received and filed on the 29th day of May, 1890, and no notice of the receipt of said plat was published, or notice that said land was subject to entry, and that contestant only knew thereof long after claimant filed, and that the Hon. Register and Receiver refused to permit or receive a filing upon said land until so instructed by said letter aforesaid, and contestant never had notice or an opportunity of knowing that said land was subject to entry, and claimant, with intent to cheat and defraud contestant, and defeat his just claim and right to said land, filed upon said land, and misled contestant in the premises.

Service was had on the claimant by publication, and the hearing before the local officers. As a result, they recommended the cancellation of Jameson's entry, and that plaintiff be given the preference right of entry. On appeal, your office, by letter of December 1, 1890, reversed their action, whereupon Dobie prosecutes this appeal, assigning as error that your said office decision is against the law and the evidence.

Informal inquiry in your office discloses the fact that the survey of a part of the township in which this land is situated, was approved January 31, 1870. It did not, however, include section 9. The south and west lines of said section were run, and corners established, marking the north-west corner of section 15, and the north-east corner of section 16; also the north west corner of section 16, the north-east corner of section 17, and the south-east corner of section 8; also the northwest corner of section 8, and the south-east corner of section 5. Thus three corners of what is now section 9, were established, to wit: the southeast, the south-west and the north-west.

It is stated in the opinions of your office, and the local office, and conceded by counsel on both sides, that Jameson tendered his homestead application for the SW. of said section 9, November 21, 1889, which was rejected because the land was unsurveyed, whereupon he appealed. It seems that the claimant, who is himself a surveyor, and has had much to do with the surveys of the public lands, enquired at the office of the surveyor-general of Washington, after his appeal, about the survey of this section, and was informed by the clerk that he considered this section surveyed, "as much as it ever would be." It seems he came east on a business trip, and called at your office, and finding that his appeal had not been sent up, he wrote the local office concerning it, and the case reached your office December 22, 1889, and on May 16, 1890, your office sent the following letter to the surveyor-general: Upon the receipt hereof, you will please amend the original plat of township 14 north, range 9 west, Willamette Meridian, by protracting thereon the south-west quarter of section 9. Three corners of said quarter-section having been marked in the field, and under the general rule, the quarter-section may be shown upon the plat.

Forward authenticated diagrams, showing the amendment to this office, and to the proper local land office.

The amended plat was sent by the surveyor-general to the local office May 26, 1890, and your office, by letter of June 7, 1890, returned Jameson's application to make homestead entry, to the local office, "for your (the local office's) further action." On June 20, following, his entry was

placed of record. It is conceded that no notice of the receipt of the amended plat, or notice that the said land was subject to entry, was given by publication.

It is contended by counsel for Dobie that the allowance for Jameson's entry was, under these circumstances, erroneous, inasmuch as the notice required to be given by the circular of instructions of October 21, 1885, (4 L. D., 202), was not given. These instructions specifically state how publicity shall be given, by posting notices, and otherwise, that the plat of survey will be filed on a day to be named, "which shall not be less than thirty days from the date of such notice", and until this is done, the plat will not be regarded as officially received, and it is only after such notice has been given, that entry can be made. of the lands included in the survey.

On the other hand, it is insisted that as this was simply an amendment to a survey, without work in the field, made by protracting the lines in the office, it does not come within the rule; and the entry should be allowed to stand.

Admitting, for the sake of argument, that this section could thus be considered as legally surveyed for the purposes of entry, yet I think proper publicity should have been given of the fact, as required by the rule. The only object in giving this notice is to give all settlers an equal opportunity to protect their settlement rights; to give all an equal chance in the presentment of their claims. While settlers on unsurveyed land acquire no rights thereto, as against the government, yet, as between themselves, the question as to who has the prior right, will be inquired into in controversies between them.

It is fair to assume that Jameson, who is evidently skilled in all matters pertaining to surveys of the public land, procured the survey of this section; and within thirty days after the amended plat was filed he made his entry. I think this was clearly erroneous, and he should not be allowed any advantage by reason thereof, and that this case should be decided solely on the question of prior settlement, disregarding, for the purposes of this controversy, his entry.

It is contended by counsel for Jameson, that if his entry be considered erroneous on this ground, then the thirty days' notice must be given before an entry can be allowed. This is not tenable as to the land in controversy, because the very object of giving the notice has been attained; that is, so far as the parties to this controversy are concerned. It is shown, incidentally, that there were settlers on the balance, at least, some on other parts, of the section, but if there are any controversies as between them, they are not now before me, and it is only necessary to say that they will be decided on their own merits when presented.

This question of notice to the settlers after survey, as presented in the case at bar, is clearly distinguishable from that decided in Lauben. heimer v. Taylor (18 L. D., 214). In that case, Taylor's entry was not

made until eight months after the plat had been filed, and there was no charge or showing made that the local office had not given the required notice.

It is shown by the testimony in this case that one Beck had built on the S. of said quarter-section, the land claimed by Dobie, a house sixteen by twenty feet. The construction was begun in December, 1889, and finished in the latter part of April, 1890. Dobie purchased these improvements, and settled upon the land May 1, 1890. There had also been some clearing done by Beck, and Dobie did some more after his settlement. He lived on the land continuously from that time. There is no attempt made by defendant to dispute the fact of Dobie's settlement and residence. It is a well settled rule that a settler on the public land cannot claim any rights, as such, by reason of the acts of his predecessor on the land. He has the right to purchase and use the improvements as his own, but his rights as a settler date from his own settlement on the land.

