light, without leaving any evidence of having been present, is such an act as this Department should be slow to accept as the settlement required by the pre-emption law. Such a course is suggestive of sharp practice, rather than of a purpose to enter upon and claim land in good faith as a bona fide settler.

Upon a full consideration of all the facts and circumstances in this case, I am led to the conclusion arrived at by you that Ashworth never made a bona fide settlement for his own exclusive use and benefit, but that what he did was not only at the instigation of but in the interest of his employer, Joseph B. Crow.

It certainly is not proven that Ashworth made settlement May 3, 1883. It is not now claimed that he made settlement May 1, 1883, the date originally alleged by him. It may be said, and is intimated, that he being now dead, no better evidence than that already furnished can be adduced relative to his settlement May 3d. This is without doubt true, for acts alleged to have been done in the dark, and at a time and under circumstances which precluded their being observed by others, are not susceptible of proof by the testimony of witnesses. But he who chooses such a line of action takes all the risk which the secrecy of his acts imposes, should it become necessary to affirmatively prove those acts.

It is objected by counsel for appellant that the only question at issue in this case is that as to the date of Ashworth's settlement, and that your decision that the claim was made in the interest of Crow was outside of the issue made by the contest, and was therefore erroneous. This objection is without force. The hearing was ordered, not only as to the time, but as to the character of Ashworth's settlement, and testimony was taken on the issues thus made. Moreover, the Land Department, by virtue of its supervisory authority, maintains the right of the government to take such cognizance of and action on all facts brought before it in any case as may be necessary to a proper protection of its interests. Smith v. Brandes (2 L. D., 95).

Your decision is affirmed.

SWAMP LANDS.-ACTION TO VACATE CERTIFICATION.

STATE OF OREGON.*

The certification of the list in question appearing to have been procured through the fraudulent action of the government agent charged with the examination of the land, the State is directed to show cause why said certification should not be revoked.

Secretary Lamar to Hon. Z. F. Moody, governor of Oregon, January 20, 1887.

On the 22d day of December last I addressed a communication to your predecessor in reference to swamp lands certified to the State of Oregon, embraced in list No. 5.

*See pages 31 and 300 of this volume.

This communication was in reply to a letter from Governor Moody, complaining that the special agent, appointed to make examination of the swamp lands of Oregon, was still investigating the character of the lands embraced in said list No. 5, and the conduct of R. V. Ankeny, a former special agent of the department, in connection with the report of said list for certification.

In reply thereto, attention was called to the fact that such investigation was expressly authorized by my letter of August 7, 1886, for the purpose of determining whether evidence existed to support the charge that the approval and certification of this list was obtained through the fraudulent conduct of the former special agent charged with the duty of making an examination of these lands, and of others conspiring with him for that purpose.

The result of that investigation has been presented to me in the report of Special Agent Charles Shackleford, with accompanying affidavits, which shows that Special Agent R. V. Ankeney never examined certain lands embraced in said list No.5; that at the time of the alleged examination of said land he was confined to his bed with a broken leg; that upon December 23, 1881, said Ankeney made a corrupt contract in writing with H. C. Owen, the principal claimant of these lands under the State, whereby he, Ankeney, was to receive a large sum of money out of the proceeds of the sale of said land; that this contract was made before Ankeney reported upon the land in question, his report bearing date December 26, 1881; that these reports were falsely and corruptly made, and the approval of the list by the Secretary of the Interior was procured by means of bribery and corruption of said Ankeney, and that a large part of the lands, reported for approval as swamp and overflowed, are not and never have been swamp and overflowed lands within the meaning of the grant.

In view of the above charges, I deem it my duty to require the State of Oregon, through its agents, to show cause on or before Monday, the 18th day of April next, why said certificate and approval of list No. 5 should not be revoked and canceled, and why a re-examination of said lands should not be ordered.

The report of Special Agent Shackleford, and all other papers on file in the Department pertaining to said charge, are now subject to inspection by the agents of the State, or any other party or parties in interest. I have directed that a copy of this order be served upon Captain John Mullan, the agent of the State of Oregon residing in Washington.

LANDS SEGREGATED BY MILITARY OCCUPATION.

WILSON DAVIS.

The establishment and occupancy of a cantonment by the military authorities, excludes from entry, prior to the formal order of reservation, the land thus appropriated.

Acting Secretary Muldrow to Commissioner Sparks, January 20, 1887.

I have considered the appeal of Wilson Davis from the decision of your office, dated July 25, 1885, holding for cancellation his pre-emption cash entry No. 105 of the W. of the NW. 4 and the N. of the SW. of Sec. 6, T. 47 N., R. 8 W., N. M. Meridian, made October 2, 1883, at the Gunnison land office, in the State of Colorado, so far as the same conflicts with the military reserve, as shown by the supplemental township plat approved July 15, 1884.

The facts appear to be substantially set forth in the decision appealed from, and it is shown that the land in controversy was within the limits of the Ute Indian Reservation, formerly occupied by the White River and Uncompahgre Ute Indians in Colorado, which was declared to be public land of the United States and subject to disposal for cash under existing laws, by act of Congress approved July 28, 1882 (22 Stat., 178).

It appears that the township plat of survey embracing said land was filed on March 23, 1883; that Davis filed his pre-emption declaratory statement for said tracts on July 9, 1883, alleging settlement March 27, 1882, and cash certificate was issued upon his final proof on October 2, 1883. It further appears from the statement in said decision and from an inspection of the records of your office that the land in controversy was occupied by the United States military authorities in 1880 as a cantonment.

