oreaking and planting, does not excuse a subsequent party who makes entry of the same land from complying with the timber culture law(*). Where a party enters for timber culture land, which was formerly broken up and cultivated, he is not required to do the prescribed breaking on land not before broken, but he may go over the land formerly broken and again break it and prepare it for the reception of the trees, to the extent of area and in the periods prescribed (b). A strict compliance with the timber culture law in the matter of breaking, cultivating, etc., is required. Where timber culture improvements were on land prior to the entry thereof under the timber culture statutes, such improvements will now be credited to the party making the entry(°). A party may elect to break the soil and plant the trees sooner than the timber culture act requires(). A claimant has the right to select ut of the whole tract entered the particular part to be cultivated in timber() Where a timber culture claimant dies, having failed to comply with the timber culture law, his heirs have no rights in the premises embraced in the entry, and the entry should be canceled upon a proper showing(). c. CONTEST AND CANCELLATION. If, at any time after one year from the date of entry, and prior to the issue of a patent therefor, the claimant shall fail to comply with any of the above requirements, his entry will become liable to a contest in the manner provided in homestead cases, and upon due proof of such failure, the entry will be canceled, and the land become again subject to entry under the homestead laws, or by some other person under the timber culture law. A contesting party must place his application on file in the local land office with his affidavit, initiating a contest against an entry already made, but whether such application entitles such contestant to the privilege of making an entry depends upon the testimony at the trial, showing that the first party has not complied with the law. If the testimony does show non-compliance with the law, then, upon cancellation of the first entry, the contestant will be allowed to perfect an entry for himself(8). No preference right is granted the contestant unless his application accompanies his affidavit initiating the contest. An entry made by the preferred claimant under this act takes date from the time the affidavit is filed and the fees and commissions paid (1). There is a provision of law to allow a party the preference right to enter land embraced in a timber culture entry, who files a relinquishment of such entry(*). See Act of May 14, 1880, P. 49. Where a contest has been regularly initiated against a timber culture entry by a party who filed his affidavit and application to enter, such party will have the preference right of entry, if the first entry is canceled on account of a relinquishment thereof(1). Lands covered by a timber culture entry subsequently canceled may be entered under the preemption laws, though the preference right is always with the homestead or timber culture claimant who successfully contests the former entry(3). The requisites of an affidavit for a continuance on the ground of absence of a witness, are that it shows, I. The name and residence of the witness and the materiality of his testimony; 2. The exercise of proper diligence to procure the attendance of the witness; and 3. That the witness can be had at the time to which it is sought to have the trial deferred(*). The question of sufficiency of notice in contested land claims must be one of fact. Informa () M. G. Lee, Land Owner, Vol. 4, p. 85. tion which makes it the duty of a party to make inquiry, and shows where it may be effectually inade, is notice of all facts to which such inquiry might have led. But a party thus put on inquiry is allowed a reasonable time to make it, before he is affected with notice(*). The contestant in a timber culture entry must defray the expenses incident to the contest. A cross examination for the purpose of creating expense and delay should be arrested. Sufficiency of notice is a matter of fact(). In contests in timber culture entries, the required affidavit must be filed and the published notice must be properly prepared(°). The expenses incident to timber culture and homestead contests must be defrayed by the con Where rehearings are ordered by the General Land Office, an equitable adjustment of the expenses is allowed to be made by the local officers.(d). testants. In case a timber culture entry is abandoned, the land covered by such entry is immediately subject to entry by another party under the timber culture or homestead laws, bu' the, party applying must give the prescribed notice and the adverse party be allowed a hearing, as in other contested cases(*). A party cannot enter under the homestead law a part of the land embraced in his timber culture entry. He may relinquish his timber culture entry, in whole or in part; and upon cancellation thereof, he may, if he is the first legal applicant, enter any part of the land as a homestead(). There is a provision of law for the repayment of the fee and commissions paid on a timber culture entry. Or a new entry may be made with credit for the money paid on a canceled entry.(8) See Act of June 16, 1880. ADDITIONAL RULINGS. Unless land is naturally devoid of timber, it cannot be entered under the timber culture law. Where the timber has been cut off, the land is not subject to such entry. If saplings or young timber trees are found growing on the land, it cannot be entered for timber culture purposes(). Because a tract was covered by a prior timber culture entry, is not evidence that the land is properly subject to the timber culture laws. A party who makes oath that a certain tract is devoid of natural timber, should assure himself of such fact by personal examination, or take the consequences(). Where a scattering growth of timber trees (especially when less than fifty in number), exists on the margin of a stream of water, the tract should be regarded as naturally devoid of timber(). Where two parties apply simultaneously to contest a timber culture entry, neither having im provements on the tract in question, both may be made parties to the contest, and may bid for the privilege of entering the land (*). In view of the act of May 14, 1880, an affidavit accompanying an application to make timber culture entry is unobjectionable because the date of execution thereof is prior to a relinquishment of another entry on the