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TIMBER CULTURE ENTRY-NATURAL GROWTH.

KELLY v. THORPE.

That the natural growth of timber is restricted by anuual fires does not render the land containing such growth subject to timber culture entry.

Acting Secretary Muldrow to Commissioner Sparks, June 7, 1887.

I have considered the case of James W. Kelly v. Garrett L. Thorpe, on appeal by Thorpe from your office decision, dated October 31, 1885, holding for cancellation his timber culture entry, No. 2967, made August 6, 1883, upon the SE. of Sec. 20, T. 149 N., R. 42 W., 5th P. M., Crookston, Minnesota.

Kelly filed his affidavit of contest December 27, 1884, charging that the section in which the tract covered by said entry is situated had on it at the date of entry large quantities of forest trees of natural growth, to wit, about ten acres of poplar and balm of gilead trees, ranging in height from ten to thirty feet and in diameter from two to eight inches. If this charge be true, or approximately true, the entry made by Thorpe is illegal, because made upon land not subject to entry under the timber culture law.

A hearing was ordered and had March 2, 1885, at which both parties、 were present in person and by counsel.

▲ considerable amount of testimony was taken, upon a review of which the register and receiver recommended that the contest be dismissed for the reason that in their opinion "nature has not provided what in time will become an adequate supply of timber for the wants of the people likely to reside on that section."

Your office decision appealed from found the testimony very conflicting, but found for contestant and held the entry for cancellation, for the reason that it is established that the section is not devoid of timber. From that decision claimant appeals, assigning four specifications of error, which in substance amount to an averment that the evidence failed to sustain the allegations in affidavit of contest, and that the entry was valid and legal under the rulings of the Department in force when it was made, and should be allowed to stand even though under present rulings a like entry would not be permitted. As to the character of land subject to entry under the timber culture law, the statute is very explicit. It requires the applicant in every case to swear that "the section of land specified in my (his) said application is composed exclusively of prairie lands, or other lands devoid of timber."

It is admitted that there are trees in considerable number on the section, and therefore that it is not "exclusively prairie," or "devoid of timber," but it is averred that they are small and scattered, and that they do not render the section of such a character as to make the entry in question illegal under the rulings in force at the date it was allowed by the local office.

2278 DEC-44

As the Department is slow to forfeit or infringe any rights acquired in good faith under former rulings and under an interpretation of the law different from that now in force, it becomes necessary to scrutinize very closely the evidence in the case in the light of the practice and the interpretation given the law at and about the time of the entry. The testimony on both sides shows that there are trees on the section. No witness estimates the number. The evidence as to the size of the trees and the area of ground covered by them is conflicting. Testimony for contestant is to the effect that they range from one to thirty feet high; that they stand in groves in different parts of the section, and that altogether there are on said section ten acres and more of timber-poplar, balm of gilead and willow—some of which is on the quarter covered by the timber culture entry. Thorpe and his witnesses, however, testify that the groves referred to are not timber, but mere brush, the stems of the largest of which do not exceed four inches in diameter, covering altogether not to exceed an acre or two. The claimant has never seen the land but once. not therefore be very exact.

His knowledge can

The adjoining and surrounding sections of land have on them more or less timber. Within two or two and a half miles east, according to claimant himself, is heavy timber. Cord-wood in the vicinity of the land in question is worth from one to three dollars a cord, according to different witnesses. This would indicate that there is no scarcity of timber in the locality. The most of the timber in section 20 is on the NW. thereof, and that is plowed around by the occupant of that quarter to protect it from fires. It is evident that occupants regard the timber as worth saving.

Claimant testifies that the groves present the appearance of having been periodically damaged by fire, and says that if protected from fire the trees would develop into trees of ordinary size. While most of the timber is small, it seems quite evident that if protected from fire it will grow and increase rapidly.

