TOWNSITE-ENTRY-DATE OF FINAL CERTIFICATE.

ROSS v. HETRICK.

The irregular aliowance of a townsite entry prior to the submission of the final proof therefor does not make the entry for that reason void, but voidable only, and the defect being subsequently cured the entry must bear the date of the original action.

Secretary Smith to the Commissioner of the General Land Office, February (J. I. H.) 10, 1896. (E. E. W.)

On the 3d of October, 1893, H. C. Hetrick applied for deed to lot 19, of block 41, in Alva, Oklahoma, alleging settlement, improvement and possession; and on the 12th of January, 1894, A. J. Ross filed an affidavit of contest, denying the allegations contained in Hetrick's application, and alleging improvement and occupancy of the lot himself.

At the hearing Hetrick moved to dismiss the contest on the ground that the trustees were without jurisdiction. The trustees overruled this motion, and heard testimony as to Hetrick's occupancy, but refused to hear testimony as to Ross' occupancy, and on the 5th of February, 1894, dismissed the contest and awarded the lot to Hetrick. Ross appealed, and on the 15th of June, 1894, the Commissioner of the General Land Office reversed the decision of the trustees, holding that Hetrick was not an occupant of the lot at the date of the townsite entry, and, therefore, not entitled to deed; and directing the trustees to allow Ross to submit evidence of occupancy at the date of the townsite entry. Hetrick then appealed to the Department.

The testimony submitted by Hetrick shows that he took possession of the lot about 1:50 p.m., September 16, 1893, and camped on it nine or ten days. During this time he built a "sort" of fence across the front end of the lot, and dug a hole about three feet in diameter and eighteen inches deep, which he says was the beginning of a well. After filing his application for deed on the 3d of October, he returned to his home in Kansas, and had not further occupied or improved the lot at the date of the hearing.

In his affidavit of contest Ross does not specify the date of his improvement, but in an affidavit of continuance filed on the 3d of February, 1894, he swears that his witnesses, Goodwin and Zimmerman, if present, would swear that the date was the 12th of January, 1894. The Commissioner of the General Land Office also found from the records of his office that the trustees applied to enter the townsite of Alva on the 26th of October, 1893, and received final certificate as of that date. But final proof was not made until the 18th of December, 1893, and the Commissioner decides that

Inasmuch as the cash entry should not have been allowed till after final proof had been duly made, the date of said final certificate was error, and the correct date of entry of the townsite of Alva, O. T., is held to be December 18, 1893, the date of submission of final proof.

This part of the Commissioner's decision is erroneous. The entry may have been irregularly allowed by the register and receiver on the 26th of October, but the entry was not for that reason void, but at most only voidable, and as the defect was afterwards cured, the date of actual entry, October 26, 1893, is the correct date, notwithstanding the irregularity, and the Commissioner's decision on that point is modified to conform to this view.

The decision of the Commissioner that Hetrick was not an occupant of the lot at the date of the townsite entry, and therefore not entitled to deed, and that Ross should be allowed to submit testimony as to his occupancy at the date of the townsite entry, is affirmed.

TIMBER-CULTURE ENTRY- EQUITABLE ACTION.
WILLIAM H. RUSSELL.

A timber-culture entry of a fractional sub-division that embraces less than forty acres, under which the area planted to trees is less than two and one half acres, may be equitably confirmed, where it appears that the entryman followed the construction of the law announced in the general circular of the Department in force at the time of planting, and shows on final proof a greater number of growing trees than is required on the statutory acreage.

Secretary Smith to the Commissioner of the General Land Office, February (J. I. H.)

11, 1896.

(W. A. E.) William H. Russell made timber culture entry on May 5, 1882, at the Wichita (now Dodge City), Kansas, land office, for lot 3 of Sec. 14, T. 26 S., R. 1 W., containing 23.70 acres.

February 23, 1894, he offered final proof, which was rejected by the local officers for the reason that the proof showed the cultivation of but one and one-half acres.

On appeal, your office, by letter of August 10, 1894, affirmed the action of the register and receiver, whereupon Russell prosecuted a further appeal to the Department.

The final proof shows that the entryman has planted and cultivated each year since date of entry one and one half acres of the tract to trees; that he has taken all necessary precautions to insure the growth of the trees; that at the date of offering final proof there were on the land about 4,000 trees-an average of 2,500 to the acre; that these trees, which consist of cottonwood, box elder, and walnut, were in a healthy, growing condition and averaged about four inches in diameter and fifteen feet in height.

Frank M. Dofflemyer, one of the final proof witnesses, who lives onadjoining land and sees the tree tract nearly every day, says, in speaking of the claimant: "He has done the work well and has a fine grove fulfilling the requirements of the law to the letter."

James M. Nicholson, another witness, says: "Trees look well and make a handsome grove."

The only possible point of technical non-compliance with law that could be raised on this showing is in regard to the area planted to trees. The timber culture act of June 14, 1878 (20 Stat., 113), provides that trees must be planted and kept in a proper state of cultivation on "two and one-half acres on any legal subdivision of forty acres or less." It is shown, however, that the entryman supposed he was complying strictly with the law when he planted only one and one-half acres of the present tract to trees. On page 30 of the general circular of March 1, 1884, also page 144 of the general circular of February 6, 1892, section 12, it is said: "Ten acres are thus to be plowed, planted, and cultivated on a quarter section, and the same proportion when less than a quarter section is entered." Nowhere in the circular is it stated that two and one-half acres must be planted and cultivated where less than forty acres are entered. That provision of the statute was evidently overlooked in the preparation of the circular referred to. Ten acres are one sixteenth of a quarter section. This proportion holds good by the terms of the statute on an eighty acre tract and a forty acre tract. The present entry covers a little less than twenty-four acres. Onesixteenth of twenty-four is one and one-half. In planting and culti vating to trees one and one half acres, therefore, Russell was following strictly the instructions of the general circular and honestly believed that he was obeying the law.

