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TWO NURSERIES

young trees necessary attention, and fill ing such gaps as accidents may produce.

THE FOLLOWING LIST

of trees planted shows more in detail the varieties most used:

DIFFICULTIES ENCOUNTERED AND OVERCOME. and experimented to discover the varieties
The parking commission, composed of of trees affording good shade, which thrive
Messrs. William R. Smith, of the botani- despite the hard packing of pavements so
cal garden; William Saunders, of the near the roots.
Agricultural Department; and Mr. John
Saul, ably assisted by Mr. Douglass, the for the propagation of young trees were Soft Maple.
secretary, has had charge of the arboricul-established, one at the old almshouse, near Sugar Maple..
ture of this city.
They had
difficul- the Eastern branch, and the other near the
Sycamore Maple.
ties to encounter, and a good deal of ex-old Georgetown almshouse.
Norway Maple
Scarlet Maple .
perimental work had to be done. Street series shade trees are raised from seed- Silver Maple
trees are subjected to many casualties and lings and cuttings, and the different varie- American Linden
unhealthy influences, which are in a great ties adopted here are kept on hand, European Linden
degree unavoidable. They are particu- every year more or less of the growing American Elm
Carolina Poplar.
larly liable to
trees in the city are destroyed by storms, Tulip Poplar
runaway teams and other causes, and the Negunda
vacancies thus created have to be supplied. Buttonwood
It has been ascertained by the commission

INJURY FROM STORMS,

In these nur

as

that it will not do to transplant directly

from the nurseries to the streets.

HARDENING THE YOUNG TREES.

American Ash

European Ash

Catalpa.

Horse Chestnut
Gencho.
Sweet Gum

Willow_.
Honey Locust
Hickory.
Norway Firs
Kentucky Coffee

11,536

1,353

461

2,461

401

3,306

5,606

422

3,669

3,879

1,680

3,302

3,071

1,381

163

829

117

109

31

129

76

43

77

46

on account of the early removal of all branches from the lower portion of the main stem. This pruning is necessary in order that branches may not interfere with the proper use of the streets and sidewalks; but it weakens the body of the The young tree suffers severely in its trees, and deprives them of that power of first removal, and it is essential to give it resisting storms possessed by trees whose a course of preparation to fit it for street natural growth has not been disturbed; duty. It is first taken up and planted in 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 seOnly 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 or for some special purpose, are enumerated box is only of value as a protection to the year, receiving such attention as it needs, stem of the tree from injury by animals and this seems to toughen it and render it the growing trees. When Gov. Shepherd and malicious persons. To lessen the more capable of contending for life with the was at the head of District affairs, the 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 supplied with prepared compost or light

INSECT DESTROYERS.

The parking commission assert that insects are more prevalent among and more injurious to city trees than those situated in more exposed locations. The shelter and warmth of the city favor their increase, and although various remedies have been suggested and tried looking to their eradication, few have been of any practical value. To destroy all kinds of scale insects on the branches, no remedy has been found so efficient as that of covering them with a coating of common limewash. Many suggestions have been of fered, say the commission, for the destruction of the caterpillars, and if the operation was confined to a few trees, then the remedies might be practicable and efficient; but with a forest comprising tens of thousands of trees the expense would be too great. The only practicable method is that of removing the young insects before they have extended their webs over the branches. This plan is carried out by the commission here so far as the means at command will allow; but the work is only partially done, owing to the amount of labor required.

LEAKAGE FROM GAS PIPES

is another destructive agent of city trees, but it is admitted that it can neither be foreseen nor prevented. The street pavements are another obstacle in the city to arboriculture. The commission labored

soil.

however, the present form of District was a secondary consideration. When,

government was established, Congress restricted the annual expenses of the parking commission to $18,000, and there it remains; but as the heaviest and costli

found the best for this purpose. There
In this city good top soil has been
are now, altogether, in Washington and
Georgetown, including young and old, in est work has all been done, that is now
the streets, avenues, parks and reserva-
tions, about

[blocks in formation]

IN Humboldt County, California, the whole area of the redwood forest has been mapped and platted. There are something over 500,000 acres of that timber in that country alone. Disinterested experts estimate 100,000 feet of lumber per acre as an average, if not a small yield. At $18 per 1,000 feet,the redwood of Humboldt county alone would just about pay the present national debt.

