where the fact, with reasonable explanation for the use of the unusual names. was not established, nor proof adduced of the settlement on, and improvement of, the land. No such attempt was made, and if it had been it would, according to the evidence received, have signally failed. for the land, only a word need be said. to the public domain by said executive order, which is therefore deemed and considered to be wholly inoperative and void. AND WHEREAS, The laws of the United States provide for the removal of all persons residing or being found upon Indian lands and territory without permission expressly and legally obtained of the Interior Department. The position that, as the frauds charged were committed by officers of the United States, the court erred in not holding their acts to be binding, and in not giving to the patents the force of valid conveyances, is certainly a novel one. The Government does not guarantee the integrity of its officers nor the validity of their acts. It prescribes rules for them, requires an oath for the faithful discharge of their duties, and exacts from them a bond with stringent conditions. It also provides penalties for their misconduct or fraud, but there its responsibity ends. They are but servants of the law, and if they depart from its requirements the Government is not bound. There would be a mild license to crime if their acts, in disregard of the law, were to be upheld to protect third parties, as though performed in compliance with it. The language used in the case of Pope's Lessee against Wendell sanctions no such doctrine (5 Wheat, 293, 304). It was there used with reference to collateral attacks upon patents, in cases where the irregularities were committed by officers in the exercise of their admitted jurisdiction, and can have no application to the acts of offiin fabricating documents in the names of persons having no real existence. The patents being issued to fictitious parties could not transfer the title, and WINNEBAGO AND CROW CREEK RESERVA- hereunder that they will neither be perno one could derive any right under a conveyance in the name of the supposed patentees. A patent to a fictitious person is, in legal effect, no more than a de A strenuous effort is made by counsel to bring these cases within the doctrine declared in U. S. vs. Throckmorton, 98 U. S., Now, therefore, in order to maintain 61, and Vance vs. Burbank, 101 U. S., 514, inviolate the solemn pledges and plighted but without success. It was held in those faith of the Government as given in the cases, that the fraud which will justify the treaties in question, and for the purpose of setting aside of the judgment of a tribunal properly protecting the interests of the specially appointed to determine particu- Indian tribes as well as of the United lar facts, must be such as prevented the States in the premises, and to the end that unsuccessful party from fully presenting no person or persons may be induced to his case, or which operated as an imposi- enter upon said lands where they will not tion upon the jurisdiction of the tribunal. be allowed to remain without the permisMere false testimony, or forged docu- sion of the authority aforesaid, I, Grover ments, are not enough if the disputed Cleveland, President of the United States, matter has been actually presented to do hereby declare and proclaim the said and considered by the tribunal. Here executive order of February 27, 1885, to officers, constituting a special tribunal, be in contravention of the treaty obligaentered into a conspiracy; and the frauds tions of the United States with the Sioux consist of documents which they had tribe of Indians, and therefore to be infabricated, and presented with their judg-operative and of no effect, and I further ment to those having appellate and super- declare that the lands intended to be visory authority in such matters; and embraced therein are existing Indian thus a fictitious proceeding was imposed reservations, and as such, available for upon the latter as one which had actually Indian purposes alone and subject to the taken place. It was a fraud upon the Indian Intercourse acts of the United jurisdiction of the officers of the Land States. I do further warn and admonish Department at Washington, and not the all and every person or persons now in mere presentation to them of doubtful and the occupation of said lands, under color disputed testimony. of said executive order, and all such person or persons as are intending or preparing to enter and settle upon the same Decrees affirmed. TIONS, DAKOTA. A PROCLAMATION. WHEREAS, By an executive order bearclaration that the Government thereby ing date the 27th day of February, 1885, conveys the property to no one. There it was ordered that, In testimony thereof, I hereunto set my hand and cause the seal of the United States to be affixed. mitted to remain or enter upon said lands, and such persons as are already there are hereby required to vacate and remove therefrom, with