doers from the beginning. naked trespass where parties wrongly enclose naked trespassers, intruders and wronglarge tracts of public land. SECRETARY TELLER to Commissioner Mc Farland, May 31, 1883. In the case of John McAllen Brown vs. John Quinlan et al., I have considered the application for a re-hearing upon my decision of February 15, 1883. [10 LAND OWNER 7.] The application does not disclose any ground upon which a re-hearing can be had under the well established rules of practice. The case was fully examined, and considered upon all the grounds set forth in the application. My decision of February 15th shows that this question was fully considered by me, and the doctrine of Atherton vs. Fowler was held to apply to the case under consideration. The testimony shows that Brown cannot be classed with such persons. The application for a rehearing is denied. C. M. BIRD. The act is remedial. show cause, if any, why it should not le approved. This course will be followed in all cases of a similar nature, in order that the remedy for the evil stated may be advanced, and actual settlers secured in their rights. TIMBER CULTURE. SAMUEL M. LUCE. Amendment-Second Entry-As other citrics cover the land included by the proposed amendment of entry, the application for amendment is denied; but in view of the equities involved, the original timber culture entry is cancelled and a new one is permitted, with credit for existing payments. have to state that I am now in receipt of your letter of March 19, 1883, enclosing affidavits by Powell and Huffman protesting against the cancellation of their entries, Huffman showing improvements on his homestead to the value of more than one hundred and fifty dollars, and Powell being also an actual settler in the section. Settlement Within Toonsites.--How the rights of settlers within the incorporated limits of a city or townsite may be protected. ACTING COMMISSIONER HARRISON to Reg. and Rec, Salt Lake City, Utah, June8, 1883. (P.H.S.) In the case of C. M. Bird, pre-emption In the motion for a re-hearing some of cash entry No. 2403, embracing N. of S. the legal principles involved seem to have W. 4, Sec 14, Tp. 8 S., R. 3 W.; it appears COMMISSIONER MCFARLAND to Reg. and Rec., been misapprehended. The important from the proofs that said tract is within North Platte, Nebraska, June 11, 1883. (H. W.) legal question was whether the defendants the incorporated limits of Springville, but Referring to your letter of November could initiate valid pre-emption rights by is not settled upon, occupied or used for 23, 1882, transmitting the application of deeds of violence in breaking enclosures, purposes of trade or business. Samuel M. Luce, who made timber culture and in that manner effecting settlements Section 2258, R. S., excludes from pre-entry No. 2177, June 2, 1882, for the N. upon lands in the occupation of another. emption, lands within the limits of any in- W. 9, 16, 21 W., to amend the same so In the actions of ejectment brought by corporated town, but this provision is as to embrace in lieu thereof the N. W. Brown against the defendants in the State modified by the first section of the act of 4, Sec. 8, same township and range, and Courts, and by appeal taken to the Su- March 3, 1877,(19 stats., 292). my letter of March 2, 1883, instructing preme Court of the State, the question you to call upon Robison J. Powell, who was fully and carefully examined, and it The well known evil it was designed made T. C. entry No 2244, July 17, 1872, was held that the defendants could not ac- to meet and suppress, was, that in some for the N. E. 4, 8, 16, 21, and George W. quire pre-emption rights in the manner communities large bodies of land, much Huffman, who made homestead entry No. disclosed by the proofs, and that the cases larger than any town, under the law, could 3246, Oct. 2, 1882, for the N. W. same were in that respect ruled by the case of acquire from the government-were em-section, to show cause, if any existed,why Atherton us. Fowler (96 U. S., 513). braced within corporate limits and their Luce should not be allowed to amend his disposal to actual settlers thereby frus-entry in accordance with his application, trated. This was met by the act cited and their entries be cancelled without prewhich, while by taking care to provide for judice to their right to make new ones. I the rights and needs of cities and towns upon the public domain, provided that no incorporation should be held to exclude from pre-emption or homestead entry a greater quantity than the maximum area which a town could enter, except such portion in excess of that area as should be actually settled upon, inhabited, improved and used for business and municipal purposes. The area which a town may enter, within the maximum