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VOL. X.

COPP'S LAND OWNER.

Entered at the Post Office at Washington, D. C., as second-class matter.

THIS NOTICE MARKED with a blue or red pencil indicates that your subscription expires with this issue, and if you wish the paper continued without interruption, you should remit your renewal subscription at once.

Parties renewing their subscriptions will find it

WASHINGTON, D. C., JULY 1, 1883.

THIS paper furnishes more valuable law information for less money, and is read by more land attor neys and real estate dealers, by more homestead, pre-emption, and other land claimants, and by more mine owners, engineers, and superintendents, than any other publication in the United States.

ALL Registers and Receivers of the U.

advantageous to send $1.00 for their card in the Land S. land offices are authorized to receive

Directory one year.

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MINES AND MINERALS.

Wilson H. Henry, et al.-T. M. Empy et al......

102

subscriptions for this paper.

A CORRESPONDENT wishes to purchase a copy of Copp's Public Land Laws, edition of 1875. Address LAND OWNER office.

THE building fashion of the day is colossal apartment houses. In London, the erection in Victoria strect continues of large houses divided into flats. In New M. E. Parker & Co.-J. W. Jones-Citizenship... 103 York a contract has just been signed for

HOMESTEADS.

N. C. Johnson-James A. Jones-Augustus Smith
-Whitney vs. Maxwell..

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one on the northwest corner of Fifty-
seventh street and Seventh avenue (not
far from the Nevarro Buildings), to cost
$550,000. The plans shows a ten-story
105 edifice 100 by 150 feet, with a single grand
entrance in the French renaissance style.
The floors are arranged for four families,
106 and one of the special features is to be
107 the grouping of the parlor, dining-room,
reception-room, and main chamber. As
this structure is to be built on the "du-

108 plex " plan, the rear portion will be fifteen.
stories high-fire-proof, of course.

109

110

110

U.S. Circuit Court, District of Colorado-St.
Louis Smelting and Refining Co. vs. Green et al. 110
Ninth Circuit, District of California- United
States vs. Central Pacific Railroad Co

Mineral Patents Issued

Cash Patents Issued

Homestead Patents Issued..

PROFESSIONAL CARDS.

Redington & Hill, Washington, D. C.......

Curtis & Burdett, Washington, D. C..

Capt. John Mullan, San Francisco & Washington.
D. H. Talbot, Sioux City, Iowa...

Drummond & Bradford, Washington, D. C.
W. K. Mendenhall, Washington, D. C.

No. 7.

nia, from $1,000 to $1,200; Alfred Holmead, D. C., from $900 to $1,200.

THE President has appointed Robert C. Mitchell, of Minnesota, Receiver of Public Moneys at Duluth, Minn., vice W. W. Spalding, suspended.

HENRY ESPERSON, formerly Surveyor General for Dakota, has been appointed Register at La Crosse, Wis.

CAPTAIN JOHN MULLAN, the Washington attorney for the States of California, Oregon and Nevada, gives a liberal share of his attention to claims of settlers and miners on the Pacific coast.

P. J. STROBACH for six years Receiver at Montgonmery, Alabama, starts soon for California, for the double purpose of health and marriage.

SICKLES & RANDALL, whose card is on front page of cover, are meeting with marked success in their numerous cases and contests before the General Land Office and Interior Department.

the Land Directory, states that South JOHN SNODDY, whose card appears in Florida is attracting attention from all parts of the Union with a great land boom at Barlow, the future railroad cen

ter.

GEN. ELLERY C. FORD, who was for six years head of the bareau of Mineral Lands and Mining Claims of the General Land Office, appears in nearly every mining contest of importance before the Land Department.

IN the case of Chandler vs. Sault Ste

TOUCHING the profits, a small strawberry 110 farm near Charleston yielded a larger income than a cotton plantation, and a LUSBY HENRY has left the land service Georgia farmer gets a living from a bed at Leadville, Col., and opened a law office of asparagus. In Tennessee truck-farming at 115 East 5th street. He is a valuais being supplemented by fruit-drying; ble acquisition to the bar of Leadville. In Chattanooga last year they shipped 720,000 pounds. In North Texas they 11have an abundance of early vegetables Marie, published in the last issue, decided 116 and fruits-radishes, onions, strawberries, by the Secretary on the 8th of June last, lettuce, beets, peas, beans, cucumbers, po- Redington vs. Hill were the winning atPAGE tatoes, green corn, cabbages, peaches, apples, plums, blackberries, apricots and grapes. There people are amazed to find that $250 can be realized from an acre in i waxed beans. One man actually cleared $500 from an acre of cabbage.

