said applicants, but which hearing does tracts embraced in the respective entries became subject to disposal, which pronot appear to have been held; that on De- of the Indians, and that patent has issued posed claim corresponds with that aftercember 16, 1878, the applicants renewed therefor. Notwithstanding the non-de- wards made. their applications, the former testifying livery thereof to Rockwell, it was effectual Kessel's house and improvements, conto her settlement on the land she applied to pass to him the title of the United sisting of about twenty cultivated acres, for, in 1870, her continued residence States to the tract named therein (U. S. and valued at $250, are all on the tract in thereon, and improvements consisting of vs. Schurz, 12 Otto 378), and until set dispute. He settled when there was no a house and cultivation of five acres; and aside by action of the courts, or by his other apparent claimant, and the tract was the latter of her settlement in 1870 on the voluntary relinquishment thereof and his unoccupied and unimproved, and, with his tract she applied for, her continued resi- claim thereunder, his legal right to the family, has continuously since resided dence thereon, and improvements consist-tract must be admitted. thereon. ing of a house and twelve acres under cul- But in view of the erroneous issue of On these facts the local officers recomtivation. These statements were corrob- this patent, you will require from him a mended cancellation of Spielman's filing orated by other testimony. surrender of his rights by a proper instru- so far as it conflicted with Kessel's. You ment, conveying to the United States the award the tract in dispute to Spielman, title he acquired thereby; and upon his which I think was erroneous. neglect or refusal so to do you will report In his opinion of April 25, 1846, Attorthe facts to this Department, that meas-ney-General Mason (4 Opinions 493) says: ures may be taken in the courts to restore" From the moment, therefore, that he said title to the United States. There being no conflicting claim of record to the E. of said N. W. at the date of Rockwell's additional homestead entry of February 11, 1876, it was approved and patented; but the patent was returned from the local office, at your request, without delivery to him, and is now among the files of the case. Your predecessor, by his decision of January 9, 1879, held the entry of Rockwell for cancellation, for the reason that the land embraced therein was not subject to his entry at that date, there being a valid adverse claim, though not of record; and Rockwell in his appeal therefrom, alleging that the statements of the Indian applicants and their corroborating witnesses were untrue, and it not sufficiently appearing to the Acting-Secretary of this Department that the applicants were entitled to make entries under said acts of June 10. 1872, and March 3, 1875, he directed (July 31, 1879) a hearing to ascertain their qualifications-the date of their settlements and the character and extent of their improvements. I affirm your decision, allowing the applications of these Indian women for tracts not embraced in the patent to Rockwell. PRE-EMPTIONS. including such tracts, is not the inception of I have considered the case of William The records show that Kessel filed declaratory statement July 18, 1881, for the tract in dispute (with others in the same section), alleging settlement September 30, 1878, and that Spielman filed declaratory statement August 2, 1881, for the same tract (with others in Sec. 28), alleging settlement January 8, 1871. The township plat was filed July 18, 1881. (the settler) enters in person on land open to such a claim (pre-emption) with the animus manendi, or rather with the intention of availing himself of the provisions of the act referred to, and does any act in execution of that intention, he is a settler." The uniform rulings (I think) of this department have been to the same effect, viz., that one intending to claim the benefit of the pre-emption law must perform some act connecting himself with the particular tract he intends to claim-whether it be surveyed or unsurveyed-equivalent to the public announcement of his claim, so that his purpose may be manifest. Intention merely is insufficient, and does not satisfy the requirements of the law. Spielman's enclosure of a body of seven hundred or eight hundred acres of the public land was unauthorized, and he thereby acquired no right to any part of In view of the testimony taken at such it until he performed some act of settlehearing, you find that the applicants rement identifying himself with the particuspectively resided on the land applied for lar tract (not exceeding one hundred and a long time prior to the date of their apsixty acres) he intended to claim. So far plications, to wit: since the fall of 1871, as appears, he did nothing of this nature and continuously since, and had complied prior to Kessel's settlement, and his claim