CONTEST-TOWNSITE CLAIM-SUCCESSFUL CONTESTANT.

BRUMMETT v. WINFIELD.

A pending townsite claim, under which final proof has been submitted that estab lishes the right of entry, is properly the subject of a contest; and one who successfully attacks such claim, and pays the costs of the proceedings, is entitled to a preferred right of entry.

The period within which a successful contestant is required to assert his preferred right of entry does not begin to run until he is notified of such right.

An occupant of a town lot within an abandoned townsite claim acquires no right by his occupancy that will defeat the preferred right of one who successfully contests the townsite claim; nor will the homestead application of such occupant, tendered during the pendency of said contest, operate as a bar to the exercise of the contestant's preferred right.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) June 23, 1899.

(F. W. C.)

Alonzo Brummett has appealed from your office decision of August 20, 1898, according to Martin Winfield the right to make additional entry, under section six of the act of March 2, 1889 (25 Stat., 854), of the E. of the SE. of Sec. 32, T. 26 N., R. 3 W., Enid land district, Oklahoma, and rejecting his, Brummett's, claimed right to make entry of said land.

This tract was formerly included in the application, made on November 24, 1893, by D. B. Madden, as probate judge for "L" county, Oklahoma, for townsite purposes, under which proof was made on January 6, 1894, the time appointed therefor. On March 24, 1894, your office rejected the application, which was made on account of McCordia townsite, for want of authority in said probate judge to make the entry as applied for. It was held in said decision, however, that the conditions surrounding the town

are so in conformity with the requirements of the act of May 14, 1890, as to justify its entry as a townsite under that act, and therefore the trustees of the townsite board No. 12, Round Pond, will be instructed to make entry of said town of McCordia pursuant to said act.

Said townsite board was so instructed, and on April 3, 1894, filed its application to make entry of the land here in question, and later offered final proof, when C. W. Humphrey filed a protest charging that the entry was sought for speculative purposes.

The hearing was proceeded with under said protest, and upon the ter mination thereof the board moved to dismiss the protest, the record being transmitted to your office, where the matter was considered in your office decision of October 20, 1894, which dismissed Humphrey's protest. He subsequently attempted to appeal, which appeal was disallowed because filed out of time; whereupon he applied to the Department for a writ of certiorari, which was denied April 13, 1895.

The final proof offered by said townsite board showed that the land had been surveyed into lots, was used and occupied for townsite pur

poses, and had seventeen houses "built or being built for occupancy and residence," and nine mercantile buildings, all valued at $4,300; that there were fifteen inhabitants upon the land included in the townsite, and that there were about thirty-five other lot claimants; further, that the land had been occupied as a townsite since October 13, 1893. February 10, 1895, Alonzo Brummett filed an affidavit of protest, in the nature of a contest, alleging abandonment of the town by the settlers; that there were only ten houses on the land, all of which had been abandoned since the date of final proof except one occupied as a store, the proprietor of which together with two other parties, were all the residents upon the townsite; and that these parties had informed affiant that they would remove from the land within thirty days from the date of his affidavit. He therefore asked for a hearing to determine the status of the land and for preference right to enter it as a homestead. Upon his application hearing was ordered and had, the full expenses of the hearing being borne by him, and upon the record made decision was rendered in favor of contestant, Brummett, it being held that the townsite had been abandoned by the former settlers thereon. Subsequently to the closing of the hearing a motion was filed by Martin Winfield and others to reopen the case; which was denied by the local officers.

Winfield was one of the witnesses offered by the townsite board, upon the hearing had upon Brummett's charge of abandonment, and in his testimony he states that he owned a store situated upon one of the lots within the townsite and that he and his family, consisting generally of about three members, were the only persons residing upon the land; that he claimed this lot as an occupant under the townsite laws; that he began a mercantile business upon the land in March, 1895, the stock carried by him being valued at from one hundred to one hundred and fifty dollars; and that he plowed and cropped the town park, consisting of about eight acres, together with other portions of the tract included within the townsite application.

