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homestead thereon. According to the agreement, witness had with Carew, the reservation was to be divided into six parts: Carew to have one; the town of Tampa one; W. B. Henderson one; S. M. Sparkman one; J. A. Henderson one; and witness one. Tampa was to make its selection and the balance to be divided equally among the other five. Parties interested were to pay all the expenses and Dr. Carew was to comply with the homestead law in regard to residence and cultivation. After the failure to secure the land in 1883 there was a scrip entry made upon it by W. B. Henderson, and by him the same proposition was made to the city of Tampa. Witness owned an interest in this scrip after that time; witness's son now owns said interest.

Carew died in 1886.

It will be observed that at the time of the trial Carew had been dead several years, and that the witness was an interested party in the transaction in regard to which he testified.

In the statute of Florida, Chap. 101, Sec. 24, it is provided as follows: No person offered as a witness in any court or before any officer acting judicially, shall be excluded by reason of his interest in the event of the action or proceedings, or because he is a party thereto; provided, however, that no party to such action or proceeding, nor any person interested in the event thereof, nor any person from, through, or under whom any such party or interested person derives any interest or title by assignment or otherwise, shall be examined as a witness in regard to any transaction, or communication between such witness and the person at the time of such examination deceased, insane or lunatic, against the executor, administrator, heir-at-law, next of kin, assignee, or committee of such insane person or lunatic;

etc.

Besides it will be observed that the witness testified that he and Carew were parties to a scheme which involved perjury on the part of Dr. Carew and subornation of perjury on the part of the witness him self. When Dr. Carew made his homestead entry he was compelled to swear that the same was done not for the benefit of any other person, persons, or corporation. He was also compelled to swear that he was "not acting as agent for any person, corporation or syndicate in making such entry, nor in collusion with any person, corporation or syndi cate to give them the benefit of the land entered or any part thereof," etc.

The scheme testified to by the witness was utterly inconsistent with the affidavit which had to accompany the homestead application of Carew, and the moral culpability implied on the part of a witness who, according to his own showing, testified in a revengeful spirit, because the other party to such a contract refused to carry out the same, is sufficient to discredit his testimony in the absence of any other legal reason.

In my opinion the testimony of J. T. Lesley, in so far as it goes to impeach the good faith of E. S. Carew, is inadmissible from a legal standpoint, and harmless because of its other infirmities. There being no other obstacle in the way of the claim of Mrs. Carew, I am of the opinion that it should be allowed.

The legislature of Florida in the year 1889 merged the towns of Tampa and North Tampa into one corporation and extended the limits of the city so as to include the reduced military reservation, and upon this legislative enactment the city of Tampa bases its claim to said reservation to be used as a public park and for other purposes.

The testimony failing to show that any considerable portion of the same was used and occupied for trade and business, the said claim was properly rejected in the opinion under review.

To avoid confusion I note that by the diagram approved by your office and transmitted to the local office in 1883, Fort Brooke was divided into seven lots, numbered 8, 9, 10, 12, 13, 14 and 16. According to the public survey, lots 8, 9, and 10, fall within Sec. 24, T. 29 S., R. 18 E.; lots numbered 12, 13, and 14, fall in Sec. 19, T. 29 S., R. 19 E., and lot numbered 16 falls within Sec. 18, T. 29 S., R. 19 E., Gainesville, Florida.

On the 22d day of March, 1883, the day on which the lands included in the Fort Brooke reservation were opened to entry, Louis Bell was residing upon that subdivision known as lot No. 8, Sec. 24, T. 29 S., R. 18 E., intending to make the same his permanent home. He was qualified and sought to assert his settlement rights by an application to file prior to the order in which the local officers were directed to allow no entries upon said lands. The claim of the heirs of Bell might properly be rejected upon the technical ground that the land in controversy was, at that time, included in the homestead entry of Carew, but inasmuch as said homestead claim was subsequently limited so as to exclude the lot or subdivision upon which Bell resides, and inasmuch as there is no other claimant to said legal subdivision who has a superior right to Bell, and for the further reason that his good faith calls for the exercise of the supervisory power of the Department, the same will be upheld, but limited to said subdivision.

