VOL. X. COPP'S LAND OWNER. WASHINGTON, D. C., JANUARY 15, 1884. No. 20. ARE you not making a serious mistake THIS paper furnishes more valuable law information for less money, and is read by more land attorneys and real estate dealers, by more homestead, in failing to purchase Copp's Public Land pre-emption, and other land claimants, and by more Laws? See advertisement on 4th page of mine owners, engineers, and superintendents, than any other publication in the United States. FOR SALE TO HIGHEST BIDDER. Three soldier's additional homestead Editorial Notes- Another Lie Nailed "-Life Insurance MINES AND MINERALS. PRE-EMPTIONS. Wm. Lloyd Peacocke Neils Larsen-Townsite of Leadville Colo.-William A. Chessman-Samuel McMaster-Manhattan & San Juan Silver Mining Co 322 323 324 Carmichael vs. Urguides-Moore vs. Horner- 326 327 Curtis & Burdett, Washington, D. C.... Capt. John Mullan, San Francisco & Washington. D. H. Talbot, Sioux City, Iowa.. Ellery C. Ford, Washington, D. C.... D. K. Sickels & Co., Washington, D. C.... C. W. Holcomb, Washington, D. C..... HAVE you bought the new 26 Metal- "ANOTHER LIE NAILED.” By a recent decision of Secretary Teller, an The above item is in course of publi- 329 331 LIFE INSURANCE. the 332 In view of the immense loss of capital 334 336 336 PAGE issue an assessment of one dollar or more cover. LAND WARRANTS. Have you military bounty land warrants NOT properly signed? I buy such. Will standard market prices. buy and sell locatable warrants at the Address, Editor of LAND Owner. GERMANY has bought 1,000,000 acres of land in Mexico, and is negotiating for 9,000,000 more for colonizing purposes. GUNNISON County, Colorado, will divide patronage, in anthracite coal, with Pennsylvania. It abounds in Colorado, the first available supply in the country outside of the Pennsylvania fields. WALNUT lumber in Indiana is becoming so scarce and valuable that rails are acquiring a market value for manufacturing Had the original trees been alpurposes. lowed to stand, they would now be more valuable than the cultivated land. THE grazing lands of Colorado, Nebraska, Wyoming, Montana, Eastern Oregon, and Idaho are estimated at 1,000,000,The Oregon Short Line is now 000 acres. opening a region capable of supporting $5,000,000 cattle and 10,000,000 sheep, which, when it shall be fully occupied, can export yearly 600,000 cattle, and 1,500,000 sheep, besides 10,000,000 pounds of wool. on every living member in case of a death in the association. Consequently every memA CAR LOAD.-Nominally a car load is 336 ber keeps his insurance premiums in his own pocket until a death occurs, instead of 20,000 pounds. It is also 70 barrels of entrusting them to the pockets of officers. salt, 70 of lime, 90 of flour, 60 of whisky, This plan reduces to a minimum the 200 sacks of flour, 6 cords of soft wood, chances and temptations of dishonest offi- 18 to 20 head of cattle, 50 or 60 hogs, 90 cials, and when through carelessness or to 100 head of sheep, 9.000 feet of solid otherwise, consumptives, broken-down per- boards, 17,000 feet of siding, 13,000 feet of sons or old men tottering on the brink of flooring, 40,000 shingles, one-half less of the grave, are admitted to membership, IV this state of things soon becomes appa cause of death. Any assessment company strip Binder for the LAND OWNER? Get IV that refuses these checks on its honesty is two new suscribers, and it will be sent to iv unworthy of membership. IV you free. PRACTICE. WM. LLOYD PEACOCKE. COMMISSIONER MCFARLAND to Wm. Lloyd Peacocke, Salida, Colo., Dec. 14, 1883. (D. E. F.) You are advised that the department declines to express an opinion on hypothetiWhen the case comes up in proper form it will be decided. cal cases. * * ation for cemetery and hospital purposes. 30, 1878, and that December 30th followThese facts, in my judgment, constitute a ing, during the period of McMaster's pubvalid objection to the allowance of the lication, George Brettell, as attorney for entry as applied for, though the applica- F. S. and A. L. Brettell, filed an adverse tion on file may properly include such claim for the Greenback lode, sworn to by tracts as were not reserved or disposed of himself, and that suit was commenced prior to its date. Hence if there are suffi- thereon January 27, 1879. On February *cient data in your office to segregate the 25, 1880, you dismissed the adverse claim tracts already entered or conveyed, you for the reason that it was not sworn to by are instructed to allow entry of the re- either of the claimants, but by their attor mainder applied for. If such data are not ney. No appeal was taken from this disavailable, then I approve the requirement missal. of your decision, that the town-site authorities shall cause a map to be prepared from actual survey, showing precisely what portions of land they are entitled to You will no doubt see the impropriety of a decision in a case irregularly presented, without a full knowledge of the facts, and without opportunity for other parties to be heard. MINES AND MINERALS. Two Lodes in One Entry-Proof