laratory statement. This decision was affirmed by letter of November 23, 1887.

It is shown that Edmon made his homestead entry, as directed, and upon January 3, 1889, made final proof. The plaintiff appeared and protested against the same but on what ground, I am not able to state, inasmuch as the affidavit of the protest does not seem to be with the files. A mass of testimony was taken at this time and as a result thereof, the local officers held that the applicant, Edmon, had not resided on the land for five years as required by law, but recommended that he be allowed to make new proof within the lifetime of his entry showing full compliance with the law. Kearce appealed from this decision.

You by letter of May 26, 1890, sustained the local officers in their action rejecting the application to purchase under the act of March 3, 1887, and closed your opinion by saying: "But the sufficiency of Edmon's showing of settlement and occupancy will be considered in a future communication." The applicant appealed from your decision rejecting his application to enter the said land under said act for the following grounds of error, to wit:

First. For that the said decision is contrary to law, and

Second. For that the said decision is contrary to the facts as presented in plaintiff's application of purchase as aforesaid.

It will be noticed that there is no appeal taken from your conclusion to consider Edmon's showing of settlement and occupancy in a future communication, so the only question presented here is upon Kearce's right to purchase under the act of Congress above cited.

The record shows that this land was originally excepted from the grant to the railway company, by reason of prior settlement; that said company selected it February 15, 1881, but its selection was canceled December 8, 1881; it also shows that the purchase money paid by Frost to the company was returned to him, with accrued interest; also that Frost returned to Kearce the purchase money paid, together with five years' interest thereon. This Department has decided that the appellant's original pre-emption filing should be canceled for the reason that he had not complied with the law in regard to residence, and again after a further hearing this decision was affirmed and it was further found that he was not a qualified pre-emptor; the land has never been certified or patented to the railway company, and that a settlement was made on the land subsequent to December 1, 1882, by Edmon, the defendant, under the settlement laws of the United States.

It is very clear to my mind that Mr. Kearce does not bring himself within the provisions of said act. Wright v. Coble, 9 L. D., 199. The Attorney General discussing this question, says:

The whole scope of the law from the second to the sixth section inclusive is remedial. Its intent is to relieve from loss settlers and bona fide purchasers who, through the erroneous or wrongful disposition of the land in the grants, by the officers of the government, or by the railroads, have lost their rights or acquired equities, which in justice should be recognized.

Attorney General, 6 L. D., 272. Again it is said in the instructions of Secretary Lamar, November 22, 1887 (id., 276),

This section (3) does not embrace any lands that have been certified or patented to the company, but has reference solely to lands, their right and claim to which has heretofore been adjudicated in favor of the company as against the right of a settler upon said lands, etc.

I find no error in your ruling; your decision is, therefore, affirmed; the application will be rejected.

TIMBER CULTURE-FINAL PROOF-SPECIAL AGENT.

SYLVANUS P. BARTLETT.

There is no authority for the acceptance of final timber culture proof if submitted prior to the expiration of eight years from the date of the original entry.

A special agent should not examine claims and report thereon at the request of interested parties.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 6, 1892.

I have examined the appeal of Sylvanus P. Bartlett from your decision of October 30, 1890, rejecting final proof on his timber culture entry for NW. Sec. 2, T. 12 S., R. 23 W., Wa-Keeney land district, Kansas. He made this entry October 24, 1885, and on September 9, 1890, submitted final proof thereon.

It appears that on November 26, 1883, one Albert W. Smith made timber culture entry of the land in question; that sometime in December, 1883, Bartlett purchased of him his improvements upon the land and paid him the sum of $500 therefor, in consideration of which Smith agreed to relinquish all right and interest to said tract; but on receiv ing the purchase money he declined to execute said relinquishment; that Bartlett to secure possession of the land instituted contest against Smith's entry and under date of October 17, 1884, said contest was sustained and the entry of Smith cancelled.

It further appears that about eighty acres of said tract had been broken and cultivated by Smith and other parties for three or four years prior to Bartlett's entry; that after making his entry Bartlett continued said cultivation; that in April, 1885, he planted two and a half acres with trees and in the following November set out nine acres more.

The evidence as to the planting of a sufficient number of trees and the care and cultivation of the same, for a period of nearly six years appears satisfactory, but as the final proof of Bartlett was presented within six years from date of entry the local officers rejected the same, from which action he appealed and under date of October 30, 1890, you affirmed the judgment below, whereupon he again appealed.

The act of June 14, 1878 (20 Stat., 113), provides: That any person

who is the head of a family or who has arrived at the age of twenty-one years, and is a citizen of the United States or who shall have filed his declaration of intention to become such, "who shall plant, protect, and keep in a healthy growing condition for eight years ten acres of timber, on any quarter section of any of the public lands of the United States," shall be entitled to a patent for the whole of said quarter section "at the expiration of said eight years on making proof of such fact by not less than two credible witnesses."

Section two provides:

That no final certificate shall be given, or patent issued for the land so entered, until the expiration of eight years from the date of such entry.

Thus it will be seen that the law is clear and specific in the requirement that a timber-culture entryman shall not only plant and cultivate ten acres of trees, for a period of eight years from date of entry, but that final proof on such entry, cannot be accepted until after the expiration of the period named, and no certificate, or patent shall issue in such cases until after the expiration of eight years from date of entry. Counsel for the appellant claims that the law has been fully complied with, furthermore cites several departmental decisions to sustain his argument that the party is entitled to credit for the time the breaking and cultivation were made prior to date of entry and therefore that final certificate should issue in the case.

Counsel, however, overlooks the important fact that the credit allowed in said decisions refers solely to the acts of the entryman within the eight years, and that there is nothing in said citations that in any manner authorizes final proof to be made and final certificate to be issued in a less period than eight years.

