possibility for all to have presented applications simultaneously; that entryman acted honestly, in perfect good faith, in harmony with law, instructions, rules, and regulations, and that entryman should not be put to expense of a hearing.

April 12, 1905, you sustained Munn's appeal, and directed the entrymen to show cause against cancelation of the entries as to the land in conflict. They filed returns to the rule, and also appealed to the Department from such order. Smith's affidavit charged that Munn was disqualified by being proprietor of more than one hundred and sixty acres-viz: three hundred and forty-one acres of land. You held the order to show cause not appealable, because merely interlocutory, and February 6, 1906, ordered a hearing, which was held April 20-21, at the local office. All parties participated in person and with counsel. December 3, 1906, the local office found that all parties had acted in good faith; that Munn was owner of but one hundred and forty acres, and that he made settlement on the land at the hour of opening, prior to the time of application by the adverse claimant-entrymen; and recommended that the entries be canceled so far as in conflict with Munn's settlement claim, and that his application for entry be allowed. Reviewing the testimony you held that Munn was owner of at least 166.9 acres of land September 6, 1904;" that his homestead application was not tendered in good faith. As to the relative rights of settlers and applicants not alleging settlement you held that:

It would be unjust and inequitable . to allow plaintiff to shift and avoid the burdens of complying with departmental rules and regulations by an alleged settlement on the land in dispute to the detriment of these two. homesteaders, who in perfect good faith fully met and complied with all the rules and regulations governing the opening of these lands to the public . . The act of March 30, 1904, supra, provides that the lands. "shall be subject to entry at a time and in accordance with regulations to be prescribed by the Secretary of the Interior." . . The act in question gave ample authority to make and enforce such regulations relative to opening of these lands as the Department saw fit to make.

You reversed the action of the local office on two grounds: 1. That Munn was disqualified by reason of owning more than one hundred and sixty acres of land at the time of his settlement and application; 2. on the ground that by the regulations of June 30, 1904, supra, rights acquired by application at the land office are superior to rights acquired by settlement on the land at or prior to application at the local office, and asserted within time allowed by the act of May 14, 1880 (21 Stat., 140).

As to the latter question there can be no doubt. The instructions of June 30, 1904, supra, did not inhabit initiation of right by settlement. On the contrary, the land was "opened to settlement and entry." Either mode of appropriation was authorized. This was

in strict compliance with the act of June 6, 1900 (31 Stat., 672, 676), section 5 whereof, among other things, provides that after completion of the allotments "the residue of said ceded lands shall be opened to settlement by the proclamation of the President and shall be subject to disposal under the homestead . . . laws." The act of March 30, 1904, supra, made these lands "subject to entry under and in accordance with the provisions of section five” of the act above referred to. Munn was within the law, the instructions, and regulations in electing to initiate his right by settlement instead of by application presented at the land office. The assertion of prior right was in proper time, in due form, and the local office. erred in denying him a hearing, which action you properly reversed. The actual settler is preferred over the land office applicant, if actual priority is not shown, and the initiation of rights is strictly simultaneous. Dowman v. Moss (176 U. S., 413, 417). Munn is entitled to the land, if he actually settled as alleged in good faith, was qualified, and has complied with the homestead law. This necessitates examination of the evidence to determine these questions, whereon your decision reversed the findings of the local office.

As to qualification, the only evidence is that of Munn himself, called out on cross-examination, whereby, with apparent candor, he admits ownership of some lands and denies ownership or interest in other lands respecting which he is questioned. His adversaries rested content with his statement of his land holdings and did not by copies of deeds of conveyance to him, or other written evidence, or even by offer of oral evidence, attempt to dispute his statement or prove he was holding, owning, or proprietor of more than he admitted-amounting only to one hundred and forty-eight acres. As to one tract of three hundred acres respecting which he was questioned he expressly denied having any interest whatever in it by way of partnership with his brothers or otherwise, and no attempt was made to show that he had.

As to settlement his testimony was clear and unequivocal, corroborated by his wife and Edwards, who say they were present, that he settled with his wife and child on the land at the very point of time that it became open, and that he brought over from an adjoining tract a house already built, which he has since improved and has ever since inhabited as his residence. Beyond these three witnesses there is no testimony as to the house being on the land that day or at that hour, but the entryman's witness, Perkey, saw it next day, the 7th: Smith, the entryman, saw it the 8th, and Bartholf saw it the 9th, and none claim or say that they saw the act of moving the house. The moving was at their first observation a thing already done, and so far as their evidence goes corroborates contestant's proof, not refuting it.

As to the establishing and maintaining of residence in the house on the land, the testimony on contestant's part is equally direct and positive that it was established at once and has been continuous; that Mrs. Munn has not slept elsewhere except one night; that they have cooked and eaten there all the time, save for a period of about six weeks between July 1 and some time in November, 1905, when the meals were cooked and eaten at the "Indian shack" on the adjoining forty acres, while Munn had men helping him put up hay, which was done because the men were working there, and this arrangement saved both their work time and rest time. Had they even slept there for such brief time, moved by such reason, it could not properly be held an abandonment, or breach of continuity of residence.

