Abbildungen der Seite
PDF
EPUB

TWO NURSERIES

461

829

129 76 43

DIFFICULTIES ENCOUNTERED AND OVERCOME. and experimented to discover the varieties young trees necessary attention, and fill.

The parking commission, composed of of trees affording good shade, which thrive ing such gaps as accidents may produce. Messrs. William R. Smith, of the botani- despite the hard packing of pavements so

THE FOLLOWING LIST cal garden; William Saunders, of the near the roots.

of trees planted shows more in detail the Agricultural Department; and Mr. John

varieties most used: Saul, ably assisted by Mr. Douglass, the for the propagation of young trees were Soft Maple. .

11,536 secretary, has had charge of the arboricul- established, one at the old almshouse, near Sugar Maple...

1,353 ture of this city. They had many difficul- the Eastern branch, and the other near the

Sycamore Maple . ties to encounter, and a good deal of ex- old Georgetown almshouse. In these nur- Scarlet Maple .

Norway Maple

2,461

401 perimental work had to be done. Street series shade trees are raised from seed- Silver Maple

3,306 trees are subjected to many casualties and lings and cuttings, and the different varie- American Linden

5,606 unhealthy influences, which are in a great ties adopted here are kept on hand, as European Linden

482 degree unavoidable. They are particu- every year more or less of the growing American Elm

3,669

3,878 larly liable to trees in the city are destroyed by storms, Tulip Poplar

1,680 INJURY FROM STORMS, runaway teams and other causes, and the Negunda.

3,302

3,071 on account of the early removal of all vacancies thus created have to be supplied. Buttonwood It has been ascertained by the commission

American Ash

1,381 branches from the lower portion of the

163 main stem. This pruning is necessary in that it will not do to transplant directly European Ash from the nurseries to the streets.

Horse Chestnut

117 order that branches may not interfere with

Gencho.

109 the proper use of the streets and side- HARDENING THE YOUNG TREES.

Sweet Gum .

31 walks; but it weakens the body of the The young tree suffers severely in its Willow : trees, and deprives them of that power of first removal, and it is essential to give it Honey Locust. resisting storms possessed by trees whose a course of preparation to fit it for street

Hickory natural growth has not been disturbed; duty. It is first taken up and planted in Kentucky Coffee

46 hence the necessity of a strong protecting a reserve ground, which, while less conbox, strong enough to support the plant genial than the original soil, is not so se. worthy of use in some considerable number,

Only such varieties as have been found for the first several years of its growth; (vere upon the tree as the paved street. In worthy of use in some considerable number, but after it ceases to afford support, the this reserve ground the tree stands one in this list, hence, it does not include all box is only of value as a protection to the year, receiving such attention as it needs, the growing trees. When Gov. Shepherd stem of the tree from injury by animals and this seems to toughen it and render it and malicious persons. To lessen the more capable of contending for life with the parking commission were not limited in chances of injury from gales, recourse is dry and forbidding soil of the street. It has parking commission were not limited in had to pruning or thinning out the tops been demonstrated that trees thus prepared

their expenses for shade and ornamental during summer, thus allowing the wind to thrive incomparably better in the streets and get the trees planted and growing as

purposes. He told them to "go ahead," pass through the branches, and greatly than those transplanted direct from the rapidly as practicable; that the work must lessening the danger of the trees being up-nurseries. In street planting, very deep not lag for lack of money, and expense rooted by storms.

holes should be dug and the earth taken
out-removed entirely-its place being however, the present form of District

was a secondary consideration. When, The parking commission assert that in supplied with prepared compost or light sects are more prevalent among and more found the best for this purpose. There soil. In this city good top soil has been government was established, Congress re

stricted the annual expenses of the parkinjurious to city trees than those situated in more exposed locations. The shelter are now, altogether, in Washington and ing commission to $18,000, and there it

remains; but as the heaviest and costli.

in and warmth of the city favor their in Georgetown, including young and old,

est work has all been done, that is now crease, and although various remedies the streets, avenues, parks and reserva

suflicient.--Star. tions, about have been suggested and tried looking to their eradication, few have been of any

