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dated September 1, 1888, in the case of Douglas R. Campbell v. said Ricker, affirming the decision of your office, dated January 24, 1887, jecting his final proof and holding for cancellation his pre-emption declaratory statement, No. 5278, filed in the St. Cloud, Minnesota, land office, on June 25, 1885, for lots 6, 7 and 8, of Sec. 4, T. 141 N., R. 35 W. The applicant alleges that said decision is erroneous

(1) In finding from the testimony that Ricker was only making the tract an occasional and temporary habitation. (2) In holding that the evidence of residence upon, and improvement of, the land is insufficient. (3) In reciting as a material finding that "the indications are, that he was moved to file upon the land by a conviction of his own, and that of his father and associates, that it would be a good thing to secure." (4) In holding, by necessary implication, that a pre-emption claimant is precluded, by law, from settling upon and perfecting title to land, which, in his judgment, may prove to be valuable. (5) In not holding that the presumption of good faith accompanied his act in the premises, and that the burden of proof is upon contestant, and (6) In not holding that the weight of evidence failed to sustain the contest.

The record shows that Ricker filed as above stated; that said Campbell made homestead entry, No. 13,152, of the same land, on July 27, 1885; that, upon the offer of Ricker to make final proof, Campbell having protested, a hearing was had, testimony was submitted and decision of the local office was rendered, recommending the acceptance of Ricker's final proof, and the cancellation of Campbell's said entry; that a rehearing was ordered by your office, on October 13, 1886, "to determine when Ricker began an actual residence upon the land, and when and for what period he has been absent therefrom, with a view to test his bona fides in the matter;" that said rehearing was had on November 17, 1886, aud from the evidence submitted, the local officers found that Ricker had failed to show due residence upon said land, and they recommended that his filing be canceled; that your office affirmed the findings of the local officers, and, on appeal, the Department concurring in the conclusion of your office, made a formal affirmation of said decision.

The rules of this Department state, that motions for review or reconsideration "will be allowed in accordance with legal principles, applicable to motions for new trials at law." (Rule No. 76, 4 L. D., 46.)

The legal principles, applicable to the granting of new trials at law, are presumably known to counsel, and need not here be repeated. It may be observed, however, that where there is conflicting evidence, or where the circumstances are such that fair minds may reasonably draw different conclusions, a review will not be granted. Richards v. Davis (1 L. D., 111); Long v. Knotts (5 L. D., 150); Neilson v. Shaw (5 L. D., 387); Seitz v. Wallace (6 L. D., 299); Mary Campbell (8 L. D., 331); Creswell Mining Co. v. Johnson (ibid., 440).

The first two allegations of error refer to the several findings upon the weight of the evidence as to the sufficiency of the residence of Ricker upon said land, and as there was conflicting evidence it is not shown that the decisions were erroneous.

The third allegation of error is equally without foundation. It is true that the local officers and your office mention that "the indications are that he was moved to file upon the land by a conviction of his own, and that of his father and associates, that it would be a good thing to secure," but this was not given as a reason for the cancellation of the filing. The statement follows the express finding of the local officers, which was quoted in the decision of your office, that "He has, so far as we have been able to gather, no connection with parties desiring to secure this land for the value of the timber thereon." If, therefore, Ricker failed to comply with the requirements of the law, as to residence, then, having offered his final proof in the presence of an adverse claim not shown to be illegal, his filing must necessarily be canceled. Wade v. Meier (6 L. D., 308); Hults v. Leppin (7 L. D., 483).

The record also fails to sustain the fourth and fifth allegations of error. It nowhere appears, either directly or by implication, in my judg ment, that the final proof of Ricker was rejected because he settled upon land that might "prove to be valuable." Nor is it stated that the "burden of proof" was not upon the contestant.

It will be observed that the final certificate has not been issued for said land, and although the local officers at the first hearing decided in favor of Ricker, yet, at the second hearing, the decision was adverse to him, and that decision has been affirmed by your office and the Department.

