it does so, then your office will direct that a hearing be had to determine the rights of the State to the land in question. If the State fails to file its claim within the time named, and there is no other objection, the entry will be passed to patent.

The judgment appealed from is accordingly modified.

LOUISE MINING COMPANY.

Motion for review of departmental decision of June 9, 1896 (22 L. D., 663), denied by Assistant Secretary Reynolds, September 11, 1896.

SECOND CONTEST-COMPLIANCE WITH LAW DURING PENDING

CONTEST.

JOHNSON ET AL. v. SMITH ET AL.

A second contest may be properly entertained on a charge that the entryman has failed to comply with the law since the hearing in the former suit.

Assistant Secretary Reynolds to the Commissioner of the General Land Office, September 11, 1896. (E. M. R.)

This case involves the NW. and the NE. of section 7, T. 48 N., R. 8 W., Ashland land district, Wisconsin. The record shows that on February 23, 1891, Abraham Johnson made homestead entry of the NW. of the above described land, and on February 24, 1891, Owen R. Tracey made homestead entry for the remaining quarter section.

Henry M. Smith and Thomas Lowe filed affidavits of contest alleging prior settlement under the act of September 29, 1890 (26 Stat., 496), which gave preference rights of entry to settlers upon these lands, and thereupon such proceedings were had which culminated in departmental decision of October 18, 1893 (17 L. D., 454), canceling the entries of Johnson and Tracey, which action was affirmed on April 16, 1894 (18 L. D., 409).

May 30, 1894, Lowe and Smith made homestead entries, the former of the N. of the NE. the S. of the NE.

ship and range.

and the N. of the NW. 4, and the latter of and the S. of the NW. of said section, town

On June 6, 1894, Johnson and Tracey filed affidavits of contest against the entries of Lowe and Smith, in addition to affidavits made in the latter part of May, 1894. The register and receiver denied the applications, and upon appeal your office decision affirmed their action, which action was affirmed by the Department on February 4, 1896. A motion for review having been filed, and having been entertained, the case is before the Department for final adjudication.

In the decision complained of it was said:

This Department has decided that Smith and Lowe were entitled to enter the lands in controversy within six months after September 29, 1890, the date of the act. That

question is no longer an open one. It is res judicata. But when they offered to exercise their right, they found that the lands had been entered by other parties, and being thus segregated from the public domain were beyond their present reach. While they remained so segregated, the lands were no longer public. They were not available either for settlement or entry, and Lowe and Smith could not rightfully maintain residence thereon. To have done so would have made them trespassers upon the rights of Johnson and Tracey, who were entitled to sole possession and occupancy so long as their entries remained of record.

An examination of the affidavits of contest discloses that those filed on June 4, 1894, are, when taken by themselves, insufficient upon which to base a judgment ordering a hearing, but when coupled with those made on the 24th or 25th of May, 1894, it appears that they contain a charge which justifies the Department in taking such action. The affidavits when so considered together are equivalent to stating that since the former contest the entrymen have not complied with the law with reference to the maintenance of residence and cultivation as required, nor can it be said that this matter is res judicata, for the reason that the only matter adjudicated was up to the former hearing, and nothing that may have transpired showing non-compliance with the law since, has been, or could have been, adjudicated by that decision.

It is a familiar doctrine of this Department that he who claims a right of entry by reason of prior settlement can not defer the establishment and maintenance of residence until the allowance of his application to enter. This doctrine was laid down in Hall v. Stone (16 L. D., 199), where the Department held, inter alia:

A homesteader who claims priority of right by virtue of an alleged settlement, must comply with the settlement law and can not defer the establishment and maintenance of residence until the allowance of his application to enter.

This was again asserted in McInnes et al. v. Cotter (21 L. D., 97), where it was held (syllabus):

One who claims the right to make a homestead entry on account of priority of settlement must show that the alleged settlement was followed by the establishment and maintenance of residence.

See also, to the same effect, Foote v. McMillan (22 L. D., 280). There is contained in the answer of the defendants to this action a prayer for the dismissal of the appeal taken from the Commissioner's decision prior to the rendition of the judgment now sought to be reviewed. In view of the apparent sufficiency of the causes of action alleged by the petitioners, and the allowance of the appeal by the Commissioner at the time, for reasons that appeared just and proper to him, that question will not now be passed upon.

The petitioners will bear the expenses of this hearing, and it is better that the defendants be put to the annoyance of another trial than that these petitioners, who appear to be residents upon the land, should lose this opportunity of proving what may be their valuable rights.

The petition is therefore granted, and you will direct that a hearing be had to determine the matters presented by the affidavits of contest.

GOWDY ET AL. v. KISMET GOLD MINING CO.

Motion for review of departmental decision of May 23, 1896, 22 L. D., 624, denied by Assistant Secretary Reynolds, September 11, 1896.

PORTERFIELD SCRIP-UNSURVEYED LAND.

HOSMER v. DENNY ET AL.

Porterfield scrip is locatable only upon lands that have been surveyed under authority of the government.

Assistant Secretary Reynolds to the Commissioner of the General Land Office, September 11, 1896. (W. M. W.)

The case of A. A. Hosmer against A. A. Denny et al. has been considered, on appeal of the former from your office decision of December 13, 1894, rejecting his application to locate Porterfield scrip upon a certain tract of land alleged to be located between the meander line of donation claim No. 40 patented to Arthur A. Denny and the township meander line of Elliott's Bay, as shown by the survey of township 25 N., range 4 E., Seattle, Washington, land district.

