7 Copp's Land Owner 1 (1880-1881)

handle is hein.journals/coplndow7 and id is 1 raw text is: COPP'S LAND-OW
VOLUME VII.-No. 1.       WASHINGTON, D. C., APRIL, 1880.

qER.
PAGE 3 AND 4.

REPRINT OF VALUABLE MATTER.

PRACTICE.
IHILS vs. YiELDING.
The fact that one party has failed at a hearing to
show a timber-culture claimant's non-compliance
with the law, does not bar another party from the
privilege of being heard upon similar allegations
covering the same period of time.
AcrING CO,.1MISSIONER ARMSTRONG to Register and
Receiver, Larned, Kansas, Feb. 17, 1880.
I have considered the case of Joseph Iluls vs.
A. T. Yielding, involving timber-culture entry
No. 175, Salina series, on N. E. 1, 30.- 18 S.-
10 W., made Nov. 19, 1873. The affidavit of
Huls filed May 15, 1879, alleges failure to plant
and cultivate as required by law, also, that the
defendant failed to comply with the require-
ments of the timber-culture laws prior to the
date when he filed his affidavits for an extension
of time in which to make final proof, and that
material allegations in said affidavit are false.
The case came up October 25th, 1879, having
been continued by consent from July 17th pre-
vious, the day originally set for the hearing.
Defendant's counsel at once filed a motion to
dismiss the case upon the following grouids
1. That the affidavit of contest does not al-
lege a cause of action against the defendant in
this, that the entry is not correctly described
in number and in date.
2. That the entry has already been contested
by one Perry MeMurdy, at a time subsequent
to the filing of the affidavit by defendant, and,
after a full hearing of the case, the Commis-
sioner of the General Land Office sustained the
entry of Yielding, which said decision was sub-
sequently affirmied by the Secretary of the In-
terior. That the matters and things pertaining
to said entry and management of this claim hav-
ing been passed upon and adjudged by a court
of competent jurisdiction, that said decision is
final and conclusive, and the matters and things
cannot again be inquired into.
You overruled the first objection entirely,
and sustained the second to the extent of re-
stricting the testimony to the acts of Yield-
ding subsequent to the hearing in the contest
of McMurdy.
Whereupon the plaintiff excepted to your
ruling, and, after taking the testimony of one
witness, he produced seven others; but upon
your refusal to allow any testimony as to the
acts of defendant prior to the date of the pre-
vious hearing, declined to proceed further, and
gave notice of an appeal from your rulings.
The act of June 4, 1878, section 3, provides as
follows:
SEC. 3. That if at any time after the filing of
said affidavit, and prior to the issuing of the
patent for said land, the claimant shall fail to
comply with any of the requirements of this
act, then and in that event such land shall be
subject to entry under the homestead ]a.vs, or
by some other person under the provisions of
this act: Provided, That the party making claim
to said land, either as a homestead settler or
under this act, shall give at the time of filing
his application such notice to the original claim-
ant as shall be prescribed by the rules estab-
lished by the Commissioner of the General
Land Office, and the rights of the parties shall
be determined as in other contested cases.
In this case, it having been adjudged that
Perry McMurdy, the former contestant, had
failed to show non-compliance with the law on

