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the surviving parent has only completed Your endorsement upon the final proof us. Western Pacific Railroad Company; the preliminary forms (affidavit and appli- is as follows: “Rejected for the reason but a careful examination of this decision cation) and has not paid the fee and com- that the within testimony does not show shows that the cases are not analogous. missions necessary to complete the entry. an actual residence by claimant of five So likewise the case of Solomon Males, In former years no credit was given for years.” Phillips, through his attorney, decided by this office July 10, 1876, and settlement prior to entry, and no right ac- M. B. Gibson, appeals from this decision which is referred to by Sheppard, cannot quired by such settlement; but the act of on the ground that the same “is contrary be accepted as authority for allowing final May 14, 1880, declares that the home to law and rulings of the General Land papers to issue or a homestead entry steader's right shall relate back to date of Office,” and urges that inasmuch as his where no residence is shown. settlement, provided that he makes his residence was established on the land I therefore decline to modify my dehomestead application within the proper within six months from date of entry, he cision of December 1, 1882. period. Instances may, and undoubtedly was not in default, and his time of resiwill, hereafter arise, in which infant childence counts from the time he filed his dren will inherit the right acquired by a homestead entry.”
SAMUEL M. MITCHELL. parent who settles upon unsurveyed land Your action in rejecting the final proof Act of June 15, 1880—Cancellation of Entrymakes valuable improvements thereon and was erroneous, and the exceptions thereto The operation of this act is not affected by dies before the survey of the land. In by Phillips are well taken and are hereby the cancellation of an entry. What considerasuch a case I think the administrator or sustained. The proof is satisfactory, and tions govern its application to an entry. Tlie guardian of the infant children would upon the payment of commissions due,
tract in question was embraced in three home
stead entries, which have successively been have an undoubted right to perfect the you will issue final receipt and certificate
cancelled. The second entryman applies to deceased parent's claim by making entry in the case.
purchase. His application is permitted, subin his (the parent's) name. The case of
ject to adverse rights. Muske, Sr., presents similar features, as
COMMISSIONER MCFARLAND to Reg. and Rec. he was prevented from making an entry,
GEORGE W. SHEPPARD.
Montgomery, Ala., April 17, 1883. (C. T. Y.) not because the land was unsurveyed, but Residence.-A homestead entryman, who culti- I have considered the appeal of Sam'l because it was reserved from entry until
vates and improves the land embraced in M. Mitchell by his attorney from your de
his entry, but who never resided thereon, is some months after his death, when the
not excused because elected to a public office cision of March 15, 1883, rejecting his apland was relinquished (as herein before which requires his residence elsewhere. plication to purchase under the act of stated) in recognition of his claim. There COMMISSIONER MCFARLAND to Register and Re- June 15, 1880, the land embraced in his is no adverse claim to this land.
ceiver, Bloomington, Nebraska, April 12, 1883. homestead entry No. 3586, made April You will, therefore, permit Fred Muske, I have received your letter of February 19, 1871, for the S. W. of N. W. of Jr., to enter the land under the Hd. law, 8th last, transmitting an application for Sec. 24, 10 S., 11 W., on the following as administrator for the benefit of the in- the reconsideration of my decision of grounds, viz.; “1. The land is classed as fant children of Fred Muske, Sr., de- December 1, 1882, rejecting proof ten- coal.
2. The claimant voluntarily receased.
dered 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 BARNEY PHILLIPS.
1877, he was appointed clerk vice former public lands in Alabama from the operResidence—Date of Entry.—The five years al- occupant resigned, was elected to the ation of the mineral laws, and provides
lowed in a homestead entry, date from entry same office in the fall of 1877, and con- for their disposal the same as agricultural and not from the commencement of personal tinued to hold the same until January, lands. The mere fact of the land being residence on the land entered. 1880.
classed as coal, or reported as valuable for COMMISSIONER MCFARLAND to Reg. and Rec., The proof, which was made October 2, minerals, is not per se an objection to
Crookston, Minn., April 9, 1883. (C.H.B.) 1882, nearly three years after the expir-entry, or to the issuance of patent thereI am in receipt of your letter of Feb. ation of his term of office, was rejected for for. The second objection, that the claim23, 1883, transmitting the appeal of Bar- the reason that he had not established a ant voluntarily relinquished the entry, is ney Phillips from your decision of Janu- residence on the land embraced in his no bar to an application to purchase under ary 26, 1883, rejecting final proof offered entry, and consequently his case did not the act of June 15, 1880, as it can make by him in homestead entry No. 915, S. 1, come under the rule of the Department no difference to the government whether S. E. 14, 137, 43.