85,000 TREES IN A THRIVING CONDITION,

In Humboldt County, California, the practical value. To destroy all kinds of or one to every two of population. Of whole area of the redwood forest has been scale insects on the branches, no remedy this number the parking commission have mapped and platted. There are something has been found so efficient as that of cover- planted upwards of 60,000, the others hen over 500.000 acres of that timber in that ing them with a coating of common lime. ing trees set out and cultivated prior to country alone. Disinterested experts eswash. Many suggestions have been of- the existence of the commission, and which timate 100,000 feet of lumber per acre as an fered, say the commission, for the destruc- the latter have tended and preserved. On average, if vot a small yield. At $18 per tion of the caterpillars, and if the opera- the 30th of June, 1880, there were in 1,000 feet,the redwood of Humboldt county tion was confined to a few trees, then the Washington and Georgetown 53,050 trees, alone would just about pay the present remedies might be practicable and effi- planted by the parking commission, alive national debt. cient; but with a forest comprising tens and growing. They were divided as fol

More building is in progress at Newof thousands of trees the expense would lows among the varieties named :

port, Rhode Island, than ever before at be too great. The only practicable method

Variety. Miles. No. of Trees. this season of the year. Handsome villas, is that of removing the young insects before they have extended their webs over Poplars .

Maples .

21,150. to cost all the way from $30,000 to $100,. 13.3

5,640. 000 are going up rapidly in the fashionthe branches. This plan is carried out by Box Elders

4,745.

able sections of the city, while many workthe commission here so far as the means

Elms.

10.7

4,570. at command will allow; but the work is Lindens.

men find employment in altering and im10.5

5 675. only partially done, owing to the amount Miscellaneous.

Buttonwoods . 8.2
3,475.

residents
proving houses for summer
18.3

7,795. already built. At least $500,000 will be of labor required.

During the fiscal year 1881, 2,139 trees expended by the summer residents be

were added, and in 1882 2,477 more were tween now and the 1st of June next. is another destructive agent of city trees, planted. The work of the commission for Tue Western Land Guide, edited by L. but it is admitted that it can nefther be the current fiscal year will add perhaps a G. Willcox and C. B. Howell, Detroit foreseen nor prevented. The street pave. couple of thousand more, though the city is Michigan, is an excellent publication for ments are another obstacle in the city to well supplied now, the chief labor of the land men. It is issued monthly in 16 arboriculture. The commission labored 'commission being devoted to giving the quarto pages, at $1 per annum.

INSECT DESTROYERS.

48.

11.4

[ocr errors]

.

.

LEAKAGE FROM GAS PIPES

PRACTICE.

the premises to be had at this Office under ing facts and asking the instructions of

the 4th section of the amendment to rule this office upon the matter presented. CONTESTS IN OHIO, INDIANA AND ILLINOIS. 35 (see rules of practice herewith)., . I It appears that on November 21, 1882, Proceedings in contests in states where the Com- therefore, as Register ex officio for Ohio, William E. DeLaney filed an affidavit of

missioner is ex officio Register and Receiver. enclose herewith notice of contest. contest against the timber culture entry COMMISSIONER MCFARLAND to J. K. Hamilton, You having suggested the names of of Charles Bower, No. 3127, Fargo series, Toledo, Ohio, April 30, 1883. (C. II. L.)

several officers qualified to take testimony, made August 7, 1879, for the N. E. 1, You being an officer authorized to ad- residing at Toledo, Ohio, near the land, I Sec. 11, Tp. 163, R. 54, alleging failure of minister oaths, I hereby designate you have designated J. Kent Hamilton, Esq., compliance with law, and that the tract under the 1st section of the amendment before whom the contestants will appear was held for speculative purposes and not to rule 35, rules of practice of this Office, at 12 of the clock M. on Monday, June for the cultivation of trees ; that citation herewith enclosed, to take testimony in 4th, 1883, to respond and furnish testi- was duly issued, hearing being fixed for the contest instituted by Philip Lacourse mony concerning the alleged abandon- March 22, 1883. against Isadore Bernor, on the allegation ment. If the officer hereby designated to That on March 16, 1883, DeLaney filed of abandoning his homestead entry No. take the testimony cannot from any cause notice of withdrawal of this contest, as170, dated Washington, D. C., February proceed to do so on the day set for that signing no reasons therefor, but filing at 11, 1882, for lots Nos. one and six, Sec. purpose, he may designate some other the same time another affidavit of contest 11, Tp. 10 South, 10 East, Lucas County, qualified officer at the same place and on the same grounds as before. Ohio time, see sec. 9 amendment to rule 35.

