and

claim of the heirs of Scott is made "in direct protest as against any all other claimants whatsoever"; and the action solicited is asked for "by and in virtue of the act of Congress approved 22nd June, 1860, ..and of the act of Congress supplemental thereto approved 10th June, 1872."

If the case presented came within the jurisdiction of the Department for examination and action, the provisions of the grant and the obligations created by treaty, and imposed by law, as referred to in the petition, would of course require and receive due consideration; but with this allusion here made thereto, attention is called to the fact that by the late decision of the Supreme Court of the United States in the cases of Slidell et al. v. Grandjean et al. (111, U. S., 412), it was expressly held, in relation to the second section of the act of June 2, 1858, referred to in said petition as confirming the claim of Donaldson and Scott, that the three claims, comprising together the Houmas granted tract, described in the report of the commissioners referred to in said section, of which that of Donaldson and Scott, No. 133, was one, were not confirmed by said section.

By reference to the act of June 22, 1860 (12 Stats., 85), under which the present application is made, it will be seen that the claims provided for therein were required to be presented, with the evidence in support of them and the formalities specified, to the commissioners designated, whose duty it was made to report the same, with their conclusion, to the Commissioner of the General Land Office, by whom they were to be reported to Congress for final action, with his approval or disapproval of the opinion of the commissioners; except that, in the event of his agreement with the commissioners in the rejection of a claim, the decision thereon should be final.

It will also be seen by reference to the act of June 10, 1872 (17 Stat., 378), that by the first section thereof the act of June 22, 1860, aforesaid was extended and continued in force for the period of three years from and after its passage only, namely, to June 10, 1875.

The present proceeding therefore is unauthorized and of no effect, for the two-fold reason that it is not in the form nor accompanied by the proofs and formalities required by the act under which it purports to have been taken, and that the act has expired by limitation, and ceased to be of force; and as there is no provision of law empowering this Department to adjudicate and confirm titles under claims of this character, the petition cannot be entertained.

OREGON DONATION-CLAIM BY A WOMAN.
ANNA HICKS.

As the benefits of Section 5, Act of September 27, 1850, are limited to "white male citizens," with the qualifications prescribed, the claim of a widow, who had proved the requisite four years' residence and cultivation, is held for cancellation. Assistant Commissioner Harrison to register and receiver, Roseburg, Oreg., August 15, 1884.

It appears by evidence on file here than Anna Hicks, a widow, arrived in Oregon in May, 1854, and settled upon 160 acres of land in August following, claiming it as a donation under the act of September 27, 1850 (9 Stat., 496), and supplemental legislation.

Mrs. Hicks, on the 7th of November, 1854, filed notice of her claim, which was numbered 5363, describing the lands settled upon as the E. of SE., and E. of NE. 4, Sec. 34, T. 18 S., R. 3 W., Oregon, and thereafter made proof of four years' residence on and cultivation of said tracts, and procured the issue of certificate therefor, which was numbered 1672.

The 5th section of said act of September, 1850, provides, "That to all white male citizens of the United States, or persons who shall have made a declaration of intention to become such, above the age of twenty-one years, emig rating to and settling in said Territory between the first day of December, eighteen hundred and fifty, and the first day of December, eighteen hundred and fifty-three," etc. The time within which a person might settle under this section was extended to December 1, 1855, by the 5th section of the act of February 14, 1853 (10 Stat., 158). As Mrs. Hicks is not a white male citizen of the United States, she could not claim any of the benefits conferred by the provisions of the 5th section of said act of 1850, and for this reason her claim to said lands is held for cancellation, subject, however, to her right of appeal. *

SETTLEMENT UNSURVEYED LAND.

LITTLE v. Durant.

An act of settlement upon unsurveyed land must be of such a charater, and so open and notorious, as to be notice to the public generally of the extent of the claim.

