DESERT LAND ENTRY-COMPACTNESS.

LIZZIE A. DEVOE.

In determining whether an entry is within the regulations as to compactness its relation to adjacent lands may be properly considered.

Secretary Lamar to Commissioner Sparks, July 7, 1886.

I have considered the appeal of Lizzie A. Devoe from your decisions of September 3d and November 19, 1885, rejecting for lack of compactness her desert land entry No. 2530, for the E. of the N. E. and the N. E. of the S. E. 1 of Sec. 8, and the N. of the S. and the S. of the N. of Sec. 9, T. 47 N., R. 81 W., Cheyenne District, Wyoming.

Devoe's entry contains four hundred and eighty acres. It measures a mile and a quarter from east to west-somewhat exceeding the dimensions prescribed in the circular of March 1, 1884, (p. 35). You direct that Devoe "adjust" the boundaries of the entry so as to comply more literally with the requirements of the law and the above regulations.

I do not see how this can be done. An examination of the tract-books of your office discloses the fact that such re-adjustment can not be made by dropping two forties from the east end of the tract and taking in an equivalent amount on the north, as said land on the north is, and was before the date of Devoe's entry, filed upon as a pre-emption claim by one Bryan Long. All the land on the south is marked upon the maps and reported in the field notes of survey on file in your office as being, "mountainous"-thus corroborating the allegations in the affidavit accompanying Devoe's appeal that said land could not be rendered arable even by irrigation. There is no way in which the boundaries of the entry can be re-adjusted, except by extending them either north or south, the former of which is unallowable under the law, and the latter impracticable in view of the topography of the country.

The rule prescribed in the circular of March 1, 1884, (supra), is by its own terms not a rigid and inflexible one, the statement being explicitly made therein that

The requirement of compactness will be held to be complied with on surveyed lands when a section, or a part thereof, is described by legal subdivision as nearly in the form of a technical section as the situation of the land and its relation to other lands will admit.

There being in the case of Devoe's entry no departure from reasonable requirements of compactness, but it being as nearly square "as its relation to other lands will admit," I think said entry should be allowed to stand, and so direct. Your decision is modified accordingly.

TIMBER CULTURE CONTEST-RELINQUISHMENT.

BROWN v. BALDWIN.

The charge as laid by the contestant could not be maintained, but as she subsequently during the pendency of the contest and prior to the intervention of any adverse right, filed the entryman's relinquishment her right to make entry of the tract involved is recognized.

Secretary Lamar to Commissioner Sparks, July 7, 1886.

I have considered the case of Eva Brown v. John H. Baldwin, on appeal by the former from your office decision of April 28, 1885, cancelling her timber-culture entry No. 5923, for the SE. of Sec. 21, T. 116 N., R. 67 W., Huron district, Dakota Territory.

The tract described was originally entered by John F. Douglas, October 20, 1882, under the timber-culture act. August 24, 1883, Eva Brown instituted contest against Douglas, alleging as ground therefor that he "had made and executed a relinquishment of said tract, and holds the same for sale and speculation." This relinquishment Brown obtained and filed with the local officers. The relinquishment bears the same date with Brown's affidavit initiating contest, namely, August 24, 1883; but there is nothing among the papers to indicate when it was filed in the local office further than an incidental remark of Brown's attorney, that it was filed "subsequent" to the initiation of contest. The local officers refused to cancel Douglas's entry, but transmitted the papers to your office, November 24, 1883. Your office, April 28, 1884, directed the cancellation of Douglas's entry, but dismissed Brown's contest, holding that "the allegation that a party has relinquished his entry is not of itself a sufficient ground for contest "—at the same time directing the local officers to "hold the land subject to entry by the first legal applicant," thus practically denying to Brown the preference right to enter. Your office also retained upon its files Brown's application to enter. Brown appealed to the Department. The Department, October 20, 1884 (3 L. D., 150) decided that—

If Brown had obtained possession of the executed relinquishment and filed it at the time of making application to enter (there being no other contest pending at the time), said application should have been allowed; but failing to file the relinquishment upon making application to enter, she had at the time of making such application no statutory ground of contest. Nevertheless, under the circumstances,-having done the best she knew to secure the desired right, and no other right having intervened, but the question being oue entirely between the applicant and the United States-I see no reason why she should not be allowed the benefit of being considered the first legal applicant, and so direct.

In pursuance of this decision your office, October 24, 1884, directed the local officers to place Eva Brown's application of record. Brown being notified of the departmental decision and your said office or der-and her previous application being retained upon the files of your

office on November 3, 1884, made timber-culture entry No. 5923 for said tract.

Nearly six months prior to this, however, to wit, May 6, 1884, one John H. Baldwin had made timber-culture entry No. 5110 for the same tract. April 28, 1885, your office held Brown's entry for cancellation, in a decision of which the following is all except the introductory statement of the case:

The Hon. Secretary of the Interior, on October 20, 1884, decided substantially as follows in case of Eva Brown, viz: that claimant had no legal right to initiate a contest, and because of this fact could not acquire a preference right to enter the land in controversy, but as no other right had intervened, there was no objection to her being permitted to enter the tract as the first legal applicant.

When the decision cited was made, the Hon. Secretary was not aware of the intervening right of John H. Baldwin, whose timber-culture entry was at that time of record, and was a bar to any other timber entry in that section. When the appeal of Eva Brown was forwarded to the Hon. Secretary by my letter "P" of May 22, 1884, no mention was made therein of the intervening right of Baldwin, because the clerk having charge of the case omitted to make proper annotations upon the tract books.

