Suits to vacate patents. Second homestead entries. Act of March 3, 1891 (26 Stat., 1093). AN ACT To amend section eight of an act approved March third, eighteen hundred and ninety-one, entitled "An act to repeal timber culture laws and for other purposes." That section eight of an act entitled "An act to repeal timber-culture laws, and for other purposes" approved March third, eighteen hundred and ninety-one, be, and the same is hereby amended so as to read as follows: "SEC. 8. That suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents. And in the States of Colorado, Montana, Idaho, North Dakota, and South Dakota, Wyoming and the District of Alaska, and the gold and silver regions of Nevada and the Territory of Utah, in any criminal prosecution or civil action by the United States for a trespass on such public timber lands or to recover timber or lumber cut thereon, it shall be a defense if the defendant shall show that the said timber was so cut or removed from the timber lands for use in such State or Territory by a resident thereof for agricultural, mining, manufacturing, or domestic purposes under rules and regulations made and prescribed by the Secretary of the Interior, and has not been transported out of the same; but nothing herein contained shall operate to enlarge the rights of any railway company to cut timber on the public domains: Provided, That the Secretary of the Interior may make suitable rules and regulations to carry out the provisions of this act and he may designate the sections or tracts of land where timber may be cut, and it shall not be lawful to cut or remove any timber except as may be prescribed by such rules and regulations; but this act shall not operate to repeal the act of June third, eighteen hundred and seventy-eight, providing for cutting of timber on mineral lands. Act of February 3, 1911 (36 Stat., 896). AN ACT Providing for second homestead and desert-land entries. That any person, who, prior to the approval of this act, has made entry under the homestead or desert-land laws, but who, subsequently to such entry, from any cause shall have lost, forfeited or abandoned the same, shall be entitled to the benefits of the homestead or desertland laws as though such former entry had not been made, and any person applying for a second homestead or desert-land entry under this act shall furnish a description and the date of his former entry: Provided, That the provisions of this act shall not apply to any person whose former entry was canceled for fraud, or who relinquished his former entry for a valuable consideration in excess of the filing fees paid by him on his original entry. See also act of June 5, 1900, sec. 2 (31 Stat., 267); act of May 22, 1902, sec. 2 (32 Stat., 203); and act of Feb. 8, 1908 (35 Stat., 6). LIMITATION TO 320 ACRES UNDER ALL LAND LAWS, EXCEPTING MIN- 1 Such suits must be based on a showing of fraud as distinguished from noncompliance with law, and the evidence of fraud must be clear, unequivocal, and convincing, and not a bare preponderance of evidence which leaves the issue in doubt (U. S. v. Barber, 194 Fed., 24). ENLARGED HOMESTEADS IN CERTAIN STATES. Act February 19, 1909 (35 Stat., 639). Act June 17, 1910 (36 Stat., 531). CONTESTS AND CANCELLATION OF CLAIM. PREFERENCE RIGHT. Act May 14, 1880, section 2 (21 Stat., 140), as amended by act July 26, 1892 (27 Stat. 270). Act March 3, 1911, section 2 (36 Stat., 1084). COMMUTATION PROVISIONS. Act June 3, 1896, section 2 (29 Stat., 197). Act May 29, 1908, sections 9 and 10 (35 Stat., 465). HOMESTEAD BY MARRIED WOMAN. Act June 6, 1900 (31 Stat., 683). SETTLERS WHO BECOME INSANE. Act June 8, 1880 (21 Stat., 166). LEAVES OF ABSENCE. Act March 2, 1889 (25 Stat., 864), and various acts of local application. FINAL PROOF NOTICES. Act March 3, 1879 (20 Stat., 472). Act March 2, 1889, section 7 (25 Stat., 854). DISTINCTION BETWEEN OFFERED AND UNOFFERED LANDS ABOLISHED. Act May 18, 1898 (30 Stat., 418). RELINQUISHMENTS. Act May 14, 1880 (21 Stat., 140). GENERAL PROVISIONS OF THE HOMESTEAD LAWS EXTENDED TO CERTAIN LANDS IN THE YELLOWSTONE (NOW SHOSHONE) NATIONAL FOREST, ETC. Act March 15, 1906 (34 Stat., 62). HOMESTEADS IN FORMER SILETZ INDIAN RESERVATION. Act August 15, 1894 (28 Stat., 286, p.326). Act March 4, 1911 (36 Stat., 1356). HOMESTEAD LAWS EXTENDED TO ALASKA, WITH MODIFICATIONS, ETC. Act May 14, 1898, section 1 (30 Stat., 409), as amended by act March 3, 1903 (32 Stat., 1028). LANDS IN THE BLACK HILLS FOREST RESERVATION, SETTLED UPON AND IMPROVED BEFORE SEPTEMBER 19, 1898, MAY BE ENTERED UNDER THE HOMESTEAD LAWS, ETC. Sundry civil appropriation act of March 3, 1899 (20 Stat., 1074, p. 1095). DECISIONS UNDER THE HOMESTEAD LAWS. Lands subject to settlement and entry.