The very testimony offered by contestee to show that much of the socalled timber is really brush and sprouts of one or two years' growth is in view of all the facts and circumstances evidence against him, and goes to confirm the view that if protected from fire the land would in a few years have on it a strong growth of valuable timber, for in spite of fires, which have heretofore swept the section, the young timber pushes itself up and continues to grow. Poplar and balm of gilead, which compose most of the timber on the section in question, are naturally of rapid and strong growth.

This case is in many respects like that of Box v. Ulstein (3 L. D., 144), decided by this Department in October, 1884, and on the theory advocated for this claimant, viz: that of the probability of the natural growth proving adequate for the supply of the wauts of the people likely to reside on the section.

In that case, as in this, the timber was mostly poplar and balm of gilead, which stood in groves or thickets, and was styled by the claimant "brush."

It was there urged that most of the trees were small and young, and that some of them had been injured and destroyed by fire. But to this the Department said it "does not change the fact that nature has already done all that the timber culture act was designed to accomplish." That decision ended by directing the cancellation of Ulstein's timber culture entry. The reasoning of that case is quite appropriate to this. A careful examination and consideration of the whole record discloses no reason for disturbing the conclusion arrived at by your office. On the other hand, my judgment is that even applying the very liberal rulings which prevailed in the land department about the time this entry was made, it is because of the character of the land, not such as could properly be allowed to stand.

Your office decision is therefore affirmed.

RAILROAD GRANTS IN CONFLICT; PRIVATE CLAIM.

GORDON v. SOUTHERN PAC. R. R. Co.

The claim to the Azusa Rancho was sub judice until patent issued thereon, and land within the claimed limits thereof was in reservation until that date.

Under section 23 of the grant of March 3, 1871, lands embraced within the indemnity withdrawal for the Atlantic and Pacific Railroad were excepted from the grant to the Southern Pacific.

Acting Secretary Muldrow to Commissioner Sparks, June 7, 1887.

I have considered the case of John T. Gordon v. the Southern Pacific Railroad Company on appeal by the latter from your decision, dated January 5, 1885, rejecting its claim to certain lands hereinafter described.

It appears from the record that Gordon, in September, 1884, applied to enter under the homestead laws lot 2 of Sec. 27, lot 6 of Sec. 22, the NW. of SW. 1, and the S. of SW. of Sec. 23, T. 1 N., R. 10 W., S. B. M., Los Angeles, California. The local office rejected his application, because "a portion of the tract applied for is within the limits of the withdrawal for the Southern Pacific Railroad Company."

Your decision states that the tracts in the odd numbered sections are within the limits of the grant of March 3, 1871, to the Southern Pacific Railroad Company, branch line, as shown by the map designating the route of said company's road, filed in your office April 3, 1871, in accordance with which lands were ordered withdrawn by letter of April 21, 1871, received at the local office May 10, 1871.

You found that said tracts were also within the thirty mile indemnity limits of the grant by the act of July 27, 1866, to the Atlantic and Pacific Railroad Company (14 Stat., 292), as shown by said company's map

of designated route filed in your office March 12, 1872, the withdrawal on which was ordered by your office letter of April 22, 1872, received at the local office May 7, 1872.

Gordon claims that the land covered by his homestead application was formerly within the exterior boundaries of the Azusa rancho and was thereby excepted from the operation of the railroad grant.

Of course, the railroad company makes no claim to that portion of the land covered by Gordon's homestead application, which falls in the even numbered section.

Lot 6 of Sec. 22 is therefore not in controversy in this case.

As to the residue of the land applied for by Gordon, it appears that the Southern Pacific Company, on the 25th of February, 1883, selected lot 2 of Sec. 27 and the S. of SW. of Sec. 23, and it claims the right under its grant to all the land described in said Sec. 23.