with the requirements of section three of would be equally good to any other portion the act of March 3, 1875, which provides of his large enclosure (the tract upon that all actual, permanent, bona fide setwhich were the twenty acres excepted) as tlers on any of the lands reserved for Into the tract in dispute. Not having coudian purposes, under the treaty with the nected himself with this tract by any act Ottawa and Chippawa Indians of Michi- The testimony shows that several years of settlement, and the tract being unoccugan of July 31, 1855, shall be entitled to prior to the date of his filing, Spielman pied and unimproved when Kessel settled enter not exceeding 160 acres of land, enclosed a body of seven hundred or eight on it, the latter should be allowed to enter either under the homestead laws or to pay hundred acres of public land (including it as the prior settler. the minimum price of land, on making that in dispute) inside of which he also I reverse your decision, and award the proof of his or her settlement and contin- enclosed another tract of about twenty tract in dispute to Kessel. ued residence before the expiration of acres on section 28, upon which were his ninety days from the passage of the act, house and improvements, valued at about provided *** they shall have settled $1,000. He has resided upon this latter upon said lands prior to January 1, 1874; tract since 1871, but prior to Kessel's setand you renew your predecessor's decis- tlement, in 1878, never used the tract on The testimony shows that Sturgeon is ion of January 9, 1879, and hold Rock- section 21, except for grazing purposes in a practicing lawyer and real estate agent, well's entry for cancellation for the reason common with the other lands in his large doing business in the city of Santa Barformally stated. enclosure, and never improved, nor did bara, and having his residence on a tract I have examined the testimony, and any act of settlement thereon, nor defined of eighteen to twenty acres within the suraffirm your decision that Rockwell's a pre-emption claim within said enclosure, veyed limits of said city, about one mile entry was erroneously allowed, and that by stakes, or other monuments, denoting from its court house. He used the land he should be permitted, upon cancellation the boundaries thereof. He, however, in as a residence only, without other cultivathereof, to make a new entry elsewhere, 1876, 1877 and in 1878, prior to Kessel's tion than raising fruit and vegetables for with credit for fees and commissions paid. settlement, expressed a purpose to include his own consumption, and moved thence It appears, however, that his present the tract on section 21 in a pre-emption to the land in dispute. STURGEON VS. Ruiz. SECRETARY TELLER to Commissioner McFarland, March 7, 1883. entry covers forty acres of each of the claim, when the land was surveyed, and The tenth section of the act of 1841 (Section 2260 Revised Statutes), has been uniformly held to extend to residents upon agricultural lands only, and not to debar a preemptor who moves from his own home in a city, town or village, upon a preëmption claim. Your decision is affirmed. BROWN VS. QUINLAN ET AL. The decisions of the Courts and Department relative to the application of the doctrine of trespass quare clausum fregit to the public lands, examined and discussed, and held : Pre-emption-Forcible Entry.-Where lands are in the actual possession of one who has settled upon improved and fenced the same, no right thereto can be acquired under the pre-emption laws, by another who breaks the close and takes forcible possession. Exception-Peaceable Entry.-Where the lands are not inclosed by a fence, and the first settler is disqualified, or has taken no lawful steps to acquire title, a subsequent settler, who enters without force or intrusion upon the actual possession of the former, is not a trespasser qu. cl., and may acquire title to the lands under the pre-emption law. SECRETARY TELLER to Commissioner Me Farland, February 15, 1883. claimants. * * * claim to the lands has ever been made by The title to the Trado part of said Sou- and was required to deposit one dollar per acre, whereupon he deposited upwards of $2500. Upon the completion of the United States surveys, the selections were, after some controversy, rejected by your office, for the reason that the State and UniverNotwithstanding parts of Mexican sity had already selected more lands than grants had been conveyed, it was the they were entitled to. He then applied to practice to present for confirmation to the purchase the lands under the 7th section Board of Commissioners provided for of the act of July 23, 1866 (14 Stat. 218), in said act the grant as an entirety, and which provides for permitting persons to of course the confirmation would inure to purchase of the United States lands the benefit of grantees of parts. In the which they have in good faith and for present case that practice was not pur- a valuable consideration