other authority, for as before stated the surveyor general never did issue scrip on this claim.

This case not being precisely similar to the "Bertrand" case, that case is not relied on herein, and no opinion is expressed concerning the correctness of the ruling therein.

The decision appealed from is modified in accordance with the views above expressed.

SOLDIERS' ADDITIONAL HOMESTEAD ENTRY-SETTLEMENT.

OLIVER v. THOMAS ET AL.

A soldiers' additional homestead entry, made through an agent, in conformity with the practice authorized by the Department, is a valid appropriation of the land covered thereby.

No rights, under the pre-emption law, are acquired by settlement upon land segregated from the public domain.

Nor will a settlement of such character create any right to pre-empt an adjoining tract of public land.

Secretary Lamar to Commissioner Sparks, December 16, 1886.

This controversy relates to the NE. of Sec. 12, T. 2 S., R. 2 W., M. D. M., San Francisco, California, the material facts in the case being substantially as follows:

The township plat was filed in the local office July 8, 1878, and on the same day soldiers' additional homestead entry No. 3254 was made in the name of one George W. Thomas, for the E. of the quarter above specified. Four days thereafter (July 12, 1878) Frank Oliver filed declaratory statement No. 14,358 for the entire quarter, alleging settlement October 1, 1877, and on the 8th day of November, 1883, Antone Gomez made homestead entry No. 5663 for the W. of the quarter.

On the 22d of November, 1883, Oliver offered his final proof for the entire quarter, the other parties in interest appearing and cross-examining his witnesses, but offering no testimony in their own behalf.

Upon the testimony thus adduced, the local office decided that the soldier's additional homestead entry of Thomas embracing the E. of the quarter should stand, and that Oliver should be allowed to enter the W. of the quarter under the pre-emption law.

Upon appeal this decision was affirmed by your office October 7, which was adhered to upon review October 25, 1884, and the homestead entry of Gomez was held for cancellation.

From these decisions separate appeals have been filed on behalf of Oliver and Gomez. Oliver appeals from that part of said decision which awarded the E. of the quarter to Thomas, alleging two grounds of error: First, That the homestead entry of Thomas is invalid for the reason that it was not made by him in person; Second, That the decision appealed from is contrary to the evidence in that it finds Oliver's settlement to have been made in the fall of 1879 instead of October 1, 1877, as alleged by him.

2278 DEC-19

Gomez appeals from that part of said decision awarding the W. of the quarter to Oliver, and holding his (Gomez's) homestead entry thereof for cancellation, alleging five grounds of error: First, That Oliver's residence and principal improvements being on the tract embraced in the entry of Thomas were not on public land, and therefore no right to said W. of the quarter could be acquired by reason of them under the pre-emption law; Second, That Oliver's declaratory statement having been filed before his actual settlement was for that reason void; Third, That Oliver's claim was illegal in that it was asserted in the interest of one Bellina. The fourth and fifth allegations were merely a summary of the ones preceding and will not be set out in detail.

An examination of the testimony shows that at the date of Oliver's alleged settlement and long prior thereto this section of land was included within a large enclosure claimed by one Antone Bellina, and in his possession and use until the fall of 1879. Bellina is the step-father of Oliver's wife. During the time Bellina was in possession of this tract Oliver was his hired man, lived with his family on other land within the enclosure, slept occasionally in a small cabin on the tract in controversy, cultivated it for Bellina, and received for his services about $600 per annum and board for himself and wife. Some time in the fall of 1879 Oliver purchased of Bellina the possessory right to the quarter in controversy and the improvements thereon, and then for the first time moved his family on the land and established a bona fide residence there. He built an addition to the cabin thereon and has continued to reside there ever since. His residence and main improvements valued at about $700 are upon the E. of the quarter, the tract embraced in the entry of Thomas before mentioned. He has about one hundred and forty acres of the quarter under cultivation.

