“ The important words of the act are, public lands 'to which no adverse right or claim shall have attached or have been initiated at the time of the making of such selection.' The Supreme Court of the state held that Tincker's acts 'were not sufficient to initiate a bona fide settlement,' but concluded with some hesitation that they nevertheless took the tract out of the class of lands subject to selection. ”

“ We agree that Tincker did not make a bona fide settlement, and we are further of opinion that his acts fell so far short of such a settlement that they did not amount to the initiation of a claim in any admissible view of the homestead law or the act of 1892. He did nothing indicative of a present purpose to establish a home on the quarter section. He started no real improvements, made no preparations for living there, did not attempt to reside there and did not take his family there, but confined himself to minor acts calculated merely to deter others from initiating claims. ”

“ All are cases where the individual claim which operated to defeat the railroad claim or selection was prior in time and had been initiated either by an entry at the land office or by an actual bona fide settlement. ”

“ When it was made, a qualified claimant, who had settled theretofore and given notice of the extent of his claim, was residing on, occupying, and improving the land and in good faith conforming to the homestead requirements. Subsequently he died, and his mother as sole heir sold his possessory claim and improvements to Donohue, who made a timber and stone entry of the land after the survey. This court, after carefully pointing out that the homestead claim was lawfully initiated, held that the land was excepted from the right of selection, and therefore that the selection was of no avail. ”

“ In March, [3] 1902, he went to the quarter section again, blazed a trial from an adjacent stream to the nearest corner, cut a few poles, and with these laid what appeared to be a cabin foundation two or three poles high. ”

“ General Circular of January 25, 1904, p. 14; Suggestions to Homesteaders, 37 L. D. 639, 640; 40 L. D. 42; 43 L. D. 3; 44 L. D. 93; 48 L. D. 391. And see United States v. Mills, 190 F. 513, 516, 111 C. C. A. 345, 42 L. R. A. (N. S.) 752 ”