Acting Secretary Reynolds to the Commissioner of the General Land Office, August 12, 1896. (E. B., Jr.) This is a contest for a deed to lot 6, block 55, in the city of Guthrie, Oklahoma Territory, under the provisions of the act of May 14, 1890 (26 Stat., 109). Of the numerous parties heretofore contesting for title to said lot all but two, Thomas D. Hance, and Andrew Frink and William Lowe (jointly), have dropped out of the case by default before the local townsite board or by failure to appeal from adverse decisions. The city of Guthrie appears as a party pursuant to paragraph 13 of departmental regulations of November 30, 1894, 19 L. D., 334, to protect its interests in the premises under the fourth section of said act. The case comes before the Department on appeal by Hance, and Frink and Lowe, from your office decision of November 7, 1895, denying the former a deed on the ground of his abandonment of the lot, and the latter on the ground that they asserted no claim thereto prior to the entry of the townsite of Guthrie, and holding that the lot should be disposed of according to the provisions of section four above mentioned. This decision, as to Frink and Lowe, was adhered to by your office January 24, 1896, upon review at the motion of this party. The record history of the case is fully set out in these decisions, and further recital here, in detail, is therefore unnecessary. The evidence is very voluminous and conflicting, but therefrom the following pertinent facts sufficiently appear: The lot in question forms part of the land opened to settlement at twelve o'clock, noon, on April 22, 1889, under the act of March 2, 1889 (25 Stat., 1005), and the President's proclamation of March 23, 1889, pursuant thereto, and of the townsite of Guthrie, which was entered August 5, 1890. The first actual occupant of the lot was William C. Jones, then United States marshal for the district of, Kansas, which included the country opened for settlement as above, whose tent was erected on the front part of the lot by his deputies prior to or very soon after the hour of the opening. Jones soon afterward erected a frame building on the site of the tent, which he leased to different parties until about October first, 1889. May 17, 1889, Jones was awarded a warranty certificate for the lot by the town authorities. On October 9, 1889, Frink and Lowe became tenants of the Jones building under a lease executed through Jones' agents, and contiuned to occupy the same as such tenants, renewing their lease in March, 1891, and to pay rent therefor, until shortly before the second trial before the townsite board to determine the right to possession, in November, 1894. Frink and Lowe now contend that they have claimed said lot in their own right since about December, 1889, when they first learned that Jones was their landlord. This contention is utterly inconsistent with the established facts in the premises. After the entry of said townsite the townsite board on August 23d gave notice for all claimants for lots in Guthrie to present their claims within thirty days. Prior to the first trial between claimants for this lot, January 26, 1891, seven persons had filed claims therefor. Frink and Lowe, although then residents of Guthrie, and engaged in keeping a restaurant on said lot, made no response to this notice. Not until June 9, 1891, some time after a decision by the local board, adverse to Jones and the other claimants and favorable to the city of Guthrie, and after appeal to your office, did Frink and Lowe file an application for a deed for the lot. At, prior and for a long time subsequent to the townsite entry they were occupying the premises only as the tenants of Jones, and had asserted no claim hostile to him. Jones had been properly decided, both by the townsite board and your office, to have been disqualified as an applicant for a deed to said lot by reason of his "soonerism." But this fact is immaterial so far as the claim of Frink and Lowe is concerned. They entered upon the premises as tenants and continued there as tenants without claiming or asserting any other interest therein until June 9, 1891. They evidently did not intend to deny Jones' title when they entered. The first distinct claim they set up to the lot was when they filed their application with the townsite board. They were not occupants in their own right within the meaning of the law at the date of the townsite entry, and this fact is conclusive against them in their present claim (Benson v. Hunter, 19 L. D., 290, and Bowie v. Graff, 21 L. D., 522). Hance's occupancy of said lot commenced about 2:30 P. M. April 22, 1889, was continued, as shown by the evidence and more fully stated in your office decision, by residence, until the latter part of May, following, and by improvements until about the last of November, 1889, when the remnant of a building he had placed thereon was thrown off by the agent of Jones. He was not thereafter in any sense an occupant of the lot. He took no legal steps to regain possession other than to bring his claim before the townsite board. His contention that he removed from the lot in May, 1889, because his business as a restaurant keeper was rendered unprofitable and the health of himself and family jeopardized by the proximity of several privies, and that he feared to return to its former place on the lot the lumber that was thrown off, or attempt to maintain any improvements thereon, lest he become liable as trespasser, and that therefore his failure to retain any possession of the lot is excusable, is not sound. No force or threats were used to eject him or to frighten him away. He left of his own accord, taking up his residence shortly afterward on a claim near the city upon which he continued to reside at the date of the townsite entry. The lumber he used to build sidewalks in front of the Capital Hotel, then owned or leased by him in the same city. It is in evidence that when asked why he hauled his lumber away, he stated that it was of no use to keep it there, as "Jones will beat me anyway." He must be regarded as having abandoned his possession or right to possession of said lot when he acquiesced in the removal of his improvements by hauling away the last vestige thereof without protest to Jones or his agent or making any apparent effort to have it restored, or in any other way to maintain an occupation of the lot. Section four of the act referred to above is as follows: That all lots not disposed of as hereinbefore provided for shall be sold under the direction of the Secretary of the Interior for the benefit of the municipal government of any such town, or the same or any part thereof may be reserved for public use as sites for public buildings, or for the purpose of parks, if in the judgment of the Secretary such reservation would be for the