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COPP'S LAND OWNER.

No. 1.

Entered at the Post Ofice at Washington, D. C., as This paper furnishes more valuable law informa-

THE January LAND OWNER published 30

second-class matter.

tior for less money, and is read by more land attor decisions and 9 instructions; the February

neys and real estate dealers, by more homestead, LAND OWNER gave 14 decisions and 11 in-

THIS NOTICE MARKED with a blue or red

pencil indicates that your subscription expires with pre-emption, and other land claimants, and by more

this issue, and if you wish the paper continued with mine owners, engineers, and superintendents, thun structions; while the March LAND OWNER

out interruption, you should remit your renewal any other publication in the United States.

contained 24 decisions and 4 instructions.

subscription at once.

Parties renewing their subscriptions will find it

Besides this material, these three issues

advantageous to send $1.00 for their card in the Land

All Registers and Receivers of the U. contained 8 pages of patents and other val-

Directory one year.

S. land offices are authorized to receive uable matter. The LAND OWNER's col.

CONTENTS.

PAGE subscriptions for this paper.

umns are solid with good things.

Bralnard's Legal Precedents-Important An.

nouncement-Swamp Land Contests-Ameri-

can Newspapers in 1883--Land Personals........ BRAINARD'S LEGAL PRECE-

AMERICAN NEWSPAPERS IN 1883.

DENTS.

From the new editon of Messrs. Geo.P.

Graves & Vinton-Thomas A. Bones-Mundelius

We welcome to the field of land and Rowell & Co's “ American Newspaper Di-

vs. O'Covaa...

mining law journalism, “ Brainard's Legal rectory,” which is now in press, it appears

Precedents," the first number of which that the newspapers and periodicals of all

Placer Mining Claims-Santa Rita Mines....... 3 monthly publication appeared in March. kinds issued in the United States and Ter-

It is an 8vo., with 48 pages—40 pages be- ritories now reach the imposing total of

W.H. Hyers-McCluskey vs. Tomason-Gilman vs.

ing reading matter-equal to nearly 17 11,196. This is an increase of 585 in twelve

Xolan....

pages of the LAND OWNER. The annual months. Nebraska's total grew from 175

Brooks vs. Tobien-Rockwell vs. Indian Widows.

subscription price is $2.00. M. D. Brain- to 201, and Illinois' from 890 to 904. The

ard, Editor, Washington, D. C. Send for most remarkable change has occurred in

Kessel vs. Spielman-Sturgeon vs. Rutz.

6 a sample copy.

Brown vs. Quinlan et al..

the Territories, in which the daily papers

have grown from 43 to 63, and the week.

Circular Instructions...

IMPORTANT ANNOUNCEMENT. lies from 169 to 243_Dakota being the

Beginning with the tenth volume (this chief area of activity. The number of

John Longnecker....

month), this publication will be issued monthlies throughout the country grew

Duthan B. Snody--Cash Entry-Scrip and War- semi-monthly. As nearly as possible, the from 976 to 1,034, while the dailies leaped

rant Locations

dates of issue will be the 1st and 15th of from 996 to 1,062.

every month.

Coe & Carter-Circular....

This change is made in response to a

LAND PERSONALS.

demand for earlier information, and from GEN. ELLERY C. FORD, the mining lawyer

PRIVATE LAND CLAIMS.

Rancho Gaudaloupe...

12 a great increase in the matter that ought of this city, is a powerful antagonist in a
to be laid before our readers.

contest before the Land Office and Interior

The subscription price must be increased Department. He is retained in nearly every

State of Florida..

accordingly, and THREE DOLLARS will be mineral land case of importance.

the annual subscription price until further

The firm of Julian & Meloy, attorneys-

Removal of Land Office from La Mesilla to Las

notice.

Cruces...

at-law, of Washington, consists of George

W. Julian, Chairman of Public Land Com.

SWAMP LAND CONTESTS.

Eberle vs. Southern Pacific R. R. Co., Branch Line 13

mittees in the 38th, 39th, 40th, and 41st

Southern Pacific R. R. Co. 18. Eberle......

Y. R., of Camden, Ark., states that after Congresses, and William A. Meloy, of the

Mineral Patents Issued

a man has contested the State's right to U. S. Supreme Court Bar.

Homestead Patents Issued

15 to select a certain tract as swamp, paid his

Cash Patents Issued ..

