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17 Copp's Land Owner 1 (1890-1891)

handle is hein.journals/coplndow21 and id is 1 raw text is: COPP'S LAND-OWNER VOL. XVII. WASHINGTON, D. C., APRIL 1, 1890. No. 1. BACK NUMBERS. Several numbers of Volume One of Copp's LAND OWNER have been reprinted, and a few complete sets of Volumes 1 to 15 can now be furnished. PARTIEs who have volume 12 of the LAND- OWNER and desire to sell it, are requested to communicate immediately with the editor of the LAND-OWNER. SEE second page of cover for Index. PRACTICE. CIRCULAR. COMMISSIONER GROFF to Registers and Re- ceivers, U. S. Local Land Offices, February 19, 1890. You will please to furnish this office, as soon as practicable, with a list of the names (with No. of entry) of all entrymen whose entries are suspended, in which their post-office addresses are not of record in your office, in order that proper notifi- cation may, in all cases, be promptly sent to the entryman by you when the same shall have been furnished you from this office. In future you will be careful to note on the tract-book the post-office address of the entryman, in both original and final proof entries. Please acknowledge receipt of this circular. ADJUSTMENT OF DEPUTY SURVEYOR'S Ac- COUNTS. SECRETARY NOBLE to Commissioner Groff, February 20, 1890. The instructions of the General Land Office to surveyors-general, as shown in the Commissioner's report for 1886 (pages 175-177), requiring all surveys to be exam- ined in the field prior to the adjustment and payment of deputy surveyor's ac- counts, are hereby revoked. The revoca- tion, however, of these instructions does not call in question the authority of the Commissioner to suspend the adjustment of a surveying account in any particular case, pending an examination in the field, if he deems such course necessary to de- termine the justness of the account, or the accuracy of the work. HENRY GAUGER. Application to Enter-Judgment of Chncellation. -An application to enter may be received dur- ing the time allowed for appeal from a judg- ment of cancellation, subject to such appeal, but should not be made of record until the rights of the former entryman are finally determined. During the periodl accorded for the exercise of the preference right of a successful contestant, an application to enter may be allowed subject to such right.-First Assistant Secretary Chand ler to Commissioner Groff, February 19, 1890. HARTLEY VS. YOUNG. Affidavit of Contest-Amendment.-An affidavit of contest must show the continuance of the default alleged; but leave to amend may be given where the complaint is defective in this particular. An objection to an affidavit of con- test is not waived by going to trial after such objection is overruled.-First Assistan.t Secre- tary Chandler to Commissioner Groff, February 17, 1890. FRANK L. MEASE. Final Proof Proceedings-Equitable Adjudica- tion.-An entry allowed on final proof taken before an officer not authorized by statute to act in such proceedings, may be sent to the board of equitable adjudication, if said proof is otherwise regular. In the absence of protest, or adverse claim, supplemental evidence may be submitted where final proof is found in- sufficient, and bad faith is not apparent.-Sec- retary Noble to Commissioner Groff, February 17, 1890. SEWELL vs. ROCKAFELLER. Res .Tudicata-Curing Defects.-Matters tried and determined by final decision cannot be made the subject of a second contest. A contest must fail if the entryman, prior to the initia- tion thereof, commences in good faith to cure the default. If on the issue joined the con- test fails, the contestant will not be heard to say that it will not be possible for the entry- man to show compliance with the law within the statutory period. ASSISTANT SECRETARY CHANDLER to Com- missioner Groff, February 27, 1890. I have considered the case of Win. D. Sewell vs. James Rockafeller on appeal of the former from your office decision of August 24, 1888, dismissing his contest against the timber culture entry of the latter for S. W. , Sec. 12, T. 8 N., R. 12 W., Bloomington, Nebraska, land district. Rockafeller entered said land under the old timber culture law May 21, 1873. The record shows that he had commenced the planting of trees upon the tract under the old law, and that forty acres were planted to trees three different times. But few of them grew, however, and after the change in the timber culture law several efforts were made to have a good stand of trees upon ten acres of said forty, with but indifferent success up to April 5, 1883, when contest was commenced against the said entry by present contestant, which, after formal trial and hearing, resulted in the final dismissal of his contest by your office September 11, 1884. On July 30, 1885, Sewell filed nnother affidavit of contest, alleging: That claimant failed to have ten acres of said land planted to forest trees, seeds or cuttings up to and during the fourth year of said entry, and has so failed up to present time. 2. That he failed during the years 1877, 1878, 1879, 1880, 1881, 1882, 1883, 1884, and 1885, up to present time to plant, cul- tivate and protect ten acres of forest trees on said land. 3. That he has allowed fire to burn over and destroy trees on said land during the past six years. 4. That at present there are less than two hundred living thrifty trees to each acre of said land which has been planted to trees. Your said decision holds that all allega- tions of default and failure prior to April 5, 1883, are res adjudicata by reason of your office decision of September 11, 1884, and that the only issues in the case are: 1. That claimant has failed from April 5, 1883 (the date of filing contest, decided September 11, 1884), up to July 30, 1885 (the date of filing this contest), to plant, cultivate, and protect ten acres of forest trees on said land. 2. That there was at the date of this contest (July 30, 1885) less than two hun- dred living thrifty trees to each acre of said land, which has been planted to trees. In this conclusion as to issues involved I concur. Contestant having failed to ap- peal from your decision of September 11, 1884, dismissing his contest, that decision became final as to all matters in issue therein and cannot be tried over again in second contest. The evidence in regard to the planting and cultivation of timber on the land in controversy is very conflicting. It is rea- sonably clear, however, that several efforts have been made by the entryman to ob- tain the proper stand of trees and that about the last of February or first of March, 1883, when he had about accomplished this, a fire driven by a very high wind swept through the tract and destroyed most of them ; that ever since he has each season caused more or less work to be done looking toward again obtaining the nec- essary number of trees. The trees were mostly cottonwood, and in addition to the injury caused by the fire,

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