Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-10
OREGON SUPREME COURT DECISIONS
Fall Text Published BY Courtesy Turner Reporter Of the
Supreme Court

their decision upon the facts is con
elusive in the courts, except in case.
of fraud or mistake; but after tn
title has passed from the governmeL
to the individual the question be
comes one of private right and tn,
courts may determine whether tn,
patentee shall be decreed to hold thu
title in trust for another.
1t is also conceded that, where on,
has initiated right to government
land under the United States laws
and where, for the purpose of doinl
the required acts to secure his title
he is entitled to possession thereof
equity will protect that possession
against trespasser or one withou
leagl title or equitable claim, or 4
will maintain the possession of one
adjudged by the land department t.
be entitled thereto. In this case
however, the land department ha!
cancelled the entry of plaintiff ant
adjudged that defendant is entitled Il
the possession of the land.
Plaintiff contends that, as no time
is fixed by the Act of March 3, 1885
for the completion of the residence
and cultivation, the commissioner is
without authority to cancel his filing
for failure to complete such resi-.
dence and cultivation relying upon
the decision in the case of Charles
0. Tanning, 20 Land Dec. 297, in
which proof that his residence Is
upon land adjacent to that in cues.
ton and that it was so steep and
rocky that 1t was not suspectible ia
residence or cultivation, in which II
Is held that without such proof OF
residence and cultivation it was pro-
per to refuse to issue patent but
error to cancel the entry as he had
an Indefinite period in which to COM
plete residence and cultivation
That was not a contested case, how
ever, and in the subsequent case of
Burroughs V. Carroll "a Land Dec.
626, 1t is held that when the claimant
submits his proof he fixes the period
within which the residence and cul-
tivation must be completed which be-
fore was indefinite. 1t is there said (:
When the claimant submits his
proof he elects to stand or fall there
on. By his own act he determines
the time within which proof shall be
submitted; he fixes the period which
before was indefinite and determina-
bic only by the grantor, and in the
race Of contest will not be permit
ted If the proof is insufficient or
fraudulent, to cure his default. +
The submission of final proof
is a declaration on the part of the
claimant that all the requirements of
law have been honestly and fully
met y. By such act contest is
invited and if by such means the
fraudulent nature of the proof is dis
closed, claimant has no equitable
right remaining upon which to base
a request to submit new proof. If
there were no adverse claims and
the proof submitted was in some re-
spect unsatisfactory but untainted
with fraud as in the Tanning case
(supra), further opportunity might
be afforded claimant to submit other
proof"
When conveyance of land de-
pends upon condition to be per-
formed by the vendee and no time
Of performance is named, the law
will imply that it must be performed
within a reasonable time: II Wash
burn, Real Pro. IL. And the land de-
partment has determined that the Of
fer of final proof by a land claimant
under the Act of March 8, 1885, de-
termines the time within which resi-
dence and cultivation must be COM
pleted and this we deem a reasona
BILE construction of the act and in
accordane with legal principles.
These are questions clearly within
the jurisdiction of the land DEPART
ment and this record does not estab-
lish case for the interposition of
the state courts.
The decree will be reversed and
the suit dismissed.
Mr.. Justice Bean took no part in
this decision.
TempletOn v. Lloyd, MultnOmah
County
n