In Bunger v. Dawes (9 L. D., 329), an entry of Kansas Indian trust land was held to be a "pre-emption" within the meaning of said act, and the successful contestant entitled to a preference right of entry. In McGee v. Ortley (14 L. D., 523) a location of Sioux half-breed scrip was held to be a "pre-emption," and the successful contestant entitled to a preference right of entry. The said act is a remedial and beneficial statute, and such statutes "have always been taken and expounded by equity; ultra the strict letter, but not, it is well and wisely said, contra the letter." (Dwarris on Stat., 623).

The different land laws which provide for the purchase of public lands by individuals form a general land law system and should be construed in pari materia so far as can be done consistently, and the rulings of the Department in relation thereto should be harmonious and uniform so far as possible. The purchase by a mineral claimant of public land under the mineral laws is a "pre emption " in as true a sense as other forms of purchase which have been so held in the cases above cited. The act of May 14, 1880, rewards one who has successfully contested an entry of the class therein specified, by giving him a preference right to enter within a specified period. This is the benefit conferred by the act, and in equity it applies to Vaughn in this case, who seeks to pre-empt the land in question, and has successfully shown its agricultural character in his contest.

On the one hand the appellant slept upon her rights, if she had any, from the date of the partial cancellation of her entry in 1882 until October 11, 1888, or nearly six years. On the other hand, Vaughn has used due diligence in prosecuting his contest and settling upon and improv ing the land, and his application is prior in time to hers. The law does not favor the negligent, but the diligent. The excuse made for the appellant's delay, that she could not have succeeded if she had brought her application, earlier because the miners would have sworn her out of court, can hardly be accepted in the absence of any attempt on her part to prove its truth by a contest, and in view of the fact that Vaughn's attempt was successful in his contest.

The pre-emption laws have been repealed by the act of March 3, 1891, (26 Stat., 1095). The tender by Vaughn of a declaratory statement before the passage of the act, in connection with his settlement, residence and improvements upon said land, constituted a "bona fide claim lawfully initiated before the passage" of said act, within the meaning of the fourth section thereof, and said claim "may be perfected upon due compliance with law," as if said act had not been passed.

Your judgment is affirmed.

CONFLICTING SETTLEMENT CLAIMS-NOTICE.

MILES v. WALLER.

A claim based on settlement upon, and improvement of a tract, with residence upon a contiguous tract relates back to the date when residence is established upon said contiguous tract.

The notice of claim given by settlement and improvements extends only to the quarter section upon which they are situated as defined by the public surveys. A written notice of a settlement claim is of no validity in the absence of the settlement and residence required by law.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 6, 1893.

I have considered the case arising upon the appeal of Frank M. Miles from your decision of March 3, 1892, in the case of said Miles against John Waller, involving the NW. of the SW. of Sec. 28, T. 34 N., R. 37 E., Spokane land district Washington.

Two surveys of the township were made. The first was never accepted; the second was made in June, 1888, approved by the surveyorgeneral, and accepted by you, some time within a year thereafter the exact date not being shown by any of the records transmitted with the

case.

4

When the land office opened, on the morning of June 23, 1890, both parties named were in waiting to make a homestead entry-Miles of the NE. of the NE. of Sec. 32, the E. of the SE. of Sec. 29, and the NW. of the SW. of Sec. 28, said township and range, and Waller of the SW. of the NW. 1, and the N. of the SW. of Sec. 28. It will be seen that the two conflict as to the NW. of the SW. † of Sec. 28.

A hearing to determine their respective rights was held on July 8, 1890.

The local officers decided in favor of Waller. Miles appealed to your office, and you affirmed their decision. Miles now appeals to the Department.

The question is complicated by certain transaction between the defendant, Waller, and one Floyd Lawson. Both were at one time. (prior to the survey of the township) desirous of obtaining the SW. of the NW. of Sec. 28 (the forty-acre tract lying directly north of the one in controversy). Being on amicable terms, they discussed the matter of making joint entry of the same when it should become subject to entry, but learned that there was no provision of law that would permit such joint entry. Thereupon, Lawson withdrew all claim to said tract. Waller moved thereto from the forty-acre tract next west of it (the SE. of the NE. of Sec. 29); and Lawson-when he made entry, after survey-included the tract which Waller had thus moved from and abandoned.

Counsel for contestant alleges that your decision was in error

In holding that Lawson's legal settlement ever extended to the forty acres in dispute;

In holding that Lawson did or could give his possession and settlement to said tract to Waller;

In holding by implication that Waller's alleged rights in and to the forty in dispute related back to the alleged settlement thereon by Lawson in 1883.

Your letter, in its statement of the case, uses the expression that Lawson "gave his possession and settlement of said tract to Waller;" but it is not clear that your decision is based upon that assertion. It will be conceded that Waller's right to the tract, if any, must be founded upon and date from his own settlement thereon.

He further alleges that you were in error

In not holding that the attempt of Lawson and Waller to hold a forty-acre tract of surveyed land jointly, upon which neither had his residence, was illegal, and could not serve to make the forty in conflict contiguous to the remainder of Waller's claim whereon were his residence and improvements.

The parties named learned, upon inquiry of other persons better versed than themselves in land law, that such joint entry would be illegal, and made no attempt to carry their project into effect. It will be conceded that this merely contemplated joint entry and could not make the forty in conflict contiguous to the remainder of Waller's claim. Nor do I understand that your decision so held.

Counsel claims that you were in error

In not holding that Waller's original settlement claim was made up of non-contiguous tracts, the forty in dispute being isolated from the other tracts upon which his residence, cultivation and improvements were made.

It will be conceded that Waller's right to this forty-acre tract can not relate back of the date when the remainder of his claim upon which his residence and improvements were located, became contiguous thereto.