That on the day fixed for hearing in the I enclose herewith the notice of contest | Officers designated to take testimony in first case Bower appeared at your office and have to request that as soon as the cases of this character are allowed to and filed a statement under oath, which contestant deposits with you the sum nec-charge such fees as are authorized by the you transmit, setting forth that he is a essary to defray costs, you cause personal tariff of fees existing in the local courts of farmer and actual settler upon a homenotice to be served on Isadore Bernor, the their respective districts, see sec. 6 amend- stead where he has resided for four years defendant, by an officer or other person ment to rule 35. As no charges of fees are last past, within one mile of his timber as required by rules 10 and 11 herewith. allowed the Commissioner acting as Reg. culture claim; that he made his timber Should the notice be returned not found, ister and Receiver ex officio in the exami- culture entry in good faith; that he has you will cause the party entrusted with that nation of testimony in hearings of this fully complied with the law in every par, duty, to make affidavit of the fact, setting character, applicants for contest should ticular; that he has planted the required forth that due diligence has been used, and make the necessary deposit for costs, with number of trees, and has about 100 acres that defendant Isadore Bernor cannot be the officer designated to take the testi- of the land under cultivation. found. You will then forward the affimony.

He further states that DeLaney has davit to this office with the notice attached I have enclosed to Mr. Hamilton the made propositions to permanently with to the end that public notice may be given. notice of contest with a request to have draw his contest for a consideration, and In that case you will give the name of a the same served on the party to the en- that he has refused to buy off the contest. newspaper printed nearest the land within

try. As the notice contains the allegation It appears from other statements accom. which to publish the notice as required of abandonment on which the contest is panying the papers in this case that De by rule No. 12 herewith. In cases of this instituted, the defendant will thereby be Laney offered to settle with Bower for character, you are allowed to charge such properly advised of the cause of action on $100, and that Bower was advised not to fees as are properly authorized by the the service of notice.

settle in this manner, but to submit his tariff of fees existing in the local courts of If after due diligence personal notice case to you. your district, (see sec. 6 of the amend- cannot be made because of the absence of The Register states that great abuses are ment to rule 35 herewith.) The affidavit the homestead party, the person entrusted being practiced in a similar manner in of contest is herewith enclosed, which you with the service of the notice must for many cases ; that parties initiate contests, will retain and forward to this office with ward to this office his affidavit setting withdraw before the day of trial, then rethe testimony, as required by section 3, forth the fact, with the notice attached new the contests, and so harrass contestamendment to rule 35 herewith. I hereby endorsed not found, and in that case the ees and involve them in continued ex. designate Monday, the 4th June proximo, officer designated to take the testimony penses. at 12 of the clock M., as the time for tak- will be required to forward to this Office You are advised that such contests caning the testimony by you. Should you the name of a newspaper printed nearest not be regarded as made in good faith, and from any cause be unable to act on the the land within which to publish the no- that oppression and extortion under color day fixed for taking the testimony, you tics, under rule 12. The testimony so of contest cannot be sanctioned by this are authorized by sec. 9, amendment to taken must be certified to, sealed up, and office. rule 35 herewith, to designate some other forwarded to this Office by mail or ex- When a contest has been regularly inofficer duly qualified, at the same time and

press, see sec. 3 amendment to rule 35. Astituted and the contestant withdraws at or place, to proceed to take the testimony as decision will be rendered by the Com- before the day fixed for trial, he will be herein indicated.

missioner and Register and Receiver ex regarded as in default and the case will

officio in the same manner as if the testi- proceed and be decided accordingly. SAME. mony had been taken at this Office on the

The same party will not be permitted to COMMISSIONER MCFARLAND to Britton Gra's day set for that purpose.

renew the contest on the same ground. Washington, D. O., April 30, 1883. (C. H. L.)

