stead application, from the rejection of which he duly prosecuted an appeal, and early in November contracted for the "getting out of posts" to fence the land and for the breaking of twenty acres; also for the delivery on the land of the necessary lumber, and for the building of his house, and later went to the land office to again offer his homestead application.

The delivery of said posts for fencing had begun at that time under said contract, and the lumber for the house was delivered on the land early in December, commencing, as it appears, on the same day on which Johnson filed his application.

It is true the house was not completed until the latter part of December, but it was built on the site selected and staked off by Barton in person on October 28, and where Stranahan testifies he saw the stakes and the lumber on December 10, thus combining with Barton's manifested intent and purpose to appropriate this tract, the prompt inauguration and consummation of acts illustrating that intent and purpose.

It is believed that the stated proceedings and acts of settlement were sufficient to give Barton the status and preference of a settler, at the time of the cancellation of the allotment, as against one subsequently making entry without settlement.

In the case of Moss . Dowman (176 U. S., 413, 417), the Supreme Court of the United States said:

....

Preemption and homestead laws were enacted for the benefit of the actual settler and to that end they should be construed and administered. . . . . again and again has this court affirmed the proposition that the actual settler is the beneficiary of the preemption and homestead laws of the United States. ... in Bohall v. Dilla (114 U. S., 47, 51), "Those laws are intended for the benefit of persons making a settlement upon the public lands, followed by residence and improvement and the erection of a dwelling thereon." . the question is as to the relative rights, at the moment the land becomes open to entry, of one a settler in actual occupation and one making a formal entry in the land office. For reasons heretofore stated we have no doubt that the settler is entitled to preference. We endorse what was said by the learned judge of the Circuit Court:

....

"That Dowman had acquired no rights by his settlement prior to Doran's relinquishment, and might, as respects Doran, have been regarded as a trespasser, makes no difference. When Doran relinquished, Dowman ceased to be a trespasser, and was not only an actual but a lawful settler. There was no evidence of mala fides about Dowman's settlement which should affect its legality when the time came for a right to attach to it under the land laws. .... and if Dowman knew all the antecedent facts he might well expect that an actual settler would acquire the right to the land lawfully, upon the next relinquishment, and make his settlement . . . . in good faith,

So in the case before us, Barton knew the antecedent facts of the duplicate allotment and expected that upon relinquishment or cancellation thereof, an actual settler would acquire the right to the land

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lawfully. In that expectation he employed and paid counsel to procure the cancellation of said allotment as duplicate, and in the meantime performed the acts of settlement stated. While these acts had not ripened into actual living on the land at the moment the cancellation of the allotment was noted on the local office record, they were unmistakable and ample to indicate his appropriation of the land, and they were followed in due time by the completion of his resi dence on the land before any act of settlement had been performed by Johnson, who admitted at the hearing that he had not been near the land since 1899. Had the latter, as required by law, personally examined this tract before executing his homestead application, he would have found the stakes which outlined the site of Barton's house on the land for more than thirty days prior to the cancellation of the allotment. Said allotment in its segregating effect on the land does not differ from a formal entry. Barton, though a trespasser as against the allottee and the government, was, by his stated acts, acquiring a prior right as a settler as against one making a prior application to enter who had not performed any acts of settlement.

In the opinion of the Department the case before us comes fully within the scope and rule of the cases cited, and the acts and proceedings of Barton were sufficient acts of prior settlement to reserve the land for him as against Johnson's application.

This conclusion renders it unnecessary to consider the intentions. and qualifications of Johnson.

If no other valid objection appears, Barton's application to enter the land will be allowed, your said decision being hereby reversed.

CONFIRMATION-PROCEEDING BY GOVERNMENT-PROVISO TO SECTION 7, ACT OF MARCH 3, 1891.

JOHN N. DICKERSON.

A proceeding by the government to determine the validity of an entry is com menced when the investigation is ordered, and if so commenced before the lapse of two years from the date of the final certificate, it will defeat confir mation of the entry under the proviso to section seven of the act of March 3, 1891, whether notice of such action is given to the entryman or claimant within that period or not.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) April 10, 1905.

(E. F. B.) This petition is filed by John N. Dickerson, complaining of the action of your office refusing to transmit his appeal from your decision of December 8, 1904, suspending his homestead entry for the SW. NE. 4, NE. SW. and W. SE., Sec. 11, T. 9 N., R. 2 E.,

H. M., Eureka, California, subject to his right to apply for a hearing in the manner provided by the practice of your office.

Petitioner contends that this entry was confirmed by the 7th section of the act of March 3, 1891 (26 Stat., 1095), there being no pending contest or protest against the validity of the entry at the expiration of two years from the date thereof, and hence your office had no authority to take such proceedings against it.

The final entry was made February 11, 1902. Within two years from the date of the entry a special agent advised your office that, from a partial investigation of said entry, he found a great deal of fraud had been and was being perpetrated, and requested that no patent be issued on that or any other described entries until after further investigation. Thereupon your office suspended the entry and referred it to the special agent for investigation. This action was also taken before two years had expired from the date of entry.

November 22, 1904, the special agent reported adversely as to this claim, and on December 8, 1904, your office, acting upon this report, formally suspended the entry and directed that notice be given in accordance with instructions contained in the circular of August 18, 1899 (29 L. D., 141), which allows the entryman to apply for a hearing and upon failure to do so the entry will be subject to cancellation without further investigation.

