the surviving parent has only completed
the preliminary forms (affidavit and appli-
cation) and has not paid the fee and com-
missions necessary to complete the entry.
In former years no credit was given for
settlement prior to entry, and no right ac-
quired by such settlement; but the act of
May 14, 1880, declares that the home-
steader's right shall relate back to date of
settlement, provided that he makes his
homestead application within the proper
period. Instances may, and undoubtedly
will, hereafter arise, in which infant chil-
dren will inherit the right acquired by a
parent who settles upon unsurveyed land
makes valuable improvements thereon and
dies before the survey of the land. In
such a case I think the administrator or
guardian of the infant children would
have an undoubted right to perfect the
deceased parent's claim by making entry
in his (the parent's) name. The case of
Muske, Sr., presents similar features, as
he was prevented from making an entry,
not because the land was unsurveyed, but
because it was reserved from entry until
some months after his death, when the
land was relinquished (as herein before
stated) in recognition of his claim.
is no adverse claim to this land.

There You will, therefore, permit Fred Muske, Jr., to enter the land under the Hd. law, as administrator for the benefit of the infant children of Fred Muske, Sr., de

ceased.

Your endorsement upon the final proof vs. Western Pacific Railroad Company; is as follows: "Rejected for the reason but a careful examination of this decision that the within testimony does not show shows that the cases are not analogous. an actual residence by claimant of five So likewise the case of Solomon Males, years." Phillips, through his attorney, decided by this office July 10, 1876, and M. B. Gibson, appeals from this decision which is referred to by Sheppard, cannot on the ground that the same "is contrary be accepted as authority for allowing final to law and rulings of the General Land papers to issue on a homestead entry Office," and urges that inasmuch as his where no residence is shown. residence was established on the land I therefore decline to modify my dewithin six months from date of entry, he cision of December 1, 1882. was not in default, and his time of residence counts from the time he filed his homestead entry."

Your action in rejecting the final proof was erroneous, and the exceptions thereto by Phillips are well taken and are hereby sustained. The proof is satisfactory, and upon the payment of commissions due, you will issue final receipt and certificate in the case.

GEORGE W. SHEPPARD.

SAMUEL M. MITCHELL.

Act of June 15, 1880-Cancellation of Entry.-
The operation of this act is not affected by
the cancellation of an entry. What considera-
tions govern its application to an entry. The
tract in question was embraced in three home-
stead entries, which have successively been
cancelled. The second entryman applies to
purchase. His application is permitted, sub-
ject to adverse rights.
COMMISSIONER MCFARLAND to Reg. and Rec.
Montgomery, Ala., April 17, 1883. (C. T. Y.)

Residence.-A homestead entryman, who culti- I have considered the appeal of Sam'l vates and improves the land embraced in M. Mitchell by his attorney from your dehis entry, but who never resided thereon, is not excused because elected to a public office cision of March 15, 1883, rejecting his apwhich requires his residence elsewhere. plication to purchase under the act of COMMISSIONER MCFARLAND to Register and Re-June 15, 1880, the land embraced in his ceiver, Bloomington, Nebraska, April 12, 1883. homestead entry No. 3586, made April I have received your letter of February 19, 1871, for the S. W. of N. W. of 8th last, transmitting an application for Sec. 24, 10 S., 11 W., on the following the reconsideration of my decision of grounds, viz.; "1. The land is classed as December 1, 1882, rejecting proof ten- coal. 2. The claimant voluntarily redered by George W. Sheppard, on home- linquished the entry August 25, 1874." The administrator may also make final stead entry No. 3101, covering the S. E. The records show said tract to be emproof after due publication, and you will 23, 2, 16 W. The party filed homestead braced in homestead No. 1320, made Dec. issue final papers in the name of such of declaratory statement No. 1088 for the 19, 1867, by William Masgrove, and canthe children as were under the age of land, March 15, 1875, and the entry was celled by voluntary relinquishment Dec. twenty-one years at date of Muske's death. made September 14, 1875. The proof 17, 1869. Said tract was subsequently The names of the children to whom the shows that a house was built on the entered by the appellant, supra, and canright and fee inures under Sec. 2292, R. land during the following month; that celled by voluntary relinquishment AugS., may be determined by certificate of about seventy-five acres are under culti-ust 25, 1874. Subsequent thereto, to wit: Probate Judge, and each of the names vation, and that crops of wheat, corn Nov. 2, 1874, said tract was entered by must be given in final certificate. Muske's, and rye have been raised each year Mary A. Hyde per homestead entry No. Sr., application and affidavit made Sep- since 1877, but no residence has been es- 5620, which was cancelled Jan. 9, 1883, tember 8, 1874, and now on file in this tablished on the tract by Sheppard or for failure to make final proof within the office, will be filed with the entry papers any member of his family. In March, statutory period. when they reach this office. 1876, he was appointed deputy county The first objection is cured by the act clerk of Franklin county; in January, of March 3, 1883, which excludes the 1877, he was appointed clerk vice former public lands in Alabama from the operoccupant resigned, was elected to the same office in the fall of 1877, and continued to hold the same until January,

