This case appears to be in all essential respects similar to the one at bar, and under the act of April 21, 1876 (19 Stat., 35), the settlement of the appellant being prior to the reception of notice at the local office of the withdrawal upon definite location, his right under said settlement is protected and he will be allowed to make entry. Judgment reversed. LESHER v. ST. PAUL CATHOLIC MISSION. Motion for review of departmental decision of March 26, 1896, 22 L. D., 365, denied by Acting Secretary Reynolds, July 1, 1896. ALASKA-ACT OF MARCH 3, 1891. MCCOLLOM FISHING AND TRADING CO. The right of purchase conferred by the act of March 3, 1891, upon individuals or corporations engaged in trade or manufactures in Alaska, is limited to land actually occupied for such purposes, not to exceed in any case one hundred and sixty acres. Acting Secretary Reynolds to the Commissioner of the General Land Office, This is an appeal by the McCollom Fishing and Trading Company from your office decision of May 8, 1895, wherein was suspended survey No. 56, made by Clinton Gurnee, Jr., U. S. deputy surveyor, under provisions of sections 12 and 13, act of March 3, 1891 (26 Stat., 1095), of a tract of land containing 145.60 acres, used for trading purposes and situate on Pirate Cove and Unga Straits, Popoff Island, district of Alaska; said survey being suspended for the reason that more land is embraced therein and claimed by the company than is actually occupied or used by the claimants for their business. In your said office decision you say: It is suggested that if the survey was amended by beginning at the south end of course No. 3; thence along the line of ordinary high water mark to the south end of course No. 11; thence southwesterly to the point of beginning, final action by this office would be greatly facilitated. Such a survey would include about 20 acres, besides all the land occupied by the claimants for their business. Claimants in appealing from your office decision file assignments or error as follows: 1. That the survey contains no more land than allowed by the statute of March 3, 1891. 2. That the field notes of the survey are made pursuant to the monuments and boundaries of the company's claim. 3. That the claimant is entitled to 160 acres; that in analogy with the federal and state laws said company should be allowed the lands in any form, so as within the quantity, and conforming to company limits and are adjoining; that such area is necessary to include the improvements of the company and allow shipping grounds and water privileges on the shores of the bay. There are two courses marked upon the plat hereto appended as No. 3, and so designated in the field notes, but the one referred to as No. 3 in your office letter of May 8, 1895, must necessarily mean meander course No. 3, which being the case, an emendation of the survey in accordance with suggestion contained in your office letter, under the state of facts recited, would give appellants all the land to which, it would appear, they are entitled under the law. There is no force in the contention that the survey and field notes thereof, are made pursuant to the "monuments and boundaries" of the company's claim, for the act of March 3, 1891, did not confer upon individuals or corporations engaged in trade or manufactures in the District of Alaska the absolute and unconditional right to purchase one hundred and sixty acres of land for such purposes, but only gave the right to purchase so much land as might be actually occupied for said purposes, "not to exceed," in any case, one hundred and sixty acres. This survey does not only fail to comply with the statute with respect to marking off a tract of land, embracing such particular portion as is actually occupied by the claimants, "as near as practicable in a square form," but it is notable for the remarkable irregularity of the form of the tract claimed, which takes in not only the entire water front on Pirate's Cove, but covers also an extended line along the coast of Unga Straits, which would give to said claimants, in case the survey was approved in its present form, an undue control over and power to prevent vessels from landing and trading along the coast of that portion of Popoff Island. The contention that the said company is entitled, from "analogy with the federal and state laws," to one hundred and sixty acres of land in any form, so it is adjoining, is without force, since it is provided in section 8 of the Act of May 17, 1884 (23 Stat., 26), that "nothing contained in this act shall be construed to put in force in said district (Alaska) the general land laws of the United States." The sale and disposal of the public lands, other than mineral, in the District of Alaska, are regulated entirely by the statutes herein cited, and not, as is seen, by the general land laws affecting the public domain. For the reasons herein given your office decision suspending survey No. 56 in its existing form is hereby affirmed. WELCH v. BUTLER. Motion for review of departmental decision of November 2, 1895, 21 L. D., 369, denied by Acting Secretary Reynolds, July 1, 1896. BLACK QUEEN LODE v. EXCELSIOR No. 1 LODE. Motion for review of departmental decision of March 24, 1896, 22 L. D., 343, denied by Acting Secretary Reynolds, July 1, 1896. TIMBER CULTURE ENTRY-COMMUTATION. JAMES H. LANGSFORD. A timber culture entryman is not entitled to commute his entry under the act of March 3, 1891, if he is not a bona fide resident of the State in which the land is situated. Acting Secretary Reynolds to the Commissioner of the General Land Offiçe, July 1, 1896. (J. L.) This case involves the NW. of section 18, T. 12 S., R. 17 W., Wakeeny land district, Kansas. On March 26, 1888, James H. Langsford made timber culture entry. No. 12,475 of said tract. On October 29, 1894, he made final proof and payment for said tract and was awarded by the local officers final receipt and certificate No. 12,780, under the 5th proviso in section 1 of the act of March 3, 1891 (26 Statutes, 1095). His final proof failed to show that he was an actual bona fide resident of the State of Kansas, as required by said proviso. His own affidavit showed that he had been absent from Kansas for two years. On April 30, 1895, your office suspended and held for cancellation Langsford's final certificate for an affidavit showing that he was a bona fide resident of Kansas at the time of commuting his said entry; and instructed the local officers to notify him that unless evidence of such residence be furnished within sixty days after notice, or an appeal be