You will dismiss DeLaney's second conI have received your letter of the 26th

test against the entry of Bower, and will

DELANEY vs BOWER. inst., enclosing an affidavit of contest by

be governed by these instructions in simPhilip Lacourse, Lucas county, Ohio, in-Contest.- When a contest has been regularly ilar cases hereafter. volving the land embraced in the home- initiated and the contestant withdraws at or stead entry of Isadore Bernor, No. 170,

before the day fixed for the trial, he will be GRIFFIN vs. MARSH AND DOYLE vs. WILSON.

regarded as in default, and the case will prodated Washington, D. C., February 11,

ceed and be decided accordingly. The same Act of June 4, 1880-Contest.-The homestead 1882, for lots Nos. one and six, Sec. 11, party will not be permitted to renew the con- parties having given notice of absence under Tp. 10, S., Range 10, E. Michigan Meri- test on the same ground.

the act of June 4, 1880, contest is dismissed as dian, Ohio.

six months after their authorized leave of abCOMMISSIONER MCFARLAND to Reg. and Rec.,

sence had not expired, and abandonment is The affidavit of contest being sufficient, Grand Forks, Dakota, April 9, 1883. (J. W. L.)

the only ground upon which the contest was I hereby designate Monday, the 18th of I am in receipt of the Register's let

brought. June, 1883, as the time for a hearing in'ter of the 29th ultimo, stating the foļlow-'Practice. Two separate cases should not bo

forwarded to the Secretary from the Com- the expiration of the period of six months denied; but it is also an elementary prinmissioner under one letter of transmittal.

from October 1, 1881, or until April 1, ciple of law that an executed power is SECRETARY TELLER to Commissioner McFar- 1882. But these contestants having irrevocable. land, April 27, 1883.

elected their grounds of contest are there It has been repeatedly held by this I have considered the case of Thomas I. by precluded from showing any other Department, notably in the case of S. R. Griffin vs. Eustace K. Marsh, involving abandonment than as alleged.

Patterson, (Copp's P. L. L., 1882, Vol. 1, the N. W. 4 of Sec. 15, Tp. 3, R. 30, also the Your decision is therefore affirmed. p. 207) " that the only proper course with case of James B. Doyle vs. John Wilson, It should be observed, however that al- respect to attorneys, is to continue to deal involving the S. W. 1 of Sec. 7, Tp. 4, R. though these cases are between different with the agent presenting the claim to 31, Oberlin district, Kansas, on appeal by parties and involve different tracts, you your certification, and to refuse, ercept Griffin and Doyle from your adverse de- nevertheless submit them by your letter of for good cause shown, to recognize a sub cision of April 29, 1882.

Sept. 26, 1882, by reason whereof they sequent power of attorney for the purpose It appears that Marsh made homestead have been docketed in this Department as of delivery of the certificate.” entry No. 6146, April 23, 1878, of the for- one case. This is bad practice, tending to In other words, the Department will not mer tract, and that Griffin filed affidavit confusion. You will therefore hereafter permit an attorney in fact, who has exerof contest against the same August 22, transmit cach case separately.

cised due diligence in behalf of his prin1881, alleging abandonment and change of Wilson having relinquished his right cipal, or done all that the rules and regularesidence " for more than six months since and title in the premises, you will accord- tions of your office require to be done, to making said entry." June 26, 1880, ingly take proper action thereon.

be summarily dismissed from a case upon Wilson made homestead entry No. 15,275,

the mere whim or ipse dixit of his prinof the latter tract, and under date of Oc

J. K. TINDALI.

cipal. tober 1, 1881, Doyle filed affidavit of Power of Attorney: -A naked power of attorney Now what is there in the record evidenccontest alleging the same grounds there may be revoked by a principal, but an exe- ing the deception alleged to have been for. Hearing was had in each case De

cuted power of attorney cannot be revoked.

Attorney cember 13, 1881, pursuant to published

Fraud. - The evidence presented practiced by Tindall ? fails to show fraud or other good cause for

Such evidence, if any, is to be found in notice; but only the contestants appeared. declining to recognize the prior attorney for the guardian's affidavit aforesaid, and in Upon the ex parte testimony adduced at the homestead claimant.

the letter referred to therein. the hearing, the Register and Receiver SECRETARY TELLER to Commissioner Mc Far The former is to the effect stated aforerecommended that both entries be can land, May 1, 1883.

said and the latter states in terms: “The celled. Although neither Marsh nor Wilson I have considered the appeal of J. K. claims when approved is worth $100.” appealed from such action, both contest- Tindall from your decision of May 16, If such statement raised a presumption ants, appealed from your decision dismiss- 1882, declining to recognize him as an at- of fraud, it would be doubtless competent ing the contests, whereby they would be torney in the pending application of Mary for this department to take cognizance of estopped from interposing a plea to the Leach, minor orphan child of Levi and the matter; but no such presumption jurisdiction of this Department even if Maria Leach, deceased, for certification of arises. It can only be regarded as an unnotice had been brought home to the the right of said minor, through the advisable statement, which could in no defendants, which was not done.