BARNEY PHILLIPS.

Residence-Date of Entry.-The five years allowed in a homestead entry, date from entry and not from the commencement of personal

residence on the land entered. COMMISSIONER MCFARLAND to Reg. and Rec., Crookston, Minn., April 9, 1883. (C. H. B.) I am in receipt of your letter of Feb. 23, 1883, transmitting the appeal of Barney Phillips from your decision of January 26, 1883, rejecting final proof offered by him in homestead entry No. 915, S. 1, S. E. 14, 137, 43.

1880.

ation of the mineral laws, and provides for their disposal the same as agricultural lands. The mere fact of the land being classed as coal, or reported as valuable for The proof, which was made October 2, minerals, is not per se an objection to 1882, nearly three years after the expir- entry, or to the issuance of patent thereation of his term of office, was rejected for for. The second objection, that the claimthe reason that he had not established a ant voluntarily relinquished the entry, is residence on the land embraced in his no bar to an application to purchase under entry, and consequently his case did not the act of June 15, 1880, as it can make come under the rule of the Department no difference to the government whether which permits a person, who after estab- the entry has been canceled or not, and it The facts are that Phillips made his lishing an actual residence thereon is is of no consequence whether the cancellaentry November 6, 1877, established an elected or appointed to a public office re- tion, which was the act of the Department, actual bona fide residence on the land quiring his continuous residence at some was induced by the voluntary act of the March 15, 1878, and had continuously re- place other than his homestead, to be tem- entryman or not, as the mere act of cansided thereon and cultivated the same up porarily absent therefrom during the term cellation has no effect to prevent an entry to date of final proof-January 14, 1883, of such office. under the statute. The only question a period of four years, nine months and In his application for a review, Mr. that presents itself in considering an ap twenty-nine days from date of beginning Sheppard refers to a decision rendered by plication under the act, is, was the land actual residence, and of five years, two the acting Secretary of the Interior, properly subject to the original entry, months and eight days from date of entry. October 25, 1873, in the case of Benson and will the proposed entry interfere with

the rights or claims of others who have subsequently entered such lands, etc?

