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perpetrated in the entries of public lands under the homestead, pre-emption and timber
culture statutes and more will and should arise under these laws, as the violating thereof
are notoriously and shamefully frequent."

24. W. C. Perry to R. A. Grossman, Vilas, Colo., November 29, 1887. In another
case Perry emphasized wilful and false testimony to "material matter." Letter to
Charles Fickeissen, Buffalo Park, May 6, 1886. In an undated letter to J. M. Tinney,
Kirwin, Perry included "a dishonest or corrupt motive" as part of his definition of perjury.
In letters to R. G. Cook, U. S. commissioner at Dodge City, April 23, 1886, and to
Thomas J. Richardson, special agent of the General Land Office at Wichita, November 9,
1888, Perry commented upon the difficulty of securing convictions in perjury cases.

25. W. C. Perry to C. W. Reynolds, Chalk Mound, July 9, 1886. Perry to A. D.
Duncan, special agent of the General Land Office at Kirwin, October 20, 1886.

26. W. C. Perry to C. H. Carswell, Coronado, December 7, 1887. Same to J. G.
Allard, special agent of the General Land Office, Oberlin, June 12, 1888.

27. The evidence in a case involving Charles Miller and Gust Mauer of Hays, seemed
Van* lu e 522 *" d had r 6 ? 1 used by the former in iSSl, but it was not discovered until
1885 thus talcing it out of the Statutes." A. D. Gilkerson to Perry, November 10, 1885;
Perry referred to the statute of limitations in letters to Louden and Freeman of Ness City,
February 4, 1887; and to Doctor H. Tant, Medicine Lodge, June 29, 1888.



240 KANSAS HISTORICAL QUARTERLY

of the Interior. 28 Thus a fraud could be committed under the pre-
emption act, the land be patented and sold to an innocent third
party and the whole process go unnoticed and unpunished. 29

The same legal and technical complications that laid heavy handi-
caps upon the entrymen provided the foundation for the profitable
activities of land attorneys, land agents, professional locators and
chronic claim jumpers. It seems clear that these men contributed
in considerable measure to the confusion and instability that were
characteristic of communities during their early years. They made
a practice of buying and selling relinquishments; 30 of hiring men
to make entries in order to prevent legal entrymen from initiating
claims to choice tracts; 31 of loaning money to prove up, 32 and in
some cases of preventing by violence the entering of bona fide
settlers. 33 Instances are on record of one of these agents secur-
ing 12 quarter-sections on two separate occasions; 34 of another pay-
ing individuals $5 for the use of their names in making homestead
entries and retaining the claims until they could be sold to bona fide
entrymen for $25 to $50, 35 and of a third getting control of a local

28. W. C. Perry, to J. E. Anderson, Salina, February 25, 1889. Note in Perry's hand-
writing on letter of June 13, 1887, received by him at Fort Scott from Lovitt and Sturman
of Salina.

29. In a letter to Thomas J. Richardson, special agent of the General Land Office at
Wichita, May 26, 1888, W. C. Perry emphasized the difficulty of canceling an entry that
had reached the final receipt stage and the land in question had passed in good faith to
an innocent third party. Other references to the "innocent purchaser" doctrine are con-
tained in letters from Perry to Clark S. Rowe, special agent of the General Land Office at
Larned, March 20, 1888; to W. F. Galvin, Stockton, December 4, 1888, and to Rowe,
March 16, 1888.

30. A rapid examination of almost any newspaper published during the period under
consideration in the western part of Kansas will confirm this statement.

31. Randolph Burt, Gettysburg, to W. C. Perry, May 3, May 12, and June 2, 1886.
Henry Kern, Palco, to Perry, April 2, 1889. The material relating to the activities of such
large scale operators as J. L. Gandy, J. G. Hiatt and A. M. Brenaman is relevant, but is
much too voluminous to be cited here.

32. Land agents on frequent occasions mentioned "loans to make final proof" as a
specialty. The Lane County Herald, Dighton, April 22, 1886, contained two examples.

33. Allegations to this effect are so numerous in the incoming correspondence of the
United States district attorney as to make listing impracticable. There is some reason to
believe that "Homesteaders' Unions" and "Old Settlers' Protective Associations" were
devices to protect illegal entrymen. W. C. Perry to E. E. Thomas, special agent of the
General Land Office at Salina, July 31, 1886, relative to organized intimidation in Scott
county; Perry to G. M. McElroy of Oberlin, August 27, 1886, concerning a similar organiza-
tion in Cheyenne county; E. R. Cutler, Meade Center, to W. C. Perry, December 20, 1886,
asking for help against mob violence in Meade county; J. Word Carson, Wakeeney, to
Perry, November 22, 1887, calling attention to the situation in Greeley county; Charles P.
Dunaway, Stockton^ January 2, 1888, to Perry asking him to investigate the activities
of the Homesteader's Union in Rooks county. The Hoover case in western Ness county
and the Widow Edsall case in Sherman county produced a voluminous correspondence
with the district attorney's office during the spring and early summer of 1888.