purchased of sued, but the claims for the parts were Mexican grantees, and which have not presented and confirmed, on appeal to the been included in the final survey of District Court, in severalty-except the such grants. He, however, was advised Trado part, not presented, and one part that on acount of the Lauff outstanding conveyed to Fuller, dismissed in the Dis- interest, as shown by the record of trict Court for want of prosecution. The the title, under the rulings of this Detime for presenting claims expired by the partment, such claim to purchase could act, March 3, 1853. not be maintained. He then, May 15, 1879, procured the additional homestead entries now in contest, and seeks to obtain title through these entries. At the time Brown went into possession he was informed that the Soulajule grant had been confirmed as an entirety, and he seems to have been under that belief at the time he made the purchases of the Trado tract aforesaid. These conveyances to Brown, and the I have examined the case of John various steps taken to acquire title, are McAllen Brown vs. John Quinlan et al., recited as bearing upon the question of involving certain lands in Twp. 4 N., R. 8 In 1859, Deputy Surveyor Mathewson good faith on his part, and as showing the W., M. D. M., San Francisco, California, was instructed to survey the grant. He sur-color of the title under which he had been on appeal from your decision of January veyed and located the exterior boundaries in possession. At the time of the addi12, 1882, awarding said lands to various of the entire Soulajule grant. This sur- tional homestead entries, he had been in vey, which embraced the land in contro- continuous possession of the tract, personThe township plat was first filed August versy, was approved March 3, 1860, by ally and by his tenants, about twenty-five 10, 1878, but was withdrawn because the the Surveyor General. Separate surveys surveys of the confirmed portions of the were afterwards made of the five conSoulajule grant had not been finally ap-firmed tracts within the boundaries of the proved, and was re-filed February 5, 1879. Mathewson survey. There were controMost of the lands in controversy were versies about the surveys, but that of situated within the exterior boundaries of Mathewson, representing the exterior the Soulajule grant made to Ramon Mesa boundaries of the Soulajule grant, was in 1844, and described as containing about held to be correct both by your office and three square leagues. by this Department. years. In the summer of 1878, the pre-emptors generally made forcible and violent entry through Brown's enclosure, and in that manner effected their alleged settlements, and with actual force and arms maintained their possession. Brown remonstrated, and made ineffctual efforts to eject them by force, and also resorted to the State At different times in 1849, 1850, and Brown seems to have labored under the courts for protection. He obtained an in1851, Mesa conveyed parcels of said grant belief that the grant as an entirety had junction to restrain the pre-emptors from to seven different parties; and among been confirmed, until Mathewson came plowing the land and interfering with his them a half league to one Trado, February upon the ground, in 1859, to make the sur-stock; and, upon the hearing of a motion 26, 1851, who on the same day conveyed vey. Upon taking possession, in 1854, he to dissolve the injunction, it was made it to Charles A. Lauff, William C. An- commenced and continued extensive im- perpetual. He also brought suits of ejectdrews, and James McKeever. In this provements upon the Trado tract, with the ment against the pre-emption claimants, parcel are situated the lands in contro- view of making of it an extensive dairy versy. Of this Trado tract Brown went into possession August, 1854, under an agree ment with the parties holding the title, and with the intention of purchasing it. He built his house and made improvements upon lands which he supposed to be within the boundaries of the Soulajule grant, but learned soon afterward that they in fact were upon the Laguna de San Antonio grant, adjoining; and to secure such improvements he purchased an interest in the San Antonio grant. In 1857, he and his brother Samuel obtained, for a valuable consideration, a deed of the tract from said McKeever, and subsequently he purchased his brother's farm. For this purpose he built a dwelling and dairy house, with other buildings, sunk wells for water for his cattle, and maintained a dairy of 200 cows. At the time of the survey in 1859, he had the tract enclosed with a substantial fence, built mainly by him, but in part by occupants of adjoining lands. in which decisions were rendered in his favor in the trial courts, and on appeal to the Supreme Court of the State, the decisions below were affirmed (8 Pacific Coast Law Journal, 708, 717). In these cases in the State courts, the acts of the respective parties in respect to lawful entry and