ALIENATION-HOMESTEAD-SECTION 2290 R. S. CUMMINS v. CRABTREE. An agreement entered into between an entryman and an adverse claimant, whereby the entryman, for the purpose of avoiding a contest, undertakes to relinquish a specified part of the land covered by his entry, is not in violation of section 2290 R. S., as amended by the act of March 3, 1891. Secretary Bliss to the Commissioner of the General Land Office, December (W. V. D.) 24, 1898. (W. A. E.) The defendant in the case of Jhilson P. Cummins v. John S. Crabtree has appealed from your office decision of March 19, 1897, holding for cancellation his homestead entry, made September 23, 1893, for the SE. of Sec. 24, T. 22 N., R. 7 W., Enid, Oklahoma, land district. September 30, 1893, Cummins filed an affidavit of contest against said entry, alleging prior settlement, and on April 1, 1894, he filed an amended affidavit of contest, alleging, in addition to his former charges, that on September 25, 1893, Crabtree entered into a written agreement to relinquish eighty acres of said land in one hundred days from that date, for a consideration of $100, which was to settle the settlement rights of this affiant and D. W. Marshall, who claimed to be the first settler on the land, and said Crabtree agreed to allow said affiant to file on said eighty acres, which he now refuses to do, thereby perpetrating a fraud on said affiant and D. W. Marshall. A hearing was had December 9, 1895, and on June 4, 1896, the local officers recommended that the contest be dismissed and the entry held intact. On appeal, however, your office held the entry for cancellation on the ground that said entry was not held for the sole benefit of the entryman, but for the use and benefit of himself and Cummins. It appears that Cummins, Crabtree, and one D. W. Marshall were settlers on this land. Crabtree made entry of the tract and Cummins and Marshall were about to file affidavits of contest against him when a compromise was made between them. By the terms of an agreement entered into and signed September 25, 1893, Crabtree was to relinquish eighty acres in one hundred days from date in order that Cummins might make entry thereof, and Cummins and Crabtree together were to pay Marshall one hundred dollars to abandon all claim he might have to land. This agreement and the note given to Marshall to secure the payment of the one hundred dollars were introduced in evidence and read as follows: ENID, OKLAHOMA TERRITORY, September 25, 1893. I, John S. Crabtree, hereby agree to relinquish to J. P. Cummins the eighty acres he may select, running east and west, in one hundred days from this date; the land referred to is the SE. of Sec. 24, T. 22, R. 7 W., I. M.; and should there be a contest, the said J. P. Cummins agrees to render the said John S. Crabtree all the assistance he can in defeating said contest, and D. W. Marshall agrees to render said Crabtree all the assistance he can to defeat said contest; and it is understood that said Crabtree relinquishes this land to avoid a contest. JOHN S. CRABTREE, J. P. CUMMINS, ENID, OK. TY., September 25, 1893. I, J. P. Cummins, promise to pay to D. W. Marshall the sum of one hundred dollars in one hundred days from this date, provided there is not a contest successfully filed on the SE. of Sec. 24, T. 22 N., R. 7 W., otherwise than by himself, and should there be a contest filed by some other person, the amount paid out to defeat said contest is to be deducted from said note. This note is not to be transferred, and the signers to this note agree to act in good faith and not procure anyone to file a sham contest, and the said D. W. Marshall agrees to render all the assistance he can, if there is a contest filed on said land. J. P. CUMMINS, Prin. It is alleged that there was also an understanding between the parties that Cummins should file his affidavit of contest against Crabtree's entry in order to forestall like action on the part of others, and that in accordance with this understanding Cummins did, on September 30, 1893, file affidavit of contest alleging prior settlement. At the expiration of the hundred days mentioned in the contract Cummins called upon Crabtree to perform his part of the agreement, but the latter repudiated the contract and refused to relinquish any portion of the land, whereupon Cummins filed his amended affidavit of contest. Crabtree admits having entered into the contract, but says that it was for the purpose of avoiding a contest and that Cummins violated the contract by instituting a contest a few days after the contract was made. He denied that there was any understanding between himself and Cummins that this contest should be filed to forestall other possible contests. In the light of the two instruments, hereinbefore quoted, both signed by Crabtree and Cummins, it is clear that Crabtree's present statement is untenable and that it was contemplated by them