examinations of ground taken from the same shafts, holes, and points on the surface, from which Majors and his witnesses obtained the ground they tested, they (the former) could only get, at the best, a few scant colors of gold and very often nothing at all; that the mineral product of the land would not, at the utmost, amount to more than a few cents per day per man with plenty of water and improved processes; and that by the reasonable use of water and fertilizers the land is far more valuable for agriculture than for mining. Nearly all of the witnesses for the respective parties testified that they were experienced miners. The local officers who saw and heard the witnesses evidently gave more credence to those of the entryman, Rinda, and, I am constrained to believe, properly so, from my reading of the testimony.

The burden of proof has not been successfully carried by Majors, and his contest must therefore fail. I find no warrant to disturb the decision of your office, and the same is accordingly affirmed.

PRACTICE-RECONSIDERATION OF CASE-TIMBER CULTURE

APPLICATION.

NORTHERN PACIFIC R. R. Co. v. COFFMAN ET AL.

Prior to the issuance of patent, the land department may re-open a case, to correct an error in the decision thereof, and readjudicate the same, after due notice to the parties.

The right secured by a timber culture application, erroneously rejected and pending on appeal, may be exercised by the heir of the applicant.

Secretary Bliss to the Commissioner of the General Land Office, March (I. H. L.)

25, 1897.

(A. B. P.)

This case involves the SE. of Sec. 19, T. 15 N., R. 42 E., Walla Walla, Washington.

The land was within the limits of the executive withdrawal on amended map of general route filed by the Northern Pacific Railroad Company February 2, 1872, and fell within the indemnity limits of said company's grant on map of definite location of its road filed November 17, 1880.

It appears that Thomas H. Coffman made timber culture application for the tract in June, 1883, but the same was rejected by the local officers because of conflict with the said withdrawal of 1872. Coffinan appealed.

On March 20, 1884, the company selected the land for indemnity purposes under its grant.

The appeal of Coffman was considered by your office on October 2, 1888, and the decision below was reversed. Upon the company's appeal to this Department, your office decision was, on August 8, 1894, affirmed. Coffman was thereupon allowed thirty days after notice within which to make timber culture entry for the land, in which event

it was directed that the company's selection should be canceled, but otherwise, his application would be finally rejected and the company's selection allowed to stand.

On June 10, 1895, the local officers reported that notice had been given as directed, by letter addressed to Coffman at Colfax, Washington, but the letter had been returned uncalled for. Upon this report your office, on June 26, 1895, finally rejected Coffman's application and closed the case.

It further appears that on July 8, 1895, Maud A. Coffman filed in the local office her affidavit, dated May 13, 1895, at Bexar county, Texas, setting forth that she is the only child of Thomas Coffman, deceased; that said Thomas Coffman never exercised his right to make timber culture entry; and that at the date of his timber culture application for the land in question, he was qualified to make such an entry. She at the same time tendered the necessary fees, and formally applied to be allowed to complete the timber culture filing of her father.

The affidavit and application were at once forwarded by the local officers, and upon examination thereof your office, on August 3, 1895, re-opened the case for further consideration, and returned the applica tion papers to the local officers for appropriate action, with directions that Miss Coffman be advised thereof, and allowed thirty days within which to make entry for the land in accordance with the provisions of the timber culture law (20 Stat., 113), if found qualified and entitled to do so, in which event it was further directed that the company's selection of the land be canceled.

From this action by your office the railroad company has appealed. By the errors assigned in this appeal it is, in effect, asserted:

1. That having finally rejected the application of Thomas H. Coffman, on June 20, 1895, your office was without authority thereafter to reopen the case in the absence of any motion for rehearing by either party;

2. That Thomas H. Coffman having failed to make entry during his life, it was error to allow his daughter to complete his timber culture application by entry after his death, under the timber culture act; and 3. That in the absence of notice to the company, your office was without authority to consider, in any manner, the application of Maud A. Coffman.

The point raised by the first assignment is, in my judgment, wholly untenable. While it is true that the case was formally closed, as stated, and the company so notified by your office, it does not follow that the Land Department thereby lost jurisdiction of the land involved, prior to patent to the company, so as to absolutely preclude a reopening of the case of its own motion, or upon application of any party interested, in the event it should subsequently appear that the action in closing the case was probably premature, or otherwise erroneous in any respect. Of course it would be improper to re-open, and

proceed with the re-adjudication of a case without notice, but such does not seem to have been done or attempted in this case. The records of your office show that the attorneys of the appellant company were advised by letter the very day the action complained of was taken, not that the application of Miss Coffman had been allowed, but that the case had been that day "re-opened, with a view to the allowance of" said application, the letter closing with the statement: "You will take due notice hereof." This notice gave the company abundant opportunity to reappear and do whatever was necessary to protect its interests in the premises.

Nor is there, in my judgment, any merit in the third assignment of error. The simple act of re-opening the case was in no sense a readjudication of any question involved in it, and from the very nature of the proceeding, could not be. Notice of that act was duly given, and the company was thereby afforded every opportunity of defending the newly presented application that it could have had, if it had been notified before the case was reopened. There has been, as yet, no final action in the case in favor of Miss Coffman. She appears to have been allowed by the local officers to make timber culture entry for the land, on September 11, 1895, and the entry papers were forwarded to your office, and are filed in this record (though not properly a part thereof), but there has been no action thereon by your office. The company has still the right, and will be allowed to appear and protect its interests in the premises, by interposing such defense as it may wish. While, therefore, it would have been the better practice, upon the receipt of the application of Miss Coffman, to have notified the company to show cause, if any it could, why the case should not be re-opened for the consideration of that application, yet I do not think the failure to do so, was, under the circumstances of this case, reversible error. As the company still has opportunity to make any defense not now properly presented by its said appeal, I do not see that any good could be accomplished by sustaining its appeal in this particular even were it otherwise proper to do so.