of Improvements. novo. SECRETARY TELLER to Commissioner Mc Farland, December 19, 1883. I am in receipt of yours of the 18th instant, enclosing motion of Messrs. Curtis & Burdett, of this city, filed with you on the 11th instant, asking a review of your decision of the 4th instant in the case of Mineral Entry No. 1835, Leadville, Colorado, claim of Neils Larsen upon the Pinnacle and Crown Point Lodes (copy herewith.) enter. With the above slight modification, your decision is affirmed. WILLIAM A. CHESSMAN. I have considered the appeal of William The case shows that after location of the claim in 1871, improvements were made thereon to the value of over $5,000, consisting of two dams, a tail-race, a supply ditch and a cabin (the latter valued at $25 only). The land is (or was) almost wholly covered by a reservoir of water, leaving In answer to your inquiry, I can see no but a small portion of exposed land. The objection in this case to the allowance of original application did not show the disthe entry, embracing two claims-but the covery of any mineral on the claim; and, proof must be conclusive that improve- although subsequent affidavits tend to ments to the value of five hundred dollars show there is a deposit of gold in the ($500) have been made on each lode. If gravel, and notwithstanding the principal this can not be shown, the entry of the dam was "washed away" in 1876, thus lode on which the statutory sum has been affording opportunity for mining operaexpended will be allowed, and permission tions since that date, there is no proof given for the filing of further proof with that any mineral has ever been extracted regard to the expenditure of five hundred from the land, or that work has been exdollars ($500) on the other lode. The lat-pended for that purpose. ter requirement will not necessitate proceedings de novo, as you provide for in your decision of the 4th instant. These views are intended to be applied only to this particular case. TOWNSITE OF LEADVILLE, COLORADO. SECRETARY TELLER to Commissioner Mc Farland, December 5, 1883. I have considered the appeal from your decision of June 27, 1882, (9 Land Owner 71), rejecting the application of the Mayor and City Council of Leadville, Colorado, by George C. Bates, their attorney-in-fact, to enter for townsite purposes the lands mentioned in said decision. The grounds of said rejection are that the greater part of the land applied for has already been patented as placer claims, that applications for placer entries on other parts of it are pending before your office, and that part of it has been granted by act of Congress to the Union Veteran Associ I concur with you in the opinion that the patent is not in fact sought for a plaas such right cannot be patented under a cer claim, but for a water right, and that mining claim, the application should be rejected. I affirm your decision. March 30, 1880, McMaster filed in your office a certificate of the clerk of the court that no suit was pending involving title to any part of the Lincoln claim, except the one brought by A. L. and F. S. Brettell, as owners of the Greenback lode, vs. him as owner of the Lincoln claim. On these facts you held it would be improper for you to issue patent to McMaster pending suit in a court of competent jurisdiction involving the possessory title to a large portion of the Lincoln claim, until he filed in your office a certificate from the clerk of the court that the suit had been dismissed or had been decided in his favor. Although Section 2326 of the Revised Statutes requires that "an adverse claim shall be upon oath of the person or persons making the same," and the present claim was filed upon the oath of their atdismissing the adverse claim became final torney only, and although your decision against such claimants for want of appeal Department, I am of the opinion that the so far as respects proceedings in the Land claim having acquired a status in the validity should be left to the judgment of courts, the question of its regularity and the court, and that pending the proceeding, this department should take no action therein. Your decision is affirmed. MANHATTAN AND SAN JUAN SILVER Adverse Claim-Abandonment-Proof-An ap- SECRETARY TELLER to Commissioner Mc Farland, December 19, 1883. I have examined the case of Mineral Entry No. 456, claim of the Manhattan and San Juan Silver Mining Company upon the Edith Lode, Lake City, Colorado, upon appeal from your decision of January 22, 1883, requiring the applicants for patent "to furnish positive and complete proofs of the abandonment of the Sampson SAMUEL MCMASTER. Adverse Claim-Suit.