Your decision holding the entry for cancellation, upon the facts as found by you, was therefore erroneous, and outside the proper limitations of the case. It is not meant by this that an actual fraud upon the government, or the absolute want of good faith, if fairly shown upon the course of the trial, will not justify cancellation outright, whatever be the notice which brings the party or the entry within your jurisdiction. But I do not regard this case as presenting such justification for summary action.

The remaining question, being simply whether or not Moore has shown such inhabitancy of the land as will permit his purchase under Section 2301, will now be considered.

At date of entry he had already built a small temporary cabin on the land, and he afterwards built a larger sod house with roof of matched lumber, in which he placed and kept a bed, kitchen utensils, etc., and which he occupied with his wife from Friday or Saturday of nearly every week till the following Monday-spending the business days in Huron, where he kept a warehouse of sewing machines, organs, etc., and his wife carried on business as a milliner.

He swears that they regarded the land as their home; that they could not support themselves upon their homestead during the winter, or until crops could be grown thereon, and were obliged to earn support elsewhere; that he had no other home, their residence in town being in one of the rooms of the rented building occupied for their business, and that his object in entering the land was solely to secure a home for himself and family. He had broken six acres, and at date of hearing in June 1883 had planted the same in crops and vines.

Section 2259 of the Revised Statutes provides that every person, qualified as prescribed, who "makes a settlement in person on the pub. lic lands subject to pre-emption, and who inhabits and improves the same, and who has erected or shall erect a dwelling thereon, is authorized to enter," etc. Section 2263 prescribes that, "Prior to any entries being made under and by virtue of the provisions of Section 2259, proof of the settlement and improvement thereby required shall be made to the satisfaction of the register and receiver," etc., "agreeably to such rules as may be prescribed by the Secretary of the Interior." Section 2301 allows payment for a homestead "on making proof of settlement and cultivation as provided by law granting pre-emption rights."

In this case Moore has settled, erected a house and improved the land. The only defect charged is failure to inhabit, and it is shown that while there has been some inhabitancy, the amount is slight. The reg. ister and receiver held it sufficient. You hold it to be of such charac ter as to establish the fact of bad faith and absolute fraud. I do not so regard it; and as it is alleged that claimant has made further inhabitancy and largely improved the land, having broken for cultivation nearly fifty acres, since the hearing, you will allow him to furnish proof

of such facts at a future day to be fixed by the register and receiver, when, if his good faith be shown, he will be entitled to make payment according to his application.

Your decision holding his entry for cancellation is reversed.

HOT SPRINGS RESERVATION.

JACOB KEMPNER.

The act of March 3, 1877, created a commission, authorized, among other things, to hear proof offered by claimants and occupants, and a claim not so presented is thereafter debarred.

Acting Secretary Muldrow to Commissioner Sparks, March 30, 1885.

I have considered the case presented by the appeal of Jacob Kempner from your decision of July 18, 1884, disallowing his application to purchase Lot 13, Block 127, Hot Springs, Arkansas.

May 6, 1884, Kempner applied at the local land office to purchase said lot at the appraised value (one hundred dollars). The application was rejected, for the reason that the lot had not been offered at public sale (it being embraced in the list of lands to be offered for sale on that day under instructions of January 18, 1884). In the course of the public sale the lot in question was sold (May 8, 1884,) to one John W. Bentz. From this action of the local officers Kempner appeals, presenting affidavits to establish the fact that he has had possession of the tract for the past eighteen years, and has improvements thereon; and that under the Atherton-Fowler decision (96 U. S., 518) "the party making the necessary settlement and improvement acquired the right of preference in the purchase," and that he "availed himself of the first opportunity to pay the government valuation of the land in question by tendering the purchase money to the receiver of the local land office."