that Cummins should institute such a contest. The testimony shows that Crabtree followed up his settlement by the establishment of residence within a reasonable time and that he has cultivated and improved the land. Cummins made some improvements on the land in September, 1893, but subsequently abandoned his settlement. He alleges that Crabtree threatened him with bodily harm if he remained on the land, but this is not sustained by the evidence. It is not necessary, then, to go into the question of priority of settlement, as it has been held that a contest against a homestead entry on the ground of prior settlement must fail if it appears that the contestant's alleged acts of settlement were not followed up by the establishment and maintenance of residence. Benjamin v. Eudaily, 25 L. D., 103; Thompson et al. v. Craver, id., 279. As the case is now presented to the Department the only question for decision is whether the contract entered into by Crabtree on September 25, 1893, rendered his entry illegal. Section 2290 of the Revised Statutes, U. S., as amended by the act of March 3, 1891 (26 Stat., 1095), reads as follows: That any person applying to enter land under the preceding section shall first make and subscribe before the proper officer and file in the proper land office an affidavit that he or she is the head of a family, or is over twenty-one years of age, and that such application is honestly and in good faith made for the purpose of actual settlement and cultivation, and not for the benefit of any other person, persons, or corporation, and that he or she will faithfully and honestly endeavor to comply with all the requirements of law as to settlement, residence, and cultivation necessary to acquire title to the land applied for; that he or she is not acting as agent of any person, corporation, or syndicate in making such entry, nor in collusion with any person, corporation, or syndicate to give them the benefit of the land entered, or any part thereof, or the timber thereon; that he or she does not apply to enter the same for the purpose of speculation, but in good faith to obtain a home for himself or herself, and that he or she has not directly or indirectly made, and will not make, any agreement or contract in any way or manner, with any person or persons, corporation, or syndicate whatsoever, by which the title which he or she might acquire from the government of the United States should inure, in whole or in part, to the benefit of any person, except himself, or herself, and upon filing such affidavit with the register or receiver on payment of five dollars, when the entry is of not more than eighty acres, and on payment of ten dollars when the entry is for more than eighty acres, he or she shall thereupon be permitted to enter the amount of land specified. It is clear that if Crabtree had entered into an agreement whereby the title which he might acquire from the government should inure, in whole or in part, to the benefit of Cummins, his entry would thereby have been rendered illegal, even though the agreement was made to avoid a contest. Meal r. Donahue, 24 L. D., 155. It is to be observed, however, that the arrangement between Crabtree, Cummins and Marshall was not made and was not in contemplation, until after the allow ance of Crabtree's entry, and Crabtree did not agree to convey any portion of the land to Cummins or to acquire title thereto for Cummins' benefit. The contract was to relinquish eighty acres within one hundred days from the date thereof. A homesteader has the right to relinquish at any time either the whole of the land embraced in his entry or any legal subdivision thereof, but such a relinquishment runs to the government. It can not be made to any person, and the statement in a relinquishment that it is made for the benefit of anyone is mere surplusage. Jonathan K. Cox, 13 L. D., 638. Had Crabtree relinquished eighty acres in accordance with his contract, the land so relinquished would have been open to entry by the first legal applicant and Cummins's contract with Crabtree would not have given the former any preference right to the land. As the statement in a relinquishment that it is for the benefit of a certain person is without effect, so the statement in an agreement to relinquish that the relinquishment is to be made for the benefit of a certain person is equally without effect. It does not appear, then, that the agreement entered into by Crabtree comes within the inhibition of the statute quoted above. The Department has no means of enforcing this contract and it is doubtful whether an agreement like this, intended to restrain and defeat all contests, meritorious or otherwise, by persons not parties to the contract, ought to be recognized even if the Department had the power to do so. Your office decision is hereby reversed, Cummins's contest is dismissed, and Crabtree's entry is held intact, subject