The Worthington advance. [volume] (Worthington, Minn.) 1874-1908, 1882-10-26
A TIMBER CUIIIURE CLAIM.
important Decision, Of Especial In
terest to tho Northwest, Blythe Act.
ing Secretary OF the Interior.

ing The construction of the law relating to
timber-culture entries. ], The decision was
rendered in The case of@James H. Wood
against George v. Sou;hvick. Involving the
! Iatter's timber-cuhurc entry, made ID Octos
Der, 1874, near Grand Island, Neb..son an
appeal taken by John W: Collins from the
decision of the commissioner of the general
land Office, holding the entry forfeited
; Cor noncompliance with the law. Mr. Joslyu
reversed this decision. Itappears that Sou,l,-
wick complied with the requirements of the
timber culture laws cuit:vatins q much larg-
er number Of acres than required He then.
sold his improvements and possessory right
to Collins tor a valuable consideration.
Collins entered into possession and broke
and cultivated several additional acres dur:
ing the succeeding year, but Gid not apply
for entering the tract Until after Wood had
commenced a contest. In this contest the
commissioners decision was averse to Sou.h.
wick and his entry was ordered Cancelled.
Mr.. Joslyn says it should be noted that the
equities of Southwick were not invslyed in
the hearing, but those Of Collins only, and
were therefore mattcrsfor decision. The
only question was whetheror not So,ithwic
had compiled with the requirements Of the
law prior to his sale to Collins and the lat
ter had also complied since his purchase,
and whether OrnOt there were equities which
could operate in his favor. The acting Sec
retary says 49,
: In all contests the burden of proof is with
the contestant. The claimant is presumed
TO have compiled with the law, and unit; q.
prin,a facie case is made out against him, IS
not required toSdelcnd by the ;nJoduction
Of testimony. In tbs case the burden was
MT with T.,
button Wood toshow his coinRliance With
the ldW:s ;Ifthc ute~tdIit 8 teSti,n onys. was
SO Doubtful and unsatisfactory thh it failed
toEeatAblish the allegations theclaimaMt was
entitieti 10 the doubt and tl,e doubt md the
allegations were not proved There is Sevii-
dents& g show, or tending to- sho, :, that both
Southv ick and Collins cultivated the land
and planted the tiuredz acreage of trees
NAM Ot vi! :ch :, We're destroyed by, grass.
lnppe:s and ha:lstonesn-w without fault on
their part -;2o "a, 7sF sY!s': ,z,';t5,s;i ,t;s
7Th:s, testimony, I'M Mr.: Josyn's opinion.
was not overcome BY that Of, the contestant.
The opinion of'rl,e; local Officers as: well as
the commissioner, 60: :hat the preponder.
a,ice Of testimony was in favor 6f Wood, to
some extent indicates that it was, not
clearly SO. s: ...:,. a., .a.., 49,; =. +
.''Mv lown examination of the testi-
mony," Continues the acting secretary, ire
suits IN thesanle doubt; and as I am unw:ll-
ing to cancel an entry except on satisfactory
proof lf0i.non:compiance with the. law; es.
Improvements and MS. good Hath Is lappar-
eDt, and his lachcs, If any, resulted .f*om ig-
norance and lad 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
.aHow Collins toe,iter the tract: further
more state that dissent from that part OF
your dec sion which states that equities in
favor Of Collins can avail nothing in view of
the act Of May ii, 1880. which gives the con-
tcstant Wood an inceptive. right after ;nitia-
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
1t 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 the
same state and because the first section of
the act of June, ii, 1873, a person is restrict
ell to one such entry. The two acts m,lst be
construed together. That of May II, 1850.
does not enlarge the restriction contained in
that Of June ii, 1873; but if one has exhaust
ell his rights by an entry under the latter
act or the acts OF which it is amendatorv he
is disqualified from acquiring the preferred
right 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 constr,c-
tion Of your Cthe com.nissioner's) decis-
ion claims is manifest, because in that
case the act of May II, 1850. would
allow any one to make an entry which the
act of June IA, 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, i think,
was the intention ofconsress. Wood, there.
fore, could only institute this contest as a
miens curip, or in behalf ofthe government
Having exhausted his s>own righl, he did not
and could not acquire preferred right to
enter it were S0utlwick' entry Cancelled, but
the tract would then become subject to the
first legal or qualified applicant. . s= ..:5s
F " "--