It further appears on the face of such application that the description of the lands to be entered is in a handwriting different from the handwriting of the rest of the paper. The description seems to be in the handwriting of the person that wrote Tomlinson's application for the entry of his forty acres.

In addition to these incongruities presented by the records, there are other circumstances in the case that lead me to suspect that the entries sought to be made by Barnes ostensibly for Tomlinson and Emerson, were really intended for himself.

Barnes had made a homestead entry for the whole SW. † a contest against his entry having been initiated, he files, shortly before the hearing, the withdrawal of the contest by the contestant; also his own relinquishment and the applications of Tomlinson and Emerson, for entries covering the same laud. Tomlinson's residence in 1881, was in Texas. Emerson's in 1882, in Michigan; it did not appear where they resided May, 1885. Tomlinson being entitled to make an entry for eighty acres, makes claim to but forty, for this amount together with Emerson's claim covered the whole one hundred and sixty acres. When Tomlinson's application is rejected, Barnes in his own proper person moves for a review. The power of attorney mentioned he forwards, as stated in his affidavit, to his attorneys Curtis and Burdett. In short, through the whole proceedings he seems to act as principal not as agent. Inasmuch then as the law forbids and will not recognize an assignment of a soldiers' additional homestead entry (John M. Walker, et al, 7 L. D., 565), I think the facts in this case should be further investigated. If Tomlinson and Emerson never intended to make an actual personal settlement on the land covered by their respective claims, never intended to reside thereon and improve and cultivate the same, if, in fact they had no knowledge of the said applications made by Barnes for them, never having been informed of the location of those entries; if Barnes, pretending to act as the agent of Tomlinson and Emerson, in truth acted solely for himself, using the said pretended agency to cover the said lands with entries illegal in their inception,-then these applications of Tomlinson and Emerson must be denied and Hoffman must be allowed to make homestead entry for the said lands, as prayed for by him. For the purpose, therefore, that the right of the said parties in relation to the matter in difference between them may be fully investigated and ascertained, it is ordered, that a hearing be had before the local officers when the facts in relation to the various applications of the parties can be fully inquired into and their rights regarding the lands in controversy determined. All parties in interest should be served with

notice of the hearing.

Your said decision is accordingly modified.

PROCEEDINGS ON FINAL PROOF-COMMUTATION-CULTIVATION.

CAROLINE Welo.

The action of the General Land Office on final proof should cover the sufficiency thereof, as well as other questions affecting the validity of the same.

In the commutation of a homestead entry, breaking may be accepted as satisfactory proof of cultivation.

First Assistant Secretary Chandler to Acting Commissioner Stone, June 14, 1889.

I have considered the appeal of Caroline Welo, formerly Caroline Anderson, from the decision of January 10, 1888, rejecting her commutation proof and suspending her cash entry for the N. of the NE. Sec. 9, T. 155 N., R. 66 W., Devil's Lake, Dakota.

The record shows that Caroline Anderson made homestead entry of above tract September 29, 1885, established her actual residence thereou March 30, 1886, and made commutation proof October 16th following.

It appears that claimant married after making entry and before submitting final proof. Her improvements consisted of a frame house eight by eighteen feet, a well twenty-four feet deep, nine acres of breakingtotal value $150. Her residence from March 30, 1886, to date of proof was continuous.

The local officers rejected claimant's final proof, as appears from their endorsement thereon, "for the reason that claimant was married since homestead entry."

From this action an appeal was taken to your office, and on April 13, 1887, the papers in the case were returned to the local officers, "for your further action in accordance with the decision of the Hon. Secretary of the Interior, rendered October 22, 1886, in the case of Maria Good, formerly Wilcox (5 L. D., 196), which decision allows final proof to be made by women who have married since the making of their orig. inal entries, and before final proof is submitted, when it is shown that all conditions of law have been complied with in good faith."

The sufficiency of claimant's proof was not acted upon until the papers were again returned to your office. This was unjust to the entryman, as it delayed final action upon her claim. The system of rendering decisions piecemeal is oppressive to settlers and should not be continued.

In pursuance of said instructions, the local officers, on May 6, 1887, accepted claimant's proof, received the price of the land and issued final receipt therefor.

January 10, 1888, claimant's proof was rejected and her cash entry suspended by your office, on the ground that "she failed to show satisfactory improvements and cultivation." At the same time she was allowed, during the lifetime of her entry, to submit new proof showing compliance with law in all respects. From this decision claimant duly appealed to the Department.

The above action of your office is based upon the decision which Assistant Secretary Muldrow rendered in the case of Adelphi Allen (6 L. D., 420), on December 15, 1887. An examination of that case shows, however, that it is not analogous to the one at bar. In the Allen case the improvements consisted of a frame house with fence and outbuildings, and construction of a private road leading from the highway to the house, in which claimant had one-third interest. There was no breaking done in that instance and no cultivation. In the case at bar, the improvements consisted of a frame house, a well and nine acres of breaking. In the Allen case (supra) reference is made to the case of Engen v. Sustad (11 L. O., 215), in which the Department decided, that the erection of a house, the digging of a well, the erection of a stable, and breaking three and one-half acres constituted cultivation.

Section 2301 of the Revised Statutes confers upon the entryman the privilege of commuting his homestead into a cash entry by paying the minimum price for the land and "making proof of settlement and cultivation, as provided by law granting pre-emption rights." As already stated, claimant's residence from March 30, 1886, to date of proof, was continuous. Her improvements consisted of a frame house, a well and nine acres of breaking-total value $150. She has, therefore, complied with the law in the matter of residence and settlement, and as appears from the case above cited she has, also, by breaking nine acres of the tract, complied with the law in the matter of cultivation. I see therefore no good reason, as far as these requirements are concerned, why claimant's proof should not be accepted.

