1881, and judgment against him was ren- case of John Dillon, (Copp's Public Land tablished, the Supreme Court has decided the case of Vance vs. Burbank, (101 U. S., The act of June 15, 1880, creating the 514), and therein enunciated a doctrine right of purchase, expressly limits it to which must govern this class of cases in "persons who have entered lands," or the future. The doctrine is directly aptheir transferees. The right of a deserted plicable, for that case was a suit in equity, wife to purchase must be decided on the with strong equities in favor of the orphan same principles as those governing the children of a deceased settler, claiming question of her right to make final proof. through his deceased wife, their mother. As the right of purchase is limited to two It arose under the Oregon Donation Act, classes of persons, and since she is in- which not only gave the husband the right cluded in neither class, it is clear that she to acquire certain land, but declared that, has no right of purchase by virtue of her when acquired, one-half of it should inure If a deserted wife may have the right of husband's entry. to his wife, "to be held by her in her own purchasing her husband's entry under It is to be observed that your decision right." But the husband there had not said act, she can obtain it only by virtue concedes the right of purchase to a de- done all the acts which the law required of her legal identity with him, as his wife serted wife, for the reason that the prac- in order to acquire the land-as, in the or his agent, and therefore she can have tice of your office concedes her the right case now before me, Colby had not conno greater right than her husband can of making final proof; and I admit that if tinued to reside on the land, or made aphave. Under the ruling of this Depart- there is good cause for conceding the lat- plication to purchase it-and, in ruling ment in the case of Charles W. Wright, ter, there is equally good cause for con- against the claim of the wife and her chil(10 Copp, 324), Mrs. Colby's husband ceding the former. If this right of pur-dren, the Court said: "The settler is made would have had no right of purchase on chase is permitted, it follows that any by the statute the actor in securing the June 19, 1882, as against the contestant, right hereafter given to the entryman must grant. When this is done, and he befor the reason that judgment against him also be allowed by the Land Department comes entitled to the grant, his wife takes had become final. Consequently Mrs. to his deserted wife, and it is therefore her share in her own right, but up to that Colby herself could have had no right of important that the authority for the conpurchase on said date, and her cash entry cession of the right of final proof should should therefore be canceled. be examined. If the practice of your office in this regard is unfounded, it should cease, for it inevitably leads to other and wider departures from the law. Consideration of the case might cease at this point, were it not for the fact that your said decision has been published, (9 Land Owner, 116), and has thus widely disseminated the doctrine that a deserted wife may in her own name prove up, and, under the act of June 15, 1880, may in her own name purchase her husband's homestead, a doctrine to which I find myself unable to assent, and which is hereby overruled, for the reasons stated below. It appears from the case of Keziah Card, (2 Land Owner, 50), that the practice of your office has varied, and, from the case of Thompson vs. Anderson (6 Land Owner, 125), that it crystallized into the existing practice in 1878. In the latter case the ground of the decision is that Rule 27 of the rules of the Board of Equitable Adjudication recognizes the wife's equities We are dealing here with the legal rights and affords her relief. The reasoning is of a deserted wife, (for even equity cannot unsound, first, because if the wife has no create a right which the law denies), and, legal rights, she can have no equities, if there is such a right, it must be found and second, because said rule becomes in the language of the statute. And not operative, not in all cases where the wives only so, but, since it is claimed only under of entrymen have been deserted by their a law creating a right, the case must be husbands, but in one case only, namely, brought strictly within the law. The law in an ex parte case where the wife has with regard to final proof is found in sec- been allowed to make final proof for the tion 2291, R. S., which provides that, entryman. The rule does not purport to when land is entered for homestead pur- establish the practice of permitting a deposes, final proof may be made by "the serted wife to make proof in her own right, person making such entry-or, if he be but simply declares that final proof may dead, his widow-or, in case of her death, be made by her, and her husband's entry his heirs or devisee." It seems to me in- confirmed, where there is no adverse disputable that, if a married man makes claim. But your practice treats his entry homestead entry, the statute expressly re- as her entry, and shuts off all contest, fuses recognition to his wife until she