any person has contested, paid the land office fees and procured the cancellation of any pre-emption, homestead, or timber culture entry", and it was held in Fraser v. Ringgold (3 L. D., 69) that "pre-emption" in said act includes the desert land law. It is also said in said decision (p. 71)

The word pre-emption is one of broad signification, and was in use under State laws and in other statutes before its incorporation into the United States land system. It is held, in general, that claims under the townsite laws are pre-emptions; so of the settlement statutes respecting certain Indian lands; and, broadly, that where a special preference is given to a claimant, dependent or contingent upon the performance of conditions which any one of a qualified class may reasonably fulfill, by which he may hold to the exclusion of others, such preference is a pre-emption, and inures to the individual upon the inception of his claim. Measured by these rules, a desert-land entry is much more clearly within the definition than many others which are so recognized.

See also Jefferson v. Winter (5 L. D., 694); Sears v. Almy (6 L D., 1); Mary Stanton (7 L. D., 227).

It has also been held by the Department that persons contesting the entries of Indian lands and procuring the cancellation thereof are entitled to the preference right of entry under the provisions of said section of May 14, 1880.

Bunger v. Dawes (9 L. D., 329); citing Rule of Practice No. 1 (4 L. D., 37); Buchanan v. Minton (2 L. D., 186); also Jacobs v. Bolinger decided July 12, 1890, unreported.

The preference right of entry has also been awarded to the successful contestant of a swamp land selection. Ringsdorf v. The State of Iowa (4 L. D., 497).

The status of entries of Osage Indian lands has been frequently before the Department, and in the case of United States v. Johnson (5 L. D., 442), the purchasers were called pre-emptors, and it was stated that "until all of the prelimi nary acts required by law have been performed by the preemptor, he has acquired no right as against the government," citing Frisbie v. Whitney (9 Wall., 189); The Yosemite Valley case (15 Wall., 77).

In the case of United States et al. v. Atterbery et al. (8 L. D., 173) it was also held that "an actual settler" as contemplated by the act of May 28, 1880 (21 Stat., 143) is one who goes upon the public land with the intention of making it his home under the settlement laws, and does some act in execution of such intention sufficient to give notice thereof to the public."

See also Hessong v. Burgan (9 L. D., 353); United States v. Atterbery et al. (on review) (10 L. D., 36); United States r. Sweeney (11 L. D., 216); Dusenberry v. Wall (12 L. D., 12).

The seventh section of said act of 1891 provides (inter alia) that all entries made under the pre-emption, homestead, desert land, or timber culture laws, in which final proof and payment have been male and certificates issued, and to which there are no adverse claims originating prior to final entry and which have

been sold or encumbered prior to the first day of March, 1888; and after final entry, to bona fide purchasers for a valuable consideration, shall, unless upon an investigation by a government agent, fraud on the part of the purchaser has been found, be confirmed, etc.

Aside from the foregoing, which clearly shows that the word preemption as used in said section includes entries made of Indian lands under said acts, the Department has settled the question so far as relates to the entries of Osage Indian lands.

In the case of Johnson . Burrow (12 L. D., 440) involving two cash entries of Osage Indian lands, the Department said:

It is seen that, while either Burrow or Johnson's entry, in the absence of the other might be confirmed under the provisions of the 7th section of the act of March 3, 1891, yet, in each case there is a pending protest against the validity of the other entry.

I am unable to perceive any good reason why the entries of the Otoe and Missouria lands should be placed in any different category than the Osage entries. See also United States v. Harp et al. (13 L. D., 58.)

It was said by the supreme court in the case of Heydenfeldt v. Daney Gold, etc. Co. (93 U. S., p. 634–638)

we are not to look at any single phrase in it, but to its whole scope, in order to arrive at the intention of the makers of it. "It is better always," says Judge Sharswood, to adhere to a plain common-sense interpretation of the words of a statute, than to apply to them refined and technical rules of grammatical construction." Gyger's Estate, 65 Penn. St. 312. If a literal interpretation of any part of it would operate unjustly, or lead to absurd results, or be contrary to the evident meaning of the act taken as a whole, it should be rejected. There is no better way of discovering its true meaning, when expressions in it are rendered ambiguous by their connection with other clauses, than by considering the necessity for it, and the causes which induced its enactment.

