While the widow or heirs are required to cultivate and improve the land entered by a deceased homesteader, they are not required to reside on the land. Agnew r. Morton, 13 L. D., 225.

Nor will a charge of abandonment lie where it is shown that the entryman died within less than six months after making entry and prior to the establishment of residence, if it be shown that the heirs thereafter cultivated and improved the land. Swanson . Wisely's heir, 9 L. D., 31; Tauer r. The Heirs of Walter A. Mann, 4 L. D., 433. But it is insisted in the argument that the heirs are entitled only to the same rights under the act of 1892 (supra) that contestant would have been if his death had not occurred, and that this right can not be separated from the obligations which the entry imposes; that among these obligations residence on the land is required.

It is also insisted that the entry should have been made in the name of all the heirs; and that the entry made for the heirs generally exhausts their rights individually to make any further entry.

The question as to whether the entry made in behalf of the heirs exhausts the rights of the heirs individually to make another entry is not involved in this case. Should any of the heirs hereafter apply to enter lands, it will then be a proper subject of inquiry.

It is held in the case of Bernier v. Bernier, 147 U. S., 244, that: If there are adults as well as minor heirs, the conditions under which such claim will be perfected and patent issued are different from the conditions required where there are only minor heirs and both parents are deceased. In the one case the proof is to extend to that of residence upon the property, or its cultivation for the term of five years, and show that no part of the land has been alienated except in the instances specified, and the applicant's citizenship and loyalty to the government of the United States; but in the other case, where there are no adult heirs and only minor heirs, and both parents are deceased, the requirements exacted in the first case are omitted, and a sale of the land within two years after the death of the surviving parent is authorized for the benefit of the infants.

The decision just quoted deals with the rights and obligations of minor and adult heirs in their inheritance of lands (under sections 2291 and 2292 of the Revised Statutes), upon which an entry has been made, when the entryman and his widow are both dead. In such case, either residence on or cultivation of the land may be shown as a part of the requirements when the adult heirs make final proof.

The act of 1892 (supra) casts upon the heirs of a deceased contestant (if citizens, etc.,) the same right to enter the land upon the cancellation of the former entry as a result of a contest commenced by the deceased. Thereafter, the obligations imposed upon such heirs are no greater than those which are cast upon the heirs of a deceased homesteader; and in the latter case cultivation of the land for the required period, without actual residence thereon, is held to be sufficient.

It was not improper to allow one of the heirs to make entry of the land and in behalf of all the heirs.

The decision appealed from is affirmed.

ADAMS ET AL. v. QUIJADA ET AL.

Motion for review of departmental decision of July 12, 1897, 25 L. D., 24, denied by Acting Secretary Davis, September 22, 1897.

FINAL PROOF-RULE 53-FEES—OKLAHOMA LANDS.
MCCALLA . ACKER.

In the case of final proof taken during the pendency of a contest, under rule 53 of practice, the local office has no jurisdiction except to file said proof for action when the contest is finally closed. Where such proof is taken before some officer other than the register and receiver said officers are entitled to no fees until final action by them on said proof.

The sufficiency of final proof taken under said rule, or the right of the entry man to withdraw the same, should not be considered until final disposition of the pending contest.

A settler on Oklahoma lands is not disqualified by starting into the race from the hundred foot strip on the Chilocco Indian school reservation.

Acting Secretary Davis to the Commissioner of the General Land Office, (F. L. C.) September 22, 1897. (C. J. W.) On October 5, 1893, Calvin S. Acker made homestead entry, No. 1600, for the SE. of Sec. 9, T. 27 N., R. 2 E., I. M., at Perry, Oklahoma.

On October 10, 1893, John S. McCalla filed affidavit of contest against the entry, alleging, in substance, prior settlement; and on June 6, 1893, he filed an amended affidavit, in which his allegation of prior settlement was made more specific, and in which it was charged, that defendant illegally entered the Cherokee Outlet from the Chilocco Indian school · reservation, on the day of the opening.

On July 16, 1894, a hearing was had, and on April 17, 1895, the local officers rendered a decision in favor of defendant, from which the plaintiff appealed.

On March 25, 1895, Acker filed his application to make final proof before Virgil H. Brown, probate judge at Newkirk, Oklahoma, on May 10, 1895, notice of which was ordered published by the local officers, on March 29, 1895.

On the day named Acker and his witnesses appeared before the probate judge, and their testimony was taken.

On the same day McCalla filed a protest against allowing and approv ing the final proof on account of the pending contest, and charging Acker's disqualification.

