PRACTICE-AFFIDAVIT OF CONTEST-EVIDENCE.

BUSHNELL v. EARL.

A defendant who appears in response to a citation and submits his testimony without objection to the affidavit of contest will not be subsequently heard to question its regularity.

Under rule 35 of practice a notary public may be properly designated to take testimony in contest cases.

The personal delivery by the officer of testimony so taken, instead of sealing and mailing the same as required by the rules of practice, does not preclude its consideration, in the absence of a showing that any rights have been prejudiced thereby.

A party that fails to appear on the day fixed for hearing will not be permitted to plead want of notice of adjourned proceedings.

First Assistant Secretary Sims to the Commissioner of the General Land Office, July 6, 1893.

Sarah Earl has appealed from your decision of July 8, 1892, holding for cancellation her homestead entry for lot 1 and the SE. of the NE. and the N. of the NE., Sec. 19, T. 24 S., R. 10 E., M. D. M., San Francisco, California, upon the contest of Edwin D. Bushnell.

The contest was initiated January 25, 1890, by filing in the local office an affidavit, made before a notary public, of Monterey county, California, charging: non-residence on the land, abandonment, lack of good faith, lack of cultivation, and claim of residence elsewhere for more than six months.

Notice was duly issued by the register, citing the parties to appear and offer their testimony before F. J. Alexander, notary public, on March 18, 1890, hearing to be had at the local office, to consider the testimony, on the 25th of the same month. All the parties appeared and submitted their testimony before said notary, without objection from either side. This testimony, after being duly signed and certified, was delivered in person by the notary taking the same to the local officers.

It appears that on March 25, 1890, the day set for the hearing at the local office, the office of register was vacant, and for this reason the hearing was postponed, but not to a day fixed, and it was not until December 12, 1890, that the local officers rendered their decision recommending the entry for cancellation.

The defendant's attorneys did not appear on March 25th, the day set for the hearing, and were never notified of the deferred hearing. They now complain that the proceedings were irregular and illegal from the start, because: 1st, The affidavit of contest was sworn to before a notary public, and for that reason the contest should have been dismissed.

This objection can not be sustained, because they appeared in obedi

ence to a summons from the register based on said affidavit, and entered into the trial before the duly commissioned notary, without protest or objection to the affidavit. Having so appeared and submitted their testimony, this defendant must be considered as having waived any irregularity in the process or method by which she was brought into court.

2d, It is insisted that there is no authority in law for a notary public to hear the testimony.

The manner of conducting these investigations is not pointed out by statute, but left to the Commissioner of the General Land Office, with the approval of this Department, to make rules and regulations for the conduct of the same.

Rule 35 of the Rules of Practice says that testimony in contest cases may be taken "in the discretion of registers and receivers " before a United States commissioner or other officer authorized to administer oaths.

By numerous decisions of this Department a notary public is held to be one of such "other officers," and the history of these litigations shows that notaries-public are frequently designated to take such testimony when the witnesses are not convenient to the local office.

The third contention is that there was substantial error on the part of the local officers in hearing the case at a day different from that specified in the summons, without notifying the claimant of the day subsequently fixed for such hearing.

This objection can not be sustained. The original notice informed the claimant that the hearing would be had on the 25th of March, 1890, and it appears from the record that the claimant did not appear on that day, either in person or by attorney. The notice was regular and cited her to appear upon that day.

If she desired to be heard at such hearing, it was her duty to appear, and, although the hearing could not have been had at that time owing to the vacancy in the office of register, yet the receiver was authorized to adjourn the hearing from time to time until the vacancy could be filled and the case considered. By thus appearing she could have been informed as to the day of hearing.

The original summons brought her into court, and in contemplation. of law she was thenceforward properly in court for all purposes, and charged with notice of all proceedings in connection with the case on trial.

But, aside from this, there seems to be no real merit in the objection, because it is not shown that the claimant has lost any right by her failure to be present at the hearing. The evidence was all taken before the notary public, and it only remained for the register and receiver to consider such evidence on the day set for the hearing and render their decision thereon. If it was shown here that claimant had any substantial reason for being present thereat, such as asking to be allowed to

introduce other important material evidence that would probably change the judgment, with a proper excuse for not having submitted it before the notary, in the exercise of my supervisory authority, I might properly allow a rehearing for that purpose. But no such showing is made, and I am asked to set aside the judgment and proceedings, and dismiss the contest, upon the technical grounds above stated. The claim that your judgment should be arrested, because the notary personally delivered the testimony to the local officers, instead of sealing and mailing it, as contemplated by the rules of practice, is without merit for the same reason-namely, it is not shown that any of the rights of claimant were prejudiced thereby. The evidence reached the office without alteration; it was duly considered and judgment rendered thereon, and I shall not disturb it for the sole reason that the record was received from the hands of the notary, instead of the post

master.

The testimony has been examined, and in my opinion clearly sustains your judgment.

There was a motion made before your office to consolidate this case with that of C. R. Bushnell v. William L. Earl, which motion does not seem to have been acted upon by your predecessor. It is hereby overruled.

The judgment appealed from is affirmed.

RAILROAD GRANT-ADJUSTMENT.

FLORIDA CENTRAL AND PENINSULAR R. R. Co.

(ON REVIEW.)