guardianship of John Stall, to make ad-wise jeopard the claimant's interests, it Your decision was based on the ground ditional homestead entry under section being a matter in which only the guardian that the contestants alleged no abandon-2306 of the Rev. Stats.

could act, and concerning which it bement for more than six months, exclusive The records of your office show (al- hooved him to inquire before acting. of the period during which the defendants though it does not so appear from the But aside from this it should be observed were legally authorized to be absent from papers in the case as submitted by your than these additional homestead claims their claims, nor did they allege any letter of transmittal) that Tindall filed in have been invariably regarded by the defraudulent absence by the defendants un- your office, Feb. 21, 1882, the claim in partment as unassignable; so that the der their extensions.

question, together with a power of attor- question of the disposal can not propIt appears that they availed themselves ney from her guardian authorizing him to erly be raised in the premises. A careful of the provisions of the act of June 4, 1880, procure the certification of the same. examination of the evidence discovers no (21 Stat., 543,) whereby homestead set March 13, 1882, Messrs. Curtis and Bur- bad faith on the part of Tindall, nor has tlers on the public lands in Kansas and dett, as attorneys for one T. F. Barnes, such good cause been shown as would Nebraska west of the sixth principal, meri- filed a power of attorney from said guard- justify the recognition of the junior power dian were permitted to be absent from ian to Barnes, authorizing him to procure of attorney; but on the contrary he aptheir claims until October 1, 1881, where said certification, and expressly revoking pears to have used due diligence in behalf there had been a loss or failure of crops the senior power to Tindall.

of his principal, and to have executed in from fortuitous causes in the year 1879 March 23, 1882, said attorneys filed an good faith the power vested in him. or 1880. And the act further provided affidavit of said guardian, alleging that he I am therefore of opinion that you erred that “during said absence no adverse had been deceived by Tindall's representa in declining to recognize him as the duly rights shall attach to said lands, such tions to his ward touching the value of accredited attorney of record, and your settlers being allowed to resume and per- her claim, whereby he was induced to decision is accordingly reversed. fect their settlement as though no such execute said power and the requisite It should be observed, however, that beabsence had occurred.”

papers filed by Tindall; and that such de- fore delivering the certified papers you These defendants having regularly ap- ception was evidenced by a certain letter should see to it that there is nothing in plied for such leave of absence pursuant to filed in the case, wherein Tindall stated the provisions of section 2307 R. S. to the rules and regulations prescribed by that her claim was worth only $100; preclude such delivery; as such certificayour office by virtue of the act, were there- whereas he had since learned that the tion should invariably be limited to the fore constructively residing on their claims same was more valuable.

minority of the claimant. until October 1, 1881 ; hence it was not Upon such affidavit and letter you competent for these contestants to initiate based your letter of refusal.

JOSEPH WILLIAMS. proceedings against them upon the alleged Thus it appears that the sole question Reinstatement.—Reinstatement of entries at reground of abandonment during such ab- to be determined is, to whom shall the sence. The reversion to the Government certificate of the minor's right be dc- Purchaser.-Purchasers before patent take with

quest of third parties refused. of land so entered could not accrue in the livered ?

notice of all defects, and of contingency that premises by virtue of the provisions of That a principal generally has a right title may not be perfected. section 2297 of the Revised Statutes, until to revoke a mere naked power can not be 'Private Contract.— The Government oannot un

dertake to enforce private contracts by giving all defects, and of the contingency that said protest briefly stated are as follow, to substance to an empty conveyance. title may never be perfected.

wit: The published and posted notices Cowy'r McFARLAND to Curtis & Burdett, Wash They are not innocent purchasers, and failed to note as conflicting as adjoining ington, D. C., February 21, 1883. (J. W. L.) if their conveyances prove empty they can the prior claim of the Wisconsin Mining

On September 6, 1882, you filed a mo- have no recourse upon the Government to Company, which crosses the Chrysolite tion in this office to re-instate Eureka, give substance thereto.

about five hundred feet from its eastern Nevada, desert land entry No. 158, made The doctrine laid down by Mr. Justice extremity. The plat and field notes of the by Joseph Williams, May 19, 1879, and Miller in the case of Root vs. Shields (1 Chrysolite survey fail to show any concancelled by relinquishment August 4, Woolworth C. C. 342), has been uniformly flict with the Eureka No. 2, although the 1882.

recognized and followed as the correct latter had been previously surveyed and You also desired that your letter should rule of law applicable to such cases. neglected to indicate a thirty-foot tunnel, be treated as a protest against the ap The question of the validity of the State the property of the protestant lying proval of the selection made by the State selection will be determined in due course within the limits of the Chrysolite claim. of Nevada upon the application of the said of action thereon by this office.