quantity of 2560 acres, is governed by its population. (Sec. 2289, R. S.,) and it is that area alone, that the incorporation of a town will protect. Consequently if, at the time a preemption or homestead entry is made of a tract within incorporated limits, the town is not. by reason of its population, or actual use and occupation, entitled to make entry, In both the cases of Atherton vs. Fowler such claim is within and protected by said and Hosmer vs. Wallace (97 U. S. 575), section 1. Act of March 3, 1877. Com- The year not having expired and no imparties were in possession under color of missioner's decision Sept. 30, 1880, case of provements having been made by Luce, to title of Mexican grants which had been Seattle vs. Bywater and Secretary's deci- show to subsequent claimants that the land found to be invalid or not within the con- sion affirming same. (8 COPP, 143.) was entered. I think it would be neither firmed boundaries; and in both cases the In the present case the town of Spring- just nor equitable to disturb the entries Supreme Court held that valid pre-emp-ville has made its entry and received pat- subsequently made. On the other hand tion claims could not be initiated by violat- ent, and the presumption is that its entry the tract described in Luce's entry papers, ing such possession. and patent cover all the land it is entitled in consequence of a mistake in description The case now being considered is clearly to secure title to, especially as it has failed is not the one which he contemplated, in distinguished from that of persons who to make its election, after due notice, of making the entry. To hold him to this under no color of title or right, without what lands it would retain, under section entry only would be in effect to deny him consideration or expectation of acquiring 3 of the act. But as it may be, notwith- the benefit which the law intended to contitle, take possession of large tracts of standing the contrary presumption, that fer, as it is shown that the tract described public lands for the purpose of securing the town is entitled to make an additional in his entry papers "is composed entirely the use thereof, and by enclosure and a entry under Sec. 4, you will notify the of sand hills, and is worthless for agriculforcible holding bid defiance to settlers proper authorities of Bird's entry, and ture, grazing, or cultivation of timber. and to the government. Such persons are that they will be allowed sixty days to The party's application to amend his en The facts in this case show that, at the time the defendants broke the enclosures, and made settlement by forcible means, Brown was in quiet possession of the lands and had so been in possession some twenty-five years, under color of title of a Mexican grant, which he had in good faith and for a valuable consideration, attempted to acquire, believing at the time that he was acquiring a valid and legal title. It further appeared that, upon learning that the Mexican title was invalid, he had made effort to obtain title to such lands under the relief act of July 23, 1866, and subsequently by additional homestead entries. Under the timber culture law the claimant is allowed a year within which to make improvements, and when a party finds a tract vacant and subject to entry, as shown by the records of the local land office and places his entry thereon, it would seem to be a hardship to allow another to step in subsequently, and amend his entry to cover said tract (no improvements having been made) on the plea that he intended to have entered it originally. ALONZO PHILLIPS. Notwithstanding timber culture entry by the first party was refused under the Secretary's and Commissioner's instructions, and entry afterwards was allowed by another party, such entry is canceled and the first party is permitted to make his desired entry. SECRETARY TELLER ta Commissioner McFarland, June 12, 1883. try is rejected on account of the adverse than my predecessor intended to state his I am now in receipt of the Register's claim which has attached to the tract to ruling, or than a proper construction of letter of the 22d ultimo, transmitting one which he desires to amend, and for the fur- the act of May 14, 1880, seems to me to from Bloss in which he states that he conther reason that a timber culture entry warrant. Land in this condition is, un- tested the above mentioned entries in has been made in the section. But in ac-doubtedly, in a state of reservation to the good faith for his own use and benefit, cordance with the decision of this office extent that the contestant can not be de- and not for the purpose of speculation, dated July 28, 1881, in the case of Her- prived of his preference right if he ap- and intended, in case said entries were bert