tensive, many quasi judicial in character, intimately connected with the proper administration of justice; others executive in their nature, charged with the duty of guarding the integrity of the elective franchise where Congress has power to legislate touching the same. Appointed by the Federal authority, discharging duties relating almost alone to the Federal Government, with powers derived alone from that source, paid by it for their public official acts, they are, in my opinion, clearly officers of the United States and within the inhibitions of section 5498 of the Revised Statutes.

The fact that the applicant is a commissioner of the supreme court of this district does not alter the case, inasmuch as said court is clothed with the powers of a United States circuit court.

Entertaining these views, I do not deem it necessary to determine how far the holding of the offices of notary public or examiner in chancery would affect your application, but because you are a United States commissioner refuse the application.

PRE-EMPTION ENTRY-REQUIREMENTS OF THE LAW.

KURTZ v. HOLT.

It is immaterial whether the intending pre-emptor purchases improvements already upon the land or causes the same to be made after settlement and filing.

It is not essential that the pre-emptor should in person cultivate his claim. In this case the value of the improvements, preparations for a permanent home, and residence after final proof are held as evidence of good faith, and therefore excuse temporary absences from the land.

Secretary Lamar to Commissioner Sparks, July 22, 1885.

I have considered the case of William B. Kurtz v. Elizabeth J. Holt, as presented by the appeal of Mrs. Holt from the decision of your office of November 24, 1884, holding for cancellation her pre-emption cash entry for the S. of the SE. and SE. 1 of SW. 1 of Sec. 23, and the NE. of NW. of Sec. 26, T. 3 N., R. 2 E., B. P. M., Boise City, Idaho.

May 6, 1882, Mrs. Holt filed declaratory statement alleging settlement on the same day. November 8, 1882, she made cash entry after due notice, and final certificate issued thereon. April 11, 1883, Kurtz filed an affidavit as the basis for contesting said entry, setting forth in substance failure to improve the claim and reside thereon as required by law. A hearing was thereupon ordered and the testimony therein submitted August 16, 1883.

The evidence shows the following state of facts: Mrs. Holt purchased the improvements placed on this land by one Rolls, a former settler, paying therefor the sum of one thousand dollars. Said improvements consisted of a house with two rooms, a barn twelve by fourteen feet, another building ten by twelve feet, one mile of fencing, twenty acres

under cultivation, eighty acres cleared of sage brush, and a good well. After the purchase Mrs. Holt filed her declaratory statement, and between the date of her filing and that of final proof she procured the cultivation of three acres in corn, built a small chicken-house, and made some slight repairs on the barn. As to residence, it appears that the pre-emptor, who is a widow, fifty-six years of age, and a milliner by occupation, was, at the time she made her filing, engaged in her business at Boise City, about three miles from the land. She placed in the house bedding and household furniture sufficient for occupancy, and swears that she took up her permanent residence on the land the day after filing, and was there as often thereafter as possible during the summer, staying in the house, however, but four nights, and eating meals there but eight or nine times. Was there some whole days and parts of days. During this time she was carrying on her business in Boise City, in a rented building, boarding with her brother and paying therefor, but having no home except that upon the land, which she testifies she had purchased as a permanent home for herself. She had no family and no way of making a subsistence other than by her trade, and at the time of the hearing was residing on the land. This recital of facts is in substance the testimony of Mrs. Holt, but it is uncontradicted upon any material point, and upon this condition of facts it is urged that the entry should be canceled. In addition to the foregoing, however, Mrs. Holt testifies that prior to final proof she called upon the receiver of the local office and submitted to him a full statement of the facts pertaining to her residence, and requested information as to whether it was sufficient under the law, and was told by him that she could prove up on showing her good faith in the matter. One of her witnesses on final proof testified at the hearing that the final proof was made before the receiver, in the absence of the register; that when the matter of residence was reached a question arose as between the witness and the claimant whether under the circumstances he could truthfully testify that her residence had been continuous. The matter was thereupon discussed in the presence and hearing of the receiver, the officer taking no part in the conversation, though in the opinion of the witness the receiver was at that time fully advised of the true nature of the residence made by Mrs. Holt. Attached to the "opinion" of the local officers appears a statement of the receiver to the effect that the testimony of Mrs. Holt and her witness, so far as it charges him with full notice and knowledge of the character of Mrs. Holt's residence, is untrue, though he states that she did apply to him for information as to the time when she could make proof and payment.

Under the pre-emption law it is immaterial whether the settler, in pursuit of title, purchases substantial improvements already existing upon the land or causes the same to be made after settlement and filing. So that the improvements belong to the intending pre-emptor the law is satisfied. Gaberel v. Guerne (2 C. L. L., 598). Hence this contest

must fall so far as it involves any question as to the improvements of the pre-emptor.

In the matter of cultivation it is also immaterial whether the pre emptor in person tills the soil or procures it to be done by others, good faith being as well evidenced by one act as by the other; it therefore is apparent that the cultivation shown by Mrs. Holt is satisfactory.

But it is urged that the residence made by the pre-emptor is so far short of the requirements of the law that the entry must be canceled, notwithstanding her compliance in the matters of improvement and cultivation is admitted. It must be remembered that the pre-emption law is silent as to the period of inhabitancy to be required under its provisions, and that the term of six months is only fixed in order that good faith in this respect on the part of the pre-emptor may thus be assured. Uninterrupted presence on the claim even during that term is not, however, required, absences being excused when consistent with good faith on the part of the settler. In this case the amount expended for improvements, the preparation made for a permanent home, and residence following final proof, necessarily lead to a conclusion favorable to the entire good faith of the pre-emptor, and no interest of the Government can now be subserved by setting aside the entry. The decision of your predecessor is therefore reversed and the contest dismissed.

TIMBER TRESPASS.

