The L'Anse sentinel. (L'Anse, L.S., Mich.) 18??-current, 1891-09-05

to The actual settler on the land az
against one who had merely offered TO
enter without pei forming any act OF
settlement in connection with the parti-
cnlar land applied for, Arndt, it
seems, never settled upon tho land. and
the only claim he makes to the same is
based on his naked application to enter
az an additional homestead.
This application, il has been seen,
was originally made at time when the
land applied for was within tho indem-
nifty limits of the railroad company and
was very properly rejected by your
Office for this reason.
At that time, 1884, you had no au-
thonty to allow any filing or entry for
the land withdrawn, and while Arendt
took an appeal from your action reject
ing his application, yet. / hold he had
no rights by reason thereof that were
bound to be respected in the presence
Of the actual settlement made by Gam
eron by the express permission OF the
honorable secretary. Before Arendt
could renew his application or make
another one under the law, a portion of
the land was actually settled by Gamer
on, in conformity to said order. Had
Cameron or no other person settled mp
on the land prior TO October 10, 1887,
there would have been no doubt but
that the application made on behalf OF
Arendt, il legal in every other RESP 81,
would have been allowed. But as it
was, on said October III, 1887, the land
had already been legally appropriated
by Cameron, who was, at that time,
bona fide settler upon the same.
Taking into consideration the forgo-
ing am Of the opinion that Arendt
acquired no rights by virtue OF his APP
plcation Ms against the right of Gamer
Oh under his settlement claim made
Sept. l, 1887. In view of these facts so
much of Arendt's application as con-
fiicts with the SCI Sec. Is, in said
township and range, to-wit: The E1
Sch, should be cancelled.
On June 26, 1891, Arendt, Ivy J. w.
Fordney, his attorney, in fact, fled in
your office IL duly executed ielinquish-
ment (Which you forwarded TO this Office
by your letter dated June 20, 1901
whereby Fordney, ms Arendt's attorney,
relinquished MI right, title and interest
in and to the Ei Sci of said Section Is.
The conflict to theEt SEt'being removed
by the withdrawal of Arendt's claim
thereto, TINS leaving the Sci clear,
you very proper y allowed Cameron to
enter the same.
The third and remaining ground mp
on which the motion for review was
based involves two questions for con-
sideration: First, was the certificate
Of right to enter issued to Arendt in
1882 assignable prior to location?
Second, does the record show that such
assignment was made?
Counsel for Arcndt has argued at
great length in an endeavor to show
that the right conferred by Section
2,3O6, Rev. Stats, is alienable, because
~ he contends, it is valuable right of
personal property and the statute con-
tains no prohibition upon it's assign
ment. Several court decisions have
been cited in support of the above view
the case OF Mullen VS.. Wine, in the
United States circuit court for the dis
trict of Colorado (26 Fed. Rep, 206)
being the chief one in point. In the
case cited, the opinion was delivered by
Judge Brewer, now of the United
States supreme bench, wherein tire
right conferred by said Section 2306
was held to he personal property, and
hence, like all property, to be the sub
ject of sale in the absence OF any statu-
tory prohibition. In the absence of
any decision by the department upon
this question the above decision might
be claimed to be controlling; but care
full examination discloses the fact that
the department has uni ormly held that
the right to make soldiers additional
homestead entry il not assignable. 1t
IL further commended, however, that ut
date of issuance of the certificate ia
question assignment was permissible
and that the law of "Stdre decisis" is
applicable to all outstanding certif-
Gates. This contention cannot be sus.
tanned. Under direction OF depart-
mental order, dated March 10, 1877,
and commissioner instructions issued
in pursuance, thereof. May II, 1877,
the practice of certifying tight to enter
under Section 2306 prevailed until
February ID, 1888, when the practice
was discontinued. Both the depart
mental order and the commissioner
instructions heretofore referred to
authorized entry to he made by the
So'U'ct VI ny hiS ubcub VI ubCTuey
after due certification of the right and
upon proper application Mt the local
office, but Al d order and instructions
did not authorize, in any manner, the
assignment of such right or certificate.
On the contrary, in the official circu-
lars issued 10y this Office and by the de-
partment from time to time, it has
been reneatedly and expressly stated
that said right was not assignable, and
in none of such circulars, SO far rs am
advised, has it ever been suited that
tho right or certificate thereof could he
transic, red prior to location. In the
recent case of John nj. Walker ION re-
view 10 l.. d., 354, the honorable sec
rotary of the interior said: "The de-
vice Of certification was not intended to
nor di,l..it in any way authorize the sale or
transfe Of the right, but was adopted
by the department in it's efforts to pre-
vent speculation in these rights and to
secure t. the soldier the benefits of tho
law "rhe fact that the entry was al
lowed to be made by the agent or at
torney OF the party entitled, furnishes
A q Al