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question the United States never parted celed, and at the expiration of that time to claratory statement for the land in contest before the Supreme Court in the case of a trespasser, the local officers are not sup erected by Mrs. Banks," and that there. Company cited above, and in keeping with not expected to notify him of the cancel not apply; and you rest your decision on

schools, the language of the statute re- was improperly allowed, the land not being 1 and 2, and the E. of the N. W. of lating thereto being, in all essential par- of the character subject to such appropria- Section 18, Township 26 S., Range 8 W., ticulars, identical with the one in question, tion. It follows, therefore, that the entry Wichita, Kansas, on appeal by Mrs. Banks said: “The lands are public lands, al- cannot be passed to patent unless it is from your decision of September 5, 1882, though reserved for a particular purpose. done under or by virtue of the provisions awarding the land to Smith. The United States has not granted the of a later act of Congress. The act of It appears from the record that Mrs. title to such lands, but has reserved them March 3, 1883, which is the only one upon Banks made homestead entry No. 5353, in order that at some future time when a the subject, confirms or authorizes the pat- for the land on September 29, 1874, built state shall be erected out of such Territory enting of homestead entries made in good a house on and otherwise improved it, and the same may be granted to such State." faith where the claimants have complied had her hoine there until the spring of In Mining Company vs. Consolidated with the homestead law in all respects ex- 1878, when she became too old and feeble Mining Company, 102 U. S. R. 167, the cept as to the provisions relating to min- and sick to work it herself any longer; Supreme Court in a well considered opin- eral lands.

that, for the purpose of changing ber ion in which all legislation with reference As the claimant in this case has not homestead entry to a timber-culture entry, to the manner of disposal of mineral lands complied with the homestead law in re- she relinquished all the right, title and inand the policy of the Government in re- gard to residence on the land, the entry is terest, which she had acquired “by virtue lation thereto, were reviewed, held that a not embraced in the confirmatory pro- of my (her) homestead entry,” on May 20, grant of public lands to the State of Cali- visions of the act of March 3, 1883. 1878; that on said date she had her house, fornia, by the act of March 3, 1853, for Mr. Jost's entry is therefore illegal, and household effects, and growing crops on school purposes,

was not intended to it is accordingly held for cancellation. the land, though she herself was absent by cover mineral lands, but such lands were

reason of sickness; that said entry was excluded from that grant, as they were


canceled by your office on September 7, from all others, by the settled policy of


1878, and by the local office on the 16th the Government on that subject."

day of said month; and that on said SepThe operative words of the Act of COMMISSIONER MCFARLAND TO A. R. Greene, tember 16, 1878, she made timber-culture March 3, 1853, are “ shall be and hereby

Lecompton, Kansas, Sept. 1, 1883. (S. W. S.)
An excess payment, where the amount which reached the local office two days

application and affidavit before a notary, are granted," and there was no question raised as to the intent of Congress to would be less than one dollar, is not re

after, was rejected because the printed grant to the State of California the lands, quired in homestead and timber culture words " under the provisions of the act of

cases. other than mineral, therein specified.


March 13, 1874," appeared in it, (instead Since, then, it appears settled that it was never the intention of Congress to


of the act of June 14, 1878), was amended,

and her timber-culture entry No. 1269 algrant to a State or Territory any mineral COMMISSIONER MCFARLAND to Charles II. Dar- lowed on September 27, 1878, during which lands for school purposes, it follows

lington, Phillips, Wis., Sept. 6, 1883. (S. W.S.) time she had planted the kind and quantity

Local land oflicers are required to notify of timber required by the law. a fortiori, that it cannot be presumed to

homestead claimants who have not made have been its intention to reserve any por

It appears further that John W. Smith, tion of them to be applied in the future to proof within the statutory period, and alIt is proper to remark low them thirty days within which to show who was residing on a tract of the Osage

had full notice of tb further, that, since in case of the lands in cause why their entries should not be can- claim of Mrs. Banks, filed his soldier's dewith its title, it was entirely competent report result to this office. for Congress to exclude the mineral por- nature are overlooked by the district land in March, 1879, and sowed a crop on part.

