homestead entry for the NW. of Sec. 27, T. 103 N., R. 48 W., Mitchell, South Dakota.

December 2, 1896, Kuper made homestead entry. From January 7, 1897, to December 2, 1898, the entry was suspended. Contest proceedings were then instituted by Isaac N. Fry, which were dismissed by departmental decision of November 19, 1900 (unreported). October 7, 1899, Kuper submitted commutation proof, which was held by the local office under rule 53 of practice until close of the contest. It appears from the commutation proof that Kuper claimed residence on the land only from December 19, 1898, to the time of final proof, a period of nine months and eighteen days. Your office decision held: Commutation proof is premature when made less than fourteen months after actual residence on the land was commenced. See act of June 3, 1896 (29 Stat., 197) .... The entryman, it appears, was misled by the local officers, but neither their ignorance of the law nor the charge of duress can cure this defect . . . . In · view of the facts above recited, he will be allowed thirty days from receipt of notice to return to the land and complete a residence (which added to his former residence) will amount to fourteen months, after which he may submit supplemental final proof, and the same will be duly considered by this office.

Kuper appealed, and cites this ruling as error. The argument is that a homestead entryman may commute his entry "after six months constructive residence and eight months actual residence." Citation is made to circular of July 9, 1896 (26 L. D., 544), wherein it is said, respecting the act of June 3, 1896 (29 Stat., 197), that:

The second section of the act modifies the provisions of section 2301, Revised Statutes, as amended by the act of March 3, 1891, supra, so as to permit the commutation of homestead entries upon a showing of fourteen months' compliance with the homestead law after the date of settlement, instead of after the date of entry, as formerly required. Constructive residence from the date of entry will be recognized where settlement is made and residence established within six months thereafter.

Section 2 of the act of June 3, 1896 (29 Stat., 197), provides: "That all commutations of homestead entries shall be allowed after the expiration of fourteen months from date of settlement."

Nothing in the act indicates, or justifies, a different interpretation of it, where one commutes an entry after fourteen months' compliance, from that given where one consummates an entry in due course after five years' compliance. The Department in construing the act in question in the circular of July 9, 1896, supra, gave it the construction that the fourteen months' compliance of one commuting an entry may be of like character as of one consummating an entry, saying that:

Constructive residence from the date of the entry will be recognized where settlement is made and residence established within six months thereafter.

No decision of the Department is found holding otherwise. It therefore is held that a commuting entryman is, equally with others, entitled to credit for constructive residence during the first six months of his entry.

Is the entryman within the rule so announced?

January 7, 1897, being not yet advised of Kuper's entry, your office directed the local office to withhold said tract from disposition until further advised, which the local office received January 15, and the same day reported to your office Kuper's entry. February 1, 1897, William H. Fry filed an application for reinstatement of his previous timber culture entry, on the ground that its cancellation was premature, which was, March 27, 1897, granted by your office, and Kuper was required, within sixty days, to show cause why his entry should not be canceled. This rule was served April 2, 1897, and Kuper appealed. October 18, 1898 (27 L. D., 547), your office decision was reversed, Fry's application denied, and Kuper's entry held intact. December 2, 1898, Fry began contest against Kuper's entry on ground of abandonment. The contest was dismissed on Kuper's appeal to the Department, by its decision of November 19, 1900 (unreported), upon the ground that it was prematurely brought, it being held by said decision that Kuper's

entry was suspended during the period from January 7, 1897, until the decision of the Department, October 18, 1898, denying Fry's motion for reinstatement and holding Kuper's entry intact.

It was adjudicated that Kuper, although he did not establish actual residence on the tract until December 19, 1898, occupied the status of a resident on the land January 7, 1897, when the entry was suspended, and by reason of the suspension was excused from actual residence until October 18, 1898, so that, excluding the time of such suspension, he established actual residence within six months from the date of his entry, and that he was never in default, but in view of the law was continuously resident of the land. His expensive and persistent assertion of right, in face of a contest, sufficiently attests his good faith in seeking the land for a home. He is therefore entitled to the benefit of the six months' constructive residence.