This question was fully gone over in the case of John N. Lindback, 9 L. D., 284, more than a year prior to the time that the register and receiver passed upon the proof in this case, and there it is held:

A proper construction of the timber-culture act requires that the period of cultivation should be computed from the time when the requisite acreage is planted. A departmental construction of a statute, while in force, has all the effect of law, and acts done thereunder must be regarded as legal, and entitled to protection at the hands of the Department.

In timber-culture entries made prior to the regulations of June 27, 1887, the time occupied in the preparation of the soil and planting the trees may be computed on final proof, as forming a part of the statutory period of cultivation.

and such is the settled law of the department.

I note in connection with this case that a special agent of your office, has submitted a report at the "request of the appellant" recommending that his proof be accepted notwithstanding the fact that the local officers had already rejected it as premature. Such action on the part of a special agent, in the face of his instructions and the law, it seems to me is reprehensible. He is supposed to represent the law and the government, and it does not seem that the standard of his service can well be sustained where he assumes the authority to make examination

of claims and reports thereon at the request of interested parties, for the purpose of overruling the decision of the register and receiver. He should be admonished that he has filled the measure of his duty to the government when he faithfully observes and follows his instructions. Your decision is affirmed.

DESERT LAND ENTRY-FINAL PROOF.

JOHN B. BRANCH.

Final desert proof may be properly rejected, if not made in the manner prescribed by the regulations, and before an officer authorized to act in such matter. Where the statutory period for the submission of final proof has expired, and opportunity is given to submit the same within a specified time, if not presented within such time, it should be rejected, in the absence of due cause shown for delay.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 8, 1892.

The land involved in this appeal is the W. of the NW. and NW. of SW., and lots 2, 4, 12 and 13, Sec. 26, T. 33 N., R. 76 W., as appears by the survey approved November 22, 1887, Cheyenne, Wyoming, land district.

The record shows that John B. Branch made desert land entry April 7, 1884, of the E. of Sec. 27, and the W. of Sec. 26, T. 33 N., R. 76 W. Per instructions by your predecessor of September 14, 1885, the entryman amended his location March 17, 1886, as follows: E. of Sec. 27, and lots 1, 2, 3, 4, 5 and 6, of Sec. 26, same township and range.

On November 21, 1887, the local officers furnished you with a list of the desert land entrymen who had been notified by registered mail under date of August 8, 1887, of the expiration of the time allowed for making proof and payment, and in the list appears the name of Branch. By letter of January 27, 1888, you directed the local officers to cancel his entry. Thereafter a petition and corroborative affidavits were presented to you by the entryman, asking that his entry be re-instated and that he be allowed to make final proof. The showing was sufficient to warrant you in so doing. You therefore, April 27, 1889, instructed the register and receiver to "advise Mr. Branch that, if he is now prepared, he will be allowed sixty days from notice hereof within to present proof." Notice of this decision was served on the attorney of record of the entryman on May 1, 1889. On April 26, 1890, Branch presented his final proof describing the land as the W. of the NW., NW. of SW. and lots 2, 4, 12 and 13, of the section, township and range above given. Said proof was rejected by the local officers "because more than sixty days have transpired since Commissioner directed the acceptance of the proof;" whereupon Branch appealed.

You, by letter of August 30, 1890, sustained the decision of the local officers on the ground that Branch did not present his final proof within the period required and that one year thereafter he presented "on a small portion of his amended entry the two lots not included therein," and that good faith on the part of the entryman is not apparent from the facts set forth. He appealed from your decision, assigning as error your action affirming the decision of the register and receiver; in rejecting final proof, and in holding that Branch should not be permitted to submit final proof upon his entry.

This appeal might be dismissed for the reason that the specification of errors is not in conformity with the rules of practice-Rule 88-but inasmuch as the record is before me I will pass upon it on its merits.

The records of your office show that the amended application was probably required by reason of the fact of the re-survey of the land in that neighborhood, made for the purpose of defining the boundaries of the Fort Fetterman hay reservation, which was approved May 29, 1884. The lots claimed in the amended application include all the land in the W. of Sec. 26, that had not been reserved. A later survey was made and approved November 22, 1887, and the description given in the final proof of the applicant contains all the ground in said W. of 26, that has not been reserved, and the land is correctly described. It will be noticed that he has made no showing whatever which entitles him to make final proof at this time, and the proof comes in such an irregular shape that the local officers were fully justified in rejecting it on other grounds as well as that mentioned. It seems that the applicant is a resident of Providence, Rhode Island, and an examination of his final proof elicits the fact that he knows but very little, of anything, about the condition of the land. His deposition was taken in Providence, Rhode Island, April 28, 1890, and he closes it with this statement:

I desire to state that my answers to the foregoing questions so far as they relate to the land in my entry and its irrigation and reclamation, are made from informa tion and belief.

This is too indefinite and uncertain to be permitted in final proof. The depositions of his witnesses were taken before the clerk of the cir cuit court in Cheyenne, April 10, 1890, in the same town wherein the land office for that district is located. The law and the rules of practice do not permit of such a procedure. Rule 7, of the circular of June 27, 1887, (5 L. D., 708), is as follows:

The declaration and corroborating affidavits may be made before either the register or receiver of the land district in which the lands are situated, or before the judge or clerk of a court of record of the county in which the lands are situated, and if the lands are in an unorganized county then the affidavit may be made in an adjacent county. The depositions of applicant and witnesses in making final proof must be taken in the same manner; and the authority of any practice or regulation permitting original or final desert land affidavits to be executed before any other officers than those named above, is hereby revoked. The affidavits of applicant and witnesses must in every instance, either of orignal application or final proof, be made at the same time and place and before the same officer.