land which was already his. It is but an adjustment of boundaries in perfection of a location previously made and having relation. back to the time of the location; not an original location of the scrip. I have heard full argument by able counsel of the question involved, and am entitled to presume from the character of the gentlemen employed, as well as from the obvious skill and research exhibited, that every resource of reason and the books has been exhausted to sustain the claim of this location. But continued reflection has begotten a firm conviction that it is the duty of the Department, in administering this law, to give effect to these limitations, for the existence of which there was obvious reason, and which are plainly declared in the statute. To do otherwise would be to lend the aid of the Department to defeat the law which it is established to administer and enforce. The regulation which was the basis of your decision and is so sharply criticised as unauthorized, is not an addition to the law. It is but a rule of evidence to show that the law has been in fact observed. Nor can parties justly make claim of hardship by the enforcement of this rule. It has existed since 1872, and must have been known to them; and when they attempted to locate this scrip in disregard of it, they took the risks that it would be enforced if determined to be valid. They have nothing to complain of because of the failure of an attempt which they made with such notice of its risks. I have not considered it necessary to point out the many minor informalities apparent in these locations. For the reasons herein set forth. I concur in the judgment of your office that the various scrip locations. involved in this case are invalid and that part of the decision appealed from which holds said locations for cancellation, is affirmed. There remain to be disposed of the claims under the homestead and pre-emption laws. As heretofore stated Joseph W. Allen and Michael H. Brown were each allowed to make homestead entry for lots 5 and 9 in Sec. 26, and both were parties to the case and were represented at the hearing before the local officers. As a result of that hearing the local officers recommended that both entries should be canceled. From that decision Brown failed to appeal, and it was not through diligence on his part that said decision was afterwards reversed. Your office held that Brown did not make his entry within the time prescribed by the third section of the act of May 14, 1880 (21 Stat., 140), and for that reason awarded the priority to Allen. I cannot concur with this conclusion. The plat of that township was, it is true, received at the local office June 12, 1882, but as stated in the decision of the local officers the land was not declared open for filings and entries until June 19. The published notice of the filing of said plat stated that applications to file upon or enter land embraced in said plat would be received on June 19, 1882. The three months within which entries should be made must be held to have begun to run on the 19th instant, and Brown's entry made September 19, 1882, was in time. It is contended, however, that Brown did not settle on this land with the intention of acquiring title thereto under the homestead laws but that he went there to take possession of a certain lot in the town of Glendive which he had purchased from Lewis Merrill. There was introduced as a part of the testimony at the hearing a contract dated November 14, 1881, by which Lewis Merrill agreed to sell to M. H. Brown, lot 3, block 20, of the town of Glendive for the sum of $100 payable as follows: $25 at date of contract; $25 March 14, 1882; $25 July 14, 1882, and $25, November 14, 1882, with interest at twelve per cent per annum and signed by Lewis Merrill and M. H. Brown. On the back of this instrument is the following endorsement: March 14, 1882, Received on the within contract twenty six dollars, second payment on the within contract. (Signed) N. C. Lawrence, Agt. Brown admitted that he bought said lot and signed the contract but claimed that soon afterwards he found out that the parties who sold to him had no right to the land and he then concluded to take the land as a homestead and denies that he ever paid the second installment with which he is credited on the back of the contract. He commenced to build a house on the land in dispute on November 17, 1882, but claims that he did not know whether or not it was on lot 3 of block 20, in the town of Glendive and that he never knew where said lot 3 was situated. He moved into his house about December 6, 1882, and had resided there continuously. Brown is unable to state the exact date on which he determined to repudiate his contract of purchase and to take the land under the homestead law but says it was a short time after the execution of the contract and that when he commenced to build his house he intended to take the land under the homestead law. It appears, however, that he was credited with a payment on said lot as late as March 14, 1882, that he did not take any steps to relieve the land of Merrill's claim, although he admits that Merrill was building a house on said land at the time he, Brown, went there, that he did not make entry therefor until after Allen had taken steps to procure the cancellation of the Merrill and Winston claim and finally when the local officers sustained those claims and held the homestead entries for cancellation, he, Brown, took no steps and made no effort to procure a reversal of that decision. These facts justify the conclusion that Brown went on this jand by virtue of his contract of purchase and not with the fixed intention of obtaining title to lots 5 and 9, Sec. 26, under the homestead laws, and I therefore hold the claim of Allen to be superior to that of Brown, and it is directed that the latter's entry be canceled. Allen's entry will be allowed to stand subject to final proof by him within the life-time thereof, showing full compliance with the requirements of law. The final proof heretofore, submitted by Thomas Kean, under his pre-emption filing was made at the time when the validity of his said filing was in dispute and is therefore rejected. He will, however, be allowed ninety days from notice of this decision within which to submit new final proof in support of his claim. The decision appealed from is modified in accordance with the views herein expressed. MINING CLAIM APPLICATION-PROOF. RICO LODE. The affidavits required of an applicant for mineral patent cannot be executed by an agent or attorney, if the said applicant is a resident of, and, at the date of the application, within the land district where the claim is situated. Secretary Vilas to Commissioner Stockslager, February 18, 1889. I have considered the case arising upon the appeal of Charles Naegelin, William Naegelin, and George Naegelin, applicants for patent for mineral entry, No. 237 (Rico lode), Durango land district, Colorado, from your office decision of December 13, 1836, holding said entry for cancellation. The grounds upon which your office held said entry for cancellation are, that the proof that plat and notice remained posted on the claim during period of publication is by affidavit of one