latter's being, by such order, embraced with the lands in a military reservation. This question, it seems to me, ought clearly to be answered in the negative. The decision appealed from is accordingly reversed. HOMESTEAD ENTRY-COMMUTATION-RESIDENCE. FRANK W. HEWIT (ON REVIEW). The law as construed by the Department requires that actual residence must be established upon land covered by a homestead entry within six months from date thereof; and failure to comply with such requirement is considered a defect in the entry which requires explanation. The commutation of a homestead entry is the consummation of the homestead right, and as the claimant in such cases is required to show compliance with the homestead law up to the date of commutation, failure to establish residence within the required period must be treated as though the entry was made under section 2291, R. S. If the good faith of the entryman is manifest, a commuted entry may be referred to the Board of Equitable Adjudication, where residence was not commenced within six months from date of entry, provided no protest or objection is made to the allowance of the entry. Commuted entries allowed by the local officers since the date of the McKay decision Secretary Noble to the Commissioner of the General Land Office, June 6, 1889. I am in receipt of your communication of the 11th ult., submitting for my consideration the question "whether or not the departmental decision of December 3, 1888, in the case of Frank W. Hewit (7 L. D., 488) shall in future be followed as the accepted rule of the Department in regard to homestead entries commuted under section 2301 Revised Statutes, where the entrymen have failed to establish their residence on the lands within six months from date of their original entries." You state that your office, on December 31, 1881, "In the case of John J. McKay(2 C. L. L., 454) held, after a re-consideration of the question, that it was not necessary to submit a commuted homestead entry to the Board of Equitable Adjudication on account of failure to establish a residence on the land within six months from date of entry." You also call my attention to the case of Lambert v. Fairchild (5 L. D., 675) wherein Acting Secretary Muldrow, under date of March 17, 1887, affirmed the decision of your office holding "that Fairchild was entitled to purchase under section 2301 Revised Statutes, although he had not established his residence within six months from entry: it was further stated in said decision that this had been the uniform ruling of the Department. You further suggest that "should the rule in the Hewit case be followed, a great deal of extra correspondence would be neces sary in order to prepare entries for submission to the Board of Equitable Adjudication, to say nothing of the labor and delay involved in such submission.” Section 2301 R. S. (Sec. 8 of the act of May 20, 1862), provides thatNothing contained in this chapter shall be so construed as to prevent any person who has availed himself of the benefits of section 2239 from paying the minimum price for the quantity of land so entered, at any time before the expiration of the five years, and obtaining patent therefor from the government, as in other cases directed by law, on making proof of settlement and cultivation as provided by law, granting pre-emption rights. (12 Stat., 392). Your office held in the case of McKay (supra) "that the failure to establish residence upon the land within six months from date of homestead entry," did not create a defect in said entry; that as the law Only required in commutation cases that the party shall make proof of settlement and cultivation as required by pre-emption law, . . . . it is immaterial whether he shall have complied with the homestead law in respect to time of making settlement upon the land, provided no adverse claim for the tract appears of record, as it is expressly provided that "nothing in this chapter shall be so construed as to prevent" him from making the payment and receiving patent. Commissioner Wilson, in his report for 1866, held: It has been ruled that where a party legally entitled makes an entry under the homestead law of May 20, 1862, and thereafter, at any time before the expiration of five years shall come forward, make satisfactory proof of his actual settlement and cultivation to a given day, and then pay for the tract, the proceedings merely consummate his homestead right as the act allows; the payment being a legal substitution for the continuous labor the law would otherwise exact at his hands. A claim of this character is not a pre-emption but a homestead. This ruling, although temporarily suspended by your immediate predecessor, has been uniformly followed by this Department. See James Brittin (4 L. D., 441); Cotton v. Struthers (6 L. D., 288); Ball v. Graham (idem. 407). In the case of Calvin L. Wilson (10 C. L. O., 343) (decided January 4, 1884) the Department