COMM'R MCFARLAND to Register and Receiver, Hearing ordered by this office February 24th last, the complaint alleging illegal ity of the entry, because of the intimate and confidential relations existing between claimant and Hiram Barber, Jr. Receiver; also abandonment. Notice of contest issued March 15th. and parties cited to appear before W. L. Warren, Probate Judge of Davison county, D. T., April 19, 1883. Cora E. Harper testifies-[form 4-369], Statement and did not discover same that she was twenty-one years of age on until more than ninety days had elapsed 25th August, 1882; and it also appears from time said land came into market," that previous to attaining her majority, to wit, August 8. 1832, she initiated and kept up actual residence on the land in question. &c. Settlement on part of Bristol, is shown from August 3, 1882, also residence anl cultivation. Finally, you recommend House 12x14 feet, lumber, and well, the application be granted, although and 27 acres broken (crop of 8 acres)" con- apparently the most remarkable stitute the improvements as shown; record.” value, $275.00." From the foregoing it appears, that The "proof" is still deficient in two in- Siverson is willing (sub conditione) to restances, riz: It was made September 12. tire from the tract in question, so as to al1882, before Charles D. Austin, clerk Dis-low Bristol to repair the laches for which trict Court, Ransom county, Dakota, who he is responsible, though perpetrated by neglected to certify to the absence of the his attorney (Davis), Judge (Act March 3. 1877), and the Register failed to certify as to to the posting of pablished notice, etc. You will cause these omissions to be property supplied. This done, the case resolves itself into a question as to proper title in which to issue final certificate and receipt. Of this, I would decide that "Cora E. Harper, orphan child of Reuben S. Harper, deceased," would meet the case. The evidence discloses (and it is not denied) that Cynthia B. Page is a sister of the Receiver, but this fact is the only allegation in the complaint touching the validity of the entry, that is supported by the evidence. This fac, of itself, is not sufficient to invalidate the entry. Nor does it appear from the evidence that claimant is a member of the Receiver's family, or that she is an employee of your office; therefore, following my decision in the case of Chas. L. Cronk rs. Paul E. Upon payment of final commissions, and Page, Mitchell, D. T. [published herein-supplying deficiencies cited above, you EDITOR], the contest is dismissed. will issue final certificate and receipt, with a reference thereon to this letter "C" by date. CORA E. HARPER. Tatent.-In this case the title in which to issue I am of the opinion that he should be allowed to do so, and I find in the case of Shadduck rs. Horner, [Corp, Vol. VI, p. 113] certain principles laid down which apply, in part at least, to this case. Notably that part of the decision referring to case of Atherton es. Fowler [6 Otto 513.] I have this day, therefore, canceled as illegal yet without prejudice, Homestead Entry 11,687, of George Siverson, and you will note the same on your records with a reference to this letter C by date. ROACH VS. FLEMMING. For it accurately sets forth the basis upon which patent should issue, and embodies the fact that Cora E. Harper, in the status of a feme sole, is possessed of a homestead right in her own person, appar- Abandonment-Residence-Mortgage.-The testiently not yet utilized. nony fails to shows that the homestead claim-, ant has abandoned his claim. COMMISSIONER MCFARLAND to Reg. and Rec., Sacramento, Cal., July 11, 1882. (S. W. S.) I am in receipt of your letter of May 20, 1882, transmitting the testimony submitted in the case of John Roach es. Geo. W. Flemming, involving homestead entry No. 3,342, covering the W. 4. N. W. 4, and N. W. 4, of S. W. 4 Sec. 27, Tp. 5 N., R. 11 E. The entry was made June 2, 1881; the contest alleging abandonment, was initiated January 7, 1882, and the hearing held before you March 7, 1832. You decided in favor of the claimant, from which decision the contestant appeals. GEORGE SIVERSON. Conflict Cancellation Without Prejudice. In I am in receipt of your letter of September 14, 1882, in which you transmit for I am in receipt of your letter of May instructions from this Office "final proof" 29, 1883, transmitting an application of offered by Cora E. Harper, on homestead George Siverson to be allowed to relinentry 9172, made October 13, 1881, N. E. quish, without prejudice, and with credit 4. C-135—55, by Amanda J. Harcourt, for fee and commissions-already paid guardian of Cora E. Harper, minor orphan his homestead entry 11687, Nov. 2, 1882, child of Reuben S. Harper, deceased.