It sometimes occurs that entries of that on said September 16, 1878, made home

stead entry No. 6943 and moved upon it tion thereof (even conceding that a reservation of the same had been made) from officers, and remain of record eight or

of the land broken by Mrs. Banks. such reservation, by the mining act more years. In cases where the party has

Hearing was had in order to determine of July 4, 1866, 'which construction of actually abandoned his entry, which has said act would be in keeping with the de- expired by limitation, and some other whether the facts warranted the applica

tion of the Atherton-Fowler doctrine, and cision of Hon. C. Delano, Secretary of the party settles on the land, he can acquire Interior, April 28, 1873, in the Keystone

no rights prior to cancellation of such your decision holds that “it does not apabandoned entry; and as he is in one sense

pear that Smith took violent possession of case; the issues in which afterwards came

the tract, or even occupied the dwelling Mining Company vs. Consolidated Mining posed to know of his settlement, and are

fore the Atherton-Fowler doctrine does the judgment of said court therein. I am lation of the existing entry. While, no

the case of Lawless vs. Anderson (1 Hill's therefore of the opinion that the lands in doubt, such settlers sometimes lose their

L. Cases, 57). question come within the provisions of the labor and improvements by another party

I find myself compelled te disent from coal land act of March 3, 1873, and are

being first to make entry, I see no relief; subject to entry thereunder.

they must exercise such diligence as will this view of the law applicable to the case. best enable them to protect

In Lawless vs. Anderson the prior settler

their settlement rights.

had not complied with the statute as to FREDERICK C. Jost.

inhabiting the land or building a dwelling, COMMISSIONER MCFARLAND to Reg. and Rec.,


and by the express terms of the law (SecMontgomery, Alabama, Sept. 1, 1883. (A. Y,)

tion 2273, R. S.), he had no right to the The mineral character of the land is Application -- An application erroneous in form; land at date of Anderson's entry. But in clearly shown by the agent's report, as the date when first received at the local land the case at bar, Mrs. Banks was in posseswell as the fact that the claimant has not

sion of the land by color of law at date complied with the homestead law. The Changing Entry.- Homestead to Timber-Culture. of Smith's entry; her relinquishment was second section of the act of June 15, 1880,

- Possession. The Atherton-Fowler and Hos- of whatever homestead right she had acexpressly excepts from its provisions all

mer-Wallace decisions held to apply to this lands which were not subject to entry

case, and the land is awarded to the timbers quired by her entry, and she had no intenculture claimant.

tion to abandon her possession of the land; under the homestead law; and as the coal SECRETARY TELLER to Commissioner McFar- being absent sick, she was not only conlands in Alabama were at the date of the land, September 26, 1883. (D. A. McK.) structively present in person, but she was cash entry reserved from the operation of I have considered the case of Sarah J. there by her dwelling-house, her improve said law, the entry under consideration Banks vs John W. Smith, involving lots'ments, and her growing crops, with full


notice of which Smith is charged; and she and broke a couple of acres in its vicinity. vs. James Lawson, involving soldiers' therefore had a valuable property and It appears further that Sederquist went to homestead entry No. 3683, on the S. W. 1 right with respect to the land, which ex- the local office and was officially informed of Section 34, Township 8 N., Range 68 cluded entrance on her possession, under that said tract was not covered by an en. W., Denver, Colorado, on appeal by Clark guise of a settlement claim, as absolutely as try; that on January 21, 1880, he filed de- from your decision of April 25, 1882, disdid the fences on the unsurveyed lands claratory statement No. 5893 for it, alleg- missing the contest. of the Soscol Ranch. “As held in Ather-ing settlement on the 20th of the same It appears that Lawson went upon the ton vs. Fowler (96 U. S. 513), the right month; that he at once began to erect a tract in March, 1878, built a house and to make a settlement is to be exercised house and was promptly notified by Ayers made other improvements the same year, on unsettled land ; the right to make im- that he claimed the land as a homestead, and broke and planted an acre or two in provements is to be exercised on unim- and that he nevertheless persisted in im- the spring of 1879; that the crop failed proved land; the right to erect a dwelling proving it, has resiaed there since, and to come to maturity for want of rain, and house, is to be exercised on vacant land ; has a house, stable, and eighteen acres for want of facilities for irrigation ; that, none of these things can be done on land under cultivation. On October 30, 1880, pending the construction of an irrigating when it is occupied and used by others” Ayers filed an affidavit in which he al- ditch in the vicinity of the tract, which (Hosmer vs. Wallace, 97 U.S., 580). This leged that he had settled on the tract in was to be completed in 1882, no other doctrine is not to be extended to cases Section 26 by mistake, believing it to be crop was planted; and that he, being a where the prior settler is himself a mere in Section 20, and the land which he had poor man, with a family, was compelled to trespasser on the public land (Powers vs. originally selected, and asked to have his earn a living elsewhere by daily labor, reForbes, 7 Land Owner, 149), or has disre- entry amended to cover it; your office siding most of the time with a sister, but garded statutory requirements (Lawless allowed the amendment April 2, 1881, and returning from time to time to continue vs. Anderson, supra); but it is directly it was made at the local office September the improvement; that his house was applicable to the case at bar, where bona- 30,1881. He swears now that he applied to burned in the fall of 1880, and that he purfide entry and improvement had given an attorney as early as October, 1879, with chased another and was on the land in the a legal possessory right to the land, which the view of effecting the amendment, but spring of 1881, rebuilding and otherwise the claimant continuously asserted, even of this desire it appears that neither your improving, when the notice of contest was during the time when she was lawfully office nor the Land Office had knowledge.issued and served on him. Said notice changing the form of her entry from home At that time Ayers' settlement on the alleged abandonment for the six preceding stead to timber-culture. A right so ac- tract in contest could inure to his benefit months, and failure to settle and cultivate quired and maintained other settlers are only by force of Section 2273, R. S., and as required by law. bound to respect, and the government is since a preferred right is therein made de The above recital of evidence elicited at bound to protect it by every consideration pendent upon the prior settler's conform the trial shows that the allegation of abanof justice and good faith.

