The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1890-01-05

Efof - <1on S1eE szsktE& - 3&4s 1ttss<61 sA-
that re kAxe ssseh nctEee and rat1 the psiblisheE
81 ire ~ wxrzr.er sscxsxnnfesf ~ hfm ~ TIE RI
ks.erag sid iAnd 61iee tae uslai - tor putr
isAAIng sach n0ssre. bat fhs said Defendant
never kaa1s Enzi pseol on said i3as ard never
pasI sheFefor
S. That ca TIE ssA dag Of January. $50 the
psanSsK AMI J. Esuee Easwis sppsia1 = locale
PoxteEneaa strip on said land. whseh applies
ton w1x on the 18th dsy q AugEsf. fSsa, Al
Lowell ~ said LAID dersytment as e January
8. EssA. SUBJECT however, &c BywAteT tdete1a-
ant right ~ preemptox That "a the @ofn OF
Auxmks. fss2 . confess in the land depart
mens relating - said land was
instituted between TIE psMnuu ana
Defendant on the ground that sid defendant
wsz not bona flde sefxler ard on the ground
thRs he had exhausted his pre-ernrftcn rights
tEst ca an appeal 80 tie hororaols commits
sionex Of The geneTAs land Office sa1d 0Esesf
f0nn6 as = fact from the evidence that said De-
fenaant Bywste1 was not boaa nde SETTER,
and ~. gnpeaI 10 the honorable secretary 81 the
interior that ofEcer from tire evidences foand
a. = fact that the defendant BywBfeF ~ TIE tine
be settIsd upon snd took possession OF the and
10 Dispute, together WITH other contiguous
lands. and at al times subsequent thereto, said
defendant Byweter wEs nos = toinntent pre-
eznpaax: that said defendant had nled pre-
empsiol declsrat0ry statement foF the north
west quarter Of section 4 township ias, rsngs .
New TIN. MINI, alleging settlement June le
1870 ard on Iune Is. 1873. the said BywaseT bad
fled deciaratoEy statement No. z1sA5 81 toe
same Office for the northwest quarter OF section
~ township 107. range So, alleging settlement
juno %, 1873, and that he had relinqusshed The
said ashamed Cling September g, iSIs, and
upon said findings said honorable secretary OF
the interior ordered cancellation Of the home
stead entry herein referred 20 In Fact No. 2 on
the ground that said Bywatsr had exhausted
his pre- emption right and that said homestead
entry was accordingly cancelled npon tho rec
orsis OF the land department.
&. That the defendants BFwateFss presumption
entry In controversy herein aud bis homestead
entry, 10 which ne attempted 30 commute his
said pre-cmption entry Was duly snd reeRlArly,
after fan c0ntest and hearing cancelled and
set aside by the honorable commissioner OF the
general land Office and upon appeal 70 the hon
orzble secretary OF the interior, By said cefen.
dant Chaylss II. Bywater, said orders Of cancel
setion were duly and regularly affirmed
& That on the 18th day of April, 1883, the
United states Of America by its letters patent
duly executed. conveyed to said J. Vance Lewis
and William G. Hill. plain IDS herein, said lot
II, and that said patent Is duly recorded in vol
Hme l OF patents. page IL. ia the once OF the
|, county auditor OF King county. And that AZ all
times since said 18th day OF April lSsS. said
William C. Hill has been owner in fee simple OF
and entitled to the possession of said lot II.
g. That the said ]. Vance Lewis and wife on
the 10th OF January. 1ssa, duly sold. transferred
and conveyed 10 the said william G. Hill said
LOT IL
10 That the defendant C. r. Bywater uniaw-
| faIIy and wronginIly and without any right or
authority of title 70 said ia:.d and against the
consent OF the plaintiff is in possession Of por-
ton OF said land and withholds the possession
/ thereof from the plaintiff wrongfnllv and M
/ lawfully, and wrongfully and unlawialiy refuses
aud fails 90 deliver possession OF said premises
& a - - a 1t 44arsf
C. NJ Bywster by plaintiff pnor TO the COM
lmeneement of this action. That Defendant &.
