pleader, who had paid on his behalf the sum of two dollars as part of the purchase money, with the understanding that such receipt was to be turned over to the plaintiff on his reimbursing the interpleader for said sum. On this point, however, it may be stated that the interpleader denies that the receipt was held by him for the purpose alleged. On the contrary, his version of the matter is, that the receipt was purchased by himself from the defendant, with the view of saving that portion of his improvements, which he states he believes a resurvey will show lies upon the tract in dispute. The substance of the rule is that a home Lunney having failed to make final proof within the period required by law, and an adverse right having intervened, and been properly asserted, lost his right to complete the entry. (Johnson vs. Towsley, 13 Wallace, p. 90.) I refer you to the case of Molyneux vs. F. JOSEPH SHLOSSER. Irregular Application.-An application irregu lar in form is equivalent to no application, and does not prevent another party from properly applying for and entering the land. Prior Settler.The party thus deprived of the land may, if the prior settler, initiate a contest against the entryman. COMMISSIONER MCFARLAND to Reg. and Rec., Huntsville, Ala., Sept. 24, 1883. (C. T. Y.) Shlosser claims the preference right of entry, by virtue of a contest initiated by him against homestead entry No. 10839, evidence shows that the contestant went for the same tract, which terminated in the before the Clerk of the Court April 29, ter said tract, which was forwarded to the 1882, and executed his application to enlocal office, and rejected for informality cancellation thereof, March 10, 1882. The Rule 14 of office circular, issued Octo- 3988, May 4, 1879, alleging settlement on ber 9, 1880, under the act of June 15, 1880, the tract in question April 6, 1879, and provides that "where the duplicate receipt gave notice January 30, 1882, that he has been lost or destroyed, and the appli- would make final proof April 8, 1882. cation to purchase is made by the original Darnell made entry January 13, 1882. homestead party, the applicant must make oath that he has not transferred, nor attempted to transfer, his homestead right under said entry, nor assigned his right to receive the repayment of the fees, commissions, and excess payments paid thereon." It is clear that this rule was intended to prevent the purchase by the homestead claimant after he had transferred his interest in his entry, or attempted The interpleader, it seems, owns and oc- to transfer the same. Such transfer being cupies under his homestead entry No. usually made upon the duplicate receipt, 8957, (F. C. No., 2608) made May 4, 1874, the absence of the receipt would raise a the N. W. S. E. 4, E. & S. W. 4, and N. strong presumption that a transfer had W. S. W., 1,2 N., 23 W., which adjoins been made. Hence to rebut this presumpthe tract in controversy. He admits how-tion an oath as to non-alienation was ever that he offered to sell the receipt to deemed necessary, and accordingly the the plaintiff, but such offer having been above-mentioned rule was promulgated. declined, he concluded to get the land himself. But he denies, as submitted in stead party cannot be permitted to purevidence, though not conclusively proved chase the land after he has sold his rights by the plaintiff, that one of plaintiff's to another. A transfer of the duplicate witnesses offered to pay him the alleged receipt is not, however, the only evidence balance due on the receipt. The inter-of such sale. The sale may be otherwise pleader also acknowledges, as further established, and when established is sufthe defendant to go to the Land Office and party of land to which he no longer has charged by the plaintiff, that he procured ficient to bar a purchase by the homestead make application to purchase the land un- any, equitable claim, even if he does still der the act of June 15, 1880, and that he hold possession of the duplicate receipt. furnished the defendant one hundred In the present case, the duplicate receipt dollars two or three days before he said does not show a transfer by the defendant. defendant-presented himself at your of But the fact that he had disposed of his fice for such purpose. He further admits entire interest in the land both by deed that he expected to get a deed to the land and otherwise is proven. To allow the from the defendant after the purchase had purchase by a homestead party under such been consummated, and also paid him circumstances, would be a violation of the eight dollars in addition as an inducement. spirit and purpose of the rule referred to, It