The evidence further discloses that the protestant, Brummett, and his father signed a petition to the county judge requesting him to enter this land for townsite purposes; that there was, prior to the filing of this protest, a so-called townsite organization, of which protestant's father was a member, which issued lot certificates to lot applicants for a consideration; that protestant's father had been looking after protestant's interest in this protest; and that the father sold the son's building that was upon a lot within the townsite at the time this protest was filed, which building has since been removed.

Upon a consideration of the entire record made at the hearing, the local officers recommended the rejection of the townsite application and that Alonzo Brummett be allowed a preferred right of entry, "subject to the right of Martin Winfield to make entry for the technical subdivision of said tract upon which he has settled."

An appeal was filed from the decision of the local office, the ques tions presented thereby being passed upon by your office decision of May 29, 1896, in which it was held that

While this land may have been built upon for purposes of business and trade, it is evident that it has since been abandoned for such purposes by all persons except M. Winfield, and there is no evidence to warrant the belief that it will ever become so extensive, or that the conditions surrounding the land are such as to invite the competition and settlement of others to an extent to ever become a municipality. Before it can be entered as a townsite it must be raised above the dignity of a mere homestead settlement.

Whatever rights Winfield or Brummett may have in and to the land, will not be determined until they assert them by application for it.

The proof submitted by the townsite board was therefore rejected and the application to enter the land for townsite purposes was dismissed. From said decision an appeal was taken to this Department, the same being considered in decision of May 22, 1897 (24 L. D., 468), in which the decision of your office was affirmed.

It now appears that following the decision of your office upon the case arising upon Brummett's contest, to-wit, on June 4, 1896, Brummett, evidently acting under the holding made in your office decision, tendered a homestead application for this land, accompanying the same by the required fees and commissions. This application was received by the local officers and suspended to await the result of the case arising upon Brummett's protest against the acceptance of the proof offered on behalf of the townsite.

After the departmental decision of May 22, 1897, supra, to-wit, on June 2, 1897, Martin Winfield filed in the local office an application to make entry of the tract here involved under the provisions of the act of March 2, 1889, supra, as additional to his homestead entry made December 5, 1893, covering lots 3, 4, and 12, Sec. 4, and lots 6 and 7, Sec. 5, T. 125 N., R. 3 W. In his papers the tract applied for was described as range 3 "east," instead of range 3 "west," but the circumstances of the case clearly indicate that the mistake in description was a mere clerical inadvertence, and the action of your office so treating the matter is sustained.

In support of this application Winfield stated that at the time he made his said entry of December 5, 1893, he desired to include within that entry the land here in question but was not allowed to do so because it was embraced in the pending application of the townsite of McCordia; that he was still the owner of the land embraced in his former homestead, and that on February 5, 1895, he removed therefrom to the land here in question, where he still resides, and that his improvements thereon are of the value of $300.

Said application and the showing filed in support of it were forwarded by the local officers without action, but the same were returned by your office letter of June 18, 1897, and by letter of June 23, 1897, the local officers retransmitted the application, recommending that

Winfield's application to make entry of the land here in question be not allowed, because the showing filed in support thereof, namely, that he was not permitted to include it within his original entry, was not deemed sufficient to authorize the allowance of the additional entry as applied for.

By letter of October 6, 1897, the register transmitted a protest by Alonzo Brummett, filed on the preceding day, in which he protested against the allowance of the application by Winfield to make additional entry of the tract here in question. In said protest he recited the history of the case arising upon his protest against the application made by the townsite board, and stated that he had, on June 4, 1896, tendered homestead application for the land, which had been suspended to await the result of the proceedings upon said protest; that he had not been notified of the action of your office in closing the case arising upon said protest; and that the land here in question is not contiguous to the land included in Winfield's former homestead entry. He therefore asked that Winfield's application be denied, for the following reasons:

First. That it is in conflict with protestant's preference right earned by his contest against the townsite application.

