residence is on the north smallest legal subdivision of the same, about a mile south of the Malade river, and about three quarters of a mile north of Padgett's house. He established his residence there in 1875. Between that time and the time Padgett established his residence on the northeast quarter of the tract in dispute-which was in December 1883-Bell built a fence from said bluff to the river, at a point south of his house and north of the tract in dispute. This fence, with the natural boundaries mentioned, seems to have afforded fair protection to the crops raised by Bell between the dates mentioned. The quantity of land thus inclosed, as loosely estimated by witnesses, is from four to eight hundred acres. At the time of Padgett's settlement the land south of said fence was open and without such improvements as indicated that it was claimed as a homestead, and Padgett testifies, that at the time mentioned Bell claimed the land within the described inclosure as a homestead and timber claim.

Padgett's house is on the SE. of the SE. of Sec. 2, and near the center of the one hundred and sixty acre tract in controversy. His improvements consist of a house, or "dugout," in which he has continuously resided since December 1883, a chicken house, irrigating ditch, about 15 acres of land cleared of willows and sage brush, and of which from five to seven acres were cultivated as a garden or truck patch in 1884 and 1885. These improvements are valued at from two hundred to three hundred dollars, and a portion of the land improved by Padg. ett is on the eighty in dispute embraced in Bell's desert land entry.

Bell's residence has been continuous, and since 1875 he has annually cropped a portion of his homestead claim. His improvements consist of a dwelling house, various outbuildings, orchard-partly in bearinggrape vines, grass plats, ornamental trees, plowed lands, etc.-all valued by contestee at twenty-five hundred dollars. In January, or February, 1882, Bell, assisted by James Edster, measured the east and south lines of the land he then intended, as he testifies, to claim as a homestead. Starting at the township line, he says, they ran south, or nearly south for not quite a mile, and put up a stake on the southeast corner, then ran west a quarter of a mile and put up another on the southwest corner of the land so measured, and marked each stake, by writing thereon, either "J. T. Bell" or "John Bell's homestead." The stake placed on the southwest corner of the land measured is within from five to ten rods, Bell thinks, of the southwest corner of his desert land claim.

It will be seen from this testimony, that Bell's intended homestead included a part of the land afterwards entered as a homestead and a part of his desert land claim.

Bell further testifies, that the land measured in 1882 for a homestead is a narrow valley, inclosed on the east side "by a wall-rock, three hundred or four hundred feet high, and on the west side covered by a bed of lava rocks extending from the river bluff about half way across the

desert land entry;" and that only about one-half of each of his claims is arable land, the government survey running the east line of his homestead over on the wall-rock, for three quarters of the length of said line, instead of along its base, where the line measured by him in 1882 was run.

It is shown by a preponderance of the evidence, that Padgett, prior to his settlement, had notice of Bell's older settlement claim to the land on which Padgett built his house and established his residence. It is also satisfactorily shown, that Bell, at the time he made his desert entry, had notice of Padgett's improvement on and settlement claim to the south eighty included in said entry, the same being the west eighty of the land in controversy.

Bell's attorney, in his argument in support of the first assignment of error, contends that Padgett was a wilful trespasser on the claim of another and not a settler in good faith on public land; that by his settlement on Bell's homestead claim he did not initiate a valid claim to the eighty acre tract awarded to him by the decision of your office, and that the work done by Padgett on said tract should not be held to except it from desert land entry.

No decision has been cited which sustains the position taken by appellant in argument, nor have I been able to find any authority directly in point on the question raised. The case of Oliver v. Thomas et al. (5 L. D., 289), cited as being in principle like the present case, differs from it in the material fact that in the case cited the land settled upon was, at the time of settlement, segregated from the public domain by a homestead entry; and it seems to me that the case cited carries the doctrine contended for by appellant to its utmost limits, and that it can not justly be extended to the case under consideration.

The land on which Padgett settled was uninclosed and unsurveyed public land, and though he had notice of Bell's claim, he also knew that under the settlement laws Bell could legally hold only one hundred and sixty acres of unsurveyed land, and he had apparently good grounds for believing that Bell was claiming more land than he was entitled to hold as a settler. Bell had, with the assistance of natural barriers, inclosed a much larger tract of land than a settler could legally hold on unsurveyed public land, and Padgett might reasonably conclude, notwithstanding said claim, that the tract in controversy was open to settlement.

The facts, in my opinion, show Padgett to have been a settler in good faith, and though after survey his house and the main part of his improvements were found to be on land rightfully included in Bell's homestead entry, yet that fact did not make him a trespasser ab initio, nor prevent his settlement claim attaching to the other vacant public land, which he intended at the time to enter, and on which he had prior to survey made improvements. In my opinion, it was not error to hold that

Padgett's improvements on said west eighty excepted it from Bell's desert land entry.

At the hearing an instrument in writing, dated March 31, 1884, and purporting to be a bill of sale from Padgett to Robert L. Justice, for the land in controversy, was introduced in evidence by Bell. The consideration expressed in this instrument is fifty dollars, and it purports to have been signed in the presence of R. C. Smith and W. F. Thompson, and to convey to said Justice Padgett's title to one hundred and sixty acres of unsurveyed land, on which he had lived without being molested since December 15, 1883. About April 8th to 10th, Bell and Padgett were each arrested, because of a conflict that had taken place between them, and taken by a constable to Shoshone. Padgett testifies, that, just before the constable came for him, Smith, one of the witnesses to said instrument-he says the other was not present-came to his "dugout" with it and asked him to sign it for him (Smith); that he asked what the writing was, and Smith said, "nothing but a description of the land; hurry up here comes the constable to take you to Shoshone it is nothing but to show that you have lived here, and

if you are kept away we can help you to hold the ranch Pollard (the constable) was close by, and I signed it in a hurry." He further testifies, that he did not read said instrument; that he never made any contract or agreement to sell his claim and improvements to Justice; that Justice never paid, or offered to pay, him a dollar of the consideration mentioned, never demanded possession, and that he (Justice) does not claim any right or title to the land under the pretended bill of sale. This testimony stands uncontradicted, and Padgett's residence on said land since the signing of said instrument has been continuous.