You will notify Brown that her entry is held for cancellation, and allow the usual time in which to appeal from this decision.

From the said decision of your office Brown appeals to the Department.

The holding of your office, to the effect that the departmental decision of October 20, 1884 (supra), allowing Brown "the benefit of being con sidered the first legal applicant" was conditioned upon the fact of "no other right having intervened" at the date of said decision is untenable. Said decision rested simply upon the conclusion that, although Brown had applied to contest upon a ground which she could not maintain, yet inasmuch as she had subsequently filed a relinquishment, and no adverse right had intervened up to that time, she should be allowed to make entry of the land.

Your office decision holding Brown's entry for cancellation for conflict with that of Baldwin's is therefore reversed.

HOMESTEAD ENTRY-ABANDO NMENT.

ANDERSON v. ANDERSON.

The charge of abandonment will not lie where it appears that residence was established and the subsequent absence was the result of judicial compulsion.

Secretary Lamar to Commissioner Sparks, July 7, 1886.

On May 12, 1869, Anders Anderson filed declaratory statement for the NW. of Sec. 30, T. 114, R. 35, Redwood Falls, Minnesota, alleging settlement April 2, the same year. On July 3, 1873, he made timber

culture entry for the same tract and surrendered his declaratory statement receipt, though it does not appear that the filing was ever canceled. On April 13, 1880, he relinquished his timber-culture entry, and on May 17 following made homestead entry for the tract.

On August 17, 1883, Charles Anderson filed affidavit of contest against said entry, alleging abandonment. At the hearing contestant appeared personally and by counsel; contestee was represented by attorney. The testimony disclosed the following facts: That contestee settled on this tract some ten or twelve years prior to the contest, and continued his residence there, with his family, until about February 22, 1882, at which date he was arrested, charged with the murder of his wife, and taken from his homestead to the Renville jail; that he was convicted on said charge, and in May, 1883, committed to the penitentiary at Stillwater, Minnesota, for life; that on said last date his family consisted of seven children, one of whom is the contestant herein, and that four of the children were minors; that the improvements consisted of a house, worth $900, a good granary and well, one hundred acres plowed, sixty-five acres in crop, eight or nine acres fenced for pasture, and a grove of trees covering from ten to thirteen acres; that claimant had a supply of farming machinery, a considerable number of livestock, and other personal property. That after the arrest of contestee the children one by one left the homestead, finding homes elsewhere, and that in December, 1882, Charles Anderson, the last one remaining, left the land. The testimony further shows that claimant, in January, 1883, while under arrest but prior to conviction, executed a lease of said premises to one John McIntosh, then jailer and deputy sheriff at Renville, for the term of two years, from March 1, 1883, with power to sublet, in consideration of which the lessee agreed to keep the growing timber protected from fire, and the buildings from being destroyed; that McIntosh sublet the full term to one Henry Smith, who, either personally or by subtenant, protected the property and cultivated the land up to the date of hearing. It is further shown that claimant believed he could best secure the homestead for all of his children by making the lease as above stated. On this state of facts the local officers dismissed the contest, and your office on appeal affirmed their action.

While it is true that residence under the homestead law must be continuous and personal, it is also true that residence once established can be changed only when the act and intention of the settler unite to effect such a change. Anderson had lived on this tract for many years, and up to the date of his arrest had complied with the requirements of the law as to residence and cultivation. His absence from the land since that date is by judicial compulsion, which would certainly be a valid excuse for temporary absence. (Bohall v. Dilla, 114 U. S., 47). I am therefore of opinion that claimant's absence from the land under imprisonment for life does not constitute abandonment under the homestead law. No

other question is presented by the record for my consideration. Questions as to the making of final proof need not be here decided. The decision dismissing the contest is affirmed.

TIMBER CULTURE-PLANTING-CULTIVATION.

HUNTER v. ORR.

Sowing tree seeds broadcast cannot be held in compliance with the law, as it renders cultivation impracticable.

Secretary Lamar to Commissioner Sparks, July 9, 1886.

I have considered the case of Otis M. Hunter v. William M. Orr, as presented by the appeal of the latter from your office decision of February 11, 1885, holding for cancellation his timber culture entry for the W. of S. E. and the E. of S. W. 1, of Sec. 32, T. 11 N., R. 1, E., Lincoln, Nebraska.

It appears that said entry was made February 23, 1878, and that Hunter filed his affidavit of contest December 18, 1883, charging that "Wm. M. Orr has no trees on above described land, nor has there been any cultivation within the last two years, nor has there been any trees planted on said tract within that time."

Hearing was set for January 24, 1884, at which time both parties appeared with counsel and witnesses, and the trial proceeded. A large amount of testimony was taken, upon the hearing and consideration of which the register and receiver found that contestee had failed to comply with the law in the matter of planting and cultivation. Orr appealed, and your office affirmed the finding of the local office.

I have carefully examined the testimony, which I find to be very conflicting-witnesses for contestant testifying that there are but few trees on the tract, some putting the number which they were able to find upon examination as low as a dozen or thereabouts, and stating that these could only be found by searching in the weeds and grass; while witnesses for contestee testify to having found growing on the land a large number of trees, ash and elm, and that from their examination they are satisfied that there are many more than the law requires.

The examinations referred to by the witnesses for the contestee, it appears, were made at the request of and in company with Orr, the contestee-some of the witnesses testifying that they could see no trees on the tract until told and showed by Orr how to find them, viz, by getting down and parting the weeds and grass in which they grew. Iu this way they examined certain spots over the tract, and from such examination drew their conclusions, or made their estimates as to the total number of trees.