The DeSmet leader. (DeSmet, Kingsbury Co., Dakota [S.D.]) 1883-1891, 1885-12-12
xcept bis salary; that hc was not away

from the land IN the month q! Decem-
ber, 1881 January, February, March and
April, lSS2, at any one time to exceed
two weeks; that he was absent in May
driving logs, > but was back upon the
land in June and July. lie also testi-
fies that neither the y. Ludington Conf,
pany nor any other party ever had any
interest, present and prospective. III
said land. lie admits that be was
elected supervisor for the township OF
Escanaba, Delta county. in April. 1881,
and was reelected in 1882, and AYERS
that no one questioned his right to hold
the Office on account of having estab-
lished his residence on said tract in
Marquette county. He swears that the
improvements were worth from two
hundred and fifty to three hundred dol
lars, and that he cut no timber on the
land. except for clearing and building
purposes. until more than five months
after he had paid for the land, which
was in September. 1SS2. Burns is cor
roborated on material points by two
witnesses. Only two witnesses were
introduced Oh the part of the govern
mcnt, and there is no material contra
diction in the testimony. except as to
the value of the timber cut upon the
tract.
1t appears from an inspection OF the
final proof, that it should not have been
received 10y the district land officers.
In answer to the fourth question,
how much of the land have you broken
and cultivated since settlement, and
what kind Of crops have you raised T
Burns responded none Again the
pre-cmption affidavit was not made un-
til March II, 1883. before an officer Of
different county from that in which the
land is situated, and 40 sufficient ex-
PLANTATION is given therefor.
There can be no question that the
pre-emption laws require a residence
both continuous and personal upon the
land by the person who seeks to enter
it. When. however, a sufficient excuse
is given for temporary absences. which
does not appear in the present case, the
entryman will be considered construct
lively residing upon the land.-Bohall
vs.. Dilla (lll L, 5. An, sandell VS., Dav-
export (ll Copp l.. o. ~; Collins VS..
Narwood = G.. l.. l.. 593 J; James ii.
Marshall q l.. ID. 4lll.
>'But it is shown that Burns is sup
ervisor of Il township in another county
and performed the duties in 1881 and
lSs2. and that he voted in said township
il the spring and fall of 1882. by the
law of Michigan Ulowell An. Stat, Isl
and 1927, no one should hold said Office
unless he was an inhabtant OF the
township, and when Burns accepted the
Office and voted in said township he as
serted that his residence was in the
township Of which he was an officer.
He could not be bona fde inhabitant
of two places at once and at the same
time, and is therefore ostotped from
asserting that his residence was contin-
nous Oh !,le laid covered by his entry.
Burns could not plead Ignorance OF
/ the law as to the qualifications OF super
visors. He is presumed to know the
! law. and the fact that he was superin-
tendent of large furnishing lumber
company would Indicate that he was
/ man Of more than ordinary intelligence.
After a careful consideration OF the
testimony and the record in the case
am unable to find that Burns made said
entry in good faith.
"Iu the case at bar, the entry was
held for cancellation under the provis-
ions Of your Office circular of April 10,
1854. allowing the entryman sixty days
To make written application for u
hearing. Subsequently, the practice
was changed in accordance with eircu-
lar instructions from your office dated
May 8, and approved by this Depart
mcnt May 8, 1884, relative to hearings
ordered upon special agents reports, i'll
which it is stated. the hearings are or
dcred as part Of proceedings upon All
inquiry instituted by the goyernme1
into the validity Of alleged fraudulent
or illegal entries. The purpose is to
give entrymen full opportunity to be
heard in defense of their claim
"On April - last, this Department
approved another circular letter quoting
tie above, aud directing that claim
ants at such hearings will be required
to submit their testimony first, subject
To cross-eXamination and rebuttal.'
Such requirement where an entry has
been regularly perfected and the final
certificate issued is not in harmony
with the established rules Of judicial
procedure. and does not appear to he
necessary to insure just enforcement
of the laws.
blackstone (vol. 3. page 309,) says
that the final proof is always first upon
/ that side which afiirms the matter in
, question. and il has always been held
/, as a general rule, that fraud Is never
! presumed unless such circumstances
are shown as will legally justify such
an inference. That frauds are frequent
ly practiscd under the land laws cam
not he doubted; and that individuals.
and corporations who practice these
frauds are exceedingly ingenious in re-.
sorting to various subterfuges to avoid
detection is equally notorious. hut as
was said by Justice Mclean in 8 Pet.
l.. $. 6S2, Such acts cannot alter the
, established rules of evidences, which
have been adopted as well with the pro
, lection of the innocent as the punish
mens Of guilty. Whafton's Ev. Chap
Z, and Secs. 124S and l249; GreenleafS =
: Ev. Sec. 7s: u. s. VS.. Southern COloyar,
; do Coal Company. l.. ID. 20.
I'm the case of Franklin l.. Bash ct
{. al q l.. d. 1881, this l'epartmeat held,
quoting the lie COag cases Ibid, 7St)
9 that where "a special agent reports nom
compliance with the mining law in the
, matter Of expenditures, notice shoald
be given to the mining claimant that q
e hearing will be had and the special
r agent should be directed to produce
o witnesses tO sustain his report. The
reports are not evidence but sipAply the
hasis upon which the hearings are
S ordered. Where the special agent has
a reported an entry upon which hnal Ger
a tificate has been regularly issued, ille-
= gal or fraudulent. and : hearing has
been ordered under the circular Ut May
8, 1884, he should offer the proof in sup
= port Of his allegations, after which en-
= trvmen shOuki be present in defense.
s'rha eircntlar nunrnvp0 Anril ~ 1894