In allowing entries for lands in this reservation, under said law, you will in each case endorse on the application "Fort Cameron Reservation, act August 23, 1894," and make the same notation on your abstract of homestead entries.

Under the provisions of the homestead law, an entryman has the right either to commute his entry after fourteen months from date of settlement, or offer final proof under Sec. 2291 R. S. In entries under said act of August 23, 1894, he may, at his option, commute after fourteen months with full payment in cash, or, after submitting ordinary five year final proof and after its acceptance, he may pay for the land the full amount of the appraised value thereof or at not less than $1.25 per acre, without interest, or he may make payment in five equal installments, the first payment to be made one year after the acceptance of his final proof, and the subsequent payments to be made annually thereafter, interest to be charged at the rate of four per cent per annum from the date of the acceptance of final proof until all pay. ments are made.

In case the full amount is paid after fourteen months from date of settlement you will, if the proof is satisfactory, issue cash certificate and receipt; and in the event that regular final proof is made, and the full amount then paid, you will issue final certificate and receipt; but when partial payments are made the receiver will issue a receipt only for the amount of the principal and interest paid, reporting the same in a special column of the abstract of homestead receipts, and at the time last payment is made, you will issue the final papers as in ordinary homestead entries.

In issuing final papers you will make the proper annotations thereon, as well as on the applications and abstracts, as before directed, to show that the entry covers lands in Fort Cameron reservation.

You are further advised that the same rule, as to the allowance of credit for residence prior to entry and for military service, applies to entries under said act of August 23, 1894, as to other homestead entries. Where, upon submitting final proofs the entrymen elect to make payment for the lands entered in five annual installments, you are authorized to make the usual charges for reducing the testimony to writing, but as the final certificate and receipt cannot be issued until the last payment is made you cannot charge the final commissions until said final certificate and receipt are issued.

Where the entrymen submit final proofs and elect to pay for the lands in installments, you will not give said proofs current numbers and dates but will, if they are acceptable to you, make proper notes on your records showing that satisfactory proof has been made and the dates upon which the partial payments must be made, and then transmit said proofs to this office, in special letters, and not in your monthly returns, for filing with the original entries.

There are no guarantees to be taken in order to secure payment of

the installments, but if, when each installment is due, any entryman fails to pay the same you will report the matter to this office when proper action will be taken in the case.

The said act of August 23, 1894, did not repeal the act of July 5, 1884 (23 Stat., 103), hence, parties qualified to make entry under the second section of the latter act may do so without making other payment than the legal fee and commissions.

Sections 2, 16, 32 and 36 of this reservation are reserved for school purposes.

On May 4, and August 5, 1895, you transmitted the applications of John R. Murdock to be permitted to purchase, under the third section of the said act of July 5, 1884, the SW.SW. Sec. 13, NW. NW. Sec. 24, S. SE.Sec. 14 and the NE. Sec. 23, T. 29 S., R. 7. W., subdivisions containing buildings purchased by him from the government. Subsequently Mr. Murdock relinquished all claims to the SW. 1 SW. Sec. 13, and the SW. SE. Sec. 14, T. 29 S., R. 7 W. It therefore appears that the subdivisions containing buildings and which Mr. Murdock is entitled to purchase are the following, viz: SE. SE. † Sec. 14, the NE. Sec. 23, and NW. 1 NW. Sec. 24, T. 29 S., R. 7 W.

You will advise Mr. Murdock that he will be allowed sixty days from notice hereof, within which to make application to purchase the last mentioned subdivisions, upon which the buildings are situated, and to pay therefor the appraised value where that is fixed at or more than $1.25 per acre, and at the rate of $1.25 per acre for the subdivisions appraised at less than $1.25 per acre, and inform him that if he fails to make said purchase within the time specified the lands will become subject to homestead entry by the first legal applicant.

In case the application is made and the purchase money tendered you will issue cash certificate and receipt, modified to suit the case, making the following notation on the margins thereof: "Purchased under Sec. 3, act of July 5, 1884."

Issue notice to Mr. Murdock and in due time make report in accordance with circular of October 28, 1886 (5 L. D., 204).

You will acknowledge receipt of this letter.

Very respectfully,

Approved March 22, 1897:

C. N. BLISS,

Secretary.

E. F. BEST, Acting Commissioner.

SETTLEMENT RIGHT-STATE SELECTION,

BENSON v. STATE OF IDAHO.

No rights are secured by a settlement made for the purpose of securing the timber on the land and not for the establishment of a home.

A State selection made prior to the official filing of the township plat is premature and invalid.

Secretary Francis to the Commissioner of the General Land Office, January (I. H. L.) (R. W. H.)

8, 1897.

On July 16, 1894, Elmer E. Benson made application to enter, under the homestead law, the W. of the SE. 4, the SE. of the SE. 1, Sec. 8, and the SW. of the SW. Sec. 9, Tp. 39 N., R. 2 E., Lewiston land district, Idaho. His application was rejected, on the ground that the State of Idaho had selected the land under its grant for the support and maintenance of an insane asylum, as provided by section 11 of the act of July 3, 1890, for the admission of the State of Idaho into the Union. (26 Stat., 215.)

On appeal to your office a hearing was ordered, which resulted in a recommendation by the local office that Benson's homestead application be allowed and the State selection canceled.

Upon the State's appeal from this decision of the local office, your office declined to allow said homestead application, for the reason that you were not satisfied from the testimony that-

Benson went upon the land honestly and in good faith for the purpose of actual settlement, and of honestly endeavoring to comply with all the requirements as to settlement, residence and cultivation necessary to acquire title under the homestead law, [being] of the opinion rather that his purpose from the first was speculative only, in that he intended to obtain the valuable timber upon the land by means of a homestead entry, without complying with the conditions of the homestead law. This conclusion is supported by the facts as they appear in the record. Benson was an unmarried man. He first went upon the land,

which was covered with valuable timber, about April 24, 1894, cleared about a quarter of an acre and laid eight small unhewn logs in square form as a foundation of a cabin. In the latter part of May, or early part of June following, he finished the cabin with logs of the same sort, and after that did nothing more upon the land up to the time of the hearing.

