for appeals by the Division of Investigations from decisions of the Commissioner of the General Land Office (43 CFR 222.13). 57-169 The allowance of appeals to the Secretary from the orders of the Director (Bituminous Coal Division) by dissatisfied parties is not required by law. It would be proper as a matter of law for the Secretary to review the docket to determine whether the conclusions of the Director conform with the law and general administrative policy. The determination of the relative advantages and disadvantages of review by appeal over other methods of review is an administrative function for the discretion of the Secretary. 57-428 Applicant for homestead entry entered military service while an appeal was pending before the Department from the decision of the Commissioner of the General Land Office rejecting his application: Held, (1) where an appeal is filed and perfected by an applicant for homestead entry prior to his entrance into the military service, action on the appeal in the regular course is not stayed by notice of military service; (2) in order for administrative action to be suspended in a public land proceeding involving a person in the military service it must appear that if action is taken in the regular course the initiated or acquired rights of such a person may, by reason of the fact that he is in the military service, be prejudiced thereby; (3) where an applicant for homestead entry in the military service is entitled by departmental regulations to a rehearing but, before filing and perfecting a motion for rehearing, he requests that final action on the entry be suspended during the period of his military service, action on the rehearing will be suspended during the period of military service, unless the applicant subsequently elects to proceed with the case during his service period. 58-138 Under the rules on Government contests (43 CFR 222.13), special agents of the General Land Office do not appeal from registers' decisions adverse to the Government. Such decisions are merely advisory and are, therefore, reviewed by the Commissioner of the General Land Office as of A decision rendered on the appeal of one party to a controversy will not redound to the benefit of any other party thereto who has failed to appeal except where joint interests are involved which are so related that the rights of all will be affected by any decree made with respect to the rights of any one. 52-529 While an appeal brings up the whole record, it is only for the purpose of enabling the department to determine the questions presented by the errors assigned, and not for the discovery of error which may have been committed affecting the rights of one who makes no complaint and who is not seeking to have it corrected. Failure to Appeal 52-529 Where in a contest proceeding a decision is rendered holding the entry for cancellation but denying a preference right to the contestant, an appeal by the contestee from that part of the decision affecting his rights will not entitle the contestant, who failed to appeal within due time, thereafter to assert a preference right in the presence of an adverse claim even though the decision as to him may have been erroneous. 52-529 Where contestee fails to appeal from an adverse decision of the register, under Rule 50 of Practice, in the absence of fraud or gross irregularity the decision becomes final, and the contestee loses all interest he has in the land and any rights he might have asserted, including objections to the sufficiency of the contest affidavits or other irregularities, leaving the question of the preference right of the contestant solely one between the contestant and the Government. 56-22 The holder of an oil and gas lease whose lease is improperly canceled and who fails to appeal from the cancellation loses his rights in his lease. 61-355 Where several oil and gas leases are canceled for the same reason, an appeal by one lessee does not bring before the Department the interests of the other lessees who have failed to appeal. Service on Adverse Party 61-355 Where a protest against an application was not allowed, no hearing directed on a controverted issue of fact, and the application was not denied upon any disputed question of fact but solely upon the applicant's showings, the protestant is not a party within the meaning of the rules of practice which require that notice of appeal should be served on the opposite party. 56-276 The requirement of section 9(1) of the Federal Range Code (43 CFR, 1944 Cum. Supp., 501.9 (7)), that a copy of an appeal and brief in support thereof must be served on each party of record, applies only to parties who are adversaries such as appellants and interveners, and neither requires the service of appeals on the advisory board, or the district or regional graziers, nor contemplates the filing of a reply brief by the latter. 58-687 An appeal will be dimissed where a copy of the appeal was not served upon an adverse party. 61-355 An appellant taking an appeal to the Secretary of the Interior complies with the Rules of Practice requiring service of notice of the appeal upon the adverse party by serving the attorney who represented that party in the proceeding before the Director of the Bureau of Land Management, even though the attorney has meanwhile been dismissed, where the record fails to show that the adverse party gave notice to the appellant of the attorney's dismissal. 61-379 Standing to Appeal Instructions of May 18, 1933, providing for appeals and motions for rehearing by special agents in charge (Cir. No. 1299) amending Cir. No. 460 (44 L.D. 572). 54-214 An assignee of an oil and gas lease whose assignment has not been approved but is apparently in compliance with applicable statutory and regulatory requirements has standing as an "aggrieved person" to appeal to the Secretary from a decision canceling the assigned lease. 