order of withdrawal upon the map of general route, (July 18, 1879, supra,) Johnson's unexpired filing, prima facie valid, excepted the tract therefrom. (Northern Pacific R. R. Co., v. Stovenour, 10 L. D., 645).

Stuart's declaratory statement alleges settlement in March, "1885." And in his final proof, made July 19, 1886, in reply to the question, "When did you first make settlement on the above described land," Stuart answered, " March 5, 1885.”

On the other hand in reply to the next question, "When did you first establish actual residence on the land you now seek to enter?" Stuart answers, " March, 1882."

One of these answers must be an error on the part of Stuart-or of the person making out his papers (which are evidently not in Stuart's handwriting). To determine which is correct, reference must be had to other evidence in the record.

Samuel Hubbard, one of claimant's final proof witnesses, testifies that he has known claimant since October, 1884; and in response to the question," When did he commence his residence thereon?" answers, "Before I knew him." This shows residence before October, 1881.

Charles Z. Cheney, the claimant's other witness, in response to the question, "When did claimant first settle on his claim?" answers, "March, 1882;" and in response to the further question, "When did he commence his residence thereon?" answers, "March, 1882."

The above-named witnesses were cross-examined. On cross-examination witness Cheney says: "Claimant has raised corn, grain, potatoes, and vegetables of all kinds; he has cut and stacked hay each year for four years."

The amount of improvements made by the claimant-aside from those purchased by him from a former occupant of the tract—are large even for four years.

There is a strong preponderance of evidence to show that Stuart's settlement and residence were made in March, 1882.

Notwithstanding claimant's declaratory statement alleged settlement in 1885, he was not thereby estopped from proving that it was actually made at another and earlier date. "The law gives him a right to the land from the date of his settlement; and his right is not to be defeated by a discrepant allegation he may have made, when it is shown that it was made by mistake" (Zinkand v. Brown, 3 L. D., 380; Tipp v. Thomas, ib., 102).

Holding that Stuart's settlement dates from March, 1882, such settlement excepted the tract from the grant upon the subsequent filing (May 24, 1884, supra,) of the map of definite location.

The railroad company does not deny that Stuart's settlement and residence preceded the filing of the map of definite location, but claims the tract solely on the ground that it was error to hold that Johnson's filing excepted the land from the withdrawal on the map of general route. The decision of your office, holding the tract subject to entry by Stuart, is affirmed.

TIMBER LAND ENTRY-PRE-EMPTION CLAIM.

TENNY V. JOHNSON ET AL.

A timber land entry under the act of June 3, 1878, can not be allowed for land included within a bona fide pre-emption claim, and the right of the pre-emptor is not affected by the fact that his improvements are not on the particular subdivision in conflict.

In determining the good faith of a pre-emption claim, asserted for land subject to entry under said act of 1878, it is competent to consider the character of the land involved.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, August 2, 1890.

I have considered the case of John R. Tenny against Charles A. Johnson and Alexander Sealander on appeal by the former from your decision of January 9, 1889, rejecting his application to enter the W. SE. and E. SW. Sec. 33 T. 24 N., R. 1 W., Olympia, Washington land district.

The facts are as follows:

On July 6, 1885, Alexander R. Sealander filled pre-emption declaratory statement for the S. SE. of Sec. 33 and W. SW. Sec. 34, T. 24 N., R. 1. W., Olympia land district, alleging settlement June 23, 1885.

On July 11, 1885, Charles A. Johnson filed pre-emption declaratory statement for the SW. SW. 1, E. § SW. and NW. SE. 4 of Sec. 33, same township and range, alleging settlement June 23, 1885.

On April 17, 1886, John R. Tenny filed an application to enter the E. SW. and W. SE. Sec. 33, same township and range, under the timber and stone act of June 3rd 1878 and tendered proof and payment therefore July 13, 1886, and supplemental proof August 12, 1886. This application being in conflict with Sealander's declaratory statement for the SW. SE. of said section 33, and with Johnson's declaratory statemeut for the E. SW. and NW. of SE. of said section 33, a hearing was ordered on August 13, 1886 to be held at the land office at Olympia, October 4, 1886, to determine the validity of said pre-emption declaratory statements.

