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§ 73. By virtue of the act of May 14, 1880, any person who has made a settlement on the public lands under the pre-emption laws, and has subsequent to such settlement changed his filing in pursuance of law to that of a homestead entry upon the same tract of land, is entitled to retain such homestead entry subject to provisions of law relating to the same, and to have the time required to perfect his title under the homestead laws computed from the date of his original settlement heretofore made or hereafter to be made under the pre-emption laws.

19 Stat. 404; 20 Id. 63.

§ 74. Congress, by the following act, has created another class of settlers who need not be qualified like pre-emptors or hometead settlers:

"All persons who shall have settled and made valuable and permanent improvements upon any odd-numbered section of land within any railroad withdrawal in good faith, and with the permission or license of the railroad company for whose benefit the grant shall have been made, and with the expectation of purchasing from such company the land so settled upon, which land so settled upon and improved may for any cause be restored to the public domain, and at the time of such restoration may not be entitled to enter and acquire title to such land under the homestead pre-emptions or timber-culture laws of the United States, shall be permitted at any time within three months of such restoration, and under such rules and regulations as the commissioner of the general land office may prescribe, to purchase, not to exceed 160 acres in extent of the same by legal subdivisions, at the price of $2.50 per acre, and to receive a patent therefor.

"Approved January 13, 1881."

Homestead entries can be made for not more than one quarter-section, or 160 acres of land.

§ 75. Fees in Land Office.-The land office fees and commissions, payable when application is made, are as follows:

In Alabama, Arkansas, Dakota, Florida, Iowa, Kansas, Louisiana, Michigan, Minnesota, Missouri, and Nebraska-land at $2.50 per acre: For 160 acres, $18; for 80 acres, $9; for 40 acres, $7. Land at $1.25 per acre: For 160 acres, $14; for 80 acres, $7; for 40 acres, $6.

In Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming-land at $2.50 per acre: For 160 acres, $22; for 80 acres, $11; for 40

acres, $8. Land at $1.25 per acre: For 160 acres, $16; for 80 acres, $8; for 40 acres, $6.50.

§ 76. Directions how to Proceed.-When a person desires to enter a tract of land upon which he has not established a residence and made improvements, he must appear personally at the district land office and present his application, and must make the required affidavits before the register and receiver. He must then establish his actual residence (in a house) upon the land within six months from date of entry, unless a further time be allowed by the land office, and must reside upon the land continuously for the period prescribed by law. In case of a single person, the actual residence must be established within the same time, and must be continuously and actually maintained for the same period. The homestead affidavit can be made before the clerk of the county court only in cases where the family of the applicant, or some one member thereof, is actually residing on land which he desires to enter, and on which he has made bona fide improvement and settlement, and when he is prevented by reason of distance, bodily infirmity, or other good cause, from personal attendance at the district land office. In such cases the applicant must state, in a supplemental affidavit, the facts of such settlement, improvement, and residence; what acts of settlement have been performed and when made; the nature, extent, and value of the improvements; and what member or members of his family are residing on the land; and the length of time such residence has been maintained, and the cause specifically why the applicant can not appear at the local office.

Circular, March 20, 1883.

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$77. How Initiated.-Contests may be initiated by a party in interest, or by any other person, in the following cases: 1. Alleged abandoned homestead entries.

R. S. 2297.

2. Alleged abandoned or forfeited timber-culture entries. 20 Stat. 113.

In all other cases contests can be initiated only by a party in interest. In every case of application for a hearing, an affidavit must be filed by the contestant with the register and receiver, fully setting forth the facts which constitute the ground of contest. Where an entry has been allowed and remains of record, the affidavit of the contestant must be accompanied by the affidavits of one or more witnesses in support of the allegations made.

Rules of Practice, as to ordering hearings, see Rules of Practice, 5, 6, 7. $78. Notice of Contest.-As to what the notice must contain, see rule 9 of Practice.

Service of Notice.-Personal notice must be made in all cases when possible, and when personal service can not be made, this fact must be shown by affidavit. Service by publication may be made by printing in some newspaper printed in the county where the land in contest lies; and if no newspaper be printed in such county, then in the newspaper printed in the county nearest to such land.

