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DECISIONS
OF
THE DEPARTMENT OF THE INTERIOR
AND
GENERAL LAND OFFICE
IN
CASES RELATING TO THE PUBLIC LANDS
Fbom January, 1897, to June, 1897.
VOLtJMK XXIV.
Edited by S. V. PROUDFIT.
WASHINGTON :
GOVERNMENT PRINTING OFFICE.
1897.
LIBRARY OF THE
LELAND STANFORD JR. UmERSITY.
Department of the Interior,
Washington, D. (7.
This publication is held for sale by the Department at cost price, as follows :
Volnmel, from July, 1881, to June, 1883 $1.05
Volume 2, from July, 1883, to June, 1884 1.15
Volume 3, from July, 1884, to June, 1885 1.07
Volume 4, from July, 1885, to June, 1886 1.15
Volume 5, from July, 1886, to June, 1887 1.05
Volume 6, from July, 1887, to June, 1888 1.45
Volume?, from July, 1888, to December, 1888 1.10
Volume 8, from January, 1889, to June, 1889 1.16
Volume 9, from July, 1889, to December, 1889 1.15
Volume 10, f^om January, 1890, to June, 1890 1. 15
Volume 11, from July, 1890, to December, 1890 1.10
Volume 12, from January, 1891, to June, 1891 1 1.15
Volume 13, from July, 1891, to December, 1891 1.15
Volume 14, from January, 1892, to June, 1892 1. 15
Volume 15, from July, 1892, to December, 1892 1.05
Volume 16, from January, 1893, to June, 1893 1.05
Volume 17, from JiUy, 1893, to December, 1893 1.05
Volume 18, from January, 1894, to June, 1894 1. 05
Volume 19, from July, 1894, to December, 1894 1.05
Volume 20, from January, 1895, to June, 1895 , 1.05
Volume 21, from July, 1895, to December, 1895 '.1.05
Volume 22, from January, 1896, to June, 1896 1.15
Volume 23, from July, 1896, to December, 1896 1.05
Volume 24, from January, 1897, to June, 1897 1. 05
Digest, volumes 1 to 22, inclusive 1. 25
Correspondence relating to the above publications, and all remittances (which
must be by money order), should be addressed to the Secretary of the Interior^
Washington, D. C.
Ul
Office of the Assistant Attorney-Generai^
The decisions of the Secretary of the Interior relating to public lands are prepared
in the office of the Assistant Attorney-General for the Interior Department, under
the supervision of that officer, and submitted to the Secretary for his adoption.
ATTORNEYS IN THE OFFICE OF THE ASSISTANT ATTOJiNETGENETi A L DURING
TIME COVERED BT THIS REPORT.
Willis Van Devanter/ AaHstant Altamey-General.
Vivian Brent.
EVERARD BlERBR, Jr.'
W. M. Byrd.
F. L. Campbell.
P. W. Clements.
P. J. COSTON.
W. A. Edwards.3
Arthur English.
G. B. Gardner.
C. J. Groseclose.
B. W. Hunter.
John Lyon.
J. L. McCreery.
C. W. PiNKNEY.
W. C. Pollock.
S. V. Proudfit.
A. B. Pugh.
G. C. Ross.
£. M. RUCKBR.
L. R. Smith.
C. J. Wellborn.
W. M. Wilson.
> Appointed March 23, 1897, vioe T. H. Lionberger, resigned.
^ On detail from the Board of Pension Appeals.
* On detail from the General Land Office.
TABIiE OF CASES REPORTED.
Adams r. George 424
Addenda Mining Co., Cain etal. v. 18
Adkinson, Francis (on review) . . 3d5
Amick 7. Carroll 558
Anderson V. Wing 409
Angell, John C 575
Arnold, Benjamin 312
* Arnold, Simon B 486
Atchinson, William A 561
Avery et aZ., Coeby eial,v 565
Ayers, Northern Pacific R. R.
Co. V 40
Basin City 405
Bateman r. Carroll 144
Beharv. Sweet 158
Beleele, Dyche « 494
Belknap, Harris V 88
Bellamy ir. Cos 181,452
Bender^ Doyle V 535
Benson r. State of Idaho 272,416
Berg ei al,, Hastings and Dakota
Ry. Co 146
Biekford et aL, Hershey v. (On
review) 496
Black Tomahawk v. Waldron .... 145
Bohanr. Brest 16
Bonnett v. Jones (on review) .... 242
Bradenr.Shaw 801
Bradford el al, v. Doty 32
Broadwell, Gilmore V 482
Brooks, Kirk 9 448
BrouBsean, United States v 454
Brown v. Northern Pacific R. R.
Co 370
Bmmmet t v. McCordia To wnsite . 468
Backley V. Mnrphy 352
Ballard 9. Prescott 402
Bnller, Guillory v 209
BargesB, Allen L 11
Bame^ John W 443
Bntlerv. Davis 60
Batler r. Robinson 385
Byers, Carney V 38
P»g«.
Cain et al, v. Addenda Mining Co . 18
Caldwell v. Gold Bar Mining Co. 258
California Mortgage Loan and
Trustee 246
California and Oregon Land Co.,
Goodrich v 119
California, State of, Holcomb v. . 26
California, State of, Rice v 14
California, State of, Quigley v . . . 507
California, State of, v, Wright.. . 54
California, State of, etal, r.tJnited
States e^aZ 68
Callicotte r. (Jeer 135,399
CaribouLode 488
Carlisle, Francis P 581
Carney v.Byers 88
Carroll, Amick V 558
Carroll, Bateman V 144
Carter V. Davidson 288
Carryl,F.M 415
Central Alaska Company 545
Chamberlain, City of r. King eial. 526
Christian, Penwell v, (on review) 835
CityofGnthrie 366
Clark, Riley G 504
Clark V. Mansfield 343
Clark r. Renfro ef al 61
Clanssen, Patton V 406
Clayton, Walker 17 79
Cliff, Hiner 432
Coffin V. Newoomb 360
Coffman et at., Northern Pacific
R.R.C0. V 280
Colby e< al,, Ullni; 311
Colcord, Hodges et al, v 221,472
Collettv. Northern Pacific R. R.
Co 180
Cook V, Taylor 200
Corry, John R. et aZ 305
Cosby et al. v, Avery «< al. ..... . 565
Countryman, Gourley v, (on re-
view) 49,342
Cowleso.Huff etal 81
Cox, Bellamy v 181,452
vn
vni
TABLE OF CASES REPORTED.
Page.
Crane, Spnrlock et al. v 570
Crocker, Oregon and California
R.R.CO. r 4
Cromwell, Mason r 248
Comutt r. Lawrence 428
Davidson, Carter r 288
Davis, Butler v 60
Davis, OdetttJ 153
Dobbins et al., Pratsch etal.v ... 426
Doe, George H 385
Donahne, Meal v 155
Dom r. EUingson 163
Doty, Bradford et al. r 32
Doty, Popp t: 350
Doyle V. Bender 535
Dudley, Lucas r 310
Dyche r. Beleele 494
Eastern Oregon Land Company. 332
Eimstad r. Northern Pacific R.
R. Co 230
Ellingson, Dorn r 163
Eureka and Excelsior Consoli-
dated Gold Mining Co 512
Ewart, Taylor el aZ. r 499
Farr, Joseph 1
Ferreira, Francisco 205
Ferst r. Solberg 376
Fieberger, Northern Pacific R. R.
Co. V 375
Fisher, George W 480
Florida, State of 147, 176
Florida Railway and Navigation
Co. r.Hawley 245
Foote V. McMillan (on review) .. 46
Fort Cameron 269
Foster, Thomas 159
Foster,T.J.e<a/ 66
Foster et ah, Roscoe eiahv 436
Frazier e« flZ. tj. Taylor 358
Frost, Edwin F.elflZ 228,525
Gass,Talleyr 45
Geer, Callicotte r 135,399
George, Adams V 424
Gibbs, Vincent V 383
Gilmore v. Broad well 482
Ginder, Henline v 476
Gladys A. Mining Co. t*. Gross. .. 349
Glover et al. v. Swarts (on re-
view) 447
Gold Bar Mining Co., Caldwellr. 25K
Goodsell, Mackall et al. v. ...... 553
Page.
Goodrich r. California and Ore-
gon Land Co 119
Gorder v. St. Paul, Minneapolis
and Manitoba Ry. Co 434
Gourley v. Countryman 49, 342
Gowdy et al, v. Kismet Gold Min-
ingCo 191
Grimes, Northern Pacific R. R.
Co.r 452
Gninewald et al. v Northern Pa-
cific R. R. Co. e< aZ 195
Guillory r. Boiler 209
Guthrie, City of 366
Haggberg et al. r. Mahew 489
Hallack, Lucy C 542
Hall r. Mitchell 584
Harding r. Moss 160,434
Hardy v. McClellan et al 285
Harris r. Belknap 88
Harris r. Northern Pacific R. R.
Co 441
Harris, Skoyen r 46
Harrison, Henry H 256
Hasselquist, Anders G 351
Hastings and Dakota Ry. Co. r.
Berg etal 145
Havard et al.. Smith r 457
Hawley, Thomas 9
Hawley, Florida Railway and
Navigation Co. r 245
Hayden r. Jamison 403
Head, Norstrum r 413
Henley el al. r. Sharpnaok 315, 581
Henline v. Ginder 476
Hensley r. Waner 92,414
Herrick, Wallace H 23
Hershey r. Bickferd et al. (on re-
view) 496
Hinei?. Cliff 432
Hodges el aU r. Colcord 221, 472
Holcomb V. State of California.. 26
Horton, Albert H 379
Howell, John H 35
Hudson V. Orr 429
Huff el al., CowlesfJ 81
Hull el al. r. Ingle 214
Hnmiston r. Northern Pacific R.
R. Co. (on review) 451
Hurst, Elbert 91
Hnsted, Leslie O 255
Hnyck et ah v. Harding 420
Idaho, State of, Benson r 272, 416
Indian Allotments 26>4
TABLE OF CASES REPORTED.
IX
Ingle. Hull etal, v
luuiaii r. Northern Pacific li. R.
Co
Iowa Railroad Land Co. (on re-
view
Irwin r. Kewsom (on review) . - . -
Jamison^ Hayden v
Jeremy, Thomas E
JoneSf Bonnett r. (on review)
Jones. State of Oregon et al.v...
KeUy,X.F
Kiug«/ a?.,City of Chamberlain r.
Kipp, Sylvester et al
Kirk r. Brooks
Kismet Gold Mining Co., Gowdy
etal. r
Korha, John W
Kuhlman, Lee v
Kuhn, State of Washington v...
Lakey et al,f Robords t*
Lawrence, Cnmntt v
Lawrence v. Seeger et al
Leach et al. r. Potter
Lee, Anna
Lee r. Knhlman
Lefreiner, Wilson r
Lehrbass, Van Dyke v
Lindsey, Jennie W
Lincoln r. Sowers
Lonisiana, State of
Lucas r. Dudley
Lyman, Mary O
Mackall et al. v. Goodsell
Mahew, Haggberg et al. v
Majors v. Rinda
Maloney et al., St. Paul, Minne-
apolis and Manitoba Ry. Co. v.
Mauslield, Clark r
Martineau, James H
Mason r. Cromwell
Matthews, Phillips r
McClellan etal.. Hardy r
McClaine, St. Louis, Iron Moun-
tain and Southern R. R. Co. r..
McCordiaTownsite, Brmnmettr.
McKelvey, Christopher W
McMilLin, Foote r. (on review)..
Meal V. Donahue
Miles, Palmer r
Minnesota, State of, St. Paul and
Sioux City R. R. Co. r
538
448
191
428
477
573
531
400
398
322,569
557
42
231
310
493
553
489
277
460
343
333
248
297
285
Page. Page.
214 Montgomery, Wesley 390
Montoya et al., United States v.. 52
318 Moss, Harding t? 160,434
Muller r. Northern Pacific R. R.
125 Co 439
189 Murphy, Buckley v 352
Murphy's Heirs, Smith et a?, r .. 139
403
418 i Xeill, John S. M 393
242 ! Newcomb, Coffin r 360
116 ' Newsom, Irwin r. (on review).,. 189
i Northeast Perry 580
392 Northern Pacific R. R. Co 138,320
526 NorthernPacificR.R.Co.r.Ayers. 40
Northern Pacific R. R. Co.,
Brown v 370
Northern Pacific R. R. Co. r. Coft-
mane^aZ 280
408 Northern Pacific R, R. Co., Col-
400 lett r 180
12 Northern Pacific R. R. Co., Eini-
i stadr 230
291 Northern Pacific R. R. Co. r. Fie-
berger 375
Northern Pacific R. R. Co. r.
Grimes 452
Northern Pacific R. R. Co. et al.,
Grnnewald et al.v 195
Northern Pacific R. R. Co., Har-
ris t? 441
Northern Pacific R. R. Co., Hu-
miston V. (on review) 451
Northern Pacific R. R. Co., In-
man r 318
Northern Pacific R. R. Co., Mul-
ler » 439
Northern Pacific R. R. Co.,
O'Brien v, (on review) 413
Northern Pacific R. R. Co.,Page v. 444
Northern Pacific R. R. Co. v,
Rogers 21
Northern Pacific R. R. Co. v.
Shepherdson 417
Northern Pacific R. R. Co., Shan-
uahan V 516
Northern Pacific R. R. Co. v. St.
Paul, Minneapolis and Mani-
toba Ry. Co 141, 195
Northern Pacific R. R. Co. et al.
r. Waldon 24
Norstrum r. Head 413
274
468
536
46
155
466
364
O'Brien v. Northern Pacific R. R.
Co. (on review) 413
Odett r. Davis 153
TABLE OF CASES REPORTED.
Page.
Ohio, State of 522
O'Melveny, H. W 560
Oregon and California R. R. Co . 381
Oregon and California R. R. Co.
r. Crocker 4
Oregon, State of, et al. r. Jones . 116
Orr, Hudson r 429
Page V. Northern Pacific R.R. Co. 444
Palmer V. Miles 466
Pape, Emma L 513
Patton r. Clausaen 406
Pensacola and Georgia R. R. Co.,
Stokesf 396
Penwell r. Christian (on review) 335
Perrine Grant 109 '
Phillips r. Matthews 297 ,
Phillips V, Sioux City and Pacific
R. R. Co. (on review) 29 i
Phillips r. Smith 472
Poppr. Doty 350
Potter, Leach 0t a2. r 673
Pratsch et al. r. Dobbins €tal..» 426
Prescott, BuUard v 402
Pretzel, Joseph 64
Provence, Stewart r 522
Qinigley v. State of California. . . 507
Reid, AbramM 306
Renfro e< a7., Clark V 61
Re vor, James tf< al 517
Rice V. State of California 14
Rinda, Majors V 277
Robinson, Butler V 385
Rogers, Northern Pacific R. R.
Co. f> 21
Roscoe et al. v. Foster et al 435
Robords r. Lakey f( aZ 291
Scisson, J. H 330
See r. See 244
Seeger «i a/., Lawrence V 477
Shank, John P 296
Shannahan r. Northern Pacific
R.R.CO 516
Sharpnack, Henley etal. r 315, 581
Shaw, Braden r 301
Shepherdson, Northern Pacific
R. R. Co. V 417
Sioux City and Pacific R. R. Co.,
Phillips V. (on review ) 29
Skoyen V. Harris 46
Slocum, William F 308
Smith, Philommeelal 323
Page.
Smith r. Havard e< ol 457
Smith et al. r. Murphy's Heirs. . . 139
Smith, Phillips r 472
Smith et al. r. Taylor 64, 509
Solberg, Ferst tj 376
South Olga Fishing Station 314
Southern Pacific R. R. Co 543
Southern Pacific R. R. Co.,
Walker© 172
Sowers, Lincoln v 42
Spurlock et al. v. Crane 570
Staples et al. r. St. Paul and
Northern Pacific R. R. Co 339
State of California, Holcomb v.. 26
State of California, Rice r 14
StAte of California, Quigley v . . . 507
State of California et al. v. United
States et al 68
State of California r. Wright. . . 54
State of Florida 147,176
State of Idaho, Benson v 272, 416
State of Louisiana 231
State of Ohio 522
State of Oregon et al. v. Jones. . . 116
Stote of Washington 122
State of Washington r. Knhn ... 12
State of Washington, Todd r. .. 106
State of Wyoming 562
St. Loais, Iron Mountain and
Southern R. R. Co. r. McClaine 274
St. Paul, Minneapolis and Mani-
toba Ry. Co. r. Maloney etal.. 460
St. Panl, Minneapolis and Mani-
toba Ry. Co., Gorder v 434
St. Panl, Minneapolis and Mani-
toba Ry. Co., Northern Pacific
R.R.C0.1; 141,195
St. Paul, Minneapolis and Mani-
toba Ry . Co. V. Steege etal 453
St. Paul, Minneapolis and Mani-
toba Ry. Co. r . Thompson 226
St. Paul and Northern Pacific
R. R.Co., Staples 0/aZ. r 339
St. Paul and Sionx City R. R. Co.
r. State of Minnesota 364
Stewart v. Provence 522
Stokes t*. Pensacola and Georgia
R.R.C0 396
Swaze V. Suprenant 337,580
Swarts, Glover et al. v. (on re-
view) 447
Sweet, Behar V 158
Talley r. Gass 45
Taylor, Cook v 200
TABLE OF CASES REPORTED.
XI
Page.
Taylor et al. r. B^art 499
Taylor, Frazier ef a/, r 358
Taylor,Mar8 6
Taylor, Smitlitfi a ^ v 64,509
Teter, Lowell D 284
The Dalles Military Wagon Road
Co,,Watoonr 202
Thomas, J. W 496
Thompson, St. Paul, Minneapolis
and Manitoba Ry . Co. t* 226
Todd V, State of Washington 106
Toole, Michael L. et aZ 462
Townsite Board Nnmber Six ... . 582
Townsite of MoCordia, Bram-
mettr 468
Ulinr. Colby e^ttZ 311
United States v, Brousseau 454
United States v, Montoya etal.. 52
United SUtes ei ah, State of Cal-
ifornia el aZ.r 68
Van Dyke V. Lehrbaes 322,569
Page
Vincent r. Gibbs 383
Waldon, Northern Pacific R. R.
Co.e^a7.v 24
Waldron, Black Tomahawk v... 145
Walker r. Clayton 79
Walker v. Southern Pacific R. R.
Co 172
Walters, David 58
Waner, Hensley v 42,414
Wsshingtou, State of 122
Washington, Stat« of v. Knhn. . . 12
Washington, State of, Todd r 106
Watson V. The Dalles Military
Wagon Road Co 202
Wheaton v. Wallace 100
Wiley, William 423
Wilson r. Lefreiner 398
Wing, Anderson v 4C9
Woodr. Wood 177
Wright V, State of California. .. 54
Wyoming, State of 562
TABL.E OF CASES CITED,
[The abbreriation " L. B.'* refers to this pnblicatioo ; **L. and R.," to the records in the division of
Lands and Railroads ; "B.L. P.*' refers to Brainerd's Legal Precedents; "1 C.L.L.," to Copp*0
Public Land Laws, Ed. 1875; "2 C. L. L.," to Copp's Public Land Laws, Ed. 1882; "C. L. O.," to
Copp's Land Owner; "C. M. D.." to Copp's Mininic Decisions; "C. M. L.,'» to Copp's Mineral
Lands ; " Lester," to Lester's Land Laws and Decisions ; "Rep.," to the Reporter; " S. M. D.," to
Sickles's Mining Laws and Decisions; and "C. CIs.," to the Court of Claims.]
Page.
Adams, Maggie; 19L.D.,242 557
Aldridge v. Williams ; 8 How., 9 235
Allenv.Cnrtins; 7L.D., 444 86
Allen r. Price; 15L.D.. 424 85,474,478
Aaderaon v. Anderson; 5 L. D., 8 346
Anderson v. Northern Pacific R. R. Co.
etal.; 7L.D.,163 166
Ard v. Brandon; 156U.S., 537 348
Atherton v. Fowler; 90 TJ. S., 513 224, 348
Atlantic and Pacific R. R. Co. ; 12 L. D.,
116 138
Austin r.Norin; 4L.D., 461 524
Avery et al r. Freeman et al. ; 22 L. D., 505 568
Bailey, John W., «< a2. ; 5 L. D., 216 108
Bardon v. Xortbem Pacific R. R. Co. ; 145
U.S.,535 142
Barker, Ellen; 4L.D.,514 378
Baahford v. Clark etal.;22 L. D., 328 80, 157
Beckner, Tobias; 6L.D.,134 188,283
Beecbcr v. Wetherby ; 95 U. S., 517 151
Beharv. Sweet; 24L.D.,158 100
BeUamyr. Cox; 24L.D..181 283
Bender r. Sbimer; 19L.D.,363 852,567
Blackwell Townsite v. Miner ; 20 L. D., 544 571
Block 9. Contreras; 4L.D.,380 363
Boord p. Girtman; UL.D.,516 261
Bowker, Edward; llL.D.,361 444
Bowles v.Frazier; 22L. D.,310 317
Boyle V, Northern Pacific R. R. Co. ; 22
L. D., 184 180,341,516
Bradford, George K. ; 4 L. D., 260 244
Brady r. Williams; 23 L.D., 533 97
Bray ». Colby ; 2L.D.,78 557
By bee c- Oregon and California R. R. Co. ;
139n.S..e63 113
Caldwell v. Carden ; 4 L. D., 306 30O
Campbell, Emma J . ; 15 L. D., 392 248
Campbell V. Jackson ; 17L.D.,417 273
Capp8,L.J.: 8L.D.,406 363
Carland, John : IL. D., 631 537
CarroIL v. SafTord; 3 How., 441 140
Casaady v. Eiteljorg's Heirs; 18 L. D.,
235 461
Castello V. Bonnie, 28 L. D., 162 53
Pago.
Castle V. Womble ; 19 L. D., 455 176, 675
Caward, J. J.; 3L. D., 605 524
Cawoodv. Dumas ; 22 L. D., 585 585
Cedar Hill Mining Co. ; 1 L. D., 628 2U
Cedar Rapids and Missouri River R. R.
Co. et al. V. Herring; 110 TJ. S., 27 44
Central Pacific R. R. Co. ; 2 L. D., 480. ... 113
Central Pacific R. R. Co. V.California; 4
C.L.0.,151 27
Chicago, St. Paul, Minneapolis and
Omaha R. R. Co. ; lOL.D., 147 9
Clancy et al. v. Hastings and Dakota Ry.
Co.; 17L. D.,592 340
Clay berg, Andrew ; 20 L. D., Ill 307
Cook V. Yilla, on review ; 19 L. D., 442 86
Cooper et aL v. Sioux City R. R. Co. ; 1 L.
D., 345 113
Cooper, John W., et al ; 16 L. D.. 285 24
Cooper V. Roberta ; 18 How., 173 151
Cowles V. Huff et al. ; 24 L. D., 81 218. 409, 474
Cragin D.Powell; 128 U.S., 691 481
Craven^ Albert G. ; 14 L. D., 140 247
Creary . William E. ; 2 L. D., 694 538
Crooks v.Hadscll; 3L. D.,258 363
Cullins 0. Leonard ; 17 L. D. , 412 226
Cumutt V. Jones ; 21 L. D., 40 422, 428
Curtin et al. v. Morton ; 22 L. D., 01 64
Dakota Central R. R Co. r. Downey; 8 L.
D.,115 461
Daneri v. Texas and Pacific R. R. Co. ; 2
L.D.,548 .• 114
Darginee 02. V.Koch; 20L.D.,384 263,574
Davis, Da\id J. ; 7 L. D., 560 87
Davis. Jennie L. ; 19L.i).,87 42
Davis's Administrator v. Welbbold ; 139
U.S.,507 176
Dean V. Simmons ; 16L. D.,527 571
Defieback v. Hawke ^ 116 U. S., 392 176
Degenhart o. Korthem Pacific; IS L. D.,
159 22
Deseret Salt Co. v. Tarpey ; 142 U. S.. 241. 113
Denman v. Domonigonr; 18 L. D. , 41 388
District of Columbia t;. Washington Mar-
ketCo.; 108U.S.,243 285
Dobie v. Jameson ; IOL.D.,91 27a
XIU
XIV
TABLE OP CASES CITED.
Page.
Dober v. Campbell et ol., on review ; 18 L.
D.,88 472
Drewv.Comisky; 22L.D^174 53
Duify V. Northern Paciflo IL B. Co.; 2
Copp.Sl 283
Dimcanson v. Southern Paoiflc K. B. Co.|
11L.D.,6S8 178
Donn V. Shepherd el al. ; 10 L. D., 139 87
Emerson, Henry D. ; 20 L. D., 287 388
Emert, Adolph; UL. D., 101 247
English, Jacob E.; 10L.D..409 449
Elliott, John J.; IL.D.,303 5
Elli8,Jo«eph; 21L.D.,377 140
Elson, William C.J eL.D.,797 2B0
Eltingv. Terhnne; 18L. D. S86 14
Etling etal.v. Potter ; 17 L. B., 424 574
Evans, Henry C. ; 23L.D.,412 349
Falconer V.Price; 19L.D., 107 265
Famell et ai. v. Brown, on review ; 21
L.D.,394 437
Fanlkner v. HiUer ; 16 L. D., 130 86
Fanll V. Lexington Townsite ; 15 L. B., 380, 421
Ferrell et al. v. Hoge et al. ; 18 L. D., 81 . . . 508
Finney v. Berger; 50 Cal., 249 57
Fish V. Northern Pacific ; 23 L. D. , 15 23
Florida Central and Peninsular B. B. Go. ;
16L.D.,529 371
Florida Navigation Co. v. Miller; 3 L. D.,
324 244
Forward, James A.; 8 L.D., 528 86
Fosgate v. Bell ; 14 L. D.,459 224
Gallagher v. Jackson ; 20 L. D.. 389 86
Gamble v. Northern Pacific B. B. Co.; 23
L.D., 351- 372,446
Ganger, Henry; 10 L. I).. 221 83,400
Glacier v. Willis ; 127 U . S., 471 21
Golden v. Cole's Heirs ; 16 L. D., 375 422
Gonzales v. French ; 164 U. S., 338 582
Goodalev. Olney; 12L.D., 324 848
Goodale v, Olney, on review ; 13 L. D., 496. 86, 273
Gowdy et al. v. The Kismet Gold Mining
Co.; 22L.D., 624 266,349
Grandin Bros, el a2. ; 18 L. D., 460 236
Grandinv.LaBar; 23L.D., 301 412
Graves, Alonso W. ; 1 1 L. D., 283 248
Gray V. Ward el ol. ; 5L.D.,410 402
Gregg et al. v. Colorado ; 15 L. D., 151 15
Giegg el al. V. Lakey ; 17L.D.,60 292
Griffard el al. v. Gardner ; 21 L. B., 274 . . . . 304
Gregg v.Lakey; 16L.D..39 292,323
Guernsey, S. Lizzie ; 22 L. B., 526 444
Gnineau, Thomas ; 9 C. L. O., 153 587
Habersham, F. E. ; 4L.B.,282 363
Hall,L.B.; 5L.B.,141 572
Hall/lal. V.Stone; 16L.B.,199 211
Hamilton «. Harris; 18 L.B., 45 481 |
Hannibal and St. Joseph B. B. Co. ; 10
L.B.,610 396 j
Hannon v. Northern Pacific B. B. Co. ; 11 !
L.B.,48 280 !
Hanscom V. Sines eloi.; 15L.B.,27 86 i
Page.
Happel V. Hamliue ; 21 L. B., 283 561
Hardin, Frank P., etal.-, 1 L. B., 597 169
Harrison, F. P. ; 2L.B.,767 138
Hastings and Bakota B. B. Co. v. Grinnell
etal.', 19L.B.,215 142
Hastings and Bakota B. B. Co. v. Whit-
ney; 132n.S.,357 86
Hays, John W.; 8C.L.0., 21 504
Heath V.Wallace; 138 U.S., 573 28
Heiskellv.HcBowell; 23L.B.,63 585
Hemsworth v. Holland ; 7 L. B., 76 572
Hensley V. Waner; 24L.B.,92 423
Herring v. Bailroad Company ; 110 IT. S., 27 126
Herth, William; 22L.B.,385 274
Heydenfeldt v. Baney Gold and Silver
Mining Co.; 98 U.S.. 634 151
Hoeft et al v. St. Paul and Buluth B. B.
Co.; 15L. B.,101 453
Hoflknan, Charles; 4L.B.,92 6
Holmes V. Hockett; 14 L.B., 127 86
Hopkins V. Daniels; 4L.B..126 46
Home V. Smith ; 159 U. S., 40 893
Houghton v.Junett; 4L.B.,238 863
Honlton v. The Chicago, St. Paul, Minne-
apolis and Omaha By. Co. ; 17 L. B., 487 . 897
Howard, Prsstina B. ; 8 L. B., 286 182
Hoxie V. Peckinpah ; 16 L. B., 108 810
Hughes V. Tipton ; 2L.B.,834 863
Hunv. GifiBn: 17 L. B.,162 317,501
Huls.Clara; OL.B.,401 140
Isaak, Christian; 9L.B.,624 449
Jenkins etoLv. Breyfus ; 19 L. B., 272. ... 44
Jeromeelal.; 12 L. B.,165 108
Julien V. Hunter ; 18 L. B., 161 571
Kellem v. Ludlow ; 10 L. B., 560 474
Kelly,Patrick; IIL.B.,326 86,348
Kamansklv. Biggs; 9L.B.,186 536
Kimble, Fred W.; 20L. B.,67 809.467
King V. Chicago, Milwaukee and St. Paul
By. Co.; 17L.B.,167 631
Kiser v. Keech el al. ; 7 L. B., 25 439
Knight V. United States ; 142 U. S., 191 . . . 167
Krichbaum V.Perry; 5L.B.,403 524
La Bar v. Northern Pacific B. B. Co. ; 17
L.B.,406 440,445
Laird,Maggie; 13L. B.,502 86,224
Lake Superior Ship, &c., Co. v. Cunning'
ham; 155 U. S., 854 113
Lamar, W.H.; 5L.B.,400 380
Lansdale v. Baniels ; 100 U. S., 1 13 274
Largent, Edward B., el al. ; 13 L. B., 307 . . 11
Lawrence v. Phillips ; 6 L. B., 140 347, 399
Legan v. Thomas el oZ. ; 4L.B.,441 5
Leonard, Mary B.; 9 L.B., 189 449
Lindback,JohnM.; 9L.B.,284 449
Lipinski, Frank J. ; 13 L. B.. 439 561
Littlepage v. Johnson ; 19 L. B., 312 65
Littler. Bnrant; 3L.B.,74 278
Long,Mack: 15L.B..579 481
Manning, Patrick; 7 L.B., 144 ,. 346
TABLE OF CASES CITED.
XV
Page.
lIjUihewB V. fiarbarovie ; 18 L. D., 446. ... 474
Mayenr. Dyer; 21L.D.,187 85
McCallv.Molnar; 2L.D.,205 87
KeCharlea «. Boberts ; 20 L. D., 564 263
McCollam Fishing and Trading Co.; 23
L.I).,7 314
McCorroack v. Violet ; 21 L. D., 451 85
McCreary v. Wert «t oZ. ; 21 L. D., 145. ... 88
McCreery v. HaakeU ; 119 IT. S., 327 151
McDonald ^oLv. Hartman et al. ; 10 L. D.,
547 85,409
McDonald v.Jaramilla; IOL.D.,276 348
McDoweU V. The Dallee Military Wagon
KoadCo.; 22L.D., 599 202
McEven v, Johnoon ; 23 L. D., 472 64
McGowan v. McCann ; 15 L. D., 542 224
McGrann, Owen ; 5L.D.,10 504
McGr»th e<ai.; 20 L.D., 542 567
McMichael v. Murphy etal.;2DL. D., 147 . 84
McMichael v. Murphy et <U.t on review ; 20
I..D., 535 86
MoMicken, Herbert, et al. ; 11 L. D., 96. . . 394
McXamara v. Orr et ol. ; 18 L. D., 504 84
McTicar, James; 21L.D.,128 9
McWeeney v. Greene ; 9 L. D., 38 273
Medley v. Robertson etal.; 56 Cal., 396. . . 57
Melon, John, et al. v. Lambard, Oryille D. ;
51 Cal., 258 21
Metcv. Seely; 21 L. D., 148 98
Miles 9. Waller; 16L.D.,12 572
Miller, John O., v. Northern Pacific B. R.
Co.; IIL.D.,428 418
Mills V.Daly; 17L.D., 346 86,211
Miner, Abraham L. ; 9 L. D., 408 15
Mining Co. v. Bullion Co. ; 1 Mont. M. R.,
114 21
Missouri v. Kentucky ; 11 Walkice. 386 . . 374
MJasouTi, etc., R. R. Co. v. Kansas Pacific
R.R.Co.;97U.S., 497 31
Moellev. Sherwood; 148 U.S., 21 412
Mnlinariv. Soolari; 15L. D., 201 80,157
Monroe et al v. Taylor ; 21 L. D., 284 96, 422
Marrill v. iNorthem Pacific R. R. Co. ; 22
L.D., 636 516
Morris v.Oe Cells; 5lCal.,55 21
Murphy V. Logan; 19 L. D., 478 322
Kewell V. Petefish ; 20 L. D., 233 85
Kew Orleans Canal and Banking Co. v.
State of Lonisisna ; 5 L. D., 470 278, 490
Newman, E.S.; 8 L. D., 448 348
Kiven 9. State of California ; 6 L. D., 4r9. 57
Northern Pacific R. R. Co. ; 15 L. D., 8. . . 41
Northern Paclllc R. R. Co. ; 17 L. D., 404. 418
Northern Pacific R. R. Co. ; 20 L. D., 191 . 121
Norttiem Pacific R. R. Co., on review;
20 L. D., 187 418
Northern Pacific R. R. Co. ; 21 L. D., 412. 371
Northern Pacific R. R. Co. v. Bass ; 14 L.
D.,443 278,490
Northern Pacific R. R. Co. v. Boms ; 6 L.
D..21 121,819
Northern Pacific R. R. Co. v. Crosswhite ;
20L.D^W6 121
Paga
Northern Pacific R. R. Co. v. Holtz ; 22 L.
D.,309 418
Northern Pacific R. R. Co. v. MoMahon ;
18L.D..435 516
Northern Pacific R. R. Co. v. Miller: 7 L.
D.,100 198
Northern Pacific R. R. Co. v. Miller ; 11 L.
D.,428 197,871
Northern Pacific v. Patterson ; 155 U. S.,
130 141
Northern Pacific R. R. Co. v. Sj^mons ; 22
L.D.,686 121,319
Northern Pacific R. R. Co. v. Walters et
al.', 23L.D.,331 341
O'Brien v. Northern Pacific R. R Co. ; 22
L.D.,135 571,376,447
0'Connerv.Hsll«Ca<.; 13L.D.,34 283
Olney v. The Hastings ^ Dakota Ry. Co. ;
IOL.D.,136 181
Oregon and California R. R. Co. v. Bagley ;
a3L.D.,392 5
Oregon and California R. R. Co. v. Kuebel ;
22L.D., 308 5
Osbom V. Knight, on review ; 23 L. D., 216. 412
Owens V. Gsuger ; 18 L. D., 6 84
Pacific Ry. Co. v. United States ; 124 U. S.,
124 545
Parsonsv. Ellis; 23 L D., 504 193
Patton V. Kelley ; 11 L. I>., 409 83
Paxton V. Owen ; 1(5 L. D., 540 300
Peacock v. Shearer's Heirs ; 20 L. D., 218. 192
Pearson, George W. ; 22 L. D., 471 334
Peosley r . Whiting ; 18 L. D., 356 572
Pence V. Gourley; 18 L. D., 358 60
Penrose, William M. ; 5 L. D., 179 846
Penwell r. Christian ; 23 L. D., 10 317, 501
Pereirav. Jacks; 15 L. D., 273 15.57
Perrott v. Connick ; 13 L. D., 598 84, 211
Perry et al. v. Hasklns ; 23 L. D., 50 190
Pfaffv. Williams; 4L.D.,455 348,431
Phillips, Barney ; 1 L. D., 94 524
Phillips V. Sioux City snd Pacific R. R.
Co. ; 22 L. D., 341 374
Pierce et al. v. Musser-Sanntry Co.; 19
L.D., 136 44
Pierce, Sarah E. ; 1 L. D., 59 536
Pittsburg V. Danforth ; 56 N. H., 272 299
Plaetkev. Central R. R. Co. ; IOL.D.,317. 113
Piatt V. Union Pacific R. R. Co. ; 99 U. S.,
48 235
Poole V . Moloughney ; 11 L. D., 197 224
Pooler v. Johnston; 13 L. D., 134 572
Pomeroy v. Wright ; 2 L. D., 164 429
Porter V. Throop; 6L.D., 691 810
Price, George; 12L.D.,162 330
Qninn, Frank; 9L.D., 530 203
Randolph, Simon ; 23 L. D., 820 404
Rankin, John M. ; on re-review, 21 L. D.,
404 37,293
Reed, JohnH.; 6L.D., 563 8
XVI
TABLE OF CASES CITED.
ReeTea V. Emblen ; 8L.D.,444 276
Kenop.Cole; 15L. D., 174 354 ,
Reynolds r. Cole; 5 L.D.. 555 572 ,
Kice r. Lensahek ; 13L.D., 154 348
Richftidton v. Travpr ; 1 12 U. S. , 428 412 !
Rinda r. Northern Paciflo R. R. Co. e< oZ. ;
19L.D.,184 278 j
Ri ttwago V. HcCliutock ; 21 L. D., 267. . . . 804 |
Roberts 0. Gordon ; 14L.D., 475 300 ,
Rosenbnrgr. Hale's Heirs; 9L.D., 161.. 283 ;
Royee, Jamps R. ; 10 C. L. O., 25 587
Rnmbley v. Causey ; IQ L. D., 266 431
Rush ©.Bailey ; 16 L. 1)., 565 261
Russell V. (xerold ; 10 L. D., 18 86
Ryan et al. v. Carter et al. -, 93 U. S., 78 252
Sachs V. Hastings and Dakota Ry. Co. ; 21
L.D.,298 436
Sawyer v. Northern Pacific R. R. Co., 12
L.D.,448 445
Sclirotberger v. Arnold ; 6 L. D., 425 86
Schulenbcrg v. Harriman ; 21 Wall., 44. . . 113
Sethnjauv.Clisc; 17L.D.,307 44,484
Sevcry v. Vickford, on review ; 16 L. D.,
135 85
Sbarpstein v. State of Washington; 13 L.
I)., 378 108
Shearer r. Rhone; 13L.D.,t80 572
Sheets v. Sclden's Lessee; 2 Wallace, 177. 40
Sliepley et al. v. Cowen et al. ; 91 U. S., 330. 118, 283
Shields V. SCcDonald; 18 L. D., 478 342
Sierra Lumber Co. ; 22 L. D., 690 58
Silvi'nnan v. Northern Pacific R. R. Co. ;
17L.D.,e3 571
Simmons v. Wagner ; 1 1 Otto, 260 265
Sioux City and Pacific R. R. Co. r. Wrich ;
22L. D.. 515 166
Sisemorc, William R. ; 18 L.I)., 441 59
Smith. Alfred M.; 9L.D., 146 346
Smith. HuldaM.; IIL.D., 382 108
Smith r. Brearly ; 9 L. D., 175 53
Smith P.Noble; IIL.D.,558 245
Smith r. Townsend ; 140 U. S., 490 225
Southern Pacific R. R. Co. v. Burlingame;
5L.D.,415 57
Southern Pacific R. R. Co. v. Stote of Cali-
fornia; 4L.D.,437 365
Southern Pacific R. R. Co. v. Sturm; 2
L.D.,546 283
Sparks, Alpha L; 20L. D.,75 247
Sprattv. Edwards; 15L.D.,290 245
Stark r. Starrs; 6 Wall., 402 266
Starr r.Burk; 133IT.S.,54l 86
Staples r . Richardson ; 16 L. D., 248 572
State of Ca'.ifornia ; 23 L. D., 230 27
State of California r. Sevoy ; 9 L. D., 139. 378,427
State of Califumia r. Tnited States; 3 L.
D.,521 27
State of Dakota; 13L.D.,708 424
SUte of Florida; 8L.D.,65 148
State of Florida: 18L.D.,26 148
Stateof Ohio; 3L.D.,571 240
State of Ohio, on review ; 10 L. D., 394 . . . 152, 522
State of Louisiana ; 3L. D.,396 239
Stateof Mississippi; IOL.D.,393 152
Page
Slebbins v. Croke ; 14 L. D., 498 412
Stewart et al. v. Roes etal.; 21 L. D., 446 . 21
Stinchfleid r . Pierce ; 20 L. D., 12 263. 574
St. Louis, &.C., Ry. «. McGee; HSU. 8.,
469 113
St. Paul and Pacific R. R. Co. v. Northern
Pacific R. R. Co. ; 139 U.S., 1 142
St. Pani, Minneapolis and Manitoba Ry.
Co. V. Lambeck^ 22L.D..202 376,440,447
St. Paul, Minneapolis and Manitoba Ry.
Co.; 20L.D., 22 545
Sumner v. Roberts ; 23 L. D., 201 162, 189, 586
Sutley, Will iara R. ; 3 L. D., 248 45
Swanson v. Simmons ; 16 L. D., 44 86
Sweeney r. Northern Pacific R. R. Co. ; 20
L.D., 394 175
Swims V. Ward; 13 L.D., 086 86
Swift V. California and Oregon R. R. Co. ;
2C.L.L., 738 881
Tagg V. Jensen : 16L.D.,113 80,157
Talkington's Heirs v. Hempfling; 2 L. D.,
46 53
Taner v. The Heirs of Walter A. Mann ;
4L.D., 433 183
Taylor, Hugh; 0 L.D., 305 154
Taylor v. Rogers ; 12 L. D.. 694 203
TennesMoe Coal. Iron and Railroad Co.
etal; 23id..28 192
Thomason V.Patterson; 18L. D.,241 399
Thompson V. Ogden ; 14L. D.,65 283
Thompson. William ; 10 L. D., 501 449
TiUinghast v. Van Houten : 15 L. D., 394. 474
Tomahawk v. Waldron ; 13 L. D., 683 312
Tower, Charlemagne ; 2 L. D., 779 138
Townsite v. Morgan et al. ; 21 L. D., 496. . 422
Townsite of Kingfisher v. Wood; 11 L. D.,
330 236
Tronnes v. St. Paul, Minneapolis and
Manitoba R. R. Co. ; 18 L. D., 101 227
Turner v. Bumgardner; 5 L. l).,377 300
Turner v. Robinson ; 3 L. D., 562 433
Tnstin V.Adams; 22 L.D.,266 300
Tyler v.Emde; 12L. D.,94 316,536
iriiulo V. Kline et al ; 9 L. D., 377 276
Union Colony v. Fulmele; 16 L. D., 273 418
Union Pacific R. R. Co. v. McKinley; 14
L.D.,237 484
Union Pacific R. R Co. v. Norton (on re-
view); 19L.D.,524 44
United States v. Benjamin; 21 Fed. Rep.,
285 169
United States V. Bash ; 13L.D.,529 58
United States v. California, etc., Land Co. ;
148 U.S.. 31 412
United SUtes v. Haggin ; 12 L. D., 34 437
United States v. Schurz ; 102 U. S., 378. ... 201
United States v. Smith ; 11 Fed. Rep., 487. 169
Unite<l States v. Union Pacific R. R. Co.;
91 U.S., 72 235
Van Wyek v. Kue vals : 106 U. S., 360 113
Walker v. Clayton ; 24 L. D., 79 157
TABLE OP OVERRULED AND MODIFIED CASES.
XVII
Pag©.
WtSker v. Snider, on review ; 19 L. D. , 467 . 86
Warn 9. Field; 6 L. D., 236 429
Warren et al. v. State of Colorado ; 14 L.
D.,fl81 151
Webb V. Lougbrey «( aZ. ; 9 L. D., 440 225
Webster v. Lntber.- 163 U. S., 331 503
Weed,Thurlow; SL.DmIOO 534
Weeks v. Bridgeman ; 159 U. S., 541 . . 230. 365, 398
Welch V. Duncan «< oi. ; 7 L. D., 186 474
Werdenv. Scblecht; 20 L.D.,523 45
Wbeeler, L. H. ; llL.D.,381 108
Wfaitefordv. Johnson; 14L. D.,67 571
White V.Dodge; 21 L.D., 494 437
Whitney V. Maxwel] ; 2 L. D., 98 86
Whitney o. Taylor ; 158 U. S., 85. . . 22, 142, 442, 517
Wight V, Dubois et eU. ; 21 Fed. Rep., 093 . . 20
Wilkins, Benjamin C. ; 2 L. D., 120 250
Williams V.Clark: 12L.D.,178 348
Pageu
WillianiB V. United States; ^38 U. S., 514 201
Witherspoon v. Duncan ; 4 Wall., 210 86. 141
Wisconsin Central R. K. Co. ; 6 L. D., 190 113
Wisconsin Central B. R. Co. ; 10 L. D., 63. 9
Wisconsin Central R.R. Co. v. Forsythe;
15rfU.S.,46 10
Wisconsin Central R. R. v. Price Co. ; 138
U.S., 496 141,174
WiBCousin R. R. Co. ; 5 L. D. 81 113
Wolsey V. Chapman , 101 U. S., 755 284
Welters, Charles; 8 L. D., 131 534
Woodson et ai. v. Johnson etal.; 22 L. D.,
102 567
Wooten,JohnT.; 5L.D., 389 454
Wright 9. Larson; 7L.D., 555 273,355
Wright v. Roseberry; 121 U.S., 488 28
Wurlitzer, Rudolph ; 6 L. D., 315 230
TABIiE OF OVERRUIiEB AN1> MODIFIEB CASES.
[From Vol. 1 to 24, inclnsiyo.]
Aldrich v. Anderson (2 L. D., 71) ; overruled, 15
L. D., 201.
Anderson v. Tannebill et al. (10 L. D., 388) ; over-
ruled, 18 L. D., 586.
Bailey, John W., «< al. (3 L. D., 386) ; modified, 5
L.D.,613.
Baker v. Hurst (7 L. D., 457) ; overruled, 8 L. D.,
110.
Barlow, S. L. M. (5 L. D., 695) ; modified, 6 L. D.,
648.
Barich v. Kennedy (3 L. D., 437) ; modified, 6 L. D.,
217.
Bivins v. Shelley (2 L. D., 282) ; modified, 4 L. D.,
583.
Blenkner v. Sloggy (2 L. D., 267) ; modified, 6 L.
D., 217.
Bosch, Gottlieb (8 L. D., 45) ; overruled, 13 L. D.,
42.
Box V. Ulstein (3 L. D., 143) ; modified, 6 L. D.,
217.
Brady v. Southern Pacific R. R. Co. (5 L. D., 407
and 658) ; overruled, 20 L. D.. 250.
Bradstreet et al. v. Rehm (21 L. D.. 30) ; reversed
on review, id., 544.
Bundy v. Livingston (1 L. D., 152); overruled, 6
L. D., 284.
Burkholder v. Skagen (4 L. D., 106) ; overruled, 0
L. D., 153.
Buttery v. Sprout (2 L. D., 293) ; overruled, 5 L.
D., 501.
Cagle V. Mendenhall (20 L. D., 447) ; overruled, 23
L. D., 533.
California, State of (15 L. D., 10) ; overruled, 23 L.
D., 423.
California, State of (14 L. D., 253) ; vacated on re-
view, 23 L. D., 230.
Call V. Swaim (3 L. D., 46) ; overruled, 18 L. D.,
373.
Cai^teDo v. Bonnie (20 L. D., 811); overruled, 22
L. D., 174.
Central Pacific R. R.Co. v. Orr (2 L. D., 525) ; over-
ruled, 11 L. D.. 445
Christoffierson, Peter (8 L. D., 329) ; modified, 6 L.
D.. 284, 624.
Colorado, State of (7 L. D., 490) ; overmled, 9 L.
D., 408.
Cornell v. Chilton (1 L. D., 153) ; overruled, 6 L.
D.. 483.
Crowston r. Seal (5 L. D., 213) ; overruled, 18 L.
D., 586.
Dakota Central R. R. Co v. Downey (8 L. D., 115) ;
modified, 20 L. D.. 131.
Devoe, Lixzie A. (5 L. D., 4) ; modified, 6 L. D.,
429.
Dudymottv. Kansas Pacific R. R. Co. (6 C. L. 0.,
69) ; overruled, 1 L. D., 345.
* Elliott V. Ryan (7 L. D., 322) ; overruled, 8 L. D.,
110.
Emblen v. Weed (16 L. D., 28) ; overruled, 17 L.
D., 220.
Bpley V. Trick (8 L. D., 110) ; overruled, 9 L. D.,
359.
Ewing V, Rickard (1 L. D., 146) ; overruled, 6 L.
D,483.
Falconer v. Price (19 L D., 167) ; overruled, 24 L.
D., 264.
Fish, Mary (10 L. D., 606) ; modified, 13 L. D., 511.
Fitch V.Sioux City and Pacific R. R. Co. (216 L.
and R., 184) ; overruled, 17 L. D., 43.
Fleming v. Bowe (18 L. D., 78) ; overruled, 23 L. D.,
175.
Florida Rwy. and Navigation Co. v. Miller (3 L.
D., 324); modified (6 L D., 716); overruled, 9
L.D., 237.
Florida, State of (17 L. D., 355) ; reversed on re-
view, 19 L. D., 76.
Forgeot, Margaret (7 L. D., 280) ; overruled, 10
L. D., 629.
Freeman v. Texas Pacific R. R. Co. (2 L. D., 550) ;
overmled, 7 L. D., 18.
*The cases marked with a star ire now authority. See Hessong v. Burgan, 9 L. D., 358.
10671— VOL 24 II
XVIII
TABLE OF OVERRULED AND MODIFIED OASES.
Gallilier, Maria (8 C. L. O., 57) ; overruled, 1 L. D.,
57.
Garrett, Joshua (2 C. L. O., 1005) ; overruled, 5
L. D., 158.
Gates V. California and Oregon B. R. Co. (5 C. L. O.,
150) i overruled, 1 L. D., 830.
Gauger, flenry (10 L. D., 221) ; overruled, 24 L. D.,
81.
Gohrman v. Ford (8 C. L. O., 6) ; overruled, 4 L. D.,
580.
Grinnell v. Southern Pacific R. R Co. (22 L. D.,
438) { vacated on review. 23 L. D., 480.
Gulf and Ship Island R R. Co. (16 L. D., 236) ; mod-
ified on review, 10 L. D., 534.
Hardin, James A. (10 L. D., 313); recalled and
revoked, 14 L. D., 233.
Harrison, Luther (4 L. D., 179); overruled, 17
L. P., 216.
Heilman r. Sy verson (15 L. D., 184) ; overruled. 23
L. D., 110.
Hickey, M.A. and Edward (3 L. D., 83) ; modified,
5L.D., 256.
Holland, G. W. (6 L. D.,20); overruled, 6 L.D.,
639, and 12 L. D., 436.
Hooper, Henry (6 L. D., 624) ; modified, 9 L. D.,
86,284.
Huls, Clara (0 L. D., 401) ; modified, 21 X.. D., 377.
Mather et al. v. Hackley's Heirs (15 L. D., 487) ;
vacated on review, 19 L. D., 48.
Meyer, Peter (6 L. D., 639) ; modified, 12 L. D.. 430.
Morgan v. Craig (10 C. L. O., 234); overruled, 5
L. I)., 303.
Northern Pacific R. R. Co. (20 L. D,, 191) ; modi-
fled, 22 L. D., 224.
Northern Pacific R. R. Co. v. Bowman (7 L. D.,
238) ; modified, 18 L. D.. 224.
Northern Pacific R. R, Co. v. Bums (6 L. D., 21) ;
overruled, 20 L. D., 191.
Northern Pacific R. R. Co. v. Miller (7 L. D., 100) ;
overruled, 16 L. D., 229.
Northern Pacific R. R. Co. v. Yantis (8 L. D.. 58) ;
overruled, 12 L. D., 127-
Nj'man v. St. Paul, Minneapolis and Manitoba
Rwy. Co. (5 L. D., 396) ; overruled, 6 L. D., 750.
Oregon Central Military Wagon Road C^. v. Hart
(17 L. D., 480) ; overruled, 18 L. D., 543.
Papina v. Alderson (1 B. L. P., 91); modified, 5
L. D., 256.
Patterson, Charles £. (3 L. D., 260) ; modified, 6
L. D.. 284, 624.
Pecos Irrigation and Improvement Co. (IS L. D.,
470) ; overruled, see 18 L. D., 168 and 268.
Phelps, W. L. (8 C. L. O., 139) ; overruled, 2 L. D.,
854.
Hyde et al. v. Warren et aL (14 L. D., 576) ; see 19 Phillips, Alonzo (2 L. D., 321); overruled, 15 L.
D..424.
Pike s Peak Lode (14 L. D., 47) ; overruled, 20 L.
D., 204.
Popple. James (12 L. D., 433) ; overruled, 13 L. D.,
588.
Powell, D. C. (6 L. D.. 302) ; modified, 15 L. D., 477.
Rancho, Allaal (1 L. D.. 173) ; overruled, 5 L. D.,
320.
Rankin, John M. (20 L. D., 272) ; reversed on re-
view. 21 L. D., 404.
* Reed v. Buffington (7 L. D., 164) ; overnileil, 8
L. D., 110.
Rico Townsite (1 L. D., 556) ; modified, 5 L. D., 256.
Robinson, Stella G. (12 L. D., 443) ; overruled, 13
L. D., 1.
Rogers, Horace B. (10 L. D., 29) ; overruled, 14 L.
D., 321.
Rogers v. Atlantic and Pacific R. R. Co. (6 L. D.,
565) : overruled, 8 L. D., 165.
'Rogers v. Lukens (6 L. D., Ill) ; overruled. 8 L.
D.. 110.
St. Paul. Minneapolis and Manitoba Rwy. Co. \9
L. D., 255) : modified, 13 L. D., 354.
Sayles, Henry P. (2 L. D., 88) : modified, 6 L. D.,
797.
Serrano v. Southern Pacific R. R. Co. (6 C. L.O.,
93) ; overruled, 1 L. D., 380.
Shanley v. Moran (1 L. D., 162): overruled, 15 L.
D.. 424.
Shineberger, Joseph (8 L.D., 231); overruled. 9
L. D..202.
Sipchon V. Ross (1 L. D., 634) ; modified, 4 L. D.,
152.
Southern Pacific R. R. Clk). (15 L. D., 460) ; re-
versed on review, 18 L. D., 275.
Spencer, James (6 L. D., 217) ; modified, 6 L. D.,
772, and 8 L. D., 467.
L.D., 64.
Jones, James A. (3 L.I)., 176) ; overruled. 8 L. D.,
448.
Jones V. Kennett (6 L. D., 688) ; overruled, 14 L.
D., 429.
Kackman, Peter (1 L. D., 86) ; overruleil. 16 L. D.,
464.
Kemper v. St Paul nnd Pacific R. R. Co. (2 C. L. L.,
805) ; overruled, 18 L. D., 101.
Riser v. Keech (7 L. D., 25) ; overruled, 23 L. D.,
119.
Kniskem v. Hastings and Dakota Rwy. Co. (6
C. L. ()., 60) ; overruled, 1 L. D., 362.
Laselle v. Missouri, Kansas and Texas Rwy. Co.
(3 C. L. O., 10) ; overruled, 14 L. D., 278.
Laughlin v. Martin (18 L. D., 112) ; modified, 21
L. D., 40.
I.jeonard. Sarah (1 L. D., 41); overruled, 16 L. D.,
464.
Lindberg, AnnaC. (3 L. D., 95) ; modified, 4 L. D.,
209.
Linderman v. Wait (6 L. D., 689) : overruled, 13
L.D.,450.
Lock wood, Francis A. (20 L. D., 361) ; modified, 21
L. D., 200.
Louisiana, State of (8 L D., 126) ; modified on re-
view, 9 L.D., 157.
Lynch, Patrick (7 L. D.. 33) ; overruled, 13 L. D.,
713.
Mnughan, (xeorge W. (1 L. D., 25) ; overruled, 7
L. B.. 94.
McGrann, Owen (5 L. D.,10) ; overmled, 24 L. D.,
502.
McKemau v. Bailey (16 L. D., 368) ; overruled, 17
L. D., 494.
McNamara et al. v. State of California (17 L. D.,
296) ; overruled. 22 L. D., 666.
* The cases marked with a star are now authority. See Hessong v. Burgan, 9 L. t>., 353.
CIRCULARS AND INSTRUCTIONS CITED, CONSTRUED, ETC. XIX
State of California v. Pierce (3 C. L. O., 118);
modified, 2 L.D., 854.
State of California v. Smith (5 L. D., 543) ; over-
mled, 18 L. D., 343.
Strieker. Lizzie (15 L. D., 74) ; overruled, 18 L. D.,
283.
Sweeten v. Steranson (3 L. D., 249) ; overruled, 3
L.D., 248.
Taft V. Chapin (14 L. B., 593) ; overmled, 17 L. D.,
414.
Talkington's Heirs v. Hempfling(2 L. D.. 46);
overmled, 14 L. D., 200.
Tate, Sarah J. (10 L. D., 400) ; overruled, 21 L. D.,
211.
Taylor v. Yatea et aZ. (8 L.D., 270) ; reversed on
review. 10 L. D., 242.
Traugh v. Ernst (2 L. D., 212) ; overmled, 3 L. D.,
218.
Tripp V. Stewart (7 G. L. O., 39) ; modified, 6 L. B.,
795.
Tapper v. Schwarz (2 L. D., 823) ; overmled, 6 L.
D.,623.
Tuner v. Lang (t C. L. 0.,61) ; modified, 5 L. D.,
256.
Turner v. Cartwright (17 L. D., 414) ; modified, 21
L.D.,40.
United States v. Bush (13 L. D., 529) ; overruled,
18L.D.,441.
Vine, James (14 L. D., 527) ; modified, 4 L. D., 622.
Walker v. Prosser (17 L. D., 85); reversed on re-
view, 18 L. D., 425.
Walters, David (15 L. B., 136) ; decision revoked,
24L.D..58.
Waterbouse, William W. (0 L. D., 131) ; overruled,
18L.B.,586.
Watson, Thomaa E. (4 L. B., 160) ; modified, C L.
D.,71.
Weber, Peter (7 L. B., 476) ; overruled on review,
9 L. B., 150.
Werden v. Schlecht (20 L. B., 523) ; overruled. 24
L. B., 45.
Wiokstrom v. C^alkins (20 L. B., 459) ; modified, 21
L. B., 568.
Wicketrom v. Calkins (20 L. B., 459) ; overruled,
22 L. B., 392.
Wilkins, Benjamin C. (2 L. B., 120); modified, 6
L. B., 797.
Willamette Valley and Caacade Mountain Wagon
Road Co. V. CJhapman (13 L. B., 61) ; overruled,
20 L. B., 259.
Willingbeck, Christian P. (3 L. B., 383) ; modified,
5L.Bm408.
TABI.E OF CIRCTJI^ARS A:NT> INSTRUCTIONS.
Page.
May 27, 1891.— State selections 548
Febmaiy 23, 1897.— Timber cutting 167
February 25, 1897.-011 lands 183
February 25, 1897.— Greer County, Okla. . 184
March 11, 1897.— Mining claim; notice... 266
March 22, 1897 — Mississippi swamp list
No. 7; act of February 17, 1897 267
April 9, 1897.— Railroad selections, non-
mineral proof 321
May 10, 1897.— Railroad selections, non-
mineral proof 416
Page.
June 5, 1897.— Unearned fees and onoffioial
moneys B06
June 17, 1897.— State selections 553
June 25, 1807.- Commissioners of circuit
courts and U. S. Commissioners 664
June 29, 1897.— Timber cutting; exporta-
tion 587
June 30, 1897.— Survey of forest reserves . 588
June 30, 1897.— Forest reserves 589
CLKCUIiARS ANjy INSTRUCTIONS CITED, CONSTRUED, ANB
MOBIFIEB.
Page.
Jnne 30, 1882.— Timber cutting; 1 L. B.,
697 100
July 31, 1882.— Coal landa, par. 13 ; 1 L. B.,
689 11
▲ngnat 7, 1882.— Timber cutting; 1 L. B.,
60O 170
October 12, 1882.— Timber cutting; 1 L.
B..696 170
May 31, 1884.— Indian occupancy ; 3 L. B.,
71 414
August 4, 1886.— Indemnity selections ; 4
L.B.,90 371,447 !
December 15, 1885.— Attorney, sec. 13; 4
L.B., 297. modified 45
May 7, 1886.— Timber cutting; 4 L. B.,
521 170
August 5, 1886.— Timber cutting; 5 L. B.,
129, modified 170
Page.
October 26, 1887.— Indian occupancy; 6 L.
B.,541 414
June 27, 1887.— Timber culture, par. 22; 6
L.B., 284 449
March 8, 1889.— Additional homestead; 8
L.B., 314 24
September 15, 1890.— Employes of Land
Bept.; IIL.B.,96 894
June 3, 1891.— Alaskan lands, par. 13 ; 12
L.B., 583 >. 646
December 10, 1891.— Mining regulations ;
par. 29, amended 191,266
February 6, 1892.— Repayment, Gen. Cir.,
p. 86 257
March 30, 1893.— Motions for review; 16
L.B.,834 85
March 31, 1893.— Oklahoma townsite ; 16
L.B.,341 366
XX
ACTS OP CONGRESS CITED AND CONSTRUED.
Page.
July 0, 1894.— R. R. and State aelectiona Id
mineral belt; 10L.D., 21 821,416
October 16, 1894.— Soldiers' additional
homestead; 19L.D.,302 502
November 22, 1894.— Selection of desert
lands by States, par. 4 ; 20 L. D.. 440 564
November 30, 1894.~Oklahoma townsite ;
19L.D., 334 867
]£ay 14, 1895.— Unearned fees and nnoffi-
cialmoneys; 23L.D.,572 606
Page.
May 18. 1805.— Kickapoo Indian lands; 20
L.D., 470 01
October 30, 1805.— ftepajnment, Gen. Oir.. 255,257
Jntae 15, 1806.— Indian allotments; 22 L.
D..709.. 425
December 26, 1806.— Uneameii fees and
unofficial moneys : 23 L. D., 573 505
ACTS OF CONGIIE88 CITED AND CONSTRUED.
Page.
February 20, 1811 (2 Stat., 641), sec. 5, pro-
ceeds of Louisiana lands 231
Mars, 1822 (8 SUt, 700), Florida private
claims 206
March 3, 1833 (3 Stat., 754), Florida pri-
vate claims 206
February 28. 1824 (4 Stat., 6), Florida pri-
vate claims 206
January 12, 1825 (4 Stat., 80), repayment. 540
May 20, 1826 (4 Stat.. 179), school land. ... 106
February 8, 1827 (4 Stat., 202), Florida pri-
vate claims 207
May24, 1828(4Stat., 305),Ohlocanal grant. 522
May 26, 1830 (4 Stat., 405), Florida private
claims 205
July 7, 1838 (5 Stat., 802). Perrine grant. . 100
February 18, 1841 (6 Stat., 810), Perrine
grant Ill
September 8. 1841 (5 Stat., 453), proceeds
of public lands 230
March 1. 1845 (5 SUt., 707). Texas 378
March 3, 1845 (5 Stat., 788), Florida school
grant 151
December 29, 1845 (0 Stat., 108), Texas ... 373
July 5, 1848 (9 Stat., 245), Texas 373
March 2, 1849 (9 Stat., 352), Louisiana
swamp grant 231
March 3, 1849 (9 Stat., 895), sec. 3, Interior
Dept 107
September 27, 1850 (9 Stat., 486), sec. 5,
donation 5
September 28, 1850 (0 Stat., 519), swamp
grant 26,68,147,231,522
February 14, 1858 (10 Stat, 158), donation . 5
March 2, 1853 (10 SUt., 172), sec. 20, school
land 107
March 3, 1853 ( 10 Stat., 244), school laud. . 15
July 22, 1854 (10 Sut., 808), sec. 8. private
claims 2
August 3, 1854 ( 10 SUt., 346) certification . 228,
864,896
January 22, 1855 (12 Stat., 927) Indian
treaty 509
March 2, 1855 (10 SUt, 634), swamp indem-
nity 231
March 3, 1855 (10 SUt., 701), bounty land
warrant 480
May 15, 1856 (11 SUt, 0), sec. 4, Cedar
Rapids B. R. grant 125
June 8. 1856 (11 Stat., 20), C, St P., M. &
O. By. grant 9,256
Pago.
March 8, 1857 (11 Stat., 195), St. Paul and
Pao. grant 340
March 3, 1857 (11 SUt, 251), swamp selec-
tions 163,231
February 14, 1859 (11 SUt., 384), salt
springs 116
February 28, 1859 (11 SUt. 885),, school
land .'.... 12,107,582
February 28, 1850 (11 Stat., 887), repay-
ment 540
June 22, 1860 (12 SUt, 85), privaU oUims . 206
December 17, 1860 (12 SUt., 124), salt
springs 116
March 2, 1861 (12 SUt., 239), DakoU or-
ganic act 628
November 15,1861 (12 SUt., 1101), Indian
treaty 613
July 1, 1862 (12 SUt, 489), sec. 14, Sioux
City & Pao. grant 29
May 5, 1864 (13 Stat., 64), Lake Superior
and Miss. R. R. grant 320
May 6, 1864 (13 SUt, 66), Wis. Central
grant 256
sec. 4, Wis.
H.R.grant. 0
May 12, 1864 (13 SUt., 72), R. R. grant. ... 168
June 2, 1864 (13 SUt., 95), sec. 4, Cedar
Rapids R. R. grant 135
July 2. 1864 (13 SUt. 356), sec. 17, Sioux
City & Pao. grant 29
July 2, 1864 (13 SUt, 365), Nor. Pao. grant. 839
sec. 3 820
seo. 6, Nor. Pac.
grant 160
July 22, 1866 (14 SUt., 338), R. R. ^rant. . 274
July 23. 1866 (14 SUt, 210), St. Joe &
Denver grant 64
July 23, 1806 (14 SUt, 218), seo. 4, CaL
swamp land 27,69
July 25, 1866 (14 SUt, 239), Oregon & Cal.
R.R 4
sec. 2, Oregon
and Califor-
nia grant.. 381
July 27,1866 (14 SUt, 204), sec. 3. South-
em Pao. grant 173
February 25, 1667 (14 SUt, 409), wagon-
road grant 202
February 27, 1807 (15 SUt, 581), Indian
treaty 518
ACTS OF CONGRESS CITED AND CONSTRUED.
XXI
Page-
March 2, 1887 (14 Stot., 544), private
olaimis 208
ApTn28, ises (15Stat , 68S), Indian treaty. 529
April 10, 1869 (16 Stat.. 55), Osage ceded
landa 6
April 28, 1870 (16 Stat, »3). Nebraska .... 374
March 3, 1871 (16 SUt.,579), sec 23, Sonth-
em Pac. grant 173
March 3, 1871 (16 Stat, 588), St. P., M. and
M. K.It. grant 141.195,227
JnnelO, 1872 (17 Stat, 378), private claims. 208
June 22, 1874 (18 Stat.. 194), R. R. iodem.
nity 381,645
Jnne 22, 1874 (18 Stat., 203), St. P.. M.and
M. grant 226
March 3, 1875 (18 Stat, 482), R. R.rightof
way 460
April 21, 1876 (19Stat,35). sec. l.R.R. with-
drawals 121
sec. 2 110,818
Aagnst 11, 1876 (19 Stat, 27), Osage ceded
lands 7
January 12. 1877 (19Stat. 221), salinelands 116
March 3, 1877 (19 Stat., 377), desert land . . 308,
4%, 467, 577
March 3. 1877 (19 Stat.. 382), townsite 261, 530
Jane 3^ 1878 (20 Stat, 88), timber cutting. . 167
JnneS, 1878 (20 Stat, 80) , timber and stone
act 88,144,167,310,352,360,376,426
Jnne 14 1878 (20 Stat.. 113). timber culture 280, 448
May 14, 1880 (21 SUt, 140), sec. 1, relin-
qnishment 495
sec.2oonte8t-
ant.... 90,221,295
sac. 3, hd. set-
tler... 181,183,523
May 28, 1880 (21 Stat, 148), Osage land. . . 68
Jane 8, 1880 (21 SUt., 166), inaane entry-
man 495
Jnne 15. 1880 (21 Stat, 287), sec 2, home-
stead 36,58,229
Jane 16, 1880 (21 Stat., 287), sec. 2, repay-
ment 247, 255, 309, 408, 537, 539, 542. 575
March 3, 1881 (21 Stat.. 511), hd., residence 524
July 4, 1884 (23 SUt, 89). Mille Lac lands . 490
Jnly 4, 1884 (23 SUt., 96), Indian home-
ateod 216
Jnly 5, 1884 (28 SUt, 103), aband. mil. res. 271, 336
March 3, 1885 (23 SUt, 340), Indian lands. 826
April 17, 1885 (23 SUt., 844), Crow Creek
laaidB 529
Febmary 8, 1887 (24 SUt., 388). Indian
allotmenU 214,311,424,511
Pebroary 8. 1887 (24 SUt, 388), sec. 4 264
March 3, 1887 (24 Sut, 550), reimbnrse-
menU for railroad landa 64
March 3, 1887 (24 SUt, 566), a^ustment of
R.R.granto 441 I
sec. 5 42,
164,172,256,409,482
October 19, 1888 (25 SUt. 612), Indian
lands 284
January 14, 1880 (25 SUt, 642), Mille Lac
lands '. 490
January 14, 1889 (25 SUt.. 642), sec. 5 517
Paoa
February 22, 1889 (25 SUt, 676), seca. 10
and 11, HchoollaDdH 12,106,548,553
February 22, 1889 (25 SUt., 676), sees. 16
and 18, SUU selections 486
February 22, 1889 (25 SUt., 676), «ecs. 18
and 19 549
March 2, 1889 (25 SUt., 888), sec. 8, Sioux
Indian lands 330
March 2. 1880 (25 SUt, 888), sees. 16 and 23,
Indian lands 528
March 2, 1889 (25 SUt., 854), sec. 2. second
entry 279,561
March 2, 1889 (25 SUt., 854). sec. 3, leave
of absence 79
March 2, 1889 (25 Stat., 854), sec. 6, add'l
hd 28.409
March 2, 1889 (25 SUt., 980), sec. 14. Okl.
land 301
May 2, 1890 (26 SUt., 81) , sec. 20, Okl. hd . 242
sec. 21, commuU-
tion 186,305
sec. 22, commn-
Ution for town
site 186
sec. 23. highway
reser ration . . . 160
May 14, 1890 (26 SUt, 100), Okl. town sites 366,
470.580,583
May 26. 1890 (26 Stat., 121), preUminary
affidavit and final proofs 307,443
June 20, 1 800 (26 SUt, 169) , resorvoir lands 465
Jnly 3, 1890 (26 SUt, 215), sec. 11, admis
sionof Idaho 272
September 20, 1880 (26 SUt, 496), forfeiture
R • R •
lands.. 10
sec. 3.... 406
sec. 4 434
Febr nary 13, 1891 (26 SUt , 749) , Okl. lands . 302
January 12, 1891 (26 SUt, 712), Southern
Pac 548
February 28, 1891 (26 SUt., 794), Indian
allotmenU 214,311,424
February 28, 1891 (26 SUt., 796), school
lands 12,15,106,423.548,553
March M. 1891 (26 SUt.. 854), private claims. 1
March3, 1891(26Stat.,98».1016),Okl. lands. 92
sec. 16,
Okl. hd. 242
Manh 3. 1891 (26 SUt, 1093), timber out-
ting 505
March 3, 1891 (26 SUt., 1095), sec. 1, timb«>r-
culture en-
try.... 387,434,448
sec. 2, desert
land 100,
306,435,406
sec. 5, hd. en-
try 80,
157, 242. 343
sec. 6, com-
muted hd.. 852
sec. 7, con-
firmation . . 53,
58. 139, 493
XXII
REVISED STATUTES, CITED AND CONSTRUED.
Page.
March 3, 1881 (26 Stat., 1095), flees. 12, 18,
and 14,
Alaska.... 312,
314,545
sees. 18 and
21. right of
way 56,5C0
sec. 24. for-
est reserre. 588,589
June 17, 1802 (27 Stat., 52), Klamath Res-
e ry ation 26
August 4, 1892 (27 SUt.. 848), timber and
stone land 167.403
March 3, 1893 (27 Stat., 593), timber cul-
ture 448
sold addl . 292
March 3, 1893 (27 Stot., 612), Cherokee Out-
let 286,421
December 19. 1883 (28 Stiit., 576), Mille Lac
lands 489
Februar7l0,1884(28Stat.,87)add'Ihd... 91 '
J nne 6, 1884 (28 Stat., 987), for the relief of
Wesley Montgomery 390 I
July 26, 1894 (28 Stat., 123), extension of ,
time on entries 398,435
August 4, 1894 (28 SUt., 226), extension of
timeonentries 487
August 15, 1894 (28 Stat., 286), alienation
of IndianlandH 511
August 18, 1884 (28 Stat., 372-422), desert
lands 526
August 18, 1894 (28 Stat.. 372), sec. 4, State
selections of desert land 66
Page.
August 18, 1894 (28 Stot.. 384), survey;
Stotti selections 122
August 18, 1894 (28 SUt.. 397), solds.
addl 35,291,502
August 23, 18^ (26 Stat., 401), aban'dmil.
res 268,835
January 26. 1886 (28 Stot., 641), patent for
Indian lands 214,285
February 26, 1886 (28 Stot., 687), isolated
trrct 286
March 2, 1885 (28 Stot., 888), OkL school
laud 91
January 28, 1886 (28 Stot., 4), railroad
lands 406
February 26, 1896 (29 Stot., 17), Chippewa
pine lands 517
March 4, 1896(29 Stot.. 43), timber culture,
final proof 448
May 14, 1896 (29 Stat., 120), right of way. 560
May 26, 1896 (29 Stot., 184^, sec. 9, comr s
of circuit court 564
June 3, 1896 (29 Stot., 187), commuted hd. 351
June 11 , 1886 (28 Stot., 434), snr^'ey 123
January 18, 1887 (28 Stot., 490). Greer
County, Okl 184
February 11 , 1897 (29 Stot., 526), oil lands. 183
February 17, 1887 (28 Stot., 534), Miss.
swamp list 267
February 24, 1887 (28 Stot, 595), forest
fires 590
June 4, 1897 ( ), forest reser-
vations 588,589
REVISEB STATUTES, CITEB AND CONSTRUED.
Page.
Section 441 107
Section 452 398
Section 453 122
Sections 460-61 415
Section 1839 529
Section 1851 529
Section 2218 122
SecUons 2223-34 385
Section 2238 66,544
Section 2264 578
Section 2265 523
Section 2275 12,15,106,548,582
Section 2276 12,106,423,548
Section 2289 154,243,250,343
SecUon2280 80,157
Section 2291 80,157,183,185,400,502
Section 2297 522
Section 2301 80
Section 2304 39,475,561
Section 2305 502
SeoUon2306 36,291,502
Page.
Section 2307 473,562
Section 2308 38.562
Section 2318 176,574
Section 2318 176
SecUon2324 575
Section 2325 20,101,395
Section 2332 18
Section 2347 11
Section 2348 48
Section 2350 48
Section 2357 160
Section 2362 1 257,538,575
Sections 2380-81 406
Sections 2887-9 186,580
Sections 2388-8 258
Section 2448 (act of Augusts. 1K54) 228,
364,396,486
Section 2456 286
Section 2461 168
Section 2488 27,69
Section 8689 540
RULES OF PRACTICE CITED AND CONSTRUED.
XXlll
BUIiES OF PRACTICE CITBB ANT) COlSrSTBUED.
Rule 9..
Rale 14.
Rale 22.
Role 35.
Page.
W
861
r 88
5M
Ra]e48 244,385
Rule 54 90
Rule56 90
Role 73 203
Rule 76 402
Role 79 388
Role 82 231
Rule85 386
Rale 86 277
Rale 87 823,472
Rale88 231,490
Rale 90 231
Role 93 230,323,402
Bale 94 490
Rale 96 490
Rale 104 277
Rule 106 277
DECISIONS
RRLATING TO
THE PUBLIC LA^ISTDS
private land crjlaims-trkaty reservation.
Joseph Farb.
By the terms of the treatieH between tht^ United States and the Repablic of Mexico,
all lands embraced within the boundarieH of Mexican or Spanish grants^ at thd
date said treaties were ratified, were placed in a state of reservation for the
ascertainment of rights claimed under said grants, and by the act of March 3,
1891, said reservation is continae<l in force, and will so remain until final action
is taken on the respective claims or grants affected thereby.
Secretary Francut to the Commissioner of the General Land Office, Jan^
(I. H. L.) uary 8, 1897. ( W. M. W.)
The case of Joseph Farr has been considered on his appeal from
your office decision of August 21, 1895, rejecting his application to
enter under the homestead law the E. J of the NW. \, and lots 1 and
2 of Sec. 30, T. 9 N., R. 3 E., Santa Fe, New Mexico, land district.
On September 12, 1894, Farr made an application to enter the land
in question under the homestead law.
On September 14, 1894, the register and receiver rejected said appli-
cation, for the reason —
that the land applied for was withdrawn fVom entry on June 2, 1886, by the Hon.
Commissioner, it being within the limits of the Diego Padilla, or El Tago grant.
Farr api>ealed. In his appeal he alleged
that the said tract of land is not now within the limits of the said Diego Padilla, or
£1 Tago grant, because the said grant claim was rejected by the United States court
of private land claims, on the 8th of September, 1894, prior to the filing of said
homestead application.
It appears from a certified statement of the deputy clerk of the court
of private land claims that on the 8th day of September, 1894, said
private land claim was rejected by that court, and that an appeal from
the judgment of said court was taken to the supreme court of the
United States, where the case was pending when your office decision
was rendered affirming the judgment of the local officers.
Fair appeals.
10671— VOL 24 1 1
2 DECISIONS RELATING TO THE PUBLIC LANDS.
The appellant alleges that the land applied for is not now within the
limits of the Diego Padilla or El Tago grant, for the reason that said
grant was rejected by the court of private land claims on September
S, 1894.
Your ofQce found that :
The land withiu the claimed limits of the El Tago graut is in a state of statutory
TeservatloD, to satisfy the claim, under the provisions of section 8 of the act of July
22, 1854. (10 Stat., 308.)
Said section 8 provided that:
Until the final action of Congress on such claims, all lands covered thereby shall
be reserved from sale or other disposal by the government, and shall not be subject
to the donations granted by the provisions of this act.
Thtis was clearly a statutory reservation, covering all lands situated
in the territory acquired from Mexico, claimed under Mexican or
Spanish grants; it was to remain in force ** until the final action of
Congress on such claims.'^
By act of March 3, 1891 (26 Stat., 854), Congress established the
court of private land claims, with jurisdiction to hear and determine
all cases or claims presented by any person or persons or corporation
or their legal representatives,
claiming lands within the limits of the Territory derived by the United States from
the Republic of Mexico and now embraced withiu the Territories of New Mexico,
Arizona, or Utah, or within the States of Nevada, Colorado, or Wyoming, by virtue
of any such Spanish or Mexican grant, concession, warrant, or survey, as the United
States are bound to recognize and confirm, by virtue of treaties of cession of said
country by Mexico to the United States, which at the date of the passage of this
act have not been confirmed by act of Congress, or otherwise finally decided upon
by lawful authority, and which are not already complete and perfect.
The purpose of Congress in passing this act evidently was to pro-
Tide a special tribunal to pass upon, settle, determine and adjudicate
every claim that existed, or could properly be made, under any and all
grants made by Spain or Mexico to lands within the territory specified
in said act, prior to its acquisition by the United States from Mexico.
By the 7th section of the act it is provided, inter alia^ that:
The said court shall have full power and authority to hear and determine all
questions arising in cases before it relative to the title to the land the subject of
such ease, the extent, location, and boundaries thereof, and other matters connected
therewith fit and proper to be heard and determined, and by a final decree to settle
and determine the question of the validity of the title and the boundaries of the
grant or claim presented for adjudication, according to the law of nations, the stipu-
lations of the treaty concluded between the United States and the Republic of
Mexico at the city of Guadalupe-Hidalgo, on the second day of February, in the
year of our Lord, eighteen hundred and forty -eight, or the treaty concluded between
the same powers at the city of Mexico, on the thirtieth day of December, in the
year of our Lord, eighteen hundred and fifty-three, and the laws and ordinances of
the government from which it is alleged to have been derived, and all other ques-
tions properly arising between the claimants or other parties in the case and the
United States.
DECISIONS RELATING TO THE PUBLIC LANDS. 3
Section 9 of the act provides that the party against whom the court
shall decide in any case:
Shall have the right of appeal to the supreme court of the United States, such
appeal to be taken within six months from date of such decision, and in nil respects
to be taken in the same manner and upon the same conditions, except in respect of
the amount in controversy as is now provided by law for the taking of appeals from
decisions of the circuit courts of the United States. On any such appeal the supreme
court shall re-try the cause, as well the issues of fact as of laW; and may cause tes-
timony^ to be taJien in addition to that given in the court below, and may amend the
record of the proceedings below as truth and justice may require; and on such
re-trial and hearing, every question shall be open, and the decision of the supreme
court thereon shall be final and conclusive. Should uo appeal be taken as aforesaid,
the decree of the court below shull be final and conclusive.
The act contains nineteen sections, in which full and specific pro-
visions are made for determining all the rights of all claimants under
Mexican or Spanish grants, in the States and Territories named. The
15th section expressly repeals section 8 of the act of July 22, 1854,
referred to in your office decision as reserving the land involved. The
repeal of said section is without any qualification and goes to the
entire section, "and all acts amendatory or in extension thereof, or
supplementary thereto.'' It follows that your office erred in holding
that the land in question is in a state of statutory reservation under
the act of 1854, supra.
However, it does not necessarily follow that your office decision must
be reversed; for, if the conclusion reached was the correct one under
the law and record presented, then it should be affirmed.
The question to be determined is, whether the land in question was
properly subject to entry under the homestead law at the time Farr
made his application.
As long as the 8th section of the act of 1854, supra^ was in force,
there can be no question but what this land was reserved. It should
be borne in mind that in enacting said section Congress undertook to
provide a manner whereby it was intended to ascertain the origin,
nature, character and extent of all claims to lands under the laws,
usages, and customs of Spain and Mexico. The surveyor-general for
IN^ew Mexico, under instructions of the Secretary of the Interior, was
required to make a full report of all such claims as originated before
the cession of the territory to the United States by the treaty of
Guadalupe-Hidalgo.
liy the terms of said treaty the United States bound itself to protect
all claimants having such claims in their rights, and it may be that the
express reservation made by section 8 of said act was placed therein
more in the nature of a precaution than as a necessity. Whatever may
have been the purpose of Congress in making said reservation, it is
clear that all lands embraced within the claimed limits of grants made
by Mexico or Spain prior to said treaty were in a state of reservation
under ^he terms of the treaty itself, independent of any reservation
that might be made after such treaty was duly ratified. It follows that
4 DECISIONS RELATING TO THE FUDLIO LAND&
the repeal of the section of the statute containisg the reservation
would not have the effect of releasing lands reserved under treaty obli*
gations from such reservation.
As has been shown, the act of March 3. 1891, provided for a special
tribunal to determine the rights of claimants to lands included within
grants claimed to have been obtained firom Mexico or Spain prior to the
treaty of Ouadalupe-Hidalgo. Congress invested said tribunal with
full authority to determine every question, subject to the right of a])i)eal
to the supreme court of the United States, respecting the validity,
extent and scope of all unadjusted claims to lands included in Spanish
or Mexican grants. The title, validity and boundaries of such grants
or claims were to be adjudicated ^' according to the law of nations, the
stipulations of the treaty concluded between the United States and the
Republic of Mexico at the city of Guadalupe- Hidalgo," on February 2,
1848, and the treaty between the same powers on December 30, 1853.
It is, therefore, held that under the above named treaties all lands
embraced within the boundaries of Mexican or Spanish grants or claims
at the date said treaties were duly ratified were by said treaties placed
in a state of reservation; that said reservation has been coutiuued in
force by the act of March 3, 1891, supra; that such reservation will con-
tinue in force until after the judgment of said court becomes fiual and in
all respects complete.
Farr's application to enter the land in question, having been made at
a time when said land was in a state of reservation and not subject to
entry, was rightfully rejected.
The conclusion of your office in the decision appealed from was cor-
rect. The judgment appealed from is accordingly affirmed.
RATLROAn GRANT— LAND EXCKPTED-BONATION CliAIM.
Oregon and California R. B. Co. v. Crocker.
A donation claim of a married man embracing more than three hundred and twenty
acres is not void, bnt voidable only, and land inolnded therein, at the time whea
a railroad grant becomes effective^ is excepted from the operation of the grant.
Secretary Francis to the Gammissianer of the General Land Office, Jan-
(I. H. L.) uary 8, 1897. (W. A. E.)
The SE. J of the SW. i, and the fractioDal SE. J of the SE. J (or lot 1 )
of Sec. 7, T. 1 S., R. 2 W., Oregon City, Oregon, land district, are within
the primary limits of the grant made by act of July 25, 1866 (14 Stat.,
239), to aid in the constrnction of the Oregon and California Railroad,
and lie opposite the portion of said road that was definitely located
January 29, 1870.
March 30, 1880, said tracts were listed by the railroad company, per
list 13.
DECISIONS RELATING TO THE PUBLIC LANDS. 5
March 23, 1885, William L. Crocker made homestead entry for the
8E. :J of the SW. J of said section 7, and this entry was commuted to
cash on December 4, 1886.
By your offire letter of March 19, 1895, the railroad company's list
"iras held for ciincelhition in so far as it covered the tracts above
described, for the reason that said tracts were inclu<led, at the date of
the definite location of the road, in the uncanceled donation claim
of one Jacob Miuter.
From this action the company has appealed.
Tlie records show that on November 30, 1855, Jacob Minter filed
notification under section 5 of the Oregon donation net of Sejitember
27, 1850 (9 Stat, 486), as amended by the act of February 14, 1853 (10
Stat., 158), for these tracts in section 7, together with adjoining lands
in section 1^, the whole being estimated at ''about 320 acres/' the
amount of laud that a married man and his wife could take under sec-
tion 5 of said act as amended; that as a matter of fact said donation
claim covered more than the legal three hundred and twenty acres, but
that it remained intact up to December 17, 1876, when, at the request
of the heir of said Minter, the tracts in section 7 were excluded, and
patent issued for the remainder.
The railroad company contends:
1. That a donation notification does not except the land covered
thereby from the operation of the grant to said company.
2. That section 5 of the donation act confined a married claimant to
three hundred and twenty acres, one hundred and sixty for himself and
one hundred and sixty for his wife, and as Minter's claim covered more
than three hundred and twenty acres, it was invalid as to the excess and
the company's grant took effect upon the excess.
It has recently been held by tbe Department that land embraced
within a notification of a donation claim, at the time when a railroad
grant becomes effective, is excepted from the operation of said grant,
thoQgh claims of such character are not si)ecifically named in the
excepting clause of the grant. Oregon and California B. E. Co. r.
Kuebel, 22 L. D., 308^ Oregon and California R. R. Co. v. Bagley, 23
L. D,, 392.
This ruling disposes of the first contention of the railroad company,
and renders further comment thereon unnecessary.
In the case of John J. Elliott, 1 L. D., 303, it was held that the filing of
the original notification was an ipso facto segregation of tbe tract there
described from the lands contiguous thereto. A donation notification
had the effect, therefore, of an entry in the matter of segregating the
land covered thereby.
Tbe Department has held that a homestead entry exceeding one hun-
dred and sixty acres is voidable only, and while of record is an appro-
priation of the land. Charles Hoffman, 4 L. D.; 92; Legan v, Thomas
et al.^ id.y 441.
6 DECISIONS RELATING TO THE PUBLIC LANDS.
It follows tbat Minter's donation notification, during the time it
embraced more than the legal three hundred and twenty acres, was-
voidable only, and was an appropriation of the entire amount of land *
covered thereby.
On January 29, 1870,. when the grant took effect, these tracts in sec*
tion 7 were covered by Minter^s notification, and consequently were
excepted from the operation of the grant.
Your office decision is affirmed.
OSAGE CET>ED LANDS— FORFEITURE OF ENTRY.
Mars Taylor.
The Department has authority to cancel entries of Osage ceded lands where defnnlt
exists as to the payment of the purchase price.
Secretary Francis to the Commissioner of the General Land Office^ Jan-
(I. H. L.) uary 8, 1897. (W. C. P.)-
I am in receipt of your letter of October 10, 1896, asking for instTuc*
tions as to the proper procedure in the matter of the purchase by Mars
Taylor of the NW. i of the S W. J of Sec. 33, T. 31 S., R. 18 E., Kansas,
being a part of the body known as the ^^ Osage ceded lands.''
By the treaty of September 29, 1865 (U Stat, 687), the Osage In<liana
granted and sold to the United States certain lauds in Kansas for
which the United States agreed to pay the sum of 8300,000 to be placed.
to the credit of said Indians in the Treasury and interest to be paid,
thereon at five per centum per annum. Said treaty further proxided:
Said lands shall he surveye<l and sold, nnder the direction of the Secretary cif the^
Interior, on the most advantageons terms for cash, as public lands are surveyed and
sold under existing laws including any act granting lands to the State of Kansas in
aid of the construction of a railroad through said lands but no pre-emption claim or
homestead settlement shall be recognized; and after reimbursing the United Stated,
the cost of said survey and sale, and the said sum of three hundred thousand dollars
placed to the credit of said Indians, the remaining proceeds of sales shall be placeck
in the Treasury of the United States to the credit of the ^'civilization fund'' to be
used, under the direction of the Secretary of the Interior, for the education and
civilization of Indian tribes residing within the limits of the United States.
By the second article of said treaty certain other lands were ceded to.
the United States to be held in trust for said Osage Indians and sur-
veyed and sold for their benefit.
By joint resolution of April 10, 1869 (16 Stat., 55), it was provided
that any bona fide settler residing upon any portion of the lands by
virtue of the first and second articles of said treaty being a citizen of
the United States or having declared his intention to become a citizen
should be entitled to purchase the same in quantity not exceeding onc^
hundred and sixty acres, at on^ dollar and twenty-five cents per acre,
within two years from the date of said resolution under such rules and
regulations as may be prescribed by the Secretary of the Interior.
DECISIONS RELATING TO THE PUBLIC LANDS. 7'
The next legislation affecting these lands is fonnd in the act of
August 11, 1876 (19 Stat* 27). It was there provided by section one
that any bona fide settler resifling at the time of completing his or her entry ^ as here^
inafter provided, upon any portion of the land sold to the United States, hy virtue
of the first article '' (of said treaty of 1865; who is a citizen of the United States, &c.)
''shall be and hereby is, entitled to purchase the same in quantity not to exceed
one hundred and sixty acres at the price of ouo doUar and twenty-five cents ]>er acre
'vrlthin one year from the passage of this act, under such rr.les and regulations ai
may be prescribed by the Secretary of the Interior and on the terms hereinafter
provided.
The second section of said act makes provision for the protection of
persons who had purchased any portion of said lands from railroad
companies claiming the same.
Section three prescribes the terms of purchase, and reads as follows:
That the parties desiring to make entries under the provisions of this act who will,
within twelve months after the passage of the same make ptiymentat the rate of
one dollar and twenty-five cents per acre, for the land claimed by said purchaser,
nnder snch rules and regulations^ an the Commissioner of the General Land Office
may prescribe, as follows, that is to say : said purchaser shall pay for the lund he or
she is entitled to purchase one-fourth the price of the land at the time the entry is
made, and the remainder in three annual payments, drawing interest at the rate of
five per centum per annum, which payment shall be secured by notes of said pur-
chaser, payable to the United States; and the Secretary of the Interior shall with-'
hold title until the last payment is made; and the Secretary of the Interior shall
cause patents to issue to all parties who shall complete their purchases under the,
provisions of this act, and if any claimant fails to complete his or her entry at the
proper land office within twelve months from the passage of this act, he or she shaU
forfeit all right to the land by him or her so claimed, except in cases where the land
is in contejjit: Provided further y That nothing in this act shall be construed to pre-
vent any purchaser of said land from making payment at any time of the whole or
any portion of the purchase money.
Section four provides for entries on said lands for town sites. Section-
five provides for the re-establishment of entries theretofore canceled by
the Secretary of the Interior. Section six reads as follows:
That all declaratory statements made by persons desiring to purchase any portion
of said land under the provisions of this act, shall be filed with the register of the
proper land office within sixty days after the passage of the same: Providedy howeveTf
That those who may settle on said land after the passage of this act shall file their
declaratory statement within twenty days after the settlement, and complete their
pnrehaae under the provisions of this act within one year thereafter.
Section seven reads as follows :
That nothing in this act shall be so construed as to prevent said land from l:eing
taxed under the laws of the State of Kansas as other lands are or may be taxed in
said State from and after the time the first payment is made on said land, according
to the provisions of tiiis act. - . .
Section eight, the last of said act, provides for the purchase by cer-
tain railroad companies of certain tracts.
On October 26, 1876, instructions v[ere given to the local officers
calling attention to the various provisions of said law and telling them
of their duties thereunder.
8 DECISIONS RELATING TO THE PUBLIC LANDS.
The right given to settlers to parchase these lands is in the nature
of a pre-emption right, and by parity of reasoning the authority of this
Department to declare and enforce a forfeiture for failure of the pur-
chaser under this law to comply with the provisions thereof would be
the same as in pre emption casesi. While the law under consideration
contains no express declaration of forfeiture for default in making the
deferred payments, it does contain the provision that — "the Secretary
of the Interior shall withhold title until the last payment is made."
The contract was one of sale, by which the United States agreed to
convey the title upon certain conditions, one of which was the payment
by the purchaser of the specified price within three years from the date
of his entry. The failure of a purchaser to comply with the obligations
he had assumed would relieve the United States of all obligations
under such contract and would render the claim of the defaulting pur-
chaser liable to a declaration of forfeiture. Furthermore, the authority
to declare a forfeiture of sach claims, and to enforce it by cancellatiou
of the entries, is necessary to a proper administration of the law direct-
ing the sale of these lands.
The provisions of this law are very like those of the law providing-
for the sale of the Otoe and Missouria lands, of which my iiredecessor.
Secretary Smith, after discussing the question, said (23 L. D., 143) :
I am fully persuaded, therefore, of the power of the Secretary of the Interior to
cancel the entries of these purchasers of Otoe and Missouria lands who are in default
in the deferred payments.
So in the case of Osage ceded lands this Department has authority
to cancel entries where default exists as to the payment of the purchase
price.
It is, and should be, the policy to allow the purchaser of public lands
opportunity to cure his default before final action is taken uiion his
claim, and in these cases notice should be given the purchaser, by serv-
ice upon him personally if he can be reached in that way, and, if not,
then by publication in such manner as will most likely reach him, that
his entry will be canceled unless he shall, within some reasonable time,
to be specified, complete his purchase.
Your attention is also called to the fact that said law specifically pro-
vides that nothing therein ^^ shall be so construed as to prevent said
land from being taxed under the laws of the State of Kansas." In
view of this provision, you should ascertain whether the land has been
sold for taxes, and at the same time, whether any transfer of any kind
has been made. The present claimant of the land should be served
with notice of the contemplated cancellation of the entry.
DECISIONS RELATING TO THE PUBLIC LANDS. 9
repayment-common granted limits.
Thomas Hawley.
An even nambered section lying within the common granted limits of two railroad
grants remainH at double minimum though one of such grants may have been for-
feitedy and an a)iplication for repayment on the ground of double minimum
excess must be accordingly denied.
Secretary Francis to the Commissioner of the General Land Office^ Jan-
(I. H. L.) uary S, 1807. (E. M. R.)
This 18 au Application by Thomas Hawley for the repayment of the
doable minimum excess paid iu the Ashland, Wisconsin, land district,
CD cash entry No. 5037, for the S. ^ of the SW. J of Sec. 14, T. 49 N.,
B. 7 W., and is before the Department on ajipeal from your office
decision of October 31, 1895, denying suid application.
This land is Trithin the common ten mile limits of the Omaha railroad
and the Wisconsin Central railroad. The appeal is based upon the
authority of the case of James McVicar (21 L. D., 128).
On June 3, 185G (11 Stat., 20), Congress j>assed an act to aid in the
eonstmctiou of the Chicago, St. Paul, Minneapolis and Omaha raiho-.id.
On May 5, 1864 (13 Stat, 56), Congress passed an act by which the
grant to the said Omaha railroad comx)any was enlarged from six to ten
sections x>er mile. By the same act a grant was made to aid in the con-
struction of the railroad now known as the Wisconsin Central railroad.
The tract of land upon which re-payment is now asked, as has been
stated, is within the common ten mile limits of these two roads.
This Department has held that the grant made by the act of 1864
was of a moiety to each road of the lands so lying within the common
limits of both, but held that in view of the fact of the withdrawal for
indemnity puri^oses in behalf of the Omaha railroad iu 1856, the grant
to the Central company was defeated as to laud so situated. ( Wiscon
sin Central H. B. Co., 10 L. D., 63; and Chicago, St. Paul, Minneapolis
and Omaha B. B. Co., Id., 147.)
In the decision of the Department in the case of James McYicar
(supra) it was said —
In the adjustment of the Omaha grant said company was required to make selection
of lands -within the common hmit equal to its moiety, to which it was given full
title, the remaining lands being held to apply to the moiety for the Central com-
pany's grant, which being defeated by the reservation under the act of 1856, as
before stated, were opened to entry. The land in question is a portion of that
xestored, and in completing entry therefor, McVicar was required to pay at the rate
•f $2.50 per acre or the double minimum price.
Section 4 of the act of Congress of May 5, 1864 (13 Stat., 66-page
•7 thereof), provides:
And he it further enacted, That the sections and parts of sections of lands which
shaU remain to the United States within ten miles on each side of said roads shall
not be sold fi>r less than double the minimim price of the public lands when sold ;
10 DECISIONS RELATING TO THE PUBLIC LANDS.
nor shall any of the said reserved lands become sabject to private entry nntil the
same have been first offered at pnblio sale at the increased price.
lu the case of the Wisconsin Central 11. R. Co. v. Forsythe (109 U. S.,
46), it was held that the withdrawal made for indemnity purposes under
the act of 1856 did not serve to defeat the attachment of rights
under the grant made by the act of 1864, and consequently that the Wis-
consin Central railroad company was entitled to its proportionate share
of the land so lying within the ten mile limits of each road. This was
a reversal of the holdings of this Department, iuasuijuch as it was held
by the supreme court that the withdrawal did not operate to defeat
the grant to the Wisconsin Central railroad company.
Under the act of Congress of September 29, 1890 (26 Stat., 496),
being *^An act to forfeit certain lands heretofore granted for the pur-
pose of aiding in the construction of railroads and for other purposes,"
whieh forfeited unearned lands granted to railroads in various states
and provided for the restoration of such lands to the public domain, it
was provided that lands so forfeited and restored to the public domain
should be entered at the rate of $1.25 per acre.
It will be noticed that the land in controversy is a part of an even
numbered section, to-wit, section 14. By referrii g to the original
act making this grant in behalf of the Wisconsin Central Eailroad
Company, and in which at the same time is enlarged the grant in behalf
of the Omaha Company, it will be seen that the lauds increased in
price were those which were not granted to these railroad companies.
The lands granted to the railroad companies were the odd numbered
sections within said limits. They, therefore, were not increased in
price. And under the act of September 29, liS90, the lands granted to
the railroad were forfeited and were directed to be sold at $1J25 per
acre.
It thus follows that there is no statutory authority for ordering
re-payment in this case, and this land being within the ten mile limits
of the Omaha railroad, despite the fact that the grant to aid in the*
construction of the Wisconsin Central railroad has failed and deter-*
mined, the even sections within said ten mile limits of the Omaha rail-
road remain at double minimum prices.
While it is unfortunate that Congress should have directed the sale
of the odd numbered sectiops at siugle minimum rates in this particu-
lar instance, and left the even numbered sections at double mininmm
rates, still this is no hardship to the claimants under the public laud
laws on the even numbered sections, inasmuch as the reason of increased
valuation by proximity to a railroad existed here as in all other instances,
of increased prices. The law simply relieves claimants upon odd num-
bered sections similarly situated in reference to a railroad from paying
the double minimum price.
The decision of your office is affirmed and the application for re-i)ay-
ment is denied.
DECISIONS RELATING TO THE PUBLIC LANDS. It
COAli LAND ENTRY-PRICE OF LAND,
ALLEN L. BUEGESS.
The price of coal land is dependent upon its distance from a completed railroad at
the date of en try ^ and not at the date of the application.
Secretary Francis to the Commissioner of the General Land Office^ Jan-
(I. H. L.) uary 8y 1897. (S. V. P.)
Allen L. Burgess made coal land entry September 14, 1805, of tbe
SE. i of the SE. \ of Sec. 14, T. 55 K., R. 85 W.^ Buffalo land district,
Wyoming, and upon examination of tbe final proof your oflfice held it
unsatisfactory with respect to the proof furnished as to the distance of
the land from a completed railroad at tbe time said entiy was made,
and required further proof on that point, in order that the proper price
of the land might be determined. From this action Burgess has
appealed.
In tbe final affidavit made by Burgess, be states:
I made application to pnrcbmse said land on or about November 14, 1892, at which
time said land was not within fifteom miles from tho line of any completed railroad;
and that the delay in making payment for Raid land has beeii caased through a con-
test pending on said land between Hermann Tinun and myself, which contest has
been recently decided.
The price of coal land is fixed by section 2347 of tbe Bevteed Statutes,
which provides that:
Erery person above the age of twenty-one years .... shall, upon application to
the register'of the proper land office, have the right to enter by legal subdivisions,
any quantity of vacant coal lands of the United States not otherwise appropriated
or reserved by competent authority, not exceeding one hundred and sixty acres to
anch individual person .... upon payment to the receiver of not. less than len
dollars per acre for such lands, where the same shall be situated more than fifteen
miles from any completed railroad, and not less than twenty dollars per a<Te for such
lands as shall be within fifteen miles of such road.
Under tbe construction of tbis statute, adopted and followed by the
Department, it is tbe distance of tbe land from a completed railroa<l at
the d«ite of entry that determines its price. See paragraph 13, Regu-
lations of July 31 , 1882 (1 L. D., 689).
In tbe case of Edward B. Largent et al. (13 L. D., 397), a protest
against tbe allowance of tbe application to enter was filed, as in tbe
ease at bar, and tbe Department in disposing of tbe question said :
The filing of the protest against the entry of Strong was a risk that must be
as8Rme<l by all who apply to enter the public land. The fact that in this particular
case it had the effect to postpone the entry until after a railroad was completed within
fifteen miles of the tract, which under the law doubled the price of the land, is only
incidental, and the government can not be properly beld chargeable for the delay,
occasioned by Mr. BagnelPs protest. - *
and it was therefore held that tbe ])rice of tbe land was dependent
upon its distance from a completed railroad at date of entry, and not
at tbe date of the application.
The decision of your office is affirmed.
12 DECISIONS RELATING TO THE PUBLIC LANDS.
SCSOOL LAN1>S-8ETTLEMENT BKFORE SURVEY.
State of Washington r. Kuhn.
The act of February 28, 1891, amending sections 2375 and 2276, R. 8., protectn settle-
ment on school land prior to survey, and said ntatiite in that respect supersedes
the provisions of sections 10, and 11, of the act of February 22, 1889.
Secretary Francis to the Commissioner of the General Land Office^ Jan-
(I. H. L.) uary S, 1S97. (C. J. G.)
This case is in relation to the E. J of the NW. ^ and the ^N". J of tlie
NE. J, Sec. 36, T. "21 N., R. 8 E., Seattle land district, Washington.
On April 18, 1893, Edward A. Kulin made liomestead entry for this
tract, alleging settlement thereon September 29, 1890.
On Angnst 13, 1895, the State of Washington, by its Commissioner
of Public Lands, entered protest against the allowance of said entry,
and requested that a hearing be ordered to determine the rights of the
respective parties.
The grounds urged in said protest were, that title to this land, being
located in section thirty- six, had passed and become vested iu the State
of Washington by virtue of sections ten and eleven of the act of Feb-
ruary 22, 1889 (25 Stat., C7C), admitting the said State into the Union;
that the title of the State of Washington in and to said land is not
affected or invalidated by reason of the provision of the act of Febru-
ary 28, 1891 (26 Stat., 79C), amending sections 2275 and 2276 of the
Revised Statutes of tlie United States.
The State of Washington was admitted into the ITuion on Novem-
ber 11, 1889.
On October 7, 1895, Ku^m submitted his final proof; and on October
10, 1895, the local office dismissed the protest filed by the State of
Washington, holding that the elaim of said State was iu contravention
of the act of February 28, 1891 (supra). Knhn's final proof being
satisfactory fijial.certificate was duly issued thereon.
The State of Washington filed an appeal from the above decision,
and under date of November 29, 1895, your office affirmed the action
of the local office. A further append on behalf of the State brings the
case before this Department, the errors assigned being iu line with
the specifications contained iu the protest against Kuhn's entry.
That portion of sections 2275 and 2276, incorporating the act of Feb-
ruary 26, 1859 (11 Stat., 385), which has reference to the point under
consideration, is as follows:
V^There settlements, with a view to pre-emption, have heen made before survey of
the lands in the field, which are found to have heen made on sections sixteen or
thirty-six, those sections shall be subject to the pre-emption claim of such settler;
and if they, or either of them, have been or shall be reserved or pledged for the use
of schools or colleges in the State or Territory in whicli the lands lie, other lands of
like quantity are appropriated in lieu of such as may be patented by iire-emptors, etc
DECISIONS KELATING TO THE PUBLIC LANDS. 13
The act of February 22, 1889 {8upra)j has a proviRion in section 11
thereof as follows:
All lands herein granted for educational purposes .... Khali not be Hubject to
pre-emption, homesteatl entry, or any other entry under the land laws of the United
(states, whether surveyed or unHurveyed, but shall be reserved (or school purjioses
only.
The act of February 28, 1801 (8upra)j amended sections 2275 and
227(> of the Kevised Statutes to read ns follows:
Where settlements with a view to pre-emption or homestead have been, or shall
hereafter be made, before the survey of lands in the field, which nre found to have
been made ou sections sixteen or thirty-sis, those sections Hhall be subject to the
claims of such settlers; and if such sections, or either of them, have been or shall bo
granted, reserved or pledged for the use of schools or colleges in the State or Terri- '
tory in which they lie, other lands of equal acreage are hereby appropriated and
granted, and may be selected by said State or Territory, in lion of such as may be
thns taken by pre-emption or homestead settlers ....
That the lands appropriated by the preceding section shall be selected from any
unappropriated^, surveyed public lands .... within the State or Territory where
such losses or deficiencies of school sections occur, etc.
It has been decided by the Department that the provisions of sections
10 and 11 of the act of February 22, 1889, and those of sections 2275
and 2276 of the Kevised Statutes, being in apparent conflict, the same
are superseded by the act of February 28, 1891, and that the grants to
these States are to be found in and governed by this later act. The
Department, in the instructions to your office dated April 22, 1891 (12
L. D., 400), held,
that the provisious of the prior act of February 22, 1889, in so far as they are in
conflict with those of said sections 2275 and 2276 of the Revised Statutes ns amended
by the later act of February 28, 1891, are superseded by the provisions of said sec-
tions as amended, and that the grants of school lands to those States mentioned in
•aid act of February 22, 1889, are to be administered and adjusted under the pro-
▼iaions of this later general law.
It is thus apparent from the foregoing that until survey no rights of
the State can attach to sections 16 and 36 under the grant; and that
settlements made on said sections before survey shall be subject to the
claims of such settlers.
The records of your office show that the plat of survey for the laud
in question was flled in the Seattle land office, and the said land opened
to entry, on February 7, 1893.
As previously set out herein Kuhn alleges settlement on September
29, 1890.
Your office decision is hereby affirmed.
X4 . DECISIONS RELATING TO THE PUBLIC LANDS.
PRACTICE-NOTICE— SCHOOL L ANT>9~SELECT:I0N .
Rice r. State of California.
Service of notice of contest by registered letter is not personal service within the
meaning of Rule 9 of Practice.
The title of the State to school lands vests at the date of the completion of the sur-
vey, and if the land is not then known to be mineral in character, the subsequent
discovery of mineral thereon will not divest the title that has already passed.
The State by a school indemnity selection in lieu of land alleged to be mineral in
character waives its clilim to the basis, which may be thereupon disposed of ns
part of the public domain.
Secretary Francis to the CommiHsioner of the General Land Office^ Jan-
(I. H, L.) uary 8, 1897. (P. J. C.)
The land involved in this appexil is the S. J of the XW. \ of Sec. 36,
T. 11 N., E. 8 W., M. D. M., San Francisco, California, land district, tbe
plat of which was approved and tiled in the local office August 9, 1875.
On March 20, 1895, John C. Rice filed an affidavit of contest, alleging
that he has known the land since 1890, that it is mineral in chai*acter,
and ever since deponent first knew the land it has been known to be mineral, bein^
more valuable for mineral than for agricultural purposes.
A hearing was ordere<l and a copy of the notice sent by registered
mail to the surveyor general of California. There was no appearance
for the State at the hearing, or subsequently. The contestant sub-
mitted his testimony, and the local officers held the land to be mineral
in character, known to be such at the date of the survey. No appeal
was taken. Your office, by letter of November 5, 1895, reversed the
action of the register and receiver on two grounds; first: that service
of notice of a hearing by mail was without "authoritj^ of law or warrant
in the rules of practice;^ and second: that the land being in section 36
was granted to the State as school land, ^Mmless said land was known
to be mineral in character at the date when said land was surveyed.'^
The appeal of Kice brings the case before the Department, and the
rulings stated above are alleged to be error.
It is stated by counsel in his brief that your office decision is erro-
neous on the first proposition because
the record contains the surveyor general's written acknowledgment of the receipt
of notice, which is Hufficieut to perfect service under the doctrine of Crowston r.
Seal, 5 L. D., 213; Canal Co. r. Louisiana, 5 L. D., 479.
The only "written acknowledgment of the receipt of notice" to be
found in the record is the return receipt for a regist^ered letter.
The case of Crowston v. Seal is overruled in Kiting r. Terhune (18
L. D., oSG>)^ where it is distinctly held that service of notice of contest
by registered letter is not personal service within the meaning of Rule
9 of Practice. The other case cited by counsel does not treat of service
of notice of contest, but of service of notice of a^ decision of your office
upon one of the parties to a contest, and is therefore not an author-
ity upon the proposition stated by counsel.
DECISIONS RELATING TO THE PUBLIC LANDS. 15
On the second proposition it has been repeatedly held that the State's
title to school lands nnder the act of March 3, 1853 (10 Stat., 244), vests
at the date of the completion of the survey,
and if the land, although in reality mineral, was not then knowtt to be mineral, the
subsequent discovery of its mineral character vrould not divest the title which had
already passed. (Abraham L. Miner, 9 L. D., 408; Pereira r. Jacks, 15 L. D., 273.)
There is nothing in the affidavit of contest or the evidence submitted
to show anything to defeat the oi>eration of the grant. All that is
claimed is that cinnabar exists on the saiface of tbe ground and its
presence was sufficient to characterize the land as mineral.
While there was no error in your office judgment as the case was
then presented, yet there have been some subsequent developments that
render it necessary to fuither consider the matter.
My attention is called to the fact that tbe State has, subsequent to
the initiation of this proceeding by Rice, made indemnity selections in
lieu of the land in controversy, two of which — Stockton lists Xos. 220
and 221 — have been approved by your office to the extent of sixty acres,
and two others — Stockton list No. 222, and San Francisco list No. 5273,
10 acres each — are now pending. It is stated by counsel that all these
selections have been approved, but informal inquiry in your office shows
the fact to be as above stated. The reason assigned by the State for
making these indemnity selections is that the land in controversy is
mineral in character.
By act of Congress of February 28, 1891 (26 Stat., 796), Sec. 2275
B. S., was amended, and among other provisions therein is found this —
And other lands of equal acreage are also hereby, appropriated and granted, and
may be selected by said State or Territory where sections sixteen and thirty-six are
mineral land, or are included within any Indian, military, or other reservation, or
are otherwise disposed of by the United States: Provided ^ Where any State is enti-
tled to said sections sixteen and thirty-six, or where said sections are reserved to
any Territory, notwithstanding the same may be mineral land or embraced within
a military, Indian, or other reservation, the selection of such lands in lieu thereof
by said State or Territory shall be a waiver of its right to said sections.
Under the terms of this statute it is clear that the State may make
indemnity selections whenever any. of its granted, school lands are
found to be mineral in character. In reference' to the land in contro-
Tersy the State has, presumably, satisfied itself that it does not fall
within the terms of its grant and has selected other lands in lieu thereof.
The Department, in commenting on the proviso above quoted, has said :
Conceding that the school grant attached to the specific sections after they were
designated by the survey, the State having selected equivalent land in lien thereof,
the government may hold the State to its waiver of the school sections and dispose
of it as part of the public domain. (Gregg et at, v. Colorado, 15 L. D., 151.)
It seems to me that this rule may be applied in the case at bar, and
that the State by reason of its selection is estopped from making any
farther claim to the land in controversy.
Notwithstanding the decision of your office was correct on the record
16 DECISIONS RELATING TO THE PUBLIC LANDS.
as it then stood, yet by reason of the action of the State since the ren-
dition of yonr office judgment, it is clear that the land in controversy is
now a part of the public domain and may be disposed of as sach, and
that part of your office judgment that held that the land inured to the
State under its grant must be vacated.
It is so ordered.
8ECOXD HOMJSST£AI> ENTRY— CORROBORATORY AFFIDAVIT.
BOHUN V. BBEtiX.
The right to make a second homestead entry may be recognized where the first
throagli mistake was not made for the land intended, and was accordingly
relinquished.
An official certificate of the register as to the trnthfnlness of the applicant may be
accepted iu lieil of the corroboratory affidavit required in the case of an appli*
cation to make second homestead entry, where the failure to fnrnish sach affi-
davit is satisfactorily explained.
Secretary Francis to the Commissioner of the General Land Office^ Jan-
(I. H. L.) uary 8, 1897. (C. J. W.)
On May 25, 1891, Nicholas Brest made homestead entry No. 255 for
the E. i SE. J Sec. 24, T. 24 N., E. 21 E., and NW. J SW. J and SW. J
N W. 4 Sec. 22, T. 24 N., R. 22 E., Waterville land district, Washingrton.
S. L. Bohnn contested the entry, after due notice served by publica-
tion, December 8, 1894. On January 15, 1895, the case came on ibr
hearing, and Brest made default. The evidence disclosed the fact that
Brest had never lived on or improved the land. The local officers
recommended the cancellation of the entry, and there being no appeal,
on April 26, 1895, your office canceled said entry.
On filing his contest Bohun made application to enter the land
embraced in Brest's entry, and which he alleged Brest had abandonei],
and he also filed an application for the restoration of his homestead
rights. It appears from the record that on April 26, 1889, Bohnn made
homestead entry No. 219 for the NW. J, Sec. 26, T. 15 N., R. 3 W.^
Guthrie land district, Oklahoma. The same was canceled by relin-
quishment on November 21, 1889, when Peter Anderson entered the
said tract. On January 14, 1895, the local officers forwarded to yoor
office the application of Bohun to make entry of the land covered by
his contest and application for restoration of his homestead rights,
with the recommendation that the same be granted. On April 26, 1895,
your office rejected said application for the reason, and upon the
ground, that Bohun's affidavit, in which he set forth the i'acts upon
which he based his right to second entry, was uncorroborated. From
this decision Bohun appealed. The principal ground of his appeal is
that he is a qualified homesteader, and under the law is entitled to a
homestead of one hundred and sixty acres, and that he has never per-
fected an entry or exhausted his rights. Bohun, in his affidavit, states
DECISIONS BELATING TO THE PUBLIC LANDS. II
that after making homestead entry No. 219 (at Guthrie) he returned ta
his home in Nebraska, with the intention of going upon the land
entered within six months, but was informed by parties at Guthrie
that the surveyor, who was employed to run out the lines, had made a
mistake, and that the entry had been made on the wrong tract of land
in another township, and that before he could return, other parties had
filed and made improvements on the land that he intended to file on^
and that at the time he was unable to stand the cost of a contest, and
that the land embraced in the entry was not desirable and not fit for
farming. That he does not remember the names of the parties who
would corroborate this affidavit, and could not get their affidavits
without going to Guthrie for that purpose. He further states that
after finding the error tht^t had been committed, he relinquished the
land back to the government on the 21st day of November, 1889, and
that he has never had the benefit of the homestead laws, and that he
did not sell his right to the land and did not receive the amount of his
filing fees.
It is evident that it is the purpose of the law that every citizen pos-
sessing the requisite qualifications should be entitled to a homestead
of one hundred and sixty acres of v^ublic land subject to entry, and that
a second entry may be made in instances where, for some cause unfore-
seen, the first entry has failed without fault or fraud upon the part of
the entryman. If the facts set out in the affidavit of Bohun are true,
he has not exhausted his homestead rights, and should bo permitted to
make a second entry. It was evidently not because of the insufficiency
of the facts, that your office rejected his application, but because it was
held that they were not sufficiently proven — the objection being that
the usual corroborating affidavit was wanting. The party is competent
to testify in his own behalf, but lest a door for fraud should be opened
by depending entirely upon the testimony of the applicant in this class
of cases, it has been the rule of the Department to require some sort of
corroboration of the truth of the applicant's statements. Your office
doubtless sought to follow this rule in rendering the decision complained
of. It is not believed that under the peculiar facts of this case, the
rule as properly construed would be violated by granting the applicant's
petition. The chief office of corroborative evidence of whatever nature
it may be is to give assurance of the good faith and truthfulness of the
affiant to be corroborated. The reason for the failure in this case to
furnish additional affidavits setting up the same facts stated in the
applicant's affidavit is given, and that reason is at least forcible. It is
followed by evidence of the general truthfulness of the affiant. The
register of the land office at Waterville, in forwarding the application
of Bohun for restoration of his homestead right, mentions the fact that
his showing is not corroborated, and then adds the following —
The tract of land that he makes application for is now held by Nicholas Brest
homestead entry No. 255, and Bohnn has filed a contest against said tract which I
10671— VOL 24 2
18 DECISIONS RELATING TO THE PUBLIC LANDS.
presume from wBat I can learn from other parties will be an ex parte contest. The
.register has known Mr. Bohun for sometime, and believes him to be a truthful man,
•and we would recommend that his right be restored and that he be allowed to make
^his entry.
The facts stated in Bohun's affidavit are presumptively true, aud this
presumption is strengthened by the official report of the register to
the ettect that he knows and believes him to be a truthful man. This
report made by an officer of the government, acting under oath, is
equivalent to an affidavit, and may be regarded as a substantial com-
pliance with the rule requiring initiatory affidavits to be corroborated.
The land he seeks to enter was restored to the public domain through
the instrumentality of a contest initiated by him and proof produced by
him. It is believ^ that the showing made is sufficient under the cir-
cumstances to authorize the restoration of his homestead right.
Your office decision is accordingly reversed, and Bohun will be
allowed to make second entry for the land applied for.
MTNTNG CLAIM-JIJI>1CIAL PROCEEDINGS-SECTION «38«, R. S.
Cain et al, v. Addenda Mining Co.
Judicial proceedings are not effective as against an application for mineral patent if
not baaed upon an adverse claim as provided by statute.
-Continuous possession of a mining claim, with due compliance of law, for a period
equal to the time prescribed by the statute of limitations for mining claims, in
the State wherein such claim is situated, entitles the claimant under the provi-
sions of section 2332, R. S., to a patent, in the absence of any adverse claim.
Secretary Frafieis to the Commissioner of the General Land Office^ Jan-
(I. H. L.) uary 8, 1897. (E. B., Jr.)
The record in this case shows that The Addenda Gold and Silver
Mining Company, a corporation organized nnder the laws of California,
made application November 11, 1879, for patent to the Addenda lode
claim, situated in Bodie, California, land district; that the claim was
located May 19, 1877; that the period of publication ended January
17, 1880; that during the period of publication the said application
was adversed by the owner of the Concordia lode claim, suit duly com-
menced thereon, and judgment given April 13, 1882, awarding the
ground in conflict to the adverse claimant; that on December 10, 1894,
the said company made mineral entry Ko. 240 for what remained after
excluding the conflict with the Concordia lode and the Insurance lode;
4)hat on April 27, 1895, James S. Cain, Alexander J. McCone, and John
W. Kelly filed a protest against said entry, alleging, in effect, —
1. That the Addenda claim had been abandoned by said company Bubseqnent to
■ application for patent and before entry ;
2. That in 1894, and subsequent to the alleged abandonment, the Addenda claim
had been re-located, and that pro tea tan ts were owners of the ground under the
ire-location; and
DECISIONS RELATING TO THE PUBLIC LANDS. X9
3. That in November, 18d4, they commenced suit against said company to qoiet
title, which suit was then pending.
In the course of proceedings fully set out in your office decisions of
September 3, 1895, and (on review) January 0, 189G, and not necessary
to be recited here in detail, your office by its former decision lield that
protestants' said suit, not having been instituted under any provision
of the mining laws, did not authorize any stay of proceedings under the
company's application for patent; that it was shown that the company
had in good faith endeavored to comply with the mining laws; that tbe
alleged re-location by one P. Curtis, under which protestants claimed,
having been made by him wbile agent of said company, was in fraud of
the company's rights, gave protestant no right against the company,
was insufficient to defeat its entry; and therefore dismissed the protest.
Upon motion for review by protestants, your office, in its latter decision,
basing its action largely upon a judgment in favor of protestants in
their said suit, made and entered in the superior court of Mono county,
California, August 30, 1895, overruled its former decision and held the
company's entry for cancellation. The company thereupon appealed,
assigning error as follows :
The Commissioner erred in holding that the said Addenda Gold and Silver Mining
Company had not complied in good faith with the laws governing and holding min-
ing claims.
The Commissioner erred in holding that the only remedy in the above entitled mat-
ter was by an action in equity to hold the re-locators and their grantees trustees for
the Addenda Gold and Silver Mining Company.
The Commissioner erred in holding that the Addenda Gold and Silver Mining Com-
pany abandoned its claim by failing to file a notice of its intention to hold the said
location in good faith under the act of November 3rd^ 1893.
The Commissioner erred in holding that there is a final decree in favor of the
plaintiffs in tbe case of Cain et a/, v. Addenda Gold and Silver Mining Company.
The Commissioner erred in holding that the application for a patent should be
canceled instead of suspended during the pendency of the action of Cain et al, v.
Addenda Grold and Silver Mining Company.
The Commissioner erred in holding that the patent should be held for cancellation
on the ground that the Department of the Interior did not have sufficient equity
powers to waive a technical violation of the law, where the applicant was not to
blame for such violation.
The Commissioner erred in holding the application for a patent for cancellation
under the facts recited in his decision of January Gth, 1896.
It is in evidence and not denied that prior to 1886 said company had
expended $100,000 on said claim; that said Curtis was the superintend-
ent of the company during 1885, in their mining operations thereon ;
that from 1886 to 1892, inclusive, he was the company's agent to see
that the annual assessment work was done thereon, the company hav-
ing no other agent in the neighborhood; that the company sent him
$100 each year during that period to pay for such work, and that he
regularly filed each year during that period his affidavit with the dis-
trict mining recorder, that he had expended that amount in assessment
work upon the claim in behalf of said company.
20 DECISIONS RELATING TO THE PUBLIC LANDS.
On November 23, 1893, Congress passed an act (28 Stat., 6), excusiug
assessment work on a mining claim for that year upon the filing for
record in the office where the location certificate was on file a notice
that the claimant in good faith intended to hold and work the claim.
Snch notice was sent by the company to Cnrtis in November, 1893, to
be duly filed. He admits the receipt of this notice, but not that he
agreed to file it. John Dixon, a director and former president of the
company, swears positively that Ourtis did agree to file the notic^e in
a letter to him dated December 5, 1893. He did not file it, bat on
January 1, 1894, re-located the claim, under the name of the Black
Bock Consolidated lode claim, and on May 2, 1894, made a conveyance
of the same to said Kelly. Kelly made a location covering the Addenda
ground and some additional ground, on June 18th following, which he
called the Contention Mine, and subsequently made conveyances of
one third interests, each, thereunder, to Cain and McCone.
I am convinced from the evidence that Kelly knew of the relations
between Curtis and the Addenda Company, and that Curtis had taken
advantage of these in an attempt to surreptitiously gain possession of
the company's claim ; and am also convinced that the company attempted
in good faith to comply with the act last above mentioned, and supposed,
until long afterward, that it had duly complied. There was no inten-
tion on the part of the company to abandon the claim. It must be con*
ceded, however, that the company did not in fact comply with the said
act. But the law, generally speaking, does not look with favor upon
a forfeiture of property, and the Department is not, therefore, disposed
to extend any aid toward these protestants in their insistence upon a
forfeiture, under all the circumstances, but, on the contrary, to construe
the law in the case strictly against them.
They are not here as adverse claimants in any sense under the min-
ing laws, but merely as amici cttncp— friends of the court. They have
a right to protest under section 2325 of the mining laws (Revised
Statutes), but no right to contest. They may not assert any claim as
against the applicant for patent, but only challenge the applicant's
claims under the law (Wight t?. Dubois et al, 21 Fed. Rep., 693). The
judgment on the suit to quiet title which protestants set up and which
appears to have become final on failure of the company to appeal there-
from within a year from the entry thereof (Sec. 939 Cala. Code of Civil
Procedure — Deering), is not a judgment on an adverse claim, and not,
therefore, effective against the company in their proceedings for patent.
Although Curtis testifies that the assessment work done on the
Addenda under his supervision from 1886 to 1892, inclusive, was done
perfunctorily, contributed little if at all to the development of the
claim, and that only $95 of the $100 sent him was applied toward
actual labor thereon, the other five dollars going to pay for recording
the affidavit of labor, the company is shown to have been in unques-
tioned possession during all that time, and I think it may be safely
held that the work was a sufficient compliance with the mining laws
DECISIONS RELATING TO THE PUBLIC LANDS. 21
in the absence of any attempted re-location during that time, or any
adverse claim. Under a state of facts analogous to the present case
the Department held, in Stewart et al. v, Hees et ah (21 L. D., 446),
under authority of section 2332 of the Bevised Statutes, and the cases
cited, that —
If the claimaot has been in possession and worked the Jaw Bone [mining claim]
for the period prescribed by the statateof limitations for miniqg claims in Montana,
prior to the re-loc»tion by the protestants, he is entitled to have the same passed to
patent, at least aa against these protestants (Glacier r. Willis, 127 U.S., 471; 420
Mining Co. v. Bullion Co., 1 Mont. M. R., 114).
The Jaw Bone mining claim was located in Montana, but section
2332 of the lievised Statutes is applicable to mining claims in any
** State or Territory." It reads —
Where snch person or association, they and their grantors, have held and worked
their claims for a period equal to the time prescribed by the statute of limitations
for mining claims of the State or Territory where the same may be situated, evidence
of such possession and working of the claims for snch period shall be sufficient to
establish a right to a patent thereto under this chapter, in the absence of auy adverse
claim ; but nothing in this chapter shall be deemed to impair any lien which may
have attached in any way whatever to any mining claim or property thereto ajttached
prior to the issuance of a patent.
• The 'Hime prescribed by the statute of limitations for miping claims"
in California is five years. A mining claim in California is real estate
(John Melton ei ah v. Orville D. Lambard, 51 Cal., 258), and the x>driod
of limitation as to actions for the recovery of real estate is five years
from seizin or i)ossession of '* the plaintifif, his ancestor, predecessor
or grantor." (Sec. 318 Oal. Code of Civil Procedure — Deering; and
Morris r. De Cells, 51 Cal., 55.) The Addenda company having held
and worked its claim continuously for more than five years immediately
prior to the alleged re-location, it is, under section 2332 of the Revised
Statutes, and Stewart et aL r. Bees et al, {supra), entitled to have the
same passed to patent, as against these protestants.
Your offic^decision of January 9, 1896, herein, is accordingly reversed,
and said protest dismissed, and you will pass the Addenda claim to
patent, subject, however, to any objections appearing in the record and
not herein considered.
RATLROAD GRANT-LANDS EXCEPTEI>-PREE>rPTION FILING.
Northern Pacific B. E. Co. v. Booers.
Land embraced wUhin a pre-emption filing of record at the time when a railroad
grant becomes effective is ex(*epted from the operation of the grant, and the
company in snch case is not entitled to question the legality of the filhig or the
qualifications of the pre-emptor.
Secretary Francis to the Commissioner of the General Land Office, Jan-
(I. H. L.) uary 8, 1897. (P. J. C.)
The land involved in this appeal is the SE. \ of the NE. \ and lots
1 and 2, Sec. 5, Tp. 1 N., B. 4 W., Helena, Montana, land district, and
22 DECISIONS RELATING TO THE PUBLIC LANDS.
is within the primary limits of the grant to the Northern Pacific Eail-
road Company, as shown by its map of definite location filed July 67
1882. It is also within the limits of the withdrawal on general roate,
which became effective February 21, 1872, and was listed by the com-
pany (list No. 12), July 28, 1886.
It appears that one John Paul filed pre-emption declaratory state-
ment for the tracts, April 24, 1871, alleging settlement March 1, previ-
ous. He subsequently offered final proof, which was rejected by the
local officers, because he was not qualified to file for or enter the land»
for the reason that he had prior thereto completed a pre-emption for
land in Colorado, upon which patent had issued. After the rejectioa
of his final proof he entered into a contract to purchase the land of the
railroad company. It also appears that one Bennett Degenhart, on
December 27, 1883, presented his application to make homestead entry
of said tract, alleging settlement in July, 1882, and on the protest of
the railroad comxmny against the acceptance of the same a hearing wa»
had, and on final appeal to the Department Degenhart's application
was rejected. (Degenhart v. ^Northern Pacific, 15 L. D., 159.) A
motion for review of this decision was denied, December 21, 1892, and
the case against Degenhart was formally closed on the records of your
office.
The present controversy arises on the application of Thomas B.
Bogers, filed in the local office August 21, 1895, to make homestead
entry of the tract, on the ground that under the decision of Supreme
Court in Whitney v, Taylor (158 U. S., 85,) the preemption filing of
John Paul, existing of record on February 21, 1872, the date of the
withdrawal of lands within the Unfits of the grant, excepted the land
fi*om the operation thereof.
On consideration of this application your office, by letter of Septem-
ber 23, 1895, decided that, under the doctrine of the Whitney -Taylor
case, the land was excepted from the grant. The connection of the
other parties with the case was stated, substantially, as above, thea
the following order was made :
Should this decision holding the company's list for cancellation as to the land
involved become final, and should it appear upon an investigation that Paul and
Degenhart have abandoned their respective interests in said land, Mr. Rogers will
be permitted to make homestead entry therefor, in accordance with his original
application, but not otherwise. If Mr.^ Paul is, as he claims, a bona fide purchaser
of the land f^om the railroad company, it would appear that he is entitled to relief
under act of March 3, 1887, and in any case should the railroad claim be eliminatec^
and other parties set up a claim to the land, a hearing will be necessary in order to
determine the respective rights of all adverse claimants.
From this judgment the railroad company has appealed, assigning
as error, (1) in holding the expired pre-emption filing of John Paul was
sufficient to except this land from the operation of the grant, and (2)
for any reason to have rejected the claim of the company.
It is contended by counsel that, inasmuch as the question as to the
DECISIONS RELATING TO THE PUBLIC LANDS. 2$
right of the company to select this land was decided in its favor in the
case of Degenhart 17. Korthern Pacific that this case is stare decisis;
that the decision in that case
should be conclusive, aud inasmuch as it was then affirmatively found that Paul was
not a qualified pre-emptor, it necessarily follows that his filing was au absolute
nullity, and could have no possible effect upon the operation of the railroad grant*
I do not conceive this position of counsel to be sound. It is shown
that Paul's filing was of record and uncanceled at the date of with-
drawal on general route, and also of definite location. Under the
doctrine of the Whitney-Taylor case, as construed by the Department
in Fish v. Northern Pacific (23 L. D., 15), this filing excepted the land
from the grant, and the company can not be heard to question the
legality of the filing or the qualifications of the pre-emptor. The4»st
should be : was there a filing on record at the time. If there was, it
was then simply a question between the government and entryman, in
which the railroad company would not be permitted to be heard.
Tour office judgment is therefore affirmed.
ADDITION AJL HOMESTEAD ENTRT— SECTION 6, ACT OF MARCH «, 1889.-
Wallace H. Hebbick.
The right to make additional homestead entry under section 6, act of March 2, 1889,
is limited to cases where the original entry was made prior to the passage of
said act.
Secretary Francis to the Commissioiier of the General Land Office^ Jan-
(I. H. L.) nary 5, 1897. (S. V. P.y
I have examined the record brought up by the appeal of Wallace H»
Herrick from the decision of your office rendered October 10, 1895,
rejecting his application to make homestead entry of lot 3, NW. J of
the :»W. J Sec. 26, T. 27 N., R. 21 W., Missoula land district, Montana.'
It appears that Herrick made said application August 7, 1895, stating
in his preliminary affidavit
I have heretofore made homestead entry of the SE. ^ of NW. ^ Sec. 26, T. 30 N.,.
R. 21, for which I hold receiver's duplicate receipt No. 745^ issued May 2d^ 1895, at-
U. S. local land office, Missoula, Montana.
The local office rejected said application for the reason that " Wal-
lace H. Herrick has exhausted his homestead right as shown by affi-
davit accompanying the application, and by records of this office. See
15 L. D., 285.^^ This action you affirmed on appeal. The record of the
entry referred to in Herrick's preliminary affidavit accompanies the
pai)ers sent up with his appeal, and it appears therefrom that said
entry was made January 19, 1893, and commuted May 2, 1895.
It 18 urged on behalf of appellant that he is entitled to make the entry
in question under section six, act of March 2, 1889 (25 Stat., 854), which
provides —
That every person entitled under the provisions of the homestead laws to euter a>
24 DECISIONS RELATING TO THE PUBLIC LANDS.
bomestead, who han heretofore complied with or who shall hereafter comply with
the conditioDS of said laws, and who shaU have made his final proof thereander for a
quantity of land less than one hundred and sixty acres and received the receiver's
final receipt therefor, shall be entitled under said laws to enter as a personal right,
and not assignable, by legal subdivisions of the public lands of the United States
subject to homestead entry, so much additional land, ns added to the quantity pre-
viously so entered by him shall not exceed one hundred and sixty acres.
In the departmental circular issued March 8, 1889 (8 L. D., 314), this
provision was held applicable only in cases where the original entry was
made prior to the passage of said act, and this construction has since
been followed; John W. Cooper et al. (15 L. D., 285).
The decision of your office is therefore affirmed.
HOMESTEAD-SETTI^EMENT— TRADE AND BUSINESS.
KoBTHERN Pacific R. E. Co. et al. v. Waldon.
The homestead law does not contemplate that the right of entry shall be exercised
T)y one who makes settlement primarily and chiefly for trade and business, and
not for agricultural purposes.
Secretary Francis to the CommiMtoner of the General Land Office^ Jan-
(I. H. L.) Mary 18, 1897. (0. J. W.)
On April 6, 1886, John S. Waldon made application to make home-
stead entry for W. i SW. J, Sec. 5, T. 130 N., R. 79 W., Bismarck,
North Dakota, land district. The local officers rejected his application,
and on appeal by him to your office, their decision was reversed, and
on June 30, 1886, Waldon made homestead entry, No. 4317, for S. i
SW. J, Sec. 5, T. 130 K, R. 79 W. Waldon gave notice of his intention
to make final proof August 19, 1889. The taking of such proof was
adjourned to August 26, 1889, at which time John A. Rea^ as attorney
for James G. Pitts and James McLaughlin, and F. M. Dudley and
William H. Francis, attorneys for the Northern Pacific Railroad Com-
pany filed protests against the allowance of Waldon's proof. The land
js within the indemnity limits of said railroad company, and was
embraced in list 26 of its selection, filed January 8, 1885.
By letter " F" of March 20, 1895, the case was closed adversely to
the right of the company to the land. The protestants do not under-
take to set up any prior right in themselves but allege that Waldon
never settled upon the land in good faith, intending to claim the same
under the settlement laws; that at the date of the alleged settlement
the land was not legally subject to either homestead or pre-emption
settlement; that the entry and alleged settlement were illegal, made in
fraud and bad faith and for the purpose of speculation and trade, and
that Waldon has failed to meet the requirements of the homestead laW|
as to residence upon and cultivation of the laud claimed by him. A
hearing was ha<l August 27, 1889, with all parties present.
DECISIONS RELATING TO THE PUBLIC LANDS. ?5.
December 21, 1889, the local officers rejected WaldoD's final proof.
Waldon appealed to your office, and on May IS, 189u, your office
affirmed the decision of the local officers and held his entry for cancel-
lation. From this decision Waldon appeals, alleging the following
errors:
1st. In finding that Waldon went on the land in question fur the purpose of en;;ag-
iDg in the hotel bafliness.
2d. In finding that at the time he made settlement on the land in coutroveray the
same was used for the purpose of trade and businesd in the meaning of Sec. 2258 K. S.
3d. In holding that said land was not subject to entry because used for trade and
business.
The protestants having alleged no right in themselves to the land in
question, the case will be considered only as between the government
and Waldon. If it be true that his settlement was made for speculative
purposes, and that he went upon the land for the i^urpose of engaging
in the hotel business, his entry nominally for homestead purposes was
a fraud and unauthorized. The evidence of other witnesses, together
with Waldon's admissions, leave no room for doubt as to the purpose
of his settlement made in July, 1884, on a surveyed town lot, the bound-
aries of which were recognized and conformed to, in the erection of his
building, a plat of the town having been filed with the register of deeds
for Emmons county on June 3, 1884. In ^November, 1884, three months
after the commencement of his settlement, he had published in the
newspaper the following advertisement:
•
Merchants Hotel, Winona, D. T.
John Waldon, Proprietor.
This house is condncted in a first class manner, and every attention is paid to the
comfort and convenience of travelers, the building is twenty-four by tifty, two
stories high. The hotel is well furnished and the culinary department is well sup-
plied with everything the market affords. If you have occasion to visit the beauti-
ful and growing city of Winona do not forget to visit the Merchants.
The short interval between Waldon's settlement and the appearance
of the advertisement quoted, had been presumably occupied in the
building of the twenty-five hundred dollar house described. Any effort
to find evidence of a settlement for agricultural and homestead pur-
poses, in the acts performed by Waldon, or the language used by him
in proclaiming his business and location, would prove useless. Waldon
evidently appears to much better advantage as a stirring enterprising
man of business with speculative projects in mind, than as a pioneer
agricultural homeseeker, under the homestead laws. This is not said
to his discredit, since it is not the policy of the law to discourage enter-
prise and industry, in any legitimate pursuit. The law, however, does
not permit benefits which it confers upon homesteaders, to be appropri-
ated by those who do not contemplate the use of the land for agricul-
tural purposes, but for business and speculative purposes. It is not
unlawful to make settlements for business purposes, but where such
settlements are made, the rights thereby initiated must be perfected
26 DECISIONS RELATING TO THE PUBLIC LANDS.
under the townsite and not under the homestead laws. So far as t^e
record indicates its status, the town of Winona is unincorporated, and
no entry of lands has been made for the benefit of its inhabitants.
Affidavits which are a part of the record indicate that improvements
located on a forty of the SW. J, including Waldon's hotel, are worth'
five thousand dollars. As Wuldon's improvements are worth $2,500,
if he was permitted to perfect title to the land through his entry, he-
would thus become possessed of improvements to the value of $2,500
made by others. While these improvements in the form of business'
houses continue to be used and occupied for purposes of trade and
business, the laud is not subject to entry as a homestead, but may be
applied for under the townsite laws. It is not decided that if Waldon
had made his settlement in advance of any others, and for homestead
purposes, that the entertainment of the public at his homo for profit,'
would forfeit his right to perfect his title under his homestead entry,
but the evidence shows that not only was the building of a town on
this land in contemplation, but that at least three buildings were con-*
structed, or in process of construction on this quarter, before Waldon
made his settlement and commenced the erection of his hotel, and under
such circumstances he must be held to have made his settlement ])ri-
marily and chiefly for trade and business, and not for agricultural
purposes.
Your office decision is therefore affirmed.
SWAMP LAND— HOMESTEAI>— ACT OF JUNE 17, 189«.
HoLCOMB r. State of California.
The preferred right of homestead entry accorded to actual settlers, by the act of
June 17, 1892, opening the Klamath River Indian reservation, does not extend to
lands returned as swamp and overflowed, and so represented on the approved,
township surveys and plats.
Secretary Francis to the Commiscioner of the General Land Office^ Jan-
(L H. L.) uary 18, 1897. (0. J. G.)
Phineas D. Holcomb has file<l an appeal from your office decision of
June 7 J 1895, holding for cancellation his homestead entry, made May
22, 1804, for lot 5, Sec. 3, and lots 8 and 9, Sec. 4, T. 13 N., R. 1 E., Hum-
boldt land district, California, to the extent that his said entry conflicts
with the claim of the State under the swamp land grant.
The above described land is within what was the Klamath River
Indian reservation in the State of California, set apart and reserved
under authority of law by an executive order dated ^November 16, 1855.
The land is also claimed by the State of California under the swamp
land grant of September 28, 1850 (9 Stat., 519).
DECISIONS RELATING TO THE PUBLIC LANDS. S7
The act of July 23, 1866 (14 Stat, 218), as incorporated in section
2488 of the Revised Statutes, provides as follows :
It shall be the duty of the Commissioner of the General Land Office, to certify
over to the State of California as swamp and overflowed lands, all the lands repre>
sented as snch npon the approved township surveys and plats, whether made before
or after the 23d day of July, 1866, under the authority of the United States.
Surveys and plats of the township in which the land in question is
situated were made in the years 1878, 1881 and 1886. The lands within
these surveys were returned as swamp. The map of survey, conform-
able to the field notes on tile in the Humboldt land office, was approved
July 30, 1889, and the tract in question was therein segregated and
designated as swamp land.
It was upon the above showing that your office held Holcomb's
homestead entry for cancellation, as being in conflict with the claim of
the State of California.
Under the act of June 17, 1892 (27 Stat., 52), the lands embraced in
what was Klamath liiver Indian reservation were opened to settlement
under the laws of the United States granting homestead rights, and it
was stated in the second proviso of the act as follows:
And any person entitled to the benefits of the homestead laws of the United States
who hajs in good faith prior to the passage of this act, made actual settlement upon
any lands within said reservation not allotted under the foregoing proviso and not
reserved for the permanent use and occupation of any village or settlement of
Indians, with the intent to enter the same under the homestead law shall have the
preferred right, at the expiration of said period of one year to enter and acquire
title to the land so settled npon.
It is under the above act that the apx)ellant herein prefers his claim.
In his appeal to this Department he alleges that the land in question
is not swamp and overflowed land. In face of the return made by the
U. S. surveyor-general for the State of California as to the cbaracter of
this land, and numerous decisions governing such matters, it would
seem that the appellant's allegation is impotent to change the ruling
made by your office. In the case of State of California (23 L. D., L'30,
on review), vacating departmental decision of March 17, 1892 (14 L. D.,
253), it was held :
Under the first paragraph of section 2488 R. S., the return of the land as swamp
and overflowed, by the U. S. surveyor-general for the State of California, is conclu-
sive evidence as to the character of the land so returned and represented as such on
the approved township surveys and plats ; and lands thus returned must be certified
to the State as inuring thereto under the swamp grant.
In State of California v. United States (3 L. D., 621) referring to the
first clause of section 4, act of July 23; 18G6 (supra), it was said —
Under this clause, it is clear that the State has no valid claim to the land in ques-
tion, unless it is represented upon tbe approved township survey and plat, as swamp
and oversowed land, and, if the tract is so represented, then it matters not what
the real character of the land is, whether swamp and overflowed or dry, the State is
entitled to the tract. Central Pacific {{. R. Co. r. California (4 C. L. O., 151).
28 DECISIONS BELATINO TO THE PUBLIC LANDS.
In Heath v. Wallace (138 U, B.^ 573), referring to the same section,
the court said —
As held in Tubbs r. Wilhoit, supra, this section of the statute established rules or
methods for the identification of swamp and overflowed lands in California, which
superseded all previous rules or methods for that purpose. The several rules or
methods provided for were intended to meet any emergency that might arise, and
thus give to the State all the swnmp and overflowed lands within her limits. The
method provided in the flrst clause was but one of several specified in the section.
But one thing was required to be shown under this clause — only one kind of evidence
as to the character of the lands was necessary — in order to give the State the right
to demand the certiflcation cf them over to her as swamp and overflowed lands; and
that evidence the United States furnished in the plat of the survey of the township
in which the lands were situated. An inspection of the township plat would show
whether or not any lands iu the township were returned as swaiup and overflowed.
If they were, that designation was sufficient and conclnsive evidence, under the first
clause of section 4 of the act, to establish the title of the State to them.
The swamp land grant to the State of California was a grant in
praesenti taking effect at the date of the passage of the act (Wright r.
Eoseberry, 121 U. S., 488). In his appeal to this Department Holcomb
alleges that he settled on the land in question in the year 1883. He also
contends that the terms "all of the lands '' and "any lands'' employed
in the act of June 17, 1892, supra^ cover bis claim. Prior to the passage
of said act the land involved herein was embraced in the Klamath River
Indian reservation. It is true that the act of June 17, 1892, recognizes
the rights of settlers on this reservation, but at the same time it can
not be successfully contended that the said act recognized such rights
to be superior to those of the State under the swamp land grant. If
his said alleged settlement had been made upon any lands within the
reservation allotted under the first proviso of the act and reserved for
the permanent use and occupation of any village or settlement of
Indians, it would readily be conceded that such settlement by the
appellant could not avail. The act of June 17, 1892, while not in terms
excepting the lauds included in the swamp grant to the State, could not
at the same time include them without express mention. It is a rea-
sonable presumption that Congress intended by the said act to open to
settlement only those lands owned by the United States, and that it
had no intention of disposing of lands which had long since passed
from government control. When, therefore, the phrase "all of the
lands" was employed by Congress it is reasonable to suppose that all
of the land not otherwise disposed of within the Klamath Biver Indian
reservation, was meant. Fo other construction can be put ni>on the
language of the act, unless it be held that Congress intended to repeal
the swamp land act. This proposition is entirely too improbable to
require serious consideration. *
As heretofore set out a survey of the township in which this land
is situated was made as early as 1878. All the township lines were
completed in 1886. As was stated in the case of Heath v. WallacCi
suproj an inspection of the townshii> ])lat would have shown whether
DECISIONS RELATING TO THE PUBLIC LAND^. 29
OfT not any lands in the towDsbip were returned as swamp aiid over-
flowed. The appellant was thas charged with notice.
The appellant claims that he has been discriminated against, in this^
that lands in this reservation returned as swamp have in certain cases
been allotted to Indians. Provision is made in the act of June 17, 1892,
for the allotment of lands within the reservation to the Indians under
certain conditions. Without considering why allotments were made of
lands returned as swamp in the particular instances cited by appellant,
it is sufficient to say that such action could not inure to his benefit, nor
justify the Department in allowing his entry on that account. Even
though the said allotments were made through inadvertence or mistake,
that fact could not avail as a reason why the Department should allow
the api>ellant's claim in face of the prior approval of this land to the
State under the swamp laud grant.
The appellant likewise requests that action in this case be deferred
pending the disposition by the superior court of the 3tate of a suit
initiated for the purpose of determining the character of the land iu
question. It would seem that nothing could be gained by awaiting the
decision of said court as suggested. The Department would probably
not interfere with the action heretofore taken in face of the decisions
cited herein. That action is in harmony with the policy of the Depart-
ment. Whatever the decision of said court may be, it could not inter-
fere with the suggestion contained in your office decision regarding the
procurement of a relinquishment from the State by the entryman.
Your said office decision is hereby affirmed.
KAILROAD GRANT— BENEFICIARY—LANDS EXCEPTED.
Phillips v, Sioux City and Pacifio R. R. Co. (On Review).
The effect of section 17, act of Jaly 2, 1864, was not to make a new grant but to pro-
vide a new beneficiary under the original grant of July 1, 1862, as to the Sioux
City branch, and said beneficiary could only take such lands as were capable of
passing under the original grant; and would therefore not acquire title to lands
that were a part of the bed of the Missouri river at the date of the original grant.
Secretary- Francis to the Commissioner of the General Land Office^ Jan--
(L H. L.) uary 18, 1897. (J. L.)
This case involves lots 10 and 11 of section 1, and lot 1 of section 2,
containing in the aggregate 59.60 acres, in O'Neill land district,
Nebraska, in a township and range designated sometimes n>s T. 88 N.,
R. 48 W., of "oth" principal meridian, Dakota Territory, and sometimes
as T. 29 N., R. 8 E., of "6th" principal meridian, Nebraska.
The facts are stated in the departmental decision of March 24, 1896,
published in 22 L. D., 341. The decision was, that by the acts of July
I9I862 (12 Statutes, 489), and July 2, 1864 (13 Statutes, 356), Gougress
30 DECISIONS RELATING TO THE PUBUC LANDS.
did not intend to grant in presenti, as public land for railroad purposes,
a part of the bed of the Missouri river, which was then and from time
immemorial had been covered by the waters of its main channel ; and
that therefore the lots of land in controversy did not pass under the
grant.
The case is now before the Department for reconsideration ui>on a
motion for review of said decision, filed by the "Missouri Valley Land
Company, as successors in interest of the Sioux City aud Pacific Rail-
road Company, and present owner of the land grant for the benefit of
the latter company;" which motion has been entertained.
The specifications of error filed with the motion and the brief of coun-
sel filed in support thereof allege matters both of law and of fact, and
claim, substantially, that under the 17th section of the act of July 2,
1864, amending the 14th section of the act of July 1, 1862, the grant
under which the Sioux City and Pacific Bailroad Company claimed
was not a grant in presentiy but was a conditional grant, intended to
take effect infuturo, upon and after the
hftppening of certain contiugenciea, namely^ that a company should be found wiU-
ing to accept the grant and to carry out the purposes of the law ; second, that the
President should designate such company to that end; third/ that a road should be
built across Iowa or Minnesota to Sioux City; and fourth, in the absence of tiie con-
struction of a road to Sioux City as aforesaid, then such road (or company) as should
accept the promised grant by the act of 1864, might after the lapse of eighteen
months from the enactment thereof proceed to the construction of the road contem-
plated by said grant.
In specification 5, it is claimed, that
the grant by the said 17th section not being in preaenti, but rather the promise of the
future conveyance of lauds, did not become operative, and the title did not vest
until the definite location of the road on January 4, 1868.
The facts alleged by counsel, and the facts developed by reference to
the records of your office, so far as material, are:
1. That on December 24, 1864, the President by its request desig-
nated the Sioux City and Pacific Bailroad Company to construct the
trailroad from Sioux City westwardly under the 17th section of the act
of 1864. Said company filed its map of general route on June 27, 1865,
and its map of definite location on January 4, 1868.
2. That in the spring of the year 1867, the Missouri river by an
extraordinary avulsion cut for itself a new channel, and left its old
bed, which includes the lots in controversy. The surveyor general's
report, dated May 20, 1868, shows that at that datCj the greater part of
the 59.60 acres in contest was covered with the waters of an oblong
lake following in its length the courses of the old bed of the river, and
found to be impassable by the surveyor who had been sent out on April
30, 1868, to examine, survey and report upon the changes made by said
avulsion. The waters of said lake were evidently waters lefb by the
Missouri river, which had not evaporated or been absorbed enough to
uncover the land. It is a fair inference as matter of fact, that on
DECISIONS EELATING TO THE PUBLIC LANDS. 31
January 4, 1808, the date of definite location, nearly if not quite all of
the land in contest was covered by said lake.
From the standpoint of the railroad company, the foregoing facts
suggest for consideration by the Department three questions : Whether
under the grant title passed to the company, on December 24, 1864, the
date of the President's designation by request; or on June 27,1865,
the date of the filing of the map of general route, which was certainly
an acceptance by the company of the Presidential designation; or on
January 4, 1868, the date of the definite location ?
This Department is of opinion that the acts of July 1, 1862, and July
2, 1864, were laws of the land, as well as grants of public property,
and that the grants of certain odd-numbered sections of public land
described in the act of 1862 were grants in presenti. The Union Pacific
Railroad Company, a corporation provided for by said act, and the
grantee named therein, was not then in existence, and did not come
into existence for several months after the passage of the act, upon
compliance with the terms and conditions prescribed by Congress.
Whatever may have been the common law rule in respect to the neces-
sity for a grantee in esse at the date of a grant, it was so far modified
by the act of Congress, that the non existence of the grantee at the
date of the grant did not in this case prevent the grant from taking
effect immediately.
In the case of the Missouri, etc., B. K. Co. v. Kansas Pacific B.B. Co.
(97 U. S., 497), the court said :
It is always to be borne iu mind in construing a congressional grant, that the act
by which it is made, is a law as well as a conveyance, and that such effect must be
given to it as wiU carry out the intent of Congress. That intent should not be
defeated by applying t-o the grant the rules of the common law, which are properly
applicable only as to transfers between private parties.
By the 17th section of the act of 1864, Congress released the Union
Pacific Railroad Company from its obligation to build the branch from
Sioux City westward, and provided for the substitution of another
grantee of the lands previously granted to aid in the construction of
said branch, to be thereafter designated and ai)proved by the Presi-
dent. The effect of this legislation was not to make a new grant but
to provide a new beneficiary under the original grant of July, 1862, as
to said branch. Such new beneficiary was to be entitled, in aid of the
construction of said branch, to the lands granted by the said original
act. In other words, it was to take and could take such lands only as
were in existence at the date of said original act, and of the character
described therein, and capable of passing thereunder.
It is therefore held that upon the designation and approval by the
President, on the request of the company, as provided, the lands
granted by the original act iu aid of the Sioux City branch, passed to
the designated company; and that the lots of land here iu question
being, at the date of the original grant of July, 1862, part of the bed
of the Missouri river, did not pass to said new beneficiary company.
32 DECISIONS EELATINQ TO THE PUBLIC LANDS.
It is unnecessary to consider and decide any other question presented
in connection with the application for review and reconsideration. For
the reasons above stated the departmental decision of March 24, 1896^
is adhered to.
OKLAHOMA L.ANI>S-SETTLEMENT RIGHTS.
Bradford et al. v. Doty.
Where tiiere is doabt as to the actual boundary of lands about to be opened to set-
tlement, and a government official, for the purpose of securing equal opportnui-
ties to all, designates a line from which the run shall be made, it is incnmbt^ut
upon one who disregards such designation to show that by such action he gained
no advantage over others.
Secretary Francis to the Commissioner of the General Land Office, Jan-
(I. H. L.) uary 18, 1897. (C. J. W.)
On September 22, 1891, Charles J. Doty made homestead entry No.
7761, lor lots 1 and 2 and the E. J of the WW. J, Sec. 18, T. 17 K, K. 1
£., Gathrie, Oklahoma.
On October 1, 1891, Harry Pulliam filed his affidavit of contest; aUvg-
ing that Doty entered on and occapied said laud before noon of Sep-
tember 22, 1891, and that he (Pulliam) settled on said laud immediately
after twelve o'clock, noon, of September 22, 1891, before Doty or any
one else had made a legal settlement thereon.
On October 5, 1891, Nettie J. Bradford filed her affidavit of contest^
alleging that she made settlement on said land immediately after noon
of September 22, 1891, and that she has improved the land, and resides
on it, and that she made her settlement before either Doty or Pulliam
and before Doty made entry.
A hearing was had at the local office at Guthrie on March 29, 1892,
at which all the parties appearea and submitted testimony.
On December 17, 1892, the local officers found as follows:
The land embraced in this proceeding lies immediately east of the meridian line
in the Iowa country and north of Langston, Oklahoma.
All of the parties, Doty, Pulliam, and Bradford, testify that they were along the
meridian line at noon, September 22, 1891, and immediately after twelve o'clock of
said day they stepped across the line, claimed and staked said tract of land as a
homestead. As shown by the evidence in this case, exactly where the meridian line
was, as understood by those congregated along the line at Pulliam's farm, was
uncertain and unknown. Some of the people assembled there thought the fence of
Pulliam (father of Harry) was on the line, and others were under the impression
that the Iowa line was east of the fence. With this uncertainty touching the Iowa
or meridian line the bour of twelve o'clock, September 22, 1891, arrived, and at the
signal given by the marshal *' to go,*' the respective parties according to their tes-
timony ''rushed*' on the claim in dispute and set their stakes and claimed the
same as a homestead a few seconds after twelve o'clock noon, September 22, 1891,
The substance of the testimony of Lillian Hewitt is, that she was '^standing right
west of the gap cut by Harry Pulliam in his father's wire fence, and that Harry
DECISIONS KELATING TO THE PUBLIC LANDS 33
Palliam was also standing west of the gap, and when the word was given *Ho
go,'' Harry PuUiam ran and stack his. stake on the claim in controversy; that
Doty stood to the south of the post where the wire was cat, and on the east side of
the fence; that Mr. Rlggs told Doty that he had better step back inside of the fence
or he woald be a ** sooner;'' that Doty paid no attention to the suggestion of Mr.
Higgs; that Harry Pulliam stuck his stake before Doty did his on "that corner;"
that PoUiam's stake was six or eight feet Arom the line or wire fence. The testimony
of Samuel Dennison discloses that PuUiam has almost 160 acres fenced ''lacking a
little;" that Doty has about three acres broken; that no cornerstone was found,
and that witness did not know where the correct corner stones were located.
Nathaniel H. Potter testified that he was on the line of the Iowa country Sep-
tember 22, 1891, and saw Miss Nettie J. Bradford standing near the corner of the
land in contest with a board or stake in her hand, and that she has continuously
resided on said claim.
The testimony of James Miller discloses that Miss Bradford has been living on
the claim in dispute from the 8th of November to April, 1892.
Ab shown by the testimony of Charles Gandell, Miss Bradford on the opening day
was at the comer post of Mr. Pulliam's fence and jumped over and stuck her stake
there like the rest of them did.
Miss Nettie J. Bradford testified that she made settlement on the land in contro-
versy directly after twelve O'clock September 22, 1891, and when the signal was
given she stepped four or five steps and set her stake. It will be noticed that Miss
Bradford was standing near the northwest corner of the land iu contest and about
half a mile north of Doty and Pulliam, at noon of September 22, 1891. By implica-
tion Nettie J. Bradford and Harry Pulliam in their contest affidavits charge Charles
J. Doty with having entered upon and occupied said tract of land in violation of
law and the President's proclamation. If we are correct in our conclusions to this
implied charge on the part of ^iss Bradford and Harry Pulliam against said Doty,
it necessarily follows, in our judgment, that they admit that Doty made prior set-
tlement upon the land in dispute September 22, 1891. In our opinion Doty located
on said tract of land on the opening day as quickly as either of the other parties in
this proceeding. Doty, however, testified that he was standing on the east side of
the fence with one leg under the wire; that no one spoke to him or said anything
about being a *' sooner;" that there was no one spoke to him or laid their hands on
him outside of Mr. Ballard (the marshal); that the first intimation he received in
regard to being a ''sooner" was after he had stuck his stakes. As between Doty
and Palliam, Doty testified that he did not know which of them stuck his stake
first on the claim in controversy (page 389).. The testimony of Harry Pulliam
touching the time when he ''jumped across the line and stuck a stake the first
thing" in substance is, that Doty was standing southeast of Pulliam on the east
line of the wire fence and immediately after the run Doty was noticed by Pulliam
a little south and a little west distant about eight or ten feet (page 323). According
to Pulliam's testimony. Doty being a little south and a little west of Pulliam is
evidence that he had not traveled as far as Pulliam from the line, and therefore
everything being equal (and there is no evidence to the contrary) stuck his stake
first, possibly.
The testimony, however, of Doty on this point controls our judgment, inasmuch as
he testified that he did not know whether Pulliam stuck his stake first or not,
therefore we accept his testimony and the testimony of Pulliam and Miss Bradford,
and find that we do not know from the evidence in this case which one of the parties
in this proceeding, Doty, Pulliam, or Miss Bradford, first made settlement ou the
claim in dispate in the afternoon of September 22, 1891. So far as the meridian line
being where the east wire fence was located on Pulliam's claim is concerned, the
snbstance of E. C. Dodd's testimony on this question is, that by using a transit as
testified to by F. S. Pulliam, accuracy could not be obtained ; and that in order to
10671— VOL 24 3
34 DECISIONS RELATIKG TO THE PUBLIC LANDS.
secure accnntry, the proper deflection of the needle, the difference of time from
the original survey, the proper variations and the solar system would be necessary
to secure accuracy.
F. S. Pulliam in his testimony disagrees with Surveyors McCoombs and Dodd, as
to the correct method of ascertaining the meridian, standard correction and town-
ship lines. Mr. Pulliam testifies that at the time he boilt his fence the Iowa reserva-
tion had not been allotted, and that he put his fence on the cast side of his claim in
order to take in all of his ground on the east side of the same; that he knew that
thirty-three feet on each side of the section line should be left for road purposes;
that there was a trail along the east line of bis fence, and that a considerable num-
ber of the people living north used this trail or road. On page 299 of record, Mr.
Pulliam testified that he moved his first fence put along the east side of his claim,
west about twenty feet, and that he intended to leave twenty feet "for the road;-'
that he kuew that the law required thirty- three feet on each side of the section line
should be left for a road, but did not believe the lawappfied to the boundary line of
the Territory. By an act of Congress it is provided that a space of sixty -six feet
shall be left between the sections in Oklahoma for the use of the public as a high-
way ; we know of no law that provides for a different rule along the boundary line
of the Territory which constitutes,' as claimed by F. S. Pulliam, forty feet insteati of
sixt^'-six feet as a public highway along the boundary line of Oklahoma. If our
position is correct in the premises, it follows, we think, that Pulliam's fence on the
east side of his claim, according to his testimony, was thirteen feet west of the Iowa
or meridian line on the opening day, and hence according to the evidence in this
case, neither Pulliam nor Doty made their first settlement on the claim in dispute, but
settled and staked upon Oklahoma lands homesteaded by F. S. Pulliam, father of
contestant Harry Pulliam. However, the uncertainty about where the legal location
of the meridian line was at the time and place when the respective parties made set-
tlement on said claim in the afternoon of September 22, 1891, and the unusual cir-
cumstances attending their settlement upon said tract of land, creates so many
doubts in our judgment, that we cannot arrive at any conclusion in this case different
from the findings of the Hon. Commissioner of the General Land Office in the case of
Miranda O. Jackson, now Cox,ef al. v. Samuel G. Garrett (letter " H^' June 30, 1894).
In the case referred to, the land immediately south of that in controversy was taken
on the opening day by the parties mentioned in said decision under similar circum-
stances as the one in dispute was taken by Doty, Pulliam and Miss Bradford, all of
the parties on the opening day stepping across the line and claiming the respective
tracts of land as a homestead. We are of the opinion that the rule applied by the
Hon. Commissioner of the General Land Office in the case of Miranda O. Jackson et
aL V. Garrett, so far as division, etc., applies in the case now before us.
Therefore we recommend that Charles J. Doty, the entryman, Harry Pulliam, first
contestant, and Nettie J. Bradford be allowed to make a division of the land in con-
test, having regard for the legal subdivisions, and that if they are unable to come to
an agreement that the claim be sold to the highest bidder of the three.
From this decision Doty and Pulliam appealed to your office.
On May 11, 1895, your office found as follows :
So far as the evidence shows the facts, I am of the opinion that Doty violated the
law by voluntarily and purposely entering on the land before noon of September 22,
1891, and that he is, therefore, disqualified. Homestead entry No. 7761 is therefore
held for cancellation.
As both Miss Bradford and Pulliam have made a reasonable compliance with the
law by their improvements and residence on the land, and as Miss Bradford's
improvements are on the north half and Pulliam's principal improvements on the
south half, it would be but equitable to divide the land between them, and it is so
ordered.
DECISIONS RELATING TO THE PUBLIC LANDS. 35
From this decision Doty has appealed. The chief grounds of excep-
tion to your office decision are, that it was error to hold:
1. That he was a "sooner" and disqualified.
2. That it was error to hold that the east line of PuUiam's fence was
exactly on the meridian line,
3. That it was error to hold that
the belief that the Piilliam fence was on the meridian line was acted on by the
deputy United States marshal on duty at that place, and who advised the parties
there, September 22, 1891, for the purpose of making settlement, to remain on the
west of said line until the signal was given, which advice seems to have been fol-
lowed with very few exceptions.
This last assignment of error presents the vital question in the case.
The record sustains your office as to fact that the deputy U. S. marshal
acted on the belief that the Pulliam fence was on the meridian line,
which was acquiesced in by the bulk of the people present. For the
purpose of securing equal chances to all, the officer in charge had the
right to locate and point out the line from which all should start.
Doty did not acquiesce in this decision and belief, but stayed outside,
and made his start from the outside of the fence. Presumably, in so
doinfi^ he acquired advantage over those who stood inside the fence, and
he at least assumed the burden of being able to show that he gained
no advantage over Pulliam and Miss Bradford by so remaining outside.
This he has failed to do, and it follows that his entry must be canceled.
This disposes of Doty's entry, and leaves the controversy between
Pulliam and Miss Bradford. They seem to have made little eflfort to
show any precedence of the one over the other as to the time each
staked the claim. They are upon terms of equality in the matter of
improvements. Neither the local officers nor your office has under-
taken to settle the question of priority in settlement as between them.
Miss Bradford has not appeared as an appellant at all. Pulliam has
not appealed from your office decision, wherein you award half of the
tract by subdivisions, on which her settlement and improvements are
located, to Miss Bradford. Their consent to this adjustment is inferred,
from their mutual acquiescence, and there being no longer an entry in
question, your office decision is affirmed.
SOr.DI£R8 ABDrriONAI* HOMESTKAD-CERTIFICATE OF RIGICT.
John H. Howell.
Soldiers additional homestead certificates of right, regularly issued, and located by
boDA fide purchasers thereof, but thereafter canceled for illegality, and so remain-
ing unsatisfied at the passage of the act of August 18, 18d4, are by said act vali-
dated, and may be reissued for the benefit of a bona fide purchaser thereof.
Secretary Francis to the Commiaaioner of the General Land Office^ Jan-
(L H. L.) nary 18, 1897. (F. W. C.)
With your office letter of December 12, 1896, were forwarded the
papers in the matter of the appeal of John H. Howell from the action
36 DECISIONS RELATING TO THE PUBLIC LANDS.
of your office taken in the decision of October 12, 1896, denying his
application for re-certification of the certificates of additional right
under section 230G of the Eevised Statutes in the names of Mary Rol-
lins, Bichard W. Hunt, and Lorenzo J. Rowland.
This matter has been made special upon the recommendation of your
office, it being stated that a decision thereon will form a precedent to
be followed in other cases.
The history of the certificates of additional right herein involved, as
gathered from your office decision, is as follows:
The certificate in the name of Rollins was located at Fargo, North
Dakota, May 6, 1879. By your office letter " C " of June 10, 1884, the
entry was adjudged illegal for the reason that the signatures of the
witnesses and the entrymau are written by one and the same x>6i'son.
Further, that the name of James F. Rollins, on whose account the cer-
tificate was issued, is not found upon the rolls of Company ''A^ Second
Arkansas Infantry, as claimed. The party in interest was therefore
allowed sixty days within which to show cause why the entry made
upon the location of said certificate should not be canceled, or apply to
purchase the tract under the provisions of the act of June 15, 1880 (21
Stat, 237).
On September 10, 1884, Stephen E. Randall, who claimed to be tbe
then owner of the land under transfer from the entryman, purchased
the tract under the provisions of the act of June 15, 1880, and upon
said cash purchase patent issued.
The certificate issued in the name of Hunt was also located at Fargo,
Forth Dakota, May 28, 1879, and by your office letter "C" of April 20,
1882, Hans Larson, who claimed to be the party in interest under said
entry, was informed that the papers ui)on which the entry was based
were of doubtful execution and he was therefore allowed sixty days
within which to establish the legality of the papers or file proper appli-
cation to purchase tbe tract under the provisions of the act of June lo,
1880 (supra)'. He availed himself of the latter jnivilege, and upon his
purchase patent issued.
The certificate issued in the name of Rowland was also located at
Fargo, North Dakota, May 5, 1879. After said location Rowland filed
an affidavit in which he charged that he never executed the papers
upon which the certificate and entry were based, and upon the testi-
mony taken at a hearing ordered on said allegation the certificate was
held to have been fraudulently obtained and was canceled together with
the entry made thereon.
It appears that all three of the certificates before referred to were
held by Charles D. Gilmore under powers of attorney which practically
amounted to a sale of the right, in which the power to locate and to sell
the land and to appropriate the proceeds thereof was given to Gilmore,
the power being made irrevocable in consideration of the sum of one
hundred dollars.
DECISIONS RELATING TO THE PUBLIC LANDS. 37
Gilmore it appears transferred these rights to William Milliken, whose
same was snbstitated in the powers of attorney before referred to, and
by said Milliken, as attorney in fact, the location of the certificates was
made.
These certificates it would appear were illegally obtained, but there
is nothing in the papers to connect Milliken with the frauds, and your
office decision in no wise questions the bona fides of his purchase. The
certificates issued have never been satisfied: it appearing that two of
the parties invoked the provisions of the act of June 15, 18S0, to enable
them to purchase their lands, because of the "attempted" but inef-
fectual transfer; and the other party losing the land entirely by cancel-
lation of the entr3^ From an afBdavit executed by Howell, accompanied
by a bill of sale executed by Sarah M., and Ida C. Milliken, it would
appear that he (Howell) purchased the rights under said certificates
from Sarah M. and Ida C. Milliken, the widow and surviving child of
William Milliken, deceased, on August 1, 1806.
Howell's application for re certification of the right was made under
the act of August 18, 1894 (28 Stat., 397), as construed in the Pillsbury
case (!i2 L. D., 699). Your office denies the application for the reason
that two of the tracts covered by the location of the certificates of right,
in the names of Eollins and Hunt, were perfected under the act of June
15, 1880,
and it is not shown that the parties who purchased the tracts from the government
were reimharsed by MUIiken or his heirs for their outlay for a worthless title.
(Farther) it appears of record that Howell drew the several entries above men-
tioned from the files for examination at loast as early as June 15, 1896; hence, prior
to his purchase of these certificates ho was aware of their invalidity. It is therefore
held that he is not an innocent purchaser in the meaning of the act of August 18, 1894.
These objections I do not deem su^cient ground upon which to deny
the right applied for.
As to the reimbursement to the persons who, in order to, secure title
to the lands covered by the locations of these certificates issued in
the name of Rollins and Hunt, were obliged to purchase the lands
at the government price, this is purely a matter between the parties
in the settlement of which this Department can have no interest, inas-
much as the right to reimbursement, if any exists, cannot be regarded
as a lien upon the certificates.
The question remaining for consideration is, therefore, whether these
certificates were confirmed by the act of August 18, 1894 {supra), for if
they were, Howell did not on August 1, 1896, purchase invalid certifi-
cates but validated certificates.
In the case of John W. Eankin (on review 21 L. D., 404), it was held:
Bnt in the light of the history of this legislation, I am constrained to believe that
the words, ''all soldiers' additional homestead certificates heretofore issued/' etc.,
should not be limited to validating the transfer of certificates heretofore issued, and
in the hands of bona fide holders. This view is strengthened by the fact that the
matter of transfers is dealt with by the secimd section of the act, and the language
38 DECISIONS RELATING TO THE PUBLIC LANDS.
^'notwithstanding any attempted sale or transfer thereof/' at the end of the first
flection, should not be construed to limit the operation of the act short of the obvioas
intent of Congress.
There is nothing in the record to question the bona fides of Milliken''s
purchase of these certificates of additional right, and as the same were
regularly issued by your oflSce and were never satisfied, under the
decision just quoted from, it must be held that said certificates were
validated by the act of August 18, 1>94 {supra).
By his purchase Howell succeeds to the rights of Milliken's heirs, ami
the action of your office denying his application for recertification of
the right under said' certificates is reversed.
ftOLDIER'S 1IOMESTKA13— TIME AX.LOWEl> FOU EXTKY.
Caeney t\ Byers.
A soldier who has filed a homestead declaratory statement is Entitled to six calendar
months after such filing within which to make entr3^ and eommeuoe settlement
and imx)rovemeut; and in the computation of such time the day of filing the
declaratory statement should be excluded, and the last day of the specified
period included.
Secretary Francis to the Commissioner of the General Land Office^ Jan-
(L H. L.) uary IS, 1897. (W. M. W.)
The case of David W. Carney v. John M. Byers has been considered
upon the appeal of the former from your office decision of August 1,
1895, affirming the judgment of the local officers denying said Carney
the right to make homestead entry under his soldier's declaratory state-
ment, and dismissing his contest against the entry of Byers for the
SW. J of Sec. 9, T. 20 N., R. 10 W., Alva, Oklahoma, land district.
The record shows that on April 23, 1894, Carney filed soldier's declara-
tory statement for the land in question.
On October 23, 1894, Byers made homestead entry for the tract.
On October 24, 1894, Carney made application to make homestead
entry of the tract under his soldiers declaratory statement, which was
rejected for contiict with Byers's entry.
On the same day Carney filed an affidavit, in which he stated, among
other things, after referring to Byers's entry:
That said homestead entrj^ is fraudulent in this : That the said John M. Byers made
said entry subject to the right of said David W. Carney, who had filed a soldier s
declaratory statement for said tract of land April 23, 1894, and had made a valid set-
tlement upon the same the last of July, 1894, hy going upon said land and building
him a frame house and digging him a good well for water, and making other valuable
improvements upon said land, and remaining upon said land till about the middle
of September, 1894, and at which time he went down into the Chickaaaw country
in the territory to look after a crop he had planted there the season prior to thivS
time. And on the 17th day of September, 1894, ho started to the U. S. Land Office at
Alva, O. T., to perfect his entry, or place his homestead entry upon said tract of hind,
distance of about two hundred miles, and was driving over land when one of his
horses became sick, and he did not reach the land office till on the morning of the
f
DECISIONS RELATING TO THE PUBLIC LANDS. 39
24th day of October^ 1894, and he found out that one John M. Byers, the defendant,
had filed said homestead entry on said tract of land the day before. And affiant now
claims his right to enter said land on the grounds of prior settlement and improve-
ment, and that he is the only person who ever made any settlement and improvement
on said land.
On May 6, 1895, the register and receiver sustained Byer^'s motion to
dismiss Carney's contest.
Carney appealed.
On August 1, 1893, your office, after reciting the fiicts, found that:
It follows that Carney can claim no rights under his Koklier's declaratory state-
ment for more than six months from the date of his filing had elapsed >vhcn he
attempted to make homestead entry of the land, and the tiling of a soldier's declara-
tory statement exhausts the homestead right.
Thereupon the judgment of the local officers was affirmed.
Carney appeals.
It is claimed in argument on behalf of Carney, that Byers's entry was
made before the time had elapsed in which Carney had to appear at the
local land office and tile his ^^ regular homestead affidavit."
The material question for determination is, whether Carney made his
application to enter within the time allowed therefor under the law. If
his application to enter was made within the time allowed by law in
cases of soldiers^ (declaratory statements, then it was erroneous for the
register and receiver to reject his application, and your office decision
affirming their judgment was erroneous. If his application was not filed
within the time allowed by law to moke entry in such cases, there was
no error in the judgments below.
Section 2304 of the Revised Statutes allows every private soldier and
officer who has served in the army of the United States during the
recent rebellion for ninety days, and who was honorably discharged,
and has remained loyal to the government, to enter one hundred and
sixty acres, or one quarter section, of certain public lands, of the char-
acter therein described, or of
other landii subject to entry under the homestead laws of the United States; bat
such homestead settler shall be allowed six mouths after locating his homestead and
filing his declaratory statement, within which to make his entry and commence his
settlement and improvement.
Section 2309 provides :
That every soldier, sailor, marine, officer, or other person coming within the )}to-
visioDB of section two thousand three hundred and four, may, as well by an agent as
in person, enter upon snch homestead by filing a declaratory statement, as in pre-
emption cases ; but such claimant in person shall within the time prescribed make his
actnal entry, commence settlements and improvements on the same, and thereafter
falfiU aU the requirements of law. ,
As a matter of law, it is clear that a soldier who has filed a declara-
tory statement is entitled to six months time after filing such declaratory
statement to make his entry and commence his settlement and improve-
ment. The term six months, as used in the statute, means calendar
months.
40 DECISIONS RELATING TO THE PUBLIC LANDS.
When the computation of time is to be made from an act done, the
role is to exclude the day on which the act is done, and include the last
day in the specified period.
In Sheets v, Selden's Lessee (2 Wallace. 177-190), the supreme court
of the United States very clearly and concisely states the rule respectr
ing the computation of time as follows:
The general carrent of the modern aathorities on the interpretation of contracts,
and alBO of statutes, where time is to be computed from a particular day or a partie-
nlar event, as when an act is to be performed within a specified period /rom or afiir
a day named, is to exclude the day thus designated, and to include the last day of
the specified period. ''When the period allowed for doing an act,'^ says Mr. Chief
Justice Bronson, "is to be reckoned from the making of a con tracts or the happening
of any other evebt, the day on which the event happened may be regarded as an
entirety, or a point of time; and so be excluded from the computation."
Applying this doctrine to the case at bar, Carney was entitled to full
six calendar months' time after the 23d day of April, 1894 — the date of
filing his soldier's declaratory statement — in which to make his entry
thereunder. Excluding the day on which Carney's soldier's declara.
tory statement was filed, the six calendar months allowed him there-
after in which to make his entry would expire with and includiug the
24th day of October, 1894. His application to enter being offered on
said date was in time, and should have been allowed.
Byers's entry was made before Carney's six months to make entry
under his declaratory statement had expired, and for that reason
Byers's entry was made subject to Carney's right, under the law and
regulations, to make his entry. Instead of rejecting Carney's applica-
tion to enter under his soldier's declaratory statement for conflict with
Byers's entry, Carney's application being made within the time allowed
should, as a matter of right, have been allowed, and such allowance
would have operated to exclude Byers's claim, and his entry should
have been canceled. See General Circular, p. 23.
Your office decision appealed from is therefore reversed, Byers's
entry will be canceled, and Carney will be permitted to make entry of
the tract under his application of October 24, 1894.
RAILROAD GKAXT-IXl>E>rN^ITY SELEC^TIOX.
KoRTHEBN Pacific R. R. Co. r. AYERt*.
An indemnity selection of unsurveyed land should be canceled, not suspended to
await survey.
Prior to selection the lands within the indemnity limits of the Northern Pacific grant
are open to settlement and entry.
Secretary Francis to the Commissioner of the General Land Office^ Jan-
(I. H. L.) uary 18, 1897. (J. L. McC.)
I have considered the case of the Northern Pacific Railroad Com-
pany V. Clara M. Ayers, involving her desert land entry for the E. § of
Sec. 3, T. 8 N., R. 1. E., Bozcmau land district, Montana.
I>ECI8I0N8 RELATING TO THE PUBLIC LANDS. 41
The land described is within the indemnity limits of said railroad,
and was included in the withdrawal of February 21, 1872, upon general
Foate. Upon the definite location of the line of said road, on July 6,
1882, it nv^as foand to be within the indemnity limits, and was ordered
withdra^rn l>y your office letter of June 9, 1883. Said indemnity with-
drawal, liowever, has been held to be without validity or eflfect, and
consequently no bar to settlement and entry under the public land
laws.
On March. 20, 1885, the company selected lots 1, 2, 3, and 4, the SW. ^
of the IJIE. J, the S. i of the NW. i, and the N. i of the SW. 4, of said
See. 3; and on June 23, 1885, it selected the SE. i of the NE. J of
said section.
Inasmncb as Clara M. Ayers' desert-land entry was made (August 5,
1893), subsequently to the date of said selections by the company, the
latter acquired the prior and paramount claim to such of the tracts as
had been surveyed, to- wit, lots 1 and 2, and the SW. J of the NE. J of
said Sec. 3 ; and your office, by decision of August 20, 1895, properly
held the desert land entry for cancellation iu so far as it embraced said
tracts.
The SE. 4 of the NE. J of said Sec. 3 was, at the date of your said
office decision, unsurveyed; your office therefore held that it was not
subject to selection by the railroad company, and held its list for can-
cellation in so far as it embraced said tract.
The railroad company has appealed, alleging that your office was in
error, (1) in holding that the SE. J of the NE. i was not subject to
selection by the railroad company, because unsurveyed. It contends
tbat —
Instead of canceUing the company's selection for the SE. i of the N£. I of this
seetion, the Commissioner should have suHpended the same to await acceptance of
the survey.
In the case of the Northern Pacific Kailroad Company (15 L. D., 8),
tbe company selected lands of which it is said that ^^ after an examina-
t>iou of the plats," it was "found practicable to protract the lines of
survey of the a<]yoining sections of which survey had theretofore been
made so as to include the two southwest quarters, selected by the com-
pany." Your office rejected the selection. The company appealed,
contending that —
the establishment of the three comers and the snrvey of the exterior lines completed
the field sorvey ; and making and tiling of the plat of the same by the surveyor
f^eneral sufficiently identified the land to admit of their selection.
But the Department affirmed said decision, saying:
No plat of survey of the tracts in question was approved or on file in the district
office or anywhere else at the date of the railroad selections; it follows that said
selections were properly rejected.
The selections were not suspended "to await the acceptance of the
survey." I do not think that it would be proper practice to pursue
42 DECISIONS RELATING TO THE PUBLIC LANDS.
such a coarse, and allowing lands to be 'Hied up-' for an indefinite
period by selections made prior to survey. If such " suspended" selec-
tions were to be considered a bar to settlement or entry, tbey might
better be allowed. If they were to be considered no bar thereto, they
might better be canceled.
(2). The company contends further that, inasmuch as the SE. J of the
!NE. J was uusurveyed, "it was error not to have canceled the desert-
land entry of Clara M. Ayers for the same."
It having been decided that the railroad company has no valid claim
to said SE. ^ of the NE. J, the question as to what course the govern-
ment may pursue with regard to Mrs. Ayers' desert land entry for the
same is one solely between the government and her, with which the
railroad company has no concern.
(3). The question as to whether land within the indemnity limits of
said company is subject to settlement and entry prior to selection has
been decided in the affirmative by the Department in the case of said
company against Jennie L. Davis (19 L. D., 87), and many others.
I concur in the conclusions reached by your office in the decision
appealed from, and therefore affirm the same.
K^ULROAD LAXnS-SECTION 5, ACT OF MARCH 3, 1887.
Lincoln r. Sowers.
The right of purchase under sectiou 5, act of March 3, 1887, is not defeated by a
prior adverse application to enU'r under Trhich no settlement right is asserted.
Land subject to indemnity selection, and sold to a purchaser in good faith, as a part
of the grant, may be purchased under said section, though no selection of the
land was made by the company.
Secretary Francis to the Commissioner of the General Land Office^ Jan^
(1. H. L.) uary 18, li^97. (E. M. R.)
This case involves the S>¥. i of the SE. J of See. 8, T. 84 N., R. 23
W., Des Moines land district, Iowa.
The record shows that your office, on July 8, 1875, ordered a hearino^
in the case of Edward W. Templeman r. Cedar Rapids and Missouri
River Railroad Company, the former having applied to make soldier's
additional homestead entry for the tract in controversy, together with
other land. Subsequently, on February 13, 1879, your office notified
the local officers that it was not necessary to have the hearing ordered,
in view of the decision of the Department holding that a homestead
entry of record, uncanceled, segregated the land and was sufficient to
defeat the grant in behalf of the Cedar Rapids and Missouri River
Railroad Company, made on June 2, 1864 (13 Stat., 9o), and the records
of your office showing that one Becktels had made homestead entry for
the tract on February 0, 1803, which remained of record until canceled
on April 29, 1872. 1' our office therefore held that this tract of land was
DECISIONS RELATING TO THE PUBLIC LANDS. 43
excepted from the operation of the grant in behalf of said railroad com-
pany. Of this action the attorneys for the railroad company were
notified by letter of October 14, 1893, and the local officers were
instructed to notify Templeman. On March 8, 1S94, the local officers
reported that after repeated attempts they had failed to serve him.
On June 26, 1894, the local officers transmitted the application of
George B. Lincoln to make homestead entry of the land in controversy,
and the alternative applications of James W. Sowers, either to enter or
purchase under section 5 of the act of March 3, 1887.
From the application of George B. Lincoln it appears that it was filed
on June 14, 1894, and was rejected by the local officers because of the
pending application of Templeman ; from which action Lincoln appealed,
asserting that Templeman had no interest in and to this tract, as was
shown by a letter from said Templeman to the attorney of Lincoln,
dated Adel, Iowa, January 9, 1894, in which he said, 'M have taken up
all of my government lands that are due me." It appears further that
the attorney of Lincoln had sought for Templeman with the intention
of purchasing his preference right, and that this was his reply to such
attempt.
In reference to the application of James W. Sowers, it appears that
this was filed on June 18, 1894, — four days later than that of Lincoln, —
and being rejected, Sowers took appeal. Sowers made application to
enter as an adjoining farm homestead, he being the owner of the
remainder of the said SE. ^. It further appears in his affidavit, that
he sets forth that he and his grantors ^'have been in open, actual and
peaceable possession" of said land '^from May 15, 1868, until the present
time, claiming to be the owners thereof, and that my claim of title is
derived as follows." And it further appears that the Cedar Bapids and
Missouri Biver Bailroad Company, claiming this land under the said
act of June 2, 1864, sold, on May 13, 1868, to one Francis B. Hughes;
and then by regular conveyances of warranty deeds this tract came
into possession of Sowers on February 14, 1880; and he asked that he
be allowed to purchase.
Your office decision of August 1, 1895, passing upon the issues thus
joined, rejected the application of Lincoln and allowed Sowers to pur-
chase under the act of March 3, 1887; from which action Lincoln
appealed.
The section under consideration is as follows (24 Stat., 556, Sec. 5) :
That where any said company nliall have sold to citizens of the United States^ or
to persons who have declared their intention to become such citizens, as a part of
its grant, ]ands not conveyed to or for the use of such company, said lands being the
Tinmbered sections prescribed in the grant, and being coterminous with the con-
structed parts of said road, and where the lands so sold are for any reason excepted
from the operation of the grant to said company, it shall be lawful for the bona fide
purchaser thereof from said company, to make payment to the United States for said
lands, at the ordinary government price for like lands, and thereupon, patents shall
issue therefor to the said bona fide purchaser, his heirs or assigns : Provided j That
44 DECISIONS RELATING TO THE PUBLIC LANDS.
all lands shall be excepted from the provisions of this section, which, at the date
of such sales, were in the bona fide occnpation of adverse claimants nnder the pre-
emption or homestead laws of the United States, and whose claims and occupations
have not since been voluntarily abandoned, as to which excepted lands the said pre-
emption and homestead claimants shall be permitted to perfect their proofs and
entries, and receive patents therefor : Provided fnriher^, That the said section shall
not apply to lands settled upon, subsequent to the first da}' of December, eighteen
hundred and eighty-two, by persons claiming to enter the same under the settlement
laws of the United States, as to which lands the parties claiming the same, as afore-
said, shall be entitled to prove up, and enter, as in other like cases.
In the case of Jenkins et at. v. Dreyfus (19 L. D., 272), in construing
said section, it was said (syllabus):
The right of purchase nnder section 5, act of March 3, 18S7, is not defeated by an
adverse application to enter made after the passage of said act, nor by an application
to enter pending at the passage of said act under which no settlement right is alleged.
And on the same line was decided the case of the Union Pacific Rail-
road Company v. Norton (on review), 19 L. D., 524; and also tbe case
of Setbman r. (31ise, 17 L. D., 307.
It is further objected by tbe appellant, that this land being a part of
an even numbered section, the above cited opinions have no bearing.
While the even numbered sections within the primary limits were not
specifically granted as lands in place, they were by the act of 1864 made
subject to indemnity selection in satisfaction of a loss in place. See
case of Cedar Eapids and Missouri River Railroad Company ef al, r.
Herring (110 U. 8., 27), wherein it was held that the purpose of the said
act of 1864, among other things, was —
To adjust the amount of lands, to which the company would he entitled under this
new order of things, and to enlarge the source ttom which selection might be made
for the loss of that not found in place.
And the court further said —
This latter is accomplished by declaring that all the sections within the fifteen^
mile limits shall be subject to such selection on the same terms on which only alter-
nate sections could previously be selected.
Your office in its decision erred in treating this land as land within
the primary limits and that the entry of Becktels excepted it from the
operation of the grant. Being lands whereof indemnity selection could
be made, the right of selection would exist at any time when the record
was clear.
In the case of Pierce et al. r. Musser-Sauntry Company (19 L. D., 136)
it was held (syllabus) :
Lands lying within railroad indemnity limits, not required in the final adjustment
of the grant, nor selected on behalf of the same, but sold as a part of said grant to
purchasers in good faith, are of the character subject. to purchase under section 5,
act of March 3, 1887.
This would seem to be ample authority for holding that Sowers' appli-
cation to purchase should be allowed, though no selection was made of
this tract by the company.
DECISIONS RELATING TO THE PUBLIC LANDS. 45
In the opinion supra it was said, in speaking of the title of the rail-
road company, ^' It is not necessary that it should be a legal or valid
one. It is sufficient if it be colorable."
For the reason given your office decision is hereby affirmed.
CONTEST AFFIDAVIT— ATTORXEY-NOTARY PUBLIC.
Talley r. Gass.
In thoee States or TerritoTies whose laws do not forbid an attorney to administer an
oath to a client; the necessary oath to a contest affidavit may be administered
by an officer or notary who is also the attorney of the contestant; bnt in States
where the local laws forbid such practice it will not be allowed by the Land
Department.
The case of Werden r. Schlecht, 20 L. D., 523, overmled, and section 13, instmctions
of December 15, 1885, 4 L. D., 297, modified.
ikereiary Francis to the Commissioner of the General Land Office^ Jan-
(I. H. L.) uary 18, 1897. \G. W. P.)
George I. Talley has appealed from the decision of your office of July
27, 1895, dismissing his contest against the homestead entry, No. 933,
of Addie E. Gass, of the SE. J of Sec. 16, T. 28, R. 11, Alva land dis-
trict, Oklahoma Territory.
The ground of said decision is that the affidavit of contest was made
before the contestant's attorney.
At the hearing the defendant moved to quash the proceedings, on
the ground that the affidavit of contest was not properly verified, it
being sworn to before the contestant's attorney. The register and
receiver overruled this motion, and the case was heard upon the testi-
mony offered. The local officers found for the defendant. The con-
testant appealed. Your office held that it was error in the local officers
not to dismiss the contest on said motion of the defendant, saying:
The affidavit was made before the contestant's attorney. The evidence was before
yoa that such was the case at the time it was filed, as the affidavit and power of
attorney were on one and the same sheet of paper, and it should not have been
received by you. No notice should have been issued thereon. The Department has
ruled that the affidavit of a party taken before his attorney as notary public, will
not be accepted by the Department,
And you cite the case of Werden r. Schlecht, 20 L. I)., 523, as autjiority
for your decision.
Upon further consideration of the question presented, the Depart-
ment is led to the conclusion that the doctrine announced in the case of
Werden r. Schlecht, cited by your office, is not sound, and the same
will not be followed.
In the case of William K. Sutley, 3 L. D., 248, it was held, after a
thorough discussion of the subject, that the Code of Dakota, fairly con-
strued, did not forbid an attorney to administer the necessary oath to
a contest affidavit, and that the contest affidavit, which was executed
J
46 DECISIONS BELATINO TO THE PUBLIC LANDS.
before the oonteetant's attorney, was not invalid, This decision was
followed in the case of Hopkins r, Daniels, 4 L. D., 126.
The laws of Oklahoma on the subject of affidavits and depositions are
the same as those of Dakota, cited in the case of William B. Sntley,
supra, and such laws not forbidding it the contest affidavit as made in
this case will be accepted.
The rule in such cases hereafter will be that in those States or Terri-
tories whose laws do not forbid an attorney to administer an oath to a
client, the necessary oath to a contest affidavit may be administered by
an officer or notary who is also the attorney for the contestant; but in
States where the local laws forbid such practice it will not be allowed.
Section 13 of the circular of instructions issued December 15, 1885 (4 L.
D., 297-9), is to that extent modified; and the case of Werden r.
Schlecht, so far as in conflict with these views, is overruled.
Your office having dismissed the contest without considering the case
on its merits, the record is returned for such consideration, and in view
of the delay caused by the proceedings already had you are requested to
act upon the case as early as practicable.
FooTE V. McMillan.
Motion for review of departmental decision of March 7, 1896, 22 L. D.,
280, denied by Secretary Francis, January 18, 1897.
COAL. T^AXr>— FINAr. PROOF— LIFE OF FILJXG.
Skoyen v. Habbis.
A coal land claimant who appears, on the last day of the life of his filing, at the local
office and within the business hours designated by official regulations, and is
prevented from submittiug his final proof and making payment at such time by
the receiver's office being closed contrary to said regulations, should not be
regarded as in default, where such proof and payment are tendered on the next
business day.
^Secretary Francis to the Commissioner of the General Land Office, Jan-
(I. H. L.) nary 18, 1897. (E. B., Jr.)
This is a contest under the coal land law — sections 2347 to 2352,
inclusive, of the Revised Statutes.
The record shows that John Harris filed his coal declaratory state-
ment No. 992, March 23, 1893, for the SE. J of Sec. 16, T. 21 N., R. 7 E.,
Seattle, Washington, land district, alleging that he came into posses-
sion thereof on the twentieth of the same month, and had located and
opened a valuable mine of coal and expended $100 in labor and improve-
ments thereon ; that on March 30, 1894, Peter O. Skoyen filed his coal
DECISIONS RELATING TO THE PUBLIC LANDS. 47
declaratory statement No. 1028, for the same land, alleging possession
on and since March 21, 1894, and that he had located and opened a
valuable mine of coal and expended $20.00 in labor and improvements
thereon; that on May 21, 1894, Harris applied to purchase the land,
and offered proof and tendered payment therefor; that on Jnly 7, 1894,
after notice of Harris' application, proof and tender, Skoyen filed a pro-
test against the same, on the ground that Harris' declaratory statement
had fully expired by limitatioD of law before he tendered proof and i)nymeDt for
said land,' more than fourteen months having int«rvene<l between the date of his
alleged poaaeAsion and the date of his said proof;
that a hearing was duly had in January following; that on April 2,
1895, the local oifice decided that although the evidence showed ^Hhat
Harris has expended about $2,000 in money and work upon this land
and has acted in apparently good faith," yet by his failure to apply to
enter and tender proof and payment therefor within one year and sixty
days from the commencement of his possession and improvements he
forfeited his right thereto '<as against an adverse claimant," and
rejected his application to purchase, and, in effect, recommended the
cancellation of his coal filing; that on appeal by Harris your office, on
July 2, 1895, decided that Skoyen had failed to show that he had
opened and improved a coal mine on the land, or that he was acting in
good faith, that he did not therefore have a valid adverse claim to the
land when Harris applied to purchase, that Harris, having otherwise
complied with the law, might enter the land after one year and sixty
days from the commencement of possession and improvements, in the
absence of any valid adverse claim, that Skoyen's filing should be can-
celed and Harris' final proof received, and he be allowed, upon i>ay-
ment, to make entry of the land ; and that a motion by Skoyen for
rehearing was denied by your office October 7, 1895.
An appeal by Skoyen brings the case before the Department, error
being assigned as follows:
I. Error to decide that the proof of contestee's good faith is ample and entirely
satisfactory.
II. Error to decide that contestant has failed to show that he was acting in good
faith.
III. Error to decide that contestee's possession must be regarded as having com-
menced upon March 20^ 1893, instead of aboat the middle of February, 1893, the time
he states in his testimony that he came into possession.
IV. Error to decide that Harris made tender of payment on May 21, 1894, or at any
other time ; it app^viring that tender was not made by him, and that he had no money
of his own or in his possession for such purpose.
V. Error to decide that on said 21st day of May, 1894, when such tender is alleged
to have been made, there was "uo valid adverse claim'' to the land appliedtfor
by him.
VI. Error to decide that said application of Harris to purchase said land to be
allowed.
Vn. Error to decide that the coal declaratory statement No. 1028 of protestant be
canceled.
48 DECISIONS RELATING TO THE PUBLIC LANDS.
VIII. Error to decide that it is immaterial what contestant has done in the way
of improvements upon said laud since the day when oontestee (Harris) tendered
proof and payment therefor.
IX. Error to refuse said petition for re-hearing.
X. Error to decide that said petition for re-hearing alleged no sufficient grounds
for a re-hearing.
XI. Error not to decide —
First : That said final proof and payment by Harris were not made in time.
Second : That the possession of said Harris was commenced in February, 1893, and
that proof and payment should have been tendered in April, 1894.
Third. That the declarator v statement No. 1028 of contestant is a valid adverse
claim to said land and that said coutestee had no right- thereto as against said
adverse claim.
Fourth : That the work done by the said Skoyen as a basis for said coal declara-
tory statement filing was sufficient and that he was entitled to his full time of one
year and sixty days after taking possession of said land in which to open and develop
the coal deposits thereon aud to show his good faith in the premises, and that the
amount of his improvements was not a material question in the hearing upon the
right of Harris to euter said laud, it being true that his application to enter was
made too late.
Fifth: That said Skoyen has since and within the life of said filing made such
improvements, aud that his good faith is thus demonstrated.
Sixth : The application of Harris to enter said land should be denied and his coal
declaratory statement No. 992 canceled, and that said land be awarded to Peter O.
Skoyen under his coal declaratory statement No. 1028 and the final proof and pay-
ment tendered thereon.
Upon the questiou of Harris' good faith the evidence abandantly
sustains the conclusions of your office and the local office. His pos-
session and improvements have been continuous during all the period
in controversy. He has opened and improved a valuable mine of coal,
and expended $2,000 in money and improvements to that end on the
land. At the hearing his good faith, except as alleged in the protest
and hereinbefore indicated, was openly admitted by the protestaiit.
Upon the contention of the appeal that Harris' "possession" com-
menced "about the middle of February, 1893," instead of March 20,
1893, it is sufficient to say that although the evidence shows that Har-
ris commenced prospecting for coal on the land and did some work
thereon and discovered coal during February, 1893, it does not show
that he had possession of the land or went upon it to take possession
as a claimant under the coal land law until, as alleged in his filing, on
March 20, 1893.
Under the coal land law, as contained In the sections of the Revised
Statutes above indicated, a claimant seeking a preference right to
purchase, and coming lawfully into possession of public coal land, is
entitled, upon continued C/Ompliance therewith in good faith, to hold
and possess the same as against any other party claiming under the
same law, for the period of one year and sixty days " after the date of
actual possession and commencement of improvements on the land"
(sections 2349 and 2350, Revised Statutes). This period, in the case of
Harris' filing, within which he might make entry of the land, expired
on Saturday, May 19, 1894.
DECISIONS EELATma TO THE PUBLIC LANDS. A9
Harris testifies that by reason of an attack of rbeamatism during
three days preceding the 19th, he was delayed in reaching the local
office, and did not, therefore, arrive there antil about three o'clock
P. M. of the 19th with his proof, and money to pay for the land, when
he found the office closed. It appears from the register's statement
that only the receiver's office was closed, that office closing regularly
at cue o'clock P. M. on Saturday to enable the receiver to make depos-
its of public money. The record, as already stated, shows that tender
of proof and payment was made on Monday, March 21, following.
There is no evidence to controvert the truth of Harris' testimony as
to his previous sickness, and his presence at the land office on Saturday^
May 10, 1894, with his proof and money to pay for the laud. The reg-
ister's statement corroborates Harris as to the receiver's office being
then closed. Under the law as expressed in official regulation govern-
ing his attendance, the receiver should have been there at the time
Harris arrived, and thence on until four o'clock P. M. (General Cir-
cular, p. 120.) The law gave Harris until that hour within which to
comply with its requirements. Standing ready to comply within the
time allowed, and being prevented from so doing only by the previous
closing, contrary to law, of the receiver's office, his right should not
thereby suffer any prejudice or impairment. Harris' tender of jv^oof
and payment should be regarded in contemplation of law as duly made
at the hour he alleges, and therefore within the specific statutory life
of his claim.
It is unnecessary in this view of the case to pass upon any other
question sought to be raised by the appeal.
The contest of Skoyen is dismissed, and your office decision of July
2, 1895, as herein modified, affirmed.
Harris will be allowed to duly complete his entry, subject, however,
to any valid adverse claim of the State of Washington under its grant
of school lands.
SETTLEMENT RIGHT— SUCCESSFUI- CO^NTESTANT— RELINQUISHMENT.
GouRLEY r. Countryman.