-Suspension of Proceedings. -A patent for a mining claim will not issue while a suit is pending in court involving the right of possession to the land, notwithstanding the adverse claim filed in the land office has been dismissed for irregularity. The original location certificate in givSECRETARY TELLER to Commissioner McFaring the boundaries of said Edith Lode, land, December 7, 1883. contains the following statement: "The Lode." I have considered the appeal of Samuel boundaries of said Edith Lode include a McMaster from your decision of March portion of the surface of an abandoned 19, 1883, in the matter of the Lincoln lode known as the Sampson Lode" and Quartz Mine, No. 132, in the Deadwood, because of this statement you require the Dakota, land district. proofs of abandonment aforesaid. It appears that McMaster filed an application for patent for this mine October In answer to a request made of you by the applicants as to why you require this proof, you state "that it has long been the practice of this office, where entry of a mining claim is based upon a relocation of an alleged abandoned mineral claim, to require full, positive and complete proof in regard to abandonment of the prior location." Section 2325 of the Revised Statutes prescribes the manner in which a patent may be obtained" for any land claimed and located for valuable deposits." After setting forth minutely the acts necessary to be done, the section closes with this language: "If no adverse claim shall have been filed with the Register and Receiver of the proper land-office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter." No adverse claim was filed in this case. There is no provision of the statute which requires the proof called for by you. A claimant of the Sampson Lode could not be heard to require such proof, nor could any third parties object "to the issuance of a patent" without it. The question of abandonment would be a very proper one to try in the court under the provisions of Section 2326, if an adverse claim was made. The practice of your office in this respect seems to go beyond the law, and requires proof in a manner not contemplated by the statute. The claimant of the Sampson Lode, if there be any such claimant, had full opportunity to test the fact of abandonment, if he desired to do so, by filing an adverse claim for that part of the surface embraced in the boundaries of the Edith. If he failed to make the claim, I do not think it proper for your office to put the applicants for patent to the trouble and expense of proving an abandonment which they alleged in their notice of location, and which should be held to be admitted by failure to file an adverse claim; and especially should this be so under a statute which declares that if no adverse claim is filed "it shall be assumed * * * that no adverse claim exists." In the respect mentioned, I reverse your decision. HOMESTEADS. ANNA D. WOHLFARTH. COMMISSIONER MCFARLAND to Anna D. Wohl farth, Seattle, Wash., Jan. 2, 1884. (D. T.P.) Notwithstanding the fact, as you state, that the women of Washington Territory have been granted the right of suffrage, it is held by this office that a married woman cannot make a homestead or timber culture entry, unless she has been deserted by her husband, or for some other reason can be regarded as the head of the family. FRANK NEISINGER. ilam Holloran, involving the S. E. of the Carelessness-Prior Settlers.-A second home-N. E. of Sec. 33, Tp. 11 S., R. 2 E., Los Angeles, California, on appeal by Banegas and Holloran from your decision of February 28, 1883, holding their entries as to the tract in dispute for cancellation, and awarding it to Stone. stead entry will not be refused on account of carelessness in selecting land upon which a prior settler is actually residing. COMMISSIONER MCFARLAND to Reg. and Rec., Fargo, Dakota, Jan. 2, 1883. (A. G. H.) I am in receipt of your letter of July Stone made homestead entry of the 13, 1883, transmitting application of Frank tract (with others) September 7, 1881, alNeisinger [H. E. 12053, June 6, 1883, N. leging settlement in April, 1873; Banegas E. 25, 130, 53], to be allowed to relin- made a like entry for the tract (with quish his homestead entry, that the same others) July 25, 1881, alleging settlement may be cancelled without prejudice, and in 1863, and Holloran made a like entry with credit for fee and commissions already for the tract (with others) September paid. 28, 1881, alleging settlement in June, 1878. From the evidence adduced, it appears that the tract in question was claimed by an alleged prior settler, one Louis Hatton [D. S. 11627, August 1 and October 20, 1882]. 66 A part of the township, including the tract in dispute, was surveyed and the plat thereof was filed in your office in 1857. The remainder of the township was You declined to recommend the ap- surveyed in 1881, and the plat of the plication as made, because there was whole was filed in the local office July 8, no such examination of the land as en- 1881. Each of the entries was made withtitles the party to a restoration of his in three months from that date, and was rights; none such as a prudent man wish- therefore within the required time under ing to make a home bona fide would have the 3d section of the act of May 14, 1880, made." and the three conflict as to the tract in I would state for your information that question. Neither party resides upon it, Neisinger's carelessness in selecting a but Stone and Banegas had improvements