F. T. BICKFORD, formerly of the New

money for the many expenses, and taken York Tribune office in this city, has been

PROFESSIONAL CARDS. PAGE his time and attention therefor, it fre-appointed Special Agent of the General

Page & Hauke, Washington, D.C......

Curtis & Burdett, Washington, D. C...

quently happens that some fellow who has Land Office.

Capt. John Mullan, San Francisco & Washington. i been trespassing thereon, farming the

D. H. Talbot, Sioux City, Iowa.

EVANS, PADGETT & EMMONS, of Wash-

M. D. Brainard, Washington, D. C....

i alleged State land, and cutting off timber,

Ellery C. Ford, Washington, D. C...

Sickels & Randall, Washington, D.C..

I

thereby enjoying the rights of a citizen ington, D. C., constitute a strong firm of

Drummond & Bradford, Washington, D. C. i without paying any taxes, steps in and, on energetic young lawyers, who look closely

W.K. Mendenhall, Washington, D. C.

Julian & Meloy, Washington, D. C...

the plea of having valuable improvements after their clients' interests.

WC. Hill, Washington, D.C...

IV and being a settler thereon, homesteads

GENERAL WALTER H. Smith, Assistant

W.J. Johnston, Washington, D.C.

Chas. & Williaın B. King, Washington, D. C. the land without any further trouble, and Attorney General for the Interior Depart-

Walter H. Smith, Washington, D. C..

H. J. Frost, Washington, D. C....

at a trifling expense, thus getting the ben- ment under Secretary Delano, and a prom-

Evans, Padgett & Emmons, Washington, D. C.. IV fit of another party's labor and money.

inent lawyer in Ohio for many years prior

John H. Morgan, Washington, D. C...

To prevent these contests from being thereto, gives his attention to land and

Land Directory..

Page stopped, and to induce parties to protect mining contests before the Land Depart-

American Settler's Guide..

government interests, Y. R. suggests that ment and the Supreme Court.

Copp's Land Owner-Bound.

111 these so-called settlers be cited to appear at

Copp's Public Land Laws..

Munn & Co., Patents....

the hearings, and be allowed to set up such FARM property is the only real estate,

Copp's U.S. Mineral Lands

Copp's American Mining Code

IV proof as they choose touching their set- because it is the foundation of all wealth,

General Price List ....

iv tlement, improvements, etc.

and gives value to all other property,

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PRACTICE.

14, 1880 (21 Stat., 140), and on the same It appears that the relinquishment of GRAVES & VINTON.

day one Andrew Smail filed his declara- Mennitz and the declaratory statement of Certificates-- Local land officers have no author- tory statement, No. 6856, alleging settle- Ocovaa were not put on record at the ity to execute or charge for the certificates ment on that date as a pre-emptor. proper time, through the fault of the formentioned, and the issuing of such certifi- The application of Bones to contest, mer Register; and that on July 12, 1882, cates is contrary to the spirit of the land filed on the 23d of March, was endorsed, Conrad Mundelius entered contest against

laws. Inspection—The public records, however, of the apparently in the handwriting of the Reg- the homestead entry, alleging abandonvarious land offices are, or should be, open to ister, as follows: “File subject to present | ment thereof for a period of two years ; the inspection of anybody, under proper reg- contest.” Underneath this endorsement and that the land was vacant at date of ulations.

the Receiver noted over his own signature contest. SECRETARY TELLER to Commissioner Mc Far- a formal rejection of the application, as Subsequently, the facts relative to the land, February 19, 1883.

follows: "March 23, 1882–Rejected be previous relinquishment of the homestead Messrs. Graves & Vinton complain of

cause of pending contest to be heard on entry and the attempted filing of Ocovaa's your order of December 21, 1882, in which the 1st day of April, 1882, upon the same declaratory statement were developed, you direct the Register and Receiver at allegations contained in the within affida- and the declaratory statement was formHuron, Dakota Territory, not to issue cer- vit.

ally filed July 20, 1882. tificates to the effect that no adverse claim

No hearing was ordered. The first On July 22, 1882, Mundelius, learning of record is pending, the same to be used contest was closed on virtual confession of the homestead relinquishment, filed his hy loan agents, who furnish money to set- of abandonment by the filing of the re- declaratory statement for the tract, allegtlers with which to pay the Government linquishment on the 31st of March, and ing settlement July, 12, 1882.

