SETTLEMENT - APPLICATION

PROTEST-FINAL PROOF EQUITABLE

ACTION.

WALKER v. SNIDER (ON REVIEW).

Settlement on land covered by the entry of another confers no right as against the entryman.

An application to make entry of land embraced within the uncanceled entry of another gives the applicant no right, even though the statutory life of the record entry had expired at the date of said application.

Where a homesteader, under instructions of the General Land Office, submits final proof after the expiration of the statutory life of his entry, and a protestant, without interest, appears, and objects thereto on the ground of the entryman's failure to submit his proof within the period provided by law, said protestant does not have such an "adverse claim" as will defeat equitable action on the final proof if it be found otherwise satisfactory.

Secretary Smith to the Commissioner of the General Land Office, Decem(J. I. H.) ber 6, 1894. (P. J. C.)

I have considered the motion for review filed by counsel for Benjamin Snider of departmental decision of June 18, 1893 (Walker v. Snider, 16 L. D., 524), wherein your office decision rejecting his final proof and holding his homestead entry for lots 1 and 2, Sec. 28, and lots 1 and 2, Sec. 29, T. 164 N., R. 56, Grand Forks, North Dakota, for cancellation, was affirmed. In the consideration of the motion I have found it necessary to re-examine the record.

It seems that Snider made homestead entry of said tract November 13, 1882, and offered commutation proof November 17, 1883. Robert Walker filed contest against the entry, and a hearing was had, which finally resulted in departmental decision of February 12, 1886, awarding the land to Snider (4 L. D., 387).

Snider did not make payment and final entry, as he might have done under said decision. On November 14, 1889, Walker presented his application to make homestead entry, and also an uncorroborated affidavit of contest, alleging failure of Snider to reside upon and cultivate the land, abandonment, and that he had not offered final proof within seven years from date of entry. The record does not show what action the local officers took in regard to this application to enter and contest.

On November 22, 1889, the local officers rejected Snider's application to make final proof, "for the reason that there is pending against said entry a contest filed November 14, 1889, by Robert Walker." Snider, with his application to make proof, filed an affidavit setting forth the proceedings in the former contest, and says that at the time of receiving notice of departmental decision in that case he had not the means wherewith to pay for the land, and under advice of his attorneys and the local officers decided to live on the land and submit proof before his homestead entry expired; that he renewed his residence thereon and has continued to reside on and improve the land; that he had intended

to make final proof within time, but that by reason of his duplicate receipt being with the papers in the former case, he did not definitely know the date of the expiration of his homestead entry. He appealed from the rejection of his application to make final proof, and your office, by letter of December 30, 1889, decided, after having recited the claims of both parties in full, that

in view of the foregoing the appeal is sustained, and the applications dismissed. You will advise the parties in interest hereof, and claimant that in event of this decision becoming final, further correspondence will be had in relation to his final proof.

On January 9, 1890, the order for final proof by Snider was granted by the local officers, and March 5, following set for the day of taking the same before the local office. The record shows that on the latter date the claimant appeared

also appears at the same time and place Robert Walker, in person and by his attorneys, Bangs and Fisk, and make protest against the acceptance of said proof, on the ground and for the reason that the same has not been made within seven years from date of entry, and that the adverse right of aforesaid Robert Walker has intervened.

The proof was offered, Snider cross-examined, and the testimony of Walker taken.

As a result the local officers recommended that the entry be allowed and referred to the board of equitable adjudication. Walker appealed, and your office reversed their judgment, and the Department affirmed your action (16 L. D., 524), on the grounds that Walker's "contest" had intervened before Snider took any action toward making final proof, and that it is only cases where there is no adverse claim that can be referred to the board of equitable adjudication.

Review of this decision is now asked on the grounds: (1) that it was error to hold that Walker had obtained any adverse right by reason of his contest, which should operate to prevent the confirmation of Snider's entry by the board of equitable adjudication; and (2) error in holding that Snider had not resided upon this land as required by law.

The protestant in his testimony and otherwise in the record seems to rely entirely upon his supposed rights under his original settlement. This matter is res judicata, having been determined adversely to him in the case reported in 4 L. D., 387, and will not be inquired into again. His attempt at making his residence on the land since that decision is merely colorable at best, as he admits living elsewhere with his family during the winters 1865-6 and 1887-8, and says he has "resided there off and on ever since." But admitting, for the sake of argument, that his residence has been such as the law demands, he could acquire no rights as against Snider, because the land was segregated by his entry, and Walker's presence was as a trespasser only.

Neither did he acquire any right by the presentation of his application to make homestead entry, because, although Snider's time had expired in which to make final proof, yet his entry was still of record,

and no further entry could be permitted until that was canceled (Goodale v. Olney, 13 L. D., 498; Maggie Laird, Id., 502).

His affidavit was not and could not be treated as a contest. It was not verified as prescribed by the rules, and on a presentation of the whole matter by both parties under Snider's appeal from the rejection of his application to make final proof, it was decided by your office that the appeal of Snider should be sustained, and the applications of Walker for entry and contest should be dismissed. Walker abided by this decision, and it is therefore conclusive of the questions there presented. Up to this point therefore Walker acquired no adverse right to the land, either by settlement, application to enter, or contest. How, then, is he here? The answer to that is conclusive by the record as made by the local officers. He appears simply as a protestant against the acceptance of Snider's proof, and the sole ground of his protest, in the light of what has been said above, is the failure of Snider to make proof within seven years.

I think it may be said that the entry of Snider was then a matter of investigation by the government. Your office had sustained his application to make final proof. The only question involved there was one between the government and the entryman. The government, speaking through your office, has said his proof might be submitted. The issue under the protest was one with which the government was perfectly familiar; there was no doubt that the proof was not made within the limited period; the entryman admitted it under oath, gave his excuse therefor, and your office held it sufficient, and permitted him to proceed. Under these circumstances it seems to me that the protestant has not such an adverse claim that would defeat the reference of the entry to the board of equitable adjudication.