MORE building is in progress at Newport, Rhode Island, than ever before at this season of the year. Handsome villas, to cost all the way from $30,000 to $100,000 are going up rapidly in the fashionable sections of the city, while many workmen find employment in altering and imresidents proving houses for summer already built. At least $500,000 will be expended by the summer residents between now and the 1st of June next.

THE Western Land Guide, edited by L. G. Willcox and C. B. Howell, Detroit Michigan, is an excellent publication for land men. It is issued monthly in 16 quarto pages, at $1 per annum.

I

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). 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., 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 of abandoning his homestead entry No. take the testimony cannot from any cause 170, dated Washington, D. C., February proceed to do so on the day set for that 11, 1882, for lots Nos. one and six, Sec. purpose, he may designate some other 11, Tp. 10 South, 10 East, Lucas County, qualified officer at the same place and time, see sec. 9 amendment to rule 35. That on the day fixed for hearing in the Officers designated to take testimony in first case Bower appeared at your office cases of this character are allowed to and filed a statement under oath, which charge such fees as are authorized by the you transmit, setting forth that he is a tariff of fees existing in the local courts of farmer and actual settler upon a hometheir respective districts, see sec. 6 amend- stead where he has resided for four years ment to rule 35. As no charges of fees are last past, within one mile of his timber allowed the Commissioner acting as Reg-culture claim; that he made his timber ister and Receiver ex officio in the exami- culture entry in good faith; that he has nation of testimony in hearings of this fully complied with the law in every parcharacter, applicants for contest should ticular; that he has planted the required make the necessary deposit for costs, with number of trees, and has about 100 acres the officer designated to take the testi- of the land under cultivation.

Ohio

I enclose herewith the notice of contest and have to request that as soon as the contestant deposits with you the sum necessary to defray costs, you cause personal notice to be served on Isadore Bernor, the defendant, by an officer or other person as required by rules 10 and 11 herewith. Should the notice be returned not found, you will cause the party entrusted with that duty, to make affidavit of the fact, setting forth that due diligence has been used, and that defendant Isadore Bernor cannot be found. You will then forward the affidavit to this office with the notice attached to the end that public notice may be given. In that case you will give the name of a newspaper printed nearest the land within which to publish the notice as required by rule No. 12 herewith. In cases of this character, you are allowed to charge such fees as are properly authorized by the tariff of fees existing in the local courts of your district, (see sec. 6 of the amend ment to rule 35 herewith.) The affidavit of contest is herewith enclosed, which you will retain and forward to this office with the testimony, as required by section 3, amendment to rule 35 herewith. I hereby designate Monday, the 4th June proximo, at 12 of the clock M., as the time for taking the testimony by you. Should you from any cause be unable to act on the day fixed for taking the testimony, you are authorized by sec. 9, amendment to rule 35 herewith, to designate some other officer duly qualified, at the same time and place, to proceed to take the testimony as herein indicated.

SAME.

COMMISSIONER MCFARLAND to Britton Gras Washington, D. C., April 30, 1883. (C. H. L.) I have received your letter of the 26th inst., enclosing an affidavit of contest by Philip Lacourse, Lucas county, Ohio, involving the land embraced in the homestead entry of Isadore Bernor, No. 170, dated Washington, D. C., February 11, 1882, for lots Nos. one and six, Sec. 11, Tp. 10, S., Range 10, E. Michigan Meridian, Ohio.

mony.

I have enclosed to Mr. Hamilton the notice of contest with a request to have the same served on the party to the entry. As the notice contains the allegation of abandonment on which the contest is instituted, the defendant will thereby be properly advised of the cause of action on the service of notice.

That on March 16, 1883, DeLaney filed notice of withdrawal of this contest, assigning no reasons therefor, but filing at the same time another affidavit of contest on the same grounds as before.

He further states that DeLaney has made propositions to permanently with draw his contest for a consideration, and that he has refused to buy off the contest.

