17, 1898, involving lots 1, 2, 3 and 4 of Sec. 31, and the NW. of the NW. and the SW. of the SW. of Sec. 32, T. 5 N., R. 10 W., Oregon City, Oregon, land district.

The record shows that said land was formerly embraced in the preemption cash entry of one Joseph Walsh, which remained of record until October 15, 1894, when it was canceled by your office pursuant to departmental decision of July 2, 1894 (not reported).

October 5, 1894, Warren filed his homestead application for the land, which was rejected by the local officers for conflict with Walsh's entry, of which Warren was notified but took no appeal.

On the day Walsh's entry was canceled, Robert Gibson filed his homestead application for lots 1, 2, 3, 4 and the NW. of the NW. 1 and the SW. of the SW. of Sec. 32, T. 5 N., R. 10 W., which was rejected by the local officers for conflict with Walsh's entry; aud on October 31, 1894, he filed an affidavit stating that the correct description of the land he sought to enter was lots 1, 2, 3 and 4 of Sec. 31, and the NW. of the NW. and the SW. of the SW. of Sec. 32, T. 5 N., R. 10 W., and asked to amend his application so as to give the correct description of the land claimed, and on the same day he appealed from the decision of the register and receiver rejecting his homestead application.

November 13, 1894, Warren filed his second homestead application, which was rejected for conflict with the homestead application of Gibson, then pending on appeal to your office. With said application Warren filed his corroborated affidavit alleging among other things that he made settlement on said land on October 11, 1894, and had made valuable improvements thereon; that Gibson had never made settlement upon the land; and asked for a hearing upon his charges. December 24, 1894, Warren again applied to make homestead entry of the land, and his application was rejected.

December 28, 1894, your office rendered its decision on Gibson's appeal and directed the local officers to allow his application to enter upon his amending the same as he requested, "subject to any valid adverse claim."

February 11, 1895, Warren filed an amended affidavit covering the same facts set forth in his former affidavit and in addition alleging that Gibson, Walsh and Logan "have conspired together and are now attempting to secure title to said land for the purpose of speculation, and his, Robert Gibson's, attempted entry is fraudulent."

February 12, 1895, Gibson was allowed to make homestead entry for the land after amending his application as permitted by your office.

A hearing on Warren's charges was ordered and had before the local officers. They recommended the cancellation of Gibson's entry. On his appeal, your office, on December 26, 1896, modified the judgment of the register and receiver by holding that Gibson's entry should remain intact except as to said lots 1 and 2, to which Warren was adjudged to have the better right.

Warren filed a motion for rehearing, and Gibson filed an appeal and thereafter withdrew it and asked for review of your office decision so far as it awarded said lots 1 and 2 to Warren.

May 15, 1897, your office revoked its decision of December 26, 1896, and returned the record in the case to the register and receiver with the direction that they order a further hearing after due notice to the interested parties.

Such hearing was had, at which the parties appeared and submitted evidence. The register and receiver recommended the cancellation of Gibson's entry and that Warren be allowed to enter all of the land.

Gibson appealed, and on February 17, 1898, your office held his entry subject to Warren's superior right as to lots 1, 2, 3 and 4, and should he make final proof the same to be referred to the board of equitable adjudication, the two forty-acre tracts remaining to him being noncontiguous.

Gibson appeals from so much of the decision as awards said lots to Warren; and Warren appeals from so much of it as awards the two forties to Gibson.

The lots in question f on the Pacific ocean on the west, one and two being in the northeast quarter and three and four in the southeast quarter of fractional section thirty one. The other land in controversy is situated in the northwest and the southwest quarters of section thirty-two and adjoins said lots one and four, respectively, on the east. The record and the evidence taken at both of the hearings have been examined.

The evidence clearly shows that Warren commenced to build a dwelling house upon lot three on the 11th day of October, 1894, and continued its construction until it was completed, and established his actual residence therein; that during the 11th, 12th and 13th of said month he caused some slashing to be done and some brush to be cut and piled up. beginning on lot three close to where he was building his house and thence extending north upon lot two to a certain redwood log out of which he expected to make shingles with which to cover his house, but the log was afterwards found to be unsuitable for that purpose.

The evidence also shows that on October 12, 1894, Warren posted up notices on lots one and four, reciting that he made settlement on all the land involved in this case October 11, 1894, for the purpose of holding the same as a homestead. The notice on lot one was nailed on an old shanty built by a former entryman, the one on lot 4 about fifty feet from the beach by nailing it to a tree near a pathway leading from the beach in an easterly direction across said lot. It appears that these notices could have been seen on the 15th of October, 1894, by persons passing by the places where they were posted.

The evidence fails to show that at the time Gibson applied to enter the land he had actual notice of Warren's claim.

While Gibson's entry was not actually made until February 1895, his

rights, whatever they may be, depend solely upon his entry and relate back to and date from October 15, 1894, the time he filed in the local office his application to enter.

Warren's claim to the land in controversy is predicated upon his settlement and improvements upon it which were initiated October 11, 1894, and the posting of the notices on lots 1 and 4 on October 12th of that year. At the time Warren's settlement claim was initiated the land was covered by Walsh's entry and he could acquire no right by such settlement as against the entryman or the government so long as the entry remained of record. The Walsh entry was canceled on October 15, 1894, and whatever right Warren had as a settler attached immediately as against Gibson's claim under his application to enter. See McMichael v. Murphy et al. (20 L. D., 147); Pool r. Moloughney (11 L. D., 197).

It is well settled that the notice given by a settlement claim as defined by occupancy and improvements is limited to the technical quarter section on which such acts are performed. See L. R. Hall (5 L. D., 141); Pooler v. Johnston (13 L. D., 134); Shearer v. Rhone (Id. 480); Staples v. Richardson (on review) (16 L. D., 248); Kenny et al. v. Johnson et al. (25 L. D., 394).