McCalla claimed the right to cross-examine Acker and his witnesses, who submitted to such cross-examination, and McCalla submitted additional testimony. The testimony and protest were forwarded to the local office, and, on May 15, 1895, the local officers rejected the protest because McCalla refused to tender the fees to which said officers are entitled, for examining and approving such testimony. On May 25, 1895, McCalla filed in the local office a protest against paying said fees.

On July 26, Acker filed in the local office a paper in which it is stated that, after final proof was taken, it was withdrawn, and he asks to withdraw and dismiss the same. These papers were forwarded by the local officers to your office, without further action, and they were considered by your office together with the appeal of the plaintiff from the decision of the local officers, in the decision rendered on February 13, 1896. Said decision affirms the decision of the local officers, and dismisses the final proof of Acker, and the protests of McCalla.

The case comes before the Department on further appeal of plaintiff' from your office decision. The errors alleged to have been committed are as follows:

1. Said decision is contrary to law, and the rules and decisions of the Interior Department.

2. The findings of fact are contrary to, and not supported by the weight of the evidence.

3. The Hon. Commissioner erred in finding that Acker ever established or maintained any bona fide residence on the land involved.

4. The Commissioner erred in not finding that Acker was not qualified to make entry for land in the Cherokee Outlet, by reason of his having obtained an undue advantage, and being at the hour of opening to settlement, within the boundary of the land declared open to legal settlement south of the south line of the Chilocco Indian school reservation.

5. The Hon. Commissioner erred in dismissing the final proof of Acker and McCalla's protest and proof against the same.

6. The Hou. Commissioner erred in not finding that McCalla is the only settler on the land involved, who has following (followed) up his initial acts of settlement by the establishment and maintenance of residence thereon; that he is the prior settler; that his rights to said land are superior to those of the defendant; and that the defendant in offering final proof in the face of an adverse claim of prior settlement on the land, is bound thereby, and will not be allowed to withdraw the same.

7. The Hon. Commissioner erred in dismissing McCalla's contest and in not canceling Acker's homestead entry, and allowing contestant McCalla to make entry for the land involved.

Neither the decision of the local officers nor the appeal of plaintiff therefrom involved any question connected with defendant's commutation final proof, offered long after the hearing on the contest proceedings had closed before the local officers. The final proof of Acker was, therefore, offered pending the contest, and the local officers, under amended rule 53 of practice, had no jurisdiction to do more than file said final proof for action after the contest was finally closed. (14 L. D., 250.) The local officers seem to be entitled to no fees, except those for reducing the testimony to writing in this class of cases, until the proof is finally passed upon, which can only be done after the contest has closed and the validity of the entry been passed upon. Where the proof is taken before some competent officer other than the register and receiver, these officers are entitled to no fees until final action on the proof. It follows that it was error to dismiss McCalla's protest because of his failure to pay the fees in advance. Neither the sufficiency of the final proof nor the right of defendant to withdraw it, should be passed upon pending the contest, and your office erred in allowing the withdrawal

of said proof and the dismissal of the protest, and so much of your office decision as refers thereto is reversed, and said proof and protest will be held to await the final disposition of the contest, when they will be returned to the local office for appropriate action. This leaves the case to be determined on the record as made at the hearing of the contest. The claim of the plaintiff is based on the following statement of facts, as reported by the local officers:

That at 12 o'clock, noon, September 16, 1893, he entered the Cherokee Outlet from a point about a quarter to one-half mile west of the west side of the Chilocco Indian school reservation upon the north line of the Cherokee Outlet;

That he rode south and southeast for a distance of about six miles and then rode to the quarter section in controversy and first stopped at the southwest corner of the same, or upon the southwestern portion of the tract; stuck a flag thereon; on the same afternoon laid a foundation of rocks near the southeast corner of the tract and left, going to the town of Cross; returned to the tract on Monday, September 18, drove over it; returned again on September 19, and plowed a small patch of land, returned the next day; laid off a land for plowing and on the following Monday, September 25th, returned to said tract and commenced plowing, continuing to plow at different times until about the 7th or 8th of October, during this time camping upon another tract of land;

On October 7, he sowed a small patch of wheat and during that time camped several nights on the claim; he left the tract on October 9th, returned on the morning of the 12th of October, and remained on the tract, or in the vicinity of the tract, until about November 4th, when he returned to his home at Cedarvale, Kansas; February 18th, 1894, he returned to this tract, but did no work thereon, and moved on the land March 14, with his family, since which time he has resided on the tract. The contestee bases his claim to said tract upon the fact that at 12 o'clock, noon, central standard time, September 16, 1893, he was at the south side of the Chilocco Indian school reservation at the northeast corner of section 33, directly north of the east side of the tract in controversy;

