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MIXES AND MINERALS.
TIMBER AND TIMBER CULTURE.
Entered at the Post Onice at Washington, D. C., as This paper furnishes more valuable law informa- United States, Canada, Europe, and every second-class matter.
neys and real estate dealers, by more homestead, port where a United States Consul is loTHIS NOTICE MARKED with a blue or red pre-emption, and other land claiinants, and by more mine owners, engineers, and superintendents, than
cated. pencil indicates that your subscription expires with
It also informs the public that it this issue, and if you wish the paper continued with any other publication in the United States.
has for sale improved and unimproved out interruption, you should remit your renewal subscription at once.
lands in every part of the State, in small Parties renewing their subscriptions will find it
In case of Central Pacific Railroad Co.
or large tracts, for individuals or for coloadvantageous to send $1.00 for their card in the Land vs. Orr, peculiar relations between the nists, suitable for agricultural purposes. Directory one year.
then Register and the Railroad Company A company of this kind, under conscien
are hinted at. The LAND OWNER bas had tious and responsible management, may CONTENTS.
some unsatisfactory dealings with the be of great service in building up the Editorial Notes--Orange Growing .. same man.
country. Michigan has been in need of PRACTICE, Attorneys–Traugh vs. Ernst--Hahn vs. Spencer
THE “U. S. Salary List and Civil Ser- its natural advantages, it has heretofore
such an organization, for, notwithstanding -Denny vs. Taylor's Heirs..
222 vice Rules” is ready for delivery, price, secured only a small proportion of the imFoster vs. Breen--Instructions under circular of January 12, 1883.....
223 35 cents. Houston vs. Coyle.
migrant population. Its advantages of Henry Booth.
The Land Office Decisions, an official geographical position, bordering as it does publication, is ready for delivery, price, ber, mining, and fishery interests, and its
upon the lakes, the magnitude of its lumHenry Wood
225 $2.25. Frederick C. Jost....
capacity for agricultural position, should
F. M. Heaton, of Huron, Dakota, for- render it a very desirable place for settleA. R. Greene-Charles II. Darlington-Banks vs. merly of the General Land Office, was in ment. Much waste of effort in the work Smith.
town for a few days on business before of colonization might be saved by the disSederguist vs. Ayers-Clark vs. Lawson, Francis M. Foster--Circular Instructions-Jemima the Land Department. He takes
semination of trustworthy information of
away W. 2. Taylor-B. M. Stevens-Miller vs. Stover
some $10,000 Washington capital for in the character which this Michigan comHannah vs. Gerard.. 229 vestment in Dakota.
pany promises to supply regarding its own Thomas vs. McClure—and Yeates, Interpleader.. 230
THE Troy Times is astonished at the Lunney vs. Darnell-F. Joseph Shlosser........... 231 large farms in the United States owned by
ORANGE GROWING. titled Englishmen. Of individual owners For many years, there has been an in
there are Sir Edward Reed, 2,000,000 creasing breadth of land set out in orange Instructions to Reg. and Rec. Fargo, DakotaGlaze vs. Bogardus-Samuel Dewell-Golden 18. acres, Earl of Dunmore, 100,000 acres ; trees in the southern part of the State Speegle et al.
232 Earl of Dunraven, 60,000 acres; Duke of (California). This still continues, It
Sutherland, 400,000; the next largest needs but a passing visit to Los Angeles, Robertson vs. Southern Pacific R. R. Branch Line
farms are owned by Philips, Marshall & Riverside, Santa Ana, San Gabriel, and -Central Pacific Railroad Co. vs. Orr... Bramwell vs. Central and l'nion Pacitic Railroad
233 Co., 1,300,000 acres; heirs of Colonel Mur- other points, to be convinced how very Companies.
234 phy, 1,100,000 acres; H. Diston, 12,000,000 great the production of oranges will be in
acres ; Standard Oil Company, 1,000,000 a few years.
and scores of others. Nine men own The peel of the fruit can be profitably Morgan is. Craig..... Seacord vs. Talbert-Devil's Lake Indian Resor a territory equal to that of New Hamp- preserved, by being saturated with sugar, vation...
235 shire, Massachusetts, and Rhode Island dried and crystallized, but as yet no atNotice of the Discontinuance of the Land Office at Carson City, Nevada.