their effects, within sixty (60) days from the date thereof; and in case a due regard for and is, in such case, no room for the applica- AND WHEREAS, Upon the claim being voluntary obedience to the laws and tion of the doctrine that a subsequent made that said order is illegal and in treaties of the United States, and this bona fide purchaser is protected. A sub- violation of the plighted faith and obliga- admonition and warning, be not sufficient sequent purchaser is bound to know tions of the United States contained in to effect the purpose and intentions as whether there was in fact a patentee, a the sundry treaties heretofore entered herein declared, all the power of the person once in being, and not a mere myth, into with the Indian tribes or bands, occu- Government will be employed to carry into and he will always be presumed to take pants of said reservation; and that the proper execution the treaties and laws of his conveyance upon the knowledge of the further execution of said order will not the United States herein referred to. truth in this respect. To the application only occasion much distress and suffering of this doctrine of a bona fide purchaser to peaceable Indians, but retard the work there must be a genuine instrument hav- of their civilization, and engender amongst ing a legal existence, as well as one ap- them a distrust of the National Governpearing on its face to pass the title. It ment, I have determined, after a careful cannot arise on a forged instrument or examination of the several treaties, acts of one executed to fictitious parties, that is, of Congress, and other official data bearing, to no parties at all, however much deceived on the subject, aided and assisted therein thereby the purchaser may be. Even in the by the advice and opinion of the Attorney case of negotiable instruments, where the General of the United States duly rendered doctrine is carried farthest for the protec- in that behalf, that the lands so proposed tion of subsequent parties acquiring title to be restored to the public domain by said to the paper, it cannot be invoked if the executive order of February 27, 1885, are instrument be not genuine, or if it be ex- included as existing Indian reservations ecuted without authority from its supposed maker. (Floyd's Acceptances, 7 Wall, 667,676; Marsh vs. Fulton County, 10 Wall., 683.) As to the position that no offer is made in the bills to return the scrip received Done at the city of Washington this seventeenth day of April, one thousand eight hundred and eighty-five, and of the independence of the United States of America the one hundred and ninth. [SEAL.] GROVER CLEVELAND. AN agriculturist at Oakland, California, is making a determined effort to introduce the cultivation of tea in that State. He has over 2,000 tea plants in a very on the east bank of the Missouri river, by thriving condition, and when they arrive the terms of the second article of the at the age of four years he will obtain treaty with the Sioux Indians, concluded Japanese labor and pick and cure. He April 29, 1868, and that consequently does not entertain a doubt of success. being treaty reservations the executive has also a number of camphor trees that was without lawful power to restore them are growing well. He [No. 901.] OF THE REMOVAL OF THE LAND OFFICE Notice is hereby given that the President of the United States, by executive order dated April 11, 1885, has, pursuant to law, directed that the office for the sale of public lands now located at Yakima, in Washington Territory, be removed to North Yakima, in said territory. Further notice of the precise time when this order will be carried into effect will be given by the Register and Receiver of the district by publication. Given under my hand at the city of Washington, this 23d day of April, A. D. 1885. Nos. 154, 422, 565, 689, 1077, 1616, 1628, 1644, 1743, 1754, 1757, 1761, 1812, 1817, 1922, 1956, 2010, 2016, 2088, 2150, 2158, 2168, 2192, 2294, 2304, 2316, 2335, 2344, 2350, 2354, 2380, 2401, 2409, 2431, 2440, 2446, 2447, 2450, 2454, 2456, 2458, 2481, 2492, 2496, 2506, 2510, 2514, 2516, 2527, 2657, 2560, 2565, 2585, 2681, 2694, 2696, 2704, 2726, 2733, 2746, 2748 to 2755 inclusive, 2758 to 2764 inclusive, 2766 to 2769 inclusive, 2771 to 2778 inclusive, 2780 to 2784 inclusive, 2786 to 2800 inclusive, 2802 to 2808 inclusive, 2810 to 2815 inclusive, 2817 to 2841 inclusive, 2844 to 2849 inclusive, 2851, 2852, 2854, 2855, 2856, 2858 to 2870 inclusive, 2872 to 2876 inclusive, 2879 to 2888 inclusive, 2892 to 2904 inclusive, 2906, 2908 to 2915 inclusive. KANSAS. CONCORDIA. Nos. 2901, 9094, 9136, 9840, 10438, 11379, 11459, 11529, 11600, 11622, 11632, 11736, 11739, 11741, 11742, 11750, 11774 to 11793 inclusive, 11795 to 11844 inclusive, 11846 to 11914 inclusive, 11916 to 11921 inclusive, 11924 to 11938 inclusive, 11940 to 11944 inclusive, 11946 to 11954 inclusive, 11956, 11958, 11959, 11960, 11962, 11964, 11966 to 11974 inclusive, 11976, 11977, 11978, 