Said act of 1891 must be held to be remedial and construed liberally so as to carry out the purpose of the enactment, and advance the remedy contemplated by the legislature. (Endlich on the Interpretation of Stat utes, Sec. 108).

There certainly can be no good reason for holding that entries of Indian lands, which have been transferred to bona file purchasers after the issuance of final certificates prior to March 1, 1888 are not within the spirit of said act. After the issuance of final certificate and upon full payment for the land by the entryman, he is allowed to sell the same, and surely there is as much necessity for the confirmation of such entries as for any other class of preemption entries conceded to be within the letter of the act of March 3, 1891. I, therefore, hold that the entry in question is prima facie within the provisions of said act, and since the applicant had no notice of the decision of the local office upon the testimony taken at the hearing, which clearly disclosed his interest as transferee, the subsequent proceedings must be, and they are hereby declared to be illegal and set aside, and the case is remanded to your office with directions to proceed in accordance with the instructions to Chiefs of Divisions, dated May 8, 1891, (12 L. D., 450).

PRIVATE CLAIM-SURVEY-JURIDICAL POSSESSION.

RANCHO BUENA VISTA.

In the location of a grant in which the decree of confirmation adopts the act of jurid. ical possession, the survey is controlled by the record of juridical measurement. Acting Secretary Chandler to the Commissioner of the General Land Office, July 24, 1891.

The survey made by Deputy Wheeler of the Rancho Buena Vista, in San Diego Co., California, was rejected by this Department, April 5, 1887 (5 L. D., 559), and a new survey thereof ordered. This decision was adhered to after review (6 L. D., 41). The case is again before the Department, on the appeal of the Rancho claimants, from the decision of your office, of June 12, 1890, rejecting the new survey made by Deputy Willey.

The Buena Vista grant was confirmed, May 16, 1854, by the board of land commissioners and by the United States district court, February 1, 1856, but no patent has yet been issued thereon, because there has been no final survey made and approved.

During the thirty-five years that have elapsed since the confirmation, some six or seven surveys have been made, each to be rejected in its turn for substantially the same faults.

When the case was last here the Department, in its two decisions, pointed out so clearly the errors in the Wheeler survey, that it is a matter of unpleasant surprise to find that the views of the Department have been entirely ignored by the deputy making the last survey, who, repeating the errors of the former, returns what is substantially a duplicate of the survey last rejected.

This case has been so often examined and discussed heretofore by your office, has been gone into so fully by this Department in its deci sions, that it would be an unwarranted consumption of time to go over the record again in detail and decide anew matters fully considered and already adjudicated, because a subordinate officer, charged with the duty of making the new survey has set up his own judgment against that of the Department. It is sufficient herein to order that the judg ment of the Department be executed. An examination of the specifi cation of errors and of the argument of counsel for the claimants shows that the present proceeding is but an indirect effort to obtain a review and reversal of the former decisions in the case. The points are the same as before presented, clothed in somewhat different language; the arguments are but a repetition of what was said before; and a mass of testimony has been taken and filed, tending to prove matters, in rela tion to which the Department decided it would not consider parole testimony.

Your judgment, rejecting the survey of Deputy Willey, is affirmed, and you will direct the surveyor-general of California to cause a new survey of the Rancho to be made, in accordance with the views of the

Department, and to give such plain, written, instructions to the deputy appointed to do the work in the field as will insure its being properly performed.

The decree confirmed a tract of land, twenty-five hundred varas square-adopting the bounds and the description found in the certifi cate of the officer who delivered juridical possession to the grantee. That description becomes therefore the controlling part of the decree. A tract of land, five thousand varas on each side, is a league square, or a square league, containing an area of twenty-five million varas, or 4,438.68 acres. The half of a square league is a tract five thousand varas long and two thousand five hundred in breadth, containing an area of twelve million, five hundred thousand varas, or 2,219.34 acres. (L. O. Rep., 1869, page 406.)