By stipulation of the parties the testimony was taken at Seattle, Washington, before a notary public, at which hearing Johnson appeared in person and Sealander and Tenny by attorneys. The testimony was taken and returned to the office and on March 5, 1887, the register and receiver decided that said tracts sought to be entered by Tenny were not on April 17, 1886, subject to said entry and Tenny's application was rejected. From this decision he appealed to your office and on January 9, 1889, you affirmed said decision, from which judg ment he appealed to this Department.

The testimony introduced by Tenny's attorney related chiefly to the nature of the land, and it showed that said land was somewhat broken 2497-VOL. 11-10

and that the greater portion of it was covered by fir and pine timber. It showed incidently that the pre-emptors had each made some improvements on their respective lands, but that these improvements were not on the particular land sought to be entered by Tenny.

The testimony introduced by Johnson and Sealander showed that each had built a cabin on his land and made some clearing. Sealander being sick was unable to attend the hearing. The testimony showed that Johnson had a comfortable house twenty-four by fourteen feet and about five acres cleared and in cultivation; that he had raised very good vegetables on the land; that his family had been living in the house from January, 1886, except during a portion of the time when his children were at school. Tenny did not appear at the hearing and no witness of the seven called in his behalf appears to have ever known or ever seen him.

The fact that the particular tracts sought to be purchased by Tenny did not cover the particular subdivisions upon which the pre-emptor's improvements were situated cannot affect their rights in the premises, nor does the fact that the greater portion of the land is excellent timber land, make any difference in the case. The testimony as to the quality of the land involved, was, however, competent as reflecting upon the bona fides of the pre-emptors, the objection thereto and motion to rule out were not well taken.

In Porter v. Throop (6 L. D., 691) these questions were fully discussed and decided. It was said—

While as a matter of fact, there were no improvements or settlement on the one hundred and twenty acres of land in dispute, in contemplation of law, Throop's improvements and settlement on the forty acre tract not in dispute covered the entire tract.

As to the other point it was said—

The exception in the act of June 3, 1878, is in favor not of the 'settler' but of the bona fide settler' . . . and while the act in exempting from its operation lands claimed by a 'bona fide settler' ex vi termini recognizes that there may be a bona fide settlement on lands of the character described therein, that is lands chiefly valuable for timber and unfit for ordinary agricultural purposes,' . . . . and the fact that the land is of such a character, might be a circumstance, taken in connection with other facts of the case, shedding light upon the question of the bona fides of the settler.

I have considered all the testimony in the case, and I find that both Johnson and Sealander have acted in good faith in the matter of their pre-emption claims, and after a careful examination of the entire record I find no sufficient reason for disturbing the conclusion reached by both your office and the local officers and the decision of your office is therefore affirmed. Tenny's application to enter said land is rejected.

It appears from the record in the case that a motion to dismiss the appeal was filed. The motion is not found with the papers, and the case being one of some importance, I have reviewed the entire record,

and passed upon the merits of the case, disregarding the motion to dismiss, of which the appellee in view of the conclusion reached, can not complain.

PRIVATE CLAIM-INDEMNITY.

ASA HICKMAN.

The right to indemnity under section 3, act of June 2, 1858, does not exist if the claim under which such right is asserted was satisfied by location prior to the passage of said act.

Secretary Noble to the Commissioner of the General Land Office, August 2, 1890.

In the report of the register and receiver for the southwestern district of Louisiana, made under the act of March 3, 1823 (3 Stat., 756), providing for the examination of titles to land between the Rio Hondo and Sabine River, the claim of Asa Hickman, assignee of John Mayhew, 3d class No. 233 for six hundred and forty acres on the bayou Santaburb, by virtue of inhabitation, occupation and cultivation, was recommended for confirmation. American State Papers, Green's Ed., Vol. 4 p. 69.