At this price, or for other purposes.

there was no longer any question as to point of the case the homestead entry I concur in your view that the local land Callender's homestead entry, and conse- was out of the way, and there were two officers have no authority to execute or quently there was no basis for further pre-emption filings for the land, that of charge for the certificates mentioned, and hearing.

Ocovaa being earlier in point of time. I believe the issuing of such certificates to The land, instead of reverting to the On October 18, 1882, Ocovaa gave nobe contrary to the spirit of the land laws, United States by virtue of a declaration tice of her intention to make final proof. inasmuch as they might be considered to of forfeiture under Sec. 2297 of the Re- On the same date Mundelius entered concreate a right-or at least pass judgment vised Statutes, became public land, as be- test against said claim. By agreement of upon the question whether or not a right fore recited, under the act of May 14, 1880. parties the day for taking proof was posthad been established_under the law. It

It is manifest, therefore, that if a con- poned to October 27, 1882, at which date is one of those extra-official acts which, in test fully initiated and fixed for a certain both parties appeared, and you proceeded my opinion, should not be permitted.

day, was rendered unnecessary by the act to take the testimony of claimant, the diThe public records, however, of the va- of relinquishment, any application to con- rect and cross-examination lasting two rious land offices are, or should be, open to test, depending on the same facts and not days. the inspection of anybody, under proper yet made effective by notice and sum- You state that the testimony of claimregulations.

mons, was so much the more removed ant was far from satisfactory, and that on You are directed to inform Messrs. from the necessity for inquiry, and was the morning of the 29th her attorney filed Graves & Vinton that your order of De- barred from any further notice. It results, a withdrawal of her application to make cember 21st meets with the approval of

as of course, that no question as to the final proof. this department, but that they, or any propriety of allowing a second contest

You ask for instructions as to the effect other persons in good standing, will be after the institution of one proceeding re- of such withdrawal, viz. : “ Whether the permitted to examine the records of the mains to be answered here, as the cancel- claimant by this procedure abandoned, local land offices, or take abstracts of the lation upon the relinquishment left the surrendered, vacated or forfeited her claim same, when needed for their business pur- land open, and any party who should ob- to the land, and so far defaulted in mainposes, in such manner as not to interfere tain legal priority as a settler after such taining her assured right to the land as with the regular dispatch of the business cancellation, would be permitted to enter to debar her from again making applicaof the offices.

in the manner required by law. If Bones tion to prove up, thus leaving contestant

was such settler, he was bound to present in possession with the right of a first THOMAS A. BONES.

his claim by filing an entry within the claimant ? or is she privileged to make Contest-Relinquishment.—Where a contest is legal period, subject to all prior rights, if two, three, or any number of applications ended by relinquishment, the land in question any, of others who might also present and publications for final proof, and compel becomes public land subject to entry by the their claims. first rightful applicant. An application to

a contestant, until the end of the thirtycontest, made after such relinquishment,

The appeal is dismissed.

three months allowed a pre-emptor to prove should be dismissed.

up, to oppose a defaulting claimant ?" SECRETARY TELLER to Commissioner McFar

MUNDELIUS vs. OcovaA.

You are advised that you are to make land, March 7, 1883. I have considered the appeal of Thomas

Contest— Withdrawal.—The question at issue in up your decision upon the application to

the first hearing cannot be again brought for- make proof in this case upon the testiA. Bones from your decision of May 18, ward. The original claimant or any other mony taken, and in the same manner as if 1882, declining to recognize his applica- person may contest the succeeding claim on the application had not been withdrawn tion, filed March 23, 1882, to be allowed any other ground--for example, on

or attempted to be withdrawn; and if to contest the homestead entry of John

ground that the second party has not himself W. Callender, made September 3, 1880,

complied with the law; but the first party your decision rejects the application, and

cannot again set up her own claim in oppo- such decision should become final, the upon N. E. 4, 2, 121, 56, Watertown Dis- sition to the second application.

contesting applicant will have the right to trict, Dakota, No. 3721.

COMMISSIONER MCFARLAND to Reg. and Rec., offer proof on his own behalf. The quesOctober 27, 1881, Edwin W. Smail ap- Tucson, Arizona, January 11, 1883.

tion at issue in the first hearing cannot be plied to contest said entry, alleging aban- The facts in this case appear to be that again brought forward. The original donment, and hearing was set for the 19th the land in question was entered May 13, claimant or any other person may contest December, and was continued at request of 1880, by D. H. Mennitz, who made final the succeeding claim on any other ground both parties to April 1, 1882.

proof September 21, 1880, and relin--for example, on the ground that the On the 31st of March, Callender filed quished his claim October 12, 1880, and second party has not himself complied his relinquishment, and thereupon the that Patria

the that Patria Ocovaa made declaratory with the law; but the first party cannot land became subject to disposal without statement for the land October 8, 1880, al- again set up her own claim in opposition further action, as provided by act of May 'leging settlement October 4, 1880. to the second application.

the

Х. 53 7

1883.]