ing to the other provisions of law, and donment was not proved. It is my opinion that Smith's entry since he did not conform to the said pro As to failure to reside on the land conshould be cancelled, and that Mrs. Banks visions, he acquired no right by the settle- tinuously, it has been held that continuous is entitled to entry as of September 18, ment. He might have effected an amend- residence is not required where the entry 1878, the date of her first application, the ment of his original entry by the exercise is in good faith and the circumstances juserror in said application being merely of due diligence, but he failed to exercise tify the absences (Edwards vs. Sexon, 9 an error in form.

it. Consequently Sederquist's settlement Land Owner, 72). Lawson's poverty and Your decision is accordingly reversed. was valid (Belk vs. Meagher, 104 U. S., large family point him out as the very

279), and Ayers' notice to him of a prior man for whose benefit the homestead laws SEDERQUIST VS. AYERS.

claim was of no legal effect, because Ayers were devised; there does not appear to be Mistake-Amendment-Diligence.Where a par- stead settlement as the law provided that that poverty justifies temporary absences

himself having failed to initiate his home- want of good faith; and it is a settled rule and settles on another tract, but does not ap- he should initiate it, was without a valid for the purpose of obtaining the means ply to amend the entry, so as to properly de- claim and was a mere trespasser on the wherewith to improve a homestead. scribe the tract settled on, until after a valid public land. His good faith in settling In regard to the alleged failure to cultiadverse right has intervened, such amend, which is insisted upon could avail him only vate, it is clear that the beneficent homement will not be allowed, and the homestead when accompanied by a compliance with stead law should not be so construed as to visions of the Act of May 14, 1880, in order to other provisions of the law, and a due ap- work forfeiture because of a failure to cul

acquire priority over the adverse claimant. plication to enter, otherwise a person tivate, resulting from causes beyond the Acting SECRETARY JOSLYN to Commissioner might actually settle on a tract of the pub- claimant's control. The persisting drouth McFarland, August 28, 1883. (D), A. McK.) lic domain, and without acquiring a title is the act of God, and excuses the failure.

I have considered the case of J. W. himself, prevent all others from acquiring Drouth is as much the enemy of a settler Sederquist vs. D. C. Ayers, involving the title to it.

as a hostile adverse claimant, or a band of S. } of the N. E. and the S. of the N. Granting the retroactive effect of the act marauding Indians; and as these have W. . of Section 26, Township 7, Range of May 14, 1880, which counsel claim in been held to excuse an enforced absence, 16 W., Bloomington, Nebraska, on appeal his behalf, it cannot apply to a case where so should that be held to excuse it, when by Ayers from your decision of July 24, a valid adverse interest had attached prior there is no evidence of an intention to 1882, holding his entry for cancellation. to its passage; and the amended entry abandon. Much of the land in the far

It appears that on September 4, 1879, which was permitted by your office, being west is susceptible of a high degree of culAyers made homestead entry No. 7496, founded on a misrepresentation of the tivation when proper irrigating facilities for the N. E. of Section 20, in said town- facts, is void for the saine reason, and are furnished; and when these are wantship, and that about the 15th of the same should be canceled.