11980 to 11987 inclusive, 11989 to 11995 inclusive, 11997 to 12001 inclusive, 12003 to 12016 inclusive, 12018, 12019, 12020, 12024, 12025, 12026, 12028, 12029, 12030, 12032 to 12040 inclusive, 12042 to 12052 inclusive, 12054, 12055, and 12057. GARDEN CITY. | Alexandria and Fergus Falls Series. Nos. 1811, 2772, 3801, 3982, 4023, 4026, 4040, 4041, 4050, 4052, 4057, 4059, 4091, 4092, 4108, 4121, 4124, 4132, 4157, 4164, 4170, 4171, 4185, 4187, 4188, 4194, 4196, 4206, 4228, 4230, 4234, 4235, 4237, 4241, 4242, 4244, 4246, 4247, 4256 to 4259 inclusive, 4263, 4268, 4269, 4274, 4275, 4276, 4279, 4285, 4286, 4292, 4293. MISSISSIPPI. JACKSON. Nos. 1058, 2619, 2646, 2654, 2656, 2683, 2686, 2687, 2699, 2700 2727 to 2732 inclusive, 2734 to 2746 inclusive, 2748 to 2753 to 2704 inclusive, 2706 to 2718 inclusive, 2721, 2723, 2724, inclusive, 2755, and 2757. MONTANA. MILES CITY. Nos. 1, 4, 5, 8, 10, 14, 49, 50, 51, 52, and 53. LAS CRUCES. La Mesilla and Las Cruces Series, Nos. 120, 123 to 126 inclusive, 129, 141, 142, 148, 149, 152, 153, 157, 161, 162, 163, 166, 170, 173, 179, 180, 181, 183, 184, 185, 190, 191, 192, 194, 196, 197, 198, 201, 202, 203, 205, 207, 208, 218, 226, 234, 235, 237, 238, 239, 268, 270, and 272. OREGON. LE GRANDE. YANKTON, Nos. 2946, 2947, 2951, 2952, 2962, 2963, 2965 to 2968 inclusive, 2980, 2996, 2998, 3008, 3013, 3023, 3027, 3036, 3042, 3043, 3045, 3047, 3051, 3052, 3056, 3067, 3070, 3072, 3076, 3077, 3085, 3087, 3090, 3096, 3097, 3100, 3105, 3106, 3118, 3119, 3122, 3125, 3126, 3141, 3142, 3147, 3160, 3169, 3174, 3175, 3180, 3186, 3192, 3196, 3197, 3200, 3202, 3210, 3212, 3219, 3229, 3232, 3234, 3236, 3238, 3240, 3246, 3248, 3250, 3252, 3261, 3262, 3266, 3269, 3271, 3273, 3274, 3282, 3287, 3288, 3289, 3300, 3302, 3309, 3310, 3311, 3315, 3316, 3321, 3322, 3324, 3327, 3329, 3331, 3333, and 3341. FLORIDA. GAINESVILLE. Nos.1126,1431,1721,1741,2350,2448,2533, 2541, 2600, 2617,2700, 2770, 2774, 2814, 2846, 2903, 3000, 3004, 3044, 3058, 3083, 3177, 3191, 3221, 3286, 3393, 3437, 3471, 3518, 3564, 3599, 3618, 3640, 3662, 3664, 3689, 3809, 3816, 3829, 3870, 3879, 3889, 3905, 3917, 3971, 3979, 3980,4016, 4063,4075,4127,4141, 4162, 4178, 4210,4246, 4271, 4289, 4293, 4296, 4360, 4386, 4452, 4460, 4483, 4490, 4533, 4541, 4562, 4591, 4631, 4674, 4758, 4815, 4888, 4899, 4941, 4962, 4963, 5007, 5019, 5029, 5040, 5070, 5071, 5091, 5143, 5183, 5192, 5210, 5235, 5271, 5287, 5314, 5513, 5612, 5706, 5724, 5827, 5-35, 5856, 5922 to 5929 inclusive, 5931 to 5934 inclusive, 5936 to 5950 inclusive, 5952 to 5971 inclusive, 5973 to 593 inclusive, 5985, 5987 to 6008 inclusive, 6010, 6011, 6013 to 6025 inclusive, 6029, 6031, 6032, 6034, 6035, 6036, 6038 to 6045 inclusive, 6048, 6049, 6052 to 6063 inclusive, 6065 to 6076 inclusive, 6078 to 6088 inclusive, 6091 to 6099 inclusive, 6105, 6106, 6107, 6109 to 6112 inclusive, 6114 to 6117 inclusive, 6119 to 6138 inclusive, 6140 to 6144 inclusive, 6147 Nos. 349, 686, 955, 1036, 1037,1038, 1040 to 1049 inclusive, to 6154 inclusive, 6156, 6157, 6158, 6160, 6161, 6163, 6164, 6165, 1051, 1053, 1054, and 1055. WISCONSIN. Nos. 81, 115, 3906, 4431, 4520, 4554, 4764, 5021, 5168, 5182 to 5205 inclusive, 5207 to 5219 inclusive, 5221, and 5222. CASH PATENTS ISSUED. COPP'S LAND OWNER for this month reports the issuance of patents on the Cash Entries numbered below, which patents have been sent to the below-named land-offices : ARIZONA. Nos. 165, 184, 186, 189, 218, 190, 196 and 200. CALIFORNIA. Nos. 8187, 8243, 8250, 8253, 8257, 8269, 8274, 8281, 8285, 82868 and 8289. DAKOTA. Nos. 2749, 2842, 3669, 3796, 3904, 4016, 4034, 4667, 4785, 4849, 4853, 4856, 4888, 4896, 5262, 5263, 5265, 5299, 5300, 5302, 5310, 5311, 5316, 5317, 5332, 5334, 5336, 5339, 5341, 5343, 5344, 5354, 5356, 5360, 5361, 5366, 5376, 5378, 5380, 5382, 5390, 5394, 5396, 5397, 5398, 5405, 5413, 5415, 5421, 5432, 5464, 5469, 5471, 5479, 5481, 5496, 5498, 5499, 5504, 5511, 5518, 5526, 5529, 5530, 5536, 5542, 5544, 5553, 5559, 5560, 5261, 5563, 5564, 5565, 5569, 5579, 5580, 5583, 5587 5589, 5591, 5592, 5593, 5598, 5599, 5600, 5601, 5602, 5604, 5607, 5608, 5610, 5616 to 5619 inclusive, 5624, 5625, 5626, 5632, 5633, 5635, 5645, 5649, 5651, 5656, 5657 to 5660 inclusive, 5662, 5667, 5671, 5676, 5682, 5683, 5690, 5695, 5696, 5698, 5700, 5701, 5702, 5704, 5705, 5706, (5714, 5715, 5716, 5721, 5723, 5724, 5726, 5728, 5731, 5732, 5736, 5741 5742, 5745, 5749, 5751, 5755, 5757, 5759, 5760, 5761, 5763, 5764, 5768, 5769 to 5775 inclusive, 5777, 5779, 5788, 5789, 5791 to 5794 inclusive, 5803, 5805, 5807, 5812, 5814 to 5817 inclusive, 5820, 5821, 5824, 5827 to 5831 inclusive, 5833, 5837, 5839, 5840, 5841, 5842, 5844 to 5848 inclusive, 5850, 5852, 5855, 5856, 5857, 5859, 5860, 5861, 5862, 5863, 5864, 5866, 5869, 5870, 5872 to 5880 inclusive, 5882, 5885 to 5889 inclusive, 5891, 5892, 5893, 5897 to 5911 inclusive, 5914 to 5917 inclusive, 5922, 5923, 5928, 5931 to 5939 inclusive. 