two military bounty land warrants on the S. of the SW. and Lots 3 and 4 of Sec. 33, T. 16 N., of R. 7 W., Kingfisher, Oklahoma Territory. Your judgment holds that section 21 of the act of May 2, 1890 (26 Stat., 81), does not afford the right to locate military bounty land warrants on lands in Oklahoma Territory, but that commutation can only be made under that section by the payment of $1.25 per acre in cash.

You are correct in thus holding, for the land having been purchased from the Indians, it was the policy of Congress as expressed in the eighteenth section of said act to reimburse the government for the said outlay.

Your judgment is affirmed.

PRE-EMPTION SETTLEMENT-UNSURVEYED LAND-FINAL PROOF.

HARBIN v. SKELLEY.

The administrator of a deceased pre-emptor may file declaratory statement and submit final proof for the benefit of the heirs where the settler dies prior to the survey of the land.

The case of Buxton v. Traver, 130 U. S., 232, cited and distinguished.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, February 18, 1893.

Wilburn S. Harbin has appealed from your decision of March 10, 1892, dismissing his protest against the pre-emption entry of Lawrence Skelley, administrator of the estate of William Skelley, deceased, for the S. of the SE. 4 of Sec. 9, and the SW. 4 of the SW. † and Lot 5 of Sec. 10, T. 6 S., R. 92 W., Glenwood Springs land district, Colorado. This case was submitted upon an agreed statement of facts, the material parts of which are as follows:

1. That the said William Skelley, in his lifetime and on or about the 15th day of May, 1882, settled under the pre-emption laws of the United States upon a certain tract of land which, by conforming under the rule when the survey of Twp. 6 S., R. 92 W., was made, would embrace the land in question.

2. That said settlement as made was valid and in good faith under said laws, and that at the time thereof and ever since up to the time of his death he was a qualified pre-emptor.

3. That said decedent remained in possession of the land he settled upon as aforesaid in good faith from the time of his settlement up to the time of his death.

4. That he expended in time and money in improving the said lands the sum of $800 to $1,000, in building a house, an irrigation ditch, fencing, clearing, and cultivating the said lands, but the contestant does not admit that at this time the said building and fences and other improvements are of that value.

5. That the said William Skelley departed this life at or near Canon Creek, in said Garfield county, on or about the 27th day of December, A. D. 1886, leaving no last will or testament.

6. That decedent left him surviving Thomas Skelley, a minor son, his sole and only heir at law.

11. That the final proofs as made are substantially true, except as to the time of decedent's death, which was on December 27, 1886, as above stated.

12. That at no time since the death of decedent has said heir resided upon or improved said lands or any part thereof, nor has the said administrator nor other person except this contestant.

On April 6, 1888, four days after the filing of the township plat in the local office, Lawrence Skelley, who had taken out letters of administration, filed pre-emption declaratory statement for the tract in favor of the minor heir of the settler, and made final proof upon the same, January 23, 1891, when William S. Harbin, who had filed declaratory statement for the same tract December 8, 1890, alleging settlement November 24, preceding, appeared and protested against the allowance of said proof. The decision of the local officers rejecting the proof was reversed by you, and the controlling question presented by the appeal of Harbin from your decision is, whether a pre-emption claim can be perfected in favor of the heirs of a qualified pre-emptor who settled upon unsurveyed land and died prior to survey.

Occupancy and improvement of the public land with a view to preemption, whether upon surveyed or unsurveyed land, confers no vested right, but only a preference over others, which is protected against all, save the United States. Until the land has been sold and final certificate issued, the title to the land remains unaffected, and it is subject to the same disposition and control of the government as before occupancy.

A settler upon surveyed lands, even after the filing of a declaratory statement, has no vested right in the land, but only a right to purchase it as against all others, except the United States, who has not an equal or superior right when the land is offered for sale, and this inchoate right to purchase as against the claims of others is acquired equally as well by a settler upon unsurveyed lands, the only difference being that the filing of his claim must be postponed until the survey of the land. It must also be remembered that the pre-emption right of purchase is based upon settlement and improvement, and that the filing of a declaratory statement is not a condition precedent to the right of preemption, but only a protection against subsequent settlers. A failure to file such statement will not defeat the right of purchase, because it may be filed at any time before purchase. Johnson v. Towsley, 13 Wall., 72.

