LAY V. HUNTER.

In view of the evidence, the land in question is held to be non-desert in character. The evidence further shows that no effort to reclaim or irrigate the land was made prior to initiation of contest.

Acting Commissioner Harrison to register and receiver, Bozeman, Mont.,

June 7, 1883.

GENTLEMEN: In the matter of the contested case of Lay v. Hunter, involving the question of the validity of desert-land entry No. 15, made at your office by Irving Hunter, October 16, 1878, upon Sec. 6, T. 3

S., R. 5 E.

The record shows that by letter of April 3, 1882, you transmitted the application of Nathan C. Lay to contest the validity of said entry upon the ground that the lands embraced therein are not desert in character, and the applicant had failed to comply with the law in regard to reclamation. A hearing was accordingly ordered by this office by letter

dated July 7, 1882.

Under date of December 14, 1882, you transmitted to this office the testimony and papers submitted upon such hearing, together with your joint opinion thereon. You state in your opinion, in substance, that You are unable to determine whether the land is desert or not in view

of the fact that no

attempt has been made to raise crops thereon. You

state, however, that if you were to decide that question by applying

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the testimony in relation to other lands in the vicinity of that in question you should decide that the land covered by said desert entry is not des ert land.

Upon the question of reclamation of the land you state that, "the case upon this point must be decided against him, reference being made, however, to the fact that November 5, 1881, he applied for an extension of time in which to reclaim the land."

You finally "decide and recommend that said contest be dismissed, and that further action in relation to said entry be suspended, in view of the fact that Congress has been asked to amend the desert-land act by granting additional time for reclaiming lands entered under said act.

The contestant, Nathan C. Lay, having appealed from your decision, the case comes now before this office for consideration on such appeal.

It appears that agricultural crops have been raised without irrigation upon land of the same general character and near that in question, and it appears that the land embraced in said desert entry produces grass suitable for hay.

Under date of July 3, 1882, the honorable Secretary of the Interior held as follows in the case of Wood v. Meyer:

While irrigation improves the crops on these lands, it is not essential to their production; and if any agricultural crop will grow thereon, although of an inferior quality, it is not subject to entry as desert land.

I am of the opinion that the testimony in this case establishes the nondesert character of the land in question.

But were the land desert in character, the evidence shows an entire want of good faith by Hunter in the matter of reclamation of the same. The hearing was had Angust 14, 1882, nearly four years after the entry was made, and the testimony shows that the land had not then been reclaimed by irrigation.

The period allowed by law for reclaiming said land expired October 16, 1881. On the 5th day of November, 1881, Mr. Hunter applied to have the time extended one year; but the testimony shows that nearly all the work of constructing ditches was performed after Mr. Lay filed his application to contest the validity of said entry.

In view of the foregoing, said desert entry is held for cancellation. Advise Mr. Hunter of this decision, and that sixty days are allowed for appeal.

IRRIGATION-HUSBANDRY-DEFINITION OF "CROP".

BABCOCK v. WATSON ET AL.

Lands that one year with another for a series of years will not, without irrigation, make a fair return to the ordinarily skillful and industrious husbandman for the seed and toil expended in endeavoring to secure a crop, are desert lands within the law.

The term "crop" means such an agricultural production as would be a fair reward for the expense of producing it.

Acting Secretary Joslyn to Commissioner McFarland, August 7, 1883.

SIR: I have examined the case of Chester Babcock et al. v. David Watson, Samuel N. Watson, and George Thompson, involving the valid ity of the following desert-land entries, to wit: Susanville,

Cal., on appeal from your decision of January 13, 1881, maintaining the desert character of said lands.

These lands are situated in Lassen County, State aforesaid. The entries are contested upon the ground that the lands embraced therein are not desert in character, and no other question is presented by the

case.

The testimony submitted is voluminous and conflicting, and in some respects difficult to reconcile.

After the taking of testimony had closed, and at the time of filing counsel's brief for contestant, packages of grass and grain were presented at the local office, accompanied by affidavits alleging that such grass and grain grew upon the land in controversy. Such testimony was not considered at the local office, but was transmitted with the record. The opposite party had no opportunity for cross-examination, or for putting in rebutting proofs; and objection being made to receiv ing the testimony, it cannot properly be considered. I have, however, considered it in connection with the contestant's suggestion that a further hearing should be ordered in the case.

The tracts are situated in a section of country largely composed of desert lands.

