The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1890-08-23
TIMBER LAND Law.
An Important Decision by o.
s. Judge Hanford.
MANY CONTRACTS LOCALIZED.
Construction OF the Statute on Timber
Lands and Contracts for sale-syi-
Iabus OF the Court.

Construction Of the Statute on Timber
Lands and Contracts for sale-syi-
Iabus OF the Court.
A decision of more than ordinary i'm
portance was handed down in the United
States district court in Tacoma Wednes-
day by Judge Hanford in the case of
United States against David e. Budd and
J. B. Montgomery. The points covered by
the decision are chiefly as to the construc-
ton of the statute in defining timber lands
and also as to the necessity of having proof
beyond question Of fraudulent conspiracy
for the entry and purchase of timber lands
to invalidate transfers made soon after pur-
chase. The decision is far-reaching in its
effects and many contracts or purchases OF
timber lands by corporations, which have
been held by the officers of the land depart
ment to be fraudulent, are thus re-estab-
lished and legaIzed. Following is the sylla-
bus by the court:
EouITY- PATENT CANCELLATION - PURCHASE
MoNEY.-When the government of the United
States applies for equitable relief 1t must, like
an individual suitor, do equity on its part In
suit to cancel q patent for land on the
ground OF error in issuing it, when the paten-
tee is not guilty of fraud, IL is essential for
the government 10 return the purchase money
TO the patentee.
OFFERED LAEDs-Acr or JUNE 5. 1S7S-CoN-
sTRUcTIoH.-within the meaning Of the act
of June 8, 1857, providing for the sale of tim
Der lands in California and other Pacific coast
states lands which had been offered at public
sale, but not sold, by the United States, and
which were thereafter withdrawn from sale,
because situated within the limits of the land
grant to the Northern Pacific Railroad Com
pany, belong to the class:of unotfered lands,
and may be lawfully sold as timber lands un-
der said act
JAHE-TrMBER LAsDs.-The hilly, stony land
covered with fir and cedar forest trees COM
mon In the western part OF this state are
chiefly valuable for timber and unfit for culti-
walton within the meaning of said act, al
though the soil is not barren and may be made
to yield good crops after removal of the tim
Der and stumpa The true Interpretation of
the act does not require the substitution of
the word ''solely" for the word chiefly" nor
do the words unfit for cultivation" mean not
capable of being made at for cultivation.
FUNDAMENTALLY word improvements" as
used in said act, means valuable Improvements.
An abandoned and dilapidated cabin and rem
nant of an abandoned fence which are of no
use. are not such improvements.
FRAUD, INSUFFICIENT EvIDENcE.-The fact of q
patentee of the United States having con-
veyed the land within one month after enter
ing 1t in the land Office, and prior to the is
suance of his patent to q vendee, who, at
about the time of said transaction also pur-
chased other lands from q number of persons
who. within recent period, entered the lands
30 conveyed by them respectively under the
laws of the United States, is not a circum-
stance from which an inference, much less q
conclusion, can fairly be drawn that there was
nj nj hof vvA nafo md
said vendee, made prior to the entry whereby
the title to be acquired should inure to the lat
ter; and there being no evidence tending to
connect said patentee with any conspiracy, no
inference unfsvorable to him can be drawn
from evidence tending to prove that his ven.
from other persons made pursuant to agree.
ment ante-dating entry Of lands
eAME.-A purchaser from the United States, un-
der the oct above referred to, is not required
TO retain the land After perfecting his right
to il in good faith, the Jus disponendi imme-
diately becomes vested in him; and in q suit
to cancel patent on the ground of fraud,
without evidence Of fraud on the part of the
patentee. other than Is above indicated, the
prayer Of the bill win be denied.
The following from the opinion of the
court is of especial interest:
The act in terms makes no reference to
broken. rugged or mountainous regions, and
does not allude to the condition of the soil after
removal of the timber, and ] am not aware of
any rule or reason requiring the court to 90 con-
strue the statute rs to enlarge the limitation
which 1t imposes, or narrow its application SO
as to exclude all lands in the states and terri
tory named. except the inaccessible portions in
the broken and mountainous regions.
For the production OF valuable timber, strength
and fertility of the soil and conditions favorable
for the growth OF vegetation are necessary and
there are no timber lands in this state which
win not. after the removal of the timber, yield
crops Of vegetation, grains and fruit, and there
are no broken, rugged or mountainous regions
unfit for cultivation where valuable timber can
be found, and to give the statute the construc-
ten contended for. makes IL q self-contradition
and impracticable, and thereby nullifies it.
IL Is plain also upon the face of the statute
that congress intended that IL should be under.
stood, according to the ordinary meaning Of the
words and phrases used. The Introductory
words In the first section are, "That surveyed
public lands of the United States
"May be sold" - This language of the
statute itself carries q direct contradiction
of the assertion made in the opinion
OF Mr.. Secretary Teller, above cited that the act
contemplates such timber lands as are found in
broken, rugged or mountainous regions The
act was made to go into immediate effect upon
fts passage, and by its terms it embraces and
authorizes the sale of surveyed lands which ara
not found in broken, rugged or mountainous
regions, for it is q matter of history in this
country that settlements and improvements
usually precede the surveys, and IL is matter
OF continual complaint that the government
fails 10 extend Its surveys as rapidly as the az.
ricultural, numbering and mining industrial en-
terprises OF the country demand, ana IL is a
matter OF common knowledge that the remote
and more inaccessible regions, where the land
Is unfit for cultivation. have not been surveyed.
and no provisions for the surview thereof ap-
pears to have been contemplated.
To fairly interpret this statute the general de-
scriptive features of the country to which IL an
plies must be taken into account In each Of
the states named there is diversity OF climate
timber. soils and natural formations: this is es.
pecially true OF Washington, which NAV be
taken as representative of all, for the pur of
q more minute and particular description
Within this state are mountains, plains hills
valleys, rivers lakes, seas, forests prairies and
mines OF coal, iron and almost every kind of
minerals. Ii is divided by the Cascade range of
mountains, running north and south scross its
entire breadth. East of the mountains the
country is generally timberless and the land is
good and easily brought under cultivation.
however. IL Is not oil OF this description; there
are in this part of the state small areas of tim.
Der OF good quality, and the land is of inferior
quality for agricultural purposes, though not
barren. These timbered tracts answer the da
scripton in the statute OF the lands unfit for
cultivation, and chiefly valuable for timber. and
they are within the limits of the public SURVEYS
made and being made as rapidly as appropria-
lions can be obtained for the purpose
All OF the state west of the mountains is a
umoered region. though there are few small
prairies. The river bottoms aud valley lsnds
having rich alluvial soil are considered good
farming land, although, in its natural state. il
is covered by a dense growth of alder. ash, cot
tonwood and maple timber which is useful and
valuable for fuel and many other purnoses The