VOL. X. COPP'S LAND OWNER WASHINGTON, D. C., OCTOBER 15, 1883. THIS NOTICE MARKED with a blue or red pencil indicates that your subscription expires with this issue, and if you wish the paper continued with out interruption, you should remit your renewal subscription at once. Parties renewing their subscriptions will find it THIS paper furnishes more valuable law information for less money, and is read by more land attorneys and real estate dealers, by more homestead, pre-emption, and other land claimants, and by more mine owners, engineers, and superintendents, than any other publication in the United States. In case of Central Pacific Railroad Co. advantageous to send $1.00 for their card in the Land vs. Orr, peculiar relations between the Directory one year. then Register and the Railroad Company same man. THE "U. S. Salary List and Civil Service Rules" is ready for delivery, price, 223 35 cents. 224 225 THE Land Office Decisions, an official publication, is ready for delivery, price, 225 $2.25. 226 F. M. HEATON, of Huron, Dakota, formerly of the General Land Office, was in 226 town for a few days on business before the Land Department. He takes away some $10,000 Washington capital for in 227 229 vestment in Dakota. Thomas vs. McClure-and Yeates, Interpleader.. 230 PRE-EMPTION. THE Troy Times is astonished at the Lunney vs. Darnell-F. Joseph Shlosser............................ 231 large farms in the United States owned by No. 14. United States, Canada, Europe, and every port where a United States Consul is located. It also informs the public that it has for sale improved and unimproved lands in every part of the State, in small or large tracts, for individuals or for colonists, suitable for agricultural purposes. A company of this kind, under conscientious and responsible management, may be of great service in building up the country. Michigan has been in need of its natural advantages, it has heretofore such an organization, for, notwithstanding secured only a small proportion of the immigrant population. Its advantages of geographical position, bordering as it does upon the lakes, the magnitude of its lumber, mining, and fishery interests, and its capacity for agricultural position, should render it a very desirable place for settlement. Much waste of effort in the work of colonization might be saved by the dissemination of trustworthy information of the character which this Michigan company promises to supply regarding its own section. ORANGE GROWING. For many years, there has been an increasing breadth of land set out in orange trees in the southern part of the State (California). This still continues. It needs but a passing visit to Los Angeles, Riverside, Santa Ana, San Gabriel, and other points, to be convinced how very great the production of oranges will be in titled Englishmen. Of individual owners there are Sir Edward Reed, 2,000,000 acres, Earl of Dunmore, 100,000 acres ; Earl of Dunraven, 60,000 acres; Duke of Sutherland, 400,000; the next largest farms are owned by Philips, Marshall & 233 Co., 1,300,000 acres; heirs of Colonel Mur234 phy, 1,100,000 acres; H. Diston, 12,000,000 acres; Standard Oil Company, 1,000,000 a few years. acres, and scores of others. Nine men own The peel of the fruit can be profitably a territory equal to that of New Hamp-preserved, by being saturated with sugar, 235 shire, Massachusetts, and Rhode Island dried and crystallized, but as yet no at236 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. 236 from profligate Congresses amount to up- We believe this will be done before long. 236 ward of 200,000,000 acres. Eleven of these Meanwhile, if we were going into a fruitcorporations have been given 120,000,000 acres. The Northern Pacific road has received the biggest slice, 47,000,000, and the grants have ranged all the way from 1,000,000 acres and upward. 236 PAGE I I I SOME enterprising citizens of Detroit I have formed a "Michigan Land and Im. migration Company," the object of which Riddle, Davis & Padgett, Washington, D. C...... IV is to obtain and disseminate information Chas. & William B. King, Washington, D. C. growing business, we would grow apricots, It It is asserted that British capital to the extent of $30,000,000 went into Wyoming and Texas last year. Oaths-Notary Public.-A Notary Public dis- specifically designated as a proper officer Whether an officer is qualified to admin- Section 1778 of the Revised Statutes of the United States provides that notaries public may administer oaths in all cases in which, under the laws of the United States, justices of the peace of any State or Territory may do so. The qualification of justices of the peace and of notaries public to administer oaths generally, comes from local law, and not from federal authority. They are authorized under certain laws of the United States to administer particular oaths by virtue of their general qualification under State or Territorial laws. courts are regarded as disqualified from administering oaths in such cases, and attorneys in cases before this office must likewise be so regarded. Your decision is approved, and the appeal dismissed. HAHN VS. SPENCER. Notice of Contest-How Signed.