tract for entry, is not in controversy, as on it before the filing of the plat. Banegas this office allows a second entry, where undoubtedly settled before Stone, but there is sufficient evidence that the origi- whether the tract in question was within nal entry, could not be perfected because his claim prior to the settlement of Stone of prior valid adverse right of an actual is a disputed question, which the testisettler. The privilege of making a new entry (under the circumstances named) is a right of the entryman, and not an act of grace of this office. In the evidence submitted (duly corroborated affidavit) the pre-emptor, Louis Hatton, appears as as one of the corroborating witnesses, and it is shown that a prior valid adverse right to the N. E. 4, 25, 130, 53, appeared (under D. S., 11627), and that "Louis Hatton was actually residing on the land, and had valuable improvements thereon at the time said homestead entry was made." Therefore I have this day canceled H. E. 12953, as illegal, and yet without prejudice to the right of Frank Neisinger to make a new homestead entry upon any tract of land subject to such entry. You will note the cancellation in the usual manner. The matter of " with credit for fee and commissions paid,"-will be subject to instructions as given in Circular "M," December 1, 1883. (10 LAND OWNER, 306.) STONE VS. BANEGAS AND HOLLORAN. mony does not conclusively settle. Hence, you differ from the local officers in this respect; they awarding the tract to Banegas. There is also unsatisfactory testimony as to certain alleged arrangements between them respecting their dividing line, and also as to whether certain private surveys of the claims clearly show the tract to belong to either. In view of the doubts as to the legal rights of Stone and Banegas, I adopt my ruling of October 1, 1883, in the case of Burton vs. Stover, (between a pre-emptor and a homestead entryman*), which held that the spirit of Section 2274 of the Revised Statutes had in view the settlement rather than the nature of the claim, and that its provisions would embrace a homestead settlement, although its terms had reference to a pre-emption settlement only, and hence that in such case a joint entry might be awarded. This view is enforced by the provisions of the act of May 14, 1880, which extends to persons claiming under the homestead law the same rights in respect to the date of their settlement, as are allowed to pre-emption settlers. I therefore award to Stone and Banegas a joint cash entry of the tract in dispute, directing that if either fails to unite therein within ninety days from notice hereof the tract be awarded to the other; and as Holloran had no improvements on the tract, his entry as to it will be McFar-canceled. One tract embraced in three homestead entries Joint Entry-Act of May 14, 1880.-In view of the conflicting testimony, joint entry is allowed the two homesteaders who had improvements on the tract, and the third homestead entry is cancelled. SECRETARY TELLER to Commissioner land, December 28, 1883. I have considered the case of Mathias Stone, Jr., vs. Manuel Banegas and Wil Your decision is modified accordingly. *Published herein. land. JAMES VS. SCHOFIELD. On February 22, 1883, Benjamin Hunter namely, within thirty days after cancellaFinal Proof-Vested Right-Assignment.--Where asked that the land in contest be not tion, to enter the land for homestead pura homestead claimant has made final proof patented to either James or Schofield, but poses under the act of May 14, 1880. and paid or tendered the fees and commis- that action in that case be suspended until It appears further that your said letter sions, he is entitled to a final certificate, and he could have made the proper survey directing cancellation of Wright's entry has a right to make an agreement to sell the and plat to enable him to apply for a was received at the local office on FebruVerbal Agreement to Sell Void.-A verbal agree- patent for five acres embracing a mill site ary 7, 1882, at 9 o'clock, A. M., and that ment to sell land, is not binding under the on the land, alleging that since the hear- the cancellation was made on the local statute of frauds, and will not invalidate the ing he had erected a quartz mill thereon records at 9:45 A. M. of that day. On the rights of a homestead claimant. under a verbal promise made by James same day at 9 o'clock A. M., Wright was SECRETARY TELLER to Commissioner McFar-before the hearing, to convey to one at the local office, and at or about 9:15 land, December 3, 1883. Schultz or his assigns, the land upon A. M. made his application to purchase. which the mill was erected, in the event Said application was rejected by the local that the land should be patented to him officers for the reason that the entry had (James), and that he (Hunter) is Schultz's been cancelled prior to its receipt, and on assignee. He also produced a paper appeal the rejection was sustained by your alleged to be a copy of a receipt or con- decision aforesaid. tract signed by James, November 15, 1881 (since James' final proof), whereby James appears to have received from him forty dollars in full for said mill site. I have considered the case of John James, homestead claimant, vs. Charles Schofield, mineral claimant, involving the S. W. of N. W. 4 of S. W. 4, and the N. W. of S. W. of S. W. of Sec. 14, Twp. 1, R. 16 E., Stockton, California, on appeal by Schofield from your decisions of October 13, and November 16, 1882. 