declaratory statement for the NE. of said section and to contest said entry, which request was also refused by the local officers, on the ground above stated.

From this ruling Creasey and Crawford each appealed.

As you held Stearns' entry for cancellation, it seems you did not deem it necessary to pass on the question raised by these appeals, and, consequently, they are not, in strict practice, before me. It may be proper to say, however, that the action of the local office in refusing these applications is in conformity with the practice of the Department. (Gage v. Lemieux (8 L. D., 139, and cases cited).

In view of the premises, you will please direct a hearing to be had in this matter before the local officers, with notice to all parties in interest, to the end that the questions involved may be fully adjudicated. At such hearing Stearns will be permitted to make further proof in support of his claim, and to show the desert character of said tract, and that he has complied with the provisions of the desert land law. The decision of your office is modified accordingly.

HOMESTEAD CONTEST-RESIDENCE.

WEST v. OWEN.

Residence is an essential requirement of the homestead, law, and is neither acquired nor maintained without inhabitancy of the land, either actual or constructive, and that to the exclusion of a home elsewhere.

First Assistant Secretary Chandler to Acting Commissioner Stone, June 7, 1889.

This case involves the SW. Sec. 14 T. 105 N., R. 61 W., Mitchell, Dakota and comes here on the appeal of George B. Owen from your office decision of January 12, 1888, affirming the local office and holding for cancellation his cash entry for the tract named.

Owen made homestead entry for the said tract on April 21, 1882, which he commuted to cash entry on November 25th of the same year. On January 29, 1883, Eugene H. West initiated contest against said entry alleging that the claimant Owen had neither established or maintained a residence on the land as required by law, but for the past six years continued to live with his family at Marion, Iowa, and that during the existence of the said homestead entry, one H. S. Deland was in sole possession of the land as tenant of Owen and that the latter had entered the land for the purpose of speculation.

A hearing being ordered on said contest by your office the contestant West offered evidence in support of his allegations. This evidence comprised certain depositions taken before the clerk of the district court for Linn county, Iowa, on August 9, 1883, and testimony submitted at the local office on August 29, 1883.

The claimant offered no evidence in his own behalf but moved a dismissal of the contest on the ground that the evidence offered failed to sustain the allegations upon which it is based.

The local office sustained said motion and dismissed the contest, and upon appeal their action was affirmed by your office November 28, 1884.

The contestant appealed and on March 3, 1886, the Department reversed the stated action of your office but in view of the fact that "the sustaining of the claimant's motion to dismiss obviated the necessity of his submitting any evidence in support of his claim" directed the hearing on the contest to be continued. West v. Owen (4 L. D., 412). Thereupon on May 12, 1886, both parties appeared with counsel at the local office when the clai mant testified in his own behalf, no other witness being examined.

The local officers found that "the evidence of the claimant does not change or modify the facts as found in the Hon. Secretary's (Lamar) opinion" and held that the claimant's entry should be canceled.

On appeal by the claimant your office as herein before stated sustained the finding below.

In February 1882, the claimant purchased the relinquishment of a prior claimant, and in March following, at Marion, Iowa (where for several years he had resided with his family) he made a contract with one H. S. Deland to bring the latter with his family to Dakota, and to provide them with a house and stable. Deland in return to break a part of the tract involved. Claimant then built a house on the land into which during the latter part of April 1882, Deland and family moved. The claimant at this time remained with Deland for one night and two days, and thereafter until he made proof visited the claim at intervals of from three to four weeks, remaining two or three days at a time, and in the aggregate about fifteen nights.

When he visited the land he took provisions with him, but appears to have taken his meals with Deland. He left his household effects at Marion, and had a cot and some blankets in the house mentioned. But no particular part of this house was reserved for his use. With the exception of his married son who had a claim in the neighborhood, no member of the claimant's family visited the land during the existence of his homestead entry. His wife and daughter spent the summer of 1882 in the east, but continued their residence at Marion. Since about 1875, and during 1882, the claimant was in his father's employ and engaged in looking after the latter's property valued at $125,000 to $150,000 and located in different parts of the county. The claimant, to some extent explains his absence from the land by stating that he had charge of the construction of four stores at Marion, that his father (in May 1882, after the entry) had arranged to build. He also states that his wife refused to live in Dakota, and that in 1882, he voted in the county adjoining the one containing the tract involved.

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The improvements on the land, as shown by the claimant's proof, are valued at $340 and comprise a frame house twelve by sixteen feet with an "L" eight by ten feet, a stable, well, twenty acres broken and five cultivated. The claimant, however, only knew of such cultivation as informed by Deland. He states, however that his total expenditures on the land are in excess of its value.

It further appears that after making his proof, the claimant, during the winter of 1882 and 1883, visited the claim several times, and in March 1883, he leased the same to Deland, who continued to ocuupy it until the spring of 1884.

Counsel assert that the claimant's proof was made under the advice of the local officers. But the claimant on cross-examination admits that he was not "officially" informed that he had complied with the law, but got information from "general conversation with the officials and clerks of the land office."

The evidence, in my opinion, shows beyond a doubt that the claimant never established or intended to establish a bona fide residence upon the land, and that he has at no time been other than a visitor thereto. Residence is an essential requirement of the homestead law, and it is neither acquired nor maintained by occasional visits to the land. Fagan v. Jiran (4 L. D., 141).

A claim of residence is not consistent with the substantial maintenance of a home elsewhere. Van Gordon v. Ems (6 L. D., 422).

A settler who goes upon public land with the intention of remaining just long enough to receive title by colorable compliance with the law, and then return to his former home where his family has in the meantime resided and a greater part of his personal property remained, does not establish or maintain the residence required by the homestead law. Van Ostrum v. Young (6 L. D., 25).