-Land not susceptible of cultivation or other agricultural use can not be entered under the homestead law; and an affidavit charging such facts is sufficient basis for a hearing. (Davis v. Gibson, 38 L. Ď., 265.) Land which is so mountainous, rough, broken, heavily timbered, and of such poor quality that it is impossible of cultivation is not subject to homestead entry. (Winninghoff v. Ryan, 40 L. D., 342.) The fact that land is covered with valuable timber does not exclude it from entry under the homestead law, where of such character that it would be suitable for agricultural use if the timber were removed; but land of a character not adaptable to any agricultural use is not subject to homestead entry. (Finley v. Ness, 38 L. D., 394; see also Davis v. Gibson, 38 L. D., 265. Lands having little or no agricultural value and chiefly valuable as containing the entrance to an extensive and beautiful cavern is not enterable under the homestead laws by one whose acts show that he desires the land for the control of the cavern and not for a bona fide agricultural home. (South Dakota Min. Co. v. McDonald, 30 L. D., 357.) Qualifications of entrymen.-Section 2289 of the Revised Statutes specifically declares that one who is the proprietor of more than 160 acres of land is disqualified to make homestead entry, and the Land Department is therefore without power of invoking the maxim de minimis non curat lex to hold so qualified one who owns more than 160 acres, notwithstanding the excess may be less than 1 acre. (In this case homestead entryman owned 160 acres and a town lot 50 by 142 feet.) (Sorli v. Berg, 40 L. D., 259.) One who enters into an oral agreement to purchase land and makes part payment of the purchase price is not the proprietor of land within the meaning of the provisions of the homestead law declaring disqualified to make homestead entry one who is the proprietor of more than 160 acres where under the laws of that State such oral agreement and part payment do not constitute such part performance as will take the contract out of the statute of frauds. (Earhart v. Rein, 38 L. D., 613.) Heirs. On the death of a homesteader leaving widow and heirs the widow takes the homestead right of her husband free from any claim on behalf of the heirs, and is vested with full power to complete the entry for her own benefit, or relinquish the same, if she so elects. (Steberg v. Hanelt, 26 L. D., 436.) On the death of the entryman, the right goes to the widow, or in case of her death, to the heirs or devisee, who may complete the entry by either residing on the land or cultivating the same for the required period, but need not do both. (Heirs of Stevenson v. Cunningham, 32 L. D., 650; see also Meeboer v. Heirs of Schut, 35 L. D., 335.) The heirs of a deceased homestead entryman, who during his lifetime failed to comply with the law, may complete the entry by either residing upon or cultivating the land for the full period of five years, if sufficient of the lifetime of the entry remains for that purpose; or may commute upon a showing of residence and cultivation for a period of 14 months but can not commute upon a showing of cultivation alone. (Wilson v. Heirs of Smith, 37 L. D., 519.) Upon the death of an entryman those upon whom the statute casts the right to perfect title under the entry are merely required to continue cultivation and improvement of the land, so that failure to cultivate in any given year subjects the entry to contest and possible cancellation. (Hon v. Martinas, 41 L. D., 119.) This case overrules Heirs of Stevenson v. Cunningham, Meeboer v. Heirs of Schut, and Wilson v. Heirs of Smith, supra, so far as in conflict. Squatters on unsurveyed lands.