The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-01-30


iessionai cruisers not only for timber lands
bat also for farming lands and from their espe-
Fence IN both OF these branches OF their occupa-
sion, they were equally competent to Judge both
kinds OF land. This business had led SONG az
them 70 examine all the tracts now in dispute
seals before the contest was commenced, as well
ss al the other lands IN that district of country.
Insy nad, on such tours of inspection, car
Iieo maps and made notes of the con-
aiuons as they found them. It must
pe admitted that this experience gave
them great advantage over the witnesses who
tesuned Tor the prosecution. The latter claimed
% Dc farmers, but ii this Claim rested alone on
what they had accomplished in that line of in
oestry, since taking up the lands on which they
We're then residing, it does not appear to be very
wen founded On this point, but without any
personal reference to these witnesses. il was
stated, on the other side that the ONLY persons
VINO attempted TO farm such lands. or who
sought Them for that purpose were strangers
woo had recently come 10 the country and who
ald nor know the character OF the land. II that
ee true, As matter of fact, il would necessarily
aFpiy 20 the government with sses aud tend TO
lessen the weight of their testimony III they
classified these lands as ft Tor agriculture on
tne limited. not TO say absence oil, experience
tney had had on similar lands in that vicinity,
II can hardly be said that their opinions should
DC taken as conclusive as TO the character of the
land, especially when a contrary opinion be
given by equally credible witnesses possessing
superior means of knowledge.
It IS also observed that radical disagreement
exists between the witnesses for the opposing
psraes In reference 10 the quantity and quality
ana what it would cost per acre TO clear it of
ana remove all the sfunps less than Il inches
IN diameter While the government witnesses
oid not make any pretense to accuracy, in mat
ters relating To timber il is found that their
estimates average about as follows: Amount of
timber on each subdivision, 10000 feet: value
Is IL stands, 30 cents per 600 feet cost of clear
ing the land, 800 per acre, The witnesses for
transierees made careful estimates OF the mer-
cnantabie timber on each forty acre tract, giving
an average OF over 100000 feet, worth 81 per
I'd. as 10 nj
these figures are necessarily approximations
only, their reliability depending on the honesty
ana intelligence OF the witnesses. IL is conceded
that the witnesses for the defense are the more
competent judges of timber on account of their
experience, and ii is not even suggested that
they were dishonest or in any manner interested
in the result of this contest
II may, therefore. be assumed that the amount
and value OF the timber on these lands are sub
stantie.ly SIS represented by the witnesses for
the defense. This would make the timber as ii
stands worth something over $50 per acre. 1t
furthermore shows that this land has
purposes 1t leaves the question open
whether or notit is chiefly valuable for timber
question has been held to depend on the quality
OF the soil without reference TO the value OF the
timber, tina cost of clearing or the value OF the
land after IL has been cleared. II is not
planned how the comparison of values suggested
by the descriptive terms above quoted can be
made If the value OF the timber be not con-
OF June g. 1885, and applying it 70 cases like the
one at bar ii view of the peculiar facts in the
case, II seems necessary to consider the value of
the timber as well as the cost OF removing il.
These facts are known and well defined while
the fitness OF the land for agricultural purposes
Is al best matter of conjecture and in this case
matter OF dispute.
In considering timber lands with reference to
their ultimate fitness for cultivation, the cost of
clearing them seems 70 be an important factor.
IL Is certainly serious. and NAV be O fatal,
obstacle
purely agricultural purposes II win not be
contended that congress meant to reserve these
lands from entry; yet If the expense OF
removing the timber be much greater than their
value, after being cleared, il is evident
they would never be taken. except for their tim
Der, and. ii they be not enterable under the tim
Der law they would be, practically, in state of
reservation. To enter them under the pre-emp-
ton or homestead law would be fraudulent
since the settlement could not be in good faith.