the part of Yielding, ought that fact be held to
bar another from the privilege of being heard
upon similar allegations, covering the period
when the infractions of the same were alleged
to have taken place by the former contestant?
Would not such a ruling deprive him of a
right guaranteed by the statute above quoted ?
It is not reasonable to suppose that all persons
can have been cognizant of the proceedings in
the first case; so as to be able to join in them;
and it would seem to be a hardship to say that
he should not subsequently have opportunity
to prove the truth of his allegations, because
another has failed to do so. The decision of
this office in a contested homestead or timber-
culture case, adverse to the contestant, is rather
a judgment that the contestant has failed to
prove non-compliance with the law, than an af-
firmative decision that defendant has so coin-
plied.
The contestant having no means of compell-
ing the attendance of witnesses, they are liable
to fail him, and often do so fail at the critical
moment, and 'thus leave his case a weak one;
while a second contestant having superior fa-
cilities for producing the witnesses, or greater
pecuniary resources, could easily sustain alle-
gations which would be fatal to the defendant's
claim. You cite as authority for your decision
the case of the United States vs. Throckmorton,
reported in 8th Otto, p. 61.  I do not think
it a parallel case, in that the United States
appears as a party in an endeavor to set
aside its own patent, granted after an adjudica-
tion of the case by the courts, and the opposing
parties are the same as in the original suit, or
in privity with them, thus making the case a
proper one for the application of the doctrine
of res adjadicata.
On grounds of public policy, it seems to me
that it would be dangerous to deny the plain-
tiff's appeal, for the reason that it would stimu-
late collusive proceedings on the part of those
who are conscious of having failed to comply
with the law, the easiest method of shutting the
door to a genuine scrutiny of his acts being to
invite a lame and half-hearted contest, the re-
sult of which should be understood from the
beginning.
I return the papers in this case, and have to
direct that you notify the parties that a further
hearing will be held, at which the plaintiff will
be allowed to produce evidence as to the acts
of the defendant touching his compliance with
the timber culture law from the date of his en-
try.
BUCIOMAN VS. WESTERN PACIFIC R. R. Co.
The Department has no power to declare a patent
void nor, while a patent is outstanding, to allow
another's claim to the land conveyed thereby.
SECRETARY SCHURZ to Commissioner Williamson,
Februar-y 26, 1879.
I have received and considered the applica-
tion of George E. Buckman for a reconsidera-
tion and modification of my decision of De-
cember 31, 1878, in the case of George E. Buck-
man vs. The Western Pacific Railroad Company,
involving the right to the northwestern quarter
of section 13, township 7 south, range 2 west,
Mount Diablo meridian, San Francisco, Califor-
nia. A patent for said tract was issued to said
railroad company on June 29, 1867.
The only question raised by that application
(1)

is that the patent issued to the company is
void, and therefore no bar to the issuing of a
second patent to Mr. Buckman. This depart-
ment has no power to declare a patent void,
nor while said patent is outstanding to recog-
nize another's claim to said land. If the pat-
ent issued is void, it can only be set aside by
the courts. In the meantime, it is good as
against the government and all claiming under
the government. (United States vs. Stowe, 2
Wallace, 525.) If a patent were issued to Mr.
Buckman on his claim, it would avail him noth-
ing in a suit brought to recover possession of
the tract in question.
Upon a reconsideration of the questions in-
volved in this case, as set forth in my former
decision, I find no error therein, and this ap-
plication is therefore denied.
MINES AND MINERALS.
S. R. DELoNG.
-filitary Reservation.-Mineral claims within mili-
tary reservations cannot be sustained.
AcrING COMMISSIONER ARMuSTRONG to S. R. De-
Long, Camp Bowie, Ariz., September 30, 1879.
In reply to your letter stating that in com-
pany with others you located a gold ledge in
July, 1877; that the military reservation at
Camp Bowie has 'since been enlarged so os to
include the same, and asking what steps are
necessary for you to take to keep your claim
alive, you are advised that while the land is
within a government reservation you can do
nothing to sustain it. Should the reservation
be removed and the land restored to public oc-
cupation, you should relocate -your claim.
SMITiH BROTHERS.
Placer Claim.-The area which may be applied for as
a placer claim is unlimited, if the separate loca-
tions constituting it were of legal quantity, properly
made, and contiguous, making one tract, and en-
tire title is in applicant.
E xpenditure.-Five hundred dollars' expenditure is
required on each claim, not on each location so
situated.
ACTING COMMISSIONER ARMSTRONG to Smith Bros.,
Peels Marsh, Nevada, September 20, 1879.
The area which may be applied for as a placer
claim is unlimited, provided the separate loca-
tions constituting it were of legal quantity,
properly made, are all contiguous, making one
tract, and entire title is in applicant for patent.
Claims which include all forms of deposit, ex-
cept veins of quartz or other rock in place, are
treated as placers; $500 expenditures are re-
quired on each claim, and not on each location,
when applying for patent to land situated as
aforesaid.
The fact that a party bases his right to a pat-
ent on the claim that he has held his land for
a period which satisfies the statute of limita-
tion of his State or Territory, does not avoid
the necessity of publishing and posting notices
of his application for patent as in other cases.
JA-MS M. FREEMAN ET AL.
Mill Sites.- Land contiguous only to the surface
ground of a lode claim is not within the prohibi-
tion of section 2337, Revised Statutes, and this
ordinarily occurs when the mill site is contiguous
to the side lines of the lode claim. When the mill
site abuts against the end lines of the lode claim it
is Tot subject to entry.
ACTING COMMeISSIONER ARMSTRONG to Register and
Receiver, Central Cty, Col., Sept. R4, 1879.

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