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both the local officers and your office rendered decisions adversely to Carter. They, at the same time, recommended that Laura B. Palmer's declaratory statement be allowed as of the date of its presentation. For the foregoing reasons, your decision is affirmed.

RAILROAD GRANT-EXPIRED FILING.

CHICAGO BURLINGTON AND QUINCY R. R. CO.

Land included within an expired filing is not excepted from the grant of May 15, 1856, in the absence of a pre-emption right at date of definite location.

Secretary Noble to Acting Commissioner Stone, June 4, 1889.

By letter of July 28, 1888, you transmitted the testimony taken at a hearing had in pursuance of the directions in departmental decision of March 20, 1888, in the matter of the Chicago, Burlington & Quincy R. R. Co., for certification of the SW. of the SE. of Sec. 7, T. 71 N., R. 28 W., and the NE. of the SW. of Sec. 11, T. 73 N., R. 30 W., Des Moines, Iowa, land district.

These tracts were offered for sale in 1850. On November 23, 1854, one Jeremiah Shephard filed pre-emption declaratory statement for the SW. of the SE. † of Sec. 7, T. 71 N., R. 28 W., together with other lands. On October 4, 1854, one Daniel Strickland filed pre-emption declaratory statement for the NE. of the SW. 4 of Sec. 11, T. 73 N., R. 30 W. Final proof has never been offered under either of these filings but they both remain uncanceled of record.

The Chicago, Burlington & Quincy R. R. Co., as successor of the Bur lington & Missouri River R. R. Co., claims these tracts under the grant of May 15, 1856 (11 Stat., 9), to the State of Iowa, and on December 17, 1878, applied to have them certified. These lands fall within the granted limits of said road as shown by map of definite location April 7, 1857.

In passing upon the company's application it was said in your office letter of July 21, 1884, "the company must prove that these pre-emption claims were abandoned prior to the definite location of its road before the tracts can be approved for its benefit they being within the six mile limits of its grant." Said company thereupon furnished affidavits apparently to meet this requirement. On March 11, 1886, it was decided in your office that these tracts could not, under the rulings of your of fice," be conveyed to your company notwithstanding the evidence furnished of abandonment, by the parties making the filings, prior to the railroad grant."

Upon appeal to this department, it was held that the proof then submitted of the abandonment of the pre-emption claims was not satisfac tory, but that the company should be given an opportunity to show the truth of its allegations that these tracts were not excepted from said

grant and a hearing was ordered for that purpose. In your letter of transmittal of July 28, 1888, it is said

As the proof of abandonment prior to the definite location of the company's road is in each case satisfactory to this office, I recommend that instructions be issued that the tracts be listed and submitted for approval under the railroad grant.

The testimony adduced at the hearing shows that neither Shephard or Strickland ever improved or resided upon the tract covered by preemption filing in his name, that they both resided upon and claimed other land in that county about the time these filings were made; that Strickland had left the county before the definite location of the Burlington & Missouri River railroad, that both tracts were at the date of the definite location of said road unimproved and were afterwards improved by parties who purchased from the railroad company.

The act under which these tracts are claimed granted "every alternate section of land, designated by odd numbers, for six sections in width on each side of each said roads" and provided for indemnity when "it shall appear that, the United States have, when the lines or routes of said roads are definitely fixed, sold any sections or any parts thereof, granted as aforesaid, or that the right of pre-emption has attached to the same." (11 Stat., 9).

The tracts here involved were at the dates of the respective pre-emption filings subject to private entry and proof in support of such filings should, under the law, have been submitted within twelve months after settlement. This period had, however, in each instance expired long before the definite location of the road. Under these circumstances the company was, under the practice then existing, required as a condition precedent to the passing of title to it, to show that no pre-emption right to said tracts existed at the date of the definite location of its road. This has been done to the entire satisfaction of your office and of this Department, and the company's application should be allowed and said list should be submitted for approval as soon as practicable.