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 aptwenty-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 Mr. Mills is entitled to the privilege of re- tional eighty acres, adjoining the land emsubsequently entered such lands, etc? linquishing 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 have 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 Your decision is hereby reversed, and ance with law as to residence and cultiva- and cultivation under the original entry, the application of Mitchell will be allowed, tion of the original homestead. Hence, if requiring, however, actual cultivation and upon the payment of the government an abandonment was shown by the contest, residence on the land embraced in the new price for the land, subject to any adverse or the party acknowledged he had not entry for at least one year. If there is no rights that may have attached.
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 M. V. B. MILLS.
With this view of the case, your decis- which can be surrendered ; and as all Contest-Act of May 14, 1880-Act of March 3, ion is not sustained, and you will advise Birchfield's rights are extinguished by the act of March 3, 1879, is granted, not- Mr. Mills that he will be allowed to relin- cancellation of his original entry, he bewithstanding contest initiated for abandon- quish his entry No. 4073, and make a new came thenceforth a stranger to the land,
ment of the original homestead entry. one, as provided by the act referred to. with no entry upon which to base his adCOMMISSIONER McFarland to Reg. and Rec., When a relinquishment properly executed ditional claim, and with no former resi
Gainesville, Florida, April 6, 1883. (H. F. S.) has been filed with you, you will allow the dence or cultivation which the statute
Referring to your letter of October 18, new entry to be made, after cancelling the contemplates in connection therewith. 1881, transmitting appeal of M. V. B. old entry on your records, and therefore The case of Annie Anderson, cited by Mills from your action in rejecting his ap- report the cancellation to this office, when appellant (COPP, Febry, 1882), is not auplication to make a new homestead entry the contest will be dismissed.
thority for this. In that case there was under the act of March 3, 1879, I have If, however, after a reasonable period an existing original entry, and it was deto state that it appears from the records Mr. Mills fails to file such relinquishment, cided upon a wholly distinct question of this office that said Mills made home- you will report the matter to this oflice, from that herein involved. stead entry No. 4073, Gainesville series, when action will be taken in the contest Birchfield has no right, in my opinion, September 23, 1876, for S. E. I of N. W. now pending.
to the entry applied for, and I affirm your and N. E. of S. W. 1, Sec. 6, Tp. 3
decision. South, Range 14 East, within six miles
JOSEPH BIRCHFIELD. limit of the Pensacola and Georgia Rail- Additional Homestead Entry—Act of March 3, CIRCULAR INSTRUCTIONS OF MARCH 20, 1883. road. Mr. Mills sets forth under oath 1879.—This act contemplates the existence Entries Under the Homestead, Pre-emption, that he applied to you to be allowed to of an original entry which other land may
and Timber Culture Laws.
whose original entry has been canceled, has To REGISTERS AND RECEIVERS.
You are instructed to deliver to appli. on the ground that he had attempted to SECRETARY TELLER to Commissioner McFar-cants for land under the homestead, premake a residence on the land in question, land, April 2, 1883. that he built and erected buildings thereon
emption, or timber culture acts, a copy of
I have considered the appeal of Joseph this circular, and to especially call the atand they were torn down several times Birchfield from your decision of April 25, tention of the applicant to the requireduring the night; that he planted crops 1882, rejecting his application to make an ments of the law under which the applicaand trees upon the place, and they were additional homestead entry under the act tion is made. destroyed by the same parties; and fur- of March 3, 1879, (20 Stat., 472).