61-355 Timely Filing Rules of Practice limiting the time in which appeals may be taken and motions for rehearing made are of the greatest practical importance, being necessary to put a period to vexatious litigation and to secure to the parties litigant the termination of their legal controversies, and, at least in cases inter partes, will be strictly enforced in the absence of valid excuse or of circumstances strongly calling for the exercise of the directory and supervisory power conferred upon the Department by law. 54-144 Rule 76 of Practice prescribes that notice of appeal from the Commissioner's decision must be served on the adverse party and filed in the office of the register or in the General Land Office within 30 days from the date of service of notice of such decision. 54-145 An appeal to the Secretary of the Interior from a decision of the Director of the Bureau of Land Management will be dismissed when notice of appeal is not filed within 30 days from service upon the appellant of the decision from which an appeal is taken. 61-337 III. EVIDENCE A contestee who submits testimony before an officer other than the register, after having demurred to the contestant's evidence, is deemed to have elected in advance not to stand upon his demurrer should it be overruled by the register. 52-177 Where no direct reference is made in the decision of the register to a demurrer of the contestee as to the contestant's evidence, the presumption will prevail that due consideration was given to the demurrer before a decision on the merits was rendered. 52-177 Where adverse charges are preferred by the Government against a mining location conflicting with certain homestead entries or oil and gas permit applications and the opposing claimants, upon due notice, fail to assert their rights, the burden of proof to establish the charges is upon the Government. 52-313 Under the general rule of law a statute is in force and operation during the entire day of its approval, subject to the privilege of any person having a substantial right that may be affected thereby to prove that a claim filed on that day was actually initiated before the exact time of the approval of the act. 52-336 Section 2291, Revised Statutes, contemplates that a homestead entryman shall, upon the submission of final proof, appear personally before the proof-taking officer, and an exception to that requirement for the purpose of granting equitable consideration to a mortgagee will be considered only upon a showing that the testimony of the entryman cannot be obtained. 52-514 An oath in support of a stock-raising homestead application alleging that no part of the land applied for is claimed, occupied, or being worked under the mining laws, or occupied or appropriated under any other public land law except by the claimant himself, establishes a prima facie case that the land was unoccupied and unappropriated, and where the entry was regularly allowed the burden of proof is upon a mineral claimant asserting a right under the mining laws to establish by extrinsic evidence the illegality of the entry. 53-382 Where no record of naturalization can be produced evidence that one had declared his intention of becoming a citizen and had alleged under oath in an application to make entry of public land that he was a citizen of the United States is sufficient to warrant the holding in a land case that he had been duly naturalized as a citizen. Boyd v. Thayer (143 U.S. 135). 53-648 If a mineral claimant brings a contest against a regularly allowed homestead entry and uses an official mineral survey of his claim as evidence of the existence of conflict, the survey is not conclusive as to the location of his claim and the entryman has the right to impeach it in the Land Department, if not made in accordance with the law and regulations or if it is fraudulent or erroneous. 54-48 Where the plat and field notes of a mineral survey, of which the Land Department takes official notice, prima facie establish a conflict between a mining claim and a homestead entry, such evidence will be regarded as conclusive unless successfully impeached. 54-48 Where expert opinion evidence conflicts as to whether the deposits of sodium borates in question were natural evaporation residues dissolved in and accumulated by surface ground-water drainage or were hot springs products of fumarolic type, and such opinions are no more than theory and assumption and no way proved, if the adoption by the Department of the more plausible and probable theory would run counter to the conclusion of eminent scientists on a highly technical question, and subject a mining claimant to the probable loss of all benefits from his explorations and development at large cost made on the faith of an opposing theory, the Department will adopt the latter theory in disposing of the case. 54-183 A defendant in a hearing before a local land office, after being called by the Government as a witness in its behalf and submitting some testimony, declined to further testify in that relation and left the witness stand. Held, That the testimony so given and the action in refusing to answer further questions and leaving While the findings of registers upon the weight and interpretation to be given evidence adduced at hearings before them, and the affirmance of their findings by the General Land Office, are matters which may well be considered and given weight by the Secretary in cases before him on appeal, they do not preclude him from making other or different findings. Held, That Sec. 36, T. 30 S.R. 23 E., M.D.B. & M., California, was known mineral (oil and gas) land before, on, and after Jan. 26, 1903, the date when the survey officially establishing the boundaries of the section was approved by the Commissioner of the General Land Office. 55-534 Professional papers and bulletins reflecting the opinions of their author on the sodium deposits in dispute, but not offered in evidence before the register, may not be considered as evidence on appeal. 