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Ellery C. Ford, Washington, D. C..

Sickels & Randall, Washington. D. C..

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J. A. Sibbald, Washington, D. C..

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W. J. Johnston, Washington, D. C...

IV

Chas. & William B. King, Washington, D. C..
Walter H. Smith, Washington, D. C...
H. J. Frost, Washington, D. C.................

IV

IV
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torneys. It was one of the hardest fought cases tried in the Department. Chandler's claim under a Porterfield Scrip location was hotly contested by the village of Sault Ste Marie, and also by the Indian Bureau and the War Department. The Indian Bureau claimed that the Indian title had never been extinguished, and the the land for the St. Mary's Falls canal, War Department endeavored to secure PAGE THOS. R. BENTON, D. C., from $1,400 to even going so far as to reserve it by Ex$1,600; Duane E. Fox, Mich.; John N. ecutive Proclamation. Chandler is finally III Mueller, Mich., and August Pohlers, D. C., awarded the land against all these odds, and iii from $1,200 to $1,400; Oscar Newman, owes his success to the untiring efforts of Va., Mrs. E. P. Foster, N. H.; Miss L. B. Redington & Hill, who stuck to the case IV Hamlin, Indiana; Miss Sarah A. Buck-long after most men would have abandoned IV man and Miss S. W. Carson, Pennsylva- it as hopeless.

LAND PERSONALS.
Riddle, Davis & Padgett, Washington, D. C...... IV been made in the General Land Office:
THE following merited promotions have

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PRACTICE.

SOUTHERN PACIFIC RAILROAD COMPANY VS.
WOOD.

which to base an award of the premises in
favor of Wood.

was held by the Circuit Court to be directory only, and the ruling was not disI accordingly vacate your decision and affirmed on appeal, the statutory direction dismiss the appeal therefrom, without pre- should, as a rule, be followed, and I fully judice, to the end that you may proceed approve of your practice requiring surde novo, in accordance with the require- veys to conform thereto in the respect ments of the rules and regulations of your named. office governing the ordering of hearings SECRETARY TELLER to Commissioner McFar-in contested cases. land, June 4, 1883.

Exparte Proof-As the decision of the General Land Office was based upon exparte, hearsay evidence, the said decision is vacated, and proceedings are ordered in accordance with

the Rules of Practice.

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MINES AND MINERALS.

WILSON H. HENRY, ET AL.

End Lines.-The statutory direction that the
end lines of a lode claim must be parallel
should be followed as a rule, but under pe-
culiar circumstances an exception to the rule
may be allowed.

SECRETARY TELLER to Commissioner McFar-
land, May 26, 1882.

An exception has occasionally been made in your practice, and I think the present instance presents a case for a further exception.

There are no conflicting interests, and the question is one between the claimants and the government.

The facts show that the claims are located in a section of the country subject to Indian depredations. Two surveys have already been made, at great expense and under great difficulties, guards being reI have examined the matter of the sur- quired to protect the surveyors from the veys of the claims of William H. Henry hostile Indians. The last survey has been et al., upon the South Virginia, Johnny approved by the Surveyor General, and it Bull, and Sterling Price Mines, located in seems to be correct in all respects except New Mexico, and in connection therewith as to the broken parallel end lines. It is your letter of May 11, 1883, addressed to also reported that the peculiar topog the Surveyor General of said territory, raphy of the country required these variordering an amendment of the survey be-ations to enable a proper survey of the cause "the broken and parallel end lines ciaim to be made. A further survey would of the claims " aforesaid "do not afford a now be attended with even greater exsubstantial compliance with the law." pense, and more hazard, on account of the (See LAND OWNER for June 15, 1883.) renewed violence of the unfriendly Indians.

Section 2320, of the Revised Statutes provides that "the end lines of each claim shall be parallel to each other."

