George Shiras, Jr.

“ The supreme court of the territory held that the land in question was never divested of its character as school land until the entry by the probate judge under the act of 1889, and accordingly sustained the action of the trial court in dismissing the plaintiff's complaint, and in this we see no error. ”

“ Ct. 510, this language was used: 'A settlement upon the public lands in advance of the public surveys is allowed to parties who in good faith intend, when the surveys are made and returned to the local land office, to apply for their purchase. If, within a specified time after the survey, and the return of the township plat, the settler takes certain steps,-that is, files a declaratory statement, and performs certain other acts prescribed by law,-he acquires for the first time a right of pre-emption to the land. ”

“ 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 pre-emption law, excluded said land from the reservation for school purposes. ”