petition, but the same with the entry papers of Jones and a copy of said decision of your office in reference thereto, are now on file as a part of the record in this case.

It appearing from the foregoing, that when claimant, Adair, made and filed his soldiers' declaratory statement upon which his homestead entry is based, he was residing on a pre-emption claim, on which he made final proof and obtained cash entry certificate nearly five months thereafter, the first question to be determined is, whether his entry was illegal in its inception (the filing of his soldiers' declaratory statement being the inception thereof) and should for that reason, in the face of the adverse claim of Jones, be canceled.

It is now well settled by departmental decisions, that a person can not legally acquire a claim to one tract of land as a pre-emptor and to another tract as a homestead entryman at one and the same time. See cases of Murphy v. Deshane (6 L. D., 831); Krichbaum v. Perry (5 L. D., 403); Collar v. Collar (4 L. D., 26); Austin v. Norin (ib., 461).

The rulings of this Department in the cases cited are predicated chiefly upon the well grounded theory that as both the pre-emption law and homestead law require bona fide residence on the part of the claimant thereunder, it is impossible for one person to maintain such residence under each, or, in other words, two residences at the same time.

While it does not appear from the reported decisions that the precise question here presented, has ever been directly passed upon by the Department, yet the general principles which should govern all cases of this, and a similar character, in which it is sought by a person to hold two tracts of land under the settlement laws, at one and the same time, are, I think, pretty well established.

By sections 2304 to 2309 inclusive, of the Revised Statutes, certain provisions are made granting special privileges to soldiers and sailors, their widows and minor children. Among these, is the privilege of se curing the right to enter under the homestead law, a particular tract of land, by filing a declaratory statement, either in person or by an agent, describing the land and setting forth that declarant has located the same and intends to enter it. And it is further provided that such homestead settler shall be allowed six months after locating his claim and filing such declaratory statement, within which to commence his settlement and improvements.

In the case of Stephens v. Ray (5 L. D., 133), the question arose as to the effect of a soldiers' declaratory statement when filed, and it was held that such statement (assuming it to be in all respects legal) will hold the land described therein for a period of six months for the benefit of the declarant, and his rights, if he enter at any time within six months, relate back to the date of his filing; that, in other words, such filing is an exercise of the homestead privilege.

A soldiers' declaratory statement, duly filed and in all respects legal,

being, as thus shown, an exercise of the homestead privilege, I am unable to agree that a person, by making such filing while residing upon and claiming a different tract, upon which he afterwards makes proof aud secures title under the pre-emption law, may thereby hold, during the time of his residence on such pre-emption claim, as against other and intervening bona fide settlers, the land covered by the filing thus made. To so construe the law would be, in effect, to allow the holding of two tracts of land, preparatory to securing title thereto, by one person at one and the same time under the provisions of two different statutes, each requiring, among other things, a bona fide settlement and residence on the land claimed thereunder, in order to secure and perfect such title.

I do not think that Congress, in the enactment of the statute under consideration, ever contemplated that such should be its legitimate interpretation.

I must, therefore, hold that the soldiers' declaratory statement filed by Adair was illegal, and that the entry based thereon must, in the presence of the adverse claim of Jones, be canceled.

It may also be stated that, in order to make secure the right initiated by a soldiers' declaratory statement, settlement and improvement, as well as entry, must follow the filing within six months. Charles Hotaling (3 L. D., 17); Snyder v. Ellison (5 L. D., 353).

From the allegations in the said petition of Jones, it would seem that Adair had not made settlement on his homestead within six months from the date of his said filing, for if said allegations be true, he was still residing on his pre-emption claim in April, 1887. But the present disposition of this case renders it unnecessary to order a hearing to determine the facts in reference thereto. Adair's entry being illegal in its inception, must, for that reason, be canceled.

The decision of your office is therefore affirmed. You will take such action as may be proper, in view of the foregoing, in reference to the entry of Jones.

FINAL PROOF PROCEEDINGS-PROTEST-EQUITABLE ADJUDICATION.

F. C. ROBINSON.

An entry allowed on proof submitted after due notice and without protest, should not be canceled because the evidence as to residence is found defective, but suspended, and supplemental proof required.

It will be presumed that no protest was filed against the submission of final proof, if such protest is not in the record.

The failure of the claimant to make his own proof on the day fixed may be cured by the action of the Board of Equitable Adjudication, where his witnesses appeared and testified on the day and before the officer as advertised.

First Assistant Secretary Muldrow to Commissioner Stockslager, February 14, 1889.

I have considered the appeal of Francis C. Robinson from the decis ion of your office, dated November 13, 1886, holding his final proof in

sufficient and requiring new publication of his intention to make final proof in support of his location No. 54, " R. & R.," of the NE. 4 of Sec. 28, T. 132 N., R. 58 W., made February 9, 1884, at the Fargo land office, in the Territory of Dakota.

The record shows that said Robinson filed his pre-emption declaratory statement, for said land on October 4, 1883, alleging settlement thereon June 1, 1883. On May 5, 1884, the register gave notice, by publication, of the claimant's intention to make final proof on June 20th, same year, and that the testimony of his witnesses would be taken before Charles D. Austin, clerk of the district court at Lisbon, Ransom county, in said Territory on June 19, 1884.

The testimony of the witnesses was taken on the day, and before the officer, as advertised, but the testimony of the claimant was taken before the register of said office on July 9, 1884, and location of said tract was made with military bought land warrant No. 26,208, on the same day.

The testimony of the claimant shows that the land was subject to entry; that he was qualified to make entry under the pre-emption laws; that he first settled on said land on June 1, 1883, and established his residence on the land on August 12, 1883; that his residence on the land has been continuous "except during four months last winter," and that his improvements are worth from $225 to $250.

