A pre-emptor is not prohibited from carrying on business elsewhere than on the land, provided his actual residence is thereon(*). The rights of a pre-emption settler who was compelled to leave and be absent from his claim on account of Indian hostilities should be protected(”). Party cannot reside on a pre-emption and a homestead claim at the same time(*). The claim of a pre-emptor is not rendered invalid by his allowing another to live with him, and work the crops for him, with an equal interest in same, provided the settlement was made for the purpose of acquiring title for his own use and benefit(a). The rule of the General Land Office, requiring six months' residence prior to entry, as an evidence of good faith on the part of the pre-emptor, should not be applied to every case indiscriminately, especially where the character and amount of improvements on a tract are such as are ordinarily made in six months; and where the settler has acted in good faith, and from the action of the local land officers in accepting proof and payment for the land, they knowing that there had not been residence of six months, he reasonably concludes that his action has been according to law and instruction (*). Two months' residence upon a pre-emption claim is not sufficient to entitle a claimant to make entry. The rule requires at least six months' continuous residence. A claimant cannot set up his imprisonment for a crime as an excuse for failure to comply with the requirements of the law. Lawful imprisonment is not legal duress. A claimant lawfully confined in the penitentiary for life is civilly dead, and incapable of perfecting a claim to public land under the pre-emption law. A homestead entry, commuted from a second and therefore illegal pre-emption declaratory statement, is not itself invalid, but may under some circumstances date from the time it was made(f). Occupation and use of land for purposes other than cultivation, do not constitute a preemption claim(s). Actual crops are not necessary to the cultivation of land. Clearing timber, in this case, is sufficient(). Proof, Payment and Contest. A mortgage given by a pre-emptor as security for money loaned him with which to pay the Government price for the land filed upon, is not an alienation of the land, nor an agreement prohibited by the law(1). A mortgage in Nebraska does not convey the legal title('). A mortgage of land filed upon by a pre-emptor, and outstanding at date of entry, does not defeat his right(*). A pre-emptor has the right to make proof and payment after the expiration of the prescribed time unless a valid adverse claim has intervened. Public notice is the initiation of final pro ceedings(1). A pre-emptor who fails to make final proof within the time prescribed by law, loses his right to do so after a valid adverse timber culture claim intervenes (m). Other claimants who allege bad faith in the initiation of a prior pre-emption claim may cite such pre-emptor to a hearing, though the pre-emptor cannot cite them to a hearing previous to make final proof and payment("). (*) Henry Buchman, Land Owner, Vol. 10, p. 355. (*) Conlin vs. Yarwood, Land Owner, Vol. 7, p. 118, Vol. 8, p. 37. Where a pre-emptor fails to assert his claim within the legal period, though his filing is still uncanceled, it is error to order a hearing when an entry of the same land is made thereafter. Where the pre-emptor, after such hearing, files a relinquishment, he cannot have his rights einstated on the ground that the adverse party has failed to pay money due on account of uch relinquishment("). Parties who purchase.of pre-emptors before patent can not maintain the position of bona fide purchaser, as they purchase only an equity. They take only such title as the vendees of the Government had, and purchase subject to the action of the Land Department upon the entries, either in confirming or canceling them. Such purchasers may be heard ex rel., to maintain the validity of the entries embracing the lands purchased, but for no other purpose. Patents should not issue to assignees in any cases except where the right of assignees to take patents in their own names is recognized by express statutory provisions("). The purchaser from a pre-emptor has no standing before the Land Department. If patent issues, it issues to the pre-emptor, though it may inure to the purchaser's benefit. Section 2262 R. S. refers to sales before, not after, entry-and the clause protecting innocent purchasers has reference to the effect of the conveyance as between grantor and grantee, and not to its effect as between either party and the government (c) (*) Schmitt vs. Knauf, Land Owner, Vol. 10, p. 193. () Charlemagne Tower, Land Owner, Vol. 10, p. 297. (b) Whitaker vs. South P. R. R. Co., Land Owner, Vol. 7, p. 85. CHAPTER V. TIMBER CULTURE. The object of the timber culture law is to promote the growth of timber by providing a method of acquiring title to public lands on condition that timber shall be grown thereon to an extent and for a period of time therein specified. The wisdom of this law is seen in the increased annual rainfall in regions heretofore subject to frequent droughts. a. WHO MAY APPLY AND FOR WHAT KIND OF LAND. Any person who is the head of a family, or who has arrived at the age of twenty-one years, and is a citizen of the United States, or who has