Omaha daily bee., 1902-11-24

signed to duty. These were forwarded to
the general land ONCE. Parties we're always
given sixty days within which to remove
fences, l have no reason to suppose that
any failed TO comply with the notice. There
was an overwhelming popular sentiment in
favor of pulling them down.
Hire Men 60 Make Entries.
or June 80. 1902. 1 left Akron for Wash
ington on leave Of absence. On its termina-
tion l was assigned to duty In western Ne
braska. l arrived at Alliance on August 2
and left there for Washington City on the
night Of October 8. l found this section
better adapted to agriculture than Colorado,
although cattle are the dominating interest.
A very large area Of the public land is
fenced by cattlemen; settlers are intimi-
dated from asking entries within these in
closures. 1t is the common practice to hire
parties to file applications for homesteads
who have no intention to reside on or prove
up on them. 1t is the prevailing opinion
that no matter how barefaced the fraud
may be the entry is a good defense to a
suit brought to remove a fence. 1t is
claimed that such an entry gives color Of
title and that such land is not public land
and that II is not Unlawful to locate a fence
on 1t. My letters to the general land office
show the extent of the practice of procuring
such fraudulent entries. In April, 1901,
Miller & Leith hired about thirty negroes
to file on land inclosed by their fence. The
negroes never made any pretense Of living
on the land or cultivating 1t. On the same
day that the negroes made their homestead
filings at Alliance they went to the Sidney
land office and filed there for the benefit Of
one Phelan. All but two or three OF these
negroes have disappeared.
"a small rancher, Charles Herman, COM
planned of Miller & Leith's unlawful fence
that shut out his cattle from grazing on
public land, and Special Agent Lesser was
ordered to investigate the complaint. He
examined the fence and reported the entries
as manifest frauds. The entries were sus-
pended on his report, but he said nothing
about the unlawful fence and did not order
it's removal. Herman cared nothing about
the e%ntries; his objective point was the
fence. Just as good grass grows on land
covered by a fraudulent as by a lawful entry.
Herman wanted to get rid Of the fence that
kept his cattle from grazing; he cared
nothing about the unlawful entries; as to
him the entries were a mere incident of the
controversy. Yet so far as the records OF
the land office show the quarrel was all
about the homestead entries; nothing was
said about the fencing. TieTnan was made
to believe that there was no remedy to re-
move Miller & Leith's fence until the en-
tries we're Cancelled. 1t was calculated that
1t would take at least two years to cancel
the entries, and that as soon as they were
cancelled others would be filed. In this way
Miller G. Leith expected to have a tenure of
the land for several years.
A Mr.. Lesser's successor, the matter
was turned oveymto me. l drove over the
land. examined dfesfence, investigated the
fraudulent entries, and then gave Miller &
Leith notice to pull down their fence. Mil
Ter & Leith we're Indifferent to the home
stead entries If they did not protect their
fence. / made the fence the principal OBJ
ject of attack, knowing that when the fence
fell the fraudulent homesteads would fall
with the fence. 1 only cite this as an ex-
ample Of many that l have had to deal with.
widows File on Lands.
my letters to the general land office show
the extent Of the abuses that are practiced
under the act of June s, 1872, that substi-
tutes the widow OF a soldier to the home
stead rights of the husband. These widows
are brought under escort of the cattlemen
to the Alliance land office to make home
stead filings on the land they have never
seen and never expect to see. The theory
on which such filings are made is that
under the act OF February 25I 1885, a party
can erect and maintain a fence on land COW
cred by such entries because they give
color OF title. and the land ceases to be
public land. In my opinion this is an err
roneous construction of the statute. My
practice has conformed to my opinion,
which is amply sustained by many decisions
80 tha no,trta Cunh antrIaG arc mt pnada
in good faith and give no color OF title to
the party maintaining the fence and the
entryman acquires no title that he can
transfer to anyone.
my letter OF September 20, 1902, to the
general land ONCE said, in reference to such
entries:
Everyone knows that these widows will
never return to make hnal proof. In my
opinion, 1t Is no defense * to i 2 civil Hron suit
10 remove a fence, to plead hat the fence
is located on land covered by such entries.
II 1t is the law, then all the public lands
might as well be surrendered to the feudal
lords. l think II competent for the gov
ernment, under section l. 10 snow nat the
ing a fence has mo claim or color OF title
made or acquired In good faith" In such
a suit the gist of the controversy is the
good faith of the entryman. II the entry
Is proved TO be collusive, the court must
me Tp the above. eleven more soldiers widows
applications have been filed. BY a strange
coincidence all these widows, entries are
In the same county, townships, ranges
} within the Enclosure of Bartlett Richards
the great cattle king of Nebraska.
"In this connection l enclose copies of
letters written by me to the district at
, torney at Omaha, and my notice to Rich
ards to remove his fence. l suggest that
the district attorney be instructed as to
his duty in the premises. The right Of the
government to remove a fence from public
/ land is simply a right Of a proprietor to
abate a nuisance; while the privilege OF
free range for cattle is analogous to the
old common law right, known as common
pasture: which, as Blackstone says, Is a
profit which a man hath in the land OF an
other; as, to feed his beasts, to catch hshI
TO dig turf, to cut wood, or the like. Fol
when lords Of manors granted out parcels Of
: land to tenants for either services done
or to be done, these tenants could not pillow
or manure the land without beasts, and
these beasts could not be sustained with
. out pasture, and pasture could not be had
!. but In the lords waste, and on the unen-
= closed fallow grounds of themselves and
the other tenants. The law, therefore, an
: nexed this right Of common as inseparaol'
incident to the grant of the lands II
80. a4.4-- .-.Huaf nrighf0n Ranek