Hervol's undated letter addressed to the Secretary of the Interior and received on August 7, 1940, is here treated as an informal belated motion for rehearing. In that letter, Hervol stated:

I want to prove to you about my land on "C" No. 050244 that I did establish my residence in January 1935 and lived on it from Jan. 6 until March the 1th. And from June the 10th until November 15 all in 1935, and I returned on January the 8th in 1936 and remained until August 2th which I did not get credit for. And I returned on January 15th 1937 and remained until October 24. The reason my wife and children stayed in Texas was because I had 6 children in school. My home is 30 miles from school and I could not send them from here. I did not farm in Texas as they tried to prove. I have not done any farm work since 1912 because of my health.

We have put every thing in the land we had. Which was 27,000 [2,700?] dollars and I cannot give it up now.

The entire record has again been carefully reviewed. The weight of the evidence produced at the hearing tends to support the contention of the Government that Hervol was not present on the homestead for a least 7 months each year for 3 years. But even if Hervol was actually present on the land during the periods he mentions in his letter, the evidence is clear and he fully admits that his wife and family remained in Texas where he had farmed for some 13 years. His family never lived on the entry; at periodic intervals he returned to the family farm in Texas to help his wife and minor children market the crops; as late as 1937, the third year of his alleged residence on the homestead entry in the State of New Mexico, his automobile bore a license issued by the State of Texas; and he admitted voting in Texas subsequent to filing his entry on the homestead. In short, the evidence fully warrants the conclusion that his home, despite his assertions that it was on his entry, was with his family in Texas.

It has long been uniformly held by this Department that the homestead law contemplates that the entry shall constitute the entryman's home and family homestead. It is manifest that the entryman did not maintain a home on his land to the exclusion of a home elsewhere, as required by the homestead law. The personal presence on an entry of the entryman is not alone sufficient to comply with the requirements of the homestead law when he maintains a family residence elsewhere. Nor is a claim of domiciliary residence consistent with the substantial maintenance of a home elsewhere. Benjamin Chainey, 42 L. D. 510, 511 (1913); Van Gordon v. Ems, 6 L. D. 422 (1887); Spalding v. Colfer, 8 L. D. 615 (1889); Bates v. Bissell, 9 L. D. 546 (1889). The fact that his children were still going to school and therefore made it necessary for his family to remain on his farm in Texas is an understandable, but not a legally sufficient reason for his failure to take them to the land on which he made

October 31, 1940

entry and there establish his familial home in compliance with the homestead law. Cf. Spalding v. Colfer, 8 L. D. 615, 617 (1889).

There are other reasons for denying the motion for rehearing. The Department may in its discretion grant such a motion in the public interest or to correct a substantial injustice or error. But it does not lightly do so. Hervol's motion should be denied for the following reasons:

(1) It does not present any vital or controlling question that was not fully and carefully considered at the time the decision complained of was rendered. Cobb v. Crowther, 46 L. D. 473 (1918); Shields v. McDonald, 18 L. D. 478 (1894); Walk v. Beatty, 26 L. D. 377 (1898).

(2) There is no showing that fair minds might not, from the testimony adduced at the previous hearing, reasonably come to the conclusion reached by the Commissioner of the General Land Office, or that the decision complained of is clearly wrong and against the palpable preponderance of the evidence. Cobb v. Crowther, 46 L. D. 473 (1918); Dickinson v. Capen, 14 L. D. 426 (1892); Guthrie Townsite v. Paine, 13 L. D. 562 (1891); Seitz v. Wallace, 6 L. D. 299 (1887).

(3) The facts Hervol now states in his letter are precisely the contentions he advanced at the previous hearing. No facts are alleged in support of the motion for rehearing that could affect the decision complained of that might not have been presented at the previous hearing and no reasons are given for not presenting any such facts at that time. Van Gordon v. Ems, 6 L. D. 422 (1887); Guthrie Townsite v. Paine, 13 L. D. 562 (1891). Accordingly, Hervol's motion for rehearing is denied.