The interests of the claimant, who has already been put to large expense, and who seems to have acted in the utmost good faith, seem to require speedy action in order to protect him from loss.

April 25, 1881, Wood applied at said office to make homestead entry of said lot 9, together with lots 16, 17, and 18, of Sec. 18, Tp. 8, aforesaid, but the Register and Receiver rejected his application because the lot in question was part of an odd-numbered section within the limits of the aforesaid withdrawal. Wood appealed from this action through his attorney, C. C. Paulk, who filed his own affidavit in behalf of his client, alleging upon informa- In the case, in the United States Circuit tion and belief that "in the year 1862 one Court, District of Nevada, of the Eureka Jesse Hill, who was in all respects a le- Consolidated Mining Company vs. the gally qualified preemptor, settled upon Richmond Mining Company, objection and improved the premises," and that was made to the validity of certain patents peculiar circumstances of this case, to disaid Hill resided upon, occupied and cul- because of non-compliance with the pro-rect you to approve the survey now subtivated said lands continuously from the vision aforesaid. It was, however, held mitted to you. year 1862 to the year 1874," when he that, "the provision of the statute of "sold the possession of said land and the 1872 (incorporated into section 2320 aforeimprovements thereon to said David M. said) requiring the lines of each claim to Wood, who took possession of the same in be parallel to each other, is merely direc1874, and who has resided upon and culti-tory, and no consequence is attached to a vated said land continuously ever since, deviation from its direction." (5 Sawand now does reside thereon. *** That yer, 131.) the residence and the most valuable improvements of said Wood are situated on said lot 9 of Sec. 17."

It was further held that "the defect alleged did not concern the defendant, and no one but the government had a right to complain."

I have therefore concluded under the

T. M. EMPY ET AL.

Fraud.-General averments of fraud and wrong-
ful use, without specification or detail, do not
Change of Boundaries.-The taking up of more
present a case for consideration.
width of surface ground for a mining claim
than is allowed by law does not invalidate
the location, and the monument stakes may
be moved to cast off the excess.
Protest. Whatever is fundamental to the pos-
session and right of possession of a mining
claim is remitted to the courts, and parties
who fail to set up an adverse claim to an ap-
plication regularly made cannot protect their
rights by a protest submitted to the Land De-
SECRETARY TELLER to Commissioner McFar-
partment.
land, June 9, 1883.

Upon such ex parte showing you based your decision, holding "that at the time In reviewing the case, on appeal to the of the withdrawal of the land for the Supreme Court, the question as to benefit of the railroad company in 1867, whether the statute was directory only, there was a valid preemption settlement does not seem to have been specially conon said lot 9. It being thus appropriated, sidered. The patents were, however, susno right of the company could attach, tained; and the court said: "Upon the and there could be no withdrawal of the face of the patents the United States has On the 29th ultimo, Messrs. Drummond said tract." granted to the Eureka the right to all and Bradford, attorneys for T. M. Empy, It was not competent however for you reins, lodes, and deposits, the tops or J. R. Adams, Thomas E. Gray, H. N. to base a decision upon the mere ex parte apexes of which lie on the inside of its sur- Toftman, Pasqual Nigro and Joseph Gayhearsay allegations of Wood's attorney, veys as patented, throughout their entire nor, filed an application for an order of nor for him to introduce such affidavit depth, and wherever they may go, pro- certification under Rules 83 and 84 of upon appeal. That should have been done vided it keeps itself within the end lines Practice, of the papers in the mining claim in the first instance, when Wood presented of the survey. The finding that the known as the Gilded Age Mineral Entry, his application. But inasmuch as the ground in dispute is within the end lines, No. 51, Tucson (late Florence) district, affidavit contains a suggestion touching and that the apex is within the surface Arizona, entered by Edward Field and the status of the premises at the date of lines settles the rights of parties between Horatio S. Sanford, October 30, 1880. the withdrawal, I deem it advisable to themselves well under their patents as state that, should the allegations be duly under their compromise agreement." (103 verified by competent proof, I would re- U. S. 139.) gard such facts sufficient grounds upon

Although in the case cited the statute

The entry has been regularly approved by you for patent, all antecedent questions having been adjudicated by you. The claim is situated in the limits of the town

site of Tombstone already entered and patented, but the location is alleged to have been made before the inception of the town-site claim.

