Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-10

LiEuFey v hanna, Umatllla county.
John H. Lawrey, respondent, V.
Charles Hanna, appellant. Appeal
from the circuit court for Umatilla
county. The Hon. Henry ]. Bean,
Judge Argued and submitted May
3, 1911 PendletOn. Douglas w.
Bailey, for respondent S. A. Lowell
lowell & Winter on brief) for APP
pellant EalSin c. j. Reversed.
Plaintiff brings this suit to enjoin
the defendant from interfering with
his possession of certain government
land, and for a decree that he is the
owner thereof, his right to purchase
which land having been contested in
the United States Land office by the
defendant.
BY the Actof Congress of March 3,
1885 (23 Stat. at L. 342) provision is
made for public sale of such part Of
the Umatilla Indian Reservation as
had not been included in the new
boundaries thereof, the price there
for being payable as follows: one
third at the time of purchase, one
third in one year, and one-third in
two years; and before patent shall
lssne for the untimbered land. the
purchaser shall make satisfactory
proof that he has resided, at least
one year, upon the land purchased
and has reduced to cultivation at
least 20 acres. By the Act of July [.
1907, (Sz Stat at L. 1907 further
sales are authorized to be made at
private sale. in conformity with the
provisions of the Act of March 8.
1855 By the Act dated June 29,
1900 (34 Stat, at L. 611) 1t is proyid-
ed that persons who have heretofore
purchased land shall be entitled to
receive patent therefor upon submit
ting satisfactory proof to the secre-
tary OF the interior that the untim
Dered lands so purchased are not
susceptible to cultivation and resi-
dence and are exclusively grazing
lands.
On June 30, 1906, plaintiff made an
pllcat1on to purchase from the gov
efnment under the above named
statutes, at private sale the S. w. u
OF Sec. B, T. 1, S. r. "a. E. w. M. of
said land, and paid 5000, the price
thereof, and the customary recent
was issued to him for the same At
the time of the application to pur-
chase he subscribed to the oath re-
quired as condition to such pur-
chase Thereafter about December
~, 1906, he offered final proof at the
United States Land Office at Ia
Grande, under the provisions of the
above mentioned act of date June 90.
ISU6, that the lands were grazing
lands only, and asked that upon such
PROOF, patent issue to him therefor.
Defendant contested plaintiffs mr.
chase on February 20, 1907, for the
reason that the land is not exclusive
~ grazing land and that plaintiff had
not resided thereon or cultivated the
iand or any portion of it. which con-
test was tried by the Register and
keceiver of the Land Office, and on
MAY l5, 1908, they made findings of
Iact thereof. They held that. when
pIamtin elected to submit his final
PROOF for patent, his rights should be
neld TO stand or fall thereby; that
there IS at least 26 acres of land sus
ceptible to cultivation and. with
some clearing, so or go acres. that
ne had tailed to reside upon or culti
Vate the land, and that 1t is more
valuable for agriculture than for
grazing; and recommended that the
entry OF plaintiff be cancelled.
On August 4, 1908, notice was dulv
issued To defendant that plaintiffs
entry hau been cancelled by the
commissioner of the General Land
Once upon defendants contest, and
ne was given the preference right to
purchase the land within 30 days,
On AnGust 6, 1908, defendant applied
to purchase the same, under the Act
OF July \, 1902 SUPRA, and made his
nrst payment, and Immediately there
after fnclosed the same; commenced
cultivation and built a dwelling
thereon
Plaintiff commenced this suit ON
November 20, 1908, to restrain defen-
uant from cutting trees on the land,
which 1t is alleged he was doing, and
TO enJoin him from interfering with
plaintiffs possession and to adjudge
plaintiff to be the owner thereof On
the trial OF the case findings and de-
cree were rendered In favor of plain
TN that he Is the owner in fee sim
PIE and entitled to the exclusive pos
session OF the land and perpetually
en1omng defendant from interfering
with plaintiffs right title, interest
and possession thereof. Defendant
apUeals.
Eakin, c. j, 1t is practically COL
ceded that equity will not Interfere
with proceedings before the officers
OF the General Land Office of the
United States, relating to the govern.
ment land, while the matter remains
In their hands for decision, and thar