-Settlements may be made under the homestead laws by all persons qualified to make either an original or a second homestead entry, * * and in order to make settlement a settler must personally go upon and improve or establish residence on the land he desires. By making settlement in this way, the settler gains the right to enter the land settled upon as against all other persons, but not as against the Government, should the land be withdrawn by it for other purposes. (Par. 4, Suggestions to Homesteaders and Persons Desiring to Make Homestead Entries, approved Apr. 20, 1911.) The qualifications requisite on the part of a homesteader must exist at the date of entry and if, after settlement and prior to entry, the settler for any reason becomes disqualified, the privilege gained by settlement is lost. (Brown v. Cagle, 30 L. D., 8.) The widow of a homestead settler who had not prior to his death established bona fide residence on the land must thereafter both reside on and cultivate the land in her own right at least in the presence of a forest withdrawal. (Susan A. Leonard, 40 L. D., 429.) Residence.-The object of the homestead laws is the donation of public lands to persons seeking to establish and maintain agricultural homes thereon, conditioned upon actual occupancy of the same as a home, and cultivation and improvement of the land; and mere occasional visits to the claim do not meet the requirements of the law. (Oscar O. Reeg, 40 L. D., 206.) The homestead law contemplates a continuous compliance both as to residence and cultivation, beginning with the date of entry. (Hon Martinas, 41 L. D., 119.) v. The law contemplates that the entryman shall make the land his permanent home to the exclusion of a home elsewhere; and an entry merely for the purposes of a summer home during three or four months of the year while maintaining a home elsewhere the rest of the time is invalid. (George W. Harpst, 36 L. D., 166.) A homestead entry made with no intention of establishing a permanent, bona fide home upon the land, but merely with a view to submitting a showing sufficient to support commutation, must be canceled, notwithstanding the proof shows full technical compliance with respect to inhabitancy of the land for the period ordinarily required in commutation cases. (Gilbert Satrang, 37 L. D., 683, syllabus.) Credit for constructive residence during official employment will not be allowed to homestead entrymen appointed to office on or after March 1, 1909. Such credit will be given only to entrymen who establish residence on their claims and are thereafter elected to office. (37 L. D., 449.) Commutation-Residence.-The purpose of the homestead law is the donation of the public lands to actual settlers seeking to establish bona fide homes thereon, and the provision respecting commutation in no wise changes that purpose, but merely affords a means of commuting further residence to cash in meritorious cases, lawfully initiated and prosecuted to the date of commutation. (Gilbert Satrang, 37 L. D., 683, syllabus.) Credit for constructive residence during official employment will not be allowed in the commutation of homestead entries. Commutation may be allowed only upon a showing of actual and substantially continuous presence upon the land for the required period. (Ed. Jenkins, 37 L. D., 434.) The fact that lands may be chiefly valuable for the timber thereon does not exclude them from settlement and entry under the homestead law, but it must clearly appear that the settlement or entry was made in good faith, for the purpose of making the tract a home, and where the entryman in such case submits commutation proof and pays a price to cut short the period of residence required by the homestead law, he invites scrutiny and challenges judgment as to the good faith of his entry. (Patten v. Quackenbush, 35 L. D., 561.) Cultivation. Cultivation is an essential requisite to compliance with the homestead law, and a hearing may be had on a charge of noncultivation, even when unaccompanied by a sufficient charge of nonresidence. (Norton v. Ackley, 29 L. D., 561.) Under the three-year homestead law a mere breaking of the soil will not meet the terms of the statute, but such breaking or stirring of the soil must also be accompanied by planting or the sowing of seed and tillage for a crop other than native grasses. Circular of July 15, 1912 (41 L. D., 103, 105.) The homestead law "requires not only bona fide residence upon the land, but actual cultivation. Claimant's cultivation is grossly inadequate to meet the requirements of the law, and in its inadequacy casts further doubt upon the bona fides of the residence. The cutting of wild hay from a homestead entry can not be considered seriously as cultivation of the land. This is particularly true when the part of the land from which the hay was not cut has not been used for grazing purposes; and also