held that the claimant, under said section 2301, must show cultivation as required by the homestead law. On July 29, 1884, in the case of John E. Tyrl (3 L. D. 49) the Department held that the clearing of land for the purpose of planting is cultivation within the meaning of section 2301 R. S., but no reference was made to the case of Wilson (supra). The case of Engen v. Sustad (11 C. L. O., 215) referred to the cases of Wilson and Tyrl (supra) and stated that in Wilson's case "the question as to what constitutes cultivation was not raised, nor was it passed upon in that decision. The entryman expressly denied making any cultivation and gave no reason for his laches." In ex parte John E. Tyrl (3 L. D., 49), it was decided that his commuted homestead cash entry should not be canceled, because the evidence showed good faith, continuous residence, and that the entryman had cleared for the purpose of cultivation about one-half an acre, and gave as an excuse for not breaking and cultivating to crop any part of the land, that he "settled too late." These cases were cited in the case of Adelphi Allen (6 L. D. 420) decided by the Department on Dec. 15, 1887. In the case of Samuel H. Vandivoort (7 L. D., 87) decided on July 30, 1888, the Department held that "the right of commutation depends upon prior compliance with the homestead law. If the cash entry fails, the homestead entry falls therewith," citing Greenwood v. Peters (4 L. D. 237), and Oscar T. Roberts (5 id., 392). In the case of Louis W. Bunnell (7 L. D. 231), the Department held that the payment of the purchase price, and compliance with the requirements of the law as to residence, cultivation and improvement, are the matters of substance which authorize commutation of a homestead entry, citing the case of Noah Herrell (6 L. D. 573) wherein it was held that "Where good faith is clearly apparent, and a substantial compli ance with the regulations is shown, an exception may be justified espe cially under those requirements which govern the manner of the proof, but do not affect its quality." On May 8, 1877, additional rules under section 2450 R. S. were established, and No. 24 thereof provides for the submission to the Board of Equitable Adjudication "all homestead entries in which the party failed to settle on the land within the time required by law by reason of physical disability, and where good faith is shown. In the letter of transmittal Commissioner Williamson states, "Special cases not covered by these rules, in which equitable relief should be afforded will probably arise. Such cases will be submitted as special, with letters of explanation." Prior to the case of McKay (supra) I am advised that it was the practice of your office to submit commuted homestead entries to the Board of Equitable Adjudication for consideration, where the settlement and residence was not established within six months from the date of entry, upon the same grounds as other homestead entries. The law as construed by the Department, requires that actual resideuce must be established upon land covered by a homestead entry within six months from date thereof, and hence, failure to comply with such requirement must be considered a defect in the entry and requires explanation from the entrymen. Since the commutation of the homestead entry is but the consummation of the homestead right, and since the claimant must show compliance with the requirements of the homestead law up to the date of his application to commute, I am unable to see any substantial reason for making a distinction between homestead entries consummated under section 2291 R. S., and those completed under the provisions of section 2301. In the case of William Martin (7 L. D. 351) the Department held that where the failure to establish residence within six months from date of original entry is caused by circumstances beyond the control of the entryman, and good faith is shown the entry may be submitted to the Board of Equitable Adjudication. Nor does the case of Lambert v. Fairchild (supra) necessarily conflict with the ruling in the case of Hewit: In the former case, Lambert contested Fairchild's homestead entry and the Department held that "There being no contest filed against Fairchild's entry until after he had offered commutation proof, it was held by the Commissioner that he was not required to show compliance as to residence beyond the time required by the pre-emption law, and this has been the uniform ruling of the Department." The last clause evidently refers to the time residence is required to be shown, namely six months, under the rulings of the Department. It was not intended to rule in said decision that a homestead claimant had the right of purchase under section 2301 by making "proof of settlement and cultivation as provided by law granting pre-emption rights." The evidence showed that Fairchild had very valuable improvements upon his homestead, and