Fergus County argus., 1905-09-15
ROCK CREEK
LAND CASE
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(Continued from first page.)
examination, (page 262) that ON July
., l9o5' there was plenty OIL water III
the creek to fill all the dltches on
Rock Creek bench.
Also of the witness Eston, who
lestlnes TO flow, in the upper por-
ton OF the creek, of a large amount
OF water, page 3O1. On page oO6 ne
testlhes that he has not been within
a mile and half or two miles OF the
head OF the Cooper ditch since he has
been in that section of the country.
1t does not devolve upon this office
to determine the validity of the water
right locations upon Rock Creek. We
can only determine their status bby
the record as presented. Eliminating
the abandoned locations as shown in
the testimony, pages 515 to 519, in
Exhibit c., it must be held that there
are existing locations of the waters of
ROCK Creek, filed prior to the locations
OF claimant, of over 5000 inches, and
the light of the failure OF claimant
to establish the status of these loca-
| uOnS we are unable to determine
from the evidence what portion of the
waters OF Rock Creek are actually used
during the irrigating season by these
locators, or what portion of the wat
ers OF Rock Creek during the irrigat-
ing season are available for appro-
priation by claimant.
The witness Sayor testifies, page
81, that he farmed the land in con-
test during the year 1903, and that
there was no irrigation done that
year, though there was some water
in the ditch which ran through the
wheat field, which was the only ditch
on the land that year.
1t further appears from the tes-
t1mony OF claimant that in the year
1904 the water was not got on the
land until after the crops had headed
out, page 474 and 475), and had
fired or burned page 500, which ex-
plains the reason why there was a
difference of only two bushels per
acre between the crop in 1908, without
irrigation and in 1904, when the water
is alleged to have been brought upon
the land. 1t therefore appears from
the testimony that no crops have been
raised upon the land in contest as the
result OF irrigation. 1t is only fair,
therefore, to presume that had claim
ant sufficient water to reclaim his
land he would have got it on the land
before his crops had arrived at such
a condition that irrigation would be
of no benefit.
Should be Cancelled.
For these reasons we are of the
opinion that the entry should be can
cled. large portion of the testimony
has been devoted by contestant to an
attempt to show that the association
known as The Farmers & Ranch
mems Protective Association, of Moore
Montana, has used it's influence to
lntimidate contestant and his wit
nesses in the prosecution of this case,
and several exhibits of alleged at
tempts at intimidation of the witness
Peregrine have been filed.
1t does not appear from the evil
dence that the claimant herein the
organization, as an organization, OF
any individual member of this organ
iZation. has in any way been con
nected with any threats or acts of in
tlmidation against the contestant or
any OF his witnesses, and we con-
slider all the testimony upon this
phase of the situation irrelevant, i'm
material, and a useless expense on the
part of contestant
A motion has been filed to have
part of the cost of testimony taxed
to claimant upon the ground that:
"The said testimony piles up excess
sive costs upon the contestant
which will be separately considered
in connection with the motion.
An exhibit has been presented. con-
sisting of cottonwood tree sprout.
about four feet high. alleged to have
been grown upon the Rock Creek
bench without irrigation.
In view of the testimony connect.
ed with the filing of this exhibit,
(page $50, 521, and $3.50. In this con-
nection, and other testimony as 10
the growth of trees without irriga.
tion, and the expense of expressing
this exhibit. we do not deem it neces.
sary to forward it.
Will be Appealed.
David Hilger, of counsel for the
entryman in this case, and who is on
that side in other cases, stated to the
Argus today that the case would be
appealed to the commissioner of the
general land office, and carried on up
to the court of last resort if neces.
sary. Mr.. Hilger expressed the ut.
most confidence in the final outcome,
and said he had not the slightest doubt
that the ruling of the local office would
be reversed
THE decision in this case is a re-
markable one in some respects" said
Mr.. Hilser THE register and receiv-
er maintain that there is no similarity
between the various desert claims on
the bench, and that each one should
be adjulicated upon it's merits: that
the one just decided has no bearing
whatever upon the other contests and
desert entries. The decision decides
the following essential facts: They
hold that in the entry under contest,
under the departments regulations
that lands bordering on streams, lakes
or other natural bodies of water. or
through which runs any river Or upon
which there is any pond or living
stream, etc. can not be entered as
desert land; that the land in con-
troVersN does not come under this
classification They are a unit in the
conclusion that this land does not fall
under the classification of the depart
ment of land which produces native
grasses, sufficient in quantity. if I'M
fed by grazing animals. to make an
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