be- not only at but before date of final proof. comes a widow; the fact that she is not To extend the jurisdiction of the Board mentioned as a wife, and that she is men- thus is to violate the express provisions of tioned as a widow, renders any other con- law, (Section 2457, R. S.,) and it is not to clusion impossible. Since Congress pro- be presumed that such was the intention vided for her, and provided for her only as of the authors of Rule 27. A law which a widow, it is clear that they did not intend remedies an evil resulting to the entryto provide for her in any other manner. man, is not to be construed as remedying In the case under consideration the wife an additional evil resulting to his wife; is not "the person who made the entry," and therefore Rule 27, based on said secor "his widow; " and it follows that she tion, is not to be construed as sanctioning cannot make final proof or obtain patent the illegal practice of allowing a deserted in her own right, by virtue of her hus- wife to acquire rights under her husband's band's entry. So it was long since sub- entry. stantially ruled by this Department in the l Since said rules and practice were es time he alone makes the claim. His acts affecting the claim are her acts; his abandonment, her abandonment; his neglect, her neglect. As her heirs must claim through her, whatever would bar her will necessarily bar them. The Land Department, until the final proofs are made, knows only the husband. If contest arise, he is the party to be notified. He represents the claim, and whatever binds him binds all interested through him in the questions to be decided." If, therefore, in such a case, where statutory rights are expressly given the wife, he alone represents the claim during his life, a fortiori he alone represents a homestead claim, and the right of final proof, commutation, or purchase resting upon it, where no statutory rights are given to the wife. In thus overruling your present practice, I am not unmindful of the expediency of indicating the proper practice in such cases, whether the wife has already been recognized or claims recognition hereafter. This decision, then, shall not be construed to affect any case where the deserted wife has been permitted to make final proof, commutation, or purchase, prior to its promulgation by your office. For all other cases of desertion, the following rules are prescribed: 1. Where the entryman has established a residence and placed his wife upon the land, no one but his wife shall be heard to allege the desertion, in proof of his change of residence or abandonment, during the period of seven years from date of the entry, provided that she maintains a residence on the land. 2. Within seven years from date of the entry, if the wife, maintaining her residence on the land, shall allege and prove her husband's desertion of her, said entry shall be canceled, and she shall be permitted to enter the land in her own name, provided that she is the head of a family, or that she has the legal right to acquire real property as a feme sole. 213, and notes), or where it is exercised for his benefit, (Schouler's Domestic Re3. At the date that final proof of the lations, 2d Ed., 330;) and I think it is husband's entry is required by the laws particularly applicable to the homestead and regulations, if the deserted wife has laws, whose prime object is to settle a not made entry, as above provided, she family on the public land, and to supply shall be permitted to make final proof as them a home. It may be added that, her husband's agent, and in his name, where a child comes of age after the de(except that her affidavit of non-alienation sertion, it is competent for him, equally shall cover her own and and his acts;) with the rest of the world, to contest the and his entry shall be regarded as sus- entry for abandonment. pended, and shall be referred for confirmation to the Board of Equitable Adjudi cation. 4. A deserted wife may, as her husband's agent, commute his entry or purchase it under the act of June 15, 1880; and the entry shall be regarded as suspended, and shall be referred for confirmation to the Board of Equitable Adjudication. 5. Where the entryman's wife is deceased, the foregoing rules shall apply to his child, who is not twenty-one years of age at date of the offer to purchase, commute, or make final proof as an agent, or at date of the offer to enter; provided that in the latter case the child shall be the head of a family. it. Your decision is reversed, and you are directed to promulgate these instructions to the several local officers. ACTING SECRETARY JOSLYN to Commissioner Mc Farland, January 30, 1884. ARNOLD VS. COFFEY. Destruction of Crops.