By the act of May 24, 1828 (6 Stat., 382), the claims in the third class above (with a few express exceptious, that of Hickman not being among the exceptions), were confirmed.

By application, dated December 12, 1887, Leo Vandigaer, the duly appointed curator of the vacant succession of Asa Hickman, deceased, alleging that the claim mentioned remained "wholly unlocated and unsatisfied," applied to the surveyor-general at New Orleans for the issue of certificates of location, "under section three of the act of June 2, 1858" (11 Stat., 294), in satisfaction of said claim.

The register and receiver at Nachitoches certify, that the records of their office show that the claim mentioned has not been located or satisfied, as provided by the confirmatory act of May, 1828, supra, and their certificate, dated October 14, 1887, accompanies the said applica. tion.

By letter, dated December 24, 1887, the surveyor-general at New Orleans, after stating that the records of his office show that said claim. "has never been located, surveyed or satisfied by the government," trausmitted, in satisfaction thereof, eight certificates of location of eighty acres each for authentication by your office.

On April 25, 1888, your office, finding said claim to have been located in place on Sec. 35, T. 7 N., R. 9 W., in the Nachitoches, formerly Opelousas, land district, and that consequently it was not entitled to indemnity, held for cancellation the said certificates of location.

From this action the applicant appeals here.

Your office found the claim to be so located for the reason that in patent certificate No. 626, in favor of Asa Hickman his heirs and as

signs, dated at the Opelousas land office September 13, 1833 and signed by the register it was designated as section 35 etc., that the tract books of your office "show that said section is reserved to satisfy this claim" and that the receiver at Nachitoches, by letter of January 27, 1888, reports that the said section is entered in the tract book as "purchased by Jno. Mayhew Asa Hickman, assignee."

In the tract books of your office opposite said section 35, is entered the said claim of Asa Hickman and also another claim of like nature by William Hickman.

The receiver at Nachitoches in his said letter of January 27, 1888, in response to your office instructions to report the status of said section 35, reports further that on the township map the claim of "William Hickman" is marked upon the said section and that the same claim is entered in a list of Rio Hondo claims on file in the Nachitoches office as embracing the whole of section 35. It also appears from said letter and from the records of your office that a patent certificate No. 107 dated April 21, 1853, for said section 35 has been issued in favor of William Hickman.

Subsequently to his appeal the applicant filed-under rule one bundred of practice-certain papers as additional evidence. Among the papers thus filed I find a certified copy of the township plat approved July 14, 1832, on file in the surveyor-general's office; a certified copy of sections 25, 27, 34 and 35 “as taken from the map of said township approved July 17, 1832" on file in the land office at Nachitoches, and a certified copy of an extract from the original field notes of the survey of said township, that have been approved and which are on file in the surveyor-general's office.

On both of the maps referred to "Asa Hickman" is marked upon the south half of sections 26 and 27, and "William Hickman" on section 35. The field notes mentioned are those of the deputy surveyor who in July 1832 ran the interior sectional lines of said township, and who with reference to the line between sections 26 and 35 stated that "Asa Hickman" claims section 26 and "William Hickman" section 35.

The evidence concerning the location of the claim in question seems therefore to be the said patent certificate to Asa Hickman, and the tract books referred to showing the location of the claim involved to be on said section 35, the township plats and the surveyor's notes which tend to show that it was located on sections 26 and 27, the certificate of the local officers, and the statement of the surveyor-general to the effect that it has not been located at all.

In the report of the register and receiver at Opelousas supra, the claim involved, to wit, that of Asa Hickman is thus described “bounded above by other land claimed by the claimant, on other sides by vacant land." By the same report the said claim of William Hickman, also for six hundred and forty acres is described as "situated on the Bayou Santaburb bounded on the lower side by land claimed by William Cummings. Am. State Papers, Vol. 4, p. 49, No. 107.