ing, when a faithful effort to cultivate has month he went to make settlement upon Your decision is accordingly aflirmed. been made and failed of success only beit, but, finding the land which he intended

cause of a lack of water, when it is clear to enter to be in Section 21, and already


that no other settler could do more with appropriated, and not being pleased with Residence.Cultivation.— Poverty excuses non- the land until water is supplied, it is emithe land in Section 20, he moved upon the

continuous residence. Drouth excuses non- nently just that the first bona fide claimtract in contest in Section 26, without any

cultivation, provided good faith is mani-
fested by the homestead claimant.

ant, maintaining his improvements, should notice to the local oflice, or effort to rec- SECRETARY TELLER to Commissioner Mc Far- be allowed to retain the land until irrigatify the mistake, built a house there, in land, September 19, 1883. (D. A. McK.) tion is possible. By the enforcement of which he has since resided with his family, I have considered the case of Joel Clark'such a rule the adverse claimant loses


nothing, the United States are not damni- the presence of an adverse right or inter You must assume the initial responsified, and the homestead law becomes what est, I think its recognition in ex parte bility of deciding whether the requireit was intended to be, the protector, and cases, where no such right exists—the ments of law and official instructions have not the oppressor, of the honest settler. more reasonable and just."

been fully met.

You will record your apYour decision is accordingly affirmed. Although Foster is in no danger of los- proval on the back of the testimony, and

ing his actual home and improvements, not on the final certificate. In each final FRANCIS M. FOSTER.

he has wholly failed to comply with legal certificate at least one of the Christian Second Homestead Entry-Failure to Reside and requirements, he has nevertheless satis- names of the claimant should be written

Settle Explained. - In view of the explanation factorily explained the cause of such fail- in full. offered, Foster is allowed to make a second And as this is matter to be consid You will take care that no more land

homestead entry. Secretary TELLER to Commissioner McFarland,

ered solely between the Government and shall be included in a private cash entry September 18, 1883. (S. W. R.)

him, I deem it to be but reasonable and than can be described by subdivisions in I have considered the appeal of Francis just and resting clearly within the scope the ordinary form of cash certificate and M. Foster from your decision of Novem- of my discretion to recognize a right ex- patent; and the subdivisions should be conber 23, 1882, rejecting his application to pressly conferred by law, but of which he fined to one section whenever practicable make another entry in lieu of his home would otherwise be deprived by purely —this to lessen the chances for confusion stead entry No. 16, 364, made May 5, 1881. fortuitous circumstances. I am aware that and error in posting. of the N. W. # of Sec. 29, Tp. 4 S., R. 2 section 2298 of the Revised Statutes pro You are instructed to be careful to W., Concordia district, Kansas.

vides that “no person shall be permitted promptly post all entries and locations in It appears that the entry was canceled to acquire title to more than one quarter- the appropriate places in your tract-books October 17, 1882, for relinquishment, section under the provisions of this chap- —without such posting, the tract-books pending a contest initiated against the ter;"' but it should be observed that as he have no value, and confusion follows. same by one Edgar McKie, September has not so acquired title, his case does not Complaints are made that it is often 13th preceding, upon the ground of aban- come within the intendment of such pro- difficult to procure the publisher's affidadonment. hibition.

vit of publication of intention to make Foster bases his application upon the

1 am, therefore, of the opinion that in final proof. To cure this difficulty, Reg. ground that the aforesaid tract is not the the event of his designating exactly the isters should refuse to pay the cost of pubone he intended to enter and which he tract he intended to enter, he should be lication until the required aflidavit is supposed until September 1, 1881, had permitted to make entry of the same upon furnished. been described in his original application. payment of the usual fees, provided, of In the matter of excess payments, you He fails, however, to describe the tract course, no adverse right or interest has will in no case require payment where the he intended to enter.

accrued, meantime, to preclude such entry; amount is less than one dollar. It transpires through his own affidavit, in which event, it would be competent for In briefing your letters and returns to and those of two other affiants corrobor him to enter another tract instead. this oflice, you will leave a blank space of ating the same, that he was precluded Your decision is accordingly reversed. one and one-half inches at the upper end from complying with legal requirements

of the fold, in order that there may be room in point of residence and cultivation of the


for the number and date-stamp of this tract described in his entry by reason of DEPARTMENT OF THE INTERIOR,

otlice. Your briefing should briefly state the sickness of his wife on or about Sep

GENERAL LAND OFFICE, the character of the contents, as to whether tember 5, 1881, in Concordia, Kansas;

WASHINGTON, D.C., Sept. 17, 1883. they relate to a homestead, pre-emption, that on the 13th day of September, 1881, To District Land Officers :

timber-culture, or other class of entry by one Edgar McKie commenced a contest By circular letter of October 21, 1878 number and name. The lower third of the against me on said land for such failure to (Copp's L. O., vol. 5., p. 118, and Copp's fold should be left blank. reside on the same, &c., . ..and Land Laws, vol. 2, p. 1450) you were in

N. C. MCFARLAND, Commissioner. that by reason of said contest I am about structed" to carefully examine homestead Approved : H. M. TELLER, Secretary.

