PRE-EMPTION- SECTION 2260, R. S.-REVIEW.

ASAHEL RUSSELL.

In determining whether a pre-emptor is disqualified under the second inhibitory clause of section 2260, R. S., his relation to the land formerly owned must be considered with respect to the date of establishing actual residence on the pre-emption claim, aud not with reference to the date of settlement thereon.

A motion for review, filed in due time, precludes, while pending, the intervention of adverse claims.

Acting Secretary Chandler to the Commissioner of the General Land Office, May 20, 1891.

I have considered the motion filed by the attorney of Asahel Russell for review of departmental decision of May 6, 1889, affirming the decision of your office rejecting Russell's final proof in support of his preemption filing for the N. of the SE. and the N. of the SW. 4 of Sec. 2, T. 23 S. R. 57 W. Pueblo, Colorado land district.

Russell filed his declaratory statement for said land June 23, 1884, alleging settlement thereon June 5th. On March 22, 1887, he made final proof in support of said filing. This proof was rejected by the local officers for the reason that it was shown that he removed from land of his own to settle on this land. He applied soon afterwards to make proof anew, and was allowed to do so. This proof made August 29, 1887, was also rejected for the same reason the former had been. Your office approved the action of the local officers and held the filing for cancellation. Upon appeal to this Department that decision was affirmed.

It seems that Russell made homestead entry for the NW. of Sec. 1 T. 23 S., R. 57 W., said land district, and on May 19, 1884, submitted final proof thereunder upon which final certificate issued June 18, 1884. He testifies that on June 19, 1884, he sold his homestead to his son and files a written contract of sale purporting to have been signed that day. The deed was, according to the testimony, signed July 2, although not acknowledged until the following December. The statement as to the date of the claimant's settlement on this land are contradictory, but it sufficiently appears that soon after making final proof for the homestead tract he moved therefrom to land owned by his mother, and remained there until he established his actual residence on the land here claimed November 20, 1884. At the date he established his actual residence on this pre-emption claim he did not remove from land of his own. In the decision complained of it is said:

It is probable that when the second witnesses swear that claimant moved from his mother's to the pre-emption claim, they refer to the month of November, when he commenced living upon the tract. But the claim was initiated by settlement and the qualifications of the claimant at the date of settlement determine whether the claim was legally initiated. If he was not qualified when the actual settlement was made, the claim was invalid at its inception.

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Shortly after the rendition of the decision in this case, this Department held in the case of David Lee (8 L. D, 502) that the disqualification under the second clause of section 2260 R. S., being of a "person who quits or abandons his residence on his own land to reside on the public land in the same State of Territory," must be held as relating to the date of actual residence and not to the date of settlement. In that case it was decided that Lee, who was living on land of his own at the date of his settlement (July 5, 1884) on the land he was claiming under the pre-emption law, but who sold his homestead February 5, 1886, prior to the establishment of actual residence on the pre-emption claim April 20, 1886, did not come within the inhibition of said section 2260. The Lee case is cited, and the doctrine there laid down is re-affirmed in the recent case of Michael Campbell (12 L. D., 244). Under the authority of these decisions, it seems to have been error to hold that Russell came within the inhibition of said section. The sale of his homestead is not disputed and it is sufficiently shown that even if he had not sold that tract, he removed from it some time in May or June 1884 to land belonging to his mother, where he lived until the following November, when he moved to the tract here involved. The said departmental decision of May 6, 1889, is therefore under the authority of the cases cited supra, revoked and set aside, the decision of your office is reversed, and it is directed that Russell's final proof, which seems entirely satisfactory as to residence, improvements, and cultivation, showing as it does over two years actual and continuous residence of the claimant and his family, improvements consisting of a dwelling house, out-houses, fencing and ditches of the value of $350 to $575, and eighty acres of land under cultivation, be approved, and that Russell be allowed to complete his entry.