-S. W. 45-130-62. Plat was filed at (Sec. 2307 R. S.) From evidence submitted, it appears that this II. E. 9172 was initiated by one person and perfected by another, though the claim in esse, remains. district oflice Sept. 4, 1882. From the testimony submitted it appears that there is a small house or cabin on the land, an orchard of some two acres, and about thirty-five acres of the land enclosed with a wire fence, about ten acres of which were sowed in wheat in Decem ber, 1881. The testimony submitted, shows: That he had inadvertently, (being mis- Mr. Flemming swears that he was reinformed,) entered a tract, on which Henry siding on the land at date of entry, havS. Bristol "had settled upon and im- ing built his house in 1879, that he reRecord evidence (from War Depart-proved, and is still residing on and im-mained on the land from June 2, 1881, unment) shows that Reuben S. Harper per- proving the same and has, I believe, a til August 27, when he went to Stockton formed about four years of military service during the War of the Rebellion. Ananda J. Harcourt, the mother of Cora E. Harper, minor orphan child, etc., did, as guardian, make homestead entry, seeking to utilize aforesaid military service of her deceased husband aforesaid, in behalf of his child, she (Harcourt), having lost the usus fructus of said military service by reason of another marriage. She testified in her petition to the Probate Court (seeking letters of guardianship), that Cora E. Harper was nineteen years of age August 25, 1880. better right than I to the land. I further The evidence further showeth, in the "That deponent mislaid said Declaratory and worked at his trade, returning to the land three times in September, twice in October, three days in November, and from January 1, 1882, he has been on the land once a week. He swears that he has never abandoned his claim nor acquired a residence elsewhere; that his household effects were left in his house and that it is his only home; that having no team he hired the plowing and sowing of the wheat done. His testimony, as to residence, is in the main corroborated by two wit nesses. The contestant and his two witnessC3 swear that they did not see the claimant the 2d section of the act of June 15, 1880 cancellation without prejudice to her right on the land between June 2, 1881, and (21 Stat., 237). Whereupon you rendered to make another with credit for fee and January 17, 1882, that the land cultivated the decision in question, holding, under commissions. authority of my immediate predecessor's McComb filed declaratory statement decisions of March 12, 1881, in the case of April 29, alleging settlement April 19, Gohrman vs. Ford (8 COPP, 6), that the en- 1878, and Martin made homestead entry tryman (Oldemeyer) had the right to pur- January 19, 1882. The hearing was April chase at any time prior to the cancellation 7, 1882, upon McComb's application to of his entry. make proof and payment. in Dec., 1881, was done in the interest of Mrs. Jane O. Green. None of the contestant's witnesses have been in the house, on the land, since day of entry. There were introduced as evidence, two deeds, one from Flemming to Jane O. Green, dated Aug. 19, 1881, quit claiming It is urged, however (inter alia), by The testimony shows that McComb setthe land in question, and one dated Jan- Bykerk's counsel that the decision cited is tled as alleged, erected a house and outuary 3, 1882, from Mrs. Green reconvey- inapplicable to the case at bar, because in buildings, broke fourteen acres, which ing the land to Flemming. Mr. Flemming that case the defendant had applied to were cultivated in 1879 and 1880, but swears that the first deed was considered purchase before trial, which was never had, from drouth failed to produce crops; and as a mortgage to secure Mrs. Green for whereas in this case Oldemeyer permitted continuously resided on the land until money loaned him, most of which was ex-it to go to trial, and did not apply to pur- September 1, 1881, when (leaving most pended in building the wire fence; that he chase until after the rendition of your ad- of his effects in his house) he left the land paid her money at different times; and verse decision. But it should be observed to labor on a railroad two hundred miles on January 3, 1882, he