same tract. Regard, however, must be had to the time within which it is received at the local office(1). An excess not to exceed twenty acres may be allowed in timber culture entries, when, as in fractional sections, such entries appear unavoidable. Such excess must be paid for as in home stead entries(m). Instructions relative to timber culture entries must be strictly complied with. Breaking and planting can be done by an agent, but claimant is held responsible for failures so to do("). The year within which the timber culture claimant must break five acres, does not expire until the end of the last day of the year. (See (a) next page.) (a) McCarter vs. Dunn, Land Owner, Vol. 5, p. 21. (b) Ibid. (Henry La French, Land Owner, Vol. 4, p. 85. The pendency of one application to contest a timber culture entry is not necessarily a bar to the initiation of a contest against the same entry by another party(*). The entire area required by law can be planted at once, provided the ground has been preared properly (b). A timber culture claimant complies with the law who replows or harrows the land broken during the previous year. Two years' preparation of the soil is a legal requirement, but putting it to crop is not necessarily required; but cultivation to crop or otherwise is required(*). The planting and cultivation of white willow fulfills the requirements of the timber culture act. List of trees which are regarded as timber trees-cedar, pine, fir, larch, elm, oak, black locust, alder, beech, plane tree (cotton tree, buttonwood, or cycamore), chestnut, spruce, ash, birch, service tree (mountain ash), maple (including box eider), walnut, cottonwood, white willow, hickory, white wood (tulip tree), butternut, and basswood(a). Also the following: alder, birch, beech, basswood, black locust, cedar, chestnut, cottonwood, fir, including spruce, honey locust, larch, box elder, pláne tree (otherwise called cotton trce, buttonwood, or sycamore), service tree (otherwise called mountain ash), white willow, and white wood (otherwise called tulip tree), have been decided as being timber in the mearing of the law(*). No patent can be issued on a timber culture entry until after the expiration of eight years of compliance with the law(f). The relinquishment of a timber culture claim should be made in case of death of claiman、 of all the heirs, these, if any, over twenty-one years of age, acting in person, and minors through guardian duly appointed by the proper probate court, and with full power to act in the premises(). The mere offering to sell one's interest in a timber culture entry, is not deemed sufficie ground upon which to base a contest(*). A party alleging that a timber culture claim has been sold and relinquished, is entitled to enter contest against the same, notwithstanding the year from date of entry may not have elapsed, or the relinquishment is held by a third party(1). The fact that one party has failed at a hearing to show a timber-culture cia.mant's non-comgance with the law, does not bar another party from the privilege of being heard upon simila: egations covering the same period of time(3). The timber culture act does not limit the right of contest to one person or one contest. A contestant should specifically allege the year in which the entryman failed to comply with the law, and wherein such failure consisted(*). No improvement and settlement made by contestee, after initiation of a contest against his entry, shall accrue to his benefit, or act to defeat the vested rights of a contestant and applicant?1\ d. FINAL PROOF. The act of March 3, 1873, entitled "An act to encourage the growth of timber on the western prairies," provided that any person might make an entry under that act on any quartersection of the public lands. Entries under that act were not restricted to heads of families, persons twenty-one years of age, citizens, or those who had declared their intention of becoming citizens of the United States. Persons making entries under said act were required to plant, protect, and keep in a healthy growing condition for ten (10) years, forty acres of timber on the quarter-section entered. The trees were to be not more than twelve (12) feet apart each way. Only one quarter of any section could be entered. Entries were to be made for the cultivation of timber. Final proof (*) Tripp vs. Stewart, Land Owner, Vol. 7, P. 39. (b) Jorgen Raon, Land Owner, Vol. 7, p. 181. could be made at the expiration of ten (10) years from the date of entry, or at any time wi three (3) years thereafter, In making final entry under this act, the party, or, if he be dead, his heirs or legal represen atives, must “prove by two creditable witnesses that he, she, or they have planted, and for not less than ten years have cultivated and protected,” the quantity and character of timber above mentioned. The act of March 13, 1874 (18 Stat5., 21), was an act amendatory of, and, from said March 13, 1874, a substitute for, the act of March 3, 1873. All timber culture entries made between March 13, 1874, and June 14, 1878, were made under the act of 1874. This act provided that citizens of the United States, or persons who had declared their intention of becoming citizens, and who were heads of families or had arrived at the age of twenty-one years, could make such entries. Entries were to be made for the cultivation of timber. Forty acres of timber or a quarter-section, and the like proportion of timber on less than a quarter-section, were required to be planted, protected, and kept in a healthy growing condition for eight (8) years. The trees were to be not more than twelve (12) feet apart each way. Only one quarter-section, or its equivalent, could be entered by any one person under this act. The party making an entry of one quarter-section was required to break ten (10) acres of the land the first year, ten (10) acres the second year, and twenty (20) acres the third year after the date of the entry; and to plant ten (10) acres of timber the second year, ten (10) acres the third year, and twenty (20) acres the fourth year after the date of the entry, and in the same proportion when the entry was for a less area than one quarter-section. Final proof could be made at the expiration of eight (8) years from the date of entry, or at any time within five (5) years thereafter. In making final entry under this act, the party, or, if he be dead, his heirs or legal representatives, must "prove by two credible witnesses that he, she, or they have