An examination of the final proof papers confirms the findings of your office relative thereto.

The foregoing lengthy summary of the testimony in Atterbery's case has been made for the reason that counsel for the transferee assert that the land officers "mistook the law and grossly perverted the facts" and characterize the decision of your office as "weak and foolish." The other four cases are no stronger, if as strong for the transferee, as Atterbery's case.. That the final proofs in said cases were false is clearly shown by the testimony taken at the hearing. The value of the improvements was less than $15, while the final proof stated the value to be $150. It is clearly shown that Atterbery did not establish his residence on said tract on March 15, 1882, as alleged in his final proof, and the evidence shows that there was no "well dug" on the land. Nor am I greatly impressed with the force of the contention of counsel that because the final proofs do not allege "a well of water" it does not follow that the proofs may not be true if holes were dug for the purpose of obtaining water. In Atterbery's case, however, there was no evidence. showing that any hole had ever been dug for the purpose of getting water.

It is earnestly contended by counsel for Simpson that said entrymen were actual settlers under the provisions of the act of May 28, 1880 (21 Stat., 143), and had the qualifications of pre-emptors on the public lands. The second section of said act provides:

That all the said Indian lands . . . . . shall be subject to disposal to actual settlers only, having the qualifications of pre-emptors-not exceeding one quarter section each.

It will be necessary to inquire who are actual settlers, within the meaning of said act? Evidently the same acts are required as would prove actual settlement under the pre-emption laws. The term "actual settler" is technical and has acquired a well defined meaning under the rulings of this Department and the decisions of the courts. An actual settler is one who goes upon the public land with the intention of making it his home under the settlement laws, and does some act in execution of such intention sufficient to give notice thereof to the public. (4 Op. 493); Lytle v. Arkansas (22 How., 193); Allman v. Thulon (1 C. L. L., 690).

In Howden v. Piper, 3 L. D., 162, this Department held that

Pre-emption is based on acts of settlement. These consist of some substantial and visible improvement having the character of permanency, with intent to appropriate it under the law. See also same case on review (ibid., 294).

This act of settlement must be personal and can not be made by an agent. Foster v. McLean (2 L. D., 175); Byer v. Burrell (6 L. D., 521).

In the case of Brake v. Ballou (19 Kansas, 402), the supreme court

of that State decided that under the provisions of section 12 of the act of 1870 (16 Stat., 362) which reads as follows:

"Which lands shall be open to settlement after survey .... and shall be sold to actual settlers only." The government evidently not only intended that no one but actual settlers should get any portion of said Osage diminished reserve, but also that every quarter section of such reserve should be occupied by an actual settler. There is no pretense that the plaintiff was ever an actual settler at all on the land in controversy. Therefore he had no right himself to purchase said land from the government. And to procure any other person to purchase it for him would be a fraud upon the government. If he could obtain title to lands in that way it would be to cause the government to sell its lands to others than actual settlers in violation of its own laws.

But it is urged by appellant that with relation to said lands, the government is "a mere trustee, ... and its duty is only well fulfilled when it obtains the money at the earliest possible moment." Citing United States v. Edwards (33 Fed. Rep., 104).

It is true that in the Edwards cases (supra) which were suits to set aside patents for Osage Indian trust and diminished reserve lands, the learned judge stated that,

All that is required of the applicant is, that he shall have the qualifications of a pre-emptor; that he shall be an actual settler, and that he shall make payment. As the government held these lands under a trust to convert them into cash, its primary object was, of course, to realize as soon and as much as possible, and not, as in respect to public lands generally, to have them improved; so it might properly ignore the questions of improvement or length of occupation. The trust was fulfilled when the money was obtained. The land Department has recently placed the same construction upon this matter. Citing the case of U. S. v. Woodbury et al (5 L. D., 303).

The court refused to set aside said patents, for the reason, that the government did not show by satisfactory evidence that it had been defrauded; that it appeared that the entrymen were qualified pre-emptors and actual settlers; that the purchase money was paid for the land and there was "not a scintilla of testimony to show that these entries were made through any collusion or by virtue of any agreement between Halsey and the parties entering."