From this finding on the evidence, it is readily seen that Oliver's allegation of error is not well taken; and that your office was not in error in finding that Oliver's settlement and residence on this quarter commenced in the fall of 1879. His claim to the E. of this quarter must therefore fail, unless he succeeds on his first allegation of error, viz: That the soldier's additional homestead entry in the name of Thomas is invalid and illegal.

This entry, as already stated, was made July 8, 1878, under Sections 2304 and 2306, U. S. Revised Statutes, and was therefore made when the practice under the circular of December 1, 1877, was in force. Section 2304 of the Revised Statutes allows certain privileges in the matter of making homestead entries to all honorably discharged soldiers and sailors who served in the late war for the period of ninety days. Section 2306 enacts:

"Every person entitled, under the provisions of section 2304, to enter a homestead who may have heretofore entered, under the homestead laws, a quantity of land less than one hundred and sixty acres, shall be permitted to enter so much land as, when added to the quantity previously entered, shall not exceed one hundred and sixty acres."

The circular above referred to, or so much thereof as has relation to the question under consideration, provides:

"Where a party entitled desires to make an additional entry of a quantity which, with his original entry, shall not exceed one hundred and sixty acres, it is required that a full recital of military service be presented to this office, with due proof of the identity of the party making the claim, and with proper reference to his original homestead entry, giving the name of the district office, date and number of entry, and description of the land. In addition, a detailed statement, under oath, must be filed by the party in interest, setting forth the facts respecting his right to make the entry, and containing his declaration that he has not in any manner exercised his right, either by previous entry or application, or by sale, transfer, or power of attorney, but that the same remains in him unimpared. He must also declare, under oath, that he has made full compliance with the homestead law in the matter of residence upon, cultivation and improvement of, his original homestead entry; and should further recite whether or not he has proved up his claim and received a patent of the land.

When these papers are filed and examined, they will, if found satisfactory, be returned with a certificate attached recognizing the right of the party to make additional entry under the law; and when presented with a proper application at any district land office, either by the party entitled or his agent or attorney, they will be accepted by the register and receiver, and forwarded with the entry papers to this office in the usual manner."

This Thomas entry was made under the following circumstances: The certificate of your office showing that Thomas was entitled to an additional homestead entry not exceeding eighty acres, as provided by the statute above quoted was issued under date of February 7, 1878. Prior to this general recognition of his right to an entry of this kind, Thomas, on January 1, 1878, appointed one D. H. Talbot, of Sioux City, Iowa, his attorney to obtain the examination and approval of his claim for an additional entry, and authorized the said Talbot to receive said certificate above mentioned, and to locate for him at any land office in the United States such lands as he should be entitled to enter. He further gave unto said attorney "full power of substitution, and to ask for and receive the patent for the land so located by my (his) additional right;" and also irrevocably invested him "with full power to perform everything whatsoever required and necessary to be done, as I (he) might or could do if personally present."

Under date of May 16, 1878, the said Talbot "substituted and ap pointed" one William H. Mead, of San Francisco, California, "to execute and perform the powers and trusts" granted by the power of attorney before mentioned.

Mead it appears located the land embraced in the Thomas entry, and filed all the necessary papers and exhibits in the San Francisco land office on the 8th of July, 1878.

Upon this state of facts it is insisted on behalf of Oliver that the Thomas entry is absolutely void, charging, first, That the power of attorney given by Talbot to Mead was in blank, the name of said Mead

having been inserted therein some time after it was signed and acknowledged by Talbot as aforesaid: Second, That the application to enter made and filed on behalf of Thomas July 8, 1878, was sigued by Thomas in blank, no description of this or any other land having been inserted therein until some time after the signing thereof by Thomas, and that Thomas was not within the State of California on the day the entry was made in his name. A hearing is therefore asked by him to prove these allegations.

In so far as the matter of a hearing is concerned, it is sufficient to say, that it must be denied if the alleged facts, though proven, could be of no avail to Oliver.

