Fergus County argus. [volume] (Lewistown, Mont.) 1886-1946, 1905-09-15
ROCK CREEK BENCH land CASE is DECIDED
Register
tested by Alfred Should Import
Rulng-The be Appealed
ant He Ultimately

| cultural crop of any kind in amount
to make the same reasonably remun-
| erative."
No resident of the Judith land dis
trict from 1881 to 1890, would hesi-
| tate for moment to swear that. in
his opinion, all alnds upon the Rock
creek bench would not produce pay
ing crops without irrigation. Thous-
ands of dollars have been expended
by private individuals and corpora.
tions, and millions are now being ex.
pended by the government, to irrigate
hundreds of thousands of acres Of
lands in the state of Montana similar
to those upon the Rock creek bench,
and in view of the situation as shown
by the evidence in this case as to the
| productiveness of these lands this
latter allegation can only be an opin-
ion. 1t is evidence that no one can
tell what land will produce until it
is cultivated.
The Only Question.
| We are. therefore. of the opinion
that at the date of the entry the land
in contest fulfilled all the require
ments of the desert land act, and that
the only question to be determined
as to the desert or non-desert charac-
ter of this land is: Is the character
of the soil the same and are the con-
ditions the same as that of lands in
the vicinity that are producing pay
ing crops without irrigation? Has the
land been cultivated, and If SO, have
reasonably remunerative crops been
raised without irrigation?
AS to the character of the land,
the witness Clyde Groves, whose home
stead adjoins the land in question,
testified to the crops raised upon his
land, and the office sustained claim
ants objection to the testimony (page
Al, of transcripD, unless it was shown
the character of the lands was SINH
lar. This witness in crossexamina-
tion (page 43), states
"On the south side of a coulee where
I raised good crop of wheat, the soil
is deeper and there is no rock like
there is on the north side Of this col,-
lee, and the rock come out to the top
OF the ground so the plow plows them
out in places, and the nearest point
my fence is to Mr. Moore's desert
claim, we couldn't get the fence posts
down some places more than three
inches in the soil until you struck
rock. Some places along ten or twelve
rods they would go through pretty
near a foot"
The witness CASTOR, page 4S, tes
titled that he is not acquainted with
the character Of the land in contest
The witness Saylor testified, page &C
. 67 and 6S, that he farmed the home
stead and desert claims of claimant
IN 1903. and raised IS bushels OF
wheat to the acre, and that the yield
? on both claims was about the same
and lat the quality of the land is
about the same page 69).
The witness w. E. Cummings tes
titled that. while he never farmed any
land in the vicinity of Moore's claims
: he thinks the character of the land
looks the same as other lands in the
vicinity (page 94), and in cross-ex
animation, page 92. he does not know
=, whether the soil on Moore's claim is
deep or shallow, but that the natura
growth of grass looks the same. Tho
testimony of the witnesses Robinson
osborne, Stapleton and Peregrine arc
to the same effect.
All of the witnesses for claiman,
are old settlers in the vicinity of the
land contest, and all testify that the,
; nave always considered and still main
tain, from an experience of ovel
twenty years in farming in the judith
basin, that the lands upon Rock creel
, bench, and particularly the land II
: contest, are desert in character. des
= lgnatlng desert lands as lands tha
Will not, each year. produce a payin.
crop of grain without irrigation.
We are of the opinion that the bes
> test as to the prOductiveness of tht
q land in contest is the result of ths
!, crop raised thereon without irrigation
!. IL appears from the testimony tina
! crops have been raised thereon dur
= ing the years 1902, 1903, and 1904
yielding eighteen bushels to the acr,
= in 1902 and 1903, without irrigation
y and 20 bushels to the acre in 1904
1t Is claimed by claimant that part O
!. the 1904 crop was irrigated, but, whetl
. er it was irrigated or not. we are o
q the opinion that eighteen or twent,
!. bushels OF grain to the acre, takin,
into consideration the cost of pre-
4 duction as shown by evidence, is no
h reasonably remunerative crop, an,
>. that the testimony submitted doe
!, not sustain the allegation of the al
!. fidavit of contest, that
= Growing crops have been raise
o thereon in paying quantities withou
/, artificial irrigation
= and that, while it appears that som
h reasonably remunerative crops hav
been raised on some of the older IL
cations in some seasons, the raisin
=. OF paying crops upon these land
n without irrigation is still in the e,
II perimental state, and that it has nc
# been shown conclusively that the Ian
in contest is not non desert in cha
acter
I, II is further alleged:
n. THAT the said claimant has not
|. sufficient water supply to reclaim tn
r same"
sc In support of this allegation pr
n testant has filed a list of water rigt
n, locations of the waters of Rock Creel
er marked Exhibit c. which has bee
certified to by the County Clerk
:e Fergus County. II is shown by tt
in testimony of the witnesses Cooper an
a. ElstOn that a number of these
S. cations were taken from Little Roc
Creek. an entirely different streaY
lg and that number of the other |
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