Your decision finds from an examination of the maps and diagrams on file in your office that lot 2 of Sec. 27 and the greater portion of the W. of SW. of Sec. 23 fell within the claimed limits of the Azusa rancho, as surveyed by George H. Thompson in 1868, but were excluded therefrom by the Hancock survey, which was approved and patented May 29, 1876. You therefore hold that said tracts were sub judice at the date when the grant to the Southern Pacific Railroad Company became effective by the filing of its map of designated route in April, 1871, and also at the date of the indemnity withdrawal for the benefit of the Atlantic and Pacific Railroad Company, the order for which reached the local office May 7, 1872. So holding, your conclusion is that said lot 2 in Sec. 27, and the W. of SW. of Sec. 23 were excepted from the grant to the Southern Pacific Company, and from the withdrawal for the Atlantic and Pacific Company, and were subject to disposal as public lands.

After a careful examination of the maps and diagrams, I find that all of lot 2 in Sec. 27 and the major portion of the W. of SW. of Sec. 23 fall within the Thompson survey of the Azusa rancho, and I concur in your conclusion that said tracts were within the claimed limits of said rancho, and did not pass to the Southern Pacific Company under its grant, nor were they withdrawn for the benefit of the Atlantic and Pacific Company. In the case of Sansom v. Southern Pacific Railroad Company (4 L. D., 357), it was held by this Department that the claim to the Azusa rancho was sub judice until May 29, 1876, when patent issued thereon, and that lands within the claimed limits thereof were in reservation until that date.

As to the remaining portion of the land claimed by Gordon, to wit, the SE. of SW. of Sec. 23, you decide that the Southern Pacific Company can have no rightful claim for the reason that said tract is within the indemnity limits of the grant to the Atlantic and Pacific Company by act of 1866. You base your decision on this point on the

proviso contained in Sec. 23 of the act of March 3, 1871 (16 Stat., 579), making the grant to the Southern Pacific Company

"That this section shall in no way affect or impair the right, present or prospective, of the Atlantic and Pacific Company, or any other railroad company."

In the case of Sansom v. the Southern Pacific Railroad Company (supra), it was found by the Department that the Azusa rancho, "as originally claimed and granted, embraced all land having for its boundaries the Sierra, or mountain on the north, the western lines of San Jose, and San Jose addition on the east, the road of San Jose (which seems to be platted as San Bernardino road) on the south, and the Azusa, or San Gabriel river, and the boundary of Andres Duarte on the west."

I am inclined to think from an inspection of the maps before me that a critical examination of the maps, diagrams and diseño in the Azusa rancho record would show this tract to be south of the "Sierra, or mountain on the north," and consequently within the Azusa rancho as claimed, and for that reason excepted, like the other tracts described, from the grant to the one railroad, or the withdrawal for the other.

But, if this be not true, and the tract be, as your decision treats it as being, outside of the reservation on account of the Azusa rancho, your conclusion, based on section 23 of the granting act of March 3, 1871, is, in my judgment, correct, and the company appellant got no right to the tract under its grant.

In the case of the Texas Pacific Railroad Company and Southern Pacific (Branch Line) Railroad Company (4 L. D., 215), this Department had occasion to consider the effect of the proviso above quoted from Section 23 of the act of 1871.

In the opinion of the Assistant Attorney General in that case, which opinion was adopted by the Department, the following language was used relative to said proviso:

It is difficult to see how it would have been possible more clearly to except said lands from the operation of said grant to the Southern Pacific than by providing that the latter grant should not "affect or impair the right, present or prospective, of the Atlantic and Pacific Company, or any other railroad company.

What was there said is fully applicable to the branch of this case now under consideration and to the tract in question. The SE. of SW. of Sec. 23, if not within the exterior boundaries of the Azusa rancho, was embraced within the indemnity withdrawal for the Atlantic and Pacific Company, and gave to that company a prospective right which excepted the tract from the Southern Pacific grant.

This disposes of all the subdivisions embraced in Gordon's homestead application.

Your decision holding in effect that the Southern Pacific Railroad Company has no title or valid claim to any of the tracts herein described is confirmed.

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