Acting Secretary Joslyn to Commissioner McFarland, August 16, 1884. I have considered the case of Orrin C. Little v. Levi R. Durant, involving the right to Lot 4 of Sec. 2, T. 34 N., R. 7 W., N. M. M., Durango, Colorado, on appeal from your decision of December 7, 1883, awarding said tract to Durant.

The record shows that Durant made homestead entry No. 3, for the S. of SW. of Sec. 35, T. 35 N., and Lots 3 and 4 of Sec. 2, T. 34 N.,

R. 7 W., N. M. M., on November 3, 1882, alleging residence upon the land applied for since October 20, 1878.

On November 9, 1882, Little made application to enter, under the homestead laws, said Lot 4 and the SW. of NW. of Sec. 2 and Lot 1 of Sec. 3, T. 34 N., R. 7 W., N. M. M., alleging residence upon said land since May 10, 1881.

Little's application was rejected by the register and receiver because of conflict with said homestead entry, and, on appeal, you affirmed their decision and allowed Little to contest the right to said Lot 4, should he so desire. On June 9, 1883, Little filed his affidavit for contest, alleging priority of settlement upon the land in dispute. On February 19, 1883, a hearing was had before the register and receiver, at which both parties appeared with their witnesses, and were represented by counsel. From the testimony there taken, the register and receiver were of the opinion that said homestead entry should be canceled, as to said Lot 4, and that said Little should be allowed to embrace the same in his homestead entry. Durant appealed, and you reversed the decision of the register and receiver, as above stated.

It appears that both applications were made, within the time prescribed by law, for land which, at the date of the alleged settlements, was unsurveyed. The evidence shows that Durant, by his agent, John W. Moss, bought the improvements and possessory right to the claim of Willard Dunham, and moved upon the land about October 20, 1878. Durant's residence is not upon the tract in dispute.

The contestant, Little, settled upon the land applied for by him on or about May 10, 1881, having purchased the improvements and possessory right to the same from one John Ballinger, who, at the time of the sale, showed him the corners and boundary lines of his claim. The testimony of Little shows that the tract in dispute was included within the claim purchased by him from Ballinger. It also appears that Little built two log houses, one 16 x 18 feet and one 18 x 22 feet connected by a roof, a log stable, and a chicken house, all on the lot in question, and that he cultivated about one acre in the year 1881. His improvements are worth from $135 to $350. The essential inquiry in this case is, Which is the prior settler? The burden of proof is upon contestant, Little; (Ballard v. McKinney, 1 L. D., 483).

Durant contends that since his said purchase from Dunham he has always claimed 160 acres in a square, one-half lying north and one-half south of the line dividing townships 34 and 35, and that near the southwest corner of his claim stands a blazed pine tree marking that corner, while a fence marks the northern boundary of his claim. There is also another fence extending along the township line, and across a narrow strip of the northeast corner of said Lot 4 to a bluff on Pine river. It is insisted by Durant that he had such an occupation of the tract in question at the date when Little settled and commenced building thereon, as to put him upon notice that he (Durant) claimed

the land in question; and, in addition thereto, that Little was in fact notified that he claimed said lot as a part of his homestead while he was building his first log house upon the land.

No inflexible rule can be formulated as to what shall constitute occupancy and possession by a settler. The Assistant Attorney-General, Mr. W. H. Smith, in the case of Allman v. Thulon (1 C. L. L., 690), cited by you, says that "a person is a settler who, intending to initiate a claim under any law of the United States for the disposition of the public domain, does some act connecting himself with the particular tract claimed, said act being equivalent to an announcement of such his intention, and from which the public generally may have notice of his claim. Such act constitutes a 'settlement,' and it may be by going upon the land, and cutting down trees, building a house, fencing the tract, etc." While it is true, as was held by the United States Supreme Court in the case of Ellicott v. Pearl (10 Peters, 412), that, where land is described by metes and bounds in a conveyance, "to constitute actual possession it is not necessary that there should be any fence or enclosure of the land," it is, nevertheless, essential that the act of settlement upon unsurveyed land must be of such a character and so notorious that the "public generally" may have notice of the settler's claim. In Brumagim v. Bradshaw (39 Cal., 24, 46) the supreme court of California held that "the mere intention to occupy land, however openly proclaimed, is not possession. The intention must be carried into actual execution by such open, unequivocal, and notorious acts of dominion as plainly indicate to the public that the person who performs them has appropriated the land and claims the exclusive dominion over it." While the testimony is conflicting, I think the weight of the evidence shows that Durant failed to do any act equivalent to an announcement of his intention to claim the land in dispute.

