MacMillan filed a motion for review of your office decision, on the ground that no right of appeal should have been allowed Johnson. On August 30, 1895, said motion was denied by your office.

The third specification of error assigned in appellant's appeal is as follows:

The Hon. Commissioner erred in ruling that the evidence submitted in this case shows the land to be subject to entry under the act of June 3, 1878.

At the time set for trial Johnson filed a motion for a commission to take the depositions of five witnesses who were not present, but if they had been present would testify that the land is chiefly valuable as agricultural land, and if cleared of its timber good paying crops, such as are ordinarily raised in California, could be raised on it, and au ordinary man could make a good living for himself and family on it. This motion was granted by the local officers.

If the case can properly be determined on the evidence introduced in this case without considering the evidence in the George C. Johnson case, it will be unnecessary to pass on or discuss the other questions presented by the appeal, for the reason that if any error was committed by your office in passing on the other points decided, it would be error without prejudice.

The receiver of the local office testified that Johnson offered to file his homestead application for the land in controversy and tendered the filing fee, which was rejected.

Johnson was called as a witness on his own behalf, and testified that he commenced the contest in good faith. That he had been over every subdivision of the land in question. That he lived in a half mile of it, and had lived there four years. That the land was valuable for agricultural purposes. That the land would be susceptible of cultivation if the timber standing upon it were removed. The register asked him: "Of the one hundred and sixty acres involved in this contest how much of it is timber now growing upon?" Thereupon the record shows that: "Counsel admits for Johnson that it is all covered with timber." He further testified that said land was covered with redwood, fir and oak timber. That the redwood and fir trees average about four feet in diameter and the oak trees about one foot in diameter.

The admission that the tract is all covered with timber is in its nature conclusive as against Johnson as to the fact admitted, and the same is true respecting his evidence as to the character of such timber and the size of the trees growing on the land.

In United States r. Budd, 144 U. S., 155-167, involving the construction of the timber and stone act of June 3, 1878, the supreme court uses this language:

Lands are not excluded from the scope of the act because in the future, by large expenditures of money and labor, they may be rendered suitable for cultivation. It is enough that at the time of the purchase they are not, in their then condition, fit therefor. The statute does not refer to the probabilities of the future, but to the facts of the present.

The rule announced in the Budd case has been followed by the Department. See Kelly v. Ogan, 15 L. D., 564; Gilmore v. Simpson, 16 L. D., 546; Robert v. Brownell, 18 L. D., 216, and Gibson v. Smith, Id., 249. In the latter case it was held that the word "timber" as used in the act of June 3, 1878, refers to such trees as are valuable for commercial purposes. The timber on the land involved testified to by Johnson is certainly valuable for commercial purposes.

For these reasons your office decision appealed from is affirmed.

MCLEAN. UNION PACIFIC RY. Co.

Motion for review of departmental decision of February 21, 1896, 22 L. D., 227, denied by Secretary Smith, June 9, 1896.

TOWN LOT-SETTLEMENT RIGHT-TRANSFEREE.

DELLA BROWN ET AL.

The possessory right acquired by the first occupant of a town lot is a proper subject of sale and transfer, and the delivery of actual possession to the purchaser, before the prior occupant leaves the lot, renders the date of his occupancy/ available to the purchaser if he continues his occupancy until the date of the townsite entry.

Secretary Smith to the Commissioner of the General Land Office, June (C. J. W.)

9, 1896.

On November 3, 1893, Della Brown filed her application before townsite board No. 8, for a deed to lot 17, block 24, Perry, Oklahoma, alleging that she was the first occupant of the lot, and that she had made valuable improvements on it. On the same day Mary Patterson filed her application for deed to this lot, alleging that she purchased the possessory right of J. P. Jones to the same, and that since said purchase she has been an occupant thereof, and had made valuable improvements.

On November 15, 1893, Alexander M. McElhinney filed his application for a deed to said lot, alleging that he took possession of it on September 16, 1893, and that he was an occupant thereof.

Perry Pringle and Alice E. Lionberger, after filing applications made default at the time of the hearing, and have ceased to be parties to the controversy.

The contest at the hearing was between Della Brown, Mary Patterson and Alexander M. McElhinney, at which hearing some forty witnesses testified, their testimony covering over three hundred typewritten pages, and forming altogether a mass of badly conflicting testimony, much of which is immaterial. That it is difficult to extract certain truth from it, is indicated by the fact that each member of the

board was led to a different conclusion by it, as to who was the first occupant of the lot. One member of said board found that Della Brown reached it first; another that Mary Patterson was first, and the third that McElhinney was the first occupant. Each of the applicants appealed from the decisions which were adverse to them, and said appeals were considered together by your office on September 3, 1895, and the conclusion reached, that a preponderance of the evidence showed that John P. Jones was the first to occupy and stake the lot; that he transferred his possession and right to Mrs. Patterson on the afternoon of September 16, 1893, and that she has continued the occupancy, has improved the lot, and is entitled to a deed for it. From this decision Alexander M. McElhinney and Della Brown have each appealed.

Della Brown insists that it was error not to find that by a preponderance of the testimony, she is shown to have been the first occupant of the lot, and McElhinney insisting that it was error not to find that he was first. Each of the appeals contains the allegation, that it was error to hold that Jones transferred, or could transfer, his occupancy and possession to Mrs. Patterson, and that she thereby got the benefit of his occupancy. The appeals therefore present two grounds of error,-one being an error of fact, and the other an error of law. These will be considered in the order stated.

