delivered the opinion of the court.
The questions raised by this demurrer will be treated in their order.
1. Had the lower court jurisdiction of the subject-matter? The complaint alleges the necessary qualifications *577ox the appellant as a homesteader under the federal laws and his settlement upon and improvement of lands and personal occupation thereof to a certain time, his absence from that time, and the reason therefor, together with his intention of claiming the lands under the homestead laws when surveyed, the unlawful entry of the respondents during his absence, and their refusal to vacate, and his inability to comply with the homestead laws and protect his rights of settlement and improvements made thereunder, because of the acts of respondents, and also the absence of rights on the part of respondents. The act of Congress of May 14, 1880, c. 89, § 3, 21 Stat. U. S. 140,141 (U. S. Comp. St. 1902, p. 1393, 6 Fed. Stat. Ann. 300, 301), provides:
“ That any settler who has settled, or who shall hereafter settle, on any of the public lands of the United States, whether surveyed or unsurveyed, with the intention of claiming the same under the homestead laws, shall be allowed the same time to file his homestead application and perfect his original entry in the United States land office as is now allowed to settlers under the pre-emption laws to put their claims on record, and his right shall relate back to the date of settlement, the same as if he settled under the pre-emption laws.”
Under this section any person qualified to acquire lands under the federal homestead law can lawfully settle upon unsurveyed public lands, and, if such settlement is made with the intention of claiming the lands under such homestead law, such settler acquires a prior right to file upon the same in the local land office when surveyed. This prior right carries with it the right to the possession of the land settled upon, and such a settler will be protected in his right of possession when unlawfully disturbed by another. See Kalyton v. Kalyton, 45 Or. 116—130 (74 Pac. 491, 78 Pac. 332), where this is declared to be the settled rule in this State, and where the authorities therefor are cited. *578The subject-matter of this suit is the right to the possession of the land claimed, the legal title to which iá in the government, the appellant’s only title being the equitable right to its possession for the purpose of acquiring the legal title; hence, under the doctrine above mentioned, the court had jurisdiction of the subject-matter. The respondents, however, claim that this case comes within the rule declared in Frink v. Thomas, 20 Or. 265 (25 Pac. 717, 12 L. R. A. 239), which holds that, where a controversy between claimants to public lands is pending before the Land Department of the United States, a court of equity will not undertake to inquire into the question as to who has the better right to the lands under the provisions of the land laws of the government prior to the final determination of the cause in the Land Department. It does not appear from the record in this case that such controversy is pending before the Land Department. On the contrarjq the land appears to be unsurveyed, and the Land Department has never yet acquired any jurisdiction thereof as between these litigants; therefore the rule invoked does not apply to the case at bar.
2. Does the complaint state facts sufficient to constitute a cause of suit? The respondents contend that the allegation in the complaint regarding the conviction and confinement of the appellant in the penitentiary negatives whatever rights he may have as shown by the other allegations in the complaint, and that such conviction and confinement, are, as a matter of law, an abandonment of his rights to the lands in controversy ; and in support of their contention that the voluntary commission of a crime, followed by conviction and confinement in the penitentiary, is in effect an abandonment, cite the case of Gorey v. Brew, 12 Land Dec. Dep. Int. 239. This case, however, differs greatly from the one at bar. Brew filed a homestead entry, hut never established any residence thereon, and within *579the time for go doing was convicted and sentenced to the penitentiary for a period of six years. Some two years afterward Gore instituted a contest on the ground of abandonment, and the Land Department held that, Brew never having established a residence on the land, his residence after his sentence is presumed, in contemplation of the law, to have remained where it was at the time of his arrest and conviction. In the decision of this case the Assistant Secretary stated : “It is not parallel with the case of Anderson v. Anderson, 5 Land Dec. Dep. Int. 6,” in which the decision was rendered by Secretary Lamar, who was after-wards a.n associate justice of the Supreme Court of the "United States, and in which he said: “While it is true that residence under the homestead law must be continuous and personal, it is also true that residence once established can be changed only when the act and intention of the settler unite to effect such a change.” Anderson had settled on the tract in controversy some 10 or 12 years prior to the contest, which was in 1883, and had continuously resided there with his family until February, 1882, when he was arrested, and afterwards convicted and committed to the penitentiary for life. His claim was then contested on the ground of abandonment, but the contest was dismissed, and the honorable secretary, in speaking of this matter, said: “Anderson had lived on this tract ior many years, and up to the date of his arrest had complied with the requirements of the law as to residence and cultivation. His absence from the land since that date is by judicial compulsion, which would certainly be a valid excuse for temporary absence.”
The distinction apparently made by the Land Department in those cases arises from actual residence. If, prior to the establishment of actual residence upon the land by the settler, he is prevented from establishing such residence by his own voluntary act, even though it be the com*580mission of a crime which results in his enforced incarceration, an abandonment follows as a matter of law ; but, if the settler has established an actual residence and made-improvements upon the land, then his removal therefrom and enforced absence by reason of conviction for crime-will not work an abandonment. The reason for this latter rule is doubtless twofold : First, that residence and abandonment are each determined in part by intention, and it cannot be said that the enforced absence of a settler by compulsion of the law from his established residence-carries with it the intention to establish a home in the-place of his confinement or the intention to abandon that, from which he has been unwillingly removed. Secondly,, that abandonment is something more.than the relinquishment of possession. It must be the voluntary relinquishment of possession united with an intention to abandon: 1 Cyc. 6; Dodge v. Marden, 7 Or. 457—460; Hindman v. Rizor, 21 Or. 112-119 (27 Pac. 13). We therefore hold that-the mere allegation in the complaint of the conviction and confinement of the appellant in the penitentiary is not as-a matter of law an abandonment of his rights to the lands in controversy.
The decree of the lower court will therefore be reversed, and the cause remanded for such further proceedings, not. inconsistent with this opinion, as may be proper.
Reversed.