The remaining inquiry of the register, as to whether the Department will furnish a book to register the allotments in, is a matter of detail, which may be safely left to the Commissioner of the General Land Office, whose duty it is to furnish such records as may be needed in the proper administration of his office.

[Endorsed,]

Referred to the Acting Commissioner of Indian Affairs for his information and direction.

JUNE 22, 1889.

JOHN W. NOBLE,

Secretary.

COMMUTATION PROOF-RESIDENCE-IMPROVEMENTS.

NELLIE E. BURCH.

Final proof made within the shortest period permissible under the law and regulations invites special scrutiny.

It is an element of weakness in final proof that the witnesses do not reside in the immediate vicinity of the land.

When poverty is pleaded as an excuse for absence from the land, commutation is a circumstance that makes against the good faith of the claimant.

Commutation proof should show affirmatively due compliance with the law, giving an explicit description of the improvements, and a full statement of the facts with respect to residence and cultivation.

By commutation the original entry is merged in the cash entry, and cancellation of the latter involves cancellation of the former.

If commutation proof is found insufficient, and bad faith is not apparent, the entry based thereon may be suspended and new proof submitted within the life of the original entry.

First Assistant Secretary Chandler to Acting Commissioner Stone, June 25, 1889.

June 14, 1883, Nellie E. Burch made homestead entry of the NW. of section 15, T. 108 N., R. 61 W., Mitchell, Dakota, and on October 17, 1883, gave notice of her intention to make final commutation proof December 15, 1883. Proof was made in accordance with the published notice before the register of the local office. It shows that the claimant is a single woman over the age of twenty-one years who has never made any other homestead entry and that she is a native of the United States.

The two witnesses use nearly the same language in answering the questions. They say that claimant "settled April 29, 1883, established actual residence April 29, 1883," that the improvements consisting of a frame house five by twelve and five acres of breaking are valued at about $50; that she has continuously resided on the homestead since first establishing her residence thereon and has not been absent except

to work in the vicinity of the land and has broken and cultivated for one season five acres.

The claimant swears that she is a single woman twenty-five years of age, that she settled on the land April 29, 1883, and established her actual residence thereon the same day; that her improvements consisting of a frame house five by twelve and five acres of breaking are val ned at about $50; that she has cultivated the land broken one season. "I have made my home upon the land" she says, and have not been "absent except to work in the vicinity of the land."

The proof was approved by the local officers but for some unexplained cause final certificate did not issue until March 13, 1884.

The proof was not satisfactory to your office which by letter of June 14, 1886, called upon the claimant to furnish an affidavit, duly corrob orated by at least two disinterested persons residing in the neighborhood of the tract entered and having personal knowledge of the facts sworn to, setting forth clearly the number of times she was absent from her claim, the duration and cause of each absence and also whether she had continued to reside upon the land since making final proof and has maintained an actual bona fide residence thereon, with full information as to the character and value of the improvements and the nature and extent of the crops raised.

A registered letter notifying the claimant of the requirements of your office was mailed to her last known postoffice address but the same was returned to the local office marked "not here" and nothing was heard from her until the local officers, October 5, 1887, transmitted an affidavit in response to your call for further information. This affidavit was made August 24, 1887, before a notary public in and for the county of Lewanee, State of Michigan. It sets forth:

That within the past thirty days she has just learned of the existence of Commissioner's letter "C", June 14, 1886. That she made an actual bona fide settlement upon said tract on April 29, 1883. That said settlement consisted of having built a frame house five by twelve feet in size and on that day she established an actual bona fide residence therein. That she was not absent from said tract since making settlement until after she made final proof with the following exceptions: She worked in the family of her brother three miles north until after harvest and up to about September 1st. That from two to three times a month she went home on said tract and stayed all night and sometimes over Sunday. That she had no means of support, and was dependent upon her individual efforts to obtain a livelihood, and she worked in her brother's family helping his wife in her household affairs, to obtain means to purchase her clothing and to pay for the improvements on this land. That after abont the 1st of September, 1883, she quit working for her brother and on two occasions visited a friend in the town of Huron some ten miles distant. That her visits on these occasions to the best of her recollection did not extend over three or four days at one time. Affiant further says that she cannot give the exact dates of these two visits by reason of there being no peculiar circumstances connected with it to refresh her memory. That other than these temporary absences she was not absent from her home on this land. That during all of the times she kept her clothing other than what she actually wore, upon the land as well as her trunk, that during the season