The fifth avers a change of monuments that said plaintiffs entered into the actual after location, and after date of the town- possession of all said demanded premises, site entry, without alleging any injury or under and by virtue of said conveyance, prejudice to other rights. on the 3d day, of July, A. D. 1879, and The concluding clause of the sixth and remained in the quiet peaceable and unthe whole of the seventh are general aver- disturbed possession thereof until on or ments of fraud and wrongful use, without about the first day of September, A. D. specification or detail as to how such 1879." And on these findings restitution fraud and use have been actually practiced of the premises was ordered. This judg and enjoyed. These allegations, there- ment was affirmed by the Supreme Court fore, do not present any case for consider- of Arizona, and on March 27, 1882, the ation.. case was dismissed by the Supreme Court of the United States. The judicial tribunals have, therefore, sustained the validity of the location, and it can not be called in question by a protestant at this stage.

All adverse claims presented in court have been disposed of. The present protestants claim generally to be owners of municipal rights and improvements, and residents upon portions of the ground covered by the location, although nothing is set out with particularity as to the exact description, extent and value of such improvements, nor in what manner they Upon the fifth it is only necessary to will be injured by work upon the mining remark that the original location was claim. No copy of the protest is filed as found by the examination preliminary to required by the rule, and the statement of survey on the ground to be more than the attorneys is all that is before me to six hundred feet in width, and the claim show the prima facie case of the protest- was so reduced as to cast off the excess. ants. This protest was made February It can scarcely be seriously urged that 17, 1882, and filed some time in March of such a correction of lines to bring them that year. Two protests had previously within legal restrictions should be held to been filed, and disposed of by your office; invalidate the original location, any more one by the Mayor in behalf of all interests than a settlement claim of pre-emption of the town-site, and the other by one could be held invalid because by mistake Stenchfield and sixteen others, alleging the settler at the first had mistakenly emthe existence of municipal improvements, braced in his filing a larger area than one and that no mineral had been discovered hundred and sixty acres. The rule has in said ground. always prevailed to the effect that he may reduce his claim by proper amendment to include the legal area. So also of homestead entries.

The present protestants, according to their attorneys, set up seven averments. The first three assert that the claim is within the limits of the town-site; that said town-site was entered and patented in 1880, and that the lands "are almost entirely covered by buildings of citizens and residents of said town, protestants all being such residents, and living on the ground covered by the Gilded Age loca

tion."

It is unnecessary to notice further the eleven elaborate points of the argument on the protest. They embrace matters not set up in Empy's case, and travel back through all the objections raised by the previous protests disposed of by you, and not attempted to be brought before me when pending. I find nothing in them, however, which in itself demands supervi sion, and therefore deny the application, and transmit the same with accompanying papers for your files.

HOMESTEADS.

M. E. PARKER & Co.
ACTING COMM'R HARRISON to M. E. Parker &
Co., Carrington, Dak., June, 6, 1883. (S. W. S.)
The rule laid down in circular of March

J. W. JONES.

ACTING COMM'R HARRISON to J. W. Jones
Abilene, Kansas, June 2, 1883. (S. W. S.)
You state that in November, 1875, you

There remains, then, only the question. of alleged want of discovery of mineral within the limits of the claim. This goes to the validity of the location, and is necessarily comprehended in the adjudica- 20, 1883, requiring notice of intention to tion of the application for patent, and the submit final proof to be published once a statutory proceedings attendant upon pub-week for six weeks is adhered to. It will lication and proof. It is clear that objec- not, however, affect cases where the notice The others are as follows: "Fourth: tions of this sort must be presented pend- was ordered to be published for five That neither Field and Sanford nor their ing such period. It is one of the matters weeks, under the old rule, but the district predecessors in interest had discovered a fundamental to the very possession and officers are directed to follow the instrucvein or lode within said claim when it was lo- right of possession, which are remitted to tions contained in the circular referred to. cated; and that no mineral vein or lode had the courts by the filing of an adverse since been discovered within said claim. claim. I should not deem it incumbent "Fifth: That long after the location of upon me to revise your findings on such a said claim and subsequent to the entry of point when the publication has been regusaid town-site, Field, one of the claimants of larly had, in a case where no adverse claim the said Gilded Age, removed and changed had been filed. But in this case there made a homestead entry of eighty acres the position of the original monuments was such adverse claim by a contesting and an additional entry of eighty acres marking the boundaries of said mining mineral claimant, which was regularly disclaim, and took another claim, although the land had been entered, &c. "Sixth: That the said Gilded Age claim was not the being worked as a mine, and never had been so worked, and contained no deposit of ore or mineral bearing rock so far as known, and that the possession of said claim by Field and Sanford was a palpable fraud upon the inhabitants of Tombstone owning houses or residing thereon.

