UNITED STATES v. JOHN C. BROWN

Decided September 4, 1940

Motion for Rehearing January 30, 1941

HOMESTEAD ENTRY-QUALIFICATIONS-INTEREST OF AN OWNER IN COMMON. In determining the acreage owned by an owner of an undivided interest in common for the purpose of ascertaining whether he was disqualified to make homestead entry because of his ownership of more than 160 acres in violation of the act of March 3, 1891 (26 Stat. 1095, 1098, Rev. Stat. sec. 2289, 43 U. S. C. sec. 161), he should be credited with the number of acres proportionate to his undivided interest since it will be presumed that upon partition he would be entitled to that number of acres. HOMESTEAD ENTRY-TIME OF DETERMINING QUALIFICATIONS. Where an entryman makes a second stock-raising entry, his qualifications must be determined, not as of the date when he made his first entry. but as of the date of his second entry, and it is therefore no defense to contest proceedings, instituted on the ground that he was disqualified by ownership of more than 160 acres of land in violation of the act of March 3, 1891 (26 Stat. 1095, 1098, Rev. Stat. sec. 2289, 43 U. S. C. sec. 161), that he was not so disqualified at the time he made his first entry. HOMESTEAD ENTRY-QUALIFICATIONS-LATER DISPOSAL OF EXCESS LAND HOLDINGS. Where an entryman, at the time of making a second stock-raising homestead entry, is disqualified by ownership of more than 160 acres of land in violation of the act of March 3, 1891 (26 Stat. 1095, 1098, Rev. Stat. sec. 2289, 43 U. S. C. sec. 161), his disqualification is not removed by later disposal of his land holdings.

HOMESTEAD ENTRY-QUALIFICATIONS-OWNERSHIP OF MORE THAN 160 ACRES. Neither the entryman's good faith nor the fact that the Department might have been aware of his other landholdings at the time he made his homestead entry are material on the issue whether he was disqualified by virtue of ownership of more than 160 acres of land in violation of the act of March 3, 1891 (26 Stat. 1095, 1098, Rev. Stat. sec. 2289, 43 U. S. C. sec. 161).

WITHDRAWAL ORDER-QUALIFICATIONS OF HOMESTEAD ENTRYMAN.

Where a homestead entryman was legally disqualified from acquiring any right under the homestead law, he could not, upon removal of his disqualifications, acquire an interest in lands which had, in the interim, been withdrawn from entry by a withdrawal order. PRACTICE-APPEALS BY THE GOVERNMENT.

The rules governing proceedings upon special agents' reports expressly provide for appeals by the Division of Investigations from decisions of the Commissioner of the General Land Office (43 CFR 222.13).

WORDS AND PHRASES.

The word "unappropriated" in Executive order of withdrawal (No. 6910) of November 26, 1934, can hardly be applied to land other than that which has not been lawfully appropriated and a homestead entry allowed on misrepresentation of the entryman that he was not the proprietor of more than 160 acres can in no sense be considered a lawful appropriation.

WITHDRAWAL VALID EXISTING RIGHTS.

The exception in the withdrawal of November 26, 1934, of "existing valid rights" cannot reasonably be held to apply to entries void ab initio.

PRACTICE-RIGHT TO HEARING.

If an entryman in his answer to charges admits all that is essential to show that his entry is invalid and fails to show that the charges are immaterial, there is no issue of fact that requires a hearing.

CHAPMAN, Assistant Secretary:

This is an appeal by the United States, acting through its special agent in charge, from the decision of the General Land Office, dated August 17, 1939, dismissing adverse proceedings, contest 7623, which had been instituted on May 25, 1939, against John C. Brown's second stock-raising homestead entry, Salt Lake 049885, for the S2 sec. 25, SE14 sec. 26, NE1⁄44 sec. 35, T. 4 S., R. 8 W., Salt Lake meridian, Utah, on the following charges:

That the entryman was not qualified to make homestead entry on April 15, 1931, the date he filed his application therefor, is not now and has not been since date qualified to make entry, for the reason that he was on that date, and is now the owner and proprietor of more than 160 acres of land in the United States, to wit, five tracts of land in Twps. 4 and 6 S., R. 8 W., S. L. M., 259.56 acres.

