The river press. [volume] (Fort Benton, Mont.) 1880-current, 1882-10-11
cARopHERs va. KINGsBURY.
yhe Decision Affirmed by the COMMISSION
-sonae Extracts from the OPINION
Delivered.

we are indebted to the Washington
correspondence Of the Butte lf'terMoa's-
tain for the following:
In the matter OF the contested case OF
Csrothers vs. Kingsbury, involving the
question Of the validity Of deseit land
entry no. $50, made ut the office at Hell
ena by Adkin w. KiBsbury, March %,
1890. c~ornprIing $50 acres, the commits
si0ner to-dvy q nrn1ed the decision ofthe
local officers, dismissed the contest
against Kingsbury.
The commissioner says IN substance:
Upon q careful consideration OF the evi-
Gence, il appears that 81 large number OF
the witnesses for contestant are wholly
u~nacouainted with the /; nd and their
testimony is confined TO thelreHpeFience
in the cultivation OF bottom lands, other
fhan1haC ia question, = not more
than one-half the land claimed by con-
~tastart3s embraced ia desert entry no.
900 4 x X Nearly all the witnesses
for the contestant who profess to have
sav ac1uaintance with the land refer III
geueral terms to the land upon Arrow
creek. t'st or near CarOthers' house.
and "at or near where the Benton and
M~artingdale road crosses Arrow creek
They do not define the lines OF Kings
burv's claim, nor Go they appear TO be
able TO do 50. Arrow creek, in its couIse
uortheasterly, enters CfFothers' tand al
the southwest corner. }t then continues
it's course northeastelly across ms laiaa
for about one-quarter Of q mile, before II
reaches the point where itcfosses hl1Gs-
6ury'g south line at the southeast corner
Of clainl 800. CarOtheTB' house 10 near
thia point. There is g scattering growth
of trees along the creek, nos ! ne.oFe
il reaches Carotaela' land, but ~ ips
course through the southern portion o.
his claim and before reaching desert
claim 200. This evidently is the timber
referred to by several of the witnesses,
who saw timber "along Arrow creek,
above Carothers' house" Hence, the
witness, John La Mott, admitted upon
his cross-QxanAination that ne dla not
know that any Of the timber re erred &C
bv him was upon KingsbuTy,s clalnl,
whereas on his redirect examination lf
states positively that hesaW timber upon
land claimed by CaGotleIs'. Ia tht
same manner May be explained the fesIl'
mony cf other witnesses for the con
hstant, who testify that they saw tim.
her upon Arrow creek above Carotneis
house.
The Benton and Maltinsdale roao
crosses Arrow creek very near the cas-
line of Kingsbury's claim. North 9
this point it appears thai there are 2 lew
scattering. tr1es, some sage brush, grease
wood and blue-joint grass, upon q Low
spot Of ground, extending On either sid'
Of Kingsb lry's east line, but lnclndet
within the east line Of Carothers' claim
These facts are carefully considered il
weighing the testimony Of ali the wit
negses who speak Of having seen timber
green wood, sage brush, and blue join
grass growing st or near where the Ben
tor and Martinsdale road crosses Arrow
creek. He concludes: II am OF tn
opinion that the testimony in this cas-
fails to show that the lands in contr0
versy arc such rs can properly be con
sidereitimter lands withinthe pursley
Of the second section Of the Desert LAM
Act. ( think that the true intent of tn
law was to exclude from the operation G
said act, such lands as may properly 3
considered valuable on account oil tim
beg growing thereon. The timber ulo'
the land in question, appears so incon
siderable in quantity, that do not deer
it worthy of serious consideration IN TIA
disposition Of this case. ] am Of tn
opinion also that there is failure
proof to establish the n~on-desert charat
ter ofthe land liz other respects. LII
claimed that land which will produe
a brush, grease wood and blue joif
grass il essentially agricultural land an
will produce agricultural crops withot
artificial irrigation; but the qaantity
such land actually embrhced within th
lines Of Desert Entry No. 900 is SO sma
that In ray Judgment it would not wa
rant the cancellation Of said entry. TT
question as TO whether the lands on
braeed within such entry are sufficient
compact In form, is n which, III IN
n $3.50 o. Sn1