Keeping in view these well established principles, let us see what rights were conferred by the acts authorizing settlement with a view to pre-emption upon unsurveyed lands.

The act of 1843 extended the pre-emption privileges to unoffered Jands, and further provided that:

Where a party entitled to claim the benefits of the pre-emption laws dies before consummating his claim, by filing in due time all the papers essential to the establishment of the same, it shall be competent for the executor or administrator of the

estate of such party, or one of his heirs, to file the necessary papers to complete the same; but the entry in such cases shall be made in favor of the heirs of the deceased pre-emptor, and a patent thereon shall cause the title to inure to such heirs, as if their names had been specially mentioned.

At that date a pre-emption claim could only be initiated by settlement on surveyed lands. This constituted the pre-emption claim referred to in the act of 1843 (Sec. 2269 Revised Statutes). Subsequently, the act of March 3, 1863 (10 Stat., 244), extended the provisions of the pre emption law of September 4, 1841, to all lands in the State of California, "whether surveyed or unsurveyed," but provided that no settlement should be authorized upon unsurveyed lands, unless made within one year from the passage of the act.

Settlement upon unsurveyed land with a view to pre-emption was authorized in the territories of New Mexico, Kansas, and Nebraska, by the act of July 22, 1854 (10 Stat., 308), and this privilege was extended to Minnesota by the act of August 4, 1854 (10 Stat., 576). The act of May 30, 1862 (12 Stat., 409), extended the privilege to California, and provided for the time within which declaratory statements should be filed, where settlement was made on unsurveyed lands.

The act of June 2, 1862 (12 Stat., 413), extended the pre-emption privilege to "all the lands belonging to the United States to which the Indian title has been or shall be extinguished," and provided that "such land shall be subject to the operation of the pre-emption act of September 4, 1841." It then provided:

That when unsurveyed lands are claimed by pre-emption, notice of the specific tracts claimed shall be filed within six months after the survey has been made in the field; and on failure to file such notice, or to pay for the tract claimed within twelve months from the filing of such notice, the parties claiming such lands shall forfeit all right thereto, provided said notices may be filed with the surveyor general, and to be noted by him on the township plats, until other arrangments have been made by law for that purpose. (12 Stat., 413.)

This provision, as incorporated in the Revised Statutes (Sec. 2266) followed the act of May 30, 1862, supra, which is as follows:

In regard to settlements which are authorized upon unsurveyed lands, the preemption claimant shall be in all cases required to file his declaratory statement within three months from the date of the receipt at the district land office of the approved plat of the township embracing such pre-emption settlement.

It will be seen from the foregoing that it was the intention of Congress to confer upon the settler on unsurveyed land the same inchoate right to complete and perfect his pre-emption claim as was given to settlers upon surveyed lands. In neither case was there a vested right, nor did the settlement in any manner affect the right of the government to control and dispose of the land as it might choose, but in both cases there was an inchoate right initiated by settlement, which, if followed up by residence and improvement and by the filing of a declaratory statement, would entitle him to the preference right as against all the world, save the United States, to purchase said land, if it should be

offered for sale. It is true, the government makes no contract with the settler upon unsurveyed lands that it will sell the land, nor does it make such a contract with the settler upon surveyed lands. In both cases the initial act of settlement must be followed by compliance with the pre-emption law up to the time of the actual purchase. The only difference, in case of a settler upon unsurveyed lands, is that he must await the pleasure of the government to make survey before he can make his purchase. The right to initiate a pre-emption claim upon the public lands in advance of the surveys was authorized because of the delay of the government in making the surveys, and the evident purpose was to confer upon such settlers all the rights that were conferred upon settlers on surveyed lands, if they were willing to await the action of the government in making the survey.