34. The Eye, Oberlin, September 18, and November 20, 1884, referring to the activi-
ties of A. J. Cortell. The Cortell-Zimmermann contest case attracted a great deal of atten-
tion m Ioo7-188o.

35. The Lincoln (Neb.) Journal quoted in the Oberlin Eye, January 28, 1886, describ-
ing the activities of the firm of Wilson, Tacha and Parker. S. F. McKinney wrote to
W. C. Perry from Salina on April 7, 1887, "I . . . am a poor man & have a family
to support & look after and I have got very poor health also & I have been swindled out of
my land & home just by such law pettifoggers & western swindle schemers as this Robert
W. Carter & J. W. Brooks & many others in Ellsworth that stand ready to gobble up a
poor mans hard earned property & lie him out of it." W. Jones to Perry from Conway
Springs, April 30, 1888.



FEDERAL LAND LAWS IN WESTERN KANSAS 241

landoffice by placing beds and cots in front of the door for his
"rustlers" to sleep on so that they could anticipate even the early
rising settlers in making and shifting relinquishments, entries and
contests. 36 In many cases they were the publishers or editors of the
local newspapers and in some they were intimately familiar with
local land office procedures either through previous experience or
current connections. 37 The notion that a settler reached the frontier
and "gazing upon almost endless stretches of rich agricultural land"
made his selection does not fit the facts. More often than not he lo-
cated his claim under the watchful eye of a land locator who may
have located some other person on the same tract at an earlier
date. 38

The activities of land agents and attorneys received special at-
tention from Commissioner W. A. J. Sparks in several of his annual
reports 39 and in the day-to-day correspondence of his office. His
determination to eliminate those who were engaging in dishonest
practices is indicated in a number of letters written to law firms in
Kansas towns. In November, 1885, W. A. Frush, of Garden City,
was debarred from practice before any bureau of the Department
of the Interior for failing to give a satisfactory explanation of a
charge that he had forged the signature of an entryman in con-
nection with the relinquishment of a timber culture entry. 40 During
the same month Sparks was extremely critical of a circular issued
by Milton Brown, also of Garden City, advising union veterans of

36. "Report of the Commissioner of the General Land Office," 1886, in Report of the
Secretary of the Interior, House Ex. Doc. No. 1 (serial no. 2,468), 49 Cong., 2 Sess.
(1886-1887), v. 2, p. 86.

37. C. J. Lamb, editor of the Kirwin Independent, advertised real estate for sale in
the issue for February 3, 1887; R. H. Ballinger, editor of the Larned Chronoscope and
Henry Booth, receiver of the land office in Larned were partners in a real estate firm;
Ed Martin, a loan agent in Oberlin had served as a clerk in the land office at Kirwin ac-
cording to the Kirwin Independent, March 31, 1887. William Don Carlos of Kirwin began
his career as chief clerk in the Kickapoo land office; his son, the junior partner in the
firm, had been a clerk in the General Land Office in Washington, D. C. Ibid., March 10,
1887. H. A. Yonge who became register of the land office at Kirwin in March, 1887, had
been editor of the Beloit Democrat and a member of the firm of Yonge and Scott; Tully
Scott had been appointed register of the Oberlin office at an earlier date. Ibid., March 31,
1887. W. J. A. Montgomery, editor of the Stockton Democrat on March 26, 1886, ran
the following advertisement: "Say If you want a good claim that you can put a pre-
emption, homestead or timber entry on, call at this office. If you want to make your home
here, buy a claim and lay your homestead or timber entry on it and save from 7 to 13
years' taxes." The following land office officials were accused of having had illegal if not
corrupt dealings with land firms: Tully Scott, Oberlin, Oberlin Eye, March 8, 1888; C. A.
Morris, Larned, Larned Weekly Chronoscope, November 25, 1887; B. J. F. Hanna, and
W. C. L. Beard, Wakeeney, Lane County Herald, August 25, and September 1, 1887.

