favor of the pre-emptor, Larson, and disallowed the application of Wright, and your office in said decision of March 15, 1887, affirmed the decision of the local officers, and Wright now appeals to this Department.

6

n the hearing, the appellant offered to prove, that the land in dis pute was "chiefly valuable for timber" and "unfit for cultivation." The local officers refused to allow this proof to be made, and this is one of the errors assigned on this appeal. This assignment of error must be sustained. In the case of Porter v. Throop (6 L. D., 691), I held, that "while the act of June 3, 1878, in exempting from its operation lands claimed by a bona fide settler,' ex vi termini, recognizes that there may be a bona fide settlement on lands of the character described therein― that is, lands chiefly valuable for timber and unfit for ordinary agricultural purposes '-yet, for obvious reasons, such settlements should be closely scrutinized, and the fact, that the land is of such a character, might be a circumstance, taken in connection with the other facts of the case, shedding light upon the question of the bona fides of the settler." The exception in the act of June 3, 1878, is in favor of the "bona fide settler," and the issue involved in this case is the bona fides of the settlement of Larson. The evidence offered as to the character of the land being relevant to this issue, under the circumstances of this case hereinafter stated, should have been admitted.

It is true, as stated in your office decision, that "The question of Larson's compliance with the requirements of the pre-emption law will be enquired into when he offers to make proof," and it was not necessary, as between him and the timber land applicant, that compliance with those requirements should have been shown on the hearing in this case. The bona fides of his settlement and not his conformity to the require ments of the law, was the subject of inquiry, and on this issue the burden was upon the timber land applicant. A settlement to be bona fide must be made for the purpose of making the tract a home. (Porter v. Throop, supra.) This is the test, and a settlement for the purpose of securing the timber on the land or for any other purpose than estab lishing a home, is not a bona fide settlement within the meaning of the act of June 3, 1878.

It appears from the evidence, that the tract in dispute was six or seven miles from any other settlement in a dense forest of fir timber, and accessible only by a foot path, that it had been returned by the surveyor-general as timber land, and had on it (according to the estimate of the witness) 4,000,000 feet of merchantable timber; and, while the local officers decided, as above stated, that evidence that the land was unfit for cultivation was not admissible, it appeared from the testimony incidentally, that the soil was poor, broken and gravelly, and that it would require the expenditure of an amount wholly disproportionate to any possible returns which could be expected from such land to clear and prepare it for cultivation. There seems to have been no induce

ment for a reasonable man of family to establish a home on such land, surrounded as it was by a forest, located so far from any other settlement and comparatively inaccessible.

Larson testifies, that he went on the land in May, 1885, and built a house thereon about the last of July of that year, and was there about three weeks the first time and from one to two weeks in each of the months of July, August, September, October and November, 1885, and from November, 1885, to May, 1886, he was not on the land at all; that he owned a comfortable well furnished house in Seattle, in which he and his family (a wife and son) resided during the whole of said time up to April 16, 1886, when he and his family went to California, where he remained about three weeks and then returned to the land, leaving his family in California, and that, on account of sickness of his wife and son, he went to California again in June, 1886, and had just returned to the land a few days before the hearing. The house built by Larson on the land was a log house, twelve by fourteen feet, with walls six feet high, chinks unstopped, a bark roof and gable ends which would not protect from rain, a dirt floor, a door and window, but no chimney. He had dug up a few stumps, slashed the trees on from a third to a half acre of land, and had spaded a piece of ground, twenty by thirty feet, and planted oats and onions thereon. He had also laid down two or three logs, as he states, for the foundation of a better house. His total improvements were valued by his witness at $50, and by the witnesses of the timber land applicant at not more than $20.

The character of Larson's improvements and of the land, its location and surroundings, and the large quantity of merchantable timber thereon (for utilizing which, together with that on other lands in the vicinity, a railroad had been projected and commenced about the time of Larson's filing), his maintenance of a home elsewhere after his alleged settlement on the land, and all the facts and circumstances of the case, convince me, that his was not a bona fide settlement for the purpose of establishing a home on the land, but that it was a pretended, or, at most, colorable, settlement, made with a view to securing the benefit of the timber thereon.

The decision of your office is accordingly reversed. The filing of Larson will be canceled, and the application of Wright must be acted upon as though said filing of Larson had not been made.

MINING CLAIM-MILL SITE--TIMBER.

TWO SISTERS LODE AND MILL SITE.

Land not used or occupied for mining or milling purposes can not be appropriated under section 2337 R. S., for the purpose of securing the timber growing thereon. Secretary Vilas to Commissioner Stockslager, December 19, 1888.

On October 29, 1885, John Brennan et al. made mineral entry, No. 2924, at Central City, Colorado, for the Two Sisters' Lode and Mill-Site

claim, situated in the Montana mining district, Clear Creek county, State of Colorado, as per survey No. 2190 A and B.

One June 15, 1887, the claimants were required by letter of your office, to furnish evidence that the mill-site-survey No. 2190 B-was used or occupied, at or prior to the application for patent, for mining or milling purposes.

The evidence submitted in response to this requirement, consists of the corroborated affidavit of entryman, Brennan, from which it appears that said mill site was located for the purpose of securing the timber growing thereon for use in working said lode; that the claimants have been using such timber for the purposes stated, and constiuing such, use as equivalent to use and occupancy of the land for mining or milling purposes, they seek to obtain patent for the tract under Section 2337 of the Revised Statutes.

Upon consideration of the record as thus presented, your office, on September 8, 1887, held the entry of claimants for cancellation, to the extent of the area embraced in said mill site, survey No. 2190 B, on the stated ground that "the use of the timber growing on the mill site is not . . such use or occupation of the land as the law con

templates."

