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cause there is in it no admission by Bur- The circumstantial evidence on this and yet, as at date of Burton's settlement ton of Stover's right to the land covered point, and the only evidence concerning Stover undoubtedly laid claim to the larger hy his improvements, and it only goes to notice to Burton, appears in the testimony part of it, and as Burton recognized his show that both parties were willing to of one Vener. Vener swears that he was prior rights, the facts strongly point to avoid expense and contention.
riding along the public road in October, equitable claim by Stover to the land Further, thet estimony of Valentine, Jr., 1879, on a day not stated, and overheard bounded by the ox-bow line. It is also in and others to the fact that, long after Bur- Stover tell Burton that he must move his evidence that Burton has, from the beginton's settlement and improvements, he foundation and logs from the land where ning of the contention, stated that if, after pointed out a stake which he said was the they then were, and to the south of said survey, their improvements were found to corner of Stover's claim, and which in- road, which appears to have followed the be on this forty acres, the law would allow cluded said improvements, must be ex- present quarter-section line at that point. them to make joint entry and subsequent cluded, because it only goes to show that, How far Vener was from the parties does division; and this seems to be the proper after the dispute between the parties be- not appear, but he states that they were basis for deciding the controversy. In gan, Burton admitted that Stover claimed in loud and presumably excited conversa- Warren vs. Van Brunt (19 Wallace, 646), the land on which he (Burton) had settled; tion, and it appears that he could not dis- where the question was between two preit does not show that at date of his settle tinctly hear the words uttered, for he emptors who had improved the same forty ment there was any such claim oradmission. checked his horse in order to catch them. acres prior to survey, the court conceded
The controversy between the parties Opposed to this is the testimony of the their right to apply for a joint entry. Here originated in the following manner. When aforesaid Miller, who swears that he we have a pre-emption and a homestead Stover settled in 1879, the southern boun- helped Burton to haul his logs, and to claimant, it is true; but I think the case dury of his homestead was a line known build his house, was present during all comes within the spirit of section 2274 R.
* Storer's and Miller's south line,” working hours, and heard no such conver- S., which has in view the settlement, rather which was duly staked and recognized un- sation; but that on the contrary, Stover than the nature of the claim, when it pro til September, 1879, at least. Stover was present at times and perfectly friendly vides for the joint entry. alleges that in said month and prior to to Burton. On this evidence I do not You are directed therefore to give the Burton's settlement, he made a new south think the fact of notice prior to Burton's parties notice of their right to make a joint boundary line running to a stake which is settlement is proved ; for the facts are at cash entry of the tract in contest, and, failvery close to the southeast corner of the least doubtful, and, as it is clearly shown ing consent to this by either party within tract in contest, as subsequently estab- that Stover for years did not claim the a reasonable time, say ninety days, the lished by the official survey. The south- land where Burton placed his house, and said tract is hereby awarded to the other. east corner of the Stover and Miller line that Burton was advised of the position of
Your decision is modified accordingly. was some three hundred feet north of the the old claim line, the burden was on Stoofficial southeast corner, and on the land ver to show the new claim line and the
RIECKER VS. ALLEN. between the Stover and Miller line and the notice affirmatively, which he has not government line Burton made his settle- done.
Tender-Non-compliance with the Law.-Unless
the required money is shown and offered, there ment and improvements. Whether Stover Further, an intentional intrusion by
is no legal tonder. In view of the evidence established this new line before Burton's Burton upon Stover's land is strongly re- adduced, the pre-emption filing of Allen is orsettlement, and whether Burton had notice butted by the circumstances attending his dered canceled. of it, are the questions to be determined settlement. It is stated by him, and ad- SECRETARY TELLER to Commissioner Mc Farby the evidence. If the new line was so mitted by Stover, that prior to settling, he land, January 16, 1884. established, and if Burton had notice of it, went to Stover and offered to buy his I have considered the case of Paul Stover is entitled to the tract in contest, claim, and, failing in that, requested Sto- Riecker vs. John B. Allen, involving lot for his claim would extend substantially ver to point out his own boundaries. What 4 of Sec. 7, and lots 1, 2, and 3 of Sec. 18, to the lines of the official survey. If boundaries were then pointed out is of Tp. 14 S., R 14 E., Tucson (formerly FlorStover did not so establish the new line, course in dispute, but it is evident that ence) district, Arizona, on appeal by or if Burton did not have notice of it, then Burton's object in seeking the boundaries Riecker from your decision of September Stover is not entitled to the tract.