It appears from other statements accompanying the papers in this case that De Laney offered to settle with Bower for $100, and that Bower was advised not to settle in this manner, but to submit his case to you.

The Register states that great abuses are being practiced in a similar manner in many cases; that parties initiate contests, withdraw before the day of trial, then renew the contests, and so harrass contestees and involve them in continued expenses.

You are advised that such contests can

If after due diligence personal notice cannot be made because of the absence of the homestead party, the person entrusted with the service of the notice must forward to this office his affidavit setting forth the fact, with the notice attached endorsed not found, and in that case the officer designated to take the testimony will be required to forward to this Office the name of a newspaper printed nearest not be regarded as made in good faith, and the land within which to publish the no- that oppression and extortion under color tice, under rule 12. The testimony so of contest cannot be sanctioned by this taken must be certified to, sealed up, and office. forwarded to this Office by mail or express, see sec. 3 amendment to rule 35. A decision will be rendered by the Commissioner and Register and Receiver ex officio in the same manner as if the testimony had been taken at this Office on the day set for that purpose.

DELANEY Vs BOWER.

Contest.-When a contest has been regularly

initiated and the contestant withdraws at or before the day fixed for the trial, he will be regarded as in default, and the case will proceed and be decided accordingly. The same party will not be permitted to renew the contest on the same ground. COMMISSIONER MCFARLAND to Reg. and Rec., Grand Forks, Dakota, April 9, 1883. (J. W. L.) I am in receipt of the Register's letJune, 1883, as the time for a hearing in ter of the 29th ultimo, stating the follow

The affidavit of contest being sufficient, I hereby designate Monday, the 18th of

When a contest has been regularly instituted and the contestant withdraws at or before the day fixed for trial, he will be regarded as in default and the case will proceed and be decided accordingly.

The same party will not be permitted to renew the contest on the same ground.

You will dismiss DeLaney's second contest against the entry of Bower, and will be governed by these instructions in similar cases hereafter.

GRIFFIN US. MARSH AND DOYLE US. WILSON.

Act of June 4, 1880-Contest.-The homestead parties having given notice of absence under the act of June 4, 1880, contest is dismissed as six months after their authorized leave of absence had not expired, and abandonment is the only ground upon which the contest was brought.

Practice.-Two separate cases should not be

missioner under one letter of transmittal.

SECRETARY TELLER to Commissioner McFarland, April 27, 1883.

forwarded to the Secretary from the Com- the expiration of the period of six months denied; but it is also an elementary prinfrom October 1, 1881, or until April 1, ciple of law that an executed power is 1882. But these contestants having irrevocable. elected their grounds of contest are there- It has been repeatedly held by this by precluded from showing any other Department, notably in the case of S. R. abandonment than as alleged. Patterson, (Copp's P. L. L., 1882, Vol. 1, p. 207) "that the only proper course with respect to attorneys, is to continue to deal with the agent presenting the claim to your certification, and to refuse, except for good cause shown, to recognize a subsequent power of attorney for the purpose of delivery of the certificate."

I have considered the case of Thomas I. Griffin vs. Eustace K. Marsh, involving the N. W. of Sec. 15, Tp. 3, R. 30, also the case of James B. Doyle vs. John Wilson, involving the S. W. of Sec. 7, Tp. 4, R. 31, Oberlin district, Kansas, on appeal by Griffin and Doyle from your adverse decision of April 29, 1882.

66

It appears that Marsh made homestead entry No. 6146, April 23, 1878, of the former tract, and that Griffin filed affidavit of contest against the same August 22, 1881, alleging abandonment and change of residence for more than six months since making said entry." June 26, 1880, Wilson made homestead entry No. 15,275, of the latter tract, and under date of October 1, 1881, Doyle filed affidavit of contest alleging the same grounds therefor. Hearing was had in each case December 13, 1881, pursuant to published notice; but only the contestants appeared. Upon the ex parte testimony adduced at the hearing, the Register and Receiver recommended that both entries be cancelled. Although neither Marsh nor Wilson appealed from such action, both contestants, appealed from your decision dismissing the contests, whereby they would be estopped from interposing a plea to the jurisdiction of this Department even if notice had been brought home to the defendants, which was not done.