possession, and the rights of each under the possession acquired in the manner before stated, seem to have been fully considered both upon the law and the facts, and it was determined that the possession of Brown was lawful, and that the pre-emptors were trespassers and intruders. In 1871, Brown made an effort to purchase the land comprising the Trado tract from the University of California, as unsurveyed land, and to have the same selected for him under the provisions of the Agricultural College grant. He deposited The surveys of the confirmed grants money for surveying the land. For some within the exterior boundaries of the reasons not explained, the Board of Re- "Soulajule" were finally approved Janugents, in 1875, made an order directing ary 18, 1879. Until that time the surplus In 1858 he acquired the title of said that the applications to select be aban- land then for the first time definitely found Andrews through an execution sale. He doned (Exhibit 20). Brown does not within the exterior boundaries of that seem to have learned of this action until grant was not opened to settlement 1878. He then renewed his application, under the pre-emption laws. (Hosmer vs. interest therein. has never had a conveyance of Lauff's interest, but it does not appear that any Wallace, 97 U. S. 575.) And certainly these pre-emption claimants could take nothing by reason of acts done before that time. I think it will be found upon examination that the present case, both as to the law and the facts, is ruled by the cases of Atherton vs. Fowler (96 U. S. 513), and Hosmer vs. Wallace (supra). In the former case (which was replevin for hay cut upon land claimed under a pre-emption settlement), the land had been within the limits of an alleged Mexican grant, but the claim for confirmation was decided adversely in March, 1862; and it was held that upon such decision the land became public land under the act of March 3, 1851 (supra). The land, however, after the final decision, continued to be held in possession by tenants and purchasers under the supposed Mexican grant, and while so held it was possibly invaded by persons who previously had no interest in it, and who dispossessed the occupants" under pretence of establishing a right of pre-emption to the several parts which they so seized." The court below charged the jury as follows: "If you believe from the evidence that the defendants entered in good faith, with intention to pre-empt the land on which the hay was cut, and had actual posession of it at the time the hay was cut, your verdict should be for the defendants." acts leading to homicides and other crimes which at the commencement of the settlement is in the possession and use of others, though upon a subsequent survey by the Government it prove to be part of the same sectional subdivision.” In the case of Hosmer vs. Wallace the doctrine in Atherton vs. Fowler was reaffirmed, and it was held that "the right of pre-emption only inures in favor of a Brown, however, is seeking to obtain title claimant when he has performed the con- through additional homestead entries made dition of actual settlement, inhabitation subsequently to the pre-emption filings; and improvement. As he cannot perform and I concur in your opinion that where them when the land is occupied by the enclosure divides the smallest subanother, his right of pre-emption does not division into parts, and the pre-emptor's extend to it." settlement and improvements were made upon the part lying outside of the enclosure, since no division can be made of such tracts, they should be awarded to the preemption claimants in preference to the additional homestead claimant. In that case, as in the one at bar, the * Wm. T. Farley claims the N. E. of section 25, in conflict with the claim of Aaron F. Bradley, under homestead entry No.3584, embracing the S. E. of S. E. of section 24, and E. of N. E., and S. W. 4 N. E. 4, section 25, and in conflict with claim of Mack, above adjusted, and said Farley's claim, as to tract in conflict with Mack, is held subject to Mack's claim. As to the remaining tracts, Farley's record claim is prior to Bradley's. Bradley, however, claims that Farley's settlement was effected by force within his enclosure, and upon land in his actual pos session. Nearly all the questions now under con- At the time that Farley made a settlesideration were examined by the Supreme ment upon the land, the evidence shows that The plaintiff requested the court to Court of California in the ejectment cases it was in Bradley's possession, occupied charge the jury," that if he was in actual before referred to, and were pertinent to the by his tenant. Bradley was living upon possession of the land, having cultivated inquiry. The decision is evidently a careful an adjoining tract owned by him. These it for several years previously, and the and well-considered one, and the court ex-tracts in contention between Bradley and defendants broke through his enclosure pressed the opinion