was that he might settle without, and not 23, 1882, in favor of Allen. Now, the only direct testimony concern- within them. It is therefore very hard to The tract in question was formerly inng the new line is a positive denial of believe that he deliberately crossed those volved in the case of John B. Allen vs. Stover's allegation that he established it boundaries the next day, in violation of John A. Justus, wherein your predecessor in September, 1879. It is shown that Mil- his manifest prior good faith.
rendered decision November 12, 1880, in ler, whose claim joins Stover's on the east, And finally, it is proved that before favor of Allen. being doubtful about his own boundaries, Burton settled, he and Stover ran a new It appears that Allen filed declaratory ran a line from the meridian in September, line from what is called “the ox-bow cor- statement No. 395 for the tract, October 1879, that he found his southwestern cor- ner." and near to the old Stover and Miller 27, 1877, alleging settlement the same day; ner very close to where the official corner line, between their claims. Miller swears that Justus filed declaratory statement was afterwards established, and that the distinctly and circumstantially to this fact; No. 637 for the tract May 15, 1879, allegstake subsequently claimed by Stover as Stover admits that he was there assisting, ing settlement the day previous; and that the corner of his new line, was then driven. and Bartlett, one of his own witnesses, Riecker filed declaratory statement No. Stover was present, and Miller swears pos- swore on cross-examination that he saw 812, for the tract November 11, 1881, allegitively that he then disclaimed the new them running it. On this line Burton ing settlement February 27th preceding. line by declaring his belief that it was er- afterwards set his north fence; just beyond A contest ensued between Allen and Jusroneous, and that the old line was correct. it was run a new public highway, and on the tus to determine which had the better This testimony Stover, when on the stand, north side of the highway Stover built his right to the land, and to that end a heardid not deny ; and he produced no witness fence. On this evidence there is no doubt ing was had at the Florence local office to show that then, or prior to Burton's in my mind that Stover did not, in Octo- December 15, 1879; but Justus having resettlement in October, 1879, he laid claim ber, 1879, claim the land on which Burton linquished his claim before your predecesto the land bounded by a line from this settled, and consequently that he has no sor considered the case, his filing was new corner. This adverse testimony, and right to it now as a prior settler.
thereupon canceled. Nothing therefore his failure to produce any direct testimony The question remaining concerns the remained to be considered by your office contradicting it, is fatal to his case, unless proper disposition of the tract in contro-save Allen's personal qualifications and the circumstantial evidence in his favor is versy. It is the smallest legal subdivision, good faith as a pre-emptor, which the unusually strong.
and hence cannot be divided between them; aforesaid decision of November 12, 1880,
held to be sufficient" to warrant the allow- been allowed, and that Osborn, who subsequently become convinced of Allen's ance of his entry.”
" claims to be Allen's attorney," admitted inability to consummate his title to the No appeal was taken from this decision, that the latter had sold his entire interest land in question by reason of his sale and and as there was no adverse claim to the in the premises. In such letter he states abandonment of the same, he applied to land extant at that time, the Register and (inter alia): “Mr. Osborn again visited file therefor September 15. 1881, and that Receiver were instructed to allow Allen this office on Saturday, the 28th inst., and at that time he was the sole occupant of to make final proof and payment therefor, confirmed common report as to Allen['s] the land, save some families which froin conditioned upon his showing full compli- having sold on January 31st, 1881, his time to time occupied the house of Mr. ance with legal requirements.
entire interest in the land, and improve- Allen.” At the time said decision was rendered, ments covered by his pre-emption filing In your decision of September 23, 1882, the office of Register was vacant, the for- No. 395, for Lot 4, Sec. 7, and Lots 1, 21 you hold, under authority of the U. S. mer incumbent (C. M. K. Paulison) hav- and 3, Sec. 18, Tp. 14 S., R. 14 E. * * Supreme Court's decision in the Yosemite ing been suspended therefrom by the As stated, the public became acquainted Valley case, (15 Wall., 77), that your prePresident October 4th preceding, and the with the facts in this Allen case, and two decessor's decision of Nov. 12, 1880, Receiver (C. E. Dailey) was acting as parties have presented their declaratory final and conclusive as to the title of Allen Register ad interim, pursuant to the Act statements and made filings on this land, to the land," and that in the light of the ing Commissioner's order of the day fol. believing that Allen has forfeited his testimony in the former case and this, it lowing. See Departmental decision of claim, and the land had reverted to the appears that he, having complied with 18th August last, in re Dean Richmond Government."
