ACTS OF APPLICANT-GOOD FAITH-DATE OF CONTEST.

BENNETT v. TAYLOR.

The petition, in an affidavit of contest against a timber-culture entry, that the contestant "be allowed to enter said tract under the homestead laws," is a sufficient application to validate the contest.

Secretary Teller to Commissioner McFarland, March 25, 1884.

SIR: I have considered the case of H. M. Bennett v. James W. Taylor, involving the S. of the SE. and the S. of the SW. of Sec. 9, T. 7 S., R. 31 E., Oxford, Idaho, on appeal by the first named from your decision of April 10, 1883, dismissing the contest.

Taylor's entry was made under the timber-culture law, and the reason given for your decision was the failure of Bennett to file application to enter the land at the date of initiating contest. Upon an examination of the facts in the case, I find that Taylor's timber-culture entry was made April 23, 1881; that Bennett's affidavit of contest, alleging failure to comply with the law in the matter of improvement and cultivation, was filed August 11, 1882; that he at that date filed no formal application to enter the land; but in his affidavit of contest, after asking for a hearing to substantiate his charges and have Taylor's entry canceled, he adds, as a part of his application, the following words: "and that he be allowed to enter said tract under the homestead laws of the United States."

On the evidence adduced at the hearing, which was had October 12, 1882, the register and receiver, on the 24th of November, 1882, recommended the cancellation of Taylor's entry, and that Bennett be allowed to make homestead entry for the tract in question.

On the 9th of December, 1882, Bennett filed his formal application to make homestead entry; but it was rejected because the prior timberculture entry of Taylor was still of record.

The papers were then sent up to your office, and, without going into the merits of the case on the facts presented at the hearing, you set aside the finding of the local office as to Taylor's entry, and dismissed the contest for the reason already mentioned, viz, the failure of contestant to apply to enter at the time of filing his application to contest. You base your decision on that of the Department, made November 14, 1882, in the case of Bundy v. Livingston (9 Copp, 173).

The evidence taken at the hearing is quite conclusive as to Taylor's failure to comply with the law in the matter of improvement and culti vation.

In fact he was in default, neither appearing at the hearing nor furnishing any evidence whatever in rebuttal of that presented by con

testant.

In view of all the facts and circumstances of the case, I think it

should be disposed of on the evidence referred to; that Taylor's entry should be canceled and Bennett's entry allowed.

The former is evidently not entitled to hold the land under his entry. It is true the latter did not at the date of initiating contest file a formal application to enter, but his request in his affidavit of contest, "that he be allowed to enter said tract under the homestead laws," may, I think, be regarded as sufficient to give him the status of a contestant within the meaning of the Bundy decision, which restricts a contest against a prior timber-culture entry to one who seeks to enter under the homestead or timber-culture laws. The petition in the affidavit of contest, "that he be allowed to enter," may be taken as evidence that he sought to enter, which evidence is confirmed and rendered conclusive by the fact that almost immediately after the hearing and decision by the register and receiver, and long before your decision dismissing the case, he proceeded to file, and did file, his formal application to make homestead entry for the tract.

All his acts, so far as the record shows, evidence his entire good faith, and, as I have said, may be regarded as giving him a standing as contestant within the meaning of the law and the decisions of the Department.

Your decision is therefore reversed. You will reinstate Bennett as contestant, cancel the timber culture entry of Taylor, and allow Bennett's homestead entry as of the date when he initiated contest.

PENDING UNDECIDED-SECOND DENIED.

SARAH RENNER.

Where an application for reinstatement is pending, an application to enter should not be entertained.

Assistant Secretary Joslyn to Commissioner McFarland, April 8, 1884.

SIR: I have considered the appeal of Sarah Renner from your decision of July 9, 1883, rejecting her application (as guardian for William W. Miller, heir of Johnson Miller, deceased, late of the United States Army) to make homestead entry for the SW. of Sec. 9, T. 1, R. 22, Kirwin, Kans.

It appears that Robert Taylor made homestead entry No. 10,592, for the tract in question, on April 19, 1879. An affidavit of contest alleging abandonment of the land by Taylor having been filed by one Mark Smith, a hearing was ordered and held May 22, 1882. From the testimony adduced on an ex parte showing the district officers decided that the allegation of abandonment was proved, and recommended that the entry be forfeited.

On August 22, 1882, your office canceled the entry.

Taylor presented an affidavit and application for reinstatement on April 23, 1883, which was received for further consideration.

On May 23 following, Mrs. Renner presented the application for entry before mentioned, which was rejected on the ground that as the application of Taylor had been received and was then pending and undecided, a subsequent application for entry could not be entertained. Your decision is affirmed.

7. CHANGE OF ENTRY.

BANKS VS. SMITH.

HOMESTEAD TO TIMBER CULTURE.

An application erroneous in form, returned for correction, should take effect from the date when first received at the local land office.

Mrs. Banks relinquished her homestead in the spring of 1878, intending to change it to a timber-culture entry; she remained in possession of the land while the relinquishment was pending; held that, being in possession under color of right, the land was not subject to Smith's homestead entry..

Secretary Teller to Commissioner McFarland, September 26, 1883.

SIR: I have considered the case of Sarah J. Banks v. John W. Smith, involving lots 1 and 2, and the E. of the NW. of Sec. 18, T. 26 S., R. 8 W., Wichita, Kans., on appeal by Mrs. Banks from your decision of September 5, 1882, awarding the land to Smith.