There is no disinterested testimony as to Benson's good faith, his only witnesses being his brother Orin L. Benson, and Mace E. Kent, both of whom had contests pending against the State's selection of neighboring tracts, and who depended, each upon the other, for evidence to support their claims.

Against this testimony the State produces two witnesses, Florence and Jordan, the former a public officer and the latter his assistant, who were employed by the State to make the selections under its grant

from Congress; and, inasmuch as the law (act of March 3, 1893,) provided that the preference right of selection for the period of sixty days, given therein to the States, "shall not accrue against bona fide homestead and pre-emption settlers on any of said lands at the date of filing of the plat of survey of any township in any local office of said States," it must be presumed, in the absence of evidence to the contrary, that the State's selecting agents used due diligence to discover evidences of settlement, and were careful to avoid the selection of occupied tracts.

Both Florence and Jordan, on behalf of the State, swear that they went over this land in May, 1894, and saw no indications of settlement or improvements alleged to have been made on the ground in April.

Upon weighing the testimony, I find that whatever settlement there was on the land was only a colorable one, and made to anticipate the filing of the map and the selection of the State, with a view to securing the valuable timber thereon, and not for a home.

In Dobie v. Jameson (19 L. D., 91), Little v. Durant (3 L. D., 74), McWeeney v. Greene (9 L. D., 38), and many other cases, it is held that "the acts of settlement upon unsurveyed land must be of such a character, and so open and notorious, that the public generally may have notice of the settlers' claims." The rule as laid down in Wright v. Larson (7 L. D., 555), applies as well to this case as to entries under the act of June 3, 1878. It is that "a settlement for the purpose of securing the timber on the land, or for any other purpose than establishing a home, is not a bona fide settlement within the meaning of said act."

Your decision declining to allow Benson's homestead application is therefore affirmed.

Among the specifications of error in the claimant's appeal is the following:

The Hon. Commissioner erred in not holding and deciding that the selection by the State of Idaho, embracing the land in controversy, was prematurely made, and, as such, was and is absolutely void.

It appears from the record that the plat of township 39, range 2 E., B. M., was received at the local office at Lewiston, on May 4, 1894, and that George B. Florence, State selecting agent for Idaho, selected the land in controversy on June 30, 1894, for the insane asylum (List No. 3), under the grant contained in section 11 of the act of July 3, 1890 (26 U. S. Stat., 215), providing for the admission of Idaho as a State into the Union. The plat, however, was not officially filed in the local office until July 2, 1894. Prior to this date, under rules established by the Department, the land embraced in said approved plat was not subject to entry or selection (4 L. D., 202).

In Campbell v. Jackson (17 L. D., 417), it is held

That an application to enter land, which is not subject to entry at the time the application is made, confers no rights upon the applicant. This was held in Goodale 10671-VOL 24-18

v. Olney (13 L. D., 498), and in Maggie Laird, on page 502 of the same volume. The same rule would prevail in the case of a selection by a State, and it must be made to appear, that at the time the State applied to select the land, it was subject to such selection. Otherwise, no rights would be secured by the application.

In Lansdale v. Daniels (100 U. S., 113), Mr. Justice Clifford said: Beyond doubt the declaratory statement was a nullity, as it was filed at a time when the act of Congress gave it no effect. The fact that it remained in the local office will not remove the difficulty, as it was made and filed without authority of law.

The Department makes no distinction between entries by individuals and selections by States or corporations under Congressional grants, as to the time when their rights, respectively, attach, unless the language of the grant itself makes an exception to the general rule, as stated above, which is not claimed in the present case.

The State selection of the laud in question, made June 30, 1:94, prior to the official filing of the township plat on July 2, 1894, was therefore premature and invalid. (William Herth, 22 L. D., 385.)

No right, however, accrues to Benson, because his settlement was not bona fide and his application was speculative.

The land in question is still a part of "the surveyed, unreserved and unappropriated public lands of the United States within the limits of the State," and subject to selection by the State under the direction of the Secretary of the Interior, as provided in section 14 of the act of July 3, 1890, provided that, at the time of exercising its right, the land is not occupied by a bona fide homestead settler or reserved under any other law for the disposal of the public lands.

PRACTICE-ORDER FOR HEARING-RAILROAD GRANT.

ST. LOUIS, IRON MOUNTAIN AND SOUTHERN Ry. Co. v. MCCLAINE. An order for a hearing issued by the General Land Office, on the appeal of an applicant from the rejection of his application to enter, operates as a disposition of said appeal, and its want of regularity is thereafter not material.

Land not protected by withdrawal and embraced within a bona fide settlement claim is not subject to indemnity selection.

Secretary Bliss to the Commissioner of the General Land Office, March (I. H. L.)

15, 1897.

(W. M. W.)

The case of the St. Louis, Iron Mountain and Southern Railway Company . John H. McClaine has been considered, on the appeal of the former from your office decision of November 9, 1895, holding for cancellation its list of selection as to the E. of the NW. of Sec. 17, T. 22 N., R. 3 E., Ironton, Missouri, land district.

The land in question is within the indemnity limits of the grant to the Cairo and Fulton Railroad Company, now the St. Louis, Iron Mountain and Southern Railway Company by the act of July 22, 1866 (14 Stat., 338), and was selected by the company July 12, 1894, per list No. 1.