December 21, 1889, the local officers rejected Waldon's final proof. Waldon appealed to your office, and on May 18, 1895, your office affirmed the decision of the local officers and held his entry for cancellation. From this decision Waldon appeals, alleging the following

errors:

1st. In finding that Waldon went on the land in question for the purpose of engag ing in the hotel business.

2d. In finding that at the time he made settlement on the land in controversy the same was used for the purpose of trade and business in the meaning of Sec. 2258 R. S. 3d. In holding that said land was not subject to entry because used for trade and business.

The protestants having alleged no right in themselves to the land in question, the case will be considered only as between the government and Waldon. If it be true that his settlement was made for speculative purposes, and that he went upon the land for the purpose of engaging in the hotel business, his entry nominally for homestead purposes was a fraud and unauthorized. The evidence of other witnesses, together with Waldon's admissions, leave no room for doubt as to the purpose of his settlement made in July, 1884, on a surveyed town lot, the boundaries of which were recognized and conformed to, in the erection of his building, a plat of the town having been filed with the register of deeds for Emmons county on June 3, 1884. In November, 1884, three months after the commencement of his settlement, he had published in the newspaper the following advertisement:

Merchants Hotel, Winona, D. T.

John Waldon, Proprietor.

This house is conducted in a first class manner, and every attention is paid to the comfort and convenience of travelers, the building is twenty-four by fifty, two stories high. The hotel is well furnished and the culinary department is well supplied with everything the market affords. If you have occasion to visit the beautiful and growing city of Winona do not forget to visit the Merchants.

The short interval between Waldon's settlement and the appearance of the advertisement quoted, had been presumably occupied in the building of the twenty-five hundred dollar house described. Any effort to find evidence of a settlement for agricultural and homestead purposes, in the acts performed by Waldon, or the language used by him in proclaiming his business and location, would prove useless. Waldon evidently appears to much better advantage as a stirring enterprising man of business with speculative projects in mind, than as a pioncer agricultural homeseeker, under the homestead laws. This is not said to his discredit, since it is not the policy of the law to discourage enterprise and industry, in any legitimate pursuit. The law, however, does not permit benefits which it confers upon homesteaders, to be appropri ated by those who do not contemplate the use of the land for agricul tural purposes, but for business and speculative purposes. It is not unlawful to make settlements for business purposes, but where such settlements are made, the rights thereby initiated must be perfected

under the townsite and not under the homestead laws. So far as the record indicates its status, the town of Winona is unincorporated, and no entry of lands has been made for the benefit of its inhabitants. Affidavits which are a part of the record indicate that improvements located on a forty of the SW. 4, including Waldon's hotel, are worth' five thousand dollars. As Waldon's improvements are worth $2,500, if he was permitted to perfect title to the land through his entry, he would thus become possessed of improvements to the value of $2,500 made by others. While these improvements in the form of business houses continue to be used and occupied for purposes of trade and business, the land is not subject to entry as a homestead, but may be applied for under the townsite laws. It is not decided that if Waldon had made his settlement in advance of any others, and for homestead purposes, that the entertainment of the public at his home for profit, would forfeit his right to perfect his title under his homestead entry, but the evidence shows that not only was the building of a town on this land in contemplation, but that at least three buildings were constructed, or in process of construction on this quarter, before Waldon made his settlement and commenced the erection of his hotel, and under such circumstances he must be held to have made his settlement primarily and chiefly for trade and business, and not for agricultural purposes.

Your office decision is therefore affirmed.

SWAMP LAND-HOMESTEAD-ACT OF JUNE 17, 1892.

HOLCOMB . State of CALIFORNIA.

The preferred right of homestead entry accorded to actual settlers, by the act of June 17, 1892, opening the Klamath River Indian reservation, does not extend to lands returned as swamp and overflowed, and so represented on the approved, township surveys and plats.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.) (C. J. G.)

uary 18, 1897.