It appears from the record that Mrs. Banks made homestead entry No. 5,353 for the land on September 29, 1874, built a house on and otherwise improved it, and had her home there until the spring of 1878, when she became too old and feeble and sick to work it herself any longer; that, for the purpose of changing her homestead entry to a timber-culture entry, she relinquished all the right, title, and interest which she had acquired "by virtue of my [her] homestead entry," on May 20, 1878; that on said date she had her house, household effects, and growing crops on the land, though she herself was absent by reason of sickness; that said entry was canceled by your office on September 7, 1878, and by the local office on the 16th day of said month; and that on said September 16, 1878, she made timber-culture application and affidavit before a notary, which reached the local office two days after, was rejected because the printed words "under the provisions of the act of March 13, 1874," appeared in it (instead of the act of June 14, 1878), was amended, and her timber-culture entry No. 1,269 allowed on September 26, 1878, during which time she had planted the kind and. quantity of timber required by the law.

It appears further that John W. Smith, who was residing on a tract of the Osage lands, and who had full notice of the claim of Mrs. Banks, filed his soldier's declaratory statement for the land in contest on said

September 16, 1878, made homestead entry No. 6,943, and moved upon it in March, 1879, and sowed a crop on part of the land broken by Mrs. Banks.

Hearing was had in order to determine whether the facts warranted the application of the Atherton-Fowler doctrine, and your decision holds that "it does not appear that Smith took violent possession of the tract, or even occupied the dwelling erected by Mrs. Banks," and that therefore the Atherton-Fowler doctrine does not apply; and you rest your decision on the case of Lawless v. Anderson (1 Hill's L. Cases, 57).

I find myself compelled to dissent from this view of the law applicable to the case. In Lawless v. Anderson the prior settler had not complied with the statute as to inhabiting the land or building a dwelling, and by the express terms of the law (section 2273, Rev. Stat.) he had no right to the land at date of Anderson's entry. But in the case at bar, Mrs. Banks was in possession of the land by color of law at date of Smith's entry; her relinquishment was of whatever homestead right she had acquired by her entry, and she had no intention to abandon her possession of the land; being absent sick, she was not only constructively present in person, but she was there by her dwelling-house, her improvements, and her growing crops, with full notice of which Smith is charged; and she therefore had a valuable property and right with respect to the land, which excluded entrance on her possession, under guise of a settlement claim, as absolutely as did the fences on the unsurveyed lands of the Soscol Ranch.

As held in Atherton v. Fowler (96 U. S., 513), the right to make a settlement is to be exercised on unsettled land; the right to make improvements is to be exercised on unimproved land; the right to erect a dwelling-house is to be exercised on vacant land; none of these things can be done on land when it is occupied and used by others (Hosmer v. Wallace, 97 U. S., 580).

This doctrine is not to be extended to cases where the prior settler is himself a mere trespasser on the public land (Powers v. Forbes, 7 Land Owner, 149), or has disregarded statutory requirements (Lawless v. Anderson, supra); but it is directly applicable to the case at bar, where bona-fide entry and improvement had given a legal possessory right to the land, which the claimant continuously asserted, even during the time when she was lawfully changing the form of her entry from homestead to timber culture. A right so acquired and maintained other settlers are bound to respect, and the Government is bound to protect it by every consideration of justice and good faith.

It is my opinion that Smith's entry should be canceled, and that Mrs. Banks is entitled to entry as of September 18, 1878, the date of her first application, the error in said application being merely an error in form, Your decision is accordingly reversed.

8. COMMUTATION.

TALKINGTON'S HEIRS v. HEMPFLING.

RESIDENCE-PURCHASE-ACT JUNE 15, 1880

If the homestead entryman was entitled to patent at date of his death, his heirs succeed to the right.

Where his house was by mistake built thirty yards outside of the lines of his claim, but was occupied by him in good faith, it will be regarded as a constructive residence on the land.

Where he paid the commutation price for the land, and the receiver never accounted for it, his heirs must again pay said price before patent will issue.

Secretary Teller to Commissioner McFarland, October 22, 1883. SIR: I have considered the case of Charles Lewis, guardian of the minor heirs of Isaac W. Talkington, deceased, v. John Hempfling, involving N. of the SE. and the SE. of the NE. of Sec. 21, T. 7 1 N., R. 18 W., Dardanelle district, Arkansas, on appeal by Hempfling from your decision of June 10, 1882.

It appears that Talkington made homestead entry No. 3,886, February 15, 1870, of the N. of the SE. of Sec. 21, and that the entry was canceled December 1, 1876, for alleged relinquishment. It having been shown subsequently, however, that Talkington had commuted his entry and paid $2.50 cash per acre for the land, receiving therefor duplicate receipt No. 7,419, dated August 20, 1872, and had died April 20, 1874, and that the relinquishment was fraudulent-the same bearing date June 5, 1876-your office re-instated said entry, April 5, 1878, and directed the register and receiver to advise Talkington's heirs or legal representatives that they could elect one of two methods of acquiring title to the tract covered by decedent's entry, to wit: either to furnish proof of decedent's compliance with legal requirements (in point of res idence and cultivation), up to the date of his decease, and of such compliance by the widow or heirs from that date until the expiration of five years from the date of his entry, which proof could be submitted to the board of equitable adjudication, the statutory period having expired; or, to furnish new commutation proof showing residence and cultivation by the ancestor up to the date of the old commutation proof and payment, and to pay the legal price for the land. The heirs having elected to adopt the latter or alternative method, the register and receiver transmitted to your office, per letter dated November 18, 1881, the new commutation proof presented by the guardian, together with certain testimony submitted by Hempfling in support of his homestead entry, No. 14,834, which embraced the tract in question, and had been erroneously allowed by the register and receiver July 7, 1880. Under date of September 4, 1880, your office advised the register and receiver that Hempfling's entry conflicted with Talkington's as to the N. of the SE. , and they thereupon (September 13) notified Hempfling.

The regis