PROCEEDINGS ON FINAL PROOF-PRE-EMPTION.

HASKET v. CANON ET AL.

One who has filed a declaratory statement for a tract and submitted final proof therefor, is under no obligation to protest against the final proof of another who subsequently initiates a claim for said land and offers proof thereon.

Final proof should not be submitted for land involved in a pending contest.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, November 18, 1890.

On July 11, 1885, Alban B. Canon filed Osage declaratory statement No. 2817 for the NE. of Sec. 14, T. 32 S., R. 22 W., Garden City, Kansas, alleging settlement thereon June 7, of that year.

On October 21, 1885, Joseph R. Hasket filed Osage declaratory statement No. 3729, for the E. of the NW. and W. of the NE. 1, said section, alleging settlement June 24, of that year. Canon published notice that he would make his final proof on December 24, 1885, and on that day Hasket filed his protest against the

same.

Canon submitted his proof, after which several witnesses were examined, touching the residence and improvements of both Canon and Hasket.

The hearing was closed on April 15, 1886, and on May 27, 1887, the register and receiver held that "Canon's proof be accepted." Hasket duly appealed, and on March 30, 1889, you rendered your opinion, affirming the judgment of the local officers, and held for rejection the final proof of Hasket as to the W. 2 of the NE. of Sec. 14, being in conflict with Canon's filing. Your said opinion further states:

I find upon examination of the tract books that you have allowed one Joseph Swords to enter the E. of the NE. of Sec. 14, and the S. of the SE. † of Sec. 11, T. 32 S., R. 22 W., and have issued a receipt and final certificate to him under Osage cash entry No. 6821, application No. 4144, and dated February 24, 1887, alleging settlement June 8, 1886. As the above entry conflicts with Canon's filing as to E. of the NE. of Sec. 14, I hold it as regards said tract for cancellation, subject to appeal. Hasket did not appeal, but appears to have filed his relinquishment of the W. of the NE. of said section, on receiving notice of your said decision. Swords, however, appeals from that part of your de cision above quoted, and insists that Canon waived his right to the land and abandoned the same by failing to assert such right at the time Swords made final proof, and that you have no jurisdiction to cancel a prima facie valid entry, though it may conflict with a prior uncompleted adverse filing.

This position is not well taken. Canon's filing being first in time, he was under no obligations to protest against the final proof of Swords, whose filing and settlement on eighty acres of the land were made subsequent to the submission of Canon's final proof. Moreover, Swords 2497-VOL 11-29

knew that Canon's filing embraced eighty acres of the land in his filing. He went upon the land with the full knowledge that, if Canon's final proof should be accepted, he could not procure this eighty acres under his filing. He made no protest against Canon's final proof, and must have depended on Hasket to secure the cancellation.

The contest between Hasket and Canon was in progress at the time Swords made his filing, and, while it specifically applied to the W. of the NE. of Sec. 14, yet it also involved the whole of the NE. 4 of said section, and postponed the acceptance of the final proof of Canon. Hasket's charge against Canon went to the latter's good faith, so that the filing and final proof of Swords were made during the pendency of a contest, involving part of the land embraced in his filing.

Final proof should not be submitted during the pendency of a contest. Rule of Practice 53, 4 L. D., 43; Bailey v. Townsend, 5 L. D., 176; Wade v. Sweeney, 6 L. D., 234; Lewis Peterson, 8 L. D., 121. Your said office decision, holding for cancellation Swords' entry as to the E.of the NE. of said section, is affirmed, and Canon's final

proof will be accepted.

PRE-EMPTION CLAIM RESIDENCE

SAMUEL C. HAVER.

To establish residence there must be, concurrent with the act of settlement, an intent to make the land a home to the exclusion of one elsewhere.

The fitness of the land as a place of permanent abode, the period of inhabitancy, and the claimant's relation to the land after final proof, may be considered in determining whether the claim of residence is made in good faith.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, November 19, 1890.

