tion. BLENKNER VS. SLOGGY. as thus laid down. The question as to had ruled, July 29, 1876, (Mary C. Hill, Devoid of Timber.-The question as to whether whether land is devoid of timber, as letter "C" to Register and Receiver, land is devoid of timber should not be deter- within the intent and meaning of the tim- Salina, Kansas,) that "the affidavit must mined by the exact number of trees growing ber culture laws, should not be determined bear a date subsequent to the time the thereon, but rather by ascertaining whether by the exact number of trees growing land is open to entry at the local office;" nature has provided what in time will become an adequate supply for the wants of the thereon, but rather by ascertaining and thereby invalidated Voss' entry; people likely to reside on the tract in ques- whether nature has provided what, in time, whereupon on August 8, 1876, he offered will become an adequate supply for the to file a supplementary application and SECRETARY TELLER to Commissioner McFar- wants of the people likely to reside on affidavit, which the Register and Receiver land, July 18, 1883. that tract; and the circumstances sur- rejected on the ground that the tract was rounding each case of this character already covered by his original entry. should be carefully scrutinized. Said rejection your office affirmed on appeal, and also held for cancellation homestead entry No. 17,786, and, no appeal being taken, it was canceled June 19, 1879. I have considered the case of Herman Blenkner vs. Peter Sloggy, involving timher culture entry No. 603 of the N. W. 4 of Sec. 7, Tp., 137, R. 47, Crookston, Minnesota, on appeal by Sloggy from your decision of July 5, 1882, holding said entry for cancellation. The allegation of the contestant is "that there is a tract of timber on the said section of land, to wit: about eight acres of natural growth on said section; that said Sloggy has planted on said land about eight acres of poplar slips; that no other timber is planted by said Sloggy to fill the requirements of the law, on said tract." I am of the opinion that such a tract of land as this was properly subject to entry under the timber culture laws, and your action holding the entry for cancellation is therefore reversed. NEWTON VS. LAUPHER. SECRETARY TELLER to Commissioner McFarland, July 30, 1883. I have considered the case of Velma O. Newton vs. David Laupher, involving timber culture entry No. 2277. The evidence shows that the section in question is about fifteen miles from timNo evidence has been offered by the bered land; that there are growing over contestant, in support of the allegation some five acres of it a number of trees, that claimant had failed to comply with five inches or more in diameter, variously the requirements of the law in the matter estimated at from one hundred and of planting; so the only question for de-seventy-three (excluding willows) to three termination is, whether the land in contro- hundred and twenty-three, one-third or versy comes properly within that class of more of which are along a creek, and most lands defined as "devoid of timber." of the remainder in gulches, and requiring Although it does not appear from the the protection of fire-guards, three-fourths record that the contest was instituted of which are scrub timber or growunder the provisions of Section three of ing in clusters from old stumps and roots the act of June 14, 1878, yet, on the infor- left by fire or axe, and the whole of which mation of the contestant, a question has would perhaps cover a quarter of an acre been raised between the government and of ordinary timbered " land, and would the claimant which should be settled. From the preponderance of the evidence, it would appear that there were on this section about five hundred trees of natural growth, varying in diameter from six inches to two feet or more, and consisting of ash, oak, elm and some underbrush; that this growth of timber is confined to a tract from five to eight acres in extent, situated in a bend of South Buffalo Creek, in the extreme corner of the southwest quarter, and partially, if not wholly, subject to overflow; and that the remainder of the section, including the part entered by Sloggy, is prairie. The general character of the surrounding country, outside of this section, should not be taken into consideration; but it is eminently proper that the situation of this natural growth of timber, and its relation to the section, should be considered, as well as the actual amount and character of the timber itself. It was held by your predecessor, and I think properly, in Osmundson vs. Norby (2 Copp, 645), that where the growth of timber is confined to fixed limits, and is inadequate to the demands of the people that usually reside upon one section, with no prospect that the timber will spread to meet said demands, such tract is subject to entry under the timber culture laws; and this case seems to fall within the rule amount to ten or fifteen cords if cut. [In view of decision in Blenkner vs. Sloggy, the timber culture entry is sustained.