Mr. Mills is entitled to the privilege of re- tional eighty acres, adjoining the land emlinquishing his entry and making another braced in his original entry, * * * or if The case before me presents that of a under act of March 3, 1879, where a con- such person so elect he may surrender his tract of land, heretofore covered by three test has been initiated for abandonment. entry to the United States for cancellation, separate homestead entries, all of which If so, the contest must be dismissed, and and thereupon be entitled to enter lands haye been duly canceled, and are pre- the contestant would be deprived of his under the homestead laws the same as if sumed to have been legal; upon the can- 30 days right to enter the land under the surrendered entry had not been made, cellation of the last entry, the land re- act of May 14, 1880, and the land in con- *** and the residence and cultivation verted to the public domain, and was sub-troversy would be subject to entry by the of such person upon and of the land emject to entry by the first legal applicant first legal applicant. braced in his original entry, shall be conthereafter. In the absence of any equities, On a full consideration of this question, sidered residence and cultivation for the as between the three entrymen, their I am of the opinion that the act of March same length of time upon and of the land rights as beneficiaries of the act of June 3, 1879, gave from that date to Mr. Mills embraced in his additional or new entry, 15, 1880, are equal, the first applicant be- the privilege to relinquish his entry, if he and shall be deducted from the five years' ing entitled to recognition. The appellant so desires, and make another entry, and residence and cultivation required by appears to be the second entryman: there- that the subsequent act of May 14, 1880, law." fore, his rights are subservient to any cannot be construed as in any manner in- This statute contemplates an existing adverse claim that may have attached sub- terfering with the provisions of said act of original entry on land which that emsequent to the cancellation of his entry, March 3, 1879, from the fact that it is un- braced in the new entry shall adjoin, and including any equities that may exist necessary, in making applications similar which may be surrendered, and credits the favorable to the later entryman. to that of Mr. Mills, to show any compli- new entry with the length of residence ance with law as to residence and cultiva- and cultivation under the original entry, tion of the original homestead. Hence, if requiring, however, actual cultivation and an abandonment was shown by the contest, residence on the land embraced in the new or the party acknowledged he had not entry for at least one year. If there is no complied with the law in every respect, it original entry in existence, there is no would not be considered as affecting his land to which that embraced in the new right under the act of March 3d, 1879. entry can adjoin, nor is there an entry which can be surrendered; and as all Birchfield's rights are extinguished by cancellation of his original entry, he became thenceforth a stranger to the land, with no entry upon which to base his additional claim, and with no former residence or cultivation which the statute contemplates in connection therewith.

Your decision is hereby reversed, and the application of Mitchell will be allowed, upon the payment of the government price for the land, subject to any adverse rights that may have attached.

M. V. B. MILLS.

Contest-Act of May 14, 1880-Act of March 3, 1879. An additional homestead entry under the act of March 3, 1879, is granted, notwithstanding a contest initiated for abandonment of the original homestead entry. COMMISSIONER MCFARLAND to Reg. and Rec., Gainesville, Florida, April 6, 1883. (H. F. S.) Referring to your letter of October 18, 1881, transmitting appeal of M. V. B. Mills from your action in rejecting his application to make a new homestead entry under the act of March 3, 1879, I have to state that it appears from the records of this office that said Mills made homestead entry No. 4073, Gainesville series, September 23, 1876, for S. E. of N. W. and N. E. of S. W. 1, Sec. 6, Tp. 3 South, Range 14 East, within six miles limit of the Pensacola and Georgia Railroad. Mr. Mills sets forth under oath that he applied to you to be allowed to relinquish his present entry, and make a new one under the act above referred to, on the ground that he had attempted to make a residence on the land in question, that he built and erected buildings thereon and they were torn down several times during the night; that he planted crops and trees upon the place, and they were destroyed by the same parties; and furthermore he was driven from his place

With this view of the case, your decision is not sustained, and you will advise Mr. Mills that he will be allowed to relinquish his entry No. 4073, and make a new one, as provided by the act referred to. When a relinquishment properly executed has been filed with you, you will allow the new entry to be made, after cancelling the old entry on your records, and therefore report the cancellation to this office, when the contest will be dismissed.

If, however, after a reasonable period Mr. Mills fails to file such relinquishment, you will report the matter to this office, when action will be taken in the contest now pending.

JOSEPH BIRCHFIELD.