While as between two parties claiming the same tract, the settlement right of one
may not defeat the superior right of the other as a saccessfiil contestant, yet if
tmch. contestant thereafter enters the land, and relinquishes the entry, such
settlement right, if maintained, will defeat the subsequent entry of a third
party.
Secretary Francis to the Cammisaioner of the General Land Office, Jan-
(I. H. L.) uary 18, 1897. (C. W. P.)
This case involves the N. i of the NE. J of Sec. 28, T. 11 N., K. 3 W.,
Oklahoma land district, Oklahoma.
The record shows that on May 11, 1889, A. G. Blauvelt made home-
stead entry of the above described land; that on October 17, 1889
William Gonrley contested said entry, on the ground that the entry-
10671— VOL 24 4
50 DECISIONS RELATING TO THE PUBLIC LANDS.
nan had executed, for a valuable consideration, a relinquishment of
Lis entry, and had asserted afterwards no claim to the laud ; that on
September 30, 1890, Thomas W. Pence contested the entry of Blauvelt,
charging abandonment and the relinquishment of his entry, and that
the contest of Gourley was instituted when the relinquishment was in
liis possession, and was speculative and intended to prevent others
from securing any rights upon the land, until he could sell the relin-
<iuishment, or hold the land until such time as suited him to make
«ntry thereof; that on December 21, 1891, Gourley tiled the relinquish-
meuC of Blauvelt and made homestead entry of the said land, together
with the S. } of the said NE. ^. A hearing was had, the contest of
Pence was dismissed. On appeal, your office sustained the action of
the local officers. But upon a further appeal, the Department reversed
your office decision. A motion for review of this decision was denied
on December 24, 1894. See Pence v, Gourley, 18 L. D., 358; Id. on
review, 19 L. D., 588. Your office, on January 17, 1895, canceled
Gourley's entire entry. On February 14, 1895, Pence made homestead
entry for the N. i of the NE. ^ of said section 28, and relinquished the
same on July 26, 1895, and on the same day George W. Oountrymau
was allowed to make homestead entry of the said K. ^ of the NE. ^,
On October 15, 1895, Gourley filed an affidavit of contest against
Oountryman^s entry, alleging settlement dating from November, 1889,
and that he was a resident of the land at the date of Pence's relin-
•quishment and Countryman's entry. On February 10, 1896, Gourley
:filed an application for reinstatement of his homestead entry, alleging,
in addition to the allegations in his contest affidavit, that Countryman
knew of his settlement and residence when he made entry, and that
«aid entry was made with the intent to defraud the petitioner of bis
improvements.
Your office, by decision of May 14, 1896, held that it was error to
cancel Gourley's entire entry, and reinstated his entry as to the S. J of
the NE. J, improi)erly canceled, but denied his application for rein-
statement as to the N. ^ of said quarter t^^ection.
On June 6, 1896, Gourley filed a motion for review of your office
decision, and with said motion he filed an amendmentof his application
for reinstatement, in which it is represented by him, under oath, that
when he purchased the relinquishment of Blauvelt's entry he did so in
good faith, with no intent of defrauding any one; that he was first
awarded the laud by the register and receiver, and the Commissioner
of the General Land Office, and that he felt that he had been greatly
wronged and injured by the departmental decision reversing the action
of your office and the local officers and holding that his contest against
Blauvelt's entry was not in good faith ; that the entry made by Pence
was with the intent and design of speculation, and that he never
intended to submit final proof in support of said entry, and that he
18 informed and believes he (cau) establish by proof that there was a conspiracy
4>etween said Pence and said Countryman to hold said land by said entry so made by
DECISIONS RELATING TO THE PUBLIC LANDS. 51
eftch of tbem as aforesaid, for speculatiye pnrposes and for the purpose of availing
themselves of the benefit of the amount of money, which said affiant has put into
said tract involved; that each of said parties has known all the time of the claim of
said affiant by virtne of having observed him in open, notorious, visible and adverse
possession of said tract, exclusively occupying and cultivating the same.
Upou this motion for review, your office on July 28, 1896, held as
follows:
Gonrley's contention that he was unjustly dealt with by the Department can not
be considered by this office. The action of this office in such cases is subject to
review by the Department, and this office is bound by the final judgment of the
Department. Nor do I see any reason why office decision of May 14, 1896, should be
disturbed on Gonrley's charge (that he) was a settler on the land. The Department
held that Gourley had shown bad faith in his dealing with the government and
declared that Gourley had acquired no right by his settlement and residence.
It is true that Pence who secured the cancellation of Gourley^s entry has relin-
quished his entry, but it is also true, as held in office decision of May 14, 1896, that
before Gourley asked for a reinstatement of his entry. Countryman's rights acquired
by virtue of his entry had attached.
It does not appear to me that the charge in reference to Pence's bad faith, or fraud-
ulent design in prosecuting his contest against Gourley's entry is a material one.
Pence^s entry is not now the subject of attack. Whatever right was accorded him
by virtue of his contest, has been waived and relinquished to the government.
The fact that Countryman made entry for the land with the knowledge that Gour-
ley had improvements on it, and had asserted ownership thereto, does not invalidate
his entry. Gonrley's entry had been canceled as the result of a contest that had been
prosecuted to a final judgment before the Department, and in that judgment it was
held by the Department that Gourley acquired no right to the land by reason of his
improvements and ''continuous residence." The land, after Pence's entry was oan-
eeled by relinquishment, became a part of the public domain, subject to appropria-
tion by entry, and it was not unlawful for Countryman to enter the same even
though he knew of the improvements made by Goorley and his residence on the
land;
and denied the motion for review.
Gourley appeals to the Department.
While I concur in that part of your office decision which holds that
the decisions of the Department of April 5, 1894, and December 24,
1894, are final, as to all matters that preceded the entry of Pence by
virtae of his preference right, as contestant, and think that Oourley's
application for reinstatement of his entry was properly denied, I can
not agree with you that Gourley could acquire no rights by virtue of
settlement and continuous residence upon the land, after the cancella-
tion of Pence's entry.
In the case of Pence v, Gourley the Department did not decide that
Gk>arley could not acquire a right to the land as against a third party
by bis settlement and residence upon the land, but simply as against
the contestant Pence. When Pence relinquished his entry, the land
was restored to the public domain, and if Gourley was then residing on
the land, his settlement right would attach eo instanti upon the filing
of Pence's relinquishment, and could not be defeated by Country-
man's entry. (Rickers v. Fisher, 19 L. D., 421.) I therefore think a
hearing' should be had on Gourley's affidavit of contest, as amended by
his affidavit filed June 0, 1896, and direct that a hearing be had for the
52 DECISIONS RELATING TO THE PUBLIC LANDS.
purpose of deterniiniDg the rights of the parties, which will be eonfiued
to the question of Gourley's residence nppn the land at the time of
Pence's relinquishment and his allegation that there was a conspiracy
between Pence and Countryman to hold the land by the entries made
by each of them, respectively, for speculative purposes and for the
purpose of availing themselves of the benefit of his improvements upon
the land, both parties knowing him to be in possession of the land,
actively occupying and cultivating it.
Your office decisions of May 14, 1806, and July 28, 1890, are modified
accordingly.
ORDER or CAXCEt-LATION-RESFDENCE.
United States v. Montoya et al.
The cancellation of an entry without notice to the entry man is void for wantof jnria-
diction.
A homestead entry will not be defeated by the fact that the entryman, through mis-
take, builds his house outside the lines of his land, where in good faith he resides
in the house so located.
Secretary Francis to the Commissioner of the General Land Office, Jan-
(I. H. L.) uary 30, 1897, (E. B., Jr.)
This is an appeal by Juan de los Reyes Martinez from your office
decision of November 9, 1895, in the case of the United States v. Deci-
derio Montoya and others by which the final homestead entry, No. GSoy
made by Montoya September 18, 1892, for the W. J of the NE. J
and the E. J of the NW. i of section 20, T. 24 N., R. 32 E., now in
the Clayton, formerly in the Santa Fe, New Mexico, land district,
was reinstated and the pre-emption declaratory statement No. 84,
filed May 28, 1890, by said Martinez, for the same tract, was held for
cancellation.
It appears that said final entry was canceled by your office February
3, 1886| without notice to the entryman, or his transferees, on the
ground that, as reported by a special agent, <' Montoya never lived on
the land embraced in his entry ,^' and '^ the county records show that
Montoya conveyed the land to S. W. Dorsey October 31, 1882, who con-
veyed the same to the Palo Blanco Cattle Co. March 7, 1884 ;" that at
the instance of said Dorsey, and after a report September 3, 1892, by
another special agent, showing due residence, improvements and com-
pliance otherwise with the homestead law by Montoya, and recom-
mending the reinstatement of the entry, your office, on September 29th
following, ordered a hearing "in order to determine the rights of the
parties to the land involved j " that the hearing was duly held, at which
the government, Martinez and the transferees were duly represented,
Martinez having filed, on the second day of tbo hearing, an affidavit
charging failure to reside on the land on the part of Montoya; and
DECISIONS RELATING TO THE PUBLIC LANDS. 55
that "from the testimony presented" the local oflBce foand briefly,
*'that the land embraced in said homestead entry has not been resided
upon by Deciderio Montoya as required by law," and recommended
that his entry "should be canceled."
The appeal is largely made up of assignments of error relative to the
consideration by your oflice of "the report of the special agent" and
to the status giveu Martinez in the case. It is unnecessary to consider
them at any length. Martinez appears to have been accorded all the
rights of a contestant at the hearing, among which were those of cross-
examining witnesses and objecting to testimony, and "the report of the
special agent" (which evidently has reference to the second such report
mentioned above) was only preliminary to the hearing, and is only
referred to in that connection in said decision. The remaining assign-
ments of error are as follows:
Fifth. In faiUng to bold that the decision of the local officers was binding.
Sixth. In failing to hold that the cancellation of the homestead entry in October,
1885, and all the accompanying proceedings were, at least, j^^'^^^ faciCf valid; and
mnst stand as the valid act of a government official until the illegality of the
proceedings be shown.
Seventh. In reinstating the homestead entry.
Eighth. In holding for cancellation the D. S. filing, and
Ninth. Because of other errors both of law and fact appearing upon the face of
the record.
The cancellation of this entry without notice to the entryman was
void for want of jurisdiction (Drew v> Comisky, 22 L. D., 174, and Cas-
telle V, Bonnie, 23 L. D., 162) : so that the cancellation was a nullity,
and in law the entry was intact as though the order of cancellation had
not been made when Martinez's declaratory statement was filed. Such
filing therefore, equitable title having vested in Montoya, gave Martinez
no right whatever to the land.
The testimony taken at the hearing shows that, of the five years
immediately preceding his final entry, Montoya had resided upon the
land in a log house thereon until about 1881, when he moved into a
stone house just built by him about two hundred yards south of the
log house, and which (stone house), as was afterwards ascertained,
had been located, apparently by reason of mistake as to the south
boundary line of the tract above described, upon the NW. J of the
SE. J of the said section. In this house he lived until after he made
his final entry for the said tract. It does not appear that he was aware^
at any time prior to final entry, that the stone house was not actually
on his own land. It is well settled that residence in good faith in a
house built by an entryman by mistake outside the lines of his land
will not defeat his entry (Talkington's Heirs v. Hempfling, 2 L. D., 46;
and Smith v. Brearly, 9 L. D., 175).
The Department would doubtless be justified, in view of the evi-
dence and all the circumstances of this case, in holding that this entry
is confirmed by the seventh section of the act of March 3, 1891 (26
54 DECISIONS RELATING TO THE PUBLIC LANDS.
Stats., 1095), on the ground that there was no claim adverse thereto
prior to final entry, and that after such entry and prior to March 1,
1888, it had been sold to a bona fide purchaser for a valuable consider-
ation. No question has been raised at any time by appellant as to the
bona fides of the alleged sales. In view, however, of the facts that the
evidence established the good faith of the entryman as to residence
and shows compliance otherwise with the homestead law, and that no
record evidence of these sales appears among the papers in the case,
only parol evidence appearing on that point, the Department does not
deem it necessary to pass upon the question of confirmation of the
entry under said section. .
Your said decision is affirmed. Montoya's entry will be reinstated^
and passed to patent. Martinez's filing will be canceled.
SCHOOL LAXI>— i:5rDEMXrrY SELECTION— SURVEY.
State of California r. Wright.
The date of the survey of a township is not fixed by the date of the work in the fields
but by the approval of the plat.
An alleged loss in an nnsurveyed township will not authorize a school indemnity
selection.
Secretary Francis to the Commissioner of the General Land Office^ Jan-
(1. H. L.) uary 30^ 1897. (0. J. W.)
On July 8, 1895, M. J. Wright, as locating agent for the State of
Caliibruia, made application for, and selected, the E. ^ of the XE. ^ of
Sec. 20, T. II S., H. 9 E., Mount Diablo meridian, as indemnity for deficit
in school land, viz : the NW. J of the NW. J of Sec. 36, T. 9 K ., R. 22 W.,
forty acres; the SW. J of the NW. J of Sec. 36, T. 9 N., R. 22 W., 38.78
acres, and Sec. 36, T. 1 N., R. 16 E., 1.22 acres — eighty acres.
On December 21, 1895, by letter ("K"), your office held said selection
for cancellation as invalid, because the x>lat of township 9 north, range
22 west, S. B. M., on file in your office, showed that the only portion of
the township surveyed was section 24.
On March 24, 1896, by letter ("K"), your office acknowledged receipt
of evidence showing service of notice of letter "K" of December 21^
1895, upon the surveyor general of California, and his failure to appeal
from the decision holding selection for canceUation; whereupon the
cancellation was ordered. The local officers were directed to note the
cancellation on the records of their office and to advise the surveyor
general. They were also directed to give notice to W. W. Wright of
this action, and to advise him that his application to have a portion of
section 20, township 11 south, range 9 east, M. D. M., reserved and held
for him, for the purpose of a reservoir and dam which he wished to con-
struct, would be made ttie subject of a separate letter.
DECISIONS EELATING TO THE PUBLIC LANDS 55
On June 12, 1896, by letter "G" of that date, referring to office let-
ters "K" of December 21, 1895, and March 24, 1896, in wliich school
indemnity selection R. & 11. No. 216 (State No. 2934) was canceled, your
office instructed the local officers, as follows :
I now advise yoa that the action abo ve set ont is revoked because it wan foanded
upon a misapprehension of facts and c onsequently was erroneous. The said applica-
tion is therefore reinstated. Yon will note such reinstatement upon the records of
yonr office, referring to this letter, and notify the State surveyor general of Califor-
nia accordingly. And give notice of this action also to W. W. Wright, who filed ia
yonr office a protest against the said selection on November 2, 1895. The misappre*
hension above mentioned was caused or at least contributed to by the 17. S. surveyor
general for California, who furnished Mr. Wright with a certificate to the eft'ect that
the only surveyed land in the township was section 24, while, as a matter of fact, the
whole township was surveyed, and a portion of school section 36 therein returned
aa mineral in character.
After the cancellation of the selection and before its reinstatement^
the surveyor general of the State of California made application for
its reinstatement, and on April 21, 1896, yonr office, in passing upon
the same, said in reference to the cancellation formerly ordered: ^^A»
I can see no reason for doubting the propriety of this action, I must
decline to revoke it, and to reinstate the selection upon the records.'^
Afterwards, in the letter of June 12, 1896, your office, of its own motion^
as for the correction of a mistake in fact, reinstated the State's canceled
application.
On November 2, 1895, W. W. Wright filed application to have th&
E. i of the NE. J of Sec. 20 reserved for his use for reservoir and rights
of way, under the act of March 3, 1891 (26 Stat., 1095), and appended
to said application is the certificate of W. S. Green, U. S. surveyor gen-
eral for California, in which it is stated that the plat of township 9 north^
range 22 west, S. B. M., on file in his office, approved by Theo. Wagner^
U. S. surveyor general, December 12, 1879, shows the only portion of
said township surveyed to be section 24, and that a copy of said plat
was duly filed in the United States land office at Los Angeles, January
19, 1880.
On November 16, 1896, your office forwarded a map and papers filed
in the Stockton, California, land office, by W. W. Wright, in whicb
yoa recommend that the map be considered in connection with this
case, and be approved subject to all valid subsisting rights, with or
without exception, as to the E. ^ of the N E. ^ of Sec. 20, so as to har-
monize with the disposition to be made of said laml.
W. W. Wright has appealed from your office decision of June 12^
1896, reinstating the said school indemnity selection, which was can-
celed March 24, 1896.
The errors specified are:
1. In failing to adhere to and sustain the decision of December 21^
1895, which held that there was no valid basis for said indemnity selec-
tion at the date when it was filed, and held the same for cancellation.
56 DECISIONS RELATING TO THE PUBLIC LANDS.
2. Due uotice of said decision of December 21, 1895, having been
given to the proper officer of the State of California, and no appeal
having been taken from said decision, the same became final, and said
indemnity selection was duly canceled by office letter "K" March 24,
1896, and it should not be disturbed.
3. After said final action of March 24, 1896, had been taken, an appli-
cation to reinstate the selection was made by the surveyor general for
the State of California, which, on April 21, 1896, was refused, and
should have been final.
4. Error in undertaking to reinstate said selection upon the ex-parte
application of the attorney here for the State of California, improi>erly
made, and filed without any notice thereof to applicant Wright.
5. Error not to deny action on such application until due notice was
given to Wright.
6. It was error, after having, on June 1, 1896, recognized Wright as
an applicant for reservoir rights on the land, to reinstate the selection
without considering his intervening rights.
7. In not holding that said alleged basis, T. 9 K., R. 22 W., was not
surveyed until the official township plat and field notes thereof had
been duly approved by the United States surveyor general on January
8, 1896.
The last proposition announced, if found to be true, would control
the case, and render unnecessary the consideration of the minor grounds
of error.
Your office allowed the State's selection in the first instance on an
apparent state of facts, which entitled it to such selection. Afterwards,
your office canceled the selection, on the ground that the facts were not
as alleged, and that no proper basis for the selection exist-ed; subse-
quently, your office reached the conclusion that a mistake was made in
the facts, which demanded the reinstatement of said canceled selection,
and thereupon ordered its reinstatement.
In office letter "K" of December 21, 1895, it is stated that the plat
of township 9 north, range 22 west, S. B. M., on file in your office, shows
the only jwrtion of the township surveyed to be section 24. This was
the reason for holding the application for cancellation. In your office
letter <'G" of June 12, 1896, it is stated: '^I now advise you that the
action above set out is revoked, because it was founded upon a misap-
prehension of facts, and consequently was erroneous." The application
was for this reason reinstated.
The township map referred to has been examined. The surveys
included in it run through a series of several years, the actual surveys in
the field closing January 2, 1894, thus antedating the application of the
State to make the selection in question. The plat, however, was not
approved by the surveyor general of the United States for California
and filed in office until January 8, 1896, which is after the filing of
Wright's application to have the land reserved for reservoir purposes.
DECISIONS RELATING TO THE PUBLIC LANDS. 57
this application having been filed November 2, 1895. The fact to which
Tour office refers, as having been misapprehended, is not i)urely a ques-
tion of fact, but one of mixed law and fact.
The actual survey of the township in question had been made at the
time the State filed application to make indemnity selection, but the
survey had not been, approved and the map filed, so the question
remains: Was the township surveyed at the time the State's applica-
tion was filed. The basis of the selection is the mineral character of a
part of section 36 of said township. In the case of Pereira r. Jacks
(15 L- D., 273), it is held, that if land is shown to be mineral in character
by return of the surveyor-general at completion of the survey, it is
excepted from the school grant to California. In the case of Niven v.
State of California (6 L. D., 439), it is held that the grant to the State
takes effect as of the date of the survey.
In the cases cited it is clearly indicated that the date of a survey is
fixed not by the date of the work in the field, but by the approval
and filing of the map. In the case of Southern Pacific Bailroad Com-
pany r. Burlingame (5 L. D., 416), it is held that the date of a survey is
determined by the date of its approval. This ruling is not only well
founded, but has been very uniformly followed by the Department,
which is in accord with the ruling of the courts.
The supreme court of California, in the case of Michael Finney v.
James N. Berger (50 Cal., 249), say:
The statates of this State do not cod template a sale of the sixteeDth and thirty-
sixth sections antil the title to the same has vested in the State, and the title to said
sections does not vest in the State nntil the plat of the snrvey is approved by the
United States surveyor general.
In the case of Medley r. Robertson et al, (55 Cal., 396), the court hold :
The title to a particular sixteenth or thirty-sixth section does not vest in the State
before the plat of the snrvey of the township has been approved by the United
States surveyor general ; and an application to purchase such land made before the
approval of the snrvey is unauthorized and void.
The application of the State, as was first held by your office, showed
no proper basis for the selection applied for, for the reason that the
township in which the alleged deficit existed was unsurveyed, and such
application was unauthorized and void, and the selection under it was
properly canceled. It would seem to follow that its reinstatement was
erroneous.
Your office decision of June 12, 1896, is accordingly reversed, and
selection E. & E. Xo. 216, State Ko. 2934, is canceled; the map filed by
W. W. Wright is in accordance with your recommendation approved.
58 DECISIONS RELATING TO THE PUBLIC LANDS.
CONFmMATION— SOLDrERS' ^VDDITIONAL HOXESTEAI).
David Walters.
The confirmation of a soldier's additional homestead entry nnder section 7, act of
March 3, 1891, is not defeated by the failure of the register tx> issue the formal
final certificate, where it appears from the record that the soldier complied
with all the requirements of the law and regulations thereunder.
The departmental decision herein of August 3, 1892, 15 L. D., 136 revoked.
Secretary Francis to the Commiiss loner of the General Land Office^ Jan-
(I. H. L.) uary 30, 1897. (W. A. E.)
The Department is in receipt of your office letter of September 24,
1896, asking for instructions relative to the soldier's additional home-
stead entry of David Walters, made July 1, 1875, for the N. J of the
STB. i of Sec. 29, T. 28 N., R. C E., Susanville, California, land districts
It appears that your office suspended said entry, for reasons not
necessary to set out here, and called for additional affidavits; that the
Sierra Lumber Company, claiming to be the transferee of Walters,
applied to have said entry confirmed under the act of March 3, 1891, or
to purchase the land under section 2 of the act of June 15, 1880; that
your office denied this application, and held the entry for cancellation,
the reason assigned for the ruling that said entry had not become con-
firmed under the act of March 3, 1891, being that no final certificate
had issued on said entry; that on appeal to the Department your office
decision was affirmed, in so far as it refused to hold said entry con-
firmed, but the company was awarded the right to purchase the land
under the act of June 15, 1880 (see 15 L. D., 136).
The company having failed to perfect the entry as authorized by said
departmental decision, instructions are now asked as to what action
shall be taken in regard to said entry, in view of the recent decision of
the Department in the case of the Sierra Lumber Company (22 L. D.,
690), wherein it was held that a soldier's additional homestead entry,
similar to this, and upon which, as stated by your office, no ** final cer-
tificate" had issued, was confirmed under the seventh section of the act
of March 3, 1891.
The original holding of the Department in this case, that Walters's
said additional entry was not confirmed under the act of March 3, 1H91,
was based upon the ruling in the case of the United States v. Bush (13
L. D., 529). The Bush case, however, involved a cash entry made nnder
the act of May 28, 1880 (21 Stat., 143), for Osage Indian lands. This
act provided that actual settlers on tlie Osage Indian trust and dimin-
ished reserve lands in Kansas might, within a certain fixed time, make
l^roof of their claims, and pay one fourth of the purchase price, the
balance of the purchase price to be paid in three equal annual install-
ments thereafter. It was held in the case cited that an entry of Osage
DECISIONS RELATING TO THE PUBLIC LANDS, 59
land is not confirmed under the proviso to section 7 of the act of March
3, 1801, until two years have elapsed from date 6f final payment, as
** final certificate " is not issued until all the payments have been made.
Afterwards, in the case of William R. Sisemore (18 L. D., 4-11), the
Bash case was overruled, and it was held that when a claimant for
Osage land under the act of May 28, 1880, submits proof of his qualifi-
cations to enter, shows due compliance with law^ and makes his first
payment for the laud, his right thereto is a vested interest, subject to
the lien of the government for the unpaid purchase money; and the
receipt then issued to him is a <^ final receipt" that entitles a subsequent
purchaser of the land to the benefit of the confirmatory provisions of
section 7, act of March 3, 1891, if otherwise within the terms of said
section.
Clearly, these rulings in regard to entries for Osage lan<ls have no
direct bearing upon the question of confirmation of soldiers^ additional
homestead entries. There are no annual payments, no final proof, to
be made on the latter. All that is required of the soldier is that at the
time he makes his application for an additional entry, he shall file, in
addition to the regular homestead affidavits, special affidavits showing
his identity as the soldier he represents himself to be, his military serv-
ice, the description of his original entry, his compliance with law in
regard to said original entry, and his unimpaired right to make addi-
tional entry. He then pays the fees and commissions prescribed by
law, and the receiver's receipt and the register's certificate are issu(»d.
<^ Final certificate" should also be issued at the same time (General
Circular of 1895, page 29).
The difi^erence between an Osage entry and a soldier's additional
entry is thus very apparent, and the question as to what is sufficient to
bring the latter within the confirmatory provisions of the act of March
3, 1891, is entirely distinct from the question involved in the Bush ai d
Sisemore cases.
The seventh section of the act of March 3, 1891, provides that:
All entries made nnder the pre-emption, homestead, desert land, or timber culture
laws, In which final proof and payment may have been made and certificates issuc:^
and to which there is no adverse claim originating prior to final entry, and which
have been sold or incumbered prior to the Hrst day of March, eighteen hundred and
eighty, and after final entry to bona fide purchasers, or incumbrancers, for a valu-
able consideration, shall, unless upon an investigation of a government agent, fraud
on the part of the purchaser has been found, be confirmed and patented.
As said above, no final proof is required on a soldier's additional
homestead entry, and the soldier is supposed to do, at the time of making
entry, all that the law requires of him in the matter of fih'ng the proper
affidavits and paying the prescribed fees and commissions.
When the record shows, as it does in the present case and the Sierra
Lumber Company case, that the soklier has complied with all the
requirements, will the failure of the register to issue formal final certifi-
cate defeat confirmation under the act of March 3, 1891 ? It was held
60 DECISIONS EELATING TO THE PUBLIC LANDS.
in the Sierra Lumber Company case that it would not, and this ruling
seems to be in accordance with law and equity.
It is a well established rule of the Department that rights of parties
are not impaired through the negligence of the local officers.
As the present case (which has not yet been closed) is identical in all
essential particulars with the Sierra Lumber Company case, and as the
former holding of the Department that Walters's said additional entry
was not confirmed under the act of March 3, 1891, was erroneously
based upon the ruling in the Bush case, the former action of the Depart-
ment herein is revoked and set aside, and the entry will be passed to
patent.
It is not intended by this ruling to change the procedure heretofore
followed in regard to soldiers' additional homestead entries. In other
words, you will still require the receiver to issue " final receipt," and
the register to issue "final certificate," in accordance with the circular
instructions. This ruling merely protects the entrjrman against the
consequences of neglect on the part of the local officers.
HOMESTEAD - PRE-EMPTIOX— ALIJ^NAGE.
BtJTLEB V. Davis.
A pre-emption filing, or application to make homestead entry, made by an alien prior
to declaration of intention to become a citizen, confers no right either under the
pre-emption or bomestead law, and a settler occupying snch status is without
protection as against an intervening adverse claim of record.
Secretary Francis to the Commissioner of the Oeneral Land Office^ Jan-
(I. H. L.) uary 30, 18'J7. (A. B.)
On June 17, 1886, James J. Butler filed a pre-emption declaratory
statement of his Intention to purchase the W. J of the SW. J, Sec. 28,
and the S. ^ of the SE. i, Sec. 29, T. 4 N., R. 24 W., S. B. M., Los Angeles,
Califoruia. On December 11, 1891, Butler applied to make homestead
entry of the same land; his application was rejected because he failed
to show that he was a citizen, or had declared his intention to become
such. On February 12, 1892, Butler declared his intention to become a
citizen, but did not make new application to enter the land, nor ofler to
make proof on his preemption filing.
On February 9, 1894, Silas R. Davis made homestead entry for the
land.
On February 17, 1894, Batter's naturalization being completed, he
applied to make homestead entry of the land, and his application was
rejected, because covered by Davis's entry.
On March 4, 1894, Butler filed a contest against Davis's entry, alleg*
ing that Davis had full knowledge of Butler's residence and improve-
ments when he made his entry.
DECISIONS RELATING TO THE PUBLIC LANDS. 61
After a hearing the local office recommeuded that the entry of Davis
be canceled.
On appeal, your office, on August 21, 1895, held that tlie declaration
of intention made by Butler to become a citizen
eoald not relate back to the filing of his pre-emption declaratory statement, and thas
benejt him; and his settlement and declaratory statement could not become opera-
tive fkt>m its date, because the pre-emption law had been repealed prior thereto.
While it is true that defendant knew of the residence, improvement and claim of
plaintiff at the time he made his entry, yet the plaintiflTs failure to properly assert
his claim in time is in no manner due to any act of the defendant.
Your office then decreed that the contest of Butler be dismissed and
the entry held intact.
From this Butler has appealed to the Department.
^o argument accompanies the appeal, and the appellant does not
show specifically wherein your holding was contrary to law.
The case has, however, been carefully considered. While the loss of
his home is a misfortune to the appellant, this Department is without
authority under the law to protect him in the face of the intervening
adverse claim of record, which claim was initiated in accordance with
law. The homestead entry of Davis was made at a time when the land
was subject to entry.
Butler was not a citizen and had not declared his intention to become
a citizen at the time of making his pre-emption filing in 1886, or when
be first applied to make homestead entry in 1891.
Said filing and application were therefore without any force or valid-
ity whatever and he could acquire no right thereunder. Before he
applied as a qualified claimant to make homestead entry of the tract it
had been entered by Davis, whose entry is protected by the law, pro-
vided he complies with its requirements in the matter of settlement,
residence and cultivation.
Tour office decision must be and it is therefore affirmed.
SECOND CONTEST OKLAHOMA LAN1>S.
Glabk V. Benfbo BT AL.
In a contest between applicants for land in Oklahoma, involving priority of settle-
ment; the question of ''soonerism'' is necessarily raised as to each party thereto,
whether formally charged or not, and where, in such a contest, evidence is sub-
mitted on said question, and a decision rendered thereon, a second contest should
not be allowed on that question.
Secretary Francis to the Commissioner of the General Land Office^ Jan-
(I. H. L.) uary 30^ 1897. (J. L. McO.)
On May 25j 1889, William T. Renfro made homestead entry for lots
6, 8, 9, and 10, of Sec. 31, T. 12 N., R. 2 W., Oklahoma City land dis-
trict, O. T.
62 DECISIONS RELATING TO THE PUBLIC LANDS.
On June 14, 1889^ Daniel Page, Jr., initiated contest against Renfro^s
entry, alleging prior settlement
The local officers found that Benfro was tlie prior settler. Your
office, on January 23, 1892, sustained the local officers, and dismissed
the contest.
Ten days later— to wit, on February 2, 1892— Will H. Clark filed an
application to contest Eenfro's entry. Ko action was taken thereon
except to note the date of filiug.
On April 3, 1893, Clark filed an amended affidavit, in which he
charged upon information and belief, that Page's claim and contest
were fraudulent, illegal and void, for the reason that he went into the
territory during the prohibited period. His charges were corroborated
merely upon information and belief. This amended complaint was not
acted upon by the local office.
Page in due time api>ealed from your office decision of January 23,
1892; and on December 5, 1894, the Department reversed said decision,
held that Page had a prior adverse claim, and directed that Beufro's
entry should he canceled upon the completion of entry by Page.
Benfro filed a motion for review of said departmental decision ; but
said motion was denied, and the decision of December 5, 1894, re-affirmed
on September 12, 1895 (314 L. and E., 314).
On April 10, 1896, Clark renewed his charges against Page, in a
"supplemental and amended affidavit of contest," in which he alleged
that Page's homestead entry was illegal, for the reason that at the time
it was allowed he (Clark) had a contest pending, which charged that
Page had occupied a portion of the land described in the President's
proclamation of March 23, 1889, during the prohibited i>eriod; therefore
Clark asked a hearing.
Your office on August 19, 1896, denied a hearing, holding:
Inasmach as Renfro's entry has been canceled, Clark's application to contest the
same is hereby dismissed.
The matter of Page's entering upon the territory during the prohibited period has
been adjudicated; therefore Clark's application to contest Page's entry is dismissed.
The above language has reference to the fact that, on the trial of the
case of Page r. Eenlro, Page, on cross-examination by counsel for Ben-
fro, acknowledged that he passed through the territory in the night,
on a railroad train, two or three days (or nights) before the land was
opened to settlement.
Clark has appealed from said decision on the following grounds :
First. The Honorable Commissioner erred in holding and finding that the question
of defendant Page's qualifications was res judicata^ for the reason that the qualifica>
tions of Page as charged in this affidavit of contest were never adjudicated except
upon the statements of the said Page, no disqualification ever having been charged
against him or evidence introduced against him in the trial of the case of Page v.
Ren fro, the sole issue in that case l>eing prior settlement.
Second. The Honorable Commissioner erred in holding and finding that the
decision of the government or any officer thereof upon an ex parte showing is an
DECISIONS RELATING TO THE PUBLIC LANDS. 63
a4ju^<^^i<^i^ bindiug upon claimants not parties to that suit, uuless the charge of
disqaalification was formerly made by way of contest^ and evidence introduced
thefetmder.
The departmental decision of September 12, 1895 (on review),
explained how the question of Page's premature entry into the Terri-
tory arose:
A motion (for review) has been filed on behalf of Renfro, the only ground of
error in which that was not considered in the previons decision is the Grst, namely :
"in not considering the testimony of the contestant, Daniel Page, Jr. (see pag6 37
of the record, question 2), in that contestant admits that he crossed the corner of
Oklahoma Territory in travelling from Purcell to the Pottawatomie country, April
18,1889."
A farther examination has been maile of the testimony upon this point, and it is
found, as alleged, that Page admits that, on April 18, 1889, he crossed from the
Chickasaw country at Purcell, passing through Oklahoma Territory 1o the Potta-
watomie country. The distance across the Oklahoma Territory at this point to the
Pottawatomie country is about five miles. After reaching the Pottawatomie country
he apx>ears to have followed the Pottawatomie line, travelling north until about
opposite the land in question, being a distance of about thirty-iivo miles. It was
from this point in the Pottawatomie country that he made his run to the land in
question.
I am of the opinion that the fact of his having crossed the Territory from Purcell
to the Pottawatomie country after which he traveled about thirty*iive miles north
within the Pottawatomie country to the point from which he made his run on April
22, did not disqualify him. He certainly gained no advantage by reason of knowl-
edge of the country acquired in crossing f^om Purcell to the Pottawatomie country ;
and while he may be within the strict letter of the law, having entered the country
after the President's proclamation and prior to the day set for the opening, yet under
the pecnllar circumstances, I do not think he transgressed the spirit of the law, and
ahoald not be held to be disqualified thereby.
It will be seen that the question of Page's disqualification upon the
allegation of premature entry has been adjudicated; but the applicant
herein contends that such adjudication is not ^'binding upon claimants
not parties to that suit, unless the charge of disqualification was
formally mude by way of contest."
The case (between Page and Renfro) arose upon Page's allegation of
priority of settlement. Before either of them could be permitted to
make entry, he must take the following oath (see General Circular,
page 239) :
I, , of , applying to enter a homestead, do solemnly swear that
I did not enter upon and occupy any portion of the lands described and declared
open to entry in the President's proclamation dated March 23, 1889, prior to 12
o'clock, noon, of March 22, 1889.
When the hesuring was ordered to determine whether Page or Renfro
was the prior settler, the question as to whether either of them could
take that oath (without which he could not be a legal settler) was
necessarily involved — ^whether " formally " raised or not. It was raised ;
testimony l:>earing upon that point was taken ; and the question has
been adjudicated by the Department. The case at bar, in my opinion,
64 DECISIONS RELATING TO THE PUBLIC LANDS.
comes within the rule that an issue once tried and determined wiU not
be made the i8sue of a second contest (Gurtin et al. v. Morton, 22 L. D.,
91). And this role is applicable to contestants, claiming a prior right
to lands, as was held in the case of McEvers r. Johnson, 23 L. D., 472.
The decision of your office denying a hearing is affirmed.
SMfTH ET AL. P. TAYLOE,
Motion for review of departmental decision of November 12, 1896,
23 L. D., 440, denied by Secretary Francis, January 30, 1897.
RAILROAD L.ANI>»-R1SIMBURSI:M£KT~ACT OF MARCH 3, 1887.
Joseph Pretzel.
The right to reimbarsement under the act of March 3, 1887^ cannot be recognized if
the title conveyed by the government is paramount to the claim of the railroad
company.
Secretary Francis to tlie Commissioner of the General Land Office^ Jan-
(L H. L.) uary 30^ 1897. (P. J. C.)
This is an application for reimbursement under the act of March 3^
1887, 24 Stat., 550 (5 L. D., 627), made by Joseph Pretzel. The gov-
ernment issued its patent to him, August 20, 1881, for the E. ^ of the
NW. J, Sec. 27, Tp. 3 N., E. 1 B., 6th P. M., Beatrice, Nebraska.
He alleges that the tract was embraced in the grant to the State of
Kansas for the use of the St. Joseph and Denver City Kailroad Com-
pany, by act of July 23, 1866 (14 Stat, 210); that the Kansas and
Nebraska Railway Company of Kansas, the transferee of the grant, by
its trustees, on November 15, 1881, conveyed the tract to one W. Prin-
gle Mitchell ; that, in order to remove the cloud from his title, he did,
on June 7, 1883, pay to Mitchell, <^who claimed prior and paramount
title to said land" by virtue of his deed aforesaid, the sum of eighty
dollars, and received a quitclaim deed from Mitchell for the land;
<*that he has not been sued and subjected to any judgment, but that
he paid the sum demanded of him," and believes he ought to be reim-
burseil under said act of March 3, 1887.
It appears that your office, by letter of May 16, 1895, addressed to
an attorney in Nebraska, in relation to <^the claims of Franz Bothe-
mier and Joseph Pretzel for reimbursement," stated,
that the title held by said parties from the railroad company is paramonot to the
title given by the goremment, as the land had passed to the railroad company prior
to the date of the patents issned to Rothemier and Pretzel.
Your office required some additional evidence to show no transfer or
incumbrance of their title under government patents. This additional
evidence was also required by letter of July 25, to the Nebraska attor*
ney, also of August 22, 1895, to local attorneys.
DECISIONS RELATING TO THE PUBLIC LANDS. 65
By letter of December 19, 1895, in passiDg upon the Pretzel claim, it
was said :
I have to inform you that upon a re-investigation of the evidence and facts in the
case, I fail to find that there has ever been a similar case presented and acted upon
by this office, in which a decree of court was rendered on account of priority of the
railroad grant.
The records of this office show that on March 7, 1870, Gerhard Busch made home-
stead entry No. 3914, for the E. i of NW. i and NW. i of NW. i. Sec. 27, Tp. 3 N.,
R. 1 E., canceled for abandonment April 5, 1872.
The rights of the St. Joe and Denver City Railroad Company did not attach until
March 28, 1870, and as this land was segregated by virtue of prior homestead entry
No. 3914, it was excepted from the grant to said railroad company.
On April 22, 1872, Joseph Pretzel made homestead entry No. 6509 for the E. ^ of
NAV. i. Sec. 27, Tp. 3 N., R. 1 £., and at that date the railroad company had not
selected said tract, and hence the title derived from the United States, based upon
homestead entry No. 6509, is a valid one.
The claimant does not show that the government patent has been set aside by a
decree of coart on account of priority of the railroad grant, nor am I aware of a case
similar to this, in which the court held that the railroa<l had the paramount title.
The claim was therefore denied, and the patent and quitclaim deed to
the government made by Pretzel were returned to him.
A motion for review of this decision was filed by applicant, and as a
ground therefor it was contended that the letters of your office of May
16, July 25, and August 22, 1895, were a final adjudication of the right
of Pretzel to reimbursement ; that by reason of these decisions this
question was res adjudicata. This motion was denied on the ground
that the prior instructions given were upon the hypothesis that the
railroad title was paramount, when, as a matter of fact, it was shown
not to be by the records of your office, and the whole matter still being
within the jurisdiction of your office, it had the authority to revoke
the former decision and render judgment in accordance with the record.
(Littlepage v. Johnson, 19 L. D., 312.)
The applicant prosecutes this appeal, assigning error in your office
decisions in holding that his claim does not come within the provisions
of the act of March 3, 1887; that the railroad company's title was not
paramount to that of appellant, and in overruling the motion for
review.
It was n^t error in your office to decide this matter according to the
record facts as subsequently disclosed in your office. Even if the
former letters could be dignified into a decision, the later discovery of
the actual coudition of the subject-matter of the controversy, while
your office still retained jurisdiction, would not prevent it from decid-
ing it according to the facts.
The fact that the land was excepted from the grant by reason of a
prior homestead entry is sufficient in itself to defeat the claim for reim-
bursement. By reason thereof the title conveyed by the government
is paramount to the claim of the railroad company.
This finding renders it unnecessary to discuss any other feature sug-
gested by the record.
10671— VOL 24 6
66 DECISIONS RELATING TO THE PUBLIC LANDS.
FEEJ^-DESERT L.AXD - STATE SELECTIONS.
T. J. Foster et al.
On the location of desert lands by a State nnder the fonrth section of the act of
August 18, 1894 the reginter and receiver are each entitled to a fee from the
State of one dollar for each final location of one hundred and sixty acres.
Secretary Francis to the Commissioner of the General Land Office^ Jan-
(I. H. L.) uary 30, 1897. (J. L.)
This case involves a question of law affecting administration :
Have the registers and receivers, in the location of lands by a State
nnder the fourth section of the act of August 18, 1894 (28 Statutes,
372-422), the right to demand a fee of one dollar for each officer for
each final location of one hundred and sixty acres, to be paid by the
State making such location, in accordance with the first clause and the
seventh subdivision bt section 2238 of the Revised Statutes of the
United States t
»
The case arose in this way. On August 28, 1896, the register and
receiver at Buffalo land district, Wyoming, telegraphed your office as
follows :
Are we to accept State selections nnder act of August 18, 1894, without fees.
On the next day, August 29, your office replied by telegraph as
follows :
Accept lists under section four act of August 18, 1894, without fees, according to
office letter of March 21, 1896. Copy will be sent.
And on the same day your office by letter "F" confirmed the tele-
gram, and transmitted '^ a copy of so much of said letter to the Hon.
Secretary in relation to Idaho list 1, under the same act, as decides this
question of fees." Said letter to the Secretary was dated March 21,
1896.
On August 31, 1896, your office by letter "M" instructed the receiver
of public moneys at Buffalo, Wyoming, to return to the State of Wyo-
ming all moneys paid as fees on selections of desert lands under the
4th section of the act of August 18, 1894 (28 Statutes, 372-122) <<as fees
are not properly chargeable on such selections."
On September 20, 1896, the register, T. J. Foster, and the receiver,
F. B. Proctor, in a joint letter respectfully requested your office to
review and reconsider the decisions aforesaid afifecting their fees and
greatly reducing their official comi>ensation.
On October 5, 1896, your office by letter "M'^ denied the application
for review, but said :
If yon are under the impresaion that fees are properly chargeable on selections
nnder the act of Angnst 18, 1894; the proper course for yon to pursue is to appeal
from the decision of this office.
DECISIONS RELATING TO THE PUBLIC LANDS. 67
Whereupon the register and receiver jointly appealed to this Depart-
ment.
By reference to the Secretary's letter, dated April 21, 1896, in reply
to the Commissioner's letter dated March 21, 1896, it will appear that
the Secretary did not consider or decide the question raised in respect
to the fees in controversy. That question is now distinctly presented
for adjudication, unembarrassed by any previously expressed opinion
by this Department.
The opinion and ruling contained in your office letter ^^F," dated
February 20, 1895, and addressed to the register and receiver at Chey*
enne, Wyoming, is clearly right. The opinion expressed in your office
letter *'F,^ dated March 21, 1896, and addressed to the Secretary, is
erroneous. .
Section 2238 of the Bevised Statutes provides that:
Registers and receivers, in addition to their salaries, shall be aUowed each the fol*
lowing fees and commissions, namely :
» ♦ • « * # #
Seventh. In the location of lands by States and corporations under grants from
Congress for railroads and other purposes (except for agricultural colleges), a fee of
one dollar for each final location of one hundred and sixty acres ; to be paid by the
State or corporation making such location.
By the fourth section of the act of August 18, 1894, Congress agreed
upon certain terms and conditions prescribed, to bind 'Hhe United
States to donate, grant and patent to the State tree of cost for survey
or price, such desert lands not exceeding one million acres in each
State/' as the state might within ten years after the passage of the
act, cause to be irrigated, reclaimed, occupied and cultivated (to the
extent of not less than twenty acres in each one hundred and sixty acre
tract) by actual settlers. There is nothing in this act tending to repeal,
modify or in any way atl'ect the law contained in section 2238 aforesaid.
The express limitations— /ree of cost for survey y and free of price — by
necessary implication exclude any other exemption from the usual costs,
fees, charges and expenses attending the administration of the Land
Department in such matters.
Your office decisions appealed from are hereby reversed. Your office
will direct registers and receivers, on the location of desert lands by a
State under the fourth section of the act of August 18, 1894, to require
the State to pay for each officer a fee of one dollar for each final loca-
tion of one hundred and sixty acres, as prescribed by section 2238 of
the Revised Statutes. Your office will also notify any State or States
having applications under said fourth section pending and undeter-
mined in which said fees have not been paid, that action upon their
applications will be suspended, until after they shall have paid to the
local officers the fees due in accordance with the aforesaid section 2238,
and this decision.
68 DECISIONS RELATING TO THE PUBLIC LANDS.
SWAMP LAXI>— SITRVEY— CUAR.VCTER OF LAXD.
State of California bt al. v. United States et al.
Where it ia apparent from the record that in the survey of a township, a large body
of land a<1jacent to a navigable lake has been omitted from actual survey,
through the establish men t of a meander line between alleged swamp and <lry
lands, instead of at the true shore line of the lake, a survey of the lands so
omitted should be made.
The claim of a State under the grant of swamp lands must fail if it does not appear
that the lands were of the character granted at the date of the grant.
Secretary Francis to the Commissioner of the General Land Office Jan-
(I. H. L.) uary 30^ 1897. (J. L.)
This case iuvolves the lands described in the following petition, situ-
ated in San Francisco land district, California.
By a petition dated May 29, 1890, John A. Fairchild, Annie Fair-
child, Jerome P, Churchill, F. E. Wadsworth, Mary Wadsworth, F. S.
Ackerman, Elisha De Witt, Helen Martin and WiUiam Lennox,
describing themselves as '' applicants for the goverament title to the
swamp and overflowed lands hereinafter described," requested the gov-
ernor of the State of California to apply to the United States surveyor
general for the State of California, for an immediate survey of the fol-
lowing described swamp and overflowed lands, to- wit:
Fractional portions of sections twenty-two (22), twenty-seven (27), twenty*six
(26), twenty-five (25), thirty-five (35), and thirty-six (36), all in township forty-eight
(48) north of range one (1) east, M. D. M.
Fractional portions of sections seven (7), eight (8), nine (9), sixteen (16), seventeen
(17), eighteen (18), nineteen (19), twenty (20), and thirty (30), all in township forty
seven (47) north of range two (2) east, M. D. M.
In support of this petition and as part thereof, they tiled the aflB-
davits of Jerome Churchill, John A. Fairchild, John Q. Hendricks,
and David Ream, rcvspectively.
David Eeam made oath :
That all of the unsurveyed land in townships 48 north of range 1 east M. D. M.,
and 47 north of range 2 east, M. D. M., which lies west of a meandering ridge or
elevated strip of land extending from a point near the center of the eastern boundary
of section sixteen (16) in township forty-seven (47) north of range two east, M. D. M.,
northerly to the northern boundary line of said Siskiyou county, which is also the
northern boundary line of the State of California, (and which said ridge or strip of
elevated land forms the natural western boundary of the shore of Little Klamath
lake — a portion thereof), was in the said year of 1874, and ever since it has been,
swamp and overflowed land.
John Q. Hendricks in his affidavit, qualified the foregoing statement
of David Beam, by inserting after the word *^ all," the words, " or nearly
all;" and by substituting the year 1872 instead of "1874;,"
Jerome Churchill in his affidavit made oath that:
All the unsurveyed portion of said last mentioned townships lying west of a cer-
tain ridge, or elevated strip of land, which forms the western boundary of Little
DECISIONS -RELATING TO THE PUBLIC LANDS. 69
Klamath lake properi (and which said ridge or strip of elevated land extends from
a point near the center of the eastern boundary line of section sixteen (16) in town-
ship forty seven (47) north of range two (2) east, M. D. M., in a general northerly
direction, with various indentations, until the said ridgereaches the northern bound-
ary line of said Siskiyou county), was, on the occasion of affiant's first visit in
1B65, and ever since it has been, 6wamp and overflowed land.
John A. Fairchild in bis affidavit, modified CburcbilPs statement
aforesaid by inserting the year 1858 instead of "1865."
In pursuance of said request, tbe governor of California, on Septem-
ber 3, 1890, in accordance witb section 4 of tbe act of July 23, 1866,
entitled "An act to quiet land titles in California,'' (14 Statutes, 218 —
U. S. Rev. Stat., Sec. 2488), filed witb tbe United States surveyor gen-
eral an application to bave segregation surveys made of tbe above
described lands, representing and describing wbat land of tbe said
lands, was swamp and overflowed under tbe grant, according to tbe
best evidence tbat can now be obtained. Tlie governor forwarded witb
said application tbe petition and affidavits aforesaid, and a copy of a
plat of survey of said land as made by tbe county su: veyor of Sisliiyou
county, California. Counsel were employed by tbe State autborities to
represent tbe State and tbe swamp land claimants ; upon condition tbat
tbe State "sball not be beld resi)onsible for any costs or expenses in
tbe matter."
On Marcb 2, 1891, tbe U. S. surveyor general transmitted to your
otBce for instructions, all tbe papers in tbe case, including all papers,
plats and field notes tbat bad accumulated in bis office in consequence
of correspondence witb tbe State surveyor general.
On May 29, 1891 (by letter "E"), j'our office, " witbout passing upon
tbe merits of tbe application," denied it, because tbere were " no funds
applicable for sucb cbaracter of surveys." Subsequently tbe swamp
land claimants deposited money to pay tbe expenses of tbe survey
requested by tbe governor. And on September 11, 1891, eighteen per-
sons claiming to be homestead settlers upon tbe lands involved, to- wit:
Will B. McGill, Henry K. Seal, M. Brownell, James Hayes, Joseph
Knight, J. Tbackery (or Tbackara), J. Boyle, A. Defreits (or Defratas),
J. Randall, F. Kenney, C. McManners, B. F. Oatman, S. Andrews, J.
Browning, F. Oatman, T. Smith, Augustus Mansfield, Jack White
and D, W. Inman, intervened, by filing a petition in which they deny
tbe claim of tbe State of California and tbe swampland claimants, tbat
tbe lands involved are or were swamp and overflowed lands made unfit
thereby for cultivation. On the contrary, they alleged tbat said lands
were and are good agricultural lands, susceptible of cultivation by the
ordinary means of farm tillage; and tbat crops of wheat, oats, barley,
com, grasses and garden vegetables, now grow upon said lands by tbe
application of the ordinary processes of agriculture. In their petition
they described severally the tracts of land occupied by tbe settlers
respectively, and upon which — they alleged — they reside with their
ianulies, forming a prosperous agricultural community, with dwelling
70 DECISIONS RELATING TO THE PUBLIC LANDS.
houses, barus and fences, public roads, a United States post office
(Browneli), aud a public district school house attended by fifteen pupils.
They pay taxes, and are in all respects under the government of the
regular State and county officers.
Thereupon the homestead settlers prayed that the lands be officially
surveyed, with a view to determining the respective rights of the State
of California aud the swamp land claimants on the one hand, aud of the
United Stittes and the homestead settlers on the other; in order that
they may be able to make their entries according to law.
All parties to this controversy in their statements or pleadings agreed,
(1) that the lands involved have never been officially surveyed; (2) that
said lands lie outside of Little Klamath lake; (3) that the true bound-
ary of the lake is the ri<lge or elevated strip of land hereinbefore
described; aud (4) that said lands should now be officially surve^-ed.
They dift'ered only as to the character of the lands; which can be deter-
mined as to each smallest subdivision, only after an official survey.
On January 7, 1893 (by letter " E"), your office rejected the applica-
tion of the governor of California *'to have segregation surveys made
of the above described land;" but instructed the surveyor general to
call a hearing as provided in the fifth subdivision (or paragraph) of sec-
tion 2488 of the Revised Statutes of the United States, "to determine
the character of the lands in question at the date of the swamp-land
grant, namely, September 25, 1850."
The hearing began on June 14, 1892, and was closed on August 20,
1892.
On September 10, 1892, the surveyor general rendered his decision as
to the lands situated in township 48 range 1 east, as follows:
In view of this undisputed evidence^ corroborated by a personal iuspection of the
land, I am of the opinion and so decide that the land in question was swamp and
overflowed at the date of the passage of the swamp land act of September 28* 1850,
and as such should inure to the State.
On May G, 1893, the surveyor general rendered his finding as to the
lands situated in township 47 north, range 2 east, as follows:
In conclusion it is my opinion that the lands nnder consideration embraced both
swamp and overflowed land and public land (meaning dry and arable lands), at the
date of the passage of the swamp land act of September 28, 1850; but as the official
subdivisional surveys have not been extende<l over this laud, it is impossible to give
either public, or swamp laud an ofiJcial designation. Such being the case, a decision
must be postponed until the neressary survey nhall have been made.
It is my judgment that the oflicial plat on Ale in this oflice, of township 47 north,
range 2 east, M. D. M., is erroneous; that there is a body of land in said township
which did and does exist, where a lake is alleged to exist ; that the same is not a
tract of land notoriously and obviously swamp and overflowed.
That a portion of said laud is public land fit for, and now settled upon and improved
as, agricultural land ; that portions of the said tract are swamp and overflowed; that
before the character of these lands can be fully determined by legal subdivisions
necessary to final adjudication, the public surveys must be extended over the same;
•nd until snch is done a decision as to the character ot each forty acre tract must be
DECISIONS RELATING TO THE PUBLIC LANDS. 71
postponed) and for that pnrpose I recommend au immediate survey of all siirveyable
land in said toTmship lying outside of the meander line shown on the official plat.
Ou March 20, 1894, your office decided that the lands described in
the grovernor's application for a survey, were not swamp and overflowed
lands made unfit thereby for cultivation, within the intent and mean-
ing of tho swamp laud grant of September 2<S, 1850, and thereupon
disallowed the claim of the State thereto and rejected the governor's
applieatiou for a survey. Your office further found and decided :
That ** for niAny years (prior to 1874 and doubtless iu 1850), the waters of Little
• Klamath lake covered all of the lands which were subseciuently found to be situate
outside of the meander line established by McKay iu his survey of 1874 and 1879/' and
''that lands covered by an apparently permanent body of water at the date of the
swamp land gi*ant are not of the character contemplated by said grant.^' . . . ^'It
therefore follo^nrs that as the lands. which were embraced iu the so-called 'impassible
tule swamp ' " in T. 47 N., R. 2 E., M. D. M., at the date of the official survey in 1874 and
1879, were in 1850 no doubt fully and completelj^ covered by the waters of the Little
Klamath lake, no testimony to the contrary having beeu submitted, and as the lands
are uow admitted to be in the main adapted to agriculture, it is apparent that the
State of California has no claim thereto under the swamp land act of September 28,
1850. Tbe application of the governor of the State of California on September 3,
1880, for a segregation survey of said lands was rejected for reasons set forth in office
letter *' E " of January 7, 1892. The claim of the State to said lands, on the assump-
tion that the same were swampy and overflowed on September 28, 1850, is hereby
disallowed.
Your office then proceeded to state, that
an examination of the official records shows that all of the lands in the several lots
in sections 18, 19 and 30. abutting on the official meander lines of Little Klamath
lake, liave been disposed of; also, with the exception of two lots, all of the similar
lots in. sections 17 and 20. With the exception of lot 1 iu section 34 and lots 1 and 6
in section 35, the title to all of the remaining lands adjacent to and closing on the
meander lines, is still vested in the United States^
And after referring to the case of "Lake Malheur" reported in 16
L. D., 256, and others, your office decided as follows :
It therefore seems clear that the requisite exterior, meander and subdivisional
lines in T. 47 N , R. 2 £., M. D. N., should be extende<l, where the title to the lands
np to the shore line remains in the government, and you are accordingly hereby
authorized to award a contract to a competent and reliable deputy surveyor for the
extension of sahl lines. This authorization, however, must not be applied to any
portion of the uncovered or recession lands in said township where the titles to the
lots adjoining the original meander lines of Little Klamath lake in sections 17,
18, 19, 20, 30, 34 and 35, as hereinbefore detailed, have been disposed of; it being
held in those cases that the riparian rights of said adjoining proprietors must be
recognized.
In resx)ect to "the alleged swamp and overflowed lands in the frac-
tional portions of sections 22, 25, 26, 27, 35 and 36, iu township 48
north, range 1 e^st, M. D. M., as claimed by the State of California
under the swamp land grant of September 28, 1850, your office found
the facts as follows:
1. In the absence of evidence to the contrary, and in view of the admitted condi-
tion of the lands in 1887, as shown by the returns of the county surveyor, it appears
72 DECISIONS RELATING TO THE PUBLIC LANDS.
fair to preenme that at the date of the swamp grant in 1850 the laDds in qaestion
were covered with water, and were in nn sense swamp land as contemplated by the
statute. It is held by the Department that land covered by an apparently perma>
sent body of water at the date of the swamp grant is not of the character contem-
plated by said grant.
2. The official records do not show that the title to any of the lands in T. 48 K.,
R. 1 E. (except to the swamp lands in sections 21, 22, 27, 28, 33, 34 along Hot creek,
and in section 36, all of which are denignated aM swamp on the official plat), has
pasf^ed from the government.
And thereupon your office decided as follows:
For reasons herein set forth, the application of the State of California that the
lands in the designated fractional sections in T. 48 N., R. 1 E., M. D. M., be declared
as swamp and overflowed land within the intent and meaning of the swamp land
grant of September 28, 1850, is hereby rejected.
The application for the survey of these lands was rejected for reasons stated in
office letter '' E *' of January 7, 1892 ; I know of no reason why the said action shonld
be reversed, and the same is reaffirmed.
Subsequently your office overruled a motion for a review of said
decision; and thereui)on the homestead settlers aforesaid appealed to
this Department.
The State of California and the swamp land claimants have not
appealed; and to that extent at least they seem to have acquiesced in
the decision of your office, and to abandon all claim of the lands in
question under the acts of September 28, 1850, and July 23, 1866 (14
Statutes, 219). This conclusion is placed beyond all doubt by the fact,
that the swamp land claimants have employed special counsel to resist
and oppose the homestead settlers' appeal. On page 2 of the brief
filed by said counsel it is said :
The present brief is filed on behalf of John A Fairchild and others, who are own-
ers of tracts adjoining a portion of the land in controversy^ and who seek an affirm-
ance of the Commissioner's derision establishing their title as riparian owners.
The plaintiffs manifestly expect, under color of riparian rights as
recognized and enforced by your office decision, to accomplish the
same practical results that they had hoped to attain by their petition
as swamp land claimants.
Following the method adopted by the surveyor general and also by
your office, this Department will consider the two townships separately.
Township 47 N., R. 2 E., M. D. M.
This Department c/)ncur8 in your office finding that on September
28, 1850, the lands embraced in T. 47 K, R. 2 B., M. D. M., were not
swamp and overflowed lauds made unfit thereby for cultivation ; and
your office decision disallowing the claim of the State of California to
said lands under the swamp laud act of September 28, 1850, is hereby
affirmed.
As was said in the case of Oregon i\ Porter, 22 L. D., 156-159:
V^hen after the lapse of more than (forty) years, — after the death of a generation
of men — persons- claiming t<i be assignees of the State, go ont to search for lauds
DECISIONS RELATING TO THE PUBLIC LANDS. 73
which were swamp and overriowed in (1850), they mnst expect to find the harden of
proof aggravated, hnt not shifted: Especially if the lands they may select, he not
now swamps, hnt the productive farms and healthy homen of indnstrions citizens.
Your office erred in assuming that Little Klamath lake is a non-navi-
gable lake. In fact, it is a navigable lake, eighteen or twenty miles
long and ten or twelve miles wide, lying about one half in California
and half in Oregon, with welldefinexl shores full of deep water, over
which there is now, and for many years has been, carried on useful and
profitable interstate commerce of freights and passengers, in steamboats
and other vessels. (See record of testimony, i)ages 614, 615, 621 and
622.) The cases cited and quoted in your office decision, in respect to
riparian rights, and lands acquired by accretion or reliction, are not
relevant in this case.
Your office erred in finding as follows:
In the ahsence of any testimony showing the character of the lands in T. 47 N., R.
2 E., at the date of the swamp land grant (Septeuiher 28, 1850), taken in conjunc-
tion with the admitted condition of the *^ impassahle tiile swamp'' in 1874 and 1879,
the conclnsion is reached that for many years (prior to 1874 and douhtless in 1850),
the waters of Little Klamath lake covered all of the lands which were suhsequently
found to he situate ontside of the meander line estahlished hy McKay in his surTey
of 1874 and 1879.
The testimony does not sustain said ''conclusion." The topography
of the neighboring country as shown in evidence, proves conclusively,
that it is physically impossible, that the lands referred to, could have
been covered in 1850, or in 1874, or in 1880, or at any other time, since
1850, by the waters of Little Klamath lake.
In the mouth of July, 1874, when United States deputy surveyor
Alexander McKay made his survey of said township, he ran and estab-
lished a meander line to mark the boundary between the *' plateau" of
arable public land and the lands which he considered swamp and over-
flowed and unfit for cultivation. Then and there, between that meander
line and the shore or water line of the distant lake itself, there lay
uncovered and visible to the eye, a tract estimated to contain 7,080.69
acres of land, which he, the deputy surveyor, did not survey, but
designated on his plat and in his field notes as ''swamp and overflowed
land."
Moreover, if it were true that in the year 1850, said 7,080.69 acres
constituted part of the bed of Little Klamath lake and were entirely
covered by its waters, that fact (if shown), would be immaterial and
irrelevant in this case. If in the interval between 1850 and 1874, said
7,080.69 acres had been brought to the light, by accretion or by relic-
tion— ^by the gradual accumulation of earthy matter or by the reces-
sion of the waters of the lake — such increment of land would have
been in 1874 the property of the United States as the sole owner dur-
ing that period of time.
The only colorable evidence to be found in this record tending to
8upi)ort j'our oifice finding "that for many years (prior to 1874 and
74 DECISIONS RELATING TO THE PUBLIC LANDS.
doubtless in 1850), the waters of Little Klamath lake covered all the
lauds which were subsequently found to be situate outside of the
meander line established by McKay in his survey of 1874," is one of
the plats or maps of T. 47 X., R. 2 E., M. D. M.,uowou tile in your office.
This map bears the certiticate of the surveyor general in the following
unus'iMl form:
The above map of township No. 47 north, range No. 2 east, Monut Diablo nieridian,
has been constructed in accordance with instructions from the General Land Office
dated November 26, 1879, from the field notes of the surveys thereof on file in this
office.
The<». Wagner,
Sttrr. Genl, Cat.
SrRVEYoR Gkxekal's Office,
San FranciscOf California, February 3rd^ 188(K
There is another plat or map of said township also on file in your
office (and bound in the same volume 27 with the other), which bears
the surveyor general's certiticate in the usual form, as follows:
The above map of township No. 47 north, range No. 2 east, Mount Diablo meridian,
is strictly conformable to the field notes of the surveys thereof, on file in this office,
which have been examined and approved.
Theo. Wagner,
Surveyor General's Office, Surv, GenL Cala,
San FrancincOy California^ Norembtr IS, 1879,
The history of these two maps of the same township as compiled
from the official papers now before me, will make it clearly manifest
that your office committed errors in holding (1) that the lands in ques-
tion were once part of the bed of Little Klamath lake; (2) that the
fractional lots shown upon said maps, abutted upon or were adjoining
to the shore line of said lake; and (3) that the owners of said lots had
riparian rights which must be recognized.
The date of McKay's contract with surveyor general Hardenburg
was October 6, 1873. McKay began his survey on July 7, 1874, and
finished it on July 20, 1874 : — except as to four courses, which he (the
deputy surveyor), in his field notes calls, ''Meanders of Little Klamath
lake and outer Hue of tule and swamp unfit for cultivation,"' **This
water line was run on the ice February 19, 1879," as hereinafter stated.
McKay did not return his field notes to the surveyor general's office
until 1877; when they were returned to him for the reason "that they
were not sufficiently explicit as to the meander line of Klamath lake as
run by him." "The notes were again returned by Mr. McKay April 3,
1879, with the explanation that the long delay had been occasioned by
the necessity of waiting until the ice had formed so he could re-run
the meander line as directed by the office;" and with an amendment
to the field notes in the following words:
Meanders of Little Klamath lake and outer line of
tule and 8wauip unfit for cultivation.
Commencing at the end of the 13th course aa reported,
in the meanders of Sec. 25 of the inner meander line
between arable land and swamp and overflowed land
unfit for cultivation.
DECISIONS RELATING TO THE PUBLIC LANDS. 75
Course. Dist. Rexoarks,
S. 75- W. 101.50
N. 20^ W. 253.00
N. 3^ W. 50.00
N . 33^ "NV. 100.00 To ^ Sec. and meander cor. between Seen. 4 and 33
ou the north boundary of the township. Note. This
water line was run on the ice Feb. 19, 1879.
Surveyed by
Alkx. McKay.
On September 29, 1879, Surveyor General Theo. Waguer, accom-
panied by one of bis deputies as compassmau, went in person upon
the premises, and ''carefully retraced the line of segregation of the
swamp and overflowed land from the dry land."
I found (he said in his report to your office of November 14, 1879), that said line
^as properly established ; and that the meander line of Mr. McKay's snrvey had
been properly run upon the shores of the lake, and might have been established at
any time by submitting to a little inconvenience and wading through the mud — the
waiting for the formation of the ice being wholl^*^ unnecessary.
And on November 13, 1879, the surveyor general certified the map
which had been prepared in strict conformity with the field notes of
the surveys of the township examined and approved, as first made by
Deputy Surveyor McKay and afterwards by the surveyor general in
person. The face of the map itself, and the application to the map of
the calls of the field notes of the meanders of the swamp and the lake
respectively, show that in 1874 and 1879 there was in existence,
uncovered and visible to eye, a body of land called "swamp" by the
surveyors, and containing by estimation 7,080.69 acres, which was care-
fully segregated from the arable land and from the lake, by the inner
and the outer meander lines delineated and described.
On November 26, 1879, by letter "E" addressed to the surveyor
general, your office,
found the returns of snrvey defective and irregular . . . . . in that
neither the exterior meanders nor subdivisional lines were actually established in
the field; .... but the line called the outer line of tule &.C., or segregation
of the impassable swamp from the open lake, although run and measured on the ice,
was not marked in any manner, neither was there any subdivisional corner set or
'iriren in any part of the ^'impassable swamp.''
Your office then proceeded to say:
Under these circumstances the survey as a whole, cannot be approved by this
office, and is therefore rejected in so far as relates to the running of said ''outer
meander line" and the consequent platting of swamp lands.
I have to direct that upon receipt hereof, you will make annotation upon the plat
and field notes of this snrvey, of my decision, and prepare a new plat showing the
survey of the township only to the *' inner meander line," so caUed by the surveyor.
It is plain that the phrase ^Mnuer meander line" was understood by
all parties to mean the meander line between arable land, on the one
side, and swamp and overflowed land unfit for cultivation, on the other;
and that the phrase "outer meander line," meant the line along the
shore of the lake proper, close to the water's edge, separating the water
76 DECISIONS RELATING TO THE PUBLIC LANDS.
of tbe lake from the swamp and overflowed laud. The objection of
your office embraced only tbe four meander courses copied above, which
were run and measured on ice (and which on the map first returned,
marked the western boundary of Little Klamath lake); and ^Hhe con-
sequent platting (imaginary) of swamp lands." Your office distinctly
recognized "the inner meander line so called by the surveyor" — ^notas a
meander of Little Klamath lake — but as the line of demarkatiou between
the lands high and arable, and the lands alleged to be swamp and over-
flowed; and plainly directed the surveyor general to "prepare a new
plat showing the survey of the township only to that line," which was
in fact the extent of McKay's actual survey. Your office thus approved
the plat and survey and fleld notes first returned, so far as courses
had been run, lines meandered, and corners established, actually, in
the field; and rejected them only as to the residue of the township.
The new plat was intended to show that the township was only par-
tially surveyed; and that all the lands north and east and northeast of
the arable land aforesaid were uu surveyed. Your ofiice gave this direc-
tion with knowledge of the fact, that said unsurveyed portion of the
township embraced (by estimation) 7,080.69 acres said to be swamp
and overflowed, and 7,619.13 acres said to be covered by the waters of
Little Klamath lake. The new map was to be ancillary to the first
map, and prevent confusion by showing separately the arable public
lands open to settlement and entry : Reserving for future consideration
all questions between the United States and the State of California, in
respect to the alleged swamp and overflowed lands.
On February 4, 1880, the surveyor general furnished the new plat or
map "constructed in accordance with instructions." It shows onl}'^ the
arable public lands which had been actually surveyed. The lines of
the survey were closed upon the " inner meander line," separating the
arable from the swamp lands; and the fractional subdivisions thereby
made necessary, were divided into lots and numbered. The new plat
and the first plat were bound together in volume 27 of the official
maps of California, and thus remain of record in your office jointly as
a delineation of the township. They show conclusively that none of
the lots surveyed and numbered therein abut upon or adjoin Little
Klamath lake; — except lots 4, 5 and G in section 25, which have not
been disposed of by the United States.
A ftirther examination of the records of your office shows that only
four patents have been issued for said lots, as follows:
On May 6, 1887, to Jerome Churchill for lots 1, 2, 3, 4 and 5 of section
18 and lot 2 of section 19.
On April 29, 1889, to Manuel J. Miller for lot 1 of section 30.
On January 28, 1890, to Norris F. Skeen for lots 3, 4 and 5 of sec-
tion 35.
On November 9, 1891, to Annie E. Fairchild for lots 1, 2 and 3 of
section 17, and lots 1 and 2 of section 20.
DECISIONS RELATING TO THE PUBLIC LANDS. 77
Two of said patentees, Jerome Churchill and Annie E. Fairchild were
original plaintiffs in this controversy. None of them have any riparian
rights whatever. The lands granted by their patents were limited by
the straight subdivisioual and meander lines which defined the lots
on the face of the map.
The voluminous testimony in this case has been carefully examined.
There appear such discrepancies as usually appear when interested
parties, very much in earnest, are called to testify against each other.
The witnesses all agreed that in 1874, there was no lake upon the land
in controversy ; and that the estimated tract of 7,080.69 acres, desig-
nated on the first map as ''swamp and overflowed land," was land in
full view. They difl'ered as to the character of the land, whether it was
in whole or in part, wet or dry — arable or unfit for cultivation. It is
not necessary for the disposition of this case to decide between them.
It is enough to find, as this Department does, that there is a large body
of public lands belonging to the United States which has never been
surveyed now occupied by homestead settlers.
Your office decision of Marcn 20, 1894, in respect to the lands in T*
47 N., E. 2 E., M. D. M., is hereby reversed so far as it conflicts with
the opinions herein expressed. Your office is hereby instructed to
cause an official survey to be made of all the lands in said townshi)»
lying north of the i^eander line established in the field by deputy sur-
veyor McKay and delineated on the maps of said township on file in
your office^ and cause said survey to be closed upon the true shore or
water line of Little Klamath lake, as ascertained, meandered and
established by actual survey.
Township 48 N., R. 1 B., M. D. M.
In respect to the lands in T. 48 !N., R. 1 E., your office decision found
that they were not in 1850 swamp and overflowed and unfit for cultiva-
tion; and decided that they did not pass to the State of California
under the act of September 28, 1850. This finding and decision are
hereby approved and affirmed.
Your office further found that on September 28, 1850, said lands were
probably a part of the bed of Little Klamath lake, and covered with
water. The only evidence in this case tending to support this finding
is the official map of said T. 48 X., R. 1 E., approved by the surveyor
general on April 21, 1875, and now on file in your office. Said map
purports to be a complete plat of the whole township and its correct-
ness does xiot appear to have been called in question before this contro-
versy arose. On the face of the map 772.40 acres of "swamp and
overflowed land'' are designated within the surveyed i)ortion of the
township, to- wit : 40 acres in section 36, 200 acres in section 34, 80
acres in section 33, 280 acres in section 28 and 172.40 acres in sections
21 and 22. **The meanders of Little Klamath lake," which were run
on May 30, 1874, are plainly drawn upon the map, and seem to mark
78 DECISIONS RELATING TO THE PUBLIC LANDS.
the boundary between the arable public lands and the waters of the
lake, as they stood on that day. The area of the lake was estimated
at 5,622.65 acres. The plaintiffs in their application claimed only
1,685.60 acres; which according to MitchelFs map filed by them, appears
to be an increment of land developed since the date of the official sur-
vey; and which has been caused, perhaps in part, by the fact that
Little Klamath lake has been tapped to irrigate large areas of arid
lands in Oregon, which lie below the level of the lake.
Your office decision certifies that, —
The official records do not show that the title to any of the lands in
T. 48 N., R. 1 E. (except to the swamp lands in sections 21, 22, 27, 28,
33 and 34 along Hot creek and in section 36, all of which are desig-
nated as swamp on the official plat), has passed from the government.
So that the governmeut remains the sole owner, except as to said
<< designated'^ swamp subdivisions.
The testimony in respect to the lands in this township is compara-
tively meagre (Record pp. 1 to 52). Only seven witnesses were intro-
dnced by the plaintififs, and none by the defendants, of whom, only one
ever claimed a settlement on this township, to- wit: ^'D. W. Inman, on
portions of section 36, T. 48 N., R. 1 B.''; and he appears to have aban-
doned his settlement. The concurrent testimony of all of said wit-
nesses shows that in the year 1874, there was no lake, at the places
where the lands claimed by the plaintiffs in this township now appear;
which accords with the affidavits filed with the plaintiffs' application,
and appears to be true notwithstanding the official map.
This Department does not concur in your office opinion that "it
appears fair to presume that at the date of the swamp grant in 1850
the lands in question were covered with water."
That part of your office decision which rejects the application of the
governor of California for a survey of the lauds claimed in this town-
ship 48 N., R. 1 E., is hereby affirmed; but without prejudice to the
jurisdiction and authority of your office, at any time, upon the applica-
tion of any other person interested, or of your own motion, to direct an
extension of the lines of the former survey over the whole township, in
order that the meander lines now appearing on the map may be read-
justed ; that the true shore or water lines of Little Klamath lake, and
of other meanderable lakes that may be found in said township, may
be meandered and definitely established; and that the character of the
lands now apparent, down to the smallest subdivision, may be deter-
mined.
DECISIONS RELATING TO THE PUBLIC LANDS. 79
ALIEN ATU>X-IIOMESTEAI> ENTHY.
Walker r. Clayton.
A written agreeineBtto convey the land covered l>y ji homestead entry, made prior to
the submission of final proof, will defeat the right of the entryman to perfect
his entry.
Secretary Francis fo the Commissioner of the General Land Office, Jan-
(I. H. L.) vary 30, 1^97. (E. B., Jr.)
I have (considered the case of L. M. Walker r. Charles J. Clayton, on
ap}>eal by tlie latter from your office decision of October 29, 1895, hold-
ing his homestead entry, No. 7386, made December 27, 1889, for the
NE. \ of section 32, T. 2G S., R. 23 E., M. D. M., Visalia, California,
land district, for cancellation on the ground, in effect, of his bad faith,
as evidenced by his agreement with one May, to convey the land to
him, ptior to final proof. The only question necessary to be discussed
is that of bad faith.
A contest charging generally, that Clayton made the entry for specu-
lative parxK)des and specifically that on July 14, 1894, he entered into a
written contract with E. F. May, to convey to him for a valuable con-
sideration in money and land the tract above described and certain
other property, was initiated by said Walker, February 7, 1895. He
had, on August 30, 1894, filed a contest affidavit of the same tenor,
which was dismissed December 13, 1894, upon Clayton's motion, '* for
want of prosecution.'' A hearing, in March, 1895, upon the contest
first above mentioned, resulted adversely to the entryman, the decision
of your office being an affirmance of the decision of the local office.
The record shows that Clayton entered into a contract as charged,
which was to be executed within sixty days from the date thereof, the
party making default to forfeit to the other '^ one thousand dollars as
liquidated damages, and such other damages as may in consequence of
such failure be legally established.'' An endorsement on the contract
shows that Clayton sought an extension for ninety days of the time
within which the contract might be executed. No extension was
agreed to by May. The contract has not been executed in any particu-
lar, so far as appears, on the part of either party. It is admitted by
Walker that Clayton had complied with the homestead law up to the
time of the hearing in respect to residence and cultivation.
Clayton commenced to reside upon the land in February, 1890. He
was allowed leave of absence under the act of March 2, 1889 (25 Stat.,
854), from May 13, to December 13, 1890, a period of seven months.
The five years of residence and cultivation necessary to acquire title
by that means under the homestead law would not end, therefore, until
September, 1895. The agreement to convey was thus made about four-
teen months before he could submit his final proof or acquire any title
80 DECISIONS RELATING TO THE PUBLIC LANDS.
to the land, uuless by purchase under section 2301 of the Revised Stat-
utes, and it is not shown that he had any intention to so purchase. In
his homestead affidavit he ha<l sworn that the entry was made for his
exclusive benefit and not directly or indirectly for the benefit or use
of any other person or persons whomsoever, and he knew that in
his final affidavit he would be required to make oath, subject to an
exception not here in point, that he had not alienated any part of the
land (Sections 2290 and 2291, Kevised Statutes). It was evidently
implied, if not expressed, in his contract with the United States, that
he would continue to hold, reside upon and cultivate the laud for his
exclusive use and benefit until the time should arrive, when, aft^r the
submission of final proof as required by law, he had earned his right
to receive patent therefor.
It is no adequate defence that May could not enforce specific perform-
ance of the contract. Clayton might, of his own volition, have carried
it out, and it is this mischief that the statute is designed to remedy
(Moliuari i\ Scolari, 15 L. D., 201). Neither is it any sufficient answer
that by its terms the agreement had come to an end long before contest
was initiated. It was in force when the first contest affidavit was filed,
and was sought by Clayton on August 29, 1894, to be continued ninety
days beyond the limit first agreed upon. If when threatened with
exposure of ba<l faith a homesteader could in each instance avoid the
consequences by simply repudiating his contract to convey, the sanction
of the law would be overthrown.
In the case of Tagg i\ Jensen (16 L. D., 113), it was laid down as the
settled construction of the pre-emption law relative to alienation '' that
any agreement to convey any part of an entry or claim to another made
prior to final proof will defeat the claim." While the language of the
pre emption law was more explicit than that of the homestead law as
it stood at the date of this entry, the spirit and intent of ea<;h on the
point at issue was the same; and section 2290 of the Revised Statutes,
as amended by the act of March 3, 1891 (26 Stat., 1095), was made to
conform substantially to the language of the former. See in this
connection Bashford v, Clark et at, (22 L. D., 328).
The suggestion in the argument of counsel that Clayton *'may have
been inveigled into making" said contract by the contestant Walker,
should receive some attention. It appears that the initiative in the
matter of said contract was taken by Clayton himself; that he came to
the office of Walker who was then a member of a firm of real estate
agents in San Francisco, California, and employed him to effect the
sale or exchange of this tract and other real estate then held and
claimed by him (Clayton); and that Walker had no knowledge that
any of the property thus sought to be sold or exchanged was govern-
ment land, until on August 29, 1894, when Clayton sought the ninety
day extension of the contract hereinbefore mentioned, which extension
was not made. Walker was then informed by Clayton for the first time
DECISIONS RELATING TO THE PUBLIC LANDS. 81
that this tract aud anotber, for which the latter had made timber cul-
ture entry, and which were both included in the contract to convey^
were government land upon which he had not made final proof, and
that he wanted the extension to give him time within which to make
such proof. Be had up to that time successfully concealed from
Walker the fact that the contract embraced government land, concern-
ing which the former was apparently attempting to commit a fr:uid
against the government. The next day after hearing this fact Walker
filed his first contest affidavit against the entry. The evidence doe&
not in any way connect Walker with the attempted fraud.
The decision of your office is affirmed, Clayton's entry will be can-
celed, and Walker given the preference right to enter the land.
APPLICATION TO ENTER-CONTEST-RELIXQUISHMENT.
CowLEs V. Huff et al.
An application to enter Bhonld not be received, during the time allowed for appeal
from a judgment canceling a prior entry of the land applied for; nor the land
so iDvolved held snbject to entry, or application to enter, until the rights of the
entryman have been finally determined.
The case of Allen r. Price, 15 L. D., 424, cited and followed; and the case of Henry
Gauger, 10 L. D., 221, overruled.
Where an entry is nnder contest, and a relinquishment thereof is filed, followed by
an application to enter, made by a stranger to the record, such application
shonid be held to await the expiration of the time allowed a snccessfnl con-
testant for the exercise of his preferred right of entry, or may be allowed if it
appears that snch contestant is disqualified to make entry, or has waived his pre-
ferred right.
Secretary Francis to the Commissioner of the General Land Office, Jan-
(I. H. L.) uary 30, 1897. (W. M. W.)
In the case of R. Jay Oowles r, James L. Huff et al. Oowles appealed
from year office decision of March 31, 1894, rejecting his application to
enter the NE. J of Sec. 7, T. 22 S., R. 34 W., Dodge City, Kansas, land
district.
On October 31, 1895, my predecessor rendered a decision reversing
the judgment of your office in said case. By letter of November 14,
1895, the Department requested your office to re transmit the papers
and decision in the case for re-examination, which request your office
complied with on the 20th of November, 1895 ; and also advised the
Department that said decision had not been promulgated.
Such re-examination has been made. It appears that on April 28,
1885, one Mary J. Moore made timber-culture entry for the land in
question.
On May 11, 1889, A. C. Brady filed a contest against Moore's entry,
charging failure to comply with the law.
10671— VOL 24 6
82 DECIBI0N8 RELATING TO THE PUBLIC LANDS.
On December 19, 1891, your office held Moore's entry for cancellation
upon Bracly's contest.
On December 26, 1891, James L. Huff applied to make homestead
entry for the tract. His application was rejected by the local officers,
and he appealed to your office.
On January 8, 1892, Moore appealed to the Department from your
office decision of December 19, 1891, holding her entry for cancellation.
On July 7, 1893, the Department affirmed the judgment of your office
holding Moore's entry for cancellation.
On July 22, 1893, said departmental decision was promulgated.
On August 19, 1893, Moore filed a motion for review.
On December 26, 1893, Moore's relinquishment was filed in the local
office, bearing date August 21, 1893.
On December 26, 1893, at the same time Moore's relinquishment was
filed in the local office, Cowles presented his application to enter said
land, which was rejected by the register and receiver because of Brady's
pretorence right and the rights of Hufif under his appeal.
Moore's relinquishment having been forwarded to th^ Department to
accompany the motion for review filed by her in the case, thereupon, on
January 25, 1894, the motion for review was returned to your office, with
the statement that action by the Department was rendered unnecessary
by said relinquishment.
Cowles appealed on February 10, 1894, irom the action of the local
officers rejecting his application to enter said land, urging that he was
the first legal applicant for this laud; that Brady was not qualified to
enter the tract, and that he had sold his interest to Hufif before the
latter presented his application to enter; that Huff gained nothing by
his application, for the reason that the land applied for was not subject
to entry at the time the application was made; and that he (Cowles)
was a bona fide settler on the land.
In reply to Cowles' appeal, Hufif denied the alleged superior right of
Cowles, and furnished an affidavit of Brady, sworn to February 7, 1894,
stating that he (Brady) brought his contest against Moore in good faith,
expecting to make a timber culture entry for the tract in question ; that
by reason of the repeal of the timber culture law *^he is not now a
qualified entryman (having used his homestead right), and that he can
not enter said tract" He also stated that he informed Huff of these
facts, and that Huff has paid the expenses of said prosecution to him
(Brady), and ^^in consideration of which affiant agreed to assert no
claim to said tract, and that with this understanding said Huff made
application for said tract."
Cowles' appeal and Huff's answer were forwarded by the local officers
to your office on the 19th day of February, 1894, and though recieived
on the 23d day of February, 1894, by your office, they did not reach the
files ill time to be considered in your office decision of February 27,
DECISIONS RELATING TO THE PUBLIC LANDS. 83
1894, which closed the case of Brady v. Moore, and held that the local
ofiScors
«rred in refeeUng Hnifs application to enter after this office had hehl Moore's entry
for cancellation and before Moore had appealed from snoh action (see Henry Ganger,
10 L. D., 221, and Patton r. Kelley, 11 L. D., 469), as yon should have held snch appli-
cation to await the termination of the right of the prior parties; directed yon (the
local officers) to allow Huff to enter the land in controversy, if qualified to do so,
in the event Brady did not exercise his preference right of entry ;
aud instructed the local officers to forward the appeal of Cowles in case
he should tile one.
By your office decision of March 31, 1894, Cowles' appeal was dis-
missed, without prejudice to his right to contest Huff's entry, should
the latter make entry, upon any sufficient ground. Huff was allowed
by the local officers to make homestead entry for said land on March
29, 1894.
Cowles appeals.
The errors assigned substantially amount to two propositions : (1) That
Huff acquired no rights by virtue of his application or appeal of D^em-
ber 26, 1891, for the reason that at that time the laud in question was
covered by the uncanceled entry of Moore. (2) That Moore's relin-
quishment, filed on the 26th day of December, 1893, served to release
the land, and that Cowles' application to enter the land, made on the
same date, should have been allowed.
Counsel for appellant has filed a brief, wherein he contends that the
case of Henry Ganger, 10 L. D., 221, cited in your office decision, is
distingaishable from the case at bar, and that the other case cited,
Patton V. Kelley, 11 L. D., 469, is not in point.
In order to determine the questions presented, it seems proper to
refer at some length to the rulings of the Department on the points
raised.
In the case of Henry Ganger, supruj a timber culture entry had been
made and contested ; on such contest said entry was held for cancella-
tion ; before the time in which the entryman might have appealed and
that allowed the contestant to assert his preference right of entry had
expired, Ganger made application to enter said land under the timber
culture law. His application was rejected by the local officers, and their
judgment was affirmed by your office. The Department reversed the
decision of your office upon Ganger's appeal, holding as follows:
A judgment rendered by your office holding an entry for cancellation is final as to
your office, and an application to enter during the time allowed for appeal from
snrh judgment "should be received subject to the right of appeal, but not made of
record until the rights of the former entryman are finally determined, either by the
expiration of the time allowed for appeal or by the judgment of the appellate tri-
bnnal" (John H. Reed, 6 L. D., 563); and an application to enter, made before the
time aUowed the successful contestant to assert his preference right has expired,
should be allowed subject to such preference right, and, on its subsequent assertion
within the prescribed time, ''•iq'^ noting thereof should be given the Intervening
84 DECISIONS RELATING TO THE PUBLIC LANDS.
entryman, with opportunity to show cause why his entry should not be canceled,
and the contestant allowed to perfect his entry*' (Geo. Premo, 9 L. D., 70: Welch
r. Duncan, 7 L. D., 186).
The record iu the John H. Keed case shows that, at the time said
Reed applied to enter the tract there in question, it was shown by tlie
records of your office and the local office, to be open and subject to
entry by the first legal applicant; of this there can be no question, for
the entry of George 6. Reed for the tract was canceled and so noted
on the records of the local office on January 5, 1885, and thereafter
there was no entry or application to enter prior to January 23, 1885,
when John H. Reed made his application to enter it. It thus appears
that the date of the cancellation of Oeorge G. Reed^s entry was not
material in determining the case before the Department. The reason-
ing in the Reed case quoted in the Ganger case was based solely on an
immaterial issue, not involved in the case. The quotation in the Gan-
ger case from the Reed case is mere dictaj and can not be accepted as
authority.
In Patton v, Kelley, 11 L. D., 469, the facts are, that on December 20^
1886, Kelley made homestead entry for the land involved; Patton con-
tested said entry, and on June I, 18S9, your office held the entry for
cancellation; on July 10, 1880, the widow of the entryman appealed
from your said office decision ; on August 8, 1889, the widow of the
contestant filed an application to make homestead entry of the tract;
the register and receiver rejected her application, because the tract was
covered by Kelley's entry; on her appeals, respectively, to your office
and the Department, the decision of the local officers was affirmed. It
is clear that Patton r. Kelley does not follow the Ganger case.
In Perrott r. Connick, 13 L. D., 598, the Ganger case is referred to,
but the record shows that Perrott^s application to purchase the laud
in question was made two days after the final judgment of the Depart-
ment cancelling the cash preemption entry of Setchel and at a time
that the land was clear and open to entry.
The right of Henry Ganger to the land involved in his case, reported
in 10 L. D., 221, was also involved in the case of Owens v. Ganger, IS
L. D., 6. It was there held that Ganger acquired no rights to the land
under his contest, for the reason that the entry of Sheppard was can-
celed ux>on a prior contest of one Bunce, and that Owens was the first
applicant to enter the land after Sheppard's entry was canceled. There-
upon Ganger's entry was canceled and Owens' former entry reinstated.
In McNamara r. Orr et a?., 18 L. D., 504, the Heniy Ganger case was
referred to, but the doctrine announced was not a controlling factor in
determining that case.
In McMichael r. Murphy et aZ., 20 L. D., 147, the Henry Ganger ca«e
was cited with approval. The facts showed that the entry under attack
was held for cancellation March 7, 1890, and four days thereafter an
application to make soldier's additional homestead entry of the tract
DECISIONS RELATING TO THE PUBLIC LANDS. 85
was made; that sach applicatiou was not placed of record, but lield
cmder the rale announced in the Gauger case. These facts clearly
brought the case within the rule laid down in the Gauger case, and was
governed by that rule.
In Allen r. Price, 15 L. D., 424, it was held (syllabus) that:
On the saccessfnl tenuinatiou of a contest the land embraced within the canceled
entry should be reserved for the benefit of the contestant during the statutory period
provided for the exercise of Ii'm preferred right of entry. If an application to enter
is presented during said period, by a stranger to the rec<»rdy it should be held in
abeyance to await the action of the contestant. If a waiver of the preference right,
duly executed by the contestant, is filed, the tract will be thereafter held subject
to entry.
On March 30, 1893, the Department issued a general circular respect-
ing the practice under motions for review, and aft^er referring to Allen
r. Price, fmpra, it was said :
III cases where an entry is canceled by reason of contest, the land covered by the
same is to be reserved from entry for the period of thirty days from due notice to
the cont«*stant of his preference right of entry thereof. Should an application to
enter the land be presented by a stranger to the record, you will receive and hold
the same in abeyance to await the 2iction of the contestant, and should such con-
testant fail to exercise his right, such application or applications must be disposed
of in accordance with the law and rulings of the Department. ShouM a waiver of
the preference right of entry duly executed by the contestant be filed, the tract will
at onc<* become subject to entry. (See 16 L. D., 334.)
The Henry Gauger case was referred to in McDonald et ah r. Hart-
man et al,^ 19 L. D., 547, 557.
Allen r. Price has been referred to and followed in the following
cases: Severy r. Bickford (on review), 16 L. D., 135; Newell r. Pete-
fish, 20 L. D., 233; Mayers r. Dyer, 21 L. D., 187, and McCormack v.
Violet, lb., 451.
The several points decided by the Gauger and Allen r. Price cases
mav be summarized as follows :
The Gauger case held, (1) That an application to enter made during
the time allowed for an appeal from a judgment of your office holding
an entry for cancellation, should be received subject to the right of
appeal but not made of record until the rights of the former entryman
are finally determiped. (2) That an application to enter, made before the
time allowed the successful contestant to assert his preference right
has expired, should be allowed subject to such preference right. (3)
On the subsequent assertion of the preference right by the contestant
within the time prescribed, notice thereof should be given the inter-
vening entryman to show cause why his entry should not be canceled.
Allen r. Price held, (1) That on the successful termination of a con-
test and the cancellation of an entry the land embraced in such entry
should be reserved for the benefit of the contestant during the period
allowed by law for the exercise of his preferred right of entry. (2) If
an application to enter is presented by a stranger to the record, during
86 DECISIONS RELATING TO THE PUBLIC LANDS.
the time allowed the successful contestant to make entry of tlie tract
involved, such application should not be acted on by the register and
receiver when presented, but should be held in abeyance to await the
action of the contestant. (3) If a successful contestant files a duly
executed waiver of his preference right, the tract involved will there-
after be subject to entry.
This summary shows beyond any question that there is, in soii.e par-
ticulars, at least, an irreconcilable conflict between these cases. To
the extent of such conflict, one or the other of them must be overruled.
From a careful examination of the subject I am convinced that the
doctrine announced in Allen v. Price furnishes the better practice and
it will be followed. The case of Henry Ganger, 10 L. D., 221, is there-
fore overruled. All other cases following it, in so far as they may be
in conflict with the views herein expressed, are also hereby overruled.
In the case at bar, Huft' made his application to enter while Moore's
entry was still in existence, and continued to exist for over a year and
a half thereafter. His application was rejected, and he appealed.
The question is, whether he acquired any rights under his application
under the law, or rulings of the Department. This question can best
be determined by reference to the rulings of the Department and
courts.
The Department has repeatedly held that an entry segregates the
land covered thereby, and so long as such entry exists, it precludes
any other disposition of the land. Whitney r. Maxwell, 2 L. D., 98;
Schrotberger v. Arnold, 6 L. D., 425; Allen r. Curtius, 7 L. D., 444;
JamesA. Forward, 8 L. D., 528; Russell r. Gerold, 10 L.D., 18; Swims r.
Ward, 13 L. D., 686; Hanscom r. Sines, et al,^ 15 L. D., 27; Faulkner
V. Miller, 16 L. D., 130.
The courts have held the same view. Witherspoon t?. Duncan, 4
Wall., 210; Hastings and Dakota R. R. Co. t\ Whitney, 132 U. S., 357;
Starr v. Burk, 133 U. S., 541, 548.
If the land covered by a subsisting entry is not subject to dispo-
sition, it follows that an application to enter such land confers no
rights whatever upon the applicant. If such application shall be
rejected, and an appeal be taken from such action, it is not a pending
application that will attach on the cancellation of the previous entry,
for the appeal can not operate to create any right not secured by the
application itself. See Patrick Kelley, 11 L. D., 326; Ooodale r. Olney
(on review), 13 L. D., 498; Maggie Laird, Id., 502; Holmes v. Hockett,
14 L. D., 127; Swanson r. Simmons, 16 L, D., 44; Mills v. Daly, 17 L. D.,
345; Cook v. Villa (on review), 19 L. D., 442; Walker r. Snider (on
review). Id., 467; Gallagher r. Jackson. 20 L. D., 389; McMichael r.
Murphy et al, (on review), Id., 535 ; McCreary r. Wert et al., 21 L. D., 145.
In view of these authorities, it is held that Huff did not acquire any
rights, either by his application to enter, or by his appeal.
The procedure in such eases ought to be:
1. That no application to make entry will be received by the local
DECISIONS RELATING TO THE PUBLIC LANDS. 87
officers during the time allowed for appeal from a jndgmeut of cancel-
lation of an entry 3 but in all such cases the land involved will not be
subject to entry or application to enter until the rights of the entryman
have been finally determined until which time no other rights, inchoate
or otherwise, can attach.
2. If during the time accorded a successful contestant to make entry
of the land involved an application or applications to enter should be
made by a stranger or strangers to the record, such application or
applications will be received and the time of presentation noted thereon,
but held to await the action of the contestant, and should such con-
testiint fail to exercise his preference right, or duly waive it, then such
application or applications must be acted upon and disposed of in
accordance with law and the rulings of the Department.
The only remaining question to be determined is, whether Cowles
acquired any rights under his application to enter, dated December
20, 1893.
At the time Cowles made his application to enter, Moore's relinquish-
ment was filed in the local land office. When said relinquishment was
filed, it took effect at once, so far as releasing the land covered by it
from the existing entry was concerned. McGall v. Molnar, 2 L. D., 265;
David J. Davis, 7 L. D., 560, 561 ; Dunn r. Shepherd et aZ., 10 L. D., 139.
Under Allen r. Price, and the instruction of March 30, 1893, it was
the duty of the local officers to have held Gowles's application during
the period allowed a successful contestant to exercise his preference
right of en try ^ therefore the action of the local officers in rejecting his
application and your office in affirming the judgment was erroneous.
Brady, the successful contestant, stated in his affidavit, dated Feb-
ruary 7, 1894, hereinbefore referred to, that he "is not now a qualified
entryman • . . and that he can not enter said tract," and that in
consideration of Huff paying the expenses of the contest, "affiant
agreed to assert no claim to said tract."
If these facts had been before the register and receiver at the time
Cowles made his application to enter, his entry should have been
allowed under Allen v. Price, and the departmental instructions there-
under, for they show: (1) that he was disqualified to make entry of the
tract, and therefore could not lawfully exercise the preference right
accorded a successful contestant; (2) that he relinquished his prefer-
ence right. In such cases the land is subject to entry by the first legal
applicant. In the case at bar, Cowles was such applicant.
Huff's entry was erroneously allowed by your office decision.
Your office decision appealed from is accordingly reversed. Huff's
entry will be canceled, and Cowles will be allowed to make entry of the
tract under his application of December 26, 1893.
The conclusion reached in the departmental decision of October 31,
1895, rendered in this case, is adhered to, but inasmuch as said decision
did not overrule the Ganger case, supray and give the reasons therefor,
it is hereby recalled, and this decision substituted therelor.
S8 DECISIONS RELATING TO THE PUBLIC LANDS.
TIMBER IiAXI>— APPLJCATION - PROTEST-PRACTICE.
Harris r. Belknap.
Prior to the issuance of final certificate under a timber land application the local
office has full jurisdiction to order a hearing on a protest, or adverse claim, filed
against such application.
An appeal will not lie from an interlocutory order of the local office made during the
progress of a hearing, and if the party adversely affected thereby withdraws from
the case, he is not entitled to have it remanded for further hearing even though
it may appear that the local office erred in its ruling.
Secretary Francis to the Commissuyner of the General Land Office, Jan-
(I. H. L.) mry 30, m)7. (R. W. H.)
It appears from the record iu this case that, on June 6, 1894, William
H. Belknap filed his sworn statement with his application to purchase
the laud iu question under the act of June 3, 1878, and notice by pub-
lication was given that his proof would be offered September 15, 1894.
September 14, 1894, Arthur Corning as agent for Wm. H. Carpenter,
filed a protest against the acceptance of Belknap-s final proof, all^^ging
that the land contains valuable deposits of coal asid is chiefiy valuable
therefor, and x)roposing, as such agent, to purchase the same under the
coal land act. On the following day, to wit, September 15, 1894, James
K. Nesbit filed a protest of similar purport — claiming that he had posses-
sion of the tract under the coal land law, and that Belku^ap was con-
spiring to secure the land for the benefit of others. On the same day
Belknap offered his proof, which was suspended by the local office
subject to action on said protests.
October 22, 1894, Burdette R. Harris made application to enter the
land as a homestead, at the same time filing a protest against the
allowance of Belknap's proof, alleging that the tract is practically
devoid of timber and only valuable for agriculture.
A hearing was ordered for December 5, 1894, at which Harris and
Belknap appeared in person and by counsel — Carpenter and Nesbit
making default. Harris made affidavit asking for a continuance of the
case for thirty days because of the absence of a material witness, one
Wm. Yantis, whose attendance at the hearing he had used due dili-
gence to procure, but without success. Upon Belknap's agreement,
however, to admit that the witness would, if present, testify to the
statement set out in the application for continuance, the local office,
under liule 22, denied the motion and proceeded with the hearing.
Harris did not support his protest by his own testimony, and intro-
duced only one witness, who testified that there were not more than
seven or eight acres of green timber on the forty acres in dispute, and
that it was all in a "burn". Be made no other examination of the soil
€)xcei>t "in digginer for coal along the hill side near the land." To the
DECISIONS RELATING TO THE PUBLIC LANDS. 89
question, on cross examination: ''Did you find any coal!" the witness
answered: "Yes, I did, I found coal on tbe south line that we run."
A' this stage the protestant rested, and the attorney for timber claim-
ant moved the dismissal of the protest on the ground that a prima fade
case had not been shown.
The register and receiver ruled that
if the ease proceeds tbe costs will be taxed to tbe protestaut, and if be does not
see fit to proceed with tbe co^e and pay tbe costs, and tbe timber land claimant
wants to introduce bis evidence and is willing; to pay his own costs it makes no
hardship on the protestant, and the case will proceed.
The homestead claimant (Harris) objected to any further proceeding
in the ca^e on the ground that as the timber land claimant (Belknap)
had interposed a demurrer, and said demurrer had been sustained,
that the case was closed so far as the jurisdiction of the local office was
concerned ; that its decision sustaining the demurrer was equivalent to
a decision on the merits, and that no further evidence could be consid-
ered, or proceedings had, until the protestant could secure a ruling of
the Commissioner upon the question of costs.
The local office adhered to its ruling, and Belknap thereupon pro-
tested against paying any of the costs, and moved that in the event of
the homestead claimant persisting in his refusal to pay the costs that
the whole proceeding be dismissed, and his timber land entry be made
a matter of record.
The case was proceeded with, Belknap and his witnesses giving in
their testimony, and the protestant declining to take farther part in the
hearing.
The local office considered the case on its merits, found that the land
is chiefly valuable for its timber, and that it is timber land in the mean-
ing and intent of the act of June 3, 1878, and recommended that Harris'
homestead application be rejected, his protest dismissed, and that Bel-
knap be permitted to make payment for and perfect his title to the land.
Toar office held that there was nothing in the record to show that
Harris gave notice of an appeal from the ruling of the local office in
the matter of costs, but as it was an interlocutory order, it was not of
itself the subject of an appeal, and furthermore there was nothing to
eliow that Harris was denied the privilege of cross-examining the
defendant's witnesses, as he had absented himself voluntarily.
Yon further held that it was not error under the circumstances to
allow Belknap to submit his testimony and to decide the case on its
merits. You accordingly affirmed the decision of the local office dismiss-
ing Harris' protest, and holding the sworn statement and application of
Belknap subject to final action in the case.
Harris' appeal to the Department makes but one assignment of error,
to wit:
'^ Error not to have remanded the case for further hearing/-
• Paragraphs 14 and 15, page 45, G. L. O. Circular (1895), prescribes
90 DECISIOISS RELATING TO THE PUBLIC LANDS.
tbe mode of procedure under the timber and stone act of June 3, 1878,
as follows :
14. When au adverse claim, or any protest against accepting proof or allowing an
entry, is filed before final certificate has been issued, the register and receiver will
at once order a hearing, and will allow no entry until after their written determina-
tion npon said hearing has been rendered. They will report their final action in aU
protest and contest cai»cs and transmit the papers to this office.
15. After certificate has been issued, contest, applications, and protests will be
submitted to this office as in other cases of contest after final entry.
It will thus be seen that the jurisdiction of the local office is complete
as to all matters arising at hearings under the timber and stone act
until certificate has been issued, after which, contest, applications, and
protests are to be submitted to your office as in other cases of contest
after final entry.
The ruling of the local office upon the question of costs being made
in the progress of the hearing, was interlocutory, and not subject to
appeal, it matters not whether the ruling was erroneous or not. No
right of the protestant was denied. Its exercise was only coupled with
the condition that he should pay all the costs as in hearings under Rule
64. This he refused to do and withdrew from the case, after giving
notice of appeal. It would seem, therefore, if his interests were in any
wise prejudiced, that it was the result of his own premature action.
While your office did not concur in the ruling of the local office that
the protestant should pay all the costs of the hearing as in regular
contest cases under the act of May 14, 1880, it was held not to be error
under the circumstances to allow Belknap to submit his testimony, and
to decide the case ui)on its merits, inasmuch as there was <^ nothing in
the record to indicate that Harris was denied the privilege of cross-
examining the witness introduced by Belknap," and * in his brief did
not claim that he was denied this privilege, but stated, after it was
ruled that he should pay all the costs, he ^' gave notice of appeal and
did not appear further in the case," clearly showing that he absented
himself voluntarily.'
In deciding that the hearing should have been held under Rule 55,
instead of Rule 54, you have afforded Harris the only relief of which
the case admits. It was entirely within the jurisdiction of your office
for decision upon its merits as it came from the local office, and there
was no error in your refusal to remand the case for further hearing.
Your office decision is therefore affirmed.
DECISIONS RELATING TO THE PUBLIC LANDS. 91
ADDITIONAL HOMESTEAD— ACT OF FEBRUARY lO, 18»4.
Elbert Hurst.
The special right to enter additional lands conferred by the act of February 10, 1894,
when snch additional lands become sabject to entry, is defeated by a prior selec-
iion of the Innd as school indemnity under the provisions of the act of March
2, 1895.
Secretary Franda to the Commissumer of the* General Land Office^ Jan-
(L H. L.) tiary 30, 1897. (C. J. G.)
Elbert Hurst has appealed from year office decisiou of September 20,
1895y sustainiag the action of the local office in rejecting his homestead
application made July 3, 1895, for the N. J of the SE. J, Sec. 8, T. 4 N,,
E. 3 E., Indian Meridian, Guthrie land district, Oklahoma.
The basis for said action was that the land is embraced in Oklahoma
clear list No. 6, school indemnity lauds, approved May 17, 1895, aud
therefore not subject to homestead entry.
On October 22, 1891, the appellant made original homestead entry
for that part of the NE. i of Sec. 8, T. 14 N., R. 2 E., lying north or on
the left bank of the Deep Fork river. He claims the right to make
homestead entry of the land in question by virtue of the act of Con-
gress approved February 10, 1894 (28 Stat., 37). That act provides as
follows:
That every homestead settler on the public lands on the left bank of the Deep
Fork river in the former Iowa reservation, in the Territory of Oklahoma, who
entered less than one hundred and sixty acres of land, may enter, under the home-
stead laws, other lands at^^oinlng the lands embraced in his original entry when such
additional lands become subject to entry, which additional entry shall not, with the
lands originally entered, exceed in the aggregate one hundred and sixty acres.
The record shows that the land in question is situated on the right
bank of the Deep Fork river, and was included in the Kickapoo reser-
vation. The act of Congress approved Mar<;h 2, 1895 (28 Stat., 899),
gave the Territory of Oklahoma the right to select school indemnity
lands in this reservation. That act provides as follows :
That any State or Territory entitled to indemnity school lauds or entitled to select
lands for edncational purposes under existing law may select such lands within
the boundaries of any Indian reservation in such State or Territory from the sur-
pins lands thereof, purchased by the United States after allotments have been made
to the Indians of such reservation, and prior to the opening of such reservation to
settlement.
The instructions of May 18, 1895 (20 L. D., 470), issued in connection
with the proclamation of the President opening the Kickapoo Indian
lands to settlement, contains this language:
It mast be remembered that, while the parties coming under "the provisions of the
said act of February 10, 1894, are permitted the privilege of making an additional
entrjy based on the original entry theretofore made by them, there is no provision
permitting the reservation of any particular tracts for their benefit, and, therefore,
their claims to any lands under snid statute will rest upon a priority of initiation as
iu other cases.
92 DECISIONS BELATING TO THE PUBLIC LANDS.
The proclamation of the President opening the KickaixK) Reserva-
tion to settlement (20 L. I)., 473), contains this language:
The lands to be so opened to settlement are for greater convenience particularly
described in the accompanying schedule, entitled *'Schedtile of lands within the
Kickapoo Reservatiqn, Oklahoma Territory, to be opened to settlement by procla-
mation of the President," but notice is hereby given that should any of the lands
described in the accompanying schedule be properly selected by the Territory of
Oklahoma under and in accordance with the provisions of said act of Congress
approved March second, eighteen hundred and ninety-five, prior to the time herein
fixed for the opening of said lands to settlement such tracts will not be subject to
settlement or entry.
As previously shown, the act of February 10, 1894, gave settlers on
the left bank of the Deep Fork river, who entered less than one
hundred and sixty acres, the privilege of an additional entry " when
such additional lands become subject to entry." The act of March 2,
1895, gave the Territory of Oklahoma the right to select indemnity
school lands in the Kickapoo reservation prior to the opening of such
reservation to settlement. The date of the President's proclamation
opening said reservation to settlement was May 18, 1895. The date of
approval by the Department of the selection of the laud in question by
the Territory of Oklahoma ns school indemnity, was May 17, 1895.
The date of appellant's application is July 3, 1895, and was properly
rejected for the reason that under the statute the right of the Territory
was initiated prior to that of the appellant.
Your office decision is hereby affirmed.
- OKXtAHOMA LAXDS— QFALIFICATIOXS OF SETTL.ER-SETTL.EME T.
Hensley r. Waneb.
The fact that at the date of the act opening the Pottawattomie country to settlement
and entry, a person is then within said country and occupying land under an
unapproved lease, will not in itself xlisqnalify him as a claimant for lands so
opened for settlement; nor will his subsequent presence in such territory operate
as a disqualification where he acquires no additional information as to the land
settled upon, and in obedience to the President's proclamation he leaves said
territory and remains outside the boundary until the hour of opening.
A settler on lands opened to disposition by said act is not disqualified by making
the "run " on the day of opening from an adjacent Indian reservation.
The conditions attendant upon opening lands to settlement in Oklahoma re<|uire the
recognition of extremely slight acts of settlement in determining priorities
between adverse claimants.
Secretary Francis to the Commissioner of the General Land Office^ Jan
(I. H. L.) nary 30, 1897. (J. L. McC.)
I have considered the case of Elbert S. Hensley r. John Waner,
involving tlie'homestead entry made by the latter for the ITW. \ of Sec.
27, T. 12 N., R. 1 E., Oklahoma land district, Oklahoma Territory.
The land was embraced in the former Pottawattomie Indian reserva-
DECISIONS RELATING TO THE PUBLIC LANDS. 93
tion, but was purchased from that tribe, aud by act of March 3, 1891,
directed to be opened to settlement and entry. An executive procla-
mation to carry said act into eff'ect was issued September 18, 1891; and
the land was so opened to settlement aud entry on September 22, 1891.
The particular tract in controversy had at some previous time been the
allotment of an Indian named '^ High," but said allotment had been
canceled, and the land restored to the public domain.
John Waner made entry of the tract in controversy on September 26,
1891.
On November 14, 1891, Elbert S. Hensley applied to make homestead
entry of the tract; but his application was rejected because of the prior
entry of Waner. He alleged settlement prior to entry or settlementby
Waner, whereupon a hearing was ordered and had, commencing July
25, and continuing until August 22, 1894.
From the voluminous testimony taken the local officers found in favor
of Waner.
Hensley appealed to your office; which, on October 12, 1896, reversed
the decision of the local officers, and held Waner's entry subject to
Hensley's superior right.
Waner has api)ealed to the Department.
In the arguments filed upon appeal, a number of questions are pre-
sented, to which no reference is made either in the decision of the
local officers or of your office, some of which are new and deserving of
consideration.
Hensley had resided and leased farms from different parties in the
Indian Territory for years prior to the passage of the act of March 3,
1891; first in the Chickasaw country; afterwards, upon invitation of
his brother, he came to the Pottawattomie country, and the two took a
lease jointly of the allotment of one Daniels. This was some time in
the last week of 1890. From that date until he went out of the terri-
tory preparatory to *' making the run" back into it (with one exception,
to be noted hereafter), Hensley, with his wife and five children, occu-
pied said Daniels allotment.
The Department has held that
<me wbo is rightfully within the territory during the prohibited period, but goes
outside prior to the hour of opening, aud gains no advantage over others by his
presence in the territory during the prohibited period, is not by such presence dis-
qualified as an entryman (Metz r. Seely, syllabus, 21 L. D., 148).
But counsel for Waner contend that the above ruling can not apply
to Hensley, inasmuch as he was wrongfully within the territory; that
the leasing of an allotment from a Pottawattomie Indian was in viola-
tion of law; in support of which they copy a letter from the then act-
ing Commissioner of Indian Affairs to one George L. Young, at Sacred
Heart, O. T., dated April 2, 1891, which says:
In reply to your communication dated March 16, 1891, you are advised that the
leasing of lands by members of the Citizen band of Pottawattomics 'is illegal and
94 BECI8IOKS RELATING TO THE PUBLIC LANDS.
void, and that parties xvithin the reservation under such pretended leases liave no
rights whatever on the reservation. The allotments have not been approved, and
the allottees as yet have no title to the land. Prior to the passage of the act of
February 28, 1891, an allottee or patentee had no right to lease his land for any
purpose.
It may be true that there was no departmental approval of the lease
from the Indian, Daniels, to Hensley. Bat if there were not, what
penalty could properly and legally be inflicted upou Hensley f Simply
removal from such reservation, as an intruder. But if the passage of
the act found within the limits of the territory opened to settlement by
it, a person residing, or farming, or engaged in business, without the
written permission of the Department, does that fact forever disqualify
such person irom acquiring title to land within such territory f I find
no statute imposing such penalty; and it appears to me improper,
unjust, and unwarranted to give so broad a construction to the probi.
bition contained in the act in question. The Department in its recent
decision in the case of Brady v. Williams (although that case is not in
all respects the exact parallel of the one here under consideration), enun-
ciates a ruling equally ap])licable to Hensley — to- wit: that even if a
settler on an Indian reservation, under a lease that had not received
the affirmative sanction of the Department, <^were guilty of a crime
either against the United States or the Indians, he would not" thereby
<< be disqualified from availing himself of the right to make a homestead
entry '^ (23 L. D., 633-537).
In my opinion, therefore, the fact that at the date of the passage of
the act of March 3, 1891, Hensley was found in the Pottawattomie
country, occupying land under a lease that had not been approved by
this Department, would not^ per se^ disqualify him from acquiring land
in the territory then and thereby opened to settlement and entry.
Counsel for Waner contend that, whether or not Hensley was right-
fully in the country prior to March 3, 1891, he certainly was not after
that date — in view of the fact that the prohibition against going into
the territory began to run at the date of the passage of the law. Fur-
thermore, that Hensley was ordered out of the territory, and left it —
but returned, without legal authority to do so. In support of this con-
tention they introduce a copy of a letter of instructions from Mr. Secre-
tary Noble to the Commissioner of Indian Affairs, dated March 30, 1891
(twenty-seven days after the passage of the act). That letter said (inter
alia) :
It is reported by the governor of Oklahoma that large numbers of persons are
invading the recently purchased laud from the Sac and Fox, Cheyenne aud Arapa-
hoes, and others, with a view to gaining an undue advantage in the selection of
homesteads, etc. ; and I have to call your attention to the necessity of excluding
them by whatever degree of force it may be necessary to obtain iVom the army for
that purpose .... Not only should those intruding be peremptorily removed, but
all private stakes or monuments, or other indications of possession that they may
endeavor to establish should also be destroyed.
DECISIONS RELATING TO THE PUBLIC LANDS. 95
The Commissioner of Indian Affairs issued instructions to Indian
Agents in the vicinity of the lands above named, directing them to
carry out the above order.
But the question arises as to whether the above order was aimed at
Hensley, or persons in his position. It would not on its face appear
to do so, unless he was "invading" the land "with a view to gaining
an undue advantage in the selection of homesteads, etc." — which is a
question that will be inquired into hereafter; and it is not alleged by
anybody that he was establishing "private stakes, or monuments, or
other indications of possession."
Whether this order was intended for him or not, Ilensley in some
way became acquainted with the substance thereof, and did move out,
with his family; but about a fortnight afterward returned.
Counsel for Waner contend that he returned without authority.
When Hensley lefb the territory he went out into what was commonly
known as "Old Oklahoma," that had been opened to settlement and
entry in 1889, and camped upon the "ranch" of a friend named Powers,
At the hearing Powers testified :
Mr. Hensley camped on my place for abont two weeks ; lie had been ordered out
of the Pottawattomie country, be said; be then went back to finish up bis crops; it
was the general understanding among the people that they hnd received permission
to retnm and take care of their crops.
The testimony of J. W. Daniels, from whom Hensley leased the allot-
ment, will throw some further light upon this branch of the case:
As I understand the matter, there was an order issued notifying all white people
that wanted homes there, to leave the reservation ; that was about tbe last of ^lay
or the first of June — I wouldn't be authentic In regard to tbe time. I remember well
that Hensley did move his family and himself out of said reservation. The Potta-
wattomie Indians made complaint to the Department that they would be serlonsly
damaged by removing the renters from said Indian lands. John Andersoju, and
others, told me that the order had been rescinded, and that the renters could return
and cultivate their crops. It was a question that concerned me considerable; and
Mr. Ontcelt told me that an order would be made that they could go back, and then
they would be told when to go out again.
George W. Outcelt, a merchant of Choctaw City, testified :
A number of persons holding leases had moved out of the Pottawattomie country
and were camped at Choctaw City and around there. I talked with Judge Harvey
in regard to the matter, and we both thought it was a great inconvenience and
wrong to the settlers to force them to leave their lands and crops. I wrote to Col.
Patrick, the Indian Agent, in reference to the matter, and told him the situation ;
and he told me that the order was not intended to compel tenanU to leave the Potta-
wattomie country or their homes, and to tell them to go back. I told Mr. Hensley,
and a number of others, that Col. Patrick had instructed me to tell them tbev could
go back to their homes Col. Patrick told me this personally, at my
store; he explained that the order of expulsion was intended only for three or four
persons, who had made themselves objectionable, and was given to an Indian
policeman, who, not understanding the matter, had served the order on all parties.
He said that his understanding was that, before the opening, all parties would have
sufficient notice to enable them to get out in time.
96 DECISIONS RELATING TO THE PUBLIC LANDS.
On September 18, 1891 — four days before the land in controversy was
opened to settlement — the President issued the following proclamation
(27 Stat., page 992, last six lines) :
Notice, moreover, is hereby given that it is by law enacted that until said lands
are opened to settlement by proclamation, no person shall be permitted to enter
npon and occnpy the same; and no person violating this provision shall be permitted
to enter any said lands, or acquire any right thereto.
This proclamation came to witness Daniels' knowledge on the day of
its date — he being at the time in Oklahoma City. Daniels expbiins
how it was brought to Hensley's knowledge:
I was in Oklahoma City. Knowing Mr. Hensley to be a very poor man, and culU-
yating my place under a leacte, I was anxious to see him get a home for himself and
family. Biding home some time between 9 and 10 o'clock at night, accompanied by
John Clinton, I remarked to Clinton tliat I had given the Hensley Brothers a lease
of said place, and that as the president had declared said reservation opened so very
unexpectedly, and being fully satisfied that said brothers had not come Into posaeS'
slon of the fact, I thought it would be nothiug more than right that wo shoald
drive around and notify them that the proclamation had been made. . . . He
(Hensley), being a poor man, got my horses, and moved out of there about
midnight.
Hensley and his family went again to the ranch of his friend Powers,
on the border of <^01d Oklahoma,-^' and there remained until the morn-
ing of the day of the opening.
The local officers decided against Hensley on two points, one of
which was:
We can not dispute the conclusion, from all the evidence, that Hensley knew this
tract in dispute, and that, in a general way at least, he had an advantage over other
homeseekers by reason of his stay in this reservation.
The Department has frequently held, as expressed in the syllabus to
the decision in the case of Monroe et al. r, Taylor (21 L. D,, 284) :
Knowledge of lands within the territory, acquired by presence therein prior to
the passage of the act, .... can not disqualify a settler who subsequently com-
plies with the prohibitive terms of said act.
In view of this ruling, the mere fact that a person, ^^ in a general way,"
some time or other, learned something about a tract of land, is not
sufficient reason for holding him disqualified. It must apjiear that such
information was acquired subsequently to the passage of the act.
Upon this point the decision of your office is specific: .
It does not appear that Hensley gained any advantage by his presence in the ter-
ritory during the prohibited period. It is true he resided within a mile and a half
of the land he now seeks to enter. It is also true that he had abundant opportunity
to gain a knowledge of the land before the date of the act opening the country to
settlement, March 3, 1891 ; and his residence within the country after that period
did not, I think, give him any additional information.
An attempt was made at the hearing to show that Hensley had an
opportunity to obtain <^ additional information.'' He worked one day,
in the summer of 1891, for a man named Fausler, hauling to market
DECISIONS RELATING TO THE PUBLIC LANDS. 97
some hay tliat Fanslcr had cnt apon the tract iu controversy, and
stacked (with other hay) near his (Fansler's) hoase. Fansler testifies
that the land in controversy was " in plain view " from his honse, and
that " there was nothing to prevent him " (Hensley) " from looking at
it." This is the sum total of the proof tending to show that Hensley
learned an3rthing additional regarding the tract after March 3, 1891.
Counsel for Waner si>ecifies as one thing that Hensley learned while
upon the reservation during the prohibited period, that the allotment
for the land in controversy was fraudulent. But regarding this Hens-
ley testifies:
The day before the opening, I learned, on the line there, that the soldiers had
declarefl that what was oaUed the " High allotment '' was a frand, and that it was
then opened up as public domain.
Inasmuch as Hensley, ^< the day before the opening," was not in the
Pottawattomie country, but in the Old Oklahoma country, it appears
that the information obtained by him that the allotment was a fraud,
was received by him while outside the Pottawattomie reservation,
I concur with your office in its finding that there is nothing in the
testimony to indicate that Hensley gained any additional information
regarding the land because of his presence in the territory after the
passage of the act opening it to settlement and entry.
On the morning of March 3, 1891, Hensley started from the point in
*^01d Oklahoma," where he had been for three days camped upon the
ranch of his friend Powers, and, going eastwardly, crossed the line
into the Kickapoo Indian Eeservation. He traveled through this a
distance of about twelve miles, until he reached a point on the north
bank of the North Fork of the Canadian river, as near the land in
controversy as he could get and yet be outside of the prohibited terri-
tory. The question arises, does the fact that Heusley started from the
Kickapoo country to make the run for the land in controversy, dis-
qualify him from acquiring the land!
Some suggestive light may be thrown upon this question by reference
to the departmental decision in the case of Brady v. Williams (23 L. D.,
533, 9upra). That case arose upon the opening of the Cherokee Outlet,
September 16, 1893. In that case the President's proclamation (August
19, 1893,) contained a proviso for a strip of land one hundred feet in
width along the outer boundary of the counti^ then opened, "open to
occupancy in advance of the day and hour named for the opening of
said country, by persons expecting and intending to make settlement"
of said Cherokee lands. But this one-hundred-foot strip proviso in no
way invalidates the argument regarding the right of an intending
settler to start from the margin of an Indian reservation that had not
yet been opened to settlement and entry. In that decision the Secre-
tary said:
It must be asnnmed that it was known to the President and the Secretary of the
Interior, at the time the proclamation was promulgated, that the Indian reaervationa
10671— vol. 24 7
S8 DECISIONS RELATING TO THE PUBLIC LANDS.
<l»f the Kansas, the Osages, the Poncas, and the Otoes and Missoarias, immediately
joined the Ontlot on the east; yet there is n6 inhibition in the proclamation from
.settlers entering from those reservations.
In the case at bar, it must be assumed that the President and the
'Secretary of the Interior knew that the Kickapoo Indian reservation
immediately joined the Pottawattomie reservation on the north; yet
4;here is no inhibition in the proclamation from settlers entering firom
4;hat reservation.
JLgain, the decision in the Brady- Williams C£tee says:
The only theory upon whieh the Secretary of the Interior could possibly prerent
persons from making the run from these Indian reservations was that, under the
laws and treaties with the tribesy white people were not allowed therein, and were
trespassers, and could be forcibly and summarily ejected aa such. But .... if
they passed through the Indian reservations, and got on to the on%-hundred-foot
•trip, and made the run from there in good faith, should they be deprived of their
liomestead rights f I find myself unable to yield assent to such a proposition. If
the settler were guilty of a crime against the United States, or the Indiana, he
'would not be disqualified from availing himself of the right to make a homestead
«ntry.
In view of the above ruling in the Brady- Williams case, I must hold
that in the case at bar the fact that Hensley started from the Kickapoo
Indian reservation did not disqualify him from acquiring land in the
former Pottawattomie reservation when it was opened to settlement
.jbnd entry.
Hensley does not deny that he had the High allotment in view when
lie started from the Kickapoo country at noon of September 22, 1891 —
baving that morning, while yet in the '* Old Pottawattomie'' country,
learned from certain soldiers 'that said .allotment had been declared
^auduleut and invalid, and the laud restored to the public domain.
He does not deny, but acknowledges, that he sought a starting point as
near said tract as possible, and yet be outside the prohibited territory.
The route, after crossing the river (the Korth Fork of the Canadian)
was steep and through timber for a short distance — about a quarter of
a mile. The following is his own story of the run — omitting questions;
The horse I rode was a good horse— fast ; he made the winning on the Oklahoma
race track on the Fourth of July; I rode him just as fast as he could run; I got him
lieaded in the direction and let him run; I lost my hat and blanket and one of my
«tirrups ; the stirrup was torn off early in the race, by the horse running too close
Against a tree; when I reached the claim I jumped off the horse; as quick as I got
•off I saw parties coming from different directions; so I got back into the saddle and
craved my flag over my head to the people coming in ; I thought they could see the
Hag better with me on the horse than if I stood upon the ground.
An attempt is made to show that Hensley must have started from
-the Kickapoo line before noon, in order to reach the land in controversy
before any of his competitors did. The principal reliance in support
of this contention is the testimony of witness Ivy, who said of Hensley:
^<He was iu there a minute or two before the other parties came^ I don't
Jcnow whether they were slow or he was fast." But this testimony
DECISIONS BELATINQ TO THE PUBLIC LAXD& 99
mast be oonstraed in connection with that previoasly given by the
same witness:
A while before noon I had crossed the river into the Pottawattomie country;
.... I wasn't on the line when the rest of the people made the run ; . . • . The
first 1 8 i w of Hensley he was coming on a rnn a quarter of a mile west of the claim,
or about that.
So this witness, after all, does not say that Hensley was in the pro-
hibited territory a minute or two before the other parties; bnt that he
arrived "there" — where the witness was, nearly a mile inside the line —
"a minute or two before the other parties came": which is precisely
what Hensley himself asserts. After a careful examination of all the
testimony bearing upon this branch of the question, I concur in the
finding of the local officers, who say:
Eridence "was also introduced tending to show that Hensley could not have
leached the tract afc the time he said he did without having started from the Kicka-
poo line prior to the noon hour. We do not think the evidence sufficient to find
against him on that point.
Upon the question of fact as to whether Hensley made settlement
on the land prior to the date of Waner's entry, the local officers found:
It is questionable whether the settlement he made, and his acts subsequent to his
going on the land on September 22, are sufficient to hold in his favor on the ground
of prior settlement.
In considering this branch of the matter it should be remembered
that
the Gonditions attendant upon the opening of Oklahoma to settlement require the
recognition of extremely slight initial acts of settlement in determining priorities
between adverse claimants, if such primary acts are followed by residence within
such time as clearly show good faith (Penwell v. Christian, syllabus, 23 L. D., 10).
Hensley slept upon the ground the night after the opening — ^under a
wagon-sheet. He testifies that the next day, September 23, he plowed
about a quarter of an acre. He began the foundation of a house before
the date of Waner's entry (September 26, supra)^ which he afterward
finished, and he and his family moved into it about the first of Novem-
ber, and has ever since resided there, with his wife and five children.
Waner, the entryman, testifies that on the 24th of September, 1891,
when he first saw the land, he did not notice any plowing or other
improvements. To one (][uestion addressed to him on cross-examination
he made a peculiarly evasive answer:
Q. Did you not tell me in my office, here in Oklahoma City, in the fall of 1891, that
you knew Mr. Hensley was the prior settler on this tract of land, but that he couldn't
hold it, because he had been leasing land, and was a sooner f — ^A. I said he was a
sooner, and that I believed I could prove every word of it at the trial.
Witness Kay testified that about September 24, or 25 — he is positive
that it was before the 26 (the date of Waner's entry) — he "saw a little
patch of breaking done, and a log foundation laid."
100 DECISIONS RELATING TO THE PUBLIC LANDS.
The decision of your oflBce, appealed from, fiuds thutHensley, "being
the prior settler on the land, had the superior right thereto."
For the reasons hereinbefore given, I concur in the conclusion that
Hensley acquired a superior right to the laud in controversyi and there-
fore affirm said decision.
DBS£BT LAKD £NTBT— AXIBNATIOir.
Whbaton V. Wallace.
An agreement hy » desert land entryman to convey title to the land alter tiie anb*
mission of final proof, wlU not operate to defeat the entry, where said agreement
was entered into after the passage of the amendatory act of March 3, 1891, whieh
recognizes the right of assignment in the entryman, and where the initial entry
appears to have been made in good faith.
An agreement by a desert entryman, made subsequent to the initial entry, to convey
title to the water supply after the submission of final proof , is not ground for
cancellation, if it anpears that such agreement was afterwards, and prior to
final proof, repudiated.
Secretary Francis to the Commissioner of the General Land Office^ Jan-
(I. H. L.) uary 30j 1897. (O. J. W.)
The land involved herein is the 8W. J NB. J, S. J NW. J, K ^ SW. J
and the SB. J SW. J section 26, and the NE. | NW. J and N W. J NE. J
of section 35, T. 6 S., B. 32 E., M. D. M., Independence, California, land
district.
The records of your office show that on May 4, 1888, Bion Samuel
Wallace made desert land entry for said tract, together with one hun-
dred and twenty acres of adjoining land, and that on February 10, 1891,
shortly before the expiration of the time within which he was by law
required to make final proof, he relinquished his entry, whereupon on
the same day Daniel T. Wallace made desert land entry for the tract
now in controversy, being three hundred and twenty acres.
September 13, 1893, the local officers issued notice of Wallace's inten-
tion to offer final proof on October 28, 1893. At the appointed time
Wallace appeared with Samuel B. Wallace and J. H. Jackson, two of
the witnesses named in his final proof notice. At the same time
appeared Wesley J. Wheaton, and filed an affidavit of protest against
the final proof on the following grounds :
1. That said Daniel T. Wallace does not own, nor have a clear right to the nse of
BuflScient water to irrigate said laud and to keep it permanently irrigated.
2. That the reclamation of said land has been effected by the use of water owned
and controlled by another party, and not by the use of any water owned by this
claimant.
That the said entry of Daniel T. Wallace is fraudulent and illegal in this, to* wit:
That at the time said entry was made the said claimant made and entered into a
contract by which he agreed to obtain title to said lands for another party, and that
said entry was made for speculative purposes and not made in good faith.
3. That no water owned by this claimant has ever been oonduoted npon said land
M required by law, or at all.
DECISIONS RELA'IIXG TO THE PUBLIC LANDS. 101
Tbereupoii cu motion of Daniel T. Wallace the case was continued
until October 30, 1893. On that day Wallace filed an affidavit as
follows:
Dauiel T. Wallace being first daly sworn, deposes and says; My name is Daniel T.
Wallace, and I am the identical person who on tbe lOth day of February, 1891, made
desert land entry No. 619, at the U. S. Land Office at Independence, California,
whieh said entry embraces the [description of land in controTersy].
That affiant never tiled or caused to be filed in the U. 8. Land Office at Independ-
ence, Oal., any notice of his intention to make final proof of the reclamation of said
tract of land; that affiant never signed any such notice nor caused the same to be
signed, and that such notice bearing affiant's signature thereto was signed by some
person other than affiant and without affiant's authority or i>ermi8sion.
That affiant received no notice or information of the time or place of making final
proof herein until the 20th day of October, 1893, on which day affiant received a
letter from S. B. Wallace, dated and postmarked at Bishop, Cal., and addressed to
affiant at " Midas, Nev./' which last mentioned place is more than two hundred miles
from the U. S. Land Office at Independence, California; That affiant received said
letter at his ranch, which is twenty-five miles further from said land office than the
distance above stated.
That affiant is not now prepared to make said final proof, nor to prove the recla-
mation of said tract of land, and therefore prays that all proceedings heretofore
had as to said final proof herein, be dismissed until such time as the same may be
made after legal notice by affiant and claimant herein.
Wlieaton filed an affidavit protesting against allowing the entryman
to make proof at any other time, and alleging that Daniel T. Wallace
and Samuel B. Wallace on May 31, 1893, entered into a written agree-
ment, by the terms of which Daniel T. Wallace was to make final proof
and receive final certificate for the benefit of Samuel B. Wallace.
Tbe affidavit was accompanied by a copy of the alleged agreement.
Wheaton also on the same day, but at different hours, filed two affi-
davits executed that day by Samuel B. Wallace.
In the first he states that he was the authorized agent of Daniel T.
Wallace in Inyo cottnty. That S. B. Wallace and D. T. Wallace
entered into an agreement by which S. B. Wallace was authorized to
do all necessary things preparatory for the submission of final proof
for the lands embraced in D. E. No. 619, so that D. T. Wallace could
come from his home in Nevada and make final proof without delay.
That the copy of the agreement attached to the affidavit of Wesley J.
Wheaton is a correct copy of the original agreement. That at the
instance of D. T. Wallace said S. B. Wallace caused notice of said
final proof to be published, said proof to be submitted on October 28,
1893. That D. T. Wallace appeared with his witnesses at the time
named, but when confronted with a protest refused to proceed with his
final proof.
In the second affidavit he states that on said 28th day of October,
1893, D. T. Wallace did not even have the right to the use of sufficient
water to irrigate said land, and does not now own or have such water
or water-right, and that the water conducted upon the land belonged
to affiant. That after the water had been run upon the premises.
I
102 DECISIONS RELATING TO THE PUBLIC LANDS.
affiant transferred to said Daniel certain stock in the Owens Biver
Canal Company, and that said Duniel T. Wallace gave him bond and
security for the return of said stock, after making his final proof.
The following letter in reference to the agreement is in evidence:
Austin, Nbv., September the 18th, 1S9S.
Mr. Biox Wallace, BUhop.
Sir: I have been waiting for some time expecting to hear from yon in regard to
proving up on that laud. I am ready at any time to come down and do my part
towards it, and would like to know whether you have got the land in shape so that
it can be proved np on or not, and what yon intend to do in regard to it. Yon kno^r
that the agreement was that it should be ready in August for me to do my share.
Now, sir, I either want you to be ready soon for me to prove up on it, or else send me
part of the money that is coming to me on it, so that I will know that you iuteud to
keep your agreement with me in regard to it. Now let me heiir from you in regard
to it soon, for If I don't I shall have to come down there and see what I can do in
regard to it mysel£ .
Yours in haste, (Signed) D. T. Wallack.
Wheaton also on October 30, 1893, filed an nncoi roborated affidavit
of contest against the entry, alleging on information and belief
that the said Daniel T. Wallace at or before the date of said filing upon said litndt
made and entered into an agreement for the sale of said lands as soon as he obtained
patent therefor, and that said entry was not made in good faith bnt was made and
is now held for speculative purposes.
The local officers on November 11, 1893, granted the entryman's
request to dismiss the proceedings in regard to the submission of final
proof, and dismissed the protest on the holding that the entryman may
offer final proof at any time within the lifetime of the entry. Wheaton
appealed from said decision to your office.
During the pendency of the appeal the entryman, on December 20,
1893, gave notice of intention to make final proof, whereupon the local
officers set February 5, 1894, as the date for receiving proof. At the
appointed time the entryman appeared and submitted his proof, con-
sisting of the testimony of himself and John Schober and William 6.
Dixon, two of the witnesses named in his notice to make proof, and the
certificate of said William G. Dixon, as secretary of said Owens River
Canal Company, to the effect that the entryman is the owner of sixteen
shares of the capital stock of the Owens River Canal Company, enti-
tling him to the use of one hundred and sixty inches of water measured
under a four inch pressure from the canal of said company. Wheaton
also appeared and protested against the reception of the final proof,
but did not cross-examine the entryman and his witnesses, although he
was advised by the local officers of his right of cross-examination*
Wallace offered to make payment for the land, but the local officers
refused to receive the money, and on the same day reported the facts
to your office, stating that they will hold the final proof to await the
disposition of contestant's appeal from their office decision of ITovember
11, 1893, dismissing his former protest, and also to await the determi-
DECISIONS RELATING TO THE PUBLIC LANDS. 10$
nation of the contest, slioald a bearing be ordered on the contest affi-'
davit filed by Wheaton, October 30, 1893. April 21, 1894, your office
considered Wheatuu's appeal^ and affirmed the decision of the local
officers dismissing his protest, and also affirmed their action of Febra*
ary 5, 1894, holding the entryman's final proof subject to the contest
proceedings. No comment was made in said decision on Wheaton'»
failure to cross examine the entrymau and his final proof witnesses and
to folly present bis case at the time of the submission of the final proof.
The decision directed the local officers to allow Wheaton to proceed
against the entry on his affidavit of contest of October 30, 1893, if they
consider the allegations sufficient.
Jnne 28, 1894, Wheaton filed an amended affidavit of contest alleging-
that the said entry is fraudulent and iUegal because the said Daniel T. Wallace at
or before the date of the said tiliug upon said land, made and entered into an agree*
meot for the sale of said land as soon as he should obtain patent therefor; that said
entry was not made in good faith bnt was made in the interest of another party, and
is now held for speculative purposes.
This affidavit was corroborated by Samuel B. Wallace.
September 14, 1894, the local officers issued notice of contest set-
ting the hearing for October 30, 1894. After several continuances had
upon the agreement of the parties the case went to trial December 15^
1894. The contestant introduced only one witness, Samuel B. Wallace,
to prove his allegations against the validity of the entry, while th&
defendant offered no testimony at all.
Samuel B. Wallace testified that on May 4, 1888, he made desert
land entry for the tract in controversy together with one hundred and
twenty acres of adjoining land under the name of Bion S. Wallace,
and that on February 10, 1891, shortly before the expiration of tha
time within which he was by law required to make final proof he relin-
quished his entry for the reason that he had been unable to obtain
water to irrigate the land; that prior to his relinquishment he induced
Daniel T. Wallace to agree to make entry for the laud immediately
upon his relinquishment; that he went to the land office in company*
with Daniel T. Wallace and filed his relinquishment and furnished the
money to pay the land office fees for Daniel T. Wallace's entry. Ha
further testified on direct examination that he had an understandings
with Daniel T. Wallace at the date of the entry that he was to receive
one-half of the land after final proof, for which he was to give hi»
nine shares of stock in the Owens Eiver Canal Company, but that this-
understanding was never reduced to writing, and that in 1893, he
entered into a written agreement with the entrymau by the terms of
which he was to do all the work required by law to be done on the
laud, and to pay for advertising the final proof notice, and to pay
•780 after final proof for a title to all of the land. On cross-examiua*
tion, he contradicted his statement that he had had an understanding
with Daniel T. Wallace at the date of the entry for the conveyance of
104 DECISIONS RELATING TO THE PUBLIC LANDS.
one half of the land, and testified that he did not hate such an under-
standing until after the entry was made. He further testified that he
did the work required to be done on the laud and paid for advertising
first final proof notice; that he, on October 28, 1893, or a few days
before that date, transferred to Daniel T. Wallace nine shares of stock
in the Owens Eiver Oaiial Company, but that he took a bond from
th('. eutryman for a reconveyance of the stock and that the transfer
was not made in good faith, but solely for the purpose of enabling the
entryman to make a satisfactory showing on final proof that he had a
right to sufficient water to irrigate the land; that Daniel T. Wallace
reconveyed the stock to him about December 3, 1893; that he did not
induce Wheaton to bring the contest, but that he expected to acquire
title to the laud under his written agreement with the entryman, and
that he had the money ($320) ready to make final payment to the local
officers in case the final proof should be accepted. No copy of the
contract alleged to have been entered into between the witness and
the entryman on May 31, 1893, was ojQTered in evidence, but on January
9, 1895, after the hearing had been closed, the contestant without
notice to the entryman filed a certified copy of the complaint in an
action brought by D. T. Wallace against S. B. Wallace in the district
court for the State of Nevada in and for the county of Lander, to
recover damages for the breach of the alleged contract, which is set
out in the complaint.
February 23, 1895, the local officers rendered decision as follows,
after making a statement of the facts:
From the testimony presented it appears that the said Daniel T. Wallace at or
before the date of the said filing npou the said lands, made and entered into an
agreement for the sale of said lands as soon as he should obtain patent therefor, and
that said entry was not made in good faith bat was made in the interest of another
party and is held for speculative purposes. We accordingly recommend that said
entry be canceled.
On the entryman's appeal your office on October 10, 1896, rendered
decision finding that the entryman made the entry in good faith, and
without any agreement or understanding to convey any part of the
land to Samuel B. Wallace; that at the date of the final proof he had
a clear right to sufficient water to irrigate the land ; that he made the
final proof to acquire title for his own use and benefit and without any
intention to convey the land to any other party; and that on May 31,
1893, he entered into an agreement to convey the land to Samuel B.
Wallace after final proof in consideration of certain work to be done
and money to be paid by him, but that said Samuel B. Wallace refused
to keep his part of the agreement and did not expect the land to be
conveyed to him. On this finding, your office held that the agreement
to convey the land was a valid assignment of the entry under section 7
of the desert land act, as said act is amended by section 2 of the act
, of March 3, 1891 (26 Stat, 1095) and affords no ground for the can-
DECISIONS RELATING TO THE PUBLIC LANDS. 105
cellatit)!! of the entry. The decisioD of the local officers was therefore
reversed aud the contest dismissed.
Wheatou's apx>eal from said decision brings the case before the
Department.
The contestant has failed to prove that the entrynian had entered
the land under any agreement or understanding to convey any part of
the land to Samuel B. Wallace, or that he entered into the particular
agreement alleged to have been made May 31, 1893, With reference
to any written agreement, all that is proved in accordance with the
rules of evidence, is that such agreement was entered into between the
parties. The agreement itself was not offered in evidence. It was not
shown that any effort was made to have it produced, and no foundation
was laid to authorize the introduction of a copy or to allow its contents
to be shown by parol evidence. If there is any record of the agree-
ment, the fact does not appear. The paper which is denominated a
certified copy of the agreement, which is found with the record, is
not a certified copy of the agreement, but the certificate is to the effect
that the paper is a true and correct copy of a complaint in the clerk's
ofiice. This paper was inadmissible, and is not in a legal sense a part
of the record. It was filed with the local officers, without notice to the
other side, after the case had closed. It does not appear what consid-
eration was given to it by the local officers. Your office construed it,
but it is harmless, since, if it were to be considered as evidence, its
terms show that it has reference to a transfer to be made after final
proof, and was entered into at a time when it would not have been
unlawful to make an assignment of the entry under section seven of
the desert land act, as amended by the act of March 3, 1891 (26 Stat,
1005).
It has never been carried into effect. 8. B. Wallace, one of the parties
to it, and protestant's chief witness, repudiates it and claims nothing
under it, while the entryman submits his final proof on an entirely dif-
ferent basis from the one contemplated by the agreement. It is insisted,
however, as testified to by 8. B. Wallace, that there was an antecedent
verbal agreement in reference to certain shares of water stock to be fur-
nished the entrymen, but the witness admits that it was made subse-
quent to the date of the entry of D. T. Wallace, and this being conceded,
it could only have reference to acts thereafter to be performed, and
which were abandoned and never performed. If D. T. Wallace had
carried out the scheme of submitting his final proof on a false basis, it
would have been rejected, and his entry canceled.
The mental state, or mere puri)ose of an entryman, is only to be con-
sidered in connection with some material act to be performed by him,
either in mnking the entry or ])erfe('tin;^ it. A fraudulent agreement to
be acted on in the future, entered into before or at the time of entry
will vitiate it, because the illegal puri)ose and the act of entry are con-
joined and coexistent. The contestant is in the attitude of denying that
106 DECISIONS RELATING TO THE rUBLIC LANDS.
an illegal purpose or scheme which has reference to a fatnre act to be
performed can be abandoned before it ripens into an act, and its coiise-
qnences avoided. This may be true to a limited extent in the domain
of morals, bnt, in law, the mere entertaining of an unlawful purpose,
which is abandoned, while it is yet only a purpose, and never acted
upon, is without penalty. The illegal purpose which the contestant
charges against the entryman had its origin between the two material
acts of making entry and offering final proof. We have already seen
that the entry is untainted, and it now remains to be seen how it affects
the final proof.
The offense of the entryman is that at one time he contemplated
basing his final proof on the spurious ownership of certain water rights,
but becoming alarmed, backed out from doing this, and became the
owner in his own right of the necessary water and water rights on
which he submitted his final proof. It is not denied that the land was
reclaimed, and that the entryman was the owner of the water and water
rights necessary for its proper irrigation, when his final proof was sub-
mitted. This proof meets the requirements of the law.
Tour office decision is accordingly affirmed.
SCHOOL LANI>9-INI>X:MNITT selection— APPBOTAIf
Todd v. State of Washington.
The authority of the Secretary of the Treasury in the matter of school lands con-
ferred by the aet of May 20, 1826, was transferred to the Secretary of the Interior
by the act organising the Interior Department.
The approval of a school indemnity selection by the Secretary of the Interior passes
the title thereto, and, in contemplation of law, makes such selection the act of
the Secretary, and it is thereafter not material to inquire how snch selection was
made in the first instance.
The provisions contained in sections 10, and 11, of the act of Fehraary 22, 1889, In
so far as in conflict with sections 2275 and 2276, R. 8,, are superseded by the aet
of February 28, 1891, amending said sections.
Secretary Francis to the Oommissioner of the General Land Office^ Jan-
(I. H* L.) uary 30, 1897. (C. J. G-.)
Thomas W. Todd has appealed from yonr office decision of September
23, 1S95, sustaining the action of the local officers in rejecting his home-
stead application of August 5, 1895, for the NE. J of Sec. 9, T. 38 N.,
E. 2 E., W. M., Seattle land district, Washington.
The ground for such action was that the said tract was not public
land of the United Statea, the same being included in list No. 1 of
school indemnity selections approved May 4, 1805, and certified to the
State of Washington, and therefore not subject to homestead entry.
It would seem that the said selection was regular and valid notwith-
standing the contention of the appellant to the contrary.
DECISIONS RELATING TO THE PUBLIC LANDS. 107
The appeal urges that the said selections are invalid for the following
reasons:
1. The connty commissioners were not aatliorized to select land in lien of defi-
ciencies for natural causes.
2. Because Washington was not entitled to indemnity on the basis employed.
3. Because the township in which this land was selected was not entitled to the
amount selected.
4. Because the act of February 22, 1889, repealed the acts reserving said land, so
far as they apply to Washington.
5. Because the act of February 22, 1S8'.\ has provided school lands for the State,
and the manner in which she may acquire them.
6. Because the cause for the reservation of the land has ceased to exist.
It will not be necessary for the purposes of thjs decision to consider
the foregoing assignments in regular order.
Section 20 of the act of March 2, 1853 (10 Stat., 172), establishing the
territorial government of Washington, provides —
That when the lands in said Territory shall be surveyed under the direction of the
government of the United States, preparatory to bringing the same into market or
otherwise disposing thereof, sections numbered sixteen and thirty >siz in each town-
ship in said Territory shall be, and the same are hereby, reserved for the purpose of
being applied to common schools in said Territory. And in all cases where said sec-
tions sixteen and thirty-six, or either or any of them, shall be occupied by actual
settlers prior to survey thereof, the county commissioners of the counties in which
said sections so occupied as aforesaid are situated, be, and they are hereby, author-
ized to locate other lands to an equal amount in sections, or fractional sections, as
the case may be, within their respective counties, in lieu of said sections so occupied
as aforesaid.
The act of February 26, 1859 (11 Stat., 385), authorized the settlers
on sections sixteen and thirty-six, provided for in the above act, to
pre-empt their settlement claims; and if said sections happened to
be reserved or pledged for the use of schools, other lands were appro-
priated in lieu of such as might be patented by pre-emptors, the said
lands to be selected and appropriated in accordance with the principles
of adjustment and the provisions of the act of May 20, 1826 (4 Stat.,
179). The latter act provides that the selections shall be made by the
Secretary of the Treasury; hence, the appellant contends that there is
no authority under the act of February 26, 1859, for the said selections
to be made by the county commissioners, they not being specifically
mentioned as in the act of March 2, 1853.
The Department of the Interior was created by the act of Congress
approved March 3, 1849 (9 Stat, 395). Section three of said act
provides —
That the Secretary of the Interior shall perform all the duties in relation to the
General Land Office, of supervision and appeal, now discharged by the Secretary of
the Treasury.
In section 441 of the Revised Statutes the Secretary of the Interior
is charged with the supervision of public business relating to the public
lands.
108 DECISIONS KELATING TO THE PUBLIC LANL
Hence, all the powers relatiDg to the public lands conferred upon tlio
Secretary of the Treasury by the act of May 20, 1826, were transferred
to the Secretary of the Interior by the act of March 2, 1849, organizing
the Department. So, granting that the selections herein should be
made in accordance with the provisions of the act of 182G, as contended
by plaiutiflf, yet, by virtue of the organic act of 1849, as embodied in
said section 441 of the Kevised Statutes, the said selections could be
made by the SecTctary of the Interior, aud still be in accordance with
the provisions of the act of 1826. Notwithstanding no specific mention
is made of the county commissioners in the act of 1859, still the power
to make the selections remains with the Secretary of the Interior by-
virtue of legislation subsequent to the act of 1826. So long, therefore,
as tbey are made under the authority and approval of the Secretary of
the Interior it matters not how they werie made in the first instance.
When approved by the Secretary of the Interior they under the law-
become his selections. The fact that the selections were made in the
first instance by the county commissioners, does not on that account
invalidate them. The approval of the selections is the act that passes
title, and as has been shown the Secretary of the Interior possesses
the authority to make this approval.
Nearly all other propositions contained in the assignment of errors
were definitely decided in the case of Daly r. State of Washington (20
L. D., 35). It was held in that case that a selection is not necessarily
invalid though in excess of the basis on which it is made, for the reason
that the excess was undoubtedly in compensation for a deficiency in
some other selection embraced in the list; that the act of February 26,
1859, is applicable to the State of Washington, as previously held in
the cases of John W. Bailey et aL (5 L. D., 216), Hulda M. Smith (11
L. D., 382), and Sharpstein v. State of Washington (13 L. t)., 378); and
that the reservation created by the act of March 2, 1853, is not released
by the enabling a<;t of February 22, 1889 (25 Stat., 676), as held in the
case of L. H. Wheeler (11 L. D., 381). See also cases of Levi Jerome
et aL (12 L. D., 165), and Sharpstein v. State of Washington {supra),
A lengthy argument is filed by the appellant in support of the errors
assigned, and especially in an endeavor to show that the act of Febru-
ary 26, 1859 (R. S. 2275 and 2276), was repealed by the act of February
22, 1889. The act of February 26, 1859, was a general act, and the
apparent conflict between said act and sections 10 and 11 of the act of
February 22, 1889, has been recognized by the Department, and it has
been held that the provisions contained in sections 10 and 11 of the
last mentioned act are superseded by the act of February 28, 1891 (26
Stat., 790), amending sections 2275 and 2276 of the Revised Statutes.
Thus, in the instructions to your office dated April 22, 1891 (12 L. D.,
400), it was stated
that the provisious of the prior act of February 22. 1889, in so far as they are in
ooDflict with those of said sections 2275 and 2276 of the Revised Statutes as amended
DECISIONS BELATINO TO THE PUBLIC LANDff. 109
by the later act of February 2^, 1891, are saperseded by tbe provisiionB of said sec-
tions as amended, and the grants of school lands to those States mentioDed in said
act of February 22, 1889, are to be administered aud adjusted under the provisions
of this later general law.
The appellant herein makes no allegation of settlement prior to the
survey of lands in the field, which would bring him within the provi-
sions of sections 2275 and 2276 as amended. His homestead application
was presented August 5, 1895, and hence was properly rejected, the land
having been approved to the State May 4, 1895.
Your office decision is hereby affirmed.
PBTVATE I^ANB CLAIM— ACT OF JUIiT 7, 188tl.
The Pebbinb Gbant.
The i^rant made to Dr. Perrine by tbe act of July 7, 1838, and sabsequently conferred
by Congress Apon his heirs, was a grant in praeaenti, conveying the legal title to
the grantees, defeasible only by forfeiture duly declared by act of Congress; and
nntil such forfeiture be so declared the grantees have the right to make the
settlement required as a condition precedeut to tbe issue of patent.
Where the attention of Congress has been called to the fact that the conditions sub-
sequent in a grant bave not been complied with, aud no action is taken by Con-
gress, such failure to act will be taken by tbe Department as an expression of
the legislative will that tbe decisions of the courts be accepted as a guide in
administering the law.
The right of settlement on the granted premises is restricted to the grantees or those
claiming under them, and all other settlers thereon are naked trespassers ; and
their settlements may be claimed by the grantees as a fulfillment of tbe condi-
tions of the grant, whenever the settlement is such as tbe grant requires.
If the terms of the grant are complin with it inures to the beneficiaries thereunder,
and patent will issue accordingly ; it is therefore not material for the government
to inquire as to the interest of others in said grant.
Beeretary Francis to the Oommvtaioner of the Oeneral Land Office, Jan-
(L H. L.) uary 30, 1897. (P. J. 0.)
I am in receipt of yonr report, of date January 9^ 1897, upon a com-
munication addressed to this Department by the Honorable Thomas
H. Carter, United States Senate, of date December 31, 1896, in refer-
ence to tbe Perrine grant in Dade county in tbe State of Florida.
The communication is as follows:
Seferring to your recent communication concerning the Perrine land grant in Fla.,
addressed to the Senate Committee on Public Lands I, as chairman of the sub-com-
mittee having the matter in charge have been informed that proofs of compliance
with the terms of the grnut are now before the Commissioner of the General Land
Office awaiting examination.
Desiring to dispose of the matter, I bave the honor to request that the proofs
referred to be taken up for examination at the earliest practicable date and that I be
advised of the conclusion of your Department as to their sufficiency.
The subject of this inquiry, the Perrine grant, is a matter that has
110 mcmoss kblatikg to the public JuAnds.
been caHed to the attention of your olBce and tiie Dq^tment by those
interested since the first grant to Doctor Henry Pefiiae in 1838. Its
history, together with that of the original grantee, is replete with inci-
dents in connection with the early settlements of Sonth Florida and
endeavors to cnltivate and propagate the plants contemplated by the
act, together with many distressing incidents brought about by the
Seminole Indian War, which prevailed throughout that region for
nearly a quarter of a century after the territory had been purchased
firom Spain. The history of it, so far as necessary to determine the
matter that has been again recently brought to the attention of the
Department, is as follows:
Congress by act of July 7, 1838 (5 Stat., 302), passed the following act:
Whereas in obedience to the Treasury circular of the 6th of September, eighteen
hundred and twenty-seven, Doctor Henry Perrine, late American Consul at Cam-
peachy, has distiuquishod himself by his persevering exertions to introduce tropical
plants into the United States ; and whereas he has demonstrated the existence of a
tropical climate in southern Florida, and has shown the consequeirt certainty of the
immediate domestication of tropical plants in tropical Florida, and the great proba-
bility of their gradual acclimation throughout all our southern and south-weatem
states, especially of such profitable plants as propagate themselves on the poorest
soils; and whereas, if the enterprise should be successful, it will render valuable onr
hitherto worthless soils, by covering them with a dense population of small cultiva-
tors and family manufacturers, and will thus promote the peace, prosperity, and
permanency of the Union: Therefore, be it enacted by the Senate and House of
Representatives of the United States of America in Congress assembled, that a town-
ship of land is hereby granted to Doctor Henry Perrine and his associates, in the
southern extremity of the peninsula of east Florida, to be located in one body of six
miles square, upon any portion of the public lands helow twenty-six degrees north
latitude.
Sec. 2. And be it further enacted, that the said tract of land shall be located
within Ueo years from this date, by said Henry Perrine, and shall be surveyed nnder
his direction, by the surveyor of Florida, provided, that it shall not embrace any
land having sufficient quantities of naval timber to be reserved to the United States,
nor any site for maritime ports or cities.
Sec. 3.' And be it further enacted, that whenever any section of land in said tract,
shall be really occupied by a bona fide settler, actually engaged in the propagation
or cultivation of valuable tropical plants, and upon proof thereof being made to the
Commissioner of the General Land Office, a patent shall issue to the said Henry
Perrine and his associates.
Sec. 4. And be it further enacted, that every section of land in the tract aforesaid,
which shall not be occupied by an actual settler, positively engaged in the propaga-
tion or cnltivation of nsefnl tropical plants, within eight years from the location of
said tract, or when the said adjacent territory shall be surveyed and offered for sale,
shall be forfeited to the United States.
It is shown by the voluminous correspondence of Doctor Perrine,
after the passage of this act and until some time in the year 1840, that
although the obstacles he was forced to encounter in order to carry out
the terms of the grant were almost insurmountable, he did make an
effort so to do, moved his family there and resided upon the land that
he had selected in compliance with this act. It is shown by the same
correspondence that he planted some of the plants that were contem-
DECISIONS RELATING TO THE PUBLIC LANDS. Ill
plated, but owing to tbe unsettled conditions, marauding bands of
Indians infesting the country, the efforts were confined to a very small
area, upon which it seems he started a nursery for the purpose of pro-
ducing the plants that he intended experimenting with. While engaged
in this work at Indian Key, some time in the summer of 1840, Doctor
Perrine was murdered by the Seminole Indians, his wife and children
barely escaping with their lives ; his house, furniture, library, out build-
ings, and other valuable improvements were burned and destroyed.
Congress, by the act of February 18, 1841 (6 Stat,, 819), passed the
following supplemental act:
Whereas, under the provisions of the act, to which this act is a supplement, Doctor
Henry Perrine made, in the manner thereby required, the location therein author-
ized; and while engaged in the necessary measure to carry into effect the object
contemplated by said act, was murdered by the Seminole Indians ; and whereas Mrs.
Ann F. Perrine, the widow of the said Doctor Perrine is anxious to continue the
undertaking thus commenced by her late husband, but is prevented from so doing by
the continuance of the Indian War in Florida: Therefore, be it enacted, etc., that
Mrs. Ann F. Perrine, the widow of the said Henry Perrine, and Saruh Ann Perrine,
Hester M. S. Perrine, and Henry E. Perrine, his surviving children, are hereby
declared to be entitled to all the rights and privileges vested in and granted to the
said Doctor Henry Perrine, by the act to which this is supplement, and that the
time limited by said act, in which every section of said grant shoald be occupied to
prevent tbe forfeiture of the same to the United States, be, and the same is hereby
extended to eight years ftom and after the time when the present Indian War in
Florida shall cease and determine.
The land was officially surveyed in 1847 and the tract theretofore
designated by Doctor Perrine in person was set aside for him, and
embraces lands described as follows: Sections 12, 13, 24, 25 and 36 T.
^ S., E. 39 B. ; Section 1, T. 56 S., R. 39 E. ; Sections 7, 8, 9, 10, 11, 14,
15, 16, 17, 18, 19, 20, 21, 22, 23, 26, 27, 28, 29, 30, 31, 32, 33, 34, and 35, T. 55
8., R. 40 B.; and Sections 2, 3, 4, 5, and 6, T. 56 S., R. 40 B., Tala. Men
It appears that after the passage of the supplemental act the widow
and children of Doctor Perrine undertook to carry out the provisions
of the same by establishing settlers on each section. Thirty-six fami-
lies from the Bahama Islands were engaged came over and commenced
to establish their homes on the land, but were soon compelled to aban-
don them by reason of being frightened or driven oif by the Seminole
Indians.
Some effort, however, was evidently made by these inhabitants, or
the heirs directly, to comply with the terms of the act, as I find in the
record the affidavits of Alexander Mackay, R. R. Fletcher and Wil-
liam H. Hears, sworn to on April 5, 1848, in which they say that they
superintended the planting of "sea sal hemp" and lime seed; each of
them enumerate the sections of land upon which this planting was
done, and an examination of the same shows that it covered every one
of the sections included in the grant.
It appears that the representatives of the heirs in 1850 presented a
memorial to Congress praying that the terms of the grant be extended
112 DECISIONS RELATING TO THE PUBLIC LANDS.
owing to tbe unsettled conditions that then prevailed in that vicinity.
Ko action, however, seems to have been taken by Congress in relation
to the matter.
It is a matter of history that the Seminole War, which was referred
to by Congress in the supplemental act, was one of long duration and
seriously retarded the settlement of that part of the country. It
appears, however, by the records in the War Department, that open
hostilities bfficially ceased in December, 1855; yet it is certain that
there were marauding bands still harassing the settlers tor some time
thereafter.
From 1862 down to the present time the heirs of Doctor Perrine have
been before your office, the Department and Congress, persistently
demanding that their rights to the grant should be recognized; but
little seems to have been accomplished in the matter except by reports
made from your office to Congress in relation to the status; and in that
of March 17, 1887, your office recommended that patents be issued to
three sections named, because proof had been made of compliance
with the act.
It appears that the land embraced in the grant was regularly with-
drawn and set apart under the provisions of said act of 1838, and
although there had not been a strict compliance with its terms by the
heirs of Doctor Perrine, and proof made as required, yet the lands had
been held not subject to disposal on any account until Congress shall
have given authority to restore the same to the public domain.
The State of Florida at one time laid claim to the land under the
swamp act of 1850, and in 1873' made selection of the same, but in
view of the priority of the Perrine grant these selections were sus-
pended by your office and no steps taken in relation thereto until the
rights of the grantees were fully determined.
The inquiry of Senator Carter, quoted above, in relation to this
grant, seems to have been brought about because of the introduction
of a bill in the first session of the fifty-fourth Congress to restore to
the public domain in the lands within the grant, to enable settlers
within the limits of the same to homestead the tracts actually occupied
by them.
The report of your office has been forwarded to the Department, by
reason of the request of Senator Carter, together with all the records
in connection with the matter, and it has been deemed advisable to
investigate the subject with a view of determining whether or not any
further legislation is required or whether the parties have complied
with the terms of the grant sufficiently to warrant the issuance of
patents to them.
After mature deliberation upon this subject, I am convinced that the
grant to Doctor Henry Perrine, subsequently conferred as it was by
the act of Congress upon his heirs, was a grant inpraesentij conveying
the legal title to the grantee, defeasible only by forfeiture duly declared
by act of Congress. Until such forfeiture be so declared the grantee
DECISIONS KELATING TO THE PUBLIC LANDS. 113
has the right to make the settlement required by the grant as a condi-
tion precedent to the issuance of patent, as contemplated by the acts
of Congress, and whenever the requirements of the grant have been
complied with as to any section of the township, and proofs thereof
submitted and accepted, a right to title thereto has vested, and Con-
gress can not declare a forfeiture thereof without impairing the validity
of the grant.
That the grant is one in praesenti is conclusively decided by the
supreme court in Schulenberg v. Harriman (21 Wall., 44). The question
before the court in that case was the construction of an act granting
lands to the State of Wisconsin to aid in the construction of railroads,
and by the first section it is declared, ^Hhat there be and is hereby
granted to the State of Wisconsin," etc., certain sections of land enu-
merated. And it was provided further, in the fourth section, that,
if said road is not completed within ten years, no further sales shall be made, and
the lands unsold shaU revert to the United States.
Determining whether this grant should be forfeited because the road
was not constructed strictly according to the terms of the statute, and
referring directly to the last quotation above, the court say :
It is settled law that no one take advantage of the nonperformance of a condition
snbseqnent annexed to an estate in fee, bnt the grantor or his heirs, or the successors
of the grantor if the grant proceed from an artificial person ; and if they do not see
lit to assert their right to enforce a forfeiture on that ground, the title remains
unimpaired in the grantee. The authorities on this point, with hardly an exception,
are aU one way from the Year Books down. And the same doctrine obtains where
the grant upon condition proceeds from the government; no individual can assail
the title it has conveyed on the ground that the grantee has failed to perform the
eonditionB annexed.
In what manner the reserved right of the grantor for breach of the condition must
be asserted so as to restore the estate depends upon the character of the grant. If
it be a private grant, that right must be asserted by entry or its equivalent. If the
grant be a public one it must be asserted by judicial proceedings authorized by law,
the equivalent of an inquest of office at common law, finding the fact of forfeiture
and adjudging the restoration of the estate on that ground, or there mnst be some
legislative assertion of ownership of the property for breach of the condition, such
as an act directing the possession and appropriation of the property^ or that it be
offered for sale or settlement.
The doctrine here announced by the court has been followed by it in
a great number of cases subsequently, notably those of Van Wyck v,
Knevals, 106 U. S., 360; St: Lous &c.. Railway v. McGee 115 U. 8,,
469; Bybee v. Ore. and Cal. R. R. Co. 139 U. S. 663; Deseret Salt Co.
r. Tarpey, 142 U. S., 241; and Lake Superior Ship &c. Co. v, Cunning-
ham, 155 U. S., 354.
The principle decided in these cases has been invariably applied by
the Department in the construction of similar grant. See Cooper et aL
r. Sioux City R. R. Co., 1 L. D. 345; in re Central Pacific R. R. Co.,
2 L. D., 489; Wisconsin R. R. Co., 5 L. D., 81; Wisconsin Central R. R.
Co., 0 L. D., 100; and Plaetke v. Central R. R. Co., 10 L. D., 317.
10671— VOL 24 8
114 DECISIONS RELATING TO THE PUBLIC LANDS.
It Las also been decided by the Department tbat where the attention
of Congress has been called to the fact that the conditions subsequent
have not been complied with (as in this case by a petition of the
grantees in 1850 and again in 1887), and no action is taken by the Con-
gress, the Department accepts its failnre to act as an expression of its
will that the decisions of the court shall be taken as its guide in admin-
istering the law. Daneri r. Texas and Pacific R. R. Co., 2 L. D., 548.
In view of these authorities it would seem that if there has been a
compliance with the terms of the act upon the part of the grantees,
even though it may have been since the close of the Seminole War., as
contemplated by Congress in the supplemental act, the fee of the land
still rests in them, and before final action by Congress, or judicial pro-
ceedings instituted, patents may be issued to the grantees.
It may be said further, that the right of settlement upon the granted
premises would be restricted to the grantees or those claiming under
them, and all other settlers thereon are naked trespassers and their
settlement may be claimed by the grantees as a fulfillment of the con-
dition of the grant whenever the settlement is such as the grant
requires.
It appears that there were a number of settlers on the lands, and in
December, 1896, all of them with the exception of John W. Roberts,
Sarah M. Roberts, James A. Smith, John F. Roberts and Oeorge H.
Mehring, made proof before a United States Commissioner, and the
same was transmitted to your office. It is not deemed advisable to go
into details regarding this proof. Its sufficiency is a matter your office
must primarily pass upon, which has not yet been formally done. It
is 'Sufficient in this connection to say that in your office letter of Jan-
uary 9, 1897, reporting on reference of letters of Senator Carter, it is
said, '<the proofs appear to me to be in compliance with the provisions
of Sec. 3 of the act of July 7, 1838."
Your office during the month of January, 1897, has forwarded to the
Department several letters written by the three Roberts, Mehring and
Smith, the persons who, as stated above, refused to make final proof,
and one E. I. Robinson, who is acting as attorney for the others. The
same parties have also written letters to the Secretary of the Interior;
also to a United States Senator, who has forwarded copies of the
letters he received to the Department. These letters are not deemed
of sufficient importance as bearing upon any question as to the validity
of the grant or the improvements placed thereon by themselves or those
who did make final proof, to warrant more than a passing consideration.
In your office report to the Department, of January 9, 1897, you refer
to the letter of Robinson and say:
I think no showing is made by the said letter which wonld warrant the sending of
an inspector to Florida, or which would raise any presnmption of bad faith against
the claimants under the grant.
I concur in this. The statements are not under oath, and can not
DECISIONS RELATING TO THE PUBLIC LANDS. 115
tlierefore be accepted to overcome the fiiml proof. Aside from this
there is nothing charged, even if sworn to, that would d^eat the grant
or warrant sending an inspector. The parties do not state that there
has been any failure to comply with the terms of the grant in regard
to the particular tracts they occupy.
The particular grievance of these persons seems to be against certain
railway companies which appear to have been instrumental to some
extent in the development of the lands. It is not shown by the record
before me what interest the companies have in this land, and it is
wholly immaterial what their interest may be. If the terms of the
grant are complied with, even if railway companies have assisted in
doing so, the grant inures to the beneficiaries under the grant, and the
patents will necessarily run to them. Any grievances, therefore, the
settlers may have against the companies is a matter between themselves
and not one the government will take part in.
These same parties have also forwarded a copy of an affidavit sent
to the vice president of the East Coast Eailway Company in which is
recited at some length their grievances. But as said in reference to
the letters, the matters therein contained do not raise any question the
government can consider.
There is also a copy of another affidavit made by the same parties,
not addressed to any one, but inasmuch as it says,
that if a goYemnient inspector authorized to take depositions of Bettlers and thor-
ougbly honest should come down here he would be kept busy a long time investi-
gating injuries to the settlers and frauds against the government,
I take it that it was meant for your office, yet why a copy and not
the original should have been filed is unexplained. In addition to this
suggestion in regard to sending an inspector it appears that all they
ask is for the government to arrange so that they can deal directly with
the government in regard to securing their titles.
As before said the Department is powerless to aid them even if the
matter were properly presented for its consideration. By the terms of
the grant patents must issue in accordance with the terms of the acts
and could not be given either to the settlers or the railway companies.
The record is returned to your office with directions to examine the
final proof submitted and if found satisfactory to issue patents to the
beneficiaries of said grant.
It is so ordered*
116 DECISIONS RELATING TO THE PUBLIC LANDS.
SALT SPRINGS AND SALINE LANDS-SELECTION.
State of Oregon ex al. v. Jones.
The provisions in the act of Kebrnury 14, 1859, granting salt sprinf^s and adjaoent
lands to the State of Ore<;oii, and the act of December 17, 1860, amendatory
thereof, so far as they tix a time for selections under snid grant, are directory,
and not mandatory ; but us the grant so ma<le only becomes effective as to spe-
cific tracts on selection by the State, the right to make snch selections after
the expiration of the time fixed therefor will be defeated by an intervening
adverse right asserted under the general provisions made for the disposal of
saline lands by the act of January 12, 1877.
Secretary Francis to the Commissioner of the OeneraX Land Office^ Feb-
(I. H. L.) ruary 6, 1897. (O. J. W.)
On September 11, 1895, David B. Jones filed an affldsvit duly cor-
roborated, alleging that the SW. J of SW. J of Sec. 4 and NW. J of
NW. i of Sec. 9, SW. i of SE. J of Sec. 8 and KW. J of NB. J of Sec. 17,
T. 35 N., R. 25 E., W. M., Lakeview, Oregon, were lauds unfit for culti-
vation and were saline in character, and should be disposed of as saline
lands. On September 25, 1895, proof was submitted in support of said
allegations, and on that day, based on the evidence so submitted, the
local officers rendered a joint decision, finding the land to be saline in
character and recommending its sale.
By letter **G" of date November 23, 1895, your office ordered said
land to be advertised and offered for sale, in accordance with the pro-
visions of the act of January 12, 1877 (19 Stat., 221). The land was
advertised in accordance with departmental regulations and was sold
on February 21, 1895 to David B. Jones, who was the highest and best
bidder, and cash certificates Nos. 1867 and 1868 were issued covering
said purchases. Subsequently J. K. Barry, who was present and a
competitive bidder at said sale, filed a protest against the issuing of
patents to Jones on his cash entries, and asking that said sales be set
aside and declared void, and that no more lands in Oregon be sold
under said act of 1877, until salt springs and contiguous lands granted
to the State for its use by act of Congress of February 14, 1859 (11
Stat., 384), have been selected by the governor thereof to the extent
named in the grant. On April 21, 1896, your office considered the
report of the local officers, touching said sale and Barry's protest, and
held that the sale of the lands was authorized by said act of January
12, 1877 ; that the proceedings connected with said sale were regular
and that Jones was entitled to patents for the tracts sold. It was
further held that Barry had no right or interest to be considered, and
as he exhibited no authority to represent the State of Oregon, he had
no right to intervene and his protest should be dismissed.
From this decision Barry appealed. Pending said appeal, but before
the papers in the case were transmitted here, the governor of Oregon
transmitted to your office an application to select the same lands included
DECISIONS RELATING TO THE PUBLIC LANDS. 117
in the sale to Jones, ander the aforesaid act of February 14, 1859, which
application was transmitted here by your office as a part of the record
iu said case. W. K. Barry filed his protest, but neither he nor his coun-
sel exhibited any authority to represent the State of Oregon up to the
time your office decision was rendered. Since the application of the gov-
ernor to make selection of the land in question has been filed, the attor-
ney who filed the protest, has also filed authority to represent the State,
HO that the State may now be considered as a proper party to the case
and as properly represented. While your office properly held Barry's
]>rorest for dismissal as the record then stood, as the State now makes
tiie protest its own by adoption, Barry's right to file and maintain it
becomes inconsequent, and need not be further considered, inasmuch
as said protest asserts the right of the State to be paramount. The
ap[ilication of the governor of Oregon to make selection of the land
iuclnded in Jones' purchase is met by a protest filed by Jones in the
form of a motion to reject the list of selections. The contentions thus
l>resented call for an interpretation of the acts of February, 1859 (11
Stat., 384), of December 17, 1860 (12 Stat., 124) and of January 12, 1877
(19 Stat., 221). The contention of the State is that the provisions in
the first named acts, as to the time within which the State shall make
its selections, are directory and not mandatory, and theretbre until the
claim of the State is first satisfied, sales of saline lands under the act
of January 12, 1877, are made subject to the existing prior right of the
State to select such land under its grant.
The correctness of this contention is denied by Jones. Some of the
questions presented by the present record and contentions were consid-
ered here in the somewhat similar case of State of Colorado, ex parte
( 10 L. D.y 222), and the. ruling in that case as far as the same is apphca-
ble to the present one will be followed. It is to be observed, however,
that individual rights were not in issue in that case, and it is stated in
the body of the decision,
Had third parties intervened prior to the selection and initiated proceedings under
the act of 1877 touching the lauds in question, the right of the State thereto might
hare been lost.
Here Jones initiated proceedings under the act of January 12, 1877;
proved the lands to be saline in character; had become the purchaser
of them; and had paid the purchase price to the government, before the
State made any motion to select these lands under its grant. In the
Colorado case, it was held, that the act of January 12, 1877, did not
rep<^al the earlier act making the grant to the State, and that the two
acts might stand together, each having a separate field in which to
oi>erate, and providing different methods of acquiring title to saline
land9.
The act making the grant to Colorado was as follows:
Tbat aU salt springs, within said State, not exceeding twelve in number, with six
Mctiona of land at^oining, and as contiguous as may be to each, shall be granted to
118 DECISIONS RELATING TO THE PUBLIC LANDS.
said State for its use, the said land to be selected by the govenior of said State
within two years aftt»r the admission of the State, and when so selected to be used
and disposed of on snch terms, conditions and regulations as the legislature shall
direct; Provided, That no salt spring or lands the right whereof is now vested in
any individual or individuals, or which hereafter shall be confirmed or adjudged
to any individual or individuals, shall by this act be granted to said State.
The language of the act under consideration, granting salt springs
to the State of Oregon, is in tbe same terms as the Colorado grant,
except that the selection is to be made in one year after the admission
of the State instead of two years as in the Colorado act. The act of
17th of December, 1860 (12 Stat., 124), amending this act, amends it
only in the matter of time within which the selection is to be made^ by
extending it to any time within three years from the passage of the
amendatory act. It appears therefore that the language to be construed
in order to determine the character of the grant is the same in both
grants referred to. As it was held in the Colorado case that the pro-
vision in reference to tbe time within which the selection should be
made was directory, and that a failure to make snch selection witbin
that time would not of itself work a forfeiture of the grant, a different
construction of this clause of the act can not now be given without
overruling said decision, and no sufficient reason for doing this appears.
The act of February 14, 1859 (11 Stat., 334) took effect on its
approval, and was a grant to the State of certain salt springs and
lands in connection therewith, thereafter to be selected by the gov-
ernor. The grant operated to pass the title to a certain number of salt
springs and the prescribed amount of lauds in connection with each,
from the government; but it did not and could not attach to any spe-
cific salt springs or sections of land until selection was made. The
act does not in any way limit the power of Congress to provide other
methods of disposing of lands of the class cont)9mplated, so long as
the same remain unselected. Congress had the power to pass the act
of January 12, 1877, and as the act of February 14, 1859, is not repealed
or affected by it, effect should be given to both acts as far as may be.
We here have, therefore, a case where one of the principles announced
in the case of Shepley et al, v. Cowen et al. (91 U. S., 330) is applicable.
That is we have two modes of acquiring title to saline lands, both of
which may stand. The rule announced in the case referred to, is that
in a particular case, where two modes exist of acquiring title from the
government, the one will prevail under which the first initiatory step
was taken. Here the first step was taken under the act of January 12,
1877, and by Jones.
In support of the contention that title passed to the State of Oregon,
to the particular land in question, on the approval of the act of Feb-
ruary 14, 1859, the special report in reference to compromise and settle-
ment between the United States and the State of Arkansas, No. 1958, is
referred to as an official admission of the correctness of the construction
contended for in this case. This report is not authority for the priu-
DECISIONS RELATING TO THE PUBLIC LANDS. 119
ciple insisted upon. It is nowhere conceded that the government had
X)iirted with the title to saline lands by its original granting act of salt
springs to the State of Arkansas, and the very fact that the settle-
ment recouimer^ded was recommended as a compromise only, deprives
it of value as a judicial precedent. It is a mere recommendation of
terms of compromise, which have not yet been approved by Congress.
The construction of the act contended for by the State does not seem
to be in harmony with the follovimg proviso of the act:
Prodded, that no j^alt spring or land, the right whereof is now vested in any indi-
vidaal or individuals, or which may hereafter be confirmed or adjudged to any
individual or individuals shall by this article be granted to said State.
After due consideration of the several acts of Congress referred to,
and the authorities cited, my conclusions are:
1. That the doctrine announced in the Colorado case, supra^ constru-
ing a similar act to the one here in question to the effect that the pro-
visions of said act relative to the time within which selections of salt
springs are to be made by the State, are directory and not mandatory,
will be adhered to.
2. That the grant becomes operative, in the sense of attaching to
specific lands, only on selection by the State. (139 U. S., 1-5).
3. That the application of the State to make selection of the lands
purchased by Jones should be rejected, because his right attached
before it made the application, but the right of the State to make
selection of any unappropriated saline lands in said State in satisfac-
tion of its grant is recognized.
Yoor office decision is affirmed.
AATLROAB GRANT-SECTION 2» ACT OF APRIJL dl, 1876.
GooDBiCH V. California and Oregon Land Co.
The proTisions of section 2, act of April 21, 1876; are not restricted to persons who
made entries nnder section 1, of said act, bat apply, in the event of abandon-
ment by suchoriginat entrymen, to cases where ''under the decisions and rul-
ings of the Land Department/' the lands covered by such original entries have
been ''re-entered by pre-emption or homestead claimants who hav^ complied
with the laws governing pre-emption and homestead entries/' and submitted
satisfactory proof of such compliance.
Secretary Francis to the Commissioner of the Oeneral Land Office^ Feth
(I. H. L.) ruary 6y 1897. (E. M. R.)
This case involved the B. J of the NB. i of Sec. 9, T. 30 S., R. 46 E.,
Lake View land district, Oregon, and is before the Department upon
appeal, by the California and Oregon Land Company, from your oflBce
decision of October 21, 1895, awarding the tract in controversy to
Amelia Goodrich.
120 DECISIONS RELATING TO THE PUBLIC LANDS.
The record shows that this tract is within the primary limits of the
grant made by the act of July 2, 1864 (13 Stat., 355)^ to aid in the con-
struction of the Oregon Central Military Boad, as shown by the with-
drawal made on account thereof on May 2, 1876, Two maps showing
the definite location of this road were filed in the Department — ODe on
March 17, 1869, and the other on February 28, 1870.
This tract was listed on August 23, 1883, by the California and Ore-
gon Land Company, successor in interest to the aforesaid road company*
April 15, 1874, A. C. Goodrich filed declaratory statement for the
tract in controversy, alleging settlement on July 1, 1873. May 2, 1889,
Amelia Goodrich filed declaratory statement for the same tract, alleg-
ing settlement on !ITovember 18, 1888. After notice given, proof was
made by the said Amelia Goodrich, and final certificate was issued
January 7, 1891.
The land in question was withdrawn by your office letter of date April
15, 1876, which was received on May 2, 1876, upon which date the with-
drawal became eff*ective. At that date this tract was covered by the
declaratory statement of A. C. Goodrich.
Your office decision held that this entry was confirmed under the
seox)nd section of the act of April 21, 1876 (19 Stat., 35), which is as
follows:
That when at the time of such withdrawal as aforesaid valid pre-emption or home-
stead claims existed npon any lands within the limits of any such grants which
afterward were abandoned, and, under the decisions and rulings of the Land Depart-
ment, >\ ere re entered by pre-emption or homestead, claimants who have complied
w ith the laws governing pre-emption or homestead entries, and shall make the proper
proofs required under such laws, such entries shall be deemed valid, and patents
shall issue therefor to the person entitled thereto.
In the argument filed by counsel for the California and Oregon Land
Company it is urged that the confirmatory provisions of the act of
April 21, 1876, were intended solely for the benefit of the individual
claimants who had abandoned such entries, and to sustain that propo-
sition reference is made to the case of the Northern Pacific Railroad
Company (20 L. D., 191), wherein it was held (syllabus) :
The confirmation of entries under section 1, act of April 21, 1876, is solely for
the benefit .of the individual cluimant, conditioned npon his compliance with law,
and was not intended to confirm the entry absolutely, as against the right of the
company, so as to except the land from the grant in favor of any other settler.
That case does not sustain the contention of counsel. The ruling
therein laid down applies only to section 1. The second section of the
act was not involved, and was not considered in that case.
The case at bar seems clearly to come within the provisions of the
second section. That section provides "that when at the time of such
withdrawal '^ (referring to the withdrawal mentioned in section one)
pre emption or homestead claims existed, which were afterwards aban-
doned, and " under the decisions and rulings of the Land Department,
were re-entered by pre-emption or homestead claimants who have com-
DECISIOXS RELATING TO THE PUBLIC LANDS. 121
plied with tLe laws g^overnirjjj pre-emption or homestead entries, . . • •
sach entries shall be valid, and x)atents shall issue therefor to the per-
son entitled thereto." It does not say, " were re entered by the original
pre-emption or homestead claimants," but "were re-entered by pre-
emption or homestead claimant."
In this case Amelia Goodrich made declaratory statement, and sub-
mitted proof upon which entry was allowed and final certificate issued.
It therefore becomes pertinent to inquire whether her said filing and
entry were made "under the decisions and rulings of the Land Depart-
ment," as provided in said second section.
In the case of the Northern Pacific Railroad Company v. Burns,
decided July 13, 1887 (6 L. D., 21), it was held (syllabus) :
A homestead claim, existing prior to the receipt of notice of withdrawal or general
route of the Northern Pacific, excepts the land covered thereby from the operation of
said withdrawal.
Snch being the law as then declared by the Department, it was imma-
terial whether the claim subsequently set up was by tlie original or a
new claimant; and this view of the law remained in force and undis-
turbed until the decision of March 12, 1895, in the case of the Northern
Pacific Eailroad Company (20 L. D., 191), wherein said decision (supra)
was specifically overruled.
In this case Amelia Goodrich filed her preemption declaratory state-
ment in 1889, and made her proof and final entry before the Burns case
was overruled, and during the time when that case was in force as a
decision and ruling of the Land Department, and it is therefore clear
that such filing and entry were made '^ under the decisions and rulings
of the Land Department." Kor can it be said that the provisions of
section two of said act operate solely to confirm entries and filings made
prior to it« passage, for this question was considered in the case of the
Northern Pacific Railroad Company v. Symons (22 L. D., 686), wherein
it was held (syllabus) :
The confirmatory provisions of section 2, act of April 21, 1876, are not limited to
entries made prior to the passage of said act, hut are equally applicable to entries
made thereafter.
See also, to the same effect, Northern Pacific Eailroad Company v.
Crosswhite (20 L. D., 526).
It is therefore held that the provisions of said section two are not
restricted to persons who made -entries under section one of the act
but apply, in the event of abandonment of such original entrymen, to
cases where, "under the decisions and rulings of the Land Depart-
ment," the lands covered by such original entries have been "re-entered
by pre-emption or homestead claimants who have complied with the
laws governing pre-emption and homestead entries," and satisfactory
proofs of such compliance have been submitted.
The appellee here having made her filing and entry "under the
decisions and rulings of the Land Department," as shown, and having
J
122 DECISIONS RELATING TO THE PUBLIC LANDS.
furnished the required proofs of her compliance with the law there-
under, her entry is clearly confirmed by the second section of said act,
and the decision of your office is therefore affirmed.
SUBVEY-APPLICATION OF STATE-ACT OF AUGUST 18, 1804.
State of Washington.
An application of a State for the survey and reservation of a township nnder the
act of August 18, 1894, must be denied, where, prior to such application, a survey
of the township has been ordered for the benefit of settlers.
Secretary Francis to the Commissioner of the General Land Office^ Feb-
(I. H. L.) ruary 6, 1897. (0. J. W.)
On May 28, 1896, application was duly made by the governor of the
State of Washington for the survey and reservation, under the act of
August 18, 1804 (28 Stat., 394), of certain townships, in the application
designated and described.
On June 15, 1896, by letter "B,^ of that date, your office denied the
application on the ground that other parties had applied for the survey
of the same townships, and that they were under contract for survey on
the applications and petitions of settlers, and were not subject to reser-
vation under the terms of the act of August 18, 1894.
The State appealed from your office decision, alleging the following
errors:
1. Error in holding that snch lands were not nnsurveyed within the meaning of
the act referred to.
2. Error in holding that the State was not entitled to have the same surveyed and
reserved from adverse claims in pursuance of said act.
Before considering said appeal, on Jaiiuary 7, 1897, your office was
requested to report by virtue of what law or statute the applications of
the settlers referred to were entertained. The Department is in receipt
of your letter " E " of January 9, 1897, in response to said request, which
contains the following report:
In reply I have the honor to report that section 453 of the Revised Statutes of the
United States provides as follows :
''The Commissioner of the General Land Office shall perform, nnder the direction
of the Secretary of the Interior, all executive duties appertaining to the surveying
and sale of the public lands of the United states, or in anywise respecting snch
public lauds.''
Sectiou 2218 of the Revised Statutes U. S. further provides as follows;
''The Secretary of the Interior shall take all the necessary measures for the com-
pletion of the surveys in the several surveying districts for which surveyors general
have been, or may be, appointed, at the earliest periods compatible with the pur-
poses contemplated by law."
In pursuance of the provisions of law embraced in the quoted statutes this office
has from year to year issued to the surveyors general of the several surveying dis-
tricts annual surveying instructions for their information and guidance.
DECISIONS RELATING TO THE PUBLIC LANDS. 123
The act of Congress makiDg an appropriation for conveying the public lands for
the fiscal year ending Jnne 30, 1896, contains the following specific proviso: (29
Stat., 434)
"That in expending this appropriation preference shall be given in favor of sur-
veying townships occupied, in wbole or in part, by actual settlers and of lands
granted to the States by the act approved February twenty-second, eighteen hundred
and eighty -nine, and the Acts approved July third and tenth, eighteen hundred and
ninety, and other surveys shall be confined to lands adapted to agriculture, except
that the Commissioner of the General Land Office may allow, for the survey and
re-survey of lands heavily timbered, mountainous, or covered with dense under-
jrrowth, rates not exceeding thirteen dollars per linear mile for standard and meander
lines, eleven dollars for township, and seven dollars for section lines, and in cases of
exceptional difllculties in the surveys, when the work cannot be contracted for at
these rates, compensation for surveys and resnrveys may be made by said Commis-
sioner, with the approval of the Secretary of the Interior, at rates not exceeding
eighteen dollars per linear mile for standard and meander lines, fifteen dollars for
township, and twelve dollars for section lines: Provided, That in the States of Cali-
fornia, Idaho, Montana, Oregon, Arizona, Wyoming, Washington, Colorado, and
Utah, there may he allowed, in the discretion of the Secretary of the Interior, for
the survey and resnrvey of lands heavily timbered, mountainous, or covered with
dense undergrowth, rates not exceeding twenty-five dollars for township and twenty
dollars for section lines."
In the annual surveying instructions issued for the fiscal year ending June 30,
1896, which were formally approved by the Department, are the following para-
graphs, rir.:
''The law requires that in expending this appropriation preference shall be given
in favor of surveying townships occupied, in whole or in part, by actual settlers,
and of lands granted to the States by the act of February 22, 1889, and the acta
approved July 3 and 10, 1890; hence in taking measures for the letting of contracts,
it will be your first duty to ascertain the localities in which there are bona fide set-
tlers, and the funds should be so applied as to benefit the greatest number of settlers.
'^Contracts for subdivisional surveys, when transmitted to this office, should be
accompanied by evidences of settlement on the lands embraced in such contracts.
Said evidences are usually applications or petitions for survey signed by actual set-
tlers on the lands, together with the affidavits of settlers, setting forth length of
residence on their claims and the nature, extent, and value of the improvements
made thereon."
It will be observed from the foregoing quotations of law, that in all cases where
the rates of mileage to be allowed for public surveys exceed the so-called interme-
diate ($13, $11, $7), that the same must be specially authorized by the Secretary of
the Interior. To that end the Department requires this office to submit the applica-
tion of settlers for survey, and descriptions of the class and character of the lands,
in connection with the proposed public surveys, as provided in the annual surveying
iustructions herein referred to.
It may be further stated that the existing practice of authorizing the award of
contracts for public surveys, on the applications of the settlers on the lands, has
been in vogue since 1886, and that the annual surveying instructions from that time
to the present, which require said applications, have been uniformly approved by
the Secretary of the Interior.
The section of tlie act of August 18, 1894, under which the governor
of the State of Washington makes the application under consideration,
is as follows :
That it shall be lawful for the governors of the States of Washington, Idaho,
Montana, North Dakota, South Dakota and Wyoming to apply to the Commissioner
124 DECISIONa RELATING TO THE PUBLIC LANDS.
of the General Land Office for the survey of any township or townships of pnblic
land then remaining unsnrveyed in any of the several surveying districtSi with a
view to satisfy the public laud grants made by the several acts admitting the ssid
States into the Union to the extent of the full quantity of land called for thereby ;
and upon the application of said governors the Commissioner of the General Land
0/nc« shall proceed to immediately notify the surveyor-general of the application
made by the governor of any of the said States of the application made for the with-
drawal of said lands, and the surveyor general shall proceed to have the survey or
surveys so applied for made, as in the cases of surveys of public lands; and the
lands that may be found to fall witliiu the limits of such township or townships as
ascertained by the survey, shall be reserved upon the filing of the application for
survey from any adverse appropriation by settlement or otherwise except under
rights that may bo found to exist of prior inception, for a period to extend from such
application for survey until the expiration of sixty days from the date of the filing
of the township plat of snr\'ey in the proper district land office, during which period
of sixty days the State may select any such lands not embraced in any valid adverse
claim, for the satisfaction of such grants, with the condition, however, that the
governor of the State, within thirty days from the date of such filing of the appli-
cation for survey, shall cause a notice to be published, which publication shall be
continued for thirty days from the first publication, in some newspaper of general
circulation in the viciuity of the lands likely to be embraced in such township or
townships, giving notice to all parties interested of the fact of such application for
survey and the exclusive right of selection by the State for the aforesaid period of
sixty days herein provided for; and after the expiration of such period of sixty days
any lands which may remain unselected by the State, and not otherwise appropriated
according to law, shall be subject to diHposal under general laws as other pnblic
lands: Avd prorided further y That the Commissioner of the General Land Office shall
give notice immediately of the reservation of any township or townships to the
local laud office in which the land is situate of the withdrawal of such township or
townships, for the purpose hereinbefore provided.
The act also contains this provision :
Provided that in expending this appropriation preference shall be given in favor
of surveying townships occupied in part, by actual settlers and of lands granted to
the States by the act approved February twenty- second, eighteen hundred and
eighty-nine, and the acts approved July third and July tenth, eighteen hundred and
ninety, and other surveys shall be confined to lands adapted to agriculture &c.
Thus while the act makes no specific provision for the survey of
townships on the application of settlers, it does recognize the right of
homeseekers to make settlement on nnsurveyed public lands, and
directs that, in expending the appropriation, preference shall be given
to the survey of townships occupied in part by actual settlers, and of
land granted to the States. It was evidently not the purpose of the
act to put any restriction or limitation upon the rights of actual set-
tlers, not already existing, and the act is as favorable to them, in so
far as the lands occupied by them are affected, as to the States. The
effect is the same as to them whether the survey is made on their peti-
tion or request, or on the application of the State. In either event
their existing settlement rights must be respected. Over the future or
prospective settler, the State is allowed some advantage by this act.
On its application the State may have the lands in the townships
apx)lied for withdrawn from settlement for sixty days during which
period it may select the desirable lands, and leave the rest for settlers.
DECISIONS RELATING TO THE PUBLIC LANDS. 125
Tbis privile;;e is in deroj;:atioD of tUe common rights of settlers, aud is
not to be enlarged, by construction, but tbe act should be given the
construction which is most favorable to the rights of settlers. The
townships which remain nusurveyed are those for which the State may
make application, under this act. The unsurveyed townships may
therefore be surveyed on the application of the State, or your office
may direct the survey witiiout such application, if deemed advisable.
In the case under consideration, before the State filed its application
your office bad ordered tbe survey of the townships named, and the
same were put under contract to be surveyed, so that tbey ceased to
be townships for tbe survey of which applications would thereafter be
received.
Inasmuch as prior to the application of tbe State, the survey had been
determined upon and ordered by your office, with a view to tbe benefit
of tbe settlers, the townships for tbe survey of which measures bad
thus been taken, were no longer within tbe provisions of said act of
August 18^ 1894, and your office properly so held^ and the decision is
affirmed.
RAILROAD GRANT— MODDTED LINB— ADJUSTMENT.
Iowa Eaileoad Land Oo. (On Eevtew).
The act of Jane 2, 1864, authorized a modification of the line of unconstmcted road
aa located under the original grant of 1856, and provided for a branch line con-
necting said modified line with tbe line of the Mississippi and Missouri Railroad
Company, so as to form a connection with the Union Pacific system. For the
modified main line the company was entitled '^to the same lands and to the same
amount of lands per mile," as provided in the original grant, but for the connect-
ing branch line a new grant was made, to be satisfied from lands within twenty
miles thereof, henoe in the adjustment of the grant, as made by the two acts of
Congress, the '' connecting branch line" cannot be regarded as a part of the
modified main line.
The act of 1864, so far as the modified main line is concerned, enlarged the source
from which the amount of lands granted by the act of 1856 might be satisfied;
but the lands certified prior to said act of 1864, along unconstruoted road, must
remain a charge against the company in the final adjustment of the grant under
the two acts.
Secretary Francis to the Commissioner of the General Land Office, Jan-
(I. H. L.) uary 30, 1897. (F. W. C.)
"With your office letter of September 5, 1896, was forwarded a motion,
filed on behalf of tbe Iowa Eailroad Land Company, snccessor to tbe
Cedar Eapids and Missouri Eiver Eailroad Company, for review of
departmental decision of July 9, 1896 (23 L. D., 79), in tbe matter of tbe
adjustment of tbe grant made by the act of May 15, 1856 (11 Stat., 9),
and June 2, 1864 (13 Stat., 95).
The motion is based upon the following assignments of error:
1. The finding and. holding that the original location is the measure of the grant
for the constructed line of said road, and that the only purpose of the act of 1864, so
126 DECISIONS RELATING TO THE PUBLIC LANDS.
far fls said line is concerned, was to anthorize a change of line and, by enlarging the
sonrce from which selections might be made for losHes in place along the original
line, to fully satisfy the amount granted or intended to be granted for the road west
of Cedar Hapids by the act of 1856.
2. The finding and holding that Exhibit A of the adjustment submitted by the Com-
missioner of the General Land Otiioe is correct and proper ''in so far as the extent of
the grant is concerned."
3. The failure to find and hold that the 4th section of the act of Jane 2, 1864, is,
as is found by the supreme court in Herring r. liailroad Company (110 U. S., 27), a
new grant, and that under it the company is entitled to six sections of land per mile
for every mile of road constructed by said company west of Cedar Rapids.
4. The finding and holding that the 2,569.75 acres erroneously certified to the rail-
road company, they having been theretofore disposed of by the United States, being
outstanding must remain a charge to the grant unless reconveyed to the United
States by said company.
5. The finding and holding that the 76,916.75 acres certified to the State and sold
by the Iowa Central Air Line Railroad Company out of the grant of 1856, prior to
resumption by the State of Iowa, and to the enactment of the grant of 1864, should
not be deducted from the grant made for the modified line by the act of June 2, 1864.
The first three assignments of error question the directions given as
to the measure of the grant.
Your office letter submitting this matter presented five plans of adjust-
ment, the first, which was adopted in the opinion under review, being
as follows :
Exhibit A is an adjustment upon the theory that the company takes under the
original grant from Cedar Rapids, and that the only additional right given the com-
pany under the act of 1864 was to satisfy deficiencies within the grant in place, by
resorting to the even numbered sections within the six mile limits and both even and
odd within the fifteen mile limits, and if there was still a deficiency to resort to the
even and odd sections along the modified line within twenty miles thereof. Under
this settlement there have been excess approvals to the company of 57,570.24 acres.
To understand the real position of the company it is necessary to
review, somewhat, the history of the grant.
The Iowa Central Air Line Company, upon which the State originally
conferred the grant, filed a map of definite location of the line of road
October 31, 1856, which was dul^' accepted and upon which the limits
of the grant were adjusted and withdrawal ordered.
The road provided for by the act of 1856 was —
from Lyons City to a point of intersection with the main line of the Iowa Centrml
Air Line Railroad, near Maquoketa, thence on said main line, running aa near as
practicable to the forty-second parallel across the State, to the Missouri River.
Said Air Line Company failed to construct any part of the road and
the State resumed the grant in 1860 and conferred the same ui>on the
Cedar Bapids and Missouri Eiver Bailroad Company.
Prior to this time, however, a road had been built by the Chicago,
Iowa and Nebraska Bailroad Company (not a land grant road), from a
point on the Mississippi Biver within three miles of Lyons City to Cedar
Bapids, and practically upon the location theretofore made between
said points by the Iowa Central Air Line Company.
DECISIONS RELATING TO THE PUBLIC LANDS. 127
The Cedar Kapids Company therefore began the construction of its
road at Cedar liapids and, prior to the year 1SG4, had completed about
one hundred miles, or, as appears from j'our letter, to Nevada, Iowa.