RESIDENCE OF APPLICANT. thermore he was driven from his place It appears that Birchfield made a homethrough fear of being killed or receiving stead entry upon a tract of forty acres, in in his application his
place of actual resi
1. The applicant must in every case state 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. He ting the appeal of Mr. Mills, you state now applies to enter forty additional
SECOND FILINGS AND ENTRIES. 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 ALTERATIONS IN APPLICATIONS. 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
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 atsidavits 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 corded.
within six months from date of entry, and which to make his entry and commence RELINQUISHMENTS.
must reside upon the land continuously his settlement and improvement. 4. Entries and filings made for the pur- for the period prescribed by law.
26. The entry can be made only by the pose of holding the land for speculation
13. In the case of a single person, the soldier in person at the local land office, and the sale of relinquishments are illegal actual residence must be established and he must commence his settlement on and fraudulent, and every effort in the within the same time, and must be contin- the land within six months after his filing, power of the Government will be exerted uously and actually maintained for the and must continue to reside on the land to prevent such frauds and to detect and same period.
and cultivate it for such period, as, added punish the perpetrators.
14. The homestead affidavit can be to his military service, will make five 5. The first section of the act of May made before the clerk of the county court years. But he must actually reside upon 14, 1880, provides that when a pre-emp- only in cases where the family of the ap- the land at least one year, whatever may tion, homestead, or timber-culture claim- plicant or some member thereof, is act- have been the period of his military serant shall file a written relinquishment of ually residing on the land which he device. his claim in the land office, the land cov- sires to enter, and on which he has made 27. Entries cannot be made for a soldier ered by such claim shall be held as open bona fide improvement and settlement, by an agent or attorney. to settlement and entry without further and when he is prevented by reason of 28. After a declaratory statement has action on the part of the Commissioner of distance, bodily infirmity, or other good once been filed, whether by an agent or the General Land Office.
cause, from personal attendance at the otherwise, the soldier cannot file again. 6. This act refers to bona fide relin- district land office.
His rights are exhausted by the first filing, quishments of bona fide entries. An
15. In such cases the applicant must and if he does not, within six months, entry fraudulent in its inception is not state in a supplemental affidavit the facts make his personal entry at the land office an entry capable of being relinquished. of such settlement, improvement, and resi- and commence his settlement as required It is an entry to be canceled upon a dence; what acts of settlement have been by law, he obtains no right to the land. proper showing of the facts and circum- performed, and when made; the nature, 29. Á soldier's homestead declaratory stances of the case, whereupon the land extent, and value of the improvements; statement for a tract of land does not prewill become subject to proper entry by what member or members of his family vent anybody else from making an entry the first legal applicant.
are residing on the land, and the length of of the same land, subject to such right as 7. Purchasers of relinquishments of time such residence has been maintained, the soldier may acquire by virtue of actfraudulent filings or entries should under- and the cause, specifically, why the appli- ual residence on the land and full complistand that they purchase at their own cant cannot appear at the local oflice. ance with law. If the soldier does not esrisk so far as the United States is con
16. A false oath taken before a clerk of tablish his residence on the tract as recerned, and must seek their own remedies a court is perjury, the same as if taken quired, the next comer may take the land. under local laws against those who, by before the Register or Receiver.
30. Soldiers are not entitled to land, imposing such relinquishments upon them, 17. The period of actual inhabitancy, nor to bounty land warrants, for their have obtained their money without valua- improvement, and cultivation required military service in the late war, nor can ble consideration.
under the homestead law is five years. title to land be obtained for them by SETTLERS ON UNSURVEYED LANDS. 18. In case of the death of a homestead agents or attorneys. All representations 8. Homestead and pre-emption settlers party, before making final proof, the to the contrary are false, and soldiers and on unsurveyed lands are allowed three widow succeeds to the homestead right. sailors are warned against imposition by months after the filing of the township 19. In case of the death of both father parties who offer to locate land for them, plat of survey within which to put their and mother, the right and fee inure to the or to sell their rights. claims on record. Accordingly no party minor children, if any. will be permitted to make final proof in 20. A homestead right cannot be de- 31. A settler desiring to make final any case until after the expiration of said vised away from the widow or minor proof must file with the Register of the three months. children.