Admitting the positions assumed by the contestant, as above set forth, to be substantially correct, it remains to be decided which was the prior settler on the forty-acre tract in controversy.

According to the contestant's testimony, the defendant abandoned the SE. of the NE. of Sec. 29 (which was a part of his original claim), and removed to the SW. of the NW. of Sec. 28 (which was not a part of his original claim), on April 20, 1890. The forty-acres in controversy was contiguous to this, and from that date forward was subject to settlement and entry by him in connection with the remainder of his claim-unless some one had initiated a claim prior to that date, or afterward established a right which related back to a period prior to that time.

For years before April 20, 1890, the defendant had been improving the tract in controversy; and these improvements were upon it at the date of his removal to the tract north of and adjacent to it, and continued until the date of simultaneous application to enter. Defendant

testifies that he broke four acres of the tract in contest in the fall of 1886; that he put it into crop in the spring of 1887; that he plowed and cropped more in subsequent years; that he fenced in nearly the whole of it. This is corroborated by witnesses Overman, Lawson and Rice.

It is clear that his claim to the tract in controversy, based upon settlement and improvement of the same, with residence upon a contiguous forty-acre tract, could relate back to the date of his establishment of residence upon such contiguous tract—April 20, 1890,-unless some prior claim had attached.

The next question to be considered is, whether the contestant had initiated any claim to the tract in controversy prior to April 20, 1890. The contestant, Miles, originally claimed as his homestead the NE. of the NE. of Sec. 32, the E. of the SE. of Sec. 29, and the NW. of the SE. of Sec. 29. Upon the last mentioned forty-acre tract he built a house in 1883, and resided therein until after the second survey (in 1888). He then concluded to drop the forty upon which he had been residing, and claim the forty in contest-upon which the defendant had been for some years cultivating in part, and improving, as hereinbefore set forth. But he did not settle upon or in any manner improve the tract. At the date of his application to enter-indeed, at the date of the hearing-he had no improvements upon it, unless it were a small amount of fencing. He claims to have enclosed a piece in the southwest corner, "from one and one-half to two rods square." The United States deputy surveyor, however, does not think the fence comes any further than to the line of the disputed tract. If any of the fence is on the land, it is the result of the fact that the new survey does not coincide precisely with the old, and so the fence that contest ant intended to build on the line upon resurvey proves to be a rod or two over it, upon land unclaimed by him at the time be built it. A fence put up by mistake on what was supposed by all concerned to be the line between two claims would certainly not be such an "improvement" as would give its builder a right to the land on which it has been mistakenly built.

It appears, therefore, that on June 23, 1890, when the two parties presented their applications to enter the tract in controversy, Waller had improved and cultivated it, and had been residing upon the adjacent forty-acre tract, which he included as a part of his entry, for more than two months, while Miles had never cultivated any part of it, and had no improvements upon it, unless one corner of his fencing had been (unintentionally and by mistake) built so as to include a square rod or two of one corner of it; while his residence, cultivation, and improvements, were not only on another quarter-section, but another section.

It may be added that the notice of claim given by settlement and improvements, extends only to the quarter-section upon which they are situated, as defined by the public surveys. L. R. Hall (5 L. D., 141);

Reynolds v. Cole (ib., 555) Union Pac. R. R. Co. v. Simmons (6 L. D., 172); Hemsworth v. Holland (7 L. D., 76); Pooler v. Johnson (13 L. D., 134); Shearer v. Rhone (ib., 480).

Immediately after the (second) survey Miles sent a written notice to Waller, informing him that he claimed the NW. of the SW. of Sec. 28, T.34 N., R. 37 E.,-the tract in controversy. But such written notification is of no validity in the absence of the settlement and residence required by law.

Your judgment in favor of Waller is sustained, and your decision that his entry be held intact is affirmed.

INDIAN OCCUPANCY-SETTLEMENT RIGHT-ALLOTMENT.

LONG JIM v. ROBINSON ET AL. AND CULTUS JIM ET AL. v. CHAPPELLE ET AL.

Lands actually included within Indian occupancy are not subject to settlement; and a general order opening an Indian reservation does not operate to confer upon claimants under the settlement laws any right to settle upon, or enter, lands that are excluded from such appropriation by reason of Indian occupancy. The provision contained in the agreement of July 7, 1883, for the protection of "all other Indians living on the Columbia reservation" extends to Indians then living. on said reservation but not represented in the negotiation of said agreement; and the failure of such Indians to elect within one year whether they would stay on said reservation, or remove to the Colville reservation, as provided in the act of Congress ratifying said agreement, will not defeat their right to receive allotments in accordance with said agreement.

Secretary Noble to the Commissioner of the General Land Office, January 6, 1893.

On the 9th day of July, 1892, you considered the above entitled cases on appeal of the Indians, and as the facts and legal questions involved are so nearly alike in them, you treated them as one case.

The record shows that on the 28th day of November, 1890, Chelan Bob (an Indian) filed in the local land office at Waterville, Washington, his application for the NW. 1, N. SW. 1, and lots 1, 2 and 3, of Sec. 20, T. 27 N., R. 23 E., W. M., containing 337.60 acres.

On December 1, 1890, Cultus Jim (an Indian) filed in said local land office, his application for the SE. SE. 1, of Sec. 19, the S. SW. and lot 4, of Sec. 20, and lots 2 and 3 of Sec. 29 of the same township and range, containing 209.40 acres.

On the same day Long Jim filed in said office his application for the NE. 1, NE. SE. 4, and lot 1, of Sec. 11, W., Sec. 12, lot 1, of Sec. 14 and lots 1 and 2 of Sec. 13, T. 27 N., R. 22 E., W. M., containing 525.30

acres.

All of the land filed for by Long Jim, except eighty acres, all filed