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failed to continue the settlement to the end of the five years, or to prove up under the 8th section of the act of 20th May, 1862, within the six months' limitation, we have allowed the heirs to take the tract at private entry. >}< :k >k >k >k >k :k >k >k Cases of abandonment have been presented wherein it has been shown that, by réason of sickness, want of means or other good causes, the parties although they had cultivated had failed to meet the requirements of the law as to residence within the prescribed time. Where the intention was bona fide we have refused to cancel entries, but have allowed the five years' residence to take date from the day of actual settlement by residence on the tract, provided that the party file his affidavit within a reasonable period that he has permanently renewed settlement on the claim. Where the widow of a deceased settler marries again, before the expiration of five years, it is held that if she continues the settlement and improvement of the claim to the expiration of the period fixed by the statute, the fee inures to the heirs, and final proof may be made in the name of the said heirs. The amendatory act of 21st March, 1864, authorizes parties in the military or naval service, whose families, or some member thereof, are residing upon lands desired to be entered, to make the affidavit required by the homestead law of May 20, 1862, before the officer commanding in the branch of the service in which the applicant may be engaged ; the affidavit, accompanied by the application, to be filed with the Register and Receiver of the Land Office, by the wife or other representative of the party and become effective from the date of such filing. Persons in both the army and navy have made application through agents, under the impression that no settlement is required until the expiration of their term of service, and that should their service absorb five years, such service will be accepted in lieu of settlement and cultivation. The law recognizes no such arrangement, and means have been taken properly to explain the scope and meaning of the statute, in order to counteract the evil, which has been so extensive as to induce this officer to dispatch to the several district officers a circular letter, directing them to receive no applications except such as may be accompanied by evidence of pre-existing settlement, as the law requires, on the part of the wife or representatives of the parties. Since our last annual report the two years' restrictive clause in the act of 21st June, 1866, applicable to Southern States, as to the quantity of an entry, has expired, and the question has arisen whether the fee required under the act was increased with the quantity allowed to be taken. It has been determined that the fee is the same as under the original act of 20th May, 1862, which was amended by the second section of the act of 1866; namely, five dollars for eighty acres or less, and ten dollars for a greater quantity, payable at date of entry. The officers at Huntsville, Alabama, had erroneously made sale for cash of tracts formerly in the Cherokee Indian reservation. The Commissioner has apprised them that by treaty stipulations, the lands had been quit-claimed to the United States and restored to the public domain, hence subject to disposal only in conformity with the provisions of the act of 21st of June, 1866, and that to sell for cash any tract would be in violation of law, and consequently the Register and Receiver are without authority for the sale of the premises. (Report of 1868, page 98).
A case was before the Commissioner, upon an application to cancel homestead entry, in which the testimony showed it to have been made while the claimant was serving in the army of the United States; that he was mustered out of the service in May, 1866; soon thereafter built a Small shanty and commenced work upon the homestead, continuing to occupy the same, with frequent absences, though not at distant intervals. It was held that the claimant had not abandoned his tract; yet the character of his improvement and manner of residence were not such as the law contemplates. The cancellation of this entry was declined on the evidence adduced, while a more complete compliance was called for under the law. It was insisted that the settler must put upon the land such a house as may answer for permanent residence—not merely a place of temporary resort in order to show his intention to comply with the law—and make the land what the statute intends—his actual homestead. A period of sixty days from the date of notice was allowed within which to complete his house and move therein, it being required at the expiration of that time that he should appear before the Register and Receiver and show by affidavit, supported by corroborative testimony, compliance with such requirements. An entry has been presented in which the homestead was made and commuted before the expiration of five years from its date, and the point submitted was whether the settler could make another like entry. The sixth section of the homestead act of 1862 is specific in its declaration “that no individual shall be permitted to acquire title