by the wrongful act of said officers. His failure to serve notice on Vance merely left him in the position of one who had failed to take an appeal, but did not deprive him of the protection of your office or of this Department. Pearce v. Wollscheid (10 L. D., 678). I see no reason why there should be any further hearing in this case. The entry of Vance should be canceled and that of Warthen placed on record if the latter still so desires. Should he, however, waive his right to make entry, that of Vance should be allowed to remain. Warthen should be allowed ninety days in which to determine what action he will take. Your decision is modified accordingly.. PROCEEDINGS ON FINAL PROOF-MINERAL LAND. DARRAGH v. HOLDMAN. In proceedings had under a protest against final proof the Commissioner should pass on the whole case as presented by the record, including the sufficiency of the final proof. The General Land Office has no jurisdiction over a case after an appeal from its decision thereon. When witnesses are examined by the local officers their finding of facts where there is a conflict of testimony, is entitled to special consideration. Findings of fact concurred in by the local and general land offices will be accepted as conclusive by the Department unless clearly wrong. A segregation survey at the expense of the agricultural claimant may be properly directed, where such claim includes land of a mineral character covered by a previous mineral location. Acting Secretary Chandler to the Commissioner of the General Land Office, October 30, 1890. I have considered the case of Richard Darragh v. George S. Holdman on appeal by the former from the decision of your office dated June 17, 1889, holding that the land claimed by Holdman, in Darragh's homestead entry No. 3250 of the fractional Sof the SW of Sec. 6, and fractional N of NW of Sec. 7 in T. 5 S., R. 20 E., Stockton, California, was mineral in character. The record shows that Darragh made said homestead entry on July 14, 1880, and on March 4, 1886, gave due notice of his intention to make final proof and payment for said land on April 24, same year; that on said last-named date said Holdman appeared and filed his protest against the allowance of said proof, for the reason that he had located a placer claim covering 15.88 acres in the SW of the SW of said sec. 6, and the NW of the NW of said sec. 7, prior to the date of said homestead entry, which he had continually worked during the mining season of each year. A hearing was duly had and from the testimony submitted by both parties, who were present and were represented by counsel, the local officers found that said Holdman, on January 15, 1878, filed in the recorder's office of Mariposa county his notice of location of the Holdman placer mine, covering the ground in question, and afterwards, during the same year, had said claim surveyed and the boundaries marked with stakes; that on October 30, and November 22, 1878, Holdman filed for record in said office notice of his claim to the water running in Snow creek through part of said claim and also for water running through a certain gulch to be conveyed upon said mineral claim; that said Holdman has worked for two or three months upon his claim during each winter season when he could secure water, and by means of box and ground sluices has mined a gulch therein, extending six or seven hundred feet; that said Darragh made his homestead entry with constructive notice of said mineral claim, and in September, 1880, received actual notice in writing of Holdman's claim; that after making said entry Darragh erected a dwelling upon said placer claim, in which he has since resided, and has also kept a store and the post office; that Darragh fenced about thirty acres of his claim, including ten acres claimed by Holdman, upon which he raised crops of wheat, rye and barley; that the soil upon said placer claim is composed of a sandy loam, with reddish clay, granite and some gravel; that the improvements of Darragh are valued at from $700 to $1,000, and the value of the work and improvements of Holdman is from $500 to $1,200; that it is shown that gold exists on said placer claim in paying quantities; that said Holdman, although an illiterate man, appears to be honest, and there is no reason to discredit or reject his testimony; that the weight of evidence shows that the land in controversy is mineral in character; that the residence of Darragh, having been made upon the mineral and not upon the agricultural part of the land covered by said entry, he could acquire no right thereby, and the local officers therefore conclude that said proofs should be rejected. Upon appeal, your office concurred in the finding of the local officers as to the character of the land in question, and held said homestead entry for cancellation so far as the same covered said mineral claim, and required said Darragh "to segregate from the balance of the land, by a survey at his own expense, under the direction and with the approval of the United States surveyor general of California" that the sufficiency of the final proof and the effect of his residence upon the mineral claim would remain for future determination. From said decision Darragh appealed, and, among other things, urged that it was error to require him to have a segregated survey made without any assurance that he would receive patent for the balance. He also submitted affidavits alleging that Holdman's contest was not made in good faith. Your office, on May 16, 1889, advised the local officers that said objection was good, and that "if Darragh will withdraw his said appeal C and file in lieu thereof a motion for review, the same will be duly considered." On May 28, 1889, Darragh filed a motion for review of said decision. of your office, and also submitted the affidavits filed with his said appeal, and prayed that a new hearing might be ordered by your office, if, upon consideration of the record, the decision should be adverse to him. On June 17, 1889, your office again considered the case, and held that the homestead entryman must have said survey made segregating the mineral land; that the evidence shows that Darragh resided on the land continuously, and, having shown good faith, the fact that his residence was on that portion of the land shown to be mineral, would not of itself defeat his rights, and that his final proof should not have been rejected. Darragh again appealed, upon the ground that said decision was contrary to law and the evidence. If the findings of fact by the local office, and concurred in by your office, are sustained by the evidence, the conclusions of law inevitably follow. The witnesses were examined by the local officers, and, in such cases, their findings of fact, especially where there is a conflict of testimony, are entitled to marked consideration. Morfey v. Barrows (4 L. D., 135; Neff v. Cowhick, 6 L. D., 660). Besides, when the findings of the local officers have been concurred in by your office, as