The appeal by claimants from this decision brings the case here. It appears from the record in the case that there is upon the land applied for a considerable quantity of timber, such as can be used for "timbering the mine," but not suitable for saw lumber; there is no timber within the boundary lines of said lode claim suitable for use in working the mine, and that said mine or lode can not be successfully worked without getting the necessary timber from some other place. That the situation of the tract is a suitable one for the erection of a concentrating mill, and the claimants allege that it is their intention and expectation to erect on the tract such a mill, for the purpose of concentrating the ores taken from said Two Sisters' Lode.

But it is at present only insisted by the claimants that it is necessary for them to have the use of the timber growing on said land for the purposes aforesaid, and for that reason alone they ask that a patent be is sued to them for the land as a mill-site. No improvement of the tract is shown, or alleged, nor has the land been used or occupied by claimants, in any sense, except for the purpose of taking the timber therefrom. By said Sec. 2337 of the Revised Statutes, it is provided that: Where non mineral land not contiguous to the vein or lode is used or occupied by the proprietor of such vein or lode for mining or milling purposes, such non-adjacent surface-ground may be embraced and included in an application for a patent for such vein or lode, and the same may be patented therewith, subject to the same preliminary requirements as to survey and notice as are applicable to veins or lodes; but no location hereafter made of such non-adjacent land shall exceed five acres, and payment for the same must be made at the same rate as fixed by this chapter for the superficies of the lode. The owner of a quartz-mill or reduction-works, not owning a mine in connection therewith, may also receive a patent for his mill-site, as provided in this section.

In the case of Charles Lennig (5 L. D., 190), the Department held that the foregoing section contemplated the actual use or occupation by improvements or otherwise, for mining or milling purposes, of the land sought to be obtained thereunder; that the second clause of the section makes the right to a patent of a mill-site dependent upon the existenceon the land of a quartz mill or reduction works; but that under the first clause of said section, the use or occupation of the land for mining or milling purposes, is the only prerequisite to a patent. That by the "use" of the land for mining or milling purposes, is meant the operation of a quartz mill or reduction works upon it, or in any other manner, employing it in connection with mining or milling operations; and that “occupation" of the land for mining or milling purposes, so far as it may be distinguished from the "use" thereof, is something more than mere naked possession, and that such occupation must be evidenced by outward and visible signs of the applicants' good faith. It was further held in said case that "when an applicant is not actually using the land, he must show such an occupation, by improvements or otherwise, as evidences an intended use of the tract in good faith for mining and milling purposes," and that the use of water obtained from the tract is not a use of land, as contemplated by said section.

This ruling was followed in the case of the Cyprus Mill-Site (6 L. D., 706), in which it was held that land not improved or occupied for mining or milling purposes, can not be appropriated under said section 2337, for the purpose of securing the water thereon.

Viewed in the light of these authorities, it is clear that the land here in question, has neither been "used" or "occupied " by the applicants, for mining or milling purposes, within the meaning of either clause of said section. The use of the timber thereon is not the use of the land; neither is the mere naked possession of the tract, for the purpose of taking the timber therefrom, such an occupancy of the land as is contemplated by the act.

Your said office decision is therefore affirmed.

FINAL PROOF PROCEEDINGS-REPUBLICATION-HEARING.

MAGGIE A. GARRISON.

The necessity for republication, where the proof was not made on the day designated, is obviated by a hearing subsequently ordered on affidavit of contest.

First Assistant Secretary Muldrow to Commissioner Stockslager, December 21,

1888.

On November 30, 1888, this department recalled its decision dated November 9, 1888 (7 L. D., 417), in the case of Maggie A. Garrison in volving her title to SW. 4, Sec. 31, T. 1. N., R. 25 W., Bloomington,

Nebraska land district, said decision being a modification of your decision in the same case dated March 15, 1887,

The attention of the Department has been called to the fact that prior to the signing of the said decision of November 9, 1888, an affidavit of contest filed by one Nicholas Deitz, July 14, 1888, had been transmitted to this Department but said affidavit not being with the record in said case at the time the same was examined by me, received no consideration.

As a hearing upon said affidavit of contest will doubtless be ordered by your office, and as all the facts necessary for a proper and just decision will no doubt be brought out upon said hearing, a republication of notice as directed in my said letter of November 9, becomes unnecessary, and I herewith return said affidavit of contest and the other papers in the case for such further action in your office, as the case may require under the law and rules of the Department.

ALABAMA LANDS-ACT OF MARCH 3, 1883.

DAVID J. DAVIS.

While bona fide homestead entries, made prior to the passage of the act of March 3, 1883, were protected under said act, such protection would not extend to one claiming under the relinquishment of such an entry.

A homestead entry, allowed in contravention of the terms of said act, and under which valuable improvements have been made, may be suspended, pending public offering of the land, and treated as an application to enter in the event that the land is not sold on such offering.

First Assistant Secretary Muldrow to Commissioner Stockslager, December 21, 1888.

I have considered the case of David J. Davis, on his appeal from your office decision of December 2, 1887, holding for cancellation his homestead entry made December 20, 1886, for SW. 1, NW. 1, E. 1, SW. and NW., SW. 4, Section 24, T. 15 S., R. 4 W., Montgomery, Alabama land district.

You say in said decision that the entry "is held for cancellation for illegality the land embraced therein being described in the mineral list on file in this office as valuable for coal.'"

A corroborated affidavit of appellant filed with his appeal, shows that claimant who was duly qualified to make homestead entry of public lands, purchased the improvements of one Elias M. Myrick on the land above described, together with the said Myrick's relinquishment of his homestead entry for said land made September 5, 1882. Claimant filed said relinquishment in the local office and immediately made entry of said tract under the homestead law. After entry he took possession of the land, built a house sixteen and one-half by eighteen and one-half