The sixth specification of error, if true, would furnish no ground for review. It is not enough to allege that "the weight of evidence failed to sustain the contest," it must be shown that the conclusion is against the "palpable preponderance of the evidence." Mary Campbell, supra. This is not shown in the case at bar, and a careful examination and consideration of the whole record fails to disclose sufficient reasons for disturbing said departmental decision. The motion is therefore denied.

COMMUTATION-FINAL PROOF-RESIDENCE.

MONTGOMERY v. CURL.

Though the submission of final proof during the pendency of proceedings on appeal is irregular, such proof may be considered on final disposition of the adverse claim. Where the good faith of the settler is otherwise sufficiently established, temporary absences during any period of the inhabitancy, for the purpose of earning a living, not inconsistent with an honest intention to comply with the law, may be accounted constructive residence.

First Assistant Secretary Chandler to Acting Commissioner Stone, July

5, 1889.

I have considered the case of W. E. Montgomery v. Bertie Curl, on appeal of the latter from your office decision of March 27, 1888, holding

for cancellation her homestead entry for E., NE. and E. 1, SE. 1, Sec. 2, T. 2 S., R. 20 W., Kirwin, Kansas, land district.

It appears from the evidence that the claimant had been partly raised in the family of her husband Mr. Weeks, and that she had on the removal of his family to Kansas, remained in Iowa teaching school and that some months prior to her entry she had written to him that she had saved a little money and would like to get a homestead for herself and asked him to find one for her that when her school closed she might come out and do what might be necessary to secure her a homestead. Weeks ascertained that the party who then claimed the land in controversy would sell his relinquishment and so informed her; she then came on, purchased said relinquishment for $130 and on February 2, 1885, made homestead entry therefor. Immediately after she caused the house hereinafter described to be erected and as soon as finished established her residence therein.

She claims that she was so nearly destituté of means after paying the $130 for the relinquishment that she was compelled to do something to earn money for her support and to pay for her improvements and that in three days after commencing to reside in the house on her land she commenced to work as a clerk or saleswoman in the store of Weeks.

On August 31, she gave notice by publication of her intention to make final proof on October 19, 1885, but protest being filed by Montgomery, September 29, and affidavit of contest being filed by him October 5, the final proof was not presented.

Upon a hearing before the local office, the register and receiver decided in favor of the entry and recommended that the contest be dismissed. Your office upon appeal reversed that of the local officers and held that from the evidence it was manifest "that claimant never changed her residence from her home in Long Island, and that she is seeking title to said land under a mere pretense of compliance with law."

It appears from the evidence taken at the hearing that immediately after entry, claimant caused to be erected on said land a frame house twelve by fourteen feet, with shingle roof and board floor, which being completed about the last of March, she established her residence therein with stove, bed, and other furniture. She remained there two days and nights at this time and then went to work in the store of Mr. Weeks at the town of Long Island about two miles distant in which she was employed as a clerk.

From this time until June 21, 1885, she continued to work in the store returning to her house on the land one or more times each week, usually remaining over one or two nights at each time, and during the spring she had some ten or twelve acres of the land broken and planted to crops.

On June 21, the claimant was married to Martin Weeks, the merchant in whose store she was employed, but prior to said marriage it was agreed that she should still maintain her residence upon her homestead

and that he should remove his residence to her house on said land as soon as he could arrange matters to do so. Accordingly, immediately after the marriage he removed part of his household effects to the land and during the month of July, they both stayed on the land several nights, and were there several times in the day time, besides, but as she was still assisting him in the store, they stayed most of the time in town. In August they both stayed upon the land about as in July, but in September they only stayed two nights on the land, this fact being explained by them as being on account of the removal of the store building from the old town to the new and the doors being sprung so that they could not be shut requiring his presence, while she stayed to help cook for the hands who were at work in the removal and subsequent repairing of the building.