On July 28, 1885, Samuel C. Haver made pre-emption cash entry based upon declaratory statement filed June 10, 1884, alleging settlement the 5th of the same month upon the NE. of Sec. 21, T. 12 S., R. 77 W., Leadville, Colorado.

By letter dated July 6, 1888, your office finding that Haver's published notice of intention to make final proof did not "properly describe the land involved" and that said proof did not satisfactorily show the "claimant's good faith or compliance with legal requirement" required him to make within ninety days new proof "after due advertisement."

Such new proof having been transmitted by register's letter dated October 29, 1888, your office on November 16, following found the same to be insufficient and held the said entry for cancellation.

From this action Haver appeals to this Department.

It appears from his original pre-emption proof made July 25, 1885, before the judge of the Park county court, that Haver was the head of

a family consisting of his wife and three children; that he made settlement on the land June 5, 1884, by laying a foundation; that his residence thereon established June 10, 1884, was continuous, that the altitude of the land being too great for farming he neither broke nor cultivated any part thereof but used the same for grazing and that he has built thereon a house fourteen by eighteen feet valued by himself at ninety and by his witnesses at fifty dollars.

In his new proof (new form) made October 27, 1888, before the county judge both Haver and the witnesses thereto, who appear to be the same persons who testified in support of his original proof, (old form), in reply to the various questions concerning Haver's residence on the land simply refer to the general and affirmative statements made by them in such original proof. The said new proof sets out that in addition to the house mentioned, Haver has constructed on the land two irrigating ditches, each one quarter of a mile in length, a log stable twelve by fourteen feet, a cattle corral and horse pasture; that his said improvements have a total value of $155, that the altitude of the land is nine thousand feet, that it "is mostly on the open range and used by all having stock on that range," and that after making final (original) proof Haver conveyed the land to "a small cattle company" in which he was the principle owner.

It further appears from the affidavits of Haver and of four others, made in September, 1890, and filed during the pendency of the appeal here, that the land is valueless for agriculture, that it is some three miles from the nearest habitation, that by reason of the springs thereon and its "sheltered " location its chief value was for "a drinking place and good headquarters for range stock," that Haver's wife and children lived with him on the land during the summer of 1884 for about two months, after which, owing to his wife's delicate health, they stayed in Denver until May or June, 1885, when they returned to the land and continued to live thereon until the "close of the summer," that Haver, who during the greater part of the winter of 1884 and 1885, when "elsewhere working for wages as a rider and stockman" visited the tract occasionally to look after his stock; that (as he avers) Haver 'took this land up in good faith for a headquarters for a small individual stock enterprise of his own and intended to keep it as such;" that he did not change such intention "till at or after the taking of his first final proof when the president of the company with which he was connected. . . . learning of it, questioned the propriety of a rival, though small, cattle business being conducted in the same part of country by a member of the company;" and that upon consideration the said company offered Haver a fair price for the land which he accepted.

The foregoing shows that the land is undesirable as a place of residence and valuable only as an appurtenant to a stock range. This and his limited inhabitancy considered in connection with Haver's subsequent sale (and evident abandonment) of the land which seems to have

been made about the time of his first proof shows, I think, that his settlement thereon was not made with the intention of making the same his permanent abode. To establish residence there must be concurrent with the act of settlement or going upon the land an intent to make it a home to the unqualified exclusion of one elsewhere. Albert H. Cornwell (9 L. D., 340).

The circumstances attending Haver's occupancy of the land showing his said settlement to have been made with no such intention, but rather with a view to securing the same as "headquarters for a small individual stock enterprise," through a colorable compliance with the law, I must find that his entry has been properly held for cancellation. The decision appealed from is affirmed.

RESERVATION-SETTLEMENT RIGHTS-FINAL PROOF.

ETNIER v. ZOOK.

