dismissing the contest of said Barker against the timber culture entry No. 288, of John Carberry, for the NW. 1, Sec. 32, T. 30 N., R. 14 W., Niobrara land district, Nebraska.

Counsel for the plaintiff, who appeals from your decision, does not clearly set out in his brief what he claims to be the failure of the defendant to comply with the timber culture act, except to refer generally to the testimony and leaves it for the department to fish out therefrom the acts of the defendant upon the tract tending to establish a non-compliance with the law. From a careful examination of the tes timony, I am satisfied that the defendant has the requisite number of trees growing on the premises, and while they are small, yet I think the entryman used reasonable efforts, considering what he had to contend with to encourage their growth. It has repeatedly been held by this department, that where trees are not dwarfed by the negligence of the entryman to properly cultivate them, there is no provision in the timber culture law requiring that the trees should attain any particular height or size before certificate and patent can issue. Robert M. Winslow, 8 L. D., 191; Henry Hooper, 6 L. D., 624; and Frohne v. Sanborn, 6 L. D., 491.

I have no reason for disturbing your decision and the same is accordingly affirmed and the contest of the plaintiff dismissed.

SETTLEMENT PRIOR TO SURVEY-JOINT ENTRY,
LORD v. PERRIN.

A settler must be located on the land prior to the survey thereof in the field, to entitle him to make joint entry with another under the provisions of section 2274, R. S.

A settlement made prior to survey in the field by an alien who subsequently, and before approval of the survey, files his declaration of intention to become a citizen, is such as to entitle him to the right of joint entry.

Conflicting settlement rights for the same tract, acquired prior to survey, may be adjusted by allowing either party to enter the entire tract on condition that he tenders to the other a written agreement to convey to him that portion of the land rightfully covered by his occupation.

If both parties fail or refuse to make entry on the conditions thus specified, joint entry may be allowed in accordance with the statute.

Secretary Noble to the Commissioner of the General Land Office, June 1,

1889.

I have considered the case of Frank D. Lord v. Joseph Perrin, involving lot 2, See. 13, T. 161 N., R. 74 W., Devils Lake land district, Dakota, now before me on the appeal of Perrin from the decision of your office, on May 4, 1886, rejecting his final proof as to said lot and awarding priority of right thereto to Lord.

The survey of the township, in which said lot is situate, was made in

the field during October, 1884, the plat thereof was approved December, 1884, and filed in the local office January 7, 1885.

On January 22, 1885, Joseph Perrin filed declaratory statement for lots 2 and 3, SW. † NE. † and SW. 4 NW. 1, Sec. 13, said township and range, alleging settlement August 20, 1884.

On February 16, 1885, Frank D. Lord filed declaratory statement for lots 1 and "2," Sec. 13, lot 5, Sec. 12, lot 5, Sec. 11, and NE. NE. of Sec. 14, same town and range.

It will be seen that the two claims conflict as to lot 2, Sec. 13.

On May 30, 1885, Perrin offered final proof and Lord protested against the same so far as lot 2 was involved. A hearing was had in June, and the local officers sustained the protest of Lord; and on appeal your office affirmed their judgment.

A small diagram forwarded by the local officers with their decision and hereto attached shows, that all the tracts claimed by Lord are located along the south side of Devils Lake, and are all made fractional by the meanders of the lake, except the NE. NE. † of Sec. 14. Lot 2, the land in controversy, as platted, contains forty-eight acres.

At the hearing quite a number of witnesses testified, and there is apparently considerable conflict in their evidence on certain points, whilst in other respects the testimony is clear of difficulty.

