, 1882-06-23
RAMAGE vs. MALONEY.

4 notice of intention to make complete entry
on u certain day IL the beginning of proper
statuptory proceeding for making final
proof, aui one OF the connected steps OF
such proceeding.
A person may comply with the requirements
of the pre-cmption law after the expiration
of tho limitation fixed by statute If the
right o no other settler has intervened.
DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY,
WASHINGTON, d. c., April 2S, 1882.
The Commissioner Of the General Land
Office;
SIR:-I have considered the case of
peal from your decision of July 49, 1891,
allowing the latter to make proof and
payment on his pre-emption claim not
withstanding the lapse of more than
thirty-three months from his date of set
tlement, and notwithstanding the admis-
sion of timber culture application
made by Ramage before final proof and
payment by Maloney, but after he had
filed and published notice Of his inten-
ton to make such proof on day fixed
by said notice as required by Act OF
March 3, 1879, GO Stats, 472),
The tract involved is the ne or OF sec.
10, TIP. 10S, As, Tracy land district,
Minnesota, Maloney filed declaratory
statement March %, 1873, alleging set
tlement on that day, His thirty-three
months expired December %, 1881. May
2, 1881, he filed and published notice Of
his intention to make final proof on the
81 of Jude, and made proof accordingly.
May 6, 1881, Ramage made timber cul-
4 ture entry No. 1929, with full knowledge
Of the claim, settlement and notice of
Maloney.
The equities are all with the latter.
He explains his failure to make proof in
December, by reason of severe and usu-
III storms, closing the avenues of busi-
ness, and also ON account Of critical i'll
ness in his family rendering it nearly i'm
possible for him to offer proof and pay
ment at that time. He has eighty-seven
acres ia cultivation, and has maintained
continuous residence ON the land.
1t is we'll settled practice in harmony
with the decisions OF the Supreme
Court, especially in Johnson vs. Towsley.
(l3 Wall, r. that q person may comply
with the requirements Of the pre-emp-
ton law after expiration of the hmita-
ton fixed by statute, il at the date OF Of
fering such compliance the right Of no
other settler has intervened.
Had the law remained in 1878, when
Malony settled, he eould at once, on the
ID of May, 1881, when he reached the
district office, having made final proof
and payment and secured his oertifii-
cate before application on the part OF
Ramage The only question to be con
sidered is whether or not, the Act OF
1879 having required notice of not less
than thirty days, his notice Of intention
to make complete entry on certain day
thereafter could operate to save his right
for that period and prevent a third par
ty in the meantime from defeating his
claim by an application for entry.
You decide that such notice was sulfi-
cient; in effect it Was the beginning OF
the proper statuatory proceeding for
making final proof, and one of the con
nected steps OF such proceeding: that the
whole matter stands by relation tn the
original settlement right, emitting ths
claimant TO a patent to the exclusion OF
al intervening claims
/ affirm your decision. To hold con.
trary view would invite any stranger tc
the land. who might for the first time
be advised by the notice itself OF the pre-.
yious laches OF the claimant, to step in
and compel the enforcement OF a forfeit,
ure upon such technical default, al
though the Government itself, as de,
clared in Johnson VIZ Towsley, would be
unauthorized to take adyantas OF the
E,ches: and the party has already taken
steps to cure the same before any adverse
interest has been acquired or claimed,