appears in evidence that such deed was and would place this office in the position actually executed by the defendant about of aiding the consummation of a scheme tract, which was allowed. the time the application to purchase was to deprive the occupant of his improve-testant's entry. The act of May 14, 1880, now is as to the admissibility of the conmade. No testimony was offered by the ments placed upon the land under defendant, and he appears to have been color of right, obtained through actual gives a contestant the preference right for singularly silent. transfer of possession from the homestead" thirty days from date of such notice to party. It is reasonably clear in this case enter said lands." An informal or incomthat the application to purchase is not plete application does not operate as a bona fide on the part of the defendant, but segregation of any of the public lands; the On inspection it appears never to have is in reality made in the interest of the in- statute is specific as to the time allowed a been relinquished or transferred by the terpleader, who has no standing in the contestant to make entry, which must be defendant. The purchase or possession of case. accomplished in the usual manner; i. e., it by the plaintiff or the interpleader would The application to purchase is therefore upon the proper application. In the case therefore have availed nothing to either. rejected, and the aforesaid entry No. 13,828 is equivalent to no application, and the at bar, the first application being irregular It is only touched upon so largely in my is held for cancellation. consideration of the case, because of the thirty days' limitation having expired beexceptional character of the point involved, fore a proper application had been prewhich renders it necessary to take in colsented at the local office, the contestant lateral issues in order to show as clearly thereby forfeited his preference right acas possible the respective equities of the quired under the statute, and the land becontending parties. came subject to entry by the first legal applicant thereafter, which seems to have been Mr. Welden; therefore, in my opinion, the latter's entry cannot be set aside in favor of the contestant, on the ground of his preference right; but he may, under the 3d section of the act of May 14, 1880, attack the existing entry on the ground of prior settlement, if such are the facts. The receipt about which there is so much contention accompanies the defendant's application to purchase. From the foregoing, the real question at issue would seem to be, is the defendant entitled to purchase the land under the act of June 15, 1880, when it is admitted and proved that such purchase is intended solely for the benefit of the interpleader, and will, if allowed, result in the defeat of the superior equities of the plaintiff? I do not think the defendant is under the cir cumstances so entitled. PRE-EMPTIONS. LUNNEY VS. DARNELL. Final Proof.-Adverse Claim.-A pre-emptor tervenes. ACTING SECRETARY JOSLYN to Commissioner I have considered the appeal of William It appears that Lunney filed D. S. No. a with the affidavit. A proper affidavit was made before the clerk of the court June 2, 1882, and forwarded to the local office. During the interim, an application office by Absalom Welden to enter said in proper form was presented at the local The question [See decision in Banks vs. Smith, this number.-ED.] TIMBER AND TIMBER CULTURE. Glaze, that at the same time that papers in Defective Notice.--Affidavit of Contest not Cor- It appears from our records and files that one Rebecca Jane Glaze made H. E., No. 9141 of said tracts on the 28th of August, 1879; that Ella R. Bogardus on the 28th of October, 1881, filed affidavit of contest against said entry, and trial was set for December 7th following. SAMUEL DEWELL. the new contest of said Ella R. Bogardus COMMISSIONER MCFARLAND to Samuel Devell, GOLDEN VS. SPEEGLE ET AL. Act of June 3, 1878.-Pre-emption.—Timber and stone act of June 3, 1878, construed.