subsequent to the rendition thereof, information was conveyed to this Department that one Carrie F. Higby claimed adversely to Hartzell forty acres of said land, while the remaining forty acres were claimed by one Charles A. Pinkham. On receipt of this information, the Secretary recalled the said decision, and, by letter of December 26, 1890, directed your office to report the facts "pertaining to the adverse claims of said Hartzell, Higby, and Pinkham."

January 10, 1891, in response to said letter, your office reported that on July 13, 1888, fifteen days prior to Hartzell's application to enter the additional eighty acres, Higby made homestead entry for forty acres of the same tract, namely: the SW. of the SE. of Sec. 7, same township and range; and that on February 20, 1889, Pinkham filed preemption declaratory statement for the remaining forty acres, namely: the NW. of the NW. of Sec. 17, alleging settlement February 16, of the same year.

October 9, 1889, he made proof and cash entry for the same, which was held for cancellation by your office letter of October 25, 1890, because his settlement and filing were made pending the application of Hartzell to amend his entry, so as to embrace this land.

The homestead entry of Higby having been made prior to the appli cation of Hartzell, it must prevail over his claim. The settlement and filing of Pinkham, however, were both made subsequent to the application of Hartzell, and such application operated to reserve the land from other disposition until final action thereon.

Hartzell was insisting upon his right to an additional entry when the law of March 2, 1889, was passed, granting such additional entry. His application not having been finally acted upon prior to the passage of said act, he was entitled to the benefits thereof; and the entry of Pinkham having been made before final action by the Department on the application of Hartzell, must be held subject to the rights of Hartzell. (See case of Arthur P. Toombs, 10 L. D., 192.)

It follows that the decision in the case of Thomas B. Hartzell (10 L. D., 681) was wrong, in so far as it affected the rights of Higby to the SW. of the SE. 4 of Sec. 7 of said township and range, and the same is hereby modified and her entry allowed to stand, subject to compliance with the law.

The application of Hartzell will therefore be sustained as to the NW. of the NW. of Sec. 17, T. 14 S., R. 1 W., and the cash entry of Pinkham for the same will be cancelled.

Higby and Pinkham have both appealed from your office decisions of October 25, and 30, 1890, cancelling their said entries. As their claims together cover the same land claimed by Hartzell, the records in the several cases are consolidated, and the claims of all the parties being thus before me, have been considered and determined herein as

one case.

You will therefore direct the register and receiver at Los Angeles, California, to adjust the claims of these several parties as herein directed.

PRE-EMPTION FINAL PROOF-AFFIDAVIT.

NANCY J. CREWS.

Pre-emption final proof cannot be accepted where the final affidavit is made before a notary public.

Acting Secretary Chandler to the Commissioner of the General Land Office, June 1, 1891.

By letter of October 26, 1888, your office affirmed the action of the local office in rejecting the preemption proof of Nancy J. Crews for the SW. 4, Sec. 8, T. 5 S., R. 42 W., Denver, Colorado, for the reason that said township had been withdrawn on account of alleged irregularities in the survey. Your office further said that, under no circumstances, could the proof be received as it had been made before a notary public, and not before the officers named in the published notice.

Claimant appealed. When the case was reached here, it appeared that a new survey had been accepted, and in view of this fact, the case, on May 1, 1890, was returned to your office for proper disposition, with the suggestion as to claimant, that "She will of course, be required to make proof according to the law and regulations."

I am now in receipt of your letter of April 30, transmitting a letter from L. E. Crews of Chicago, Illinois, and requesting "instructions as to whether or not entry shall be allowed upon the proof heretofore made and herewith forwarded, upon payment of the required purchase money."

Mr. Crews says that claimant was stricken with paralysis in April, 1889, "and has never taken a step since;" that she is very old and feeble, and it is absolutely impossible for her to go to the local office from her present home in Wayne county, Illinois.

It appears, from the published notice transmitted with your letter, that claimant intended to make proof before the register or receiver at Denver, on July 24, 1888. Instead of so doing, she went before a notary public on that day, made the final affidavit, and submitted proof.

Section 2262 of the Revised Statutes requires the claimant to make his affidavit before the register or receiver of the land district in which the land is situated; the act of June 9, 1880 (21 Stat., 169) authorizes such affidavit to be made before the clerk of the county court or of any court of record, of the county and State, or district and Territory in which the lands are situated, and in case the lands are situated in an unorganized county, the affidavit may be made in a similar manner in any adjacent county in such State or Territory. This is the present state of the law, with the exception that a commissioner of the United States circuit court, under similar circumstances, may administer the oath under the act of May 26, 1890 (26 Stat., 391). See Edward Bowker (11 L. D., 361).

As claimant failed to make the affidavit, as required by law, I am bound to hold that entry cannot be allowed on the proof as made. This fact alone is sufficient to invalidate the proof.

TIMBER LAND ENTRY-DELAYED PURCHASE.

SVEN P. JANSSEN.

An applicant, in good faith, under the act of June 3, 1878, who, through no fault of his own, is unable to procure the purchase money at the time fixed for the completion of the entry, may be permitted on new notice, and in absence of adverse claims to complete the purchase.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, June 1, 1891.

I have considered the appeal of Sven P. Janssen from your decision of January 17, 1890, rejecting his application for an extension of time until October 24, 1890, within which time to complete the purchase, under act of June 3, 1878, of the SE. 4, Sec. 13, Tp. 12 N., R. 13 E., M. D. M., Sacramento, California, Land District.