Therefore, the decree of the court, adopting the description of the juridical possession, when it confirmed a tract of land measuring twenty-five hundred varas on each of its four lines, confirmed the onefourth of a square league, containing an area of six thousand, two hun dred and fifty varas, or 1,109.67 acres, constituting a tract "half a league in length and one half in breadth," as petitioned for by the original grantee. The area of the Wheeler survey, heretofore rejected by this Department, was 4,269.60 acres, or 169.08 less than a square league, and the area of Willey's survey, now under consideration, is 4,072.12 acres, or 366.56 less than a square league; and 2,962.45 acres more than the area of the one-fourth of a square league, the amount of land confirmed. This exaggeration of the area of the grant is sought to be jus tified under the pretense of obeying the calls of the juridical possession, and because of the language of the decree where it is stated, after giving the measurements as above, that the tract contains "in all half of a square league." This error in the decree is as self-evident as though it had been stated that two and two make eight. Conceding that the language used is sufficient to create a doubt or uncertainty as to whether the confirmation was for the one-fourth or the one-half of a square league, it certainly is no justification for magnifying the dimensions of the grant to nearly a square league. But the rule in case of any uncertainty of description is too well settled to admit of discussion. The supreme court has said in a number of cases if there be any doubt or uncertainty as to the description of this class of grants recourse must be had to the juridical measurement, the record of which "must necessarily control the action of the officers of the United States in surveying a claim under a confirmed Mexican grant." Graham v. United States, 4 Wall., 259; United States v. Pico, 5 ib., 536.

The certificate of the juridical survey is as follows:

As we stood at one of the boundaries of the garden of the Indian Felipe, the line was drawn east and there were measured and counted two thousand five hundred varas, which terminated at the boundary of Don Lorenzo Soto, where the party interested was ordered to place his land mark. From this place the line was drawn in a south course, there were measured and counted two thousand five hundred varas,

which ended at a small peak where stand two rocks joined together. Here the party interested was ordered to place his land mark. From this point the line was drawn, course west, and there were measured and counted two thousand five hundred varas, which ended at a small red hill, where the party interested was ordered to place his land mark. From this point the line was drawn course north; there were measured and counted two thousand five hundred varas which ended upon a hill, where stands a large rock, and the party in interest was ordered to place his land mark. Here the party in interest was informed that he was now in secure and peaceful possession to the end that he might enjoy it freely and unreservedly, the proceeding being considered as ended.

In seeking for the corners described, Willey says that they were found as stated in his survey, and the establishment of these corners caused the amplification of the area of the grant, as reported by him.

The fact that nearly all of the previous surveys established the four corners at different points, which are described, by each deputy, as answering the descriptions of the juridical possession, shows plainly that in that locality there is nothing very remarkable or unusual in the described points. In fact, there is a large amount of testimony in the record tending to the identification of several other points, as the true corners of the juridical survey In the experimental and private survey of the grant, made by Dexter at the instance of the settlers, who contest the present survey, points similar in character and answering fully the description of the juridical survey are said to be found at each corner of his survey, which only embraces an area of 1,111.01 acres, or approximately the one fourth of a square league, the amount petitioned for and confirmed.

The area of the survey now ordered must approximate closely to the one-fourth of a square league; the northwest corner thereof and the point of beginning must be established at the northwest corner of the old garden of the Indian Felipe, as ordered by the decree-a point, which the record shows, can be readily ascertained. Thence, the course of the juridical survey must be followed, running to the east; to the south; to the west; thence, in as straight a line as may be, to the place of beginning.

A survey on these lines, and for the approximate quantity, will be approved, and none other.

MINING CLAIM-CHARACTER OF LAND.

ROYAL K. PLACER.

In any case, either ex parte, or otherwise, where the character of land embraced within a mineral application is placed in issue, it must appear as a fact that mineral can be secured from such land in paying quantities.

Acting Secretary Chandler to the Commissioner of the General Land Office, July 24, 1891.

I have considered the case of Robert Berry and L. V. Bond, protestants, v. L. B. H. Brown and Joseph W. Kay, claimants and appli cants for the Royal K. Placer claim, survey 2135, Leadville, Colorado.