Gray

Ejectment. Judgment for defendant. Plaintiff’s motion for a new trial overruled. Appeal from the judgment and order overruling motion for a new trial. Prior to the fourth day of May, 1877, the demanded premises were a part of the public lands of the United States. At that date one Ward applied for and made entry, under the act to provide for the sale of desert-lands, of the section which embraces said premises. On the nineteenth day of December, 1881, defendant initated a contest against said entry for abandonment and failure to comply with the law, and at the same time filed his application for said land under the soldiers’ and sailors’ homestead act. The contest resulted in the cancellation of Ward’s entry; and he relinquished his claim to enter under the desert-land act, but applied to enter said land under the timber act. His application was rejected by the local land-office. He *34 applied to the general land-office, and the commissioner thereof decided that his application should have been allowed, subject to the'preference right of the defendant herein to enter said land under the soldiers’ and sailors’ homestead act. From that decision Ward appealed to the Secretary of the…