236 combined. Then there are the great rail-tempt has been made to utilize the inside
road corporations, whose free gifts of land by preserving it, while reducing its weight. Mineral Patents Issued Homestead Patents Issued..
236 from profligate Congresses amount to up- We believe this will be done before long. Cash Patents Issued
236 ward of 200,000,000 acres. Eleven of these Meanwhile, if we were going into a fruit
corporations have been given 120,000,000 growing business, we would grow apricots, PROFESSIONAL CARDS.
acres. The Northern Pacific road has re- which dry so admirably, raisin grapes, Redington & Hill, Washington, D.C... Curtis & Burdett, Washington, D. C.....
ceived the biggest slice, 47,000,000, and French and German plums, and other Capt. John Mullan, San Francisco & Washington. D. H. Talbot, Sioux City, Iowa....
i the grants have ranged all the way from fruits, which can be so dried that they reEllery C. Ford, Washington, D. C.... i 1,000,000 acres and upward.
tain all of their pristine virtue. They can D. K. Sickels, Washington, D.C.... C. W. Holcomb, Washington, D. C...
be sent to any part of the world at small W.J. Johnston, Washington, D. C. Henry N. Copp, Washington, D. C....
Some enterprising citizens of Detroit cost, or can be kept at home and sold. Chas. & William B. King, Washington, D. C.. IV have formed a “Michigan Land and Im Four-fifths to seven-eighths of the weight Walter H. Smith, Washington, D. C....
It A. J. Frost, Washington, D). C...
migration Company," the object of which of our finest fruits consists of water. Riddle, Davis & Padgett, Washington, D. C... iv is to obtain and disseminate information is hard on the fruit-grower to have to pay
concerning lands in the State of Michigan, Central Pacific freight rates on this water, Land Directory.....
to bring the owners of real estate in con- especially when it can be taken out by American Settler's Guide..
il tact with parties wishing to purchase drying and replaced in cooking when Copp's Land Owner-Bound. Copp's Public Land Laws.
lands, to act as agents of owners of lands wanted.—McGee's Circular. Copp's U. S. Mineral Lands
Ill in their care and disposal, and to encour-
IV age immigration and the settlement of the It is asserted that British capital to the
The company states in a circular extent of $30,000,000 went into Wyoming General Price List
IV that it has connections throughout thel and Texas last year.
specifically designated as a proper officer courts are regarded as disqualified from ATTORNEYS.
before whom these affidavits should be administering oaths in such cases, and at
made. COMMISSIONER MCFARLAND to Reg. and Ree.,
They may be made before any torneys in cases before this office must Huron, Dak., Sept. 28, 1883. (Y. P.) officer authorized to administer oaths in likewise be so regarded.
Your decision is approved, and the apAn attorney or other person who has the district where the land is situated. not entered an appearance in a contest
Whether an officer is qualified to admin- peal dismissed. case, or who has no direct interest therein, ister oaths or not is to be ascertained by
Hahn vs. SPENCER. cannot have the privilege of inspecting the law, whether State, Territorial or Napapers in such cases. [Condensed.]
tional, as the case may be, under what his Notice of Contest-- Ilow Signed. - This notice authority is claimed to be derived.
must be signed by one or both of the local Section 1778 of the Revised Statutes of officers. It cannot be signed by a clerk. TRAUGH Vs. ERNST.
the United States provides that notaries COMMISSIONER MCFARLAND to Reg. and Rec., Oaths-- Notary Public.-A Notary Public dis- public may administer oaths in all cases
Larned, Kans., Aug. 1, 1883. (R. F. F.) qualified to administer oaths in certain cases in which, under the laws of the United
Your letter of the 24th ultimo was duly is thereby disqualified under the United States States, justices of the peace of any State received, transmitting the appeal of the Notaries Public administer oaths in those or Territory may do so.
plaintiff in the case of Wm. H. Hahn vs. They cannot act officially and profes- The qualification of justices of the peace Ichabod R. Spencer, involving homestead sionally at the same time.
and of notaries public to administer oaths entry No. 6587, made September 30, 1881, COMMISSIONER MCFARLAND to Register and Re- generally, comes from local law, and not upon the N. E. 4, 6, 24, 33. ceiver, Huron, Dakota, Sept. 7, 1883. (J. W.L.) from federal authority. They are author
It seems that on the day set for hearing I have received your letter of the 238 ized under certain laws of the United the defendant made special appearance and ultimo, transmitting the appeal of A. M. States to administer particular oaths by moved the dismissal of the case, on the Traugh from your action rejecting his ap- virtue of their general qualification under ground that the notice of contest was not plication to contest the T. C. entry of State or Territorial laws.