-EDITOR.] BENDER VS. Voss. Homestead Application-Vacant Land.—Timber I have considered the case of Jeremiah On the day of said cancellation, one Jacob Deffner made timber culture entry No. 2,618 for said tract, and his relinquishment was filed July 23, 1880, on which day Jeremiah C. Bender, the appellant, filed timber culture entry No. 2877, which is now of record at the local office. On April 9, 1881, Voss asked "that a hearing may be ordered to determine his rights and equities to said tract, and that said Bender's timber culture entry thereon be canceled, and that this affiant's homestead entry be reinstated." On hearing, the Register and Receiver decided adversely to Voss, and on appeal your office decided, July 25, 1882, in his favor, from which Bender now appeals. I concur in your decision for the reasons about to be stated-a number of the points raised during the consideration of the case below remaining undiscussed because they are not necessary, in my judgment, to its adjudication. In the entry of Jeremiah C. Bender there are several defects which might perhaps be cured, but the following defect is incurable, namely: That the entry violated a decision of this department, (Shadduck vs. Horner, COPP'S LAND OWNER, October, 1879, p. 113,) that timber culture entries "should be made upon vacant, unimproved land, not upon cultivated land covered by the valuable improvements of another, and in the possession of another,"-the record showing that the tract in question was then in the possession and occupancy of Voss, and that it had been cultivated and improved annually for the preceding four years. You are therefore directed to cancel said entry. The original homestead entry of Voss is thus restored to its status on August 8, 1876, when he offered for filing his supplementary affidavit and application. The The material facts are as follows: On Register and Receiver should have reNovember 4, 1873, one Frederick Leibrandt ceived said papers in lieu of, and as curing made timber culture entry No. 158 on said the defects in those filed August 5, 1876, tract, which he relinquished May 9, 1876, according to the decision of this departand which was canceled at the local office ment June 11, 1875, (Flanagan vs. MulliAugust 5, 1876. On the day of said can- gan, Wichita office, unreported,) and cellation, Frederick Voss, the appellee, December 22, 1877, (Hiram Campbell, filed homestead entry No. 17,786, covering supra.) Voss' rights were not however said tract, the application being dated, affected by the rejection of the suppleand the affidavit executed July 27, 1876, mentary papers (Duffy vs. N. P. R. R. Co., the Register and Receiver accepting them COPP's L. O., July, 1875, p. 51,) the offer under a custom then obtaining at the local to file which made his original entry valid. offices (Circular, COPP'S LAND OWNER, February, 1878, p. 167.) But your office You are accordingly directed to reinstate Voss' entry, COMMISSIONER MCFARLAND to H. M. Gregg, Lead City, Dak., July 18, 1883. (J. S. P.) It has been charged that the company you represent prosecute their operations of timber cutting with no apparent limit, having constructed the railroad known as the Black Hills and Fort Pierre, for the purpose of denuding of timber remote localities, which portions of country in some instances contain mines as valuable as those you are working. It has been stated to the Department that there are large deposits of coal in the vicinity of your mines that could be utilized for fuel purposes, and thus, in a great measure, render it unnecessary to cut and use so great a quantity of timber as is now denuded in the working of your mines. If the statements relative to the coal deposits are true, this Office would feel called upon to interfere, and require that no further use should be made of the public timber as an article of fuel by your company. PRE-EMPTIONS. INSTRUCTIONS. Two Land Districts.-How a pre-emptor should perfect title when his land lies in two dis tricts. COMMISSIONER WILLIAMSON to Reg. and Rec., Le Grand, Oregon, July 9, 1880. A [pre-emption] party who desires to perfect title to a tract of land lying in two districts, should file a D. S., and make proof and affidavit in each office for the whole tract claimed, but pay for the portion only found within the jurisdiction of each. The regular fees for filing should be paid in each office. A certificate and receipt should issue from each office for the tract lying within the limits of that district. The fact that the entry is made in two offices, with a description of the entire tract, should be endorsed on the certificate from each office. were surveyed in November, 1879, and the jointly with Russell, by virtue of an agree- O'Claire filed declaratory statement No. Rondeau filed declaratory statement 1 Hearing was had April 11, 1881, whereas O'Claire and Letellier appeared, but no appearance was entered either by or in behalf of Rondeau. As there is no evidence, however, that he was served with notice of the contest, I shall dismiss the case, as to him, without prejudice. It appears