parole, he would be entitled, in computing residence on his homestead entry, to credit for his full term of enlistment, provided always, that at least one year's residence is had on the homestead(*). The entire term of enlistment, without reference to when the war of the rebellion closed, Toverns in computing the time in a soldier's homestead entry. After a soldier's widow makes a homestead entry, as such, she may marry without losing the credit of her first husband's term of enlistment("). A married woman under the age of twenty one years, who is the child of a deceased person, qualified, if living, to make "a soldier's homestead," is a minor orphan child, within the meaning of section 2307, R. S.(©). The same forms are used in homestead entries made for minor orphan children of deceased soldiers as in other homestead cases, the application being signed by the guardian for the benefit of the children, who must be named. The guardian must appear at the local land office, and make the required affidavit, unless he, or some one of the minor children, are actually residing on the land applied for, in which event it may be made before the clerk of the court for the county in which the land is situated. In case the minor child or children should become of age before final proof is made, they are not required to establish residence on the land. None but the widow or minor orphan children can derive any benefit of a deceased soldier's service in the army in making an original homestead entry(d). The patent in a homestead entry made by a guardian for the benefit of the minor orphan child of a deceased soldier, must issue to the beneficiary whether he or she is of age at date thereof or not(e). Where a guardian makes a homestead entry for the minor orphan child of a deceased soldier, and said child becomes of age prior to time of making final proof, the final affidavit must be made by the beneficiary(). A certificate of right to make a soldier's additional homestead entry for 19.85 acres may be located on a 40-acre tract, by paying for the excess in cash. In locating soldiers' certificates the general rule is that they can take their face value or lots containing twice as much, or any quantity less. Thus a 72 acre certificate will locate 15 acres or less quantity(8). A soldier's additional homestead entry cannot be made upon lands on which are located the house and other improvements of an actual settler who has asserted his right to the land by a pre-emption filing or homestead entry(1). Act of June 16, 1880 (p. 51.). A contest with the government on allegation of fraud is not a contest with adverse claims, and cannot be brought within the act of June 16, 1880, allowing repayment for erroneous entries(1). Repayment will be allowed under act of June 16, 1880, where a second and therefore illegal homestead entry was made through ignorance of the law(3). Act of March 3, 1879. (p. 27.) A woman having married is not disqualified from making a homestead entry under Act of March 3, 1879, who would otherwise be qualified (*). The Act of March 3, 1879, includes widows and all who succeed to the right of the claimant(1). A party whose original entry has been canceled, has no rights under the law of March 3, 1879(m). (*) O. H. Quimby, Land Owner, Vol. 10, p. 394. (h) Brooks vs. Tobien, Land Owner, Vol. 10, p. 5 When an additional homestead entry is made under the Act of March 3, 1879, the land em braced need not be actually cultivated to crop(). A party who entered 80 acres of land under the homestead laws, and received patent there or cannot relinquish his entry and make another one under the act of March 3, 1879(Þ). Because part of the land in a homestead entry is beyond a railroad grant, should not prevent an additional homestead entry under the Act of March 3, 1879(©). Under Act of March 3, 1879, no credit is allowed for settlement prior to entry(a). Under same act a homestead entry was allowed notwithstanding no settlement was made under original entry(*). Parties making new or additional entries under the Acts of March 3, 1879, and July 1, 1879, have seven years within which to make final proof(). (*) Eben M. Gordon, Land Owner, Vol. 9, p. 148. (b) George G. Brewer, Land Owner, Vol. 11, p. 4. (Benjamin Geyler, Land Owner, Vol. 9, p. 116. 5 (4) John Casson, Land Owner, Vol. 8, p. 35%, CHAPTER IV. PRE-EMPTIONS. I. Pre-emption Claims. The principal difference between the homestead and the pre-emption privilege is: 1. That beyond the small fees and commissions to the Registers and Receivers, nothing is paid for the land homesteaded, whereas $1.25 or $2.50 per acre in money or its equivalent must be paid for the land pre-empted. Formerly the homestead right commenced from date of entry at the local land office, while the pre-emption right was initiated by settlement on lands subject thereto. But by Act of Congress of May 14, 1880 (see last chapter), a homestead claim is allowed to relate back to date of settlement, like a pre-emption claim. The principal resemblances are: 1. That certain time is allowed after the first papers are filed in the land office within which final proof must be made. 2. Residence and cultivation and improvements are necessary to secure title. 