Decisions of the Department of the Interior and the General Land Office in Cases Relating to the Public Lands

tion of service. On the back of said discharge I find the following indorsement:

"WAR DEPARTMENT, ADJ. GENL'S OFFICE,

July 25, 1878.

The within named man was enrolled February 12, 1862, and mustered into service to date from June 1, 1861, for 3 years under the name of Eldolph Labardie.

S. N. BENJAMIN,

Asst. Adj Gen'l."

This paper was also before your office when the decision appealed from was rendered.

I think that claimant is entitled to credit for military service from June 1, 1861, till August 30, 1864, a period of 3 years 2 months and 29 days; and as your office gave him credit for 1 year, 9 months and 11 days actual residence upon his claim-thus making an aggregate period of 5 years and 10 days-I can see no objection to allowing his final proof.

Upon the only question raised by the appeal I reverse your decision in the case.

APPROXIMATION-SETTLEMENT BEFORE SURVEY.

LAFAYETTE COUNCIL.

Initiation of claim prior to government survey, extent of cultivable land falling within the lines of the claim as finally surveyed, and valuable improvements on each sub-division considered sufficient reasons for waiving the requirement of approximation.

Acting Secretary Muldrow to Commissioner Sparks, May 10, 1887.

By letter of November 13, 1885, your office suspended the pre-emption cash entry of Lafayette Council for the N. of the SE. and lots 2 and 3, Sec. 9, T. 153 N., R. 64 W., Devil's Lake, Dakota, containing 185.90 acres, for excess in area, and required the entryman to relinquish such legal sub-division not covered by his principal improvements, as would reduce the area to the legal maximum, or an approximation thereto.

It appears that claimant settled on January 4, 1883, and on January 7, 1884, made proof before the local officers and received cash certificate; that his improvements consist of a house, barn, well, and about thirty acres of breaking; that he made his filing before government survey, and in accordance with the lines of a private survey, for the N. of the SE. and the S. of the NE. of said section; that after said settlement the government survey was extended over said land, leaving said N. of the SE. unchanged, but making two lots of said S. of the

NE., viz., said lots 2 and 3, containing 54.60 and 51.30 acres respectively, and that the filing was changed in accordance therewith.

Claimant further alleges that the government survey threw about thirty-five acres of worthless alkali land into the boundaries of his claim along the northern line of said lots; that this land was not within the original claim, and that he believed it would be excluded by the gov ernment survey; and that by reason thereof he has only about 150 acres that can be cultivated. His improvements are substantial, and lie partly within each subdivision.

In view of all the circumstances of this case, I am of opinion an exception should be made to the rule of approximation.

Said decision is therefore reversed.

FORT BROOKE MILITARY RESERVATION-ACT OF JULY 5, 1884.

DANIEL MATHER.

In the absence of an adverse claim, failure to file declaratory statement will not prejudice the right of the settler to make final proof and payment.

The act of July 5, 1884, governs the disposal of all lands in abandoned military reservations not theretofore disposed of, protecting the rights of settlers prior to January 1, 1884, who were qualified to make homestead entry.

Acting Secretary Muldrow to Commissioner Sparks, May 10, 1887.

On October 30, 1885, Daniel Mather offered an application in writing at the local office of Gainesville, Florida, to be allowed to make pre-emption entry under the provisions of the act of July 5, 1884, of lots 8, 9 and 10, Sec. 24, T. 29 S., R. 18 E., lot 16, Sec. 18, and lots 12, 13 and 14, Sec. 19, T. 29 S., T. 19 E., and also offered a formal notice of intention to make final proof for said tracts. In an affidavit filed therewith applicant alleged that he settled on said land prior to January 1, 1884, for the purpose of securing a home and entering the land under the preemption law; that he established residence thereon in the year 1878, and has remained in continual occupation and possession of the tract ever since; that he has a good dwelling house there, and has improved the tract and made it his home, and that he has never made a homestead entry, and is qualified to make such entry.

The local officers rejected the application, "for the reason that applicant has no claim of record upon which proof can be made covering the lands in question."

Your office, as stated in letter of December 14, 1885, found that the land in question was within the abandoned portion of the Fort Brooke Military reservation, and held that "without passing upon the question as to the right of Mather under the act of July 5, 1884, I would state that having no filing of record for the land in question, he can not be permitted to make a pre-emption entry for the same."

The allegations of claimant indicate a full compliance with the preemption law as to residence, cultivation and improvement. (Sec. 2259, R. S.) Section 2265 of the Revised Statutes provides that:

Every claimant under the pre-emption law for land not yet proclaimed for sale is required to make known his claim in writing to the register of the proper office within three months from the time of the settlement, giving the designation of the tract and the time of settlement; otherwise his claim shall be forfeited and the tract awarded to the next settler in the order of time on the same tract of land, who has given such notice and otherwise complied with the conditions of the law.

It is well established that a failure to so file his declaratory statement will not work a forfeiture of the pre-emptor's right, but will give the better right to the next settler in the order of time, who has filed his declaratory notice and otherwise complied with the law. Johnson v. Towsley (13 Wall., 72). In the absence of an adverse claim the failure to file the declaratory statement will not prejudice the right of the settler. The declaratory statement is a notice given by the settler of his intention to purchase the land, and such notice protects his claim. against subsequent settlers, for a specified time. The notice is for the protection of the settler, not of the government. In this view I am of opinion that claimant should be allowed to submit proof, if no valid adverse claim attached prior to his said application.

It appears from the record that Mather applied to file declaratory statement for the land in question in May, 1883, and that the application was rejected by the local officers, by your office, and, on May 16, 1884, by this Department, on the ground that the lands included in said reservation should be appraised and sold at public sale. (2 L. D., 606.) This leads to a consideration of the proper method of disposing of the lands in said reservation, not yet disposed of.

The reservation for Fort Brooke was established by Executive order of December 10, 1830, and embraced an area sixteen miles square. After various modifications and reductions, the remainder, containing 148.11 acres, was duly relinquished by the Secretary of War to the Secretary of the Interior, January 4, 1883, under the act of August 18, 1856. The present inquiry relates to lands within the area thus relinquished. Said act of 1856 provided:

That all public lands heretofore reserved for military purposes in the State of Florida, which said lands in the opinion of the Secretary of War are no longer useful or desired for such purposes, or so much thereof as said Secretary may designate, shall be and are hereby placed under the control of the General Land Office to be disposed of and sold in the same manner and under the same regulations as other public lands of the United States. (11 Stat., 87.)

Section six of the act of June 12, 1858 (Ibid., 336) provided:

That all the exising laws or parts of laws which authorize the sale of of military sites, which are or may become useless for military purposes, be and the same are hereby repealed and said lands shall not be subject

NE. 1, viz., said lots 2 and 3, containing 54.60 and 51.30 acres respectively, and that the filing was changed in accordance therewith.

Claimant further alleges that the government survey threw about thirty-five acres of worthless alkali land into the boundaries of his claim along the northern line of said lots; that this land was not within the original claim, and that he believed it would be excluded by the government survey; and that by reason thereof he has only about 150 acres that can be cultivated. His improvements are substantial, and lie partly within each subdivision.