from the evidence that while both O'Claire and Letellier settled upon the land before survey, the latter was re Russell went upon the land a few days before O'Claire, commenced to improve the same, and resided there some time subsequently to the date of the official survey and O'Claire's filing. Although O'Claire resided upon and assisted in the improvement of the claim, Russell seems to have controlled its management. Indeed, their own testimony discloses the existence of a partnership between them in the premises until December, 1880, or upwards of a year after said survey; that as Russell was disqualified (by reason of a former filing), it was agreed between them that O'Claire should file for the claim, and after acquiring title from the United States he would convey one-half of the same to him in consideration of his work and labor upon and aid in the improveshared the benefits (a moiety each) of a homestead claim situate in the Marquette land district, Michigan, and a pre-emption claim in Lincoln county, Dakota, that Russell had acquired. siding upon his claim, and had had a sur-ment of the tract, and because they had Such survey included the tract in question (the S. W. of the S. E. of Sec. 27,) the western corners whereof were marked by mounds or stakes, but Letellier did Thus it appears that O'Claire did not not make nor attempt to make any im- settle in good faith to appropriate the provements upon the tract, although he land to his own exclusive use, but that claimed the right of possession, and when, he made an agreement whereby the title in the spring of 1879, he found one An- which he might acquire from the United toine Russell plowing a portion of the States would have inured in part to Section 2262, Revised same adjacent to a strip he had been plow- some one else. ing on that part of his claim situate in sec- Statutes, and Myers vs. Croft (13 Wall., that that was a portion of his (Letellier's) tion 26, he protested, that Russell knew 291). In the light of the foregoing statement claim, and forbade his trespassing thereon. of facts, it is manifest that this case falls Although Letellier alleges settlement within the category of cases expressly July 20, 1877, he does not appear to have prohibited by the statute. Although the resided upon his claim until July, 1878, evidence touching many material facts is having purchased the same together with indefinite, uncertain, contradictory and certain improvements thereon, to wit, a even incoherent, I think it unquestionably house, stable, well," and little garden in preponderates in favor of such an agreefront of house," from a former occupant ment. named Peter A bair, (but commonly called I am aware that it was held by this De"French Pete,") who was the sole occupant partment in the case of Larson vs. Weisup to that time. Letellier did not know becker (9 Copp, 60), that a mortgage whether the Frenchman's claim embraced given by a pre-emptor upon his claim was the forty acre tract or not, "but his not an alienation of the fee, nor such an chance was good, for he was the only one agreement as was prohibited by the statthere at the time"-so he asserts. Mc-ute; and that in order to defeat his entry Intyre, one of Letellier's witnesses, testi-" a contract by force of which title to the fied (and it is uncontroverted) that he land must vest in some other person than surveyed his claim in January and Febru- himself; and it must appear that such ary, 1879, marking the boundaries by was his intention at the time of making placing mounds "at the corner of every forty, and the principal corners by four stakes;" that Letellier was living there at that time, and that the subsequent official survey conformed to his. Barring the abstract proposition that, On the other hand O'Claire alleges that" in cases of settlement upon unsurveyed he had eight or nine acres of breaking and lands, not priority of claim, but actual some fencing upon the tract in the year possession and improvement must gov1879, and has since had possession of and ern," I concur with you in the opinion raised crops upon the same. Such posses- that the material fact in the case discovThe subdivisional lines of the township'sion, however, was unquestionably held ered by the evidence is, that O'Claire did O'CLAIRE Vs. RONDEAU ET AL. Settlement Exclusive Use- Agreement.