4 James filed declaratory statement, September 20, 1877, for the S. W. 4 of the section, alleging settlement in August, 1860, and made homestead entry for the same tract December 26, 1879. He filed a relinquishmnt for the N. W. of N. E. of said S. W. 4, October 26, 1881, for the reason that the same was mineral in character, and upon the same day made his final proof for the remainder of the tract, which appears to be satisfactory. Schofield appeared at the same time, alleging that the S. W. of N. W. of S. W. 4, and the N. W. of S. W. 4 of the S. W. were mineral in character, and upon testimony submitted in that respect, the local officers found that the land claimed by James-except the ten acres relinquished -was agricultural land, but declined to issue final certificate until your office should pass upon the matter. Counsel in their appeal assign for error in said decision firstly, that Wright was not deprived of his right of purchase by the cancellation of his homestead entry, I am of the opinion that the agreement as ruled in the case of J. W. Miller (9 with Schultz-even if proved as alleged Land Owner 57). Said case was one where being verbal and not in writing, is within the question was between the government the statute of frauds, and, pertaining to and the settler only, and in the subsequent real estate, is not binding upon, and can-case of G. S. Bishop (9 Land Owner, 95), not be enforced against James, and does it was held that when adverse rights atnot therefore invalidate his homestead tached prior to application under the act rights; and that after he had made his of June 15, 1880, the right of purchase was final proof, and tendered or paid the fees barred. and become entitled to the certificate, he had a right to make such agreement, and that whether or not the same is binding upon him, is a question for the courts and not for this Department. The application of Hunter is accordingly denied. POMEROY VS. WRIGHT. Counsel assign for error, secondly, that the record shows an application by Wright to purchase prior to the cancellation at 9:45 A. M. on February 7, 1882, and this raises the important question in the case. Your decision holds that "cancellation takes effect on the receipt of the letter of cancellation at the district office," and that in the case at bar it took effect at 9 A. M. on said day, and before the application to purchase was made. I do not think that a decision founded on either of the above propositions would satisfactorily dispose of this class of cases. The first makes the rights of the parties dependent on a mere form (namely, the clerical act of Cancellation.Cancellation of prior entry at the cancellation), while both ignore the rights local office determines when contestant's entry may be made, not when the right of entry of the contestant in the premises. The act of June 15, 1880, gives the entryman a SECRETARY TELLER to Commissioner McFar-right of purchase, and the act of May 14, land, December 17, 1883. Acts of June 15, and May 14, 1880.—The contest- ment becomes final. attached. It also appears that September 6, 1881, one Hanson was allowed to file a mineral application for lands including the N. of the N. E. of said S. W. Your decision of October 13th held that this application for land embraced in James' entry before a hearing to determine the character of the land was improperly allowed; but as there still remained ten acres of the tract covered by James' entry (claimed by Hanson as mineral), you allowed Hanson I have considered the appeal of Charles sixty days within which to file affidavits W. Wright from your decision of May 5, for a hearing touching the character of 1882, rejecting his application to purchase, those ten acres, otherwise final certificate under the act of June 15, 1880, the land would issue to James for his whole claim embraced in his homestead entry No. 3829, less that relinquished by him. Hanson namely the N. E. of Section 12, Townrelinquished October 21, 1881, the N. E. ship 116, Range 56, Watertown, Dakota. of N. E. of S. W. 4. By your subse- It appears from the record that Wright quent decision of November 16, 1882, for made said entry October 25, 1879, and reasons therein stated, Hanson's applica- that it was suspended by your letter of tion as respects the tract relinquished by July 24, 1880, for the reason that the him was declared cancelled, and in the affidavit did not conform to section 2294, absence of appeal, the same has become R. S. The entry was also contested for final. This removes the conflict as be- abandonment by one P. A. Pomeroy, detween Hanson and James. I have examined the