HOMESTEAD ENTRY-RESIDENCE-NEW FINAL PROOF.
EDSON O. PARKER.

A homestead entry made before the circular regulations of December 15, 1882, will not be held illegal though the entryman had previously filed a soldiers' declaratory statement for another tract.

A settler who makes scrip location of the sub-division on which his honse is situated, and then removes to the other part of the land embraced within his original settlement and makes homestead entry thereof, will not be entitled to credit for residence on the tract covered by his scrip location.

Regular homestead proof may be made under section 2291, R. S., where commutation proof has been rejected and permission to submit new proof is accorded.

First Assistant Secretary Chandler to Acting Commissioner Stone, June 4, 1889.

I have considered the appeal of Edson O. Parker from your office decisions of June 11, and October 1, 1887, holding for cancellation his

homestead entry for the W. of the SE. 4 and the SE. of the SE. of Sec. 11 T. 112 N., R. 72 W., Huron Dakota land district. (Mitchell series).

The plat of this township was filed in the Mitchell land office September 19, 1882.

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On June 9, 1882 Parker applied to file Valentine scrip certificate E215 on forty acres of land described by metes and bounds, and also as the NE. of the SE. of Sec. 11 T. 112 N., R. 72 W., said description being based upon a survey made by the county surveyor of the county in which said land was situated. Final certificate was issued on this location September 20, 1882.

On the last named day Parker made homestead entry for the W. of the SE. and the SE. of the SE. of said section. On the same day Mrs. Lucinda A. E. Robinson applied to file pre-emption declaratory statement for the SE. of said section, alleging settlement May 24, 1882. This application was refused by the local officers because the NE. of the said SE. was embraced in Parker's Valentine scrip location. Mrs. Robinson appealed from the decision of the local officers, and the papers were transmitted to your office December 22, 1882.

In your office decision of April 9, 1883, the local officers were directed to accept Mrs. Robinson's declaratory statement, it being said in that decision" she will be allowed to file for the land claimed, the right of Parker under his Valentine scrip location and homestead entry to be subject to whatever right was vested in her by virtue of her settlement on said tract."

In the meantime Parker had given notice of his intention to submit final proof under his homestead entry on November 29, 1882. Against the acceptance of such final proof Mrs. Robinson protested because of the pendency of her appeal from the action of the local officers refusing to accept her declaratory statement. Afterwards various affidavits were filed by each party attacking the validity of the claims of the other and various orders were made by the local officers. During the summer of 1883 a hearing was finally had at which a large amount of testimony was submitted by each party. The local officers seem to have retained this testimony and the record of the case in their office for a long time.

On May 20, 1884, a paper was filed in this case which reads as follows: An amicable settlement having been made in the above entitled cause, I hereby withdraw my protest against said Parker's proof, file herewith my relinquishment under my D. S., No. 4075 for said tract and withdraw all claim to same.

(Signed) LUCINDA A. E. ROBINSON. The local officers finally transmitted the record in the case June 10, 1886, as a defaulted contest.

In the decision of your office of June 11, 1887, it was said:

It only becomes under the circumstances necessary to dismiss the contest as far as Robinson's rights are concerned and to declare her case as closed and consider the record so far as the facts bear upon the validity of Edson O. Parker's final homestead entry,

After considering the case it was found that Parker's entry was invalid, his final proof fraudulent, and said entry was held for cancellation. From that decision and the denial October 1, 1887, of your office of his motion for a review of said decision, Parker appealed. The only questions now before me for determination are as to the validity of Parker's homestead entry and the sufficiency of his final proof thereunder. In the determination of these questions it is proper to consider the testimony adduced at the hearing heretofore mentioned. It was claimed by Robinson, and held in your office that Parker's entry was illegal because he had exhausted his homestead right by the filing of a soldier's declaratory statement for other land prior to the date of said entry.

