Los Angeles herald., 1892-05-24
KAWEAH TIMBER CUTTERS,
Judge Ross on a Demurrer De-
cides the Case.
An Opinion Which Settles Twenty
Five Other Cases.
The Land on Which the Timber Grew II
Claimed by the Ksweah Colo
ny Points OF the
Opinion.

JuuRe hOb6 yesterday lieu ~ "a
haustive opinion sustaining the demur-
rer to the cross complaint in the case OF
the United States vs. Walter Braddock.
This opinion virtually decides twenty
five similar cases regarding the cutting
of timber in the forest land claimed by
the Kaweah colony:
This suit was commenced to obtain
an injunction restraining the defendant
from cutting timber from certain quar-
ter section Of timber land situated in
township 15 south, range 25 east, Mount
Diablo base and meridian, of which the
bill alleges the government is, and since
the acquisition Of California has been,
the owner in fee. The defendant fled
an answer to the bill and also CROSS
bill. to which the government inter-
posed demurrer, now for disposition.
The croes-bill, in effect, alleges that
on the 9th day of October, 1885, the
land in question was surveyed unappro-
priated timber land Of the United States
and open to sale under the terms and
provisions of the act of congress of June
3, 1878, go stats. 89,) known az the tim
ber and stone act.
After giving an elaborate exposition
of the law points, the Judge says:
There can be no doubt of the correct
ness of the doctrine that where one
offers to do everything upon which the
acquisition of right depends, and is
prevented by the fault of the other side,
his right is not lost by his failure. 1t
is strenuously urged by counsel for cross
complainant that the present case comes
within this principle. But the difficulty
is that the cross-bill does not show that
the accomplishment was prevented
from entering the land in question by
reason Of any fault on the part
of the officers of the land
department of the government.
Such q fault, if It existed,
should have been set forth. The facts
in respect to the matter should have
been stated. It is not enough to charge
generally, as is done in the cross bill,
that the then register and receiver and
commissioner of the land office COM
bined to deprive cross complainant of
the land in question, without stating the
acts done or omitted to be done in pur-
suance of such combination. 1t is al
legged that the receiver of the land Office
refused to execute to the cross complain
ant receipt for the money rendered for
the land, and that the register refused
to execute to him a. certificate of entry
or purchase. And although there is. no
direct averment of the fact, it sufficiently
appears-the pleading being taken as it
should be, most strongly against the
pleader-that the officers Of the local
land Office refused to receive the money
rendered or to permit the cross COM
plainant to enter the land. Why, does
not appear from the cross-bill. In an
opinion by the secretary Of the interior
in regard to this same land, ia connec-
ton with other lands, rendered April 6,
1891, (Copp's Land Owner of May l,
1891, p. 35) it is said that the tender OF
payment was refused and the applica-
tion to purchase rejected by the local
officers for the reason that by telegram
of December "a, 1885, the townships in
which the said lands are situate were
suspended from entry or filing under
the land laws by the commissioner of
the general land Office; that such sus-
pension and withdrawal OF town
ships was on account of al
legged Irregularities and frand
on the part Of the claimants,
and that this order Of suspension and
was not revoked az to the
in which the lands in ques-
ton are situate prior to the acts Of con-
gress of September 18th and October l,
1880 (26 stats. 478 and 66O) purporting
to reserve the land in question, among |
other lands, for q park and other pur-
poses.
The matters thus stated in the opin-
ion OF the secretary of the interior can
not perhaps be accepted as facts in pass
ing upon the demurrer to the cross bill,
since that pleading omits all mention of
them; but it is sufficient ground Of OBJ
lection to it that they may have consti.
tuted the reason why the officers of
ernment refused to receive the
cross-complainant's money for the
land or to permit him to enter it, "The
commissioner Of the general land Office
exercises 9 general superintendence
partment, and is clothed with liberal
powers OF control, to be exercised for
the purposes Of justice, and to prevent
the consequences OF inadvertence or IT.
regularity, mistake and fraud, in the
that officer for the disposal Of the public
0OAAA0AHs \ASOAA w. 41Oa4AAOs - 4AOWsS
262) And by thethird section Of the
act under which the application in
question was made, the commissioner is
expressly required to give effect to its
provisions by regulations to be pre-
scribed by him.
As was Justly said by the secretary of
the interior in the opinion to which
allusion has been made, an application
to purchaee timber land under the act
of June 8. 1878, is certainly, az against
the United States, of no greater force
than claim initiated by settlement and
residence upon and Improvement of
public lands under the provisions of the
late pre-emption law, in respect to which
the doctrine is firmly established that
the power of regulation and disposition
conferred upon congress by the constitu-
tion only ceases when all the prelimi-
nary acts prescribed by the statute for
the acquisition Of the title, including the
payment of the price for the land, have
been performed by the settler. "When
these prerequisites have been complied
WITH" said the court in the
Yosemite case, o supra, sthe set
tier, for the first time. ac-
quires vested interest in the premises
occupied by him Of which he cannot be
subsequently deprived. He ID then en-
titled to certificate of entry from the
local land officers and ultimately to q
patent for the land from the United
States. Until such payment and entry
the acts OF congress give to the settler
only privilege OF pre-emption in case
the l0udn are 0ffarad fnr un1n IN the