WILLIAM GRANT ET AL.

The United States will not permit trespass upon unearned odd-numbered sections lying within the limits of a railroad grant.

Secretary Lamar to Attorney General Garland, July 22, 1885. Accompanying this will be found copy of letter, dated June 16, 1885, from the Commissioner of the General Land Office, together with other documents, therein enumerated, relative to trespasses alleged against William Grant and others, in cutting and removing timber from certain-described lan is belonging to the United States, in Washington Territory, and within the primary limits of the grant to the Northern Pacific Railroad Company.

From the papers in the case it appears that during the summer of 1878 a sawmill was erected on the NE of the NE of Sec. 29, T. 3 N., R. 8 E., Washington Territory, by William Grant, of The Dalles, Oregon, and John H. Stone and Henry S. Davis, both of Ainsworth, Washington Territory, under the firm-name of "Grant & Stone." The site of the mill was leased for ten years, by said Grant, Stone, and Davis, from one Albert S. Estabrook, who claimed it under pre-emption declaratory statement filed by him October 24, 1878, but who has never yet made final proof.

About September, 1878, said sawmill owners proceeded to cut timber on parts of sections 8, 17, 18, 20, 21 and 29; and operations have been continued to the present time, either by the members of said firm or by the following named persons in their employ or interest, to wit: Arthur C. Phelps, Levi Estis, George Broughton, R. L. Creaves, James C. Forbes, Hugh B. Bosthwick, and Walter F. Frain-as set forth in the several reports herewith transmitted.

The amount of timber estimated to have been cut upon the sections named is 14,346,812 feet, board measure; whereof 5,297,112 feet was cut upon the even sections, and 9,549,700 feet upon the odd sections. In addition to the above, 1500 cords of wood were cut (in 1879) from said Sec. 20, by said Grant, Stone and Davis.

The timber, after manufacture into lumber at the mill of Grant & Stone, was transported in a flume to the Columbia river, and shipped to various points. The major portion of it was sold to the Northern Pacific Railroad Company or the Oregon Railroad & Navigation Company for the construction and repair of their roads; a smaller portion was disposed of in the general market.

As to the lands in the even sections above named: Upon a portion of them declaratory pre-emption statements were filed, but the preemptors have never improved or occupied said tracts except for logging purposes. Upon a portion of them homestead entries have been made, but the entries have been canceled; or (in one case) the entryman has left his land and his present whereabouts is unknown; or (in one case) the entryman failed to present proof of being a citizen.

As to the lands in the odd sections above named: On the 26th of February, 1883, my predecessor, in requesting the special agents of this Department to carefully separate the cases of trespass upon odd sections within the granted limits of railroads from those committed upon even sections, expressed the opinion that "there can be no propriety in the United States' prosecuting cases of trespass on odd sections of land within railroad limits, whether earned or unearned (1 L. D., 626). This ruling was based upon the decision of the Supreme Court in the case of Schulenberg v. Harriman (21 Wall., 44).

Judge Deady, of the U. S. District Court for Oregon, however, in the case of the United States v. Childers, (12 Federal Reporter, 586June 27, 1882,) points out the fact that the language of the grant to which the Schulenberg-Harriman decision referred was widely different from that of the grant to the Northern Pacific Railroad, and holds that in the latter case Congress

"Did not intend to part with the title to the lands until and only so fast as they were earned by the completion of the work. The legal title to the unearned portions of this grant-the odd numbered sections opposite to which the road has not been completed and acceptedis still in the United States."

While this Department does not consider itself necessarily bound by the decisions of the several U. S. Circuit and District Courts, it may

yet be permitted to remark that in its opinion the language quoted above conveys a correct interpretation of the statute bearing upon the case at bar.

My predecessor's opinion (cited supra) concludes thus:

"There is no legal reason why any railroad company, when its grant of lands by Congress is a present one, can not institute proceedings against a trespasser on its lands, since no valid objection could be raised on the trial of such case on account of want of title in the company, inasmuch as title to the company can be questioned only by the United States."

The trouble with this conclusion is that in many cases the railroad company, being the principal beneficiary by the trespass, is therefore in no way interested in instituting legal proceedings against the trespasser, but on the contrary deeply interested that such proceedings shall not be instituted. Of this condition of affairs the case at bar is a conspicuous example. In this case it is noticeable further: although the lands trespassed upon were within the granted limits upon the map of general route, yet upon the map of definite location they fall outside of both granted and indemnity limits, and will therefore finally of necessity revert to the United States, with their value destroyed or largely dimin ished by the loss of the timber of which they have been denuded for the benefit of the railroad companies.

This Department would therefore respectfully request, in accordance with the recommendation of the Commissioner, that you direct the U. S. Attorney for the proper district to institute criminal proceedings against the said William Grant (the principal owner of the sawmill and the master-spirit among the trespassers); and civil suit against said Grant and the other parties named, jointly, (including the Northern Pacific Railroad Company and the Oregon Railroad and Navigation Company,) to recover the value, after manufacture, of the whole amount of timber reported cut upon both the even and the odd sections hereinbefore described; also civil suit against Grant, Stone and Davis to recover the full market value of the 1500 cords of wood cut and removed therefrom by them.

CHARACTER OF LAND.

ROBERTS v. JEPSON.

Proof that neighboring lands contain oil is not sufficient to defeat an entry of land returned as agricultural.

Secretary Lamar to Commissioner Sparks July 22, 1885.

I have considered the case of Westley Roberts v. Thomas W. Jepson, involving the status of Lots 4 and 5, and the W. of the SW. of Sec. 12, T. 4 N., R. 20 W., S. B. M., Los Angeles district, California, as presented by the appeal of Roberts from the decision of your office dated August 15, 1884, holding that said tracts are agricultural in character,