It is thus made to appear that Lord was about the first settler upon the banks of Devils Lake in that particular locality, arriving there in April, 1883. The lands thereabouts were then unsurveyed, and he, in company with one White, first measured off on the banks of the lake what they supposed to be a half mile square. In a few days he changed this location and made as he says one in the shape of an L, running with the lake for "three forties long and one forty north of the west forty." This verbal description is not very accurate and does not correspond entirely with the location of his present claim as shown on the diagram. He says that after making this location he ran a furrow to mark it. The testimony on this subject is so conflicting as to be irreconcilable, and I am not satisfied that at that time Lord intended to or did claim any part of what is now lot 2. It is certain he then camped upon the land adjoining it on the west, now lot 1, Sec. 13, erected thereon his first home and dug the cellar for what was intended to be a much larger house, and hauled logs to commence the erection of the same. Subsequently, however, he seems to have changed his mind, hauled the logs further to the east and late in the fall of 1883 he erected his house and other buildings upon that part of what is now lot 2, which is immediately upon the banks of the lake and which if the sub-divisional lines of Sec. 13 had been run across, would have been a lot immediately north of the SE. 4 of the NW. 4 of said section; and there he has lived since, and bas improvements worth $1,200 all of which, up to the time of contest, were within the eight acres nearest the lake. All this took place prior to the acquisition of any rights of Perrin.

Shortly after Lord, other settlers were located in the vicinage and from measurements or private surveys made by them, an impression prevailed that a fraction of about eight acres would be laid off, on survey, where Lord's house and improvements were and would not include the forty acres south of that. Lord also seems to have entertained this belief and at that time not to have intended to claim more than the fraction containing his improvements; for after he removed from his first house or shack, having sold it to one Marlett, about April, 1884, it was moved upon said lot 2, where it was set up in plain sight of Lord's house. Marlett claimed the southern forty of said tract and forty acres adjoining on the east, and the claim seems to have been acquiesced in by Lord. It is claimed that Marlett purchased the possessory right to the southern forty of lot 2 from Lord. He, however, emphatically denies that he sold anything but the house; and admits he acquiesced in Marlett's claim to the southern part of that lot, but only recognized it outside of forty acres southward from the Lake. But Miller, one of the witnesses for Perrin, states most positively that both Lord and Marlett told him that Marlett bad bought, with the "shack" from Lord the latter's possessory right to all of the now lot 2, except that portion covered by Lord's improvements. The character of this witness Miller is not assailed. He is without interest in the result of the case and his testimony clear, positive and detailed, must be accepted as conclusive on this point. It is in fact corroborated by the acts of Marlett and Lord and by the circumstances of the case, as will further appear.

Marlett continued to occupy the shack located as above, on lot 2 until May 10, 1884, when he sold the same, together with the possessory right to the said tract to Henry Perrin, a son of the present claimant. Gag. non, another disinterested witness, testifies that after this sale, in company with Henry Perrin, the claim was measured, marked off and stakes. driven; that whilst engaged in doing this Lord came up and inquired what they were about, and was told they were running the line of Perrin's claim, and were going to chain across the north side of the claim and it would run very near Lord's house. He said he thought not. He stepped it out to his house, and said it would not run so close as thought. The north line was then established by driving a picket about eight or nine rods south of Lord's house, who was present and did not object. Henry Perrin cultivated a portion of the land that year and the year afterwards, without objection from Lord. This Henry Perrin was, if not a minor, at that time, an alien, who had made no declaration of his intention to become a citizen. He states that his purchase, settlement, etc., were all intended for the benefit of his father, who subsequently arrived and entered into possession of the claim so initiated, and erected his house and other buildings upon what is now lot 3 of said Sec. 13.

Joseph Perrin, the father, when he arrived, on August 20, 1884, was unnaturalized, but declared his intention to become a citizen of the United States on November 3, 1884; and it is claimed his rights as a

settler upon the public lands, if he has any, can only date from that day.

As further confirmatory of the view, that Lord did not at the time intend to include within his claim more of lot 2 than was covered by his improvements on the northern part thereof, it is a fact beyond dispute that Lord who acted as a land locator in the neighborhood actually made out for Perrin, the declaratory statement of the latter after the township plat was filed in the local office. For this work Lord was paid, and forwarded the paper to the local office. In this declaratory statement was included the land in controversy, and it is inconceivable that Lord would have made out such a document, unless he then recognized the claim of Perrin to the said land. It is true, Lord afterwards filed declaratory statement embracing the same tract, but this is not necessarily inconsistent with the recognition of Perrin's claim to the south forty acres, but was done by Lord, doubtless to protect his improvements on lot 2, and which he then thought could not be otherwise protected than by filing a claim to the whole of said lot 2.

