Opinion of the Court.

and unknown, and none of the inhabitants were then settled on said land or claiming any part of it; and that on the organization of Coconino County the land in suit became a part thereof, and the defendant Jones became probate judge of the new county and the successor to French in the trust. The plaintiff asked a decree declaring that the settlement and occupancy of said land, at the date of survey, by qualified preëmptors, excluded the same from the reservation for school purposes; that, by reason of defendant's purchase of the improvements and her own occupancy and improvements, a right of entry attached thereto in her; that the refusal of the local officers to allow her filing in 1885 was unlawful; that the act of February 13, 1889, did not take away any of her rights, but, if anything, released any claim the Territory of Arizona might have to the land, and that, under the townsite laws referred to in said act, her rights as a settler were and are superior to those of the inhabitants of Flagstaff, as to the particular part of the section covered by her claim; and that the said patentee, as trustee for the said inhabitants, in so far as the land claimed by the plaintiff is embraced in said patent, should be decreed to be the trustee of the plaintiff, and be required to deliver a deed for the same to the plaintiff. The defendant demurred to the complaint on the general ground that it failed to state facts sufficient to constitute a cause of action. This demurrer was sustained by the District Court. The plaintiff elected to stand on her complaint, and a final decree was entered dismissing the bill. The plaintiff thereupon appealed to the Supreme Court of the Territory, where the judgment below was affirmed, from which decree an appeal was taken and allowed to this court.

Mr. S. D. Luckett for appellant. Mr. Henry N. Copp was on his brief.

Mr. Edward M. Doe for appellees submitted on his brief.

MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

Opinion of the Court.

Section 1946 of the Revised Statutes enacted that sections numbered sixteen and thirty-six in each township of the Territories of New Mexico, Utah, Colorado, Dakota, Arizona, Idaho, Montana and Wyoming should be reserved for the purpose of being applied to schools in the several Territories named, and in the States and Territories thereafter to be erected out of the same. Section 2275 is as follows: "Where settlements with a view to preëmption have been made before the survey of the lands in the field, which are found to have been made on section sixteen or thirty-six, those sections shall be subject to the preëmption claim of such settler; and if they, or either of them, have been or shall be reserved or pledged for the use of schools or colleges in the State or Territory in which the lands lie, other lands of like quantity are appropriated in lieu of such as may be patented by preemptors.

In 1878 a survey in the field was made of the township in which the lands in dispute were situated, which survey, together with a plat of the same, was approved February 3, 1879. At the time of the survey McMillan and Farriner were residing on and cultivating lands constituting a portion of section sixteen, and in 1883 Emma J. Gonzales, the plaintiff in error, purchased from said occupants their improvements, took possession of the land, and erected additional improvements thereon.

February 13, 1889, 25 Stat. 668, c. 150, Congress enacted the following law:

"A bill for the relief of the occupants of the town of Flagstaff, county of Yavapai, Territory of Arizona.

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the probate judge of Yavapai County, Territory of Arizona, be, and he is hereby, authorized to enter, in trust for the occupants and inhabitants of Flagstaff for townsite purposes, the south half of section sixteen, township twenty-one north, range seven east, Gila and Salt River meridian, in the Territory of Arizona, subject to the provisions of sections twentythree hundred and eighty-seven, twenty-three hundred and

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eighty-eight and twenty-three hundred and eighty-nine of chapter eight of the Revised Statutes of the United States relating to townsites.

"SEC. 2. That upon the passage of this act the Territory of Arizona, through its proper officers, shall be, and hereby is, authorized to select as indemnity to said land, and in full satisfaction thereof and for the purpose stated in section nineteen hundred and forty-six, one half section of public lands at any office in said Territory, said selections to be made according to legal subdivisions."

On January 17, 1889, E. W. French, as probate judge of said county, in trust for the inhabitants of the town of Flagstaff, filed a declaratory statement for the entry of said south half of said section sixteen, and on July 29, 1889, the plaintiff in error appeared before the local land officers and filed a protest against the allowance of said entry by the said probate judge. At the hearing before said local land officers the land was awarded to the said probate judge in trust for the inhabitants of Flagstaff, and the plaintiff appealed successively to the Commissioner of the General Land Office and to the Secretary of the Interior, by both of whom her right of entry was denied; the land was awarded to said probate judge, and subsequently a patent was issued to him in trust for the occupants and inhabitants of the said town of Flagstaff.