-In view of the pre-emption claim, the timber application is rejected. COMMISSIONER MCFARLAND to Register and Receiver, San Francisco, California, April 17, 1883. (J. G. J.) The Register then took the papers under advisement, and the next day returned them to Roe, rejected "for the reason that a contest was initiated by Ella R. Bogardus, against entry of Rebecca Jane I have examined the contested case of Glaze, before relinquishment of said Glaze King Hiram Golden vs. James Simpson was presented to us with this application, and Lysander Speegle, forwarded with said contestant having acquired inceptive your letter of February 9, 1883. right." Mr. Roe further alleged that Ella R. Bogardus was a married woman, and if she claimed the right to enter by reason of having been deserted by her husband, he believed that he could produce evidence to prove that she had not been so deserted. He also alleged that the affidavit of contest had not been corroborated as required by the Rules of Practice-which fact so appears from the papers. He accordingly asked for a hearing in order to present him an opportunity to prove his allegations. You refused his application in that The charge in this case was abandonment. direction, and he appealed to this office, On said December 7, 1881, the plaintiff renewing his application for a hearing to was present, and the defendant appeared by attorney, who filed motion to quash service of notice. determine the respective rights of Joseph By letter addressed you March 29, 1882, The records show that Golden made Timber Application No. 273, March 10, 1882, under act of June 3, 1878, for lots. 13 and 14, Sec. 19, lot 12, Sec. 30, and N. E. of N. W., Sec. 32, 17 N., 12 W. Simpson filed D. S. 15,597, November 9, 1880, alleging settlement August 26, 1880, claiming lots 12 and 13 of Sec. 30. Speegle filed D. S. 16,431, May 8, alleging settlement May 4, 1882, claiming lots 12, 13 and 14, Sec. 19, and lot 4, Sec. 30. Township plat filed July 14, 1879. Simpson, although duly notified, made default at the hearing, and the testimony shows that he does not reside on the land. Your decision, as between Golden and Speegle, is based solely upon the proposition that as Speegle settled subsequent to the timber application of Golden, the only question involved is as to the character of the land, whether it is chiefly valuable for timber or stone, and unfit for cultivation, and therefore ignoring the consideration of the rights of Speegle by virtue of his settlement and improvements on the land as a pre-emptor. But in this view of the case I think you have misconstrued the tenor of the act of June 3, 1878. This motion was sustained, and the contest was then and there dismissed, and no appeal appears to have been taken from your action. Immediately after this dismissal, on the same day-Dec 7, 1881-the contestant, said Bogardus, filed a new affidavit of contest which was not corroborated as required by Rule 4 of Practice, and thereupon you issued notice setting trial for January 18, 1882. Some time before this, namely, on December 23, 1881, the relinquishment of said Rebecca Jane Glaze of her aforesaid H. E. No. 9141 was filed, and the entry was canceled thereon on your records. On the day set for trial, January 18, 1882, the case was called, and there being no appearance on the part of defendant, the plaintiff filed a notice asking that the aforesaid relinquishment be considered as an admission of the allega- It is clear from the evidence in this tion--abandonment-made by plaintiff, and case that the affidavit of contest filed by prayed that she, the plaintiff, be relieved said Ella R. Bogardus Dec. 7, 1881, was from furnishing any further evidence in not corroborated as required by Rule 4 of support of her charge, and in support Practice Rules, and that she at the time thereof cited Johnson vs. Halvorsen, of the initiation of her several contests for publication; and after the expiration Copp's L. O., vol. 8, p. 56. This action was a married woman. I fail to perceive of the period of time for publication, this you granted, and plaintiff, said Ella R. any error in your findings, and your de- section further prescribes that, "if no adBogardus, there on said January 18, 1882, cision is therefore affirmed, and the afore-verse claim shall have been filed, the permade T. C. E. No. 3785, of the tracts in said T. C. Entry of said Ella R. Bogardus, dispute. No. 3785, is held for cancellation on the ground that it was illegal and void at inception. From your joint report and opinion rendered September 19, 1882, the case was heard July 24, 1882, all the parties being The first section of said act provides present or represented; and your finding that nothing therein contained shall "dewas, in substance, that said Ella R. Bogar- feat or impair any bona fide claim under dus, at the time of initiating "her several any law of the United States, or authorize contests did not have the legal standing the sale of any mining claim, or the imto entitle her to the benefits of the prefer-provements of any bona fide settler.” ence right rule," and from such decision said Ella R. Bogardus, through her attorney, appeals to this office. It further appears from an affidavit filed by John H. Roe, attorney for Joseph The second section designates the preliminary steps to be