proper land office a written notice, in the THE HOMESTEAD LAWS.
prescribed form, of his intention to do so, 9. Homestead entries can be made for 21. A Union soldier or sailor of the late which notice will be published by the not more than one quarter section, or 160 war is entitled to a deduction from the Register in a newspaper to be by him desacres of land.
five years of the length of time (not ex- ignated as nearest the land, once a week 10. The land-office fees and commis- ceeding four years) of his military ser- for six weeks, at the applicant's expense. sions, payable when application is made, vice. But the soldier (or his widow, as 32. Applicants should commence are as follows:
the case may be,) must actually reside on make their proofs in sufficient time so that In Alabama, Arkansas, Dakota, Flor- the land at least one year before final proof the same may be completed and filed in ida, Iowa, Kansas, Louisiana, Michigan, can be made.
the local office within the statutory period Minnesota, Missouri, and Nebraska
22. In case of the death of the soldier, of seven years from date of entry. Land at $2.50 per acre. Land at $1.25 per acre.
and the death or re-marriage of the 33. The final affidavits and proof should $1400 widow, the minor children of the soldier, be made before the Register or Receiver,
600 by a duly appointed guardian, are entitled but may be made before the judge, or in In Arizona, California, Colorado, Idaho, to the privileges of the father.
his absence before the clerk, of a court of Montana, Nevada, New Mexico, Oregon, 23. Neither the guardian nor the minor record in the county and State, district or Utah, Washington and Wyoming- children are required to reside upon the Territory, in which the land is situated Land at $2.50 per acre. Land at $1.95 per acre. land, but the same must be cultivated and If in an unorganized county, the proof
For 160 acres.......$1600 improved for the period of time during may be made in a similar manner in any
6 50 which the father would have been re- adjacent county in the same State or Ter11. When a person desires to enter a quired to reside upon the tract.
ritory. tract of land upon which he has not estab- 24. The soldier may file a declaratory 34. When proof is made before the lished a residence and made improvements, statement for a tract of land which he in- county officers mentioned, the same must he must appear personally at the district tends to enter under the homestead laws.' be transmitted by the judge or clerk of the
For 160 acres.
For 100 acres..
For 160 acres.......
.$22 00 80
11 00 40
For 160 acres..
For 160 acres.
For 160 acres.
For 160 acres
court to the Register and Receiver, to- been "offered," the declaratory statement may acquire from the United States shall gether with the same fees and commis- must be filed within three months from inure in whole or in part to the benefit of sions that the land officers would have date of settlement. If upon “offered” any person except himself. been entitled to receive if the proof had land, the filing must be made within thirty 59. Any person swearing falsely forbeen made before them and the testimony days.
feits all right to the land and to the purreduced to writing by them.
45. If the land is unsurveyed at the chase money paid, besides being liable to 35. The land office commissions, paya- time of settlement, the declaratory state- prosecution under the criminal laws of ble at time of making final proof, are as ment must be filed within three months the United States. follows: after the date of filing the township plat
THE TIMBER CULTURE ACT. In Alabama, Arkansas, Dakota, Florida, in the local office.
60. A timber culture applicant is reIowa, Kansas, Louisana, Michigan, Minn- 46. Failure to file a declaratory state- quired to make oath that his entry is esota Mississippi, Missouri, and Ne- ment within the time prescribed makes made for the cultivation of timber and for braska_
the land liable to the claim of an adverse his own exclusive use and benefit; that he Land at $2.50 per acre. Land at $1.25 per acre. settler who does file notice of his inten- makes the application in good faith, and
tion at the
not for the purpose of speculation, nor di
47. The land office fee for filing a de- rectly or indirectly for the use or benefit In Arizona, California, Colorado, Idaho, claratory statement is $2.00, except in the of any other person or persons whomsoMontana, Nevada, New Mexico, Oregon, Pacific States and Territories, where the ever; and that he intends to hold and culUtah, Washington, and Wyoming- fee is $3.00.
tivate the land, and to wholly comply Land at $2.50 per acre. Land at $1.25 per acre. 48. A pre-emption filing can be made with the provisions of the act.
