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submitted written testimony of his
witnesses, prepared at his office, with
a proposition to permit the defendant
to cross-examine. The defendant
agreed to this. It was held that such
written testimony should be received.

41. Instructions, 3 L- D. 105;
Dingee v. Dameron, 18 L. D. 577 ;
Austin V. De Groat, 17 L. D. 133.

But failure to sign may be cured
by signing and making oath at a sub-
sequent hearing. Heartley v. Ru-
berson, 11 L. D. 575.

42. Dingee v. Dameron, 18 L. D.
577; Instructions, 3 L. D. I2I.

43. Circular to Registers and Re-
ceivers, 28 L. D. 301.

44. The reasons and extent of
this rule will be found in the In-
structions of Secretary Noble to
Townsite Trustees in Oklahoma, 12
L. D. 186. " It has been brought to
my attention that the provisions of



rule 42, for the guidance of regis-
ters and receivers in taking testimony
in contest cases, which are made a
part of the rules for your observance
in allotting lots on town-sites in
Oklahoma, may delaj^ the progress of
your work by requiring each witness
in the case on trial to await the
transcribing of the stenographer's
notes to sign his testimony before
you can proceed to the consideration
of another case; the rule is, there-
fore, so far as your duties are con-
cerned, modified in all cases or in-
stances you deem fit to omit trans-
cribing testimony until it is required
for use in the case on appeal, or
otherwise. You will, in such cases,
direct the testimony to be written
out, and, as a board, certify that the
evidence so transcribed is the true
and correct transcript thereof as
given by the witnesses upon the trial,
which certificate shall stand in lieu
of the signature of the witnesses,
and the evidence so certified shall be
treated on appeal by the commis-
sioner of the general land office, and
the secretary of the interior and
given the same consideration as
though signed by each witness in ac-
cordance with the provisions of said
rule 42. Any witness may, however,
be detained and required to sign,
whenever the board requires it."

45. O'Connell v. Rankin, 9 h,
D. 209.

Rule 35 provides : " In the discre-
tion of registers and receivers, testi-
mony may be taken near the land in
controversy before a United States
commissioner, or other officer, au-
thorized to administer oaths, at a
time and place to be fixed by them
and stated in the notice of hearing."

Vol. X



440



PUBLIC LANDS.



to be admitted before the department, must be taken in accordance
with its rules.**'

(2.) Rules Governing. — The officer appointed to take the testi-



In the absence of a gross abuse of
discretion, the decisions of the regis-
ters and receivers in these matters
will not be disturbed. Still v. Oakes,
25 L. D. 466.

Abuse of Discretion. — Where
there has been a gross abuse of dis-
cretion, the ruling of the register
will not be sustained. Thus, where
the land is ninety miles from the of-
fice of the register and but three
miles from the place where it is
desired to take the deposition, and
the parties are poverty stricken, it
is error to refuse to order the tak-
ing of a deposition. United States
■27. Lopez. 17 L. D. 321. See also
United States v. Raymond, 4 L.

D. 439-

It is too late to apply to have evi-
dence taken near the land after no-
tice of a hearing has been given. Is-
mond V. Canning, 16 L. D. 360.

It is not necessary to issue a coni-
•mission to the officer who takes the
testimony. McGrade v. Murray, 23
L. D. 140.

The local office cannot direct that
testimony be taken before a com-
missioner in the absence of an ap-
plication therefor. Dorman v. Mc-
Combs, 14 L. D. 700.

Before Whom Testimony May Be
Taken. — The testimony may be
taken before a notary public (Bush-
nell V. Earl, 17 L. D. 4; Tonsfeldt v.
McKeever, 20 L. D. 18; Hall v.
Wade, 6 L. D. 788) ; or before a state
superior judge (Lehman v. Snow, 11
L. D. 539) ; or before a clerk of
court (Doherty v. Robertson, 12 L.
D. 30).