taken by the applicant in the prosecution of his claim; and after the requirements of this section have been complied with, the third section prescribes the duties of the Register as to posting notice of application to purchase, and furnishing copy of same to applicant son desiring to purchase shall furnish to the Register of the Land Office satisfactory evidence; first, that said notice of the application prepared by the Regis ter as aforesaid, was duly published in a newspaper as herein required; secondly, that the land is of the character contemplated in this act, unoccupied and without improvements, other than those excepted, either mining or agricultural." The improvements referred to as excepted are "for ditch or canal purposes,' and I think the evident intent of the act was to allow adverse claims to be placed upon record during the pendency of the notice of publication, and that the resulting improvements of such claims are to be considered in the same light as improvements made prior to the date of application to purchase. The hearing in the case was had in July, 1882, and as Speegle only settled on the land in contest in May preceding, his good faith and improvements must be judged accordingly. He shows, however, a bona fide act of settlement, and that he has resided on the land more than half the time since, having in the meantime nearly completed his house, and cleared some of the ground and made some brush fence. The absence of rain during his residence on the land has prevented its cultivation. The testimony as to the character of the land is very conflicting. A portion of the witnesses testify that it is more valuable for timber than for anything else, and the other portion are just as positive that it is chiefly valuable for grazing purposes. Under the circumstances I reverse your decision and reject the application of Golden, and award the land to Speegle subject to his full compliance with the law in all respects, when he applies to make proof and payment. The D. S. of Simpson is this day canceled. RAILROADS. ROBERTSON VS. SOUTHERN PACIFIC R. R. Official Reports. Where an issue of fact is Res Judicata.-The Commissioner of the Gen It is not shown nor claimed that B. J. Robertson ever made any improvements on the land, or that he had such a claim as his legal representatives could have perfected. Had such been the case, they 1771 for the said land, and that her right The township plat of survey was filed in the district office December 18, 1874. The records of this office show that B. J. Robertson filed D. S. No. 724, January 13, 1875, for Lots 2, 3 and 4, Sec. 1, and Lot 4, Sec. 2, and N. E. 4, N. E. 1, Sec. 11, 3 N., 20 W., alleging settlement March 15, 1872. This land with the exception of N. E. 4, N. E. 4 of 11 was also within the claimed limits of the Sespe rancho, and was not excluded therefrom until March 14, 1872. It appears that B. J. Robertson, who made the above filing, died in 1877. His widow, Eliza E. Robertson, filed D. S. No. 1771, for Lots 2, 3 and 4 of Sec. 1, and Lot 4 of Sec. 2, 3 N., 20 E., S. B. M., alleging settlement May 20, 1879. Mrs. Robertson states, in her affidavit, that she was not notified of the claim of the railroad company for the said land. But the Register, who is a sworn officer, reported by letter of April 5, 1881, that notice of my predecessor's decision of January 15, 1881, was duly served upon Mrs. Robertson, January 31, 1881. The decision in this case being final, and the land having been selected by the railroad company thereunder, were the facts sufficient (which they are not), I could not, in view of the Department ruling in the case of Eben Owen et al. (Copp, v. 9, p. 111), reopen the case and review it. One Commissioner of the General Land Office has no authority to review a decision of his predecessor which has become final. The application is accordingly rejected. CENTRAL PACIFIC RAILROAD CO. VS. ORR. January 15, 1881, at the request of the attorney of the Southern Pacific R. R. Company, the filing of Mrs. Robertson was taken up and examined by this office; and under the department decision of January 4, 1881, in the case of Johanna Richardson et. al. vs. said Company, it was held that the land in question being within the thirty-mile limits of the grant, it might be selected after the removal of the rancho claim, to satisfy deficiencies in the granted limits; that after the removal of said claim, the withdrawal of May 10, 1871, became effective, and the land was held in reservation to supply losses in the granted I have considered the case of the Cenlimits, and was not subject to pre-emption tral Pacific Railroad Company vs. Michael settlement; that Mrs. Robertson having Orr, involving the W. of the S. E. and settled May 20, 1879, as alleged in her S. of S. W. of Sec. 5, Twp. 12 N., R. 8 filing, No. 1,771, the same was held for E., M. D. M., Sacramento District, Calicancellation, to the extent of the tracts in fornia, on appeal by the Company from the odd-numbered section. your decision of April 28, 1882. Pre-emption Claim.