legally issued, in that neither the Register Jacob L. Ernst, No. 9831, made August 17, Where, as in the timber culture laws, nor the Receiver signed or authorized the 1882, for the S. E. 4, 1-109-67.
the federal statute provides that an affida- same. Traugh presented contest affidavit, ac- vit may be made before any officer author
The said notice seems to have been precompanied with an application to enterized to administer oaths, such aflidavits pared by a clerk of your office, and signed the land, on August 18, 1883. Another may be made before any State or Territor-by him as follows: contest against the same entry was filed ial officer who is so authorized by the laws
"C. A. MORRIS, Register, at the same time by Hugh McLeod. The of the State or Territory. If he is not so
S." Register decided the applications simul- authorized, he cannot take such affidavit.
You submit separate and disagreeing taneous, whereupon attorneys for McLeod If there are any restrictions upon
decisions. moved to dismiss Traugh's contest on the ercise of his official functions under local The Register holds the notice to be sufground that the aflidavit of contest was laws, those restrictions render his official ficient, the Receiver that it is not, and it insufficient, “it being sworn to before the acts under the laws of the United States is from the decision of the latter that the attorney of contestant, he not being an without authority in any case to which plaintiff appeals. oficial authorized to take oaths where the such restrictions are applicable.
Rule 9 (No. 2) of Practice prescribes in land is located."
Section 468 of the Civil Code of Dakota positive terms that “ It must be signed by The Register held in his decision “ that provides that affidavits may be made be- the Register and Receiver, or by one of the office could not recognize the authority fore any person authorized to take deposi- them.” of a notary public to administer oaths to tions.
I must therefore affirm the decision of a T. C. affidavit when such notary is an Section 473 provides that the officer be- the Receiver, in recommending the disattorney for the contestant. The code of fore whom depositions are taken “must missal of the case; and you will so advise Dakota regulates the administering of not be a relative or attorney of either the parties in interest, allowing the usual oaths when the notary is likewise an at- party, or otherwise interested in the event privilege of appeal. torney, and especially cuts off the authority of the action or proceeding." of such notary when the circumstances are A notary public, or other officer holding
DENNY VS. Taylor's HEIRS. as indicated, to wit: when he is an at-office under the laws of Dakota, is not Notice to Heirs—How Given.- The notice of contorney of the claimant." therefore authorized by those laws to take
test in this case should have been served upon You accordingly rejected Traugh's con- affidavits or depositions in any case in
the several heirs, and not upon the administest, and from that rejection Traugh, which he is employed as an attorney, or in
trator only. Notice served upon one of the
heirs is not sufficient. by his attorneys, Messrs. Huntington which he is otherwise interested, or if he COMMISSIONER MCFARLAND to Messrs. Curtis Brothers, and A. G. Harris, take an ap- is a relative of either party.
and Burdett, Washington, D. C., July 31, 1883. peal, filing specification of errors and Not being authorized under the laws of (R. F. F.) argument.
Dakota to administer oaths in any such Your letter of April 14th last was duly The notary before whom Traugh's af- case, he is not qualified under the laws of received, asking in behalf of Francis M. fidavit of contest was made, was Mr. the United States to administer such oaths. Denny, for whom you appear as attorneys, Charles H. Huntington, a member of the But if the Territorial code did not pro- a review of my decision of October 30, firm of Huntington Brothers, attorneys in hibit attorneys from taking affidavits in 1882, dismissing the case of said Francis the case.
cases in which they are interested, they M. Denny vs. the Heirs or Devisees of The timber culture act provides that the could not be allowed to do so in the prac- Ralph Taylor, deceased, involving homeaffidavit of applicant to enter may be tice of this office. The reason of the law stead entry No. 1492, made by said Taymade before * * *
any “oflicer authorized is the reason of the rule, and the rule has lor May 31, 1879, upon the N. S. W. 1, to administer oaths in the district where heretofore been established in respect to S. W.IN. W. 1, 2, 46 N., 19 W., Duluth, the land is situated."
