Morris tribune. [volume] (Morris, Minn.) 1880-2000, 1882-10-26
A TIMBER CULTURE CLAIM.

~
A TIMBER CULTURE CLAIM.
Important Decision, Of Especial In
terest to the Northwest, BY the Act
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 II. 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
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 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 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 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 compiled 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 the allegations. the claimant was
entitled 10 the doubt and The doubt and the
alterations were not proved. There is evil
dence to show, or tending to sho Y, that both
Sourbwick and Collins cultivated the land
and planted the required acreage of trees,
MANY of which were destroyed by grass
| hoppers anG ha:lstones without fault 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 testi-
mony," continues the acting secretary, re
| suits in thes doubt; and as am unw;ll-
IN ptrxyo scfo
| proofof Noncompliance with the law, es-
| peciaHy 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 l 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 dec sion 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 receptive right after initia-
ton of contest, an absolute rig ht 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 duOtueT GTdCI Ill Iuc
same state and because the first section of
J the act of June, H. 1878, a 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 IA, 1878; but if one has exhaust
! ed 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 a 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 construc-
ton of your (the commissioner'S 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 June14, 1873 says he shall not make.
| The provision of thelatter 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 a
mens curife, or in behalf ofthe government.
| Having exhausted his own righ', he did not
| and could not acquire preferred right to
enter it were Southwick's entry cancelled, but
the tract would then become subject to the
first legal or qualified applicant"