legal requirements in point of proof and Mine (9 COPP, 114), for the minutiæ of It having thus transpired through this payment, became entitled, upon the rendisuch suspension. But your office directed and various other authentic sources, that tion of your predecessor's decision,“ to a the Receiver, per telegram, dated Novem- Allen had sold and conveyed his entire certificate and receipt without further acber 15, 1880, to receive neither filings nor claim to one Dr. C. H. Lord, subsequently tion on his part;" that as none of the entries, whereupon the office was practi- to the rendition of your predecessor's de- alleged or actual sales of his land were cally closed. December 1, 1880, the Re- cision of November 12, 1880, to wit: by made by Allen," until after the promulgaceiver notified Allen of said decision of deed dated January 31, 1881 (alleged to tion of your predecessor's decision, and as November 12th preceding, and advised have been only recorded in the office of no fraud had been alleged at the date him that his entry would be admitted as the Recorder of Deeds, Pima county, thereof, all subsequent proceedings were soon as the office was re-opened.
Arizona), and Allen having applied to null and void; that his final entry papers April 27, 1881, the newly appointed you July 23, 1881, for permission to com- should be issued to him without delay, Register (Henry Cousins) entered upon plete his entry (stating that the district and that the warrant in question, duly the discharge of his duties. May 2d en- officers had denied his application), you certified by your office, and then in the suing, one W. J. Osborn, Allen's attorney, thereupon, August 10th, ensuing, ordered local office, should be “accepted nunc pro appeared at the local office and ten- an investigation touching Allen's compli- tunc, as due and sufficient payment for the dered Military Bounty Land Warrant No. ance with the requirements of Section land." 113,841 in payment for the land or for lo- 2262, R. S., and in view of the filings It is quite manifest, however, that your cation in his name, but by reason of cer- already admitted, directed the Register predecessor's decision aforesaid was based tain patent irregularities on the warrant, and Receiver to cite all parties in interest upon equitable rather than legal grounds; the Receiver was not quite satisfied as to to appear at the local office upon the day and that Justus having relinquished his its genuineness, and accordingly merely to be fixed for the hearing.
claim, the case was regarded as one solely receipted therefor on this wise: “ To be September 15th ensuing, Riecker ap- between the government and Allen, held for consideration, and to be returned plied to file his D. S., but the Register wherein the exaction of a literal complior received in payment of land of Jno. B. and Receiver rejected the same. His ance with legal requirements might be Allen, if all right." May 27, 1881, the filing was, however, received November waived without militating against any adReceiver transmitted the warrant to your 11th, pursuant to your letter of Novem- verse rights of third parties. And this, office, calling attention to the indorsed ber 3, 1881. Citation having duly issued, upon the assumption that he would thereassignments and to the word " located,” hearing was accordingly bad December after comply with such requirements, in stamped thereon, and asking for instruc- 14th ensuing, but only Riecker and Allen point of inhabitance and improvement, as tions touching such tender. He stated appeared. It appears from the testimony a basis for proof, payment, and entry. that in view of its appearance and of cer- adduced, that Allen repudiated both of But it will be shown that he has failed to tain other matters referred to by bis letter the aforesaid tenders, testifying categori- comply either with the law or regulations, of September 14, 1880, we decline to cally that he had not authorized Osborn and that by reason of his laches and bad receive it in payment of Allen's claim, to make them, that under date of Decem- faith this second contest was initiated. without first having referred it to the ber 18, 1880, he executed a power of at It will be observed that although Allen Commissioner, and obtaining his opinion torney to one James Buell, authorizing admits that he executed a power of atas to its value and character.” He also him to sell and convey “lots in blocks torney to Buell, the survey procured asked for “ indorsement and certificate of numbered 33 and 34, as shown by map of ostensibly by Dr. Lord was really made at good character, and instruction relating Buell's addition to Tucson * * * dated bis instance, and that he saw copies of the to the same.”
