The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1892-02-07
A Prior Claim Exempted It From
tho Northern Pacific
Grant.
Tho Authorities At Warrington Take tho
Same Wow OF Things Ms this United
States Court.

Appeals. Inc 2 IN controversy ID the
southeast quarter Of the northeast quarter
Of Section %, Township 10 north. range 4
west. and il situated on the north side Of
Mount Helena. It il not disputed that the
land is within the railroad grant limits, but
tho similarity Of this to the Sanders onss
lies in tho fact shat there were claimants on
it before the Northern Pacific filed its map
Of definite location; and that though the
original claimants were not entitled to it
their claims operated to exempt 1t from the
railroad grant; and that the claimant who
made the proper entry after the railroad
grant attached, is entitled to il.
The land has boon 6lsd on by many. En-
tries were made by Edward Jordan on Sept.
1, 1868, by Joseph D.. Patterson on Sept. 6,
1869. by Andrew w. Johnson on April 26,
1872, by Ernst Kranioh on July "a, 1885, and
by William Hogan, who contested Krarioh's
claim, on April IA, 1886. Kranich offered to
prove up in May, 1886, but Hogan contested
his claim. Tho local land officers at Helena
rejected Krsnich's proof Of presumption,
for Noncompliance with the law, aud for
the reason that he left land Of his own to
settle on the tract in question. Kranich
appealed to tho general land Office. It is
this appeal that the assistant commissioner
has just decided. The opinion rays:
ION Dec. D, 1889, the cass Was taken up
and examined By this office to the extent Of
the railroad company's claim, which was
rejected for the tract in question BY reason
of Krsnich's claim thereof, which was sub
sisting July 6. 1882, the date Of defnits 10
cation Of the line OF road. No decision
was made as between Kranich and Hogan.
The railroad company appsaled from
the rejection of its claim, and on April %,
1891, the secretary of the interior modified
the decision of this office, on the ground
that a mere allegation of settlement at a
date prior to the definite location of the
road was not sufficient to work an excsp-
tion under the grant,. whore the declara-
tory statement containing such allegation
was not filed until after the rights Of the
company had attached, and directed that a
hearing be ordered that Kranich might be
allowed, if he could, to show that he WAS in
actual possession and occupancy of the
land at the date of the definite location of
the line OF road; and in case this office
should, upon the testimony to be taken,
find adversely to the company, then to de-
cide the conflicting claima of kranich and
Hogan, that all matters in dispute might
DO determined BY one Judgment. Under
local Office June %, 1891, all parties in in
tersst being present. Upon the testimony
taken, the local officers decided against the
railroad company; from which action ap-
psal was taken to this office.
"The testimony shows that Ernst Kranich
took possession of the land in question in
Ap'il, 1879; he repaired the fences, there
being about ten acres Of it fenced in con-
nection with land adjoining it on the west.
which was owned by Gust Ernst and Chris
Kenck, who purchased the same from one
Phaums. Kranich, it appears, took posses
c,op TOW Ncvuf ar n,,,l ia Yu.i 1910 ~
the land adjoining, when Phanme turned
over to him the tract in question. with the
fencing thereon. Kranich repaired the
fencing on this tract, made a ditch and
drained a portion of it, it being swampy,
filled the springs with manure, and cut hay
thersfrom in 1880, 1881, 1889 and 1883. He
also plowsd a small portion in 1881, but
broke his pillow and quit. He continued to
reside upon the adjoining land, and to pos
sess and claim the tract in question until
October, 1885. when hs removed to the lat
ter tract, having built a house thereon in
emption filing for the same July "a, 1885,
alleging settlement April /, 1879.
"Kranich had declared his intention to be-
come q citizen of the United States July &,
1882. and had not exercised his presumption
OF homestead privileges at that date, and
had such a claim by settlement, possession
and improvement Of the tract in question,
though he did not reside thereon, as he
could have perfected, and which excepted
the Same from the operation of the grant
upon definite location.
1T appears from the testimony that
Kranich did not w any land until 1856;
that be then was the owner by purchase or
otherwise, not stated in his testimony, Of
132 acres, the Ernst ma Kenck ,anch, adj
joining the tract in his presumption claim;
that he rented this line in April, 1885, to
his sou and brother for three years. for
which he received $1,000 a year. in cash, 40
he states it. From April, 1885, until Oct. l,
1885, when he removed to the tract in his
presumption claim, he lived with his son
and brother on his own land. which he had
rented to them AZ aforesaid. 1t thus ap-
pears that he removed from land of his own
to reside on the land in question, which
disqualified him as a %prs-emptor under sec
ton 2260 of tho revised statutes.
Ernst Kranioh's application to make
presumption proof is accordingly rejected
subject to appeal within sixty days.
"'Should the compsny's claim be fnally
rejected and this decision become final,
William Hogan, who made presumption Hing
for the lane IN question April IA, 1886, will
be permitted to perfect his claim therefor"