George Bennett filed pre-emption declaratory statement for lots 1, 2, 3 and 4, section 9, said township and range, June 15, 1885, alleging settlement thereon October 2, 1884.

John W. Dollison filed pre emption declaratory statement for lot 2, and other land in section 9, same township and range May 27, 1885, alleging settlement thereon May 1, 1885, and Charles Powell filed preemption declaratory statement for lots 2 and 3 and other land in section 9, said township and range, June 1, 1885, alleging settlement October 15, 1883. This filing was relinquished and canceled March 17, 1886. It will thus be seen that lots 2, 3 and 4, are in controversy.

On July 14, 1885, Cravens gave due notice by publication, of his intention to make final proof for the land claimed by him, before the regis ter and receiver on August 29, 1885. During the period of publication of said notice, viz., on August 17, 1885, your office instructed the regis ter and receiver to suspend all entries and disposal of public land in said township on account of alleged erroneous survey. This order was received by them on August 25, 1885.

On the day designated for submitting his final proof Cravens appeared at the local office with two of his advertised witnesses, Wm. Gristy and D. E. Baldwin, and submitted said proof, which was done in order to preserve any rights that Cravens might have in the premises. The payment for the land was tendered, also the fees for reducing the testimony to writing. The fees were accepted by the receiver, but the tender of the purchase money was declined, and the final proof rejected by the local officers on account of the instructions contained in your office letter of August 17, 1885. No other reason was assigned for rejecting the proof or declining to receive the purchase

money.

The proof shows that Cravens was a duly qualified pre-emptor aud had complied with the requirements of the law in the matter of resi dence and improvements, and so far as the record shows, the final entry should have been allowed had it not been for your said orders, or the existence of some adverse claim, which rendered necessary an investigation to determine the rights of the opposing parties.

The proof appears regular on its face. The register before whom it was taken, certifies that each witness was a person of respectability and that the testimony of each was read to him before being subscribed. He also certified that each question and answer in the claimant's testimony was read to him before being subscribed. At the hearing in the case testimony was introduced by the attorney for Bennett (who was the register at the time the proof was taken) to the effect that said proof was not taken in the regular way, that the witnesses were not sworn before the questions were asked. On this point, however, I think the preponderance of evidence shows that the proof was regu larly taken, and it is but just to assume, in the absence of satisfactory evidence to the contrary, that the sworn officer of the government did his duty and that his certificates, made as such officer, were true.

It is contended that the proof of Cravens is illegal and void for the reason that it was taken at the time the order suspending entries in the township was in force.

By order from your office dated May 3, 1887, the plat of T. 6 S., R. 89 W., was ordered to be re-instated in the local office, and it was reinstated June 15, 1887.

On May 17, 1887, the local officers transmitted a petition by Cravens asking that a hearing be ordered between the various claimants to the lands with notice to all, and asking that the proofs submitted and on file in the local office be received without further publication of notice of intention to make proof.

In reply to the inquiry of local officers, your office on May 28, 1887, issued instructions, a portion of which were as follows:

You state that on July 14, 1885, Elisha B. Cravens published his intention to make final proof as a pre-emptor on August 29, following, which being taken in pursuance thereof, entry was refused on account of the suspension in question. At the time of taking final proof several parties appeared to contest but all proceedings were stayed. You inquire if you shall call upon Cravens for new publication and proof and in this event will six months prior to date be required. Further, you state that several similar cases are now pending.

You are advised that should it be the fact that the proof of a pre-emptor offered under circumstances described, be satisfactory to you in all regards, the fact that the township was temporarily withdrawn from disposition at date thereof, should not preclude its acceptance, the withdrawal being now revoked, upon the filing of the new pre-emption affidavit covering entry.

In my opinion these instructions were just and proper. As between the government and the claimant there is no reason why a further proof should be required, if the proof submitted is regular, and in couformity to the rules and regulations of the Department.