This evidence does not show that Padgett has sold, relinquished, or parted with his possessory right, or settlement claim to the land in controversy, or that he does not in good faith desire to enter said tract for his own exclusive use and benefit. Appellant's second exception to the decision of your office is therefore not well taken, and said decision is affirmed.

There appears to be some doubt entertained as to whether Padgett is willing to enter the eighty acres awarded to him, unless he is also allowed to enter the other eighty in controversy. If Padgett shall exercise his preference right to enter the eighty awarded to him within thirty days from the receipt by him of notice of this decision, Bell's desert land entry to that extent will be canceled, otherwise it will remain intact.

COMMUTED HOMESTEAD ENTRY-RESIDENCE.

MARTHA BLAKE.

The rule requiring six months of actual residence immediately preceding entry is for the purpose of testing the claimant's good faith, but where such good faith is manifest, temporary absences, during any period of the inhabitancy, occasioned by poverty or ill health, may be properly excused.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, June 20, 1889.

I have considered the case of Martha Blake on her appeal from your office decisions of October 16, 1885 and May 6, 1886 involving her homestead entry, as commuted to cash entry, for S. E. Sec. 24, T. 111 N. R. 73 W. Huron Dakota land district.

It appears from the record that on May 23, 1883, the said Martha Blake, then unmarried and named Fuller, made homestead entry for said land, and on April 8, 1885, she made final commutation proof and on payment of the government price received final certificate.

The published notice of making final proof was in her unmarried name although she had been married to Blake in January previous. The claimant and her witnesses testified that about June 1, 1883, she established her actual residence on the tract in question; that the improvements consisted of a house eight by ten feet in size, with ten acres in cultivation, value $100. That her residence had been continuous except two or three times, once for a little over two months being absent in order to earn money to live upon and to improve her land.

With her final proof she submitted a special affidavit stating the date. of her marriage, and also that from the last of May to December 1st 1883, she had resided continuously on the tract, but being then taken sick she was obliged to go to Pierre for medical treatment, and that at the end of three months having nearly recovered she returned to her said land and remained there continuously except when sick or absent to earn a living, and when so absent it was never for more than a week at a time.

Upon this evidence your office in letter "C" of October 16, 1885, to the local officers said.

I am of the opinion that this is an attempt to obtain title to the land through frand and in evasion of legal requirements, therefore the original and commutation entries are held for cancellation and the present final proof rejected.

Subsequently the counsel for Mrs. Blake filed a motion in your office for review of the said decision, supported by her own affidavit and that of four others, stating substantially the same facts as above set out, and in addition it is alleged that from the first of June 1883, until January 1, 1884, she was not absent from said land at all, but that in January 1884, having exhausted her means she went to a neighboring town to earn money for her support. She returned to the land March 1,

1884, and remained there until July. During the spring of 1884 she caused the three acres previously broken to be sowed to wheat, had eight acres more broken, set out six evergreens, seventy-seven boxelders and maple trees, also a number of cottonwoods and flowers and shrubs.

In July 1884, she was taken sick and was confined to bed until October, and that she was advised by her physician that it would not be safe for her to remain alone upon her farm during the winter and did not return to her land until April 1885.

That she spent upon her land all the money she earned except barely enough to feed clothe and maintain herself and that she has only been absent from the land since final proof because of ill health.

Your office by letter of May 6, 1886, refused to grant the motion for review but modified the former decision to the extent of "allowing the claimant ninety days to make new proof after proper advertisement wherein she must establish her residence in good faith in every particular," in default of which the entry was again directed to be canceled.

It fully appears that she established actual residence upon her land about the last of May or first of June, 1883, and that her residence was actual bona fide and continuous until December 1, fully six months, and that her subsequent absences were caused by sickness and by the necessity of earning a livelihood.

I think you are too harsh in your conclusions when you say, "I am of opinion that this is an attempt to obtain title to the land through fraud, and in evasion of legal requirements."

To my mind the evidence clearly shows that the entryman settled upon the tract in good faith, built a small house and resided therein for such length of time as could be expected, struggling as she was with poverty and ill health. As evidence of her good faith, she performed manual labor in the field, harvesting her crop. Surely if she desired to commit a fraud upon the government in securing this land, she would not have taken her place in the field as a harvest hand. I have no doubt that the cause of her sickness is largely attributable to her exposure, trials, privations and manual labor upon the tract in seeking to comply with the law. Under such circumstances the government should treat her tenderly and justly. It has been repeatedly held, that

The rule requiring actual residence of the claimant on the land for six months preceding entry, is for the purpose of testing the good faith of the claimant; but where the good faith of the settler is otherwise sufficiently established, temporary absences during any period of the settlement for the purpose of earning a living, not inconsistent with an honest intention to comply with the law, are accounted a constructive residence.

Israel Martel, 6 L. D., 566; Henry H. Harris, 6 L. D., 154; William A. Thompson, 6 L. D., 576; Evan L. Morgan, 5 L. D., 215; Nellie O. Prescott, 6 L. D., 245.

In my judgment the evidence is not sufficient to sustain the conclusion