made final pay- that the decision cited not only holds that distant, for means of support, intending ment and she therefore deeded the land the said acts of May 14th and June 15th, to return October 1st following. His 1880, are not in pari materia, but it is wife was taken sick shortly after, and revery explicit upon the subject of the en-mained under care of a physician until tryman's right of purchase, as will be seen February 25, 1882. from the following citation : back to him. In this connection I will state that I am in receipt of a letter from the contestant's attorneys, Reddick and Solinsky, dated San Andreas, California, the 19th ultimo, "If the contest proceeds to its finality, enclosing certain affidavits and asking for to wit: the cancellation of the entry, his a rehearing, on the ground of a relinquish- preference right of entry is thereby estabment, by Flemming, purporting to have lished. But if through failure to prove been executed by the local officers at his allegations, or any of the ordinary inStockton, and which you failed to take cognizance of. Admitting the allegations contained in said affidavits to be true, it would not affect the case, as the subsequent action of the claimant shows that he has not abandoned his entry, and I must therefore decline to order a rehearing. I concur in your joint opinion holding that abandonment has not been proven. Affirmed by Secretary Teller, June 23, 1883. cidents of trial; or if the homestead party He reached the land March 7th to find his house destroyed, and Martin in occupation of a house she had erected on the land. The thirty-three months within. which McComb was required to make proof and payment expired January 19, 1881, and his failure to prove and pay within that time would be conclusive against him, except for the act of June 4, 1880, which authorizes homestead and preemption settlers on the public lands in Kansas and Nebraska, west of the sixth principal meridian (where the lands in Under this and other laws relating to question are located), when there was a homestead entries, a person may now con- loss or failure of crops from unavoidable tinue residence on and cultivation of his cause, in the years 1879 or 1880, to leave land for the time required by law; or he and be absent from their lands until Octmay at any time, in the absence of other ober 1, 1881; and during said absence no rights or claims, purchase the same on adverse rights should attach, but the setpayment of the government price; and I tlers be allowed to resume and perfect cannot think Congress intended this right their settlement as though no such abshould be subjected to the delays and sence had occurred; and the time for uncertainties of contests oftentimes in making final proof and payment is exSECRETARY TELLER to Commissioner McFar-stituted for oppressive and fraudulent tended for one year after the expiration land, June 23, 1883. I have considered the case of Andrew purposes; but that, whenever such person of the allowed term of absence. Under tendered to the Government its price for this act McComb's time for proof and Bykerk vs. Gerrit J. Oldemeyer, involving the land, and the rights of no other per- payment did not expire until October 1, homestead entry No. 16,306, of the N. of S. E. of Sec. 18, Twp. 7, R. 7 E., Lincoln son are affected thereby, he should be per- 1882, and he offered them in April preceding. He appears to have acted in district, Nebraska, on appeal by Bykerk mitted to purchase the same." good faith without intent to abandon the from your decision of July 15, 1882, in land, and the facts bring him within the favor of Oldemeyer. provisions of this act. I affirm your de BYKERK VS. OLDEMEYER. Contest-Act of June 15, 1880-Purchase. The contestee under the act of June 15, 1880, has the right to purchase at any time before the cancellation of his entry. Notice before contest of such intention is not necessary. The doctrine thus enunciated was reit- Your decision is accordingly affirmed. PRE-EMPTIONS. Act of June 4, 1880-Good Faith.