The parties to this record had filed their claims, and have been allowed full opportunity to maintain their rights; the status of the proof had in no way interfered with their rights.

At the time Cravens submitted his final proof, Bennett, Dollison and Powell appeared and filed objection to the same, but owing to the suspension of the township no hearing took place at that time, but under the instructions from your office dated May 28, 1887, a hearing was ordered between all parties in interest. Powell and Dollison made default, but Bennett appeared at the trial which extended over a period of nearly one year, during which time a vast amount of testimony was taken, much of it irrelevant, and most of it conflicting to an unusual degree.

The evidence clearly shows that the contestant Bennett, entered upon the land on October 2, 1884, and erected his saw mill thereon for the sole purpose of doing business, that of sawing lumber and selling the same. According to his own statement at the time he went upon the land, he had no intention of claiming the same under the pre-emption law for agricultural purposes. Should Cravens claim be rejected, Ben

nett can not be regarded as a qualified pre-emptor, as he entered upon the land for business purposes only, and has used the the limited tract in his possession for that purpose. Fouts v. Thompson (6 L. D., 332) and (10 L. D., 649).

The evidence shows that Cravens was a qualified pre-emptor, that he settled on the land as alleged and up to the time of submitting his final proof, had complied with the requirements of the law as to residence and improvements.

It is alleged however, that this settlement was not made in good faith for his own use and benefit.

One witness for the contestant J. C. Brown, testified in substance that Cravens settled upon the land in dispute west of the township of Glenwood Springs at the instance of J. F. Clement, the surveyor who surveyed the township, for the benefit of one Whipple, who, was to pay him $500, for holding said land for a period of six months when he was to deliver up possession to Whipple, he was not however, to file upon or to make proof for the same. Brown also testified he was to hold land on the south of the townsite, on the same terms, for the same party. Both Brown and Cravens were at work at the time for Clement assisting him in surveying.

Whipple died soon after, and there is no evidence showing that he ever attempted to carry out the alleged agreement.

Brown, who admits his enmity against Clement, and who states that he had a difficulty with Cravens, but that he has "no personal ill-will against him," is not corroborated on this point by any other witness.

Cravens denies in the most emphatic manner the statement of Brown. Clement also denies most positively the testimony of Brown on this point.

Brown testifies that he held the land settled upon by him south of the town until some time in July, 1884, when he became satisfied that Clement and Cravens were not the kind of men he cared to be associated with, and he abandoned the claim. Notwithstanding this statement, the evidence shows that on June 21, 1884, Cravens filed his notice with the county recorder claiming such land upon which Brown had settled, in addition to his tract on the west of the town, and this filing seems to have been the result of a friendly understanding between the two. It is also shown that Clement and Brown were associated together in business for weeks after the time the latter asserts that the former was a man with whom he did not care to be associated. But subsequently a quarrel arose between them.

In your decision of August 10, 1889, the testimony of Charles Powell, a witness for Bennett, is discussed at length. Without repeating the argument, I will say that I concur in the conclusion, that said evidence goes far to establish the position that the settlement of Cravens couid not have been in the interest of Whipple.

I have given careful consideration to the irreconcilable and unsatis

factory testimony of Brown, Cravens and Clement, and have endeav ored to give due weight to other testimony bearing directly or indidirectly on the question at issue between these parties. It is true that some incidents and facts considered separately, cast a suspicion upon the settlement of Cravens, that the same was not made for his own use and benefit. He swears that it was. To hold to the contrary, is to give controlling weight to suspicions aroused by testimony in relation to certain detached facts and transactions. But a settler's right to public land can not be denied on suspicion, and taking all the evidence into consideration, I am unable to reach the conclusion that the statements of the witness Brown should be taken as true as against the positive statement of Cravens and Clement. Cravens was evidently a man of intelligence. He was assisting the surveyor in surveying the town, and in that capacity he ascertained that there would be fractions on the west and south of the townsite. As an intelligent man he could not fail to be convinced that land immediately adjoining a growing town would soon become valuable, and there is nothing more reasonable than that he should strive to secure that land for his own benefit.