That he rode directly to the tract in controversy; dismounted stuck a stake consisting of a fishing-pole composed of three joints, to which was attached a piece of flannel cloth about 2 feet wide and 24 feet long, in the center of which was a piece of white cotton cloth about 8 inches square marked with his name;

That he remained upon the tract looking the claim over and riding over the same, and that he met the contestant when he came upon the land, or shortly thereafter; That he spaded up some dirt and placed the same around the flag; returned to Arkansas City, and came to the land office at Perry, and returned to the claim on Tuesday, September 19;

That in the meantime he had had plowed on the northeast corner of the tract some land, and a sod foundation erected, on which was placed four pieces of lumber nailed together and marked with his name;

That he slept on the land September 20th and September 21st; slept upon the tract the night of September 21st; made entry of it on October 5th; on October 9th, sent lumber to the tract and on October 12th erected a house thereon;

On October 20th fenced the entire tract; was upon the claim frequently until December 13th, at which time his wife died; prior to that time she being seriously ill all of the time after he made settlement upon this tract of land;

His improvements at the time of trial are of the value of six to eight hundred dollars and his good faith, as shown by his acts, is apparent;

It is further shown that the horse ridden by contestee was a horse of more than ordinary qualities as to speed and endurance; that the distance he traveled in running to this tract was 8 miles and that he first made settlement upon the northeastern portion thereof; and it is also shown that the horse ridden by the contestant was

not an extraordinary horse and that the distance he traveled, as detailed by him, is in the neighborhood of 15 miles, the same being something over twelve miles by section lines, provided he had not deviated from a direct course; .

Both these parties claim prior settlement and both claim to have been first upon the tract. Considering the distance traveled and the quality of the horses, in our minds there can be no doubt that the contestee, Acker, was first upon the tract and the first party to stake and claim the same after 12 o'clock, noon.

The contestant, McCalla, seeks to claim that he traveled the distance of about 15 miles in from 30 to 33 minutes, which statement in itself we believe to be unreasonable; but aside from this question, whatever acts McCalla did upon this claim, were, in our opinion, abandoned by his failure to establish his residence thereon until March, 1894.

It will thus be seen that the local officers found Acker to have been the first settler, and further that McCalla had abandoned his first settlement. Your office concurred with the local office in finding that Acker was the prior settler, but properly, I think, held that McCalla had not abandoned his settlement.

Your office reports the following facts as to Acker's settlement:

Acker testified that he started in the race from within the one hundred foot strip south of the Chilocco school reservation at 12 o'clock, noon, September 16, 1893, and after traveling about eight and one-half miles reached the land at 12.27 P. M. Immediately afterwards he stuck a stake with a flag on it and in a short time stuck another stake. Remained until evening, when he went to Arkansas City and from there to Perry. Returned September 19, 1893, but in the meantime a man he had employed did some plowing and put up a foundation. Was on the land September 20 and 21 and the last night slept there. His wife was at a hotel in Arkansas City very ill with consumption and he went back and remained with her until October 1, 1893, when he went to Perry and made his entry October 5, 1893. Returned October 6, 1893. Bought some lumber October 9, 1893, and built his house three days afterwards, into which he moved the latter part of the month. October 25, 1893, he fenced the land.

During the latter part of November and early part of December, 1893, he was not on the land very often, on account of the continuous illness of his wife, who died December 13, 1893, but after December 18, 1893, until February, 1894, he was frequently on the land and had some plowing done. In March, 1894, had more plowing done, and has now sixty-five acres plowed, about twenty acres of which is in corn, and about the middle of the same month moved his house to another part of the land and built an addition. Dug a well forty-six feet deep, built a stable for four horses and a carriage, planted fifteen or twenty trees and built a division fence through the middle of the land. This is (was) his home as it is today. He is a physician and has a practice extending over a large area, which requires a great deal of attention and keeps him from home for days at a time. On cross-examination he names only two nights he was on the land after December 18, 1893, and during the remainder of that month. During January, 1894, was on the land as much of the time as he was not away on professional business. Was on the land possibly six nights in February, 1894. Had had a tenant in his home since the middle of March, 1894. Has a cot, table, chairs and bedding in the house and when there sleeps on the cot. Before September 16, 1893, was living and had an office in Arkansas City, and has an office there now.

The evidence shows that Acker was the first to reach and stake the claim on September 16, 1893, otherwise it is not shown that there was any material difference in the diligence used by the parties in making valuable improvements and establishing residence on the land.