H. Moody, Niobrara District, I am plies to enter it within the required time; cancelled, to enter one tract as a homeof opinion that it is competent for this of- and during this time no one else can enter stead and the other as a timber culture fice to cancel Mr. Luce's entry in view of it to his exclusion. The ruling in Eh-claim, having filed proper applications at the equitable principles involved, and per- men's case, thus construed as respects a the time he initiated the contests. mit him to make a new one with credit reservation of the land, and as I think my The purpose of the instructions of Dec. for existing payments. predecessor intended, is in harmony with 22, 1882, was to prevent speculative conmy decision of March 12, 1883, in the case tests, by restricting the number of conof Shanley vs. Moran (COPP, June 15, p 93) tests which one person could carry on at which held that during the thirty days of the same time to his qualifications for preference right allowed a contestant, the making entry of the land. As one person tract may be entered by another subject to cannot make two timber culture, nor two the right of the contestant. Under this homestead entries, it was held that he ruling, the application of Phillips should could not institute two contests in either have been allowed-if regularly made- case to avail himself of the provisions of subject to the right of Timmons; and af- the 3d section of the act of June 14, 1878, ter Timmons' waiver of his right, entry or the 2d section of the act of May 14, should have been permitted to Phillips as 1880. the first legal applicant. The only apparent defect in his application is that his affidavits are unsworn. But if, as he alleges, he tendered his oath thereto when presenting them, it was the duty of the local officers, or one of them, to have administered the oath, and he should lose nothing The tracts were formerly embraced in from their laches or refusal to do so; and the homestead entry of one Fitzpatrick, if, as he also alleges, he tendered the fees which was canceled upon proof submitted and commissions for his entry, his right by one Timmons. Timmons was notified would seem superior to that of Warren. January 20, 1882, of his preference right But, whether he did or did not follow all to enter the tracts under the act of May the details of a complete application after 14, 1880; and the local officers report being told by the district officers that his that Phillips, on applying to enter the entry could not be received, need not be tract, January 26, 1882 was informed of considered as material to the allowance of the rights of Timmons, and because his right. He had been refused, and has thereof they rejected his application. followed it by proper appeal. His entry They also state that he thereupon laid his should be admitted, and upon the allowapplication and affidavits, (all signed, but ance of the same that of Warren must be the latter not sworn to,) on their table cancelled. Your decision is reversed. and left the office, not tendering money for their fees and commissions. I have considered the appeal of Alonzo Phillips from your decision of March 11, 1882, dismissing his appeal from the rejection by the local oflicers of his application to make a timber culture entry on on the S. 3 of the S. E. and the S. of the S. W. of Sec. 26, Tp. 1 S., R. 8 W., Los Angeles, California. Phillips files affidavits to the effect that he presented his application and affidavits upon the day named, tendering his oath to the affidavits, and also twenty dollars in gold for fees and commissions, and that the officers admitted that (as was the fact,) Timmons had previously notified them verbally that he did not intend to avail himself of his preference right. Afterward, January 28. Timmons appeared at the local oflice with Charles F. Warren, and made formal waiver of his right, whereupon Warren was permitted to enter the tracts. But where a party is qualified to make both a timber culture and a homestead entry, and desires to do so, if successful in his contests, it is immaterial whether the entries he contests are both of the same character or not. It appearing that Mr. Bloss desires to make a timber culture entry and a homestead entry respectively, of the lands embraced in the timber culture entries contested by him, he will be permitted to prosecute the contests against both entries, and my letter of April 28, 1883, is modified accordingly. NELSON VS. MCLEOD. Cancellation of Homestead Entry-Immediate Timber Culture Entry Settlement -- Repayment.