It appears, from the letter of the register and receiver, of April 11, 1889, to your office, that the taking of proof in the case was continued until after ninety days had elapsed, from date of giving notice, and that while the register regarded the proof as complete, the receiver declined to accept the money, because the ninety days had elapsed.

By letter "C" of your office, October 4, 1889, it appears that the sworn statement of Janssen was filed December 18, 1888. The hearing was adjourned on day of hearing, after taking the testimony of two witnesses, because the claimant was too ill to appear at the time set. He afterwards appeared, and the proof as made, being satisfactory, and there being no adverse claims, the local officers were directed to allow him to complete his entry.

It appears by the affidavit, November 20, 1889, of the applicant that before this letter reached the office, he had been unfortunate in having his arm broken, and that doctor bills and other expense had been such that he did not have the money to make the purchase at this time, although he did have it at the time he made proof. He says in his affidavit, he expects to have the money by October 24, 1890; that he has a regular job, etc. The date fixed by him has passed.

Inasmuch as this applicant has been unfortunate in his effort to purchase the land, but seems to have acted in good faith, and as there can be no objection on the part of the government to allowing him to purchase it, if it is still free from other claim, he will be allowed to give new notice within thirty days, and, if, upon proper notice, there is no adverse claim, he may be allowed to purchase. Your decision is modified accordingly.

17581-VOL 12-36

HOMESTEAD CONTEST-RESIDENCE-HEIRS-CULTIVATION.

REID v. HEIRS OF PLUMMER.

The failure of a homesteader to maintain residence may be excused, where by intimidation and armed violence he is driven from the land, and by such means prevented from returning thereto.

The heirs of a deceased homesteader are not required to maintain residence on the land embraced within the entry of the decedent; cultivation of the land, in such case, being sufficient to maintain the right of the heirs, and the failure of the heirs to cultivate the land is excusable, when due to armed violence and intimidation.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, June 1, 1891.

I have considered the case of James M. Reid v. the Heirs of J. M. Plummer, on appeal by the former from your decision of October 5, 1889, dismissing his contest against the entry of J. M. Plummer, made September 29, 1885, for the NW. of Sec. 9, T. 5 S., R. 31 W., Oberlin, Kansas.

The contest is based on the allegation that Plummer (deceased)

in his lifetime never established a residence upon said land up to the date of his death, to wit: May 12, 1886, and that his heirs and legal representatives have never resided upon, cultivated, or improved said land from May 12, 1886, up to this date, in any manner whatever.

The hearing, which was had before the register and receiver, substantially developed the truth of the contest affidavit, and the defense is in the nature of confession and avoidance.

It appears that prior to Plummer's entry, and on February 3, 1885, one D. W. Walling had filed on the land. It seems that he never made a bona fide settlement thereon, and, when, on February 22, 1886, Plummer with several workmen began the erection of a house on the land, Walling appeared with twenty-two of his companions, many of whom were armed with guns and revolvers, and drove Plummer away and compelled some of his workmen to assist in tearing down the house.

About a month after this, Plummer again went on the land and built a house, and, after it was completed and ready for occupancy, some per sons went to it in the night and tore it down and burned the lumber.

On May 12, 1886, while engaged in planting corn near the tract in controversy, Plummer and his nephew, James Cozad, were murdered. Prior to his death, Plummer had given a horse to Isaac Cozad, father of the murdered boy, to do some breaking for him, but, after the son was killed, the father feared to remain in that country and left.

Mary Plummer, aged seventeen, is the only heir of the entryman. After the murder of her father, her agent made repeated attempts to have the land cultivated, but those whom he sought to do the work were afraid of the same fate that befell Plummer. About May 27, 1887,

however, he induced one Wilson to break five acres of the land and plant same to corn, for which he paid $12.50, but this was after the contest was filed.

So it is seen that neither the entryman nor his heir ever established or maintained a residence on the land.

Plummer's acts conclusively show that, he intended to reside on the land. His failure to carry out his intentions was by no means his own fault; he was threatened, intimidated and driven from his land, and his house twice torn down. The fact that he was soon thereafter murdered, while engaged in peaceful pursuits, presumably by some of the mob who drove him from the land and destroyed his house, conclusively establishes the reasonableness of his fear that he was in danger from the threats of his enemies, and, under such circumstances, his failure either to establish or maintain a residence on the land is excusable.

The heir did not reside on the land after her father's death, nor was she required to do so, cultivation only being thereafter required. Swanson v. Wisely's heirs, 9 L. D., 31; Lamb v. Ullery, 10 L. D., 528. Under the excited condition of the country, resulting from threats, mobs, and murders, it was found impossible, after repeated efforts, to get any one to cultivate the land after the death of the entryman, until after the contest was brought. It would be manifestly unjust to hold the entry for cancellation for want of such cultivation. The same will therefore be permitted to remain intact, subject to future compliance with law.

In justice to the contestant, I think it fair to say that the record fails to connect him in any manner whatever in the acts of the mob which drove Plummer from the land and destroyed his house. The judgment appealed from is affirmed.

PRE-EMPTION FILING-INDIAN RESERVATION.

JOHN W. WEBER.

A pre-emption filing can not be allowed to embrace land included within an Indian reservation.

Acting Secretary Chandler to the Commissioner of the General Land Office,

June 1,
1891.

I have considered the appeal of John W. Weber from the decision of your office dated January 20, 1890, rejecting his application to file a pre-emption declaratory statement for Lot 16 of section 28, and the E. of the NE of Section 33, T. 14 N., R. 1 E., Humboldt Meridian, Humboldt, California, for the reason that a portion of the SE. of the NE. of said section 33 is within the limits of the Klamath Indian reservation.