The evidence relied upon to prove the alleged notice to Little of Durant's claim is the testimony of one John Dowden, who was in the employment of Durant, and one J. A. Epperson, who was present and engaged in the alleged conversation. Dowden testifies that he told Little that he thought he was building on Mr. Durant's claim, and that Little told him that he thought he was not, that if he was he would move down, and that he did not want anybody to get in between him and Durant. Dowden further testifies that he told Little that Durant claimed to a big pine tree that was down the road about 250 yards. The testimony of Dowden is corroborated by that of Epperson, who also states that one Jesse Hammond was present at the time the alleged conversation took place. Jesse Hammond testifies:-"Dowden and Epperson came there and asked me who was putting up the house? I told them that I was helping Mr. Little. Mr. Epperson asked if I did not think we were putting it pretty close to Mr. Durant's. I told them that I thought not, as John Ballinger had told me that he claimed this forty of land where this house now stands. Epperson told me that there was a big

tree south, but did not say what one, or how it was marked." Hammond also states that neither Epperson nor Dowden addressed his conversation to Little. Hammond is coroborrated by the testimony of Little. Durant admits that he met Little several times after the alleged conversation, and never spoke to him about the tract in dispute.

It does not appear that Dowden and Epperson were sent by Durant to notify Little that Durant claimed the tract in question. They showed Little no boundary lines, and, although Little met Durant frequently and spent the night with him at Durango after said conversation, not one word was said about Little's settlement on said tract. The conversation relied upon is too vague and uncertain to be considered actual notice to Little of Durant's claim to the tract upon which he was building his residence.

It appears that Little is duly qualified to make a homestead entry, and has been an actual settler, residing with his family upon said Lot 4, improving and making it his home continually since May 10, 1881. From all of the facts and circumstances in the case, after careful consideration, I am of the opinion that Little has acted in good faith, and that he has a superior right to the tract in dispute. I therefore reverse your decision, and direct that said homestead, so far as the same covers said Lot 4, be canceled, and that Little's said application be allowed.

TOWN SITE-PRE-EMPTION CONFLICT.

JOHN PHILLipson.

The incorporation of a town with limits inclosing 5,760 acres will not bar pre-emption entry within said limits, on land not actually settled upon and used for business and municipal purposes.

Assistant Commissioner Harrison to register and receiver, Watertown Dak., August 18, 1884.

I have received your letter of the 7th inst., transmitting supplemental proof in support of John Phillipson's pre-emption final proof upon D. S. 11,604, covering SE. of Sec. 35, T. 110, R. 54, as called for by my letter of May 8 last. The land is included within the limits of the incorporated town of Brookings.

Phillipson filed May 9, alleging settlement May 3, 1883, and made proof November 12 last. The town of Brookings was incorporated by act of the Territorial legislature in the year 1883, the day and the month not being furnished. The limits of said town, as defined by said act, include all of Sections 22, 23, 24, 25, 26, 27, 34, 35, and 36, T. 110, R. 54, being 5,760 acres. With your letter you transmit a diagram duly certified to by the register of deeds, of the proper county, showing that said town proper is located and laid out upon the SW. Sec. 23, NE. 4 NE. 4 of NW. 4, and N. of SE. 4, Sec. 26.

of SE. 4,

The near