-The testimony shows that O'Claire did not make a bona fide settlement prior to his filing, and that he has not improved the land for his own exclusive use. SECRETARY TELLER to Commissioner McFarland, July 7, 1883. I have considered the case of Robert (alias Herbert) O'Claire vs. Charles Rondeau and Alphonse Letellier, involving as between O'Claire and Rondeau the N. of the S. E., the S. W. 4 of the S. E. 1, and the N. E. of the S. W. of Sec. 27, and as among all the parties the S. W. of the S. E. of Sec. 27, Tp. 7 N., R. 3 E., B. H. M., Deadwood district, Dakota Territory, on appeal by O'Claire from your decision of April 10, 1882, in favor of Letellier. it." It should be observed, however, that the facts in the case cited are different from those in the premises. VAN LANINGHAM VS. VAN ETTEN. Vested Right-Hearing - Fraudulent Proof.Where a party has, through fraudulent proof, been permitted to make pre-emption entry, he cannot oppose a hearing on the ground of vested rights and res adjudicata. SECRETARY TELLER to Commissioner McFarland, July 5, 1883. I have considered the case of Charles W. Van Laningham vs. David Van Etten, involving lands in the Bloomington, Nebraska, land district, transmitted with your letter of September 27, 1882, under Practice Rule 83. not make a bona fide settlement upon the these allegations, which was held in July partment, but instead he applied for a new premises prior to his filing, nor has he (to October) following. Both parties were hearing that he might submit testimony improved such land with the intention of present. Van Laningham introduced wit- which he neglected to submit at the forappropriating the same "to his own ex-nesses who were cross-examined by Van mer hearing, alleging also discovery of clusive use,' as contemplated by the Etten; but the latter submitted no testi- new evidence in that he had been advised, statute. mony, claiming only in his argument filed since the hearing, that it would not be Your decision is accordingly affirmed. therein, that the case was res judicata by safe for him to go upon the land. This the former decision in his favor, and that proffer was not supported by the oath of he thereby acquired a vested right in the the proposed witness, and even if true land, which, with his subsequent acts or shows danger subsequent to the hearing. laches, could not be inquired into by your only without excusing his prior absence office. You correctly held this point not of several years from the land. A new well taken, because the former decision, trial at law would not, in my opinion, be although it involved the same land, was in granted for such reason, and the same rule a case between different parties (except as of practice prevails in this Department. to Van Etten), and because, also, Van You denied his application for a re-hearLaningham's allegations had not been be- ing March 14, 1882, but allowed him to fore investigated, but that the present appeal from your decision of September case must be determined upon its merits, 19th, stating therein that the time limited as might appear from the testimony. for filing the appeal would expire May 5th Upon the question of Van Etten's vested following. He did not file his appeal unright, the decision of this Department in til May 8th. Van Laningham moved to Your decisions of September 19, 1881, the case of Rosanna Kennedy, April 19, dismiss it for this laches, which you susand March 14, 1882, with the files in the 1881-to which you refer is pertinent. tained August 30th following, but suscase show that Van Etten filed declaratory In that case it was held under the rulings pended final action thereon for twenty statement for the land in question Decem- in Frisbie vs. Whitney (9 Wall., 187). days, under Rule 85, to enable Van Etten ber 10, alleging settlement December 5, The Yosemite Valley case (15 Ib., 77), to apply for a certification of the case to 1870, and that one Knight made home- and Sheply vs. Cowan (1 Otto, 330), that this Department under Rule 83. Such stead entry for the same land June 10, a person filing a pre-emption declaratory certification was ordered by the Acting 1871. After a hearing as to the respect- statement does not acquire a vested right Secretary September 22d. ive rights of the parties in September, in the land until all the acts prescribed for I think you properly dismissed Van 1871, you rejected the claim of Van Etten the acquisition of title, including the price Etten's appeal. By his refusal to intro(March 21, 1874), and also the claim of C. of the land, have been complied with, and duce testimony at the last hearing he J. Van Laningham, Probate Judge, under that not until then is he entitled to a cer- waived his right in that respect and contownsite declaratory statement No. 314, tificate of entry, all his prior acts being inci-sented that the case be determined upon and allowed the entry of Knight to remain dental and preliminary thereto; and that that submitted by Van Laningham. This intact. Van Etten subsequently applied if he abandons the land or fails to comply testimony clearly shows Van Etten's failfor a rehearing of the case, which was with the requirements of the law, he loses ure to comply with the requirements of granted in October, 1875, and held in even his inceptive right, without acquisi- the law, both because his filing was not April following; and upon the evidence tion of a vested right which would entitle made for his exclusive use and benefit, adduced you reversed (April 9, 1879) your him to a certificate of entry and to patent. and because he abandoned the land, withformer decision, and awarded the land to The testimony at this hearing shows out residence, cultivation or improvement Van Etten, subject to his future compli- that Van Etten originally filed upon the thereof, for nearly five years