-This notice must be signed by one or both of the local officers. It cannot be signed by a clerk. COMMISSIONER MCFARLAND to Reg. and Rec., Larned, Kans., Aug. 1, 1883. (R. F. F.) Your letter of the 24th ultimo was duly received, transmitting the appeal of the plaintiff in the case of Wm. H. Hahn vs. Ichabod R. Spencer, involving homestead entry No. 6587, made September 30, 1881, upon the N. E. 4, 6, 24, 33. It seems that on the day set for hearing the defendant made special appearance and moved the dismissal of the case, on the ground that the notice of contest was not legally issued, in that neither the Register nor the Receiver signed or authorized the same. Where, as in the timber culture laws, the federal statute provides that an affidaTraugh presented contest affidavit, ac- vit may be made before any officer authorThe said notice seems to have been precompanied with an application to enter ized 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 decisions. moved to dismiss Traugh's contest on the ground that the affidavit of contest was insufficient, "it being sworn to before the attorney of contestant, he not being an official authorized to take oaths where the land is located." If there are any restrictions upon the ex- Section 468 of the Civil Code of Dakota The Register held in his decision" that the office could not recognize the authority of a notary public to administer oaths to a T. C. affidavit when such notary is an Section 473 provides that the officer beattorney for the contestant. The code of fore whom depositions are taken "must Dakota regulates the administering of not be a relative or attorney of either oaths when the notary is likewise an at-party, or otherwise interested in the event 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 as indicated, to wit: when he is an at- office under the laws of Dakota, is not torney of the claimant.” therefore authorized by those laws to take You accordingly rejected Traugh's con- affidavits or depositions in any case in test, and from that rejection Traugh, which he is employed as an attorney, or in by his attorneys, Messrs. Huntington which he is otherwise interested, or if he Brothers, and A. G. Harris, take an ap- is a relative of either party. peal, filing specification of errors and argument. The notary before whom Traugh's affidavit of contest was made, was Mr. Charles H. Huntington, a member of the firm of Huntington Brothers, attorneys in the case. The timber culture act provides that the affidavit of applicant to enter may be made before *** any "officer authorized to administer oaths in the district where the land is situated." Rule 3 of the Rules of Practice of this office provides that in contest cases an affidavit must be filed by the contestant, with the Register and Receiver, fully setting forth the grounds of contest. Rule 4 provides for corroborating affidavits in cases therein mentioned. No officer is The Register holds the notice to be sufficient, the Receiver that it is not, and it is from the decision of the latter that the plaintiff appeals. Rule 9 (No. 2) of Practice prescribes in positive terms that "It must be signed by the Register and Receiver, or by one of them." I must therefore affirm the decision of the Receiver, in recommending the dismissal of the case; and you will so advise the parties in interest, allowing the usual privilege of appeal. DENNY VS. TAYLOR'S HEIRS. Notice to Heirs-How Given.-The notice of contest in this case should have been served upon the several heirs, and not upon the administrator only. Notice served upon one of the heirs is not sufficient. COMMISSIONER MCFARLAND to Messrs. Curtis and Burdett, Washington, D. C., July 31, 1883. (R. F. F.) Not being authorized under the laws of Dakota to administer oaths in any such Your letter of April 14th last was duly case, he is not qualified under the laws of received, asking in behalf of Francis M. the United States to administer such oaths. Denny, for whom you appear as attorneys, But if the Territorial code did not pro-a review of my decision of October 30, hibit attorneys from taking affidavits in 1882, dismissing the case of said Francis cases in which they are interested, they M. Denny vs. the Heirs or Devisees of could not be allowed to do so in the prac- Ralph Taylor, deceased, involving hometice of this office. The reason of the law stead entry No. 1492, made by said Tayis the reason of the rule, and the rule has lor May 31, 1879, upon the N. S. W. 1, heretofore been established in respect to S. W. N. W. 1, 2, 46 N., 19 W., Duluth, clerks of courts, and is equally applicable Minnesota. My said decision was based to other officers. An officer who is also on the ground that the notice of contest an attorney at law or in fact, cannot act was defective, in that it was served upon officially and professionally at the same the administrator instead of upon the heirs time. His official acts must be free from or legal representatives of the deceased personal interest, or they cannot be recog-homestead claimant. nized as entitled to due faith and credit. Your request for review is made on the Attorneys of record in cases before the claim that Denny is a poor man, and un While recognizing the hardship which, under the circumstances presented by you, will necessarily be entailed upon your client, by compelling him to bring a contest de novo in accordance with the requirements of said decision, I see no possible escape from such a proceeding. INSTRUCTIONS. able 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 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., of obtaining testimony according to the Mitchell, Dakota, Sept. 7, 1883. (W. W. W.Jr.) rules of law, and Rule 41 merely reserves I am in receipt of the Register's letter for consideration by your office testimony of June 29, 1883, relative to applications as to the admissibility of which there may for entry or filing, presented in company be reasonable doubt. When it is clear with relinquishments which are rejected that the line of cross-examination, or the by this office, under