"Seventh: That Field, one of the claimants of said Gilded Age, had theretofore used the same and was then using it for the sole purpose of forcing the inhabitants of the town, living thereon, to pay rent to him, &c."

66

under act of March 3, 1879, in March, missed by the court. Suit in ejectment 1880, and have since made proof on your was also brought by Field and Sanford original entry; that in order to avoid payagainst others who had ousted said plain- ing taxes you do not want to submit final tiffs, and the court, on the 28th of March, proof on your additional entry until re1880, prior to the application for patent, quired to do so, and ask when that will adjudged that the lands were open, un- be. occupied and unclaimed mineral lands of the United States, and subject to location for mining purposes; and that on the said 19th day of December, 1878, James P. Wheeler and John Kratzmeyer entered upon, took up and located, and entered into the possession of the said demanded premises, and remained in the actual possession thereof until the first day of July, A. D. 1879.

"Second. That on the first day of July, The fourth and sixth of these allega- 1879, the said James P. Wheeler and John tions present simply the question of the Kratzmeyer conveyed the said demanded discovery of a lode or vein within the premises, described in plaintiff's comlimits of the claim located, as affecting plaint, to Edward Field and Horatio S. the validity of the location itself. Sanford, the plaintiffs in this action, and

You should submit final proof as soon as qualified under the law to do so. This office will not undertake to state when an additional entry under act of March 3,1879, would be liable to cancellation for failure to submit final proof in time, until a case, involving that point, is properly before it, nor has it any jurisdiction over the subject of state taxation.

CITIZENSHIP.
CoMMISSIONER MCFARLAND to Reg. and Rec.,
Huron, Dak., June 12, 1883. (C. E. D.)

You are advised that hereafter parties desiring to enter government lands under the homestead or timber culture laws, who

are alien born, and state in their affidavits that they have declared their intention to become citizens of the United States, must furnish record proof of the same to accompany their application and affidavit.

N. C. JOHNSON. ACTING COMM'R HARRISON to N. C. Johnson Aberdeen, Dak., June 6, 1883. (S. W. S.) In cases where a soldier made a homestead entry of other than that upon which he filed a homestead declaratory statement under the rule in force prior to issuance of circular of December 15, 1882, and where good faith is shown, this office is not disposed to disturb the entry. I will not, however, attempt to pass upon the validity of any such an entry until the case shall come properly before the office for action.

JAMES A. JONES.

Act of March 3, 1883.-Inchoate Rights.-The act of May 14, 1880, does not apply to homestead settlement on lands not subject thereto. The act of March 3, 1883, touching Alabama Mineral lands, confers no rights except in entries already made. All lands heretofore reported as containing coal and iron that appear on the official records as vacant are subject to public sale, &c. ACTING COMM'R HARRISON to Reg. & Rec., Montgomery, Alabama, June 8, 1883. (C. T. Y.) I have considered the appeal of James A. Jones, from your decision of Mch. 17, 1883, rejecting his application to enter as a homestead the E. N. W. S. W. 4 N. W. and N. W. S. W. of Sec. 2, 16 S., 6 E., on the ground that the land is classed as coal, etc.

The evidence shows that said Jones made settlement upon said land in the year 1871; that he has a dwelling house thereon and has cultivated one acre; total improvements being valued at $25.00. Appellant grounds his appeal upon the claim that, prior to the passage of the act of Mch. 3, 1883, he had an inchoate right under act of May 14, 1880, to enter said lands with settlement relating back to 1871, thus acquiring a vested right in and to said lands; and that the act of Mch. 3, 1883, was intended as a protection to all vested rights, equitable as well as legal.

