Appeal from the Circuit Court of the United States for the District of Oregon.

Bill by Chester V. Hare against August Birkenfield. Decree for defendant, and complainant appeals.

The appellant was the complainant in a bill in equity in which he alleged that on July 21, 1902, he had made a homestead entry on certain public land of the United States, and that on February 21, 1903, he had submitted a commutation proof thereon at the proper United States district land office, which proof was duly accepted, and that he is now entitled to a patent therefor from the United States; that on October 15, 1909, while he owned and was seised in fee of the land embraced within, his homestead entry, the appellee, without right or title, unlawfully and forcibly entered into and upon the same, and ousted and ejected the appellant therefrom, and still withholds the possession thereof, and that the appellee’s occupation is a continuing trespass; that he has cut and threatens indefinitely to cut, bum, and destroy timber on said land, which timber is of the value of $10,000; that he has mutilated, and threatens to mutilate and injure, the buildings and other improvements on said land. The bill' further alleged that the appellant has made improvements of considerable value on said land; that he is in danger of losing his title thereto by having his homestead entry canceled by the action of the Secretary of the Interior on the ground that he had not resided on. said land sufficient to show that he intended to make the same his permanent home; that, if such order of cancellation shall be made, he will, notwithstanding, be able to sell his improvements on said land, and the posses^ sion thereof for the sum of $4,500, provided that the appellee shall be removed therefrom; that, under the public land laws of the United States and the regulations of the Interior Department, the right of a homestead entry-man who has not been guilty of any fraud to sell his relinquishment and improvements is recognized and protected, and that, under such laws and regulations, any person who settles upon lands covered by the homestead entry of another is a trespasser up until the time when the previous entry is canceled of record in the local land office; that the appellant is without plain, adequate, or complete remedy at law, and the appellee is insolvent, and could not be made to respond in damages for the injuries complained of. The bill prayed for a preliminary injunction restraining the appellee from residing on the land or cutting any timber therefrom, or mutilating the buildings thereon, or withholding the possession, and that upon final hearing such injunction be made permanent, and for the recovery of damages. The appellee answered, admitting his possession, and alleging that he occupies the land as a bona fide settler. He denied the alleged .acts and threatened acts of injury to the property, and alleged that on- August 8, 1909, the register and receiver of the land office for the district in which the homestead entry is located, upon the evidence adduced, rendered a decision recommending "that the homestead entry of the appellant be canceled and set aside on the ground that the appellant had not resided upon the land sufficient to show an intention to make the same his permanent home, and had not complied with the laws of the United States in that regard, and that since February 21, 1903, the appellant has never occupied said land or been in possession thereof, or lived thereon, but has wholly deserted the same, and the answer further alleged that the appellee’s sole purpose in taking and holding possession of the property is to enter the same as a homestead whenever the appellant’s homestead entry shall be canceled. The court below denied the application for a preliminary injunction, and dismissed the bill for want of equity.