NE of the SW. † Sec. 6, T. 14 S. R. 61 W., Pueblo land district Colorado.

November 30, 1887, your office hell Jackson's entry for cancellation "on the ground of his having made a prior filing." From this decision Jackson appeals and asks that the matter be submitted to the Board of Equitable Adjudication and his entry allowed to stand. As authority for this action he cites the case of Thomas Ervine (4 L. D., 420).

At the time of making proof, in answer to the question-" Have you ever made a pre-emption filing or entry for land other than that you now seek to enter?" He answered-"Yes, I once made a pre-emption filing for land which I believe was the WSW. section 28, and W. § NW. section 33, T. 11 S., R. 64 W. This was about nine or ten years ago. I relinquished the said filing believing that I had, if released, the right to make a second and legal filing. I made the said relinquishment and the filing in good faith."

On appeal appellant states,

That he filed on the first tract with the bona fide intention of making the land embraced therein his home, built a comfortable house on the same and endeavored to obtain water for domestic use by digging a well, but the effort proved fruitless; that he was unable to obtain water for domestic use or sufficient for stock purposes; that his house soon afterwards accidentally caught fire and was entirely destroyed. Whereupon he became discouraged and decided to abandon the claim; and having informed the register of the laud office of all the circumstances he was advised that he could legally file again.

He further states that he never derived any benefit from his first filing. Appellant, so far as can be discovered from the record, appears to have acted in this matter in good faith, and to have dealt openly and frankly with the local land officers. His excuse for abandoning his former claim was to them satisfactory. He paid for the described tract of land April 15, 1885, more than two and a half years before his entry was suspended and now over four years ago. Under the facts and cir. cumstances shown by the record I think the entry should be permitted to stand. You will therefore please to submit it, as asked, to the Board of Equitable Adjudication for final action.

The decision of your office is modified accordingly.

PRACTICE-AFFIDAVIT OF CONTEST-AMENDMENT.
FARMER v. MORELAND ET AL.

The local officers are justified in rejecting an affidavit of contest if it is not corroborated as required by the rules of practice.

The privilege of amending a defective affidavit of contest cannot be accorded in the presence of an intervening adverse right.

First Assistant Secretary Chandler to Commissioner Stockslager, May 4,

1889.

I have considered the case of Charles D. Farmer v. Jesse M. Moreland and Narcissus E. Bridges, on appeal by the former from your office

decision of November 11, 1887, holding his application to contest the homestead entry of Moreland for the SE. of Sec. 24, T. 30 S., R. 42 W., Garden City, Kansas land district, subject to the final disposition of Bridge's contest against the same entry.

Moreland made homestead entry for said land January 15, 1887. On July 19, 1887, Farmer presented at the local office his affidavit of contest against said entry alleging that the said "Moreland has wholly abandoned said tract; that he has never established his residence thereon since making said entry; that said tract is not settled upon and cultivated by said party as required by law and said default now exists," This affidavit was marked "presented and rejected this 19th day of July, 1887, because affidavit of contest is not corroborated 30 days for appeal. (Signed) C. F. M. Niles, Reg."

On July 27, Bridges presented her affidavit of contest against said entry which affidavit was received by the local officers. On August 12, Farmer again presented his affidavit with the corroborating affidavit of E. L. Muir, sworn to August 10, on the back thereof. His application was refused because of the contest of Bridges, but the register offered to accept this affidavit as a second contest, subject to the final determination of Bridges' contest. This the applicant refused and appealed. In your office the decision of the local officers was affirmed.

