First Assistant Secretary Muldrow to Commissioner Stockslager, August 6, 1888.

I have considered the case of Luther E. Grove v. William H. Crooks, as presented by the appeal of the latter from the decision of your office, dated March 23, 1886, rejecting his application to purchase, under the act of June 3, 1878 (20 Stat., 89), the S. of the SE. 1, the NW. 4 of the SE. and the SE. of the SW. 4 of Sec. 33, T. 5 S., R. 21 E., M. D. M., } Stockton land district, in the State of California.

The record shows that said Crooks filed his timber land application, No. 43, for said land, on November 11, 1882; that one Sidney F. Hadsell filed his pre-emption declaratory statement, No. 11,063, for said tracts on July 11, 1881, alleging settlement thereon July 7th same year; that one Alvin M. Acton filed his pre-emption declaratory statement, No. 12669, for said land on October 6, 1884, alleging settlement thereon July 10th, same year; and that said Grove made homestead entry, No. 4197, of the land in question on July 19, 1884, alleging settlement July 10th, same year.

A contest was had between said Crooks and Hadsell, which was finally determined by departmental decision, dated December 17, 1884 (3 L. D., 258), wherein it was held that Hadsell had the prior claim, and that Crooks application should be subject thereto; that if Hadsell failed to make the required proof, "Crooks may proceed to show the character of the land, and prosecute his case under the act of June, 1878."

It appears that Grove was allowed to make homestead entry of the land, after the publication of notice by Crooks, and that Acton was allowed to file for said land after the entry of the same by Grove. This action of the local officers was irregular. Grove should not have been permitted to make entry of said land while the case of Crooks v. Hadsell was pending in this Department. See Rule of practice No. 53. Acton should not have been allowed to file for said land so long as the same was covered by Grove's said entry. James et al. v. Nolan (5 L. D., 526). It further appears that at the request of said Crooks, all parties in interest were duly notified to attend a hearing to be held before the local and officers, on May 22, 1885, and show cause why the timber applicant should not be allowed to enter said land. The hearing was duly had, and from the evidence submitted by both parties, the local land officers found that Hadsell sold his improvements to Grove on July 19, 1884, for the sum of ten dollars; that Grove repaired the house and fence, and planted a few vegetables; that his own statement shows that Grove carried his blankets to said claim and slept thereon ten or twelve nights in July or August, 1884, while he was repairing the house; that in the latter part of August, 1884, Grove went to San Francisco and obtained employment until December, when he obtained leave of absence and slept on the land, one night, and he had not been again upon the land up to the date of hearing; that he has had no furniture in the house, except a stove put there by his father in October or November,

1884; that Grove voted in San Francisco in November, 1884, having registered as a voter in September prior thereto; that six witnesses testified concerning the character of the land, two of whom, namely Grove and his father, may be considered parties in interest, and due allowance should be made in weighing their testimony; that the testimony of F. H. Gould, county surveyor, shows that a portion of said land is rocky, all of it hilly, except one or two places along the creek; that the land is covered with heavy timber, and is chiefly valuable for the same; that there are not more than five acres on each forty that can be cultivated, and not more than fifteen acres on the whole tract that can be profitably cultivated; that two thirds of said land might produce a crop if cleared, but it would cost more to clear the land than it is worth; that the witness Flemmons thinks that not more than fifteen acres of the land could be profitably cultivated; that the witness La Tonche changed his opinion as to the character of the land, from that given by him at a former hearing; that his cross-examination, as well as that of O'Neal, shows that, although they have attempted to farm land similar in character and near to the tracts in question, yet they have not succeeded in deriving any profit therefrom; that the contestant and his father believe that three-fourths or two-thirds of the land in question could be cultivated, if cleared.

The local officers further state in their opinion that most of the land entered in the immediate vicinity of the land in controversy has been entered as timber land, and they hold "that the land in contest is unfit for ordinary cultivation, valuable, chiefly, for its timber," and that the filings of Hadsell and Acton and the entry of Grove should be canceled. Your office, on appeal, held that the timber land applicant had failed to show "that the land in question, at the date of the application, was unfit for cultivation and without improvements other than those excepted by the act."

From an examination of the testimony, I am of the opinion that the land in question is not subject to entry as timber land. The witness Gould, upon whose evidence the local officers lay special stress, in answer to the question, "How much of this land is subject to cultivation, for a crop, without first removing the timber?" testified (Ev. p. 19), "There are little spots here and there in several places, but really I don't believe you will find more than five acres of land that is not covered with rock and timber;" that there are not, in his judgment, five acres on each of the forty acre tracts that "could be cultivated at present." In answer to the question, "In your judgment, except the two small spots of about five acres that you speak of, would this land produce a crop if cleared and cultivated," Gould answered (Ev. p. 20), "I am inclined to think it would, judging from the character of the soil." Being asked "about what portion", the witness replied, "two-thirds of it could be cultivated; would raise a crop, that is, the soil is such." Gould was a witness for the timber applicant, and his evidence as to the character of the soil is

corroborated by the witness is for the entryman. Since the applicant has failed to show that the land would be unfit for ordinary cultivation if it was cleared of timber, his application must be rejected. Spithill v. Gowen (2 L. D., 231); Rowland v. Clemens (ibid., 633).

While the evidence shows that the land is not subject to entry under the act of June 3, 1878, it is also proven that the homestead entryman has not complied with the law in good faith. This is shown by the very short time spent on the land, the meager improvements made, and the fact that while claiming to reside on said land, he voted in the city of San Francisco, many miles away, and in a different precinct from that in which said land is situate. The homestead entry should be canceled. Showers v. Friend (3 L. D., 210); Merritt v. Short (ibid., 435).