3.00 only by an actual settler on the land. A 61. Claimants under the timber culture
filing without settlement is illegal, and no act will be held to a strict compliance 36. The fees for reducing testimony to rights are acquired thereby.
with the terms and conditions of the law. writing in making final proof are, in the 49. The existence of a pre-emption fil- 62. Not more than one-quarter of any former States, 15 cents, and in the latter ing on a tract of land does not prevent section can be entered under this act. States and Territories, 22 cents for each another filing to be made of the same 63. Where 160 acres are taken, at least 100 words. No other land office fees than land, subject to any valid rights acquired five acres must be plowed within one year those stated in this circular are payable or by virtue of the former filing and actual from date of entry. The following, or allowable in homestead cases. settlement, if any.
second year, said five acres must be act50. On offered lands proof and payment ually cultivated to crop or otherwise, and COMMUTED HOMESTEADS. 37. Homestead entries can be commuted date of settlement. must be made within twelve months from another five acres must be plowed. The
third year the first five acres must be to cash only after actual inhabitancy of
51. If the land is unoffered, proof and planted to trees, tree seeds, or cuttings, the land by the homestead party, and his Payment may be made within thirty-three and the second five acres actually cultiimprovement and cultivation of it for a months from date of settlement.
vated to crop or otherwise. The fourth period of not less than six months.
52. A failure to make proof and pay- year the second five acres must be planted 38. A person who commutes a home- ment as prescribed by law, renders the to trees, tree seeds, or cuttings, making, stead entry cannot move from the tract land subject to appropriation by the first at the end of the fourth year, ten acres and settle upon other public land in the legal applicant.
thus planted to trees. same State or Territory as a pre-emptor. 53. The requirements of actual inhabi- 64. Perfect good faith must at all times 39. Proof of settlement and cultivation
tancy and improvement must be observed be shown by claimants. Trees must not for the prescribed period is to be made in as strictly under the pre-emption law as only be planted, but they must be prothe same manner as in pre-emption cases. under the homestead law.
tected and cultivated in such manner as 40. A person commuting a homestead
54. Failure to inhabit and improve the to promote their growth. entry when he has not actually resided land in good faith, as required by law, 65. Final proof may be made at the exupon the land, and improved and culti, renders the claim subject to contest, and piration of eight years from date of entry. vated it as required by law, forfeits all the entry to investigation and cancellation. It must be shown that for the said eight right to the land and to the purchase money paid, and in addition thereto renders him- must be made to the satisfaction of the tected and cultivated as aforesaid ; that
55. Final proof in pre-emption cases years the trees have been planted, proself liable to criminal prosecution.
Register and Receiver, whose decision, as not less than 2700 trees were planted on THE PRE-EMPTION LAW.
in other cases, is subject to examination each of the ten acres, and that at the time 41. The qualifications required of a pre- and review by this office.
of making proof there are growing at emptor are that he (or she) shall be a citi- 56. Publication of notice to make proof least six hundred and seventy-five (675) zen of the United States (or have de- is required as in homestead cases. living, thrifty trees to each acre. clared an intention to become such), over 57. The final aflidavit must be made be- 66. Where less than one quarter section twenty-one years of age or the head of a fore the Register or Receiver, or before of land is entered, the same proportionate family; an actual inhabitant of the tract the clerk of a court of record in the amount of plowing, planting, and cultivaclaimed ; and not be the proprietor of 320 county and State or Territory where the tion of trees must be done as required in acres of land in any State or Territory. land is situated. If in an unorganized entries of 160 acres.
