RAILROAD GRANT-CONFLICTING SETTLEMENT CLAIM.

CENTRAL PACIFIC R. R. Co. v. FIELD.

The claim of a qualified pre-emptor, based on settlement occupancy and possession, existing when the right of the road attached, is sufficient to except the land covered thereby from the operation of the grant.

Under the original grant to the Central Pacific, and the amendatory act of 1864, the equitable claim of a settler is recognized and protected.

Acting Secretary Muldrow to Commissioner Stockslager, November 2, 1888.

I have considered the case of the Central Pacific Railroad Company, v. William J. Field, involving the SW. one-fourth of Sec. 33, T. 1 S. R. 2 W., M. D. M., San Francisco district, California, on appeal by said railroad company from the decision of your office of April 2, 1887. Said land is within the twenty-mile limits of the grant to said railroad company of July 1, 1862 (12 Stat., 489) as enlarged by the act of July 2, 1864 (13 Stat., 356). The line of said company's road was defi nitely located opposite the tract in question, January 21, 1870. The township plat of survey was filed in the local office July 30, 1878, and, on October 7, 1878, the claimant, William J. Field, filed pre-emption declaratory statement, No. 14,588, for said land, alleging settleme..t thercon September 27, 1861.

A hearing was had December 24, 1883, and from the testimony adduced, it appears that Field and one Miller purchased in 1884, from prior occupants, their possessory interest in a tract of more than five hundred acres, embracing the quarter section of land in question, and took possession of said tract under said purchase; that there was a house upon said quarter-section and Field cultivated said quarter-section by hired men who lived in the house thereon from 1864 to 1868, during which time Field resided off said land on the San Leandro road, engaged in hotel-keeping; that it was uncertain at that time, whether said land was public land of the United States or embraced within the limits of a private land claim, and it was understood between Field and Miller during their joint ownership of the possessory interest in the tract, that in the event the quarter-section in dispute was found to be public land, Field was to have the right to secure it under the preemption law; that in 1868, Field and Miller sold their possessory interest in the entire tract to Dennis Callaghan and William Watson, with the understanding that if said quarter-section should finally be ascertained not to be covered by a private land claim, then Field should have the right to resume possession of said quarter-section; and that pursuant to this understanding (in September, 1878) about two months. after the survey, he notified Callaghan to move his improvements from said quarter section and moved thereon himself with his family, where he has ever since resided and made improvements of the value of $1200, consisting of a dwelling twenty-five by thirty-five feet, a barn forty by

fifty feet, a spring walled up with pipe running to the dwelling, men's quarters, chicken-house, two corrals, a half mile of fencing and one hundred and twenty acres under cultivation. On these facts the local officers rendered a decision adverse to Field, and on appeal, your office reversed said decision.

The act of July 2, 1864 (13 Stat., 356) under which the company claims the land in dispute, provides in section four thereof, "that any lands granted by this act, or the act to which this is an amendment shall not defeat or impair any pre-emption, homestead, swamp-land, or lawful claim."

There is a well recognized distinction between a pre-emption claim and the pre-emption right. "The act of 1841 did more than create a right of pre-emption, or of purchase before others; it legalized settlement on the public lands with a view to cash entry, which before had been trespass and made it the basis of a claim against the United States." This claim is "the equitable though inchoate right which is contemplated in the various acts granting lands to railroad companies.

A valid settlement creates a valid claim against the United States and under either the act of 1862 or the amending act of 1864, land covered by a valid settlement is excepted from the operation of the grant, whether or not there has been a valid declaratory filing for it." Emmerson v. Central Pac. R. R. Co. (3 L. D., 271).

The settlement existing on the quarter-section in dispute at the time the company's right vested under the grant, January 21, 1870, and which had existed and been maintained for many years before that time, was not unlawful or a trespass as contended by the counsel for the company. It was under and derived from Field and Miller and in subordi. nation to the right reserved by Field to pre-empt the land if it should be found subject to pre-emption, and was but a continuation of the settlement or possession of Field and Miller from 1864 to 1868, which had been established and maintained by Field as to said quarter-section with a view to cash entry or pre-emption thereof in the contingency named. Field was a qualified pre-emptor and, if the land had been surveyed, could and doubtless would have filed a declaratory statement and perfected his claim thereto under the pre-emption law long before the definite location of the road.

The claim by him of the right to pre-empt the particular quarter-section in dispute was maintained from 1864 to 1868, during the joint possession and ownership of himself and Miller, was provided for on the sale to Callaghan and Watson in 1868, and, as soon as the status of the land was settled by the survey in 1878, he asserted said claim and took the necessary steps to perfect and secure it by moving himself and family on to said quarter-section and filing his declaratory statement therefor. His good faith is further manifest from his subsequent continuous occupancy of the land as a home and the character and extent of his improvements. His claim, from its inception, was only for the particular quar

ter section in dispute, and was, in my opinion, under all the circumstances of this case, such a "pre emption claim" as is contemplated by the act of 1864. As held in Emmerson v. Central Pac. R. R. Co., supra, such acts contemplate an "equitable" as distinguished from a strictly legal claim.

The decision of your office is affirmed.

TIMBER CULTURE CONTEST-DEFAULT NOT CHARGED.

PLATT v. VACHON.

If the specific allegations of the contestant fail for the want of evidence, he cannot, under a general charge of non-compliance with law, take advantage of evidence showing a default not specifically charged.

In such a case the issue is between the entryman and the government, and in the absence of bad faith the entry will not be disturbed.

First Assistant Secretary Muldrow to Commisssioner Stockslager. Novem1888.

ber 3,

In the timber culture contest of Theron D. Platt v. Alexander Vachon, appealed by Vachon from your decision of March 4, 1887, the record discloses the following facts:

On May 21, 1880, Vachon made timber culture entry for the SW. of Sec. 22, T. 135 N., R. 56 W., Fargo land district, Dakota.