After the filing of the motion for review the attorneys for one Robert Mooneyham, filed in this office a "protest against the re-opening" of this case. In this protest which is verified and corroborated, it is alleged that on May 9, 1889, Mooneyham made homestead entry for the land included in Russell's claim; that afterwards one George Williford, who, it is asserted, is a son-in-law of Russell, applied to make homestead entry for said land, which application was rejected by the local officers because of the entry of Mooneyham; that Williford then filed an affidavit of contest against Mooneyham's entry, alleging prior settlement on said land, upon which a hearing was ordered; but before the day fixed for such hearing, the local officers received from the General Land Office notice of the filing of Russell's motion for review, whereupon further action in said contest was indefinitely postponed; that after Russell had learned of the cancellation of his filing, he told the affiant (Mooneyham) that he had sold his improvements to Williford and had no further interest in the case.

The facts thus above shown do not furnish any sufficient reason for refusing to consider Russell's motion and granting him relief, if he has

shown himself entitled thereto. Mooneyham's interest was acquired while the question of Russell's right to the land was yet not finally determined and with full knowledge of the fact that the land might be awarded to Russell. His claim must therefore remain subject to the final disposition of Russell's case.

FEES OF LOCAL OFFICERS IN CONTEST CASES.

GAY v. DICKERSON.

In contest cases the local officers are not allowed to collect fees for reducing testimony to writing, if such service is not performed by them, or by one acting under their employment.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, May 20, 1891.

I have considered the appeal of Eugene Gay from your office decision of November 7, 1889, requiring him to pay $108.00 fees to the register and receiver of the land office at Couer d'Alene, Idaho.

The record shows that on June 11, 1889, he forwarded to your office an affidavit setting forth that the register and receiver at the land office at Couer d'Alene, Idaho, refused to consider testimony in support of his contest until he should pay them the amount of $108.00, claimed by them for reducing said testimony to writing.

It appears that Gay had initiated a contest against the homestead entry of Dickerson. A hearing was had about the last of May, 1889, before the local officers. The first day's testimony was taken down in long-hand by a clerk hired for that purpose by the local officers. On the second day of the hearing it was agreed by the register and the attorneys on both sides of the case that a stenographer was to be employed by contestant to take said testimony in short-hand and reduce the same to writing; this stenographer was to be substituted for the clerk who had acted the first day. She was employed and took said testimony offered before the register and receiver and reduced the same to writing, the contestant paying her therefor at the rate of 22 cents per hundred words, amounting in all to $108.

It is now claimed by the register and receiver that he engaged the stenographer and agreed to pay her, and also agreed to pay them for examining and passing upon said evidence the same amount as they would have received if they themselves had reduced said testimony to writing. They have filed a number of affidavits showing that it was the understanding of all parties concerned that they should be paid for taking said testimony the same as if they had reduced it to writing instead of the stenographer.

Gay has also filed a number of affidavits showing that no such understanding existed between the parties, and that he understood that the

stenographer was to be substituted for the clerk and to be paid by him for reducing the testimony to writing, and that he was not to pay any further amounts therefor.

November 7, 1889, you directed contestant to pay the fees claimed by the register and receiver, and stated that if the same was not paid his contest would be dismissed.

Gay has appealed from said ruling to this Department.

The only question presented by the record is: Are the register and receiver allowed to collect fees for reducing testimony to writing where they do not do the work themselves or hire others to do it?

The fees for taking testimony are provided for in subdivision ten of section 2238 of the Revised Statutes, which allows fees for testimony reduced to writing by local officers. The writing of testimony is merely clerical work; the purpose of the law relative to fees for "reducing testimony to writing" is to compensate the register and receiver for such work when done by them. In the case at bar the work was not done by them, nor by their employé, but by contestant's agent, who has been paid for doing the same. The local officers were present; the testimony was taken before them, and they need not have agreed to have the testi mony written by another if they had desired to do the work themselves. A law providing for fees cannot be enlarged so as to grant fees by implication or inference; there must be plain authority for such allow ance. In this case, the register and receiver have no authority to collect fees from Gay for "reducing testimony to writing," when neither they nor any one employed by them performed the work. (Caldwell r. Smith, 3 L. D., 125; Frank W. Hull, 9 L. D., 60.)