Additional Homestead Entry-Act of March 3,
1879. This act contemplates the existence
of an original entry which other land may
adjoin or which may be surrendered. A party
whose original entry has been canceled, has
nor ights under this law.
SECRETARY TELLER to Commissioner Mc Far-
land, April 2, 1883.

I have considered the appeal of Joseph
Birchfield from your decision of April 25,
1882, rejecting his application to make an
additional homestead entry under the act
of March 3, 1879, (20 Stat., 472).

It appears that Birchfield made a home

He

The case of Annie Anderson, cited by appellant (COPP, Febr'y, 1882), is not authority for this. In that case there was an existing original entry, and it was decided upon a wholly distinct question from that herein involved.

Birchfield has no right, in my opinion, to the entry applied for, and I affirm your decision.

CIRCULAR INSTRUCTIONS OF MARCH 20, 1883.
Entries Under the Homestead, Pre-emption,
and Timber Culture Laws.
To REGISTERS AND RECEIVERS.

You are instructed to deliver to appli cants for land under the homestead, preemption, or timber culture acts, a copy of this circular, and to especially call the attention of the applicant to the requirements of the law under which the application is made.

RESIDENCE OF APPLICANT.

1. The applicant must in every case state

SECOND FILINGS AND ENTRIES.

through fear of being killed or receiving stead entry upon a tract of forty acres, in in his application his place of actual resi great bodily harm; but that you rejected Montgomery, Alabama, land district, Sep-dence, and the post office address to which his application on account of a contest tember 14, 1869, and that the same was notices of contest or other proceedings pending against Mr. Mills' homestead for canceled February 27, 1879, for failure to relative to his entry shall be sent. abandonment. In your letter transmit- make final proof within seven years. ting the appeal of Mr. Mills, you state now applies to enter forty additional that the ground of rejection was, as stated acres. The act of March 3, 1879, pro- 2. A party making a legal filing or by Mr. Mills, the pending contest. vides that "any person who has, under entry under any one of the foregoing acts The contest referred to, Stephen Miller existing laws, taken a homestead on any exhausts his right under that act, and canvs. M. V. B. Mills, was made July 15, 1881, even section within the limits of any rail- not thereafter make another filing or entry and reported to this office October 8, 1881, road (as Birchfield's former entry was) under said act. four days prior to your transmission of*** and who by existing laws shall the appeal of Mr. Mills. have been restricted to eighty acres, may, 3. Applications to amend filings or enThe question that now arises is whether enter under the homestead laws an addi- tries should be filed with the Register and

ALTERATIONS IN APPLICATIONS.

Receiver, and be by them transmitted for land office and present his application, The fee is $2, except in the Pacific States the consideration of this Office. Registers and must make the required affidavits be- and Territories, where the fee is $3. and Receivers will not change an entry or fore the Register and Receiver. 25. This statement may be filed either filing so as to describe another tract, or 12. He must then establish his actual personally or by an agent, and the soldier change a date after the same has been re-residence (in a house) upon the land is thereafter allowed six months within within six months from date of entry, and which to make his entry and commence must reside upon the land continuously his settlement and improvement. for the period prescribed by law.

22. In case of the death of the soldier, Land at $1.25 per acre. and the death or re-marriage of the $1400 widow, the minor children of the soldier, 600 by a duly appointed guardian, are entitled In Arizona, California, Colorado, Idaho, to the privileges of the father. Montana, Nevada, New Mexico, Oregon, Utah, Washington and Wyoming—

been "offered," the declaratory statement may acquire from the United States shall must be filed within three months from inure in whole or in part to the benefit of date of settlement. If upon "offered" any person except himself. land, the filing must be made within thirty 59. Any person swearing falsely fordays. feits all right to the land and to the pur45. If the land is unsurveyed at the chase money paid, besides being liable to time of settlement, the declaratory state- prosecution under the criminal laws of ment must be filed within three months the United States. after the date of filing the township plat in the local office.

