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If it was occupied at all the affidavit should have fully given the facts relating thereto, so that the officers of the land department, and not the affiant, could determine its effect upon the proposed selection of the land. Generally speaking, land which is occupied is not subject to selection. It has not been determined that there are any exceptions. Kern Oil Company ». Clarke (31 L. D., 288).

Because the land attempted to be selected was at the time of filing the selection, and still is, suspended from disposition, with the approval of the Secretary of the Interior (Wilcox . Jackson, 13 Pet., 498, 513; Wolcott . Des Moines Co., 5 Wall., 681, 688; Grisar . McDowell, 6 Wall., 363, 381; Riley . Wells, Book 19, Lawyers' Co-operative Pub. Co.'s Edition U. S. Supreme Court Reports, 648; Wolsey ". Chapman, 101 U. S., 755, 769; Wood . Beach, 156 U. S., 548; Spencer. McDougal, 159 U. S., 62, 64; Hans Oleson, 28 L. D., 25, 31), and because the selection has not at any point of time been supported by proofs that the selected land was then non-mineral and not occupied, each cause being in itself sufficient, it was rightly rejected, and the decision of your office is therefore affrmed.

HOMESTEAD-SOLDIERS' ADDITIONAL-ASSIGNEE.

WILLIAM E. MOSES.

No good reason exists for requiring the personal presentation of an application to make soldiers' additional entry, by either the soldier or his assignee, and if the proofs submitted in support thereof establish the material facts necessary to the existence of the right in the applicant, and the character of the land sought to be entered, they are sufficient, even though executed before some officer authorized to administer oaths outside of the land district in which the land sought to be entered is situate. Proof as to the character of the land may be made by any credible person having the requisite personal knowledge of the premises. Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) April 30, 1902. (D. C. H.)

William E. Moses, assignee of Julia Hampton, widow of Ephraim Hampton, deceased, has appealed from your decision of September 30, 1901, requiring him to show cause why his application to make entry, under section 2306 of the Revised Statutes, for the E. of NE. of Sec. 9, T. 41 N., R. 2 E., Lewiston, Idaho, land district, should not be rejected.

The decision appealed from held—

that the application, though signed by Moses as if made in person, is really made by the attorney in fact, as appears from the register's certificate at the foot of the application; the application is also accompanied by a power of attorney, and the attorney in fact made the non-mineral affidavit and filed the application before the local officers, while the affidavit of citizenship is made by Moses in Colorado. Notify the

applicant that he will be allowed sixty days within which to show cause why his application should not be rejected, for the reason that there is no provision in the law or regulations permitting a homestead entry to be made by an attorney in fact.

Said decision is based on the regulations found in the general circular of July 11, 1899 (page 31), which, in respect to entries by the assignee of a soldiers' additional right, provide

An assignee of an uncertified right desiring to make an additional entry under this section must present his application as the assignee of the soldier for a specific tract of land to the register and receiver at the local office in whose jurisdiction the land lies, accompanying the same by a complete assignment duly executed, attested, and acknowledged as prescribed respecting the assignment of bounty land warrants. The identity of the original assignor with the soldier and original entryman must be established by the affidavits of two witnesses having personal knowledge of the facts, or, if such witnesses can not be procured, a satisfactory reason must be given and other facts presented tending to establish such identity.

The applicant must furnish his affidavit of bona fide ownership at the date of the application, evidence of his citizenship, the usual non-mineral affidavit, and the affidavit of the soldier showing that he has in no manner exercised his homestead right since making the original entry, either by making an additional entry under said section or under any other act.

The required affidavits must be sworn to and subscribed in the presence of the register or receiver or other officer authorized by law to administer oaths in homestead cases, and the officer administering the oath must certify to the identity and credibility of the party appearing before him.

If the proofs presented in support of this application can be considered, there is no question but that they show that Moses was, at the date his application was presented, possessed of the additional right of entry granted to Ephraim Hampton, that Moses was then a citizen of the United States, and that the land embraced in said application was unappropriated public land non-mineral in character.