38. The firm of Borton and Spidle of Ness City advertised in the Lane County Herald,
July 17, 1885, "Will locate you. Win a contest for you. Make out your final proof.
Make out filing papers for you. Sell you horses and cattle. Furnish you money to pay
out on your claims. Make a soldier's filing for you, if you cannot come in person, and
win law-suits for you." One partner was a lawyer, the other a locator.

39. The "Report for 1887" is typical. It is contained in Report of the Secretary of the
Interior, House Ex. Doc., No. 1 (serial no. 2,541) 50 Cong., 1 Sess. (1887-1888), v. 1,
pp. 134-136.

40. Sparks to Frush, August 18, September 3, and November 21, 1885 "General
Land Office Correspondence," A, Miscellaneous, pp. 233, 234, 272 and 449, in the National
Archives.



242 KANSAS HISTORICAL QUARTERLY

the Civil War that they were entitled to 160 acres of government
land which they could obtain "without residence on the land" and
informing them that the filing and locating could be accomplished
"without their leaving their eastern homes." In his first letter to
Brown, Commissioner Sparks asserted that "these statements are
false and misleading and . . . can be regarded only as at-
tempts to defraud either the soldier or the government or both/*
In his second letter Sparks declared that the "statements in said
circulars are unwarranted by any provision of the laws and are
calculated to encourage and induce frauds upon the government in
the procurement and promotion of illegal entries and claims. 41 In
a letter to a third Garden City firm Sparks commented that their
circular was a palpable invitation to fraud and that its apparent
purpose was "to deceive soldiers, impose upon their widows and
orphaned children and promote frauds on the government." Critical
reference was made to their requirement of the soldier's discharge
papers, a power of attorney and a fee of ten dollars. 42 In other
letters Sparks asked one firm to explain charges that it had accepted
a fee for filing a contest and then had dismissed the case without
notice to its client; 43 and another one to explain why it had filed a
contest, dismissed it without notice to its client, and then filed a
fictitious contest against the client's entry. 44

It should be apparent that the entryman's problem of adjustment
to his new environment began with his first encounter with the local
land officers and with those residents of the community who sought
to exploit his ignorance for their own profit. It should be added
that some entrymen had the benefit of honest and capable legal
advisers when they became entangled in administrative regulations.
The firm of William Don Carlos and Son, of Kirwin, was held in
high esteem. The editor of The Independent, Kirwin, a critic of
almost every other aspect of land office administration, stated that
this firm was composed of "competent, energetic men, always wide
awake and attentive to the interests of their clients. ... In the
twelve or thirteen years that this firm has been doing business here

41. Sparks to Brown, November 4, and December 12, 1885. Ibid., pp. 411, 412
and 486.

42. Sparks to Bennett and Smith of Garden City, December 23, 1885. Ibid., pp.
12, 13.

43. Sparks to Kimball and Reeves, Garden City, August 10, 1886. Ibid., 499, 500.

44. Sparks to Morris and Morris, Larned, November 17, 1885. Ibid., p. 435. A sum-
mary of the practices of the Garden City firms is contained in the "Report of the Commis-
sioner of the General Land Office," 1886, loc. cit., pp. 85, 86. Larned Weekly Chrono-
scope, November 25, 1887. An earlier instance is described in a letter of Secretary of the
Interior Henry Teller to Commissioner N. C. McFarland, September 26, 1883, in Decisions
of the Department of the Interior Relating to the Public Lands, v. 2, pp. 58-62.



FEDERAL LAND LAWS IN WESTERN KANSAS 243

we have never heard them charged with unfair practice, or wrongful
action toward their clients. " 45

One phase of the operation of the land laws that was particularly
productive of friction, insecurity and uncertainty was the invitation
extended to all comers to contest the entry of any settler upon the
public domain. 46 Entries were subject to contest at any time; and,
if they escaped contest prior to the time that the entryman was
required to make his final proof, the published notices, six of which
were required in pre-emption and commuted homestead entries,
were almost sure to produce a contest. There is some reason to
believe that timber culture entries were particularly vulnerable to
contest. 47 The possibility of encountering a contest must have
operated as frequently to discourage improvement and cultivation
as it did to encourage complete compliance. 48 In effect every tran-
sient in a community and every person who had not exhausted his
rights under the land laws was asked to keep his eye on the entry-
man and advertise alleged noncompliance by filing a contest. In a
sense the right to contest placed a premium upon snooping and
exalted the role of the talebearer. When witnesses in the proof-
taking process were asked questions concerning smoke from the
chimney, chickens around the shack, lights in the windows and the
exact diameter of trees, it seems clear that the land officials expected
that neighbors in a community would see each other as actual or
at least potential defrauders and therefore scrutinize even routine
activities with the vigilance and zeal of a secret police agent. As
commissioner of the General Land Office, W., A. J. Sparks intro-
duced elaborate and detailed forms for the presentation of proof.
The new procedures received some support in the newspapers of
western Kansas, 49 but the preponderance of comment was in opposi-

