“ Stat. § 2265, fixed three months from the date of settlement as the time within which the claim should be asserted at the local land office, and that the defendant did not conform to this requirement; but that is not a matter of which advantage can be taken by one who stands in the shoes of the railway company, as does the plaintiff. The statute does not contemplate that such a default shall inexorably extinguish the settler's claim, but only that the land shall be 'awarded to the next settler in the order of time' who does so assert his claim and otherwise complies with the law. ”

“ Had the real facts been disclosed to the Land Department, viz., that the defendant was residing upon and occupying the land in virtue of a lawful homestead settlement antedating the second indemnity selection, it would have been the duty of the secretary of the Interior to disapprove the selection, and no doubt he would have done so. ”

“ Doc. 246, 50th Cong., 1st Sess.; 26 Stat. at L. 496, chap. 1040, § 4, U.S.C.omp. Stat. 1901, p. 1598; Re St. Paul & S.C.. R. Co. 12 Land Dec. 541; St. Paul M. & M. R. Co. v. Hastings & D. R. Co. 13 Land Dec. ”