Your decision was based on the ground that the contestants alleged no abandonment for more than six months, exclusive of the period during which the defendants were legally authorized to be absent from their claims, nor did they allege any fraudulent absence by the defendants under their extensions.

Your decision is therefore affirmed.
It should be observed, however that al-
though these cases are between different
parties and involve different tracts, you
nevertheless submit them by your letter of
Sept. 26, 1882, by reason whereof they
have been docketed in this Department as
one case. This is bad practice, tending to
confusion. You will therefore hereafter
transmit cach case separately.

Wilson having relinquished his right
and title in the premises, you will accord-
ingly take proper action thereon.

J. K. TINDall.

In other words, the Department will not permit an attorney in fact, who has exercised due diligence in behalf of his principal, or done all that the rules and regulations of your office require to be done, to be summarily dismissed from a case upon the mere whim or ipse dixit of his principal.

Power of Attorney.-A naked power of attorney Now what is there in the record evidenc-
may be revoked by a principal, but an exe-ing the deception alleged to have been
cuted power of attorney cannot be revoked.
Attorney 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
declining to recognize the prior attorney for the guardian's affidavit aforesaid, and in
the letter referred to therein.

the homestead claimant.

SECRETARY TELLER to Commissioner McFar-
land, May 1, 1883.

The former is to the effect stated aforesaid and the latter states in terms: The claims when approved is worth $100.”

I have considered the appeal of J. K. Tindall from your decision of May 16, If such statement raised a presumption 1882, declining to recognize him as an at- of fraud, it would be doubtless competent torney in the pending application of Mary for this department to take cognizance of Leach, minor orphan child of Levi and the matter; but no such presumption Maria Leach, deceased, for certification of arises. It can only be regarded as an unthe right of said minor, through the advisable statement, which could in no guardianship of John Stall, to make ad- wise jeopard the claimant's interests, it ditional homestead entry under section 2306 of the Rev. Stats.

The records of your office show (although it does not so appear from the papers in the case as submitted by your letter of transmittal) that Tindall filed in your office, Feb. 21, 1882, the claim in question, together with a power of attorney from her guardian authorizing him to procure the certification of the same.

March 13, 1882, Messrs. Curtis and Burdett, as attorneys for one T. F. Barnes, filed a power of attorney from said guardian to Barnes, authorizing him to procure said certification, and expressly revoking the senior power to Tindall.

It appears that they availed themselves of the provisions of the act of June 4, 1880, (21 Stat., 543,) whereby homestead settlers on the public lands in Kansas and Nebraska west of the sixth principal, meridian were permitted to be absent from their claims until October 1, 1881, where there had been a loss or failure of crops from fortuitous causes in the year 1879 March 23, 1882, said attorneys filed an or 1880. And the act further provided affidavit of said guardian, alleging that he that "during said absence no adverse had been deceived by Tindall's representarights shall attach to said lands, such tions to his ward touching the value of settlers being allowed to resume and per- her claim, whereby he was induced to fect their settlement as though no such absence had occurred."

execute said power and the requisite
papers filed by Tindall; and that such de-
ception was evidenced by a certain letter
filed in the case, wherein Tindall stated
that her claim was worth only $100;
whereas he had since learned that the
same was more valuable.

These defendants having regularly applied for such leave of absence pursuant to the rules and regulations prescribed by your office by virtue of the act, were therefore constructively residing on their claims until October 1, 1881; hence it was not competent for these contestants to initiate proceedings against them upon the alleged ground of abandonment during such abThe reversion to the Government of land so entered could not accrue in the premises by virtue of the provisions of That a principal generally has a right section 2297 of the Revised Statutes, until to revoke a mere naked power can not be

sence.

being a matter in which only the guardian could act, and concerning which it behooved him to inquire before acting.

But aside from this it should be observed than these additional homestead claims have been invariably regarded by the department as unassignable; so that the question of the disposal can not properly be raised in the premises. A careful examination of the evidence discovers no bad faith on the part of Tindall, nor has such good cause been shown as would justify the recognition of the junior power of attorney; but on the contrary he appears to have used due diligence in behalf of his principal, and to have executed in good faith the power vested in him.