Warren's house and improvements were on lots 2 and 3, which were embraced in the northeast and southwest quarters of fractional section 31 as shown by the public surveys, and under these circumstances it would follow, under the rule announced in these cases, that notice given by his settlement claim would not extend to the other portions of the respective quarters upon which no settlement or improvements were made, but notice of his claim should be limited to the particular lots upon which his settlement and improvements were made. It is therefore held that Warren's settlement and improvements on lots 2 and 3 operated as notice to Gibson of Warren's claim as to said lots, but such settlement and improvements were not notice of his claim to other portions of said quarter section.

Warren posted notices defining the extent of his claim on lots 1 and 4 but made no improvements thereon; these notices were posted in places where they could have been seen, and under well settled rulings they were sufficient to protect his claim as against subsequent settlers, applicants to enter or entrymen. See Driscoll et al. v. Doherty et al. (25 L. D., 420); Smith v. Johnson et al. (17 L. D., 454); Jordan v. Smith (26 L. D., 527).

Warren made no improvements on the land in section 32, neither did he post any notice thereon defining the extent of his claim. In the notices put up on lots 1 and 4 he described the two forty acre tracts in said section but it does not appear that either their posting or contents were known to Gibson before or at the time he filed his application to enter said tracts. Under these circumstances, it is clear that Warren by posting said notices secured no right as against Gibson's application to enter said forty acre tracts in section 32.

After a careful examination of the record and evidence and considering all the questions presented by the respective appeals, the Department concurs in the conclusion reached by your office in the decision appealed from, and it is accordingly affirmed.

BAYLISS v. BROOK.

Motion for review of departmental decision of June 14, 1899, 28 L. D., 503, denied by Secretary Hitchcock, September 26, 1899.

SETTLEMENT RIGHT-INTERVENING ENTRY.

DE LONG v. FROST.

Priority of settlement, as against an intervening entry, should be asserted by contest initiated within three months after settlement.

Secretary Hitchcock to the Commissioner of the General Land Office, Sep(F. L. C.) tember 26, 1899.

(G. C. R.)

This case involves the NE. of Sec. 18, T. 163 N., R. 56 W., Grand Forks, North Dakota, upon which Edward J. Frost made homestead entry April 8, 1889.

It appears from the recital of the register and receiver that on March 5, 1895, or more than five years and ten months after said entry, Isaac E. De Long filed his affidavit of contest, alleging that Frost had abandoned the land for the past six months or more and has wholly failed to reside thereon as required by law, and that said Frost made an

illegal homestead entry for the land, for the reason that the land was at the date of said entry in the actual and peaceable possession of said contestant, who had settled thereon under the provisions of the homestead law and did within the time provided in said homestead law present at the local land office, through the clerk of the district court, who in this matter was acting as an officer of the land department, his homestead application for the northern half of said land to be placed of record.

This contest affidavit was rejected by the register and receiver because the same was insufficient; also because the question raised "is res adjudicata." From that action De Long appealed; but in transmitting the appeal the local officers forwarded "an amended and supplemental affidavit," sworn to by De Long April 13, 1895. In the amended affidavit De Long alleged, substantially, that Frost had abandoned the land for a period of more than six months prior to the expiration of five years from date of entry.

It appears that your office, on June 29, 1895, sustained the action of the register and receiver in rejecting the original application to

contest, but ordered a hearing on said amended contest affidavit. The hearing was duly had, and the register and receiver recommended that the contest be dismissed. On appeal, your office, by decision of April 5, 1898, affirmed that action. A further appeal brings the case here.

At the hearing the register and receiver refused to allow any testimony as to when contestant settled on the land, or whether contestant was the prior settler. Contestant was required to fix a date as the beginning of the alleged abandonment. October 1, 1893, was so fixed, the alleged abandonment running to April 8, 1894. Considerable testimony was given tending to show that the entryman did not live on the land during that period. The testimony, however, was of a negative character and when considered with other testimony to the effect that the entryman was frequently seen in and about his house on the land during that period, it can not be held that the allegation was established.

Among other things, De Long contends that complete justice can not be had in this case until a hearing is ordered on the question of his alleged prior settlement on the land and of his application made therefor within ninety days from date of settlement.

Counsel states that,

on May 30, 1889, less than ninety days after his settlement, he De Long made homestead application for the tract of land through the clerk of the district court, which application was sent by said clerk of the court to the local officers, and said application was erroneously returned to said clerk of the court without any notice to said De Long as to what his rights were in the premises; that said clerk was simply acting in his capacity as clerk of the court and in no way was he acting as attorney for said De Long; that subsequently the local officers held as a matter of fact, that De Long had not presented his Hd. application within ninety days from date of settlement; that said holding was utterly false and contrary to the facts.

It is insisted that De Long did present his application in due time, that he thereafter lived upon and improved the land for more than six years, has asserted his claim in every possible way and has been deprived of his rights thereto "through the mistake, ignorance, wrongdoing and prejudice of the local officers," and the "harsh" and technical rulings of the land department, rendered without a full and complete knowledge of the facts in the case.

If it were admitted that De Long did present his application to enter the land within ninety days from date of settlement, his application could not have been properly accepted, because the land had then been entered by Frost. An appeal would not have aided him.

If he were the prior settler on the land, his remedy was to file a contest within three months from date of settlement (Rumbley v. Causey, 16 L. D., 266; Mills v. Daly, 17 L. D., 345), alleging such prior settlement, and ask for a hearing. He failed, however, to take this course, and thus forfeited all his rights under his alleged prior settlement. The decision appealed from is affirmed.