that he established his actual residence on the land long prior to the initiation of Lambert's contest, and hence the defect, so far as the contestant was concerned was cured. This ruling is in harmony with the case of Brassfield v. Eshom (8 L. D. 1) wherein it was held (see page 2 of opinion'), It has not been considered that a contest where the contestant does not allege a settlement or improvement on the tract, or of some other adverse right than the preference right of entry, that he may acquire by a cancellation of said claim, is such an adverse right as would prevent the claimant from curing the defect, by filing the supplemental affidavit, as ruled in the case of Roe v. Schang (5 L. D. 394) the good faith of the entryman being manifest; and the entryman having made settlement and residence on the land prior to the initiation of contest. In the case of Gottlieb Bosch (8 L. D. 45) decided May 11, 1888, the Department without referring to any of its former decisions, held that the claimant may have acted in good faith believing that his acts constituted a compliance with the law. . . . The proof submitted is, by reason of claimant's apparent good faith and his continuous residence in the latter year, ample to authorize the purchase of the tract by him under Sec. 2301 of the Revised Statutes, if he so elect. Otherwise the proof offered must be rejected, and the case be left to such further proof as the claimant may make. No reference is made in said case to the former decisions of the Department, nor was the question considered whether the entry, if made under section 2301 should be submitted to the Board of Equitable Adjudication for consideration. Besides the final proof in commutation cases is required to be made on the same blanks (Form 4-369 Gen. Circular, March 1, 1884 p. 86) and differs only in respect to the final affidavit. I have, therefore, to advise you that the rule laid down in the Hewit case (supra) will in the future be followed as the accepted rule of the Department. Where the good faith of the entryman is manifest, the commuted entry will be submitted to the Board of Equitable Adjudication, although actual residence was not commenced within six months from date of entry, provided no protest or objection was made to the allowance of the entry. Commuted entries allowed by the local officers since the McKay decision (supra) and in accordance therewith, should be submitted to the Board of Equitable Adjudication without calling for explanation from the entryman. Such procedure will, in a great measure, obviate the objection made by you on account of the delay and increased correspondence necessary to execute the foregoing directions. RAILROAD GRANT-PROCEEDINGS UNDER THE ACT OF MARCH 3, 1887. CALDWELL v. MISSOURI KANSAS AND TEXAS RY Co., ET AL. An expired pre-emption filing, in the absence of a settlement right claimed thereunder, will not except the land covered thereby from the operation of a withdrawal. Absence in military service will not defeat the right of pre-emption if actual settlement has been theretofore established, and proper proof of such service is furnished. A homestead entry of land covered by an existing withdrawal is invalid as against the grant. In order to sustain a suit under the act of March 3, 1887, it is necessary to show that the land has been erroneously certified [or patented] under the grant. Section four of said act gives to the purchaser in good faith from the company a preference right in lands erroneously certified, and the right to patent on proper proof. The provision in section two, act of March 3, 1863, with respect to settlement rights "on any of the reserved sections," does not refer to the granted sections, but to the even numbered sections reserved from the grant. Secretary Noble to Acting Commissioner Stone, June 7, 1889. By letter of January 16, 1889, your office recommended that suit be instituted to cancel the certification to the State of Kansas of the NE. 1, Sec. 29, T. 23 S., R. 18 E., in said State. It appears the tract lies within the ten mile common granted limits of the grants for the Missouri, Kansas and Texas railway (14 Stat., 289) and the Leavenworth, Lawrence and Galveston (12 Stats., 772) railroad companies, the withdrawal for the latter of which is stated by your office to have taken effect May 5, 1863, and for the former, on April 3, 1867. The records show that on December 17, 1860, one Dennis Kelley filed pre-emption declaratory statement for the tract alleging settlement the same day. At that date the land had been "offered," Subsequently, on April 4, 1865, Kelley made homestead entry for the tract, which entry was on December 12, 1872, canceled by your office for expiration of the time allowed for making proof and payment and for conflict with the grants. On July 29, 1874, said companies jointly listed the tract and on February 11, 1875, it was certified to said State for their benefit. |