that the questions in- Farley had been enclosed, or nearly so, by against his consent, the entry was unlaw-volved had been substantially determined Bradley, and had been in his possession ful, though the land might be public by the case of Atherton vs. Fowler many years. land." This request the court refused. It was held that the charge as given, and the refusal to charge as requested, was error, upon the ground that it was "obvious that the case was made by the court to turn on the assumption that the land was, in its then. condition, liable to be preempted by defendants, against the wishes of the plaintiff.” (supra). It is insisted, by counsel for the preemption claimants, that Brown was a trespasser from his first possession, in 1854. I do not think this position can be maintained. I think his possession within the exterior bounds of the Soulajule grant was lawful (Hosmer vs. Duggan, 56 Cal. 257; Van Reynegan vs. Bolton, 95 U. S. 33; Newhall vs. Sanger, 92 U. S. 761, and The court, in further considering the cases before cited). Until final adjustcase, said: "The generosity by which ment of the grant within the exterior limCongress gave the settler the right of pre-its, the lands were by law in a condition emption was not intended to give him the of reservation, and were so reserved by benefit of another man's labor, and author- your office (Letter D, November 26, 1878). ize him to turn that man and his family There can be no doubt that Ramon Mesa's out of their home. It did not propose to possession would have been rightful; and give its bounty to settlements obtained if so, the possession transferred to his by violence at the expense of others. The grantee (Trado), and to Brown (Trado's right to make a settlement was to be ex-grantee), was necessarily of the same lawercised on unsettled land-to make im- ful character. provement on unimproved lands. To The views thus expressed are conclusive erect a dwelling house did not mean to of the principal questions in controversy. seize some other man's dwelling. It had Settlements were made in some instanreference to vacant land, to unimproved ces outside of Brown's enclosure, but upon land; and it would have shocked the moral lands adjacent thereto, the sectional subsense of the men who passed these laws if divisions of which extended within the enthey had supposed that they had extended closure. It was said in Hosmer vs. Walan invitation to the pioneer population to lace that "settlement, inhabitation and acquire inchoate rights to the public lands improvement of one piece of land can conby trespass, by violence, by robbery, by fer no rights to another adjacent to it! He built a house and commenced to reside upon the tract in dispute in 1870, and resided there until 1876, when he removed to the adjoining tract, but returned to the land in question in 1879, it being occupied in the meantime by his tenant; and since then he has continued to reside thereon. He has used the land for grazing purposes, keeping thereon some forty milch cows. At one time he made an ineffectual effort to obtain title by means of selections under the grant of college lands. Farley's settlement was effected by a forcible entry. It was not accompanied by the acts of violence which characterized the possession taken of the Brown tracts, but it was with force. He put the lumber for his building from the public road over Bradley's fence, and afterwards effected an entrance for his team and other property by taking away the fence. He built a small house, and enclosed by a fence within Bradley's enclosure somewhat less than an acre of ground, which he has cultivated. Such is the extent of his possession, except that he has at times turned some of his stock out to graze upon other parts of the tract. The highest estimate made by himself upon the value of his improvements is $150. I am unable to agree with you that his pre-emption claim is valid and lawful. The manner of his entry, and the nature of his inhabitancy, is of such a character as prevented him, in my judgment, from obtaining a valid pre-emption under the principles laid down in the decisions already cited. I am aware that a modified interpretation has been given by this department to the case of Atherton vs. Fowler, since some of the earlier rulings made after that case was decided (see Marks vs. Bray, 8 Copp's L. O. 139), but I do not think that any of them go to the length of holding a pre-emption valid, attempted to be acquired under the circumstances of this case. In Clow vs. Patterson, subsequently modified, the entry of both parties was peaceful, and the actual possession of a part by one did not interfere with the actual possession of the other; and it seems to have been held that under the Atherton vs. Fowler case, the one could not be awarded the part possessed and improved by the other, though the latter had no legal claim to it under the statutes relating to the public lands. If such was the intended effect of the decision, it would