Omaha daily bee., 1902-11-24

or acquired in good faith, or asserted right
thereto, or by or under claim made In good
faith. with a view TO entry thereof at the
proper land Office Of the United States at
the time any such Enclosure was or shall
be made In Cameron aga.ast United
states GAS U. S. 3O0), the supreme court
said.
The act OF congress which forms the
basis OF this proceeding was passed in view
of a practice which hud become common
In the western territories, of inclosing large
areas of lands of the United States by
associations of cattle raisers. who were
mere trespassers, without shadow Of title
to such lands, and surrounding them by
barbed wire fences, by which persons de-
string to become settlers upon such land
were driven off or frightened away, in
some cases by threats Of violence. The law
was, however, never intended to operate
upon persons who had taken possession
nor was 1t intended that, in a proceeding to
abate "a fence erected in good faith, the
legal validity Of the defendants title TO
the land should be put in issue.
"In Garfield against United States (167
U. s. 525), the supreme court said:
Considering the obvious purposes Of this
structure, and the necessity for prevent
ing the Enclosure Of public land, we think
1t is within the constitutional power of con-
gress to order its abatement, notwithstand-
Ing such action may Involve an entry upon
the lands OF a private individual.
These cases establish the principle that
a collusive entry is no defense to a suit TO
remove a fence from the public land; the
defendant must show a color Of title ac-
CURED in good faith, and that the fence was
acquired by the entryman or by his express
license. Fences erected long before the SOL
diers' widows had filed applications for
homesteads within an Enclosure could not
have been erected by the widows themselves
or by their express or implied license.
"In United States against Cook (36 Fed.
Rep. S9O IL was held that il was not neces-
sary for an indictment for Unlawful fencing
to allege thai the defendant had no claim or
color Of title acquired in good faith, but
that was a matter to be shown in defense.
I'm such barefaced frauds as the soldiers
widows homestead entries 1t is immaterial
whether the burden of proof is on the gov
eminent or the defendant. The fraud is
self-evident.
Land entered for a homestead is not, un-
til final disposition before the Land depart
ment, so segregated from the public domain
as to be no longer land Of the United States,
but continues to be the property Of the
United States until a patent has been is
sued. On the same principle that a court
can interfere to restrain waste by the
homesteader, 1t can, by a mandatory %injunc-
ton, decree the removal of a fence located
by collision with an entryman, although
the entry may not have been Cancelled. In
such a case the decision turns on the bona
fdes Of the entryman. He may cut timber
or build a fence for the cultivation and i'm
provement of his land, but he cannot abuse
this right for mere speculative purposes.
II cutting timber or building a fence is the
object and not the mere incident Of the en-
try, then the entry is tainted with fraud
and a court will restrain an entryman from
committing waste or building a fence.
I'm SILVER against United States (159 U.
s., 1860 the supreme court said:
From this resume of the homestead act
1t is evident, first, that the land entered
continued to be the property of the United
States for five years following the entry
and until a patent is issued; second. that
such property is subject to divestiture upon
proof of the continued residence of the set
tier upon the land for the five years; third,
that In the meantime such settler has Il
right to treat the land as his own, so far
only as Il Is necessary to carry out the
purposes Of the act. The object of this leg
islation is to preserve the right of the ac-
tual settler, but not TO open the door to
manifest abuses of such right.
LAS in the soldiers widows entries for
the benefit of the cattlemen.
Very respectfully,