January 4, 2024

Timber Culture Act Loopholes

The Timber Culture Act of 1873 allowed persons to claim 160 acres of government land if they promised to plant and raise trees. This Act was a terrific way for homesteaders to enlarge their land holdings. But, there were requirements.

Planting Trees

In the first year of a tree claim, 5 acres of grassland were to be plowed under. The next year, the initial 5 acres were to be cultivated in preparation for tree-planting and another five acres turned under. In the third year, the first 5 acres were planted with trees and the second 5 acres were cultivated. The fourth year, trees were planted on the second 5 acres (making a total of 10 acres planted with trees). History Nebraska estimates that a claimant was therefore required to plant no less than 27,000 trees.¹

Later the Act was modified to reduce the number of trees required. After 8 years, the tree claim could be “proved,” as long as the specified number of trees per acres survived.

Did Franklin Hesse follow this path of planting trees? Was he able to find a way around the stipulations of the Timber Culture Act?

Legal Loopholes

There were ways of obtaining the land which were legal, but also exploited the Timber Culture Act’s rules. The Act did not require the claimant to reside on the land, neither did they need to build any structures. Some historians believe that ranch workers filed for tree claims which were used by the ranch owner for grazing cattle.²

Farmers could file a claim and do no work to add trees to the land. During the 5-year time period, they could raise crops without purchaeing in land.³ Timber culture lands were claimed by successive family members, which allowed that family to continue using the land for an extended period without paying taxes.⁴

Tract Book Chronology

Dakota Territory, LaMoure County, Tract Book 52
Township 134 (Grand Rapids), Section 34, Range 61⁵

William H. Ellsworth, 1880
Franklin Hesse, 1881
Amelia Apitz, 1887
John Freyberger, 1890

Last week, we looked at William H. Ellsworth and his connection to Franklin Hesse. It would seem that Hesse was either acquainted with Ellsworth or had some inside information, because Hesse claimed timber and homestead land on the day after Ellsworth cancelled.

2. Hesse Timber Claim

Franklin Hesse (age 19) claimed 320 acres of LaMoure County land on June 3, 1881. Half of those acres were his homestead and half were his tree claim.

Six years later, Hesse relinquished his tree claim. On this form,⁶ he does not give a reason for his cancellation. One assumes that in those 6 years Hesse had not made enough progress planting trees on the land.

Franklin Hesse’s signature was witnessed by H. [Herman] E. Sox and C. [Clarence] W. Davis, both of LaMoure; Sox was a land dealer and Davis an attorney.

3. Amelia Apitz Timber Claim

Two weeks after Franklin Hesse cancels his Timber Culture, Amelia Apitz claimed the land⁷ (her entry is highlighted #3 in the above Tract Book).

Amelia Apitz (1864-1948) was born in Neenah, Wisconsin. Her father was a cooper (barrel-maker), as was Franklin Hesse’s guardian, Theodore Brown. In 1887, Amelia was still single. Is it possible that she they knew each other from Neenah and she agreed to help Franklin Hesse with this timber land?

Miss Apitz attests that she is “now living upon this same Section” and her “Post Office address is LaMoure, LaMoure Co. D.T.”

Also see the hand-written note in the left margin: this application was transmitted by H. E. Sox, the same man that witnessed Franklin Hesse’s signature on October 26th.

This affidavit of Amelia Apitz was originally dated October 26, 1887 and was changed to November 9th by Herman E. Sox. In this affidavit, Miss Apitz attested that she was “a single woman over 21 years of age and a native born citizen of the U.S.”

On November 19, 1890, Amelia Apitz cancels her Timber Culture. As with Hesse’s cancellation, no rationale is given. On this form we also see the familiar witnesses: Herman E. Sox and C. W. Davis .

4. John Freyberger Timber Claim

January 19, 1888, John Freyberger married Carrie Hesse (sister of Franklin Hesse).⁸ May 23, 1889, John Freyberger claimed 160 acres as his “Homestead Farm” in LaMoure County.⁹ On November 19, 1890, he began the application for the Timber Culture that had been Amelia Apitz’s/Franklin Hesse’s tree claim.¹⁰

Affidavit signed by John Freyberger November 19, 1890

On his Timber Culture Application, John Freyberber states: “I base my affidavit hereto attached upon personal knowledge of the tract of land I desire to enter. I am now living in the town of LaMoure N.D. my P.O. is LaMoure, LaMoure Co N.D.”

As noted with the Apitz Application, this form was also transmitted by H. E. Sox.