This was the condition of affairs at tlie time of the x)assnge of the act
of June 2, 1864 (supra), the fourth section of which provides:
That tlie Cedai Rapids and Missouri River Railroad Company, a corporation estab-
lished under the laws of the State of Iowa, and to which the said state granted a
portion of the land mentioned in the title to this act, may modify or change the
location of the uncompleted portion of its line, as shown by the map thereof now on
file in the general land office of the United States, so as to secure a better and more
expeditions line to the Missouri River, and to a connection with the Iowa branch of
the Union Pacific Railroad ; and for the purpose of facilitating the more immediate
construction of a line of railroads across the State of Iowa, to connect with the Iowa
branch of the Union Pacific Railroad Company, aforesaid, the said Cedar Rapids
and Missouri River Railroad Company is hereby authorized to connect its line by a
branch with the line of the Mississippi and Missouri Railroad Company ; and the
aaid Cedar Bapids and Missouri River Railroad Company shall be entitled for such
modified line to the same lands and to the same amount of lands per mile, and for
sacb connecting branch the same amount of land per miloi as originally granted to
aid in the construction of its main line, subject to the conditions and forfeitures
mentioned in the original grant, and, for the said purpose, right of way through the
public lands of the United States is hereby granted to said company. And it is fur-
ther provided, That whenever said modified main line shall have been established or
such connecting line located, the said Cedar Rapids and Missouri River Railroad
Company shall file in the general land office of the United States a map definitely show-
ing such modified line and such connecting branch aforesaid ; and the Secretary of the
Interior shall reserve and cause to be certified and conveyed to said company, from
time to time, as the work progresses on the main line, out of any public lands now
belonging to the United States, not sold, reserved, or otherwise disposed of, or to
which a pre-emption right or right of homestead settlement has not attached, and
on which a bona fide settlement and improvement has not been made under color
of title derived from the United States or from the State of Iowa, within fifteen
miles of the original main line, an amount of land equal to that originally authorized
to be granted to aid in the construction of the said road by the act to which this is
an amendment. And if the amount of lands per mile granted, or intended to be
granted, by the original act to aid in the construction of said railroad shall not be
found within the limits of the fifteen miles therein prescribed, then such selections
may be made along said modified line and connecting branch within twenty miles
thereof: Provided, hotoever, That such new located or modified line shall pass through
or near Boonsboro", in Boon county, and intersect Boyer river not further south
than a point at or near Dennison, in Crawford county: And Providedf further, That
in case the main line shall be so changed or modified as not to reach the Missouri
River at or near the forty-second parallel north latitude, it shall be the duty of said
company, within a reasonable time after the completion of its road to the Missouri
river, to construct a branch road to some point in Monona county, in or at Onawa
City ; and to aid in the construction of such branch the same amount of lands x>er
mile are hereby granted as for the main line, and the same shall be reserved and
certified in the same manner; said lands to be selected from any of the unappropri-
ated lands as hereinbefore described within twenty miles of said main line and
branch ; and said company shall file with the Secretary of the Interior a map of the
location of the said branch: And promded further, That the lands hereby granted to
aid in the construction of the connecting branch aforesaid shall not vest in said
company nor be encumbered or disposed of except in the following manner : When
the governor of the State of Iowa shall certify to the Secretary of the Interior that
128 DECISIONS RELATING TO THE PUBLIC LANDS.
said company bas completed in good ranning order a section of twenty consecntiTe
miles of the main line of said road west of Nevada, then the Secretary shall convey
to said company one third, and no more, of the lands gpranted for said connectin*;
branch. And when said company shall complete an additional section of twenty
cousecative miles, and famish the Secretary of the Interior with proof as aforesaid,
then the said secretary may convey to the said company another third of the lands
granted for said connecting branch; and when said company shall complete an
additional section of twenty miles, making in all sixty miles west of Nevada, the
secretary, npon proof famished as aforesaid, may convey to the said company the
remainder of said lands to aid in the construction of said connecting branch : Pro-
vided, however, That no lands shall be conveyed to said company on account of said
connecting branch road until the governor of the State of Iowa shall certify to the
Secretary of the Interior that the same shall have been completed as a first-class
railroad. And no land shall be conveyed to said company sitaate and lying within
fifteen miles of the original line of the Mississippi and Missouri Railroad, as laid
down on a map on file in the general land-office : Provided, further. That it shall be
the duty of the Secretary of the Interior, and he is hereby required, to reserve a
quantity of land embraced in the grant described in this section, sufficient, in the
opinion of the governor of Iowa, to secure the construction of a branch railroad
from the town of Lyons, in the State of Iowa, so as to connect with the main line
in or west of the town of Clinton in said state, nntil the governor of said state shall
certify that said branch railroad is completed according to the reqairements of the
laws of said state : Provided, further. That nothing herein contained shall be con-
strued as to release said company from its obligation to complete the said main line
within the time mentioned in the original grant: Provided, further, That nothing in
this act shall be construed to interfere with, or in any manner impair, any rights
acquired by any railroad company named in the act to which this is an amendment,
or the rights of any corporation, person or persons, acquired through any such com-
pany ; nor shall it be construed to impair any vested right of property, but such
rights are hereby reserved and confirmed : Provided, however. That no lands shall be
conveyed to any compariy or party whatsoever, under the provisions of this act and
the act amended by this act, which have been settled upon and improved in good
faith by a bona fide inhabitant, under color of title derived firom the United States
or from the State of Iowa adverse to the grant made by this act or the act to which
this act is an amendment. But each of said companies may select an equal quantity
of public Lands as described in this act within the distance of twenty miles of the
line of each of said roads in lien of lauds thus settled upon and improved by bona
fide inhabitants in good faith under color of title as aforesaid.
While this act aathorized a chauge in the location of the unconstructed
portion of the road, yet, it still provided that it should be built to the
Missouri Elver, but permitted a change in order to secure a ''more
expeditious line."
The Pacific railroad system was not in existence at the time of the
passage of the original act under which this company claims, viz., May
15, 1856, and a further and new object was included in the legislation
made by the act of 1864, viz., a connection with the Iowa branch of the
Union Pacific Railway.
To accoinx)lish this latter purpose a branch line was provided for, on
account of which a new grant was made, and this branch is referred to
as the ''connecting branch."
By the act of 1856 the line was to run as near as practicable to the
forty-second parallel across the State of Iowa. Measurement made of
DECISIONS REJ.ATING TO THE PUBLIC LANDS. 129
tbe locations shows that the old line of 1856 diverges to the north of
that parallel tweuty-foar miles, while the modified line diverges to the
soath thirty miles, measured to a connection with the Sioux City and
Pacific liailroad at California Junction.
By letter of July 5, 1805, William T. Steiger, as agent of the com-
pany, filed in this Department a map showing the amended line of loca-
tion of said Cedar Rapids and Missouri River Railroad.
Said letter contained the following: '
I have the honor to traDSuiit herewith the letter of W. W. Walker, Esq., Vice
Preeident Cedar Rapids aod Mo. Riv. R. R. Co., addreesed to you on the 19th instant,
together with the accompnnying maps daly authenticated of the amended route of
said road from Cedar Rapids to the Missouri River, which I heg leave to plare on
tile as the hasis of the adjustment of the additional grant of 2nd June 1864.
This map shows a connection with the ISioux City and Pacific Rail-
road at California Junction, about three miles from the Missouri River,
and with this connection the river is reached as the Sioux City and
Pacific Railroad crosses the Missouri River.
By letter of December 19, 1867, Hon. J. I. Blair, President of the
Cedar Rapids and Missouri River Railroad, filed a second map, with a
request that it be attached to the one before filed.
This map shows a line leaving the location made in 1865, at Missouri
Valley, about six miles east of California Junction, and runs nearly
due south for about twenty-one miles to a connection with the Missis-
sippi and Missouri River Railroad, now the Chicago, Rock Island and
Pacific Railroad, at Council BlufiTs.
It is claimed by the company that this piece of road last described
should be considered as a part of the amended main line.
This contention, if granted, makes the amended line, as constructed,
271.6 miles long, and it is claimed that this becomes the basis for
the adjustment of the grant under the act of 1864, which is to be sat-
isfied firom the limits of the old location of 1856, as far as possible, the
deficiency to be made up along the limits of the modified line, and that
this deficiency is not only of lands lost in place along the old location,
but that the constructed line, being longer than the old location, the
grant was commensurably increased, and that this increase is to be
also taken along the modified line.
In the decision under review it was held that (syllabus) :
The grant to the State of Iowa hy the acts of May 15, 1856, and Jane 2, 1864, is a
grant in place, the extent of which is determined by the location nnder the original
grant, and the amount of lands earned thereunder ascertaine<l by the line of road
constrncted west of Cedar Rapids, with the additional right under the act of 1864,
to satisfy deficiencies within the grant in place by resorting to eyen numbered sec-
tions lAthiu the six mile limits, and both even and odd within the fifteen mile
limits, and if there is still a deficiency to resort to the eyen and odd sections along
the modified line within twenty miles thereof.
After a careful review of the matter this position is adhered to, and
even if the company's contention as to the length of the modified line
10671— VOL 24 9
130 DECISIONS BELATING TO THE PUBLIC LANDS.
l>e acceded to, yet, the graut made by the act of 1856 for the main
line cannot be enlarged nnder the terms of the act of 1864 for the
^^modified main line.'^
For this modified main line the company was to be entitled ^*- to the
-same lands and to the same amount of lands per mile," and it was
provided that —
-the Secretary of the Interior shall reserve and cause to be certified and conveyed
tto said company, from time to time, as the work progresses on the main linei . . .
'Within fifteen miles of the original main line, an amount of land equal to that orig-
inally authorized to be granted to aid in the construction of the said road by the act
to which this is an amendment. And if the amount of lands per mile granted, or
intended to be grante<l| by the original act to aid in the construction of said railroad
shall not be found within the limits of the fifteen miles therein prescribed, then
such selections may be made along said modified line and connecting branch within
twenty miles thereof.
The act of 1856, fourth section, provides that —
And when the governor of said State shall certify to the Secretary of the Interior
that any twenty continuous miles of any of said roads is completed, then another
quantity of land hereby granted, not to exceed one hundred and twenty sections
for each of said roads having twenty continuous miles completed as aforesaid, and
included within a continuous length of twenty miles of each of such roads, may be
«old, and so from time to time until said roads are completed; and if any of said
roads are not completed within ten years, no further sale shall be made, and the
lands unsold shall revert to the United States.
Under this legislation, when twenty miles were certified as conslxacted
along the modified main line, the company was authorized to sell one
hundred and twenty sections along the original location, if the same
shall be found within a continuous line of twenty miles along said origi-
nal location, and so on until the entire road was built.
No new grant in place was made along the modified main line, but
the lands within twenty miles thereof might be resorted to in order to
satisfy any deficiency not to be found within the limits along the original
location.
While it is undoubtedly true, as held by the supreme court in the Her-
ring case (110 U. 8., 27), that "it has been the invariable policy of Con-
fess to measure the amount of public lands granted to a land-grant
railroad by the length of the road as actually constructed, and not by
its length as originally located," when the entirchne as originally located
is not constructed, as was the case with the Oedar Bapids grant, yet, it
has never been held by that court that the grant, where one in place, as
is the grant of 1856, which acquired precision by location, can be
enlarged, by showing that the constructed road is longer than tlie
located line.
In my opinion, however, the modified main line as provided for in the
.act of 1864, was designed to be a more direct and shorter route to the
Missouri River than that shown by the location made under the act of
1856; further, that the location shown upon the map of 1865, satisfies
DECISIONS RELATING TO THE PUBLIC LANDS. 131
the terms for the modified main line, and that the location shown upon
the map filed in 18G7, was intended for, and should be held to be the
** connecting branch," provided for in the act of 1804, for which a new
grant was made, but which mast be satisfied from the lands within
twenty miles thereof
It is true that the supreme court, in the Herring case (supra), held
that the map of 18G5 showed only a ])art of the modified line and that
it was not completed until the filing of the map on December 1, 1867
(evidently meaning the map filed December 19, 1867)) and the company
urges that this holding is conclusive upon the Department, and that
the line between Missouri Valley and Council Bluffs must be recognized
as a part of the modified line and not as the connecting branch.
The question before the court in said case involved the recognition of
certain entries made after the location of 1865.
As before stated, the act of 1864 had two objects, viz., the building
of a more expeditious line to the Missouri River and the connection of
this line with the Mississippi and Missouri River Railroad so as to form
a running connection with the Iowa branch of the Union Pacific Rail-
way; further, it coupled the two together so as to require that both
objects be accomplished.
This is clearly shown from several provisions of the act of 1864.
To provide against the abandonment of the main line west of the
point at which the connecting branch might be established, the act of
1864 provided, that the lands should not be conveyed on account of the
connecting branch except upon the condition that —
When the governor of ihe State of Iowa shall certify to the Secretary of the
Interior that said company has completed tn good ranning order a section of twenty
consecntive miles of the main line of said road west of Nevada, then the Secretary
shall convey to said company one-third, and no more, of the lands granted for said
connecting hranch. And when said company shall complete an additional section
of twenty consecutive miles, and famish the Secretary of the Interior with proof as
aforesaid, then the said Secretary may convey to the said company another third of
the lands granted for said connecting hranch ; and when said company shall com-
plete an additional section of twenty miles, making in all sixty miles west of
Nevada, the Secretary, upon proof famished as aforesaid, may convey to the said
company the remainder of said lands to aid in the construction of said connecting
branch.
It further provided —
That snch new located or modified line shall pass throngh Boonsboro', in Boon
coanty, and intersect the Boyer river not further south than a point at or near
Dennison, in Crawford county.
Again, in the matter of the location of the modified line and the
connecting branch, it provided —
That whenever said modified main line shall have been established or such con-
necting line located, the said Cedar Rapids and Missouri River Railroad Company
shall file in the General Land Office of the United States a map definitely showing
such modified line and such connecting branch aforesaid.
132 DECISIONS RELATING TO THE PUBLIC LANDS.
As the act requires that the company shall file a map of the modified
line and connecting branch before a withdrawal was to be made, it wrs
perhaps this fact, viz :, the coupling of the two, that led the court to
hold that until the filing of the map in 1867, the whole line of the road
was not established.
While the court uses the term ^'modified line,'' it does not seem to
have been used in the restricted sense as relating to the modified main
line, but rather the entire line necessary to accomplish the full phri)oscs
of the grant.
That the portion of the road between St. John and Council Itluffs
was not considered by the company as a part of the modified main
line, is clearly show from a brief filed by William T. Steiger in 1873, as
attorney for the company, before the committee of i)ublic lands in the
United States Senate, relative to a bill affecting the grant for the
Onawa branch of said road, copy of which is found in the papers on
file in yonr ofiice relative to said road.
In this brief he states, on page eight, under the fourth objection to
the proposed legislation, as follows:
The Onawa City branch was huilt, and the best connection — indeed for engineer-
ing reasons the only one — thereby made between the company's new line uf road
and the city, which branch, with that required by the law to connect with the
Mississippi and Missouri road, secured to Onawa City almost a direct connection,
not only with the Cedar Rapids line of road, but also with Council Bluffs, and that
important point in the great through line of the Mississippi and Missouri, (novr
Chicago, Rock Island, and Pacific road,) as will be seen on inspection of the maps
on file in the Department of the Interior.
In order that the attorney's i)08ition may be fully understood I have
attached a reduced copy of a map that accompanied the report.
As to the previous position of the Department on the question I
have but to refer to letter written by Commissioner Burdett to Hon.
Addison Oliver, House of Representatives, dated January 19, 187G, in
which it is stated :
Your second question is, ''Where does the 'modified line' of said company, under
act of June 2d, 1864, begin, and terminate f How long is it and how much land has
it received therefor f*
The modified line begins at Cedar Rapids, or near there, at the western terminus
of the line built prior to 1864, and terminates at Missouri Valley, indicated on tbe
map by the letter D.
From what has been said it is apparent that the approvals heretofore
made on account of this grant for the modified main line, are in excess
of that granted by the acts named, and that suit will be necessary.
I have therefore to modify the previous decision of this Department
in so far as to direct that the portion of the road between Missouri Valley
and Council Bluffs be not considered as a part of the modified main
line, but as the "connecting branch," for which a new grant was made
by the act of 1864, but which must be satisfied from the lands within
twenty miles thereof.
DECISIONS BELATIN6 TO THE PUBLIC LANDS.
133
This branch is all withiu the fifteen mile limits of the grant for the
Mississippi and Missouri Eiver Eailroad, and the act of 1864 provides
that '^no land shall be conveyed to said company situate and lying
within fifteen miles of the original line of the Mississippi and Missouri
Bailroad, as laid down on a map on file in the General Land Office.''
46 45 44- 43 42 41 40 39
I learn upon inquiry at your office that limits were never established
upon this line and presumably for the reason above given.
This, however, is not the question before the Department, as the
company does not seem to be now claiming anything on account of the
"connecting branch,'' as such.
134 DECISIONS RELATING TO THE PUBLIC LANDS.
This disposes of the first three assignments of error.
The fourth assignment is — '
The tinding and holding that the 2,569.75 acres erroneoasly certified to the railroad
company, they having been theretofore disposed of by the United States being out-
standing must remain a charge to the grant unless reconveyed to the United States
by said company.
It is clear that certifications made on account of this grant after
patents had issued to other parties conveyed no title, and strictly
speaking cannot be considered as a charge upon the grant, but as the
grant was in process of adjustment, if the company claimed the lands
a final adjustment would be impossible until the rights of the company,
not under the certifications but under its grant, had been determined.
If the company lays no claim to these lands, a simple release or quit
claim would remove the cloud from the title of the first patentees, and
thereupon the company would be relieved of the charge made in part
satisfaction of its grant.
The fifth and last assignment of error ii
The finding and holding that the 76,916.75 acres certified to the State and sold by
the Iowa Central Air Line Railroad Company out of the grant of 1856, prior to
resumption by the State of Iowa, and to the enactment of the grant of 1864, should
not be deducted from the grant made for the modified line by the act .of Jnne
2, 1864.
The company's contention in support of this assignment rests u]K>n
the assumption that the act of 1864 made an entirely new grant for the
nnconstructed part of its road free from any charge on account of the
grant of 1856, to which I am unable to accede.
As stated in the opinion under review —
These lands were certified on account of the grant made by the act of 1856, and
this claim for deduction seems to rest upon the ground that the company receiTing
the lands did not earn the same, and that the present company neyer received any
benefit from such certification, and therefore should not be charged with the same.
Having held that the purpose of the act of 1864 was merely to enlarge the source
from which the amount of lands granted by the act of 1856 might be satisfied, it
follows that indemnity can not be allowed for lands certified under the act of 1856
and prior to the passage of the act of 1864, and this claim for deduction must be
denied.
After a very thorough investigation and careful consideration of the
legislation upon the subject of this grant and of the decisions of
the court and this Department relative thereto, I see no reason to
depart from the previous decision of this Department, except in the
particulars herein named, and the motion is therefore accordingly
denied, and you are directed to revise the adjustment in accordance
with the directions herein given.
The excess in approvals should be identified, after which formal
demand should be made upon the company for reconveyance of the
lands, or, in the event that they have been disposed of to bona fide
purchasers, for their value.
DECISIONS RELATING TO THE PUBLIC LANDS. 135
HOMSSTEAB ENTRY-AMENDMEN'»-ADVER8E CLAIM.
CALLIOOTTE V. Geeb.
The right to amend an entry to correspond with the settlement, may be awarded a»
against an intervening entrymau if priority of settlement is shown by the appli-
cant, and it does not appear that he is estopped by bis own acts f^om setting n^
his right as against the adverse claimant.
Secretary Francis to the Commissioner of the General Land Office, Jan-
(I. H. L.) uary 18, 1897. (C. J. W.)
On September 27, 1893, plaintiff Callicotte made homestead entiy^
No. 947, for the SB. J of Sec. 12, T. 27 N., R. 1 W., Perry, Oklahoma,
under the mistaken apprehension, as he alleges, that this was the
proper description of the quarter section on which he had made settle-
ment on the day of the opening, September 16, 1893. On September
23, 1893, defendant Geer made homestead entry, No. 607, for the NE. i
of Sec. 12, T. 27 N., R. 1 W., which turned out to be the quarter section
on which Callicotte made settlement on the day of the opening. After
the discovery of the mistake, on November 18, 1893, Callicotte made
application to amend his entry, so as to substitute the land entered by
defendant, to wit, the NE. J of Sec. 12, T. 27 N., R. 1 W., for that entered
by himself through mistake, and on the same day he filed affidavit of
contest against defendant's entry, alleging prior settlement. By direc-
tion of your office, action on the application to amend Callicotte's entry
was withheld to await final disposition of his contest, and a hearing
ordered for that purpose on February 23, 1895, both parties being
present. The plaintiff closed his testimony on February 25, 1895, and
defendant, without offering any testimony, moved to dismiss the con-
test. The local officers overruled the motion, and thereafter rendered
a decision in favor of contestant, and recommended the cancellation o£
defendant's entry. From this decision Geer appealed, and on Septem-.
ber 18, 1895, your office affirmed the decision of the local officers, and
held defendant's entry for cancellation. Defendant made further appeal
to the Department, and the case is now to be considered.
The following allegations of error are made:
Ist. That it was error to hold that the initial acts of settlement claimed hy Calli-
cotte were followed within a reasonable time hy residence and improvements.
2d. Error in not holding that contestant had exhausted his homestead rights, in
making homestead entry npon the adjoining tract of land.
3d. Error in awarding to contestant preference right of entry over defendant an<f
holding this entry for cancellation.
4th. Error in not holding that plaintiff was estopped by his acts in making ont
defendant's application to enter from setting up a prior claim against defendant.
It appears firom the record that Callicotte's entry, -NTo. 947, made by
mistake for the wrong land, was contested by a man named Sheror, and
that without pecuniary consideration Callicotte relinquished this entry.
13ff DECISIONS RELATING TO THE PUBLIC LANDS.
Since your office decision was rendered, and pending the consideration
of the case here, defendant Geer has filed an affidavit, under date of
March 17, 1896, in which he charges that plaintiff has since the hearing
abandoned the land, and asking for leave to submit proof as to the
Same, and that the case be re-oi)ened for that puri)08e. This motion
can not be entertained, and the case will be disposed of on the record
as it exists.
The evidence shows that a little before one o^clock P. M., on Septem-
ber 16, 1893, the plaintiff reached the land in controversy, with a valise,
canteen, coffee-sack of provisions, frying pan, blanket, umbrella, a
spade and axe; that there was no one on the land at the time, and that
be set his umbrella up as a stake and left his other things with it, and
went over to a crowd of men a fourth of a mile away and introduced
himself and took their names; that while talking to these men, he saw
a wagon drive up about a foui*th of a mile north and west of his stake:
that a man got out of the wagon and came to where they were talking;
that plaintiff took his name and gave his, and called attention of the
men to witness that he claimed the land where his stake (umbrella) was
stan'ding, and that if the man who was on the wagon was on his tract,
they knew that plaintiff was there first. The man gave his name as
(reer (defendant in this case^; that defendant replied that he did not
come there to make trouble, and that if he was on plaintiff's claim, he
would not cause him trouble. This occurred thirty to fift}'' minutes
after plaintiff' set his stake. The question of wood and water then
arose, and there being no spade or axe, except plaintiff's, it was arranged
to go to the creek half a mile east and dig for water and get wood.
Defendant drove his team by plaintiff's stake, and got his spade and
axe, and drove to the creek, where they dug for water, and got a load
of wood, and went back to where Geer had first stopped with his wagon,
and camped all night. Next morning plaintiff and Geer attempted to
locate the lines and corners of the tracts, and came to the conclusion
that plaintiff was on the SE. ^ of Section 12, and that defendant was
on the NE. |; plaintiff threw up a mound, three feet in diameter and
a foot and a half high, on which he planted a stake, with a white flag
attached, and then he and defendant started to the land office to file,
arriving there Sunday night, September 17, 1893. Plaintiff formed a
company (No. 181), consisting of himself (No. 1), defendant next, and
then others, until the number reached ten. Plaintiff' being a lawyer,
made out his own and defendant's papers. Defendant left his place in
company No. 181, and got a place in another company, and was thereby
enabled to file on September 23, 1893, four days earlier than he could
have filed if he had remained in company No. 181. About October 1,
1893, plaintiff first learned that he had made a mistake, and had filed
on the SE. ^ of Sec. 12, instead of the NE. ^, where his stake was still
standing, and when he made out defendant's ])aper8 he did not know it
was for the land on which he (plaintiff*) had settled. About October 1^
DECISIONS RELATING TO THE PUBLIC LANDS. 137
18d3, plaintiff plowed one acre near his stake on the land, amd about
the 1st of November following he plowed around the whole tract, and
built a sod house. On December 14, 1893, he went ui)on the land, with
horses, wagons, plows, harrow, cooking utensils, stove, and bedding,
and proceeded to build a house, in which he and his eldest sou resided,
until he built a six-room house, into which he moved, with his family,
January 15, 1894. He has fenced the whole of the tract, dug a well,
and plowed and cultivated fifty acres. The improvements are worth
seven or eight hundred dollars. Upon this state of facts the defendant
insists that the plaintiff is not entitled to the land, and that it was
error to so hold. There can be no question under the record but that
plaintiff was the prior settler on the land. His acts of settlement were
sufficient to segregate the land, and were followed in due time by resi-
dence and valuable improvements.
Unless the plaintiff has done something which will operate against
him as an estoppel, he is entitled to all the rights of a prior settler
upon the land. Two things are insisted upon by way of estoppel:
First. That plaintiff has exhausted his homestead right, notwithstand-
ing bis relinquishment, without compensation, of the entry made by
mistake. Second. That having assisted defendant in preparing his
entry papers, he is estopped from attacking the entry. It is perfectly
apparent that this controversy grows out of the mutual mistake of the
parties as to the proper description of the quarter-section on which
their resi>ective settlements were made. There is* no fraud connected
with the acts of either, and it is clear that the mistake in the descrip-
tion of the land entered by each was an honest mistake upon the part
of both. It was mutual, and neither can be either benefited or injured
by it, in reference to the other. The entry by plaintiff of the SE. J,
ux)on which he had not settled, and upon which another party was, at
the time, a settler (plaintiff^s entry being the result of a mistake), did
not exhaust his homestead rights, and upon relinquishment of such
mistaken entry, without any benefit, it ceased to be a legal hindrance
to a second entry. There is, therefore, no reason why the rights of
these two parties should not be made to depend upon the priority of
their origin. As defendant has introduced no testimony, and shown
no actual settlement, it is a mere question of whether plaintiff's settle-
ment antedated defendant's entry. This fact appears from the evi-
dence, yonr office so found, and your office decision is affirmed.
138 DECISIONS RELATING TO THE PUBLIC LANDS.
VLAlUiOJLD GRAJTT-PATENT-SUCCESSOR IN INTEBEfiTT.
NoBTHEftN Pacific R. R. Co.
Under the graDt to the Northern Pacific Railroad Company patents should iasne to
that company and not to a grantee thereof.
In the preparation of lists of lands granted to aid in the constmction of railroadB,
the lands should be listed to the grantee company or corporation when it is in
existence.
Secretary Francis to the Commissioner of the General Land Office, Feb-
ruary 6, 1897. (J. I. P,)
From time to time there have beeu transmitted from voor office for
the consideration and approval of this Department varions lists of
lands selected by the Northern Pacific Railroad Company as inuring to
the Northern Pacific Railway Company as the successor of the ^lorthem
Pacific Railroad Company under the grant to that company of July 2y
1864, and the joint resolution of May 31, 1870.
It has been invariably held by this Department that a right to a
patent from the United States will not be traced beyond the original
grantee. Re Harrison (2 L. D., 707) ; re Tower (2 L. D., 779; 12 L. D.,
116). There are obvious reasons for this ruling of the Department,
If the duty of examining into the sufficiency of transfers m ide from
time to time by the railroad corporations, of the country, or by the
settlers upon the public lands after a right of disposition shall have
accrued, be assumed by this Department, a mass of qtuisi judicial work
must be disposed of which will seriously embarrass the ordinary admin-
istration of its affairs. ^
Moreover, under the law as it now stands, if this Department erro-
neously certifies lands to a railroad corporation, which are not included
within the grant, the certification is void; but if the list be certified m
favor of a bona fide grantee the title of the grantee is good and the
only recourse of the government is against the corporation. In many
cases such recourse would be unavailing. I therefore conclude, for
administrative reasons, that it will be unwise to certify lists in favor of
the Northern Pacific Railway Company.
Upon careful consideration of the language of the grant to the
Northern Pacific Railroad Company, I do not think it my duty to patent
lands to a grantee of that company. The act provides in terms that
patents shall be made to the Northern Pacific Railroad Company, and
although the grant is to said company, its successors and assigns, yet
I do not believe that the Department can be required to depart from
the ordinary course of business heretofore followed in other cases.
In view of the foregoing I am of the opinion that in the preparation
of lists of lands, granted to aid in the construction of railroads, the
lands should always be listed to the grantee company or corporation
when it is in existence. If the grantee company or corporation has
DECISIONS BELATINQ TO THE PUBLIC I.Al!m6« 139
ceased to exist or has been absorbed or amalgamated or identified with
another company or corporation, then it might be proper to list the
lands to the latter company as snccessor of the grantee company or
corporation. Bnt when the lands are so listed the preamble of the list
shoald clearly set forth the character of the evidence upon which that
action is based, for the information of the Secretary of the Interior,
whose approval of such lists may be asked.
You are therefore directed to be governed in the future by these
instructions in preparing for my approval list of lands granted to aid
in the construction of railroads.
CONFIRMATIOX-SECTION 7, ACT OF MARCH 3, 1801-PATENT.
Smith et al. v. Murphy's Heirs.
As between a purchaser from the entryman and one holding under a subsequent tax
sale of the land, the benefit of the confirmatory proyisions of section 7, act of
March 3, 1891, must be accorded to the holder of the tax title.
Under an entry confirmed by said section, patent should issue in the name of the
entry man, though his death may be disclosed by the record.
Secretary Francis to the Commissioner of the General Land Office^ Feb-
(I, H. L.) ruary 6y 1897. (P. J. O.)
The land involved in this controversy is the SW. J of the NE. J, Sec.
32, Tp. 20 S., E. 65 W., Pueblo, Colorado, land district.
There being bnt a single question involved in this stage of this con-
troversy, it is not necessary to recapitulate all the record facts in
relation to the history of this tract. It is only necessary to state such
facts as will give a clear uuderstanding of the single issue.
It appears that on !Noveinber 9, 1873, James Clark made pre emption
cash entry of the tract, and on the same day, for a valuable consider-
atiouy transferred the same to Margaret Murphy,- that Muri)hy died
February 1, 1879; that Clark also departed this life during that year.
As the result of a contest against the entry of Clark, by one T. F.
McAllister, which was finally dismissed by your ofSce, and no appeal
taken, the heirs of Margaret Murphy, pending the contest, applied to
have the entry confirmed and passed to patent under section 7, act of
March 3, 1891 (26 Stat., 1095). Daniel L. Smith and B. Sweet also
made a similar application, on the ground that they were transferees
of the title of Margaret Murphy, by reason of the fact that they had
purchased the land from Pueblo county, which had bid it in at a tax
sale, and subsequently transferred it to Smith, who deeded to Sweet
an undivided half interest in the tract.
In deciding these questions presented, your office held that:
From the abstract of title covering the above land and filed in this case, and the
affidavits of James Murphy and the heirs of Margaret Murphy, deceased, as far as
heard from, I find that said land has not been reconveyed to said James Clark, nor
140 DECISIONS RELATING TO THE PUBLIC LANDS.
to his heirs, that the heira of Margaret Murphy uotified, ask for coofirmation of
eaid entry nnder the seventh section of the act of March 3, 1891. I further find that
final receipt was issued to said James Clark November 9, 1878, and that he disposed
of tho same after final entry to a bona fide purchaser, for a valuable consideration,
before the first day of March, 1888. Said entry will, therefore, be approved for
patent by virtue of the 7th section of the act of March 3, 1891, and the same will be
passed to patent for the heirs of James Clark, deceased. The contest of McAllister
is dismissed.
Notify the parties of this decision, and McAllister and Smith and Sweet of their
right of appeal.
Whereupon, Smith and Sweet prosecute this appeal, alleging error
in holding that they were not transferees within the meaning of said
section 7, and error in holding that the heirs of Murphy had any
interest whatever in the land.
It is clear that the heirs of Clark have no interest in this tract. He
had conveyed all his interest prior to his death, and there was there-
fore nothing to descend to his heirs. The decision of your office, there-
fore, that the entry "will be passed to patent for the heirs of James
Clark,'' is clearly erroneous. I take it that this order was made in
view of the doctrine announced in Clara Huls (9 L. D., 401), wherein
it was decided that " where the death of the homesteader is disclosed
by the record, patent should issue in the name of the heirs generally."
But that ruling was modified subsequent to the decision of your office
in Joseph Ellis (21 L. D., 377), wherein it was held that patent sboiild
issue in the nsime of the entryroan, though his death be disclosed by
the record.
The entry of Clark comes clearly within the confirmatory provisions of
section 7. But the question is, whether it should be confirmed in the
interest of the Murphy heirs, or the transferees of the land under the
tax sale by Pueblo county. It is assumed by counsel, both in the
specifications of error and the brief, that the judgment of your office
was in favor of the Murphy heirs.
Section 12, Chapter XCIX, General Statutes, State of Colorado, 1883,
provides :
Lands entered hy pre-emption, final homestead, at puhlic or private sale, or other-
wise, shall he sabject to taxation, whether patent for the same shall have been
issued or not, etc.
It appears by the abstract of title to the record that the land was
sold for taxes for the year 1879, on October 9, 1880, and by the treas-
urer or Pueblo county conveyed to the county, March 10, 188G; that
by order of the county commissioners the land was sold and conveyed
to Smith, December 11, 1888, who subsequently conveyed an undivided
one half of it to Sweet.
The legality or regularity of this sale is not questioned by the heirs
of Murphy. It therefore follows that it must be assumed that it was
legal and regular.
In Carroll v. Saflbrd (3 How., 441), the United States supreme court
DECISIONS RELATIKO TO THE PUBLIC LANDS. 141
held that land upon which final certificate was issued is taxable prop-
erty, notwithstanding patent has not issued, and may be sold for taxes.
This doctrine is followed with approval in Witherspoon v, Duncan, 4
Wall, 210; Wisconsin Central R. R. v. Price Co., 133 U. S., 496; and
Northern Pacific v. Patterson, 155 U. S., 130.
It is clear, therefore, that the heirs of Murphy have been divested of
their title to and interest in the land by reason of this tax sale, and it
follows that the entry can not be confirmed in their interest.
The title to the tract, having passed by a procedure and conveyance
recognized as sufficient to divest the Murphy heirs of their right, would
seem to be in Smith and Sweet, as contemplated by section 1; that is,
they are bona fide purchasers for a valuable consideration, and the
tract had been transferred by the entryman prior to March 1, 1888,
after final entry.
Your office judgment is therefore modified; the entry of James Clark
will be confirmed and passed to patent in his name.
RAILROAD GRANT— LAIfDS EXCEPTED-RELINQUISHMKNT.
Northern Pacific R. R. Co. r. St. Paul, Minneapolis and Man-
itoba Ry. Co.
An expired pre-emption filiog of record, at the date a railroad grant takes eAect,
excepts the land covered thereby from the operation of the grant.
The grant of March 3, 1871, was not odc in preeaenlif Init in futurOf taking effect oq
the delivery and filing of the relinqnishnient reqnired nnder the terms of the
grant.
Report called for from the General Land Office as to alleged excess indemnity selec-
tions in the second indemnity belt in the State of Minnesota.
Secretary Francis to the Commissioner of the General Land Office, Feb-
(1. H. L.) ruary 6, 1897. (E. M. R.)
Ou June 20, 1895, yonr office took np tor adjustment list Ko. 24,
indemnity, of the Northern Pacific Railroad Company, filed in the
local office on November 5, 1883. This list did not designate tract for
tract the lost land for which indemnity selections were made, but on
June 16, 1892, the company filed re-arranged lists No. 24 A, 24 B, and
24 O, describing the lost lands tract for tract.
From your said decision the St. Paul, Minneapolis and Manitoba
company filed three appeals: the first involving the NE. ^ of the SE. ^
of Sec. 29, T. 128 N., R. 35 W., St. Cloud laud district, Minnesota 5 the
second, involving the SE. J of Sec. 31, T. 128 N., E. 4 N., same land
district, and the third, involving the N. J of the NW. J, the SE. J of
the NW. i, the SW. J of the N W. J, and the S W. J of Sec. 13, T. 128,
B. 34, the SE. 4 of the NE.^ of Sec. 1, same township and range;
the NB. i of Sec. 6; the NW. J of the NE. i, the NE. J of the NW. J
and the SW. J of the NW. J of Sec. 11, same township and range, and
the N. } of the NE. 4 of Sec. 15^ same township and range.
142 DECISIONS RELATING TO THE PUBLIC LANDS.
The ground of error in the first appeal is that your office erred in
holding that the tract in question was excepted from the operation of
its grant by the pre-emption declaratory statement of one William
Belcher. ni)on this point your office decision says :
This tract is also within the primary limits of the grant for the St. Vincent
Extension company and was excepted from the grant by the pre-emption filing of
Wm. Belcher, made September 26, 1870, settlement alleged September 24, 1870 (19
L. D., 215), the Northern Pacific Railroad Company's application to select this tract
was accordingly aUowed.
It is urged in the appeal that the pre-emption filing in question could
have no effect as against the grant to the Manitoba company «^ because
it had ceased to be a subsisting claim at the date the grant to said
company became operative.''
It is alleged further —
In this case Belcher settled September 24, 1870, and filed his declaratory 8tate>
ment September 26, 1870. His pre-emption claim therefore expired and the land
became subject to entry as other public laud on September 24, 1871, which was prior
to the time when appellant's grant became operative.
This Department recently, in considering the case of Whitney r.
Taylor (158 U. S., 85), determined that the doctrine therein laid down
applied equally to expired as to unexpired declaratory statements.
The contention of the appellant is therefore not well taken.
In the second appeal it is urged that your office erred in holding that
the SE. 4 of Sec. 31, T. 128 N., R. 34 W., was excepted from the opera-
tion of the grant by the homestead entry of one Allen D. Bond. Upon
this land your office decision held :
This tract was excepted from the grant to the said company by the homestead
entry of Allen D. Bond, made November 1^ 1865, and canceled December 14, 1871
(19 L. D., 215). The application of the Northern Pacific Railroad Company to select
this land is allowed and the St. Paul, Minneapolis and Manitoba Railroad Company's
list No. 8, is held for cancellation to the extent thereof.
This land is within the indemnity limits of the grant for the Northern
Pacific Eailroad Company. It is also within the place limits of the St.
Paul, Minneapolis and Manitoba Railway Company, and the question
for consideration is : Did the rights of the said last named company
become operative from the date of the passage of the act of March 3,
1871 , which authorized the St. Paul, Minneapolis and Manitoba Bail-
way Company to relocate its St. Vincent extension?
Your office decision in citing the case of Hastings 'and Dakota Rail-
road Company v. Grinnell et al, (19 L. D., 215), which was based upon
the case of Bardon r. Northern Pacific Railroad Company (145 U. S.,
535), evidently assumed tbat the grant to this company was similar to
that of the Northern Pacific Railroad Company and was one in prce-
genii while in fact it was one in future, and became operative when the
relinquishment was made as required by that act. St. Paul and Pacific
Railroad Company v. Northern Pacific Railroad Company (139 U, S.,
1-16).
DECISIONS RELATING TO THE PUBLIC LANDS. 143
On December 13, 1871, the St. Paul and Pacific Railroad Company,
through its president and secretary, made, sealed, and signed the
release required by the proviso of the act aforesaid and this instrument
was filed in the Department on December 19, 1871, and was thereupon
accepted by this Department as a compliance with the requirements of
the act.
The rights of the St. Paul, Minneapolis and Manitoba Railway
Company to this tract of land de])end upon a determination of the
question as to when that relinquishment became effective. Was it
effective on the date of its being signed or on the date of its delivery
and filing in this Department? If it was effective on the date of its
being signed, the land is excepted from the operation of the grant on
behalf of this railroad company, as on that day the homestead entry of
Bond was uncanceled. If it became effective, on the other hand, only
on delivery, then the grant became operative on that date, to wit,
December 19, 1871, and as the map of definite location was filed in your
office on December 20, 1871, it appears that at both dates the record was
clear, the entry of Bond having been canceled on December 14th.
In the recent case of St. Paul, Minneapolis and Manitoba Railway
Company and Northern Paeific Railroad Company v. Bergerud, on
review (2:3 L. D., 408), it was held, that the relinquishment became
effective only with delivery, inasmuch as the relinquishment was in
effect a deed under the well-recognized rule of the few. Such being
the case, it would appear that your office decision was in error in refer-
ence to this tract and that it should have been awarded to the St.
Paul, Minneapolis and Manitoba Railway Company.
In reference to the third appeal taken by the appellant, consisting of
the N. i of the NW. J, the SE. f of the N W. i, the 8W. J of the FW. J,
and the SW. i, of Sec. 13, T, 128, R. 34 W. ; the SB. J of the NE. J of
Sec.l J the NB. J of Sec. 5; the NW. J of the NE. J, the NE. J of the
NW. J and the S W. J of the N W. J of Sec, 11 ; and the N. i of the NE. i
of Sec. 15, same township and range, it is urged that your office deci-
sion erred in holding that the land in question was subject to the selec-
tion of the Northern Pacific Railroad Company; second, in not holding
that said company has selected within its forty miles second indemnity
limits, a quantity m excess of the quantity it is entitled to select under
the provisions of the joint resolution of May 31, 1870, and the attention
of the Department is called to the fact that under the terms of the joint
resolution of 1870, the Korthern Pacific Railroad Company was author-
ized to select within such indemnity belt in any State, an amount of
land equal to the amount which it had failed to secure in its granted
limits within said State, subsequently to the passage of the act of July
2, 1864, and prior to the definite location of its road, and it is asserted
thatau adjustment of the grant for the Northern Pacific Railroad Com-
pany made by your office in 188G or 1887, shows that the company had
made within such indemnity limits in this State, selections of 40,000
144 DECISIONS RELATING TO THE PUBLIC LANDS.
acres in excess of the quantity sold or otherwise disposed of sabse-
qaently tx) July 2, 1864, and prior to the definite location of its road, and
that this excess is in addition to the further acreage of 84,000 aitres
awarded to said Northern Pacific Railroad Company by the supreme
court of the United States in the case of said St. Paul and Pacific Rail-
road Company u. The Northern Pacific Railroad Company (139 U. S., 1).
This raises for consideration a very serious question upon which the
Department is unable to pass on the record now before it. The case is
returned to your office and you will report to the Department all the
facts shown by the records of youi office bearing upon this question,
and a decision upon the question involved is reserved i>ending action
by the Department upon such report.
The decision appealed from is accordingly modified.
TnVTBER AXI> STONE ACT-ADVERSK CLAIM.
Bateman 17. Carroll.
The timber and stone act does not allow the purchase of land that is inhabited b a
bona fide settler.
Secretary Francis to the Commissioner of the General Land Office^ Feb
(L H. L.) ruary 6y 1897. (A. E.)
On June 16, 1893, John W. Carroll filed declaratory statement for the
S. J of the SW. i, Sec. 26, the E. ^ of the 8E. J, Sec. 26, T. 67 K., E. 19
W., Duluth, Minnesota, alleging settlement December 22, 1890.
On June 23, 1893, Edward J. Batemen applied to purchase the same
land under the timber and stone act. On November 29, 1893, notice of
Bateman's application to purchase was executed by the register of the
land office, and on December 11, 1893, a copy of said notice was served
upon Carroll's attorney. On January 6, 1894, publication of the same
was begun in a newspaper, the last publication being on March 10, 1894.
Action on the declaratory statement of Carroll, filed by him on June
16, 1893, when the township plat was first put on record, appears to
have been suspended, but on November 3, 1893, your office allowed the
declaratory statement to be filed without prejudice, and on November
25, 1893, Carroll's declaratory statement went of record.
On March 14, 1894, Carroll and Bateman each submitted final proof.
At this time Bateman moved to dismiss defendant's proof on the
ground of illegality of pre-emption filing. This motion was denied
because of your office instructions o^ November 3, 1893, allowing the
pre-emption filing to go of record without prejudice as of the time when
first filed.
A hearing was had on November 15, 1894. The register recom-
mended in favor of the timber claimant, and the receiver that the
timber filing be canceled. On appeal, your office held that:
The weight and nature of the evidence incline to the position that there are forty^
or fifty acres of stone, thirty to forty acres of swale, and 1,200,000 feet of pine timher
DECISIONS RELATING TO THE PUBLIC LANDS. 145
worth $1.50 per thousaud. In its present condition it in wholly unfit for agricultural
purposes, and is valuable chiefly for the timber upon it.
While Carroll claims to have selected tlie laud for a home, I am satisfied that the
contrary is true, and that the meager improvements were made ouly in order to lend
color to his claim.
Your office then held the declaratory statement of Carroll for cancel-
lation.
From this Carroll has appealed to the Department.
On June 23, 1893, when Bateman made his sworn statement that he
had personally examined the land in controversy, and that it was unin-
habited, Carroll was a resident upon the land, and your ofBce so finds.
This alone is sufficient to warrant the rejection of Bateman's applica-
tion to purchase the land under the timber and stone act, as the act
does not allow the purchase of land which is inhabited by a settler.
The residence and improvement of Carroll can not be presumed to be
in bad faith simydy because they were made in the wilderness. Many
populous communities tliroughout tlie western country were begun by
a pioneer making a settlement in what was then an almost inaccessible
locality. There is no evidence to show that Carroll's settlement was
made in bad faith, and you will therefore allow his final x)roof and
reject the application of Bateman.
Black Tomahawk v. Waldron.
On the report submitted under the investigation directed October 20,
1894, 19 L. D., 311, the former departmental decisions are adhered to,
and judgment rendered in accordance therewith, by Secretary Francis,
February 8, 1897.
BAIIgROAD GRANT— INUEMKITY SEL.EC?TIOX— AB^\:NI>0XMEXT.
Hastings and Dakota Ey. Co. v. Berg et al.
The failure of a railroad company to perfect an indemnity selection, within a reason-
able time after notice of final decision recoj^iziug the right of selection, must
be held to work an abandonment of its prior right, where the withdrawal has
been revoked, and an adverse rlaim interA'ened.
Secretary Francis to the Commissioner of the General Land Office, Feb-
a. H. L.) ruary 13, 1897. (F. ^^\ C.)
The Hastings and Dakota Ilailway Coini)auy appeals from your office
decision of March 2, 1893, involving the S. J of Sec. 3, T. 118 X., R. 45
W., in Marshall land district, Minnesota.
This land is within the twenty mile indemnity limits of the grant
made by the act of July 4, 186C (14 Stat., 87), to aid in the construction
10671— VOL 24 10
146 DECISIONS RELATING TO THE PUBLIC LANDS.
of the Hastings and Dakota Eailway, and was free from any adverse
entry or right at the time of the withdrawal (May 11, 1868), on account
of said grant.
In 1884 Albert McFarlane applied to enter the SW. J of said section,
and William Fraser the SE. J ; both of which applications were refused
by the local officers because in conflict with said withdrawal for railroad
purposes.
From this denial the applicants appealed.
July 12, 1886, said railway company applied to select both tracts,
specifying a basis for the selection and tendering the required fees for
said selection.
This application was also rejected by the local officers because in
conflict with the i>ending homestead applications aforesaid, and the
company appealed.
October 5, 1888, your office decided in favor of the company and that
it was entitled to select said lands, and refused the said homestead
applications. Fraser did not appeal. McFarlane appealed, and on
March 13, 1891, this Department affirmed your office decision (12 L. D.,
228), holding that the railroad company had the right of selection in
said lands.
May 22, 1891, the indemnity withdrawals to said railway grant were
revoked by departmental order (12 L. D., 641), as authorized by act of
September 29, 1890 (26 Stat., 496).
It is not claimed, after tbe decision by this Department of March 13,
1891, said railway company ever made any effort to perfect its selection
tendered in 1886, by making payment of selection fees or by making
new selection for the land.
February 26, 1892, Filing O. Berg made homestead entry No. 12,269
for the SE. J (the Fraser quarter).
May 7, 1892, Hans O. Berg applied to make homestead entry for the
SW. i (the McFarlane tract), which was refused by the local office
because the tract applied for had been selected by sjiid railway com-
pany July 20, 1886, as being within the twenty miles indemnity limits
of said road.
Hans O. Berg appealed, alleging that the railroad company had
never paid the selection fees nor completed its attempted selection of
July, 1886, and that as the company had failed to complete its selection,
and said land had been opened to settlement by the order of revocation
of May 22, 1891, his homestead application should be accepted.
It does not seem that notice of this appeal to the General Land Office
was served upon the railway company, but that defect has been waived
by its appearance herein by brief both before your office and this
Department.
The railway company does not seem to deny that it received noti<*e
both of the decision of your office and this Department, but urges, in
effect, that it was incumbent upon your office to advise the company
DECISIONS RELATING TO THE PUBLIC LANDS. 147
what steps should be taken id order to secure the acceptance of its
selection. Its resident counsel in his brief says :
When the Department found the land subject to selection on the company's appeal,
it became the duty of the Secretary or Commissioner to notify the company thereof,
and that the fees ivhich it had previously tendered to the local officers would now
he received, upon the payment of which the selection would be approved.
The company had exercised due diligence in the prosecution of its case by taking
its appeals in apt time, and it was entitled to notice of the action of the Department
as well as directions from it as to further requirements. The bounden duty of the
Department was manifestly to advise the railway company that the money would
now be accepted and its application to select allowed.
The records of the General Land Office show that notice of your office
decision of October 5, 188?^, was, on that date, given to all parties, and
that an ofiice letter dated April 7, 1891, gave resident counsel for said
company notice of the promulgation of the decision of this Department
in the McFarlane case.
The company was therefore duly and seas<^nably advised both of the
action of your office -and this Department in its favor, and was bouLd
to take proper steps within a reasonable time after said decisions to
perfect its right under its proffered selection of this land, and I cannot
agree with counsel that it was necessary that you should advise the
company as to the proper steps to be taken in order to complete its
attempted selection.
Your office decision in favor of the company became final, as to the
Fraser tract, in 1888, and as to the McFarlane tract, in the spring of 1 891,
but to the date of your office decision, March 2, 1893, the company had
taken no step to secure the acceptance of its proffered selection of 1886.
In the meantime the withdrawal made of its indemnity lands had
been revoked, and after the lapse of a year from the date of the last
decision in its favor Blling O. Berg wa« permitted to make homestead
entry of the Fraser tract and Hans O. Berg applied to enter the
McFarlane tract.
By its failure to cx>mplete its selection within a reasonable time after
decision in its favor, the indemnity withdrawal having been revoked, it
must be held that its laches worked an abandonment of its rights
under its list presented in 188C, in the presence of an adverse claim.
Your office decision is therefore affirmed.
SWAMP L.A]jrDS— EVERGLABES-SCHOOL. LANDS.
State of Florida.
A patent may issne to the State of Florida ander the swamp land act for the nnsnr-
Teyed tract known as the ''Everglades/' subject to the right of the State under
its grant of school lands.
Secretary Francis to the Commissioner of the General Land Office, Feb-
(I. H. L.) ruary 13^ 1897. (W. M. W.)
The Department is in receipt of a communication, dated December
22, 1896; from the Commissioner of Agriculture and State Land Agent
148 DECISIONS RELATING TO THE PUBLIC LANDS.
*
for the State of Florida, wherein he asks that patents issae for certain
lands in Florida known as the "Everglades," under the act of Septem-
ber 28, 1850 (9 Stat., 619).
On October 10, 1894, my predecessor found that the unsurveyed
body of lands lying within the State of Florida known as the "Ever-
glades" is in fact swamp land, and that a survey thereof is not practi-
cable, and he held that a patent may issue to the State under the
swamp grant, upon an estimated area designated by metes and bounds,
the State to furnish a meander survey of said "Everglades," accompa-
nied by satisfactory proof that said meander line does not include
within its limits lauds not of the character granted. See 19 L. D., 251.
See also State of Florida, 18 L. I)., 2G; State of Florida, 8 L. I).. 05;
Id., 369.
On the 13th day of February, 1895, the United States Senate passed
a resolution, as follows:
Resolved that the Secretary of the Interior be, and he is hereby, directed to inform
the Senate whether it is proposed to issue a patent to the State of Florida for that
portion of the State known as the ''Everglades/' and if so whether the Seminole
Indians of Florida will be thereby dispossessed of their occnpancy of said lands or
any portion thereof.
This resolution was referred to your office and also to the Commis-
sioner of Indian Affairs for reports.
On February 23, 1896, the Commissioner of Indian Affairs reported :
That the '* Everglades'' as laid down npon the map of Florida comprise large por-
tions of the counties of Monroe and Dade. From a report made by Special Agent
Wilson, December SO, 1887 (see Senate Ex. Doc. No. 139, 50th Congress, Ist session),
it appears that there were then fifty Indians in Monroe conuty, and one hundred
and twenty-six Indians in Dade county. Whether these Indians are located, within
the ^'Everglades' which it is proposed to patent to the State of Florida, I am
unable to determine. It also appears that there are Indians located in sections
1 and 2, township 53 south of range 41 east, in Floridn, but whether these section.^
will fall within the "Everglades," as they may be surveyed by the governor of
Florida, is a matter of doubt.
If the Indians now have the right of occupancy of the lauds within the *' Ever-
glades,'' and the United States should convey su(*h lands by patent to the Stat« of
Florida, I am of the opinion that the State would take title subject to the right of*
occupancy of the Indians (see Beecher r. Wetherby, 95 U. S., 517, and the authorities
therein cited).
On Febrnary 16, 1895, your office reported on said Senate resolntion,
showing tliat in compliance with the departmental directions given in
19 L. D., 251, letters were sent from your office to the governor of
Florida and to the United States surveyor-general for Florida, inclosing
copies of said departmental deci.siou embodying instructions how to
proceed to execute the "meander survey giving the exterior metes
and bounds of *The Everglades,'" and requesting the governor of
Florida
to submit satisfactory proof that said meander line does not include lands which do
not come within the description of swamp and overHowed lauds as defined in the
act of September 28, 1850.
DECISIONS RELATING TO THE PUBLIC LANDS. 149
On February 28, 1805, the Department, in response to said Senate
resolution, transmitted to the President of the Senate copies of the
reports of your office and the Indian office.
On January 9, 1896, your office submitted Florida swamp land list
No. 87, embracing the lands designated on the maps as "The Ever*
glades,'^ and containing an estimated area of !3,943,600 acres. In your
office letter it is said:
The estimate include:) all tbe lands within tho meander given in the list; and what
would he school sections (16) in the several townships, if surveyed, are therefore,
inclnded in the total area submitted for a])proval under the swamp land grant; thi^<
is on the theory that although the school grant is of earlier date than the swamp
land grant, the latter being a grant in pra^senti, takes precedence in the case of
unsurveyed lands. The approval of the list is respectfully recommended.
On February 3, 1896, my predecessor, referring to said list, requested
your office to prepare and forward for consideration
an .abstract of the evidence in your office, submitted by said State, going to show
that the meander line of the survey of the ** Everglades" does not include within the
original limits thereof any lands which do not fall within the description of swamp
lands under the act of 1850 above mentioned, as required by my decision of October
10, 1894(19L.D.,251).
Pursuant to said request, your office, on the 6th day of February,
1896, transmitted to the Department a resume of the evidence submit*
ted by the State of Florida in support of its claim, as follows:
In addition to certified copies of the field-notes of survey of certain townships
bordering on the ''Everglades,'* the State submitted the affidavits of a number of
persons having knowledge of the land, two of whom, J. W. Newman and Charles F.
Hopkins, were engineers in charge of expeditions crossing the *' Everglades," one
from Fort Shackleford to Miami, and the other from Lake Okeechobee to the month
of Shark River. The two persons mentioned are the only ones appearing to have
any real knowledge as to the character of the interior portion of tho "Everglades,"
and I inclose their affidavits as they are too concise to bear abridgment.
Eleven persons testified as to the general character of the land near the golf of
Mexico, or the southern portion of the ''Everglades." They testified that, with the
exception of a few 'Mslands" or ''hammocks" of from two to twenty acres in extent,
the whole country is one vast marsh, impracticable to drain, or land utterly worth-
leas for agricultural purposes. It is not stated that the land is rendered worthless
by reason of its wet condition. The State refers to the report of Mr. Frank Flynt,
which report is fully set forth in 19 L. D., 251.
The field-notes of survey of the townships bordering on the "Everglades," the
lines of which surveys form the principal meanders mentioned in said list No. 87,
show the lines to have been run through swamps or marshes for almost its entire
length. It is tlie opinion of this office that the public land surveys were extended
into the "Everglades" as far as was practicable and, in many instances, the border
townships were found to be almost entirely swanip-lund.
In Newman's affidavit he states, that as engiueei: in charge of a party
of twenty persons, he traveled across the peninsula of Florida from
Fort Myers to the place marked on maps as Fort Shackleford, and
thence in a southeasterly direction across the "Everglades" to Miami
on Biscayne Bay; 'Hhat he does not think or believe that along the
route irom a point ten miles southeast of Fort Myers to a point four
150 DECISIONS RELATING TO THE PUBLIC LANDS.
miles west of Miami one single tract of forty acres of land can be found
fit for cultivation without artificial drainage."
The affidavit of Oharles F. Hopkins shows that in ^N^ovember, 1883,
he was the engineer of an expedition through the ^^ Everglades^" that
the expedition entered Lake Okeechobee and proceeded due south from
the southern extremity of the lake for nearly eighty miles, and then
deflected to the *' W. S. W." to the head of Shark River, and proceeded
down that river to its mouth. The party traveled in small boaf.s
^* paddling, pushing and dragging them alternately through the shal-
low water and saw-grass." He further states :
I took Roundings, with an iron rod^ eight feet long, through the mnd and uiack,
occasionally, for abont sixty-five miles; after -which the rock cropped out on the
surface.
At a distance of fifteen miles we found rock at a depth of eight and one-half feet,
and afterwards at varying depths of from three tu five feet for a total distance from
the lake of sixty miles. The muck throughout this distance appeared very rich.
The rock kept rising nearer the surface, until in the vicinity of the head of Shark
river it cropped out ou the surface.
There are several streams with a slow current running southerly out of Okeechobee,
which are about ten feet deep, and about one hundred and fifty feet wide nt the
mouth, gradually growing smaller, until at the end of two or three miles they spread
out over the country.
These streams run through a custard apple swamp. We then encountered a plain
with a stunted growth of Myrtle and ^'yama'^ grass, with water about a foot deep,
at that time, which was at the end of a dry season. We continued through this for
a few miles and then entered thick and tall saw-irrass.
This saw-graAS extended almost uninterruptedly for about forty or fifty miles, and
then broke up into small saw-grass islands separated by small channels and bayous
of water. *
When we arrived in the vicinity of the head of Shark river, these islands changed
into innumerable small hammock islands, mixed with the saw-grass islands, and
strange enough all arranged in rows extending S. S. £., so one could st-and and look
down between the rows, as far as the eye could see.
These hammocks vary in size from one to twenty-five acres, and a few of them are
above ordinary over-fiow. The soil of these islands is rieh.
Not over one in one hundred of these islands are susceptible of cultivation, in their
present state, as they are overflowed during the rainy season, and moreoYer are
inaccessible until the surrounding marsh is drained.
The country for about sixty miles south of Okeechobee is susceptible of drainage,
being elevated at Okeechobee twenty-two feet above the sea, and gradually declining
to the sea level. South of this limit the rock crops out at the surface, and, except
the islands before mentioned, the lantl is worthless even if drained.
Drainage would be impracticable here as the gulf waters back up so as to destroy
the fall.
1 he country in its present condition is a vast marsh covered with water at all sea-
sons and for forty miles south of Okeechobee is devoid of all animal life, even to birds
and alligators, on the line we traversed.
Our exneditiou passed down the median line of the State, which is the summit or
water-shed line. On each side of us, four or five miles away, the water was deeper,
in the saw-grass being from two to three feet deep ; and for the first fifty miles after
passing the custard apples there was no land in sight, the waving saw-grass extend,
ing as far as the eye could see in all directions, except on the west. A hazy outline
of the land could be seen in that direction.
DECISIONS RELATING TO THE PUBLIC LANDS. 151
Shark river is aboat four and one-half to five feet deep and about two hundred
and fifty feet wide, with rock bottom. Water very clear ; depth of water at mouth
twelve feet; mnd bottom.
The cruise occupied twenty-eight days from Lake Okeechobee to the gulf; during
which time we Blept in boats every night, there being no dry land to camp on. By
meridian altitude of the sun (using artificial horizon), I find the extreme south end
of Lake Okeechobee to be in latitude 26^ 41' 19' south.
The jndgineut of your office, that the swamp laud grant *' takes pre-
cedence in the case of, unsurveyed lands," is not concuri'ed in, for reasons
that will hereinafter be given.
Section 1 of the act of March 3, 1845 (3 Stat., 788), provides:
That in consideration of the concessions made by the State of Florida in respect
to the public lands, there be granted to the said State eight entire sections of land
for the purpose of fixing their seat of government; also, section number sixt<^en in
every township, or other lands equivalent thereto, for the use of the inhabitants of
sacb township, for the support of public schools.
This act was passed over five years before the swamp laud act, and
was based upon express concessions made by the State respecting
the public lands, and in its nature rests in a solemn compact, which the
government of the United States should maintain, sacredly keep and
carry out on its part. It is clear that Congress intended by this act to
invest the State with title to every sixteenth section of land in that
State that had not been disposed of^ just as soon as such sections
should be identified by proper surveys of the public lands. Whenever
such sections shall be identified, the title thereto will pass to the State
under the granting ac^t; no patent will be necessary. Warren et al.
V. State of Colorado, 14 L. D., 681; McCreery r. Haskell, 119 U. S.,
327-331.
These views find support in the decisions of the supreme court of the
United States, as well as those of this Department.
In Cooper r. Roberts, 18 How., 173, it was said:
We agree that until the survey of the township and the designation of the specific
section, the right of the State rests in compact — binding, it is true, the public faith,
and dependent for exectitioo upon the political authorities. Courts of justice have
no authority to mark out and detine the land which shall be subject to the grant.
Bat when the political authorities have performed this duty, the compact has an
object, upon which it can attach, and if there is no legal impediment the title of the
State becomes a legal title.
See also fleydenfeldt r. Daney Gold and Silver Mining Company, 93
U. S., 634.
In Beecher r. Wetherby, 95 U. S., 517, in speaking of the school
grant to the State of Wisconsin, it is said, p. 523:
It was, therefore, an unalterable condition of the admission, obligatory upon the
United States, that section sixteen (16) in every township of the public lauds in
the State, which had not been sold or otherwise disposed of, should be granted
to the State for the use of schools. It matters not whether the words of the com-
pact be considered as merely ])romissory on the part of the United States, and
constituting only a pledge of a grant in the future, or as operating to transfer the
152 DECISIONS RELATING TO THE PUBLIC LANDS.
title to the State upon her acceptance of the propositions as soon as the sections
could be afterwards identified by the public surveys. In either case, the lands
which might be embraced within those sections were appropriated to the State.
They were withdrawn from other disposition, and set apart from the public domain,
so that no subsequent law authorizing a sale of it could be construed to embrace
them, although they were not specially excepted. All that afterwards remained
for the I'nitcd .■>tates to do with respect to them, and all that could be legally done
under the compact, was to identify the sections by api:ro]iriate surveys; or, if any
further assurance of title was required, to provide for the execution of proper instru-
ments to transfer the naked fee, or to adopt such further legislation as would
accomplish that result. They could not be diverted from, their appropriation to
the Stute.
On November 20, 1855, Secretary McClelland held that the swamp
grant of September 28, 185<>, did not embrace lands in Illinois which
were included in the railroad grant of September 20, 1850. See 1
Lester, 521-523.
Secretary Schurz declined to recall his opinion in a similar case ren-
dered on May 2, 1878. See Copp's Public Land Laws, 1071.
In State of Mississippi, 10 L. D., 393, Secretary Noble held (syl-
labus) :
Swamplands, inclu<led within the alternate sections reserved to the lJnite<l States
from the grant to the State for railroad purposes, did not pasn under the subaeqaent
act of September 28. 1850.
In State of Ohio (on review), 10 L. D., 304, Secretary Noble held
(syllabus) :
The swamp lands, included within the alternate sections reserved to the United
States from the grant to the State for canal purposes, did not pass under the subse-
quent grant of swamp lands, and no indemnity can be allowed therefor.
It does not follow tbat because a survey of the " Everjfladea ^ is
impracticable, that the State should be deprived of its rights under
its school grant. The " Everglades" of Florida present conditions that
are exceptional in character, inasmuch as it would seem that the body
embraced therein can not now be surveyed in such a manner as to mark
out and specifically define the township and section lines. It is i>os-
sible, however, that such survey may hereafter be made, and under the
circumstances, and for the reasons hereinbefore given, it is deemed
proper that the State's rights under its school grant should be pre-
served to it. It is accordingly held that a patent may issue to the
State of Florida for the " Everglades" under the swamp land act, sub-
ject to the right of the State under its school grant, for the laud
embraced in the swamp list No. 87, as approved by me. With this
modification, said list is approved, and you are directed to issue a
patent accordingly.
The views of the Commissioner of Indian Affairs respecting the rights
of any Indians occupying the lands in question are concurred in.
DECIfilONS RELATING TO THE PUBLIC LANDS. 153
PRE-EM PTIOX— FIX AL. PROOF— PA YMEXT.
Odett r. Davis.
The sabmiBsion of pre-emption final proof, without payment of the purchase price of
the land as required by law, will not protect the pre-empt or as against an inter-
vening adrerse claim.
Secretary Francis to the Commisawner of the General Land Office^ Feb •
(I. H. L.) ruary 13, 1897. (W. M. W,)
Tlie case of Frank Odett r. John C. Davis lias been considered on
tlic a])peal of the former from your office decision of August 24, 1895,
holding for cancellation said Odett's pre-emption declaratory statement
for the W. i of the KW. J, the NE. \ of the N W. J, and the NW. \ of
the SW. \ of Sec. 33, T. 30 N., R. 11 E., Susanville, California, land
district.
The record shows that on November 1, 1888, Odett filed his pre-
emption declaratory statement covering the land in question. On
September 11, 1891, he submitted final proof in support of his claim,
but did not pay or tender the purchase money for said land.
On August 7, 1893, John C. Davis made homestead entry for said
land.
On August 15, 1893, Odett appeared at the local land office, and offered
to pay the government price for said land and asked that final receipt
be issued to him therefor. This the register and receiver refused to do.
There is nothing in the record to show upon what grounds this refusal
was based.
It appears from the decision of the register and receiver in the case
that upon
affiilavit filed by said Odett citation was issued to said Davis to show cause why his
said homestead entry should not be canceled. Hearing was set for October \2, 1893.
The case was continued until December 22, 1893, when it was sub-
mitted on an agreed statement of facts.
On April 10, 1895, the register and receiver rendered their opinion,
in which they held that Odett's pre-emption filing should be held intact,
and that Davis's homestead entry should be canceled without prejudice
to his right to make another homestead entry.
Davis appealed.
On August 24, 1895, your office reversed the judgipent of the local
oflBcers, and held Odett's filing for cancellation.
Odett appeals.
His sx>ecifications of error are as follows;
1. In holding that the record herein "fails to disclose any reason for
iriving him (plaintifl) a hearing, or in any way recognizing his claim to
said laud.''
2. In holding that "failure to make proof and payment (on a pre-
emption claim) as provided by law entails a forfeiture of all rights in
the presence of an adverse claim."
154 DECISIONS BEIiATING TO THE PUBLIC LANDS.
3. In holding that the "intervention of the Davis entry while Odett
was in default obliterated the latter's claim."
4. In holding the plaintififs declaratory statement filing for cancella-
tion.
5. In holding Davis's homestead entry intact.
The case was submitted to the register and receiver upon an agreed
statement of facts, on which it was decided by them and by your office.
Said agreed statement of facts recites the record showing Odett's pre-
emption filing, his final proof, failure to tender or pay the purchase
money at the time of proof, Davis's entry, and thereafter Odett'a offer
to pay for the land, as hereinbefore set out. In addition to these mat-
ters, the agreed statement shows that Odett is a laboring man, depend-
ent upon bis labor for a living; that at the time he made final proof
he did not have the money to pay for the land, but it was his bona fide
intention to secure the money to pay for the land as soon as he could;
that on August 14, 1893, he borrowed the required amount of money to
pay for said land, and on the 15th day of said month he offered to make
payment for the land embraced in his preemption filing ; that at the time
Davis made his homestead entry of the tract Odett had on said land '^a
good substantial house, fence inclosing about three or four acres, and
said garden.'' Said statement contains many other facts that can have
no bearing on the questions to be determined.
Counsel for appellant calls attention to Hugh Taylor, 9 L. D., 305,
and contends that it sustains his allegations of error.
That case involved the right of a pre-emptor, after the statutory life
of his filing had expired, and while proceedings under his final proof
were pending, to transmute his filing under section 2289 of the lievise<l
Statutes. His application to transmute was in its nature and effect a
pending application to make homestead entry of the tract in question.
It follows that the case at bar does not come within the rule announced
in the Hugh Taylor case.
Referring to Odett's failure to make payment for the land in question,
your office held that:
While this delinqaency would not necessarily defeat his right to make entry, in
the absence of an adverse claim^ it did, from the moment his delinqnency began,
render the land snbject to entry by any other qualified applicant. In other words,
failure to make proof and payment, as prescribed by law, entails a forfeiture of all
rights in the x^resence of an adverse claim.
This holding is concurred in.
The judgment of your office appealed from is accordingly affirmed.
On the 17th of January, 1896, counsel for Odett filed what he calls
"Petition for Rehearing," in which he recites that the claims of each of
the parties have been under investigation by a special agent, who has
reported against them. He also charges that Davis has abandoned
the land in question, and asks that another hearing be ordered. Said
petition does not allege newly discovered evidence, but simply relates
DECISIONS RELATIK6 TO THE PUBLIC LANDS. 155
to matterB of fact arising since the trial which might be the basis of a
contest, if the entry were in snch a condition that it would be subject
to contest under the law.
If the alleged government proceedings shall be discontinued or ter-
niiuated without canceling Davis's entry thereafter, I see no reason why
Odett may not, if he desires to do so, contest Davis's entry on any
grounds sufficient to warrant a cancellation thereof. If said proceed-
ings result in canceling Davis's entry, the land will be subject to eiitry
by the first legal applicant. If Odett is qualified, and desires to enter
it, and makes the first application after it shall become subject to entry^
there is nothing to hinder him from doing so.
The petition is dismissed.
HOM£ST£AI> EXTRY-ALIEXATION— COMPROMISE.
Meal r. Donahue.
An agreement to couvey part of the land covered by a homestead entry after final
proof, with possession given under such contract, calls for cancellation of the
entry, although the agreement may have been made in the compromise of a prior
contest against the entry in rinestion.
Secretary Francis to the Commissvoiier of the General Land Office^ Feb-
(I. H. L.) ruary 13, 1897. (E. B., Jr.)
Alfred H. Meal appeals from yonr office decision of December 9, 1895,
iu his case against John J. Donahue, involving lot>s 1 and 2 and the
S. i of the NE. i of section 5, T. 17 N., R. 2 W., Guthrie, Oklahoma,
land district, for which the latter made his homestead entry April 27^
1889, and final proof April 9, 1895.
On May 3, 1895, Meal filed a protest against Donahue's entry alleg-
ing that the same was fraudulent for the reason that about May, 1891,
Donahue had sold to one John T. Phillips thirty-four acres of the land
embraced therein, and thereafter held the land fraudulently for the pur-
pose of acquiring title thereto in order '' that he might convey title to
a portion thereof to said John T. Phillips under his contract of sale'';
and further, that the said John J. Donahue fraudulently attempted to
convey title to said land to his sister-in-law, Mrs. Temple, immediately
after making final proof thereon: wherefore Meal prays that a hearing
be ordered '^to determine the truth of the allegations herein"; and that
the entry be canceled and he be awarded the preference right to enter
the land.
These charges are supported by Meal's affidavit and the affidavit of
said Phillips. The latter swears that for some time i)rior to about May,
l^i91, he had a contest x>ending against Donahue's entry affecting —
the E. i of the N£. i of said sectiou 5; that abont May 1891, he withdrew his said
contest against said homestead entry in consideration that the said John J. Donahue
sbonld prove said land up, and acquire title thereto from the government of the
l.'uit«d .States, and thereafter shonhl deed to this afhant thirty four acres off tiie east
156 DECISIOXS RELATING TO THE PUBLIC LANDS.
Bide of said NE. } of said section 5; that at said time last mentioned, the said Jofaa
J. Donahue, entered into an agreement with this affiant by which said Donahne
agreed to acquire title to said land, and thereafter as soon as title was so acquired bv
him, make a good and sufficient deed to this affiant to the thirty four acres above set
forib ; that said Donahne also agreed that this affiant might have the nse of %:\'h\
thirty four acres from the time said agreement was entered into free of charge, and
tliJJt this affiant might have and own all iniproveuientH of whatever kind and rhar-
aoter affiant could place upon said thirty four acres; that in pursuance of said agree-
ment and in consideration of the withdrawal by affiant of his contest above referred
to, this affiant went into possession of said thirty four acres^ and has continued Id
said possession up to the present time; that in pursuance of said agreement an>i
promise so entered into by said .John J. Donahue, this affiant proceeded to plant and
raise upon said thirtv four acres of land an orchard and vineyard consisting of abo'.iT
three hundred fruit trees and about two hundred grape vines, and that affiant a]>o
planted and lias continuously cared for about fifty ornamental and forest trees and
other shrubbery on said thirty four acres on and about a building site selected and
enclosed as such br affiant and his familv; .... that said Donahue coutioueil
to re- affirm said agreement as to said thirty four acres until after bo had made t\ui\
proof upon his said homestead entry, which was done on April 9th, 1895, Irit tint
since about the 15th of Ai)vil 1895, said Donahne has refused to comply with the
said agreement and has refused to make a deed to said thirty four acres to this affiant :
but that said Donahue did on the day of April 1895, make a deed of said land
together with the balance of his said homestead entry to Mrs. Trimble, a sister-in-
law of said Donahne, and that his said sister-in-law has as affiant is informed and
believes, mortgaged said land for the sum of .^700.00.
In said decision upon consideration of this protest your office held
(1) that a conveyance of the land by Donahue after flnjil proof would
not be sufficient ground for contest; and (2) that —
The contract between Donahue and Phillips pursuant to which the contest was
dismissed, was in the nature of a compromise, and was not, therefore, such an illegal
agreement as would justify the cancellation of Donahue's entry.
A hearing was therefore denied and the protest dismissed. Meul
thereupon prosecutes this appeal, cont'Cnding that your office erred iu
its holdings and action adverse to him as above stated.
It is well settled that after due final proof and entry a homesteader,
having then acquired the equitable title to the land entered, may con-
tract to convey, or may at once convey the same without infracting any
provision of the homestead law. A conveyance at such time is not^^er
se evidence of bad faith on the part of the entry man. Your decision
as to the alleged cf)nveyanee to Mrs. Trimble is therefore correct.
With the alleged fraud of Donahue against Phillips in connection with
that conveyance the land department is not concerned. That is a mat-
ter between themselves.
J do not concur, however, in the conclusion of your office that such a
contract as is alleged to have been entered into between Donahue and
Phillips is in the nature of a compromise such as to be permissible
under the homestead law, and therefore not an illegal agreement. As
a means of ending vexatious litigation, compromises between claimants
to public land may properly be and generally are favored by the laml
DECISIONS RELATING TO THE PUBIJC LANDS. 157
department, but to be favored tbey must, as an essential condition pre-
cedent, be within the law, and not involve and require as a necessary
sequence, or as part of the contract on which they are founded, the
violation of law. The government is to a certain extent a party to
every valid compromise between adverse claimants to public land; or, to
state the proposition ui another form, no such compromise can be effected
without the knowledge and consent or subsequent ratification and
ap|)roval of the United States. The alleged contract, or compromise,
whereby the contest between Philhps and Donahue was brought to an
end, could not have received the consent, and cannot now receive the
approval, of the United States speaking through this Department; for
such a contract or compromise would involve a violation of law on the
part of said Donahue, then an entryman, and one of the parties
thereto.
It was said by the Department in the recent case of Walker v, Clay-
ton (24 L. D., 79), wherein Clayton, prior to final proof, had made a
contract with one May to convey to the latter his (Clayton's) homestead —
III his homestead affidavit he had sworn that the entry was made for his exchisive
lieuefit aud not directly or indirectly for tlie benefit or use of any other person or
]>vr8on8 whatsoever, and he knew that in his final affidavit ho would he required to
make oath, subject to an exception not here in point, that he had not alienated any
part of the land (Sections 2290 and 2291, Revised Statutes). It was evidently
implied, if not expressed, in his contract with the United States, that he would
tuutinne to hold, reside upon and cultivate the laud for his exclusive use and beneOt
Qutil the time should arrive, when, after the subifiission of final proof as required
by law, he bad earned his right to receive patent therefor.
It is no adequate defence that May could not enforce specific performance of the
contract. Clayton might, of his own volition, have carried it out, and it is this mis-
chief that the statute is designed to remedy (Molinari r. Scolari, 15 L. D., 201).
In the case of Tagg r. Jensen (16 L. D., 113), it w:is laid down as the settled
eciD8trncti(m of the pre-emption law relative to alienation "that any agreement tu
convey any part of an entry or claim to another made prior to final proof will
defeat the claim." While the language of the ]>re-emptlon law was more explicit
than that of the homestead law an it stood at the date of this entry, the spirit aud
intent of each on the point at issue was the same; and section 2290 of the Revised
Statutes, as amended by the act of March 3, 1891 (26 Stat., 1095), was made to con-
form sub:stantially to the language of the former. See in this connection Bashford t*.
Clark f/flZ. (22 L. r).,328).
The Department directed the cancellation of Clayton's entry because
of tbe unlawful contract made by him, although no conveyance was
ever made in pursuance thereof, nor any possession of the land, appar-
ently, ever given. In this case not onlj- is a similar contract alleged,
bat it is also charged that possession was given Phillips thereunder
and continued by him up to the date of this protest.
Meal's allegations as to this contract and its partial execution by
Donahue, are amply sufficient to require that a hearing be ordered iu
the premises. The decision of your office upon this point is reversed and
yuu are directed to order a hearing, in accordance with the foregoing.
158 DECISIONS RELATING TO THE PUBLIC LANDS.
HOMESTEAD COXTEST— PRIORITV OF aETTLEMENT.
BEHAB r. SWEET.
The general rule that a settler claiming priority over one having an entry of record
must establish his claim l)y a preponderance of the evidence, may 1>e so far
departed from, in a special case, as to reach an equitable conclusion, where, ou
the facts shown, justice and equity require a division of the land between the
parties.
Secretary Francis to the Commissioner of the Genfiral fAind Office, Feb-
(I. H. L.) ruary 13^ 1807. (A. E.)
On July 25, 1896, your office trausmitted a motion filed by Sweet for
review of departmental decision rendered in the above entitled cause
on June 9, 1896. The land involved is the XW. \ of Sec. 23, Tp. 26 N.,
E. 1 W., Perry, Oklahoma.
This motion being entertained, on August 25, 1896, you were directed
to notify Sweet that to insure consideration by the Department, be will
be required to serve a copy of the motion upon the opposing party, and
return evidence of such service within thirty days, that then each party
would be allowed to file briefs in accordance with Rule 114 of Practice.
On October 10, 1896, your office retransmitted the papers, with evi-
dence of service and briefs of counsel.
The matter is now before the Department for examination.
The facts in the case are as follows: The land is divided by a creek,
running from the northwest corner southeasterly. About one-third of
the land lies north of this creek, and the timber along the creek
obstructs the view from either side. Behar settled on the north 8i<le
of the creek, and Sweet on the south side. A conclusion drawn from
the evidence is that each settled at the same time, on September 16,
1893, and neither knew the other was there, each having traveled about
the same distance going to the land. Each man has built a house and
improved the land. Over two years ago, when the hearing was had,
Behar had twenty-one acres broken, fourteen of which were in wheat,
had built two houses, kitchen, stable, chicken house, dug a well, set
out fruit trees, and had forty or fifty acres fenced. One month after
Behar settled on the land a child was born to liiui. Sweet's improve-
ments consisted of a house, twenty-five acres fenced, hen house, bog
pen, and twenty-five or thirty acres planted to crops. Each man has a
family, and has been a continuous resident upon the land since his set-
tlement, more than three years ago.
When Behar settled upon the land, his wife was sick, and there was
urgent necessity for a habitation for her to dwell in. He appears
therefore to have devoted himself to the improvement of the claim*
and did not apply to make entry until November 7, 1893, which,
however, was within time under the homestead law. Sweet, however,
not having a sick wife, for whom improvements were necessary, weut
DECISIONS RELATING TO THE PUBLIC LANDS. 159
to the local office and made entry on September 25, 1893, whicli was
sixteen days before tbe birth of Behar'a child.
It is contended by attorneys for Sweet that Sweet shonld have an
advantage by reason of having made this entry before Behar, in that
the harden of proof should be placed upon Behar to show that he was
the prior settler.
The local officers found in favor of Behar, but your office and the
Department agreed in finding that it was impossible to determine that
either Sweet or Behar had the superior claim, or that either had settled
prior to the other, and that, owing to a line of woods which divided the
tract of land in controversy, each settled unknown to the other.
Each man had made valuable improvements, and had continuously
resided upon the land, with his family, from dateof settlement, and the
Department deemed it unjust to do other than divide the land between
the parties.
While the ruling that a settler claiming prior settlement over one
having an entry of record must establish his claim by a preponderance
of evidence, will be adhered to in most cases, the De[)artment will, where
justice and equity require it, and great hardship would result were the
rule applied, depart so fnr from the rule as to reach an equitable decision
in the case. If the rule were applied in the case under consideration,
it would be depriving Behar of his land and improvements, because he
remained on the land, building a habitation for his sick wife, to whom
a child was bom on the land twenty-tive days after his settlement.
• Deeming that it would be a great hardship to Behar to disturb the
decision in the case under consideration, rendered June 9, 1896, the
same will stand.
The motion is denied.
PRICE OF LAND-rXDEMNITY LI>nTS-REPAYMEXT.
Thomas Foster.
Lands falling within the indemnity limits of a railroad are not raised to the double
minimum price.
There is no statutory authority for the return of a doable minimum excess in fees
and commissions erroneously required on a homestead entry of lands in fact
single minimnm, where such money has been covered into the United States
Treasury.
Secretary Francis to the Commissioner of the General Land Office Feb-
(I. H. L.) rvary 13 j 1897. (J. L.)
On February 8, 1889, Thomas Foster made homestead entry No. G479
of the SW. J of section 14, T. 27 N., R. 32 E., W. M., Spokane Falls
land district, Washington. He was required to pay and did pay to the
receiver the sum of twenty-two dollars for fees and commissions, the
land beinfc rated at double minimum price. On November 20, 1895,
Foster filed an application for the repayment of six dollars, alleging
160 DECISIONS RELATING TO THE PUBLIC LANDS.
that the laud was *^ minimum priced laud, upon which the fees and
commissions payable when application for homestead entry is made*^
could lawfully amount to only sixteen dollars.
On December 3, 1895, your office rejected the application, saying,
•
that the records of this (yoar) office show that satd laud in within the limits of the
grant to the Northern Pacific Railroad Company, branch line. Hence the land h
doable minimum laiul (Section 2357 R. S.)y An<l the fees and commissions collected
on said homestead entry, $22.00, was the proper amount.
From said decision Foster has appealed to this Department, respect-
fully traversing the fact found by your office as aforesaid.
A re-examination of the records of your office shows, that the quar-
ter section of land aforesaid lies within the indemnity limits of the
grant to the Northern Pacific Company for its main line, and does not
lie within the granted limits for the branch line.
The act of July 2, 1864, incorporating the Northern Pacific Railroail
Company (See section G on page 360 of 13 Statutes), and sectiou 2357
of the Revised Statutes referred to in your office decision, do not extend
the double minimum price to lands lying within indemnity limits.
Only reserved alternate sections lying within the limits granted by act
of Congress, are required to be sold for not less than two dollars and
fifty cents per acre (19 L. D., 381).
According to the list of fees and commissions published on page 34
of the General Circular of October 30, 1895, it seems that Foster paid
six dollars too much.
Therefore the reason assigned by your office for rejecting Foster's
application is erroneous.
r>ut the relief desired by Mr. Foster cannot be granted, because the
six dollars which he overpaid on February 8, 1889, and demanded back
on November 20, 1895, were in due course of business covered into the
treasury; and there is no statute which authorizes your office or this
Department to take it out. The (Constitution provides that: "No
money shall be drawn from the Treasury, but in consequence of appro*
priations made by law."
For this reason, your ofiijce decision rejecting the application is hereby
affirmed.
oklahoma i-aia>3^settl.e>cernt-bkservatiox for highway.
Harding v. Moss.
A settlement on land reserved for a public highway, along a section line, as provided
under section 23, act of May 2, 1890, prior to the nrtnal location and use of such
highway, is valid and extends to the adjacent quarter section on which settle-
ment is intended to be made.
Secretary Francis to the Commissioner of the General Land Office j Feb-
(I. H. L.) rtiary 13, 1897. (O. J. W.)
On September 20, 1893, Albert W. Moss made homestead entry No.
339, for SW. J Sec. 10, T. 26 K. 2 E., Perry land district, Oklahoma.
DECISIONS RELATING TO THE PUBLIC LANDS. 161
On October 26, 1893, Harding filed his affidavit of contest against
said entry alleging prior settlement.
The hearing was set for October 26^ 1894.
On motion of Harding the case was continued to January 2, 1895.
On January 2, 1895, Harding made application to take the depositions^
of absent witnesses and the case was continued to March 11, 1895. On
March 11, 1895, Harding asked for a further continuance of thirty days-
on ac*connt of absent witnesses which was denied, but he was allowed
another day, to wit: until 12th of March to get his witnesses.
On March 12, 1895, the hearing was had, both parties being present
and represented by counsel. On March 15, 1895, the local officers ren-
dered their decision in which they found that Moss was the prior settler,
and recommended the dismissal of the contest. Harding appealed, and
on October 24, 1895, your office considered the case and rendered an
opinion, in which it was, in substance, found that the evidence left the
fi\ct in doubt as to which was the ])rior settler, and directed a division
of the land between them in such way as to leave each in x>ossession
of the half upon which his improvements had been placed. From this
decision both Moss and Harding have appealed, each alleging, in Hub-
stance, the same errors of law, and each alleging that it was error not
to have found him to have been the prior settler. Harding alleges two
errors of law not covered by the allegations of Moss.
1. That it was error to deny bis motion for continnance.
2. That it was error to hold that a settlement upon the fonr rods reserved for a
public highway aronnd the section was a valid settlement.
The land in controversy is a part of what Is known as the Oherokee
Outlet, and was opened to settlement on the 16th of September, 1893.
Each of the parties claims to have made the race to, and settlement upon,
the land on the day of the opening. The two distinct legal propositions
submitted by Harding will be first considered, since, if he is correct in
dther, an examination of the other questions would be unnecessary.
1st. Was it error on the part of the local officers to deny the motion
of Harding for further continnance f The record indicates that ample
opportunity was offered Harding to prepare his case for trial, and there
was no abuse of discretion on the part of the local officers in denying
his last motion for continuance.
As tQ the insistence, that a settlement upon that part of a quarter-
section reserved for a i)ublic highway along section lines, as provided
by section 23, act of May 2, 1890 (26 Stat., 81), it must be held that
before such highway is actually located and in use, such settlement must
be regarded as valid and extends to the quarter- section contiguous,
upon which such settlement was intended to be made. The highway
provided for by the act is a mere easement, and does not prevent title
to the entire quarter-section from passing to the patentee, subject to
the easement.
10671— VOL 24 n
162 D£CI»IONS RELATING TO THE PUBLIC LANDS.
Baid section twenty- tliree is as follows:
That there shall be reserved public highways fonr rods wide between each section
of laDd in said territory, the section lines being the center of said highways; but
no deduction shall be made, where cash payments are provided for, in the amount to
•t)e paid for each quarter-section of land by reason of such reservation. But if the
.-flaid highway shall be vacated by any competent authority, the title to the respec-
;tive strips shall inure to the then owner of the tract of which it forms a part by the
original survey.
Where, as in this instance, the initial act of settlement performed by
a settler is upon, or partially upon, the land thus reserved, it will never-
theless be deemed settlement upon the quarter-section to which it apper-
tains and is intended to be settled upon. Your office did not err in so
holding.
The remaining questions are — 1st. Was it error upon the part of your
office to direct a division of the land between the two claimants; and
2(}. Was it error to make no ruling as to which one of the parties was
the prior settler. As to the first of these propositions it was held here,
in the case of Sumner v, Eoberts (23 L. D., 201) —
In case of a contest against an entry on the ground of a prior settlement right, the
burden of proof is on the contestant to show that his settlement antedates both the
enlry and settlement of the oont«stee, and if he fails to thus show such priority, the
«ntry must stand.
In a contest of such character, donbt as to the fact of priority, or a finding of
•simultaueouB settlement, does not justify an arbitrary division of the land between
the parties, or an award thereof to the highest bidder.
Your office decision as to this proposition is without support either in
law or the evidence, and must be held to be erroneous. The question
remains is the evidence of such character as to admit of a specific find-
ing of priority of settlement upon the part of one or the other of the
parties. An examination of the record is all that is necessary on this
subject. The fact is not left either in doubt or uncertainty. The evi-
dence unmistakably indicates that Moss reached the land and set his
stake at least thirty minutes before Harding reached the tract. The
local officers found Moss to have been the prior settler, and the record
amply supports that finding. In fact, it is not seriously disputed by
.contestant that Moss was first on the land, and the gravamen of his
•contention is that, when he reached it, he performed no act of settle-
4nent for a long time thereafter; that such as he did perform was in the
public highway, and that was thereafter abandoned. The record does
not support this contention. Upon the contrary, it warrants the specific
finding that Moss reached the land at least half an hour in advance
iof Harding, and staked it, setting a stake with his name over it and a
handkerchief on it as a fiag. This stake was still standing on the 23d
•of September, and presumably it remained undisturbed from the IGth
until that time. It was sufficient notice that the land was taken and
olaimed by Moss, and as an initial act of settlement it was followed
"within a reasonable time by permanent improvements of value and by
DECISIONS RELATING TO THE PUBLIC LANDS. 163
residence. The finding of tbe local officers on these questions was
proper. Your office decision is reversed, and the decision of the local
officers affirmed. The contest is dismissed, and the entry of Moss held
intact.
BAHJEtOAB OBANT— LAN1>S EXCEPTED -SWAMP SELEOnOV.
DOBN T. ELLINGSON.
Tbe notation of a swamp land selection, appearing of record at the date a railroad
grant becomes effective, will not operate to except the laud covered thereby
from the grant, where prior thereto the approval of such selection has been
revoked, and the selection itself snperseded by subsequent lists.
Secretary Francis to the Oammwsioner of the Oeneral Land Office^ Feb-
(I. H. L.) ruary 13^ 1897. (B. M. E.)
This case involves the NE. J of the SW. J and the NW. J of the
SE. J of Sec. 13, T. 98 N., R. 10 W., Des Moines land district, Iowa.
The record shows that these tracts are within the ten mile limits of
the grant to aid in the construction of the McGregor and Missouri
Biver Bailroad under the act of May 12, 1864 (13 Stat., 72), and on
June 19, 1879, were listed by the Chicago, Milwaukee and St. Paul
Bailroad Company, successors in interest to the above mentioned road.
On June 4, 1883, your office rendered a decision rejecting said listing
of these lands, holding that the tracts in controversy, having been
selected as swamp land on March 17, 1852, were by virtue of the act of
March 3, 1857 (11 Stat., 251), confirmed to the State of Iowa. The
railroad company filed no appeal as to this decision, but thereafter,
to wit, on June 4, 1884, the said company filed an application for a
reconsideration and revocation of that decision.
On September 3, 1884, your office, acting upon this application denied
it, and it was farther declared that the decision of June 4, 1883, was
final.
The company attempted to appeal, which right was denied them by
your office, and thereafter an application was made for the issuance of
a writ of certiorari, and on October 17, 1884, the Department refused
the issuance of the writ. In the decision refusing such issuance the
Department's action was based upon the laches of the petitioner and
the decision did not pass iipon the merits of the case before your ofjce,
it being said (L. & B. Press Copybook 109, p. 427),
Bat if said decision is Dot well founded a review here of the rule therein adopted
must be reserved until such time as a case involving swamp selections comes regu-
larly before the Department.
Your office decision of September 10, 1895, states that the question
at issue in those proceedings (the decision of June 4, 1883, and those
following) was the standing of what is known in your office as the
[
164 DECISIONS RELATING TO THE PUBLIC LAND&
<^ Sargent list", being a list of certain swamp selections in the State of
Iowa which at one time had been approved by this Department, but
subsequently such approval, upon the recommeudation of your office,
had been rescinded.
It appears that the tracts in controversy remain upon your records
as *^ selected as swamp March 17, 1852,'' and the decision of your
office now under consideration, for the purpose of clearing the record,
'* directed that the selection be noted as canceled at this date."
March 24, 1895, Elling H. ElHngson, the defendant-appellant, made
homestead application and the local officers allowed the entry on a
waiver by the Secretary of the State of Iowa showing that the selection
above referred to did not appear among the swamp selections of the
county wherein these tracts are situated.
July 5, 1895, the local officers transmitted the record in the applica-
tion of David Dorn to make final proof of his right to purchase the
above described land under section five of the act of March 3, 1887
(24 Stat., 657).
The local officers took no action in the case, and in your office decision
upon appeal you make the following finding of facts, which the record
sustains:
October 31, 1874, by deed (cootraot to sell) the McGregor A Missouri River R. E.
Company conveyed the land in controTeray to David Dom for $400.
Jnue 4, 1886, Dorn and wife, conveyed to Joseph M. Watts, for $3000; Watts, April
7, 1893, mortgaged (to secure the loan of $2500) to Charles L. Hutchinson, and
subsequently :
February 15, 1894, Joseph M. Watts and wife, conveyed the land by warranty deed
to said Elling H. EUingson for $2600, there being also an additional twenty acres of
adjoining land conveyed in same deed.
In this last mentioned trade Hutchinson executed a release of his mortgage, EUing-
son (February 17, 1894) executing a mortgage to E. A. Hamill to secure $1600, of the
purchase price mentioned. By stipulation of adverse parties in this case it was
agreed, that EUingson, during February 1894, executed a mortgage, and delivered
same to the First National Bank of Deeorah, Iowa, together with $1000 in money, for
the benefit of Joseph M. Watts. Subsequently EUingson made homestead entry for
the land, as shown, and enjoined said bank from paying or delivering said money or
mortgage to Watts, and the bank still retains the same under said procoedings.
In his pleading EUingson claims settlement on the land March 24, 1894, nine months
prior to Dorn's present application to purchase. Also that he (EUingson) previously
negotiated with Watts for the purchase of the land at the rate of $26.00 per acre.
EUingson found during the pendency of the trade with Watts that the title still
^'remained in the clouds with the swamp act, the R. R. act, and the U. S. Gov. reach-
ing for it.'' EUingson claims he proposed that Watts get a perfect title (matters
remaining in itaiu quo in the meantime) ''or get an adverse ruling from the U.S.
Commissioner, or the proper State officers/' EUingson urges that Dom's interfer-
ences, by applying to purchase under Sec. 5, act March 3, 1887, is, under the circum-
stances a questionable proceeding, and alleges that Dorn in his preliminary affidavit
to purchase swore that no person had settled on the land subsequent to 1882, while
on cross examination he admitted he heard that ElUngson '' had received a home-
stead fiUng.''
As has been set out, this case is before the Department upon the
DECISIONS RELATING TO THE PUBLIC LANDS. 165
ax>plication of Dom to purchase under the fifth section of the act of
Congress of March 3, 1887 (24 Stat., 557), which is as follows:
That where any said company shaU have sold to citizens of the United States, or
tt> persons who have declared their intention to become such citizens, as a part of its
grant, lands not conveyed to or for the nse of such company, said lands being the nnni-
bered sections prescribed in the grant, and being ooterminons with the constructed
parts of said road, and where the lands so sold are for any reason excepted from
the operation of the grant to said company, it shall be lawful for the bona fide pur-
chaser thereof from said company to make payment to the United States for said
lands at the ordinary Government price for like lands, and thereupon patents shall
is.sue therefor to the said bona fide purchaser, his heirs or assigns : Providedf That
all lands shall be excepted from the provisions of this section which at the date of
such sales were in the bona fide occupation of adverse claimants under the pre-
emption or homestead laws of the United States, and whose claims and ooonpation
have not since been voluntarily abandoned, as to which excepted lands the said pre-
emption and homestead claimants shaU be permitted to perfect their proofo and
entries and receive patents therefor: Provided further, That this section shall not
apply to lands settled upon subsequent to the first day of December, eighteen hun-
dred and e;gbty-two, by persons claiming to enter the same under the settlement
laws of the United States, as to which lands the parties claiming the same as afore-
said shall be entitled to prove up and enter as in other like cases.
Counsel for the appellant argues in his well-considered brief that in
order that one ma)' be entitled to purchase, it must appear that he
acted in go'^d faith in so purchasing from the railroad company, and
that in this case it cannot be said that he acted in good faith, inasmuch
as it is claimed b}' counsel that an examination or review of the pro-
ceeding had in reference to this tract discloses that the railroad com-
pany had, and could have had, no title in the tracts in controversy;
the record showing that fi'om 1852 up to the date of the decision
appealed from this laud appeared of record as selected as swamp. In
this connection it is proper to state that unless the land was excepted
from the grant to this railroad company, the right to purchase under
the act svpra does not exist. This brings up that question.
On October 30, 18'.)1, by letter "K" your ofBce decision was rendered
upon the authority and ei!ect of the ^^ Sargent list", hereinbefore
referred to. From the facts therein set forth it appears that this list
was filed in your oflSce on March 17, 1852, by George B. Sargent, sur-
veyor general. In filing said list the surveyor general did not stat«
that the State of Iowa had determined through its proper agents to
accept his field notes as a basis of adjustment, but subsequently, on
March 21, 1852, he so stated, but forwarded no agreement to this etfect.
And thereafter, by act of the State legislature, January 13, 1853, the
swamp lands were granted to the various counties and provision was
made for survey and selection by county surveyors. So it appears that
if the agreement was entered into as reported by letter from Mr. Sar-
gent, this action upon the part of the legislature was a repudiation of it.
UlK)n representation made to your office, on February 19, 1855, a
oomniunication was by your office addressed to the Department, asking
that the former approval of the '^ Sargent list " made by the Depart-
166 DECISIONS RELATING TO THE PUBLIC LANDS.
meDt upon the recommendation of the Commissioner of the General
Land Office, be revoked, and thereafter, to wit, on March 1, 1855, said
approval was revoked. Prior to this time other lists had been filed
showing the swamp lands claimed by the State under the swamp act.
As a matter of history, it may be stated in this connection that about
1700 tracts were included in the " Sargent list," and the county sur-
veyors under the authority of the act of the legislature, 8u;pra^ selected
about 1300 of these tracts, leaving 400 tracts. And in your office, for
a period of nearly thirty years after the revocation of the approval of
the <^ Sargent list'-, it was treated as superseded by other lists filed.
And your decision of October 30, 1891, gnyra^ states that this view
was acquiesced in by the State, it not having ever set forward the
claim that the lands specified therein were confirmed to the State by
the act of 1857.
The tracts in controversy were included in the " Sargent list", but
have not been enrolled in any subsequent list filed in the place of and
superseding that list. It was under these facts that the then Commis-
sioner of the General Land Office, on June 3, 1883, held that this list
was confirmed under the act of March 3, 1857 (11 Stat., 251). And
thereafter, as has been set out, the Department refused to disturb that
decision on account of the laches of the Eailroad Company.
Was the land now in controversy excepted from the operation of the
grant to aid in the construction of the McGregor and Missouri River
Railroad under the act of May 12, 1864 (13 Stat., 72)1
At that time there existed upon the records of your office, opposite
these tracts, "selected as swamp March 17, 1852;" this record being
made on account of the " Sargent list." The approval of that list had
been revoked and it had been superseded by others when the grant
was made. Under these facts it is clear that the land was not excepted
from the operation of the grant by an invalid and repudiated selection.
The clearing of the records in your office was a ministerial act, the
failure to do which can in no wise affect the rights of the company.
In the case of Anderson v. Northern Pacific Railroad Company et aU
(7 L. D., 163) it was held (syllabus) :
The oanceUation of an entry by the order of the Commissioner of the General Land
Office takes eftect as of the date when the decision is made, and the fact that such
order was not noted on the records of the local office nntil after the definite location
of the road, though made prior thereto, would not operate to defeat the operation of
the grant.
So also in the case of Sioux City and Pacific Railroad Company t?.
Wrich (22 L. D., 515), in which it was held (syllabus) :
A school indemnity selection made prior to statutory authority therefor does not
reserve the land covered thereby from the operation of a railroad grant.
The Secretary of the Interior is charged with the adjustment of railroad grants^
and should withhold from other disposition lands granted for such purposes, even
though the grantee may fail to aj)peal from an erroneous adverse decision of the
Geueral Laud Office.
DECISIONS RELATING TO THE PUBLIC LANDS. 167
And also Knigbt v. United States (142 U. S., 101).
My conclnsious are that there was no existing claim at the date of
the attachment of the railroad's right to these tracts that conld oper-
ate to prevent the railroad company from acquiring title, and therefore
that David Dorn, the defendant herein, is not entitled to purchase under
the said section of the said act, but that the land involved passed to the
railroad company.
The purchasers from the company are amply protected by this
decision.
The decision appealed from is accordingly reversed.
TIMBKB O U 'ITl'lN G— ST AT U TOBX FB0TI8I09B.
Instructions.
In ooostraing the provisions coDtaioed in the two acts of Jane 3^ 1878, and the act of
Angast 4, 1892, with respect to timber cutting, it mnst be held that the first of
said acts of 1878 (20 Stat., 88), relates to all mineral lands of the United States,
bat to none of nny other character, and permits the cutting of timber on such
lands for building, <igricnltnra], mining, and other domestic purposes, but not
for the parpose of sale or commerce, and that the second of said acts (20 Stat.,
89), as amended by the act of 1892, relates to all non-mineral lands of the United
States, in all public land States, and prohibits the catting of timber on snob
lands, except as therein otherwise provided.
Secretary Francis to the Commissioner of the Oeneral Land Office, Feb-
(I. H, L.) ruary 23, 1897. (W. 0. P.)
I am in receipt of yonr communication of May 25, 1896, asking to be
advised as to the proper construction of the acts of Congress of June
3, 1878 (20 Stat., 88), June 3, 1878 (20 Stat., 89), and of August 4, 1892
(27 Stat., 348), all of which contain provisions relating to the cutting
of timber on the public lands.
The act of June 3, 1878 (20 Stat., 88), which may be designated as^
act No. 1, is entitled:
An act authorizing the citizens of Colorado, Nevada, and the Territories to fell and
remove timber on the public domain for mining and domestic purposes —
and the first section reads as follows :
That all citizens of the United States, and other persons, bona fide residents of th»
State of Colorado or Nevada, or either of the Territories of New Mexico, Arizona,
Utah, Wyoming, Dakota, Idaho or Moutana, aud all other mineral diHtricts of the-
United States, shall be, and are hereb}', authorized and permitted to fell and remove^',
for bailding, agricultural, mining, or other domestic purposes, any timber or other
trees growing or being on the public lands, said lands being mineral, and not sub-
ject to entry under existing laws of the United States, except for mineral entry, in.
either of said States, Territories or districts of which such citizens or persons may,
be at the time bona fide residents, subject to such rules and regulations as the Secre-
tary of the Interior may prescribe for the protection of the timber and of the under-.
growth growing upon such lands, and for other purposes: Provided, the provisions
of this act shall not extend to railroad corporations.
16 i DEClSlOxXS RELATING TO THE PUBLIC LANDS.
The secoud section provideB that the register and receiver of local
land offices in whose district any mineral land may be situated shall
ascertain from time to time whether any timber is being cut upon any
sach land, except for the purposes authorized by said act, and if so, to
report, the fact to the General Land Office, and section three provides
I)enalties for the violation of the provisions of the act.
The other act of June 3, 1878, which may be designated as act No. 2,
is entitled:
An act for the sale of timber lands in the States of CaUfomia, Oregon, Nevada, snd
in Washington Territory.
The first section of this act authorizes the sale of public lands in ^^the
States of California, Oregon and Nevada and in Washington Terri-
tory" which are valuable chiefly for timber and stone thereon, but
unfit for cultivation ; the second and third sections specify the mode of
procedure in such cases, and section four prohibits the cutting of tim-
ber on the public lands. It reads as follows :
That after the passage of this act, it shall be unlawful to ont, or cause or proonrs
to be cut, or wantonly destroy, any timber growing on any lands of the United
States, in said States and Territory or removci or cause to be removed, any timber
fVom said lands, with intent to export or dispose of the same ; and no owner, master
or consignee of any vessel, or owner, director, or agent of any railroad, shall know-
ingly transport the same, or anj- lumber manufactured therefrom; and any person
violating the provisions of this section shall be guilty of a misdemeanor, and, on
eonviction, shall be fined for every such offense a sum not less than one hundred nor
more than one thousand dollars : Provided, That nothing herein contained shall pre-
vent any miner or agriculturist from clearing his land in the ordinary working of
his mining claim, or preparing his farm for tillage, or from taking the timber neces-
sary to support his improvements, or the taking of timber for the use of the United
States ; and the penalties herein provided shall not take efiect until nine^ days
after the passage of this act.
The fifth section provides for relief from prosecutions under Sec. 2461
of the Revised Statutes, and the sixth section repeals all acts or parts
of acts inconsistent with the provisions of this act.
The third act spoken of in your letter is that of August 4, 1892 (27
Stat., 348), and is entitled:
An act to authorize the entry of lands chiefly valuable for building stone under
the placer mining laws.
The first section of this act provides for the entry of lands chiefly
valuable for building stone under the provisions of the law in relation
to placer mineral claims, and the second section, which relates to the
subject now under consideration, reads as follows:
That an act entitled "An act for the sale of timber lands in the States of Cali-
fornia, Oregon, Nevadn, and Washington Territory" approved June third, eighteen
hundred and seventy-eight, be, and the same is hereby, amended by striking oat the
words *' States of California, Oregon and Nevada, and Washington Territory^' where
the same occur in the second and third lines of said act, and insert in lien thereof
the words " public laud States," the purpose of this act being to make said act of
June third eighteen hundred and seventy-eight, applicable to all the public land
States.
DECISIONS RELATING TO THE PUBLIC LANDS. 169
The proper coDStmction of the two acts of Juue 3, 187S, was consid-
ered by the United States circuit court in the case of United States v.
Smith (11 Fed. Eep., 487), particularly as to their operation within the
State of Oregon. It was there held that act No. 2 was operative in
that State to the exclusion of act No. 1. It was said in the course of
that decision that the provision in act No. 2, making it unlawful to cut
any timber on any public land in Oregon, except that cut by a miner
or agriculturist in the ordinary working or clearing of his mining
claim or farm is inconsistent with and repugnant to the license to cut
contained in act No. 1; that both provisions could not be in full force
in the same place. This decision was cited in the decision in United
States V* Benjamin (21 Fed. Hep., 285), and it was held that the pro-
visions of the act (No. 1) authorizing the cutting of timber on the
public lands was not applicable to Oalifornia.
These decisions were rendered on April 21, 1882, and August 18, 1884,
respectively. This Department on May 25, 1882, considered a number
of eases of trespass in cutting timber on mineral lands in the Territory
of Dakota, and gave certain instructions in the case of Frank P. Har-
din et al. (1 L. D., 597). Secretary Teller then said:
The aet of Cougrnss approved June 3, 1878, entitled ''An act authorizing the citi-
zens of Colorado, Nevada, and the Territories, to fell and remove timber from the
public domain for mining and domestic purposes'' clearly authorizes the cutting of
timber on the mineral lauds of the United States for domestic use
It has been alleged that the act of June 3, 1878, does not apply to persons cutting
timber on the mineral lands for sale, and that to enable any person t<o have the
benefit of that act, he must cut the timber for his peraonal use, and not for sale.
Such a construction defeats the very intent of the act, which was to allow the settler
on the mineral lands to have the benefit of the timber thereon growing for use
within the Territory or State where it grew.
The purpose and scope of the act were discussed at some length, and
the conclnsion reached is that expressed in the foregoing quotation.
These views were incorporated in a circular upon said act issued by
your office June 30, 1882, and approved by this Department (1 L. D.,
697), it being said :
All citizens and bona fide residents of the States and Territories mentioned therein
are antiiorized to fell and remove or to purchase from others who fell and remove,
any timber growing or being upon the public mineral lands in said States or Terri-
tories: i*rorided
1. That the same is not for export from the State or Territory where out.
2. That no timber less than eight (8) inches in diameter is cut or removed.
3. That it is not wantonly wasted or destroyed.
The attention of this Department was in that same year specifically
directed to the apparent conflict in the provisions of said acts of June
3, 1878, by a letter from your office requesting instructions in regard to
the administration thereof. In departmental letter of August 7, 1882
(1 L. D., GOO), it was held in substance that the words "all other min-
eral districts of the United States" appearing in act No. 1 brought
within the provisions of said act not only the mineral lands in the States
170 DECISIONS RELATING TO THE PUBLIC LANDS,
and Territories Darned but also those in all mineral districts outside
such States and Territories, it being specifically said that —
all privileges granted to inbabitants of mineral districts of tbe States and Territories
named in the act were granted to tbe inbabitants of sncb mineral districts of Cali-
fornia.
It was held that the two acts could apply in the same State upon the
theory that act No. 1 related to mineral lands and to that class of lands
only. That this was recognized as the proper construction is further
evidenced by a circular of October 12, 1882 (1 L. D., 695), wherein it
was said that the cutting of mesquite on the public mineral lands of
the United States was allowable under the provisions of said act No. 1,
while the cutting of such trees upon non -mineral lands was prohibited.
This holding seems to have been modified to a certain extent by later
circulars. In the circular of May 7, 1886 (4 L. D., 521), it is said in
regard to act No. 1 —
Tbe act applies only to tbe States of Colorado and Nevada, and to tbe Territories
of New Mexico, Arizona, Utab, Wyoming, Dakota, Idaho and Montana, and other
mineral districts of tbe United States not specifically provided for, and doee not
apply to the States of California or Oregon nor to tbe Territory of Washington.
Til at is act No. 1 was held to apply to mineral lands in all States and
Territories therein mentioned, also to all mineral districts outside of
the States specifically named in act No. 2, but not to mineral lands in
the States expressly named in act No. 2 except those in Nevada, which
is named in both acts.
Further on in this circular it is said:
4th. Timber felled or removed shall be strictly limited to bnllding, agrioaltnral,
mining and other domestic purposes.
All en t ting of sncb timber for sale or commerce is forbidden. Bnt for bnllding,
agricultnral, mining and other domestic purposes each person authorized by the act
may cut or remove for him or her own use, by bimself or herself, or by his, her or
their own personal agent or agents only.
The two acts of 1878 having been passed upon the same day should
be treated as one act and so construed, if possible, as to give each pro-
vision of each act effect.
Act. No. 1 permits the cutting of timber for certain purposes upon
mineral lands of the United States in the ^' States of Colorado or Nevada
or either of the Territories of New Mexico, Arizona, Utah, Wyoming,
Dakota, Idaho or Montana and all other mineral districts of the United
States"; and act No. 2 prohibits the cutting of timber on any lands of
the United States in "the public land states", with the proviso, how-
ever, that nothing therein contained shall prevent any miner or agri-
culturist from clearing bis land in the ordinary working of his mining
claim or preparing his farm for tillage, or from taking the timber nec-
essary to support his improvements.' This statement presents the appar-
ently conflicting provisions of the two laws, the existence of which
necessitates construction. If the conclusion of the circuit courts, as
announced in the decisions hereinbefore cited, that the two acts cannot
DECISIONS RELATING TO TUB PUBLIC LANDS. 171
operate in the same place, is to be accepted as correct, then it will be
necessary to determine which of the two is to prevail.
This Department has held, however, that both acts app?y in Nevada,
and if this holding is to be adhered to, it wonld necessarily follow that
both acts are to be held operative in the other public laud states brought
within the provisions of act No. 2 by the amendatory act. This rule, so
long followed in the administration of these laws, should not be changed,
unless it is clearly erroneous. It has been the policy to regard the
mineral lands in a different light from other public lands of the United
States, and the result has been a separate and distinct system of laws
in relation to them. It was evidently this consideration that led to the
conclusion by the Department that the two acts might stand, and both
have effect in the same State. This theory seems to be the only reason-
able one to explain the enactment of two laws upon the same day, which
are apparently contradictory. This construction gives effect to both
laws, allowing to each operation in its peculiar sphere, and should be
adhered to if there be nothing to show a contrary intention upon the
part of Congress.
The statement in instructions of August 7, 1882 (1 L. D., 600), in
regard to act No. 2:
By the express provision of section 2 the mineral lands in the broadest sense of
that term are ezcladed from the provisions of said chapter
is true because the primary object of that legislation was to provide for
the sale of lands that were not mineral in character and were at the
same time unfit for agricultural purposes. It may be said the insertion
of the provision in said act allowing the cutting of timber upon mining
claims negatives the proposition that the general prohibition against
cutting was not intended to apply to mineral lands. There is some
force in that statement, but the inference has not sufficient weight to
overcome the other express statements.
In the instructions issued under act ISo. 1 June 30, 1882, it was held
that timber might be cut from mineral lands for sale to citizens and
bona fide residents of the States and Territories named in said act. In
the instructions of May 7, 1886 (4 L. D., 621), the cutting of timber for
sale or commerce was forbidden, but in those of August 5, 1886 (5 L.
D., 129), the right to cut timber for sale was recognized. I cannot
agree with this latter position. The express provision is that timber
may be cut "for building, agricultural, mining or other domestic pur-
poses."' If it had been intended to make the timber on the public lands
au article of trade and commerce there should have been inserted
therein such a provision as "or for sale to bona fide residents for such
purposes."
The license given under this provision is in derogation of the rights
of the public and must therefore be strictly construed and limited to
the cases clearly and unequivocally specified in the act. The words
used do not include a license to cut timber for the purpose of sale, and
such a license cannot i)roperly be included by implication.
172 DECISIONS RELATING TO THE PUBLIC LANDS.
The proper eonstmctioD of these laws would seem to be, No. 1 relates
to all mineral lands of the United States, but to none of any other
character, and permits the cutting of timber on such lands for building,
agricultural, mining and other domestic purposes, but not for the pur-
pose of sale or commerce, while act No. 2, as amended by the act of
1892, relates to all non-mineral lands of the United States in all public
land States, and prohibits the cutting of timber upon such lands, except
as therein otherwise provided.
The effect of this act No. 1 as construed by the Department having,
as yon state, <^ resulted in wholesale devastation of timber on such
lands for purposes of speculation and personal gain " affords sufficient
reason for reconsidering the matter for the purjiose of correcting the
evil if possible. Furthermore a change of the ruling as to the construc-
tion of said act could not affect any vested rights as it would simply
operate as a revocation or limitation of the restricted license to cut
recognized under the construction heretofore given said act. There
seems therefore to be good reasons for changing the instructions under
said act, and no valid reason against such action at this time.
You will at once prepare instructions in accordance with the views
herein set forth to take effect upon such future date as may seem proiter,
and submit the same for approval.
RATLROAD GBANT— MINERAL LANI>S-ACT OF MARCH 8« 188T.
Walker v. Southern Pacific R. R, Co.
Prior to the approval of a railroad iudemnity selection the land incladed therein, 11
mineral in character, is open to exploration and purchase under the mining laws
of the United States.
The existence of a mineral location raises the presumption that the location has
been made in conformity with law, and that the laud covered thereby is mineral
in character.
Where mineral is found, and it appears that a person of ordinary prudence would be
justified in further expenditures, with a reasonable prospect of success in devel-
oping a mine, the laud may be properly regarded as mineral in character.
Section 5, act of March 3, 1887, does not confer upon a purchaser from a railroad
company, where the title of the company fails, the right to purchase from the
government land known to be valuable for its mineral.
Secretary Francis to the Commissioner of the General Land Office^ Feb-
(I. H. L.) ruary 23^ 1897. (B, B., Jr.)
This is an appeal by the Southern Pacific Railroad Company and J.
T. McGratb, in the case of S. E. Walker against the said company and
McGrath, from your oflice decision of December 21, 1895, holding so
much of the NW. J of the IN'E. J and the SE. J of the NW. J of section
9, T. 6 S., R. 3 W., S. B. M., Los Angeles, California, land district, as is
<iinl)rnced in the Green Mountain and Lucky Boy quartz mining claims
^'to be mineral land, and therefore excepted from the grant to said
DECISIONS RELATING TO THE PUBLIC LANDS. 173
railroad company," and the company's indemnity selection per list Xo.
13 for cancellation to that extent, and that McGrath had no ri^^lit to
purchase the land thus decided to be mineral, ander the fifth section
of the act of March 3, 1887 (24 Stat, 556).
It appears that said Walker duly instituted a contest December 19,
1891, against said company, alleging that the tracts above described
contained veins and lodes of rock in place bearing gold and were more
valuable as mineral than as agricultural land. In due course of pro-
ceedings, which are recited in said decision, but not necessary to be set
out here, the case came before the Department on appeal December 5,
1894, unreported, and it appearing that the testimony was insufficient
as a basis for a judgment, the case was remanded for a further hearing.
Said McGrath was allowed to intervene at the second hearing as the
purchaser from the company of the NE. ^ of said section.
The second hearing which was begun April 23, 1895, and ended May
7th, following, resulted in a decision July 22, 1896, by the local office,
in favor of Walker, which was affirmed by your office as already indi-
cated, whereupon McGrath and the company prosecute here their sepa-
rate appeals. Both appellants assign error (1) in not holding that the
company's right to the land vested at once upon its selection thereof,
and that its right coald not be defeated by the subsequent discovery of
mineral thereon, and (2) if the company's right did not then vest, in
holding that the land was shown to be valuable for its minerals; and
said McGrath assigns error (3) in holding that he was not entitled to
purchase the land from the government by reason of his alleged pur-
chase from the company, under the fifth section of the act of March 3,
1887 {svpra).
The land in controversy is within the indemnity limits of the grant
by act of March 3, 1871 (16 Stat., 579), to the said company, to aid in
the construction of its branch line, the location of which was definitely
fixed April 3, 1871 (Duncanson v. Southern Pacific K. B. Co., 11 L. D.,
538), and is embraced in the company's selection filed July 13, 1885, as
per indemnity list No. 13; but this selection, as to such land, has not
been approved by the Secretary of the Interior. This grant by the
23d section of the act is made^
with the same rights, grants, and privileges and snhjeot to the same limitations,
restriction^^ and conditions as were granted to said Southeru Pacific Railroad Com-
pany of California by the act of July twenty -seTen, eighteen hundred and sixty six.
Section 3 of the act last mentioned (14 Stat., 294) expressly reserved
''all mineral lands" from the operation of the act, and provided for the
selection "by said company," "under the direction of the Secretary of
the Interior" of indemnity lands for lands lost to the company within
the primary limits by reason of any grant, sale, reservation, occupation
by homestead or pre-emption settlers, or other disposition, prior to
definite location.
In the ease of the Wisconsin Central Railroad Company v. Price
174 DECISIONS RELATING TO THE PUBLIC LANDS.
Connty (133 U. S., 496), iuvolviDg tbe qaestiou as to when the title to
indemDity lands granted by Congress passed to the State of Wisconsin
to aid in the constraction of a certain line of railroad, in which the
provisions of the grant as to selection of such lands were similar to
those in the case under consideration, Mr. Justice Field, speaking for
the Supreme Court, said :
For Buch lands no title could pass to the company not only until the selections
were made by the agents of tbe State appointed by the govemory bnt until soch
selections were approved by the Secretary of the Interior. The agent of the State
made the selections, and they had been properly authorized and forwarded to the
Secretary of the Interior. But that oflQcer never approved them. Nor can such
approval be inferred from his not formally rejecting them The approval of the
Secretary was essential to the efficacy of tbe selections, and to give to the company
any title to the lands selected. His action in that matt'Or was not ministerial but
Judicial There could be no indemnity until a loss was established. And in
determining whether a particular selection could be taken as indemnity for the losses
sustained, he was obli);ed to inquire into the condition of those indenmity lands, and
determine whether or not any portion of tbem had been appropriated for any other
purpose, and if so, what portion had been thus appropriated, and what portion still
remained. This action of the Secretary, was required, not merely as supervisory of
the action of the agent of the State, but for the protection of tbe United States
against an improper appropriation of their lands. Until tbe selections were approved
there were no selections in fact, only preliminary proceedings taken for that purpose ;
and the indemnity lands remained unaffected in their title. Until then, the lands
which might be taken as indemnity were incapable of identification; tbe proposed
selections remained the property of the United States. The government was, indeed,
under a promise to give the company indemnity lands in lieu of what might be lost
by the causes mentioned. Bnt such promise passed no title, and, until it was
executed, created no legal interest which could be enforced in the courts.
The doctrine thus authoritatively declared has been recognized in
other decisions of the same court and stands to-day as law upon the
point under discussion. In this case no approval of the Secretary has
been given to the company's selection. The land, if mineral in charac-
ter, is now and heretofore has been open to exploration and purchase
under the mining laws of the United States — the grant to the company
having expressly excepted mineral lands from its operation.
It is practically conceded by the defendants in this case that the
laud contains some mineral — gold and silver. The soil is shown to be
poor and thin and the land at best to be of very little value for agri-
cultural purposes. Whether gold and silver have been shown to exist
in such quantities as to render the laud chiefly valuable for mining
purposes is a disputed question. The testimony upon this question is
somewhat conflicting. Both the local office and your office found in
the affirmative, that is, that the land is chiefly valuable for its minerals;
and the testimony is set out at some length in your office decision. I
find, upon careful examination of the testimony, no warrant therein to
dissent from the conclusion on this point reached by your office.
Although the best evidence of Walker's alleged location of said mining
claims — duly certified copies of the location notices — was not filed, the
DECISIONS RELATING TO THE PUBLIC LANDS. 175
testimony is ample to show that such locations existed, that of the
Greeu Moan tain having been made in 1891, and of the Lucky Boy in
1892. No objection was made to the admission of this testimony.
The presumption then was, at the date of the hearing, that these
locations had been made conformably to law and that the land was
mineral in character. This was a rebuttable presumption, but until
overthrown by competent and sufficient evidence it fixed the burden of
proof upon the defendants (Sweeney v. Northern Pacific R. R. Co., 20
L. D., 394) They not only failed to carry successfiilly the burden of
proving the non mineral character of the laud, but|>^ contra, the testi-
mony of their own witnesses, taken as a whole, is rather favorable than
otherwise to the mineral claimant. Samples of ore taken from the
dumps at various shafts and open cuts on the claims which are upon
the same vein extending from northeast to southwest diagonally through
the legal subdivisions described above, showed upon assays, as testified
by a mining engineer and expert for the defendants, various values in
gold and silver from a trace to nearly $24.00 per ton. These claims are
shown to be but little developed as yet. It is also shown that their
mineral value increases as their development is extended.
The fact that a milling test of thirteen tons of ore taken from a
development shaft on the Lucky Boy, comparatively near the surface,
in 1892, ran about $6.50 per ton in gold and silver, although scarcely
enough to pay for the milling by the inadequate process employed, as
testified by another of defendant's witnesses, is not wholly unfavorable
to the contestant, to say the least. The contestant has expended
about $800 on the two claims, and from the testimony introduced by
him the present value of the Lucky Boy, which is the better developed
claim — although some of the richest ore has recently been found on
the Green Mountain— is from $4,000 to $5,000, and the Green Mountain
from $1,000 to $3,000. I am well satisfied that the rule laid down by
the Department in the case of Castle v. Womble (19 L. D., 456), " that
where minerals have been found, and the evidence is of such a charac-
ter that a x>erson of ordinary prudence would be justified in the further
expenditure of his labor and means with a reasonable prospect of sue-
cess, in developing a mine, the requirements of the statute have been
met" applies in this case in favor of the contestant.
Section 5 of the act of March 3, 1887, supra^ under which McGrath
claims the right to purchase from the United States, reads:
That where any said company shaU have sold to citizens of the United States, or
to persons who have declared their intention to become such citizens, as a part of
it« grant, lands not conveyed to or for the use of sach company, said lands being
the nnmbered sections prescribed in the grant, and being coterminous with the con-
atractcd parts of said road, and where the lands so pold are for any reason excepted
from the operation of the grant to said company, it shall be lawful for the bona fide
parchaser thereof from said company to make payment to the United States for said
lands at the ordinary government price for like lands, and thereupon patents shall
iaaoe therefor to the said bona fide purchaser, his heirs or assigns : Provided, That
176 DECISIONS RELATING TO THE PUBLIC LANDS.
all landii shall be excepted from the proTisions of thin section which at the date of
such sales were in the bona fide occnpation of adverse claimants nnder the pre-
emption or homestead laws of the United States, and whose claims and occnpation
have not since been yoluntarily abandoned, as to which excepted lands the said pre-
emption and homestead claimants shall be permitted to perfect their proofs and
entries and receive patents therefor : Provided further. That this section shall not
apply to lands settled upon subsequent to the first day of December, eighteen hun-
dred and eif!hty-two, by persons claiming to enter the same under the settlement
laws of the United States, as to which lands the parties claiming the same aa afore-
said shall be entitled to prove up and enter as in other like cases.
I am convinced, after careful examination and consideration of this
section in the light of the laws relative to the acquisition of title to
mineral landn, and the decisions of this Department and the supreme
court of the United States, bearing upon the question, that this section
was not intended to confer upon the purchaser therein indicated from
^^any said company" the right to purchase from the United States
lands known to be valuable for their minerals. Such lands are subject
to disposition by the United States under the mining laws only. (Sec-
tions 2318, 2319 Revised Statutes: DeflTeback v, Hawke, 115 U. S., 392;
Davis's Administrator r. Weibbold, 139 U. S., 607.)
The company's objection urged against the proposed cancellation of
its selection as to the land embraced in said mining claims to the effect
that, inasmuch as no record evidence of the locations is on file in the
case, the boundaries and area of the claims are not definitely shown,
segregation of these claims from the tracts in which they lie can not
be made, is without force in this proceeding. Segregation is not nec-
essary to the judgment of cancellation. The necessity for segregation
will not arise until in connection with favorable action looking to the
approval and patenting of these tracts, in whole or in part, under the
company's selection, or in connection with other proceedings to secure
title to these tracts or some portion thereof. It is shown, as already
stated, that due locations of these claims have been made, and from
these locations the boundaries and area of the claims can be determined
whenever necessary so to do. The parol evidence which shows these
locations was admitted without objection by the parties defendant and
is sufficient for purposes of this decision. Objection to such evidence
comes too late, therefore, on appeal.
The decision of your office is affirmed in accordance with the fore-
going views. The company's selection will be canceled as to land
embraced in said mining claims.
Thb State of Flobida.
Motion for review of departmental decision of August 27, 1896, 23
L. D.y 237, denied by Secretary Francis, February 23, 1897.
DECISIONS RELATING TO THE PUBLIC LANDS. 177
RELt5^QUISHMENT— AGENT- ADVERSE CLAIM.
Wood r. Wood.
A relinqaishment executed for the benefit of one holding a confidential and fiduciary
relation to the entryman, can not be recognized as of any validity in the presence
of a just and equitable adverse claim.
Secretary Francis to the Commissioner of the General Land Office j Feb-
{I. H. L.) ruary 23, 1897. (J. L.)
This case involves the S. J of the NE. J and the !N". J of the SE. J of
section 33, T. 6 X., E. 21 W., Gainesville land district, Florida. On
May 29, 1888, Eobert E. Wood made homestead entry No. 18,658 of
said tract, claiming settlement on September 15, 1887, and improve-
ments consisting of dwelling-house, kitchen, stable, crib, cotton-house,
wagon-shelter, and twenty acres in cultivation. On March 24, 1894,
Willis C. Wood filed in the local office a paper, dated February 19,
1894, purporting to be Eobert E. Wood's relinquishment of said tract
to the United States. Thereupon Eobert E. Wood's entry was can-
celed, and Willis O. Wood made homestead entry No. 24,504 of said
tract.
Robert E. Wood died on April 11, 1894. On June 19, 1894, his widow,
Alice Wood, filed her affidavit of contest against Willis 0. Wood's
entry in the following words :
To ike Register 4r Receiver of the United States Land Office, at Gainesville, Fla,
Yoar petitioner, Mfb. Alice Wood, being over the age of twenty one years and a
native bom citizen of the United States, brings this her petition of contest agaiust
Willis C. Wood and for cause says —
That one B. F. Cockcroft about the year A. D. 1874 settled upon, improved and
caltivated certain public lands to-wit:—
The S. i of NK. i andN. + of SE. iof Sec. 33, T. 6 N., R. 21 W., situated in Walton
county, Florida.
That about the year A. D. 1884 Robert JohnsoUj the petitioner's father, purchat^ed
for a good and valuable consideration the claim and improvements of the said B. F.
Cockcroft in and to said land.
That your petitioner and her father, the said Robert Johnson, after the purchase
aforesaid took possession of said land and continuously resided upon and cultivated
the same until about the year A. D. 1887 when the said Robert Johnson died.
That the said Johnson h^ft beside your petitioner one other heir and the said heirs
amicably divided the estate, your petitioner receiving as a part of her share the
claim and improvements on said land.
That about the year A. D. 1886 your petitioner was married to one Robert E. Wood
who until his death resided with your petitioner on said land.
That the said Robert E. Wood about the year 1888 made application for homestead
tntty on said land which application was granted on the29tli day of May, A. D. 1888.
That on the 10th day of April, A. D. 1894, the said Robert E. Wood died, and
shortly after his death your petitioner duly applied to Hon. Alex. Lynch, register,
Gainesville, Florida, for permission to make final proof as widow of Robert E. Wood
deceased.
That your petitioner was informed by the said register that the homestead entry
of Robert E, Wood had been relinquished to Willis C. Wood and that the entry of
10671— VOL 24 12
178 DECISIONS RELATING TO THE PUBLIC LANDS.
the said Robert E. Wood was canceled on March 24th, A. D. 1894 and that Willis C.
Wood had entered the same.
That the said Willis C. Wood is not in possession of said laud but your petitioner
is in possession of, resides on, and cultivates the same and has ever since the pur-
chase by her father from the said B. F. Cockcroft.
That yonr petitioner is advised, informed and believes that her hnsband, the said
Robert E. Wood, nevt^r relinquished said entry to the said Willis C. W-ood and that
the said relinquishment vr&s only gotten up to defraud your petitioner out of said
land.
That your petitioner is poor and wholly dependent upon the products of said land
for support.
Wherefore your petitioner asks that she be permitted to prove the foregoing alle-
gations, and that said ])reteuded relinquishment by Robert £. W^ood be canceled, and
that the entry of Robert K. Wood he reinstated, that your petitioner be allowed to
make final proof as widow of Robert £. Wood deceased.
That you name a day and place where she will be permitted to prove the foregoing
allegations; that the proper notice be given the said Willis C. Wood of said bearing
that you grant such other or farther relief as to j^ou will seem just and right and
that she pay the expenses of this contest.
After a hearing at which both parties were present in person and by
counsel, the local officers, on October 19, 1894, found as matter of fa€t,
'*that the relinquishment on file was not executed by Robert E. Wood,
but by Willis C. Wood/' And thereupon they recommended that
Willis C. Wood's eutry No. 24,504 be canceled; that Robert E. Wood's
entry No. 18,658 be reinstated; and that Alice Wood, the widow^ of
Robert K. Wood be permitted to make final proof thereon.
Willis O.Wood appealed ; and on March 23, 1895, your office reversed
the decision of the local officers and allowed his entry No. 24,504 to
stand, subject to further appeal.
Alice Wood appealed to this Department; and on April 24, 1896, the
Department affirmed the decision of your office. On June 10, 1896, the
Department entertained a motion for review filed by Alice Wood. On
August 28, 1896, said motion was dismissed. And on September 4,
1896, Alice Wood by her attorney filed here, her petition for a re-review
and re-examination of the case, and a revocation of the former de})art-
mental orders therein. Said petition was entertained on October 6,
1896, and the case is now before the Secretary for further consideration.
At the hearing, the chief controversy between the parties was,
whether the signature to the relinquishment was genuine or not!
Whether the relinquishment was or was not a forgery, '* only gotten
up to defraud the petitioner out of said land"! The local officers
favored the ^* hypothesis of forgery ", and found as hereinbefore stated
" that the relinquishment on file was not executed by Robert E. Wood
but by Willis C. Wood." This finding of the local officers was over-
ruled by your office, and also twice by this Department. The i)resent
Secretary of the Interior will not disturb the finding of his predecessor
as to this point.
But it is obvious that the minds of the officers who rendered the
I)revious decisions in this case, were chiefly occupied with considera-
DECISIONS RELATING TO THE PUBLIC LANDS. 179
tion of the testimony as it related to the question of forgery. Conse-
quently other facts and matters clearly established by the evidence,
and involving questions of law and equity material to a just judgment
in this case, were not fully considered.
From and after the year 1880, the time of the recognized development
of the cancerous disease which terminated in Robert E. Wood's death,
Willis C. Wood sustained towards his elder brother Robert, an intimate
and confidential fiduciary relation. He was Robert's nurse, his pro-
tector, his adviser, his agent, his attorney at-law, the keeper of his
accounts and the manager of his finances. Robert's confidence in Wil-
lis was absolute, and Willis's influence over Robert was unbounded.
This relation imposed upon Willis the duty of protecting Robert against
himself; against the consequence of any act that might be prompted
by a sense of helplessness and dei)endence, and by fraternal gratitude
and affection. It matters not whether the proposition for a relinquish-
ment of the homestead, was initiated by Willis or by Robert, Willis
was not authorized to accept it. Neither law nor equity will permit
advantage to be taken of such confidence and influence. (See Story's
Equity Jurisprudence Sections 307,311 and others.) In view of the
testimony showing the relations between the parties as herein set out,
the burden was upon Willis to prove the legality and righteousness of
the relinquishment in question by clear and convincing evidence. The
testimony falls far short of this requirement of law and equity.
On February 19, 1894, Robert E. Wood went as usual to his brother's
mill to have his face dressed. Then and there, in the presence of
Willis, and of his niece and her husband (who were also employees of
Willis), the relinquishment was executed and attested. It was not
filed until March 24, thirty-three days afterwards. Robert E. Wood
lived until AprU 11, eighteen days after that. During those fifty-one
days Willis made no attempt to take possession of his alleged home-
stead. The whole transaction was carefully concealed from Mrs. Alice
Wood. When after the lapse of a decent interval, she applied at the
local office to make final proof of her deceased husband's homestead
entry, she* was told by the register what had been done, so far as shown
by the records of his office.
From the year 1882, Mrs. Wood lived upon the land with her father
Robert Johnson until his death in September, 1887, a period of five
years. In January, 1887, Robert E. Wood married her, and moved upon
tbe land, and lived there with her and her father until the father's
death. Being then a married woman, and so disqualified to make entry
in her own right, her husband Robert E. Wood made entry in his own
name on May 29, 1888, claiming settlement on September 15, 1887, the
date of the wife's father's death. Mrs. Wood lived upon the land with
her husband from September 15, 1887, until the day of his death, Apnl
11,1894; another period exceeding five years. But for the interven-
tion of the relinquishment aforesaid, Mrs. Wood would have been
180 DECISIONS RELATING TO THE PUBLIC LANDS.
clearly entitled to make proof under her husband's entry, and thus
acquire title to the whole tract.
This Department after mature consideration of all the facts and
circumstances, will not permit Willis C. Wood to appropriate to his own
use the whole real estate of his trustful and dependent brother, under
color of a relinquishment to the United States.
For the foregoing reasons, the judgment of this Department award-
ing the land in controversy to W^illis C. Wood is hereby revoked. The
judgment of your office of March 23, 1893, is reversed ; the alleged
relinquishment by Robert E. Wood filed in the case, is declared null
and void; Willis C. Wood's entry No. 24,504 is hereby canceled ; Robert
E. Wood's homestead entry No. 18,658 will be reinstated; and Mrs.
Alice Wood, his widow, will be permitted to make final proof thereon.
RAILROAD GRANT— L^VTERAL LIMITS— UXSURVEXED LANDS.
CoLLETT r. Northern Pacific R. R. Co.
The maps, tract books, aud official plats of survey, on file in the General Land Office,
mast determine the location of railroad lines, and the distances therefrom of
lands in dispnte between railroad companies and settlers.
The fact that lands are uusnrveyed does not except them from the operation of a
railroad grant on definite location.
Secretary Francis to the Commissioner of the General Land Office^ Feb-
(I. H. L.) ruary 23, 1897, (J. L. M'C.)
Your office by letter of November 19, 1895, transmitted to the Depart-
ment the record in the case of Presley S. Collett r. Northern Pacific
Baikoad Company, involving lot 9 of Sec. 9, T. 16 N., R. 8 W., Olympia
land district, Washington.
Counsel for said company have filed a motion to dismiss the appeal,
for the reason that the same was not served upon F. M. Dudley, the
general land agent of the company, and the person designated by the
company as the attorney upon whom all notices should be served, but
upon the local land agent of the company at Tacoma.
In the essentially similar case of Boyle v. The Northern Pacific Kail-
road Company (22 L. D., 184), it was held that service upon Thomas
Cooper, the land agent of said company at Tacoma, was sufficient
service.
The motion to dismiss, m so far as it is based upon insufficiency of
service, must therefore be denied, and the case considered upon its
merits.
The tract in controversy is opposite that portion of the road of said
company extending from Portland, Oregon, to Tacoma, Washington,
the grant for which was made by the joint resolution of May 31, 1870
(16 Stat., 378). It is within the withdrawal on map of general route of
DECISIONS RELATING TO THE PUBLIC LANDS. 181
Angost 13, 1870, and on definite location of the road, September 13,
1873, it fell within the primary limits of the grant. The records show
no entry or filing covering the land at the said dates, or at the date of
the grant, nor does CoUett allege settlement prior to May 15, 1886.
The allegations of error are as follows, in substance:
(1) In holding that said tract was within the primary limits of the
grant to said company, for the reason that it is more than forty miles
from the main line of its road.
(2) In not holding that, the land being unsurveyed, the appellant
had a prior right to the land under the act of May 14, 1880.
Respecting the above allegations of error it may be said:
(1) The maps, text-books, and official plats of survey on file in your
office must be the guide — there can be no other or better guide — as to
the locations of railroad lines, and the distances therefrom of lands in
conflict between railroad companies and settlers. A careful examina-
tion of such maps and plats of survey shows that the tract in contro-
versy is considerably less than forty miles from the line of the Northern
Pacific Eailroad, at its nearest point.
(2) If the third section of the act of May 14, 1880 (21 Stat., 140),
gives the appellant in this case a superior right to the land, it would
render it necessary to award settlers upon all surveyed lands as well,
the tracts upon which they have settled — thus at once deciding all con-
flicting claims (where settlement has been made at any time) against
the railroad company. For the language of said act is that it is
intended for the relief of "any settler who has settled, or who shall
hereafter settle, on any of the public lands of the United States,
whether surveyed or unsurveyed."
The question, however, has been repeatedly and uniformly decided
by the Department adversely to the appellant's contention in this
respect. Thus in the case of Olney v. The Hastings & Dakota Railway
Company, it was held (10 L. D., 136, syllabus) :
Definite location of the line of ro^ excludes the Buhsequent acquisition of set-
tlement rights on unsurveyed lands subject to the grant.
The decision of your office was correct, and is hereby affirmed.
HOMESTEAD-SETTLEMENT RIGHT- WIDOWS-REMARRIAGE.
Bellamy v. Cox.
The settlement of a homesteader, 'who dies prior to the expiration of the time given
for the assertion of his right, without having made application to enter, inures
to the benefit of his widow ; and her subsequent remarriage will not defeat her
claim as the successor to the right of her deceased husband.
Secretary Francis to the Commissioner of the General Land Office, Feb,
{L H. L.) ruary 23, 1897, (W. A. E.)
On September 25, 1893, Johu H. Cox made hoDiestead entry for lots
1 and 2 and the S. J of the NE. i of Sec. 3, T. 20 N„ E.-4 E., Perry,
Oklahoma, laud district.
182 DECISIONS RELATING TO THE PUBLIC LAND8.
On November 15, 1893, Lou B. Crawford filed homestead application
for the same land. With her application, she filed an affidavit alleg-
ing, substantially, that on September 16, 1893, she was the wife of
William C. Crawford, since deceased; that Crawford went ui>on the
land in controversy on that date and made settlement thereon prior to
the settlement of the entryman and prior to the time of his entry.
Affiant further alleged that her husband died October 20, 1893, aod
at the time of his settlement he was fully qualified to make entry of
the land.
A hearing was ordered, and the case came up for trial on March 12,
1895. The plaintiff in the meantime had changed her name by marriage
to Bellamy.
On March 18, 1895, the local officers rendered their decision in favor
of the plaintiff. From this action Cox appealed, and on October 11,
1895, your office sustained the action of the register and receiver and
held the entry of Cox for cancellation.
The entryman's further appeal brings the matter before the Depart-
ment.
The testimony shows that William C. Crawford made the run on
September 16, 1893, from the south side of the " Cherokee strip," and
that he was the first person to reach the laud in controversy and stick
a stake. His wife followed in a wagon, arriving on the land the same
afternoon. About three o'clock in the afternoon Crawford left, but his
wife remained on the tract. The following Tuesday he came back,
remained until Wednesday, was then taken sick, and died the follow-
ing month. Before he left the land he had a well dug, a foundation
laid for a house, and about a quarter of an acre broken. Mrs. Craw-
ford returned to the land in December and spent one day and night
there. The following May she was on the tract two days and nights.
Her improvements at the date of the hearing consisted of nine acres
broken aud a box house, ten by twelve.
Cox settled on the same tract on the afternoon of September 16, 1893,
subsequent to Crawford's settlement. He cut four small poles for a
foundation, then left the claim about sundown and did not return until
September 23, when he plowed one furrow around the land. In October,
1893, he built a small house and furnished it. The greater part of his
time during the winter of 1893-4 was spent in old Oklahoma, but in
the spring of 1894 he established his permanent residence on the land.
At the date of the trial he had about one hundred and thirty acres
enclosed with a wire fence and about fifty acres broken.
It thus appears that Crawford was the first settler and consequently
had the superior right to the land. He had three mouths from date of
settlement in which to assert his rights by making entry or by initiat-
ing a contest against an intervening entry. Before that time expired
he died.
In the case of Prestina B. Howard, 8 L. D., 286, it was held that
DECISIONS RELATING TO THE PUBLIC LANDS. 183
since the passage of the act of May 14, 1880, the right given the widow,
heirs, or devisee of a deceased homesteader by section 2291 of the
Revised Statutes to fulfill the law, make proof, aud receive patent,
inures to them as well when the homestead right rests on settlement
under said act as when founded on formal application to enter. See
also the case of Tobias Beckner, G L. D., 134.
Mrs. Crawford, having thus succeeded to the rights of her deceased
husband, immediately took steps to protect those rights. She filed
her formal application to enter and continued the cultivation and
improvement of the tract. It was not necessary for her to reside on
the land. Tauer r. The Heirs of Walter A. Mann, 4 L. D., 433.
The principal question we have to consider, then, is what effect her
remarriage had on her rights.
It was held in the case of Prestina B. Howard, above cited, that
while a married woman is not authorized to initiate or make a home-
stead entry in her own right, she may, as the heir of a deceased
homestead claimant, make application, submit proof, and receive patent.
The plaintiff here claims this land, not in her own right, but by vir-
tue of her succession to the rights of her deceased husband. She did
not, by her remarriage, forfeit those rights.
Your office decision is accordingly affirmed, Cox's entry will be can-
celed, and the plaintiff will be allowed to perfect her homestead appli-
cation.
OIL LAXI>S.. PT^VCER ENTRY.
Circular.
Department of the Interior,
General Land Office,
Washington, D, C, February 25^ 1897.
Registers and Receivers,
U, 8. Land Offices.
Sirs: Your attention is directed to the act of Congress, approved on
February 11, 1897, as follows:
[PuBUC— No. 57. J
AN ACT to authorize the entry and patenting of lands containing petroleum and other mineral oils
under the placer mining Iaw.s of the United States.
Be it encLcted hy the Senate and House of Repreaentalivea of the United States of America
in Congress assembled, That any person antborized to enter lands nnder the mining
laws of the United States may enter aud obtain patent to lands containing petro-
leam or other mineral oils, and chiefly valuable therefor, under the provisions of the
laws relating to placer mineral claims : Provided, That lands containing such petro-
leum or other mineral oils which have heretofore been filed upon, claimed, or im-
proved as mineral, but not yet patented, may be held and patented under the
provisions of this act the same as if such filing, claim or improvement were subse-
qnent to the date of the paesage hereof.
184 DECISIONS RELATING TO THE PUBLIC LANDS.
It is to be observed that though the provisions of the placer mineral
laud laws are by said act extended so as to allow the location and eutry
thereunder of public lands chiefly valuable for petroleum or other min-
eral oils, yet the substances named are not expressly stated to be
mineral, in view of which it would appear that the prior assertion of a
legal adverse claim to laud valuable for petroleum or other mineral oils
would preclude the acquisition of any rights thereto under the pro-
visions of the mineral land laws.
Claims to lands of the character mentioned, heretofore initiated
under the mineral land laws are by said act expressly confirmed, bat
this confirmation must, of course, be construed as applying only to
cases where, prior to February 11, 1897, no valid adverse claim to lands
involved had been acquired under other than the mineral land laws.
In proceeding under this law, you will act in accordance with the
views herein set forth.
Very respectfully, S. W. Lamokbux,
Commissioner,
Approved :
David R. Francis,
Secretary,
GREER COUXTY, OKLAHOMA-ACT OF JANUARY 18, 1897.
Instructions.
Department of the Interior,
General Land Office,
Washington, D, C, February 25, 1897,
Register and Receiver,
Mangum, Oklahoma Territory.
Gentlemen: Tour attention is called to the provisions of the act of
Congress, entitled "An Act To provide for the entry of lands in Greer
County, Oklahoma, to give preference rights to settlers, and for other
purposes", approved January 18, 1897 (Public No. 15), a copy of which
is hereto attached.
Sec. 1 provides that every person quali&ed under the homestead
laws of the United States, who on March 16, 1896, was a bona fide
occupant of land within the territory established as Greer county,
Oklahoma, shall be entitled to continue his occupation of such land
with improvements thereon, not exceeding one hundred and sixty
acres, and shall be allowed six mouths preference right from the pas-
sage of this act within which to initiate his claim thereto.
A party desiring to make a homestead entry under this section,
must present his formal application with the usual affidavits accom-
panied by the fee and commissions required in an entry of minimum
land, and a special affidavit showing that he was on March 16, 1896, a
DECISIONS RELATING TO THE PUBLIC LANDS. 185
bona fide occupant of the land he applies to enter. Title may be i)er-
fected at the expiration of five years from date of entry or within two
years thereafter, under the provisions of the homestead law, or such
person may receive credit for all time during which he or those under
whom "he claims have continuously occupied the land prior to March
16, 1896. Every such person shall also have the right for six months
prior to all other persons to purchase at one dollar an acre, in five equal
annual payments, any additional land of which he was in actual posses-
sion on March 16, 1896, not exceeding one hundred and sixty acres,
which prior to said date had been cultivated, purchased or improved
by him.
A party wishing to avail himself of the above privileges, must present
his application to purchase (form 4-001) together with the prescribed
amount of purchase money for the land desired, which need not be con-
tigaous to his homestead entry, together with evidence showing that he
had prior to March 16, 1896, cultivated, purchased, or improved the
same; evidence of cultivation or improvement must consist of the aflS-
davit of the applicant corroborated by the testimony of two or more
witnesses: or in case the claim is based on purchase, an abstract of
title, or other documentary evidence, showing the transfers under which
the party claims as purchaser. No certificate can be issued until the
entire amount of the purchase money shall have been paid : but the
receiver will issue his receipt (form 4-140, a) properly modified, for
the amount paid and deliver a duplicate thereof to the purchaser.
Wlien any person entitled to a homestead or additional land as above
provided, is the head of a family, and though still living, shall not take
snch homestead or additional land, within six months from the passage
of this act, any member of such family over the age of twenty-one years,
other than husband or wife, shall succeed to the right to take such
homestead or additional land for three months longer, and any such mem-
ber of the family shall also have the right to take, as before provided,
any excess of additional land actually cultivated or improved prior to
March 16, 1896, above the amount to which such head of the family is
entitled, not to exceed 160 acres to any one person thus taking as a
member of such family.
Application for homestead or additional entry under this provision,
must be made in the same manner as heretofore prescribed.
In case of the death of any settler who actually established residence
and made improvement prior to March 16, 1896, the entry may be made
by the party in interest, according to section 2291 U. S. R. S.
Section 2 provides for the disposal of all land in said county not
occupied, cultivated or improved, as provided in section 1, or not
included within the limits of any townsite or reserve, to actual settlers
only, under the provisions of the homestead law.
Any person applying to make entry under this section prior to the
expiration of the preference right granted by section 1 will be allowed to
186 DECISIONS RELATING TO THE PUBLIC LANDS.
make entry, subject to any valid adverse right under said section 1, on
filing bis affidavit that the laud applied for is not occupied, cultivated
or improved by any other person.
Section 3 provides that the inhabitants of any town located in said
county shall be entitled to enter the same as a townsite under the pro-
visions of section 2387, 2388, and 2389 of the Revised Statutes.
Instructions relative to entry of townsites under said sections of the
Revised Statutes are found in circular of this office dated July 9, 1886
(5 L. D. 265).
Under the proviso to this section of the law, the corporate authori-
ties of the town, or the judge of the county court, who shall ent^r the
townsite, shall accord to all persons a preference right to the town lots
upon which they have made or own improvements.
By section 4, sections numbered sixteen and thirty-six are reserved
for school purposes as provided in laws relating to Oklahoma, and sec-
tions thirteen and thirty-three in each township are reserved for such
purpose as the legislature of the future State of Oklahoma may pre-
scribe. That whenever any of the lands reserved for school or other
purposes under this act, or under the laws of Congress relating to
Oklahoma, shall be found to have been occupied by actual settlers or
for town site purposes or homesteads prior to March 16, 1896, an equal
quantity of indemnity lands may be selected as provided by law.
Under section 5, the right of entry to land within said county, which
on March 16, 1896, was occupied for church, cemetery, school, or'other
charitable or voluntary purposes, not for profit, is given to the proper
authorities in charge thereof.
In each case the maximum area to be so entered is two acres. Sec-
tions numbered 16 and 36, within each township, within said county,
are reserved by section 4 of this law for school purposes, and are
exempted from the operations of this section.
it will not be practicable for you to locate land applied for under this
section with the certainty required for an entry. You will, then, upon
the presentment of such an application, forward the same to this office
for appropriate action.
Section 7 provides that all laws authorizing commutations of home-
steads in Oklahoma shall apply to Greer county. This makes applica-
ble section 22 of the act of May 2, 1890 (26 Stat., 81), where the com-
mutation of ^ homestead entry for townsite purposes is sought.
Instructions relative to procedure under said section 22 of the said
act are found in circular of this office, dated November 30, 1S94 (19
L. D., 348).
Commutation of homestead entries under section 7 of this act, except
for townsite purposes, will be governed by the provisions of sectioa 21,
act of May 2, 1890 (26 Stat., 81), which requires the payment of $1.25
per acre and proof of compliance with the homestead law for not less
than twelve months from date of locating upon said homestead.
It is exi)ected that tlie above instructions will be found sufficient for
DECISIONS RELATING TO THE PUBLIC LANDS. 187
your guidance, but should any case arise which is not covered thereby,
you will transmit the papers in such case to this office for instructions.
Very respectfully,
E. F. Best,
Assistant Commissioner,
Approved :
David R. Francis,
Secretary.
[PirBLic — No, 15.]
AN ACT t«> provide for the entry of lands in Greer County, Oklahoma, to give pref-
erence rights to settlers, and for other purposes.
Be it erutcted by the Senate and House of Representatives of the United
States of Ame^Hca in Congress assembled^ That every person qualified
nnder the homestead laws of the United States, who, on March six-
teenth, eighteen hundred and ninety-six, was a boua fide occupant
of land within the territory established as Greer county, Oklahoma,
sliall be entitled to continue his occupation of such land with improve-
ments thereon, not exceeding one hundred and sixty acres, and shall
be allowed six months preference right from the passage of this act
within which to initiate his claim thereto, and shall be entitled to i>er-
fect title thereto under the provisions of the homestead law, upon pay-
ment of land office fees only, at the expiration of five years from the
date of entry, except that such person shall receive credit for all time
during which he or those under whom he claims shall have continuously
occupied the same prior to March sixteenth, eighteen hundred and
ninety-six. Every such person shall also have the right, for six months
prior to all other persons, to purchase at one dollar an acre, in five
equal annual payments, any additional land of which he was in actual
possession on March sixteenth, eighteen hundred and ninety-six, not
exceeding one hundred and sixty acres, which, prior to said date, shall
have been cultivated, purchased, or improved by him. When any per-
son entitled to a homestead or additional land, as above provided, is
the head of a family, and though still living, shall not take such home-
stead or additional land, within six months from the passage of this
act, any member of such family over the age of twenty-one years,
other than husband or wife, shall succeed to the right to take such
homestead or additional land for three months longer, and any such
member of the family shall also have the right to take, as before pro-
vided, any excess of additional land actually cultivated or improved
prior to March sixteenth, eighteen hundred and ninety-six above the
amount to which such head of the family is entitled, not to exceed one
hundred and sixty acres to any one person thus taking as a member of
such family.
In case of the death of any settler who actually established residence
and made improvement on land in said Greer county prior to March
188 DECISIONS RELATING TO THE PUBLIC LANDS.
sixteenth, eighteen hundred and ninety-six, the entry shall be treated
as having accrued at the time the residence was established, and sec-
tions twenty-two hundred and ninety-one and twenty-two hundred and
ninety-two of the Revised Statutes shall be applicable thereto.
Any person entitled to such homestead or additional land shall have
the right prior to January first, eighteen hundred and ninety-seven,
from the passage of this act to remove all crops and improvements he
may have on land not taken by him.
Sec. 2. That all land in said county not occupied, cultivated, or
improved, as provided in the first section hereof, or not included within
the limits of any town site or reserve, shall be subject to entry to actual
settlers only, under the provisions of the homestead law.
Sec. 3. That the inhabitants of any town located in said county shall
be entitled to enter the same as a town site under the provisions of
sections twenty-three hundred and eighty-seven, twenty-three hundred
and eighty-eight, and twenty-three hundred and eighty-nine of the
Revised Statutes of the United States: Provided, That all persons who
have made or own improvements on any town lots in said county made
prior to March sixteenth, eighteen hundred and ninety-six, shall have
the preference right to enter said lots under the provisions of this act
and of the general town-site laws.
Sec. 4. Sections numbered sixteen and thirty-six are reserved for
school purposes as provided in laws relating to Oklahoma, and sections
thirteen and thirty-tliree in each township are reserved for such pur-
pose as the legislature of the future State of Oklahoma may prescribe.
That whenever any of the lands reserved for school or other purposes
under this act, or under the laws of Congress relating to Oklahoma,
shall be found to have been occupied by actual settlers or for town-site
purposes or homesteads prior to March sixteenth, eighteen hundred
and ninety-six, an equal quantity of indemnity lands may be selected
as provided by law.
Sec. 5. That all lands which on March sixteenth, eighteen hundred
and ninety-six, are occupied for church, cemetery, school, or other chari-
table or voluntary- purposes, not for profit, not exceeding two acres in
each case, shall be patented to the proper authorities in charge thereof,
under such rules and regulations as the Secretary of the Interior shall
establish, upon payment of the government price therefor, excepting
for school purposes.
Sec. 6. That there shall be a land office established at Masgum, in
said county, upon the passage of this act.
Sec. 7. That tlie provisions of this act shall apply only to Greer
county, Oklahoma, and that jill laws inconsistent with the provisions
of this act, applying to said territory in said county, are hereby
repealed; and all laws authorizing commutations of homesteads in
Oklahoma shall apply to Greer county.
Sec. 8. That this act take effect from its passage and approval.
Approved, January 18, 1897.
DECISIONS RELATING TO THE PUBLIC LANDS. 189
HOM£ST£^VI> CONTEST-SETTL.EMENT RIGHT-BURDEN OF PROOF.
Irwin p. Newsom (On Keview).
No right can be secured under the conteBt of one attacking an entry on the ground
of prior settlement, m the absence of some special equity shown, if the charge
as made is not established by a preponderance of the evidence.
Secretary Francis to the Commissioner of the General Land Office, Feb-
(I. H. L.) ruary 27y 1897. (C. W. P.)
On July 18, 1896, you transmitted the motions of John W. Irwin and
Charles H. Newsom, for review of the decision of the Department of
April 28, 1896, in the case of said John W. Irwin against the said
Charles H. Newsom (22 L. D., 577). Upon examination of said motions,
the same, under date of September 5, 1896, were entertained by the
Department for argument, as provided for by rule 114 of practice.
The land involved is the NW. J of Sec. 34, T. 23 N., R. 2 W., Perry
land district, Oklahoma.
On September 16, 1893, the day on which the land was open to set-
tlement, these parties made settlement on said land.
On September 25, 1893, Newsom made homestead entry of said laud.
On October 25, 1893, Irwin filed affidavit of contest, alleging prior
settlement.
A bearing was had; the local officers recommended the cancellation
of Newsom's entry, and that Irwin be allowed to make homestead entry
of the land. Newsom appealed.
Your office rendered a decision to the effect, that 3''0u were unable to
determine who was the prior settler, and thought the case should be
settled between the parties, and that each of them should make entry
of such legal subdivisions of the land as they may agree upon, and
your office reversed the judgment of the local officers, and ordered that,
in case of the failure of the parties to compromise, as suggested, within
sixty days, Newsom's entry be canceled as to the E. J of the NW, ^ of
the section, and the right of entry for the E. J be awarded to Irwin,
The Department, on appeal, said :
1 agree with your office that tbe evidence is so conflictlDg that it is impossible to
decide which of the two claimants was the prior settler ; hut I can not agree with
that part of your office decision which directs that, in case of failure of the parties
to agree to a compromise, the land be divided between them. I think in such a case
as this, if the parties can not agree, the land should be sold to the highest bidder
of the two. And your office decision was modified accordingly.
In the case of Sumner v. Eoberts, 23 L. D., 201, it was held by the
Department that
in cases where entries have been made and contests thereafter instituted upon the
ground of prior settlement, unless the contestant shall successfully carry the burden
of showing by proof that his settlement antedates the entry and the settlement of
the entryman, the rule that the entry will stand will be adhered to. The cases in
which this rule would seem to have been disregarded will no longer be regarded
190 DECISIONS RELA.TING TO THE PUBLIC LANDS.
as precedents to be followed. The fact of prior settlement is lawful authority for
the cancellation of nn entry of record, but evidence which leaves the qaestion in
doubt as to which settled flrst, tbe entrymau or the contestant, and is without some
degree of preponderance in favor of the contestant, will leave the entry intact.
Even if the evidence should show that settlement was made simultaneously by a
contestant and an entryman, this will not authorize the cancellation of an entry
properly of record as was held in the recent case of Perry ei al. r. Haskins (23 L. D., 50).
In the more recent case of Behar v. Sweet (24 L. D., 158), it is said:
While the ruling that a settler claiming prior settlement over one having an entry
of record must establish his claim by a preponderance of evidence, will be adhered
to in most cases, the Department will, when justice and equity require it, and great
hardship would result were the rule applied, depart so far from the rule as to reach
an equitable decision in the case.
As there does not appear to be any particular equity in favor of Irwin,
both parties having shown good faith in their settlement, the rule must
be applied in the present case. Your office and the Department have
impliedly found that Irwin failed to show by a preponderance of evi-
dence that he was the prior settler, and 1 see no reason to reverse that
finding.
In his brief, the attorney for Irwin calls the attention of the Depart-
ment to the fact tliat two of Newsom's witnesses, Shaw and Barnhisel,
were impeached upon the trial of this contest, and that no recognition
of this fact was made by the decision of the Commissioner, and says:
This fact, no doubt, wan the turning point in the minds of the register and receiver
in deoiding for plaintiff and against the defendant. The testimony of these wit-
nesses, taken in connection with the testimony of the plaintiff, Irwin, wherein he
swears that he saw the defendant come on to this tract of land from the west aide
after he, the plaintiff, was already located thereon, should certainly leave no donbt
in the mind of the reviewing court that plaintiff* was first to reach the land, and that
the decision of the local office should be upheld and the preference right of entry
awarded to the plaintiff.
Two witnesses were called t-o impeach the credit of the witness
Shaw — one Eaybourn and one Holeman. Raybourn testified that lie
knew nothing of Shaw's reputation for truth and veracity. Holeman
testified that it was bad. But, on the other hand, two witnesses for
the defendant testified that it was good. The witness Barnhisers
credit for veracity was impeached by one witness, the said Raybourn,
and sustained by the testimony of the defendant and one witness.
It was by the rejection of the testimony of Shaw and Barnhisel that
the local officers arrived at the conclusion that Irwin had proved his
case by a preponderance of the evideilce. But I can not think that
much credit should be given to the impeaching witnesses.
The decision of the Department of April 28, 1896, is, therefore,
revoked and Irwin's contest dismissed.
DECISIONS RELATING TO THE PUBLIC LANDS. 191
MINING CLAIM— NOTICE-PARAGRAim 80, MINING REGULATIONS.
GOWDY ET AL. t?. KlSMET GOLD MINING Co.
The notice of an application for a mineral patent should, in Htaiing the names of
adjacent claims, include nnsurveyed a.s well as surveyed claims.
Failure to include in the posted and published notice of a mineral application the
names of the ueare9t/Or adjacent claims, in strict accordance with paragraph
29, of mining regulations, will not render new notice necessary, where the notice
as given is substantially in conformity with the practice heretofore observed
under said paragraph.
Paragraph 29, of mining regulatitms, amended, and directions given for due pro-
mulgation thereof.
Secretary Francis to the Commissioner of the General Land Office^ Feb-
{I. n, L.) ruary 27^ 1897. (P. J. C.)
A petition for re-review of departmental decision of May 23, 1896
(22 L. D., 624), and for the exercise of the supervisory powers of the
Secretary of the Interior, has been filed in this Department by the Kis-
met Gold Mining Company. On examination thereof the same was
entertained, and under direction of the Department a copy thereof
served on W. H. Gowdy et aL The matter now comes up regularly for
consideration.
So far as material to the question now involved, it appears that dur-
ing the period of publication of notice of application for patent for
the Kismet Mining claim, survey No. 8868, Pueblo, Colorado, land dis-
trict-, the owners of the Chicago Girl Mining claim, which it is alleged
conflicts with the Kismet, did not file a protest and adverse as required
by section 2325 of the Revised Statutes against the Kismet. Subse-
quently, Gowdy et al, did file a protest, in which it was alleged that
the notice of application was not conspiciously posted on the Kismet,
and that the published notice did not contain the names of adjoining
claims.
When the matter reached the Department, three questions raised by
the appeal were decided. First: That Gowdy et alj having failed to
file their protest and adverse as provided by statute, the Department
could afibrd them no relief if there had been a substantial compliance
with the law in the matter of giving notice; that the question as to
whether proper notice had been given was one in which only the gov-
ernment and the applicant were interested. Second: That the notice
posted on the claim was conspicuously posted in contemplation of the
regulations, and, Third: That the notices posted and x)ublished did not
contain the names of adjoining claims, or state where the record of the
claim might be found. The order was, therefore, that the entry should
be suspended, and new publication be made in conformity with the
rules.
A motion for review of this decision was denied September 11, 189 J
(23 L. D., 319).
192 DECISIONS RELATING TO THE PUBLIC LANDS.
It is not deemeil necessary to give in full the errors assigned.
The Department has no intention of receding from the position taken
in this case originaUy as to the status of the protestants. in the case
presented at that time it was not charged or shown that they did not
have notice of the application for patent, and the ex parte affidavits
now presented, alleging that they did not have notice, come too late
for consideration, under the doctrine announced in Peacock r. Shearer's
Heirs, 20 L. D., 213, and Tennessee Coal, Iron and Railroad Company
et aZ., 23 id., 28.
It is not conceived how it can be seriously conteuded that the ruling
in the case at bar is in violation of the regulations. It is not under-
stood that counsel on either side, either in their briefs or in the oral
argument, insist on that position, but the complaint of the i>etitioner is
that the construction placed on the regulations by the Department is
contrary to the practice that has prevailed in your office, and that the
rigid enforcement thereof at this time is a serious hardship on the peti-
tioner, as well as the multitude of others who have followed the form of
notice published and posted in this case, and if adhered to will cause
doubt and uncertainty as to titles secured, as well as cause great
expense in re-advertising. And, it is insisted, that if an unbending
rule is to be announced and adhered to, those who have proceeded in
this manner, and have made a substantial compliance with the regula-
tions, should not be summarily required to republish and repost, and
thus give those who have been inattentive to their own interests an
opportunity to harass the applicants with adverse proceedings.
An informal inquiry at the mineral division in your office discloses
the fact that a large proportion of the notices of the character under
discussion are not strictly in conformity with the regulations, and some
of the features might on strict construction be subject to the same
criticism as the one at bar. It has been considered by your office that
these notices are a substantial comphance with the regulations.
In view of this, your office, on the promulgation of the decision in
this case, deemed it advisable to issue a circular to the local officers,
in which was quoted paragraphs 29, 34, and 35 of the mining circular,
and then following this :
By departmental decision of May 23, 1896, in the case of Gowdy v. Kisraet Gold
Mining Company, it was held that a strict compliance with said paragraph 35 wili
be insisted upon, and in that case republication was required by reason of the fact
that the published notice failed to contain a reference to the names of adjoining or
nearest claims.
In view of the fact that most published notices fail to comply in some particular
with the above-quoted regulations, your special att<entiou is called to said decision,
and you are enjoined to comply with said regulations in the preparation of notices
for publication.
After mature deliberation on this subject, I am convinced that there
is much force in the proposition that if the rule announced by the
Department in this case, if enforced, would effect a material change in
DECISIONS RELATING TO THE PUBLIC LANDS. 193
the practice theretofore prevailing in your office, which, by reason of its
loDg standing, may be regarded as having become a rale of property,
and that the summary enforcement of such rule as to pending applica-
tions, in which notice has been given under the former practice, is not
only calculated to cause much confusion, but great expense, both of
which should be avoided.
It is conceded on all hands that there should be a uniform practice,
and that the fullest and most accurate notice should be given, so that
the parties interested adversely may be able to fix the locus of the
claim, and thereby determine whether or not there is any conflict. The
langaage used in this case, and cited with approval in Parsons v. Ellis
(23 L. D., 504), as to the necessity of this notice, meets my views.
It is not improbable that some confusion may have arisen by reason
of the somewhat vague and indefinite wording of paragraph 20, and
tbe different constructions that might be placed thereon. It will be
observed that the language in regard to adjoining claims is:
The name or names of adjoining claimants on same or other lodes, or, if none adjoin,
the names of the nearest claims, ete.
Before commenting on this language, it may be well to state that all
official surveys of mining claims are made by a deputy mineral sur-
veyor, who is regularly appointed by the surveyor- general of the dis-
trict. He is, therefore, an officer of the laud department, and as such
IS strictly under the highest obligations to perform his duties in accord-
ance with instructions. Being such officer, his reports and acts must
be accepted as prima facie true. It is upon his report, made from
actual observation in the field, that the data are obtained from which
the register must prepare the publication notice. The surveyor, there-
fore, must act impartially in making his report. His connection with
the survey is only that of an officer of the Department, and any further
acts, especially in connection with securing a patent, are in direct vio-
lation of his duties and his instructions. I may add that this discus-
5>ion is suggested by reason of the fact that it is charged that the
deputy surveyor exceeded his duties in this matter by preparing "the
notices of application for patent.''
Kecurring now to the language quoted from paragraph 29, the diffi-
culty of rigidly enforcing this requirement in all its detail is clearly
apparent. To give the names of "adjoining claimants" would require
a search of the records to . ascertain who were the claimants of any
^uvh claim, which in itself entails a task that is burdensome and may
be expensive, especially where there have been numerous transfers of
fractional interests. And it is not clear how any better results so far
as notice is concerned would be obtained by strictly construing this.
It would seem as if simply giving the name of the claim would answer
every purpose. The claimants would then have all the notice that can
reasonably be required. It is a fact, as I am informed by your office,
10671— VOL 24 13
194 DECISIONS RELATING TO THE PUBLIC LANB8.
that this requirement is very rarely ftiMlled, and under the practice
that has obtained has practically fallen into disuse.
The practice has been simply to name adjoining claims, and in this
some confusion has arisen. The almost universal practice is that only
claims of which official surveys have been made are named. It is true
that these are the only claims of which the government, in any of its
departments, has any official knowledge, but the tBUSt may be, and not
infrequently is, that claims of the greatest notoriety in the mining dis-
trict may never have had an official survey, and may be near, or ^^tlie
nearest claim," to that applied for. It seems to me that it is the duty
of the deputy surveyor in all cases where it is practicable to do so, to
give the names of such claims. As said in this case originally, it is
l>rimarily the duty ot the applicant himself to give such informatiof] as
he is x>ossessed of in regard to adjoining, or conflicting daims, as he is
presumed to know more about these matters than a strange.
It is not improbable that my predecessor, iu deciding this case as he
did, and holding that a strict construction should be given to this para-
graph, especially in regard to adjoining claims, had in view the necessity
of naming all such claims and was not cognizant of the fact that the
practice had almost uniformly been to inclade in the notices only such
claims as had been officially surveyed.
It seems to me that paragra])h 29 should be amended so as to remove
any doubt of its meaning, and make as clear and adequate provision
for future guidance as is possible. It will be readily understood that
it is practically impossible to make any regulation that will cover all
possible cases that may be presented. The most tliat can be done is to
formulate such rule as will be best adapted to meet all contingencies
that may arise, and leave the question as to whether there has been a
compliance therewith to be determined as the emergency may be pre-
sented. The government has the mineral lands for sale to those who
are entitled to the same by reason of compliance with the law. The
Secretary of the Interior is clothed with power to make such rules and
regulations in regard to the disposal thereof as are not inconsistent
with law. The purpose of giving notice of the application for patent
for mining claims is to notify all who may have conflicting locations
that they may protect their interests as provide<l by law. With this
end in view, and to make more definite what the practice should be in
the future in such cases, I have had x}re]>ared the following as a substi-
tute for the present paragraph 29 :
29. The claimant is then required to post a copy of the plat of such sarrey in a
conspicuous place upon the claim, together with notice of his intentiou to apply for
a patent therefor, which notice will give the date of posting, the name of the olaim-
ant, the name of the claim; the mining district and county; whether or not the loca-
tion is of record, and, if so, where the record may be found, giving the book and
page thereof; the number of feet claimed along the vein and tlie presumed direction
thereof; the number of feet claimed on the lode in each direction from the point of
discovery, or other well-deflned place on the claim; the names of all adjoining and
oonflictiug claims, or, if none exist, the notice should so state.
DECISIONS KELATING TO THE PUBLIC LANDS. 195
Year office is directed to immediately send to the local officers a copy
of this rule, with ins tractions that the same will be in full force and
effect on and after the first day of June, 1897, and all publications made
thereafter must be in conformity with this. All publications made or
started prior to that date will be treated under the rule as it was inter-
preted prior to the original decision in this case.
I am constrained to believe that in the case at bar there was a sub-
stantial compliance by the applicants with the rules as then adminis-
tered and construed, and that the decision should be modified to this
extent. The order requiring republication and suspending the entry
during that period is hereby revoked.
It is so ordered.
HAILROAI> GRANT-IN1>KMNTTY SELECmON-C05rFLlCTING LIMITS.
Geitnewald et al. V. Northern Pacific E. R. Go. et al. and
Northern Pacific R. R. Oo. r. St. Paul, Minneapolis and
Manitoba Ry. Co.
An indemDity selection unaocompauied by a speciticatiou of loss is no bar to tbe
attachment of other rights.
An uncanceled pre-emption filing of record, at the date a railroad grant becomes
effect Ive, excepts the land covered thereby from the operation of the (rrant.
The establishment of indemnity limits on the definite location of the Northern
Pacific, and action taken thereon, did not amount to a finding on the part of
tbe Department that all the lands in said limits would be required to satisfy the
grant to said company.
At the time of the filing and acceptance of the map of definite location of tbe St.
Vincent extension of tbe Manitoba road, there was no reservation of lands for
the benefit of tbe Northern Pacific outside tbe withdrawal on general route,
and the primary limits adjusted to definite location, that would defeat the
grant to the Manitoba company.
Secretary Francis to the Commissioner of the General Land Office^ Feb-
(I. H. L.) rnary 27^ 1897, (F. W. 0.)
This case is somewhat complicated, due to tbe mauy claimants to tbe
tracts involved, Aagast Grunewald, Peder J. Skaar and tbe Northern
Pacific Railroad Company having each appealed from your office
decision of February 2, 1895, making disi)osition of tbe lands involved
as hereinafter stated.
The case seems to have arisen upon an application tendered by
Grunewald on December 6, 1887, to make homestead entry covering
the S. ^ of the N W. ^, the N W. J of tbe S W. J and lot 4, Sec. 3, T. 134
N., R. 43 W., St. Cloud land district, Minnesota.
This land is witbin tbei)rimary limits of tbe grant for tbe St. Vincent
Extension of the St. Paul, Minneapolis and Manitoba Railway, made
by act of March 3, 1871, the rights under wbicb attacbed upon tbe
acceptance of the map sbowing tbe line of definite location of tbe com-
pany's route on December 19, 1871. It is also within tbe tbirty mile
196 DECISIONS RELATING TO THE PUBLIC LANDS.
or first indemnity belt of the grant to the Northern Pacific Kailroad,
as adjusted to the map of definite location of said road filed November
7, 1871. It was not within the limits withdrawn upon the map showing
the line of general route of the said Northern Pacific Railroad.
The NW, J of the SW. J of said section 3 had, prior to the tender
of Grunewald's application, been applied for by Knudt Johnson, aud
Grunewald's application was rejected on account of the pending appli-
cation by Johnson; from which he duly appealed to your oflSce.
The case arising upon Johnson's application was duly prosecuted to
this Department, final decision being rendered in Johnson's favor April
10,1891.
Following this decision it appears that Grunewakl tendered a second
application, covering only the land in conflict with Johnson's entry.
namely, the said NW. J of the SW. J; but on July 13, 1891, he waived
any claim as to the said forty, electing to stand upon his application
presented in 1887 as to the said S. J of the NW. J an<l lot 4 of Sec. 3.
On April 5, 1893, one Peder J. Skaar tendered his homestead appli-
cation for the SW. J of the NW. J of said Sec. 3. He did not alle^^e
prior settlement, but the local officers, having misconstrued Gmnewald's
action and supposing that he had withdrawn all claim under his appli-
cation, instead of only eliminating the tract before referred to, held the
application by Skaar for allowance and notified both railroad oompa<
nies of such action; from which they duly appealed.
As to the claims made by the companies to the tracts involved, the
record discloses that on December 2, 1873, the St. Paul, Minneapolis
aud Manitoba Railway Company listed the SE. J of the NW. ^ and lot
4 of said section 3, and on July 31, 1884, listed the S W. J of the NW. J of
said section. The last mentioned tra(*.t was selected by the Northeru
Pacific Kailroad Company on ()ctober 29, 188.*^, without specification ol
bases, but the same was applied in the amendatory list filed April 26,
1892. The local oflBcers rejected the attempted selection by the North
ern Pacific Railroad Company for conflict with the prior selection by
the St. Paul, Minneapolis and Manitoba Railway Company ; from which
said company duly appealed.
The record further shows that the said SW. J of the NW. J, involved
in the claim made by both railroad companies and by both Skaar and
Grunewald, was embraced in the pre emption declaratory statement of
F. J. Grunewald filed June 19, 1871, alleging settlement on the 7th of
that month. This filing was never completed but was still of record,
uncanceled, both at the date of the attachment of rights under the
Manitoba grant and at the date of withdrawal aud selection on account
of the Northern Pacific grant.
The conflicting claims of all parties were considered in your oflice
decision of February 2, 1895, before referred to, wherein the homestead
applications of both Grunewald and Skaar were rejected as to the said
SW*. J of the NW. J ; the same being held to have been excepted from
DECISIONS RELATING TO THE PUBLIC LANDS. 197
the grant for the Manitoba company, and was awarded to the Northern
Pacific llailroad Company under its selection, before referred to, of
October 29, 1883. As before stated, this selection was not accom-
panied by a designation of losses as a basis therefor, and not being
protected by the order of May 28, 1883, the same was no bar to the
attachment of other rights. (J^orthern Pacific E. R. Co. t\ Miller, 12
L. D., 428.)
The action of your office in awarding said tract to the said Northern
Pacific Railroad Company is therefore reversed. This tract was, how-
ever, excepted from the grant to the St. Vincent Plxtension by the filing
before referred to, and to that extent the holding of your office decision
as against the grant for the Manitoba Company is affirmed.
Between Grunewald and Skaar, Grunewald was the prior claimant
under his application presented December 6, 1887, which I find he has
not waived, and said tract is awarded to him, the conflicting applica-
tion of Skaar being rejected.
The tract remaining for consideration is the SE. J of the NW. J and
lot 4 of said section 3.
As before stated, this tract is within the primary limits of the grant
for the Manitoba Railway Company, the rights under which attached
December 19, 1871, and is also within the indemnity limits of the grant
for the ^^"orthern Pacific Railroad Company, on acciount of which appli-
<atiou was made to select this land April 27, 1892: the same being
rejected because of conflict with the Manitoba grant.
Your office decision sustains the rejection of the attempted selection
by the Northern Pacific Railroad Company upon the ground that the
lands were withdrawn, on account of the Manitoba grant, at the time
of the presentation of the list of selections by the Northern Pacific
Railroad Company.
It is urged by the company that the rights of these parties within
this conflict are determined by the decision of the United States Su-
preme Court in the case between said companies reported in 139 U. S.,
page 1. It is admitted that the Department has ruled otherwise.in its
decision of December 4, 1895, between said companies, reported in 21
L. D., 462, but it is urged that this holding is clearly in conflict with
the decision of the court.
Just what was intended to be held by the court in the case referred
to is a matter of some doubt.
The lands involved in said case were all within the limits of the with-
drawal upon the map of general route of the Northern Pacific Railroad
Company, which withdrawal became effective before the attachment of
rights under the Manitoba grant.
As stated by the court (page 17) —
The withdrawal made by the Secretary of the Interior of lands within the forty-
mile limit, on the 13th of Angnst, 1870, preHerved the lands for the benefit of the
Northern Pacific Bailroad from the operation of any subsequent grants to other
companies not specifically declared to cover the premises.
198 DECISIONS BELATIN6 TO THE PUBLIC LANDS.
This would seem to effectually dispose of the claim of the Manitoba
Hallway Gompauy as to such lands.
It is true that it was also stated in said opinion —
The act of March 3, 1865, as already stated, is expressly restrained from in any
way interfering with any lands previously reserved by Congress or an^^ competent
authority to aid in any work of public improvement. Consequently, under that act
no claim could be asserted that would in any way interfere with the grants to the
Northern Pacific Railroad Company.
But I do not believe it was the intention of the court to enlarge
upon the case in hand, nor do I think that it should be construed to
include, as involved in this case, lands outside of the withdrawal on the
general route of the Northern Pacific Railroad Company, and which
were shown, upon the acceptance of the map of definite location of the
Manitoba grant, to be within the ])rimary limits of said grant, and so
far as the records showed, free from adverse claims.
This was on December 19, 1871, and prior to this time, to wit, on
November 20, 1871, the map of definite location of the Northern Pacific
Eailroad Company opposite this land had been filed.
Upon the lands reserved on December 19, 1871, the Manitoba grant
could not operate, but these were only such as had been withdrawn
upon the line of general route of the Northern Pacific Railroad Com-
pany and such as fell within the primary limits adjusted to its line of
definite location.
As to the lands within the indemnity limits of the grant for the
Northern Pacific Eailroad, outside of the withdrawal on general route,
what were the rights of the Northern Pacific Eailroad Company f
Since the decision of this Department in the case of Northern Pacific
Eailroad Company v. Miller (7 L. D., 100), it has been uniformly ruled
that the sixth section of the act of July 2, 1864 (13 Stat., 365), prohib-
ited the withdrawal of indemnity lands on account of the Northern
Pacific grant, so that there was no reservation thereof on account of
the grant.
In the case in 139 U. S., 1, it is stated, on pages 8 and 9:
After a map of general route of the road of the plaintiff was tiled, as abo^e stated,
and the line of the road in Minnesota was definitely fixed, the commissioner of the
general land office designated, upon maps and records in his office, the limits of
the lands granted by Congress to the plaintiff, according to the provisions of the act
of 1864, and the above joint resolution, namely, the twenty, thirty and forty-milo
limits on each side of the line of definite location, the first named being the limits of
the lands in place; the second, the limits of the indemnity lands; and the third, or
forty-mile limit, the limits of the further indemnity granted by the joint resolutiou
of May 31, 1870. And upon such designation it was found that there was not in the
8tate, within those limits, at the time of the final location of the road, an amount of
lands intended by the grant of Congress for the plaintiff, not previously granted,
sold, occupied by homestead settlers, pre-empted or otherwise disposed of.
Again on page 19 —
As to the objection that no eviilence was produced of any selection by the Secre-
tary of the Interior from the indemnity lands to make np for the deficiencies found
DECISIONS RELATING TO THE PUBLIC LANDS. 199
in the landB within the place limita, it is sufficient to observe that all lands within
the indemnity limits only made up in part for these deticiencifs. There was, there-
fore, no occasion for the exercise of the judgment of the Secretary in selection from
them, for they were all appropriated.
This is urged as being, in efieot, a reservation of all lands witbin
the indemnity limits of the Northern Pacific grant in Minnesota, as
against the grant under the act of 1871 for the Manitoba Company.
The language used by the court was i>erbap8 influenced by the admis-
sions of the companies, said case having been tried upon an agreed
statement of facts.
The records of this Department show that upon the filing of the
map of definite location of the Northern Pacific Railroad Company on
November 20, 1871, the limits of the grant were established, the map
being forwarded to the local office by letter from your office dated
December 12, 1871, which letter was received December 21, 1871.
While this diagram showed the forty mile or second indemnity belt,
yet the letter forwarding it to the local office does not show that, as
stated by the court,
Upon such designation it was found that there was not in the State, within those
limits, at the time of the final location of the road, the amount of lands intended
b>' the li^ant of Congress for the plaintiif, not previously granted, sold, occupied by
homestead settlers, pre-empted or otherwise disposed of.
The letter states as follows :
You will observe by reference to the act of 31 May 1870, that the additioTial
indemnity lands therein granted are only for making up deficiency caused within
their granted or 20 mile limits, by the disposal of lands in odd sections since the pas-
sage of the act of 2nd July 1864. and upon the contingency that such deficiency
lands cannot be obtained within the 10 mile indemnity limits prescribed by the act
of 2Dd July 1864. Nor can the company make selection of any lands heretofore
reserved for the Lake Superior or Mississippi railroad or reserved or granted for any
other purpose and which were still reserved at the date of definite location of the
road and map thereof filed in this office.
Therefore in the examination of any lists of lands selected by the company 3^ou
will require that those in the 20 mile or granted limits and those in the 30 mile or
tirst indemnity limits shall be presented in separate lists and you will eliminate
or reject therefrom any lands to which the United States had not full title or which
were ** reserved, sold, granted, or otherwise appropriated, and^' not "free from pre-
emption or other claims or rights at the time the line of saifl road" was '* definitely
tixed, and a plat thereof filed in the office of the Commissioner of the General Land
Office" which was 2l8t November 1871.
It will be seen that said letter clearly coutemplated the exhaustion
of the first indeniuity belt before the second was to be resorted to, but
makes no finding on that contingency, the action amounting only to
the establishment of the limits within which selections might be made
if necessary, which were ordered withdrawn, as was the practice then
prevailing.
As to the lands involved in the case before the court, the decision
therein made is of course binding, but in the administration of these
grants the facts gathered from the records and files of the Department
200 DECISIONS RELATING TO THE PUBLIC LANDS.
are our guide, and in making disposition of the public grants we most
be governed accordingly.
I am therefore of opinion that no such reservation was created on
account of the Northern Pacific Railroad grant outside the limits of
the withdrawal upon general route at the time of the filing and accept-
ance of the map of definite location of the St. Vincent Extension of
the Manitoba Railroad, as would prevent the grant to the last meu-
tioned company from taking effect.
Your office decision, in so far as it awards the tracts under consid-
eration to the Manitoba Railway Company, is accordingly affirmed.
patent-ixai>\ti:rtent issi^e— vacation.
OooK V, Taylor.
Snit for the recovery of title will be advised where a patent, through inadvertence
and mistake, is issued in contravention of departmental directions.
Secretary Francis to the Commissioner of the General Land Office^ Feb-
(I. H. L.) mary 27, 1897. (J. L. McC.)
Counsel for John F. Cook has filed a motion for review of depart-
mental decision of January 19, 1895, affirming the decision of your
office, dat^d April 6, 1893, dismissing his protest against the delivery
to William A. Taylor of patent for the N W. i of the NE. \ of Sec. 32, T.
6 S., R. 8 W., Las Graces laud district, New Mexico. (See 300 L. and
R., 439.)
The record facts of the case are in brief as follows:
Taylor made pre-emption filing for the tract on February 16, 1884.
On August 12, 188G, Oook filed an affidavit, alleging that the laud
was mineral in character, and that he (the affiant) was owner of a
mining claim thereon.
Taylor made final proof August 26, 1886; and on September 27, same
year, was allowed to make entry of the tract in controversy.
A hearing on the affidavit was had October 30, 1886.
The matter came in due course of appeal before the Department,
which, on December 24, 1891, held that the land was agricultural in
character, but that the testimony failed to show that the entryman had
complied with the law as to residence, improvements, and cultivation.
Your office, by letter of February 22, 1892, i)romulgated said decision,
and stated further that Taylor would be allowed sixty days from notice
*' within which to submit supi)lemental proof showing full compliance
with the pre-emption law as to residence, improvements, and cultivation,
if such is the fact; otherwise his entry will be held for cancellation."
No supplemental proof was ever submitted, and no motion for review
was filed. The case was declared closed by your office letter of April
8, 1892.
DECISIONS RELATING TO THE PUBLIC LANDS. 201
The entry papers were filed in division ^'G" (the pre-emption divi-
sion) of your office, with the endorsement, ''Land adjudged agricultural
and contest closed. Sent to R. & R. April 8, 1892." The final proof
(made August 26, 1886, nupra,) showed compliance with the pre-emption
law. The testimony adduced at the hearing (had on October 30, 1886,
supra,) was not with the entry papers. No note on the papers referred
to the call made by division "N" (the mineral division) of your office,
for supplemental proof. In other words, division "G" was wholly
unaware of the action that had been taken by your office, the record of
which was in division *'N." Therefore, upon report by division **G"
that decision had been rendered and the case closed, patent was issued
to Taylor on May 4, 1892.
Counsel for Cook, learning of the issuance of patent, filed a jjrotest
against its delivery; but your office, by letter of April 6, 1893, held:
It is not necessary to question whether the patent in this case was issued inadvert-
eDtly or not. It has been issued, signed, sealed, and recorded in this office; and this
office has no further right to pass Upon the validity of Taylor's entry.
From the above decision of your office (3ook appealed to the Depart-
ment, asking that said decision be reversed, or as an alternative, that
suit be instituted, for his benefit, to set aside the patent. The Depart-
ment, on January 19, 1895, held that said decision was correct, and
added:
The Department has no legal authority to determine the qnestion of a duly executed
patent. It has, then, no right to consider whether the patentee ought to have or
receive the patent. (United States v. Schurz^ 102 U. S., 378.) The government is
QDder no obligation to the petitioner respecting the relief iuvoked, and I am not
satisfied that suit should be brought by the government to vacate the patent.
In the motion for review of the above named departmental decision,
coaDsel for Cook earnestly contend that gross fraud and wrong were
committed by the entryman, or by parties whom he allowed to make
use of his name. This, however, is a matter which need not be dis-
cussed. It certainly has been shown that inadvertence and mistake
were committed in issuing the patent.
In the case of Williams v. United States (138 U. S., 514, 517), the
supreme court said :
The allegations of the bill are of fraud and wrong; but they also Khow inadvert-
ence and mistake in the certification to the State; and it can not be doubted that
iuadvertence and mistake are, equally with fraud and wrong, grounds for judicial
iuterference to divest title acquired thereby. This is equally true in transactions
between individuals and in those between the government and its patentee. . . .
The facts and proceedings attending the transfer of title are fully disclosed in the bill.
They point to fraud and wrong, and equally to inadvertence and mistake; and if the
latter be shown the bill is sustainable, although the former charge against the defend-
ant may not have been fully established.
The above decision of the supreme court appears to me to be clearly
apphcable to the case at bar.
202 DECISIONS RELATING TO THE PUBLIC LANDS.
Cook's petitiou asks, in substance, that the governmeut institute snit
for his benefit. But, in my opinion, he makes no showing that wonld
justify the bringing of suit for his benefit; as the Department hdd in
its decision of January 19, 1895, ^^the government is under no obUga-
tion to the petitioner respecting the relief invoked/' Therefore the
motion lor review must be denied.
In view, however, of the inadvertence and mistake committe<l by
your office in issuing the patent in question in contravention of the
departmental decision directing that Taylor's claim should not be
allowed until he had furnished proof of compliance with the pre-emp-
tion law, you are hereby directed to prepare the record in the case for
submission to the Department of Justice with a view to institution of
suit to set aside said patent.
PRACnc:E— WAGON ROAI> GRANT-SETTLEMEXT CLAIM.
Watson v. The Dalles Military Wagon Road Co.
The advancement of cases on the docket in the General Land Office, is a matterrest-
ing in the discretion of the Commissioner, nnd wiU not be interfered with by
the Department unless an abuse of discretion appears.
Mere occupation or use of a body of unsurveyed public land of indeiiuite area, with-
out intent to acquire title to the particular portion thereof in controvensy, is
not such an appropriation of that portion as to except it, or the sub-division of
which it is a part, from the operation of a wagon road grant.
Secretary Francis to the Commissioner of the General Land Office^ Feb-
(L H. L.) ruary 27, 1897. (E. B., Jr.)
1 have considered the appeal of Samuel J. Watson from your office
decision of August 31, 1896, in the case of said Watson against The
Dalles Military Wagon Road Company, involving the NE. J of section
25, T. 20 S., K. 46 E., Burns, Oregon, land district.
Watson claims the laud under his homestead entry Xo. r>ll, therefor,
made January 15, 1894; ^aid company claims it under the grant of
February 25, 1867 (14 Stat., 409), to the State of Oregon, to aid in the
construction of the said wagon road. This case was previously before
the Department on appeal by Watson, and a hearing was then ordered
March 6, 1896, to determine whether there liad been such appropriation
of the land uixder the settlement laws as to except it from the operar
tion of the grant. The hearing was held in May, 1896, and the case
now again reaches the Department in regular course of proceeding.
The land is within the primary limits of the said grant, and unless
duly reserved or otherwise lawfully appropriated, the right of the com-
l)any attached thereto upon the definite location of the line of the road
November 1, 1869 (McDowell r. The Dalles Military Wagon Road Co., 22
L. D., 599). Your office held, in effect, that the land wjis not so reserved
or appropriated, that the right of the company attached thereto on
the date last mentioned and that Watson's entry should be canceled.
DECI8I0NB BELATING TO THE PUBLIC LAi^DS. 203
The oonttmtHms of Watioii on i^^^eal may be reioeed to two, viz : first,
that your oflhse erred in deciding the case ^^ within twelve days after the
arrival of the record, in violation of Rule 73 of the Rules of Practice;"
and second, in not holding that the land was so appropriated by settle-
ment thereon of one Eli Keeny, as to except it from the operatiou of
the grant.
It appears that the record reached your office August 19, 189G, and
that the case was therefore decided by your office on the twelfth day
after the arrival of the record. The Rule of Practice referred to is as
follows :
After the CommiMiouer shall have received a record of te8tinioD^' iu a contested
case, thirty days 'will be allowed to expire before any action thereon is taken, unless,
in the judgment of the Commissioner, public policy or private necessity shall
demand summary action, in which case he will proceed at his discretion, first noti-
fying the attorneys of record of his proposed action.
The advancement of cases in your office is discretionary with the
Commissioner and will not be interfered with by the Secretary unless
the discretion is shown to have been abused ; and the proceeding for
the correction of any alleged abuse of discretion is by certiorari and
not by appeal (Ex parte Frank Quinn, 9 L. D., 530, and Taylor v, Rogers,
12 L. D., G94). Appellant's first contention is not therefore well taken.
The testiniony shows that about the fall of 1805 or spring of 18C6
two men, named respectively Bruce and McFarland, enclosed a tract
of land of from eighty to two hundred and twenty-five acres, according
to various estimates, on the west bank of the Owyhee river, some dis-
tance below its junction with Snake river in said State, and occupied
and used the same chiefly as a hay ranch. A brush fence on three
sides and tbe river on the fourth formed the enclosure. Said township
was then unsurveyed. It was not surveyed until August, 1875. The
precise position of this enclosure with reference to the subdivisions of the
subsequent public survey does not clearly appear. According to a
diagram ofifered in evidence, based upon the testimony of one of appel-
lant's witnesses, the ranch embraced nearly all of the S W. J of said sec-
tion, part of the NW. 4» about thirty-five acres in the S. J of the NE. ^
and about forty acres in the NW. ;J of section 36. Said Keeny suc-
ceeded Bruce and McP'arland in the occupancy of the ranch about July,
1867, and continued there until about 1872. According to appellant's
witnesses, some hay was cut by Keeny on one or two occasions along
the north side of said enclosure, upon ground now claimed to have
been within the same and i)art of said NE. J. No other use thereof by
Keeny or his predecessors is alleged or shown.
From the official plat and field notes of the public survey it appears
tbat the Owyhee River enters said section 25 a few rods east of the
southwest corner thereof and flows northeastward through it, passing
out of the section about the same distance south of the northeast cor-
ner, and that its position in said section is considerably northwest of
the position shown on said diagram. This correction of the position
204 DECISIONS RELATING TO THE PUBLIC LANDS.
of thenver in said section, taken in connection with the testimony gen-
erall}', would leave only very few acres in the SE. J of the said NE. J,
if any, within the boundaries of the ranch, even upon the basis of the
enlarged acreage shown in the said diagram, which basis, however, as
already indicated, is not correct. The buildings used as dwellings by
these ranchmen were on the extreme western portion of the ranch and
only a few yards within the brush fence. It is not clear, therefore,
from all the evidence, that any jmrtion of said 2sE. ^ was embraced in
the said ranch as occupied by the parties named, or any of them.
Subsequent to the occupation of Keeny it would appear that the ranch
was considerably enlarged, embracing from six hundred to eight hun-
dred acres, which fact is immaterial excei)t to account to some extent
for the uncertainty in the minds of the witnesses as to its boundaries
at and prior to November 1, 1809, when the company's rights under its
grant attached.
It is not shown that any of the parties ever claimed or intended to
claim said ranch or any part thereof under the pre omption or home-
stead laws or to take it for the purpose of making thereon a home for
themselves. It is not shown that Bruce or McFarland had any of the
qualifications of a pre-emptor or homesteader, nor that Keeny was com-
petent to exercise either a i)re-emption or a homestead right at any time
during his occupancy of said ranch. He was apparently a citizen of
the United States and the head of a family, bnt none of the witnesses
knew whether he had or had not exercised homestead and ])re-emption
rights. He could exercise such rights but once. It is familiar doctrine
that in the absence of affirmative showing that an alleged settler on the
public lands had the necessary qualifications of a settler, his occupancy
thereof would not except the same from the operation of any such gi-ant
as is herein relied upon.
Even if it should be conceded, however, that Keeny had all the
qualifications of a settler, the fact that appellant has not shown, as
already indicated, that Keeny occupied any portion of the land in con-
troversy under any claim of homestead or pre emption settlement, would
be fatal to his second contention. Mere occupation or use of a body
of unsurveyed public land of indefinite area, without intent to acquire
title to the particular portion thereof in controversy, directly proven
or to be reasonably presumed from acts done in the premises, is not
such an appropriation of that portion as to except it, and much less
the larger legal subdivision of which it is a part and which Watson
claims, from the operation of such a grant. The testimony most favora-
ble to appellant, that of his witness Harris, does not tend to show that
said ranch covered more than thirty-five or forty acres, at the utmost,
of the land in controversy, and that testimony — from which the dia-
gram above referred to was made — is shown to be largely guesswork
and unreliable as to the .v ' and precise location of the ranch.
The decision of your office is affirnietl in accordance with the fore-
going views. Watson's entry will be canceled.
DECISIONS RELATING TO THE PUBLIC LANDS. 205
PRrV^ATE CLAIM-ACT OF MAY 2CI, IHiW,
Francisco Ferreira.
Private claims decided and recommended for confirmation by the commissioners,
and referred to Congress by tbe Secretary of the Treasury January 14, 1830, are
co:3 firmed by section 1, act of May 26, 1830.
Secretm^ Francvs to the Commissioner of the General Land OffieCj Feb-
(1. H. L.) ruary 27, 1897. (P. J. C.)
The Department is in receipt of your office letter (''G") of January 5,
1897, in reference to the private claim of Francisco Ferreira to certain
islands — or keys — in the southern part of Florida.
The attention of your office recently has been brought to this matter,
as stated in your said office letter, by one Horatio Crain, who claims
** present ownership of a portion of the land embraced in the claim^
and desires a patent.^
This matter has been the subject of consideration by your office, from
time to time, for more than three-quarters of a century and is still
unsettled. The purpose of your office letter is to have the matter
finally settled so that those claiming the lands may secure title thereto.
The facts disclosed are as follows :
The petition of Francisco Ferreira to the governor of Florida is as
follows :
[TraDslatioD.] -
To fcit excellency the Gorenior:
Don Francisco Kerrey ra, of this city, to your exceUency respectfuny shiweth:
That be is desirous of dedicating himself to the cultivation of the land, and, with
some slaves he owns, establish himself on some place that may be advantageous,
whenever he can collect funds for the purpose of obtaining hands: and as the serv-
ices he has rendered, and is still rendering, to the country with his person and
property, and the groat losses he has suffered during the revolution of this province,
are well known to j'our excellency, he therefore prays that you will be pleased to
^ant him in absolute property a key situated among those called the Florida Keys,
and is known bj' the name of Key Bacas, and four small islands which are situated
m the vicinity thereof, that he may, when ho collects sufficient funds, proceed to
form his establishment thereon; which may, at the same time, be very useful for
those who have the misfortune of being shipwrecked near said' place— a favor he
hopes to obtain from the goodness of your excellency.
Saiut Augustine, January 4, 1814.
Fran'('0 Ferrkira.
On the following day, January 5, Kindelan ordered : " Let there be
grauted to him in absolute property the Key Bacas and the small
island adjacent, without injury to a third person.'' (Ex. Doc. No. 58,
44th Cong., 1st Session, House of Representatives.)
Congress, on May 8, 1822, passed an act (3 Stat., 709), " for ascer-
taiuing claims and titles to land within the Territory of Florida," which
provided for tbe appointment of three commissioners by the President,
before whom every person, or their heirs, etc., ^'claiming title to lands
206 DECISIONS RELATING TO THE PUBLIC LANI>8.
nnder any patent, grant, concession,'' etc., '^ dated previous to Jannary
14, 1818," sha]! file his claim, '< setting forth, particnlarly, its situation
and boundaries, if to be ascertained;" that the commissioners shall
examine and determine on the validity of said patents, etc., but ail
claims must be presented prior to May «31, 1823. Section 5 defines the
powers of the commissioners, and, among others, is this:
They shall Dot have power to confirm any claim or part thereof where the
amount claimed is undefined in quantity, or shall exceed a thousand acres; but in
all such cases shall report the testimony, with their opinions, to the Secretary of the
Treasury to be laid before Congress for their determination.
By act of March 3, 1823 (3 Stat., 754), Congress amended the act
above quoted, by providing that the commissioners therein provided
for should confine their labors exclusively to West Florida, and a new
eommission of three was provided for East Florida, and within that
district, shall ** possess all the jwwers given by, perform all duties
required, and shall, in all respects, be subject to, the provisions and
restrictions of the act of the eighth of May," supra^ ^^ except so far as
the same is altered or changed by the provisions of this act." Section
2 of this act provides, that claims in favor of actual settlers at the
time of cession are to be confirmed, where the claim does not exceed
three thousand five hundred acres;
and said commissioners shall have power, any law to the contrary notwithatandlDj^.
of deciding on the validity of all claims derived. from the Spanish g«»vernmeDt iu
favor of actual settlers, where the quantity does not exceed three thousand live
hundred acres.
Section 5 provided that claims not filed on or before December 1, 1823,
shall be held to be void and of no eii'ect.
By act of February 28, 1824 (4 Stat, 6), the time was again extended
till January 1, 1825, and so much of the former act as made void those
claims not filed before December 1, 1823, was rex)ealed. Section 3 of
this act declares that no person shall be deemed an actual settler
within the provisions of the prior act,
unless such persons, or those nnder whom he claims title, sfaall have been in the
cultivation, or occupation, of the land, at and before the period of the cession.
It may be remarked, at this stage of the recital of facts, that it is
fairly deducible from the petition of Ferreira that he was not at the
date of the grant or cession an actual settler on the land as defined
by the statute just quoted. Hence,. his claim would not come within
the provision of the statute authorizing the commissioners to confirm
the claims of actual settlers where they did not exceed three thousand
five hundred acres, but would be controlled by the provisions of the
first act, which limited their confirmations to one thousand acres, pro-
vided, of course, his claim exceeded the latter amount.
In Volume 3, American State Papers — Duff" Green — commencing on
page 658, is found the <^ Minutes ot the Board of Florida Land Com-
DECISIONS RELATING TO THE PUBLIC LANDS. 207
missioners." It is recited that they assemble for action, under the acts
of May 8f 1S22, and March 3, 1823, for '^ ascertaining claims and titles
to lands within the district of East Florida.^' In these minutes, under
date of November 17, 1823, is found this:
Francis Ferreira presented his meinoriul to this board, praying confirmation of
title to an island known by the name of Bai^attj and four small islands adjoining,
fiitnated to thesonth of Cape Florida, and known as one of the Florida Keys, with a
conoessiou to memoralist made by Governor Kindelnn, and dated the 5th of .Fauiiary,
1^14 ; which are ordered to be filed.
