The Northern Pacific farmer., 1882-10-26
A TIMBER CULTURE CLAIM.
Important Decision, Of Especial In
terest to the Northwest, BY the Act
ing Secretary of the Interior

terest to the Northwest, BY the Act
ing Secretary Of the Interior.
Acting Secretary of the Interior Joslyn has
rendered a very important decision involv-
ing the construction Of the law relating to
timber-culture entries. The decision was
rendered in the case Of James II. Wood
against George V. Southwick, involving the
Iatter'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
reversed this decision. Itappears that South
wick complied with the requirements of the
timber culture laws, cultivating much largg-
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 ayerse to South
wick and his entry was ordered Cancelled.
Mr.. Joslyn says it should be noted that the
equities of SouthWjck were not involved in
the hearing, but those of Collins only, and
were therefore matter for decision. The
only question was whether or not Southwck
had compiled with the requirements of the
law prior to his sale to Collins and IT,, lat
ter had also complied since his purchase,
and whether or not there were equities which
could operate in his favor. The acting Sec
retary says
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 ont against him, is
not required to defend by the introduction
Of testimony. In this case the burden was
not with So,lthwick 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.allegations, the claimant was
entitled to the doubt and the doubt and the
Allegations were not proved. There is evi-
dence to show, or tending to shoH, that both
Southwick and Collins cultivated the Land
and planted the required acreage of trees,
many of which were destroyed by grass
hoppecs and ha:lstones without fault on
their part.
This, testimony, in Mr. Joslyn's opinion,
was not overcome by that of the contestant.
The opinion of the local oficersas we'll 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 esame doubt; and as AM unwill-
ing to cancel an entry except on satisfactory
proofOf noncompliance with the law, es-
pecia'!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 | modify
your decision and dismiss the contest and
allow Collins to enter the tract. l further
more state that dissent from that part OF
your decision which states that equities i'll
favor Of Collins can avail nothing in view OF
the act of May IA, 1880. which gives the con-
tcstant Wood an iuceptive right after initia-
ton of contest an absolute right to enter the
contract within specified time where the
entry is Cancelled. Although such is the
provision Of the second section of this act,
il is not in my opinion, applicable
to the present case, because the testimony
shows that Wood has an existing timber
same state and because the first section ol
the act of June, II, 1878, person is restrict
ed to one such entry. The two acts must be
construed together. That of May IA, 1880,
does not enlarge the restriction contained in
that of June H. 1S78 but if one has exhaust
ed his rights by an entry under the latter
act or the acts OF which it is amendatory he
is disqualified from acquiring the preferred
riSht secured to one who procures cancel
latlon of former entry under the provis
sions of the act of May. This provision
must be held to relate TO those only who
are qualified under the other laws to make
timber culture entry. The Inconsistency
of the two statutes under the corstruc
ton of your (the commissioners decis-
ion claims is manifest, because in that
case the act of May IA, 1880, would
allow any one to make an entry which the
act of June ID, 1878, says he shall not make
The provision of the latter act is not express
ly repeated by the former, nor in my opinion
by implication. The two are harmonized
by giving the preferred right named in the
act to one who is qualified to make an entry
| under the act Of June, and such, l think
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 moi
and could not acquire a preferred right tc
enter it were Southwick's entry Cancelled bu
the tract would then become subject to the
first legal or qualified applicant