-It is competent for a I have considered the case of Charles C. Arnold vs. Thomas J. Coffey, involving the S. E. of Sec. 1, R. 3, Tp. 25 W., Bloomington, Nebraska, on appeal by Arnold from your decision of August 10, 1882, dismissing his contest. It appears that Coffey made homestead entry Number 8412 for said tract on March 31, 1880, and in May following partially put up a cabin and broke some ground. On July 26, 1880, he gave notice to the local officers that he had planted six acres of corn in the spring, which had failed because of continued drought, and that he desired to take advantage of the Statutes, 543). Said act allowed him, if benefits of the act of June 4, 1880 (21 I have considered the appeal of H. P. the statement of fact in his notice were Plaisance from your decision of 7th of true, to remain absent until October 1, June, 1883, holding for cancellation his 1881; hence he could not be said to have homestead entry No. 6638, made July 5, abandoned the land for six months prior 1882, for the W. of N. W. 11, 7 S., 9 to March 1, 1882. The affidavit of conW., New Orleans District, Louisiana, for test alleging abandonment was filed on conflict with private cash entry No. 5695, February 27, 1882, or before the expiraby N. B. Bradley, made July 1, 1882, tion of said six months. You held that covering this with other tracts. a contest will not lie under these circumstances, which is in accordance with my decision in Griffin vs. Marsh (10 LAND OWNER, 67). The reasons underlying these rules require but a brief consideration. Since only the family can actually know that the entryman's absence is a desertion, only they should be heard to allege it. Since the Land Department holds that excus- The affidavit of Plaisance was made able absence does not forfeit the home- June 10, 1882, before the clerk of Calcasieu stead right, it is bound to regard any ab- Parish (or County), and the entry papers sence as excusable until the contrary is were transmitted to the District Office in But the contestant urges that he has shown, and to treat the land as the entry- compliance with Section 2294 of the Re-shown that the said act does not apply to man's home so long as his family occupy vised Statutes. The affidavit alleges that this case, because Coffey never in fact Since under the homestead law a he was residing on the land, and had a bona planted a crop. This is true only in a minor may be the head of a family, (Sec- fide settlement and improvement thereon, negative sense, and I am not satisfied with tion 2289, R. S.,) and since a deserted commenced on the 25th of May previous, the proof. But as Coffey is shown to have wife may be the head of a family under and consisting of a house, well, fencing, etc. remained away from the land after Octothe decisions of the Land Department, The law allowing a party in such case ber 1, 1881, and to date of the hearing, (Wakeman vs. Bradley, 2 L. O., 162), and to go before the clerk of his county to namely, May 1, 1882, and to have made no of the courts, (Wells vs. Thompson, 13 make the oath, was undoubtedly intended defense of his claim, I am of opinion that Ala., 793), either is entitled to make home- to provide a means for prompt protection Arnold should be allowed to show that in stead entry if so qualified. Since the of his claim from appropriation by parties fact Coffey never met with "a loss or failhusband's settlement is the wife's settle having no present interest, who might ure of crops from unavoidable causes" in ment, (Vance vs. Burbank, supra), it has anticipate him in reaching the district the year 1880, and so obtain his preference been held by this Department that the office while he might be attempting in right of entry. You will please order a rights of a deserted wife cannot accrue good faith to make his entry. He there- rehearing for that purpose. until date of her own entry, (Larsen vs. fore should not be defeated by a stranger, Pechierer, 9 L. O., 97;) and so of the whose application at the district office is minor child since, where a deserted made at a date subsequent to his applicafamily have continued to reside on and tion and oath filed with the county clerk; cultivate the land, the only requisite to as by such a practice his home would be final proof lacking is the affidavit of non- given to another, notwithstanding his comalienation, that may be supplied by the pliance with the law which was passed wife or child, under Rule 27 of the rules especially for his benefit, and he would be of the Board of Equitable Adjudication, no better off than one to whom its provisand his entry confirmed. The doctrine of ions had no application. agency underlies said rule, it having been judicially decided that a deserted wife is her husband's agent in the management of his business and property, (Bishop's Law of Married Women, Vol. 2, Section 406, et seq.,) and it applies equally as well to commutation or purchase as to final proof. It applies in various cases to a minor child whose father has absconded, (Chitty on Contracts, 11th Amer. Ed., Vol. 2, p. As the papers were before you, showing Your decision is modified accordingly. JOSHUA FARMER. Soldiers' Additional Homestead Right-Second I have considered the appeal of J. Vance Lewis from your decision of March 27, 1883, declining to recognize him as attorney in the matter of the pending application of Joshua Farmer for certification of his right to make additional homestead entry of 120 acres of land, under section | 2306 of the Revised Statutes. From your letter of refusal, it appears that additional homestead entry No. 1584, (Sacramento, California, series,) in favor of Farmer, was canceled by your office February 20, 1879, for conflict with preemption cash entry No. 2003. August 