clerks of courts, and is equally applicable Minnesota. My said decision was based Rule 3 of the Rules of Practice of this to other officers. An officer who is also on the ground that the notice of contest office provides that in contest cases an an attorney at law or in fact, cannot act was defective, in that it was served upon affidavit must be filed by the contestant, officially and professionally at the same the administrator instead of upon the heirs with the Register and Receiver, fully set- time. His oflicial acts must be free from or legal representatives of the deceased ting forth the grounds of contest. Rule personal interest, or they cannot be recog- homestead claimant. 4 provides for corroborating affidavits in nized as entitled to due faith and credit. Your request for review is made on the cases therein mentioned. No officer is Attorneys of record in cases before the claim that Denny is a poor man, and unable to undergo the expense necessary to harass the contestant and create expenses and which was not accepted, there would meet the requirements of my said decision; beyond his means, is required by a rule have been no contest. that he has taken up his residence and which imposes no limitation as to the kind I concur in your opinion that Foster placed valuable improvements on the land; of testimony, and leaves no discretion with failed to prove the alleged abandonment that due notice was served upon George the local officers to bar it. These are self- and sale, and affirm your decision. Taylor, who besides being the administra- evident truths; but it is plain that the tor, is also a brother and an heir of the Rules of Practice do not contemplate the
INSTRUCTIONS. deceased homesteader; and that no one is introduction of testimony for such a pur- Under Circular of January 12, 1883, as to speccontesting the right of Denny to make pose, or for any other than a legitimate ulative and fraudulent relinquishments. entry.
purpose. They are devised for the purpose COMMISSIONER MCFARLAND to Reg. and Rec., While recognizing the hardship which, of obtaining testimony according to the Mitchell, Dakota, Sept. 7, 1883. (W. W. W.Jr.) under the circumstances presented by you, rules of law, and Rule 41 merely reserves I am in receipt of the Register's letter will necessarily be entailed upon your for consideration by your office testimony of June 29, 1883, relative to applications client, by compelling him to bring a con- as to the admissibility of which there may for entry or filing, presented in company test de novo in accordance with the re- be reasonable doubt. When it is clear with relinquishments which are rejected quirements of said decision, I see no pos- that the line of cross-examination, or the by this office, under Department circular of sible escape from such a proceeding. testimony offered, is intended to vex, or January 12, 1883, and the entry attempted
I arrive at this view after a careful con- delay, or cause unnecessary expense to the to be relinquished, cancelled on the sideration, which convinces me that to contestant, the local officers may, and they ground of fraud, and the land held subject hold that notice to one of the heirs is suf- should, peremptorily end it. In McCarter to entry by the first legal applicant. ficient to put all the others on their guard, vs. Dunn, (4 LAND OWNER, 76), Mr. Secre- The question is asked, whether such apas claimed by you, would be unwarrant- tary Schurz says: "The defendant is enti- plications are rejected together with the able as well as unjust to those heirs who, tled to a reasonable and proper cross- relinquishments they accompany, or are as a matter of fact, were not actually noti- examination of contestant's witnesses. they to be treated as the first legal applified. Although notice to them was but The local officers should exercise a sound cations; and instructions in the matter are constructive, they would nevertheless be discretion in each case, and should they requested. estopped from denying receipt thereof, become satisfied that the cross-examina- You are informed that no application should they apply to be heard on that plea tion is for the purpose of creating expense can be received or entertained by you after the case had been tried and decided and delay, and not to promote the ends of while the land applied for is covered by against them. It would be error therefore justice by ascertaining the facts, the same an entry of record; that an entry which is to conclude the rights of such heirs on the should be limited.” The wisdom of this fraudulent, or speculative, is not subject ground that the action of the administra- ruling is apparent, and it is applicable to to relinquishment, and cannot be cancelled tor and heir, George Taylor, in allowing existing cases : for the Rules of Practice thereon, for the reason that a party initiatthe case to go by default after due notice, are made in aid of the law, and not to de- ing a fraudulent entry acquires no interwas the joint act of all the heirs. feat it.
est which is capable of being relinquished, For these reasons I must decline to On the other hand, the ruling is designed and that an entry, valid in its inception, modify my said decision.
to protect the contestant, but not to shut but rendered fraudulent by the acts of the out testimony; and, therefore, when the entryman subsequent to the date thereof,
local officers have exercised their discre- becomes forfeited immediately upon the FOSTER VS. BREEN.
tion by barring testimony on the grounds commission, or attempt to commit the Testimony.- Vexatious and irrelevant cross
above stated, the contestee should be al- fraud, and the entryman loses any right examination and testimony, intended solely to lowed to proceed upon paying the addi- which he had, and might have relincreate expense, should be stopped by the local tional expense himself.