September 19, 1883. to lose the benefit of my homestead right, proof in each case, and if you find it corall of which is from no fault on my part," rect in all respects as required by law and

JEMIMA BENBOW. etc. instructions, you will write ' approved' on

Seven YearsFinal Proof.-Parties making new You held that under the rulings of the the same and subscribe your names under

or additional entries under the acts of March Department the only relief that could neath. If anything be wanting to perfect 3, 1879, and July 1, 1879, have seven years have been granted Foster would have the proof, call for supplemental affidavits, within which to make final proof. been to allow him to amend his entry so and have the want supplied before trans- Homestead Entry-Horo Terminated.--A homeas to embrace the tract he intended to mitting the same to this office.”

stead entry must remain of record until leenter; “but as a condition precedent, it

In view of the fact that many cases of

gally relinquished, contested or canceled for

failure to make final proof. would have been incumbent upon him to imperfect and incomplete proof are sent COMMISSIONER MCFARLAND to Reg. and Rec., show compliance with the law as to resi- to this office “ for instructions,” I deem it Tracy, Minnesota, August 8, 1883. (C. H. B.) dence and cultivation of the tract origi- proper to ask your strict observance of I am in receipt of your letter of July nally selected."

the following additional instructions, which 30, 1883, containing the following: "Je As I said under date of April 2, 1883, will govern all cases of final proof in home-mima Benbow made original homestead in the case of Neubert vs. Middendorf, stead, timber-culture, desert land, and tim-entry No. 8152, dated October 19, 1874, (10 Copp, 34,)“such amendment is recog- ber land entries :

for W. } of N. E. & Sec. 34, 106, 37, and nized by the practice of the Department You will be careful to give the testi- made final proof therefor July 19, 1881, to obtain the correction of a misdescrip- mony and aftidavits in each case critical F. C. No. 4461, and she made additional tion in the original papers growing out of examination, and if you find defects, omis- homestead entry No. 11004, dated July accident or mistake, clerical or otherwise, sions, or want of fullness of detail, call on 19th, 1881, for the E. of N. E. Sec. 34, when the settlement of the party is bona the claimant to supply the deficiency, in- 106, 37. After the expiration of two fide upon a particular tract, and he is in forming him that if he fails to do this years from date of said additional entry, danger of losing his actual home and im- within thirty days from receipt of notice, No. 11004, notice was given advising her provements."

his proof will be rejected, subject to the that the time fixed by statute had expired Under date of July 27th last, in the ex right of appeal to this office.

without the requisite proof being filed by parte case of Thomas Hammill (October Hereafter you will send to this oflice no her, and that 30 days would be allowed Land Owner, 83), I said that" if the priv- final proof without your“ approval" of the within which to show cause why her claim lege of such amendment be recognized in same, except on appeal.

should not be adjudged forfeited, and her

entry cancelled.” This office has no knowl- or the timber-culture entry sought to be line, and to subsequent changes in it made edge of a statutory provision limiting the contested was illegal or fraudulent at its by the parties; but said testimony is of no time within which final proof may be made inception.

moment in this adjudication. The only upon a homestead entry to two years from You cannot contest an entry for another fact to be considered is that when the ofidate thereof. The only statutory provis- —or in other words, a person cannot con- cial survey was made in the fall of 1880, it ions respecting time for making final proof stitute or appoint you his agent for that was found that the boundary line agreed upon homestead entries, known to this purpose.

upon divided irregularly the tract in conoffice, are those contained in Revised

troversy, and that both had 'settled upon Statutes, Sections 2291, and 2305, and


and improved different parts of the same the acts of March 3 and July 1, 1879. Alabama Court-Sec. 2294 R. S.—The court re

forty-acre subdivision. Miller was in no The first of these provides that " if at the ferred to in Sec. 2294 R. S., is in the Alabama sense a trespasser on Stover's land, for he expiration of such time" [five years], " or Circuit Court. Under act of March 3, acquired his original right by purchase at any time within two years thereafter” 1877, certain proof may be taken before the through Stover, and with the latter's full —that is, seven years from date of entry

judge or clerk of any court of record.

knowledge and consent. -the party “proves by two credible wit- COMMISSIONER MCFARLAND to Judge B. M.