man ifestly be wrong, and would not be justified by anything found in the case of Atherton vs. Fowler. The opinion in that case carefully states : "Undoubtedly, there have been cases, and may be cases again, where two persons making settlement on different parts of the same quarter-section of land may present conflicting claims to the right of pre-emp tion of the whole quarter-section, and neither of them be a trespasser upon the possession of the other, for the reason that the quarter-section is open, unenclosed, and neither party interferes with the actual possession of the other. In such cases the settlement of the later of the two may be bona fide for many reasons. The first party may not have the qualifications necessary to a pre-emptor; or he may have pre-empted other land; or he may have permitted the time for filing his declaration to elapse-in which case the statute expressly declares that another person may be come pre-emptor; or it may not be known that the settlements are on the same quarter." The question of a forcible entry was not in the later case of Powers vs. Forbes (7 Copp's L. O. 149), referred to by you, and although a part of the tract had been improved and was occupied by another party, it was awarded to Forbes upon the ground that the other party had failed to comply with the law in making proof and payment, and his holding was, for that reason, in violation of law. upon other land, but subsequently moved hereafter may be dismissed, for failure to to his improvements on a part of the land file an application to enter the contested in dispute, and both continued to occupy. tract, at the date of initiating his contest, The tract was awarded to Bray upon the may yet have opportunity of entering it, ground that it was public land (the selec- under a valid proceeding, I know of no tions having been cancelled) at the time objection to his initiation of a new contest, Bray settled, and Marks had taken no with an application to enter the tract; or steps under the law to acquire title. It that, in such case, in order to the saving was expressly found, and is so stated in the of expense and delay, the parties may stipdecision, that Bray's entry was not a forci- ulate, in writing, that the testimony forble one. merly taken may be used in the new contest, with such other testimony as they may see fit to submit. will, of course, be subject to any intervening right initiated prior thereto; and, in view of the time which has elapsed since the initiation of the former contest, should receive your early consideration. The new contest In Atherton vs. Fowler the single question decided (and the only one before the court) was that the right of pre-emption could not be initiated by forcible intrusion "upon the possession of one who had already settled upon, improved and enclosed that tract. And that such an intrusion, though made under the pretense You will post a copy of this circular in of pre-empting the land, was but a naked some conspicuous place in your respective trespass. That principle has been main- offices, and, in cases arising, be governed tained and re-affirmed in repeated decis-in accordance with the above provisions. ions in the courts, and has not been deN. C. MCFARLAND, Commissioner. Approved: H. M. TELLER, Secretary. parted from in the decisions of this department, (Molyneux vs. Young, 7 Copp's L. O., 170; Belk vs. Meagher, 104 U. S. 279). In this respect I therefore reverse your decision, and direct that Farley's pre-emp- Land of His Own-False Swearing.—In view of tion filing be held for cancellation. TIMBER-CULTURE CONTESTS. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, WASHINGTON, D. C., February 13, 1883. To REGISTERS AND RECEIVERS, U. S. Land Offices. By circular letter of this office, dated December 20, 1882, your attention was called to the provisions of Sec. 3 of the Timber-Culture Act of June 14, 1878, and it was therein announced that on the 14th of November, 1882, the Hon. Secretary of the Interior held, in Frank Bundy's appeal-Oberlin, Kansas-that said statute restricts contests against a prior timber culture entry to one who seeks to enter the land covered thereby under the homestead or timber culture laws, and that in the absence of such application to make entry there is no right of contest, nor does a preference right attach under Sec. 2 of the Act of May 14, 1880. You were therefore directed to dismiss all contest suits then pending in your respective offices against timber-culture entries coming within the purview of said decision, and informed that the filing of the application aforesaid is a condition precedent to the right of contest under said Sec. 3 of said Act of June 14, 1878, and that the party so applying must must be qualified to make an entry. On the 2d instant the Hon. Secretary of the Interior, in the case of Albert L. The case of Marks vs. Bray (supra), de- Bartlett vs. Edwin Dudley-Visalia, Calicided in 1881, is a leading case. Marks fornia-among other things, held