-Public Sale.-As the preemption right upon which Orr bases his right was extinguished on the day of public sale described, the land became public land, and passed to Company under its grant. SECRETARY TELLER to Commissioner McFarland, Sept. 21, 1883. (S. W. R.) By letter from the Register at Los The tract is within the limits of the Angeles, dated April 5, 1881, this office grant by act of July 1, 1862 (12 Stat. 489), was advised that Mrs. Robertson was to the Company, the right whereof attached served with notice of above decision, Jan-June 1, 1863, and the withdrawal for which uary 31, 1881, and that no appeal there- was made Sept. 13, 1862. from had been filed in that office. eral Land Office has no authority to review a final decision of his predecessor. COMMISSIONER MCFARLAND to Reg. and Rec., Los Angeles, Cal., August 25, 1883. (W. J.D.) I have considered the application made May 3, 1883, by Wm. J. Johnston, as attor- The said decision having become final ney for Mrs. Eliza E. Robertson, for a for want of appeal, Mrs. Robertson's filing reconsideration of my predecessor's decis- was canceled, to the extent of the tracts ion of January 15, 1881, rejecting her in the odd numbered section, by letter claim for Lots 2, 3 and 4 of Sec. 1,3 N., 20" F," of June 14, 1881, and the case closed. W., S. B. M., Cal., and cancelling her preemption filing for the same. The records of this office also show that Mr. Johnston has filed the affidavit of Mrs. Robertson, who swears that she now occupies the said lots, together with lot 4 Mr. Johnston's application is based upon of Sec. 2, said township and range, and the assumption that Mrs. Robertson has has continuously occupied the same since been claiming this land since 1872, whereas the year 1872; that after the death of her the fact is, she was not qualified to make husband (Benjamin J. Robertson), in 1877, a pre-emption settlement until 1877, after she filed her declaratory statement No. her husband, B. J. Robertson, died. It appears that one W. B. Wilson filed declaratory statement No. 421 for the tract, June 15, 1856, alleging settlement July 1, 1852. Under date of January 25, 1877, Orr applied at the local office to make homestead entry of the tract, basing his right upon Wilson's filing, etc. At Orr's instance, citation duly issued the same day to the company to appear at the local office, March 6th ensuing. Hearing was accordingly had, whereat both parties appeared. Under date of June 29, 1878 (the record fails to discover the cause of such delay in the rendition of their decision), the Register and Receiver finally found from the From BRAMWELL VS. CENTRAL AND UNION PA evidence in favor of the company. This Orr accordingly did so far as lay in his power, the company's attorney, T. B. McFarland (who was the Register at the time the Register and Receiver decided in the company's favor, as aforesaid,) objecting to the admissibility of such testimony at that stage of the proceeding, after the case had been submitted and forwarded on appeal to your office. But notwithstanding such demurrer, you rendered your decision in question, holding that while the testimony "is not so clear as could be desired," it establishes the fact that Wilson had a valid, subsisting claim to the tract at the date of the definite location of the road, June 1, 1863, which, under the terms of the statute (12 Stat. 492), excepted the tract from the operation of the grant. Without discussing the minutiae of the several points of exception specifically raised upon appeal by the company's counsel, touching Wilson's personal qualifications and Orr's, it will suffice to state that your own records discover the fact that the premises were proclaimed for sale under date of June 30, 1858, but that they were not offered by reason of their alleged mineral character. Such being the case, Wilson should have made proof and payment forthwith, pursuant to the express provisions of the original pre-emption act, to wit, the act of September 4, 1841 (5 Stat. 457), the 14th section whereof provides "that this act shall not delay the sale of any of the public lands of the United States beyond the time which has been, or may be, appointed by the proclamation of the President, nor shall the provisions of this act be available to any