An officer designated by the land
department to take testimony in a
contest case may properly authorize
any other qualified officer to take
such testimony. Durkin v. Lind-
strand, 11 L. D. 418.

Where both parties appear at the
day set for taking testimony, an ob-
jection that the evidence was not
taken before the officer named in the
notice should be overruled, when
the local land officers named the offi-



cer before whom the evidence should
be taken and it was so taken. Dallas
V. Jones, 19 L. D. 125.

Under an order appointing a com-
missioner to take the testimony of
certain witnesses named in the ap-
plication for the order the commis-
sioner is not authorized to take the
testimony of any witness not thus
specified therein. Leimbach v. Lane,
9 L. D. 135.

After submission, a party is not
entitled to have a commission issue
to take further evidence. Snider v.
Wright, 16 L. D. 88.

Registers and receivers cannot re-
quire parties to appear before them
or take supplementary testimony
when they Itave directed the testi-
mony to be taken before some other
officer. Cusaden v. Perley, 3 L. D.
145-

Effect of Failure To Appear at

Hearing Where one of the parties

is in default, and the commissioner
subsequently declines to receive the
testimony on behalf of the said
party, the local office may, on proper
showing, at the final hearing, allow
said party an opportunity to submit
his testimony. Tonsfeldt v. Mc-
Keever, 20 L. D. 18.

An objection that the officer be-
fore whom the testimony was taken
was prejudiced is no excuse for fail-
ure to appear at the hearing. Do-
herty V. Robertson, 12 L. D. 30.

46. ]Mere technical non-compli-
ance with the rules of the depart-
ment will not justify the exclusion
of depositions. Fierce v. McDougal,
II L. D. 183 (failure to endorse
title on envelope) ; Heartley v. Ru-
berson, 11 L. D. 575 (failure to sign
may be cured by subsequent signing
and making oath).

And a technical objection cannot
be raised by one who participated in
the hearing. Fierce v. McDougal, 11
L. D. 183. See also Roots v. Emer-
son, 10 L. D. 169.

Nor for the first time on appeal.
Hall V. Wade, 6 L. D. 788; McCal-
len V. Lerew, 7 L. D. 291 ; Smith v.



Vol. X



PUBLIC LANDS.



441



mony will be governed by the rules applicable to trials before the
register and receiver.'*'

b. Upon Interrogatories. — Depositions upon interrogatories may
be taken under rule 23, in cases similar to those in which deposi-
tions may be taken and used in courts of law.*^ But they cannot
be used in evidence unless the rules of the department are followed. ^'^

c. May Be Used By Either Party. — Depositions by whichever



Smart, 7 L. D. 497 ; Gehman v.
Gulp, 7 L. D. 447.

But failure to observe rules which
are mandatory will operate to ex-
clude the testimony. Thus, where,
instead of being mailed to the reg-
ister and receiver, the testimony was
allowed to remain in the hands of
one of the parties for a considerable
time, it was proper to exclude it.
McKinney v. Dooley, 5 L. D. 362.

Evidence taken before a notary
public not properly designated can
not be considered. Windsor v. Sage,
6 L. D. 440.

47. " The officer designated to
take testimony will be governed by
the rules applicable to trials before
the register and receiver, . . . and
may therefore personally direct the
examination of witnesses when nec-
essary to draw from the witnesses
all the facts within their knowledge
pertinent to the issue raised, and re-
duce the questions and answers to
writing. . Such officer has also the
authority to allow cross-examination
in the absence of cross-interrogator-
ies, which are not required to be
filed." Case of William French, 2
L. D. 235. See also Warner v. Fin-
nerty, 10 L. D. 433.

48. Requisites to the Taking of

Depositions Rule 23. " Testimony

may be taken by deposition in the
following cases :

" I. Where the witness is unable,
from age, infirmity, or sickness, or
shall refuse, to attend the hearing at
the local land office.

"2. Where the witness resides
more than fifty miles from the place
of trial, computing distance by the
usually traveled route.

"3. Where the witness resides
out of, or is about to leave, the state
or territory, or is absent therefrom.

