the record as it is now presented to the Department your office decision is affirmed and the defendant's entry is held subject to the plaintiff's superior right. This action will not, however, preclude your office from directing an inquiry, in the nature of a new contest, to determine questions that have arisen since the date of the original hearing.

APPLICATION FOR SURVEY—ISLAND.

DIEDRICK C. GLISSMAN.

An application for the survey of an island, in a meandered non-navigable river, existing at the date of the township survey but omitted therefrom, must be denied, where the right of the riparian owners to the bed of the stream is recognized by the State in which the land lies.

Secretary Bliss to the Commissioner of the General Land Office, December (W. V. D.)

9, 1897.

(C. W. P.) On March 10, 1897, you submitted the application of Diedrick C. Glissman, of Great Bend, Kansas, for the survey of an island in the Arkansas River, described as being "known and recognized as the south island in said river," and, according to the diagram submitted by the applicant attached to the application, shown to be in sections 1 and 6 of township 20 south, ranges 12 and 13 west, Kansas, while in the application its location is described as being partly in sections 31 and 36, township 19 south, ranges 12 and 13 west, and sections 1 and 6, township 20 south, ranges 12 and 13 west, Kansas.

The joint affidavit on page 2 of the application shows that the island contains about forty acres of land; that the width of the channel on the north side of the island is about four hundred feet and on the south side about two hundred and fifty feet, and the depth thereof at ordinary stages of the water is about two and a half feet; that the island is about three feet above high water mark, not subject to overflow, and the land fit for agricultural purposes, with improvements thereon shown to consist of "a drove well" and one acre of land plowed, and "a dugout," put up by applicant as a residence, and valued at about twenty dollars.

Notice of the application for the survey is shown to have been served upon John Rogers, Emma L. Hamilton, Margaret Harris, and D. X. Heezer, as owners of the lands on the shores opposite to the island, none of whom appears to have acknowledged the service of notice. But John Rogers has filed a protest against the approval of the appli cation, claiming that as owner of section 1, the island belongs to him under the laws governing riparian rights, (which protest accompanied your letter of transmittal,) and in the affidavit of Mrs. Emma Hamilton and A. W. Hamilton, attached to the protest, it is stated that the Arkansas River is at no time navigable at or anywhere near the location of the island.

The township was surveyed in October, 1871, and the official plat of the survey shows an unsurveyed island in the locality described in the application and represented upon the diagram accompanying the application.

In the case of John C. Christensen (25 L. D., 413), a survey was denied of a small island in a meandered, non-navigable river, shown to have been in existence at the date of the survey of the township embracing the same, viz., in 1877, where the right of the riparian owners to the bed of the river is recognized by the State in which the land lies.

It appears that that portion of the Arkansas River in which this island lies is non-navigable, and in the case of Wood v. Fowler, 26 Kansas, 682, the doctrine of the common law that a grant of land bounded by an unnavigable stream carries with it the bed of the stream to the center of the thread thereof, appears to be recognized.

The facts in the case at bar are essentially the same as those in the case of John C. Christensen, supra, and the application of Mr. Glissman must be denied.

HOMESTEAD ENTRY-APPLICATION-GOOD FAITH.

MONTAYO v. TRUJILLO.

Under the provisions of section 2, act of March 2, 1889, a second homestead entry may be allowed, where the first was made prior to the passage of said act, but was afterwards canceled for failure to make final proof within the statutory period.

A non-mineral affidavit, sworn to before a notary public, and forwarded to the local office with the fees and commissions required on making homestead entry, can not be regarded as an application to enter, and operating to segregate the land. To justify the allowance of a homestead entry of land made valuable by the money and labor of a prior adverse settler, who is in default in the matter of filing application, it should clearly appear that the subsequent claimant is acting in entire good faith.

9, 1897.

Secretary Bliss to the Commissioner of the General Land Office, December (W. V. D.) (W. A. E.) On June 15, 1893, Crescentio Trujillo made homestead entry for the SW. of the SE. 4, the E. of the SW. 1, and the NW. of the SW. 1 of Sec. 20, T. 10 N., R. 13 W., Sante Fe, New Mexico, land district.