Department circular of 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-examinashould they apply to be heard on that plea after the case had been tried and decided against them. It would be error therefore to conclude the rights of such heirs on the ground that the action of the administrator and heir, George Taylor, in allowing the case to go by default after due notice, was the joint act of all the heirs. SECRETARY TELLER to Commissioner McFarland, Sept. 21, 1883. (D. A. McK.) I have considered the case of Roseland L. Foster vs. Jeremiah Breen, involving homestead entry number 16185 for the N. of the N. E. 4, the S. W. 4 of the N. E., and the N. W. of the S. E. 4, of Sec. 14, Twp. 8 S., Range 3 W., Concordia, Kansas, on appeal by Foster from your decision of October 14, 1882, dismissing the contest for want of due proof. It appears by the record that at a certain point in the hearing the contestant protested against the line of cross-examination pursued by counsel for contestee, as being intended solely to create expense and delay, and asked that the local officers assess the expense of taking it upon the contestee. This motion was overruled under Rule 41 of the Rules of Practice, and on appeal your office sustained the decision. In their appeal, counsel very pertinently remark that a rule of practice should not be permitted to override the law, which forfeits the homestead upon satisfactory proof of abandonment; and that the law is overridden when the introduction of irrelevant testimony, whose sole purpose is to tion is for the purpose of creating expense On the other hand, the ruling is designed You are informed that no application can be received or entertained by you while the land applied for is covered by an entry of record; that an entry which is fraudulent, or speculative, is not subject to relinquishment, and cannot be cancelled thereon, for the reason that a party initiating a fraudulent entry acquires no interest which is capable of being relinquished, and that an entry, valid in its inception, but rendered fraudulent by the acts of the entryman subsequent to the date thereof, becomes forfeited immediately upon the commission, or attempt to commit the fraud, and the entryman loses any right which he had, and might have relinquished. The fact that an application filed by a third party in connection with a doubtful relinquishment is attached to and transmitted to this office with such relinquishment, is immaterial; it is not equivalent to an acceptance of the application subject to the cancellation of the entry, regardless of the cause of cancellation; and does not entitle it to consideration unless it is determined that the relinquishment is valid. In the case at bar, I think contestee's counsel conducted the cross-examinations in a manner to cause unnecessary expense and delay; but, for the purpose of this adjudication, it does not appear that the contestant's interests are injured by it. He alleges that his means were exhausted by the expense of the trial at the point where it ended, and that he desired to introduce two other witnesses, particularizing the faets to which they would testify. If these If the entry is canceled for fraud, the witnesses were to testify, as it is alleged land covered thereby was not subject to they will, to Breen's statements to them disposal at the date of the presentation of that he had sold his homestead right and the application and relinquishment. In the abandoned the land, in my opinion it would case of an application transmitted with a renot aid contestant's cause. For it is to be linquishment which after consideration by observed that his case, as to the alleged this office you are directed to accept, the change of residence by contestee, depends application should also be accepted as the on testimony to facts which occurred after first legal application; for, though the canthe initiation of contest, and which should cellation dates subsequent to the filing of have been excluded; and, as to the sale of the relinquishment and the application, the homestead right, it is admitted by yet, it having been determined that the contestant that said sale was not perfected; relinquishment is valid, by virtue of the consequently claimant's entry could not act of May 14, 1880, (which contemplates be affected by any of this testimony. In a valid entry) the land became subject to fact, it is quite clear that Breen's refusal to disposal at the date of filing it, and the complete the sale was the cause of this con- right of the applicant relates back. test; for the offer to sell was made to Therefore when relinquishments, acFoster, and had Breen accepted the pay-companied by applications for entry or ment which, Foster swears, he tendered, filing, are transmitted for the considera tion of this office under Department Circular of January 12, 1883, and are rejected, and the entry, attempted to be relinquished, canceled for fraud, with the direction to you to hold the land subject to entry by the first legal applicant, the applications accompanying the relinquishments cannot be considered. HOUSTON VS. COYLE. Homestead Contests.