6, 1879, Messrs. Heylmun & Kane filed in your office an order from N. P. Chipman, dated at "Red Bluff, Cal., July, 1879," requesting that certificate of Farmer's additional homestead right (the papers in whose case he had filed as attorney) be delivered to them as his (Chipman's) attorneys. January 14, 1881, Lewis filed in your office certain papers in Farmer's name, and February 23d ensuing a power of attorney from him authorizing Lewis as his attorney in fact to procure the certification of his right, and expressly revoking "all former powers of attorney or authorizations whatever in the premises." November 22, 1881, you advised Heyl It is true Lewis has filed a power of and subsequent non-compliance with the attorney direct from Farmer, but he has requirements of the law, as shown by redone nothing thereunder in furtherance of ports of Special Agent Marshall. his principal's right, and is not therefore It appears that Peachy filed his declaraentitled to recognition by this Department tory statement on September 8, 1882, as against the attorney in fact under the alleging settlement during the preceding senior power. It is not competent for January, and that his final proofs show Lewis to utilize the evidence filed by the that residence was established in the latter latter, but it behooves him to produce and part of said September, and that the refile the requisite evidence himself. His quisite residence and improvement existed appeal is therefore dismissed. for six months prior to April 12, 1883, when said entry was made. The Special Agent's report in November, 1882, does not deny the alleged settlement, and it confirms the allegations touching the commencement of residence. The settler's witnesses seem to have been his neighbors, and their credibility is not impeached. A supplementary report of the Special Agent shows that Peachy was not residing on the land on July 1, 1883, but that the said improvements were there. There is Your decision is accordingly modified, and the papers submitted by your letter of July 13, 1883, are herewith returned for such disposition as the exigence of the case may in your judgment seem to require. PRE-EMPTIONS. GEORGE J. ROSKRUGE. Residence-Good Faith.-Where the acts of set- mun & Kane that the matter would be zona. MANN VS. ADAMS. Non-Age.-Discussion of the evidence adduced tending to prove the pre-emptor unqualified in respect to age. SECRETARY TELLER to Commissioner McFarland, January 31, 1884. attorneys accordingly filed said receipt, It appears that Roskruge filed declaraand February 25th ensuing, a paper ex- tory statement October 24, alleging settleI have considered the case of John C. ecuted by Farmer March 23, 1876, reciting ment October 21, 1881, and offered proofs Mann, mineral claimant, vs. James H. that he had on the--day of -A. and payment June 9, 1882. He shows Adams, agricultural claimant, on appeal D. 1875, executed a "Power of Attorney, that he has erected a house, cleared and by Adams from your decision of July 24, creating Charles D. Gilmore " his attorney fenced about five acres of the tract of 1882, holding his entry for cancellation. in fact, etc., and expressly ratifying and which about one acre is in cultivation, October 25, 1878, Adams filed declaraconfirming "all and singular the acts done and jointly with the occupant of adjoining tory statement 10,294 for the N. of the or to be done by my said Attorney in pur-land has dug a well on their dividing line. S. E. and N. E. of the S. W., and suance of either or both of said Powers of His improvements are valued at over the S. E. of the N. E. of Section 10, Attorney." $200. He has resided on the land and Twp. 1 S., R. 14 E., M. D. M., Stockton, made it his home from the date of his set- California. tlement to the date of his proof (about August 9, same year, Mann filed minseven and one-half months), except that eral application No. 348, in which was inhe was absent therefrom at various times, cluded the N. W. of the S. E. and the aggregating from three to four months, N. of the N. E. of the S. W. of said while engaged as a Deputy U. S. Surveyor Se c.10-embracing and putting in conflict in surveying government lands. sixty acres of the above pre-emption claim. Upon this state of facts, you expressed the opinion that "Messrs. Heylmun & Kane are the proper representatives of the canceled entry, and that they are the proper and first attorneys of record," through whom the certification of the right in ques tion should be issued. It should be observed, however, that although Farmer appears to have duly ratified the original power executed sometime in the year 1875 to Gilmore, the record fails to discover any delegation of power by him to Chipman, who does not therefore appear to be duly accredited or authorized to act in Gilmore's stead. Hence Chipman's authorization to Heylmun & Kane to receive the certification of Farmer's right, is insufficient. While Gilmore could delegate such power directly to Heylmun & Kane, it would not be competent for him to do so indirectly, through the medium of Chipman or any one else. He having failed to establish his privity with Gilmore, his order to your office in favor of Heylmun & Kane cannot be reccognized; and unless such privity shall be satisfactorily established within a resonable time, all the evidence filed by or through them should be returned without prejudice to Farmer's right in question. Your decision rejects his application to enter, but allows him to show compliance with the law at any time before expiration of his declaratory statement. There is no adverse claimant, and his present proofs sufficiently show, in my opinion, his good faith and compliance with the law. I, therefore, modify your decision, and allow his entry. AUGUST PEACHY. Special Agent.