Washington standard. [volume] (Olympia, Wash. Territory) 1860-1921, 1891-01-16
THE TIMBER LAND CASES.
Land Fit for Cultivation by Ordinary
Processes Is Not Subject to Timber
Land Entry Regardless Of the
Value Of the Timber Thereon.

ClTcult COurt, III u CdSc Ill WHICH d. ID
Montgomery and others were parties
to the effect that where the cost d
removing the timber and clearing fol
cultivation exceeds the value of the
land for agricultural purposes, the
land is within the operation of the
timber land act, and is subject to en-
try as timber land claim. 1t may
be remembered that, shortly after the
decision OF the United States Circuit
ICourt, attention was called to the
fact that the impression made by the
construction which many placed upon
that decision and the general extent
ascribed to its operation, under such
construction, as rule regulating the
acquisition of title to public lands of
which the timber is valuable con-
stituent, was not in harmony with
this ruling OF the court on the real
points in issue in that decision, nor
with the doctrines uniformly held
by the Interior Department, which in
practice regulate the administration of
the timber land act. A review of the
doctrines held by the department was
then published, showing, in effect,
that the value of the timber upon the
land is of secondary Importance, and
that the adaptability of the particular
tract for successfully prosecuting agri-
cultural pursuits by the ordinary
processes, after the timber shall have
been removed, is the primary consider
alton.
The connection of J. B. Montgomery
and others with both the case in which
the decision of the United States cir
cult court was given, and the case in
which the present secretary has re-
Gently rendered his decision, makes it
OF interest to compare the views held
in the latter decision with the inn
preston consequent upon the con-
struction given the United States cir
cult court decision. inconsistently
with the department rulings as shown
by the conclusions stated in the re-
view of said rulings above mentioned.
It may also be found of interest, es-
pecially to those concerned with tim
Der claims, as confirming the con-
clusions stated in said review and as
the latest expression of the depart
mental authority on the subject.
In the decision referred to, two ques-
tions in issue were decided, viz:
Whether the land department has ju-
risdiction to entertain and pass upon
allegations raising issues affecting the
claimants right to q patent, after the
issuance of a final certificate as the ba-
sis of such patent; and whether, if
when cleared Of its timber, the land is
fit for cultivation by ordinary methods
of agriculture, title from the United
States can be secured under the tim
Der land act. Upon the first question
it is stated that it is hardly necessary
to cite authorities in support of the
proposition that, until patent is issued,
the department has authority to can
Gel entries upon sufficient proof show
ing that the land was not subject to
such entry, or that the entry was made
in fraud CT the law. Such has been
the uniform practice of the department,
and has been sanctioned by the decis-
ions of the United States Supreme
Court.
Upon the second and principal ques-
ton, the Secretary refers approvingly
to the decisions of the district Office
and the general land Office in this case
to the effect that as to whether the
lands are chiefly valuable for timber,
it may be presumed that they are val
liable for timber, for, if otherwise,
defendant (Montgomery) would not
have sought title to them tor that pur-
pose and under the timber act; that
the timber value is dependent upon
transportation, and any increase in
such facilities enhances the value for
agricultural utility; and that the sale
of timber ON the lands would in part,
if not wholly pay the expense Of clear
ing and fitting for cultivation. That
it matters not how dense or valuable
the growth of timber may be on said
land, if, when cleared, it would not be
under the terms of the act, unfit for
"That If the lands are found to be
suitable for cultivation when cleared,
the effort Of the claimant under the
timber land act, to show that they
are chiefly valuable for the timber there
on makes no difference, inasmuch as
they are, if cleared, fit for cultivation"
Reference is made, approvingly, to
considerations in former rulings of the
department that all timbered lands
are unfit for cultivation in their nat
ural condition, but if they may be re-
deemed and made susceptible Of cult
vation by ordinary farming process,
they are not within the purpose of the
timber land act, which was intended
to embrace within its provisions tim
bered tracts only in broken, rugged
and mountainous districts, with soil
unfit for agricultural purposes when
cleared of timber. If settler desires
to make home on the public land, he
has the right to select a timber lot, it
he chooses; and, if he does select tim
bered lot, he will not select poor one,
ii he is wise. The timber may be the
real inducement for him to make the