46. Failure to file a declaratory state- quired to make oath that his entry is ment within the time prescribed makes made for the cultivation of timber and for the land liable to the claim of an adverse his own exclusive use and benefit; that he settler who does file notice of his inten- makes the application in good faith, and tion at the proper time. not for the purpose of speculation, nor directly or indirectly for the use or benefit of any other person or persons whomsoever; and that he intends to hold and cultivate the land, and to wholly comply with the provisions of the act.

65. Final proof may be made at the expiration of eight years from date of entry. It must be shown that for the said eight years the trees have been planted, promust be made to the satisfaction of the tected and cultivated as aforesaid; that Register and Receiver, whose decision, as not less than 2700 trees were planted on in other cases, is subject to examination each of the ten acres, and that at the time and review by this office. of making proof there are growing at 56. Publication of notice to make proof least six hundred and seventy-five (675) is required as in homestead cases. living, thrifty trees to each acre.

70. The Government will at any period, upon proper application to contest, or upon its own information, investigate alleged fraudulent or illegal timber culture entries, or alleged failure to comply with the law after entry, and such entries will be canceled upon suflicient proof either of illegality or failure to comply with the law.

71. The land office fee for an entry of more than 80 acres is $14; for 80 acres or less, $9.

CAUTION TO APPLICANTS.

Persons making filings or entries under the homestead, pre-emption, or timber culture acts, are cautioned that the laws authorize entries to be made only for the use and benefit of the party making the same, and that entries or filings are not allowed by law to be made for the benefit of others nor for speculation, but all entries must be made in good faith, and the requirements of law must be honestly and faithfully complied with.

about one and one-half tons of hay on the dence on the tract during eleven of the
land, and built a pen for its storage. He thirty-three months within which a pre-
has not cultivated any portion of the land, emptor must perfect his entry, with his
and the above constitutes his whole im- slight improvements, manifest a want of
provements. During this entire time he good faith, and a purpose to acquire a
was a resident housekeeper with his family tract of the public land without compli
at Miles City, where he was engaged in ance with the required conditions; and I
various pursuits, and where he had re- concur with the local officers in the opin-
sided for several years; and he makes no ion that neither as to inhabitancy nor im-
pretence of residence on the tract, except provement is he within the requirements
as above stated. He alleges in excuse for of the pre-emption law, and that his filing
his absence therefrom his official duties as should be canceled.
county assessor and census enumerator, the
sickness of his daughter, and his poverty.
It is understood that the land is not far
distant from Miles City; that residence
thereon would not materially interfere
with the discharge of any official duty, and
that no law of the United States, or of the
Territory, required such officer to reside
at Miles City. Even did they, it would
not excuse non-compliance with an express
requirement of the pre-emption law, in
order to suit his personal convenience.

The case is not within that of Benson vs. W. P. Railroad Company (Copp's Land Laws, 412), where the pre-emption filing of a public officer, who had resided a long while on the land and whose good faith was manifest, was sustained, although he left it for a temporary residence at the capital of the State, under a law requiring his residence there-because Flanagan never established his residence on the land in question.

Intentions Residence.-Intentions are not the
equivalent of the actual residence and im-
provement; but continuous compliance with
all the requirements of the pre-emption law
is essential, and failure therein will not be
Nor is the sickness of his child a valid
overlooked except under urgent circumstan-
ces, and for controlling reasons.
This did not occur until the
Public Officer. The plea of being a public offi- latter part of October-more than seven
cer in this case is not sustained.
months from his settlement-nor was she
SECRETARY TELLER to Commissioner McFar-so ill as to require a physician more than
land, January 6, 1883.

