The L'Anse sentinel. (L'Anse, L.S., Mich.) 18??-current, 1891-02-07
EANsE, L. s, MICH, SATURDAY, FEBRUARY Z 1891.

such expenditure would be an unrelson-
able, if not harsh exaction.
| Cyr's location of his certificate on the
land had segregated it from the public
domain and Foga,tv's application to file
on it coild not be allowed until Cyrs
location had been finally declared
invalid. The question of the validity
OF Cyr's location is now before this
department in this case on his appeal
from your office decision -nbout five
years and half after the rejection of
Fogarty's applications.
IL is true that after an entry has been
allowed the entrylnan IS required to
comry with the law pendinsa u contest
of snch entry (Dsme w, Dorward . l..
ID. l0i, Swain VS. Call . ib 22,) Int as
is held by this department in the case
OF Griffin w. pettigrew, decided April
20, 1890 90 J.. ID. 5l0)? that class of
cas- is broadly distinguished" from n
case where an appl cation to make
homestead entry Is rcjec ell. 1t is true
tho pa e-emption right is based on rrior
settlement, whiio the homestead claim
ant may 'et,lc on the land either before
or after entry, and is not required to
establish residence until six months
thereafter Both classes Of clniIns are,
! however, settlement claims, the distinc-
tiun being that as to pre-emption claims
sc tlement is, stri ty speaking, condi-
ton precedent, while IA to homestead
claims, l. is condition subsequent.
1t is not denied that Fogarty Sc tied on
The land prior to his application and
to the date of his declaratory statement
as alleged therein.
By departmental regulation, q pro
emptor is required to show SIX months
continuous residence precediNg his
proof, as an evidence OF good faith, but
while his settlement must be prior to
the filing of his declarat ,ry statement.
he need not establish ac;nal resi- lence.
until after srch filing, the requirements
OF residence therefore, is as to pre-omp-
tion a, well rs homestead claims,
condition subsequent, subsequent i'll one
case, to the allowance Of tho filing, and
in tho other, to tho allowance OF the
entry"
The testimony III the case at bar
shows that Fogarty first went upon the
land Nov. z, 1854 He bnilt house
14x1S and moved into it himself. leav-
ing his family ut their residence i'm
Stambaugh, where lie was carrying on
drug business. He continued to live
on his claim at intervals and make i'm
provements until Jnne 1885, when he
and his family moved to Escanaba,
when he continued TO reside until April
1883. While he was residing in Escan-
aba ho made occasional visits to the
land but had no permanent residence
thereon.
April 10, 1883, he moved with his
family to his claim, where they have
since continued to reside am mako i'm.
proyements.
In view Of this testimony We say that
tho decision ahove referred 10 practic-
Fogarty.
But there is another question which
arises in connection with the location
m,sdc by Eliz Blake which we consider
fatal to the location.
Act OF congress approved July IL,
1854, authorizing the issue of Sioux
half breed scrip said "and provi led
further, that no transfer or conveyance
OF any of said certificates or scrip shall
be valid"
In passing on this question in the |
case Of Allen ct III, vs.. ale riD ct nj q |
l.. ID. 207) the Hon. Secretary of the |
Interior says obviously congress in |
tended to mako the scrip purely per.
sonal right In the half breed, and, while |
no restriction was put upon his power |
Of alienation of tho land when it should |
be located until that Time no other
person should have any share or inter
est III this right, nor should the half |
breed ransior to another tho privilege |
which congress Ind given him to locate |
tho land
In the same case, after discussing tho !
various circulars OF instructions issued |
under said net Of congress the secretary i
says If the regulations so laid down |
are to govern, there is no question but |
that your decision should bo affirmed.
Tho Indians had nothing to do with |
those locations. The facts were freely !
stated hy' the able counsel who orally |
argued the question involved.
They are yery simple. In every in.
stance tho hnlfbreed sold his scrip !
many years before this attempted loca- |
tion ot it aud received from the pur- |
chaser the agreed price therefor, but,
because OF the prohibition in tho act OF |
congress against transfers, the transac-
ton took the form of delivery of tho
scrip accompanied by two letters of
attorney, in printed form, duly signed |
and acknowledge, but as to the name
of the attorney AMI sometimes, il not
always as to all tho particulars Of des-
cription, left a blank; by one Of which
le ters tho attorney was authorized to
locate the scrip and do whatevsr might
be nessary for that purpose or to obtain
innen on 1ffh l,nne.l