HOMESTEAD ENTRY-EQUITABLE ADJUDICATION

WILLIAM H. MARTIN.

Where the failure to establish residence within six months from date of original entry is caused by circumstances beyond the control of the entryman, and good faith is shown, the entry may be submitted to the Board of Equitable Adjudication. First Assistant Secretary Muldrow to Commissioner Stockslager, October 8, 1888.

William H. Martin, on September 8, 1881, made homestead entry of the NW. of Sec. 2, T. 142, R. 55, Fargo district, Dakota. He began to build a house upon the tract, himself taking up his residence thereon May 8, 1882, having been delayed by sickness in his family and other causes beyond his own control, fully set forth in his final proof. His family arrived about a month later. His house is a one-story frame building, sixteen by twenty-six feet; granary fourteen feet; and other smaller buildings. Has one hundred and forty acres of the tract under cultivation. Final proof was offered October 27, 1886; but is rejected by your office on two grounds: (1) the entryman failed to take up his residence upon the tract within six months after entry. You suggest that, as there is no adverse claim, the case might be submitted to the Board of Equitable Adjudication for action, were it not (2) that you fail to find good faith in the matter of residence subsequently.

Claimant's family remained upon the tract from the first week in June, 1882, until about the 1st of November. Having seven young children, whom he desired to afford the facilities of education, the nearest schoolhouse being at the village of Page, two and one half miles away, and the winters in that high northern latitude being so severe that it was dangerous to the lives of the children to attempt to walk that distance regularly, about the 1st of November each year he has removed his family to the village of Page-such removal, claimant alleges under oath,

Being but temporary, and for the sole and express purpose of permitting his said children to attend school, and for no other purpose whatever; and as for himself, during his said absence he kept up his daily labors at and upon said homestead, returning to said village of Page each evening.

Claimant's final proof witnesses corroborate the above statement, witness Berry adding:

I am in no way interested in said claim, and consider that no man could possibly act in better faith toward the government in this matter than Mr. Martin has.

Martin having established his residence upon the tract in good faith in May, 1882, I do not consider that the temporary absences under the circumstances above set forth, constitute an abandonment of residence, or militate against his good faith. I think the case one which can very properly be submitted to the Board of Equitable Adjudication, and so direct. Your decision is modified accordingly.

TIMBER CULTURE CONTEST-APPLICATION TO ENTER.

JAMES A. BECKETT.

The refusal to entertain a timber culture contest necessarily carries with it the rejection of the application to enter accompanying the contest affidavit. There is no law conferring a preference right of entry upon one who breaks five acres of a tract while it is covered by the uncanceled timber culture entry of another.

First Assistant Secretary Muldrow to Commissioner Stockslager, October 8, 1888.

On January 12, 1885, one A. W. Mitchell initiated contest against the timber-culture entry of William Nicholas, for the SE. of Sec. 28, T. 23 S., R. 35 W., Garden City, Kansas. Trial was had April 8, 1885, when defendant defaulted, and the local officers recommended the cancellation of the entry. The record of the case was transmitted to your office. Pending action by your office upon the case-no appeal having been taken by Nicholas--Mitchell (on October 2, 1886,) filed a motion to dismiss the contest, and simultaneously one James A. Beckett filed application to contest Nicholas' entry on the same grounds. The local officers refused Beckett's application. Your office sustained the action of the local officers, held that Mitchell's motion to dismiss was practically a waiver of his preference right of entry, and canceled the entry of Nicholas, leaving the tract open for entry by the first legal applicant. It was entered under the timber-culture law by one Charles E. Merriam, February 8, 1887.

Notice of such action was given Beckett, who on February 19, 1887, presented an application to make timber culture entry of the tract. This application was refused because of the prior entry of Merriam. From this action Beckett appealed to your office, and from your adverse decision he appeals to the Department-on the grounds (1) that his application was prior to that of Merriam, he having filed an application to enter at the same time he filed his application to contest; (2) that Merriam's application to enter ought not to have been accepted until be (Beckett) had been allowed the usual time for appeal to the Department; (3) that Beckett, having broken five acres of the tract prior to the cancellation of Nicholas' entry, had thereby acquired a preference right thereto.

In answer to which it will be sufficient to say:

(1) The rejection of Beckett's application to contest Nicholas entry necessarily carried with it the rejection of his accompanying application

to enter the tract.

(2) Beckett did not appeal from said rejection (of his application offered October 2, 1886), and it was after the expiration of the time for making such appeal that Merriam's entry was accepted (on February 8, 1887). It was an act of courtesy or grace, and not demanded by law,

that Beckett was informed of Merriam's entry at the last named date, and he was then no longer in a position to appeal from the action of the land department in permitting anyone to make entry of the tract.

There is no law allowing preference right of entry to any person who will break five acres of a tract while it is covered by the yet uncanceled entry of some prior entryman.

Your office decision of June 15, 1887, is affirmed.

The "

SOLDIERS' ADDITIONAL HOMESTEAD-CERTIFICATION.

'pending cases

ELISHA LEE.

excepted from the regulations of February 13, 1883, were those then pending on application for certification.

Secretary Vilas to Commissioner Stockslager, October 9, 1888.

On January 13, 1886, there was filed in your office the application of Elisha Lee for certification of his right to make soldiers' additional homestead entry.