-The facts in It appears that the defendant made the entry June 14, 1878. Bykerk initiated contest against the same January 4, 1881, by filing the usual affidavit alleging abandonment, pursuant to the provisions of Section 2297 of the Revised Statutes, and of the 2d section of the act of May 14, 1880 (21 Stat., 140). Whereupon citation issued the same day summoning the parties to appear at the local office the 10th of February ensuing. Upon the evidence thus adduced the Register and Receiver dismissed the contest February 22d. Con- D. McComb vs. Eliza J. Martin, involving testant having appealed from such action, the W. of the N. W. of Sec. 30, Tp. 7, you reversed the same April 29, 1882. R. 18, and E of the N. E. 4 of Sec. 25, From this action Oldemeyer appealed July Tp. 7, R. 19 W., Kirwin, Kansas, on ap5th ensuing, filing with his appeal an ap- peal by Martin from your decision of Sepplication to purchase the premises under tember 29, 1882, holding her entry for I have considered the case of William cision. TIMBER CULTURE. BUELL VS. AYRES ET AL. ACTING COMM'R HARRISON to Reg. and Rec., It appears from the records of this office that Henry Connalley made timber culture Service of notice was had by publication, and November 4, 1881, set for trial of the case, at which time the plaintiff appeared and submitted testimony, sustaining the allegations made in his complaint. Upon this testimony, the Register and Receiver declared the entry forfeited, and defendant duly notified thereof by publication, and also of his right of appeal. August 12, 1882, a relinquishment of defendant's entry was filed in the local office at Mitchell, dated July 10, 1880, and the entry was thereupon canceled. the contest of Mr. Buell reinstated, and no such application was necessary, nor the contest of Mr. Ayres dismissed. would he be permitted to file the same, as As it is conceded by both parties that he had a preference right under the law, the cancellation of Connalley's entry, July for 30 days after the cancellation of the 12, 1882, was unauthorized, and as no ap- contested entry. He also made a written peal was taken from my action in so de- application to enter said tract, on the ciding, it is unnecessary to discuss the day of trial and at two other different supposed rights of either party under said times, all of which were refused. This cancellation. evidence is not successfully contradicted in any material particular. It appears from the evidence taken at the trial in November, 1881, that Connally had in no particular complied with the law, and this he virtually admits by filing his relinquishment of the entry dated July 10, 1880. But I also find that long prior to that date Connalley had relinquished his entry, to wit: August 2, 1879, the execution of which is attested by Wm. H. Davenport and George Randall. This relinquishment is executed on the back of the duplicate receipt, and only ten days after date of entry. The relinquishment of July 10th is executed upon a separate printed sheet, which is pasted on the back of the duplicate receipt, thus hiding the first relinquishment from sight, the existence of which was ascertained by soakAugust 16th, of the same year, Alexan- ing the duplicate receipt and second reder T. Buell made timber culture entry of linquishment in water until they came the remaining one-half of said tract No. 9862. August 16, following, James L. Ayres filed D. S. No. 19170, for the east half of said tract, alleging settlement thereon the 15th day of the same month. apart. One W. B. Ingersoll, attorney for Mr. Buell, swears that he made out Buell's contest affidavit, and that at the time Buell executed said affidavit he did not then make his application and affidavit to enter said land. This evidence does not contradict Buell, for Buell says he made a verbal application to the Register, when he filed his suit. Ingersoll did not pretend to say he was present then, nor that Buell did not make such verbal application, and if his affidavit has any bearing on this case at all, it only shows that he did not discharge his duty to his client. Buell did all that it was reasonable to expect him to do, and had the Register permitted him, there is no doubt but that he would have filed a written application and affidavit for entry of the land, as he had paid $300 for the privilege of contesting this Connalley entry. He, therefore, comes fairly within the rule laid down by the Supreme Court and this Department in the cases of Lytle vs. Arkansas, 9 Howard, 314; 18 Curtis, 159; Morrison vs. Stalnaker, 9 Copp, 85, and This latter case I consider decisive of Mr. Ayres in his contest affidavit dated August 19th, Nathan E. Reed made January 3, 1883, swears positively that timber culture entry 9862, for the tract Connally has failed to comply with het embraced in the filing of Jas. L. Ayres. law in any particular, and that this entry December 29, 1882, this office canceled is one of a series of entries made by John the filing of Ayres, and the entry of