-A homesteader whose entry was about to be contested, relinquished and made a timber culture entry of the land. The contestant having settled upon the land prior to relinquishment is entitled to make a homestead entry. and the timber culture entry is held for cancellation with credit for fees or repayment if desired. ACTING COMMISSIONER HARRISON to Reg. and Rec., Benson, Minn., June 5, 1883. (C. H. B.) I am in receipt of your letter of May 23, 1883, transmitting papers relating to the appeal of Augustinus F. Nelson from your decision rejecting his application to enter the N. E. 32-116-46 under homestead law. MILTON F. BLOSS. Two Contests Allowed One Party.-Where a qualfied party desires to make both a homestead and a timber culture entry, he may commence contest against two timber culture entries. COMMISSIONER MCFARLAND to Reg. and Rec., Mitchell, Dakota, June 13, 1883. (C. C. N.) By my letter"C" of April 28, 1883, you were directed to advise Milton F. Bloss, that he would be allowed thirty days within which to elect as to which of the following contests he desired to prose- The facts in the case as shown by the cute to a final determination, viz.: his papers are that John McLeod made homecontest against T. C. Entry 1470 (Spring- stead entry No. 11,295, June 10, 1882, for field series), Henry Hundemer, N. W. the land described; that on March 15, 7-102-61, and the one against T. C. Entry 1472 (Springfield series), S. W. 6-102-61, Wm. Hundemer. The refusal of the local officers to ac1883, Augustinus F. Nelson executed an cept Phillips' application was in accordaffidavit of contest against said entry, ance with the strict reading of my predewhich was transmitted to your office in cessor's subsequent decision of March 13, Both these contests were initiated Jan- due time, and the application to contest 1882, in the case of William Ehmen uary 11, 1883, and the above mentioned was rejected for the reason that the afE(COPP, May, 1882), which held that dur- action was taken pursuant to the rule laid davit was not corroborated by two witing the thirty days allowed Ehmen-the down in my instructions under date of nesses as required. On April 3, 1883, successful contestant-within which he Dec. 22, 1882 (See CoPP, Vol. 9, p. 186), McLeod appeared at your office and remight enter the tract, the land was in a which was to the effect that no person linquished his homestead entry and made state of reservation, subject only to his should be allowed to contest more than timber culture entry No. 2106 for said entry." one homestead and one timber culture tract. On or about April 10, 1883, Nelentry at the same time. son filed in your office his perfected afli This expression was broader, I think pursuant to the provisions of the act of March 3, 1855 (10 Stat., 701), Register and Receiver No. 1630. davit of contest, which was returned to entry made subsequent to Nelson's actual him with the information that the home- settlement upon and improvement of the stead entry had been relinquished and the land. In the case of Shadduck vs. Horner timber culture entry made. On May 2, [Copp's L. O., vol. 6, p. 113], the Hon. Without passing at this time upon the 1883, Nelson appeared at your office and Secretary of the Interior held that "under question of how far the withdrawal for inapplied to enter the land as a homestead, a proper and correct construction of the demnity should be held operative to exand you rejected his application for the Act to encourage the growth of timber clude settlement in case of lands situreason that the tract was covered by the on western prairies,' it must be held that ated as this tract was, I have to remark timber culture entry of McLeod. From the entry contemplated in the statute that, under a practice which has in several this decision Nelson appeals. Accom- should be made upon vacant, unimproved cases obtained Machado has been permitpanying the papers relating to Nelson's re- land; not upon cultivated land covered by ted to so far perfect his claim as to make jected application to enter the land is an the valuable improvements of another, entry and final proof, thus securing, unless aflidavit by him, corroborated by one wit- and in the possession of another." absolutely unlawful, a vested right in the ness, alleging that he was "residing upon McLeod will therefore be allowed sixty land. The railroad company on the consaid land above described, with his family, days in which to show cause why his tim- trary has only the equity of a right to sethat he had made and now possesses val- ber culture entry, No. 2106, should not be lect lands within these limits to make up uable improvements thereon," and that he canceled and the homestead entry of Nel- losses to be hereafter ascertained in its had resided upon and improved said tract son allowed; and should he fail to take granted limits, and has made as I underlong prior to April 3, 1883, the date of the action in the matter within that time, the stand no application to select this tract. timber