This, SO far as my research can be extended, is the first presentation of
this claim.
Pursuing this subject in its chronological order, it is found that Con-
gress from time to time extended the period within which claims should
be presented to the boards. By the act of February 8, 1821" (4 Stat.,
202), it was provided that all records, etc., in the possession of the
"secretary of the late board'* be delivered to the register and receiver
of the district of East Florida, and it was made their duty
to examine and decide all claims nud titles to land in East Florida, not heretofore
decided by the late board of commissioners, subject to the limitations, and in
coDformity with the provisions of the several acts of Congress providing for the
adjustment of private land claims in Florida.
In pursuance of this law the local officers, in January, 1829, submitted
their final report to the Secretary of the Treasury, which was trans-
mitted by him to the President of the Senate, January 14, 1830 (Vol. 5
Am'n St. P'rs, etc, 327). On page 420 of the same volume, and being a
part of the said report, will be found " abstract No. 15 of sixteen cases
sent back from Washington to the register and receiver for their
report." No. 13 is that of Francis Ferreira; "date of concession Junu-
ary 6, 1814;" acres blank; conceded by Kindelan, "Royal order, etc.,
1790," and described as Key Bacas. In referring to this claim, they
say, in a note :
No. 13 — Francis Ferreira, clm't. — Key Bacas. The grant to this land was made
by Governor Kindelan, in January, 1814, for services. The testimony is filed in the
Land Office at Washington. It was recommended for confirmation on the 19th June,
1824.
•
I do not find any record in the American State Papers warranting
tbe statement here made that this grant "was recommended for con-
firmation on the 19th June, 1824." This is the date of the confirmation
of the Key Vacas, an entirely different grant, although to a person by
the 84ime name. Key Vacas is described as containing "14 acres with-
out the old lines, and about one and three-fourths miles north of the
City of St. Augustine," while Key Bacas is located in the Florida Keys
at the extreme south of the State. It may be possible that the local
officers in this report have confused the two grants.
It appears that m 1874 one E. C. Howe, claiming to be one of the
heirs of Charles Howe, who held the proj^erty by mesne conveyances
208 DECISIONS RELATING TO THE PUBLIC LANDS.
irom the original claimant, made inquiry of your office as to the status
of the claim, and he was informed, by Mr. Commissioner Burdett,
tbnt it had always been held by this (your) office that the sixteen claims that had
been omitted from the Commissioner's report, which was submitted to Congreos
February 21, 1825, had never been confirmed.
Howe then applied to have the claim confirmed under act of June
22," 1860 (12 Stat., 85), as extended and amended by acts of March 2,
1867 (14 Stat., 544), and June 10, 1872 (17 Stat., 378).
Action was evidently taken under these acta, for it appears by Ex.
Doc. No. 58, supra, that Mr. Secretary Chandler, on January 6, 1876,
transmitted ** a report on the private claim of Charles Howe's lejral
representatives" to the Speaker of the House of Representatives, ia
the following language:
Pursuant to the requirement of the fourth section of the act approved Jnne 22.
1860, (12 Stat., 85,) I have the honor to transmit herewith the report of the register
and receiver of the laud-office at Gainesville, Fla., acting us commissioners under
said act, on the private land-claim of the legal representatives of Charles Howe,
deceased, together with letter of the Commissioner of the General Land-Office, of
the 28th ultimo, a]iproving Raid report.
So far as disclosed, nothing was ever done by Congress on this,
except to print the report.
Thus the matter seems to have rested, until December 8, 1896, when
Horatio Cram addressed your office relative to the same. In your said
office letter to the Department as a result of this letter from Crain, it is
said : ,
I do not agree with the views held hy Commissioner Burdett, that it was doubtful
as to whether Feri'eira s claim has l>een conHrmed by the act of May 28, (26, ) 1830. * - *
I am of the opinion that the claim of Francisco Ferreira, having been recommended
foi confirmation, was duly confirmed by the first section of the act of May 26, 1830
(4 Stat., 405), and that no further action is necessary on the part of Congress.
The first section of the act of May 26, 1830, reads as follows:
That all the claims and titles to land filed before the register and receiver of the
land office, acting as commissioners, in the district of East Florida, under the quan-
tity contained in one league square, which have been decided and recommended for
coufirinatton, contained in the reports, abstracts and opinions, of said register and
receiver, transmitted to the Secretary of the Treasury, according to law, and
referred by him to Congress, on the fourteenth day of January, one' thousand eight
hundred and thirty, be, and the same are hereby confirmed, etc.
It is clear that this act refers to such claims as were filed before the
register and receiver,
which have been decided and recommended for confirmation, contained in the
reports, abstracts and opinions of said register and receiver,
and referred to Congress by the Secretary of the Treasury Jannary
14, 1830. This claim was referred to Congress by the Secretary of the
Treasury on said date, as appears by abstract No. 15, and it was stated
by the local officers that '*it was recommended for confirmation on the
DECISIONS RELATING TO THE PUBLIC LANDS. 209
19th Jane, 1824.'' The local oflBcers evidently reported the fact only of
the recommendation by the former board, and do not make any recom-
mendation themselves. While I am anable to find in the minutes of the
board, contained in American State Papers, etc., any official record of
its recommendation for confirmation, yet there is in the Ex. Document
No. 58, this :
B, — Decree.
Fraacis^Farreira ) (^jjj.jjj ^ ^ jgj^^j^ ^jjjj^ jj^^y jg^^^ ^^^ ^^^^ ^^^^^ islands
The United States. S »^J^^*"*-
In this caae the claimaDt produced a concession made to him by Governor Kindelan
for the island set out in this memorial, dated January 5, 1814, the quantity undefined.
The board not beinp; authorized to decide finally on claims of this nature, but
eoiiceiying that the claimant has made out an equitable title for the lands which he
claims, it is therefore recommended to Congrean for confirmation.
June 19.
I, Antonio Alvarez, keeper of the public archives of East Florida, do hereby cer-
tify the following to be a true and correct extract from the registry of claims kept
by the board of land-commissioners, (book A, page 250,) now on file in my office,
according to law.
Witnesa my band and seal of office, at the city of Saint Augustine, Territory of
Florida, the twenty-fourth day of March, A. D. one thousand eight hundred and
thirty-six.
Antonio Alvarez, K. P, A,
If the copy of this judgment is to be accepted as authentic, and I
see no reason why it may not, then the statement of the local officers
would seem to be verified.
The area contained in the grant is <' under the quantity contained in
one league square,'' as determined in Teresa Rodriguez (18 L. D., 64),
being, as reported by the local officers and Commissioner Burdett,
4444.15 acres.
1 therefore concur in the conclusion of your office, as announced in'
md letter of January 5, 1897, and suggest that appropriate action be
taken by your office to issue patents to the proper party or parties.
JUDOMKNT OF CANCBIil^TlON— APPMCATION TO ENTEB.
GUILLOBY t\ BULLER.
rnder a decision holding an entry for cancellation, if within a specified period the
entryman fails to comply Avith certain requirements, or appeal, the judgment
becomes ftnal at the expiration of said period, If the requirements of said deci-
sion are not complied with, and no appeal is taken, and the land involved is
thereafter open to entry by the first lej^al applicant; but during the time so
accorded to the entryman an application to enter said land should not be received.
Secretary Francis to the Commissioner of the General Land Office, Feb-
(I. H. L.) rvary 37, 1897. (G. J. G.)
This controversy is in relation to the S. ^ of the SE. ^, Sec. 6, T. 4
S., B. 2 E., New Orleans land district, Louisiana.
10671— VOL 24 14
210 DECISIONS RELATING TO THE PUBLIC LANDS.
The record sUows that Arcius Yidrine made adjoining farm home-
stead entry for this land on December 14, 1S81, claiming as bis original
farm the S. i of SW. ^, same section, township and range. It seems
that Vidrine had lived on his original farm since 1876. He continued
to reside thereon until November 1, 1884, when, as he claims, finding:
opi>ortunity to sell at a good price, he sold his original farm and moved
away. He remained away until March 10, 1890, when he returned and
established residence on the adjoining farm.
On April 25, 1892, he submitted final proof in support of his adjoin-
ing farm entry. He claims to have believed that he would receive
credit for the time he lived on his original farm after making his
adjoining farm entry. Vidrine's said final proof was rejected by the
local office, and he appealed to your office. In your office letter of
July 27, 1893, you decided as follows :
In a^oining farm homestead eDtries the party must fulfil the requiremente of the
homestead law as to residence and cultivation, but will not be required to remove
from the land which he originally owned in order to reside upon and cultivate tbat
which he thus acquires under the homestead law, since the whole 160 acres are con-
sidered as containing one farm or body of land, residence upon and cultivation of a
portion of which is equivalent to residence ui>on and cultivation of the whole. Mr.
Vidrine having disi>08ed of his original farm, his adjoining farm homestead entry
must fall as it has no basis on which to stand. Mr. Vidrine could not be alloweil
credit for residence on his original farm for the three years (nearly) from December
14, 1881, to November 1, 1884, and add the same to the two years residence upon and
cultivation of the land from March 10, 1890, to April 25, 1892.
By your said office decision of July 27, 1893, Vidrine was allowed to
make application to have the character of his entry changed to that of
one for settlement and cultivation, and when he could show five years
residence upon and cultivation of this land as required by law, be
would be allowed to submit final proof. He was informed through said
decision that in the event of his failure to appeal therefrom or make
application for change of entry, the proper steps would be taken look-
ing to the cancellation of the same.
Yidrine never appealed from your said decision, and he claims that
it was impossible for him to comply with the requirements therein as to
change of entry. He thereupon began looking about for some one to
whom he could sell the improvements he had placed on the land. He
found a purchaser in the person of Arcade Buller to whom he disposed
of his improvements for the sum of about $450.
In the mean time, on September 1, 1893, John L. Guillory filed an
application dated August 30, 1890, for entry of said land. He made
the proper deposit of fees, the receipt of which was duly acknowl-
edged on same date.
On November 6, 1893, Arcade D. Buller filed his application dated
September 25, 1893, for the same tract, accompanied by the proi>er
deposit. It is stated by Buller's counsel that his application was pre-
sented at the local ofiice prior to that date, but that the same together
DECISIONS RELATING TO THE PUBLIC LANDS. 211
with the fees was returned. This action was attributed to the change
of officers at the New Orleans Office which occurred about that time.
The indorsement, however shows that Buller's application was filed
on November 6, X893.
Neither of the above applications was rejected upon presentation.
On March 3, 1894, a relinquishment by Vidrine was filed in the local
office bearing the note in type-writing, " To be used in the matter of
homestead application of Arcade D. BuUer for the land relinquished
by Vidrine, and applied for at the same moment by Buller." It seems
that this relinquishment was made September 5, 1893, but was not
filed until above date. In view of said relinquishment, the local office
on April 7, 1894, rejected the application of Guillory, for the reason
that the tract applied for was embraced in the homestead entry of
Arcade D. BuUer.
Guillory appealed to your office, and by letter of May 22, 1894, you
afiirmed the action of the local office, and in said decision you stated
as follows:
Since an application to enter land which is not subject to entry at the time the
application is made, confers no rights apon applicant (Hall et al v. Stone^ 16 L. D.,
199), and as the applications of Guillory and Bnller shoald have been rejected upon
pre.sentation, they could not be recognized as pending applications at the date of
Vidrine's relinquishment. Therefore, Buller, by renewing his application (as appears
from the note on Vidrine's relinquishment), on March 3, 1894, appeared as the first
legal applicant, and it was proper that his entry was allowed.
This decision was on the principle that Vidrine's adjoining farm
homestead entry was still alive, and so remained until March 3, 1894,
when cancelled for relinquishment; hence, no rights were gained by
filing applications prior to that date.
Under date of June 21, 1894, resident counsel for Guillory filed in
your office a motion for review of your said office decision of May 22,
1894* The principal errors assigned were substantially as follows: In
holding that Buller had the prior legal application on file when the
land became vacant; in not holding that the land was public and sub-
ject to entry when Vidrine's final proof on his adjoining farm home-
stead entry was rejected by your letter of July 27, 1893; in allowing
Bailer's entry upon his application of September 25, 1893, when the
record shows that he did not make a new application on March 3, 1894.
Resident counsel for Guillory contends, among other things, that if
the land was not public until the relinquishment was filed, then Buller's
entry was illegal, the application being made prior thereto, citing Mills
p. Daly (17 L. D., 347) ; that, upon the theory that a new application
on the part of Buller was necessary, it is insisted in the absence of an
appeal by Vidrine or an application on his part for change of entry as
allowed by the action of July 27, 1893, said decision of July 27, 1893,
was a final judgment and took effect from that date, citing Perrott v.
Connick (13 L. D., 598).
^
212 DECISIONS RELATING 10 THE PUBLIC LANDS.
By your office decision of September 6, 1894, you reiterated and
reasserted your conclusions of May 22, 1894, but modified said deei^iiion
to the extent of saying that in the presence of the adverse claim of
Guillory, your office could not allow Buller to perfect his entry by now
filing an affidavit, as it were nunc pro tunc showing that he was quali
fled on March 3, 1894, to make entry. You therefore directed the local
office to call upon the respective parties and allow them thirty days iu
which to file new applications and new affidavits, for entry of said
tract. On receipt of such applications within the time prescribed, they
were to be treated as simultaneously made, and the local office was
then to allow said parties to bid for the privilege of perfecting entry.
The right of entry was to be awarded to the highest bidder, and the
local office was to allow his entry of record.
As heretofore shown, your office held that the land in question was
reserved from entry until the filing of Vidrine's relinquishment on
March 3, 1894. This was error. Any rights that Vidrine may have
had ceased upon his failure to appeal from your office decision of July
27, 1893, or to change his entry in accordance with the instrnctions
contained therein. He had sixty days within which to comply with the
terms of said decision. Upon his failure to do so the said decision
became a final judgment, and the land thereby became subject to entry
by the first legal applicant. Within that time and to that extent yoar
office was correct in holding that the land was not subject to entry, and
that applications made within that time should have been rejected.
It will be observed that Guillory's application was filed September 1,
1893, which was prior to the expiration of the time allowed Vidrine by
your office decision to exercise his alternative right of appeal or to
change his entry, which said decision did not of neicessity become a final
judgment until the expiration of sixty days from the date it ^as ren-
dered. Guillory never renewed his said application. BuUer's applica-
tion was filed November 6, 1893, after the expiration of the sixty days,
when the judgment of your office had become final and the land thereby
released from any rights Vidrine may have had, and subject to entry.
Hence, the application of Buller to enter the land having been made
after it became subject to entry, his rights are superior to those of
Guillory.
As previously set out herein, counsel for Guillory contends that, under
the ruling in the case of Perrott v. Connick (13 L. D., 598), in the
absence of an appeal by Vidrine on an application on his part for
change of entry, your office decision of July 27, 1893, was a final judg-
ment and took effect from that date. This contention is not well made,
for the reason that, as heretofore shown, your said offi<;e decision could
not become a final judgment until the expiration of the time allowed
Vidrine to appeal or change his entry. Hence, the doctrine announced
in Perrott v. Connick, supra, can not be made to apply to this case.
At the same time, no rights could be secured by filing applications to
DECISIONS RELATING TO THE PUBLIC LANDS. 213
enter daring the period allowed Vidrine to appeal or change his entry,
as the land was thereby reserved subject to his rights, and no such
applications should have been received. The proper procedure in such
cases is stated in the recent case of Oowles v. Huffed al, (24 L. D., 81),
as follows:
That DO application to make eutry will be received by the local officers during the
time allowed for appeal from a jad(;ment of cancellation of an entry; but in all
Buch casea the land involved will not be subject to entry or application to enter until
the rights of the entryman have been finally determined, until which time no other
rights, inchoate or otherwise, can attach.
It has been determined that your decision of July 27, 1893, was a
judgment of cancellation, which became final upon Vidrine's failure to
appeal within the time allowed. No application to enter could attach
within that time. Buller was the first to file after the land became
subject to entry; hence, he was the first legal applicant.
In support of the holding that your office decision of July 27, 1893,
was a judgment of cancellation, it will be observed that by said decision
Vidrine was served with notice of what he might expect from your
office. He was presented with the alternative of changing his adjoin-
ing farm entry to a settlement entry, to be followed by residence and
cultivation sufficient to make a five years' showing, or in the event of his
failure to do this, or to appeal from your said decision, he was informed
that proper steps would be taken looking to the cancellation of his
entry. Vidrine took no action. Tlie language of your said office deci-
sion is construed to be equivalent to a judgment holding Vidrine's entry
for cancellation, unless within sixty days from notice he should comi)ly
with the requirements contained in said decision.
It will thus be seen that there is no middle ground for these parties
as suggested in your office decision of September 6, 1894. Buller's
application must either be accepted or rejected. He either has rights
sufficient to entitle him to entry of this land or he has none. Any
rights he may have were secured by his application filed November 6,
1893. If he secured any rights whatever by his said application, they
were such as to entitle him to the land in totOj and not merely such as
would entitle him to an equal bid for it with some other party.
Your decision of September (5, 1884, is accordingly so modified as to
allow BuUer^s application to make entry, and the same will be made of
record*
214 DECISIONS RELATING TO THE PUBLIC LANDS.
INDIAN LANDS-ALLOTMENT— TRUST PATENT— CANCELLATION.
Hull et al. v. Ingle.
The issaaooe of a trust patent on an Indian allotment terminates the jnrisdiotioii of
the Secretary of the Interior over the lands covered thereby as public lands, and
he consequently has no authority, in the absence of special statutory provision,
to cancel such patents for the purpose of correcting erroneous allotments.
The authority conferred upon the Secretary of the Interior by the act of January 26.
1895, to cancel a trust patent, in order to correct a mistake in the allotment, is
limited to oases in which the alleged error is one of those specifically named in
said act.
Assistant Attomey-Oeneral Lionherger to the Secretary of the Interior ^
February 15^ 1897. (W. C. P.)
On October 12, 1896^ Acting Secretary Sims referred to me certain
papers in the matter of Sylvester Hull et ah v. Jane Ingle, involving
the NB. i of Sec. 24, T. 37 N., E. 5 W., M. D. M., Oalifornia, with a
request for an opinion thereon. Afterwards on November 20, 1896, the
papers in regard to hearings ordered on certain approved Indian
allotments involving a similar question were also referred to me for an
opinion. Still later on December 3, 1896, the papers in the matter of
an allotment to Lizzie Bergen involving a similar question were also
referred to me for an opinion. The Commissioner of the General Land
Office has since requested that all these matters be considered together.
The question involved is as to the effect of a trust patent issued upon
an Indian allotment under the provisions of the act of February 8, 1887
(24 Stat., 388), and the act amendatory thereof approved February 28,
1891 (26 Stat., 794) and the jurisdiction of this Department to cancel
the same.
In the case of Hull v. Ingle the Commissioner of the General Land
Office recommended that a hearing be ordered to determine the charac-
ter of the land with a view to the cancellation of Ingle's trust paten t^
if it should be determined it was mineral in character as alleged by
Hull, reference being made to the act of January 26, 1895 (28 Stat,
641), as authorizing such action. The papers being referred to this
office for an opinion my predecessor on June 8, 1896, submitted his
opinion holding that the case did not come within the purview of said
act of 1895.
The Commissioner resubmits the matter and states his reasons for
80 doing as follows:
After a careful consideration of the matter I feel constrained to direct attention to
the fact that the Hon. Assistant Attorney General, in rendering the opinion referred
to omitted to consider what is regarded hy this office, with all deference, as the
determining point in the matter, viz: the particular nature of the 8o>called patent
in question, and it is in view of this that I venture to again direct attention to the
case.
This is, as the Commissioner of the General Land Office says, a very
important question, but it must be borne in mind that the interest of
DECISIONS RELATING TO THE PUBLIC LANDS. 215
the Tndians, who are so often described as the wards of the govern-
ment, is as much entitled to consideration as is that of white claimants
or of the government itself.
The allotment act contains the following provision in regard to
patents:
m
That upon approval of the allotments provided for in this act by the Secretary of
the Interior he shall cause patents to issue therefor in the name of t)ie allottees,
which patents shall be of the legal effect, and declare that the United St^ates does
and will hold the land thns allotted for the period of twenty-five years, in trust for
the sole use and benetit of the Indiiin to whom such allotment shall have been made,
or in case of his decease, of his heirs according to the laws of the State or Territory
where ench laud is located, and that at the expiration of said period the United
States will convey the same by patent to said Indian, or his heirs as aforesaid, in
fee discharged of said trust and free of all charge or incumbrance whatsoever.
The Commissioner of the General Land Office takes the position
that the title held by an Indian allottee under the first or trust patent
is an equitable title only, that an entryman under the public land laws
after the issuance of final receipt holds also an equitable title, that
this Department has authority to cancel an entry illegally allowed and
therefore it must have authority to cancel an allotment trust patent
illegally allowed. In other words, his position is that the Indian
allottee stands in the same position during the trust period of twenty-
five years as does an entryman during the period between the date of
final entry and the issuance of patent thereon. If this theory is to
prevail the Indian allottee is placed at a great disadvantage as com-
pared with the citizen entryman. In the one case the period within
which the title remains subject to attack is the full trust period of
twenty-five years while in the other it is theoretically nothing and
practically but a comparatively short time. This is not the position
that one whose interests the government is bound to protect in all
points should be forced to occupy.
Another fact that should be taken into consideration in this matter
is, that allotments are made by the agents of the government. The
aUotment act contains the following provision:
That the allotments provided for in this act shall be made by special agents
appointed by the President for such purpose, and the agents in charge of the
respective reservations on which the allotments are directed to be made under
inch rules and regulations as the Secretary of the Interior may from time to time
prescribe.
While this provision refers specifically to allotments to reservation
Indians, yet in the following section it is provided that allotments to
non-reservation Indians shall be made ^'in quantities and manner as
provided in this act for Indians residing upon reservations.'' The
responsibility is at least as strong upon the government as upon the
allottee to see that the allotment is proper in all respects. While
these facts may not go directly to the question of the authority of this
Bepartment, yet they should be borne in mind in the discussion of
216 DECISIONS RELATING TO THE PUBLIC LANDS.
that question because they show the peculiar position of the govern-
ment in its relationship to the allottee. In these matters the gov-
ernment is the grantor, also the trustee, and at the same time it is the
guardian of all the interests of the allottee as an Indian.
The policy of inducing Indians to breakup their tribal relations and
to take lands in severalty was adopted as a means of advancing them
towards civilization. It was recognized, however, that they would not
have an adequate conception of the value of property and would not in
all probability be able to preserve their holdings if left unrestrained,
and hence the salutary provision that the United States would hold
the land in trust for the period of twenty-five years. The provision was
made solely in the interest of the Indian, aud to secure him in the pos-
session of the land until he should become able to protect himself
therein.
The act of July 4, 1884 (23 Stat., 90), provided that Indians who had
located or should locate upon the public lands might avail themselves
of the provisions of the homestead law " as fully and to the same extent
as may now be done by citizens of the United States,'' and provided
for i)atents in the same words as were afterwards used in the allotment
act of 1887 hereinbefore quoted. It would certainly be most unjust
and inequitable to the Indians to hold that their title under the home-
stead law was subject to attack before this Department for twenty-
five years longer than the title of a citizen might thus be attacked, yet
the language in the act of 1884 conferring upon Indians rights under
the homestead law is the same as that of the allotment act. and if it be
held that this Department has authority to cancel patents issued under
the latter act it must necessarily be held that it has authority to cancel
those issued under the homestead law. The manifest injustice in this
holding is of itself a strong argument against its adoption.
These allotment or trust patents have been considered by this
Department as having the same effect as other patents in ousting the
Department of jurisdiction in the premises. The fact that they have
been thus treated is an argument in favor of the continuance of the
rule. That is, no change should be made unless it be clear that this
practice is radically wrong.
We have also a legislative declaration as to the extent of authority
in the Secretary of the Interior in the premises in the act of January
26, 1895, Hiipra, conferring upon him power to cancel such patents in
those cases where a double allotment has been made or a mistake has
been made in the description of the land. If it had been understood
that the power to cancel a patent, wrongly issued, existed, it would
have been unnecessary to enact the law of 1895. While the faet that
Congress took this view of the matter should not be considered as
decisive of the question, it is entitled to consideration, and should be
given weight as an argument in support of the position that the Secre-
tary had not, before that, authority to cancel such patents even though
DECISIONS RELATING TO THE PUHLIC LANDS. 217
illejjally issacd, and has not now authority in that direction beyond
that conferred upon him by said act.
The provision that these lands should be held in trust for the Indian
was made for his benefit and protection. In his opinion of July 27,
1888 (19 Op. Atty. Gen., 161), Acting Attorney General Jenks, referring
to said provision, uses the following language:
Bat Congress has not deemed it safe, iu making the Indian a freeholder, to give
him at once the same control over the land as other freeholders enjoy. The legisla-
tion above mentioned deprives the Indian settler of the right of convening or
eDcnmb«nng the land, in any way, for a period stated, or provides that it shall be
held by the United States for a given time in trast for the sole use and benefit of the
Indian, and, at the expiration of such time, be conveyed to him by patent.
Further on in said opinion he says:
It is tme that the Indian who gives up his wild life has taken a great step in the
direction of becoming a citizen, bat his situation as a member of a civilized commu-
nity exposes him to dangers which call for the fostering care and protection of the
<;oremment, without which the attempt to make him a useful citizen roust fail
necessarily. It is only after a oonsideiable period of probation that he can be
educated to anderatand the dignity and responsibilities that belong to citizeu.nhip
and the ownership of property, and it is to protect him, while receiving this
edncation, that congress has placed the above mentioned rcstraiuts upon his
property rights.
If it be true, and it will not be seriously disputed, that this provision
was made in the interest and for the benefit of the Indian, it should
uot be so administered as to operate to his disadvantage. It is tbe
daty of those charged with the administration of such a law to so con-
strue it as to roost certainly attain the end contemplated, while, at the
same time doing no violence to the language used. If the duty devolv-
ing upon the trustee in this case were simply that of executing the
patent at the end of the specified period, the trust would be a simple
or dry one, and it might perhaps be properly held that the full legal
title vested at once in the cestui que trust. The trustee here has, how-
ever, other and further duties in connection with the trust. This fact
is clearly set forth by Attorney General Garland in his opinion of Jan-
nary 26, 1889 (19 Op. Atty. Gen., 232) as to the right of the allottee to
sell and cut timber standing upon the lands allotted to him. After
mentioning the provisions of the act of February 8, 1887, supra, as to
the issuance of two patents be uses the following language:
Prior to the issninf^ of the second patent the United States is to act as trustee of
the lands. This relation as to the lands^is snbstitnted for the gnardianshi]) hereto-
fore exereised over the tribe. iTor twenty-five years, or longer, the obligation exists
to see that the intent of the law shall be faithfully carried out, and no unlawful
waste eommitted either by the cestui que tru4ft or any one else.
For the proper execution of the trust as thus considered it is neces-
sary that the legal title should rest in the trustee, and it follows there-
fore that the allottee takes under the first patent an equitable title
only. It does not necessarily follow, however, tliat the Secretary of
the Interior has authority to cancel that first or trust patent. It
218 DECISIONS RELATING TO THE PUBLIC LANDS.
woald «eem that a due regard for the rights of the Indians wonid
require that they be treated as if a third party had been named as
the trustee. If that had been done this Department could have no
greater authority in the premises than it has with respect to other
patents. This position is in entire accord with the spirit which should
govern all dealings between the government and its wards, and should
be assumed and adhered to, unless the law makes it the plain duty of
the Secretary to do otherwise. It should be borne in mind in the deci-
sion of this question, not only that the United States in these trans-
actions stands as grantor, as trustee and as guardian for the Indians,
and that the Indian is grantee and ward, but also that the Secretary
of the Interior must act in two capacities, first, as the agent and officer
of the government in charge of all busiuess pertaining to the public
lands, and second as the one in charge of Indian affairs. In his first
capiicity he approves the allotment selections and causes a patent to
issue as provided by law. When a tract of land is selected for an
allotment it is thereby reserved firom other disposition pending final
action upon that selection, but when that final action is taken by the
issuance of the first or trust patent the land is thereby finally disposed
of and is no longer in any sense public land undex the control of the
Secretary of the Interior in his capacity of the ofiicer in charge of
business pertaining to the public lands. His work in that capacity is
completed, and he is relieved of control of the land in that capacity
just as effectually as if all further duties in respect to said land had
been devolved upon an entirely different officer of the executive depart-
ment. From the time of selection or at least from the time of approval
thereof to the issuance of the first patent the duties of the Secretary
in respect to said land are mixed. He stUl has a certain degree of
control over it as public land and at tbe^ same time he is to care for it
as guardian of the Indian, but from the date of the trust patent be is
vested with the care and control of the land solely as agent of the
trustee and as guardian of the allottee. His duty then is to protect
the Indian not only in the present use and enjoyment of the property
but also as to his future use and enjoyment thereof. If the dual char-
acter of the Secretary of the Interior be borne in mind, it will be easy
to determine the point at which his jurisdiction over the land as public
land ceases and his control of it as the property of the Indian begins.
That point of time is the date of the issuance of the first patent pro-
vided for by the law, by which the present equitable estate in the land
is granted to the allottee, and the ultimate fee simple is guaranteed
him.
In dealings between the government and its wards, the Indians, all
matters of doubt should be resolved in the interest of the Indian.
Thus, if the authority of the Secretary of the Interior to cancel the
patents in question were doubtful, I should be constrained to advise
against its exercise. As a rule, the powers of an executive ofiicer are
DECISIONS RELATIKG TO THE PUBLIC ULNDS. 219
not to be enlarged hj implication in the direction of encroachment
upon the functions of the judiciary. While this rule obtains generally
it is esiieeially applicable here where the enlarged powers if used at
all would be in derogation of the interests of the Indians.
Many mistakes have i>robably been made both in the way of making
allotments of land not subject to disposal in that manner and by award-
ing allotments to persons not entitled thereto. This work is to be done
by agents of the government, and such mistakes must be due, at least
to a considerable extent, to the carelessness of the agents charged
with that duty. I gather ironi the papers before me that this fact has
been recognized both by the Commissioner of the General Land Office
and by the Commissioner of Indian Affairs, and that steps have been
taken to prevent such mistakes as far as possible in the future. In the
instructions issued by Secretary Smith on June 15, 1896 (22 L. D., 709),
the respective duties of those two officers are defined, that of determin-
ing as to the status of the applicant being left to the Indian Office, and
that of determining the character of the allotment and the right of the
allottee being left to the General Land Office. If the machinery now
entirely under the control of the government be i)roperly handled the
great evils which it is claimed the Department sliould have the power
to correct would be prevented. It would be a dangerous policy for the
executive department to assume powers properly belonging to the
judiciary, in the absence of express legislative authority for the pur-
pose of correcting evils, the existence of which could have been pre-
vented under the authority clearly belonging to the executive.
That mistakes will occur is quite certain but such cases have been
in part at least, provided for in the act of January 26, 1895, and if it
be absolutely necessary to the proper administration of the law that
the powers of the Secretary should be still further extended. Congress
should be asked to enact such laws as may be necessary to that end.
The Commissioner of the General Land Office in his letter submitting
this case says:
Ihave not referred herein to the act of January 26, 1895 (28 Stat., 641), aa authority
for this proposed action as I am of the opinion that said act was pasHed merely to set-
tle any possible doubts which might have existed in the minds of some persons as to
the authority of the Department to cancel such so called patents. The power to do
what is authorized by said act existed before its passage, and would exist were the
Si*t repealed.
In the matter of the allotment of Lizzie Bergen subsequently sub-
mitted, which he asks to be considered in connection herewith he argues
that a patent issued upon an allotment covering lands chiefly valuable
for the timber thereon was erroneously and wrongfully issued within
the purview of said act of 1895, and therefore should be canceled under
the authority vested in the Secretary by that act. I have therefore
examined that question in connection with the opinion submitted by my
predecessor. The provisions of said act, and the reasons set forth for
220 DECISIONS RELATING TO THE PUBLIC LANDS.
the conclusion reached in said opinion are embodied in the followiug
quotation therefrom:
The act of January 26, 1895 (28 Stat., &11), reads as follows:
** That in all cases where it shall appear that a double allotment of land has here-
tofore been, or shall hereafter be, wrongfully or erroneously made by the Secretary
of the Interior to any Indian by an assumed name or otherwise, or where a mistake
has been made or shall be made in the description of the land inserted in any patent,
said Secretary is hereby authorized and directed, during the time that the United
States may hold the title to the laud in trust for any such Indian and for which a
conditional patent may have been issued, to rectify and correct such mistake and
cancel any patent which may have been erroneously or wrongfully issued, whenever
in his opinion the same ought to be cancelled for error in the issue thereof, or for the
best interests of the Indian, and if possession of the original patent cannot be
obtained, such cancellation shall be effective if made upon the records of the General
Land Office ; and no proclamation shall be necessary to open the lands so allotted
to settlement."
The patent here in question is a trust patent and therefore of the class contem-
plated by said act. The mistake if any, in the issuance of said patent is not one
which is specifically mentioned m said act. The authority to cancel it, if it exists
at all, must be under the very general expression, ''and cancel any patent which
may have been erroneously and wrou<^fully issued, wherever in his opinion the same
ought to be cancelled for error in the issue thereof," If these words be read by
themselves they might be held to authorize the cancellation of any patent whatever,
but the context plainly shows that it must be limited to trust patents issued to
India u allottees. I am inclined to the opinion that it must be further limited and
held to refer to those trust patents only which rest upon mistakes of the character
mentioned in the first i)art of the act. If it had been intended to authorize the can-
cellation of any trust patent erroneously issued, theu it was entirely unnece.S8ar\- to
specify any class of mistakes which might be corrected. It would have been sufii-
cient to say : *' The Secretary of the Interior is hereby authorized and directed to
cancel any trust patent issued to an Indian allottee whenever in his opinion such
patent has been erroneously and wrongfully issued."
To hold that this net is to be construed as if it read thus would be to say that the
first half of the law as it reads in the books is without meaning. This would be
to violate that elementary rule of construction, which requires that all parts of a
statute must, if possible, be given effect. To follow that rule in this instance it is
necessary to say that the Secretary was authorized to correct certain mistakes in
allotments and to cancel any patent issued upon such erroneous allotment. Such
construction gives effect to all parts of the act and does no violence to the language
used.
This act enlarges the Jurisdiction of the Secretary of the Interior and confers
upon him powers theretofore exercised by the courts only, and is therefore to be con-
strued strictly and held to authorized action in only those cases coming clearly
within the meaning of the law.
In the case under consideration the party was entitled to an allotment and the
land applied for waa properly described in the patent. Upon the record, as then
made up, the patent was properly issued. It is now alleged, however, that the
proof upon which the allotment and the patent in question was issued was, as to
the character of the land, false and fraudulent. If the construction of said act, as
set forth above, be the correct one, this case does not present such a mistake as is
contemplated by this law.
The question as to the character of this land was necessarily considered before
the issuance of patent, and the conclusion was reached, and correctly so upon the
record, as then made up, that it was of the character contemplated by the laws
authorizing allotments. It is now asserted that this judgment was wrong and the
DECISIONS RELATING TO THE PUBLIC LANDS. 221
Department is asked to reopen the matter, make a further investigation and reverse
its former judgment. I do not think the law in question demands such action.
The propositions laid down here are sound and the conclusion
reached logically follows from said propositions. It will not do to
assume that the Secretary of the Interior has authority to exercise the
functions properly belonging to the courts simply because fraud has
been committed in connection with some of these allotments. Ko
doubt patents have been procured under other laws through fraud, but
it would not be argued that the Secretary therefore has jurisdiction to
investigate such cases and authority to cancel the patent if he shall
determine it was wrongfully issued. The authority conferred by the
act of 1895 may not be extended by implication, but must be limited
to those cases clearly coming within the letter of the law. I find no
good objection to the conclusion reached in my predecessor's opinion.
After a full consideration of this matter I conclude and so advise
you that the Secretary has no authority to cancel the trust patent
lieretofore issued in this case.
Approved:
David B. Feancis,
Secretary.
CONTEST— PKEFERENCrB RIGHT OF ENTRT.
HOBGES ET AL. V. OOLCORD.
The preferred right of a saocessful contestant is not defeated or impaired by adverse
settlement claims acquired subsequent to the entry under attack.
The right of a successful contestant accorded by section 2, act of May 14, 1880, is
not dependent upon the truth of the charge as laid, if the cancellation of the
entry is the result of a contest prosecuted in good faith.
Secretary Francis to tlie Commissioner of the General Land Office^ Feb-
(LH. L.) ruary J27y 1897. (E. W. H.)
1 have considered the appeals of James L. Hodges and William 0.
Runyon from your office decision of October 3, 1896 (on review), dis-
missing their contests and aUowing the entry of Golcord to i*emain
intact.
This case involves lots 2, 3, 12, 13, 14, 15, and 18 of Sec. 30 T. 11 K,,
R. 3 W,, Oklahoma district, O. T.
Most of the facts as they appear in the record have been heretofore
stated in departmental decisions of December 1, 1894 and April 12,
1895, in the case of Simpson and Golcord v, John Oaymon, and are full}'
set forth in your decision of October 3, 1896, from which the present
appeals are taken, so that only such portions as are material to the
pending issues need be here repeated.
Upon a hearing as to the laud in question between Golcord and Oay-
mon, upon the charge of disqualification by reason of Gaymon having
entered the Territory during the prohibited period, — in which the
222 DECISIONS RELATING TO THE PUBLIC LANDS.
application of Hodges to intervene was denied — the local office decided
in favor of Gaymou, and Coleord appealed.
On March 21, 1893, yonr office held that while Gaymon was in the
Territory at the time of the opening — working for the A., T. & S. F.
B. R. Co. on its right of way, he gained no advantage therefrom — and
affirmed the decision below denying the application of Hodges and
dismissing the contest of Coleord.
This decision came before the Department for consideration upon
the appeal of Coleord, the motion for review of Hodges (which was
not acted on by your office), and a third contest filed by Runyon on
April 13, 1893, alleging prior settlement and the disqualification of
Coleord. Hodges also filed a supplementary affidavit of contest mak-
ing the same charges.
While the case was pending before the Secretary, to wit, on April
12, 1893, Gaymon filed his relinquishment of the tract, and Coleord
made homestead entry No. 6850 of said land.
On December 1, 1894, the Department, having in view the rights of
all parties, held that '^upon the cancellation of Gaymon's entry by his
voluntary relinquishment, all contests pending against it necessarily
abated. There remained nothing for the Department to do, and the
case was closed," thus denying Hodges' motion for review "but with-
out prejudice to any rights which Hodges may lawfully assert and
maintain against the present entryman." The papers in the case of
Runyon were returned for appropriate action.
Upon this decision, your office, on January 5, 1895, directed a hear-
in.r* on the charges of Hodges and Runyon againt Coleord.
Before said hearing was had, however, a motion for review of the
departmental decision of December 1, 1894, was filed by Coleord, insit>t-
ing that the Department erred in not awarding him the preference
light of entry by reason of the statement made in the relinquishment
of Gaymon.
Although said motion for review was denied, the Department, in its
decision thereon of April 12, 1895, said :
Gaymon's relinquishment, written on the back of his dnplicate receipt, is in these
words and figures foUowing: '^I hereby relinquish all my right to and interesting
and to the government of the United States, and ask that my entry be canceled of
record. This reliuqnishment is made for the reason that my entry is voidable, for
the reason that I was in the Oklahoma country at noon of April 22, 1889, and so held
by the decision of the supreme court of the United States in the ca«e of Smith r.
Townsend.
JouK Gaymon.
Subscribed and acknowledged before me this 12th day of April, 1893.
D. D. Leach, RegUter,
It is evident by this that the relinquishment of Gaymon was induced by the con test
of Coleord; and the right of a successful contestant is superior to the right of any oue
who has not a right superior to that of the entryman whose entry was in content.
But as a hearing has been ordered upon the application of Hodges to contest Col-
cord's entry; no judgment will be rendered in this case, in advance of snch hearing.
The rights of the respective parties can then be determined.
DECISIONS RELATING TO THE PUBLIC LANDS. 223
At the hearing had in the case of Hodges and Eunyon against Col-
cord, on September 20, 1895, Colcord moved to dismiss said contests, for
tbe reason that neither of said plaintiffs alleged sufficient facts to show
a superior right to that of Gaymon, the former entrynian.
The evidence introduced by Hodges and Runyon showed that Hodges
had resided on said land since July 22, 1889; Runyon since May 13,
18110, and Colcord since 1893, and that Colcord had paid Gaymon $650
for his relinquishment, but no evidence was introduced to show the
disqualification of Colcord.
Colcord introduced no evidence but elected to stand upon his said
motion to dismiss, and upon "the record affecting this tract of land."
On October 25, 1895, the local office rendered a decision recommend-
ing the dismissal of said contests, basing its action upon the opinion
expressed by the Department, relative to said relinquishment, and the
right of a successful contestant, in its decision of April 12, 1895 {supra).
Upon the appeals of Hodges and Runyon your office, on April 29,
reversed said local office decision and denied to Colcord the preference
right to make entry of the land, holding that said departmental deci-
sion of April 12, was not res judicata upon this point, and that whether
Colcord acquired any right to said land by virtue of his content depended
upon whether the charge of disqualification against Gaymon is true.
In its decision upon Colcord's motion for review (October 3, 1896) your
office used this language:
It is ftppareut that the decision of this office now sought to be reviewed, misinter-
preted the decioion of the Secretary, which clearly held that Gaymon's relinquish-
ment was the result of Colcord's contest, and that his right was superior to the
right of any one whose settlement was not made prior to the entry of Gaymon.
Knt independently of said decision such should have been the ruling of this office.
The record shows as well as the relinquishment of Gaymon, that he was in the
Territory at the hour of the opening and therefore under the decision of the supreme
court of the United States in the case of Smith r. Townsend he was clearly dia-
qoAlified. It was unnecessary to introduce evidence npon this point. As Hodges
and Rnnyon failed to show any settlement upon the tract in controversy prior to
the entry of Gaymon, they could not, by a settlement made thereafter, and while
the land was covered by said entry, and subject to Colcord's contest, gain any rights
by their settlement. Hence the decision of the local office dismissing the contests
of Banyon and Hodges was correct and should have been affirmed.
Your office, therefore, granted the motion for review, dismissed the
contests, and allowed the entry of Oolcord to remain intact.
The thirty-four specifications of error. In which the judgment here
complained of is assailed by the attorney for Hodges, may be general-
ized so as to bring the material issues in the case within the scope of
these two questions:
1. Did your office err in reviewing and setting aside its decision of
the29thof April, 1896 ?
2. Was there any circumstance connected with the relinquishment
of Gaymon, which adversely affected Colcord's right to enter the land;
either as the first applicant therefor after it became subject to entry,
or, as a successful contestant in the exercise of his preference right f
224 DECISIONS RELATING TO THE PUBLIC LANDS.
It appears to rae that the claims of Hodges and Runyon rest upon no
other basis than that of settlements upon land, which, at the time, was
covered by the entry of (laymon. It had been se^egated from the
public domain by proper official action. No one could acquire any
present right to it while in this condition. A settlement upon it, with
a view to the initiation of an adverse claim — if not amonuting to a
trespass under the doctrine of Atherton r. Fowler (96 U. S., 513) is
certainly without any legal status (Maggie Laird, 13 L. D., 502).
There is a line of cases to which attention is called in the argument
of Hodges' attorney, in apparent conflict with this doctrine, which
holds that a settler on land covered by the entry of another acquires a
legal status as against the government the instant such entry is relin-
quished, and the right thus acquired is not defeated by the entry of a
third party immediately following such relinquishment. (McGowan r.
McCann, 15 L. D., 542; Fosgate v. Bell, 14 L. D., 459; Poole r.
Moloughney, 11 L. D., 197).
In all of these cases — the settler being upon the land at the moment
it became a part of the public domain and subject to entry — his right
of priority was recognized as superior to that of a third party whose
claim rested upon an entry subsequent to the settlement. The relin
quishment had no other effect than to relieve the land from incumbrance
and open up the other questions upon which the decisions turned.
But in the case at bar the question is whether Gaymon's relinquish-
ment was the result of Colcord's contest!
If this be the fact Colcord had a preference right of entry which
nothing could defeat except his own disqualification, or a right superior
to that of Oaymon, the original entryman.
It is unnecessary to pass upon the conflicting interpretations of the
departmental decision of April 12, 1895, as given in your office decisions
of April 29, 189C, and October 3, 189G, respectively, further than to
hold that the judgment of the Department in said decision was sus-
pended to await the issue of the hearing which had been ordered upon
the application of Hodges to contest Colcord's entry. Said decision,
however, did express a very decided opinion "that the relinquishment
of Gaymon was induced by the contest of Colcord," and, also, that:
" the right of a successful contestant is superior to the right of anyone
who has not a right superior to that of the entryman whose entry was
in contest."
This language — in view of the expressed purpose to render no final
judgment in the case — must be regarded as dicta and having no other
efiTect than a preliminary intimation to the contestants that, uulci^s a
right superior to Gaymon's was established at the hearing, the prefer-
ence right of Colcord would not be ciffected.
As neither Hodges nor Kunyon alleged actual settlement prior to
Gaymon's entry, and as their contests were subsequent in date of
filing to the contest of Colcord, there was no error in rejecting Hodges'
application to intervene in the latter.
DECISIONS RELATING TO THE PUBLIC LANDS. 225
The only issue was as to G^iymon's disqualification, by reason of
having entered the territory during the prohibited period.
Upon that issue — Simpson, who had filed the first contest,' liaving
abandoned it, Golcord, as next in order, had the right of way as against
Hodges and Bunyon. No rule is better settled than that contests are
entitled to precedence in the order of their filing at the local office.
The record shows that Golcord was diligent in the prosecution of his
contest, and that it was pending on appeal before the Hon. Secretary,
at the time Gaymon's relinquishment was filed.
The question of Oaymon's disqualification by reason of his presence
iu the Territory during the prohibited period has not been passed upon
by the Department, and it is unnecessary to pass upon it now for the
reason that it ceased to be an issue when he relinquished his entry.
Section 2 of the act of May 14, 1880, declares that
in all cased where any person has contested, paid the land office fees and pnicnred
the cancellation of any pre-emption, homestead or timber- culture entry he
ahall be allowed thirty days to enter said lands.
There is nothing in the language here used which makes the prefer-
euce right of the contestant dependent upon the truth of the charge of
disqualification of the en try man. If the cancellation of the entry —
whether by the relinquishment of the en try man, or the judgmeut of
the Land Department — was the result of the contest, the preference
right of entry inures to the contestant by operation of law.
The authorities agree that a relinquishment filed during the pend-
ency of a contest is presumptively the result of the contest, (Webb t?.
lioughrey et aL<, 9 L. D., 440, and cases therein cited) and I find nothing
in the record to overcome this presumption in the case at bar.
It is contended that it was the $650 paid by Golcord which moved
G<iymon to make his relinquishment, and that Gaymon's statement
(indorsed on his duplicate receipt) that:
This relinqnishment is made for the reason that my entry is voidable, for the reason
that I was in the Oklahoma ooantry at noon of April 22, 1889, and so held by the
decision of the supreme oonrt of the United States, in the case of Smith r. Townsend,
is ontruthful. The facts and circumstances of the case lead me to a
different conclusion.
Gajrmon had resisted Golcord's contest at the hearing before the
local office, and again, when it came before your office on Golcord's
appeal, and still again, when it came on further appeal before the
Department. In fact, Gaymon did not relax his hold upon his entry
until the supreme court rendered its decision in the case of Smith v.
Townsend (149 XJ. S., 490) — a decision from the court of last resort,
upon a state of facts, similar in nearly every respect, to the facts in his
own case.
This decision was upon the 3d of April, 1893, and Gaymon's relin-
quishment was ten days thereafter, to wit, on April 13th, 1893. It
would be contrary to every sound principle of deduction to conclude
10671— VOL 24 15
226 DECISIONS RELATING TO THE PUBLIC LANDS.
that Gaymou would bave continued to rely upon the decisions of the
local office holding him to be qualified — although affirmed by year
office — in the face of a decision of the supreme court holding the
contrary view.
I have, therefore, no doubt whatever that Gaymon's relinquishment
"was induced by the belief that the charge of disqualification as made
^u Colcord's contest would be sustained by the Department, on the
authority of Smith v. Towusend. That he should desire under such
circumstances to save the cost of his improvements and of the labor he
had expended u|K)n his entry, by its relinquishment, was natural, aod,
cannot with fairness, be assailed as fraudulent.
His ofier to sell to Hodges — so far from being an indication of bad
fnith — ^is, to my mind, a proof that there was no collusion between
Gaymoii and Golcord.
The case of Cullins v. Leonard (17 L. I)., 412), cannot be followed iu
the case at bar, for the reason that Leonard's contest was in bad faith
And speculative — as he had held Pentz' relinquishment in his posses-
sion during the pendency of his contest against Pentz' entry, and
frequently offered the same for sale.
The conclusions reached in your office decision (on review) of October
3, 1896, are affirmed. The contests of Hodges and Bunyon will be
dismissed and the entry of Golcord allowed to remain intact.
RAILROAD GRANT— FORFEITITRK- ACT OF JITNE 8«, 187-1.
St. Paul, Minneapolis and Manitoba Ry. Co. v, Thompson.
The conditions on which the extension of time for the completion of the road was
giyen by the act of June 22, 1874, operate as a revocation of the grant to the
extent of the rights of actaal settlers at the date thereof; and the protection thns
given such settlers is effective, even though the lands were listed under the grant,
and such list approved prior to the passage of said act.
Secretary Francis to the Commissioner of the General Land Office^ Feb-
<I. H. L.) ruary 27, 1897. (F. W. C.)
The record in the case of the St. Paul, Minneapolis and Manitoba
Railway Company v. Peter Thompson, involving the N. J of the SW. J
and the N. ^ of the SE. J of Sec. 11, T. 148 N., R. 49 W., Crookston
land district, Minnesota, was forwarded with your office letter of
December 19, 1893, on appeal by the company from yoar office decision
of July 20, 1883.
It appears that the appeal was duly filed in time but the same was
mislaid and for that reason the record therein was not forwarded at an
earlier day.
The tract involved is within the jirimary limits of the grant for said
<M)mpany upon the line known as the St. Vincent Extension of said
joad, as shown by the map of definite location filed and accepted
DECISIONS RELATING TO THE PUBLIC LANDS. 227
December 19, 1871. The grant made to aid in the construction of this
part of the road was by the act of March 3, 1871.
The road was required to be completed by March 3, 1873, but the
time was extended to December 3, 1873, by the act of March 3, 1873
(17 Stat., 631). The company failed to complete the road within the
time allowed, and by the act of June 22, 1874 (18 Stat., 203), the time
was again extended to March 3, 1876, upon the following conditions:
That all rights of actaal settlers and their grantees who have heretofore in good
iaith entered apon and actaally resided on any of said lands prior to the passage of
this act, or who otherwise have legal rights in any of snch lands, shall be saved
and secured to snch settlers or snch other persons in all respects the same as if said
lands had never been granted to aid in the construction of the said lines of railroad.
The company listed the land November 28, 1873, which list was
approved by this Department April 30, 1874. Under the instructions
contained in your office letter of September 3, 1874, which directed
that " settlers upon the lands of the St. Vincent Extension,
who were actual settlers at the date of the act of June 22, 1874, and
applied to file within the legal period, are protected by the statute and
their filings may be received," etc., Thompson was permitted to file
pre-emption declaratory statement for this land, in which settlement
was alleged May 28, 1874.
By letter of March 28, 1882, the local officers forwarded Thompson's
appeal from their action rejecting his tender of proof and payment
upon his filing covering this tract for the reason that the tract had
been duly listed by the said company, as before stated. It was upon
a tender of this proof and payment that the present controversy arose,
the matter being considered in your office decision of July 20 1883, in
which it was held that as Thompson's entry was made subsequent to
the expiration of the grant of December 3, 1873, the same comes
within the provisions of the third section of the act of April 21, 1876,
and is therefore confirmed. Your office decision therefore directed
that Thompson be permitted to make final entry of the land; from
which action the company appealed to this Department.
As thus presented, the case is in all important particulars similar to
that of Tronnes v. St. Paul, Minneapolis and Manitoba Kailway Com-
pany (18 L. D., 101), wherein it was held (syllabus) :
The act of June 22, 1874, extending the time for the completion of the road, in
aid of which the previous grant had been made, and protecting the rights of actual
settlers at the date of said act, required the company to file its acceptance of the
terms imposed thereby, but the protective provisions therein, for the benefit of
settlers, are not dependent upon the company's acceptance of the act.
The conditions on which the extension of time was given by Congress in said act
oj)erate as a revocation of the grant to the extent of the rights of actual settlers at
he date thereof. It is in eflfect an extension of the protection intended to be given
by the excepting clause in the original grant, and is applicable to all lands whether
patented or otherwise.
The certification of lands prior to the passage of said net in no wise affects the
right of an actnal settler protected thereby, nor does it embarrass the Department
in extending to snch settler the protection of said act.
228 DECISIONS KELATIKG TO THE PUBLIC LANDS.
For the reasons given in said decision your office decision, recogniz-
ing tbe filing by Tliompsou as against the grant to said company, is
affirmed, and the papers are herewith returned for your further action
looking to the completion of said entry.
STATE SELECTION— CEKTmCATIOISr-PATENT.
Edwin F. Fbost et al.*
The inadvertent certification of State selections at a time 'when the lands covered
thereby are included within an existing entry, and involved in proceedings then
pending before the Department, is inoperative, and constitutes no obstacle to the
issuance of patent in accordance with the final judgment in said proceedings.
Secretary Francis to the Commissioner of the General Land Office^ Decern*
(I. H. L.) ber 26j 1896. (J. L.)
This case involves lots 3 and 4 of section 35, and lots 3 and 7 of sec-
tion 30, in T. 31 S., B. 39 E., Gainesville laud district, Florida, contain-
ing 146.75 acres.
On June 28, 1895, list No. 14 of lands selected for the State of Florida
under the provisions of the act of Congress of March 3, 1845 (5 Stat.,
788), and sections 2275 and 227(5 of the Revised Statutes, and embrac-
ing the four lots described, was approved by the Secretary. Where-
upon, the State of Florida, by deeds dated July 10, 1895, for valuable
considerations, conveyed lot 3 of section 35 and lot 3 of section 30, con-
taining together 88 acres, to E. M. Lowe; and lot 4 of section 35 and
lot 7 of section 30, containing together 58.75 acres, to G. M. Robbins,
and to B. F. Hampton and H. E. Taylor as trustees for the benefit of
James M. Graham, in equal shares; that is to say, one undivided half
of said 58.75 acres to said Robbins, and one undivided half thereof to
said trustees.
On July 31, 1895, your office informed the authorities of the State of
Florida, that the lands in question had been inadvertently and through
mistake certified to the State, and requested the governor to immedi-
ately execute and transmit to your office a proper deed reconveying
the said land to the United States, and offered to permit the State to
select an equal quantity of land elsewhere in lieu thereof. In reply
your office was advised that the State had already disiK>sed of said
land, as above stated, and had thereby, divested itself of title, and
was without legal authority to reconvey the land to the United States.
Nevertheless, the governor, through the commissioner of agriculture,
under date of May 28, 1896, transmitted to your office a quit-claim
deed to the United States for the four lots of land aforesaid, bearing
date August 17, 1895, and executed by the board of education of the
State of Florida, under the provisions of sections 234 and 235 of the
revised statutes of the State.
Not reported in Vol. XXIIL
DECISIONS RELATING TO THE PUBLIC LANDS. 229
Yoar office was of opinion tbat said quit-claim was ^< without effect
for the reason that the State had previously, to wit: on July 10, 1895,
divested itself of title.'' And therefore your office by letter "G" of
July 2, 1806, at the instance and request of Homer Kessler, submitted
to the Secretary the following recommendation :
In order therefore that the United States may be reinvested with title, I respect*
fally recommend that the Honorable Attorney General be requested to cause the
proper proceedings to be instituted to obtain a judicial decree declaring said list
null and void so far as the same embraces lots 3 and 4 of section 35, and lots 3 and 7
of section 36, T. ^ S., R. 39 £., and that E. M. Lowe, G. M. Hobbins, and B. F.
Hampton and H. £. Taylor, trustees for James M. Graham, be joined as parties to
such suit.
With said letter your office transmitted all the papers in the case,
consisting of forty-four files. They are voluminous, and begin with
May 7, 1877.
It appears tbat on August 25, 1883, Edwin Frost was permitted to
make cash entry, Ko. 6090, of the four lot^s of land aforesaid, under
the second section of the act of June 15, 1880 (21 Stat., 237). Said
entry was contested and various proceedings were had in your office,
daring the progress of which, E. M. Lowe as owner of lot 3 of section
35 (containing 48 acres) and lot 3 of section 36 (containing 40 acres),
and Homer Kessler as owner of lot 4 of section 35 (containing 18.75
acres), and lot 7 of section 36 (containing 40 acres) — ^both claiming
Qoder Frost's title — were made parties to the controversy.
On May 15, 1803, your office held Frost's entry for cancellation.
Lowe and Kessler both appealed ; and on December 8, 1894, this Depart-
meui affirmed your office decision.
On April 13, 1895 (within the time prescribed by the Eules of Prac-
tice), Kessler filed a motion for a review of said departmental decision.
And while said motion was pending and undecided, your office inad-
vertently and by mistake recommended the approval of list No. 14 of
lauds selected by the State of Florida, and thereupon the Secretary
approved said list as aforesaid.
On July 6, 1895 (21 L. D., 38), this Department on consideration of
Kessler's motion for review, revoked and annulled the departmental
decision of December 8, 1894, and held Frost's entiy intact.
After a careful examination of all the papers this Department is of
opinion, that it is not necessary to begin judicial proceedings to set
aside, as to lots 3 and 4 of section 35, and lots 3 and 7 of section 3G, the
approval and certification of list No. 14 described in your letter of
recommeodation; that the General Land Office and this Department
were without authority to dispose of or to take any action in respect of
the lots of land aforesaid while Kessler's motion for a review of depart-
mental decision of December 8, 1894, was pending and undecided, as
stated in your letter, and while the land was segregated by Frost's
entry; and that therefore the approval and certification of said list !N^o.
14, is null and void as to the lots of land aforesaid, and interposes no
230 DECISIONS RELATING TO THE PUBLIC LANDS.
obstacle to tbc issoing of patents for said lots in accordance with the
departmental decision of July 6, 1895. (See case of Weeks t?. Bridgman,
159 U. S., 541).
Your office is, therefore directed to issue to Homer Kessler a patent
for lot 4 of section 35, and lot 7 of section 36, T. 31 S., B. \) E. ; and to
E. M. Lowe (upon his making application therefor), a patent for lot 3
of section 35, and lot 3 of section 36, T. 31 S., R. 39 E.*
The State of Florida will be permitted to select elsewhere an equal
quantity of public land in lieu of the four lots aforesaid.
PRACTICE— APPEAL-CERTIORARI.
ElHSTAD V. i^ORTHEBN PACIFIC R. R. Oo.
A writ of certiorari will not issue where it is apparent that the appeal, if before the
Department, woald be diamiBsed.
Secretary Bliss to the Commissioner of the Oeneral Land Office, March
(1. H. L.) 15,1897. (J. L.)
This case involves the SE. J of section 7, T. 144 N., R. 44 W., Crooks-
ton latid district, Minnesota; a tract of land lying within the indem-
nity limits of the Nortbern Pacific Railroad Company, and selected by
said company on June 17, 1885.
Oa <lanuary 8, 1895, the local officers rejected Michael Eimstad's
application to make homestead entry of said tract; he alleging settle-
ment in the year 1883, and valuable improvements on the land. On
May 29, 1895, your office affirmed the action of the local officers and
rejected Eimstad's application, because his declaration of intention to
become a citizen of the United States was not made until March 7,
1887, and therefore he acquired no rights to the land applied for, prior
to June, 1885, the date of the company's application to make selection
thereof.
Service of notice of said decision was acknowledged by Eimsta^Us
attorney on June 13, 1890. On July 28, 1896, he filed his appeal to
this Department; but he failed to file any proof of service of notice of
said api>eal upon the Northern Pacific Railroad Company. He was
notified of said defect on August 22, 1896, in accordance with Rule of
Practice 82, and was requested to furnish proof of service of notice of
his appeal, etc., etc., on the opposite party in accordance with the ti3rd
Rule of Practice. In reply he furnished proof that such service was
not made until October 12, 1896 — which was more than 120 days after
he had received notice of the decision appealed from.
In the cases of Rudolph Wurlitzer, 6 L. D., 315, and Hannon v.
Northern Pacific Railroad Company, 11 L. D., 48, this Department
* By departmental order of February 6, 1897| tlie directions for the iusuance of
patent are modified so as to accord with the decision of Jaly 6, 1895.
DECISIONS RELATING TO THE PUBLIC LANDS. 231
held that the sufficiency of aii appeal, if filed in time, is one for the
appellate authority to pass upon. And that in all cases, whether
appeals are defective under Rule 82 or incomplete under Eules 8$
and 90, all the papers in the case, and especially the appeal itself^
should be transmitted, and the letter of transmittal should specifically
designate wherein the appeal is defective.
In this case, however, it is unnecessary to direct your office to certify
the proceedings to the Secretary. It is manifest that notice of th&
appeal was not served upon the opposite party within the time pre-
scribed by the Rules of Practice. If the appeal were before the Depart-
ment it would be immediately dismissed.
Therefore the application for a certiorari is hereby denied.
8TVAMP LANDS— IXDEMNITY—ACaS OF 1849 AND 1860.
State of Louisiana.
The swampj character of land forming the basis of a claim for indemnity should be
shown in the same way, and by evidence of the same character, as required to
entitle the State to lauds under its grant.
Action on an indemnity list, in which the claim as to some of the tracts is allowed,
amounts to a rejection of the claim as to the remainder.
By the act of March 2, 1849, all the swamp lands in the State of Louisiana were
granted to said State, except lands bordering on streams, rivers, and bayous,
which were treated by Congress as theretofore reclaimed Arom their swampy char-
acter, and falling within the provisious of the act of February 20, 1811, which
gave to said State five per cent of the proceeds of their sale in order to provido
a fund for their reclamation.
At the date of the passage of the general swamp land act of September 28, 1850,
there were no lands in the State of Louisiana subject to the operation of said
act. as all of the swamp land had, prior thereto, been granted to said State hy
the special act of 1849; and it therefore follows that the State is not included
within the indemnity provisions made by the act of March 2, 1855, for said pro-
visions were specifically limited to States included in the general act.
Secretary Blis8 to the Commissioner of the Oeneral Land Office, March
(I. H. L.) 15, 1897. (W. M. W.)
On the 7th day of January, 1897, your office rejected the application^
of the State of Louisiana for indemnity under the acts of March 2^
1856 (10 Stat., 634), and March 3, 1857 (11 Stat., 251), for lands sold by
the United States government after the date of the swamp land grants
of March 2, 1849 (9 Stat., 352), and September 28, 1850 (9 Stat., 519)»
and prior to the said acts of March 2, 1855, and March 3, 1857. The^
lands in controversy are embraced in twelve lists, numbered from 14 to
25, of alleged swamp lands as a basis for the cash indemnity claimed.
These lists were filed in your office, by the agents for the State of
Louisiana, on various dates from December 2, 1885, to January 16, 189 U
These lists were not submitted to tlie United States surveyor-general
for the State of Louisiana for his action, as required by the regulations
232 DECI8I0KS RELATING TO THE PUBLIC LANDS.
issued under the grantiug act to said State. Said regulations required
a personal examination to be made of alleged swamp lands under the
direction of the surveyor-general by experienced and faithful deputies;
the work to be doue to his satisfaction; and
lists of the land falling to the State under the law will be made oat by the agent
for the State and certified to you by him, and, if satisfied of the correctness of the
lists, you will so certify and transmit them to this ofiBce.
See instructions to the surveyor-general of Louisiana, dated April
18, 1850, Vol. 1, General Land Offiee Record, pp. 46 to 50, inclusive.
The lists under consideration were filed in your office, and the only
evidence submitted by the State, in support of the allegation that the
lands were of the character contemplated by the swamp land grant, is
the certificate of the State agent, stating that on examination of the
field notes of sarvey, the lands appear to have been swamp land. The
certificate does not state that tlie tracts were swamp or overflowed
lands at the date of the grant.
The number of tracts involved in your office decision appealed trom
is about eight hundred and sixty; the great bulk of them were sur-
veyed long before the swamp grant to the State was made; some were
surveyed as early as 1807, and many of them during the years 1824,
1828, and 1830. Said lists, except No. 24 and No. 25, were examined in
your office, and between January 15, 1886, and May 9, 1888, the State
was allowed — on the bases of the' tracts found to have been swamp
lands at the date of the grant-— on lands embraced in said lists, cash
indemnity to the amount of $49,371.07, and land indemnity to the
amount of 29,214.25 acres. (See Land Office report for 1891, p. 209.)
No formal action appears to have been taken, at the time said indem-
nity was allowed, on the tracts found to have been nonswampy or
doubtful in character.
Selections in the several townships embraced in these lists had been
made and reported to your office by the surveyor-general some thirty
years before the State agents filed the claim embraced in these lists.
The lands for which indemnity is asked were sold and patented, and
at the dates patents issued there were no conflicting claims under the
swamp-land grant of record.
Your office held that the issuance of patents, under the existing cir-
cumstances, raised a presumption against the swampy character of the
land at the date of the grant; and that you
do not feel jastiileil in allowing indemnity for said lands under the acts of 1855 and
1857, except upon the clearest proof that said lands were swamp and overflowed at
the date of the grant.
The State appeals.
»
The appeal is based upon the claim that the showing made is suffi-
cient to entitle the State to the indemnity claimed under the acts of
March 2, 1855 (10 Stat., 634), and March 2, 1857 (11 Stat., 251). If it
DECISIONS RELATING TO THE PUBLIC LANDS. 233
be conceded that said acts apply to the State of Louisiana, the conten-
tiou she makes is not tenable, in the light of the facts hereinbefore
stated.
The swampy character of the lands forming the bases for indemnity
should be shown in the same way and by evidence of the same character
as was required to entitle the State to lands under its grant. The
second section of the act of 1855 requires
due proof, by the authorized agent of the State or States, before the Commissioner
of the General Laud Office, that any of the lands purchased were swamp lands,
within the true intent and meaning of the act aforesaid, etc.
There is absolutely no proof offered by the agent of the State in sup-
port of these claims. There is no attempt made to conform to the pro-
visions of the act of 1849 or the regulations thereunder respecting the
character of the lands claimed as swamp lands. These claims, except
lists yos. 24 and 25, have been acted on by the Department adversely
to the claim of the State; and the lands included in lists Nos. 24 and
25 have been found by your office not to be swampy in character, and
there is no sufficient evidence before the Department to warrant a
reversal of your office decision as to lists Nos. 24 and 25. As to lands
included in the other lists, they were passed upon adversely to the
State when they were acted on and in part allowed. The failure to
formally reject such as were not allowed can avail the State nothing
now, for it necessarily followed that favorable action on a part of the
lands in such list or lists included negative action on the remainder of
the tracts included therein. And now, after the lapse of from five to
ten years, the State can not in reason be permitted to say that said
tiacts have never been acted on. As to all these lists, except Nos. 24
and 25, the action heretofore had was final and the doctrine of res
judicata applies to them.
In view of the great importance to the government, as well as the
State, of the questions presented in this claim, it has been deemed
proper to examine with care the several acts of Congress on the subject
of granting swamp land indemnity.
This claim is based upon the act of March 2, 1855. The first ques-
tion, therefore, to determine is, whether said act has any application to
the State of Louisiana, t. e., whether said State is now, or ever was,
entitled to any indemnity in cash or in land under said act.
In order to determine this question, it is necessary to refer to the
acts of Congress granting swamp lands to the State of Louisiana, the
State of Arkansas, and the other States.
The act of March 2, 1840 (9 Stat, 352), was entitled : <'An Act to aid
the State of Louisiana in draining the swamp lands therein," and
provided :
That to aid the State of Louisiana in constracting tbe necessary levees and drains
to reclaim the swamp and overflowed Innds therein, the whole of those swamp and
overflowed Innds, which may be or are found unfit for cultivation, shall be, and the
same are hereby, granted to that State.
234 DECISIONS RELATING TO THE PUBLIC LANDS.
Sec. 2. And he it further enacted, That as soon as the Secretary of the Treasmy
shall he advised, by the goTernor of Louisiana, that that State has made the neces-
sary preparation to defray the expenses thereof, he shall cause a personal examina-
tion to be made, under the direction of the surveyor-general thereof, by experienced
and faithful deputies, of all the swamp lands therein which are subject to overflow
and unfit for cultiTation ; and a list of the same to be made oat, and certified by the
dep'.tties and surveyor-general, to the Secretary of the Treasury, who shall approve
the same, so far as they are not claimed or held by individuals; and on that approval,
the fee simple to said lands shall vest in the said State of Louisiana, subject to the
disposal of the legislature thereof: Providedf however. That the proceeds of said lands
shall be applied exclusively, as far a8 necessary, to the construction of the levees and
drains aforesaid.
Sec. 3. And he it further enacted. That in making out a list of these swamp lands,
subject to overflow and unfit for cultivation, all legal subdivisions, the greater part
of which is of that character, shall be included in said list; but when the gpreater
part of a subdivision is not of that character, the whole of it shall be excluded
therefrom : Provided, however, That the provisions of this act shall not apply to any
lands fronting on rivers, creeks, bayous, water courses, etc., which have been sur-
veyed into lots or tracts under the acts of third March, eighteen hundred and eleven,
and twenty-fourth May, eighteen hundred and twenty-four : And provided further,
That the United States shall in no manner be held liable for any expense incurred in
selecting these lands and making out the lists thereof, or for making any surveys
that may be required to carrj" out the provisions of this act.
The act of September 28, 1850 (9 Stat., 519), was entitled: "An Act
to enable the State of Arkansas and other States to reclaim the ^ swamp
lands' within their limits," and provided:
That to enable the State of Arkansas to construct the necessary levees and drains
to reclaim tbe swamp and overflowed lands therein, the whole of those swamp and
overflowed lands, made unfit thereby for cultivation, which shall remain unsold at
the passage of this act, shall be, and the same are hereby, granted to said State.
Sfx. 2. And he it further enacted, That it shall be the duty of the Secretary of the
Interior, as soon as may be practicable after the passage of this act» to make out an
accurate list and plats of the lands described as aforesaid, and transmit the same to
the governor of the State of Arkansas, and, at the request of said governor, cause
a puteut to be issued to the State therefor ; and on that patent, the fee simple to said
lands shall vest in the said State of Arkansas, subject to the disposal of the legisla
ture thereof: Provided, however, That the proceeds of said lands, whether f^om sale
or by direct appropriation in kind, shall be applied, exclusively, as far as necessary,
to the purpose of reclaiming said lands by means of the levees and drains aforesaitt
Sec. 3. And he it further enacted. That in making out a list and plats of the laud
aforesaid, all legal subdivisions, the greater part of which is ''wet and unfit for cul-
tivation,''shall be included in said list and plats; but when the greater part of a
subdivision is not of that character, the whole of it shall be excluded therefrom.
Sec 4. And he it further enacted, That the provisions of this act be extended to, and
their benefits be conferred upon, each of the other States of the Union in which such
swamp and overflowed lands, known as (and) doHignated as aforesaid, may be
situated.
The act of March 2, 1855 (10 Stat., 034) was entitled: <' An Act for
the relief of purchasers and locators of swamp and overflowed lands,"
and provided :
That the President of the United States cause patents to be issued, as soon as prac-
ticable, to the purchaser or purchasers, locator or locators, who have made entries
of the public lands, claimed as swamp lands, either with cash, or with land was
DECISIONS EELATIKa TO THE PUBLIC LANDS. 235
rsiiits, or -with scrip, prior to the issue of patents to the State or States, as provided
lor by the second section of the net approved September twenty* -eight, eighteen
handred and fifty, entitled, ^* An net to enable the State of Arkansas and other
States to reclaim the swamp landH within their limits/' any decision of the Secretary
of the Interior, or other officer of the government of the United States, to the con-
trary notwithstanding: Provided, That iu nil cases where any State, through its con-
stituted authorities, may have sold or disponed of any tract or tracts of said land to
any individual or iudividuulH prior to the eutry, sale, or location of the same, under
tlie pre-emption or other laws of the United States, no patent shall be issued by the
President for such tract or tracts of land, until such State, through its constituted
anthorities, shall release its claim thereto, iu such form as shall be prescribed by the
Secretary of the Interior: And provided farther, That if such State shall not, within
ninety days from the passage of this act, through its constituted authorities, return
to the General Land Office of the United States a list of nil the lands sold as afore-
said, together with the dates of such sale, and the names of the purchasers, the
patents shall be issued immediately thereafter, ns directed in the foregoing section.
Sec. 2. And he it further enacted, That upon due proof, by the authorized agent of
the State or States before the Commissioner of the General Land Office, that any of
the lands pnrchased were swamp lands, within the true intent and meaning of the
act aforesaid, the purchase money shall be paid over to the said State or States ; and
where the lands have been located by warrant or scrip, the said State or States
shall be authorized to locate a quantity of like amount, upon any of the public
lauds subject to entry, at one dollar and a quarter per acre, or less, and patents shall
issue therefor, upon the terms and conditions enumerated in the act aforesaid : Pro-
Tided, hotcerer, That the said decisions of the Commissioner of the General Land Office
shall be approved by the Secretary of the Interior.
The act of March 3, 1857 (11 Stat, 251), provided:
That the selection of swamp and overflowed lands granted to the several States
hy the act of Congress, approved September twenty-eight, eighteen hundred and
fifty, entitled ''An act to enable the State of Arkansas and other States to reclaim
the swamp lands within their limits,*' and the act of the second of March, eighteen
handred and forty-nine, entitled '*An act to aid the State of Louisiana in draining
the swamp lands therein," heretofore made and reported to the Commissioner of the
General Land Office, so far as the same shall remain vacant and unappropriated, and
not interfered with by an actual settlement under any existing law of the United
States, be and the same are hereby confirmed, and nhall be approved and patented
to the said several States, in conformity with the provisions of the act aforesaid, as
soon as may be practicable after the passage of this law : Prorided, hotverei', That
nothing in this act contained shall interfere with the provisions of the act of Con-
gress entitled ''An act for the relief of purchasers and locators of swamp and over-
flowed lands," approved March the second, eighteen hundred and fifty- five, which
shall be and is hereby continued in force, and extended to all entries and locations
of lands claimed as swamp lands made since its passage.
To save space and repetition, these several acts will hereafter be
referred to, respectively, as the Louisiana act, the Arkansas act, the
indemnity act, and the confirmatory act.
Iu construing a statute a court may properly refer to the conditions
of persons and things to be ailected by such act, as well as the state of
things as they appeared to the legislature at the time the enactment
was considered. See Aldridge v. Williams, 3 How., 9; United States
p. Union Pacific E. E. Co., 01 U. S., 72; District of Columbia v. Wash-
ington Market Company, 108 U. S., 243 ; Piatt v. Union Pacific E. E.
Co., 99 U. S., 48.
236 DECISIONS RELATING TO THE PUDLIC LANDS.
This has been applied by the Department. See Towiisite of EiBg-
fisher r. Wood, 11 L. D., 330; Grandin Bros, et al^ 18 L. D., 459.
Applying this rule to the Louisiana act, at the time it was passed the
southern jwrtion of the State was largely, if not principally, low, flat,
swampy, marshy iu character; in some instances, esjiecially towards
the inouth of the Mississippi river, much the greater part of the land,
a little back from the rivers, lakes and bayous, was in fact lower than
the beds of such streams, or other bodies of water. From the northern
boundary of the State to its center there was a strip of land from fifty
to one hundred miles wide on the west side of the Mississippi river,
which lands were likewise low, swampy and marshy in character. It
was stated in the House of Representatives, by Mr. Bowlin, when the
Louisiana act was under consideration: ^^that the precise amount of
swamp lands in the State was 5,429,000 acres, as reported by the sur-
veyors." See Congressional Globe, 30th Congress, 2d Session, p. 591.
On the day the act passed the House, Mr. Harmanson, a representative
from the State of Louisiana, stated during the debate, among other
things:
That the State of Louisiana, and the ciiizenB of that State, had constructed about
fourteen hundred miles of levee, to keep out the waters of tlie river from the low
lands. This work had been done nt a cost of eight miUions of dollars, as estimated
by the committee on public lands; but which, in fact, had cost at least twenty mil-
lions. Whnt had been accomplished by that workf Three millions five hundred
thousand acres of land, which were before unfit fur cultivation, had been reclaimed
for the benefit of the general government. This vast amount of rich land, so
reclaimed by Louisiana levees, had been sold, and the government had pocketed
their proceeds.
The report of the Commissioner of the General Land Office stat«d that there were
two millions two hundred thousand acres of swamp lands now iu Louisiana, and he
(Mr. H.) believed that one million of acres of these lands could be reclaimed. It
would require five miUions of dollars to accomplish this work, and the State of Loui-
siana was obliged to do this work, because it was required by the health of the
country But the State of Louisiana was compelled by the force of cir-
cumstances to reclaim these lands ; and the on!}' question was, whether the general
government would give them to tho Stated by way of compensation fur the cost of
reclaiming them Would the gentleman refuse to be just to Louisiana, for
fenrof receiving injustice at the hands of other States f ....
He urged again the consideration of the claim of his State upon the general gov-
emraent, because she had already reclaimed three and a half millions of acres of the
public lands; and he claimed the passage of the bill as a debt due from the general
government.
Mr. Brodhead said he had but a word to say in explanation of the bill. In 1829
the officers of the government reported 5,429,260 acres as the whole amount of the
great swamp lands in the State of Louisiana. On the IGth of April last, the Com-
missioner of the General Land Office reported that these swamp lands, at that time,
had been reduced to 2,246,075 acres. It wus apparent, therefore, that, since the year
1829, the State and people of Louisiana, by the levees which they had thrown up,
had reclaimed and enabled the general government to throw into the market very
large bodies of rich nnd valuable land
This large body of government land had been brought into market since the year
1829 at the expense of the people of Lonisinn.-i.
See Cong. Globe (No. 92), 30th Cong. 2d Sess. p. 592.
DECISIONS RELATING TO THE PUBLIC LANDS. 237.
By an act of the legislature of Looisiaua, of February 7, 1829 (see
Session laws for that year, p. 76), it was provided by section 1:
That thronghont all the portion of the State watered by the Mississippi and the
bayous running to and from the same which are settled, where levees are necessary
to confine the waters of that river, and to shelter the inhabitants against the inunda-
tioDB, the said levees shall be made by the riparian proprietors in the proportions
and at the time hereinafter prescribed.
The second section prescribes the height and character of the levees.
Other sections of the act specifically deal with the subject of levees, and
define the duties of the owners of lands on the banks of the Mississippi
and bayous running to and from it, respecting the making of levees,
roads, etc. These provisions were carried forward and are to be found
in the Bevised Statutes of said State. See Eevised Statutes Louisiana,
1856, p. 481 et seq.
With these aids, and the plain language of the act itself, there is no
difficulty in arriving at the jmrpose and intention of Congress in pass-
ing it.
The act was clearly a grant in presenti, giving to the State '-the
whole of those swamp and overflowed lands,'' which were at the date of
the act unfit for cultivation. The words used, <^ shall be, and the same
are hereby, granted to that State," clearly import a present grant, and
had the eftect of a conveyance at the date of the act; thereafter the
only thing that was required to be done was the identification of the
land. The second section provided the manner that such identification
shonld be accomplished, and when accomplished << the fee simple to said
lands shall vest in said State of Louisiana;" no patent was required or
necessary to complete the State's title to the lands granted. The first
proviso in section 3 of the act carves out of the grant '*any lands front-
ing on rivers, creeks, bayous, water courses," etc., for the very reason
that Congress must have understood that all such lands had been
reclaimed either by the riparian owners or the State under State laws;
and, therefore, such lands were not in fact swamp or overflowed at the
date of the act.
The Arkansas act granted to that State ^^the whole of those swamp
and overflowed lands made unfit thereby for cultivation," which
remained unsold at the date said act was passed. It was clearly a
grant inpresenti, taking efiect as soon as the lands could be identified
by listing and platting as specified in the act. It differed from the
Loaisiana actin that the Secretary o'f the Interior was required to cause
to be issued a patent to the State for said lands; ^*and on that patent,
the fee simple to said lands shall vest in the said State of Arkan^^as,"
and in other respects. But in this opinion it is not material to discuss
the provisions of said act, except the 4th section, which extended the
provisions of said act to, and conferred its benefits upon, **each of the
other States of the Union in which such swamp and overflowed lands,
known as (and) designated as aforesaid, may be situated." The right
238 DECISIONS RELATING TO THE PUBLIC LANDS.
of Louisiana to auy swamp land indemnity depends entirely upon
whether this section applies to said State, fortheindemuity actof 1855,
under which Louisiana makes the claim herein, specifically refers to the
Arkansas act, and clearly and distinctly confines the indemnity it pro-
vides to such States only as were included in the Arkansas act In
this particular the language of the indemnity act is so plain and une-
quivocal that it can not bo misunderstood.
Tlie confirmatory act of 1857 referred to the Louisiana and Arkansas
acts, and simply confirmed to the several States the swamp and over-
flowed lands theretofore selected and reported to the Commissioner of
the Genera] Land Office, so far as the lands remained vacant and
unappropriated, and when such selections did not interfere with actual
settlement claims under any existing law of the United States. The
proviso to said act continued in force and extended the indemnity act
to all entries and locations of lauds claimed as swamp lands since its
passage. The effect of this proviso was to simply keep in force the
indemnity act of 1855 as to the subject matter as applied to the States
included therein.
Adverting to the 4th section of the Arkansas act, for the purpose of
determining whether or not it embraced tlie State of Louisiana, it
seems proper to refer to the construction heretofore placed upon it by
the Department.
On December 23, 1851, Secretary Stuart held that the Louisiana and
Arkansas acts were not to be construed in pari materia^ and that:
The act of March, 1849, has reference to Louisiana alone, and requires that the
selections should be made under the direction of the surveyor-general, at the expense
of tlie State of Louisiana entirely, and after the governor of that State should have
informed the Secretary of the Treasury that the necessary preparations to defray
those expenses had been made by the State. The provision in the act of September,
1850, is entirely different; for it makes it the duty of the Secretary of the Interior to
muke out lists and plats of the lands thereby granted, and to transmit the same to
the governors of the States. See 1 Lester, 549, 550.
On January 14, 1856, Secretary McClelland held that:
The act of 1849 is not'merged in the act of 1850, but each is to be executed accord-
ing to its special tenor and provisions, the latter being merely cumulative, and
embracing land which was excepted from the operation of the former. lb. 554.
On February 12, 1886, your ofSce refused to allow the State of Lou-
isiana indemnity for swamp lands sold in said State between March 2,
1840, and September 28, 1850. Oji appeal to the Department doubts
arose as to the proper construction of the swamp land grants of 1849
and 1850, and also theindemnity actof 1855 and the confirmatory act of
1857, and the matter was referred to the Attorney General for his opin-
ion. On January 11, 1887, Attorney General Garland submitted his
opinion, in which, after referring to the Louisiana and Arkansas acts,
he said :
This last act was substantially a re-enactment of the act of the 2d of March, 1849,
so far as Louisiana was concerned, with an extension of the grant in that act so as
DECISIONS EELATINO TO THE PUBLIC LANDS. 239
to inclnde the lands which had been excluded by the exception in tl^e former enact-
ment, tk» to which it was a new and sabstantive grant on the 28th of September, 1850.
Both of these act<8 were grants in prcpsenii by which, from their respective dates, the
title to the lands therein described became vested in the several States
These definitions of swamp lands in the acts of 1849 and 1850 are substantially the
same. Therefore, all swamp lauds granted by the act of 1849 would be within the
intent and meaning of the words '* swamp lands " in the act of 1850. The considera-
tion for the grants in the acts of 1849 and 1850 was the same. The errors committed
by the officers of the United States against both grantees were the same in effect.
The wrongs done to both classes of purchasers were the same.
Mr. Garland also refers to an opinion rendered by Attorney General
Speed (11 Opins., 472, and 3 L. D., p. 396) as supjwrting his views. See
Attorney General Garland's opinion, 5 L. D,, 464, et seq.
By reference to Attorney General Speed's opinion fll Opins., 467 to
473, inclusive), it will be observed that said opinion related exclusively
to the right of the State of Iowa to swamp land indemnity, and involved
tlie construction of the acts of March 2, 1855, and March 3, 1857.
1 here was no question but what Iowa was included in the Arkansas
act of 1850, The only bearing General Speed's opinion could possibly
have in determining this case is found in that portion wherein he dis-
cusses the proviso in the confirmatory act of 1857. In so far as he
construed said proviso he seems to have held that it only amounted to
a legislative declaration that the act of 1855 is " hereby re-enacted,''
having the same ettev.t as if it had been in terms repeated and re-en-
acted on tho third of March, 1857.
The State of Louisiana (3 L. D., 396), referred to by Attorney Gen-
eral Garland, was a fonnal afQrmanee by Secretary Teller of a judg-
ment of Commissioner McFarland, in which the Commissioner held
that the State of Louisiana was entitled to indemnity. The decision
of the Secretary does not discuss the question as to the rights of the
iState. He simply stated that he saw no reason for excluding the State
of Louisiana from the benefits of the acts of 1855 and 1857. The Com-
missioner's decision is set out at length, in which it is said, inter aliaj
that:
It i8 trae that the act of 1849 is not specially mentioned in the act of Sept<embeT
28, 1850, or of March 2, 1855, bnt it is to he presumed from the language of these
»ct8, in connection with that used in the act of March 3, 1857, which includes Lou-
ibiana, that it was the intention of Congress to confer the benefits contained in the
acts of 1850 and 1855 to all the States over which the swamp land grant had been
extended, if not, why was Louisiana included in the confirmatory act of March 3,
1857, which act places her on an equal footing with the other States.
It 18 claimed by the State that the act of February 20, 1811 (2 Stat,
611-043), has no bearing on the questions involved in the case. The
5th se<;tion of said act provided :
That five per centum of the net proceeds of the sales of lands of the United States,
after the first day of January, shall be applied to laying out and constructing pub-
he roads and levees in the said State, as the legislature thereof may direct.
Section 1 of the act of September 4, 1841 (5 Stat., 453), provided that
240 DECISIONS RELATING TO THE PUBLIC LANDS.
the States of Ohio, Indiana, Illinois, Alabama, Missouri, ^Mississippi,
Louisiana, Arkansas, and Michigan -were to be ])aid ten per cent of the
net proceeds of the sales of public lands therein, irithout in any man-
ner diminishing the sam theretofore granted to any of said States.
Section 2 of said act provided that, after deducting said amount and
all expenses connected with the survey, sale, etc., of said lands, sold
after the 21st day of December, 1841, the net proceeds were to be
divided among the twenty-six States of the Union, the District of Co-
lumbia, and the Territories of Wisconsin, Iowa and Florida, according
to thi-ir respective population, as shown by the census of 1840. By tlie
8th section of said net each of the States named in the first section was
granted 500,000 acres of public lands, and the same amount for each
new State thereafter admitted into the Union. Section 9 required the
proceeds of the lands granted by section 8 to be faithfully applied to
objects of internal improvements within the respective States, namely:
*'Road8, railways, bridges, canals, and improvement of water-courses,
and draining of swamps."
While it may be true that these acts do not directly bear on the
material questions involved, yet there can be no question but what
they may properly be considered as aids in arriving at the purpose of
Congress in passing the Louisiana act of 1849.
In the appeal great stress is laid upon the opinion of Assistant At-
torney General McCammon, in State of Ohio (3 L. D., 571), and it is
claimed by the State that it was upon the authority of said opinion that
the first indemnity ever allowed the State of Louisiana was on Decem-
ber 28, 1885. Said opinion refers exclusively to the Arkansas act, the
acts of 1855 and 1S57 -, it makes no reference to the Louisiana act, and
can not be accepted as an authority in determining the matter herein
involved.
The Louisiana act was a special act in that it only applied to the State
of Louisiana. It granted to said State all the swamplands therein,
except lands bordering on streams, rivers, and bayous, which it is clear,
in view of the debates in Congress, and the Statutes of Louisiana, here-
inbefore referred to, were not understood to be or regarded as swamp
lands. The exception seems to have been made for the very purpose of
protecting the United States from claims thereafter made by the State
for the lands embraced in its terms. Said exception refers to lands
surveyed under the act of 1811, which gave to the State five per cent
of the proceeds of their sale for the very purpose of reclaiming them by
draining and levees. This construction accords with sound reason,
and under it every part of the act is harmonized. Said act was special
and local, in that it only applied to the State of Louisiana. The United
States having granted, in contemplation of law, all the swamp lands in
Louisiana, there was no swamp land in that State when the Arkansas
act was passed, and in the very nature of things the Arkansas act did
not apply to any lands in the State of Louisiana. The Arkansas act
DECISIONS RELATING TO THE PUBLIC LANDS. 24t
was a general act. In construing said acts, the maxim of generalim
^cialibus non derogant applies. Endlich on the Interpretation of
Statutes, section .223, states it as follows :
It is bat a parttcalar applicatiou of the general presumption against an intention
to alter the law beyond the immediate scope of the statute, to say that a general
act is to be constrneil ss not repealing a particular one, that is, one directed toward
a 9pecial object or $pecial class of objects It is usually presumed to have only
general eaees in view, and not particular cases which have been already otherwise
provided for by the special act Having already given its attention to th&
particular subject, and provided for it, the legislature is reasonably presumed net
to intend to alfer that special provision by a subsequent general enactment, unless
that intention is manifested in explicit language or there be something which shows
tliat the attention of the Legislature had been turned to the special act, and that
the general one was intended to embrace the special cases within the previous one;
or Bomething in the nature of the general one making it unlikely that an exception
was intended as regards the special act. The general statute is read as silently
excluding f^om its operation the cases which have been provided for by the special
one.
Applying this rule to the 4th section of the Arkansas act, it is per-
fectly clear that Congress did not intend that said section should apply
to the State of Louisiana. The whole subject of swamp lands iu that
State had been disposed of in the prior special act, and therefore the
Arkansas act should be read as silently exclading from its operation
the State of Louisiana. This conclusion must necessarily result in
denying the right of Louisiana to any indemnity, for, as before sug-*
gested, the indemnity act of 185.> specifically limits its provisions to
such States as were included in the Arkansas act.
The confirmatory act of 1857 extended the act of 1856 and confirmed
selections of swamp lands made by all the States, and in clear lan-
guage included Louisiana in its confirmatory provisions, but it does
not follow that in the matter of indemnity it had any reference to said
State. Louisiana under the act of 1849, in common with Arkansas and
other States under the Arkansas act, had made selections under the
respective laws granting swamp land, and Oongress by the act of 1857
confirmed said selections. Sach confirmation had nothing to do with
mdemnity; it dealt exclusively with State selections. Thefa-ct that
the State of Louisiana is referred to specifically in the matter of selec-
tions in the act of 1857, and not so referred to in the indemnity act, is
an additional reason for believing that Congress did not intend to
include Louisiana in the matter of indemnity.
Taking into consideration the conditions that existed in the State of
Lonisiana, as shown by the debates in Congress and the statutes of that
State, at the time the Lonsiana act was passed, and the nature and
character of the act itself, there seems to be no escape from the conclu-
sion that Congress intended by said act to convey to said State all the
swamp lands in said State, and thereby finally and forever settle every
question in respect to swamp lands, so far as that particular State was
10671— VOL 24 16
242 DECI810N8 RELATING TO THE PUBLIC LANDS.
concerned; tliat the lands excepted in said act were clearly understood
hot to be swamp land in character, but redalmedy in so far as they had
been swampy.
It is equally clear, in the light of reason and the authorities, that said
State was not intended to be included in the Arkansas act, nor in the
indemnity act of 1855; that the act of 1857 only operated in said State
to confirm to her the selections theretofore made under her grant
It follows that the State's application must be, and it is hereby,
rejected and dismissed.
OKLAHOMA LAND^-SECTIOX 16, ACT OF MABCH 8, 1891.
BoNNETT V. Jones (On Review).
The proTifiion in section 16, act of March 3, 1891 (26 Stat., 989), that the landg
specified therein shall be opened to settlement '* under the proyisions of the
homestead and townsite laws," shonid be construed to mean that said lands are
to be opened to settlement under the homestead and townsite laws goTeming the
disposition of lands in Oklahoma, and not operating to repeal the provision con-
tained in section 20, act of May 2, 1890, disqualifying as ' homesteaders all per-
sons owning one hundred and sixty acres in any State or Territory, and applicable
to all lands in Oklahoma.
Secretary Bliss to the Commissioner of the General Land Office^ March
(I. H. L.) i5, 1897. (E. M. R.)
This case involves the SE. \ of Sec. 6, T. 16 K, R. 7 W., Kingfisher
land district, Oklahoma Territory, and is before the Department
upon motion for review, by James Jones, of departmental decision of
December 23, 1896 (23 L. D., 547), in which was awarded the land in
controversy to William J. Bonnett. That decision held that Jones was
the owner of 160 acres of land at the time of the hearing in the case,
and that under the law snch ownership deprived him of the right of
entry opon land situated in Oklahoma Territory.
By act of Congress of May 2, 1890 (26 Stat., 81, page 91 thereof, sec-
tion 20), it is provided :
And no person who shall at the time he seized in fee simple of one hundred and
sixty acres of land in any State or Territory, shall hereafter he entitled to enter land
in said Territory of Oklahoma.
By act of Congress of Marob 3, 1891 (26 Stat., 989, page 1026 thereof,
section 16), it is provided: '
That whenever any of the lands acquired hy either of the three foregoing agree-
ments respecting lands in the Indian or Oklahoma Territory shall by operation of
law or proclamation of the President of the United States be open to settlement
they shall be disposed of to actual settlers only, under the provisions of the home
stead and townsite laws (except section twenty-three hundred and one of the
Be vised Statutes of the United States which shall not apply).
By act of Congress of March 3, 1891 (26 Stat., 1095, page 1098 thereof;
nnder the head of section 5), it is provided, in the amendment of sec-
DECISIONS RELATING TO THE PUBLIC LANDS, 24?
tion 2289 of the Bevised Statutes, after setting forth the qualifications
of entry —
bnt no person who is the proprietor of more than one hundred and sixty acres of
h&nd in any State or Territory, shall acquire any right nnder the homestead law.
In the decision sought to be reviewed it was held that the act last
referred to could not under any construction of law known to the
courts, be held to aftect the class of lands mentioned in the act of May
2, 1890 {supra)j because the one is general and the other special.
Counsel for the i>etitioner contends that the act of March 3, 1891
(2G Stat.. 989), does serve to except these lands from the abridgment
of the right of entry contained in the act of May 2, 1890, because it
was nnder one of the three agreements mentioned in this act that the
Cheyenne and Arapahoe lands were thrown oi)en to settlement, and
under section 16 {supra) saiil lands were thrown open to settlement
nuder the provisions of the general homestead law.
Section 20 of the act of May 2, 1890, as has already been shown,
contains an absolute and unqualified prohibition to any one who owned
160 acres of land in any State or Territory from thereafter acquiring
title under the homestead law to any land in the Territory of Oklahoma.
That was a general prohibition applicable to all lands within the Terri-
tory of Oklahoma. And as the Cheyenne and Arapahoe reservation
is now a portion of that Territory, it is applicable to lands which were
formerly in such reservation, as much as to any other lands within its
territory.
Bepeals by implication are not favored by the courts; and a subse-
quent act will not be held to repeal the provisions of a former act unless
necessitated by the clear intent of Congress; in such instances as where
there is a clear conflict between the meaning and scope of the acts.
No snch necessity is here presented. Both acts can stand.
The act of March 3, 1891, setting forth that these lands are opened
to settlement << under the provisions of the homestead and townsite
laws,^ can be and should be construed to mean that the land within
the Cheyenne and Arapahoe reservation is open to settlement under
the homestead and townsite laws pertaining to the Territory of Okla-
homa. In this manner both acts are given force and effect without
such construction being inharmonious with the true nieanlng of both.
The motion for review is therefore denied.
244 DECISIONS BELATING TO THE PUBLIC LANDS.
PRACTICE— CERTIORAKI— APPEAL.
Sbs r. See.
An application for a writ of certiorari will be denied where the applicant has not
previously sought relief through appeal, as provided in the Rules of Practice.
Secretary Bliss to the Commissioner of the General Land Office, March
(L H. L.) 15y 1897. (J. L. McC.)
Clay See has filed an application for an order directing joar office
to transmit to the Department the record in the case of Frank Y. S«e
against said Clay See, in tbe matter of the simnltaneons applications
of the parties named to enter certain lands — the particular tract in
conflict being the N W. i of the SW. J of Sec. 34, T, 6 K, B. 20 W.,
Missoula land district, Montana.
The applicant complains of the decision of your office, dated October
22, 189G, a copy of which is filed with his application.
The local officers had recommended that Clay See's homestead entry
be canceled in so far as it embraced the forty acres in controversy, aud
that Frank Y. See be permitted to file thereon.
Clay See filed an appeal to your office, alleging that it was error on
the part of the local officers —
1. To recommend the homestead entry of Clay be canceled as to the NW. ^ of the
SW. i of Sec. 34, T. 5 N., R. 20 W., and that Frank V. See be allowed to file upon
the same ;
2. Not to have recommended that said homestead entry remain intact, and that
said contest of Frank V. See be dismissed.
Amotion was made to dismiss said appeal, on the ground that it failed
to set forth specific points of exception to the decision appealed from^
as required by the Eules of Practice.
This motion was granted; and your office, proceeding to consider tlie
case under Bule 48 of Practice, held the decision of the local officers
final as to facts, concurred with tbem as to. their conclusions of law,
and directed the cancellation of Clay See's entry as to the fort^' acres
in conflict — ^in case the plaintiff applied to perfect his application there-
for into an entry.
It does not appear from anything in the application or the accom-
panying papers that Clay See has ever filed an appeal from said adverse
decisiou of your office.
The right of proceeding by certiorari was instituted as a remedy for
any injustice done by your office where the right of appeal therefrom
does not exist (Florida Navigation Co. v. Miller, 3 L. D., 324-^; George
K. Bradford, 4 L. D., 269; and many cases since); or where appeal has
been filed but the right denied by your office (Cedar Hill Mining Co.,
1 L. D., 628, and many cases since). But the Department will not
countenance, upon the grounds appearing by this record, a resort to
the extraordinary remedy of certiorari where the applicant has not
DECISIONS DELATING TO THE PUBLIC LANDS. 245
previously sought relief through the onliuary method provided by the
Rules of Practice, — to wit, by appeal (Smith v, Noble, 11 L. D., 668;
Spratt r. Edwards, Id L. D., 290; and many other cases).
The application is denied.
JUI>GMEXT— PrNT>ING OF FACTS— CORRECTION OF ERROR.
Florida Railway and Navigation Co. v. Hawlet.
On the application of a party in interest the Department may reform ite finding of
facts in a previous decision, so that it may be in accord with the record in ihe
case, ^vhere snch action seems requisite for the protection of the applicant,
though the judgment as rendered may not be affected thereby .^
Secretary Bliss to the Commissioner of the General Land Office^ March
(I. H. L.) 15, 1897. (F. W. 0.)
A motion has been filed on behalf of Chauncey I. Hawley to correct
an alleged error in the finding of facts contained in departmental deci-
sion of March 21, 1894 (18 L. D., 236). In said decision it was held
(syllabus) :
A tract of land withdrawn for indemnity purposes under a rftilroad grant, and
included in a descriptive list of lands announced for public sale nnder a subsequent
proclamation of the President, that excepts therefrom all lao^ '' reserved for rail-
road purposes'^ can not be regarded as '^ offered"; and a ]if irate cash entry of a
tract occupyin<^ such status is void, and not subject to equilAble oonflrmation.
Said decision was upon a motion filed for a review of departmental
decision of May 20, 1889 (not reported), in which it was held that the
private cash entry of Chauncey I. Hawley, made April 27, 1882, for
certain tracts in the Gainesville land district, Florida, might be sub-
mitted to the board of equitable adjudication for confirmation.
The tracts covered by said entry are within the indemnity limits of
the grant made to the State of Florida by the act of Congress approved
May 17, 185G (IL Stat., 15), to aid in the construction of a railroad from
Amelia Island to Tampa Bay and Cedar Keys. The lands were in a
state of reservation at the date of the allowance of Hawley's entry,
and it was upon this ground that Hawley's entry was held to have
been void and not capable of confirmation. The holding to this effect
will be found in that portion of the opinion reported on pages 240 and
241 of the said land decisions, wherein it was held:
There being no authority to offer the tract in controversy, it must be considered
as having never been offered, and, under the rulings of the court and of the Depart-
ment in the cases above cited, the private cash entry of Hawley was without author-
ity and void and can not be confirmed by the board of ecinitable adjudication.
This would seem to have effectually disposed of any rights under
Hawley's entry; the opinion proceeds, however —
It farther appears that the company applied to select this tract prior to the revo-
cation of the withdrawal, and that the api>Ucatiou was refused because of the entry
246 DECISIONS KELATING TO THE PUBLIC LANDS.
of Hawley. The company appealed from the action of the local officers, rejecting
said list^ bat it was afterwards discovered that the local officers had neglected to
place the selections of record, and yonr office was asked to correct that error, which
was refused.
The finding complained of is that <*the company appealed from the
action of the local officers, rejecting said list."
WhUe the decision was in no wise predicated ai)on this finding^ and
would not be affected by its elimination or change, yet as it is urged
that said finding may prejudice any future rights desired to be asserted
by Hawley in the courts, I have deemed it prox)er to inquire sis to the
correctness of the same, and find from the records of the land office,
gathered from the report made by your office in response to a call from
this Department, that, as a matter of fact, the company did not appeal
from the action of the local officers in refusing to accept its list No. 2,
covering this laud, which list was tendered at the local office Jane 1,
1887. The finding made in said departmental decision, that the com-
pany appealed from the action of the local officers, rejecting its list
covering the tract embraced in Hawley^s purchase, is error and is set
aside.
In answer to the motion it is urged on behalf of the Florida Central
and Peninsular Railroad Company, the present claimant under said
grant, that tbe finding should not be made that the company did not
appeal, without a detailed statement of the several actions taken by
your office and the local officers in lelation to selections on account of
this grant, which it is claimed will show that the selection in question
was simply held in abeyance.
As before stated, the decision of the Department was not predicated
upon, nor influenced by, the finding complained of, which, it is clearly
shown, was an erroneous finding; and the same having b^n set aside,
it seems to be unnecessary to further complicate the record in said
case by any finding of facts not necessary to the conclusion reached in
said opinion.
The motion and accompanying papers are herewith returned for the
files of your of^ice.
REPAYMENT-ASSIGNEE— MORTGAGEB.
California Mortgage Loan and Trust Co.
No right of repayment is acquired hy an assignee whose interest in the land is not
obtained until after the cancellation of the entry.
The right of assignees to repayment is limited to assignees of the land, and does not
extend to one holding an assignment of the claim for the money paid on the entr^*.
A mortgagee is not an a'^signee, within the intent and meaning of the act providing
for repayment, if the mortgage is merely a lien on the land.
On application for repayment by an entryman he mnst show that the land is five
from incumbrance.
Secretary Bliss to the Commissioner of the General Land Office^ March
(L H. L.) 15, 1897, (J. L. McC.)
The California Kortg^gBy Loan and Trust Company has appealed
from the decision of your otiHce, dated November 19^ 1895, denying its
DECISIONS RELATING TO THE PUBLIC LANDS. 247
application for repayment of the purchase money paid by William B,
Stewart for the land embraced in his pre-emption cash entry, 'No. 3640|
for the NE. i of Sec. 32, T. 4 S., E. 1 E., Los Angeles land district,
California.
Said entry was canceled on March 31, 1890, because the laud had
been, by executive order of June 19, 1883, Teserved from entry, for the
benefit of the Mission Indians.
On November 27, 1893, the company above named, claiming as mort-
gagee, applied to have the entry reinstated. The application was
denied by your office, on December 8, 1893; and on appeal the Depart-
ment, on April 18, 1895« affirmed said decision. (See 307 L. and B.,
150.)
Thereupon the company applied for repayment of the purchase
money. With said application the company filed a certified copy of
the receiver's receipt; the affidavit of the vice-president and general
manager of the company, setting forth that said company, on July 28,
1889, loaned to said Stewart the sum of one thousand dollars, receiving
as security for such loan a mortgage on the land; a grant deed, dated
May 4, 1894, from Stewart to tlie company (duly recorded); a quit-
claim deed from the company to the United States; an assignment by
Stewart to the company of all right, title, and interest in the money
paid by him to the United States for the land in controversy; and
other documents.
Tour office held that, inasmuch as the deed from Stewart to the
company was subsequent to the cancellation of the entry, it gave
the company no claim to repayment of the purchase money paid by
Stewart.
It clearly appears that Stewart's entry was "erroneously allowed,^*
within the meaning of Sec. 2 of the act of June 16, 1880 (21 Stat., 287);
the only question for consideration is, whether the repayment should
be made to the California Mortgage, Loan and Trust Company.
It is well settled that no right of repayment is acquired by an
assignee whose interest in the land is not obtained until after the can-
cellation of the entry. ( Adolph Emert, 14 L. D., 101 ; Albert G. Craven,
id., 140; Alpha L. Sparks, 20 L.D., 75.) Also that the right of repay-
ment is restricted to assignees of the land, and does not extend to
persons holding an assignment of the claim for the money paid on the
entry. (Instructions of [N^ovember 2, 1895, 21 L.D., 306.)
The decision of your office correctly held that the showing made by
the company relative to the existence of said mortgage was unsatis-
factory. Such evidence may, however, be hereafter furnished by sup-
plementary proof.
The question then remains for consideration, whether, in case such
satisfactory evidence should be furnished, the company would be
entitled to repayment f
Tbe Department has repeatedly held that where a mortgage is merely
a hen on the land, the mortgagee is not an assignee of the entryman
^48 DECISIONS BELATINO TO THE PUBLIC LANDS.
ifitliin the meaning and intent of the act providing for repayment
(Alonzo W. Graves, 11 L.D., 283) Emma J. Campbell, 15 L.D., 392.)
By the Civil Code of California (Sec. 2920), it is declared that a mort-
gage "is a contract by which specific property is hyiwthecated for the
performance of an act, without the necessity of a change of iK>s8e8sion.''
Sec. 2923: — '*The lien of a mortgage is special, unless 'otherwise
expressly agreed, and is independent of possession." Sec. 2926: — '^ A
mortgage is a lieu upon everything that would pass by a grant of the
property." And Sec*. 2927 declares that a mortgage does not entitle a
mortgagee to possession.
The California Mortgage, Loan and Trust Company not being, under
departmental rulings, an assignee within the meaning of the act of
June 16, 1880, repayment cannot be made to it; and your action in
denying its application is therefore approved.
The title to the land was, at the date of the cancellation of the entry,
in the entryman Stewart, subject only to the lien of the mortgage — ^if
such mortgage in fact existed, as alleged; and in view thereof, repay-
ment, if allowed at all, must be made to him. But before this can be
done he will have to secure a release of the mortgage, by payment,
relinquishment, or otherwise. Upon a proper application by the entry-
man, showing such release, I see no good reason why repayment may
aot be allowed.
OKLiAHOMA L.AKDS-QUAILJFICATIONS OF H09(£ESTEAI>£B.
Mason v. Cromwell.
The limitation in section 20, act of May 2, 1890, of the right to make homestead
entry in Oklahoma, to persons who are not '* seized in fee simple of one hundred
and sixty acres of land/' disqualifies one who owns a ''quarter section/' entered
as snch, though the area of the tract thus owned may fall short of one hundred
and sixty acres hy a small fraction, as shown by the field notes of survey.
A transfer of land owned hy an intending homesteader will not operate to reliere
him ft'om the disqualification imposed by said section, if it appears to have not
been made in good faith, but for the purpose of evading the statutory inhibition.
Secretary Bliss to the Commissioner of the General Land Office, Mareh
(I. H. L.) 15y 1897. (C. J. G.)
The land involved in this controversy is the 8W. J of Sec. 20, T. 23
N"., K. 6 W., Enid land district, Oklahoma.
FuUerton C. Cromwell made homestead entry of the above described
tract on October 27, 1893.
A few days thereafter Calvin F. Mason filed an application to make
homestead entry of said land, alleging settlement thereon October 13,
1893.
A bearing was duly had January 24, 1894, on the issne of prior
settlement.
DECISIONS RELATING TO THE PUBLIC LANDS. 249
The register rendered decision in favor of Mason, finding that he was
the prior settler and a qualified entryman. He therefore recommended
that Cromwell's entry be held for cancellation.
The receiver found in favor of Cromwell, on the ground that Mason
was disqualified to make entry by reason of his ownership of one hun-
dred and sixty acres of land in the State of Kansas. He accordingly
recommended that Cromwell's entry remain iutact.
Both parties appealed, and your office, under date of May 22, 1895,
sustained the decision of the receiver and dismissed the contest. .
Mason has appealed to this Department, and in his said appeal three
propositions are submitted: (1) That he was not the owner of one
hundred and sixty acres of land at the time of his settlement or at the
time Cromwell made settlement. (2) That before making settlement
he had effectually transferred the quarter section of land that he owned
in Kansas. (3) That he was not disqualified and that his entry should
be allowed.
A point is raised in the plaintififs appeal to this Department which
was not discussed in the decisions below or in the briefs of the opposing
counsel, namely, that as the area of the land owned by Mason in the
State of Kansas (NE. J of Sec. 28, T. 9 S., B. 34 W.) contains 159.35
acres, according to the field notes of your office, or less than one hun-
dred and sixty acres, he is not therefore barred from making entry
under section 20 of the act of May 2, 1890 (26 Stat., 81).
It will be necessary for the purposes of this decision to consider this
proposition first, although it is the last one discussed by plaintiff in his
appeal, for the reason if the point is found to be well taken it will
render a consideration of the other features of the case unnecessary.
The language of the act of May 2, 1890, supraj having reference to
this case, is as follows :
and no person who shall at the time be seized in fee simple of a hundred and sixty
acres of land in any State or Territory shall hereafter be entitled to enter land in
said Territory of Oklahoma.
As the plaintiff insists upon a strict and literal construction of the
above statute, it will be necessary to ascertain as far as possible, in
the light of previous legislation, just what meaning Congress intended
to convey by the language employed. While the language of the
statute is to the effect that no person who is the owner of a ^^ hundred
and sixty acres" of land shall be entitled to enter land in Oklahoma
Territory, yet I am inclined to think that it would be a too strict inter-
pretation of that language to say that simply because the plaintiff in
this case happened to be the owner of a small fraction less than a hun-
dred and sixty acres he is therefore not disqualified from making the
entry applied for. The history of legislation on this subject would
seem to indicate that Congress has used the terms ^^ a hundred and
sixty acres" and "quarter-section" interchangeably, and if this be
true the fact that the laud owned by the plaintiff in the State of
250 DECISIONS RELATING TO THE PUBLIC LANDS.
Kansas contained a fraction less than one hundred and sixty acres or
less than a quarter-section, makes no difference; he is barred equally
with the owner of a fuU hundred and sixty acres or a technical quarter-
section.
In the case of Bei\jamin O. Wilkins (2 L. D., 129), the Department
reviewed at length the several statutes pertaining to the subject under
consideration, and held that ^^a ^quarter- section' of public land is
under the homestead laws one hundred and sixty acres/' It was stated
in that case as follows :
It Reems clear to me from this review that Congress and the President used the
terms '^quarter-section'' and "one hundred and sixty acres '' interchangeably and
as meaning the same quantity of land, and that this resulted from the fact that a
quarter-section under the government system of public surveys embraces or is
intended to embrace Just one hundred and sixty acres, although from inaccuracies
in adjusting meridians, and other exceptional reasons, it sometimes differs from that
amount ; and that the purpose was to give settlers under the law one hundred and
sixty acres, and no more. When, therefore, by reason of the surveys, an entry for
this precise amount is impracticable, it must, as nearly as possible, approximate it
.... It tlius appears that, substantially, the same words are used in limitation
of land to be entered under both the pre-emption and homestead laws, and I canuot
doubt that the terms " quarter-section ** and *' one hundred and sixty acres ** are used
synonymously in each to mean one hundred and sixty acres; and this is in harmony
with the general policy of the government under other laws*
In the interpretation of Sec. 2289, Revised Statutes, which provides
that every qualified person: ^' Shall be entitled to enter one quarter-
section or a less quantity of unappropriated public lands," the Depart-
ment, in the case of William C. Elson (6 L. D., 797), said, inter alia
It is true that generally the quarter-section, if the survey be correct, will contain
one hundred and sixty acres; but it was well known to Congress that many quarter
sections were fractional in the survey, and that many, which were not fractional,
did not contain exactly the one hundred and sixty acres of land. They, therefore,
gave a settler the quarter-section as it should be found surveyed.
.... An actual area-measurement of the government survey shows, as is weU
known, that few subdivisions contain exactly the number of acres reported by the
surveyor, generally containing more or less. The grants of the United States are not
by quantity, but by description, and, it is a familiar rule, that a caU of quantity
in a grant must yield to description, and the act of Congress is to be regarded as a
grant as to each tracts in a certain sense.
It will be observed that the question involved in tbe above cited
cases was as to the entry of a quarter-section containing more than one
hundred and sixty acres, and the entry was not rejected on account
of the excess, the same being regarded as a quarter or one hundred
and sixty acres ^^in conformity to the legal subdivisions of the public
lands."
The issue has probably not heretofore been raised, under the act of
May 2, 1890, as to an entry of a quarter-section containing less than
one hundred and sixty acres, but, as is well known, a great many quar-
ter sections have been entered as such when the area-measurement
woald not equal the one hundred and sixty acres; but as those entries
DECISIONS RELATING TO THE PUBLIC LANDS. 251
containing more have been allowed to stand, simply because the quar-
ter-section was in conformity with legal subdivisions, it would seem
that where the deficiency is shown to be small the rule should work
both ways. Especially is this true since there is a provision of law to
the effect that when a settler has entered less than one quarter- section
ot land he may enter other and additional land lying contiguous to the
original entry, which shall not, with the land first entered and occupied,
exceed in the aggregate one hundred and sixty acres. But an applica-
tion for additional land to make up the full one hundred and sixty aores
ill such a case as the Kansas land herein referred to, would probably
Dot be considered, for the reason that such entry under the rules must
be regarded as a quarter-section or one hundred and sixty acres, and
the maxim of de minimis non curat lex would apply. It does not logi-
cally follow therefore, as contended by the plaintiff, that if he is barred
by the ownership of 159.35 acres, he would be equally barred by the
ownership of ten acres or any quantity less than one hundred and sixty
acres, for the reason that when an entry is made for a much less quan-
tity than one hundred and sixty acres, the entryman has the privilege
of making an additional entry.
To all intents, therefore, the land owned by Mason in the State of
Kansas was a full quarter-section according to the legal subdivisions
made on the basis of one hundred and sixty acres to the quarter.
Technically, the quarter section of land in Kansas did not contain one
hundred and sixty acres as shown by the field notes in your office.
But it was intended that it should, and the fact that the results reached
by the survey show a fraction less than one hundred and sixty acres
was due to the variations allowable in making the said survey. To
hold otherwise would be to declare Mason a qualified entryman on a
technicality, based on an interpretation of the statute by itself alone
and according to the mere literal meaning of its words. The statute
most be construed in connection with the whole system governing the
disposition of the public lauds and in the light of previous statutes
upon the same subject. As heretofore shown, the terms quarter-section
and one hundred and sixty acres, are used interchangeably, unless it is
to be presumed that Congress, in the act of May 2, 1890, intended to
reverse the former policy and introduce a fundamental change in the
well established custom of the Department.
The evident intent, in all legislation relating to the public lands, has
been to limit the entry of said lands to those who do not already own
one hundred and sixty acres of land or a quarter-section. And the fact
that the quarter- section may consist of a little more or a little less than
one hundred and sixty acres, is shown by the well established practice
of the Department to cut no figure either in the admission or rejection
of applications to make entry. When an 4'ntry is made it is made by
description, and there are numerous decisions going to show that when
a quarter-section contains more than one hundred and sixty acres, the
252 DECISIONS RELATING TO THE PUBLIC LANDS.
eatry therefor is uot necec^sarily rejected on account of the excess.
There »eeins to be no goo<l reason for enforcing a stricter role in cases
where the actual number of acres falls in a small fractional degree
short of one hundred and sixty acres. The records of your office show,
with reference to the Kansas land in ques^tion, that one hundred and
sixty acres in round numbers were originally entercKl. Presumably this
represents the number of acres that passed by purchase into the ik>8-
session of the plaintiff Mason.
The whole scheme for the disposition of the public domain has been
to afford to landless peo])le the opportunity of securing homes. This
sentiment runs throughout the debates of Congress in passing various
acts relative to such disposition of the lands. And one of the tests of
a person's qualifications to secure the benefits of the law in this regard
has been, whether at the time of entry he was the owner of a quarter-
section of land in any State or Territory, or approximately one hundred
and sixty acres. This was the evident intent of Congress as gathered
from the history of legislation on that subject, regardless of the language
employed in the acts. This view is certainly in harmony with sound
policy and is in strict accord with justice and good faith, which consti-
tute the essential features in a prosier administration of the public land
laws.
As was said in the case of Byan et al, v. Carter et al. (93 U. S., 78)—
No known rale of law requires na to interpret it (act of Confpress) according to its
nteral import, when its evident intent is different. It may be tliat the words, taken
in their usual sense, would exclude the case of Dodier ; )>at if it can be gathered, from
a yiew of the whole law, and others in pari materia, that they were not used in that
sense, and if they admit of another meaning in perfect harmony with the general
scope of the ntatute, it will be adopted as the declaration of the will of Congrefs.
Especially is this so when this construction withdraws the least number of cases from
the operation of the statute.
I think it may fairly be assumed, in the light of past legislation, that
it was the evident intent of Congress in the act of May 2, 1890, to con-
vey the same meaning by the language employed therein as is indicated
in its previous acts. There would seem to be no good reason for estab-
lishing a difi'erent rule from that already existing, especially as a differ-
ent interpretation would have the effect of withdrawing a great number
of cases from the operation of the iirohibitory statute, and thereby
qualify a great number of persons to make entry who have heretofore
been deemed disqualified ; and that too on mere technicality.
It thus being decided that the plaintitt' was at one time owner of one
hundred and sixty a(;res of land in the State of Kansas, and thereby
disqualified to make entry, it becomes necessary to determine whether
he was the owner thereof at 5 P. M. on October 13, 1893, the day and
hour he alleges settlement on the tract in controversy. And in the con-
sideration of this question it will be proper to attach much importance
to Mason's good faith as gathered from the surrounding circumstances.
DECISIONS RELATING TO THE PUBLIC LANDS. 253
The facts relative to Mason's alleged transfer of bis Kansas land are
sabstantially as follows: Mason alleges settlement October 13, 1893.
The evidence shows, however, that he was in the Territory and had
examined the )and several days prior to that date. He was negotiating
with one Walter A. Carpenter, who had a settler's right to the land in
question, for the purchase of said right. When the said purchase was
consammated Mason alleges that at nine o'clock on the morning of
Octol^er 13, 1893, he executed a deed transferring his land in the State
of Kansas to his sister. Having acknowledged the said deed, he mailed
it to his wife with instructions to send the same to the recorder's office.
It appears that Mason did not know his wife's address, so he sent the
deed to some one at Sabetha, Kansas, to be forwarded to his wife at
St. Joseph or Marysville, Missouri. It seems also that the conveyance
of the Kansas land was not in the nature of a sale, but was made as a
gift, no money consideration passing between the parties to the con-
tract. In explanation of the transaction Mason states, in affidavits
accompanying a petition for rehearing, that prior to October 6, 1893,
he received a letter from his sister saying that she was in need of
financial aid. and that on that date he wrote her offering to give her
tbe Kansas land and to make her a deed for the same. No evidence
regarding these allegations was brought out at the hearing, and no fur-
ther communication between Mason and his sister is shown. Mason
claims that he has not seen the deed since he mailed it, and that he
does not know whether his wife forwarded the same to the recorder's
oflSce. The affidavits referred to, however, state that the deed was
finally recorded, but it was after considerable delay.
It will be unnecessary ibr this Department to consider at length the
question as to whether or not the manner in which the said deed was
delivered constituted a proper delivery in contemplation of law. In
the light of the numerous authorities cited by counsel on both sides,
and which it is not necessary to repeat here, I am of the opinion that
Mason's act, under all the circumstances of the case, did not amount
to proper delivery. There was apparently no previous agreement
between the grantor and grantee as to how the delivery should be
made, or that Mrs. Mason should act as the agent of both. The deed
was not even sent to the grantee, nor were there any instructions that
it should be delivered into the grantee's possession.
The authorities are perhaps uniform in holding that when the
grantor parts with all control over the deed, that act is effectual and
operates from the instant of delivery. The matter of control over the
deed constitutes the essence of the case at bar. The question arises,
whether from the fact that Mason mailed the deed to his wife, without
any previous agreement to that effect between the parties to the deed,
he thereby parted with all control over the instrument. The deed was
never placed in the possession of the grantee. There were no instruc-
tions to Mason's wife that the deed should be delivered to the grantee;
254 DECISIONS RELATING TO THE PUBLIC LANDS.
in fact, the latter was at the time in Leavenworth, Kansas, a distance
of three hnndred miles away. So that if Mason did not really iutend
to transfer the Kansas land to his sister, he still had an opportunity to
recall the deed, and in this view its delivery conld hardly be regarded
as valid.
When Mason mailed the deed he thereby constituted the government
his ai^ent to deliver the same to his wife, and then by instructions be
made his wife his agent to see that it was recorded, but neither was
the agent of the grantee according to any former agreement; in fact,
the grantee, as subsequent events showed, knew nothiug of Mason's
intentions in this regard.
The principal question, however, as heretofore implied, is as to
whether or not Mason has acted in entire good faith in his transac-
tions connected with the land in controversy. One suspicious circum-
stance involved in the transaction is that Mason's sister, the grantee
of the deed, apparently knew nothing of it. On the face of the record
it looks as if she were employed as an unconscious beneficiary for the
express purpose of qualifying Mason to make entry. No copy of the
deed is put in evidence, nor of the letter containing the instructions to
Mason's wife. The evidence concerning these things is made to depend
solely upon the assertions of Mason, and he is the interested party.
His testimony regarding what became of the deed after he had mailed
it is entirely too vague and uncertain for a matter of so much impor-
tance. He does not know whether the said deed was acknowledged by
his wife; does not recollect the description of the land he deeded away,
nor is he quite sure that the said deed was ever forwarded to the
recorder's office, as he has never seen it since.
Counsel for plaintiff in this case rely largely upon presumption to
ciupply the deficiency caused by the absence of positive testimony.
Given the frame- work, consisting of the bare statement of plaintiff
tbat he properly executed and acknowledged the deed in question and
placed the same in the mails, they depend upon presumption to com-
plete the structure. They presume from Mason's statements that his
intentions were honest and that the deed was properly delivered aod
regularly recorded. But beyond the acknowledgments of Mason him-
self the evidence is silent.
The Department is unable to conclude' from Mason's uncorroborated
statement, in view of the suspicious circumstances developed by the
testimony, that being the owner of one hundred and sixty acres of land
at nine o'clock in the morning of October 13, 1893, he could completely
divest himself of all title thereto, without any positive agreement or
negotiation with the grantee, and by the simple act of placing the deed
in the mails transform himself into a properly qualified entryman by
five o'clock in the afternoon of the same day. His purpose seems mani-
fest. The history of legislation will show that the government has
jealously limited the disposal of the public domain for the benefit of the
DECISIONS RELATING TO THE PUBLIC LANDS. 255
landless; so mach so that where an applicant to make entry is shown
to have been the owner at one time of one haudred.and sixty acres of
land, stronger evidence that he has become divested of title thereto
will be required than is present in this case.
It is unnecessary to consider the evidence touching Mason's alleged
settlement on and improvement of the land in question prior to Crom-
well's entry, in view of the fact that he is found to be disqualified by
reason of his ownership of one hundred and sixty acres of land in the
State of Kansas at the date of said settlement.
Your office decision is hereby affirmed.
repayment-fees axd commissions.
Leslie O. Husted.
fiepaymeDt of the fees and commissionf) paid on an entry will not be allowed where
the entry is relinqaisbed on account of the undesirable character of the land,
and a second entry made.
Secretary BlisH to the Commissioner of the General Land Office j March
(I. H. L.) 25, 1897. (J. L. McC.)
Leslie O. Husted, on March 26, 1889, made homestead entry for the
8E. J of Sec. 15, T. 7 N., R. 49 W., Denver laud district, Colorado.
Finding it was impossible to obtain water fit for ase, he was, upon
his own request, permitted to relinqnish the land and make a second
entry. Afterward he applied for repayment of the tees and commis-
sions paid upon his former entry. This application your office refused,
by letter of March 4, 1896. He now appeals to the Department. He
quotes from the General Circular of October 30, 1895, which states that,
where an entry is canceled as invalid for some reason other than abandonment, and
not the wilful act of the pArty, he ... . may have the fee and commissions paid
on the canceled entry refunded on proper application, under the act of June 16, 1880..
The paragraph quoted from the General Circular expressly refers to
an entry '^canceled as invalid;" the entry in the case at bar was not
canceled because invalid. The act of June 16, 1880, provides for repay-
ment where entries have ^^ been erroneously allowed and can not be
eonfirmed;" the entry here in question could have been confirmed, but
theentryman did not wish that it should be; he preferred to relinquish
it and select other land.
The decision of your office was correct, and is hereby affirmed.
256 DECISIONS RELATING TO THE PUBLIC LANDS.
RBPAYMENT— PATENTEE-SITRRENIJER OF PATEITT.
Henby H. Harbison.
On application for the retnrn of purchase money by a patentee who was required to
purchase under section 5, act of March 3, 1887, when in fact the land passed
by the railroad grant under which he held, the applicant should surrender the
patent, but should not be required to execute a deed of relinquishment.
Secretary Bliss to the Commissioner of the General Land Office^ March
(I. H. L.) 15j 1697. (J. L)
This case iuvolves the repayment of the sum of two haiidred dollan>
tlxe purchase mouey paid to the United States by Henry H. Harrison
for the E. i of the NE. i of section 9, T. 47 N., E. 4 W., Ashland land
district, Wisconsin, containing eighty acres of land.
Said tract was granted by the acts of June 3, 1856 (II Statutes 20),
and May 5, 1864 (13 Statutes 66), to the State of Wisconsin to aid in
the construction of railroads. Decisions of the supreme court rendered
on June 3, 1895, and reported in 159 U. S. reports — W^isconsin Central
Railroad Co. r. Forsythe, p. 46, and Spencer «?. McDougal, p. 62 — finally
a^yudged that the Wisconsin Central Bailroad Company acquired from
the Stiito of Wisconsin a good title to said tract of land under said
grants. And it appears that Harrison by sundry intermediate convey-
ances had acquired and was owner of the title of the company.
Previous to the publication of said decisions, your office and this
Department had held that the tract in contest (and other lauds in con-
simili ea«u), did not pass under the grants aforesaid, and was subject
to entry under the general land laws. Your office thereupon advised
Mr. Harrison, that it would be necessary for him t-o purchase said tract
firom the government under the fifth section of the act of March 3, 1S87
(24 Statutes, 556). Consequently Harrison, on June 8, 1893, paid tbe
government two hundred dollars for the tract, as appears by certificate
No. 5728 of that date issued at Ashland, Wisconsin. And on August
31, 1894, a patent for the land was issued to him.
After the promulgation of said decisions, to wit: on July 3, 189o,
Harrison filed his application for repayment of the two hundred
dollars aforesaid in accordance with section 2362 of the Bevised Stat-
utes of the United States. On December 6, 1895, (by letter "F"),
your office required Harrison (1) to surrender the patent issued to Lim,
(2) to furnish a duly executed deed relinquishing to the United States
all right and claim to the laud under said patent, (3) to have said deed
duly recorded, and (4) to furnish a supplemental abstract of title con-
tinued from June 27, 1895 — the date of the abstract now on file — down
to and including the date of recording said deed.
On January 15, 1896, Harrison tiled a motion for a review of said
decision. On July 2, 1896 (letter "F"), your office denied said motion,
and declined to modify the former decision.
DECISIONS RELATING TO THE PUBLIC LANDS. 257
Whereupon Harrison appealed to this Department.
By section 2362 of the Revised Statutes it is enacted that :
The Secretary of the Interior is authorized, upon proof being made to his satis-
faction that any tract of land has been erroneously sold by the United States so
that from any cause the sale can not be confirmed, to repay to the purchaser or to
his legal representatives or assigns, the sum of money which was paid therefor, out
of any money in the Treasury not otherwise appropriated.
It is conceded, that before he applied to purchase under the act of
March 3, 1887, Harrison had acquired the valid title already conveyed
by the United States to the State of Wisconsin 5 that the patent issued
to biin conveyed no title, because the land therein described did not
belong to the Uuited States; and that his right to be repaid the pur-
chase money is unquestionable. The only question involved is merely
a matter of administration to be determined by reference to the
regulations.
The General Land Office circular of February 6, 1892, on page 86,
and the circular of October 30, 1895, on page 08, both prescribe as
follows :
If however, the applicant has acquired the valid title already conveyed by the
United States^ it will not be necessary for him to reconvey the land, but he may
make a full statement, with corroborative evidence of the facts, waiving all claim
under the invalid entry, and thereupon receive repayment of the amount erroneously
paid.
Harrison filed a full statement, which is corroborated by the records
of your office. He is willing and ofters to surrender his patent, and
waive all claims under it, and the invalid entry on which it was issued.
Your office erred in requiring him to execute a deed of relinquishment,
aud have the same recorded, and to furnish a supplemental abstract of
title continued from the date of the abstract on file down to the date of
such recordation.
The patent is null and void to all intents and purposes. It conveyed
no right, title, interest or estate which Harrison can consistently under-
take to relinquish. He should be repaid the money upon the return
and surrender of the patent with his receipt for the money duly attested
endorsed thereon, in full payment and satisfaction of all his claims
thereunder, in such form as your office may prescribe.
Your office decision is hereby modified as above indicated.
10671— VOL 24 17
258 DECISIONS RELATING TO THE PUBLIC LANDS.
ADJOINING FAKM ENTRY— TO\VNSITE—MlXER.VL. LAND.
Caldwell r. Gold Bar Mining Company.
An adjoining farm entry in invalid, and will not be allowed to stand, if the entryuiaL
was not in fact the owner of the alleged original farm at the time of entry.
An application to make townsite entry under section 2389 R. S., will not be allownl,
where the namber of bona fide occupants is not given, and it is not manifest that
the occupants in fact desire in good faith to make such entry, and also vrbere
the application covers land apparently mineral in character, and in close prox-
imity to another town.
In case of an attack on a mineral location of land that has once been adjud^d min-
eral in character, the abandonment or forfeiture of the claim must be showD h\
clear and unmistakable evidence.
Secretary Bliss to the Commissioner of the General Land Office^ March
(L H. L.) 15, 1897, (P. J. C.)
The record shows that the Gold Bar Qaartz Mining Company made
application for patent for the Gold Bar mining claim, lot No. 206, Sa<;-
ramento, California, land district, on November 24, 1893. Notice by
X)ublication was duly given of this application, which ran from Novem-
ber 26, 1893, to February 3, 1894.
John Caldwell, a superior judge of Nevada county, California, filed
in the local office an application to enter, for townsite purix)ses, "in
accordance with the provisions of sections 2388-9 inclusive (JR. S.),"
lot 3 in Sec. 33, lot 6 in Sec. 28, lot 12 in Sec. 27, and fractional NW. \
of NW. J (also described as lot 20) in Sec. 34, T. 16 N., R. 8 E., M. D.
M., in trust for the uses and i)urposes of the occupants and dwellers
thereon. He represented that the land was then used and occupie<l for
townsite purposes and had been since 1860. This ax)plication is not
dated, but the local officers say it was presented January 23, 1894. It
appears that they declined to accept the application beirause of conflict
with the mineral application ^^and with the homestead entry of Richard
Ryan." It is also stated by the local officers that on the same day
Judge Caldwell filed a protest against the mineral entry. It seems
that this protest was against the <^ mineral applicants the Gold Bar
Quartz Mining Company, Richard Ryan, homestead claimant, and Cen-
tral Pacific Railroad Company.'' It is dated January 15, 1894, and
alleges that he desires to make entry of the land for the use and benefit
of the inhabitants thereof; that the land is entirely enclosed and occu-
pied by persons residing thereon; that there are more tlian fifteen
dwellings and families thereon, the total number of inhabitants being
one hundred and fifty; that the land has been used for townsite pur-
poses for more than thirty years; "that the majority of the occupants
of said premises have requested me to make application in trust for
them under the United States Revised Statutes;" that he files "this
adverse claim and protest against the said application by said Gold
Bar Quartz Mining Company for said Gold Bar Quartz Mine," because
DECISIONS RELATING TO THE PUBLIC LANDS. 269
^^the laDcl embraced therein is agricultural land, and that no part of it
is mineral and that no mineral or quartz of any kind has ever been
discovered thereon ; '' that the land is settled ui>on and occui)ied as a
towDsite; and that ^^that portion in section 27 is excepted from the
railroad grant by reason of the pre-emption claim of J. J. Collins.*'
This protest is not sworn to by the judge, but he states 'Hhat the
facts upon which said adverse claim and protest are based being (are)
fully set forth in the affidavits hereto annexed."
The affidavits referred to were made by Eichard Ryan, one of the
defendants in the protest, and John Thomas, in which they swear that
there are nine dwellings etc. on the land; that there is no lode existing
within the limits of the Gold Bar claim; that no gold nor quartz has
been extracted from the premises; that the ground embraced is non-
mineral in character, and that there are no indications of mineral upon
the same; and that Collins settled upon lot 12 in Sec. 27 prior to 1862
and filed his declaratory statement therefor in 1868. This affidavit was
sworn to on January 12, 1894.
On January 24, following, the local officers issued notice calling for a
hearing on this protest.
On February 3, 1894, the mining company made application to pur-
chase the land applied for, which was denied because of the x)ending
contest. Subsequently, in the same month, the mining company
applied for a re-hearing on its application to purchase and to recon-
sider the respective orders issued, and that the notice might be dis-
missed and quashed. . The local officers thereupon modified their former
decision to the extent of (gnashing the notice which had been issued;
and thereupon transmitted the record to your office with the recom-
mendation that a hearing be ordered. The mineral claimants appealed
from their action.
Your office, by letter of January 20, 1894, considered this appeal,
aud in doing so recited the prior history of lot 3, included in the tract,
as follows :
In deciding this question it becomes necessary to consider briefly the facts of
record relative to said lot 3, of section 33.
This office by decision dated November 27, 1885, (letter F), in the case of S. J.
Alderman r. C. P. R. R. Co.^ involving said lot 3, decided: *^ The residence of Irish
antedating the railroad grant, and ext«nding beyond the date of definite location,
excepted the land from the operation of the grant, the same is therefore subject to
disposal under the general laws of the United States."
•^aid office decision was affirmed by the departmental decision of September 28, 1887.
It appears from the record in quasi contest No. 601, W. II. Weldon claiming the
Gold Bar Quartz mine r. C. P. R. R. Co. that Weldon on October 8, 1890, filed a peti-
tion aUeging that the land in said lot 3, is mineral in character.
Upon said petition a hearing, which was ordered by this office, was held March
27, 1891.
'Said hearing resulted in a final decision by this office, dated February 26, 1892,
from which I quote: ''You decided that the land was mineral in character and
recommended that it be excluded from the grant to the said respondent.
260 DECISIONS RELATING TO THE PUBLIC LANDS.
''The parties in interest vrere duly notified of yoar deciBion and no appeal has been
taken therefrom.
''Your decision is accordingly affirmed and the Central Pacific R. R. Co.'s. selection
as per list No. 12, is hereby canceled as to the extent of said lot No. 3 of Sec. 33,
T.16N., R.8E., M.D.M.
"It farther appears that while the case was pending in this office yon allowed in
Tiolation of Rnle 53 of Practice, homestead entry No. 5945 to be made by Richard
Ryan '^
"This eutr}" covers the tract involved in the above contest andwaH wholly irregu-
lar but will be allowed to stand snbject to any prior attached rights.^'
In view of the foregoing, the proper townsite authorities and' Richard Ryan will
be allowed thirty days in which to apply for notice of a hearing, to be by them served
in accordance with the rules of practice, at which evidence mnst be submitted to
show whether the land embraced iu said mining claim is valuable mineral land, and
whether that part thereof embraced in said lot 3 is more valuable for mineral than
agricultural purposes.
Lot 12, of section 27, T. 16 N.» R. 8 £., embraced in said declaratory statement is
also within the grant to the Central Pacific Railroad Company. Before the towusite
declaratory statement can be received and filed, it will be necessary to have said lot
12, regularly excepted from the grant.
In order to show that lot 12, ought to be excepted from the grant, said railroad
company should be ina«le a party defendant in this case by due service.
A motion for review of this decisiou was denied by your oiiice letter
of October 4, 1894.
A hearing was had before the local officers in parsuance of this
order, at which the townsite claimants and Bichard Ryan were repre-
sented by an attorney, and there was also present an attorney for the
mining company. The railroad company appeared and filed a protest
in reference to lot 12 in section 27. It may be said in this connection
that this lot is not included in nor does it conflict with the Gk>ld Bar
Quartz mine in any way.
As a result of the hearing before the local officers they decided that
the land involved is non-mineral in character and that lot 12 of section
27 was covered by a valid pre-emption claim at the date of the grant to
the Central Pacific Bailroad Company, and decided that the mineral
application of the Gold Bar Mining Company should be canceled; that
lot 12 was excepted from the terras of the grant; that Bichard Byan's
homestead entry of an additional farm homestead should be allowed to
stand intact; and that Judge Caldwell or his successor in office be
allowed to enter the land applied for by him and not ^embraced in
Bichard Byan's claim.
On appeal your oflico affirmed the decision below, except as to Byan-s
additional farm homestead, which was held for cancellation. A motion
for review of said decision was denied, and the case now comes befoi'e
the Department on the separate appeals of the mineral claimants and
Byan. The specifications of error filed by the mining company are
quite voluminous and will not be set forth, but such errors as are sug-
gested that are pertinent to the issues involved will be considered.
The error alleged by Byan is in holding his additional farm homestead
entry for cancellation.
DECISIONS RELATING TO THE PUBLIC LANDS. 261
As to the appeal of Eyan: The judgment of your office that his
additional farm homestead entry should be canceled is concurred in.
In the first place, it was erroneously allowed by the local officers, inas-
much as the land was then under contest and of course not subject to
entry until that contest was disposed of. Again, this entry should
not be allowed to stand under the circumstances. In his affidavit he
stated
that I now own and reside npon an original farm containing about three acres and
DO more; that the same comprises a portion of mineral lot No. 198, in the NE. i of
Sec. 33, T. 16 N., R. 8 £., and is contiguous to the tract this day applied for.
The testimony in the case shows that Eyan was only a settler or
^'Squatter " on the mineral land at the time he made his additional farm
entry and that he had no title to the land until about two mouths prior
to the hearing which was held December 17, 1894. If it be conceded,
for the sake of argument, that he had the right to make additional farm
entry simply by reason of purchase of this tract, yet it is clear that he
had DO such title to the three acres as would warrant the allowance of
the entry at the time it was made (Boord v. (xirtman, 14 L. D., 516;
Rush r. Bailey, 16 L. D., 565).
Apparently a little more than one half of the ground included in the
Gold Bar is in lot 3 of Sec. 33. It is triangularly shaped, the base of
the triangle extending almost the entire length of the southerly side
line of the mining claim and the apex being just outside the northerly
side line.
This particular piece of land has been the subject of litigation in the
Department and the local courts since 1885. This is probably owing
to the fact that the land has been inhabited to some extent ever since
1860, by a few persons; its close proximity to the city of Grass Valley,
and that it is surrounded by mines and mining claims, many of which
have been patented by the government, and which are now, or have
been in the past, extensively worked.
So far as disclosed there has never before been any attempt made to
secure title to the laud for townsite purposes, neither was the tract
under municipal control or laid oft' in lots and blocks. It is shown by
the testimony of one witness, however, that since this proceeding was
commenced it has been included within the corporate limits of Grass
Valley.
It will be observed that the application for townsite entry is not made
under the act of March 3, 1877 (19 Stat., 392), as an additional entry for
townsite purposes, but is for an original townsite entry under ** sections
238^9 inclusive."
It is gathered from the record that the application of the superior
judge was brought about by a petition from the residents. There is in
the record a petition signed by ten persons representing themselves to
be *'of the number represented by your honor, officially, in a certain
petition and application for townsite patent," etc., requesting him to
262 DECISIONS RELATING TO THE PUBLIC LANDS.
withdraw the application made for entry. In compliance therewith, as
stated by him, the superior judge filed a formal withdrawal of his said
applicatiou, which was dated December 10, 1894. Subsequently, how-
ever, on the day the hearing began, the judge withdrew this abaDdon
meut. In his letter of withdrawal he states that he had supi)osed the
request to abandon the application presented to him had been made by
*'all the townsite residents within the limits of said Gold Bar quartz
claim," but he is '^ now informed that five of the townsite residents *^ did
not join in the petition. 8o it appears that the superior judge is now
' representing the wishes of but five persons in prosecuting his applica-
tion for patent. At the hearing the attorney who appeared for the
townsite applicants also acted for Kyan, to the extent of offering the
testimony taken in behalf of the townsite applicants as evidence for
Kyan. It will be remembered that the protest of the superior judge
was made both against Ryan and the mineral claimant, and his appli-
cation to enter included the land Ryan had entered as an additional
farm homestead. It is therefore clearly apparent, if these parties — the
superior judge and Ryan — are acting in good faith, that their interests
are necessarily antagonistic.
It is shown by the testimony on the part of the defendant, that at
the time of the hearing there was residing on the mining claim the
individuals who petitioned the superior judge to abandon the applica-
tion for townsite. This petition was shown to one of the witnesses for
the defense and he was asked if it included all the settlers within the
Oold Bar mining claim. His reply was, that it did not; that those not
signing were Richard Ryan, John Thomas, John Thompson, Mrs. Wal-
lace and Peter Keelly. It is shown, however, that Ryan did not live
on the land, but had a part of it included in his enclosure. It is also
shown that Peter Keelly did not then reside on the tract, his house
having been burned previously. The townsite claimants' testimony
shows *'ten or eleven dwellings" and gives the namesof eleven persons
living there with their families, including Weldon, who it appears is
largely interested in the Gold Bar Company. It also shows that there
have been people living on the land since 1860.
It also appears that all the settlers, except five, have entered into an
agreement with the mining company by which they are to get title to
the surface of the ground they occupy.
It further appears that there have been mines worked in this immediate
vicinity since its first settlement; that in all directions immediately sur-
rounding the Gold Bar are mining claims and on the two sides and one
end have been patented as mineral land. It is shown that in 1888 Ryan
and Keelly and two others located lot 3 as a placer claim. The ground
included in the Gold Bar claim was originally located in 1877, under the
name of the Silver Star, and relocated under its present name in 188S.
It seems to me, in view of all these circumstances, that there is not
presented such a case here as will warrant the Department in permit-
ting an entry of this land under the townsite law, at least under the
DECISIONS RELATING TO THE PUBLIC LANDS. 263
application that is now pending. The actual number of bona fide occvl-
pants of the tract is not given, neither is it shown that any emergency
exists that would demand the granting of another and independent
townsite entry such as this application contemplates, in such close
proximity to another town. In the protest filed by the superior judge
it is alleged that there are "more than 9 dwellings occupied by 8
families,'* but the testimony does not show "more than 9 dwellings.''
It is contended that the former decision of your office in the case of
Weldon r. Central Pacific R. R. Co., affirming that of the local officers
adjudging the land included in the Gold Bar to be mineral in character,
is res judicata of that question. It appears to me that there is much
force in this proposition. If its mineral character was such as to except
it from the operation of the grant to the railroad company, it would
seem to be ample for the purpose of at least throwing the bunleu of
proof upon those attacking it on the ground that it is agricultural,
which is one of the charges made in the affidavit of contest. This
question as to the burden of proof in cases where there has been a
former adjudication on this subject, is fully discussed in all its features
in Stinchfield v. Pierce, 19 L. D., 12; Dargin et al. i\ Koch, 20 L. D.,
384, and McCharles v. Roberts, Id., 564, and it is not deemed necessary
to go over the ground again. It is enough to say that in the last-named
case it was decided that where parties attack a mineral location on land
that has once been adjudged to be mineral in character it is necessary
to allege and prove abandonment or forfeiture of the mining claim and
that the testimony should be clear and unmistakable;
that after final Jadgment declaring land to be mineral in character the simple allega-
tion that the land is as a present fact more valuable for agriculture is not sufficient
upon which to order a hearing, and again compel the mineral claimant to adjudicate
the question.
The clear preponderance of the testimony in the case at bar is with
the mineral claimants. It is shown that there is some mineral in
sight on the claim. It is true, as said in your office decision, that no
ore has been produced by the claimants, but this may be accounted for
by the fact that there has been continuous litigation over the land.
Bat be this as it may, the fact is that there is not sufficient evidence in
the case to warrant a reversal of the former judgment as to tne char-
acter of the land.
Your office judgment that the land is not mineral in character is
therefore reversed, and the application by the superior judge denied.
264 DECISIONS RELATING TO THE PUBLIC LANDS
INDIAN LiANDS-AXLOTMENT-CONTEST.
Opinion,
The Secretary of the Interior has authority to investigate the validity of an Indian
allotment at any time prior to the issue of the first patent provided for anderthe
allotment law, and on sufficient cause shown, to rescind the approval of an allot-
ment and reject it.
Assistant Attorney -General Lianberger to the Secretary of the Interior,
February 15, 1897. (W. C. P.)
A letter from the Commissioner of the General Land Office in regard
to bearings on charges against the legality of certain Indian allotments
was referred to me by First Assistant Secretary Sims, with request for
an opinion npon the questions involved.
Other papers relating to similar matters were transmitted by the
Commissioner before and after said letter was received, and were re-
ferred to me for an opinion. Subsequently the Commissioner addressed
a letter to you requesting that all these matters be considered together
It seems in this particular instance allegations were made that the
lands covered by certain Indian allotments were covered by a heavy
growth of timber, which constituted their chief value, and that the
allotuieuts were made for the benefit of timber speculators, whereupon
the Commissiouer of the General Land Office ordered a hearing to
determine the facts. This action was taken under depai*tmental letter
of December 6, 1895, to the Commissioner of the General Land Office,
wherein it was said :
In accordance with your recommendations yon are hereby anthorized to suspeud
action on all Indian allotments in said States under section 4 of said act pending
investigation of the charges preferred against the same.
In the letter which called forth these instructions the Commissioner
of the General Land Office made the following statement and sugges-
tion:
I have temporarily suspended action on a number of allotment applications in said
States now in this office, and on a number of allotments which have been before the
Department and approved for patent, pending instructions from the Department in
the matter.
I respectfully suggest that this office be authorized and directed to suspend all
action on Indian allotments under section 4 of the general allotment act of February
8, 1887, in the States of Minnesota and Wisconsin, pending investigation thereof by
a special agent of this office as to the charges preferred against the same in the let-
ters transmitted herewith.
The instructions given by the Department when read in connection
with this letter from the Commissioner of the General Land Office
which called them forth are broad enough to justify his conclusion that
the order of suspension covered approved allotments as well as those
where applications were under consideration.
DECISIONS RELATING TO THE PUBLIC LANDS. 265
I take it, however, that my opinion was desired upon the general
question as to the authority of the Secretary to investigate the legality
of an allotment after approval, rather than upon the question as to
whether the action of the Commissioner of the General Land OflBce in
ordering hearings on charges against approved allotments was within
the scope of his instructions.
The Commissioner of Indian Affairs requested the Commissioner of
the General Land Office to rescind his order for these hearings, con-
tending that the approval of any Indian allotment is a final determina-
tion of the right of the Indian thereto, and that thereafter there is no
authority to investigate the legality of the allotment. In support
of this contention he cites the decision in the case of Falconer t\ Price
(19 L. D., 167), and a decision of December 3, 1888, in respect to selling
timber by the allottee after approval. He also argues that the ruling
of the supreme court that where a right to a patent has once been
vested in a purchaser of public lands, it is equivalent to a patent issued,
is by analogy applicable to an Indian allotnient.
The decisions of the supreme court (Stark v. Starrs, 6 Wkll., 402, and
Simmons v. Wagner, 11 Otto, 260), cited by the Commissioner of Indian
Afl'airs, do not touch upon the question of the authority of this Depart-
ment to investigate the legality of an entry of public lands at any time
prior to the issuance of patent, but announce the rule that a right once
vested, that is, by legal entry or purchase, is equivalent to a patent
against subsequent claimants of the land. These cases are not in point
here. The authority of this Department to investigate entries of the
public lands, and to cancel any entry shown to be illegal at any time
prior to the issuance of patent, is too well established to require the
citation of authorities in support of the proposition. By analogy this
same rule may be well applied to Indian allotments.
The departmental letter of December 3, 1888, does nob announce any
rule that should be recognized as controlling the question now under
consideration. That letter simply instructed theCommissioner of Indian
Affairs that certain Chippewa Indians who had been given allotments
under a treaty with that tribe might be allowed to sell the timber upon
their allotments after approval by the President and prior to the issue
of patent thereon. This action does not by any means go to the extent
of saying that this Department would have no authority to investigate
as to the legality of any allotment at any time x>rior to the issue of
patent. It is true that the right under an approved allotment upon
which patent subsequently issues relates back to the date of approval,
but that has no influence upon the question now under consideration.
The decision in the case of Falconer v. Price (19 L. D., 167,) seems to
sustain the contention of the Commissioner of Indian Affairs. It seems
that Falconer applied to contest Price's allotment, and in the decision
thereof, after reciting that the allotment was approved by the Commis-
sioner of Indian Affairs, and by the Department, and was sent to the
266 DECISIONS RELATING TO THE PUBLIC LANDS.
General Land Office, with directions to issue patent thereon, but that
no patent had been issued, it is said:
Yonr office held that the allotment having been approved by the Department, tbe
qnt'stion as to the right of Price was Bettled, and your office declined to order a hear-
ing in the case. Your action is approved. The decision of your office is affirmed.
There is no discussion of the question, no citation of authority, nor
anything to indicate the line of reasoning by which the conclusion wu8
reached. I can not agree with that conclusion. The duty of making
these allotments devolves upon the Secretary of the Interior, and while
the interests of the Indians should be carefully guarded, there is also
an obligation upon him to watch the interests of the government aud
to prevent the making of illegal allotments. A mistake may be cor-
rected or a fraud prevented at any time before the Secretary of the
Interior, as the officer having charge of the public lands and their dis-
posal, completes his duties so far as to issue the patent provided for iu
said law. Having been given charge of this work he is necessarily
thereby vested with authority to do whatever may be necessary to its
proper performance.
As said before, this question may be determined by applying the rules
which obtain as to the sale or other disposition of the public land.s
under other laws. A homestead or other entry is subject to cancella-
tion at any time prior to the issuance of patent, for fraud or illegality.
That the same rule should be applied in Indian allotments as in tbe
ease of final entries will not be seriously disputed.
After a careful consideration of this matter, I am of the opinion, and
so advise you, that the Secretary of the Interior has authority to inves-
tigate the validity of an Indian allotment at any time prior to the issue
of the first patent provided for in the allotment act, and upon sufficient
cause shown, to rescind the approval of the allotment and reject it.
Approved :
David R. Fbancis,
Secretary.
MIXrXG CLlAJM-XOTICE-POSTING.
Circular.
Department of the Interior,
General Land Office,
^ya8hington, D, C, March 11, 1897,
Registers and Receivers,
United States Land Offices,
Gentlemen : Your attention is directed to the fact that by decision
rendered by the Department on February 27, 1897, in the case of
W. H. Gowdy et al,, v. The Kismet Gold Mining Company, the decision
rendered in said case on May 23, 1896, and reported in 22 L. D., 624,
DECISIONS RELATING TO THE PUBLIC LANDS. 267
was modified, and paragraph 29 of the Mining Regulations amended so
as to read as follows:
29. The claimant is then required to post a copy of the plat of snch enn-ey in a
coDspicnoiis place upon the claim, together with notice of his intention to apply
for a patent therefor, which notice will give the date of posting, the name of the
claimant, the name of the claim; the mining district and county; whether or not
the location is of record, and, if so, where the record may be found, giving the book
and page thereof; the number of feet claimed along the vein and the presumed
direction thereof; the number of feet claimed on the lode in each direction from the
]>oiiit of discovery, or other well defined ])lace on the claim ; the names of all adjoin-
ing and conflicting claims, or, if none exist, the notice should so state.
According to the last decision of the Department, the amendment of
said paragraph will take effect on the first day of June, 1897, and all
publications thereafter made must contain the information therein pre-
scribed. All publications made or started prior to that date are to be
treated in accordance with the practice of the Department existing
prior to the original jdecision in the case of W. H. Gowdy, et aL, v. The
Kismet Gold Mining Company.
Said decision of February 27, 1897, will be found published in Vol.
24 of Land Decisions, page 191.
Very respectfully, B. F. Best,
Acting Commi88io7ier,
Approved :
Wm. H. Sims,
Acting Secretary,
MISSISSIPPI I^A20JS-ACT OF FEBRUARY 17, 1807.
Instructions.
Department op the Interior,
General Land Office,
Washington, D. C, March 22, 1897.
'Itae Begister and the Eeoeiver,
United States Land Office, Jackson, Mississippi.
SiES: The act of Congress, approved February 17, 1897, provides as
follows :
AN ACT to enable certain persona in the State of Miasiasippi to procare title to public lands.
Be it enacted by the Senate and Hou»e of Representatives of the United States of America,
in Congress assembled^ That all persons who, prior to January nineteenth^ eighteen
hnndretl and ninety-fire, purchased in good faith from the State of Mississippi any
lands within the six miles or granted limits of the Mohile and Ohio Railroad, and
which lands were included in approved swamp-land list numbered seven, Augusta
series, their heirs or assigns, shall have the preference right for one year from the
passage of this act to enter under the homestead laws of the United States not
exceeding one hundred and sixty acres of the lands so purchased by them from the
'State of Mi.ssissippi and to purchase not exceeding one hundred and sixty acres
additional of such lands at one dollar and twenty-five cents per acre, or, if they
268 DECISIONS RELATING TO THE PUBLIC LANDS.
elect not to avail themselves of the hpmestead law, to purchase three handled aod
twenty acres of such land : ProHded, howereff That this aot shall not affect the
rights of homestead claimants who, between the sixteenth day of February, eighteen
handred and ninety-five, and the twenty -seventh day of May, eighteen hundred and
ninety-six, made settlements and entries or filed with the local laud officers applica-
tions to enter in good faith, under the homestead laws, any of the lands included in
the provisions of this act not occupied or actually and substantially improved by
such purchasers from the State.
Sec. 2. That all persons who have legally purchased any of the lands aforesaid at
tax sales shall be considered assigns within the meaning of this act.
Approved, February 17, 1897.
The act provides that persons who, prior to January 19, 1895, pur-
chased in good faith from the State of Mississippi any of the lands in
question, their heirs or assigns, shall have one year from the passage of
the act within which to enter, under the homestead laws, not to exceed
one hundred and sixty acres of land so purchased by them, and to pur-
chase from the United States, one hundred and sixty acres additional
at $1.25 per acre; or, if they do not desire to make entry under the
homestead laws, to purchase three hundred and twenty acres of said
land. It also provides that such act shall not affect the rights of home-
stead claimants who, between February 16, 1895, and Afay 27, 1896,
made settlements and entries or filed applications to enter in good
faith, under the homestead laws, any of the lands included in the pro-
visions of the act not occupied or actually and substantially improved
by such purchasers from the State.
Section two provides that persons who have legally purchased any
of said lands at tax sales shall be considered assigns within the mean-
ing of this act.
All persons applying to enter either under the homestead law or to
purchase any of such lands by virtue of their rights as purchasers from
the State, must present to you satisfactory evidence that they were
purchasers from the State prior to January 19, 1895, or are heirs or
assigns of such purchasers.
All persons who have made homestead entries of any of said lands
between the dates mentioned in the proviso to the first se<*tion of the
act, or had filed applications in the local office to make such entries,
are entitled to perfect their entries even as against the purchasers
from the State unless the land entered or embraced in their application
was occupied or actually and substantially improved by such purchas-
ers from the State, but they must submit satisfactory evidence that no
portion of the land embraced in their entry or application to enter was
so occupied or actually and substantially improved by any purchaser
from the State at the date of their entry or application.
If the purchaser from the State of any of the lands embraced witliiu
the provisions of this act do not apply to make entry under the home-
stead law, or to purchase said lands within one year from the passa^re
of this act, such lands will be subject to settlement and entry under
the homestead law as other portions of the public domain, and nothing
DECISIONS RELATING TO THE PUBLIC LANDS. 269
in this act will be so construed as to impair or affect the rights of any
homestead settler upon said lands, but such subsequent right will be
subject to the preference right of purchasers from the State for the
period of one year.
Respectfully, E. F. Best,
Acting Commissioner,
Approved:
C. N. Bliss,
Secretary.
ABANDONED MILITABY RESERVATION—FORT CAMERON.
Instructions.
Department of the Interior,
General Land Office,
Washington, D. C, March 22 j 1897.
Begistsr and Beceiyer,
Salt Lake City, Utah.
GENTLE3fEN : The appraisers have appraised the lands in the Fort
Cameron, iK)St and wood and timber, abandoned military reservation
at from ten cents to two dollars and fifty cents per acre.
The Secretary of the Interior has approved the appraisal of the lands
appraised at or above $1.25 per acre, and for lands appraised at less
than $1.25 per acre he has, under the law, fixed the minimum price of
such lands at $1.25 per acre. Therefore, no tract of land in this reser-
Tat ion can be disposed of at less than $1.25 per acre, although you will
be governed by the appraisal in disposing of those lands appraised at
more than $1.25 per acre.
All of said lands, except the SB. i SE, J Sec. 14, the NE. J Sec. 23 and
N W. \ N W. I Sec. 24, T. 29 S., B 7 W., which contain buildings purchased
by Mr. John B. Murdock from the government, and all school sections,
reserved by law from settlement and entry, are subject to settlement
under the provisions of the act of August 23, 1894 (28 Stat,, 491),
which, among other things, provides:
That persons who enter under the homestead law shall pay for sach lands at not
less than the value heretofore or hereafter determined hy appraisement, nor leae than
the price of the land at the time of the entry, and such payment may, at the option of
the purchaser, be made in iive equal installments; at times and at rates of interest
to be fixed hy the Secretary of the Interior.
On April 9, 1895 (20 L. D., 303), the Secretary of the Interior directed
this office to issue instructions under said act of August 23, 1894, as
follows:
That the homesteader be given the option in making payment upon his entry of
these lands, of making his payments in five equal payments to date fh>m the time of
the acceptance of his proof tendered on his entry, and that the rate of the interest
Qpou deferred payments be charged at the rate of 4 per cent per annum.
270 DECISIONS RELATING TO THE PUBLIC LANDS.
In allowing entries for lands in this reservation, under said law, yoa
will in each case endorse on the application ^^ Fort Cameron Reserva-
tion, act August 23, 1894,'' and i^ake the same notation on your abstract
of homestead entries.
Under the provisions of the homestead law, an entryman has the
right either to commute his entry after fourteen months from date of
settlement, or offer final proof under Sec, 2291 E. S. In entries under
said act of August 23, 1894. he may, at his option, commute after
fourteen months with full payment in cash, or, after submitting ordi-
nary five year final proof and after its acceptance, he may pay for the
land the full amount of the appraised value thereof or at not less than
$1.25 per acre, without interest, or he may make payment in five equal
installments, the first payment to be made one year after the accept-
ance of his final proof, and the subsequent payments to be made
annually thereafter, interest to be charged at the rate of four per cent
per annum from the date of the acceptance of final proof until all pay-
ments are made.
In case the full amount is paid after fourteen months from date of
settlement you will, if the proof is satisfactory, issue cash certificate
and receipt; and in the event that regular final proof is made, and the
full amount then paid, you will issue final certificate and receipt; but
when partial payments are made the receiver will issue a receipt only
for the amount of the principal and interest paid, reporting the same
in a special column of the abstract of homestead receipts, and at the
time last payment is made, you will issue the final papers as in ordinary
homestead entries.
In issuing final papers you will make the proper annotations thereon,
as well as on the applications and abstracts, as before directed, to show
that the entry covers lands in Port Cameron reservation.
You are further, advised that the same rule, as to the allowance of
credit for residence prior to entry and for military service, applies to
entries under said act of August 23, 1894, as to other homestead entries.
Where, upon submitting final proofs the entrymen elect to make
payment for the lands entered in five annual installments, you are
authorized to make the usual charges for reducing the testimony to
writing, but as the final certificate and receipt cannot be issued until
the last payment is made you cannot charge the final commissions
until said final certificate and receipt are issued.
Where the entrymen submit final proofs and elect to pay for the
lands in installments, you will not give said proofs current numbers
and dates but will, if they are acceptable to you, make jiroper notes on
your records showing that satisfactory proof has been made and the
dates upon which the partial payments must be made, and then trans-
mit said proofs to this oflBce, in special letters, and not in your monthly
returns, for filing with the original entries.
There are no guarantees to be taken in order to secure payment of
DECISIONS RELATING TO THE PUBLIC LANDS. 271
the installments, but if, when each installment is due, any entryman
fails to pay the same you will report the matter to this office when
proper action will be taken in the case.
Tbe said act of August 23, 1894, did not repeal the act of July 5,
1884 (23 Stat., 103), hence, parties qualified to make entry under the
second section of the latter act may do so without making other pay-
ment than the legal fee and commissions.
Sections 2, 16, 32 and 36 of this reservation are reserved for school
purposes.
On May 4, and August 5, 1895, you transmitted the applications of
John B. Murdock to be permitted to purchase, under the third section
of the said act of July 5, 1884, the S W. i S W. J Seel 13, NW. J I^ W. i Sec.
24, S.J SE. i Sec. 14 and the NE. J Sec. 23, T. 29 S., R. 7. W., sub-
divisions containing buildings x)urchased by him from the government.
Subsecjuently Mr. Murdock relinquished all claims to the SW, J
SW.^ Sec. 13, and the SW. J SE. i Sec. 14, T. 29 S,, R. 7 W. It there-
fore appears that the subdivisions containing buildings and which Mr.
Murdock is entitled to purchase are the following, viz: SE. J SE. J Sec.
14, the NE. i Sec. 23, and NW. J NW. J Sec. 24, T. 29 S., R. 7 W.
You will advise Mr. Murdock that he will be allowed sixty days from
notice hereof, within which to make application to purchase the last
mentioned subdivisions, upon which the buildings are situated, and to
pay therefor the appraised value where that is fixed at or more than
$1.25 per aore, and at the rate of $1.25 per acre for the subdivisions
appraised at less than $1.25 per acre, and inform him that if he fails
to make said purchase within the time specified the lands will become
subject to homestead entry by the first legal applicant.
Id case the application is made and tbe purchase money tendered
yoa will issue cash certificate and receipt, modified to suit the case,
making the following notation on the margins thereof: "Purchased
wider Sec. 3, act of July 5, 1884."
Issue notice to Mr. Murdock and in due time make report in accord-
ance with circular of October 28, 1886 (5 L. D., 204).
You will acknowledge receipt of this letter.
Very respectfully, B. F. Best,
Acting Gommissioner,
Approved March 22, 1897 :
C. N. Bliss,
Secretary
272 DECISIONS RELATING TO THE PUBLIC LANDS.
SETTLEMENT RIGHT— STATE SELECTION.
Benson v. State of Idaho.
No rights are secured by a settlement made for the porppse of securing the timlMT
on the land and not for the establishment of a home.
A State selection made prior to the official filing of the township plat is premature
and invalid.
Secretary Francis to the Commissioner of the General Land Office^ January
(I. H. L.) 8, 1897. (B. W. H.)
On July 16, 1894, Elmer £. Benson made application to enter, under
the homestead law, the W. J of the SE. J, the SE. J of the SE. J, Sec
8, and the SW. J of ttie SW. J Sec. 9, Tp. 39 N., R. 2 E., Lewiston land
district, Idaho. His application was rejected, on the ground that the
State of Idaho had selected the land under its grant for the support
and maintenance of an insane asylum, as provided by section 11 of
the act of July 3, 1890, for the admission of the State of Idaho into the
Union. (26 Stat, 215.)
On appeal to your office a hearing was ordered, which resulted in a
recommendation by the local office that Benson's homestead applica-
tion be allowed and the State selection canceled.
Upon the State's appeal from this decision of the local office, your
office declined to allow said homestead application, for the reason that
you were not satisfied from the testimony that —
Benson went upon the laud honestly and in good faith for the purpose of actual
settlement, and of honestly endeavoring to comply with all the requirements as to
settlement, residence and cultivation necessary to acquire title under the homestead
law, [l>eing] of the opinion rather that his purpose fi-om the first was speculative
only, in that he intended to ohtain the valuahle timher upon the land hy means of
a homestead entry, without complying with the conditions of the homestead law.
This conclusion is supported by the facts as they appear in the
record. Benson was an unmarried man. He first went upon the land,
which was covered with valuable timber, about April 24, 1894, cleared
about a quarter of an acre and laid eight small unhewn logs in square
form as a foundation of a cabin. In the latter part of May, or early
part of June following, he finished the cabin with logs of the same sort,
and after that did nothing more upon the land up to the time of the
hearing.
There is no disinterested testimony as to Benson's good faith, his
only witnesses being his brother Grin L. Benson, and Mace E. Kent,
both of whom had contests pending against the State's selection of
neighboring tracts, and who depended, each upon the other, for evi-
dence to support their claims.
Against this testimony the State produces two witnesses, Florence
and Jordan, the former a public officer and the latter his assistant,
who were employed by the State to make the selections under its grant
DECISIONS RELATING TO THE PUBLIC LANDS. 273
from Congress; and, inasmuch as the law (act of March 3, 1893,) pro-
vided that the preference right of selection for the period of sixty days,
given therein to the States, " shall not accrue against bona fide home-
stead and pre-emption settlers on any of said lands at the date of filing
of the plat of survey of any township in any local office of said States,"
it must be i)resumed, in the absence of evidence to the contrary, that
the Staters selecting agents used due diligence to discover evidences
of settlement, and were careful to avoid the selection of occupied
tracts.
Both Florence and Jordan, on behalf of the State, swear that they
went over this land in May, 1894, and saw no indications of settlement
or improvements alleged to have been made on the ground in April.
Upon weighing the testimony, I find that whatever settlement there
was on the land was only a colorable one, and made to anticipate the
filing of the map and the selection of the State, with a view to secur-
ing the valuable timber thereon, and not for a home.
In Dobie r. Jameson (19 L. D., 91), Little r. Duraiit (3 L. D., 74),
McWeeney v, Greene (9 L. D., 38), and many other cases, it is held that
'*the acts of settlement upon unsurveyed land must be of such a char-
acter, and so open and notorious, that the public generally may have
notice of the settlers' claims." The rule as laid down in Wright v,
Larson (7 L. D., 555), applies as well to this case as to entries under
the act of June 3, 1878. It is that " a settlement for the purpose of
securing the timber on the land, or for auy other purpose than estab-
lishing a home, is not a bona fide settlement within the meaning of said
OlCl*
Your decision declining to allow Benson's homestead application is
therefore aiHrmed.
Among the specifications of error in the claimant's appeal, is the
following:
Tbe Hon. Coram isdioner erred in not holding and deciding that the selection l>y
the State of Idaho, embracing the land in controversy, was prematurely made, and,
as snch, wa« and is absoUitely void.
It appears from the record that the plat of township 39, range 2 E.,
B. M., was received at the local office at Lewiston, on May 4, 1894, and
that George B. Florence, State selecting agent for Idaho, selected the
land in controversy on June 30, 1894, for the insane asylum (List Ko. 3),
under the grant contained in section 11 of the act of July 3, 1890 (26
U. 8. Stat., 215), providing for the admission of Idaho as a State into the
Union. The plat, however, was not officially filed in the local office
until July 2, 1894. Prior to this date, under rules established by the
Department, the land embraced in said approved plat was not subject
to entry or selection (4 L. D., 202),
In Campbell r. Jackson (17 L. D., 417), it is held—
lliat an apphcation to enter land, which is not subject to entry at the time tlie
Application is made, confers no rights upon the applicant. This was held in Goodale
lOdTl— VOL 24 18
274 DECISIONS EELATING TO THE PUBLIC LANDS.
V. Olney (13 L. D., 498), and iu Maggie Laird, on page 502 of the same Tolnme
The same rale would prevail in the case of a selection by a State, and it must be made to
appear, that at the time the State applied to select the land, it was subject to sncli
selection. Otherwise, no rights would be secured by the application.
In Lansdale v. Daniels (100 U. 8., 113), Mr. Justice Cliflfbrd said:
Beyond doubt the declaratory statement was a nullity, as it was filed at a time
when the act of Congress gave it no effect. The fact that it remained in tlie local
office will not remove the difficulty, as it was made and filed without autboritT
of law.
The Department makes no distinction between entries by individuals
and selections by States or corporations under Congressional graDts.
as to the time when their rights, respectively, attach, unless the lan-
guage of the grant itself makes an exception to the general rule, as
stated above, which is not claimed in the present case.
The State selection of the land in question, ma^le June 30, 1894, prior
to the oflBcial filing of the township plat on July 2, 1894, was therefore
premature and invalid. (William Berth, 22 L. D., 385.)
No right, however, accrues to Benson, because his settlement was
not bona fide and his application was speculative.
The land in question is still a part of "the surveyed, unreserved
and unappropriated public lands of the United States within the limits
of the State," and subject to selection by the State under the direction
of the Secretary of the Interior, as provided in section 14 of the act of
July 3, 1890, provided that, at the time of exercising its right, the land
is not occupied by a bona fide homestead settler or reserved under auy
other law for the disposal of the public lands.
PRAC?T1C:E— ORDER FOR HEARING-RAILROAD GRANT.
«
St. Louis, Iron Mountain and Southern Ry. Co. v. MoClaine.
An order for a hearing issued by the Greneral Land Office, on the appeal of an appli-
cant from the rejection of his application to enter, operates as a disposition of
said appeal, and its want of regularity is thereafter not material.
Land not protected by withdrawal and embraced within a bona fide settlement claim
is not subject to indemnity selection.
Secretary Bliss to the Commissioner of the General Land Office^ March
(I. H. L.) 15, 1897. (W. M. W.)
The case of the St. Louis, Iron Mountain and Southern Eailwav
Company v, John H. McClaine has bfeen considered, on the appeal of
the former from your office decision of November 9, 1895, holding for
cancellation its list of selection as to the E. ^ of the NW. J of Sec 17,
T. 22 N., E. 3 E., Ironton, Missouri, land district.
The land in question is within the indemnity limits of the graut to
the Cairo and Fulton Railroad Company, now the St. Louis, Lron Moan-
tain and Southern Railway Company by the act of July 22, 1866 (14
Stat., 338), and was selected by the company July 12, 1894, i)er list No. 1.
DECISIONS RELATING TO THE PUBLIC LANDS. 275
The withdrawal made in favor of said road was revoked August 15,
1887. See circular, 6 L. D., 131, 133.
The records of your office show that, ou June 6, 1869, one Gish made
homestead entry for the NW. J of Sec. 17, T. 22 N., R. 3 E., which was
canceled October 7, 1876; that on October 14, 1878, Austin Fuller made
homestead entry for the S. J of the NW. | of said section, which was
canceled on May 5, 1886; that on December 26, 1885, Andrew Inman
made homestead entry for the NE. J of the N"W. J of said section, which
was canceled May 26, 1893.
On August 3, 1894, John H. McGlaine filed in the local office his appli-
cation to make homestead entry of the tract in controversy, which
application was rejected for conflict with the selection made by the
raihoad company.
McClaine appealed to your office.
On June 20, 1895, your office considered McOlaine's appeal, and found
that he based it on ttie ground that he made bona fide settlement upon
this land May 28, 1894, with the intention of entering it under the
homestead laws; that on the same date
he applied at the local office of the clerk of the court of Kipley county, for the
purpose of making application to homestead this tract, but owing to his not being
familiar with the description of the land, he made out his application papers in
blank, and left them with the clerk until the proper description could be furnished,
ami feeling secure in his position as possessor in fact, he deferred perfecting his
application until August 1, 1894; that his improvements consisted of a dwelling
house, 19 by 25 feet, and about twenty acres cleared and in cultivatiou,
and that his improvements were made before the company's selection
and were worth about $1,050.
On this showing your oflBce directed a hearing, after due notice to
the parties in interest, to establish the exact condition of the land at
the date of its selection by the railroad company.
On September 6, 1895, the hearing was had, after due notice to
each of the x>arties. Both parties appeared by attorneys at the hear-
ing.
The evidence submitted at the hearing on the part of McClaine
shows, without conflict, that about October 1, 1893, McOlame and his
wife moved ou this land ; that at that time there were improvements on
the land, consisting of a log house and two stables j afterwards,
McClaine built a one- room log house, a frame smoke house, dug two cis-
terns and ma<le rails to fence a portion of the land; that on July 1,
1894, McGlaine had some of the land in cultivation; that McGlaine's
residence on the tract has been continuous since October, 1893. The
county clerk ot Ripley county, Missouri, testified that on May 28,
1894, McClaine went to his office to make out his homestead application
papers, for land embraced in Sec. 17, T. 22 N., R. 3 E., but was in
doabt as to the correct description of the land on which he settled, so
he (the clerk) filled out the blanks, except the description of the tract,
and McGlaine signed the papers and left them and the necessary fees
270 DECISIONS RELATING TO THE PUBLIC LANDS.
with the clerk; after that, and before August 1, 1S94. McGlaine aseer-
taiued the correct description of the tract he intended to enter, and
went to the clerk's office to get his application papeis, and thereapon,
at the suggestion of the clerk, executed a new application to euter,
dated August 1, and filed August 3, 1894.
The railroad company did not introduce any evidence.
The register and receiver made no decision, but transmitted the evi-
dence and record to your office, and, in view of the somewhat irregular
proceedings m the case, you exercised your supervisory authority aud
passed upon the whole record as it was presented.
On September 24, 1805, resident counsel for the railroad company
tiled a motion in your office to dismiss the appeal of McGlaine from the
action of the local officers of August 3, 1894, rejecting his application.
Said motion was based upon the ground that the appeal was not served
ui)on nor any notice thereof given to the railroad company.
Upon consideration of the case on the merits, your office set aside
the action of the local officers in rejecting McClaine's application,
as being contrary to the facts and merits of the case, and, under this showing, I will
hold that it is immaterial whether a notice of said appeal was served upon the
railroud, or whether he had filed any appeal.
Your office further found that
McGlaine had a bonajlde settlement and residence upon the land prior to its selectioa
by said railroad company, and also that he endeavored to make homestead entry for
the tract May 28, 1894.
In its appeal, the company alleges error in your office decision on
five grounds, all of which may practically be considered under two
general heads: 1. Did your office err in its action on the company's
motion to dismiss McClaine's appeal? 2. Was the finding of your oflice
erroneous in holding that McClaine's settlement and improvement od
the land were sufficient to defeat the railroad company's selection!
Each of these must be answered in the negative.
Your office evidently treated McClaine's appeal as an application for
a hearing, and as such found it was sufficient to justify an investi^^a
tion. The matter of ordering a hearing was discretionary with you.
KeeVes r. Emblen, 8 L. D., 444; Ulitalo r. Kline et al,,9 L. D., 377.
The action of your office in ordering the hearing has not been que.s-
tioned by the company. It is clear that your office had authority to
make the order for an investigation without notice to the railroad
company. When that action was taken it disposed of the appeal; the
case was not pending on said appeal at the time the motion to dismiss
it was filed, nor when it was decided on the merits. When the heariD^f
was ordered, in a legal sense, the whole case was sent back to the local
officers for disposition de novo by them in the light of such evidence as
might be adduced by the parties.
At the time your office decided the case on its merits, the case was
pending on the report of the register and receiver and the evidence
DECISIONS RELATING TO THE PUBLIC LANDS. 277
taken at tbe trial. The irregular manner in which the case on its
merits reached your office can not be held to revive the original appeal,
ill fact it had nothing to do with it.
The motion to dismiss clearly related to an immaterial matter.
From a careful examination of the evidence, the conclusions reached
bv vour office are concurred in.
PILVCTICE-NOTICE OF APPEAL— Bi:riU>EN OF PROOF.
Majors v. Rinda.
Rule 105 of Practice, providing for tho service of notices upon attorneys, is one of
convenience, and not of exclusive right; hence an appeal is not defective in the
matter of notice, if the service is made upon the appellee, and not upon hia
attorney.
The local officers, after due notice given, may inspect the premises in dispute, and
use the information thus obtained as an aid to the proper understanding and
valuation of the evidence adduced at the hearing.
The burden of proof is properly upon one alleging the mineral character of a tract
that has, prior thereto, been adjudged agricultural.
Sf'cretary Bliss to the Commissioner of the General Land Office^ March
(I. H. L.) ^-i, 1897. (E. B., Jr.)
This is an appeal from the decision of your office dated September
25, 1896, in a proceeding wherein Alexander Mjyors appears as con-
testant against the homestead entry of Venzel C. Einda, made January
21, 1895, for the SE. \ of the SE. i of section 13, T. 10 N., E. 4 W.,
Helena, Montana, land district, the grounds of Majors' contest, as set
out in his corroborated affidavit thereof, filed February 27, 1895, being
that the land is more valuable for the gold it contains than for agricul-
ture, and that he claims the same under placer locations made December
•3, 1894. The decision of your office was in affirmance of the decision
of tbe local office dated May 36, 1896, after hearing duly had June 17
to 29, 1895, and held the laud to be agricultural and not mineral in
character and dismissed the contest.
Mr, George B. Foote, attorney for Einda, has filed a motion to dis-
n)is8 the appeal on the ground that the same was not served upon him
f Foote) as required by the Rules of Practice, citing Eules 86, 104, and
105.
The rules are cited as follows:
Rule 86. Kotice of au appeal from the Commissioner's decision must be filed in
the General Land Office and served ou tbe appellee or bis counsel within sixty days
iVom the date of tbo service of notice of such decision.
Rule 104. In all cases, contested or ex parte, where tbe parties in interest aro
re])re8ented by attorneys, snch attorneys will be recognized as fully controlling the
cases of their respectiTe clients.
Rule 105. All notices will be served upon the attorneys of record.
278 DECISIONS RELATING TO THE PUBLIC LANDS.
It appears from the record that notice of your office decision was
mailed to Majors' attorney on October 2, 1896, and that on December
10, 1896, within the seventy days allowed in such case (Rule 87),
Majors, by his attorney, filed an appeal, a copy of which was received
by Einda, himself, the same day, having been mailed to him the day
preceding. It does not appear that any direct notice of appeal wa.s
given Eioda's attorney. None was necessary in view of the notice to
Einda (Sew Orleans Canal and Banking Go. v. State of Louisiaua,
5 L. D., 479; and Northern Pacific E. E. Co. v. Bass, 14 L. D., 443).
Eule 86 is specific and controlling as to the person to whom the notice
may be given. Eules 104 and 106, under the subhead "Attorneys,''
were intended to give due recognition to attorneys practicing before
the land department, in their representative capacity, but not to oper-
ate in any way to accord to them standing or authority there superior
to that of their clients, nor divest the latter of the right to recognition
and supreme control in litigation. Eule 105 is one of convenience and
not of exclusive right. The motion is accordingly denied.
Of the numerous errors assigned in the appeal, only three require
any consideration :
1. Error to hold that the burden of proof is upon the plaintiff.
2. Error not to tind that the locul officers ignored the weight of the evideuce and
rested their conclusion as to the character of the land upon al|eged tests made m
their {iresence upon the land and by partisans of the defendant procured by him for
the purpose and upon unsworn testimony there received by the local office and error
not to reverse their decision because thereof.
3. Error not to find that the land is shown to be mineral in character as a present
fact and more valuable for mining purposes than for agricultural purposes.
The land above described has been the subject of litigation before
the land department for several years. It is within the granted limits
of the Northern Pacific Eailroad Company, and adjoins the city of
Helena, Montana, on the north. Application having been made on
July 29, 1881, by Karl Kleinschniidt and others to make mineral entry
for the land, the said company and Einda filed protests against tlie
same, alleging the land to be agricultural. Upon the testimony sub-
mitted at a hearing in June, 1888, at which the mineral applicants
made default, the local office decided the land to be non-mineral.
Your office affirmed the decision of the local office, and on May 24,
1889, canceled said mineral application. A second hearing involving
the land was had in July, 1889, at which Einda, said company and
Majors were parties, the company claiming under its grant and Rinda
and Majors as applicants to make homestead entry therefor. The his
tory of this second case is given in Einda v. Northern Pacific R. R. C<>.
€t ah (19 L. D., 184). The right of entry was awarded by the Depart-
ment to Rinda, as against Majors, by virtue of his successful contest
against the mineral application of Kleinschmidt et al, and of his prior
homestead application, it being held that, despite his prior settlement.
Majors, who had previously made and relinquished a homestead entry
• DECISIONS RELATING TO THE PUBLIC LANDS. 279
for another tract, could not make a second entry under the act of
March 2, 1889 (25 Stat., 854), in the presence of Kinda's adverse claim.
Hinda's entry above mentioned, now under attack by Majors, was made
pursuant to this decision.
The decisions of the local office and your office in the first contest
involving this land and the entry of Einda pursuant to the decision of
the Department, were beyond question abundantly eflfective to bestow
upon this land a strongly agricultural status, and to place upon any-
one thereafter asserting its character to be mineral, the burden of
proof. The onus was therefore rightly placed upon Majors.
I am unable to discover from a very careful examination of the record
before me any evidence of irregularity, or of undue or improper influ-
euce by or in behalf of the defendant, in or in connection with the
visit of the local officers, July 17, 1895, to the land, and their personal
examination thereof. Their visit and examination were in pursuance
of motion and notice duly made and given, and it does not appear that
the information thus gathered by them was used by them otherwise
than as an aid to the proper understanding and valuation of the
evidence adduced at the hearing, nor that they sub.^tituted in any
extent their personal knowledge of the character of the land for
sach evidence. The second assignment of error is not therefore well
founded.
The testimony taken at the hearing is very voluminous, and, as to
the character of the land, very conflicting. At both previous hearings
hereinbefore mentioned Majors testified very positively that the land
was non-mineral in character. He had resided upon the land since about
April, 1882, be stated, and had had experience as a miner and ha4 pros-
I)ected it and was satisfied that it was not worth anything for mining
purposes. He testified at the hearing in the case at bar that when he
learned that the Department had awarded the land to Kinda he went
ahead and prospected it, and in the latter part of November, 1894, dis-
covered gold, and on December 3, following, located one-half of the
land as a placer claim for himself and the other half for his wife. Cer-
tified copies of these locations covering the entire forty acres are on
tile— the location for the north twenty acres made in the name of said
Majors and for the south twenty in the name of his wife.
It is not necessary to discuss the testimony as to the chara^^ter of
this land at any length. It has been very carefully read and consid-
ered. The land has been quite thoroughly prospected. According to
the testimony for Majors, gold, ranging from minute particles to nug-
gets as large as a pea, is quite evenly distributed throughout the
entire soil (which is gravelly, with some boulders), from the grass roots
down to an unknown depth ; and will pay from about two to six dollars
per day per man, with the use of water which can be readily obtained
at reasonable cost; and the land is of but very little value for agri-
calture. Rinda's witnesses testify that from extensive and careful
280 DECISIONS RELATING TO THE PUBLIC LANDS.
examinations of ground taken from the same shafts, holes, and iK)ints
on the surface, from which Majors and his witnesses obtained the
ground they tested, they (the former) conhl only get, at the best, a few
scant colors of gold and very often nothing at all; that the mineral
product of the land would not, at the utmost, amount to more than a
few cents per day per man with plenty of water and improved processes;
and that by the reasonable use of water and fertilizers the land is far
more valuable for agriculture than for mining. ^N'early all of the wit-
nesses for the respective parties testified that they were experienced
miners. The local officers who saw and heard the witnesses evidently
gave more credence to those of the entryman, Einda, and, I am con-
strained to believe, projierly so, from my reading of the testimony.
The burden of proof has not been successfully carried by Majors, and
his contest must therefore fail. I find no warrant to disturb the decisioD
of your office, and the same is accordingly affirmed.
PnACTICK— RErONSinER.VTIOX OF CASE-TrMBER C'l'L,TURE
APPLICATIOX.
Northern Pac^ific R. R. Oo. r. Ooffman et al.
Prior to tlie issnance of patent, the land department may re-opeu a case, t-o corrert
nn error in the decinion thereof, and readjudicate the same, after due notice to
tho parties.
The right secured hj a timber culture application, erroneously rejected and pending
ou appeal, may be exercised by the heir of the applicant.
Secretary JiliuM to the Commissiofier of the General Land Office^ March
(I. H. L.) ^.'7, 1897. (A. B. P.)
This case involves the SE. \ of Sec. 19, T. 15 N., R. 42 E., Walla
Walla, Washington.
The land was within the limits of the executive withdrawal on
amended map of general route filed by the Northern Pacific Railroad
Company February 2, 1872, and fell within the indemnity limits of said
company's grant on map of definite location of its road filed November
17, 18H0.
It appears that Thomas H. Coffman made timber culture application
for the tract in June, 1883, but the same was rejected by the local
officers because of confli(»t with the said withdrawal of 1872. Coffman
appealed.
On March 20, 1884, the company selected the land for indemnity pur-
poses under its grant.
The appeal of Coffman was considered by your office on October 2,
1888, and the decision below was reversed. Upon the company's
appeal to this Department, your office decision was, on August 8, 1894,
affirmed. Coffman was thereupon allowed thirty days after notice
within whicli to make timber culture entrv for the land, in which event
DECISIONS RELATING TO THE PUBLIC LANDS. 281
it was directed that the comijany's selection should be canceled, but
otherwise, his application would be finally rejected and the company's
selection allowed to stand.
On June 10, 1895, the local officers reported that notice had been
^iven as directed, by letter addressed to Ooffman at Colfax, Washing-
ton, but the letter had been returned uncalled for. Upon this report
3'our office, on June 2G, 1895, finally rejected Coft'man's application and
closed the case.
It further api>ear8 that on July 8, 1895, Maud A. Cottman filed in the
local office her affidavit, dated May 13, 1895, at Bexar county, Texas,
setting forth that she is the only child of Thomas Oofifhian, deceased;
that said Thomas Cofifman never exercised his right to muke timber
culture entry; and that at the date of his timber culture application
for the land in question, he was qualified to make such an entry. She
at the same time tendered the necessary fees, and formally applied to
be allowed to complete the timber culture filing of her father.
The affidavit and ax)plication were at once forwarde<l by the local
ofticers, and upon examination thereof your office, on August 3, 1895,
re-oi)ened the cswe for further consideration, and returned the applica-
tion papers to the local officers for appropriate action, with directions
that Miss Cofl'man be advised thereof, and allowed thirty days within
which to make entry for the land in accordance with the provisions of
the timber culture law (20 Stat, 113), if found qualified and entitled to
do 80, in which event it was further directed that the company's selec-
tion of tlve land be canceled.
From this action by your office the railroad company has appealed.
By the errors assigned in this appeal it is, in effect, asserted :
1. That having finally rejected the application of Thomas H. Coff-
man, on June 20, 1895, your office was without authority thereafter to
reopen the case in the absence of any motion for rehearing by either
party;
2. That Thomas H. Coffman having failed to make entry during his
life, it was error to allow his daughter to complete his timber culture
application by entry after his death, under the timber culture act; and
3. That in the absence of notice to the company, your office was
without authority to consider, in any manner, the ap])lication of
Maud A. Coffman.
The point raised by the first assignment is, in my judgment, wholly
nntenable. While it is true tlnit the case was formally closed, as
stated, and the company so notified by your office, it do€s not follow
tiiat the Land Department thereby lost jurisdiction of the land
involved, prior to patent to the company, so as to absolutely preclude
a reoi)ening of the case of its own motion, or upon application of any
party interested, in the event it should subsequently appear that the
action in closing the case was probably premature, or otherwise errone-
ous in any respect. Of course it would be improper to re-oi)en, and
282 DECISIONS RELATING TO THE PUBLIC LANDS.
proceed with the re-adjudication of a case without notice, but such does
not seem to have been done or attempted in this case. The records of
your office show that the attorneys of the appellant company were
advised by letter the very day the action complained of was taken,
not that the application of Miss Goffman had been allowed, but that
the case had been that day ** re-opened, with a view to the allowauce
of " said application, the letter closing with the statement: ^^ You will
take due notice hereof." This notice gave the company abuudaut
opportunity to reappear and do whatever was necessary to protect its
interests in the x)remises.
Nor is there, in my judgment, any merit in the third assigumentof
error. The simple act of re-opening the case was in no sense a read-
judication of any question involved in it, and from the very nature of
the proceediug, could not be. Notice of that act was duly given, and
the company was thereby afforded every opportunity of defending the
newly presented application that it could have had, if it had been noti-
fied before the case was reopened. There has been, as yet, no final
action in the case in favor of Miss Coftman. She appears to have been
allowed by the local officers to make timber culture entry for the land,
on September 11, 1895, and the entry papers were forwarded to yoiu*
office, and are filed in this record (though not i)roperly a part thereof),
but there has been no action thereon by your office. The company has
still the right, and will be allowed to appear and protect its interests
in the premises, by interposing such defense as it may wish. While,
therefore, it would have been the better practice, upon the receipt of
the application of Miss Coffman, to have notified the company to show
cause, if any it (jould, why the case should not be reopened lor the
consideration of that application, yet I do not think the failure to do
so, was, under the circumstances of this case, reversible error. As the
company still has opportunity to make any defense not now properly
X)reseuted by its said appeal, I do not see that any good could be
accomplished by sustaining its appeal in this particular even were it
otherwise proper to do so.
The second assignment of error goes to the merits of the controversy
as far a« they can be determined at this stage of the proceeding. It
involves a denial of the right of Maud A. Oofimau, as the legal heir of
Thomas IL Coflman (if indeed she is such) to complete the latters
application or tiling by entry niider the timber cukure law. The facts
on this point are that Thomas H. Coffman while in life, did everything
he could do toward perfecting his entry. He filed his application U>
enter as early as June, 1883, and tendered the necessary fees, as shown,
but the same was rejected for the reasons stated, which action was
afterwards held to be erroneous by this Depai*tment. But for this
erroneous action his entry would have been allowed and in all proba-
bility, before this time, passed to patent. Thus by the erroneous
action of the local office he was prevented from making any further
DECISIONS RELATING TO THE PUBLIC LANDS. 283
eoiupljauce with the timber culture law, aud was compelled to await
the final acyudication of his rights upon his appeal, which he did, and
although his appeal was filed in 1883, it was not acted upon until 1888,
a seemingly unreasonable delay, due to no fault of his. By his affida-
vit filed in this case October 27, 1887, it appears that at that date ho
had erected two miles of fence on the land (presumably enclosing it) at
a cost of $320. He also, at the same time, filed a renewal of his appli-
cation to enter the land, but no action appears to have been taken
thereon.
Can his heir now complete his entry, and by further compliance with
the law thereunder save the land and the improvements thereon?
In the case of Southern Pacific Bailroad Company v. Sturm (2 L. D.,
546), which arose under the timber culture law, and was in some respects
similar to this case, Secretary Teller held :
Althoagh Sturm did not actually make aa entry of the tract, he uevertLeless
applied in good faith so to do aud tendered the requisite fees And Just as
there is no difference in principle between a case where the filing was recorded aud
ODB where the filing was offered and rejected, neither is there any difference iu such
a case as this, sof ar as the applicant's rights are concerned, for they inure to the
benefit of the heirs. That the tract was subject to his entry cannot, in the light of
the aforesaid state of facts, be questioned. His right to enter the tract was not
prejudiced by the register and receiver's denial of his application. See Duffy r.
Northern Pacific Railroad Company (2 Copp, 51), aud Shepleyct a/, r. Cowan et ah
(91 U. 8., 330).
But inasmuch as he was prevented by death from perfecting his application, entry
will be allowed iu proper form in the name of his heirs, provided the same is made
within ninety days from receipt of notice hereof.
The principle announced in that case has been followed by the Depart-
ment in a number of cases. In Tobias Beckner (6 L. D., 134-7) it was
said:
The broad underlying principle that controls the qnestion is — that when a person
initiates any right in compliance with, aud by authority of the public land laws, aud
tlies before completing or perfecting that right, it will not escheat and revert to the
government, but inure to those on whom the law aud natural justice ca^t a man's
property, and the fruits of his labor after his death.
See also the case of Eosenburg v. Hale's Heirs (9 L. 1)., 161), • O'Con-
ner v. Hall et at. (13 L. D., 34); Thompson r. Ogden (14 T.. D., 05);
Bellamy v. Cox (24 L. D., 181).
Iu the present case the right of entry was lawfully iuitiated by
Thomas H. Coffman by the filing of his application and the tender
by him of the requisite fees; imd he appears to have done all he could
to perfect his entry while in life. The land was undoubtedly subject to
entry when his application was presented; and, therefore, the right
initiated by him could not be prejudiced by the action of the local offi-
cers in rejecting his claim.
Under the authorities cited, I am of the opinion that upon his death
the right thus initiated, though uncompleted, inured to his heirs, and
that they should be allowed to x>erffect the right by entry under the
284 DECISIONS RELATING TO THE PUBLIC LANDS.
timber culture law. The application of Maud A. Coffman, as sncli beir^
however, is not before me for action on this appeal, and no (juestion
relative to that application as allowed by the local officers is intended
to Imj decided. All that is now decided is that the lawful lieir or heirs,
if any, of Thomas H. Coffman should be allowed to perfect the entry
initiated by him. Whether Maud A. Coffman has proi)erly shown her-
self to be such heir is not a question now before me. Upon that (jnes-
tion the company will he allowed ample opiK)rtunity of proper defense.
In view of the foregoing, I find no error in the decision appealed
from, and the same is therefore affirmed.
LAND RKSEUVKI> FROM KXTKV-APPLICATIOX.
Lowell D. Teter.
Lands embraced within a departmental order directing tueir reservation until ftir-
th«.*r instructions are not subject to entry during thi* pendency of said order.
Secretary BIvsh to the ComminHioner of the General Land Office, March
(I. IT. L.) ;?>, 1S97. (C. J. G.)
1 have considered the api>eal of Lowell 1). Teter from your office
decision of March 29, 1895, wherein is affirmed the action of the l(»oal
office in rejecting his homestead application for the W. i of SW. \^ Sec.
13, T. 17 N., E. 2 E., Guthrie land district, Oklahoma.
The said application was rejected
for the reason that the schedule of lands opened to settlement by tho President's
proclam.ation dated September 1^, 1891, on September 22, 1891, does not show tract
described to be open to entry.
The record shows that the land in question was embraced in allot
ment No. 104, made to Sydney, an Iowa Indian. The said allotment
was approved by the Department and patent regularly issued therefor.
Subsequently, under the provisions of the act of October 19, 188S (2.1
Stat., G12), the said Indian relinquished said land to the United States,
and the patent therefor was canceled. At the same time your office
was ''directed to reserve the lands thus relinquished until further
instructions concerning the disposition of them.''
If there were any question as to the proper disposition of the land
embraced in this allotment after its relinquishment by the allottee and
the cancellation of the patent, or from whatever cause, the Secretary of
the Interior undoubtedly possessed the power and authority to hold
said land in reservation subject to future instructions. Pn the case of
Wolsey r. Chapman (101 V. S., 755) the supreme court held that the
act or order of the head of a Department, within the scope of his power
or authority, is in contemplation of law, the act or order of the President.
So long, therefore, Jis the instructions referred to remain unrevoked,
DECISIONS RELATING TO THE PUBLrlC LANDS. 285
the land in question is not subject to entry. Accordingly the action of
your office in rejecting the appellant's application to enter said land
was entirely proper.
Your said office decision is hereby affirmed.
INDIAX LAXDS— PATENT- ACT OF .TAXirAKY 26, 1895.
Hardy v. McClellan et al.
The patenu) issaed ou Indian allotments in the Cherokee Outlet were not conditional^
but conveyed a fee simple title, and the Department is consequently without
jurisdiction over the lands covered by said patents.
The act of January 26, 1895, authorizing the Secretary of the Interior to cancel
patents issued ou Indian allotmcuts, for the correction of mistakes therein, is
limited in its operation to a specified class of trust patents, and is not applicable
to a patent that conveys a title in fee simple.
Secretai-y BUhh to the Commissioner of the General Land Office^ March
(I. H. L.) 25^ 1897. (E. M. E.)
This case involves the SE. \ of Sec. 23, T. 27 N., K. 1 W,, Perry,
Okhihonia. '
The record shows that this tract of land is covered by Cherokee
Indian allotments Nos. 56 and 57, made on behalf of John F. McClellan
and Mary E. McClellan, and were approved by the Department on
September 8, 1893, and patents issued thereunder on November 18, 1893.
Jane 17, 1895, Noah Hardy made homestead application for the above
described land, which was rejected by the local officers on account of
the allotments made to the McClellans.
An appeal having been taken, your office decision of August 27, 1895,
was rendered, aflfirming the action of the local office, from which decision
Hardy appeals to the Department, alleging —
that the said appellees obtained this land fraudulently by allotment wherein the
agreement between the United States and the Cherokee Indians providing for allot-
ments were not complied with by these appellees. That this land so allotted is not
DOW nor never was used for farm purposes and that they have not now and never
had any valuable farm improvementSi that these appellees had not lived in that part
of the territory and at tho time provided by the proclamation and the law governing
tliesc allotments. That they did not conform to the wishes and requirements of the
association of settlers on the Cherokee strip and that these appellees were not enti-
tN'd under the law to these allotments. That patents were erroneously issued by
the Tnited States to these appellees for this land —
wherefore the appellant asks that the patents be canceled.
There is contained in the record the affidavits of James W. Hamilton
aud A. J. Blackwell — that of the former being as follows:
Personally appeared before a notary public came James W. Hamilton who upon
his oath says that he is acquainted with, and has been since about 1872, the tract
now known as John F. McClellan and Mary E. McClellan allotments, viz. The south-
eut quarter, section 23, town. 27 range one west of the I. M. and knows that there
286 DECISIONS RELATING TO THE PUBLIC LANDS.
never was any sign of any permanent and valoable farm improvements of any kind
or description ever made upon said land 1)y any Indian or any other person prior to
1891, and that there was never any improvements of farm nature, made upon any
lands adjoining or in the vicinity of said land by Charles M. McClellan or the allot-
tees of said land. That he has for several years known that the home of the allottees
and Charles M. McClellan and family was in the Indian Territory east of the 96
but that said Charles M. McClellan had at one time a cattle ranch npon the eastern
portion of the strip or triangle part of the Cherokee outlet.
In the affidavit of Black well the only material portion sets forth that
the McClellan allotments had originally been located aboat six miles
east of where they are now located, but that one Owens, whom be
alleges had a contract with Charles McClellan, succeeded in ha\'ing
them located adjacent to the towusite of Blackwell.
By the act of Congress of March 3, 1893, 27 Stat., 612, page 641, in
speaking of the Cherokee outlet, after reciting that a commission bad
been appointed to ent«r into an agreement with these Indians, it is
stated that —
said aj^eeinent is fully set forth in the message of the President of the United State5;,
communicating the same to congress, known as executive document numbered iifty-
six, of the first session of the Fifty -second Congress, the lands referred to being com-
monly known and called the '^ Cherokee Outlet;'' and said agreement is hereby rati-
fied by the Congress of the United States.
Article live of that agreement, as found on page IS of said document
is as follow^s :
Fifth. That any citizen of the Cherokee nation who, prior to the first day of
November, 1891, was a bona fide resident upon and further had, as a farmer and for
farming purposes, made permanent and valuable improvements upon any part of tbe
land herein ceded and who has not disposed of the same, but desires to occupy the
particular lands so improved as a homestead and for farming purposes, shall have
the right to select one-eighth of a section of land, to conform, however, to the I'nited
States surveys ; such selection to embrace, as far as the above limitation will admit,
such improvements. The wife and children of any such citizen shall have the same
right to selection that is above given to the citizen, and they shall have the prefer-
ence in making selections to take any lands improved by the husband and father
that he can not take until all of his improved land shall be taken.