Buell, D. Cameron, which are all notoriously on the ground that the same were erro- fraudulent and illegal. It is therefore Schmidt vs. Stilwell, 9 Copp, 172. neously allowed, because Rule 53 of the conceded by both Mr. Buell and Ayres, Rules of Practice prohibits the local and the testimony and relinquishments, the one at bar. The fact that Ayres has officers from making any disposition of establish the fact that Connalley's entry made about $1000 worth of improvethe land embraced in a contest suit, dur- was fraudulent and illegal, and that he did ments on the land since August, 1882, ing the pendency of such suit. not comply with the law. His entry is cannot prejudice Buell's rights. Ayres, accordingly canceled, and you will so note who is a land attorney, was bound by the upon the records of your office. record to take notice of Buell's contest, and his familiarily with the land law and practice must have informed him that the cancellation of Connalley's entry, July 12, 1882, on the relinquishment filed, was ir regular and illegal, and that he could not acquire any settlement right on said land while Buell's contest was pending, nor until Connalley's entry had been properly canceled. Timber culture entry No. 9862, by Nathan E. Reed, for E. of S. W. 1, Sec. 5, T. 110, R. 61, is hereby canceled for the reason just stated, and also for conflict with the reinstated entry of Connalley. (Note the cancellation on your records, and advise the party in interest accordingly.) No appeal was taken by either Ayres or Buell from my action in canceling their entries. In fact, the attorneys for both parties, in their oral argument of this case on the 1st inst., admitted the correctness of my action in the premises. I have therefore only to consider the case in its entirety as now presented. December 29th, 1882, I directed the dismissal of the contested case of Mr. Buell, for the reason that it did not appear from the record of the case that he applied to enter the tract embraced in the contested entry, at date of the initiation of his suit. January 6, 1883, the Register of your office permitted James L. Ayres to initiate contest against the entry of Connalley. Under date of January 30th last, you transmitted to this office the application of Mr. Buell for a rehearing and review of my decision of December 29th last, dismissing his contest, and on March 16th following, my said decision was revoked, I now come to consider the main question in this case as between Mr. Buell and Mr. Ayres, viz.: Has Mr. Buell complied with the law in the initiation of his contest and has he the preference right of entry under and by virtue thereof? But before proceeding to dispose of this question I will state that Mr. Ayres denies the right of this office to revoke its decision of December 29, 1882, or to dismiss his contest. In reply it is only necessary to state that Mr. Ayres' contest was subject to the rights of Mr. Buell under the Rules of Practice applicable to motions for rehearings, reviews and appeals. This office has the right to revoke its decision on its own motion or at the instance of either party to the contest, upon proper showing; therefore my decision of March 16 last was proper and correct; 1 Copp, 1882, 222; 9 Copp, 64233. It appears from the evidence of contestant Buell, Judd Willis, John T. McWhorter, and the certificate of Wm. Letcher, Register of the Mitchell Office, that when Mr. Buell initiated his contest, he applied to said Letcher, verbally, to enter said land, and was informed by him that Nor can the substantial rights of Buell be defeated by the surprise of a contest illegally and erroneously allowed, such as was Ayres. Schneider vs. Bradley, 9 Copp, 64; Smith vs. Oakes, ib. 233; Love vs. French-Huron, April 5, 1883. Notify Mr. Buell that he will be allowed thirty days in which to enter the land. R. H. TRUSDLE. Contest-Preferred Right-Pre-emption Filing. The timber culture entry of Trusdle is allowed, subject to the pre-emption filing of Watson. SECRETARY TELLER to Commissioner McFarland, May 28, 1883. I have considered the appeal of R. H. Trusdle from your decision of September 19, 1881, rejecting his application to interplead in the case of Jonathan C. Hale vs. Lafayette Cook, involving the latter's of Watson whose right will depend This construction, since that decision, timber culture entry made October 3, upon his actual settlement, October 3, has been followed by this Department. 1878, upon the W. of the N. E., and 1881, which was prior to Trusdle's (Ewing vs. Ricard. 