58-426 In considering an appeal in a noncontest case, the Director of the Bureau of Land Management may obtain and consider evidence which was not before the subordinate bureau official from whose decision the appeal was taken, and may decide the appeal on the basis of such evidence. 60-454 IV. GOVERNMENT CONTESTS Where adverse charges are preferred by the Government against a mining location conflicting with certain homestead entries or oil and gas permit applications and the opposing claimants, upon due notice, fail to assert their rights, the burden of proof to establish the charges is upon the Government. 52-313 Defendants in land proceedings should not be compelled to combat a case piecemeal because it is brought by the Government, except by stipulation or proper showing satisfactory to the register that the public interest requires a continuance. 52-437 An order issued by the Commissioner of the General Land Office directing proceedings against the validity of an entry will defeat the confirmatory effect of the proviso to section 7 of the act of Mar 3, 1891 (26 Stat. 1095), even if no party be named therein, and the date of the issuance and service of notice upon the real party in interest is immaterial. 52-508 The rule that an answer which fails to deny a charge is insufficient to warrant a hearing and must be taken as an admission of its truth under the regulations relating to contests on report by representatives of the General Land Office is equally applicable to protests preferred by the Forest Service. 53-175 Where a claimant elects to stand on his answer to a charge and does not choose to support his contention as to the legal insufficiency of the charge by filling brief and argument before the case is reached in its order for examination in the Land Department, he will not thereafter be heard to assert that he was deprived of his day in court because subsequently denied the privilege of filing brief and argument. 53-175 Rule 13 of Practice requires that an answer must specifically meet and respond to the allegations of the charge, and a denial in an answer to a charge based on mere information and belief that the required work on a mining claim was not fully performed is not sufficient to fulfill the requirement. 53-572 Where the Land Department initiates proceedings to forfeit a claim, if the claimant fails to deny the charges and to apply for a hearing, or to submit a statement of facts rendering the charges immaterial, such failure must be taken as an admission of the charges and obviates the necessity of a hearing. 53-572 In a case involving a contest of parties, or where adverse proceedings on the part of the Government are opposed by the entryman, and testimony has been adduced at a hearing called, it is not proper to remand the case for rehearing without first passing upon the defendant's testimony and refusal to answer questions. 54-276 In adverse proceedings by the Government, a demurrer which is not a defense to the whole of the charge or charges must be overruled. 55-341 Failure to secure the signatures of witnesses to depositions and interrogatories is a curable defect, and does not warrant dismissal of adverse proceedings brought by the Government against an entry, and upon receipt of depositions, duly signed, which were formerly inadmissible as evidence because of the absence of signature, the defendant should be afforded opportunity to adduce testimony. 55-389 Where in a trial of issues before the Land Department, the parties shall, by stipulation filed with the record so agree, or where the defendant has failed to appear or fails to participate in the trial, and the contestant shall, in writing, so request, the witnesses' subscription to their testimony may be dispensed with. 55-389 A stipulation in one action affects another between the same parties only if it is of such a nature as to warrant a dismissal of the action as a matter of law or if either the agreement upon or the performance of its terms tends toward a determination of the issue involved. 55-532 ment of the costs of the record he makes and must make a deposit to cover such costs before the contest hearing is held. A contestee who refuses to make such deposit is not entitled to offer evidence, to participate in the hearing or even to introduce into the record any papers which require notation (43 CFR, 1940, 216.18, 221.53, 221.57). 58-670 Under departmental Rules of Practice the register (now manager) has authority to fix the time and place of a contest hearing and his action will not be interfered with unless he exceeds his authority. It is not abuse of discretion to fix a place for hearing at which witnesses living in the vicinity of the lands in controversy can be compelled to attend by subpoena (43 CFR, 1940, 205.4, 221.15). 58-670 V. HEARINGS Defendants in land proceedings should not be compelled to combat a case piecemeal because it is brought by the Government, except by stipulation or proper showing satisfactory to the register that the public interest requires a continuance. 52-437 Section 4 of the act of Jan. 31, 1903 (32 Stat. 790) applies only to the taking of testimony of a witness or witnesses who reside "outside the county in which the hearing occurs.” 52-437 When witnesses of both parties are assembled under authority of the act of Jan. 31, 1903 (32 Stat. 790), and then in reality the hearing is held each party must pay the cost of taking the direct examination of his own witnesses and the cross examination on his behalf of other witnesses, just the same as when hearing is held before the local land officers. 52-437 Where witnesses are assembled in a hearing under the act of Jan. 31, 1903 (32 Stat. 790), and one of the witnesses resides outside of the county in which the hearing occurs, his deposition may be taken under section 4 of that act in the county where he resides regardless of the fact that the local land office is situated in that county. 52-437 Whether the entire costs of taking testimony of witnesses supoenaed under the act of Jan. 31, 1903 (32 Stat. 790) should |