The right to the grant conveyed by the act of May 17, 1856, has not been forfeited by any act of the Florida R. R. Co. or its successors, and the State has by no act of its legislature denied to said company the benefits of said grant, and it is therefore the duty of the Department to adjust said grant in accordance with the provisions of said act.

Secretary Smith to the Commissioner of the General Land Office, July 7,

1893.

A motion has been filed by the Hon. Wilkinson Call, asking that the action of the Department, on February 15, 1893, approving certain lists of lands to the State of Florida on account of the grant made to said State to aid in the construction of a railroad" from Amelia Island on the Atlantic to the waters of Tampa Bay, with a branch to Cedar Keys on the Gulf of Mexico," by the act of May 17, 1856, be revoked and set aside.

I thereupon directed that action upon said approved lists be suspended until I could examine into the matter complained of. I have since heard oral argument in support of said motion, and after a full

and careful consideration of the whole question, I see no reason to revoke the action of my predecessor.

I have also examined carefully every act passed by the State of Florida to which attention was called in the argument on said motion, and, in my judgment, most of the acts referred to have no application. to the issues involved in this controversy. Upon an examination of the acts of the legislature of Florida that bear upon this question, I do not find that any declaration has been made by said State that the company was not entitled to the benefits of the grant of May 17, 1856, nor that any action was taken by said State attempting in any manner to impair the rights of the road thereunder, which became vested upon the filing of its map of definite location in 1857.

By reference to the several decisions made by this Department upon the issues now involved, it will be seen that the right of this road to the grant under the act of May 17, 1856, has never been questioned. Secretary Chandler, in his decision of April 29, 1876, refused to allow the company to file a map of definite location of the road after the expiration of the time within which, by the terms of the grant, the road was required to be completed. But when the question came before Secretary Schurz, it was upon the application of the company to file a copy of the original map of definite location, made in 1857, and filed with the Commissioner of the General Land Office, which was allowed on January 28, 1881. His decision was affirmed by Secretary Teller in his decision of January 30, 1884 (2 L. D., 561); by Secretary Lamar on August 30, 1886 (5 L. D., 107); and by Secretary Noble on March 2, 1893 (16 L. D., 217)—all holding that the right to the grant conveyed by the act of May 17, 1856, has not been forfeited by any act of the Florida Railroad Company or its successors, and that the State of Florida has by no act of its legislature denied to said company the benefits of said grant, but has through its executive recognized the rights of said company thereunder, and that it is therefore the duty of the Department to adjust the grant, in accordance with the provisions of said act. Every question presented by Senator Call in the argument upon this motion appears to have been fully considered and passed upon by my predecessors; and the several acts which he refers to and cites in support of his position that no location was ever made within the lifetime of the grant, and that no grant of this land was ever made by the State to the Florida Railroad Company, and that the State of Florida by continuous legislation since 1866 has repeatedly denied to the Florida Railroad Company any of the benefits of this grant, were fully considered by my predecessors in their several decisions, and a contrary conclusion reached.

No additional fact has been submitted, nor any law referred to, that was not considered by the Department in the decisions heretofore rendered; and, as I find no error in the conclusion reached, I must deny the motion, and direct that the order of April 10, 1893, suspending the approval of said lists, be revoked.

SOUTH OKLAHOMA v. COUCH ET AL.

Motion for review of departmental decision of February 14, 1893, 16 L. D., 132, denied by Secretary Smith, July 7, 1893.

RAILROAD GRANT-WITHDRAWAL ON GENERAL ROUTE.

COLE v. NORTHERN PACIFIC R. R. Co.

Section 6 of the grant of July 2, 1864, to the Northern Pacific railroad company provides for but one legislative withdrawal on the filing of a map of general route, which becomes at once effective on the approval of said map, and exhausts the legislative will with respect to such preliminary withdrawal, and precludes the subsequent exercise of executive authority to make a further withdrawal for such purpose on a second or amended map of general route.

The map approved August 13, 1870, designated the general route of said road through the Territory of Washington, and authorized the only withdrawal therefor. The later withdrawal based on the amended map of February 21, 1872, was without authority of law, and inoperative as against the subsequent acquisition of settlement rights.

During the pendency of a motion for review before the Department the General Land Office is without jurisdiction to make any disposition of the lands involved. Secretary Smith to the Commissioner of the General Land Office, July 7,

1893.

On August 2, 1888, the Department rendered a decision in the case of the Northern Pacific Railroad Company v. Guilford Miller (7 L. D., 100), affirming the decision of your office refusing to cancel the homestead entry of Miller, for the SE. of Sec. 21, T. 15 N., R. 42 E., Walla Walla, Washington. After said decision was rendered, the case of Charles Cole v. Northern Pacific Railroad Company, then pending before the Department on appeal of Cole from the decision of your office rejecting his application to make homestead entry of the SE. of Sec. 19, T. 16 N., R. 44 E., Spokane Falls, Washington, was decided-the Department holding that the facts are in all essential respects similar to those in the case of Northern Pacific Railroad Company v. Guilford Miller, and for the reasons therein given reversed the decision of your office.

Similar decisions were made in eighty other cases against the same company, reversing the action of your office rejecting the respective applications, and holding that all of said cases are controlled by the decision in the case of Guilford Miller.

No motion for review was filed in the case of Miller, and the decision of the Department, so far as it affects his rights, as against the railroad company, has become final. But in the case of Cole and in the other cases above mentioned motions for review were filed within the time prescribed by the rules, which have since been pending in the Department undetermined.