, 1882-06-09


DEPARTMENT OF THE INTERIOR,
WASHINGTON, March 25, 1882. (
The Commissioner of the General Land
Office.
SIR: L have considered the appeal of
John H. Lessinger from your decision
OF September II. 1881, rejecting his APP
plication for cancellation of his pre-
emption cash entry upon the hf of the
sw or of sec 12 tip u, II west, Larned,
Kansas, and to be allowed to enter said
tract as additional to his homestead en-
try for the W hf of the sw or Of said Sec
ton, or upon refusal thereof, that he be
allowed to date his homestead entry
from the date of his settlement under
n his pre-emp ption filing, instead of its act
sMual date of record.
Y 1t appears that Lessinger fled pre-
emption declaratory statement for the
sw or of said section April 9th, alleging
settlement April 7th, 1874, and made
cash entry for tho Q hf of said sw or
June II, 1878, and homestead entry for
the hf of said sw or, on the same day.
The tracts are double-minimum land,
and patent has been issued and been de-
livered to Lessinger for the e hf of said
sw or. AS title to this tract is now in
Lessinger and not in the government,
the latter can exercise no further control
over it, and his cash entry therefore can
not be cancelled. Nor can Lessinger re-
ceive any benefit from the act Of March
8, 1879, go Stat. 472) for the reason stat
ed by you.
The act of May 27, 1878, go Stat 63)
authorizes person who has made set
tlement under the pre-emption laws, and
subsequently to such settlement has
changed his filing for homestead entry
upon the same tract OF land, to have the
time required to perfect his title under
the homestead laws, computed from the
date of his original settlement, made be-
fore or after the passage OF the act, sub
ject to all the provisions OF the law re-
lating to homesteads. Lessinger asks,
in case he cannot be permitted to extend
his homestead claim over the patented
tract and have his pre-emption entry can
celled, that he be permitted TO claim set
tlement upon the eighty acres embraced
in his homestead, as Of the date Of his
original filing, and be allowed the time
in computing the five years of required
residence and cultivation.
This in my Judgment cannot be done.
In his final proof and entry Of eighty
acres under the pre-emption law, he in
cluded his residence and used his pre-
emption right on that tract and aban-
doned it as to other land; and it makes
no difference that he might have includ-
ed the whole tract in his claim and
paid for it under the pre-emption law.
He elected to take the eighty acres. Sec
tion 2261 of the Revised Statutes de-
clares that "no person shall be entitled
to more than one pre-emptive right"
Having used this pre-emptive right and
eonsummated title, he had no other set
tlement right un der the pre-emption
law. He did not actually reside on the
eighty acres dropped from his pre-. emp
ton claim, but used his residence for the
purposes for his pre-emptioD entry on
the eighty paid for. Consequently he
has no. residence antecedent to his home
stead entry to include with the subse-
guent residence in the period which he
will be required to prove before acquir-
ing title, and his application must be re-
jected.
Your decision is affirmed.
s. J. KIRKwooD, Secretary.