he was duly notified of the decision of your office cancelling said entries, and of any other equity in his favor requiring submission to the Board. The decision of your office is modified accordingly.

The preliminary affidavit required of an entryman under the desert land act, must be based upon the applicant's knowledge of the land derived from a personal inspection thereof.

First Assistant Secretary Muldrow to Commissioner Stockslager, January 21, 1889.

I have considered the case arising upon the appeal of Violette Hall from your office decision of October 4, 1887, rejecting her proffered application to enter under the desert land law a certain tract in the Cheyenne land district, Wyoming.

Applicant in the affidavit accompanying her application, says:

I became acquainted with said land through the testimony and representations of many credible and responsible persons who are well acquainted with said land.

The circular of your office, dated June 27, 1887, approved by the Department, says (see 5th paragraph, page 710, 5 L. D.) :

The required affidavit can not be made by an agent, nor upon information and belief; and you will hereafter reject all applications in which it does not appear that the entryman made the averments contained in the sworn declaration upon his own knowledge derived from a personal examination of the land.

I therefore affirm your decision rejecting said application.

HOMESTEAD-SECOND ENTRY.

BENJAMIN P. KNANS.

An entry under the homestead law cannot be lawfully made by one who is at the same time maintaining a pre-emption claim for another tract.

The right to make second entry will not be accorded, where the first was for land duly subject thereto, and failed through the fault of the entryman.

Secretary Vilas to Commissioner Stockslager, January 21, 1889.

This cause comes before me on appeal of Benjamin P. Knans, from your office decision of March 2, 1886, cancelling his homestead entry for the NE., Sec. 10, T. 2 S., R. 34 W., Garden City, Kansas land district.

On February 22, 1884, claimant filed his pre-emption declaratory statement for SW. 4, Sec. 2, of the same township and range, and made his final proof thereon and received his certificate therefor, July 27, 1885.

On November 13, 1884, and while residing on his said pre-emption claim and before offering his final proof, he made the homestead entry above stated.

On October 29, 1885 your office received through the local officers an application made by Knans himself, asking that his said homestead entry be canceled for illegality and that he be permitted to make a re-entry of the same tract.

Prior to making such application for cancellation he had proved up on his pre-emption claim, received his final certificate and had established a residence on the tract embraced in his homestead entry.

Claimant in an affidavit and also in a private letter filed in the case, claims, that he made his homestead entry in ignorance of the law and on the advice of land attorneys and others, who professed to know, by whom he was told that he had a right to make a homestead entry while residing upon his pre-emption claim, provided he proved up on his preemption and commenced his residence on his homestead within six months after entry thereof.

In your said letter of March 2, 1886, you comply with his request in so far as the cancellation of his homestead entry is concerned, but refuse to allow him to make a second entry of the same tract under the homestead law, and you say, "as he has made pre-emption entry, the purpose of the law in according the same to him, being to afford him a homestead, it is not seen that he has any occasion for another, and the law allows but one homestead privilege."

If by this language it is intended to say that the law is that the exercise of either the homestead or pre-emption right exhausts the other, or both, I cannot concur in that view as the decisions of the Depart ment have never gone to that extent, and have indeed held to the contrary, but, however, that may be it is well settled that a claimant cannot make homestead entry while his pre-emption claim on another tract is pending, without abandoning his pre-emption claim. Rufus McConliss (2 L. D., 622) J. J. Caward (3 L. D., 505) Austin v. Norin (4 L. D., 461) Krichbaum v. Perry (5 L. D., 403) Harlan Cole (6 L. D., 290).

It is undoubtedly true that the object of the homestead law was to furnish the opportunity of obtaining homes to those who might be unable to avail themselves of the privilege of the pre-emption law, and it was not the primary object of such law to give one hundred and sixty · acres more to the owners of homestead claims.

Conceding however that a pre-emption claimant after he has made final proof, may still have a homestead right which he is at liberty to then exercise upon any unappropriated public land, it does not follow, nor can I believe it to be within the letter or spirit of the law, that while holding a pre-emption claim and before making final proof therefor, he can make a homestead entry for a piece of adjoining land and thereby prevent the same from being homesteaded or pre-empted by persons duly qualified to make such entries, and thus fraudulently hold the 16184-VOL 8——7

same for his own use and benefit until after making final proof on his pre-emption claim, and then by having such entry canceled as illegal immediately make a new entry of the same tract, and thus reap an advantage from his own wrongful act.

Although the homestead entry of Knans was invalid it was not necessarily void, as the land filed upon was open to entry and settlement, and by abandoning his pre-emption tract and giving up all claim thereto, he might have perfected his homestead.

There was nothing so far as the government was concerned or in the status of the land at the time of his entry to prevent him from perfecting his title.

In Allen v. Baird (6 L. D., 98) it was held that, "a pre-emptor may file but one declaratory statement, for land free to settlement and entry. This ruling has been uniformly followed and the only exception is where the pre-emptor is unable to perfect his entry on account of some prior claim and there is no fault on his part".

I know of no reason why the same rule which obtains in pre-emptions should not be applied in regard to the exercise of the homestead right. This land was free to settlement and entry when Knans made his homestead entry, and there is no pretense of there being any prior claim.

His failure to complete by residence was not the fault of the government but his own laches, this alone prevented his claim from ripening into title. His homestead right therefore, having been once exercised upon land open to settlement and entry is now exhausted and he cannot be permitted to exercise it again.

While not concuring fully in the reasons given for said decision I have reached the same conclusion upon the grounds above stated. Your said decision is therefore affirmed.