The heirs of Fry, the deceased contestant, also appealed from your office decision, assigning as error therein that hearing is thereby denied upon their contest filed January 22, 1901, alleging abandonment by Kuper subsequent to October 7, 1899. Residence subsequent to final proof, found to be satisfactory and sufficient, is not required. Your office decision rejecting Kuper's final proof is reversed.

RAILROAD GRANT-ADJUSTMENT-ACT OF JULY 1, 1898.

BROWN. NORTHERN PACIFIC RY. Co.

The act of July 1, 1898, is limited to conflicting claims upon odd-numbered sections in either the granted or indemnity limits of the Northern Pacific land grant; hence conflicting claims to lands in an even-numbered section are not subject to adjustment under said act.

6855-Vol. 31—02—11

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) December 6, 1901. (F. W. C.)

Your office letter of July 15, last, presents the facts with regard to the conflicting claims of Benjamin F. Brown and the Northern Pacific Railway Company to the NE. of Sec. 22, T. 9 N., R. 10 W., Helena land district, Montana, with request for instructions as to whether said claims are subject to adjustment under the provisions of the act of July 1, 1898 (30 Stat., 597, 620).

From the statements contained in your said office letter it appears that this tract was selected by the Northern Pacific Railroad Company on November 14, 1882, under the provisions of the act of June 22, 1874 (18 Stat., 194), in lieu of the E. of SE. 4, Sec. 19, T. 13 N., R. 11 W., and the S. of SW. of Sec. 29, T. 11 N., R. 3 W., State of Montana.

On October 20, 1897, Brown tendered a homestead application for said NE. of Sec. 22, which was rejected by the local officers for conflict with the pending selection by the Northern Pacific Railroad Company, from which action he duly appealed, and on June 6, 1899, he filed his election to retain said tract under the provisions of the act of July 1, 1898, supra, alleging that he settled upon the tract in November, 1893, and that he has made improvements thereon to the value of about $600.

The act of July 1, 1898, is limited to conflicting claims upon oddnumbered sections in either the granted or indemnity limits of the Northern Pacific land-grant, and in the opinion of this Department the case, as submitted by your office letter, is not subject to adjustment under said act and you are, therefore, directed to adjudicate said case without regard thereto.

OKLAHOMA LAND-HOMESTEAD-EXCESS AREA-ACT OF MAY 17, 1900.

ROBERT F. BOYCE.

The act of May 17, 1900, known as the free homestead act, operated to abrogate the general rule recognized in departmental practice, that requires payment to be made for the excess area embraced in homestead entries containing more than one hundred and sixty acres, in so far as such rule, prior to the passage of said act, affected the entry of lands designated therein.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) (J. H. F.)

December 7, 1901.

This case is before the Department on appeal by Robert F. Boyce from your office decision of June 5, 1901, requiring him to make payment of one dollar per acre for 15.76 acres of land, being the area in excess of 160 acres, embraced in his homestead entry, No. 2105, made

October 24, 1893, for the NE. 4 Sec. 6, T. 24 N., R. 12 W., I. M., in the Alva, Oklahoma, land district, on which entry final proof was made and final certificate issued August 23, 1900.

The payment mentioned appears to have been required by your office in pursuance of a general rule which has obtained in the established practice of the land department whereby an entryman, whose entry embraces more than 160 acres of land, is required to pay the government price per acre for the excess area included therein although the land covered by such entry may constitute only a technical quartersection.

Boyce's appeal is based upon the contention that he should not be required to make payment for the excess acreage embraced in his entry for the reason that the express provisions contained in the act of May 17, 1900 (31 Stat., 179), known as the free homestead act, operated to relieve him from any payment for such excess which might otherwise have been exacted.