After considering the theories of the evidence presented in the opinions of the different members of the board, as well as the theories presented in the arguments of counsel, in connection with the record itself, I am led to concur with your office in finding that Jones was the first person who occupied and staked the lot in question on the day of the opening, and that he transferred his possession of the same soon afterwards, on the evening of that day to Mrs. Patterson.

The remaining question is, Did the transfer of his possession to Mrs. Patterson, for a valuable consideration, permit her to tack his prior possession to her subsequent possession, so as to give her the benefit of it, as between herself and one who claims to have come upon the lot, before the transfer was effected. It is insisted in the first place that Jones had nothing to sell or transfer, and in the second place that the written evidence of the transfer on the back of Jones' booth certificate is inadmissible, because not acknowledged before a proper officer. Jones seems to have been a qualified lot occupant, and the evidence shows that he made the run from the line on the day of opening, starting with others at the proper time, and that he reached and staked this lot, while it was yet unoccupied, and that he was upon it in person with his horse and saddle when Mrs. Patterson reached it, and proposed to buy him out.

In my opinion he had initiated a settlement upon the lot, which being maintained until the time of the townsite entry embracing it, would have entitled him to a deed, and he thereby acquired such a con

tingent interest in the lot, as might lawfully be made the subject of sale or transfer. Your office properly held that it was not necessary to determine, whether the writing on the booth certificate offered to prove the transfer from Jones to Mrs. Patterson, was admissible or not, the fact being one which could as well be established by parol as by written evidence. Jones testified orally to the sale and transfer of his possession and to the receipt of the money paid him in consideration of the same.

Settlement rights under homestead laws are distinguishable from such rights where the settlement is made upon a town lot. The sale of the improvements of a prior homestead settler does not make his date of settlement available to his vendee, for the reason that the establishment of personal residence, within a prescribed time, and the maintenance of such residence for a prescribed period, are required under the homestead laws. The reason for this rule does not apply to settlement on or occupancy of town lots, under the townsite laws, nor does the rule itself. The sale of his evidences of settlement by a first occupant of a town lot, and the delivery of actual possession of such lot to the purchaser, before the first occupant leaves it, renders the date of his occupancy available to the purchaser, who continues the occupancy until the date of the townsite entry.

Your office decision is accordingly affirmed.

SOLDIER'S ADDITIONAL HOMESTEAD-SECTION 7, ACT OF MARCH 3, 1891.

WELCH v. PETRE ET AL.

The purchaser of a soldier's additional homestead right is entitled to the benefit of the confirmatory provisions of section 7, act of March 3, 1891.

Secretary Smith to the Commissioner of the General Land Office, June

On August 31, 1887, Matthew B. North made soldier's additional homestead entry, No. 3661, F. C. 1329, for the N. SE. and lot 4 Sec. 20, T. 62 N., R. 14 W., based on certificate of right issued by your office in North's name on September 12, 1878. By letter "C" of December 28, 1889, your office held said entry for cancellation, because based on military service performed in the Missouri Home Guard. Assignees of North appealed to the Department.

On April 8th, 1890, William Welch filed his application to enter the land in dispute, which was rejected by the local officers for conflict with North's entry, and Welch appealed to your office. Your office. without acting on said appeal forwarded it to this Department for consideration in connection with North's appeal, but no notice was

taken of it in the decision rendered here, as it was not covered by the appeal from your office. In said decision rendered June 16, 1892, it was held that the soldier's additional homestead entry in the name of Matthew B. North was confirmed by the 7th section of the act of March 3, 1891 (26 Stat., 1095). A motion for review of said decision was duly filed and allowed, and on June 2, 1893, on review of the same, said decision was reversed and recalled, and it was held that said entry, made in the name of said North was not covered by the confirmatory provisions of section 7, act of March 3, 1891, supra.

In promulgating the decision of June 16, 1892, your office affirmed the action of the local officers in rejecting Welch's application, but in the notice to Welch's attorney it was simply stated that action had been taken in his case by promulgating departmental decision of June 16, 1892. This was by letter "C" of your office of July 7, 1892, and seems to have led to the filing of the motion for review of departmental decision of June 16, 1892, which resulted in the reversal of the same, and the cancellation of North's entry. (16 L. D., 484.) This last decision was promulgated by your office letter "C" of July 6, 1893, in which the local officers were directed to advise the parties interested in the entry of North that thirty days from said notice would be allowed in which they might take action under the act of March 3, 1893 (27 Stat., 593), aud in a letter of same date Welch's attorneys were advised that his application could not be considered until the expiration of said thirty days.

The transferees of North filed application in the local office to purchase June 5, 1893, upon which action had been suspended until your office letter "C" of July 6, 1893, was received, when the same was allowed, and cash entry 12440 made, dated July 12, 1893. Your office letter "C" of January 24, 1894, held said entry to be regular, and that the same would be approved for patent after thirty days, which was allowed Welch and his attorney to take action.

February 24, 1894, attorneys for Welch filed in your office motion for review and reconsideration of your office decisions of July 7, 1892, and January 24, 1894, affecting said tracts. On May 4, 1894, your office reversed said decisions, and held that action taken by your office under departmental decision of June 16, 1892, including the affirmance of the action of the local officers in rejecting Welch's application, was made void and of no effect by the reversal and recalling of said decision, and left Welch's application in the status of being then before your office on the appeal of Welch from the action of the local officers in rejecting it, and further that Welch's application appearing to be regular, his rights under said application were superior to those of North's transferees. Whereupon your office held cash entry No. 12440, for cancellation as to N. SE. † Sec. 20, T. 62 N., R. 14 W., and that Welch would be allowed to make entry for the same.

On July 15, 1894, Douglas A. Petre and Robert F. Fitzgerald,