The record shows that Miss Drucker made pre-emption filing for the tract May 18, 1882, alleging settlement on the 1st of the same month. On the 15th of November, 1882, Chamberlin filed application under the provisions of the act of June 3, 1878, (20 Stat., 89,) to purchase said tract as timber land. On the 27th of January, 1883, a summons issued from the local office to be served upon Drucker, calling upon her to appear before the register and receiver on the 5th of March, 1883, and show cause, if any there be, why Chamberlin should not be allowed to enter the land in question. A copy of said summons was delivered to Miss Drucker January 30, 1883.

On the day named therein both parties appeared in person and by counsel, and the hearing proceeded on the question of the pre-emption applicant's good faith and compliance with the law in the matter of settlement, inhabitancy and improvement. Upon the evidence adduced, the register and receiver rendered their joint opinion "that Miss Drucker had not made a legal settlement on the land she claims, prior to filing her declaratory statement, or prior to the application and sworn statement of J. D. H. Chamberlin under act June 3, 1878, and that the land should be awarded to said Chamberlin."

Your office reversed the judgment of the local office, rejected Chamberlin's application to purchase, and allowed the declaratory statement of Miss Drucker to stand, subject to her ability to make proof and payment in conformity with the law and regulations.

After a careful examination of the evidence, I am unable to conclude that Miss Drucker made such settlement and improvement as the preemption law requires. Henry J. Bridges testifies that he on or about May 1, 1882, at the request of Miss Drucker, visited and viewed the land, taking with him one N. D. Young, who knew and could show him the location of the tract. They did nothing upon the land. A few days after he had conversation with Young about making improvements on the land, and paid him $20, for the purpose of having improvements made. In doing this he acted for Drucker. He was next on the land May 14 and 15, 1882, Miss Drucker and others being with him. No improvements had yet been made by Young, nor did they on the days named perform any act of settlement. An old cabin stood on the land. They visited this, and were in it, but did nothing to indicate that applicant claimed it. She was next on the land in June. This was after her filing, and no act of settlement had yet been performed.

She was next there in October following, and not again until about the 15th of January, 1883, when she moved into a small house which one Samuel Strong, who lived on land adjoining, had built for her shortly before. The construction of this house, which was commenced in December, 1882, a month or more after Chamberlin's application to purchase, and seven months after her filing, was, so far as the evidence shows, the first act of settlement by Miss Drucker on the tract. Prior to that time, she

had never slept nor eaten upon the land, nor had she performed any act thereon which could properly be construed as an act of settlement, or as notice to the public of her intention to claim the land.

On the facts as presented by the testimony in the case, I must conclude that the showing as made by Miss Drucker herself is such as to make it clear beyond a reasonable doubt that she failed to meet the requirements of the pre-emption law as to settlement prior to filing, and further that she had performed no act of settlement prior to Chamberlin's application to purchase, and therefore at that date had no valid pre-emption claim.

Her filing must consequently be canceled. It may here be added that on the 7th of January, 1884, Chamberlin made affidavit before the register of the land office, C. F. Roberts, (one of the officers before whom the hearing was had,) in which he averred that since the date of the contest, to wit, on the 20th day of November, 1883, Cina Drucker married one Frank Beckwith, and that she and her husband are residing at the city of Eureka, California.

If this be true, the pre-emption claimant has waived and forfeited her right to make entry of the land in question, even had her right been sustained in this contest.

Section 2259 of the Revised Statutes restricts the right to make preemption to such persons as are respectively the head of a family, a widow or a single person. Miss Drucker, if married, does not fall within any of the classes mentioned, and is not a qualified pre-emptor. See cases of Rosanna Kennedy, (10 C. L. O., 152;) and Sarah A. Edwards, (3 L. D., 384.)

Counsel for Miss Drucker acknowledged service of a copy of the affidavit referred to on the day on which it was made (January 7, 1884,) and have filed nothing in reply, though a year and a half has elapsed. It may further be remarked that the testimony taken at the hearing went wholly to the question of Miss Drucker's good faith and compliance with the law, and contains nothing to show whether the land in dispute is of a character making it properly subject to entry under the act of June 3, 1878. I shall therefore not pass upon the question of Chamberlin's right to purchase, further than to direct the cancellation of Miss Drucker's filing, thus clearing the record so that his application may be reinstated and he be allowed to purchase, provided it is shown that the land is of the character contemplated by said, act of June 3, 1878. The decision of your predecessor is reversed.

PRACTICE-NOTICE; PRE-EMPTION-SETTLEMENT.

ELLIOTT v. NOEL.

Motion to dismiss an appeal, because not filed in time, will not be entertained where it appears that the appellant did not have written notice of the adverse decision. A slightly marked pre-emption settlement made upon densely timbered land, as a basis for a claim covering part of two quarter sections, is not notice as to the extent of the claim outside of the quarter section upon which the settlement is located.

Secretary Lamar to Commissioner Sparks July 28, 1885.

The case of William H. Elliott v. Mac Noel has been considered on appeal by Noel from the decision of your office dated June 6, 1884, wherein his pre-emption filing was held for cancellation, so far as it relates to the S of the NE of Sec. 25, T. 59, R. 18, Duluth, Minnesota.

Elliott filed a motion requesting this Department to dismiss the appeal on the ground that it was not filed within the time prescribed by the Rules of Practice.