9 Copp L. O., 174). I the E. of the N. W. of Sec. 27, Tp. 5, application of October 10th, and will therefore reverse your decision, and direct R. 16, Kirwin, Kansas, and to contest said be determined by his proofs at the that the defendant's entry be allowed to entry. proper time. stand. Hale initiated his contest against Cook March 2, 1881, notice of which was returnable June 2d. Trusdle filed his applica tion May 13th, and on May 16th Hale filed an amended affidavit to the effect that his contest was in behalf and for the use of his daughter, Abbie A. Hale. Trusdle's application was properly rejected because, not applying to enter the tract he had no right to contest Cook's entry. (Bundy vs. Livingston, Copp. December, 1882.) FITCH VS. CLARK. Default Cured-Good Faith.-If a timber cul ture claimant is not in default as to the whole SECRETARY TELLER to Commissioner McFar- I have considered the case of W. R. ANDREW KORBE. Relinquishment Purchaser Non-payment.— COMMISSIONER MCFARLAND to Reg. and Rec. The contest of Hale against Cook was also unauthorized because he did not apply to enter the tract when initiating the contest, and also because he had ex-try forfeited. hausted his right of further entries under The entry was made May 17, 1880. The both the homestead and timber culture affidavit of contest was filed January 14, laws which were then intact; and it would 1882, and alleged that "H. G. Clark It appears that Kipple died May 28, be a vain proceeding to permit a contest failed to break, or cause to be broken, 1879, and that on June 28, 1880, his with a view to an entry which could not five acres of the tract claimed during widow, as administratrix, executed a rebe allowed. the first year after the entry thereof, linquishment to the United States of said viz., Letween the 17th day of May, entry before John G. Tracy, probate 1880, and the 18th day of May, judge of Ellis county, Kansas. 1881." On June 21, 1881, Byron C. Davis filed Cook's relinquishment of his right to the tract, and it thereby became again public land, subject to the first legal applicant; The proofs show that the land is low and Davis applied on the same day to and wet in character, and was overflowed enter it under the timber culture law, but in the spring and early summer of the did not tender the fees therefor as required years 1880 and 1881; that the defendant ly the act of June 14, 1878. He conse-made arrangement for breaking five acres quently acquired no right. during the spring of 1880, but that after On October 10, 1881, Trusdle applied May 23d, there was no time during what to enter the tract in due form under the is known as the breaking season (which is timler culture law, tendering the fees stated to be from about June first to Autherefor, Lut his application was rejected gust first) in which it could have been under your decision of September 19. done, owing to the wet condition of the 1881. because the thirty days preference land. It appears, however, that the work right, within which you allowed Hale to might have been done in September or enter it, had not expired. Even had Hale October. In 1881, the ground was too had such preference right, Trusdle's ap- wet for breaking until about August the plication should have been allowed sub-first, when the defendant caused to be ject thereto (Shanley vs. Moran, March| broken what was supposed to be ten acres, 12, 1883, 10 Copp, 93). But Hale having but upon actual measurement, it proves to no preference or other right (for the be nine and one half acres. The good reason stated), and there being no valid claim to the tract, Trusdle's application should have been allowed. faith of the defendant is shown, and at the On November 16, 1880, Edwin F. Wood presented at your office what purported to be a copy of said relinquishment certified to by the probate judge, and he applied at the same time to enter the land under the timber culture laws. You rejected the relinquishment and application on the ground that the prebate judge did not state that the original relinquishment was on file in his office, and because a copy of a relinquishment is not suflicient to cause a cancellation of the entry. Wood appealed from this decision, alleging that he purchased the relinquishment from Mrs. Kipple, the relinquishment and purchase money ($50), being deposited with the probate judge; that the relinquishment and his application to enter the land were in the first instance sent to the local land office by the probate judge, but were returned to him