O. U. Taylor (a stranger to the record), and that the other affidavits (excepting those of citizenship) are made by one Joseph Wilkinson, the attorney in fact of the claimants. The Revised Statutes (Sec. 2325) provide, among other things, that "any person, association, or corporation who has com. plied with the terms of this chapter, may file in the proper land office an application for a patent, under oath, showing such compliance." This language indicates that such oath must be made, in the case of individual claimants, at least, by the claimants themselves. Again : "The claimant shall file his affidavit, showing that the plat and notice have been posted in a conspicuous place on the claim," during a period of sixty days. This view is rendered more clear, as well as the stringency of this rule somewhat relaxed, by the first section of the amendatory act of January 22, 1880 (21 Stat., 61): Where the claimant for a patent is not a resident of or within the land district where the vein, lode, ledge, or deposit sought to be patented is located, the application for patent, and the affidavits required to be made in this section by the claimant for such patent, may be made by his, her, or its authorized agent, where such agent is conversant with the facts sought to be established by said affidavits. The claimants state, ander oath, that Durango, where the land office is located, is "at least forty-five miles from the mine by the nearest traveled route;" said route leading "over two mountain ridges," and being difficult at any time, during a large portion of the year hazardous, and often entirely impassable;" that said Wilkinson, attorney in fact, "made the affidavits required in said proceedings, because the facts were known to him, and were wholly unknown to either of the said ap. plicants, who could not therefore make the said affidavits ;" and for the same reason Taylor made the affidavit as to posting of notice. Counsel for applicants contends that the decision of Mr. Secretary Schurz, in the case of W. B. Frue et al. (Topsy mine, 7 C. L. O., 20), should be applied to the case at bar. In the case cited, it was suggested that the act of January 22, 1880, was an enlarging or beneficial act, and should therefore be liberally construed; and it was held to apply for the benefit of an entryman who at the time of making the requisite affidavit was temporarily absent from-i. e., not "within"-the land district in which the mine was located. It is urged that as it is much more difficult to reach the land office at Durango from the Rico mine, than it would be to reach it from many places outside of the land district, the decision of your office is inconsistent, in that it "discriminates in favor of non-residents and against residents." The ruling in the case of the Topsy mine can not apply to the case at bar; for here the applicants were residents of the Durango land district, and, at the date of the execution of the affidavits in question, were "within" said district. In my opinion the act of January 22, 1880, can not, by the utmost liberality of construction allowable, be construed to include any person not either a non-resident of the district, or at the time of making the affidavits required by law temporarily at least beyond its limits. The hardship of the rule lies in the statute, which the Department can but follow. Ita lex scripta est. I therefore affirm your decision. PRE-EMPTION FILING-HOMESTEAD ENTRY. IDDINGS v. BURNS. A homestead entry may be allowed for land covered by a pre-emption filing, subject to the rights of the pre-emptor. The filing of a homestead application and preliminary affidavit, unaccompanied by the requisite fees, is not sufficient to work an appropriation of the land under the homestead law. Secretary Vilas to Commissioner Stockslager, February 18, 1889. I have considered the appeal of William T. Iddings from your office decision of July 2, 1886, dismissing his application to make homestead entry for the SW., Sec. 29, T. 25 S., R. 17 W., Larned land district, Kansas. The records show that Patrick Sweeney filed declaratory statement for this land February 23, alleging settlement February 22, 1884. On December 21, 1885, he published notice of his intention to make proof February 17, 1886. January 26, 1886, William T. Iddings filed an affidavit protesting against the acceptance of any proof to be made by Sweeney for the rea son that Sweeney was not a qualified pre-emptor, having moved from laud of his own in Kansas to the land covered by his pre-emption filing. On the same day Iddings made the usual homestead application to enter said land, and accompanied the same with the usual homestead affidavit. Upon the back of the application is the following endorsement: This application and affidavit was this day presented for record and is held in abeyance pending the final proof advertised by Patrick Sweeney to be made at this office Feb. 17, 1886, based on his D. S. 4177 for same tract. The within applicant has also filed in the case his supplemental affidavit and protest hereto attached. This endorsement is made at the request of the atty. for this applicant, no money being tendered with the papers. W. R. BROWNLEE, Register. Sweeney did not make proof February 17, the day named in his notice, and Iddings again presented his homestead application upon which I find the following endorsement. This paper to enter the within described tract as a homestead was presented to be made of record and rejected this 17th day of Febr'y 1886, for the reason of existing homestead entry No. 9882 made Feb. 13, '86 by Mary Burns for said tract-30 days allowed for appeal. Iddings appealed from said decision and deposed: H. W. BICKEL, Receiver. The rejected application and protest referred to were filed in the land office with the understanding on the part of the appellant that no further action would be taken until Feb. 17, 1886, at which time he was present in person and with witnesses to prove the allegations set up in his protest referred to; to cross examine the witnesses of Sweeney and to resist an illegal entry on his part for said tract of land and to again apply to have appellant's homestead entry made of record. Appellant then learned for the first time, namely Feb. 17, 1886, that one Mary Burns had made homestead entry for said tract-No. 9882-Feb. 13, 1886, or four days prior to the time advertised by Sweeney to make final proof, at which time appellant again applied to have his homestead entry made of record which was refused. Three grounds of error were alleged by the appellant, viz: 1. It was his protest that first gave notice to the government of Sweeney's "meditated and attempted" fraud, and his homestead application and affidavit being then on file in the land office pending the proof of Sweeney no adverse claim could attach as against appellant between the time he made application to enter, January 26, 1856, and February 17, 1886. 2. His application held in abeyance till Feb. 17, 1886, pending the final proof advertised to be made by Sweeney on that date appropriated this land as against Mary Burns and all other persons except Sweeney. 3. The entry of Mary Burns is void as against the prior application of appellant. 16148-VOL S. -15 |