The following facts appear from the record: Brown's first entry on the land embraced in his application had been made in 1917 and was allowed in 1920. Upon the death of his father, he received, in 1924, interests in various parcels of land as his proportionate share of his father's ranch. In 1925, proof was submitted on his entry and a final certificate issued, but the entry was canceled for failure to comply with residence and improvement requirements. United States v. Brown, "C", November 4, 1930, Salt Lake 019176; affirmed March 3, 1931, A-15539.

Brown thereupon made this second stock-raising homestead entry on April 15, 1931, which was allowed on April 29, 1932, pursuant to departmental decision of March 3, 1932, A-16218. Final proof was submitted on May 29, 1937, but action thereon was withheld at the request of the special agent in charge pending field investigation and report. On December 16 and 22, 1937, Brown conveyed to the Brown Livestock Co. the interests in land which he had inherited from his father. These adverse proceedings were then instituted against Brown's entry on May 25, 1939.

On July 1, 1939, Brown filed an answer to the charge and a motion for reconsideration. In his answer Brown denied the allegation of the charge and requested a hearing. In support of his motion for reconsideration he stated that he had taken the entry in good faith; that at the time he filed his original entry in 1917 he owned only

September 4, 1940

9 acres of land; that this homestead entry adjoins the Brown ranch, part of which he had inherited in 1924; that the Department at the time he made his second entry was "fully advised" of his interests in the land he inherited; that on December 16 and 22, 1937, he had deeded his interests in the land he had inherited to the Brown Livestock Co., which had been formed to take over his and his brothers' interests in the Brown ranch and other lands and that he had received stock in the corporation; that any defect there may have been in his entry or any disqualification at the time his application was filed was cured when he disposed of his land holdings; that he had acted in good faith at all times, had made an honest effort to perfect his entry, had met the required residence and improvement requirements on his second entry and had believed he had fully complied with the law; and that this homestead is necessary to support his livestock operations. On August 17, 1939, the General Land Office dismissed the adverse proceedings on the following ground:

* since there is no other adverse charge against the entry except that of disqualification charged in office decision of May 25, 1939, and since the disqualification of the entryman has been removed and the Department has frequently held that it will not allow its rules to stand in the way of substantial justice being administered, and as it how appears from the facts that the natural equities are towards the entryman who has shown by his proof that he fully complied with the requirements of the law, it is deemed proper to now dismiss the adverse proceedings and accept the proof as satisfactory, subject to confirmation by the Board of Equitable Adjudication because it was submitted after the expiration of the statutory period.

The assumption implicit in the decision of the General Land Office that the entryman is disqualified solely by any rules of the Department is erroneous. The act of December 29, 1916 (39 Stat. 862, 43 U. S. Code, sec. 291), under which Brown made his entry, confers rights only on persons "qualified to make entry under the homestead laws of the United States." This provision incorporates the provisions of the act of March 3, 1891 (26 Stat. 1095, 1098, Rev. Stat. sec. 2289, 43 U. S. C. sec. 161), to the effect that "no person who is the proprietor of more than 160 acres of land in any State or Territory shall acquire any right under the homestead law." See Charles Makela, 46 L. D. 509, 510 (1918); Instructions of September 22, 1922, 49 L. D. 308, 309 (1922). Furthermore, since Brown's qualifications must meet statutory specifications, neither Brown's good faith nor the fact that this Department might have been aware of his other landholdings at the time he made his second stock-raising homestead entry can be material on the issue whether he was disqualified by virtue of ownership of more than 160 acres of land.

From 1924 until 1937, according to the record, Brown was the owner of various interests in land. These interests consisted of full

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fee ownership in four tracts aggregating 162.56 acres and an undivided one-seventh fee interest in a 680-acre tract. Since Brown would have been entitled, in event of a partition of the latter tract, to one-seventh of 680 acres, or about 97 acres plus, we must consider Brown not as the owner of merely 162.56 acres but as the owner of 259.56 acres. Heirs of DeWolf v. Moore, 37 L. D. 110, 112 (1908); Thomas H. B. Glaspie, 53 I. D. 577 (1932). Consequently the rule of approximation cannot be utilized to exempt Brown from the operation of the act of March 3, 1891 (26 Stat. 1095, 1098, Rev. Stat. sec. 2289, 43 U. S. C. sec. 161). See Amidon v. Hegdale, 39 L. D. 131 (1910); Kermode v. Dankwardt, 42 L. D. 557 (1913); Roy Axtell, 49 L. D. 647 (1923).

