The Black Hills union. [volume] (Rapid City, Pennington County, Dakota [S.D.]) 1889-1904, 1891-12-18
An important Decision.

An Important Decision.
The following decision from the gen
eral land Office will be Of interest to
many OF our readers, especially in the
vecnity OF Biackhawk. The case ex-
cited much interest at the time. The
decision is favorable to the bona fide
4 settler:
i DEPARTMENT OF, THE INTERIOR, General
land office, Washington, D. G. Dec, 10
1891.
United States Pre-; c. E. No.
Frank S Macomber. Rapid City series.
Register and Receiver, Rapid City, SD.
Gentlemen
By letter OF May 15, 1890, you trans
mitted to this office the record in the
above entitled case. +
1t appears that Frank S. Macomber,
the defendant herein, made Pre-. G. E..
No. 2782 August "a, 1889, for the swAA,
swA, sec. 2, the sK, SEX sec. 3, and the
neA, neA sec. 10, T. In, R. 6 e., based
on D. s. filed August 80, 1883, alleging
settlement August 2, 1888.
October 3, 1889, said entry was held
for cancellation upon the report OF
Special Agent Geo. C. Smith to the effect
that the final proof submitted by said
claiment in support OF his ID. S. filing
was false, and his entry was fraudulent,
he having never resided on said land.
December 2, 1880, a hearing was
ordered, on the application OF said en-
trymen, and was held at your Office
March IL, 1890, the Government APP
pearing thereat by said special agent
and the defendant by his attorney, W..
L. Coad. After consideration the testi-
mony then and there submitted you
rendered ii joint opinion april s, 1890,
in which you found that the charges
| against said entry were fully sustained
by the facts disclosed at the hearing and
consequently 'scould not reccomend the
approval OF this cash entry Without
indicating what further action should be
taken, you add that this office would
be merciful and the claiment lucky" if he
| should be allowed further time to show
full compliance with the law.
1t does not appear that the claimant
| has taken any notice OF your decision.
His attorney was duly advised, thereof,
| but no appeal taken from your findings
or application for the relief which you
suggest might be extended to him. The
time has now expired in which he might
have been permitted to submit new
proof and as he relies, apparently, on
the evidence furnished at the hearing the
case will now be examined and decided
on its MERITS,
One OF the charges in this case vas the
meagerness OF Improvements and the
great disparity between their true value
and the value which wae placed Oh them
in the final proof. This being a trial de
noyo, it is not material what state
| ments were made in the final proof Or
how they differ from the evidence at the
hearing The latter is all that can be
considered and il it shows satisfactory
improvements, as 1t clearly does in this
case, this particular charge must be dis
missed. The improvements on the land
in question at the time OF final proof
| appear to have been quite substantial
and valuable, but the more essential
and imperative requirement OF the law,
prescribing the period and character OF
| residence on u PFC emptiOn claim, seems
| to nave been entirely disregarded.
1t is clearly shown by the evidence
that during the time covered by claim
ants final proof he was an actual and
| legal resident OF the town OF Black Hawk
in Meade county; that the house which
| he caused to be built on said land and
which he testified was his residence, was
| not. erected until July and that his
| final proof was made in the following
month OF August, and that his occupan-
| cy OF said house was mere pretence.
He came to said house once or twice Il
| week and returned to town early the
next morning to attend to his important
and multifarious duties to which he de-
voted all his time. He was deputy post
master, station agent and telegraph
operator, for the railroad, agent OF the
express company and justice OF the peace
for Meade county at the time and long
before making said entry. He qualified
as justice OF the peace May 81, 1889, for
Meade county, while his pre-emption
claim was in another (Pennington)
county. In his Official bond OF that
date he is described rs ':of the county OF
Meade" etc. The town OF Black Hawk,
where he lived and attended to all OF his
official and other duties is shown in the
| testimony. to be or 8 miles from the
land in question and it is further shown
that he never neglected and OF his said
duties in town in visiting his claim. He
owned horse on which he occasionally
rode to the land late in the evening, and
returnedearly the following morning, 1t
cannot be seriously contended that this
constituted residence on the land, es-
pecially in view OF the testimony that
he was, during the entire period, from
his filing to his entry. an actual and an
official resident OF Black Hawk,
An attempt is made by claimants
council to sustain this entry by citing a
number Of departmental decisions. 1t
is very true that much leniency has been
extended to bona fide settlers who were
seeking, under adverse circumstances,
to acquire homes on public lands, but
there is no precedent or rational con-
struction Of the law which would cure
the entry in question. The claimant
meyer established a residence on
his claim. He did not abandon
or discontinue his residence In the
town Of Black Hawk. His legal and
4 Ipan, ft,>vY