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CASE DECIDED (Continued from page one.) witness Clyde Groves, whose home stead adjoins the land in question, testified to the crops raised upon hi* land, and the office sustained claim ant's objection to the testimony (page 41 of transcript), unless it was shown the character of the lands was simi lar. This witness in cross examination (page 43), states: "On the south side of a coulee, where I raised a good crop of wheat, the soil is deeper and there is no rock like there is on the north side of this cou lee, and the rock come out of the top of the ground so the plow plows them out in places, and the nearest point my fence is to Mr. Moore's desert claim, we couldn't get the fence posts down some places more than three inches in the soil before we struck rock. Some places along ten or twelve rods they would go through pretty near a foot." The witness Gaston, page 48, testi fied that he is not acquainted with the character of the land in contest. Tfce witness Saylor testified, page 66, 67 and 68, that he farmed the homestead and desert claims of claimant in 1903, and raised 18 bushels of wheat to the acre, and that the yield on both claims was about the same and that the qualiey of the land is about the same (page 69). The witness W. E. Cummings testi fied that, while he never farmed any land in the vicinity of Moore's claims, he thinks the character of the land looks the same as the other land in the vicinity (page 94), and in cross exami nation, page 92, he does not know whether the soil on Moore's claims is deep or shallow, but that the natur al growth of grass looks the same. The testimony of witnesses Robinson, Osborne, Stapleton and Peregrine are to the same effect. All of the witnesses for claimant are old settlers in the vicinity of the land contest, and all testify that they have always considered and still maintain, from an experience of over twenty years in farming in the Judith Basin, that the land upon Rock creek bench, and particularly the land in contest, is deselt in character, designating desert lands as lands that will not, each year, produce a paying crop of grain without irrigation. We are of the opinion that the best test as to the productiveness of the land in contest is the result of the crop raised thereon without irrigation. It appears from the testimony that crops have been raised thereon during the years 1902, 1903 and 1904, yielding 18 bushels to the acre in 1902 and 1903, without irrigation, and 20 bushels to the acre in 1904. It is claimed by claimant that part of the 1904 crop was irrigated, but, whether it was ir rigated or not, we are of the opinion that 18 or 20 bushels of grain to the acre, taking into consideration the cost of production as shown by evidence, is not a reasonably remunerative crop, and that the testimony submitted does not sustain the allegation of the affi davit of the contest, that "Growing crops have been raised thereon in paying quantities without artificial irrigation." And that \hile it appears that some reasonably remunerative crops have been raised on some of the older loca tions in some seasons, the raising ol paying crops upon these lands without irrigation is still in the experimental state, and that it has not been shown conclusively that the land in contest is not non-desert in character. It is further alleged: "That the said claimant has not a sufficient water supply to reclaim the same." In support of this allegation protest ant has filed a list of water right loca tions of the waters of Rock creek, marked "Exhibit C," which has been certified to by the county clerk of Fer gus county. It is shown by the wit nesses Cooper and Elston that a unm ber of these locations were taken from Little Rock creek, an entirely different stream, and that a number of the oth er locations were abandoned. The "Exhibit C" is of no value as showing the actual appropriations of the wat ers of Rock Creek. The laws of the state of Montana confer no title of water. They permit locators to use what water they may be entitled to and when such water is not in use it is required to be turned back into its original source for the use of the next legal appropriator. Therefore, any agreement, such as is mentioned in the testimony, pages 515 to 519, to the ef fect that Cooper agreed that when not using the water he was entitled to, to divert it to claimant, would be an il legal agreement, as affecting prior ap propriations to claimant. The best evidence as to claimant's water supply is: Has he a legal right to the appropriation under the laws of the state of Montana of sufficient wat er to reclaim this land, and if so, has he conducted it upon the land so as to reclaim it from the present desert con dition? It appears that claimant's water rights, filed as recorded water right of the waters of Rock creek, of 650 inches, filed upon April 11, 1904, and of a noe eighth interest in a recorded W'ater right of 2,000 inches, filed December 16 1904, in all 466 inches, located for the purpose of irrigating lands in sec 34 T. 14 N., R. 16 E., M. M. It is not alleged that claimant'* ditches are not of adequate capacity to conduct sufficient -water upon the land to reclaim it. but that: "No water has been conducted there on in a manner calcluated to reclaim desert land." The size of the claimant's ditch has, however, been gone into, with the us ual contradictory evidence by expert surveyors. It appears that there are eight interests in the water right and ditch irrigating the land in contest, and 1,120 acres additional, in all 1,280 acres, a large portion of which is over four miles rom the point of diversion. The testimony of the witness Sur veyor Wasmansdorff is that at the point marked "6" in "Exhibit A" (the point of diversion from the Coopei ditch,) the size of the ditch is 18x9 inches, with a carrying capacity of 60 miners inches. The