Said lands were reported to this office several years ago as valuable for mineral, and ordered to be withheld from disposal under the mineral land laws; therefore appellant's position as shown above is not a true one, as the act of May 14, 1880, has no application to a settlement on lands not subject to homestead entry, which was the condition of the land in question. Again, the act confers no right except in cases of entries actually made. Congress has specially legislated for this class of lands, thereby cutting off or defeating any rights that ordinarily would have enured to the settler who had failed to file his application at the local office prior thereto. The act of Mch. 3, 1883, provides that all lands heretofore reported as containing coal or iron shall be offered at public sale, etc., referring to vacant lands, i. e., lands that appear vacant on the records.

Upon a legal construction of the stat- it seems, for the express purpose of enute, I am of the opinion that the applica- abling claimants in the absence of a comtion of Mr. Jones cannot be allowed; pliance with the law to acquire title to the therefore your decision is affirmed and the land by payment of cash therefor. appeal dismissed.

AUGUSTUS SMITH.

Fraud-Act of June 15, 1880.-A question of fraud and illegality in a homestead entry. COMMISSIONER MCFARLAND to Reg. and Rec., Montgomery, Ala., June 18, 1883. (H. C. S.) I have considered the case of the United States vs. Augustus Smith, involving his homestead entry made April 14, 1877, for the S. W. of N. E. and S. E. of N. W. 4, sec. 4, 17 S., 3 W., and the validity of his cash purchase thereof, under the 2d section of the act of June 15, 1880, cash entry No. 16,992, June 20th, 1881.

There is no evidence in the record, that the land involved is coal or mineral land, though it seems to be situated in a part of the state where coal has been discovered and probably mined.

As to the attempted transfer by Smith to John H. Brown, when the matter was before this office for consideration, it was decided, in substance, that the alleged transfer was not sufficient to entitle Brown to the benefits of the act of June 15. 1880 (vide office letter of June 9, 1881). No appeal therefrom having been taken, the question of transfer assumed the nature of a res judicata and should be eliminated from

further consideration.

A hearing in said case was directed by As to the issue of collusion, the evioffice letter of Dec. 12, 1881, upon infor- dence shows that John T. Milner purmation from the Special Agent, to the ef- chased, through the agency of other parfect that said entry was fraudulent in its ties, said land from Smith, which was coninception, and maintained and perfected tracted for prior to Smith's application to by a collusion between certain parties purchase under act of June 15, 1880, but with the intent of defrauding the Govern- not deeded to said Milner until subsequent ment, etc. The hearing was set for Feb. thereto. It appears that the motive that 12, 1882, postponed to March 20, 1882, prompted the purchase, was to build a and again postponed to June 27, 1882, railroad across the land for the purpose when Augustus Smith, John H. Brown, of connecting with adjoining lands owned Richard C. Bradley, John T. Milner, by said Milner, and not with any fraudulent Howard Douglas and Gilbert Jacks ap- intent. peared at your office and gave their testimony. From the evidence adduced you decided in substance:

That Smith's original entry was fraudulent at its inception, that he had not complied with the law as to residence and improvement, and that John T. Milner by his agents furnished said Smith the money with which to make said cash entry, the latter thereafter to convey the land to him for a consideration of $300 per acre.

The testimony and Smith's original homestead affidavit establish the fact that the said affidavit was not made in conformity with sec. 2294 R., S., U. S. This fact would no doubt render the homestead entry illegal because not made according to law, and would be good cause for cancellation of the same, but per se, is not evidence of fraud, and there is no other evidence in the record that establishes fraud in the entry at its inception. Smith simply abandoned the land after entry, and afterwards at the instance of John H. Brown, relinquished the same, and attempted to make a transfer to him. Brown, who is the real complainant in this case, does not testify that this entry was made in his interest, even though he loaned Smith the money with which to pay the fees, commissions, and other expenses incident to the entry.

I conclude therefore, with the whole record before me, that Smith's entry was not fraudulent at its inception, and so decide.