in this case, they are accepted by the Department as conclusive, unless clearly wrong. Chichester v. Allen (9 L. D., 302); Conly v. Price (id., 490); Collier v. Wyland (10 L. D., 96); Finan v. Palmer, et al. (11 L. D., 321). A careful examination of the testimony shows that the decision of your office affirming the findings of the local land office as to the character of the mineral claim is sustained by the evidence. The record, however, shows some irregularities in the proceedings which should be noticed. In the first place, your office should have passed upon the whole record, including the sufficiency of the final proof. And, secondly, after said appeal was filed your office had no jurisdiction of the case, it being removed at once to this Department by virtue of said appeal. John M. Walker, et al. (5 L. D., 504); Ida May Taylor (6 L. D., 107); Sapp v. Anderson (9 L. D., 165); Keller v. Bullington (11 L. D., 140). The decision of your office requiring said segregation survey is affirmed, and upon presentation of the same, if satisfactory, Darragh's final proof will be accepted, and upon payment of fees and commissions, certificate will issue for the agricultural part of his entry. ADDITIONAL HOMESTEAD-COMPLIANCE WITH LAW BOWEN v. MCMICHAEL. An additional homestead entry under the act of March 3, 1879, cannot be maintained First Assistant Secretary Chandler to the Commissioner of the General I have considered the case of Ephraim Bowen v. Daniel McMichael, on appeal by the former from your decision of May 21, 1889, dismissing his contest against the additional homestead entry of the latter for the NE. of NW. of Sec. 32, T. 1 N., R. 11 E., Lincoln, Nebraska land district (Beatrice series). On November 20, 1882, McMichael made additional homestead entry for this land, under act of Congress of March 3, 1879, and October 13, 1884, he submitted final proof in support of the same which was accepted by the local officers. On November 15, 1884, Bowen filed an affidavit of protest against the same, alleging, in substance, that said entry was not made in good faith as an additional homestead for the entryman, but that the same was made for one Fred Parli and that said entryman had failed to comply with the requirements of the law in regard thereto, and that he did not occupy or cultivate the land, and did not control or use it from date of entry up to making final proof, but that it was in the sole control of said Parli. He further alleges that said entryman has failed to maintain a residence on the homestead to which the tract in controversy was made "additional," but was absent from the same more than six months at one time. Notice of said protest and of a hearing which was set for August 31, 1887, was given defendant, at which the parties appeared and the plaintiff offered the testimony of sundry witnesses, when an adjournment was taken until September 6th following, at which time the parties again appeared and the testimony was concluded and on the 13th of same month the local officers passed upon the case and decided in favor of the defendant and dismissed the protest. From this decision Bowen appealed to your office and on May 21, 1889, you affirmed said judgment and dismissed said protest, from which ruling he again appealed. The testimony shows that one Frederick Parli made a timber culture entry for this land, of date March 13, 1875; that he had fenced the tract with Osage hedge and wire on one side and on the other three sides he had rail and post and wire fence. This "forty" in controversy was situated in the corner of Parli's farm and joined the land of McMichael. Parli had broken a few acres and made some pretence from time to time of growing trees, but used the land as a pasture. There was a stone quarry on the tract and he sold stone therefrom. In October, 1882, one Henry Holton initiated a contest against Parli's timber culture entry, and hearing of the same was set for November 20, 1882. A few days before the date fixed for the hearing Parli paid Holton $50 to abandon said contest, and on the day of hearing he and McMichael appeared at the local land office and had an entry of dismis sal thereof made. Then Parli filed a relinquishment of his entry and cancellation of the same was entered and McMichael made additional homestead entry for the tract. The testimony of McMichael shows that he and Parli talked about a sale of the land to Parli, but made no actual contract. He paid Parli nothing for the relinquishment and did not refund any of the money paid Holton. After the entry was made he rented the land to Parli for $12.50 per year. Parli was to break some ground to hold the land, and was to reset and repair some fences and to have all the stone he wanted to take from the quarry. He does not fix any particular time or place where this agreement was made and gives it in piecemeal. He has not exercised any act of ownership over the land since the entry was made, has paid no attention to it. When asked his purpose in making the entry he said "I took it to enhance my pecuniary interest." He says he knew the law did not allow him to make an agreement of sale. He promised Parli that if he sold he, Parli, should have the refusal of it. Parli never spoke to him about paying anything for the relinquishment or the money paid Holton. Parli requested him to go to the land office and make the entry. He does not remember whether he told him that Holton had abandoned his contest. Parli furnished the team to go to the land office and noth. ing was said about the expense; he paid for feeding the team; does not remember whether they talked about the law prohibiting a contract of sale or not, but expected they did. Parli has had possession since the entry; he does not know how much has been broken since, may be an acre or au acre and a half; nothing in the agreement as to how much was to be broken; does not know if the plowed ground was sowed to rye or if cultivated in any way; does not know about the fence; Parli reset some of it, does not know if the wire is barbed or smooth, nor does he know anything about the posts; does not know how much stone has been taken from the quarry. He refused to testify on the first day and says he saw Parli and talked over the case and the testimony that had been offered, before testifying in the case. One witness who worked for Parli testifies that Parli told him that the land had cost him about $200. The testimony is voluminous in the case, but without going into further detail, it is sufficient to say that it convinces me that this entryman has wholly failed to comply with the law relative to additional homesteads. After providing therefor on certain conditions, it concludes as follows: Provided, That in no case shall patent issue upon an additional or new homestead entry under this act until the person has actually and in conformity with the homestead laws occupied, resided upon and cultivated the land embraced therein at least one year. Act of March 3, 1879, (20 Stat., 472). |