1. Bywater has so unlawfnlly and wrongfnily
hid and detained possession OF said lard frons
tls plaintiff William G. hin since the 18th OF
Al-il IsSS
!, That tbs value Of the rents, issues and
pro-ss OF saii premises from said last named
dates s250
Ichat the plaintiff has been further dam
as az being prevented from using said land
arc Getting contemplated buildings AID max.
ind Or improvements and being DELAYED in
the saIssf said land as town lots in the sum OF
$780,
Thf d@ndant claims under and by virtue OF
bis hoiAfsead entry, Transmitted from his pre-
eFnptlon nngs lie eonteRds that one of the
contfolinkq uestions, IL not the controlling one
Is, was Bygater's homestead entry Justly and
legally cancelled according 20 law by the secre-
fsEy OF the tterior7" From the evidence be-
fore him the secretary found as fact that By
water exerctst hts presumption right In Mime
sofa in the yqrs IS70-ISs. which was prior to
his remeyatr,s Washington This fact there
fore, Is conds sive upon as in the absence Of
fraud, mistaA or imposition. lee VS.. Johnson,
us Y. 5, - at cases cited; Baldwin vs.. STARK.
loa Z. y, 463 az cases cited Having exercised
the right once ne Law prohibits It's exercise the
second time, ami the fling OF Bywaters second
declaratory statment under the pre-emptgon
law on The land d dispute aud subsequent pro-
ceedings give binno rights in the land. Re-
Yised statutes, 226A Baldwin vs. Stark, supra.
In the contest beween Bywatre and Hill for
the cancellation If We homestead entry was the
question properly bssore the secretary Had he
jurisdiction Two iSues were raised in tina,
contest. First. 'HaA Bywafer exhausted his
presumption right beaase Of pnog hlings in
Minnesota Second. Had che failed to settle
on and inha5it the landss required By the pre-.
empfioalawy Both in tia local land Office and in
the general nd Office onf the second Issue was
passed upon. yet the first 'ssue remained. FOf
II was only on the questions ralsed By the allie
cations OF the respective strties taat the land
department decide upon, tits confined 20 such
Issues or questions, beeauke sat department ia
contest eases IS governed hAthe same rules "A
courts 10 formal pieadinEs Bit II the issue rs "a
sywsieT's prick presumption ding had not been
50 raised. still the secretary would have had jur
issiictson because there is "a reception 70 ths
above rule governing the couhs aud the land
department. 70 wit. .If in any aase Il appears
from The evidence that the claimsof the plant
1T ar moving party is against the law
50 thar IN DO event could he recovea inal jusig
ment CT decision, whatever be the nature or ex
'esf Of Che testimony upon the points, issuc thS
tribunal shoald not hesitate 10 aismks the pro-
eeedinyS' Lee IS. Johnson, supra. We quote
the language OF the United states supreme
court. - !, is 40 applicable 20 the proposition
whether the secretary had jurisdiction. whether
he could pass ca the question Of HnsAteri
exhaustion 81 hts pre-ern ptsoa right IA fAe con
test before hina ssfnxtead Of lawns
exhausted bis jurisdiction ia directing = can.
csiistfen q the entry, he was exercising onil
thai fast supervision which The law vess il
hin over az proceedings Instituted to acqsir.
portions az tne public lAad. which, up0n IA,
testimony, the question Of abandonment coslt
b. ~ no consequences. as 40 just right IN John
son' IN case Ct bar Eywatef - favor had beei
initiated ("
This Language bears with strong soree sxasas
Bywassr, hecaBse on tia question OF settlement
Tire commissioner Of the Land oaee also loun
That bYwAies was NOT hona fde settler"
We therefore end as conclusion OF Law
kiFss~Thas BywAief, the defendant. vas eos
rasnpetent IRE eF3ptsNuist IS the tine OF aIsr
his seelArsteFY statement
Fseeoad-ThsF his homestead easvy wAs 3lisea
sns i7sty cancelled asoor flag 80 law
FhlEa-That the plaintiff Is tac owneF IN r..
sna entitled 20 tAe possession az The land ar
dsasEes A. prayed foT
fsigmeHt n isveF of The plainssT ard azains
he eefenssat tof tAe possession OF TIE ssnl an
damages IS prayes faF. wish S4ssfs-
TEET rEBs1Ts NAY NJ KEx0EEn.
In the suit OF T. kenwsrd and w. K
f furry FEsfus5Ts - thA rztv - Nsa1rf