I am therefore of opinion that you erred in declining to recognize him as the duly accredited attorney of record, and your decision is accordingly reversed.

It should be observed, however, that before delivering the certified papers you should see to it that there is nothing in the provisions of section 2307 R. S. to preclude such delivery; as such certification should invariably be limited to the minority of the claimant.

JOSEPH WILLIAMS.

Upon such affidavit and letter you based your letter of refusal. Thus it appears that the sole question Reinstatement.-Reinstatement of entries at reto be determined is, to whom shall the quest of third parties refused. certificate of the minor's right be de- Purchaser.-Purchasers before patent take with livered? notice of all defects, and of contingency that title may not be perfected.

Private Contract.-The Government cannot un

dertake to enforce private contracts by giving all defects, and of the contingency that substance to an empty conveyance. title may never be perfected.

COMM'R MCFARLAND to Curtis & Burdett, Washington, D. C., February 21, 1883. (J. W. L.) On September 6, 1882, you filed a motion in this office to re-instate Eureka, Nevada, desert land entry No. 158, made by Joseph Williams, May 19, 1879, and cancelled by relinquishment August 4,

1882.

You also desired that your letter should be treated as a protest against the арproval of the selection made by the State of Nevada upon the application of the said Williams, which application embraces a certain eighty-acre tract in question.

In this proceeding you appear as attorneys for Messrs. F. O. Matthiessen and L. B. Ward, who claim to have derived certain interests in said land from Williams through intermediate parties.

Mr. Williams, by his attorney, protests in his turn against the re-instatement of his desert land entry, which he states he voluntarily relinquished for the reason that he could not comply with the law.

They are not innocent purchasers, and if their conveyances prove empty they can have no recourse upon the Government to give substance thereto.

The doctrine laid down by Mr. Justice Miller in the case of Root vs. Shields (1 Woolworth C. C. 342), has been uniformly recognized and followed as the correct rule of law applicable to such cases.

The question of the validity of the State selection will be determined in due course of action thereon by this office.

PERJURY.

Revised Statutes.-Complaints for perjury in public land cases, as in all other matters, are, since the adoption of the Revised Statutes, to be made under the proper section of the revision instead of under the original act. COMMISSIONER MCFARLAND to Reg. and Rec., Grand Forks, Dakota, April 6, 1882. I am in receipt of the Register's letter of the 7th ultimo, asking whether section 5 of the act of March 3, 1857, (11 Stat., 250,) making false oaths in public land matters You file statements showing the nature of perjury, is regarded as repealed by the Rethe transactions between the New Philadel-vised Statutes. phia Silver Mining Company and Mr. WilIn reply I have to call your attention to liams, and a copy of a deed from Williams Section 5392, U. S. Revised Statutes, purporting to convey to said company which is a general statute reproducing and whatever rights he possessed to the eighty condensing all previous provisions of law acres in question, the consideration men- relative to the offense of perjury, tioned being the sum of $5,000.

You state that the land is used as a site for a stamp mill which has been erected thereon at a cost of over $50,000, and that by the failure of Williams to obtain title under his desert land entry and his ultimate relinquishment of that entry, your

clients have been defrauded.

Mr. Williams upon his own part submits a statement of the business transactions

referred to, and sets up certain claims of his own against opposite parties to the individual controversy.

This statute covers the class of cases mentioned in the 5th section of the act of March 3, 1857, as fully and completely as if the provisions of said section had been specifically reproduced in detail.

The marginal references to the Revised Statutes are not a part of the law, and the omission of any reference does not vitiate the law.

While, therefore, the 5th section of the act of 1857 is not verbally repeated in the Revised Statutes, the law is continued in as it was before the adoption of the reSection 5392, and remains the same now vision.

With these personal matters this office can have nothing to do. The only questions that can arise in respect to desert The only difference is that complaints land entry No. 158, are whether said entry for perjury in public lands cases, as in all was properly canceled and if so whether other matters, are, since the adoption of there is good cause shown for its re-in- the Revised Statutes, to be made under statement, or any proper application be- the proper section of the revision instead fore me which could be considered in that of under the original act. behalf.