In the case at bar, I think contestee's The fact that an application filed by a SECRETARY TELLER to Commissioner McFar-counsel conducted the cross-examinations third party in connection with a doubtful land, Sept. 21, 1883. (D. A. McK.)
in a manner to cause unnecessary expense relinquishment is attached to and transI have considered the case of Roseland and delay; but, for the purpose of this ad- mitted to this office with such relinquishL. Foster vs. Jeremiah Breen, involving judication, it does not appear that the con- ment, is immaterial; it is not equivalent to homestead entry number 16185 for the N. tcstant's interests are injured by it. He an acceptance of the application subject to
of the N. E. ., the S. W. J of the N. E. 1, alleges that his means were exhausted by the cancellation of the entry, regardless of and the N. W. of the S. E. , of Sec. 14, the expense of the trial at the point where the cause of cancellation; and does not Twp. 8 S., Range 3 W., Concordia, Kan- it ended, and that he desired to introduce entitle it to consideration unless it is desas, on appeal by Foster from your deci- two other witnesses, particularizing the termined that the relinquishment is valid. sion of October 14, 1882, dismissing the faets to which they would testify. If these If the entry is canceled for fraud, the contest for want of due proof.
witnesses were to testify, as it is alleged land covered thereby was not subject to It appears by the record that at a cer- they will, to Breen's statements to them disposal at the date of the presentation of tain point in the hearing the contestant that he had sold his homestead right and the application and relinquishment. In the protested against the line of cross-exam- abandoned the land, in my opinion it would case of an application transmitted with a reination pursued by counsel for contestee, not aid contestant's cause. For it is to be linquishment which after consideration by as being intended solely to create expense observed that his case, as to the alleged this office you are directed to accept, the and delay, and asked that the local officers change of residence by contestee, depends application should also be accepted as the assess the expense of taking it upon the on testimony to facts which occurred after first legal application; for, though the cancontestee. This motion was overruled un- the initiation of contest, and which should cellation dates subsequent to the filing of der Rule 41 of the Rules of Practice, and have been excluded ; and, as to the sale of the relinquishment and the application, on appeal your office sustained the deci- the homestead right, it is admitted by yet, it having been determined that the sion.
contestant that said sale was not perfected; relinquishment is valid, by virtue of the In their appeal, counsel very pertinently consequently claimant's entry could not act of May 14, 1880, (which contemplates remark that a rule of practice should not be affected by any of this testimony. In a valid entry) the land became subject to be permitted to override the law, which fact, it is quite clear that Breen's refusal to disposal at the date of filing it, and the forfeits the homestead upon satisfactory complete the sale was the cause of this con- right of the applicant relates back. proof of abandonment; and that the law is test; for the offer to sell was made to Therefore when relinquishments, acoverridden when the introduction of irrel- | Foster, and had Breen accepted the pay- companied by applications for entry or evant testimony, whose sole purpose is to 'ment which, Foster swears, he tendered,' filing, are transmitted for the consideration of this office under Department Cir- decision of July 5, 1882; and October 9, government and the settler; and that in cular of January 12, 1883, and are re- 1882, you advised the local office that the the event of such abandonment being jected, and the entry, attempted to be re-case was closed.
proven, the sole party in interest therelinquished, canceled for fraud, with the From an affidavit filed by Houston & after is the government, to whom the land direction to you to hold the land subject Son, February 7, 1882, on behalf of Coyle, embraced in the homestead entry reverts; to entry by the first legal applicant, the and sworn to by S. D. Houston, Jr., it ap- and, further, that the only prerequisite, applications accompanying the relinquish- pears that Houston, Jr., is a member of required by the law, to confer jurisdiction ments cannot be considered.
the firm Houston & Son. July 12, 1882, upon the local office, is “due notice to the
the said S. D. Houston, Jr., filed an affi- settler.” HOUSTON VS. COYLE.