It is claimed that there was an understanding or contract entered into by the local officers and contestant by which they were to receive fees for examining said testimony equal to the amount they would have been entitled to if they had reduced the testimony to writing. This is stoutly denied by Gay, and the affidavits are so contradictory that it is difficult to determine whether there was a contract or not. However, that is not important, for the duties and rights of the local officers are fixed by law and must be determined by it.

Under date of September 2, 1884 (3 L. D., 107), Commissioner McFar land instructed the register and receiver at Mitchell, Dakota, as follows:

You are advised that you have no authority to make two charges for taking testimony. You can charge fifteen cents once for each one hundred words reduced to writing by you or at your individual expense, and transmitted in readable form to this office, and you cannot charge any more.

If parties choose to employ stenographers to take down and write out testimony, they may do so. But in such case they make their own contracts, and you can have no interest in such contracts, nor make any charge in connection with work so done. If you cause the testimony to be taken down and written out, you must do the whole for the legal charge of fifteen cents for each one hundred words.

I am of the opinion that the local officers were not authorized to col. lect said fee in this case, inasmuch as the testimony was not "reduced by them to writing."

Your office decision is accordingly reversed. You will direct the local officers to consider contestant's testimony upon its merits.

SUCCESSFUL CONTESTANT-INTERVENING ENTRY.

NEWBAUR v. BUSH.

A successful contestant who resides upon, improves and cultivates the land covered by the canceled entry, but fails, through ignorance, to enter the same within the statutory period, is not precluded from subsequently entering said land by the intervening entry of another, secured through wrongful means, and fraudulent intent, and with notice of the contestant's claim.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, May 20, 1891.

The case of Mathias Newbaur v. William S. Bush is here on appeal of the former from your decision of September 18, 1888(9), dismissing his contest against the homestead entry of Bush for the SE. of Sec. 18, T. 29, R. 15 W., Niobrara, Nebraska.

The record and evidence present the following facts:

Some time prior to June 30, 1884, Newbaur successfully contested. the homestead entry of one Zadina for this land, and on July 12, of the same year, he was notified of his preference right of entry, but failed to exercise the same, until August 14, 1885, when he applied to make homestead entry for the land, but his application was denied, for the reason that Bush had made homestead entry for the same on August 7, a week before his application was received at the local office.

September 14, of the same year, Newbaur subscribed to the following affidavit:

Mathias Newbaur of lawful age, being first duly sworn according to law, deposes and says that he is the identical person who entered a contest against the homestead No. 8216 of James Zadina for the SE. 1-18-29-15 west, on the 21st day of September 1833, which hearing was had on December 17th, 1883. Claim was canceled June 30, 1881; notified July 12th, 1884, which was received by affiant, but he being an ignorant German he supposed the paper was his homestead receipt, and so believed till about the 5th day of August 1885, at which time he sent his son Joseph to Atkinson Holt county, Nebraska, to consult with some one about what he should do; that his said son Joseph consulted with a firm of attorneys there, to wit: Snow and Harrington, that said Snow and Harrington informed said Joseph Newbaur that he could make the homestead entry for his father, the said affiant, and while said Harrington was taking the number of said land, and as soon as that was done, Snow told him he could not make out the application for less than $100.00. On the 6th day of August 1885, said Snow and Harrington sent one Win. S. Bush'out to see the land, and the said Bush sent one Rev. Delos Hale to view said tract, and said Hale reported to said Bush on the same day that it was a fine quarter, but that there is a family living thereon, and that there were valuable improvements, crops growing on it, etc.,