The irregularity or even illegality of the homestead entry at its inception is in my opinion no bar to a purchase of the land embraced therein, under the 2d sec. of the act of June 15, 1880, as that act was passed,

The act of June 15, 1880, permits settlers who have failed to comply with the homestead laws to acquire title by purchase, provided the land was properly subject to such orignal entry and no subsequent adverse right has attached thereto, unfettered, however, by parol agreement of alienation to third parties; therefore the fact that Smith contracted to convey said land, does not disentitle him to the benefit of said act; further, the mere fact that Smith, subsequent to the issuance of the final receipt, conveyed by deed his interest in said land, does not in the absence of fraud invalidate his entry. Such evidence is irrelevant to the issue, except it forms part of the res gesta.

In summing up the testimony I am of the opinion that the issue of fraud and collusion has not been established, therefore, the hearing is hereby dismissed.

WHITNEY VS. MAXWELL. Homestead Entry-Act of June 15, 1880-Contestant-While a homestead entry remains uncanceled, another entry of any kind cannot be allowed. A contestant acquires no right until an entry is canceled. The cash entry in question by the heirs is allowed to stand. SECRETARY TELLER to Commissioner McFarland, June 13, 1883.

I have considered the appeal of James M. Whitney from your decision of July 3, 1882, approving the purchase by the heirs of George H. Maxwell, deceased, under the act of June 15, 1880, of the N. of the N. E. and the S. W. of the N. E. of Sec. 25, and the S. E. of the S. E. of Sec. 24, Tp. 6, R. 3, Deadwood, Dakota, and also the appeal of Hiram Mahoney

from the same decision, involving the same, section 8, the N. of N. W. of 17, about thirty-five acres of breaking, paying lands, holding his entry for cancellation. and the N. E. 4 of N. E. of 18, 3 S., 79 therefor one hundred and forty dollars. It appears that George H. Maxwell W., Central City, Colorado, on appeal by He took immediate possession of the land made soldiers' homestead entry of the Guyşelman from your decision of 6th and moved his effects into the house. In tracts March 20, 1879, and died January 1, November, 1882, refusing to order a hear- June following he commenced erection of 1881; that Whitney commenced a contest ing to determine their respective rights a frame house, which he completed in Sepagainst this entry January 27, 1882, al- in advance of any application by him to tember, and into which he moved in Deleging Maxwell's death and abandonment make proof and payment for the land un-cember. During the summer of 1879 he of the tracts, and that on March 6th der his pre-emption claim, each of the cultivated more than twenty acres and following, on the day assigned for, but other parties having made additional broke ten additional acres, and otherwise before the hearing, David B. Maxwell, in homestead entry for a portion of the land improved the land. He also cultivated a behalf of himself and the other heirs at covered by his filing. portion of it in the season of 1880. Prior law of George H. Maxwell, (who left It has been the invariable practice from to November, 1880, he labored most of the neither widow nor children), applied to the beginning to allow any legal form of time for other people to acquire means for purchase the tracts under the second sec- entry upon land covered by a pre-emption improving the land, and chiefly resided tion of the act of June 15, 1880. The filing, and hold the same subject to the with such people, being occasionally only, proceedings in contest were thereupon right of the pre-emptor to make final and not continuously, on the land. His suspended by agreement of parties to proof and payment within the prescribed family removed from Iowa at the date last enable the local officers to take your in-period. So that, even if the right to named, since which time he and they have structions in the matter. On July 3d make such payment were fully proved continuously resided thereon. Were not following you authorized the heirs' pur- there could under the rules be no cancel- his good faith apparent from his purchase, chase of the tracts, and on August 26th lation until the claimant had paid his cultivation and improvement of the tract, they made cash entry therefor. Whitney money, and secured for himself a vested the claim of Hodson, that he had not suf and Mahoney appealed from your decision, right in the land. The law of March 3, ficiently complied with the law in respect and no further proceedings have been had 1879, (20 Stat., 472,) now requires publi- to residence to save his filing from forin the contest. cation of intention to make such proof, feiture, might be of some force. But as and since its passage a hearing fixed by the Register and Receiver, or by your office, for the purpose of allowing it to be made in any other time and manner would not be legal. And under the rule referred to by you as laid down by this Department in Hanson v. Berry, February 20, 1882, (8 COPP, 188,) and since adhered to there can be no propriety in cumbering the records of the office with files and recital of proceedings not required by law nor by the circumstances of the case, and entirely The only question is, therefore, between unnecessary for the protection of individWhitney and the heirs of George H. Max-ual rights. The matter of hearings is also well, and the former has no right by by the rules confided to your sound discrevirtue of his contest, which is his only tion, and although a refusal to grant a trial claim. The case of Gohrman vs. Ford may, if it amount to a denial of right, be (Copp, April, 1881), and subsequent de- appealed from, your judgment upon the cisions of this department, are to the propriety of such action will not be lighteffect that a contestant acquires no rightly reversed, and will be set aside only under the act of May 14, 1880, or other upon the most substantial grounds of law, prior to cancellation of the entry he error. contests, and that the entryman may purchase at any time prior to cancellation of his entry under the act of June 15, 1880. His entry remaining intact on the records, George H. Maxwell, if living, might have Good Faith-Prior Settler vs. Prior Resident.— purchased at the date of application therefor by his heirs, and this right descends to them upon his death under Section 2291 of the Revised Statutes. I affirm your decision.