witness Surveyor Hogeland tes tifies, page 411, that at the same point the size of the ditch is 30x17 inches, and at a point 200 feet urther down the ditch the smallest measurement was 36x21 inches, carrying 255 inches, with an overflow of 240 inches, which over flow runs down a coulee and flows back into the ditch further down, fed by a box from the main Cooper ditch of a capacity of 800 inches in the trails and ditch. It is hardly conceivable that there should be such a difference in the es timated carrying capacity and size of the ditch as this shows between these two witnesses, and it certainly seems improbabre that eight men would con struct a ditch to carry sufficient water to irrigate 1,280 acres, and only make it 18x9 Inches in size, with a carrying capacity of 60 inches at the intake. The only testimony introduced as to the amount of water flowing in Rock creek at the intake of the Thomas Cooper ditch is his testimony, page 1ft to 121, wherein he places a flow in or dinary seasons during the irrigation season, at 2,500 inches, or, as he de scribes it, "from early spring to Ju ly," then decreasing to 500 inches. Of the witness Barney, who has seen sufficient water in Rock creek during June freshets to almost swim a horse, (page 258), and that the actual size of the creek in July is about 1,500 inches, page 261, there being very little water in the creek in August, (poge 262), and, upon cross examination, (page 262) that on July 3, 1903, there was plenty of water in the creek to fill all the ditches on the Rock creek bench. Also of the witness Elston, who tes tifies to the flow, in the upper portion of the creek, of a large amount of wat er, page 301. On page 306 he testifies that he has not been within a mile and a half or two miles of the head of the Cooper ditch since, he has been in that section of the country. It does not devolve upon this office to determine the validity of the water right locations upon Rock creek. We can only determine their status by the record as presented. Eliminating the abandoned locations as shown in the testimony, pages 515 to 519, in "Exhib it C," it must be held that there are existing locations of the waters of Rock creek, filed prior to the locations of claimant, of over 6,000 inches, and in the light of the failure of claimant to establish the status of these loca tions we are unable to determine from the evidence what portion of the wat ers of Rock creek are actually used during the irrigation season by these locators, or what portion of the wat ers of Rock creek during the irrigation season are available for appropriation by claimant. The witness Saylor testifies, page 57, that he farmed the land in contest during the year 1903, and that there was no irrigation during that year, though there was some water in the ditch that ran through the wheat field, which was the only ditch on the land that year. It further appears from the testi mony of claimant that in the year 1904 the water was not got on the land un til after the crops had headed out (pages 474 and 475), and had fired or burned (page 500 which explains the reason why there was a difference of only two bushels per acre between th<» crop of 1903, without irrigation, and in 1904, when the water is alleged to have been brought upon the land. There fore it appears from the testimony that no crops have been raised upon the land in contest as the result of ir rigation. It is only fair, therefore, to presume that had claimant sufficient water to reclaim his land before his crop had arrived at such a condition that irrigation would be of no bene fit. For these reasons we are of the opinion that the entry should be can celed. A large portion of the testimony has been devoted by contestant to an attempt to show that the association known as the Farmers and Rnach men's Protective association of Moore, Montana has used its influence to in timidate contestant and his witnesses in the prosecution of this case, and several exhibits of alleged attempts at intimidation of the witness Peregrine have been filed. It does not appear from the evidence that the claimant herein, the organiza tion, as an organization, or any indi vidual member of this organization, has in any way been connected with any threats or acts of intimidation against the contestant or any of his witnesses, and we consider all of the testimony upon this phase of the situ ation irrevelant, immeterial, and a useless expense on the part of the con testant. A motion has been filed to have part of the cost of the testimony taxed to claimant upon the ground that: "The said testimony piles up ex cessive costs upon the contestant," which will be separately considered in connection with the motion. An exhibit has been presented, con sisting of a cottonwood tree sprout, about four feet high, alleged to have been grown upon the Rock creek bench without irrigation. In view of the testimony connected with the filing of this exhibit, (pages 520, 521 and535), in this connection, and other testimony as to the growth o* trees without irrigation, and the ex pense of expressing this exhibit, we do not deem it necessary to forward it. MR. HILGER'S VIEWS. David Hilger. of the counsel for the entryman in this case, and who is on that side in other cases, stated to the Democrat that the case would be re pealed. He is of the opinion that the above decision will be reversed just as soon as it got before the department. Mr. Hilger gave out the following statement: "The decision in this case is a remarkable on in some respects. The register and receiver are main taining that there is no similarity be tween the various desert claims on the bench, and that each one should be adjudicated upon its merits; that the one just decided has no bearing what ever upon the other contests and des ert entries. The dcision dcides the For T hree Days Wednesday Thursday and Friday September 20 , 21 , 22 