to more than one quarter section under the provisions of this act.” Therefore it is held that when a party acquires title under any of the provisions of this act, his privilege is thereby exhausted. - - - . Inquiry has been made whether persons employed in the military or naval service of the Government may take homesteads under the amendatory act of 21st March, 1864, and obtain title to the land, supposing their time of service to absorb all of the five-year period for settlement and cultivation. The ruling is that actual settlement and cultivation of the land are required by law; hence title cannot be acquired unless the party, immediately upon discharge from service, enters upon the land, makes it his home, and cultivates the same, as required by the original act of 20th May, 1862; actual settlement upon and cultivation being required in all cases. In the second section of the law of 20th May, 1862, it is stipulated in regard to settlers that in the case of the death of both father and mother, leaving an infant child, or children under twenty-one years of age, the right and fee shall enure to the benefit of the infant child or children ; and that the executor, administrator, or guardian may sell the premises for the benefit of the infant heirs at any time within two years after death of the surviving parent, and in accordance with the law of the domicil. The question has been made as to whether it is imperative the land shall thus be sold under the statute for the benefit of the heirs, or whether they can retain title under the original settlement. The Commissioner rules that there is no objection under the general provisions of the law to the maintenance of settlement and cultivation on the part of the heirs, and the issue of the patent in their names at the expiration of the required time ; yet in such case the minor heirs must continue to reside upon the homestead, and the settlement and cultivation of the same must be continued for their benefit.
In the case of a homestead settler who died unmarried, and whose father applied for preference right to take by ordinary purchase at $1.25 per acre, it is held that although privilege could not be granted, yet on satisfactory showing of the death of the settler, with proof of his previous settlement and cultivation, the land could be paid for at $1.25 per acre by the heirs of the deceased settler, under the eighth section of the act of 20th May, 1862, and entry made under that section in favor of the heirs of the decedent, following in this respect the rule prescribed by the second section of the act of 3d March, 1843, in regard to deceased pre-emptors. (Report of 1867, p. 82.)
HOMESTEAD COMMUTATIONS WITHIN RAILROAD LIMITS.
In the Secretary's decision of 22d June, 1866, as communicated in our circular of 25th August, 1866, the question discussed was the rights of pre-emption settlers to commute their filings on odd sections after the railroad withdrawal had been made. The Secretary then decided “the homestead settler's right attaches only from the date of entry,” the pre-emptor from the date of his actual personal settlement; hence, if the commutation is not made prior to withdrawal, it cannot be made afterwards, the railroad grant taking effect immediately upon the abandonment of the pre-emption for the homestead. •
By parity of reasoning this principle will apply to the even sections within the granted limits, in the matter of price ; hence, if a party fail to commute prior to the increase from minimum to double minimum, he cannot commute afterwards at the rate of $1.25 per acre, because upon the relinquishment of the pre-emption claim, the double minimum immediately attaches, and he will be required either to prove up as an original preemptor at $1.25 per acre, or in commuting to restrict the homestead claim to eight acres.
Inquiries have been presented as to what is required of heirs at law desirous of making payment under the eighth section of the act.
The requirements are the production of evidence of heirship, with proof that the deceased settler had fully met the requirements of the statute by residing upon and cultivating the tract up to the date of decease ; and further that the improvements had been continued and residence maintained by the heirs upon the homestead after the death of the settler; or, in case residence and cultivation had not been continued, proof that at the date of the application sufficient time had not elapsed since the decease to work a forfeiture of the claim. Instances have occurred in which a widow has made a homestead settlement and thereafter marries a person who, likewise had made a similar settlement on another tract. It is ruled that the parties may elect which tract they will retain for permanent residence, and that on proving up settlement under the eighth section of May 23, 1862, the title to the remaining entry may be perfected by the original Settler. (Report of 1867, p. 83.)
The question has been raised in behalf of settlers whether a person who has availed himself of the benefits of the homestead, and pays for his claim under the eighth section of the act, can thereafter enter other land under pre-emption, provided he has never had the benefit of the latter statute.