September 27, 1881, the plat of survey nesses,” etc. The second, third and fourth,

Stevens, Elba, Ala., Sept. 17, 1883. (C. T. Y.)

was filed in the local office; on the next provide that no patent shall issue until the

I am in receipt of yours of the 27th and day Stover made homestead entry No. 319, homestead settler shall have "resided 30th ultimo, petitioning for reconsidera- and six days afterwards Miller made homeupon, improved and cultivated his home- tion of my decision of August, 20, 1883, stead entry No. 326. Both claim under stead for a period of at least one year," holding that the clerk of the court,

the act of May 14, 1880, but it is to be obthereby forbidding the acceptance of final named in, section 2294 Revised Statutes, served that the inceptive rights to their proof prior to the performance of those refers to the clerk of the circuit court, and respective tracts were acquired prior to acts. not of the county court.

the passage of said act. It is held by this office that a homestead In reply I have to state that this office

In the case of Burton vs. Stover, this party making an additional or new entry

has always held that the statute alludes to day decided, I held, in relation to Section under the acts of March 3, or July 1, the court having original jurisdiction, etc. 2274, R. S., that the equity of the statute 1879, is entitled to the same time in which By the code of Alabama the county court extends to 'all bona-fide settlement claims to make final proof, as is granted to set- has original jurisdiction--concurrent with initiated prior to survey, where a boundtlers by Section 2291 R. S.; that is, seven the circuit and city courts—of misdemean


ary line has been made by them. years from date of entry.

ors; and the circuit court has original decision is applicable to the case at bar, Your notification in the case above re-jurisdiction of all felonies and misdemean and you are therefore directed to notify ferred to was, therefore, unauthorized and ors, and of such actions and suits at law, the parties that they may make joint cash of no binding force. as are not cognizable before a justice; thus

entry of the tract in controversy; and if You add : “ We are now informed by clearly establishing the fact that the latter either fails to agree to such entry within her son, W. H. Benbow, that his mother court is, in your State, paramount to the

a reasonable time, say ninety days, the land (Jemima Benbow) is dead, and that the former, and is “ the court;”, therefore I will be awarded to the other as part of his heirs do not intend or desire to perfect cannot see any valid reason for changing homestead. title to said additional entry, and prefer my opinion.

Your decision is modified accordingly. that the same be canceled.

Under the act of March 3, 1877, which “ We would, therefore, respectfully re- is amendatory to section 2291, Revised

HANNAH VS. GERARD. commend that said additional H. E. 11004 Statutes, final proof may be made before be canceled." the Judge of the Court of Probate, it Residence. -A pre-emption claimant at time of

making final proof could not establish a valid Action cannot be taken in accordance being regarded as a court of record ; and

claim for a quarter-section or any part therewith your recommendation. The entry under act of June 9, 1880, amendatory to of, unless his dwelling-house, his actual resi

dence, was on some part of that quarter secmust remain upon the records until legally section 2262, Revised Statutes, the final relinquished, contested, or canceled for affidavit in pre-emption and homestead enfailure to make final proof within the pertries may be made before the clerk of the Soldier's Declaratory Statement.- Additional En

try.—The filing of a soldier's D. S. is a period prescribed by law-seven years from county court, or of any court of record.

sonal privilege, and should not be construed its date.

to his injury. A soldier who made and MILLER VS. STOVER.

abandoned an original homestead of 80 acres

prior to June 1874, may make an additional W. Z. TAYLOR. Section 2274, R. 8.- Settlement Before Survey.

entry of 80 acres more in this case. Peculiar

Where homestead claimants settled before COMMISSIONER MCFARLAND to W. Z. Taylor,

facts of this case stated. survey on the same forty-acre tract, Sec. 2274, Culbertson, Neb., Sept. 6, 1883. (J. W. B.) R. S., applies, and joint cash entry may be ACTING SECRETARY JOSLYN to Commissioner No person can contest a homestead én- made of such tract.

Mc Farland, July 26, 1883. (D. A. McK.) try unless at the time of initiating contest SECRETARY TELLER to Commissioner Mc Far

I have considered the case of John he is properly qualified to make, and does land, Oct. 1, 1883. (D, A. McK.)