5943, 5944, 5945, 5947, 5952, 5954, 5955, 5957, 5958, 5961, 5963 to 5967 inclusive, 5973, 5974, 5975, 5977, 5980, 5982, 5984, 5985, 5987, 5992, 5994, 5995, 5996, 6003, 6004, 6005, 6006, 6014, 6031, 6035, 6053, 6054, 6066, 6070, 6077, 6084, 6092, 6099, 6103, 6113, 6131, 6142, 6144, 6166, 6184, 6197, 6206, 6207, 6208, 6220, 6237, 6241, 6279, 6330, 6343, 6351, 6168, 6376, 6444, 6666, 6826, 7003, 7029, 7068, 7086, 7147, 7206, 7209, 7262, 7267, 7305, 7337, 7861, 7370, 7402, 7410, 7635, 7639, 7662, 7679, 7698, 7706, 7726,7739, 7760, 7794 and 7795. 7331, 7332, 7334 to 7338 inclusive, 7340, 7342, 7343, 7345, 7346 to 7356 inclusive, 7358, 7359, 7360, 7362 to 7372 inclusive, 7375, 7377 to 7381 inclusive, 7384 to 7391 inclusive, 7393, 7395 to 7398 inclusive, 7400, 7401, 7404, 7406 to 7419 inclusive, 7421 to 7437 inclusive, 7439 to 7461 inclusive, 7463, 7464, 7465, 7468, 7471 to 7487 inclusive, 7490, 7493 to 7513 inclusive, 7520, 7521, 7522, 7524, 7525, 7527, 7530, 7531, 7532, 7534 to 7543 inclusive, 7545, 7546, 7547, 7548, 7549, 7550, 7551, 7552, 7553, 7554, 7555, 7556, 7557, 7558, and 7559. Newnansville Series. Nos. 2617, 3437, nd 4075. Nos. 64, 67. 71. 77, 78, 79, 105, and 107. 1837, 1838, 1839, 1843, 1844, 1845, 1848, 1849, 1860, 1861, 1864, 2498. Nos. 3 to 16 inclusive, 18, 20, 21, 22, 23, 25 to 29 inclu./7428, 7466, 7521, 7543, 7572, 7581, 7597, 7602, 7609, 7618, 7620, 2457. 2460, 2463, 2469, 2470, 2474, 2479, 2486, 4492, 2493 and sive, 31, 34, 35, 36, 38 to 54 inclusive, 56 to 60 inclusive, 62, 63, 65, 67, 68, 69, 70, 72, 73, 74, 76 to 84 inclusive, 86 to 92 inclusive, 94 to 106 inclusive, 109, 110, 111, 113, 114, 115, 116, 118, 119, 121, 122, 123, and 124. Nos. 392, 932, 1009, 1029, 1326, 1575, 1643, 1690, 1863, 1871, 1923, 2013, 2096, 2212, 2249, 2265, 2381, 2472, 2486, 2503, 2575, 2711, 2781, 2920, 2964, 2995, 3067, 3095, 3165, 3253, 3315, 3357, 3375, 3534, 3535, 3651, 3824, 3861, 3886, 3937, 3977, 3985, 3986, 3994, 4025, 4059, 4079, 4101, 4108, 4120, 4153, 4155, 4172, 4216, 4232, 4324, 4330, 4338, 4349, 4369, 4431, 4446, 4463, 4472, 4480, Nos. 500, 620, 662, 670, 687, 688, 690 to 693 inclusive, 695 4498, 4519, 4564, 4649, 4682, 4735, 4737, 4798, 4878, 4904, 5045, to 699 inclusive, 701, 702, 704, 706 to 724 inclusive, 726 to 742 inclusive, 745 to 749 inclusive, 754 to 758 inclusive, 5141, 5326, 5350, 5458, 5469, 5473, 5478, 5495, 5498, 5515, 5516, 760, 762, 764, 766, 767, 769 to 773 inclusive, 776 to 779 inclu5518,5521, 5551, 5579, 5617, 5647, 5652, 5658, 5668, 5670, 5737, sive, 781, 782, 783, 786 to 794 inclusive, 796, 797, 798, 500, 6108, 6110, 6150, 6152, 6162, 6168, 6176, 6199, 6213, 6258, 6341, 5745, 5844, 5893, 5907, 5914, 5929, 5954, 5973, 5990, 6066, 6073, 777. 802 to 806 inclusive, and 808. 6354, 6368, 6371, 6392, 6593, 6394, 6396, 6401, 6410, 6415, 6420, 6425, 6438, 6448, 6452, 6455, 6456, 6463, 6472, 6484, 6485, 6486, 6487, 6492, 6502, 6503, 6508, 6511, 6520, 6526, 6534, 6544, 6557, 6561, 6563, 6569, 6575, 6581, 6589, 6592, 6596, 6601, 6604, 6605, 6609, 6611, 6612, 6614, 6615, 6619, 6620, 6621, 6628, 6630, 6632, 6633, 6635, 6639, 6640, 6641, 6649, 6651, 6652, 6654, 6655, 6658, 6661, 6667, 6673, 6674, 6675, 6677, 6684, 6689, 6690, 6695, 6701, 6703, 6704, 6709, 6710, 6712, 6713, 6714, 6715, 6721, 6725, 6726, 6728, 6729, 6736, 6742, 6743, 6744, 6751, 6753, 6758, 6762, 6770, 6780, 6781, 6785, 6789, 6792, 6794, 6795, 6798, 6799, 6800, 6802, 6803, 6812, 6813, 6814, 6816, 6817 and 6818. MINNESOTA. FERGUS FALLS. Nos. 4295, 4303, 4305,4311, 4313, 4316, 4324 to 4336 inclusive, 4338 to 4350 inclusive, 4352, 4353, 4355, 4356, 4358 to 4364 inclusive, 4366 to 4377 inclusive, 4379, 4381, 4383 to 4386 inclusive, 4390, 4393, 4394, 4395, 4397, 4401, 4404, 4406 to 4610 inclusive, 4412, 4413, 4414, 4416, 4417, 4419, 4420, 4421, 4426, 4427, 4430 to 4433 inclusive, 4435 to 4438 inclusive, 4440, 4 445, 4449, 4451, 4456, 4465, 4468, 4471, 4472, 4476, and 4477. OLYMPIA. Nos. 7658, 7937, 7979, 7982 and 8063. Nos. 20090, 20129, 20139, 20143, 20148, 20168, 20240, 90241, 20242, 20245, 20254, 20256, 20262, 20291, 20294, 20309, 20310, 20320, 20329, 20339, 20340, 20341, 20344, 20346, 20347, 20549 to 20355 inclusive, 20357, 20358, 20359, 20362, 20364, 2668, 20367 and 20370. VOL. XII. COPP'S LAND OWNER. Entered at the Post Office at Washington, D. C., as second-class matter. THIS paper furnishes more valuable law informa neys and real estate dealers, by more homestead, tion for less money, and is read by more land attormine owners, engineers, and superintendents, than pre-emption, and other land claimants, and by more any other publication in the United States. THIS NOTICE MARKED with a blue or red pencil indicates that your subscription expires with this issue, and if you wish the paper continued without interruption, you should remit your renewal subscription at once. Parties renewing their subscriptions will find it advantageous to send $1.00 for their card in the Land Directory one year. WASHINGTON, D. C., MAY 15, 1885. INDEX TO VOLS. 1 TO 9. No. 4. D. V. STEPHENSON, Surveyor General This book is now ready for delivery. at