September 1, 1880" (which plotting is plat thereof posted at various places In his letter of May 27th, the Receiver shown to have been procured by the said throughout Tucson, (the same having stated that it was matter of public notori- Lord at Allen's instance), such plat being been published in a newspaper of that ety that Allen had sold and conveyed bis according to a certain town-lot subdi- place), he nevertheless denies that he had interest in the land, and that the same vision of the northwest corner of Allen's such plat prepared, or that he had any had been subdivided into town lots, which claim; that pursuant to said power, his knowledge thereof. It is true he testified were being disposed of by one Dr. C. H. attorney-in-fact sold and conveyed to subsequently that he had revoked said Lord. Although the Receiver did not Paul Riecker, by deed bearing date De- power of attorney; but as there is no legal mention any adverse claims, the record cember 28, 1880, certain parcels of land proof of such revocation, the power must discovers, however, that he had already known and distinguished on said plat as be regarded as extant. But whether he allowed two filings, to wit: May 23d, that lots numbered 1, 2, 15 and 16, in block has revoked the same or not, Buell testiof James S. Douglass, and May 27th (the numbered 33 in said addition; that Riecker fied that he sold and conveyed twentydate of his letter), that of George P. purchased said premises upon the advice four lots in said subdivision pursuant to Howe. May 30th, he wrote you a confi- and belief that Allen was seized of an in- such power; and it is quite manifest that dential letter stating that two filings had defeasible title to the land, but having as the deeds thus executed by Buell are
still outstanding, any title that Allen 14 S., R. 13 E., (Florence district), Feb- Thus it appears that at the time of the might acquire in the premises would inure ruary 24,' 1873, alleging settlement Febru- alleged tender, said warrant was actually to the benefit of his grantees. If this be ary 20, 1867, and bad relinquished the located upon another tract of land, and so, he can not truthfully take the oath same September 30, 1875. Hence it would that such location remained valid and sub. prescribed by section 2262 of the Revised not seem to be among the probabilities sisting until August 13, 1880, or upward Statutes, and being thus disqnalified he is that such tender was ever made as alleged. of six months subsequent to the date of precluded from complying with its express Decision was not rendered by the local the alleged tender. requirements. Hence, in order to permit officers until July 28, 1880, the Register The invariable rule is that such warrants him to consummate his claim in his pre- deciding for and the Receiver against Al- are not re-locatable until they have been sent status, it would be necessary to len. The existence of such a state of facts duly certified by your office. And it is an ignore the explicit prohibition prescribed does not justify the assumption that Allen elementary principle of law that a tender by said section.
paid or offered to pay for the land, but is invalid unless made to a duly author. Your instructions of August 10, 1881, renders it wholly improbable. Such view ized person, whose province it is to rerequired him to purge himself of all dis-is sustained by the fact that the Register ceive it. Such person was the Receiver, qualifications imposed by said section "in (Paulison, who decided in his favor) did to whom the alleged tender should have the event of the alleged sale being proved.” not so much as advert to such tender, and been actually made, and not to the Reg.
The aforesaid deed, dated January 31, there is not a scintilla of admissible evi- ister as alleged. A mere offer to pay is 1881, from Buell to Lord, pursuant to said dence tending to show that it ever was not a tender (See Starkie's Evidence, 778). porer of attorney, was quit-claimed by made ; but on the contrary, the Receiver To constitute a valid tender of money the Loril under date of July 12, 1881 (as such (Levi Ruggles), to whom such tender party must produce and offer the money deed appears in evidence to have been duly should properly liave been made, swears tendered. (1 Cranch C. C. Rep., 263.) executed by him and his wife in New York categorically that no such tender was ever "The word imports not only a verbal offer. City before a Commissioner for Arizona made to him, or to the Register in his but a corresponding corporeal act, as by Territory). It appears, however, that un- presence. The only testimony touching producing and showing the amount; and der date of February 8th preceding, Lord the alleged tender is that of Allen and this is strictly sustained by its etymology conveyed lots 7 and 8 in block 2, to one Buell, both of whom are interested parties; -—the Latin tendere, from which it is deL. B. Allen and J. W. Henderson, which and their testimony should, therefore, be rived, signifying to stretch or hold out, to title, according to Buell's testimony, is regarded charily; especially their version extend, implying that what is tendered is still outstanding, and operates, of course, of the deceased Register's declarations re- held out to the party for his acceptance, to preclude Allen's right of entry. As le- garding the sufficiency of the tender in the party tendering thus representing both fore stated, the Register and Receiver ad- question. It is aptly suggested that “ the by word and act, not only his willingness vised him December 1, 1880, that his entry dead Register Paulison was dragged out but his readiness to do all in his power to would not be admitted until the district of his grave and made to do service as a satisfy the demand.” (See Burrell's Law oflice was reopened; but notwithstanding witness for Allen." "The general rule of Dictionary, also Bouvier's.) Thus it apsuch advice he attempted at the hearing to law rejects all hearsay reports of transac-pears that it was not only legally, but extenuate his action in selling the land, tions, whether verbal or written, given by physically, impossible for Allen to tender by claiming that he supposed his entry persons not produced as witnesses." (1st said warrant as alleged. I am therefore complete, and that he had a right to con-Greenleaf, 6 ed., 165.) And “courts of of the opinion that he never tendered the vey the land. In support of such pretense justice lend a very unwilling ear to state- same, but that if such tender were granted, he stated that in January, 1880, he depos- ments of what dead men had said" (Lea vs. I should be constrained to regard the same ited an assignment of the aforesaid Land Polk Co., etc., 24 Howard, 504 ; vide also as illegal and invalid, and that by reason Warrant made by Jesus Montijo, with Chief Justice Marshall, in Mina Queen vs. of the aforesaid sales and conveyances, Register Paulison, and requested that it Hepburn, 7 Cranch, 290-296).