Denied.

GEORGE I. THORNE

Decided October 31, 1940

FINAL PROOF-AMBIGUITY IN ENTRYMAN'S FINAL PROOF.

Where a homestead entryman's final proof is ambiguous so that it is not clear whether or not he had complied with the homestead law, and where he may have, in fact, fully complied, he will be given an opportunity to make a proper showing as to whether he actually had complied.

HOMESTEAD RESIDENCE-FAILURE TO FILE NOTICE OF ABSENCE FROM THE LAND. The purpose of 43 CFR 166.38, requiring an entryman to file notice at the local land office of the time he departs from and returns to his entry, is to assist the General Land Office in supervising pending homestead entries. Failure to file such notice on taking leave of absence may impose a heavier burden on the entryman in making a convincing showing as to his resi

dence, but it will not, in the ordinary case, forfeit his privilege of taking proper leaves of absence.

HOMESTEAD ENTRY-COMPUTATION OF RESIDENCE-DATE OF ALLOWANCE OF ENTRY. An entryman is under no obligation to establish residence until 6 months after the date his entry is allowed. Hence, where an entryman established residence in August 1932, but his entry was not allowed until May 1933, his residence may properly be counted from the allowance of his entry and he need not be charged with any absences between August 1932 and May 1933.

HOMESTEAD RESIDENCE-MILITARY CREDIT.

An entryman who has served between 90 days and 7 months in the Federal military forces in connection with World War I is entitled to a residence credit by deducting the period of his Federal service from the third residence year.

HOMESTEAD ENTRY-RESIDENCE MAINTENANCE OF A HOME ON THE ENTRY TO THE EXCLUSION OF A HOME ELSEWHERE.

An entryman must establish and maintain his home on his entry to the exclusion of a home elsewhere in order to comply with the homestead law. MENDENHALL, Acting Assistant Secretary:

This is an appeal from a decision of the General Land Office rejecting an entryman's offer of final proof on a second stock-raising homestead entry and ordering the cancelation of his entry. I agree with the decision insofar as it holds the final proof, as it now appears in the record, to be insufficient to merit issuance of a patent. But I think that the ambiguities existing in the final proof testimony with regard to the entryman's residence did not warrant cancelation of the entry and that the General Land Office should instead have required him to make an additional showing in order to clarify those ambiguities.

On August 12, 1932, George I. Thorne filed an application for a second stock-raising homestead entry (Sacramento 027902) under the act of December 29, 1916 (39 Stat. 862). His entry was allowed on May 19, 1933. He submitted final proof on his entry on March 2, 1939, pursuant to a decision of the General Land Office, dated February 7, 1939, reinstating his entry and revoking the decision of the General Land Office, dated December 28, 1938, which had canceled his entry for failure to submit final proof within the 5-year period required by statute (act of June 6, 1912, 37 Stat. 123, 43 U. S. C. secs. 164, 169, 218; 43 CFR 168.1).

Thorne's final proof statement, sworn to before the register of the Sacramento district land office, states that he established residence on the land in August 1932, and that he resided on the land during the following periods:

October 31, 1940

1932-August (?) to November 1;

1933-May 1 to July 15;

September 1 to December 31;

1934 March 1 to August 1;

September 1 to November 1; and about six months each year from February 15, 1935, to March 1939.

He further stated that his absences were "due to the fact that I had been taking care of an adjoining tract of land and had to divide my time between the two places." One of his final proof witnesses stated that Thorne's residence was "practically continuous," listing the latter's residence each year as continuing "all year," while the other final proof witness stated that Thorne had been "absent some of the time," listing the latter's residence as "six months" each year. The estimates by Thorne and his two witnesses as to the value of Thorne's improvements are, respectively, $1,050, $500, and $710. The report of the Division of Investigations states that according to a neighbor of Thorne, Thorne had made the entry his home for over five years. The land is in an isolated area and is rough and mountainous. Thorne has a 1-room habitable house, comfortably furnished, and has made various improvements, estimated by the special agent as being worth $1,200. Thorne stated, also, that he has various household goods and machinery on his other tract of land.