For the sake of argument, it may be conceded that the government acts as trustee, but it is by no means true, that it is bound by the terms of the trust to dispose of said lands so as to obtain as much money as possible and that too, in the quickest time possible. Were this so, the government would offer the lands at public auction and allow speculators to buy without limit or restriction. But this has not been done. In the first instance by the express terms of the statute the lands can not be sold to any but actual settlers having the qualifications of preemptors, and to each not exceeding one hundred and sixty acres.

The decision of Judge Brewer in the case cited, by no means sustains the construction of the appellant, that when the government has sold said lands and obtained the purchase money, "its obligation and authority are at an end." If the entry was fraudulent, or the entrymen did not have the qualifications required by said act of 1880, the mere fact that 16184-VOL 8-12

upon false and fraudulent proof, the government had, through its proper officers, received payment and issued certificates for the land, would not deprive the government of the right and authority to cancel the entry upon proper proceedings being had. In the case of the United States v. Woodbury (supra) the question presented for decision was, whether a qualified pre-emptor, after filing his declaratory statement and settling in good faith upon Osage diminished reserve lands, could make a valid agreement to convey the land to a town-site company after entry; and it was held that the statutory oath required of a preemptor is not applicable to an entry under said act of May 28, 1880; and that the only condition pre-requisite to an entry of said lands is, that the purchaser shall be an actual settler with the qualifications of a preemptor. The decision in the Woodbury case referred to the case of Morgan v. Craig (10 C. L. O., 239), and stated that it held "that a comparison of said act with that of May 9, 1872, and other acts relating to the disposal of these lands, shows that it was the policy of Congress to subject entries upon these lands to all the requirements and conditions of the general pre-emption laws." The correctness of this ruling was denied by the Department, and to that extent the case of Morgan v. Craig was overruled. In the case of Booth v. Lee, decided March 12, 1888 (unreported), cited by counsel as authority for the proposition that "the departmental ruling is that settlement for the benefit of another on these diminished reserved lands is valid," the following statement is made:

This Department held in the case of United States v. Woodbury, that under the act of May 28, 1880 (21 Stat., 143), the only condition pre-requisite to an entry of the Osage Indian trust and diminished reserve lands in Kansas, is that the purchaser shall be an actual settler with the qualifications of a pre-emptor; this decision overruled the former decision of Morgan v. Craig (10 C. L. O., 234) which held that a comparison of said act with that of May 9, 1872 (17 Stat., 90) and with other acts relating to the disposal of Indian lands in Kansas, shows that it was the policy of Congress to subject private entries upon that diminished reserved land to the general principles of the pre emption laws; and that a purchaser of said land may acquire title to the same although his settlement was made with the intention of proving up for the benefit of another to whom he had agreed to convey the land after entry.

Said statement, so far as the same relates to the bona fides of the settlement, which was quoted from the case of Woodbury et al., was not necessary to the decision in Booth v. Lee (supra) and can not be regarded as authority, for the Department rejected the claim of Booth because he was never an actual settler within the meaning of said act. It is a well established rule that expressions of opinion not necessary to the decision of the case can not be considered as authority, or even binding upon the conscience of the court, in the same case upon a second appeal upon similar facts. Barney et al v. Winona and St. Peter Railroad Company (117 U. S., 228).

It is evident, therefore, that in the Woodbury case (supra) it was not necessary to decide and the Department did not intend to decide "that

a purchaser of said lands may acquire title to the same although his settlement was made for the benefit of another," and the statement of the Department in Booth v. Lee to that effect was an erroneous expres sion of opinion not necessary to the decision of that case. If the settlement is not bona fide, but is made for the benefit of another, then the settler cannot be considered an "actual settler" within the meaning of said act. If, however, the settlement is actually made in good faith, then the mere agreement to convey after entry will not of itself invali date the entry. United States v. Woodbury et al (supra). But "it is essential that the settlement be shown to be actual and bona fide." See Circular approved April 26, 1887 (5 L. D., 581).