Plattsmouth, Nebraska, and C. H. Table of Cases takes 52 pages; Acts of have resigned. It contains 203 pages, price $2.00. The Gould, Receiver at Miles City, Montana, Congress cited and construed, 10 pages; Circular Instructions, 4 pages; Court Decisions, 3 pages; Homesteads, 7 pages; clerk, leaves his desk with the entire reJ. DEMPSTER SMITH, the retiring chief Laws of Congress, 5 pages; Lodes, Mines, and Placers, 7 pages; Patents, 4 pages; employees of the Land Department. It spect and confidence of the officers and Pre-emptions, 5 pages; Railroads, 4 pages; is to be hoped that the land service will Surveys, 6 pages; Timber Culture, 4 pages; Widow, Wife, and Woman, 2 pages. VALENTINE SCRIP. A few pieces for sale by Curtis & 19 Burdett, 925 F street Washington, D. C. 50 51 not lose his valuable services. WASHINGTON TERRITORY. A printed report of the Governor of this Territory, with large map, is before us. It gives a clear exposition of the climate, soil, and products of this rich but comCalifor-paratively unknown country, with much other valuable information. VALENTINE SCRIP FOR SALE 52 52 53 Thornton vs. 54 Northern Pacific R. R. Co. vs. Lamour-Hastings St. Paul & Sioux City R. R. Co. vs. The United SOLDIERS' ADDITIONALS FOR 89 One for 5% acres, will take anything 54 under 11% acres. 57 One for 14%, will take anything under One for 40 acres, and one for 120 acres. PROMOTIONS. Thomas M. Baldwin, of Pennsylvania, 58 has been promoted in the Division of Accounts, General Land Office, from $1,600 to $1,800, and W. H. Grigsby, of Alabama, from $1,400 to $1,600. 58 69 59 61 Of North Platte, Nebraska, has ordered 63 64 PAGE I I Curtis & Burdett, Washington, D. C.... Capt. John Mullan, San Francisco & Washington. D. H. Talbot, Sioux City, Iowa.. C. W. Holcomb, Washington, D. C..... Ellery C. Ford, Washington, D. C.. C. P. Lincoln. Washington, D. C.... C. C. Clements, Washington, D. C.... H. B. Abbott... J. H. Voorhees. JUDGE WILLIAM WALKER, IV IV III III III Judge Walker impresses the visitor as IV PRACTICE. BUTLER VS. MOHAN. Contest Affidavit-A contest affidavit is in the nature of an information, and the party making the same need not necessarily do so on his own personal knowledge and observation of the facts therein stated, but may base his assertions upon information and belief. Application not Accompanied by Affidavit.-An application not accompanied by an affidavit showing applicant's qualifications to make entry will not be held defective if objection is not made at the proper time. ACTING SECRETARY MULDROW to Commissioner Sparks, April 30, 1885. I have considered the case of Edward J. Butler vs. John P. B. Mohan, involving the N. W. of 22, 114, 32, Redwood Falls, Minnesota. On June 28, 1876, Mohan made timber culture entry 394 of above tract, and on March 24, 1883, Butler filed contest against the same, alleging failure to comply with the requirements of the law after entry; personal service of notice of contest, and of hearing on May 2, 1883, was made. On said last day, on the application of the plaintiff, a continuance was granted until June 2, 1883, at which time testimony was submitted by contestant on which the Register and Receiver held the entry for cancellation. Mohan did not appear on either day of hearing, but appealed from the decision of the Register and Receiver. That decision you reversed March 15, 1884, and dismissed the contest of Butler. On March 24, 1884, the relinquishment of said entry was filed in the local office, and on the same day James P. Mohan made timber culture entry 1456 of the tract. On June 4, 1884, the local officers were in formed by you that the entry of John P. In pursuance of this purpose, the circu- in the matter of cultivation and planting B. Mohan had been canceled upon your lar of December 20, 1882 (9 Copp's L. O., trees in the years 1880, 1881 and 1882," records, and the contest of Butler closed. 198), was issued. It was soon seen, how- whilst at the hearing before the Register Appeal from your decision was filed by ever, that a rigid enforcement of the rule, and Receiver, contestant swore that he first the latter in the local office May 6, 1884, thus laid down in all contests then pend- saw the land in January, 1883. It is inbut not transmitted to you until July 10, ing, would work great hardship and injus-sisted by Mohan that the contest should 1884. It thus appears that your action, tice to contestants who had been, in many be dismissed, because it is thus shown in closing the contest before ascertaining instances, misled by the land officers into that the plaintiff had no personal knowwhether an appeal had been taken, was the careless practice of initiating proceed-ledge of the facts sworn to in said affipremature. The appeal of Butler, taken ings under said act without filing, at the davit, as a basis for contest. in time, nullifies such action and brings time, a proper and in many cases any apthe case before me on the record, to as- plication to make entry. Because of this certain