Fergus County argus. [volume] (Lewistown, Mont.) 1886-1946, 1905-03-15
AN IMP
LAND RULING
Final Decision Will AFFECT a Number
Of Desert Land Cases Now Pend.
ing in the Local Land Office.
RIGHT TO MAKE ASSIGNMENT
Question at Issue Reviewed at Length
by the Register and Receiver
View Of Local Office.

A matter of the utmost importanc,
t. assignees in desert land claims
the final decision in which will affec
the status of number of such claims
is now pending before the local lant
office. The case originated through
the suspension by the department o.
an assigned desert claim upon the
ground that when the entryman FLEE
he did SO with the intention of as
signing the claim. This proceedin,
the department holds to be illegal
The case is that of Phenia E. Lewis
assignee of Louis P. Dean, involving
desert land entry 1900. A motion t.
dismiss was filed by David Hilger, at
torney for the assignee. While the
Individual opinion of the local office
is to the effect that such a proceed
ing is not forbidden by the desert
land acts, yet in view of the rulings
OF higher authority, they were con
strained to deny the motion. The
case will now go up on an appeal, it
is expected.
After a full review of the facts III
this particular case. with citation If
the land laws and decisions bearing
upon it, the register and receiver, in
their decision, say:
The procedure required by the de-
rartment in an assignment is to file
certified copy of the deed and an
affidavit by the assignee, in which
there is no provision that the assig-
nee is taking the assignment for his
own use and benefit, and that he is
not required to take the assignment
Tor his own use and benefit is eviden-
ted by the fact that he can immedi-
ately re-asign; the land can be again
assigned. In fact, it would seem that
desert entry can be assigned adj
llbitum. If it is illegal for the entryman
to file with the intention of assign
ing, is it not just as illegal for the
assignee to take an assignment with
the intention of re-assigning?
This entry is suspended, not for
the reason that the assignment from
Dean to Lewis is illegal, but for the
reason that it appears and is admitted
by the assignee that when Dean filed,
he did so with the intention of assign
ing the entry to Lewis, and that
desert entry initiated with the inten.
ton of assigning is illcgal.
Section Z of the act of March 3,
1891. relating to desert lands, pro-
vides that desert entries may be con-
,sted as provided by the law relating
to homestead cases, for illegal incep-
ton, etc.
I'VE construe the first clause to re-
fer to the rules OF procedure in con-
tests, and the words illegal inception
TO mean an inception contrary to the
provisions of the desert land acts,
such as being timber or mineral land.
or non-lesert in character.
Admitting that Dean filed with the
intention of assigning to Lewis, did
he not file with the intention of doing
just that which the law expressly pro-
vdes that he may do?
"A desert land entry Is initiated by
fling the declaration. There can be
no assignment before filing. There is
1.othing to assign. Paragraph 2. page
81, of circular of January 25, 1904,
states:
Under the act of March 8, 1877.
desert entries were nu, assignable.
This is changed by the 7th section
of the act of March 8, 1891, which
recognized assignments after entry
THE language of the statute is:
AT any time after filing the declara-
ton, satisfactory proof being made.
a patent shall issue to the applicant
or his assigns
while we are unable to find any
statutory provisions in tine desert land
acts forbidding an entryman to file
a desert claim with the intention of
assigning it after he files, and our
individual opinion being that such
procedure is not an illegal inception
within the meaning of the statute,
yet. in view of the efforts of all
branches of the department to pre-
vent the entries of lands in the in
terest of others, and of the depart
mental ruling that "a desert entry
made in the interest or for the benefit
OF any other person. firm or corpora
ton. or with the intent that the title
shall be conveyed to any other per-
son, firm or corporation, is Illegal
we are constrained to deny the mo-
ton to dismiss, subject to right of ap-
peal within 80 days from notice here
Of