The practical questions, therefore, presented by the appeal are: (1) Must the assignee of a soldiers' additional homestead right personally tender at the local land office of the district in which the land sought to be entered is situate, his application and accompanying proof in support thereof? (2) Must the affidavits required by the regulations in order to establish the right in the assignee be made in the land district in which the land sought to be entered is situate? (3) Can proof as to the character of the land be made by any other person than the assignee of the soldiers' additional right of entry?

The marked difference between the right of homestead entry conferred by section 2289, Revised Statutes, and the additional right of entry conferred upon certain soldiers by section 2306, is clearly set forth in the decision of the supreme court in Webster v. Luther, 163 U. S., 331, wherein it was held that the soldiers' additional right of homestead entry conferred by section 2306, is a mere gratuity, somewhat in the nature of compensation for the soldier's failure to get the full quota of one hundred and sixty acres by his first or original home6855-Vol. 31-01-21

stead entry, and that it was intended that such right was to be enjoyed by the donee in its fullest and most advantageous form, including the right of assignment, unhampered by conditions that would lessen or impair its value.

In the case of Ricard L. Powel (28 L. D., 216, 220), it was said:

Burdensome requirements of proof of the right to locate by assignment might, and in many cases would contribute to defeat the intention of Congress to make the right a valuable one. The measure of its value as a property right depends upon an ability to ultimately locate it upon the public lands of the United States, and unreasonable restrictions in the matter of proof may fetter and render less valuable the right, just as surely as a denial of the right to assign it, and would, therefore, be in violation of the spirit of the ruling of the supreme court in said case. [Luther . Webster, 163 U.S., 331.]

To require of the assignee of such additional homestead right that he personally present his application at the district land office and personally make the required non-mineral affidavit, would serve no useful purpose, and would unnecessarily limit the use of the right and diminish its value; and while these questions were not specifically considered either in the case before the court or in the departmental decision referred to, yet the controlling force and effect of both decisions is against the requirement.

The statute is silent as to the mode of making proof in the exercise of this additional right, and the practice in other like cases is against the requirement. Locations of military bounty land warrants are permitted through an attorney in fact (see paragraph 29, regulations of February 18, 1896, 27 L. D., 223), as are also selections under the act of June 4, 1897 (30 Stat., 11, 36), in lieu of land within a forest reservation covered by a patent or patent certificate (29 L. D., 580). In the last case it was also held that the required non-mineral affidavit can be made by any credible person having the requisite personal knowledge of the premises.

Whether the right of additional entry is sought to be exercised by the soldier or his assignee, no good reason exists for requiring the personal presentation of the application, and if the proofs submitted therewith establish the material facts necessary to the existence of the right in the applicant, and the character of the land sought to be entered, it is sufficient, even though they may have been executed before some officer authorized to administer oaths outside of the land district.

For the reason given, your office decision is reversed. The regulations referred to, so far as in conflict herewith, will no longer be followed.

PRIVATE CLAIM-ARIZONA—ACT OF MARCH 3, 1891.

EDWARD GERARD, TRUSTEE, ROMAN CATHOLIC CHURCH OF SAN XAVIER DEL BAC.

In the enactment of the seventeenth section of the act of March 3, 1891, Congress had in contemplation the protection of individual possession, and the right of entry under said section can not be recognized where the possession is not of such character.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) April 30, 1902. (E. F. B.)

With your letter of November 4, 1901, you transmit the appeal of Reverend Edward Gerard, V. G., trustee for the Roman Catholic church of San Xavier del Bac, from the decision of your office of July 5, 1901, rejecting his application for patent to fourteen acres of land in the SW. 4, Sec. 21, T. 15, S., R. 13 E., Tucson, Arizona, on which is located the old San Xavier church and mission.

