, 1882-11-17

winch i.Hp come ~tuIlt HAY I"'' ''''
po,sr,srd.aud must b, lytU 1- "7lv'u-'
,r u. tuy case without even lrr riEh'
vi ipp,aL ,..
lner t1 Act ui II May Il, i'Ho. : con
t,staIl II Il uomv,trGd entry had ho
g.catcr nshi. tor hs Initiation "' q
contest. than amy ,t3,r person anu
the Iand upon Cau,euai on Z" lhT TN,
,rv became ourI,ct tu tnr inst legal
RIpncant wL,t. er such applicant WAS
the Cuutcs taut or HuothtI NIr was
under tuat act tuc preference llEht ol
entry hv one who secures cdhceIla-
ton of 4 prlor entry aSSlguahlr. 1t Is
ale,sonal right IN him vino procurcS a
CANCELLATION.
Sixty days T. lowed in which to purchase
the tract under Act of june 10, lSSo
DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRLTARY.
WASHINGTON. d. c., September -, lhS2.
The Commissioner of the General Land
Ctfi e: -.
Sn:-I have considered the case of
John Weber VS.. Wm. II. Shappell,
involving the W. hf Of 5, E. qr, Sec.
26. Tp. 5, II. 15 W., Bloomington,
Nebraska, on appeal of Jas. White
sell IRON your decision Of August H.
1881, dismissing the contest and rein
stating the entry of Shappell.
The records show that Shappell
made homestead entry of the tract
October 10, 1878. and that on August
%, 1879, John Weber commenced a
contest against him for abandon
ment thereof. Shappell was not
present at the hearing, but, under the
proof submitted, your Office found
that he had failed to comply with the
requirements Of the law, and held his
entry for cancellation, which become
final April Il, 1880.
Shappell subsequently moved for n
rehearlng, which you granted, for
reasons stated, and new hearing
was ordered for July Ii, 1882. Web
or failing to appear on the day as
signed, Shappel moved for that rea-
son dismissal OF the contest, which
motion was denied by the local Off
GERS; but it appearing that Weber
had sold all his claim and interest in
and to both the contest and the land
to one Jensen who in turn had sold
the same to James Whitesell, upon
the motion of the latter he was per
mittei to intervene and continue the
contest in the name of Weber, but in
his own interest.
Weber had acquired no right
which he could transfer to Jensen OF
to Whitesell. Prior to the act Of May
H. 1880, a contestant of homestead
entry had no greater right, for his in
itiation of the contest, than any other
person, and the land upon cancella
tion of the entry became subject to
the first legal applicant whether such
applicant was the contestant or an
other. Nor was under that act the
preference right of entry by one who
secures cancellation of prior entry
assignable. 1t is personal right in
him who procTes the cancellation.
Whitesell has therefore no legal right
nor interest in the contest, and must
be held a stranger in the case with
out even the right of appeal from
your decision.
Weber, in the interest of the United
States, made his case, proved the
abandonment, and final judgment for
cancellation followed. Shappel asked
a new hearing to set aside the result
of former trial. This was granted.
1t was now his turn as plaintiff to
show cause why cancellation should
not stand, and the burden OF proof
was on him.
After his testimony closed, the
United States might rebut by any
witnesses at hand whether the former
prosecutor was present or not. The
good faith Of Shappell was in issue,
and he must show good reason or his
entry cannot be reinstated. 1t was
not the right of third party, but
the right of the Government which
was in question. The register and
receiver might admit any evidence
tending to contradict Shappel's
claim Of compliance with law, and it
was good public policy to conclude
the hearing by proper evidence rath-
er than to dismiss it on technical
motion and compel a new contest to
be brought by a stranger.
In my opinion the fact of abandon
ment by Shappell was clearly proven,
both at the original and the subse-
quent hearing, and his entry must ac-
cordingly be cancelled. In view how
ever OF the provisions of the act of
June 10, 1880 (2l Stat, 237), you will
allow him sixty days to purchase the
tract before making tho final order of
cancellation.
The papers transmitted with your
letter Of January -, 1852, are here
with returned.
Very respectfully,
H. NJ TELLER, Secretary.