CO PP'S L A N D.OWNER.

3

MINES AND MINERALS. ously appropriated or reserved, which is forth by the filing of certain papers in this not the fact in the present case.

office, said to be copies of papers formerly PLACER MINING CLAIMS.

If such a construction was given to the filed and rejected and filed again with the Ten Acre Lots. -The division of 40 acre tracts provisions of the act of 1872, under con- surveyor general of New Mexico, alleging

into 10 acre lots was authorized for the pur-sideration, they could in nearly every case the existence of a claim of title derived pose of enabling the placer location to conform to the surveys.

be disregarded and rendered ineffective om the Spanish or Mexican governments Location.-It cannot be claimed that a location by the placer claimants.

to the Santa Rita Mines in New Mexico. of a narrow strip of laud 12,000 feet long, The locations would be made so as to

You were advised that said papers apextending through three sections, conforms cover only the valuable lands, and leaving peared to be duplicates of papers previ“as near as practicable to the rectangular the adjoining tracts in such a condition ously presented to the surveyor general, adjoining land had been previously appropri- and situation as to make it impossible in and which that officer had found not to ated or reserved, which is not the fact in the many cases to dispose of them.

contain any evidence of grant or title present case.

This office, in letter dated May 19, 1875, from either the Spanish or Mexican govCOMMISSIONER MCFARLAND to Reg. und Rec., to the surveyor-general of Montana ernments to the land or mines in question. Sacramento, Cal., January 16, 1883.

(Copp's M. L., p. 115), says, after quoting There was therefore nothing before this The land was surveyed and the plats the above mentioned provisions of the act office upon which any action could be filed in the local office in the latter part of of 1872, that “the location of a placer taken in respect to such alleged claim. 1865. The location was made July 30, mine upon surveyed public land, made You were also informed that as the land 1880, and covers the bed of Bear River for after May 10, 1872, should embrace legal appeared to be subject to entry under the 12,000 feet, and a small quantity of sur- subdivisions of the public lands, where the mining laws of the United States, and as face ground along its banks.

same can be done without interfering with no legal objections were found to the pendThe tract lies in Sections 12, 13, and 14, the rights of other bona fide mineral, agri- ing mineral entries, the same would proTp. 15 N., R. 9 E. When the claim was cultural, or other claimants in the same ceed to patent in usual course. surveyed, it was divided into two separate tract.”'

The letter of the 31st ult. was in reply lots, containing 48 and 34 acres respect- The only construction of the language to a request from you that the papers ively, and the portion in Section 13 was referred to which is consistent with the which had been filed in this office should omitted therefrom and from the applica- context of the act and the general inten- be reported to Congress under the eighth tion for patent, said section having been tion of Congress, as expressed in the laws section of the act of July 22, 1854. patented to the Central Pacific Railroad upon the same subject, is that the placer As the papers referred to contained Company December 19, 1866, which was locations upon the surveyed lands shall nothing which had not already been conlong prior to the mineral location. conform to the public surveys in all cases, sidered by the surveyor-general, and noth

The first law authorizing the patenting except where this is rendered impossible ing that could be construed into the basis of placer claims was the act of July 9, 1870, by the previous appropriation or reserva- of a claim under the treaty provisions, which expressly states that the locations tion of a portion of the legal subdivision there being no evidence of the existence made thereunder shall conform to the of 10 acres upon which the claim is situ- of any claim of right or title in the alleged United States surveys. The act of May ated.

grantor of your client, there was nothing 10, 1872, which is incorporated into sec- There appears to be another serious ob- to be sent to Congress, and your request tion 2331, U.S. Revised Statutes, provides jection to the location. It covers the bed was accordingly declined. among other things, that all placer mining of a large river for a long distance, and, You now desire to appeal to the Hon. claims thereafter located upon surveyed should the applicant obtain his patent, he Secretary of the Interior, and you lay belands “shall conform as near as practica- would acquire the right to and control fore me certain propositions as specificable with the United States system of pub- over the water in that portion of the tions of error, to wit: lic land surveys, and the rectangular sub-stream lying within his claim. It has been 1. Alleged error in assuming jurisdicdivisions of such surveys, **** but the policy of the government to withhold tion in this case contrary to the provisions where placer claims cannot be conformed patents for water rights, and leave them to of the act of Congress of July 22, 1854, to legal subdivisions, survey and plat shall be determined and protected by the local