In 1880, before going to Dakota, Parker filed a soldier's declaratory statement for other land, believing as he says, from the circulars of your office and the advice of attorneys that even if he did not conclude to enter said land, that such filing would not affect his homestead right but only his right to file another homestead declaratory statement. He visited the land in November, 1880, and being pleased with it concluded to make homestead entry therefor; made arrangements to have a house built, and made out the papers for his entry, said papers being sworn to before the clerk of the district court. He then went after his family and household goods, but was prevented by the severe weather and snow blockades from returning until the following June. About this time he learned that his application to make homestead entry had been rejected because not sworn to before the local officers. He afterwards filed pre-emption declaratory statement for said land, and in due time made final proof and entry thereof under the pre-emption law.

It was formerly the practice to allow one who had filed a soldier's declaratory statement to make entry for the land thus filed for or for other land in his discretion. Circular of September 14, 1876 (2 C. L. L., 472); and this practice seems to have continued until the issuance of the circular of December 15, 1882, (1 L. D., 648) wherein it was specifically said "a soldier will be held to have exhausted his homestead right by the filing of his declaratory statement." See also Stephens v. Ray (5 L. D., 133). In view of these facts I am not inclined to cancel this entry which was made prior to the circular of December 15, 1882.

In the final proof taken December 1, 1882, Parker testified that his house was built on this land February 10, 1882, that he commenced actual residence there March 24, 1882; that his improvements consisting of a one-story frame house, twenty-one by twenty-four feet in size, a cellar eight by ten feet, a coal house four by six feet, a stable sixteen by sixteen feet, a well and five and one half acres of breaking, were of the value of $200.00; that he had resided on said land continuously since establishing his residence there, and that his family consisting of his wife and two children had resided there continuously since May 30,

1882; that he had never been absent; that he had broken five and one half acres and had never made any other homestead entry.

When this proof was submitted it was with the purpose on Parker's part of commuting said homestead entry. When, however, the consideration of said final proof had by the protest of Mrs. Robinson, been so long delayed, the entryman on May 20, 1884, the day said protest was withdrawn, filed his affidavit saying-"having lived on the land a sufficient length of time added to his service in the army to make five years, he desires the benefit of his service in the army under Revised Statutes 2305."

It seems the local officers approved his proof, and on the same day, May 20, 1884, issued homestead final certificate It is shown by the information furnished to your office by the War Department that Parker was on August 21, 1862 enrolled in Company "F" 10th regiment New York Heavy Artillery Volunteers to serve three years or during the war, and was mustered out May 27, 1865 Parker afterwards filed his affidavit dated February 19, 1886, and duly corroborated, setting forth that he established actual residence on said tract on or about March 24, 1882, "that he and his family still reside upon said tract; that said residence has been continuous since first establishing actual residence thereon as stated above; that he has since continued to improve and cultivate said tract."

The testimony adduced at the hearing shows that Parker visited the SE. of said section 11, about February 10, 1882, commenced a house and put up a notice that the land was claimed by him as a homestead. This house which was on the NE. of the SE. of said Sec. 11, was finished March 24, at which time Parker claims to have moved into it although his family did not reach there until May 30th following. On June 9th of that year he filed Valentine scrip for the NE. of the SE. of said section. the tract upon which his house stood. On June 12th he moved his house onto the SE. of the SE. of said section and immediately upon the filing of the township plat made his homestead entry for said last named tract and the W. of the SE. of said section. Parker laid off into town lots the tract upon which he filed the scrip and commenced selling such lots at once, but I do not find that the evidence justifies the conclusion reached in your office that such sales were "not confined to the lands he scripped but embraced a portion of the land described in his homestead entry."

This claimant cannot be allowed credit for residence on the tracts to which he seeks title under the homestead law prior to June 12, 1882, the date on which he removed thereto from the tract for which he had filed Valentine scrip. Although he may have gone on the land with the intention of claiming it under the homestead law yet he by his subsequent action in taking under another law the tract upon which his dwelling house was until that time situated, and upon which the most if not all of his improvements had been made, must be held to have

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