Again, in the case of Male v. Heirs of Quackenbush, 9 L. D., 567, it was held that "a slight deficiency in the acreage planted will not justify cancellation where a greater number of trees are growing on the land than is required on the statutory ten acres at date of final proof." The timber culture law required the claimant to show 675 living and thrifty trees to the acre at the time of offering final proof. Had Russell planted two and one-half acres to trees as required by the statute, he would have had to show on final proof only two and one-half times 675, or less than 2,000 trees. As it is, he has shown nearly 4,000 healthy trees, twice as many as it was necessary for him to have. The fact that these trees are not scattered over quite as wide an area as they should be, ought not, in all good conscience, to be allowed to deprive him of the fruit of years of honest labor.

This seems to be pre eminently a case for reference to the board of equitable adjudication. There has been a substantial compliance in good faith with the law and there are no adverse claims.

Your office decision is accordingly reversed, and the entry will be submitted to the board.

SWAMP LAND-AGRICULTURAL CLAIMANT-CIRCULAR OF DECEMBER

13, 1886.

WILLIAMS v. STATE OF Iowa.

The circular of December 13, 1886, requiring the State, after due notice, to present its objections to the allowance of entries of lands theretofore selected, is not applicable to a case wherein a hearing to determine the character of the land was ordered prior to the issuance of said circular, and such hearing has not been held in pursuance of said order.

Secretary Smith to the Commissioner of the General Land Office, February (J. I. H.) 11, 1896. (W. F. M.)

On December 15, 1893, Henry M. Williams made homestead entry of the W. of the SW. of section 26, township 96 N., range 36 W., in the land district of Des Moines, Iowa.

By your office letter ("K") of August 13, 1894, the entry of Williams was relieved from suspension on account of conflict with the State's claim under the swamp land grant, and the register and receiver were directed to so advise him. This action was taken in pursuance of circular of December 13, 1886 (5 L. D., 279), under which the State of Iowa had received the required notice, and to which no objection appeared to have been made by the State. On the same day, and by the same letter, the claim of the State, which had on September 21, 1882, selected the lands in controversy as swamp, was rejected.

On September 25, 1894, C. T. Archer filed in the local office a petition, alleging that he bought the land of Clay county, and has been in the possession of the same for over ten years; that the entry of Williams is illegal and contrary to law; that he has a good and sufficient deed for the same from the county of Clay; that he at no time had any notice or information served on him by the said local office or by any other person; that he had no notice of the claim or of his entry until recently; that he has had no notice of appeal, and that the local office had no right or authority to allow the entry, the same being swamp land. He prays that the case be opened; that notice be served on him; that he be allowed to appear, and that a day be appointed for a hearing to determine the character of the land; that the entry be canceled, and that all the papers, together with his petition, be sent to your office. This was duly transmitted to your office, and by office letter (“K”) of October 6, 1894, the action previously taken in the matter was affirmed.

On October 20, 1894, Archer filed in the local office an appeal from the decisions of your office in this matter, and assigned as errors, in substance, his ownership of the land; its vestiture in the State by virtue of the act of September 28, 1850; his open, continuous and notorious possession of the same for more than ten years, and want of notice of any action in connection therewith by the register and

receiver. Furthermore, on the same date he filed in the local office an application to this Department to be permitted to intervene in the matter, and set out as reasons therefor the specifications of error, in an elaborated form, assigned in his appeal; so that there can be no doubt that the whole matter is now before this Department for such action as may be proper to be taken.

These proceedings are resisted by the homestead entryman Williams, who insists upon the non-swampy character of the land; that Archer was not entitled to notice; that due and regular notice was given to the governor of the State and to the auditor of Clay county, within which the land is situated, and that the law and the regulations require nothing further.

The provisions of the circular under which the entry of Williams was allowed, in so far as they have any application to the present controversy, are the first and second paragraphs, as follows:

1. When any settler upon such lands or applicant to enter the same under the public land laws of the United States shall apply to make a filing or entry under said laws, accompanied by a statement under oath corroborated by two witnesses, that the land in its natural state is not swamp and overflowed and rendered thereby unfit for cultivation, the register and receiver will allow such filing or entry "subject to the swamp land claim."

2. Upon the admission of any such filing or entry the register will at once notify the governor of the State thereof, and allow him sixty days within which to object to the perfection of the entry and to apply for a hearing in behalf of the State to prove the swampy character of the land.

It appears that these provisions were strictly observed in the present case, but that the governor made no answer, nor took any action in resistance of the effort of the entryman to have his entry allowed and perfected.

This land was selected by the State of Iowa under the swamp land grant on December 21, 1882, and notification thereof was duly made to the local office and to the General Land Office.

On March 10, 1883, by your office letter (· K ") a hearing was directed for the purpose of determining the character of the land in controversy. No hearing has been held, however, in pursuance of this order, nor has any examination ever been made in the field by an agent of your office.

The question presented appears to be, whether or not, if it be true as claimed by Archer that the land was swamp on September 28, 1850, the date of the granting act, such action as the law contemplates has been taken to ascertain that fact, and, further, whether, though the State may be concluded by the proceedings heretofore outlined, its transferee Archer is also concluded. I think both of these propositions must be answered in the negative.

The swamp land grant has been held to be one of the present, vesting an immediate interest, as was said in the case of W. H. Cushing et al. v. State of Michigan, 4 L. D., 415, and as has been repeatedly decided