Said decision is accordingly reversed.

SURVEY-ACT OF OCTOBER 2, 1888.

NO MAN'S LAND.

The appropriation for surveys, made by the act of October 2, 1888, should be expended in the survey of townships occupied in whole or in part by actual settlers; but if there are no such lands remaining unsurveyed, there is no legal objection to the use of such appropriation in sub-divisional surveys of the public land strip.

Secretary Noble to Acting Commissioner Stone, June 14, 1889.

I am in receipt of your communication of the 16th ultimo, transmitting a letter from Senator P. B. Plumb, suggesting that a portion of the funds appropriated by the last Congress for public land surveys be expended in surveying the public land strip, commonly known as "No Man's Land."

You recommend that if it be considered legal, your office be authorized to contract for such surveys within the public land strip, as may be deemed advisable, the same to be charged to the regular appropriation for surveying the public lands.

The act of October 2, 1888 (25 Stat., 525), making appropriations for the survey of public lands, for the fiscal year ending June 30, 1889, provides, "That in expending this appropriation preference shall be given in favor of surveying townships occupied in whole or in part by actual settlers; and the survey shall be confined to lands adapted to agriculture and lines of reservation."

The standard and township lines within said strip were surveyed under an appropriation made March 3, 1881, for this purpose, and no other appropriation has been made for a survey of lands in said strip.

The general appropriation made for the survey of public lands for the fiscal year ending June 30, 1889, clearly contemplates that it should be expended in the survey of lands occupied in whole or in part by actual settlers and subject to entry under the settl ment laws, and proper execution of this law would demand that no part of said appropriation should be used so long as lands of this character remain un surveyed. But it does not prohibit the use of said appropriation on public lands of the United States, although they may be not now subject to settlement and entry.

If there is any part of said appropriation remaining unexpended, and there are no townships occupied in whole or in part by actual settlers remaining unsurveyed, I see no legal objection to the use of said appropriation in making subdivisional surveys in the public land strip.

FINAL HOMESTEAD PROOF- EQUITABLE ADJUDICATION.
EDWARD FULLMER.

In the absence of an adverse claim, or evidence of bad faith, a homesteader, whose proof was submitted after the expiration of the statutory period and found insufficient, may make new proof, and if satisfactory the entry may be sent to the Board of Equitable Adjudication.

First Assistant Secretary Chandler to Acting Commissioner Stone, June 15, 1889.

April 1, 1881, Edward Fullmer made homestead entry of the S. of the NE. 4, the NE. of the SW. and the NW. of the SE. of section 36, T. 27 N., R. 3 E., Wausau, Wisconsin.

May 1, 1888, the local officers transmitted the application of the entryman to be allowed further time within which to comply with the law as to residence upon the said land. Accompanying the application and filed in support thereof is proof on the usual forms. The entryman swears that he made the entry in good faith, has made improvements on the land, but that he has actually resided thereon only "from one to two months" each year. Poverty is given as the reason for not con tinuously residing upon the tract. The testimony shows that the improvements consisting of a frame house fourteen by twenty feet, a log

stable sixteen by twenty-eight feet, and ten acres cleared and fenced, are valued at $350.

May 29, 1888, your office considered said application and found that the entryman had failed to establish his residence on the tract and had also allowed the statutory period to expire without making proof. The entry was held for cancellation, whereupon the claimant appealed.

Inasmuch as there is no adverse claim and as bad faith is not estab lished, I will not cancel the entry for the sole reason that the entryman has failed to make final proof within the statutory period. The entry may stand and the claimant may make new proof showing compliance with the requirements of the homestead law. Such proof when offered will, if satisfactory, be referred to the Board of Equitable Adjudication. Goran Sandberg (7 L. D., 384).

Your decision is modified accordingly.

HOMESTEAD CONTEST RESIDENCE.

SPALDING v. COLFER.

In the absence of proof to the contrary, the place where a married man's family resides must be held to be the place of his residence also.

Residence is not acquired by one who goes upon public land with the fixed intention of leaving the same after a colorable compliance with the law, and in the meantime substantially maintains a home elsewhere.

First Assistant Secretary Chandler to Acting Commissioner Stone, June 15, 1889.

February 18, 1885, Thomas Colfer made homestead entry of the SW. of section 31, T. 4 N., R. 29 W., McCook, Nebraska, and August 23, 1885, Morillo A. Spalding filed an affidavit of contest against said entry alleging that the entryman—

Has wholly abandoned said tract; that he has changed his residence therefrom for more than six months since making said entry; said tract is not settled upon and cultivated by said party as required by law, and that he has failed to establish his residence on said land within six months after making nor since to this date.

A hearing was regularly had at which both parties were present with their attorneys and witnesses. The local officers rendered the following decision:

From the testimony presented it appears that the claimant, Thomas Colfer, has failed to establish residence as required upon the SW. †, Sec. 31, T. 4 N., R. 29 W. We are, therefore, of opinion that said H. E. No. 2315, should be canceled.

Colfer appealed and April 30, 1888, your office affirmed the action of the local officers and held the entry for cancellation on the ground that the entryman had failed to establish residence upon the tract entered. From your said decision Colfer took the appeal that is now before me for consideration.