The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1892-11-01
his RESIDENCE NOT LOST.
n Important Land Decision by the
Assistant Secretary Of the
Interior.
Gives the Heirs OF DIR. Benj.
@. Brooke 100 Choice
Acres.
n Claim Because OF Iii Health
Cannot He Construed Into nm Aban-
danment of 1t.

leaving a Claim Because OF Iii Health
Cannot He Construed Into mn Adam
danment of 1t.
A decision by First Assistant Secretary
George Chandler, of the interior depart
nent. has been received at the Helena land
office in the case Of Edward Jordan against
BENZ. G. Brooke. The land involved Ia 100
acres within a mile and a half Of the town
tito of Helena, and is very valuable prop
srty. The principle set forth In the opin-
on Ia of great general interest, as affecting
he question Of actual residence. The late
DR.. Benjamin G. Brooke settled on the land
On May 20, 1883, and made homestead entry
Tune II following, and commuted to a cash
entry Jan. 6, 1885. Edward Jordan filed a
protest July "a. 1887, against the granting
Of a patent to Brooke. ON the ground that
he land was mineral and not agricultural.
After a hearing the register decided that
he allegations In the protest had not been
established and recommended that IT be
dismissed. subsequently the receiver rem
dered a decision in which he concurred with
the register in finding that the land was
not mineral, but held that Brooke had not
complied with the law in the matter of resi-
entry be cancelled.
From the evidence in the case ii appears
that DR.. Brooke and his family had re-
eideG in Helena several years. In the
spring of 1883 it became necessary for his
wife to receive medical attendance. such as
could not be obtained in q new country, and
for that purpose she went to the states, &C.
companied by her children. Their house
in Helena was given Up and rented. This
was in May, 1889. The latter part of May
or the fore part of June of that year, DIR.
Brooke had a house built upon the land in
question. 1t was furnished and he moved
his clothing there and resided in the house
from some time in June to the latter part
of October, 1888. II b became necessary
for him to submit to q very serious surgi-
cal operation, and for that purpose he went
to Kansas City, Mo-, whore his wife and
children already were. The operation was
performed. bus he was obliged to remain
in Kansas City for several months, being
confined to his bed. visited daily by physi-
clans and surgeons, and nursed and at
tended by his wife. In the shring of 1884
the family returned to Helena. the
doctor making the journey mostly on
a couch. II was predicted that he
would not live to reach his journeys end.
As soon as they could get possession of
their house in Helena they removed to it.
The doctor was confined to his bed or room
for several months. and when he got able
and went to the land in question, he found
no trace of the house which he had left
there in the fall of 1883. In course of time
he went to the local land office and ex-
planned to the register and receiver the cir
cumstances of the case, and they advised
him to commute bis entry. This he did.
In the spring of 1886 the doctor and his
wife were divorced. She continued to live
in the family residence in Helena, and a
new house was built upon the land in ques-
tion. larger and better than the one erected
there in 1883. The doctor had several
acres of the land cultivated and raised OK
cellent crops of potatoes and turnlps. Id
also had the whole tract fenced. ex spending
He was living in the house at the time OF
the initiation of the contest, and his ex-
penditures for fencing and other improve
ments at that time amounted to fully
ST., 900.
All these statements were testified to by
DR.. Brooke, and none of them were seri-
ously controverted, except those in refer
ence to his residence upon the land in 1883.
Jordan and his witnesses thought that il
Brooke had lived there. as testified to by
himself, they would have known it. and al
they did not see him living there, but fire.
tive that his residence WAS in Helena ano
not upon the land in question. On this
point the assistant secretary says: "IE
land is only a mile and a half from Helena,
and as the doctor was engaged in the prac-
tice of his profession, the fact that he was
sarily incompatible with a residence
thereon. 1t is necessary to determine :his
case upon the record as made up on the
hearing before the local officers. From
that record l have already found thai
Brooke established his residence upon the
land in the early part of the suInIne. o!
1882. 1t is nowhere denied that it was nee.
essary for him to have n very dangerous
operation performed in the fall or winter o,
that year, M to do SO it WAS necessary foi
him to leave the land.
while he was thus absent having tn,
operation performed and recovering from
its effects. was he oonstructively residin,
upon the land? In the case of Alfred M
Smith it was held that after u bona tid,
Residence is established, temporary alb
sences. caused by the i'll health of the set.
tier, do not interrupt the continuity OF TIL,
residence. In the case of Patrick Manning
it was held that residence Oh land anc
presence thereon are not synonymous o.
convertible phrases: that actual presence OF
the land is necessary in the first instance il
order to acquire residence, as the entrymal
must go on the land for that purposes; bu
continuous presence thereafter is not essen
tial to the continuity of residence once es
tablished. Residence having been once es,
tablished, subsequent absences for a put
pose which the law recognizes as a sufficien
cause, does not indicate an intent Il
abandon. and without such intent the lega
continuity of the residence is not broken
az, in such case, the act and intent mus
concur.
"In the case at bar. Brooke ~testifes tina
he made entry for the land in good faitl
for the purpose of making his hom'
thereon; that he established his residence
there with that object in view, and resided
there until sickness obliged him to leave
In the case of Edward j. Doyle it was sale
that the purpose of the departmental Iul,
requiring six months actual residence wa
to secure an assurance of good faith on tn,
part OF the pre-emptor, but where goo,
faith was otherwise sufficiently established
the object Of the rule is attained. md u lit
eral compliance herewith is not necessary
] think the good faith of Brooke is thor
oughly established in this case, even if /
could not be held that this occupancy wa
sufficient to entitle him to make entry 70
the land. Under the circumstances of tn,
case and the decisions cited, / have no hest
fancy in finding his actual and constructive
residence sufficient to Justify his entry.
Ali, n.a AhA - 1---lA L--I.