2. Alleged error in refusing to lay behe made as on unsurveyed lands * * *.”

courts. It was clearly not the intention of fore Congress the decision of the Surveyor There were many tracts of surveyed land Congress to allow a large river for two or General of New Mexico, dated July 6, 1882, which could not be taken as placer claims three miles, with only a few feet of ground in regard to said private land claim, as reso long as the locations had to conform to along its banks, to be patented as a placer required by said act. the public surveys, on account of the prior claim.

3. Alleged error in refusing to reserve rights of other persons, especially lode

from sale or disposal the lands embraced claimants, to portions of the legal subdivi

by said private land claim until final action sions embracing such tracts; and the pur

SANTA RITA MINES.

thereon as provided by said act. pose of the provisions of the act of 1872, Appeal.--The right of appeal to the Secretary above quoted, was evidently to enable

4. Alleged error in holding that there is allowed to parties who are shown to have is no Santa Rita del Cobre private land

some interest in a cause or matter properly qualified parties to locate and obtain pat

pending, and in which a decision has been claim before this office which could be sent ents for the portions not previously ap- made.

to Congress under section eight of the act propriated or reserved. The privilege Stranger.--If any other rule were adopted a named, "inasmuch as Congress alone has granted to lode claimants of taking their

stranger could at any time, by the bare alle-
gation of a claim to a tract of land, appear

power to determine this question.” surface ground without regard to the pub

and demand all the rights and privileges of

You are advised that the question before lic surveys, was never extended to placer

a party to any suit which might be pending this office, and of which I have assumed claimants.

involving the title of such land.

jurisdiction, is the question of the rights of The division of 40 acre tracts into 10 COMMISSIONER MCFARLAND to Ford and Brain-certain mineral claimants under the minacre lots was authorized for the purpose ard, Washington, D. C., February 13, 1883. ing laws of the United States. of enabling the placer locations to conform I am in receipt of your letter of the 6th No adverse claim was filed in these to the surveys.

instant, in the form of notice of an appeal cases during the period of publication, It cannot be claimed that a location of from my action in reference to the matter and no reason has since been shown to a narrow strip of land 12,000 feet long, of certain mining claims, touching which me why the usual course of mineral adjuextending through three sections, conforms you were advised of the position of this dication should be suspended or delayed, “as near as practicable” to the rectangu- office by letters dated respectively January and I have so informed you. lar subdivisions of the public surveys, un- 20 and 31, 1883.

The right of appeal to the Secretary is less the adjoining land had been previ. The letter of the 20th ultimo was called 'allowed to parties who are shown to have

mence

some interest in a cause or matter proper

HOMESTEADS.

to contest Thomason's entry and to ly pending, and in which a decision has

W. H. HYERS.

make homestead entry for the N. E of been made. A claim cannot be set up by mere as

section 27, under the provisions of the ContestHomestead Declaratory Statement-Set

tlement.-A homestead party must in person third section of the act of May 14, 1880, sertion. A person who has not shown

make entry and commence settlement and which provides, " That any person who some evidence of a claim can have no improvements on the land claimed within six has settled, or shall hereafter settle on standing as a party to a case before this months from date of his declaratory state- any of the public lands of the United office.

ment.

States, whether surveyed or unsurveyed, If any other rule were adopted, a stranCommissioner McFARLAND to Reg. and Rec.,

with the intention of claiming the same

Mitchell, Dak., March 8, 1883. ger could at any time, by the bare allegation of a claim to a tract of land, appear claimant shall in