culture entry No. 2106, and it is action above indicated will be had. Upon His improvements are valuable, and their presumed that this affidavit accompanied the cancellation of the timber culture loss to him through the action of the Dethe homestead application when filed in entry 2106, the party will be entitled to partment, after your office has, although your office. The allegations of Nelson's make a new entry of the same class with perhaps mistakenly, authorized his settleaffidavit of contest, and the affidavit last credit for the fee and commissions already ment and payment, would amount to conreferred to that he had made actual settle- paid, or he may apply for the repayment of fiscation-while there is nothing to show ment and improvement upon the land the sum so paid and thereafter make a new that sufficient land may not be found elseprior to April 3, 1883, and that McLeod entry, the same as if the canceled entry where to fully satisfy the railroad grant. had never resided upon or improved the had not been made. McLeod may appeal | same, are corroborated by other testimony. from this ruling to the Hon. Secretary of McLeod's action in relinquishing his the Interior within the time above menhomestead entry and entering the land tioned. under timber culture law after an attempt to initiate a contest against said entry, indicates a doubt on his part of his ability to show compliance with legal requirements or to defend his entry against the attack about to be made, and in a measure may be accepted as corroborating the allegations of illegality and abandonment. RAILROADS. SOUTHERN PACIFIC RAILROAD VS. MACHADO. I have considered the case of the South- Your decision approving the entry for patent is accordingly affirmed. WILLIAM P. MACLAY. Railroad Limits - Double Minimum Lands. When the odd sections in certain townships within the limits of a railroad grant are excluded from the grant because reserved for Indian uses at the time the grant took effect, the price of the even sections in the same townships is not reduced to single minimum on that account. SECRETARY TELLER to Commissioner Me Farland, June 12, 1883. I have considered the application of William P. Maclay, submitted by your letter of the 6th instant, for the re-payment of the double-minimum excess paid on entry of the N. of the N. E. and the N of the N. W. of Sec. 14, Tp. 11 N., R. 20 W., Helena, Montana, as per receipt No. 894, dated December 9, 1881. The land for which the repayment of excess is sought, lies within the exterior limits of the grant to the Northern Pacific Railroad Company, and also within the Bitter Root Valley, lying above the Lo-Lo Fork. An affidavit is on file in this office, received with a letter from Nelson, dated May 15, 1883, signed by Nelson and corroborated by five witnesses, in which it is alleged that McLeod "never built a house on said land, never dug a well thereon, never broke a furrow on said land, and never lived on the land for a single day, The tract is within the twenty miles nor did he make any improvements what- granted limits of the grant by act of July ever on said land," and that Nelson "set- 27, 1866 (14 Stat., 292), to the Atlantic tled on said land about the first day of and Pacific Railroad Company, which beJanuary, 1883, and has plowed said tract came effective March 12, 1872, and the [10 acres], and put the same into crops." withdrawal for which was made May 2, From the evidence before this office I 1872; it is also within the thirty miles or am of opionion that the tract described indemnity limits of the grant by said act was uncultivated and unimproved land at to the Southern Pacific Railroad Comthe date of Nelson's settlement thereon, pany, the withdrawal for which was made and that his right as a settler under third January 3, 1867. section, act of May 14, 1880, accrued instanter upon the cancellation of the homestead entry of McLeod-No. 11,295-at 9 The said tract was also embraced within o'clock a. m., April 3, 1883, as shown by the exterior or claimed limits of the The act of June 5, 1872, (17 Stat., 226,) your endorsement upon his relinquish- Rancho Corral de Tierra, which was ap- to which you refer, provided for the surment transmitted to this office with your proved and patented January 21, 1876. vey of lands in the Bitter-Root Valley, letter of April 9, 1883, and that he was Thus it appears that at the date of the above the Lo-Lo Fork. The lands were entitled to make homestead entry for the withdrawal aforesaid the tract was sub to be opened to settlement at $1.25 per land within the time prescribed by said judice or in a state of reservation. acre, but were excluded from settlement act. The timber culture entry No. 2106 It appears that Machado filed D. S. No. under the homestead and pre-emption