taken, "his final certificate which is hereby held for cancellation, will be canceled without further notice from this office." Langsford was duly notified, and within sixty days filed his appeal to this Department. Your office decision is clearly right, and it is hereby affirmed. (See Circular of October 30, 1895, pages 35 and 204.) HALLING . CENTRAL PACIFIC R. R. Co. Motion for review of departmental decision of March 27, 1896, 22 L. D., 408, denied by Acting Secretary Reynolds, July 1, 1896. OKLAHOMA LANDS-SETTLEMENT RIGHT. PENWELL v. CHRISTIAN. The conditions attendant upon the opening of Oklahoma to settlement require the recognition of extremely slight initial acts of settlement in determining priorities between adverse claimants, if such primary acts are followed by residence within such time as clearly shows good faith. Acting Secretary Reynolds to the Commissioner of the General Land Office, D. H. Penwell appeals from your office decision of July 6, 1895, dismissing his contest against homestead entry No. 117 of Rial Christian, made September 18, 1893, for lots 3 and 4 and the E. of the SW. of Sec. 31, T. 27 N., R. 1 E., Perry land district, Oklahoma Territory. The facts are sufficiently stated in your said office decision. The question presented is whether the prior act of settlement made by contestant, taken in connection with his subsequent acts, are such as to constitute his rights as a homestead claimant superior to those of the entryman. The evidence shows that the contestant was first upon the land, in the race on September 16, 1893, but that his primary acts of settlement were slight, and consisted in sticking a stake three or four feet long in the ground near the south line, with a red handkerchief attached to the stake, and on the next day he dug a hole near his stake about two feet deep and three or four feet across. Prior to his digging this hole the entryman had dug a small hole near the northwest corner of the tract, about a spade deep and two feet across, making a mound of the dirt, so that the only act of the contestant done prior to the entryman consisted in setting said stake with his handkerchief attached, and the question is whether this act is such an assertion of title as will defeat the entry of Christian. Ordinarily it would not be deemed sufficient, in the absence of actual notice to the entryman, but in cases of this nature, where the good faith of both parties is established and neither party is guilty of laches, I am of the opinion that the only sound rule that can be adopted is to award the land to the person who was first upon the land and performed any act that evinces an intention to assert title. In the race for lands in Oklahoma Territory, the sticking of a stake with a flag or card attached was the recognized method of asserting possession, and too many cases have been adjudicated in accordance with the rule above stated to justify a departure therefrom. In the acquisition of homesteads in Oklahoma under the proclamation of the President and under the rules and regulations which anticipated the rush or race that would inevitably occur in the efforts of claimants to secure their homesteads, and which rules and regulations sought to secure to all equal opportunity and fairness in competing for prior possession or settlement, and where the rights of contestants for a certain tract are in other respects equal, the maxim of qui prior est tempore, potior est jure applies, and he who was first in point of time in reaching the tract, and performed some act which signified an intention to claim it as his own, and followed such primary act by residence within such reasonable time as clearly shows his good faith, should be held to have the better title. No safer rule can in my opinion be applied in such a case than that he has the better title who was first in point of time. This rule was recognized in the case of Hurt v. Giffin (17 L. D., 162), wherein it was held that priority of right might properly be accorded to one who first reaches the tract and puts up a stake with the announcement of his claim thereon, and such initial act of settlement is duly followed by residence in good faith. That case also recognized the peculiar and special conditions under which the homestead claims were initiated in Oklahoma, and as the government created the condition, justice and a due administration of the law requires the recognition of the conditions in the adjudication of cases arising out of them. As was said in Hurt v. Giffin (17 L. D., 166–7)— It is a notorious fact, that in the great race for homes in the Territory, he who first reached a tract and staked it, was regarded as the prior settler, and as eager as men were to secure homes, this kind of settlement was generally respected by the honest people who rushed into the Territory, for as a matter of fact, to stake a claim, or dig a hole, or put up a wagon sheet or tent, was about all that the great majority of the settlers could accomplish in the afternoon of the 22d of April, 1889, circumstanced as they were, and very many settlements have been held valid in Oklahoma, that were no better indicated, fixed and determined than was the settlement of Hurt. This settlement has been diligently followed up, until it has ripened into a good home, good faith being manifest at all times. Had it not been for Giffin's interference, he would have had his filing on the land, and every act would have related back to the moment he went upon the land and staked it, intending to make it his home. In the case of Strutz r. Crabb (1' L. D., 122), citing the case of Hurt . Giffin (17 L. D., 162), it was held that digging a small hole was not an act to constitute sufficient notice to the public of an intention to claim the land. None of the cases cited in support of the proposition announced in Strutz r. Crabb were Oklahoma cases, nor growing out of conditions similar to those existing under the opening of the Oklahoma lands, nor was the case of Strutz . Crabb an Oklahoma case, but involved a homestead entry in South Dakota, and to apply the holding in that case to cases involving the question of priority of settlement in Oklahoma in homestead cases would defeat the rules and regulations as well as the spirit of the law, which was designed to award the land to the first qualified settler who settled upon the land and complied with the law. I am of the opinion that the case of Strutz v. Crabb is not authority in determining the question as to what constitutes an act of settlement in homestead entries in Oklahoma under the law and the President's |