45. March 10, 1887.

46. The Ness City Times reported a statement of the county attorney that three-fourths
of the contestable claims in the county were already under contest and that in a few more
weeks timber claims would be obtainable only by purchase. Reprinted in the Lane County
Herald, May 1, 1885, together with an invitation to entrymen to come to Lane county for
homesteads and timber claims. About six months later, October 29, 1885, the Herald reported
that timber claims were becoming scarce in Lane county. The Rooks County Record,
Stockton, April 29, 1887, in condemning the frequency of contests said, "There are few
of the farmers in Rooks county whose titles are not open to attack on some petty techni-
cality."

47. O. F. Searl, receiver of the land office in Salina, in discussing the contest case of
Russell C. Harris vs. Anderson Stoops with W. C. Perry on June 21, 1887, stated the usual
grounds for contesting timber claims as failure to plant and cultivate trees and the entering
of land not naturally devoid of timber. Nearly three out of the eight pages of the Lane
County Herald, October 15, 1885, were devoted to land notices which were for the most
part announcements of contests against timber culture entries.

48. The uncertainty involved in obtaining a final patent under the homestead, pre-
emption and timber culture acts was emphasized in a letter written by George Cotton of
La Crosse to W. C. Perry, July 29, 1887.

49. Rooks County Democrat, Stockton, January 13, 1887.



244 KANSAS HISTORICAL QUARTERLY

tion to them. The following critical comment appeared in the col-
umns of the Rooks County Record:

A government is in a big business when it tries to find out what kind of a
crib the baby sleeps in, whether the farmer and his wife recline on wire-woven
springs or ante-diluvian bed cords, or whether the woman of the house bakes
her beans in a stone jar or brass kettle. Sparks is a thousand times more par-
ticular about a homesteader's exact compliance with each infinitessimal iota of
the law than he is with a railroad grant or the stock ranch of an English syndi-
cate. Yet that is the general style of this great business administration, which
constantly strains at gnats and swallows dromedaries by the caravan. After
1888 there will be a new deal and a more just equation of the peoples' rights. 50

The editor of the Kirwin Independent expressed his views in an edi-
torial entitled "Tom Foolery." It was a mixture of general criticism
of the Sparks policies and specific objection to the high costs of mak-
ing proof that resulted:

Commissioner Sparks of the General Land office is a beautiful beast, a red
tape dude, a go-off-half-cocked sort of a man. When he assumed the duties
of his office he also assumed that the people of the west were perjurers,
swindlers and fugitives from justice at large in a Garden of Eden. . . .

It wouldn't be quite so bad if all of this tomfoolery didn't have to be paid
for out of the homesteaders pocket, but this arrant nonsense costs men who,
as a class are poor, several extra dollars, in counties where, as a rule, dollars
are scarce. Take this in connection with the swindle requiring claimants to
advertise their lands, an act passed to benefit newspaper men, and the home-
steader who has to shell out here and there to obstructionists along the road
to a final proof, is not apt to entertain a very high opinion of the simplicity of
a democratic form of government.

As to Sparks we believe that he is honest, but he is the biggest old nuisance
that ever a pioneer community had to depend upon for titles to well earned
land. 51

Just as contemporary reaction to Commissioner Sparks ranged
from one extreme to the other so the contemporary evaluations of
the contest process varied a great deal. Commissioner Sparks and
those who supported his policies seemed to assume that a contested
entry involved deliberate fraud either on the part of the contestee
or the contestant, whereas his critics tended to look upon the right
of contest as an almost automatic inhibitant to fraud. At no point
does the doctrine of simple causation or broad generalization with

50. November 26, 1886.

51. January 6, 1887. The editor elaborated one aspect of his views in the issue for
January 20, when he remarked: "Since Sparks became commissioner of the general land
office he has so ruled and managed the business of the office as to make all the land
fraudulently proved up on, cost honest settlers not less than $25 per acre. He suspicions
dishonesty and so plans that those who are honest shall pay fifteen to twenty-five dollars
costs in making a proof that ought to cost not over five or six dollars." It should be
noted in passing that^the editor has suggested the answer to those who insist that home-
stead land was "free" land, a subsidy from the federal government to the agricultural
interests of the nation.



