DECISIONS

RELATING TO

THE PUBLIC LANDS.

HOMESTEAD ENTRY-SECTION 2294, R. S.

BRASSFIELD v. ESHOM.

A homestead entry wherein the preliminary affidavit was executed before a clerk of court, without the pre-requisite residence on the land, is voidable only; and the intervention of a contest will not defeat the right of the entryman to cure such defect where he had, prior to said contest, established his residence on the land in good faith.

Secretary Vilas to Commissioner Stockslager, January 2, 1889.

This is a motion filed by Samuel W. Brassfield, the contestant in the above case, asking for a review of departmental decision of May 26, 1888 (6 L. D., 722), alleging error of law in said decision in holding as follows, to wit, that the homestead entry admittedly illegal and voidable for want of a proper affidavit, is cured and perfected by the estab lishment of residence upon the entered land, no valid affidavit having been filed as required by express statutory enactment. In this case

the homestead affidavit of claimant was taken before the clerk of the district court for Washington county, under section 2294, Rev. Stat., it appearing that at the date of said affidavit neither claimant nor any member of his family was residing upon the land in question. The Department held that said defect was cured by claimant, by establishing residence on the land prior to the contest. The sole question presented in this case, therefore, is whether such defect can be cured by estab lishing a residence prior to contest, or whether an amended affidavit may be filed in the face of a contest, the contestant not alleging or showing settlement or improvement on said tract.

In the case of Roe v. Schang (5 L. D., 394), it was held that such defect might be cured by a supplemental affidavit. This case arose upon a contest initiated by Roe against the homestead entry of Schang, and although the insufficiency of said affidavit was not brought in issue by said contest or alleged in the appeal from the decision of the local office, or from the decision of the General Land Office, the Department considering the question on a motion for review, held that said entry was only voidable and might be perfected by a supplemental affidavit made

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before the proper officer. While it was stated in said decision that "the insufficiency of said affidavit was not put in issue in said contest, nor was it alleged in the appeals from the local land office or your office" the ruling of the Department was not placed upon that ground but upon the ground that the entryman bad acted in good faith and that there was no valid objection to allowing the entryman to make the supplemental affidavit before the proper officers curing the defect.

In the case of Way v. Matz (6 L. D., 257) the Department held that "An entry based on a preliminary affidavit executed before the clerk of a court not authorized to act in such matters is voidable only and the defect may be cured by a supplemental affidavit."

In this case each party bad made homestead entry of the tract. Way's entry being the first allowed, but Matz' entry was based on a prior settlement. It was contended that Matz' entry was unauthorized by law not having been made before the clerk of the court for the county in which the applicant is an actual resident as required by Sec. 2294, Rev. Stat., but the Department held that this was merely an irregularity which rendered the entry voidable, but that the entryman would be allowed to file supplemental affidavit of qualification before the proper officer.

In the case of Schrotberger v. Arnold, (6 L. D., 425) the Department held that an affidavit made before the clerk of a court without prior residence is only voidable and may be cured in the absence of an adverse claim, but it has not been considered that a contest where the contestant does not allege a settlement or improvement on the tract, or of some other adverse right than the preference right of entry that he may acquire by a cancellation of said claim is such an adverse right as would prevent the claimant from curing the defect, by filing the sup plemental affidavit, as ruled in the case of Roe v. Schang, the good faith of the entryman being manifest, and the entryman having made settlement and residence on the land prior to the initiation of the contest. You will notify the claimant that he will be required to file a supplemental affidavit taken before the proper officer, said direction having been omitted in the decision of May 26, 1888.

The motion is denied.

PRACTICE-SUPERVISORY AUTHORITY OF THE DEPARTMENT.

A. C. LOGAN ET AL.

The government has always the right to appear before the local office and submit testimony or examine the witnesses offered by the parties. It has also the right to direct the postponement or continuance of a case in order to investigate the

same.

Secretary Vilas to Commissioner Stockslager, January 2, 1889.

The mineral claimants in the above case have filed through their counsel an application for certiorari alleging as follows:

That the parties to the above contest, by written stipulation, agreed to a hearing to determine the character of the land involved in the ap

plications. That the Assistant Commissioner, acting upon advice from the Governor of Montana of an apparent attempt to obtain title to agricultural lands under said mineral applications, ordered said hearing to be postponed until an investigation could be had by the General Land Office.

From this action the applicants appealed, which your office refused to transmit, holding that said action was taken by virtue of the discretionary power vested in the Commissioner from which action no right of appeal will lie.

It is not alleged that the Commissioner has denied to said applicants the right to a hearing to determine the character of said land, but has simply directed a postponement of or continuance of said hearing to enable the government to make an investigation for the purpose of determining the character of said land if it should see proper to do so.

No matter what rights the parties to the contest may have, the gov ernment has always the right to appear before the local office and submit testimony or to examine the witnesses offered by the contestants. It has also the right to direct the postponement or continuance of said case before the local office to enable it to investigate the case and I see no abuse of the discretion of the Commissioner in postponing the case now under consideration for that purpose. The application is denied.

FINAL PROOF-CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., January 2, 1889.