-Notwithstanding adverse report The case as tried before the Register and Receiver presented two questions material to the issue: First. Were the tracts in conflict more valuable for agricultural than for mineral purposes? Second. Had the pre-emption claimant the necessary qualification in respect to age to make the entry? Upon the first question the Register and Receiver found that the land in dis pute was more valuable for agricultural than for mineral purposes. Upon the second question they made tained. I have considered the case of August On appeal you find that the agricul tural applicant was not twenty-one years of age at the time he made his pre-emption filing; that the evidence as to the mineral character of the land was unsatisfactory, and that the tracts be held subject to either agricultural or mineral entry in accordance with law. Both parties appeal from your decision: Mann because of your finding as to the mineral character of the land, and also because you did not award the land to him; Adams because of your finding that he was not a qualified pre-emptor in respect to age. The testimony put into the case fairly proves that the tracts in controversy are more valuable for agriculture than for mineral purposes. The question of the pre-emptor's age is one more difficult to determine. The improvements which he has upon the contested tracts (which in part he bought and in part made) consist of a house and barn, some twenty-five acres in barley, and some forty acres fenced, and are worth a few hundred dollars. He seems to have made and acquired these improvements in good faith, and in the belief that he was a qualified pre-emptor. The testimony was taken December 22, 1879, Adams testifies in his own behalf, and swears that he was born in the State of California, October 11, 1856, and to the best of his knowledge he was twenty-three years old on the 11th day of October preceding the trial. He had a large number of brothers and sisters, and upon crossexamination he gives the ages of a number of them, and no question is made that he gives them correctly. An examination of his testimony leads to the conviction that he testified with candor and truthfulness, and he gives the usual means of knowing his own age, by reputation in the family. His father and mother, at the time of the examination, had been dead a number of years. His next oldest living brother (one brother between them having died in infancy) testifies that his brother James was born October 11, 1856, that he knew his age by hearing it from his father and mother, and from being with him at school and working with him. There was no family record proven. Against this proof there was produced and placed in evidence a certified copy of the last will of the mother, made in 1875, a short time before her death. In making several bequests in this will to her children, she gives their names, and in that connection mentions their ages. The age of James as thus given is sixteen. He testifies that at the time he was nineteen. The ages were not written, but appear in figures only. ing the last illness of the mother, and it signed for the trial, four witnesses with Generally in the absence of a family record, the best evidence of age is the reputation in the family, and may always be proved by hearsay. Undoubtedly, as stated by you upon authority of Mr. Greenleaf, the description of the age in the will is original evidence where the oral declaration of the party would be admissible. It is entitled to the weight of the declaration of the mother, made and written in the will under the circumstances before stated. The only evidence in addition to the declaration in the will as to the non-age of Adams, is the conceded fact that he had never voted nor registered as a voter. This fact I do not consider entitled to much weight. I am of the opinion that the fair preponderance of the evidence upon this question of age is in favor of the agricultural claimant. Both of the parties appear to have settled prior to the filing of the plat, and to have valuable improvements upon the same subdivision-their respective declarI therefore reverse your decision in the atory statements also embracing other respect named, and direct that the mineral tracts. Undoubtedly a party duly notaapplication as to the land in conflict be re-fied in a regular contest loses his rights jected, and that the filing of the agricul- on failure to appear and defend them. tural claimant be permitted to remain, But it is not strange that an ignorant man, subject to compliance with law. NICHOLS VS. BENOIT. I have considered the case of Stephen The township plat was filed September 27, 1881. little