ABANDONED MILITARY RESERVATION-HOMESTEAD-QUALIFICATION— ACT OF AUGUST 23, 1894.

SMITH. LONGPRE.

The disqualification to make homestead entry, imposed by section 2289 of the Revised Statutes upon a person owning more than one hundred and sixty acres of land, extends to one who holds land under a contract of purchase, though the payments thereunder have not been completed.

The preference right of entry accorded by the act of August 23, 1894, opening lands in abandoned military reservations to settlement and entry, to settlers "who are qualified to enter under the homestead law," extends only to persons who are qualified at the date of the presentation of their applications.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) August 12, 1903. (G. B. G.)

This is a duly entertained motion on behalf of Antoine Longpre for review of departmental decision of January 31, 1903 (unreported), which directed the cancellation of his entry allowed September 17, 1900, for the S. of the NW. and lots 3 and 4, Sec. 33, T. 13 N., R. 28 W., North Platte land district, Nebraska.

This land was in the former Fort McPherson military reservation. The reservation was relinquished and abandoned January 5, 1887, but the odd-numbered sections therein, of which the land in controversy is a part, were withheld from disposal pending the determination of a claim asserted thereto by the Union Pacific Railway Company. The company's claim was denied October 24, 1899 (29 L. D., 261, 264), and pursuant to instructions of August 3, 1900 (30 L. D., 213), the land was relieved from reservation, to take effect September 17, 1900. On that day Longpre applied, and was permitted, to enter said tract under the act of August 23, 1894 (28 Stat., 491).

May 14, 1901, Eber H. Smith, whose application to enter the land had previously been rejected, filed an affidavit in the nature of a contest against Longpre's entry, alleging, among other things, that he (Longpre) at the date of his entry was the proprietor of more than one hundred and sixty acres of land and therefore disqualified to make an entry under the homestead laws.

The case was submitted upon an agreed statement of facts, which included an admission on the part of Longpre that on August 13, 1896, six years after his settlement on said tract, he purchased from the Union Pacific Railway Company 186.20 acres of land, not described in the stipulation, on a ten year credit contract, that he has since complied with the terms of the contract in the matter of payments as they fell due, and has had the possession and use of such land to this time, and it was upon this admission that the decision complained of directed the cancellation of his entry.

Section 2289 of the Revised Statutes, as amended by the act of

March 3, 1891 (26 Stat., 1095), provides that every person who is the head of a family, or who has arrived at the age of twenty-one years, and is a citizen of the United States, or has filed his declaration of intention to become such as required by the naturalization laws, shall be entitled to enter one quarter-section or a less quantity of unappropriated public lands: "But no person who is the proprietor of more than one hundred and sixty acres of land in any State or Territory shall acquire any right under the homestead law."

Construing the clause of this statute above quoted, the Department, in the case of Leitch 2. Moen (18 L. D., 397), held that the disqualification thereby imposed extends to one who holds land under a contract of purchase, though the payments thereunder have not been completed. No good reason is perceived why this ruling should be changed. The word "proprietor" in the statute means nothing more nor less than owner, and an owner is one who has dominion over a thing, which he may use as he pleases, except as restrained by law or by agreement, and includes any person having a claim or interest in real property, though less than an absolute fee.

But it is suggested that by the act of August 23, 1894, supra, it was intended to grant to actual settlers upon abandoned military reservations a then present and vested right to be measured by then existing conditions, and that inasmuch as Longpre was at the date of the act an actual settler upon the land in controversy, and was not then in any sense the proprietor of more than one hundred and sixty acres of land, his purchase from the railway company not having been made, the subsequent purchase did not disqualify him.