On February 7, 1882, Mahoney was permitted to make homestead entry of the tracts subject to Maxwell's entry and to Whitney's contest. This entry was clearly erroneous. A homestead entry is a segregation and an appropriation of the land covered by it, and while it remains uncancelled the land is not subject to further entry. Mahoney's entry made during the existence of Maxwell's entry was illegal, and I affirm your decision holding it for cancellation.

PRE-EMPTIONS.

GUYSELMAN vs. SCHAFER ET AL. Hearing. Other Entries.-Any legal form of entry is allowed on land covered by a preemption filing, subject to the pre-emptor's rights. The Commissioner's refusal to order a hearing, if it amounts to the denial of a right, may be appealed from to the Secretary of the Interior. SECRETARY TELLER to Commissioner McFarland, June 7, 1883.

I have considered the case of George R. Guyselman vs. J. R. Schafer and Oren H. Henry, involving the S. E. of S. W.

Your decision is accordingly affirmed.

HODSON VS. VAUGHN.

In view of the pre-emptor's prior settle-
ment and continuous cultivation, the land is
awarded to him notwithstanding his defective
residence.

SECRETARY TELLER to Commissioner McFar-
land, June 13, 1883.

held in McInnes vs. Strevell (COPP, December, 1882), there may be a valid settlement without residence. If the settler does acts on the land indicative of an intention to claim the benefits of the preemption law, and afterwards within such reasonable time as manifests a purpose to comply with the law, commences residence thereon, such residence relates back to his original settlement, and his right will not be forfeited. And as the prior settler and not the prior resident has the better right, and as Vaughn was occupying and improving the tract, claiming it as his home, at the date of Hodson's entry, and residing thereon a portion of the time prior to November, 1880, and continuously thereafter, his whole conduct manifesting a purpose to retain the land and comply with the law, he must be held the prior settler. with the superior right.

I affirm your decision.

C. M. BIRD. ACTING COMM'R HARRISON to Reg. and Rec., Salt Lake City, Utah, June 8, 1883. (P. H. S.) The pre-emption affidavit accompanying cash entry No. 2403 of C. M. Bird, is herewith returned. The act of June 9, 1880, requires that such affidavits, when not sworn to before either of the local I have considered the case of Eleazar of the county court, or of any court of officers, shall be sworn to before the clerk Hodson vs. Adelbert Vaughn, involving record, etc. This affidavit was sworn to the S. E. of Sec. 32, Tp. 3. R. 14 W., before the Probate Judge. If he is ex Kirwin, Kansas, on appeal by Hodson officio clerk of his own court that statefrom your decision of May 25, 1882, hold- ment should follow his signature to the ing his entry for cancellation. jurat. If not, a new affidavit, executed in conformity to law, must be furnished.

Vaughn filed declaratory statement for the tract May 9, alleging settlement May 2, 1879, and Hodson made homestead entry July 28, 1879.

The testimony shows that in April, 1879, Vaughn purchased the possessory right of a former claimant of the tract and the improvements thereon, consisting of a "dug-out" house and out-buildings, and

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