II would be obviously for the purpose of secur-
ing the timber and not for the purpose OF estab-
fishing home. It is in proof in this ease that
settlers on such lands. near those now in cues
ton, have generally abandoned them immedi-
ately after proving up. This shows either that
their settlements were not bona fde or that they
found il impTacticable TO maintain permanent
residence thereon. Whether they were dis
honest in applying for these lands, or unfortun-
ate in finding them unfit Tor habitation, il is
plain that such entries should not have been
made. The law should not be construed so as to
incite fraud or entail distress.
Itwould therefore seem pertinent to inquire
INTO ljie AIbfee OIL clearing SAID lands OF thelf
timber ana stunps, as tending to show under
what law they should be entered, assuming that
they are subject to entry under some act of con-
gress.
The witnesses for the government in this
case gave their estimates of the cost of
clearing the lands III the various en-
at al average of about 800 per acre.
This included the removal OF all sturnps unoer
sixteen inches in diameter. The witnesses for
the trans erees estimated the expense at an ay-
n
the intermediate figure 500, may be taken as
sufficiently near the truth Ii may also be taken
as sufficiently formidable to deter any intelli-
gent person from entering such land for purely
agricultural purposes.
This heavy expense, which must be incurred
prior to the cultivation of the land, and also the
great value OF the timber which is found TO be
$50 per acre, are facts concerning which much
testimony was introduced. and facts which seem
to be essential 10 the proper adjudication OF this
ard similar cases
Aside from the charge of fraud, which has
been eliminated from the 'supra), the prin-
cipal litigation under the act Of June 3, 1873 has
reiated 70 the character of the land to which
said act is applicable The language of the act
restricts Us application TO land 'chiefy valuable
for timber but unfit for cultivation" Taking
these words literally they would seem 10 refer TO
a tract which was partly timber and partly prai-
RE, aud that such tract should be classified ac-
cording TO its condition at the time of
Piled by the word chiefly should
be then made between Its value for timber and
lis value Tor agricultural purposes. Lana covered
by timber is maniiestly unit for cultivation,
and the enormous expense Of clearing il as com
pared with its value after being brought into
cultivation may absolutely prevent its ap9ropri-
alton for agricultural purposes. Admitting that
such tract had an ultimate value for agrieul-
ture its primary value is entirely due to its tim
Der, and its use for any other purpose is ueces-
serly remote and uncertain On the theory
that this comparison of values should be made
al the time Of the entry there would be no diff
Guilty in deciding the case at bar Nor could
no NJ n n iSpNf
test If the cost of clearing the land was 10 de-
termine its character. Notwithstanding the
fabulons values placed upon IL by the govern
ment " THESES il cannot be seriously conteuded
that il would be worth anything Ike 500 per
acre (the cost Of clearing) after being ready for
cultivation. The doctrine Of socalled ''intrinsic
value advanced by some OF the witnesses in
this case cannot be recognized as sound
The true meaning and application OF the words
'chiefiy valuable can have but one construction
when taken alone. They only involve matter of
figures. and in this case they are so dis
tine, that there can be no doubt rs 10 the pur-
pose for which they were the more valuable, at
ing, or viii be at any future tine while the pres
ent conditions continue. Nor would the
additional words, but unit for cultva-
ton, change the situation, II they
any time before the removal OF the timber or the
expense OF removing the same. Taking the en-
tire clause, valuable chiefly for timber but I'M
I'll for cultivation, and apply il % a tract all of
which is covered by timber, when should the
comparison be Instituted If not at date OF entry?
How should il De determined II not bv the mar
kct value of the Timber the cost OF CLEARING the
land and its value alterward for agricultural
purpOsosf While these are. in nv opinion the
material questions in determining whether or
not given tract Is subject 10 entry under said
act, il is conceded that this view is not entirely
in accord with previous decisions IL has not
been decided. ia any departmental constr elton
oil the law, that these questions should be g
n0red or that they may hot in any ease be con
siGercd Il has been he'd, however, that the