the relinquishment, and the date of canceling entry should be received as the first legal application("). There is no preference right of entry by reason of settlement or of breaking a portion of the land prior to filing of township plat in the local land office("). An applicant under the timber culture law is not required to present his application in person, and if he has recourse to the mail for the purpose of presenting to the local officers the instrument of his intention, he is entitled to the same consideration as if personally present(*). Where timber culture applications are simultaneous the privilege of entry should be put up at auction(d). An excess above 160 acres should be paid for in cash(©). 160 acres may be embraced in a timber culture entry, notwithstanding the section in question is fractional and contains only 342 acres(). Only one timber culture entry can be allowed in a section which embraces 862 acres(§). A successful contestant has thirty days to make entry. In the meantime, no one can enter other land in the same section under the timber culture law(1). A timber culture entry by another party may be allowed within the thirty days granted contestant within which to enter subject to the preference right of contestant(1). A timber culture entry of arid land without means of irrigating it indicates bad faith, especially if the law is not complied with in respect to otherwise preparing the land for planting(3) A filing should not be allowed where settlement is alleged subsequent to date of a timber culture entry covering the same land(*). A contestant's entry dates from the time it was fully perfected, and not from date of initiating contest('). A party who appears to amend his timber culture entry cannot be allowed to embrace a tract entered by another timber culture claimant who has no notice of the prior party's intention to claim the land. The first party may be allowed to take some other tract, or have the money paid as fees and commissions refunded("). Breaking and Cultivation. A season of drought cannot excuse the breaking required by the timber culture laws("). In a timber culture entry there is no restriction when the work must be done, provided it is done within the required time(°). Where an agent fails to do the breaking required within the statutory period, the laches will be cured if the entryman procures breaking before contest(P). It is The object to be attained during the first year by a timber culture claimant, is a thorough overturning of the soil, not in spots, but continuonsly throughout the prescribed area. immaterial whether this object be accomplished by plowing or otherwise(9). If eighteen months have elapsed from date of entry, it is not sufficient for a contestant to allege non-compliance with the law during the first year, but it must he alleged that the proper amount of breaking was not done the first year, nor up to the time the affidavit was executed('). Timber trees include every kind valuable for timber or domestic purposes(). (a) Sim vs. McGrew, Land Owner, Vol. 10, p. 299. (1) Thomas A. Cheshire, Land Owner, Vol. 8, p. 195. 55. (1) Shanley vs. Moran, Lund Owner, Vol. 10, p. 93. () M. C. George, Land Owner, Vol. 8, p. 185. () Rowe vs. Beller, Land Owner, Vol. 10, p, 380. (k) Tinney vs. McDonald, Land Owner, Vol. 11, p. 23. Tasmanian gum tree may be planted for timber culture(*), Putting land to crop is not required under timber culture laws. The ground may be harrowed or otherwise properly prepared (b). Mulching will be allowed in timber culture entries("). Cultivation by hoeing and permitting a growth of grass or weeds around young trees, when it will insure their protection and growth better than the customary cultivation by plowing, etc., is deemed a compliance with the timber-culture law() The preparation of the land and planting of trees are acts of cultivation, and the time actually so employed should be computed as part of the eight years required in timber culture If at the expiration of eight years from date of entry the timber growing upon a claim is not in a fit condition to meet the requirements of the law, the claimant may be allowed five years additional time in order to attain the required results, as in this case, notwithstanding the party had 22,600 trees upon his claim (©). A timber culture entry in which the claimant fails to plant during the third year is forfeited('). Final Proof. A father, as heir, can complete the timber culture entry of a deceased son(8). Contest and Relinquishment. Practice rule I allows the initiation of contests against alleged abandoned or forfeited homestead or timber culture entries by any person, whether in interest or not, but in all other cases (including pre-emptions) only by a party in interest. In view of the irregular hearing in this case the contestant acquired no rights and the timber culture entry after relinquishment of a pre-emption claim by the contestee is allowed to stand("). The affidavit of contest must be made in timber culture cases after the year has expired. The difference of one day is material(1). Where a qualified party desires to make both a homestead and a timber culture entry, he may commence contest against two timber culture entries(). A contest affidavit against a timber culture entry is insufficient if it does not allege that the failure complained of exists at the present time(). The charges in affidavit of contest against a timber culture entry must be specific as to quantity (1). H. entered in 1876, but claimed the benefits of the act of 1878. This act enlarged the provisions of the act of 1874, but is not inconsistent therewith in respect to