The land-office fee for filing a declaratory statement is $2, except in the Pacific States and Territories, where the fee is $3.

SECOND PREEMPTION FILING.

The second filing of a declaratory statement by any preemptor who was qualified at the date of his first filing is illegal. (Sec. 2261, Rev. Stat. Baldwin v. Stark, 107 U. S. 463; also Secretary's decision of February 27, 1884, case of Raymond, 10 Copp, 395.) Where the first filing, however, was illegal from any cause not the willful act of the party, he has the right to make a second and legal filing. (Goist v. Bottum, 5 L. D. 643.) And the right to make a second filing will be recognized when, through no fault or negligence of the preemptor, consummation of title was not practicable under the first. (Paris Meadows et al., 9 L. D. 41.)

RELINQUISHMENT OF PREEMPTION FILINGS

Preemption filings may be relinquished by the claimants in writing, filed with the register and receiver of the proper district land office, or the relinquishment may be executed by the claimant on the back of the declaratory statement receipt. Notice of such relinquishment should be promptly forwarded by the register to the Commissioner of the General Land Office for his information.

PROOF AND PAYMENT

On offered lands proof and payment must be made within 12 months from date of settlement.

If the land is unoffered, proof and payment may be made within 33 months from date of settlement, or in case of unsurveyed lands from date of filing plat of survey in the district office.

The preemption laws are intended for the benefit of persons making settlement upon the public lands, followed by residence and improvement and the erection of a dwelling thereon. Residence must be both continuous and personal. (Bohall v. Dilla, 114 U. S. Sup. C. Rep., 47, 51.)

"It was necessary for the preemptor to prove that he occupied the premises continuously after filing his declaratory statement." (Ibid.) The department requires, in evidence of the genuineness of settlement, that six months of actual residence shall be passed before proof and payment, and then proof of compliance with law in all respects must be sufficient and satisfactory. A party offering proof in the shortest time can not be excused on that account for any noncompliance with the requirements of residence and agricultural improvement, since he is not obliged to make proof and payment at the earliest period the law allows, but has sufficient time within which to fully comply with the law.

A failure to make proof and payment as prescribed by law renders the land subject to appropriation by the first legal applicant, but in the absence of an adverse claim proof and payment can be made after the expiration of the 12 or 33 months allowed.

Failure to inhabit and improve the land in good faith, as required by law, renders the claim subject to contest and the entry to investigation and cancellation.

Final proof in preemption cases must be made to the satisfaction of the register and receiver, whose decision, as in other cases, is subject to examination and review by this office and department.

When two or more settlers on unsurveyed land are found upon survey to be residing upon or to have valuable improvements upon the same smallest legal subdivision, they may make joint entry of such tract and separate entries of the residue of their claims. This joint entry may be made in pursuance of contract between the parties or without it. (Rev. Stat., sec. 2274.)

Publication of notice to make proof is required in the same manner as in homestead and other cases.

In making final proof the preemptor must appear in person with his witnesses at the district office, or before the clerk of the county court or of a court of record of the county or parish and State, or district and Territory, in which the land is situated, or before any United States commissioner appointed under act of May 28, 1896 (29 Stat. 184), within the land district, in accordance with the act of March 11, 1902 (32 Stat. 63), and make the affidavit and proof prescribed, or in Territories the proof may be made before a United States court commissioner as provided by act of March 2, 1895 (28 Stat. 744).

It is held, however, that "the law does not authorize the making of such proofs and affidavits before such commissioner outside of the county and State, or district and Territory, in which the lands are situated, unless the lands are situated in any unorganized county. which case is otherwise fully provided for by law." (Secretary's decision of October 2, 1890, case of Edward Bowker, 11 L. D. 361.)

The preemptor is required to make oath that he has not previously exercised his preemption right; that he is not the owner of 320 acres of land; that he has not settled upon and improved the land to sell the same on speculation, but in good faith to appropriate it to his own exclusive use; that he has not made any contract or agreement, directly or indirectly, in any way or manner, with any person whomsoever, by which the title he may acquire from the United States shall inure in whole or in part to the benefit of any person except himself. (See Form 4-061.)

Any person swearing falsely forfeits all right to the land and to the purchase money paid, besides being liable to prosecution under the criminal laws of the United States.

Final proof, in addition to the affidavit of claimant, must consist of the testimony of the claimant, corroborated by that of at least two witnesses, taken separately, to the facts constituting his qualifications, and his compliance with law as to settlement, inhabitancy, improvement, nonalienation, etc. (Rev. Stat., sec. 2263; Form 4-374.)

The exact date of beginning and of ending of each and of every absence from the land should be particularly stated, and the reasons therefor fully given, so as to enable the department to determine as to the sufficiency of the explanation.

See instructions of Oct. 19, 1929, p. 1149.

The affidavit of claimant, his testimony, and the testimony of his witnesses, and the nonmineral affidavit (where required) must be made at the same time and place and before the same officer.

No other officer than the register or receiver, or the judge or clerk of a court of record of the county or parish in which the land is situated, or a United States commissioner appointed under act of May 28, 1896 (29 Stat. 184), within the land district, in accordance with the act of March 11, 1902 (32 Stat. 63), can take proofs in preemption cases, except that when the land is in an unorganized county the proofs may be made before the same officers in an adjacent county in the same State or Territory. (Sec. 2263, Rev. Stat.; act of June 9, 1880, 21 Stat., 169; circular, March 30, 1886, 4 L. D. 473; act of May 26, 1890, 26 Stat. 121.)