Phineas D. Holcomb has filed an appeal from your office decision of June 7, 1895, holding for cancellation his homestead entry, made May 22, 1894, for lot 5, Sec. 3, and lots 8 and 9, Sec. 4, T. 13 N., R. 1 E., Humboldt land district, California, to the extent that his said entry conflicts with the claim of the State under the swamp land grant.

The above described land is within what was the Klamath River Indian reservation in the State of California, set apart and reserved under authority of law by an executive order dated November 16, 1855. The land is also claimed by the State of California under the swamp land grant of September 28, 1850 (9 Stat., 519).

The act of July 23, 1866 (14 Stat., 218), as incorporated in section 2488 of the Revised Statutes, provides as follows:

It shall be the duty of the Commissioner of the General Land Office, to certify over to the State of California as swamp and overflowed lands, all the lands represented as such upon the approved township surveys and plats, whether made before or after the 23d day of July, 1866, under the authority of the United States.

Surveys and plats of the township in which the land in question is situated were made in the years 1878, 1881 and 1886. The lands within these surveys were returned as swamp. The map of survey, conformable to the field notes on file in the Humboldt land office, was approved July 30, 1889, and the tract in question was therein segregated and designated as swamp land.

It was upon the above showing that your office held Holcomb's homestead entry for cancellation, as being in conflict with the claim of the State of California.

Under the act of June 17, 1892 (27 Stat., 52), the lands embraced in what was Klamath River Indian reservation were opened to settlement under the laws of the United States granting homestead rights, and it was stated in the second proviso of the act as follows:

And any person entitled to the benefits of the homestead laws of the United States who has in good faith prior to the passage of this act, made actual settlement upon any lands within said reservation not allotted under the foregoing proviso and not reserved for the permanent use and occupation of any village or settlement of Indians, with the intent to enter the same under the homestead law shall have the preferred right, at the expiration of said period of one year to enter and acquire title to the land so settled upon.

It is under the above act that the appellant herein prefers his claim. In his appeal to this Department he alleges that the land in question is not swamp and overflowed land. In face of the return made by the U. S. surveyor-general for the State of California as to the character of this land, and numerous decisions governing such matters, it would seem that the appellant's allegation is impotent to change the ruling made by your office. In the case of State of California (23 L. D., 230, on review), vacating departmental decision of March 17, 1892 (14 L. D., 253), it was held:

Under the first paragraph of section 2488 R. S., the return of the land as swamp and overflowed, by the U. S. surveyor-general for the State of California, is conclusive evidence as to the character of the land so returned and represented as such on the approved township surveys and plats; and lands thus returned must be certified to the State as inuring thereto under the swamp grant.

In State of California v. United States (3 L. D., 521) referring to the first clause of section 4, act of July 23, 1866 (supra), it was said—

Under this clause, it is clear that the State has no valid claim to the land in question, unless it is represented upon the approved township survey and plat, as swamp and overflowed land, and, if the tract is so represented, then it matters not what the real character of the land is, whether swamp and overflowed or dry, the State is entitled to the tract. Central Pacific R. R. Co. r. California (4 C. L. O., 151).

In Heath v. Wallace (138 U. S., 573), referring to the same section, the court said

As held in Tubbs r. Wilhoit, supra, this section of the statute established rules or methods for the identification of swamp and overflowed lands in California, which superseded all previous rules or methods for that purpose. The several rules or methods provided for were intended to meet any emergency that might arise, and thus give to the State all the swamp and overflowed lands within her limits. The method provided in the first clause was but one of several specified in the section. But one thing was required to be shown under this clause-only one kind of evidence as to the character of the lands was necessary-in order to give the State the right to demand the certification cf them over to her as swamp and overflowed lands; and that evidence the United States furnished in the plat of the survey of the township in which the lands were situated. An inspection of the township plat would show whether or not any lands in the township were returned as swamp and overflowed. If they were, that designation was sufficient and conclusive evidence, under the first clause of section 4 of the act, to establish the title of the State to them.