affidavit required, to the effect that the entry is made for the cultivation of timber, for his own exclusive use and benefit, in good faith for himself and not for the purpose of speculation. The evidence shows the law not to have been complied with in this respect, as Husted had bargained and sold or agreed to sell the entire tract to another, who was to cultivate the land for a time for a part of the proceeds of the agricultural crop. Held, That the entry should be canceled, as not having been made with a view to appropriate the land to his own use, but for speculative purposes(m). Acts done or omissions by the timber culture claimant since date of initiating contest have no bearing on contestant's rights("). Where the first contest against a timber culture entry is not supported by law, another con (*) W. A. Sanders, Land Owner, Vol. 8, p. 194. (e) Benjamin F. Lake, Land Owner, Vol. 11, p. 75. 27. (8) Cowan vs. Woodside, Land Owner, Vol. 9, p. 37. test by another party may be initiated against the same entry notwithstanding the first contest is still pending("). The contestant in a timber culture case must show himself qualified to make entry of the tract-except where it is claimed that the entry was illegal at inception. The contestant cannot shorten the thirty days period of reservation by withdrawing or relinquishing his preference right(). As a condition precedent to a second contest against the same timber culture entry, the former case must have been finally adjudicated, including appeal (*). Offering to sell one's interest in a timber culture entry is insufficient ground for contest(). The act of June 14, 1878, restricts a contest against a prior timber culture entry to one who seeks to enter under the timber culture or homestead law, and in the absence of any such application there is no right of contest(). Where the contestant dies, as his right is a personal one, it leaves the case between the government and the entryman().. An alien may declare his intention to become a citizen of the United States, make a timber culture entry, and be absent from the United States thereafter for two years or more, without forfeiting his entry, provided he returns and the timber culture law is complied with ). A qualified party may make a relinquishment of his timber culture claim and re-enter as homestead. A party cannot make relinquishment of one timber culture claim and make another timber culture entry(h). The purchaser of the relinquishment of a public land entry gains no rights against the United States from the mere fact of such purchase, and the question of duplicate sales or of the payment or non-payment of the purchase money, has no legal bearing in the determination of a case(). (a) Bivins vs. Shelly, Land Owner, Vol. 10, p. 212. () Instructions, Land Owner, Vol. 10, p. 42. (c) Schneider vs. Bradley, Land Owner, Vol. 9, p. 64. (d) J. W. Farmer, Land Owner, Vol. 8, p. 93. (f) Morgan vs. Doyle, Land Owner, Vol. 11, p. 131. (8) McMurtrie vs. Wright, Land Owner, Vol. II, p. 25. (1) W. A. Lewis, Land Owner, Vol. 8, p. 122. () Bundy vs. Livingston, Land Owner, Vol. 9, p. (1) Andrew Korbe, Land Owner, Vol. 10, p. 124. 173. CHAPTER VI. MISCELLANEOUS. I. Townsites. The President is authorized to reserve from the public lands, whether surveyed or unsur veyed, townsites on the shores of harbors, at the junction of rivers, important portages, or any natural or prospective centers of population. The old method of obtaining title to townsite lands is as follows: When, in the opinion of the President, the public interests require it, it shall be the duty of the Secretary of the Interior to cause any of such reservations, or part thereof, to be surveyed into urban or suburban lots of suitable size, and to fix by appraisement of disinterested persons their cash value, and to offer the same for sale at public outcry to the highest bidder, and thence afterward to be held subject to sale at private entry according to such regulations as the Secretary of the Interior may prescribe; but no lot shall be disposed of at public sale or private entry for less than the appraised value thereof. And all such sales shall be conducted by the Register and Receiver of the land office in the district in which the reservatior may be situated, in accordance with the instructions of the Commissioner of the Genera Land Office. In any case in which parties have already founded, or may hereafter desire to found, a city or town on the public lands, it may be lawful for them to cause to be filed with the recorder for the county in which the same is situated, a plat thereof, for not exceeding six hundred and forty acres, describing its exterior boundaries according to the lines of the public surveys, where such surveys have been executed; also giving the name of such city or town, and exhibiting the streets, squares, blocks, lots, and alleys, the size of the same, with measurements and areas of each municipal subdivision, the lots in which shall each not exceed four thousand two hundred square feet, with a statement of the extent and general character of the improvements; such map and statement to be verified under oath by the party acting for and in behalf of the persons proposing to establish such city or town; and within one month after such filing there shall be transmitted to the General Land Office a verified transcript of such map and statement, accompanied by the testimony of two witnesses that such city or town has been established in good faith, and when the premises are within the limits of an organized land district, a similar map and statement shall be filed with the Register and Receiver; and at