It appears that Whipple and Cooper who were alleged to be inter ested in the townsite and surrounding lands are dead, and much evi dence was introduced for the purpose of showing that Cravens is seek ing to enter the land for the benefit of Clement, and also that his counsel Taylor is interested in the entry inasmuch as Cravens is heavily in debt to him for money borrowed, and for professional services.

It is also shown that since the date of final proof August 29, 1885, Clement has at various times acted as agent for Cravens and has served and befriended him. Clement swears that he never had any interest in the land in question, neither in the past nor at the time of trial, and that he has been compensated by Cravens for services rendered.

The entry that Cravens is seeking to make, if allowed, must be based upon the final proof submitted August 29, 1885.

That proof showed compliance with the law sufficient to justify an entry. The Department will consider testimony in relation to transac tions subsequent to the date of submitting final proof when the same is calculated to throw light upon the intention of the claimant prior to said date, but such evidence in order to prevent the consummation of title, should be clear and convincing. The evidence in this case is not of that character.

In your office letter of December 30, 1889, you discuss at length the motion for a rehearing filed by contestant September 23, 1889, and rejected the same. I concur in your views and action on that motion.

In the decision of the local officers, and in the various decisions of your office, numerous points were discussed, some of which I have referred to, but I have not deemed it essential to refer to them all.

The land involved has become valuable from the fact it adjoins the town of Glenwood Springs, and the inhabitants of that town are anxious

that a final decision in the case should be rendered in order that needed improvements, in the way of extension of streets, etc., may be made, hence at the solicitation of all parties in interest the case has been taken up for action out of its regular order.

It is to be regretted that the evidence before me is not more conclusive and satisfactory. I have, however, given it careful consideration, and in view of all the facts presented I am of the opinion that Cravens should be allowed to make payment and entry for the land upon the proof submitted by him.

In reaching this conclusion, I am influenced to a considerable extent by the decision of the local officers. The record indicates that they gave careful personal attention to the trial and the examination of the numerous witnesses. They saw them on the witness stand, and heard the conflicting statements, they must have been thoroughly acquainted with the character and reputation of most of those who testified. The land in controversy was under their immediate observation and inspection. Under all the rules and principles of law, those officers were especially qualified to render an intelligent and just decision in the case. Kelly v. Halvorson (6 L. D., 225); Austin v. Thomas (id., 330).

The decision of your office sustaining that of the local officers seems to have been based upon a thorough examination of the testimony.

In the case of Scott v. King (9 L. D., 299), it was said "the evidence being conflicting in its character and upon which fair minds might reasonably differ as to the conclusions that should be drawn therefrom, and it having been passed upon by two tribunals as triers of the facts, and each concurring, I do not feel warranted in reversing your action." These remarks apply with equal justice and force in the case at bar. Your decision of August 10, 1889, is, therefore, affirmed.

BRADY v. CENTRAL PACIFIC R. R. Co.

Motion for review of the departmental decision, rendered in the case above entitled November 21, 1890, 11 L. D., 463, denied by Acting Secretary Chandler, June 22, 1891.

OKLAHOMA LANDS-TOWNSITE ENTRY-SETTLEMENT RIGHTS.

GUTHRIE TOWNSITE v. PAINE ET AL.

A townsite entry cannot be allowed where it is apparent that the application is in the interest of a fraudulent speculation.

A soldier's declaratory statement filed on April 22, 1889, through an agent who was in the Territory prior to twelve o'clock, noon, of said day is illegal and void. The entry of one who is lawfully within said Territory prior to noon, April 22, 1889, but takes advantage of his presence therein to secure a settlement right in advance of others, is in violation of the statute opening said lands to entry.