I am satisfied that Perrin and Lord made settlement upon said lot 2, and had improvements thereon, " prior to the survey thereof," and that said settlements were open and notorious, and acquiesced in by both parties.

The register and receiver seem to have come to the same conclusion for they say in their opinion,—

In view of the peculiar case, resulting from a platting of the land so unexpected, a joint entry, under R. S., 2274 would seem to have a basis of equity, did the law in the case render such adjustment practicable. It is, however, precluded, under the statute, as Joseph Perrin's interest does not attach until after the land had been surveyed.

Provisions relating to the adjustment by the local officers of the conflicting claims of settlers upon lands prior to survey were enacted into law as early as 1808. But existing law, now embodied in section 2274 R. S., was enacted by the act of March 3, 1873 (17 Stat., 609). This law is

When settlements have been made upon agricultural public lands

prior

to the survey thereof, and it has been or shall be ascertained, after the public surveys have been extended over such lands, that two or more settlers have improvements upon the same legal sub-division, it shall be lawful for such settlers to make joint entry of their lands at the local land office, etc.

Shortly after the passage of said act, the Commissioner of the General Land Office on March 31, 1873, issued a circular of instructions in relation to the provisions of that law, wherein it was said :

When the survey in the field finds two or more settlers with improvements on the same legal sub-division, a joint entry thereof will be allowed as heretofore. (1C. L. L., 301).

This circular so far as I have been able to ascertain is yet in force, not having been modified or changed by any other circular or by ruling of the Department.

Ordinarily, the public lands are not deemed to be surveyed, in con

templation of law, until the survey is approved and becomes a record in the district land office. Barnard v. Ashley's heirs, 18 How., 46; California v. Townsend, 2 C. L. L., 1117; Foster's case, ib., 1125. But, in view of the manifest purpose entertained by Congress in enacting the legislation referred to, I am inclined to believe that the construction placed thereon by your office is the correct one, and that the settler must have been located on the land" prior to the survey thereof " in the field to entitle him to make joint entry with another under the provisions of said act. Were it otherwise, instead of the law affording protection to those who had improved and were in the occupation of public lands prior to and at the time of survey, it would open the door wide to fraud and enable those, who, ascertaining where the subdivisional lines of the survey in the fields run, would, prior to the approving and recording thereof, locate upon and improve the already improved lands of prior settlers, to claim the right to make joint entry thereof because they were settlers upon the public lands "prior to the survey thereof." If such a strict construction of the law is to prevail, it would clearly cover Perrin's case. For, though the survey of said township was made in the field in October, 1884, inasmuch as the plat thereof was not approved and filed in the local office until January 7, 1885, prior to which time Perrin, who had become qualified, by virtue of his declaration of intention of November 3, 1884, to acquire rights under the pre-emption laws, had settled upon the tract in controversy, which was also partly occupied by Lord, it would seem that the former was within the letter of the statute and, strictly speaking, a settler on said tract "prior to the survey thereof," and that joint entry would be proper under the circumstances. But, as I read the law, a mere compliance with its technical provisions, ignoring the obvious and substantial purposes for which it was enacted, will not alone confer rights. Nor, on the other hand, would the failure to comply with any of the literal and technical requirements necessarily defeat the enjoyment of the benefits of the law by one who obviously came within the scope of its purposes, and was acting in good faith. The statute is remedial in its character; it aims to prevent vexatious litigation, and give repose to those persons seeking to acquire title to the public lands under the settlement laws, who have in good faith established themselves on a tract prior to survey, and afterwards found that unintentionally they had located upon a legal subdivision occupied by another. Such a statute in the interest of peace should meet with a fair and liberal construction by the Department, and, if possible, be made effective to accomplish its benefi cent purposes.

The case under consideration seems to me to be a meritorious one, and clearly within the purview of the statute, adopting the constructions put thereon by your office circular referred to. Perrin, though not naturalized, settled upon this tract personally on August 20, 1884, nearly two months before the survey in the field was made. He could