testimony, and concur with you in the opinion that all of the land embraced in James' entry-except the ten acres relinquished by himis agricultural land, and that, with that exception, the same should be held for patent; and your decision is affirmed. cided adversely to Wright by the local 1880, gives the successful contestant a right of entry. These statutes are independent of and do not conflict with each other, for it is clear that by the later set Congress did not intend to interfere with any rights acquired under the earlier. The proviso to the act of June 15, 1880, reserving the rights or claims of subsequent homestead entrymen, was in my judgment not necessary to effect this result; like the proviso in the act of March 3, 1863, the intention of Congress is sufficiently clear without it (L., L. & G. R. R. Co. vs. U. S., 92 U. S., 733). In adjusting adverse claims under these two laws, therefore, the fundamental rule is that the homestead entryman, or his transferee, has the right of purchase only until the time when the contestant's right of entry attaches. Now the act of May 14, 1880, gives the contestant a right of entry for thirty days from date of the notice of the cancellation which he has procured. It thus fixes the time after which his right of entry ceases, might never be made, and the law would his suit, could not be divested even by a but it does not fix the time at which his thus become a nullity. Its manifest in- pardon of the offender. "The right so right of entry attaches. Hence this latter tention is to accord the right when the attaches in the first informer that the right must be determined by a considera- contestant procures the judgment, which king, who before action brought may tion of other statutes and of the general makes it the duty of the officers of the grant a pardon which shall be a bar to all principles of law applicable to the case. Land Department to cancel the entry, the world, cannot after suit commenced Section 2297 invests the local officers with for he is not empowered to make the can- remit anything but his own part of the power to hear and determine charges of cellation himself. For similar reasons it penalty. For, by commencing the suit, abandonment and change of residence; was held in Railroad Company vs. Smith the informer has made the popular action and, if they find adversely to the claimant, (9 Wall., 95), where it was said to be the his own private action, and it is not in it declares that "then and in that event duty of the Secretary of the Interior to the power of the crown, or of anything but the land shall revert to the government." ascertain and make out lists of certain parliament, to release the informer's inBut other statutes give the contestee the swamp lands, that "the right of the State terest " (2 Black. Com., 437). The same right to continue his defence until judg- did not depend on his action, but on the principle must apply in the case of a conment by the court of highest resort; whilst act of Congress ;" and the same rule is ap- testant under the Act of May 14, 1880, the Rules of Practice make the judgment plied to the rights of a Railroad Company whose right, however, by force of the final when no appeal has been taken within in Van Wyck v. Knevals (106 U. S., 367). Statute, attaches at date of the judgment, a fixed period. As the act of June 15, The rule thus deduced by a construction and not at initiation of contest. 1880, is remedial, a liberal construction of of the statute, namely, that the successful Nor is there any conflict between the it will extend the time of purchase to the contestant's right of entry attaches at rule laid down here and the established limit of the time of defence. Indeed, the date of and by force of the final judgment, rule of the Land Department, referred to contestant has not "procured the cancel- either by the local officers or on appeal, is by counsel for Wright, and in your decislation" until the contestee has exhausted in harmony with another settled rule re- ion aforesaid, that cancellation takes efhis right of defence. On the contrary, he lating to the disposal of the public lands. fect by a formal act of the local office. That has procurred the cancellation when there Where persons must acquire right to land rule is made for a different purpose, and is is no longer a right of appeal. Upon ad- by the performance of some act, the maxim founded on another law, or construction verse judgment, therefore, it follows that qui prior est tempore, potior est jure, ap- of law, which reserves all lands covered the original claimant loses his right to the plies; or as stated in Shepley v. Cowan by an entry, and declares it not to be land, when such judgment is final; the (91 U. S., 330)," the party who takes the "public land;" when the entry is canceled judgment itself determines his right, initiatory step in such cases, if followed in fact, the reservation is removed and the whilst the cancellation is a mere formal up to patent, is deemed to have acquired land restored to the public domain. The method of