filed his declaration of intention to become such, as required by the naturalization laws of the United States, may make a timber culture entry without regard to how much land he already owns. A single woman, duly qualified, who has made an entry under the timber culture act, and subsequently marries, is not thereby debarred from acquiring title to the land (*). Registers and Receivers, and their clerks and employees, and all persons intimately or confidentially connected with such officers or employees, are prohibited from making entries of the public lands at the offices with which they are connected (b). Not more than one hundred and sixty acres in any one section can be entered, and no person can make more than one entry. The rulings of the General Land Office restricting entries under the timber culture laws to "technical quarter sections," have been so far modified as to permit entries of parts of a section in a compact body, not to exceed one hundred and sixty acres (°). A few scattering willows and stumps will not characterize land as timber within the meaning of the timber culture act(d). A few trees or bushes do not characterize the land upon which they are found, as timber land within the meaning of the statute(*). Land through which passes a stream of water, upon the banks of which is a growth of "scrub" umber, is subject to entry under the timber culture laws(). An eighty acre tract upon which trees are growing, many of them more than five inches in diameter, is not subject to entry under the timber culture laws (8). Where a party applies to enter under the timber culture laws, land which appears upon the ownship plat as already timbered, and is informed that he must disprove such apparent character, this application reserves the mentioned tracts for a reasonable time from further disposition any other claimant(1). to Land covered by an invalid State selection may be entered under the provisions of the imber culture act if otherwise subject thereto (1). Prairie lands, or lands not prairie but naturally devoid of timber, are subject to the operation of the timber culture laws(). (a) G. M. King, Land Owner, Vol. 2, p. 39. (b) State of Nebraska vs. Dorrington et al., Land Owner, Vol. 3, p. 122. (0) Frederick Brau, Land Owner, Vol 3, p. 172. () W. E. Fosnat, Copp's Public Land Laws, p. 653. (d) Adam Windolph, Land Owner, Vol. 1, p. 93. Lampson vs. Dunham, Copp's Public Land Laws, p. 655. () Linden vs. Gray, Land Owner, Vol. 3, p. 181. (h) Lamb vs. Reeser, Land Owner, Vol. 3, p. 73. (1) State of Nebraska vs. Dorrington et al., Land Owner, Vol. 3, p. 122. Lure and Porter, Land Owner, Vol. 3, p. 71. 6 (81) b. APPLICATION, ENTRY AND PROOF. The application to enter is in the following form: APPLICATION No. —. I, hereby apply to enter, under the provisions of the act of June 14, 1878, entitled "An Act to amend an act entitled 'An Act to encourage the growth of timber on the Western Prairies,' 4ection in township -, containing acres. the of range LAND OFFICE AT 18. -, Register of the land office, do hereby certify that the above application is for the class of lands which the applicant is legally entitled to enter under the provisions of the timber culture act of June 14, 1878; that there is no prior valid adverse right to the same, and that the land therein described, together with the lands heretofore entered under this act and the acts of which this is amendatory in the said section, does not exceed one-quarter thereof. -, Register. This must be accompanied by the following affidavit, which may be made before the Register or the Receiver, or the clerk of some court of record, or officer authorized to administer oaths, actually within the district where the land is situated. AFFIDAVIT. LAND OFFICE AT 18 ap having filed my application No., for an entry under the provisions of an act entitled "An Act to amend an act entitled 'An Act to encourage the growth of timber on the Western Prairies,' proved June 14, 1878, do solemnly that I am the head of a family [or over twenty-one years of age), and a citizen of the United States [or have declared my intention to become such]; that the section of land specified in my said application is composed exclusively of prairie lands, or other lands devoid of timber; that this filing and entry is made for the cultivation of timber, and for my own exclusive use and benefit; that I have made the said application in good faith, and not for the purpose of speculation, or directly or indirectly for the use or benefit of any other person or persons whomsoever; that I intend to hold and cultivate the land, and to fully comply with the provisions of this said act; and that I have not heretofore made an entry under this act, or the acts of which this is amendatory. Whereupon the Receiver will issue his receipt for the money received by him, giving the ap plicant a duplicate thereof: Received of the sum of RECEIVER'S OFFICE 18-. dollars - cents, being the amount of fee and compensation of Register and Receiver for the entry of of section- -, in township -, of range, under the first seetion of the act of Congress approved June 14, 1878, entitled, "An Act to amend an act entitled 'An Act to encourage the growth of timber on the Western Prairies.' Receiver. The fees for entries are $10 if the tract applied for is more than eighty acres; and $5 if it