The local officers were not without fault in this matter. It was their duty to have notified the entryman of the expiration of his entry and require him to show cause why it should not be canceled, under the circular of December 20, 1873 (1 C. L. O., 13). In the absence of their performance of this duty, the action of your office in sustaining Snider's appeal had virtually the same effect.

I am not aware of any case that goes to the length of holding that the act of any person without interest in the land, a mere informer or protestant, such as Walker is shown to be, acquires such an "adverse claim" as contemplated by circular of April 10, 1890 (10 L. D., 503), as would defeat reference to the board of equitable adjudication.

The decision for review of which this motion is filed appears to hold that Snider's failure to reside upon the land is sufficient to defeat his right thereto. But on further consideration of this case I am inclined to think that holding erroneous. In the first place, under the charges of the protest this was not an issue, and might well be dismissed without further comment. But I am constrained to believe that this finding of fact was not justified. The testimony shows that shortly

after Snider submitted his first final proof in 1883, and it had been accepted, he moved off the land, as he had the right to do, and also took off the original house, and lived elsewhere, until he decided he would not make payment under his commutation proof. He then moved back on the land, in the meantime having built a good residence and made other improvements, including a barn and necessary outhouses. During all the time, however, he had continued to cultivate the land, and raised crops thereon, having fifty acres in cultivation. His residence was continuous after November, 1886. Whatever apparent default there may have been in the continuity of residence was cured long prior to any attempt of Walker to assert a claim to the land, and he cannot be heard to object thereto. Moreover, all these matters were considered by your office in its said decision of December 30, 1889, and was binding on Walker.

It is clear to me that the error in the decision of which this is a review was in treating Walker as a contestant. In that capacity the Department recognizes such an adverse right as would defeat reference to the board of equitable adjudication. Under the facts as stated in said opinion, the conclusion is correct, but a re-examination of the record convinces me that Walker does not appear in the status of a contestant, but merely as a protestant, and as such cannot defeat the right of Snider to have his entry accepted and so referred.

It is therefore ordered that Snider be permitted to complete his entry, and that the same be then referred to the board of equitable adjudication for confirmation.

Said departmental decision of June 16, 1893, is recalled and revoked.

DONATION CLAIM-RESERVATION-EXECUTIVE ORDER.

JAMES MAXCY.

An executive order, reserving land for light-house purposes, will not take effect upon land embraced within a donation claim under which due compliance with the law has been shown prior to the issuance of said order.

Secretary Smith to the Commissioner of the General Land Office, Decem(J. I. H.)

ber 6, 1894.

(J. I. P.)

By your office letter "D" of September 8, 1894, you transmitted to this Department for consideration and examination the application of the transferee of James Maxcy for patent to the SE. of the SE. and lots 2 and 3, Sec. 12, T. 22 S., R. 13 W., Roseburg, Oregon, land district.

The facts in the case are, that James Maxcy, on June 22, 1857, filed at Roseburg, Oregon, notification No. 971, for the lands above described, under the 5th section of the act of September 27, 1850 (9 Stat., 496), and the acts of February 14, 1853 (10 Stat., 158), and July 17, 1854 (10 Stat., 305), amendatory of said act of 1850.

On January 1, 1858, Maxcy made proof of having occupied and cultivated said land from April 1, 1853, to January 1, 1858.

October 2, 1868, the local officers at Roseburg, Oregon, forwarded to your office the appeal of Maxcy from their action in refusing to issue a certificate in the above case, on the ground that a portion of said land, namely, lot 3, had been reserved for light house purposes by your office letter "C" of January 10, 1860, in accordance with the President's order of December 27, 1859.

By decision of your office, dated February 18, 1874, it was held that the reservation of said lot 3 by the President's order of December 27, 1859, could not affect Maxcy's right to a certificate and patent for his claim, as it was perfected so far as residence and cultivation was concerned, nearly two years prior to the date of the reservation, and that Maxcy was entitled to a certificate upon furnishing the necessary proof and paying the fees prescribed by law. Certificate No. 2002 was accordingly issued to Maxcy August 15, 1877, for all of the lands above described; but in view of the fact that a portion of said claim seems still to be used for light house purposes, the matter has been referred here by your office for examination.

It is virtually admitted that Maxcy had fully complied with the requirements of the law necessary to entitle him to a certificate and patent. At any rate, there is no showing to the contrary. The filing of his notification of June 22, 1857, was a segregation of the land claimed by him. (John J. Elliott, 1 L. D.,303). Having complied with all of the requirements of the statute necessary to entitle him to a certificate and patent, his right thereto became vested.

The right to a patent once vested is treated by the government, when dealing with the public lands, as equivalent to a patent issued. When, in fact, the patent does issue, it relates back to the inception of the right of the patentee, so far as it may be necessary to cut off intervening claimants. (Stark v. Starrs, 6 Wall., 402.)

And further

The rule is well settled, by a long course of decisions, that when public lands have been surveyed and placed in the market, or otherwise opened to private acquisition, a person who complies with all the requisites necessary to entitle him to a patent in a particular lot or tract is to be regarded as the equitable owner thereof, and the land is no longer open to location. The public faith has become pledged to him, and any subsequent grant of the land to another party is void, unless the first location be vacated and set aside. (Wirth v. Branson, 98 U. S., 118.)

In this case, Maxcy's right to a patent having become vested almost two years prior to the order of the President definitely locating the light house reservation, it could not be affected by that order. Hence it follows that the issuance of final certificate No. 2002 to Maxcy, on August 15, 1877, for the lands described, was proper, and patent should issue thereon.