This suggestion will not hold. The said act of August 23, 1894, omitting provisions and exceptions not here material, provided:

That all lands not already disposed of included within the limits of any abandoned military reservation heretofore placed under the control of the Secretary of the Interior for disposition under the act approved July fifth, eighteen hundred and eighty-four, . . . are hereby opened to settlement under the public-land laws of the United States and a preference right of entry for a period of six months from the date of this act shall be given all bona fide settlers who are qualified to enter under the homestead law and have made improvements and are now residing upon any agricultural lands in said reservations.

It must be noted that under the terms of this act these lands were opened to settlement "under the public land laws of the United States," and that the preference right of entry thereby accorded is to "settlers who are qualified to enter under the homestead law." At the date of this act, section 2289, as amended, prescribed the qualifications of persons who might thereafter claim the benefits of the homestead law, and the ownership of more than one hundred and sixty acres of land was just as surely a disqualification as infancy, the ceasing to be the head of a family, or alienage without declaration of intention to become a citizen under the naturalization laws. And to

argue that a person free from such disqualification at the date of the act might not thereafter disqualify himself from making an entry thereunder is to say that he, for instance, being a citizen, would not disqualify himself by expatriation, or, in the absence of special legislation, that a woman, the head of a family, would not disqualify herself by marriage.

It seems clear-in the nature of things must be true-that the settlers referred to "who are qualified to enter under the homestead law" include only persons who are qualified at the date of the presentation of their applications. (See Clark v. Mansfield, 24 L. D., 343.) At such time Longpre was, according to the decisions of this Department in similar cases, the proprietor of more than one hundred and sixty acres of land, and therefore disqualified to make the entry. The Department is keenly alive to the strong equities in favor of this entryman, but must construe acts of Congress according to their manifest intent. The motion is denied.

MINING CLAIM-PATENT PROCEEDINGS-NOTICE.

OSCAR LODE CLAIM.

Where an application for patent is filed and the proceedings carried to entry by a mineral claimant in the names of himself and his co-owner company, without authority from the latter, and the entry is subsequently canceled for defects in the patent proceedings, upon notice to the former alone, the co-owner company, by claiming under the patent proceedings and asking the reinstatement of the canceled entry, thereby ratifies and confirms the assumed authority exercised by its co-claimant in its behalf, validates the notice upon which the entry was canceled, and is not in position to object that the entry was canceled upon insufficient notice.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) August 13, 1903. (F. H. B.)

January 25, 1884, The Ouray Discovery and Mining Company and James A. Drummond made entry, No. 839, for the Oscar lode mining claim, survey No. 1672, Lake City, Colorado.

In the transcript of the field notes of survey of the claim, upon which the certificate of the surveyor general was based, the deputy mineral surveyor who surveyed the claim described the improvements as "a discovery cut" and "an interest in a developing tunnel run for the development of the Oscar and other lodes," said tunnel being 120 feet long. In April, 1886, your office, in due course of administration, found that satisfactory evidence of the corporate existence of the Ouray company had not been furnished; that the abstract of title filed, bearing date October 20, 1883, had not been brought down to the date of the application for patent; and that the report of the

deputy mineral surveyor contained no showing of the proportion of the tunnel claimed on behalf of each claim to which it was sought to accredit it, or that the tunnel was run or used for the development of the respective claims; and the local officers were directed to notify the parties of the defects in the proof, and, in addition, an explanatory affidavit was required of the deputy surveyor. The required affidavit was furnished by the latter and transmitted to the surveyor-general, who withheld his approval thereof. July 7, 1893, your office again called attention to the defects in the proofs and directed the local officers to notify the parties (from whom no response to the requirements previously made had been received) that they would be allowed thirty days within which to submit the required evidence; and copy of your letter to them was served by the local officers upon Drummond. September 20, 1893, your office held the entry for cancellation, subject to appeal, because of default with respect to the evidence called for, notice of which was served on Drummond; and, December 19, 1893, the entry was formally canceled.