person or persons who shall fail to make proof and payment, and file the affidavit required before the day appointed for the commencement of the sales as aforesaid." The record fails to discover that Wilson complied with such requirement. Hence it must be assumed that he failed to do so, and that the provisions of the act cited were not available to him. Thus it appears that the particular claim upon which Orr bases his claim having fallen, Orr's must fall likewise. I am therefore of the opinion that at the date of the definite location, June 8, 1863, there was, so far as the record discloses, no valid, subsisting claim to the tract in question, whereby the same was excepted from the operation of the grant. Your decision is accordingly reversed. CIFIC RAILROAD COMPANIES. land is awarded to the railroads. I have considered the case of George The township plat was filed in the local office March 15, 1869. May 19, 1869, one Elisha Thomas filed declaratory statement No. 574, for the N. W. of said section 26, but relinquished the same March 29, 1871. It appears that under date of March 29, 1871, Bramwell made homestead entry No. 1072 of the tract, and made final proof December 22, 1877, whereupon final certificate No. 923 issued to him therefor. The companies claim the tract jointly by virtue of the act of May 6, 1870 (16 Stat., 121), whereby said section was "granted to them in equal shares, with the same rights, privileges, and obligations now by law provided with reference to other lands granted to said railroads," subject, however, to the proviso: "that no rights of private persons shall be affected by this act." You held that as Bramwell's rights were initiated subsequently to the date of the approval of the act cited, his case is not protected by said provision. It appears that Craig alleges settlement on March 11, 1881, and Morgan on March 18, 1881, and that on April 9, 1881, the latter filed an affidavit charging mala fides in Craig's claim, and that it was not made for his own benefit, but for speculation. On a careful review of the testimony taken at the hearing, I am convinced that the charge is well founded, and that Craig's settlement was not bona fide, but was made with the intention of proving up for the benefit of another person, to whom he had agreed to convey the land after entry. The ground of your decision is that "the mere fact that such an agreement may have existed is insufficient to debar him the right of entry, when he swears that no such contract now exists," and you cite as authority the case of Larson vs. Weisbecker (9 Copp's L. O., 60). Said case is one where a pre-emptor, who had made settlement in good faith, "mortgaged his land for no speculative purpose," but for the purpose of procuring means wherewith to make entry for his own benefit, and, in my judgment, is not applicable to the case at bar, where the evidence shows that the settlement itself was not in good faith. Section 2 of the act of May 28, 1880, (21 Stat., 143,) under which Craig's claim was made, provides that said land "shall be subject to disposal to actual settlers only," and a comparison of said act with that of May 9, 1872, (17 Stat., 90,) and with other acts relating to the disposal of Indian lands in Kansas, shows that it was the policy of Congress to subject private entries upon these diminished reserve lands to the general principles of the pre-emption laws. It was this view that your office took in your circular instructions of June 28, 1881, to the Wichita Land Office, I concur with you in this opinion; as it approved by this Department, which prewill be observed that the record fails to scribed certain prerequisites to entry, discover any privity of estate between under "the general principles of the preThomas and Bramwell, whereby the lat-emption laws, * as evidence that ter's rights could be made to antedate the the settlement is made in good faith." grant, or to take effect by relation as of the Bona fides in settling is an original and date of Thomas' initiation of claim to the fundamental principle of the pre-emption premises. Moreover, it should be ob-laws, and an "actual settler" is one who served that Thomas' right was merely inchoate, he having relinquished without perfecting the same, or doing anything to that end. Your decision is accordingly affirmed. INDIAN LANDS. MORGAN VS. CRAIG. * * goes upon the land animo manendi, or, as the court remark in Lytle vs. State of Arkansas, (22 How., 193,) for the purpose of "seeking a home." In the case just cited, the court instanced the fact that the claimant went upon the land with a view to selling it after entry as evidence of bad faith, and held his entry void. In Harkness vs. Underhill (1 Black, 316), where Osage Indian Trust and Diminished Reserve entry was made under the proviso to the Lands.