I have considered the case of W. W. Carland vs. A. F. Flanagan, involving the S. W. of N. W. 4, the N. of S. W., and lot 4 of section 2, township 27, R. 47, Miles City, Montana, on appeal by Carland from your decision of January 21, 1882, holding his entry subject to the claim of Flanagan.

excuse.

five or eight times, nor her mother's at
tendance, who, during the alleged time of
this sickness, was a teacher in the public
schools of Miles City. The excuse of
poverty is equally untenable. During the
year 1880, and up to the date of Carland's
entry, Flanagan received for his services
as assessor $804, and as census enumera-
tor $163; and between September, 1880,
and January 5, 1881, his wife received for
her services $200, making a total income
from these sources of $1,167.

On these facts you sustain the filing of
Flanagan because,.as you think, good faith
characterized his intention as to residence,
which intention, you state, "is the con-
trolling feature for consideration;" and
that "if he settled upon the land, primar-
ily, with the view of making it his home,
and had given continuous evidence of such
intention (which in your opinion he did)
up to the date of trial, he had not forfeited
his right of entry under the law by his
mere failure to execute the intention."
I do not concur in this view. The law

Flanagan filed declaratory statement May 12, alleging settlement March 15, 1880. He drove a stake with a notice thereon describing his claim. May 24th he hauled logs for a house, and on the next day built up its walls, cut a doorway and laid poles for supporting a dirt roof, and slept and ate on the land two days and nights. He did nothing more for about five months, when, October 15th and 27th, he hauled logs and poles, and on November 10th commenced digging a well, at which he worked twelve days; he hauled stones for it on the 24th, and finished it on the 26th. On December 5th he plastered the house with mud; on the 10th put in a window, stove and pipe, is not satisfied by intentions. They are not and table, and ate and slept there. On the 12th he went to the woods for logs for an addition to the house, and slept in the house the night of the 14th. On the 18th he hauled lumber for a floor, and on January 1, 2 and 3, 1881, hauled manure to the house and banked it. He has it

Your decision is reversed.

SAME ON REVIEW.

No Appeal.-Carland having made reasonable
effort to appeal, and the want of appeal hav-
ing arisen from non-action of his attorney, or
non-receipt at the land office of his specifica-
tions of error, the former decision is allowed
to stand.
SECRETARY TELLER to Commissioner McFar-
land, April 2, 1883.

On January 6th last, on appeal by Carland from your decision of January 21, 1882, in the case of Carland vs. Flanagan, adverse to him, and involving lands in the Miles City, Montana, land district, I reversed your decision and awarded the lands to Carland. A motion has since been filed by Flanagan for reconsideration and vacation of my decision, upon the ground that appeal was not duly taken from your decision.

It appears that notice of your decision was communicated to the parties February 1, 1882; that on March 31st the attorney for Carland filed in the local office notice of appeal therefrom, stating therein that the reasons for appeal had been forwarded by mail to this Department; that after motion before you by Flanagan's attorney to dismiss the appeal because not properly perfected, and upon your request for the facts, the local officers transmitted to you the affidavit of Carland to the effect that, after learning of your decision, he directed his attorney to appeal therefrom; that his attorney subsequently informed him that an appeal had been duly filed, and he so supposed, and did not know to the contrary until so advised by the local officers on May 30th. On August 10th, after oral argument, you denied the motion to dismiss the appeal, and allowed Carland to perfect it; and on August 26th the affidavit of his attorney, sworn to July 21st, was filed, to the effect that on March 31st, when he filed notice of appeal in the local office, he forwarded his specifications of error to this Department.

Carland having thus made reasonable efforts to secure an appeal, the defect in which, if any, resulted from the non-action of his attorney, or from the non-receipt of the specifications of error which had been duly transmitted by mail, I disregarded the equivalent of the actual residence and this technical objection, and allowed the improvement demanded; but continuous appeal, as within the principle announced compliance with all the requirements of by Secretary Schurz in the case of Ogg the law is essential, and failure therein vs. McDonald (Copp, March, 1880), and will not be overlooked except under urgent by Acting Secretary Bell in the case of circumstances, and for controlling reasons. John Powers (ib., March, 1882). In the

Flanagan's neglect to establish a resi- former case it was held that although the