FEDERAL LAND LAWS IN WESTERN KANSAS 245

respect to the administration of the land laws break down so com-
pletely. Contests were initiated for almost every conceivable rea-
son. Some were the results of poor advice given by land agents
and professional locators; 52 others were encouraged by local land
office men because the fees in such cases constituted a large por-
tion of their remuneration; 53 and still others were deliberate at-
tempts to secure desirable tracts of land. 54 There were friendly
contests to conceal a fraudulent entry until the relinquishment
could be sold to an innocent third party. 55 There were collusive
contests initiated by friends or relatives to bar a legitimate contest
or to "smuggle" a tract of land, that is, keep it from being legally
entered until a son reached his majority or a friend could enter it. 56
The most vicious contests were outright cases of blackmail and were
accompanied by violence or threats of violence. 57 They were com-
menced by professional claim jumpers to force a legal entryman to
fight a contest or pay the contestant to withdraw his suit. 58 Fre-

52. W. J. Calvin to the editor of the Larned Chronoscope, February 19, 1886; Thomas
J. Richardson, special agent of the General Land Office, Wichita, to W. C. Perry, January
4, 1887; E. Sample, Medicine Lodge, to Perry, October 16, 1887; B. W. Dysart, Ansonia,
Ohio, to Perry, October 15, 1888.

53. "Report of the Commissioner of the General Land Office," 1885, loc. cit., p. 42.

54. Mrs. M. E. Warner, Oxford, wrote several letters to J. R. Hallowell urging him
to continue the legal sifting of claims in Pratt county and the canceling of fraudulent
entries so that she might be able to secure one of the canceled entries. Her letter of July 8,

1885, is particularly relevant. C. O. Erwin, Harper, wrote to W. C. Perry on April 11,

1886, accusing several men of making fraudulent proof, asking to be informed of the best
method of procedure in securing one of the claims, and offering Perry a $100 fee for
securing one of the claims for him; M. B. Bailey, Wichita, to Perry, January 12, 1889;
Larned Weekly Chronoscope, September 30, 1887.

55. "Report of the Commissioner of the General Land Office," 1886, loc, cit., pp. 85,
86; ibid., for 1887, pp. 149, 150; D. H. Henkel, U. S. circuit court commissioner at Wa-
keeney, to W. C. Perry, January 25, 1888.

56. There are several cases described in the Decisions of the Department of the Interior
Relating to the Public Lands. Some examples are: R. W. Satterlee vs. C. F. Dibble, v.
2, pp. 307, 308, in which the original Dibble entry was contested by three different rela-
tives; A. Moses vs. J. B. Brown, v. 2, pp. 259, 260, wherein the right to contest was
denied to S. H. Brown, a relative of the plaintiff; and Caroline E. Critchfield vs. W. M.
Pierson, v. 1, pp. 421, 422, which involved a divorce on the grounds of adultery in order
to qualify Mrs. Critchfield as a contestee. Charles Fickheisen, Buffalo Park, to W. C.
Perry, April 29, and May 16, 1886; M. B. Bailey, Wichita, to Perry, January 12, 1889.

57. E. C. Cole, U. S. commissioner at Larned, to W. C. Perry, April 15, 1887; Rooks
County Record, May 20, 1887. The Eye, Oberlin, January 19, 1888, reprinted the fol-
lowing comment from the Atchison Champion: "For a number of years past persons in
the western third of Kansas who have in good faith, entered land as timber claims, have
been annoyed and harassed by a class of irresponsible and mischievous vagabonds who
have made it a business to go prowling around to find a few bushes and saplings on timber
claim entries as a basis of contest, making these few scattering trees an excuse for annoying
and expensive litigation, instituted solely for the purpose of blackmail." On April 9 1889
W. C. Perry wrote to J. M. Barrett, register of deeds at Canton, concerning an unsigned
letter accusing B. A. Dupree and Joe Smalley of instituting contests and then offering to
drop them for $250. An unsigned letter to Perry dated April 11, 1889, quoted the follow-
ing from a telegram from F. G. White of McPherson, "R. A. Deupree and Jack Smalley
are m the business of Swearing out contest papers for the purpose of Black Male fsicl and
then compel parties to By [sic] them off. . . ."

58. W. J. Crumpton in a letter to the Larned Chronoscope, February 19, 1886 em-
phasized the blackmail aspect of many contest cases, but more importantly called atten-
tion to the fact that the effect of the contest procedure was to compel the entryman to pay
far more than the market value for a tract which the law intended him to have in return



Online LibraryKansas State Historical SocietyThe Kansas historical quarterly (Volume 20) → online text (page 28 of 76)