davit in the local office corroborated by In order to secure a regular system in Homestead Contests.—Review of the law and S. D. Houston, Sen., for the purpose of the administration of the foregoing law,
practice governing homestead contests. initiating a contest against Coyle's home- your office, December 14, 1865, issued a SECRETARY TELLER to Commissioner McFar- stead entry for the land before described, circular of instructions, in respect to all land, September 26, 1883. (S. V. P.) alleging that Coyle had abandoned the proceedings before local officers in cases I have considered the case of S. D. same.
of alleged abardoned homestead entries, Houston, Jr., vs. Elliott Coyle, involving August 5, 1882, the local office, follow- defining the manner in which notice of the the homestead entry of Coyle for the S. ing your decision of July 31, 1882, dis- contest should be given to the settler, and W. of the S. E. 1 of Sec. 3, and the W. missed Houston's application fora contest; providing that an affidavit setting forth
of the N. E. and the S. E. of the N. from which decision he appealed August the grounds of contest should be filed Ē. of Sec. 10, Tp. 9 S., R. 1 E., Con-17, 1882, and the firm of Houston & Son prior to the issuance of notice (2 Lester, cordia, Kansas, on plaintiff's appeal from acknowledged service of the notice of ap-259). But in this instruction no corroboyour decision of October 12, 1882, dis- peal for Coyle as his attorneys. October rating affidavit was required. It was sufmissing the contest.
12, 1882, you affirmed a decison of the ficient that the claimant alleged the facts From the record transmitted with this local office dismissing Houston's contest. in his own affidavit. case, the following facts appear :
October 14, 1882, at 9:30 a. m., Daw- As the law did not provide for the payApril 10, 1879, Coyle made his home son filed an affidavit for a second contest ment of the expenses incident to these stead entry for the land above described. against Coyle, alleging abandonment, but contests, your office, in the circular reDecember 14, 1881, J. W. Dawson initi- the local office rejected his application for ferred to above, directed that such exated a contest, alleging abandonment, a contest, for the reason that Houston's penses must be paid by the contestant. and the local office fixed the day for a appeal was then pending; from which deci- Now, under the law and practice as it hearing on February 7, 1882. sion Dawson appealed.
thus stood, the contestant acquired no December 29, 1881, Henry Thompson October 14, 1882, at 1:45 p. m., Thomp-right by appearing and furnishing the filed in the local office a notice of his in- son filed an affidavit for contest against evidence necessary to warrant action on tention to interplead and ask to be made Coyle, alleging abandonment, to which the part of the government, or by the paya party plaintiff in the contest initiated by was attached the affidavit of S. D. Hous-ment of the costs of the contest. The land Dawson; and the request appears to have ton, Jr., as a corroborating witness. The simply reverted to the United States, and been allowed and notice issued accord- local office refused to allow the contest, for once more became public land, subject to ingly.
the same reason as assigned in Dav son's entry by the first legal applicant. But, On the day fixed for the hearing of second application; from which decision after the lapse of fifteen years, Congress, Dawson's contest, Thompson appeared Thompson appealed.
recognizing the practice of your office as and filed an affidavit, alleging that Coyle, Although no action has been taken by established in the matter of requiring the June 25, 1880, sold and assigned to him your office on the appeals of Dawson and contestant to pay the expenses of the conall his (Coyle's) interest in said home-Thompson from the decisions of the local test, provided, May 14, 1880,"That in all stead, and delivered possession of the office rejecting their last applications to cases where any person has contested, same to him, and that the affidavit for initiate a contest, yet in view of the mul- paid the Land Office fees, and procured contest filed by Dawson was void and tiplicity of suits instituted and pending, the cancellation of any pre-emption, homenot in accordance with law," for which all involving mainly the right to contest stead or timber-culture entry, he shall be reasons Thompson asked to be made a Coyle's entry, and the peculiar state of notified by the Register of the Land Office party plaintiff. The local office held that facts as disclosed by the record, I am of * of such cancellation, and shall the only question to be determined was the opinion that this department should be allowed thirty days from date of such that raised by Dawson's affidavit for con- now make a final disposition of the entire notice to enter said lands.” (21 Stat., 140.) test, and on the evidence adduced by him controversy, the whole record being pre- By Rule 4 of the Rules of Practice, as held the homestead entry of Coyle for sented by the appeal.
prescribed by your office, the aflidavit for cancellation.