In making this claim Kempner ignores entirely the act of March 3, 1877, (19 Stat., 377,) creating the board of commissioners to lay out Hot Springs Reservation. This act (Sec. 5) empowered the commission, created thereby, "to hear any and all proof offered by claimants and occupants . . in respect to said lands and in respect to the improvements thereon; and to finally determine the right of each claimant or occupant to purchase the same, or any portion thereof at the appraised value, which shall be fixed by said commissioners: Provided, however, that such claimants and occupants shall file their claims, under the provisions of this act, before said commissioners, within six calendar months after the first sitting of the said board of commissioners, or their claims shall be forever barred."

By joint resolution of January 14, 1880, (21 Stat., 299,) the time within which claimants might purchase was extended for sixty days. from the passage of said resolution.

Under the provisions of the act first above cited Kempner set up claim, and purchased, several lots in Hot Springs Reservation-including Lot 1 in this same block; but neither under the act of 1877 nor the joint resolution of 1880 did he set up any claim to Lot 13, in question. Said Lot 13, therefore, being one of the lots "that no one had an adjudicated right to purchase," was, under Section 12 of the Act of 1877, sold to the highest bidder at public sale, May 8, 1884, as hereinbefore stated.

There is another act relative to the Hot Springs Reservation-that of June 16, 1880 (20 Stat. 288); but as that act relates solely to "any person, his heirs or legal representatives, in whose favor the commissioners have adjudicated," it can have no bearing upon this case.

The lot in controversy, being one for which no claim had been filed before the board of commissioners established by act of March 3, 1877, and having been, after proper public notice as required by law, sold to the highest bidder, was therefore properly disposed of; and I affirm your decision rejecting the claim of Jacob Kempner to purchase the

same.

HOMESTEAD-ENTRY BY ADMINISTRATOR.
CLEARY . SMITH.*

While the possession of an administrator is, constructively, the possession of the heirs, such possession can only be maintained by cultivation of the claim until the expiration of five years.

Where the deceased entryman left a widow it is not competent for the administrator to purchase under section 2 of the act of June 15, 1880.

Secretary Teller to Commissioner McFarland, June 11, 1884.

I have considered the case of Frank Cleary v. Heirs of Cuthbert P. Smith, involving homestead entry No. 2946 of the N. of NW. 4, of Sec. 32, T. 2 N., R. 11 E., M. D. M., Stockton district, California, on appeal from your decision of July 19, 1883, holding the entry for cancellation.

It appears that Smith made the said entry July 15, 1878; that Cleary initiated contest against the same February 1, 1883, by filing affidavit alleging Smith's abandonment of the tract; and that thereupon citation duly issued by publication, citing the said heirs to the hearing to be had March 23d ensuing. Hearing was accordingly had, whereat contestant and "F. W. McClenahan, administrator of estate of late C. P. Smith," appeared.

The testimony thus adduced discovers that Smith some time resided in Dayton, Ohio, where he left his wife and two children in the year 1849, and joining the "Argonauts of 49," went to California. Having made his entry as stated, he erected a cabin upon the land, where he resided until on or about September 1, 1881, when he was taken sick to the San An

7747 LAND-30

* Omitted from 2. L. D.

dreas Hospital, Calaveras County, California, where he died intestate October 12, 1881. It is not clearly shown what use he made of the land, although one witness stated that two or three acres thereof had been plowed. He was a native-born citizen of the United States, and his estate consisted of a "land possessory claim" appraised at $100. Said administrator was duly appointed December 7, 1881, pursuant to an order of the superior court of said county, dated November 26, 1881, and had had the custody, control and possession of the land in question from date of his appointment to that of the hearing; having let the same to his brother, J. P. McClenahan for grazing, at twelve cents per acre for twelve months, but no improvements have been made upon the land since decedent's demise.

The register and receiver decided April 25, 1883, that the entry should be canceled, and the administrator having appealed in behalf of the heirs, you sustained the register and receiver's decision, and accordingly held the entry for cancellation. He has appealed from your decision, and filed an application to purchase the tract under the 2d section of the act of June 15, 1880, (21 Stat., 237).

