and the local officers were justified in refusing to allow Erskins to make entry according to his application.

Violett's entries being, according to the records of your office, invalid and illegal, are hereby held for cancellation and you are directed to give him notice that he will be allowed ninety days from service of such notice within which to show cause why said entries should not be canceled. If he shall, within the time specified, present anything in support of said entries, you will consider the same and determine his rights thereunder. If nothing shall be submitted by the cash entryman you will at the expiration of said period, cancel said cash entries. Erskins' application to make homestead entry should be held subject to the final disposition of Violett's entries and if those entries be finally canceled, that application should be allowed unless something not presented by the record now before me, prevents such action. The decision appealed from is accordingly modified.

MINING CLAIM-IRREGULAR PROOF.

INSTRUCTIONS.

Non-compliance with paragraph 5, circular of Decem ber 14, 1885, may be waived, if the proof is substantially in accordance with prior regulations. If such proof does not, in some form, show the requisite work or expenditure the discrepancy may be supplied by supplemental affidavit.

First Assistant Secretary Chandler to Commissioner Stockslager, May 21, 1889.

I have considered the matter submitted with your letter of May 7, 1889, relative to the proof in certain mining claims now pending in your office.

If the proof in these cases is substantially in accordance with the mining regulations existing prior to the issuance of the circulars of December 14, 1885, and March 24, 1887, and shows "the facts" constituting compliance with such regulations, I can see no objection to the issuance of patent thereon. If such proof however, does not in some form show the requisite work or expenditure, the discrepancy may be supplied by supplemental affidavit showing that due compliance with the law in such matter had been observed at the time of applica tion.

With the modifications indicated the course suggested in your letter meets the approval of the Department.

Commissioner Stockslager to Secretary Noble, May 7, 1889.

I have the honor to make the following statement, and to ask that I may be instructed in the matter therein referred to.

This office has now reached for examination, in the regular order, ex parte mineral entries which were made in December, 1886. As such examination proceeds, it is found that the registers have to a great extent ignored the instructions contained in paragraph 5, circular "N" of this office approved December 14, 1885 * (circular, in other respects only, modified by circular "N" approved March 24, 1887*), copies herewith enclosed.

In about twenty per cent of the cases examined the "satisfactory preliminary showing of work or expenditure" required in said circular has not been made.

It is purposed by this office to call the attention of the local officers to their dereliction in this matter and to direct that a more strict compliance with said circular instructions approved March 24, 1887, be ob served by them in the future.

As to the cases (entries) now in this office in which the evidence referred to is wanting:

Where the applicant has made a sworn statement, see paragraph 31, of the mining circular, copy inclosed, that he is the owner, and in possession, of the claim by virtue of compliance with the law and regula tions, and where the claim has stood the test of due notice of application for patent and no adverse claims have been filed, or if filed, they have been regularly disposed of, and has remained in this office more than two years, made necessary by reason of the arrears of work, before reached for examination, without any protest there against being filed, I think that it may be assumed that no adverse interests exist, and, that, all else being regular, a patent may be properly issued. If the foregoing meet with your approval the work on mining claims in this office would be facilitated.

COMMUTATION PROOF-CULTIVATION-RESIDENCE.

JOHN W. ALDERSON.†

In commutation cases breaking may be accepted as sufficient proof of cultivation, if compliance with the law is in other respects satisfactorily shown.

After the establishment of residence, temporary absences, for the purpose of earning a livelihood, do not authorize a presumption of abandonment.

Secretary Vilas to Commissioner Stockslager, May 18, 1888.

I have considered the appeal of John W. Alderson from the decision of your office of July 9, 1886, rejecting his final proof and holding for cancellation his homestead entry, No. 2663, and cash entry No. 5135, on the S. SE. † Sec. 30, S. † SW. Sec. 29, T. 111 N., R. 65 W., Huron district, Dakota Territory

*See 4 L. D., 374, and this volume page 505. Omitted from Vol. VI.

Alderson's homestead entry upon the land was made March 29, 1883, and on October 24, 1883, he commuted his homestead to a cash entry and made final proof, which was approved by the local officers and payment for the land accepted.

It appears from the proof, that Alderson established actual residence upon the land April 16, 1883, and remained thereon, with the exception of absences aggregating about five weeks, until the date of the final proof, October 24, 1883, a period of six months and eight days; and that his absences were necessary in order to enable him to make a living. His improvements, which cost $175.00, consisted of a two-story house, ten by twelve feet, with shingle roof, and a well and five acres of land broken.

In obedience to the requirement of your office, Alderson furnished, December 3, 1885, a corroborated supplemental affidavit, setting forth that his absences were from June 5, to June 8, and from July 16, to August 16, and from September 4, to September 6, 1883; that on October 24, 1883 (the date of his final proof), he removed from the land to Wisconsin, where he has since lived; "that he did not settle on and improve said land to sell the same on speculation, but in good faith to appropriate it to his own use and always did and does still intend to use said land as his homestead; and that the land has been leased out by him for two years (1884–5) and cultivated each year, and has been assessed to him and he has annually paid the taxes thereon.”

Your office, July 9, 1886, rejected the proof as thus supplemented and held for cancellation his original and cash entries. Alderson appealed from said decision and attached to his notice of appeal an affidavit, dated August 13, 1886, that "about April 10, 1886, he broke or caused to be broken twenty acres of the land and that previous to that time he had broken five acres, thus making twenty-five acres under cultivation, and that said twenty-five acres were all in crop in 1886, and said five acres were in crop during the years 1884 and 1885."