Rule VIII and Rule IX of the circular of February 19, 1887 (5 L. D. 426), approved February 21, 1887, are hereby modified to read as follows, viz:

VIII. When proof is made before the register or receiver and the final certificate does not bear the date of the proof, require of the regis ter and receiver an explanation thereof, and if the delay was caused by a failure to tender the money or other consideration at the time of making the proof, require additional evidence to show that the claimant had not, at the date of the certificate, transferred the land, and that he still continued to reside thereon, which evidence may consist of the claimant's affidavit corroborated by the affidavits of witnesses, taken before some officer authorized to administer oaths.

IX. When proof is made before any other officer than the register or receiver, allow a reasonable time for a prompt transmission of the papers to the district land office, and if any longer interval is shown between date of proof and date of certificate (if proof is otherwise sufficient), require of the register and receiver an explanation thereof and

if such delay was caused by the fault of the claimant require the same additional evidence as prescribed under Rule VIII. S. M. STOCKSLAGER,

Approved:

WM. F. VILAS,

Commissioner.

Secretary.

SCHOOL

INDEMNITY-FRACTIONAL TOWNSHIP-ACT OF MARCH 1,

1877.

UNITED STATES v. STATE OF CALIFORNIA.

School indemnity selections, certified prior to the passage of the act of March 1, 1877, on the basis of losses alleged in townships made fractional, by reason of the segregation of swamp lands, will not now be disturbed.

Secretary Vilas to Commissioner Stockslager, January 3, 1889.

This case comes before the Department upon the appeal of the State of California from the decision of your office of January 4, 1888, holding that certain indemnity selections therein set forth are invalid and are subject to cancellation, under the provisions of the second section of the act of March 1, 1877 (19 Stat., 267).

Said selections were approved and certified to the State prior to the act of Congress of March 1, 1877, as lands inuring to the State under the act of February 26, 1859 (11 Stat., 385), providing for indemnity "to compensate deficiencies for school purposes, where sections sixteen and thirty-six are fractional in quantity, or where one or both are wanting by reason of the township being fractional, or from any natural cause whatever."

Said townships were considered by the Department to be fractional by reason of swamp land found therein, which included in some cases the sixteenth, and in other cases both the sixteenth and thirty-sixth sections, either in whole or in part-the theory upon which the Department acted being that swamp land is a "natural cause," contemplated by the act of February 26, 1859.

You held that said selections are invalid, for the reason that they "are based upon alleged deficiencies in fractional townships, caused by said townships including sections sixteen and thirty-six (one or both, either wholly or in part) being swamp lands, which are shown by the records to have been surveyed and thereafter selected by and approved to the State as swamp lands, prior to the date of the above selections for school purposes."

The practical effect of your decision is to hold that the State is not entitled to indemnity for sections sixteen and thirty-six, under the seventh section of the act of March 3, 1853, or the sixth section of the act

of July 23, 1866, where such sections are shown to be swamp land, and that it is not entitled to said selections to compensate deficiencies under the act of February 26, 1859, because said townships are not made fractional by reason of the swamp land found therein.

Holding said selections to be invalid and not confirmed by the act of March 1, 1877, you therefore conclude that said lands should be disposed of under the second section of said act, which provides that if there be an innocent purchaser from the State for a valuable consideration, he shall be allowed to prove such facts before the proper officer and to purchase the same at one dollar and twenty-five cents per acre, not to exceed three hundred and twenty acres to any one person, and that if such person neglect or refuses after knowledge of such facts to furnish proof and make payment for said land, it shall be subject to the general land laws of the United States.

It is contended by the State that the only question that can arise in this case is, whether these townships are fractional within the meaning of the act of 1859. They insist, (1) That this question was necessarily determined by the department in certifying these lands to the State, because the selections were made upon the theory that they were fractional townships within the meaning of the law, and their approval necessarily involved a ruling that the theory was correct; that the finding was made by officers entrusted by law with the duty of passing upon that question, and as the rights of the State and her grantees have be come vested under it, it is now too late to disturb or question it. (2) That if it was an open question, the ruling is correct, because said townships were made fractional by the operation of peculiar statutes, applicable to California alone, in that the acts providing for the survey of public lands in said State, and the instructions of the department made for the enforcement of said acts, authorize the surveyors in segregating large bodies of notoriously swamp and overflowed lands to close the lines of the public surveys upon them as if they were lakes or ponds. Thus, fractional townships necessarily occur in California, where the government surveys abut upon large tracts of swamp and overflowed land, in the same way as if they abutted upon a lake or ocean. (3) That if, for any reason, they are in error in the contention that said lands were properly certified under the act of 1859, the State is entitled to indemnity for the sixteenth and thirty-sixth sections of swamp land, under the acts of March 3, 1853, and July 23, 1866. (4) That the act of March 1, 1877, has no application to this case, but, if it should be held that said lands are subject to disposal under the second section of said act, they contend that there is no power in the department to set aside said certification, because by said certification the legal title has passed out of the United States, and that neither the legislative nor executive department has jurisdiction over them, but resort must be had to a court of equity in the name of the United States to cancel the legal title.