Acts of settlement on land held in reservation confer no right against the government but may be considered in determining the priorities of subsequent claimants. A pre-emption filing for land covered by the prior homestead entry of another should not be allowed, unless the superior right of the pre-emptor is established on a hearing had for that purpose.

Final proof should not be submitted during the pendency of an action involving the right of the claimant to the land in question.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, November 19, 1890.

The case of Mary J. Etnier v. Elhanan Zook is here on appeal of the latter from your office decision of June 8, 1889.

The record is in some respects imperfect, and the proceedings in the local office irregular; but I think enough can be gleaned therefrom to correctly determine the rights of the parties in accordance with the principles of law involved therein. The facts as I gather them, are as follows:

On the 11th of September, 1886, said Zook made homestead entry for the NW. of the SE., the NE. of the SW. 1, the SE. 4 of the NW. and the SW. 1 of the NE. 1, Sec. 5, T. 2 N., R. 52 W., Denver, Colorado. On the same day T. B. Stuart made timber culture entry for the N. of the NE. and the NE. † of the NW. of the same section.

September 15, 1886, Mary J. Etnier applied to file her pre-emption declaratory statement for the NE. of the SW. the E. of the NW. and the NW. 1 of the NE. of the same section, alleging settlement thereon August 11, 1886.

Four years prior to these proceedings, namely: August 21, 1882, said lands had been reserved for artesian well purposes, but on July 31, 1886, the order of reservation was revoked, and the land opened to settlement and entry September 11, 1886.

When Etnier applied to file her said declaratory statement, she entered into an agreement in writing with Zook, whereby the question of her right to file for said tract was to be submitted to the register and receiver for their determination upon affidavits and such other evidence as they might present on or before September 22, 1886. This agreement was signed by Leon F. Moss, as attorney for Etnier, and T. B. Stuart, as attorney for Zook. The said Stuart, although not a party to the record, has filed herein an agreement signed by himself and Etnier that his rights shall be determined by this controversy.

November 10, 1886, the local officers rendered their decision thereon, in which they say: "We sustain the entries now of record, and reject the pre emption filing offered by Mary J. Etnier."

She appealed, and on March 21, 1887, your office, by its letter "G," instructed the register and receiver to allow her declaratory statement to be filed as of date of presentation, September 15, 1886.

May 30, 1887, Zook offered final proof (commutation) when Etnier protested against its allowance, alleging prior rights in herself by reason of her acts of settlement, improvements, residence, etc., and asked for a hearing thereon and that such hearing be had before a judge of the county court of Washington county, the county in which the land was situated, alleging as a reason therefor that nearly all the witnesses for herself and Zook resided in or near Akron, in said county, which was more than a hundred miles from the local office. This application was denied, and the protest overruled, Zook's proof accepted, and he was allowed to make cash entry No. 7077 for the land embraced in his homestead entry.

This decision was rendered by the receiver during the absence (on leave) of the register. On his return, the register also rendered a separate opinion, in which he concurred in that of the receiver.

Etnier appealed separately from both these decisions.

66

May 7, 1888, your office by its letter "H," suspended Zook's cash entry and ordered a hearing on the protest, at a time and place most convenient for the parties concerned.

August 1, 1888, Zook moved for a review of the Commissioner's decision ordering a hearing, as above. This motion was overruled by the Commissioner's letter "H" of October 12, 1888.

66

After taking depositions before several officers in different States, the register and receiver, on March 5, 1889, rendered the joint decision, stating that upon a full consideration of all the testimony which has been submitted, we find no reason to change our opinion as to the pri ority of right of Mr. Zook, or as to the sufficiency of the proof ..... We therefore sustain the entry of Mr. Zook." Etnier appealed from this decision, and your office, by its letter of June 8, 1889, reversed the judgment of the local officers, and held Zook's homestead and cash entries for cancellation as to that part of the land embraced in the declaratory statement of Etnier. From this decision Zook now appeals to this Department.