From the proof it appears that Cummings settled on the tract on February 18, 1884; that he soon afterward built a small frame house, eight by sixteen feet, in which he and his family resided for a while; that he afterward erected a brick house, measuring sixteen by thirty feet, a story and a half high, with two rooms below and two above; with two outside doors, six inside doors, eight windows, matched flooring throughout, and a shingle roof; contract price $940; the small house in which he first lived is now used for a coal-house; that he also built a frame barn, sixteen by thirty-six feet; a granary sixteen by twenty feet; that he put up a wire fence (partly of two wires and partly of three) around the entire tract; that he broke eight or ten acres, and has since cultivated the same, but that the principal use he has made of the farm has been for grazing purposes. In regard to residence he testifies that "for the first two years he was not gone at all"; since then he has worked elsewhere "off and on"; that he and his family were on the claim all the winter preceding his making proof; that for the six months preceding final proof he had been absent, working (principally for his father) probably about four months; that his family were a part of the time with him at his father's and a part of the time on the claim even when he was absent; that during the absences of the family the house was locked, and the furniture left in it-consisting of bedstead and bedclothes, stove, table, five or six chairs, safe, dishes, etc.

It is clear that no failure to comply with the law as to residence, cultivation, or improvements is shown that would justify a cancellation of the entry.

The ground upon which you held the entry for cancellation is, that in his pre-emption declaratory statement, filed March 4, 1884, Cummings alleged settlement on February 18, 1883—a year and two weeks previously. Calculating from that date, you find that filing expired November 18, 1885; and that his final proof of November 15, 1886, made nearly a year afterward, could not be accepted, in view of the homestead entry of said Fox, made August 28, 1886.

The attendant circumstances strongly indicate that the date of February 18, "1883," upon which settlement is alleged in the pre-emption declaratory statement, is a clerical error for February 18, 1884. It seems much more probable that a person would file his declaratory statement within a fortnight after settlement than that he would violate the law and risk the loss of his claim by postponing such filing for a year and a fortnight thereafter. It seems more probable that he would make his final proof two days before the time prescribed by law, than that he would risk the loss of his finely improved claim by postponing it until a year (lacking two days) after the expiration of that period. It is not necessary, however, to enter into any careful investigation to determine the origin of the error in the date of settlement, as found in the declaratory statement, in case it is clearly shown to be an error.

In his final proof, the entryman states that he first made settlement

on "February 18, 1884." Both his witnesses testify that he made settlement in the "spring of 1884.”

In the case of Tipp v. Thomas (3 L. D., 102) the Department held that the law gives the entryman a right to the land from the date of his settlement, if duly exercised; and this right is not to be defeated by a discrepant allegation he may have made, when he can show that it was made by mistake." See also the case of Zinkand v. Brown (3 L. D. 380); Northern Pacific R. R. v. Stuart (11 L. D., 143); same v. Sales, (12 L. D., 299).

In the cases above cited the date as proved is earlier than that set forth in the declaratory statement; but the principle applies equally to the case at bar, wherein it is shown by sworn testimony (and not denied by the protestant,) that the settlement was actually made at a date later than that alleged in the declaratory statement.

Accepting it as a fact that the pre-emption claimant settled on the land February 18, 1884, the time prescribed by law had not expired when he made final proof, November 15, 1886.

The homestead entry of Fox, made while Cummings was residing upon and occupying the tract, and prior to the expiration of the period prescribed by law within which final proof must be made, conferred upon him no rights as against the pre-emption claimant.

Your decision is reversed. Patent will issue upon Cummings' final proof, and Fox's homestead entry will be canceled.

APPLICATION FOR SURVEY-ISLAND.

L. F. SCOTT.

An island formed in a river, after the survey and disposition of the adjoining shore lands, does not belong to the United States, and the Department, therefore, has no jurisdiction to direct its survey.

Acting Secretary Chandler to the Commissioner of the General Land Office, April 27, 1892.

I am in receipt of your letter of September 28, 1891, transmitting the application of L. F. Scott, of Howard county, Missouri, for the survey of an island, described as being in the Missouri river, "opposite sections 10, 14, and 15, township 52 N., R. 19 W., Saline Co., and opposite sections 17 and 18, T. 52 N., R. 18 W., in Chariton Co., Missouri."

It is shown that the island contains about three hundred acres of land; that the width of the channel on either side, between the island and the main shore, is one thousand feet, and the depth thereof at ordinary stages of water is about ten feet; that the island is about three feet above high water mark not subject to overflow, and the land fit for agricultural purposes. No improvements are on the island.

Notice of the applicant's intention to apply for the survey appears to have been served upon the owners of all the adjoining lands upon opposite sides of the river, and also upon the Attorney General of the 14561-VOL. 14- -28

State of Missouri, as evidenced by his acknowledgment thereof on August 26, 1891.

No protest appears to have been filed against the application, either by the State, or by other persons, and you recommend that the appli cation be allowed and the survey ordered.

The survey applied for can only be ordered when it clearly appears that the island belongs to the United States; otherwise the Department has no jurisdiction and therefore no power to direct the survey.

The photolithographic copies of the official plats of the townships 52 north, ranges 18 and 19 west, Missouri, transmitted with your letter, indicate no island in the Missouri river in the location represented on the diagram submitted with the application.

The survey of the two townships was made in the year 1820, and the same was approved by the surveyor-general August 9, 1843.

South of Sec. 17, T. 52 N., R. 18 W., is an island, called "Island No. 24," which by the survey of 1820 contained 57.81 acres, and, in a letter of June 28, 1891, R. B. Caples, attorney for applicant, says:

There is now no island at the point indicated for Island 24. What was an island when the survey was made is now a part of the main land-the slough having filled up many years since. The island we desire surveyed is a later formation, and is about half a mile from the old island 24, at the nearest point. The main channel of the Missouri river passes between the two bodies of land. They were never connected.