whereby the title which he might othershould be accepted in payment for the Moreover, the history of said warrant wise acquire from the United States would land.
as discovered by the indorsements thereou inure to the benefit of other persons than Upon the issue presented by the fore- and corroborated by the records of your himself, he is precluded from entering the going statement of fact, the sole question office, precludes the possibility of such ten-tract in question pursuant to section 2262 to be determined is: Can such act be re der having been made as alleged. It ap- of the Revised Statutes; that there has garded as a tender of the price of said pears therefrom that the warrant was not been a substantial bona fide compli. land? Or, in other words, when Allen issued in the first instance February 2, ance with legal requirements, neither is appeared at the local office in the first in- 1875, to one Nelson Van Alstine, for ser- there a scintilla of evidence tending to stance to make his final proof and pay- vices in the Mexican war, pursuant to the show that the error or informality (with ment, did he make such tender, and if so, act of March 3, 1855 (10 Stat., 701). Van which this case is replete), arose from igwas there such an acceptance by the Reg. Alstine assigned it to one Samuel Hughes, norance, accident, or mistake; nor is the ister and Receiver as relieved his claim who assigned same to Jesus Montijo. He same satisfactorily explained. Hence, there from forfeiture by reason of his subse- subsequently, September 24, 1873, filed is nothing in the premises to serve as a quent sale in question? If so, Allen had declaratory statement No. 6 for the N. W. statutory basis for submission to the by virtue thereof acquired such a vested of sec. 31, Tp. 13 S., R. 15 E., and made Board of Equitable Adjudication. right in the premises as entitled him to final proof and payment July 26, 1875, As before stated, you based your decis. sell and convey the same. It appears, paying for the land with said warrant, ion upon authority of the U. S. Supreme however, from the records of your office, Register and Receiver No. 2, Florence, Court's decision in the Yosemite Valley that at the date of the alleged tender the Arizona. Under date of January 10, 1876, Case. It was held, however, by this Deland was in contest between Allen and Montijo sold the tract to defendant, Allen. partment under authority of the case cited, Justus (supra): that no award had been Such location was canceled August 13, that "even a qualified pre-emptor acquires made, and that there was nothing in the 1880, the warrant assigned to him Febru- no vested interest until he has inade proof case at that stage of the proceeding to jus- ary 3, 1881, and certified by your office of his compliance with legal requirements tify the presumption that the contest August 10th ensuing, when it was returned and paid for the land.” See McMurdie vs. would result favorably to him, inasmuch to the local office, per your letter of that Central Pacific Railroad Company (8 COPP, as he had shown but a meager compliance date, which concluded as follows: "I re- 36). Inasmuch as Allen las failed to comwith legal requirements in the premises, return herewith warrant No. 113,841, duly ply with these prerequisite requirements, while it was in evidence, and he admitted, certified, which may be received in pay. the authority upon which you base your de that he had filed declaratory statement ment for the land, if you shall deem it cision in his favor can not properly be cited No. 365, for the N. E. of Sec. 10, Twp. 'proper to allow the entry.”
