RAILROAD WITHDRAWAL-ACT OF JUNE 22, 1876.

FLORIDA RY. & NAVIGATION Co. v. BOARDMAN.

The act of June 22, 1876, which repealed the statute prohibiting the disposal of public lands in Florida otherwise than under the homestead law, did not operate to relieve lands from the effect of a subsisting railroad withdrawal; nor did the "offering," under the proclamation of July 13, 1878, of lands thus withdrawn affect their status as, by the terms of said proclamation, "lands reserved for railroad purposes" were expressly excepted from the lands to be offered.

Secretary Vilas to Commissioner Stockslager, July 24, 1888.

I have before me the appeal of the Florida Railway & Navigation Company from your decision of November 3, 1886, holding for approval Charles A. Boardman's cash entry No. 1339, of February 7, 1881, for the SW.SE. 4 Sec. 15, T. 10 S., R. 24 E., Gainesville district, Florida. As your said decision states, the tract in question "is within the fif teen mile, indemnity limits of the grant of May 17, 1856 (11 Stat., 15), for the Florida Railroad Company-now Florida Railway and Naviga tion Company-a withdrawal for the benefit of which was ordered in the year 1856."

Your said decision adds, however, that "said land was offered on November 9, 1878, under act of June 22, 1876, in compliance with the President's proclamation No. 837, dated July 13, 1878;" that "on February 7, 1881, the same was purchased by Charles A. Boardman, in connection with the N. of NE. 4 and NE. 4 NW. 4, Sec. 22, of the township specified, per cash entry No. 1339," and that "the land in question has not been selected for railroad purposes."

Upon this basis of fact you hold that "Mr. Boardman's entry, having been made subsequent to said offering, and prior to the withdrawal of March 26, 1881, was properly admitted."

But in my opinion the so-called offering of 1878, did not really, in law, affect the status of the tract in question.

Both at the date of said "offering "-November 9, 1878—and at the time of Boardman's attempt to purchase-February 7, 1881-the withdrawal for the benefit of said grant was subsisting in full force and effect (Atlantic, Gulf, and West Indies Transit Railroad Co., 2 L. D. 561; Florida Railway and Navigation Co., 5 L. D., 107); and neither the "act of June 12, 1876 (which, by the way, became law on July 4, 1876) nor the "proclamation of the President, No. 837," in any way authorized the land officers to make the attempted sale to Boardman in disregard of said withdrawal.

The act referred to simply repealed the previously existing statute forbidding the disposal of the public lands otherwise than under the homestead law. It neither revoked the withdrawal itself, nor excepted the land in question from the operation of the withdrawal.

The President's proclamation, on the other hand, expressly excepted from among the lands to be offered, "lands reserved for railroad pur

poses." This exception, in view of the withdrawal mentioned, should have prevented the attempted "offering" of the tract afterwards included in Boardman's entry.

Under such circumstances I cannot concur in your statement that "the government saw fit to exercise its right to sell the tract in question, and offered the same in 1878, thus in effect revoking the withdrawal of 1856."

Your said decision is accordingly reversed.

PRE-EMPTION ENTRY-RESIDENCE.

DANIEL LOMBARDI.

The fact that land is not inhabitable throughout the entire year will not preclude its purchase under the pre-emption law.

Secretary Vilas to Commissioner Stockslager, July 24, 1888.

This is an appeal by Daniel Lombardi from your office decision of January 3, 1887, wherein you affirm the action of the local office in rejecting his pre-emption proof submitted November 13, 1886, under his declaratory statement filed March 17, 1884, alleging settlement in 1874 upon W., SW. 4, Sec. 4 and N. 1, SE. 1, Sec. 5, T. 12 N., R. 15 E., Sacramento, California.

The plat of said township was filed March 25, 1876.

The claimant averred on final proof taken by the county clerk of El Dorado county that he settled and established residence on the land in June, 1874, that his improvements consisted of a house of hewed logs twenty by thirty feet, stable, corral, milk house, fencing, about four acres broken, total value $600, that he used the land for grazing stock and raising hay and that his residence had been continuous "except when compelled to leave on account of snow."

From the further testimony of the claimant and witnesses to his final proof, it appears that after his settlement in June, 1874, he inhabited the land from about June 1, to November 1, of each year, that in consequence of the heavy snows, the tract being of great altitude, he removed with his stock to the lower foot hills.

The claimant stated that he did not own other land but let his stock แ run on unclaimed land during the winter;" also that the tract in question was his only home.

The action of both the local and your office, is based upon your office decision of July 10, 1886, in the case of Clough v. Morrow. In this case Morrow a homestead entryman, contested the right of Clough, a preemption claimant, to make cash entry. Without passing upon the merits of the controversy, your office, finding from the testimony that the land was inhabitable only four or five months during the year, held that it was not subject to entry under any law requiring continuous residence. In this I cannot concur.

The statute does not prohibit pre-emption entry upon land of like character to that involved herein. While it is true that the claimant is required to show a continuous residence, the department has repeatedly held that absences which do not impeach his good faith may be excused. This claimant, in my opinion, settled upon the land with the honest intention of making it his home, he has established and for twelve years has continued his occupancy of the same and has put valuable improvements thereon. His absences, although extended, have been the result of a cause beyond his control. They are fully accounted for and do not in any manner indicate that he has acted with fraudulent intent.

The entry should be allowed. Your decision is reversed.

HOMESTEAD ENTRY-RESIDENCE-NATURALIZATION.

A. R. ARCHIBALD.

Residence alleged under the homstead law is not consistent with the maintenance at the same time, in another State, of the residence required as a pre-requisite to citizenship under the naturalization laws.