to compliance with law. SWEET v. BEHAR. Motion for review of departmental decision of October 25, 1898, 27 L. D., 557, denied by Acting Secretary Ryan, December 27, 1898. RIGHT OF WAY-STATION GROUNDS–SURVEY. NEW MEXICO AND ARIZONA R. R. Co. On application for the approval of a plat showing the location of station grounds, the land involved, though within a partly unsurveyed township, may be treated as surveyed, where it lies within a surveyed townsite, and the survey of said station grounds is duly connected with the public surveys. Acting Secretary Ryan to the Commissioner of the General Land Office, December 27, 1898. (A. M.) I have before me your letter of the 9th instant with which you have submitted and recommended the approval of a plat filed by the New Mexico and Arizona Railroad Company under the right of way railroad act of March 3, 1875 (18 Stat., 482). The plat shows a tract of 193 acres within the townsite of Nogales, Arizona, selected by the company for station grounds. The map of definite location of 27.81 miles of the company's road at this point was approved by the Department on October 28, 1882. The grounds under consideration lie in the SW. of section 17, and the NW. of section 20, fractional township 24 S., R. 14 E., Gila and Salt River base and meridian. While the public surveys have not been extended over this fractional township in whole, the six hundred and forty acres included in the above mentioned townsite have been surveyed and duly connected with the public survey corners of the tier of townships immediately north thereof. The survey of the station grounds is also connected with the surveyed township corners so that its location is fully determined and fixed. Under these conditions, the lands involved may properly be considered as surveyed lands, for the purposes of the railroad right of way act. Among the papers submitted are affidavits showing that the company's road has long been constructed and that the station grounds have been occupied for nine years past. The town has through W. T. Overton, Mayor, acquiesced in the claim of the company and the Mayor has stated that "the town authorities desire to make no objection, or protest in the matter." In view of the foregoing I have approved the plat as recommended and return it and the papers herewith. ISOLATED TRACT-ACT OF FEBRUARY 26, 1895. The words "entered, filed upon, or sold," as used in the act of February 26, 1895, On July 12, 1897, there was received in the Department the petition of Francis Adkinson, addressed to the Secretary of the Interior, praying him to recall and vacate his decision in this cause, rendered on the 26th day of December, 1896, affirming the decision of the Hon. Commissioner of the General Land Office, and also the decision made the 10th day of May, 1897, denying a motion for review in said cause. The petition alleges that the decisions complained of are founded upon an erroneous construction of the proviso in the act of February 26, 1895 (28 Stat., 687), amending section 2455 of the Revised Statutes. On November 25, 1895, Francis Adkinson applied to have the SW. 4 of the NW. and the NW. 4 of the SW. of section 21, township 21 N., range 1 E., Helena land district, Montana, with other tracts therein described, ordered into market under section 2455 of the Revised Statutes of the United States, as amended by the act of February 26, 1895 (28 Stat., 687). Your office, by letter of December 20, 1895, refused to order the sale, holding that the land was not an isolated tract. On appeal, your office decision was affirmed by the Department by decision dated December 26, 1896 (23 L. D., 590), and on motion for review, it appearing by the records of your office that the E. of the NW. and the NW. 4 of the NW. of said section 21, is covered by preemption declaratory statement, No. 6262, made March 23, 1884, alleging settlement March 20, 1884, which expired upon failure to make final proof thereunder within thirty-three months, the Department, on May 3, 1897 (24 L. D., 395), adhered to departmental decision of December 26, 1896. Section 2455, Revised Statutes, as amended by act of February 26, 1895, reads as follows: It shall be lawful for the Commissioner of the General Land Office to order into market and sell for less than one dollar and twenty-five cents per acre any isolated or disconnected tract or parcel of the public domain less than one quarter section which in his judgment it would be proper to expose to sale after at least thirty days' notice by the land officers of the district in which such lands may be situated: Provided, That lands shall not become so isolated or disconnected until the same have been subject to homestead entry for a period of three years after the surrounding land has been entered, filed upon, or sold by the government: Provided, That not more than one hundred and sixty acres shall be sold to any one person. |