42. A person who has removed from county the proof may be made in a simi- 67. If the trees, seeds, or cuttings are land of his own to reside on public land lar manner in any adjacent county in the destroyed in any one year they must be in the same State or Territory, or who same State or Territory.
replanted. A party will not be released has previously exercised his pre-emption 58. The pre-emptor is required to make from a continued attempt to promote the right, is not a qualified pre-emptor. oath that he has not previously exercised actual growth of timber or forest trees.
43. Lands included in any reservation, his pre-emption right; that he is not the A failure in this respect will subject the or within the limits of an incorporated owner of 320 acres of land ; that he has entry to cancellation. town, or selected as the site of a city or not settled upon and improved the land 68. Only an applicant for the land town, or actually settled and occupied for to sell the same on speculation, but in under the timber culture or homestead purposes of trade and business, and not good faith to appropriate it to his own laws can institute a contest under the for agriculture, or on which there are any exclusive use ; that he has not made any third section of the act of 1878. known salines or minerals, are not subject contract or agreement, directly or indi- 69. Contestants have a preference right to pre-emption.
rectly, in any way or manner, with any of thirty days after cancellation in which 44. If the land is surveyed, but has not person whomsoever, by which the title heal to make entry of the land.
70. The Government will at any period, about one and one-half tons of hay on the dence on the tract during eleven of the upon proper application to contest, or land, and built a pen for its storage. He thirty-three months within which a preupon its own information, investigate al- has not cultivated any portion of the land, emptor must perfect his entry, with his leged fraudulent or illegal timber culture and the above constitutes his whole im- slight improvements, manifest a want of entries, or alleged failure to comply with provements. During this entire time he good faith, and a purpose to acquire a the law after entry, and such entries will was a resident housekeeper with his family tract of the public land without complibe canceled upon sufficient proof either of at Miles City, where he was engaged in ance with the required conditions; and I illegality or failure to comply with the various pursuits, and where he had re- concur with the local officers in the opinlaw.
sided for several years; and he makes no ion that neither as to inhabitancy nor im71. The land office fee for an entry of pretence of residence on the tract, except provement is he within the requirements more than 80 acres is $14; for 80 acres or as above stated. He alleges in excuse for of the pre-emption law, and that his filing less, $9.
his absence therefrom his official duties as should be canceled. CAUTION TO APPLICANTS.
county assessor and census enumerator, the Your decision is reversed. Persons making filings or entries under sickness of his daughter, and his poverty. the homestead, pre-emption, or timber cul- It is understood that the land is not far
SAME ON REVIEW. ture acts, are cautioned that the laws au- distant from Miles City; that residence No Appeal.-Carland having made reasonable thorize entries to be made only for the use thereon would not materially interfere effort to appeal, and the want of appeal havand benefit of the party making the same, with the discharge of any official duty, and ing arisen from non-action of his attorney, or and that entries or filings are not allowed that no law of the United States, or of the
non-receipt at the land office of his specifica
tions of error, the former decision is allowed by law to be made for the benefit of others Territory, required such officer to reside
to stand. nor for speculation, but all entries must at Miles City. Even did they, it would SECRETARY TELLER to Commissioner McFarbe made in good faith, and the require not excuse non-compliance with an express land, April 2, 1883. ments of law must be honestly and faith- requirement of the pre-emption law, in On January 6th last, on appeal by Carfully complied with.
order to suit his personal convenience. land from your decision of January 21, N. C. McFARLAND, Commissioner. The case is not within that of Benson 1882, in the case of Carland vs. Flanagan, DEPARTMENT OF THE INTERIOR, March 20, vs. W. P. Railroad Company (Copp's Land adverse to him, and involving lands in the 1883. Approved : H. M. TELLER, Secretary.
Laws, 412), where the pre-emption filing Miles City, Montana, land district, I reof a public officer, who had resided a long versed your decision and awarded the
while on the land and whose good faith lands to Carland. A motion has since PRE-EMPTIONS.
was manifest, was sustained, although he been filed by Flanagan for reconsideration CARLAND VS. FLANAGAN.
left it for a temporary residence at the and vacation of my decision, upon the Intentions—Residence.—Intentions are not the capital of the State, under a law requiring ground that appeal was not duly taken
equivalent of the actual residence and im- his residence there—because Flanagan from your decision. provement; but continuous compliance with never established his residence on the land It appears that notice of your decision all the requirements of the pre-emption law in question.
was communicated to the parties Februis essential, and failure therein will not be overlooked except under urgent circumstan
Nor is the sickness of his child a valid ary 1, 1882; that on March 31st the attorces, and for controlling reasons.
