White Oaks golden era., 1884-06-12


no better right to an amendment which
would give him precedence over "B's"
entry than he would have to make an
original filing on land covered by the
same entry, except subject thereto.
The tract being unappropriated public
land, was subject to the first legal ap-
plicant. This was "B," and SO long a.
he complies with the laws, his rights
must be respected 1t is immaterial
that the improvements of "A" are
more valuable than those Of 3D." or
that the original filing was not upon
the tract settled upon, but by mistake
on another. 1t is sufficient that the
mistake was through his own laches.
In such a case ne whose negligence
causes the mistake, though innJcently
and against his own interests, must
suffer the loss, and not he who has
acted ia compliance with the law, aud
Is not guilty of negligence or wrong"
The secretary refers to several decisions
in support of his conclusions.
The missioner in support of his
decision upon the question of amend
mcnts refers to the cases of the Univer-
sity of California vs.. Black and that
of Newcomb QS74 and 1876. Ir the
former Black having filed for 100 acres,
without alleging any error or mistake
in his filing, made an amended D. S.,
Abandoning eighty acres of the land
embraced in his original filing claimed
by another settler, and took forty acres
to which he was advised there was no
valid claim, but which appears to have
been claimed by the University under
a state selection prior to the amend
mcnt. His claim to the forty acres
was rejected upon the ground that his
amendment was invalid against the
states selection thus in effect ruling
that an amendment can not be allowed
to defeat an existing adverse claim.
AS the case raised no question of error
or mistake in Blacks original filing,
the secretary does not consider it as
authority for the comm issioncr's rul-
ing, as obiter dictum merely, especially
as the secretary did not in terms rule
that such an amendment, even for er-
rcr or mistake, could be allowed to de-
feat an adverse claim.
In the case of Newcomb, also re-
: ferred to by the commissioner. Secre-
tary Chandler held that pre-emptor,
: who has misdescribed the land EN-.
bracing his residence and improve
ments, may amend his filing to cover
his settlement, unless by his laches OF
ncgligences he has barred his right i'll
, favor of an adverse claimant. In fact
: this ruling in no way supports the com.
missioner's ruling, but rejects the
/ ame,dmont Of ga" in so far as it de.
S feat "B's" entry. 'B" also alleges thai
8 "a" did not file his D. S. within the
time required by law, but that claim.
: ing settlement March l, 1881, and thu
1 land not having been proclaimed fol
: sale, he should have filed upon it with
. in three months from filing of tht
> township plat Or prior to August III
D 1881, wercas he made no record CLAIM
to it until he applied to amend hi
:, filing, after "B" had been scvera
s months upon the tract. The statute
say that one failing to file a D. S. with
Il in three months from the filing of th
/ plat under prior settlement forfeit
Il his right in favor Of the next settle
3 who complies with the law. The sec
J. retary says: "Had "a" filed after ex
c piration Of the said three months, bu
J prior to the adverse claim of "B' hi
filing would be sustained bu
l. "B's" entry, made long prior to the ap
l. plication TO amend, and when tn
), tract was vacant and unappropriated
must take precedence, and "a" can moi
$ under the statutes, defeat bis right
!, and deprive him of his improvement
by reason Of his own laches or mis-
e takes"
. The secretary also decides that "a
u was not legal pre- emptor by reaso
G of owning other land at the date 0
Il his settlement t-ReCielD.
l. An ingenious appliance il describes
. in the French journals, for facilitating