of 1883 she had about ten acres of the tract broken and had ten acres planted to crop each year of 1883 and 1884. That she took this tract of land in good faith and to the best of her knowledge she has done all she could in complying with the homestead law.

George W. Woodford and William P. Fell of Beadle county, Dakota, swear that they have carefully read said affidavit and from their own personal knowledge know the facts therein set forth to be true.

Upon receipt of said affidavit your office took up the case for consideration and by letter of October 28, 1887, suspended both the original entry and the cash certificate with permission to the claimant to make new proof during the life-time of the entry when she can show full compliance with the law in every respect. "From the claimant's own statements" your predecessor said, "she has not lived on the tract more than two and one half months, from the date of settlement, and during that time was absent on two occasions for several days at a time. The improvements are very meagre and the proof is not of a character to justify this office in issuing a patent thereon."

The case is brought before me by the appeal of the claimant from your said decision which in a general way, alleges error in holding that the residence and improvements shown were not sufficient.

Payment of the consideration and compliance with the requirements of the law as to residence, cultivation and improvements are the matters of substance, which authorize the commutation of a homestead entry. Louis W. Bunnell (7 L. D., 231). The proof should show affirmatively compliance with the law. United States v. Skahen (6 L. D., 120).

The claimant alleges settlement April 29, and made proof December 15, 1883, and says that from the former date until September 1, "from two to three times a month she went home on said tract and stayed all night and sometimes over Sunday;" after the date last named her affidavit leaves the impression and should be understood as asserting, that she was actually residing upon the tract until she made proof and was absent only temporarily on several occasions for not longer than three or four days at one time. It thus appears that presence upon the tract was the exception and absence the rule. She alleged poverty as the cause of her absence but nevertheless avails herself of the privilege of purchasing the land by commuting at nearly the earliest moment pos sible. This Department held in the case of Andrew J. Healey (4 L. D., 80), that:

No fixed rule can be formulated as to what shall constitute good faith. The facts and circumstances surrounding each case should be carefully considered and if the acts of the entryman, as shown by the evidence do not clearly indicate bad faith, the entry should not be forfeited.

In carefully examining the circumstances in this case, I find that the proof was made a little more than six months after the date on which settlement is alleged and it therefore invites especial scrutiny. Frances M. Cull (5 L. D., 348); R. M. Chrisinger (4. L. D., 347). I also find that

the two witnesses to the proof do not live near the land and this fact is an element of weakness. Whitcomb v. Boos (5 L. D., 448). The house is not described with particularity as it should be (Fred. King, 4 L. D., 253), nor is any information given as to what was placed in it; the improvements are very meager and are valued at $50. I further find that absence was the rule and presence the exception and where poverty is pleaded as the excuse for absence from the land, the commutation of a homestead is a circumstance that makes against the good faith of the claimant. Whitcomb v. Boos, supra. In the case of L. and B. Knippenberg (4 L. D., 477) it was held that:

In commutation homestead cases, the settler may be excused for temporary absences under certain circumstances but in such cases where absence is the rule the claimant must conclusively show his good faith as to residence before the officers of the government can be justified in parting with title to public land so sought to be acquired.

The proof in this case does not satisfy me that the claimant has complied with the requirements of the homestead law and it is rejected. Inasmuch as the original entry has been merged in the cash entry (Greenwood v. Peters, 4 L. D., 237), and the cancellation of the final certificate would involve the cancellation of the original entry, I see no reason for disturbing your decision suspending the final certificate and allowing her to make new proof, under her original entry, during the life-time of the entry. Samuel H. Vandivoort (7 L. D., 86).

Your decision is affirmed.

INDEX.