Section 2309 R. S. provides that the the same time to file his homestead appli

under the homestead laws, shall be allowed and demand all the rights and privileges

person, within six of a party to any suit which might be months from the date of bis Hd. D. S. cation, and perfect his original entry in

the United States land office, as is now alpending, involving the title of such land. make his actual entry of the land, com

lowed to settlers under the pre-emption For the same reasons it is provided by thereon, and thereafter fulfill all the re

settlement and improvements laws to put their claims on record, and his

right shall relate back to the date of setorder can be applied for to have proceed- quirements of the law. There is no tlement the same as if he settled under ings certified up to the Secretary, only by uncertainty as to what the statute re

the pre-emption laws." a party to a case. quires. The party must settle upon and

The contest was ordered, but McYour client, Mr. Hays, has not made commence improving his claim within six Cluskey's application to enter the tract himself a party to the case now pending months from date of his Hd. D. S. Fail

was rejected by reason of Thomason's in this office, involving the Santa Rita ing to do this, his entry is subject to con

entry. mineral entries. test. Department Circular dated Decem

The testimony shows that (his right The previous correspondence addressed ber 15, 1882, is explicit on this point. It under his pre-emption filing having exto you by this office, and to which ex- appears from the affidavit of contestant pired) McCluskey was resident on the ception is now taken by you, consisted that the homestead claimant, W. H. Hyers, land November 5, 1880, the date of canmerely of letters of advice informing you,

bas not complied with the law at any time cellation of Neel's entry, intending to as a matter of official courtesy, of the since April 19th, 1882.

Your action is therefore reversed, and to that cancellation the tract was under ap

claim it under the homestead laws. Prior status of the mineral entries. Information so given does not constitute an appealable a hearing ordered, under the rules.

propriation; but upon that event McClus. decision. Mr. Hays is not before this office

key had the same right a pre-emptor would as an appellant showing an affirmative right

MCCLUSKEY VS. THOMASON.

have had under the pre-emption laws, and in his own behalf, nor as a protestant Act of May 14, 1880.-A pre-emptor having he was authorized to enter it within three alleging failure of the mineral claimant to

failed to make due proof and payment, offered months from the time it became subject to comply with the law.

to make homestead entry of the same tract. further appropriation. Being a settler on It may be proper for me here to say for

Notwithstanding a prior homestead entry

thereon, he will be allowed to make home the tract November 5, no further act of your information that the adoption of any stead entry in view of the act of May 14, settlement was necessary, and his applicadifferent rule, upon the assumption that 1880.

tion of December 4th being within the such course is required or authorized in SECRETARY TELLER to Commissioner McFar- time a pre-emptor would be required to carrying out the provisions of the eighth land, February 16, 1883.

make a filing under a like settlement, section of the act of 1854,' would be in I have considered the case of Isaac Mc- should be allowed. He is, however, remy judgment to impute to that statute an Cluskey vs. Wm. P. Thomason, involving quired to make his entry withln sixty intention that the whole public domain the N. 1 of N. E. 1, the S. W. of N. E. Å, days from notice hiereof, otherwise the within the Territories of New Mexico and and the S. E. of N. W. 1 of Sec. 27, Tp. entry of Thomason will be allowed to Arizona may be placed in reservation at 27, Range 3, Ironton, Missouri, on appeal stand. On McCluskey's entry, that of the will or instance of any person or per- by McCluskey from your decision of Jan- Thomason will be cancelled. sons who might chance to assert a claim uary 21, 1882, dismissing the contest. Your decision is modified accordingly. by mere allegation unsupported by evi The record shows that McCluskey filed dence of grant or muniment of title from pre-emption declaratory statement, Octo

GILMAN VS. NOLAN. former sovereignties--a result repugnant ber 16th, alleging settlement September 12, Intention Atherton-Forcler Decision.- Gilman to public policy and destructive of public 1877, for the E. of the N. E. d, the S. W. entered upon the land with the bona fide iuand private rights. I do not think the act of N. E. 1, the S. E. of N. W. of said tent to appropriate the same under the homeof 1854 susceptible of such interpretation. section ; that one Neel made homestead stead laws. He was protected by the princi

ples of the Atherton-Fowler decision against Congress has unquestionably the power, entry, October 13, 1879, for the N. } of N.

the surprise of an adverse entry having no and the sole power, to determine the val- E. 1, and the S. W.. of N. E. of the foundation in any settlement right. idity or invalidity of claims arising under same section, which entry was cancelled on COMMISSIONER MCFARLAND to Reg. and Rec., treaty stipulations with Mexico; and all the local records November 5, 1880, on his

Pueblo, Colorado, Feb. 8, 1883. J. W. L. claims, whether adjudged by the surveyor relinquishment thereof, and that Thomason I have considered the case of Henry S. general to be valid or invalid, must be made homestead entry November 5, 1880, Gilman vs. Kavan. Nolan, involving the S. presented to Congress for final action; but of the tracts in dispute.