The relinquishment and cancellation of the entry are in due form and all the proceedings appear to have been regular.

It is admitted by the party to the entry that the land was not reclaimed. He does

not ask for the re-instatement of his entry, and no other person is authorized to make such application in his name. Neither does any cause appear why the entry should be re-instated on its merits.

This office cannot undertake to enforce the obligations of private contracts by attempting to compel a party to take title to land which he does not desire and to which he has no legal claim.

It is an established principle in the administration of the land laws that purchasers before patent take with notice of

said protest briefly stated are as follow, to wit: The published and posted notices failed to note as conflicting as adjoining the prior claim of the Wisconsin Mining Company, which crosses the Chrysolite about five hundred feet from its eastern extremity. The plat and field notes of the Chrysolite survey fail to show any conflict with the Eureka No. 2, although the latter had been previously surveyed and neglected to indicate a thirty-foot tunnel, the property of the protestant lying within the limits of the Chrysolite claim.

By reason of these omissions it is claimed that the protestant was unable either by reading the published notice or by an examination of the plat and field notes to ascertain or know, and did not ascertain or know that said so-called Chrysolite in any manner conflicted with

the said Eureka No. 2.

The survey of the Eureka No. 2, though prior to that of the Chrysolite was not official, and there is nothing in the regulations of this office that would require a deputy to note conflicting surveys other than those made by or under the direction of the Surveyor General.

The existence of such a survey in the present instance may have been well known, and it could therefore have been readily noted, but such is not always the case, and to require that every survey, whether of record or not, shall be noted would in many cases work unnecessary hardship, particularly if a failure to recognize such survey was held to invalidate the notice given to adverse claimants.

The Surveyor General may make regulations for the guidance of his deputies in the performance of their work, but a failure to comply therewith does not necessarily annul a survey unless the same fails to conform to the law.

The published and posted notices were in my opinion sufficient to have put the protestant upon inquiry, particularly when all the circumstances in connection there

with are considered. The Chrysolite claim must have been well known both by name and reputation, to protestant, better in fact than the unofficial survey of the Eureka No. 2 could have been to the Chrysolite claimant. It is admitted that the published and posted notices were read with a view of ascertaining if any conflict existed, but this fact could not be ascertained.

It is difficult to understand how this could have happened, how any one could have been misled when the name of the

MINES AND MINERALS. WISCONSIN MG. Co. vs. COOPER. Survey.-Applicants for mining patent are not bound to note on plat and in field notes conSurveying Instructions.-Failure to comply with flicts with unofficial surveys. the regulations of the Surveyor General does claim, of the claimant, the mining district not necessarily annul a survey unless the and county are all given, together with same fails to comply with the law. the names of claims on the northeast and COMMISSIONER MCFARLAND to Register and Re. south, and the course and distance to a ceiver, Lake City, Col., May 7, 1883, (W.A. C.) well known and neighboring rocky bluff: I have carefully considered the protest when these facts are taken into considerof the Wisconsin Mining Company claim- ation, and it is also known that all the ant for the Eureka No. 2 Lode, against workings upon both claims are within three the issuance of patent to John M. Cooper, hundred feet of each other, it must be for his claim upon the Chrysolite Lode, conceded that the relative positions of the Lot No. 964, Quartz Mining District, Gun- two claims were known to protestant when nison county, Colorado. The grounds of the application for the Chrysolite was

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 one 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 the time being, the defendant has continu- to entitle the homestead claimant to a ously resided since date of entry upon his patent. railroad land. And according to his own testimony, he did not return to the homestead tract prior to date of initiation of contest, but had returned to it thereafter, however. A homestead claimant who remains on Several of the witnesses for plaintiff the land over night once or twice in six testify that the defendant has attempted months, fails to establish the residence to sell the land embraced in his entry. contemplated by the homestead law; and 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 bargained to sell it to a Mr. K. May. An- not the result of ignorance or of unconother, Martin Nord, that "the defendant trollable circumstances, the entry should told witness that he would give him $20 be canceled (Byrne vs. Catlin, Copp, vol. if he would sell the tract to some one of 5, p. 446). the German immigrants and that at anThat the defendant in the case at bar other time, he told witness that he had as was not ignorant of the law, but on the much as sold it to Joe Kelley." The contrary fully alive as to its plain replaintiff also testifies that the defendant quirements in the matter of inhabitancy, offered to sell the land to him "about two is manifest from his efforts to keep up a months and a half for $300." On the show of residence on the land embraced ago, other hand the defendant denies flatly that in his entry by going upon the same now he has ever offered the land in contro- and then and remaining over night for versy for sale.