The local land officers with the witnesses before them, with an opportunity of noticing their demeanor while testifying, and after carefully weighing their testimony have found against the validity of said entries, and your office has sustained their action.

A careful consideration of the whole record leads me to the conclusion that said decision is correct, and I accordingly affirm the same.

SWAMP LAND-FIELD NOTES OF SURVEY.

LACHANCE. STATE OF MINNESOTA.

Though the field notes of survey may show the land to be of the character granted, it will not pass to the State under the swamp grant if the falsity of such return is established.

Secretary Vilas to Commissioner Stockslager, February 7, 1889.

I have considered the case of Mikell Lachance v. The State of Minnesota, involving Lot 1, the SE. 1 of the NE. 1, and the NE. of the SE. # of Section 4, T. 61 N., R. 15 W., 4th P. M., Duluth, Minnesota, on appeal by the latter from the decision of your office of October 14, 1887, holding for rejection the State's claim under the swamp land grant.

Lachance made settlement on the tract in controversy April 6, 1883, with the intention of entering the same under the homestead laws when the plat of survey should be filed in the local land office. He alleged that, between that date and the 21st of the same month, he had erected and established his residence in a substantial log house and claimed that his improvements were worth $250.

June 11, 1833, the township plat was filed in the local office. June 20, the same year, Lachance went to the local office for the purpose of making homestead application for said tract, when he found that on the day of the filing of township plat the State had made selection of the same tract as swamp land, under the act of March 12, 1860 (12 Stat., 3). Thereupon Lachance made affidavit strongly corroborated by the affidavits of several of his neighbors, setting forth the fact of his settlement, and residence as herein stated, and the further fact that no part

of said tract is swampy, but on the contrary that all of it "is high and dry and in every way fitted for agricultural purposes;" that any survey upon which it is noted as "swamp land" is and must necessarily be "false and fraudulent"; and he asked that a date be designated for a hearing at which he may be allowed "to substantiate any and all the allegations above set forth."

October 13, 1884, your office denied Lachance's request for a hearing to determine the character of the land. On appeal your decision was reversed April 7, 1886, by my predecessor and your office was "directed to order a hearing at which Lachance will be afforded an opportunity to prove the character and condition of the tract in controversy at the date of the swamp land grant to the State of Minnesota." Lachance v. The State of Minnesota (4 L. D., 479).

A hearing to determine the character of the land at the date of the swamp grant was accordingly ordered. Notice was issued to the parties in interest August 5, 1886, fixing September 24, 1886, as the day for the trial at the local office. On that day the contestant appeared with his attorney T. H. Pressuell, and W. W. Billson appeared in behalf of the State.

The Commissioner of the State Land Office objected to the jurisdiction of the register and receiver, and protested against the right or power of any officer or officers of the United States to investigate, attempt to decide upon or to determine the rights of the State of Minnesota by reason of the character of said tract of land or to decide upon any of the questions mentioned in the notice of the proceedings. The grounds of objection were fully considered in the decision directing the hearing and the local officers properly overruled the said objection and proceeded with the hearing.

The local officers decided that the testimony tended to show that the greater part of Lot 1 and the SE. 4 of the NE. are wet and overflowed lands unfit for cultivation without drainage, and that the NE. † of the SE. is high agricultural land.

From the decision of the local office both parties appealed. A decision was rendered by your office October 14, 1887, holding that from the evidence "the character of the land in controversy as dry, agricultural land is clearly and fully established," and holding for rejection the claim of the State for the whole tract.

This decision is brought before me for review, by the appeal of the State.

The determination of the case rests upon the weight to be given to the testimony which is so conflicting that it will be referred to at some length.

Peter Lachance (no relation of claimant) examined the land in June, 1886, found eight acres of low land in the river bottom, which was then dry but might overflow in the spring; the land lies about twenty-five feet above the water in the stream and is timbered with birch, poplar