Platt instituted contest April 10, 1885, and a hearing in the case was duly had on June 30, and July 1st and 3d following.

The local officers found in favor of the entryman and dismissed the coutest. On appeal you found that the entryman had not complied with the timber culture law, and held his entry for cancellation.

Where good faith in attempting to comply with the law satisfactorily appears, and the legal rights of a third party are not involved, it does not follow that a non-compliance, iuside of the statutory time, with some of the requirements of the timber culture law by an entrymau will warrant the forfeiture of his claim.

The contestant herein alleged in his affidavit of contest, that the entryman after breaking twenty acres, and the year following back-setting six acres of said land, failed to further cultivate to crop or otherwise any part thereof, either in 1882 or 1883; that he "wholly failed to plant trees or tree seed on ten acres of said tract or any part thereof during the fourth year of said entry, or at any other time;" that there were no trees growing on said tract, and that the ground plowed "is now all grown up to weeds."

The following facts were shown at the hearing, by a preponderance of the evidence:

Appellant resided sixty miles from the land in contest and the work done on it he hired to be done. The requisite quantity of land was

plowed in 1880, and six acres replowed in 1881, and a man engaged to crop it to oats, to whom the necessary seed oats was furnished. It was, however, not cropped or further cultivated that year. In 1882 ten acres were cropped to wheat. In the spring of 1883 the land was again plowed, and a little over eight and a half acres planted to trees. The summer of 1883 was quite dry, and from some cause nearly all of these trees died. In the fall of that year the ground was replowed and planted to trees in rows four feet apart each way. These trees received no culti vation during 1884, and from one-third to one-half of them failed to grow, or were killed by a prairie fire, which crossed that year a part of the land planted. The land planted grew up badly to weeds, and was not protected by a fire-break. Appellant, before the institution of this contest, had procured tree seed and engaged a party to have the land replanted where the trees were missing.

From this state of facts bad faith on the part of the entryman certainly can not be inferred. The material facts specifically alleged in the contest affidavit, too, are not only not sustained by the evidence adduced, but are disproved. The contestant having failed to support by proof the facts alleged, has acquired by his contest no legal right to have the entry canceled, even though it should be found from the evidence that the entryman had failed to protect and keep in a healthy growing condition the trees planted, because he failed to put that question in issue. It is true that the contest affidavit contains the general allegation "that the tree claim law has not been complied with during the second, third, or fourth years since making said entry."

A failure to properly plant, properly cultivate, or properly protect the trees planted, and to keep them in a healthy growing condition, can not be taken advantage of under such a general allegation by a contestant who makes specific charges of failure to comply with the law, and then fails to sustain his charges by proof.

The contestant having failed to sustain his charges, the question of canceling the entry and forfeiting the entryman's claim becomes one between him and the government alone, and generally in such cases, where bad faith can not reasonably be inferred, the entry will be permitted to remain intact.

The local officers found from the evidence in the case that

The efforts the claimant has made to get the required work done; the number of persons he has employed at divers times to do the work, or to assist in its perform. ance; the attention he has bestowed upon the matter; the readiness with which he has responded to every call from his numerous employés or agents engaged to perform the work, and the liberal amounts of money he has expended to ensure a compliance with the provisions of the timber culture law, establish conclusively his good faith in the matter.

In the finding of good faith in the entryman I concur, and as Platt has failed to sustain his allegations as to the facts fairly in issue, his contest is dismissed, and appellant's entry will remain intact.

The decision of your office is therefore reversed.

PRE-EMPTION-SETTLEMENT-RESIDENCE.

HENRY HOFFMEISTER.

Residence begins with the first act of settlement where such settlement is followed up by an actual inhabitancy of the land in good faith.

Acting Secretary Hawkins to Commissioner Stockslager, November 9, 1888.

I have considered the appeal of Henry Hoffmeister from your office decision of April 12, 1887, rejecting his proof and requiring him to make new publication and proof on his pre-emption cash entry for SW. 1, Sec. 35, T. 102 N., R. 66 W., Mitchell Dakota land district.

The record shows that said Hoffmeister settled upon said land A pril 5, 1884, his first act of settlement being the erection of a house, and his family came thereon to live on the 15th day of April. He made final proof October 10, 1884.

In your letter you say:

He established residence thereon April 15, 1884. Claimant made proof October 10, 1884. He could not, therefore, have resided on the land six months immediately prior thereto, and his proof is rejected.

It has been frequently held by this Department that while the rule requiring six months' residence is wise and proper as a general rule, it is not to be indiscriminately applied, nor when good faith otherwise sufficiently appears.

It has also been held by this Department that a settler establishes a residence the instant he goes on the land for the purpose and with the bona fide intention of making his home there to the exclusion of one elsewhere. Humble v. McMurtrie (2 L. D. 161); Grimshaw v. Taylor (+ L. D. 330); Houf v. Gilbert (5 L. D. 238); United States v. Skahen (6 LD. 120).

It appears from the evidence that claimant began the erection of his house on April 5, and that it was completed and his family had moved in on the 15th of said month, that his residence thereon was continuous and that his improvements consisted of a house ten by twelve feet, and thirty-three acres of breaking, eight acres of which had been in crop that season.

The occupancy of the house by the family within a few days after its completion sufficiently indicates that the intention of claimant was to make his home upon said land, and his residence would therefore, for the purpose of showing good faith-and this is the only purpose for which six months' residence is required-date from the commencement of his settlement, viz: April 5, 1884, and this allows a few days over six months to date of final proof.

Your said decision is accordingly reversed and the entry may be passed to patent.