as folhad been in possession by right of pur- lows: "Further consideration confirms chase from the State of California under me in the opinion that the decision in the selections made by the State, but which case of Bundy was a correct interpretation were cancelled in 1877. Bray made set- of the third section of the Act of 1878, as tlement and filed pre-emption [D. S.] some respects a contestant, and that it is not two years afterwards; and soon after his set- inharmonions with the second section of tlement, Marks made homestead entry. At the Act of 1880. In order, however, that the time of Bray's settlement Marks lived a contestant whose contest has been, or REPAYMENT. JOHN LONGNECKER. the facts shown, the pre-emptor's money is forfeited, and repayment is refused. SECRETARY TELLER to Commissioner McFarland, March 12, 1883. I have considered the appeal of John Longnecker from your decision of May 15, 1882, rejecting his application for repayment of purchase money on cash entry, No. 395, of the N. of the N. W. of Sec. 9, Twp. 3 N., R. 28 W., North Platte District, Nebraska. It appears that Longnecker made homestead entry No. 6164, January 10, 1872, of the S. of the N. E. of Sec. 8, and the S. of the N. W. of Sec. 9, Twp. 3 N., Range 28 W., and that final certificate No. 256 issued thereon March 18, 1878. June 11, 1879, he filed declaratory statement No. 1321 for the N. of the N. W. of said section 9, alleging settlement on the 5th of the same month, and entered the tract per cash entry No. 395, Sept 29, 1880. It appears from certain evidence in the premises, that at the date of his alleged settlement upon the latter tract, he was seized of his homestead claim, of which he divested himself in favor of his wife by warranty deed dated February 28, 1880. He alleges, however, by way of extenuation, that he did not establish his residence upon his pre-emption ciaim until March 10th ensuing. This can avail him nothing, because on the one hand he is confronted with his allegation of settlement as of June 5, 1879, which would operate as an estoppel to his alleging settlement upon any other date; while on the other hand he is precluded from asserting title by virtue of his alleged settlement on March 10, 1880, because it is not permissible to file before settlement. Thus he appears to fall within the category of persons who are expressly prohib ited by the statute (Sec. 2260 R. S.) from acquiring the right of pre-emption, because it is manifest that at the date of the initiation of his claim he removed from his own land "to reside on the public lands in the same State or Territory." firmed," the fees and commissions shall be specified therein, and authorizes the Secretary of the Interior to make the payments "out of any money in the treasury, not otherwise appropriated," by drawing his warrant on the treasury. You say in your decision that "there was no error on the part of the government in allowing a second entry," and seem to assume that in order to afford the As this is a specific direction of law, Hence his filing was illegal, and his en- relief provided for in the act, the error must and as the certificates represent money try based thereon was properly cancelled. always be one committed by the govern- previously paid into the treasury and conYou rejected his application for repayment. I think such construction is too fessedly due the parties, I am of the opinment because his entry was not errone-narrow. The statute says "where from ion that repayment should be made in ously allowed, as at the date thereof it had been shown that he had removed from his own land to his pre-emption claim, "and, therefore, it was no fault on the part of the Government in allowing the entry." any cause the entry has been erroneously cash, and not by copy of the certificate with a recognition of the right to use it in the same manner as the original. With respect to repayment where the payment was made in what is known as Supreme Court Serip, referred by your letter of November 18, 1881, there being no alternative provision, the act of June 16, 1880, unless the original purchase was governed by different conditions, would also seem to require repayment out of money in the treasury. The fact of such removal was not known by the Register and Receiver September 29, 1880, when Longnecker entered his pre-emption claim, nor did he disclose the fact until November 23, 1881, the date The effect of the maxim that ignorance of his affidavit alleging the same. Conse- of the law does not excuse, is removed to quently he swore falsely in his final proof a great extent by the act, because the cases when he stated categorically that he had provided for are those of erroneous entries This scrip is issued by your office purnot removed from his own land, etc. In from any cause," which would include suant to the decrees of the Supreme such a case, Section 2262 Revised Stat- errors of law as well as of fact; and it Court, where it has been adjudged that utes