The proofs show that the lands in controversy are mostly sage-brush lands. The testimony is made up very largely of the opinions of the witnesses as to whether the tracts in controversy will "without irrigation produce some agricultural crop." These opinions are based upon an examination of the soil in respect to its composition and moisture, and observation and experience as to raising crops upon lands of similar character. This has led to considerable discussion as to the amount of the "agricultural crop," which within the meaning of the statute the land was capable of producing "without irrigation," in order to save it from being classed as desert land.

Section second of the desert-land act provides :

That all lands, exclusive of timber and mineral lands, which will not

without irrigation produce some agricultural crop, shall be deemed desert lands within the meaning of this act.

Reference is made by contestants' counsel to my decision of July 3, 1882, in the case of Wood v. Myer, in which it was said that "if any agricultural crop will grow thereon, although of an inferior quality, it is not subject to entry as desert land." And from this it is argued that "It is not a question of quantity or of quality, but of capability to produce at all."

Neither the statute nor the decision cited are susceptible of so narrow a construction.

It is undoubtedly true, as claimed, that a large part of the agricultural lands situated in the States and Territories named in the act would be greatly improved, and more abundant crops obtained by means of irrigation; but without irrigation such lands are not therefore desert. It is not necessary, however, that the lands without irrigation should be so sterile and barren that they will not "produce at all." If the lands, one year with another for a series of years, will not without irrigation make a fair return to the careful, ordinarily skillful, and industrious husbandman for the seed and toil expended in endeavoring to obtain a crop, the land may justly be regarded as desert, within the intent of the statute. The crop may be an inferior one, but the land should return a fair compensation for the labor and money expended upon the crop. If such a return cannot be had, the lands would, after trial or without, remain unoccupied and desert. Those lands that will not pay for cultivation or use without irrigation are within the scope of the act. The expression "some agricultural crop" does not refer solely to the amount of the crop: it also refers to kind. It may be grass, it may be wheat or barley, or some other crop to which the country and climate in the region of the land are generally adapted. If it will produce some crop of a kind and an amount sufficient to make the cultivation reasonably remunerative, it is not desert.

Force must be given to the term "crop" used in the act. It has a definite meaning; and in the sense in which it is used, it means such an agricultural production as would be a fair reward for the expense of producing it.

The Government grants these desert lands at the usual price, $1.25 per acre. It grants them in amounts larger than under the pre-emption and homestead laws, because the lesser amount would not justify the outlay of capital necessary to bring water to them. The soil of these lands is presumed to be good, from the price placed upon them by the Government. Such a soil might in some seasons produce even a fair crop without irrigation, but in most seasons would produce a growth that, considered as a crop, would afford no adequate compensation for the expense bestowed upon it.

When the testimony shows, as in this case, that the class of land is such that without irrigation it fails year after year to return even the

seed, and the growth of grain sown is so poor as to be cut for hay, the land may properly be regarded as desert within the statute.

This testimony in the case is corroborated by the physical character of the country. In 1875 (before the passage of the present and more general act), Congress passed a special act, relating only to Lassen County, providing for the sale of desert lands in that county (18 Stat., 479). Lassen County lies within the section of county designated by Powell as the "arid region." "In all this region the mean annual rainfall is insufficient for agriculture." (Powell's Lands in the Arid Region, page 5.)

As near as I am able to ascertain from an examination of the tables and charts accompanying Powell's report, the mean annual rainfall in that section does not exceed 20 inches. "The limit of successful agriculture without irrigation has been set at 20 inches; that the extent of the arid region should by no means be exaggerated, but at 20 inches, agriculture will not be uniformly successful from season to season. Many droughts will occur; many seasons in a long series will be fruitless; and it may be doubted whether on the whole agricult ure will prove remunerative." (Ib., page 3.)

Even with this amount of rain, much depends upon whether the rainfall is evenly distributed. If it is unevenly distributed, so that a "rainy season" is produced, the question whether agriculture will be successful without irrigation then depends upon the time of the "rainy season," and the amount of rainfall during that season. (Ib., page 2.)

The good faith of these claimants is shown by the large amount expended by them in building a dam, and constructing ditches for the purpose of irrigating the lands. One of such ditches is 6 miles in length, and the amount expended by one of the claimants is $1,500, and considerable sums by the others. I am satisfied from the testimony that the lands are desert in character within the meaning of the act under a fair interpretation, and that the lands cannot be successfully cultivated without irrigation.

The cases have been long pending, and the controversy in relation to them should be ended; and I must decline to allow any further hearing therein.

The testimony seems to have been carefully considered by the register and receiver, and by your office, and the same result was reached in both cases as to the desert character of these lands. I concur in the conclusion thus reached, and affirm your decision.