It is urged on the part of the apellant that he should have been given an opportunity to amend his affidavit and that the local officers had not authority to receive a second contest within the thirty days allowed him for appeal. When Farmer's affidavit was presented it was not in the form prescribed by the rules and the local officers were justified in rejecting it. If Farmer had then asked for leave to amend his affidavit a question materially different from the one now here would have been presented. Even if Farmer's affidavit had been accepted the local officers might have received a second contest and held it subject to the final determination of the prior. This being true there can be no doubt about their authority to receive a second affidavit within the time allowed for Farmer to appeal and hold it subject to the exercise of his right of appeal and to the determination of his appeal if he exercised that right. Farmer did not however, appeal from the decision rejecting his affidavit because it was not corroborated but acknowledged the correctness of that decision and sought to remedy the defect in his affidavit. This, however, was not done until after Bridges' contest affi davit had been received against the acceptance of which, there was at the time of its presentation, no barrier. By failing to corroborate his affidavit as required by rule 3, he to all intents and purposes abandoned the contest as against the claim of Bridges. Bridges' rights having intervened between the time of the filing of the affidavit in the first instance, and the time of Farmer's application to amend the same, it would be manifest injustice to Bridges to sustain Farmer's application

to amend his original affidavit. Under such circumstances, Farmer is in no position to insist upon the same.

After a careful consideration of this case I concur in the conclusion reached in your office that the action of the local officers refusing to accept Farmer's affidavit, as amended, as prior to Bridges' contest, was in accordance with the rules applicable to such cases and the decision appealed from is therefore affirmed.

CHITWOOD v. HICKOK.

Motion for the review of departmental decision rendered August 31, 1888 (7 L. D., 277), denied by Secretary Noble, May 4, 1889.

ALABAMA LANDS-ACTS OF MAY 14, 1880, AND MARCH 3, 1883. E. S. NEWMAN.

A homestead entry on mineral land initiated by settlement prior to the passage of the act of March 3, 1883, though not protected by an entry of record at such date, is within the intent of said act, and may be passed to patent thereunder.

The fact that homestead settlement is made upon land covered by the entry of another will not deprive the settler of the benefit of the act of May 14, 1880, where good faith is apparent and no adverse claim exists.

The case of James A. Jones overruled.

Secretary Noble to Commissioner Stockslager, May 4, 1889.

By decision of May 18, 1888, your office held for cancellation the homestead entry made by E. S. Newman, March 10, 1887, for the N. of NW. and NW. of NE. Sec. 34, T. 15,S., R. 1 W., Montgomery district, Alabama, predicating said action upon the act of March 3, 1883 (22 Stat., 487), entitled, "An act to exclude the public lands in Alabama from the operation of the laws relating to mineral lands"—which act is as follows:

That within the State of Alabama all publi: lands, whether mineral or otherwise, shall be subject to disposal only as agricultural lands: Provided, however, that all lands which have heretofore been reported to the General Land Office as containing coal and iron shall first be offered at public sale: And provided further, That any bona fide entry under the provisions of the homestead law of lands within said State heretofore made may be patented without reference to an act approved May 10, 1872, entitled "An act to promote the development of the mining resources of the United States," in cases where the persons making application for such patents have in all other respects complied with the homestead law relating thereto.

It appears, as stated in your office decision, that said lands embraced in Newman's entry had been reported as "iron limonite," and had not been "offered at public sale," as required by the first proviso of said

act.

Newman appeals to this Department from said decision, and accompanies said appeal with his affidavit, to the effect, that, August 29, 1882, one T. H. Strother, made homestead entry, No. 11,992, for said land, and during said year he (Ne wman) purchased from Strother his improvements on said land and procured his relinquishment of his entry thereon, for the sum of $350; that thereupon, he (Newman) took possession of said land, and has ever since resided thereou with his family, consisting of a wife and seven children, and has continued the improvement of said land and raised crops thereon each year for "six successive years," but he did not file said relinquishment of Strother or make entry of said land until March 10, 1887, when the Land Office sent Strother notice to make proof, because he (Newman) "was told that he must not file his application until said notice was received by Strother;" that said land is situated on the west side of Red Mountain range, where "it is well known all over that country there is no iron or mineral" of any kind and where "iron buyers refuse to buy any land giving as their reason, that there is no iron on that side of the mountain," and that said land (embraced in his entry) in fact contains no mineral, but is agricultural land. He asks in conclusion that if his entry can not be otherwise sustained, he be allowed "to show by civil engineers, that said land contains no mineral." This affidavit of Newman is corroborated by that of said T. H. Strother, the original entryman referred to therein.