That any citizen of the Cherokee nation not a resident within the land herein
ceded, who, prior to the first day of November, 1891, had for farming purposes made
valuable and permanent improvements upon any of the land herein ceded, shall have
the right to select one-eighth of a section of land to conform to the United States
surveys; such selection to embrace, as far as the above limitation will admit, such
improvements.
In the agreement made for the cession of the Cherokee outlet it is
provided that —
It is further agreed and understood that the number of such allotments shall not
exceed seventy (70) in number and the land allotted shall not exceed five thoiisaii<l
and six hundred (5,600) acres ; that such allotments shall be made and confirmed
under such rules and regulations as shall be prescribed by the Secretary of the Inte-
rior, and when so made and confirmed shall be conveyed to the allottees, respectively,
by the United States in fee simple.
In other words, that the patent given should convey absolutely tbe
DECISIONS RELATING TO THE PUBLIC LANDS 287
title of the governmeDt. And in fact the patents issued under this
agreement were unconditional and conveyed a fee simple title.
The act of January 26, 1895 (28 Stat., 041), is as follows:
That in all cases where it shall appt^ar that a double allotment of laiul has hereto-
fore heen, or shall hereafter be, wrongfully or erroneously made by the Secretary
of the Interior to any Indian by an assumed name or otherwise, or where a mistake
has been or shall be made in the description of the land inserted in any patent, said
Secretary is hereby authorized and directed, during the time that the United States
may hold the title to the land in trust for any such Indian and for which a condi-
tional patent may have been issued, to rectify and correct such mistake and cancel
any patent which may have been erroneously and wrongfully issnod, whenever in
his opinion the same ought to be canceled for error in the issue thereof, or for the
hest interests of the Indian, and, if possession of the original patent can not be
ohtained, such cancellation shall be effective if made upon the records of the General
Land Office; and no proclamation shall be necessary to open the lands so allotted to
settlement.
The question presented for determination is: Do the facts set forth
present such a case as comes within the purview of that act?
In the first portion of the act it is said: "That in all cases where it
shall appear that a double allotment of land has heretofore been, or
shall hereafter be, wrongfully or erroneously made," that the Secretary
of the Interior would have the authority to cancel such patent.
But there has been no double allotment in this case; and whilst the
rest of the language in the statute is broader, it will be construed as a
whole, and the same general language following thereafter will, if pos-
sible, be construed as carrying out the object first set forth.
It is further noted that the act apparently contemplates the cancel-
ling of patents only where the patent itself is a "conditional patent."
For, after speaking of errors that might be corrected by the Secretary,
it is said-
Said Secretary is hereby anthorized and directed, during the time that the United
Slates may hold the title to the land in trust for any such Indian and for which a
couditional patent may have been issued, to rectify and correct such mistake and
cancel any patent. ,
I am therefore of opinion that the case presented is one which does
not fall within the purview of the act, and the x)atent issued to the
tracts in controversy not being a conditional one, the Department is
ousted of jurisdiction.
The decision appealed from is therefore affirmed.
288 DECISIONS RELATING TO THE PUBLIC LANDS.
TlMBElt CULTURE ENTRY— EQUITABLE ACTION.
Carter r. Davidson.
Where the notice of the expiration of the statutory life of a timber culture entry i»
not given in accordance with the addresH furnished in the entry papers, and the
entry is thereafter canceled for failure to submit final proof within the statutory
period, such entry should be reinstated ; and equitable action thereon will not \*e
defeated by the intervening entry of another, if good faith is manifest, and the
final proof shows due compliance with the law in all respects except in the mat-
ter of submitting proof within the statutory period.
Secretary BIUh to the CommittHioner of the General Land Office^ March
(L 11. L.) x>5, lSf)7. (R. W. H.)
It appears from the record in this case that Arthur M. Davidson
made timber culture eutry Xo. 2736 for the S W. J, Sec. 9. T. 0 N., R. 42 W.,
McCook land district, Nebraska June 27, 1879; that October 10, 1894,
tlie local office reported the entry for cancellation on account of tbe
expiration ol* the statutory period without proof; and said entry was
canceled by your office October 25, 1894, for this cause; that, March 31,
1895, John D. Carter made homestead eutry No. 10901 for the tract:
that, May 1, 1895, Davidson made final proof showing the cultivatiou
and planting of ten acres, there being at that date live hundred tree:>
to the acre, and one hundred acres in cultivation.
Sui)pleniental testimony was submitted by Davidson and his wit-
nesses to the efi'ect that his entry was made in good faith; that it had
always been his impression that he was entitled to sixteen years within
which to make proof, having learned the contrary only two weeks sinee:
that he never received notice of the expiration of the statutory period,
which he would have done had the same been addressed to the post
office nearest the land, viz: Earl, six miles distant, whereas they were
sent to Elwood, sixteen miles away, in a different county, and to Homer-
ville, which was discontinued as a post office long before the notice was
sent.
Davidson further alleges that he had made arrangements for making
proof August 1, 1894, but on July 15, 1894, having been thrown from a
wagon, received such serious injuries that he was confined to the house
until November, 1894, and thus prevented during the winter from going
to the land office, and will be a cripple for life. He states that about
March 30, 1895, he was approached by a man, since learned to be John
D. Carter, who made iuciuiries regarding his timber culture claim, and
has since made entry therefor. Further that he has been obliged by
reason of crop failures and other misfortunes to mortgage his home
stead claim, and if his timber culture proof is rejected, he will be
deprived of long years of toil. He therefore prayed for the i-einstate-
ment of his entry, acceptance of his proof, and cancellation of the
entry of Carter.
DECISIONS RELATING TO THE PUBLIC LANDS. 289
A pbysician^s certificate dated May 5, 1895^ sets forth the fact of
Davidson's aceideut and its consequences, from which, it states, he will
never entirely recover.
lu transmitting; these papers the local officers report that, not bein^
informed of tbe address of Davidson, the offices to which notices were
addressed were taken from an old map on which the coanty lines were
not well defined; and the fact tbat the land was in Frontier countr
was not observed until their attention was called thereto at the time of
proof. The local office found the proof satisfactory, and also that the
failure to submit the same within the statutory period, was due, to his
ignorance of the law and that he is equitably entitled to the land.
The time witbin which Davidson should have made proof expired
June 27, 1892. Your office held that the notices addressed to David-
son at Elwood (which were returned unclaimed) not having been sent
to ** Frontier county," the place of his residence as stated in the entry
papers, nor any known address of the claimant, cannot be considered
the notice required by law.
In view whereof the cancellation of Davidson's entry was found
irregular and void. It was ordered that Carter, the adverse claimant,
be notified, and that thirty days be granted him to show cause why bis
homestead entry Ko. 1096L should not be canceled, and the timber cul-
ture entry of Davidson be reinstated.
July !*.», 1895, the affidavit of Carter, uncorroborated, made July 1,
1895, was forwarded to your office, in which he stated his grounds of
complaint and asked for a hearing to sustain them, unless deemed suffi-
cient as presented. Your office held that Carter's application did not
present sufficient grounds for a hearing, and it was denied.
He then moved for a review of your decision, which resulted in it»
modification in several non essential respects, but you adhered to your
"former ruling that Davidson, having given 'Frontier county' as his
residence, without further specifying his address, he was entitled to
notice mailed to ' Frontier county,' or to tbe post office in Frontier county
nearest the claim."
In connection with your decision on this point you state that,
It seems from the statements made by the register and receiver that notice won Id
have been sent to some post office in Frontier connty, bat for the mistaken idea that
Dayidson'R claim was in Gosper connty, into which oonnty the notices were sent.
Carter's motion for review was accordingly denied, and he appeals
from both of your said decisions, alleging that it was :
(1) Error to accept the ex parte statements of Davidson as a basis
for the restoration of a canceled entry, an adverse right having attached,
without first calliDg a hearing in which all parties could be heard.
(2) It was error on the part of the Commissioner to refuse him a
hearing when applied for under oath, and under the showing made.
(3) It was the fault of the entry man that he did not furnish the local
office with his address at the time of making entry.
10071— VOL 24 19
290 DECISIONS RELATING TO THE PUBLIC LANDS.
(4) ^o valid or even plaasible excuse is given by Davidson as to bis
fuilare to make proof within the statutory time.
(5) It is error on the part of the Commissioner to hold that notice
should have been sent to ^^ Frontier county," when no address is given,
us it would never leave the McCook post office, but would be returned
to the writer from the office where mailed or sent to the Dead Letter
Office &c.
Without observing the exact order in which these specificatious are
presented I find the reinstatement of Davidson's entry on the ground
that it had been canceled without notice to the entryman as required
by law, was proper; and it api)earing that the fact that such notice
had not been served was officially known to aud certified by the ]ocal
officers, it was not necessary to order a hearing, notwithstanding
another entry of the tract had been inadvertently allowed.
The only question in the case is whether there was such notice to
Davidson as the law requires. It is admitted that he did not receive
actual notice. He had given no other address at the local office than
"Frontier county" — a circumstance which may be explained, i>erhaps,
by the necessity of frequent changes in post office addresses to meet
the needs of new settlements.
It is also in evidence that the local officers, in sending out the notices
to Davidson, were misled by an old map in which the county lines were
not well defined, and instead of sending them to some office in << Fron-
tier county" sent them to offices in Gosper county. They state, that
but for this mistake, the notices would have been sent to an office in
Frontier county. Davidson was an old settler, well-known at the
county-seat and throughout the eastern part of the county where his
entry was made, and it is reasonable to conclude that if a notice had
been sent to the county-seat or to any office near the land in "Frontier
county" it would have reached him.
I agree in the conclusion of your office that Davidson
was entitled to notice in accordance with the address as mentioned in his entry
papers, viz : Frontier county, or the oflBce in that county nearest the land.
The only difficulty in the case arises from the flEKst that Davidson
failed to make his final proof within the period prescribed bylaw. His
entry was on June 27, 1879 ; its life expired June 27, 1892; and his final
proof was not made until May 1, 1895.
The excuses he ofiers for his default — that he was ignorant as to the
time when his proof ought to have been made, and, also, that he was
disabled by an ai^eident, which occurred after the statutory period of
his entry, are of no avail against the plain requirement of the law.
The fact, however, that Davidson's good faith is not questioned, and
that he has fully complied with the timber culture law in every respect,
except as to the time of making proof— it appearing that for the perioii
•of ten years last preceding that ten acres of timber had been plauted,
<:ultivated and protected and were kept in a healthy growing condition,
DECISIONS RELATING TO THE PUBLIC LANDS. 291
that the trees were of an average diameter of three inches and au
average height of from eight to fourteen feet, consisting of ash, box
elder, elm, mulberry, with a few cotton wood trees, — 5,168 by actual count,
being more than five hundred to the acre — entitle his claim to equitable
consideration.
The cancellation of Davidson's entry without notice being void for
want of jurisdiction — said entry must be regarded as legally subsisting
at the date of Carter's homestead. The latter is not, therefore, such
an adverse claim as will defeat equitable confirmation of Davidson's
entry. Carter's homestead entry will therefore be canceled, and David-
sou's timber-culture entry after reinstatement upon the record will be
submitted to the board of equitable adjudication for its consideration
and action.
SOLBFER'S ADDITIONAL HOMESTEAD-ACT OF AUGUST 18, 1804.
ROBOBDS V. Lakby ET AL.
Umler the act of An^st 18, 1894, an entry made on a certifioate of a soldier's addi-
tional homestead right is valid, and must be approved, where the land is held by
a bona fide purchaser, though the issuance of the certificate may have been
secured through fraud ; and the patent in such case should issue in the name of
the assignee.
Secretary Bliss to the Commissioner of the General Land Office^ March
(I. H, L.) 55, 1897. (E. B., Jr.)
This is a contest for title to the K J of the SE. \ of Sec. 31, T. 21 N.,
B. 3 E., Helena, Montana, land district. On November 1, 1882, Simon
Lakey, who had previously made original homestead entry at Spring-
field, Missouri, for eighty acres of land (final certificate Ko. 4315,
issaed December 19, 1881, patented August 5, 1882), executed an appli-
cation for a certificate of right to enter, under section 2306 of the
Kevised Statutes, an additional eighty acres of land. This application
and evidence in support thereof tending to show service by Lakey in
Co, "I", 46th Mo. Vol. Inf., were filed in your office in December, fol-
lowing, by W. 0. Hill, then a resident attorney.
On March 19, 1893, your office rejected said application upon the
ground that the evidence showed that said Lakey was not the person
who performed the military service above indicated. Subsequently,
under a power of attorney from Lakey to L. D. Stone, dated February
7, 1889, to make application for, select, locate, receive duplicate receipt
of entry for, and demand, receive, and receipt for patent, for any laud
to which he might be entitled under said section 2306, Lakey's applica-
tion was by some means, which do not appear, revived and allowed,
and such certificate was issued by your office February 26, 1889. Act-
ing under an appointment as attorney in fact of Lakey, made by Stone
under a iK)wer of substitution in said power of attorney, one Ashburn
292 DECISIONS RELATING TO THE PUBLIC LANDS.
K. Barbour, on May 4, 1889, entered in the name of Lakey at Helena,
Montana (final certificate No. 1381), the laud above described, aa an
additional homestead. This entry has been the subject of repeated
attacks, on the ground of fraud, by different parties, commencinj^ with
that made by one Amy Oregg November 19, 1890. The history and
disposition of certain of these attacks is set out in decisions of the
Department in case of Gregg v, Lakey, dated May 11, 1892 (unreported),
and January 10, 1893 (16 L. D., 39), and in Gregg et al. v. Lakey, dated
July 7, 1893 (17 L. D., 60), and need not be recited here.
The present contest by £zra M. Bobords, referred to in said decisions,
was initiated October 20, 1891, and charged that said additional entry
was fraudulent in this, that Simon Lakey, who made said original
homestead entry, final certificate No. 4315, at Springfield, Missouri, had
not rendered service as alleged, nor rendered at any time the service
necessary to entitle him to make said additional entry; that said origi-
nal entry was not made under section 2304 bat under section 2289 of
the Eevised Statutes; and that said Lakey had knowingly, wilfully
and fraudulently, in the matter of said additional entry, i)ersouated
his uncle Simon Lakey, then of Douglas county, Missouri, who had
served from October, 1864, to May, 1865, in the company and regiment
hereinbefore mentioned. On June 2, 1892, your office ordered a hearing
upon these charges of Bobords.
In its decision of July 7, 1893 {aupra)^ the Department said, among
other things:
In promulgating the departmental decision of May 11, 1S92, yon directed a hear-
ing on the contest of Robords. Such hearing was suspended by the filing of motion
for review. After that motion was denied, you ordered said hearing to proceed, but
it is now again suspended by the motion for rereview
On the 29th of March, 1893, Lucius B. Kendall, who described himself as a party
iu interest, filed a motion,*^ asking that the pending motion for re-review, filed by
Amy Gregg, be dismissed, and that departmental decisions of May 11, 1892, and
January 10, 1893, be sustained, in so far as they dismiss the claims of said Gregg,
and reveised and set aside, in so far as they recognize the rights of Ezra M. Robonls
to contest said soldier's additional homestead entry ; that the homestead application
of Burlingame for the land be rejected, and his pending appeal be dismissed; and
that the entry of Lakey be confirmed, and he (Kendall) be allowed to purchase
under the act of March 3, 1893.
His motion is supported by his aflBdayit, in which he makes oath that said entry
was made upon a certificate of the Commissioner of the General Land Office, of tbe
right to make the same; that said land was conveyed to him by warranty deeil on
the 4th of May, 1889, for a valuable consideration, to wit, $3,000; that he purchased
the Innd in good faith, without any knowledge of the fact that the certificate to
said Lakey had been Iraudnlently procured ; that there are no adverse clainiauU to
the land, which fact the official record will prove, and that he is still the owner
thereot. He further states that the invalidity of the certification to the said Lakey
has been clearly established by affidavits now in the record ; that by the confiritm*
tion of this certificate he will not acquire more than one hundred and sixty acres
of public land, and he asks that he be permitted to perfect his title by paying the
government price for said land, ns provided in the act of March 3,1893(27 Stat., 593).
To his affidavit is attached an abstract of title to the land, certified to by the
DECISIONS RELATING TO THE PUBLIC LANDS. 293
clerk and recorder of ho county, which shows the title to be in Kendall, his deed
therefor h«aying been recorded on the 6th of May, 1889.
Among nauierouB other things, the act of March 3, 1893, provides:
*'That where soldier's additional homestead entries have been made or initiated
upon certificates of the Commissioner of the General Land Office, of the right t-o
make such entry, and there is no adverse cluiuiant, and such certificate is fonnd to
he erroneous, or invalid for any cause, the purchaser thereunder, on making proof
of such purchase, may perfect his title by payment of the government price for the
land ; but no person shall be permitted to acquire more than one hundred and sixty
acres of public land through the location of any such certificate."
If all the matters stated in the affidavit of Kendall, filed in support of his motion,
are true, he is brought witbin the provision of law quoted above. I can not accept,
however, without further proof, his statement that the entry was made upon a cer-
tilicato issued liy you on the 26tb of February, 1889. Neither does he make it satis-
factorily appear that such certificate is found to be erroneous or invalid. These facts
must be clearly established, in order to entitle him to the benefits of the act of March
3, 1893
You will direct the local officers to proceed with tl^ hearing ordered by you on
the 2d of June, 1892, on the charges of Kobords, against the entry of Lakey, that the
truth as to the charge made that Simon Lakey was not a soldier may be ascertained,
and whether this fact was kuown to Kendall before his purchase.
Upon the showing made by Kendall, on his motion now before me, he will be
allowed to intervene at such hearing, and submit any proof which he may desire, to
establish his interest in, and title to the land in question.
The decision of .luly 7, 1893, eliminated Amy Gregg as a party from
the case and denied the application of one J. M. Burlingame Jr. to be
allowed to intervene therein. By departmental decision of October 13,
1893, George W. Bird, claiming to be a transferee of the entryman
Simon Lakey, was allowed to intervene in the case. A hearing was
bad December 13, 1893. The day following, the local office rendered a
dedsion dismissing Robords' contest. Eobords appealed, and on July
14, 1894, your office remanded the case for hearing de novo. By reason
of various causes of delay, recited in the decision of the local office
duted March 5, 1895, but not necessary to be narrated here, the date of
the hearing was not fixed until March 11, 1895, when, as reported by the
local office, "all parties of interest were cited to appear at this (local)
office May 13, 1803, for the trial of the cause." The hearing was not
finally concluded until December 16, 1895. All parties were repre-
sented at the hearing except Lakey, who, the local office reports, made
default. Robords oflFered no testimony at the hearing, but was repre-
sented there by counsel.
The local office heUl that the fraudulency and invalidity of the certifi-
cate issue<l to Simon Lakey, upon which entry was allowed, was "fully
established by the testimony adduced by Kendall," but that said " cer-
tificate and its assignment before entry are in all respects confirmed
and validated by act of August 18, 1894 (John M. Rankin, on rereview,
21 L.^ D., 404)," and that patent should issue to Simon Lakey, and
recommended the dismissal of Robords' contest, and the rejection of
the applications of Kendall and Bird to purchase under the act of
March 3, 1893 {supra). Upon appeal by Robords your office affirmed
294 DECISIONS RELATING TO THE PUBLIC LANDS.
the decision of the local office qa to Bobords aud Bird, holding that
Robords ^^ was a party to the fraud in procuring the issuance of said
certificate,-' and that Bird's alleged interest was acquired subsequently
to and with full knowledge of the sale and conveyance to Kendall, bat
held that the act of August 18, 1894 (28 Stat., 397), gave Kendall no
right not already given him by the act of March 3, 1893, and that his
application to purchase under the latter act would be allowed. Appeals
by Bird and Bobords now bring the case before the Department.
It clearly appears ft*oni the e\idence that said certificate was procured
by fraud and that Bobords was the chief instrument in perpetrating
the fraud. He induced Simon Lakey, the nephew, to make application
for the certificate, leading him to believe that a short service, which
said Lakey informed him he (Lakey) had had in the Missouri militia in
18G5, entitled him (Lakey) to such certificate and additional homestead,
and himself (Bobords) making or procuring to be made the false repre-
sentations of service by Simon Lakey as hereinbefore charged by him
(Bobords), Due to the agency or instrumentality of Bobords, appar-
ently, the second and successful effort for the issuance of said certifi-
cate was prosecuted, the said power of attorney to Stone was procured,
aud a sale by Lakey of his supposed right to make additional entry
was effected. Stone paying Lake $200 therefor. The allegations of
Kendall as to the purchase by him in good faith and conveyance to
him of s;dd land by Simon Lakey, the entryman, are shown to be true.
A wai ranty deed from said Lakey and wife, duly executed May 4, 18S9,
by Ashburn K. Barbour, as their attorney in fact, under a jiower of
attorney previously given, conveyed said land to said Lucius B. Ken-
dall. In addition, said Lakey and wife executed a confirmatory deed
to the land, to said Kendall, April 15, 1893, ratifying and confirming
their previous deed by Barbour, attorney in fact, and reciting that
their certain deed dated May 2, 1890, to George W. Bird, was procured
by misrepresentation and deceit, the same having been executed by
them (Lakey and wife) in blank, with the understanding that the name
of said Kendall was to be inserted therein, and that the same was
intended to confirm title to said laud to said Kendall.
The provision in the act of August 18, 1894 {supra), relative to sol-
dier's additional homestead certificates, is as follows:
That all soldiers' additioual liomeHtead certiiicates heretofore issued nnderthemles
and regulations of the General Land OflBce under section twenty-three hundred aud
six of the Revised Statutes of the United States, or in pursuance of the decisions or
instructions of the Secretary of the Interior, of date March tenth, eighteen hundred
and seventy -seven, or any subsequent decisions or instructions of the Secretary of
the Interior or the Commissioner of the General Land Office, shall be, and are hereby,
declared to be valid, notwithstanding any attempted sale or transfer thereof; and
where such certificates have been or may hereafter be sold or transferred, such sale
or transfer shall not be regarded as invalidating the right, but the same shall be good
and valid in the hands of bona fide purchasers for value; and all entries heretofore
or hereafter made with snch certificates by such purchasers shall be approved, and
patent shall issue in the unmu of the assignees.
DECISIONS RELATING TO THE PUBLIC LANDS. 295
As constmed in tbe case of John M. Eankiu (8upra)j this legislation
was intended to afford larger relief than the said act of March 3, 1893,
and *< should not be limited to validating the transfer of certiftcates,"
but was intended "to validate all certificates heretofore (theretofore)
issued, in the hands of bona fide holders," notwithstanding any invalidity
attending the issuance thereof.
It would seem unnecessary, therefore, to discuss at length the con-
tention of Bobords that his contest gives him any right or valid claim
under the act of May 14, 1880 (21 Stat., 140), as against the claim of
Kendall. It would be sufficient answer to any claim of Robords, even
had the fraud charged by him been proven by the testimony adduced
by him — which was not tbe case — that he was shown to be the prime
mover in the fiaud. He would not be permitted, as such, to have judg-
ment in his favor, and thus reap advantage through his own wrong.
But were he blameless in the entire transaction proof that said certifi-
cate was fraudulently obtained would avail him nothing against the
right of Kendall under the acts of March 3, 1893, and August 18, 1894.
The proposition can not be entertained that in the former act Congress
intended in one breath to enable the purchaser under a fraudulent cer-
tificate to perfect his title, and in the next, to enact that a contestant
might defeat that provision by proving the fraud alone. These acts
being in pari materia are to be construed together and so construed
they were clearly intended to protect any purchaser mentioned in either
against the consequences of invalidity, whether by reason of fraud, or
otherwise, of the certificate to which he traced his title.
The only color of title in Bird to the land in question is under said
quit claim deed. But as Kendall's deed was duly recorded, thus giving
Bird constructive notice thereof, and as Lakey had no title when the
deed to Bird was made, the latter could certainly take nothing by his
deed, and his application was properly denied. This disposes of the
entire case so far as the issues between these parties are concerned.
It will be noticed that the act of 1894 directs that
all entries heretofore or hereafter made with sach certificates by snch purchasers
shall be approve<l, and patent shall issue in the name of the assignees.
Under this provision, following the construction of the act in case of
Rankin (supra), said entry will stand, and patent will issue to said
Kendall. The only difference in point between the positions of Eankin
and Kendall is that the former purchased prior to entry, and Kendall
after entry. In both cases the entry was made in the name of the party
named in the certificate. The diflerence is immaterial.
Yonr office decision as herein modified is affirmed.
296 DECISIONS RELATING TO THE PUBLIC LANDS.
ISOLATED TRACT— ACT OF FEBBUABT !IS6, 1895.
John P. Shank.
Section 2455 R. S., as amended by the act of February 26, 1895, contemplates that no
tract shall l>e regarded as isolated, within the meaning of the law, unless at the
time of the application to have it sold nnder said section the land sarroanding
said tract is included within entries, filings or sales, made at least three yesrs
prior thereto.
Secretary Bliss to the Commissioner of the General Land Office^ March
(I. H. L.) 25, 1897. (E. M. R.)
This case involves the SW. J of the S W. J of Sec. 25, T. 15 X., R. 18
E., Lewistowu land district, Montana, and is before the Department
upon appeal, by John P. Shank, from your office decision of February
8, 1896.
The record shows that on January 16, 1896, the appellant made appli-
cation, as a prospective purchaser, to have the above described tract sold
under section 2455 of the Revised Statutes of the United States, as
amended by the act of February 26, 1895 (28 Stat., 687).
Your office decision states that the records show that the land
involved is vacant, but does not come within the statute for the reason
that the SE. J of the SW. \ of Sec. 25, same township and range, is
embraced in coal entry No. 1, made by Frank Bland on October 2,
1894, and the SE. ^ of the SE. ^ of See. 26, same township and range,
is embraced in coal entry No. 2, made March 4, 1895, by Millie L.
Conway.
Section 2455 as amended by the act of February 26, 1895, is as follows :
Sec. 2455. It shall he lawful for the Commissioner of the General Land Office to
order into market and sell for not less than one dollar and twenty-five cents per acre
any isolated or disconnected tract or parcel of the pablic domain less than one quarter
section \vhich in his Judgment it would be proper to expose to sale after at least
thirty days' notice by the land officers of the district in which such lands may be
situated : Providedf That lands shall not become so isolated or disconnected until
the same have been subject to homestead entry for a period of three years after the
surrounding land has been entered, filed npon, or sold by the government: Provided,
That not more than one hundred and sixty acres shall be sold to any one person.
The appellant contends that whilst the entries mentioned in your
office decision (those of Bland and Conway) have not been made long
enough to bring the land within the time required by the act, to wit,
three years, that in fact the land surrounding the tract in controversy
has been filed upon for a much longer period than the time required by
the act, and he therefore asks for the reversal of your decision.
It will be noted that the section is not mandatory in its requirements.
Tt says, "It shall be lawful for the Commissioner of the General Land
Office," and again, *^ which in his judgment it would be proper to expose
to sale;" and I am of opinion that the interpretation placed upon this
act by your office is the correct one, conceding the assertion of the
DECISIONS HELATIXG TO THE PUBLIC LANDS. 297
api)ellaDt to be correct, that other entries had been allowed and filings
made from time to time covering a period greater than that required by
the statute, that nevertheless the true meaning of the section contem-
plated that no tract became isolated within the meaning of the law
unless at the time of the application to have it sold, such tract was sur-
rounded by entries or filings, or land already sold, which entries or
filings or sale had been made at least three years prior thereto.
The decision appealed from is therefore affirmed.
SETTLEMENT RIGHT— ADVERSE CLAIM— ESTOPPEL.
Phillips v. Matthews.
The right of a settler to make homestead entry will not be defeated by the prior
application of an adverse claimant, if, by the conduct of said claimant, ho is
estopped from asserting his claim as against sach settler, and it appears that
said claim is wanting in good faith.
Secretary BUsh to the CommisHoner of the General Land Office^ March
(I. H. L.) 25, 1897. (E. M. B.)
This case involycs that tract of land in the Gainesville land district
in the State of Florida known as the N. J of the 8E. J of Sec. 5, T. 15 8.,
R. 22 E.
The record shows that on December 15, 1890, Dnncan D. Matthews
made homestead application for the tract in controversy, together with
aD affidavit of contest against the claim of the Florida Transit and Pen-
iiJ8olar Hailroad Company, and subsequently, on November 28, 1892, he
was allowed to make homestead entry.
On the second day of December, 1892, Clifton J. Phillips made appli-
cation to enter under the homestead law the same land, which was
rejected, and on January 3, 1893, he filed his affidavit of contest against
tbe entry of Matthews on the ground of prior settlement and superior
eciuities and that the entry of the defendant-respondent was not made
in good faith.
On the day following, the local officers issued notices of hearing to
be had on February 15, 1893, before the clerk of the circuit court at
Ocala; at which time and place the parties appeared and submitted
testimony.
November 23, 1893, the local officers issued a new notice setting Jan-
uary 9, 1894, as the date of the new hearing and the local office as the
place. May 7, 1894, the local officers rendered their decision in favor
of the plaintiff and recommended the cancellation of the entry of the
defendant. Upon appeal, your officei decision of December 6, 1894, was
rendered, wherein was reversed the action of the local officers and the
homestead entry of Matthews held intact. Further appeal brings the
cause before the Department for final adjudication.
298 DECISIONS RELATING TO THE PUBLIC LANDS.
From an examination of the evidence it appears that in NoTember,
1887, Phillips, the contestant, secured the quitclaim of E. W. Agnew,
his brother-in-law, or more accurately, one G. E. L. Schmidt, who had
entered into a contract for the purchase of this land from the Florida
Transit and Peninsular Railway Company, and who, in consideration
of an indebtedness due Agnew, left with said Agnew this contract as
collateral security, it being in the nature of an equitable mortgage,
and having thereafter left the country, the said Agnew, at the time
above mentioned, told the plaintiff that he might go into possession of
this land.
In November, 1887, the plaintiff commenced his improvements upon
the land by building a fence around forty acres; a well was also dag
and a house twelve by fourteen feet was built. He cleared ten acres
and planted in orange trees, and set out about 15,000 nursery stock
trees. In November, 1892, he added three rooms to his house. His
intention from the start was to acquire title from the railroad company.
In June, 1892, he discovered that the company could not give title, and
soon thereafter made settlement under the homestead law. His im-
provements are worth $2,500.
On June 4, 1892, your office, in reply to a letter from the plaintiff,
stated that the tract in controversy was within the limits of the grant
to the Florida Eailway and Navigation Company and had been selected
by said company on September 3, 1887; that on June 18, 1883, your
office had passed ui)on the case of said company r. Schmidt, and
rejected the claim of the company, from which action the company had
appealed, and on April 22, 1884, the Department had affirmed your
action; that thereafter the entry of Schmidt had been canceled; that
the tract was at the time of the communication involved in the case of
the said company r. Matthews; and that on June 9, 1891, your office
had considered the above entitled c^use and had decided against the
company, and appeal had been taken to the Department.
Subsequently, and to wit, on June 14th, your office, in reply to
another communication, informed the plaintiff that the claim of
Matthews was based upon an application to enter under the homestead
law. The plaintiff, after the receipt of the first letter, saw the defendant
and asked him if he laid any claim to the land, and he denied that he
laid any claim to any land in that neighborhood. He denied that he
had ever had any contest with the railroad company over any land.
After the receipt of the second letter from the then acting Com-
missioner, the plaintiff went on a visit to his former home in Kentucky,
and upon his return ascertained that the defendant was absent, but
succeeded in locating him in North Carolina, and wrote to him with a
view to securing his relinquishment of all claim in and to the land. He
received a letter from the defendant offering to sign any papers that the
plaintiff might desire, if he were paid $15.00; whereupon this appellant
forwarded to him a check for that amount, which check was used by
the defendant-resx>ondent.
DECISIONS RELATING TO THE PUBLIC LANDS. 299
It further appears that in July, 1892, the defendant was Employed by
the plaintiff to work on the laud in controversy, upon his orange trees,
and was duly paid for such services. Early in December, 1892, Phillips
took bis wife on the land to live. Prior to this time, and extending
back for some time, the plaintiff had kept up a desultory residence
upon the land, going out from Ocala, where he was employed in the
warehouse of Agnew, to si)end a day or night, at which times he occa-
sionally prepared his own meals. About the first of December, 1892,
Matthews put up notices on the laud, which the plaintiff tore down.
Matthews, in answer to the fact that he worked for Phillips upon the
land, states that he did not know it was the land in controversy. This
laud is just on the outskirts of Ocala. He admits that in reply to a
letter from the plaintiff' he promised to sell his interest for fifteen dollars.
He says that at that time he expected to remain in North Carolina at
least one year ; that he had used the check sent by the plaintiff through
mistake; that he had several other checks in his possession and had
inadvertently cashed the check. On the day he presented the check
he returned to Ocala and shortly thereafter deposited in his name, at
the First National Bank of that place, an amount equal to the check.
He had the laud surveyed on the 3rd of December, 1892, and built a
house on the land in January, 1893, and has two or three acres under
enclosure and raised some few things.
The decision of your office was based ui>on the fact that the applica-
tion to enter by Matthews, whilst subsequent to some of the improve-
ments of Phillips, was prior to his settlement, and as Matthews' entry
was followed within a reasonable time by residence, the settlement and
extensive improvements of Phillips could not inure to his advantage
because of the pending application of the defendant When viewed
by itself this position is impregnable, but an examination of the entire
record shows that the plaintiff is entitled to judgment.
An estoppel is the preclusion of a person from asserting a fact by previous conduct,
inconsistent therewith on his own part, or the part of those under whom he claims,
or by an abjudication upon his rights which he can not be allowed to caU in question
(7 American and English Encyclopedia of Law, page 1).
The defendant told the plaintiff that he did not claim any land in
that neighborhood and had never had a contest with the railroad com-
pany over any land. This it seems, under the authorities, amounted
to an estoppel in pais. There was a false representation of a material
fa<!t (Pittsburg r. Dauforth, 66 N. H., 272), which was knowingly made,
and the plaintiff was ignorant of the fact; at least the denial came
fi'om the very highest authority — the applicant himself. And in this
connection, as intent is a material part of all proceedings before this
Department having as an ultimate end the acquisition of title to the
public domain, the fact that the applicant disavowed any claim to any
]and in that neighborhood, would render the claim of record ineffectual
as against Phillips, The false representations were apparently made
800 DECISIONS RELATING TO THE PUBLIC LANI>S.
to mislead *tbis plaintiff iu order that he might act thereon, which
he did.
It further appears that the defendant contracted to sell his lelin-
quishment to this plaintiff. It is clearly shown by the record that the
defendant, in answer to a communication received from the plaiiitifi',
wrote him a letter in which it was state<l that for the consideration of
$15.00 he would sign any paper the plaintiff considered necessary to
clear the record; that the said sum was accordingly sent, and there-
niter used by this defendant. It is true that the defendant claims that
the presenting of the check was an inadvertence, but an examination
of the record shows that this is not true. Equitable considerations are
sufficient to demand that this defendant be prevented from denymg
the sale.
It is shown that at the time of the application of the defendant to
enter, the plaintiff had valuable improvements upon the land, which
facts suggest that the application of the defendant was not made in
good faith, but with the intent to appropriate the valuable improvements
of another. This Department has in various decisions indicated that
one would not be allowed to appropriate the improvements of another
iu the manner here attempted. Thus in the case of Caldwell r. Garden
(4 L. D., 306) it was held that the improvements and settlement of one,
made with due notice of the bona fide claim of another, was not suffi-
cient to defeat such prior claim. See also Turner v. Bumgardner (o
L. D., 377) and the recent case of Tustin v. Adams (22 L. D., 266),
wherein it was held, infer alia (syllabus):
The right of eutry wiU not l>e accorded to a homestead applicant who, with full
notice of the prior eciuitics of an adverse claimant, fraudulently seeks to secure
title through legal technicalities.
And again in Boberts v. Gordon (14 L. D., 475) it was held, ifUer alia
(syllabus) :
One who fails to assert any claim to a tract of public land which is in the adverM
possession of another, and remains silent, though knowing that the adverse occu-
pant continues to claim, occupy and improve tbe land, is estopped thereby from
subsequently denying the good faith of said occupant and asserting a right of pri-
ority in himself.
I am therefore of opinion that a rightful regard to the equities of this
cause demands a reversal of your office decision. The entry of Mat-
thews will accordingly be canceled.
DECISIONS RELATING TO THE PUBLIC LANDS. 301
PRACTICE-REVIEW— OKI-AHOMA I^ANDS-SETTLEMENT.
Braden 1?. Shaw.
The Bafficiency of the charge, on which a hearing has been held, can not be called
in question on review, if no objection thereto was made at the hearing.
The prohibitory provisions of section 14, act of March 2, 1889, with respect to settle-
ment in Oklahoma, are general in character as to lands opened to settlement in
said territory, and extend to Sac and Fox lands, becoming effective from the
<late of the act announcing the acquisition of the Indian title to said lands.
Secretary Bliss to the Commissioner of the General Land Office, March
(L H. L.) ^5, 1897. (P. J. C.)
Counsel for Knowles Sbaw have filed two petitions for re-review of
departmental decision of May 20, 1896 (333 L. and R., 129), on the
merits of the contest initiated by George W. Braden; also of the deci-
sion on the motion for review of October 3, 1896 (342 L. and R., 45),
and on a motion for rehearing on November 12, 1896 (344 L. and R.,
366).
The petitions were entertained. Service of the same, together with
the affidavits, was made on Braden, and the matter now comes up
regularly for consideration.
It appears that Shaw, through his agent, filed soldier's declaratory
statement for the NE. J, Sec. 10, Tp. 16N., R. 4 E., Guthrie, Oklahoma,
September 23, 1891 ; on September 30, following, Braden made home-
stead entry of the tract. On March 18, 1892, Shaw presented to the
local officers his application to make entry under his said soldier's
declaratory statement. This application was ^< suspended awaiting the
determination of rights of" Braden for the said tract '* who will be
cited to appear at this office to show cause why his entry should not be
canceled."
The record does not show whether Braden was actually cited, but on
April 16, 1892, he filed an affidavit alleging:
That the said Knowles Shaw did not make settlement on said land prior to this
ftffiant, that on Sept. 22, 1891, in the afternoon of said day, this affiant was in actual
possession of said land; that at that time defendant was not on said land; that on
eaiil afternoon this affiant made settlement thereon as follows : set stakes on said
land, and on Sept. 28, 1891, in the forenoon he laid foundation for dwelling and bnilt
a shed thereon ; slept on land on night of 22 Sept. '91 ; have bnilt a dwelling thereon,
planted frnit trees, broken one acre ; that his settlement was prior to said Shaw, and
his claim superior to his, and he asks that his H. £. may remain intact on said land,
and that he may be allowed opportunity to prove said allegation of prior serttlement.
A hearing was ordered for August 2G, 1892, before the local officers,
when the parties appeared with their counsel. On September 30, the
date to which the hearing was adjourned, counsel for Shaw filed a
motion asking the local officers to set aside the suspension of his
application to make homestead entry. This motion was granted.
302 DECISIONS BELATING TO THE PUBLIC LAIIDS.
As a result of tbe hearing tbe local officers found
from tbe evidence in this case that George W. Braden^ the plaintiff, made settleiDent
npon the claim iu dispute am a homeHteader, in the afternoon of September 22, 1891,
and that he has in good faith complied with the requirements of the homestead law
since said date.
They recommended the cancellation of Shaw's entry, and that Braden's
remain intact. In discussing the facts as disclosed by the testimony
the local officers say:
We are of the opinion that the question of soonerism and disqualification of the
plaintiff as a homesteader c4n not be questioned in this proceeding, because there is
no evidence showing that plaintiff entered upon said lands embraced in the act of
February 13, 1891, subsequent to said date and prior to noon September 22, 1891.
On appeal, your office affirmed tbe action of the local officers upon
tlic facts in relation to settlement on the land, but the question as to
Braden's disqualification was not discussed, though raised by the
specifications of error. The Department, May 20, 1896, formally
affirmed the concurring conclusions below.
Motion for review of the latter decision was filed in the local office
August 12, 189G. On. October 3, following, this motion was denied.
Tlie errors assigned by this motion were, (I) that the decision was not
responsive to the evidence, but repugnant to it; (2) that the affidavit
of contest failed to allege sufficient grounds of contest, and that the
decisions of your office and the Secretary did not consider or pass
upon this question of practice; and (3) that Braden's alleged disquali-
fications to take land in Oklahoma was not passed upon. The Depart-
ment decided these questions : (1) that this assignment was iu substance
an allegation that the judgment is against the testimony, and was
insufficient to warrant consideration; (2) ^<Upon the question of prior-
ity, which was fairly raised by the affidavit of contest, your office ren-
dered the judgment which was formally affirmed by the Department,"
and (3) that Braden was not disqualified by reason of entering the
Territory after the passage of the act opening the same to settlement,
and before the President's proclamation was issued. It was said:
If it be conceded that he did ho enter, he would not be disqualified, for the reason
that Congress did not fix any such penalty. The testimony that he did so enter, how-
ever, is not at all clear or convincing. Braden expressly denies that he was there or
that he did any of the acts he is charged with.
On August 21, 1896, nine days after tbe motion for review was filed,
Shaw filed a motion for rehearing. Through some oversight iu tbe
local office this motion was not forwarded to your office till October 10,
following. The sole ground of this motion was Braden's alleged dis-
qualification, and inasmuch as it had been decided that he was not
disqualified, the Department, on November 12, 1896, denied the motion.
Two petitions for re-review of the former departmental action are now
presented, one by counsel in Oklahoma, and the other by local attor-
neys. In the first, it is alleged (1) that the decision on review is not
DECISIONS RELATING TO THE PUBLIC LANDS. 303
resi>onsive to the motion, and (2) that it "violates all the precedents of
tbe Department heretofore rendered on the question of soonerism, and
is in violation of the laws of Congress upon said question.'' In the
second it is charged (1) -"that the decision of May 20, 1S96, absolutely
Ignores the facts shown by the record," and presented by counsel in
argument in respect of Braden's "unlawful entry" on the land ; (2) that
it was error to find that Braden was not disaualified in the motion for
review and in the decision on the motion for rehearing 3 and (3) that in
view of the testimony of the contestant and the aflRdavits filed, it was
error not to order a hearing to determine contestant's qualifications.
On the " question of practice," that is, as to whether the affidavit of
contest raises the issue of prior settlement, there is but little to be said.
Tbe position of counsel is, that inasmuch as Shaw did not claim by
reason of prior settlement, but because of filing his soldier's declara-
tory statement, the charges in the affidavit of contest are not suffi-
ciently full or explicit to raise this issue. This contention is without
potency in this case. It was said in the decision on the motion for
review, that the question of priority was fairly raised. The reasons for
this naked announcement were not given, because it seemed so appar-
ent that this was the only isssue upon which Braden could recover ;
that is, his settlement must antedate Shaw's filing, assuming the latter
to be sufficient. This is the question that was tried and upon it the
several concurring decisions have been rendered. Besides, the allega-
tiou, though not expressed in apt language perhaps, is sufficient in my
judgment to raise this issue. It is certainly so when the circumstances
are considered : the filing of the soldier's declaratory statement ; the
subsequent homestead entry of Braden, and the order citing him to
appear and show cause why it should not be concelecl for conflict with
Shaw's.
But aside from this, the question as to the sufficiency of the charge
can not now be raised. There was no objection made to it at the hear-
ing, and both parties proceeded upon this theory of the case. Counsel
will not, therefore, be permitted now to raise the objection. (Paxton r.
Owen, 18 L. D., 540.)
It is urged by all the counsel who now appear that Braden was dis-
qualified from making entry because, as charged by them, he entered
tbe territory after the passage of the act — February 13, 1891, — and
before the issuance of the President's proclamation declaring said land
o\)Qn to settlement, and it is insisted that Braden's own testimony is
sufficient in itself to establish this fact.
The record does not sustain this charge. In the first place, the local
officers distinctly ruled on the question as to whether the testimony
was sufficient to warrant this finding, and held that it was not. This
jud*?meut has been affirmed, and it was expressly held by the Depart-
ment, in the decision on the motion for review, that the evidence was
not sufficient to justify this allegation. This finding of fact will not
therefore be reviewed
304 DECISIONS RELATING TO THE PUBLIC LANDS,
The Tu1in£^ of the Department, however, in ail its decisions in the case
that Braden was not disqualified, even though he may have been in
the territory after the passage of the act and before the issuance
of the President's proclamation was erroneous. This question has been
previously decided in Hittwage r. McClintock (21 L. D., 267), and the
conclusion was (syllabus) :
The prohibitory provisions of section 14, act of March 2, 1889, with respect to
setilemcnt rights in the Territory of Oklahoma, were intended to be general in
character as to lands opened to settlement in said Territory, and it therefore folloirs
that said prohibition oxt^ends to lands formerly embraced in the Cheyenne and
Arapahoe reservation, and became effective from March 3, 1891, the date of the act
announcing the acquisition of the Indian title to said lands.
This ruling was followed in Griffard et aL v. Gardner, Id., 274.
These decisions refer to the Cheyenne and Arapahoe reservations,
which were opened to settlement by the President's proclamation of
April 12, 1892 (27 Stat., 1018-1021), but the exact language used therein
is found in the proclamation of September 18, 1891 (27 Stat., 989-902),
opening the lands in the Sac and Fox, etc., reservations, wherein the
tract in controversy is situated. The ruling in those cases would, there-
fore, apply to the one at bar. In the unpublished case of Johnson r.
Henderson, decided October 3, 189G, the Department applied the ruling
in those cases to land within the Sac and Fox reservation.
It is clear that the ruling in this case on the point as to whether
Braden would not be disqualified if within the territory during the
prohibited period, as construed by the prior decisions of the Depart-
ment, was erroneous, and that part of it, so holding, must be revoked.
In view of this determination, it remains to consider the motion for
a rehearing, the decision on this having been based on an erroneous
construction of the law.
The motion for rehearing is based on the allegation of newly discov-
ered evidence, and relates entirely to Braden's presence in the territory
after the passage of the act, February 13, 1891, and the issuance of the
President's proclamation. At the trial of this case this matter was
gone into to some extent in the cross-examination of Braden, and, as
before said, the testimony was not sufficient to warrant a judgment
that he was in the territory during the prohibited period. He swore
positively that he was not, and there was no testimony ofiered by the
other side to contradict this. It is alleged by Shaw that the first In*
knew tliat Braden was disqualified was by reason of this testimony.
This motion is supported by several affidavits. Vandrufl' swears
that Braden admitted to him in 1893 that he had been in the territory
in "March, before said country was opened to settlement." The other
affidavits are made by Burger, Todd and Stockton, and are all to the
effect that they and some other persons named, together with Braden,
made a trip into the country early in 1891, The date of this trip is not
fixed with any degree of accuracy. The first witness says that it was
in the latter part of the winter of 1891, and states that "probably the
DECISIONS RELATING TO THE PUBLIC LANDS. 805
last snow of the winter fell while they were out." Another says it was
"after the cold weather was over, in the spring of 1891, but does not
remember the month." The last witness fixes the time ^^ on or about
the last of February or the first of March in the year 1891."
In his own affidavit Shaw recites what other witnesses named will
testify to. It is not deemed necessary to set forth the matters he thus
states, for the reason that under the rulings their own affidavits must
be presented, and for the further reason two persons named by him
have made affidavits denying the statements attributed to them.
Bradcn, in his affidavit, admits having been in the territory in Janu-
ary, 1891, and unqualifiedly denies being there after that date until
September 22, 1891. He also denies having made the declaration
sworn to by VandrufF.
The showing made here by Shaw is not sufficient, in my judgment
to warrant a rehearing. The statements made by his witnesses are too,
indefinite to overcome the positive and direct denials made by Braden.
The petition for re-review is therefore denied.
HOMESTEAD ENTRY— NON-CONTIGUITY— MORTGAGEE.
John R. Cobby et al.
When an entry is fonnd to embrace non-contigaous tracts the entr jman should be
caUed upon to elect which tract or tracts he will relinqnish in order to bring the
entr^' within the rnle as to contiguity; and if the entryman fails to take such
action, the entry may then be canceled as to sncb tracts as may be deemed
proper, having due regard to interests shown by incumbrancers.
Secretary Bliss to the Commissioner of the General Land Office^ March
(W. V. D.) 30y 1897. (J. L. McC.)
John E. Corry, on August 19, 1894, made homestead entry for lots
10 and 11 of Sec. 4, lots 13 and 14 of Sec. 5, lot 1 of Sec. 8, and lot 4 of
Sec. 9, T. 11 N., R. 4 W., Oklahoma land district, O. T.
The several lots named contain in the aggregate an area of 49.95
acres.
On March 18, 1895, Oorry commuted said entry to cash, under Sec.
21 of the act of May 2, 1890 (26 Stat., 81); and cash certificate issued
thereon.
When the entry papers were forwarded to your office, it was found
that lots 10 and 11 of Sec. 4, and lot 13 of Sec. 5, were not contiguous
to one another, nor to the other subdivisions embraced in the entry.
Thereupon your office, by letter of June 2, 1895, allowed Corry thirty
days within which to show cause why his entry should not be canceled.
A motion for review of the above decision was filed by J. H. Everest,
attorney for J. R. Corry, J. M. Cox, William Maxwell and R. C. Uager.
Ou Se[)tember 4, 1895, said motion for review was denied, and the
homeste^id entry held for cancellation.
10G71— VOL 24 20
806 ' DECISIONS RELATING TO THE PUBLIC LANDS.
Thereupon, J. M. (Jox, claiming to be transferee of said Corry, filed
^application to relinquish all the land embraced in said entry, except lot
10 of Sec. 4j and to have the entry as to that lot remain intact — ^transmit-
ting his relinquishment for the other lots mentioned. Thereupon yoor
office, by letter of December 17, 1895, directed the local officers to
■advise the parties that inasmuch as there was no evidence of the land
having been transferred — only that it had been mortgaged — tbey
should '* advise the parties in interest that it will be necessary for them
to furnish evidence of the transfer of said claim.^
From this action Cox has appealed, contending that your office erred
in not holding that, by reason of his mortgage, he was the real party
in interest as transferee of said John K. Gorry.
In the view taken of this case, it is not deemed necessary to consider
and decide the matters involved in that contention.
I am of the opinion that instead of calling upon the eutryman to show
cause why his entry should not be canceled, the better course would
have been to have called ui)on him to elect which portions of his entry
he would relinquish in order to make it contiguous.
The case is therefore returned to your office that you may pursue this
course; and, in the event that the eutryman does not elect and relin-
quish within the time named in the rule so issued, you will proceed to
make such cancellation as in your opinion may seem proper, having
due regard to the wishes of the mortgagee or incumbrancer.
The decision of your office is modified as above indicated.
i>£sebt land extry— ajoojaii proof— compacrnkss.
Abbam M. Beid.
Orders of the General Land Office made on the submission of annual desert land
proof are interlocutory in character, and no appeal will lie therefrom.
In determining whether a desert land entry is within the rule as to compactness no
inflexible rule can be laid down, but each case must be considered in the light of
the facts presented.
Secretary Bliss to the Commissioner of the General Land Office^ March
(W. V. D.) 30y 1897. (W. C. P.)
Abram M. Beid has appealed from your decision of September 14,
1896 requiring liim to relinquish a portion of the desert land entry, held
by him as assignee of D. M. Limbaugh, for the SE. ^ of the S W. |, and
the S. J of the SE. \ of Sec, 20, and the S. J of the SW. J of Sec. 21,
T. 4 N., B. 2 E., Tucson, Arizona land district to make it comply with
the requirements as to compactness.
This entry was made by Limbaugh on April 11, 1893, the land being
then unsurveyed and assigned to Abram M. Reid by an instrument
executed jMay 19, 1803. The deed of assignment, together with tbe first
year's i)ro()f, was filed in the local office April 18, 1894. On March 1,
DECISIONS RELATING TO THE PUBLIC LANDS. 307
1895y Beid as assignee, filed in the local office proof for the second
year. The local officers recommended that his proof be not accepted
because the claimant's affidavit was executed <^ without the Territory
contrary to the requirements of the act of May 26, 1890 (20 Stat.^ 121),''
and the claimant filed exceptions to their action. When the matter was
cousidered in your office it was said as to this proof:
The testimony of the assignee Laving been made before a United States Cireuit
Court Commissioner in Minnesota, the proof is not acceptable to this office. It,
however, is disposed of under the Clayberg case. See 20 L. D., 111.
In the same decision, however, it was held that the entry is not com-
pact, and the claimant was required within sixty days from notice '^to
adjust his entry so as to make it a consolidated body, by the relinquish-
ment of a x>ortion thereof." The claimant asked a review of that deci-
sion, setting forth that by reason of a range of mountains to the north
and east of said land substantially all the irrigable lands in said sec-
tions 20 and 21 were included in said entry, and that of Julia A. Reid;
that at the time these entries were made the plats upon which the
eutryman relied as correct showed that section 29 had been entered,
although it was afterwards discovered that it was section 28 instead
of 29 that was thus appropriated, and praying that in view of these
facts, and the further fact that the entry was accepted by the local
office without criticism or objection and had been allowed to stand for
more than two years, it be allowed to remain as made. By decision of
September 14, 1896, your office adhered to the former ruling and the
claimant apx)ealed.
A large part of the argument in support of said appeal is directed
to the proposition that the proof for the second year of said entry was
properly made. No order was made by your office as to that proof
and under the decision in the case of Andrew Clayberg (20 L. D., Ill)
any order that might have been made would have been interlocutory in
character, from which no appeal would lie. It follows, therefore, that
no question touching the yearly proof is now before this Department.
This entry embraces Ave tracts of forty acres lying alongside of each
other, making a tract one and one-quarter miles in length, and of the
uniform width of one-quarter of a mile. It is asserted by the claim-
ant that the lands to the north of this entry are not irrigable, and this
assertion is borne out by the statement in the decision appealed from,
that it is shown by the field notes <^ that a chain of mountains run
north- west and south-east near and east and north-east of this entry."
There is no stream in the immediate vicinity of this land, and nothing
to indicate that the entryman selected the land for the purpose of
securing any advantage by reason of the form in which it was taken.
Indeed, it would seem from the statements in the decision complained
of as to the character of the land in section 29, that the entry would
have been more desirable both as to form and quality of laud, if it had
been made to embrace lands in that section instead of the two tracts in
308 DECISIONS BELATIKG TO THE PUBLIC LANDS.
section 21. This tends to support the claim that the entry was made
in its present form, because it was then understood that the land in
section 29 had been appropriated. As has been frequently said by
this Department, no inflexible rule can be laid down as to what does
constitute compactness, but each case must be considered in the light
of the facts presented. In this case, as said above, the entrymau has
apparently secured no benefit by taking the land in its present form,
and the government has suffered no disadvantage thereby. In fact, it
would seem that adjoining irrigable tracts left unappropriated are in a
much more desirable shape for future purchasers than they would have
been had this entry extended into section 29 instead of section 21. lu
that case the two tracts of irrigable land in the latter section woald
have remained unconnected with any other tracts of unappropriated
irrigable land, and therefore undesirable for any purpose.
In view of all the circumstances surrounding this entry, nud the fact
that it was allowed to stand, as made, for more than two years, whereby
the claimant was induced to expend his money thereon, I am not
inclined at this time to require a relinquishment of any portion of the
land embraced in said entry, even though that might be done under a
strict application of the requirements as to compactness.
The decision appealed from is reversed, and the entry will be allowed
to stand as made.
DESSIIT I^ND ENTRY-REPAYMENT.
William F. Slocum.
A desert land initial entry made nnder the act of March 3, 1877, by one not a citizen
of the State in which the land is situated, bnt a qualified citizen of the United
States, may be perfected under the amendatory act of March 3, 1891.
Repayment of the purchase price of the land can not be allowed a desert entryman
who fails to furnish supplementul proof of reclamation properly called for by
the local office, and abandons his claim to the land.
Secretary Bliss to the Commissioner of the General Land Office^ March
(W. V. D.) 30y 1897. (W. M. B.)
William F. Slocum appeals from yoar office decision of July 2, 1894,
wherein was denied his application for repayment of the parchase
money paid on his desert land claim initiated by the filing, on October
28, 1889, of his declaration Ko. 697, and the payment of the first
instalment of parchase money, for the W. ^ of the NE. J; the NW. J;
the SW. J, and the W. J of the SE. \ of Sec. 18, T. 24 S., R 29 E., Las
Graces land district, Territory of New Mexico.
The material facts in the case, as they appear of record, are: — that
final proof was made, November 3, 1892, before A. A. Mermod, U. S.
Commissioner of the fifth judicial district of New Mexico, and that
said proof, and certificate of deposit for $440.00, payable to Frank
Lesnet, receiver, as parchase money for the land, were forwarded to the
DECISIONS RELATING TO THE PUBLIC LANDS. 309
local office at the same time; that said certificate of deposit was con-
verted into cash, and the proceeds placed in bank to the credit of said
receiver; that the final proof which was sabmitted on November 6,
1892, was found defective, but was retained in the local office, with the
endorsement ''Held for supplemental proof of reclamation"; Slocum
being notified to furnish such proof.
It further appears that the required supplemental proof was never
submitted, and that Lesnet never accounted to the government for the
purchase money received by. him.
There is embodied in the appeal, and made a part thereof, the copy
of an affidavit made by Slocum himself— said affidavit being forwarded
and submitted with the final proof-— which clearly shows that there
was no fiow of water upon the laud involved at the time final proof
was made and submitted, which fact of itself was sufficient to warrant
a rejection of the said final proof.
Appellant's proof being held to be incomplete by the local office, he
abandoned his claim, as appears, and instead of making further effort
to reclaim the land, elected to make application for repayment — under
section 2 of the act of June 16, 1880 (21 Stat., 287)— of the purchase
money on the ground that being a resident of the State of Colorado —
and not the Territory of I^ew Mexico, in which the land in question is
situated — he was estopped by provision of section 8 of the amendatory
act of March 3, 1891 (26 Stat., 1095), from making entry of the said
land. There is no merit in such contention. The word ^' entry" as
employed in said section of said act has reference not to the final entry
bat to the original or initial entry. Vide case of ex parte Fred W.
Kimble (20 L. D., 67).
Slocum, though a citizen of the State of Colorado, having initiated
his claim under the act of 1877, which allowed any qualified citizen of
the United States to make desert land entries, could have completed
his proof and made final entry under provisions of sections 6 and 7
of the amendatory act of March 3, 1891, which, among other things,
protected all valid rights which had accrued under the former or orig-
inal act.
There is no relief for appellant under provision of section 2 of the
act of June 16, 1880, for said section only authorizes repayment where
an entry of public land is "canceled for conflict, or where, from any
cause, the entry has been erroneously allowed and can not be con-
firme<l." As shown, Slocum never made final entry of the land involved,
and his initial entry was not, and could not be, canceled for conflict for
the reason that there was no adverse claim to the land in question, nor
can it be said that the same was erroneously allowed, for it was properly
permitted to be made, and could have been prosecuted to final entry
and confirmation by compliance on the part of Slocum with the require-
ments of law and existing regulations.
For the foregoing reasons your referred to office decision rejecting
appellant's application for repayment is hereby affirmed.
310 DECISIONS RELATING TO THE PUBLIC LANDS.
HOMESTEAD ENTRY-TIMBER LAND-CONTEST.
Lucas r. Dudley.
A contest against a homestead entry on the ground alone that the land embraced
therein is unfit for cultivation, and of no value except for the timher thereon,
will not be entertained.
Secretary Bliss to the Commissioner of the General Land Office^ March
(W. V. D.) 30, 1897. (J. L. McC.)
Bobert Dudley made bomestead entry, on January 24, 1895, of tbe
SW. i of tbe SE. i, tbe 8E. i of tbe S W. 4, and lot 4, of Sec. 30, and
lot 1, of Sec. 31, T. 149, B. 31, St. Cloud land district, Minnesota.
Later in tbe same day Jobn W. Lucas offered for filing bis sworu
statement to enter tbe same land under the provisions of tbe timber
and stone act of June 3, 1878 (20 Stat., 89) ; but bis application was
rejected because of Dudley's prior bomestead entry.
On the next day Lucas filed contest affidavit against Dudley's entry,
alleging:
That said land is unfit for cultivation, and haa no value except for the timber
thereon ; that the same is valuable for the timber th*ereon ; that the same is unfit for
agricultural or famiing purpoaen, and crops cannot be raised thereon ; that aboat
January 12, 1894, affiant selected said land under the timber and stone act as soon as
the same should be subject to entry, and at said time he erected thereon a comfort-
able house for use in utilizing the timber thereon, and much other improvements.
Due notice issued for a bearing on tbe day fixed (Marcb 20, 1895);
tbe defendant moved to dismiss tbe contest, contendfhg, in substance,
tbatit setfortb no sufficient cause of action; tbat it did notcbarge the
bomestead entryman witb want of good faith ; and tbat an allegation
tbat land entered as a bomestead is unfit for cultivation is not sufficient
basis for a contest.
The local officers granted tbe motion and dismissed tbe contest
Tbe contestant appealed to your office, which, on December 21, 1895,
sustained tbe action of tbe local officers. Tbe contestant bas appealed
to tbe Department.
The law wbicb provides tbat land unfit for cultivation, and chiefly
valuable for its timber, shall be (in certain states named), subject to
entry as timber land, does not probibit tbe entry of sucb land under
the settlement laws. It is true tbat settlements on land cbiefiy valuable
for timber sbould be closely scrutinized, and that the cbaracter of the
land may, in connection with other facts in tbe case, affect tbe question
of tbe settler's good faitb (Porter t?. Throop, 6 L. D., 691). But in the
case at bar the applicant to contest relies solely upon tbe cbaracter of
the land, not connecting it witb any << other facts ^ tending to show bad
faith on the part of the bomestead entryman. Tbe burden of proof
showing bad faitb is on the contestant; and tbe cbaracter of the land
is not, alone, sufficient proof of sucb bad faith. (Hoxie v, Peckinpah,
16 L. D., 108.)
The decision of your office is affirmed.
DECISIONS RELATING TO THE PUBLIC LANDS. 311
INDIAN IiANI>S— ALLOTMENT— CITIZENSHIP.
Ulin r. Colby et al.
Children born of a white mau, a citizen of the United States, and an Indian woman,
his wife, follow the statas of the father in the matter of citizenship^ and are
therefore not entitled to allotments under section i, act of February 8, 1S87, aa
amended by the act of February 28, 1891.
Secretary Bliss to the Commissioner of the Gejieral Land Office, March
(W. V. D.) 30, 1897. (0. W. P.)
William W. XJliii has appealed from your office decision of July 15,
189C, iu the case of the said Uliu against Elizabeth and Harry Colby.
The land in controversy is the NE. J of the NW. J and the IS'W. J
of the NE. \ of Sec. 15, T. 32 N., R. 13 W., Seattle land district^
Washington.
The record shows that on April 14, 1893, Eliza Obalthsa (Mrs.
Colby) made allotment application No. 5, under the general allotment
act of February 8, 1887 (24 Stat., 388), as amended by the act of Feb-
ruary 28, 1891 (20 Stat., 794), for unsurveyed land, supposed to be the
NE. \ of the S W. \ and lot 3 of township 32 K, range 13 W. Lot a
is the fractional S. ^ of the NW. ^. The section is not given, but it
elsewhere appears to be section 10.
At the same time she made application No. 3 for her minor child,
Elizabeth Colby, for the SW. \ of the SE. J of Sec. 10, the KW. J of
the NE. 4 of Sec. 15, Tp. 32 N., R. 13 W., also application No. 4, for
her minor child Harry Colby, for the SE. \ of the SW. J of Sec. 10,.
the NE. i of the NW. J of Sec. 15, Tp. 32 N., R. 13 W. The official
plat of survey was filed August 2, 1893.
On October 30, 1803, the local officers allowed William W. Ulin to
make homestead entry (No. 15,690) of the N. J of the NW. J, the N. J
of the NE. \ of Sec. 15, Tp. 32 N., R. 13 W. On December 23, 1893,.
your office held Ulin's entry for cancellation. On April 18, 1895, the
Department reversed this action and ordered a hearing.
The local officers found in favor of the allottees, on the ground that
the testimony showed that Ulin was aware when he first went to the-
land in 1892 that it was claimed by said Indians, and that, further-
more, he failed to make settlement on the land and to establish resi-
dence before the year 1895.
Ulin appealed. Your office affirmed the judgment of the local officer*
and held for cancellation Ulin's homestead entry as to the NE. \ of the
NW. \ and the NW. J of the NE. J of Sec. 16, T. 32 N., R. 13 W.
The testimony shows that the father of Mrs. Colby, the mother of
these children, belonged to the Hoko tribe of Indians and her mother
to the Makah tribe; and it is admitted that she was married to a white
man, a citizen of the United States, who is the father of Elizabeth and
Harry Colby. It also appears that Mrs. Colby was not residing on any
312 DECISIONS RELATING TO THE PUBLIC LANDS.
Indian reservation at the time she made selection of the lands for her-
self and her children.
These being admitted facts, the question arises, are these children
entitled to allotments ander the fourth section of the act of February
8, 1887, as amended by the act of February 28, 1891.
The circular of September 17, 1887, relating to allotments under the
act of 1887, directs that Indian women married to white men, or to
other persons not entitle<l to the benefits of this act, will be regarded
as heads of families. The husbands of such Indian women are not
entitled to allotments, but their children are. But in the case of Black
Tomahawk v. Waldron, reported in 13 L. I)., 683, it was held by the
Department, adopting the opinion of the Assistant Attorney-General,
that:
The common law rule thsit oflfspring of free persons follows the condition of the
father preTails in determining the status of children born of a white man, a ciii-
zeu of the United States, and an Indian woman his wife. Children of snch parents
are, therefore, by birth not Indians, but citizens of the United States, and conse-
quently not entitled to allotments under the act of March 2, 1889.
In the same case, reported in 19 L. D., 311, it is said :
Upon further cousidering the matters involved in this controversy, I see no good
reason for changing the conclusions heretofore reached by the Ansistant Attorney-
General, on the record then before him, and which conclusions were approved by me.
There can be no doubt of the correctness of the general rule as laid down, that,
among free people, the child of married parents follows the condition of the father.
But it has been suggested that the laws and usages of the Sioux Indians may have
made Mrs. Waldron a member of the tribe on March 2, 1889, the date of the agree-
ment between the tribe and the United States, either by furnishing a different rule
as to the effect of her birth, or by causing her adoption as a consequence of the facts
connected with her life. While the general rule is as has been before held, yet it
must yield to the laws and usage of the tribe when laws and usage upon the subject
are satisfactorily proven.
Upon the authority of these cases, it mnst be held that Elizabeth
and Harry Colby are not entitled to allotments under the acts of Feb-
ruary 8, 1887, and February 28, 1891.
Consequently your office decision is reversed.
ALASKAN LANDS— SURVEY— IXBI AX OCCUPANCTT.
Benjamin Arnold.
A survey of Alaskan lands under sections 12 and IS, act of March 3, 1891, shotuld not
be allowed to include a ditch or water way, used by native Alaskan villagers for
the purpose of securing the necessary fresh water supply for domestic uoe and
consuniptiou.
Secretary Bliss to the Commissioner of the General Land Office^ March
(W. V. D.) 50, 1897. (W. M. B.)
This is an appeal by Benjamin Arnold from your office decision of
May 8, 1895, wherein was suspended, in its present form, survey No. 22,
DECISIONS RELATING TO THE PUBLIC LANDS. 313
executed by Albert Lascy, U. S. deputy surveyor, under provisions of
sectious 12 and 13 of the act of March 3, 1891 (26 Stat., 1095), of a
tract of land claimed by appellant, containing 7.19 acres, situated on
Kuyanak Bay, Kadiak Island, district of Alaska, and used as a trading
post.
The field notes and plat of this survey show that the tract of land
claimed, as laid off, is about four times as long as its average width,
that the same is very irregular in form, and it appears that your office
suspended the said survey in its existing form for the reason that it
does not embrace a tract of land in square form as near as x)racticable,
aud for the further reason that the whole of the tract does not appear
to be used by the claimant for carrying on the business engaged in.
The right of the claimant to the tract in its existing form appears to
be afiected by a feature or condition other than those already men-
tioned, with respect to which your said office decision contains the
following statement:
L^pon the tmct of land embraced within this survey and running across from one
side to the other is shown a ditch almost a half mile long which the deputy says
'Meads the water from the lake on the west boundary Hue to another below the
native village of l^'O inhabitants on the southeast, and supplies the same with water ",
It is not stated whether this ditch is a natural water course, or built by and for the
natives for supplying the necessary fresh water for their consumption. Upon this
fact hinges the right of the claimant to lands including any portion of the ditch.
An emendation of the survey is suggested in your office decision in
manner therein particularly described, but it appears from a careful
examination of the plat of the survey that if said survey was so
amended the entire portion of the referred to ditch which is included
iu the survey in its original or present form would still be embraced
within the lines of a survey amended and made in the form indicated
in your said office decision, and it matters not whether said ditch be
an artificial or natural water course the right of the native villagers
to the free and uninterrupted use and enjoyment of the said stream of
water would appear to be protected by that particular portion of sec-
tion 14 of the said act of March 3, 1891, in words following:
That none of the provisions of the last two preceding sectious of this act shall be
so eoDstrncd as to warrant the sale of any lands .... to which the natives of
Alaslca have prior rights by virtue of actual oecnpatiou.
If it be ascertained that said ditch is an artificial water course con-
structed by or for the natives for the purpose stated, no portion of the
land upon which it is located should be included in a purchase and
entry made by claimant, and if on the other hand it is found to be a
natural water way the actual and prior appropriation of the same by
the native Alaskan villagers for the purpose of securing the necessary
fresh water supply for domestic use and consumption entitle the said
villagers to the exclusive use, control, and possession of said water
way, and the particular portion of the land which is occupied by said
314 DECISIONS RELATING TO THE PUBLIC LANDS.
water way, and sought to be purchased and entered by claimant, may
be considered, as land in or under the ^'actual occupation'^ of the said
villagers, by virtue of which they have a prior right thereto, within
the meaning of said section 14 of the act herein cited.
For the foregoing reasons if there be an emendation of the survey,
the same should not be amended as suggested in your office decision,
but on the other hand the lines of survey should be run in such manner
as not to include any portion of the above described ditch.
The decision of your office, with the modification herein indicated,
is hereby affirmed.
ALA8KAN LANDS— ACTUAL USK AXD OCCnjP^\JfCY.
South Olga Fishing Station.*
On application to pnrchane Alaskan land under the act of March 3, 1891, the extent
of the actnal nse and occupancy of the land shonld not be determined on the
report of the deputy-surveyor alone, and prior to the submission of final proof.
Secretary Francis to the Commissioner of the General Land Office^ Decem-
ber 23, 1896. (W. C. P.)
The South Olga Fishing Station (a corporation ) has appealed from
your office decision of June 27, 1895, in the matter of survey No. 47, of
a tract of land claimed by said company, situate on the south shore of
Olga Bay, Kadiak Island, Alaska, containing 39.30 acres, and used as
a fishing station.
It seems that said survey was approved on May 29, 1893, but after-
wards by the decision appealed from herein, that action was revoked,
and the survey ^^ suspended pending emendation, for the reason that
more land is claimed than is actually occupied by the claimants for
their business." It is stated in the appeal from this decision that finid
proof has been submitted in support of the application to purchase, bat
this proof presumably had not reached your office when said decision
was rendered. There seems to be no objection to the manner in which
the survey was made nor to the form of the tract.
Claimants are entitled to purchase only so much land as is occupied,
that is, actually used for trade and manufacture, in no case to exceed
one hundred and sixty acres. Instructions (20 L. 1)., 434); McCollom
Fishing and Trading Co., (23 I.. D., 7).
The character of the use made of the land and the extent of the
occupancy thereof can not as a rule be satisfactorily determined until
final proof shall have been submitted, as required by the regulations
provided under said act. Among other things required to be shown
by the final proof are the actual use and occupancy of the land as a
trading i>ost or for manufacturing purposes, the date when the land
■ Not reported in Vol. 23.
DECISIONS RELATING TO THE PUBLIC LANDa 315
was SO occupied, the character and value of the improvements, and the
annual value of the trade and business conducted upon the land. (12
L. D., 583, 590).
The conclusion reached by your office that the tract as surveyed con-
tains more land than is actually occupied is based upon the report of
the deputy surveyor alone. While the surveyor is instructed to report
the fhcts as to occupancy as shown upon the ground, yet it was not
contemplated or intended that such report should be accepted as con-
clusively determining the extent of such occupancy. If such had been
the intention no further proof would have been required. It would be
unwise and unfair to all interested parties to rest the determination of
so important a question upon the statements of the surveyor.
It cannot be satisfactorily determined from the information furnished
by the record now here whether the occupancy of this tract is of the
character contemplated by the act of March 3, 1891, nor can the quan-
tity of land thus occupied be determined.
The decision com2)]aiued of having been rendered before the ques-
tions involved had been properly presented, and therefore upon an
incomplete record, is for that reason set aside, and the case will be
now returned to your office for consideration in connection with the
final proof therein, and such action as may be proper.
SETTLEMENT RIGHTS- ADVERSE CLAIMS.
Henley et al. r. Shabpnaok.
An aUegecl act of eettlem«Dt, set up to establish priority of right as against an
adverse settlement claim, can not be accepted as sufficient, if said aot is not of
a character to give notice of a settlement claim.
Secretary Bliss to the Commissioner of the General Land Office^ March
(I. H. L.) 25, 1897. (E. B., Jr.)
The laud involved in this case is the NE, J of section 20, T. 21 N.,
R. 7 E., Perry, Oklahoma, land district, for which George Sharpnack
made homestead en try. No. 203 September 19, 1893. It lies within what
was formerly known as the Cherokee Outlet and was opened to home-
stead settlement at twelve o'clock, noon, of September 16, 1893.
On October 12, 1893, John Newell, and on December 14, 1893,
Edward S. Henley, respectively, initiated contests against said entry,
each alleging settlement on the land prior to any other person, and prior
to tbe date of the entry. The contests were consolidated and bearing
were duly had, ending March 12, 1895. The local office found in favor
of Henley, recommending the dismissal of Newell's cont.est and the
cancellation of Sharpnack's entry, on the ground that although Newell
was first upon the land his only prior act ot settlement, which consisted
iu nailing a small board, on which his name was written, in a ^^ black
316 DECISIONS RELATING TO THE PUBLIC LANDS.
jack thicket,^ was insufficient notice to Henley; that Henley made dae
settlement prior to said entry, upon which alone Sharpnack relied; and
that Henley had duly complied since with the homestead law. The
local office also found from the testimony that charges of ^^ soonerism'",
made at the hearing by Newell and Henley against each other, were
not sustained by the evidence. Your office decision of September 23,
1895, on appeal by Sharpnack and Newell, affirmed the decision of the
local office, held said entry subject to the prior settlement right of
Henley^ and dismissed NewelPs contest. Motions for review and
rehearing by Newell were denied March 2, 1896. Appeals by Sharp-
nack and NeweU, presenting questions relative to priority of settle-
ment and ^^soonerism" in the case, now bring the same before the
Department.
Sharpnack offered no testimony at the hearing, resting his claim of
priority of right to the land upon his entry alone. The testimony in
the case is voluminous and very conflicting. It is familiar doctrine
that the Department accords great respect to the decisions of the local
officers upon questions of fact, where, as in this case, they heard the
witnesses and had opportunity to observe their demeanor in giving
testimony; and it is well settled that the concurring decisions of your
office and the local office upon such questions, where the evidence is
conflicting, will generally be accepted here as conclusive (Tyler r.
Emde, and cases cited therein, 12 L. D., 94).
The evidence in this case has been carefully read and considered,
and therefrom no warrant is found for disturbing the conclusions of
your office upon the questions of fact. I find, substantially as found by
your office, that while Newell reached the laud early in the afternoon
of September 10, 1893, the day of the opening, he did no act of settlement
thereon that day, save only to nail a small pieceof board, about ten inches
long and less than two inches wide, to a tree in the midst of a piece of
black jack timber near the west side of the land, where it was not con-
spicuous; that he remained on the laud that day only a few minutes;
thathedid not return thereto until September 25, following; that he left
again the next day and did not return and actually take up his resi-
dence upon the land until October 5, following; that Henley went upon
the land early in the forenoon of September 17, 1893; that he laid, that
day, two foundations of poles thereon, blazed trees and put up a stake
eight or ten feet high with flag attached; that he remained there
claiming the land and warning persons ofi" and doing other acts of settle-
ment for one week, when he spent about two days going to Pawnee,
about fiftci'ii miles from his claim, to make application to enter the
land; that from his return, September 26, 1893, until early in Novem-
ber, following, save a few days absence on a trip to Perry, earJy in
October, for the purpose of filing a homestead application, he was on
and about the land, chiefly engaged in building a house, which was
completed October 28, and also in plowing, and doing what he could
DECISIONS RELATING TO THE PUBLIC LANDS. 317
with his scanty means to improve his claim; and that, with the excep-
tion of abont one month ending in December, 1893, during which he
was absent at Okmulgee, Indian Territory, earning money to maintain
and improve his claim, he has continued to reside upon the laud and
make permanent improvements thereon. He denies any knowledge
whatever, and it is not shown that he had any, direct or indirect, of
the claim of ]^ewell to the land until after the latter's return thereto
in October, 1893.
I concur in the conclusion of your office and the local office that the
evidence fails to show that Henley was in any part of the Cherokee
Outlet at any time between August 19, and noon of September 16, 1893,
the period of inhibition against entrance thereinto as i)xed by the
President's proclamation opening the same for settlement (28 Stat.,
1222). And see, as to the period of inhibition, Bowles v. Frazier (22
L. D., 310).
Under the facts in this case, and the law applicable thereto, Henley's
settlement right to the laud is clearly superior to the right of Sharp-
naek to the same under his entry. 1 think it is likewise superior to the
claim of Newell thereto. This conclusion does not in any way contra-
vene, but, on the other hand, I think, harmonizes with, the views of
the Department in Hurt t?. Giffin (17 L. D., 162); Bowles v. Frazier
(supra) ; and Penwell v. Christian (23 L. D., 10), which are leading
cases upon the question: — What are valid acts of settlement upon
Oklahoma lands as between adverse claimants who made the race for a
homestead therein I
In the first of these it was held (syllabus) :
As between two claimants for Oklahoma lands, each of whom alleges settlement in
the afternoon of the day on which the lands were opened to settlement^ priority of
right may be properly accorded to the one who first reaches the tract and pnts up a
"stake'' with the announcement of his claim thereon, where snch initial act of set-
tlement is duly followed by the establishment of residence in good faith.
In the second it was said that —
The initial acts of settlement are addressed to the purpose of giving notice that
the land is taken and claimed ;
And it was held that (syllabus):
Initial acts of settlement are sufficient if of snch character as to give notice that
the land is elatraefl under the settlement laws.
In the third it was held that (syllabus) :
The conditions attendant upon the opening of Oklahoma to settlement require the
recognition of extremely slight initial acts of settlement in determining priorities
between adverse claimants, if such primary acts are followed by residence within
snch time as clearly shows good faith;
and it was further said that —
In cases of this nature, where the good faith of both parties is established and
neither party is guilty of laches, I am of the opinion that the only sound rule that
can be adopted is to award the land to the person who was first upon the land and
performed any act that evinces an intention to assert title.
318 DECISIONS RELATING TO THE PUBLIC LANDS.
In each of these cases the sacceasfal contestant was not only actuany
first upon the land but gave immediate notice of his claim to all comers
by setting up his stake thereon, apparently where it could be readily
seen, and by his personal presence thereon during much of the day
of the race and on the day following. Each of those parties gave^
therefore, much better notice of his settlement, than did Newell, of his
alleged settlement; and neither of the cases cited affords any souud
basis for an argument in his (Newell's) favor. The several acts of
settlements therein, on the day of the race, w«re sufficient notice for
that day, and were, perhaps, all that could well have been given uuder
the conditions of fatigue, anxiety, hurry and confusion ot that day.
But NewelFs single proven act, done and hidden away in a piece of
woods — a small piece of board containing his name in pencil, nailed to
a small tree surrounded by many others in full foliage; inconspicuoas,
and practically invisible at any considerable distance, as he substan-
tially admitted at tbe hearing, — ^was not sufficient notice to protect his
claim against adverse settlement even on the day of the race, and much
less was it notice for more than a week thereafter, against one who,
during that period, made a sufficient settlement thereon in ignorance
of such act or claim, and duly complied with the homestead law there-
after.
This disi)oses of the cas^ upon the merits. It is unnecessary to dis-
cuss appellant NewelPs assignments of error relative to the denials of
the motions for review and rehearing. The affidavits of Hook and
others, relative to NewelPs alleged settlement, are merely cumulative
upon that point and afford no ground for a rehearing.
The decision of your office is affirmed in accordance with the fore-
going.
RAIX.ROAI> GRANT-SECTIOX «, ACT OP APRIL «1, 1876.
INMAN V. NOBTHEBN 1*ACIFIC R. R. CO.
An entry allowed, under the rulings and deoiaions of the Land Department, of land
to which a homestead claim had attached prior to notice of withdrawal on gen-
eral route, that remained of record till after definite location, and was then
abandoned, is within the confirmatory provisions of section 2, act of April 21,
1876, though made after the passage of said act.
Secretary Francis to the Commissioner of the General Land Office^ Feb-
(I. H. L.) rnary 23^ 1897. (F. W. C.)
James Inman has appealed from the decision of your office, dated
October 26, 1895, holding for concellation his homestead entry cover-
ing the W. i of the SE. J of Sec. 35, T. 13 N., R. 2 W., Vancouver
land district, Washington, for conflict with the grant to the Northern
Pacific Railroad Company.
Said tract is within the primary limits of the grant to said company
DECISIONS MLATING TO THE PUBLIC LANDS. 319
upon the portion of its road between Portland, Oregon, and Tacoma,
Washington, to aid in the construction of which a grant was made by
the joint resolution of May 31, 1870 (16 Stat., 378). It is within the
limits of the withdrawal upon the map of general route filed August
13, 1870, and within the primary limits adjusted to the map of definite
location filed September 13, 1873.
The withdrawal upon the map of general route was not received at
the local oflfice until October 19, 1870. Prior to this time, to wit, on
August 23, 1870, Anna M. Lane was i)ermitted to make homestead
entry No. 1131 for the SE. ^ of said Sec. 35, which entry remained of
record until November 26, 18 .'7.
In the Ciise of Northern Pacific Eailroad Company r. Bums (6 L. D.,
21), it was held that a homestead claim, existing prior to the receipt of
notice of withdrawal on general route of the Northern Pacific, excepts
the land covered thi reby from the operation of the grant, it being held
that said entry was confirmed by the first section of the act of April 21,
1876 (19 Stat., 35), without regard to the question as to whether said
entry was ever completed.
This decision was overruled by departmental decision of March 12,
1895 (20 L. D., 192), in which it was held that the confirmation of entries
nnder section 1 of the act of April 21, 1876, is solely for the benefit of
the individual claimant, conditioned upon his compliance with law, and
was not intended to confirm the entry absolutely, as against the right
of the company, so as to except the land from the grant in favor of any
other settler.
Following the decision in the Burns case, before the same was over-
ruled, James Inman, the present claimant, was, on November 27, 1888,
permitted by the local officers to file pre-emption declaratory statement
for the land here in controversy, which filing he afterwards, on October
31, 1889, transmuted to a homestead entry.
By the second section of the act of April 21, 1876, it is provided:
That when at tbe time of such withdrawal as aforesaid valid pre-emptiou or hf >me-
stead claims existed upon any lands within the limits of any such grants which
afterward wero abandoned, and, nnder the decisions and rulings of the Land Depart-
ment, were re-entered by pre-emption or homestead claimants who have complied
"witli tho laws governing pre-emption or homestead entries, and shall make the
proper proofs required nnder such laws, such entries shall be deemed valid, and
patents shall issue therefor to the person entitled thereto.
The facts heretofore recited bring the entry by Inman clearly within
th^ provisions of the second section of said act. (See decision in case
of Northern Pacific Railroad Company v. Symons, 22 L. D., 686.)
Year office decision holding Inman^s entry for cancellation is there-
fore reversed, and upon showing compliance with law his entry will be
deemed valid and patent issue thereon under the second section of the
act of April 21, 1876.
320 DECISIONS RELATING TO THE PUBLIC LANDS.
RAILROAD GRANT- COKFL.ICTING GRA?0:>*— AIXIUSTMENT.
Northern Pacific R. R. Co.*
In the adjustment of the Northern Pacific grant between Thoouon and Dulath Mid
grant should be charged with all lands received by the Lake Superior and Mis-
sissippi company between said points uuder the prior grant thereto, whether
within the primary or indemnity limits of said grant.
Secretary Francis to the Commissioner of the General Land Office^ Novem-
(I. H. L.) her 17, 1S96. (F. W. C.)
With your office letter of October 7, 1896, was forwarded, with favor-
able recommeDdation, clear list of selections, made on behalf of the
Northern Pacific Railroad Companj-, covering 1,250.20 acres, within
the St. Cloud land district, Minnesota. These lands are within the
second indemnity belt, and were selected on account of losses set forth
in the list submitted, which upon inquiry at your office I loam are
lands lost to the grant by reason of patents issued to the Lake Superior
and Mississippi Eiver Railroad Company under the grant of May o,
1864 (13 Stat., (i4). These lands are opposite the portion of the last
mentioned roa<l between Thomson and Duluth, which road was used
by the Northern Pacific Railroad under an agreement entered into with
the Lake Superior and Mississippi River Railroad Company, which
agreement has been held by this office to have been in effect a confed-
eration, consolidation or association of the latter company as contem-
plated by the provisions of Sec. 3 of the act of July 2, 1864 (13 Stat.,
365), by which the grant to the Northern Pacific Railroad was made.
In considering the question as to the proper establishment of the
terminal of the Northern Pacific grant at Duluth, it was held in depart-
mental decision of October 29, 1896 (23 L. D., 428), that the Northern
Pacific Railroad Company will not be entitled to indemnity for any
lands received by the Lake Superior and Mississippi River Railroad
Company opposite the portion of the road between Thomson aiid
Duluth. In referring to that part of the act of July 2, 1864, supra,
wherein it is provided
that if said route shall be found upon the line of any other railroad rente to aid in
the construction of which lands have heretofore been granted by the United States,
as iVir as the routes are npon the same general line, the amount of land heretofore
granted shall be deducted from the amount granted by this act,
it was held that the intention of Congress evidently was to provide
against making a double grant where two land grant railroads were
found to be upon the same general line, and this can only be arrived
at by charging to the Northern Pacific all lands received by the com-
pany to which the first grant was made, opposite the portion of the
linea which are similar, whether within the primary or indemnity limits
of that grant.
Not reported in Vol. 23.
Mvi I ■ I TV" -T^-'«*— ^^-»--^'^^— ^^-^^^^ \
DECISIONS RELATING TO THE PUBLIC LANDS. 321
It is clear therefore that the basis as assigned in the list subuiitted
fur the approval of this Department is not a satisfactory basis, and
tbe list is herewith returned without my approval.
RAILROAD SELECTIONS MINERAL LANDS.
Instructions.
Secretary Bliss to the Commissioner of the Oeneral Land Office^ April
9, 1897.
I am in receipt of your letter **!N" of the 2nd instant, requesting an
ameudment of the last paragraph of the circular of July 9, 1894: (19
L. D., 21), providing for the examination of selections by railroad com-
panies of lands in mineral belts so as to read as follows:
That all lists that have been heretofore prepared in accordance with any rulesy
regalatious or instructions of the Secretary of the Interior, where such rules have
been roniplied with (such as furnishing .affidavits showing the non-mineral character
of tbe lauds in accordance with the instructions of tbe Interior Department) and
euch mineral affidavits furnished /or each and every legal subdivieion shall be excepted
from tbe terms of the foregoing regulations.
Said paragraph, as now in force, reads in lieu of the underscored
wonls in the proposed amended paragraph above indicated, "for each
subdivision of 40 acres."
After reciting the history of the occasion that gave rise to the circu-
lar of July 9, 1894, you stated as follows :
To re4]uire the non-mineral affidavits to specify ''each subdivision of forty acres'^
would disturb tbe established practice of this office, require new affidavits in State
and railroad selections, and compel a new form of affidavit to be made in these cascK.
After an examination of the question it appears to me that the pro-
posed amendment of said paragraph will operate as effectually to
protect the government against the selection of mineral lands by rail-
roads and states under their grants as it now does in the present form.
Said paragraph is therefore hereby amended so as to read as follows :
That all lists whioh have been heretofore prepared in accordance with the rules,
regalations or instructions of the Secretary of the Interior, where such rules have
been complied with (such as furnishing affidavits showing the non -mineral char-
acter of the lands in accordance with the instructions of the Interior Department)
and such mineral affidavits furnished far each and every legal snhdivieion shall be
excepted from the terms of the foregoing regulations.
It is also hereby ordered that the form of the non- mineral affidavit
now in use in your office be amended as follows: After the following
clause in the body of the affidavit "but with the object of securing
said land for agricultural purposes", you will insert the following:
^'and the above and foregoing statements as to the character of said
laud apply to each and every legal subdivision thereof."
10671— VOL 24 ^21
4322 DECISIONS RELATING TO TUE PLTBLIC LANDS.
PRACTICE— NOTICE OF APPEAL-^JHRISDICTION.
Van Dyke v. Lehbbass.
.An Appeal will not be entertained, if notice thereof is not eenred on the opposite
party within the time allowed for filing the same.
^Secretary Bliss to the Commissioner of the General Land Office^ April
iW. V. D.) 19y 1897. (E. B., Jr.)
Id tbe cose of Frank H. Van Dyke v. Albert Lehrbass. involying the
homestead entry No. 6484 of the latter, made November 6, 1891, for
tbe SW. J of section 8, T, 17 N., R. 3 E., Wausau, Wisconsiu, land
district, said Van Dyke has filed a motion to dismiss the appeal of
Lehrbass, on tbe ground that no copy of tbe api)eal was served upon
appellee within tbe time allowed for filing tbe same.
It appears that on November 19, 1806, your office, on appeal by Lehr-
bass, affirmed the decision of tbe local office, holding that Lehrbass had
failed to reside upon bis homestead as required by law, and that his
€ntry should therefore be canceled. On November 21, 1896, the local
office notified Lehrbass by mail of your office decision and of bis right
of appeal therefrom, enclosing a copy of tbe decision. This notice, it
is alleged under oath by Van Dyke, and not denied by Lehrbass, the
latter received on November 24tb following. On February 8, 1897, the
folio wiDg notice was served on Van Dyke by Lehrbass:
In the matter of the homestead entry of A. Lehrbass No. 6484, to the SW. ^ of Sec.
.8, township 17 N., R. 3 E.—
To Frank H. Van Dykk,
Cantfitantf —
Take Notice, That on affidavits of which the following are copies, I have and do
hereby appeal f^om the decision of the Register 6l Receiver of the Land Office at
Wausaa, Wisconsin, denying said H. £., to the Secretary of the Interior at Wash-
ington, D. C, for a reversal of said decision, and the allowance of my said H. £.
February 4th, 1897.
(Signed) Albebt Lbhubass,
Appellant.
With this notice were what purport to be copies of affidavits of eight
persons, including Lehrbass and bis daughter; relative to Lehrbass^
residence and improvements on tbe land. A duplicate of tbe above
notice, to which were attached what appear to be tbe originals of the
above copies of affidavits, sworn to before "Richard Smith, Ct. Com.
Juneau Co. Wis.," was filed in your office on February 11, 1897. Said
iSmitb is tbe attorney of record for Lehrbass.
Under tbe rule in Murphy v. Logan (19 L. D., 478), allowing seventy
•days within which to file appeal from a decision of your office when
notice of tbe same is given through tbe mails by tbe local office, the
time within which appeal from your office decision in this ease might
liave been filed expired on January 30, 1897. Notice of appeal was not,
DECISIONS RELATING TO THE PUBLIC LANDS. 323
therefore, given the appellee witbin the time require<l by the rules of
practice (Rales 87 and 03), which make it necessary that a copy of the
notice of appeal and specification of errors shall be served on the oppo-
Bite party within the time allowed for filing the same.
It is unnecessary, in view of the foregoing, to discuss the inherent
and obvious defects in the appeal itself. Kotice of the appeal having
been given too late, the Department is without jurisdiction, under its
role, to entertain the same (Gregg v. Lakey, 16 L. D., 39),
The motion is allowed, and the appeal dismissed.
INBIAN^ LiANI>S— ALLOTMENT RIGHT8-ADV£RSE CLAIMS.
Philomme Smith et al.
The bnrden of proof rests upon one who attacks an approved allotment^ alleging a
saperior right to the ]aud covered thereby.
Ao allotment duly made and approved must be regarded as a judicial determination
that the allottee is entitled to an allotment in the reservation involved, and such
question, so determined, must thereafter be held resjudioata.
A departmental determination that an applicant for the right of allotment is entitled
to recognition, 90 far as tribal relationship is concerned, removes such question
from further consideration in snbsequent proceedings involving the assertion of
said right.
An allotment made and approved on the selection of the allotting agent, and with-
out a formal selection on the part of the aUottee, is not for such reason invalid.
An adverse claim set up against an approved allotment by another applicant for the
right of allotment and based on alleged prior selection and improvement of the
tract in question, can not be recognized, in the absence of an affirmative show-
ing of injustice done, amounting to a fraud upon his equitable rights in the
premises.
The relinquishment of an allotment is inoperative if not approved by the Depart-
ment.
Asmtant AUamey-Oeneral Van Devanter to the Secretary of the Interior^
April 19^ 1897. (E. M. E.)
I am in receipt, by reference from you, of the report of the Com-
missioner of Indian Affairs, of date March 16, 1897, together with a
request for an opinion '< as to the rights of Philomme Smith et al, and
Mrs. Loaisa Morrisette et aZ., to the allotments of lands claimed by
them respectively on the Umatilla reservation."
The record shows that on Jnly 1, 1893, Assistant Attorney-General
Hall rendered an opinion in which he held that these parties were not
entitled to allotments in the Umatilla reservation ; but, subsequently,
the matter being before him on review, he reversed his holding and
decided that they were so entitled.
The matter having been referred to his successor, Assistant Attorney-
General Little, an opinion was rendered by him on August 6, 189G, in
which the conclusion reached by Assistant Attorney-General Hall in
his last-mentioned opinion, was affirmed and the suggestion made that
324 DECISIONS RELATING TO THE PUBLIC LANDS.
ii. Lsiuuch as it appeared that the showing theu before the Department
wuti ex parte in character, a hearing be had to determine the qu«i»tiou
as to whether these applicants were entitled to have allotted to them
the varioas tracts selected by them. Accordingly, a hearing was duly
had and the allottees hereinafter referred to were csilled upon to show
cause why the allotments made to them should not be canceled aud
the^e petitioners awarded the land.
In this connection, it appears that Philomme Smith claims the SE. \
of Sec. 20, T. 3 N., R. 34 E., Oregon. This tract has been allotted to
Heyutsemilkin, an Indian, and the allotment was approved by tbe
Department April 12, 1893, and, by the approval of the Department,
leased for two years from March 1, 18U4.
Charles Smith, a minor child of Philomme Smith, claims the NC. \
of the NE. 4 of Sec. 29, of said township and range. The NW. J of tlie
KE. j^, ssime section, is claimed for Maggie Smith, minor child of Mrs.
Smith. The SE. ^ of the NE. \ of the said section is claimed for Jeu-
nie Smith, minor child of Mrs. Smith. The SW. \ of the NE. J of said
section, is claimed for Lura Smith, minor child of Mrs. Smith, all of
which four forties were allotted to Martha Hebeart, a Walla Walla
Indian, and approved by the Department April 12, 1893.
The NE. J of the N W. J of Sec. 29, of the sanie township and range,
IB claimed for George Smith, minor child of Mrs. Smith. The SK. ^ of
the N W. \ of said section, is claimed for Sofia or Sophia Smith, a minor
child of Mrs.'Smith. The W. ^ of the NW. \ of said section is claimed
for James Smith, minor child of Mrs. Smith, which eighty, with tbe
two above mentioned forties, were allotted to Margaret Bounier, a
Walla Walla Indian, approved by the Department April 12, 1803, and,
by its approval, were leased for two years commencing on November
1, 1894.
The W. ^ of the SE. J of Sec. 29, is claimed for William Smith, minor
child of Mrs. Smith. The NW. J of the SE. i was aUotted to Mary B.
Guyott, a minor child of Mary Guyott, and the SW. J of the SE. \ to
Carrie Ghalifoe, a minor child of Julia Ann Ghalifoe. The ])ortion
allotted to Mary B. Guyott was leased, with the approval of the Depart-
ment, for three years from March 1, 1894.
Mrs. Louisa Morrisette, or Maroette, claimed the NE. \ of section 14,
T. 3 N., B. 3 E., which tract was allotted to Charles McWhirk aud tbe
allotment was approved by the Department April 12, 1893.
Mrs. Mary Pecar, daughter of Louisa Morrisette, and over eighteen
years of age, claims the E. ^ of the SE. \ of Sec. 29, and the E. ^ of the
NE. :| of Sec. 32. These tracts were allotted to Mary Guyott aud
approved by the Department April 12, 1893, and by its approval have
been leased for three years from March 1, 1894.
August Meshee, or Misplay, a 'minor child of Mrs. Mary Pecar and
grandson of Louisa Morrisette, claims the S W. J of the NE. \ of Sec 32,
and John Meshee or John Albert Misplay claims the N W. \ of the N£. i
DECISIONS RELATING TO THE PUBLIC LANDS. 325
of said section, both of which tracts were allotted to Louis Chalifoe,
aiid approved by the Department on April 12, 1893.
It thus appears that there are eight contests in this proceeding
between as many, or more, parties, and involving dififerent tracts of land.
The hearing ordered by the Department in carrying out the sugges-
tion of Assistant Attorney-General Little was had before the Indian
agent at the Umatilla agency in Oregon, to which place and before
whom the various parties were cited to appear. On February 17, 1897,
iD rendering his opinion, the Indian agent said:
If BettHnjT OT) land before allotment in good faith, and by direction of the oliief of
tLi* tribe, whosr word seems to have been law at that time, and makuig valuable
iniprovementH on the same gives an Indian a right to that particular land, then the
allotments to the different parties of the land so claimed, by reason of priority of
occupancy and improvement by Mrs. Philomme Smith ought to be canceled and
Mrs. Smith and children allotted thereon, and I so recommend.
As to Mrs. Morrisette's claim, I am not so positive, and cannot, from the evidenoe,
make a ronclusion in the matter, and respectfully submit the same without recom-
mendation.
In the letter of the Commissioner of Indian Affairs of date March
16, 1897, it is stated as a reason for making no finding of facts upon
the various issues joined, that —
As the claims of Mrs. Smith and Mrs. Morrisette et al. to the land involved, were
paiised upon by the Assistant Attorney-General for this Department in his said
opinion dated August 6, 1896, concurred in by the Department, and in view of the
instnictions contained in departmental letter of September 24 last, it is thought
proper to submit the new evidence in these cases to the Department without com-
ment or recommendation, to the end that the Department may reach such conclusions
in the matter as may be justified by the evidence submitted by the allottees when
conBidered in connection with the opinion of the Assistant Attorney-General and
the evi(]ence subiiiitted before the same was rendered, by the petitioners.
It is to be regretted that the Commissioner of Indian Afi'airs made
no findings of facts to assist in determining the vexed questions of fact
presented by this voluminous record and its complicated issues.
It apiiears that the standing of the parties has been misunderstood.
It is set out in the record that Smith and Morrisette et al. are the
claimants and tlie nllottees are the contestants. This is an error and
one of moment. The contestants are Smith and Morrisette et al and
the allottees are the defendants. Upon the attacking party rests the
burden of proof. The fact that these allottees were called upon to show
cause why their allotments should not be canceled in no wise aflPected
tboir status. It is the duty of these contestants to affirmatively show
6U('h a state of facts as will necessitate the cancelling of the allotments
already mode. 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 contestants to present the requisite showing of
sui)erior rights.
Much testimony was introduced at the hearing for the purpose of
showing that certain of the allottees were not entitled to allotments on
326 DECIblOXS RELATING TO THE PUBLIC LANDS.
this reservation. The allotments have been duly made and approved
by the Department. The determination that those allotted were so
entitled was a jadicial one, and the question thus raised became res
judicata and will not now be entered into in these proceedings.
On the other hand, an attempt is made to show that Philomme Smith
and* Louisa Morrisette are not Indians entitled by reason of tribal rela-
tionship to allotments. In so far as they are concerned, this Depart-
ment by approval of the opinion of Assistant Attorney-General Little,
stipra^ has determined that question in the affirmative and that issue is
therefore concluded.
Aside from this it is doubtful if the allotments heretofore made could
be attacked in the manner set out in these proceedings.
The question for determination presented by this record is: Are the
petitioners entitled to have the allotments made and approved, canceled
by reason of superior equities existing in themf
The act authorizing these allotments is that of March 3, 1885 (23
Stat., 340), and provides:
Thtkt the President of the United States cause lands to be allotted to the confeder-
ated bnnds of Cayase^ Walla Walla, and Umatilla Indians, residing npon the Uma-
tilla reservation in the State of Oregon as follows, of agricultnral lands:
To each head of a family, one hundred and sixty acres; to each single person over
the age of eighteen years, eighty acres; and to each orphan child being und<T eight-
een years of age eighty acres; and to each child under eighteen years of a|^, not
otherwise provided for. forty acres.
Allotments to heads of families and to children under eighteen years of age belong-
ing to families shall be made npon the selections made by the head of the family;
allotments to persons over eighteen years of age not classed as heads of families
shall be made upon the selections of such persons; and allotments to orphans shall
be made upon selections made by the agent in charge, or other person duly authorised
by the Department
Before any allotments are made, a commission of three disinterested persons to be
appointed by the President shall go upon said reservation and ascertain as near as
may ht*. the number of Indians who will remain on said reservation and who shall be
entitle^l to take lands in severalty thereon Said commission shaU report to
the Secretary of the Interior the number and classes of persons entitled to allot-
ments, as near as they may be able to.
April 24, 1891, this Department approved the instrnction issued to
Messrs Bnshee and Eddy, allotting agents upon this reservation, found
in letter books 215-216, contained in YoL 108, page 307, of the Land
Division of the office of Indian Affairs.
Some stress has been laid by the contestants upon the fact that no
formal selections of their allotments were made by some of these allot-
tees prior to the making thereof. I am of opinion that there is no invali-
dating consequence by reason of allowing the allotting agents to select,
and the approval of such selections when made.
Ill the case of Louisa Morrisette v, McWhirk, involving NE. J, Sec,
14, T. 3 K, E. 34, the evidence shows that in 1889 Charles McWhirk,
the defendant, selected this land and that subsequently it was allotted
DECISIONS RELATING TO THE PUBLIC LANDS. 327
to him. The land was first claimed by one Maria Bushman, who after-
wards married Morrisette. She improved the land by building a fence
and cultivation. Before her death she expressed the desire that this
allottee should have the land ; thereupon, he came from Montana, where
he resided, to this reservation and asserted claim to the land, which,
as already set out, culminated in the allotment being duly made. It
appears from the record that this plaintiff, Mrs. Louisa Morrisette, for-
merly Mrs. Ceror, married Morrisette after the death of Maria Morrisette,
and asserted claim to this land subsequently in point of time to such
assertion by the defendant She did not in any way during her life-
time, as far as this record shows, make any improvements upon this
land, and she never lived thereon.
In the case of Philoinnie Smith v. Heyutsemilkin, involving the SB.
I of Sec. 20, the same township and range, it appears from the record
that at the time of the allotment to the defendant the land had been
selected by Mrs. Smith, and that a bam had been built thereon, some
fencing done, and a well dug, with probably some ploughing. There
is absolutely no evidence offered by this contestant as to the value of
these improvements and there is nothing in the record from which it
can be judged.
This Department has determined that these plaintiffs (Mrs. Morrisette
and Mrs. Smith) are entitled to allotments. That action was in nowise
a determination that they were entitled to allotments to these tracts f
that question depends solely upon the special equities present in them
arising from their actions upon, and in reference to, these several tracts*
It is a familiar rule of the Depiirtment that needs no citation of
authority, that the establishment of a reservation prevents the acquire-
ment of individual rights inharmonious with the purposes of its fbrma-
tioD.
The object to be attained by making this reservation was to have »
general home for these Indians until the allotment in severalty. Under
these circumstances, was it possible for one to acquire a personal prop-
erty right prior to the time of allotment by mere selection and slight
improvements f It was the duty of the allotting agents in the first
instance, to set apart the allotments. Until this was done, it may be
said in general, that no rights could be acquired by an individual. By^
this it is not meant that the acts of these officials in making allotments^
could not be reviewed by the Commissioner of Indian Affairs, or by
this Department, but that in the absence of an affirmative showing of
injustice done, amounting to a fraud upon their equitable rights by rea-
son of the amount and extent of improvements placed thereon by some
one other than the allottee, the acts of allotment should stand.
To hold that rights could be acquired by selection and improvement
in the face of adverse action by the allotting agents, would be, in effect,
to say that the establishment of the reservation was without force and
effect in setting aside the land so withdrawn for the purposes in vicw^
328 DECISIONS EELATING TO THE PUBLIC LANDS.
and would be to apply the ordinary doctrine of settlements as appli-
cable to the preemption and homestead law, which was clearly never
contemplated.
Applying these views to the causes at bar it is easy to see thatLoaU^a
Morrisette was not entitled to the allotments asked for. There are no
equitable rights in her, so far as this record discloses, such as demand
the cancellation of the allotment heretofore made. Her selection of
this land — even if that gave her any rights — was subsequent to that
of McWhirk. I am, thei*efore of opinion that the allotment should
stand.
A somewhat dififerent case confronts us in the case of Smith v. Heyu^
semilkin. As has been seen, that allotment was made after its selec-
tion by Mrs. Smith and after some improvements had been placed upon
the land by her, yet the record fails absolutely to disclose the value of
these improvements. It has been already said that mere selection and
slight improvements would not suffice to defeat an allotment made in
due form and which has received the approval of the Department
The burden of proof rested with the contestant. Upon her the duty
lay of affirmatively presenting a case that would demand the cancella-
tion of the allotment. She has had her day in court, carrying with it
the opportunity and obligation of presenting her case fully, and in the
entire absence of any showing as to the value of these improvements
the allotment made must stand.
Ill the case of Charles Smith, Maggie Smith, Jennie Smith and Lura
Smith V. Martha Hebeart, now Martha Bonifer, involving the NE. ^ of
Sec. 29, it appears that prior to the allotment made the defendant,
these plaintiffs — minor children of Philomme Smith — had this land
selected for them by Mrs. Smith, who, prior to the time of allotment,
had the house in which they lived, built thereon. As in the case, supra^
no evidence whatever is introduced as to the value of this house, or the
other improvements in the way of fencing and cultivation. For the
reasons above given, the allotment will stand.
It appears in the case of George Smith, Sofifa Smith and James
Smith V. Margaret Bourner, involving the NW. } of Sec. 29, that the
land was selected for them the plaintififs, by Mrs. Smith whose minor
chiklren they are, prior to the allotment to the defendant. Aside from
some fencing and cultivation no improvements have been placed on
this land by the plaintiffs. A house was built by the defendant. In
consideration of these facts it is apparent that the allotment should
stand.
In the contest of William Smith u. Mary B. Guyott and Carrie Chal-
ifoe, involving the W. J of the SE. J of Sec. 29, the plaintiff' does not
live upon this land. There is no evidence of the value of improve-
ments upon the land, if any, and the allotment should stand.
In the case of Mary Pecar v, Mary Guyott, now Mary Mclntyre,
involving the B. J of the SE. J, of Sec. 29 and the E. i of the NE. i of
DECISIONS UELATING TO THE PUBLIC LANDS. 329
Sec. 32, the plaintiff is the daughter of Louisa Morrisette. One Prosa
Pecar was living on the defendant's land at the time of the allotment.
The Pecars did not claim the land. They wanted to be paid for the
house and fence. A law suit resulted and the Pecars got the crop for
one year in settlement for the improvements. Mrs. Mclntyre went
into possession. It would seem from this that no good reason api)ears
for disturbing the rights of the allottee.
August Meshee or Misplay, and John Albert Meshee or Misplay v,
Louis Chalifoe involves the W. J of the NE. J of Sec. 32. The evidence
shows that these contestants were aware, or their natural guardian
was aware, that this land was claimed by the defendant at the time
they first asserted right thereto. They can not, in consequence, set
up an equitable claim to the laud in view of the fact that it was subse-
quently allotted to the defendant.
It appears from the evidence submitted at the hearing that William,
George and Sofifa or Sophia Smith, and Louisa Morrisette are dead.
The question arises, therefore, whether their heirs are entitled to have
land allotted to them. In the instructions issued to Messrs. Bushee
and Eddy, allotting agents hereinbefore referred to, it was said (page
314) ^* all persons 7U}w living whose names appear on the census rolls of
1SS7, are entitled to and will be given allotments;" and further on
therein it is more fully and specifically stated (page 320) :
Since the foregoing was prepared my attention haa heen called to a recent inspec-
tion report at the Umatilla agency, hy Inspector Gardner, in which he observes that
aqaestion which greatly concerns the Indians is '^ whether or not a person living at
the time of making the agreement, and wbo has since died, is entitled throngh his or
her heirs to receive an allotment of land." The inspector states that he informed the
ludinns that in his opinion deceased parties had no right and that allotments would
ouly be given to those living at the time of making the allotments. Upon this sub-
ject I have to say that allotments will be made only to those who are living when
the allotments come to be made. The heirs of an Indian who was living at the date
of the acceptance of the act of 1885 by the Indians and who has since died cannot
have the aUotments to which the deceased party would have been entitled had he
hved.
These instructions have been approved by the Department and it may
he that the heirs of those mentioned would not be entitled to have
alJutments made. On the other hand, the true test in such cases may
not depend upon the person in whose behalf the allotment is asked
heing alive when the specific allotment asked for is made. It may be
sufficient if such person was alive when the allotment should have
heeii made. It will be time enough to consider this question when it is
pre^uted by the applications of the heirs of these parties.
There is contained in the record the relinquishment of Charles Mc-
Whirk and Martha Bonifer. The former sets out that since the time of
his ''allotment of and to said lauds (it) has been contested by Louise
Morrisette (Marcette) who claims a right to the same premises," and in
cousequeuce recites ^^that it is my desire that the allotment made to me
330 DECISIONS RELATING TO THE PUHLIC LANDS.
of the north-east quarter of section fourteen (14) in township three (3)
north of range thirty-four (34) east of the Willamette meridian, be can-
celed and vacated," on the express condition that he be allotted a certain
tract of land thereafter described.
The relinquishment of Martha Bonifer, formerly Hebeart, was also
upon the express condition that she receive a particular tract of land*
On December 15, 1896, subsequently to the relinquishment which bears
date December 9, 1896, she made an afiQdavit to the effect that said
relinquishment was the result of annoyances to which she had been
subjected on account of adverse claims to the land allotted to her, and
representations that she could get other land equally good, and she
requested that said relinquishment be disregarded.
No right of relinquishment exists in an Indian. It may be that sach
action, with the approval of the Department, might be taken, but in
the absence of such approval the act of the Indian is valueless to clear
the record of the allotment, or in anywise affect its validity. lUx parte
George Price (12 L. D., 102). No good reason appearing why the allot-
ments made to these Indians should be canceled, no reason is seen for
approving the relinquishments made. Aside from the general views
here expressed, it does not affirmatively appear fit>m this record that
the relinquishments — even if the Indians had the authority to make
and execute them — have ever become effective or operative, becaa;^ of
the fact that they were conditioned upon obtaining certain lands. It
is not shown that this Department is in position to award them the
land for which they applied.
Approved, April 19, 1897.
C. N. Bliss,
Secretary.
INDIAN l4ANI>8-AL.IX>TMENT— ACT OF MARCH «, 18S0.
J. H. SCISSON.
Under section S, act of March 2, 1889, all '^Indians receiving rations" at a reserra-
tiou, on the date of the President's order directing allotments thereof, are entitled
to recognition under said order.
Assistant Attorney- General Van Devanter to the Secretary of the Interior^
April 19y 1897. (W. C. P.)
I am in receipt of the papers in the matter of the application of J. H.
Scisson. a mixed blood Sioux Indian, for allotments to his two minor
children upon the Hosebud reservation, with a request from First
Assistant Secretary Sims <^for an opinion as to whether the children
alluded to in the within letter are entitled to allotments on the Hose-
bud reservation.''
By the act of March 2, 1889 (25 Stat., 888), certain portions of the
great reservation of the Sioux Indians in Dakota were set apart as
reservations of the Indians receiving rations at the several agencies
DECISIONS RELATING TO THE PUBLIC LANDS. 331
\rilbiii said •* great reservation,'^ and provision was made for the cession
of the remainder of said reservation to the United States. It was pro-
vided in said act (Section 8), that the President should, whenever in
his opinion any of said reservations was advantageous for agricultural
or grazing purposes, and the Indians were sufficiently advanced in
civilization, cause the lands of such reservation to be allotted to the
Indians located thereon. It was further provided (Section 13) that any
Indian receiving and entitled to rations and annuities at either of the
agencies named in said act, at the time the same should take effect,
but residing upon any portion of said " great reservation'' not included
iu either of the separate reservations therein established, might at his
option have his allotment upon the land where he was thus residing.
J. H. Scisson, a mixed blood Sioux Indian drawing rations at the
Eosebud agency, elected to take his allotment upon the ceded lands,
and the same was awarded to him. Afterwards he was married, and
before the President's order, dated June 22, 1893, directing the allot-
ment of lands upon the Rosebud reservation, two children were born
to him.
Section 8 of said act, so far as it is necessary to consider it in this
case reads as follows :
That the President is heruby authorized and required, whenever in bis opinion
any resurvation of Kuch Indians, or any part thereof, is advantageoas for agricul-
tural or grazing purposes, and the progress in civilization of the Indians receiving
rations on either of said reservations shall be such as to enconrage the belief that
an allotment in severalty to such Indians, or any of them, would be for the best
interest of said Indians, to cause said reservation, or so much thereof as is neces-
sary, to be surveyed, or resarveyed, and to allot the lands in said reservation in
Beveraltv to the Indians located thereon as aforesaid.
The phrase — *' Indians located thereon as aforesaid" — does not of
itself furnish a description of the persons entitled to allotments, but
refers to a class previously described. Nowhere in said act, however,
before this, is the word " located ^ used in describing the connection of
the Indians with any reservation. The various reservations are set
apart for the Indians <^ receiving rations and annuities" at certain
agencies, and in said section eight it is provided that allotments shall
be made when the '< Indians receiving rations" upon any specified
reservation shall be deemed prepared therefor. Naturally the condi-
tioQ of the i)er8ons entitled to take allotments would be taken as the
best criterion for determining the time at which such allotments should
be made, and therefore when the law provides that the (condition of
'^Indians receiving rations upon any of said reservations" shall be the
criterion for deciding as to when allotments shall be made on that
reservation, it must be presumed that the persons thas described are
the ones entitled to allotments. The only logical conclusion to be
drawn from the language used is that the phrase ^^ Indians located
thereon as aforesaid" refers to the preceding descriptive phrase
'^Indians receiving rations" and is defined thereby.
332 DECISIONS RELATIKG TO THE PUBLIC LAKDS.
These cliildren were, at the date of the Presideut's order directing:
allotuieutK to be made ou the llosebud reservation, receiviug rations
there and, so far as the facts before lue show, were entitled to allot-
nients, unless it be that the fact that they were not actaally residing
within the boundaries of that reservation debars them from partici
pating in the division of the lands therein. If the conclusion reached
herein as to the proper construction of the law be the correct one they
are not thus barred.
In my opinion, and I so advise yon, these children are, so far as the
record before me shows, entitled to allotments upon the Bosebnd
reservation.
Approved, April 19, 1897.
0. K. Bliss,
Secretary.
RATLROAB ANB TV AGON ROAD GRANTS— COXFLTCTIXG LIMrrS.
Eastern Oregon Land Company.
Act ion will be snspended on all entries allowed for lands within the conflicting lim-
its of the grants for The Dalles Military Wngon Road Co., and the Northern Pacific
R. R. Co., pending a jndicial determination of the status of said lands.
Secretary Bliss to the Commissioner of the General Land Office^ April
(W. V. D.) J21, 1897. (F. W. C.)
With yoar office letter of March 19, 1897, was transmitted a petition,
filed on behalf of the Eastern Oregon Land Company, successor to The
Dalles Military Wagon Road Company, requesting that action be sus-
pended upon all entries allowed for lands within the conflicting limits
of the grants for The Dalles Military Wagon Road Company and tbe
Northern Pacific Railroad Company. Upon this said petition your
office makes no recommendation.
The material facts governing the rights of Tbe Dalles company in the
premises are similar to those in the case of the conflict between the
grants for the Northern Pacific Railroad Company and the Oregon and
California Railroad Company, which were considered in departmental
decision of February 17, 1892 (14 L. D., 187), in which it was held
(syllabus) :
The grant of the odd numbered sections within the overlapping primary limits
of the Kortbern Pacific, and Oregon and California ronds, east of Portland, Ore-
gon, was for the benefit of the former company under tbe act of Jaly 2, 1864, and
the forfeiture thereof by the act of September 29, 1890, is to the extent of tlie
withdrawal made under the sixth section of the act of 18&1; and under said act of
forfeiture no rights of the Oregon and California road are recognized within said
conflicting limits.
Within the conflict last referred to, a large quantity of land bad been
patented on account of the Oregon and California Railroad grant, and
DECISIONS RELATING TO Tllfc PUBLIC LANDS. 333
suit was instituted to restore the title of said tracts to tlie United
States.
It api>ear8 that ax)on an application iiled on behalf of the Oregon
and California Bailroad Company, for the suspension of action under
the decision of February 17, 1892 {supra), the local officers were directed
by your office to withhold the lands within the primary lim ts from
entry, and such lands as had been selected within the indemnity limits;
whi(^h action was approved by this Department.
The Eastern Oregon Land Company, successor to The Dalles Military
Wagon Road Company through purchase, it appears from the petition,
instituted two suits against E. I. Messinger and John D. Wilcox, in the
circuit court of the United States for the district of Oregon, to set aside
patents which had been issued under the land laws to said parties for
lands within the overlapping limits of the grants for the said The
Dalles Wagon Road Company and the Northern Pacific Bailroad Com-
pany; that said court rendered a, pro forma decree dismissing the bills,
bat upon appeal to the circuit court of appeals for the ninth circuit, the
decrees were reversed; said circuit court of appeals holding that the
lands in question belonged to the Eastern Oregon Land Company and
that they had been wrongfully opened to settlement and wrongfully
sold and patented by the United States.
It is stated in the petition that it is the intention of the defendants
to appeal the said suits at once to the supreme court of the United
States.
In view of the action taken ui)on the petition of the Oregon and
California Railroad Company, and of the decision of the court as to
the rights of the petitioners, I have determined to grant their request,
and have to direct that you give proper directions to the local officers
to carry into effect the suspension, and that all action upon entries
heretofore allowed be suspended to await the result of the decision of
the supreme court in the case referred to.
accounts^ aixnistment of deputy sfbvetob's ciuaih.
Jamks H. Mabtineau.
Th« adJuBtment of depnty snrveyors' accounts is made upon the intrinsic evidence
furnished by the field notes of survey, sworn to and returned by the deputy^
and not upon independent supplemental statements.
Secretary Bliss to the Comptroller of the Treasury, April 21, 1897,
(W. V. D.) (W. M. B.)
This Department is in receipt of your office letter of February 20,
1897, wherein you state that there is pending in your office an '< appeal
from the settlement by the Auditor for the Interior Department of the
334 DECISIONS RELATING TO THE PUBLIC LAKDS.
Bupplcmental account of James H. Martiucau, 17. S. deputy sarveyor
for Arizoua auder contract No. 30, dated June 21, 1893."
The question involved, as appears from your said office letter, is
whether or not should be paid to Martineau the sum of 971.72 claimed
by him as compensation for the resurvey of the exterior township line
in T. 4 N., B. 1 E., and for the partial survey and resurvey of the
exterior township line in T. 3 N., B. 3 E., Territory of Arizona.
In your above referred to letter you say :
Ah the lines originally rejected were not shown in the deputy's field notes, their
sal)S(Minent acceptance must have been based on independent supplemental evidence.
The action of the Commissioner seems therefore to have been in conflict with the
decision of your office in the account of Pearson (22 L. D., 471). I am aware that
this decision was subsequently reviewed and somewhat modified, but do not under-
stand that the point now under consideration was overruled; nor have I been
pointed to any subsequent decision of your office overruling that in the Pearson
case . . . . , before acting upon Mr. Martineau*s appeal I have deemed it proper to
brinj; the case to your attention, thinkinpf that the action of the General Land Office
in allowing Mr. Marti neau's supplemental account may have been inadvertently
taken, and, if not, to request that the information upon the lines originally rejected
were subsequently allowed be given me, and also to be informed whether the policy
of your Department in the matter now under consideration has been changed since
the Pearson case was decided.
The items for which the stated compensation is claimed, are as fol-
lows: resurvey of 6 mis. .02 chs. 16 Iks. of township exterior line in
T. 4 K., B. 1 E., and survey and resurvey of 3 mis. 41 chs. 52 Iks. of
township exterior line in T. 3 N., B. 3 E.
It appears from reports contained in letters of the chief of division
of public surveys and the Acting Commissioner of the General Laud
Office, dated May 9, 1896, and March 9, 1897, respectively, herewith
transmitted, that the acceptance by the General Land Office of the
above described lines, and allowance of compensation claimed there-
for, as stated in referred to supplemental account for surveys made in
pursuance of supplemental special instructions issued under contract
No. 30, were not based upon independent and supplemental evidence,
but were, as a matter of fact, based upon the intrinsic evidence far-
uished by the field notes now on file in the General Land Office. How
it happened that the designated lines were not originally accepted by
the General Land Office, and payment allowed therefor, is folly
explained in letters and reports above referred to, it appearing that
the failure to take such action was caused by a misunderstanding
between the division of public surveys and the division of accounts of
the General Land Office. Upon the showing made it appears that
deputy Martineau is entitled, under the rule laid down in depart-
mental decision of April 24, 1890, in the case of ex parte George W,
Pearson (22 L. D., 471), to the compensation claimed.
Beferring to said departmental decision of April 24, 1896, and reply-
ing to your inquiry as to whether this Department has changed its
policy and ruling, as enunciated in said decision, with regard to the
DECISIONS KELATING TO THE PUlil-IC LANDS. 335
adjuistinent of deputy surveyors' accounts upou the intrinsic evidence
furnislied by tbe field notes sworn to and returned by such deputies,
[ind not upon independent supplemental statements — forming no part
of the field notes — where the original field notes are defective and fail
to conform to special instructions, which said instructions^ by the act of
October 1, 1890 (26 Stat., 650), are niade and accepted as a part of every
surveying contract, I will stiite that the ruling in said departmental
decision of April 24, 1896, in the cit^d case has not been revoked, but
is still adhered to.
The particular point or question to w^hich you invite attention and
which was considered somewhat at length and passed upon in said
departmental decision of April 24, 1896, was not discussed or si)ecifi-
cally ruled upon in the reviewing decision of October 3, 1896, hence
the decision of the former date upon said question or point can not be
considered as having been overruled by that of the latter date.
Penwell v. Ohbistian.
Motion for review of departmental decision of July 1, 1896, 23 L. D.,
10, and for rehearing, denied by Secretary Bliss, April 21, 1897.
ABAXIK>XED MILlTAllY RESERVATION-ENTRY- APPRAISAJL-FINAX
PROOF.
George H. Doe.
Final proof can not be BDbmitted on a liomestead entry made under the act of Augnst
23» 1894, of lands within an abandoned military reHervation, prior to the appraisal
of the reservation.
I
Secretary Bliss to the Commissioner of the General Land Office, April
(W. V. D.) ^i, 1897. (E. B., Jr.)
This is an appeal by George H. Doe from your office decision of
Koveinber 23, 1895, affirming the rejection by the local officers of his
application, filed June 6, 1895, to be allowed to offer final proof m the
matter ot his homestead entry No. 2404, made June 6, 1895, under the
act of August 23, 1894 (28 Stat, 491), alleging settlement March 1, 1876,
for the N. i of the ITW. J and the N. i of the NE. J of Sec. 31, T. 13 S.,
K. 15 E., in the abandoned Fort Lowell military reservation, Tucson,
Arizona, land district. The ground of rejection of said application by
the local office was that the lands in said reservation had not been
appraised.
It is admitted by appellant that the lands in said reservation had
not been appraised when he asked to be allowed to ofier final proof,
and the only question is, whether he should be allowed to offer such
proof prior to an appraisement.
336 DECISIONS RELATING TO THE PUBLIC LANDS.
Under tbe said act, persons making homestead entry of such lands
as are covered thereby are required to pay —
not lew tlian the valae heretofore or hereafter determined by appraisement, nor \e^
than the price of the land at the time of the entry, and snch payment may, at tbe
option of the pnrchaser, be made in five eqnal installments, at times and at rat«8 of
interest to be fixed by the Secretary of the Interior. (Act of Angnst 23, 1894, supra.)
In parsnance of this provision of the act, Mr. Secretary Smith
directed, Febraary 18, 1895, that, in disiK>sing of the lands in the
abandoned Fort Bridger military reservation —
the homesteader be given the option in making payment npon his entry of these
lauds, of making his payments in five eqnal annual payments to date from the time
of the acceptance of his final proof tendered on his entry, and that the rate of inter-
est npon deferred payments be charged at the rate of 4 per cent per annum (20
L. D., 118).
Under these instructions the first payment becomes due one year
after acceptance of final proof. As both said reservations are subject
to disposal under said act, your office very properly, in the absence of
any other specific regulation for the disposal of the former reservation
lands, applied to them the rule of February 18, 1895 (supra). As they
had not been appraised when Doe applied to be allowed to submit
final proof, his application w»s properly denied. The action of your
office in the premises is accordingly affirmed.
On July 29, 1890, your office submitted the report of the appraise-
ment under the act of July 6, 1884 (23 Stat., 103), of the lands in tbe
Fort Lowell reservation, and also of the government buildings on the
reservation. Tlie appraisement of these lands, embracing an estimated
area of 51,G31.3G acres, ranging in value from ten cents to fifteen dollars
per acre, was, on August 18, 1896, approved by the Department in the
following language:
The appraisal of the lands to be disposed of, so far as it relates to the tracts
valuf d at and above the minimum price, is accepted, and the price of the tracts
valued below the minimum price is fixed at $1.25 per acre.
At the same time, instructions to the local officers at Tucson for the
disposal of these lands, submitted by your office, following the instruc-
tions of the Department dated April 9, 1895 (20 L. D., 303), for tbe
disposal of the lands in the Fort Bice and Fort Bridger abandoned
military reservations, were approved.
It thus appears that the objection to the submission of final proof by
Mr. Doe, upon his homestead entry, which was the occasion of his
appeal, no longer exists. He may therefore proceed to offer final proof,
subject, of course, to any valid objections theretx) that may exist.
DECISIONS RELATING TO THE PUBLIC LANDS. 337
HOMESTSAB ENTRY- ALIENATION.
SWAZS V. SUPBENANT.
The execntion of a deed to a half iDterest in the land covered by a homoBtead entr\v
prior to the sabmission of final proof, defeats the right to patent, though it niay
appear that the entry man had lived on the land for five years prior to alienation^
and that the grantee under the deed la asserting no claim thereunder.
Secretary Bliss to the Commissioner of the General Lcmd Office^ April
(W. V. D.) 21, 1897. (C. J. W.)
April 37, 1887, Alexander Snprenant luade homestead entry, No.
3428, for E. J of NE. J of Sec. 21 and W. J of NW. 4 of Sec. 22, T. 3 N.,
R. 7 W., Helena, Montana, alleging settlement in 1884.
The entry was canceled as to the E. J of NE. J of Sec. 21, T. 2 N.,
R. 7 W., by your office letter "G" of January 15, 1890, for conflict with
pre emption cash entry, No. 3391, by Frederick L. St. Onge. By your
oflBce letter "0", of date July 20, 1894, Suprenant's entry, then com-
prising the W. ^ of NW. 4 of Sec. 22, T. 2 N., R. 7 W., was canceled
because of failure to submit final proof within the statutory period, but
said entry was reinstated by office letter "O^' of September 21, 1894,
and the entryman given sixty days within which to submit his final
proof.
On October 26, 1894, he gave proper notice of his intention to make
final proof on the 8th of December following, before the clerk of the
district court of Silver Bow county, Montana, in which said land is
situated.
On the day indicated he appeared with his counsel and witnesses,
and submitted his final proof.
It does not appear that any affidavit of contest was filed, but Joseph
Swaze appeared before the officer, with his attorney and witnesses, and
after the final proof blanks were filled, both parties submitted addi-
tional evidence. From this evidence it appeared, inter alia^ that, the
entryman had joined with Swaze, the protestant, and others, on Octo-
ber 8, 1890, in a location of the Jersey Blue placer claim, which includes
the lancl covered by the homestead entry. It further shows that on
May 15, 1889, Snprenant executed a mortgage to John E. Loyd upon
the XW. J of Sec. 22, T. 2 N., R. 7 W., to secure the payment of a
promissory note, and further that on March 11,1889, he executed a
deed in the nature of a quitclaim to one Jean Baptiste Guay for a half
interest in and to a ranch containing one hundred and sixty acres,
known as the sheep ranch situated at the fork of Blacktail creek with
Little Blacktail creek, including the land covered by the entry.
On March 17, 1895, the local officers rendered a joint decision recom-
mending the acceptance of the final proof, and that the protest be
dismissed.
From this decision Swaze appealed to your office.
10671— VOL 24 22
338 DECISIONS RELATING TO THE PUBLIC LANDS.
On February 7, 189(>, yonr office considered the case and lield the
liomestead entry for cancellation on the groand that the entrymau hivd,
before making final proof, parted with a half interest in the land cov-
ered by it, by deed of alienation.
From this decision Saprenant has appealed to the Department
It is somewhat difficult to determine from the record how Swaze
•obtained standing as a party to the case, but it appears from a stipu-
lation signed by the attorneys, representing the parties, that Swaze
was claiming the land as a mineral locator and was thereby entitled to
be heard. As his right to offer testimony was not questioned, but is
conceded by the stipulation, he will be treated as having the standing
of a protestant against the final proof. The hearing involved three
questions:
First, the character of the land, whether agricultural or mineral.
Second, the prima facie sufficiency of the final proof offered by tbe
entrymau. Third, the good faith of the en try man.
It was x>roperly found both by the local officers and your office, that
the land was agricultural and not mineral. It is not seriously disputed
that the formal final proof offered shows prima facie a compliance with
the requirements of the law upon the part of the entrymau. If tiie
final proof is to be rejected it must be on the ground of the bad faith
of the entrymau. This, it is alleged, must be imputed to him on
account of two transactions which it is charged are incompatible with
^ood faith. These transactions are the execution of a mortgage on the
land covered by his homestead and the execution of a deed to a half-
interest in it, before offering his final proof. The transaction in refer-
ence to the mortgage seems to have been regarded by your office as
insufficient to show bad faith, in the light of the explanations given by
him in his testimony and by the mortgagee in his testimony. It is not
deemed necessary to consider the grounds of the conclusion reached iu
reference to this matter, or to consider it separately from the other
acts of the entrymau impeaching his good faith. The record affords
abundant evidence that the entryman is uneducated and easily misled,
and that he understands but imperfectly the transactions about which
he testifier
In passing upon any question as to his good faith, his ignorance of
the law ; his surroundings and liability to be imposed upon, may be con-
sidered, but he must be credited with capacity to understand the plain
<luties required by law of all homestead entrymen, or he would be
deemed incapable of making a valid entry. He must be presumed to
have known that it was unlawful to sell and convey an interest in the
land covered by his homestead entry before he had earned the title by
compliance with the homestead laws. It is true that he dispute.^ the
correctness of the deed and insists that it was to be for an interest only
in tlie improvements. The terms of the deed (a copy of which is
iippended to the record) are so plain and explicit that the theory of the
DECISIONS RELATING TO THE PUBLIC LANDS. 339
defendant cau get no support from the construction of tbe iustruineut^
It purports to be an absolute deed to a half interest in tbe land it
describes as well as in the improvements and appurtenances. No wit-
ness is called to impeach its correctness, except the defendant himself,
and his statements are too vague and uncertain to authorize the deed
to be disregarded. It is insisted in the argument filed that the entry-
man had in fact earned his title before the deed to Quay was executed,
by five years of residence upon the land x>rior thereto. If this was con-
ceded he would still not be authorized to sell and convey his homestead
before offering final proof. It is insisted that Guay has abandoned any
claim he may have had by virtue of the deed, and has left the entryman
in sole jiossession, but this does not mend the broken law.
I see no escape from the conclusion that the entry has been forfeited,
and your office decision is accordingly affirmed.
PRACTICE— NOTICE OF APPEAL— RAILROAD GRANT— AIXTCTSTMENT.
Staples bt al. v. St. Paul and Northern Pacific R. R. Go.
Notice of an appeal served npon tbe land commissioner and agent of a railroad com-
pany is a proper and legal service on such company.
The grants to the St. Panl and Northern Pacific E. R. Co., and the Northern Pacific
R. R. Co., were made by different acts of Congress, and are entirely separate
and distinct, and the lease of its road and franchises by the former company to
the latter, will not justify the Department in holding that rights granted to
the company first named can only be exercised by its lessee.
Secretary BlUs to the Commissioner of the General Land Office, April
(W. V. D.) 2J2, 1897. (E. M. R.)
This case involves certain lands lying in sections 19 and 21, T. 132 IS,,
E. 31 W., St. Cload land district, Minnesota.
The record shows that by letters dated March 21, and 22, 1894, the
local officers transmitted to your office the appeals of Staples et aL,
from their action of January 9, and 25, 1894, rejecting the application
of Willis L. Staples to enter, under the homestead law, the !^. i of the
NE. i and lots 1 and 2, Sec. 19, T. 132 N., R. 31 W.; the NE. J of Sec.
21, T. 132 K, R. 31 W., by Elizabeth Bowman; and the S. i of the
NE, J and the NE. J of the SE. i and lot 0, Sec. 19, T. 132 K, R. 31 W.,
by Gust Johnson.
On October 5, 1894, your office decision was rendered in favor of
these applicants, together with Julia A. Warriner and Gust Bydberg.
These lands are within the twenty mile primary limits of the grant to
aid in the construction of the Northern Pacific Railroad under the act
of July 2, 1864 (13 Stat., 365), as shown by its map of definite location
filed November 21, 1871, but were not included within the limits of the
grant as shown by the maps of general route, which took effect on
August 13, and October 12, 1870. They are likewise wittiin the fifteen
340 DECISIONS RELATING TO THE PUBLIC LANDS.
miles indemnity limits of the grant to aid in tbe constmction of the
Brainerd Branch of the St. Paul and Pacific, now the St. Paul aud
Northern Pacific Bailroad Company, under the act of March 3, 1837
(11 Stat., 195), as shown by the map of definite location filed March 28,
1858.
The latter company selected this land as indemnity on December 31,
1877, by its list No. 2.
Tour office decision of October 5, 18d4 (supra)j held that these lauds
were excepted from the grant to the Northern Pacific Bailroad (3oid*
pany at the date of the definite location on November !^1, 1871, by
reason of the withdrawal then existing in behalf of the St. Paul and
Pacific Bailroad Company, and held that the selection by that company
of December 31, 1877, was superseded by the selection of December 4,
1889.
The selection of 1877 did not contain a specification of losses as a
basis for the selection, because there was no requirement for the specifica-
tion of losses until the circular of November 7, 1879. (Clancy et ah r .
Hastings and Dakota Bailway Company, 17 L. D., 592.)
The supplemental list of December 4, 1889, contained a specification
of losses, but as it contained less lands than the list of 1877 (due to
the fact that certain of the selections of 1877 had in the meantime
been canceled), your said office decision held that this variance amounted
to an abandonment of the selection of 1877 : further, that the selection
of 1889 was not effective to reserve the lands, in view of the revocation
of the withdrawal of May 22, 1891, because it did not comply with
existing regulation in stating the losses tract for tract with the selected
land, and accordingly reversed the action of the local officers and
directed that the application of the parties be allowed.
On January 31, 1895, a motion for review having been filed by tbe
St. Paul and Northern Pacific Bailroad Company, your office decision
was rendered, in which was reversed, in part, the decision of October
5, 1894; it being found that your office had inadvertently overlooked
the fact that the company had, on February 12, 1892, perfected its
selection by the filing of a re-arranged list containing a prox>er desig-
nation of losses arranged tract for tract as required by the regulations
of this Department, and accordingly overruled so much of said former
decision as rejects said list, and in consequence thereof rejected tbe
homestead applications of these appellants, but declared final so much
of said former decision as held that these lands were excepted from tlie
grant to the Northern Pacific Bailroad Company, no motion for review
or appeal as to said portion of said decision having been made, and
held that said holding had become final.
Subsequently, to wit, on November 4, 1895, a motion for review of
said last above named decision having been made, by attorney for the
homestead applicants, your office decision adhered to its decision upon
review.
DECISIONS RELATING TO THE PUBLIC LANDS. 341
The contention in said last motion for reconsideration of your action,
was upon the ground tbat the St. Paul and Northern Pacific Eailroad
Company had been to all intents and purposes merged into and become
a part of the Northern Pacific Bailroad Company, under a lease exe-
cuted by the first named company to the Northern Pacific on or about
June 1, 1883, of its line and franchises, for a term of 999 years; that
said lease was to all intents and purposes a complete sale of the said
St. Paul and Northern Pacific Company to the said Northern Pacific
Company; that the St. Paul and Northern Pacific Company had aban-
doned any attempt or pretence at separate organization of its land
grant, and the same was now attended, to, and a part of, the grant to
the Northern Pacific Bailroad Company; and that the Northern Pacific
Company claims to control the grant to the St. Paul and Northern
Pacific Company, but as in this case the rights of the Northern Pacific
Company having been passed upon adverse to said company, and it
not setting up any claim to this land under the grant to the Northern
Pacific Bailroad Company, the lands now involved are free from any
claim by either company.
There is contained in the record a motion to dismiss the appeal of the
appellants herein, on the ground that it was not served upon F. M.
Dudley, the attorney of record in this case for the St. Paul and Pacific
Bailroad Company, but was served upon one W. H. Phipps of St. Paul,
Minnesota.
It appears that the party served is the Land Commissioner and Land
Agent of the Northern Pacific Bailroad Company and the St. Paul and
Northern Pacific Bailroad Company.
In the case of Northern Pacific Bailroad Company v. Walters et al,
(23 L. D., 331), it was held, inter alia (syllabus): "Notice of an appeal
served upon a duly recognized agent of a railroad company is a proper
and sufficient service." See also the case of Boyle v. Northern Pacific
Bailroad Company (22 L. D., 184), wherein it was held (syllabus):
'^ Notice of an appeal duly served on a general land agent of a railroad
eompany is sufficient service on said company."
The ix)sition of counsel is therefore not well taken, and the appeal is
properly before the Department.
The ground of review of your decision of January 31, 1895, urged by
counsel for the homestead claimants, appears to be unsound. The
grants to the two roads were made as separate grants, under different
acts of Congress, having individual and distinct limits, and the fact
that one of these companies leased its road and franchises to the other
does not appear to be sufficient to hold that rights granted by the act
to aid in the construction of the St. Paul and Northern Pacific Bailroad
can only be exercised by the Northern Pacific Bailroad Company.
After au examination of the case, I concur with your office that this
land is not subject to homestead entry, and the decision appealed from
18 accordingly affirmed.
342 DECISIONS RELiLTINQ TO THE PUBLIC LANDS.
HOMX8T£AI> ENTRY-SETTLEMENT RIGHT— CANCELLATION.
GouBLEY V. Countryman (On Review).
The canoellation of a homeetead entry as to part of the land eoTered thereby, on
aocoant of an adverse claim, will not prevent the entryman from sobseqnently
asserting his right as a settler to the entire tract covered by his original entry,
as against a third party.
Secretary Blis$ to the Commissioner of the Oeneral Land Office^ April
(W. V. D.) 22, 1897. (C. W. P.)
On March 3, 1897, your office transmitted, on the part of George W.
Countryman, a motion for review of the decision of the Department,
rendered on January 18, 1807, in the case of William Gourley against
the said Countryman (24 L. D., 49).
The land involved is the N. ^ of the NE. i of Sec. 28, T. 11 K, B. 3
W., Oklahoma land district, Oklahoma Territory.
With the exception of the second and fifth grounds, the errors
assigned relate entirely to matters of law and fact which were fully
considered by the Department when the case was decided. No new
question of law or fact is presented for consideration by them. And
no reason is shown for a departure from the rule that in such cases
motions for review must be denied. (Shields v. McDonald, 18 L. D., 478.)
The second and fifth grounds are : 2. In not holding that Gourley had
exhausted his homestead rights by his entry for the S. ^ of theNE. \ of
Sec. 28, etc. ; 5. In nbt holding that Gourley being a resident on the S. ^
of the NE. }, and his homestead entry being embraced in that tract only,
his settlement was only co-extensive with the boundaries of the laud
embraced in his entry, and gave him no right to the land.
It is the general rule in the administration of the homestead laws,
that if a i)arty of his own volition enters a less quantity of land than
he is entitled to, his election to take such less quantity is to be consid-
ered as a waiver of his claim for a larger quantity (General Circular,
October 30, 1896, p. 33). And the question in this case is, whether or
not Gourley has elected to take only eighty acres and thus waived liis
claim to a larger quantity, within the meaning of the above rule. I
think he has not. When he made his original entry he intended to take
the maximum to which he was entitled. The cancellation of that entry
as to the eighty acres cannot under the circumstances of this case be
considered as a waiver on his part of his right, under the homestead
laws, to the full quantity of one hundred and sixty acres, or as an
exhaustion of his homestead right.
The fifth ground is not tenable for the reason that Gourley's original
homestead entry covered the entire one hundred and sixty acres— a
technical quarter section.
The motion, not showing proper grounds for review, is denied.
DECISIONS RELATING TO THE PUBLIC LANDS. 343
HOMXSTEAO-BESIDBNCS-SECTIOX 5, ACT OF MARCH 8, 1891.
Glabk V. Mansfield.
Ad applicant for the right of homeetead entry who has continuoasly resided on the
land embraced within his application for a period of five yeais, and applied to>
enter during said period, is not thereafter required to maintain residence as a
prerequisite to patent.
The prohibitory provision in section 2289 R. S., as amended by section 5, act of
March 3, 1891, that ''no person who is the proprietor of more than one hundred
and sixty acres of land in any State or Territory shall acquire any right under
the homestead law," is no bar to the allowance of an entry based upon an appli-
cation made prior to the passage of said amendatory act, and strictly in com-
pliance with the laws and regulations then in force.
Xo settlement right is acquired by trespass upon the lawful possession of another.
Secretary Bliss to the Commissioner of the General Land Office^ April
(W. V. D.) 22^ 1897. (J. L.)
This case iuvolves the SE. J of section 21, T. 16 N., R. 44 E., Wall»
Walla land district, Washington, containing one hundred and sixty
acres of land. This tract lies outside of the withdrawal on the original
map of general route of the Northern Pacific Eailroad Company, filed
August 13, 1870; within the limits of the unauthorized withdrawal on
the amended map of general route filed February 21, 1872; and within
the indemnity limits on the map of definite location filed October 4^
1880. it was selected by the company on March 20, 1884.
On February 24, 1883, William 8. Hurlbert presented his application
to make homestead entry of said tract, alleging settlement x>rior to-
October 1, 1880, and continuous residence. The local officers rejected
it, on the ground that the tract was within the withdrawal which took
efiiect on February 21, 1872, for the benefit of the Northern Pacific
Railroad Company. Hurlbert appealed. Your office reversed the
action of the local officers, and held the company's selection of said
tract for cancellation with a view to allowing Hurlbert's application to*
make entry. The railroad company appealed to the Department. On
February 21, 1894, first, and afterwards on October 14, 1895, this.
Department affirmed the decisions of your office; and on February 8,
1806, the company's selection of said tract (made March 20, 1884) was-
canceled, and Hurlbert was awarded the right to make homestead
entry of said land, and the case was closed.
Pending said proceedings to wit: on August 15, 1887, Secretary
Lamar directed
that all lands withdrawn and held for indemnity purposes under the grant to tb&
Northern Pacific Railroad Company be restored to the public domain and opened to
settlement under the general land laws, except such lands as may be covered by
cpprtnfed selections.
He further directed that:
As to all lands covered hy unapproved Mflections applicatioDS to make filings and
entries thereon may be received, noted and held subject to the claim of the cum*
344 DECISIONS BELATING TO THE PUBLIC LANDS.
pany, of which the claimant must be distinctly informed and memoranda thereof
entered npon hie papers. Whenever snch application to file or enter is presented
alleging npon prima /aou; showing that the land is, from any cause, not subject to
the company's right of selection, notice thereof will be given to the proper repre-
sentative of the company, which will be allowed thirty days after service, within
which to present objections to the allowance of such filing or entry.
Then followed farther directions by the Secretary as to the mode of
procedure in the case (see 0 L. D., 91-92-93).
After the promolgatiou of said order, to wit on October 27, 1887,
Girard Clark filed his application to make homestead entry of said
tract, alleging settlement on March 1, 1884, and continuous residence
and cultivation thereafter; and that the tract was not subject to selec-
tion by the Korthern Pacific Railroad Company because one Wilham
Hurlbert, a duly qualified homestead entryman, in the year 1878, (long
before the company made its selection), settled upon said tract and
continuously resided upon and cultivated the land until the day of
Clark's settlement thereon. Said application was filed, noted and held
in the local office subject to the claim of the railroad company. Notice
thereof was served upon the company. And on December 6, 1887, the
company filed its protest against said application, on one of its printed
forms, alleging that its map of definite location was filed on October 4,
1880, and that it had selected said tract as indemnity on March 20,
1884. The local officers did not then order a hearing, doubtless because
of the case of Hurlbert v, the company then pending on appeal as
above stated.
In tbe meantime, on March 8, 1894, George T. Mansfield filed his
application to make homestead entry of said tract, alleging settlement
on March 4, 1894, and subsequent residence. The railroad company
was notified of this application also, and on April 15, 1894, filed its
usual protest against the same.
On April 23, 1894, after the first decision of the Department in the
Hurlbert case had been promulgated, the local officers ordered a hear-
ing of the case of Girard Clark v. The l^orthern Pacific Railroad Com-
pany, upon the protest filed on December 6, 1887; and directed that
the testimony be taken before William A. Inman, a notary public
residing at Colfax, Washington. On May 11, 1894, George T. Mansfield
flled his application to be allowed to intervene in said hearing, aud to
set up a superior right in himself to enter said tract of land. His
application was allowed by the local officers.
On May 28, 1894, all three of the parties appeared before the notary
at Colfax, Clark and Mansfield in person with their attorneys, and the
railroad comx)any by its attorney. The taking of testimony was com-
menced on May 28, aud concluded on May 31, 1894. All parties were
inlly heard.
On July 27, 1894, the local officers found the facts as follows :
Ist. That the first settlement was made on this land in December 1877 by one
Debolt who shortly thei-eafter abandoned it.
DECISIONS RELATING TO THE PUBLIC LANDS. 345
. 2nd. That in the spring of 1878, William Hnrlbert made settlement on the land,
which he followed with actual residence and coltivation and improvement of the
same nntil February 1884, at which time he sold his improvements on the land to
Girard Clark, one of the parties hereto.
3rd. That said Hnrlbert claimed the land under the homestead law and was qnali-
fied to make entry of the land thereunder.
4th. That in the month of February 1884, Girard established actual residence on
the land, which he maintained until about the 25th day of March 1889, during which
time he fenced and broke the entire tract with the exception of about twenty acres
fenced and broke by Hnrlbert, his grantior. Clark also nia<^le other valuable improve-
ments on the land during this time in the way of buildings.
5th. That about March 25, 1889, Clark moved from this land and established his
residence on another farm some miles distant from the land in contest, where he
continued to reside up to March 6, 1894.
6th. That Clark has never abandoned said land or relinquished his right thereto;
but has at all times held possession thereof; and has farmed, cultivated and cropped
the same continuously up to the date of this hearing.
7th. That on March 4, 1894, the land was in the quiet and peaceable possession of
Clark. That it was' enclosed and had a growing crop of wheat to the amoant of one
hundred and forty acres sown by Clark the fall before.
8th. That at the time Mansfield entered upon the land he had actual notice of
Clark's right thereto.
And thereupon the local officers recommended, that the selection of
this tract by the railroad company be canceled; that the application
of Mansfield be rejected; and that Clark be allowed to make his home-
stead entry.
The railroad company and Mansfield both appealed to your office.
On July 15, 1896, your office reversed the decision of the local officers
solely upon the ground that Clark is now the proprietor of more than
one hundred and sixty acres of land in the Stateof Washington, and is
therefore disqualified from making a homestead entry. After making
a recapitulation of the facts proved, substantially agreeing with the
findings of the local officers, your office' in its decision proceeded as
follows :
It is clearly shown by the testimony submitted at the hearing in this case, that
Girard Clark is the proprietor of more than one hundred and sixty acres of land in
the State of Washington, which, under section 2289 of the U. S. Re^ed Statutes, as
amended by the fifth section of the act of March 3, 1891 (26 Statutes 1095), disquali-
fies him from making a homestead entry.
Therefore, your decision is reyersed, and the homestead appUcation of Girard
Clark is hereby held for rejection.
Your office further decided that it was not —
Necessary to take any further action upon said selection (by the Korthem Pacific
Bailroad Company) to the extent of the tract involved in this case, as such selection
as regards the land in qnestiou, was canceled by letter ^'F'* of February 8, 1896, as
the result of the case of said company against William 8. Hnrlbert, and which
neultis fully set forth in this decision ; the railroad claim to this land has been
eliiiiioated.
Yun will advise Girard Clark of this decision, and allow him the usual time,
sixty days after notice, within which to appeal to the Honbrable Secretary of the
Interior.
346 DECISIONS RELATING TO THE PUBLIC LANDS.
Sboald tins decision become final George T. Mansfield will be permitted to make
bomestead entry for tbis land. Ton will advise bim of tbis action.
From said decision Clark lias appealed to this Department. Tbe
railroad company has not appealed. The case is now a controversy
between Girard Clark and George T. Mansfield, alone.
The evidence shows the following facts:
Clark bought Harlbert's improvements on February 4, 1884, for $300
in cash, and settled on the tract the same day. Before the 10th day of
«
February he had completed the removal of his wife and children and
household goods and established his residence on the tract. He resided
there continuously and exclusively until the 25th day of March 1889,
a period of five years and forty-three days; during which time he got
the whole quarter section under cultivation and securely fenced; and
built new structures, made his improvements worth $1,000, and raised
crops worth from $2,000 to $3,000 per annum : About the middle of
February 1889, he bought from a Mr. Ladd a farm containing 268 acres,
five miles distant from his home by the road. After that date he culti-
vated and improved both farms, spending part of his time with his
family on each tract. In the spring during the plowing and seeding, in
the summer during the harvesting, and in the fall of the year during
the plowing and seeding again, he remained with his family at his home
place and boarded his hired men. Afler work was done he went with his
family to the Ladd farm, and worked there; and generally remained
there during the winter. He continued to live in this manner — alter-
nating between the two places — until March 6, 1894, when he went
with his family to his homestead, and remained there continuously and
exclusively until the time of the hearing. During the five years between
1889 and 1894 he continued to cultivate and improve the home place,
kept up his fences, and made (yrops worth from $2,000 to $3,000, every
year, except one, when he fallowed the whole tract to let the land rest.
Mansfield claims, (1) that Clark's manner of life during the five years
aforesaid was equivalent to a change of residence, to an abandonment
of his homestead claim, and to a restoration of the tract to the public
domain as unoccupied land subject to entry by any qualified person;
and (2) that by his (Mansfield's) settlement on March 4, 1894, and his
residence thereon for four days, until the date of filing his application,
he acquired a better right than Clark^s.
Wbile it is true tbat residence under tbe bomestead law mast be continuonb and
personal, it is also tme tbat residence once establisbed can be cbanged only wbeo
tbe act and intention of tbe settler nnite to eifect siicb a cbange. (Secretary Laiiiar
in Anderson r. Anderson, 5 L. D., 6, and in Penrose's case, 5 L. D., 179. See also
Patrick Manning's case, 7 L. D., U4-<5, and Alfred M. 8mitb's case, 9 L. D., 146-148.)
The whole evidence by a clear preponderance proves that Clark did
not intend to change his residence; that he did not intend to abandon
his homestead on which he had resided for more than five years, and
which he had rendered very valuable by improvements and cultivation.
DECISIONS RELATING TO THE PUBLIC LANDS, 347
Moreover, after Clark liad resided ax>on bis homestead for more tlian
five years, he was not required to reside there any longer. lu the case
of Lawrence f. Phillips, G L. D., 140-143, this Department after quot-
ing section 2297 of the Eevised Statutes said :
It seems clear from this seotion that residence upon the homestead is not required
after the expiration of the five years, as a prerequisite of obtaining patent to the
land ; nor does a change of residence after that period forfeit a right already acq iiired.
The railroad company's selection being canceled, it is evident, in
view of the law above quoted and the third section of the act of May
14, 1880 (21 Statutes 140), and the facts shown by the evidence, that
Girard Clark is now entitled to make homestead entry of the tract of
land in contest, and to offer final proof immediately, unless he be dis-
qualified as indicated in your office decision.
By the 5th section of the act of March 3, 1891 (26 Statutes 1095),
Congress after re-enacting the first five lines of section 2289 of the
Kevised Statutes enacted a new law in the following words :
Bat no person who is the proprietor of more than one hundred and sixty acres of
land in any State or Territory shaU acquire any right under the homestead law.
When Clark on October 27, 1887, filed his application to make home-
stead entry, in strict compliance with the laws and regulations then in
force, he acquired homestead rights in the tract of land described,
wliicb were good against all the world, and were unquestioned except
by the Northern Pacific Railroad Company which then had pending an
application to make indemnity selection of said tract. Said selection
was unlawful and invalid for three reasons. (1) Because of William S.
Hnrlbert's settlement on the tract in the year 1878, prior to the filing
of tlie map of definite location, and his continuous residence thereon :
(2) Because said selection was made by tbe company while Hnrlbert's
appeal involving the company's right to that very tract of land was
pending before the Department: And (3) Because on March 20, 1884,
when said selection was made, Clark was and for forty-four days had
been a bona fide settler and resident on the trai^t. According to law
and the facts of the cnse, Clark was then and there, to wit: on October
27, 1887, entitled to have his application allowed and to make his
homestead entry. But action upon his application was suspended by
Secretary Lamar's order above quoted, until the company's claim
should be disposed of by this Department. This was not done until
February 21, 1894, more than six years after the date of Clark's appli-
cation to make entry. Then Clark promptly secured a hearing, and a
judgment of the local officers in his favor. Clark is not responsible for
the delay. He has been guilty of no laches. He has diligently prose-
cuted and insisted upon his rights, which must be determined and
measured by the laws as they were on October 27, 1887, when he did
all that he could do, or be required to do, to perfect the homestead
eutry, which he had initiated on February 4, 1884 by settlement and
348 DECISIONS RELATINO TO THE PUBLIC LANDS.
continuous subsequent residence. The act of March 3, 1S91, abore
quoted i.s not applicable iu this case. Clark is now entitled to a
decision recognizing and establishing his rights as they were at the
time of the filing of his application to make entry. (Ard r. Brandon
156 U. 8. 537-543, Pfaff v. Williams, 4 L. D. 455-457, Williams r. Clark,
12 L. D. 173-175, Patrick Kelly 11 L. D. 326-328, Goodale v. Olney 12
L. D. 324-325, Rice v. Lenzshek 13 L. I). 154, E. S. Newman 8 L. D.
448-450 and ISIcDonald v. Jararailla 10 L. D. 276-278.)
For the foregoing reasons this Department decides, that your oflSce
erred in holding that Clark was disqualified from perfecting and mak-
ing his homestead entry iu tbis case, by reason of the fact that at tbe
time of the hearing he was, and is now, the proprietor of more than
one hundred and sixty acres of land in the State of Washington.
Tbe intervenor, George T. Mansfield, has failed to show by the e\i-
dence a superior right or any right at all to make entry of said tract
According to his own personal testimony his pretended settlement was
made under the following circumstances:
He first saw the land on March 2, 1894 (testimony p. 105), although
he had been living at Colfax witbin six miles of the tract for about
three years, carrying on business as bar-keeper and horse-trader
(p. 115). On Siuiday March 4, 1894, between nine and ten o'clock
A. M., he made his alleged settlement (pp. 105 and 110). It was a
stormy day (p. 114). Snow covered the ground and hid the growing
crop (pp. 107 and 110). With a team and wagon containing bimsell'
and one Charley Shroll, and a stove, a bedstead, bedding and some
food, and a large tent, Mansfield drove across an a^oining field belong-
ing to a Mr. French (p. 112), and drove either over or through Clark's
fence, to reaoh Clark's land. On page 110 of the testimony, Mansfield
relates it thus: ^'I went through the fence. There was no fence visible.
For 25 or 30 yards there was a large snow drift at the place." On tlie
evening of March 4, after he had got his foundation laid and his teut
uj), he went with his team to Riverside to fetch his wife and children.
Returning with them be was refused ]>erniission to pass through the
gate, and was obliged to go around through Mr. Farvin's place, and
crawl through the wires of Clark's fence, to reach his tent. (pp. IU
and 115.)
Mansfield acquired no rights by reason of his unlawful trespass upon
Clark's homestead as shown by the testimony (Atherton v. Fowler,
90 U. S., 513).
Your office decision of July 13, 1896, is hereby reversed. Mansfield's
application to make homestead entry of said tract is hereby rejected,
and Clark's application to make homestead entry of said tract, filed
October 27, 1887, will be allowed, if he be otherwise qualified.
DECISIONS RELATING TO THE PQBLIC LANDS. 349
PBACrriCE-BflNING CLAIM-PROTE9T-APPBAL.
Gladys A. Mining Co. v. Gross.
On appeal from the refueal of the local office to entertain a protest against a mineral
application, the appellant is not required to serve the applicant with notice
thereof.
Secretary Bliss to the Commissioner of the Oeneral Land Office^ April 29 j
(W. V. D.) 1897. (P. J. C.)
It appears that S. E. Gross filed mineral application No. 1696 for the
Milwaukee and other mining claims, in Pueblo, Colorado, land district,
and, alter the period of publication, there was a protest filed by the
Gladys A. Mining Company, which was dismissed by the local officers.
The company filed its appeal, and yoar office dismissed the same, for
the reason that notice thereof was not served on the applicant; and
also held that the charges were insufficient to warrant the ordering of
a hearing.
The protestant appealed, and a motion has been filed to dismiss
the appeal, for the reason that notice thereof was not served on the
applicant.
In view of the fact that the protestant has, since taking its ap|)eal,
filed a formal withdrawal of its protest against this entry, it would
hardly seem necessary to discuss any other feature of this case, but it
may not be amiss to call your attention to the fact that it has been
decided, in the case of Henry C. Evans (23 L. D., 412), that
On appeal from the denial of an application to contest an entry, the appellant Is
not required to serve the en try man with notice thereof.
Hence, the action of your office in dismissing the appeal because
service thereof was not made on the appellee was erroneous.
The decision of yoar office, however, that the charges in the protest
do not stat'e a cause of action, is affirmed.
Notwithstanding there has been filed a withdrawal of the protest, it
is deemed advisable to pass upon the sufficiency of the protest, for the
reason that the Gladys Company, in its withdrawal, seems to rely on
the decision of Gowdy et ah v. Kismet, etc. (22 L. D., 624), concerning
the requirements of publication notice. But since the withdrawal was
filed that decision has been modified (24 L. D., 191). That the protest-
ant may not, therefore, have its case disposed of under a mistaken view
of the requirements in regard to the contents of publication notices,
the matter in controversy is disposed of on its merits.
350 DECISIONS BELATING TO THE PUBLIC LANDS.
PRACnCE-^OTICS BY FUBLICATIOir^MOTION TO DISM198.
Popp V. Doty.
Service of Dotice by publicfttion is defective, if a copy of the notice ia not mailed by
registered letter to the defendant at his poet-offlce of record.
On objection to the service of notice the contest should be dismissed, if the ground
of objection is well taken, and the contestant does not, at such time, apply for
an alias notice.
Secretary Bliss to the Commissioner of the General Land Ofice^ April 29,
(W. V. D.) 1897. (C. W.P.)
This case involves the 8E. i of the S W. i of Sec. 21, and the N. i of
of the SW. 4 of Sec. 28, T. 13, B. 5 £., Oklahoma land district, Okla
homa Territory.
On October 27, 1891, Samnel A. Doty made homestead entry 5o.
2011 of said land.
On October 2, 1893, Fred Popp filed affidavit of contest, charging
abandonment. Notice was issued for a hearing on September 26, 1894,
and on affidavit of Popp, that he was unable to find the defendant^
service of notice was directed to be given by publication. At the hear-
ing the defendant appeared by his attorney specially, and moved that
the contest be dismissed on the ground that no proper notice of contest
had ever been served upon him. Said motion was overruled, and the
contestant called as a witness in his own behalf. The attorney for the
defendant objected to the taking of any testimony and refused to ood-
tinue in attendance.
On February 2, 1895, the local officers decided in favor of contestant,
and, upon appeal, your office, on October 2, 1895, remanded the case
to the local office for further hearing, on the giound that the notice of
contest was defective. Popp appeals to the Department.
The record shows that the name of Doty's post office of record was
changed from "Four Mile" to "Miami," Indian Territory; and that due
publication of the notice was made.
Popp's attorney made affidavit that he presented a letter addressed
to Doty at "Four Mile", Indian Territory, to the postmaster at Okla-
homa City, and requested him to register same, but that the postmaster
returned said letter, for the reason that there was no such post office.
On the other hand, B. A. Davis, registering clerk at Oklahoma City
post office, made affidavit that he never refused said letter, and if such
a letter had been presented he would have accepted and registered tbe
same, or given information as to the proper place to send it.
Popp, in his appeal, excepts to the consideration of the latter affida
vit, on the ground that he was not served with a copy. But it appears
to have been filed in the local office long before the decision was reu
dered by the register and receiver, and the objection applies equally to
the affidavit of Popp's attorney, which does not appear to have been
served on Doty or his attorney.
DECISIONS RELATING TO THE PUBLIC LANDS. 351
Independeutly of these affidavits, it appearing tliat a copy of the
uotice was not mailed to Popp by registered letter at bis post office of
record, as required by Rule 14 of Practice, the motion of tbe defendant
sboiild have been granted and the contest dismissed. In order to gain
jurisdiction of the parties where notice is served by.pnbiicatiou, it is
necessary to follow strictly the requirement of the rule.
Upon the presentation of the motion to dismiss, if Popp had applied
for an alias notice, the same would have been granted; but he elected
to stand upon the safflciency of the uotice, and it being fatally defect-
ive, no jurisdiction thereunder was acquired by the local officers.
Under the circumstances, the contest must fall.
Your office decision is accordingly modified, and the contest dismissed.
XrOMESTBAD COMMUTATION— ACT OF JUNE 8, 1896.
Anders G. Hasselquist.
Ad order directing the cancellation of a prematurely commuted homestead entry
will not defeat action under the confirmatory provisions of the act of June 3,
1896, if such order has not become final.
Secretary Bliss to the Commissioner of the General Land Office^ April 29^
(W.V.D.) 1897. (W.C.P.)
Anders G. Hasselqaist has filed an appeal from your office decision
of December 17, 1895, holding for cancellation his commutation cash
entry for the SE. J of Sec. 26, T. 37 N., E. 8 E., Wausau, Wisconsin land
district.
Hasselqaist made homestead entry for this land on June 20, 1891,
alleging settlement December 20, 1890, and was allowed to commute
said entry to cash entry on August 28, 1891, the final proof showing
residence on the land from December 29, 1890. Your office by decision
of February 21, 1893, held that inasmuch as the original entry was
made after the passage of the act of March 3, 1891 (26 Stat., 1095), the
claimant must show residence and cultivation for a period of fourteen
months to entitle him to commute the same. Upon appeal to this
Department that decision was affirmed August 20, 1895. No motion
for review of that decision having been filed, your office, by letter of
December 17, 1895, held said entry for cancellation, and directed the
local officers to notify the entryman that unless he should furnish sup-
plemental proof as required or appeal from said decision holding his
entry for cancellation within sixty days, it would be canceled without
further notice.
The appeal forwarded is in the following words:
The above named Anders G. Hasselqaist hereby respectfully appeals to the Hon.
Secretary of the Interior from your decision in the above entitled matter* dated
December 17, 1895, holding said entry for cancellation, and assigns as grounds for
appeal that he believes his title to be valid under his commutation entry. Under
352 DECISIONS RELATING TO THE PUBLIC LANDS.
that Ijelief, and after the commutation receipt had been isstied, be sold aaid land in
good faith, and the purchaser thereof has not had his day in court.
The fact that the land was transferred after issuance of final certifi-
cate affords no grounds for reversal of the decision liolding the entry
tor cancellation. A purchaser of land prior to issuance of patent takes
only the interest of his grantor and is charged with notice of the law
and the supervisory control of the Commissioner of the General Land
Office over the action of the local officers. (Bender v. Shimer, 19
L. D., 363.)
While the above in the general rule, and while under that rule the
appeal here presents no sufficient gi*ound for the reversal of the action
of your office, yet the facts presented by the record in this case seem to
bring it within the confirmatory provisions of the act of June 3, 1^^%
(29 Stat, 197), the first section of which reads as follows:
That whenever it shall appear to the Commissioner of the General Land Office tbat
an error has heretofore been made by the officers of any local land office in receir.
ing premature commutation proofs under the homestead laws, and that there was no
fVaud practiced by the entryman in making such proofs, and final payment has been
made and a final certificate of entry has been issued to the entryman, and that tbere
are no adverse claimants to the land described in the certificates of entry whose
rights originated prior to making such final proofs, and that no other reason wliy
the title should not vest in the entryman exists except that the commutation was
made less than fourteen months from the date of the homestead settlement^ and that
there was at least six months' actual residence in good faith by the homestead entry-
man on the land prior to such commutation, such certificates of entry shall be in all
things confirmed to the entryman, his heirs, and legal representatives, as of the date
of such final certificate of entry and a patent issue thereon; and the title so patented
shall inure to the benefit of any grantee or transferee in good faith of such entry-
mau subsequent to the date of such final certificate: ProHded, That this act shall
not apply to commutation and homestead entries on which final certificates have
been issued, and which have heretofore been canceled when the lands made vacant
by such cancellation have been re-entered under the homestead act.
If this entry comes within the purview of said law it was confirmed
notwithstanding the decision of this Department directing its cancella-
tion. The decision of your office, holding said entry for cancellation,
is set aside and the case is returned to your office for further considera-
tion and appropriate action under said confirmatory act.
TIMB£R LAND— SETTL.EMENT CLAIMS.
Buckley v. Mubphy.
The right to take lands chiefly valuable for the timber thereon under the settlement
laws is limited to claims asserted in good faith for the purpose of securing a
home.
Secretary Bliss to the Commissioner of the General Land Office^ April 29^
(W.Y.D.) 1897. (J.L.McC.)
The case above entitled is one of a considerable number of cases iu
which preemption filings were made, or attempted to be n^ade, on the
DECISIONS RELATING TO THE PUBLIC LANDS. 353
morning of the day when lands were opened to entry or filing, in town-
ship 60 N., R. 19 W.; Ts. 67 K', Rs. 18, 19, and 20 W.; Ts. 68 K, Rs.
18, 19, and 20 W.; T. 67 N., R. 21 W., all in the Duluth land district^
Minnesota.
Lands in the eight townships above described were openeil to filing
or entry on eight snccessive days in June, 1893.
On the day when each township was opened to filing or entry, a con-
siderable number of preemption declaratory statements were received
at the Duluth land office, by mail, which delivered the same at about
eight o'clock a. m. The aggregate number of filings thus received
were one hundred and twenty-four. They were at once noted on the
respective plats and tract-books of the township named.
The declaratory statements above referred to were accompanied by
notices of the preemption claimant's intention to make final proof.
When the door of the local office opened, at 9 o'clock a. m. of the
days respectively when the townships above named were oi)ened to-
entry, a line of applicants was found who presented applications to
enter under the timber and stone act certain described lands embrac-
ing a part of those already applied for {supra) by applicants under the
preemption law. The timber land applications were rejected, by the
local officers, because they held that the applications of the pre-emption
claimants to make final proof so far reserved the land covered thereby
as to prevent its being properly entered by others, pending the consid-
eration of said applications. (See case of L. J. Capps, 8 L. D., 406.)
Counsel for certain of the timber land applicants reported the above
facts, in substance, to your office, and asked for information. Corre-
spondence between your office and the local officers ensued, as the
result of which your office sent instructions to the local officers, the
gist of which is contained in the following extract from your office let-
ter of July 19, 1893 :
In my opinion the instructions on page 64, circular of February 6, 1892, clearly
intended that no steps toward making final proof on filings should be taken until
after the expiration of three months from the filing of the township plats of sur-
vey in your office. This rule was doubtless intended to allow adverse claimants an
opportunity to place their claims of record; and this object would be defeated by
permitting publication of notice of Intention to submit final proof, which would
Constitute a segregation of the land, and thns debar the entry or filing of another
within the three months You will therefore vacate any notice of inten-
tion to make final proof which is now being published in opposition to this opinion;
and if no objection exists at the expiration of three mouths from date of filing plat
of survey in yonr office, notice of intention to submit final proof can then be given.
The above instructions were carried into eflfect, and the timber-land
applicants for land covered by pre-emption filings were allowed to com-
plete their filings by paying their fees.
On September 23, 1893 (a few days before the expiration of the three
months above mentioned), the register of the Duluth land office wrote
to your office, recommending that a special agent be detailed to super*
10671— VOL 24 ^23
354 DECISIONS RELATING TO THE PUBLIC LANDS.
vise an investigation of these claims, intimating that there was an
attempt to defraud the government, the extent and particcdars of which
it would be difficult to determine in the absence of reliable testimony,
as in nearly all cases tried before the office the testimony was directly
contradictory; that the government would be better able to arrive at
the facts of the case
by an exaniinatiou of the land before the claimants got away, for it is a well known
fact that ninety per cent of the entrymen in this district under the homestead or
pre-emption law abandon their claims as soon as final proof is made and are there-
after bard to find; and if foand they all stick together and help each other ont^and
the government is beaten.
The above recommendation was denied by your office letter of
November 3, 1893, in which the local officers were directed as follows:
Yon are advised that any filings placed of record prior to the opening of your
office on the day when said lands became subject to filing and entry are illegal, and
final proof can not be based thereon. In such cases you will allow the claimant of
record whose filing or entry is legal to publish notice of intention to submit final
proof, duly citing all adverse claimants of record in accordance with the ruling iu
Reno r. Cole (15 L. D., 174), and advise the claimant whose filing was erroneoasJy
placed of record that his right, so far as requiring him to place his claim of record
within three months after filing of the plat of survey is concerned, will not be
affected by the erroneous action of your predecessor. Should there be cases in which
each of two or more claimants have a legal filing or entry covering the same laud,
any or all of them who desire to do so should be allowed to publish notice of his
intention to submit final proof, duly citing the adverse claimants; and if a protest
is filed in either case, the hearing should be had on or subsequent to the date the
last claimant ofi'ers his proof.
Other correspondence ensued, which it is not necessary to set forth
in detail. It is sufficient to say that each of the pre-emption claimants,
as suggested above, filed an amended pre-emption declaratory state-
ment; that a considerable number of these pre-emption claims were
contested by claimants under the timber and stone act; that heariug
followed to determine their respective rights; and that, whatever the
decision of the local officers might be, an appeal was (generally) taken
to your office, and from your office to the Department.
The land in the several townships hereinbefore described is situated
in the northeastern part of Minnesota. In numerous cases comiug
before the Department on appeal, it is shown by competent witnesses
that there are from fifteen hundred or two thousand to three thousaud
dollars' worth of timber on each quarter section. The preemptors or
their witnesses testify that it will cost fifty or sixty dollars per acre to
clear the land of its timber; and that, after it has been so cleared, it
will be worth for agricultural puri[)oses five or six dollars per acre.
These statements are substantially corroborated by the investigation
ot the government and the records of this Department. According to
the forestry map prepared to accoini)any the United States censas
reports, this region is among the most heavily timbered of any except
a narrow strip close upon the Pacific coast. Its growth of pine timber
DECISIONS RELATING TO THE PUBLIC LANDS. 355
is ansarpassed anywhere. This land is comparatively worthless, how-
ever, for anything except timber. Surveyors recognize four grades of
fertility in soil. The field notes of survey for the townships now under
consideration report the soil as being, almost universally, fourth grade
(the poorest quality). Thus, of township 68 N., 20 W., the surveyor
says: "The soil is of a very poor quality, also being stony; the entire
township is covered with a heavy growth of timber." The line as sur-
veyed between sections 11 and 20, he says, " leaves swamp and begins
to ascend a rocky ridge, through heavy timber." Between sections 10
and 11 of the same township, he reports the line runs along "the top
of a granite ledge; .... soil fourth rate, stony." Of township
66, range 19, the surveyor reports: "This township is mainly rolling,
and is heavily timbered, with a mixed growth; there is considerable
pine on the ledges and rolling ground. Pelican river, flowing across
the SE corner, affords the means for lumbering." Of township 68,
range 18, the surveyor reports: "This township is heavily timbered;
it is mostly rolling and broken, except the swamps, of which there are
quite a number. The soil is sterile." Such expressions are repeated
by the score throughout the several townships here under considera-
tion. This reference to the character of these lands is pertinent in
view of the ruling of the Department that,
While lauda chiefly valuable for timber and stone, and unfit for ordinary agricul-
tural purposes, are not excluded from settlement by the act of June 3, 1878, yet set-
tlements on such lands should be carefully scrutinized, as the exception in said act
is in favor of the bona fide settler; [and] a settlement for the purpose of securing
the timber on the land, or for any other purpose than establishing a home, is not a
bona fide settlement within the meaning of the act. (Syllabus to Wright r. Larson,
7L. D., 655.)
The lands here in controversy are distant, in an air line, from forty
to fifty miles, and by the nearest practicable route from fifty to seventy
miles, from the nearest village, postoflQce, or market — to wit. Tower,
Minnesota. Every article needed by the pre-emptor in supporting his
own existence or improving his claim must be brought this distance,
partly by steamer across Vermillion lake; partly by canoe down Ver-
million river; thence by wagon for another part of the way; and finally
"packed" by the pre-emptor upon his own back for a distance of from
five to fifteen miles, dependent upon the location of his claim.
The most of these pre-emption claimants allege as an excuse for their
almost continual absence from their claims, and for not having built
better houses or made more extensive improvements, the fact that they
were very poor. But it is shown, in most of the cases of this class
now before me, that each of these pre-emption claimants paid certain
so-called "locators" from fifty to one hundred and sixty dollars, for
showing them what tracts were vacant. (This aside from the services
of a surveyor, subsequently, to find the quarter- section comers and
"stakeout" the claim.) If these preemption claimants were so poor,
and were in good faith seeking homes for themselves and their families,
356 DECISIONS RELATING TO THE PUBLIC LANDS.
it seems nnaccountable that they should pay sach a price for being led
into the almost inaccessible depths of a vast wilderness, tx> one of the
most infertile portions of the continent, and pay for sach lands by
taking it under the pre-emption law, when in order to reach them they
were comx)elled to -cross haudreds of thousands of acres of more pro-
ductive land, less difficult to prepare for cultivation, and open to home-
stead settlement and entry <' without money and without price ^ (except
the fees and commissions of the local officers).
It is worthy of notice that in none of the contests herein referred to
does it appear that the pre-emption claimant, if married, had brought
his wife, or any other member of his family to the land. In such cases
there is generally some excuse presented, more or less plausible on its
face, for the wife's absence. A physician's certificate showing that the
wife has been continuously ill and unable to remove to her husband-s
*'home'' during the years of his alleged residence upon his pre-emption
claim, appears to be as uniform 'and indispensable an adjunct as au
affidavit of citizenship.
Twenty or more of the one hundred and twenty- four pre-emption
claims hereinbefore referred to have been contested by timber-land
applicants. The testimony given by the opposing parties in these cases
is usually conflicting, and irreconcilable upon any theory consistent
with the veracity of the respective witnesses. The pre-emption claim-
ants and their witnesses testify to amply sufficient residence, cultivation,
and improvement to warrant the issue of final certificate and patent.
The contesting timber-land claimants testify that the <' house'' built by
the pre-emption claimant is a small and uninhabitable ^^ shanty"; that
there has been no ''improvement" be^'ond the cutting down of trees
about the shanty sufficient to furnish the logs to build it; and that the
alleged ^'residence" on the part of the pre-emptor has consisted of
occasional and rare visits to the land in controversy.
The leading witnesses for each pre-emption claimant whose filing is
alleged to be fraudulent are almost uniformly other pre-emption claim-
ants who are also charged with fraud. Thus in the case of Halstein
Svergen, now before me, his witnesses are Simon Maley and Peter Eck,
whose cases are also now before me, their pre-emption final proofs hav-
ing been protested on charge of fraud, and John Quaderer, whose filing
was ordered canceled upon that ground by departmental decision of
October 3, 1896 (342 L. & K., 149). And so on, throughout the entire
list.
While the preceding history of transactions connected with the open-
ing to filing and entry of the townships hereinbefore named, can not
properly be considered as evidence controlling individual cases, yet it
shows a condition of affairs of which the Department, in its general
supervision of the disposal of the public lands, must take notice, iu
connection with the facts disclosed upon the examination and consid-
eration of the record in each case.
DECISIONS RELATING TO THE PUBLIC LANDS. 357
In the particular case which the Department is now called upon to
consider, Barbara Murphy, on June 16, 1893, filed pre-emption declara-
tory statement for the NE. J of the NE. J of Sec. 34, the W. J of the
'SW. i and the SE. J of the N W. i of Sec. 35, T. 67 N., R. 19 W. This
filing being held illegal because of having been received and allowed
by the local officers before nine o'clock of the day when the land became
subject to filing and entry, she made a second filing on December 28,
1893. She based her right to file such pre-emption declaratory state-
ment upon the alleged settlement by her husband, John H. Murphy, in
December, 1890.
On August 2. 1893, William Buckley filed timber-land statement for
the same land.
This conflict of claims resulted in a hearing, at which testimony was
taken that elicited the following facts:
The land in controversy is rolling, rough, and rocky; it has no value
whatever except tor the pine timber growing upon it. At the date of
the pre-emptor's final proof and of the hearing there was no sign of
cultivation of any part of the land; the only improvement was that
the underbrush had been cut from about half an acre of the land; the
only indication that any one had ever settled or resided upon the land
was a log shanty, estimated to have cost $18 or $20, This shanty had
a new floor in it — but this floor had been i)ut in after the date of the
timber-land entry. This had not been done by the pre-emption claim-
ant's husband, for he had died a year and a half before it was pla-ced
there; and not by the pre-emption claimant herself, for she had never
heard of its existence.
Mrs. Murphy, the pre-emption claimant, testifies that she and her
husband were married in Michigan in 1882; that they moved to Duluth
m 1883; that at the date of her husband's alleged settlement on the
land in controversy (December 26, 1890), he and she were "living
together right along" in West Duluth (between 125 and 150 miles from
«
the land), where he was engaged in his business as carpenter, and con-
tinued to live together "right along" until his death (September 17,
1892); she knows that he left home with the avowed intention of going
to the land in controversy oyice; she never went to the land, and does
not know where it is.
The local officers, as the result of the hearing, rendered joint decision,
recommending that Mrs. Murphy's i)re-emption filing be canceled. She
applied to your office, which, on February 25, 1896, affirmed the judg-
ment of the local officers. Thereupon she appeals to the Department.
Her counsel, in said appeal, copies, verbatim or in substance, each
sentence of the finding of your office decision, and alleges that it was
an error; but he makes no reference to any testimony showing it to
have been erroneous. He complains that your office erred "in refusing
credit at final proof for residence prior to filing" — ^but ignores the fact
that the testimony does not show an hours residence prior to filing. At
358 DECISIONS RELATING TO THE PUBLIC LANDS.
the hearing, he drew firom the pre-emption claimant a statement of the
&ct that she was a widow, in poor circamstances, with three little chil-
dren ; but this does not warrant yoar office or this Department in award-
ing to her a quarter-section of the public land without compliance with
the law in any respect or degree upon her part or that of her deceased
husband.
The decision of your office was clearly correct, and is hereby affirmed.
SETTLEMENT RIGHT— OKL.VHOMA LANDS.
Fbazier bt al. v. Taylor.
tinder the couditioiis attendant upon the opening of lands to settlement in Oklahoma
the sticking of a stake may be recognized as initiating a settlement right, as
against competing settlers on the day of opening, but such act will not be aTail-
able as against subsequent settlers if not followed, within a reasonable time,
by additional acts evidencing an intention to make a bona fide settlement.
Secretary Bliss to the Commissioner of the General Land Office-^ April
(W, y . D. ) 29, 1897. (G. C. K.)
James M. Prazier has appealed from your office decision dated Octo-
ber 8, 1895, which dismisses his contest against the homestead entry
made October 16, 1893, by Willie G. Taylor, for the SW. J of Sec. 28, T.
28 N., R. 1 W., Perry, Oklahoma.
Your said office decision reversed the finding of the register and
receiver, which sustained the contest, and recommended the cancella-
tion of the entry.
It appears that Alexander H. Sims also filed a contest, but upon the
day of hearing (October 31, 1894,) he made default, and his contest was
dismissed.
The land is a part of the Cherokee Outlet, and was opened to settle-
ment September 16, 1893, — one month before Taylor made entry.
There is little or no controversy over the facts, which appear to be
as follows :
Frazier had learned that the land was vacant, unimproved and
uninhabited, and on October 1, 1893, he, in company with his father,
mother, two brothers and a sister, settled upon it. He was twenty-
six years old, and unmarried^ He took with him to the land eight
head of horses, a plow, wagon and harness, household goods, etc. He
erected a tent, into which he and his father's family moved. With
the assistance of his father and brother, he at once erected a house,
fourteen by sixteen feet, which was completed for occupancy in abont
one week from date of settlement. At date of hearing, he had fenced
about ninety acres of the land, had broken fifty acres and had sowed
twenty acres to wheat. He, with his father's family, thereafter con-
tinuously resided on the land, and had purchased additional farming
implements. The next day after he settled, he went to Perry to make
DECISIONS RELATING TO THE PUBLIC LANDS. 359
entry of the land; he remained there three or four days ana returned
to the land, being unable, for some reason, to obtain his entry; he
assisted in the improvements, until October 16, 1893, when it appears
that he presented his homestead application for the land; finding that
Taylor on that day had made entry thereof, he at once filed his contest
affidavit, alleging, in substance, his x)rior settlement upon the land, and
that he had made the improvements above described. The testimony
shows that he in fact was the prior settler, and that Taylor, the entry-
man, never made any settlement, or performed any act showing bis
intention to settle, until October 24, 1893.
It apx>ears that Taylor made the race, with other intending settlers,
on September 16, 1893; that he stuck a stake on another tract, where
it remained until September 27, 1893; he then learned that another
person had preceded him to that tract, and on the next day (September
28) he took the same stake and stuck it on the adjoining tract — sup-
posing he had placed it on the land in controversy.
He testified that the stake was two and a half feet long, three
inches wide, and had attached thereto a white muslin fiag; inscribed on
the flag and on the stake were the words : " This claim taken by W.
G. Taylor." When, on October 1, 1893^ Frazier erected his tent on the
land, he discovered this flag, and saw Taylor's name, with the inscrip-
tion as given above. Frazier began to investigate the situation of the
lines and corners, and admits that he then thought that Taylor's flag
was on the land; he thereupon plowed a furrow on what he supposed
was the west line of the claim, and this furrow was west of the place
where Taylor had stuck the stake. Subsequently, he had a surveyor
run out the lines of the land, when he discovered that Taylor's flag
had been placed about six rods west of the west line of the land.
Neither Taylor nor his witnesses denied that the flag was in fact placed
on the tract adjacent to and west of the one in controversy, although
Taylor doubtless thought he had placed it on the land he afterwards
settled on, being the land in question. From September 28, the day
Taylor thought he placed his flag on the land, until October 5, follow-
ing, he was not on the land; but upon the latter date he went to the
land, and informed Frazier's brother, then on the land, and living in
the tent erected by contestant, that he (Taylor) claimed the tract, and
called attention to the flag.
It will not do to say that the mere placing of a flag on the public land
is such an evidence of settlement as will in all cases defeat the rights
of one who in good faith settles upon the land subsequently. In the
general rush for lands on the day of opening, when thousands are com-
peting, he who reaches the land first and gives notice of his intention
to settle by the mere sticking of a stake will by such slight act defeat
a slower man in the race. But such an act should in a reasonable time
be followed by the performance of additional acts, evidencing the set-
tler's intention to make a bona fide settlement.
360 DECISIONS RELATING TO THE PUBLIC LANDS.
Even if Taylor had, iu fact, pat his stake on the land, he at once left
the tract to go to see his ^^consin"; he did not return to the land until
six days had elapsed; he gives no reason for not performing some sab-
stantial act of improvement, and he still postponed his settlement or
doing anything more in relation to the land until after Frazier had he^
there more than three weeks.
Under this state of facts, Frazier has the superior right to the land.
Your said office decision is accordingly reversed. Taylor's entry will
be canceled, and Frazier's application will be allowed.
timber land pukcnase— application.
Coffin v. Newcomb.
An applicant for the right of timber land jnirchaae must show that the land applied
for is free from adverse oocapancy, and that he has made no other application to
purchase under the timber land act.
Secretary Bliss to the Commissioner of the Oeneral Land Office^ April 2ii,
<W. V. D.) 1897. (J. L.)
This case involves the jS'E. J of section 26, T. 12 N., R. 1 E., Hamboldt
meridian, Humboldt land district, California.
On June 1(>, 1885, William H. Newcomb made homestead entry No.
2440 of said tract.
On June 17, 1885, William II. Coffin filed his pre-emption declaratory
statement No. 5672 for said tract, alleging settlement on March 20, 1885.
The official map of said township was susx>ended on February 15,
1886, and the suspension was removed on June 14, 1892. In the inter-
val one Silas M. Epps contested Newcomb's entry. Said contest was
dismissed by departmental decision of April 14, 1891 (217 L. and R.,
170), holding in substance that during the period of susi>ension settlers
were not obliged to reside upon, or improve and cultivate their claims.
On August 4, 1892, Newcomb filed his relinquishment to the United
States, and his entry was then canceled. On August 6, 1892, in
accordance with the act of June 3, 1878 (20 Stat., 89), entitled "An act
for the sale of timber lands in the States of California" et^c. etc., Kcw-
<^mb filed his application to purchase said tract for $2.50 per acre, and
^Iso his sworn statement as required by the second section of that act;
and on the same day, August 5, 1892, the register issued the notice
ibr publication required by the third section of the act, and fixed Octo-
ber 21, 1892, as the day for Newcomb to make his final proof, and
requested all persons claiming adversely to file their claims.
Coffin appeared aud filed his claim under his preemption declaratory
statement aforesaid, and filed his protest alleging in substance (not
literally) the following' grounds of objection to Newcomb's proposed
timber entry :
(1) That he (Coffin) settled upon the land in March, 1885.
DECISIONS RELATING TO THE PUBLIC LANDS. 361
(2) Tbat the survey of the township was suspended in 1886.
(3) That the suspension was removed in June 1892.
(4) That on the second day of August 1892, he (CoflBn) again took up
his residence upon said land and is now living upon said land with his
family consisting of a wife and three children.
(5) That said Newcomb made his timber filing upon said land on the
5th day of August, 1892^ and that he (Coffin) was an actual settler
upon said land, and that there were improvements ui)on said laud, at
the time when said timber filing was made.
(6) That said land is agricultural land and not timber land.
Wherefore Coffin prayed that the timber filing of Newcomb be can-
celed, and that he (Coffin) be allowed to complete his pre-emx)tion claim
and enter the land.
On October 22, 1892, Newcomb offered his proof as advertised; a
hearing was had, and witnesses were examined and cross-examined in
the presence of both parties and their attorneys.
On January 12, 1894, the local officers recommended that Newcomb
be allowed to complete his timber purchase, and that the contest of
Coffin be dismissed.
Coffin appealed; and while his appeal was pending in your office, to
wit: on April 16, 1894, Coffin filed a motion for a rehearing or new trial
of the case, upon the ground of newly discovered evidence, supported
by affidavits and copies of official records.
On June 21, 1895, your office denied the motion for a lehearing,
affirmed the decision of the local officers, approved Newcouib's final
proof, and held Coffin's declaratory statement for cancellation.
Coffin has appealed to this Department.
Newcomb filed a carefully prepared answer to Coffin's motion for a
rehearing. A comparison of the motion and the answer shows the fol-
lowing undisputed facts :
(1) On October 2, 1884, Newcomb filed an application to purchase the
NW. J of section 10, T. 11 N., R. 3 E., Humboldt meridian, under the
timber land act of June 3, 1878, and also his duplicate *^ sworn state-
ment" as reriuired by said act, (2) Notice of the application was duly
published for sixty days. (3) In the meantime, on December 11, 1884,
the survey of that township was suspended. (4) On January 3, 1885,
the sixty days for publication of notice having expired, Newcomb ten-
dered proof and x^ayment. (5) A new maj) of the township was filed
ofl November 22, 1889. And (6) "said statement was never withdrawn
from the land office and is now on file therein among the papers of said
office.^
In explanation of said admitted facts Newcomb in his answer said :
NovembeT 22, 1889, a new survey and plat was filed, ohangin/; the lay of the rivers
and streams in said township, and also changing the location of said N\V. ^ of said
section 10 over a mile from where it lay on the old plat. Affiant further says that
immediately after the new survey was filed in the local land office, he went upon the
N W. I of said section 10 as shown by the new plat and found the same to be entirely
362 DECISIONS RELATING TO THE PUBLIC LANDS.
different land from that he had sought to purchase ft'om the government; that the
said claim aH located on the new plat has no timber upon it and was entirely worth-
less to thiM affiant or to any one else ; that when applications were received upon the
new survey, there was a great rush and a great crowd of people seeking to file upon
the lands in said township, and affiant wsis prevented from filing upon the land cov-
ered by the NW. ^ of said section ten as it appeared on the old plat; that affiant
accordingly made application to get his right to file a timber claim back, and he was
informed by S. C. Boom, the then register, and R. W. Hutch ins the then receiver of
the land office, and by B. F. Bergen the then special agent of the Land Department,
that no action upon the part of the affiant was necessary, that if the new surrey
changed the location of his claim, he was at liberty to abandon his filing withont
prejudice to bis filing another timber application.
An examination of the old and new maps of said township together,
does not corroborate but contradicts Newcomb's statement that the
new map changed the location of the NW. J of section 10 over a mile
from where it lay on the old map. In fact the change, if any, was slight
and inconsiderable. And an examination of the tract book in your
office shows, that said quarter section is yet vacant, and unclaimed by
any other person; so that it remains reserved by Mr. ]Sewcomb's appli-
cation to purchase and publication of notice.
The facts stated and verified prima facie^ in support of the motion for
a rehearing, were newly discovered evidence in respect to which Coffin
had not been guilty of laches. They are material and important in
this case. Your office erred in denying the motion for a rehearing:
and in assuming without inquiry that Newcomb's explanation was true,
and in holding that his failure to purchase the tract formerly applied
for under the said act was due to no fault of his own, and in concluding
that his rights in the premises were not prejudiced thereby.
The "act for the sale of timber lands" aforesaid, in section 2, requires,
that the applicant shall file under oath a written statement in duplicate,
setting forth, among other things, (1) that the tract is uninhabited, (2)
that it contains no improvements except for ditch or canal purposes,
"save such as were made by or belonged to the applicant," and (3) that
"deponent has ma<le no other application under this act." Each one
of these si)eclfications is an essential condition precedent to the acqui-
sition of a right to make a timber purchase. Section 3 of the act
requires the applicant to prove that the tract was "unoccupied and
without improvements other than those excepted.^' The record and
the testimony in the case show beyond doubt, (1) that on August 5,
1892, when Newcomb filed his timber purchase application and sworn
statement, the tract was, and since August 2, 1892, had been, occupied
and inhabited by Coffin, (2) that there were on the tract improvements,
which had not been made by and did not belong to Newcomb, and (3)
that Newcomb had made another application to purchase timber land
under the act of June 3, 1878. In consequence of the failure of each
one of these three conditions precedent it follows, that Newcomb's appli-
cation to purchase the tract in controversy must be denied. Moreover
his allegation that "the tract is unfit for cultivation" is not sustained
DECISIONS RELATING TO THE PUBLIC LANDS. 363
by a preponderance of the evidence, and it is discredited by the fact
that he made homestead entry of the tract in 1885, and resided npou it
until some time after the suspension of the township map in February,
1886.
It is proved that Coffin made his first notorious settlement on March
20, 1885, by cutting down trees and making four logs, which he laid in
the form of a square foundation for a house, in a conspicuous place on
the tract. Within three months thereafter, on June 17, 1885, he filed
his declaratory statement at the laud office. In the month of August
1885 he returned to the land and began to cut brush for a clearing, but
was taken sick in the woods and was obliged to stop work. The map
was suspended in February 1886. After he was informed of the removal
of the suspension, on August 2, 1892, he returned to the tract and
resumed his residence thereon, occupying and living in a house or cabin
built by one Hildreth. He immediately began to build for himself a
bouse twenty -four feet long by sixteen feet widej and to clear a patch
for a garden. In September he moved his family consisting of his wife
and three children upon the place, and he and they continued to reside
there until the day of the hearing, with intent to maintain his home
there to the exclusion of a home anywhere else. Coffin's claim appears
to have been made and prosecuted in good faith. It is based upon his
settlement made and his pre-emption declaratory statement filed in
1385; and also upon his rights as a bona fide settler, occupant and resi-
dent on and after August 2, 1892.
The act of Congress under which Newcomb claims, in section 1 pro-
vides: ^'That nothing herein contained shall defeat or impair any bona
fide claim under any law of the United States." Newcomb's applica-
tion to purchase being eliminated from this controversy. Coffin remains
in possession free to prosecute his claim either as a pre emption or as a
homestead, as he may be advised.
See cases of Hughes v, Tipton, 2 L. D., 334, and Block v. Contreras,
4 L. D., 380 : Also Crooks v. Hadsell, 3 L. D., 258, Houghton v. Junett,
i L. D., 238 and F. E. Habersham, 4 L. D., 282, and many other cases
since in accordance with the views herein expressed.
It does not seem necessary to prolong this controversy by directing
a rehearing as asked by Coffin.
Your office decision is hereby reversed. Newcomb's final proof is
^rejected, and his application to purchase the NE. J of section 26, T.
12 N., B. 1 E., Humboldt meridian, California, is hereby denied. Cof-
fin is left at liberty to prosecute his claim to said tract under the pre-
emption or homestead laws as he may be advised.
364 DECISIONS EBLATING TO THE PUBLIC LANDS.
RAILROAD GRANT— CERTIFICATION-SCHOOL. INDEMNITY SELECXIOX.
St. Paul and Sioux City R. R. Co. r. State op Minnesota.
A certification under the act of August 3, 1854, of lands on account of a railroad
grant that were, at the date of the grant, embraced within a pending ^taui /ride
valid school indemnity selection, is no bar to the subsequent appro>'al of such
selection.
Secret4iry Bliss to the Commissioner of the General Land Office^ April 29,
(W. Y. D.) 1897, (F. W. C.)
The St. Paul and Sioux City Railroad Company has appealed from
your office decision of January 3, 1896, holding for cancellation its list-
ing of the SW. J of the NW. J of Sec. 15, T. 104 K., R. 36 W., Marshall
land district, Minnesota.
This listing was first held for cancellation by your office decision of
November 5, 1892, for conflict with the indemnity school selection made
December 9, 1863. The company appealed, and in its appeal urged
that no such selection had been made by the State as described in
your office decision, whereupon, by departmental letter of March 8,
1895, you were directed to make further examination of the records,
relative to the i)osting of said school selection, in order to test the cor-
rectness thereof, and to make due report to this Department. By your
office letter of March 26, 1895, rex)ort was made that a careful examina-
tion disclosed no such selection by the State^ and that the posting,
therefore, was deemed to be an error; further, that from a report of
the State Auditor it appeared that there was no record by the State of
any such selection.
Acting upon this report, by departmental decision of April 13, 189.5
(not reported), your office decision of November 5, 1892, was reversed
and you were directed to examine the listing by the company with
a view to its submission for the approval of this Department In
November, following, the State school list of December 9, 1863, was
found in your office, and on November 19th this Department was
advised thereof; whereupon, by departmental decision of December
18, 1895, the decision of April 13, 1895, was revoked and you were
directed to readjudicate the matter in the light of all the facts pi*e-
sented. It was under this order that you have again considered the
matter and again held for cancellation the company's listing holding
the land to have been excei)ted from its grant; from which action it
has appealed to this Department.
The land is within the ten mile or primary limits of the grant for
said company under the act of May 12, 1864 (13 Stat., 74), and is oppo-
site the portion of the road shown upon the map of definite location
filed June 28, 1805, upon which withdrawal was ordered August 10, 1865.
The tract under consideration was selected by the State of Minnesota
December 9, 1863, in Heu of a deficit in township 104 N,, range 34 W,,
DECISIONS RELATING TO THE PUBLIC LANDS. 365
prior to the passage of the act making the grant and the definite loca-
tion filed thereunder. The State Land Oommissioner^ in his letter of
November 4, 1895, claims that this selection was really made in lieu of
the deficiency in township 104 X., range ''36" W.^ and that the substi-
tution of range "34" W., as it appears in the list, was due solely to a
clerical error, which, your office decision states,
appears to be trae, from the fact that the township plat shows no deficit in township
U4 X., range 34 W., as above stated, while the plat of township 104 "S., range 36 W.,
shows a deficit of 62.48 acres — the quantity reported in said list.
Eelative to the railroad claim, it appears that on August 23, 1867,
the State listed the entire section 15, township 104 N., range 36 W.,
which list was approved by the Department December 6, 1867. In this
list approved in 1867 there appears to have been errors, and a new list
correcting the errors was submitted for approval, which was approved
June 10, 1866. This latter list included all of said section 15 except
the SW. i of the NW. J — the tract now under consideration.
In the company's appeal it is urged that, as this tract was originally
certified on account of the grant, it has passed beyond the jurisdiction
of this Department; further, that the State's indemnity selection was
invalid because the basis originally assigned did not exist, and that a
substitution could not be made in the presence of the adverse claim
made by the company.
The certification referred to was under the provisions of the act of
Angust 3, 1854 (10 Stat., 346), which statute, was considered by the
sapreme court in the case of Weeks v. Bridgeman (159 U. S., 541), in
which it was held that certifications under that act are of no operative
effect if the land in fact was excepted from the operation of the grant.
The sole question for consideration, therefore, is. Did the State selection
serve to except the tract from the grant for said company? If it did,
the subsequent approval of the land on account of the railroad grant
could not prevent the approval of the land to the State on account of
its selection ; and the question of the amendment of said selection by
the State is solely one between the United States and the State.
As thus presented the case is in all important particulars similar to
that of the Southern Pacific Eailroad Company v. State of California
(4 L. D., 437), in which it was held —
In the case at bar the selection was allowed and was prima facie valid, and the
fact that long after the date of said grant and the time when the company's right
attached, it was dincovered that 8aid selection was invalid, can not affect the com-
pany's claim. Its right had already been lixed, and the selection of said tract being
intact upon the record, was such an appropriation of the land as excepted it from
the grant. Such was the doctrine announced by this Department in the case
between the same parties, reported in 3 L. D., 88.
Your office decision holding the tract under consideration to have
been excepted from the company's grant, and holding for cancellation
its listing thereof, is accordingly affirmed.
366 DECISIONS RELATING TO T^E PUBLIC LANDS.
oklahoma towxsite -additional assessment.
City of Gutheie.
In the dispoeition of town lots under the act of May 14, 1890, an additional asfiess-
ment, for the legitimate pnrposea of the act, is authorized where sach action
operates uniformly upon all lots alike; but there is no authority for such an
assessment where the burden falls upon the unclaimed lots alone.
Secretary Bliss to the Commissioner of the General Land Office, April 2%
(W. y. D.) 1897. (P. J. C.)
On August 13, 1894, the city attorney of Gutlirie, Oklahoma^
addressed a communication to your office, in the nature of a protest
against the action of townsite board No. 6, in the matter of its settle-
ment with the city on account of the sale of unclaimed lots, alleging
that the board had made erroneous assessments against the fand
realized from the sale, thereby diminishing the amount to the extent
of several hundred dollars that should have been turned into the city^s
treasury. Your office, on September 7, 1894, denied the claim, and,
in a rather informal way, the matter was brought to the attention of
the Secretary of the Interior. The subsequent action of the Depart-
ment will be recited later on in its chronological order.
