Upon the evidence submitted the local land officers held that it was not competent to consider the acts done by the claimant on said tract prior to the date of said entry, for the reason that prior to that time he could not acquire any right to said tract as against the United States; that since the date of his entry Gilbert has not resided upon said tract, and that his entry should be canceled. On appeal, your office concurred with the opinion of the local land officers that the acts of the entryman prior to the date of the entry ought not to be considered; that the evidence showed that the entryman had not acted in good faith, and that his said entry should be held for cancellation.

It is insisted by the appellant that said decision is erroneous in holding

(1) That the testimony relative to improvements made upon the tract during its withdrawal should not be considered as material;

(2) In holding that Gilbert did not act in good faith; and (3) In not dismissing said contest.

While it is true that the entryman could acquire no rights as against the United States by virtue of his acts done prior to the date of said entry yet it does not follow that upon a charge of abandonment, such acts showing residence and valuable improvement upon the land are not proper subjects of inquiry.

This Department held in the case of Geer v. Farrington (4 L. D., 410), that as between settlers upon tracts covered by an uncanceled entry priority of settlement may be properly considered. It has been repeatedly held by the courts and this Department that it is immaterial whether the settler purchases improvements already upon the land or caused the same to be made after settlement. Timmons v. Gleason (2 C. L L., 551); Pruitt v. Chadbourne (3 L. D., 100); Kurtz v. Holt (4 L. D., 56); Lansdale v. Daniels (10 Otto, 113).

It will be observed that Gilbert was not a trespasser upon said land prior to the withdrawal. Peterson v. Kitchen (2 C. L. L., 552). His valuable improvements were made while he had a contract of purchase with said company, he had lived with his family on the land continuously for a longer time than was necessary to acquire title if said tract had been relieved from the withdrawal, and at the date of the hearing his family was living upon the land.

It is strenuously insisted by counsel for the contestant that said Gilbert committed perjury when he made said homestead affidavit, for the reason that at that time his family was not living on the land. But it has been repeatedly held by the Department that residence is estab lished from the moment the settler goes upon the land with the intention in good faith of making his home there to the exclusion of one elsewhere. Humble v. McMurtric (2 L. D., 161); Grimshaw v. Taylor (4 L. D., 330). If Gilbert was on the land when he made said affidavit, and had the bona fide intention of continuing his home there, then in contemplation of law his residence was on said tract, and no perjury would

be committed if his family was temporarily absent. It is shown by the affidavit of a physician and by other testimony that the wife of said Gilbert returned to the land as soon as she was able, and although the testimony shows that Gilbert went to the land only three or four times prior to the initiation of said contest, it does not sufficiently appear from a careful examination of the whole record that he in fact intended to or did abandon said tract.

It follows from the foregoing that said decision is erroneous and must be reversed.

TIMBER DEPREDATIONS-SETTLEMENT OF CLAIMS.

A claim of the government arising from timber depredations is for an unascertained amount which the Secretary of the Interior may properly find and determine, and effect settlement for with the trespasser by receiving payment in full. The amount of such a claim having been duly ascertained and fixed, there is no authority in the Department to compromise the same by receiving in payment therefor a less sum than the amount found to be due.

Secretary Lamar to the Secretary of the Treasury, November 15, 1886.

I am in receipt of a communication from the Solicitor of the Treasury of May 13, 1886, relating to the question of the authority of this Department to compromise and settle timber depredation cases, referring to the opinion of the Attorney General, submitted January 8, 1880, upon this subject.

In his communication (with reference to this opinion) the Solicitor of the Treasury says: "I am informed that since the date of this letter from the Attorney General, a copy of which was furnished your Department about the time it was received, all applications for compromise of claims in favor of the United States arising from trespasses have been considered and disposed of as provided for in Section 3469, R. S." (excepting certain cases therein referred to). Then referring to the regu lations issued by the Commissioner of the General Land Office, authorizing special agents to receive and consider propositions to settle claims in favor of the United States arising from trespass, where the same. were not wilfully committed, says: "I know of no authority by which an executive officer can compromise and settle a claim in favor of the United States, except that conferred by Sections 295, 409, 3229 and 3469, Revised Statutes." He brings the subject to my attention with a view of securing some uniform action. To this end I submitted the communication to the Commissioner of the General Land Office for report, which is now before me, a copy of which I also transmit herewith.

The Commissioner of the General Land Office, doubting the authority of that office or of this Department to settle and compromise such cases, recommends that the practice heretofore followed of entertaining prop ositions in that office, and this Department for settlement of timber trespasses be discontinued.

While I concur fully in the opinion of the Solicitor of the Treasury that there is no authority by which an executive officer can compromise a claim in favor of the United States, except that conferred by section 3469, I do not consider said section as a restriction upon the authority of any executive officer to settle a claim in favor of the United States where such settlement is not the result of a compromise, but a settlement in full payment of the entire amount due the government on such claim, and where such settlement is made by the Department having control and jurisdiction of the subject matter.

The authority conferred by Section 3469 is alone necessary to be considered in the investigation of this subject. That section provides that, "Upon a report by a district attorney, or any special attorney or agent having charge of any claim in favor of the United States, showing in detail the condition of such claim, and the terms upon which the same may be compromised, and recommending that it be compromised upon the terms so offered, and upon the recommendation of the Solicitor of the Treasury, the Secretary of the Treasury is authorized to compromise such claim accordingly. But the provision of this section shall not apply to any claim arising under the postal laws."

