Aberdeen herald. [volume] (Aberdeen, Chehalis County, W.T.) 1886-1917, 1904-04-14
VIM E LYONS WINS
HOMESTEADERS SUPERIOR TIC
TIMBER LAND CLAIMANTS.
So Says Secretary Hitchcock. The Most I'm.
pOrtant Land Decision in Years. Burden Of
Proof Of Character Of Land Not on the
Settler.

Secretary of the Interior IIitchcock
has decided the land contest OF VIM. F
Lyons vs. Augustus Noe and Morris q.
Hill, over the S. W. ID of Section II, TIP
81 N, Il. 8, in favor OF the homestead
settlement Of Lyons.
At the first hearing, at the Olympia
land office, the register and receiver de.
cided against Lyons, holding that the
burden OF proof as to the adaptiblity o
the land for agricultural purposes was
upon the homestead settler. This rule,
Secretary Hitchcock says was error
Jesse F, Murphy. fortnerly register OF
the Olympia land office, now located in
Aberdeen, represented Lyons and carried
the case to the secretary of the interior
and, after two and one half years, won
the case. John A. kea, OF Olympia, was
attorney for the timber and scrip claim
ants.
The decision is more important for
this section than any that has been
been handed down in the land office for
years, and establishes the fact of the
prior right Of homesteaders over timber
land claimants, and is no small gratlf.
cation to Mr.. Murphy after his long, and
| we'll contested fight on behalf of the
actual settlers of the country.
| Below will be found the decision of the
secretary in full:
The COMMISSIONER OF THE
GENERAL LAND OFFICE,
Sir:-The land in controversy, was
.ormerly embraced in the Olympia
Forest Reserve but was subsequently,
eliminated from 1t by Executive order OF
July Is, 1901, and thereafter became
subject TO settlement, but not to entry
until November Is, 1901. On that date
Augustus Noe filed timber aud stone
application for the So SWA of Section
IL, I Il N, X. 8 W., Olympia, Washing
ton, with other land, and on the same
day Morris q. Hill filed tim Der and stone
application for certain lands including
the N % SWI OF said Section IL. No.
vember 16, 1901, William f. Lyons filed
his application to make homestead entry
Of the entire SWI OF said Section IL, al
leging settlement thereon September IL =,
1901. a hearing was ordered to determine
Me priority of said claims. The local otfic-
ers found that Lyons was not Il bona fide
settler and recommended that his appli-
cation be rejected. Your office affirmed
their decision and diracted that the
timber land applicants be allowed to
perfect their applications.
There is no controversy as to pri orty
Of claim. 1t is not questioned that if the
settlement OF Lyons prior to the date of
ouening was bona tide settlement made
with the intention OF complying with the
homestead laws it will defeat the appli-
cations of Noe and Hill which were not
presented until after the date on which
Ll on alleges he initiated his claim. The
ma erial question, therefore is whether
the settlement Of Lyons was made prior
to November 10, 1901, with bona fiJe
intention of taking the land as agri-
cultural lands and whether such settle
ment continued and was being main
tanned at said date.
The mere fact that the land is more
valuable for the timber than for agri-
cultural purposes will not of itself defeat
"a settlement claim therefor, although
its relative value for the timber and for
agricultural purposes may be considered
in determining the bona fides of the
settlement. The land may be of great
value for the timber growing upon it and
that may be its chief value, but it is not
for that reason taken out of the category
OF agricultural lands subject to settlement
and entry under the homestead law, if
it can be adapted to agricultural uses by
the removal Of the timber.
The witnesses for the timber applicants
testified generally that the land is
valuable timber land and that it is not
OF any practical value for agricultural
purposes. 1t is shown however by the
record that Henry Carter, the only wit
ness introduced on that side other than
the applicants, was not permitted to
state whether the land would be suitable
for agriculture if the timber was cleared
lie testified that there is creek bottom
land on one of the forties and a good
deal Of down timber on that basin, that
lays at the southeast corner Of the quarter
section, but when asked if it would be
good agricultural land if cleared OF the
timber, objection was made and he was
not required to answer. This was a
material fact that should have been de-
veloped, especially in view OF the testi-
! mOny OF the witnesses Tor the homestead
claimant that had already been de.
livered. to the effect that the chief value
of the land is not for it's timber but for
agricultural purposes, and that it would
be we'll adapted to agricultural purposes
if cleared OF the timber. The witness
Carter also testified that the tirnber on
the land is fine hemlock timber, but IL
don't know how merchantable it is"
The witnesses introduced by Lyons,
including himself. testified generally
that the land is not more valuable for
timber than for agricultural purposes.
Lyon testified that the land has very
little timber on it and that it Is first
class agricultural land, that the soil is
good and could be made productive by
the removal of the timber.
Hiram Hulet testified that the land is
practically level and in the rainy season
about one-half or two-thirds of it is
under water, but it is in good condition