On October 11, 1893, Encarnacion Trujillo y Montayo filed affidavit of contest against this entry, alleging a prior right to said tract, and charging that the defendant was disqualified by reason of having made a former entry.

A hearing was had on December 1, 1893, and resulted in a decision. by the local officers in favor of the defendant.

On appeal your office, by letter of June 2, 1894, reversed the action. of the register and receiver, and held the defendant's entry subject to the plaintiff's superior right.

The defendant's appeal brings the matter before the Department. It was shown at the hearing that one Crescentio Trujillo (identified by one of the witnesses for the plaintiff as the defendant in this case) made homestead entry for the SE. 4 of Sec. 12, T. 14 N., R. 10 W., at the Santa Fe land office, on April 18, 1885; and that said entry was canceled on March 28, 1893, on account of the expiration of the statutory period. The defendant, however, in his entry papers denied that he had ever made prior entry; and re-affirmed this statement at the hearing.

The plaintiff, Montayo, settled on the land in controversy in 1889, and has since resided there. His improvements, consisting of a house, corral, fencing, breaking, etc., are worth about five hundred dollars. In the spring of 1890, he entered into a partnership with the defendant for the purposes of sheep raising and farming, the expenses and profits to be shared between them. Incidentally to this partnership and by per mission of the plaintiff, the defendant took up his residence on the land. For a while he lived in the same house with the plaintiff. Afterwards he fitted up a little house that had been built on the land by a former claimant, and moved into that. His improvements at the date of the hearing seem to have been almost entirely such as he had made in connection with the plaintiff under their partnership agreement.

On June 5, 1893, the plaintiff sent to the local land office, by mail, a non-mineral affidavit, executed before a notary public. In this affidavit he set forth, inter alia, that he was the identical person who is an applicant for government title" to the land in dispute, describing the same. With said affidavit he transmitted twenty-two dollars, in payment of the required fees and commissions. The receiver, on the same day, returned to the plaintiff the affidavit and money, saying in the letter of transmittal:

I received this morning the enclosed non-mineral affidavit, which I presume you intended to make a homestead entry, but you will have to have a full set made out, of which I enclose blanks; and I also state that these papers can not be made out before Mr. Block as a notary public, nor any other notary public.

On June 27, 1893, the plaintiff executed and forwarded preliminary homestead papers, which were returned, for the reason that the land was not open to entry, the defendant herein having made entry therefor on June 15, 1893.

It is not necessary to consider the testimony bearing on the question. as to whether or not the defendant had made a prior homestead entry, in view of the fact that even if it be found that he had made homestead entry in 1885 for another tract, as alleged, under which he had not perfected title, he would not be disqualified.

In the recent case of Hertzke v. Henermond (25 L. D., 82), it was held (syllabus) that:

Section 2, act of March 2, 1889, provides for the allowance of a second homestead entry in any case in which the applicant, prior to the enactment of the statute, made entry under the homestead law but has not perfected title thereunder, either before or since that time.

The non-mineral affidavit, sworn to before a notary public by the plaintiff and forwarded, with the fees and commissions, to the local office on June 5, 1893, can not be considered as a legal application, in fact it can hardly be called an application at all. Though it evidenced his desire and intention to enter the tract in controversy it had no more effect, so far as the segregation of the land was concerned, than an oral declaration of intention to enter would have had. (See Rhodes r. Crocker, 15 L. D., 249.) At the time, then, that the defendant made entry, this tract was vacant public land, subject to entry, and the case narrows down to the sole question as to whether or not the defendant acted in good faith in making this entry.

In the case of Lee r. Johnson (116 U. S., 48-52), the United States supreme court cites with approval the statement of the Secretary of the Interior that the element of good faith is the essential foundation of all valid claims under the homestead law.

In Russell r. Gerold (10 L. D., 18), it was said:

It must be remembered that good faith is required of every applicant for any part of the public domain.

In the case of Johnson . Johnson (4 L. D., 158), it was held that under no circumstances will the Department knowingly permit itself to be made an instrument to further the fraudulent designs of an individual who is seeking to acquire title to land to which he has no right.