in support of his claim, but contrariwise. It appears from your letter of the 10th sion that Duncan was “mentally helpless trees, the injuries to which, if not now in a ultimo, transmitting the aforesaid warrant, when he signed the said relinquishment. healthy condition, are the result of drought, that Allen finally located the same upon It appears that Duncan was in the habit hail-storms and tire; that there is a good the premises January 10th last, as is evi- of indulging in what some of the witnes- frame house on the tract, with other valuable denced by the Register and Receiver's ses denominated as "periodical drunks." improvements, and that there has been no certificate of location, accompanying the That on September 8, 1881, he was con want of good faith in respect to compliwarrant. Such procedure was irregular fined to his bed, as the result of such a ance with the law. and in violation of your office regulations, debauch, and while in a drunken stupor, There are other reasons why your dewhich invariably in such a case prohibit being sufficiently revived by the adminis- cision must be sustained. The third seclocations pending contest. It was not tration of liquor, he sat up in bed and tion of the act of June 14, 1878, restricts therefore competent for said officers to signed said relinquishment, and at the a contest against a timber culture entry to admit such location, and you will accord- same time executed a deed of his home one who applies to enter the tract at the ingly direct that both Allen's filing and stead to a daughter, who it seems returned date of initiating it. (Bundy vs. Living
With respect to Riecker's claim, I am 2. J. Davis is a step-son of Durean, and section, "prescribing" who may make an of opinion that he has evidenced his entire a former claimant for this land, as appears entry and how it may be made, provides good faith, and his filing will accordingly from the record, and at his solicitation that a person applying for its benefits must stand intact, subject to final proof and the relinquishment was obtained. L. M. file an affidavit that he is the head of a payment.
Campbell is a friend and fellow-employé family, or twenty-one years of age, and is Your decision is accordingly reversed, of Davis, who admits that he made the a citizen of the United States, or has defor the reasons therein and herein stated. entry on the suggestion of Davis. It ap- clared his intention to become one; that
pears that Campbell bas never seen the his filing and entry are made for the culti
land covered by his entry, and that since vation of timber, and for his own excluTIMBER CULTURE.
said entry Davis has exercised control sive benefit; that it is made in good faith, DUNCAN VS. CAMPBELL. over the land.
and not for the purpose of speculation, or Mentally Ilelpless-- Relinquishment Improperly
I am of the opinion that the relinquish- directly or indirectly for the use and Obtained. A relinquishment obtained whilo ment was fraudulently obtained by Davis, benefit of any other person or persons; the claimant was in a drunken stupor, and ob- in order that he might regain control of that he intends to hold and cultivate the jected to afterwards, cannot be considered a the land, and that no equities appear of land, and to fully comply with the provoluntary act.
sufficient gravity to warrant any conclu- visions of the act, and that he has not SECRETARY TELLER to Commissioner McFar- sion favorable to Campbell's entry. heretofore made an entry under the act or land, January 8, 1884.
Your decision is therefore affirmed. the acts of which it is amendatory. I have considered the case of Oliver P.
Scott has filed an application to enter Duncan vs. L. M. Campbell, as presented by Campbell's appeal from your decision
Scott VS. LIEDTKE.
the tract under the provisions of this act,
but no affidavit. It does not, therefore, of July 14, 1883, holding for cancellation Abandoned and Divorced Wits - Head of a Famthe said Campbell's timber culture entry
ily, Proper Application -Tae husband made appear that he is qualified to make the for the.S. W. of Sec. 34, Tp. 10, R. 8
timber culture entry, anu abandoned the land entry, or that he intends to comply with
and his family. His wife procured a divorce, the requirements of the law, or that bis W., Lincoln, Nebraska, and re-instating and defends the present action as the head of rights are not already exhausted. His ap. Duncan's timber culture entry for said a family and guardian for the children. She plication is wholly incomplete, and of no tract,
has no legal relations with the defendant From the record it appears that C. J.
otherwise. Proof of compliance with the law more legal significance than if he had
is held sufficient. Plaintiff's application is made none, and is consequently ineffectual Davis filed declaratory statement for this held defective because unaccompanied by the for the purpose of an entry. Having tract June 3, 1873-canceled April 15, required affidavit.
therefore failed to make a legal applica1882. That Caspar J. Davis made timber SECRETARY TELLER to Commissioner McFar- tion to enter the tract at the date of initiaculture entry therefor March 9, 1874- land, December 31, 1883.
ting his contest, it must be dismissed canceled for voluntary relinquishment Oc- I have considered the case of W. T. under the ruling cited. tober 9, 1878. That Oliver P. Duncan Scott vs. Fred. W. Liedtke, involving the Your decision is affirmed. made timber culture entry therefor Octo- latter's timber culture entry of March 16, ber 23, 1878—canceled for voluntary re- 1874, upon the N. E. # of Sec. 2, Tp. 12, linquishment October 10,1881. That Lem- R. 2, Lincoln, Nebraska, on appeal by
BUTTERY vs. SPROUT. uel M. Campbell made timber culture Scott from your decision of February 20, Timber Culture Contest-A Pre-emptor has no entry therefor October 10, 1881. 1883, dismissing the contest.
