The Parker post., 1913-06-07

prohibition against settlements, the
withdrawal order containing ample
and due caution against settlements
The land was restored on Jan. 10,
1910, and it would have been i'm
it not been for the inhibition contain.
ed in the order of restoration, that
the land so restored was not to be
settled upon, and no rights to be
acquired between Jan. 10, 1910, the
date of restoration, and April 1S,
1910, the date fixed for settlement,
1t was wholly unnecessary for the
department or this office to again
recite the requirements of the order
storation was made by the Depart
ment and promulgated by this office
Following your holding that Wells
settlement should be held to date
from twelve o'clock midnight or the
instant the land was opened to set
tlement, you cite in support of the
alleged superior right of Wells, the
case of Fleming versus Thompson,
17 L ID 56D, and Kinman VS. Ap
pleby, (S2 l. D 1907, Neither Of these
cases seem to be authority for your
contention, under the facts, in this
case.
The excuse of Wells that he did
not know of any inhibition against
settlement on this tract of land can
avail him nothing. The Government
had given notice to all the world OF
it's withdrawal of these lands, which
notice was of record several years
prior to the date that Wells took
possession, and was at least con-
structive notice to him and all other
would-be settlers.
| The government either had, or
| had not, authority to withdraw these
| lands from settlement, entry, and all
kinds of disposition, and if it had
the right to do so then Wells was Il
mere trespasser when he took pos
session of this tract in May 1908, and
it will be unnecessary to cite author
ity to show that a trespasser can not
| be a bona fide settler The settle
ment of Wells was in open defiance
of the Departments Order of with
drawal and he certainly can not be
permitted to now claim the fruits
of his wilful trespass. TO hold other
wise would involve the sovereignty
of the government and the dignity
of the department. The Department
exercised much care in preparing the
order of withdrawal, and particularly
cautioned everyone that no settle
ment of any kind could be made, so
| that no one need be misled Wells
could have seen this order at any
time, and it was on file in your
office.
Had Cauldwell gone upon this
land a moment after twelve o'clock
midnight, according to your conten-
| ton. he would have lost out, because
a trespasser was there before him
who had been in possession for two
years; and had Cauldwell gone on
the land moment before twelve
} o'clock midnight, he would also have
, been in the wrong because he was
not permitted to settle there until
the clock struck twelve that night.
Your logic and findings give Wells,
the trespasser, an undue advantage
over CauldWell and everyone else and
permit Wells to reap the fruits Of
his own wrong. If Wells could settle
on these lands, drive others away
and retain possession which would
ripen into an entry, then a hundred
or thousand others could do the
same and thereby defeat the govern
ment in it's project of irrigation pur-
poses. The true rule is stated by
the Department in the case of
Earnest Woodcock (3S L. d. 349).
1t is general rule, we'll supported