See also Smith v. Kingdom et al., 11 C. L. O., 56; Dickson r. Schlater, 2 L. D., 597; Callahan . Burke, 4 L. D., 170; Dayton v. Hause et al., id., 263; Caldwell r. Carden, id., 306; Turner . Bumgardner, 5 L. D., 377; Emily Lode, 6 L. D., 223; Blake r. Marsh, 10 L. D., 612; Massey v. Malachi, 11 L. D., 191; Tustin . Adams, 22 L. D., 266; Shook r. Douglas, id., 646.

The mere fact that a party settles upon or makes entry for land embraced in the claim of a prior settler does not in itself warrant the finding of bad faith. A settler can not hold a piece of public land indefinitely by residence and improvements, without some claim of record, no matter how valuable his improvements may be. In order, however, that the subsequent claim may defeat the rights of the prior settler, two things must clearly appear: first, that the prior settler is guilty of laches in not following up his prior right within the statutory period, or is disqualified, and, second, that the subsequent claimant is acting in entire good faith. If either of these elements is lacking, the rights of the prior settler are not defeated by the subsequent claim.

It has been held by the Department that while a homestead entry of lands chiefly valuable for the timber or stone thereon is allowable, yet such entry should be carefully scrutinized in order to ascertain whether the entryman is acting in good faith. Porter r. Throop, 6 L. D., 691; Wright . Larson, 7 L. D., 555; John A. McKay, 8 L. D., 526. The same principle would apply to an entry of lands improved and made valuable by the money and labor of a prior settler who is in default in

the matter of filing his application. Such an entry is allowable, but it should be carefully scrutinized to ascertain whether the entryman is acting in good faith.

Applying these general principles to the case at bar, it is evident that the plaintiff was guilty of laches in not filing his application during the statutory period of protection accorded a settler, but can it be said that the defendant has acted in good faith? He went on the land in pursuance of a partnership agreement with the plaintiff for the purpose of farming and. sheep raising; he resided for a while in the plaintiff's own house, afterwards by permission of the plaintiff, in a small house that had been built on the land by a former claimant; he knew, as appears from the testimony, that the plaintiff intended to enter the land as soon as he could raise the money; he did not notify the plaintiff in any way that he intended to claim the land; he takes care not to arouse the plaintiff's suspicions, but slips off quietly to the land office and makes entry, and the first the plaintiff knows of it is when his application is returned with the information that the land has been entered by the man he has trusted and permitted to live on the land with him, part of the time in his own house.

The defendant's bad faith is apparent, and the Department will not lend its aid to the perpetration of such a fraud. Your office decision is accordingly affirmed, and Trujillo's entry will be held subject to Montayo's superior rights.

RAILROAD GRANT-INDIAN OCCUPANCY.

LEVI ET AL. . NORTHERN PACIFIC R. R. Co.

The occupancy of land by an Indian, at the date when the Northern Pacific grant became effective, and prior to the act of July 4, 1884, will not serve to except such laud from said grant, if at such time the Indian had not abandoned the tribal relation.

Assistant Attorney-General Van Devanter to the Secretary of the Interior, (W. C. P.)

December 11, 1897.

Acting Secretary Ryan referred to me, with request for an opinion upon the various questions therein presented, a letter from the Commissioner of Indian Affairs, and accompanying papers, in relation to the controversy between Levi, Three Mountain and Enoch, members of the Upper Middle bands of Spokane Indians, and the Northern Pacific Railroad Company, as to certain lands in the State of Washington.

Levi claims the SW. of Sec. 27, T. 26 N., R. 41 E., Three Mountain claims the NE. 4 of Sec. 33, T. 26 N., R. 41 E., and Enoch claims lots 1, 6 and 7 and the NE. 4 of the NE. of Sec. 35, T. 27 N., R. 41 E.; while the Northern Pacific Railroad Company claims all these tracts under its grant.

These tracts are all within the primary limits of the grant to said company, the map of definite location of the main line opposite them