The telegram sent from your office on the 2d of April, 1883, to the local officers directing them to allow no entries upon lands within said reservation, was doubtless made upon the idea that said lands could not be disposed of otherwise than by being brought into market and sold at public auction.

There being now no reason why said order should remain longer in force, especially in view of the fact that the claims of Carew and Bell, both of which were of record or offered prior to the date of said order, include the most valuable lands in the reservation aforesaid, the same is hereby revoked.

The claims of Julius Cæsar to lot No. 13, and of Martha Stillings, wife and heir of Andrew Stillings, deceased, to lot No. 12, of Sec. 19, T. 29 S., R. 19 E., and that of Frank Jones to lot No. 16, Sec. 18, T. 29 S., R. 19 F., are in the same condition as that of Louis Bell, with the exception that said claims were asserted subsequent to the date of the

order from your office directing that no entries be allowed upon the lands of said reservation.

The settlement rights of Cæsar, Stillings, and Jones had attached prior to the date of said order, and were simply held in abeyance by it. You will, therefore, direct that their claims be allowed to the lots or subdivisions upon which they respectively resided, should there be no intervening reason in either case for a different disposition of said lots.

The claim of W. B. Henderson to locate Gerard scrip on lots Nos. 8 and 9, Sec. 24, T. 29 S., R. 18 E., must be denied on account of its conflict with the prior rights of Louis Bell and Mrs. Carew.

The declaratory statement of Daniel Mather was properly rejected in the light of the record which discloses the fact that he never contemplated making his permanent home upon any land inside the Fort Brooke reservation, and that he abandoned his claim in 1885.

The remaining lot in said reservation, to wit, lot No. 14, Sec. 19, T. 29 S., R. 19 E., was settled upon by E. B. Chamberlin on the 7th of July, 1883, and upon that settlement he bases his claim.

The order emanating from your office directing the local officers to allow no entries, was no bar to initiating a settlement claim, and said order having been herein revoked, his claim will be allowed to said lot, should there be no other legal obstacle in the way of his perfecting the

same.

It will be observed that I have recognized the settlement rights of Bell and others, in this case, and the question might arise that since the settlement of Bell, for instance, was made prior to the homestead entry of Carew, and his rights thereunder were asserted by him within the time prescribed by law, that his claim would be superior to that of Carew, whose settlement began from his entry.

A settler is defined to be—

A person who intending to initiate a claim under any law of the United States, for the disposition of the public domain, does some act connecting himself with the particular tract claimed, said act being equivalent to an announcement of such intention, and from which the public generally may have notice of his claim. (2L. D., 628.)

In the light of this definition, the record discloses no act on the part of Mr. Bell, or the other claimants, which connects him or any of them, "with the particular tract claimed," outside of the lots or subdivisions upon which they respectively reside, until after the same was covered by Carew's entry.

I recognize the rulings of the Department that where an entryman is claiming a quarter-section of land and has made settlement upon one forty-acre tract of the quarter-section which he claims, that his settlement rights will be construed to cover the whole of the technical subdivision.

This rule, however, is limited by the condition that it must appear that the entryman intended to claim the particular technical subdivision which embodies the tract upon which he has made settlement.

If it should appear, for instance, that a person has made a settlement upon one quarter of some particular section of public land, and intends to claim a portion also of some other section, then the rule above referred to does not apply.

In order to avail himself of such a claim his acts of settlement must cover the whole tract.

Now the Fort Brooke military reservation includes portions of three separate sections of public land. A claimant, therefore, who seeks to acquire title to the whole of said reservation, must show such acts of settlement as extend to the entire tract.

