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office-on November 3, 1884, made timber-culture entry No. 5923 for said tract.

Nearly six months prior to this, however, to wit, May 6, 1884, one John H. Baldwin had made timber-culture entry No. 5110 for the same tract. April 28, 1885, your office held Brown's entry for cancellation, in a decision of which the following is all except the introductory statement of the case:

The Hon. Secretary of the Interior, on October 20, 1884, decided substantially as follows in case of Eva Brown, viz: that claimant had no legal right to initiate a contest, and because of this fact could not acquire a preference right to enter the land in controversy, but as no other right bad intervened, there was no objection to her being permitted to enter the tract as the first legal applicant.

When the decision cited was made, the Hon. Secretary was not aware of the intervening right of John H. Baldwin, whose timber-culture entry was at that time of record, and was a bar to any other timber entry in that section. When the appeal of Eva Brown was forwarded to the Hon. Secretary by my letter "P" of May 22, 1884, no mention was made therein of the intervening right of Baldwin, because the clerk having charge of the case omitted to make proper annotations upon the tract books.

You will notify Brown that her entry is held for cancellation, and allow the usual time in which to appeal from this decision.

From the said decision of your office Brown appeals to the Department.

The holding of your office, to the effect that the departmental decision of October 20, 1884 (supra), allowing Brown "the benefit of being considered the first legal applicant" was conditioned upon the fact of "no other right having intervened" at the date of said decision is untenable. Said decision rested simply upon the conclusion that, although Brown had applied to contest upon a ground which she could not maintain, yet inasmuch as she had subsequently filed a relinquishment, and no adverse right had intervened up to that time, she should be allowed to make entry of the land.

Your office decision holding Brown's entry for cancellation for conflict with that of Baldwin's is therefore reversed.

HOMESTEAD ENTRY-ABANDO NMENT.

ANDERSON v. ANDERSON.

The charge of abandonment will not lie where it appears that residence was established and the subsequent absence was the result of judicial compulsion.

Secretary Lamar to Commissioner Sparks, July 7, 1886.

On May 12, 1869, Anders Anderson filed declaratory statement for the NW. of Sec. 30, T. 114, R. 35, Redwood Falls, Minnesota, alleging settlement April 2, the same year. On July 3, 1873, he made timber

culture entry for the same tract and surrendered his declaratory statement receipt, though it does not appear that the filing was ever canceled. On April 13, 1880, he relinquished his timber-culture entry, and on May 17 following made homestead entry for the tract.

On August 17, 1883, Charles Anderson filed affidavit of contest against said entry, alleging abandonment. At the hearing contestant appeared personally and by counsel; contestee was represented by attorney. The testimony disclosed the following facts: That contestee settled on this tract some ten or twelve years prior to the contest, and continued his residence there, with his family, until about February 22, 1882, at which date he was arrested, charged with the murder of his wife, and taken from his homestead to the Renville jail; that he was convicted on said charge, and in May, 1883, committed to the penitentiary at Stillwater, Minnesota, for life; that on said last date his family consisted of seven children, one of whom is the contestant herein, and that four of the children were minors; that the improvements consisted of a house, worth $900, a good granary and well, one hundred acres plowed, sixty-five acres in crop, eight or nine acres fenced for pasture, and a grove of trees covering from ten to thirteen acres; that claimant had a supply of farming machinery, a considerable number of livestock, and other personal property. That after the arrest of contestee the children one by one left the homestead, finding homes elsewhere, and that in December, 1882, Charles Anderson, the last one remaining, left the land. The testimony further shows that claimant, in January, 1883, while under arrest but prior to conviction, executed a lease of said premises to one John McIntosh, then jailer and deputy sheriff at Renville, for the term of two years, from March 1, 1883, with power to sublet, in consideration of which the lessee agreed to keep the growing timber protected from fire, and the buildings from being destroyed; that McIntosh sublet the full term to one Henry Smith, who, either personally or by subtenant, protected the property and cultivated the land up to the date of hearing. It is further shown that claimant believed he could best secure the homestead for all of his children by making the lease as above stated. On this state of facts the local officers dismissed the contest, and your office on appeal affirmed their action.

While it is true that residence under the homestead law must be continuous and personal, it is also true that residence once established can be changed only when the act and intention of the settler unite to effect such a change. Anderson had lived on this tract for many years, and up to the date of his arrest had complied with the requirements of the law as to residence and cultivation. His absence from the land since that date is by judicial compulsion, which would certainly be a valid excuse for temporary absence. (Bohall v. Dilla, 114 U. S., 47). I am therefore of opinion that claimant's absence from the land under imprisonment for life does not constitute abandonment under the homestead law. No

other question is presented by the record for my consideration. Questions as to the making of final proof need not be here decided. The decision dismissing the contest is affirmed.

TIMBER CULTURE-PLANTING-CULTIVATION.

HUNTER v. ORR.

Sowing tree seeds broadcast cannot be held in compliance with the law, as it renders cultivation impracticable.

Secretary Lamar to Commissioner Sparks, July 9, 1886.

I have considered the case of Otis M. Hunter v. William M. Orr, as presented by the appeal of the latter from your office decision of February 11, 1885, holding for cancellation his timber culture entry for the W. of S. E. and the E. of S. W. 4, of Sec. 32, T. 11 N., R. 1, E., Lincoln, Nebraska.

It appears that said entry was made February 23, 1878, and that Hunter filed his affidavit of contest December 18, 1883, charging that "Wm. M. Orr has no trees on above described land, nor has there been any cultivation within the last two years, nor has there been any trees planted on said tract within that time."

