machinery and apparatus for crushing and concentrating ores, one half of these being on each site.

I find the same witnesses in both cases making affidavits containing substantially the same statements in each case as to improvements, etc., locating the works on the line between the two sites and crediting to each one half the cost, but not showing any mill or reduction works on either, independent of the works on the adjoining site.

The law (Sec. 2337, Rev. Stats.) provides for the issuance of patents for mill-sites to owners of quartz mills or reduction works, and it limits each location to five acres.

It occurs to me, indeed it seems quite apparent, that this company has erected only the buildings and procured only the machinery necessary to one plant, and has so located two mill sites that this plant is to be in the centre of a ten acre parcel of land instead of being limited to five acres. I find from the evidence before me that it has expended over forty thousand dollars in improvements, but the certificate of the surveyor does not mention them.

They appear to have been made since the survey, it being made in 1880, while the application was not filed until December 26, 1888. I do not, however, find from the evidence that there is any quartz mill or reduction works or any buildings or machinery on either tract that is or can be used as a quartz mill or reduction works independent of the other, as the south line of No. 1 being the north line of No. 2, runs through the buildings, and whether there is any engine or boilers or crushers on either site does not appear from the evidence.

But it is the policy of the government to encourage the development of her mines and the investment of capital necessary to do this, and it may work a hardship to cancel these entries outright, and in view of the facts stated in the supplemental affidavits, I will set aside your de cisions and return the cases to your office. You will allow the company to show, if such is the fact, by proper certificate of the surveyor general, as required by section 2325, Revised Statutes, and such other evidence as you may deem proper, that it has a quartz mill or reduction works upon either site, or upon both, as contemplated by section 2337, Revised Statutes.

It is not good practice to consolidate cases that have separate records, but these cases, Nos. 10718 and 10719 are, so far as appears, so intimately connected that I cannot pass upon them separately, and I have considered site No. 2 with No. 1, but if it shall appear that the company has a plant upon each, the records will be kept separate and the cases will not be consolidated. If it shall appear upon investigation that there is but one plant so situated and constructed; that it is on neither site, they will both be canceled, and the company will be allowed to make a new location of a mill-site, not exceeding five acres, embracing such quartz mill and reduction works.

TE

The papers are herewith returned. Both cases may take the same

course.

Upon receiving the evidence in the cases with proper certificates of the surveyor general, you will re-adjudicate them upon the lines herein indicated.

OKLAHOMA LANDS-TOWNSITE-HOMESTEAD-COSTS.

KINGFISHER TOWNSITE v. FOSSETT.

The fact that an acre of land in a quarter section has been reserved for the location of a land office, is not, in itself, sufficient to impeach the good faith of a homestead entry of such quarter section.

The commutation of a homestead entry under section 21, act of May 2, 1890, cannot be allowed, where it is apparent that the land covered thereby is intended for townsite purposes, and not for agricultural use.

Under section 22 of said act the homesteader may purchase for townsite purposes such

legal sub-divisions of his entry as may be required therefor, and perfect title to the remainder under the homestead law on showing due compliance therewith. In a contest where no preference right is claimed under the act of May 14, 1880, the costs should be apportioned in accordance with rule 55 of practice.

Secretary Noble to the Commissioner of the General Land Office, January 4, 1892.

This case involves title to the NW. of Sec. 15, T. 16 N., R. 7 W., Kingfisher land office, Oklahoma, embraced in homestead entry No. 5, made by W. D. Fossett, April 23, 1889. The present controversy arose upon an order for a hearing contained in departmental decision of October 1, 1889 (11 L. D., 330), and a brief reference to the former proceedings in the case is necessary to a proper understanding of the matter.

On April 23, 1890, Fossett and one John H. Wood made homestead entries covering the N. of said section 15, and on May 4, 1889, the occupants of the townsite of Kingfisher made application to enter said tract for townsite purposes.

Hearing was duly had, and upon the record as made this Department held, in the decision of October 1, 1890 (supra):

First: Fossett, at the time of making his homestead entry, was a legally qualified homesteader.