" 4. Where, from any cause, it is
apprehended that the witness may
be unable or will refuse to attend ;



in which case the deposition will be
used only in event that the personal
attendance of the witness cannot be
obtained."

Rule 24. "The party desiring to
take a deposition under Rule 23
must comply with the following
regulations :

" I. He must make affidavit be-
fore the register or receiver, setting
forth one or more of the above-
named causes for taking such depo-
sition, and that the witness is
material.

" 2. He must file with the regis-
ter and receiver the interrogatories
to be propounded to the witness.

" 3. He must state the name and
residence of the witness.

" 4. He miust serve a copy of the
interrogatories on the opposing party,
or his attorney."

For the other rules, see 4 L. D.

39 ff. .

The opposing part}' has the right
to file cross-interrogatories. If he
fails to do so, he loses his right of
cross-examination. Jackson v. Far-
rail, 4 L. D. 377.

A deposition taken for the reason
that the witness cannot be produced
at the trial is not admissible where
the witness is present at the hear-
ing, although he may refuse to tes-
tify. Hartman v. Warren, 19 L.
D. 64.

49. Hartman v. Lea, 3 L. D. 584.

The fact that a commission to take
a deposition was signed by the reg-
ister only is no objection to the use
of the deposition as evidence. Bru-
ner v. ^litchell, 25 L. D. 438.

A deposition should not be or-
dered in the absence of the required
affidavit. McCoy v. Stocking, 16 L.
D. 97-

Failure to Give Notice — A depo-
sition cannot be read in evidence
when due notice has not been served
upon the adverse party. Nor can

Vol. X



442



PUBLIC LANDS.



party taken and transmitted to the department may be used by
either party to the issue.^''

G. Objection to Testimony Cannot be First Raised on
AppEae. — An objection to the admissibihty of evidence comes too
late when raised for the first time on appeal.''^

2. Burden of Proof. — A. Where Entry Is Attacked. — a. By
Government. — In a proceeding against an entry on a special agent's
report, the burden of proof is upon the government. ^-

b. By Individual. — In a contest case between individuals, the
burden is upon the contestant to prove his allegations.^^ In a case



it be read when interrogatories have
not been served. Alanuel v. Miller,
7 L. D. 433.

Rule in Ex Parte Contest Cases

Even in ex parte contest cases, dep-
ositions taken before the day fixed
in the notice cannot be considered.
Instructions, 3 L. D. 195.

Effect of Failure to Object in Time.
An objection to the admissibility
of a deposition comes too late when
raised for the first time on appeal.
Stowell V. Clyatt, 10 L. D. 339.

50. Burton v. Howe, 29 L. D. 581.

51. Benesh v. Kalashek, 22 L. D.
530.

52. Case of John W. Hoffman. 5
L. D. I ; Case of George T. Burns,
4 L. D. 62; Case of Henry C. Put-
nam, 5 L. D. 22 ; United States z'.
Robinson, 5 L. D. 371 ; United States
V. Barbour, 6 L. D. 432; Case of
Perry Bickford, 7 L. D. 374; Case
of John A. McKay, 8 L. D. 526;
Case of Andrew J. Healey, 4 L. D.
80; Case of William W. Wilson, 6
L- D. 395, 398.

The burden of proof is upon the
party attacking the entry. United
States V. Copeland, 5 L. D. 170, 171.

Amount of Proof Required in Case
of Fraud. — Where fraud is alleged,
this burden must be sustained by a
clear preponderance of evidence.
Case of Perry Bickford, 7 L. D. 374.

Effect of Compelling Befendant to

Introduce His Evidence First

While ordinarily the government
should present its case first, a de-
partmental decision will not be dis-
turbed because the defendant was
compelled to introduce his evidence
first, when the government has after-
wards established its case by a pre-
ponderance of evidence. Case of
Albert H. Cornwell, 9 L. D. 340.

Vol. X



As Against Bona Fide Purchaser.