executing it, and takes effect the better right as against others to the two rules, being founded on different statby relation as of the date of the judgment, premises. The patent which is afterwards utes and designed to accomplish different so far as the entryman's rights are con-issued relates back to the initiatory act, ends, do not and can not conflict. The cerned. and cuts off all intervening claimants." former fixes the time when the right of From the foregoing it follows that, if Now, the two acts of Congress relied on entry by a successful contestant attaches rights are lost and acquired by a contest, by the parties to this cause provide two in law, and the latter the time when entry they are equally lost or acquired by the different things as initiatory acts to the may actually be made. It is well settled judgment of the local officers or on appeal. acquirement of a right of entry; one is an that a person may have a right of entry Now the successful contestant does acquire application to purchase, the other is a suc- prior to the actual cancellation of an exa right of entry by his contest under the cessful prosecution of a contest. Which- isting entry, as where land occupied by a act of May 14, 1880, and consequently he ever person completes his initiatory act settler is afterwards entered by another acquires it by the judgment, whose result first, acquires the superior right; and con- person. Such a settler has also a right to is published to the world at some subse- sequently if the contestant procures judg- the cancellation of the entry of record, quent date by the formal cancellation. ment before the entryman offers to pur- because he has a right to enter the land The law does not limit his right to the chase, the right to purchase is barred. If for himself by performance of the initial date of his cancellation; it makes it de-a right to patent is acquired by doing all act required by the law. And here again pendent upon the success of the contest. that the law requires the contestant to do, the rule laid down in this decision is in Hence he does all that the law requires a fortiori his right to have the cancella- harmony with pre-existing rulings of the him to do, in order to acquire the right of tion made is acquired by the same act, Land Department. entry, when he has successfully main- and the cancellation, like the patent, retained the charges, and his right would date from the final judgment were the cancellation never formally made; for "it is a well-established principle that where an individual in the prosecution of a right does everything which the law requires him to do, and he fails to attain his right by the misconduct or neglect of a public officer, the law will protect him" (Lytle v. Arkansas, 9 How., 614). Consistently with this it is held, under the Act of May 14, 1880, in the case of John Powers (8 Land Owner, 178), where "the contestant had done what he could to procure the cancellation," that "if it was cancelled in pursuance of his action he was within the descriptive terms of the statute, and entitled to its benefits." It would be a perversion of legal principles to construe the act referred to as giving a contestant right of entry only when he had "procured the cancellation" in fact, for that The decision in the case of Gohrman vs. lates back to its date and cuts off inter- Ford (8 Land Owner, 6), which has bevening claims. So, where a pre-emptor come a leading case on this subject, was has complied with the prerequisites of the based on a different state of facts from statute he is not only "entitled to patent," those in the case at bar. There the offer but "he is entitled to a certificate of to purchase was made before the hearing, entry "(Frisbie v. Whitney, 9 Wall., 194). and the only question was whether the As remarked in Shepley v. Cowan, in re- contestant had completed the initial act lation to two acts of Congress under required by the law at date of the offer to which adverse rights were claimed, "The purchase. It was held that he had not, two modes of acquiring title to land from but the reason was based on the rule that the United States were not in conflict with he could not actually make entry until each other. Both were to have full oper- after cancellation, without consideration ation, that one controlling in a particular of the question whether he could acquire case under which the first initiatory step a legal right to enter by a judgment; conwas had." Again, in Houston v. Coyle (10 Land Owner, 224), the analogy between the rights of a contestant and of a common informer was pointed out. Such analogy may be further illustrated by the fact that the right to a moiety of the penalty, which the informer at common law acquired by sequently that decision and this do not properly conflict. In the case of Whitney vs. Maxwell (10 Land Owner, 104), the facts were substantially the same, and it was decided on the authority of Gohrman vs. Ford. In Bykerk vs. Öldemeyer (10 Land Owner, 122) it was held that the right of purchase is not barred by an ad |