is eighty acres or less; and the commissions of Registers and Receivers on all entries (irrespective of area) are $4 ($2 to each) at the date of entry, and a like sum at the date of final proof. No distinction is made, as to area or the amount of fee and commissions, between minimum and double-minimum lands. A party may enter one hundred and sixty acres of either on payment of the prescribed fee and commissions. Entries may be made of subdivisions of different quarters of the same section; provided that each entry shall form a compact body, not exceeding one hundred and sixty acres, and that not more than that quantity shall be entered in any one section. The fifth section of the act approved March 3, 1857, entitled "An Act in addition to an act to punish crimes against the United States, and for other purposes," is extended to all oaths, affirmations, and affidavits required or authorized by the timber culture law. No land acquired under the provisions of this law will in any event become liable to the sat isfaction of any debt or debts contracted prior to the issuing of the final certificate therefor. The affidavit required of applicants must be made at the time the application is filed, except when made before an officer authorized to use an official seal, when a reasonable time should be allowed for transmission to the local land office("). The filing of the application and affidavit, with payment of fees, are essential prerequisites to (a) Hiram Campbell, Land Owner, Vol. 5, p. 21. the allowance of a timber culture entry, and he who first complies with the conditions obtains priority of right. A prior verbal application, unaccompanied by the written application, etc., gives no preferenc right, as it is not the duty of the local officers to prepare the necessary papers(*). An application was rejected because the affidavit upon which it was based was executed whil another timber culture entry covered the land in question("). A qualified party may relinquish a timber culture entry of eighty acres, and thereafter may enter the same under the act of March 3, 1879, as an additional entry to his original entry, as described in this case(). A timber-culture settler may relinquish a portion of the land embraced in his entry, and hold the remainder(). There is no provision of law for a second timber culture entry(*). An application to transmute a pre-emption filing to a timber culture entry cannot be allowed(). In the case of the death of a party having made a timber culture entry, who leaves a widow and heirs, his rights under the entry go to the heirs and not to the widow, contrary to the rule which prevails in similar cases arising under the homestead laws(). The term "legal representatives," as used in the timber culture act, does not include a party acting under a power of attorney. The heirs or legal representatives of a deceased party, who had made a timber culture entry, may continue the cultivation of the trees, and on compliance with the law will receive a patent for the land(). But in case the trees are not cultivated by the heirs, the entry will be liable to cancellation. A prior pre-emption settlement will defeat a timber culture entry(1). A pre-emptor's right to land attaches from date of settlement, and a timber culture claimant's from date of entry at the local office. Where a pre-emptor has falsely alleged that he settled prior to the date of the timber culture entry, two courses may be pursued by the timber culture claimant to protect his rights. 1. He may wait until the pre-emptor proves up, when the actual date of settlement may be shown, or() 2. He may present to the local officers his affidavit calling in question the alleged date of settlement, and asking that a hearing be ordered to determine the respective rights of the parties in interest(i). A party cannot enter under the homestead law a part of the land embraced in his timber culture entry. He may relinquish his timber culture entry, in whole or in part; and upon cancellation thereof, he may, if he is the first legal applicant, enter any part of the land as a homestead(*). The ratio of area required to be broken, planted, etc., is one-sixteenth of the land embraced in the entry, except where the entered tract is less than forty acres, in which case it is onesixteenth of forty acres. The party making an entry of a quarter section, or one hundred and sixty acres, is required to break or plow five acres covered thereby during the first year, and five acres in addition during the second year. The five acres broken or plowed during the first year he is required to cultivate by raising a crop, or otherwise, during the second year, and to plant in timber, seeds, or cuttings, during the third year. The five acres broken or plowed during the second year he is required to cultivate by raising a crop, or otherwise, during the third year, and to plant in timber, seeds, or cuttings, during the fourth year. The tracts embraced in entries of a less quantity than one-quarter section are required to be broken or plowed, cultivated, and planted in trees, tree-seeds, or cuttings, during the same periods, and to the same extent, in pro. portion to their total areas, as are provided for in entries of a quarter section. (*) Day mude vs. McNeely, Land Owner, Vol. 3, p. 38. () W. C. Latimer, Land Owner, Vol. 8, p. 122. |