prior to Van ance with the law to the date of his entry, land in behalf of others who intended (but Laningham's entry; so that even were the and held the claims of C. J. Van Laning- failed) to locate a town on the land, and case to be considered on its merits on apham and Knight for cancellation. This that in payment for his services he was to peal from your decision of September 19, decision, for want of appeal, was made have a certain number of shares therein; 1881, no other result than cancellation of final, July 21, 1879. August 13, 1879, that he erected a log house and stable, and his filing could follow. Charles W. Van Laningham-the present broke a few acres; that he resided on the plaintiff, nephew of the former party- land at intervals up to and during 1873, but made homestead entry for the land, and on that he left it, with his family, in the fall of January 10, 1880, Van Etten made his final 1874; and that since February, 1875, he has proof under his pre-emption filing, which resided at Omaha, engaged in the practice the local officers transmitted to you, with of law and divers other pursuits, without certain supplementary proof in support any residence or cultivation or improvethereof, for instructions, and which you ment of the tract, so that when Van Lanreturned to them, ordering allowance of ingham made his entry in August, 1879, his entry. In February following-Van the house was roofless and without door, Etten not having made entry-Van Lan- window or floor: that the stable had fallen ingham applied for a hearing to determine down and the broken acres had gone to the right between himself and Van Etten, weeds and grass. Van Etten's argument alleging that at the date of his homestead claims that his non-residence on the land entry the land was wholly abandoned, ex- was by reason of threats of violence cept a small portion which Knight had against him, rendering his residence there continued to cultivate; that the proofs personally dangerous; but this claim is upon which Van Etten's entry was al- not supported by the testimony, and even lowed were false and fraudulent; that he if there were such threats they were long then did, and had for several years, re- prior to Van Laningham's entry, and he sided at Omaha, more than one hundred was not a party thereto. Your decision miles from the land, without cultivation, of September 19, 1881, in view of the facts, improvement or residênce on the tract; held his declaratory statement for canceland that his filing was for speculative pur- lation. His proper remedy from this adposes only. You ordered a hearing on verse decision was by appeal to this De I therefore return without action the papers transmitted with your letter of September 27, 1882, for appropriate disposition under your decisions. GARDNER Vs. SNOWDEN. Misleading Advice-Tenant Railroad Right of Way--The misleading advice of district officers should not prejudice a claimant's rights. The tenant of a right of way railroad occupying a house within the 100 feet of right of way cannot base a pre-emption or homestead claim upon such occupancy. SECRETARY TELLER to Commissioner McFarland, June 30, 1883. I have further examined the case of James Gardner vs. Adam D. Snowden, in connection with your report of 6th November last, the land in controversy being the W. of S. W. 4 of Sec. 14, and the S. E. of N. E. and N. E. of S. E. of 15, 23 S., 43 W., Pueblo district, Colorado. By Department decision of 11th August, 1882, it was found that Snowden was the first settler; but failing to put his claim of record in due time, he had been antici- I am of the opinion that Gardner should not be prejudiced by the misleading advice of the district officers, and his heirs, he having since deceased, may complete his entry under Section 2269 of the Revised Statutes. But, independent of this point, I am of the opinion, if the whole question were before me on the merits of the respective claims, that the right of Gardner is superior to that of Snowden, and your decision of November 5, 1881, and that of this Department of August 11, 1882, were erroneous, and should be recalled. Snowden settled in 1873 as a tenant and employé of the Pueblo and Arkansas Valley Railroad Company, and continued such relation down to 1876, when the company obtained the approval of its right of way under the act of March 3, 1875 (18 Stat., 482), and still continues such relation, living in a house belonging to the company, and his small improvements being within the one hundred feet granted for right of way. It is true, he was by express permission of the company allowed, in 1878, to set a small tenement within the same right of way, and abutting upon the shanty theretofore occupied by him as a tenant, which he has since occupied in connection with the original dwelling. the ground on which the new building cobson, he had already exhausted his pre- THOMPSON VS. JACOBSON. Second Filing.-A party who puts up a board with he lived for a short time. Relinquishment.