Second: He settled upon the said NW. † on April 22, 1889, and prior to the time that a townsite was actually taken.

*

In considering the case of Fossett, as he was the first settler upon the land, and his settlement was followed by residence and improvement, and whatever rights he may have acquired were properly held by your office to have attached at the time of his actual settlement, and not on the following day, when he made his claim of record at the local office. His rights cannot, therefore, be impaired by the subsequent occupation, on the same day, of the land embraced in his entry by the townsite settlers, and had not the integrity of his entry been impeached by said protest, it is clear, that as found by your office, the same should remain intact.

I find, however, among the papers before me, an affidavit made July 23, 1890, by J.

P. Barnard, one of the said protestants against the withdrawal of the appeal 】ere, which charges collusion between one Jillett (Fossett's attorney) the said Fossett, and said mayor and council, and a few of the occupants of said quarter-section, and to which is annexed a paper purporting to be a certified copy of an agreement, made May 5, 1890, by Fossett's said attorney and the 'townsite occupants and inhabitants,' upon the said north-west quarter, to the effect that the lots occupied by said parties would, upon the completion of Fossett's entry for a specified price, be conveyed to him, 'in case no appeal is taken' from the action of your office.

This introduces a new element into the case, indicating that Fossett did not make his settlement in good faith for homestead purposes, but for speculation, which should, in my opinion, be made the subject of inquiry, to the end that the validity of his entry may be properly determined. You will accordingly direct that a hearing be had, at which testimony will be taken for the purpose of ascertaining whether or not he has made or authorized any agreement for the sale of the lands, or any part thereof, or whether he made the entry for speculative purposes or in good faith as a homesteader. Should it be satisfactorily shown that Fossett has made, or authorized any such agreement, or that his entry was speculative, then his entry must be canceled, otherwise it will stand subject to his compliance with the law.

By this decision the entry of Wood was canceled.

This hearing in relation to Fossett's entry took place at the local office in November 1890, and upon the testimony the local officers rendered their decision, December 13, 1890, recommending that the contest be dismissed, and that the entry of the defendant be held intact. In said decision it was found:

1. That the said defendant, William D. Fossett, did not make or authorize any agreement for the sale of the lands covered by his homestead entry, or any part thereof, in the manner and upon the conditions named in the affidavit of the said protestant, J. P. Barnard.

2. That the said alleged agreement between one F. E. Gillett and the mayor and council of Kingfisher, was never accepted or executed by the said mayor and council. 3. That the homestead entry of the said defendant, William D. Fossett, was not speculative, but made in good faith in compliance with the homestead laws governing the settlement of Oklahoma.

Upon appeal, your decision of June 3, 1891, after reviewing the testimony, sustains that of the local office, and incidentally passes upon the question of the apportionment of costs incurred at the trial of the case, which you held should be governed by the rule laid down in the case of Milum v. Johnson, 10 L. D., 625. You also considered the commutation proof submitted by Fossett June 12, 1890, under the provisions of section 21 of the Territorial act, approved May 2, 1890 (26 Stat., 81), and as said proof disclosed the fact that a portion of the tract in question was then actually "occupied by townsite settlers," such proof was rejected, and he was required to comply with the requirements of the second proviso of the 22d section of said Territorial act.

It was further held that

Should he desire to purchase a portion only of said tract upon the terms therein prescribed, he will be permitted to do so. In that event, hewever, his entry, as to the remaining portions of the land covered thereby, will be canceled.

From your decision both parties appeal, the townsite from the finding as to the validity of Fossett's entry, and Fossett from the apportionment of costs and the holding that in the event that he purchase only a portion of the tract under section 22, as before set forth, that his entry must be canceled as to the remainder.

In addition to the briefs filed in the case, an oral argument was granted upon the request of the townsite.

From the foregoing, it will be seen that the allegations contained in the affidavit by J. P. Barnard were the moving cause of the investigation directed, and the examination of the case seems to have been conducted solely with reference thereto.

