, 1890-04-17

y.
ing ON said lot In which contingency he
wanted aillunt TO deed to him the land
cncloseui that he then said to uiliaut
~ have no claim to lot whatever, and
II you want IL you arc entitled to IL, and
now that you arc going TO take II, will
tell you that made my entry In the
way did expecting to hold the lot from
entry In order to uuy II as timber lands
that aliiant and Trainer then made a
plat of the land according to govern
ment survey, representing approx.
mately On paper the lines and corners Of
said section ON which Trainer marked
his land os lots |, ., 3, I. :, o and 10, and
ailluut marked on said plat lots ., O.
and II, as the land he intonded to
takci that ailiant ana Trainer had said
plat with them when thoy went TO look
at the land that he was IN California at
the timc Of the contest and that he did
not communicate these facts to Stitlel
until five or six days before the oXecu-
ton of this AFFIDAVIT.
10 this thU claimant makes reply
under oath, that all the statements made
In said affidavit as To the conversation
with him By Windsor are false in every
particular especially Us to the alleged
admission of claimant. lie also tilcs n
number of atiidayitS by persons who
state that thoy are acquainted with said
Windsor ana that from knowledge bf
his reputation for truth and ycraciiy
they would not believe him on his oath
also the affidavit of James Mullen, who
swears that stitzcl offered to pay him To-
swear lhat Trainer when he took his
land did not include nor intend to in
Cludu lOt1 and that Trainer had SO
stated 10 witness, and that aiiiant could
not swear to H.
Counter afllduvits have been filed by
SutIol denying the sta tclncnts contained
In the affidavit Of Trainer and OF his
witnesses, and impeaching the character
of the witnesses who sworc that they
would not believe Windsor ON his oath.
The conversation alleged by Windsor
To have taken place between himself aud
Trainer was in the month oil April, issi.
prior to the entry of Stit2ol. aud "a both
Windsor ana StitZei swear that StitZcl
had no knowledge 0i said conversation
until since the decision OF the depart
mcnt now sought to be reversed, IL *
evident that Stitlcl did not act upon this
Information when he made this entry.
Therefore the only effect OF this testi-
mOny would he to impeach the testi-
mony Of Trimmer that he had settled up-
on aud improved lot :, instead ut lot ~.
and that u was Intended to DO included
In boln hs pre- cmpiion iilingnnd home
stead entry IN place OF lot TO- whiCh was
a clerical mistake.
II seem, To- have been proved beyond
controversy that Trainer improved part
pi lot PRIOR 10 January, 1881, aud stit-
Eol admits ON his testimony that he
found improvements such as pluwing
aud brush fence, onlot when lac made
his entry
Al the hearing of s,id case Trainer
offered In evidence a diagram showing
a. Inn 4 4 I.H.N
been marked around by Zigkag hnc.
lie testincs that the diagram was
deputy clerk Of the district
court, who prepared his papers for him.
and that he supposed his filing was
made for the land indicated by said
diagram that he settled upon tho land
In 1850, amt built his house upon lot ,,
and that his house was iirst situated
partly upon lot . aud partly upon lot Z;
that be continued to improve and cuiti-
vltc lot . suppusing that IL was Cm-
hraced In his hling, and did know that
II was moi when he transmitted his filing
70 homestead entry. lilo further tcsti-
fled that he did not know of this error
until IN July, alter Stit2ol had made his
entry lockhnrt CnrrobOrated the testi-
muny ut Trainer as to his having in
tended to make entry Of the lots marked
~ the diagram; tnat In making ont the
Ming he supposed he was gcttiug II cor
rect, anu that attention was not called
to the error when the hling was trans
mutcd.
The witness. iockhart, In response to
the question III IL Is u TACT that u. s.
and Hid entry embraces lot TO- was not
tue appliratiOu different from what you
iutcudcdf' ausweTod; Yes, that would
be- the inference"
thinkit Is shown with reasonable
certainly fr1m the evidence submitted nt
the hearing that Trainer supposed hc WIS
making Ii- filing and subsequent entry
for lot = instead of lot 10; that acting
under this impression he cultivated and
improved lot T. which ndjoincd aud WIS
contiguous tn three of tho othor lots en-.
brAced in his entry, while lot ~ would
make Ills entry irregular la shape and
adjoining only one ether lot at the lar
end, leaving lot lying between. From
these lHcts and citcum stances the local
officers found that there was no doubt
that Trainer Intended that his entry
should embrace lot instead OF lot 10.
Cons .dpriug the alleged newly dis.
covered evidence in connection with the
testimony offered az the hearing, do
not see that IN justice has been done. or
that the newly discovered evidence | a of
such controlling character ns would
probably change that finding; said ovi-
deuce tending merely to controycrt or
impcach tho tstim0ny of u witness.
Tho motion i denied aud tho papers
are herewith Transmitted
Very respect fully.