Acton having failed to appear at said hearing, or appeal from the decision of the local office, his said filing should be canceled, and the land held subject to the claim of the first legal applicant. The decision of your office is accordingly modified.

ADDITIONAL TOWNSITE ENTRY.

MORGAN CITY.

An additional townsite entry cannot be allowed to a town that holds, under its former entry, more land than its present population would entitle it to enter.

Acting Secretary Muldrow to Commissioner Stockslager, August 6, 1888.

I have before me the appeal of Samuel Francis, mayor of Morgan City, from your decision of January 18, 1887, holding for cancellation said city's (additional) townsite cash entry for the SE., Sec. 36, T. 4 N., R. 2 E., Salt Lake City, Utah.

Section 4 of the act of March 3, 1877 (19 Stat., 392), under which said addititional entry was made, provides, that (any) such additional entry shall not together with all prior entries be in excess of the area to which the town may be entitled at the date of the additional entry by virtue of its population as prescribed in section 2389 of the Revised Statutes.

It appears by the record that "at the date of the additional entry" Morgan City had only six hundred inhabitants; a number which, under section 2389 of the Revised Statutes would entitle it to no more than six hundred and forty acres in all. The town, however, already holds, under its former entry, eight hundred and eighty acres, or two hundred and forty acres more than its present population would entitle it to get. It is clear, therefore, that the allowance of the additional entry would cause the town's holding to be still more largely "in excess of the area to which the town (was) entitled at the date of (such) additional entry by virtue of its population."

Your said decision, cancelling such excessive entry, is accordingly affirmed."

HOMESTEAD ENTRY-RESIDENCE.

PATRICK MANNING.

Residence on land and presence thereon are not synonymous or convertible phrases. Actual presence on the land is necessary in the first instance in order to acquire residence, as the entryman must go on the land for that purpose, but continuous presence thereafter is not essential to the continuity of such residence.

First Assistant Secretary Muldrow to Commissioner Stockslager, August 6, 1888.

I have considered the appeal of Patrick Manning from the decision of your office of December 7, 1886, rejecting his final proof and suspending his homestead entry No. 999, for the N. of SE., W. NE. 4, Sec. 30, T. 23 N., R. 3S E., Spokane Falls district, Washington Territory.

The claimant made said homestead entry, March 27, 1880, and final proof thereon August 15, 1885.

The proof shows that the claimant went upon the land in August, 1880, and built a house, and "during the years 1880–1–2, he was on the land about two or three months each year, never being absent more than three months at a time and then remaining on the land two or three weeks," and since May, 1883, about two years and three months before making proof, he lived upon the land all the time. He was a single man with no means of living or improving his claim except his daily labor, and his absences during the years 1880-1-2, were necessary to enable him to make a living and improve the land. His improvements consisted of lumber dwelling house, twelve and one half by sixteen feet, with one door and one window; a stable, cellar, corral, well, twentyfive acres broken, and two hundred and forty rods of fence—of the total value of not less than $500. He cultivated one acre the first year, eight acres the second, ten acres the third year, and at date of proof had twenty acres under cultivation. He has had no other home since going upon the land in August, 1880.

The local officers accepted the proof and issued final certificate August 20, 1885. Your office held the proof insufficient, mainly on the ground that residence was not established until May, 1883, the date at which his continuous and uninterrupted presence upon the land commenced. In this I do not concur. "Residence is established from the time the settler goes upon the land with the bona fide intention of making his home there to the exclusion of one elsewhere." Grimshaw v. Taylor, 4 L. D., 330.

The extent and character of the claimant's improvements, the increase each year after the first in his acreage under cultivation, his continuous presence upon the land the two years and three months preceding his proof, and the fact that he had no other home, all combine to show clearly that when he went upon the land in August, 1880, and built his

dwelling his intention was "to make his home there to the exclusion of one elsewhere," and, hence, that he then established residence upon the land. He was actually upon the land, it is true, but a comparatively short period of time during the first three years, but his absences were with the intent of returning and necessary to enable him to live and to improve the land; hence, they were not evidence of an intent to abandon, and the residence which he had established was not lost or forfeited by such absences.

It is stated as one ground of the decision of your office that the claimant's "residence" was not "continuous" doubtless meaning thereby, that his actual presence upon the land was not continuous. Residence on land and presence thereon are not synonymous or convertible phrases. Actual presence on the land is necessary in the first instance in order to acquire residence as the entrymen must go on the land for that purpose; but continuous presence there after is not essential to the continuity of such residence once acquired. Residence having been es tablished, subsequent absence animo revertendi and for a purpose which the law recognizes as a sufficient excuse for such absence, does not in dicate an intent to abandon, and without such intent, the legal continuity of the residence is not broken, as, in such cases, the act and intent must concur.

If further evidence of the good faith of the claimant in this case were required, it is furnished in the affidavit which he files with his appeal to this Department, dated March 7, 1887, and corroborated by two witnesses, from which it appears that since making his proof he has lived upon the land uninterruptedly and put a lditional improvements thereon of the value of $300.

The decision of your office is reversed and the entry will be passed to patent.

PRACTICE-SUCCESSFUL CONTESTANT-ACT OF JUNE 15, 1880.

SCHABER v. HOYT.

Where the successful contestant is apparently disqualified to enter the land, a cash entry thereof, under the act of June 15, 1880, made pending contest, will not be canceled, but suspended, and due opportunity given the contestant to assert his claim to a preferred right of entry.

First Assistant Secretary Muldrow to Commissioner Stockslager, August 6, 1888.

I have before me the appeal of James Hoyt from your decisions of July 3, and July 31, 1886, holding for cancellation his homestead entry No. 1459, and cash entry No. 1704, for the SW. 1, Sec. 19, T. 19 S., R. 21 W., Wa Keeney district, Kansas.

Said homestead entry No. 1459 was made May 9, 1878.

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