By reason of these omissions it is Williams, which application embraces a

claimed that the protestant was unable certain eighty-acre tract in question.

PERJURY.

either by reading the published notice or In this proceeding you appear as attor- Revised Statutes.—Complaints for perjury in by an examination of the plat and field neys for Messrs. F. 0. Matthiessen and L. public land cases, as in all other matters, are, notes to ascertain or know, and did not B. Ward, who daim to have derived cer since the adoption of the Revised Statutes, to ascertain or know that said so-called tain interests in said land from Williams

be made under the proper section of the re- Chrysolite in any manner conflicted with

vision instead of under the original act. through intermediate parties.

the said Eureka No. 2.
COMMISSIONER MCFARLAND to Reg. and Rec.,
Mr. Williams, by his attorney, protests
Grand Forks, Dakota, April 6, 1882.

The survey of the Eureka No. 2, though in his turn against the re-instatement of

I am in receipt of the Register's letter of prior to that of the Chrysolite was not his desert land entry, which he states he the 7th ultimo, asking whether section 5 Official, and there is nothing in the regulavoluntarily relinquished for the reason of the act of March 3, 1857,(11 Stat., 250,) tions of this office that would require a that he could not comply with the law.

making false oaths in public land matiers deputy to note conflicting surveys other You file statements showing the nature of perjury, is regarded as repealed by the Re- than those made by or under the direction the transactions between the New Philadel-vised Statutes.

of the Surveyor General. phia Silver Mining Company and Mr. Wil

In reply I have to call your attention to

The existence of such a survey in the liams, and a copy of a deed from Williams Section 5392, U. S. Revised Statutes, present instance may have been well purporting, to convey to said company which is a general statute reproaucing and known, and it could therefore have been whatever rights he possessed to the eighty condensing all previous provisions of law readily noted, but such is not always the acres in question, the consideration men- relative to the offense of perjury,

case, and to require that every survey, tioned being the sum of $5,000.

This statute covers the class of cases

whether of record or not, shall be noted Yon state that the land is used as a site mentioned in the 5th section of the act of would in many cases work unnecessary for a stamp mill which has been erected March 3, 1857, as fully and completely as

hardship, particularly if a failure to recogthereon at a cost of over $50,000, and that if the provisions of said section had been nize such survey was held to invalidate by the failure of Williams to obtain title specifically reproduced in detail.

the notice given to adverse claimants. under his desert land entry and his ulti

The marginal references to the Revised

The Surveyor General may make regu. mate relinquishment of that entry, your Statutes are not a part of the law, and the lations for the guidance of his deputies in clients have been defrauded. Mr. Williams upon his own part submits the law. omission of any reference does not vitiate the performance of their work, but a fail

ure to comply therewith does not necesa statement of the business transactions

While, therefore, the 5th section of the sarily annul a survey unless the same fails referred to, and sets up certain claims of act of 1857 is not verbally repeated in the to conform to the law. his own against opposite parties to the Revised Statutes, the law is continued in

The published and posted notices were individual controversy. Section 5392, and remains the same now

in my opinion sufficient to have put the With these personal matters this office as it was before the adoption of the re

protestant upon inquiry, particularly when can have nothing to do. The only ques- vision.

all the circumstances in connection theretions that can arise in respect to desert

The only difference is that complaints

with are considered. The Chrysolite claim land entry No. 158, are whether said entry for perjury in public lands cases, as in all must have been well known both by name was properly canceled and if so whether other matters, are, since the adoption of and reputation, to protestant, better in there is good cause shown for its re-in-the Revised Statutes, to be made under fact than the unofficial survey of the Eustatement, or any proper application be the proper section of the revision instead reka No. 2 could have been to the Chrysofore me which could be considered in that of under the original act.

lite claimant. It is admitted that the pubbehalf.

lished and posted notices were read with The relinquishment and cancellation of

a view of ascertaining if any conflict ex

MINES AND MINERALS. the entry are in due form and all the pro

isted, but this fact could not be ascerceedings appear to have been regular.