In a proceeding to cancel an entrj'
after transfer to a third party, the
burden of establishing the facts is
upon the government, and it must
be sustained by clear, convincing and
conclusive evidence. Colorado Coal
& Iron Co. V. United States, 123 U.
S. 307 ; Maxwell Land Grant Case,
121 U. S. 325.

53. Ballard v. McKinney, i L. D-
477 ; Moss V. Quincey, 7 L. D. 373 ;
Creswell Mining Co. v. Johnson, S
L. D. 440; Scott V. King, 9 L. D.
299; Tangerman v. Aurora Hill Min,
Co.. 9 L. D. 538; Borchardt v.
Brown, i Copp's Pub. Land Laws, 144.

Thus, a contestant claiming that a
party taking under the timber cul-
ture laws has not done the planting
required thereby has the burden of
proving such fact. Flynn v. Stiles,
I L. D. 129. The burden of proof
is upon one alleging priority of set-
tlement right as against the subsist-
ing entry of another. Willis v. Par-
ker, 8 L. D. 62^.

Effect of Citation to Show Cause
Why an Entry Should Not be Can-
celed. — The fact that these allottees
were called upon to show cause why
their allotments should not be can-
celed in no wise affected their status.
It is the duty of these contestants to
affirmatively show such a state of
facts as will necessitate the cancel-
ing of the allotments already made.
It was not even incumbent upon the
defendants to enter an appearance;
had they not done so it would have
been no less the duty of these con-
testants to present the requisite
showing of superior rights. Case of
Philomme Smith, 24 L. D. 323.
Compare Webb v. Davis, 22 L. D.
113-



PUBLIC LANDS.



443



involving a forfeiture the burden is upon the contestant to prove
his case by clear evidence.^*

c. Character of Land. — A state, claiming as swamp lands sub-
divisions of the public domain not so shown by field notes, has the
burden of proving the actual character of the land.^^ Where the
field notes show the character of the land, the burden is on the
contestant.^*^ And after an adjudication as to the character of the
land, the burden is on the contestant.^"

d. After Non-Compliance With Law Is Shown. — Non-compli-
ance with the law being shown, the burden of proof is thereafter
upon the entryman to show his good faith and satisfactory rea-
sons for his failure to meet the requirements of the law.^^

e. After Final Judgment. — After final judgment of cancelation,
the party asking a new hearing has the burden of showing why
the cancelation should not stand.^^

B. Where There Is No Entry. — In a hearing directed to de-
termine superiority of right as between adverse applicants, where
no entry has been allowed, the burden of proof cannot be said to
rest upon either of the applicants.''"

3. Presumptions. — A. Entry Presumed Valid. — An entry,
once allowed, is presumptively valid, and should be disturbed only
upon the clearest proof of fraud."^

B. Officers Presumed to Have. Performed Their Duty. — It



54. Lawrence v. Phillips, 6 L. D.
140. Williams v. Price, i Copp's
Pub. Land Laws 87 ; Brannan v.
Rose, I Copp's Pub. Land Laws, 243.

It was originally said that the evi-
dence must establish the case be-
yond a doubt. " In a proceeding in-
volving forfeiture, the same strict-
ness of proof is invariably required
as under a penal statute. The whole
burden is on the party alleging want
of compliance, and the acts of aband-
donment or failure to comply with
legal requirements must be affirma-
tively shown." Ewing v. Rickard, i
L. D. 146. But this has been since
overruled ; and it is now necessary
to establish the case only by a clear
preponderance of evidence. Tiberg-
heim v. Spellner, 6 L. D. 483.

Forfeiture of Improvements

To secure a forfeiture of improve-
ments, the contestant must prove his
case by a clear preponderance of evi-
dence. Neff V. Cowhick, 6 L. D. 660.