-A party who, after filing a ACTING-SECRETARY JOSLYN to Commissioner I have considered the case of Ole Jacobson filed declaratory statement April 20, 1880, alleging settlement July 17, 1879. She relinquished the tract May 14th following, and made homestead entry for it on the 17th. Thompson filed declaratory statement April 29th, alleging settlement April 27, 1880, and on May 1st following, purchased from Jacobson whatever interest she had in the land. Jacobson's relinquishment was a waiver of her claim under her filing of April 20th, and thereupon Thompson's settlement and filing took effect, free from any adverse claim; and she acquired no right under her homestead entry, because at the But this could only invest him with a date thereof Thompson had a valid filing further tenancy at will with respect to upon the tract-unless, as claimed by Ja DESERT LANDS. BABCOCK VS. WATSON ET AL. Definition-Lands that one year with another for a series of years will not, without irrigation, make a fair return to the ordinarily skilful and industrious husbandman for the seed and toil expended in endeavoring to secure a crop, are desert lands within the law. Crop. This term means such an agricultural production as would be a fair reward for the expense of producing it. ACTING SEC'Y JOSLYN to Commissioner McFarland, August 7, 1883. I have examined the case of Chester Babcock et al. vs. David Watson, Samuel N. Watson, and George Thompson, involving the validity of the following desert-land entries, to wit: [Here follows a description of the tracts entered.-ED.] * *Susanville, California, on appeal from your decision of January 13, 1881, maintaining the desert character of said lands. These lands are situated in Lassen county, State aforesaid. The entries are contested upon the ground that the lands embraced therein are not desert in char The testimony submitted is voluminous and conflicting, and in some respects difficult to reconcile. acter, and no other question is presented for the seed and toil expended in endeav- from season to season. Many droughts by the case. oring to obain a crop, the land may justly will occur; many seasons in a long series be regarded as desert, within the intent of will be fruitless; and it may be doubted the statute. The crop may be an inferior whether on the whole agriculture will prove one, but the land should return a fair com- remunerative." (Ib., page 3.) pensation for the labor and money ex- Even with this amount of rain, much pended upon the crop. If such a return depends upon whether the rainfall is can not be had, the lands would, after trial evenly distributed. If it is unevenly disor without, remain unoccupied and desert. tributed, so that a rainy season is proThose lands that will not pay for cultiva- duced, the question whether agriculture tion or use without irrigation are within will be successful without irrigation then the scope of the act. The expression depends upon the time of the "rainy seasome agricultural crop" does not refer son," and the amount of rainfall during solely to the amount of the crop: it also that season. (Ib., page 2.) refers to kind. It may be grass, it may be wheat or barley, or some other crop to which the country and climate in the region of the land is generally adapted. It it will produce some crop, of a kind and an amount sufficient to make the cultivation reasonably remunerative, it is not desert. After the taking of testimony had closed, and at the time of filing counsel's brief for contestant, packages of grass and grain were presented at the local office, accompanied by affidavits alleging that such grass and grain grew upon the land in controversy. Such testimony was not considered at the local office, but was transmitted with the record. The opposite party had no opportunity for cross-examination, or for putting in rebutting proofs; and objection being made to receiving the testimony, it can not properly be considered. I have, however, considered it in connection with the contestant's suggestion that a further hearing should be ordered in the case. 66 The tracts are situated in a section of Force must be given to the term "crop country largely composed of desert lands. used in the act. It has a definite meanThe proofs show that the lands in con- ing; and in the sense in which it is used, troversy are mostly sage brush lands. The it means such an agricultural production testimony is made up very largely of the as would be a fair reward for the expense opinions of the witnesses as to whether of producing it. the tracts in controversy will "without The government grants these desert irrigation produce some agricultural crop." lands at the usual price, $1.25 per acre. These opinions are based upon an exami- It grants them in amounts larger than nation of the soil in respect to its compo- under the pre-emption and homestead sition and moisture, and observation and laws, because the lesser amount would not experience as to raising crops upon lands justify the outlay of capital necessary to of similar character. This has led to con- bring water to them. The soil of these siderable discussion as to the amount of lands is presumed to be good, from