-Consideration of a case involving act of April 5, 1882, (4 Stat. 503,) grantquestion of good faith and speculative entry. ing pre-emption privileges to "actual setACTING SECRETARY JOSLYN to Commissioner tlers," and where there was an agreement Mc Farland, Aug. 27, 1883. (D. A. McK.) to sell the land, the court say, "It was an I have considered the case of Agnes attempt to speculate on his part, and also Morgan vs. James H. Craig, involving a on the part of Stillman, his co-partner, by tract within the Osage Indian trust and fraud and falsehood; they both knew diminished-reserve lands, namely, the S. E. equally well that Walters was no actual of Sec. 29, Twp. 29 S., Range 1 W., settler on the public lands;" and they acWichita, Kansas, on appeal by Morgan cordingly held that such a speculative setfrom your decision of July 2, 1882, allow-tlement was not even a foundation for an ing Craig to make entry, and holding her equitable right to the land. Under these filing for cancellation. rulings, since Craig's settlement was not SEACORD VS. TALBERT. Settlement.—The settlement claimed by Seacord is not a legal settlement. land, September 24, 1883. (D. A. McK.) I have considered the case of James M. Seacord us. Thomas Talbert, involving the N. E. of the N. W. 4, the N. W. of the N. E., and Lots 1 and 4 of the N. E. 4, of Section 22, Township 16 S., Range 9 E., Kansas Trust and Diminished-reserve lands, Topeka District, on appeal by Talbert from your decision of September 11, 1882, awarding the land to Seacord. that he went there in good faith, believing in the investigation of the question of the that there was no bona fide prior settle- alleged error in the location of the western boundary of the Devil's Lake Indian Reservation in Dakota. ment on it. On April 28, 1879, Seacord returned to the land, repaired and set up the house within a few rods of Talbert's house, on the same subdivision, and soon moved into it. He has made some improvements, and In Article IV. of the treaty of February 10, 1867, with the Sioux Indians (15 Stat., 595), the boundaries are described as follows: The recent survey made by the General Land Office also purports to have discovered a point further west on the Cheyenne River, which is about two and one-half miles nearer to the most westerly point on Devil's Lake, than the point to which said western boundary line was made in 1875. Whether or not the Cheyenne River has been brought nearer to the most westerly point of the Devil's Lake at another point by changes in its bed, which often occurs in these western rivers, is not shown in the report. SECRETARY TELLER to Commissioner McFar-has had his residence there since. He "Beginning at the most easterly point filed his affidavit of contest on November of Devil's Lake; thence along the waters 4, 1879. of said lake to the most westerly point of These parties claim under the act of the same; thence on a direct line to the July 5, 1876, (19 Stat., 74), section 2 of nearest point on the Cheyenne River; which provides that these lands "shall be thence down said river to a point opposite subject to entry.... only by actual set- the lower end of Aspen island, and thence tlers," and their applications to enter have on a direct line to the place of beginning." been filed since the initiation of the con- The boundaries of the reservation were test. In considering their respective rights, surveyed in 1875, and their correctness it is clear, in the first place, that Adams and accuracy have not been questioned It appears that one Adams had made did not make a bona fide settlement on this until recently, the agent claims to have claim to the land in controversy, and had tract, such as would have avoided either discovered that the western reservation done some breaking and partially dug a party's subsequent settlement. He made boundary does not strike the Cheyenne cellar on it in 1878; but he had discon a pretense of settling there, for the pur- River at the nearest point on a direct line tinued the improvements, never lived on pose of holding it if he ever concluded to from the most westerly point on Devil's the land, and informed Seacord that he settle actually, but had long before aban- Lake. would give up his claim if Seacord would doned his improvements, and was endeavbuy the improvements. Seacord at this oring to negotiate their sale. Neverthe time was living in another county, where less when Seacord made what he is pleased he made a contract to remove a preacher's to call his settlement, namely, by driving