Preference Right-Illegal Contest.- Where a March 17, 1882, the local office trans- This contest was initiated June 8, 1882,
pre-emptor seeks to contest a timber culture
entry, such attempted contest confers no premitted the affidavit of Oliver P. Duncan, upon allegations that Liedtke had aban
ference right, and is no bar to a subsequent in which it was alleged that he had duly doned the tract, and had also failed to contest properly initiated by a homestead or complied with the requirements of the comply with the law in respect to the timber culture applicant. law, in the matter of his timber culture planting and cultivation of trees.
SECRETARY TELLER to Commissioner Aic Farclaim, that “he never in fact relinquished It appears that Liedtke abandoned his land, January 4, 1884. his said entry, or intended so to do, and family in October, 1880; that in November, I have considered the appeal of George whatsoever may appear thus to be was 1881, his wife was divorced from him for Buttery from your decision of February obtained by fraud and surreptitiously, and extreme cruelty, violent temper, vicious 15, 1883, dismissing his contest against without consideration,' and asked that a habits and of threatening to kill;" that Charles H. Sprout's timber culture entry hearing be allowed with a view to the can- the "custody, care, education and control" No. 3342 (Fargo Series) of the N. W. of cellation of Campbell's entry, and the re- of her children was confided to her exclu- Sec. 26, Tp. 151, R. 53, Grand Forks, instatement of his own.
sively, and that in August, 1882, she was Dakota. By your letter of May 3, 1882, a hear- appointed their guardian. She defends It appears that Sprout made said entry ing was ordered for the purpose of ascer- the present proceedings in that capacity, September 29, 1879; that Buttery initiated taining the facts in the premises, and the and as the head of a family.
contest against the same December 13, local oflice designated June 20, 1882, as Your elaborate review of the testimony 1882, filing an affidavit alleging Sprout's the day for such hearing.
shows that there are over one hundred failure to comply with legal requirements, From a careful review of the evidence acres of the tract under proper cultivation, and an application to pre-empt the land, submitted, I fully concur in your conclu-thirty-five of which have been planted to alleging as a reason for making such application that he had exhausted his home- view is sustained by the doctrine of the
WHEELAN VS. TAYLOR. stead and timber culture rights.
well known maxim, “ expressio unius est Second Contest.-A contest on other grounds or January 18, 1883, John Jeorgus pre exclusio alterius," which is especially ap
by a different party should not be allowed sented an affidavit of contest against said plicable to the interpretation of a statute. while an application to contest is pending. entry, but the Register and Receiver re- " Where, for example, certain specific Preference Right.— No preference right is acjected the same because Buttery's contest things are taxed, or subjected to any charge,
quired by a contestant who alleges and proves
fraud in the initiation of a timber-culture enwas pending. Jeorgus appealed, and your it seems probable that it was intended to
try. The contestant who shows non-complioffice sustained his appeal; holding that exclude everything else even of a similar ance with the timber-culture law alone acthe third section of the act of June 14, nature-a fortiori, all things different in quires such right. 1878, clearly restricts contests brought genus and description from those which SECRETARY TELLER to Commissioner McFarland, thereunder to parties claiming and quali- are enumerated. So, it is agreed that January 10, 1884. fied to enter land subject to the homestead mines in general are not rateable to the I have considered the appeal of James law or said act, and Mr. Buttery was, not poor within the stat. 43 Eliz., c. 2, and N. Wheelan from your decision of May being so qualified, not a legal contestant, that the mention in that statute of coal 12, 1883, rejecting his application to conand his case should not bar that of mines in not by way of example, but in ex- test the timber culture entry of Henry M. Georgus (Jeorgus) who appears to possess clusion of all other mines.” (Broom's Taylor, upon the S. W. of Sec. 4, Tp. 1, all the necessary qualifications of a con- Legal Maxims, 7th edition, p. 665.) R. 26 E., Bozeman, Mont. You also testant.
I doubt not, therefore, that Congress transmit, for consideration with the appliSection 3 in question provides " that if intended the 3d section of the act of 1878 cation by Wheelan, the respective appliat any time after the filing of said affidavit, to restrict the right of contest thereunder cations of John R. King, Harry H. Holthe claimant sball fail to comply with any to certain species of claimant's expressly lidge, and Henry W. Foster to contest of the requirements of this act, then and named, to wit : homestead and timber cul- the same entry of Taylor, each of which in that event such land shall be subject to ture claimants; and to them only upon the was rejected by the local oflicers. entry under the homestead laws, or by condition precedent that they file an ap- It appears that Taylor made his entry some other person under the provisions of plication to enter the land themselves. April 28, 1882, and that Wheelan, alleging this act” (20 Stat., 113).
