, 1888-11-22
LAND DECISIONS.
The War Between Retailers
and Marketmen.
How They Are in Conflict in
New York.
The Farmers Club--A Package Of Spin
--substituting Weight
for Measure.
The Oreponjan /

B. Montgomery, a suit brought by j.. 4.
Munday, q special agent Of w. A. ].
Sparks late com missioner OF the general
land office. to set aside patents issued to
ID. +. Budd, Lee Hoffman and others for
lands purchased under the timber act of
June 8, 1878, and subsequently sold to Mr..
Montgomery, Judge Allyn, in the district
court of Washington territory, at Van
couver, yesterday delivered an opinion, in
which he reversed the entire action of
Sparks and his agents. and held that their
Interpretation of the law was erroneous.
Mr.. Montgomery has been endeayorinR for
the past two years to have these cases
brought to trial, but they have been post
poned from term to term, and this is the
first time he has been able to get de.
cision.
THE JUDGES SUMMARY.
In summing up the testimony Judge
Allyn said: In this case Of the United
States against Montgomery, in reference
to what the district attorney calls the sec.
ond proposition. viz; that these were not
offered lands, in my judgment, from the
fact of the authorized agent of the govern
ment, having held them out as offered
lands, and the parties having purchased
them and the government having taken
the money, the suit cannot be maintained
without the return of the money. To per.
nit the agent Of the government to SO act,
and for the government still to keep the
money, would be very much in the nature
of permitting the authorized agents of the
government to perpetrate fraud. No OF.
fer having been made to return the money
/ do not consider that question as having
any particular weight in the case at all.
THIRD PROPERTY.
In regard to what is called the third
proposition, viz: that this property was
not taken by the original applicant in his
own interest but in the interest of this
defendant, there may be some suspicious
circumstances, but suspicious alone are in
10 event to be controlling in question of
fraud such as is alleged here, and the facts
must he established. The strongest wit.
ness in this case is Llan named Searles,
who gave some damaging testimony; but
5eares' record in reference to these very
lands was not of kind TO entitle his evil
ience to any particular credit. 1t was
clear that he han not dealt in good faith
with the government and it was very evil
dent TO my mind that Searles was anxious
TO have these lands thrown open for the
purpose of fling upon them himself, to get
the timber that was on them. That being
the case, his interests. his bias and his
animus were so evident that have given
but very little consideration to his testi-
mony as bearing upon this proposition In
IdCJ L may say tuuJ u kOUu UudDy VI tut
witnesses in their testimony, directly or
impliedly. or by something that was
brought out or was dropped by them, gave
the impression that they were interested
in that very same way. and to that extent
as q matter of course, they weakened their
testimony.
THE PHRAsEoLoGY.
The remaining propos itiOn, and the
main one in this case, is the nature of
these lands and the construction to be
placed on the phraseology, LANDS valua-
BILE chiefly for timber. out unit for culti-
tion." occurring in the act under which
they were taken. As the district attorney
very truly stated in his argument when
the evidence was submitted in this case at
the last term, very freely and frankly ex-
pressed my views as to the nature of these
lands. What has been said since by both
sides has tended to strengthen the views
then expressed. They were to the effect
that my ideas in reference to these timber
lands was good deal more liberal than
what the land office claimed as the proper
construction of the act
There were large number Of witnesses
in this case, who swear that the land is ag
ricultural in its character. 1t is averred
in opposition to their testimony that they
want to get this property, when thrown
open to entry. On the other hand it is
said that an equally large number swore
that it is timber land chiefly, and that
they are interested in getting a railroad
there. From the testimony in the case,
it would seem that they did want some
means of communication with the outside
world.
TIMBER AND AGRICULTURAL.
As TO the agricultural or timber charac-
ter of the land, the testimony of one man,
if remember correctly, was that he spent
nearly $1,000 and had been upon his place
ten years and now considered it worth
about 1880. From the testimony of
nearly all these witnesses. it is evident
that with the exception of seated portions
of bottom land, prairie openings, or some-
thing of that kind, it is practically lmpos-
sible for man to 90 there and settle as a
homesteadei and make anything like a
living during the term, perhaps, OF his
natural life. have no doubt about it,
As understand it, the theory of the
and Office upon which these suits are
brought is that the land is not unfit for
cultivation; that it can be made to grow
grass. Then there is no land but that can
be made agricultural by the use of fertili-
zers and proper system of irrigation.
Take. for instance, the desert lands of
California. No sensible man will say
that they are unfit for cultivation. By
the expenditure of large amount Of capi-
tai, and by irrigation they are made very
fruitful. But unfit for cultivation"
must mean something in reasonable
sence. There must be some medium line.
think ''unfit for cultivation" means by
the ordinary means adopted. considering
the neighborhood, the class of people and
the purpose for which it is intended.
In that sense. if the land. although il
might be subjecei to agriculture, is 30
thickly covered with timber that il. is prac.
tically impossible for an individuals
homeste .der--to subject it to an agricult.
ural condition. then it cannot be consid-