3. Settlement may be made on unsurveyed land. Formerly the homestead right could attach only to surveyed land. In this respect it then differed from the pre-emption right. At present there is no such difference between the two kinds of claims. Pre-emptions are admissible to the extent of one-quarter section or one hundred and sixty acres of "offered" and "unoffered," "minimum" and "double-minimum "(a) lands, and upon any of the unsurveyed lands belonging to the United States to which the Indian title is extinguished, although in the case of unsurveyed lands no definite proceedings can be had as to completion of title until after the surveys are extended and officially returned to the district land office. Where the tract is “offered" land, the party must file with the district land officers his declaratory statement as to the fact of his settlement within thirty days from the date of said settlement, form below, and within one year from date of settlement must appear before the Register and Receiver and make proof of his actual residence on, and cultivation of, the tract, and secure the same by paying cash, or locating thereon military bounty-land warrants, or agricultural-college or other scrip, according to law. I, the DECLARATORY STATEMENT FOR CASES WHERE THE LAND CLAIMED IS SUBJECT TO of to sale at the land office at being PRIVATE ENTRY. have, since the first day of A. D., 18, settled and improved quarter of section No. in township No. of range No. in the district of lands subject and containing acres, which land had been rendered subject to private entry prior to my settlement thereon; and I do hereby declare my intention to claim the said tract of land as a pre-emption right, under section 2259 of the Revised Statutes of the United States. Given under my hand this In presence of - day of A. D., 18-. Where the tract has been surveyed and not offered at public sale, the claimant must file his declaratory statement within three months from date of settlement, and make proof and payment within thirty months after the expiration of the three months allowed for filing his declaratory notice, or, in other words, within thirty-three months from date of settlement. Where settlements are made on unsurveyed lands, settlers are required, within three months after the date of the receipt at the district land office of the approved plat of the township embracing their claims, to file their declaratory statement with the Register of the proper land office, as in cases of unoffered land above, and thereafter to make proof and payment for the () These four terms were explained in the first chapter. (66) tract within thirty months from the expiration of said three months. The local officers usually publish a notice when the plat is filed. When two or more settlers on unsurveyed land are found upon survey to be residing upon, o to have valuable improvements upon, the same smallest legal subdivision, they may make joint entry of such tract, and separate entries of the residue of their claims. This joint entry may be made in pursuance of contract between the parties, or without it. I, the of " being quarter of section No. have, on the in township No. and containing day of DECLARATORY STATEMENT FOR CASES WHERE THE LAND IS NOT SUBJECT TO PRIVATE ENTRY. A. D., 18-, settled and improved of range No., in the district of lands subject acres, which land has not yet been offered at public șale, and thus rendered subject to private entry; and I do hereby declare my intention to claim the said tract of land as a pre-emption right under section 2259 of the Revised Statutes of the United States. Given under my hand this to sale at the land office at day of A. D., 18 In presence of a. WHO ARE QUALIFIED PRE-EMPTORS. The pre-emption privilege is restricted to heads of families, widows, or single persons over the age of twenty-one, who are citizens of the United States, or who have declared their intention to become citizens, as required by the naturalization laws. This does not include Indians, except such as have ceased their tribal relations and been declared citizens by treaties or acts of Congress. Those are excluded who own three hundred and twenty acres of land, who have left agricultural land of their own (not a town lot) in the same State or Territory, and those who intend to settle for the purpose of speculation instead of cultivation and residence.* If a single woman marry after filing her declaratory statement, she abandons her right as a pre-emptor(*). Under the pre-emption laws, the "head of a family" means the actual living head of a family. A deserted wife or one whose husband is a confirmed drunkard may be the head of a family(Þ). A married woman who has minor children and has been abandoned without cause by her husband and left to support and maintain herself and children, is the head of a family, and entitled to pre-empt in her own name(*). A party's declarations of being a naturalized citizen or having declared his intentions to become a citizen are not competent evidence, though his declarations that he is not a citizen are competent(). A party cannot hold public land as a tenant for a claimant under the pre-emption law(*). b. SETTLEMENT AND FILING. From the moment a claimant enters upon land subject to pre-emption with the intention of remaining and entering the land according to law, and does some act showing such intention, he is a settler('). Such act may consist in