the rights of the parties in inter-seeming harshness, without intending to est, as fully as though said action had not abrogate it, the rule thus established was been taken, and it will be thus considered. relaxed in a number of cases, as for inThe contest was dismissed by you be- stance in that of Bennett vs. Taylor (11 cause the application of Butler to make L. O., 43), where Bennett was allowed the entry of the tract, at the time of filing his status of a legal contestant, though he had contest, was not accompanied by an affi- filed no formal application to make entry, davit showing his qualifications therefor. but only stated his desire to do so. In In this decision you quote and follow the all of this class of cases the record disruling in Scott vs. Liedtke, 2 L. D., 292. closed the fact that the contests therein The third section of the act of June 14, were pending prior to the promulgation of 1878-timber culture law-declares in ef- the decision in the Bundy case. And if fect, that, in case of the failure by an entry- the rule has been relaxed in any other than man, under said act, to comply with its the above described class, it was erronerequirements, his entry shall be forfeited ously done. to a party who is qualified and intends to make entry of the tract in question, either under the homestead or timber-culture laws. As evidence of said qualification and intention, the party seeking to avail himself of these provisions is required to file an application to enter the tract as above, and to give notice to the prior entryman of the fact that claim is made to the same because of his failure to comply with the requirements of the law. Inasmuch as said section practically declares that the failure of the prior entryman to comply with any of the requirements of that act ipso facto makes the tract subject to entry by a new applicant, it follows that the application of the latter to make entry, then and there presented, should be as complete in all its parts as in the case of an ordinary application to make a like entry upon any land subject to the same. Necessarily this is so, because the application then filed is the entry which, if the contest be successful, appropriates the tract from the date it was filed and notice given to the defaulting claim It is true, the new application is not to be recorded until the forfeiture of the old entry is declared, but the right of entry exists from the date of filing the application and giving notice; and when the application is recorded it constitutes the entry, relating back to the date of its presentation. ant. The case under consideration does not come within this indulgent practice; but the contest therein having been initiated March 24, 1883, is within the rule of said decision, and of the circular of December 20, 1882, and therefore entitled to no indulgent consideration. This being so, it follows that if the application of Butler filed with his consent is defective, defective in any of the essentials of a complete application, it is not the application contemplated by law, and fails to give him the status of a legal contestant. It does not appear that his said application was accompanied by an affidavit showing his qualifications to make such entry, and because of the want of such affidavit, it would have been held defective, if the objection had been made at the proper time at the hearing before the Register and Receiver. A contest affidavit is in the nature of an information, and the party making the same need not necessarily do so on his own personal knowledge and observation of the facts therein stated, but may base his assertions upon information and belief. The Register and Receiver having accepted and acted upon the information tendered by issuing notice to the defendant, when service of the latter was made, jurisdiction in the case attached, and the truth or falsity of the charges is the matter to be inquired about and determined at the hearing, and not whether contestant had sufficient knowledge on which to base his allegations. See Houston vs. Coyle, 2 L. D., 58. Were the contention of Mohan, in this respect, to be approved, the ability to contest entries would be limited to but few indeed, and the machinery provided for contesting abandoned, or neglected entries, if not brought to a stand still, would be so clogged as to be almost useless to accomplish the results for which it was authorized and for which its operations are encouraged. As might be supposed from the conduct of the defendant in evading the hearing, or in failing to make a meritorious defense to the contest, the evidence taken before the Register and Receiver shows that he did no more than make a very slight pretext of complying with the law as to planting and cultivating trees, notwithstanding nearly seven years had elapsed since entry and before contest was brought. I therefore think the Register and Receiver were right in holding the entry of Mohan for cancellation, and you erred in reversing