It appears that Lee made original entry of forty acres at Boonville, Missouri, on June 30, 1873; that his proof thereon October 4, 1875, failed to satisfy your office of his compliance with law in the matter of residence, and that your office by letter of January 12, 1876, directed the local officers to inform "Mr. Lee that before he can perfect his entry he will be required to reside upon and cultivate the land for such period as added to the above mentioned term of military service will make a total of five years from date of entry as required by law;" that the local officers subsequently reported that no action had been taken by claimant, and that on March 30, 1852 the entry was canceled.

Prior to said cancellation, and on November 15, 1875, Lee made an additional entry at Visalia, California, of one hundred and twenty acres, which was canceled on October 14, 1885, by reason of the failure of the original entry.

On October 28, 1885, claimant filed in your office an affidavit alleg. ing that he had never received notice of the order cancelling his original entry, that in fact he had resided on the claim for four years after making proof, and asked the re-instatement of the entry. Corroborat ing affidavits were also filed to the effect that claimant had resided on the tract from July 1, 1873 to about May 1, 1881. Thereupon by letter of your office dated December 19, 1885, said original entry was reinstated, and has since been patented.

Meanwhile the tract in California formerly covered by his additional entry was otherwise appropriated.

Lee therefore applied for certification on January 13, 1886, as above stated.

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His claim to certification is based on the ground that his case was a pending one on February 13, 1883, the date of the circular discontinuing the practice of certification, and was excepted from the general provision of said circular by the terms thereof.

From May 17, 1877, to February 13, 1883, it was the practice of your office to examine the papers accompanying each application for the right of soldiers' additional entry, and if the applicant were found entitled to the right, to issue a certificate to that effect. On the latter date said circular directed the discontinuance of that practice and provided certain rules to be followed in such cases. These rules required that such applicants should present themselves in person at the local office of the district in which the land desired was situated, sign certain papers, and make certain affidavits. The last clause of the circular provided, that:

These rules will not be deemed to apply to cases where the additional right has heretofore been certified by this office, nor to cases now pending, or which may be filed in this office prior to March 16, 1883. (1 L. D., 654).

It is true the additional entry in California was subsisting at the date of the circular. That fact it is claimed made this a "pending case" in the purview of said circular. The circular of 1883, was intended wholly to correct the evils attending the practice of certification, and its scope is limited to that intention. It directed that the practice of issuing these certificates should cease, but, in order to save harmless those who had secured their certificates under the former practice or taken steps so to secure them, it provided that pending cases would not be subject to the new rules. The "pending cases" excepted by the circular, therefore, were those pending on application for certification. This case does not come within that exception for the application for certification was not made until 1886.

The refusal of your office to issue said certificate is, for this reason, affirmed. Should Lee apply to make entry in person his case will be adjudicated anew.

RAILROAD GRANT SETTLEMENT RIGHT.

NORTHERN PAC. R. R. Co. v. WILEY.

Land covered by a pre-emption settlement and filing at date of definite location is excepted from the operation thereof; and the validity of the pre-emption claim cannot be questioned by the company.

Secretary Vilas to Commissioner Stockslager, October 9, 1888.

I have considered the case of the Northern Pacific R. R. Co. v. Josiah Wiley, on appeal by the former from your office decision of November 1, 1886, holding that the SW. } of SE. of Sec. 1, T. 12 N., R. 17 E.,

North Yakima, Washington Territory land district, was excepted from the grant to said company of July 2, 1864 (13 Stat., 365).

This tract is within the limits of the withdrawal made on the filing, June 11, 1879, of the map of general route of the branch line of said company's road. It is also within the granted limits of said grant as determined by the map of definite location of said road west from Yakima city filed May 24, 1884.

On August 16, 1870, Josiah Wiley filed pre-emption declaratory statement for this tract, together with other land, alleging settlement thereon November 1, 1869.

On February 8, 1873, he made homestead entry for the land included in his pre-emption filing, which entry was canceled November 12, 1879, upon relinquishment.

On February 25, 1884, said Wiley filed a pre-emption declaratory statement for the tract in controversy, alleging settlement on the same day, and on October 8, 1885, made proof and payment therefor upon which the local officers issued final certificate.

Upon the examination of the papers in your office it was decided that Wiley's claim served to except the land from the operation of the grant to the railroad company. From that decision the company appealed. In the appeal it is said,

The claim of Wiley existing under his homestead entry June 11, 1879, under the rulings of the Department excepted the land from the withdrawal on general route, but this entry was canceled November 12, 1879, and the tract then became public land and was subject to the company's right upon the definite location of the line May 24, 1884, unless some intermediate valid adverse right had attached to defeat that right.

It is further claimed that the settlement and filing made by Wiley February 25, 1884, could not operate to defeat the company's claim he having relinquished all right under his homestead entry and having exhausted his pre-emption right by a former filing. Wiley's statement that he first settled on this land November 1, 1869, is not contradicted. Admitting the truth of that statement it is seen that from the date of that settlement up to the date of the cancellation of his homestead entry November 12, 1879, Wiley was asserting such a claim to said land as served beyond question to except it from the operation of any withdrawal taking effect within that period. At the date the company claims its rights attached under the map of definite location, Wiley was on the land and had of record a claim thereto the validity of which the company can not question. W. II. Malone v. Union Pac. Ry. Co. (7 L. D., 13) Millican v. Northern Pac. R. R. Co (id., 85)

Your said office decision is affirmed,