Under the order of this Department, however, an opportunity was offered the settlers to introduce any other evidence tending to show speculative intent on the part of Fossett in the making of this entry, but no such testimony was offered.

Both your office and the local office find as a matter of fact, that Fossett did not enter into or authorize the agreement referred to in said affidavit, and further find that his entry was not speculative, but made in good faith, and from a careful examination of the testimony I agree with said findings.

In the oral argument herein, counsel for the townsite urged that its case was greatly weakened by the exclusion of certain testimony on the re-trial of the case, and it was for the first time claimed, that the fact that one acre had been reserved for a land office in this quartersection was, under the holding in the case of Guthrie townsite v. Paine et al., 12 L. D., 653, sufficient to establish the fact that the homestead entry made for such quarter-section was for a speculative purpose. The opinion of the local officers states as follows:

The testimony in this case is voluminous, and a large portion of it is wholly irrelevant and immaterial, and could only have been admitted at all, under the wide latitude that local land officers are required to extend to parties to controversies of this character. It has been the aim of this office to secure the most thorough investigation of all facts, in connection with this case, and in keeping with this purpose witnesses, especially for the plaintiff, have been allowed the greatest possible freedom in testifying as to circumstances, suspicions, motives, conclusions, conversations, rumors, street-gossip, etc.

An examination of the case shows that a large amount of irrelevant and immaterial testimony was admitted, and as to that excluded, it generally consisted of hearsay testimony and such other testimony as would have been excluded in any court.

I must therefore hold that there was no error in the conduct of the case, and that the charges made against the entry have not been sustained.

As to the application of the decision in the case of Guthrie townsite v. Paine et al. (supra), to the present case, it seems that counsel has misconstrued the holding in that case by magnifying the effect of what

was therein stated relative to the reservation of a tract in a quartersection for land office purposes. It is true that it is stated therein that Every intelligent person is aware of the fact that for the last half century the establishment of a United States government land office was equivalent to the foundation of a town, or city, of greater or less magnitude; whenever a spot was selected for a land office, that became the center of population; it became a town, and the land ceased to be in a condition where it could be used for agriculture, but it became valuable for townsite purposes.

While the establishment of a land office is one of the indicia of a town which all homestead claimants are bound to take notice of, yet this idea is not the pivotal one on which that case turned. The fact that an acre had been reserved in the vicinity of the land entered for a land office was but one of the minor elements in the case, and not the main point of that decision. It was a circumstance, which, when taken in connection with all the other and more important facts and circumstances, actions and motives of the applicants, clearly determined their purpose and intent in making the entries then under consideration.

It will not do to enlarge upon a single idea, or an isolated sentence to rule upon the rights of parties, but the case must be considered as a comprehensive whole, in order to arrive at an intelligent understanding of what was decided.

The difference in the two cases is determined by the intent, design and purpose of the parties interested, when viewed in the light of their conduct and the circumstances surrounding each case.

All the testimony taken at the first hearing bearing upon the good faith of Mr. Fossett was considered when the case was first before this Department. It was then held that he was a qualified homesteader, and having first lawfully appropriated this tract under the homestead law, should not be required to surrender his rights to the claim of subsequent settlement of the townsite occupants, unless he had made the contract referred to in the affidavit by J. P. Barnard, or that his entry was speculative.

These questions were referred to the local office for trial.

The fact that an acre had been reserved in the quarter-section entered by Fossett for a land office was well known to the Department when the case was first considered, and had that fact of itself been considered sufficient upon which to base a finding of speculative intent in making entry for such quarter-section, there would have been no necessity for a further hearing; indeed, the order for a hearing, when viewed in such a light, was unjust, as it could result only in increasing the already great expense of this contest.

The local officers, as well as yourself, decided the case upon the second hearing in favor of the entryman, finding, as before stated, that Fossett did not enter into or authorize the agreement referred to in the affidavit by J. P. Barnard, and that his entry was not speculative, but made in good faith.