Jameson testifies that he first went upon the land on October 14, 1889; "and looking around for a site, I selected this claim." On this visit he was accompanied by one Meyer. At this time, Jameson says he was there two or three hours; he says he was on three of the forties of the quarter, and "did a little slashing, sufficient to satisfy myself that I claimed the land as my residence for the future." He used a small hand-axe for slashing, and says he did it alone, Meyer not being present; that it was twenty or thirty feet square, and it took him fif teen or twenty minutes to do it. The point at which this was done was north of the south line of the NW. of said SW. 4. (The testimony shows that the S. of said quarter-section fronts on an arm of Shoalwater Bay; that it rises from the tide lands to an altitude sufficient to give a good view of the Bay, to about the east and west centre line dividing said SW. 4, when the ground recedes, thus making this line the crest of the hill). The point where this slashing was done was therefore over the hill from the Bay, and by contestant's witnesses, it is said that the Bay cannot be seen from that point. Jameson says the steps taken to make actual settlement, were to hire some men some time after this visit, to "build a house, and make the necessary improvements to establish my claim." He was again on there about an hour November 7, 1889, "and made another examination of the land.” In the construction of this house he employed Friend, Meyer, Ingle, and one Michael Daly, who is shown to have been in his employ for several years, assisted them. The house was twelve by fourteen feet, of split lumber, with a window covered with muslin, and a door, which was finished about January 1, 1890. The same men, during this time, also built a house for Daly.

It appears that "on his return from the east", Jameson ascertained from Friend the sort of a house he had built, when he concluded it was not suitable for his family, and directed Friend "to select a more eligi

ble site", and sent him over again to build another house. The new house was also built of split lumber, near the site of the first, and on the N. of said quarter-section. It was begun about February 23, 1890, but it is not definitely shown when it was completed. It was built by Daly and Friend, of lumber that they had sawed and split themselves; it was fourteen by twenty feet, with a kitchen ten by fourteen feet, containing four rooms in all.

Jameson says he was there again in April, and stayed all night. On July 16, his family moved in the house, and he was then there two or three days; was there again in August one day; in September two days; and in December two nights and one day. These visits comprise his entire presence on the land.

It will thus be seen that Jameson's presence on the land prior to May 1, the date of Dobie's settlement, were his visits in October, November and April. It is not shown that he did anything on any of these occasions, that could be construed as a bona fide settlement. He did not make it his home, or do anything personally to indicate that he had any intention of so doing; none of his effects, or those of his family, were on the land until July 16.

The acts of settlement upon unsurveyed land must be of such a character, and so open and notorious, that the public generally, may have notice of the settler's claim. Little v. Durant (3 L. D., 74); Mc

Weeney v. Greene (9 L. D., 38).

These acts cannot be done by an agent or employee, but must be performed by the individual himself. Byer v. Burrill (6 L. D., 521); Powers v. Ady (11 L. D., 175).

Your judgment is therefore reversed, and Jameson's entry, to the extent of the conflict with Dobie's claim, will be cancelled; Jameson's entry to stand, if he so desires, for the remainder of said SW. 1, subject to a full compliance with the requirements of the law.

PRACTICE-NOTICE OF APPEAL.

NORTHERN PACIFIC R. R. Co. v. OLSON.

A copy of the appeal and argument thereon mailed to the register of the local office is not notice of such appeal to the adverse party if not served on him by said officer.

Secretary Smith to the Commissioner of the General Land Office, July 20, (J. I. H.) (F. W. C.)

1894.

With your office letter of March 19, 1889, was forwarded the record in the case of the Northern Pacific Railroad Company v. Peter Olson, involving the SW. NW., W. SW. and SE. SW. 1, Sec. 9, T. 18 N., R. 8 W., Seattle, Washington, on appeal by the company from your

office decision of October 9, 1888, sustaining the action of the local officers in rejecting its attempted selection of this land, the list including which was filed April 28, 1885.

This land is embraced in the homestead entry of Peter Olson, made March 22, 1886, and on behalf of Olson a motion has been filed to dis miss the appeal by the company for the reason that no service of the same was ever made upon him, as required by the rules of practice.

In support of his motion Olson alleges that he was informed by the local officers that the railroad company had no claim to this land; that in accordance with published notice he made proof in 1891, against the acceptance of which the company filed no protest, and the same was regularly accepted and final certificate issued; that the first he learned of any adverse claim by the company was in answer to a letter addressed to your office last February, making inquiry as to why patent did not issue upon his entry, when he was informed that the land was involved in a case pending before this Department upon appeal by the company, as before set forth.

An examination of said appeal shows that accompanying the appeal is an affidavit by the resident counsel for the company, to the effect that on November 16, 1888, he mailed a registered letter addressed to the register of the United States land office, Seattle, Washington, enclosing a copy of the appeal and argument in this case.

It is plain that this is not sufficient notice, for if the company chose to make the register its agent, and he failed to make the service as required, the company is bound thereby.

As the appeal was never served upon Olson, the same must be, and is hereby, accordingly dismissed.

HOMESTEAD APPLICANT-SECTION 2289 R. S.

CHILDS v. AYERST ET AL.

One who is in possession of a quarter section of land under a timber culture entry is . not the "proprietor" of said tract and disqualified thereby as a homestead applicant under section 2289 R. S., as amended by the act of March 3, 1891; nor is the ownership of stock, issued by a corporation whose capital is invested in lands, a disqualification under said statute.

Secretary Smith to the Commissioner of the General Land Office, July 21, (J. I. H.)

1894.

(P. J. C.)

The land involved in this appeal is the SE. of Sec. 30, T. 153 R. 47, Crookston, Minnesota, land district.

The history of this tract, so far as material to this controversy, is that in May, 1879, one John H. Friese filed a pre-emption declaratory statement for it, and in March, 1880, transmuted the same to homestead entry. In November, 1880, one Fred. Reynolds contested the same, and