Hannah vs. Frederick T. Gerard, involvmake and file, an application for entry of I have considered the case of S. B. Mil- ing the N. E. of the N. E. 4 of Section the land embraced in the contested entry. Ier vs. Cyrus Stover, involving the N. E. 34, Township 139, Range 81 W., Bismarck, The same ruling applies regarding contests of the N. E. of Sec. 11, Twp. 3 N., Dakota Territory, on appeal from your against timber culture entries; that is, the Range 7 E., Deadwood, Dakota, on appeal decisions of November 23,1882, and March party applying to contest must at the date by Stover from your decision of July 31, 14, 1883, awarding the land to Gerard. of initiation of contest be duly qualified to 1882, awarding the tract to Miller.

It appears by the record that the enter, and must file his application for It appears that Miller settled on unsur-township plat was filed March 26, 1879. that purpose, otherwise the contest is veyed land in 1877, and Stover in 1879. On the 14th of April, 1879, one Thomas void.

At the time of the latter's settlement, it Utley made soldier's homestead declaraOne man can contest only two entries, was understood between the two that their tory statement, No. 26, for the S. E. of which may be either homestead or timber possessions were mutually bounded by a the N. E. , and the W. 1 of the N. E. of culture, but he must, in each instance of certain line, sufficiently marked, running said section, making entry No. 106 on homestead or timber-culture, be qualified in a northerly and southerly direction, and October 2, 1879. On May 20, 1879, the as aforesaid to make entry.

that Stover's land lay to the west, and appellant, Hannah, made soldier's homeOf course the above ruling does not ap- Miller's to the east, of said line. There was stead declaratory statement, No. 26, for ply where the application to contest is much testimony given at the hearing in the E. of the N. E. of said section, his based on the allegation that the homestead 'relation to the location of the boundary'filing, however, being limited by Utley's


to the N. E. & of the N. E. – June 3, of the local officers in permitting him to records; and it is customary and right to 1879, Gerard tiled declaratory statement, make the entry was illegal. Said entry permit such amendment where good faith No. 243, for said tract, alleging settlement is hereby cancelled.

is shown, and where the question is beon July 16, 1872. About October 1, 1879, Touching Hannah's claim, it is true that tween the Government and the claimant. Hannah appeared before the local officers he initiated it by filing a declaratory state- I am of opinion that he is entitled to have and offered to make entry, which offer ment, and that this is not the usual way his entry recorded as of October 1, 1879, they refused on the ground that Gerard of claiming an additional" entry; but it provided it appears upon due inquiry that had meanwhile filed for the same tract, is evident from the law that the filing of a he had a right to the additional entry at informing him, however, that his rights declaratory statement is matter of personal that date. would not be thereby prejudiced. On privilege, and, being provided for the Your decision is accordingly reversed. January 7, 1880, Gerard was permitted to claimant's benefit, it should not be conmake cash entry. By instruction from strued to his injury. The decision upon

THOMAS vs. McCLURE—AND YEATES, your office, trial was had in June, 1881; which you primarily rest your action (J.

INTERPLEADER. and during its course it appeared that in N. Langford, 1 Copp's L. 0., 99), which Act of June 15, 1880.Benefit of Interpleader.1869 Hannah had made a homestead entry affirmed a rejection by your office of a sol- In view of the facts, the defendant is held not for an eighty-acre tract in Iowa, which dier's declaratory statement in a claim for entitled to purchase under the act of June 15, about a year afterwards he abandoned," additional” entry; was made in respect

1880, as such purchase is intended solely to

benefit the interpleader, and would result in and that Gerard at and prior to date of to a case where an adverse interest had

defeating the superior equities of the plaintiff, filing his declaratory statement, and after- attached, and where the claimant was still COMMISSIONER MCFARLAND to Reg. and Rec., wards to date of trial, though he had cul- in possession of the land covered by his Dardanelle, Ark., Aug. 30, 1883. (R. F. F.) tivated and improved the land in contest " original” entry, and it was made prior I have considered the case of B. T. to some extent, had his actual residence to the recognition of a right to additional Thomas vs. David McClure, defendant, and on land in section 27, acquired by pur- entries by persons who had abandoned John C. Yeates, interpleader, involving chase from the railway company and their original claims (John W. Hays, 3 McClure's H. E., No. 13,828, made June owned by him, and that in fact he had not Copp's L. O., 21); consequently that de-1, 1879, on the S. N. W. & Sec. 1, Twp. resided on the tract in contest. It also cision is not applicable to the case at bar, 2 N., R. 23 W., on appeal by the interappeared that Hannah had resided on, where an adverse interest had not attached, pleader from your decision in favor of the cultivated, and improved the tract in and where there had been an abandonment plaintiff. question since July, 1879.