In response to an inquiry from your office, the Secretary of War, on November 18, 1882, transmitted the report of the Judge Advocate General relative to the status of the land within the late Uncompalgre Reservation, reported as having been laid off by the military authorities in the Uncompahgre Valley and called the cantonment, in which it was held that by virtue of the treaties made by and between the United States and the Indians, dated October 7, 1863 (13 Stat., 673), March 2, 1868 (15 Stat., 619), and September 18, 1873, said cantonment was properly located on said Indian Reservation; that, although the reservation for the cantonment was not in fact declared by the President, yet the land was in good faith legally appropriated, and therefore segregated from the public domain, and that said cantonment should be considered a military reservation, and the land embraced therein should not be considered subject to disposal as other public lands, under said act.

The Secretary of War concurred in the views expressed by the Judge Advocate General. Your office held that the establishment of said can

tonment and the occupation thereof by the military authorities, acting under the authority of the Commander-in-Chief, the President, must be regarded as legal, and that the reservation must be considered as established by law, so as to exempt the lands embraced therein from entry under the pre-emption laws.

It is urged that the formal order of the President, declaring said reservation, was not made until after Davis had made his said entry, but that can make no difference, if the land embraced in said entry was in fact included in said cantonment, and the same had been established by law and was in the actual occupation of the military authorities at the time of his said entry, the entry must be considered illegal, so far as it covers land within the limits of the cantonment.

A careful examination of the record discloses no good reason for disturbing said decision, and it is accordingly affirmed.

PRACTICE-REJECTED APPLICATION: HOMESTEAD.

TURNER v. BUMGARDNER.

Information as to the right of appeal not having been given under Rule 66 of Practice, the right of the rejected applicant to be subsequently heard is recognized.

An entry made for the purpose of wrongfully acquiring the improvements of another, and under which settlement could only be consummated by forcible intrusion, confers no right under the homestead law.

Acting Secretary Muldrow to Commissioner Sparks, January 22, 1887. I have considered the case of George W. Turner v. George W. Bumgardner, involving the SE. of Sec. 12, T. 9 N., R. 10 E., M. D. M.,

Sacramento district, California. Bumgardner made homestead entry of said tract April 22, 1884. Turner applied to make homestead entry of the same tract on the 29th of the same month; but his application was rejected because of the prior entry of Bumgardner. October 21, 1884, Turner presented before the local office affidavits alleging settlement prior to that of Bumgardner, and asking for a hearing, which was had December 6, 1884. The local officers rendered joint decision in favor of Turner, and recommended the cancellation of Bumgardner's entry. Bumgardner appealed to your office, which by letter of June 5, 1885, affirmed the decision of the local officers. Bumgardner appealed.

From the record and the testimony the following facts appear:

On April 18, 1884, said Turner purchased from one Burns, for $400, the improvements on the tracts in controversy, consisting of two dwelling-houses, a barn, and other out-buildings. Turner took immediate possession-turning his horses into the pasture that night, and moving his family and household goods on the 20th. From that date until the

hearing he continued to reside upou and improve the land-repairing and building fences, digging irrigating ditches, setting out fruit trees, grape vines, etc.

On the day after the purchase of the improvements on the tract by Turner, one Noe (who at the hearing was a witness in the case), stated to Bumgardner, who was an engineer in charge of the hoisting works of a mine about a quarter of a mile distaut from the tract, the fact of such purchase by Turner. Bumgardner told witness that he wanted that place, and intended to file for it; and two days afterward-April 22-he went to the land office at Sacramento and made homestead entry of the tract.

A few days later Turner forwarded application my mail-which reached the local office April 29-to make homestead entry of the tract. His application was rejected on account of Bumgardner's prior application, and returned by letter.

Thereupon Turner called upon Bumgardner-who lived only a quarter of a mile distant, and whom he regarded as a neighbor and friend—and inquired into the matter. Bumgardner-Turner states in his testimony"Told me to go on just as if he had not filed upon it; to go on and improve it just the same, and him and me would have no trouble about it." Turner, being an ignorant man, and apparently understanding that his purchase from Burns gave him some right to the land as well as to improvements, and being informed by his attorney that his priority of settlement would constitute a sure protection against any claim by Bumgardner, took no steps to protect his rights in the premises. The local officers, when they returned to him by letter his homestead application with the information that it was rejected, did not instruct him in the law, nor notify him that he had the right of appeal from their decision.

On the 28th of September, Bumgardner attempted to bring some lumber upon the land to build a house. This Turner at once forbade, and ordered him away. Nevertheless, Bumgardner (as testified to not only by Turner's witnesses but by Bumgardner himself) entered upon the land by force, tearing down the fence to enter the enclosure, and put up a small house, worth (Bumgardner estimates) $80 or $100, into which he moved about October 20, again tearing down the fence; as Bumgardner testifies: "He had put it up to keep me out, but I was not going to stay out." Bumgardner took up his residence in the house just one day before the expiration of six months after making homestead entry.

Bumgardner's appeal is placed upon the ground that Turner

"Had no right to the land in contest at the date of the institution of such contest by reason of his prior settlement and occupation thereof, he having failed to place his homestead entry therefor of record within the limitation prescribed by statute, or to appeal from the decision of the local officers refusing his application to homestead the land."