Section 2297 of the Revised Statutes, contest must be accompanied by the afliDuring the proceedings before the local following section five of the act of May 20, davits of one or more witnesses in support office in this contest, Houston & Son, of 1862, entitled "An act to secure Home of the allegations made by the contestant. Concordia, Kansas, appeared for the de- steads to actual settlers on the Public Do- From this brief review of the law and fendant, Coyle, and also for Thompson in main" (12 Stat. 392) provides, " That if at the practice governing contests of this nahis application to be made party plaintiff
, any time after the filing of the affidavit ture, it will be seen that the right to conand from the decision of the local office as required in section twenty-two hundred test an abandoned homestead entry exists both Coyle and Thompson appealed, the and ninety, and before the expiration of in no one, but that in consideration of above named attorneys prosecuting the the five years aforesaid, it shall be proven, being placed in possession of certain inforappeal for both parties.
after due notice to the settler; to the sat- mation, and the payment of certain exJuly 5, 1882, you dismissed Dawson's isfaction of the Register of the land office, penses, the Government holds the land in contest, for the reason that no corrobor- that the person having filed such affidavit reserve for thirty days, for the purpose of ating affidavit accompanied his aflidavit shall have actually changed his or her allowing the person wlio furnished such for contest, as provided in Rule 4 of the residence, or abandoned the said land for information, and paid such expenses, Rules of Practice, as prescribed by your more than six months at any time, then opportunity to enter the land. office, and on review, July 31, 1882, you and in that event the land so entered shall This is akin to the law, as it has from held that Dawson's contest was a bar to revert to the government.”
time to time existed, granting a moiety to the initiation of a contest by Thompson, It will be observed that under the law the informer, of the penalty imposed upon until a final disposition of the former was as above quoted the question of abandon-violators of the law in criminal cases; and made. No appeal was taken from your 'ment is one to be settled as between the 'is operative merely as an inducement to
parties, cognizant of the facts and desirous quire the bringing in, if possible, of the par- been collected by Captain Morris, late of securing the land, to come forward and ties presenting the allegation of purchase, Register, for reducing testimony to writfurnish the information upon which the as witnesses for the government, or nomi- ing in contested cases, you are advised proceedings can be based. As in criminal nally for the party contesting, at the that all moneys received from that source cases, this gives the informer no right to hearing already initiated. But if such since March 3, 1883, belong to the Regishave the proceedings instituted; but upon hearing has already been held, and the tester and Receiver jointly, under the provithe acceptance of the information, includ- timony closed, the new application to con- sions of the act of Congress approved on ing the deposit for expenses, and the in- test must be disregarded, for the reasons that date. Such moneys do not belong to stitution of proceedings thereunder, his above stated. One party having already the United States, nor are you required to right accrues to make the proofs and se-paid the expenses, submitted his proofs, account for the same as moneys received; cure the reward appropriated to him by and procured judgment, is entitled to a nor does the act specify which officer shall the law. The object of the contest is to final decision on the case as made by him. receive the same. Moneys collected from clear the record of an abandoned entry, An examination of the correspondence any of the sources mentioned in the act and restore the land to the Government, in this case reveals the fact that Houston are private funds, and for any failure of and, under the law, whenever a case of & Son, July 18, 1882, six days after S. D. either officer to pay over to the other his abandonment is proved, after due notice Houston, Jr., had filed his application to proportion thereof, the remedy would seem to the settler, the land ceases to be ap- contest Coyle's entry, wrote to your office to be by suit in the local courts for the propriated under the homestead law, and as Thompson's attorneys, with a view to se recovery of the amount so retained. becomes the property of the United States. curing a rule permitting Thompson to con- The provisions of Section 2242, Revised To secure an assurance of good faith on test Joyle's entry on the papers filed by the Statutes of the United States, do not authe part of the contestant, a rule, requiring said Thompson, February 7, 1882, at the thorize the withholding of any portion of his allegations of abandonment to be cor- hearing then held at the local office: and the salary due from the United States to roborated by the affidavits of other per- that October 2, 1882, said firm of attorneys the officer making such failure. sons prior to the issuance of the notice of addressed your office, ostensibly as attor- By department circular "M" of July contest, has been very properly prescribed neys for Coyle, urging that Dawson's con- 20, 1883, the Receiver is designated as the by the Department; but such rule must test be declared closed, “as it has hung officer to whom payment should be made not be permitted to defeat the operation some time and is a great wrong to defendant of fees allowed by the act of March 3, 1883, of the law. The information having been Coyle.”