acquainted with the English language, as Benoit is shown to be, and unaccustomed to legal proceedings, should, when deserted by his attorney upon the hour of trial, whether collusively or otherwise, have failed to protect them by due appearance before the proper tribunal. This much, however, is evident, that there has been no trial upon the merits of the case, and that Benoit has endeavored in good faith to secure his rights to the land in dispute. Although the affidavits do not conclusively show the alleged collusion, they are sufficient to raise a suspicion of their truth, and Benoit should have further opportunity to offer Nichols filed declaratory statement Sep- proof touching the same, as also of his pritember 30, 1881, alleging settlement July 7, ority of settlement, and more especially 1877, and Benoit filed declaratory state- so as, in my judgment, the contest was ment October 1, 1881, alleging settlement erroneously allowed. In the case of HanApril 1, 1877. Benoit was cited December son vs. Berry, (Copp, March, 1882,) my I do not regard this evidence as entitled 9, 1881 (under the affidavit of Nichols), to predecessor held that where two hometo the weight generally given to family, respond and furnish testimony January stead entries had been allowed subject to parish and public records of births, bap- 12th following, relative to his declaratory | a prior pre-emption claim, it was improper tisms, and the like. The object of the statement, that the record might be cleared to allow a contest on the application of will was not in any respect to make a of his (Benoit's) adverse claim. He there- the pre-emptor to clear the record of the record of the ages of the children. The upon retained one McKenna as his attor- homestead entries, but that his rights age given in the will was no necessary ney, to whom he paid $25, agreeing to pay should have awaited consideration when part of the description in order to identify him the further sum of $50, upon deter- he made his final proofs. I see no reason the children which were the objects of the mination of the suit, and took to Dead- why the same ruling should not apply to mother's bounty. The will was made dur-wood, upon the day preceding that as- a case between two pre-emptors; because In your opinion you seem to regard this statement in the will as entitled to greater weight than the testimony on the part of the agricultural claimant, because of its character as record evidence. notwithstanding an award to one of the parties under a contest, he must still make the final proof required by statute, which the other party may oppose, and final decision must rest thereon, regardless of that offered at the contest. It would therefore seem useless to encumber the records with vain proceedings, which also involve the expenditure of time and money which the parties are usually unable to bear. As a pre-emptor may at any time offer his final proof upon due advertisement, and obtain his title whenever his good faith and compliance with the law are manifest, the better practice would be not to permit contests between pre-emptors to "clear the record" (unless in exceptional cases), but that they await their final proofs, which open all questions touching the rights of the party applying to offer them. I therefore modify your decision, and dismiss the proceedings in contest, leaving the rights of the parties for consideration when either offers his final proof. and rejected, although there is no note of rejection indorsed upon either application. You sustained such action for the reasons stated by the Register and Receiver therefor. reason, he was not entitled to any entry. Jones accordingly appeared, and was permitted (without objection by Finley) to show Finley's non-compliance with the law, as also to set up his own claim, and submit testimony thereon. This latter he The affidavits accompanying the applicould do for the purpose of defeating Fin- cations in question are according to the ley's right, but not for the purpose of es-stereotyped form prescribed by your office tablishing his own, which was not involved. | regulations, excepting a certain interpolaThe proceeding thus assumed the appear-tion in each; in that of Loomis, to wit: ance of, but was not a contest in any legal "There is only 100 growing trees thereon, sense. Under the notice it was competent ranging in size from small bushes to trees for Jones to show his own or another claim two feet in diameter, only three of the to the tract better than that of Finley's, or latter size, and only twenty-three of the that Finley was not a qualified pre-emptor, same exceeding ten inches in diameter;" or any reason why Finley's entry should in Miller's affidavit: "Except an area of not be allowed. It seems the very object about one-half an acre sparsely covered of the statute requiring publication of no- with about fifteen trees scattered over tice of final proof, to afford opportunity same, only ten of same exceeding four for objections of whatsoever nature to the inches in diameter, and none of them exallowance of an entry. Such hearing, as ceeding a foot in diameter;" and Wilheld in my decision of the 21st instant in liams' affidavit: "Except twenty cottonthe