their judgment and dismissing Butler's contest. proper affidavit showing that he is qualified so to do. If within that time he makes entry, that of James P. Mohan will be canceled; otherwise it will remain intact. But this course was not pursued by the defendant, who, instead of appearing at that time, though actually and personally served with notice of contest-seen and Mohan's entry having been canceled by talked with by witnesses in relation to the relinquishment pending contest, and a new case on the day of hearing, in close prox- entry made on the tract, you will notify imity to the land office-thought proper Butler that he will be entitled, by virtue to stay away, and take his chances of of his contest, to preferred right of entry thereafter defeating the contest on tech- on the land for thirty days, on filing a nical grounds. The objection being made by him for the first time on appeal comes too late; for having failed to appear and protect his rights at the proper time, he When the decision of Bundy vs. Living- can not afterwards and in this way assert ston (1 L. D., 179) was promulgated, No- them, but the defect, so far as he is convember 14, 1882, it was intended that the cerned, will be treated as though specially loose practice of initiating contests under waived. You, therefore, erred in entersaid act, without complying with the pro-taining the point and dismissing the convisions of the third section thereof, should test thereon. cease; and that thereafter no one should Another specification of error contained be recognized as having the status of a in Mohan's appeal, and not passed upon legal contestant, unless at the time of ini- by you, though not of much force, will be tiating his contest he also filed therewith considered. a proper application to make entry of the tract in controversy. The contest affidavit alleges failure to JAMES M. BOYD. Re-entry-Fees and Commissions.—The circular of December 1, 1883, is modified by exempting all parties who apply to re-enter the same tracts and upon which the payments have previously been made, from making second payments of fees and commissions, and to allow them credit for the former payments. ASSISTANT COMMISSIONER HARRISON to Reg. and Rec., Huron, Dak., April 27, 1885. (L. B. H.) James M. Boyd made homested entry No. 1697, S. N. W. 4, and N. S. W. 4, Sec. 5, T. 114, R. 64, January 10, 1883, during the existence of his pre-emption filing for another tract, and prior to making proof and payment thereon. made by Peterson until within the past miles from the county seat of that county, year. A. C. Widdicombe, the present and the county seat of Cavalier county holder of the land under homestead entry only about five to eighteen miles distant 10,166 T. C. 2373, now surrenders the from said land, and asking if claimants in patent issued on said entry, together with the former county can make proof before By letter "C" of this office, March 18, a quit-claim deed to the United States, and the clerk of the latter county. 1885, the entry was canceled for illegal- requests that the same be canceled, as You are advised that the word "disity, and Mr. Boyd allowed to re-enter the the land in question was in actual occu-trict," used in the Acts of March 3, 1877, same tract, subject to any prior valid ad-pancy, possession, and improvement of and June 9, 1880, of which the former alverse claim, upon proper payment. April one John Sanders. As the grantee of lows final homestead proof, and the latter 1, 1885, you transmitted a homestead affi- Peterson appears to have been a bona fide pre-emption and homestead affidavits of davit and application of entry by Boyd to purchaser, and as the change of entry was claimants to be taken "before the clerk of re-enter the same tract, accompanied by a never perfected as authorized, I see no the county court, or of any court of request for credit for fee and commissions reason why entry 16,890 should not be record of the county and State or district paid on his former entry. reinstated, as nothing appears on the and Territory in which the lands are sitrecords against the tracts, except the uated," refers to the judicial district, and homestead of T. B. Haskins. not to the land district; and where such judicial district is composed of two or more counties, the clerk of any court of record in the district may take the proof of pre-emption and homestead settlers, whose claims embrace lands situated in any other county in the district. The practice of allowing a person making a homestead or timber culture entry credit for fee and commissions paid on a canceled prior entry, was discontinued upon the issuance of the office circular of ("M") December 1, 1883 [Vol. 2 L. D., 660, and Vol. 10 Copp's L. O., 306]. Upon a consideration of said circular, I have decided to modify it by exempting all parties who apply to re-enter the same tracts, and upon which the payments have previously been made from making second payments of fees and commissions, and to allow