Omaha daily bee., 1903-01-12
RELIEF FOR The STOCEMEN
Colonel MOsby Suggests Plan to Soften
Fenoe-D Destroying BLOW.
WOULD SUSPEND LAW FOR SIX MONTHS
Writes 60 senator Daniel Recommend
ing Action by Congress 20 Prevent
Loss from Execution of De-
partment's orders.
tFrom a staff correspondentl

partments orders.
From a staff Correspondent
WASHINGTON, Jan. II. - (special) -
Colonel John s. Mosby has taken steps 20
advocate some softcning Of the blow which
will strike the cattlemen Of Nebraska II
the fence destroying order is pushed. He
advocates the passage OF a law by congress
which will suspend the anti-fence law for
ct least six months. On this matter the
following letter, written by Colonel Mosby
TO Senator Daniel of Virginia. will be Of
Interest to Nebraskans concerned:
ALLIANCE, Neb., Dec. s, 19J2.-Hon. John
W Daniel, United States Senator: Dear
the excitement IN western Nebraska pro-
duced by the orders of the land office TO
remove fences from public lands. The act
prohibiting 1t was passed February 20, 1885,
but has been a dead lettsr here until l came
las. August A very large portion OF the
public domain has been inClosed by big
cattlemen to the exclusion Of those who
nave small herds or want homesteads. The
connIVSnc po Of S9hs Th that sS l tbs trS @n5n tTs
claim a sort of vested interest In the lands
for grazing their cattle and set up a sort
ment. Then the appeal is made TO let the
tenclhg stand. even II wrong In the begin
ming, as II would be Injurious now to the
public interest to remove IT.
" " ANAR
As these fences have stood a long time
by sufferance | think some Indulgence
should be shown to those who own them.
But as an official ] have no discretion, but
must obey instructions and execute the
law. They are certainly an obstruction to
settlement and should be removed; but as
they we're erected by an implied license
and have stood so long by the acquiescense
of the government, good faith requires
that they should be removed with as little
damage to individuals as possible. Time
should be given CattlemEn TO adjust them
selves TO new conditions. just as Mr.. Lin
coin favored the gradual emancipation OF
and would be glad If congrt IS. by a joint
resolution. would suspend the fence law
for at least six months, or even a year.
This would put a stop to fencing public
lands, as nobody would build q fence that
would have to come down In a few months,
and the cattlemen would then pull down
their fences.
Last spring I wrote a letter to the gem
trsI land office recommending that the home
stead law be so Amended as to permit a
person In the semi-arid region to enter at
least one full section. Iuhink two would
Homestead 1sttsSi Of iISS ssrtguf msy support q
family. but 1t will not where land is not
worth much for anything put grazing.
settlement of the country. The president
in his message recommends it. Such an
amendment of the homestead law might be
embraced In a. joint resolution ~suspending
the fence law. l suggest that you confer
with Senator Willard. Of Nebraska and
Senator Gibson of Montana about ii.
| hope to see you soon. I am out on the
prairie enjoying Arctic weather; Very truly,
JOHN S. MOSBY.
About widOws' Leases.
Colonel Mosby finds some fault with a
circular sent out from the general land
ONCE concerning the rights Of soldiers
widows under the law. His letter is ad-
dressed to the commissioner, and reads:
ALLIANCE, Neb., Dec. s, 19O2.-The Com
nuiEEthnnr ~ Tho napaRoI L nnA na1na a.
In a Lester to you of August last l called
YOUR attention to the statement on page "a,
the land is cuitiyated in good faith the law
will be regarded as substantially complied
with. although the widow OF children may
pressed the opinion that this declaration is
In conflict with the statute 9sectfon 2307.
residence and cultivation which II IMPOSES.
This erroneous construction OF the statute
is the origin of the fraudulent soldiers
widows entries which nave been suspended
by the general land office. Under section
1901 of the revised s%tatutes a solder who
make a homestead entry is entitled 20
have his term OF service, not exceeding four
years, deducted from the period NJ five
years residence required by law. and is
allowed six months. after filing his declara-
tory statement within which to-cOmmence
his settlement and Improvement. But sec
ton 2S05 says mo patent shall be issued to
any homestead settler who has not resided
upon, improved and cultivated his home
stead for a period Of at least one year after
lie 6Hhl udNt GuillAtAGtu AUh AnlThNt-
ments." Section 23O7 of the revised statutes
substitutes a soldiers widow to the Lus-
bands rights under section 200 subject
Improvement therein contained" 1t does
not enlarge the widows rights beyond the
rights of the husband.
Interpreting the Law.
The words settlement and Improvement"
in section 2SOI OF the revised statutes are
clearly intended as the equivalent of resi-
dence, improvement and cultivation" in sec
tion 1905. for settlement on land implies
residence. Homesteaders are called set
tiers. The policy of the homestead law is
TO promote the settlement of the public
lands, But the widows leasing the land
for grazing defeats the very object of the
law. as the land was already grazing
ground before she made her homestead
entry, and the fences of the cRttlemen keep
out settlers. 1t Is the object OF the cattle
men to fence out settlers and preserve the
No matter how long a soldiers service
may have been, he Is required to have
resided on his homestead for at, least a
year before a patent can be issued to him.
The construction now put on section 1904,
by dispensing with residence for a widow,
converts a homestead right into an abso-
lutte, unconditional grant aud makes It
practically the same thing as a land war
Mexican war and the war of 1912, that could
be sold on the market and located on public
land anywhere.
term Homestead" 1t is a maxim of the
law that II never requires a man to do a
vain thing. Nhile the circular dispenSeS
with the Widows residence, IL still requires
OF her the same oath that It requires of
every entryman that l will faithfully and
honestly endeavor TO comply with all the
requirements OF law as to settlement and
cultivation; that / do not apply TO enter
the same for speculation. but I'm good faith
TO obtain a home for myself" etc. form
4-O65). OF course II Is -repugnant TO reason
20 suppose that congress intended that a
guardian OF infant children. or the infant
children, should actually reside on the
land, and II the land Is cultivated In good
faith this may be regarded as a substantial
compliance with the statute, as the reason
of the law Is the 4ife Of the law. But there
Is nothing more unreasonable In requiring
a widow with children to reside on a home
stead than TO require Il Of an old maid
who is presumed to have no children. The
circular Is either wrong In its construction
OF the statute OF II is wrong to require
such an oath OF a soldiers widow. Al
executive department may pass regulations
consistent with law for carrying laws into
effect, but cannot make a regulation IN con,
nict with law. Respf Ctfully,
JOHN S. MOSBH, Special Agent.