, 1888-09-15
A LIBERAL DECISION.

rlTSu AsSlbbdub DtCIGldly 4iuiuioN, "a
the general land office, has Just rendered
a decision in a homestead entry case that
will commend itself by It's liberality to the
people of the entire West. The case was
that of Patrick Manning, and the opinion
is addressed to Commissioner Stockslager--
Mr.. Muldrow's opinion is mainly given
in the following words The proof shows
that the claimant went upon the land IN
August, 1880, and built a house, and
during the years 18S0-l-2 he was on
the land about two or three months each
year, never being absent more than three
months at a time. and then remaining on
the land two or three weeks" and since
May, 1888, about two years and three
months before making proof, he lived
upon the land all the time. He was a
single man, with no means of living or
improving his claim except his daily labor,
and his absences during ~ISS0-Sl-S2 were
necessary 10 enable him to make a living
and improve the land. His improvements
consisted of lumber dwelling house, twelve
and one-half by sixteen feet, with one
door and one window; a stable, cellar, cor
raj, well, twenty-five acres broken, and
$40 rods of fence-of the total value of
not less than $500. He cultivated one
acre the first year, eight acres the second,
ten acres the third year, and at date of
proof had twenty acres under cultivation.
He has had no other home since going
upon the land in August, 1880.
The local officers accepted the proof
and issued final certificate Aug. 20, 1885.
Your Office held the proof insufficient,
mainly on the ground that residence was
not established until May, 1883, the date
at which his continuous and uninterrupt-
ed presence upon the land commenced.
In this | do not concur. Residence is
established from the time the settler goes
upon the land with the bona fde inten-
ton of making his home there to the ex-
clusion OF one elsewhere"
The extent and character of the claim
ants improvements, the increase each
year after the first in his acreage under
cultivation, his continuous presence upon
the land the two years and three months
preceding his proof, and the fact that he
had no other home, all combine to show
clearly that when he went upon the land
in August, 1880, and built his dwelling,
his intention was ITO make his home there
to the exclusion of one elsewhere, and,
hence, that he then established residence
upon the land. He was actually upon
the land, it is true, but a comparatively
short period of time during the first three
years. but his absences were with the in
tent of returning, and necessary to enable
him to live and to improve the land; hence,
they were not evidence of an intent to
abandon, and the residence which he had
established was not lost or forfeited by
such absences.
1t is stated as one ground of the de-
clsion of your Office that the claimants
residence" was not continuous, !"
doubtless meaning thereby that his actual
presence upon the land was not c%ontinu-
Gus. Residence on land and presence
thereon are not synonymous or convert
bic phrases. Actual presence on the land
is necessary in the frEt instance in order
to acquire residence as the entrymeD must
90 on the land for that purpose: but con
tinuous presence thereafter is not essenti-
al to the continuity of such residence once
acquired. Residence having been estab-
lished, subsequent absence amino reUerten.
d. and for a purDoEe which the law rec
oguizes as a sufficient excuse for such alb
sense, does not indicate an iutent to
abandon, and without such intent, the
legal continuity of the residence is not
broken, as, in such cases, the act and To-
tent must concur.