N. E. 4, and S. N. W. 1, Sec. 24, Twp. such submission, with its accompaniment On this record, it also appearing that 23 S., R. 43 W., on appeal from your deof a statutory reservation of the land McCluskey failed to make proof and pay- cision in favor of contestant. claimed, is restricted by the terms of the ment within the time required by law, Two hearings have been had in this case, act to claims cognizable under the laws, whereby in the presence of an adverse the first on October 27, 1879, and the seccustoms, and usages of Spain and Mexico. claim, his pre-emption right expired, the ond on April 7, 1881. It can hardly be supposed that imaginary land became subject to Thomason's entry It appears that Thomas. B. Nolan forclaims, not so cognizable, or claims unsup- upon cancellation of Neel's entry, and in merly inade homestead entry of this land, ported by some evidence of grant or title the absence of any other question his which he used for the purpose of a sheep from the former governments, can possess entry should be sustained.

ranch, having a house thereon for the acsufficient dignity to authorize their sub. It appears, however, that on December commodation of his herders, and that his mission to Congress, or to work a legal 4, 1880, McCluskey-alleging his own brother Kavan Nolan was employed by reservation of public lands of the United residence on and improvement of the land him as foreman in charge of this ranch. States.

covered by Thomason's entry, applied Gilman made settlement on the land in

February, 1879, built a house, moved in The contest was brought to determine pre-emption filing and the H. E. based with his family, and occupied and culti- which of the two parties had the better thereon should not be cancelled. vated the land, on which he has substantial right of entry. It is competent in such a The testimony shows that Brooks had improvements.

proceeding to attack the validity of an op- filed a former D. S. in the San Francisco He contested the previous homestead posing entry on any ground upon which it office, June 19, 1877, for a tract of land entry, which Thomas B. Nolan relin- may be liable to attack. Inceptive fraud, described on the records of that office. quished pending proceedings in contest. non-compliance with law, or abandonment, For the reason, as he alleges, that he had The entry was thereupon canceled by this may be shown against either party, as well filed a written abandonment of said tract, office.

as an affirmative right set up by either he was under the impression that he could Thomas B. Nolan obtained notice of the party. And fraud, illegality, or abandon- file a second time for other land. Consecancellation in advance of Gilman, and ment, are matters of which this office may quently, he filed on the tract embraced in caused Kavan Nolan to make another at any time take cognizance on behalf of his present homestead entry, and made homestead entry for the same land in his the United States, whatever the etfect may very valuable improvements thereon. own name before Gilman had knowledge be in respect to individuals, whether con- Of course, the second filing of Brooks of the proceedings. testants or otherwise.

was illegal, and his homestead entry based The Commissioner's etter of cancella- Upon all the testimony and proceedings thereon could not prevail in the face of a tion was received at the local office July in this case, I arrive at the following con- valid adverse claim; but it appears that 15, 1879. Kavan Nolan's entry was made clusions :

the additional H. E. of Tobien is located July 17, 1879, and on August 5, 1879, Gil- First. That Gilman entered upon the on the 40 embracing the house, spring, man filed his soldier's homestead declara- land with the bona fide intent to appropri- and other valuable improvements of tory statement and commenced a contestate the same under the homestead laws. Brooks; and as the law does not contemagainst the entry made by Kavan Nolan. Second. That he was protected by the plate the appropriation of such character

At the hearing bad October 27, 1879, principles of the Atherton and Fowler de- of land by additional homesteads, the Kavan Nolan made no appearace to testify cision of the Supreme Court against the entry of Tobien is held for cancellation to in his own behalf. Thomas B. Nolan ap- surprise of an adverse entry having no that extent, and the H. E. of Brooks will peared as a witness for his brother. It foundation in any settlement right. remain intact upon the record. was shown at this trial that Gilman had a Third. That the entry of Kavan Nolan His entry, however, must stand upon its bona fide residence on the land, and was was not made in good faith, nor for his own own merits in the matter of settlement, in full and peaceable possession at the use and benefit, but at the instance of no benefits accruing from his pre-emption date of Kavan Nolan's entry.