The testimony of the witnesses confirm the allegations of the claimant, as to his qualifications, settlement, and improvement, but they state that the claimant first established his residence on his claim "September, 1883," and, in answer to the sixth question, namely: "Has his residence been continuous ?" state, "It has except."

On November 13, 1886, your office found that "the testimony submitted does not show continuous residence on the land for six months immediately preceding date of making proof," and held said location for cancellation. The claimant was allowed sixty days within which to appeal from said decision, or show cause why his location should not be canceled.

Your office further held that, as the testimony of the claimant and final affidavit were not made on the day advertised for making final proof, he must make republication of notice, and that "the proof submitted will be considered, if no adverse claim nor protest is filed against said location on the day and before the officers advertised in the new notice, which fact should be certified by said officers." The claimant was allowed ninety days within which to make republication.

The claimant, in his appeal, alleges that it was error in your office to hold said entry "for cancellation for the reason the testimony does not show continuous residence on the land for six months immediately preceding date of final proof,' appellant insisting that six months' residence immediately preceding date of making proof is not necessary, and further that the testimony submitted shows a compliance as to residence with the land laws of the United States."

The action of your office, holding said location for cancellation, was irregular. If the notice hall been duly given, and no protest had been filed—which will be presumed, if it is not in the record-then, supplemental proof should have been called for to supply the defective proof as to residence, and, in the mean time, the entry should have been suspended. But no notice is taken in the appeal of the order of your office, requiring new publication. If the final proof had satisfactorily shown that the claimant had complied with the requirements of the law and the departmental regulations, the failure of the claimant to make his proof on the day advertised could have been cured by the action of the Board of Equitable Adjudication, since his witnesses gave their testimony on the day and before the officer as advertised. Judith M. Clarke (7 L. D., 485). But the failure of the claimant to give any excuse for his absence for four months, renders it necessary for him to make new publication and furnish supplementary proof, satisfactorily explaining the causes of his absence from said land. If no protest be filed, or objection made, and satisfactory supplementary proof as to residence be furnished, said entry will be approved by your office and passed to patent. If, however, a protest is filed, then a hearing should be duly ordered, in accordance with the rules of practice.

The claimant should be allowed ninety days to comply with the terms of this decision.

The decision of your office is modified accordingly.

FINAL PROOF PROCEEDINGS-REPUBLICATION.

AMOS E. SMITH.

Republication of notice will be required where the name of one of the witnesses was not properly designated in the published notice; but after such republication the proof may be accepted as made, in the absence of protest.

First Assistant Secretary Muldrow to Commissioner Stockslager, February 14, 1889.

I have considered the appeal of Amos E. Smith from the decision of your office, dated February 15, 1887, requiring republication and new proof as to one witness, whose name was not properly designated in the published notice, also requiring supplemental proof as to residence in support of his pre-emption cash entry, No. 6772, of the SW. 4 of Sec. 33, T. 126 N., R. 59 W., Watertown, Dakota Territory, land office.

The record shows that the register, on June 28, 1884, gave notice by publication of the claimant's intention to make final proof in support of his claim before the Judge of Probate at Andover, Dakota Territory, on August 19, same year, naming "J. S. Keeson," as one of his witnesses. The final proof was made on the day and before the officer as advertised, but the name of one of the witnesses is signed "J. S. Ferson."

The proof shows that the claimant was duly qualified to make entry under the pre-emption laws; that he complied with the requirements of the pre-emption laws and the departmental regulations relative to settlement and improvement of said land; that he established his actual residence on his claim May 19, 1883, and that his residence has been continuous, except when away at work in the Minnesota pineries for four months in the winter of 1883 and 1884.

The local officers accepted the final proof and issued final certificate for the land.

The error in the published notice will require a new publication, giving the correct name of the witness J. S. Ferson, and, if no protest be filed on or before the day designated in the republished notice, the proof already submitted may be accepted and the entry passed to patent. If, however, protest be filed, or any valid objection be made to said entry a hearing should be ordered to determine the facts in the premises.

The decision of your office is modified accordingly.

HOMESTEAD ENTRY-APPROXIMATION-ADVERSE CLAIMANT.

HENRY C. TINGLEY.

A homestead entry embracing tracts of land in two or more quarter sections, must approximate one hundred and sixty acres as nearly as practicable, without requiring a division of the smallest legal sub-division included therein. Though a homestead entry allowed in violation of this rule segregates the land covered thereby, it is subject to attack, and a preference right to enter the lands finally excluded therefrom may be awarded to the adverse claimant.

First Assistant Secretary Muldrow to Commissioner Stockslager, February 14, 1889.

In the matter of the application of Henry C. Tingley to make homestead entry for lot 5 Sec. 34 T. 9 N., R. 13 W., Grand Island land district. Nebraska, appealed from your decision of December 12, 1887, denying said application, the record discloses the following facts:

August 24, 1880, John Hibberd made homestead entry for E and S. W. of the S. E. and lots 4 and 5 all in the above described section 34. The lands described contain 175.40 acres, seventeen and a half acres of which are in said lot 5. At the time of entry Hibberd paid $19.25 for the excess of 15.40 acres over one hundred and sixty acres. Juve 25, 1887, he made final homestead proof, from which it appears that he established his residence on said lands March 10, 1881, and has resided thereon continuously since that time. August 27, 1887, Tingley applied to make homestead entry for said lot 5 which being denied by the local officers he filed an appeal the same day. November 9, following, and while this appeal was still pending before your office, Hibberd paid the receiver the usual fees and obtained from the register his