EXTENSION OF TIME FOR PAYMENT

In reference to the joint resolution of September 30, 1890, and act of July 26, 1894, providing therefor, see pages 10 and 209.

LEAVES OF ABSENCE

In reference to statutes allowing leaves of absence in certain cases, see pages 16-18.

ASSIGNEE OF A PREEMPTOR BEFORE PATENT

An assignce of a preemptor before patent has no claim upon the United States for the land nor for the money paid, in event of the failure of the claim and cancellation of the entry for fraud or false swearing by entryman. (Sec. 2262, Rev. Stat.)

HEIRS OF A DECEASED PREEMPTOR

Should a preemptor die without establishing his claim within the period limited by law, the title may be perfected by the executor, administrator, or one of the heirs, by making the requisite proof of settlement and paying for the land, the entry to be made in the name of "the heirs" of the deceased settler, and the patent will be issued accordingly. The legal representatives of the deceased preemptor are entitled to make the entry at any time within the period during which the preemptor would have been entitled to do so had he lived. (Rev. Stat., sec. 2269.)

PREEMPTION CLAIMANTS WHO BECOME INSANE

The rights of a preemption claimant who has become insane may, ander act of June 8, 1880, be proved up and his claim perfected by any person duly authorized to act for him during his disability. (21 Stat. 166.)

The references are to pages of circular of Jan. 25, 1904, not carried in this publication. On pages 10 and 209 of said circular, the instructions relate to extensions of time for payments, authorized by the acts of Sept. 30, 1890 (26 Stat. 684), and July 26, 1894 (28 Stat. 123). On pages 16 to 18, inclusive, the instructions refer to leaves of absence authorized by section 3 of the act of March 2, 1889 (25 Stat. 854), and by the acts of July 1, 1879 (21 Stat. 48), and Jan. 19, 1895 (28 Stat. 634).

Such claim must have been initiated in full compliance with law, by a person who was a citizen or had declared his intention of becoming a citizen, and was in other respects duly qualified.

The party for whose benefit the act shall be invoked must have become insane subsequently to the initiation of his claim.

Claimant must have complied with the law up to the time of becoming insane; and proof of compliance will be required to cover only the period prior to such insanity; but the act will not be construed to cure a failure to comply with the law when the failure occurred prior to such insanity.

The final proof must be made by a party whose authority to act for the insane person during his disability shall be duly certified under seal of the proper probate court.

PRICE OF LAND TO PREEMPTORS

The price of land to a preemptor upon "minimum" lands-i. e., lands not within the limits of a grant to a railroad or some other work of internal improvement-is $1.25 per acre. Within the limits of such grant the price is $2.50 per acre; but settlers, prior to withdrawal, are allowed to enter at $1.25 per acre, provided they shall file notice of their claims and make proof and payment as in other cases. (Rev. Stat., secs. 2257, 2259, 2279, 2281, 2357.)

PRIVATE ENTRIES

PURCHASE AT PRIVATE ENTRY1

The sale of lands at public auction was, prior to March 3, 1891, provided for by law (Rev. Stat., secs. 2353, 2357, 2358, 2359, 2360, and 2455), but such sales were prohibited by sections 9 and 10 of the act of that date (26 Stat. L. 1095), save under the exceptions noted in said sections, which read as follows:

SEC. 9. That hereafter no public lands of the United States, except abandoned military or other reservations, isolated and disconnected fractional tracts. authorized to be sold by section twenty-four hundred and fifty-five of the Revised Statutes, and mineral and other lands, the sale of which at public auction has been authorized by acts of Congress of a special nature having local application, shall be sold at public sale.

SEC. 10. That nothing in this act shall change, repeal, or modify any agreements or treaties made with any Indian tribes for the disposal of their lands, or of land ceded to the United States to be disposed of for the benefit of such tribes, and the proceeds thereof to be placed in the Treasury of the United States; and the disposition of such lands shall continue in accordance with the provisions of such treaties or agreements, except as provided in section five of this act.

The first section of the act of Congress of March 2, 1889 (25 Stat. L. 854), provides that from and after its passage "no public lands of the United States, except those in the State of Missouri, shall be subject to private entry." This relates to the private sale or entry of offered" lands under sections 2354 and 2357, United States Revised Statutes. No sale at private entry will be admissible under said first section, except in Missouri, in which State all public lands are subject to private sale by section 2 of the act of Congress approved May 18, 1898 (30 Stat. L. 418), but in making purchase under that act the purchaser is required to show the absence of any prior adverse settlement right.

These provisions of said acts of 1889 and 1891, while forbidding the disposal at public auction or private sale of the mass of public lands under the general statutes that formerly provided therefor, do not necessarily prevent the disposal of lands under any act of Congress of a special nature having local application, in such manner as therein provided for, in reference to any specific lands or class of lands, although this may include the disposal thereof at public auction or private sale, as, for example, coal lands at private entry under section 2347, Revised Statutes, circular July 31, 1882, 1 L. D. 687; Osage trust and diminished reserve lands at private entry, last sentence, section 3, act of May 28, 1880, 21 Stat. L. 143; salt spring reserve lands, act of January 12, 1877, 19 Stat. L. 221.

1 Extract from circular of Jan. 25, 1904, not carried in this publication.