when the total cultivation during the life of the entry amounts to not more than half an acre planted to crops and an additional acre Secretary of Ag ized to list agricultural lands. plowed. A pretense of cultivation can not satisfy the requirements of the law any more than a pretense of residence." (Ingelev J. Glomset, 36 L. D., 255.) The use of land for the raising of hogs is an agricultural use, and where the land is better adapted to that use than tillage of the soil, meets the requirements of the homestead law with respect to cultivation. (George Hathaway, 38 L. D., 33, syllabus.) Cultivation must be continuous from date of entry. (Hon v. Martinas, 41 L. D., 119.) Contest and protest.-The proviso to section 7 of the act of March 3, 1891, directing issuance of patent where two years have elapsed since issuance of final receipt in the absence of contest or protest, has no application to proceedings by the Land Department in disposing of final proof after the lapse of two years. (Mertie C. Fraganza, 40 L. D., 300.) In this case there is no individual adverse claimant, but the Government, by its Chief Executive, has claimed the land within the boundaries of said reservation for a specific public purpose (i. e. a forest reservation), excepting only the lands coming within the above category; and the Executive order, reserving the land for a specific public purpose must be held to be at least as effective upon the claims of settlers as would be the adverse claim of one who wished the land for his own use." Held, therefore, that a settler who failed to file his application for entry within three months after the plat of survey was filed in the local land office, was precluded from making entry in the presence of an intervening forestry withdrawal. (Joshua L. Smith, 31 L. D., 57; see also Hattie E. Bradley, 34 L. D., 191, 193, and Esther F. Filer, 36 L. D., 360, 363.) A decision by the Secretary of the Interior that a telegram and letter from a special agent of the General Land Office, alleging fraud in a number of commuted entries and suggesting delay in issuing patents pending further examination, constitutes a "protest" in the meaning of the act of March 3, 1891 (26 Stat., 1099), requiring issuance of patent within two years after final receipt when no contest or protest is pending," is not reviewable on an application for a writ of mandamus. Fisher v. United States ex rel., Grand Rapids Timber Co. (Ct. of Appeals D. C.), 40 L. D., 278. 66 Section 2 of the act of March 3, 1911 (36 Stat., 1084), validating certain homestead entries in national forests applies to all contests initiated under the act of May 14, 1880, prior to the forestry withdrawal, where cancellation of the entry results therefrom, regardless of whether the cancellation was procured prior or subsequent to the withdrawal. (Sante Fe Pacific R. R. Co., 39 L. D., 611.) Miscellaneous.-The excepting clause of the Olympic National Forest proclamation ceases to apply in behalf of a settler who fails to make entry or filing for the lands within the time allowed by law. (Arnold Wink, 31 L. D., 47.) On the relinquishment of a homestead entry within the San Francisco Mountains Forest Reserve, the lands become a part of the forest reserve and are not open to subsequent entry. (E. S. Gosney, 29 L. D., 44.) Three-year homestead law.-See Circular of July 15, 1912. (41 L. D., 103.) AGRICULTURAL LANDS IN NATIONAL FORESTS. Act of June 11, 1906 (34 Stat., 233), to provide for the entry of agricultural lands within forest reserves. The Secretary of Agriculture may, in his discretion, and he is hereby riculture author- authorized, upon application or otherwise, to examine and ascertain as to the location and extent of lands within permanent or temporary forest reserves, except the following counties in the State of California, Inyo, Tulare, Kern, San Luis Obispo, Santa Barbara, Ventura, Los Angeles, San Bernardino, Orange, Riverside, and San Diego; which are chiefly valuable for agriculture, and which, in his opinion, may be occupied for agricultural purposes without injury to the forest reserves, and which are not needed for public purposes, and may list and and describe the same by metes and bounds, or otherwise, and file the bounds descrip- lists and descriptions with the Secretary of the Interior, with the request that the said lands be opened to entry in accordance with the provisions of the homestead laws and this act. Metes tions. |