the the "agricultural crop," which within the price placed upon them by the governmeaning of the statute the land was cap-ment. Such a soil might in some seasons able of producing "without irrigation," in produce even a fair crop without irrigaorder to save it from being classed as tion, but in most seasons would produce desert land. a growth that, considered as a crop, would afford no adequate compensation for the expense bestowed upon it. Section second of the desert-land act provides, "That all lands, exclusive of timber and mineral lands, which will not without irrigation produce some agricultural crop, shall be deemed desert lands within the meaning of this act." Reference is made by contestants' counsel to my decision of July 3, 1882, in the case of Wood vs. Myer, in which it was said that "if any agricultural crop will grow thereon, although of an inferior quality, it is not subject to entry as desert land. And from this it is argued that "It is not a question of quantity or of quality, but of capability to produce at all." Neither the statute nor the decision cited are susceptible of so narrow a construction. When the testimony shows, as in this case, that the class of land is such that without irrigation it fails year after year to return even the seed, and the growth of grain sown is so poor as to be cut for hay, the land may properly be regarded as desert within the statute. This testimony in the case is corroborated by the physical character of the country. In 1875 (before the passage of the present and more general act), Congress passed a special act, relating only to Lassen county, providing for the sale of desert lands in that county (18 Stat., 479) Lassen county lies within the section of country designated by Powell as the "arid region." "In all this region the mean annual rainfall is insufficient for agriculture." (Powell's Lands in the Arid Region, page 5.) It is undoubtedly true, as claimed, that a large part of the agricultural lands situated in the States and Territories named in the act would be greatly improved, and more abundant crops obtained by means As near as I am able to ascertain from of irrigation; but without irrigation, such an examination of the tables and charts lands are not therefore desert. It is not accompanying Powell's report, the mean necessary, however, that the lands without annual rainfall in that section does not exirrigation should be so sterile and barren ceed twenty inches. "The limit of sucthat they will not "produce at all." If cessful agriculture without irrigation has the lands, one year with another for a been set at twenty inches; that the extent series of years, will not without irrigation of the arid region should by no means be make a fair return to the careful, ordinar- exaggerated, but at twenty inches, agriily skilful, and industrious husbandman 'culture will not be uniformly successful The good faith of these claimants is shown by the large amount expended by them in building a dam, and constructing ditches for the purpose of irrigating the lands. One of such ditches is six miles in length, and the amount expended by one of the claimants is $1,500, and considerable sums by the others. I am satisfied from the testimony that the lands are desert in character within the meaning of the act under a fair interpretation, and that the lands can not be successfully culti vated without irrigation. The cases have been long pending, and the controversy in relation to them should be ended; and I must decline to allow any further hearing therein. The testimony seems to have been carefully considered by the Register and Receiver, and by your office, and the same result was reached in both cases as to the desert character of these lands. I concur in the conclusion thus reached, and affirm your decision. PERKINS RUSSELL. Repayment.-Where a desert land entryman, after the expiration of three years from entry, applies for repayment of purchase money on the ground of inability to secure water, such application will be refused. SECRETARY TELLER to Commissioner McFarland, July 14, 1883. I have considered the appeal of Perkins Russell from your decision of November 12, 1881, rejecting his application for repayment of the 1st installment ($160) of the purchase-money on desert land application No. 3 for Section 22, Tp. 2 S., R. 5 E., Bozeman district, Montana. Russell filed his declaration of intention to reclaim the premises October 5, 1877, paying twenty-five cents per acre, pursuant to the provisions of the 1st section of the act of March 3, 1877, (19 Stat., 377,) known as the Desert Land Act. September 13, 1880, he made the application in question. Subsequently, October 27th ensuing, he filed his own and another person's affidavit in support of his application. He alleges (inter alia) "that the said tract can not be reclaimed for cultivation for the reasons: "1st. That he has not been able to secure the amount of water necessary to reclaim said land, as by the desert land law required." Upon your receipt of the Register's and Receiver's letter of October 28, 1880, |