Thus it appears that while decedent may have resided upon and cultivated a portion of his claim during his life-time, neither his widow nor his heirs nor any one else has resided upon, improved or cultivated the tract since his decease.

The homestead law requires actual residence upon and cultivation of the land by the claimant, and although it has been repeatedly held by this Department, notably in the case of Dorame v. Towers, (2, C. L. O. 131,) that the possession of an administrator or executor of a deceased claimant's estate is constructively the heirs' or devisees' possession, such possession can only be sustained by continual cultivation of the claim until the expiration of five years at least. But the record fails to discover any such compliance in the premises. The administrator's letting them to his brother for grazing purposes does not satisfy the demands of the law nor bring the case within the rule laid down by the Department in the case cited.

Neither is it competent for the administrator to purchase under the second section of the act of June 15, 1880, inasmuch as the same provides "that persons who have heretofore under any of the homestead laws entered lands properly subject to such entry " etc. may purchase, and section 2291 of the Revised Statutes expressly prescribes that not until the expiration of either five or seven years from the date of the entry shall the final certificate issue "to the person making such entry; or if he be dead, his widow; or in case of her death, his heirs or devisee."

The record shows that decedent left a widow and two children surviving him. Hence it would only be competent for the widow to apply to purchase the tract under the said second section, and should she so apply, you will entertain the same.

Your decision is accordingly affirmed.

SWAMP LAND.

ARANT v. STATE OF Oregon (ON REVIEW 2. L. D.

341).

It being shown that certain depositions as to the character of the land had been duly taken by the State, which were not with the case when under consideration, the former decision is vacated for the purpose of permitting the submission of such testimony.

Acting Secretary Joslyn to Commissioner McFarland, January 14, 1885.

On July 11, 1883, Secretary Teller affirmed your decision of April 14, 1882, in the case of W. F. Arant v. The State of Oregon, involving Lots 1, 2, 3 and 4 of Sec. 2, T. 40, R. 8 E., Lakeview, Oregon, and also on the same day affirmed your decision of April 22, 1882, in the case of Henry Conn v. The State of Oregon, involving the NE. † of SW. †, and Lots 5, 6 and 7 of Sec. 24 and Lot 3 of Sec. 23, T. 39, R. 8 E., in the same land district. The principal question in both cases was whether or not the tracts were swamp and overflowed lands, and as such inured to the State under the acts of Congress of September 28, 1850, (9 Stat., 519,) and March 12, 1860 (12 Stat., 3); and upon the testimony submitted he held that they were not of that character. His decisions were accordingly adverse to the State. Motions for their reconsideration were subsequently filed by the State upon the ground that certain depositions touching the character of the land were duly taken by the State, to be used in the cases, and were filed with the local officers, but were not forwarded by them to your office; and that, consequently, the cases were adjudicated without reference to the facts therein stated, either by your office or by this Department. It being alleged that these deposi tions sustained the claim of the State to the tracts, Secretary Teller, December 12, 1883, instructed you to request information from the local officers as to such depositions, to which they replied that their files and records failed to show that they were taken. Notwithstanding this, J. O. Allen, a justice of the peace within said State, states under oath that he was duly commissioned by these officers in the spring of 1879 to take testimony in these cases, and that in July of that year, by virtue of such commission, he took the depositions of John A. Fairchild, P. A. Dorris, George Nurse, John Brunette, William Hicks and Robert Whittle, relative to the character of the land involved in the two cases, after which he placed the same in an envelope, which he sealed and mailed prepaid, to said officers. Allen's affidavit is corroborated by that of Q. A. Brooks, the then agent of the State in land matters. I can not doubt, under these sworn statements, that such depositions were taken. Whether they were lost in transit to the local office, or whether there mislaid, does not appear and is not material. It is sufficient that they were (or presumed to be) pertinent and material to the issue between the parties, and that the State had a right to their consideration.

In view of these matters, Secretary Teller's said decisions are recon