for correction, and that Mrs. Kipple subsequently Afterwards, November 9th, Lafayette obtained possession of the relinquishment Wands (filing the relinquishments of Hale and sold the same to another party. The and Abbie A. Hale) applied to enter the probate judge made afidavit to the same tract under the timber culture law, which effect. His receipt, dated June 23, 1880, application was rejected, because of Trusfor the $50 paid by Wood was also transdie's rejected application of October 10th, mitted. An affidavit from Mrs. Kipple upon which his appeal was pending, and dated September 18, 1880, accompanied also because of his subsequent application At the time of the contest and of your the papers in which she stated that the of November 9th, made prior to Wands' decision, it was supposed that the statute Receiver's duplicate receipt for entry No. application on the same day; and on absolutely required that five acres should 91 had been delivered to one Charles MilNovember 12th J. J. Watson applied to be broken during the first year; but this ler, and had been lost or destroyed. file a declaratory statement for the tract, Department held, in Galloway vs. Winston, By my letter of February 14, 1881, your alleging settlement October 3, 1881, (9 Copp L. O., 98,) that if the entryman action in rejecting the certified copy of which application was rejected because was not in default as to the whole amount the relinquishment and Wood's applicaof the pending appeals from rejection required to be broken at the time of filing tion to enter the land, was so far modified of both Trusdle's and Wands' appli- the affidavit of contest, the forfeiture of as to permit him to furnish further evication. the entry would not be declared; in dence "to settle the matter of heirship." I modify your decision and direct the other words, that if the default had Supplemental testimony was forwarded, allowance of Trusdle's application of been cured before any other rights had being the affidavits of Mrs. Kipple and October 10, 1881, and also the filing intervened,entry would the be preserved. 'Rasmus Rassmusson, respectively, setting this letter. forth the names and ages of the minor heirs Kipple's entry having been canceled, the land subject to proper entry by the of Samuel P. Kipple, deceased. An order the land became subject to entry, and first legal applicant after the receipt of of sale from the probate court, dated July Wood was permitted to enter it. His 9, 1880, authorizing the disposal of the entry is now intact upon the records, but interest of the estate of Samuel P. Kipple is liable to contest for any failure of his in T. C. entry No. 91, was also filed by own to comply with the law. Mr. Wood. On May 17, 1881, the entry was canceled by this office, as relinquished on the papers submitted by Wood, and he was allowed to enter the land, which he did on May 24, 1881, per T. C. entry No. 3762. On May 5, 1881, Andrew Korbe filed an application to contest T. C. entry No. 91, upon the ground of the failure of Kipple or his heirs to comply with the law, and the further allegation that the entry had been relinquished and sold to him (Korbe) for the sum of $100. You rejected the application to contest, for the reason that an application for the cancellation of the entry was then pending before this office. From this action Korbe appealed. He transmitted the duplicate receipt in entry No. 91, with the original relinquishment by Mrs. Kipple, as administratrix, endorsed thereon. A certificate from the judge of the probate court, dated June 20, 1880, showing that Mrs. Kipple was the duly appointed administratrix of the estate of Samuel P. Kipple, deceased, and a certified copy of letter of guardianship dated August 9, 1880, accompanied the papers in the case. Korle alleges that he purchased the relinquishment and improvements from Mrs. Kipple" on or before the 9th day of July, 1830," paying her therefor the sum of $100. Your action is affirmed, and Korbe's appeal is dismissed. ALLEN B. LEMMON. Relinquishment of Timber Culture Entry-Ruling COMMISSIONER MCFARLAND to Reg. and_Rec., Lemmon states in his relinquishment, At the time he made the entry he stated under oath that it was for the cultivation of timber, and for his own exclusive use and benefit; and that he made the application in good faith, and not for the purpose of speculation, or directly or indirectly for the use or benefit of any other person or persons whomsoever, and that he intended to hold and cultivate the land and to fully comply with the provisions of the law. Note the cancellation on your records, and inform this office thereof as heretofore instructed in such cases. TIMBER DEPREDATIONS. You are advised that on and after the first of July next the fixed sum of three ($3.00) dollars per day, in addition to the amount of your annual salary, will be allowed in lieu of daily actual expenses, as now provided by law; which matter you will bear in mind, and be governed accordingly in incurring expenses and in preparing your monthly accounts after the date named. N. C. MCFARLAND, Commissioner. KELLEY, WEEKS & Co. et al. Timber.