The Ely miner. [volume] (Ely, Minn.) 1895-1986, 1896-02-05
AGAIN ON TAP.
Section 80 Case Again Before the Public
This Time at Washington


the state OF Minnesota for a hearing
on its claim TO a portion of section
3O'' as swamp land. was continued
before Commissioner Lamoreaux Sat-
urday afternoon. The argument was
opened by Attorney Judge, who
attacked the contention of the counsel
on other side that the claim was
barred by two years statute of limita-
ton. This law provides that such
selections are limited to two years
after notification TO the governor
that the survey had been completed
and confirmed. Mr.. Judge contended
that the other side had not shown
that no governor of Minnesota had
been notified of the completion and
confirmation in the shape of approved
plats having been sent to the surveyor
general was not notice to the governor
within the meaning of the statute.
In reply Mr.. Judge stated that he
did not so understand this. He cited
Secretary Smiths decision in the case
Of the state of Oregon against Rober.
in which it held that the statute has
no effect subsequent to selections.
Judge Best, who was sitting in the
case in company with the commission
er. wanted to know whether, when an
adverse claimant came between the
state and the United States. it did
not make statute of application apply.
Mr.. Judge claimed that it did not.
Under grant to the state it was en-
titled 10 swamp land and no other
claimant could acquire such land.
Mr.. Judge then came back to the
questions OF fact that in order to
establish the fact that the statute
| had run out, it should have been set
in motion by notice TO the governor
In support of his proposition to intro
duce the affidayits OF Gov. Hubbard
that no notice of survey had been
served upon him or any subordinate
during his term Of Office, Gov. McGill
swore TO the same facts as did Cover
nors Merriam. Nelson and Clough
The commissioner reverted to his
original position that notice to sub
ordinate was notice to the governor.
and held positively that such was the
case.
Attorney Judge then proceeded to
attack the argument and evidence
produced by the counsel for the other
side as TO the character of the land as
proved by the condition of the sur
rounding tracts. He produced a de-
cision OF Secretary Villas based on
Woolen's report in which the secre-
tary directed that all selections should
be rejected, and then the selections
should be made by agents in the field
Commissioner Lamoreaux seemed to
think that fraud was shown in desig-
mating certain lands as swamp which
were agricultural, and that the de-
cision did not apply to lands desig-
mated as agricultural. Coming to the
question Of imputed laches On the
part of the state, Mr.. Judge showed
that there was no one against whom
the state might begin contest. Sec
tion 80 had been in litigation before
the department for such length of
time that there was no one on whom
notice of contest could be served.
The state was to ask thecommissioner
to order hearing in order that the
tract might be proved swamp.
A general discussion then arose on
the recurring question from both the
commissioners and Judge Best as to
whether the filing of plats with the
auditor, even though by courtesy OF
the surveyor general, did not con-
stitute Official notice under the
statute. This discussion was wound
up in the following manner:
I'VE want a hearing before the
local Officers on the question of fact
said Mr.. Judge, but if you win de-
eide against on statute of limitation
only, we will thank you and will go
away satisfied"
Said Attorney Redington: II will
tell you how this argument may be
concluded in short order: Give us
the patent and then the state can go
| into court"
I'VE will never consent TO that
said both Mr.. Judge and Assistant
Attorney General Edgerton in a
breath.
The argument was then continued
on the question of wether the return
of the surveyor shall constitute the