By section 4 of the aet of May 14, 1890 (26 Stat., 109), it was provided:
That all lots, not disposed of as hereinbefore provided for, shall be sold under the
direction of the Secretary of the Interior for the benefit of the municipal govern-
ment of any such town.
The instructions of your office of March 31, 1893 (16 L. D., 341), in
relation to this particular section, were that:
All moneys for which lots may be sold shall be paid to the disbursing officer of the
respective boards, who will issue his receipt therefor, and from the proceeds of Buch
sales, all expenses attending the sale and conveyance of the lots sold shall be paid,
and all assessments upon the lots sold shall be deducted from such proceeds.
Upon the conclusion of each sale the board will report to this office the result
thereof, the amount of money received from the sale of the lots, the expenses attend-
ing the sale and conveyancing, the amount of assessments upon the lots sold, and all
claims by members of the boards for compensation for work in connection with such
sales.
In pursuance of this act, and the instructions, the board on Angast
26, 1893, sold some unclaimed lots in East Guthrie, and on October 14,
1893, sold others in Capitol Hill and West Guthrie, and the recapitula-
tion of its report to your office on these sales is as follows:
CAPITOL HILL.
Valuation of the lots sold $14,900.
Total amount realized $1,3^.50
Cost of publication notice $37.34
Notary fees 7.76
Clerk hire 5.44
Original assessments 149. 00
7i pr. ct. additional assm't on $14,900 on oriinnal valuation.. 1, 117.50
1,317.03
61.47
DECISIONS RELATING TO THE PUBLIC LANDS. 367
EAST GUTHRIE.
Valuation $2,950.00.
Amt. of additional assess't (22^ % on valaation) $663. 75
Pub. notice of sale $36.75
Pd. W. B. Cherry, notary & clerk 7.75
OricriDal assessments 29. 50
74. 00
Total 737.75
Total am't of sales 811.00
Total bro't down 737.75
Balance due city gov't 73. 25
WEST GUTHRIE.
Valuation $1,300.
Total amount realized $188.25
Publication notice $3.91
Notary fees (5 deeds) 1. 25
Clerk hire .56
Original assessments 19.50
121 pr. cent additional assessment on $1,300, original valuation. 162. 50
187. 72
Balance due townsite 0. 53
It will be Been that the total amoant realized from the sale was
$2,377.75, and of this sum but $135,25 was tendered the city, which it
declined to receive.
The contention is, that there is no authority for levying the " addi-
tional assessments," as shown above. The other items of expense as
reported are not objected to.
It appears by a letter from the chairman of the board, dated October
10, 1893, transmitting his report of the sale in East Guthrie, that the
additional assessment was made to meet <^ current expenses." It is
changed by the city that the additional assessment in each case was
made for the purpose of covering expenses of the board in other matters,
aside from those connected with these identical sales, and the money
thus obtained was used in this way to the detriment of the city.
On January 30, 1895, Mr. Secretary Smith considered the matter, and
held that under the regulations of November 30, 1894 (19 L. D., 334),
the board had the authority <Ho make the additional assessments,
which seem to have been rendered necessary by its financial embarrass-
ment." Inasmuch as there was no detailed statement of the actual
expenses incurred by the board in making these sales, the whole matter
was returned to your office that such an account be stated and then
traosmitted to the Department for further action.
On January 26, 1897, your office transmitted the rei>orts of the board,
the recapitulations of which are quoted above, and, in addition, a report
from the board of the time consumed by each member in connection
368 DECISIONS RELATING TO THE PUBLIC LAXD8.
with the sales. By this latter statement it is shown that the hoard
charges for forty-two clays' service, at $17 per day, which amounts to
$714. It will be observed that in its original report the board does not
make any charge "for compensation for work in connection with such
sales," as required by the instructions.
The Department took up the matter for consideration, and, on Feb-
ruary 6, 1897, Mr. Secretary Francis again sent the matter back to your
office for additional information as to the time actually spent by the
board in connection with the sales; also to submit a statement of these
accounts in conformity with the circular of March 31, 1893.
The whole matter is now before the Department for consideration,
and, under the statement of the accounts as submitted by your office,
as requested by departmental letter of February 6, 1897, there would
be nothing due the city, the amount realized falling short of expenses
and assessments about $89.00. The difference between the two state-
ments is accounted for by the fact that your office adds the per diem
compensation of the board, which the latter omitted.
Aside from the fact that the reports of the board were not in con-
formity with the regulations, in that they did not include the time
occupied by its members in connection with the sales, the real iwint in
issue is, whether the board was justified in levying the additional
assessments that have been so potent a factor in exhausting the funds
that otherwise would have been turned over to the city.
It will be observed that the additional assessments made are not
uniform; that against Capitol Hill being seven and a half x>er cent;
East Guthrie twenty- two and a half per cent, and West Guthrie twelve
and a half per cent. We are not advised fully the exact purpose for
which they were made, but it appears that there was financial embar-
rassment with the present board by reason of the mismanagement of
its predecessor, and that these assessments were levied for the purpose
of meeting the current expenses of the board.
By informal inquiry in your office, it is learned that there were no
other lots in its control upon which any such assessments were made
by the board.
The decision of the Department of January 30, 1895, in this matter,
holding that more than one assessment might be made, is based on
paragraph 11 of the regulations of November 30, 1894. While it is
true that this circular was not in force at the time of the transaction
now under consideration, yet the ruling made there might be construed
to apply to the circular of March 31, 1893. In this latter circular it is
said: <^And all assessments upon the lots sold shall be deducted from
such proceeds," thus, in effect, authorizing more than one assessment
But it is apparent that in that decision it was only contemplated
that such assessments should be levied as were authorized by law,
because your office was called upon to give a detailed statement of the
transactions, for the very purpose, it will be assumed, vf ascertaining
DECISIONS EELATmO TO THE PUBLIC LANDS. 369
whether there was any violation of the law or regulations. In view
of the showing now made to the Department for the first time, the
question arises whether these assessments were authorized.
In my judgment, there was no warrant for this action in the c^tse at
bar, either under the law or the instructions. The net proceeds of
these sales were in contemplation of the statute a donation to tho
innnicipalities, and any diversion of the funds, after paying the legiti-
mate expenses attending the sales and the original assessment required
t4) meet the items contemplated by statute, enumerated in the eleventh
paragraph of the circular, November 30, 1894, was illegal. Ample
provision is made for the compensation of townsite boards and for
their current expenses in each individual case in which they are called
upon to act officially, and there wonld seem to be no excuse for appro-
priating from the fdnd arising from such sales money to pay <' current
expenses'' or for any other purpose not immediately connected with the
sales.
There can be no objection to making more than one assessment for
the legitimate purposes of the act, where it is made uniform, so that
the burden wiU fall on all lots alike, but to make the unclaimed lots
alone, as in this case, bear all the burden of the shortage, is, in my
judgment, wholly unwarranted.
I can not agree to a construction of the law that will place it in the
power of a townsite board to arbitrarily make assessments as their
caprice or interest might suggest.
The result of the action of the board in this case was to make the
municipality bear the burden of the former delinquencies, and thus
deprive it of the fund Congress contemplated should go into its
treasury.
The board did not in making its report include its per diem comi)en-
sation, as required, but evidently paid its members out of the addi-
tional assessment. An examination of its weekly reports of service,
Bobmitted at the time, shows that individual members put in a total
of thirty nine days, amounting in the aggregate to $228.00, and the
settlement should be made on this basis.
Eliminating the additional assessments from the accounts, the settle-
ment should, in my judgment, be upon the following basis:
cApitol hill.
To amount £rom sale of lots $1,378.50
By am't paid for publishing notice of sale $37.34
" " notary fees 7.75
" " clerkhire 1 5.44
'* " J. B. O. Landrum, trustee, 9 days at $7 per day 63. 00
" " John T. Taylor, trustee. 17 days at $5 per day 85. 00
'' amount of ori nal asst on lots sold 149.00
347.53
Balance due the city 1,030.97
10071— VOL 24 ^24
370 DECISIONS RELATING TO THE PUBLIC LANDS.
WEST GUTHRIE.
To amount rec'd from Bale of lots $188.25
^7 am't paid notary fees $1.25
" " clerkhire 56"
" ** J. B. O. Landram, trostee, 3 days at $7 per day 21. 00
^< amount of original aaa't on lots Bold 19.50
42.31
Balancedue the city 145.94
EAST GUTHRIE.
To amount rec'd from sale 1811. ft'
By am't paid publishing notice of sale $36.75
" •* notary public and olerk 7.75
** " Hugh McCurdie, trustee, 1 day at $5 per day 5. 00
" " John T. Taylor, trustee, 8 days, at $5 per day 40. 00
** <* J. B. O. Landrum, trustee, 2 days at $7 per day 14. 00
'' amount of original ass't on lots sold 29.50
133.00
Amount due the city 61^.00
This makes a total due the city of $1^854.91.
The action of your office approving the accounts of board No. 6, in
-the sale here under consideration^ is reversed, and the settlement will
he made in accord with this decision.
SATLBOAD GRANT-INDEMNITY SELECTION— SPECIFICATION OF LOSS.
Bbown V. Northern Pacific R. R. Co.
Sailroad indemnity selections, made under the departmental order waiving speoifiea-
tion of loss, are valid, and while of record a bar to the allowance of adverse
claims. A subsequent designation of losses in bulk in support of such selectioDs,
■and rearrangement of the losses so designated, tract for tract, to correspond with
(he selections, can not be regarded as an abandonment of the company^ right
under the selections as originally made.
Indemnity selections, regular and legal under the existing construction of the grant
at the time when made, should be protected under a changed oonstruction of the
grant.
Secretary Bliss to the Commissioner of the General Land Office^ April 29^
< W. V. D.) 1897. (J. L. McC.)
Philander N. Brown has appealed from the decision of your office,
4lated December 28, 1895, holding for cancellation his homestead entry
ibr the SW. J of Sec. 31, T. 132, R. 65, Fargo land district, North
Dakota.
The tract lies within the indemnity limits of the Northern Pacific
IBailroad. It was selected by the company per list No. 7, on April 9,
1883; re-arranged October 12, 1887 ; February 23, 1892; and November
26, 1895.
DECISIONS RELATING TO THE PUBLIC LANDS. 371
On October 14, 1885, Brown made homestead tetry for the tract in
controversy.
The list filled on April 9, 1883, was not accompanied bgr a list of the
losses within the primary limits which served as bases for the selec-
tions. Snch a list was in accordance with and (if in other respects
proper) recognized as valid by the departmental instrnctions of May
28, 1883 (12 L. D., 196).
The list filed on October 12, 1887, contained a desiguatiou of losses,
as required by departmental circular of August 4, 1885 (4 L. D., 90).
Such losses were, however, set down <Mn bulk" — not arranged tract for
tract with the corresponding selections.
The list filed February 23, 1892, contained a designation of losses
arranged tract for tract, as required by the Department in the case of
the Northern Pacific Railroad Company v. John O. Miller (11 L. D.,
428), and of the Florida Central and Peninsular Bailroad Company
(15 L. D., 529).
The re-arranged list of November 26, 1895, was rendered necessary
by the departmental decision of November 13, 1895 (21 L. D., 412), hold-
ing that the grant for the Northern Pacific Eailroad Company did not
eitend east of Superior, Wisconsin.
The appeal contends that Brown's homestead entry (of October 14,
1S95, «^iepra,) was allowed <' prior to any valid selection by the com-
pany," and that ^4t was error to hold that a subsequent selection can
in any way affect" said entry.
The above is tantamount to an allegation that the 8evei*al selection
lists filed by the company prior to October 14, 1895, were invalid.
This contention, however, can not be sustained. The Department has
decided, in the case of O'Brien v. Northern Pacific Bailroad Company
(22 L. D., 135), as correctly summed up in the syllabus:
Indemnity Belections made under the departmental order waiving specification of
loss afe valid, and while of record a bar to the allowance of adverse claims. A list
in balk of lost lands filed thereafter in support of such selections does not invalidate
the same; nor can a subsequent re-arrangement of said list, tract for tract, t<o corre-
spond with the selections, be regarded as an abandonment of the company's right
under its original action.
It is not alleged, and it does not appear from the record, that the
company has ever done anything that can be construed as an aban-
donment of its selection of the tract in controversy in 1883,* and said
selection has since that date remained of record, a notice and a bar to
the allowance of any adverse claim.
The appellant contends that the selection of 1883,
having been voided by the decision of the Honorable Secretary, dated November 13,
1S95, it was error to hold that such alleged selections are a bar to appellant's entry.
This language undoubtedly refers to the decision in the case of the
Northern Pacific Railroad Company (21 L. D., 412, supra), holding that
said company had no grant east of Superior City, and that losses
372 DECISIONS RELATING TO THE PUBLIC LANDS.
alleged to have occurred east of Superior City could uot be made tlie
basis for indemnity selections in North Dakota.
The allegation that the selection of 1883 was voided by said decision
16 incorrect. It expressly directed "that the company be allowed sixty
days for notice of" said "decision within which to specify a new basis
for any of its indemnity selections voided" thereby. In the case of list
No. 7, here under consideration, notice was given to the company, as^
above directed; and within much less than the sixty days prescribed
by the Dei>artraeutt the company specified new bases for its selectimis.
Said selections, having been regular and legal under the existing ton-
struetion of the grant at the time when made, should be protected
under the changed construction. (See Gamble v. Northern Paciiic
Kailroad Company, 23 L. D., 351.)
The company's selection of the tract in controversy therefore appears
to be in all respects valid; Brown's entry for the land covei-ed thereby
was improperly allowed; and the decision of your office holding said
entry for cancellation is hereby affirmed.
STATE BOUNBARY-RTVER-CHANGE OF CHANNEI..
Opinion.
The bonndary between the Indian Territory and the State of Texas is the line of the
middle of the main channel of Red river as it existed when Texas was annexed
to the United States, and subsequent sudden changes in the cnrrent or maiD
channel of said river will not in any way affect the location or position of Mid
boundary line as it lay upon the earth's surface when established.
Assistant Attorney-General VanDevanter to the Secretary of the Interior.
(J. L.)
I have received by reference from your office, certain letters referred
to yon by the Director of the United States Geological Survey, as fol-
lows, to wit:
Four letters from C. H. Pitch, topographer in charge, dated respeo
tively, February 24, March 27, April 3, and April 6, 1897:
A letter from the Commissioner of Indian Affairs dated March 16,
1897:
Two letters from Oscar Jones, United States surveyor, dated respec-
tively March 7, and March 29, 1897:
A letter from W. S. Post, topographer, dated April 1, 1897:
Also two diagrams, showing "cut-oflfs" in the course of the Red river,
which is the boundary between the Indian Territory and the Scate of
Texas:
And I am requested to answer the following question: "Where the
Bed river, which constitutes a boundary of the State of Texas, has
changed its course, will the old bed of the stream remain the boundary,
or must the present channel be regarded as suchf ^
DECISIONS RELATING TO THE PUBLIC LANDS. 373
The diagrams show the locations of four cut-off's within a distance of
less than forty miles west of the boundary of the State of Arkansas.
The most easterly (marked C) is in T. 11 S., R. 27 E. ; and it transferred
in the year 1895, from the Territorial to the Texan side of the river, a
very considerable body of Indian land, in the shape of a pear with a
narrow neck or stem. The most westerly (called the " Watson cut-oflf"),
is in T. 7 S., R. 2 L E. ; and it transferred, probably in the year 1890, frova
the Texan to the Territorial side of the river a body of Texan land of
similar shape. The other two cut-offs (marked A. and B. respectively),
are situated in T. 8 S., R. 22 E., and T. 10 S., R. 25 E.; and both trans-
ferred in the year 1866, Texan land to the Territorial side of the river.
The letters before me show, that all of the cut-oft's were caused sud-
denly by Hoods and overflows of the waters of Red River; aided prob-
ably in one instance by a ditch which the occupants of the land had
cat across the narrow neck of the peninsula.
Texas was admitted into the Union by joint resolution of Congress
approved December 29, 1845 (9 Statutes 108), in accordance with a joiut
resolution approved March 1, 1845, (5 Statutes 797). At that time the
boundary between Texas and the United States was defined as follows:
The boundary line between the two countries, west of the Mississippi, shall begin
on the inilf of Mexico, at the mouth of the river Sabine, in the sea, contiuuinp^ north
along the western bank of that river, to the 32nd degree of latitude; thence, by a line
dae north, to the degree of latitude where it strikes the Rio Roxo of Natchitoches or
Red river; then following the course of the Rio Roxo westward to the degree of lon-
gitude 100 west from London and 23 from Washington ; then crossing the said Red
river, and running thence by a line due north to the river Arkansas ; thenoe follow-
iug the course oftiw souther i\ bank of the Arkansas, to its source in latitude 42 north ;
and thence by that parallel of latitude to the South Sea
All the islands in the Sabine, and the said Red and Arkansas rivers, throughout
the course thus described to belong to the United States. See treaty with Spain of
February 22, 1819 (8 Statutes 254-256), treaty with Mexico of April 5, 1832 (8 Stat-
utes 374), the convention with Mexico of April 21, 1836 (8 Statutes 464), and the con-
vention with Texas of October 13, 1838 (8 Statutes 511).
By the act of July 6, 1848, (9 Statutes 245), Congress voluntarily
ceded to Texas one half of Sabine Pass, one half of Sabine lake, and
one half of Sabine river from its mouth as far north as the thirty sec-
ond degree of north latitude. And in the year 1850, by agreement
between the United States and the State of Texas (9 Statutes 44G, and
1005), the boundaries west of the 100th meridian were changed. But
no change has been made in the boundary extending from the*94th to.
the 100th meridian following the course of Red river. I therefore
assume that the boundary between the Indian Territory and the State
of Texas, is the line of the middle of the main channel of Red river
as it meandered in 1845, ^hen Texas was annexed.
I am respectfully of opinion that a change in the current or main
channel of the river does not change or in any way affect the location
or position of the boundary line, as it lay upon the earth's surface
374 DECISIONS RELATING TO THE PUBLIC LANDS.
•
when established by the treaties. The river was only a land-mark.
The removal of a land mark will not change the line.
On November 11, 1856, Attorney General Galeb Gnshing famished
the Secretary of the Interior with his official opinion and advice
respecting the question now under consideration (8 Opinions of Attor-
ney General 175). After discussing the legal effect of changes happec-
ing by accretion — by gradual and insensible accession and abstraction
of mere particles — Mr. Gushing on page 177, said:
Baty on the other hand, if, deserting its original bed, the river forces for itself a
new channel in another direction, then the nation, through whose territory the riTer
thns breaks a way, snffers injnry by the loss of territory, greater than the benefit uf
retaining the natural river boundary, and that houndarg remains in (he middle of the
deserted river bed.
In the case of Missouri t?. Kentucky, (11 Wallace 395-401), decided
in December 1870, the supreme court of the United States, after recit-
ing that the middle of the bed of the main channel of the Mississiiipi
river was the ancient boundary between Kentucky and Missouri as
established by treaties, said:
If the river has subsequently tamed its coarse, and now rans east of the island,
the status of the parties to this controversy is not altered by it, for the ehanuel
which the river abandoned remains, as before, the boundary between the States, and
the island does not, in consequence of this action of the water, change its owner.
The forty first Congress recognized this rule of law, and legislated
accordingly. The boundaries of the States of Iowa and Nebraska and
the Territory of Dakota cornered, at the junction of the Big Sioux
river with the Missouri river. The middle of the Missouri wa« the
boundary line between Nebraska and Dakota. The river made a Ueud
or loop southward enclosing a peninsula, which was about 2^ miles
long and 23 chains and 60 links wide across it neck, and contained
890.12 acres. This peninsula belonged to Dakota. Sometime between
1867 and 1869, the river cut for itself across the neck, a new and luain
channel, and thus added (so to speak) to the Nebraska side, not only
the acres contained in the peninsula, but many more acres contained
in the abandoned be<l, which soon became dry and arable. In order to
end controversies and prevent litigation, Congress by the act of April
28, 1870, (16 Statutes 93) ceded to the State of Nebraska jurisdiction
over all the land which the river had cut oflf from the territory, and
establis&hed the middle of the new channel as the boundary between
the State and the Territory. (See Phillips r. Sioux City and Pacific
Kailroad Company, 22 L. D. 341.
There is no occasion for the Secretary of the Interior to pronounce
at this time a formal decision of the question propounded to me. Out
of the condition stated, many classes of questions will arise as the
settlement of the country progresses; questions concerning the political
jurisdiction of the authorities of the State and of the Territory respec-
tively; questions affecting the rights of inhabitants of the Territory
DECISIONS RELATING TO THE PUBLIC LANDS. 375
who owned land which abatted upon the river as it formerly ran;
qnestions affecting the rights of citizens of Texas similarly situated;
and questions affecting the rights of those citizens of Texas or inhab>
itants of the Territory, whose lands have been washed away, and either
totally or partially destroyed, by the new channel. All these questions
can be best determined as they arise, and after hearing the persons
interested in them.
I respectfully advise that the surveyors in the field should be
instructed to trace, survey, meander and mark with appropriate monu-
meuts, (1 ) the line of the middle of the main channel of the river as it
formerly ran; (2) the left bank of the old channel; and (3) the left bank
of the new channel; so that township maps may be made showing the
fractional subdivisions which will be made necessary by the closing of
the surveys on each one of said meandered lines, respectively: They
should also be instructed to find out, as far as practicable, the names
of all persons claiming lands abutting upon either channel, and the
size, location and shape of their respective claims; and to procure, by'
the affidavits of intelligent and reliable persons or otherwise, other
information as to facts and dates likely to be useful in determining any
of the questions that may hereafter arise for consideration by the
Secretary.
The Director of the Geological Survey, will give all necessary and
proper instructions to his subordinates.
Approved April 29, 1897.
0. N. Bliss, Secretary,
RAIIJSOAI> GRANT— INDEMNITY SELECTION SPECIFICATION OF IX>SS.>
l^GBTHEBN PACIFIC R. R. CO. V. FlEBIGEB.
On the rearrangement^ tract for tract, of indemnity selection lists, where the 1obs69
were originally designated in bulk, the assignment of a loss not included in the
original designation works an abandonment of the original selection, to the
extent of the tracts selected on account of the new basis.
Secretary Bliss to the Commissioner of the General Land Office, April 29^.
(W. V. D.) 1897. (F. W. 0.>
The Northern Pacific Railroad Oompany has appealed from your
office decision of January 4, 1895, holding for cancellation its indemnity^
selectionB covering lots 1 and 4 and the E. } of the NE. \ of Sec. 29, T^.
54 N., R. 19 W., Duluth land district, Minnesota, and permitting the^
homestead entry of Edward Fiebiger, covering said land, made Novem-
ber 4, 18879 to stand.
This tract is within the forty mile or second indemnity belt of the
grant for said company. Lots 1 and 4 and the NE. | of the NE. \ of
Baid Sec. 29, were included in the company's list of selections madd
376 DECISIONS BELATINO TO THE PUBLIC LANDS.
April 23, 1883 ; and the SE. ^ of the KE. i of said Sec. 29 was incladed
in the list of selections made October 17, 1883.
Both the company's lists were accompanied by a designation of losseSi
in bulk, eqaalling the selections, bat were not arranged tract for tract
with the selected lands.
On June 19, 1891, the company filed a re-arrangement of its list 8, in
which the same losses were used as those contained in the original list
of April 23, 1883, and arran^d tract for tract with the selected lands.
Ou April 11, 1893, the company filed a re-arrangement of its hst of
October 17, 1883; and in this re-arranged list the SW. J of the SE. i
of Sec. 19, T. 52 N., B. 13 W., is made the basis for the selection of the
SE. ^ of the NE. ^ of said Sec 29. This loss was not contained in ^e
original list of October 17, 1883, and must therefore be treated as a
new selection as of the date of its presentation (April 11, 1893).
So far as the same losses were used in the re-arranged lists as were
contained in the original lists, the original selection is not invalidated,
and the (company's rights date as of the filing of the original lists. See
O'Brien r. Northern Pacific R. R. Co. (22 L. D., 135); St. P., M. & M.
Ey. Co. V. Lambeck (Id., 202).
Fiebiger's entry having been made November 4^ 1887, the same might
be permitted to stand as to the SE. ^ of the KE. i of said Sec 29,
included in the selection of October 17, 1883, which was abandoned by
the company's re-arranged list of April 11, 1893. As to the balance of
the land covered by his entry, the company's selection of April 23, 1883,
takes x>f6cedeuce. His entry will therefore be canceled, unless, after
due notice, he elects to retain the said SE. i of the NE. ^.
Your office decision is accordingly modified.
TIMBER LANDS-SETTLEMENT CLAIM.
FEBST V. SOLBEBG.
Land covered by the bona fide settlement claim of a pre-emptor is not snbject to
timber land purchase ; and the applicant for the right of purchase cannot take
advantage of irregularities in the assertion of the pre-emption claim.
Secretary Bliss to the Commissioner of the General Land Office^ April 29^
(W. V. D.) 1897. (O.J. W.)
September 11, 1893, Felix Ferst filed timber and stone statement No.
1316 for NE. J of Sec. 23, T. 67 N., R. 20 W., Duluth, Minnesota.
June 20, 1893, Hans Solberg filed declaratory statement Fo. 5908,
and on January 11, 1894 filed a new declaratory statement, No. 6072,
for the E. J of NE. J, NE. i of SE. J and SW. J of NB. J of same sec-
tion. Notice of intention to take final proof issued to both parties,
August 10, 1894.
August 10-20, and 22, 1894, the proofs of both parties were sub-
mitted, and hearing had before the local officers. March 8, 1895, the
DECISIONS BELATING TO THE PUBLIC LANDS. 377
receiver filed his decision, rejecting the proof of Felix Ferst, and
approving the proof of Hans Solberg. On March 22, 1895, the register
filed his decision, rejecting the proof of Hans Solberg, and approving
the proof of Felix Ferst. Ferst appealed from the decision of the
receiver, and Solberg from that of the register. Ferst also filed a
motion to dismiss Solberg's appeal.
October 21, 1895, your office overruled the motiou to dismiss Solberg's
appeal, and passed ui>ou the case, affirming the decision of the receiver,
approved the final proof of Solberg and rejected the final proof of
Ferst, for the land covered by the filing of Solberg.
From this decision Ferst has ap[)ealed, upon the following grounds —
L Error in finding that 'Uhe evidence of the timber claimant and his witnesses
is very unsatisfactory indefinite and uncertain.'*
II. In holding that the timber claimant and his witnesses did not find all the
improvements claimed by the pre-emption claimant, and in not finding that a con-
siderable portion of said improvements if on the land, were made subsequent to the
inspection of timber claimant and his witnesses and subsequent to the initiation of
the contest.
III. In finding that the t'estimony does not show that the pre-emptor voted in
Dulnth twice after he established his alleged residence on the land; and in not find-
ing that the circumstances of his haviug voted once in said city was evidence
which, taken in connection with other proven laches of said claimant and contra-
dictions in his testimony, was sufficient to impeach his residence and good faith.
IV. In findiug that " the evidence establishes the good faith of the pre-emptor.'*
V. In finding that the land is chiefly valuable for agricultural purposes.
VI. In not affirming the decision of the register in rejecting the final proof of the
pre>emptor and awarding the land to the timber claimant and appellant herein.
The local officers having filed disagreeing opinions in the case, under
Bales 48 and 49 of Practice, your office properly overruled the motion
to dismiss the appeal of Solberg and considered the whole case.
The land in question became subject to entry by the filing of the plat
of survey at 9 o'clock on June 20, 1893. Solberg's application and affi-
davit were received by mail on that day, previous to 9 o'clock, and
placed of record. Tour office by letter '*G" of November 3, 1893,
directed the local officers to notify Solberg that his filing was illegal^
but that he would be permitted to make a second filing and that he
woQld not be affected by the requirement that his claim should be
placed of record within three nronths after the filing of the plat of sur-
vey, where the failure resulted from the erroneous action of the local
officers. Solberg was accordingly notified that he would be allowed
until January 15, 1894 to legalize his filing by making a n^w declara-
tory statement, which was filed January 11, 1894. l^o new affidavit of
form (4 102b) was then filed, and on August 20, 1894, at the time his
final proof was taken ho was allowed to make and file said affidavit
Yonr office held that the affidavit filed by Solberg with the illegal
<leclaratory statement, followed within a short time after notice of its
illegality by the second filing, was sufficient evidence of Solberg's quali-
licatiou to make the filing. The issue is not between settlers or between
378 DECISIONS RELATING TO THE PUBLIC LANDS.
rival applicauts to enter for homestead porpoeies, bat between a pre-
emption claimant who makes settlement on the land for homestead aud
agricaltural purposes, and an applicant to purchase the land, as land
unfit for agriculture and chiefly valuable for its timber, under the act
of June 3, 1878 (20 Stat., 89). A proviso to the act subordinates it to
any bona fide claim under any law of the United States, and to the
improvements of any bona fide settler. The land subject to sale as tim-
ber land must be uninhabited and without improvements. The proof
in this case shows that at the time of Ferst's application to purchase,
it was settled upon by Solberg, and was improved by him, and was not
subject to sale under the law. While the evidence is somewhat con-
fused as to the precise date of Solberg^s settlement, there is no doubt
but the settlement antedated Ferst's application to purchase, and that
the land was at that time improved. That it had some improvements
on it is apparent from Ferst's own testimony. I have caused an exami-
nation of the field notes of the survey of the township embracing the
land in question to be made. In the report of the surveyor, made July
5, 1892 (nearly a year prior to the date of the opening of those lands to
entry and settlement), at the end of his field notes, he gives a list of
the settlers whom he found in the township, and amongst others is the
name of Hans Solberg. He adds the memorandum: ^' These settlers
have good improvements." This circumstance is entitled to considera-
tion, with the evidence of the pre-emptor.
The evidence furnished by Solberg shows his improvements to be
worth about $300, and it indicates that his settlement was made with
the intention of making the land his permanent home. The def<H;t in
the declaratory statement filing of Solborg is not available to Ferst
He is not a settler, and can take no benefit from Solberg's failure to file
in three months after the filing of the plat of survey. It was permis-
sible for Solberg to perfect his filing at the time he offered his final
proof. (Ellen Barker, 4 L. D., 614). It is insisted that Solberg's resi-
dence on the land is cx>ntradicted and overcome by his admission that
he voted in Duluth in 1892. This is not a conclusive presumption as
was held in the case of the State of California r. Sevoy (9 L. D., 139).
This case is also authority for perfecting the filing by amendment.
There is in the record sufficient support for your office decision, and it
is affirmed.
DECISIONS RELATING TO THE PUBLIC LANDS. 379
BEPOBT OF SPECIAL AGENT— ATTORNEY.
Albebt H. Hobton.
An attorney in good standing before the Land Department is entitled to inspect
reports of a special agent on which final action has been taken by the General
Land Office adverse to the interests of his client.
Assigtant Attorney- General Van Devanter to the Secretary of the In-
terior. (P. J. O.)
I am iu receipt, by reference from the Hon. First Assistant Secretary
of the Interior, of a request from Albert H. Horton, asking that a
former order of the Commissioner of the General Land Office, refusing
to communicate to him, as attorney for J. P. Pomeroy, the specific
grounds of alleged frauds and irregularities of one W. E. Hill in mak-
ing homestead entries iu Kansas be modified.
Briefly stated, it appears that Hill, acting as guardian for minor
heirs of deceased soldiers, made quite a number of homestead entries
for said heirs, and, as made, transferred the land to Pomeroy. The
entries went to patent.
Upon an investigation by a special agent of the land office, the
several entries were reported to be fraudulent in their inception, for
reasons which are immaterial to this opinion.
It is ascertained from inquiry in the office of the Commissioner that
on this report his office was in the act of recommending the institution
of an action against Pomeroy to cancel these patents, when a request
was made that action be suspended to allow Pomeroy to investigate the
matter, and by letter of February 24, 1897, to Hon. Charles Curtis,
member of Congress from Kansas, action on the reports was *< suspended
thirty days within which Mr. Pomeroy may surrender the patents in
the cases," and, if no action was taken within that time, suit would be
instituted.
It appears that Mr. Horton, as attorney for Pomeroy, sent a request
to the Commissioner, asking that he ^^ be advised of the specific grounds
of irregularities and fraud in each case,'' and by letter of March 23,
1897, the Commissioner declined to furnish the information. He then
addressed a letter to the Hon. First Assistant Secretary of the Interior,
referring to the former correspondence, and asked that the Commis-
sioner's order be "changed or modified, so that, as attorney for Mr.
Pomeroy, I may have the information requested^ and may also have
sixty days additional time for further examination." This was referred
to the Commissioner for report, and by his letter of April 21, 1897, his
report was transmitted to the First Assistant Secretary, and by him
referred to me for an opinion, as before stated.
The question submitted to me is, whether the Commissioner should
famish the information on file in his office in regard to these entries.
380 DECISIONS RELATING TO T^E PUBLIC LANDS.
Tbe matter of allowing attorneys before the Department to inspect
the recordn of the Commissioner's office was fully discassed in the case
of W. H. Lamar (5 L. D., 400). It appears that Mr. Lamar applied for
permission to examine a record for the pur|)ose of determining whether
he would accept a retainer in the case, and the privilege was denied
him by the Commissioner; whereupon he appealed to the Department,
and it was decided that he had the right to do so. In discussing the
matter, Mr. First Assistant Secretary Muldrow said :
Attorneys have always been allowed by the courts to enter a special or limited
appearance, and it would Heem that attorneys practicing before this Department, in
good standing, ought to be allowed to inspect the records of your office, including
all papers upon which action has been taken affecting the rights of parties. Tbe
mere fact that a case is pending in one division of your office rather than in another
can make no difference in the principle. It ought not to be presumed that attoraevs
of good standing in this Department will disregard their obligations to be faithful
to the Department as well as to their clients.
No good reason is shown why an attorney practicing before this Department
should have any less privileges than would be accorded to any other reputable per-
son seeking to inspect the records of your office. While it must be conceded that a
large discretion should be given to yoar office, yet that discretion is a legal one and
should be exercised in accordance with the regulations of the Department. When,
therefore, any attorney practicing before this Department represents that he has
been applied to by a party in interest to appear for such party in any case pending
in your office, and that he desires to inspect the record of such case to learn the
nature thereof and ascertain the amount of fee to be charged for his services in
appearing for such party, such attorney should be allowed to inspect the record and
all papers upon which action has been taken by your office adverse to the interest of
such party.
It seems to me that this ruling can with propriety be applied to the
case at bar, so soon as it reaches the proper stage. It is evident in
the Lamar case that action had been taken against his client that was
adverse to his interest. After action has been taken by the Oommis-
siouer's office, such as ordering a hearing with the view of canceling
an entry, or recommending a suit to be brought to annul a patent,
there seems to be no substantial objection to allowing an inspection of
the records of the Commissioner's office. Before such final action has
been taken, the manifest impropriety of permitting the records to he
examined is clearly apparent, because until that time the record is
confidential, which may or may not on examination result in final
action adverse to the party, but thereafter the reports cease to be
privileged and confidential, so far as the interests of the parties afiected
thereby are concerned.
Applying this test to the case at bar, it would seem as if such final
action had not yet been taken by the Commissioner's office as to war-
rant the granting of the request of Mr. Horton. It is true the Com-
missioner had prepared a letter recommending the Secretary of tbe
Interior to request the Hon. Attorney General to bring suit to cancel
the patents, but that letter has not been formally transmitted to the
DECISIONS RELATING TO THE PUBLIC LANDS. 381
Secretary of the Interior for coDsideration, and until that is done, in
my judgment, such final action has not been taken as contemplated.
i am therefore of the opinion that, if the Commissioner of the Gen-
eral Land Office is still of the opinion that suit should be brought and
formally recommends it, then the matter would be in such condition as
would permit ^' an attorney in good standing before the Land Depart-
ment*' to inspect the record, but until that is done, the records should
be regarded as confidential.
Approved, April 30, 1897 :
C. N. Bliss,
Secretary.
RAILROAB GRAXT— IXDEMXrTY— ACT OF JUNE ««, 1874.
Obbgon and California E. R. Co.
An indemnity selection nnder the act of June 22, 1874, based on a reUnquishment,
necessary for tbe protection of entrymen, under the rulings then in force as to
the date when the rights of the company attached, shonld not be defeated by a
changed raling as to the attachment of rights under the grant, where the lands
so selected have been sold by the company, and the grant is not enlarged by the
approval of the selection.
Secretary Bliss to the Commissioner of the General Land Office^ April 29 ^
(W.V. D.) 1897. (F. W. C.)
The Oregon and California Kailroad Company has appealed from
yoor office decision of January 17, 1896, holding for cancellation a cer-
tain list of selections made March 14, 1877, under the provisions of the
act of June 22, 1874 (18 Stat., 194), covering lauds to the amount of
1081.74 acres within the Oregon City land district, Oregon.
On October 29, 1869, this company filed in your office a map showing
the definite location of its line of road from Portland to Jefferson, in
T. 10 S., R, 3 W.; the distance covered by said location being about
sixty-one miles. Said map was transmitted to this Department Novem-
ber 4, 1869, and returned with the approval of Secretary Cox January
29, 1870.
Section 2 of the act of July 25, 1866 (14 Stat., 239), making the grant
under which the company claims, after describing the extent of the
grant, provides, that upon filing
in the offlee of the Secretary of the Interior a map of the sui'vey of said railroad, or
any portion thereof, not less than sixty continaons miles from either terminus, the
Secretary of the Interior shall withdraw from sale public lands herein granted on
each side of said railroad, so far as located, and within the limits before specified.
It appears that in the case of Swift v. California and Oregon Kailroad
Company (2 Copps Land Laws 733), involving a consideration of the
grant in question, it was held that the right of the land grant company
attaches to the granted land ^^upon the filing of the map of survey of
its road ;^ it having then done all within its power to identify the land.
882 DECISIONS BELATING TO THE PUBLIC LAJfDS.
Under tbis rating the right of the company opiH)Site the lands in
question attached October 29, 1869, at which date, it api>ears from au
abstract furnished by your office, that five of the tracts relinquished
and made the bases for selections under the act of 1874, were free from
advei-se claims, to wit, the NE. J of Sec. 1, T. 4 S., R. 1 E.; the ^E. J
of Sec. 3, T. 4 S., R. 1 E. ; the SW. i of the NE. i and lots 2, 3 and 4,
Sec 7, T. 4 S., B. 4 E.; the NW. J of Sec. 7, T. 4 S,, E. 2 E.; and tbe
N. J of the NE. i of Sec. 27, T. 2 S., R. 4 E. Subsequently, and prior to
January 29, 1870, entries were allowed ui)on these lands, and upon tbe
request of your office the company relinquished in favor of those entries
under the provisions of the act of June 22, 1874 {supra)^ and on March
14, 1877, as before stated, made its selections now under consideration.
In the case of California and Oregon Railroad Company r. Piekard
(12 L. D., 133) it was held that the right of the company under tbe
grant of July 25, 18G6 (supra)^ does not attach until the map of definite
location has been accepted by the Secretary of the Interior, which id
the case under consideration was on January 29, 1870. At that date
the lands relinquished by the company were embraced in entries of
record, and for that reason your office decision appealed from holds the
lands relinquished were excepted from the company's grant; that its
relinquishment was unnecessary, and that no right was gained by its
selection under the act of June 22, 1874 (supra).
This act provide*
That ui the adjiutment of all railroad land grants, whether made directly to any
railroad company or to any State for railroad purposes, if any of the lands granted
be found in the possession of an actual settler whose entry or filing haa been allowed
under the pre-emption or homestead laws of the United States subsequent to tbo time
at which, by the decision of the land office, the right of said road waa declared to
have attached to such lands, the grantees, upon a proper relinquishment of tbe lands
so entered or flle«l for, shall be entitled to select an equal quantity of other lands iu
lieu thereof from any of the public lands not mineral and within the limits of the
grant not otherwise appropriated at the date of selection, to which they shall receire
title the same as though originally granted. And any such entries or filings thus
relieved from conflict may be perfected into complete title as if such lands had not
been granted: Proridedf That nothing herein contained shall in any manner be so
construed as to enlarge or extend any grant to any such railroad or to extend to landu
reser\-ed in any land grant made for railroad purposes: And provided further , That
this act shall not be construed so as in any manner to confirm or legalize any decision
or ruling of the Interior Department under which lands have been certified to any
railroad company when such lands have been entered by a i)re-emption or homestead
settler after the location of the line of the road and prior to the notice to tbe local
land office of the withdrawal of such lands from market.
From the recital above made it is apparent that under the ruling in
force at the time the company relinquished uiK)n the request of your
office, its rights were held to have attached on October 29, 1869; conse-
quently its rights were superior to those who entered after that date,
and following its relinquishment it made due selection under tbe act
above quoted.
DECISIONS RELATIKG TO THE PUBLIC LANDS. 383
This selection was made, as before stated, iu 1877, and remained
anacted upon until considered in tlie decision of your office appealed
from. In the mean time the company reports that it has sold part of the
lauds selected, and the ruling as to the time of the attachment of rights
has been changed. Under these circumstances it would seem that the
company's selection should be approved; esx)ecially as the grant is not
enlarged thereby. Should these selections fail, the company would
nevertheless be entitled to select other lands within its indemnity
limits.
This might not now be possible, for the indemnity withdrawal, which
was recognized in 1877 at the time of these selections, has been revoked
since 1887 and the lands within said limits disposed of as other public
lands.
As to the tracts selected in lieu of those before described, your office
decision is therefore reversed.
The remainder of the tracts relinquished and made the bases for the
selections under consideration, the abstract shows, were covered by
homestead entries both on October 20, 1860, and July 20, 1870, so that
the tracts were clearly excepted from the company's grant under either
ruling, and its relinquishment, as to said tracts, was unnecessary and
conferred no right of selection upon the company.
As to the tracts selected in lieu of these tracts, your office decision is
affirmed.
PRACTICE— NOTICE— AFFIDAVIT OF CONTEST— CORROBORATION.
Vincent r. Gibbs.
The Bales of Practice do not require that the notice of a hearing^ should be Berved
within the jurisdiction of the local office from which it is issued.
A notice of contest is sufficient if it substantially follows the affidavit of contest.
A motion to dismiss a contest for informality, in the affidavit of contest, and the
want of a corroboratory affidavit, may be properly overrale<l by the local office,
as its jurisdiction is not dependent upon the affidavit of contest, but upon the
service of notice.
Secretary Bliss to the Commissioner of the General Land Office^ April 29 j
(W. V. D.) 1897. (O. W. P.)
October 23, 1893, Ira L. Oibbs made homestead entry No. 2070 of the
SE. i of Sec. 25, T. 27 K, E. 13 W., Alva land district, Oklahoma,
On November 2, 1893, Thomas H. Vincent filed aflidavit of contest,
alleging, in substance, that he is qualified to make entry for said tract;
that at one o'clock and twelve minutes after noon of September 16,
1893, he settled on the land for the purpose of making it a home; and
that he was the first settler tliereon.
On October 15, 1894, a hearing was had, at which both parties were
present, in person and by counsel.
384 DECISIONS RELATING TO THE PUBLIC LANDS.
Beforo the testimony was sabmitted Oibbs' counsel appeared spe-
cially, and filed a motion to quasb the notice of contest, for the rea-
sons: (1) that the same was not served on Gibbs within the jurisdictioo
of the land office, at Alva, Oklahoma Territory; (2) does not correspond
with the allegations in the affidavit of contest; and (3) fails to show
that Vincent is entitled to enter the land.
This motion the local officers overruled, and Gibbs excepted.
Gibbs' counsel then filed a motion to dismiss the contest, for the rea-
sons (1) that the notice was not properly served, and (2) does not cor-
respond with the affidavit of contest; (3) that the affidavit of contest
does not show that Vincent is qualified to make entry; (4) that said
affidavit is not properly corroborated, in this, that the corroborating
affidavit does not show the date when signed, or that an oath had been
administered to the witness; and (5) because no return or service of
notice had been made to the local office.
Vincent then asked to have the officer before whom the affidavit was
made affix his signature to the jurat, which the local officers granted,
overruling Gibbs' objection thereto, and to which he excepted.
The local officers then overruled the motion to dismiss, and Gibbs
excepted.
On April 3, 1895, the local officers rendered a decision, finding that
Vincent's right to the land is superior to that of Gibbs, and recom-
mending that Gibbs' homestead entry be held subject to said right.
Gibbs appealed.
Your office affirmed the judgment of the local officers. Gibbs ap-
peals to the Department.
The motions to quash and to dismiss the contest were properly
overruled.
1. The rules of practice do not require that the notice of hearing
should be served within the jurisdiction of the register and receiver.
2. The objection that the notice of contest does not correspond with
the contest affidavit, and does not show that the contestant is qualified
to enter the land, if successful, is without force. The qualification of
the contestant is sufficiently set forth in his affidavit of contest, and
the allegation of priority of settlement in the notice of contest is sub-
stantially the same as the allegation in the affidavit of contest. BnleS
of practice, paragraph 6, only requires that the notice ^hall give the
name of the contestant, and briefly state the grounds and purpose of
the contest.
3. The objection to the affidavit of contest that it was not properly
corroborated, and to the action of the local officers in allowing tlie
notary to insert the date and affix his signature to the affidavit of con-
test, affords no ground for reversal of the decision of the local officers,
for the reason that an affidavit of contest, while provided for in the
rules of practice, is not essential; jurisdiction is obtained by service
of notice. Consequently, it is not necessary to consider the action of
DECISIONS RELATING TO THE PUBLIC LANDS. 385
the local officers in allowing the Dotiiry to insert the date and affix his
signature to the jurat.
The lust objection, that no return of service of notice had been made
to the local officers, is contradicted by the record.
I here being no error in the proceedings, and the evidence supporting
the concurring decisions of your office and the local officers in favor of
the contestant, your office decision is affirmed.
PRACTICE— CERTIOHARl— ADVERSE RIGHT.
Butler r. Kobinson.
Rule 85 of Practice operates as a supersedeas for the time specified therein, but is
not a limitation upon the power of the Secretary of the Interior to grant an
application for certiorari even though not filed within that time.
Delay in the application fur a writ of certiorari, and the allowance of an adverse
entry under the Commissioner's decision complained of, will not defeat the right
of the applicant to a decision on the merits of the case, where the rights of third
parties are not affected thereby, and the status of the adverse piirty is not due
to any neglect or delay on 'the part of the applicant, and where the entry of such
party is made with full notice of the applicant's rights in the premises.
SecreUiry Bliss to the Commissioner of the General Land Office^ April 29^
(W. V. D.) 1897. (E. B., Jr.)
On September 12, 1890, J. M. Bobinson made timber culture entry
No. 2912 for lots 1, 2, 3, 4, 5 and 6, of Sec* 8, T. 16, S., B. 1 W., S. B. M.,
Los Angeles, California, land district. On April 24, 1893, William J.
Batler initiated a contest against said eutry, wherein non-compliance
with the timber culture law generally, and specifically as to plowing
and cultivating during the first and second years after entry, were
charged. After hearing, the local office, on January 15, 1894, decided
the case in favor of the contestant. On March 5, 1895, your office,
finding among the papers transmitted by the local office no appeal filed
within the time allowed by the rules of practice, declared the decision
of the local office final as to the facts, under Bule 48 of Practice, can-
ieled the entry and closed the case.
Your office, having on June 12, 1895, denied Bobinson the right of
appeal from its previous decision, Bobinson, on December 12, 1895,
tiled an application for certiorari; which was granted by the Depart-
ment January 25, 1896 (22 L. D., 67). In aUowing the application ibr
certiorari, the Department held that Bobinson had filed an appeal in
time from the decision of the local office, and that the same had been
duly served upon Butler's attorney; and further, that —
it is plain upon the face of their decision that the local officers, in densest ignorance
of the demands of the timber culture law, found had faith on the part of the defend-
ant, and recommended the cancellation of his entry^ for not having done what the
law does not require him to do.
10671— VOL 24 ^25
386 DECISIONS RELATING TO THE PUBLIC LANDS.
Uiuler such circumatnnceH, tbe coutiugency having ariseu which is contemplated
in tho first clause of Rule 48 of Practice — gross irregularity being suggested od the
face of the papers — the decision of tbe loeal officers ought not to have been consid-
ered final as to tbe facts, even if the defendants htU\ not appealed.
On June 9, 1890, when the case came before the Department under
the writ, the only question considered was this; —
DoeH tbe evidence show non-compliance on the part of the entrymau with the timber
culture law as to plowing and cultivating during the first and second years after
entry, that is, during the years ended September 12, 1891, and 1892, respectively!
reviewing the evidence the Department said —
In reviewing the evidence the Department said —
The good faith of the entryman is not successfully impeached by the evidence.
On the contrary it is manifested by the quadruple quantity of land plowed the tint
year, and by planting trees two years earlier than the law requires, thrice the acre-
age required for the third year and five acres more than the law requires during tbe
entire four years ordinarily to be spent, according to the law, in the preparation ot
the ground and the planting of trees. That tbe soil was in condition for the piaDt-
ing of trees at once upon plowing, is explained by the fact that the tract had pre-
viously been in possession of other parties and cultivated by them.
And thereupon the decision of your office was reversed and you were
directed to cau(*el Butler's homestead entry, made March 23, 1895,
under your office decision, and to reinstate Kobinson's entry.
The case now comes again before the Department under an order,
dated December 16, 1896, entertaining a motion by Butler for a review
of the decision of June 9, 1896, upon his contention that Robinson's
application for certiorari was not only tiled out of time, but that, in the
meantime, the former had made homestead entry of the tract involved
in the exercise of his right as successful contestant under your office
decision, and that therefore certiorari ought not to have been allowed
nor the Department have considered the case thereunder, regardlesv*^ of
alleged laches by Kobinson in the matter of his said application.
The appeal by Robinson from the decision of the local office, which
the Department, as before stated, held to have been duly served and to
have been filed in time (March 1, 1894), was not received by your office
from the local office until May 2, 1895. Between March 1, and April
25, 1894, inclusive, several motions for review and re-hearing were filed
by Robinson and denied by the local office, as set out — except the
denial of April 25, 1894,— in the decision of January 25, 1896 (suj^ra).
On March 18, 1895, there was filed in the local office by Robinson
the following paper —
United States Lakd Office,
jLo8 Angeletj Calif.
William J. Butler )
r«. > Motion for Review & Appeal.
J. M. Robinson, )
To the Hon. Commissioner of the General Land Office,
Wiuhingion, D, C.
Comes now tbe defendant J. M. Robinson and moves the Hon. CommiasioBei of the
Oen'l Land Office for review and appeal from the decision of the Hon. Commissioner
DECISIONS RELATING TO THE PUBLIC LANDS. 387
of the Genl Land Offioe of Mftroh 5th; 1895, dismissing said cause and demauds inves-
tigation and review of same on the following grounds:
1st. That Commissioner erred hy reason of the law and the facts & the whole
tbereof.
2iid. That appeal was duly Aled in time as shown by the records and liles of office.
3rd. That if records do not show appeal in due form and in time, claimant charges
loss or abstraction of the same.
4th. Claimant avers the fact to be that appeal was written , copied and attached
to papers and forwarded to local land office and the same was forwarded within the
40 days allowed in such oases, affiant believes they were forwarded to the local office
about the last of February, 1894.
That this application is not made for delay bat in good faith that justice may be
done claimant.
.1. M. RoiiiNSOX.
Subscribed and sworn to before me this day of March, 1895.
(SKAL) P. P. Bruner,
Notary Public in and for San Diego Ca., Calif.
A copy of this paper was duly served on 8. S. Knowles, the local
attorney of Batler. On March 18, 1895, Bobinson also filed in the local
office final proof in the matter of his entry under the fifth proviso of
section 1 of the act of March 3, 1891 (26 Stat., 1095). On May 11, 1895,
the resiilent attorney of Eobinson filed, and duly served on Butler's
said attorney, an apx>eal from your office decision of March 5, 1895. In
said decision of June 12, 1895, your office, treating said paper as a
motion for review of its previous decision, considered the entire record
aud held the notice of Bobinson's appeal of March 1, 1894, from the
decision of the local office, not to have been duly served, denied what
it regarded as the motion for review, and declined to forward said
a])peal of May 11, 1895, on the ground that the case had been closed
'*under Rule 48 of Practice." On June 13, 1895, your office notified
Mr. Keigwin, the resident attorney of Robinson, that the motion for
review had been denied, but made no allusion to its action concerning
the appeal from its previous decision. Under date of July 27, 1895, the
local office reported that Robinson was duly notified, "by registered
mail on the 21st ultimo," of your office decision of June 12, 1895, and
had since taken no action. On September 11, 1895, your office, having
discoveired that it had failed to notify Mr. Keigwin of its refusal to for-
ward the appeal filed by him, in a letter (H) to the local office, after
briefiy reviewing the history (;f the case, said—
In view of your report, and as no further action has been taken before this office,
said decisions of this office are considered final and the case is finally closed and
timber cnltare entry No. 2912 remains canceled.
Of this letter finally closing the case, and of its refusal on June 12,
1895, to forward to the Department the appeal filed by him May 11,
1895, your office notified Mr. Keigwin on the day of its date.
Robinson's only explanation of his delay in applying for certiorari is
that it was due to his surprise.at the action of your office, to sickness, and
to inability to raise money to pay Mr. Keigwin to further prosecute the
388 PECI8I0NS RELATING TO THE PUBLIC LANDS.
case and to commanicate with the latter, by reason of his absence from
this city when the money had been raised, uutil about the middle of
November 1895.
The foregoing is the somewhat remarkable history of this case. It
appears therefrom that Robinson duly appealed from the local officers'
adverse decision of January 15, 189i, and that the paper filed by liim
on March 18, 1895, whether regarded as a motion for review of your
office decision of March 5, 1895, or as an appeal therefrom, was filed iD
time. Regarded as a motion for review, while pending said paper
stopped the running of time against the filing of an appeal (Rnlo 71^)
from the decision last mentioned, and so brought the appeal filed May
11, 1895, within the time allowed for appeal. Or, regarded as an appeal,
said paper was sufficient for the protection of the rights of Robiusoo.
It further appears that, as the Department held in its decision of June
9, 1890, Robinson had duly complied with the requirements of the tim-
ber culture law during the period covered by Butler's contest.
Had the appeal of Robinson, whether as of March 18, or May 11,
1895, come before the Department, as it should regularly have done. »
decision thereon, in the light of the events, must surely have been iu
his favor, resulting iu the cancellation of Butler's entry and the rein
statement of Robinson's entry, which is the action the Department ba>
actually directed. Should Robinson be now deprived of the fruits of bis
years of faithful compliance with the timber culture law, by means of a
wrongful judgment by your office and the entry based thereupon, simply
because, when he had repeatedly failed to secure justice in the regular
and ordinary way, he delayed for the considerable i^eriod shown by the
record to invoke the somewhat extraordinary and only remaining rem
edy of certiorari! Or will the ends of justice be more nearly attained
by adhering to the action heretofore directed by the Department?
These are the general questions which now confront the Department.
The contention of Butler's motion, hereinbefore stated, was urged
by him in a motion filed by him December 31, 1895, to dismiss Robin-
son's petition for certiorari, and was therefore before the Department
when certiorari was allowed, but it is not discussed in the decision of
January 25, 1896 (supra)^ which granted the petition. Rule 85 of Prac-
tice is invoked by Butler in support of the proposition that only twenty
days after the denial of the right of appeal by your office are allowed
within which to apply for certiorari. It is well settled that said rule
merely operates as a supersedeas for the time above indicated, and is
not a limitation upon the power of the Secretary to grant an applica-
tion for certiorari, even though not filed within that time (Dennian r.
Domenigoni, 18 L. D., 41 ; Henry D. Emerson, 20 L. D., 287).
The other branch of Butler's contention, namely, that his homestead
entry as successful contestant under your office decision of March 5,
1895, and the alleged laches of Robinson in delaying to apply for cer-
tiorari, should have couatituted a bar to the relief afforded Robinson by
DECISION'S RELATING TO THE PUBLIC LANDS. 389
the Department, is also not well grounded. In Denman r. Domeni-
goni, supra, in construing Eule 85 of Practice, the Department, in
connection with the holding therein, as hereinbefore indicated, said:
Rule 85 is a limitation on tLe time within which the Commissioner of the General
Land Office is required to suspend action on the case at issue^ and after the expira-
tion of that time, if writ of certiorari has not been applied for, yonr office might
take such action as would preclude the granting of the writ, hut where there is no
evidence that such action has been taken, I find no authority in the Rules of Practice
to deny the application.
And in Henry D. Emerson, supra, it was likewise said, that the rule
does not bar a party
from the right to invoke the supervisory authority of the Secretary at any time
prior to the execution of the judgmeut of the Commissioner.
Thejudgment of cancellation of Robinson's entry, and the allowance
of Butler's entry, were in no way brought about by Robinson, nor are
they connected with any laches on his part. This judgment and entry
both long antedated the denial of Robinson's right of appeal. They
were executed before neglect or omission of any kind in connection
with the application for certiorari is chargeable against Robinson. If
such judgment and entry could operate as a bar to certiorari in any
siu-h case, or to the invoking of the supervisory power of the Secretarj^
the injured party would be absolutely without remedy. This would be
a case of a wrong without a remedy, contrary to one of the fundamental
principles of jurisprudence. No action was taken by your office nor by
Bntler after the denial of Robinson's right of appeal which in any way
changed the relation of the parties or the legal aspectt of the case. No
right of an innocent third party is involved. The case is still between
the original parties litigant. Butler's only standing here at this time
is due to advantage he has taken of the unfortunate judgment of your
office, which upon an incomplete record and in ignorance of the true
status of the case, applied a rule which would not otherwise have been
applied. Butler, however, was not in ignorance of the true state of
the case. He knew of serious objections which might be urged to the
jadgment of your office and against his entry. He had notice of Rob-
inson's appeal of March 1, 1894, and the appeal or motion for review of
March 18, 1895, before he made his entry. He took large chances
ao^inst the maintenance of the integrity of his entry. If he thereafter
made impi^ovements upon the land, ns he alleges, it was in full view of
tlie risk he had taken, and he can not now complain if he is the losing
party. Robinson's appeal or motion for review of Marcli 18, 1895,
aloDe, should have been sufficient to cause the local offices to deny an
<'ntry of the land by Butler until the same had been finally disposed of.
The only foundation for the charge of laches against Robinson is the
allegation of Butler that he has brought under cultivation a few acres
of the land since the denial of Robinson's right of appeal. The house
and stable, or at any rate the house, which he alleges he has built
390 DECISIONS RELATING TO THE PUBLIC LANI>S.
tkereon, was erected before the time of sacb denial. The value of ^I
the improvements made by Butler on the land, he does not attempt to
show. Several parties make affidavit in behalf of Robinson that said
house is not worth to exceed (100, and that the new lands plowed or
cleared by Butler amount only to about two and one half acres. Bo
this as it may, however, I do not think Butler's improvements, in con
nection with the delay of Robinson in applying for certiorari, warrant
a judgment in favor of the former.
In view of the foregoing, and after very careful consideration of tbe
entire case, I am clearly of opinion that the ends of justice between
these parties require that the motion for review should be denied; and
it is so ordered.
CEKTiriCATBS OF L.OCATION-8PECIALi ACT OF JUNE «, 1894.
Wesley Montgomeey.
An application for the issuance of certificates of location under a special act of Con-
gress authorizing and requiring the Commissioner of the General Land Office to
permit the person named therein " to enter one hundred and sixty acres of pnh-
lio land subject to entry under the homestead law/' must be denied, trhert* the
act contains no provision in terms authorizing such action, and furnishes no basi»
for the exercise of discretionary power in that respect.
Secretary Bliss to the Commissioner of the General Land Office^ April >>/,
(W. V. D.) 1897. (C. J. G.)
The act of Congress approved June 6, 1894 (28 Stat., 987), entitled
"An Act for the relief of Wesley Montgomery," is as follows :
That the Commissioner of the General Land Office be, and he is hereby, anthorize<l
and required to permit Wesley Montgomery, of Adams County, State of Xebraeka. to
enter one hundred and sixty acres of public land subject to entry under the home-
stead law, not mineral nor in the actual occupation of any settler, in lieu of the
northeast quarter of section twenty-three, of township twenty-eight north, of range
fourteen west, in Iroquois county, Illinois, which land was entered by naid Wesley
Montgomery on February twentieth, eighteen hundred and seven tj'-four, under the
homestead lawn, in accordance with instructions of the Commissioner of the General
Land Office to the register and the receiver of the date of Angust ninth, eighteeu
hundred and seventy-three, the title to which land failed because of a prior dis)K>si-
tion of the same, which did not then appear upon the records of the Land Office:
Provided, hothever, That the said Wesley Montgomery shall not have made any other
entry of land of the United States under tbe homestead laws: And prorided furikr.
That a final certifioate and patent shall iHsne to tue said Wesley Montgomery n]>on
such entry as he may make hereunder without proof of residence and cultivation.
Under date of January 4, 189G, tbe said Montgomery ftletl in yonr
office an affidavit wherein he requests, after stating his qualifications
nnder said aet of Congress, that he be permitted, for the sake of greater
convenience and to avoid expense, to select and enter the land to which
he is entitled under the act, by a duly appointed agent or attorney.
He further requests, in order that he may have the full benefit of the
DECISIONS RELATING TO THE PUBLIC LANDS. 391
provisions of said act, that he be permitted to enter the said laud in
separate forty acre tracts, and that certificates be issaed by your office
authorizing him to make such entries in person or by a duly apix)inted
agent or attorney.
In the attorney's letter accompanying said affidavit it was contended
that, in view of the remedial nature of the said act of Congress it is
entitled to the broadest and most liberal application, ^^to the end that
the beneficiary may in a measure at least receive compensation for the
rights and proi)erty he was forced to relinquish through the acts of the
government agents." It was likewise contended that the Commissioner
of the General Land Office is vested with discretionary authority to
determine the manner in which the said act may be carried into effect.
In alleged support of the above contentions a number of grants made
under Indian treaties, or by acts of Congress, are cited as being sub-
stantially analogous to that made to Montgomery, ami under which
grants certificates or scrip were issued. Eeference is also made to a
number of departmental decisions authorizing the cancellation of scrip
of larger denomination and the reissue of same for smaller tracts.
In a letter dated March 20, 1896, your office declined to comply with
the i)etitioner'8 request. A motion for review of this decision was filed,
which was denied by your office on April 13, 1896.
An appeal has been filed in this Department.
In your office decision of March 20, 1896, it was held that the act of
June 6, 1894, supra^ contemplated an entry by Montgomery under the
homestead law ; that it was not the intention of the act to give him any
broader right to the land to be selected and entered thereunder, than
he had to the land on which he had settled and resided, with the excep-
tion that he was relieved from the conditions of said homestead law in
the matter of residence and cultivation.
On the other hand it is contended by the apx>ellant that the words
employed in the act, " subject to entry under the homestead law," refer
to the land to be entered, not to the right of entry, and were used sim-
ply to designate the character of the land granted j that they do not
refer to the manner of entry. Attention is also called to the fact that
the bill as at first presented contained the words, ''to enter, under the
homestead law." From this it is argued that the object of amending
the bill was to permit Montgomery to take one hundred and sixty acres
of land without any qualification as to how said land was to be entered.
While, as contended by the appellant, the only condition or restric-
tion contained in the act for his relief against the exercise by him of
the right granted, is that he '^ shall not have made any other entry of
land of the United States under the homestead laws," yet, at the same
time, the only privilege granted or exception made in his case from the
regalar homestead entryman, is that '^ a final certificate and patent
shall issue to said Montgomery upon such entry as he may make here-
under without proof of residence or cultivation." To accord the appel-
392 DECISIONS RELATING TO TUB PUBLIC LANDS.
laiit privileges not specifically granted by the act, simply because they
are not specifically forbidden, would be as unwarranted as to impose
certain requirements upon liim simply because tlie said act does not
specifically except liim therefrom. No authority can be derived from
the act of relief for the issuance of certificates of location or scrip, aod
the language of said act furnishes no basis for the exercise of discre-
tionary power in that regard. The act in my opinion provides for the
entry of one hundred and sixty acres of public land subject to entir
under the homestead law, the entryman only being excepted from certain
conditions enumerated in the provisos *to said act. This view would
seem to be substantiated in one of the said provisos wherein the words
"such entry'' are employed, those words evidently having reference to
the prospective entry provided for in the granting clause, and thns
contemplating only one entry thereunder.
In view of the conclusion herein reached it is unnecessary to con-
sider the cases cited by appellant, they not being deemed particularly
applicable to the case under consideration.
The real question involved in Montgomery's application is as to the
authority of your office, under the act, to issue certificates at all,
regardless of whether they are for forty acres or one hundred and sixty
acres. Hence, the re(iuest in the said appeal for the issuance of one
certificate must also be denied. There is no authority in the act of
relief for the issuance of certificates as requested, the party being
entitled according to the language of the act to land only, unless the
operation of said act is to be extended beyond its words, which, in view
of the fact that such construction is not necessary to render effective
the provisions of the act, would seem to be unwarranted.
Your office decision, to the extent of matters herein considered, is
hereby affirmed.
A.PPLICATTOX FOR SURVEY ERRONEOUS MEANDER.
N. F. Kelly.
An order may properly issue for the survey of a tract of land omitted from the orig-
inal survey through the erroneouH meander of a slongh instead of a river proper.
Secretary JUintt to the Commissioner of the General Land Office^ May j,
(W. V. D.) 1897. (W. A. E.)
By your office letter of March 16, 1897, was transmitted for depart-
mental action the ai)i)]ication of N. F. Kelly for the survey of a tract of
land on the St. Francis river, in section 11, T. 18 K., K. 8 E., 6th P. M.,
Missouri.
It appears from the application and the accompanying affidavits that
there is a tract of unsurveyed land containing about fifty-three acres in
the southeast quarter of said section 11, not subject to overflow, and fit
for agricultural purjwses j that there are trees thereon about one or two
DECISIONS BELATING TO THE PUBLIC LANDS. 393
hundred years old ; and that the configuration of either shore of the
main-land has not materially changed since the original survey of the
water front on the main-land in 1848, The affidavit of P. Kinsolving,
surveyor, shows that he has surveyed this land ; that it lies wholly on
the Missouri side of the river and is separated from the mainland by a
narrow slough, which, at the time of his survey, contained no water;
that the channel of the river is northwest of this land and is from thirty
to seventy-five yards wide and four to eight feet deep; and that the
United States deputy surveyor meandered the slough, instead of the
eastern shore of the river proper, thus omitting the land in question
from the official survey.
The land immediately adjoining said tract on the south and east is
owned by Kelly, the applicant, who alleges that until recently he
thought he owned the tract in question.
This case is similar to that of Home r. Smith (159 U. S., 40). In
tbat case it appeared that Home had received a patent for lot 7 of sec-
tion 23, and lots 1 and 2 of section 26, T. 29 S., R. 38 E., Tallahassee
meridian, Florida^ containing 170.42 acres according to the official plat
of survey. The official plat showed that sections 23 and 26 were frac-
tional sections bordering on the Indian river. On the plat a meander
line ran through the sections from north to south, the Indian river being
on the west thereof. It was shown, however, that a bayou had been
meandered instead of the river proper, and that between the bayou
and the river was a tract of nnsurveyed land containing about six
hundred acres.
It was held that notwithstanding the fact that the official plat
showed the Indian river to be the western boundary of the land
patented to Horno, the bayou was the actual boundary and the nnsur-
veyed land between the bayou and the river proper did not pass to him
under his patent.
I am of the opinion, under the showing made by Kelly and the ruling
of the supreme court in the above cited case, that the tract here
involved should be surveyed and disposed of as government lands, and
it is so ordered.
STJRVEYOIl GENERAI^MIXING CLAIM-SECTIOX 45« R. 8.
John 8. M. Neill.
A sarreyor-general, who orders and approves the survey of a miniDg claim, in dls-
qaalified as an applicaDt therefor nnder the provisions of section 452 R. S., and
the departmental regulations thereunder, while holding such office.
Secretary Bliss to the Commissioner of the General Land Office, May 3,
(W.Y.D.) 1897. ' (E.B.,Jr.)
By its decision of February 25, 1896, your office affirmed the decision
of the local office rejecting the application of John S. M. Neill oflFered
394 DECISIONS RELATING TO THE PUBLIC LANDS.
October 31, 1895, tor patent to the Gold Monntain lode claim, survey
No. 4653, Helena, Montana, land district, ou the gronnd that it had not
been satisfactorily shown that the land embraced in said claim was
known to contain a valuable mineral bearing vein or lode at date of
the application for patent to either the Cutler or the Samuel S. Richards
placer mining claims, mineral entries Nos. 130 and 791, respectively,
which were patented January 25, 1875, and January 31, 1883, respec-
tively, and conflicted with said lode claim throughout nearly its entire
area.
Yoor office further fonnd from the record in this case '^ that the order
of the survey No. 4653, the approval thereof, and the application for
patent thereon, were made by John S. M. Neill," and that such order,
approval,' and application, were made by him while he was United
States surveyor- general of Montana; and thereupon held that as sticli
surveyor-general he could not '* legally order or approve the survey of
his own mining claim, nor be allowed to file an application for patent
therefor," citing section 452 of the Bevised Statutes, and i*ase of Her-
bert McMicken et al. (11 L. D., 96) and circular instrnetious of Septem-
ber 15, 1890 (11 L. D., 348). From the decision of your office said fieili
appeals, assigning error as follows:
First. It was error to bold that the lode claim did not contain a valaable miuenl
bearing vein at date of application for patent to placers without giving applicant
an opportunity by hearing or otherwise, to demonstrate that fact.
Second. It was error to hold that a surveyor-general (the applicant in this case)
could not legally order or approve the survey of this mining claim from the reconl
l>re8ented in the abstract of title, and the additional evidence on file iu the Depart*
ment relative thereto.
Third. It was error to hold that the inhibition of Sec. 452 of the Bevised Statutes
is applicable to mineral lands.
The records of the Department show that John S. M. Neill was
appointed U. 8. surveyor-general of Montana May 28, 1894, and that
he still holds that office. Appellant admits that he is and has been
since the date last above mentioned, such surveyor-general. The recowl
in the case shows that the order for said survey was made by him May
7, 1895, that the survey was commenced thereunder May 20, and com-
pleted May 22, 1895, by U. S. deputy mineral surveyor George K. Eeeder,
and was approved by said Neill as said surveyor-general on August 10,
1895.
Section 452 Eevised Statutes reads —
The officers, clerks, and employees in the General Land Office are prohibited from
directly or indirectly purchasing or becoming interested in the purchase of an; of
the public laud ; and any person who violates this section shall forthwith be removed
from his office.
In construing this section in the case of Herbert McMicken et aL
(10 L. D., 97), involving certain timber land entries made by McMicken
and others while employees of the United States surveyor general's
DECISIONS RELATING TO THE PUBLIC LANDS. 395
office of the then TeiTitory of Washington, and therefore held for can-
cellation by your office, the Department held (syllabus) :
The disqnalifioation to enter public lands coutained in section 452 R. S., extends
to officers, clerks, and employees in any of the branches of the public service under
the control and supervision of the Commissioner of the General Land Office in the
discharge of his duties relating to the survey and sale of the public lands.
A timber land entry made by an employe in the office of the surveyor general of
the district in which the land is situated is illegal and must be canceled.
This decision the Department affirmed on review (11 L. D., 96), and
directed the formulation of a circular iu accordance with the con-
struction of law therein. Such circular, dated September 16, 1890, as
approved by the Department, is found at page 348 of 11 L. D. After
setting out the section of the Revised Statutes (452) under consider-
ation and referring to the decisions above cited, the circular concludes:
In accordance with said decision; all officers, clerks, and employes iu the offices of
the sun^eyors-general, the local land offices, and the General Land Office, or any per-
sons, wherever located, employed under the supervision of the Commissioner of the
General Land Office, are, during such employment, prohibited from entering, or
becoming interested, directly or indireotlv in any of the public lauds of the United
iitates.
It was clearly intended that the surveyors-general themselves should
come within the prohibition declared by said circular. The reasons
which bring the clerks and employes of the offices of the surveyors-
general under such prohibition operate with stronger force to include
tbe surveyor-general. For demonstration see sections 2223 to 2234,
inclusive, and section 2325, Kevised Statutes.
It is unnecessary to consider the question sought to be raised by
the first assignment of error. Section 452, as heretofore construed by
the Department, which construction I approve and reaffirm, required
that Keill's said application for patent should be rejected. The deci-
sion of your office is affirmed in accordance with the foregoing.
Francis Adkinson.
Motion for review of departmental decision of December 26, 1896, 23
L, D,, 590, denied by Secretary BUss, May 3, 1897.
396 DECISIONS RELATING TO THE PUBLIC LANDS.
CERTIFICATION OF LAXDS-ACT OF AUGUST 3, 1854.
Stokes v. Pensacola and (teobgia K. E. Co,
Under the act of Angast 3, 1854, a certification of lands to a State, on acconot of
a railroad grant m no bar to the sabseqiient disposition of said lands, if they
iu fact lie wholly outside of said grant, and hence are not of the character
granted.
Secretary Bliss to the Commissioner of the General Land Office^ May >.
(W. V. D.) 1897, (J. L. McC. =
Peter Y. Stokes has appealed from the decision of your office, dated
July 10, 1895, refusing to recommend that suit be instituted to set aside
the certification of fractional section 29, T. 6 N., R. 22 W., Montgom-
ery land district, Alabama, to the State of Florida for the benefit of the
Pensacola and Atlantic (now Pensacola and Georgia) Railroad Com-
pany.
How it came to pass that a tract in Alabama was certified to the
State of Florida is fully explained in your oftice decision appealed from,
and a recital of the facts relative thereto is not at this time necessary.
Stokes made homestead entry of the tract (together with the W. i of
the W. ^ of Sec. 20, adjoining) on June 13, 1892. How it came about
that the local officers allowed him to make entry of a tract that had
long before been certified for the benefit of a railroad company does not
clearly appear from the record before me.
There seems to be no doubt from the statements contained in your
decision appealed from, that the land in controversy was improvidently
and erroneously certified. But your office holds that, inasmuch as said
certification was made more than thirty years ago, and as the grant has
been adjusted by your office (in 1888), it is not proper to make demaud
upon the grantees for a reconveyance of the land, or to recommend that
suit be instituted for its recovery.
Stokes has appealed, setting forth the fact that the local officers at
Montgomery allowed him to make homestead entry of the land ; that he
has resided upon the same in good faith ; that he has S[)ent nearly all he
possessed in money, personal property and labor, together with the
labor of his family, in improving said lands; and that to dispossess him
would reduce him to destitution. A copy of the appeal was duly serve<i
upon the proi)er officer of the railroad company, who endorsed the same
as follows :
Service of this is herehy acknowledged this 30th day of November A. D. 1895; but
for the infomiation of the applicant I state that the Pensacola and Atlantic Railroad
Company sold this land on the 30th day of August, 1883, to Milligan ChalTee ^ Co.
(prior to the applicant's homentead entry), who should be notified.
Your office bases its refusal to recommend the institution of suit uiwii
the departmental decision in the matter of the Hannibal and St. Joseph
Kailroad Company ( 10 L. D., 610). I observe, however, what appears to
be a distinction between that case and the one now under consideratioiL
DECISIONS RELATING TO THE PUBLIC LANDS. 397
In that case the Departmeut held (see syllabus) :
Proceedings under the act of March 3, 1887, for the recovery of title to lands erro-
neoosly certified are not anthorized where, long prior to the passage of said act, the
grant had been declared by competent authority to be adjusted.
Such is not the fact iu the case at bar, where, as stated in said decision
of your office appealed from: ''It appears that the grant in question
was adjusted by this'' (your) "office iu 1888.'' Another difference not
without weight between the Hannibal and St. Joseph case and the case
at bar is that in the former (see page 111,) "No one is setting up claim
to any of the lands now discovered to have been erroneously certified."
Your office decision cites also the departmental decision in the case
of Houlton r. The Chicago, St. Paul, Minneapolis and Omaha Railway
Company (17 L. D., 437). In that case, however, the adjustment had
been formally declared by the Department to be closed. Moreover,
Houlton was merely an applicant to enter, and his application was
rejected by the local officers; while iu the case at bar tlie local officers
allowed Stokes to make entry of the land.
Under these circumstances, I am not inclined to accept the view
expressed by your office, that the Hannibal and St. Joseph case and the
Houlton case (supra) constitute precedents that should control the
action of the Department in the case now under consideration. In my
opinion, the grant for the benefit of the Pensacola and Georgia Bail-
road Company can not properly be considered as haying been finally
adjusted, and this Department still has jurisdiction to dispose of the
question here in issue.
The case at bar would appear to be one in which the act of Congress
approved August 3, 1854 (10 Stat., 346), may properly be applied. Said
act provides:
That in all cases where lands have been, or Hhall hereafter be, granted by any law
of Congress to any one of the several States and Territories; and where said law
does not convey the fee simple title of such lands, or require patents to be issued
therefor; the lists of such lands which have been or may hereafter be certified by
the Commissioner of the General Land Office, under the seal of said office, either as
originals, or copies of the originals or records, shall be regarded as conveying the
fee simple of all the lands embraced in such lists that are of the character contem-
plated by such act of Congress, and intended to be granted thereby ; but where lauds
embraced in such lists are not of the character embraced by such acts of Congress,
and are not intended to be granted thereby, said lists, so far as thes^ lauds are con-
cerued, shall be perfectly null and void, and no right, title, claim, or interest, shall
he conveyed thereby.
In the case at bar, fractional section 29, embraced in the list certified
to the State of Florida for the benefit of the Pensacola and Atlantic
Kailroad Company, being wholly outside the limits of the grant for the
benefit of said road, and not of the character intended to be granted
by Congress, said certification was perfectly null and void, and no
right, title, claim, or interest was conveyed thereby, and the action of
398 DECISIONS RELATING TO THE PUBLIC LANDS.
the land departmeDt in inclnding it within the lists certified was inef-
fectual. (Weeks v. Bridgman, 159 XT. 8., 541.)
In view of the said act of 1854, and of the decision of the supreme
court in the case cited, there would appear to be no necessity for suit
to set aside the certification in question for the reason that the same
was and is a void act, wholly inefiTectual to prevent the proper disposi-
tion of the land by this Department; and I am of the opinion thatupoQ
the showing made patent should issue to Stokes for the same. The
recommendation for suit as requested by him is therefore unnecessary,
and you will issue patent to him for the land upon proper showing as
to compliance with the law.
HOMESTEAD CONTEST-ABANDONMENT— FINAL PROOF.
Wilson v. Lefbeineb.
After the expiration of ftve years under a homestead en try a charge of abandonment"
and change of residence will not be entertained against the same, in the absence
of an allegation that the entryman failed to comply with the law as to residence
and cultivation during the statutory period.
A charge of failure to submit final proof within the statutory period of seven yean
f^om the date of the entry states no cause of action against an entryman that is
entitled to the additional year conferred by the act of July 26^ 18d4.
Secretary Bliss to the Commissioner of the General Land Office, May 3,
(W. V. D.) 1897. (0. J. W.)
July 31, 1888, Edward Lefreiner made homestead entry No. 11372 for
SW. i of SW. i, Sec. 26, W. i NW. J and NW. ^ SW. i, Sec. 35, T.
163 N., R. 56 W., Grand Forks, North Dakota.
On May 19, 1894, David Wilson filed contest charging that the entry-
man had abandoned the tract and changed his residence therefrom for
more than six months next prior to the date herein ; that said tract is
not settled upon and cultivated by said party as required by law; that
he sold his improvements on said land some time in November, 1893, to
one C. W. Andrews for a valuable consideration and Andrews has no
homestead entry right to use on said land, having already exhausted
the same, but is holding said improvements for the sole purpose of
speculation.
Hearing was had and the local officers found that the entryman had
abandoned the tract.
Your office by letter '' H " of February 2, 1896, advised the local
officers that said decision could not become final, for the reason that
the allegations in the contest affidavit were insufficient, and their
decision was reversed. On October 15, 1895, Wilson offered a second
affidavit of contest, which was refused by the local officers, for the
reason that the same failed to state a cause of action, there being no
allegation that the abandonment occurred before the expiration of fire
DECISIONS RELATING TO THE PUBLIC LANDS. 399
years from date of entry, and for the reason that the allegation that
the entryman )iad failed to offer final proof within seven years, from
date of entry was premature, the time within which final proof could
he offered not having expired.
From this decision Wilson appeiiled, and on January 9, 1896, your
office affirmed the local officers. Wilson lias made further appeal to
the Department. The only question presented is whether or not the
last affidavit offered states a cause of action. It charges that —
The entryman has wholly abandoned said tract and changed his residence there-
from for more than the past six months. Kits sold his improvements he hud upon
the above land to one C. W. Andrews, who ha» had them removed from the land, and
that said Edward Lefreiner has failed to offer final proof for above land within the
statutory period of seven years from date of his original homestead entry as required
bv law.
There is no allegation that the entryman had not complied with the
law as to residence and cultivation for the period of five years as pro-
vided in section 2291 E. 8. Compliance with this section authorizes
final proof after removal from the land. Lawrence r. Phillips (G L. I).,
140). Thomason v, Patterson (18 L. D., 241). As to the time in which
final proof must be offered, under the act of July 26, 1894 (28 Stat.,
123), he had eight years instead of seven within which to offer final
proof, and it is not alleged that the eight years have expired. Tiie
affidavit states no cause of action, and your office decision is afifirmed.
PRiVCTICE-MOTION FOR REVIE^V— NEAV CONTEST.
CAL.LICOTTE V. GEER (ON ReVIBW).
A caase of action ariaiDg after the bearing before tbe local ottice, and during tbe
pendency of appeal tberefrom, cannot be made tbe basis of a motion for tht;
review of tbe departmental decision rendered on tlie appealed case.
Secretary Bliss to the Commissioner of the General Land Office^ May .9,
(W. V. D.) 1897. (C. J. W.)
September 23, 1893, defendant M. W. Geer made homestead entry,
No. 607, at Perry, Oklahoma, and on same day, J. W. Callicotte filed
affidavit of contest against said entry, alleging prior settlement.
A hearing was had on September 23, 1895 and a decision rendered
by the local officers, in which the cancellation of the entry was recom-
mended.
Defendant appealed, and on September 18, 1895, your office affirmed
tbe decision of the local officers and held said entry for cancellation.
Defendant made further appeal, and on January 18, 1897 (24 L, D.,
135), your office decision was affirmed. Geer files a motion to reopen
tbe case, based on the alleged abandonment of the land by plaintiff
since the trial of the case in the local office. The case was considered
400 DECISIONS RELATING TO THE PUBLIC LANDS.
by your office on appeal from the decision of the local officers, on the
basis of the record of facts presented with the appeal. On appeal to
the Department, it was considered here under the same record of £Eu;ts.
The motion is based on facts alleged to have occurred since the
hearing, and which if they constitute a cause of action, constitute a
cause separate aful distinct from the one tried. A cause of action
arising after the hearing before the local officers and pending an
appeal, cannot be made the basis of a motion for review of the decision
rendered here on the appealed case. This is a necessary rule, and well
settled. Under it, the motion for review must be and is denied.
In this case, however, the decision itself provides for the protection
of defendant's rights in the event the plaintiff fails to exercise bis
right of entry. Your office decision, which was affirmed and is of
force, provides that plaintiff be allowed thirty days within which to
show his present qualifications and make entry of the land; and in
the event he does this, the entry will be canceled, but if he fails to do
so, defendant's entry will remain intact.
This affords him all the protection to which ho is entitled as the next
settler, in order of time, on the tract involved.
PKACrriCE-MOTION FOR REVIEW-INTERL.OC:iTTORT ORDER.
Lee r. KuHLMAN.
There is uo aatliority in the rale^i of practice for the review of an order of the
Secretary of the Interior directing a hearing. A revocation of Huch order should
be Bought through an application to the supervisory authority of the Secretary.
Tht" couviction of a person on a charge of i)erjury committed in a case where another
, party is an applicant for land, and the issue is ^'soonerism/' and sarh person
testifies that neither he, nor Buch applicant, were in the territory within the
prohibited period, is not necessarily conclusive as to such person's qualiticatiou.
thoagh affecting his credibility as a witness.
Secretary Bliss to the Commissioner of the General Land Offi^, May 5,
(W. V. D.) 1897. (A. E.) (G. B. G.)
On February 20, 1897, H. George Knhliuan, one of the parties to the
above entitled cause, filed in this Department a petition for re-review
of departmental decision, dated November 12, 1890, ordering a hearing
to determine whether Lee was a settler upon the land in controversy
on May 25, 1893. The land involved is the SE. i of Sec. 4, T. 11 >..
R. 3 W., Guthrie, Oklahoma.
A motion for review of said decision of November 12, 1896, was
denied by the Department on December 26, 1896, on the ground that
said decision was interlocutory in character and therefore not review-
able.
It is now nrged that this was error aud it is further contended by
DECISIONS RELATING TO THE PUBLIC LANDS. 401
the petitioner that Sobert J. Lee was convicted of perjury in the
district court in and for Oklahoma county, Oklahoma Territory, for
swearing to facts necessary to make him a qualified entryman for land
in the Territory of Oklahoma : That therefore the Department should
accept such conclusion as a final finding that Lee was a << sooner'' and
not qualified to make entry of the laud in controversy, even should the
evidence at the hearing to be held show that he was a settler upon
the land when Kuhlman filed the relinquishment of Couch.
To the first proposition the Department after further and full con-
sideration of the matter adheres. There is no authority in the rules of
practice for review of an order of the Secretary of the Interior direct-
ing a hearing. It is true that by virtue of the supervisory authority
with which that officer is clothed by law, such showing might be made
as would induce him to revoke such an order, but no such showing is
here made.
The second contention may be treated as alleged reasons why the
ruling of the Department in the matter of the aforesaid interlocutory
order was erroneous.
These reasons have been carefully considered and they do not afibrd
a proper basis for the intervention of supervisory authority.
The copy of indictment filed by the petitioner, Kuhlman, shows that
Lee was charged with having committed perjury at a hearing before
the local office, held July 1, 1892, in the case of Aaron B. Jones v.
Ernest L. Lawrence. The indictment substantially charged that Lee
falsely swore that Lawrence and he (Lee) were not in the Territory
during the prohibited period. On this indictment Lee was convicted.
At the hearing at the local office, at which the perjury was alleged to
have been committed, the qualifications of Lawrence, and not Lee,
were in issue.
As to whether a person claiming land has entered the Territory dur-
ing the period prohibited so as to disqualify him from making entry, is
a question which is properly determinable by the Department, and
even though Lee were convicted in that case, such conviction would
not necessarily disqualify him from making entry in this case.
The judgment of the court in this matter is not conclusive, and being
persuasive merely would go to Lee's credibility as a witness and can be
brought to the notice of the local officers at the hearing.
It may be that Lee has not exhausted his remedy in the criminal
court on the indictment against him for perjury. Or it maybe that he
has been confined in the penitentiary in execution of the conviction
and judgment, and in this latter event a question of abandonment as a
matter of law would arise which can not now be discussed in view of
the uncertainty of the record.
The petition is denied and the order contained in the decision of
November 12, 1896, together with the instructions contained in the
decision^ will be carried out.
10671— VOL 24 26
402 DECISIONS RELATING TO THE PUBLIC LANDS.
PRACTICE-CONSOLIDATED CASES^ RE VIEW— APPEAL.
BULLARD V. PRBSOOTT.
Where two or more caees, involving the same traot of land, have been oonsolidated
and considered together, notice of appeals from, or motions for review of, the
decision rendered must be served npon all parties in interest.
Secretary Bliss to the Commissioner of the General Land Office^ May 3,
(W. V. D.) 1897. (R. W. H.)
I have considered the appeal of Onnsbee W. Bullard from your office
decision of January 27, 18d6. This decision rests upon the cases of
B. D. Prescott v. The Heirs of G^risre 8. Bidwell, deceased, and Orins-
bee W. Bollard v. R. D. Prescott and The Heirs of George 8. Bidwell,
deceased, which came up to your office separately, but were consoli-
dated and considered together. Said decision sustained the contest of
Prescott, dismissed that of Bullard, and held for cancellation George S.
Bidwell's timber-culture entry. No. 1334, for the NW. J of Sec. 9, Tp.
101, R. 61 W., MitcheU, South Dakota.
BuUard and the heirs of Bidwell were notified of said decision and
of their right of appeal.
Notwithstanding the consolidation of the cases by your office decision,
the parties whose interests were adversely affected failed to take notice
of such consolidation in their subsequent proceedings.
Frank A. Bidwell, a son of George S. Bidwell, one of the heirs,
assuming to act for said heirs, filed a motion for a review of your said
office decision, but served no notice of said motion upon Bullard.
Bullard appealed from your said decision, but served no notice of his
appeal upon the heirs of George 8. Bidwell.
It ftirther appears that, before Bnllard's appeal came before the
Department for consideration, your office — acting upon Bidwell's motion
for review — by its decision of April 22, 1896, had reviewed, reversed
and vacated its said decision of January 27, 1896.
In the case of Gray v. Ward et .aL (5 L. D., 410), it is held :
Where there are several parties to a sait pending in year office, and a final decision
has been rendered adverse to the rights of two or more of the parties to the salt, the
filing of an appeal by one of the parties will not preclude the hearing of a motion for
a review by another party to the record asking a reconsideration of the decision so
far as the same may affect his rights.
But in the case just cited there was no failure on the part of the
party appealing or the party asking a review to serve the proper ncitice
upon all parties to the suit.
Our Rules of Practice require " due notice '^ to the opposite party of
motions for review, as well as of appeals. (Eules 76 and 93.) Where
two or more cases, involving the same tract of land, have been consoli-
dated and considered together, notice of appeals from, or motions for
review of, the decision rendered must be served upon all parties ia
interest.
DECISIONS BBLATING TO THE PUBLIC LANDS. 403
To«ir office was without jarisdiction to act upon F. A. Bidwell's
motiou for review of its decision of January 27, 1896, in the absence of
notice to BuUard, a party in interest; and yoar sabseqnent decision of
April 22, 1896, is hereby declared void and of no effect.
The appeal of Ballard — ^notice of which was not served upon the heirs
of Bidwell^ the entryman — is dismissed.
The parties whose interests are adversely affected by yoar office
decision of January 27, 1896, will be allowed to proceed by motion for
review, appeal, or otherwise, as they may elect, upon due notice to all
parties in interest, as if your said decision of April 22, 1896, had never
been rendered.
STONE LAND-PLACER LOCATION— APPLICATION.
Hatden V. Jamison.
Prior to the paosage of the act of Augnst 4, 1892, there was no authority to locate
and pnrchaee lands chiefly ralnahle for building stone under the placer mining
laws.
Secretary Bliss to the Commissioner of the General Land Officey May 5,
(W. V. D.) 1897. . (0. J. W.)
This case involves the SW. \ of Sec. 6, T. 3 N., B. 70 W., Denver
land district, Colorado.
The record shows that on the 24th day of September, 1889, Thomas
Jamison made homestead entry for the above described tract.
On the 18th of September, 1889, Benjamin Hayden, the contestant-
appellant, with others, made a placer mining location for one hnndred
and twenty acres of the land atterwards entered by Jamison, and on
the 10th of January, 1890, having purchased the interest of the other
locators, he applied to file his mineral application therefor. This appli-
cation was rejected on account of the prior allowance of the homestead
entry of Jamison; whereupon the mineral claimant filed a protest
against the entry of the defendant-respondent, alleging that the land
was more valuable for mining than for agricultural purposes and that
the entryman had failed to comply with the law as to settlement and
improvements.
A hearing having been had on the issues thus joined, the local offi-
cers dismissed the contest; upon appeal your office decision of Kovem-
ber 4, 1890, was rendered wherein you reversed the action of the local
ofiicers and, after going into the merits of the case, found as a fact
that the land was more valuable for its minerals, and held the home-
stead entry for cancellation.
September 8, 1892, the Department, on appeal by Jamison, affirmed
the action of your office (16 L. D., 276).
March 7, 1893, on review, the former decision was adhered to, but on
June 21, 1893 (16 L. D., 537), the case then being before the Depart-
404 DECISIONS BELATINa TO THE PUBLIC LANDS.
ment ax>oii motion for re-review, reversed its former action and ordered
a hearing to determine
the character of the land, its capacity for agriciiltare and the natare, valne and
extent of all deposits of a stone or mineral character fonnd thereon, and re-a^jndi-
cate the question in the light of the evidence thus obtained.
This course was .pursued because of the allegation of the presence of
valuable deposits other than building stone, as gypsum and fire day,
and on account of the value of the land ((300,000) as shown in the last
mentioned decision of the Department.
A new hearing having been had in pursuance of the above order of
the Department on the 21st of April, 1894, the local officers rendered
their decision wherein they recommended the dismissal of the contest.
On the 8th of October, 1894, your office decision affirmed the action
of the local officers and further appeal by the contestant-appellant
brings the case before the Departmeut.
An examination has been made of the voluminous record in this
case. It is shown that the chief value of the land is for red sand stone
suitable for building purposes, paving, and curb stones. The attemi)t
to show gypsum, limestone, or a deposit of fire clay, is not supi>orted
by the evidence.
It appears that Jamison, the «ntryman, has built a frame house and
stone barn on the land. He has ploughed some, but not much, owing
to the character of the land, and has done some fencing and dug two
wells. It is further shown by the evideuce that the land has some
value for grazing purposes and some timber.
The various applications for this tract were made prior to the pas-
sage of the act of August 4, 1892, providing for the disposition of lands
chiefly valuable for building stone under the placer mining law, and
therefore, the mineral claimant can secure no rights by reason of that
act, but his rights must be adjudicated by the law as it stood at the
time these claims were initiated.
In the case of Simon Kandolph (23 L. D., 329), it was held that prior
to the passage of the act of August 4, 1892 (27 Stat., 348), there was uo
authority to locate and purchase lands chiefly valuable for building
stone under the placer mining laws, and that under the provisions of
section one of said act, no rights are secured prior to application to
enter, and if at such time the lauds are not subject to entry the claim
under said act must be rejected. On review (23 L. D., 516) this deci-
sion was vacated, and another decision substituted therefor, based on
a changed status of the facts, but the legal principles announced in
the flrst decision were not reversed. Randolph had discovered, located
and surveyed a valuable quarry of building stone, and after location,
made application to purchase, and tendered the purchase money. This
application to purchase and tender of the purchase money was made
June 29, 1893, and therefore after the act of August 4, 1892, was opera-
tive. His claim was rejected in the decision of October 3, 1896, for
PfiCISIOKS RELATING TO THE PUBLIC LANDS. 405
the reason that the land was in reservation and not sabject to entry at
the time of his application. The application of Randolph was still
pending when the reservation ceased, and the question being between
Bandolph and the government alone, it was held in said last decision
that Randolph should be allowed to perfect his title by purchase and
entry under the provisions of said act of August 4, 1892. The rule was
adhered to, as announced in letter of instructions (23 L. D., 322), that
under the act of August 4, 1892, no right attaches in favor of the
entryman until he makes application to enter. In the present case
Jamison had a homestead entry of *record on the 24th of September,
1889, before Hayden filed his mineral application and his priority of
right is unaffected, by the subsequent application of Hayden — ^he hav-
ing fftiled to show that the land was in fact mineral in character.
Hayden initiated no right under the act of August 4, 1892, by filing his
mineral application January 10, 1890.
The decision appealed from is therefore affirmed.
TOTVN LOTS-SALE AT THE TOTVNSITE.
Basin City.
In the Interest of the goyemment, and intending parchasers, a sale of town lots may
properly take place at the townsite, nnder the personal charge of the local
officers.
Secretary Bliss to the Commissioner of the General Land Office^ May 5^
(W. V. D.) 1897. (P. J. 0.)
I am in receipt of your letter ("G") of May 4, 1897, in relation to the
public sale of lots in the town of Basin City, Wyoming.
It appears from your said letter that the residents of Basin City have
complied with the requirements of the statute in regard to securing a
townsite on the E. i of the NW. J and the W. ^ of the NE. i of Sec. 21,
Tp. 51 K, R. 93 W., 6th P. M., and notice has been published of a
pul)lic sale of lots in said townsite, to take place at the local office at
Buffalo, Wyoming, July 24, 1897.
It appears that your office is in receipt of a petition from the resi-
dents and lot claimants in Basin City, representing that it will be of
material benefit to tbe government and a great a<;commodation to the
people interested to have the sale take place in Basin City, and their
prayer is that this may be done. The register and receiver forwarded
the x>etition with the recommendation that the request be granted.
In your said office letter it is said :
I believe that the iuterests of the government and of the people of Basin City
'woold be best protected and snbserved by holding the sale at the townsite as peti-
tioned for; bnt I think the authority of law for ordering the local officers away
from their ofiQce to make snch a sale is doabtful, and I have concluded to snbmit
the matter for your instructions.
406 DECISIONS RELiLTINO TO THE PUBLIC LANDS.
It has been the practice of this office to order registers and receivers to hold pnblio
•ales of lots within townsites at the townsites when in its discreatiou it was found
best to subserve the interests of the parties concerned. In the c^ise of Pagosa Springs
townsite, in Colorado, made under sections 2380-81 of the Revised Statutes, by letter
of November 19, 1884, Assistant Commissioner Harrison directed the local offieen st
Durango, Colorado, to proceed to the townsite to hold a sale of the lots; also, on
July 27, 1893, Commissioner Lamorenx, with the approval of Acting Secretary Sims,
gave like directions to the local officers at Seattle, Washington, in the case of the
townsite of Port Angeles, Washington, made under said sections 2380-81 of the
Revised Statutes.
I concur in the opinion that the interests of all concernetl in this sale
-will be best subserved by having the sale on the townsite, and that it
would be a matter of great expense and inconvenience to intending
purchasers to be compelled to go to the local office, with no cort^espond-
ing benefit to either them or the government.
You are therefore directed to instruct the local officers to have the
sale of these lots take place at the townsite, and for this purpose they
will be permitted to go to Basin City and personally conduct the same.
For the purpose of complying with the law in regard to the publisbed
notice of the sale, you will take such action as may be deemed advisable
in contemplation of this order.
RAILKOAD L.AXDS-CONTESTANT— SECTION 3, ACT OF SEPTEMBER «9,
1890.
Patton r. Glaussen.
Ko right is acquired by a contest against an entry of lands reserved on account of a
railroad grant, that will defeat the right of the en try man, who is in possession
as a licensee, to purchase the land under the provisions of section 3, act of Sep-
tember 29; 1890, and the amendatory act of January 23, 1896.
Secretary Bliss to the Commissioner of the General Land Ojfuse^ May 5,
(W. Y. D.) 1897. (F. W. C.)
Ouna A. Glaussen has appealed from your office decision of October
12, 1896, sustaining the action of the local officers in rejecting his appli-
cation to purchase, under the provisions of the acts of September 20,
1890 (26 Stat., 496), and January 23, 1896 (29 Stat., 4), the S. i of the
NW. i, the NW. i of the SW. J and the SW. J of the NB. i of Sec. 1,
T. 3 K, K. 17 E., Vancouver land district, Washington.
It appears that this tract is within the limits of the withdrawal of
August 13, 1870, upon the filing of the map of general route of the
main line of the Northern Pacific Railroad, opposite the unconstmcted
portion of the road between Wallula, Washington, and Portland, Ore-
gon. It is also within the fifty-mile or indemnity limits as adju6te<l to
the line of definite location of the branch line of said road across the
Cascade mountains.
Although the portion of the road between Wallula and Portland was
not constructed, the reservation made on account of the grant ecu-
tinned until the passage of the forfeiture act of September 29, }890
DECISIONS RELATING TO THE PUBLIC LANDS. 407
(supra). Xotwitlistandiug this reservation, it appears that tlie local
officers, on Xoyember 25, 1887, permitted Glaussen to make homestead
entry of the land, and, on October 19, 1889, Elwood F. Pattou initiated
a contest against said entry, alleging that Glaassen had never estab-
lished a residence upon the land.
It must be apparent from what has been said that the allowance of
the entry by Glaussen was in violation of law, and that the contest by
Patton shonld never have been permitted to proceed to hearing; but
hearing was had upon said contest and the case prosecuted by appeal
to this Department, resulting in departmental decision of June 13,
1896 (not reported), in which your office decision holding for cancella-
tion Claussen's entry upon said contest was affirmed.
XJx)on the promulgation of said decision Glaussen tendered his appli-
cation to purchase the land under the provisions of the act of Septem-
ber 29, 1890 {8upra)y and of January 23, 1896 (^upra), and in support
thereof alleged that he was in possession of the land and had been
since 1879, under a contract or a license from the Northern Pacific
Eailroad Gompany, and that the entire tract was ander fence and
otherwise improved.
Your office decision appealed from holds that this application comes
too late, the right of Patton as successful contestant having inter-
vened. The application to purchase was therefore held subject to the
exercise of the preference right by Patton j from which action Glaussen
has appealed to this Department.
After a carelul review of the matter I must reverse your office
decision. As before stated, on the showing made Glaussen has been in
the iK)S8es8ion of this tract since 1879 under a license or contract from
the railroad company. The action of the local officers in holding the
tract subject to entry, as it did in 1887, evidently induced Glaussen to
assert a homestead right in order to protect himself in his possession.
It appears that as early as February, 1890, he inquired of your office
as to the status of his entry and was informed, by your office letter
("F") of March 11, 1890, that his entry had been improperly allowed
and was held suspended awaiting congressional action in the matter of
the forfeiture of the company's grant for failure to build its road.
The entry having been allowed in violation of the reservation on
account of the grant, was not subject to the contest of Patton insti-
tuted in 1889, and he did not succeed to any right by reason of the
prosecution of that contest. He has, therefore, no such right as would
bar the assertion of the right to purchase under the provisions of the
acts before referred to.
The act of January 23, 1896 {supra) ^ amended the act of September
29, 1890, and extended the time of purchase to January 1, 1897. It
provided also
that actaal residence upon the land by persons claiming the right to purchase the
same shaU not be required where such lands have been fenced, cultivated, or other-
wise improved by such claimant, etc.
408 DECISIONS KELATINQ TO THE PUBLIC LANDS.
Your office seems to have considered the showing made iu sapport of
Glaussen's application as safficient, in the absence of an adverse right
that might bar the purchase, because it is held in said decision that
^^in the event that said Patton fails to enter the land you will allow
Olaussen to perfect his application.'^
Having disposed of the alleged superior right of Patton, the record
is herewith returned with direction that Glaussen be allowed to com-
plete purchase of this laud as applied for.
APPLICATION TO ENTER— PREFERENCE RIGHT.
John W. Kobba.
An applieation of a third party to enter land embraced within a judgment of can-
cellation, rendered by the Department, should be received and held to await
action ou the part of the suoceBsful contestant ; and if the preferred right of
the said contestant is subsequently waived, the application to enter, so held in
abeyance, is entitled to precedence as against other claims arising snbseqoently
thereto.
Secretary Bliss to the Commissioner of the General Land Office^ May 5,
(W. V. D.) 1897. (O. J. G.)
The land involved in this case is the N£. i of Sec 32, T. 43 K, B. 3
E., Wausan land district, Wisconsin.
On October 11, 1895, the Department affirmed a decision of jonr
office holding for cancellation the homestead entry of Marye Korba for
the above described land. This action was taken upon a contest
brought by one Lewis F. Larson, charging abandonment, that case
being closed by your office on February 15, 1896.
On November 26, 1895, John W. Korba filed an application to make
homestead entry of said land, which was rejected by the local office ibr
the reason that said land was already covered by the entry of Marye
Korba, and for the further reason that according to the evidence the
applicant had already had the benefit of the homestead law.
Korba appealed, and under date of February 27, 1896, your office
dismissed the said appeal because of failure to serve the same ou the
** opposite party."
On February 21, 1896, Lewis F. Larson relinquished his preference
right of entry, and ou February 24, 1896, John llasmussou filed home-
stead application for the laud iu question.
John W. Korba has appealed to this Department, contending that it
was not necessary to serve his appeal upon any one; that
when his homestead application was preaented, to wit : on November 26, 1895, the
previous entry of Marye Korba had, on April 18, 1894, been held for oanoellatioo,
wbioh decision had been affirmed by the Secretary on October 11, 1895, so that at
date of appeUant's application his mother's entry had been already canceled m con-
templation of law;
DECISIONS RELATING TO THE PUBLIC LANDS. 409
and that it was error not to hold that appellant was entitled to enter
at least forty acres under section six of the act of March 2, 1889, his
first entry having been made prior to that date and for only three legal
subdivisions.
In sapx>ort of the second specification above set out, the appellant
cites the case of Henry Ganger (10 L. D., 221), and numerous others in
line with that case.
In the case of McDonald et al. v, Hartman et al. (19 L. D., 547) it was
held that —
A judgment of cancellation takes effect aH of the date rendered, and the land
released thereby f^om appropriation becomes subject to entry as of such date, with-
oat regard to the time when such judgment is noted of record in the local office.
Under date of January 30, 1897, in the case of Cowles v. Huff et al,
(24 L. D., 81), the Department overruled the doctrine announced in the
case of Henry Ganger (supra). It is now held —
If during the time accorded a successful contestant to make entry of the land
inTolved an application or applications to enter should be made by a stranger to the
record, such application or applications will be received and the time of presenta-
tion noted thereon, but held to await the action of the contestant, and should such
contestant fail to exercise his preference right, or duly waive it, then such applica-
tion or applications must be acted upon and disposed of in accordance with law and
the rulings of the Department.
As the application of John W. Korba was filed after the judgment
of cancellation was rendered by the Department in the case of Lewis F.
Larson v. Marye Korba, his said application, under the above rulings,
should have been received by the local office and held to await the
action of the successful contestant in that case. When Larson relin-
quished his preference right of entry John W. Korba was then entitled
to have his application acted ui)on in accordance with law.
Your office decision is accordingly reversed and John W. Korba will
be allowed to make entry of the land in question, unless upon further
investigation by your office he is found to be otherwise disqualified.
Among the papers transmitted with this case is an appeal by Marye
Korba to your office from a decision of the local office rejecting her
application to make homestead entry of the land in controversy. The
said api)eal and the papers accompanying the same are herewith
returned to your office for appropriate action thereon.
BAILROAI) LAXDS-SECTIOX 5, ACT OF MARCH 3, 1887.
Anderson r. Wing.
The statns of an applicant to perfect title under Bection 5, act of March 3, 1887, as a
"bona fide parchaser/' is not affected by the fact that he holds under a quit-
claim deed, or that said deed was executed in the consummation of an agree-
ment for the exchange of property, nor by the farther fact that prior to his
purchase fh>m the company he had been receiver of the land district within
which the land is situated.
410 jmasiovB belatino to the public lands.
A ''bona fide pnrohMer" from a railroad company of less than a legal snb-diTision
is entitled to porchase such tract from the government nnder said section 5^ and
reoeive patent therefor; bat if a survey of said tract is necessary, prior to the
issuance of patent, the expense thereof shoold be borne by the applicant.
Secretary Bliss to the Commissioner of the General Land Office, May 5,
(W. V. D.) 1897. (C. W. P.)
This case involves lots 1 and 2, of Sec. 33, T. 49 N., R. 4. W., Ashlaud
land district, Wisconsin.
The land lies within the fifteen miles indemnity limits of the grant to
the State of Wisconsin to aid in the construction of the Bayfield branch
of the Chicago, St. Paul, Minneapolis and Omaha road (acts of Juue
3, 1856, and May 5, 1864), and was selected by the Omaha company
July 12, 1887.
The record shows that on March 24, 1866, Francis E. Geveroux filed
pre-emption declaratory statement for said tracts. On May 20, isri6,
your office ordered all land in Wisconsin withdrawn until further order.
Said order was revoked shortly afterwards; but on December 18, 1836,
undei* directions of the Secretary of the Interior, an order was issued,
forbidding the allowance of any preemption claim predicated upon a
settlement made after receipt of said letter. From that date the lands
remained reserved until November 2, 1891.
On September 23, 1890, Isaac H. Wing applied to purchase said lots
nnder the 5th section of the act of March 3, 1887, and gave notice of
his intention to make final proof on November 6, 1890, when John J.
Anderson appeared and x)rotested against the allowance of said proof.
This proof having been prematurely made. Wing was required to
give a new notice, which he did, for March 30, 1891. Meanwhile, on
February 19, 1891, Anderson had applied to file pre emption declara-
tory statement for said lots and the NW. J of the NE. J of section 3.3,
T. 49 N., R. 4 W. This application was rejected by the local officers
because of the existing withdrawal. Anderson appealed, and your
office reversed the decision of the local officers for the reason that the
land was not within the withdrawal. Subsequently, on July 13, 1891,
your office withdrew said decision, and left the right of Wing and
Anderson to be determined on consideration of the contest which had
arisen between them.
On March 30, 1891, Wing submitted his proof, and Anderson pro-
tested. The local officers recommended that Wing be allowed to pur-
chase lots 1 and 2. Anderson appealed. Your office held that Wing's
application for lot 1 should be rejected, because his purchase from the
railroad company only covered a portion of said lot, and that his appli-
cation to purchase lot 2 should be allowed; and that Anderson should
be permitted to complete his filing as to lot 1 and the other tracts filed
for, with the exception of lot 2.
Both parties appealed to the Department.
DECISIONS RSLAHHO to the PUIiLIC LANDS. 411
The Department, by decision of January 18, 1896, held that the jm-
emption filing of Geveroux excepted tbe lots in controversy both from
the withdrawal and grant for said railroad, and tbat tbe land, filed on
by Anderson, was open to settlement, when he applied to file, subject
to a purchase in good faith under tbe act of March 3, 1887. But held
that ^<the facts appear to raise a question as to Wing's good faith in
this matter," and remanded the case that a hearing be had ''on that
point."
Pursuant to the directions of the Department, a hearing was had
before the local officers, who held that '' the bona fides of Wing, as an
innocent purcbaser seems to be clearly establisbed," and recommended
the dismissal of Anderson's protest. Anderson appealed. Your office
held that, so far as you were able to perceive, there was nothing in the
record and facts shown relating to tbe transaction between Wing and
tbe company inconsistent with, or tbat would preclude the presumption
of good faith, and affirmed tbe judgment of the local officers.
Anderson appeals to the Department.
The facts, as found by the Department in departmental decision of
January 18, 1896, are as follows:
Tbat Wing was receiver of the land office for the district, within which the land
lies, from January 29, 1880, until January 24, 1883, when he reaigne<l ; that on October
21, 1884, he conveyed, by quit claim deed, to Edwin W. Winter and John C. Spooner,
an undivided one- third interest in the land, and on October 28, following, the Chi-
cago, St. Paul, Minneapolis and Omaha Railroad Company, by quit claim deed, con-
veyed the land to Wing; that the last mentioned deed was recorded May 15, 1885,
and tbe deed to Winter and Spooner, on October 12, 1886; that on April 24, 1890,
the said Spooner, by warranty deed, in which bis wife Joined, conveyed the land
to Wing; tbat all these deeds recite a consideration of $1; that the deed fi'om
Spooner and wife to Wing was made through William H. Phipps, as attorney in
fact; that at tbe time of the execution of the deed Phipps was land commis-
sioner of tlie railroad company, and Winter, one of the grantees in tbe deed first
mentioned, was general manager, and Spooner, the other grantee, was then, or
shortly before, general solicitor of the comx)any ; tbat Phipps, in explanation of tbe
consideration recited in the company's deed to Wing, testified that it did not
represent all tbe consideration, but that Wing had conveyed to the company
ninety-five acres outside of the village of Washburn for terminal uses; tbat this
statement, however, was not substantiated by any copy of the conveyance referred
to; tbat Phipps also swore that there was no arrangement by which the railroad
company was to receive any of the land conveyed, nor that it was to be b^ld in trust
for the company ; and that Spooner bad been solicitor of the company, but he was
not sure whether be was such at the time of the conveyance to Wing.
Upon this finding of facts, the Department, not being satisfied that
Wing had shown himself to be a bona fide purchaser as contemplated
by the statute, ordered a hearing.
By the evidence taken upon the rehearing, it is shown that on March
27, 1883, Wing conveyed to the railroad company by warranty deed (a
copy of which is now in evidence in the case) a tract of land containing
ninety or ninety-five acres, in the town of Washburn, Wisconsin, for
railroad purposes. Wing, Phipps and Winter testify that, as part of
412 DECISIONS BELATING TO THE PUBLIC LANDS.
the consideration for said tract, conveyed by Wing to the company, the
company conveyed to Wing the land in controversy. The deed from
the company is a quitclaim deed, and no satisfactory reason is given
"why the company did not give a warranty deed. In explanation of
the lapse of time between the execution of Wing's deed to the company
and the company's deed to Wing, it is said by Pbipps, in his testimony,
that the delay on the part of the company probably arose from tbe
company not having received from the State its title to the land. The
transactions between Wing and Winter and Spooner are thoroughly
cleared up and tbe circumstances surrounding the case when it was
before the Department previous to the rehearing, apjiear to be suffi-
ciently explained.
That the company conveyed the land to Wing by quitclaim deed does
not of itself show that Wing was not a Ixmafide purchaser. Stebbius
«. Croke, 14 L. D.,4d8; Osbom r. Knight (on review), 23 L.D.,2I6;
Moelle V. Sherwood, 148 U. S., 21 ; United States r. California, etc, Land
Co., Id., 31. It is claimed, however, that, even if the evidence of the
parol agreement, between Wing and the railroad company, was admissi-
ble, which is denied, it shows a past consideration from Wing to the
company, which is not sufficient to entitle Wing to be considered a aona
fide purchaser.
That evidence may be given of a consideration not mentioned in a
deed, provided it be not inconsistent with the consideration expressed
in it, is accepted law (Greenleaf Ev., Sees. 286 & 304: Richardson r.
Traver, 112 U. S., 423) ; and the evidence establishing Wing's pnn^hase
does not show a past consideration, but that the deed from the company
to Wing was the consummation of an agreement for the exchange of
property, which is held, in Grandin r. La Bar, 23 L. D., 301, to be within
the remedy of the statute. Then it is said that Wing at and prior to
the time of his purchase from the company had actual or presumptive
knowledge of the existence of the pre-emption declaratory statement
of Geveroux, filed March 24, 1856, which it is claimed constituted a
fatal defect in his title. There is no evidence that Wing had actual
knowledge of the filing of Geveroux, and his good faith is not impugned
by the fact that prior to his purchase from the company he had been
receiver of the land district within which the land lies. Osborn r.
Knight (on review), 23 L. I)., 216,
One question remains. It is assumed in the decision appealed from,
that it was decided by the Department, when the case was before it on
Anderson's and Wing's appeals, that Wing was entitled to lot 1 as well
as lot 2, thus reversing your office decision of December 2, 1892, on that
point. But an examination of the decision of the Department does not
show such reversal. Its decision was simply that, " as the facts appear
to raise a question of Wing's good faith in the matter," a hearing should
be had "on that point." If his good faith should be established, he
should be allowed to purchase the land; but whether both lots or one,
DECISIONS REIiATING TO THE PUBLIC LANDS. 413
is not determined. In .his application to purchase, Wing applies for the
entire area of lots 1 and 2. But the conveyance from the company to
Wing only covers lot 2 and *^ so much of lot 1 as lies east of and adjoin-
ing lot 2.^ Lot 1 contains 49.50 acres, and the portion purchased by
Wing appears to cover about ten acres. Wing has no claim to purchase
under section 5 the remaining thirty-nine acres, which he did not pur-
chase from the company. But it is held by the Department in the case
of Union Colony v. Fulmele (16 L. D., 273), that a bona fide purchaser
£rom a railroad company of less than a legal subdivision is entitled to
purchase from the United States, under the fifth section of the act of
March 3, 1887, the land purchased from the company and receive patent
therefor upon making the proof required by said section; but that the
patent in such case should contain a recital that it is issued under
the provisions of said section.
In accordance with this decision Wing will be allowed to purchase
lot 2 and ^^ so much of lot 1 as lies east of and adjoining lot 2,'* and
Anderson permitted to complete his filing as to the residue of lot 1.
But before patents can issue, a survey of that part of lot 1 which is
embraced in Wing's claim must be made, the necessary survey to be at
the expense of Wing, and the plat thereof duly approved.
Your office decision is modified accordingly.
O'Brien v. Northern Pacific E. E. Co.
Motion for review of departmental decision of February 10, 1896, 22
L. D., 135, denied by Secretary Bliss, May 6, 1897.
INDIAX L.AXDS-CONTEST-ALL.OTMENT.
t
KoRSTRUM V. Head.
Under the regalations of the Department, land included within the occupancy of an
Indian is not suhject to entry, and a contest against an entry of land, so
excluded from disposition, will confer no right upon the contestant that will
prevent the Department from subsequently holding the land in reservation^
with a view to ita allotment to the Indian.
Secretary Bliss to the Commissioner of the General Land Office^ May 6^
(W. V. DO 1897. ' (F. W.'C.)
With your office letter of April 3, 1897, was forwarded a motion, tiled
on behalf of Alfred Norstrum, for review of departmental decision of
October 3, 1896 (not reported), in which the action of your office iu
dismissing his contest against the homestead entry of Henry C. Ilead,
covering lot 5, Sec. 17, and lot 1, Sec. 18, T. 42 iJ., R. 26 W., St. Cloud
land district, Minnesota, was affirmed.
414 DECISIONS BELATINO TO THE PUBLIC LANDS.
Head's entry was made September 22, 1891, aAd on October 15, 1894^
Korstmm filed an afOldavit of contest against said entry, alleging that
Head had never resided upon said tract since making his entry and
that he had wholly abandoned the same. In support of his claim Head
offered testimony tending to show that he was prevented from taking
up his residence upon this land by an Indian named Ghinorton, alias
Big Pete, who had been living upon a part of the land, and that he
had only been able to secure the consent of said Indian to build a
house upon the land a short time prior to the filing of said contest.
Upon this showing your office decision held, in view of the depart-
mental circulars of May 31, 1884 (3 L. D., 71), and October 26, 18S7
(6 L. D., 541), that it was error to allow Head to make entry of the
land while the Indian was in possession thereof, living upon and daim-
ing the same. Head's entry was therefore held for cancellation and
Nostrum's contest dismissed; from which action both parties appealed
to this Department
In order that the Department might be advised of the extent of the
Indian's claim, an investigation was made thereof by a special agent
of the Indian Office, at the request of this Department, and as a result
of the investigation the Commissioner of Indian Affairs reconunended
that the Commissioner of the General Land Office be instructed to with-
hold said lot 5 of Sec. 17 from entry.
The motion for review seems to be based upon the ground that no
formal claim has been made to this land on behalf of the Indian and
that the reservation of the tract occupied by him is not at his own
request or desire.
There can be no question, however, but that under the eircolars
before referred to the allowance of Head's entry, whether inadvertent
or otherwise, was clearly an eiTor, and this Department having before
it facts which it deemed sufficient to warrant a reservation of the land
occupied by the Indian, affirmed the action of your office and directed
that said lot 5 be held in reservation with a view to its allotment to the
Indian under the provisions of the act of January 14, 1889 (25 Stat^
642).
This action of course disposed of the contest, under which Nostrum
secured no such rights as would prevent the reservation of the laud,
and his motion is accordingly denied.
Hensley v. Waneb.
Motion for review of departmental decision of January 30, 1897, 24
L. D., 92, denied by Secretary Bliss, May 6, 1897.
DECISIONS RELATING TO THE PUBLIC LANDS. 415
BXEMPLLEICATION OF RBCORD-PRELIMIXABY INTORMATION.
F. M. Cabbyl.
A requeet for information bb to the cost of certified copies of specified papers, or
records, in the General Land Office, is entitled to a response with such infor-
mation as may of necessity be required to form the basis for a request for an
exemplification of the record.
Secretary Bliss to the Commissioner of the General Land Office^ May 5,
(W. Y. D.) 1897. (G. B. G.)
I have your favor of the 3rd instant transmitting a copy of a letter
from F. M. Carryl of Newark, New Jersey, addressed to myself and
referred to yoar office by the Department on April 27, 1897.
It appears that Mr. Oarryl desires certified copies of certain pai)er8
relating to fractional section 10, T. 39 N., B. 14 E., 3 P. M., Illinois,
now in the city of Chicago, among other things, —
Copy (dated) of any map or maps showing any resorvey or changes
from map of original survey of this tract.
It is submitted by your office that this would appear to include a
copy of the plat approved October 16, 1896, of the survey of the lake
front, executed by Frank Flynt and Walter T. Paine, XJ. S. surveyors,
in pursuance of instructions from the Commissioner of the General
Land Office, dated September 24, 1896, and you ask for instructions as
to whether there can be furnished at this time a copy of the plat ot
this last survey, the same to be certified as a true and literal exempli-
fication of the official plat of said survey on file in your office.
Sections 460 and 461 of the Bevised Statutes provide that —
Whenever any person claiming to be interested in or entitled to land, under any
grant or patent ft^m the United States, applies to the Department of the Interior
for copies of papers filed and remaining therein, in anywise affecting the title to snch
land, it shall be the duty of the Secretary of the Interior to cause such copies to be
made out and authenticated, under his hand and the seal of the General Land Office,
for the person so applying.
All exemplifications of patents, or papers on file 'or of record in the Oeneral Land
Office, which may be required by parties interested, shall be furnished by the Com-
missioner upon the payment bj^ such parties at the rate of fifteen cents per hundred
words, and two dollars for copies of township plats or diagrams, with an additional
sum of one dollar for the Commissioner's certificate of verification with the General
Land Office seal; and one of the employes of the office shall be designated by the
Commissioner as the receiving clerk, and the amount so received shall, under the
direction of the Commissioner, be paid into the Treasury ; but fees shall not be
demanded for such authenticated copies as may be required by the officers of any
branch of the government, nor for such unverified copies as the Commissioner in his
discretion may deem proper to famish.
It does not appear from the letter of Mr. Oarryl that he claims to be
interested either for himself or as the representative of another, or that
he is entitled to or claims to be entitled to the laud to which the papers
desired relate, under any grant or patent from the United States, nor
416 DECISIONS RELATING TO THE PUBLIC LANDS.
can his letter be treated as an application to the Department for certi-
fied copies of any papers or exemplifications of any records of your
office.
It is a request for information as to the cost, by items, of certified
copies of certain papers and records therein specified.
A dne regard for property rights and private interests witbiu the
jnrisdiction of this branch of the execntive department of the govern-
ment, the supervisory control of which is cast upon the Secretary of the
Interior by law, would seem to require that inquiries of this sort should
be answered, and such information furnished as may of necessity l»e
required to form the basis of a request of or demand on the proper
officer for the application of a statute in any case alleged to come within
its provisions.
I have therefore to direct that the information desired be furnished,
and that on a proper demand being made under the sections of the
revised statutes above quoted, by a party or parties coming within tlie
letter or spirit thereof, that such copies and exemplifications be fur-
nished as is tberein provided, due regard being had for the public
interest.
The cost of the copies desired should be approximated and a deposit
of money required to cover the cost of their preparation.
Benson v. State of Idaho.
Motion for review of departmental decision of January 8, 1897, 24
L. D., 272, denied by Secretary Bliss, May 6, 1897.
BAILBOAJ> 8ELJECTIONS-NON-MINERAJL. AFFIDAVIT.
Insteuotions.
Secretary Bliss to the Commissioner of the General Land Office^ May 10,
1897.
I am in receipt of your letter " N " of the 6th instant, relative to the
departmental order of the 9th ultimo, 24 L. D., 321, amending the la.<t
paragraph of the circular of July 9, 1894 (19 L. D., 21), providing for
the examination of selections by railroad companies of lands in mineral
belts.
In your letter you call attention to the fact said order in addition to
making the amendment referred to, also directs a modification of the
form of the mineral affidavit now in use in your office; and that ^'a
strict construction " of said order " must be held to apply to all cas( s
of whatever character in which a non-mineral affidavit is now require*!,
for it directs that the form of the non-mineral affidavit now in use m
this office be amended j" and you suggest that if the purpose of said
DECISIONS RELATING TO THE PUBLIC LANDS. 417
amendment was intended to apply only to state and railroad selections,
then the departmental order of the 9th ultimo be amended as follows :
That in lieu of the words " now in use in this office," the words ** in
state and railroad selections," be inserted.
The purpose of the amendment to the instructions of July 9, 1894,
by the order of April 9, 1897, was intended to apply to state and rtiil-
road selections only, and in order to avoid the complications that may
arise by the construction placed upon it by your office, said order is
amended as follows:
In the second line of the last paragraph on page two of said order
the words *'now in use in this office" are stricken out and in lieu
thereof the wor-ds " in state and railroad selections" are substituted,
so that said paragraph will read as follows:
" It is also hereby ordered that the form of the non-mineral affidavit
in state and railroad selections be amended as follows," etc.
ILVILROAD GRANT-INDEMNITY SELECTION— SPECIFICATION OF LOSvS.
Northern Pacific R. R. Co. v. Shepherdson.
The departmental order of May 28, 1883, waiving specification of loss, \ya8 made ut
a time when the indemnity withdrawals for the Northern Pacific were held valid,
and that fact must he taken into consideration, and given effect, in the disiKisi-
tion of selections made thereander.
Under the grant to the Northern Pacific indemnity selections may he made within
the first indemnity helt irrespective of the State or Territorial lines within which
the loss occurs.
Secretary Bliss to the Commissioner of the General Land Office, May 10,
(W.V.D.) 1897. ' (F.W.O.)
The Northern Pacific Railroad Compauy has appealed from your
otfice decision of December 22, 1894, holding for cancellation its indem-
nity selection covering the SW. ^ of the NW. \, the K J of the SW. J
and the NW. i of the SE. ^ of Sec. 13, T. 33 N., R. 40 E., Spokane
land district, Washington, and permitting the homestead entry made
of said land by William Sbepherdson May 12, 1890, to remain intiict.
This tract is within the indemnity limits of the grant to said com-
pany and was included in its list of selections filed May 25, 1885. This
list was presented under departmental circular of May 28, 1883 (12
L. D., 196), and was not accompanied by a designation of losses as a
basis therefor.
On October 31, 1887, a supplemental list was filed, in which losses
\^ere designated in bulk in amount equal to the selected lands. These
losses, it appears from your office decision, were of lands within tlie
Yakima and Coeur d'Alene Indian reservations, in the States of Wash-
ington and Idaho, respectively.
On September 2, 1892, the company filed a rearranged list of its losses
so as to specify the same tract for tract with the selected lands.
10671— VOL 24 27
418 DECISIONS RELATING TO THE PUBLIC LANDS.
As before stated, Sbei)herdson made homestead entry May 12, 1S9<I,
and in his affidavit alleged settlement upon the land April 16, 1890.
Year office decision holds that the company's selection of 1885 was not
protected by the order of 1883, for the reason that the lands were not
withdrawn, the indemnity withdrawal being in violation of law, and
in support thereof referred to the case of John O. Miller r. Northern
Pacific R. li. Co. (11 L. D., 428).
In the case of the Northern Pacific Railroad Company r. Holtz (22
L. I)., 309) it was held (syllabus):
The order of May 28, 1883^ waiving specification of losa in support of indemnity
selections, was made at a time when the indemnity withdrawals for the benefit oi
the Northern Pacific were held valid, and that fact must be considered and given
effect in determininir the scope and purpose of said order, although such withdrawals
are now held invalid.
It is further held that the designation made in 1887 was not safficient
for the reason that selections can not be made in Washington for lands
lost in Idaho until it is shown that such losses can not be satisfied in
the latter State, and in support thereof reference is made to the case of
Northern Pacific R. R. Co. (17 L. D., 404).
In reviewing the case cited, this Department held (20 L. D., 187),
^^that indemnity selections may be made within the first indemnity
belt, irrespective of State or Territorial lines."
The objection stated in your office decision, to the company's selection,
is therefore not sufficient, and it must be held, unless other good and
sufficient reason appears upon further examination of the company's
selection by your office, that its rights under its selection dated back as
of the time of the presentation of the list of May 25, 1885, and as
this is long prior to Shepherdson's entry, the same must therefore be
canceled.
Your office decision is accordingly reversed.
IIESERT L.ANT> ENTRY-MORTGAGE-ASSIGXEE.
Thomas E. Jebemt.
A mortgage of land covered, by a desert land entry cannot be regarded as entitliog
the mortgagee to the status of an assignee of the entry, until after foreclosore of
the mortgage, if, under the laws of the State in which the land is situated, a
mortgage of real property is not a conveyance thereof.
Secretary Bliss to the Commissioner of the General Land Office^ May 10,
( W. V. D.) 1897. (J. L.)
This case involves the N. J of section 29, T. 1 N., R. 2 W., Salt Lake
City land district, Utah.
On September 16, 1893, William 0. Dyer made desert land entry No.
3843 of said tract, containing three hundred and twenty acres. Od
DECISIONS RELATING TO THE PUBLIC LANDS. 419
Septembei* W^ 1895, Thomas £. Jeremy filed his affidavit iu the folio w>
iug words:
In the U. S. Land Office,
Salt Lake Cityy Utah, September 16th, 1895.
Thomas £. Jeremy being dnly sworn on oath says he is a citizen of the United
.States of lawful age, and the assignee of William C. Dyer, who made desert land
entry No. 3843, September 16, 1893, for the north half of section 29 in township 1
north of ranf^e 2 west, S. L. M. containing 320 acres. That said land was assigned
to him by mortgage on the 9th day of October 1893. That since then, said Dyer has
(lied leaving no heir, and affiant has taken possession of said land and reclaimed the
same as shown by attached proof.
Thos. £. Jkremy.
Subscribed and sworn to before me this 16th day of September A. D. 1895.
Byron Grog, Register,
With said affidavit, Jeremy filed (1) a certificate, dated September
16, 1895, and signed by one Arthur Parsons, Secretary, N. P. C. I. Co.,
Btating
that Thomas E. Jeremy is the owner of two certificates of stock one No. 196 for 74
shares, and one No. 253 for two shares of the capital stock of the North Point Con-
solidated Irrigation Company of this city and oonnty, Utah Territory. Each share
is of the par value of ten dollars, and each share is estimated to be sufficient to irri-
gate nine acres of land;
(2) the affidavits of himself and Thomas L. Irvine and Levi A. Eeed,
all dated September 16, 1895, and stating
that there was expended by Thomas E. Jeremy, assignee of William C. Dyer, dur-
ing the second year after the date of said entry, that is after tho 16th day of .Sep-
tember 1894 and before the 16th day of September 1895, the sum of $487, being not
less than one dollar per acre of the area thereof, and that the Hiiid sum was expended
in the following manner viz: In purchasing water stock for irrigating said land the
snm of $327, and in clearing a portion of said land $160; total $487 ;
and (3) a copy of a mortgage dated October 9, 1893, purporting to have
been executed by William 0. Dyer, and conveying the N. J of section
29 aforesaid to Thomas E. Jeremy, as a mortgage to secure the pay-
ment of $1500 of money, loaned to improve said land, and evidenced by
Wm. C. Dyer's promissory note for $1500 made payable to the order
of Thomas E, Jeremy on or before three years after date, which is
copied iu the mortgage.
On DeceinJber 6, 1895, your office, considering said affidavit of
Jeremy as an application for recognition as assignee of Wtlliam C.
Dyer, decided (among other things)
that until after foreclosure upon the mortgage he (Jeremy) can not be recognized
as the assignee of the entry; and that then he could not be so recognized, nor could
any other vendee under the sale by decree of court, unless he should show the quali-
tications exacted of an assignee of a desert land entry.
From said decision Jeremy has appealed to this Department.
The Statutes of Utah provide that —
A mortgagei of real property shall not be deemed a conveyance, whatever its terms,
BO as to enable the owner of the mortgage to recover possession of the real property
without a foreclosure and sale. (Compiled Laws of Utah, Vol. 2, p. 324.)
420 DECISIONS RELATING TO THE PUBLIC LANDS.
Sucli beiug the Iaw of the State where the property in questiou is
situated, the Deparcment cannot, in view thereof, recognize the api)el'
lant Jeremy as the assignee of Dyer until he has foreclosed his mort-
gage and become the purchaser thereunder; and the decision of your
office must therefore be affirmed.
The fact however, if true as alleged, that Jeremy took possession of
the property after the death of Dyer, and lias since kept up the nece^s
sary exi^enditures and improvements thereon with a view to preserving,
as far as possible, the security for his debt, no heirs of Dyer havin;'
appeared to claim the land, would seem to present strong equities iu
his favor, and if he shall by the foreclosure of his mortgage under the
laws of Utah, as suggested, place himself in a position to be recognized
as the assignee of Dyer, I see no just reason why he may not be allowed
to submit proof under the former's entry, and if so submitted the same
will be duly considered.
Your said office decision is accordingly affirmed.
OKI^VUOMA I-AXDS-QUALIFIC'ATIONS OF SETTLER.
HUYCK ET AL. r. HARDING.
An applicant for the right of entry in Oklahoma is not diaqnalified by reason of hih
knowledge of the country, gained through residence therein prior to the pro-
hibited period.
Secretary Bliss to the Commissianer of ilie Oeneral Land Office^ May 10,
(W. V. D.) 1897. (W. C. P.)
B. E. Smith and Allen E. Harding have both appealed from your
office decision of November 26, 1895 in the case of Charles M. Huyck,
B, E. Smith and Allen B. Donaldson v. Allen R. Harding involving the
SE. 4 of Sec. 21, Tp. 21 K, R. 1 W., Perry, Oklahoma land district
This tract is a part of the body of lands known as the '* Cherokee
Outlet " opened to settlement at noon on Saturday September 16, 1^9^^^.
Harding made homestead entry for said tract on September 18, 181)o.
On September 20, Huyck Hied affidavit of contest against said entry;
on September 22, Smith hied his affidavit of contest, and on October
28, Donaldson filed his affidavit, each one claiming to be the fii*st
settler npon said tract. After a hearing at which all parties appeare<l
and submitted testimony, the local officers found that Huyck was tbe
first settler and awarded the land to him. Notice of this decision va>
acknowledged by the attorneys of the respective parties on March 1-,
1895, and appeals therefrom were tiled, by Harding on April 5, by Sniitii
on April 11, and by Donaldson on April 13, following. Your office fonnd
that Donaldson's appeal was filed too late, declared the local officers*
decision final as to him, and affirmed said decision, awarding the land
to Huyck as the first settler. Appeals by Harding and Smith bring
the case here.
DECISIONS RELATING TO THE PUBLIC LANDS. 421
These appeals agree in urging that Buyck was disqualified as a claim-
ant for this land because of the advantage he had over other claimants
owing to his knowledge of the country obtained by a residence there
prior to the opening of said lands to settlement. The act of Congress
approved March 3, 1893 (27 Stat. 012-C40) authorizes the opening of
these lands to settlement by proclamation of the President and contains
the following provision :
Xo person shall be permitted to occupy or enter npon any of the lands herein
referred to, except in the manner prescribed bj^ the proclamation of the President
opening the same to settlement; and any person otherwise occupying or entering
upon any of said lands shall forfeit all right to acquiring any of said lands.
The proclamation of the President dated August 19, 1893 (17 L. D.,
230) declared that said lands would be opened to settlement at 12 o'clock
noon on Saturday September IG, 1893, prescribed rules and regulations
for the occupation and settlement of said lands, and as to premature
occupation thereof repeated the words of the statute quoted above.
The facts as to Huyck's knowledge of these lands and the manner in
which it was acquired are to be found in his own testimony. When
asked to state how he became acquainted with that country he replied:
I have lived in this country ten years, have worked for cattle men right on thin
range all around where Wharton, Perry Htand. I know every divide, every creek,
nod all crooks and turns there is in this locality.
He further says that he knew very near where all the lines of this
tract ran, that he did not enter the Cherokee Strip between August 19,
and September 16, 1893, that he was last in the Strip prior to Septem-
ber 16, 1893 on July 7, when he went to Wharton to get money due
him from the railroad company for which he had been working, that
during the winter of 1892-3 he worked for a hack line company up to
about the last of March and then for the railroad company until about
the first of June, living during that time in a dug out built by the hack
line company near Wharton and in the vicinity of this tract. He fur-
ther states that he knew the country as well three years before as he
did the day he made the run, that he knew other tracts better than the
one he selected and admits that bis knowledge of the country possibly
(rave him some advantage in selecting a route to travel over, to reach
any particular tract. He says he expected to take land in section 27,
but finding some one there he passed on and located on the first tract
he found unoccupied. I^o other witness testified upon this point in the
case and the above statement gives the substance of all the testimony
as to Huyck's presence in that country prior to the opening.
It is contended that the facta in this case bring it within the rule
laid down in FauU i\ Lexington Townsite (15 L. D. 389). The facts
testified to in that case are not set forth in the decision but it is said :
I think it is clear from the evidence, that not only, the townsite company, but that
F'aull, made au examination and selection of the tract in dispute, subsequent to tho
passage of the act of March 2, 1889, and prior to the time fixed by the President's
422 DECISIONS RELATING TO THE PUBLIC LANDS.
proclamation for the opening of said lauds to settlement, -hence Fanll is disqualified
from appropriating the same as a homestead.
It has been held in regard to the lauds in the Cherokee Outlet, that
the inhibition against entering upon and occupying them runs from the
date of the President's proclamation, August 19, 1893, opening said
lands to settlement. Townsite v. Morgan et aL, 21 L. D., 496.
In the case at bar the evidence shows that Huyck did not make any
examination of this tract during the prohibited period, and that he was
not, in fact, within the boundaries of these lands during that period.
The rule in the FauHcase does not therefore apply here. Neither cau
the fact that Huyck had a knowledge of the country gained prior to the
prohibited period be held to disqualify him from taking land therein.
In Golden r. Cole's Heirs (16 L. D., 375) it was said:
It was impossible to deprive people who had been over the Territory of the knowl-
edge they had thns acquired, bnt it was the intention of Congpress that persons
should slay out of the Territory after it had been secured as a part of the jmlilic
domain until a certain hour.
In Ournutt v. Jones (21 L. D. 40) it was shown that Jones was well
acquainted with the particular tract claimed by him at the date of the
act authorizing the ox>euing of the lands to settlement, that he had in
SsMt selected it prior to that time and that he frequently passed throngb
that section of country after the President's proclamation fixing tlie
date at which the land would be opened for settlement. It was Leld
that Jones was not disqualified to take the tract in dispute, it being
said:
Jones, the defendant in this case, had lived for some lime on the border of the ter-
ritory, within less than a mile from the line, and almost from the necessity of his
situation was familiar with the lands in the -immediate vicinity. His information
respecting them, and particularly respecting the tract subsequently entered by bim,
is showu to have been acquired long prior to March 2, 1889, and as was well said iu
the case of Golden r. Cole*s heirs, supra, "It was impossible to deprive people who
had been over the Territory of the knowledge they had thus acquired.*' His peri-
odical visits to Oklahoma city, which was at once his post office, his most conveuient
and accessible railway station, and his market town, do not appear to have brought
him any advantage over other persons seeking lands in the Territory, and his entrance
therein upon the missions and for the purposes indicated by the evidence, it having
been made affirmatively to appear that he reaped no advantage therefrom, should
not, in my opinion, be held to disqualify him.
In Monroe et al. i\ Taylor (21 L. D. 284) it was shown that one of tbe
claimants, Jordan, went into the Territory in 1888, prior to the act of
March 2, 1889, and selected a tract ac^acent to the one there in contro-
versy, that he went out on the order given to vacate the Territory, and
that after the passage of said act he was three times within the pro
hibited territory, to visit in his professional capacity a sick patient, and
that during those visits he did not seek to obtain any information in
reference to land. In view of these facts it was said :
No knowledge of this particular tract of laud, or of adjacent lands, obtained prior
to the passage of the act of March 2, 1889, however advantageous such information
DECISIONS RELATING TO THE PUBLIC LANDS. 423
might be, con Id have the effect of disqaalifyiDg him for subsequent entry, and the
presence of Jordan ^nsicte the Territory during the prohibited period, under the cir-
cumstances detailed, would not disqualify him unless it should appear that he
acquired some advantage over others by reason of such visits. The conclusion that
he did or could obtain such advantage seems to be clearly negatived by the evidence.
InlJie case of Hensley v. Waner (24 L. D., 92) the doctrine laid down
iu Monroe et al. v. Taylor is reaflBrmed.
In the case under consideration Huyck like the varioas claimants in
the cases cited, acquired a knowledge of the country by a long acquaint-
ance therewith prior to the prohibition against entry thereon and added
Dothing to his information in respect thereto after the beginning of the
prohibited period. The conclusion of your office upon this point in the
case, that Huyck was not disqualified as an entryman by reason of his
knowledge of the country gained by a residence therein prior to the
prohibition against entry upon said lands is in accord with the ralings
of this Department as laid down iu the cases herein cited and is
concurred in.
The only other question presented by the record for consideration is
as to the priority of settlement upon the tract in dispute. The testi-
mony is voluminous, and, as is to be expected in view of the conditions
under which the claims are asserted and the fact that there were four
different claimants, it is contradictory. The substance of the testimony
submitted in support of the respective claims is set forth in the deciition
appealed from and it is not necessary to repeat it here. An examina-
tion of that testimony leads to a concurrence with the conclusion reached
by the local officers and in your office th^t Huyck was the prior settler
upon this tract. He followed up that settlement by residence which
has been continuously maintained and by such improvements as indi-
cate his intention to make the place his home. He also showed himself
duly qualified to make homestead entry.
The decision appealed from is therefore hereby affirmed.
SCHOOI^ LANDS-INDEMNITY SEL.K<TION.
William Wiley.
A school indemnity selection not maue within the land district iu which the loss
occarred, as required by section 2276, R. 8., may be held valid, in the absence of
any intervening adverse right, under the amendatory act of February 28, 1891,
which removed said restriction.
Secretary Blvts to tlie Commissioner of the General Land Office^ May 10,
(W. V. D.) 1897. (0. W. P.)
From the record in the case of William. Wiley, it appears that on
September 26, 1895, Wiley made desert land entry of lot 1 and the NB. J
of the NW. 4 of Sec. 31, T. 22 S., E. 59 W. Pueblo land district,
Colorado.
424 DECISIONS RELATING TO THE PUBLIC LANDS.
Said entry was held for cancelhition, as invalid, by yoor office deci
sion of December 19, 1895, ujwn the ground that the land entered had
been selected by the State of Colorado as school indemnity, in list No.
3, filed in the local office January 6, 1890.
From this decision Wiley has appealed to the Department, contend
ing that the indemnity school selection made by the Stat« of (Colorado
is controlled by section 2276 of the Revised Statutes, which provide^
that such indemnity ''shall be selected within the same land district*'
in which the losses occur, and not by the act of February 28, 18!>1, which
provides :
That the lands appropriated by the preceding section shall be selected from any
unappropriated, surveyed public lands, not mineral in rharacter, within the Stat« or
Territory where Ruoh losseH or deficiencies of school sections ocrnr. (26 Stat., 796.'
It is true that, when the State made the selection in question, its
right of selection was restricted to lands within the same district in
which the loss occurred. But the act of February 28, 1891, aupra,
removed that restriction long before Wiley made his desert land entry,
and I can see no reason why, the restriction being removed before Wiley
applied to enter the land, the selection should not be held to be valid.
(See State of Dakota, 13 L. D., 708.)
Your office decision is therefore affirmed. The motion to dismiss
Wiley's appeal, filed by the attorney for the Bent-Otero Improvement
Company, as intervener, is dismissed.
I N 1>I AN AL. IX>TM E NT— (^OXTEST.
Adams r. George.
The action of the Office of Indian Alfairs on allotments is conclnaive, so far as the
(ieueral Land Office is concerned, as to whether the Indian was a settler on the
land, and whether he was entitled as an Indian to receive an allotment.
Secretary Blis/t U> the CommisHioner of the General Land Office^ May l^K
(W. V. D.) 1897. (J. L.)
This case involves lot 7 of secti(m 19, T. 17 N., R. 2 E., Humboldt
meridian, in Humboldt land district, California, containing 39.59 acres.
On September 8, 1892, John B. George, a half-blood Indian of the
Klamath tribe, filed in the district land office, his application No. 29 to
have allotted to him under the act of February 8, 1887 (24 Stat., 388
as amended by the act of February 28, 1891 (26 Stat., 794), lot 7 of sec-
tion 19 and the NE. { of the N W. J, and the N. J of the NE. J of section
30, T. 17 N., R. 2 E., Humboldt meridian, containing 159.50 acres of
surveyed lands, valuable only for grazing purposes. And the allotment
was duly made.
On October 15, 1892, Mary A. Adams filed her affidavit of contest,
corroborated by Horace Gasciuet, against said allotment so far as it
embraced the lot 7 of section 19 aforesaid, in which affidavit she
DECISIONS RELATING TO THE PUBLIC LANDS. 425
alleged: (1) That on September 25, 1892, she made actual settlement
on lots 6 and 7 in section "19" and lots 7, 8 and 9 of section 20, in the
township aforesaid, containing 139.40 acres; (2) that George had never
made any settlement on any portion of the lands embraced in the
allotment to him ; and (3) that George's application was not sworn to
before an authorized officer, and is therefore void.
The local oflScers rejected said aflBdavit of contest, "because the
liind had been allotted to the claimant before the alleged settlement of
the contestant" was made.
Adams appealed. And on September 14, 1895, your office (by letter
'^G-') affirmed the action of the local officers, refused to order a hear-
ing, and dismissed the affidavit of contest.
On December 24, 1895, Adams filed an appeal, which was transmitted
to this Department by j'our office on March 3, 1896.
By letter " G " of June 12, 1896, your office transmitted to this Depart-
ment (1) a paper purporting to be John B. George's relinquishment of
lot 7 of section 19 as aforesaid, (2) a homestead application of Mary A.
Adams embracing said lot, and (3) certain correspondence in regard to
a survey affecting said lot. All of said papers were filed in the local
land office on May 23, 1895, while the appeal was pending here. Upon
the recommendation of the Commissioner of Indian Affairs the Secre-
tary declines to accept and will not recognize the said relinquishment.
Your office decision of September 14, 1895, rejecting Adams' affidavit
of contest and refusing to order a hearing was clearly right.
The papers show that George's application was sworn to before M.
Piggott, a special allotting agent, who was duly authorized to admin-
ister oaths in that case. (See section 3 of the act of February 8, 1887,
and paragraph 628 of the Regulations of the Indian Office.)
The affidavit of contest shows that Adams made her settlement on
September 25, 1892, seventeen days after the allotment to George had
been placed on record. So that she was not a prior settler, and
had no rights that were violated by the allotment.
The other allegation in the affidavit of contest, towit : " That George
had never made any settlement on any portion of the lands embraced
in the allotment to him," presented a question of which your office had
not, and even now has not jurisdiction.
The regulations prescribed by the Secretary on June 15, 1896 (22 L.
D., 709) provide that
the action of the Office of ludian Affairs on said aHotments shall be conclusive^
BO far as the General Land Office is concerned, as to 'whether the Indian was a settler
upon said land, and whether he was entitled as an Indian to make nn allotment.
Your office decision is hereby affirmed.
426 DECISIONS KELATING TO THE PUBLIC LANDS-
RESIDENCE— AB AJa>ONMENT-VOTING .
Pbatsoh et al. t?. Dobbins et al.
Registering and voting for several sucoeseive years in a precinct in which the land is
not sitnated, on an oath as to actual residence in such precinct, raises a concla-
sive presomption against a claim of residence for the same period on the land.
Secretary Bliss to the Commissioner of the General Land Offi<:€^ May 10,
(W. V. D.) 1897. (R. W. H.)
The plat of township 21, range 9 W., Olympia district, Washing-
ton, was filed in the local land office, March 8, 1895.
On the samc^ay, Thomas Thorpe filed a pre-emption declaratory state-
ment for the W. i of the 8E. J and the S. i of the SW. J, Sec. 36, of said
townBhip and range, alleging settlement in October, 1890, and improve-
ments of the valne of $685; Charles R. Pratsch filed pre-emption
declaratory statement for the 8W. | of said section 26, alleging im-
provements of the valne of $450; and Hiram E. Hulet made homestead
entry for the SE. | of said section, alleging settlement prior to Janu-
ary, 1895, and valuable improvements.
On May 7, 1895, Levi Dobbins filed application to enter the SW. ^ of
said section, under the timber and stone act of June 3, 1878 (20 St^t,
89), alleging that said land was valuable chiefly for timber and stono,
was unfit for cultivation, and was uninhabited, and that it contained
no mining or other improvements.
On May 22, 1895, Thorpe gave notice to Hulet, Dobbins and Pratsch
that on July 20, 1895, he would make final proof for the land claimed
by him before H. M. Sutton, United States Commissioner, at Montesano,
Washington. On said day, Thorpe and his witnesses appeared before
said commissioner, and submitted their testimony, which was received
at the local office on July 22, 1895. On this last named day, Holet,
Pratsch and Dobbins filed protests against the allowance of said proof,
and the local office rejected the same because one of Thorpe's two wit-
nesses admitted on cross examination that he had not seen the laud
claimed by Thorpe, and had never seen Thorpe on the land, until Feb-
ruary, 1895. From this rejection Thorpe appealed to your office.
On May 8, 1895, Dobbins advertised his intention to make proof on
his timber land claim, and July 23, 1895, was fixed as the time, due
notice being given to Pratsch and Thorpe to show cause why Dobbins's
entry should not be allowed.
On the day named Dobbins made his final proof, Pratsch and Thorpe
each filing protests and alleging bona fide settlement and valuable
improvements at the date Dobbins applied to enter the land.
Thorpe's final proof having been rejected, as heretofore stated, tlie
proof of Dobbins was suspended to await the hearing on Pratscb's
protest, set for Sejitember 10, 1895, and of which Dobbins and Pratsch
were notified.
DECISIONS RELATING TO THE PUBLIC LANDS. 427
As a result of the hearing, the local office allowed the proof of Dob-
bins, dismissed Pratsch's protest, and held his pre-emption declaratory
statement for cancellation.
The cases came to your office on the appeals of Thorpe and Pratsch^
and as the interests of all the claimants of the laud were involved
therein, tbey were consolidated and considered together.
The testimony established to your satisfaction the following, among
other facts: that Pratsch was not a bona fide resident of said land;
that, even if he had made actual settlement thereon, he had siDce
abandoned it; that the registration and poll books of Aberdeen pre-
cinct in Chehalis county, Washington, for 1891, 1892, 1893, and 1894,
showed that the said Charles E. Pratsch was a legal voter and actual
resident of the second ward of said city during each of said years, and
that his claim was based upon a mere pretence of settlement. Your
office accordingly dismissed his protest, and held his declaratory state-
ment for cancellation.
I find that Pratsch's attempted explanation of his registering and
voting in Aberdeen amounts substantially to an admission of the
charge.
In the case of State of California v. Sevoy (9 L. D., 139), it was held
that Sevoy's voting in Crescent City — a different precinct from that in
which his claim was located — 'indicated an illegal act rather than a
change of domicile,'^ and did not raise a conclusive presumption against
his claim of residence. But where registering and voting have been
done for several successive years, and an oath has been taken each year,
by a party, that he was an actual resident of the place at which the
registering and voting occurred, the case is entirely different, and, in
my opinion, the presumption, either of non-residence on the land or
abandonment of such residence, is conclusive.
This last supposed case, I find from the testimony, is exactly Pratsch's
case, and there is nothing in his appeal to the Department which raises
any doubt, in my mind, as to the correctness of your action in dismiss-
ing his protest and holding his declaratory statement for cancellation.
At this stage of the controversy it would be premature, on the part
of the Depariment, to take any action, or express an opinion, with
respect to the conflicting claims of Thorpe and Dobbins, in view of your
office decision, reversing the action of the local office and suspending
their final proofs, until a further hearing can be held to determine the
coufiict between all the parties in interest. Your order for this hear-
ing, on the ground indicated in your office opinion, is approved.
428 DECISIONS RELATING TO THE PUBLIC LANDS.
RE LINQI'ISH>rENT— C:OXTE.ST— FIN AL. DECISION.
CUBNUTT r. LAWBBNOE.
A reliuqiiishmont can not be held to be the resalt of a contest which had, prior to
the relinquishment, been tinally decided in favor of the entryman.
Secretary Bliss to the Commissioner of the General Land Office^ May 11.
( W. V. D.) 1S97. (C. W. P. .
The record shows that on April 27, 1 889, James B. Jones made home-
stead entry of the NW. \ of Sec. 35, Tp. 13 N., R 1 W., Oklahoma land
district, Oklahoma; that on January 12, 1891, Adah Curnutt initiated
contest against said entry, charging Jones with soonerism; that the
local officers sustained the contest; that the entryman having died
during the i)endency of the case before the local officers, Joab Jones,
his father and heir at law, {Appealed from said decision to your office,
and from your office to the Department ; that the decision of your
office, which was in favor of Jones, was reversed by the Department
on July 6, 1895. (Curnutt t?. Jones, 21 L. D., 40.)
It further appears that on March 13, 1896, the said Joab Jones rehu-
quished said entry, and Edward L Lawrence made homestead entry of
said land; that on the same day the local officers transmitted their
report, showing that notice of said departmental decision had been
served on Adah Curnutt on November 18, 1895, and that no motion for
review had been filed.
On March 24, 1896, Adah Curnutt presented her homestead applica-
tion for said land, which was rejected by the local officers for coniiict
with the entry of Lawrence, and on March 30, 1896, Adah Curnutt filed
a motion for rehearing in her contest against Jones on the ground of
newly discovered evidence, which motion was served on Jones's attor-
ney on May 27, 1896. On April 7, 1896, Adah Curnutt filed an appeal
from the decision of the local officers, rejecting her homestead apj)!!-
cation.
On August 4, 1896, the Department denied Adah Curnutt's motion
for rehearing, on the ground that said motion was not served, until sub-
pequeutly to entry of Lawren(!e, and said :
In the appeal before your office in the case of Cnrnutt r. Lawrence it is nrged that
the relinquishment filed by Joab .lones, heir at law as aforesaid, was the result of
the contest of Curnutt r. Jones, which, if true, would lead to the cancellation of the
entry of Lawrence and the awarding of a preference right of entry to Curnutt. The
case is therefore remanded to j^our office for such action upon the allegations of Cnr-
nutt in the premises as may be deemed just and proper by yon.
And the ease was remanded to your office " for such action upon the
allegations of Curnutt in the premises as may be deemed just and
proper.''
On August 22, 1896, your office promulgated the decision of the
DECISIONS RELATING TO THE PUBLIC LANDS. 429
DepartQieut uu the motion for rehearing, and formally closed the case
of Ciirnutt r, Jones.
In ber appeal from the decision of the local officers rejecting her
application to enter said land, Adah Ouruutt insists that the local offi-
cers erred in rejecting her application for the reason that she
wag the snccessfal contestant for the tract applied for, the content of Adah Cur-
nutt r. the heirs of James B. Jones, deceased, for said tract of laud being still pend-
ing and not final]3' closed by the Commissioner of the General Land OtHce, and the
relinquishment filed by Joab Jones, heir, was directly caused by the pending contest
of this applicant and said relinquishment was tbe result thereof,
and prays that Lawrence may be required to show cause why his
entry should not be canceled for conflict with the prior and superior
right of the appellant.
Your office affirmed the decision of the local officers, rejecting Adah
Cornntt's application to enter said land, and she appeals to the Depart-
ment.
Notice of the decision of the Department, dismissing Adah Curuutt's
contest was mailed by the local officers to Adah Curnutt on November
18, 1895, and her motion for rehearing was not filled until March 30,
1896. The time allowed for filing a motion for review or for rehearing
expired on the 29th of December, 1895, and the decision of the Depart-
ment then became final. Hence the filing of the relinquishment can not
be held to inure to the benefit of the contestant. The fact that your
office had not then formally announced that the case of Curnutt t?.
Jones was closed, reserved to the contestant no rights, and the relin>
quishment can not be held to be the result of a contest which had pre-
viously been finally decided by the Department in favor of the entry-
man. Warn v. Field, 6 L. D., 236; Pomeroy v. Wright, 2 L. D., 164.
Your office decision is therefore affirmed.
ATPLICATIOX TO AMEN1> ENTRY-AI>\TCIi.SE CI^AIM.
Hudson v. Orr.
An application to amend a homestead eutry-, by including therein an ailditioual
tract, operates to reserve the land covered thereby, so far as the rights of the
applicant are concerned, until final action thereon.
Secretary Bliss to the Commissioner of the General Land Office^ May 11 j
(W. V. D.) 1897. (J. L.)
This case involves lot 1 of section 13, T. 11 N. K. 4 E., Indian merid-
ian, Oklahoma City land district, Oklahoma, containing 13.55 acres of
land. '
On March 15, 1892, Joseph 0. Orr made homestead entry No. 3267 of
lots 1 and 2 of section 18, T. 11 N., E. 5 E., containing 50.86 acres of
land. On December 2, 1893, he filed an application to amend said entry
so as to include the aforesaid lot 1 of section 13, T. 11 N., R. 4 E., sita-
430 DECISIONS RELATING TO THE PUBLIC LANDS.
ated in an adjoining township, but contigaoas to the lots entereu oy
him. In rapport of said application he filed his affidavit, corroborated
by two witnesses, in which he alleged:
That at the time he made said entry he applied for lots 1 and 2 of See. 18, T. 11
N., R. 5 E.; and also for lot 1 of Sec. 13, T. 11 N., R. 4 £., all of said tracts being con-
tifn^ons; that at the time he presented said application he was informed by the clerk
in charge at the U. S. Land Office that lot 1 in Sec. 13, T. 11 N., R. 4 E., was noi
open to entry but was allotted land, and your affiant was shown a schedule which
appeared to iidicato that said land was not open to entry. That your affiant was
only allowed to make entry of said lots 1 and 2 in Sec. 18; that yoor affiant estalK
lished his residence on said lots 1 and 2 of said Sec. 18, T. 11 N., R. 5 E.; has bailt
a house thereon, reduced a portion of said tract to cultivation and has in all respects
complied with the homestead law as to residence and improvement; that he baa
cleared and reduced to cultivation some two or three acres upon said lot 1 in Sec. 13;
that a short time ago your affiant was informed by his former attorney, L. P. Hudson,
that a mistake had been made in t-elling him that lot 1 in Sec. 13 was allotted land,
and that the same was in truth and in fact, government land and open to entry;
that no petson other than your affiant has occupied or improved said lot 1 in Sec. 13,
and that the same is also clear of any adverse claims of record.
The local officers recommended that the application be allowed. Bat
on December 21, 1893, your office reversed the decision of the local
, officers, saying:
There appears to be no law or regulation of this department, under which Orr's
fbpplication to amend may be properly allowed; and the application is therefore
rejected subject to the usual right of appeal.
From said decision Orr appealed; and on Joly 0, 1895, this Depart-
ment reversed your office decision, saying:
In view of the facts set forth, and especially of the improper restriction through
the erroneous action of the local land office, it is my -opinion that Orr should li«
allowed to amend his homestead entry in accordance with his original applic&tiou.
(See Northern Pacific Railroad Company r. Yantis, 8 L. D. 58).
And your office proceeded by letter "C" of August 17, 1895, to carry
said departmental decision into effect.
In the meantime, while Orr's appeal was pending, to wit: On May 3,
1894, Lewis Hudson had been permitted by the local officers to make
homestead entry of the aforesaid lot 1 of section 13, T. 11 X., R. 4 E.,
containing 13.55 acres of land, which were awarded to Orr by the
departmental decision aforesaid. Whereui>on your office by letter "C
of October 3, 1895, directed the local officers to advise Lewis Hudson
that he will be allowed thirty days from notice within which to show cause why
his said entry should not be cancelled, having been improperly allowed when the
tract was reserved by the pending application for amendment of Joseph C. Orr, party
to homestead entry 3267, made March 15, 1892, for lots 1 and 2, sec. 18, T. 11 K., E. 5 £.
Within the thirty days prescribed, Hudson filed under his oath, but
uncorroborated, an answer to the rule, and a piX)test against the allow-
ance of Orr's application to amend, in which he alleged :
That at the time he made said homestead entry he was informed by a Mr. Watts a
clerk in the said Land Office, that said tract was vacant government land subject to
DECISIONS RELATING TO THE PUBLIC LANDS. 431
homestead entry, and that he has siuce date of said entry settled and resided upon
said tract in good faith and made valaable improvements thereon.
That the records of the said Land Office show that said Joseph C. Orr made his
haoiestead entry upon lots 1 and 2 of se<*tion 18, in township 11 N. of range 5, east
of the I. M. and that on August 17, 1895 he was allowed to have his said homestead
entry amended, by direction of the Honorable Secretary of the Interior. That your
affiant is informed that said Orr, has represented in his application for said amend-
ment that he went to the U. S. Land Office aforesaid, at the time ho made his original
entry (No. 3267) and '* applied to enter also lot 1 of Sec. 13 in township 11 N. of range
4 east I. M.*' That this affiant is informed and verily believes that said .Toseph C. Orr
never applied nor offered to enter said lot 1 of section 13 T. P. 11 N. of range 4 east,
until after he made his original entry as aforesaid. That this affiant made settle-
ment upon said tract during the mouth of August 1894, and about the same time
established his residence thereon. That said Orr, has resided upon and improved
the tract he originally entered and confined his improvements to the same, except
that he has built his fence across the line in one place, so as to enclose about a half
or three fourths of an acre of the tract in controversy.
That he has only occupied said tract by cutting and disposing of all the valuable
timber thereon, and has at no time disputed the right of this affiant to said tract
until after the amendment of his said entry was allowed as aforesaid, and that said
Orr has resided within about a quarter of a mile of this affiant during all of the time
he (affiant) resided upon and claimed said tract and was fully advised of the fact
that your affiant had entered and claimed said tract as his homestead. Wherefore.
He protests against the cancellation of his said homestead entry No. 8680, and asks
thdt a hearing be ordered and that this affiant may be allowed to prove the allega-
tions herein set forth, and to show that said Joseph C. Orr did not apply to enter the
tract in controversy until after date of his original entry.
On January 13, 1896, your office denied Hudson's application for a
bearing and held his entry for cancellation saying:
The application for amendment by Orr, reserved the land until the final disposition
thereof, and Hudson could acquire no rights thereto as against Orr. It is therefore
unnecessary to order a hearing, and the entry having been improperly allowed, is
thiH day held for cancellation.
Hudson appealed to this Department :
It is a well settled principle that a legal application to enter land, is while pending,
eijuivalent to actual entry, so far as the applicant's rights are concerned, and its
effect is to withdraw the land embraced therein from any other disposition, until
auch time as it may be finally acted upon. The fact that the application of appel-
lant was not an original, but only for amendment of a former entry to embrace the
land in dispute, does not alter the case (Mack Long, 15 L. D., 579).
Land covered by one entry, or by an application to enter by amend-
ment or otherwise, is not subject to another entry at the same time;
and an application to enter land not subject to entry at the time the
application is made, confers no rights upon an applicant. (Rumbley v.
Causey, 16 L. D., 266). A legal application to enter land subject to
entry, while pending, is equal to actual entry, so far as the applicant's
rights are concerned, and withdraws the land embraced therein from
any other disposition, until final action thereon. (Hamilton v. Harris,
18 L. D., 45 and Pfaff v. Williams, 4 L. D., 455).
Orr's application to enter by amendment the lot of land in contro-
versy, was filed and put on record on December 2, 1893. The lot was
432 DECISIONS RELATING TO THE PUBLIC LANDS.
thereby w ithdrawn from any other disposition. The act of the local
officers in permitting Hudson to make entry of the lot on May 3, 1894,
was beyond their authority, and Hudson acquired no rights thereby.
The fact that Mr. Watts, the clerk, was mistaken and misled Mr. Hud-
son as to the status of the tract, cannot impair the rights of Mr. Or.
The purpose of this proceeding against Mr. Hudsou is to remove from
the records his entry which was unlawfully made pendente lite^ and
which is inconsistent with the entry which the Department authorizwl
Orr to make of the same tract. Mr. Hudson, who acquired no interest
by his unlawful entry, cannot be permitted in this collateral proceed
ing to impeach the decision of the Department in Orrs case, to which
he, Hudson, was not a i)arty. The fai'ts alleged in his answer and
protest are not sufficient to entitle him to a hearing in this case.
Your office decision is hereby affirmed.
SETTLEMENT CLAIM-^SUCCESSFUL C'ONTESTAXT-
HiNE V, Cliff.
A settlement on land covered by the entry of another, confers no right ae against a
succesAfnl contestant who secures the cancellation of such entry.
Secretary Bliss to the Commissioner of the General Land Office^ May lU
(W. V. D.) 1897. (J. L. McC.)
On September 19, 1893, David A. Kittleman made homestead entry
for the NW. I of Sec. 26, T. 28 N., R. 1 W., Perry land district, O. T.
Twenty- seven days afterward — to wit, on October 16, 1893 — Meredith
A. Tarleton filed affidavit of contest against said entry, alleging prior
settlement. No action appears to have been taken on said affidavit
On June 4, 1894, Frank D. Cliflf filed affidavit of contest against said
entry on the ground of abandonment; and afterward an additional
affidavit of contest, charging that Tarleton had never established resi-
dence on the land.
This case was set for a hearing, at which time Cliflf appeared, but
both Kittleman and Tarleton defaulted.
From the testimony taken it appeared that the entryman, Kittleman,
had failed to establish residence on the tract, or to cultivate or improve
the same, and had abandoned it for more than six months prior to the
filing of the contest affidavit; and that Tarleton had never established
residence upon the land, although more than six months had passed
since he had filed an affidavit alleging prior settlement. The lo<'^l
officers therefore recommended the cancellation of Kittlemau's entry
and the dismissal of Tarleton's contest. From their decision no appeal
was taken, and on May 20, 1895, your office canceled Kittleman's entry.
On June 13, 1895, Cliff exercised the preference right earned by his
successful contest, and made homestead entry of the land.
DECLSIONS RELATING TO THE PUBLIC LANDS, 433
On July 10, 1895, Lewis P. Hine applied to make homestead entry of
the laud; but the local officers rejected his application because of con-
flict with CliflPs homestead entry, made June 13, 1895 {supra). Hine
appealed to your office, alleging that he was a settler upon the land
prior to the settlement of Cliff; and that the local officers should have
ordered a hearing to determine the fact as to priority. Your office, by
decision of March 13, 1896, held :
Although Hine alleges settlement on the tract on May 30, 1894, he made no attempt
to establish a claim to the land until Jnly 10, 1896 — fourteen months after the date
of settlement ; and by failing to assert his olaim within three months from such
settlement he lost all right he might have acquired thereunder:
Therefore your office refused his application for a hearing.
Hine has appealed to the Department. He contends, in substance,
that Cliff filed his contest against Kittleman within a few days after
Hiiie's settlemeut on the land, and within three months allowed him
(Hine) in which to place his application of record; that after the con-
test had been filed by Cliff, he (Hine) had no way of placing himself on
record prior to Cliff*; that an application by Hine for said land would
have been rejected on account of Kittleman's then existing entry, and
a contest for abandonment would have been held in abeyance until the
disposition of Cliff's contest for abandonment; that it was not until
Cliff made entry under his preference right that he (Hine) had an
opportunity under the rules to assert his claim, which he did by apply-
ing to make entry of the land, within a month after Cliff's entry; and
he asks that a hearing be ordered to determine, as between him and
Cliff, which was the prior settler.
It is clear that Hine, for the same reason that he could not have been
permitted to make entry of the land at the date when he went upon it
(because it was segregated by Kittleman's homestead entry), could not
make a legal settlement or establish a legal residence thereon while
said entry remained of record. (Turner v. Kobinson, 3 L. D., 562, and
many cases since).
After Cliff* had initiated contest against Kittleman, Hine's settlement
(whether made before or after the initiation of Cliff's contest) was sub-
ject to Cliff's preference right in case such contest should result in the
cancellation of the entry. When the entry was canceled as the result
of said contest, and Cliff made entry of the laud, Hine's settlement
(even conceding it to have been made earlier than that of Cliff) con-
ferred upon him no rights in the premises.
The decision of your office denying Hine's application for a hearing
is therefore affirmed.
10671— VOL 24 28
434 DECISIONS RELATING TO THE PUBLIC LANDS.
Habdino V. Moss.
Motion for review of departmental decision of February 13, 1897, U
L. D., leo, denied by Secretary Bliss, May 13, 1897.
TIMBER CnDXTTrRK APPLICATION -INDEMNITT WITHDRAWAL.
GOBDEB V. St. Paul, Minneapolis and Manitoba Bt. Co.
An application to make timber cnltore entry of land withdrawn for the benefit of &
railroad grant oonfen no right as against the grant or the government, and if
the land, so applied for, is subsequently restored to the public domain, after the
repeal of the timber culture law, there is no right in the applicant that brings
him within the protective terms of said repeal.
Secretary BltM to the Commissioner of the Qeneral Land Office^ May 13j
(W. V. D.) 1897. (W. A. E.)
The plaintiff in the case of Christian C. Girder r. St. Paul, Minne-
apolis and Manitoba Railroad Company has appealed from yonr office
decision of Janaary 5, 1895, holding for cancellation his timber cnltore
entry, allowed January 7, 1893, for the SE. J of the NE. J of Sec 35,
T. 125 N., B. 39 W., St. Clond, Minnesota, land district.
Said tract is within the indemnity limits of the grant for the benefit
of the main line of said road, the withdrawal on account of which was
made August 14, 1868. This withdrawal remained in force until May
22, 1891, when it was revoked (12 L. D., 541), under the authority of
section 4 of the act of Congress approved September 29, 1890 (26 Stat.,
496).
It is also within the indemnity limits of the grant for the benefit of
the St. Vincent Extension of said road, the withdrawal for which was
made February 6, 1872.
November 25, 1873, it was selected by the company on account of the
St. Vincent Extension grant. No losses were specified as a basis for
said selection, it not being required at that date, but on June 6, 1894,
a rearranged list was filed, in which losses were specified, tract for
tract.
November 21, 1876, said tract was claimed as swamp by the State of
Minnesota,
January 3, 1887, Christian C. Gorder tendered his timber culture
application for the land and said application was rejected for conflict
with the claim of the State.
Gorder appealed^; and a hearing was ordered to determine the char-
acter of the land. As a result of the hearing the claim of the State
was finally rejected by your office on September 9, 1892, and on Janu-
ary 7, 1893, Gorder was permitted to perfect his timber culture appli-
cation.
D£CI8ION8 RELATING TO THE PUBLIC LANDS. 435
It does not appear that in these proceedings between Gorder and the
State the raibroad company was made a party or notified of the action
of the local office and your office. The railroad was therefore not bound
or affected by those proceedings. While it is to be regretted that the
railroad claim was entirely overlooked, still it must be noted that
Gorder could not have hoi>ed to establish any right to the land as
against the railroad without making it a party to the proceeding.
On January 6, 1895, however, your office held Gorder's entry for
cancellation, and from this action he has appealed.
In the case of Sachs v. Hastings and Dakota Railway Company
(21 L. D., 298), it was held that an application to make timber culture
entry of land embraced within a railroad indemnity withdrawal con-
fers no right as against the grant or the government, and that where
land covered by such an application is restored to the public domain,
after the repeal of the timber culture law^ there is no right in the
applicant that can be recognized as within the protective terms of said
repeal.
If then, as argued by attorney for Gorder, the withdrawal of this
land for the benefit of the main line of said road was a bar to its selec-
tion on behalf of the St. Vincent Extension and rendered that selection
illegal, said withdrawal was also a bar to the allowance of Gorder's
timber culture application. Whether or not, therefore, the selection
on behalf of the St. Vincent Extension is valid, Gorder's timber culture
entry is clearly illegal and must be canceled.
Your office decision is affirmed.
l>£9iERT LiANI> CONTEST— STATUTORY TXFR OF ENTRY.
BOSCOE ET AL. V, FOSTBB ET AL.
The period ooyered by a departmental order suspending a desert land entry must be
excluded in computing the time within which reclamation must be effected and
final proof made.
The act of March 3, 1891, amending the desert land act of March 3, 1877, operates
to confer upon entry men under the original act, at their option, the additional
time for effecting reclamation provided for in said amendatory act, and an entry
occupying such status, on which final proof has not been submitted, is within
the provisions of the act of July 26^ 1894, extending the time for making final
proof and payment.
Secretary Bliss to the Commissioner of the General Land Office, May 13j
(W. V. D.) 1897. (W. M. W.)
Your office, by letter of January 27, 1897, rejected the application of
A. O. Boscoe and Joseph P. Carroll to contest the desert-land entry of
James A. Foster for the K. ^ of the NW. J, the SE. 4 of the NW. i,
the S. I of the SW. J, and the KE. J of the SW. J, of Sec. 28, T. 26 S.,
B. 25 E., Yisalia land district, Oalifornia.
[
436 DECISIONS RELATING TO THE PUBLIC LANDS.
Your office has forwarded the record porsaant to departmental order
of January 29, 1896.
The entry was made by said James A. Foster on April 19, 1877. He
died on April 21, 1886, haviug devised all his interest in said entry to
his widow, Janie A. Foster — ^naming her in his will as ezecntrix.
This entry (with many others made at the Visalia, California, laud
office) was suspended by departmental order of September 12, 1877;
which suspension was revoked January 12, 1891. United States r.
Haggin, 12 L. D., 34.
On February 3, 1896, A. G. Boscoe and J. P. Carroll applied to coq-
test Foster's entry, alleging failure to reclaim the land and submit
final proof in the time allowed by law.
On March 14, 1896, Boscoe and Carroll filed a second complaint, in
which they alleged that on August 21, 1893, due notice of the revo-
cation of the suspension of said entry was given the eutryman by
registered mail; they also alleged that three years, exclusive of the
suspended period, had elapsed and that the land had not been
reclaimed. The local officers held these two affidavits of contest pend-
ing the disposition of prior contests.
On April 18, 1896, Janie A. Foster assigned her interest in the land
to Omar Phillips. On May 9, 1896, Phillips submitted final proof in
support of said entry. On May IS, 1896, the local officers passed npon
the final proof, and found :
That the land has been reclaimed, and that the water right is sufficient, bat we
refuse to accept fiuul payment and issue final receipt thereon, for the reason that
there are contests pendinjr against said entry.
On May 22, 1890, Carroll filed a supplemental affidavit, in which he
alleged, on behalf of himself and Boscoe, that Phillips's final proof
fails to show that the land has been sufficiently irrigated, and that
sufficient water right has been secured. This affidavit was rejected
by the local officers on June 4, 1896,
because the allegations attack the final proof, which said proof has been passed
upon and accepted by this office, and the same is held pending disposition of con-
tests against original entry.
'No action by the local officers appears to have been taken on said
affidavits, filed February 3, and March 14, 1896, by Carroll and Eoscoe.
Carroll and Eoscoe appealed to your office.
On November 30, 1896, your office directed the local officers torei)ort
what contests they referred to as pending at the time the first two
contest affidavits of Carroll and Roscoe were filed, and at the tiiue
officers passed on said final proof.
On December 9, 1896, the register and receiver reported that said
prior contests (not naming the parties who had initiated them)
have all been disposed of, and there is now nothing in this office haTing prece-
dence over the original contest of Roscoe ei ah
On January 27, 1897, your office held that the charges made in plain-
J
DECISIONS RELATING TO THE PUBLIC LANDS. 437
tiffs' first and second affidavits of contest, of failure to reclaim the land
in the time allowed bylaw, are premature; and respecting the soffi-
ciency of the charges made in their third affidavit, it was found :
That the Calloway canal passes within two miles of the land and fnmishes water
for irrigation. The water is conveyed to the land by three ditches, sixteen feet
wide, and distributed by lateral ditches. VTater was conveyed upon the land in !
1880. The land has been sufficiently irrigated since 1885. By reason of the irriga-
tion the land is capable of producing in paying quantities such crops as are grown
in that vicinity. There are no high points to which water can not be conveyed.
Accompanying the proof is an abstract of water right, showing that said Calloway
canal was constructed by a corporation organized for the purpose in 1877, and that
said three ditches conveying water from the canal to the land were constructed by
said corporation, and sufficient water conveyed to the land by virtue of an agree-
ment entered into with said Foster by which he was to have perpetual water right
on payment to said corporation of his proportionate .share of the whole cost of con-
struction of the canal. All the water rights acquired by Foster were conveyed to
Phillips by said devisee.
It seems to me that the proof is satisfactory in its showing of reclamation of the
land and of water right.
The charges found in the three affidavits by Roscoe and Carroll do not constitute
a cause of action, therefore, hearing on their petitions is denied.
Tonr office also disposed of the application of John G. Collins to con-
test Foster's entry adverse to Collins, and, inasmuch as he has not
appealed from your office decision, there is no question here relating to
his rights.
Eoscoe and Carroll appeal.
The first specification of error alleges that your office erred in holding
that the first two affidavits of contest filed by plaintifis were premature.
The theory upon which this specification and others seem to be based
is that the time for reclaiming the land, and making final proof and
payment therefor, under the desert act of 1877 (19 Stat., 377), had
expired at the date said affidavits of contest were .filed, and also that
the acts of July 29, 1894 (28 Stat., 123), and August 4, 1894 (28 Stat.,
226), have no application to desert entries under the act of 1877. It is
further claimed that your office erred in deciding that the period of
suspension should be excluded from the three years in which the entry-
man should submit his proof under the act of 1877.
In United States v, Haggin, 12 L. D.., 34, the suspension of this entry,
made September 12, 1877, was revoked, and it was said:
The time between the date when said order became effective, and the date of
notice of its revocation, will be excluded from the time within which the entryman
is required to make proof of his compliance with the requirements of the law.
In Famell et al. v. Brown (on review), 21 L. D., 394, and White v.
Dodge, Id., 494, it was held that on the revocation of an order suspend-
ing a desert entry time will not run against the entryman until due
service of notice upon him of such revocation.
There is nothing in the record before the Department in this case to
show that the entryman or his assignee was ever served with notice of
438 DEasioNs relating to the pubuc lakds.
fhe revocatioii of the saspeiiBioii of said entry; but plaintiffs idlegein
fheir amended affidavit of contest, filed March 14, 1896, that the entry-
man was duly notified of the revocation of the suspension on August
21, 1893, and for the purposes of this opinion said date will be consid-
ered as the time when the entryman was duly notified of the revocation
of the suspension of his entry. Under the act of 1877 the entrymau
might make his proof of reclamation at any time within three years
after filing his declaration. This entry was made on April 19, 1877; it
was suspended September 12th of that year, so that four months and
twenty-three days of the three years had run at date of suspension.
After the date of suspension the time did not begin to run against said
entry until the entryman was duly notified of the revocation, whicfa^
as before indicated, will be assumed to have occurred on the 21st day
of August, 1893 ; from that date to February 3, 1896, when plaintiflis'
first affidavit of contest was filed, two years, five months and twelve
days elapsed after notice of suspension was served on the entryman;
this time, added to the four months and twenty-three days that had
run before the suspension, makes in all two years, ten months and five
days that had expired at the date plaintiffs' first affidavit of contest
was filed. The plaintiffs' second or amended affidavit of contest was
filed one month and eleven days after the first, and, of course, related
back to the date of the filing of the original, to which it was amend-
atory.
For the sake of argument, it may be conceded that the date of the
filing of the amendatory affidavit should govern in computing the life
of the entry, and still the contention of appellants would be witliout
force, for at the time said affidavit was filed only two years, eleven
months and sixteen days, of the three years allowed, had expired, and
the contest was prematurely brought under the act of 1877, independent
of the acts of 1894. But, if the time allowed by the act of 1877 had
expired, the act of July 26, 1894, supray extended the time for making
final proof and payment, for
all lands located under the homestead and desert land laws of the United States,
proof and payment of which has not yet heen made .... for the period of one year
ftom the time proof and payment would become dne under existing laws.
The second section of the act of March 3, 1891 (26 Stat., 1095), added
four sections to the desert laud act of 1877. The 6th section so added
to the desert act provides that any valid rights theretofore accrued
under the act of 1877 should not be affected,
Imt all bona fide claims heretofore lawfully initiated may be perfected, upon dae
compliance with the provisions of said act, .... ; or said claims, at the option of
the claimant, may be perfected and patented under the provisions of said act.
Under this act Foster's entry was an entry under "existing laws.'^
It is clear that plaintiffs' first two contest affidavits, charging a flEul-
ure to reclaim the land within the time allowed by law, fail to state
DECISIONS RELATING TO THE PUBUO LANDS. 439
flMts sufficient to constitate a caase of action, and there was no error
in your office decision so holding.
In yiew of this conclusion, it becomes unnecessary to determine
whether the act of August 4, 1894, supraj applies to an entry made
under the act of 1877, when the entryman does not elect to proceed
under the act of 1891, supra.
The final proof was made and filed within the time allowed by law.
I concur with your office in its conclusion that the final proof shows
compliance with the requirement of the desert law in every material
respect, including the reclamation of the land embraced in said entry.
On June 30, 1896, one John O. Collins applied to contest the entry
in question, on the identical grounds as set forth in Boscoe and Car-
roll's affidavit of contest. Your office correctly dismissed Collins's
complaint.
Since the decision of your office was rendered, Chesley M. Carter (on
January 18, 1897,) and George M. Phillips (on February 10, 1897,) have
filed protests against the final proof submitted by Omar Phillips. In
order to avoid circuity of action and consequent delay, it will be proper
for the Department to consider their protests, although they have not
been acted npon by your office. (Riser v. Keech et al.y 7 L. D., 25) and
many cases since.)
The protests of Carter and Phillips involve substantially the same
charges as have hereinbefore been considered. They are not sufficient
to justify the Department in ordering a hearing, and are therefore
dismissed.
liAILBOAI> GRAJe^T-INDEMNrrY SEL.ECTION-8ETTL.EMEXT RIGHT.
MULLEB V. NOBTHEBN PACIFIC R. R. CO.
Indemnity selectiona accompanied by designation of loss in bulk, made prior to the
specific departmental requirement that lost lands should be arranged tract for
tract with the lands selected, operate to protect the company as against subse-
quent applications to enter, made prior to said requirement, and the rearrange-
ment of losses in accordance therewith.
^ The right of a qualified settler who is in the possession of land to perfect title
thereto, is not defeated by an intervening indemnity selection.
Secretary Bliss to the Commissioner of the General Land Office, May Idj
(W. V. D.) 1897. (F. W. C.)
The Northern Pacific Railroad Company has appealed from your
office decision of April 26, 1895, holding for cancellation its indemnity
selection covering the W. J NB. J and W. i SE. J, Sec. 15, T. 146 N.,
R. 86 W.^ Bismarck land district, North Dakota, with a view to the
allowance of the homestead application of Frederick Mnller.
This tract is within the indemnity limits of the grant for said com-
pany and was included in list of selections filed July 14, 1890 (List
440 PECI8I0NS BELATIKQ TO THE PUBLIC LAKDS.
No. 50). This list contained a specification of losses as bases for the
selections but the same was not arrauged tract for tract with the
selections.
The losses were of nnsarveyed lands within the diminished Crow
Indian reservation.
Under the orders issued in accordance with the directions contained
in the decision in the case of La Bar v. Northern Pacific Railroad Com-
pany (17 L. D.y 406), the company filed its rearranged list on May
14, 1894.
On July 23, 1891, Muller tendered a homestead application for this
land, accompanied by affidavits in which he alleged settlement npon
the land in the spring of 1889, and that he, together with his family,
have continuously resided thereon since that time.
Said application was, by the local officers, rejected for conflict with
the selection by the company from which action Muller appealed.
From the record transmitted, it further appears that during the
pendency of said appeal, to wit, on May 24, 1894, Muller filed a contest
against the company's selection alleging substantially the same as con-
tained in his affidavits filed in support of his homestead applicatioiL
Upon s^d contest hearing was set for December 10, 1894, and service
duly made.
At the appointed time both parties appeared and after the witnesses
offered by Muller had been examined and cross-examined by the com-
pany, the case was closed, the company offering no testimony.
An examination of this testimony clearly sustains the finding of the
local officers, which is a« follows:
That said contestant settled upon said W. i of N£. i and W. i of S£. i, Sec. 15,
T. 146 N.; of R. 86 W., in the fall of 1887, that himself and family have continu-
ously resided thereon ever since, that he has yearly subsequently to 1889 raised
crops thereon, that his improvements amount to the value of $585, that the said
contestant was a qnalifled homestead entryman when he Fettled npon said tract,
that he settled upon said tract with the view of acquiring the same as a homestead
and that he has maintained his residence thereon since with the like intention.
The record of this hearing had not been received at your office at
the time of the rendition of your decision appealed from (April 26,
1895), in which it was held, in effect, that the company's selection list
of July 14, 1890, was not a valid selection because the losses were not
arranged tract for tract with the selected lands, and, therefore, that
said selection was no bar to the allowance of Muller^s homestead appli-
cation tendered, as before stated, on July 23, 1891.
This is clearly in conflict with the ruling made in the case of the St
Paul, Minneapolis and Manitoba Ry. Co. v. Lambeck (22 L. D., 202), in
which it was held that —
Indemnity selections accompanied by designation of loss in bulk, made prior to
the specific departmental requirement that lost lands should be arranged tract for
tract with the lands selected, operate to protect the right of the company as against
subsequent applications to enter, made prior to said requirement, and the rearraoge-
meut of losses in accordance therewith. (Syllabus.)
DECISIONS RELATING TO THE PUBLIC LANDS. 441
a
Upon the record before me it must therefore be held that the com-
pany's rights under its selection date as of the presentation of its list
July 14, 1890.
The question then arises, had Mnller such a claim to the land at that
date as would bar the selection t
While it is true the hearing, hereinbefore referred to, was held during
the pendency of Muller's appeal from the rejection of his application,
yet^ as the company appeared, without objection, I can see no good
reason for further hearing, and the allegations of settlement and resi-
dence made by MuUer in support of his claim are considered as
sustained.
The land was, therefore, in the occupation and possession of MuUer,
a qualified settler, at the date of selection, and such selection can not
bar the consummation of his claim which he lias sought to perfect by
the tender of his application under consideration.
For this reason your office decision is affirmed, and upon completion
of entry by Muller the company's selection will be canceled.
RAILROAI) GRANT-RES .JUDICATA— ACT OF MARCH 8, 1887.
Harris v. Northern Pacific K. E. Co.
A (locision of tho Department, in accordance with the rulings then in force, that a
certain tract of land passed under a railroad grant, does not, in view of the pro-
visions of the act of March 3, 1887, requiring the adjustment of railroad grants
'' in accordance with the decisions of the supreme court," preclude subsequent
departmental action, on the application of a third party, under the later deci-
sions of said court.
Secretary Bliss to the Oommissioner of the General Land Office, May 18,
(W. V. D.) 1897. (J. L. McC.)
The Northern Pacific Railroad Company has appealed from the
decision of yonr ofQce, dated August 3, 1895, rejecting its claim to the
N. i of the NW. i of Sec. 23, T. 4 N., R. 10 W., Helena land district,
Montana.
Said land is within the primary limits of the grant to the railroad
company named. Oii April 16, 1872, one Isaac Harris filed pre-emption
declaratory statement for the same, inclnding also the S. ^ of the SW.
i of Sec. 14, adjacent. The latter eighty acres he afterward entered
under the homestead law, and applied to make additional homestead
entry of the eighty acres in the odd section — which was allowed.
Thereupon a contest arose between him and the company, the details
of which are fully set forth in the departmental decision of April 10,
1891, in said case (12 L. D., 351) ; and need not be herein repeated.
The Department )ield therein that the tract in the odd section inured
to the company.
442 BECIBIONS RELATING TO THE PUBLIC LAND&
Said decision was in strict accordance witii departmental ratings at
that time prevailing. Since then, however, the United States supreme
court has rendered a decision in the case of Whitney r. Tayktr (15S
n. S., 85), to the effect that an uncanceled pre-emption filing of reeord
at the date when a railroad grant becomes effective excepts the land
covered thereby from the operation of the grant, even though at sach
time the statutory life of the filing has expired. Said supreme court
decision vitally affects the case now under consideration.
At the date when the withdrawal upon general route became effective
(February 21, 1872), and when the map of definite location was filed
(July 6, 1882), the tract was embraced in the pre-emption declaratory
statement of one Bernhard H. Dudden, filed January 24, 1872, and
still uncanceled and of record on the books of your office. Under the
ruling in said Whitney-Taylor c^ise, therefore, the land was excepted
firom the operation of the grant.
Isaac Harris, the homestead claimant in the case decided by tbe
Department on April 10, 1891 (supra)^ is dead; and his wife, Mary
Harris, now applies to enter the land under the homestead law.
The company contends that, inasmuch as the Department, on April
10, 1891, awarded the lot to it, the matter is res judicataj and can not
be reopened; that
Lsaao Harris's homestead entry for this land having been canceled in 1891, pamiiant
to the decision of the Secretary, it is not competent for the Commissioner to allow
his widow, Mary Harris, to offer proof upon said canceled entry, and to secure the
issuance of patent thereon.
The above is not quite an accurate statement of the facts. Isaac
Harrises additional homestead claim is not in question here. Mrs.
Harris is not seeking to secure the issuance of patent upon her hus-
band's canceled entry. She is applying to enter in her own right cer-
tain lands, which under the decisions of the supreme court cannot be
held to have passed to the company under its grant, and must therefore
be treated as public lands subject to entry by any qualified applicant.
Congress by act of March 3, 1887 (24 Stat., 556) has provided that
certain railroad grants shall be adjusted by the Secretary of the Inte-
rior, << in accordance with the decisions of the supreme court." The
fact that the Department has at some time heretofore held that the
land here in controversy had passed to the railroad company, does not
prevent its now adjudicating the new question that has arisen upon
Mrs. Harrises application to enter, in accordance with the decision of
the supreme court in the case of Whitney v. Taylor («i«pra).
Your office letter of August 3, 1895, {Hupra) holding that the land did
not inure to the railroad company, was in direct contravention of the
departmental decision of April 10, 1891 (supra). While the Department
possesses authority by virtue of the act of March 3, 1887 (above cited),
to take action in the case irrespective of its former decision awarding
the land to the railroad company, your office had no such authority and
DECISIONS RELATING TO THE PUBLIC LANDS. 443
jorisdictioD. Hence your office letter has been considered simply in the
light of a recommendation. In such recommendation, however, I con-
cur, and hereby direct that the claim of the company be rejected, and
that Mrs. Harris's application to make homestead entry of the land be
allowed, unless some other reason 'to the contrary shall appear.
TIMBER CXTLTURE -TTNAX PROOF—ACT OF MARCH 4, 1806.
John W. Burns.
The act of March 4, 1896, relieves a timber cnltnre entryman fh>m the requirement
of appearing before the local o£Qce, or an officer designated by statute within the
county in which the land is situated, on the submission of final proof, but does
not modify prior legislation or regulations thereunder with respect to the testi-
mony of his witnesses.
Secretary Bliss to the Commissioner of the General Land Office^ May 16y
( W. Y. D.) 1697. (G. C. R.)
John W. Bums has appealed from your office decision of February
15y 1896, which affirms the action of the register and receiver in r^ect-
ing the final proof, offered November 5, 1895, in support of his timber
culture entry (Garden City series), made June 4, 1885, for the SW. ^ of
Sec. 22, T. 31 S., R. 36 W., Dodge City, Kansas.
The final proof was rejected because the same was not taken before
the register and receiver, or before an officer within the county lawhich
the land is situated.
The proof appears to have been taken before J. W. Johnson, judge of
the probate court in Harvey county, Kansas, about two hundred miles
distant from the county in which the land lies.
Mr. Burns in his appeal alleges no specific error, but contends that
the law ''does not contemplate legal or moral impossibilities;" that
the x>eculiar state of affairs
in the present desolate and almost deserted counties of western Kansas should not
deprive the bona fide claimant and cnltivator of the timber onltnre claims of his
moral right to enter the tract, even though the wise provisions of the General Land
Office be disregarded.
The act approved May 26, 1890 (26 Stat, 121), provides as follows:
That the proof of settlement, residence, occupation, cultivation, irrigation, or
reclamation, the affidavit of non-alienation, the oath of allegiance, and all other
affidavito required to be made under the homestead, pre-emption, timber culture,
and desert land laws, may be made before any commissioner of the United States
circuit court, or before the judge or clerk of any court of record of the county or
parish in which the lands are situated; and the proof, affidavit, and oath, when so
made and duly subscribed, shall have the same force and e£fect as if made before
the register and receiver, when transmitted to them, with the fee and commissions
aUowed and required by law.
The proof, as shown above, was taken before a judge of a probate
court in Kimsas, which court, by section 1, chapter 20 (p. 325), of the
444 DECISIONS RELATING TO THE PUBLIC LANDS.
compiled laws of Kansas (1881), is declared to be a conrt of record,
and in this respect met tbe reqairements of the statate above qaoted
Bat at the time it was takeo (1895) it did not meet the requirements
of the statate or the regulations thereunder, in that it was not taken
before the register and receiver or before a commissioner of the United
States circuit court having jurisdiction over the county in which the
land is situated, or before a judge or clerk of any court of record in
such county. Edward Bowker, 11 L. D., 361.
The act approved March 4, 1896 (29 Stat., 43), provides:
That timber- oaltnre claimants shall not be required, in making final proof, to
appear at the land office to which proof is to be presented or before au officer desig-
nated by the act of May twenty -sixth, eighteen hnndred and ninety^ within the
county in which the land is situated; but such claimant may have his or her per-
sonnl evidence taken by a United States court commissioner or a clerk of any court
of record under such rules and regulations as the Secretary of the Interior may
prescribe.
This act was passed after Burns made his final proof, but, under the
rule laid down in the case of S. Lizzie Guernsey (22 L. D., 526), he is
entitled to its benefits, and his personal evidence, taken before any
ofBcer named in the act of 1890 (8upra)j in any part of the United
States, might be accepted; but this does not relieve him from the
necessity of conforming to the statute and regulations thereunder in
respect to his proof witnesses. Apart from the claimant's personal
testimony, the regulations in regard to the manner of taking final
proof in timber culture cases have not been changed.
The decision appealed from is accordingly aflQrmed.
RAILROAD GRANT-INDEMNITY SELECTION-DESIGNATION OF TOSS.
Page v. Northern Pacific R. R. Co.
Indemnity selections, unaccompanied by designation of loss^ made prior to the
departmental order waiving such designation, are protected by said order in the
absence of any intervening adverse chiim.
On tbe rearrangement of an indemnity list, based on losses alleged in bulk, so that
the lands selected, and the losses specified, shall correspond tract for tract, the
rights of the company date as of the presentation of the first list, so far as tbe
selections and losses are the same.
Indemnity selections of the Northern Pacific resting on alleged losses east of Superior
City, regular and legal under the construction of the grant at the time when
made, should be protected under the changed construction of the grant, with
due opportunity to assign new bases, as against intervening adverse claims.
Indemnity selections, made under the departmental order waiving specifications of
loss, are valid, and while of record a bar to the allowanC'e of adverse claims.
Secretary Bliss to the Oommissioner of the General Land Office^ May 18j
(W, V. D.) 1897. (F. W. C.)
With your office letter of April 23, 1897, was forwarded a i>etitioD,
filed on behalf of Thomas M. Page, in which it is moved that the
approval given by my predecessor (Mr. Secretary Francis), on March
DECISIONS RELATING TO THE PUBLIC LANDS. 445
2, 1897, to indemnity lists No. 50 and No. 56, covering lands within the
Fargo and Bismarck land districts, North Dakota, be revoked and
hearing ordered, with a view to the establishment of the claim of Thomas
M. Page to the SW. J of Sec. 5, T. 146 N., E. 67 W.
Similar petitions are filed on behalf of Joshaa Lemert as to the SW..
J, Sec. 31, T. 147 N., B. 67 W. ; Frank B. Lemert, S W. J Sec. 31, T. 147
N., B. 67 W.; B. D. Lemert, NE. J, Sec. 31, T. 147 N., B. 67 W.; Harry
A. Page, NW. J, Sec. 5, T. 146 N., B. 67 W. j Jennie F. Bogers, NE. J
Sec. 5, T. 146 N., B. 67 W.; Burton L. Bussell, SE. J Sec. 5, T. 146 N.,
B. 67 W. ; Edw. I. Walton, SW. i Sec. 26, T. 147 N., B. 68 W.
The groonds upon which these petitions are based are in all impor-
tant particulars the same, so it is necessary only that one be considered,
the action tipon all to be governed thereby.
The case of Thomas M. Page is selected by the attorneys for the
petitioners, and the following facts are gathered from the arguments
filed in support of the petitions.
The land involved is within the indemnity limits of the grant for said
company and was included in list of selections filed May 14, 1883.
This list was not accompanied by a designation of losses as bases for
the selections, but as no adverse claim is alleged to have attached to
the land prior to the promulgation of departmental order of May 28,
1883, exempting this company from the requirement of specifying losses
when making its indemnity selections, the same was protected by said
order. Sawyer r. Northern Pacific B. B. Co., 12 L. D., 448.
On October 14, 1887, the company filed a supplemental list, contain-
ing losses in amount equal to the lands selected in list of May 14, 1883,
but not arranged tract for tract with the selected lands. Are-arranged
list was filed on March 3, 1892, in which the losses were arranged tract for
tract with the selected lands. It is urged that this latter list did not
contain all the lands assigned as bases in the list of October 14, 1887,
and should therefore be treated as a new selection on* account of the
variance.
This contention seems to be based upon the decision in the case of
La Bar v. Northern Pacific B. B. Co. (17 L. D., 406), but said decision
will not support it. In that case the second list was not only reduced,
but different losses were substituted, and like the first list the losses
were not arranged tract for tract with the selected lands. On account
of this variance in the losses designated, and because the extent of the
new selection could not be ascertained, the same not being arranged
tract for tract, it was held that the second list was a new selection.
Supi>ose the original list in which the losses were not arranged con-
tained an amount of lost lands in excess of the selections, or that some,
of the selections had been canceled after the filing of the first list and
before re-arrangement tract for tract, necessarily some of the losses
contained in the first list would not be used in the re-arranged list, but
the variance should not avoid the entire list, as it was a mere reduction.
446 DECISIONS RELATING TO THE PUBLIC LANDS.
If the latter list contains new losses, to that extent it is a new selec-
tion, but, so &r as the selections and losses are the same, the rights of
the company mnst date as of the presentation of the first list.
The losses assigned in the lists of October 14, 1887, and March 3,
1892, were of lands in the State of Wisconsin, which were not sufficient
to snpport the selection after departmental decision of November 13,
1895 (21 L. D., 412), in which it was held that the grant for this com-
pany did not extend east of Superior, Wisconsin.
It is presumed that, acting under directions given in said decision,
the company thereafter specified a new basis for its selections in qnes-
tion^ for the clear lists submitted and approved on March 2, 1897, show
losses within the Grow Indian reservation, Montana.
The x>etition does not question the regularity or sufficiency of this
later designation.
Page makes affidavit to the following facts relative to his claim to this
land and the steps taken to secure the allowance of the same:
Thomas M. Page, being first duly sworn, says that he made settlement and estab-
lished residence npon the SW. i Sec. 5, Twp. 146 N., range 67 west, in the month of
June, 1885, and ever since has resided npon said tract, and has continued to improve
and cnltivate the said tract; that he has a good house, bam, and granary npon said
land; that he has 80 acres of said tract under cnltivation, and that his said improTe-
ments are of the value of about $2,000; that he has resided continuously upon
said tract since the month of June, 1885 ; that on the 18th of May, 1895, he made
homestead application for said tract and paid the fees and commissions required by
law; that he was at that time and is now qualified to make homestead entry; that
the local office at Bismarck rejected his said application, because of conflict with
selection of the Northern Pacific Railroad Company; that on June 16, 1895, he ap-
pealed from the said rejection to the Hon. Commissioner ; that on August 17, 1896,
his attorney received by regular mail the rejection of said application by the Hon.
Commissioner; that on August 21, 1896, he appealed to the Hon. Secretary of the
Interior. That he had done all things necessary to perfect his entry for said tract,
and now asks to be allowed to intervene in the matter of the selection of said tract
by the Northern Pacific Railroad Company, and he respectfully asks that the Hon.
Secretary of the Interior may exercise his supervisory powers and protect his rights
as a settler and grant to him such relief as in law or in equity he may be entitled to.
This affidavit is made in good faith and is made for the purposes above set forth.
The petition alleges that your office refused to receive the appeal
from the decision referred to iu said affidavit, because not served upon
the proper representative of the company, so that said appeal has
never been transmitted to this Department.
As thus presented the case is in all important particulars similar to
that of Gamble v. Northern Pacific R. R. Co. (23 L, D., 351), except
that the lauds considered in that case had not been approved by the
Secretary of the luterior, and that Gamble did not allege settlement
prior to his application, tendered on March 20, 1895. In said case it
was held :
Indemnity selections of the Northern Pacific resting on alleged losses east of
Superior City, regular and legal under the existing construction of the grant at the
time when mado; should be protected tinder the changed construction of the grant,
DECISIONS BELATINO TO THE PUBLIC LANDS. 447
with due oppoitanity to assign new bases, as against intervening adverse claims.
(Syllabus.)
