Fergus County argus. [volume] (Lewistown, Mont.) 1886-1946, 1906-07-10
AN IMPORTANT
LAND DECISION
Last One Given by Messrs. erassey
and Eldridge Before Retiring From
the Local Office.
Decision Is In Favor Of the Claim.
ant-What Is Desert
Land?


fee has just been forwarded to the
commissioner at Washington. The case
is that of Joseph B. Nedbed, contest
ant against Friederike Petersen,
claimant. The land involved is desert
land entry No. 1864. being the east
half of section IA, township 10 north,
of range II east. The decision is one
of great Importance, not only here,
but in many sections of the state. 1t
is as follows:
The Decision.
The allegations of the affidavit OF
contest are:
That the land is non-desert in char
acter and that claimant has raised
paying crops upon the said lands with
out irrigation. That claimant has not
z sufficient water supply 10 properly
irrigate or reclaim the land. That
she has not conducted water thereon
in such a manner as 10 properly or at
all reclaim the lands. and has not re-
claimed them. within the meaning of
the said act
BY the act of March 3rd. 1891, the
act of March 3rd. 1887 entitled. An
Act 10 Provide for the Sale of Desert
Lands in Certain States and Territor.
les" vas extended to Montana, among
other states. II was then prescribed
that:
Lands bordering upon streams.
lakes or other natural bodies of wa
ter, or through which there is any
river, stream or living spring. are not
subject to entry under the desert land
law until the clearest proof of their
desert character is furnished.
Lands which produce native grass
es sufficient in quantity. if unfed by
grazing animals. to make an ordinary
crop of hay in usual seasons are not
desert lands.
Lands which will without artifi
cial irrigation, produce an agricultural
crop of any kind in amount to make
the cultivation reasonably remunera
tive. are not desert lands.
Lands containing sufficient mois
ture to produce a natural growth OF
trees are not to be classed as deser
lands"
None of these requirements pertain
TO the land in contest. which is stu
ated on bench land There is no nat
ural water upon il or near it to over
flow it. There are no trees CROWNS
upon it; and that neither it nor an,
similar lands would produce nativ,
grasses sufficient in quantity. if unfet
by grazing animals TO make an ordi
nary crop of hay in usual seasons. i!
a fact patent and notorious and know
to all old residents of this section o
Montana, among whom are the Off
Gals of this office.
1t is therefore evident that, so fal
as human foresight can determine. the
land in contest fulflls all the require
ments of the desert land act as to its
being desert in character at the date
of filing
We are therefore of the opinion tha
the burden of proof TO establish its
teStant.
Reviewing the evidence upon this
allegation, We do not find anything tt
controvert the character of the LAND
at the initiation of this contest. II
has not been shown that any agricul
tural crops or hay have been grown
upon the land without irrigation.
Is Yet an Experiment.
During the last two or three year
settlers have been coming into thi
section, and, finding all the bottor
lands taken and the waters of tn
streams appropriated, have settled W
on bench lands with the view of tryin
to raise crops without irrigation A
yet these attempts are in the eXper
mental stage. If eventually it shoul
appear that paving crops can be raise
upon these bench lands in ordinal
seasons without irrigation. then thes
lands should be re classified and wit
drawn from entry under the desc
act, but until this is proved beyor
reasonable doubt and il is positiv
~ shown that a paying crop has bee
raised in an ordinary season withol
irrigation upon a certain piece or IAN
We do not feel justified in declarir
this land TO be nOndesert in chara
terri. The mere fact that crops ha,
been raised with the varying succe
shown by the testimony in this ca
upon land in the vicinity. is not of
self, in our opinion, sufficient TO co
trovert the character of the land
testified TO at the date of entry.
1t is further alleged that claima
is not the owner of sufficient wat
supply to properly irrigate or reclai
the said land. and has not conducts
water thereon in such a manner
TO properly reclaim the same, and h
not reclaimed said lands within Il
meaning of said act.
The conflicting testimony upon the
points rendered it necessary for Il
office to first inspect the condition
at time during the irrigating Sc
son when water would be require