Hearing was set for January 24, 1884, at which time both parties appeared with counsel and witnesses, and the trial proceeded. A large amount of testimony was taken, upon the hearing and consideration of which the register and receiver found that contestee had failed to comply with the law in the matter of planting and cultivation. Orr appealed, and your office affirmed the finding of the local office.

I have carefully examined the testimony, which I find to be very conflicting-witnesses for contestant testifying that there are but few trees on the tract, some putting the number which they were able to find upon examination as low as a dozen or thereabouts, and stating that these could only be found by searching in the weeds and grass; while witnesses for contestee testify to having found growing on the land a large number of trees, ash and elin, and that from their examination they are satisfied that there are many more than the law requires.

The examinations referred to by the witnesses for the contestee, it appears, were made at the request of and in company with Orr, the contestee-some of the witnesses testifying that they could see no trees on the tract until told and showed by Orr how to find them, viz, by getting down and parting the weeds and grass in which they grew. Iu this way they examined certain spots over the tract, and from such examination drew their conclusions, or made their estimates as to the total number of trees.

While the testimony is contradictory on many points, and especially so as to the number of trees, it is in some respects free from conflict. It is agreed that such trees as were found were small, and that they were hidden from view by the dense growth of grass and weeds; that the seeds from which they had grown, instead of having been planted, within the ordinary meaning of that .term, had been sown broadcast and harrowed in, and then left to vie with weeds and grass in their growth, there having since said sowing been no cultivation. Weeds and grass and trees were from that time left to grow together.

It is manifest that should the seeds, or any considerable portion thereof, thus placed in the ground grow, the trees would be so distributed on the tract as to render ordinary cultivation impracticable.

The reasons assigned by claimant for sowing the seed broadcast instead of planting in the ordinary way are, that he planted in the usual way within the time prescribed by law after his entry, and that because of the alternate swampy and dry or baked condition of the land, together with the peculiar character of the soil, the seeds planted failed to grow, and that he then determined to, and did, in the spring of 1882, try sowing broadcast with better success, the weeds and grass serving as a mulch to protect the trees. While it is true that tree culture, to secure a successful growth requires different methods and treatment in different sections of the country, and under the varying circumstances as to soil, climate, etc., it is equally true that the law contemplates that the trees, seeds or cuttings should be so placed in the ground as to render practicable whatever method of cultivation the character of the changing seasons may render advisable. It is by no means clear from the evidence in this case that the number of growing trees is such as would meet the requirements of the law, and I do not think there has been or can be such tillage of the ground upon which the seeds have been sown broadcast as would constitute cultivation of trees within the meaning and intent of the law.

Such a course as that pursued by Orr amounts practically to leaving such trees as may start after a broadcast sowing to grow wild, without any care or protection whatever by the entryman, and then, if approved, would allow him to come in and say that he did nothing in the way of protection or cultivation because nature by causing the growth of weeds and grass about and over the trees, furnished an all sufficient protectionin fact, better than could result from any act of his.

This would be trifling with the law, and such a condition of fact would in my judgment furnish that evidence of want of good faith which would warrant the cancellation of an entry so held.

The course indicated has been substantially that pursued by Orr, as shown by the testimony and admitted by himself. Finding no reason for disturbing the decision appealed from, I affirm the same.

SOLDIERS' ADDITIONAL HOMESTEAD.

OWEN MCGRANN.

Certificate of right to make additional entry can issue for only the difference between

the original entry and one hundred and sixty acres.

The original entry being canceled for failure to make final proof, residence and cultivation will be required in case of entry under additional certificate.

Secretary Lamar to Commissioner Sparks, July 10, 1886.

With your letter of August 1, 1885, were transmitted the papers relative to the application of Owen McGrann for an additional homestead claim under the provisions of Section 2306 of the Revised Statutes.

The record shows that, on June 13, 1863, McGrann made a homestead entry, No. 88, of the NW. of the NW. and Lot 7 of Sec. 20, T. 114 N., R. 26 W., Henderson (now Redwood Falls) land district, Minnesota. Said entry embraced 98.50 acres, and was canceled for failure to make final proof within the time prescribed by law. On December 9, 1884, McGrann purchased the NW. 1 of the NW. of said Sec. 20, under the provisions of the second section of the act of Congress approved June 15, 1880 (21 Stat., 237).

It was decided by your office "that as the original entry was for 98.50 acres, a certificate of right could only be issued for 61.50 acres, and the conditions of said certificate would require residence upon and cultivation of land entered thereby." The time of filing said application does not appear in the record, but the affidavit accompanying the same is dated December 15, 1882, and the request of your office to the Adjutant General, U. S. Army, for information, is dated March 15, 1883, and, hence, I assume that the application is within the provision of departmental circular, dated February 13, 1883 (1 L. D., 41).

Section 2306, R. S., provides that "Every person entitled, under the provisions of section twenty-three hundred and four, to enter a homestead, who may have heretofore entered, under the homestead laws, a quantity of land less than one hundred and sixty acres, shall be permitted to enter so much land as when added to the quantity previously entered shall not exceed one hundred and sixty acres." Under the provisions of said act, since the original entry was for 98.50 acres, McGrann is entitled to enter as an additional homestead only 61.50 acres, the difference between the amount of the original entry and one hundred and sixty acres.

It is strenuously insisted by appellant that said Sec. 2306 does not require residence and cultivation upon the tract entered, and that by reason of the purchase of a part of the land embraced in his original entry under said act of June 15, 1880, McGrann complied with the law as to his original entry, and is entitied to a certificate free from conditions. But this contention cannot be maintained.

It is clear that the law contemplates that the entry man shall comply with the requirements of the homestead law as to residence upon and