To constitute residence there must be inhabitancy either actual or constructive; and such inhabitancy must exist in good faith and be exercised to the exclusion of a home elsewhere. Elliott v. Lee (4 L. D., 301); Crosby v. Dall (13 C. L. O., 210). "Mere visits to land to keep alive the fiction of a residence do not constitute compliance with the law." Strawn v. Maher (4 L. D., 235).

The decision appealed from is accordingly affirmed.

PRACTICE-NOTICE-INTERVENOR-CONTEST-ACT OF JUNE 15, 1880.

UNITED STATES v. SCOTT Rhea.

The record must show affirmatively all matters of notice requisite to confer jurisdiction.

In the service of notice by publication posting on the land is an essential, without which jurisdiction is not acquired.

A stranger to the record is not entitled to be heard as an intervenor without first disclosing under oath the nature of his interest.

An application to contest an entry filed pending proceedings against the same by the government, should be received and held subject to the final determination of such proceedings.

If such proceedings fail the contestant is entitled to proceed against the entry, his right taking effect by relation as the date when the contest was filed. The right of purchase under section 2, act of June 15, 1880, is suspended by an application to contest the original entry until the final disposition thereof.

First Assistant Secretary Chandler to Acting Commissioner Stone, June 7, 1889.

I have considered the appeal of Scott Rhea from the decision of your office, dated March 18, 1887, in the case of the United States v. Scott Rhea, involving the latter's homestead entry for the SW. of the NE. , the S. of the NW. and the NW. of the SW. 1, of section 33, T. 1 S., R. 40 W., Oberlin land district, Kansas.

The entry was made March 5, 1880. January 28, 1885, the tract was visited and examined by special agent Lee, who reported that no improvements had been made, nor breaking done, that the entryman was not known in the county and has never resided upon or improved any part of the land. He reported that there was no evidence of fraud and recommended the entry for cancellation for failure on the part of the entryman to reside upon, and improve the tract.

Upon this report a hearing was directed to be had. August 10, 1885, J. A. Hoffman made affidavit that he had made careful and diligent inquiry in the neighborhood of the land and in Cheyenne county and was unable to find Scott Rhea or to learn his post office address, and that personal notice of the contest cannot be made upon the said Scott Rhea within the State of Kansas.

A notice dated August 3, 1885, citing Scott Rhea, residence unknown, to appear at the land office at Oberlin, September 23, 1885, was published for the period of six weeks in The Cheyenne County Rustler, a weekly newspaper, and was posted in a conspicuous place in the local office for a period of thirty days. There is no certificate or affidavit showing that a copy of said notice was posted upon the land.

The hearing was held September 30, 1885. There was no appearance on the part of the defense. The special agent and two other witnesses testified that the entryman Scott Rhea was unknown in the neighborhood, had not resided upon the land, and that there were no improvements thereon. The local officers found that Scott Rhea had never resided upon the land in question and had not broken or cultivated any portion of it and recommended the cancellation of the entry. This decision was rendered January 29, 1886, and on March 2, 1886, Scott Rhea made application properly corroborated, to purchase said land under the second section of the act approved June 15, 1880, (21 Stat., 236). Said application was rejected because a hearing was pending. From the said action of the local officers Rhea appealed.

After the hearing was had and before a decision had been rendered, namely on December 4, 1885, A. A. Smith, filed a contest and tendered fees against the homestead entry alleging that "the said Scott Rhea never built a house upon said land and never resided thereon a single

day and has wholly abandoned said tract." This application was rejected by the local office because the hearing was pending. At the same time Smith applied to enter the land under the homestead law and alleged that he had settled thereon November 1, 1883, and erected a sod dwelling house twelve by twelve of the value of $50. December 14, 1885, the local officers transmitted Smith's appeal from their action in rejecting his application to contest.

March 18, 1887, your office affirmed the finding of the local officers that Rhea had not established and maintained residence upon the tract entered as required by the homestead law; but you held that they had erred in rejecting Smith's application to contest which you say, should have been treated as of the nature of a second contest and filed awaiting the determination of the proceedings instituted by the government and modified their decision accordingly. You also affirmed the action of the local office in refusing to allow Rhea to make cash entry of the land.

From the said decision the entryman Scott Rhea, by his attorney, S. W. McElroy, appeals.

Earle and Pugh, attorneys of this city, enter their appearance and file argument as attorneys for Mary Morgan, transferee, and O. H. Herring, attorney of this city, enters his appearance as attorney for J. G. Benkolman, grantee of Scott Rhea. These gentlemen have not complied with Rule 102, of Practice, which provides that" No person not a party to the record shall intervene in a case without first disclosing on oath, the nature of his interest."

The appeal filed by Mr. McElroy attacks the legality of the proceedings and alleges, among other things, that legal notice of the hearing was not given.

It appears from the record that the post office address of the entryman could not be ascertained and this fact is given as accounting for the failure to send him a notice by registered letter. The notice was published for the prescribed time, but it does not appear that a copy of it was posted on the land as required by Rule 14, of Practice. In the case of Kelly v. Grameng (5 L. D., 611) it is held that "notice by publication includes the posting of notice upon the land in contest, and if such posting is omitted the notice is incomplete." In the case of Parker v. Castle, (4 L. D., 84), it is held that the sending of a copy by registered letter, and the posting of a copy on the land are essential parts of a "notice by publication ;" and the absence of any one of these essentials makes inoperative the efficacy of the others, if the defect be not waived. It is quite clear that if the notice was not posted on the land due notice was not given and jurisdiction not acquired, and it has been held that the record must affirmatively show all matters of notice requisite to confer jurisdiction. Kelly v. Grameng (5 L. D., 611); Rabuck v. Cass (id., 398).

The local officers erred in not receiving the contest affidavit of Smith