Morris tribune. [volume] (Morris, Minn.) 1880-2000, 1882-11-02
A TIMBER CULTURE CLAIM.
Important Decision, of Especial In
terest to the Northwest, BY the Act
ing Secretary Of the Interior.

tCTcSI W IIic NOfGH"eSt, Dy tuC tACC-
ing Secretary Of the Interior.
Acting Secretary of the Interior Joslyn has
rendered very important decision involv-
ing the construction of the law relating to
timber-culture entries. The decision was
rendered in the case of James Fl. Wood
against George V. Southwick, involving the
latter's timber-culture entry, made in Octo
Der, 1874, near Grand Island, Neb., on an
appeal taken by John W. Collins from the
decision of the commissioner of the general
land office, holding the entry forfeited
for noncompliance with the law. Mr.. Joslyn
wick complied with the requirements of the
timber culture laws, cultivating a much larg-
er number of acres than required. He then
sold his improvements and possessory right
to Collins for valuable consideration.
Collins entered into possession and broke
and cultivated several additional acres dur
ing the succeeding year, but did not apply
for entering the tract until after Wood had
commenced a contest. IN this contest the
commissioners decision was averse to South
wick and his entry was ordered cancelled.
Mr. Joslyn says it should be noted that the
equities of Southwick were not involved in
the hearing, but those of Collins only, and
were therefore matter for decision. The
only question was whether or not Southwick
had complied with the requirements of the
law prior to his sale to Collins and IL. lat
ter had also compiled since his purchase,
and whether oTnot there were equities which
could operate in his favor. The acting Sec
rotary says:
T. In all contests the burden of proof is with
the contestant. The claimant is presumed
to have complied with the law, and until q
prima facie case is made out against him, is
noRrequired to defend by the introduction
of testimony. In this case the burden was
not with Southwick to establish his equities,
but on Wood to show his compliance with
the law: If the contestants testimony was
so doubtful and unsatisfactory that it failed
to establish the.allagations, the claimant was
entitled TO the doubt and the doubt and the
allegations were not proved. There is evil
dence to show, or tending to show, that both
Soutbwick and Collins cultivated the land
and planted the required acreage of trees,
many of which were destroyed by grass
their part.
This, testimony, in Mr.. Joslyn's opinion,
was not overcome by that of the contestant.
The opinion of the local oficersas well as
the commissioner, that the preponder-
ance of testimony was in favor of Wood, to
some extent indicates that it was not
| clearly so.
"My own examination of the testi-
mony," continues the acting secretary, re
| suits in the same doubt; and as am unwill-
| ing to cancel an entry except on satisfactory
proof of noncompliance with the law. es.
| pecai!y in case where the party has large
| improvements and his good faith is appar.
| ent, and his laches, if any, resulted from ig.
norance and bad advice, and there is no in.
tent to avoid his legal obligations, and in
view of all the facts in the case I modify
| your decision and dismiss the contest and
| allow Collins to enter the tract I further.
more state THAT dissent from that part Of
| your decision which states that equities in
| favor of Collins can avail nothing in view Of
the act of May IA, 1880. which gives the con
| testant Wood an inceptive right after initia
| ton of contest, an absolute right to enter The
| contract within specified time where the
| entry is cancelled. Although such is thu
| provision of the second section of this act
| it is not in my opinion, applicable
| to the present case, because the testimony
! shows that Wood has an existing timber
culture entry upon another tract in thu
same state and because the first section o
the act of June IA, 1878, person is restrict
ed to one such entry. The two acts must b
construed together. That of May IA, 1880
does not enlarge the restriction contained il
that of June IA, 1873; but if one has exhaust
ed his rights by an entry under the latte
act or the acts OF which it is amendatory h
is disqualified from acquiring the preferred
right secured to one who procures cancel
lation of former entry under the provis
sions of the act of May. This provision
must be held to relate to those only whl
are qualified under the other laws to max
timber culture entry. The inconsistent.
of the two statutes under the construC
ton of your (the commissioner's) decis
ion claims is manifest, because in tina
case the act of May IA, 1880, woul,
i allow any one to make an entry which the
act of June IA, 1878, says he shall not make
The provision of the latter actis not express
ly repeated by the former, nor in my opiniol
by Implication. The two are harmonic
by giving the preferred right named in tn
act to one who is qualified to make an entr
under the act of June, and such, thinh
was the intention ofcongress. Wood, there
fore, could only institute this contest as
miens curie, or in behalf ofthe government
Having exhausted his own right, he did M
and could not acquire a preferred right
enter it were Southwicks entry cancelled, br
the tract would then become subject to til
first legal or qualified applicant"
American horses are being imported int
i NJ