is therefore held to be subject to Nelson's 13,567 for the tract August 31, 1877, al- laws. An account was to be kept of the preference right to enter the land. leging settlement September 12, 1872. proceeds of the sales, and fifty thousand Had the act of May 14, 1880, never been He made proof December 7, 1877, showing dollars ($50,000) of such proceeds were to adopted, Nelson's rights would still be compliance with the requirements of the be used for the benefit of certain Indians. superior to any which McLeod could preemption law, and located military The act expressly "Provided, That no more acquire by virtue of his timber culture bounty land warrant No. 114,233, issued than fifteen townships of the lands so sur The township plat was filed in the local office December 6, 1875. In my decision of January 22d last, in the case of Phelps against said company, I held that such lands did not, by reason of their character as an Indian Reservation, pass to said Company under its said grant. veyed, shall be deemed to be subject to the provisions of this act." Although the act seems to provide for the survey of all the land in the valley, it is evident that only fifteen townships were to be sold at the price of one dollar and a quarter ($1.25) per acre. The land for which re-payment of excess is asked is not a part of such fifteen townships. The act of June 16, 1880, (21 Stat., 287,) "for the relief of certain settlers on the public lands," provides (inter alia) that "in all cases where parties have paid double minimum price for land which has afterwards been found not to be within the limits of a railroad grant, the excess of one dollar and twenty-five cents per acre shall in like manner be repaid to the purchaser thereof, or to his heirs or assigns." The lands in the Bitter-Root Valley, although excluded from the grant to the railroad company because of their character as an Indian reservation, are within the granted limits. The land in question is part of an even section. Section 6 of the act making the grant to the Northern Pacific Railroad Company provides that "the reserved alternate sections shall not be sold by the Government at a price less than two dollars and fifty cents per acre when offered for sale." eral route are changed by filing the map November 5, 1881, he applied for an exten- I think the price at which all the lands in the Bitter-Root Valley not affected by the act of 1872 aforesaid are to be sold when opened to settlement, should be fixed by you under section 2364 of the Revised Statutes; and I see no reason why the price should not be fixed at the double minimum, as in the case of certain military reservations in Dakota, within the limits of the Northern Pacific grant, mentioned in the letter of your office of January 24, 1881, which was approved by Secretary Schurz in his letter of the next day addressed to your office. The contestant, Nathan C. Lay, having appealed from your decision, the case comes now before this office for consideration on such appeal. The first witness called is Nathan C. Lay, the contestant, who testifies that the land is of a rich, black, loamy soil; that it has never been cultivated, and that it has neither water nor timber thereon. He states that it is all-beach land except about twenty-five acres, that its natural product is bunch grass, and that it is situate upon Cottonwood Creek. He has seen grass cut thereon, and is of the opinion that it produced three-fourths of a ton of hay to the acre. He knows that Mr. Krattcer raised a crop of wheat in an ad I must decline to recommend the re-joining section three years ago without payment asked for in this case. DESERT LANDS. LAY VS. HUNTER. Character of Land-Cancellation of Entry.--In ACTING COMMISSIONER HARRISON to Reg. and In the matter of the contested case of It is true that the odd sections in the Bitter-Root Valley do not pass to the company under its grant, and in that sense the even sections are not reserved; but the fact that the odd as well as the even sections are reserved, all being within the geographical limits of the grant, ought not to effect the price of the even sections. The financial part of the scheme of making grants to aid in the construction of railroads, as affecting the government, was that the government would lose nothing by the donation; that the sale of the even sections at double minimum would make the government good for the odd sections donated, and the proximity to the railroad of the even sections would make it an object to the settlers to buy the even sections at the double minimum price. It was the fact of the nearness of the road to the even sections that enhanced Under date of December 14, 1882, you their value, and not the fact that the com- transmitted to this office the testimony