case of Nichols vs. Benoit, opens all wood trees." questions touching the rights of the party The records of your office seem to coroffering the proof. There being then no con- roborate such "admissions," for they test between these parties, and the rights of show a very sparse growth of timberJONES VS. FINLEY. Finley alone being involved, and it appear- simply a clump or thicket, such as is freContest- Final Proof. Where a pre-emptor ing that he had wholly failed to comply quently found throughout the prairie republishes notice of intention to make final with the requirements of the law at a hear-gion-along the banks or edge of a drain proof, the appearance of an opposing claim- ing which he himself had instituted, I find or branch twenty links wide, running S. ant who shows his own superior right and no" circumstances" or facts which should E. through said Sections 4 and 21; while the pre-emptor's non-compliance with law does not constitute a contest. reserve his case for further consideration through Section 6, "a small drain with Such pre-emptor having failed to show compli- upon another offer of final proof. Having scattering timber passes ance with legal requirements, cannot be al- once invoked adjudication of the law, and the N. W. corner; all the balance of the lowed another opportunity, but his filing failed to establish his rights, he must abide Section is prairie." should be canceled. the result. Instead, therefore, of dismissACTING-SECRETARY JOSLYN to Commissioner Mc Farland, January 25, 1884. ing the "contest" and permitting the I have considered the "contested case claims of both parties to remain without of S. S. Jones vs. J. P. Finley," (as you prejudice, the declaratory statement of erroneously call it), involving the N. W. Finley should be cancelled, and that of of Sec. 24, Tp. 4, R. 30, Le Grand, Ore-Jones remain subject to his final proof. gon, on appeal by Jones from your decision of June 27, 1883. It appears that Jones filed declaratory statement February 14, alleging settlement. February 12, 1883, and that Finley filed declaratory statement April 25, alleging settlement April 21, 1882, and published notice of his intention to offer his final proof February 17, 1883. Your decision is modified accordingly. TIMBER CULTURE. BENJAMIN LOOMIS ET AL. Few Scattering Trees-Devoid of Timber.—The cants to make the timber culture entries de- SECRETARY TELLER to Commissioner McFar- I have examined the testimony and concur with you, as also with the local officers, in the opinion that Finley has failed I bave considered the appeals of Benjato comply with the law in respect to resi- min Loomis, Robert W. Miller, and Hugh dence and cultivation, or to establish his E. Williams from your decision of April good faith. On this finding the local offi- 19, 1883, denying their respective applicacers recommended cancellation of his tions to make timber culture entries of the entry, but your decision rejecting only S. W. 4, of Section 4, Twp. 10 S., R. 13 his final proof holds that "under the cir- W., the W. of N. E. and W. of S. E. cumstances he will be allowed to furnish of Section 21, Twp. 8 S., R. 14 W., additional proof after due publication of and the S. of N. W., and S. of N. E. notice, when Jones may appear, and con- of Section 6, Twp. 6 S., R. 17 W., Kirtest in the manner prescribed by the rules win district, Kansas. of practice. The contest is dismissed, and the claims of both parties will remain intact upon the record and without prejudice." 4 It appears that Loomis' application was presented at the local office, January 27, 1883, but the Register rejected the same because the township plat showed timber I think this was erroneous. There was in said section, and the claimant's affino contest between these parties. By davit admitted the fact. Miller's and Wilhis publication of notice the rights of Fin- liams' applications were presumably preley only were in issue, and he thereby in- sented and rejected January 31 and Febvited all persons-whether in interest or ruary 5, 1883, respectively, when the fees not-to appear and show why, for any in each case appear to have been tendered * * * near Now it has been repeatedly held by your office and this department, that where a scattering growth of timber-trees exists solely along the margin of a stream running through a section, such a section should be regarded as devoid of timber, within the contemplation of the statute, and therefore subject to such entry. See Linden vs. Gray (3 Copp. 181), and Turner vs. Moulton, decided by department, April 4, 1883. In the light of the foregoing record showing, and in view of the apparent good faith of these applicants, their applications will be admitted-as they should have been in the first instance-and ample opportunity should be accorded them to submit proof in support of their allegations touching the character of the respective sections in which their several claims are situate. Hereafter, in such a case, you will see to it that the alleged record showing reported by local officers as a basis for their action be verified or otherwise by a scrutiny of your own office records, whereby the necessity of examination of the same by this department may be obviated. |