55. State of Wisconsin v. Wolf, 8
L. D. 555.

56. In a circular issued by com-
missioner Sparks, December 13, 1886,



approved by Secretary Lamar, (5 L-
D. 280), it was provided: "Where
swamp land selections are based upon
the field notes of survey, and the
land is alleged not to have been in
fact swamp and overflowed, and ren-
dered thereby unfit for cultivation at
the date of the swamp land grant, the
burden of proof will be upon the con-
testant or adverse claimant under
the public land laws."

57. Majors v. Rinda, 24 L. D. 277.

58. Donly v. Spring, 4 L. D. 54:?.
The burden of proving a special de-
fense is upon the defendant.

Thus, where it is shown that part
of the land has not been cultivated
as required b\' law, the burden is
upon the entryman to explain his
failure to cultivate. Anderson v.
Hamilton, 5 L. D. 363.

59. Weber v. Shappell, i L. D. 76.

60. Dever v. Ayars, 28 L. D. 169.

The matter in dispute must be de-
cided upon the preponderance of the
evidence. Central Pac. R. Co. V.
Shepherd. 9 L. D. 213.

61. Arnold v. Langley, i L. D.
439; Case of Lewis F. Spink, 4 L.

Vol. X



444



PUBLIC LANDS.



will generally be presumed that public officers upon whom the law
h^s imposed certain duties have performed them properly.*'"

C. Payment of Fees. — Payment of land office fees will in gen-
eral be presumed.''^

D. Fraud. — Fraud in making an entry may be presumed from
a relinquishment within a short time.*^* An attempted sale of land
embraced in a homestead entry raises a presumption of bad faith."^

4. Admissibility. — A. Evidence Is Confined to Issues. — In
contests before the land department, evidence should be confined
to the allegations, as in trials at law.^''

B. Best Evidence. — The best evidence principle applies to pro-
ceedings before the land department.*'^

C. Records. — a. In General. — The records of the land office
are competent evidence of the facts there set forth.**^



D. 292; Case of Gilbert E. Read, 5
L,. D. 313; United States v. 0"Dowd,
II L. D. 176.

62. Case of F. P. Harrison, 2 L.
D. '/6y. In this case the court said :
" It is an elementary principle of law
that when any judicial or official
act is shown to have been performed
in a substantially regular manner, it
is presumable, and it may be gener-
ally assumed, that the formal pre-
requisites have been complied with."

Thus, it will be presumed that of-
ficers to whom the government has
intrusted the dutj' of determining
when the necessity for a survey ex-
ists, and of supervising such survey,
have properly discharged their duties.
Case of Pierre Dolet, 2 L. D. 463.

63. Case of Eugene Q. Powlison,
2 L. D. 323. But see Central Pac.
R. Co. V. Orr, 2 L. D. 525. In this
case the statute provided : " Nor shall
the provisions of this act be available
to any person or persons who shall
fail to make proof and payment"
within a certain time. The records
did not show payment, and it was
therefore assumed that it had not
been made.

64. Thus, in the case of Allen B.
Lemmon, 2 L. D. 92, the entryman,
upon making his entry, made oath
" that it was for the cultivation of
timber and for his own exclusive use
and benefit, and that he made the ap-
plication in good faith, and not for
the purpose of speculation, or direct-
ly or indirectly for the use or bene-
fit of any other person or persons
whomsoever." A little more than a
month thereafter he relinquished his

Vol. X



entry for a valuable consideration.
This was held to raise a presumption
that the entry was fraudulent in its
inception.

65. Guyton v. Prince, 2 L. D. 143.

66. Shull V. McCormick, i L. D.
470; ^liller V. Worner, 27 L. D. 247.

Thus, in Schelter v. Off, i L. D.
113, it was alleged that land had
been abandoned and that it was not
cultivated. It was held that testi-
mony as to the character of the land
was immaterial.

Evidence showing want of culti-
vation is not admissible under a
charge of failure to plant. Leaven-
worth V. Bibbey, 4 L. D. 299.

Under a charge of failure to com-
ply with the law the third year of
the entry, evidence is not admissible
as to improper preparation of the
soil during the preceding years.
Nelson v. Phelps, 5 L. D. 329.