It is contended by petitioner that there was no pending contest or protest against the validity of the entry at the expiration of two years from its date, and that no proceedings had been commenced against the validity of the entry that would take this case out of the class of entries confirmed by said act.

This case is controlled by the principle announced in the case of John S. Maginnis (33 L. D., 306), in which a motion for review was denied March 3, 1905 (33 L. D., 454), and the principle was again in the latter decision fully discussed.

The literal interpretation of the act contended for by petitioner, that only a "pending contest or protest against the validity of the entry" will defeat confirmation and that a charge by a special agent upon which no hearing was ordered within the statutory period is not a proceeding of the character contemplated by the statute, has not received the sanction of the Department.

In the instructions of July 9, 1902 (31 L. D., 368), it was said that it was not contemplated that the running of the statute might be suspended by the intervention of individual contests or protests, while the government would be barred from defeating the confirmation of a fraudulent entry by similar proceedings instituted on its own motion within the time fixed by the statute; that to so construe the statute would be to restrict the operation of the land department in

the exercise of that just supervision over the disposal of the public lands conferred upon it by the organic act.

After the issuance of a final certificate no individual contest or protest can be entertained except by express permission of your office. which you may grant or refuse as in your judgment may seem proper. This is by virtue of the supervisory power and control over the disposal of the public lands to see that no part of it is wasted or disposed of to a party not entitled to it (Knight . Land Association, 142 U. S., 161), and may be exercised through the agency of individual contests or protests or through the agencies provided by law for the investigation of entries of public lands, either of which would be effective to avoid the bar of the statute and defeat confirmation if initiated within the statutory period.

Prior to the act of March 3, 1891, the land department had full power and authority to investigate and determine as to the validity of an entry up to the issuance of the patent. Its power and duty is just as effective and imperative now as it was before the passage of that act. As the agent of the government it is still required to investigate every entry and to protect the rights of the people as well as to do justice to all claimants. The act of March 3 in no wise limited this power except as to the time in which it shall be exercised. That act is founded upon the same principle as other statutes of limitation in which the general rule prevails that a proceeding to enforce the claim or right initiated within the statutory period is sufficient to suspend the running of the statute and does not depend upon a perfected service.

If it be once established that the act does not take from your office the supervisory power to proceed against a fraudulent entry or to suspend it for investigation, it must then follow that the manner of proceeding is immaterial, whether by the allowance of contests or protests, or through its accredited agents, by investigations conducted in the usual manner so as to secure accurate information as to the true status of the entryman. The proceedings are commenced from the time the investigation is ordered, and if commenced within the statutory period, it will suspend the running of the statute and defeat confirmation whether notice of such action is given to the entryman or claimant within that period or not. It is evident that notice to the claimant of such action would in many cases defeat the purpose for which the investigation was ordered. It is sufficient that the proceedings were commenced within the period fixed by statute and that the entryman has had full opportunity to defend the valid ity of his entry before a final determination has been made. The motion is denied.

FOREST RESERVE-ACT OF JUNE 4, 1897-ATTORNEY.

MAYBURY . HAZLETINE.

A party to a proceeding before the land department will not be heard to say that the attorney who represented him throughout and solely conducted such proceeding was not his authorized attorney to receive service of notice of the result thereof.

Lands within a forest reserve relinquished to the United States with a view to the selection of other lands in lieu thereof, under the exchange provisions of the act of June 4, 1897, and afterwards excluded from such reserve, are not subject to appropriation, entry, or selection under the public land laws until the relinquishment is approved and the title tendered to the United States is accepted.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) April 15, 1905. (J. R. W.)

A. J. Hazletine appealed from your office decision of September 9, 1904, denying his motion for review of your office decision of July 5, 1904, dismissing his appeal from the action of the local office of April 22, 1904, awarding to William J. Maybury, settler claimant, right to make homestead entry for the W. SW. of Sec. 5, lot 10, NE.SE. of Sec. 6, and lot 2, Sec. 7, T. 28 N., R. 13 W., Seattle, Washington, and recommending rejection of Hazletine's application, number 5388, your office series, under the act of June 4, 1897 (30 Stat., 36), to select the same land.

The case was formerly before the Department and is reported in 32 L. D., 41, to which reference is here made as to facts therein recited. February 14, 1903, Maybury filed an affidavit that he was a settler on the land, and from August 8, 1901, he maintained actual residence thereon, without absence therefrom for ten days at any one time. This affidavit was not referred to in briefs of counsel and was not in the files of the selection, so that it did not come to the notice of the Department and was not considered in said decision, October 31, 1903, said decision, so far as it adjudicated between Maybury and Hazletine, was recalled and a hearing ordered to determine the rights between Maybury and Hazletine, October 29, 1901, when Ayers's reconveyance of the land to the United States was accepted. A hearing was had before the local office, at which both parties appeared and fully participated, and April 22, 1904, the local office found that

on said 29th day of October, 1901, Maybury was in the actual occupancy of the land in question sufficient to bring the same within the purview of said last named decision [Litchfield et al. v. Anderson, 32 L. D., 299]. . . . . the evidence shows that the homestead claimant had settled upon the land on the 8th day of August, prior to the date of the opening of the same for entry, and that he had maintained residence thereon up to and including the 28th day of October, 1901, being the day preceding the opening of the land for entry; that