Watches, Clocks, Jewelry, Cut Glass, Hand Painted China, Silverware, at.... Absslute Cast See Bacgeios in Windows E. Sutter tE £ c= £ HOME COMFORT RANGE Your life depends on. what you eat, therefore good cooking and baking are essential. You get the best if your meals are prepared on a Home Comfort Range We guarantee every one we sell to work perfectly; more over, our prices on Home Comfort equals the cheapest stove offered in the city. Keep Warm This Winter The WONDERFUL "HOWARD" overdraft heater, made to burn wood or coal SPECIAL FEATURES, complete combus tion, warms the floor, dig saving in fuel, holds the fire and easy to operate. Sold only by the Fergus Gounty Hdw'e. Co. LEWISTOWN, MONTANA Phone 125 You are cordially invited to visit our store fair week. ^laiuaaiumaiaaiaiLUiUiaaauiUiUiaaiiuiuaiiuauass: following essential facts: They hold that in the entry under contest, under the department's regulations, that lands bordering on streams, lakes, or other natural bodies of water, or through which runs any river or upon which there is any pond or living stream, etc., can not be entered as desert land; that the land in contro versy does not come under this classi fication of the department of 'land which produces native grasses suffici ent in quantity, if unfed by grazing animals, to make an ordinary crop of hay in usual season,' such land not being desert according to the depart ment's ruling. They hold, third, that this land does not come under the de partment's classification of 'land that contains sufficient moisture to produce a natural growth of trees,' for the rea son that there isn't a single tree in the township. "This leaves the simple proposition that Entryman Moore has not shewn that he has produced a crop as the re sult of irrigation, and has not estab lished title to his water right. Thus, evidently, the register and receiver hold that the entry in contest is des ert in character, but that the entry man failed to conduct water upon it in sufficient quantities and at an ear ly enough date to show to their satis faction that he had raised a crop as a result of such irrigation. "We can assure you that the cast will be fought out on appeal, and both Mr. von Tobel and myself are in ac cord that on the points mentioned, which induced the register and receiv er to decide adversely to Mr. Moore, the evidence will be sufficient to have this decision reversed, and we base this conclusion on a long line of de partmental decisions. The register and receiver raise no question as to Mr. Moore acting in good faith and that he had taken up this land for his own use and benefit, and had com plied with the requirements of the des ert land law. Another question that is overlooked, and this is not taken into consideration by the special agents who are not familiar with the past conditions, and apparently make no effort to ascertain them. It is a fact that the snow fall has been lighter in the past five years than before, and at this time, I know from my own knowl edge that the streams and water cours es are lower than at any time within the past 26 years. This has resulted in very low streams for irrigating dur ing the recent seasons. "As a matter of equity, in reason able construction of the land laws, due allowance should be made for ex traordinary conditions, such as at present prevail. I do not mean to in sinuate that the register and receiver have not decided this case in accord ance with what they consider the more recent and rigid construction of the land laws, but in all fairness, am positive that their decision will be re versed for the simple reason that from an equitable consideration of the case, Justice has not been done." Don't forget to attend the auction sale held by the Lewistown Commis sion Agency in the vacant building next to Wright Bros.' offices, opposite the post office. The next sales will be held during the ir/jrnings of the three days of the air and also for an hour in the evenings. Hurry when the bell rings and you will get some bargains in clothing and jewelry of all descrip tions. L i doncv to Lend Daily except Sunday STATIONS Lve. 7:30 a.m. 10:30 " Arr. 11:00 p.m. Lve. 11:30 " 12:05 p.m. 12:42 " 1:19 " 2:05 " 3:25 " 4:25 " Arr. 5:30 " e are now prepared to receive applications for ..Ten Year Loans.. ===UPON Impioved Ranch Properly In any amount. Reasonable interest rates and prepayment privileges . . . i WRIGHT BROS. Real Estate. Loans, Abstracts of Title, General Insurance ..... Telephone No. 30. Opposite P. O. LhWiSTOWN, - MONTANA Lewistotfn L Barn TT IT Now under new management. Im portant improvements have made this one of the best barns in the state. An entire outfit of new rigs. Teams safe, sound and reliable. Courteous treatment for all. . . . . GIVE US A TRIAL . . . . I I LI L0COCH & WRIGHT, Managers MONTANA RAILROAD COMPANY Time Card Effective at 12:01 a. m. Sunday, July 23, 1905. Daily except Sunday Arr. Lve, Air. Lve. 3:50 1:30 1:10 12:40 12:05 11:32 10:54 10:20 8:55 8:10 7:00 p.m. Montana Railroad Co., Helena, Montana. THE : Bankof Fergus County Corner Third Avenue and Main Street, Lewistown. Montana CAPITAL. SURPLUS, 9200,000 950,000 Invites correspondence and personal interviews with those contemplating forming banking connections in this section. Receives deposits subject to check. Makes loans on approved security. Interest at the rate of 5 per cent per annum paid on deposits placed for either six or twelve months. Issues Money Orders, payable at all painclpal points. Offers all facilities to patrons, and solicits business. OFFICERS, S. S. HOBSON, President P. E. WRIGHT, Cashier L.W.ELDRIDGE, Vice Pres. AUSTIN W. WARR, Ass't Cashier LUMBER! SHINGLES, SASH; DOORS, MOULD INGS, CEDAR POST, LA H, BRICK, EVERYTHING IN THE BUILDING LINE AT THE LOWEST MARKET PRICES. CALL AT............. The Big Red Shed MONTANA LUMBER CO., Telephone 77 Up-to-Date Job Printing at the Democrat Office.