erecting a house, clearing timber, building fences, etc. Having made a settlement, his next step towards securing title is the filing of his declaratory statement within the time specified, or he will be liable to lose his claim. The pendency of a contest between two pre-emption claimants does not exclude pre-emption settlement and filing. They may be made subject to the decision in the contest pending(6). The filing of a declaratory statement before settlement is a nullity. A settler may file a second declaratory statement for the same tract(1). But one pre-emption right is extended to the settler, and only one declaratory statement can be legally filed by the same party(3). (*) Ellen Allanson, Copp's Public Land Laws, p. 287. (b) Wakeman vs. Bradley, Land Owner, Vol. 2, p. 162 (e) Sarah E. R. Hazelrigg, Copp's Public Land Laws, p. 286. (d) Walker's Heirs vs. California, Copp's Public Land Laws, p. 287. Dilla vs. Bohall, Land Owner, Vol. 4, p. 162. (f) Allman vs. Thulon, Copp's Public Land Laws, p. 690 () Schafer vs. Scheibel et al., Copp's Public Land Laws, p. 292. Wm. L. Philips, Land Owner, Vol. 8, p. 139. (1) Maria Stevens, Land Owner, Vol. 4, p. 39. (3) Minor vs. Briggs, Land Owner, Vol. 4, p. 69. Section 2261, Revised Statutes, forbids second filings where the first is legal. Local officers are directed to allow no second or amended filings without first submitting the facts to the Commissioner of the General Land Office, and after receiving formal authority for such action(*). A declaratory statement can be amended only in case of mistake or misdescription("). To allow a second filing by one who knew his first filing was illegal, and who claims to be benefited by the illegality of his first filing, would be allowing a party to take advantage of his own wrong, and encourage others to wrong-doing, by removing the penalty therefor(). A second filing is allowed in case of a minor, a bona fide settler, on becoming of age, as an amendment, to correspond with the facts of his legal settlement, provided there is no adverse claim(4). Where a party filed on land not habitable for agricultural purposes, but which was clearly swamp land, a second filing will be allowed on land properly agricultural in character(®). In case it satisfactorily appears that a pre-emption settler has made an error in his declaratory statement, so that a tract he has improved has been excluded therefrom, he is allowed to amend his declaratory statement so as to include said tract, subject to an adverse claim(′). A pre-emptor who has misdescribed the land embracing his residence and improvements, is allowed to amend, unless by his own laches, negligence or declarations, he has barred his right in favor of an adverse interest(). A widow who, by mistake, filed a declaratory statement in her own name, instead of for "the heirs," will be allowed, on a proper showing, to amend her filing. Such mistake does not operate to defeat the rights of the heirs under the pre-emption laws(1). A declaratory statement on file in the proper office is notice to the world of the location and extent of a pre-emption claim; and no subsequent amendment, except for error or mistake, can operate to defeat a right initiated prior to such amendment(1). A party whose application to file a declaratory statement is rejected has a right to appeal. His failure to do so will conclude any right he may have had to the land claimed at the time of such refusal(). All rights of pre-emption existing in any person upon land in a township offered at public sale are extinguished on the day appointed for the commencement of the sales, if not asserted prior to the date of sale, and no rights can descend to heirs based upon settlement prior thereto. Land designated as mineral, but actually agricultural in character, is only subject to preemption after its segregation from the mineral lands by the Secretary of the Interior(*). After land has been proclaimed, no filing can be received until after the offering-provided the land still remains unsold. A party settled on unsurveyed land. When a certain township was surveyed, a part of his claim was found therein, the balance being in an adjoining unsurveyed township. The settler filed for the portion of his claim which was surveyed, and gave notice that he claimed land in the adjoining unsurveyed township. The time within which, by law, he was required to prove up his claim was about to expire, and the other township had not been surveyed; it was held by the Land Department that after the other township should be surveyed, and the plat thereof returned, the settler should be allowed the usual time within which to file his declaratory statement and prove up and pay for his entire claim(1). A pre-emption settler on unsurveyed lands is not bound to file his declaratory statement until after an approved survey has been made which shall enable him to describe the land claimed by proper legal sub-divisions. Where part only of his claim has been surveyed, he is not bound to (s) D. C. Brownell, Land Owner, Vol. 4, p. 41. (8) Ibid. (f) Instructions, Land Owner, Vol. 5, p. 148. (1) University of Cala. vs. Block, Copp's Public Land Laws, p. 322. (2) Brown vs. White, Copp's Public Land Laws, p. 298. (*) Tong vs. Hall et al., Land Owner, Vol. 3, P. 3. (1) Wm. McHenry, Copp's Public Land Laws, p. 295 |