The land involved is a part of what was formerly known as the Cherokee Outlet and was opened to settlement and entry under the provisions of the act of March 3, 1893 (27 Stat., 612, 642). By section 10 of that act it was provided that

each settler on the lands, so to be opened to settlement as aforesaid, shall, before receiving a patent for his homestead, pay to the United States for the lands so taken by him, in addition to the fees provided by law, the sum of two dollars and fifty cents per acre for any land east of ninety-seven and one half degrees west longitude, the sum of one dollar and a half per acre for any land between ninety-seven and one half degrees west longitude and ninety-eight and one half degrees west longitude, and the sum of one dollar per acre for any land west of ninety-eight and one half degrees west longitude and shall also pay interest upon the amount so to be paid for said land from the date of entry to the date of final payment therefor at the rate of four per centum per annum.

The tract in controversy is situated west of ninety-eight and one half degrees west longitude and is, therefore, of the class of lands the price of which was fixed at one dollar per acre.

By the act of May 17, 1900, supra, however, it is provided

That all settlers under the homestead laws of the United States, upon the agricultural public lands, which have already been opened to settlement, acquired prior to the passage of this act by treaty or agreement from the various Indian tribes, who have resided or shall hereafter reside upon the tract entered in good faith for the period required by existing law, shall be entitled to a patent for the land so entered upon the payment to the local land officers of the usual and customary fees, and no other or further charge of any kind whatsoever shall be required from such settler to entitle him to a patent for the land covered by his entry.

This latter act contains a further provision whereby the payment of all sums of money thereby released and which, if not released, would belong to any Indian tribe, is assumed by the United States, and, it is also therein provided "that all acts or parts of acts inconsistent with the provisions of this act are hereby repealed."

It will be noted that the act of March 3, 1893, in addition to the requirement of residence, also exacted payment by the homestead entryman of the price per acre therein specified "for the lands so taken by him," irrespective of the acreage of the tract entered, such payment being exacted for all the land covered by his entry regardless of whether the area embraced therein was more or less than 160 acres. Prior to the passage of the act of May 17, 1900, therefore, the requirement to make payment for land, in excess of 160 acres, embraced in homestead entries, made upon the Cherokee Outlet, rested not alone upon the established rule, hereinbefore referred to, which has obtained in the matter of excess payments generally, but also upon the express statutory provision contained in the act of 1893, supra.

The decision from which the appeal herein was taken proceeds upon the theory that, while the act of 1900, supra, repealed the provisions contained in section 10 of the act of 1893, supra, in so far as the same exacted payment by the entryman for the land so entered by him, it did not operate to change the force and effect of the established rule which has obtained requiring payment to be made for the excess acreage contained in all entries embracing more than 160 acres of land. In this decision the Department is unable to concur.

By the express terms of the act of May 17, 1900, every homestead settler upon the lands therein designated, who had resided or who should thereafter reside upon the tract entered for the period required by existing law, was to be entitled to a patent " for the land so entered' upon payment to the local officers of the usual and customary fees." The land involved herein is of the class designated in that act and Boyce perfected final entry thereof after making proof of residence thereon for the full period of five years and has paid to the local officers the usual and customary fees. He has, therefore, apparently complied with all the express requirements prescribed by the act in question to entitle him to a patent for the land entered, and those express provisions, if standing alone, would appear to furnish sufficient evidence of an intention on the part of Congress to relieve entrymen, coming within the purview thereof, from making payment for any part of the land entered. But as additional evidence that such was the legislative purpose, it will be noted that it was also enacted that "no other or further charge of any kind whatsoever" should be required from the settler to entitle him to a patent for the land covered by his entry, and all acts and parts of acts inconsistent with the provisions so enacted were expressly repealed. This language is not of doubtful import. Aside from the repealing clause referred to, it clearly discloses that Congress intended to thereby exempt homestead settlers on the lands designated, who perfected title thereto by residing thereon for the full period required by existing law, from making any payment for the tracts covered by their respective entries without regard to the area