The house was lathed and plastered in October and while this was being done claimant remained in town with the family of her brother-inlaw, Pillsbury.

It seems to me that it is clear that the claimant established actual residence upon said land after the completion of her house in March, 1885, and that the evidence fails to show an abandonment for six months at any time, nor in fact can I conclude from the evidence that there has been any intention to abandon the land upon her part. The expendi ture of $130, by her in the purchase of the relinquishment of former claimant, the erection of a house much better than the ordinary claim. shanty, the cultivation of the land, causing a fire break to be plowed and burned around the whole claim, causing a well to be dug and preparation to plaster the house, before notice of contest, all tend to show the opposite of any intent to abandon.

It is true her absences were frequent but it seems to me they were of the character spoken of in Israel Martel (6 L. D., 566) that "where the good faith of the settler is otherwise sufficiently established, temporary absences during any period of the settlement for the purpose of earning a living, not inconsistent with an honest intention to comply with the law, will be accounted constructive residence."

I cannot, therefore, concur in the conclusion of your said decision, "that claimant never changed her residence from her home in Long Island and that she is seeking title to said land under a mere pretence of compliance with the law."

I find with the record final commutation proof of claimant submitted May 16, 1887, and certificate of final payment to the local officers upon such proof.

This action of the local officers was irregular being in violation of rule 53, of practice, which provides that,

The local officers will thereafter (after appeal) take no further action affecting the disposal of the land in contest until instructed by the Commissioner.

It was held in Marcus J. De Wolf (7 L. D., 175) that cash entries of this character are not void, although improperly allowed by the local

office and my decision being in favor of the entryman you may consider said proof if in other respects regular.

Your said office decision is accordingly reversed.

FEES ON PRE-EMPTION FINAL PROOF-REPAYMENT.

FRANK W. HULL.

The local officers are not authorized to collect fees for reducing to writing the testimony in pre-emption final proof unless such service is actually performed by

them.

There is no statutory authority for the repayment of final proof fees improperly collected and paid into the Treasury.

Secretary Noble to Acting Commissioner Stone, July 6, 1889.

By letter "M" of November 8, 1888, your office transmitted the appeal of Frank W. Hull from your decision, dated October 17, 1888, sustaining the action of the register and receiver at Pueblo, Colorado, in collecting fees for the reduction to writing of the testimony, the work having been performed by a person not in government employ.

Hull gave notice of intention to submit pre-emption proof "before the United States office, at Pueblo, Colorado, on September 13, 1888.” The subsequent proceedings are described by claimant as follows: He presented himself and witnesses at the local office on the 13th day of September, 188, and a clerk was furnished to whom he paid the sum of $4.00 for taking the evidence. He was also charged and made to pay $6.15, being 22 cents per hundred words written. The $4.00 was a private fee to the clerk who was not an employe of the government. The $6.15 went into the hands of the receiver and has been credited to the United States government for fees in reducing testimony to writing.

Claimant appealed from the action of the local officers in collecting said fee of $6.15.

The local officers in transmitting the case, say:

Pursuant to your letter "A" of January 17, 1888, this office is in the habit of allowing settlers to employ a private clerk to write final proofs but the regular government fee at rate of 224 cents per hundred words has invariably been collected and accounted for.

The proof appears on its face to have been regularly taken before the local officers.

Your said letter of January 17, 1888, referred to, to the local officers at Pueblo, is as follows:

In my letter of November 4, 1887, to Inspector Hobbs in answer to one through him from the Lamar office, as to the manner of taking final proof, the following was communicated:

"If however, the register and receiver can make any arrangement by which proofs can be written out in their presence and under their supervision and direction by persons, (other than land agents or attorneys for claimants) who are not to be paid by the government, I shall make no objection provided the proofs are properly scrutinized and examined by the local officers before acceptance, and if no abuse or cause