By decision of January 8, 1940, the General Land Office rejected Thorne's final proof and held his entry for cancelation on the ground that the proof showed compliance with the residence requirements of the homestead laws for only 1 residence year and hence did not fully comply with the homestead laws. From this decision Thorne filed his appeal on January 26, 1940, alleging that his testimony either was not understood or was misconstrued when reduced to writing at the Sacramento district land office. He states that when he gave his testimony he presented his record as a soldier in the United States Army, showing that he served about 312 months, and that in addition he then stated that he was on his homestead in 1934 for not less than 6 months from and after February 15, 1934. He avers that since March 2, 1939, when he made his final proof, he resided on the land continuously to September 15, 1939, and that during that period he has, as evidence of his good faith, made about $500 worth of permanent improvements on the homestead.

Under the public land laws and the regulations of this Department an entryman must establish residence within 6 months after the date of his entry. (43 U. S. C. sec. 169; 43 CFR 166.24, 168.1.) Such residence must be for at least 7 months per year since an entryman is entitled to the privilege of absenting himself from the land for 5 months, provided he files notice at the local land office of the time

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he departs from and returns to the land. (43 U. S. C. secs. 164, 231; 43 CFR 166.38, 168.1.) There is nothing in the record to indicate that Thorne, at any time when he absented himself from the land, filed any such notices. This notice requirement, however, should not be inexorably applied. Its purpose is to assist the General Land Office in supervising pending homestead entries. Failure to file such notice on taking leave of absence may impose a heavier burden on the entryman on final proof in making a convincing showing as to his residence. But such failure ought not, in the ordinary case, be held to forfeit the entryman's privilege of taking proper leaves of absence. Consequently, if Thorne actually resided on the land 7 months each year for 3 years, this Department will hold that Thorne fulfilled the residence requirements of the homestead law.

In computing the number of months during which Thorne resided on his entry, it should be noted that he claims a 321⁄2 months' residence credit by virtue of his military service. From a copy of his discharge certificate it appears that Thorne was enlisted in the United States Army on August 3, 1917, and was in the Federal service from August 5, 1917, until he was honorably discharged on November 17, 1917, by reason of dependency. By statute, soldiers who rendered military service for not less than 90 days in the military forces of the United States in connection with World War I are entitled to have the term of their service, not exceeding 2 years, deducted from the 3 years' residence required under the homestead laws. Act of February 25, 1919 (40 Stat. 1161, 43 U. S. C. sec. 272), as amended by act of April 6, 1922 (42 Stat. 491, 43 U. S. C. secs. 272, 272a); see 43 CFR 181.1. Thorne was in the Federal service for 105 days. A soldier whose military service, as above specified, was between 90 days and 7 months must reside on the land for 7 months each year for the first and second years and, during the third year, for as many months as, added to his service, will equal 7 months. 43 CFR 181.2; Mary Elizabeth Toland, 48 L. D. 236 (1921). Thorne is clearly entitled to be credited with 105 days, or 312 months, of residence in fulfillment of the resi dence requirements for his third residence year.

Thorne stated that he established residence on the land in August 1932. But he was under no obligation to establish his residence until 6 months after May 19, 1933, the date his entry was allowed. Alcorn v. Barlow, 26 L. D. 588 (1898); Shook v. Douglas, 26 L. D. 219 (1898); Baker v. Rambo, 23 L. D. 475 (1896); Abbott v. Kelley, 20 L. D. 295 (1895); McNamara v. Orr, 18 L. D. 504, 506 (1894); Fletcher v. Brereton, 14 L. D. 554 (1892).

His residence may therefore properly be counted from May 19, 1933, and he need not be charged with any absences between August 1932 and May 19, 1933. Simple calculation, based on Thorne's state