20 Stat. 91; see also Rules of Practice.

As to the sufficiency of a notice, Secretary Schurz holds that "information which makes it the duty of a party to made inquiry, and shows where it may be effectually made, is notice of all facts to which such inquiry might lead." He also revises the rule of courts, and holds that "the sufficiency of notice in contested land cases is a question of fact."

Copp's L. L., vol. 2, p. 702.

But in the following case between a settler and a railroad company, a somewhat different rule was promulgated by Secretary Chandler, in which he held that notice must also be given to the opposing party who made the homestead entry, of the time and place where the contest will be heard. This notice should state the issues to be tried, and should as far as reasonably possible give the party to whom it issues specific information of the charges against him, or the nature of the claim set up in opposition to his, so that he may be able to present evidence to meet it. A simple notice of the hearing is wholly insufficient, and no decision based upon such notice can stand.

Watts v. R. R. Co., Copp's L. L., vol. 2, p. 863.

§ 79. A homestead party who procures the relinquishment of a sworn statement under the timber act of 1878 acquires no preference until the question of the character of the land has been decided.

Copp's L. O., July, 1882, p. 79.

A contest with the government is not a contest with adverse claims, and can not be brought within the act of June 16, 1880.

Case of Thomas Guinean, Copp's L. O., Nov. 1882, p. 153.

When one contest against a homestead entry is pending, a second application to contest will be rejected.

Application of Thomas Madison, Copp's L. O., April, 1882, p. 7.

In contests between homestead and mineral claimants, the burden of proof is on the mineral claimant; and in contests between homestead and railroad claimants, the burden is usually upon the party claiming through the railroad grant.

Small v. Howell, Copp's L. O., Dec. 1882.

When the proceedings before the register and receiver are lost, there must be an affidavit as to the facts, and a contest de novo will be ordered as if no proceedings had ever been had. Zeigler's Case, Copp's L. O., June, 1882.

§ 80. A valid homestead claim is an appropriation of the

land, and remains such until a forfeiture is declared, and the reservation is removed. But in railroad cases, if a condition precedent is not complied with within the time provided, no act or declaration of forfeiture is necessary, and no subsequent performance can avail. And when such declaration is necessary, a legislative act directing the possession and appropriation of the land is equivalent to office found.

Insurance Co. v. Mowry, 6 Otto, 544; McKibbin v. The United States, 7 Id. 204; 5 Wall. 213.

§ 81. Where a settler upon public land dies before he has complied with the law in reference to residence and cultivation, he has no devisable estate, and the children take nothing by virtue of his entry. Heirs of a deceased settler do not take their rights by descent, but as donees of the government.

Hall et al. v. Russell et al., Sup. Ct. U. S., Oct. 5, 1879.

No land can be awarded to unknown heirs, because section 2291 of the revised statutes does not provide for the issuance of patents to any but citizens of the United States.

Letter of Secretary Schurz, Copp's L. O., vol. 7, p. 91.

§ 82. Other things being equal, priority of settlement determines the rights of the parties in all cases arising under the homestead laws, and where the party making the prior settlement has in all respects complied with the law, he is entitled to the land without regard to anything which a party making a later settlement may have done. In conflicts between a state and a settler, the party taking the first initiatory step, if the same is followed up to patent, acquires the better title, and the patent relates back to the initiatory act, and cuts off all intervening claims.

Stark v. Baldwin, 7 Neb. 114; Shipley v. Cowan, 1 Otto, 330.

§ 83. Homestead entries require continuous residence and cultivation; the fact that a homesteader camped and ate and slept on the land can not be regarded as a compliance with the statute. The applicant must have a house on the land, which he makes his home; and he must cultivate the land by raising any of the products ordinarily cultivated by farmers. The law should be liberally construed; and in grazing regions, using the land for stock-raising and dairy production is sufficient proof of cultivation.

Copp's L. O., vol. 7, p. 135; see also case of Edwards v. Sexton, under title, Final Proof.

§ 84.

Parties can not, under the law of May 14, 1880, be

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