The contrary view could only be sus- Taylor's non-compliance with the law in It is true that the identical question tained upon the assumption that said act respect to the first year's work, applied, presented by this appeal was considered conferred, by implication, other rights and April 28, 1883, to contest the entry. The by my predecessor Mr. Secretary Schurz, privileges than those conferred by the local officers rejected the application for in the case of Tewksbury et al., vs. Mc- pre-emption law itself, which prescribes a the reason that, at the date thereof, the Peck (4 COPP 54), wherein he said touch- previous settlement upon the tract as a first year following Taylor's entry had not ing the 3d Section of the Act of March 13, condition precedent to the right to file a expired. On appeal you affirmed the 1874, (18 Stat., 21,) which contains sub- declaratory statement therefor. Compli- same, and he further appeals to this Destantially the same provisions as the act ance with such prerequisite requirement partment. I think your decision was corof 1878: “The obvious purpose of this would be manifestly impracticable in the rect. In computation of the first year folsection is to provide for the cancellation light of the well-known doctrine that a lowing an entry, the day of entry should of all entries where the claimant fails to valid entry of land segregates the same be excluded. Taylor had therefore the comply with the law, and to give the per- from the public domain, so that such land whole day of April 28, 1883, within which son who successfully contests an entry a is not again subject to any other claim to perform that year's work, and a contest preference right to enter the land under under the same or any other law until could not be initiated against him prior the Timber Culture or Homestead laws. such entry be canceled in the manner pre- to the 29th. This contest was, therefore, There is nothing in the act above cited scribed by law. Wilcox vs. Jackson (13 prematurely brought, and I affirm your which in express terms prohibits pre-emp-Peters, 516), and Witherspoon vs. Duncan decision in that respect. tion filings on this class of lands, and the (4 Wallace, 218).
It also appears that on rejection of this question is, has Congress by granting a This doctrine was recognized by the application by the local officers, Wheelan preference right of entry to those who ex- Department in the aforesaid case of Tewks- forthwith appealed therefrom, pending pose an abuse of law, thereby, by implica- bury et al. vs. McPeck; for it should be which, and on the same day, he filed tion, repealed the pre-emption laws and observed that there the timber culture en- another application to contest Taylor's excluded these lands from pre-emption try of Omer Morehouse had been canceled entry, alleging that it was made in behalf entry.
There are no express for abandonment April 28, 1876, at Tewks- of other persons, and therefore subject to words of repeal in the act under considera. bury's instance; and McPeck did not file forfeiture as fraudulent under the law. tion, and the two laws are not antagonistic, his declaratory statement (for the land A hearing was ordered on this complaint, inconsistent, or repugnant to one another. which had been thus abandoned) until which after due publication of notice, was I am, therefore, of opinion that this class May 15th ensuing, nor did he allege set- held June 16th following. There was no of lands may be entered under the pre- tlement until May 12th. And as no ad- appearance in behalf of Taylor. The tesemption laws, although the preference right verse right had intervened meantime, my timony showed that he died in January, is always with the homestead or timber cul- predecessor held aright that said land was 1883, without having in any respect comture claimant who successfully contests the subject to his filing. But in the case at plied with the law, and that no one in his former entry.”
bar it should be observed that Sprout's behalf had thereafter complied with it. It should be observed that while it was entry had not been canceled when Buttery The allegations of fraud were also satisunquestionably competent for Congress to initiated contest and applied to file for the factorily sustained. repeal the pre-emption laws, pro tanto or premises. It was not competent, there- It is well settled that a contest against otherwise, I concur with my predecessor fore, for him to initiate contest as he did.. a timber culture entry cannot be initiated in the opinion that no such repeal was Such contest was initiated without anthor- pending a prior contest. The first must either expressed or implied. But the ity of law, and must be regarded as nil. be adjudicated to final decision before a question of repeal is impertinent to the Hence it was competent for Jeorgus to in- second is allowable; and in this respect it issue in this case. It is simply a question itiate contest as he did, and he must be is immaterial whether the second is cominvolving the construction of the express regarded as the first legal contestant. See menced by the same party upon different language of a special statute, the manifest my decision rendered November 3d last allegations from those alleged in his first, intendment whereof is to subject certain in the case of Wilson vs. French (10 Copp, or whether it is commenced by another entries thereunder to contest by a certain 275).
person. One is equally, a new contest class of contestants, upon whom the pre- I accordingly afirm your decision for with the other. It follows that Wheelan's ference right of entry is conferred. Such 'the reasons herein stated.
second contest, pending his first (or which