September 10, 1902, "Jesse F. McDonald, agent and attorney in fact for The Ouray Discovery and Mining Company," filed petition for reinstatement of the entry, substantially upon the following grounds: That the claimant company never had notice that there were any defects in the proofs submitted at the date of entry, or of the requirements in that behalf by your office in its letter of July 7, 1893, and former letters, which proofs it would otherwise have furnished; that the status of the patent proceedings was first suggested to the company in June, 1902, when it learned that a new location had been made upon the claim by other parties; that it thereupon made inquiry of your office and received in response certified copies of all the correspondence relating to the claim, whence it derived its first definite knowledge of the facts; and that the company has continually been in the actual and undisturbed possession of the claim, and was at the time of the relocation thereof carrying on development work for its benefit. Certified copies of the original and amended articles of incorporation of the company were also submitted. Having been thereupon called upon by your office for evidence of his authority to represent the petitioning company, McDonald filed an abstract of title, extended from October 20, 1883, to December 1, 1902 (but not certified in accordance with the requirements of paragraph 42 of the mining regulations-31 L. D., 474, 481). By this abstract it appears that the Ouray company, by its deed of April 15, 1890, conveyed all its right, title, and interest (shown by the abstract filed at the date of entry to be a three-fourths interest) to The Eli Mining and Land Company; and therewith McDonald filed power of attorney to represent the latter company in the proceedings looking to reinstatement of the entry, and asked that the petition be considered as the petition of

the Eli company. Your office accepted the substitution, and, by decision of January 27, 1903, found and held that the additional evidence called for prior to the cancellation of the entry was essential; that the required evidence of an expenditure in labor or improvements in satisfaction of the requirements of section 2325, Revised Statutes, had not been supplied; that a copy of letter of September 20, 1893, whereby the entry was held for cancellation, was served on James A. Drummond, co-claimant, as evidenced by his signature upon the registry return receipt therefor; and that Drummond was the legal agent of the Ouray company, and the undisputed legal service of notice upon him was also legal service upon the company: Wherefore, "and in view of the seeming negligence of The Eli Mining and Land Company and the disclosed relocation of the claim," the petition was denied.

February 10, 1903, the Eli company filed motion for review of the last-mentioned decision, and urged, as grounds therefor, in substance and effect, that there had not been a "legal service of notice" upon it or the grantor company, or a regular cancellation of the entry; that satisfactory evidence of the expenditure in labor or improvements required by section 2325, Revised Statutes, had been furnished; that petitioner had not been negligent in any degree; and that the entry should be reinstated upon the showing made by the record. decision of March 2, 1903, your office held as follows:

By its

I have re-examined the case with particular reference to the alleged errors in said office decision, and find that, as stated in said decision, service of notice of the order holding said entry for cancellation was made upon James A. Drummond, a co-owner, who acted in behalf of himself and The Ouray Discovery & Mining Company in the matter of application for patent and entry of said claim. This would appear to have been sufficient service under the regulations.

In the official field notes filed in connection with the application for patent the improvements are stated to consist of a discovery cut and an interest in a tunnel situated upon the Mountain Belle lode, the amount credited to this claim being $500. Subsequently, the deputy surveyor filed in the United States Surveyor General's office additional affidavits on this point, but no certificate thereon was ever issued by that officer. These additional affidavits do not specify what proportion of said tunnel was claimed by each of the lodes to which it was credited, and “that said tunnel was run or used for the development of the claim, respectively and particularly," as was required by this office. While it may be true that the petitioner for reinstatement was not negligent in the matter of the completion of the proofs required, it is nevertheless true that the entrymen themselves allowed a long period of time to elapse without any effort to comply with the requirements of this office, and the present owner occupies no better status, so far as the reinstatement of the entry is concerned, than his grantors. There being no error in the decision of this office refusing to reinstate said entry, the same must be sustained and the motion for review is accordingly denied.

The Eli company has now appealed to the Department, and makes the following assignments of error:

1st. It was error to hold that legal service of notice of decision holding said entry for cancellation had been given by the Department and the entry regularly canceled.