of a prior claim. Without expressing an The contest was instituted May 17, 1882, On November 23, 1882, you held that it opinion upon the question whether or not on the ground of abandonment. On June did not appear that Hannahı was entitled such an entry as this, requiring residence 1st following, the defendant, McClure, preto or did apply under the law providing and cultivation of the tract, may be ini- sented an application to purchase the land for “additional” entries, and, as he was tiated by a declaratory statement, it suf- above described under the act of June 15, not privileged to make a second " original" fices to say that the substantial act to be 1880, but no Receiver having then qualified entry, you awarded the laud to Gerard. performed is the entry; and if Hannah was in place of the late Receiver, Thomas Boles, Hannah made a motion for a review of this entitled to enter under the soldier's home-such application was rejected by you. decision, and at the same time filed the stead laws, and made entry accordingly, On June 28th, 1882, the day set for hearrequired affidavit concerning his military then his claim to the tract is good. The ing of the case, the plaintiff, Thomas, filed service, and an application (and affidavit) facts in evidence being true, in October, a supplemental or amended affidavit of to make " additional” entry of the tract in 1879, he was entitled to enter for eighty contest, alleging further, and among other contest. This motion you denied on the acres, under section 2306, Revised Stat- things, that he had purchased the land grounds stated above, and on the further utes. Being so entitled, he made a good from the defendant, and was in actual posground that there had been no certification constructive entry when he offered to session of the same, whereupon a continof his right to additional entry, as re- make an entry, and was erroneously re- uance was granted to August 4th followquired by General Circular of October 1, fused by the local officers; such is the set-ing. On said latter date the interpleader, 1880, from which it followed “that Han- tled rule of this Department.

Yeates, appeared and filed an interplea, nah acquired no rights by his alleged ap- It is true, also, that the records fail to and asked to be made a party defendant plication to enter in October, 1879; for his show that Hannah applied under section to the contest, on the ground that he was right to an additional entry afterwards 2306; but, if the local officers had per- the legal owner and also in possession of ascertained could not relate back to that mitted him to make the entry, such fact the land. His motion was granted; and period and take effect upon the tract in would in due course have appeared, for the respective parties being present with contest, especially in view of the entry of there is no evidence of fraud or deceit in their counsel, and waiving all irregulariGerard.” From these decisions Hannah the omission, and it is therefore not properties of procedure, the case was taken up appeals, and the appellee rests his case to allege as fatal a defect for which the and heard. upon the issue as presented in said decis- officers of the government were responsi- The testimony shows that the defendant ions, as above set forth.

ble, the rejection of the proposed entry never made any improvements on the land, I find myself unable to concur in your being based on other grounds.

but abandoned the same in December, 1879, view of the law of this case. In the first Again, as to the objection that Hannah's or January, 1880, and moved to Montgomplace, touching the entry of Gerard, the right to an additional entry has not been ery county, Arkansas, distant some twenrule laid down in Ferguson vs. McLaugh- ascertained according to the regulations, ty-five miles from the tract in controversy, lin (6 Otto, 174) is that a pre-emption it is to be observed that the existence, and where he has ever since resided. It furclaimant, at time of making final proof, not the bare ascertainment, of the right ther appears that the plaintiff has been “ could not establish a valid claim for any should be the controlling factor in any residing upon and improving said land quarter section, or any part of a quarter just judgment. The requirements referred ever since the defendant's abandonment section, unless his dwelling house, his ac- to are matters of form, devised for the pre- thereof, intending in good faith to make tual residence, was on some part of that vention of frauds; and since it appears it his home. In February, 1880, he built quarter section.” This was based on a that there is no fraud in this case, and a house on the land, and has since made limitation in the act of September 4, 1841, since no adverse right has attached, they considerable improvements thereon. There which is incorporated into Section 2259 of may not be permitted to intervene to the is also evidence showing that just prior to the Revised Statutes. In view of said extent of a denial of justice. Hannah has, his abandonment of said land defendant rule, Gerard, whose actual residence was in fact, recently filed the usual affidavits, sold his interest in the same to plaintiff not on the land claimed by him, had no proof of service, and application for ad- for the sum of seven dollars, and transvalid right to enter for it, and the action 'ditional entry, with a view to amend the ferred his duplicate receipt to the inter

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