-Review of the law and practice governing homestead contests. SECRETARY TELLER to Commissioner McFarland, September 26, 1883. (S. V. P.) I have considered the case of S. D. Houston, Jr., vs. Elliott Coyle, involving the homestead entry of Coyle for the S. W. of the S. E. of Sec. 3, and the W. of the N. E. and the S. E. of the N. E. of Sec. 10, Tp. 9 S., R. 1 E., Concordia, Kansas, on plaintiff's appeal from your decision of October 12, 1882, dismissing the contest. From the record transmitted with this case, the following facts appear: April 10, 1879, Coyle made his homestead entry for the land above described. December 14, 1881, J. W. Dawson initiated a contest, alleging abandonment, and the local office fixed the day for a hearing on February 7, 1882. December 29, 1881, Henry Thompson filed in the local office a notice of his intention to interplead and ask to be made a party plaintiff in the contest initiated by Dawson; and the request appears to have been allowed and notice issued accordingly. On the day fixed for the hearing of Dawson's contest, Thompson appeared and filed an affidavit, alleging that Coyle, June 25, 1880, sold and assigned to him all his (Coyle's) interest in said homestead, and delivered possession of the same to him, and that the affidavit for contest filed by Dawson was void and not in accordance with law," for which reasons Thompson asked to be made a party plaintiff. The local office held that the only question to be determined was that raised by Dawson's affidavit for contest, and on the evidence adduced by him held the homestead entry of Coyle for cancellation. During the proceedings before the local office in this contest, Houston & Son, of Concordia, Kansas, appeared for the defendant, Coyle, and also for Thompson in his application to be made party plaintiff, and from the decision of the local office both Coyle and Thompson appealed, the above named attorneys prosecuting the appeal for both parties. decision of July 5, 1882; and October 9, government and the settler; and that in the event of such abandonment being proven, the sole party in interest thereafter is the government, to whom the land embraced in the homestead entry reverts; and, further, that the only prerequisite, required by the law, to confer jurisdiction upon the local office, is "due notice to the settler." From an affidavit filed by Houston & Son, February 7, 1882, on behalf of Coyle, and sworn to by S. D. Houston, Jr., it appears that Houston, Jr., is a member of the firm Houston & Son. July 12, 1882, the said S. D. Houston, Jr., filed an affidavit in the local office corroborated by In order to secure a regular system in S. D. Houston, Sen., for the purpose of the administration of the foregoing law, initiating a contest against Coyle's home- your office, December 14, 1865, issued a stead entry for the land before described, circular of instructions, in respect to all alleging that Coyle had abandoned the proceedings before local officers in cases same. of alleged abandoned homestead entries, August 5, 1882, the local office, follow-defining the manner in which notice of the ing your decision of July 31, 1882, dis- contest should be given to the settler, and missed Houston's application for a contest; providing that an affidavit setting forth from which decision he appealed August the grounds of contest should be filed 7, 1882, and the firm of Houston & Son prior to the issuance of notice (2 Lester, acknowledged service of the notice of ap- 259). But in this instruction no corrobopeal for Coyle as his attorneys. October rating affidavit was required. It was suf12, 1882, you affirmed a decison of the ficient that the claimant alleged the facts local office dismissing Houston's contest. in his own affidavit. October 14, 1882, at 9:30 a. m., Daw- As the law did not provide for the payson filed an affidavit for a second contest ment of the expenses incident to these against Coyle, alleging abandonment, but contests, your office, in the circular rethe local office rejected his application for ferred to above, directed that such exa contest, for the reason that Houston's penses must be paid by the contestant. appeal was then pending; from which deci- Now, under the law and practice as it sion Dawson appealed. thus stood, the contestant acquired no October 14, 1882, at 1:45 p. m., Thomp-right by appearing and furnishing the son filed an affidavit for contest against evidence necessary to warrant action on Coyle, alleging abandonment, to which the part of the government, or by the paywas attached the affidavit of S. D. Hous- ment of the costs of the contest. The land ton, Jr., as a corroborating witness. The simply reverted to the United States, and local office refused to allow the contest, for once more became public land, subject to the same reason as assigned in Dawson's entry by the first legal applicant. But, second application; from which decision after the lapse of fifteen years, Congress, Thompson appealed. recognizing the practice of your office as Although no action has been taken by established in the matter of requiring the your office on the appeals of Dawson and contestant to pay the expenses of the conThompson from the decisions of the local test, provided, May 14, 1880, "That in all office rejecting their last applications to cases where any person has contested, initiate a contest, yet in view of the mul-paid the Land Office fees, and procured tiplicity of suits instituted and pending, the cancellation of any pre-emption, homeall involving mainly the right to contest stead or timber-culture entry, he shall be Coyle's entry, and the peculiar state of notified by the Register of the Land Office facts as disclosed by the record, I am of* * * of such cancellation, and shall the opinion that this department should be allowed thirty days from date of such now make a final disposition of the entire controversy, the whole record being presented by the appeal. Section 2297 of the Revised Statutes, following section five of the act of May 20, 1862, entitled "An act to secure Homesteads to actual settlers on the Public Domain" (12 Stat. 