Freyberger Proves the Timber Claim in

Part of the “proving” process required witnesses to attest to the manner of of tree cultivation and the number of trees surviving on the land. One of John Freyberger’s witnesses was his brother-in-law Franklin Hesse.

Details of the Tree Claim

In his sworn witness statement, Frank Hesse, 38 years old, made several assertions. He stated that he was acquainted with John Freyberger since 1889 [1889: Freyberger married Frank’s sister, Carrie Hesse].

As for trees, Hesse stated in his answer to Question 5 that there was no “natural” timber on the claim when Freyberger’s filing was made. If trees had been planted by Hesse during the years of his own Timber Culture claim, they would not be considered “natural” timber.

Hesse gives this timeline:

1890: “There was 100 acres broken on entry when claimant filed.” [Was this work done by Hesse?]
In May 1891, claimant planted 5 acres on this entry with box elder tree seed in rows 4 by 4 feet apart each way.
1892 [the second year] claimant broke 25 acres and planted 5 acres of box elder seeds.
November 1893 & 1894 claimant planted the same 10 acres with box elder tree seed in the same manner as in 1892. “The entire entry is now in cultivation. I know this from personal observation.” [So, all 160 acres are in cultivation for crops or for trees. I wonder if Hesse was planting/harvesting seed crops on these acres.]
1895 planted 10 acres box elder tree seed
1896 planted 3 acres cottonwood
1897-1899 cultivated 10 acres trees. “There are 1000 living and thrifty tress per acre or 10,000 trees in all.”

When asked about source of his knowledge, Hesse responded,

“I know this by personal observation and by having helped claimant do the work on entry.”
(emphasis not in original)

Question 14

Have you any interest, direct or indirect, in this claim?

“No”

Frank Hesse did have an interest in this claim. When he answered Question 11, he revealed that he had helped do work on the entry [land]. The 1913 plat map shows that he eventually owned the 160 acres of this tree claim.

Did his lawyer tell him to answer this way to slide through a loophole?

Next week, I’ll conclude the story of this LaMoure County Timber Culture claim.

SOURCES

1
History Nebraska. Flashback Friday: Timber Culture Act of 1873. https://history.nebraska.gov/flashback-friday-timber-culture-act-of-1873/. Accessed January 1, 2024.
2
Britannica Kids. Timber Culture Act of 1873. https://kids.britannica.com/students/article/Timber-Culture-Act-of-1873/632078#:~:text=Under%20the%20Timber%20Culture%20Act,used%20it%20for%20cattle%20grazing. Accessed January 1, 2024.
3
State Historical Society of North Dakota. North Dakota Studies, grade 8, unit 3, lesson 2, topic 4, section 3: Timber Culture Act. https://www.ndstudies.gov/gr8/content/unit-iii-waves-development-1861-1920/lesson-2-making-living/topic-4-federal-legislation/section-3-timber-culture-act. Accessed January 1, 2024.
4
Goetz, Kathryn. Land for trees: The Timber Culture Act of 1873. MNopedia, 2013, 2017. https://en.wikipedia.org/wiki/Timber_Culture_Act. Accessed January 1, 2024.
5
Bureau of Land Improvement. Tract Book 52 (Dakota Territory). United States Bureau of Land Management, Washington, D.C. FamilySearch Database with images (accessed October 19, 2023). Highlighted numbers added by author.
6
Timber Culture (cancelled) file No. 5692, Franklin Hesse, June 3, 1881, Fargo, North Dakota Land Office; Records of the Bureau of Land Management, Record Group 49; National Archives Building, Washington, D.C. Relinquishment of Land Entry Form 258, dated October 26, 1887.
7
Timber Culture (cancelled) file No. 12053, Amelia Apitz, November 10, 1887, Fargo, North Dakota Land Office; Records of the Bureau of Land Management, Record Group 49; National Archives Building, Washington, D.C.
8
“New York, New York City Marriage Records, 1829-1938”, FamilySearch (https://www.familysearch.org/ark:/61903/1:1:Q2CF-1HXW : Sun Dec 03 02:36:35 UTC 2023), Entry for John Freyberger and Carrie Hesse, 19 Jan 1888.
9
Homestead Final Certificate No. 7745, John Freyberger, March 27, 1895, Fargo, North Dakota Land Office; Records of the Bureau of Land Management, Record Group 49; National Archives Building, Washington, D.C.
10
Timber Culture Final Certificate No. 2324, John Freyberger, May 25, 1900, Fargo, North Dakota Land Office; Records of the Bureau of Land Management, Record Group 49; National Archives Building, Washington, D.C.

Author: Karrie Blees

Filed Under: Hesse