WISCONSIN MG. Co. vs. COOPER.

tained. It is admitted by the party to the entry Survey.-Applicants for mining patent are not It is difficult to understand how this that the land was not reclaimed. He does bound to note on plat and in field notes con- could have happened, how any one could not ask for the re-instatement of his entry, Surveying Instructions. — Failure to comply with

flicts with unofficial surveys.

have been misled when the name of the and no other person is authorized to make

the regulations of the Surveyor General does claim, of the claimant, the mining district such application in his name. Neither not necessarily annul a survey unless the and county are all given, together with does any cause appear why the entry same fails to comply with the law.

the names of claims on the northeast and should be re-instated on its merits. COMMISSIONER McFarland to Register and Re. south, and the course and distance to a

This office cannot undertake to enforce ceiver, Lake City, Col., May 7, 1883, (W.A. C.) well known and neighboring rocky bluff: the obligations of private contracts by at I have carefully considered the protest when these facts are taken into consider. tempting to compel a party to take title of the Wisconsin Mining Company claim- ation, and it is also known that all the to land which he does not desire and to ant for the Eureka No. 2 Lode, against workings upon both claims are within three which he has no legal claim.

the issuance of patent to John M. Cooper, hundred feet of each other, it must be It is an established principle in the ad- for his claim upon the Chrysolite Lode, conceded that the relative positions of the ministration of the land laws that pur- Lot No. 964, Quartz Mining District, Gun- two claims were known to protestant when chasers before patent take with notice of nison county, Colorado. The grounds of the application for the Chrysolite was

one

made, and that the notice given was all in his entry which he had purchased arises, is such failure one that may be that the law contemplates as could be re- from the Little Rock and Fort Scott Rail- remedied or overlooked where it is in eviquired thereunder.

road Company; that there are two cabins dence that during the whole period since The real question to be considered is, on the homestead land, both of which date of entry, nearly three years, the homewould the Chrysolite notice of application were built prior to date of entry, one by stead claimant has continued to cultivate for patent have been misleading, had the a Mrs. Reid and the other by the defend- and improve the land included in his Eureka No.2 claim been unsurveyed, with ant, also a stable, smoke-house, and other entry in a substantial manner, but lived in no improvements belonging thereto lying out-buildings; that, since date of entry, a house situated on adjoining land, which within the Chrysolite boundaries, and said the defendant has been cultivating and is owned by himself, and which he had innotice failed to give the gratuitous infor- improving the homestead and in connec- closed, cultivated and improved as mation as to a conflict, thought necessary tion with the railroad lands, both of body of land in connection with his homeby protestant ? In view of what has been which are enclosed as one piece or parcel, stead tract? above explained, I do not think that such and that, with the exception of a few I must decide in the negative. The information could be reasonably insisted sojourns, of one or two weeks' duration in provisions of the homestead law are stated upon, the notice being already sufficiently the cabins on the homestead tract, when in plain and unequivocal terms. They specific, and hereby dismiss the protest. he only carried with him onto the home- make residence on the homestead tract a

stead tract such articles as he needed for vital prerequisite or condition precedent HOMESTEADS.

the time being, the defendant has continu- to entitle the homestead claimant to a

ously resided since date of entry upon his patent. WILLIAM H. GLASS.

railroad land. And according to his own The homestead law insists on settlement COMMISSIONER McFarland to W. J. Johnston, testimony, he did not return to the home or residence and cultivation for a period Esq., Washington, D. C., June 1, 1882.

stead tract prior to date of initiation of of five years (John Wineland, Copp, vol. The certificate of right to make a sol- contest, but had returned to it thereafter, 4, p. 103). diers' additional homestead entry for 19.85 however.

A homestead claimant who remains on acres in name of William H. Glass, issued

Several of the witnesses for plaintiff the land over night once or twice in six February 2, 1882, may be used in locating testify that the defendant has attempted months, fails to establish the residence a 40-acre tract by paying cash for the to sell the land embraced in his entry. contemplated by the homestead law; and excess over 19.85 acres.

