, 1882-11-24
General Land Decisions,
WOLF vs.. STRUBLr,

Pre-emptors applying to transmute their
filings to homestead entries required 10
give notice to adverse homestead
Claimants who will be allowed to con-
test the application to transmute.
The decision in the case of Esrey VS..
Glenn (Copps l.. o., Vol. Z, p. l4Sh
will not he held to control the action
of the General Land Office
DEPARTMENT OF THE INTERIOR,
GENERAL LAND OFFICE,
WASHINGTON, ID. G., September %, 1882.
REGISTER AND RECEIVER,
Wa Keeney, Kansas:
GEyrLEMEY:--I am in receipt OF
your letter of oath ult.. reporting IN
the ease of Lille K. Wolf VS.. Alpheus
Struble, why you allowed Mrs. Wolf
to transmute her presumption tillnS
10 n homestead entry without first
giving notice to Struble and Reese,
homestead claimants to the same
land.
l find upon further investigation
of the matter that a difference in the
rulings in cases of this kind has in
adverently arisen, and thlt your ac-
tion in this case is sustained by the
later practice of this office.
1t was always held that a home
stead entry was an appropriation OF
the land; that one entry could not be
allowed over another, and, conse
quently, that in cases where an entry
was made subject to a prior pre-emp-
ton claim, the pre-emptor, in order
to transmute, must first give notice
to the homestead party in order that
the latter might show that the former
did not have a valid filing capable OF
transmutation, or had uJI CON lied
in good faith with the requirements
of the law, thereby pr 'ssrying his
own entry, which otherwise would be
Cancelled upon the allowance of the
application to transmute.
In the case of Esrey vs.. eileen
(Copp, Vol. 7, p, l4S), my predeces
sor, Mr.. Commissioner Williamson,
held that the act of May ii, 1880, the
third section of which allowed a per
son who settled upon public land
with the inttntion of claiming under
the homestead law, the same time
within which to make his homestead
entry as is allowed pre-emptors to
file their declaratory statements, in
corporated a new principle in the
homestead law; that such settler
could make his encfy notwlthstnnd-
ing the fact that the land was al
ready appropriated by another entry,
and that the rights OF tho parties
should be adjusted when either APP
plies to make final proof
After a careful examination of this
subject, am unable to concur with
the views expressed in that decision.
A homestead entry is an appropria-
ton of the land; it segregates it from
the body of public land, and removes
it from liability to any other disposi
tion. This proposition, the correct
ness of which was never disputed in
this department until the rendition of
the decision above referred to, is
forcibly presented in the opinion of
Mr.. Attorney-General MacYeagh OF
July 10, 1881. (Copp, Vol. s, p. ~
If an entry was enormously allow
ed, or conflicts with previously ac-
quired rights, it is voidable, and upon
proper showing may be set aside
and annulled.
Said decision will not, therefore, in
the future be held to control the action
Of this office.
In every case where party ap
plies to make homestead entry under
the third section of the act of May
IA, 1880, of land already appropriat-
ed by homestead entry, he will be re.
quired to give notice to the adverse
claimant and establish the priority of
his claim. If this is satisfactorily
done, the adverse claim will be can
celed and the applicant allowed TO
enter.
In cases where pre-emption claim
ants apply to transmute their filings,
they will be required to give notice
TO subsequent homestead claimants
who will be allowed to contest the
application to transmute. If the
validity of the pre-emptor's claim is
not impeached, the adverse home
stead entry will be Cancelled and the
transmutation allowed
Ia the case relative to which your
report was made, you will allow the
adverse homestead claimants, StrubIe
and Reese, sixty days within which
to show cause why their entries
should not be cancelled for conflict
with the claim OF Mrs. Wolf.
Very respectfully,
n. G. MCFARLAND,
Commissioner.