It appears from the above statement that the island applied to be surveyed is of late formation. It is represented as being nearly equi distant from the opposite shores of the river, which is about ten feet deep on each side of the island.

This island having formed since the survey and disposition of the adjoining shore lands, does not belong to the United States, and therefore this Department has no jurisdiction to direct its survey. Hardin v. Jordan, 140 U. S., 371; John P. Hoel, 13 L. D., 588.

Your recommendation that the island be surveyed is therefore disapproved.

TIMBER CULTURE ENTRY-FINAL PROOF-ACT OF MARCH 3, 1891.

SAMUEL C. DONALDSON.

The act of March 3, 1891, does not relieve a timber culture entryman from cultivating the quantity and character of trees specified in the act of 1878, nor repeal the provision in said act that requires at least six hundred and seventy-five living and thrifty trees to each acre at the time final proof is submitted.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, April 28, 1892.

Samuel C. Donaldson has appealed from your decision of April 1, 1891, rejecting his final proof upon timber-culture entry No. 512, made January 9, 1882, for the W. of NW. and the W. of SW. 4, Sec. 2, T. 3 S., R. 26 E., The Dalles land office, Oregon.

Your decision affirms that of the register and receiver. Claimant's testimony in his final proof, made March 21, 1890, shows that he broke ten acres in April of the first year; thirty acres in March and April of the second year, and sixty acres in March and April of the third year; that in April of the second year (1883) he planted five acres to lombardy poplar cuttings and box-elder seeds, measuring the ground with a tape line; that in the third year (1884) he planted five additional acres to box-elder poplars and walnuts-again measuring the land; that the ground was well plowed, harrowed, and cultivated, and he raised thereon fine crops of wheat. He says "some trees died out in dry summers and was filled up by replanting and are now growing;" that he had planted eleven acres in trees, and they were all in a healthy condition; that he had planted over 27,000 seeds and cuttings on the tract, and that on day proof was made there were, by actual count, 750 trees to the acre.

One of the proof witnesses (Swoggant), substantially, corroborated claimant's testimony, as to the planting and cultivation of the cuttings and seeds, but had no personal knowledge as to the number of growing trees at date of proof.

Witness, Charles E. Fell, keeper of a nursery, testified that he had no personal knowledge of the breaking done the second and third years; but swears that the land was well prepared and planted; that claimant lost by the drouth quite a number of trees in 1886 and 1887, and during those years 15,000 trees were planted (presumably in the missing places); that, in 1889, 5,000 additional trees were planted, and in 1890 1,000 more; that on the day proof was made there were 750 trees growing on each acre, all in good cultivation "at present in character from the size of a lead pencil up to three inches," height from one foot to twelve feet; that the planting and cultivation had been throughly done. Witness, Krow, knew nothing of the breaking, cultivation, or replanting, but swears eleven acres were planted to trees, and corroborated the other witnesses as to the number growing at date of proof and the size of the trees.

You rejected the proof, because

There is nothing to show that a sufficient number of the trees are of a size and age to indicate that they have been cultivated the proper length of time.

It will be seen that final years from date of entry. and one thousand in 1890. just before proof was offered. While the act of March 3, 1891 (26 Stat., 1095), changed the departmental construction then in force as to the period of cultivation and as to what shall be deemed acts of cultivation, it does not relieve the claimant from cultivating "the quantity and character" of trees mentioned in the timber-culture act of 1878, or repeal the provision which requires at least "675 living and thrifty trees to each acre" to be grow ing at the time final proof is submitted.

proof was submitted but little over eight Five thousand trees were planted in 1889, The last thousand were evidently planted

If in 1890 it was needful to plant one thousand trees to fill up missing places, occasioned by dry weather, it can not be said that such trees in March of that year were "thrifty."

While the proof shows that claimant has used diligence in his efforts to grow trees, yet unfavorable seasons have prevented such growth, and the provisions in the act of 1878, giving five years additional time, were enacted to meet just such contingencies as have happened in this

case.

I think the proof fails to show such a number of "living thrifty" trees as justifies its acceptance. He still has about five years from date of proof to show full compliance with law.

The judgment appealed from is accordingly affirmed.

TIMBER LAND-APPLICATION-PRELIMINARY AFFIDAVIT.
GRACE v. CARPENTER.

The prior personal inspection of land required of an applicant under the act of June 3, 1878, does not necessarily require said applicant to actually pass over the land in question.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, April 29, 1892.

I have considered the appeal of A. O. Carpenter from your decision of August 23, 1890, awarding to Frank P. Grace the S. of SW. 1, Sec14, and E. of NW. 1, Sec. 23, T. 16 N., R. 15 W., San Francisco land district, California.

It appears that Grace and Carpenter filed applications on the same day (March 1, 1888,) to enter the above described tracts under the tim ber law, filing therewith the usual sworn statement as to the character of the land, etc. In point of time the application of Grace was received some two or three hours before that of Carpenter and both parties gave notice of intention to submit proof in support of their claims before the local officers.

May 23, 1888, the day set for the hearing to decide which applicant had the better right, Grace and Carpenter both appeared with counsel and witnesses and the testimony submitted was taken. The local offi

cers decided in favor of the contestant; thereupon the defendant appealed and you sustained the decision below.

Defendant again appealed, alleging in substance, that Grace did not make personal examination of the land as required and therefore he was not competent to make said timber application.

The fact that the land in question is uninhabited; that it contains no mining, or other improvements, or known minerals, and that the tracts are timber land chiefly valuable as such and unfit for agricultural pur poses, is satisfactorily established and is also conceded by both parties