East Oregonian : E.O. (Pendleton, OR) 1888-current, 1908-04-29

clsion of Judge Whltson OF the fed
eral court of Washington regarding
the REIMBURSEMENT of land for the
benefit OF the reclamation service, a
topic of much interest in Umatilla
county:
Judge Whitson, of the district court
OF the United States, has handed down
his opinion in the case Of the United
States against Chris Hanson, in which
for the first time a judicial decision
is given respecting the right of the re-
clamation service to take possession
for reclamation purposes of unsurvey-
ed government lands upon which
homestead or other rights have been
acquired under the law permitting
bona fide settlers to enter unsurveyed
lands and to have preferential right
to make entry upon them for 30 days
after the filing of the survey.
Judge Whltson upholds the view OF
Attorney II. ]. Snively, counsel for
the defendant in the above action, and
decides against the contentious OF Dis
trlct Attorney A. G. Avery and his as
sistant. ]. B. Lindsey, declaring that
the government cannot take what has
value to the settler, and that mas
much as the land laws permit OF the
settlement and improvement OF un-
surveyed lands, some right must ac-
crue to the settler and which cannot
be confiscated without compensation.
Governments Contention,
The government contended in this
suit, which is test case involving
number OF settlers on the shores or
Lakes Kachess and Keechelus, the
sources OF the Yakima river, and In
which II is sought to oust Hanson
from his claim. that the reclamation
act gives the government power to
withdraw from public entry the lands
required for irrigation purposes and
to do so in the case of lands unsur-
veyed but upon which settlement has
been made without any compensation
to the settler.
Mr. Snively contended that mas
much as the homestead law gives the
right to go upon unsurveyed lands and
preferential right to make entry on
such land when surveyed. the provis-
ion is in the nature of a contract by
which, in consideration OF time and
labor expended by the settler, the
government gives him the preference
and that 1t is not the intention OF the
reclamation act to confiscate his in
| terest.
The lands in question were settled
many years ago by Hanson and the
others involved survey has been
made within comparatively recent
date but 1t has not been filed in the
general land office. and It is alleged
that 1t was not so filed at the instance
of the reclamation service In order to
prevent the settlers from exercising
their right OF entry under the home
stead law. The lands will be flooded
by the damming of the outlets of the
lakes.
In the course of his opinion Judge
Whitson says:
Judge Whitson's Views.
In addition to the usual averments
It is alleged that these lands have
heretofore been withdrawn from entry
or settlement Of any kind. The only
date mentioned in the complaint is
October, 1905, from which it may be
concluded that any withdrawal appli-
cable to the subject matter of the ac-
ton was made on or about that time.
1.-THE answer sets up that possession
Is sought for carrying out the intent
Of the reclamation act and that the
defendant prior to April. 1891, while
the lands were unsurveyed, settled up
on the land in question as a home
stead: that he has ever since resided
and occupied the same and claims the
same under the laws granting home
stead to actual settlers upon the pub
lie domain.
"The statement of what Is proposed
If the allegations of the answer are
true, at once challenges attention and
invites the most careful scrutiny.
Absolute ConfiscatiOn.
"If the plaintiff should prevail the
defendants improvements would ne
taken without compensation; his hopes
of ultimately acquiring title would be
destroyed and he would be compelled
to bid farewell to a home which he
has occupied for II years, relinquish-
ing the land over which he has exer-
cised domain by virtue Of a statute of
the United States, and in full compli-
ance with its provisions. while stand
ing impotently by to see 1t devoted to
other uses
considering that the court is asked
to become an instrument Of injustice,
1t is to be observed that 1t will only do
so in obedience to rules of statutory
construction demanding an interpre-
tatlon of existing statutes favorable
to such an end, for surely the pro-