One of them, J. T. Young, gives evidence where it is shown that such failure to

that the defendant told him that he had comply with the provisions of the law was LLOYD H. DILLON.

bargained to sell it to a Mr. K. May. An- not the result of ignorance or of unconSoldiers' Homestead:-Six months' additional other, Martin Nord, that “the defendant trollable circumstances, the entry should ime after entry is not allowed in soldiers' | told witness that he would give him $20 be canceled (Byrne vs. Catlin, Copp, vol. homestead cases.

if he would sell the tract to some one of 5, p. 446). COMMISSIONER McFarland to Lloyd H. Dillon, the German immigrants and that at an

That the defendant in the case at bar Rock Falls, Ills., May 10, 1883. (S. W. 8.)

other time, he told witness that he had as was not ignorant of the law, but on the The law requires settlement and im- much as sold it to Joe Kelley.” The contrary fully alive as to its plain reprovements to be commenced, as well as entry made, within six months from date offered to sell the land to him about two is manifest from his efforts to keep up a

plaintiff also testifies that the defendant quirements in the matter of inhabitancy, of filing the soldier's declaratory state-months and a half ago, for $300.” On the show of residence on the land embraced ment. Six months' additional time, after other hand the defendant denies flatly that in his entry by going upon the same now entry for commencing settlement and im- he has ever offered the land in contro- and then and remaining over night for provements is not allowed. Where settlement and improvements are not comversy for sale.

a short time.

The preponderance of testimony on this I therefore reverse your decision and menced within the time required, the entry point however, would seem to be on the hold the entry for cancellation. is liable to be contested for failure to side of the plaintiff

. But the attempted sale comply with the law. and is also liable to --and I must hold the same as provedbe investigated and canceled by this office would not per se, in itself, warrant the

PRE-EMPTION. If, however, a party should establish his cancellation of the defendant's entry,

MORGAN vs. MAXWELL. actual residence on the land within a although raising as it does a strong pre

Pre-emption Settlement.—The act of settlement reasonable time after entry and otherwise sumption of bad faith on the part of the

should be notorious and significant of a purshows good faith, such facts would be duly defendant. It can only have weight as

pose. It is inexpedient to require that the act

be of such character in all cases. The effect considered by this office in case of contest tending, in connection with the other facts, of negative testimony to disprove such act. or investigation.

to impeach his bona fides in the premises. COMMISSIONER WILLIAMSON to Reg. and Rec.,

There is no question to my mind, that Benson, Minn., May 13, 1881. (J. G. J.) GUYTON VS. PRINCE.

the defendant has satisfactorily, complied The records show that Theodore Max. Sale.-An attempted sale of the land embraced with the provisions of the law in the well filed D. S. 7208, October 1, 1878, alin a homestead entry, is not sufficient ground matter of cultivation. The evidence which leging settlement same day; and that for cancellation, but raises a presumption of discloses that there are between seven and Bernard Morgan filed D. S. 7206 October

bad faith. Residence.-Residence on an adjoining tract and

eleven acres cleared and in cultivation, is 1, 1878, alleging settlement September 30, cultivation of the land embraced in a home- conclusive of this; nor is such compliance 1878. stead entry, is not compliance with the denied by the plaintiff

.

The trial was had June 18, 1879. homestead law.

The point remaining to be considered, Morgan swears that he went on the COMMISSIONER McFarland to Reg. and Rec., therefore, and the only one in fact that land on the 30th of September, 1878, and Little Rock, Ark., Feb. 20, 1883. (R. F. F.) would appear to be in issue, is the alleged dug up the ground with a spade to the ex

I have considered the case of Columbus failure of defendant to establish his resi- tent of about two feet square. The ground G. Guyton vs. Simeon Prince, involving dence upon the land embraced in his entry in which he dug had already been broken homestead entry No. 10,025 for the S. W. within six months after date thereof, and by a former pre-emptor from whom Morgan of Sec. 28, Township 8 North, Range 16 to thereafter continue such residence with- claims to have purchased the improveWest, on appeal by the plaintiff from your out interruption.

ments on September 30, 1878, the same day decision, dismissing the contest.

That the evidence adduced at the trial of his alleged settlement. The evidence shows that at date of of the case clearly proves the defendant's This declaration of settlement on the entry, the defendant was residing upon failure in this respect, I think there can part of Morgan is seriously combatted by a tract of land adjoining that embraced' be no doubt, and the question therefore the negative testimony of Maxwell and

« ZurückWeiter »