As the claim of the plaintiff in error to the land in question was passed upon by the proper local officers of the land department, and subsequently, upon appeal, by the Commissioner of the General Land Office, and, upon a further appeal, by the Secretary of the Interior, and as the result of the contest was the granting of a patent to the probate judge of the county of Yavapai as trustee of the inhabitants of the town of Flagstaff, the plaintiff, to maintain her bill, must aver and prove either that the land department erred in the construction of the law applicable to the case, or that fraud was practised upon its officers, or that they themselves were chargeable with fraudulent practices. Johnson v. Towsley, 13 Wall. 72; Moore v. Robbins, 96 U. S. 530; Steel v. Smelting Co., 106 U. S. 447.

Opinion of the Court.

Recognizing this well-settled rule, the plaintiff contends that the land department and the Supreme Court of Arizona erred in failing to find, as matter of law, that the conceded settlement of McMillan and Farriner on the land in question, prior to the survey in the field, and their occupancy of the same with the intention of claiming said land under the preëmption law, excluded said land from the reservation for school purposes. In other words, the contention is that mere settlement and cultivation upon any portion of sections sixteen and thirtysix before the same shall be surveyed exclude such portion from the school grant, and Sherman v. Buick, 93 U. S. 209, and Mining Co. v. Consolidated Mining Co., 102 U. S. 167, are cited to that effect.

But those were cases decided under the act of March 3, 1853, c. 145, 10 Stat. 244, under which the right of the State of California to school lands arose, and it was held that, by the express terms of the seventh section of that act, where there was either a dwelling house or the cultivation of any portion of the land, on which some one was residing and was asserting claim to it, the title of the State did not vest, but the alternative right to other land as indemnity did.

The language of the seventh section of that act, "Where any settlement, by the erection of a dwelling house or the cultivation of any portion of the land, shall be made upon the sixteenth and thirty-sixth sections before the same shall be surveyed, other land shall be selected by the authorities of the State in lieu thereof," is widely different from that of section 2275; "Where settlements, with a view to preëmption, have been made before the survey of the lands in the field, which are found to have been made on sections sixteen and thirty-six, those sections shall be subject to the preemption claim of such settler, and . other

lands of like quantity are appropriated in lieu of such as may be patented by preemptors." And Mr. Justice Miller, in delivering the opinion of the court in Mining Co. v. Consolidated Mining Co., 102 U. S. 175, was careful to say that "the qualifying incidents," prescribed in the act of 1853, "are not the same required under the general preëmption law," but

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are intended "to convey the idea of a settlement and a settler according to the terms of the statute under consideration."

The claim of the plaintiff in error, therefore, to a right of preëmption was fatally defective because her vendors and predecessors in title had failed to make or file an actual entry in the proper land office. As they did not choose to assert their rights by filing a declaratory statement, or by making an entry as preëmptioners, their mere possession did not prevent the rights of the Territory from attaching to the school sections when the survey was made. Nor did the plaintiff in error lawfully succeed to any possessory rights they may have had, as against the United States, because such rights were merely personal to the settler, and, under § 2263, Rev. Stat., were not assignable to the plaintiff in error. She did not herself, after taking possession, comply with the requisitions of the law.

Section 2265, Revised Statutes, provides that "every claimant under the preëmption law for land not yet proclaimed for sale is required to make known his claim in writing to the register of the proper land office within three months from the time of the settlement, giving the designation of the tract and the time of settlement; otherwise his claim shall be forfeited and the tract awarded to the next settler, in the order of time, on the same tract of land, who has given such notice and otherwise complied with the conditions of the law"; and section 2266 provides that "in regard to settlements which are authorized upon unsurveyed lands, the preëmption claimant shall be in all cases required to file his declaratory statement within three months from the date of the receipt at the district land office of the approved plat of the township embracing such preëmption settlement"; and section 2267 provides that "all claimants of preëmption rights, under the two preceding sections, shall, when no shorter time is prescribed by law, make the proper proof and payment for the lands claimed within thirty months after the date prescribed therein, respectively, for filing their declaratory notice, has expired."

The bill discloses that the plaintiff in error first appeared in the land office and proposed to file her declaratory state