But it may be suggested that the legal subdivision upon which Bell resides, according to general public survey, is the same as that upon which Carew resides, and that under a proper construction of the rule hereinbefore discussed, the settlement rights of Bell should be held to extend at least to cover the lots upon which Carew resides.

The reply is that Mr. Bell has never limited his claim to any technical quarter-section of land, and the rule applies to such claimants only.

The decision under review, for the reasons herein before mentioned, is set aside and you will direct that the lands formerly included within the Fort Brooke military reservation be disposed of in accordance with this opinion.

HOMESTEAD SOLDIERS' DECLARATORY STATEMENT.
TRUMAN WHEELER.

A soldiers' homestead declaratory statement filed by an authorized agent of the soldier, and abandoned, exhausts the homestead right of the soldier.

Secretary Smith to the Commissioner of the General Land Office, July 12, (J. I. H.) (F. W. C.)

1894.

I have considered the appeal by Truman Wheeler from your office decision of March 13, 1893, denying his application to make homestead entry for the W. NE. and W. SE. 4, Sec. 31, T. 129 N., R. 52 W., Watertown land district, South Dakota, for the reason that he had exercised his homestead right under soldiers' deciaratory statement filed April 19, 1892, for the SE. 1, Sec. 7, T. 129 N., R. 51 W., Fargo land district, North Dakota.

The points raised by the appeal are sufficiently stated: first, that the filing of the soldiers' declaratory statement does not exhaust the homestead right; and, second, claimant should not be held bound for the filing of the declaratory statement under the facts and circumstances attending the filing of the same.

The lands involved are a portion of the Sisseton and Wahpeton Indian reservation which was opened to entry on April 15, 1892. Wheeler was at this time residing in the State of Minnesota, and being

desirous of entering a tract of these lands he authorized one J. H. Movious to make a filing for him of good agricultural land.

It appears from an affidavit by Movious that he, after examination, selected the NE. 4, Sec. 2, T. 129 N., R. 53 W., as the tract to be filed for in Wheeler's name, but that due to delay in the forwarding of the papers empowering him to make said filing, which papers did not reach him until April 17, 1892, and being Sunday he was obliged to wait until the next day before filing the same; that when he reached the local office he found that a filing had been made for the land intended to be filed for in Wheeler's name, and he thereupon selected for Wheeler, without examination, the said SE. of Sec. 7, T. 129 N., R. 51 W., for which he made soldiers' declaratory statement, as before stated.

It appears from the affidavit of Wheeler, duly corroborated, that the last mentioned tract is unfit for cultivation, and that after examining said tract he selected the tract embraced in the application under consideration, upon which he has since built a house and otherwise improved the land.

It has been uniformly held since the circular of December 15, 1882 (1 L. D., 648), that a soldier will be held to have exhausted his homestead right upon the filing and abandonment of a homestead declaratory statement.

The sole question for consideration is, therefore, whether Wheeler is bound by the action of Movious in making the filing for the said SE. of Sec. 7, T. 129 N., R. 51 W.

It is admitted that Wheeler authorized Movious to make filing in his name, and that the selection of the tract was left to Movious; acting under this authority he made the filing, as before described, and, while he does not appear to have made a good selection, yet as Wheeler left the selection of the land to Movious, he is bound by his action.

The fact that Wheeler has, since applying for the land first described, made improvements thereon, can in no wise alter his status. Being bound by the filing made by Movious, his rights under the homestead law were thereby exhausted, and I must therefore affirm your office decision denying his application in question.

TIMBER CULTURE ENTRY-COMMUTATION-FINAL PROOF.

COON v. BARRETT.

Final proof taken without publication of notice can not be accepted in the commutation of a timber culture entry under section 1, act of March 3, 1891.

Secretary Smith to the Commissioner of the General Land Office, July 12, (J. I. H.) (J. L.)

1894.

I have considered the appeal of George N. Barrett from your office decision of May 16, 1893, in the above entitled case, affirming the decision of the local officers and rejecting Barrett's final proof under

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