The record shows that the local officers verbally informed Noel's attorney of the action of your office of June 6, 1884. Noel's appeal was filed August 16, 1884, being the sixty-first day after notice. (See Rule 86 of Practice.)

Rule 17 of Practice, however, provides that notice of decisions shall be in writing, and as the local officers erred in not complying with the rule, the motion to dismiss will not be entertained.

Elliott filed declaratory statement No. 3046 May 3, 1883, covering the Sof NE and N of SE of Sec. 25, alleging settlement April 27, 1883.

Noel filed declaratory statement 3070 June 3, 1883, for the NE of said section, alleging settlement May 3, 1883, and advertised to make final proof November 28, 1883, in support of his claim.

November 27, 1883, Elliott filed an affidavit setting forth the conflict of claims between Noel and himself relative to the Sof the NE 4, and alleging his prior settlement and claim to the tract.

On January 3, 1884, a hearing was held to determine the respective rights of the parties. Noel postponed final proof until the question at issue should be settled.

The evidence is, that the lands are situated in a locality which is well covered with timber, access to which is had by means of a trail that leads up to and by the tracts in question.

Elliott it appears first visited the tract claimed by him on April 27, 1883, and cleared the timber, consisting of about four trees, and brush from a space three or four rods square; he then went to Duluth, distant about seventy-five miles, which he reached May 3, 1883, and filed his declaratory statement for the land. He then returned May 20, 1883, and enlarged the clearing and erected a house about June 4, 1883, on

the NE of SE of Sec. 25. The original clearing was situated in the timber a few rods from the trail.

Noel inspected the NE and surroundings, and finding no evidences that it was claimed by any one, made his settlement May 3, 1883, by clearing a space on the S of the NE, and May 10, 1883, erected a house thereon. The evidence is, that Noel was at this time ignorant of the claim of Elliott to this or any other tract in the vicinity. Both parties have improved and continue to hold possession of the tracts, upon which are situated their respective houses.

The question presented for my consideration is an unusual one, particularly as both parties appear to have acted in good faith towards each other in their settlement of the tracts claimed.

Prior to May 3, 1883, when Elliott made his filing of record in the local land office, on which date Noel made settlement, Noel had no means of ascertaining what tracts Elliott contemplated including in his claim. In fact, Noel was entirely ignorant that Elliott intended settling in that locality, so far as the record in the case shows. In his inspection of the NE, Noel perceived no indications of settlement, and on May 8, 1883, commenced his settlement, immediately followed by substantial improvements thereon.

Elliott, on making his settlement on the N of the SE hurriedly absented himself from the tract for the purpose of recording his claim in the local land office, but without having taken any pains to place any mark or monument on the tract described in his declaratory statement filing to indicate that he intended to claim the Sof the NE 4, which in his absence would have placed an intending settler on his inquiry. So far as the public was concerned up to May 3, 1883, the intention of Elliott as to what forties his claim was intended to cover was locked in his own breast. His clearing on the NE of the SE † might have been used by him as the basis of a selection to suit his convenience after his inspection of the local office records May 3, 1883; so that an intending settler in his absence could not determine which of the forties surrounding the NE of the SE Elliott really intended to cover.

Again even if Noel had perceived the clearing made by Elliott April 27, he would under the circumstances have been justified in concluding that it was intended as a settlement of the SE, for the reason that the records of the land office show that, prior to May 3, 1883, such quarter section was vacant.

The evidence is, that subsequently to making the original clearing, Elliott, in returning to his claim, was enabled to discover its whereabouts only after a close search. This being the fact, how can Noel, who was in ignorance of the claim of Elliott, be held during the absence of the latter to have been better able to discover such an indication of settlement?

The case being strongly exceptional, forms an exception to the general poctrine that any act of settlement is sufficient to put a subsequent set

tler upon his notice, and to compel him to inquire as to the real boundaries of the first settler's claim, before risking a settlement that may possibly conflict therewith. Elliott had marked only the SE and left the neighborhood. Noel went upon the NE 4, and on that subdivision really established the first settlement, simultaneously as to date with the declaratory filing of Elliott. Till that moment no certain priority could be claimed and on that date the settlement claim attached to the land by personal seizin, while the filing was merely a declaration that it was the intent to include it in the settlement upon the other quarter section.

Under the circumstances the claim of Noel for the Sof the NE will be held as prior to that of Elliott.

The declaratory statement of Elliott, so far as it relates to the Sof the NE, will be permitted to stand, subject to the final proof of Noel. Your predecessor's decision is reversed.

REVIEW.

ST. PAUL & SIOUX CITY R. R. Co. v. THE UNITED STATES.

On motion for review of departmental decision rendered April 27, 1885 (3 L. D., 504), the Secretary of the Interior refused to reconsider said decision, and dismissed the motion July 28, 1885.

MINERAL APPLICATIONS-SCHOOL LANDS.

ORDER OF SUSPENSION.

Acting Secretary Jenks to Commissioner Sparks, July 30, 1885.

In reply to your inquiry of the 10th ultimo respecting the scope of Departmental order of 24th March last, directing you "to suspend all action relative to mineral applications for school lauds in the Territories until further instructions," I have to advise you that the same was not intended to refer to claims initiated upon unsurveyed lands which may possibly by subsequent survey be found to lie in a school section, but was directed to a possible question as to whether or not mineral lands as such are exempt from the reservation of 16th and 36th sections for the support of schools.