Second. That the land is segregated by protestant's suspended homestead application.

Third. That Winfield can not base a homestead right upon a settlement for townsite purposes.

With said protest the local officers forwarded Brummett's application, filed on June 4, 1896; also a motion filed by Brummett July 15, 1897, offering to complete said application and asking that the same be placed of record, and filing therewith his homestead affidavit showing his qualification as a homesteader on that date. On said motion was a note by the register to the effect that no action could be taken thereon because the case arising upon Brummett's protest against the townsite application was then pending before the Department.

These several applications were considered in your office decision of August 20, 1898, appealed from, in which it was held that under the instructions of March 25, 1897 (25 L. D., 61), based on the decision in the case of Cowles v. Huff et al. (24 L. D., 81), the local officers should not have received the application of Brummett while his contest against the townsite application was pending and that no rights, inchoate or otherwise, could attach under said application or under the motion. filed on June 15, 1897, to complete the same. It was further held that during the thirty days succeeding the date of the final termination of said contest Brummett made no effort to exercise the preference right of a contestant, and any rights which he may have acquired under his contest are lost.

In considering the application by Winfield it was held that, as his original entry was made subsequently to the date of the act of March 2, 1889, supra, under departmental decision in Nancy A. Stinson (25 L. D., 113) he should not be held to have exhausted his rights under

section six of said act, and the local officers were therefore directed, upon amendment of the application, to allow the same to go of record under said section six, if no other objection appeared thereto.

From said decision Brummett has appealed to this Department. Your office decision while not directly according Brummett a preferred right of entry by reason of said contest, notes the fact that "during the thirty days succeeding the date of the final termination of said contest, Brummett made no effort to exercise the preferred right of a contestant," and holds that "any rights which he may have acquired under his contest are lost."

It is true that at the time Brummett filed his protest or contest against the townsite application it had not yet passed to entry. Proof had been made thereon however, after notice, which appears to have shown such a condition then existing as to warrant entry. Brummett's protest rested upon abandonment after final proof.

During the pendency of said proof the townsite claim had the same operative effect as an entry. In fact the townsite had then entitled itself to entry.

A contest was had to clear the record of the townsite claim, and as Brummett furnished the information and paid the costs of the hearing he is entitled to a preferred right of entry as a successful contestant, under the rulings of the Department.

In Olmstead v. Johnson (17 L. D., 151), a preferred right of entry was accorded the successful contestant of a timber-land entry, and therein it was said:

Thereupon you rendered your said decision of April 23, 1892, whereby you held that Olmstead, by reason of his successful contest was entitled to a preference right of entry.

You accordingly allowed Olmstead's statement and held that of Johnson for cancellation. From this judgment Johnson appeals here and alleges that no mention of the timber land entries being made in the act of May 14, 1880, conferring for the period of thirty days a preference right of entry upon successful contestants who have procured the cancellation of any pre-emption, homestead or timber-culture entry,' Olmstead acquired no such right and that consequently Johnson's statement being first in point of time should prevail.

This contention is without force. In the case of Fraser . Ringgold (3 L. D., 69), it has been held that a successful contestant against a desert land entry was entitled to a preference right of entry under the act of May 14, 1880, inasmuch as said law is remedial and this class of entries, if not embraced by the letter are within the reason and purpose of the statute.' This ruling has been uniformly followed and as you have well held, 'the same reasons for giving the successful contestant of a coal land entry, a desert land entry, and swamp land selection the preference right of entry will apply in the case of a timber land entry.'

From the record before this Department it does not appear that Brummett was ever notified of the closing of the case arising upon his charge of abandonment, or of his preferred right of entry. It does not appear, therefore, from the record transmitted, that "any rights which he may have acquired under his contest are lost."