family to the northern part of the State, four stakes into the ground, he believed . and, whilst engaged in fulfilling the con- that the right to the land was in Adams, tract, he passed in the vicinity of the land and he did not drive those stakes as on March 18, 1879, and on that day went an act of ownership, or as an assertion of upon it in company with Adams, and a claim, but by Adams' license, and for drove four stakes at the place where he the purpose of denoting the spot where he proposed to put a house. He then went intended to place a house if he effected away from the land, and made arrange- the proposed purchase of the improvements with Adams to purchase the said ments. Consequently his temporary presimprovements, and also a house which ence there on March 18, 1879, and the act The boundary lines of the reservation Adams owned, and which was on another of driving the stakes, did not amount to a tract of land. It does not appear that legal settlement, and such a settlement he these improvements and this house were could only effect by again going on the then and there purchased. Next day Sea-land animo manendi. cord, with his own family, went north in He claims that the subsequent purchase continuation of his business of removing of the improvements, and the removal of the preacher's family, and was absent until the house to the land, were in continuation April 28, 1879. of his settlement. But this position is It also appears that while Adams was untenable. His purchase, even if it were still claiming this land, namely, about No-made afterwards on the same day, which is vember 1, 1878, he contracted with one not shown, could have given him but the Hollenbeck to place the aforesaid house on same right to the land which his vendor it, and that, in pursuance of the contract had, and that has been shown to have been then made, and without further instruc-unsubstantial and invalid. And since the tions from Adams, he placed the house on house was not placed on the land by him the land on March 22, 1879. or for him, he could not acquire a settlement by virtue of it. It appears further that on March 28, 1879, Thomas Talbert, who was traveling with his family in search of vacant land on which to settle, heard of this tract, went there and saw it, and on the next day settled on it with his family. He had notice of the old breaking, of the partially dug cellar, of a house in two parts, empty and not set on a foundation, and of the fact that no one had ever lived on the land; and he also heard that Adams laid claim to the tract, and was going to sell his improvements. It is not clear whether it was then, or two days afterwards, that he was informed of Seacord's claim. He built a house, and has made various improvements since, and has continuously resided on the land; and there is no doubt When Talbert came upon the land six days afterward, he had no notice of anything which could affect his rights; he found it unoccupied, unsettled, and without an adverse claim to it; and his actual settlement there next day gave him a valid and good right to the land, which he should now be allowed to perfect. Your decision is accordingly reversed. DEVIL'S LAKE INDIAN RESERVATION. SECRETARY TELLER to the Commissioner of dian Affairs, September 18, 1883. have already been surveyed and established; and since that was done, a large number of settlers have in good faith gone upon the lands lying west of the reservation line established in 1875, believing them to be a part of the public domain, and have acquired rights thereon. In view of these facts, no change will be made in the western reservation line, as already established. The Commissioner of the General Land Office has been so instructed. CALIFORNIA is calculating on a vintage of 12,000,000 gallons. A FLORIDIAN estimates the cost of setand the annual income as $1,000 per acre. ting out a five-acre orange grove at $797, MINNESOTA, according to a pamphlet just issued by the State Board of Immigration, has still a vast tract of unexplored terriA number of tory within her borders. counties are as yet a veritable terra incognita, neither surveyed nor explored. THE grazing lands of Colorado, Nebraska, Wyoming, Montana, Eastern Oregon, and Idaho are estimated at 1,000,In-000,000 acres. The Oregon Short Line is now opening a region capable of supporting 5,000,000 cattle and 10,000,000 sheep, which, when it shall be fully occupied, can export yearly 600,000 cattle, 1,500,000 sheep, and 10,000,000 pounds of wool. I herewith transmit a copy of a letter of the Commissioner of the General Land Office, of the 11th instant, submitting with report on the subject, plat of survey made |