TIMBER CULTURE CONTEST-SPECIFIC CHARGE.

GREENOUGH v. WELLS.

A contestant can not take advantage of a default, shown by the evidence to exist, which is not specifically alleged in the affidavit of contest.

The government will not require the cancellation of a timber culture entry on account of a failure to secure a growth of trees that is not due to bad faith or negligence. Planting done in advance of the time required by the statute may be regarded as in due compliance with the law, if the land has been properly prepared for the culture of trees.

Secretary Smith to the Commissioner of the General Land Office, October (J. I. H.) 9, 1894. (J. I. P.) April 16, 1887, the defendant made timber culture entry No. 8585 of the NW. of Sec. 4, T. 116 N., R. 78 W., Pierre, South Dakota, land district.

February 29, 1892, the plaintiff filed affidavit of contest, alleging, (1) that William S. Wells has totally failed to plant to trees, tree seeds or cuttings any part of said tract; (2) that he has not cultivated any part of said tract for four years last past; (3) that there are now no trees growing upon said tract; and (4) that said tract was totally abandoned as a timber culture entry.

May 2, 1892, hearing was had before the local office.

May 10, 1892, the local officers rendered dissenting opinions. The register recommended the dismissal of the contest, while the receiver recommended the cancellation of the entry.

Both parties appealed to your office, which, on February 16, 1893, affirmed the decision of the receiver, and held the defendant's timber culture entry for cancellation.

The defendant's appeal from that decision brings the case here.

The facts disclosed by the evidence are fairly set forth in your office letter as follows

It appears from the record that the land in dispute was used by Mr. Wells, in connection with several thousand acres adjoining, as a horse ranch, with the exception of about twenty acres in the extreme northwest corner, which he had fenced, plowed and planted to corn during the first and second years after entry. Also that the said twenty acres were cultivated the third year; that in the last month of said year, ten acres thereof were planted to tree seed; that in June or July, 1890, the entire twenty acres were sowed to millet, in preparation for which the ten acres previously planted to tree seeds was gone over with a harrow to the depth of two to three inches.

The record fails to show whether the planting of millet on the ten acres referred to, at the time and in the manner above mentioned, was beneficial or otherwise to the growth of the tree seed planted on the same tract a few months previous. It is shown however that the tree seed so planted failed to grow.

Burtis Dickey, the brother-in-law and agent of the defendant, testified that he procured some tree seed in the spring of 1891, and hired one Joe Bruette, to plant the same on five acres of said tract prior to April 16, 1891. The witness had no personal

knowledge that the planting contracted for, was done, and several witnesses for the contestant testified that they frequently passed over the tract in question in the spring of 1891, and saw no signs of cultivation.

The first witness on behalf of plaintiff established substantially the above state of facts; whereupon the defendant moved to dismiss the contest, on the ground that the allegations of the contest affidavit were disproved, and no default shown on the part of the defendant. The plaintiff then tendered some amendments to his affidavit of contest, which he asked permission to make, and which admitted compliance with the law during the first three years after entry, but averred that the seed planted the third year did not grow; that defendant did not replant any during the fourth year, and had done nothing since the third year's planting up to filing affidavit of contest toward complying with the timber culture law.

The motion to dismiss and the motion to amend were both overruled, and the plaintiff continued the introduction of testimony which tended principally to corroborate the evidence of the first witness. When plaintiff rested, defendant renewed his motion to dismiss, on the same grounds as before, which was again overruled.

On his appeal to your office from the receiver's decision he alleges the action of the local office in overruling his motion to dismiss the contest as error, and in his appeal here he alleges that your office erred in not considering and passing upon that specification of error, which he insists is one of the most important points in the case.

Assuming that the first two allegations of the affidavit of contest were true, the third would follow as a matter of course, as would also the fourth. But from the facts above set forth, it is at once seen that the first two allegations were disproven, and that the converse of those propositions was true. The receiver and your office find the third allegation to be true, not because the first and second defaults alleged were proven, but because the tree seed planted the third year did not grow, and because of the apparent default which was established, viz: that the defendant did not plant or replant any trees, tree seed or cuttings the fourth year. And the receiver and your office hold that the third allegation having been established, "it is prima facie evidence of default," and therefore the burden is on the defendant to show that it was not because of his negligence, citing the rule laid down in Phelps v. Rape (7 L. D., 47).