and he is to account to the Register for furnished, the notice to the settler given, In view of the multifarious relations his share. and the parties present for the hearing in sustained by this firm of attorneys to the Captain Morris being now out of office, pursuance of such notice, the local office various parties involved in this contro- I have no jurisdiction to enforce the rehas then full jurisdiction to pursue the in-versy, and their persistent efforts to secure quirement against him. quiry, and render judgment in accordance the land in question for their own benefit, with its findings. Any question involving at a time when the record discloses them MINES AND MINERALS. the sufficiency of the information on which to be the attorneys of two parties, each of
HENRY WOOD. the local office elected to proceed, disap- whom was asserting independent and ad
School Sections in Territories.-Coal entries may pears from the moment that notice is is- verse claims to the land, I would suggest
be made on School Sections in the Territories. sued to the settler. It is by notice to the an investigation by you as to all the facts, COMMISSIONER MCFARLAND to Register and homestead settler that jurisdiction is ac- for the purpose of recommending appro- Receiver, Salt Lake City, Utah, September 17, quired, and not by virtue of any affidavits priate action with reference to the status 1883. (E. B.) on which such citation was issued : and of said attorneys before the department. I am in receipt of the papers in the apthis Department will not here review the Your decision dismissing Houston's con- plication for patent to coal land entry No. sufficiency of the information. Due notice test is aflirmed, and the application of 58, made by Henry Wood, October 9, of the issue having been given in the Thompson to appear as a contestant is 1882, upon portions of sections 9 and 16 words of the statute, or in a manner to an- overruled.
of the public lands of Utah. swer the requirements of the statute, and The evidence shows that Dawson's alle- Section 15 of the organic act, entitled satisfactory proof of abandonment made, gation of abandonment is fully sustained, “ An Act to establish a Territorial Govthe homestead entry must be canceled. and from the record it appears that due ernment for Utah," approved September
Hence, in this case, after judgment on notice of the contest was given; hence the 9, 1850, contains the following: "When the merits by the district officers, it fol- homestead entry of Coyle must be ad- the lands in said Territory shall be surlows that you erred in your decision of judged forfeited, and cancelled accord- veyed under the direction of the GovernJuly 5, 1882, dismissing Dawson's con- ingly. Although Dawson did not appeal ment of the United States, preparatory to test merely because of his failure to file from your decision of July 5, 1882, dis- bringing the same into market, sections corroborative affidavits in support of his missing his contest, yet inasmuch as he, numbered sixteen and thirty-six in each affidavits for contest. You should have at the earliest opportunity afforded by the township in said Territory shall be and adjudged the case on its merits, as re- rulings of your office, renewed his applica- the same are reserved for the purpose of .ported to you on the record.
tion to contest Coyle's entry, he will be being applied to schools in said Territory With respect to proceedings initiated remitted to his rights acquired in the first and in the States and Territories hereafter by other parties subsequently to the ini- instance, and, on showing the requisite to be erected out of the same.” tiation of Dawson's first contest, and based qualifications, be permitted to enter the Do the words of the statute import a on the same allegations of abandonment land within the period awarded by the law grant of said sections 16 and 36 to the as made by kim, it is sufficient to say that to the successful contestant.
said Territory, or such a reservation of the same cannot be entertained. The en
them as will require further legislation by tire question being custodia legis, any
Congress to open mineral lands embraced other rule would involve the government Moneys collected from any of the sources men- by said sections to entry under the mining in a multiplicity of suits to no purpose.
tioned in the act of March 3, 1883, are private laws? Nor did Thompson by the purchase of
funds, and for any failure of either officer to
August 8, 1879, Hon. Carl Schurz, SecCoyle's improvements acquire any right
pay over to the other his proportion thereof, to initiate a contest, and the proof of such
the remedy would seem to be by suit in the retary of the Interior, in deciding the
local courts for the recovery of the amount question, raised by the U. S. Attorney for purchase would only serve to establish the so retained.
Dakota, as to the right of the United allegations of Dawson. Weber vs. Shap-COMMISSIONER MCFARLAND to Henry Booth, States to bring an action for trespass upon pell, 9 Copp's L. 0., 131.
Larned, Kansas, Sept. 11, 1883. (II. C. S.) sections 16 and 36 of public lands therein The true rule in such cases would re- Relative to certain fees alleged to have reserved by Congress for the use of