There has been little cultivation by Munn, no more than a small garden and plowing of a small tract not exceeding an acre, stated by Smith to be but about fifty by one hundred and forty feet but this was not Munn's fault, as Smith and Bartholf fenced him out of all the land. It is not for them to complain that, while they were excluding Munn from the land by fences, erected and maintained under color of subsisting entries, he did not use force to get access to his land and cultivate.

There is no satisfactory or direct evidence that any statement of Munn as to establishing and maintaining residence on the land in contest is untrue. Smith was at Munn's house, as he says, only twice. The first time, not definitely fixed in date, was apparently September 14, 1904, and the Munns were there. In July, 1905, he looked into their window and they were not there. This was in the daytime and was while they were on the adjoining forty acres haying. Earle Thomas, witness against Munn, was then working for him in this haying season, and testified that the Munns had no bedstead at the Indian shack, and that "Mrs. Munn would get there in the morning about seven o'clock," which implies that she did not stay there, but came from somewhere else. So far as this goes it tends to corroborate her statement that she came from the homestead claim, where, as she claims, she slept.

There is nothing in the record justifying reversal of the findings of the local office, which heard the testimony and saw the witnesses. The weight of testimony supports their finding. Your decision is reversed and the finding of the local office is affirmed. The entries will be canceled, to the extent of conflict with Munn's settlement and his application for entry will be allowed.

HOMESTEAD ENTRY-RESIDENCE-SUMMER HOME.

GEORGE W. HARPST.

The homestead law contemplates that an entryman thereunder shall make the land his permanent home to the exclusion of a home elsewhere; and an entry of land merely for the purpose of making it a summer home, during three or four months of the year, while maintaining and occupying a home elsewhere the remainder of the time, is not within contemplation of the law.

Secretary Garfield to the Commissioner of the General Land Office, (G. W. W.) November 14, 1907.

(E. F. B.) George W. Harpst has appealed from the decision of your office of July 19, 1907, affirming the action of the local officers rejecting his final proof upon his homestead entry made October 24, 1901, for the SE. SE. 1, Sec. 7, SW. SW. 1, Sec. 8, NW. 1 NW. 1, Sec. 17, and NE. NE. 1, Sec. 18, T. 4 N., R. 4 E., Eureka, California.

The proof was rejected for the reason that it does not show that claimant established and maintained a residence on the land to the exclusion of a home elsewhere.

The correctness of that finding does not appear to be questioned. On the contrary, claimant with unusual frankness states in his appeal that his purpose in entering the land was to secure a summer home for himself and family; that the land is of an elevation of 4500 to 5000 feet, subject to late and early frosts, covered with deep snow in winter and for those reasons is not fit for agricultural purposes other than grazing during the summer months. He does not claim that he made it his only home, or that he had any such intention at the time of his entry, but that "it was his intention to make the same the permanent home of himself and family during the summer months, and he has done so ever since entry."

His contention is that it is not the intendment of the homestead law to require the entryman to remain constantly on the land. While continuous presence upon the land after the establishment. of actual residence is not essential in the continuity of such residence, the law does require that such residence shall be maintained to the exclusion of a home elsewhere.

The claimant has a stable and house and lot in Arcata, California, where he is engaged in the livery business. He has stock in the stable and the house is furnished. He does not deny that he has not lived continuously on the land, but says that his average residence on the place would be about three or four months in the year, and that when it is impracticable to live on the place he resides with his family in Arcata until the condition of the climate will permit of his returning to the land.

The only reasonable conclusion that can be deduced from his testimony is that his real home is in Arcata for about nine months of the year, and that the occupancy of the land for the summer months is a luxury he indulges under the impression, seemingly, that the donation by the Government to actual settlers and residents under the homestead law can be secured in such manner.

Your decision is affirmed.

CHARLES O. DE LAND.

Motion for review of departmental decision of July 16, 1907, 36 L. D., 18, denied by Secretary Garfield, November 14, 1907.

RESERVATION-SELECTION BY RAILROAD COMPANY-ACT OF AUGUST 5, 1892.

ST. PAUL, MINNEAPOLIS AND MANITOBA RY. Co.

So long as an order reserving lands stands unrevoked the lands are not subject to selection under the provisions of the act of August 5, 1892, notwithstanding the order of reservation was never noted upon the records of the local office, that the lands were never used for the purposes intended, and that the original scheme or purpose for which the reservation was made has been abandoned.

Acting Secretary Pierce to the Commissioner of the General Land (G. W. W.) Office, November 15, 1907. (F. W. C.)

The Department has considered the appeal of the St. Paul, Minneapolis and Manitoba Railway Company from your office decision of June 19, 1907, holding for cancellation its selection under the act of August 5, 1892 (27 Stat., 390), per list No. 69, of a certain unsurveyed tract designated in the selection as lot 1, Sec. 30, T. 24 N., R. 3 E., Seattle land district, Washington, being the easterly point of Blake Island, for the reason that the lands selected were, and had been for a long time prior to the filing of the selection in question in February, last, reserved for lighthouse purposes.

By the terms of the act of August 5, 1892, under which this selection is made, the company is limited to lands "not reserved and to which no adverse right or claim shall have attached or have been initiated at the time of the making of such selection," etc. Your office decision reports that this tract was reserved for lighthouse purposes in accordance with order of the President dated March 26, 1869, in letter of March 29, 1869, addressed to the surveyor-general, the same being designated as "Tatugh Point Reservation," and that