pany owned the odd sections. Assuming and papers submitted upon such hearing, for the purpose of illustration that the together with your joint opinion thereon. Northern Pacific is entitled to indemnity You state in your opinion, in substance, for lands within reservations existing at that you are unable to determine whether the time of the grant, then in cases like the land is desert or not in view of the the present if the even and the odd sec- fact that no attempt has been made to tions are sold at the single minimum the raise crops thereon. You state, however, government suffers a financial loss. I do not think that lands lying within the exterior limits of the grant, but which do not pass with the grant because they form a part of a reservation, are within the reason or intention of the relief intended by the provision of the act of June 16, 1880, before cited. The record shows that by letter of April 3,1882, you transmitted the application of Nathan C. Lay to contest the validity of said entry upon the ground that the lands embraced therein are not desert in character, and the applicant had failed to comply with the law in regard to reclamation. A hearing was accordingly ordered by this office by letter dated July 7, 1882. that if you were to decide that question Upon the question of reclamation of the land you state that, "the case upon this It not unfrequently happens that the point must be decided against him, refergranted limits as fixed by the map of gen-ence being made, however, to the fact that irrigation, but he knows of no other crop raised in that vicinity without irrigation. The land in question is similar to that upon which Krattcer raised wheat, and he therefore believes it would also produce a crop of wheat without artificial irrigation. Krattcer cultivated the same land last year, but witness is of the opinion that it was irrigated. On his cross examination he states that the land which Krattcer cultivated, lies one mile nearer the mountains than the land in question. Harmon Cleveland, a witness for the contestant, testifies that all the land covered by said desert entry is "timberless and waterless," that it produces from 500 to 1000 pounds of wild grass to the acre. That portion which was cut last year will not produce as much this year, and he is of the opinion it will produce less each year while it remains in its natural state, Does not think it could be successfully cultivated to wheat and oats without irrigation. He thinks it might produce half a crop the first year, but the second year it would need irrigation. Witness states that he would not attempt to cultivate said land without irrigation. On cross examination he states that he cut ten or twelve acres of the land in question in 1881, and he thinks it produced 500 lbs. of grass to the acre. James A. Carroll, a witness for the contestant, testifies that the land has no water nor timber, that it produces perhaps 500 lbs. of wild bunch grass to the acre, and that in wet seasons it would produce other crops. S. B. Kratteer raised a crop of wheat in 1879 on similar land without irrigation. In 1880 he irrigated a part of it. Said land lies nearer the mountains than that in question. On cross examination he states that the Krattcer land being nearer the mountains, receives more moisture from the foot-hills and more rain and snow. William Blain, a witness for the respondent, testifies that he cut 3 acres of the land in question in 1882, and that the had therefrom weighed eleven hundred and twenty-four pounds. The season was a favorable one for grass. John T. Matthews testifies that he "broke" 28 acres of this land for Mr. Hunter in May, 1882, and he is of the opinion that it would not produce a crop without irrigation. Samuel B. Kratteer testifies that he, "hardly thinks" that the land would produce any agricultural crop without irrigation. S. G. Krattcer, an uncle of witness, cultivated 15 acres near this land in 1879. The yield was 26 bushels of wheat to the acre without irrigation. Three miles from the land in question, witness raised 38 bushels of wheat to the acre in 1879. On cross examination he states that a part of the wheat above referred to was ir rigated, that the land is near the mountains and has springs thereon. Frank P. Hemen testifies that he has been engaged at farming nine years within three or four miles of the land in question, and upon similar land. He could raise no crop without irrigation. States that he tried it and failed in 1880. He states that he raised a splendid crop the same year by thoroughly irrigating it. William Herron testifies that he thinks the land is desert in character, and that the best of it might produce 400 or 500 lbs. of hay per acre. Irving Hunter, the respondent, testifies that the land is in its natural state, and will not produce a successful crop without irrigation. He measured 3 acres of the land upon which hay was cut in 1882. The hay weighed 1124 lbs., and the land upon which it was cut is the best grass land covered by his desert entry. On cross examination he states that he occupies school land about one mile and a half from contested land. Has never attempted to raise any crop without irrigation. 