, 1890-04-17

W,amSeroN, u. g., March ~, ls91 !
Eugene Trainer vs.. M. Y. Stilzel; mo-
ton for review
Tho commissioner Of the general land
ofiyo-S sir: THIS IL the motion iilcd by
NJ Y. Sutxcl asking that the decision Ol
the department OF October -A lS,s. g. L..
H., $50 in the above case be- considered,
and tnHt q rcshearing bc had upun the
ground ol newly discovered evidence
Hs set forth In the affidavit Of James ~.
Windsor hlcd with said motion. THIS j.
thc sole ground upon which u rc'hearing
L. asked,
This case comes before the department
upon the appeal 81 Trainer from the do
cisiun OF YOUR office refusing 10 permit
him tn amend his homestead entry so as
to exclude lot 10 ot section ,, township
- north, rugc u cast, Spokane Fails
Washington territory, ana to embrace
In lieu thereof lot Oi said section upon
which lac claimed settlement.
From the record IL appears that
Trainer lilcd his dcelnrhtory statement
March ~. ls,J, for lots I, ., ., I, s. - and
40, ol sald section ., alleging settlement
February ~, lsSn, Nnd pu September H.
1852, Transmitted his filing to homestead
entry.
On May T. 1884. stltscl made home
stcud entry Of lots o, and : oi said
section.
ON December rs, 1851, Trainer applied
toamgud his entry 50 ~ to exclude lot lu
and embrace lot Z, alleging that he had
resided on lot Z. and made improvements
thereon to the value OF 5000 and had
always supposed thai lot had been in
ciudcd In his entry instead OF lot 10.
In pursudncc of directions rom your
office. Trainer, ON April -. lSS5, iilcd
contest against the entry OF Stitzel, al
leging that by a clerical error lot 10 was
inciudri in his tirIiucrs) homestead
entry ~ lot z, that he never made amy
Improvements on lot 10, but settled
upon improved and claimed lot Z before
tlie ontry Oi Stitlcl, and which was we'll
known 10 Stitlel at the timo hc tStitzcD
made bis entry. Upon the fling OF said
cOutes; hearing was ordered and "a
decision rendered hy the local officers In
favor of tCstaut, which decision
was reversed by your office, whereupun
Trainer appealed 10 the department.
The department reversed the action OF
your oilicG hy decision of October %,
lass, in which 1t IL said;
Upon the merits tue evidence Is very
conflicting. IL is undisputcd, however,
that S,it2ol knew when no made his
homestead entry that Trainer had i'm
proved part 1f lot and That hc
claimed 1t as part OF his homestead
entry, nnd the testimony of Trainer,
that ho always intended TO enter and
thought he had entered lot Z instead of
lot 10 10 corroborated hy the fact that he
did considerable work upon said ot Z,
and bv the fact that tho shape OF the
tract of lnud, IL lot " included and lot
10 excluded would be morJ convenient
for n farmer.
"TAkng tho evidence rs whole,
am of tho opinion that Trainer contest
should he sustained, and as hc has 10.
|. linquishcd all claim tO lot 10, he should
bo allowed to amend his homestead
entry ms tn include sliiI lot T.
The newly discovered evidence upon
which IL II asked that said decision be
revoked aud a rchearrg ordered l. con
hlnod IN the affidavit uf one james III.
windsor and Is substantially as fol-
lowsi That he has known Trainer for
ten years and during that time was
familiar with the land embraced In his
homestead entry; tnnt ever since
Trainer Tiled on the land ns q pro.
ompior ho twitness) has lived in tho
vicinity OF lot !, excepting tlirce years,
FROM 1881 to 1887, when he went 10 CALI
fornia; that before lac went Ia California
he had several talks with Trainer
about what he claimed ns his land.
aud that In April, 1881, witness told
Trainer That he intunlcd to enter lot Z,
and asked Trainer ~ 20 with him and
look over the lines; that atiiunt and
Trainer looked over lot l. and tnat
Trainer, after looking over the land and
locnting the tines, came to the cnnrlu-
zion that his tTraincr's1 r'noc might in
cludc u few rods OF ground on loi Z, but
thai 10 IL did, he desired uiiiaut to deed
him an acre ar two. II aiiinnt shonId yet
Mis- patent; that at said time Trainer
6made no claim tina, his homestead entry
was in lot or lntondud to include IL;
that Trainer did not then claim any irl-
provements OH lot except a little plow-
kaight have included u iow rods OF plow-