Belative to the approval^ it might be said that on March 3, 1897^ the
day following the approval of the selection, Mr. Secretary Francis
directed your office to suspend the issue of patents upon said approval
as to the tracts here in question.
Some question might be raised as to the authority to proceed with
hearing in this case after the approval, but for the reasons hereinafter
given I deem it unnecessary to consider that question at this time.
Page urges that the selection list of October 14, 1887, was not a com-
pliance with the circular of August 4, 1885 (4 L. D.^ dO), because the
losses were not arranged tract for tract, and that the purpose of said
circular was to revoke the order of May 28, 1883, so that his rights as
a settler on October 14, 1887, take precedence over the selection of
October 14, 1887, and all later selections.
The circular of August 4, 1885 (supra), so far as it referred to selec-
tions already made, provides as follows:
Where indemnity selections have heretofore been made without specification of
losses, you will require the companies to designate the deficiencies for which such
iudemnity is to be applied before further selections are allowed.
This identical question was presented in the case of O'Brien v. ]N'orth-
em Pacific B. B. Go. (22 L. D., 135), in which it was held (syllabus) :
Indemity selections made under the departmental order waiving specification of
loss are valid, and while of record a bar to the allowance of adverse claims. A list
in bulk of lost lands filed thereafter in support of such selections does not invali-
date the same, nor can a subsequent rearrangement of said list, tract for tract, to
correspond witli the selections, be regarded as an abandonment of the company's
right under it« original action.
To the same effect is the decision in the case of St. Paul, Minneapo-
lis and Manitoba By. Co. v. Lambeck (id., 202).
After a most careful consideration of the petition and argument filed
in support of the alleged superior claim of Page over that of the com-
pany under its selections of this land as indemnity on account of its
grant, I must hold that no such showing has been made as would war-
rant the recognition of his right as against the selection, if the facts as
alleged were proven at a hearing, and have therefore to deny his peti-
tion and direct that patent issue upon the approval heretofore given of
the company's selection.
Glover bt al. v. Swabts.
Motion for review of departmental decision of December 15, 1896,
23 L. D., 480, aiid for rehearing, denied by Secretary Bliss May 18,
1897.
448 DECISIONS RELATING TO THE PUBLIC LANLrf*
TIMBER CULTURE CONTEST-ACT OF MARCH 3, 1893.
Kirk r. Brooks.
Under the amendntory provisious of the act of March 3, 1893, the failnre of a tim-
ber cnltnre entrymany who has complied with the law for the period of eight
years from date of entry, to continue such compliance with law, will not defe^it
his right to a patent, though he may not hare succeeded in securing a growth
of trees.
Secretary Bliss to the Commissioner of the General Land Office, May IS,
(W. V. D.) 1897. (C. J. G.)
This controversy baa reference to the N. J of the XW. J, the SE. J
of the NW, i and the NW. i of the NB. i of Sec, 26, T. 10 S., K. 27
W., Wa Keeney land district, Kansas.
On May 8, 1884, George M, Brooks made timber culture entry for
said tract, and on May 2, 1895, Andrew Ivirk filed an affidavit of con-
test against said entry.
A hearing was duly had and the local office rendered decision in
favor of the contestant, recommending that the entry be canceled.
An appeal was taken to your office, where, under date of Febniary
7, 1896, the said decision of the local office was reversed and the con-
test dismissed.
A further appeal brings the case before this Department.
The evidence satisfactorily shows that the contestee in good faith
planted and cultivated trees or tree seeds on the land in question for
eight years from date of entry, and it was stipulated by the parties to
this controversy that the contestee was engaged in the planting of
trees or tree seeds for the eighth year; but that no trees, tree seeds or
cuttings were planted on said land after the expiration of the eiglitli
year of said entry. The question therefore arises whether he is entitled,
under the act of March 3, 1893 (27 Stat., 693), amending the act of
March 3, 1891 (26 Stat., 1095), to have his final proof accepted and
patent issued, nothwithstauding his admitted failure to plant and cul>
tivate his claim since the expiration of said eight years and up to date
of submitting said final proof.
The local office held that
claimant having failed to procure a growth of timber it became his duty to faithfully
continue in his efforts until rewarded with success or until such time as he coold
offer proof for his land It was held in the case of Cassady r. Eiteljor^'s
heirs, 18 L. D., 235, that compliance with the law must continue up to date of proof.
As previously stated, your office overruled this opinion, holding tbat
under the act of March 3, 1893 {supra)^
where a claimant has complied with the law for eight years to get a growth of trefs
upon the land, notwithstanding he may have failed in so doing, he has nevertfaelei^^
earned his patent. This being so, an entry is not liable to contest where the entry-
man has compUed with the law for eight years for any subsequent failure to plant
or replant although he may not have succeeded in obtaining a growth of trees.
DECISIONS RELATING TO THE PUBLIC LANDS. 449
It is readily seen that it becomes of iinportauce, iu construing the
act of March 3, 1893 {suprii)^ to ascertain from what time the requisite
eight years of cultivation are to be computed, whether from date of
entry, from date the trees, seeds, or cuttings are planted, or imme-
diately preceding the time final proof may be submitted. All acts
having reference to timber culture, except the original act which
required ten years, provide for the issue of final certificate or x>atent at
the expiration of eight years from date of entry.
Paragraph 22, Circular June 27, 1887 (6 L. D., 284), stated that,
in computiDg the period of cultivation the time raus from the date when the total
number of trees, seeds, or cuttings required by the act are planted.
Prior to that date the time allowed for preparation of the land and
planting the trees was treated as forming i>art of the requisite eight
years of cultivation. John M, Lindback (9 L. D., 284) ; Christian Isaak
(Id., 624); Jacob E. English (10 L.D.,409); William Thompson (Id.,
501). In the departmental instructions of July 16, 1889 (9 L. D., 86),
it was held that the period of cultivation should be computed under
the mle in force at the time the entry was made. As the contestee in
the case at bar made his entry on May 8, 1884, he would therefore be
entitled, under the said instructions, to the benefit of the rules in force
prior to June 27, 1887. In the case of Mary R. Leonard (9 L. D., 189)
it was held that
a departmental construction of a statute, until revoked or overruled, has all the
force and effect of law, and acts performed thereunder are entitled to protection.
The first section of the act of March 3, 1891, repealed the timber
culture laws with certain provisos. The third and fourth provisos
thereof are as follows:
That in computing the period of cultivation the fcime shall run from the date of
t-Dtry, if the necessary acts of cultivation were performed within the proper time.
That the preparation of the land and the planting of trees shall be construed as
acts of cultivation, and the time authorized to be so employed shall be computed
a.s part of the eight years of cultivation required by statute.
This jict, it will be observed, treated the time employed in prei)ara-
tiou of the land and the planting of trees as forming part of the requi-
site eight years of cultivation. But at the same time the said act left
unrepealed one of the conditions of the act of June 14, 1878 (20 Stat.,
113), which is as follows: "At the time of making such proof there
shall be then growing at least six hundred and seventy-five living trees
to each acre.'' The defendant herein would not be entitled to the benefit
of the act of March 3, 1891, because of his inability to make such
showing.
The act of March 3, 1893 (aupra), is as follows:
That section one of an act entitled, ''An act to repeal timber culture last's and for
other purposes/' approved March third, eighteen hundred and ninety-one, be, an«l
hereby is amtn led by a<lding the following words to the fourth proviso thereof: And
10671— VOL 24 29
450 DECISIONS RELATING TO THE PUBLIC LANDS.
j^orided further f That if trees, seeds, or cnttings ^ere in good faith planted as pro-
vided by law and the same and the land upon which so planted were thereafter in
good faith cultivated as provided by law for at least eight years by a person qoali-
tied to make entry under the timber culture laws, final proof may be made withont
regard to the number of trees that may have been then growing on the land.
From the language of the above qaoted act and from previons
departmental decisions, notably those of Jerome Hewett (16 L. D., 293?
and Nancy D. Smyth (Id. 385), it is very clear that where the timber
culture entryman can show a satisfactory or reasonable compliaDcc
with law for at least eigh t years he may make final proof withoat regard
to the number or character of trees growing on the land. The act in
that respect repeals the condition above mentioned, in the act of Jane
14, 1878, left unrepealed by the act of March 3, 1891. A farther ex
amination of the said amendatory act will show, however, that if con
strued strictly, instead of counting the requisite eight years from date
of entry, as is done in the case at bar, the period of cultivation roast
be computed from the time the trees, seeds, or cuttings were actually
])Ianted. The literal words of the act, taken iudei>endently, woald
adroit of this construction, for after providing '^ that if trees, seeds, <»r
cuttings, were in good faith planted as provided by law," the said act
proceeds to state, ^' and the same and the land upon which so planted
were thereafter in good faith cultivated as provided by law for at least
eight years.'' In this view the contestee herein would not come within
the purview of the said act, and his proof would be iusufficient, he not
being able to show cultivation for eight years after date of planting.
But in the opinion of this Department the said amendatory act
should be construed as in pari materia with former timber culture acts
and especially in conncM^tion with the provisions of the act of March 3,
1891, the fourth proviso of which it is iutended to amend. The act of
March 3, 1893, did not repeal section one of the act of March 3, 1891,
nor any part thereof, it merely amended, according to the language of
the act, the fourth proviso thereof by adding the words of the later
act. This left all the provisions of the former act in force, and while
apparently there is an inconsistency or repugnancy, yet the Depart-
ment is disposed to hold that it was not the intention of Congress to
enact new legislation, nor destroy the effect of the main features of the
former act; but merely to add such words thereto as that it would not
be necessary for the entryman, under otherwise satisfactory proof cov-
ering the period of at least eight years to show the number of trees
then growing on the land. And according to the fourth proviso of the
act of March 3, 1891, the entryman is to be given credit for the time
employed in the preparation of the land and the planting of trees, in
computing the eight years of cultivation required by the statute.
It may be urged, considering the literal words of the act, that until
trees are planted and in existence, they can not be cultivated. The act
makes provision for the planting of tree seeds as well as trees and cat-
tings. It takes time for these seeds to germinate and grow, and it
DECISIONS RELATING TO THE PUBLIC LANDS. 461
might as well be nrged that if the seeds fail to germinate and grow,
then the entryman is to receive no credit for his labor because he is
nnable to show any time expended in the cultivation of trees. As is
well known there are many failures in timber culture. If the entry-
man should be required to show cultivation for eight years after trees
have been actually planted and are in existence, he might never be in
a position to make proof, as planting and replanting are nearly always
necessary. The act was evidently intended to relieve just such cases.
If the entryman is able to prove an honest attempt for the requisite
period after entry to secure a growth of timber, that would seem to be
all that can be required of him under the statute.
In view of the fact that at the time of proof there need not be a
showing, under the amendatory act, as to the character or number of
trees, there can be no authoritative requirement of cultivation beyond
the requisite eight years. The closing words of said amendatory act,
'Hhat may have been then growing on the land," would seem to refer
to the time of the expiration of the eight years, and not to the time
final proof may be submitted. Ko requirement is imposed beyond the
requisite eight years, which are herein determined to run from date of
entry.
With regard to the case of Cassady v, Eiteljorg's Heirs (18 L. D.,
235), cited by the local office and relied upon by the contestant in his
api>eal, it was stated in said case that <^ commutation of a timber cul-
ture entry was undoubtedly intended by Congress to be substantially
similar in principle and procedure to that of a homestead entry; and
a homestead entryman is not allowed to commute unless he can prove
compliance with the homestead law until the time of commutation."
It may be stated that a timber culture entry under the amendatory act
of March 3, 1893, is more nearly analogous to that of the regular home-
stead entry, where, after cultivation and residence in good faith for the
period of five years, the said entry is not thereafter subject to contest
or forfeiture on account of abandonment.
Your office decision is hereby affirmed.
HUMISTON V. KOBTHEBN PACIFIC R. R. CO.
Motion for review of departmental decision of December 23, 1896,
23 L. D., 543, denied by Secretary Bliss, May 18, 1897.
452 DECISIONS RELATING TO THE PUBLIC LANDS.
IL\XLBOAD On^VNT— IXDEMNITY SELECTION-SETTLEMENT CLAIM.
KoBTHEBN Pacific R. K. Co. v. Gbihes.
A claim of occupancy will not be held sufficient to defeat the right of indemiiitr
Belection in the absence of actual residence on the land.
Secretary Bliss to the Commissioner of the General Land Office^ May 1\
(W.Y.D.) 1897. (A. E,;
This is an appeal from your office decision of June 18, 1895,rejettiiiir
the selection of the Northern Pacific Railroad Company, made June
16. 1892, for the W. i of the SE. J, Sec. 13, Tp. 127 N., R. ;i3 W., Sr.
Cloud, Minnesota, and allowing the additional homestead entry of Johu
Grimes for tlie same tract.
It appears that the railroad company first filed a list of selections on
November 7, 1883, which was rejected because the land was within the
grant to the St. Vincent Extension. From this the Northern Pacilic
Company appealed. This list did not specify losses.
On June 10, 1892, the company filed a list in i)roper form. On June
28. 1893, John Grimes made application to make additional homestead
entry for the land in controversy. This application was rejected because
of the railroad selection, dated November 7, 1883. Grimes appealeii.
Under direction of your office a hearing was had. The local office ret'
ommended that the application of Grimes be allowed.
Your office found that on June 16, 1892, when the railroad company
filed its rearranged list. Grimes "was occupying and cultivating tbe
land as an additional homestead claim, which defeated the company s
right of selection."
Examination of the testimony introduced by Grimes fails to sho\v
that he had ever lived upon the land or had a place of abode thereon.
Grubbing, ditching and fencing without residence can not be deemed
sufficient to except the laud from the selection of the railroad compauv,
even were the first selection, filed by the railroad company prior to the
claim of Grimes, held to be invalid because not specifying losses.
Your office decision is reversed, and you will reject the apphciititm
of Grimes and allow the selection made by the railroad company to
stand subject to approval.
Bellamy r. Cox.
^lotion for review of departmental decision of February 23, 1S97,
24 L. I)., 181, denied by Secretary Bliss, May 18, 1897.
DECISIONS RELATING TO THE PUBLIC LANDS. 453
RATLKOAD GRANT— INDEMNITY SEX.ECTION-BESIGNATION OF LOSS.
St. Paul, Minneapolis and Manitoba Ey. Co. v, Steege et al.
An indemnity selection, in the absence of a speciiied basis therefor, is no bar to the
acquisition of a settlement right; and after such right has intervened the com>
pany will not be permitted to designate a loss, and thus perfect the selection.
^Secretary Bliss to the Commissioner of the General Laiid Office, May J21j
( W. Y. D.) 1897. (F. W. 0.)
The St. Paul, Minneapolis and Manitoba Railway Company has
api>ealed from your office decision of October 24, 1894, holding for
cancellation its indemnity selection made on account of the St. A^incent
extension of its grant, covering lot 11, Sec. 31, T. 150 N., R. 46 W.^
Crookston land district, Minnesota.
This tract is within the indemnity limits of the grant for said com-
pany and was formerly included in the pre-emption claim of Mary
Carlton, she having filed pre-emption declaratory statement No. 742,
covering this and adjoining lands, April 5, 1873, in which settlement
was alleged July 125, 1872.
Carlton made due proof npon her pre-emption, against the a<icept-
ance of which the railroad company protested, and a hearing was held.
From the record made at said hearing it was held that her claim was
sufficient to defeat the indemnity withdrawal made on account of this
grant, and the company's selection made March 13, 1880, was ordered
canceled. Sec departmental decision of August 2, 1882 (91 L. and R.,
14).
It appears that upon further consideration of the pre-emx>tor's claim
it was found that the amount of lands claimed was in excess of one
hundred and sixty acres, and she was required to release one of the
tracts covered by her filing. This she did in 1883, and by your office
letter of October 11, 1883, the company's selection was reinstated as to
lot 11, the tract now under consideration, which was eliminated from
Miss Carlton's claim.
The company's selection of March 13, 1880, was not accompanied by
a designation of losses, as required by the circular of November 7, 1879,
and tbe same was not supplied until June G, 1894. In the mean time
applications had been tendered to enter this land as follows: Frederick
Anderson, June 22, 1893, and Henry Steege, August 14, 1893.
Your office decision of October 24, 1894, holds that the company's
selection of March 13, 1880, was invalid and no bar to the applications
since presented which were prior to the specification of a loss in sup-
port of the indemnity selection.
This holding is in accordance with departmental decision in the case
of Hoefb et al r. St. Paul and Duluth R. R. Co. (15 L. D., 101), in
which it was held that an indemnity selection, in the absence of a
specified basis therefor, is no bar to tbe acquisition of a settlement
454 DECISIONS RELATING TO THE PUBLIC LANDS.
rigbt; andf after such right has intervened the company will not be
jiermitted to designate a loss and thus jierfect the selection.
Yonr office decision states, that while Anderson was the prior appli-
cant, Steege alleges settlement prior to the presentation of Anderson's
application, and that hearing will therefore be necessary in order to
determine the respective rights in the premises.
For the reasons given, I affirm your office decision holding that the
company's selection of 1880 was no bar to the ai*qmsition of other
rights prior to the filing of its supplemental list on June 6, 18^, and
yon are therefore directed to take proper proceedings to determine tbe
respective rights of Anderson and Steege, and upon completion of
entry by the successful party the company's selection of this tract will
be canceled.
HOMESTEAD ENTRT— TIMBER CXTTTING.
United States v. Bbousseau.
The aotion of a liomeateader in cutting and selling timber growing on the land cov-
ered by his entry, should not be held sufficient to Justify cancellation of the
entry, on the ground of fraudulent intent in making the same, if the entrrniau
is actually residing on the land, and apparently expending the proceeds of the
timber in the permanent improvement of his claim.
Secretary Bliss to the Commissioner of tlie General Land Office^ May 21^
(W. Y. D.) 1897. (C. J. W.)
Alphouze Broasseau made homestead entry, No. 5745, on November
10, 1891, at Dnluth, Minnesota, for the N. J SE. J, NE. J SW. J, and
SW. i NE. i, Sec. 18, T. 51 N., R. 17 W. Your office on report of
special agent H. F. Young, charging failure to reside upon the laud,
held said entry for cancellation. On the application of the claimaDt a
hearing was had before the local officers at Duluth, l^Iinnesota, and on
August IG, 1895, they found that the charges made were aubstaucially
true when made, but on account of tbe showing of good faith in tbe
subsequent conduct of the entryman, they recommended the relief of
the entry from suspension. On December 13, 1895, your office reversed
this decision, and again held the entry for cancellation.
Brousseau has appealed to the Department.
Your office, in substance, held that the default of the entryman in
establishing residence had been cured, but that the cutting and sale
of the timber was such evidence of fraudulent intent in making tbe
entry as to require its cancellation. The motive in making the entry
was, therefore, made the final test of the eutryman's rights, and it was*
in effect, held, that the cutting and sale of timber from the land was
conclusive evidence of fraudulent motive in making the entry. Tlie
case of John T. Wooten (5 L. D., 389), wherein is announced the rule
that timber should not be removed from lands covered by houiestvail
DECISIONS RELATING TO THE PUBLIC LANDS. 455
entry faster than is necessary to clear it and prepare it for cultiva-
tion, is quoted in support of this construction. That case concedes
the right of an entrymau, where the land is to be cleared and culti-
vated^ to remove the timber, and does not make such removal conclu-
sive evidence of fraud, but puts upon him the burden of showing that
such removal was not fraudulent and with speculative intent.
On page 6 of instructions to special agents, of 1883, in reference to
timber depredations by entrymen, this rule is laid down:
8. The claimaDt to any such land, provided he is living upon/ cultivating and
impToving the same in accordance with law, and the rules and regulations pre-
scribed by this Department, is permitted to cut and remove, or cause to be cut and
removed from the portion thereof to be cleared for cultivation, so much timber as is
actually necessary for that purpose, or for buildings, fences and other improvements
on the land entered.
9. In clearing for cultivation ahonld there be a surplus of timber over what is
needed for the porposes above specified he may seU or dispose of such surplus; but
it is not allowable for him to denude the laud of its timber for the purpose of sale
or speculation until he has ma<le final proof and acquired title.
10. Where the facts Justify the conclusion that the person has made his entry
in good faith and is cultivating and improving the land with the purpose of making
it hia home, the agent need not consider it his duty to report every deviation from
the preceding rule. But where the person does not make the land his actual resi-
dence and cultivate and improve the same, or where the value of the timber out and
removed is greatly in excess of the improvementa, or where other facts afford a
strong presumption that the entry was not made in good faith but solely for the
purjKwe of denuding the land of its timber, the case should be at once reported to
this office.
It is to be borne in mind that the good faith of the entryman in what
he does, is the final test to which his entry is subjected. In the liglit
of these instructions, if the agent who made the report, had found the
state of facts existing then, which were shown to exist at date of hear-
ing, he would have been justified in withholding the report, for at the
latter date, the entryman and his family werfe residing upon and culti-
vating the land, and had improvements on it in excess of the value of
the timber removed. I think the status at that date should control.
In my opinion, the facts as stated in your ofiice decision fail to do
justice to the defendant, in this, that it quotes from his testimony all
admissions, as to the cutting and sale of timber, and omits to mention
what was said by way of explanation and justification. This doubt-
less resulted from the fact, that it was believed that the status at the
tune the report was submitted should control. But the very question
at issue being the good faith of the entryman, the evidence on that
subject should be both presented and considered. There are two
guides to the entryman's motive in making the entry. One is, his acts,
and the other, his admissions and statements in reference thereto.
They should be considered together. The evidence discloses the fact
that he understands the English language but imperfectly, but his
answers to questions seem to be candid, and show no disposition to
suppress facts. In reference to motive in making the entry, on page
456 DECISIONS RELATING TO THE PUBLIC LANDS.
•
46 of the record, he is asked, why he made it. His answer is, — '*for
to make my home". He is asked if that was his intention when he
made the entry, and the answer is, — " Yes sir." "Has it always been
your intention?" A. *' Yes sir." Q. "What are your circumstances,
are you a i>oor mant" A. "Yes sir, 1 am a poor man." On pagers
of the record, the question is asked, — " Why did you cut that timber
oft*!" A. "It was to improve the property." Q. "How much have
you received from the sale of the timber you cutf " A. "Well, I can-t
tell for certain, because I would do it a little at a time, and I didn't
keep track of it."
Q. Did you spend on your claim as much as you received from the sale of timber?
A. Yes sir.
Q. Is it your intention to clear that entire place?
A. Yes sir.
Q. Have you any income except what you make with your hands, your laborf
A. I dou^t understand exactly, what does it mean, explain it.
Q. Have you any money coming to you from any source, except for workf
A. No sir.
Q. So that to improve your place it was necessary, wasn't it, to cut the timberf
A. Yes sir, I couldn't do it otherways. I was too poor a man.
Q. Have you ever thought of abandoning that claim?
A. No sir.
Q. Is it yonr intention to make that your home and your family's home?
A. Yes sir.
Iso saying or admission of the entryman as to why he made the
entry, contrary to what he swears, is shown. He is very deeply per-
jured, else he made the entry in good faith.
Now as to wliat he has done. Take the largest estimate of the
timber — about two hundred and sixty thousand feet, and supi)ose it all
to have come off the claim, and to \h\ worth three and a half dollars per
thousand, it would be worth $910. Special Agent Gray, who examiiietl
the improvements in 1894, and testified at the hearing, estimated the
value of the improvements by items at J9^5.5<), with twelve and three-
eighths acres cleared. It is not conjecture then, that the value of the
imi)rovements is equal to or in excess of the value of tiie timber re
moved, but this is shown by the testimony for the government. If
the entryman had intended to get the value of this timber, and aban-
don the place, it seems he couhl have done so. The value of his
improvements must be considered in determining liis motive in mak-
ing the entry. I am not prepared to agree witli your office in holdiii^r
that this entry must be cancelled for fraud, sinre there is no adverse
claim, and the entryman is shown to be residing with his large family
upon the land, and making valuable improvements. The excess of
the value of the iniprovements over the timber removed cannot be
exactly estimated, as a i)art of the timber, in the estimate made, whs
taken from the railroad right of way, which passes through the land.
The special agent (Young) testifies that most of it was taken from the
railroad track (evidently he meant the railroad right-of-way), as shown
DECISIONS RELATING TO THE PUBLIC LANDS. 457
by the stumps. Jolin, a witness for the government, also swears, that
a good part of the timber* used came oft* the railroad right of way,
where it was all taken oft'.
Owing to the strength of the defendant's showing, I think he has
overcome the strong i)resumption.of bad faith, which arose against him,
on account of the removal of the timber. In direct reference to its
removal faster than the land was cleared, he swears that "ho thought
he had a right to cut the timber in the manner it was done, and that he
intends to clear all the land." The evidence shows this entryman to
have a wife and ten children, the youngest only a few months old; that
be is poor, owns no house or land elsewhere, and has to labor witli his
hands for a living. He and his family are living upon the land embraced
within the entry and all and more than all he obtained from the sale of
timber is on the land in the shape of permanent improvements. These
are facts against the presumption that he made the entry with a view
to get the timber, and then abandon the land. lie can not obtain title
until he has fully complied with the homestead laws as to five years of
residence and cultivation, which must be made to appear from his final
proof, when submitted. There appears to be no present necessity for
the cancellation of the entry.
Vour decision is accordingly reversed, and the entry held intact,
subject to his future compliance with the homestead laws.
TOWN LOT— AI>A"ERSE OCCUPANCY— TOWXSITE CO>lPANY.
Smith v, Havabd et al.
The occnpancy of a town lot by the agents of a townsite company confers no right
that win defeat an adverse occapant of the remainder of said lot^ who is claim-
ing the whole of it.
Secretary Blisft to the Commissioner of the General Land Office^ May 21^
(W. V. D.) 1897. (C. J. W.)
The record in this case shows that it was first heard before townsite
hoard No. 3, for Hennessey, and that decision was made by them in
favor of Ilavard and Batton from which Smith appealed. Before the
record and appeal were forwarded to your ofiQce, board No. 3 was suc-
ceeded by board No. 6. The last named board on May 8, 1895, trans-
mitted to your oflQce Smith's appeal and all papers to l)e found con-
nected with the case.
On June 22, 1895, upon examination of the record, your othce found
that there was no proper proof of service of notice of the hearing, upon
the parties, and further that the typewritten pages purporting to be
the testimony of witnesses examined at the hearing were not certified
by the board to be such testimony. Your oflQce further found that no
decision of the board accompanied the record, further than api)eared
458 DECISIONS RELATING TO THE PUBLIC LANDS.
from a letter from H. 8. St. Glair^ late chairman of board Ko. 3, in which
he says that his record shows that the deci&ion was rendered January
6y 1893, and was delivered to the attorneys for Smith. He then gives
what he states nnder oath to be a correct and complete copy of the
decision of said board No. 3 as follows:
Case tried on the day of January, 1893, the board find as foUows for the
defendants W. T. Havard and F. T. Batton :
Your office upon their showing recognized Smith's right of appeal,
but returned the testimony to board No. 6, with instructions to allow
the parties thirty days within which to file an agreement signed by
themselves showing that the record contains the testimony as given
by the witnesses at the trial, or to file an agreed statement of facts. If
they failed in said time to cure the defects in the record of the evidence,
the board was directed to order a new hearing in the case, and give all
parties due notice thereof.
It appears that the parties failed to take action and cure the defects
in the record, and the board on August 21, 1895, ordered a hearing tk
novoy and due notice of the same was served upon Smith, Havard and
Batton. Smith and Havard appeared on November 27, 1895, and
entered into an agreement that the testimony heretofore taken, may be
considered in the case, and each filed an affidavit that he was a native
born citizen of the United States. It was discovered on examination
of the papers, that J. W. McEver had filed an application for the lot
which had not been disposed of by board No. 3. Tlie board thereupon
continued the case of its own motion to April 28, 1890, and duly notified
McEver. On said day McEver failed to appear and was adjudged to
be in default, and his application dismissed. On July 8, 1896, townsite
board No. 6 rendered a decision in which they awarded said lot to Smith.
From this decision Havard and Batton appealed, and your office on
October 20, 1896, affirmed said decision.
The case comes before the Department on the further ap])eal of
Havard and Batton.
In reference to the facts, your office reports as follows :
It appears that on April 23^ 1889, one John A. Blair made homestead entry of the
S£. i of Sec. 24, Tp. 19 N., K. 7 W. and June 26, 1889, oommenoed to baUd a honse,
twelve by foarteen, on said land which house is now located in whole or in part on
the lot in controversy. It does not appear that Blair ever resided on said laml, cir
occupied said house in person. He claims that he had tenants in said hoose bnt
failed to state when and how long his tenants occupied it. He states that he ouce
rented the building to Lee Gray; thinks it was in the winter of 1889, or 1890. Blair
in answer to the following question, says:
''Q. Did luiybody ever occupy it as your tenant before Gray occnpied itf A.
Yes sir.
Q. Who was itf A. I think Judge Bross was one, Guy Gillett and anybody el^^e
that saw lit to occupy it.'*
It appears that this lot No. 2 is a part of land entered by Blair as a homestead
and that he relinquished his right to said land October 23, 1889. He further daiuiB
that said land was platted for a town, and on June 26, 1889, he claimed the lot liia
DECISIONS RELATING TO THE PUBLIC LANDS. 459
house waa to 1)6 built on as his* On the day Blair relinquished his claim to said
land, John T. Baldwin made homestead entry for the same tract, and on March 23,
1891, Baldwin relinquished the NW. i of the S£. i of said quarter section. This
last described forty acre tract is now, and has been since June 23, 1892, a part of the
townsite of Hennessey, and the lot in contest is located in this tract.
It appears that Smith settled in Hennessey in the fall of 1889, and in connection
with O'Conner, opened a hardware store on lot one in said block, and ac^oining the
lot in dispute. On January 14, 1890, Smith took possession of, and fenced said lot;
and on that evening the fence was cut down by parties claiming to represent a town-
site company. It appears that Smith's possession of said lot did not include the
house erected thereon in 1889. Smith claims that notwithstanding his fence was
torn down, he still held possession of the lot and used it for storing lumber and
machinery on. In November, 1891, he again set some posts around said lot with the
intention of fencing it, when he was prevented from fencing it by one ''Torn"
Smith. Smith and Gillett claimed that tliey were representing the Hennessey town-
site. It appears that Blair was in Hennessey several times from the fall of 1889 to
the spring of 1892, but paid no attention to said lot, nor did he notify Smith that he
laid any claim to it. Blair offers in evidence a receipt from the sheriff of Kingfisher
county, O. T. which states that in 1892, he paid $8.80 taxes and costs. This receipt
does not state for what said taxes and costs were paid, it describes no real estate as
tax receipts for real estate usually do, and does not state on what day or month in
1892 it was paid, but Blair testifies that it was for taxes levied on said lot by the
provisional authorities of said town. Blair testifies that he sold hia interest in
said lot in April 1892, to Havard and Battou. The townsite of Hennessey was
entered by townsite board No. 3, June 23, 1892.
The townsite board foaiid sabstantially the same facts, and the record
supports the finding.
Your office fonnd that Blair had practically abandoned the lot prior
to his sale of it, and that he could convey no better title to Havard
and Battou than he had at that time. If he had been in possession of
the house by himself or tenant, the case would be different. The evi-
dence indicates that the parties occupying the building were tenants,
or agents, of the townsite of Hennessey, and not of Blair, and that it
was so occupied at the date of the townsite entry, in June, after the
sale to Havard and Batton. No one seems to have exercised any
dominion over the lot for a considerable period before and after Blair^s
sale, except the townsite company and Smith.
This corporation was not qualified to settle and occupy a town lot in its
own right. Its agents could have lawfully occupied a lot as tenants of a
qualified owner, and if they had been Blair's tenants, their occupancy
would have been his; but while Blair seems to have permitted their
occupancy, he also permitted them to assert a right in themselves as
representatives of the corporation without protest. It was charged
that he was himself a member of this corporation, but the evidence
does not show who composed it. That he had notice that both Smith
and the corporation laid claim to the lot seems pretty clear, and he
gave notice of his own claim. He appears to have been willing for the
corporation to hold the lot, and to claim it as its own. He does not
claim that the agents of the corporation were his tenants. They could
only lawfully occjupy as tenants, and under the facts their occupancy
460 DECISIONS RELATING TO THE PUBLIC LANDS.
of the building must inure to the benefit of Smith, who occupied the
remainder of the lot, and was claiming the whole of it.
Your office decision is accordingly affirmed.
RAII^ROAJ> RIGHT OF WAY— STATION GROUNDS— IIOMESTEAI> ENTRY.
St. Paul, Minneapolis and Manitoba By. Co. r. Maloney et al.
The actual uao of land as station grounds, prior to survey, by a company that ha^
liled its articles of incorporation, proofs of organization, and constrncted a rail-
road over nnsurveyed land, entitles said company to an approval of a plat of
said grounds,, as against an intervening homestead entry, if such use antedates
the settlement of the homesteader.
Secretary BlisH to the Commissioner of the General Lantl Office^ May :^L
(W. V. D.) 1897. (F. W. C.
The St. Paul, Minneapolis and Manitoba Railway Company has ap*
pealed from the action taken in your office decision of October 2, ISIXJ.
in refusing? to recommend for approval its plat showing station grounds
situated npon lots 5, 6, 7 and 8, Sec. 26, T. 26 K, R. 11 E., Seattle laud
district, Washington.
Your refusal to recommend the approval of this plat is upon the
ground that the tract covered by the plat is embraced in homestead
entry of John Maloney, which entry was made prior to the filing of the
l>lat by the railway company.
On behalf of the company it is represented that the line of its road
through the lots described was located during the year 1891 and the
road actually constructed during the following year; that at the time
of the location of said road the company selected for station purposes
the tracts shown upon its plat and has been enjoying and using tbeoi
for that purpose from that time to the present. The land was at that
time nnsurveyed, the plat of survey not being filed until May, 181K).
Upon the filing of said plat it appears that Maloney made the home-
stead entry in question, and in his affidavit alleged settlernent upoutlie
land during the year 1891.
In the argument filed on behalf of John J. Sturgus it appears tinit
he lays claim to lot 6 by reason of an attempted location of the same
with Gerard scrip, which is alleged to have been offered before tlie
allowance of Maloney's entry, and that a contest was at the time of
the filing of said argument (January 15, 1897) pending, undetermined,
in the local office, between said parties, involving the right to euter
said lot.
The company's application for the approval of its plat ayipears to be
based npon the act of March 3, 1875 (18 Stat., 482), which granted the
right of way through the public lands of the United States to any
railroad company
duly organized under the laws of any Stat« or Territory, except the l">istrict of
Columbia, or by the Congress oi the United .States, which sbaU have filed with the
DECISIONS RELATING TO THE PUBLIC LANDS. 461
Secretary of the Interior a copy of its articles of incorporation, and due proofs of
its organization under the same, to the extent of one hundred feet on each side of
the central line of said road ; also ground adjacent to such right of way for
station buildings, depots, machine shops, side- tracks, turn-outs, and water-stations,
not to exceed in amount twenty acres for eac^h station, to the extent of one station
for each ten miles of its road.
In the case of Dakota Central R. R. Co. r. Downey (8 L. D., 115) it
was held —
If it were to he held that a railroad company has a right to build its road on
unsurveyed land, and yet, perhaps years subsequently to the date of the comple-
tion and operation of the road, and the actual appropriation of the land (under the
Arst section) for station-buildings, depots, machine shops, side tracks, turn-outs,
and water-statioDs, within the limited quantity, that its right to the continued
benefit of the ground for right of way, station-grounds, etc., must depend upon its
tiling a profile of its roatl, after the township plats of survey are deposited in the
land oftirc, but before auy other claimant can make a timber- culture entry, or a
homestead entry, or lile a pre-emption declaratory statement, or other step under
the laws for the acquisition of public lands, it would be simply to deny to the com-
pany the benefit of the first section of the act. It would be impossible for the
company to comply with the condition of filing a profile as quickly as individual
settlers could file entries upon the land. A timber-culture entry might bo filed on a
quarter-section which would embrace the depot-grounds of a company, iuclndiug
its buildings, side tracks, etc., and it would be unreasonable, in my judgment, to
{•npposo that Congress intended in said act that a railroad company, which had con-
structed its road prior to the initiation of any claim or right under the laws for the
disposal of the public lands, should be compelled to purchase its improvements and
right of way from the subsequent claimant.
It seems to be clear, as held in said decision, that it is not necessary
for a company, which lias tiled its articles of incorporation and proofs
of organization, and constructed a road over unsurveyed public lands,
to lile a map of definite location in order to entitle it to the benefits of
said act.
If the land covered by the plat for station grounds now under con-
sideration was actually used for the purposes indicated, prior to the
settlement of Malouey, upon x)roof of tliis fact it would seem that its
application for the approval of its phit should be granted, notwith-
standing the fact that entry had been made of tlie land by Maloney
before the pres«-*ntation of said plat.
I have therefore to direct that a hearing be ordered, after due notice
to all parties concerned, in order to determine the question as to the
exact time the laud covered by the plat under consideration was
actually selected and used for station purposes; also as to whether
any settlement right to this tract existed in Maloney at the time the
tract was so selected and used. If Sturgus claims, as does not appear
from the papers now before me, a right prior to his attempted location
in 189G, opportunity should be afforded him to show the nature of
such claim at the time of the selection and use of the land for station
purposes.
I do not see that this application can in any wise interfere with or
-J
462 DECISIONS RELATING TO THE PUBLIC LANDS.
influence actios in the controversy now pending between Maloney and
SturguB under their respective claims as before described.
The papers are therefore herewith returned for your further action
in accoitlance with the directions herein given.
EXEClTn'K W^THDRAWALr-APPLICATION TO ENTER.
Michael L. Toole et al.
During the existence of an executive withdrawal of lands for a pnblic porpose no
right thereto can be acquired by an application to enter the same; but it i>
within the exercise of departmental discretion, on the removal of the reservH-
tion, to recognize applications so filed, subject to prior adverse claims.
Secretary Bliss to the Commissioner of the General Land Office^ May 2U
<W. V. D.) 1897. (R. W. H.)
The lands covered by the applications of the parties above named
are the E. ^ of the NE. J and the E. i of the SE. J, Sec. 8; the SW. \
Sec. 9; the E. i of the NE. J and the i^E. J of the SE. i, Sec. 17, Tp.
144 jS^., E. 25 W., St. Cloud land district, Minnesota.
The antecedent history in relation to them is briefly as follows:
By letter of July 24, 1883, the Secretary of War asked authority of
this Department to cut timber for reservoir purposes from public lands,
not withdrawn, in the vicinity of the dams at and above Poqnima Falls,
Minnesota.
It was determined by this Department that the best method of
acceding to the request of the Secretary of War would be to withdraw
such lands as were indicated by him, and withhold them from the pub-
lic offering that had been proclaimed for the 20th of August, 1883.
The General Land Office was accordingly authorized by letter of
August 1, 1883, "to withhold from public sale and disxwsal of any
kind'' the tra<»ts as specified.
Your official letter of formal withdrawal, containing the statement
that they were ** reserved for reservoir purposes," bears date August
16, 1883.
On September 25, 1890, Dennis Hanlon made application to eut^r
the E. J of the S W. J of said section 9, and other land not embraced in
the reservation; and on the same day Michael L. Toole applied to enter
the SW. J of the SW. J of said Sec. 9, and the E. J of the SE. i said
Sec. 8, and the NE. \ of the XE. J said Sec. 17— both parties tendering
their fees and commissions.
On June 28, 1892, William A. Berry filed his application to enter
the SW. 4 of Sec. 9. On the same day Jesse L. Hull applied to enter
the E. J of the FE. J and the NE. J of the SE. i, Sec. 17; and on July
1, 1892, Samuel A. Hull filed application to enter the E. J of the 2^. \
and the E. ^ of the SE. :|, Sec. 8.
DECISIONS RELATING TO THE PUBLIC LANDS. 463
None of these applications was formaUy rejected according to Rule
of Practice G6.
It api)ears from the record that Michael L. Toole and Dennis Han-
Ion, ni>on the presentation of their applications, were notified by the
register and receiver that the lands applied for were not subject to
entry; and upon this information they left their applications in the
custody of the local office, taking no steps in reference to them, except
to employ an attorney to look after their interests, until the lands were
restored to the public domain.
The applications of Samuel A. Hull, Jesse L. Hull and William A.
Berry were denied, not only for the reason that said lands were
reserved from the public domain for reservoir purposes, but for the
additional reason that the prior applications of said Toole and Hanlon
were on file in the local office, and should have precedence.
Berry and the Hulls appealed from this denial of their applications,
first to your office, which sustained the action of the local office, and
then to this Department, which in separate letters, of even date, to the
parties, to wit, June 18, 1894, used this language:
An examination of the matter shows that the land was reserved at the request of
the 8ecretary of War, bnt since the rendering of yonr office decision it has been
determined by the Secretary of War that ''no present or contemplated o]>eration8 of
the Engineer Department would require the lands in question to remain excepted
from the public domain;'' therefore yon will restore the same, giving the preference
right to enter to the applicant herein subject to any superior right by virtne of
prior settlement or appUcatiou.
Pursuant to» instructions contained in yonr office letter of July 3,
1804, enclosing the departmental decisions of June 18, 1894, in the cases
of Samuel A. Hull, Jesse L. Hull and William A. Berry, the local office
ordered a hearing for October 8, 1894, of which due notice was given to
all parties, in order to determine what rights, if any, were superior to
those of the said applicants.
On July 6, 1894, Dennis Hanlon made application for the SW. J of
Sec. 9, and on the same day Aaron L. Swanson applied to enter the E. ^
of the SB. i and the E. I of the NE. i, said Sec. 8, and Charles A.
Burton applied to enter the E. i of the NE. J and the NE. J of the SE. J
of said Sec. 17.
These applications were suspended to await the result of the hearing,
which had been ordered, as above stated.
On July 12, 1894, Michael L. Toole, having learned of the restoration
of the lands, covered by the applications of Berry and the two Hulls,
renewed his former application of September 25, 1890, tendering there-
with the proper fees and commissions, and subsequently filed a new
homestead affidavit. This application was likewise suspended to await
the result of the hearing.
On February 7, 1895, the local office rendered its decision, finding
that:
The application of Dennis Hanlon, filed July 6, 1894, should be rejected ; that the
application of Aaron £. Swanson, filed July 6, 1894, should be rejected; that the
40 4 DECISIONS RELATING TO THE PUBLIC LANDS.
application of Cburlen Burton, filed July 6, 1894, sboultl be rejected; tbat tbe appli-
cation of Ih'nnis 1 [anion, iil(>d .Septeml>er 25, 1890, sboald be allowed in so far tn
the same does not contlict witb homestead entry No. 15015, by B. Finnegan; that the
claim of William A. Berry should be rejected so far as the same conflicts with the
application of Dennis Hun Ion, but as to the tracts of land not conflicting with
tbe application of Dennis Hanlon, be allowed; that the application of Michael L.
Toole, filed September 25, 1890, should be allowed; tbat the applications of Samnel
A. Hull and Jesse L. Hull should be rejected, so far as the same conflict with the
application of Michael li. Toole; tiiUt as to all other tracts not conflicting with the
application of Michael L. Toole, the applications of Samuel A. Hull and Jesse L.
Hull should be allowed.
All the partie.s, except Toole, appealed from the decision of the local
office.
In your office d<»cisioii ui)on these appeals it was held that the prefer-
ence right given by departmental decisions of June 18, 1894, was
merely intended to allow them to enter the land un<ler their applica-
tions, in the event there were no other applications then pending aud
on file; and as the applications of Hanlon and Toole had not been fonu-
ally rejectiHl by the local office, aud were pending prior to and at tbe
date of the applications of the two Hulls and Berry, they are "superior
to the applications subsequently filed;" that the subsequent applica-
tion of Hanlon, aud the applications of Swanson and Burton, filed July
6, 1804, conflicting with the ai)plications filed prior to that date, were
properly rejected; that the departmental decisions of June 18, 1894,
had been correctly applied, and that the only error was in awarding to
both Toole and Berry the SW. J of the SW. i of Sec. 9. With the cor-
lection of this error, and the restriction of Berry's application totlie
NW. 4 of the SW. J of said Sec. 9, the finding of the local office was
affirmed.
The contentions of the parties to this case, all of whom have appealed
to the Department from your office decision, except Toole, are:
First: In behalf of Berry and the two Hulls — that the burden and
exi)ense incident to the prosecution of their ajipeals, which resulted iu
the restoration of tlie laud to the public domain, entitle their applica
tions to precedence; that the applications of Hanlon and Toole, which
were not followed up by appeal or request for any action whatever in
the premises, gave them no rights; that the case is one where tlie
maxim in favor of the vigilant as against the dormant specially applies,
and that it would be inequitable to allow Hanlon and Toole to reap a
reward which had not been secured by their labors. In support of
these contentions cases are cited holding that an application to enter,
which though rejected, is followed promptly by proceedings to make it
eflectual, and to secure favorable rulings of the Department, when the
impediment in the way of the entry is removed, gives a prefiwence
right.
Second: In behalf of Swanson, Burton and Hanlon (the last named
party having presented a new application in conflict with that of Toole
as to the SW. J of the SW. J of Sec. 9, and that of Berry as to the entire
DECISIONS RELATING TO THE PUBLIC LANDS. 465
SW. J of said section) — that no rights attach under the applications of
Toole, Berry and the Hulls, because the lands applied for were, at the
time, in a state of reservation, and having failed to renew said applica-
tions in proper form prior to the intervention of adverse rights attach-
ing when the land was subject to entry, they have no claims that can
be recognized ; and that the departmental orders of restoration, of date
June 18, 1894, are not to be construed as contravening the established
rules of the Department governing applications for public land.
The counsel for Toole claim that, as the record showed his application
was on file when the applications of the other parties were made, they
were charged with notice of the same, and that, in restoring the land
to the public domain, the Department did, as it had a right to do,
expressly recognize his priority.
It must be observed that the particular lands here in question,
although "reserved for reservoir purposes,'^ were not embraced in any
of the lists which were withdrawn, and afterwards restored, by proc-
lamations of the President under the provisions of the act of June 20,
1890 (26 Stat., 169).
This act prescribed restrictions and conditions relative to the entry
of the lands specified therein, after their restoration to the public
domain, which were not imposed by the Department in restoring the
lauds now under consideration.
The withdrawal in this case was in virtue of the recognized execu-
tive authority to withdraw public lands, and to restore the same to the
public domain, as the public good may demand. While said with-
drawal was in force no rights were acquired under any of the applica-
tions to enter the lands covered thereby. In this respect the applica-
tions of Toole, Berry, the Hulls, and the original application of Hanlon
are upon the same footing — the land not being subject to entry when
they were made. The action of the local office in not accepting them
was, therefore, proper; and their presentation entitled the applicants
to no other consideration than the Land Department, in the exercise
of its discretionary power, saw proper to concede, the questions being
entirely between the several applicants and the government.
The cases cited by counsel for Burton, Swanson, and Hanlon are
based, for the most part, on withdrawals under railroad grants, which
are different, both in purpose and effect, from temporary withdrawals
like the one here under discussion — the former being in the nature of
government quitclaims to property granted to a corporation ; the latter
being reservations of its own land from disposal, and setting it apart
for public purposes, the reservation remaining as long as the public
purpose exists, of which the Department is the judge.
It is also to be observed that the reservation here in question is not
of that class of reservations which require congressional action for
their restoration to the public domain when the purpose of their cre-
ation has ceased to exist.
10671— VOL 24 30
466 DECISIONS RELATING TO THE PUBLIC LANDS.
Inasmuch as the Department by its decisions of Jane 18, 1894,
awarded the preference right of entry to the parties named therein,
subject to the conditions stated, and the parties appear to have made
expenditures in view thereof, such action will not be disturbed, though
the same was not in strict accord with the usual rulings of the Depart-
ment u))on similar questions.
I am also of the opinion — as the applications of William A. Berry,
Jesse L. Hull and Samuel A. Hull were refused by the local office, for
the reason that the lauds applied for were reserved for reservoir pur-
poses, and, also, because ^^ the prior applications of said Toole and
Hanlon were on file and should have preference," — that it was the
purpose of said departmental letters of June 18, 1894, to give the pref-
erence right in the cases named, subject to the pending applications,
as hereinbefore set forth.
The decision of your office is affirmed.
DESERT LAND ENTRY-CITIZENSHIP— KESIDENCB.
Palmer v. Miles.
The provisionfl of the amendatory desert land act of March 3, 1891, reqoiring the
entryman to be a resident citizen of the State in which the land is sitaated, are
not applicable to an entry made prior to the passage of said act.
Secretary Bliss to the Oomniissioner of the Oeneral Land Office^ May 22^
(W. V. D.) 1897. (E. M. E.)
This case involves the E. J of the IS"^. J, liTE. J of the SW. J, W. i
of the NE. J, SB. J of the NE. J, and the SB. i of section 10, T, 3 K,
B. 38 E., Black foot laud district, Idaho.
The record shows that Edwin H. Miles made desert land entry for
the above described tract July 17, 1890.
July 25, 1893, he made application for extension of time within which
to make final proof.
September 21, 1893, the extension was granted until August 17, 1894.
July 12, 1894, the entryman gave notice that he would offer final
proof on the date to which the extension was granted.
August 3,' 1894, George F. Palmer filed corroborated affidavit ot
contest against the entry of Miles, alleging that the land had not been
irrigated or reclaimed; that final proof and payment had not been
ma<le within the time required by the statute, and that the entryman
was not, and had not been, for four years a resident of Idaho according
to statutory requirements.
A hearing having been ordered and had, the local officers on March
29, 1895, rendered their decision in which they found that the only
charge contained in the affidavit of contest, which was sustained at
the hearing, was that the defendant was not a resident in the State in
DECISIONS RELATING TO THE PUBLIC LANDS. 467
w'hich the land lay. It having been decided that such residehce was
requisite, they sustained the contest and recommended the cancellatiou
of the entry of the defendant-respondent.
Upon appeal being taken, your oflBce decision of December 5, 1895,
was rendered reversing the action of the local officers, the proof being
deemed satisfactory and your office not concurring in the view of the
local officers that residence in the State where the land lay was required
of the entryman, if the entry was made prior to the act of March 3, 1891,
Appeal by the plaintiff brings the cause to the Department.
It is apparent ft^om the record that the defendant has complied with
the law as to reclamation, and the extension of time granted him within
which to make proof served to protect him from the charge that his
proof was not made within the statutory period; so the only question
for consideration is, whether his residence in Utah, the land in contro-
versy being in Idaho, necessitates the cancellation of his entry.
The original desert land act of March 3, 1877 (19 Stat., 377), had no
provision requiring that the entryman should be a resident of the State
in which the land covered by his entry lay.
In the amendatory act of March 3, 1891 (26 Stat., 1095), in section 8,
it is provided —
That the provisions of the act to which this is an amendment, and the amend-
ments thereto, shall apply to and he in force in the State of Colorado, as well as the
States named in the original act; and no person shall be entitled to make entry of
desert land except he be a resident citizen of the State or Territory in which the
land sought to he entered is located.
Section 6, of the same act, provides —
That this act shall not affect any valid rights heretofore accrued under said act of
March third, eighteen hundred and seventy-seven, but all bona fide claims heretofore
lawfully initiated may be perfected, upon due compliance with the provisions of
said act, in the same manner, upon the same terms and eonditions, and subject to
the same limitations, forfeitures and contests, as if this act had not been passed;
or said claims, at the option of the claimant, may be perfected and patented under
the provisions of said act, as amended by this act, so far as applicable; and all acts
and parts of acts in conflict with this act are hereby repealed.
In the case of ex parte Kimble (20 L. D., 67), it was held that the pro-
vision requiring the entryman to be a citizen and resident of the State
in which the land lay, referred to the original entry. When the entry
now under consideration was made, the law was silent as to such
requirement and, therefore, the entry was properly allowed. Under the
provisions of the latter act, the entryman could have proceeded under
either act. If he chose the act of 1891, then the terms of such act, to
use the language thereof, became binding << so far as applicable." This
could not be construed to mean, that as this act demanded the entry-
man to be a resident of the State in which the laud lay, the entryman
under the act of 1877 would have to show this qualification. Having a
"6ona fide claim" under the act of 1877, he came within the express
permission of the act of 1891, to perfect his claim thereunder*
468 DECISIONS RELATING TO THE PUBLIC LANDS.
jS'o other qaestion having been raised by the appeal, than is herein
set out, no good reason appears for disturbing the judgment of your
office, and it is affirmed.
TOWNSITB ENTRY— CONTEST— NOTICE TO TRUSTEES*
BRUMMETT V. MCCORDIA TOWNSITB.
•
On the application of t-ownsite truetees to make a townsite entry a charge of aban-
donment, ae against the townsite settlers, may be properly entertained^ and
notice to said trustees of the hearing ordered thereon is notice to lot claimants.
Secretary Bliss to the Commissioner of the General Land Office^ May 22^
( W. V. D. ) 1897. (O. J. W. )
The present contest was preceded by various proceedings had with
reference to the establishment of a town upon the E. ^ of the S£. \^ of
Sec. 32, T. 26 N., R. 3 W,, I. M., located in what was known as the
Gherokee Outlet. It appears from your office decision, that in Novem-
ber, 1803, soon after the opening, D. B. Madden, as probate judge of
^^L" county, Oklahoma, at the instance of alleged settlers and occu-
pants, filed an application to enter it for townsite purposes for their
use and benefit. He submitted final proof, which was rejected by your
office (letter "G'' of March 24, 1894) for want of authority to make the
same, but stated that the conditions surrounding the town were in
conformity with the requirements of the act of May 14, 1890 (26 Stat,
109), so as to justify its entry under that act, and townsite board
No. 12 was instructed to make said entry. It had been previously
decided that townsite entries in the Cherokee Outlet could only be
made through townsite trustees under said law. Said board filed
application to make the entry, but on oftering final proof, C. W. Hum-
phrey filed protest, which was subsequently amended. The protest
charged that the entry was sought for speculative purposes. The
record was forwarded to your office for consideration. Your office by
letter "O" of October 20, 1894, dismissed the protest, Humphrey
appealed, and his appeal was disallowed by your office, because filed
too late. He applied tor a writ of certiorari, which was denied here,
April 13, 1895, and your office decision dismissing his protest became
final. Meantime board No. 9 had become the successors to board No.
12. February 10, 1895, Alonzo Brummett filed affidavit of protest in
the nature of a contest, in which the abandonment of the town by its
settlers was alleged, and asking for a hearing to determine the status
of the land, and for preference right to enter it as a homestead. On
June 11, 1895, your office ordered a hearing, and directed the local
officers to notify Brummett and the townsite board of the date fixed
for hearing. By letter "G" of same date your office notified towD-
site board No. 9 that the hearing had been ordered, and enclosed a
DECISIONS RELATING TO THE PUBLIC LANDS. 469
t
copy of the petition on which probate judge Madden had based the
application to enter, for information in conducting the defense at said
hearing, and informed said board of the names and addresses of wit-
nesses who were advertised, and all who had testified both on Madden's
proof and the proof of board 'So. 12, and further instructed them to
endeavor to have such testimony produced at the hearing as would
enable the local ofBcers to render a correct decision.
On September 11, 1895, a hearing was had, Brummett appearing in
person and by attorney, and the townsite of McOordia by said townsite
board No. 9, and the case closed.
January 27, 1896, M. Winfield, A. C. Rosewell and A. T. and J. K,
Cross filed motion to reopen the case, for further hearing.
On March 15, 1896, the local officers rendered a decision, in which
the motion to reopen was denied, and the rejection of the townsite
application recommended, and also that Alonzo Brummett be allowed
a preference right of entry, subject to M. Winfield's right to make entry
for the technical subdivision upon which he resides. The parties who
moved to reopen the case filed authority from townsite board No. 6,
which board had become successors to board No. 9, to be made nominal
defendant and to s^ppeal.
The decision of the local officers was accordingly appealed from.
The questions presented in that appeal were passed upon by your office
letter "G" of May 29, 181)6, in which the decision of the local officers
was affirmed as modified. The same questions are now before the
Department on appeal from your office decision.
The first assignment of error denies the validity of the hearing on
Jane 11, 1895, based on Brummett's affidavit, and assigns error in that
part of your office decision holding that the legality of the order direct-
ing a hearing is res judicata.
The order directing a hearing was interlocutory, was not subject to
apx>eal, and in that sense was res judicata. There is no error found in
this ruling.
The second ground of complaint is that your office erred in directing
townsite board No. 9 to notify the inhabitants, and have them produce
evidence at said hearing. It is not stated wherein this was erroneous,
and it is not found to be so.
The third and fourth grounds allege error in not reopening the case,
for further hearing, and the fifth ground alleges error in holding that
a townsite settled under the law of May 14, 1890, can be lost by
abandonment.
The seventh and eighth grounds are embraced in the preceding
ones.
The ninth ground charges error in holding that notice to and appear-
ance by the townsite board is notice to and appearance by the lot
claimants. The 10th, 11th and 12th grounds are formal.
If it be true as stated by counsel, and as stated in the fifth ground
4V0 DECISIONS RELATING TO THE PUBLIC LANDS.
I
of appeal, that a settlenieut for townsite parposes under the act of
May U, 1800 (26 Stat., 109), is not subject to the charge of abandon-
ment, this would be conclusive against your office decision, and no
other ground would require consideration. No brief is tiled in support
of this contention and no authority cited except the act itself, and no
reference is made to any particular clause or section of the act. The
act in all its provisiotis has been examined, and it is not found that it
admits of the construction contended for. The general scheme of the
act is to have townsite entries in Oklahoma made by trustees for the
benefit and use of the occupants, and the sixth section provides, when
final entry is made, that the title of the United States to the land
covered by it shall be conveyed to said trustees for the uses and pur-
poses contained in the act. In 14 L. D., 205, it was held that the
issuance of patent to townsite trustees was not a disposition of the
government title, so as to take the same without the supervision of
the Secretary of the Interior, and if this be true, certainly a mere
settlement, nominally for townsite purx)08es, before entry, will not
have that effect. It must be held that the contention is not supported
by the law, and that settlement rights under this act may be lost by
abandonment, before final entry by the trustees. Neither the probate
judge nor any one of the boards of trustees has ever got further in
this case than to file application to enter and offer final proof. Such
proof has not been accepted and followed by final entry. That offered
by the probate judge was rejected in accordance with instructions of
February 14, 1804 (18 L. I)., 122), in which it was held that probate
judges are not invested with authority to make townsite entries within
the Cherokee Outlet.
The status of this land is that an application by trustees to enter it
was pending at the time the charge of abandonment was made, and is
still pending. In my opinion such charge can be properly entertained,
and if it is made to appear that not more than one head of a family
remains on the land as an occupant, the application can be properly
rejected.
The question as to whether or not Brummett is estop]>ed from setting
up claim to this land under the homestead laws, by reason of haviog
been one of the former townsite claimants and occupants will be next
considered. It is shown that his father was a member of the townsite
company or committee which managed and directed the affairs of the
settlers in the original effort to found a town, and that in his official
capacity he sold lots and issued certificates to the i^urchssers, and he
is charged with having used his influence finally to prevent its growth
and success. The charge of bad faith on his part is by implication also
made against the protestant, Alonzo Brummett. He concedes that he
occupied and improves! a town lot, and intended to acquire title under
the townsite laws, but when the town commenced to go down he aban-
doned it; he sold his building to his father and formed the purpose of
DECISIONS RELATING TO THE PUBLIC LANDS. 471
claiming the land under the homestead laws. The record has been
examined with a view to determine whether or not he has done any-
thing which would in law estop him from objecting to the perfection of
the townsite entry, and I have not been able to find that he is so
estopped.
The remaining question is, whether the motion of Winfield, Rose well
and others to reopen the case for further hearing should have been
granted. The affidavits filed in support of that motion were not
addressed to the proposition of showing actual occupancy of town lots,
but ownership of such lots, and that they would have been occupied if
the owners had been encouraged in the scheme of building a town.
They did not propose to show that the town was not abandoned, but
asked to be allowed to show why it was not occupied. The eflFort to
establish this town had lasted about three years, and it then had one
family residing in its limits, according to the proof, and nearly all build-
ings and improvements had been removed. The local officers, at the
close of the hearing, found as a fact that the land was used by one
occupant only, and that he had four buildings on it used chiefly by this
one occupant; that it was situated one and a half miles from the small
town of Lamout, which contains from twelve to fifteen buildings. It
appears from the affidavits filed in support of the motion to reopen that
the hope of building this town rested largely on a plan to have the
Lament people abandon their town and remove to it. This plan did
not succeed and the place at the date of the hearing was not occupied
as required by law. It is not decided what number of occupants would
authorize an entry in trust under the law, but certainly such entry must
be for occupants, and it would seem that the showing in this case was
not sufficient to authorize the entry. The facts in relation to the attempt
to found this town are fairly presented in the decision appealed from,
on pages 4 to 7. inclusive, and need not be restated here. It is suffi-
cient that the attempt was a failure. It is insisted that the former
occupants and lot owners should have had notice of the hearing. Your
office properly held that notice to the trustees was notice to them. It
is farther insisted that Alonzo Brummett's affidavit of protest should
have been dismissed, because of its corroboration by his father, who
was interested in the townsite. Your office, in the exercise of a sound
discretion had the right to order a hearing, to ascertain the present
status of the land, where it was represented and charged to be aban-
doned. It is reported by the local officers that Alonzo Brummett paid
the costs and' expenses of the hearing. There was no error in ordering
the hearing. Your office as a result of the hearing or the facts pre-
sented thereat rejected the proof and the application to enter by the
townsite board, and reserved for determination hereafter any rights
which Alonzo Brummett and M. Winfield may have in the land, when
they present applications for it, and said decision is affirmed.
472 DECISIONS RELATING TO THE PUBLIC LANDS.
Hodges et al. v, Golcobd.
Motion for review of departmental decision of February 27, 1897, 24
L. D., 221, denied by Secretary BUss May 25, 1897.
PRACnCaB-ATTORNEY-CONTEST-GUARBTAN— PBJBFEBEyCE lUGHT.
Phillips v. Smith.
An attorney in good standing, admitted to practice before the Department^ is not
required to file written authority to appear on behalf of his client.
A duly appointed guardian of the minor children of a deceased soldier may institnte
a contest, on behalf of his wards, against an entry, and, in the event of saccess,
exercise the preference right by filing a soldier's declaratory statement for the
benefit of said minor children ; and this right will not be defeated by the fail-
ure of the guardian to set forth in the affidavit of contest the capacity in which
he was then acting.
Secretary Bliss to the Commissioner of the Oeneral Land Office^ May 26.
(W. V. D.) 1897. (W. M. W.j
The case entitled Tiltou S. Phillips, administrator and guardian, r.
Albert A. Smith, has been considered on the appeal of the latter from
your office decision of December 18, 1895, rejecting the desert laod dec-
laration of said Smith for the NE. \ of Sec. 24, T. 9 ^., R. 22 E., W. M.,
Korth Yakima, Washington, land district.
Counsel for Phillips asks to have the appeal dismissed :
1. The time for appealing from the decision of the Honorable Conunissioner bad
exx)ired before this appeal was taken. Rule 83 U. S. L. O. Practice. 2. The attor-
neys, Wbitson and Parker, have no authority to institute the appeal herein uDcler
rule 101 G. L. O. Practice, not having filed any written authority from the appellant,
Albert A. Smith.
The register of the local office reported to your office, under date of
February 24, 1896 :
That the parties were duly notified of your decision therein by registered mail
on December 24, 1895 (the receipts for which are herewith enclosed), and Phillips
appeared and filed soldier*s declaratory statement No. 42, covering the tracts involved.
And that on this 24th day of February, 1896, A. A. Smith filed his appeal ftom your
decision.
The post office registered receipt, dated on February 24, 1896, with
affidavit of mailing of the appeal, is attached to the papers showing the
appeal was mailed on said date, addressed to the attorney for Phillips.
It is clear that the motion to dismiss the appeal is without merit, for
the reason that the notice of the appeal is shown to have been served
in time under liuleST of the Rules of Practice, and for the further reason
that an attorney in good standing, admitted to practice before tbe
Department, is not required to file written authority to appear on behalf
of his client. Dober v. Campbell et al. (on review), 18 L. D., 88.
DECISIONS RELATING TO THE PUBLIC LANDS. 473
It appears that on February 1, 1892, WalUs B. Williams made home-
stead entry for the land in question.
On March 13, 1893, Tilton S. Phillips filed an affidavit of contest
against Williams's entry, alleging abandonment. Said contest was
finally decided in favor of Phillips by the Department on April 18,1895
(306 L. and R., 478). Said entry was canceled by your office letter of
June 26, 1895.
On July 2, 1895, Albert A. Smith offered to file his desert land decla-
ration for the land in question, and tendered the requsite purchase
money. The register suspended this declaration to await the action
of Phillips under his preference right as a succeissful contestant.
On July 22, 1895, Tilton S. Phillips offered by virtue of his prefer-
ence right to tile a soldier's declaratory statement in his capacity as the
duly appointed administrator of Clayton S.Phillips, a deceased soldier,
and guardian of his minor children, Ina May, Oliver Morton, Joseph
Clinton, and Myrtle Grace Phillips.
Tilton L. Phillips filed with his application an affidavit, stating that
he IS the identical person who contested Williams's entry for the land
in question, and that he
did the same as admiuistrator and guardian of the estate of Clayton S. Phillips, de-
ceased, not having any right of my own to nse. That at the time I instituted this
action I asked that my filing for this land be accepted by the land office, and was
informed that it was not necessary, that I would be allowed thirty days after can-
cellation to make my said filing of record.
He presented with his application a copy of the discharge of Glayton
S. Phillips from the United States army, which shows that said soldier
was enrolled as a private in Company H, 0th Mo. Cavalry, on the 10th
day of January, 1862, to serve three years or during the war, and was
honorably discharged on the 30th day of January, 1865. Also certified
copies of his appointment as administrator of the estate of Clayton S.
Phillips, deceased, dated June 10, 1888, and of his appointment as
guardian for Ina May Phillips et al.^ on January 20, 1893.
The register and receiver rejected Phillips' application to file soldier's
declaratory statement on the ground :
That in the contest of T. S. Phillips r. W. B. WUliams, by which the tract described
were made subject to entry, the parties in whose interest and name this entry is
Boaght to be made are strangers to the record and have no preference right to file
therefor, and that Albert A. Smith filed D. L. application for the same land on July
2, 1895.
Phillips appealed.
On December 18, 1895, your office reversed the judgment of the local
ofiAcers, on the grounds that:
Under Sec. 2807 R. S. of U.S., the guardian had a clear right to make a homestead
filing and entry for the benefit of his wards, and he was not deprived of such right
by the fact that the land upon which he desired to exercise it was covered by the
abandoned entry of Williams, which he, the guardian, proceeded to remove from the
474 DECISIONS RELATING TO THE PUBLIC LANDS.
TecordB; going to coniiiderable expense with the laudable object in view of provid-
ing a home and sustenance for his orpbaned charges.
After the guardian had removed the obstacle which barred the way to the accom.
plishment of this worthy purpose, it would be extremely inequitable to allow a
stranger, like Smith, to reap the benefits of Tilton S. Phillips' charitable work cod-
Bcientiously performed in the discharge of his duty to his wards.
Smith appealed.
The assignment of errors is as follows:
1. Error committed in holding that a preference right to enter a tract of land can
be acquired by contest in the name of another.
2. Error committed in considering the ex parte affidavit accompanying the appli-
cation of said Phillips without service upon or notice thereof to Smith.
3. Error committed in holding that the preference right to enter, acquy«d by cod-
teet, can be transferred.
4. Error committed in rejecting the application of Smith to enter said land.
5. Error committed in allowing the application of said Tilton S. PhUlips as
guardian.
In support of these errors the cases of Welch v, Dancan et af., 7 L. D.,
186; Kellem v. Ludlow, 10 L. D., 560; Tillinghast v. Van Houten, 15
L. D,j 394, and Matthews f . Barbarovie, 18 L. D., 446, are cited and
relied upon. These cases hold that the preference right of a successful
contestant can not be transferred to another person; and that a trans-
feree in such case acquires no right that can be asserted as against the
intervening entry of another. If the filing of a soldier's declaratory
statement by Tilton S. Phillips for the land in question, on behalf of
his wards, who are minor children of a deceased soldier, amounts t^
an assignment or transfer of the preference right of entry from said
Phillips to his wards, the appellants' contentions are well founded and
should be sustained. If, on the other hand, Phillips as the duly
appointed and qualified guardian of the minor children of a deceased
soldier had the right under the law to prosecute a contest agahist
Williams's entry, and, upon the successful termination of said contest
resulting in the cancellation of said entry, to exercise such prefereDce
right by filing a soldier's declaratory statement in the names and for
the benefit of his wards, then plaintiff's contention must fall, and yoar
office decision be affirmed.
Before considering these questions, it seems to be proper to observe
that during the time allowed Phillips as a successful contestant to
exercise his preference right of entry under the law every question in
connection with the exercise of that right was solely between Phillips
and the government. If he exercised his right in accordance with law,
Smith would have no right to complain, for he could acquire no right
under his desert application until after the thirty days allowed Phillips
by law to assert his claim had expired. Allen v. Price, 16 L. D., 434;
Cowles c Huff et. aZ., 24 L. D., 81, and authorities citied.
Phillips's application to file soldier's declaratory statement was made
within the thirty days allowed by law to assert his preference right of
entry, and during that time all he was required to do was to satisfy the
DECISIONS RELATING TO THE PUBHC LANDS. 475
government that he was asserting the right in the same capacity that
he instituted and carried on the contest.
The capacity in which Phillips contested Williams's entry and the
capacity in which Phillips might desire to exercise his preference right
were of no concern to Smith, for, if Phillips could show the government
that he commenced and carried on the contest in the same capacity
that he was asserting his preference right, and that he could lawfully
make an entry in such ctipacity, and did make such entry, or its equiv-
alent, in accordance with law, then Smith's desert application would
^ve him absolutely no right to the land as against Phillips.
The record shows that at the time Phillips commenced the contest
he was the duly appointed guardian for the minor children in whose
behalf he sought to file soldier's declaratory statement; his affidavit
shows that he had no right of his own to use as an individual contest-
ant in making an entry in his own name; that at the time he instituted
the contest he asked that his filing for the land be accepted. From
these facts it is reasonable to presume that he was acting for the benefit
of his wards from the commencement of the contest; and in case he
should be successful in his contest that he intended to make an entry
in the names and for the benefit of his wards.
From these statements it is clear that there was no such a thing as the
transfer or assignment of the preference right in the whole transaction.
^^ Assignment" in the law of contracts means a transfer or making over
to another of any property, real or personal, in possession or chose in
action, or of any estate or right therein. Phillips's affidavit shows
that there was no change in the rights of the parties from the begin-
ning of the contest to the time he offered to file in behalf of his wards.
The mere fact that he did not attach the word ^^ guardian" after his
signature to his affidavit of contest, or allege in the body of his charge
that he was acting in the capacity as guardian in his contest against
Williams, can not be held sufficient to defeat his right as such guardian
under the law to make the entry of the land under the preference right
accorded by statute.
Section 2304 of the Revised Statutes permits every private soldier
or officer who has served in the United States army during the recent
rebellion for ninety days, and who was honorably discharged, and has
remained loyal to the government, to enter upon. and receive patents
for a quantity of public lands not exceeding one hundred and sixty
acres.
Section 2307 provides that:
In caee of the death of any person who would be entitled to a homestead nnder
the x^rovisions of section two thousand three hundred and four, his widow^ if
Qumarried, or in case of her death or marriage, then his minor orphan children by a
^lardian, duly appointed and officially accredited at the Department of the Interior,
shall be entitled to all the benefits eunmerated in this chapter.
Under this section it is clear that Phillips, as the duly appointed
476 DECISIONS RELATING TO THE PUBLIC LANDS.
gaardian of the miDor orphan children of his deceased brother, wonld
have the right to make an entry for and in the names of his wards.
There was no error in your office decision appealed from. It is there-
fore affirmed.
OKLAHOMA JL.AJNDS--SETTLEMENT BIGHTS.
HeNLINE V. GiNDEB.
The mle recognizing slight acts of settlement, as between parties making the ran
for Oklahoma lands on the day of opening, is not applicable to the ordinsrj
case of a party who claims priority of settlement.
Secretary Bliss to the Commissioner of the OenercU Land Office^ Ma/y 25,
(W. V. D.) 1897. (C. W. P.;
The land involved in this controversy is the SB. J of Sec 19, T. 23
K., E. 10 W., Alva laud district, Oklahoma.
On September 26, 1893, Kate Ginder made homestead entry, No. 6*2^,
of said land.
On October 26, 1893, H. P. Henliue filed affidavit of contest, charg
ing that he made settlement on said land about ten o'clock A. M., Sep-
tember 22, 1893, and prior to the settlement and entry made by said
Kate Ginder.
A hearing was had ; the local officers decided in favor of E^ate Gin-
der, and recommended that the coutest be dismissed. On appeal, yoor
office, by decision dated December 19, 1896, affirmed the judgment of
the local officers. The contestant appeals to the Department
The acts of settlement, as testified to by the contestant, are: Th'At
he went upon the land about seven o'clock A. M., September 21, 1893,
and stuck a stake in the ground about forty rods west of the southeast
corner and about fifty yards north of the south line of the quarter sec-
tion. Later in the day he threw up a mound two feet high, about two
hundred yards northwest of said corner, and wrote his name on a
blazed tree about fifty yards southwest of the mound. He then left
the land, went to Alva, and thence to his home in Kansas.
The contestant also testified that he established his residence on the
land, with his family, in the month of March following his settlemeut
and since then has continued to reside upon the land, and he has a
comfortable house and has broken and cultivated about twenty-five
acres, and has other improvements. His testimony is corroborated by
two witnesses.
On the other hand, the defendant, her father, David Ginder, and J.
S. Warnstaff testified that they went upon the land on the morning of
the 22d of September, and that they saw no one on the land claimiug
it, nor any signs of settlement.
The acts of settlement on which the contestant relies are such as
have been recognized by the Department as valid acts of settl^nent
DECISIONS RELATING TO THE PUBLIC LANDS. 477
in the case of Oklahoma lands, as between adverse claimants who
made the race for lands on the day of the opening of the Territory to
settlement. Bnt these rulings are based apon the peculiar circum-
stances under which the run was made for homes on the lands opened
to settlement. They are not applicable to the ordinary case of a party
who claims priority of settlement on the public lands. In the latter
case it is well established that to constitute settlement the settler must
go ux>on the land and do some act, by which the public may have notice
of his claim, and that such act must consist of some substantial and
visible improvement, having the character of permanence, with an
intent to appropriate the land under the settlement laws.
It is manifest that the acts of settlement in this instance were wholly
insufficient to give notice to the public that the land was settled upon
by a bona fide settler.
The defendant and her witnesses did not see the stake or the mound
when they went upon the land in the morning of the 22d of September,
and when she made her entry on the 26th of Sei)tember following, it
was without knowledge of the contestant's claim to the land.
For these reasons, I am of opinion, that the contestant has no right
to the land and your office decision is affirmed.
CONTESTANT— PREFERENCE RIGHT— INTERVENING ENTRT.
LA\I9RENCE V. Seeger et al.
In the case of a departmeutal decision rendered prior to the change of practice, fol-
lowing the decision in Allen v. Price, as to closing cases on review, bnt wherein
notice of anch decision is not given by the local office until after such change of
practice, the contestant is entitled to the protection provided for under the new
practice.
Secretary Bliss to the Commissioner of the General Land Office^ May 25^
(W. V. D.) 1897. (W. A. E.)
On April 23, 1889, John E. Furlong made homestead entry for the
N W. i of Sec. 15, T. 11 N., E. 3 W., Oklahoma, Oklahoma land district.
On April 25, 1889, Thomas J. Lawrence filed affidavit of contest
against said entry, alleging
that the said John R. Furlong entered upon and occupied said mentioned land prior
to twelve o'clock, noon, on the 22d day of April, 1889, in violation of law and con-
trary to the President's proclamation opening said lands for homestead settlement;
and further, that this contestant entered upon and occupied said lands after twelve
o'clock, noon, on the 22d of April, and commenced bona lide improvements, and is so
occupying said land.
A hearing was had on this contest, and resulted in a decision by the
local officers in favor of the contestant.
Furlong appealed to your office, which, on December 19, 1891, affirmed
the decision of the register and receiver and held the entry for cancel-
lation.
478 DECISIONS RELATING TO THE PUBLIC LANDS.
On January 10, 1892, daring the time allowed Furlong in which to
appeal to the Department, Henry W. Seeger filed his homestead appli-
cation for the tract. This application was rejected by the local officers
and Seeger appealed.
Subsequently, Furlong appealed to the Department^ which, on Octo-
ber 10, 1892, affirmed your office decision. *
On October 24, 1892, your office promulgated said departmental deci-
sion, canceled Furlong's entry on the records, and threw the land open
to entry by the first qualified applicant, subject only to the contestant's
preference right. This action was in accordance with the practice
then existing.
On November 15, 18i92, however, the Department, in the case of Allen
V. Price (15 L. D., 424), changed the practice in regard to closing cases
after final decision by the Department. Since the date of that decision,
when the Department renders a judgment of cancellation, your office
promulgates the decision, without canceling the entry on the records,
and holds the case open until after the expiration of the time allowed
for filing motion for review or rehearing. If no motion for review or
rehearing is filed within the time allowed, the case is closed, the entry
is canceled on the records, and the land is reserved for the benefit of
the contestant during the statutory period provided for the exercise of
his preferred right of entry.
On November 26, 1892, the local officers served notice upon Lawrence
of the cancellation of Furlong's entry, but advised him that under the
decision in the case of Allen v. Price, he should wait until after the
expiration of the time allowed for filing motion for review before exer-
cising his preference right.
There is nothing in the record to show when notice of said depart-
mental decision was served upon Furlong. The local officers report
that there is no proof in their office of service upon him. On January
6, 1893, however, he filed a motion for review of said decision.
On April 8,1893, Seeger appeared at the local office, presented a with-
drawal by Furlong of the motion for review, and renewed his own
application to enter the tract. Said application was accepted by the
register and receiver and placed of record.
On April 19, 1893, Lawrence filed his homestead application for the
land, which was rejected for conflict with Seeger's entry.
Lawrence appealed, and on December 27, 1893, your office held that
his right was superior to that of Seeger, and called upon Seeger to
show cause why his entry should not be canceled.
Notice of this decision was served upon counsel for Seeger on Janu-
ary 4, 1894, but no showing was made in support of said entry.
On August 17, 1895, said attorneys were served with a second copy
of your office decision of December 27, 1893, and on September 27, 1895,
Seeger filed appeal to the Department.
Your office, however, by letter of November 20, 1895, declined to
DECISIONS RELATING TO THE PUBLIC LANDS. 479
forward said appeal, for the reason "that the decision of December 27,
1893, ordering him to show cause, is not appealable." It was farther
held by your office
That Seeder has failed, after due uotice, to make auy showing in support of his
entry, and the same is hereby held subject to the right of Lawrence to exercise his
preference right.
Seeger thereupon filed a second appeal to the Department, and the
c^se is now here upon that appeal.
Lawrence contested Furlong's entry, not on the ground of prior set-
tlement, but on the ground that Furlong was disqualified. It is iitne
that he alleged settlement on April 22, 1889, but he did not claim that
he had settled prior to Furlong. On the contrary, he testified at the
trial that Furlong was on the land when he reached it. The time when
he actually settled, then, was immaterial, as he had no rights as against
FurloDg by virtue of that settlement. On the cancellation of Furlong's
entry, Lawrence had a contestant's preference right for a period of
thirty days, aud the principal question for consideration here is as to
the date when that preference right began to run.
Before notice was served upon him of departmental decision of
October 10, 1892, the practice in regard to closing cases after final
judgment by the Department had been changed. When the local offi-
cers advised him, then, that he should not attempt to exercise his pref-
erence right until after the expiration of the time allowed Furlong for
filing motion for review, they were following the new practice — the
practice authorized by the decision in the case of Allen v. Price.
Under that decision it was their duty to reserve the land from entry
until after the expiration of the time allowed foir filing motion for
review, and had Lawrence tendered his homestead application during
that time they would have had to reject it.
Furlong filed motion for review on January 6, 1893. The effect of
that motion was to suspend all further action in regard to this land
untjl it had been disposed of. It was withdrawn on April 8, 1893, and
at no time prior to that date could Lawrence's preference right as a
successful contestant have attached.
He filed his homestead application on April 19, 1893, and conse-
quently was in time. It was error on the part of the local officers to
allow Seeger to make entry on April 8, 1893.
Your office decision holding Seeger's entry subject to the superior
right of Lawrence is affirmed.
480 DECISIONS RELATING TO THE PUBLIC LANDS.
SURVEY OF PUBLIC LANI>S-OrFICIAL PLAT.
George W. Fisher.
The approved plat of an official survey is conclasive as to the designation of tracts
embraced therein, and must govern in the disposal of the lands covered thereby.
Secretary Bliss to the Oommissioner of the General Land Office, May 25,
(W. V. D.) 1897. (W. M. B.)
Qeorge W. Fisher appeals from your office decision, of May 2, 1896,
rejecting bis amended application of April 7, 1896^ to purchase the SB.
fractional quarter, Sec. 28, T. 37 K, R. 7 W., 2nd P. M., Indiana, under
the act of June 3, 1878 (20 Stat., 89) as amended by the act of August
4, 1892 (27 Stat, 348).
The ground upon which said application was denied is stated in words
following:
As shown by the official plat in this office the area of the fractional part of section
28 applied for was surveyed as a part of section 83, and the area of said tract is
included in the area of the £. i of the K£. i said section 33, north of the Indian
boundary line. The entire NE. ftact. i, said section 33 north of the Indian boundary
line being embraced in the location of military bounty land warrant No. 63932.
» « « • • • •
Your application still stands rejected subject to your right of appeal, for the reason
that the land applied for was surveyed as a part of section 33 and has been disposed
of as ubove set forth.
In his appeal from said decision applicant assigns allegations of error
as follows:
1. That the Commissioner erred in holding that the SE. fractional i. Sec. 28, T. 37
N., R. 7 W., 2nd P. M., Indiana, was surveyed as a part of Sec. 33, T. 37 N., B. 7 W.,
2nd P. M., Indiana.
2. That the Commissioner erred In holding that the SE. fractional i, Sec. 28, T. 37
N., R. 7 W., 2nd P. M., Indiana, is embraced in the location of military bounty land
warrant No. 63,932 and was patented on Feb*y 15th, 1858, to Joseph £. Lange.
Thus it is seen that the said SB. fractional quarter of said Sec. 28 is
the tract in controversy.
On February 5, 1857, Joseph E. Lange made application under provi-
sion of the act of March 3, 1855 (10 Stat., 701) to locate, and did locate
on said day, a certain tract of land, for which patent issued to him on
February 15, 1858, the description whereof, as contained in said patent
is as follows:
* * * the northeast quarter (north of the Indian boundary line) of section 33
in township 37 north, of ran^e 7 west, in the district of lands subject to sale at
Indianapolis, Indiana, containing one hundred and thirty-one acres, and fifty hun-
dredths of an acre.
The General Land Office held as hereinbefore stated, that the small
tract involved was surveyed as a part of Sec 33, and was attached
thereto, while appellant, 2>er contra, contends that it was not so surveyed
DECISIONS RELATING TO THE PUBLIC LANDS. 481
and attached, aud contends, farther, that the area of the tract iu ques»
tion coold not have been merged into that of Sec. 33 since, as alleged^
there is no authority for ^^ transx)Osing land from one section to another ,''
wherefore it is insisted that the tract in dispute could not pass to Langd
under his patent.
Under the rule laid down by the supreme court in the case of CragiiB
V. Powell (128 U. 8., 691) the question raised by appellant that land
cannot be ^Hransposed from one section to another" — though that par-^
ticular question is not discussed iu that case — is pretermitted or elimi'
nated from the controversy^ In the case cited the court held {syllabus) r
When lands are granted according to the official plat of the survey, the plat, with
its notes, lines, descriptions and land marks, becomes as much a part of the grant or
deed by which they are conveyed, and, so far as limits are concerned, controls as
much as if such descriptive features were written out on the face of the deed or
grant.
The question at issue in the present case is, therefore, determinable
by the evidence furnished by the official plat of the survey in which the
land in question is embraced.
A lithographic copy of the official plat — of the said survey, executed
in April, 1830, of the lands hereinbefore described, together with that
of adjacent lauds — as made, approved and returned by the surveyor-
general, and accepted by the General Land Office is filed with the rec-
ord in the case, and the fact that the small fractional part of Sec. 28
was not platted as a separate subdivision, but as a part of the E. ^ of
NE. i (north of the Indian boundary line) of Sec. 33, will appear from
the disclosures made by the official plat, and the method pursued in
platting surveys of the public lands.
Where fractional sections are too small to be designated as quarter^
quarter sections they are, as a general rule, either numbered as lots or
are merged in some other legal subdivision. An examination of the
above referred to plat will show that no specific designation is given to
SE. fractional quarter. Sec. 28, such as a fractional subdivision or lot.
It appears from the official plat that the eastern boundary line of the
E. i of the fractional Sec. 33 extends from the Indian boundary line—
a distance of 36.16 chains — all the way to Lake Michigan, thus show-
ing that no east boundary line was recognized as established for the
SE. fractional quarter, section 28, as an independent subdivision, iu plat-
ting the survey. The use of a dotted^ instead of a full or solid line — ^indi-
cating the course run by the deputy surveyor, 20.50 chains in length, on
the south of said SE. fractional quarter. Sec. 28 — in platting the survey,
shows that said course was not recognized and adopted as an estab-
lished line.
Furthermore, the surveyor-general — as will be observed from the
plat — platted and returned the E. ^ of the NE. J of fractional section
33 as having an area of 69 acres. Said subdivision could not contain so
large an area without having merged therewith the area of the tract in
10671— VOL 24 31
482 DECISIONS RELATING TO THE PUBLIC LANDS.
•eontroverey ; the area of that portion of the £. i of the NE J of Sec 33
lying between the Indian boaudary line on the eonth and the dotted
line extending across the northern portion thereof— and 0.50 chs. beyond
4uid west of the west boundary line of this said subdivision— is 65.32
acres, while the area of that part of this same subdivision which lies
l>etween said dotted line and Lake Michigan is computed at 3.G8 acre;^
making the said total of 69 acres as the correct area of the £. i of the
!NE. i said Sec. 33. The table of contents of the various subdivisions
show that no separate area was computed and returned for the tee-
tional part of said Sec. 28 as such. The W, i of the NE. |^of fhictioual
Sec. 33 was platted and returned as ooaqnisnig an area of 62.50 acres,
which is approximately correct.
Thus it appears that the total actual area of the laud embraced in the
NE. i (north of the Indian boundary line) of Sec. 33, T. 37 K, R. 7. W.,
is 131.50 acres, there being included in said area, as already stated,
that of the fractional part of section 28, applied for, which was surveyed
as a part of the NE. | of Sec. 33, as shown by the official plat, all of
which said NE. ^ of Sec. 33 was patented to Joseph E. Lange according
to the plat thereof as hereinbefore appears.
For the foregoing reasons the decision of your office of May 2, 1896,
rejecting Fisher's application to purchase the land in question is hereby
affirmed.
RAILROAD L^NDS-ACT OF MARCH 8, 1887.
GiLMOBE V. BBOADWBJLL.
The right of purchase under section 5, act of March 3, 1887, cannot be recognized, if
the bona fide character of the oonveyance, under which the applicant claimB, is
not established.
Secretary Bites to the Commissioner of the General Land Office^ May 26^
(W. V. D.) 1897. (F. W. C.)
Samuel J. Gilmore has appealed from your office decision of July 23,
1896, holding that he has failed to establish his claimed right to par-
chase, under the fifth section of the act of March 3, 1887 (24 Stat, 556),
as a bona fide purchaser, the NB. J of Sec. 9, T. 3 S., R, 67 W., Denver
land district, Coh'rado.
This tract is within the limits of the grant to the Kansas Pacific Bail-
road Company (afterwards the Union Pacific Railroad Company), the
rights under which attached upon the definite location of the road
March 3, 1869. At tbat date the land was embraced in the pre-emp-
tion declaratory statement of Philip Zehuer, filed December 3, 1S6(),
l>ut upon a contest instituted by the company, said filing was ordeml
canceled by your office letter of July 2, 1874. Thereafter, to wit, May
10, 1882, the railroad company listed the tract.
DECISIONS RELATING TO THE PUBLIC LANDS. 483
On June 13, 1885, John M. Broad well teudered Lis homestead appli-
cation for the land, which was rejected by the local officers for conflict
with the railroad claim under its list above referred to; from which
aetMHi Broadwell appealed.
The case was prosecuted to this Department, and by decision of Sep-
tember 11, 1890, the previooa adjudication of 1874 was set aside, the
tract in question beiug held to have been excepted from the company's
grant by reason of the filing by Zehner, of record at the date of definte
location, and a hearing was ordered to determine the respective rights
of Broadwell and Zehner, the x)re-emptor, who, in the meantime, had
filed an appiicfition for reinstatement of his pre-emption filing.
On February 16, 1891, Samuel J. Gilmore filed a protest against pro*
eeeding with the hearing between Broadwell and Zehner, in which he
alleged that the tract in question was sold and conveyed by the Union
Pacific liailroad Company to the Platte Land Company on April 18,
1882; that in the year 1886 said tract was sold and conveyed by the
Platte Land Company to him (S. J. Gilmore); that Lhe tract was en-
closed by a lawful fence, has two dwellings on it, and is occupied and
in possession of tenants who farm it under lease from said Gilmore.
Although no formal application was made under the provisions of
section 5 of the act of March 3, 1887 (sMpra)^ as explained by the
answer filed on behalf of Broadwell to dismiss Gilmore's protest, the
purpose of the protest was to apprise the Department of Gilmore's
claimed rights through the purchase made of the railroad company,
with a view to granting him an opportunity to ofier proof in support
of his claimed rights under the act of March 3, 1887 (supra).
On March 2, following, Zehner dismissed his application for rein-
statement and Broadwell was permitted to complete homestead entry
for the land. No action appears to have been taken upon Gilmore's
protest until December 5, 1891, when the same was dismissed by the
local officers^ from which action he appealed.
The action of the local officers was sustained by your office, and Gil-
more apx)ealed to this Department, the matter being considered in
departmental decision of October 9, 1894 (not reported), in which your
office was directed to order a hearing
to afford the plaintiff (Gilmore) an opportunity to show his rights and olaim to said
land as a bona fide purchaser from the railroad company and offer evidence in sup-
port of his protest.
Section 5 of the act of March 3, 1887 (supra)^ under which Gilmore
is attempting to establish a right, provides as follows:
That where any said company shall have sold to citizens of the United States, or
to persons who have declared their intention to become such citizens, as a part of
its grant, lands not conveyed to or for the use of such company, said lands being the
numbered sections prescribed in the grant, and being coterminous with the con-
structed parts of said road, and where the lands so sold are for any reason excepted
from the operation of the grant to said company, it shall be lawful for the bona fide
purchaser thereof from said company to make payment to the United States for said
484 DECISIONS RELATING TO THE PUBLIC LANDS.
lands at the ordinary govemment price for like lands, and thereupon patents shall
issue therefor to the said bona fide purchaser, his heirs or assigns.
Under this section it mast be shown that the applicant to purchase
18 (1) a citizen of the United States, or has declared his intention to
become sach citizen; (2) that he is a bona fide purchaser; and it has
been uniformly held that these two essentials mast be shown by the
applicant. Thus in the circular of August 30, 1890 (11 L. D., 229), it
was said :
It can make no difference, in my judgment, whether the applicant is the immedi-
ate purchaser from the company, or a purchaser one or more degrees removed. If
he is a bona fide purchaser of the land, and has the required qualificationa as to
citizenship, he is within the intendment of the statute, and if he be not the origi-
nal purchaser from the company it is immaterial what the qualifications of bis
immediate grantor, or the intervening purchasers may have been. If his immediace
grantor was a foreigner, and his purchase was simply for the purpose of acqniriug
title from the government for the benefit of the foreigner, he would not be a hoita
fide purchaser, and would not therefore come within the terms of the act.
See also Sethmau v, Glise (17 L. D., 307) and Union Pacific B. K. Co.
V. McKinley (14 L. D., 237).
After numerous continuances, and in accordance with the depart-
mental order of October 9, 1894, hearing was duly had on Decemb^
5, 1895. The register and receiver recommended that Gilmore*s pro-
test be dismissed and that Broadwell's homestead entry remain intact;
from which action Giliuore appealed to your office, resulting iu your
office decision of July 23, 1896, now appealed from.
The testimony ofiPered on behalf of Gilmore was that of several
witnesses tending to show that Zehner, the original preemptor, did
not make settlement upon this land preceding the fiUng of his declar-
atory statement in the local office; that he never actually resided upon
the land; that the notice of the hearing had in 1874, upon the coDte^t
instituted by the company against Zehner's filing, was duly published;
and that certain improvements, consisting of fencing, the building of
two houses, and the construction of flumes and irrigating ditches, were
made upon this land, supposedly by Gilmore. Copy of a warranty
deed executed April 18, 1882, on behalf of the Union Pacific Bailrosid
Company, transferring this tract, together with other lands, to the
Platte Land Company, a foreign corporation, was offered in evidence;
also copy of a quit claim deed executed August 1, 1886, by the Platte
Laud Company, to Samuel J. Gilmore, the same being acknowledged
February li, 1887. The consideration named in this deed is $5,000,
and the land quit-claimed amounted in the aggregate to about 3,000
acres.
Gilmore, although duly advised of the hearing ordered for the
purpose of permitting him an opportunity to establish his ilaiined
right as a bona fide purchat^er, did not appear personally at the licaring,
nor was his deposition offered in support of the alleged claim made in
his behalf that he in good faith purchased the land in question for a
DECISIONS RELATING TO THE TUBLIC LANDS. 485
valuable consideration from the Platte Land Company. He was repre-
sented by counsel at tbe bearing, and although several applications
were made for a continuance, the same do not appear to have been
asked in order to secure his testimony ; and from the record made at
the hearing his absence was not explained or excused.
From the record before me, aside from the copy of the quit claim
deed referred to, there is nothing to show that Gilmore ever purchased
this land; that any consideration was ever paid by Gilmore; or that
the conveyance to him was an honest transaction having as its purpose
the actual conveyance of the land in question to Gilmore to be held by
him in his own right and not for the ultimate benefit of his grantor.
At the time of the execution of this quit claim deed, it is shown that
Gilmore was representing the Platte Land Company in Denver, Colo-
rado, as its agent and attorney in fact, with authority to sell any of its
real estate in Colorado and to make and deliver deeds of same, with or
without convenants or warranty. It also appears that the bill which
afterwards became the act of March 3, 1887, under which he is now
seeking to purchase, was then pending in Congress, and under its pro-
visions excluded from the benefit granted thereby the foreign corpratiou
which he represented ; and that in another case Gilmore made affidavit
placing upon the laud covered by said quit claim deed a total value of
from twenty-five to thirty thousand dollars.
When viewed in the light of this showing, which tends to discredit
tbe bona fide character of the alleged conveyance by the land company
to Gilmore, it must be held that the showing made in his behalf in
support of his protest looking to the purchase of this land under the
fifth section of the act of March 3, 1887, falls short of establishing the
alleged transaction as a bona fide and actual transaction, as distin-
guished from a feigned conveyance made to enable the Platte Land
Company to indirectly obtain title to land to which it could not obtain
title directly.
I therefore affirm your office decision and hold that, although due
opportunity has been afforded Gilmore, he has failed to sustain his
rights and claim to the land as a bona fide purchaser from the Platte
Land Company, and his protest is therefore dismissed and Broadwell's
entry x>ermitted to remain intact, subject to compliance with law.
486 DECISIONS RELATING TO THE PUBLIC LANDS.
STATE 8ELa:CTIOK— MINERAL LAND-CERTTFICATIOX.
Simon B. Arnold.
A hearing will DOt be ordered on an allegation that a tract of land, embraced withu
a certified list of State selecttonB, waa not, on account of its prior known min
eral character, intended to be granted to the State, except npon a strong j»n ma
faiAe showing in support of such allegation.
Secretary Bliss to the Commissioner of the General Land Office^ May 27^
(W. V. D.) 1897. (E. B., Jr.)
The land involved in this case is the SW. J of Sec 34, T. 33 liT., E. 5
E., Seattle, Washington, land district. - It was selected Janaary 5,
1893, by the State of Washington, per list No. 2, under the grant to
that State and certain other States by section sixteen of the enabling
act of February 22, 1889 (26 Stats., 676), for the use and support of
agricultural colleges therein. See also, in this connection, sections ten,
eighteen and nineteen of the same act. The list containing this and
other selections was approved by the Secretary of the Interior May 7,
1894, as provided in sections ten and sixteen of said act; and on May
12. 1894, the said list of selections was duly certified to the State by
your office (section 2449 R. S.) and receipt thereof acknowledged by the
governor of the State on May 21, 1894.
On October 8, 1895, Simon B. Arnold offered his coal declaratory
statement for the tract above described, alleging possession thereof
since March 18, 1895. The local office rejected his offered filing October
11. 1895, because of the previous selection by the State of said tract
for its agricultural college. This rejection, on appeal by Arnold, yoiir
office, on February 9, 1896, affirmed, on the ground that by reason of
said selection, approval and certification, the land department had, for
more than a year prior to the offered filing, been without any jurisdic-
tion to entertain an application for the land. Arnold prosecutes an
appeal to the Department, assigning error by your office as follows:
1. Error in findiog that the selection of the above described land by the State had
been approved.
2. Error in not ordering a hearing and allow coal claimant to jtrove his case.
In his argument upon the first assignment of error appellant asserts
that, although the records of the local office show the filing there* and
approval by the local office, of the State's selection of said land, there
is nothing in that office ^^to show that the selection had been confirme<l
by the General Land Office," meaning by the words quoted, presumably^
that the records of the local office do not show the fact of the approval
of the Secretary and the certification by your office of the approved list
to the State. Your office records show that a copy of the approved
list advising the local office of certification was sent to that office May
12. 1896, but they aflford no evidence of the receipt of such copy by the
local office.
DECISIONS EELATINO TO THE PUBLIC LANDS. 48 T
Whatever the facta may be as to the receipt of such copy by the
local office, and as to the alleged incompleteness of the records there
in the premises, they are immaterial as bearing upon the question of
the status of Arnold's offered coal filing. The approval and certifica-
tion of said list appear to have been duly made long before said filing
was ofifered or any possession of the land by Arnold is alleged. It was
anfortnnate, if it be true, that these facts were not of record in the local
office at and prior to the alleged commencement of Arnold's possession
of the tract. But incompleteness, as alleged, of the records there
would not avail to change the actual status of the tract, nor furnish
ground upon which your office or the Department could relieve Arnold
against the rejection of his offered filing. Said certification operated,
and will continue to operate under the terms of the grant and section
2449 B. 8. until the Secretary's approval is canceled or vacated by
competent authority, to divest the land department of jurisdiction over
the land. Arnold's filing was therefore properly rejected.
Tour office did not pass upon the question of ordering a hearing as
to the character of the land, nor make any recommendation thereon^
although in his appeal from the local office Arnold asked for a hearing.
It would appear, however, from your office decision that the records of
year office, at and prior to the date of certification to the State, afforded
no suggestion that the tract was mineral in character. In his declara-
tory statement Arnold swears, concerning the land:
I have located and opened a valuable mine of coal thereon and Lave expended in
labor and improvements on said land the sum of four hundred dollars, the labor and '
improvements being as follows: Running a tunnel in on the vein 256 feet and put*
ing the coal out on the dump.
This is corroborated by two affiants. With his declaratory statement
Arnold also presented for filing the joint affidavit of two other persons,,
who therein state that they know the land in question and '^knew the
coal was there prior to October 1, 1891, which was prior to the selection
of said SW. J Sec. 34, Tp. 33 N., E. 5 E,, by the State of Washington.'^
The means of their alleged knowledge of the existence of coal these
I>er8ons do not state.
Section eighteen of said act excluded <<all mineral lands" from the.
grants made by the act; and by section 2449 Revised Statutes, appli-
cable generally to this and similar grants, in addition to providing that
the certification by the Commissioner of the General Land Office, under
the seal of his office, of the approved list of selections,
shaU be regarded as conveying the fee simple of all lands embraced in such lists.
that are of the character contemplated by the act of Congress, and intended to be-
granted thereby,
it is further provided that —
bat where lands embraced in such lists are not of the character embraced by snch.
acts of Congress, and are not intended to be granted thereby, the lists, »o far uh thcHo
lands are concerned, shall be perfectly null and void, and no right, title, claim, ur
interest shaU be conveyed thereby.
488 DECISIONS RELATING TO THE PUBLIC LANDS.
Without passing upon the questioii here, it would seem that under
the grant and the provisions of the last mentioned section , laud known
to be mineral in character prior to the Secretary's approval of the
State^3 list therefor, and iiossibly prior to certification, would be exempt
from the operation of the grant. It would be the duty of your office,
as it might become the duty of the Department in due coarse of pro-
ceedings, upon proper showing that land selected by a State under said
act was mineral in character, to order a hearing in the premises, not-
withstanding the selection had been approved and certified, to the end
that, in the event evidence adduced at a hearing should so warrant, it
might be duly determined that the land was not of the character con-
templated by the act and was not intended to be granted thereby, and
that therefore no title or interest had passed to the State by the
ax>proval and certification. But after such approval and certification
a hearing should be ordered only upou a strong prima facie showing
that the land was known, prior to that time, to be of a character other
than that contemplated by the act.
I do not think such showing is made in this case by the evidence
presented by Arnold and hereinbefore set out — no facts being stated
as a basis for the alleged knowledge of the existence of coal prior to
the State's selection of the land — and his present request for a hearing
is therefore denied. But this will not preclude him from presenting to
your office, within a reasonable time, an application for a hearing, if he
elects so to do, accompanied by such further evidence as he may be
able to present in support thereof.
In accordance with the foregoing, your office decision is affirmed.
MINING CLAIM-ADVERSE AGIUCUL.TURAL. ENTRY.
Caribou Lodb.»
The failure of a claimant under a mineral looation to make objection to the allow-
ance of an agricultural entry of the land is oonclusive as to the right of such
claimant to be heard.
Secretary Smith to ths Commissiofier of the General Land Officej March
11, 1896. (P. J, C.)
The record shows that George Henry Hewitt was permitted to make
mineral entry No. 124 of the Caribou Lode, lot No. 4020, Glenwood
Springs, Colorado, land district, July 18, 1887. The record was regu-
larly forwarded to your office, where, on consideration of the same, it
was determined, by letter of August 4, 1894, that the application and
entry were erroneous, because all the land included therein had been
entered prior thereto, and he was given sixty days in which to show
cause why his entry should not be canceled.
* Not heretofore reported.
DECISIONS RELATING TO THE PUBLIC LANDS, 489
No atteutiou seems to have been given to this order, and your office^
by letter of November 10, 1894, held the entry for cancellatioD, where-
upon Hewitt prosecutes this appeal, assigning numerous grounds of
error.
The statements of your office, showing the prior entries by the Aspen
towDsite, Joseph Thaler and Michael Gannon, are not disputed, but it
is said by counsel that the location of the Caribou antedates the entries
of the two latter, and, it is suggested, by reason thereof Hewitt's right
is superior to the others.
It is true that the Caribou was located prior to the date of the Thaler
and Gannon entries, but, so far as disclosed by the record before me,
there was no objection interposed on behalf of Hewitt or his grantors
thereto, and, in the absence of any i)roceeding instituted for the pur-
|K>se of testing the prior right of the land, the Department must
assume that none exists. This is especially trne when there are alleged
conflicts between agricultural and mineral claimants, because in the
location of a mining claim the record evidence thereof is not made in
the United States land offices, but in the recorder's office of the county
where the land is situated, and the first official information the local
office has of the location is when tbe application for patent is filed
therein. This is not true of agricultural entries. All the record is
made in the local office. Hence, when an application to enter agricul-
tural land is made, if the locators of mining claims on the land have
any objections, they must be vigilant in presenting them. The rules
and regulations provide ample means for this purpose, and if the reme-
dies provided are not pursued, the mineral claimants will not be heard
to complain.
Your office judgment is affirmed.
PRACTICE— APPEAl>-MrLL.E LAC INDIAN I-AND8.
HAaOBEBG BT AL. V. MAHEW.
An appeal wUl not be entertained iu the absence of specification of errors.
Notice of an appeal may be served either upon the adverse party or his attorney.
The joint resolution of December 19, 1893, confirming bona fide preemption filings,
and homestead filings, or entries, within the MiUe Lac Indian reservation, allowed
between Jannary 9, 1891, and the receipt of notice at the local office of tbe
departmental decision of April 22, 1892, operates to validate settlement rights
covered by filings or entries thus allowed, whether initiated before or after Jan-
uary 9, 1891, hence, as between parties claiming under said protective legislation,
priority of settlement may properly form a material issue.
Secretary Bliss to the Commissioner of the General Land Office^ May 58,
(W.V.D.) 1897. (E.B.*Jr.)
This is a contest for title to the SE. J of tbe NE. J of gection 11, and
tbe SW. J of the NW. i and the W. J of the SW. \ of section 12, T. 42
K., E, 35 W.y St. Cloud, Minnesota, land district, the same being coy-
490 DECISIONS RELATING TO THE PUBLIC LANDS.
ered by the pre-emption declaratory statement, No. 2016, filed by Moses
Mabew on February 3, 1891, alleging settlement March 5, 1890.
Ou tbe same day that Mabew filed his said statement, Peter P.
Haggberg a^'.d David Johnston also filed declaratory statements; that
of tbe former being No. 2005, for the E. J of tbe NE. J and the NW. J
of tbe NE. I of said section 11, and tbe SE. i of the SE. ^ of section 2,
same township and range, alleging settlement April 4, 1888, and of the
latter being No. 2022, for the W. J of the NW. 4 and the W. J of
the SW. i of said section 12, alleging settlement December 29, 1800.
It thus appears that Haggberg's filing conflicts with Mahew^s as to the
SE. I of the NE. ^ of said section 11, only, while Johnston's confliet^
with Mabew's, only, as to all of the land claimed by the latter in said
section 12.
Hearings were dnly held between Johnston and Mahew and Hagg-
berg and Mahew, in March 1892, which resulted in a decision by the
local office, December 29, 1893 (the cases being considered together),
in favor of Mahew and adverse to both the other parties. Upon api^e^tls
by Haggberg and Johnston, your office, on September 18, 1806, affirmed
the decision of the local office on the ground that Mahew's rights under
his settlement, followed by due filing, were sui>erior to those of the
other parties, respectively, and held the filings of Haggberg and
Johnston for cancellation to the extent of their conflict with that of
Mahew. Haggberg and Johnston now prosecute appeals here.
The appeal of Haggberg is found to be fatally defective in that,
although the time allowed by the Enles of Practice for giving notice
of an api>eal has long since expired, he has, as appears from the record
before me, filed no specification of errors as required by Bule 88 of
Practice. His appeal is accordingly dismissed. This disposes of Hagg-
berg's connection with the case before this Department.
The attorney for Mahew has filed a motion to dismiss the appeal of
Johnston on the ground that no notice thereof was served upon him
(attorney). It appears that a copy of Johnston^s appeal was served
upon said Mahew himself, by registered letter, November 12, 1896, as
provided in Rule 94, within the time allowed by tbe Bules of Practice,
It is well settled that notice of appeal may be given either to a party
or his attorney (Kule 9G; New Orleans Canal and Banking Go. r. State
of Louisiana, 5 L. D., 479; and Northern Pacific R. R. Co. r. Bass, 14
L. D., 443). The motion is accordingly denied.
The land in controversy is within what was formerly the Mille Lac
Indian reservation. By act of July 4, 1884 (23 Stat., 89), any disposiil
of the lands in said reservation was prohibited "until further legisla
tion.'^ Such *' further legislation" respecting these Mille Lac lands is
found in the act of January 14, 1889 (25 Stat., 642). By section six of
this act "the agricultural lands on said reservation not allotted under
this act nor reserved for the future use of said Indians" were to be
disposed of "to actual settlers only under the provisions of the home*
DECISIONS RELATING TO THE PUBLIC LANDS. 491
stead law," sabject, however, to certain provisos not here in point.
Under the decision of the Department in the case of Amanda J. Wal-
ters €t aL<f dated January 9, 1891 (12 L. D., 52), and departmental letter
of January 21, 1891, unreported, which, together, held that these lands
should be disposed of as other public lands under the geueral laws,
pre-emption filings were allowed by the local office for Mille Lac lands
on and after the receipt of said departmental letter by the local office
(then at Taylor's Falls, Minnesota), on February 3, 1891* Subsequently,
however, by departmental letter of April 22, 1892 (14 L. D., 497), your
office was instructed that the Mille Lac lands were not subject to dis-
position under the general land laws, but under the special provisions
of the act of January 14, 1889 (supra). These instructions were duly
commanicated to the local office by your office.
On December 19, 1893, the following joint resolution of Congress was
approved (28 Stat, 576) :
That all honaftde pre-emption or homestead filings or entries allowed for lands
within the Mille Lac Indian reserration in the State of Minnesota between the ninth
day of January, eighteen hundred and ninety-one, the date of the decision of the
Secretary of the Interior holding that the lands within said reservation were subject
to disposal as other public lands under the general laud laws, and the date of the
receipt at the district land oflBce at Taylors Falls, in that State, of the letter from
the Commissioner of the General Land Office, communicating to them the decision
of the Secretary of the Interior of April twenty-second, eighteen hundred and
ninety-two, in which it was definitely determined that said lands were not so sub-
ject to disposal, but could only be disposed of according to the provisions of the
special Act of January fourteenth, eighteen hundred and eighty-nine (twenty-five
Statutes, six huudred and forty-two), be and the same are hereby, confirmed where
legular in other respects, and patent shall issue to the claimants for the lands
embraced therein, as in other cases, on a satisfactory showing of a bona fide com-
pliance on their part with the requirements of the laws under which said filings and
entries were respectively allowed.
The filings of both Johnston and Mahew were made witliin the period
specified in said resolution. If priority of filing were alone to control,
Mahew's claim to the land in controversy between him and Johnston
is clearly sujierior to Johnston's. But their filings were made, as
already indicated, under instructions which provided for the disposition
of the Mille Lac lauds under the general laud laws, that is, in their
cases, under the pre-emption law then in force, and said resolution
expressly confirmed them " where regular in other respects," and pro*
vided for the issuance of patent ^'to the claimants for the lands
embraced therein," subject, however, to
a satisfactory showing of a honaftde compliance on their part with the requirements
of the laws under which said filings .... were respectively allowed.
The effect of these instructions and this legislation was clearly, there-
fore, to subject these claims of Mahew and Johnston to the operation
of the pre-emption law as in force at the date of their filings, in so far
as the same could be applied in view of the peculiar situation then and
theretofore existing. The question of priority of settlement thus ariseiS
492 DECISIONS RELAXING TO THE PUBLIC LANDS.
necessarily in these cases. The question whether pre-emption settle-
ment rights coald have been acquired as to lands covered by these
filings, by the parties who made snch filings, is forever settled in tbe
affirmative by said joint resolution. That resolution operated to author-
ize and confirm such settlement rights by such parties, whether initi-
ated prior or subsequent to January 9, 1831 , and the decision of your
office, dated March 15, 1895, in the case of Elggren r. Dewey, which
was affirmed by the Department April 24, 189G, is ba«ed on that view.
It only remains to determine the question of priority of settlement
as between Mahew and Johnston. I find the facts upon this point to
be substantially as set out in your office decision. Mahew first went on
the land he claims in January, 1889, but, while he made some improve-
ments thereon during that year and lived there part of the time, he
did not establish his permanent residence there until about March 5,
1890. Since that date, although he was away from the land at work,
as was also his wife (most of the time in attendance upon sick persons)^
from N'ovember 3, 1890, to February 10, 1891, the evidence shows he
had no other home, and that he at no time since March 5^ 1890, aban-
doned the land. Since March 5, 1890, he has in good faith complied
with the requirements of the pre-emption law. On August 10, 1894,
he submitted his final proof for the land covered by his filing.
Johnston did not go upon the land until December 29, 1890, and did
no act of settlement thereon until January 6, 1891. Mahew's house,
household goods, and farming implements were there, to give Johnston
notice of Mahew's settlement. The fact that the house was then (Jan-
uary 6, 1891) temporarily occupied by Indians, without Mahew's knowl-
edge or consent, could not efface Mahew's settlement, nor validate an
attempted settlement by Johnston. The contention of counsel, tbat
Mahew's failure to attempt to file for the land prior to January 9, 1891,
subjected it to settlement by Johnston, is without force. There was no
authority of law under which the hx^al office could have received a pre-
emption filing for the land subsequent to the act of July 4, 1884, supra^
and prior to January 9, 1891; and after that date, and during the
period hereinbefore indicated, pre-emption filing for Mille Lac lands
were receivable only by virtue of the then prevailing departmental con-
struction of the act of January 14, 1889, supra. Under the joint reso-
lution of December 19, 1893, hereinbefore set out, Mahew can not be
held to have been required to do what would have been, in law, prior
at any rate to January 9, 1891, a vain thing. He made his filing on tbe
very day the decision first referred to in said joint resolution was oflB-
cially communicated to the local office, and that was sufficient.
The foregoing disposes of all material questions presented by the
appeal. The decision of your office is affirmed in accordance with the
views herein expressed. Johnston's filing will be canceled to the extent
of the conflict between the same and the filing of Mahew. Herewith
are returned the papers.
DECISIONS RELATING TO THE PUBLIC LANDS. 493
REPAYMENT— SECTION T, ACT OF MARCH 3, 1891.
Mary O. Lyman.
On application for repayment nnder an entry canceled for fhtnd, the applicant will
not be permitted to go back of the judgment of cancellation, and show that in
fact there was no fraud.
The provisions of section 7, act of March 3, 1891, do not in terms, nor by implication
have aoy application to the matter of repayment.
Secretary Bliss to the Commissioner of the General Land Office^ June 3j
(W. V. D.) 1897. (W. M. W.)
Mary O. Lyman's appeal from yonr office decision of March 7, 1896,
rejecting her application as alleged transferee of Maud Yaniel for
repayment of the purchase money paid by said Yaniel on her pre-emp-
tion cash entry for the SE. J of Sec. 22, T. 26 S., B. 25 W., Garden
City, Kansas, land district, has been considered.
Said application was filed in your office by Messrs, Gopp and Luckett,
resident attorneys for Lyman, and your office disposed of it by saying:
That said entry was canceled by office letter ''P" April 27, 1889, because the entry
was frandulently made. The law goveming the return of purchase money does not
apply to cases of this character.
The first and second specifications of error in the appeal take issue
with the statement in your office decision that said entry was canceled
because it was fiaudulently made.
The judgment canceling the entry was based upon a finding of fact
that said entry was fraudulently made; in this proceeding such findiug
and judgment must be regarded as conclusive upon all parties Qon-
cerned that the entry was fraudulently made. In other words, upon
an application for repayment under a canceled entry, when the judg-
ment of cancellation shows that the entry was canceled for fraud, the
party applying for repayment will not be permitted to go back of the
judgment of cancellation and show that there was no fraud. Such
judgment is conclusive as to the facts and the law. It follows that the
second alleged error presents an immaterial question.
The third and fourth specifications of error are as follows:
3. In not holding that as between appellant, a bona fide purchaser for value of the
land covered by said entry after issuauce of final certificate, and the United States,
the charge of fraud is barred by section 7 of the act of March 3, 1891, and that the
purchase money should be refunded to said purchaser or the entry reinstated.
4. In declining to recommend repayment.
No briefer argument has been filed in support of the errors assigned
in the appeal presenting either reasons or authority to sustain them.
It is not easy to perceive just what counsel for appellant mean by
the statement in the third specification of errors that 'Hhe charge of
fraud is barred by section 7 of the act of March 3, 1891,'' If counsel
mean to be understood by the use of this language as claiming that
494 DECISIONS RELATING TO THE PUBLIC LANDS.
■Mtioii 7 of the act ef Xaidi 3y 1801 (26 Stat^ 10d5)^cluiQged, aatended,
or in any manner affected the laws relatioiir to repajmeikl, then sack
contention or claim can have no force in reason or law. Said section
relates to the correction of clerical errors, committeil in the entry of
the pablic lands, and the conflrmatiqn, nnder certain conditions, of cer-
tain entries of the public land. It does not in terms nor by implieatioii
have any application to the matter of repayment.
Your office decit^ion api)ealed from is accordingly affirmed.
RELIJfQUISHMENT-IXSAXE BNTRYMAX— CONTJE5ST.
DYCHE V, Beleele.
A relinquiBhment execnted by the guardian of an insane eutrjrman, under the direc-
tion of a probate court, is nnauthorized by law and invalid.
A contest against the entry of an insane homesteader must fail if it appears that
the entryman had complied with the law up to the time when he became insane.
Secretary BlUs to tlie CommiMioner of the General Land Office^ June 3,
(W. V. D.) 1897. (C. W, P.)
Anthony Beleele on July 8, 1889, made homestead entry of the SW.
J of Sec. 29, T. 19 N., R. 3 W., Guthrie land district, Oklahoma.
On November 2, 1892, Edward W. Dyche filed affidavit of contest,
alleging abandonment, change of residence for more than six mouths
next prior to the date of affidavit, and that the land was not settled on
and cultivated as required by law.
On August 24, 1893, a hearing was had before the local officers, and,
on January 14, 1895, they found that Beleele '^ cultivated and improved
the land in good faith, as required by law, until his departure for Iowa
in April, 1891;" and also found that,
at the time he left his claim in April, 1891, he was mentally incapacitated from
attending hnsiness affairs on account of old age and brooding over his financial miii-
fortunes in Kansas, as shown by the testimony,
and recommended that the contest be dismissed. Dyche appealed to
your office.
During the pendency of said contest, on August 29, 1893, the pro-
bate court of Logan county, Oklahoma Territory, having found that
the said Anthony Beleele was incapable of taking care of himself, and
of managing his property, and otherwise mentally incompetent
appointed his daughter, Clara E. Beliel, guardian of the i)erson and
estate of the said Anthony Beleele.
Subsequently, letters of guardianship being issued to the said Clara
E. Beliel, on April 23, 1895, on the same day, the probate courts having
found that <^ it is to the best interest of said Anthony Beliel, for the
SW, J of Sec. 29, Tp. 19 N., R. 3 West, be canceled by relinquishment,
and that the proceeds from said homestead be converted into money ,^
DECISIONS RELATING TO THE PUBLIC LANDS. 495
authorized the guardian ^^ to relinquish to tbe Government of the United
States all of the right, title and interest of said Anthony Brtieliii and
to" the said land. And on tbe same day^ Olaxa £• Bdiel presented to
the local officers a relinquishment of the land, and, at the same time,
the said Dyche prefleDted an application to enter the same under the
homestead laws; tlie former was rejected by the local officers ^' because
the guardian is not authorized to relinquish the same and to authorize
its cancellation;'' aud the latter, ^' for conflict with homestead entry
3418, of Anthony Beliel covering said land." Clara E. Beliel and said
Dyche appealed to your office.
On June 19, 1805, the probate court removed the said Clara E. Beliel
from the guardianship? and appointed Peter Beliel guardian in her
stead ; and rescinded the order authorizing the said Clara E. Beliel to
relinquish the land in controversy.
Your office, without passing upon Dyche's appeal from the decision
of the local officers dismissing his contest, reversed the action of the
local officers in refusing to receive the relinquishment and cancel the
entry, and also their rejection of Dyche's application to enter said land.
Anthony Beleele by his guardian, Peter Beliel, has appealed to the
Department.
It is contended that your ^' decision is erroneous in not holding the
entry of Anthony Beliel intact and not dismissing the contest of the
contestant."
In your decision you say that you "find it unnecessary to pass on
the appeal of Dyche" from the action of the local officers <^in dismis-
sing his contest, but, it appearing the entryman had complied with the
law to the time when he became insane, it would seem that the said
eon test was properly dismissed."
I have read the testimony and fully concur with you in the opinion
that the contest was properly dismissed and think that you should
have affirmed the judgment of the local officers dismissing the contest.
Upon the question of the force aud effect of the relinquishment of
tbe claim by Clara E. Beliel, as guardian of the entryman, under the
authority of the probate court of Logan county, Oklahoma Territory,
I am clearly of opinion that said relinquishment can not be regarded
as valid and binding on the entryman. The probate court had no
authority to authorize the relinquishment.
The act of May 14, 1880 (21 Stat, 140), authorizes a pre-emption,
homestead, or timber culture claimant to relinquish his claim to the
government. The act of June 8, 1880 (Id. 166), which is the only legis-
lation by Congress on the subject of settlers who become insane, pro-
vides that the rights of a preemption or homestead claimant, who has
become insane, may be proved up, and his claim perfected by any per-
son duly authorized to act for him during his disability. But no
authority is given to sell or relinquish his claim.
I am therefore of opinion that the judgment of the local officers
496 DECISIONS RELATING TO THE PUBLIC LANDS,
rejecting the relinqaishment and Dycbe's application to enter the land,
its correct and shoald be affirmed.
It is unnecessary to consider the protest of Peter Beliel^ the gaardian
appointed by the x)robate court upon the removal of the said Clara £.
Beliel.
Upon a careful consideration of the whole record, I am satisfied that
the decision of your office is erroneous. I therefore reverse your det-i-
sion, and direct that Dyche^s contest be dismissed. Anthony Beleele*s
entry will remain intact.
Hbrshey v. Bickfobd et al.
Motion for review of departmental decision of December 23, 1896, 23
L. D., 522, denied by Secretary Bliss, June 3, 1897.
REPAYMENT— MORTGAGEE— assignee.
J. W. Thomas.
An application for repayment, made by a mortgagee of the land, who also holds an
alleged assignment of the right to repayment, does not present a case wherein
the status of the applicant, ns an assignee, mast be determined, if the dnpHcate
receipt is not surrendered, and all claims to the land properly relinquished.
Secretary Bliss to the Commissioner of the General Land Office^ June 5,
(W. V. D.) 1897. ' (W. M. W.)
On May 16, 1896, your office transmitted the papers in the applica-
tion of J. W. Thomas, Receiver of the American Savings Bank, of
Omaha, Nebraska, for repayment of the purchase money, fees and
commissions paid to the government by John L. Corey, under his pre-
emption cash entry. No. 6061, made on March 15, 1888, for the SW. ^
of Sec. 9, T. 1 S., R. 38 W., Oberlin, now Colby, Kansas, land district,
together with said Thomas's appeal from yoor office decision of April
1, 1806, rejecting his application for repayment.
The facts in the case are as follows:
Corey made pre-emption cash entry March 15, 1888, and four days
later executed to the American Loan and Trust Company a mortgage
upon the land entered, to secure the payment to that company of $55(),
borrowed by Corey from the company. At the same time, and as addi-
tional security, Corey executed and delivered to the trust company the
following instrument:
AUTHORITY TO SETTLE WITH THE UKITED STATES.
Whereas, We^ John L. Corey and Mary E. Corey, hasband and wife, of Benkelman
postoffice, Dundy county, Nebraska, have borrowed the sum of $550.00 of the Ameri-
can Loan and Trust Company and have exeooted to said company, to secure the
DECISIONS RELATING TO THE PUBLIC LANDS. 41)7
payment thereof, a mortgage upon the following described real estate, situated in
Cheyenne county, Kansas, namely: southwest quarter, section 9, township 1 south,
ranp^e 36 west of 6th principsil meridian.
Now, therefore, if we, or either of us, shall, at anytime hereafter, be entitled to
receive from the United States any money on accouut of said land, by reason of any
defect, illegality, or irregularity in our right or title to said land, or for any rea8ou
whatever, we do hereby appoint the president of the American Loan and Trust Coiu-
pany our agent, and hereby authorize him, iu onr l>ehalf, to receive said money from
the United States, and in our name receipt therefor; and we do hereby order and
direct that such money be paid to the said president of the said American Loan and
Trust Company for us, by the proper officers of United States: and when the said
president of the said xVmerican Loan and Trust Conipan}', as our a^ent, shall have
received said money, we authorize him to pay the same to the holder of said mortgage.
This authority is given, in consideration of the aforesaid loan, from the said Ameri-
cjin Loan and Trust Company to us and we do hereby make this power of attorney
irrevocable, until fall payment by us, of said loan has been made.
Witness our hands this 19th day of March, 1888.
John L. Corey.
Mary E. Corey.
In presence of—
Edward £. Gillbn.
E. M. Maixkttb.
Thereafter the American Savings Bank became the owner and holder
of the mortgage and of the instrumeut-hereinbefore set forth. Thomas
is the receiver of the bank. The American Loan and Trust Company
has become insolvent and is also in the hands of a receiver. The latter,
as the present executive officer of the trust company, relinquished any
interest which that company may have in the laud o>nd certified that
Thomas, as receiver of the bank, is the present holder of the instru-
ment hereinbefore set forth.
It was ascertained that Corey's entry was erroneously allowed and
could not be contirmed, and the same was canceled April 13, 1S95.
December 1, 1888, Corey and wife conveyed the land to David O.
Gilbert " subject to a mortgage of 8500.00." December 31, 1888, Gilbert
and wife conveyed the land to Adam W. Smith "subject to a mortgage
of $550.00 and taxes for 1S88," and July 20, 1891, Smith conveyed the
land to John Oliver "subject to a mortgage of 8550.00 and accrued
interest and taxes for 1891." The consideration named iu the first two
deeds is $1600.00 and in the third it is an exchange of other property.
In your office decision it is held that —
The only person qualified to.apply for a repayment is the one in whom the title to
the land is Tested at the date of cancellation of the entry, or the heirs of such party,
and that a mortgagee whose claim is a mere lien on the land is not an assignee and
as such entitled to repayment (11 L. D., 283; 14 L. D., 101 and 392).
In his appeal Thomas contends that —
The Hon. Commissioner erred in his decision herein in that he considered and held
that the said John W. Thomas, receiver, etc., requested a repayment to him by virtue
of the mortgage and as a mortgagee,
and in support thereof urges that the instrument hereinbefore set
forth and executed by Corey to the original mortgagee, as an addi-
10671— VOL 24 32
498 DECISIONS RELATING TO THE PUBLIC LANDS.
tional secarity, constituted an equitable assigumeut to the mortgagee
by Corey, of the latter's right to repayment in the event of the ean-
cellation of his entry.
Section 2 of the act of June 16, 1880 (21 Stat., 287), regulatiDcr
repayments by the Secretary in cases like this, provides: —
In all cases where homestead or timber cult are or desert-land entries or other
entries of the public lands have heretofore or shall hereafter be canceled for con-
Hict, or where from any cause, the entry has been erroneously allowed and canDot
be confirmed, the Secretary of the Interior shall cause to be repaid to the person
who made such entry, or to his heir» or assigns, the fees and commissions, amount
of purchase money, and excesses paid upon the same upon the surrender of the
duplicate receipt and the execution of a proper relinquishment of all claims to said
laud.
The "surrender of the duplicate receipt and the execution of a
proper relinquishment of all claims to said land'^ are thus made con-
ditions precedent to repayment. The duplicate receipt has not been
surrendered, and it is not shown to have been lost or destroyed. Tlie
applicant has executed and presented a relinquishment on behalf of
the bank, of its claim to the laud, but according to his own contention
the bank is at most only a mortgagee of the land and an assignee
of the right to repayment. Even if the instrument, or power of attor-
ney, relied upon by the applicant be regarded as an assignment of the
right to repayment, it did not in itself transfer to the applicant any
claim to the land. Subject to the mortgage, the claim to the land
passed to John Oliver. The mortgage was only an incumbrance whith
could not ripen into a claim to the land until after breach of condition
and foreclosure. The statute requires a relinquishment of "all claims
to said land." Here the greater claim is shown to exist in John
Oliver and yet no relinquishment by him is presented.
The conditions named in the statute when repayment can be made
"to the person who made such entry, or to his heirs or assigns."
have not been fulfilled, so it is not necessary to determine whetber
Thomas, as receiver of the bank, is an assignee within the meaning ot
the statute. He may be entitled to repayment as against Corey, the
eutryman, and he may be equally entitled to repayment as against
Oliver, a subsequent grantee, but under thesUitneno one is entitled to
repayment as against the government, until after surrender of the
duplicate receipt and relinquishment of all claims to the land.
Another matter which deserves mention is the fact that no showing
is made as to whether the mortgage indebtedness or any part thereof^
has been paid, or whether it still remains as a subsisting obligation.
For the reasons given, the decision appealed from is affirmed.
DECISIONS RELATING TO THE PUBLIC LANDS. 499
HOMESTEAD CONTEST- ADTEKSE SETTLEMENT CUIIMS.
TAYLOB ET AL. V. EWAET.
Priority of Bottlement mnst be determined by acts performed indicative of the set-
tler's intent, and not by priority of presence on the land, or declarations of
intention to settle thereon.
Searefary Bliss to the Commissioner of the General Land Office^ June 5,
(W. V. D.) 1897. (G. C. R.)
On September 28, 1893, John Bwart made homestead entry for the
NB. J of Sec. 20, T. 21, R. 1 E., Perry, Oklahoma.
Affidavits of contest were filed against said entry, the first by Ezekiel
W. Parker, on September 30, 1893, and the second by Edward R. Tay-
lor, October 4, 1893, each alleging prior settlement, etc.
Hearing was had, commencing May 3, 1894, and closing June 12, of
that year. The testimony was directed mainly to the issaes raised in
the contest affidavits and is quite voluminous.
The register and receiver, by their decision dated April 13, 1895,
recommended that both contests be dismissed. On appeal, your office
by decision of November 12, 1896, sustained the register and receiver
as to their findings and recommendation in respect to Taylor, but mod-
ified the decision in respect to Parker, holding that both be and Ewart
acted in good faith, that their respective settlements on the land were
simultaneously made, and that the land should be divided between
them, each taking the part embracing his imi)rovemeuts. From this
judgment both of the contestants and the entryman have appealed to
this Department.
The testimony clearly shows that both Ewart and Parker preceded
Taylor to the land, and that their first acts of settlement were followed
within a reasonable time by such evidences of good faith as to defeat
any efforts made by Taylor. It may also be added that Taylor's resi-
dence on the laud was not satisfactory, and the action of the local offi-
cers and your office in dismissing his contest is clearly right.
Parker testified that he entered the territory and reached the land
on the day of opening (Septemder 16, 1893), having ridden his horse
about nine miles. He had no watch, but one Durkee testified that he
saw him ride on the land and dismount, and that it was then 12:45 by
liis watch, which registered the correct time. On dismounting he stuck
a stake on the land, which he had carried with him, and on which was a
white flag, ten by twelve inches, with large letters printed thereon say-
ing: "This claim taken by B. W. Parker." This flag was placed about
thirty rods from the west line of the land and about midway from north
to south: after putting up this flag, he went west about one hundred
yards, tore a handkerchief in two and hung it on a buck bush, then
went over near northeast corner and put up another stake and a flag,
on which was printed: "This claim taken by E. W. Parker;" then he
500 DECISIONS RELATING TO THE PUBLIC LANDS.
wrote his name on a cotton wood tree near by; after which he went into
camp, and dug a small hole with a stick; he slept on the land that
night (16th), and the next day he, with others, surveyed the land, and
placed small stakes at three of the corners; he then went to the land
office to get his "numbers;" obtained supplies, and returned to tlie
land on September 21; he then did some plowing and started a well;
he lived in a camp on the northwest part of the claim until October i'>,
when he went to Texas — his former home after his family (wife and
two children). In the meantime he built a sod house, completing it
the day before he left for Texas. He was taken sick on his arrival at
his former home, but as soon as he was able he started for the land,
getting there December 16, 1893; he found that he could not live in his
sod house, but used it as a stable, and built a dug-out, twenty-one by
twelve feet, "rocked it up inside, put a board roof and tarred paper
roof on it," and moved in the liSth of January, 1894. From the time of
his arrival from Texas (December 10) he worked on the place. His resi-
dence has been continuous; his improvements consist of a dwelling
house, ten acres plowed, about six acres planted to corn, a vegetable
garden, well, fruit trees, etc.
He is a poor man, and the evidence, as a whole, shows that he has
done all that could be reasonably expected of him, and that he is
evidently in good faith in his efforts to comply with the requirements
of the law and in making the land his home.
Ewart, the defendant entrymau, was twenty-four years old at date
of hearing. He testified that he settled on the land on the afternoon
of the day of opening (September 16). He, too, rode on horseback and
traveled about the distance that Parker did; he entered the tract about
sixty rods west of the southeast corner and traveled a little west of
north; before stopping he traveled on the tract about eighty rods;
swears he could see all over it, and saw no one there and no signs of
any improvement; he remained at the point where he first dismounted
"about two minutes,'' and then went to the northeast part of the claim
and cut a stake to put a fiag on ; he tied a red handkerchief to the stake,
and stuck it about twenty rods west of east line and about half way
from north to south. On returning from the place where he cut the stake,
he met Parker, who told him not to stick the stake, as he had taken tlie
claim; he testified that he told Parker, in reply, that he had been there
some time and was going "to stay with him ;" that while this cou versa*
tion was going on he stuck his stake; that after he did this, Parker
showed him where his (Parker's) stake and fiag were placed, but he
was positive that this stake was not there when he rode onto the claim.
Mr. Parker, in referring to this conversation, testifies that he told
Ewart he had already staked, and that Ewart asked him if he knew
where the lines were; that his reply was, that he did not; Ewart then
said: "I will stake for the lines may be run between us;'' that he
then showed Ewart his flag, and Ewart went away.
DECISIONS RELATING TO THE PUBLIC LANDS. 501
Ewart appears to Lave made liis Lome on tLe land, and vas only
away tLerefrom for apparently necessary purposes; Le Las built a
Louse, ten by twelve feet, a barn and Las a well and six or seven acres
of breaking.
Like many otLer cases of tLis cLaracter, neitLer one appears to Lave
seen tLe otLer wLen Le first appeared on tLe land, and eacL is positive
of Laving made tLe first settlement. But Ewart admits tLat Parker's
flag was placed on tLe tract before Le placed Lis own; of tLis fact,
therefore, tLere can be no question. Your office, Lowever, accepts
E wart's statement tliat Le was upon tLe land some minutes before he
cut his stake; and that Le Lad declared Lis intention to appropriate it
before he cut tLe stake; tLat since it does not appear tLat Parker
stuck Lis stake before Ewart expressed Lis intention of appropriating
the land, you were "inclined" to Lold tLeir settlements simultaneous,
and accordingly Leld that tLe land sLould be divided between tliem.
It will not do to Lold tLat a settlement may be made or initiated by
a mere declaration of intention to settle; something must be done —
some act in execution of that intention must be performed.
Ewart knew tLe conditions and circumstances attending tLe early
settlement of OklaLoma; Le appears to have run with all possible
speed to reach the lands; his own testimony is to the effect that Le Lad
been on tLe land about fifteen minutes before Le saw Parker, and yet
Le Lad done nothing — only to stand by Lis Lorse or walk around for
some time tLereafter; wLy Lis Laste, if not to perform some act in
connection witL tLe land, so tLat subsequent comers tLereon might
observe it? He can not claim priority by simply riding or walking
over the land; otLers did that in hastening to near by tracts; nor can
he claim priority by a simple verbal declaration, unaccompanied by
specific acts, observable by others.
In Penwell v. Christian (23 L. D., 10), it was held that the sole act
of the contestant in setting a stake, with a handkerchief attached
tLereto, on the land, prior to any act being done by the entryman, was
sufficient to give him tLe better right to the land, when such act was
duly followed by other acts evincing an intention to make the land his
Lome.
The same principle is laid down in Hurt v. Giffin, 17 L. D., 162.
The testimony shows that Parker performed tLe first act of settle-
ment by setting tLe stake, above described. Having followed up that
initial act by improvements and continuous residence, and having
shown by his work and acts that it was his bona fide intention to make
tLe land his home, he has, by virtue of his initial act, tLe superior
right to the land. SLould Le present Lis application to make entry of
tLe land witLin tLirty days from notice of tLis decision, Ewart's entry
will be canceled and Lis entry will be allowed.
The decision appealed from is modified accordingly.
602 DECISIONS RELATING TO THE PUBUC LANDS.
SOLDIEBS' ADDmOXAL HOMESTEAD-CBBTEFICATE OF BIGHT.
Instbuotions.
There is no aathority of law for the inBertlon of a condition in a soldier's additional
homestead certificate of right, requiring settlement and residence on the part of
the soldier, where the original entry was abandoned ; and it therefore follows
that in recertifying the additional right in the name of a transferee, onder the
act of Angnst 18, 1894, such a condition, contained in the original certifieati*,
should be omitted.
Secretary Bliss to the Commissioner of the General Land Office^ June 3,
(W. V. D.) 1897. (F. W. C.)
I have considered the matter presented by yoar office letter '^G" of
May 18, 1897, in which you reqnest instractions as to whether, under
the law, there is any objection to the re-certification of a certificate of
additional right under section 2306 of the Revised Statutes, in the name
of the transferee, without the condition of residence and cnltivatiouon
the land to be entered, where the original en try man failed to i)erfect
title to his entry.
The facts relative to the application under consideration, as takeu
from your office letter, are as follows:
Under date of April 29, 1897, Messrs. Thayer and Rankin of this city inclosed a cer-
tiiicate of right issued by this office May 5,1881, in the name of Abram ^L CasUn-l,
certifying his right to make additional entry nnder section 2306 R. S., for 120 acres,
and made application for the re-certi float ion thereof, in the name of John H. Howell,
nnder the act of August 18, 1894 (28 Stat., 397).
The certificate in question shows on its face that it was based on ** original H. £.
Ko.2813, made at Ironton, Missouri, March 1, 1870, for 40 acres, said entry having
been canceled September 19, 1872, by reason of relinquishment, '' and that Cast«el
''is entitled to make additional homestead entry of not exceeding 120 acres, as pre-
scribed in Sec. 2306, Revised Statutes of the United States, subject to the condition!}
of the homestead laws which require that Abram M. Casteel shall become an actual
settler on any tract which he may so enter; that he shall reside upon improve and
cultivate tbe same as his homestead for the period required by Sec. 2291, as amentleil
by Sec. 2305, of the Revised Statutes of the United States, and that in default of hi:»
doing so his entry shall fail and the land revert to the public domain.**
Proof of the purchase of said certificate by Mr. Howell for a valuable considera-
tion and in good faith has been filed in this office, but there is a doubt as to whether
the act of August 18, 1891, and the circular of October 16, 1894 (19 L. D., 302), issued
thereunder, copy herewith, contemplate the re-certiti cation of certificates which as
in the case at bar bear on their face as issued the condition of future residence and
cultivation of the laud to be fulfilled by the original claimant as a pre- requisite to
perfecting title thereunder, neither the act nor circular specifically providing for
such cases.
Section 2306 of the Revised Statutes provides as follows:
Every person entitled, under the provisions of section twenty-three hundred ami
four, to enter a homestead who may have heretofore entered, nnder the homestead
laws, a quantity of land less than one hundred and sixty acres, shall be permitted
to eater so much land as, when added to the quantity previously entered, shall not
exceed one hundred and sixty aorea.
DECISIONS RELATING TO THE PUBLIC LANDS. 503
The question as to the right to an additional entry under this section,
where the original entry was abnndoned or relinquished, appears to
have been first considered by this Department on May 8, 1876 (3 Copp's
Land Owner, page 21), in which, although there was no actual case
pending before the Department, the opinion was expressed that where
a soldier or sailor had made a homestead entry of less than one hun-
dred and sixty acres, prior to the passage of thc} act of 1872, which was
afterwards incorporated into the section above quoted, his right to an
additional entry under section 2306 is not dependent on his continued
residence and improvement of the land covered by his original entry.
In said paper it was stated that —
The abandonment of an original homestead will not disqualify the soldier from
making an additional one; but to perfect title to the additional entry he most com-
ply with the law by actual residence thereon and cultivation thereof for the full
required period.
This expression of opinion seems to have been made the basis for the
issue of certificates of additional right by your office, in cases where
the original entry had not been completed, containing a condition sim-
ilar to that before quoted from the certificate issued to Abram M. Gas-
teel, which is made the subject of the request under consideration.
In the case of Webster v. Luther (163 U. S., 331), although the ques-
tion before the court was only as to whether the additional right granted
by section 2306 was assignable, nevertheless, in considering the scope
of said section, the court holds, on page 339 of the opinion as follows :
If, then, Congress did not burden the right to additional lands with the condition
that they should be contiguous to those originally entered, it would seem necessarily
to follow that the grant of additional lands was without restriction;
and later on quoted with approval the opinion of the supreme court
of Minnesota in the case under consideration, wherein said court, speak-
ing by Chief Justice Gilfillan, said:
There being nothing in the terms of the section requiring the things specified in
the act of 1862, to wit, the making of proofs, affidavits, etc., is there anything in
the policy of the government in respect to the subject-matters of the various acts
referred to which raises the presumption that Congress intended any of the require-
ments of the act of 1862 to apply to the ''additional right f" or intended the feature
of alienabihty impressed on the homestead entered uuder the act of 1862, or the
first section of the act of 1872, should attach to the ''additional right f' The pur-
pose of Congress in giving the right to enter and acquire a homestead under the act
of 1862^ and the first section of the act of 1872, was not merely to confer a benefac-
tion on the citizen, or discharged soldier or sailor. There was also the purpose to
secure, so far as possible, a bona fide settler on the public lands, to promote the peo-
piiug and cultivation of those lands. It was to prevent the evasion of this result
that the person applying to enter a homestead is required to make affidavit that the
application is made for his or her exclusive use and benefit, for the purpose of actual
settlement and cultivation, and not, either direotly or indirectly, for the use or
benefit of any other persou, and on applying for the patent to make proof of resi-
dence on, and cultivation of, the land for five years, and an affidavit that no part of
the land has been alienated; and it is provided that the land shall not be taken for
debts, and that upon any change of residence or abandonment of the land for more
504 DECISIONS RELATING TO THE PUBLIC LANDS.
than six months the land shnll revert. The end in view was tb<* peopling of vacant
pnblic lands with settlers owning and cultivating their own homes. To seenre set-
tlers or require residence or cultivation was no part of the end in view in giving
the additional right under the section as amended in 1872. No residence on or culti-
vation of the land as a conditiou of securing the additi(»nal right was intended. It
was a mere gratuity. There was no other purpose but to give it as a sort of com-
pensation for the person's failure to get tUe full quota of one hundred and sixty
acres by his first homestead entry.
Ill the case of Owen McGrann (5 L. D,, 10) this Department sustained
yonr oflfice in holding that where the original entry was canceled for
failure to make proof, residence and caltivation would be required in
case of entry under an additional certificate. In said opinion, however,
the matter does not appear to have received an extended consideration,
but rather to have been ruled upon the opinion expressed by this
Department in the case of John W. Hays (3 Oopp's Land Owner, 21),
before referred to, in which no actual case was pending before the
Department and in which no question was raised as to the requirement
of residence and cultivation upon the additional entry.
It is plain that there is nothing in the languHge of section 2306 requir-
ing residence and cultivation of the land entered under the additional
right, whether the original entry was perfected or abandoned; and in
view of the opinion expressed by the supreme court of Minnesota, and
quoted with approval of the supreme court of the United States, before
referred to, I am of opinion that there is no warrant for the, insertion
of the condition, in the matt-er of cultivation and residence, in any
certificates of additional right issued under said section.
You are therefore authorized, in the re-certification of the additional
right in the name of the transferee under the act of August 18, 1894
(supra), to eliminate from the certificate the condition incorporated in
the former certificate issued to Abram M. Gasteel requiring him to
become an actual settler upon and to reside upon and improve and
cultivate the land entered under the additional right granted by said
section 2306.
timber cutting-appmcation for permit.
Riley G. Clark.
ApplicationR for permission to cnt timber should not embrace abov^e one qnart-er sec-
tion; and no applicant wiU be accorded a second permit nnleas it satisfactorily
appears tbat a most urgent necessity exists therefor.
Secretary Bliss to the Commissioner of the General Land Office^ June 5,
1897. (A. M.)
With your letter of the 15th ultimo you transmitted the application
of Kiley G. Clark of Pauguitch, Utah, for a permit to cut timber on a
tract of non-mineral public land which, when surveyed, will be two and
a quarter sections as described.
DECISIONS RELATING TO THE PUBLIC LANDS. 505
In connection with this application, as regards the area embraced
therein, you have adverted to the decision of the Dei)artment on April
8, 1893, 16 L. D., 363, in approving a permit to the Big Blackfoot Mill-
ing Company to cut timber on four sections of land, and for reasons
stated have expressed the opinion that this decision was not intended
to fix a rule as to the area for which permits may be issued.
You have also expressed your views at length as to the purpose of
the act of March 3, 1891, 26 Stat, 1093, by virtue of which permits
are issued, and have suggested that such permits should be limited to
one hundred and sixty acres for each permit and that it shall not be
allowable for any applicant to be a beneficiary of the act a second time,
except where special circumstances render it necessary.
The decision in the Big Blackfoot case, above mentioned, did not
establish a rule of action but was based on the circumstances sur-
rounding the individual case.
Your suggestion of the limitation of the area in timber permits has
for its object the restriction of the free privilege granted by the above
act to the actual needs of the communities directly interested and to
guard against the liability of the use of the privilege for speculative
purposes.
To this end I hereby direct that any permit that may be hereafter
submitted for departmental action shall not embrace above one quarter
section and that no applicant shall be accorded a second permit unless
it satisfactorily api^ears that a most urgent necessity exists therefor.
The papers are returned herein and the application of Clark should
be disposed of in accordance with the foregoing.
ACCOTTNTS-UNEAKNED TEES ANI> UNOFFTCXAI* MOKETS.
ClECULAB.
Department of the Interior,
General Land Office^ Wa^hingtany D. 0.,
Begisters and Eeceivers,
United States Land Office.
Gentlemen: Referring to departmental circular of December 26,
1896, 23 L. D., 673, requiring receivers to render a regular quarterly
disbursing account for moneys designated as "Unearned fees and
unoificial moneys," your particular attention is directed to the third
paragraph thereof, which provides that for amounts earned it is suffi-
cient to make proper reference in the quarterly account to each item
earned, but for amounts returned or paid to imblishers receipts must
be furnished from persons to whom moneys are paid or returned.
You are further advised that the Treasury Department will not
credit disbursing agents with repayments or other disbursements in
50G DECISIONS RELATING TO THE PUBLIC LANDS.
sacb account on Touchers less complete than are required for other
disbursements made by them.
In order to secure uniformity and prompt adjustment of accounts
the following requirements should be observed in the preparation of
vouchers, viz :
1. Use voucher from 4-641a.
2. Fill blanks with ink.
3. Voucher must bear name of receiver as payor.
4. It must show exact date of payment or return.
5. It must show specifically on what account payment is made.
6. It must bear the signature of the payee in his own handwriting,
or that of his authorized agent.
7. When repayment is not made direct to the depositor himself^ the
authority of the agent or attorney who signs the receipt to receive and
receipt for same must accompany the voucher and be verified before
some officer authorized to take acknowledgements, or before the register
or the receiver. If before an officer other than a register or receiver
the Feal of such officer must be affixed, or his authority attested by an
officer of a court of record having a seal.
8. If payee cannot sign his name his mark must be witnessed by a
third person.
9. The payee's post-office must appear in connection with his sig-
nature.
10. Voucher for publication of final proof notice must show the
name of the paper in which publication was made and be signed by
the publisher or business manager of the same, and a copy of the
printed notice must be attached to the receipt.
11. Vouchers that show alteration will not be accepted.
A careful observance of the foregoing rules and a strict compliance
with departmental instructions of December 26, 1896, 23 L. D., 573,
relative to quarterly accounts for "Unearned fees and unofficial mon-
eys," and of May 14, 1895, id., 572, relative to monthly detailed state-
ments for the same will greatly facilitate the settlement of such accounts
and relieve both this office and receivers of much unnecessary annoy-
ance and correspondence.
Quarterly accounts of unearned fees and unofficial moneys will be
rendered on form 4-103 a.
Very respectfully, . BiNGEB Hermann,
Commisaioner.
Approved, June 5, 1897.
G. K Bliss, Secretary.
DECISIONS RELATING TO THE PUBLIC LANDS. 507
SCHOOL INDEMNITY SELECTION— MINING CLAIM— PLACEB LOCATION.
QuiGLEY V. State op California.
A discovery of miDeral on each twenty acres of a placer location serves to except the
whole location from school indemnity selection.
If the hurden of proof as to the character of land is improperly placed, and accepted
as placed without objection, the party so relieved from said bnrden is not in a
position to complain of such action on appeal, in the absence of an attempt in
the appellate tribunal to shift the bnrden, and apply the changed standard to
the record made on the hearing in the local office.
Secretary Bliss to the Commissioner of the General Land Office^ June
(W. V. D.) 3j 1897. (0. J. G.)
This case involves title to the SE. i of SB. J of Sec. 29, T. 22 ]^., E.
9 E., Marysville land district, California.
On Jane 16, 1894, the daly authorized agent of the State of California
filed an application to select the above described tract as indemnity
for deficit of school lands in Sec. 36, T. 9 S., E. 30 E., which application
was forwarded to your office.
On Angnst 17, 1894, A. J, Qutgley filed his duly corroborated pro-
test against the allowance of said application, alleging that the land in
controversy is valuable for the mineral it contains; that the mineral
claimant has been personally acquainted with and has resided on the
land since October 13, 1863; and that he relocated his placer claim
thereon December 11, 1891, in order to oouform to legal subdivisions.
By letter of March 6, 1895, your office ordered a hearing upon the
mineral claimant's protest.
Upon the evidence submitted at the hearing the local office rendered
opinion finding that the protestant had proven his allegations. It was
stated in said opinion, however, that a small part of the laud in ques-
tion "which contains perhaps nearly five acres may be of greater
value for agricultural purposes than tor. the mineral it contains."
The contestee appealed from the above decision, and on February 5,
1896, your office also found in favor of the mineral claimant; the con-
testee's application to select was accordingly rejected.
Without repeating the evidence here, I am of the opinion, after a
careful examination of the record, that said land taken as a whole, is
shown to be more valuable for the mineral it contains than for agricul-
tural purposes. The appeal is really but a renewal of the application
made to your office by the State for a segregation survey, based upon
the finding of the local office that the land in controversy embraces
about five acres which may be of greater value for agricultural pur-
poses than for the mineral it contains.
The land in controversy, as a whole, having been satisfactorily shown
to be more valuable for the mineral it contains than for agricultural
purposes, there would seem to be no authority for a segregation survey,
as suggested by appellant, of a part of said land for the purpose of
/)08 DECISIONS RELATING TO THE PUBLIC LANDS.
allowing the State to make a school indemnity selection thereof. In
the case of Ferrell et al. v, Hoge et aL (18 L. D., 81), it was held that
there must be a discovery of mineral on each twenty acres. Con-
versely, if there has been a discovery of mineral on each twenty acres
in a placer location such discovery would serve to except tlie whole
location from selection.
In the letter of March 6, 1895, ordering a hearing, your office placed
the burden of proof upon the mineral claimant, using the following
language in so doing: — "The burden of proof being upon the mineral
claimant, the land having been returned as non-mineral and included
in a selection." The burden of proof thus placed was accepted by the
mineral claimant and the State acquiesced therein. The local office
held that the mineral claimant successfully sustained this burden of
proof, and on appeal your office was of the same opinion. In that
appeal, no question respecting the burden of proof was raised by either
party, but in your office decision, which is now under review, a change
of opinion was expressed, and it was held that the burden of proof
rested upon the contestee, the State.
Your office having by express direction placed the burden of proof
upon the mineral claimant, the local office was bound by that direction
and was not authorized to change or ignore it. If that direction was
erroneous the error was not conmiitted in the local office.
The hearing was ordered at the request of the mineral claimant and
he was fully advised of the action of your office in placing the burden
of proof niK)n him. If, for any reason, he believed this was erroneous,
he should have applied to your office for a modification of its order in
this respect. No such application was made «nd, as before stated, be
accepted the burden of proof and the hearing was conducted accord-
ingly. If the placing of the burden upon the mineral claimant was
erroneous, the practical eflPect thereof at the hearing was to improi>erly
relieve the State of a burden wliich it should have borne and to
unjustly place the same upon the mineral claimant. After the burdens
of the latter had been thus increased and had been successfully borne
by him, the State wns not in a position to complain in the absence of
an attempt in the appellate tribunal to change the burden and apply
the changed standard to the record made on the hearing in the local
office.
In the appeal to the Department the State, referring to the changed
holding of your office respecting the burden of proof, calls attention to
the original direction fixing the burden upon the mineral claimant, and
then says: —
It is not fair to tbe agricultural claimant, after a trial, to say the bnrden of proof
vas npon him; we claim this a grievous error, and such a one, if the last holding is
correct, as to entitle him to a re-trial before the local office.
Where on appeal the accuracy of the finding below is dependent
upon the view then entertained respecting the placing of the burden of
proof, a question may arise whether any changed ruling on that subject
DECISIONS RELATING TO THE PUBLIC LANDS. 509
should be applied to the evidence taken, or \?hether a new heai-iug
shoald be had with the harden of proof properly placed. In this case,
however, weighing and measuring the evidence with the burden of
proof adjusted as it was at the time of the hearing, I am satisfied that
the mineral claimant has established his contention by a clear prepon-
derance of the evidence. What was said in the decision appealed from
respecting the burden of proof was not called for, but even if it were
erroneous, it was not prejudicial because it did not cause, or contribute
to, the judgment rendered; the result would have been the same if the
burden of proof bad not been considered or mentioned.
Your office decision is hereby affirmed.
Smith et al. v. Tayloe.
Motion for a new trial, on the ground of newly discovered evidence,
denied by Secretary Bliss, June 7, 1897. See 23 L. D., 440, and 24
L. D., 64.
INDIAX LANDS-ALLOTMENT-SWINOMISH RESERVATION.
Opinion.
»
Allotments on the Swinomish Indian reservation may be made prior to the estab-
lishment of actual residence by the allottees, it appearing that the lands
selected are partly covered by tidal overflow, and that the portion not so
covered is cultivated by said allottees, and further, that when allotment is
made the Indians will be enabled to protect their lands from said overflow and
thus secure permanent homes.
AsHstant Attorney- General Van Devanter to the Secretary of the
Interior. (W. C. P.)
In response to your request for an opinion as to whether there is
authority of law to make certain allotments on the Swinomish reser-
vation in Washington, a list of which was submitted by the Commis-
sioner of Indian Affairs with his letter of March 13, 1897, with the
recommendation that it be laid before the President for his approval, I
would respectfully submit the following. .
This reservation was established by the treaty of January 22, 1855
(12 Stat., 927) between the United States and the Dwamish and other
tribes of Indians in Washington Territory. The seventh article of
that treaty, after providing that the President may remove said
Indians from the several reservations named in the treaty, when their
interest may require such action, reads as follows:
And, he may further at his discretion cause the whole or any portion of the lands
hereby reserved, or of such other land as may be selected in lien thereof, to be sur-
veyed into lots, and assign the same to such individuals oi families as are willing to
avail themselves of the privilege, and will locate upon the same as a permanent home
on the same terms and subject to the same regulations as are provided in the sixth
article of the treaty with the Omahas, so far as the same may be applicable.
510 DECISIONS RELATING TO THE PUBLIC LANDS.
Said treaty with the Omabas prescribes the quantity of land to be
giveD each allottee, that the Preaident shall make sach roles and regu-
lations as will insure to the family in case of the death of the head thereof
the possession of the land, the manner of issuing patent, and provides
for cancellation of the allotment, if the allottee shall at any time neglect
or refuse to occupy and till a portion of the lands so allotted.
The list in question was submitted by the agent in charge of said
reservation, with a certificate in the usual form to the effect that loca-
tion had been made upon the lands so assigned, and that the parties
were entitled to patent. The matter was submitted by the Commis-
sioner of Indian Affairs without reference to any irregularity in con-
nection therewith. Upon face of the allotment list and the letter of
the Commissioner of Indian Aft'airs nothing appears to suggest that
these allotments should not be approved.
The letter of the agent to the Commissioner of Indian Affairs trans-
mitting this schedule of allotments, a copy of which is with the papers,
presents the matter in a somewhat different phase. In that letter he
said :
•
I have certified " that location has been made upon the lands so assigned " — ^ihis
is the form which is required, but as a matter of fact these Indians have not made
location on these lands, except to look after them and cultivate the portions which
are not covered by the tide overflow ; they have not made them their homes, because
they could not possibly live there until the lands were protected by dikes.
For the purpose of enabling these Indians to lease their lands and thereby get
dikes constructed, I hereby submit their applications fur allotments.
These Indians have occupied the lands assigned to them to the extent
at least of cultivating portions thereof, and so far as information is
given they desire to make homes upon the lands, and have asked that
these allotments be made as a means to that end. The requirements
of the law have been substantially complied with, and the President
has in my opinion authority to make the allotments. It would seem
unfair to the Indians to require them to improve the land to the extent
evidently required in these cases to make permanent homes thereon
without this assurance that they will eventually be given the lands
thus improved. If any of them shall hereafter abandon the lands
thus allotted, the President has ample means to prevent such aUottee
from reaping any advantage from his allotment, because the treaty
with the Omahas, supraj provides as follows :
And if any such person or family shaU at any time neglect or refuse to occupy and
till a portion of the lands assigned and on which they have located, or shall move
from place to place, the President may, if the patent shall have been issued, cancel
the assignment.
This same provision attaches to the assignments in question, and is
sufScient to prevent the consummation of any attempt to secure the
benefits of this treaty, without compliance with its requirements.
Approved, June 7, 1897,
C. N. Bliss, Secretary.
DECISIONS RELATING TO THE PUBLIC LANDS. 511
INDIAN LANDS-AXLOTMENT- ALIENATION.
Opinion.
The act of Angnst 15, 1894, modifying, as to the citizen Pottawatomie and Absentee
Shawnee Indians, the inhibition against alienation contained in the general allot-
ment act, does not anthorize a sale of allotted lands held by a minor heir,
Assistant Attorney- General Van DeVanter to the Secretary of the
Interior. (W. 0. P.)
I am in receipt, by reference of Assistant Secretary Eeynolds '^with
request for an opinion on the matters herein presented" of a letter from
the Commissioner of Indian Affairs, dated March 22, 1897, asking for
a decision as to whether inherited lands of citizen Pottawatomie Indians
or of Absentee Shawnee Indians, which were allotted to them under
the act of 1887, may not be sold in accordance with the provisions of
said act of August 15, 1894, by guardian duly authorized to sell under
proper proceedings of the courts of Oklahoma Territory before the
heir arrives at the age of twenty-one years.
The act of February 8, 1887 (24 Stat, 388) under which these allot-
ments were made provides that patents shall issue in the name of the
allottees, which patents
shall be of the legal effect, and declare that the United States does and will hold
thejand thus allotted for the period of twenty-five years, intrust for the sole use and
benefit of the Indian to whom such allotment shall have been made, or in case of his
decease, of his heirs according to the laws of the State or Territory where such
land is located, and that at the expiration of said period the Uuited States will con-
vey the same by patent to said Indian or his heirs as aforesaid, in fee, discharged of
said trust and free of all charge or incumbrance whatsoever.
It is also further provided as follows :
And if any conveyance shall be made of the lands set apart and allotted as herein
provided, or any contract made touching the same, before the expiration of the time
above mentioned, such conveyance or contract shall be absolutely null and void.
The inhibition against alienation was modified as to the Citizen Pot-
tawatomie and Absentee Shawnee Indians by a provision incorporated
in the act of August 15, 1894 (28 Stat, 286-295), which reads as follows:
Provided, That any member of the Citizen Band of Pottawatomie Indians and of
the Absentee Shawnee Indians of Oklahoma, to whom a trust patent has been issued
under the provisions of the act approved February eighth, eighteen hundred and
eighty-seven (Twenty-fourth Statutes, three hundred and eighty- eight), and being
over twenty-one years of age, may sell and convey any portion of the land covered
by such patent in excess of eighty acres, the deed of conveyance to be subject to
approval by the Secretary of the Interior under such rules and regulations as he
may prescribe, and that any Citizen Pottawatomie not residing upon his allotment,
but being a legal resident of another State or Territory, may in like manner sell
and convey all the land covered by said patent, and that upon approval of such
deed by the Secretary of the Interior the title to the land thereby conveyed shall
vest in the grantee therein named.
The act of 1887 contained a general and absolute prohibition against
alienation for a period of twenty-five years. The prohibition extended
512 DECISIONS RELATING TO THE PUBLIC LANDS.
to every conveyance by whomsoever made, as is shown by the words
^^aud if any conveyance shall be made . . • before the expiration
of the time above mentioned, such conveyance • • . shall be abso-
lutely null and void." This language includes not alone the original
allottee, but also his heirs. The act of 1894 creates an exception to
this general prohibition, in favor of the persons described in the later
act. Statutes of this character are limited in their operation to persons
coming within the class therein described. The general law continues
with all its original force, and applies to and includes all who are not
named in the excepting statute. Where the language of the latter is
is clear, it is not to be enlarged by the addition thereto of persons who
might, in the opinion of the executive branch of the government, be as
much entitled to the beneQts of such exception as are persons coming
within the letter thereof.
The act of 1894 not only does not include a minor who holds laud by
inheritance, but does expressly limit itself to original allottees ^^ being
over twenty -one years of age" and by necessary implication, excludes
all who have not arrived at the age of twenty-one years. Every reason
which would exclude a minor allottee from the benefit of the ex'^.epting
statute would apply equally to a minor heir.
Under the rules of construction applicable to statutes of this char-
acter, it seems clear that it was not the intention of Congress to
authorize the sale of lands by or for a minor Indian owner during the
prohibited period. A minor holding by inheritance is within the pro-
hibition contained in the original act and is not within the exception
nmde in the act of 1894.
Approved, June 8, 1897,
C. N. Bliss, Secretary.
MIXING CXAIM-PATENT-ERRONEOTJS SUIIVEY.
Eureka and Excelsior Consolidated Gold Mining Co.
The Land Department has no jurisdiction to correct an alleged erroueons sarvey ol
a patented placer claim, while the patent is outstanding, so as to include land
not applied for or surveyed.
Secretary Bliss to the Commissioner of the General Land Office^ April 39 j
1897. (P. J. C.)
It appears that patents were issued for tLe Willamette placer, entry
No. 75, and for the Webb Foot placer, entry No. 77, La Grande, Ore-
gon, land district, in 1892. In 1895 it was represented to your office by
the United States surveyor-general and Jonathan Bourne that the
surveys of the two placer claims as patented were erroneous^ and ask-
ing that they be corrected.
Your office, by letter of February 15, 1896, decided that while the
DECISIONS RELATING TO THE PUBLIC LANDS. 513
patents were oiitstandiug you had not jurisdiction to act in the prem-
ises, but suggested two methods by which the owners might proceed
to get the land that they claimed should have been included in the
patents. One of these was to surrender the patents and make appli-
cation de novoy the other to retain the patents issued and apply for the
land omitted. A motion for review of this decision was denied May
26, 1896, whereupon the petitioner prosecutes this appeal.
It seems to me that the Department is powerless to grant any relief
in the premises, except as suggested by your office. The land that was
entered was identical with that surveyed, for which application was
made and notice given. There is no method by which the patent can
be corrected under such circumstances so as to include land not applied
for or surveyed.
The office decision is therefore affirmed.
ini>iaj^ i4a1«^i>s— appraiaal.— bona fide ptjbchaser.
Emka L. Pape.
An appraisal of tmalloted Pottawatomie lauds, as provided for in the treaty of
November 15, 1861, is not caUed for, if it appears that there is a bona fide claimant
therefor who is within the protective clanse of the subsequent treaty of Febru-
ary 27, 1^67.
Secretary Bliss to the Commissioner of the General Land Office^ June 7,
( W. V. D.) 1897. (E. M. R.)
The land involved is lot 8 of Sec. 29, and lot 8 of Sec. 30, T. 11 S.,
E. 15 E., Topeka land district, Kansas.
On March 30, 1897, your office addressed a communication to the
Department requesting that authority be given
to direct the register of the land office at Topeka, Kansas, within a few miles of
which city the land lies, to make an appraisal of the land and to sell the same.
On April 1, 1897, this letter was referred to the Commissioner of
Indian Affairs (the land being within the old Pottawatomie reserva-
tion), who, on April 20th following, replied, recommending that the
authority asked for be granted.
Subsequently, on April 28, 1897, your office called the attention of
the Department to the communication from the attorney of Emma L.
Pape, dated April 20, 1897, asking that patent issue to the said Pape
for the above described lots, which together form an island in the
Ka.nftRR river, and offering, in the event her alleged original grantor
the Atchison, Topeka and Santa Fe Bailroad Company had not paid
for the land as provided by law, to do so.
Previous, however, to the proceedings just related, it appears that
prior to July 3, 1895 (21 L. D., 290), one Level and one Belk made
applications to this Department for the survey of two islands in the
Kansas river, as unsurveyed public land. The application of Level
10671— VOL 24 33
614 DECISIONS RELATING TO THE PUBLIC LANDS.
referred to the island now under consideration. On the last mentioned
date an opinion was given by Assistant Attorney-General Hall, and
approved by Secretary Smith, denying the application of Belk for
survey of the island, prayed for by him, and granting the petition of
Level.
The survey was made and plat thereof was approved in September,
1896, and on October 14, 1896, Frank Level, at whose instance the land
was surveyed, was allowed to make homestead entry, which was can-
celed by your office on March 30, 1897, as being erroneously allowed.
In the opinion of the Assistant Attorney-General it was held that as
the island existed at the date of the original survey of the lands within
the Pottawatomie reservation, as now, in a meandered stream, it did
not inure to the riparian owners, and, therefore, could be lawfuUy
surveyed.
By the fifth article of the treaty of November 15, 1861 (12 Stat., 1191),
between the Pottawatomie Indians and the United States, which was
proclaimed on April 19, 1862, the Leavenworth, Pawnee and Western
Bailroad was given the right to purchase from said Indians, the remain-
der of certain lands at one dollar and twenty- five cents per acre; and
t was provided that —
In case said company shall not pnrcbase said sorplos lands, or, having par-
ohaaed, shall forfeit the whole or any part thereof, the Secretary of the Interior
shall thereupon canse the same to be appraised at not less than one dollar and
twenty-five cents per acre, and shall sell the same, in quantities not exceeding one
hundred and sixty acres, at auction to the highest bidder for cash, at not less than
such appraised value.
This company having failed to purchase these lands, the same privi-
lege was given by the treaty of February 27, 1867, proclaimed August
7, 1868 (15 Stat., 531), to the Atchison, Topeka and Santa Fe Bailroad
Company, to purchase within thirty days, the purchase price having
been fixed at one dollar per acre.
Your communication states that the said last named company never
exercised this right; that under the authority of the fifth article of the
treaty of 1861, providing, in case of failure to purchase or forfeiture of
the lands purchased upon the part of the railroad company, that
"the Secretary of the Interior shall thereupon cause the same to he
appraised," your office recommended that the authority asked for should
be granted.
In the amendments to the treaty of February 27, 1867, supra^ it was
provided that the Atchison, Topeka and Santa Fe Railroad Company
should have the privilege of purchasing the unallotted lands of these
Indians, with the exceptions therein mentioned, at the price of one
dollar per acre, and it was stated that —
The said purchase money shall be paid to the Secretary of the Interior in trast for
said Indians M'^ithin Ave years from the date of such purchase, with interest at the
rate of six per cent per annum on all deferred payments, until the vrholo purchase
money shall have been paid; and before any patents shall issue for any part of said
DECISIONS BELATING TO THE PUBLIC LANDS. 615
lands, one handred thoasand dollars shall be deposited with the Secretary of the
Interior, to be forfeited in case the whole of the lands are not paid for as herein
provided ; (said money may be applied as the payment for the last one hundred thou •
sand acres of said land;) payments shall also be made for at least one fourth of said
unallotted lands at the rate of one dollar per acre, and when so paid the President is
anthorized hereby to issue patents for the land so paid for ; and then for every addi-
tional part of said land upon the payment of one dollar per acre. The interest on
said purchase money shall be paid annually to the Secretary' of the Interior for the use
of said Indians. If the said company shall fail to pay the principal when the same
shall become due, or to pay all or any part of the interest upon said purchase money
within thirty (30) days after the time when such payment of interest shall fall due,
then this contract shall be deemed and held absolutely null and Toid, and cease to
be binding upon either of the parties thereto, and said company and its assigns shall
forfeit all payments of principal and interest made on such purchase, and all right
and title, legal and equitable, of any kind whatsoever, in and to all and every part
of said lands which shall not have been, before the date of such forfeiture, paid for
as herein provided : Provided, however. That in case any of said lands have been con-
veyed to bona fide purchasers by said Atchison, Topeka and Santa Fe Railroad
Company, such purchasers shall be entitled to patents for said lands so purchased
by them upon the payment of one dollar and twenty-five cents per acre therefor,
under such rules and regulations as may be prescribed by the Secretary of the
Interior.
In this connection it is deemed proper to call to your attention the
application of Emma L. Pape, hereinbefore referred to. It is alleged
that the Atchison, Topeka and Santa Fe Railroad Company, on the
third day of January, 1872, by warranty deed, conveyed this land to
Arron Sage, and that by regular mesne conveyances this land became
the property of Emma L. Pape on the fourth day of November, 1891.
This showing is not sworn to, and the Department has not deemed
it proper to pass upon the question thus raised, it being the well estab-
lished usage of the Department to await a determination by your
office upon such questions before the taking of fbtial action here.
It is therefore determined that it would not be proper at this time to
grant the request of your office that the register at Topeka be author-
ized to have the lots in question appraised, in view of the fact that
should it be determined that Emma L. Pape is entitled to patent for the
land, the act itself {supra) has fixed the price.
Should Emma L. Pape, after a reasonable time given her, to be fixed
by your office, fail to properly assert her claim, there appears to be no
good reason why, at the expiration of such time, the register at Topeka
should not be authorized to have the said lots appraised, and you are
accordingly so directed.
The papers are herewith returned, and you will proceed to the adjudi-
cation of tlie rights of the said Emma L. Pape as, after investigation,
may appear just and proper.
516 DECISIONS RELATINa TO THE PUBLIC LANDS,
RAILROAD GRA^'T-^'ITIIDRAWAL OX GENERAL ROUTE.
ShANNAHAN V. ]!fOBTHERN PACIFIC E. R. CO.
The withdrawal for the benefit of the Northern Pacific railroad company, on the map
of general route filed August 15, 1873, cannot be pleaded by the company aa
against the operation of a pre-emption claim filed after the abandonment of saeh
route by the company, and prior to definite location.
Becret4iry BUm to the Commissioner of the General Land Office, June 15^
(W. Y. D.) 1897, (F, W. C.)
John Shannaban has appealed from the decision of your office, dated
Jane 14, 1895, holding for cancellation his homestead entry covering
the ^KE. 4 of 8W. J, W. J of 8E. J, and SB. J of SB. J Sec. 35, T. 27 ^\,
B. 6 E., Seattle land district, Washington, for conflict with the grant
for the Northern Pacific Bailroad Company.
Motion was filed on behalf of the company to dismiss said appeal on
^the ground that proper service was not made upon the company, the
notice having been served upon Thomas Cooper, land agent of the
company at Tacoma, Washington.
In the case of Boyle r. Northern Pacific E. E. Co. (22 L. D., 184),
similar service was held to be sufficient and the motion under consider-
ation is accordingly denied.
The company's claim to this land is made on account of its branch
line.
The map of general route of said line was filed August 15, 1873. Its
map of amended general route was filed on June 11, 1879, the latter
map being accepted by the Department and withdrawal ordered thereon,
the tract in question falling without the limits established upon the
said map of general route. Upon definite location of the road, as
shown by the map filed September 3, 1884, this tract fell within the
primary limits of the grant.
Prior to the filing of the map of definite location, to wit, on Febru-
ary 29, 1884, one John Pugh filed pre-emption declaratory statement
covering this land in which he alleged settlement February 16, 1884.
Your office under the authority of the decision of this Department
in the case of said company v, McMahon (18 L. D., 435) held that —
Whatever equities the pre-emptor might have asserted nnder his settlement and
filing were he still claiming the land, can not therefore inure to the heneflt of 8han-
nahan, a settler subsequent to definite location, nor be made the basis for holding
that the land was excepted from the company's grant.
Since the date of your said office decision, the Department has ren-
dered decision in the essentially similar case of Morrill t^. The Korthern
Pacific Eailroad Company (22 L. D., 636-7), in which it held that the
route of 1873 was abandoned by the company, and the Department
duly notified thereof as early as 1876, and that the withdrawal on the
map of 1873 cannot be pleaded as against those who settled upon or
entered the land prior to the filing of the map of definite location.
DECISIONS RELATING TO THE PUBLIC LANDS. 617
In view of said decision, I am of opinion that the pre-emption declara-
tory statement of John Pugh, in February, 1884, was properly allowed^
and served to except the tract in controversy from the operation of the
grant, upon the subsequent filing (on September 3, 1884, supra,) of the
map of definite location. (Whitney v. Taylor, 158 U. S., 85.)
The decision of your office is therefore reversed, and Shanuahan's
homestead entry will remain intact.
CHIPPETVA PINE LANDS-PITRCHASE— APPRAISAL.
James Eevob et al.
Caeh entries of Chippewa pine lands, made after dne offering nnder section 5, act of
January 14, 1889, and the amendatory act of February 26, 1896, should not be
canceled for inadequacy of consideration, where the appraised value of the land
was paid, and there is no evidence of collusion between the purchaser and the
government appraiser, unless such inadequacy is so great as to amount to a fraud
or imposition.
Directions given for withholding said lands from sale until further orders, and the
Commissioner instnicted to proceed with the survej"^ of said lands, and report
with respect thereto.
Secretary BUsh to the Commissioner of the General Land Ojflce^ June 15y
CW. V. D.) 1897. (0. J. W.)
By letter *'0" of April 2, 1897, your office transmits the answers of
six purchasers of Chippewa pine lands, whose entries were suspended
by order of January 4, 1897, in response to notices issued from the local
office at Grookston, Minnesota, calling upon them to show cause why
their entries should not be canceled. These showings are before the
Department, without recommendation from your office as to their suf-
ficiency. They embrace cash entry No. 2, issued to James Eevor, cash
entry No. 9 to Byron E. Lewis, cash entry No. 114 to Charles A. Weyer-
haeuser, cash entry No. 266 to Th. S. Berg, cash entry No. 381 to William
Parker, cash entry No. 393 to John Cronon.
The lands embraced in these entries are not covered by any special
rex>ort. In the case of Bevor his answer sets up that he purchased in
good faith and paid for the tract appraised at $50 the sum of $150.
Th. S. Berg answers that he made his purchase on the estimate made
by the government and did not know whether it was a proper estimate
or not, and does not yet know. The other answers neither admit nor
deny the underestimation of the lands purchased, but allege good faith,
and urge that if the examiners appointed by the government committed
any error it ought not to affect their purchases. In two of the cases the
entrymen have transferred their interests to other parties who join in
the answers and claim to be innocent purchasers. In no one of the
cases does any evidence of collusion between the purchasers and gov-
ernment examiners appear. None of the lands involved in these six
518 DECISIONS RELATma TO THE PUBLIC LAITOS.
I
entries are covered by the report of special agent Wright, and there is
therefore no evidence that there was any underestimate of the quantity
of timber upon them. There would seem to be no reason for longer
holding these entries suspended, and they are accordingly released from
the order of suspension and may pass to patent if otherwise free from
defect. This disposes of the cases In which formal answers have been
filed in response to the notice to show cause.
The public sale at the Crookston land office took place Jaly 15, 1896.
Thirty thousand four hundred and twenty acres were then sold at pub-
lic auction, and 32,236.78 acres, not then commanding bidders, were
afterwards sold at the appraised value at private sale, aggregating
1604 tracts sold and paid for in cash before January 4, 1897, the date
of the Secretary's order suspending the issuance of patents. In the
meantime, however, patents had been issued for 1155 tracts, leaving, to
be affected by the susi>eusion, only four hundred and forty nine tracts
represented by one hundred and thirty one entries and held by twenty
two purchasers.
Your office calls attention to the fact that the report of sx)ecial agent
Wright who made the investigation of the Chippewa pine lands, covers
only six tracts or subdivisions which are unpatented, and subject to
the order of suspension of January 4, 1897. It appears that this report
covered eighty-five subdivisions. Sixty-one of these subdivisions have
been sold and twenty-one remain unsold. The six unpatented tracts
which come under the rule to show cause were entered as follows : Five
by Frank P. Hixon and one by Sumner 0. Bagley. They have failed to
Tesx>ond to the notice to show cause. The only cause of complaint
against their purchases known to the Department is the alleged under-
estimation of the quantity of timber on the lands by the government
examiners, and the only evidence of underestimation is the discrepancy
between the estimate of chief examiner Douglass and the subsequent
one of special agent Wright, after the sales. In reference to this dis*
crepancy your office reports as follows :
C. E. No. 356 F. P. H. Gov. est. 51 M. feet. Spo. Agt. est. 70 M.
{< tt g^Y n it It ^ ft ti It it 221
It u 287 " " '* 602 " " " " 588
it tt 353 it tt ft 73 it tt it tt 129
it it 3g2 " *< " 104 t* " »< " 167
'' " 379 S.C.B. " " 182 *' " *' " 265
There is a difference shown between the Douglass estimate and that
of special agent Wright of one hundred and sixty-two thousand feet
in the aggregate on the five tracts purchased by Hixon, and a differ-
ence of eighty- three thousand feet on the tract purchased by Bagley.
Both estimates were made by persons representing the government,
and in its services, and, while the later estimate was evidently made
with much greater care and is much more reliable, neither can be said
to be absolutely accurate. The Department accepted the Douglass esti*
DECISIONS RELATING TO THE PUBLIC LANDS. 519
mate and made it the basis upon which the lands in question were
appraised and offered for sale; they were thus offered in accordance
with the fifth section of the act of January 14, 1889 (25 Stat., 642), as
amended by the act of February 2(5, 1896 (29 Stat., 17), which reads as
follows :
Sec. 5. That whenever, and as often as the survey, examination, and appraisal of
one hundred thoasand acres of said pine lands, or of a less quantity, in the discretion
of the Secretary of the Interior, have heen made, the portion so surveyed, examined,
and appraised shall he proclaimed as in market and offered for sale in the following
manner: The Commissioner of the General Land Office, under the direction of the
Secretary of the Interior, shall cause notices to he inserted once in each week, for
four consecutive weeks, in one newspaper of general circulation, puhlished in Minne-
apolis, Saint Paul, Dulnth, Stillwater, Taylors Falls, Fosston, Saint Cloud, Brainerd,
Crookston, and Thief River Falls, Minnesota^ Chicago, Illinois; Milwaukee, Wis-
consin; Detroit, 3iichigan ; Philadelphia, Pennsylvania ; and Boston, Massachusetts,
of the sale of said land at puhlic auction to the highest hidder for cash at the local
land office of the district within which said lands are located, said notice to state
the time and place and terms of such sale. At such sale said Tands shall he offered
in forty-acre parcels, except in case of fractions containing either more or less than
forty acres, which shall he sold entire. In no event shall any parcel he sold for a
less sum than its appraised value. The residue of such lands remaining uuHold
after such puhlic offering shall thereafter he suhject to private sale for cash at the
appraised value of the same, upon application at the local land office :
The intended sale was advertised in fifteen leading newspapers pub-
lished in the cities and towns named in the act aforesaid, and these
lands failed to find bidders at the public sale, who offered the appraised
value, and thus they became subject to private sale under the terms of
said act. Hixon and Bagley each pai4 the appraised value, and pur-
chased at private sale. !No collusion is shown between them, or either
of them, and the government estimators, and no act performed by either
in connection with the sale is complained of. The question arises
whether under the circumstances stated these entries should be can-
celed. The report of special agent Wright was referred to the Com-
missioner of Indian Affairs for examination and report, and it was
recommended by the latter that the offered lands be withdrawn from
sale (which has been done), and where sales had already been made of
tracts shown to contain a large excess of timber over that found by the
government examiners, that the entries be canceled for inadequacy of
consideration, allowing the sales to stand where the actual amount of
timber standing on the lands is not greatly in excess of the estimate
on which the same was sold. The officer making this recommendation
recognized the fact that inadequacy of consideration, which is made
the ground for setting aside a sale, must be great.
Mere inadequacy of consideration is not sufficient to invalidate a sale uuleHs it he
so great as to amount to ft'aud or imposition. (Amer. and Eng. Ency. of Law,
21-468.)
Here the government fixed the price and the purchasers merely
acquiesced by acceptance of the offer, and purchased. Considering
that the public sale had been so thoroughly advertised and that the
520 DECISIONS BELATIKG TO THE PUBLIC LANDS.
lauds, althon$rli offered, failed to find bidders who would then take them,
at the appraised value, I find uo such inadequacy in the price paid as will
now authorize the cancellation of these entries and they are released
from the order of suspension and may i)ass to i>atent.
Pending the preparation of this letter, your office transmitted a letter
from Otis Staples in reference to his cash entries Kos. 317 to 327
inclusive, in which he claims to have purchased in good faith. Tlie
tact that Mr. Staples had been connected with a corps of examiner?
who inspected and reported upon a portion of the lands afterwards
examined and reported upon by the Douglass examiners is mentioned iu
the report of special agent Wright. It appears, however, that Staples-
estimates were wholly disregarded, and the subseqent estimates of
Douglass and his examiners were accepted and made the basis of
departmental action in offering the lands for sale. Staples' purchases
were not made upon or controlled by his own estimates. Ko evidence of
collusion between Staples and any one connected with the Douglass
examination appears. The mere fieust that he had served as an examiner
would not prevent his afterward becoming a bidder for and purchaser
of lands offered on an estimate with which he had no connection, and
no cause appears for holding his entries longer in suspension.
T. B. Walker has submitted an informal answer to the rule against
him, relative to 8usi)ended entries l^os. 364 to 368 inclusive, embracing
five hundred and sixty acres, appraised at $5,555.00, for which he paid
the appraised value. He alleges good faith in the purchase made, and
the fairness of his entries is unimpeached by any testimony before me.
They are released from the order of suspension and may pass to patent
The order of January 21, 1897, to show cause, in so far as it embraced
entries not covered by the report of special agent Wright was, in a
large measure, precautionary, to afford opportunity for discovering
fraud, if it existed. Some of the purchasers have not yet responded to
the notice to show cause, and as to these cases your office reports that
you have no information upon which to base further adverse action,
and you ask for instructions.
The question fairly presented is, whether or not the failure upon the
part of purchasers who purchased at the appraised value, to resix>nd
to the notice served upon them to show cause why their entries should
not be canceled, shall itself be taken as sufficient cause for the cancel-
lation of their entries. The rule recites that it has been charged that
<^ the estimate of timber upon the land described was smaller than
should have been made,'' trnd the charge is the reason given for the
showing required. In my opinion the charge without any proof of the
truth of it will not authorize further action. As this proof is wanting,
and the purchases were all made at or above the minimum at which the
lands were appraised, and after the fact that they were offered had
been fully advertised, the continuance of the order of suspension would
seem to be unnecessary.
DECISIONS RELATING TO THE PUBLIC LANDS. 521
Therefore, the order of my predecessor, Secretary Francis, of Janu-
ary 4, 1897, so far as it directed your office " to withhold your approval
from whatever sales may have been made during the month of Decem-
ber (1896) which are not already approved'' is hereby revoked and
annulled. Your office order of January 21, 1897, approved by Secre-
tary Francis, directing the register and receiver at Grookston land
office, Minnesota, to notify purchasers to whom patents have not been
issued, that they are allowed fifteen days from date of said notice,
within which to show cause before your office, why their entries should
not be canceled and the land re-appraised, is also hereby revoked and
annulled. And your office is directed to consider and adjudicate said
purchasers' applications for patents, as if said orders had not been
issued.
The order of my predecessor, Secretary Francis, of January 4, 1897,
^^ stopping all sales of timber until further orders " is reaffirmed. Your
office is hereby directed to forthwith instruct the local officers at
Crookston and also at Duluth, Minnesota, to make no more private
sales of ^'pine lands" under the schedule of appraisement approved
April 24, 1896, and heretofore published, until further orders from this
Department.
In the meantime, your office will proceed with all possible diligence,
within appropriations heretofore and hereafter made, to complete the
surveys of all the lands ceded to the United States by the Chippewa
Indians- in Minnesota by the agreements approved by the President on
March 4, 1800 — as required by the fourth section of the act of January
14, 1889.
Your office will also, as soon as possible, report in detail to this
Department what quantity of the << lands so ceded to the United States"
have been heretofore surveyed, and the amount of money that has been
expended on account thereof; describing the townships and parts of
townships so surveyed, and the number of acres contained therein.
Your office will also report what part of the ^Hands so ceded" have not
been surveyed ; describing the same and the locations thereof and giving
the names of the reservations to which they belong, and estimating the
number of acres therein, according to the best information now acces-
sible; and also report an estimate of the shortest time within which
surveys of all of said lands can be completed as required by law, and
of the amount of money that will be necessary to complete them; in
order that Congress may be asked to make the necessary appropria-
tions, and that the Secretary may be able to determine what steps
should be taken to carry out the act of Congress of January 14, 1889,
do justice to the Indians, and protect the Treasury of the United States.
522 DECISIONS RELATING TO THE PUBLIC LANDS.
swamp gkant-conflicnno state gbant.
State op Ohio.
The grant of swamp lands does not include alternate reserved sections within the
limits of a prior g^rant to the State for canal purposes.
Secretary Bliss /o the Commissioner of the General Land Office^ June 15y
(W. V. D.) 1897. (G. C. R.)
The State of Ohio has appealed fh>m your office decision of August
29, 1894, which rejects its claim for all of Sec. 7, T. 6 S., R. 4 E.,
Columbus, Ohio, as inuring to the State tinder the act of September 28,
1850 (9 Stat., 519), known as the swamp land act.
It appears that the section of land so applied for is within the limits
of the grant to the Stat« of Ohio, to aid in extending the Miami Canal
from Dayton to Lake Erie by the Maumee route, under the act approved
May 24, 1828 (4 Stat, 305); also that said section of land is one of the
reserved sections as provided for in the act. Said act provides that
the alternate reserved sections << shall not be sold for less than two
dollars and fifty cents per acre."
The land so applied for appears to have been placed at two dollars
and fifty cents per acre, as provided in the act, and proclaimed at that
price September 2, 1844. There is no contention that the section in
question was not so reserved before the passage of the swamp land act
The lands so situated did not pass to the State under the subsequent
grant of 1850 (supra)^ even though they were swamp in character. The
lands were reserved to the government for the purpose of reimbursing
itself for other lands granted. State of Ohio, on review, 10 L. D., 394.
The decision appealed from is affirmed.
HOMESTEAD SETTI^MENT-ENTRY— ACT OF MAY 14, 1880.
Stewart r. Pboyencb.
Under the departmental constrnction of section 2297, R. S., a homestead entryman
has six months from the date of hi8 entry within which to establish actual resi-
dence on the land; but during such period his entry occupies the status of a
settlement claim, and will defeat the right of entry on the part of a prior home-
stead settler who has failed to assert his claim within the statutory period.
Secretary Bliss to the Commissioner of the General Land Office, June 15,
(W. Y. D.) 1897. (W. A. E.)
On January 4, 1895, Thomas V. Provence made homestead entry for
the SW. i of the SVY. i of Sec. 4, the NW. J of the :SW. J of Sec. 9,
the SE. i of the SB. J of Sec. 5, and the NE. i of the NE. i of Sec. 8,
T. 8 S., E. 24 E., Roswell, New Mexico, land district
On March 27, 1895, James H. Stewart filed affidavit of contest alleg-
ing that on December 7, 1894, he settled upon a portion of the land now
DECISIONS RELATING TO THE PUBLIC LANDS. 523
embraced in said entry, viz., the SW. J of the SW. J of section 4, and
the NW. J of the NW. J of section 9; and that he has since continn-
ously resided upon and improved the same.
A hearing was had on May 13, 1895, and on June 11, 1895, the local
officers rendered their decision recommending the dismissal of the con-
test for the reason that Stewart, the contestant, had not filed his appli-
cation or initiated contest prior to the expiration of three months from
the date of the alleged settlement.
On appeal, your office, by letter of January 2, 1896, affirmed the deci-
sion below, whereupon Stewart filed farther appeal to the Department.
The testimony shows that on December 7, 1894, Stewart settled upon
the S. i of the S W. i of Sec. 4, and the W. J of NW. 4 of Sec. 9, said
township and range; that he has since resided there; aud that at the
date of the hearing his improvements consisted of a dugout, a well,
some fencing, breaking, and a few trees set out, the total value of the
improvements being about $150. Provence, the entrymen, had neither
established actual residence nor made any improvements on the land at
the date of the hearing, which was held before the expiration of six
months from the date of his entry.
Prior to the passage of the act of May 14, 1880 (21 Stat., 140), a home-
stead right was initiated solely by entry. He who first filed a valid appli-
cation for the land had the superior right. Settlement prior to entry
availed nothing under the homestead law, and could not defeat the right
of one who made entry subsequent to the settlement and prior to
the time the settler filed his application. Said act of May 14, 1880,
provided (Sec. 3) :
That any settler who has settled, or who shall hereafter settle on any of the pub-
lic lands of the United States, whether surveyed or nnsnrveyed, with the intention
of claiming the same under the homestead laws, shall be allowed the same time
to file his homestead application and perfect his original entry in the United States
land office as is now allowed to settlers under the pre-emption laws to put their
claims on record ; and his right shall relate back to the date of settlement, the same
as if he had settled under the pre-emption laws.
Section 2265 of the Revised Statutes of the United States, relative to
pre-emptions, read as follows :
Every claimant under the pre-emption law, for land not yet proclaimed for sale, is
required to make known his claim in writing to the register of the proper land
office, within three months from the time of the settlement, giving the designation of
the tract and the time of settlement; otherwise his claim shall be forfeited and the
tract awarded to the next settler in the order of time on the same tract of land, who
has given such notice and otherwise complied with the conditions of the law.
Stewart made settlement on December 7, 1894, but did not ^'make
known his claim in writing to the register " within three months from
the date of his settlement. The question presented here, then, is,
whether or not Provence is the next settler in the order of time on the same tract of
land, who has given such notice and otherwise complied with the conditions of
the law.
524 DECISIONS RELATING TO THE PUBLIC LANDS.
The homestead law requires settlement and residence. The D^iart-
ment has uniformly ruled that a homestead entryman has six months
from date of entry within which to establish his actual residence on the
land. This rule is a departmental construction of section 2297 of the
Bevised Statutes of the United States, as amended by the act of March
3, 1881 (21 Stat, 511), which reads as follows:
If, at any time after the filing of the affidavit, as required in section twenty-tiro
hnndred and ninety, and before tlie expiration of the five years mentioned in section
twenty-two linndred and ninety-one, it is proved, after due notice to the settler, to
the satisfaction of the register of the land office, that the person having filed such
affidavit has actually changed his residence, or abandoned the land for more than six
months at any time, then and in that event, the land so entered shall revert to the
government : Provided, That where there may be climatic reasons the Commissioner
of the General Land Office may, in his discretion, allow the settler twelve months
from the date of filing in which to commence his residence on said land nnder such
rules and regulations as he may prescribe.
It is held, however, that, in contemplation of law, the residence of a
homestead entryman commences from the date on which he makes his
entry. Thus, in the case of Barney Phillips (1 L. D., 94), it was held
(syllabus) that
the five years allowed in a homestead entry, date from entry and not from the com-
mencement of personal residence on the land entered.
In the case of J. J. Gaward (3 L. D., 505) it was said :
It is my opinion that the law contemplates that the residence of the homestead
claimant commences flrom the date on which he makes entry, and while exceptions
have been made in his behalf in the statutes, still he can not invoke such aid to
enable him to maintain two separate residences on public lands, under two separate
and distinct laws, either of which exacts a single continuous residence.
In Austin v. Norin (4 L. I>., 461) it was held that:
The residence of the homestead claimant commences fh>m the date on which he
makes his entry. Whilst a pre-emption claim is pending, the claimant can not make
a homestead entry without abandoning his pre-emption claim, because bona Me
residence can not be maintained upon two different tracts at the same time.
In the case of Krichbaum v. Perry (5 L. D., 403), it wan said :
Whilst a homestead entryman is allowed six months within which to establish his
actual residence upon the tract embraced in his entry, the law regards his residence
as commencing from the date of his entry, and if it appears, or as in this ease is
shown by proof, that residence after that date is elsewhere, then clearly the home-
stead entry was illegal.
The efitect of these various rulings is that a homestead entryman has
six months from the date of his entry in which to establish his actual,
personal residence on the land, and if he establishes residence within
that time, such act relates back to the date of his entry, and he then
becomes, in contemplation of law, a resident from the date of said
entry.
Applying this rule to the i)re8ent case, Provence, the homestead en-
tryman, had six months from the date of his entry, that is, from Jann-
DECISIONS RELATING TO THE PUBLIC LANDS. 525
ary 4, 1895, in which to establish his actaal personal residence on the
land, and such residence, if established within that time, would relate
back to the date of his entry. He would thus become a resident, in
contemplation of law, from the date of his entry, and would be
the next settler in the order of time on the same tract of land who has given notice
and otherwise complied with the conditions of the law,
and would have a better right than Stewart, who took no steps to pro-
tect his settlement rights until after the expiration of three months
from the date of his settlement and after the intervention of Provence's
claim.
As before shown, the proviso to Sec. 2297, as amended, reads: —
That where there may he climatic reasons the Commissioner of the Greneral Land
Office may, in his discretion, allow the settler twelve months from the date of filing
in which to commence his residence on said land under such rules and regulations
as he may prescribe.
Here the entryman, who has not yet commenced his residence upon
the land, is spoken of as '^the settler." The statute authorizes the
Commissioner to '^ allow the settler twelve months from the date of
filing in which to commence his residence." The person who has filed,
but has not commenced his residence upon the land, is by legislative
interpretation called a "settler." Being a "settler" and having filed
ui>onthe land, he is a "settler .... who has given such notice"
within the meaning of Sec. 2265.
The trial in this case was held before the expiration of six months
from the date of Provence's entry, so that, although he had not at that
time established his actual, personal residence on the land, he was not
in default, as the law gave him six months in which to establish an
actaal, personal residence which would relate back to the date of his
eutry. As the record is presented to the Department, Provence has
the superior right to the tract in dispute.
Your office decision is affirmed.
PRACTICE— MOTION FOR REVIEW-ATTORNEY.
Edwin F. Frost et al. (On Review.)
A motion for reyiew filed by an aUeged agent and attorney of a State will not be
entertained where snch attorney has not complied with the regnlations in regard
to the admission of attomeys-at-law to practice before the Department, and has
shown no authority to represent the State either as attorney or agent; and
where it mnst be presumed that the State would not give such authority to any
person, on account of its having executed a quit-claim deed of the land involved
to the United States.
Secretary Bliss to the Commissioner of the General Land Office^ June 15^
(W. V. D.) 1897. (J. L.)
This case involves lots 3 and 4 of section 35, and lots 3 and 7 of sec-
tion 36, T. 31 8., E. 39 B., Gainesville land district, Florida.
626 DECISIONS RELATING TO THE PUBLIC LANDS.
One B. F. Hampton, describing himself as agent and attorney for
the State of Florida, lias filed in the name of the State, a motion for a
review of departmental decisions of December 26, 1896, and February
6, 1897, 24 L. D., 228, in this case.
Said motion cannot be entertained. I am informed by your letter of
transmittal that Mr. Hampton has never complied with the regnlations
in regard to the admission of attomeys-at-law to practice before the
Department of the Interior. He has shown no authority to represent
the State of Florida either as agent or as attorney. Moreover, the
decision sought to be reviewed shows, that the Commissioner of the
General Land Office informed the governor of Florida that the lots of
land in question had been inadvertently and through mistake certified
to the State, requested him to transmit a deed relinquishing and reeon-
veying said lots to the United States, and offered to permit the State
to select an equal quantity of land elsewhere in lieu thereof. Accord-
ingly, the governor transmitted to the Oeneral Land Office a quit-claim
deed to the United States for the four lots of land involved, bearing
date August 17, 1895, and executed by the Board of Education of the
State of Florida. Therefore, it is presumed, that the proper authorities
of the State have not authorized and will not authorize any 2>er8on to
file a motion for review, or to attempt to take any step inconsistant
with the deed aforesaid.
Said motion for review is hereby denied; and your office will proceed
to comply with the directions contained in the departmental letter of
February 6, 1897, above referred to,
Caldwell v. Gold Bae Mining Co. et al.
Motion for review of departmental decision of March 15, 1897, 24
L. D., 258, denied by Secretary Bliss, June 15, 1897.
TOWN8ITE-ACT OF IN CORPORATION— ADDITIOKAL ENTRT.
City of Cha3Iberlain r. King et al.
An act of a territorial legislature establishing the corporate limits of a city, so a«
to include therein lands embraced at such time within an Indian reservation, is
inoperative as to the lands so reserved, and on the removal of the reservation
no bar to the allowance of a homestead entry.
The right to make an additional townsite entry only exists where the applicant has,
prior thereto, made a townsite entry of public land, and is limited then to land
contiguous to that embraced within the original entry.
Secretary Bliss to the Commusioner of the General Land Office^ Jtint 15,
(W. y. D.) 1S97. (C. J. W.)
On April 15, 1895, Henry J. King made application to make home-
stead entry for lots 3 and 4 and SE. J S W. J, Sec. 10, and lots 1 and 9,
DECISIONS RELATING TO THE PUBLIC LANDS. 527
Sec. 16, T. 104, I^., E. 71 W., 5tli P. M., Chamberlain land district,
South Dakota. On the same day J. W. Orcutt, as mayor of Chamber-
lain, made application to make townsite entry of said land, for the use
and benefit of the occupants thereof, and on the same day Eliza Eey-
uolds applied to make homestead entry for lots 1 and 9 of Sec. 15.
Henry J. King's application was first presented, and with it the law-
fnl fees were tendered. Orcutt and Eliza Reynolds were present, and
each protested against the allowance o^ the entry. The fees were
rejected, and the application received and filed. Orcutt, as mayor,
then presented his application to make townsite entr^^ (and tendered
the fees), which was disposed of in the same way; and next in order
Eliza Beynolds presented her application to make homestead entry for
lots 1 and 9 of Sec. 16, T. 104, R. 71 W., with a tender of the fees, which
application was similarly treated.
The various applications set out the basis of their respective claims.
A hearing was ordered, that the parties might have opportunity to
ofifer proof of their claims, and on the day set, the several parties
appeared in person and by councel, and the case was duly continued,
and the hearing finally commenced on June 20, 1895, with all parties
present. Each party offered evidence from time to time, until the
hearing closed, — two continuances occurring before the close, on July
19, 1895. On September 24, 1895, the local officers rendered their deci-
sion, in which they reject the application of Orcutt, Mayor, and hold
that Eliza Beynolds is entitled to make homestead entry, for the land
applied for by her, and that Henry J. King is entitled to make home-
stead entry, for the lands applied for by him, except lots 1 and 9 of
Sec. 15.
From this decision appeal was taken to your ofiice, and on March 24,
1896, your ofiice modified the decision by limiting the right of entry of
Eliza Reynolds to lot 9, and awarding to King the right to make entry
for all the land applied for, except lot 9. The application of the mayor
was dismissed. The modification of the decision of the local officers
as between the homestead applicants was in accord with a stipulation
and agreement between them, filed December 16, 1895. Orcutt filed a
motion to strike out this agreement and certain affidavits from the
record, l^o specific action seems to have been taken on this motion.
April 20, 1896, a motion for review of your office decision of March 24,
1896, was filed, and on July 6, 1896, the same was overruled and the
decision adhered to. Counsel for the townsite claimants filed an ax>i>eal
from this decision on July 18, 1896 and brief in support of the same.
On motion of counsel for homestead applicants, the case was made
special, and a hearing had, at which counsel for both sides appeared
and were heard orally and by brief. The appeal undertakes to specify
forty grounds of error, but it is not deemed necessary to set them out
here, or to treat them in detail in this opinion, since all that is vital
and material to the case, in the contentions of appellant, can be stated
528 DECISIONS RELATING TO THE PUBLIC LANDS.
in more concise form. The land involved is a parfc of the Crow Greek
and Winnebago Indian reservation, and for which the Chicago^ St
Paul and Milwaukee Hallway Company treated with said Indians, with
the approval of the Secretary of the Interior, and occupied it nnd»
agreement made with them; bat it does not appear that the agreement
was ratified by Congress.