66 in this case establishes the non-desert char-2, dated June 20, 1881, selected the tracts The period allowed by law for reclaim- Inasmuch as your decision is in accord- under said act." [Reprinted to correct error.-ED.] MISCELLANEOUS. CHARLES BARRINGER. COMM'R MCFARLAND to Charles Barringer, Ruthven, Iowa, May 14, 1883. (S. W. S.) You ask for due explanation of a paragraph in "Copp's Settler's Guide" which reads: "In case a tract is withdrawn from market in consequence of an entry afterwards cancelled for any reason or through erroneous marks on the books in the district oflice, it is not again subject to private entry until restored by public notice," etc. at ordinary private entry, that is, any per It has reference to land subject to sale son can acquire title thereto by paying the government price therefor and without tract of such land is taken out of market any settlement or cultivation. When a for any reason, it cannot be purchased at restored in order that all may have an private entry until it has been properly equal opportunity to purchase. The tract, however, is subject to entry under the homestead and preemption laws without such restoration. U. S. CIRCUIT COURT. I have to state in reply that this office I have to state in reply that this office and the department are only charged by the law with the duty of seeing that the lands granted to the State of Louisiana by fied to her. If the citizens of said state act of March 2, 1849, are properly certidesire to institute proceedings, as indicated by the protest referred to, for the ST. LOUIS SMELTING AND REFINING COмpurpose of compelling a faithful execution of the trust by the proper State officers, I am of the opinion that it must be done in the courts and not through the executive branch of the Government. The PANY VS. GREEN ET AL. 1. Ejectmeet-Patent.--In an action of eject- In reply to the question Would it raise winter wheat without irrigation ?" he answers, twenty bushels to acre the first year, about ten bushels the 2d about six or seven bushels the 3d, about citation by you, Paup vs. Drew, 10 Howard, 2. Estoppel.-Query: Does the doctrine of esnothing the 4th. year, The foregoing is, in substance, the testimony in relation to the character of the land. It appears that agricultural crops have been raised without irrigation upon land of the same general character and near that in question, and it appears that the land embraced in said desert entry produces grass suitable for hay. sustains this view of the case. STATE SELECTIONS. Indemnity School Selections-Such selections can not be made of double minimum lands within railroad grants, where the lands lost were SECRETARY TELLER to Commissioner McFar- Under date of July 3d, 1882, the Hon. I have considered the appeal of the Secretary of the Interior held as follows in Governor of Florida, from your decision the case of Wood vs. Meyer. "While ir- of March 18, 1882, denying the right of rigation improves the crops on these lands, the state to select certain specified tracts it is not essential to their production; of double minimum lands aggregating and if any agricultural crop will grow 2,240 acres, in lieu of a deficit of like thereon, although of an inferior quality, it quantity of minimum lands situate in ceris not subject to entry as desert land." tain fractional townships. I am of the opinion that the testimony It appears that the State, per List No. toppel apply to one who is not the owner of real estate, but only taking steps to so become, as, applying for patent? 3. Same. An owner of real estate who stands by and allows improvements to be made thereon, while he may not be permitted to claim the improvements, will not thereby be estopped to assert title to the fee. 4. 5. Same-Notice.--One making application for patent to mineral land, is required by law to put on the premises notice thereof. The Courts will presume such notice given; which notice is of itself a warning to all that the parties are about applying for patent--seeking to obtain title. If one party knows the facts, or has opportunity to know them, and chooses to take his chances, the other party is not estopped. Same-Promise.--A promise to convey title when obtained will not estop the promisor to assert such title by action in ejectment. McCrary, Circuit Judge (orally). This is an action of ejectment, and the |