In the decision of your office, stress is laid upon the fact that the five acres broken were not put in crop the first year-1883. This was not necessary; the breaking was a sufficient cultivation in this case. John E. Tyrl (3 L. D., 49); Clark S. Kathan (5 L. D., 94).

Residence was established April 16, 1883, more than six months before final proof was offered, and the temporary absences for the purpose of making a living shown during that time, do not authorize the presumption of abandonment.

I am of the opinion that the departmental rule requiring "six months actual residence and improvement of the tract" has been substantially complied with. Though absent after the proof was accepted, he still continued to use the land for his own benefit and had more land broken and put in crop, and this is corroborated in his affidavit "that he always did and does still intend to use said land as his homestead." The six months residence in pre-emption and commutation cases is required

by the Department rule as an evidence of good faith, and where it is complied with, as in this case, if not conclusive evidence of good faith, it raises a strong presumption of such good faith and shifts the burden of proof from the claimant. The evidence in this case, in my opinion, is not sufficient to rebut the presumption thus raised by the claimant's compliance with the rule.

The decision of your office is accordingly reversed and the entry will be passed to patent.

FINAL PROOF PROCEEDINGS—EQUITABLE ADJUDICATION.
NELLIE N. DORMAN.

An entry may be referred to the Board of Equitable Adjudication, where the testimony of the final proof witnesses was taken at the time and place designated, but before an officer not named in the notice, and such action is satisfactorily explained.

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

I have considered the appeal of Nellie N. Dorman from the decision of your office dated April 6, 1887, requiring new publication and new proof in support of pre-emption cash entry No. 10,022 of the S. W. Sec. 18 W. N. R. 74 W. made by her, before her marriage in the name of Nellie N. Brokau, at the Huron land office in Dakota Territory on August 15, 1884.

The record shows that the register, on April 30, 1884, gave notice of claimant's intention to make final proof in support of her claim, before the judge of the probate court in and for Potter county, at Forest City on July 29th, 1884, and that the testimony of the witnesses would be taken before Audren C. Brink, a notary public, at Gettysburg D. T., on July 28, 1884. The testimony of the witnesses was taken before a different notary, on the day advertised, and the testimony of the claimant was taken on the day and before the officer as advertised. With the final proof was filed the affidavit of claimant, in which, she swears that said Brink was not in the county of Potter on the day advertised for taking said testimony, but had gone to Illinois. On August 12, 1884, the claimant filed with the local officers an explanation of the delay in forwarding the purchase money, and prayed that they would accept the final proof, receive payment and issue certificate for the land, which was accordingly done.

On appeal, the claimant has filed another affidavit dated July 30, 1887, in which she swears that since making said final proof on July 29, 1884, she married Jackson Dorman on January 16, 1886, and is now living with him in another county: that she lived on said land about ten months after making final proof: that at the time she made final proof, she could not find the notary public, advertised to take the

testimony of her witnesses: that she made diligent inquiry to ascertain his whereabouts and learned that he was absent from said Territory: that said absence was without her procurement or consent: that she then procured another notary, who swore her witnesses at the time and place advertised and that there was no protest against the allowance of said proof. The final proof shows compliance with the requirements of the pre-emption laws and the regulations of the Department relative to inhabitancy, improvement, and cultivation. The explanation given for the change in notaries and the delay in forwarding the purchase money was satisfactory to the local officers, and the same appears in the entry papers.

In my opinion the technical defect should be considered by the Board of Equitable Adjudication. You will please refer said entry to said Board, under the appropriate rule.

The decision of your office is modified accordingly.

RAILROAD GRANT-CONFLICTING SETTLEMENT CLAIM.

ODGERS v. CENTRAL PAC. R. R. Co.

The statement of a settler as to the time when he filed his declaration of intention to become a citizen, though unsupported by record evidence, will be accepted in the absence of anything tending to impeach the truthfulness thereof.

A claim resting on settlement, residence, and improvement, covering the dates of withdrawal on general route and definite location, is sufficient to except the land covered thereby from the operation of the grant.

Secretary Noble to Commissioner Stockslager, May 27, 1889.

The Central Pacific Railroad Company appeals from your office decis ion, dated April 14, 1887, in the case of Henry Odgers against said company, rejecting the latter's claim, under its grant of July 1, 1862 (12 Stat., 498), to the S. of the NW. 1, and the N. of the SW. 4, Sec. 19, T. 16 N., R. 9 E., Sacramento, California.

The land in question lay within the limits of the withdrawal made for the benefit of said company, on map designating the general route of its road, notice of which was received at the local office October 3, 1864, and falls within the granted limits of the company's road, as desig nated by map of the definite location thereof, filed October 27, 1866.

The record shows, that on March 16, 1886; Odgers made application to enter the tract under the homestead law, accompanied by his affidavit to the effect that he was then an actual bona fide settler on the land, and a qualified homesteader; that the tract had not passed to the company under its grant, but was excepted therefrom by reason of the settlement claim of one Thomas Doyle, a qualified pre-emptor, who was, at the date of the definite location of the company's road, residing on and claiming the same, and who, as soon as the township plat was re