HOMESTEAD-SECOND ENTRY.

JAMES A. HARRISON.

The right to make second entry accorded where the first, through no fault of the entryman, was made for a tract covered by a prior bona fide pre-emption claim.

Secretary Vilas to Commissioner Stockslager, January 21, 1889.

I have considered the appeal of James A. Harrison from the decision. of your office of September 3, 1887.

March 25, 1887, Harrison made homestead entry, No. 13,954, on Lots 3 and 4, and the E. of the SW. of Sec. 6, T. 31 S., R. 38 W., Garden City district, Kansas.

It appears from the application of said Harrison now under consid eration, that before making said entry, he employed Putnam and Wid'mer, attorneys, to prepare his entry papers, and to examine the records

of the local office, to see if said tract was vacant and subject to entry, and said tract appeared upon said records as vacant public land subject to entry, and thereupon he made said entry; but, subsequently, when he went upon said land to establish residence thereon,, he found one William E. Kyes, residing there, said Kyes having settled on said land May 20, 1886, and filed pre-emption declaratory statement therefor May 26, 1886; and that the dwelling and other improvements of Kyes on the land were so near the northern boundary thereof, as naturally to cause Harrison (in view of the fact that the filing of Kyes did not appear of record), to believe that said dwelling and other improvements were upon the tract north of that covered by Harrison's entry. Harrison's statements are under oath and corroborated by said Kyes, the preemptor, and by the clerk in the office of the register at Garden City, and there is no doubt that he acted in good faith, and, in my opinion, he exercised due care and prudence in making said entry.

On this state of facts, Harrison prays "that said homestead entry be amended to embrace the NW. 4 of the SE. 1, the N. of the SW. ‡, and the SW. of the NW. of Sec. 24, T. 30 S. R. 36 W.," in said land dis trict. His application is accompanied by his relinquishment of said entry and also by an application in due form to enter under the homestead law the tract last named. The local officers recommended the granting of the application, but your office denied it, and Harrison appeals from this ruling of your office.

The application of Harrison is properly speaking and in legal effect, an application for leave to make second homestead entry, and should be treated as such. The conflict between the prior filing of Kyes and the entry of Harrison was the result of the negligence of the local officer in not placing the former of record, and neither Kyes nor Harrison should be prejudiced thereby. Kyes, at the date of Harrison's entry and relinquishment thereof and present application, was residing on the land, and had improved the same and filed therefor and was in all things conforming to the pre-emption law, and the time for his making payment and final proof has not yet expired. Being prior in point of time, he was also prior in the legal right to perfect his filing within the lifetime thereof by compliance with the requirements of the pre-emption law. (Goist v. Bottum, 5 L. D., 643).

This department, it is true, holds that a pre-emption filing does not segregate the land covered thereby, and, therefore, the land in this case was open to Harrison's entry, subject to the right of Kyes to perfect his filing by compliance with the pre-emption law. This, however, should not, under the circumstances of this case, be allowed to defeat the present application of Harrison for leave to make second homestead entry. It is stated in Harrison's application and is quite evident from the nature of the case, that he would not have entered the land if the local officer had discharged his duty and placed Kyes' filing of record and thus informed Harrison that his entry would be subject thereto.

Harrison seems to have acted promptly. He made his application (now under consideration) May 9, 1887, about a month and a half after his entry and soon after he had discovered Kyes residing on the land in full compliance with the pre-emption law, and from said date to the expiration of the life time of Kyes filing was nearly two years. To require Harrison to comply with the homestead law for such a period of time as to the tract covered by Kyes' prior filing, on the bare possibility of his finally securing the land by reason of Kyes' failure to comply with the law, would be unjust and unreasonable and would expose him to the risk of serious loss and injury on account of the negligence of the local officer.

I am, therefore, of the opinion that Harrison's application, considered according to its legal effect, as an application for leave to make second homestead entry for the tract named in the absence of an intervening adverse claim thereto, should, under all the facts and circumstances of the case, be allowed, and you are so instructed. The decision of your office denying said application is accordingly reversed.

HOMESTEAD-SECOND ENTRY.

THURLOW WEED.

The right to make a second entry recognized where the first was made in good faith but subsequently abandoned by the homesteader on account of conflict with the bona fide pre-emption claim of another.

Secretary Vilas to Commissioner Stockslager, January 21, 1889.

I have considered the appeal of Thurlow Weed from your office decision of October 26, 1887, refusing his application to make homestead entry for the NE. 1, of Sec. 28, T. 132 N., R. 64 W., Fargo, Dakota, land district, upon the ground that he had exhausted his right under the homestead law by a former entry.

Weed made homestead entry for the SW. of Sec. 32 T. 132, N., R. 64 W., Fargo district, April 7, 1884. This entry was made upon an affidavit executed April 3, 1884, before the clerk of a court, in which Weed alleges that he was then residing on said land and that his settlement was commenced April 2, 1884.

Sarah Kellogg filed pre-emption declaratory statement for said last described tract April 2, alleging settlement March 29, 1884. Kellogg made pre-emption cash entry for said tract October 16, 1884,-Weed failing to appear and protest against the allowance thereof.

By letter of your office dated April 23, 1857, Weed's homestead entry was held for cancellation for conflict with Kellogg's pre-emption entry. On September 29, 1887, Weed filed in the local office a relinquishment of his homestead entry, a petition for the restoration of his home. stead right and an application to make homestead entry for the NE. 4