Arizona republican., 1910-08-20

i the superior right.
 The land in dispute is described as lots and 6 and contains respectively | 4I11 and 59.04 acres, of section 24 and l all of section 13, township south | range 15 east. c. x NJ R. B. M The
 land was withdrawn in 1907. together
 with other lands, under the reclama | ton act in connection with the San
 Carlos dam project. On petition of
 r. J. Powell, lots and and a part
 of section 13 were relieved of with
 drawal and opened to settlement Oc-
 tober 15 and open to entry November
 IA, 1908. Later the other portions of
 the township were restored to entry. The decision continues: Tn May, 1907, P. A. Tharaldson attempted to
 locate Wyandotte scrip on what he
 described as the NEA NWA and
 NWA NWA of section 24 The loca-
 tions were rejected because of the
 land being under the first form of
 withdrawal. When the land became subject to entry, November IA. 1908,
 Tharaldson refiled his application"
 Then, September z, 1909, F. J. To-
 well. after the filing of the supple mental plat, applied for homestead en- try on lots 6 and T. Later he amend ed his application to describe, in lieu of the land applied for. N1s NWh section A and Ek SWA section 13 Action on his original application was suspended awaiting disposition of Tharaldson's scrip locations.
 Prior to the Toweil application of September '. E. Stenger applied to To- afn en,-in 9 and to make soldiers additional entry for NE SW4 of said section. Hence Toweils amended homestead applica- tion conflicts with Stengers.
 September 27. 1909. Lopez filed ap- plication for a part of section 13 and for lot 6 in section 24; and Febru- ary II. 1910. the probate judge of Gila county filed townsite application for lots 6 and on behalf of the occu- pants of the proposed town of Win kelman
 Powell having filed protest against the allowance of Tharald- sons scrip locations. the department on August r. 1909. ordered a hearing to determine the rights of the par ties.
 The decision sums up the various claims as follows:
 As to Toweifs clai moi settlement rights on the land applied for by him. the testimbny shows that in 1906 he purchased the possessory rights of an alien, one Marquez, who had been conducting, since 1904. a small store at the south end of what is now de- scribed as lot ', between the railroad rio nf h., posted notice of his claim to the lands described in his amended appli- cation and continued to conduct the store. He had a small garden near by He had always been engaged in business and did nothing to show that he was. in good faith, attempting to secure a homestead. He is, conse- Guently, in no sense, entitled to be recognized as a homestead settler. as he never resided on any portion of his application in section A or any part of section 13.
 As to the application of Lopez, it was shown that he had been living on the south end of lot 6 since about June, 1907, with many other townsite claimants. When Lopez was on the stand. his counsel announced that he withdrew all claim to the land in sec tion 13 applied for by him. His set clement on the south end of lot 6 lacks all the elements of bona fide homesteader.
 "The claims of Powell and Lopez being wholly without merit, the real issue is the conflicting claims of Tharaldson and the townsite claim ants.
 November 14, 1908. when Tharald- son relocated the Wyandotte scrip there was situated on the land a sa loon and house of i'll fame. Both of these buildings have since been and the owners thereof do not appear of record; otherwise the land was unoccupied. But there were at least forty families living on the south portion of what is now surveyed as lots and .; consequently the townsite application has the superior right as the provisions of section 23S9. Revised Statutes, that townsite en- try shall in it's exterior limits be made in conformity with the legal subdi visions of the public lands authorized by law, has been held by the depart ment to be mandatory, and an entry which does not so conform can not be allowed In other words, the scrip applicant is bound by the plat of sur vey and if as in this case the plat embraces in one subdivision the land occupied by the townsite claimants, and the land sought to be covered by the scrip, the townsite claimants have the superior right to the entire sub division.
 We therefore recommend that the l applications of Howell and | Lopez be rejected and that the scrip | locations of Tharaldson be rejected if | the townsite applicant perfect applica- ion within the time allowed after this decision becomes final. Toweil. Lopez l and Tharaldson are each .ollowed thir-