The last proviso of the act of March 3, 1883, provides for the patenting of "any bona fide entry under the provisions of the homestead law of lands" in Alabama, which, prior to said act, had been subject to entry only under the mineral laws-in other words, it validates, by authorizing the issuance of patents thereon, prior homestead entries, which before the passage of said act were invalid because made on mineral lands.

At the date of the passage of the act of March 3, 1883, a homestead claim to land might under section three of the act of May 14, 1880 (21 Stat., 140), be initiated by settlement as well as by formal application and entry of record under section 2289, et seq., of the Revised Statutes. Tobias Beckner (6 L. D., 134); Prestina B. Howard (8 L. D., 286). Said section of the act of May 14, 1880, is as follows:

That any settler who has settled, or who shall hereafter settle, on any of the public lands of the United States, whether surveyed or unsurveyed, with the intention of claiming the same under the homestead laws, shall be allowed the same time to file his homestead application and perfect his original entry . . as is

now allowed to settlers under the pre-emption laws to put their claims on record, and his right shall relate back to the date of settlement, the same as if he settled under the pre-emption laws.

Two leading questions are presented in this case:

1. Is a homestead right or entry initiated by settlement under the above section of the act of May 14, 1880, embraced within the meaning of the proviso of the act of March 3, 1883, authorizing the issuance of 16184-VOL 8--29

patents on "bona fide homestead entries" of mineral lands in Alabama? 2. If so, do Newman's settlement and entry, under the facts disclosed by the record, fall within the operation of said act of 1880 ?

As to the first of these questions, it is to be observed, that, said proviso of the act of 1883 operates upon homestead entries on lands not subject to such entry, but which entries are otherwise, in the language of said proviso, "bona fide entries under the provisions of the homestead law." The act of 1880 was a part of the "provisions of the homestead law," when the act of 1883 became a law. The act of 1880 speaks of the settlement thereunder as the "original entry," and provides, that the right acquired by such settlement "shall relate back to the date of settlement," and under said act, "the settlement" is equiv alent to the entry of record under the general homestead law, and is practically, if not technically, an "entry." A homestead entry on mineral lands initiated by settlement under the act of 1880, falls within the scope and reason, if not strictly within the letter, of the act of 1883, and I see no reason why such an entry, if otherwise within the provision of the latter act, should not be passed to patent thereunder.

It being determined, that an entry under section three of the act of 1880 falls within the operation of the last proviso of the act of 1883, the second question stated above presents itself: Are Newman's settlement and entry, under the facts disclosed by the record, covered by said section three of the act of 1880?

That Newman settled upon the land in good faith, "with the intention of claiming the same under the homestead law," is clear from his long continued occupancy of it with his family, as a home, and his improvements and cultivation, and appears inferentially from that part of his affidavit giving the cause of his delay in making homestead entry. The limitation in the statute as to the time of filing application, is intended (as in pre-emption cases) for the protection of the settler against intervening adverse claims, and is not enforced by the government against the settler in a case like the present, where there is no such adverse claim and nothing to impeach the settler's good faith.

But the act of 1880 is for the "relief of settlers on public lands" of the United States, and it appears, that at the date of Newman's settlement in 1882 and up to 1887, when he filed Strother's relinquishment, the land was segregated from the public domain by the uncanceled entry of said Strother, and therefore was not, strictly speaking, "public land of the United States." The general rule is well settled, "that, while an entry stands uncanceled upon the record, settlers upon the land covered thereby, acquire no rights as against the record entryman or the United States" Geer v. Farrington (4 L. D., 410). "The reason of this rule undoubtedly lies in the fact, that it is unwise and illegal to allow one party to initiate settlement rights to a tract of land while the same is in the possession and under the control of another

.; for to allow a claim to be initiated" under such circumstances "would be (in