Fergus County Democrat. [volume] (Lewistown, Mont.) 1904-1919, 1905-09-19

alton of this contest there were no va
cant lands left, there being 121 home
stead entries and % deserts. The land
in contest is surrounded by homestead
filings, except on the west which is
the desert entry of John c. Stapleton,
No. 7040, made December 2, 1901: it is
situated within three miles of the vii
lage Of Moore, a station on the Mon
tana railroad. situated in section 16,
township IA north, of range 16 east,
where there is erected grain elevator
with capacity of $4,000 bushels.
SPECIAL AGENTS REPORT.
We have gone into the resume of the
situation. deeming it necessary in the
adjudication of this case, and in view
of the fact that other contests have
been initiated against desert entries in
the vicinity of the land in contest, and
of the report of Special Agent Edgar
S. Foley upon the land in contest, and
the general situation of the lands up
| on the bench, and also as a reference
| in future proceedings.
We do not concur in the assertion
| of counsel that the status of the des-'
| ert entries in the vicinity of the land
| in contest. as to their being desert or
| non-desert in character, will depend
upon the decision of the case at bar.
| So MANY factors enter into this phase
| of the case, such as the character Of
the soil, situation of the land and re-
| CARDS natural moisture, distance from
market as a factor in connection with
remunerative crops, ETC., ETC., that
each case can only be ajudicated upon
facts as presented therein. The fact
that some lands in the vicinity of the
land in contest are producing payina
crops without irrigation is not in it,
self is not sufficient evidence that the
land in contest is non-desert in charac-
ter, unless it is conclusively shown
that the conditions are the same. The
fact that land is shown to be valuable
for mineral or coal is not evidence that
adjacent lands are in the same condi-
ton. 1t can readily be conceived that
a homestead may be filed upon a creek
bottom, containing sufficient moisture
to raise crops without irrigation, and
desert entry may legally be filed up-
on higher bench adjoining, the char
acter of the soil in which may be en-
tirely different, and upon which noth-
ing can be produced without artificial
irrigation. (The department has desig-
mated:
Lands bordering upon streams,
lakes or other natural bodies of water,
or through or upon which there is any
river, stream, lake, pond, body Of wat
er or living spring, are not subject to
| entry under the desert land law until
the clearest proof of their desert char.
acter is furnished"
There are no springs upon the land
in contest, the nearest water being
over four miles distant.
Second. Lands which produce ma
tive grasses sufficient in quantity, II
unfed by grazing animals, to make ar
ordinary crop of hay in usual season
. are not desert lands"
The register of this office resided
within two miles of Rock creek bench
for a period of ten years, and the re.
, ceiver within six miles for the same
, length Of time, and in addition to the
testimony submitted, of their owr
knowledge, know that the land in con
test would not so produce.
:, Third. Lands containing sufficien
e moisture to produce natural growth
of trees are not to be classed as des
ert lands.''
There is not tree growing in town
; ship IA north, range 16 east, or in an,
D portion of township 13 north, of rang,
. 16 east, until the foothills of the Snow!
mountains are reached.
q There have been four timber cultur
h entries filed upon the Rock creel
bench; three We're Cancelled, and fina
\ proof made upon one; the Sc IA, sec
4 II, tp IA n, 16 e, by Posy T. Elston
! the final proof in this case showed tha
a repeated efforts had been made t.
raise trees without irrigation, and tha
q the sprouts either winter killed o
a perished from drouth.
Fourth. Lands which will produc
!. an agricultural crop of any kind Il
; amount to make the cultivation reas
onably remunerative, are not desert.
= Claimants and witnesses maxim
a desert land entries are required t
swear:
"That said land will not, without ar
- tificial irrigation, produce an agricul
;, tural crop of any kind in amount
make the same reasonably remune1
, | ative."
- No resident of the Judith land dist
- rict from 1881 to 1890, would hesitat
~ for a moment to swear that, in h!
!, opinion that all lands upon the Roc
- - creek bench would not produce payin
20 crops without irrigation. Thousand
. of dollars have been expended by pr
;. vate individuals and corporations, an
:, millions are now being expended
a the government, to irrigate hundred
+, of thousands of acres of lands in TT
70 state of Montana similar to those VI
~ on Rock creek bench. and in view
-, the situation as shown by the evident
os in this case as to the Droductivene
!. of these lands, this latter allegato
"A can only be an opinion. 1t is eviden,
20 that no one can tell what land w
&C produce until it is cultivated.
~ We are, therefore, of the opinic
"A that at the date of the entry the lar
~ in contest fulfilled all of the requir
!, ments of the desert land act, and th
the only question to be determined
to the desert or non-desert charact
- of the land is: Is the character of Il
i; soil the same and. are the conitiol
. the same as that of land in the yicir