any time after the filing of such map, statement, and testimony in the Genral Land Office, it may be lawful for the President, to cause the lots embraced within the fimits of such city or town to be offered at public sale to the highest bidder, subject to a minimum of ten dollars for each lot; and such lots as may not be disposed of at public sale shall thereafter be liable to private entry at such minimum, or at such reasonable increase or diminution thereafter as the Secretary of the Interior may order from time to time, after at least three months' notice, in view of the increase or decrease in the value of the municipal property. But any actual settler upon any one lot, as above provided, and upon any additional lot in which he may have substantial improvements, shall be entitled to prove up and purchase the same as a pre-emption, at such minimum, at any time before the day fixed for the public sale. When such cities or towns are established upon unsurveyed lands, it may be lawful, after the extension thereto of the public surveys, to adjust the extension limits of the premises according to those lines, where it can be done without interference with rights which may be vested by sale. Fatents for all lots so disposed of at public or private sale are issued as in ordinary cases. If within twelve months from the establishment of a city or town on the public domain, the parties interested refuse or fail to file in the General Land Office a transcript map, with the statement and testimony called for above, the Secretary of the Interior will cause a survey and plat to be made of such city or town, and thereafter the lots in the same shall be disposed of as required by such provisions, with this exception, that they shall each be at an increase of fifty per centum on the minimum of ten dollars per lot. The preceding method is not much used. The better one is as follows: In case the town is incorporated, the corporate authorities thereof, and, if not incorporated, the judge of the county court for the county in which the town is situated, may enter at the proper United States land office, and at the minimum price of $1.25 per acre, the land so settled and occupied for townsite purposes, in trust for the occupants thereof, according to their respective interests; the execution of which trust, as to the disposal of the lots in the town, and the proceeds of the sales thereof, to be conducted under such regulations as may be prescribed by the legislature of the State or Territory in which the same may be situated. The entry of the land must be made, or a declaratory statement of the purpose of the inhabitants to enter it as a townsite must be filed with the Register of the proper land office, prior to the commencement of the public sale of the body of land in which it is included, and the entry or declaratory statement must include only such land as is actually occupied by the town, and the title to which is in the United States; but in any Territory in which a land office may not have been established, such declaratory statements may be filed with the surveyor-general of the surveying district in which the lands are situated, who shall transmit the same to the General Land Office. Where the number of inhabitants is one hundred and less than two hundred, not exceeding three hundred and twenty acres can be embraced in an entry; where the population is more than two hundred and less than one thousand, not exceeding six hundred and forty acres; and where the inhabitants number one thousand and over, not exceeding twelve hundred and eighty acres; and for each additional one thousand inhabitants, not exceeding five thousand in all, a further grant of three hundred and twenty acres is allowed. If upon surveyed lands, the entry shall in its exterior limits be made in conformity to the legal subdivisions of the public lands authorized by law. When it is desired to enter a townsite found upon the unsurveyed public lands, a written application should be presented to the surveyor-general of the proper district for a survey, and the amount estimated by him as sufficient to cover the said cost and expenses must be deposited with any Assistant United States Treasurer or designated depositary in favor of the United States Treasurer, the depositor taking a duplicate certificate of deposit, one to be filed with the surveyor-general, and the other retained by the depositor. On receiving such certificate, showing that the requisite sum has been deposited in a proper manner to pay for the work, the surveyor-general will transmit to the Register and Receiver of the district land office his certificate of such payment having been made, and will contract with a competent United States deputy surveyor, and have the survey made and returned in the same manner as other public surveys, after which the lands embraced within the site may be entered, or filed upon, as in the case of townsites upon surveyed lands. All military and other reservations of the United States, private grants, and valid mining claims are excluded from the operation of these townsite laws. In patents issued thereunder it is expressly declared as follows, viz: "No title shall be hereby acquired to any mine of gold, silver, cinnabar, or copper, or any valid mining claim or possession held under ex isting laws of Congress." The amount of land that can be reserved from pre-emption and homestead entry, by reason of the existence or incorporation of a town upon the public domain, is two thousand five hundred and sixty acres, unless the excess shall be actually settled upon, inhabited, improved, and used for business and municipal purposes." |