This is also made manifest by the act of March 3, 1873, providing for the adjustment of pre-emption claims, where settlement was made by two settlers upon a tract of land which, by survey, was shown to be upon the same legal subdivision, and by the several acts recognizing the right of settlers upon school sections prior to survey.

The same purpose is shown in the act of May 14, 1880, allowing the initiating of a homestead right by settlement upon the public lands in advance of the surveys, which provides:

That any settler who has settled, or who shall hereafter settle, on any of the public lands of the United States, whether surveyed or unsurveyed, with the intention of claiming the same under the homestead laws, shall be allowed the same time to file his homestead application and perfect his original entry in the United States Land Office as is now allowed to settlers under the pre-emption laws to put their claims on record, and his right shall relate back to the date of settlement, the same as if he settled under the pre-emption laws.

So in all other acts the rights of a settler upon unsurveyed lands are as fully recognized and protected as those of settlers upon sur veyed lands.

Seeing, then, that a settler upon unsurveyed lands with a view to pre-emption is by virtue of such settlement "entitled to claim the benfit of the pre-emption law," if he follows such settlement by all the necessary acts up to the date of purchase, is it not apparent that the provisions of the act of 1843 (Sec. 2269 R. S.) must be construed in pari materia with all other acts extending the pre-emption laws over the public lands of the United States, whether surveyed or unsurveyed?

If so construed, the administrator of a deceased settler upon unsurveyed lands who dies prior to survey would be entitled to file all the necessary papers, and do and perform all necessary acts essential to establishing and perfecting such pre-emption claim in favor of the heir of such settler.

It is urged that the decision of the supreme court, in the case of Buxton v. Traver (130 U. S., 232), holds that there is no right in the administrator of a settler upon unsurveyed lands to perfect the title in favor of the heirs, which is decisive of the question presented by this

appeal. While it is true that expressions are used in the opinion indicating that no right was initiated by settlement upon unsurveyed lands which could be perfected by the administrator in favor of the heirs when the settler died before survey, yet from a careful examination of the case it will be seen that the only question involved in the case was, whether the settlement of Traver created such an estate in the land as would descend to his heirs, and thus prevent Mrs. Traver from making entry of the land in her own right, free from any trust or charge. The question of priority of right that might have arisen between a preemptor and administrator of the estate, if he had offered within due time to complete the entry in favor of the heirs before the land office, was not involved.

This was a suit brought by the children of Oscar Traver, praying that Hattie L. Traver, his widow, may be charged and decreed to hold as trustee for plaintiff an undivided interest in a certain tract of land. It appears from the record in the case that Traver settled upon a tract of unsurveyed land in California in 1870, and continued to occupy it with his family and to cultivate and improve it up to 1877, when he died intestate, leaving surviving him his widow, Hattie L. Traver, the defendant, and two minor daughters, plaintiffs in the suit. It appears that the approved plat of the township was not filed in the local office until July 1, 1878, and that Hattie L. Traver filed in her own name a pre-emption declaratory statement for the tract, July 16, 1878, upon which she made final proof and received patent for the land in her own right. No attempt was made to complete the entry in favor of the heirs. At the date when Mrs. Traver filed her declaratory statement, the land was subject to entry, and she was a qualified pre-emptor. No administrator had been appointed for the estate, and she was under no legal obligation to take out letters of administration, nor did she take upon herself any trust that would impose upon her the duty of entering the land for the benefit of the heirs of Traver. There was no reason why she could not enter the land in her own right as any other qualified pre-emptor, and by her filing she acquired the pre-emptive right to purchase the land, and the title thus acquired was free from any trust or charge. This was the sole question decided by the court, whatever reason may have been given for the decision.

It was well known to Congress that the tide of emigration was far in advance of the public surveys, and that the demands of the settlers could only be satisfied by extending the pre-emption laws to all public lands of the United States, whether surveyed or unsurveyed. When we consider that the purpose of Congress in thus extending the law to unsurveyed lands, and inviting settlement upon them in advance of the public surveys, was to build up the country and establish homes, and that in response to this invitation many thousands of pioneers have settled upon such lands years in advance of the surveys, and devoted the best portion of their lives in making comfortable homes for their