The sun. [volume] (Morris, Stevens County, Minn.) 1882-1895, 1882-10-28
A TIMBER CULTURE CLAIM.
Important Decision, OF Especial Ia
terest to the Northwest, by the Act
ing Secretary ofthc Interior.
Acting Secretary of One lnterior Joslyl

Acting Secretary of the Interior Joslyn has
.---.' -- ~: .,.--'-'r... '.s-.-
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. Soulhwick, involving the
latters 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 larg-
er number of acres than required. He then
sold his Improvements and possessory right
to Collins for q 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 q contest. In this contest the
commissioners decision was aversc 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 q 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 the lat
ter had also complied since his purchase,
and whether or not there were equities which
could operate in his favor. The acting Sec
rotary says.
In all contests the burden of proof is with
the contestant. The claimant is presumed
to have complied with the law, and until a
prima facie case is made out against him, is
not required 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 theallegations. 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 sho y, that both
Southwick and Collins cultivated the Land
and planted the required acreage of trees,
many of which were destroyed by grass
hoppers and ha:lstones without faI.lt on
their part.
This, testimony, in Mr.. Joslyns opinion,
was not overcome by that of the contestant.
The opinion of the local officersas 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 tesii-
mony," continues the acting secretary, IRE
suits in thes same doubt; and as am unw:ll-
ing to cancel an entry except on satisfactory
pr0ofo OF Noncompliance with the law. es-
peciai!y in a 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 / further
more state that | dissent from that part OF
your decision which states that equities in
favor of Collins can avail nothing i'll view of
the act Of May IA, $780, 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 the
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 the
same state and because the first section OF
the act of June, IA, 1873, 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
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
right secured to ole who procures cancel
laton of former entry under the provis.
sions of the act Of May. This provision
must be held to rela;e 10 those only who
are qualified under the other laws to make
timber culture entry. The inconsistency
of the two statutes under the construc-
ton of your (the commissioners deeis-
ion claims is manifest, because III that
case the act of May II, 1880. wound
allow any one to make an entry which the
act of June IA, 1873, 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 i'll 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 a
miens curin, or in behalf ofthe government.
Having exhausted his own right he did not
and could not acquire preferred right to
enter it were Sor1thwick's entry Cancelled, but
the tract would then become subject to the
first legal or qualified applicant"