-Lumber-As the two parties interested seek to throw the responsibility upon each other, the value of the lumber, not logs, is demanded from them jointly. SECRETARY TELLER to Commissioner Me Farland, June 18, 1883. Yours of the 15th instant is received, transmitting letter to Special Agent Welch, from Kelley, Weeks & Co., lumber dealers, of Racine, Wisconsin, dated April 6th last; letter to Special Agent Welch from L. F. Parker, of Racine, Wisconsin, dated April 7th last; and letter from Hon. Philetus Sawyer, dated the Cth instant, enclosing one to him from L. F. Parker, dated the 4th instant; all in relaThere is no doubt but that Mrs. Kipple tion to certain timber purchased by Kelsold to Wood her relinquishment of T. ley, Weeks & Co., through Parker, from C. entry No. 91 for the sum of $50, one Amos F. Ames, which had been dethe money being left in the hands of rived by said Ames, from logs unlawfully the probate judge to be delivered to A little more than a month thereafter cut by him from certain described public her upon the cancellation of the he relinquishes his entry for a valuable lands in Michigan. This Department has entry. consideration according to his own state- demanded from Parker and Kelley, Weeks When the papers were returned for ment, which of course is proof conclusive & Co., jointly, the full value of said lumcorrection she attempted to abandon that the relinquishment, at least, was made ber when purchased. Kelley, Weeks & her contract with Wood, and sold the the subject of speculative negotiation, and Co., deny responsibility in the matter, relinquishment to Korbe for $100 it is also presumptive evidence, and in my throwing it upon Parker, of whom they through the Charles Miller previously own opinion clearly indicates that the en- purchased. Parker offers to pay the mentioned. try was fraudulent in its inception, the stumpage value of the logs from which the party's allegations to the contrary notwith- lumber was derived, two dollars ($2.00) standing, and it is therefore not capable per thousand feet, board measure; but of being relinquished. writes to Agent Welch that he "never for a moment supposed" he "could be held to pay for that which he never had any title to or interest in ;" and to Mr. Sawstruction in the circular referred to by yer he writes that "it appears entirely unyou, and the said entry is this day can- just that "he "should be made to pay that celed for fraud, pursuant to paragraphs demand" (the value of the lumber). And 3, 6 and 9 of the said instructions, there Mr. Sawyer writes that he "thinks the being no proof to overcome the presump-government ought to accept the propotion of fraud, as provided in paragraph sition." The purchaser of a relinquishment of a public land entry gains no rights against the United States from the mere fact of such purchase, and the question of dupli- Your action in withholding your acceptcate sales or of the payment or non-pay-ance of such relinquishment is accordingly ment of price have no legal bearing in the sustained under paragraph 1 of the indetermination of a case. Wood presented evidence of a relinquishment and therefore of the abandonment of Kipple's entry, whereupon that entry was canceled, and his own entry of the land was allowed. While the matter of the cancellation of 7 thereof. Kipple's entry was pending before this You will advise Lemmon at once, and office on Wood's application, Korbe ap- in case the party who purchased the replied to contest. His application was linquishment has filed an application to properly rejected by you on account of enter the tract, you will not allow him any the pending proceedings. preference right in the matter, but hold It certainly is no new thing in the operation of law for the owner of property unlawfully taken to demand restitution thereof or compensation therefor of the party-though he be an innocent party— into whose hands the property is traced. |