Weekly Arizona citizen., 1880-10-02
OPINION or c. NJ. K. rAULIsox. REGIS
 TER.

TER.
 Tn The matter of the final proof of
 John B. Allen, who made com
 plete declaratory statement No.
 395, and the hearing of the ad-
 verse claim of John A. Justus, who
 made pre-emption declaratory
 statement No. 637, both for the
 southwest quarter of southwest
 quarter of section ', and west half
 ol northwest quarter and north
 west quarter of south west quarter
 section IS, township Ii south,
 range If east.
 The material facts in this case may briefly be stated as follows:
 John B. Allen made his pre-emption declaratory statement, No. 3a5. on the 2Ith of October, 1871, alleging settlement the same day: John A. Justus filed hls re-emption declara- tory statement, No. 657, May b, 1879, alleging settlement the previous day, both parties filing the same tract of land.
 The proof clearly shows that at the time Justus filed and settled on the land the claimant Allen had erected a substantial dwelling house of seven rooms, and made other improvements Of the value of $12O0, and had resided On the land over one year and halt.
 Contestant, however, denies that claimant had such residence on the land as meets the requirements of the Pre-cmption laws, and also alleges that Aliens pre-empiinn declaratory statement filed for said land was illegal, for the reason that he had previously hled a vaIid pre-emption declaratory statement for other lands.
 If the fact be established that Alien was in possession Uf the land in con troVersy at the time Ju-tus made his filing and settlement, then accord ing 10 the well settled practice of the Land Office and the decision of the courts, Justus at the time he settled on the land was 6 trespasse- and ob- tained no rights by virtue of his said filings.
 In the recent case of Atherton et al vs. Fowler ct al., Secided by the Su- preme Court, the court says: The generosity by which Congress gave the settler the right Of pre- -emplion was not intended 10 give him the ben eft ot another mans labor, and au- Ihorize him to turn that man and his family out of hIs home. 1t did not propose to give it's bounty 10 settie- ments obtained by violence at the cX- pense ot others. The right 10 make settlement was to be exercised on uu- settled land, 10 make improvements on unimproved lands. To erect dwelling house did not mean to seize some other mans dwelling. IL had reference to vacant lands, 10 unIm- proved lands and it would have shocked the moral sense of tue uien who passed these laws If they had sup posed they had extended an invitation to the pioneer population 10 acquire inchoaIe rights to the public lands by tresspaSs, by violence, by robbery; by acts leading to hOmicides and other crimes of less moral turpitude."
 The evidence clearly shows that Allen was in possession at the time Justus filed and settled on the land The authorities are uniformly to this effect. It is immatsrial to a determi- nation Ot the rights of Justus 10 m uuire as to the validity of the filing sud possession of Allen. This is a question between the Government and Allen and until it is decided adversely to his rights 10 hold the land, no other person can hold ajoint occupation of the same. Were Justus' filing ever 70 valid, however, the proof disclOses a very unsatisfactory compliance with the pre- emptiOn laws. He had made no improvements on the land except the digging of well 10 the depth of five feet, when he was served with written protest from Allen warning him that any improvements which he might make OF the premises wOuldbe placed thereon at the peril of loss to himself. There are, therefore, no equities arising in his favor in view of his fact. Although he had a wife 1 and six children his family did not l live with him on the land. His house, | of one room l2xl4 feet 1 ,ouare, was built by carpenter | whose name he does not know. He | says: George Cooler paid for the | whole outfit, " at cost of S200. Jus ! .us' pecunlary interest in the land | ioes not appear to be of very satisfactory character. He | testified that he used the land | ,nly for a home," although his | .anily did not occupy the |" home. There is no evidence that the land was used for agricultural purposes ,r any other purpose indicated by the etter and spirit of the pre-emptiOn | avs except the breaking and culti- | rating a piece of land 20 feet long by | 10 feet wide. and the occupying of his single room, which Justus already | estifies to. for a home without his -amily. The agricultural dividends rom his aforesaid 10x20 feet, he has ,ot testified 10. The surrounding | of the case would seem | O indicate that they were quite small. His whole proof does not disclose, in nv opinion, a satisfactory compliance n good faith with the requirements ot he exemption laws. l therefore lold that Jusius flied and settled on and not unoccupied and open to set Iement, and that he has no legal or claim 10 the same.
 The decision of the question as to he right of Allen to have an entry 1 or sad land is attended with more lifficultv. There are only two mater al questions to be answered in de- ermining his rights
 First Was Aliens pre-emption leclaratory statement No. 395 valid | ,ne?