Thomas B. Nolan, and for the apparent claim, which was illegal and void from the Thomas B. Nolan testified that he had purpose of harassing Gilman and defeating beginning. given Kavan Nolan a bill of sale of the his entry. ranch house, the consideration named be- Fourth. That Nolan's failure to make or ROCKWELL VS. INDIAN WIDOWS. ing $30. This constituted Kavan Nolan's attempt to make any actual residence on Act of March 3, 1875 (13 Stat. 516).—This act sole claim to the land as a homestead party. the land, or otherwise to comply with the allows settlers prior to 1874 to take 160 acres The Register and Receiver thought it requirements of the homestead laws for a

of the reserved Indiau lands on certain con

ditions. doubtful if Kavan Nolan was at any time period of more than a year and a half after

Patent.--The patent erroneously issued for the on the land otherwise than as herder for the date of his entry, is a legal abandon

tract not in dispute can only be vacated by his brother, and they found that Gilman ment of any claim he might have had un- voluntary relinquishment through a proper had the better right to enter the land un- der his homestead entry.

instrument, or by proceedings in court. der the homestead laws.

His entry is accordingly held for cancel- SECRETARY TELLER to Commissioner Jc FarThe further hearing ordered by this of- lation, and Gilman's entry will be allowed land, March 9, 1883. fice was, after two postponements by stip- to be perfected on its merits.

I have considered the appeal of Charles ulation of counsel, set for April 7, 1881,

Rockwell from your decision of December at which time Gilman appeared personally

23, 1879, holding for cancellation his adand by counsel, and no appearance was

BROOKS VS. TOBIEN.

ditional homestead entry made February made by defendant.

Soldiers' Additional Homesteads.-A soldier's 11, 1876, for the E. of the N. W. of The hearing proceeded and the testi

additional homestead entry cannot be made Sec. 21, Tp. 18 N., R. 16 W., Reed City,

upon lands on which are located the house mony of witnesses present was taken. The

and other improvements of an actual settler Michigan. evidence showed that Gilman had contin

who has asserted his right to the land by a It appears that on July 31, 1879, the ued in sole occupation of the land; that pre-emption filing or homestead entry. Acting Secretary of this Department, conNolan had not established a residence COMMISSIONER MCFARLAND to Reg. and Rec., sidering the appeal of Rockwell from your thereon nor otherwise complied with the Humboldt, Califa, February 21, 1883. J. G.J. predecessor's decision of January 9, 1879, requirements of the homestead law, but I have examined the contested case of holding his entry for cancellation, found had abandoned the land, and was then re- Matthew Brooks vs. John Tobien, for- that the tract is within the reservation siding near Santa Fé, in New Mexico. warded with your letter of November 6, made for the Ottawa and Chippewa In

The Register and Receiver rendered a 1882, and involving title to the S. E. N. dians, in the State of Michigan, by the joint opinion, holding that the failure of E. Sec. 27, T. 5 Š., R. 7 E., H. M. treaty of July 31, 1855, and restored to Nolan to appear at the final hearing, either The records show that Brooks filed D. market by the acts of June 10, 1872 (17 in person or by attorney, after two post. S. 4144, December 7, alleging settlement Stat. 381) and March 3, 1875 (18 Stat. ponements by stipulation of counsel, was November 18, 1878, claiming the W. N. 516); that on April 30, 1875, Wah-sat-dinna virtual withdrawal from the contest, and W. Sec. 26, and E. I N. E. Sec. 27, and nee-no-qua and Me-lis-sa-nee-see-qua, widthat the evidence clearly showed that he that he transmuted same to H. E. No. ows of Indians of said tribes, applied at the had abandoned the land. They therefore 1728, November 11, 1880, Acts of March local office to enter respectively the N of recommended that his entry be canceled 3, 1877, and May 27, 1878.

the N. W. & and the S. į of the N. W. & and Gilman allowed to perfect entry under John Tobien filed Soldier's Additional of said section 21, as homesteads, and the homestead laws.

H. E. No. 1642, March 31, 1880, for the submitted proofs that they had occupied Counsel for Nolan appeal, and claim S. E. of N. E. $ Sec. 27, and S. E. ¢ of and improved the tracts since 1870; which that they were not called upon to defend S. W. 1, Sec. 35. Township plat filed applications were refused because they against the charge of abandonment, and January 23, 1878.

conflicted with soldiers' declarations Nos. they rely upon the technical filing by The contest was the result of letters 83 and 84, made April 10, 1875 ; that on Nolan in advance of Gilman to sustain "C," September 19 and November 2, 1881, August 31, 1875, your office directed a Nolan's entry.

ordering Brooks to show cause why his 'hearing to ascertain the qualifications of

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