The daily intelligencer. [volume] (Seattle, Wash. Territory [i.e. Wash.]) 1876-1881, 1880-09-01

i. The general rule 10 that the busdel
Of proof 10 upon him who substsn-
TALLY asserts the affirmative Of n is-
sue.
2. The affisms:ive Of an Issue. however
may be the assertion Of segntiveslle
cation, and when such 10 the cass, tn
sstablishmsnf Of this ssgstivs allsga'
ton 10 On essential element in thu
case
8 Under the Commissioner's instTuc,
tions OF August Is. 1872. vhen Z
railroad coGapsny applies to alccs
land on which homssssads o. pre-.
emptious have been made and can
celsd, the burden OF proof 10 upon the
company to establish the negative al
legation that sach claims we're nsl
vslid ut the date when the right ei
the Railroad attached.
DzPr. OF THE INrxRIoR,
WAsHIx0Tox. d. c..
April 81. 1873.
Sin: have rscsivsd your lstsss II
the 22d inst. tSsssmisting the appeal
Of w K Msudenhall. Esq.. sttoraey
for the Northern Pacido Railroad Com
pany. from your order remssding ths
case entitled George Absrnethy ~ Tbs
Northern Pacific Railroad. Involving
title 10 lots I aud 2. section %. town
ship 8 north. range west. Vancouver.
W T. to the local officers far rshses.
ing.
You state that the reason Why you
ordered Q rshesring in this csss vas.
that the local ofiissrs i@prspsrly 70
quired Abernethy 70 show sfiirmativsly
that which should have bssn thrown
upon the company 70 dispFovs. IL hsv-
ing instituted proceediags In the cas-
by applying to sslset the land"
To this ruling the company. by its
attorney. has taken exception. and sl.
legss that the established rule OF lsw is.
that "the obligation OF proving any fact
lies upon the party who substantially
asserts the sffirmation of tho issue. "
and claims thAt Abernethy had assumed
the Affirmative Of showing that Coop~r's
ding was invalid ct the dstc the right
of the road attached.
The correctness of the above men .
toned rule I do not undsrstsnd 70 b
Questioned by your decision. but you
hold that the company having institu.
ted the proceedings BY applying to
select the tracts in question. had As
sumed the affirmative. end must neces-
sarily show that the land WAS subject
to such selection. The instructions Of
your Office az given IN Circular dated
August Is, 1872. Copp's Land Laws.
page $50, in cases like the one under
consideration. are - follows sWhess
application is made BY . railroad oom-
pAny to select land ON which home
stsads or prescriptions have been here
tOfore made and cancelled for abandon
msnt or REIMBURSEMENT, and no Othsr
claim has since been allowed thereon.
by direction of this Office, Jon will per-
NIT the company 70 Rle With their ap-
plications evidence of the fact that the
land WAS abandoned or rslinQuishsd,
prior to the date when the right OF the
road attached under the grant,
In this case it appears that one ]. L.
II. Cooper had. prior to the time on
which the right of the COMPANY at.
tsched. filed = declsratory statement
including the tracts In scontrovsrsy.
Under the rule of your 0fics. therefore.
IL became nsoessary. when the eempany
applied to select these trscts. for it TO
show af{irmatively that said Hing wAs
invalid ct the time the right Of the
oompsny attached to ths lands inciuded
within its grant II n true thHt the
rule sDf your Office, shove cited, re-
quired the proving Of the negative; this.
however. the company bed undertakes
10 do by making the selection.
To the general rule above citsd By
the sttosnsy of said company thsrs are
certain exceptions. and the oase ssdss
consideration in my opinion falls anoo4
the exceptions. The excsptisas - I'D
rules are stated By Mr.. 0rseoleal. Vel.
l. paragraph ~. - follows
'Ts shis,gsosrsa rule. shse the bardsa
Of proof 10 on the party holding the
attractive, there are soos sxespsioos.
in which the proposition, though sega-
tive in its terms, must b proved BY
tho party who states Il.
Que class Of thsss exceptions win b
found TO include those oases In which
the plaintiff grounds his right Of aStiss
upon nsgative slisgas3oa. and wbne.
of Oourse, the sstnblishment ef this
negative is an ssssntial element In the
case.'
The negative assorted By The compa-
ny in this oase IVES that Cooper's fling
Vas invalid as the time when the right
Of the road astnohsd, an6 & wNe inea0.
bent upon the c0mpany 70 psove shae
fact before the sslectioo cOuld b q.
lowed. If Coopsr's Aling was valid a
the data - which the right of ths rod
attached, then the tracts covsssd b.
said 6liIg were excepted out Il he
grant By the terms OF the grant, nd
the co0pany coald not ssaeee eAs saos
thsreaitsr.
Whom Nr Abernethy, applies b en-.
ter the trscts covered by Coopeg's A.
ing. bssing his rigAs = sntsr tho saml
on the grosnd sAst Coopss's fling v0
valid st the tine when the riehs Of ths
road astachsd. and that the trasts wsrs
thereby excepted ous Of the grsat. II
will b. necessary tor him to show The
validity Of said Hling st that taos. an
less thak facs u established in this sen-
test, OF some proceeding of like char
sctsr before that time; IN other woeda.
the affirmative a the iasue unAs In thu
case, although differing IN character, il
brought By the company. 81 . private
paxtv NAV b osooIso I'D by oithoe porty
to ths coaless. and whea % ae11rsod,
must b proved b tAs party assamlaa
~. aAsrmafive. A this eoeo Woo II.