planted, and for not less than eight (8) years have cultivated and protected," the quantity and character of timber mentioned in this act. In case of the death of a person who had complied with the provisions of the act for three (3) years, the heirs or legal representatives had the option to continue the compliance for the remainder of the eight years, and to receive patent accordingly, or to receive patent for foly (40) acres outright by relinquishing all claim to the remainder. Entries made under the act of March 3, 1873, can be completed, and final proof made under the act of March 13, 1874, upon compliance with the provisions of the latter act. By the act of May 20, 1876 (19 Stats., 54), amendatory of the act of 1874, it was provided that whenever a party holding a claim or making final proof under said act should prove, by two credible witnesses, that the trees planted and growing on said claim were destroyed by grasshoppers during any one or more years, the time allowed in which to plant the trees and make final proof should be extended the same number of years as the trees planted were so destroyed. It was also provided that the planting of seeds, nuts, and cuttings, should be considered a compliance with the timber-culture act, when such seeds, nuts, and cuttings, should be properly and well planted, and the ground properly prepared and cultivated. It is not necessary under this act that the planting shall be done in one body, “provided the several bodies, not exceeding four in number, planted by measurement, aggregate the amount required and in the time required by the original and amended act.” It was provided that in case the seeds, nuts, or cuttings, should not germinate and grow, or should be destroyed by the depredations of grasshoppers, or from other inevitable accident, the ground should be replanted, or the vacancies filled within one year from the first planting. Parties claiming the benefit of this provision were to prove, by two good and credible wit nesses, that the ground was properly prepared and planted, and that the destruction of the seeds, nuts, or cuttings, was caused by inevitable accident. The act of June 14, 1878 (20 Stats., 113), is an act amendatory of, and, as to all entries made since June 14, 1878, is a substitute for, the act of March 13, 1874. ( The persons authorized to make entries under the act of 1878 are heads of families or single persons who have attained the age of twenty-one years, and who are citizens of the United States or have declared their intention to become citizens, and who have made no previous entry under the timber culture laws. Entries are restricted to not more than one quarter section, and one entry only can be made by any one person. Only tracts embraced in sections which are prairie lands, or other lands devoid of timber, are subject to entry under this act. The entry must be made for the cultivation of timber, and for the exclusive use and benefit of the person making the entry. It must be made in good faith, and not for speculation, nor for the benefit of another. Five (5) acres on a quarter-section are required to be broken or plowed the first year, and five (5) acres the second year. The second year the first five acres must be cultivated to crop or otherwise. The third year the second five acres must be cultivated to crop or otherwise, and the first five acres must be planted in timber, seeds, or cuttings. The fourth year the second five acres must be planted in timber, seeds, or cuttings. Ten (10) acres are thus to be plowed, planted, and cultivated on a quarter-section, and the same proportion when less than a quarter-section is entered. The whole ten (10) acres, or the due proportion thereof, must be prepared and planted within four years from the date of the entry, five (5) acres being prepared the first and second years and planted the third year, and five (5) acres being prepared the second and third years and planted the fourth year. If the trees, seeds, or cuttings are destroyed by grasshoppers or by extreme and unusual droughts, the time of planting may be extended one year for every year of such destruction, upon the filing in the local office of an affidavit by the entryman, corroborated by two witnesses, setting forth the destruction and asking the extension of time provided for by the act. Final proof can be made at the expiration of eight (8) years from the date of entry, or at any time within five years thereafter. The requirements in making final proof under this act are as follows: Ist. It must be shown that not less than twenty-seven hundred (2,700) trees of the proper character were planted on each acre of the ten acres required to be planted. 2d. It must be shown that the quantity and character of trees as aforesaid have been cultitivated and protected for not less than eight years preceding the time of making proof. 3d. It must be shown that at the time of making proof there are growing at least six hundred and seventy-five (675) living and thrifty trees to each acre of the ten acres planted. All entries made since June 14, 1878, are made under this act. Parties who made entries under either of the former acts are permitted to complete the same and to make final proof under the act of 1878, upon full compliance therewith. Section 7 of the act defines the meaning of the term "full compliance" as used in that. section. It is, that the parties shall show that they have had under cultivation, as required by the act, an amount of timber sufficient to make the number of acres required therein; that at the time of making final entry the required number of living and thrifty trees are growing or the land. It is not requisite, in making proof under the act of 1878, that the manner of planting as prescribed by that act should be shown to have been followed by persons who made entries under the acts of 1873 and 1874. The planting in such cases may have been done in the manner prescribed by the acts of 1873 or 1874, or in the manner prescribed by the act of 1878. The character of the trees should be such as are recognized in the neighborhood as of value for timber, or for commercial purposes, or for firewood and domestic use. The enumeration of species on page 27 of the General Circular of October 1, 1880, is only intended as a general guide, and is not to be construed to exclude any trees falling within the foregoing characteriza tion. In computing the period of cultivation, the time runs from the date of entry, if the necessary |