them credit for the former payments. I have, therefore, in compliance with the request of Widdicombe, canceled said homestead entry No. 10,166, T. C. 2,373, upon the records of this office, together with the patent based upon said entry and the record thereof, and you will note the cancellation of the same upon your records. Plattsburg cash entry 16,890, is this day reinstated, and you will so note upon your records, for which patent will issue in the due course of business. Mr. Widdicombe's application for repayment of fee and commissions will form the subject of a future letter. The word "district" in the Act of June 9, 1880, was construed to mean judicial district in my letter of June 28, 1882, to C. A. M. Spencer. MINES AND MINERALS. In view thereof, I return the application papers of Mr. Boyd, and you are directed to place his entry on record, allowing him credit for fee and commissions paid. Hereafter proceed in like manner with Final Proof.-Duplicate copy of homestead and ber 4, 1884, is hereby amended as follows: similar cases. WILLIAM H. PETERSON. Reinstatement.—An entry having been canceled, and change of entry authorized, but not perfected, a party showing a bona fide title to the land is entitled to have the canceled entry reinstated. INSTRUCTIONS. pre-emption proofs is not required, and charge 1. In entries made prior to the receipt by the Register and Receiver of said cirRe-cular, the survey, if free from objection under the former practice, need not be amended to conform to the provisions of paragraph 2 of said circular. 2. All decisions under said circular in conflict with the foregoing amendment may, to that extent, be recalled. Approved. L. Q. C. LAMAR, Secretary. JOHN R. MAGRUDER. I have been informed by H. R. Pease, esq., Receiver at Watertown, that you are in the habit of requiring settlers to have their pre-emption and final homestead COMMISSIONER MCFARLAND to Register and Re-proofs made in duplicate, and that you ceiver, Boonville, Mo., January 24, 1884. charge and collect the same fees for exIn reply to your letter of the 14th inst., amining and approving the duplicate copy, relative to Plattsburg cash entry No. 16, as are charged on the original proof. This 890, for the W. of N. E., and S. E. of practice is illegal, and must be disconS. W. 1, Sec. 29, T. 65, R. 31, made by Wil- tinued. All the law requires of parties makliam H. Peterson, July 16, 1855, I have to ing final proof, is that it shall be full and The cancellation of a mineral entry for non-comstate that in November, 1855, Peterson correct, and when the entryman has paid applied to change his entry to the S. of at the rate of fifteen cents per one hunN. W., Sec. 20, and S. E. of N. E. 4dred words for writing done by you, or by Sec. 30, 65, 31, and on November 24, 1855, some one in your employ, in pre-emption authority was given to the local officers at and final homestead cases, and fees at the Plattsburg to allow the party to change same rate for examining and approving his entry to the tracts which he had in- testimony in final homestead cases taken tended to enter. The change was never before a judge or clerk of a court, as alperfected, and in the meantime the tracts lowed by the Act of March 3, 1877, it is to which he applied to change were entered all that is required by law, and any other by other parties. and the collection thereof must cease. fees collected for such services are illegal, The tracts embraced in said entry, 16, 890, appearing vacant on your records, they were entered by T. B. Haskins, Aug. 25, 1876, per additional homestead entry 10,166, T. C. 2373, under section 2306, Revised Statutes. W. J. MOONEY. COMMISSIONER SPARKS to W. J. Mooney, Olga, The party, J. Hindman, who now claims title under entry 16,890, through W. H. Peterson, asserts his right to the land, and asks that the entry may be reinstated and I am in receipt of your letter of the patented, as he had no knowledge or in- 18th ultimo, stating that ranges 58 and 59, formation as to the status of the entry in Pembina county, are eighty to ninety pliance with antecedent statutory requirements does not affect the possessory rights of the applicant. Effect of relinquishment of defective entry and repayment of purchase money in such a case. Distinction between mineral and agricultural entries in this respect. COMMISSIONER MCFARLAND to Secretary Kirk wood, July 29, 1881. I have the honor to submit herewith for your action, an account in favor of John R. Magruder for return of purchase money for land erroneously sold to him by the United States, per Santa Fé, New Mexico, mineral entry No. 8, for lot No. 38, known as the Chino Mine claim. It appears from the evidence herewith submitted, that the local land officers declined to receive the money, $105, from said Magruder, on the ground that the publication notice and application bore different dates, and the party was allowed to appeal to this office. Upon appeal, this office directed the local officers to accept |