The statutory provisions are explicit and mandatory that no right may be "acquired" under the act of December 29, 1916, unless the person was "qualified to make entry under the homestead laws of the United States." It is clear that his qualifications must be shown as of the date of entry. Mathison v. Colquhoun, 36 L. D. 82 (1907); Jones v. Briggs, 39 L. D. 189, 190 (1910); Hattie Fisher Hall, 43 L. D. 471 (1914); Alfred R. Thomas, 46 L. D. 290 (1918); Lucinda Gibson et al., 45 L. D. 219, 223 (1916); Cf. Arthur J. Abbott, 34 L. D. 502 (1906). But since Brown's first entry was canceled, his qualifications to "acquire" any rights on the lands embraced within his appli cation must be determined, not as of 1917 when he made his first entry, but as of April 15, 1931, when he made his second stock-raising homestead entry. Cf. Mast v. Kuhn, 44 L. D. 72 (1915). Since he was the owner of more than 160 acres at that time, it would seem to follow that he could acquire no rights by his entry. Brown, however, contends: "any defect in my entry or any disqualification at the time my application was filed was cured when my land holdings were disposed of." But that contention is contrary to the express language of the statutes and is without merit. He was unquestionably disqualified at the time of his entry and the fact that he later disposed of his holdings would not operate to cure his disqualification at the time of his entry. Siestreem v. Korn, 43 L. D. 200 (1914); Vance v. Skeen, 44 L. D. 52, 53 (1915). Cf. Auker v. Young, 37 L. D. 176 (1908); Jones v. Burch, 39 L. D. 418 (1910). The purpose of the statutory restriction obviously was to prevent the acquisition of rights in public lands by persons already owning land in excess of 160 acres. If such persons could, as Brown contends, make entry on public lands and later remove their disqualifications merely by selling their prior landholdings, the purpose of the statute would clearly be frustrated. But even if Brown's contention were the law, it could not avail him. Until December 1937, when he disposed of his holdings, Brown could not have acquired any right to the lands em

September 4, 1940

braced in his application. Shepherd v. Fast, 16 L. D. 267, 269 (1893). Until that time, however, the latter lands were, in legal contemplation, "vacant, unreserved and unappropriated public land" within the meaning of the First General Order of Withdrawal (Exec. Order 6910, November 26, 1934, 43 C. F. R. 297.12). Consequently any rights Brown might allege he acquired in December 1937 could not, because of the Withdrawal Order, become effective. George Herriott et al., 10 L. D. 513 (1890); Siestreem v. Korn, 43 L. D. 200 (1914); Vance v. Skeen, 44 L. D. 52, 53 (1915). Cf. Jones v. Burch, 39 L. D. 418 (1910). No equities which may exist in this case can alter the mandatory effect of the statutory prohibitions and the Withdrawal Order.

The decision of the General Land Office dismissing the contest proceedings was erroneous and therefore is herewith reversed with directions to reinstate the adverse proceedings.

MOTION FOR REHEARING

Reversed.

John C. Brown has filed a motion for rehearing of departmental decision of September 4, 1940, which reversed the decision of the Commissioner of the General Land Office dismissing adverse proceedings brought against his second stockraising homestead entry, Salt Lake City, 049885, of certain lands, and directed reinstatement of the proceedings.

It was charged in the proceedings:

That the entryman was not qualified to make homestead entry on April 15, 1931, the date he filed his application therefor, is not now and has not been since date qualified to make entry, for the reason that he was on that date, and is now the owner and proprietor of more than 160 acres of land in the United States, to wit, five tracts of land in Twps. 4 and 6 S., R. 8 W., S. L. M., 259.56 acres.

The decision of the Department was on appeal by the Division of Investigations assigning error of law. As set forth more particularly in the decision of the Department, the first entry of Brown was canceled in consequence of a final decision of the Department holding, after full hearing, that he had not complied with the residence and improvement requirements of the applicable homestead acts. Brown in answer to the above-quoted charge denied the allegations of contest in general terms. Nevertheless, in his statement made a part thereof and intended to show that the charges were immaterial, he admitted that he acquired the land referred to in the charge by inheritance from his father, but in December 1937 he conveyed such land by deed to the Brown Livestock Co. for certain stock of the company.

He contends that any disqualification to make entry or any defect therein when the entry was made was cured when he disposed of such lands; that the Department was aware of his land holdings when his second entry was allowed.