There is no rule better established than that a contestant cannot take advantage of a default, shown by the evidence to exist, which is not specifically alleged in the affidavit of contest. Platt v. Vachon (7 L. D., 408); Bell v. Bolles (9 L. D., 148); Tyndall v. Prudden (13 L. D., 527); Truex v. Raedel (16 L. D., 380); Alexander v. Hamilton (17 L. D., 452).

It follows therefore that the apparent default of the fourth year not being alleged in the affidavit of contest, can not inure to the benefit of

the plaintiff, and that, so far as he is concerned, if the defendant can show that the failure of the third year's planting to grow was not the result of negligence on his part, it eliminates the plaintiff from the case, and leaves it between the entryman and the government on the apparent default of the fourth year, (see authorities above quoted) provided the fourth allegation of the contest affidavit be not established.

It is stated by the receiver in his decision that either of two reasons account for the failure to grow of the tree seeds planted the third year (1) because the defendant planted them too deep, and (2) because of the drought which ensued during the season following said planting. The second reason would not show negligence on the part of the defendant. The first one might show bad judgment, but does not necessarily show bad faith. Cropper v. Hoverson (13 L. D., 90, at 91); Haffey v. States (14 L. D., 423, and authorities there cited).

The record shows beyond all question that the ground planted to tree seeds had been thoroughly ploughed and cultivated for several seasons prior to said planting, and was carefully prepared for the seed planted therein during the third year, and there is no attempt to show that said planting was not done in good faith and in such a manner as defendant believed most conducive to the growth of said seed. Hence their failure to grow was not due to any fault or negligence on the part of defendant, but to the dry season which followed.

Unless the apparant default of the fourth year shows bad faith, as between the government and the entrymen, the entry will not be canceled. Andrews v. Cory (7 L. D., 89); Thompson v. Heirs of Partridge (10 L. D., 107).

It is to be remembered that the third year's planting was done just before the expiration of that year, that is, just prior to April 16, 1890. The season following was extremely dry. It had passed and the time for replanting had got by before the failure of the seeds to grow was demonstrated, and even then defendant may have believed they would sprout the season following. Had they been planted a few days after the 16th of April, 1890, the result would have been the same. There could be no default until the end of the fourth year, because the acreage of planting required within that time had been done. True, it had been done in advance of the time required by the statute, but that is "a compliance with the law so far as time is of the essence of the matter, provided the land has been broken and properly prepared,” all of which was done in this case. Grengs v. Wells (11 L. D., 460); Friel v. Bartlett (12 L. D., 502); Swall v. Loeb (15 L. D., 591).

It follows, then, that up to the end of the fourth year the law had been complied with. That being true, there could be no default until after that time. If there was a failure of seeds to grow during the fourth year, the defendant would have the fifth year in which to replant, and an affidavit of contest filed before the expiration of that year, as was this one, would not affect that right. The evidence shows

that before the expiration of the fifth year, but after the filing of the affidavit of contest, the tract planted to tree seeds was again carefully prepared and planted to cuttings and tree seeds.

Hence I am of the opinion that there is no bad faith shown between the entryman and the government, and no showing that will warrant the conclusion that the defendant has abandoned said tract as a timber

culture entry.

Therefore, defendant's motion to dismiss the contest should have been sustained, and the failure of your office to pass on that question

was error.

Your decision is therefore reversed, and the contest dismissed.

CONTEST-RELINQUISHMENT-RESIDENCE.
PRICE v. RILEY ET AL.

The right of a contestant to be heard on a charge of abandonment is not defeated by a subsequent relinquishment, and intervening adverse entry of a third party, even though the relinquishment is not the result of the contest.

Residence on land while it is covered by the entry of another does not secure any right as against a contestant who institutes proceedings to secure the cancellation of said entry.