HOMESTEADS. WILLIAM H. GLASS. COMMISSIONER MCFARLAND to W. J. Johnston, Esq., Washington, D. C., June 1, 1882. The certificate of right to make a soldiers' additional homestead entry for 19.85 acres in name of William H. Glass, issued February 2, 1882, may be used in locating a 40-acre tract by paying cash for the

excess over 19.85 acres.

LLOYD H. DILLON.

Soldiers' Homestead. Six months' additional time after entry is not allowed in soldiers' homestead cases.

COMMISSIONER MCFARLAND to Lloyd H. Dillon, Rock Falls, Ills., May 10, 1883. (S. W. S.) The law requires settlement and improvements to be commenced, as well as entry made, within six months from date of filing the soldier's declaratory statement. Six months' additional time, after entry for commencing settlement and improvements is not allowed. Where settlement and improvements are not commenced within the time required, the entry is liable to be contested for failure to comply with the law. and is also liable to be investigated and canceled by this office. If, however, a party should establish his actual residence on the land within a

reasonable time after entry and otherwise shows good faith, such facts would be duly considered by this office in case of contest or investigation.

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Residence.-Residence on an adjoining tract and
cultivation of the land embraced in a home-
stead entry, is not compliance with the
homestead law.
COMMISSIONER MCFARLAND to Reg. and Rec.,
Little Rock, Ark., Feb. 20, 1883. (R. F. F.)
I have considered the case of Columbus
G. Guyton vs. Simeon Prince, involving
homestead entry No. 10,025 for the S. W.
of Sec. 28, Township 8 North, Range 16
West, on appeal by the plaintiff from your
decision, dismissing the contest.

The preponderance of testimony on this point however, would seem to be on the side of the plaintiff. But the attempted sale

and I must hold the same as provedwould not per se, in itself, warrant the cancellation of the defendant's entry, sumption of bad faith on the part of the although raising as it does a strong predefendant. It can only have weight as tending, in connection with the other facts, to impeach his bona fides in the premises.

There is no question to my mind, that the defendant has satisfactorily, complied with the provisions of the law in the matter of cultivation. The evidence which discloses that there are between seven and eleven acres cleared and in cultivation, is conclusive of this; nor is such compliance denied by the plaintiff.

The point remaining to be considered, therefore, and the only one in fact that would appear to be in issue, is the alleged failure of defendant to establish his residence upon the land embraced in his entry within six months after date thereof, and to thereafter continue such residence without interruption.

The homestead law insists on settlement or residence and cultivation for a period of five years (John Wineland, Copp, vol. 4, p. 103).

a short time.

I therefore reverse your decision and hold the entry for cancellation.

PRE-EMPTION.

MORGAN VS. MAXWELL. Pre-emption Settlement.-The act of settlement should be notorious and significant of a purpose. It is inexpedient to require that the act be of such character in all cases. The effect of negative testimony to disprove such act. COMMISSIONER WILLIAMSON to Reg. and Rec., Benson, Minn., May 13, 1881. (J. G. J.) The records show that Theodore Maxwell filed D. S. 7208, October 1, 1878, alleging settlement same day; and that Bernard Morgan filed D. S. 7206 October 1, 1878, alleging settlement September 30, 1878.

The trial was had June 18, 1879. Morgan swears that he went on the land on the 30th of September, 1878, and dug up the ground with a spade to the extent of about two feet square. The ground in which he dug had already been broken by a former pre-emptor from whom Morgan claims to have purchased the improvements on September 30, 1878, the same day of his alleged settlement.

That the evidence adduced at the trial 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

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