After a careful consideration of the question of authority of an executive officer to compromise a claim in favor of the United States, except as provided for by the section above quoted, and of the character of claims arising from timber depredations and the authority to settle the same as exercised by this Department, I have been unable to concur with the views of the Solicitor of the Treasury, or the recommendation of the Commissioner of the General Land Office, that no proposition for the settlement of timber depredation claims should in the future be entertained by this Department, or that the settlement of such claims effected through it is the exercise of a doubtful authority.

It seems to me apparent that the difference of opinion as to the authority of this Department to settle timber depredation claims arises from the use of the words "compromise" and "settlement" in the same sense, or else the impression must prevail that the settlement of such claim, as now authorized and executed by this Department, is a settlement made upon a compromise of a specific amount found to be due. Speaking of the regulations issued by the Commissioner and addressed to special agents, the Solicitor of the Treasury says, that such regulations "contemplate that they may receive and consider propositions to settle claims in favor of the United States arising from trespass where the same were not wilfully committed," and adds "I know of no authority by which an executive officer can compromise and settle a claim in favor of the United States except that conferred by Sections 295, 409, 3229, and 3469, R. S." If it is intended by this that no authority exists in this Department to settle a claim upon a compromise of the amount found to be due, I concur in that view; but if it is intended that there is no authority in this Department to ascertain and determine 2278 DEC

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what amount is due, and to settle such claim by receiving the full amount so found to be due, I do not concur.

A compromise implies a mutual concession, or an agreement to receive in payment a less sum than the amount found to be due; and it is in this sense that the term is employed in Sec. 3469. I do not understand that the settlement of such claims as authorized by this Department is a settlement of that character.

The general power and authority conferred upon this Department respecting public lands includes the duty and authority to protect from depredation the timber thereon, and to seize what is cut and taken away from them wherever it may be found. It follows that in the exercise of that power and duty this Department has full authority to ascertain and determine under the law the extent of such depredation, the value of the timber cut and destroyed, the character of the trespass, and when the amount of the claim has been ascertained, to receive pay. ment of the full amount of such claim in satisfaction thereof. Wells v. Nichols (104 U. S., 447); Wooden Ware Company v. United States (106 U. S., 432).

In the execution of this power and duty, special agents have been appointed, who are directed to investigate and report upon all cases of timber trespass, and to receive propositions for settlement of the same. The instructions issued to special agents require the trespasser to submit with his proposition for settlement a sworn statement showing the character of the trespass, the amount of the timber, its value when standing in the tree, when felled and cut into logs, when delivered at the landing, when delivered at the mill, when manufactured into lumber, and its value in its position and condition when purchased by the party in whose possession it was found.

In respect to the character of the trespass, the Supreme Court, in the case of Wooden-ware Company v. The United States, supra, have an nounced certain rules which have been embraced in the instructions to special agents. Under the sworn statement so furnished, and the rules adopted for their guidance, the special agents investigate and report upon the claim, by which means the amount due the government is officially ascertained and determined. A claim due the government arising from timber depredations is a claim for an unascertained amount, which the Secretary of the Interior, through the officers and agents of this Department, finds and determines. A settlement made with the trespasser by receiving payment of the amount so found to be due is in no sense a compromise, but payment in full of the claim due to the government; and I can see no reason for invoking the action of the ju dicial department to ascertain and determine that which the executive department in the scope of its authority has already determined, or to enforce payment by suit when the trespasser offers to discharge his liability without suit.

The special agents may report the character of the trespass, the amount and the value, or either of these facts, different from that shown by the sworn statement of the trespasser. As for instance, the trespasser may claim that he is an innocent purchaser from an unintentional trespasser, and may offer to pay the value of the timber at the time when taken. The special agent may report that the trespass was willful, of which the purchaser had notice, and may recommend settlement at the full value of the property at the time and place of demand. Upon further investigation by the special agent, or upon examination by the Commissioner or the Secretary, it may be determined that the purchase was made without notice of wrong, but from a willful trespasser, and that the timber should be settled for at the value of the property at the time of purchase, to which the trespasser may agree and settle. While the amount paid may be greater than the amount originally offered, and less than the amount originally reported by the govern ment officials, it is not a compromise of the claim, but a determination from the facts of the case of the amount due the government.

If after that amount has been ascertained, the trespasser either de clines to pay, or is unable to pay it, but offers a less amount, there is no authority in this Department to compromise the claim, but the future control of the case should be left with the Department of Justice. This question was incidentally passed upon by the Solicitor General, acting as Attorney General, in his letter of August 23d last, addressed to this Department, relative to the seizure of timber taken from the public lands, from which I infer that the Department of Justice concurs in the view herein expressed; but as this question was not directly involved in the matter referred to, I do not feel at liberty to claim it as authority for this opinion.

Being satisfied that this Department not only has authority, but that it is its duty to take jurisdiction of and to settle all such cases in the manner herein stated, I have for this reason so fully presented the matter for your consideration, with the request that if you should not agree in this opinion you will concur in submitting the matter to the Attorney General for his opinion thereon.

AGRICULTURAL COLLEGE LANDS-RES JUDICATA.

STATE OF KANSAS.

Final adjudications of the Department will not be disturbed on the mere allegation of error in construing the law.

Secretary Lamar to Commissioner Sparks, October 25, 1886.

The act of July 2, 1862 (12 Stat., 503) granted to the several States which would provide colleges for the benefit of agriculture and the mechanic arts a quantity of land to be apportioned to each State, equal to thirty thousand acres, for each senator and representative in Congress to which the States were respectively entitled by the apportion