392) provides, "That if at any time after the filing of the affidavit as required in section twenty-two hundred and ninety, and before the expiration of the five years aforesaid, it shall be proven, after due notice to the settler; to the satisfaction of the Register of the land office, that the person having filed such affidavit shall have actually changed his or her residence, or abandoned the said land for more than six months at any time, then and in that event the land so entered shall revert to the government." July 5, 1882, you dismissed Dawson's contest, for the reason that no corroborating affidavit accompanied his affidavit for contest, as provided in Rule 4 of the Rules of Practice, as prescribed by your office, and on review, July 31, 1882, you held that Dawson's contest was a bar to the initiation of a contest by Thompson, It will be observed that under the law until a final disposition of the former was made. No appeal was taken from your as above quoted the question of abandon- notice to enter said lands." (21 Stat., 140.) By Rule 4 of the Rules of Practice, as prescribed by your office, the affidavit for contest must be accompanied by the affidavits of one or more witnesses in support of the allegations made by the contestant. From this brief review of the law and the practice governing contests of this nature, it will be seen that the right to contest an abandoned homestead entry exists in no one, but that in consideration of being placed in possession of certain information, and the payment of certain expenses, the Government holds the land in reserve for thirty days, for the purpose of allowing the person who furnished such information, and paid such expenses, an opportunity to enter the land. This is akin to the law, as it has from time to time existed, granting a moiety to the informer, of the penalty imposed upon violators of the law in criminal cases; and is operative merely as an inducement to quire the bringing in, if possible, of the par- been collected by Captain Morris, late parties, cognizant of the facts and desirous Your decision dismissing Houston's contest is affirmed, and the application of Thompson to appear as a contestant is overruled. The evidence shows that Dawson's allegation of abandonment is fully sustained, and from the record it appears that due Hence, in this case, after judgment on notice of the contest was given; hence the the merits by the district officers, it fol- homestead entry of Coyle must be adlows that you erred in your decision of judged forfeited, and cancelled accordJuly 5, 1882, dismissing Dawson's con- ingly. Although Dawson did not appeal test merely because of his failure to file corroborative affidavits in support of his affidavits for contest. You should have adjudged the case on its merits, as reported to you on the record. With respect to proceedings initiated by other parties subsequently to the initiation of Dawson's first contest, and based on the same allegations of abandonment as made by him, it is sufficient to say that the same cannot be entertained. The entire question being custodia legis, any other rule would involve the government in a multiplicity of suits to no purpose. Nor did Thompson by the purchase of Coyle's improvements acquire any right to initiate a contest, and the proof of such purchase would only serve to establish the allegations of Dawson. Weber vs. Shappell, 9 Copp's L. O., 131. The true rule in such cases would re from your decision of July 5, 1882, dis- HENRY BOOTH. Moneys collected from any of the sources men- so retained. COMMISSIONER MCFARLAND to Henry Booth, Relative to certain fees alleged to have The provisions of Section 2242, Revised Statutes of the United States, do not authorize the withholding of any portion of the salary due from the United States to the officer making such failure. By department circular "M," of July 20, 1883, the Receiver is designated as the officer to whom payment should be made of fees allowed by the act of March 3, 1883, and he is to account to the Register for his share. Captain Morris being now out of office, I have no jurisdiction to enforce the requirement against him. MINES AND MINERALS. School Sections in Territories.—Coal entries may be made on School Sections in the Territories. COMMISSIONER MCFARLAND to Register and Receiver, Salt Lake City, Utah, September 17, 1883. (E. B.) I am in receipt of the papers in the application for patent to coal land entry No. 58, made by Henry Wood, October 9, 1882, upon portions of sections 9 and 16 of the public lands of Utah. Section 15 of the organic act, entitled "An Act to establish a Territorial Government for Utah," approved September 9, 1850, contains the following: "When the lands in said Territory shall be surveyed under the direction of the Government of the United States, preparatory to bringing the same into market, sections numbered sixteen and thirty-six in each township in said Territory shall be and the same are reserved for the purpose of being applied to schools in said Territory and in the States and Territories hereafter to be erected out of the same." Do the words of the statute import a grant of said sections 16 and 36 to the said Territory, or such a reservation of them as will require further legislation by Congress to open mineral lands embraced by said sections to entry under the mining laws? August 8, 1879, Hon. Carl Schurz, Secretary of the Interior, in deciding the question, raised by the U. S. Attorney for Dakota, as to the right of the United States to bring an action for trespass upon sections 16 and 36 of public lands therein reserved by Congress for the use of |