The swamp land grant to the State of California was a grant in praesenti taking effect at the date of the passage of the act (Wright v. Roseberry, 121 U. S., 488). In his appeal to this Department Holcomb alleges that he settled on the land in question in the year 1883. He also contends that the terms "all of the lands" and "any lands" employed in the act of June 17, 1892, supra, cover his claim. Prior to the passage of said act the land involved herein was embraced in the Klamath River Indian reservation. It is true that the act of June 17, 1892, recognizes the rights of settlers on this reservation, but at the same time it can not be successfully contended that the said act recognized such rights to be superior to those of the State under the swamp land grant. If his said alleged settlement had been made upon any lands within the reservation allotted under the first proviso of the act and reserved for the permanent use and occupation of any village or settlement of Indians, it would readily be conceded that such settlement by the appellant could not avail. The act of June 17, 1892, while not in terms excepting the lands included in the swamp grant to the State, could not at the same time include them without express mention. It is a reasonable presumption that Congress intended by the said act to open to settlement only those lands owned by the United States, and that it had no intention of disposing of lands which had long since passed from government control. When, therefore, the phrase "all of the lands" was employed by Congress it is reasonable to suppose that all of the land not otherwise disposed of within the Klamath River Indian reservation, was meant. No other construction can be put upon the language of the act, unless it be held that Congress intended to repeal the swamp land act. This proposition is entirely too improbable to require serious consideration.

As heretofore set out a survey of the township in which this land is situated was made as early as 1878. All the township lines were completed in 1886. As was stated in the case of Heath v. Wallace, supra, an inspection of the township plat would have shown whether

or not any lands in the township were returned as swamp and overflowed. The appellant was thus charged with notice.

The appellant claims that he has been discriminated against, in this, that lands in this reservation returned as swamp have in certain cases been allotted to Indians. Provision is made in the act of June 17, 1892, for the allotment of lands within the reservation to the Indians under certain conditions. Without considering why allotments were made of lands returned as swamp in the particular instances cited by appellant, it is sufficient to say that such action could not inure to his benefit, nor justify the Department in allowing his entry on that account. Even though the said allotments were made through inadvertence or mistake, that fact could not avail as a reason why the Department should allow the appellant's claim in face of the prior approval of this land to the State under the swamp land grant.

The appellant likewise requests that action in this case be deferred pending the disposition by the superior court of the State of a suit initiated for the purpose of determining the character of the land in question. It would seem that nothing could be gained by awaiting the decision of said court as suggested. The Department would probably not interfere with the action heretofore taken in face of the decisions cited herein. That action is in harmony with the policy of the Department. Whatever the decision of said court may be, it could not interfere with the suggestion contained in your office decision regarding the procurement of a relinquishment from the State by the entryman. Your said office decision is hereby affirmed.

RAILROAD GRANT-BENEFICIARY-LANDS EXCEPTED.

PHILLIPS v. SIOUX CITY AND PACIFIC R. R. Co. (ON REVIEW). The effect of section 17, act of July 2, 1864, was not to make a new grant but to provide a new beneficiary under the original grant of July 1, 1862, as to the Sioux City branch, and said beneficiary could only take such lands as were capable of passing under the original grant; and would therefore not acquire title to lands that were a part of the bed of the Missouri river at the date of the original grant. Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.) uary 18, 1897.

(J. L.)

This case involves lots 10 and 11 of section 1, and lot 1 of section 2, containing in the aggregate 59.60 acres, in O'Neill land district, Nebraska, in a township and range designated sometimes as T. SS N., R. 48 W., of "5th" principal meridian, Dakota Territory, and sometimes as T. 29 N., R. 8 E., of "6th" principal meridian, Nebraska.

The facts are stated in the departmental decision of March 24, 1896, published in 22 L. D., 341. The decision was, that by the acts of July 1, 1862 (12 Statutes, 489), and July 2, 1864 (13 Statutes, 356), Congress