public interest, and the Secretary shall execute proper conveyances to carry out the provisions of this section. Your office decision is affirmed. Said lot will be disposed of under the provisions of the section set forth above. TIMBER TRESPASS-SETTLEMENT. JOSEPH CLIFFORD. There is no authority in the Department to accept in settlement of a timber trespass an amount less than that found due the government. Acting Secretary Reynolds to the Commissioner of the General Land Office, (J. I. P.) August 13, 1896. (A. M.) On the 16th ultimo you submitted the report of a timber trespass on certain unsurveyed non-mineral public lands in Montana by Joseph Clifford, together with his propositions to settle for the wood involved in the trespass. It appears that Clifford cut three hundred and thirteen cords of wood from the lands, knowing them to be of the above character; that he sold fifty-five cords and that two hundred and fifty-eight cords remain on the ground where cut. The trespass was a wilful one and under the decision of the U. S. supreme court in the Wooden-ware case-106 U. S. 432-the government is entitled to damages in settlement thereof in the sum of $644. This total includes $192.50 the amount received by the trespasser for the wood sold by him and $451.50 the reported value of the remainder of the wood where found. In order to effect a settlement Clifford has submitted, one after the other, three propositions. The latest and best of these contains the offer to pay $313 for the wood at $1 per cord. In summing up the case your letter states that this proposition does not cover the full amount of his liability for the enhanced value of said timber and under a strict construction of the law, the proposition would have to be rejected. Doubts are also expressed in your letter as to the recovery of any amount in case of suit and that it is not probable that judgment would be rendered for an amount in excess of that offered and you have accordingly recommended that this last proposition be accepted in full of his liability. I do not agree with this recommendation. In stating the case, and in referring to one of Clifford's propositions, you used this language: the proposition was rejected, in view of the decision-5 L. D. 240—that there is no authority in this Department for accepting in settlement for trespass an amount less than that due the government. The ruling in the decision cited is that which governs in all cases of timber trespass and was properly applied by you in rejecting the proposition then before you. It is equally applicable to the proposition that I am asked to accept, for in both propositions the offer is below the amount ascertained to be due the government. The only course open to this Department is to submit the case to the Department of Justice for civil suit. With that end in view the original papers submitted by you are returned herewith that you may supply copies of them for transmission to the Attorney General. WOOD v. BEACH. Motions for review and rehearing in the case above entitled denied by Acting Secretary Reynolds, August 15, 1896. See departmental decision of March 26, 1896, 22 L. D., 382. LEAVE OF ABSENCE-EFFECT OF APPLICATION. On a proper showing a second year's leave of absence may be granted without requiring an intervening period of personal presence on the land. Where an application for leave of absence is wrongfully denied, and afterwards allowed on appeal, the applicant will be protected as to any absence during the period covered by the application. Acting Secretary Reynolds to the Commissioner of the General Land Office, (J. L. McC.) August 15, 1896. Esther L. Wilson has appealed from the decision of your office, dated November 16, 1895, rejecting her application for leave of absence for one year from October 1, 1894, from her homestead claim, to wit, the SW. of Sec. 29, T. 15 N., R. 14 W., Kingfisher land district, Oklahoma Territory. Mrs. Wilson had been absent from her claim for one year, because of a failure of crops. When the year of her absence had nearly expired she was taken sick with asthma, with which she was confined to her room and her bed (in Lawrence, Kansas). She thereupon applied for another year's leave of absence. Your office decision quotes the law of March 2, 1889 (25 Stat., 854), providing for leave of absence, for certain reasons specified, "for a period not exceeding one year at any one time"; and it holds that, in view of the fact that said party has been granted a leave of absence for one year, under section 3 of said act, she cannot be granted an additional leave of absence for one year without any period of time intervening. The Department has held that when the condition named in section 3, act of March 2, 1889, are made to appear to the local office, leave of absence should not be denied for the reason alone that no period of personal presence on the land has intervened between the expiration of a formal leave and the application for a second or subsequent leave. (May Lockhart, syllabus, 22 L. D., 706.) In my opinion, in view of the showing made by Mrs. Wilson in the case at bar, a second year's leave of absence should have been granted without requiring her to return to the claim. But inasmuch as nearly two years have elapsed since the application the case will be treated as though said application had been granted, and any absence on her part from the land during the period designated in said application will be protected under the provisions of the law. The decision of your office is reversed. HOMESTEAD CONTEST-PRIORITY OF SETTLEMENT. SUMNER v. ROBERTS. In case of a contest against an entry on the ground of a prior settlement right, the burden of proof is upon the contestant to show that his settlement antedates both the entry and settlement of the contestee, and if he fails to thus show such priority the entry must stand. In a contest of such character, doubt as to the fact of priority, or a finding of simultaneous settlement, does not justify an arbitrary division of the land between the parties, or an award thereof to the highest bidder. Secretary Smith to the Commissioner of the General Land Office, August (W. A. L.) 21, 1896. (C. J. W.) On September 28, 1893, Albert M. Roberts made homestead entry of the NE. of Sec. 22, T. 25 N., R. 1 W., Perry, Oklahoma. This land is in the Cherokee Outlet, and was opened to settlement September 16, 1893. On October 27, 1893, William M. Sumner filed a contest against said entry, alleging settlement prior to said entry and prior to Roberts' settlement. The case was heard on November 30, 1894, and the local officers found that both parties arrived on the land on the evening of the 16th of September, 1893, and performed certain initial acts of settlement which were followed by more valuable and permanent improvements, within |