Secretary Smith to the Commissioner of the General Land Office, October (J. I. H.) 9, 1894. (J. W. T.)

The above cause is before me on appeal from your office decision of September 10, 1892, affirming the decision of the local officers, dismissing the contest of Willie C. Price, and denying to him a hearing to determine his right to the NW. of Sec. 9, T. 9 N., R. 3 E., Oklahoma land district, Oklahoma Territory, as between him and Charles M. Rodman, who had made homestead entry covering said land; also denying said Price's application to make entry therefor.

On September 23, 1891, Francis M. Riley made homestead entry for the above described tract.

May 4, 1892, Willie C. Price initiated a contest, charging in his affidavit that said Riley had wholly abandoned said tract, and failed to establish his residence thereon since making entry.

On May 9, 1892, Riley's entry was cancelled by relinquishment. On May 9, 1892, Charles M. Rodman made homestead entry for the same tract, subject to the rights of contestant.

May 9, 1892, said Price applied to make homestead entry for the tract, having in view the establishment of a preference right of entry, arising from the relinquishment aforesaid.

This application was suspended, to await the result of an order, requiring said Rodman to show cause why his entry should not be can. celled.

On the 8th day of June, 1892, said Rodman filed his affidavit, corrob orated by John E. Carson, and his motion to dismiss Price's contest. The motion was denied, and the parties were ordered to appear on July 6, 1892, for the purpose of allowing said Rodman to make a showing on the allegation that Riley's relinquishment was not the result of Price's contest. On the said last mentioned day, Rodman set up the following facts, in an affidavit corroborated by John E. Carson.

1st. That at the time the relinquishment hereinbefore mentioned, was filed, this affiant was a resident upon said tract, and had improvements thereon of the value of $300.00. That the same had been settled upon and occupied by him, with the bona fide intention of taking the same for a homestead.

2d. That the relinquishment of Francis M. Riley was not the result of said contest by William C. Price-said relinquishment having been executed March 22, 1892— and on the afternoon of that day, together with the homestead application of this affiant, was tendered during the business hours, to the Oklahoma City land office. That owing to the fact that the office of register was at that time vacant, said office, and the receiver thereof, refused to receive said papers.

3d. That at the time of the presentation of said relinquishment, and homestead application for said tract, this affiant was informed by the receiver of said office, that his rights would not be jeopardized, if settlement and improvement were made, and continued in good faith, until such time as said office was again in a condition to do business, and that if said relinquishment and homestead application were presented within ninety days from the time of making such settlement, that affiant's rights would be secured. That, relying upon said statement, affiant immediately made settlement, as aforesaid, and has continued the same up to the present time.

In answer to this, the contestant filed the following statement: Now comes the above named contestant, and says that each and every allegation set up in the showing of Charles M. Rodman, in answer to citation of the local office, requiring him to appear and show cause why his homestead entry for the above described tract, should not be cancelled, is true, and contestant admits that said showing is sufficient to overcome the presumption that the relinquishment of Francis M. Riley was the result of his contest herein, and now makes formal application to the honorable register and receiver of this office to have notice issue on his contest affidavit against the homestead entry of said Riley, and to have said matter set down for hearing, and to be allowed to introduce evidence in support of his charge made in said affidavit of contest-that the said Francis M. Riley had wholly abandoned said tract, and wholly failed to establish his residence thereon, for more than six months after the date of his said entry.

It seems that more than six months had elapsed after Riley had made his entry when Price filed his affidavit of contest. Rodman went upon the land while it was covered by a homestead entry, and for that reason gained no rights by his settlement.

The admission by Price that the relinquishment of Riley filed by Rodman on May 9, 1892, was not caused by his contest, was not an admission, as stated by your office, that at the time of the filing of said contest no cause of action existed against said entry, but was simply an admission that the action of Riley in filing the relinquishment was not induced by his contest. But although the filing of the relinquishment was not induced by the contest, it did not deprive Price of the right to show that the allegations contained in his contest affidavit