Secretary Vilas to Commissioner Stockslager, July 24, 1888.

The record in this case shows that on December 9, 1882, A. R. Archibald made homestead entry for the N. W. 1, Sec. 23, T. 149 N., R. 66 W., Devil's Lake land district, Dakota, and that he commuted the same to cash entry No. 35, on December 1, 1883.

The commutation proof of the claimant shows that he established his residence on the land on May 15, 1883, and that he and his family, a wife and one son, have resided thereon continuously since that date. He was "absent a few times on business," but his family was on the land all the time. His improvements consist of a frame dwelling house twelve by fourteen feet, with an addition ten by twelve feet in size, and 15 acres of breaking, valued at $250. He swears that he is a naturalized citizen of the United States, but no record evidence of such fact accompanied his proof.

On February 1, 1887, your office rejected this proof because of claimant's short residence and slight improvements, and for the reason that no record evidence of his naturalization had been furnished, and there upon his cash certificate was held for cancellation, but his original entry was allowed to stand subject to his making new proof showing full compliance with the law in every respect.

From this decision claimant appeals. With his appeal he offers the required record evidence of his naturalization, showing that prior tothe date of his original entry he had declared his intention to become a citizen of the United States as required by law, and that on November 12, 1883, he was duly admitted to citizenship by the district court of Hennepin county, Minnesota, upon taking the oath prescribed and furnishing the proof required by law.

His final proof, aside from the question of his citizenship, appears on its face to be satisfactory. His residence on the land is shown to have been continuous for the required period of six months prior to the time. of making proof, and his improvements are quite as extensive as are usually found in such cases.

He was required, however, by the third clause of Sec. 2165, Revised Statutes, to prove to the satisfaction of the court which admitted him. to citizenship, as aforesaid, that he had resided within the United States five years, at least and within the State or Territory where such court is at the time held, one year at least, and he seems to have furnished this proof. By it he must necessarily have shown and his certificate so recites that he was a resident of the. State of Minnesota for one year previous to the time of his admission to citizenship, as stated. It is evident that the one year here referred to, must mean the year next preceding the date of said naturalization. This period covers the time during which he asserts, in his final proof that he resided continuously on his claim.

The residence required by the naturalization laws is a domiciliary residence, and the same in character, as that required of a claimant under the homestead law. The claimant here, could not therefore, have maintained a residence in the State of Minnesota, under the naturalization laws, and also the required residence on his homestead claim in the Territory of Dakota, at one and the same time.

Upon the state of facts, thus disclosed, the case is one, I think, that requires further investigation on the question of claimant's alleged resi dence on the land, and his proof and cash entry are for that purpose suspended.

You will, therefore, direct the local officers to call upon him to furnish supplemental evidence satisfactorily explaining, if he can, the apparent conflict in his present showing, as herein pointed out, and if within sixty days from notice hereof he shall make the required explanation to the satisfaction of your office, his proof will be approved and passed to patent, otherwise the same must be rejected, but without prejudice to his submitting new proof within the lifetime of his original entry, showing full compliance with the law in all respects. Your office decision is accordingly modified.

FINAL PROOF-PUBLICATION-ACT OF MARCH 3, 1879.

The paper to be designated for the publication of final proof notice must be a bona fide newspaper in general circulation, published nearest the land for which proof is to be made, whether such paper is published in the county where the land is situated or otherwise.

Secretary Vilas to Commissioner Stockslager, July 24, 1888.

On November 18, 1886, the register and receiver of the land office at San Francisco, California, addressed to your predecessor, Hon. W. A. J.

Sparks, then commissioner, a letter for the purpose of obtaining from him his construction of the provisions of the act of March 3, 1879, (20 Statutes at large p. 472) regarding the notice of final proof.

In reply, your predecessor by letter dated November 30th construing the said statute, instructed the said local officers, that the newspaper selected for the publication of the applicant's intention to make final proof should be the bona fide paper in general circulation published nearest the land for which the proof is to be made, irrespective of the fact, whether the paper is published in the county in which the land lies or not.

The local officers, excepting to this construction of the statute instituted an appeal to this Department.

It might be said, that your office letter of November, 1886, is not a decision in a case pending, nor are the local officers in a position to appeal; they are not parties but public officers, bound to execute their official duties under the direction and instruction of your office; but the allowance of said appeal may be taken as equivalent to a request on the part of your office for a departmental expression of opinion on the question involved.

The local officers argue with great stress, that the paper designated for the publication of the notice of final proof should be one published in the county wherein the land is situated, though such paper might not be the one published nearest to the land; and the reason given is that the inhabitants of a county will take and read their own county paper in preference to the paper of another county. This may be true, but the words of the statute are clear and precise and permit of but one interpretation. The act of March 3, 1879 (20 Stat., 472) provides

Upon the filing of such notice, the register shall publish a notice, that such application has been made, once a week for the period of thirty days in a newspaper to be by him designated as published nearest to such land.

The practice has been in conformity with the plain requirements of the statute. (See circular of April 21, 1885, 12 C. L. O., 34) The paper designated must be a bona fide paper in general circulation "published nearest the land geographically measured." See also circular approved August 1, 1881, (3 L. D., 52); David B. Wellman, (5 L. D., 503).

The instructions expressed in your office letter of November 1886, are accordingly approved.

PRACTICE-CONTESTANT-NOTICE; TIMBER CULTURE.

UPPENDAHL v. WHITE.

The personal attendance of the contestant at the hearing is presumptively essential to the proper presentation of his case, and a contest should be re-instated where it was dismissed in the absence of the contestant; and such absence was the fault of the claimant.