The application is made under the seventeenth section of the act of March 3, 1891 (26 Stat., 854, 862), as amended by the act of February 21, 1893 (27 Stat., 470), the survey of the township in which said land is situated having been made prior to the act of March 3, 1891. The section, as amended, reads as follows:

That in the case of townships heretofore surveyed in the Territories of New Mexico, Arizona, and Utah, and the States of Colorado, Nevada, and Wyoming, all persons who, or whose ancestors, grantors, or their lawful successors in title or possession, became citizens of the United States by reason of the treaty of Guadalupe Hidalgo, or the terms of the Gadsden purchase, and who have been in the actual continuous adverse possession of tracts, not to exceed one hundred and sixty acres each, for twenty years next preceding such survey, shall be entitled, upon making proof of such facts to the satisfaction of the register and receiver of the proper land district, and of the Commissioner of the General Land Office, upon such investigation as is provided for in section sixteen of this act, to enter without payment of purchase money, fees, or commissions such subdivisions, not exceeding one hundred and sixty acres, as shall include their said possessions.

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Provided, however, That no person shall be entitled to enter more than one hundred and sixty acres in one or more tracts in his own right under the provisions of this section.

Section sixteen, referred to in the section above quoted, contains similar provisions with reference to claims in townships that had not been surveyed prior to the passage of said act of March 3, 1891, and provides that the Commissioner of the General Land Office, if satisfied, upon investigation, that the claimant comes within the provisions of the section, shall cause patents to be issued to the parties so found to be in possession for the tracts respectively claimed by them.

From the papers submitted with your letter it appears that the mission of San Xavier del Bac was established in 1692, and has been

continued as a mission ever since, the reverend fathers and resident priests having at various times opened and supported schools for the instruction of the Indians; that the present church building was erected upon the ground it now occupies nearly a century ago and has been in the continuous and uninterrupted possession of the Roman Catholic Church, through its constituted authorities, who have regularly administered to the congregation worshipping therein.

The site of this mission is within the boundaries of what was formerly the Papago Indian reservation, and when the surrounding lands were allotted in severalty to the Indians the occupancy of the land here in question was confirmed to the church "so long as the same shall be used for religious or educational work among the Indians.” This confirmation was made under that provision of section 5 of the act of February 8, 1887 (24 Stat., 388), which reads:

And if any religious society or other organization is now occupying any of the public lands to which this act is applicable, for religious or educational work among the Indians, the Secretary of the Interior is hereby authorized to confirm such occupation to such society or organization, in quantity not exceeding one hundred and sixty acres in any one tract, so long as the same shall be so occupied, on such terms as he shall deem just; but nothing herein contained shall change or alter any claim of such society for religious or educational purposes heretofore granted by law.

The church authorities preferring an absolute title, made application, as before stated, for a patent to the site of the mission, under the act of 1891, as amended by that of 1893. This application is the one which was denied by your office.

It is doubtful if it was the purpose of the act of 1891 to recognize every occupancy, possession and claim to lands in States and Territories named, as conferring a right to receive a patent under the sixteenth and seventeenth sections thereof. It was more probably the purpose to protect the possession and occupancy of small holding claimants, having no grant, who as individuals had used, claimed and occupied lands for the period named. The sixteenth section as originally enacted provided for patent only

if it shall be made to appear to the satisfaction of the deputy surveyor making such survey that any person has, through himself, his ancestors, grantors, or their lawful successors in title or possession, been in the continuous adverse actual bona fide possession, residing thereon as his home, of any tract of land or in connection therewith of other lands, all together not exceeding one hundred and sixty acres in such township for twenty years next preceding the time of making such survey.

So the seventeenth section as originally enacted provided for patent only to

persons who, or whose ancestors, grantors or their lawful successors in title or possession, became citizens of the United States by reason of the treaty of GuadalupeHidalgo, and who have been in the actual continuous adverse possession and residence thereon of tracts of not to exceed one hundred and sixty acres each, for twenty years next succeeding such survey.

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