Evidence tending to show that the
entry was made and held for specu-
lative purposes is not admissible
under a general charge of non-com-
pliance with law in the matter of cul-
tivation and planting. Cropper v.
Hoverson, 13 L. D. 90.

It is competent for the defendant
to introduce evidence relative to the
exact allegations of the complaint.
The contestant is bound by his alle-
gations." Prince v. Wadsworth, 5
L. D. 299.

67. St. Paul M. & M. R. Co. v.
jNIorrison, 4 L. D. 509.

68. The character of such evi-
dence is well set forth by Commis-
sioner McFarland, in the case of An-
tonio D. Martinez, i L,. D. 18, quot-



PUBLIC LANDS.



445



b. Judicial Notice. — The officers of the department will take ju-
dicial notice of facts disclosed by their records.''^

c. Records in Other Cases. — Where facts appear of record in
the land office although in another matter, an applicant to purchase
will not be required to furnish additional evidence ;'*^ but in a con-
test case, such records will not be admitted against those not rep-
resented in the prior proceeding.^^

d. Certificate as to Contents. — A certificate that a fact appears
of record is not admissible before the officers of the department."^



ing from McGarrahan v. New Idria
M. Co. " The record of this patent
is evidence of the grant, but not the
grant itself. It is evidence of equ'il
dignity with the patent, because, hlce
the patent, it shows that a patent
containing the grant liad been issued.
The record called for by the act of
Congress is made by copying the
patent to be issued into a book kept
for that purpose. The effect of the
record, therefore, is to show that an
instrument such as is there copied
has actually been prepared for issue
from the general land office. If the
instrument as recorded is sufficient
on its face to pass title, it is pre-
sumed that the grant has actually
been made, but if it is not sufficient
no such presumption arises. The pub-
lic records of the executive depart-
ments of the government are not like
those kept pursuant to ordinary reg-
istration laws intended for notice,
but for the preservation of the evi-
dence of the transactions of the de-
partment."

See also Kime v. Smith, 19 L,.
D. 207.

69. In Leightner v. Hodges, 3 L.
D. 193, Commissioner McFarland
said : " All cases involve the
records of the local office. In your
examination of any case, whether the
oral testimony is taken before you or
before another authorized officer, it
is of course a material part of your
duty to consult your records, and you
must make up your judgment upon
the facts as shown by the record,
together with facts brought out in
the testimony taken for the purposes
of the hearing. You are not ex-
pected, nor would you be authorized
to ignore facts of record, because tes-
timony is taken before another of-
ficer."

Improper Record. _ It is not com-



petent to take cognizance of a record
that constructively never existed, as
where a contest has been declared
nil. Wilson v. French, 2 L. D. 286.
Effect of Judicial Notice upon

Admissibility of Records Although

the officers of the land department
will take judicial notice of their rec-
ords, it is still competent for a part}'
to introduce such records in evidence
as a part of his case, if he sees fit.
Kime V. Smith, 19 L. D. 207.

70. Thus, in the case of the Alta
Mills Site, 9 L. D. 48, proof of the
filing of articles of incorporation of
the applicant was made under a pat-
ented entry and appeared of record
in the General Land Office. It was
held unnecessary to prove incorpora-
tion in another application by the
company. In the case of George
Leinen, 8 L. D. 233, it was held un-
necessary to make further proof of
a fact proved in the same matter,
but prematurely. But see Croughan
V. Smith, 4 L. D. 413.

71. Case of Orlando Blackman, 7
L. D. 496. In the latter case the
secretary of the interior said that
the right of the contestant should not
be affected by the testimony offered
in another case to which he was not
a party and had not opportunity to
reply. See also Bright v. Elkhorn
Mining Co., 9 L. D. 503.

72. This is an application to pro-
ceedings in the land department of
the general rule that a certificate
that a certain fact appears of record
is not sufficient. The officer must
certify a transcript of the entire
record relating to the matter. St.



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