This did not occur until the ney for Carland filed in the local office Public Officer.—The plea of being a public offi- latter part of October—more than seven notice of appeal therefrom, stating therein cer in this case is not sustained.
months from his settlement—nor was she that the reasons for appeal had been forSECRETARY TELLER to Commissioner McFar- so ill as to require a physician more than warded by mail to this Department; that land, January 6, 1883.
five or eight times, nor her mother's at after motion before you by Flanagan's atI have considered the case of W. W. tendance, who, during the alleged time of torney to dismiss the appeal because not Carland vs. A. I Flanagan, involving the this sickness, was a teacher in the public properly perfected, and upon your request S. W. & of N. W. ), the N. } of S. W. $, schools of Miles City. The excuse of for the facts, the local officers transmitted and lot 4 of section 2, township 27, R. 47, poverty is equally untenable. During the to you the affidavit of Carland to the effect Miles City, Montana, on appeal by Car- year 1880, and up to the date of Carland's that, after learning of your decision, he diland from your decision of January 21, entry, Flanagan received for his services rected his attorney to appeal therefrom ; 18 2, holding his entry subject to the as assessor $804, and as census enumera- that his attorney subsequently informed claim of Flanagan.
tor $163; and between September, 1880, him that an appeal had been duly filed, Flanagan filed declaratory statement and January 5, 1881, his wife received for and he so supposed, and did not know to May 12, alleging settlement March 15, her services $200, making a total income the contrary until so advised by the local 1880. He drove a stake with a notice from these sources of $1,167.
officers on May 30th. On August 10th, thereon describing his claim. May 24th On these facts you sustain the filing of after oral argument, you denied the mohe hauled logs for a house, and on the Flanagan because, as you think, good faith tion to dismiss the appeal, and allowed next day built up its walls, cut a doorway characterized his intention as to residence, Carland to perfect it; and on August 26th and laid poles for supporting a dirt roof, which intention, you state, “is the con- the affidavit of his attorney, sworn to and slept and ate on the land two days trolling feature for consideration ;” and July 21st, was filed, to the effect that on and nights. He did nothing more for that "if he settled upon the land, primar- March 31st, when he filed notice of appeal about five months, when, October 15th and ily, with the view of making it his home, in the local office, he forwarded his speci27th, he hauled logs and poles, and on No- and had given continuous evidence of such fications of error to this Department. vember 10th commenced digging a well, intention (which in your opinion he did) Carland having thus made reasonable at which he worked twelve days; he up to the date of trial, he had not forfeited efforts to secure an appeal, the defect in hauled stones for it on the 24th, and his right of entry under the law by his which, if any, resulted from the non-action finished it on the 26th. On December mere failure to execute the intention." of his attorney, or from the non-receipt of 5th he plastered the house with mud; on I do not concur in this view. The law the specifications of error which had been the 10th put in a window, stove and pipe, is not satisfied by intentions. They are not duly transmitted by mail, I disregarded and table, and ate and slept there. On the equivalent of the actual residence and this technical objection, and allowed the the 12th he went to the woods for logs for improvement demanded; but continuous appeal, as within the principle announced an addition to the house, and slept in the compliance with all the requirements of by Secretary Schurz in the case of Ogg house the night of the 14th. On the 18th the law is essential, and failure therein vs. McDonald (Copp, March, 1880), and he hauled lumber for a floor, and on Jan- will not be overlooked except under urgent by Acting Secretary Bell in the case of uary 1, 2 and 3, 1881, hauled manure to circumstances, and for controlling reasons. John Powers (ib., March, 1882). In the the house and banked it. He has alit Flanagan's neglect to establish a resi-'former case it was held that although the