On July 1, 1889, Hosmer, the claimant, made his application to be allowed to locate Porterfield scrip warrant No. 23 upon the land in controversy, describing it as follows:

Beginning at the government meander corner or evidence post on the 6th standard parallel 2.96 chs. west of the standard corner to Secs. 31 and 32, town 25 N., range 4 east, Will. Mer. in the Territory of Washington; thence along government meander line north 42° west 25 chains; thence north 49° 30′ west, 29.53 chains (here intersecting west boundary line A. A. Denny's donation claim No. 40); thence along the west boundary of the A. A. Denny donation claim No. 40, south 50° 45′ E., 34.14 chains; thence south 38° 15′ east, 17.68 chs. to southwest fractional corner of the A. A. Denny's claim No. 40; thence S. 38° 22' east, 2.89 chs., to place of beginning in section No. 31, township No. 25 north of range 4 E., . . containing 3.02 acres.

On July 19, 1889, the local officers rejected Hosmer's application, on the following grounds:

1. There is no such tract of land shown on the records of this office as public lands of the United States.

2. That if there [is] such a tract of land it is not surveyed public land of the United States and therefore not subject to location of the class of scrip known as Porterfield scrip.

3. Said tract is occupied land within the corporate limits of the city of Seattle, and therefore not subject to the location of the class of scrip described.

The applicant appealed to your office.

On June 28, 1890, your office affirmed the judgment of the register and receiver.

Hosmer appealed to the Department.

On July 23, 1892, the Department found that "there are interested parties in possession" of the land in controversy "who have had no

notice of Hosmer's said application," and thereupon directed that a hearing be ordered "to determine the true status of the land applied for," with notice to Denny and all parties in interest and in possession of said land.

The hearing was held before the register and receiver, after notice to the several parties claiming an interest in the land in controversy. A. A. Denny, in his answer to Hosmer's application, alleges that: He is the same person who located, made proof upon and received the patent to donation entry No. 40, and that said donation claim includes the land in controversy. 2. He alleges that there is no such tract of land shown on the records in the office of the register and receiver of the United States Land Office at Seattle, Washington, as public land of the United States.

3. He alleges that if there be such a tract of land that it is not surveyed public land of the United States.

4. He alleges that said tract described is within the corporate limits of the city of Seattle, and it is occupied, and extensive improvements have been made thereon in aid of commerce and navigation.

He further alleges ownership in fee in certain lots in the city of Seattle, which are included in a portion of the tract covered by Hosmer's application.

These issues are substantially pleaded by divers other parties to the record.

The register and receiver rejected Hosmer's application, and he appealed to your office.

On December 13, 1894, your office affirmed the judgment of the local officers.

Hosmer appeals.

The assignment of errors contains seventeen specifications of alleged errors in your office decision; therefore it is impracticable to set them out in full in this opinion.

The testimony in the case is voluminous, covering over six hundred pages of typewritten matter. It has been carefully examined and duly considered in connection with oral and written arguments submitted by counsel representing the respective parties.

The land in controversy lies between the meander line of the township survey and the meander line of the Denny donation claim on Elliott's Bay, an arm of Puget Sound. It is located in the limits of the city of Seattle, and has on it very valuable buildings.

The rights of Denny under his patented donation claim and those holding under him, the rights of the State of Washington to tide lands on its borders, the effect of meander lines as affecting boundaries under the system of public surveys, and other kindred questions, have all been presented and argued by the respective parties. In view of the conclusion I reach in the case, it is wholly unnecessary to discuss or pass upon any of these questions. The only real, material, question to be determined is, whether under the law and facts disclosed in the record Hosmer has the right to locate his Porterfield scrip upon the land described in his application.

The act of Congress under which the Porterfield scrip was issued (12 Stat., 836), required the Secretary of the Interior to issue to the executors of Robert Porterfield a number of warrants equal to 6,133 acres of land, according:

to the usual subdivisions of the public surveys, in quantities not less than forty acres; to be by them located on any of the public lands which may have been or may be surveyed, and which have not been otherwise appropriated at the time of such location within any of the States or Territories of the United States, where the minimum price for the same shall not exceed the sum of one dollar and twentyfive cents per acre; to be selected and located in conformity with the legal subdivisions of such surveys.

These provisions are plain and unambiguous. The scrip, or warrants, provided for can only be located on public lands that have been surveyed; that is, surveyed under the authority of the government of the United States. The act specifically and clearly limits the selection and location of such scrip to surveyed lands in conformity with the legal subdivisions of the United States public surveys.

Whether lands have been surveyed by the authority of the United States is a question of fact that must be conclusively determined from the records of your office.

The Commissioner of the General Land Office is charged under the law and surveying manual, under the direction of the Secretary of the Interior, with the performance of all executive duties appertaining "to the surveying and sale of the public lands of the United States, or in any wise respecting such public lands." See Manual of Surveying, page 9, sec. 32.

It is claimed by counsel for applicant that the discrepancies between the original survey of the township in 1856 and the survey of Denny's donation claim of 1860, as shown on the respective plats, amount to a government survey of the land in question. This contention is not well taken. No such tract, lot, parcel, or other legal subdivision of land, appears on the original township plat, and it does not appear on the Denny survey as such lot or other legal subdivision of public lands. In fact, it could not properly so appear on the plat of the survey of the Denny claim, for the official authority for such survey was confined to marking the boundaries of Denny's donation claim and conforming his lines as nearly as practicable to the then existing township surveys.

Your office held in the decision appealed from that the land applied for is not public land; that it occupied the position of tide lands on Elliott's Bay and passed to the State of Washington under the doctrine announced in Hardin v. Jordan, 140 U. S., 380, and other authorities, as well as under Frank Burns, 10 L. D., 365.

I concur in your reasoning, but at the same time prefer to rest my decision upon the fact that the land applied for is not surveyed public land, and therefore under the law Hosmer can not be permitted to locate Porterfield scrip thereon. His application is dismissed, and your office decision appealed from is affirmed.

1814-VOL 23-21