provides that if any person taking would be a singular construction to limit the United States has sold as public such oath swears falsely in the premises, the errors to those committed by the gov- lands, or otherwise appropriated, lands he shall forfeit the money which he may ernment officers, who are presumed to know covered by grants to individuals; and by have paid for such land, and all right and the law at least as well as the settlers and act of January 28, 1879 (20 Stat. 274), is title to the same." other persons dealing with them. The required to "be received from actual setstatute is one of remedies; and remedial tlers only in payment of pre-emption statutes "are to be construed liberally claims or in commutation of homestead and beneficially, so as to promote as com- claims in the same manner and to the pletely as possible the suppression of the same extent, as is now authorized by law in mischief intended to be remedied, and to the case of military bounty land warrants." give life and strength to the remedy."Section 2277, R. S., provides that "all (Maxwell 203). The fact that the acts of warrants for military bounty lands which the entryman have contributed to or are issued under any law of the United caused the erroneous entry ought not, States, shall be received in payment of under the statute, to deprive him of the remedy in cases where he has acted in good faith. I am therefore of the opinion that Longnecker has forfeited his rights in the premises, and your decision is accordingly affirmed. DUTHAN B. SNODY. Second Entry-Repayment will be allowed under act of June 16, 1880, where a second and therefore illegal homestead entry was made through ignorance of the law. SECRETARY TELLER to Commissioner Mc Far land, March 9, 1883. I have considered the application of Duthan B. Snody for repayment of fees and commissions on homestead entry No. 7989, final certificate No. 2346, Boonville, Mo., on appeal from your decision of April 25, 1882, declining to recommend repayment. Snody had made homestead entry previous to the one above mentioned, which he abandoned. The proof shows that he made the second entry in good faith, settled upon and improved it, and at the proper time made his final proof, believing his entry to be valid; that at that time no affidavit or other statement was required to the effect that he never had made any other entry, and that he did not learn until after he had made his final proof that he could make but one entry, but supposed he could make another, because he had not obtained any land under the first. Upon learning however, that he could not, he executed in due form a release and quit-claim to the United States, of all his interest in the land described in his second entry. At the time of the last entry there was no inquiry to develop the fact of the former entry, and there was no fraud and no intentional concealment by the claimant. The act of June 16, 1880, provides that "where from any cause the entry has been erroneously allowed, and can not be con The claimant in this case was guilty of no fraud or intentional wrong. He acted innocently, but ignorantly; and his second entry was erroneous. I think his claim comes within the scope and intent of the act. I reverse your decision, and direct re- IN CASES OF CASH ENTRY AND SCRIP AND I have considered your letter of the Section 2403, as amended by act of March 3, 1879 (20 Stat. 352), makes these ecrtificates assignable by endorsement, and receivable in payment for lands entered by settlers under the homestead and pre-emption laws. The act of June, 1880, provides for repayment of the amount paid in the cases pre-emption rights at the rate of one dollar and twenty-five cents per acre for the quantity of land therein specified; but where the land is rated at one dollar and twenty-five cents per acre, and does not exceed the area specified in the warrant, it must be taken in full satisfaction thereof." In cases of warrants, except Revolutionary Bounty warrants, I understand that in practice the entry takes the form of a specific location, and that upon cancellation the warrant is returned to the locator to be re-located-the cancellation operating to vacate the original location, and it being considered in such case that the warrant has never been satisfied, and consequently remains the individual property of the owner in its real character as a chattel, and not as money in the hands of the government. The same practice also prevails with the scrip in question. But the act of 1880 introduces a new feature into the case, by providing, not for cancellation of the location, but for repayment of the excess, merely, of one dollar and twenty-five cents per acre for the land, the title still remaining in the purchaser. In such case the warrant has been laid upon the land, and was received as payment therefor, although too much was charged, and the law requires a repayment of the overcharge. It would be manifestly inconvenient both to the purchaser and |