The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1892-12-16
ADDITIONAL HOMESTEAD
"A Decision Concerning q Soldiers
Power to Assign His
Right
Judge Buck Differs From the Rul-
ings Of the Interior
Department.
NJ Holds That Congress Did Not Intend to
Place Any Inhibition on
the Right.

An importaut decision was made yester-
day in the district court by Judge Buck IN
the case Of Deegan Va. Bradford ct oil. which
IA on trial. 1t Ia upon the right OF q soldier
30 assign his additional homestead right.
q question of great interest IN tne norsh-
west and one upon which the courts diner.
ssIn this action - says Judge Buck. ~ 10
expedienA for the purpose OF setting any
Issues to be tried. that the cours should
pass upon the question of the ~assignahillty
Of a soldiers additional homestead right.
The authorities presented are fatty contra
dictory. The courts OF Arkansas and Wash-
inpton hold that such a right is not assign
able, being purely PERSONAL; and TO this
Wow the department. of the interior ndheres
In decisions rendered by Secretary Villas
and Secretary Noble. On the other hand
The supreme courts OF California. Minne-
sofa. Wisconsin, and one of the circuis
courts OF the United States, Brewer.
j., are clearly OF she opinion snes
the right Ia ~assignable. All Of the courts
ueem. tacitly at least. to concur In the
opinion that after the original holder OF
such a right has located an additional
homestead be may dispose OF the came be-
fore the issuance of a patent and that ac-
tual residence ON the land embraced therein
is not required by Law.
s.The right to make an additional entsy
nv a soldier who has located q homestead OF
less than 160 acres was given by the acts OF
congress of April 4. 1872. june 8, 1872. and
March 8, 1873. See sections 2304 TO 2309. in
elusive. United States Revised Statutes. At
frst the right applied only to land con-
tipuous TO an original homestead entry
made by q soldier, and settlement was re-
CURED. Afterwards the right was made
applicable to public land mos contiguous
and the condition of settlement wae neccs-
sariiy eliminated from the law.
IF then under the law q soldier who had
originally settled upon and located q home
stead of less than 160 acres could acquire
title TO the difference between his hrst on
try and l60 acres. BY simply entering the
same at any land office. on any public land.
Ia the reasoning sound which requires of
him an entry for his own exclusive use and
benefit? II the requirement. OF an actual
settlement is dispensed with, is not the sol
dier's additional right at once detached
general policy of the United States govern
ment in respect to the same? What inter
ess Of the government would suffer If A. a
soldier, the original holder OF the right,
instead of making an entry for his Own
tperhaps momentarily) exclusive use and
nenouVs bIAu9I6TEeA lac pIAVlkok0 eO " 2
purchaser of the same? l fail to see.
..The secretaries of the interior in pass
ing upon this question seem to have biindly
followed the rulings announced in depart
msnt circulars Of previous years; and the
opinions by the supreme courts OF Arksn-
sas and Washington on the proposition.
particularly when compared to those or
California, Minnesota and Wisoonsin-do
not impress me rs logical.
ITO the argument that a construction of
these soldiers additional homestead laws
by the United States land department for a
number Of years should be entitled to great
weight, may be aptly urged that the con-
~struction of them by the people of the
United States at large for the same period
shuld also be entitled to great weight. And
during a period Of twenty years these sol
dier's additional rights have been bought
and sold. and innurnerable tracts OF lan
located under them, upon some OF which
even cities have been built, with NO iuten-
tion to defraud the government or anyone
else.
II am Of the opinion that it was the in.
scntion of congress to donate these rights
for services performed, with no inhibition
upon their assignability. To hold other.
wise strikes me as a refinement of subtletJ
intolerable to the practical common sense
of the law. Having disposed of this ques
tion, the determination of the demurrer te
plaintiffs complaint Is not difficult. TIT
complaint 10 ambiguous, lnasmEch as i
seeks to hold defendants as trustees of the
land in controversy, and at the Same time
announces that plaintiff relies upon a lega
title derived from a quit claim deed exc
euted by the original holder of the soldier
additional right to plaintiff.
It contains q misjoinder of actions for the
reasons above given. 1t is doubtful whether
IL states any cause of action at all. Tn
pleading of the state of alleged facts upor
which plaintiff relies to have defendant
declared trustees. is not sufficiently full
The complaints also fails to state a cause o
action for quieting title. AS TO the si1tl
and seventh grounds of demurrer, o de
cision is unnecessary at the present stage o
the case"
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