The second assignment of error goes to the merits of the controversy as far as they can be determined at this stage of the proceeding. It involves a denial of the right of Maud A. Coffman, as the legal heir of Thomas II. Coffman (if indeed she is such) to complete the latter's application or filing by entry under the timber culture law. The facts on this point are that Thomas H. Coffman while in life, did everything he could do toward perfecting his entry. He filed his application to enter as early as June, 1883, and tendered the necessary fees, as shown, but the same was rejected for the reasons stated, which action was afterwards held to be erroneous by this Department. But for this erroneous action his entry would have been allowed and in all probability, before this time, passed to patent. Thus by the erroneous action of the local office he was prevented from making any further

compliance with the timber culture law, and was compelled to await the final adjudication of his rights upon his appeal, which he did, and although his appeal was filed in 1883, it was not acted upon until 1888, a seemingly unreasonable delay, due to no fault of his. By his affidavit filed in this case October 27, 1887, it appears that at that date he had erected two miles of fence on the land (presumably enclosing it) at a cost of $320. He also, at the same time, filed a renewal of his application to enter the land, but no action appears to have been taken thereon.

Can his heir now complete his entry, and by further compliance with the law thereunder save the land and the improvements thereon?

In the case of Southern Pacific Railroad Company v. Sturm (2 L. D., 546), which arose under the timber culture law, and was in some respects similar to this case, Secretary Teller held:

Although Sturm did not actually make an entry of the tract, he nevertheless applied in good faith so to do and tendered the requisite fees. . . . . And just as there is no difference in principle between a case where the filing was recorded and one where the filing was offered and rejected, neither is there any difference in such a case as this, sof ar as the applicant's rights are concerned, for they inure to the benefit of the heirs. That the tract was subject to his entry cannot, in the light of the aforesaid state of facts, be questioned. His right to enter the tract was not prejudiced by the register and receiver's denial of his application. See Duffy r. Northern Pacific Railroad Company (2 Copp, 51), and Shepley et al. v. Cowan et al. (91 U. S., 330).

But inasmuch as he was prevented by death from perfecting his application, entry will be allowed in proper form in the name of his heirs, provided the same is made within ninety days from receipt of notice hereof.

The principle announced in that case has been followed by the Department in a number of cases. In Tobias Beckner (6 L. D., 134–7) it was

said:

The broad underlying principle that controls the question is-that when a person initiates any right in compliance with, and by authority of the public land laws, and dies before completing or perfecting that right, it will not escheat and revert to the government, but inure to those on whom the law and natural justice cast a man's property, and the fruits of his labor after his death.

See also the case of Rosenburg v. Hale's Heirs (9 L. D., 161); O'Conner v. Hall et al. (13 L. D., 34); Thompson r. Ogden (14 L. D., 65); Bellamy v. Cox (24 L. D., 181).

In the present case the right of entry was lawfully initiated by Thomas H. Coffman by the filing of his application and the tender by him of the requisite fees; and he appears to have done all he could to perfect his entry while in life. The land was undoubtedly subject to entry when his application was presented; and, therefore, the right initiated by him could not be prejudiced by the action of the local officers in rejecting his claim.

Under the authorities cited, I am of the opinion that upon his death. the right thus initiated, though uncompleted, inured to his heirs, and that they should be allowed to perfect the right by entry under the

timber culture law. The application of Maud A. Coffman, as such heir, however, is not before me for action on this appeal, and no question relative to that application as allowed by the local officers is intended to be decided. All that is now decided is that the lawful heir or heirs, if any, of Thomas H. Coffman should be allowed to perfect the entry initiated by him. Whether Maud A. Coffman has properly shown her self to be such heir is not a question now before me. Upon that question the company will be allowed ample opportunity of proper defense. In view of the foregoing, I find no error in the decision appealed from, and the same is therefore affirmed.

LAND RESERVED FROM ENTRY-APPLICATION.

LOWELL D. TETER.

Lands embraced within a departmental order directing their reservation until further instructions are not subject to entry during the pendency of said order.

Secretary Bliss to the Commissioner of the General Land Office, March (I. II. L.)

25, 1897.

(C. J. G.)

I have considered the appeal of Lowell D. Teter from your office decision of March 29, 1895, wherem is affirmed the action of the local office in rejecting his homestead application for the W. of SW. 4, Sec. 13, T. 17 N., R. 2 E., Guthrie land district, Oklahoma.

The said application was rejected

for the reason that the schedule of lands opened to settlement by the President's proclamation dated September 18, 1891, on September 22, 1891, does not show tract described to be open to entry.

The record shows that the land in question was embraced in allotment No. 104, made to Sydney, an Iowa Indian. The said allotment was approved by the Department and patent regularly issued therefor. Subsequently, under the provisions of the act of October 19, 1888 (25) Stat., 612), the said Indian relinquished said land to the United States, and the patent therefor was canceled. At the same time your office was "directed to reserve the lands thus relinquished until further instructions concerning the disposition of them.”

If there were any question as to the proper disposition of the land embraced in this allotment after its relinquishment by the allottee and the cancellation of the patent, or from whatever cause, the Secretary of the Interior undoubtedly possessed the power and authority to hold said land in reservation subject to future instructions. In the case of Wolsey v. Chapman (101 U. S., 755) the supreme court held that the act or order of the head of a Department, within the scope of his power or authority, is in contemplation of law, the act or order of the President. So long, therefore, as the instructions referred to remain unrevoked,