On this point it has been ruled that where a party legally entitled makes an entry under the homestead law of May 20, 1862, and thereafter, at any time before the expiration of five years, shall come forward, make satis
factory proof of his actual settlement and cultivation to a given day, and then pay for the tract, the proceedings merely consummate his homestead right as the act allows; the payment being a legal substitution for the continuous labor the law would otherwise exact at his hands. A claim of this character is not a pre-emption, but a homestead, and, as such, will be no bar to the same party acquiring a pre-emption right, provided he can legally show his right in virtue of actual settlement and cultivation on another tract at a period subsequent to the consummation of his homestead. Cases have arisen where persons have made homestead settlements on unsurveyed tracts, and who, after the lines are established, find the premises falling in two different land districts. The law restricts such settlements to surveyed lands, and hence, prior to survey, no rights attach under the statute. Then, as the law authorizes only one entry to be made by the same person, it is necessary for the party seeking the benefit of the statute to make the selection of his whole farm within one and the same land district. To entitle an applicant to enter an adjoining tract for the use of a farm, he must both own and occupy the original farm tract. In regard to certain classes of contests which have arisen for entries under the homestead [act], it has been ruled, that where two persons apply at the same time for a tract on which neither has settlement and improvements, it must be awarded to the highest bidder—that is, to the party who will pay the highest price for the privilege of entering. If two parties apply at the same time for a tract on which one of them has actual settlement and improvements, and the other has not, it must be awarded to the former, because it is not the policy of the system to allow one man to appropriate to himself the improvements resulting from the labor of another. If a tract is simultaneously applied for by two persons, each having settlement and improvements on the same, an investigation is ordered, and if it is found that one has precedence by reason of prior actual settlement and substantial improvements, so as to be notice on the ground to any competitor, the award of entry will be made accordingly ; but if neither has such substantial interests, the tract must be conceded to the highest bidder. In reference to settlements on odd-numbered sections within the limits of withdrawals under railroad grants, the department in June last ruled that the homestead settler's right attaches only from the date of entry, the pre-emptor's from the date of his actual personal settlement. The title in either case is to be consummated by a full compliance with the terms and conditions imposed by law. The grant in aid of the railroad does not embrace lands to which a valid right arising either under the homestead or pre-emption had previously attached ; but if such right be abandoned or forfeited, the grant would immediately thereafter take effect ; that a pre-emptor cannot change his claim to a homestead entry so as to defeat the right which may have inured to the railroad company before the individual entry was made. If a pre-emption settlement had been commenced upon surveyed lands, it might be entered as a homestead before the right of the company attached, but not at a subsequent date. This ruling has been duly communicated for the government of the district land officers. (Report of 1866, p. 19.)
The location of Louisiana internal improvement scrip on more than 320 acres of other land, disqualifies the locator thereof, as a pre-emptor. ATTORNEY-GENERAL’s OFFICE, November 15, 1860. Sir :—The papers which you have sent me relative to the contest between Albert Rust and James M. Faust, have been examined. Faust has a pre-emption right to the land in dispute, unless his title be defeated by the showing of his adversary, that he was the owner or proprietor of three hundred and twenty acres of other land at the time he made his entry. In point of fact, he had located Louisiana internal improvement scrip on more than that quantity, and the sole question submitted is, whether that made him an owner or proprietor of such land within the meaning of the law. I am of opinion that it did, for although it did not make his legal title complete, it gave him an equitable estate, which carried, to all intents and purposes, the exclusive use and dominion over it. The conveyance which Faust made to his son is dated subsequently to the entry, and therefore is a fact of no importance in the case. The affidavit of a party claiming a pre-emption right, denying the ownership of other land, is only one means of ascertaining the fact. It is not conclusive ; you are not required by the law to close your eyes upon other evidence which clearly shows the contrary.
Where a settler made a mistake in his declaratory statement, as to the particular tract intended to be claimed, but failed for three years to make the necessary proof and payment, and during his lifetime the land was granted away by Congress, it was held that a pre-emption entry of his heirs was not confirmable by the Commissioner of the Land Office. Opns. vol. 9, p. 515.