Now, under the circular of instructions above mentioned, in force when the Thomas entry was made, the practice was to allow entries made under circumstances similar to those alleged on behalf of Oliver in relation to this entry. This practice is expressly sanctioned by Secretary Chandler in his letter to the Commissioner of the General Land Office dated March 10, 1877 (2 C. L. L., 478) which was the basis of the circular above-mentioned. See also the cases of Calvin A. Allison (1 L. D., 61); Joshua Farmer (2 id., 31); William French (id., 237); Lamou Shaffer (id., 240).

The Thomas entry, therefore, having been made and allowed under the rulings then in force, and not being in conflict with the law as then interpreted should be allowed to stand. The entryman complied with all the regulations of the Department in the matter of his entry and he should not be prejudiced now, because those regulations have been changed. I Kent's Com., 476; Brown v. United States (113 U. S., 568, and cited cases).

This brings me to the consideration of Gomez's appeal. As already stated, the evidence shows that Oliver's settlement was made and his residence established upon the land embraced in the Thomas entry, iu the fall of 1879, after the allowance of said entry, and that his main improvements are upon that tract.

Upon these facts the contention on the part of Gomez is, that Oliver's settlement, made upon land which was embraced in the Thomas entry, was unauthorized and void for all purposes.

I have been unable to discover any authority directly in point upon this question, but I am of opinion, that upon principle, the point raised by Gomez is well taken. The settlement of Oliver was made not on public land, but upon land which had been segregated from the public domain. Manifestly, then, he could acquire no rights to the tract upon which he settled. If he could acquire no rights under the pre-emption law to the tract upon which he settled, I am unable to discover what rights he can assert by virtue of such settlement to an adjoining tract occupying a different status. It has been repeatedly held by this Department that a settlement made on land covered by an entry is as against the government of no effect while such entry remains uncan

celed. Likewise a settlement made upon a reservation is as against the government of no force or effect while such reservation is in existence. Hosmer v. Wallace (97 U. S., 575). But it is said that Oliver's settle. ment was for the entire quarter, that his claim was to that extent, and therefore that his settlement though made on land to which he could hope to acquire no right, was nevertheless good to the remaining part of the same quarter. Stated in general terms this proposition amounts to this: Any qualified pre-emptor may settle on a tract of patented land, knowing it to be such, and lay claim to such patented tract and an adjoining tract of public land under the pre-emption law; then make final proof for the whole tract, showing conclusively that he did not reside upon the public land, and have that tract of public land awarded to him under the pre-emption law. Such proposition is to my mind clearly untenable. It is quite true that a settlement made on any part of a quar tersection of public land may be considered to embrace the whole quarter; but that is not this case by any means. A settlement made on a tract of land segregated from the public domain, the settler knowing or bound to know that the land occupies such status, is, neither in law or in fact, any settlement at all. It is useless for all purposes.

Further, it is shown conclusively that Oliver's so-called settlement was not made until about sixteen months after his pre-emption declar atory statement was filed in the local office. This fact of itself tends somewhat to impeach his good faith. It is quite true that the defects in such filing might have been cured if settlement had afterwards been made prior to the intervention of an adverse claim, but in this case, as has been shown, there never was a settlement by Oliver on the W. of the quarter, such as the law contemplates, and his filing therefor is a nullity.

For the foregoing reasons that part of your said office decision which' allows the Thomas entry to remain intact is affirmed, and that part holding the Gomez entry for cancellation is reversed.

It is proper to say in this connection that this conclusion is reached without reference to several affidavits-one by Bellina, and another by Oliver-which were filed after the case was closed at the land office, and have not, for that reason, been considered. See Rule 72.

PREFERENCE RIGHT OF ENTRY.

BACHMAN v. SMITII.

The relinquishment of the contestant's preference right of entry leaves the land open to the first legal application on cancellation of the entry.

Acting Secretary Muldrow to Commissioner Sparks, December 20, 1886.

I have considered the case of William H. Bachman v. Dorothy Smith involving the preference right to enter the NE. of Sec. 29, T. 112 N., R. 63 W., Huron land district, Dakota.