By section 16 of the act of March 2, 1889 (25 Stat., 888), the land in
question was provisionally included in the grant to the Chicago, St
Paul and Milwaukee railway company, and in the event of the for-
feiture of the company's rights, the land covered by the grant was to
revert to the United States and become a part of the public domain,
and be open to homestead entry under the provisions of said act, upon
notice of its restoration. The forfeiture of the company's rights was
declared by proclamation of the President on December 5, 1894 (19
L. D., 431). The land thus forfeited and restored was duly opened to
entry under the homestead laws, on April 15, 1895. Such rights as
the railroad company had were acquired while the land was in reserva-
tion, and the effect of its agreement with the Indians was to keep it in
reservation, except for its own use, so long as held by virtue thereof,
and it may therefore be said that it was never subject to entry, until
April 15, 1895, and all applications, to enter before that time go for
naught (Smith r. Malone, 18 L. D., 482). The act of March 2, 1889 (Sec-
tion 23) makes provision for preference rights to persons who attempted
settlement upon lands declared to be open to settlement under procla-
mation of February 27, 1885, between said date and April 17, 1885,
when it was revoked. This provision has no application as betwera
persons claiming to have made or attempted settlement during this
period, but is applicable as between such settler or settlers, and appli-
cants who neither made nor attempted to make settlement under said
proclamation.
The status of the land as well as of the claimants is to be considered
as it existed on the 15th of April, 1896, when in fact and law the
land was opened to settlement. As to this particular land, the 16th
section of the act of March 2, 1889, provides, if it remains the property
of the railroad, that no part of it shall directly or indirectly be used
for townsite purposes, and in the event of the forfeiture of the rights
of the railroad, that it shall be open to homestead entry under the pro-
visions of this act. It may be questioned whether it is subject to other
than homestead entry, but be that as it may, the claims of the townsite
settlers will be further considered.
Their contention is, that the land in controversy is within the corpo-
rate limits of the city of Chamberlain, and is therefore not subject to
homestead entry, but is subject to entry for townsite purposes. It is
shown that the legislature of the Territory of Dakota, amended tlie
act incorporating the city of Chamberlain, so as to inelnde the land in
controversy, which amending act was approved, March 7, 1885, a sheet
time before the various attempts at settlement were made.
DECISIONS RELATING TO THE PUBLIC LANDS. 529
It is apparent that the alleged fact that the land is within the cor-
porate limits of the city, depends upon the validity of the act men-
tioned, and its validity depends upon the power and authority of the
territorial legislature to exercise control over it. It is to be observed
from the date of the act, that it was passed during the interval between
the proclamation opening the Crow Creek and Winnebago Indian res-
ervation to settlement, February 27, 1885, and the subsequent procla-
mation, revoking that order on the ground that it was violative of the
treaty stipulations with said Indians, which later proclamation bears
date, April 17, 1885. Presumably the legislature assumed legislative
control of this territory, on the theory that it was no longer an Indian
reservation, but by order and proclamation of the President, had
become and was a part of the public domain, and lawfully within its
jurisdiction. Under this view it was not asserting a right to exercise
jurisdiction over territory within an Indian reservation, but simply
over territory which had once been a reservation, but was then a part
of the public domain. Under any other view it would appear to have
ignored section 1839 B. S., which contains an ex-press prohibition of
territorial interference with the rights of Indians or their property
where they have rights unextinguished by treaty between them and
the United States. The proclamation of the 17th of April, 1886 (23
Stat., 844), revoking the order of February 27, 1885, declares the
ground of its revocation to be that it is in contravention of the treaty
obligations of the United States, with the Sioux tribe of Indians, and
that the lands intended to be embraced were existing Indian reserva-
tions. The treaty to which reference is made was concluded April 28,
1868, and proclaimed February 24, 1869 (15 Stat, 685). The land in
dispute is embraced in a reservation created and set apart by article 2
of said treaty, and declared to be for the absolute and undisturbed use
and occupation of the Indians, and to be free ft'om settlement, use or
occupancy of any other persons than said Indians.
The act organizing the Territory of Dakota, March 2, 1861 (12 Stat.,
230), which fixes the general boundaries and authority of the Territory,
excepts therefrom the rights of person and property of Indians, so long
as they remain unextinguished by treaty.
Section 1851 U. S. Kev. Stat., provides :
The legislative power of every territory shall extend to all rightfnl snbjects of
legislation not inconsistent with the constitiitiou and laws of the United States.
The Sioux treaty was a law of the United States, and a territorial
statute atteinpting to extend a city or town government over a reserva-
tion established by that treaty was inconsistent therewith and beyond
the legislative power of the Territory. The attempt to include the land
in controversy within the corporate limits of the city of Chamberlain
was consequently abortive. Its inclusion in an Indian reservation
was the obstacle in the way. It has been considered, whether or not,
upon the removal of that obstacle, ijyso facto, the act of the legislature
10671— VOL 24 34
630 DECISIONS RELATING TO THE PUBLIC LANDS.
illegal at the time of its passage would be cared of its defect and become
operative. The coDclusion reached is, that it would not, Wbeu Con-
gress came to deal with the question of extinguishing the Indian title
to the land involved, it doubtless could have given validity to the act
of the territorial legislature by then recognizing it, but uotwithstand-
iug this particular tract was made the subject of discussion and special
consideration in connection with the claim of the railroad to it, Congress
did not do so, but treated it as a tract outside city limits. It is so
regarded in this opinion, and this objection to the homestead applica-
tions disappears. It is incumbent then upon the townsite applicant to
show compliance with existing townsite laws, and actual occupancy of
the land for townsite purposes, prior to the occupancy of the home-
stead applicants. It appears irom the evidence in this case that the
city of Chamberlin was founded upon private land, and that of such
laud it had not less than thirty-six hundred acres within its corpoi*ate
limits, of which 880 acres had been laid off and platted. It further
api>ears that there is a strip of land lying along the north edge of the
platted portion of the city, which belongs to the Chicago, St. Paul and
Milwaukee Bailway Company, consisting of about thirty-five acres,
which separates the city from the land in dispute. It also ap])enr8
irom the evidence and the Census Report for 1890, that the iK>pulatioii
of the city consisted of 939 |>ersons. It is apparent that the city pos-
sesses an area ample for the accommodation of its present population
for all legitimate townsite purposes.
Section 2389, R. S., provides for the entry of public lands for town-
site purposes, according to population, and as amended by the act of
March 3, 1877 (19 Stat., 392) fixes the maximum of public lands which
may be acquired by any city at 2560 acres, for such purposes.
It would appear that the city of Chamberlain possesses already an
area in excess of this maximum, but I am of opinion that as no part of
this area was of the public domain, it would be entitled to add to it
from the public domain to meet actual wants of its population, for space
to carry on trade and business and for residence in connection there-
with, if such necessity was shown to exist.
No such necessity is shown in this ease, but on the contrary the city
appears to have land and space in excess of population and business,
and it does not appear that any part of the land in question is occupied
and used for trade and business, unless the use of a boat landiug, by
King, one of the homestead ap])licants, is to be thus classed.
The improvements made by the townsite settlers in 1885 were esti-
mated at fi*om $12,000 to $15,000, but were composed chiefly of build-
ings moved from Chamberlain proper, and afterwards moved back
again. The value of the improvements of the present settlers is esti
mated at from seven to nine thousand dollars, which includes tbe
improvements of the two homestead applicants, the railroad pump, or
waterworks, and a county bridge. Most of the buildings are such as
DECISIONS RELATING TO THE PUBLIC LANDS. 531
have been removed from elsewhere. The present alleged occupants
inclade about twenty families most of whom are shown to reside in fact
in Chamberlain, and only three were settlers in 1885.
On February 14, 1890, counsel for townsite claimants suggested the
death of J. W. Orcutt and the substitution of acting mayor E. H.
Somers as a party in his stead. The right of the successors of Orcutt,
as mayor, to represent the interests of the townsite settlers is recog-
nized, and their rights and standing are unaffected by the death of
said Orcutt.
The pleadings do not indicate whether it is the purpose of the appli-
cant to make original townsite entry, or additional. If the latter is
intended, it cannot be allowed, for the right only exists where the
applicant has prior thereto made a townsite entry of public land, and
is limited then to contiguous tracts, and the proof shows this land to
be non-contiguous to the present limits of the city. If it is intended
to found a new town, the law in reference to this class of entries has
not been followed or complied with.
Your of&ce properly modified the decision of the local of&ce, so as to
conform to the stipulation between the homestead applicants. It
affects only matters in controversy between them, and about which
they had a right to agree, and the objection to such agreement by the
townsite applicant is not well founded. The homestead applicants
made their respective settlements on February 27, 1885, and claim to
have remained on the land ever since, apparently with the consent of
the raihroad company, while its rights were in doubt. King's improve-
ments are estimated at from three to four hundred dollars, and Mrs.
Reynolds' at $200. They seem to have acted in good faith, and no
valid reason appears why they should not be allowed to make entries
according to the terms of your office decision. King's right to make
entry in the event of the forfeiture of the railroad company's rights
was virtually conceded in the case of King v. Chicago^ Milwaukee and
St. Paul Railway Company (14 L. D., 167).
Your office decision is accordingly affirmed.
HOMESTEAB-SECOND ENTRY.
Anna Lee.
The rignt to make a second homestead entry may be accorded to one who in good
faith relinquishes the first on account of an adverse claim asserted to the land
included therein.
Secretary Bliss to the Commissioner of the Oeneral Land Office^ June 15 j
(W. V. D.) 1897. (G. B. G.)
Anna Lee has filed a motion for review of departmental decision of
December 23, 1896 (unreported), rejecting her application to make a
532 DECISIONS RELATING TO THE PUBLIC LANDS.
second homestead entry — tlie land applied for being the SW. J of Sec.
12, T. 22 N., R. 6 W., Enid land district, Oklahoma.
In view of the allegations contained in the motion for review it will
be necessary to set forth in detail the proceedings heretofore had iu
this case and in connection therewith.
On May 4, 1892, one James Barke made homestead entry for the
NE. i of Sec. 15, T. 16 N., R. 8 W., Kingfisher land district, Oklahoma.
On May 6, 1892, one Elmer Wells instituted contest against Bnrke-s
entry, alleging prior settlement.
On June 11, 1892, the said Anna Lee filed contest against Burke's
entry, alleging prior settlement.
On July 1, 1892, Burke relinquished his entry, and Mrs. Lee entered
the land.
On July 10, 1892, it appears from a report of the register of the
Kingfisher land office, Wells was notified by registered letter that
the relinquishment of Burke had been filed, and that Anna Lee had
made entry for the laud, and directed him to appear within thirty days
and take proper steps, or his contest would be dismissed.
On September 14, 1892, Wells filed motion and protest, a copy ot
which, according to the report of the register and receiver, were at-
tached to his contest record and made a part thereof, but such paper
can not now be found in the record.
On December 22, 1892, Mrs. Lee's entry was canceled for relinquish-
ment, and her lather, Leonard Doty, made homestead entry of the
tract.
Wells appears to have taken no further steps in the matter of his
claim to the land, and on June 20, 1893, the local officers dismissed
his contest for want of prosecution.
On September 18, 1893, Mrs. Lee filed application to make a second
homestead entry, which was transmitted by the local officers to the
General Land Office, and in considering the same, on March 20, 1895,
your office held that her relinquishment was her voluntary act, and
rejected her application; and on September 7, 1895, a motion for review
of said decision was denied.
The applicant appealed to the Dapartment, and on December 23,
1896, the action of your office was concurred in and your decision
affirmed.
Said departmental decision summed up the report of the local officers
as showing —
That there is no record of any contest against said entry bj WeUS; or any other
person; that there was at the date of her relinquishment no adverse dalm of record.
The motion for review alleges :
(1) If the record of the NE. ^ 15-16-8, Kingfisher district, shows, as stated in the
decision, that there was no contest or other adverse claim of record for said land at
date of relincf uishnient by her, it is erroneous ....
(2) At the date of her relinquishment of her former entry (December 22, 1893}, the
DECISIONS RELATING TO THE PUBLIC LANDS. 533
prior contest of Eliner Wells was still of record, and was not dismissed for more than
six months after her relinquishment.
(3> The supplemental affidavits filed by Mrs. Lee show . *. . . that while the con-
test of Elmer Wells was not against her, but James Burke, it was nevertheless for
the same Innd, and an adverse claim based on a prior contest.
(4) The entry of James Burke having been made by mistake, the real claimants for
the Kingfisher tract were Elmer Wells and Anna Lee ; and a reference to the record
will show that this was the reason of the oversight in the local office at that place
iu reporting, as they did, that there was no contest against Anna Lee for said land.
(5) If the application for second entry fails to show that she relinquished on account
of the adverse claim of Elmer Wells, and on account of her poverty and inability to
defend a contest, the supplemental showing made by her reveals these facts, and
should have been considered in connection with her application.
Yonr office decisions of March 20 and September 7, 1895, each state:
"The contest ofWells was dismissed for want of prosecution; and, on
July 1, 1892, Burke relinquished his entry for the tract." The construc-
tion of the sentence above quoted would indicate the understanding on
the part of your office that the dismissal of Wells' contest preceded
Lee's homestead entry — so that when the latter was made the land was
free from all conflicting claims.
It is probable that the statements of your office, and it is certain that
the statement of the Department, were based upon the paragraph in
the report of the register of the local office at Kingfisher to your office,
under date of February 14, 1895 :
"June 26, 1892, the contest case of Elmer Wells, No. 1552, was dis-
missed for want of prosecution."
Attached to the motion for review is an alleged transcript from the
docket of the Kingfislier office, showing that Wells' contest was dis-
missed on June 26, 1893— not 1892.
It is unquestionably tbe fact that Wells' contest was dismissed on
June 26, 1893.
It appearing, therefore, that the contest of Wells was i)ending at the
date of Mrs. Lee's relinquishment, on December 22, 1892, the effect of
this changed statement of facts on the conclusion reached in the deci-
sion under review remains to be seen.
It will be remembered that the contest of Wells against the entry of
Burke was based on the same ground as that of Mrs. Lee's contest
against the same entry, to wit, prior settlement.
Mrs. Lee's subsequent entry of the tract was not the result of an
adjudication on her contest, but because hers was the first application
for unap])ropriated public land after Burke had relinquished his entry.
Inasmuch as the contest of Wells was pending at that time, the proper
practice would have been to order a hearing to determine the question
of priority between Wells and Mrs. Lee. If this had been done, the
question now before the Department could not have arisen.
It is well settled that a homestead right is not exhausted by an entry
which through no fault of the entryman cannot be x>erfected; and this
rule should, in my judgment, be held to embrace all cases in which the
entryman in good faith believes, and has reasonable grounds to believe,
634 DECISIONS RELATING TO THE PUBLIC LANDS.
that the entry can never ripen into a perfect title, such belief being
founded on information acquired after the entry is made.
It is against the policy of the law to require an entryman to continue
to reside on and improve a tract of land, unless he may reasonably
hojye for a consummation of title, and it would be altogether inequitable
to hold that a qualified homesteader, who has in good faith made entry
of a tract of land for the purpose of making it his home, and afberwanls
abandons it, thereby forever exhausts his homestead right, if it appears
to have been abandoned without fault. See Thurlow Weed (8 L. D.,
100) J Chas. Wolters (Id., 131).
In this case it is urged by Mrs. Lee, under oath, —
That soon after making said entry she was contested by a person by the name ot
Wells, whose first name is unknown to affiant^ and that he located npon the lantl
and commenced improvements by baildinfi^ a honse thereon, and breaking the
ground, and doing lasting and valuable improvements, and claimed to be a prior
settler ; and this affiant was not positive whether she was the first settler or not.
Affiant further says that she is a widow, and not possessed of sufficient means to
stand the expense of a contest; that she had no relatives or friends from whom she
could procure means to fight said contest against the claim of prior settlement of
the said Wells ; that she was at the time, and still is, compelled to support herself
by her own manual labor; that she was at the time engaged in sewing for a living:,
in the city of Kingfisher, and that the land referred to was five or six miles from said
town, and affiant could not procure work to support herself in the neighborhood of
her said former claim ; and for all the foregoing reasons affiant relinquished said
claim.
She further states, in a supplemental affidavit, that she made settle-
ment on the land now applied for
for the purpose of making homestead entry thereof, on the afternoon of Sept. 16.
1893, and was the prior settler thereon, and that she had made said tract her home
and resided thereon continuously since said time. That she is now residing thereon
in good faith making said tract her home, to the exclusion of a home at any
other place, and has the following improvements thereon, to wit, a frame house
fourteen feet by sixteen feet, shingle roof, two doors, two windows, floor, and
finished complete with wall paper, suitable for habitation, that she has about three
acres broken and other valuable improvements worth in all at least one hundred
and fifty dollars.
If the facts stated in these affidavits are true, this would seem to be
a proper case in which to permit a second entry, in the absence of a
prior valid adverse claim to the land applied for.
It appears from the statement of the local officers that on September
19, 1803, one Henry J. Eoach applied to make homestead entry for
said land, and on December 5, 1893, filed a second homestead applica-
tion for the same tract, having theretofore, on October 30, 1893, filed
contest and protest against Anna Lee^s application for second entry.
It appears further, that on February 8, 1894, one Qeorge D. Herring
filed homestead application for the same land.
The protest of Roach alleges, that the said Mrs. Lee relinquished,
abandoned and sold, for a valuable consideration, the land covered by
her first entry, without any honest eftbrt to comply with the law in the
DECISIONS RELATING TO THE PUBLIC LANDS. 535
matter of residence or improvements, and without having any valid
reasons for the failure to comply with the law as aforesaid.
In consideration of the premises, I have therefore to direct that a
hearing be ordered herein, on the protest of Eoach, at which hearing
evidence may be offered going to the good faith of Mrs. Lee's relin-
quishment of her entry, as also the question of any prior valid adverse
claim to the land now applied for, of which hearing Mrs. Lee, Roach
and Herring should have notice.
HOMESTEAD CONTEST— DESERTED WIFE-RELINQTJISIIMENT.
Doyle v. Bender.
The right of a deserted wife, who is living on the land covered by the entry of her
hnsbandy attaches at once on the filing of his relinqnishment, and defeats the
intervening adverse entry of another.
Secretary Bliss to the Commissioner of the Oeneral Land Office^ June 17y
(W. Y. D.) 1897. (E. M. E.)
This case involves the 8W. J of Sec. 16, T. 11 N., R. 2 B., Oklahoma
land district, Oklahoma Territory.
The record shows that on September 28, 1891, one Samuel Doyle made
homestead entry of the above described tract. June 17, 1893, he filed
bis relinquishment of the land, and, on the same day, Sydna Bender,
the defendant in this cause, made homestead entry.
July 25, 1893, Sarah E. Doyle, the plaintiff herein, filed her affidavit
of contest against the entry of Miss Bender, alleging that she was the
deserted wife of Samuel Doyle, who made entry September 28, 1891, for
the land in dispute, and that she had been residing upon the land for a
period long antedating the relinquishment by her husband.
A hearing was had to determine the rights of the parties and, there-
after, on June 6, 1895, the local officers rendered their decision, sustain-
ing the contest and recommending the cancellation of the defendant's
entry.
Upon appeal, your office decision of February 17, 1896, was made,
affirming the action below. Further appeal brings the case to the
Department.
An examination has been made of the rather voluminous record in
the case — the greater portion of which is foreign to the issue joined —
and it appears that on June 16, 1893, Samuel Doyle, the original entry-
man and husband of this plaintiff, left his house upon this land with
the twofold determination of selling his claim and of deserting his wife.
It is apparent from the record that this plaintiff had no notice of this
intention upon his part, and such negotiations as had transpired
between him and the representative of the Benders, had been carefully
kept from her. The sale was consummated, the purchase price agreed
upon being five hundred dollars.
536 DECISIONS RELATING TO THE PUBLIC LANDS.
•
There is nothing to show that this defendant knew that these &ct8
were being kept from Mrs. Doyle, bat it is evident that she took no
steps to briog the matter to the plaintifiTs attention. When the defend
ant went upon the laud, after her purchase of the improvements (>f
Doyle and before she invested more mouey on the land, it appears that
Mrs. Doyle told her that she would assert. claim to the land and warned
her to take no steps in the way of improving the same. Despite this
notice, the defendant built a valuable house upon the land and put
other improvements thereon amounting, together with the money paid
for the relinquishment, to a considerable sum.
At the time this relinquishment was made by the husband of this
plaintiff, she was living in their home upon the land having improve-
ments amounting to six or seven hundred dollars. She was at such
time a deserted wife, with the right of entry, and an actual settler upon
the land. As such qualified settler her rights attached the instant the
relinquishment was filed, and were superior to those gained by the
defendant under her entry. Ux parte Sarah E. Pierce, 1 L. D., 59;
Kamanski r. Kiggs, 9 L. D., 186; and Tyler r. Emde, 12 L. D., 94.
I am, therefore, of opinion that the decision appealed from is correct,
and it is affirmed.
REPAYMENT— DESERT LAKB ENTRY.
Christopher W. McKelvby.
A final decision nnder which a tlesert land entry is canceled, on account of the non-
desert character of the land, can not be impeached collateraUy on applicatiou
for repay men t.
Repayment of the money paid on a desert land entry can not be made, where such
entry is properly allowed on the proofs presented, bnt, on sabse<|uent proceed-
ings, is caiiceled on account of the non-desert character of the land.
Seiretary Bliss to the Commissioner of the General Land Office^ June 17,
(W. V. D.) li:^97. (J. L.)
Christopher W. McKelvey filed in your office an application bearing
date October 31, 1896, for repayment of 8160 paid by him on March 25,
1887, upon makiug desert land entry No. 327 of the whole of Section
20, T. 9 N., li. 14 W., San Bernardino meridian, Los Angeles land dis-
trict, California.
By letter *' II " of January 21, 1890, your office canceled said entry
*< because it was found that the land included in said entry would pro-
duce all kinds of grain without artificial irrigation." While the sworn
declaration of McKelvey and the affidavits of bis two witnesses tiled
March 25, 1887, had alleged " that this land is desert land within the
meaning of the act of March 3, 1877; and that said land will not, with-
out artificial irrigation, i)roduce any agricultural crop."
On December 10, 1890, your office denied McKelvey's applicatiou for
repayment, saying that, "the law governing the return of porcbase
DECISIOKtt EE LATINO TO THE PUBLIC LANDS. 537
money (Section 2 of the act of June 16, 1880, 21 Stat., 287) does not
apply to land of this character." McKelvey appealed to this Depart-
ment.
The statute in question authorizes repayment only where the entry
has been ^^ canceled for conflict, or where, from any cause, the entry has
been erroneously allowed and cannot be confirmed.'^
Your office decision of January 21, 1890, held that the land was not
desert in character, and, therefore, that the entry thereof under the
desert land act was wrongfully obtained. That decision is final and
cannot be impeached collaterally by means of an application for repay-
ment of money.
McKelvey 's desert land entry was not "erroneously allowed." Upon
the showing made by McKelvey and his witnesses in 1887, the local
officers were bound by law to allow the entry. They would have erred
if they had not allowed it. The entry was based upon McKelvey's
allegation that the land was desert in character. The subsequent pro-
ceedings developed that the land was not desert in character, and that
it would produce agricultural crops without artificial irrigation. This
demonstrated that the entry was wrongfally obtained by the entryr
man, but it fell far short of demonstrating that the entry was " erro-
neously allowed" by the officers of the land department. They acted
upon the proof presented by the entryman. The proofs presented
required the allowance of the entry. The error in the transaction was
in the presentiug of such proof by the entryman, and not in the action
thereon by the land office.
In the case of Thomas Guineau, 9 Gopp's Land Owner, 153-154, on
May 9, 1881, Secretary Kirkwood said :
The entry was good and valid upon the showing made by the party seeking it,
sworn to by him and corroborated by those whom he had selected as his witnesses.
If trne, his allegations entitled him to an entry, and it would have been error to
refuse his application. Consequently it was not error to accept it, and the entry
was not erroneously allowed. Afterwards, it is true, he attempted to prove his alle-
gations; but they were overwhelmingly refuted by the testimony taken by the gov-
ernment; and the finding of my predecessor was that the application was made 'Mn
fraud of the law/' It is in eifect the same as a similar finding upon default of answer
when cited for hearing ; the only difference being that in one case the fact is taken
as admitted, in the other it is established by testimony.
In the case of James E. Eoyce, 10 G. L. O., 25, on March 26, 1883,
Secretary Teller said :
In such cases the Department has invariably held that if there was no error on the
part of the United States, or if the proof showed compliance with the legal require-
ments at the date of the entry, and the entry had been canceled because the proofs
were false, the entry could not be regarded as having l>een erroneously allowed, nor
could repayment be authorized.
In the case of John Garland, 9 G. L. O., 1G8, and 1 L. D., 531,
Secretary Teller said :
It appears that Car] and, an officer in the army of the United States, made said
entry under the supposition that the homestead laws did not require his residence
588 DECISIONS RELATING TO THE PUBLIC LANDS.
on the tract. On being advised of his mistake, he volontarily abandoned the entry,
and now applies for repay men t of the fees and commissions. . . . The entry was
not erroneously allowed, and might have been confirmed. As there has been no faalt
or error on the part of the government, this Department is without authority in the
matter.
In the case of William B. Creary, 2 L. D., 694, Secretary Teller said:
These affidavits do not support applicant's allegation that the government is
responsible for his error. Thoy show as you suggest that an erroneons aarvey hy
the Gila Bend Canal Company, and not any mistake in the goremment survey, le«l
applicant and others to purchiise particular lands.
Had the mistake resulted from any erroneons action on the part of the govern-
ment, then clearly the act of June 16, 1880, would afford the relief desired.
On the facts as they appear however, while there seems to be an equity in £ftvor of
the applicant, I am unable to find in the law anything which wonld authorize
repayment as asked. . . . The words 'erroneously allowed' clearly refer to an
act of the government.
The statate does not aatborize the repayment of purchase money in
this case.
Yoar office decision is hereby affirmed.
REPAYMENT-PAYMENT IN CASH ANB BY WARRANT,
Sylvester Kipp et al.
The statutes providing for repayment contemplate only the return of money actually
paid, and where land is paid for in part by cash, and in part by a military bountT
land warrant, the Secretary of the Interior has no authority, in allowing repay-
ment, to draw his warrant upon the Treasury for a sum larger than the cash
payment made by the entry man.
Secretary Bliss to the Commissioner of the General Land Office^ June 17,
(W. Y. D.) 1897. (J. L.)
Your letter "M" of April 6,1897, enclosing two letters from the
Auditor for the Interior Department, dated March 29, 1897 and May
7, 1896, respectively, in relation to the joint application of Sylvester
Kipp and Orrin Kipp for repayment of the sum of $40.47, has heen
received.
It appears that on April 26, 1866, George Harris made cash entry
No. 2654 of the N W. J of the FE. J and the K J of the NW. i of section
1, T. 42 N., E. 30 W., St. Cloud land district, Minnesota, containing
90.23 acres of land at $1.25 per acre, aggregating $112.92. Harris paid
for said land $100 with a Eevolutionary bounty land warrant No. 11.287
issued to 0. Whitney, and $12.92 with money. By quit claim deed
dated September 24, 1883, and recorded December 30, 1885, Harris for
an alleged consideration of $400, conveyed to Sylvester Kipp and Orrin
Kipp the NW. J of the NE. J of section 1 aforesaid, containing 32.38
acres of land. By letter "F" of May 11, 1895, your office canceled the
whole of Harris's entry, "because of conflict with the prior grant to the
Western Railroad Company."
DECISIONS RELATING TO THE PUBLIC LANDS. 539
Therefore it appears, that said land was " erroneously sold by the
United States," and that Harris's entry was " erroneously allowed,'^
and that '< the sale cannot be confirmed^" and that, by virtue of section
2362 of the Revised Statutes, and the second section of the act of June
16, 1880 (21 Statutes 287), the money paid for said land must be repaid
to said George Harris, or "to his legal representatives or assignees" or
'*to his heirs or assigns," out of any money in the Treasury not other-
wise appropriated. By letter " M " of February 15, 1897, your office
decided that the sum of $40.47, the vahie of 32.38 acres of land at $1.25
per acre, should be paid to Sylvester and Orrin Kipp jointly; and on
February 23, 1897, First Assistant Secretary Sims certified that the
evidence of the illegality of the sale was satisfactory.
The question presented by your letter and by the Auditor for my con-
sideration is: Whether under the statutes above referred to, the Secre-
tary of the Interior has authority to '* draw his warrant on the Treasury,"
for a sum of money larger than the amount of money actually paid by
the entrymant
Independent of any statutory provisions on the subject, if a land war-
rant for one hundred and sixty acres were given in exchange for a final
receipt and certificate on an entry of one hundred and sixty acres, and
the entry should subsequently be canceled without fault of the entry-
man, because the laud had been "erroneously sold," or "for conflict",
or because the entry was "erroneously allowed", the Commissioner of
the General Land Office would return to the entryman his land warrant;
or if the original had been mutilated by cancellation, the Commissioner
would tender a copy of it, with a certificate attached, stating the facts,
and endowing the copy with all the value and usefulness of the original.
This would be done upon the ground that the warrant had not been
used; that the attempt to use it had failed; that it had not been satis-
fied, and was still the property of the disappointed entryman in full
force and effect. This transaction would be an act of natural justice
and equity, so simple and plain, that an act of Congress would not be
necessary to make it lawful.
If the entryman had given his one hundred and sixty acre warrant
in exchange for a one hundred and twenty acre, he would (upon the
cancellation of his entry as aforesaid), receive from the Commissioner
his original warrant for the larger quantity of land. If the entryman
had purchased his one hundred and twenty acre entry by paying $100
in money and $100 with an eighty acre land warrant, the Commissioner
would return the land warrant, and advise the entryman that he had
no authority under the law to repay his $100 paid in money. The
Constitution provides that " no money shall be drawn from the Treasury,
but in consequence of appropriations made by law " (Article 1, sec-
tion 9). Hence explicit acts of Congress were necessary to authorize
the repayment of moneys once paid into the Treasury. Yet the moral
and equitable right of the entryman to his $100 in money, was the
same as his right to his land warrant.
540 DECISIONS RELATING TO THE PUBLIC LANDS.
To remedy this mischief, Googreas, on January 12, 1825 (4 Statutes
80), enacted:
That every person, or the legal repreaentative of every person , who is or may be, a
purchaser of a tract of land from the United Stat-es, the purchase whereof ia or mav be
void, by reason of a prior aale thereof by the United States or by the confirmation
or other legal establishment of a prior British, French or Spanish grant thereof or
for want of title thereto in the United States from any other cause whatsoever, shall
be entitled to repayment of any sum or sums of money paid for or on account of
such tract of land, on making proof to the Secretary of the Treasury that the same
was erroneously sold in manner aforesaid by the United States, who is hereby author-
ized and required to repay such sum or sums of money paid as aforesaid.
In the year 1825 there were no general pre-emption, homestead,
desert-laud, or timber culture laws, and the act above quoted seems
to have provided a perfect and exhaustive remedy for the mischief as
it then existed.
On February 28, 1859 (11 Statutes 387), Congress enacted:
That the act of Congress, ''authorizing repayment for lands erroneously sold by
the United States,'^ approved January 12, 1825, be and the same is hereby amended
so as to authorize the Secretary of the Interior, upon proof being made to his sati^^
faction, that any tract of land has been erroneously sold by the United States so that
from any cause whatever the sale cannot be confirmed, to repay to the purchaser or
purchasers, or to the legal representatives or aasignee^of the purchaser or purchasers
thereof, the sum or sums of money which may have been paid therefor, out of any
money in the Treasury not otherwise appropriated.
These two acts were consolidated in the Revised Statutes as follows:
Section 2362. The Secretary of the Interior is authorized, upon proof being miMle
to his satisfaction, that any tract of land has been erroneously sold by the'Unitf^d
States so that from any cauHe the sale cannot be confirmed, to repay to the pnr-
chaser or to his legal representatives or assignees, the sum of money which was paid
therefor, out of any money in the Treasury not otherwise appropriated.
And under the head of Permanent Annual Appropriations in the
Bevised Statutes, by section 3689 (page 728), Congress appropriates
such sums as may be necessary "to pay to the purchaser or purchas-
ers the sum or sums of money received for lands erroneously sold by
the United States."
In all of said statutes the authority of the Secretary is limited to the
repayment or refunding of money paid.
The act of June 16, 1880 (21 Stat., 287), is entitled:
An act for the relief of ccrt'aiu settlers on the public lands, and to provide for tbe
repayment of certain fees, purchase money and commissions paid on void entries of
public lands.
Sections 2, 3, and 4 of said act read as follows:
Sec. 2. In all cases where homestead or timber culture or desert land entries or
other entries of public lands have heretofore or shall hereafter be canceled for con-
flict or where from any cause the eutry has been erroneously allowed and cannot he
confirmed, the Secretary of the Interior shall cause to be repaid to the person who
made such entry, or to his heirs or assigns the fees and commissions, amount of piir-
chase money and ex messes paid upon the same, upon the surrender of the duplicate
DECISIONS RELATING TO THE PUBLIC LANDS. 541
receipt and the execntiou of a proper relinqnisbment of all claims to said land,
wbeuever snch entry shall hare been duly canceled by the Commissioner of the
General Land Office; and in all cases where parties have paid double-minimum
price for land which had afterwards been found not to be within the limits of a
railroad grant, the excess of one dollar and twenty-tive cents per acre shall in like
uianner be repaid to the purchaser thereof, or to his heirs or assigns.
Sec. 3. The Secretary of the Interior is authorized to make the payments herein
provided for, out of any money in the Treasury not otherwise appropriated.
Sec. 4. The Commissioner of the General Land Office shall make all necessary
rales and issue all necessary instructions to carry the provisions of this act into
effect; and for the repayment of the purchase money and fees herein provided for,
the Secretary of the Interior shall draw his warrant on the Treasury, and the same
shall be paid without regard to the date of the cancellation of the entries.
The manifest intention of this act was to extend to entrymen under
the homestead, timber- culture, desert-land and other laws, the same
remedy that had been provided by former statutes for cash entrymen
under the laws relating to public and private land sales. The terms
of the act limit the authority of the Secretary of the Interior to the
repayment or refunding of moneys actually paid to the officers of the
government. Under the 4th section of the act, the Secretary can draw
his warrant on the Treasury for the repayment of purchase money and
fees paid with money, and for nothing else.
In the case of the application of Sylvester and Orrin Kipp for repay-
ment now before us, First Assistant Secretary Sims, on February 23,
1897, decided that the evidence of the illegality of the sale made to
George Harris on April 26, 1866, was satisfactory, and referred said
application for repayment to your office for settlement. The fact that
Harris's entry was canceled for conflict with a prior railroad grant, is
proof that the laud (which contained 90.23 acres in two lots or subdivi-
sions and was of the value of 8112.92), was " erroneously sold." But it
appears that the government received therefor, a Revolutionary bounty
land warrant No. 11,287 for eighty acres of land valued at $100, and
which is now under the control of your office, and only $12.92 in money
which was paid into the Treasury. I am constrained to hold that the
Secretary of the Interior has no authority in this case to draw his war-
rant upon the Treasury for more than $12.92, and that the application
of Sylvester and Orrin Kipp for the repayment in money of the sum
of $40.47, the estimated value of 32.38 acres contained in one of the
subdivisions of the land erroneously sold to Harris, must be and the
same is hereby denied.
There is no evidence before me tending to show whether George
Harris is living or dead; or what disposition has been made by him of
the 57.85 acres of land contained in the other sub-division included in
Harris's purchase, which was made more than thirty-one years ago.
Harris, if alive, or "his personal representatives or assignees" or "his
heirs or assigns," if he be dead, are interested in the subject matter
involved in the application now before me, and they should be made
parties thereto, in order that their rights may be adjudicated, and that
542 DECISIONS RELATING TO THE PUBLIC LANDS.
the Department may know to whom it may with safety and propriety
return the bounty land warrant, and issue a warrant for the $12.92 in
money.
Your office will cause Christopher Kipp and Orrin Kipp to be notified
of this decision, and advise them that it is made without prejudice to
any other application they may hereafter make in connection with the
other parties interested as above indicated, and in accordance witL
the opinions herein expressed.
REPAYMENT-DESERT LAND ENTRY-RELIXQUISHMENT.
Lucy C. Hallack.
A desert land entryman who fails to reclaim part of the land embraced within hit
entry, aud thereupon relinqnisbes sach tract, is not entitled to repayment of the
money paid on the tract so relinqnished.
Secretary Bliss to the Commissioner of the General Land Office^ June 17,
(W. y. D.) 1897. (W, M. W.)
The appeal of Lucy C. Hallack from your office decision of March 6,
1890, denying her application for repayment of purchase money paid
on the SE. \ of Sec. 23, said tract being a portion of desert entry No.
60 for the SE. \ of Sec. 23 and the SW. J of Sec. 24, T. 22 S., B. 43 W.,
Lamar, Colorado, land district, has been considered.
This application for repayment is controlled by section 2, of the act
of June IQ^ 1880 (21 Stat., 287), which provides—
In all cases vrUere .... desert land entries .... of public lands have hereto-
fore or shall hereafter be canceled for conflict, or where, from any canse, the entn-
has been erroneously allowed and cannot be confirmed, the Secretary of the Interior,
shall cause to be repaid to the person who made such en try , or to his heirs or assiji^,
the fees and commissions, amount of purchase money, and excesses paid upon the
same, upon the surrender of the duplicate receipt and the execution of a proper
relintiuishment of all claims to said land.
The conditions upon which the Secretary of the Interior is thus
authorized to cause such repayment to be made are expressly and clearly
named in the statute, and thereby repayment upon any conditions other
than those so named, is excluded. The conditions named are: Firsti
where the entry has been canceled for conflict; and Second, where the
entry has been erroneously allowed and cannot be confirmed. In this
case it is not, and cannot be, contended that the entry was canceled for
conflict, and it is not, and cannot be, contended that the entry was
erroneously allowed.
The land was subject to entry and was regularly entered. No error
or mistake of any kind, with respect to the entry, was made on the part
of the government. If any error or mistake was made, it was simply an
error of judgment on the part of the entryman, as to whether the por-
tion of the entry afterwards canceled, could be reasonably and success
DECISIONS RELATING TO THE PUBLIC LANDS. 543
fully reclaimed. The land embraced by the entry was voluntarily
selected by the entryman, but failinji^ to reclaim a portion of the
entry, she executed a relinquishment of that portion and, hence, the
cancellation.
The decision appealed from is affirmed.
batlboad grant-selections— act of january 18, 1801.
Southern Pacific E. E. Co.
Id the exchange of lands, provided for in the act of January 12, 1891, between the
United States and the Soathern Pacific railroad company, the company should
file a relinqaishment of the lands in lieu of which it proposes to make selections,
and present to the local office a formal application to select the lieu lands, as
duly listed for such purpose, and pay the statutory listing fees on the selections
so made.
Secretary Bliss to the Commissioner of the General Land Office, June 17 ^
( W. V. D.) 1897. (P. J. C.)
I am in receipt of your office letter (F) of April 30, 1897, in reference
to the exchange of lands as provided for by the act of Jannary 12,
1891, (26 Stat., 712) between the United States and the Southern
Pacific Eailroad Compauy. It appears from your office letter that
there now exists no reason shown by the records of your office why the
tracts selected by the railroad company in lieu of those surrendered,
which are within the primary limits of its grant, may not be patented
to the company, and your office asks to be advised
whether or not the company shaU be required to formally list them and to present
this list at the district land office the same as it would do were it to perfect its claim
to the lands relinquished. And in the event you decided that this should be done,
whether or not the district land officers are entitled to the usual fee for final locations
of granted lands.
The act of January 12, authorizes the appointment of Commissioners
to select a reservation for the Mission Indians, and provided that in case
any land shall be selected under this act to which any railroad company is or shall
hereafter be entitled to receive a patent, such railroad company shall, upon releas-
ing all claim and title thereto, and on the approval of the President and Secretary
of the Interior, be allowed to select an equal quantity of other land of like value in
lien thereof, at such place as the Secretary of the Interior shall determine.
In pursuance of this act the Commissioners selected certain lands
within the primary limits of the grant to the Southern Pacific Railroad
Company for the Morongo reservation, which the company agree to
relinquish and in lieu thereof selected an equal amount of other lands.
The President of the United States and the Secretary of the Interior
on December 29, 1891, approved the report of the Commissioners with
an exception that is not material to this issue, and withdrew the lands
awarded the Indians from settlement. The final adjustment of the
matter so far as the railroad company is concerned seems to have been
544 DECISIONS RELATING TO THE PUBLIC LANDS.
delayed because the land selected by it had to be surveyed and also
because of a protest as to one of the tracts selected. These matters
haying been disposed of there seems to be no obstacle in the ^ay now of
closing the matter up, so far as disclosed by the records of your office.
I do not understand that the approval by the President and Secre-
tary of the Interior of December 29, 1891, went to the extent of approv-
ing the selections made by the company, but only approved the report
of the Commissioners as to its selection for the benefit of the Indians.
Hence the contention of counsel that there has been an official approval
of the company's selection is not tenable.
It is stated in your office letter subnitting this question:
In view of the n amber of exchanges of this character contemplated it is ImportaDt^
I think, that the manner of effecting them shonld be determined at the outset.
The orderly way in which all selections or listing of lands under a
grant are made is for the company to present at the local office a formal
application to make the same. The local officers approve this as a clear
list, or refuse to do so, as the case may be, being guided entirely by
their own records. It is not at all improbable that their records may
disclose some objection to the approval of the application that is not
shown by the records of your office. If the record in the local office be
clear the list is approved, notations made on the proper records and
then forwarded to your office where it is again examined and finally
acted on. Thus there is a complete record made in a formal manner
that renders it easy totrace for all time the transaction in its entirety.
It seems to me that any other course than the regular one deftneil
would lead to confusion and might prove embarrassing. Suppose, fur
instance, your office on the record as it now stands, should issue the
patent for these lands, and it should be discovered that there was a
valid claim to any part of them initiated under the land laws and shown
by the records of the local office ? Such a condition would tend to
work a serious injustice to innocent persons, and siiould be avoided.
There is no way to avoid it except to pursue the regular course pro-
vided by your office rules in such matters.
It seems to be contemplated by the act of Congress quoted above
that the railroad company shall before making the selections provided
for, file its relinquishment for the lands surrendered. It is therefore
apparent that the company should file its relinquishment either in your
office, before applying for the selections, or tender it with its applica-
tion in the local office.
Section 2238 of the Revised Statutes provides that ** registers and
receivers, in addition to their salaries, shall be allowed each the follow-
ing fees and commissions, namely:" By the seventh paragraph it is
enacted:
In the location of lands by States and corporations under grants from Congress for
railroads and other purposes (except for agricultural colleges) a fee of one dollar for
each location of one hundred and sixty acres) to be paid by the State or corporation
making such location.
DECISIONS RELATING TO THE PUBLIC LANDS. 545
If it is necessary that the selection should be made by formal applica-
tion in the local office, it follows that the statutory fee must be paid.
The payment of these fees works no hardship on the company in this
case. They are required to be paid in all cases of lands ^^listed", that
is, lands within the primary limits of a grant, as well as in cases of
land ^< selected" as indemnity. In the case at bar the company has
paid no listing fees on account of the lands surrendered, and in paying
the fees on the lieu lands it will do no more than it would have been
required to do if the exchange had never been made. Therefore no
additional requirement and no inconvenience will be imposed by the
enforcement of the rule.
It is understood that it has been the universal rule in the administra-
tion of the act of June 22, 1874 (18 Stat, 194), which is in all material
respects similar to the act of July 12, 1891, to require the payment of
fees on account of lands selected under that act in pursuance of the
provisions of section 2238 of the Revised Statutes. If the provisions
are applicable to the act of 1874, they are equally so to the act under
consideration. The statute is mandatory, as I view it, and its terms
cannot be avoided.
In connection with the subject of this decision the attention of your
office is directed to the act of July 31, 1876 (19 Stat, 121) ; the decision
of the Department in the case of St Paul, Minneapolis and Manitoba
Ry. Co. (20 L. D., 22), and of the supreme court in Pacific Ry. Co. v.
United States (124 U. S., 124).
In the adjustment of this matter you are directed to proceed as
herein indicated.
ALASKAN liAXDS-SURVEY-APPLICATION*
Central Alaska Company.
In the SQTvey of Alaskan land desired for a fishing station, under the provisions of
section 12, act of March 3, 1891, a failure to observe the requirement that the
land shaU be taken as near as practicable in a square form, will not be excused
on the ground that the land excluded is valueless for fishing purposes.
Surveys under said section are not authorized in the absence of a formal application
therefor, verified by afiidavit, showing the character, extent, and approximate
value of the improvements oivued by the claimant.
Secretary Bliss to the Commissioner of the General Land Office^ June 17^
(W. V. D.) 1897. (W. M. B.)
The Central Alaska Company, an alleged corporation, appeals from
your office decision of May 14, 1895, rejecting survey No. 118, executed
August 11, and 12, 1893, under sections 12 and 13, act of March 3, 1891
(26 Stat, 1095), by Albert Lascy, U. S. deputy surveyor, including a
tract of land containing an area of 38,52 acres, situate near Five Mile
10671— VOL 24 35
546 DECISIONS RELATING TO THE PUBLIC LANDS.
•point, known aa Northeast Harbor, on the coast of Kadiak Island, dis-
ttrict of Alaska, and used during the fishing season as a fishing station.
In the decision appealed from it is stated that the sarvej was
•rejected, —
>for the reason that the land claimed is not occupied with such permanent improre-
rmentfl as evidence sacb a business as is contemplated by law, and becanse the tract
ds not as near as practicable in square form.
"The plat shows that the tract embraced in the survey is a long narrow
«trip of land, the length of the shore or meandered line thereof being
ten times greater than the width of the tract at several points.
The deputy, under the head of explanations attached to his return of
this survey, states that the survey was completed before receipt by
him of the ex officio surveyor-general's letter of July 8, 1893, informing
him that these surveys should not be executed except under 6x>ecial
instructions, and states further that the survey was made under general
printed instructions of March 17, 1892. The referred to instructions
were issued more than sixteen months before the field work upon this
survey was commenced. The survey, however, was not executed in
conformity with said general instructions, which among other things
directed deputy surveyors engaged in making this class of surveys
to ^< conform to said act of March 3, 1891, and .... regulations there-
under dated June 3, 1891."
Section 12 of the act of March 3, 1891, required that lands sought to
be entered thereunder should be ^< taken as near as practicable in a
«quare form,'^ and paragraph 13 of the regulations of June 3, 1891 (12
L. D., 583), prescribed that:
The land to be surveyed, .... must be in one compact body and as nearly in
•square form as the circumstances and configuration of the land will admit.
The attorney for claimants contends that:
The form of the survey is as near as practicable in square form, without inclading
valueless mountain land of no benefit to claimant for the purposes of fishing.
It appears from the plat that more than four fifths of the area
embraced in the survey in its present or existing form is mountainous
laud, there being only a narrow strip of land, about one chain in width,
between the meandered coast line and the foot of the mountain, which
extends almost the entire length of the survey.
There appears to be no reason why the front or meandered coast line
of the survey which is 67.30 chs. in length should not have been
shortened and the survey extended inland and made in square form
as required by law and regulations. The configuration of the land
would admit of a survey in such form.
There is no statutory provision which excludes mountainous lands
from the area embraced in these surveys — ^where such mountainoas
lands do not contain coal or the precious metals — and the failure to fol-
low the requirements of law and regulations as to "square form '^ in
*he execution of said surveys will not be excused upon the ground
DECISIONS RELATING TO THE PUBLIC LANDS. 547
that the exclusion of such lands is proper because tbey are valueless
for fishing purposes.
In prescribing that these lands should be <^ taken as near as practi-
cable in a square form" it was evidently the intention of Congress to
require purchasers and entrymen to take some of the less valuable
lands lying along the interior or back lines of the surveys together
with the more valuable lands lying adjacent to the water or meandered
shore line of the surveys, which would prevent purchasers from entering
long narrow strips of land, and thereby secure an exclusive monoply of
extended coast lines and of the more valuable lands bordering thereon.
In most instances deputy surveyors state in their returns that these
non-mineral lauds are valueless except for fishing and cannery pur*
poses, and there appears to be no reason why there should not be
included in those portions of the surveys lying back from the water
valueless mountain lands as well as level lands which are valueless for
fishing purposes.
If this survey was objectionable in no other particular than those
above mentioned it might be suspended with the right of amendment,
but there appear to be reasons why it should be wholly rejected.
With reference to the improvements upon and occupancy of the land
claimed, the deputy makes the followiug statement:
The improvemeDts consist of the four large barrabarries on the right bank of the
creeky and the different barrabarries and sheds along the beach ae designated on the
plat, valued at $200.00.
The claimant is in possession and has used the place for several years as a station
dnring the lishing season.
The record fails to show that an application was made to the ex officio
surveyor-general for this survey wherein *Hhe character, extent, and
approximate value of the improvements" alleged to be owned by
claimants are required to be shown by verified affidavit prior to the
execution of said surveys, as is directed to be done by paragraph one
of the regulations of June 3, 1891. It would appear that the survey
was made without such application, since the entire deposit for the cost
of the survey was made subsequent to the completion of the field work.
Surveys and deposits made in such manner are not authorized by law
or regulations.
The record does not show whether the improvements upon the land
included in the survey were placed there by claimants or whether they
were made by others. Though the claimants, as stated by the deputy,
have for several years been using the tract in question as a fishing
ground or station, during a portion of each year, it does not appear
that they had, up to the time of the survey, placed thereon improve-
ments of such character and value as would indicate permanent occu-
pation of the land for the purpose designated in section 12 of the act
of March 3, 1891.
For the foregoing reasons the decision of your office rejecting survey
]So. 118 is hereby affirmed.
J
548 DECISIONS RELATING TO THE PUBLIC LANDS.
CIRCXTI,AR PRESCRIBING RULES AN1> REGULATIONS FOR MAKING
SELECTIONS OF L.AND IN THE STATES OF MONTANA, NORTH DAKOTA,
SOUTH DAKOTA, AND WASHINGTON, UNDER THE GRANTS TO SAIB
STATES.*
Department of the Interior,
General Land Office,
Washington^ D. C, May ^, 1891.
The Registers and the Receivers of U. 8. Land Offices
in Montana, North Dakotn^ South Dakota, and Washington,
Gentlemen: The following rules and regalations are presccibed for
making selections of land in the States of Montana, North Dakota,
South Dakota, and Washington, under the provisions of the nets of
Congress of February 22, 1889 (25 U. S. Stat., 676), entitled "An act to
provide for the division of Dakota into two States and to enable the
people of North Dakota, South Dakota, Montana, and Washington to
form constitutions and State governments and to be admitted into the
Union on an equal footing with the original States, and to make d<»na-
tiona of public lands to such States," and of February 28, 1891 (U. S.
Stat., 5l8t Cong., Sess. II, p. 796), entitled "An act to amend sections
twenty two hundred and soventy-flve and twenty-two hundred and
seventy-six of the Kevised Statutes of the United States providing
for the selection of lauds for educational purposes in lieu of those
appropriated for other purposes."
Section 10 of the act of February 22, 1889, provides:
That upou the admissiou of each of said States into the Union sections numbered
sixteen .and thirty-six in every township .... and 'W'bere such sections, or any parts
thereof, have been sold or otherwise disposed of by or under the anthority of any act
of Congress, other lands equivalent thereto, in legal subdivisions of not less than one-
quarter section, and as contiguous as may be to the section in lieu of which the same
is talien, are hereby granted to said States for the support of common schools, such
indemnity lauds to be selected within said States in such manner as the legislature
may provide, with the approval of the Secretary of the Interior.
Said sectiou contains the following proviso:
That the sixteenth and thirty-sixth sections embraced in permanent reservations
for national purposes shall not, at any time, be subject to the grants nor to the
indemnity provisions of this act, nor shall any lands embraced in Indian, military,
or other reservations of any character be subject to the grants or to the indemnity
provisions of this act until the reservation shall have been extinguished and sach
lands be restored to, and become a part of, the public domain.
Section 11 relates to the sale and leasing of the lands granted in the
sections 16 and 36, and provides:
And such land shall not be subject to pre-emption, homestead entry, or any other
entry under the land laws of the United States, whether surveyed or unaurveved,
but shall be reserved for school purposes only.
The proviso to section 10, and the portion of section 11, above cited,
in so far as they are in conflict with sections 2275 and 2276, Revised
• V
Not heretofore reported.
DECISIONS RELATING TO THE PUBLIC LANDS. 549
Statutes of the United States, as amended by the act of February 28,
1S91, are superseded by the provisions of said amended sections, and
the grant of school lands provided for in the act of February 22, 1889,
should be administered and adjusted in accordance \vitli the later legis-
lation, (12 L. D., 400).
Section 2275,Bevised Statutes, as amended by the act of February 28
1891, grants to the several States and Territories as indemnity for sec-
tions 10 and 36, lands of equal acreage with those lost, to be selected
anywhere within the State or Territory where sucli losses occur, in the
following cases, viz:
1. Where sections 16 or 36, or any portions thereof, have been settled
upon prior to survey, under the provisions of the pre-emption or home-
stead law.
2. Where such sections are mineral lands, or are included within any
Indian, military, or other reservation, or are otherwise disposed of by
the United States.
3. Where sections 16 or 36 are fractional in quantity, or where one
or both are wanting by reason of the township being fractional, or from
any natural cause whatever.
Section 2275 contains the following provisos:
Where any State is entitled to Bald sections sixteen and thirty-six, or where said
Bections are reserved to any Territory, notwithstanding the same may be mineral
land or embraced within a military, Indian, or other reservation, the selection of such
lands in lien thereof by said State or Territory shall be a waiver of its right to said
sections. It is also provided: That nothing herein contained shall prevent any State
or Territory from awaiting the extingtpishment of any sneh military, Indian, or other
reservation and the restoration of the lands therein embraced to the public domain
and then taking the sections sixteen and thirty-six in place therein ; but nothing in
this proviso shall be construed as conferring any right not now existing.
Said section fiirther provides:
And it shall be the duty of the Secretary of the Interior, without awaiting the
extension of the public surveys, to ascertain and determine, by protraction or other-
wise, the number of townships that will be included within such Indian, military ,
or other reservations, and thereupon the State or Territory shall be entitled to select
indemnity lands to the extent of two sections for each of said townships, in lieu of
sections sixteen and thirty-six therein ; but such selections may not be made within
the boundaries of said reservations.
Section 18 of the act of February 22, 1889, relates to mineral lands,
and to indemnity for sections 16 and 36 found to be mineral. This class
of indemnity is also provided in the later general act above referred to,
and instructions in relation thereto will be found on page 4 of this
circular.
Section 19 of the act of February 22, 1889, provides:
That all lands granted in quantity or as indemnity by this act shall be selected,
under the direction of the Secretary of the Interior, from the surveyed, unreserved,
and unappropriated public lands of the United States within the limits of the
respective Stiites entitled thereto. And there shall be deducted from the number of
acres <^f land donated by this act for specific objects to said States the uumber of
acres in each heretofore donated by Congress to said Territories for similar objects.
550 DECISIONS RELATING TO THE PUBLIC LANDS.
1. Under the provisions of the foregoing acts where either of the sec-
tions 16 or 36, or any parts thereof, have been sold or otherwise disposed
of in the manner indicated above, the State will be entitled to select an
eqnal quantity of land in lien thereof. The selections mnst be made of
surveyed agricultural, non-mineral lands, in legal subdivisions, accord-
ing to the approved township plats on file at the time.
2. The selections should be made by the Governor or by any agCDt
duly appointed, acting under the authority of the legislature of the State,
evidence of whose right so to act must be filed in the local offices and
in this office.
3. The law allows selections to be made of surveyed lands, whetLer
offered or unoffered; but no selection is admissible of lands to which a
valid preemption or other claim shall be legally established, nor of any
land which is, or may be, reserved firom sale by any law of Congress, or
proclamation of the President of the United StateS; nor of land which
is reserved or withdrawn from market for any purpose, nor of mineral
land. The character of the selected lands will be determined under the
rules existing as to agricultural land entries. In all cases the selected
tracts must be covered by non-mineral affidavits made by the duly
appointed selecting agent, or by an agent appointed by the selecting
agent for the purpose, and if by the latter, evidence of his appointment
should accompany the affidavits.
4. The lists of selections under the several grants should have a
regular, but separate and distinct, series of numbers commencing with
number one. In thecase of school-land indemnity selections, the selected
tracts on the one side must be connected with specific bases of exactly
the same quantity on the other side. Kespecting the method of so
balancing the selections, you are referred to the circular letter from this
office of July 29, 1887, page 124 of the Commissioner's annual report for
18S7, which was sanctioned by the Department in the case of Melviit,
et al. V. California (6 L.D., 702), and is now applicable to your districts.
5. In presenting selections of indemnity lands, based on sections sis-
teen and thirty-six, or portions thereof, found upon survey to be in the
occupancy and covered by the improvements of an actual preemption
or homestead settler, whose settlement was made before the survey of
the land in the field, the State may proceed in one of two ways to have
its rights defined:
First By proving such occupation at the date of survey, and up to
the time of the selection, by the testimony of at least two respectable
disinterested witnesses. In such instances the qualifications of the
alleged pre-emptor or homesteader must be shown, and also the occn-
pancy and improvements as to each subdivision used as the basis oi
selection.
Second, By relying on the proofs of pre-emption and homestead settlers
claiming by virtue of settlement prior to survey, after entry by them.
DECISIONS RELATING TO THE PUBLIC LANDS. 561
The validity of such basis of selection would depend upon the establish-
ment of the fact of such settlement before this Department.
6. In making selections founded on deficiencies in the school sections
the bases should be carefully described in the list of selections, by sub-
divisions, section, township and range, or by fractional townships, where
tlie school sections are entirely wanting.
7. The language of the law is plain as to the quantity of indemnity
lands that may be selected in lieu of mineral lands upon a determina*^
tion of their mineral character, and respecting such determination the
following is prescribed:
First. A determination by the Secretary of the Interior, or a decision
by this office, or by the local officers, which has bet.ome final under the
!Rules of Practice, that a portion of the smallest legal subdivision in a
section numbered 16 or 36 is mineral land, will place the entire subdi-
vision in the class of bases that may be used in selections of land a»
indemnity.
Second. All the lands in said sections 16 or 36, returned as non-
mineral, must be presumed to be school lands, for the purposes of this
act, until the presumption is overcome in the manner hereinafter in*
dicated. The bare return of lands as mineral by the surveyors-general
will not be regarded as conclusive in classifying them as mineral, the
returns of the deputy- surveyors as to the character of the land surveyed
having been found in many cases to be indefinite or erroneous.
Third. In the absence of a decision by this Department that land in
a school section is either mineral or non-mineral in character the State
may proceed as follows :
{a) By applying to this office, through the proper district office, where
the land has been returned as non-mineral, for a certificate that the land
was rightly so classed. Such certificate will determine whether the
reservation for schools took effect upon the lands in place so as to place
it beyond attack by mineral claimants. Notice of such proceeding must
be given by publication and posting in the manner prescribed by the
Kules of Practice.
(6) By proceeding to prove land which has been returned as mineral
to be in fact non-mineral, in the manner prescribed in circulars '^ N" of
September 23, 1880, and October 31, 1881.
(c) By relying upon the record for indemnity where lands have been
entered as mineral. Where the State authorities have information that
the mineral character of tracts in sections 16 and 36 is shown by evidence
in this office, a list thereof may be sent here through the proper district
office, to determine whether they may be used as bases for selections..
If the decision should be in the negative, the character of such tract may
be determined under the procedure indicated in the first and second
subdivisions of this paragraph.
8. The remaining grants made by the act referred to are as follows^
and the rules prescribed in numbered paragraphs 3 and 4 are also appli-
cable to the selections of these.
552 DECISIONS RELATING TO THE PUBLIC LANDS.
9. By section 12 there are graDted for tlie purpose of erecting public
buildings at tlie several capitals for legislative, executive, and judicial
purposes, 50 sections (32,000 acres).
10. Section 14 vests in the States of Montana, North Dakota, and
South Dakota, tbe lands granted to them respectively by the act of
February 18, 1881, for university purposes, viz: Seventy -two sectioits
to each, (46,080 acres) and provides that any portion thereof reniaiuing
unselected may now be selected.
11. Section 15 vests in the State of Soath Dakota, the lands granted
by the act of March 2, 1881, for a penitentiary, together with the build-
ings thereon, and any unexpended balances of the $30,000 heretofore
appropriated for that purpose, and extends like grants for tbe same
purpose to the States of Montana, North Dakota, and Washington.
12. Section 16 grants to each of the said States, except South Dakota,
for the use and support of agricultural colleges therein, 90,000 acres,
and to South Dakota, 120,000 acres.
13. Section 17 provides that in lieu of the grant for internal improve-
ments by section 8 of the act of September 4, 1841, and also in lieu of
any claim for swamp or saline lands, the following amounts are granted
for the purposes specified, viz:
To the State of Montana:
Acres.
For a Bchool of mines 100, COO
State Normal schools 100. («»
Agricultural colleges, in addition to the amount hereinbefore granted 50, 0(X)
State reform school 50. fHi^i
Deaf and Dumb Asylum 50,tKH)
Public buildings, in addition to tbe amount hereinbefore granted 150.000
Total amount 500.000
To North Dakota and South Dakota, each :
Acres.
For the school of mines iO^OtX)
Reform school 40.000
Deaf and Dumb Asylum 40,000
Agricultural college 40, «W
University 40,000
State normal schools SO^OOO
Public buildings at the capital 50,000
For such other educational and charitable purposes as the legislature may
determine 170,000
Total amount 500,000
To the State of Washington :
Arrei-
Scientitic school 100,000
State normal schools 100,000
Public buildings in addition to grant hereinbefore made 100,000
State charitable, educational, penal, and reformatory institutions 200. 000
Total amount 500.000
DECISIONS RELATING TO THE PUBLIC LANDS. 553
These instrnctions are also applicable to all States and Territories,
except the State of Nevada, whicb has a grant in quantity, and Alaska
for which no reservation of public lands has been made.
Yery respectfully,
W. M. STONE,
Acting Oommissioner.
Approved :
Geo. Ohandleb,
Acting Secretary.
STATE SELECTIONS-ACTS OF FEBRUARY 22, 1889, IlSTD FEBRUART
28, 1891.
CmOULAB.
Department of the Interior,
General Land Office,
Washington^ B. C, June 17^ 1897,
Registers and Receivers of U. 8. Land Offices
in Montana J North Dakota, South BaJrota and Washington.
Gentlemen: Circular of May 27, 1891, prescribing rules and regu-
lations for making selections of lands under the ijrovisions of tlie acts
of February 22, 1889 (25 Stats., 67G), and February 28, 1891 (26 Stats.,
796), is revoked in so far as it provides for the issuance of a certificate
by this office that school sectious returned as non-mineral were rightly
so classed (page 4, paragraph 7, third subdivision (a) ).
BiNGER Hermann,
Commissioner,
Approved :
O. N. Bliss,
Secretary.
AGRICULTURAL. ENTRY— MnSTN^G CLAIM— CHARACTER OF LANB.
Magkall et al. v. Goodsell.
The non-mineral character of a tract of land having been determined as the resalt
of a hearing had on that is^e, the Department is not justified in ordering another
hearing on the same issae, in the absence of a clear showing of development
made since the prior hearing, snoh as, if supported by the evidence at the hearing
applied for, woald clearly demonstrate that since such prior hearing mineral has
been discovered in such quantities, and by such thorough work on the premises,
as to overcome the eftect of the previous judgment as to the character of the laud.
Secretary Bliss to the Commissioner of the General Land Offi^cCj June 22y
(W.Y.D.) 1897. (P.J.O.)
This is an application for a hearing to determine the character of the
land in lots 1 and 2, Sec. 26, T. 10 N., R. 9 B., Sacramento, California,
land district.
Inasmuch as it is disclosed by the records of this office that the
554 DECISIONS ^ELA'riNG TO THE PUBLIC LANDS.
qaestion as to the character of this particular tract of land has been
the subject of couteution for about thirty years, it may not be amiss to
briefly recite its history.
The official plat was filed in the local office on June 16, 18G6, and
shows this tract to be returned as agricultural in character.
In August, 1866, one Allen T. Gray filed a pre euiption declaratory
statement for this and other lands, claiming settlement in 1856. A
protest was filed against this filing alleging the land to be mineral in
character, and in June, 1871, your office affirmed the judgment of the
local office sustaining this charge. It appears, however, that but a
part of the land was thus charged, and Gray was allowed the privilege
of having a segregation survey made. Failing to do this, his final proof
was rejected by your office in February, 1881, and it appears his pre-
emption filing was then allowed to lapse. In December, 1884, he made
application to make homestead entry of the land, which was allowed^
In April, 1892, Mildred L. Goodsell, the defendant in this case, filed
a protest against Gray's entry, alleging abandonment; and this charge
was sustained. At the same time she filed her homestead application
for the land.
In October, 1892, A. S. Bosquit et ah attempted to make miaeral
entry of the land, but the application was rejected because of GoodselFs
contest against the heirs of Gray. The mineral applicants api>ealed
from this decision, and also filed the relinquishment of the Gray heirs
to the tract, when the record was forwarded to your office, and by letter
of April 10, 1893, you affirmed the action of the local office in the mat-
ter of the contest between Goodsell and the heirs of Gray. You ordered
a hearing, however, to determine the character of the land, a preference
right being given to Goodsell in case the land should be adjudged to
be non-mineral. The hearing was accordingly had, and the local offi-
cers decided the land to be non-mineral. On appeal your office affirmed
their judgment, and by departmental decision of Decembers, 1895, the
concurring judgments below were affirmed ; and on April 6, 1896, a
motion for review was denied.
In said departmental decision of April 6, 1896, the testimony of the
several witnesses on both sides of the controversy is gone into at great
length, and seems to have been given very careful consideration.
It appears that on May 12, 1896, GoodselFs homestead application to
enter the land in controversy, and others, was allowed, and on the fol-
lowing day she gave notice of her intention to submit final proof on
June 25tli following. On that day J. P. Mackall, and others, appeared
and filed a protest against said proof, alleging that he and his asso-
ciates are the owners and in possession of the tracts by reason of a
placer mine location made on the same on June 10, 189G. He recites
the former adjudication and states that between the date of the former
hearing (July 20, 1893)
and down to the present time, portions of said lots 1 and 2 have l>een mined npon.
prospected and developed by different pnrtiesy affiant and his co-owners among tiie
DECISIONS RELATING TO THE PUBLIC LANDS. 555
natnber, \rith the result that the land is, as a present fact, more valuable for mining
and for the mineral therein contained than for agricnltural purposes; that the
character of the land, by virtue of said mining, prospect and development work, has
changed in favor of its mineral character since July, 1893;
that, the protestant and his co-owners enjoy facilities and privileges for
working said placer mine that the former protestant did not; that they
have secured the use of water, the right of drainage, etc. They state
that work had heen done on the Pelton placer mining claim, which
adjoins the tracts ia controversy, since 1893, and ''that the mining
work done upon said lots 1 and 2 has demonstrated the land to be more
valuable for mineral than for agricultural purposes"; that affiant has
worked from the Pelton placer mine workings over and beyond the line
dividing lots 1 and 2 from the Pelton and found gravel in paying quan-
tities; and
that drifts have also been run by affiant and others and gravel extracted from said
drifts, Avorking from the Dividend (Pelton) side and beyond the boandary thereof
to points on the Mackall placer and the land in controversy^ the prospects from
which and results obtained thereby justify affiant in believing that the Mackall
placer mine is very valuable for the gold therein contained.
There are some other allegations contained in this protest, but they
are not deemed of vital importance in deciding the question that is
presented.
The protest is corroborated by one Hodgkin, who says that he is the
owner of the Dividend placer mine, which is said to be the same as
the Pelton; that it is situated east of the land in controversy; that he
knows the nature and character of said land ;
that the channel running through the said Dividend placer mine extends into and
passes through the greater part of the said above described land claimed by Mildred
L. Goodsell, so far as I can ascertain ;
that where he has been working in the Dividend placer mine is about
twenty five feet from the Hue of the above described land; and "that
from my acquaintance with the above described land I believe it to be
much more valuable for mineral than for any other purposes."
Coval, another corroborating witness, says that he has been engaged
in mining on adjoining land,
and did mine on a part of the above described land in the winter of 1895-6, as fore-
man for Dividend Mining Company, and the operations of mining have resulted in
obtaining gold in large paying quantities, and beyond any doubt now in my mind
the channel carrying gold in paying quantities extends into and through said above
described land.
He is positive that the channeT runs into and through the lands
included in the homestead entry; says he was a witness for the home-
stead claimant in the former hearing but did not think at that time
that the pay channel extended into the land in controversy, but has
found that he was under a wrong impression, from actual workings, and
"can now testify understandingly that said pay channel does extend
through said above described homestead lands.''
556 DECISIONS BELATINQ TO THE PUBLIC LANDS.
Upon consideration of this protest the local officers declined to order
a hearing, and held that the agricultural claimant shonld submit her
proof. On appeal your office affirmed this action and dismissed the
application for a hearing; whereupon the protestant appealed to the
Department.
It will be observed from the above statement of the history of this
tract that as a result of the hearing before the local officers in the first
contest against Gray's pre-emption filing, a part, at least, of tbe land
in controversy was adjudged to be agricultural in character, and the
order in that case was that Gray should make a segregation survey of
the land shown to be mineral. To what extent the ground was found
to be valuable for mineral does not appear by anything before this
Department.
It would appear that Gray still continued to hold the land under his
pre-emption filing until February, 1881, when the final proof he had
submitted was rejected. Again, in 1884, he was permitted to make
homestead entry, which was contested by Goodsell on the ground of
abandonment. Subsequently came the contest of Bosquit and others
against her, distinctively alleging the ground to be mineral in charac-
ter, and the question was tried with the single end in view, apparently,
of proving its mineral character. There were concurring conclusions
all along the line holding that this charge was not sustained.
In view of all this, the Department would not be justified in ordering
a hearing upon this same charge, unless it is based upon a distinct
showing of development made since the prior hearing, such as, if sup-
][)orted by the evidence at the hearing applied for, would clearly demon-
strate that since such prior hearing mineral has been discovered in such
quantities, and by such thorough >york on the premises, as to overcome
the effect of the previous Judgment as to the character of the land.
The protest and corroborating affidavits do not, in my judgment^
show that the work done and results accomplished on the land in con-
troversy, warrant a further hearing in the premises.
It will be observed that there is no claim made by either the protes-
tant or his witnesses that any systematic or thorough work has been
done on the ground in controversy by which it has been developed that
there is valuable mineral therein. It would appear that they rely
almost entirely upon work that has been done in the Dividend or Peltou
placer, which adjoins this, as a basis for their statement that they
believe the land in controversy to be valuable for mining purposes.
This is not sufficient, where there has been a prior determination as to
the character of the land.
The statements made as to the mineral character of the ground are
chiefiy the opinions of the parties making them as to what may he
found by future development. The showing required is one dealing
with what has been found as the result of present development.
Tour office judgment is therefore affirmed*
DECISIONS REUATINO TO THE PUBLIC LANDS. 557
HOMESTEAD ENTRY-DESERTED WIFE-RESIDENCE.
Jennie W. Lindsey.
A deserted wife who secures the cancellation of her husband's homestead entry, and,
as the head of a family, thereafter makes a homestead entry of the land, is
entitled, on final proof, to credit for her residence on the land prior to the date
of her husband's desertion. ^
Secretary Blu% to the Commissioner of the Oeneral Land Office^ June 22^
( W. V. D.) 1897. (E. 6., Jr.)
The land involved in this case is the NE. \ of section 27, T. 31 S., E.
66 W., Pueblo, Colorado, land district.
John H. Lindsey made homestead entry No. 5077 therefor December
28, 1887, which, after being contested by Jennie W. Lindsey as his
deserted wife, was canceled by your office July 5, 1895. Thereupon
Jennie W. Lindsey, as the head of a family, made homestead entry No.
9038, July 30, 1895, for the tract above described, submitted final proof
September 17th following, and received final certificate No. 3103 for the
land October 8, 1895. The papers in the case having been transmitted
to your office, it was there held, February 5, 189G, that Mrs. Lindsey
could not claim the benefit of residence on the land prior to January 15,
1893, when her husband deserted her, and that she would be required
to reside upon and cultivate the land for the period of five years alter
the date of such desertion. She appeals from this decision, contending
that she is entitled to have credit for her residence on the land with
her husband x>rior to the date of his said desertion.
It appears that she commenced to reside with her husband upon the
land in March, 1888, and resided there, thence, continuously, until
March 15, 1892, when, by reason of sickness and upon the advice and
direction of physicians, she went to her father's home in Pennsylvania
and was compelled to remain there on account of continuous sickness
until about January 23, 1894, when she returned to the land, upon which
she has resided ever since, her only subsequent absences having been
at intervals while engaged in teaching school in the city of Trinidad,
only a few miles from the land, in order to earn a support for herself
and her infant daughter.
In the case of Maggie Adams, a deserted wife (19 L. D., 242), citing
Bray t?. Colby (2 L. D., 78), it was held that upon the cancellation of
her husband's entry at her instance, she might make entry for the land
involved, as such wife, ''and be given credit in her final proof for the
time she has resided upon the land.'' These cases are conclusive of the
case at bar in favor of the contention of the appellant.
The decision of your office is accordingly reversed. Mrs. Lindsey
will be credited with her residence on the land prior to the time of her
husband's said desertion.
558 DECISIONS RELATING TO THE PUBLIC LANDS.
TOWN LOT-OCCUPANCT-TRESPASS.
Amigk V. Carroll.
Occapancy of a town lot acquired through trespasa, and the wrougfhl diaposaeasion
of a prior occnpanty will not defeat the right of each occupant to a deed, thoogb
the trespasser may he the sole ocoupant at date of the townsite entry.
Secretary BIIbb to the Commisswner of the General Land Office^ June 22,
(W.V. D.) 1897. (G. C. R.)
This case involves lot 3, block 22, Newkirk, Oklahoma Territory (Enid
land district), and is here on appeal by Lewis L. Amick from your office
decision of Jaly 13, 1890, awarding said lot to Benjamin F. Carroll.
The record discloses the following:
On February 5, 1894, Benjamin F. Carroll filed his application before
the townsite board of trastees for a deed to said lot, alleging that he
took i>ossession of the same on the 2Gth day of September, 1893, and
bad occapied it ever since, having improvements thereon of the valae
of tlOO, was daly qualified, etc.
On March 15, 1894, Lewis L. Amick filed his application for a deed to
said lot, alleging his qualifications, etc., and that he was entitled to the
same.
At the hearing, which was had before the trustees, December 7, 1894,
it was shown that on September 25, 1893, Amick purchased the lot from
a former occupant, one Metz, or Mitt^, who claimed to have exclusive
possession of it, giving in exchange therefor a horse^ which cost bim
$35. With the lot, he purchased a tent, then erected thereon, and with
the tent he also purchased its contents — bunk, cooking stove, cookiug
utensils, etc. He slept in the tent the night of September 25, and took
his meals there; on the next day, he started to his home in Kansas to
prepare for moving to the lot, and to make it his home and place of
business (conducting a feed store). During Lis absence, he permitted
one Thompson to stay in the tent, giving him directions to care for the
tent, lot, etc. He returned to the lot in al>out one week, and found that
Thompson had built a small house thereon. He at once paid Thompson
for it. He also discovered that Carroll had put a tent on the lotduriDg
his absence. He again went back to Kansas, and on liis return he dis-
covered that his house had been moved ofif the lot; be put it back again.
It appears that on September 26, the day after Amick made set-
tlement, Carroll stretched bis tent on lot 2, southeast of Amick's tent
Finding by a survey that his tent was placed on a lot he could not pet
Carroll, about September 29, and during the absence of Amick, moved
his tent on lot 3, the one in controversy. At that time, he knew this
lot was occupied by some one, the tent being there, and, in all proba-
bility, he knew it was Amick's tent. Thereafter, Carroll continuously
occupied the lot. and was an occupant on the day (January 20, 1894,)
DECISIONS RELATING TO THE PUBLIC LANDS. 559
the townsite entry was made, having built thereon a half dugout and
half sod bouse, and a sod stable for his horses.
When Amick first settled on the lot, he was not certain which way it
and the adjacent lots faced — whether east and west, or north and south;
a survey showed the lot to face south, but in either case his tent was
on lot 3, as testified by him. The finding of your office in this respect
was erroneous.
The townsite trustees state that Carroll's testimony "was evasive
and insincere, clear up to his last answer, which was a direct violation
of the truth." The record justifies this statement. Amick's house, as
above shown, was twice moved from the lot; both times probably by or
under the directions of Carroll. On his first examination, he positively
denied doing it, or of knoM'ing who did it; a witness then came on the
stand, and swore he saw Carroll moving the house. After this, Carroll
again took the witness stand, and admitted it, claiming he was "both-
ered" when he first testified. His testimony throughout his whole
examination is so evasive and unreasonable as to cast a doubt upon all
his testimony relating to disputed questions of fact, except wherein
such testimony was corroborated by other witnesses.
After Carroll had obtained possession of the lot in the manner above
shown, Amick notified him to quit possession; this notice Carroll
Ignored, and Amick brought suit for possession; the suit was dismissed
at the instance of Amick's attorney, because of the absence of an
important witness.
Your office erroneously finds that Amick did not notify Carroll to
leave the premises.
The entry of the land for townsite purposes was made "for the sev-
eral use and benefit of the occupants thereof." Upon the date of that
entry (January 20, 1894,) Carroll was the sole occupant, but the evi-
dence shows that such occupancy was obtained by trespassing upon
the known rights of another. Carroll well knew that Amick's tent
was on the lot at the time he (Carroll) moved his tent thereon; in the
absence of Amick, he moved the latter's house from the lot in the
night time, and then built thereon a sod house and sod stable.
A recent examination of the townsite plat shows lot 3 to be forty by
one hundred and ninety feet.
Amick did not live on the lot after Carroll took possession of it, nor
did he make further improvements. In the nature of things, this
could not be reasonably expected of him. For him to have undertaken
to live on or improve the lot while Carroll was there would have been
to invite constant annoyances, trouble and possible danger.
The circumstances and conditions attending the occupancy of a
small lot by hostile comi>eting claimants at the same time are wholly
different from those which easily permit the occupancy of a quarter
section of land by such claimants, and where it is shown that a first
bona fide occupant of a town lot has, through the wrongful or tortious
560 DECISIONS BELATINQ TO THE PUBLIC UlNDS.
acts of another, lost possession of, or has been oasted from, bis rigkt'-
ful occupancy of the lot, which by unjustifiable and illegal means has
been reduced to the occupancy and possession of the trespasser, the
wrong doer will not be permitted to profit by his unlawful acts.
Although the trespasser may be the sole occupant of the lot at date
of the townsite entry, he will not be permitted to receive his deed
therefor; he can not be held as a bona fide occupant. Having been
wrongfully dispossessed of the lot and thereafter unable to obtain pos-
session thereof, Amick^s occupancy will be considered as onbroken from
the date of his first entry thereon.
The decision appealed from is reversed* The lot in question win be
deeded to Amick.
RIGHT OF WAY— ACTS OF MARCH 8, 1891, AND MAY 14, 1896.
H. W. O'Melveny.
The right of way acts of March 3, 1891, and May 14,. 1896, differ so widely In the
character of the estate granted, as well as in the uses to which the right of way
may be devoted, and the extent thereof, that an application can not properly be
allowed on the two acts taken together; the permission mast rest either upon
one act or the other.
Secretary Bliss to the Commissioner of the General Land Office^ June 23^
(VV. V. D.) 1897.
With your letter of April 6, 1897, you submitted the application and
accompanying documents, filed by H. W. O'Melveny, trustee, etc., ask-
ing for permission to use right of way under the act of May 14, 1896 (29
Stat., 120). You recommend that the permission desired be given and
the accompanying map be accordingly endorsed.
The application is couched in the following language:
I herehy make application for a right of way over the lands described in the map
hereunto attached, said right of way to be twenty-five feet on each side of the central
line of the proposed ditch and conduit, as designated npon said map, in accordance
with the provisions of the act of Congress approved March 3, 1S91, 26 Stat., 1095,
and the act of Congress passed May 14, 1896, and under the mles and regulations
concerning rights of way for canals, ditches and reserxoirs over the pnbliclands
and reservations, for the pnrpose of irrigation and development of water power,
approved Feb. 20, 1894.
The certificate on the map accompanying the application coutiuns
this statement:
And I further certify that the right of way for said canals and reservoirs is desired
for the purpose of supplying agricultural communities with water, and for pnrposes
of irrigation and for the purpose of generating electric power and for no other pur-
poses whatsoever.
The two acts of March 3, 1891 (26 Stat., 1095), and May 14, 1896
(29 Stat., 120), are so different in the character of estate or permission
therein provided for, as well as in the uses to which the right of way
DECISIONS RELATING TO THE PUHLIC LANDS. 56 1
may be devoted and the exteut of such right of way, that uo permission
or grant can be sanctioned which is based upon the two <acts. The per-
mission gi^anted must rest either upon one act or the other.
The right of way named in the act of May 14, 1896, is only author-
ized '*for the purposes of generating, manufacturing, or distributing
electric power." Since j- our letter Mr. O'Melveny and his associates,
through their attorney, 3Ir. D. A. Chambers, have signified their desire
to confine the application in this case to the act of May 14, 1896, and
have stated that the right of way is desired *^for the purposes of gen-
erating, manufacturing, or distributing electric power.''
The fact that the application and accompanying documents asked
more than can be granted, is no reason for the entire rejection thereof.
I have granted the permission authorized by the act of May 14, 1896, '^ for
the purposes of generating, manufacturing, or distributing electric
power," and have denied the application in other respects.
I10ME8TEAI>-SEC0X1>15XTRY— CTOMMUTATIOX— SOLDHCltS' HOMESTEAD.
William A. Atciiinson.
The coxumutation of a homestead entry prior to the passage of the act of March 2,
1889, defeats the right to make a second entry under section 2, of said act.
There is nothing in section 2304 li. S., which authorizes a soldier to make a home-
stead entry who has perfected an entry nnder the provisions o:^ the general act.
Secretary Blisn to the CommisHioiier of the General Land Office^ May 13y
W. V. D.) 1897. (-J. L. McC.)
William A. Atchinson has appealed from the decision of your office,
dated Ju]^ 23, 1895, rejecting his application to make homestead entry
for the SE. i of Sec. 34, T. 12 X., K. 19 W., Los Angeles land district,
California.
The ground of said decision appealed fW)m was, that Atchinson had
previously (on January 29, 1806,) made a homestead entry, which he
had (on June 23, 1868,) commuted and paid for with a military bounty
land warrant; for which patent has since issued (on November 2, ISG8).
Atchinson contends that the second section of the act of March 2,
1889 (25 Stat., 854), permits him to make another homestead entry,
inasmuch as he has not ^^had the benefit of the homestead act," and
has not perfected title by living on the land for five years.
The opportunity was afforded him to obtain the land by living upon
it for five years, but he chose not to avail himself of that opportunity,
and commuteil his entry to cash — which is held by the Department to
be equivalent to x)erfecting an entry under the homestead law. (Frank
J. Lipinski, 13 L. D., 439; Happel v. Hamline, 21 L. D., 28^^; and many
other cases.)
Atchinson contends that his former entry was a "citizen's home-
10671— VOL 24 36
562 DECISIONS RELATING TO THE PUBLIC LANDS,
stead/' and tliat be ih entitled in addition to a '^soldier^s homestead
entry."
When he made his former entry he was entitled, by virtue of having
been a soldier, to certain advantages: (1) he might have filed his claim
through an agent (K. S. 2309); and (2) he might have had his term of
service in the army (if not exceeding four years) deducted &om the
I>erio<l of residence required under the homestead laws (R. S. 2305).
He was entitled to these advantages in connection with one entry; but
there is no law granting ]iim a ^'soldier's homestead entry'' in addition
to a "citizen's horaest«a<l entry.''
The decision of your ofHce was correct, and is hereby affirmed.
BKSBRT LANDS- ACrr OF AUGITST 18, 1894.
State of Wyoming.
A relinquishment on the part of the State of desert lands iucladed in a contract
made nnder section 4^ act of August 18, 1894, to be effective must be executed by
the officen designated by the State legislature to manage and dispose of said
lands.
Under the provisions of said act, the departmental regulations thereunder, and tbe
tenns of the State art, the maps, and lists of selections shown thereby, are
properly authenticated by the signature of the chief clerk of the State board of
land commissioners.
Secretary Blins to the Comminsioner of the General Land Office^ June 25,
(W. V. D.) 1897. (J. I. P.)
By your office letter "F" of the 15th instant you submitted for my
consideration certain papers purporting to be relinquishments of cer-
tain lands signed on behalf of the State of Wyoming, by the chief
clerk of the board of laud commissioners of said State, in x^ursuance of
a resolution of said board authorizing him to sign the same. The tracts
involved are the SE J and the S i S W J, Sec. 25, T. 52 N., R. 97 W. of
list 1 : and lot 3, Sec. 7, T. 53 N.j^ R. 95 W. of lists 2 and 4. The lists
and maps showing these tracts have been heretofore approved by the
Secretary of the Interior and the contract embracing them has been
executed by the Secretary of the Interior and tlie governor of said
state, and approved by the President. All of said proceedings having
been had under the provisions of section 4, of the ac».t of August 18,
1894 (28 Stat., 372-422), known as the Carey act.
For reasons stated in your said office letter "F'' of the 15th instant,
you express doubt as to the validity of said relinquishments and ask
instructions in regard to them.
In reply you are adviseil that the act of the legislature of the State of
Wyoming, approved February 14, 1895, accepting the provisions of the
Carey act, provides, in section 2 thereof, that ^'' the selection, manage-
ment and disposal of said lands ^ shall be vested in the State board of
DECISIONS RELATING TO THE PUBLIC LANDS. 563
land commissioners, as constituted by section 3 of article 18 of the con-
stitution of the State. Section 3 of said act designates the governor of
tlie State as president of said board and provides that ''it shall be his
duty to sign all contracts, papers and documents that shall be approved.
made or directed by said board."
The authority vested in the Board of Land Commissioners by said
act ''to select, manage and dispose of said lands" cannot be delegated
by it, uidess the provisions of said act expressly authorize such dele-
gation.
A relinquishment of said lands to the government can only be made
under the authority vested in the board to "dispose" of said lands.
After careful examination I have been unable to find in said act anv
express provision that authorize^ said board to delegate that authority.
There is a provision in section 6 of said act which prescribes the
duties of the chief clerk of the board of land commissioners, that he
sliall " do any and all work required by the board in carrying out the
provisions of this act." But the " general" terms of that section coald
not be construed into an "express" provision authorizing- a delegation
of the authority vested in said board to "dispose" of said lauds. To
so construe it would be to cause the " general" terms of said section to
govern as against the " express " provisions of sections 2 and 3 of said
act which fix the powers and duty of said board and of the governor
of the State. And such a construction would be in violation of the
rule that" specific provisions relating to a particular subject will gov-
ern in respect to that subject as against general provisions contained
in the same act." (Sutherland on Statutory Constructions Sec. 158.)
I am of the opinion, therefore, that the relinqnishments in question
have not been executed by the powers authorized by law to execute
them ; that they should be executed by the board of land commissioners
on behalf of the State and signed by the governor of the State as gov-
ernor and ex-officio president of the board of land commissioners.
You also, in this connection, request consideration of the former
practice by which the maps of the lands to be segregated and the lists
of the lands have been accepted under the authentication of the chief
clerk who was authorized to select the lands by resolution of the board,
while the signature of the governor has been required only to the
contract.
On that point I desire to state that in my judgment the former prac-
tice which is now in vogue is in strict accord with the provisions of
section 4 of the act of August 18, 1894 (supra), the act of the legisla-
ture of Wyoming accepting the provisions of said act, and the regula-
tions of this Department, as found in 20 L. D., 440.
Section 6 of the Wyoming act, above referred to, makes it the duty
of the chief clerk ".to prepare and keep for public inspection, maps,
plats etc., of State lands selected; and section 11 of said act provides,
among other things, that " the board shall instruct the chief clerk to
664 DEOISIONS RELATING TO THE PUBLIC LANDS.
file in the local land office a request for the withdrawal of the lands
described etc." The lands referred to are those which the state desires
to have segregated.
Paragraph 4 of the departmental iustructious ibond in 20 L. D.. ]Yjkgt
441 provide that
the maps should hear an affidavit of the engineer who made or enpervised the prep-
aration of the map or plan^ form 1, page 443; and also of the officer authorize<l hj
the State to make its selections under the act, form 2, page 443.
As it is apparent that the chief clerk, when iustrncted so to do by
the board, is the officer authorized to make the selections or request
the withdrawal (which is the same thing) of the lands which the State
desires to have segregated under the Carey act, it follows that his sig
nature to the map is the one contemplated by the regulations of the
Department above quoted, and that it is valid and authoritative, lii
addition it may be said that the contract required to be entered iiito
between the State and the Secretary of the Interior refers to aud
identifies the map' filed, and that contract is signed on behalf of tlie
State by the governor and binds the State to anything that is sho\fu
by the map. It follows, also from what has been shown above that
the lists filed by the chief clerk in the local office requesting the with-
drawal of said lands, which lists are required by the 6th paragraph of
the regulations of the Department (20 L. D., 442) to be filed in tripli
cate, are valid and authoritative.
The relinquishments transmitted by your office letter "F" of the
15th instant are returned herewith without approval or acceptance,
with instructions to return them to the governor of the State of Wyo
ming; together with a copy of this letter.
COMMISSIONERS OF TILE CmCITIT COURT— T7NITEI> STATES COMMI«i-
SIONERS.
CiRCULAB.
Department of the Interior,
General Land Office,
Washington^ D. C, June 25^ lb97.
Registers and Beceivers, United States Land Offices,
Gentlemen : Tour attention is called to Sec. 9, act of May 26, 181^,
29 Stat, 184, which provides that the terms of office of all commis-
sioners of the circuit court shall become vacant on June 30, 1897, and
that such offices shall from that da^' cease to exist.
This act provides for the appointment of United States cominis-
sioners, and prescribes that they shall have the same powers and per-
form the same duties as are now imposed upon commissioners of the
circuit court.
You will, therefore, in the future recognize such United States com-
missioners as being fully authorized to do any act in connection with
PECISION8 RELATING TO THE PUBLIC LANDS. 5G5
the disposal of the public lands which could heretofore have been law-
fully performed by commissioners of the circuit court.
In the event that final proofs have alread}'- been advertised to be
niadt> before any commissioner of the circuit court on a date comings
alter June 30, 1897, it will be necessary to fix a new date before another
ofVicer authorized to act, and cause a new notice thereof to be x)ublished
as though no notice had ever been i^ublished ; unless the person hold-
ing the office of circuit court commissioner before whom said proof was
advertised to be taken has been duly appointed United States commis-
sioner, in which event the proof may be taken before him as such
United States commissioner at the time and place named in the first
notice, without new notice thereof bdng published.
If you have directed that testimony be taken before any commis-
sioner of the circuit court after June 30, 1897, under Rule of Practice
35, you will at once upon tlie receipt of this circular proceed to name
another officer authorized to administer oaths before whom such testi-
mony shall be taken at the same or some other convenient time and
place, and notify the i)arties in interest thereof.
Very respectfully,
HiNGKR Hermann
Go7nmi8ifio7ie}\
Approved June 25, 1897.
0. N. Bliss,
Secretary of the Interior,
PRACTICT5— APPEAI^TOWX LOT— ADVERSK <K C irPANTS.
Cosby et al. r. Aveby et al.
A caHe ou appeal, that involven the rights of several parties appellant, will be
treated as properly before the Department ou the whole record, though it may
be alleged that one of the appellants filed his appeal out of time.
A certificate of right issued b}' the provisional authorities of a town to a lot claim-
ant, is only to be regarded as prima facie evidence of title, where there is an
adverse claim at the time the case is considered by the townsite board.
Adverse occupants in good faith of a town lot at the date of a townsite entry may
be treated, in cases where priority of settlement does not determine their rights,
as joint applicants, and receive a deed jointly, according to their respective
holdings, though such occupants may have filed separcite and adverse applications.
Secretary Bliss to the Commissioner of the General Land Office^ June 29,
(W. V. D.) 1897. " (C.J. W.)
Mary T. Cosby and Joseph D. Cosby (husband and wife) made joint
application to townsite board No. 1, at Guthrie, Oklahoma, for a deed
to lot 13, block 57, in said town alleging facts which, prima fa^^ie, would
entitle them to such deed. John !N. Parsons, Henry P. Townsley,
Stephen S. Smith and Frank Ilecock made separate applications for a
deed to the same lot. Dillon S. Avery and Fr.ed Meyer made joint
566 DECISIONS RELATING TO THE PUBLIC LANDS.
application for a piece of land deficribed by metes and bounds, witbont
reference to any aathorized survey, which included a part of lot 13,
block 57, as indicated by the survey and plat of the town, and subsse
quently and before a second heariug of the case, they filed application
for a deed to lot 13, block 57, in said town of Guthrie. W. S. Smith,
attorney for Charles A. Mathen, tiled with said board, on September 2:3.
1890, a certificate signed by D. M. Koss, acting mayor, granting pos-
session of lot 13, block 57, to said Mathen, and asked that leave be
grauted him to file an application for Mathen within a reasonable time.
On January 15, 1891, the board issued notice to the several appli-
cants, including Mathen, naming February o, 1891, as the day for hear-
ing their claims. A hearing was had and on April 6, 1891, the board
rendered a decision (one member dissenting) in which they awarded a
deed to the Gosbys for the entire lot. The decision and record were
transmitted to your office, and on April 28, 1895, upon the examination
of the record your office found that some of the parties had not been
served with notice of the hearing, and remanded the case for a rehearing
upon proper notice to all the parties, unless the parties not properly
served before the first hearing should fail to appear, in which event
the record was to be returned to your office for proper disposition of
the case. The x)arties were accordingly notified that a hearing would
be had before townsite board No. 6, successors of board No. 1, on July
19, 1894, and on that day Townsley, Parsons, and Hecock defaulted.
Stephen S. Smith, one of the applicants who had failed to appear at tbe
first hearing, appeared at tbe second hearing, and thus restored bis
status as an applicant for a deed. A motion was made to return tbe
record without the second hearing, by the Cosbys, which was overruled
by the board. No testimony was offered, however, except that offered
by the joint applicaiits. Tbe townsite board, on July 1, 1895, rendered
dissenting ox)iuions, each member of the board taking a different view
and arriving at a different conclusion. These several opinions, togetber
with the record, were again transmitted to your office, and on May l1>,
1896, your office considered and reviewed the entire record and awarded
to Avery and Meyer thirty-one feet by twenty-five feet in width of tbe
back end of said lot and tbe remainder to Mary T. and Joseph D. Cosby.
On July 30, 189G, Mary T. and Joseph D. Cosby filed an appeal from
said decision, and on the same date Mary T. Cosby filed a separate
appeal in which she alleges that the deed should have been awarded to
her solely and not jointly to her and her husband, and that it should
have embraced tbe whole lot.
On July 31, 1896, Avery and Meyer filed an appeal from said decision
on various grounds therein stated. On August 11, 1896, your office
decided that tbe appeal of Avery and Meyer was filed out of time and
notified them that the appeal would not be forwarded with the record.
Avery and Meyer on tbe 4tb of September, 1896, filed a ])etitioD for
certiorari under Rules 83, 84 and 85 of Practice, alleging error upon tbe
DECISIONS RELATING TO THE PUBLIC LANDS. 567
part of your office in holding that their appeal was filed out of time,
and praying that said appeal and the record be ordered up and consid-
ered. Briefs have been filed by counsel on both sides covering both
the appeals and the petition for certiorari. Your office, in fact, for-
warded the appeal of Avery and Meyer as a part of the record in tlie
case, along with the appeals of Mary T. Cosby and of Mary T, Cosby and
Joseph D. Cosby. The last named appeals being filed in time bring the
case before the Department, and render necessary an examination of
the entire record, and put in issue the rights of Avery and Meyer.
Under this state of facts it is not necessary to consider the controversy
as to whether or not the appeal of Meyer and Avery was filed one day
too late. The case will be considered as properly before me, with Avery
and Meyer's rights in issue as well as those of the Cosby's, since the
appeals of the Cosbys preserved the status of Avery and Meyer as
parties to the litigation, even if they are not properly appellants.
The separate appeal of Mary T. Cosby requires no lengthy considera-
tion. It is based upon the fact that pending the litigation she obtained
a warranty certificate issued by the provisional authorities of Guthrie
in her name only, and that said certificate is binding and conclusive
upon the other parties, because Avery had notice of her application for
said certificate, and refused to submit his claim for consideration and
her husband consented to its issuing in her name. Such certificate is
only to be regarded as prima fa<ne evidence of title where there is an
adverse claim at the time the case is considered by the townsite board
(Bender v. Shimer, 19 L. D., 363).
In the light of the testimony in this case, the certificate is without
force to affect the rights of Avery and Meyer and the Department will
leave Mary T. and Joseph D. Cosby, who applied jointly for a deed, and
who occupied a part of the lot jointly at the time of the townsite entry,
and have filed joint appeal to adjust their respective rights between
themselves. It is insisted that the record authorized and demanded
that Mary T. Cosby be held to be the first settler upon the lot. This
contention will be reserved for consideration with the like contention
of Avery that he was the first settler. This is a question of fact, and
before coming to it, a legal proposition insisted upon by both sides,
will be considered.
It is alleged that your office erred in undertaking to divide the lot
between rival applicants for a deed, and tlie case of McGrath et al. (20
L. D., 542) is cited as authority. • In the later case of Woodson et al. v.
Johnson et al. (22 L. D., 102), it was held that townsite boards should
not execute deeds for fractional parts of a town lot, but for the protec-
tion of separate interests therein, may, on joint api)Hcdtion, deed to the
several parties jointly the entire lot according to their respective hold-
ings. This is a clear recognition of tbe fact that there may be more than
one legal occupant of a town lot, and the refusal of tbe Department to
authorize the execution of separate deeds for fractional parts of a lot is
568 DECISIONS RELATING TO THE PUBLIC LANDS.
an administrative rule, the purpose of which is to remit to the courts,
the actual partition of lots where sucli partition is not agreed upon by
the jiarties. This rule may be yet enlarged in the interest of a less
expensive administration of the townsite laws. It is apparent that
there maj' be different occupants of a town lot, who have valid claims
to (lifferent parts of a lot, but who may not agree to apply jointly for
a deed. All applicrants who show by proof that they were qnallfied
settlers and actual occupants in their own right of any part of a town
lot at the date of the townsite entry, in cases where there is more than
one such occupant, should be treated as joint applicants, although they
may not have filed joint applications, and may have filed separate and
adverse ones, if it is adjudged on the final decision of the case, that
they were legal occupants of th^ same lot at the time of its entry, and
entitled to a deed for their respective holdings.
Such joint occupancy of a town lot can only exist in cases where from
some cause the rule of priority of settlement is not conclusive as to
the rights of the parties. Ordinarily, such priority of settlement, where
occupancy has been maintained, will determine which one of two or
more settlers is entitled to the whole lot, the rule being that settlement
on any part of a lot is notice of an intention to claim the whole lot and
is a segregation of it, but there are instances where this rule is inax>-
plicable, and this case would seem to be one. The fact as to which of
the parties, — the Cosbys or Avery — located first on the lot, on the day
of the opening is left in some doubt, owing to the conflicting testimony ;
but if it be conceded that Avery occupied a part of the lot slightly in
advance of the Cosbys, as was the opinion of your office, he so limited
his occupancy then and thereafter as to amount to an abandonment of
that part of the lot occupied by the Cosbys. The evidence indicates
that his tent was first erected in First street, and afterwards moved
so that it was partially on lot 13. He made selection of a certain plat
of ground, the boundaries and limits of which he undertook to fix for
himself arbitrarily, and which he insisted should control the survey
into lots, blocks, and streets, and not be controlled by the survey.
The plat of ground thus claimed by him was clearly indicated by meas-
urement and stakes. It includes a small part of the north end of lot
13, and leaves vacant, and outside his claim, all the south end of the
lot. If after the survey was made and the boundaries of lot 13 were
made clear, Avery had adjusted his claim to the survey, the case might
be different; but Ipng after the survey and platting he continued to
stand on his rights within the staked limits, and substantially dis-
claimed whatever was outside the plat indicated by his stakes. (See
Avery et al v. Freeman et al,^ 22 L. I)., 505.)
The Cosbys were permitted to lM)th occupy and improve all the south
end of the lot, without protest an<l objection; and Avery and Meyer
are now estopped from changing the character of their claim, so as to
effect the o(»cupancy and improvetnents of the Cosbys. Prom the time
of their original location to the time of the hearing in December 1894,
DECISIONS RELATING TO THE PUBLIC LANDS. 569
the Cosbys have resided on the lot, paid all city taxes and street assess-
ments, and have expended on the lot abont $700. It was not nntil July
19, 1894, five years and more after the original settlement that Avery
and Meyer amended their application for a deed so as to make it an
application for a deed to lot 13, and thus placed themselves in an atti-
tude which would enable them to set up a claim as prior occupaniB of
a small fraction of said lot, for the lot itself. The character of the occu-
pancy of Avery and Meyer, and their acts indicating what they claimed,
left out all that part of lot 13 occupied by the Cosbys, and they must be
considered as having nbandoned it.
Under townsite laws, actual occupancy in person or by a tenant at
the date of the townsite entry is a prerequisite to the acquisition of
title, and will entitle such occupant to a deed, unless the occupancy
appears to be in fraud of the rights of an earlier occupant, whose
occupancy has continued.
It is manifest that the Cosbys were occupants of part of lot 13,
block 57, on the 2d day of August, 1890, the date of the townsite entry,
claiming for and representing themselves, and that they had valuable
improvements on the lot, and it is equally clear that Avery and Meyer
were also occupants of a part of it on that day, claiming for themselves,
and with valuable improvements on it. Looking to the incidents con-
nected with the settlement, improvements and occupancy of the
respective parties, I am unable to find that either acted in fraud of
the other's rights, so as to make their actual occupancy on the day
of the townsite entry of no avail.
Both parties having made valuable improvements, and having acted
in good faith, on different ends of the lot, and each having maintained
occupancy up to and including the time when the entry was made by
the trustees, it seems that such entry must inure to the benefit of the
several occupants according to their respective holdings; and it is
accordingly held that Avery and Meyer— joint occupants of one part
of the lot — and Mary T. Cosby and Joseph 1). Oosby — as joint occu-
pants of the other part— are entitled to one deed, in which their rights,
according to their respective holdings, is recognized. The i)nding of
your office us to the particular parts of the lot occupied by the parties
respectively seems to be supported by the record. The parties will be
allowed sixty days within which to file a joint application, as in the
case of Woodson et al. v. Johnson et «/., before referred to, and failing
to make such application, the acceptance of such deed by any one of
the parties, for the joint use and benefit of all, according to their
several rights, shall close the record as to departmental jurisdiction.
Your office decision is affirmed.
Van Dyke r. Lbhrbass.
Motion for review of departmental decision of April 19, 1897, 24 L. D.,
322, denied by Secretary Bliss, June 29, 1897.
570 DECISIONS RELATING TO THE PUBLIC LANDS.
CERTIORARI-FAILURK TO ^VPPE^VL IX TIMK--l»ETITION .
Spublock bt al V. Crane.
Where failure to appeal in time ie due to accident or mistake, which is BatisfactorUy
explained, certiorari may he allowed, if sneh action will not resolt in injoiy to
innocent parties.
The writ of certiorari will not be granted if the petitioner fails to show that the
decision complained of is erroneous, and did not render substantial jastice ia
the premises.
Secretary Bli^s to the Commissioner of the General Land Office^ June -5f',
(W. V. D.) 1897. (C. AV. P.)
Ou May 20, 1897, you transmitted an application, on the part of
Charles W. Spurlock, for a writ of certiorari, requiring you to certify
to the Department the record in the case of the said Spurlock and
others against Calvin C. Crane, under the rules of practice.
The land involved is the S. i of the SE. J of Sec. 30, T. 27 N., R. 4
E., Perry land district, Oklahoma.
It appears from the papers transmitted that on July 25, 1896, your
office affirmed the decision of the local officers, dismissing Spurlock's
contest of Calvin C. Crane's homestead entry, for the S. J of the BE. \
of said section 30, and on December 3, 1896, your office denied a motion
for review of said decision on the part of 9aid Spurlock.
On February 5, 1897, Spurlock filed in the local office an appeal from
your office decision of July 25, 1896, and Nicholas Biehler, in whose
favor you had decided the case, filed a motion to dismiss said appeal :
to which Spurlock's attorneys filed an answer, supported by the affi-
davit of one of said attorneys, firom which it appears that the decision
of your office was personally served upon said attorneys on August 14,
1896, and that, on September 12, following, they filed a motion for
review and rehearing; that this motion was denied on December 3,
following, and notice of decision personally served on the attorneys on
December 26, following; that the appeal was not filed until February
5, 1897, sixty-nine days from the day of the service of the decision dis-
missing the contest, up to and including the day that said appeal was
served upon Biehler, for which reason the motion to dismiss the appeal
was made. As an excuse for the failure to file and serve the said
appeal within the time allowed, it is stated in the affidavit referred to
that said attorney was in the habit of making memoranda of cases
upon a desk-calendar; that owing to the fact that the time for taking
an appeal passed into the year 1807, and a new calendar not being
available, he attempted to keep temporary memoranda in a blank book,
until he could get a new calendar, and in this way a mistake as to date«
occurred.
By your office decision of May 3, 1897, your office sustained the
motion to dismiss the appeal, on the ground that the appeal was clearly
not filed in time, and refused to forward the appeal to the Dej^artment.
DECISIONS RELATING TO THE PUBLIC LANDS. 571
lu the case of Dean v. Simmons^ 15 L. D., 527, there was no objection
to the granting of the writ, and it was held that an application for
certiorari may be allowed in behalf of a party whose failure to appeal
in time is due to a mistake that is satisfactorily explained, when such
action would not result in injury to innocent parties.
In the case of Silverman i\ Northern Pacific Eailroad Company, 17
L. D., 63, it was held that, appellee having waived his right to insist
upon the failure to file the appeal within the time required by the rules
of practice, an application for certiorari may be allowed when the fail-
ure to appeal within the time has been satisfactorily explained.
In the case of Julien v. Hunter, 18 L. D., 151, it is said:
The case of Dean v, Simmons (15 L. D., 527), presented a question somewhat similar
to this. In that case, the attorney accepted notice of decision on the 24th of March,
1892, bat minuted the date of such acceptance upon his contest docket as March 31, —
just one week later. His appeal was rejected for not having been filed in time. Upon
application for certiorari, the Department held that the writ might be allowed in
such a case, where the mistake was satisfactorily explained, and where such action
would not result in injury to innocent parties. In that case, there was no objection
to the granting of the writ, while in the case at bar there is a formal motion for the
dismissal of the appeal. The rule of that case, therefore, cannot be applied here*
on account of the exception therein provided for.
But no reason is given why the rule should not be applied, and, in
my opinion, where the failure to appeal in time is due to accident or
mistake which is satisfactorily explained, as in this instance, certiorari
should be allowed, when such action will not result in injury to inno-
cent parties, which it is not pretended would be the case should the
writ be granted.
But unless it is shown by the petitioner that the decision complained
of was erroneous, certiorari will not be granted, although your office
may have erred in declining to transmit an appeal. Whiteford r. John-
son, 14 L. D., 67; Blackwell Townsite v. Miner, 20 L. D., 544.
It is settled that the concurring findings of the local officers and your
office are accepted by the Department, unless shown to be wrong. But
it is alleged by the petitioner :
That the Honorable Commissioner, as affiant believes, failed to make a proper
examination of the evidence in this case as shown by the record, and failed to make
iin dings upon important facts which are sworn to in the record and are uncontra-
dicted and undisputed, and which if findings had been made thereon would have
clearly established the right of your petitioner to said land, in this, to wit, that the
Honorable Commissioner failed to note and consider the testimony of the witness
W. £. Spurlock as found on pages 71 and 72 of the record, a copy of which testimony
is hereto attached, made a part hereof, and marked exhibit '^F,*' and that your
petitioner, had in his brief filed before the register and receiver and also in his brief
filed before the Honorable Commissioner called attention to this testimonv, and
pointed out the page of the record on which the same could be found.
It appears from the decision of your office, on the motion of the
petitioner for review of your office decision of July 25,' 1896, as set out
by the petitioner, that the petitioner charged in his motion for review,
572 DECISIONS RELATING TO THE PUBLIC LANDS.
among other thiDgs, that yonr office erred ^^in not finding that be had
a camp and a portion of his famii^'on the land from September 16, 1893,
until his actual residence," and that you refused to consider the objec-
ti(»n because the petitioner failed "to point out any evidence whatever
from which the findings of facts as made'^ by your office "might be in
any wise altered."
But the petitioner now adduces extracts, which he alleges are taken
from the testimony of his son, W. E. Spurlock, who was examined in
his behalf, at the hearing, as proof of the charge that yonr office failed
"to make findings upon important facts which are sworn to in the
record and are uncontradicted and undisputed, and which, if findings
had been made thereon, would have clearly established'^ his "right to
said land.^
The petitioner, in his affidavit of contest, alleges that on September
l(i, 1893, he settled upon the S. * of the SE. J of Sec. 3t) and the X. i
of the NE. J of Sec. 31.
No doctrine is better settled than that the notice given by settlement
and improvements extends only to the technical quarter section upon
which they are located. Peasley r. Whiting, 18 L. D., 356; Miles r.
Waller, 16 L. D., 12; Staples v. Richardson, Id., 248; Pooler t?. Johnston,
13 L. D., 134; Shearer r. Rhone, Id., 480; Hemsworth r. Holland, 7 L.
D., 76; L. R, Hall, 5 L. D., 141 ; Reynolds r. Cole, Id., 555. In the case
last cited it is said :
The tracts in qaestion He within that part of said ahandoned military reservation.
Cole alleged settlement on October 1^ 1882, and continuous residence from that date.
Keynolds alleged settlement on July 30, 1882, and cultivation of sixteen acres each
year since settlement. The conilict between said entries is as to said lots 2 and 3.
On appeal from the local office Reynolds asked that a hearing be ordered to determine
the truth of his said allegations.
Your office, by letter of December 26, 1885, affirmed the action of the local office in
rejecting the application, and refused to order a hearing, ns Reynolds did not claim
actual residence on the tract, or "state where his improvements lie.^'
It is clear Reynolds' application can not be allowe<l as made, for the reason that it
conflicts in part with the prior entry of Cole.
On appeal to the Department, he does not claim that any of his improvements are
on the land covered by the entry of Cole, nor even that they are in the quarter sec-
tion containing that entry. I must therefore hold that he has not furnished proper
gi ounds for a hearing to determine his rights as against those of Cole. His improve*
ments may be altogether in section 1. It was held in the case of L. K. Hall (5 L. D.,
141), that the notice given by settlement and improvement extends only to the quar-
ter section as defined by the i>ub]ic surveys within which they are located.
It is not pretended that the evidence adduced shows that Biehler
had actual notice that Spurlock (claimed the 8. i of the SE. J of sec-
tion 30, and under the decisions cited the notice given by his settlement
and improvement on the N. i of the NE. J of section 31, extended only
to the quarter section upon which they were located, and did not extend
to the quarter section in question. If it be assumed that the testimony
of W. E. Spurlock, submitted with the petition, is true, does the wit-
ness swear that either he or his brother remained on the quarter section
DECISIONS RELATING TO THE PUBLIC LANDS. 573
in controversy, after the departure of his father froui his claim? He
is asked, ''Where did you remain while your father was gone to Perry
to file!" and replies, "I staid on the claim, most of the time." But he
does not say he staid on the quarter section in controversy. "When
you left the claim on Wednesday, did you leave any one in charge of
it ! " " Yes, sir." " Who ? " " My brotlier." But he does not say that
his brother staid on the quarter section in dispute. He swears that he
returned to the claim on Thursday and brought the lumber with him,
but he does not say he brought the lumber upon the quarter section in
question. Asked " What improvements, if any, did your father make
on this claim on Friday, 22nd day of September, 1893?" he answers:
"He built a small house, started a well." Now it will be observed that
both the local officers and your office found that he established his resi-
dence, not upon section 30, but upon section 31 . With what plausibility
can it be asserted that these extracts show that in the decision com-
plained of your office failed to make findings upon important facts^
which if findings had been made thereon would have clearly established
the right of the petitioner to the S. i of the SE. J of section 30, the
land in controversy, or that they show that the concurring findings
of the local officers and your office are wrong.
I am, therefore, of opinion that the petitioner has not shown that the
decision complained of was erroneous (14 L. D,, 67), or that it did not
"render substantial justice in the premises." (20 L. D., 544.)
On the fifth ground of error assigned very little need be said. It is a
general rule of law that i)ublic officers are presumed to do their duty as
the law requires (Lawson on Presumptive Evidence, page 63), and in
the absence of evidence to the contrary it must be presumed that the
register and receiver rightly performed their duty according to law and
the rules of the Department.
For these reasons said petition is denied.
CILiVRACTER OF I.AXI>— SECOXI> HEARIXG.
Leach et al. r. Potter.*
In a hearinp^ ordered to deteruiiiio tho alleged known mineral character of land
embraced in an a<^ricultural entry, made at the conclusion of a prior contest
involving the character of the land, the evidence nnist be confined to discoveries
after the date of the first hearing, and [trior to the allowance of the entry.
Acting Secretary Reynolds to the CommiHsioner of the General Land
Office, August 28, 18!)6. (E. B., jr.)
This is an ap])eal from your office decision of October 10, 1895, in a
proceeding to determine whether the land claimed by Merwin Leach,
Mary Prosser, Elizabeth Jones, Theodore Etling and Thomas George,
and known as the Mammoth and the St. George mining claims, is more
* Not heretofore reported.
574 DECISIONS RELATING TO THE PUBLIC LANDS.
valuable for its minerals than for purposes of agricaltnre. Tbese
claims are inclnded within the SE. ^ of the SW. |, section 26, the £. |
of the N W. J and lot 1 of the S W. J of section 35, T. 8 N., B. 10 E.,
M. D. M., Sacramento, California, land district, for which tract Frank
M. Potter made commnted cash entry No. 4714, September 24, 1894.
As api)ear8 from the record the character of the land covered by
the Mammoth and St. George (the latter then known as the Thomas
George) lode locations has already been the subject of departmental
decision (Etling et aU r. Potter, 17 L. D., 424). That decision, dated
October 17, 1893, which held the land to be more valuable for affricnl-
tural puri)oses than for its minerals, was conclusive as to the character
thereof up to the close of the inquiry in that case, which was in Jane,
1890, and precluded the consideration thereafter of any evidence on
that point relating to any period prior to that time (Stinchfield r.
Pierce, 19 L. D., 12, and Dargin et ah v. Koch, 20 L. D., 384). It is a
well settled general rule that statutory reservation (section 2318 B. S.)
of lands valuable for minerals from sale, except under the mining laws,
is operative as between contending mineral and agricultural claimants
only as to lands known to be more valuable for their minerals at date
of sale, that is, at the date of the certificate of final entry. In view
of the said decision and rule, no evidence of any discovery, develop-
ment, or exploitation on said land, prior to June, 181)0, or subsequent
to September 24, 1894, was properly admissible or could properly be
considered in reaching a judgment in this case.
On September '29, 1894, a few days after Potter's final entry had been
made, the mineral claimants named above filed their sworn |>etition,
alleging, among other things, ownership of the Mammoth and St. George
lode locations, that the land embraced thereby was more valuable for
its minerals than for puri)oses of agriculture, and was known to be so
at date of said entry, that development work and explorations on the
location since the last hearing had more clearly demonstrated the exist-
ence of gold therein in paying quantities, and that the known charac-
ter of the land had materially changed by reason thereof since the close
of the last inquiry, and asking that a hearing be held to determine the
facts in the premises. A hearing was thereupon duly ordered and
held, and upon consideration of all the evidence before them, and after
their x>ersonal inspection of the land, the local officers, December 12,
1894, decided in favor of the mineral claimants and recommended that
said lode claims be segregated from the tract entered by Potter and
his entry canceled to that extent. Your said office decision reversed
the decision of the local office, and hence the appeal by the mineral
claimants.
The work done on or in connection with these mining claims during
the period between the date of the previous hearing and the date of
entry discloses practically nothing new as to their mineral value. The
only work on the claims during that period consisted in extending and
DECISIONS RELATING TO THE PUBLIC LANDS. 575
deepening, somewhat, certain tannels and shafts previously begun, to
the extent necessary to comply with the law (section 2324 E. S.) requir-
ing not less than one hundred dollars worth of labor or improvement
on ec'ujh mining claim each year. Ko new discovery of valuable mineral
is shown during that period, nor was the exact or approximate value
of any ore obtained from either location determined by any test. The
"colors'' obtained by the crushing and pounding process testified to by
witnesses Wilcox and Ball, for the mineral claimants, were not obtained
until February, 1895, nor was the milling test of nearly six dollars per
ton from samples of ore taken from the St. George made until during
that month.
The land is shown to be rough, lying mainly on steep hillsides and of
comparatively small value for agricultural purposes, but the evidence
iu behalf of the mineral claimants does not meet the very reasonable
and proper test announced in Castle v. Womble (19 L. D., 455), which
is, that
where minerals have been found and the evidence is of such a character that a per-
BOD of ordinary prudence would be justified in the further expenditure of his labor
and means, with a reasonable prospect of success, in developing a mine, the require-
ments of the statute have been met.
The decision of your office is therefore affirmed.
REPAY»rENT— I>ESERT I^ANB ENTRT. .
John C. Angell.
A desert entry of land embraced within a prior pre-emption filing is not an entry
'* erroneously allowed" within the meaning of the repayment act, though an
entry so made is subject to the subsequent assertion of the pre-emptor's right.
If a pre-emption claimant for ofi^ered land fails to assert his right of purchase within
the statutory period, an intervening desert land entry will defeat said right;
and if the entryman thereafter voluntarily relinquishes his entry, he is not enti-
tled to repayment on the ground that his entry was canceled ''for confiict.''
The provisions of 2362, R. S., and of the act of June 16, 1880, with respect to repay-
ment, contemplate relief only iu cases where, for some reason not within the
entryman's control, title to the land cannot be passed by the government.
Secretary Bliss to the Commissioner of the General Land Office^ June 29^
(W. V. D.) 1897. (F. W. C.)
On January 26, 1897, John 0. Angell filed in your office an applica-
tion bearing date January 25, 1897, for repayment of $120 paid by him
on July 25, 1887, upon making desert land entry No. 771, of the N. J
and the SW. J of Sec. 14, T. 18 S., E. 18 E., Mt. Diablo meridian,
Visalia land district, California, containing four hundred and eighty
acres.
On February 3, 1897, your office denied Angell's application for
repayment.
576 DECISIONS RELATING TO THE PUBLIC LANDS.
A motion for review of said decision was denied by your office on
March 3, 1897, and tliereui>on Angell appealed to this Department.
The facts affecting this matter briefly stated are: Prior to any of the
filings or entries herein named, the lands involved became what is
known as offered lands.
September 24, ISSG, Manuel M. Nunes filed in the local office a pre-
emption declaratory statement covering the NW. ^ of said sectiou,
alleging settlement thereon that day.
November 10, 188(>, Antonio S. Nunes filed his pre-emption declara-
tory statement covering the SW. ^ thereof, alleging settlement October
10, 188(1.
July 25, 1887, Angell made desert entry of the land included in tlie
two pre-emption declaratory statements, and also of the XE. J of said
section.
January 25, 1890, cash certificate was issued to Manuel M. Kanes
upon proof and payment under his declaratory statement.
May 2G, 1890, Angell filed an affidavit and application for a cancel-
lation of the cash entry of Manuel M. Nnnes, stating —
That said township is ofi'ered land and had said Nunes any claim to said land he
should have presented his proofs on or before September 24, 1887, one year after his
alleged settlement on said land. That the proofs of said Manuel M. Nunes Trere not
made nor his entry accepted until forty months after his alleged settlement on said
land. I therefore ask that said cash entry .... be canceled and that my desert entry
No. 771 be allowe<l to remain intact.
No action was taken upon this afiidavit and application, for the rea^^on
that on June 25, 1890, Angell filed a written witlidrawal in which his
purpose in so doing is thus stated by him:
Having this day abandoned all my right, title and interest to said laud and to the
whole of said desert land entry No. 771, do cancel the same of record this day and
have sold all my improvements and claim thereto to said Manuel M. Nunes.
The relinquishment referred to was filed the same day in the local
office and is as follows :
I^ John C. Angell, who on the 25th day of July, 1887, filed in the U. S. Laud Office
Visalia, Cal., desert land entry No. 771, upon the N. i and SW. i of Sec. 14, Twp.
18 S., K. 18 K., M. D. M., do hereby abandon and relinquish said deseTt land entry
No. 771, aud the land embraced thereby and request that the same be canceled upon
the records of the U. S. Land Office.
Witness my hand, this 5th day of May, A. D., 1890.
John C. A^geij..
This relin([ui8hment bears a certificate showing that its execution
was acknowledged by Angell before a notary in Ban Francisco, on the
day it was signed, viz., May 5, 1890.
Upon the filing of the relinquishment, and solely because thereof,
AngelPs entry was canceled.
At the time of the filing of Augell's relinquishment, and apparently
as a part of one transaction, Antonio S. Nunes made homestead entry
of the SW. :J, being the same tract theretofore embraced in his pre-
DECISIONS RELATING TO THE PUBLIC LANDS. 577
«
euiption declaratory statement, and Manuel M. Nnnes made homestead
entry of the NE. |, the remaining tract included in Angell's desert
entry.
Under the desert laud act (19 Stat., 377), the time for reclaiming the
land under the Angell entry would have expired July 25j 1890, so only
one month thereof remained when the relinquishment was filed. The
fact that the relinquishment was executed and acknowledged May 5^.
1890, shows that the abandonment of the entry by Angell was in con-
templation before his attempted contest against the cash entry of
Manuel M. Nuues.
Instances in which repayment is authorized in cases like this are
described in the statute (21 Stat., 287), as follows :
All oases -where . . . desert and entries .... have heretofore or shall hereafter
be canceled for conflict, or -where, from any cause, the entry has been erroneously
allowed and cannot be confirmed.
The filing of a pre-emption declaratory statement was not an entry
of the land. Ever since the enactment of the pre-emption law it has
been uniformly held by the land department that the filing of such
declaratory statement does not segregate the land involved and does
not withdraw it from entry. No decision to the contrary is attempted
to be cited. A declaratory statement was an assertion by the pre-
emptor of an intention to thereafter enter the land. That intention
might be either carried into execution or abandoned. It has been the
uniform practice in the land department to permit entries under the
homestead, desert and timber-culture laws of land embraced within
existing preemption declaratory statements. These entries have always
been treated as subject to the claim of the pre-emptor, and if he sea-
sonably made his cash entry thereunder, any intervening entry of the
same land was thereby defeated. If the pre-emptor failed to make his
cash entry, the intervening entryman took the land. As to all persons
other than the pre-emptor the intervening entryman had the prior
and better right.
The allowance, therefore, of Angell's entry by the local land office
was proper. It was not the case of an entry " erroneously allowed'^
within the meaning of the repayment statute. It was an entry in the
allowance of which no error was committed.
Angell's desert entry was not "canceled for conflict" but was can-
celed because of his voluntary relinquishment. Had either of the
I)re-emption claims rightfully proceeded to final proof, payment and
entry before Angell's relinquishment, then, and not until then, there
would have been a conflict between such pre-emption entry and the
desert entry of Angell. The conflict so resulting would have required
the cancellation of the desert entry to the extent that the same included
land embraced within the pre emption entry, and upon such cancella-
tion a right to repayment would have accrued under the statute.
10671— VOL 24 37
£78 DECISIONS RELATING TO THE PUBLIC LANDS.
Section 2264 of the Revised Statutes regalating the entry of offered
land under the pre-emption law, provides:
When any person settles or improves a tract of land subject at the time of aettle-
ment to private entry, and intends to purchase the same ander the preceding pro-
irisions of this chapter, he shall, within thirty days after the date of such settlement,
file with the rei^ter of the proper district a written statement, describing the laml
: settled upon and declaring his intention to claim the same under the pre-emption
laws; and he shall, moreover, within twelve months after the date of such settle-
-juent, make the proof, affidavit, and payment hereinbefore required. If he (aHa to
file SQch written statement, or to make snch affidavit proof and payment within the
several periods named above, tbe tract of land so settled and improved shall be sub-
ject to the entry of any other purchaser.
This statute required Manuel M. Nunes and Antonio S. Nanes,
respectively, to make proof and payment within twelve months after
settlement, in default of which tbe land became '^ subject to the entry
of any other purchaser." Neither Manuel M. Nunes nor Antonio S.
Nunes made proof or payment within the time required. By reason of
such failure, the laud became subject to the entry of Angell, he being
a conditional purchaser under tbe desert land act. The prc-emptors
thereby lost their preference right under their declaratory statements
and tbe better right to the land passed to AngelL
It appears that the local office, notwithstanding this, erroneously
permitted Manuel M. Nunes to make proof, payment and cash entry
under his declaratory statement on January 25, 1890. As before
stated, Angell made application to have this cash entry canceled
because of this error, but before it was acted ui>on he voluntarily with
drew his application, stating that he bad sold his claim to the pre-
emptor. At the same time he voluntarily relinquished his entire desert
entry, the relinquishment being so connected with the immediate entry
of the remaining portions of tbe land as to enforce the belief and con-
clusion that Angell fully acquiesced in tbe taking of the land by others.
No part of his entry was canceled for conflict and no part thereof
could have been so canceled, after tbe Nunes made de&ult. Had
Angell stood upon his rights, the resulting cancellation would not have
applied to any part of his entry, but would have destroyed the cash
entry of Manuel M. Nunes.
The act of June 16, 1880, as originally introduced in the House of
Bepresentatives, authorized repayment:
Where . . . desert land entries . . . Lave heretofore or shall hereafter be caneeltHl
for conflict, or have been abandonedy or where, ftom any caase, the entry has been
erroneously allowed and cannot be confirmed.
The Committee on Public Lands recommended that the words "or
have been abandoned," be stricken out which was accordingly done by
amendment. (Cong. Kec, 2 Sess. 46th Cong., Pt. 4, p. 3594.) This
shows that tbe cancellation of an entry because of tbe abandonment
thereof by the entryman was not intended to make a case for repay-
jnent. That a relinquishment is an abandonment needs no demonstra-
DECISIONS RELATING TO THE PUBLIC LANDS. 579.
tion, but if it did, it woald be sufficient in this case to refer to the
language of Angell's relinquishment hereinbefore set forth. In the
light of the change made in this act during its consideration by Oon*
gress, it is clear that a cancellation because of a relinquishment is not
a cancellation for conflict.
Counsel for Angell calls attention to section 2362 of the Bevised
Statutes, and urge that the present application comes within the terms
thereof. The section is as follows:
The Secretary of the Interior is anthorized, upon proof being made, to his satis-
faction, that any tract of land has been erroneously sold by the United States, so
that from any cause the sale cannot be confirmed, to repay to the purchaser, or to his
legal representatives or assignees, the sum of money which was paid therefor, out
of any money in the Treasury not o'therwise appropriated.
There was no desert land act until 1877, aud the conditional sale
made to Angell is not one of the sales in contemplation either when
this section was originally enacted, or when it was included within the
revision. Desert entries are specifically included in the repayment act
of June 16, 1880 (21 Stat., ^^'^)y ^i^d under these circumstances a ques-
tion may arise as to whether the later and specific act does not make
exclusive provision with reference to repayment in cases of desert
entry. However that may be, section 2362 only authorizes repayment
where "any tract of land has been erroneously sold by the United
States so that, from any cause, the sale cannot be confirmed." The
fact that a sale is errooeous is not sufficient to bring it within the
statute; it must, also, be one which cannot be confirmed. Obviously,
there is no occasion to include the case of an erroneous sale, if, not-
withstanding the error, tbe sale can be confirmed and thereby full title
be securely vested in the purchaser. It was not the intention of Con-
gress to authorize repayment in instances where the entrymau can
obtain full title but does not want it.
What has heretofore been said indicating that Angell's entry was not
"erroneously allowed'' equally shows that the land was not "erroneously
sold." But if it be conceded that the land was "erroneously sold,"
within the meaning of section 2362, that error, when considered with
the subsequent facts in this case, was not such as would prevent con-
firmation of the sale. Angell's entry could have been completed and
the land sold to him under the desert land act, if he had not acquiesced
in its going to others. After having obtained the better right to the
land he should not be permitted to sell that better right, thereby making
it a matter of pecuniary benefit to himself, and at the same time obtain
repayment from the government on the theory that he paid for the
land and obtained no right thereto.
The purpose of the repayment statutes is to reimburse one for money
paid as the purchase price for land, only when, for some reason not
within the control of the entrymau, title to the land cannot be passed
by the government.
580 DECISIONS RELATING TO THE PUBLIC LANDS.
It should be observed, that auder the act of Jane 16, 1880, the erro-
neous allowance of an entry does not alone authorize repayment, the
entry must also be one which cannot be confirmed. If, despite the
error in its allowance, the entry can be confirmed, there is no reascHi
for repayment, and the statute does not authorize it The two statutes
are in this respect identical. AngelFs case does not come within either
of them.
Your office decision is hereby affirmed.
SWAZB 9. SUPBENANT.
Motion for review of departmental decision of April 21, 1897, 24 L.
D., 337, denied by Secretary Bliss, June 29, 1897.
OKXiAHOMA TOWNSrrE»-OnEROKEE OXJTIiET.
Northeast Pebby.
Towntite entricM in the Cherokee Outlet can only be made through townsite boards.
Secretary Bliss to the Commissioner of the General Land Office^ June 29j
(W. V. D.) 1897. (C. J. W.)
On December 10, 1896, townsite board of trustees "So. 6, as successors
to board No. 8, filed application in the local land office at Perry, Okla-
homa, to purchase and make entry of the SW. i of Sec. 14, T. 21 X.,
R. 1 \V., for the benefit of and in trust for the use of occupants thereof,
in accordance with the act of May 14, 1890 (26 Stat., 109). After proper
notice said board offered final proof, on December 28, 1896, and made
cash entry No. 125. On said 28th of December, counsel claiming: to
represent the occupants of said land appeared and protested against
the final proof, cross-examined the witnesses introduced by the board,
and introduced testimony which accompanies the final proof and is a
part of the record. The local officers dismissed the protest and accepted
the final proof, and an appeal was filed in the name of the townsite set-
tlers of Northeast Perry. On February 10, 1897, your office declined
to consider said appeal, and approved the final proof ofifered by the
board. A similar appeal has beeu filed from your office decision.
The land in controversy was a part of the Cherokee Outlet and was
originally included in the homestead entry of John J. Malone, and was
the subject matter of controversy between certain persons claiming to
be townsite settlers and Malone^s representatives, which resulted in the
cancellation of Maloue^s entry (23L. D., 87). llie land was at that
time within the corporate limits of Perry.
It is said in that case:
For the reasons above glFen Malone's entry will be canceled, and the ooiporate
aathorities of the town of Perry will be advised that upon a i»roper showing and
application, the land may be entered for the several use and benefit of the inhab-
itants thereof.
DECISIONS RELATING TO THE PUBLIC LANDS. 581
The land was treated as set apart and subject to acquisition by the
townsite of Perry for the use and benefit of its inhabitants, such inhab-
itants as were upon the land^ having been included within the corporate
limits of that town.
One of the grounds of the protest filed is, that the application to
make the entry by the board is at the instance of citizens of Perry.
The protest is in the form of a petition, and asks for delay in anticipa.
tion of changes in the law as to the mode and manner in which town-
site entries are to be made. It is said that said entry can be made
much more cheaply to the lot occupants through the probate judge than
through the townsite board. The protest and api>eal contain only
grounds which might properly be addressed to Congress in the form of
a petition to change the law. This Dei)artment has no power to change
the law; nor can it suspend public business merely to await desired or
contemplated changes. It was announced in instructions issued Feb-
ruary 14, 1894 (18 L. D., 122), that townsite entries in the territory
known as the Cherokee Outlet could be made only through townsite
boards, and that rule has been adhered to, and the local officers as well
as your office properly followed it, and overruled the protest in this
case. The final proof is satisfactory, and your office decision approving
cash entry !No. 125, for patenting, is affirmed.
Henley et al. t?. Shabpnack.
Motion for review of departmental decision of March 26, 1897, 24
L. D., 315, denied by Secretary Bliss, June 29, 1897.
SCHOOL LANI>— SETTLEMENT BEFORE SURVEY.
Francis P. Carlisle.
a parchase, after survey, of tbe posseeBory right .-md improvements of oue who set-
tled on school land prior to survey, does nut carry with it any right to the land
as against the school grant.
Secretary Bliss to the Commissioner of the Gmieral Land Office^ June 29 ^
(W.V.D.) 1897. (C.J.G.)
«
The land involved in this case is the W. ^ of NW. J and W.J of
SW, i Sec. 36, T. 1 8., R. 1 W., Salt Lake City land district, Utah.
Francis P. Carlisle has appealed to this Department from your office
decision of December 9, 1895, holding for cancellation his homestead
entry for said land.
It appears from a corroborated affidavit iiled with said appeal that
one Thomas Howard settled on said land in the year 1851 and had
continaous residence thereon until the year 1883, when he sold his
improvements to one Ephraim Bayliss. The latter resided upon and
582 DECISIONS RELATING TO THE PUBLIC LANDa
cultivated said tract until the year 1887, when be in turn sold his
improvements to the appellant herein, Francis P. Carlisle. Carlisle
has resided upon and cultivated said land ever since, and has improve-
ments thereon valued at $2,500.
The land described herein is in a section reserved for school purposes
under section 1946 of the Bevised Statutes.
The act of February 26, 1859 (11 Stat, 385— now Sec. 2275 R. S.),
provides :
That where settlementa with a view to pre-emption have been made before the
Burrey of the lands in the field, which shall be found to have been made on sections
sixteen or thirty -six, said sections shall be subject to the pre-emption claim of sneh
settler; and if they, or either of them, shall have been or shall be rcMerreil or pledged
for the use of schools or colleges in the State or Territory in which the lands lie,
other lands of like quantity are hereby appropriated in lien of such as may be pat-
ented by pre-emptors.
It is contended by the appellant that he is protected by the above
act. This contention is not well founded. By reference to said act it
will be seen that the protection extended therein is limited to those
who have made settlement with a view to pre-emption before the Rur-
vey of the lands in the field. The survey of the land in question was
made in the year 1856. This being before Carlisle's settlement he is
not protected by the provisions of said act. It is well settled by
numerous departmental decisions that '^ a purchase after survey of the
possessory right and improvements of one who settles on school land
prior to survey, does not carry with it any right to the land as against
the school grant." Hence, the appellant herein, being merely the pur-
chaser of the possessory right and improvements of one who settled
prior to survey, does not thereby secure any right to this land as against
the school grant. The question is settled by Gk>nzales v, French (164
U. 8., 338).
Your office decision is accordingly affirmed.
OKLAHOMA TO WNSITB-TRUSTEES— DISCHARGE.
TowNsiTE Board Number Six.
A townHite board of trustees shoiilil not be discharged from any portion of tbe tmat
imposed upon it, until the whole purpose of the trust is accomplished, or until
such time as it may be relieved entirely from its duties.
Secretary Bliss to the Commissioner of the General Land Office^ June 29,
(W.V.D.) 1897, (P.J.C.)
I am in receipt of your office letter ("G") of May 25, 1897, wherein is
transmitted certain correspondence of Horace Speed, of Guthrie, Okla-
homa, and townsite board No. 6.
It appears that Mr. Si)eed addressed said board as to the advisability
of the board asking for its discharge as a board for fiurther service as
to the south half of East Guthrie. In so far as the government would
DECISIONS RELATING TO THE PUBLIC LANDS. 583
be interested in the discharge of the board from this service, it is stated
that all their duties in relation to this particular jportion of Guthrie are
at an end, for the reason that all the lots have been transferred. In
addition to this, it is suggested that if the board were discharged cer-
tain litigation now pending in the courts of the Territory, wherein i»
involved the title to the south half of East Guthrie, would lapse.
By letter of May 18, 1897, to Mr. Speed, the chairman of the board
doubted the advisability of the board making such a recommendation
to the Secretary of the Interior.
On May 19, Mr. Speed forwarded the former correspondence with the
request that the board be discharged as to the portion of East Guthrie
mentioned, and on its receipt the matter was, by the First Assistant
Secretary, referred to your office for an early report. Your said office
letter of May 25, is in answer to this request.
It appears that the predecessors to the present board made entry of
the west half of Sec. 9, Tp. 16 N., R. 2 W., as the townsite of East
Outhrie, under the act of May 14, 1890 (26 Stat, 109), and the land was
patented to them as trustees, in trust for the several use and benefit
of the occupants thereof according to their respective interests.
In your said office letter it is said :
It appears that Mr. Speed's statement^ that the daties of the board as to the south
half of East Guthrie are ended, is correct, aU lot occupants in same having been
ascertained and deeds issued to them. As to said land, then, if the trust, by the
execution of the power by the trustees, has ended, the action of this office attempt-
ing to discharge them from such trust would be of no avail.
But, if the members of said board could be considered to yet be trustees for said
south half of East Guthrie, and it be yet necessary to formally absolve them from
their trust as to said land before such trust could cease, there >«'onld be an obstacle
in the way of taking that action. The trustees of towuHite board No. 6 wer&
appointed trustees for the whole townsite of East Guthrie. They should not be dis-
charged, then, from any portion of said trust until the whole purpose of the trust
is accomplished, and said trustees yet have work in the north half of the townsite
from which it would be impracticable to discharge them.
For the reasons stated above, and for the further reason that I hold it doubtful
if the Department would be justified in granting a re<]uest of a nature calculated
to interfere with the administration of justice by the courts, I have respectfully to
report that I think Mr. Speed's request should bo denied.
I concur in your recommendation. Aside from the impropriety of
the Department taking any action that might interfere with the status
of a case in the courts, it seems to me that the board should not be re-
lieved of its duties until the trust is executed. By operation of law the
board would not have any jurisdiction, perhaps, over any lots, title to
which had passed from it, but the trust reposed in it is an enduring
one as long as there remains anything to be done, or until such time as
it may be relieved entirely from its duties. Because one lot or any
other i)ortion of the townsite has been conveyed and the board's juris-
diction thus ended as to the portion so conveyed, is no reason for mak-
ing a formal order of discharge. If the transmission of title to any
584 DLCISIONS RHLATING TO THE PUBLIC LANDS.
portion of the towiisite operates to divest the board's jurisdiction as to
said portion, such an order is not needed, would be superfluous, and
the making thereof would unnecessarily consume time which is required
for other purposes.
HOMESTEAD CONTEST - SETTLEMENT RIGHTS.
Haxl r. Mitchell.
Acts of settlement performed by one claiming the right to make a second homestead
entry, prior to his application for the exercise of snch privilege, are not iu valid,
if it is found that the settler is in fact entitled to make sach entry.
The case of Cawood v. Damas, 22 L. D., oSS, cited and distinguished.
A contest against a homestead entry, on the ground of priority of settlement, must
fail, if the allegation is not made good by some preponderance of the evidence.
Secretary Bliss to the Commissioner of the General Land Office^ June 30^
( W. V. D.) 1897. (C. J. W.)
W. N. Mitchell, on September 19, 1893, made homestead entry, No.
277, for NE. J, Sec. 11, T. 21 X., R. 2 E., at Perry, Oklahoma, which
tract was a part of the Cherokee Outlet, opened to settlement Septem-
ber IG, 1893. On September 27, 1893, Aurelius C. Hall filed affidavit of
contest against said entry, alleging prior settlement and petition to
make second homestead entry. A hearing was had, at which both
parties appeared, and the plaintiff submitted his testimony, at the
close of which defendant moved to dismiss the contest on the ground
that plaintiff was not a qualified settler at the time of his alleged set-
tlement. This motion was sustained by the local officers, they holdinp:
that Hall was disqualified by reason of his having passed over a part
of the Cherokee Outlet subsequent to March 3, 1893, and prior to Au-
gust 19, 1893, and that he had made homestead entry on October 28.
1891, for the NW. J, Sec. 33, T. IG :N^., R. 5 E., at Guthrie, Oklahoma,
which he subsecjuently relinquished. This action was appealed from,
and on February 2, 1895, your office reversed the local officers and
directed that the defendant be allowed to submit his testimony, and
that a decision be then rendered on the merits of the case. This hear-
ing was duly had, and defendant submitted his testimony, and plaintiff
submitted rebutting testimony, and on June 20, 1895, the local officers
rendered a decision in favor of defendant.
From this decision plaintiff ai)pealed, and on February 20, 1896, your
office modified said decision, substituting therefor, an equitable divi-
sion of the land between the i)arties. From this decision both i>arties
have appealed. Each party insists that he was the first settler and
therefore entitled to the whole tract, and this is the vital issue in tlie
case. Each party raises a collateral issue against the other, Mitchell
insisting that Hall was not qualified to make settlement because his
alleged settlement ai'tedated his application to make second homestead
DECISIONS RELATING TO THE PUBLIC LANDS. 585
entry, and Hall insistiug that Mitchell performed no acts on the land
which would constitute settlement until his return to it on the 2l8t of
September, 1893. These projjositions embody the substance of the con-
tentions of the parties.
The collateral questions raised will be first disposed of.
Your office affirmed the local officers, in holding as a matter of la^
that Hall was not disqualified to make settlement, because of having
once exercised his right of entry. If this was error then Mitchell's
entry would antedate Hall's application to make second entry. The
recent case of Cawood v. Duma« (22 L. D., 585) is cited in support of the
contention that HalFs nets of settlement, antedating his formal appli-
cation to make second entry, were illegal as. against the intervening
rights of Mitchell, whether he was held to be entitled to make second
entry or not. Reference to the facts in the case cited will show, that
Cawood was asking to amend an entry then of record, by substituting
for the land entered, the tract on which Dumas had settled. It was
not an application to make second entry. In the case of Heiskell v.
McDowell (23 L. D., 63), the question at issue was passed upon and it
was therein held:
If one ill good faith, claiming the right to make a second homestead eotry settles
upon land subject to entry and applies for the restoration of his homestead right and
permission to enter the land so settled npon and is adjudged to be entitled to make
Buch entry, such judgment validates his acts of settlement and removes from them
the presumption of invalidity.
The two cases cited are not in conflict. The rule in the Cawood
case applies to uncanceled entries, and where thiid parties might be
affected. The rule in the other case applies, where the previous entry
has been canceled, and the question is between the applicant and the
government as to whether he shall be permitted to make a second
entry. The grant or refusal of the right in such cases will depend
upon the good faith of the applicant and the cause of the loss of the
first entry, and in its settlement only the applicant and the government
are interested. The grounds on which Hall claimed this right were, it
is believed, sufficient to entitle him to it, and your office i)roperly so
held. In reference to the contention that Mitchell failed to perform
any act of settlement on the land on the day of the opening, your office
found that both parties performed acts of settlement on the day of the
opening, that both parties acted in good faith, and that the first acts of
each were so nearly at the same time, as to prevent a conclusion as to
which was the first. This includes an affirmative finding as to the suf-
ficiency of the acts of both on the day of the opening, and leaves
unsettled only the order of time in which they arrived on the land and
claimed it.
Your office properly held that each performed sufficient acts on the
day of the opening to be the basis of a valid claim, if followed up. The
evidence is voluminous, but unfortunately much of it is immaterial to
686 DECISIONS RELATING TO THE PUBLIC LANDS.
the main matter to be determined. There is substantial concorrence
between yoar office and the local office in the finding of specific facts,
so far as they are mentioned and enumerated, bat there is some vari-
ance in the deductions drawn from the facts. Both parties made the
race on horseback, and both are shown to have been well moauted.
They started from the south line of the Outlet, — Hall at a point some
distance east of a line drawn north to the land in controversy, and
Mitchell from a point about opposite the east line of the tract due north.
Hall thinks he reached the claim 33 or 34 minutes after 12 o'clock, but
did not examine his watch and could not be certain. He immediately
staked the claim; soon atter, he laid two foundations, one of which
proved to be over the line on another claim. He remained on the claim
until the middle of the afternoon of the next day, when he went to
Perry, returning on the 18th; was delayed by legal proceedings from
building, but commenced building house middle of January and com
pleted it last of that month. Has a house and barn and eighty acres
fenced with wire. Resides on the tract. Mitchell claims to have
traveled directly north over the shortest route, and to have reached and
staked the claim at 12.36 P. M., by watch set by soldier's time at the
signal point before starting, laid a foundation, and left that evening at
3 P. M., for Perry, and got number to file on; returned on the 21 st and
cut logs for a house; on the 23d did some plowing, and fenced the
claim with wire October 3, and 4, 1803. Has a dwelling house with
seven rooms, a barn and hen- house, and forty to fifty acres broken;
lives with his family on the claim.
The record has been carefully examined with a view to determining
the order of the arrival of the parties on the tract, and the precise
time at which each arrived. The exact time of HalPs arrival is not so
definitely fixed as that of Mitchell. Mitchell is corroborated as to the
time of his arrival, and some of Hall's witnesses corroborate him in
ox)iuion as to the time of his arrival, but the matter is left in doubt.
The witnesses who testify for Hall say that they did not see Mitchell
on the claim at that time, and those who testify for Mitchell did not
not see Hall. This merely negative testimony is weak and unsatisfac-
tory. Your office expressed the opinion that the record left great doubt
as to which party reached the land first. After a careful perusal of it,
I am at least unable to find any preponderance in favor of Hall, and
the entry must stand.
Your office decision, directing an equitable division of the laud, was
rendered before departmental decision in the case of Sumner r. Roberts
(23. L. D., 201), which changes the rule in this class of cases, and it is
therefore reversed, and defendant's entry held intact.
DECISIONS RELATING TO THE PUBLIC LANDS. 587
TIMBER CTTTINC— EXPORTATION.
Circular.
Department of the Interior,
General Land Office,
Washington^ D, C, June 29j 1897,
To Special Agents of the General Land Office.
Gentlemen: Yoar special attention is called to the fact that, in
various acts of Congress relating to timber on the public domain,
wherein authority is given to cut or remove such timber for any use or
purpose whatever, it is expressly provided that such timber, and the
products thereof, shall be consumed in the State or Territory in which
the same is cut, and shall not be exported or transported out of such
State or Territory. Yet numerous complaints have been received in
this ofQce that the provisions of law in this respect are being openly,
wilfully and flagrantly violated by railroad companies, mining corpora-
tions and others, and that the special agents of this office make little,
if any, attempt to prevent the same, or to secure evidence upon which
this office can recommend the institution of proper legal proceedings
against the parties guilty thereof.
You are, therefore, hereby expressly and imperatively directed to,
hereafter, use your utmost endeavors to detect and prevent any such
violations of law in the State or Territory in your charge, and to this
end you will visit the several shipping x)oints in the State or Territory
in which you are located and make personal inspection of all shipments
of timber and logs or any of the products thereof; ascertain the quan-
tity in each shipment, the name of the shipper and to whom consigned,
and all facts in regard to same that can be ascertained, keeping proper
and full notes of all information acquired, with names and addresses of
witnesses, etc.; you will then proceed to trace the timber, or its prod-
uct, back, as far as possible, to its original condition and the source
from which it was procured, and upon completion of the work, will
report all of the facts to this office, on form 4-478, for its action. Where
you have reliable evidence that any timber cut from public lands, or
any product of such timber, is being, or about to be exported or trans-
ported out of the State or Territory where cut, you will notify all parties
in interest, including the railroad or transportation company, in writing,
that such shipment is in violation of law and forbid them from proceed-
ing further therein, and will report your action to this office, submitting
therewith evidence of service of notice on the several parties.
In all such cases, where you have knowledge that parties who have
permits, or any special authority from this Department, to cut or remove
timber on the public domain, are exporting or transporting any timber
or any product thereof, out of the State or Territory, you will at once
report them to this office in order that their x)ermits or authority can be
revoked and canceled.
688 DECISIONS RELATING TO THE PUBLIC LANDS.
It is tbe determination of this Department to pat a stop to the expor-
tation or transportation of tbe public timber or tbe prodacts thereof^
from tbe State or Territory in which tbe same is produced, and the
8[)ecial agents mast direct their very best efforts to accomplish this
purpose. Any special agent who is found derelict in his duty in this
respect, will be subject to summary dismissal from the service.
Very respectfully.
BlNGKB HEBMANN,
Commissioner.
Approved,
Thos. Eyan,
Acting Secretary.
SUHVEY OF FOREST RESERVATIONS— ACT OF JTITE 4, 1897,
Instructions.
The phrase ''public lands adjacent thereto/' as used in the act of June 4, 1897, in
making provision for the sarrey of forest reserves, should lie construed to mean
townships which actually adjoin said reserves, and such townships are to be sur-
veyed under the supervision of the Director of the Geological Survey.
Secretary Bliss to the Commissioner of the General Land Office^ June 30^
(W. V. D.) 1897. (W. A, E.)
Tbe Department is in receipt of your office letter of Juue 22, 1897,
asking to be advised as to the proper construction of the phrase, '<and
including public lands adjacent thereto,'' as used in tbe act of Congress
approved June 4, 1897, entitled
An act making appropriations for sundry civil expenses of the government for the
fiscal year ending June thirtieth, eighteen hundred and ninety-eight, and for other
purposes.
Said act appropriates:
For the survey of tlie x>nblic lands that have been or may hereafter be designated
as forest reserves by executive proclamation, under section twenty-four of the act of
Congress approved March third, eighteen hundred and ninety-one, entitled **An act
to repeal timber-culture laws, and for other purposes,'* and including public lands
adjacent thereto, which may be designated for sun'ey by the Secretary of the Interior,
one hundred and fifty thousand dollars, to be immediately available.
The act further provides that:
The surveys herein provided for shall be made, under the supervision of the Direc-
tor of tbe Geologiral Survey, by 8uch person or ])ersons as may l>e employed by or
under bim for that ]mrposey aud shall be executed under instructions issued by the
Secretary of tbe Interior,
As the surveys of these timber reservations are to be made under tbe
supervision of the Director of the Geological Purvey, it is necessary that
a definite limit be fixed in regard to the *^ public lands adjacent thereto"
in order to prevent conflict between such surveys and those made under
the immediate sui>ervision of the surveyors-general.
DECISIONS RELATING TO THE PUBLIC LANDS. 589
It is suggested by yonr office that the surveyors-general be allowed
to coDtract for surveys in all townships which do not actually adjoin
the forest reservations. This would leave one tier or range of townships
or fractional townships (as the case might be, according to the order
setting apart the reservations) over which any necessary surveys may
136 extended under the supervision of the Director of the Geological
Survey as "lands adjacent thereto," while all other lands would clearly
be subject to survey under the regular appropriation, and the super-
Tisioii of the surveyors-general.
The suggestion seems to be a good one. The phrase "public lands
adjacent thereto," as used in said act, is accordingly construed to mean
townships which actually adjoin the forest reservations, and such town-
ships are to be surveyed under the supervision of the Director of the
Geological Survey.
RULES AND REGUIaATIOXS GOVERNING FOREST RESERVES ESTABLISHED
under section «4, act of march 8, 1891.
Circular.
Department of the Interior,
General Land Office,
Washington^ D. C, June 30, 1897.
1. Under the authority vested in the Secretary of the Interior by
the act of Congress, approved June 4, 1897, entitled "An act makiug
appropriations for sundry civil expenses of the Government for the
fiscal year ending June thirtieth, eighteen hundred and ninety-eight,
and for other purposes," to make such rules and regulations and estab-
lish such service as will insure the objects for which forest reservations
are created under section 24 of the act of March 3, 1891 (26 Stat., 1095),
the following rules and regulations are hereby prescribed and promul-
gated:
OBJECT OF FOREST RESERVATION.
2. Public forest reservations are established to protect and improve
the forests for the purpose of securing a permanent supply of timber
for the people and insuring conditions favorable to continuous water
flow.
3. It is the intention to exclude from these reservations, as far as
possible, lands that are more valuable for the mineral therein, or for
agriculture, than for forest purposes ; and where such lands are embraced
within the boundaries of a reservation, they may be restored to settle-
ment, location, and entry.
PENALTIES FOR VIOLATION OF LAW AND REGULATIONS.
4. The law under which these regulations are made provides, that
any violation of the provisions thereof, or of any rules and regulations
thereunder, shall be punished as is provided for in the act of June 4,
590 DECISIONS RELATING TO THE PUBLIC LANDS
1888 (25 Stat., 166), amendiDg section 5388 of the Revised Statutes,
which reads as follows:
That section fifty- three hundred and eighty-eight of the Revised Statntes of the
United States be amended so as to read as foUows: ''Every person who unlawfnlly
cnts, or aids or is employed in unlawfully cutting, or wantonly destroys or procnrcs
to be wantonly destroyed^ any timber standing upon the land of the United Stati*^
which, in pursuance of law, may be reserved or purchased for military or other pur-
poses, or upon any Indian reservation, or lauds belonging to or occupied by anv
tribe of Indians under authority of the United States, shall pay a fine of not more
than iive hundred dollars or be imprisoned not more thau twelve months, or both, in
the discretion of the court/'
This provision is additional to the penalties now existing in respect
to punishment for depredations on the public timber. The Govern-
ment has, also, all the common-law civil remedies, whether for the pre-
vention or redress of injuries, wLich individuals possess.
5. The act of February 24, 1897 (29 Stat., 594), entitled '^An act to
prevent forest fires on the public domain," provides,
That any person who Mhall wilfully or mnliciousl}* set on lire, or cause to be set on
fire, any timber, underbrush, or ^rass upon the public domain, or shall carelesnly or
negligently leave or suffer fire to burn unattended near any timber or other inflam-
mable material, shall be deemed guilty of a misdemeanor, and, upon conviction
thereof in any district court of the United States having jurisdiction of the same,
shall be fined iu a sum not more than five thousand dollars or be imprisoned for a
term of not more than two years, or both.
8ec. 2. That any person who shall build a camp fire, or other fire, in or near aur
forest, timber, or other inflammable material upon the public domain, shall, before
breaking camp or leaving said fire, totally extinguish the same. Any person failing
to do so shall be deemed guilty of a misdemeanor, and, upon conviction thereof in
any district court of the United States having jurisdiction of tLo same, shall he
fined in a sum not more than one thousand dollars, or be imprisoned for a term of
not more than one year, or both.
Sec. 3. That in all cases arising under this act the fines collectetl shall be paid
into the public-school fund of the county in which the lands where the offense was
committed are situate.
Large areas of the public forests are annually destroyed by fire, orig-
inating in many instances through the carelessness of pro?^pector!i.
campers, hunters, sheep herders, and others, \vhile in some cases the
fires are started with malicious intent. So great is the importance of
protecting forests from fire, that this Department will make special
effort for the enforcement of the law against all persons guilty of start-
ing or causing the spread of forest fires in the reservations in violatiou
of the above provisions.
6. The law of June 4, 1897, for forest reserve regulations also pro-
vides, that
The juriadiction, both civil and criminal, over persons within such reservations
shall not be afl'ected or changed by reason of the existence of such reservations,
except BO far as the punishwent of offenses against the United States therein is con-
cerned; the intent and meauing of this provision being that the State wherein any
such reservation is situated shall not, by reason of the establishment thereof, lose
its jurisdiction, nor the inhabitants thereof tlieir rights and privileges as citizens,
or be absolved from their duties as citizens of the State.
DECISIONS RELATING TO THE PUBLIC LANDS. 691
PUBLIC AND PBIVATE USES.
7. It is further provided, that
Nothing herein shall be construed as prohibiting the egress or ingress of actual
settlers residing within the boundaries of such reservations, or from crossing the
same to and from their property or homes; and such wagon roads and other improve-
znents may be constructed thereon as may be necessary to reach their homes and to
utilize their property under such rules and regulations as may be prescribed by th^
Secretary of the Interior. Nor shall anything herein prohibit any person from enter-
ing npon such forest reservations for all proper and lawful purposes, including that
of prospecting, locating, and developing the mineral resources thereof: Provided,
That such persons comply with the rules and regulations covering such forest
reservations.
The settlers residing within the exterior boundaries of such forest reservations, or
in the vicinity thereof, may maintain schools and churches within such reservation,
and for that purpose may occupy any part of the said forest reservation, not exceed-
ing two acres for each schoolhouse and one acre for i\ church.
All waters on such reservations may be used for domestic, mining, milling, or irri-
gation purposes, under the laws of the State wherein such forest reservations are situ-
ated, or under the laws of the United States and the rules and regulations estab-
lished thereunder.
8. The public in entering, crossing and occupying the reserves, for
the purposes enumerated in the law, are subject to a strict compliance
with the rules and regulations governing the reserves.
9. Private wagon roads and county roads may be constructed over
the public lands in the reserves wherever they may be found necessary
or useful, but no rights shall be acquired in said roads running over
the public lands as against the United States. Before public timber,
stone, or other material, can be taken for the construction of such roads,
permission must first be obtained from the Secretary of the Interior.
The application for su(ih privilege should describe the location and
direction of the road, its length and width, the probable quantity of
material required, the location of such material, and its estimated
value.
10. The permission to occupy public lands in the reserves for school-
houses and churches, as provided for in the law, is merely a privilege,
and is subject to any future disposition that may be made of such tracts
by the United States.
11. The right of way in and across forest reservations for irrigating
canals, ditches, flumes and pipes, reservoirs, electric power purposes,
and for pipe lines, will be subject to existing laws and regulations.
12. Under the term "to regulate their occupancy and use", the Sec-
retary of the Interior is authorized to grant such licenses and privi-
leges, from time to time, as may seem to him proper and not inconsistent
with the objects of the reservations nor incompatible with the public
interests.
13. The pasturing of live stock on the public lands in forest reserva-
tions will not be interfered with, so long as it appears that injury is not
being done to the forest growth, and the rights of others are not thereby
592 DECISIONS RELATING TO THE PUBLIC LANDS.
jeopardized. The pasturiu^ of sheep is, however, prohibited in all for*
est reservations, except those in the States of Oregon and Washington,
for the reason that sheep-grazing has been fonnd injurious to the forest
cover, and therefore of serious consequence in regions where the rain-
fall is limited. The exception in favor of the States of Oregon and
Washington is made because the continuous moisture and abuntlant
rain-fall of the Cascade and Pacific Coast ranges make rapid renewal
of herbage and undergrowth possible. Owners of sheep are required
to make application to the Commissioner of the General Land Office
for permission to pasture, stating the number of sheep and the location
on the reserves where it is desired to graze. Permission will be refosed
or revoked whenever it shall appear that sheep are pastured on parts
of the reserves specially liable to injury, or ui>on and in the vicinity of
the Bull Eun reserve. Grater Lake, Mount Hood, Mount Baini^, or
other well-known places of public resort or reservoir supply. Permis-
sion will also cease upon proof of neglect as to the care of fires made
by herders, or of the violation by them of any of the forest reserve
regulations.
BBLINQITISHMENT OF CLAIMS.
14. The law provides that where a tract within a forest reservation
is covered by an unperfected bona fide claim, or by a patent^ the settler
or owner may, if he so desires, relinquish the tract to the United States
and select in lieu thereof a tract of vacant public land outside of the
reservation, open to settlement, not exceeding in area the tract relin-
quished. No charge is to be made for placing the new entry of record.
This is in consideration of previous fees and commissions paid.
Where the entry is in lieu of an unperfected one, the necessary fees in
the making of final proof and issuance of certificate will be required.
Where the entry is based on an unsurveyed claim, as provided for in
paragraph 17 hereof, all fees and commissions attending entry must be
paid, none having been paid previously.
15. Where an application is made for change of entry under the
above provision, it must be filed in the land office for the district in
which the lieu selection lies. The application must describe the tract
selected and the tract covered by the unperfected entry, and must be
accompanied by a formal relinquishment to the nnite<l States of all
right, title and interest in and to the tract embraced in said entry.
There must also be filed with the application an affidavit, corroborated
by at least two witnesses cognizant of the facts, showing the periods
and length of daimant^s residence on his relinquishe<l claim, as credit
for the time spent thereon will be allowed under the new entry in com-
puting the period of residence required by law. Residence and improve-
ments are requisite on the new entry, the same as on the old, subject
only, in respect to residence, to a deduction of the period covered by
the relinquished entry.
16. Where final certificate or patent has issued, it will be necessary
DECISIONS RELATING TO THE PUBLIC LANDS. 593
for the entryman or owner thereunder to execute a quit-claim deed to
the United States, have the same recorded on the county records, and
ftirnish an abstract of title, duly authenticated, showing chain of title
from the Government back again to the United States. The abstract
of title should accompany the application for change of entry, which
must be filed as required by paragraph 15, without the affidavit therein
called for.
17. In case a settler on an unsurveyed tract within a forest reserva-
tion desires to make a change of settlement to land outside of the reser-
vation and receive credit for previous residence, he should file his
application as provided for in paragraph 15, iDcludiug the affidavit as
to residence therein required, and describing his unsurveyed claim with
sufficient accuracy to enable the local land officers to approximately
determine its location.
18. All applications for change of entry or settlement must be for-
warded by the local officers to the Commissioner of the General Land
Office for consideration, together with report as to the status of the
tract applied for.
LOCATION AND ENTRY OF MINERAL LANDS.
19. The law provides that "any mineral lands in any forest reserva-
tion which have been or which may be shown to be such, and subject
to entry under the existing mining laws of the United States and the
rules and regulations applying thereto, shall continue to be subject to
such location and entry", notwithstanding the reservation. This makes
mineral lands in the forest reserves subject to location and entry under
the general mining laws in the usual manner.
20. Owners of valid mining locations made and held in good faith
under the mining laws of the United States and the regulations there-
under, are authorized and permitted to fell and remove from such mining
claims any timber growing thereon, for actual mining purposes in con-
nection with the particular claim from which the timber is felled or
removed. (For further use of timber by miners, see below under head-
ing "Free Use of Timber and Stone".)
FREE USB OF TIMBER AND STONE.
21. The law provides, that
The Secretary of the Interior may permit, under regulations to be prescribed by him,
the use of timber and stone found upon such reservations, free of charge, by bona ti<le
settlers, miners, residents, and prospectors for minerals, for firewood, fencing, build-
ings, mining, prospecting, and other domestic purposes, as may be needed by such
persons for such purposes; such timber to be used within the State or Territory,
respectively, where such reservations may be located.
This provision is limited to persons resident in forest reservations
who have not a sufficient supply of timber or stone on their own claims
or lands for the purposes enumerated, or for necessary use in develop-
10671— VOL 24 38
694 DECISIONS RELATING TO THE PUBLIC LANDS.
ing tbe miueral or other natural resources of the lands owned or oocn-
pied by them. Such persons, therefore, are permitted to take timber
and stone from public lands in the forest reservations under the terms
of the law above quoted, strictly for their individual use on their own
claims or lands owned or occupied by them, but not for sale or disposal,
or use on other lands, or by other persons: Protided^ that where the
stumpage value exceeds one hundred dollars, application must be made
to and permission given .by the Department.
SALE OF TIMBER.
22. The following provision is made for the sale of timber within
forest reservations in limited quantities:
For the purpose of preserving tbe living and growing timber and promoting tbe
younger growth on forest reservations, the Secretary of tbe Interior, under such rules
«nd regulations as he shall prescribe, may cause to be designated and appraised so
much of the dead, matured, or large growth'of trees found upon such forest reserva-
tions as may be compatible with the utilization of the forests thereon, and may sell
tbe same for not less than the appraised value in such quantities to each purchaser
ms he shall prescribe, to be um6<1 in the State or Territory in which such timber reser-
vation may be situated, respectively', but not for export therefrom. Before such sale
ahall take place, notice thereof shall be given by the Commissioner of the General
ILAnd Office, for not less than sixty days, by publication in a newspaper of general
circulation, published in tbe county iu which the timber is situated, if any is therein
published, and if not, then in a newspaper of general circulation published nearest
to the reservation , and also in a newspaper of general circulation published at the
capital of the State or Territory where such reservation exists; payments for such
timber to be made to the receiver of the local land office of the district wherein said
timber may bo sold, under such rules and regulations as the Secretary of the Interior
may i)rescribe; and the moneys arising therefrom shall be accounted for by the
receiver of such land office to the Commissioner of the General Land Office, in a
separate account, and shall be covered into the Treasury. Such timber, before being
sold, shall be marked and designated, and shall be cut and removed under the super-
vision of some person aiipointed for that purpose by the Secretary of the Interior, not
interested in the purchase or removal of such timber nor in the employment of the
purchaser thereof. Such supervisor shall make a report in writing to the Commis-
sioner of the General Land Office and to the receiver in the laud office in which such
reservation shall be located of his doings iu the premises.
The sale of timber is optional, and the Secretary may exercise his
discretion at all times as to the necessity or desirability of any sale.
23, While sales of timber may be directed by this Department with-
out previous reciuest from private individuals, petitions from responsible
persons for the sale of timber iu x>articular localities will be considered.
Such petitions must describe the laud upon which the timber stands by
legal subdivisions, if surveyed; if unsurveyed, as definitely as possible
by natural land marks; the character of the country, whether rough,
steei) or mountainous, agricultural or mineral, or valuable chiefly for its
forest growth; and state whether or not the removal of the timber
would result injuriously to the objects of forest reservation. If any of
the timber is dead, estimate the quantity iu feet, board measure, with
DECISIONS RELATING TO THE PUBLIC LANDS. 595
the value, and state whether killed by fire or other cause. Of the live
timber, state the different kinds and estimate the quantity of each kind
in trees per acre. Estimate the average diameter of each kind of tim-
ber, and estimate the number of trees of each kind per acre above the
average diameter. State the number of trees of each kind above the
average diameter it is desired to have offered for sale, with an estimate
of the number of feet, board measure, therein, and an estimate of the
value of the timber a^ it stands. These petitions must be filed in the
proper local land office, for transmission to the Commissioner of the
General Land Office.
24. Before any sale is authorized, the timber will be examined and
appraised, and other questions involved duly investigated, by an
official designated for the purpose; and upon his report action will be
based.
25. When a sale is ordered, notice thereof will be given by publica-
tion by the Commissioner of the General Land Office, in accordance
with the law above quoted; and if the timber to be sold stands in more
than one county, published notice will be given in each of the counties,
in addition to the required general publication.
26. The* time and place of filing bids, and other information for a cor-
rect understanding of the terms of each sale, will be given in the pub-
lished notices. Timber is not to be sold for less than the appraised
value, and when a bid is accepted a certificate of acceptance will be
issued by the Commissioner of the General Land Office to the success-
ful bidder, who, at the time of making payment, must present the same
to the receiver of public moneys for the land district in which the tim-
ber stands. The Commissioner of the General Land Office must approve
all sales, and he may, in sales in excess of five hundred dollars in value,
make allotments of quantity to several bidders at a fixed price, if he
deems proper, so as to avoid monopoly. The right is also reserved
to reject any or all bids. A reasonable cash deposit with the proper
receiver of public moneys, to accompany each bid, will be required.
27. Within thirty days after notice to a bidder of an award of timber
to him, payment must be made in full to the Eeceiver for the timber so
awarded. The purchaser must have in hand the receipt of the Eeceiver
for such payment before he will be allowed to cut, remove, or otherwise
dispose of the timber in any manner. The timber must all be cut and
removed within one year from the date of the notice by the Eeceiver of
the award ; failing to so do, the purchaser will forfeit his right to the
timber left standing or unremoved and to his i)urchase money.
28. Sixty days notice must be given by the purchaser, through the
local land office, to the Commissioner of the General Land Office of the
proposed date of cutting and removal of the timber, so that an official
may be designated to supervise such cutting and removal, as required
by the law. Upon application of purchasers, permits to erect temi)orary
sawmills for the purpose of cutting or manufacturing timber purchased
696 DECISIONS RELATIKG TO THE PUBLIC LANDS.
nuder this act may be granted by the Commissioner of the General
Land Office, if not incompatible with the public interests. Instructions
as to disposition of tops, brush and refuse, to be given through the
supervisors in each case, must be strictly complied with, as a condition
of said cutting and manufacture.
29. The act provides, that the timber sold shall be used in the State
or Territory in which the reservation is situated, and is not to be
exported therefrom. Where a reservation lies in more than one State
or Territory, this requires that the timber shall be used in the State or
Territory where cut.
30. Receivers of Public Moneys will issue receipts in duplicate for
moneys received in payment for timber, one of which will be given the
purchaser, and the other will be transmitted to the Commissioner of
the General Land Office in a special letter, reference being made to the
letter from the Commissioner authorizing the sale, by date and initial,
and with title of case as therein named. Receivers will deposit to the
credit of the United States all such moneys received, specifying that
the same are on account of sales of public timber on forest reservations
under the act of June 4, 1897. A separate monthly account-current
(form 4-105) and quarterly condensed account (form 4-104) will be
made to the Commissioner of the General Land Office, with a statement
in relation to the receipts under the act as above specified.
31. Special instructions will be issued for the guidance of officials
designated to examine and appraise timber, to supervise its cutting and
removal, and for carrying out other requirements connected therewith,
BiNGEB Hermann,
Commissioner.
Approved, June 30, 1897,
C. N. Bli^s,
Secretary,
The text of the law under which the above rules and regulations are
prescribed is as follows :
[Public — No, 2.]
AX ACT making appropriations for anndrj civil expenses of the Qovemment for the fiscal year end-
ing June thirtieth, eighteen haudre<l and ninety-eight, and for other porposea.
Be it enacted by the Senate and House of Representatives of ike United States of Ameri^ia
in Congress assemhledf That the folio wing sums be, and the same are hereby, appro-
priated, for the objects hereinafter expressed, for the iiscal year ending Jnne thir-
tieth, eighteen hundred and ninety-eight, namely:
For the survey of the public lands that have been or may hereafter be designated
as forest reservcH by Executive proclamation, under section twenty-four of the Act
of Congress approved March third, eighteen hundred and ninety-one, entitled ''An
Act to repeal timber-culture laws, and for other purposes," and including public
lands adjacent thereto, which may be designated for survey by the Secretary of
the Interior, one hundred and fifty thousaud dollars, to be immediately a%*ailable:
Provided, That to remove any doubt which may exist pertaining to the authority of
DECISIONS RELATING TO THE PUBLIC LANDS. 597
the President thereunto, the President of the United States is hereb)^ authorized and
empowered to revoke, modify, or suspend any and all such Executive orders and proc-
lamations, or any part thereof, from time to time as he shall deem best for the public
intereats: Provided, That the Executive orders and proclamations dated February
twenty-second, eighteen hundred and ninety-seven, setting apart and reserving cer-
tain lands in the States of Wyoming, Utah, Montana, Washington, Idaho, and South
Dakota as forest reservations, be, and they are hereby, suspended, and the lands
embraced therein restored to the public domain the same as though said orders and
proclamations had not been issued: Provided further, That lands embraced in such
reservations not otherwise disposed of before March lirst, eighteen hundred and
ninety-eight, shall again become subject to the operations of said orders and procla-
mations as now existing or hereafter modified by the President.
The surveys herein provided for shall be made, under the supervision of the
Director of the Geological Survey, by such person or persons as may be employed
by or under him for that purpose, and shall be executed under instructions issued
by the Secretary of the Interior; and if subdivision surveys shall be found to be
necessary, they shall be executed under the rectangular system, as now provided by
law. The plats and field notes prepared shall be approved and certified to by the
Director of the Greological Survey, and two copies of the field notes shall be
returned, one for the files in the United States surveyor-general's office of the State
in which the reserve is situated, the other in the General Land Office; and twenty
photolithographic copies of the plats shall be returned, one copy for the files in the
United States surveyor-general's office of the State in which the reserve is situated;
the original plat and the other copies shall be filed in the General Land Office, and
shall have the facsimile signature of the Director of the Survey attached.
Such surveys, field notes, and plats thus returned shall have the same legal force
and e£feot as heretofore given the surveys, field notes, and plats returned through
the surveyors-general ; and such surveys, which include subdivision surveys under
the rectangular system, shall be approved by the Commissioner of the General Laud
Office as in other oases, and properly certified copies thereof shall be filed in the re-
spective land offices of the district in which such lands are situated, as in other cases.
All laws inconsistent with the provisions hereof are hereby declared inoperative as
respects such survey : Provided, however, That a copy of every topographic map and
other maps showing the distribution of the forests, together with such field notes
as may be taken relating thereto, shall T>e certified thereto by the Director of the
Survey and filed in the General Land Office.
All public lands heretofore designated and reserved by the President of the United
States under the provisions of the Act approved March third, eighteen hundred and
ninety-one, the orders for which shall be and remain in full force and eifect, unsus-
pended and unrevoked, and all public landb that may hereafter be set aside and
reserved as public forest reserves under said act, shall be as far as practicable con-
trolled and administered in accordance with the following provisions:
No public forest reservation shall be established, except to improve and protect
the forest within the reservation, or for the purpose of securing favorable conditions
of water flows, and to furnish a continuous supply of timber for the use and neces-
sities of citizens of the United States; but it is not the purpose or intent of these
provisions, or of the Act providing for such reservations, to authorize the iuclusiou
therein of lands more valuable for the mineral therein, or for agricultural purposes,
than for forest purposes.
The Secretary of the Interior shall make provisions for the protection against
destruction by fire and depredations upon the public forests and forest reservations
which may have been set aside or which may hereafter be set aside under the said
Act of March third, eighteen hundred and ninety-one, and which may be continued;
and he may make such rules and regulations and establish such service as will insure
the objects of such reservations, namely, to regulate their occupancy and use and to
preserve the forests thereon from destruction ; and any violation of the provisions
598 DECISIONS RELATING TO THE PUBLIC LANDS.
of this Act or such mlee and regulations shall be punished as is provided for in the
Act of June fourth, eighteen hundred and eighty -eight, amending section fifty-three
hnndre<l and eighty- eight of the Revised Statutes of the United States.
For the purpose of preserving the living and growing timber and promoting the
younger growth on forest reservations, the Secretary of the Interior, noder snch
rules and regulations as be shall prescribe, may cause to be designated and appraised
so much of the dead, matured, or large growth of trees found upon snch forest res-
ervations as may be compatible with the utilization of the forests thereon, and may
sell the same for not leas than the appraised value in snch quantities to each pur-
chaser as he shall prescribe, to be used in the State or Territory in which such tim-
ber reservation may be situated, respectively, but not for export therefrom. Before
snch sale shall take place, notice thereof shall be given by the Commissioner of the
General Land Otfice, for not less than sixty days, by publication in a newspaper of
general circulation, published in the county in which the timber is situated, if any
is therein published, and if not, then in a newspaper of general circulation published
nearest to the reservation, and also in a newspaper of general circulation published
at the capital of the State or Territory where such reservation exists; payments for
such timber to be made to the receiver of the local land office of the district wherein
said timber may be sold, under such rules and regulations as the Secretary of the Inte-
rior may prescribe; and the moneys arising therefrom shall be accounted for by the
receiver of such land office to the Commissioner of the General Land Office, in a
separate account, and shall be covered into the Treasury. Such timber, before being
sold, shall be marked and designated, and shall be cut and removed under the super-
vision of some person appointed for that purpose by the Secretary of the Interior,
not interested in the purchase or removal of such timber nor in the employment of
the purchaser thereof. Such supervisor shall make report in writing to the Commis-
sioner of the General Land Office and to the receiver in the laud office in which such
reservation shall be located of his doingH in the premises.
The Secretary of the Interior may permit, under regulations to be prescribed by him,
the use of timber and stone found upon such reservations, free of charge, by bona
fide settlers, miners, residents, and prospectors for minerals, for tirewood, fencing,
buildings, mining, prospecting, and other domestic purposes, as may be needed by
such persons for such purposes ; such timber to be used within the State or Terri-
tory, respectively, where such reservations may be located.
Nothing herein shall be construed as prohibiting the egress or ingress of actual
settlers residing within the boundaries of such reservations, or from crossing the
same to and firom their property or homes ; and such wagon roads and other improve-
ments may be constructed thereon as may be necessary to reach their homes and to
utilize their property under such rules and regulations as may be prescribed by the
Secretary of the Interior. Nor shall anything herein prohibit any person from
entering upon such forest reservations for all proper and lawful purposes, including
that of prospecting, locating, and developing the mineral resources thereof: Pro-
vided, That such persons comply with the rules and regulations covering such forest
reservations.
That in cases in which a tract covered by an unperfected bona fide claim or by a
patent is included within the limits of a public forest reservation, the settler or
owner thereof may, if he desires to do so, relinqnish the tract to the Government,
and may select in lieu thereof a tract of vacant land open to settlement not exceed-
ing in area the tract covered by his claim or patent; and no charge shall be made in
such cases for making the entry of record or issuing the patent to cover the tract
selected : Provided further, That in cases of imperfected claims the requirements of
the laws respecting settlement, residence, improvements, and so forth, are complied
with on the new claims, credit being allowed for the time spent on the relinquished
claims.
The settlers residing within the exterior boundaries of such forest reservations, or
in the vicinity thereof, may maintain schools and churches within such reservation.
DECISIONS RELATING TO THE PUBLIC LANDS. 599
and for that purpose may occupy any part of said forest reservation, not exceeding
two acres for each schoolhouse and one acre for a church.
The jurisdiction, both civil and criminal, over persons within such reservationa
shall not be affected or changed by reason of the existence of such reservations^
except so far as the punishment of offenses against the United States therein is con-
cerned; the intent and meaning of this provision being that the State wherein any
such reservation is situated shall not, by reason of the establishment thereof, loso
its jurisdiction, nor the inhabitants thereof their rights and privileges as citizens,
or be absolved from. their duties as citizens of the State.
All waters on such reservations may be used for domestic, mining, milling, or irri->
gation purposes, under the laws of the State wherein such forest reservations arcy
situated, or under the laws of the United States and the rules and regulations estab-
lished thereunder.
Upon the recommendation of the Secretary of the Interior, with the approval of
the President, after sixty days' notice thereof, published in two papers of general
circulation in the State or Territory wherein any forest reservation is situated, and
near the said reservation, any public lands embraced within the limits of any forest
reservation which, after due examination by personal inspection of a competent per-
son appointed for that purpose by the Secretary of the Interior, shall be found better
adapted for mining or for agricultural purposes than for forest usage, may be restored
to the public domain. And any mineral lands in any forest reservation which have-
been or which may be shown to be such, and subject to. entry under the existing
mining laws of the United States and the rules and regulations applying thereto*,
shall continue to be subject to such location and entry, notwithstanding any pro-
visions herein contained.
The President is hereby authorized at any time to modify any Executive order that
has been or may hereafter be made establishing any forest reserve, and by such
modification may reduce the area or change the boundary lines of such reserve, or
may vacate altogether any order creating such reserve.
Approved, June 4, 1897.
INDEX.
AliandoDment* Page.
See CanU$t, Retidenee.
Accounts.
The a<\ja8tanent of deputy surveyors', is
made npon the intrinsic evidence far-
nifihed by the field notes of survey, sworn
to and returned by the deputy, and not
npon independent supplemental state*
nients 338
Circular of June 5, 1897, as to unearned
fees and unofficial moneys 505
Adverse Claim.
See Mining Claim.
Affidavit.
In those States or Territories whose
laws do not forbid an attorney to admin-
ister an oath to a client, the necessary
oath to a contest affidavit may be admin-
istered by an officer or notary who is also
the attorney of the contestant; but in
States where the local laws forbid such
practice it will not be allowed by the Land
Departme nt 45
Alaska.
Surveys under the act of 1891 are not
authorized in the absence of a formal ap-
plication therefor, verified by affidavit,
showing the character, extent, and ap-
proximate value of the improvements
owned by the claimant 545
A suri'ey of lands under sections 12 and
13, act of March 3, 1891, should not bo al-
lowed to include a ditch or water way,
used by native Alaskan villagers for the
purpose of securing the necessary fresh-
water supply for domestic use and con-
sumption 312
On application to purchase land under
the act of March 3, 1891, the extent of the
actual use and occupancy of the land
should not be determined on the report of
the deputy surveyor alone, and prior to
the submission of final proof 314
In the survey of land desired for a fish-
ing station, under the provisions of sec-
tion 12, act of March 3, 1891, a failure to
observe the requirement that the land
shall be taken as near as practicable in a
square form, will not be excused on the
ground that the land excluded is valueless
for fishing purposes 545
Alienation* page.
A written agreement to convey the land
covered by a homestead entry, made prior
to the submission of final proof, will de-
feat the right of the entryman to i)erfect
his entry 79
An agreement to convey part of the land
covered by a homestead entry after final
proof, with possession given under such
contract, calls for cancellation of the en-
try, although the agreement may have
been made in the compromise of a prior
contest against the entry in question 155
The execution of a deed to a half inter-
est in the land covered by a homestead en*
try, prior to the submission of final proof,
defeats the right to patent, though it may
appear that the entryman had lived on
the land for five years prior to, and that
the grantee under the deed is asserting no
claim thereunder 337
An agreement by a desert-land entry-
roan to convey title to the land after the
submission of final proof will not operate
to defeat the entry, where said agreement
was entered into after the nassage of the
amendatory act of March 3, 1891, which
recognises the right of assignment in the
entryman, and where the initial entry ap-
pears to have been made In good faith 100
An agreement by a desert-land entry-
man, made subsequent to the initial entry,
to convey title 10 the water supply after
the submission of final proof, is not ground
for cancellation, if it appears that such
agreement was afterwards, and prior to
final proof, repudiated 100
Amendment*
See Entry.
Appeal.
See Practice.
Application
To enter should not be received during
the time allowed for appeal from a Judg-
ment canceling a prior entry of the laud
applied for; nor the land so involved held
subject to entry, or application to enter,
until the rights of the entryman have heen
finally determined 81,209
Of a third party to enter land em-
braced within a judgment of cancellation,
rendered by the Deportment, should be
601
602
INDEX.
Page,
received and held to await action on the
part of th« Buccenafnl conteatant; and if
the preferred right of the said contestant
is subsequently waived, the application to
enter, so held in abeyance, is entitled to
{precedence as against other claims arising
subfleqnently thereto 408
To enter, accompanied by relinqnish*
meut of entry under contest, made by a
stranger to the record, should be held to
await the expiration of the time allowed
a successful contentant for the exercise
of his preferred right of entry, or may be
allowed if it appears that such contest-
ant is disqnalifiod to make entrj', or has
waived his preferred right 81
Lands embraced within a departmental
order directing their reservation until
farther Instructions are not snlv)ect to
entry during the pendency of said order. . 284
To enter filed within the pendency of an
executive withdrawal of the land for a
public purpose confers no right; but it is
within the exercise of departmental dis-
ooretion, on the removal of the reservation,
to recognise applications so filed, subject
to prior adverse claims 462
To amend a homestead entr>', by includ-
ing therein an additional tract, operates
to reserve the land covered thereby, so far
as the rights of the applicant are oon-
cemed, until final action thereon 429
To make homestead entry or pre-emption
filing, made by an alien prior to declara-
tion of intention to become a citisen, con-
fers no right either under the pre-emption
or homestead law, and a settler occupy-
ing such status is without protection as
against an intervening adverse claim of
record 60
Timber Culture.
To make timber culture entry of land
withdrawn for the benefit of a railroad
grant confers no right as against the grant
or the government, and if the laud, so
applied for, is subsequently restored to
the public domain, after the rejiealof the
timber culture law, there is no right in
the applicant that brings him within the
protective terms of said repeal 484
The right secured by a, erroneously re-
jected and pending on appeal, may be ex-
ercised by the heir of the applicant 280
Attorney.
Hay administer oath as notary public,
to contest affidavit made by client, in
States and Territories where an attorney
is not prohibited from administering oath
to client 46
In good standing before the Land De-
partment is entitled to inspect reiHirts of
special agent on which final action has
been taken by the General Land Ofiice
adverse to the interest of his client 379
Page.
In good standing, admitted to practioe
l)efore the Department, is not required to
file written authority to appear on behalf
of his client 472
Right to api^ear and file motion not
recognized until due compliance with
departmental regulations with respect to
the admission of, to practice before the
Department 525
Boundary of State.
See Statfs.
Cancellation.
See Judgtnent.
Of an entry without notice to the entry-
man ia void for want of jurisdiction Si
CertUlcate.
oee ScT^t,
Certillcation.
See Patent.
Certiorari.
A writ of, will not issue where it is ap-
parent that the appeal, if before the De-
partment, would be dismissed 2^
An application for a writ of, will be
denied where the applicant has not pre-
viously sought relief through appeal, as
provided in the Rules of Practice 344
Rule 85 of Practice operates as a super-
sedeas for the time specified therein, but
is not a limitation upon the power of the
Secretary of the Interior to grant an ap-
plication for, even though not filed within
that time 335
Delay in the application for a writ of,
and the aUowanoe of an adverse entry
under the Commissioner's decision com-
plained of. w^ill not defeat the right of the
applicant to a decision on the merits of
the case, where the rights of third parties
are not effected thereby, and the status of
the adverse party is not due to any neg-
lect or delay on the part of the applicant,
and where the entry of such party is made
with full notice of the applicant's rights
in the premises 385
The writ of, will not be granted if the
petitioner fails to show that the decision
complained of is erroneous, and did not
render su bstan ti al j nstice In the premises . 570
May be aUowed where failure to appeal
in time is due to accident or mistake,
which is satisfactorily explained, if such
action will not result in injury to inno-
cent parties 57t)
Chippewa Pine l.ands«
See Indian Land:
Circulars and Instructions.
See IMtUa qf, page xix. ^
Citizenship.
Children bom of a white man, a citisea
of the United States, and an Indian
woman, his wife, follow the status of the
father in the matter of 311
INDEX.
603
Coal I^ands. Page.
The price of, ia dependent npon Us dis-
tance from a completed railroad at the date
of entry, and not at the date of the appli-
cation 11
A claimant who appears, on the last
day of the life of his filing, at the local
office and within the business hours desig-
nated by official regulation!), and is pre-
vented nx»m submitting his tinal proof
and making payment at such time by the
receiver's office being closed contrary to
»aid regulations, should not be regarded
as in default, where such proof and pay-
ment are tendered on the next business
day 46
Conflrmation*
Section 7 Act of March 3, 1891.
Of a soldier's additional homestead
entry, is not defeated by the failure of the
register to issue the formal final certifi-
cate, IDF here it appears from the record
that the soldier complied with all the
requirements of the law and regulations
thereunder 58
As between a purcbnber flrom the cn-
tryman and one holding under a subse-
quent tax sale of the land, the benefit of
the confirmatory provisions of section 7
must be accorded to the holder of the tax
title 189
Commutation*
S^e Entry; Honuatead.
Contest*
Second, on iasue once tried and deter-
mined will not be allowed 61
The general rule that a settler claiming
priority over one having an entry of
record must establish his claim by a pre-
ponderance of the evidence may be so far
departed from, in a special case, as to
reach an equitable conclusion , where, on
the facts shown. Justice and equity re-
quire a division of the land between the
parties 158
No right can be secured under the con-
test of one attacking an entry on the
ground of prior settlement, in the absence
of some special equity shown, if the
charge aa made is not established by a
preponderance of the evidence 189
Against a homestead entrjr, on the
ground of priority of settlement, must
fail, if the allegation is not made good by
some preponderance of the evidence 584
Against a homestead entry on the
ground alone that the land embraced
therein is unfit for cultivation, and of no
Tfllne except for the timber thereon, will
not be entertained 310
A motion to dismiss a, for inlbrmality
in the affidavit of contest, and the want
of a corroboratory affidavit, may be prop-
erly overruled by the local office, aa its
Pcfye.
Jurisdiction is not dependent upon the
affidavit of contest, but upon the service
of notice 383
After the expiration of five years under
a homestead entry a charge of aluindon-
ment and change of residence will not be
entertAined against the same, In the
absence of an allegation that the entryman
failed to comply with the law as to resi-
dence and cultivation during the statutory
period 398
A charge of failure to submit final proof
within the statutory period of t»eveu years
from the date of homestead entry states
no cau4»e of action against an entryman
that is entitled to the additional year con-
ferred by the act of July 26, 1894 398
The action of the Office of Indian Affairs
on allotments is conclusive, so far as the
General Land Office is concerned, as to
whether the Indian was a settler on the
land, and whether he was entitled as an
Indian to receive an allotment 424
On projier charge made, may be enter-
tained against an approved Indian allot-
ment 204
Against the entry of an insane home-
steader must fail if it appears that the
entryman had complied with tlie law up
to the time when he became insane 494
Contestant.
The preferred right of a successful, is
not defeated or impaired by adverse settle-
ment claims acquired subsequent to the
entry under attack 221
A settlement on land covered by the
entry of another, confers no right as
against a successful, who secures the can-
cellation of such entry 432
The right of a successful, accorded by
section 2, act of May 14. 1880. is not de-
pendent upon the truth of the charge as
laid, if the cancellation of the entry is the
result of a contest prosecuted in good
faith 221
Acquires no right by a contest against
an entry of lands reserved on account of
a railroad grant, that will defeat the right
of the entryman, who is in possession as
a licensee, to purchase the land under the
provisions of section 3, act of September
29, 1890, and the amendatory act of Janu-
ary 23, 1896 406
Under the regulations of the Depart-
ment, land included within the occupancy
of an Indian is not sulject to entry, and a
contest against an entry of land, so ex-
cluded fh>m disposition, will confer no
right ui>on the, that will prevent the De-
partment from subsequently holding the
land in reservation, with a view to its
allotment to the Indian 413
A duly appointed guardian of the minor
children of a deceased soldier may insti-
tute a contest, on behalf of his wards.
604
INDEX*
Paga
and, in the erent of anccMS, exerciM the
preference right by filing a soldier's
declaratory statement for the benefit of
said minor children : and this right will
not be defeated by the failure of the guar-
dian to set forth in the affidavit of contest
the caiMcity in which he was then acting. 4n
In the ease of a departmental decision
rendered prior to the change of practice,
following the decision in Allen v. Price,
as to dosing cases on review, but wherein
notice of such decision is not given by
the local oflice until after such change of
practice, the, is entitled to the protection
provided for under the new practice 477
Desert Land.
See Entry.
A relinquishment on the part of th^
State of, included in a contract made under
section 4, act of August la, 18M, to be
effective must be executed by the officers
designated by the State legislature to
manage and dispose of said lands 602
Under the provisions of the act of 1894,
the departmental regulations thereunder,
and the terms of the State act, the maps,
and lists of selections shown thereby, are
properly sutheuticated by the signature
of the chief cierk of the State board of
land commissioners 562
Donatioa Claim.
Of a married man embracing more than
three hundred and twenty sores is not
▼old, but voidable.... 4
Entry.
Desert Laxd.
In determining whether a, is within the
rule as to compactness no inflexible rule
can be laid down, but each case must be
considered in the light of the facts pre-
sented 306
Made under the act of March 3, 1877, by
one not a oitiKen of the State in which the
land is situated, but a qualified citizen of
the United States, may be perfected un-
der the amendatory act of March 3, 1891 . . 308
The provisions of the amendatory des-
ert-land act of March 3, 1891, requiring the
entryman to l>e a resident citizen of the
State in which the land is situated, are
not applicable to entry made prior to the
passage of said act 466 j
The act of March 3, 1801, amending the
desert-land act of March 3. 1877, operates
to confer upon entrymen under the origi-
nal act, at their option, th<' additional
time for effecting reclamation provided
for in said amendatory act, and an entry
occupying such status, on which final
proof has not been submitted, is within the
provisions of the act of July 26, 1894, ex-
tendii)^ the time for making final proof
and payment 435
An agreement by a desert entryman,
made subsequent to the original entry, to
convey title to the water supply after the
submission of final proof, is not ground
for cancellation, if it appouv that each
agreement was afterwards, and prior to
final proof, repudiated 100
Orders of the General Land Office made
on the submission of annual, are interloc-
utory in character, and no appeal will lie
therefrom 306
The period covered by departmental or-
der suspending a, must be excluded in
computing the time within which recla-
mation must be effected and final proof
made 435
A mortgage of land covered by a, can
not be regarded as entitling the mort-
gagee to the status of an assignee of the
entry until after foreclosure of the mort-
gage, if, under the laws of the State in
which the land is situated, a mortgage of
real prox>erty is not a conveyance thereof. 418
UOMBSTEAD.
The right to make a second, may be ac-
corded to one who in good faith relin-
quishes the first on account of an adverse
claim asserted to the land included therein 531
The commutation of a, prior to the pas-
sage of the act of March 2, 1889, defeata
the right to make a second, under section
2ofsaidact 561
An ofiicial certi6cate of the register as
to the trntbfalness of the applicant may
be accepted In lieu of the corroboratory
affidsvit required in the case of an appli-
cation to make second, where the failure
to furnish such affidsvit is satisfactorily
explained 16
The right to make a second, may be
recognized where the first through mi»-
take was not made for the land intended,
and was accordingly relinq uished 16
May be amended to correspond with
settlement, as against an intervening
entryman, if priority of settlement is
shown by the applicant and it does not
appear that he is estopi>ed by his own
acts fW>m setting up his right as against
the adverse claimant 135
When found to embrace non-contiguous
tracts the entryman should I je called upon
to elect which tract or tracts he will relin-
quish in order to bring the entry within
the rule as to contiguity: and if the entry-
man fails to take such action the entrv
may then be canceled as to such tracts as
may be deemed pro]ier, having due regard
to interests shown by incumbrancers. . . . 2S&
TlMDEK CfLTrRE.
Under the amendator}* provisions of the
act of March 3, 1803, the failure of a tim-
ber culture entryman, who has complied
with the law for the period of eight years
INDEX.
605
Page,
from date of, to continue sncli compliance
with lav, will not defeat his right to a
patent, thongh he may not have succeeded
in securing a growth of trees 448
Where the notice of the expiration of the
statutory life of a, is not given in accord-
ance -with the address furnished and the
entry is canceled for failure to suhmit final
proof it should be reinstated ; and equita-
ble action thereon will not be defeated by
the intervening entry of another if good
faith is manifest and the final proof
shows due compliance with the law except
in the matter of submitting proof within
the statutory period 288
Estoppel.
The right of a settler to make home-
stead entry will not be defeated by the
prior application of an adverse claimant
if, by the conduct of said claimant, he is
estopi>ed from asserting his claim as
against such settler 297
Evidence.
The local officers, after due notice given,
may inspect the premises in dispute and
use the information thus obtained as an
aid to the proper understanding and val-
uation of the evidence adduced at the
hearing 277
The burden of proof rests upon one who
attacks an approved Indian allotment,
alleging a superior right to the land
covered thereby 323
If the burden of proof is improperly
placed, and accepted as placed without
objection, the party so relieved from said
burden is not in a position to complain of
such action on appeal, in the absence of
an attempt in the appellate tribunal to
shift the burden, and apply the changed
standard to the record made on the hear-
ing in the local office 507
The conviction of a person on a charge
of perjury committed in a case where
another party is an applicant for land,
and the Issue is "soonerism," and such
person testifies that neither he nor such
applicant were in the territory within the
prohibited jieriod, is not necessarily con-
clusive as to such person's qualification,
though afiecting bis credibility as a wit-
ness 1 400
Fees.
Unearned and unofficial moneys ; circu-
lar of June 5, 1897 505
On the location of desert lands by a
State under the fourth section of the act
of August 18, 1894, the register and re-
ceiver are each entitled to a fee from the
State of $1 for each final location of 160
acres 66
On filing selections under the act of
January 12, 1891, the raMroad company
must pay thestatutory 543
Filing:. Page.
Made by an alien confers no right under
the pre-emption law as against an inter-
vening adverse claim 60
Final Proof.
Failure to submit-, within statutory pe-
riod not treated as default, where the
claimant appears on the last day of such
period, and witliiu business hours, and
finds the receiver s office closed contrary
to the regulations, and thereafter submits
proof on the next business day 46
The submission of pre-emption, without
payment of the purchase price of the land
as required by law, will not protect the
pre-emptur as against an intervening ad-
verse claim 153
Can not be submitted on a homestead
entry made under the act of August 23,
1894, of lands within an abandoned mili-
tary reservation, prior to the appraisal of
the reservation 335
The act of March 4, 1896, relieves a tim-
ber-culture entry man from the require-
ment of appearing before the local office,
or an office designated by statute within
the county in which the land is situated,
on the submission of, but does not modify
prior legislation or regulations thereun-
der with respect to the testimony of his
witnesses 443
Desert Land.
See Entry.
Forest liands.
See Heiervation.
Homestead.
See Entry; Oklahoma Lands.
The law does not contemplate that the
right of entry shall be exercised by one
who makes settlement primarily and
chiefly for trade and business, and not for
agricultural puri>oses 24
An act of a Territorial legislature estab-
lishing the corporate limits of a city, so
as to include therein lands embraced at
such time within an Indian reservation,
is inoperative as to the lands so reserved,
and on the removal of the reservation no
bar to the allowance of au entry 526
The prohibitory provision in section
2289 R. ^., as amended by section 5, act of
March 3, 1891, that " no person who is the
proprietor of more than one Iiundred and
sixty acres of land in any State or Terri-
tory shall acquire any right under the
homestead law," is no bar to the allow-
ance of an entry based upon an applica-
tion made prior to the passage of said
amendatory act, and strictly in compli-
ance with the laws and regulations then
in force 343
The settlement of a homesteader, who
dies prifiT to the expiration of the time
given for the assertion of his right, with-
606
INDEX.
I
P»««.
oat having made application to enter, in-
ures to the benefit of hia widow; and ber
aubaeciuent remarriage will not defeat
her claim aa the aucce^aor to the right
of her deceased hnsband 181
The right of a deserted wife, who is liv-
ing on the land covered by the entry of
her husband, attaches at once on the filing
of his relinquishment, and defeats the in-
tervening adverse entry of another 535
Entry of insane claimant may be proved
up by jierson authorised to act for him
during his disability 405
The right of a settler to make entry will
not be defeated by the prior application
of au adverse claimant, if, by the conduct
of said claimant, he is estopped from
asserting his claim as against such settler,
and it appears that said claim is wanting
in good faith 297
The action of a homesteader in cutting
and selling timber growing on the land
covered by his entry should not be held
sufficient to Justify cancellation of the
entry, on the ground of fraudulent intent
in making the same, if the entryman in
^actually residing on the laud and appar-
ently expending the proceeds of the tim-
ber in the permanent improvement of his
claim 454
Additional.
The right to make additional entry
under section 0, act of March 2, 1889, is
limited to cases wliere the original entr}*
wyis made prior to the passage of said act. 23
Adjoining Farm.
Is invalid, and will not be allowed to
stand if the entryman was not in fact the
owner of the alleged original farm at the
timeof entry 258
Commuted.
An order directing the canoellation of
a prematurely commut«d homestead entry
will not defeat action under the confirma-
tory iirovisions of the act of Juue 3, 1896,
if such order has not become final 351
Soldiers.
A soldier who has filed a homestead
declaratory statement is entitled to six
calendar months after such filing within
which to make eulry, and commence set-
tlement and improvement ; and in the
computation of such time the day of filing
the declaratory Ntatement should be ex-
cluded, and the lant day of the specified
period included 38
Tht-re is nothiug in section 2304, R. S..
whioli rtuthorizcH a woldier to make a home-
stead entry who has perfected au entry
under the provisions of the general act.. 561
Soldiers Additional.
Ceniticate« of right, re<;ularly issued,
and located by boua fide purchasers
35
291
502
thereof, but thereafter canceled for ille-
gality, and so remaining unsatisfied at
the passage of the act of August 18. 1894,
are by said act validated, and may be re-
issued for the benefit of a bona fide pur-
chaser thereof
Under the act of August 18. 1894. an
entry made on a certificate of right is
valid, and must be approved, where the
land is held by a bona fide purchaser,
though the issuance of the certificate may
have been secured through fraud ; and tlie
patent in such case should issue in the
name of the assignee
There is no authority of law for the in-
sertion of a condition in a soldier's certi-
ficate of right, requiring settlement and
residence on the part of the soldier, where
the original entry was abandoned; and
it therefore follows that in recertifying
the additional ri^ht in the name of a
transferi*e, under the act of August 18.
1894, such a conditiou, contained in the
original certificate, should be omitted
Indemnity.
See Railroad Grant; sSehool Land,-
Swamp Land.
Indian Lands.
The Department has authority to cancel
entries of Osage cede<l lands where de-
fault exists as to the payment of the pur-
chase pri ce
The preferred right of homestead entry
accorde<1 to actual settlers bv the act of
»
June 17, 1892, oi>ening the Klamath River
Indian Reservation, does not extend to
lands returned as swamp and overflowed,
and so represented on the approved town-
ship surveys and plats
The issuance of a trust patent on an
Indian allotment terminates the jurisdic-
tion of the Secretary of the Interior over
the lands CO verwl thereby as public lands^
and he consequently has no authority, in
the absence of special statutory provi-
sion, to cancel such patents for the purpose
of correcting erroneous allotments 214
The authority conferred upon the Sec-
retary of the Interior by the act of Jan-
uary 26, 1895, to cancel a trust patent, in
ordef to correct a mistake in the allotment.
Is limited to cases in which tlie alleged
error is one of those specifically named in
saidact -. 214
The act of January* 26. 1895. authorising
the Secrel-ary of the Interior to cancel
patents issued on Indian allotments, for
the correction of mistakes therein, is lim-
ited in its operation to a specified class of
trust patents, and is not applicable to a
patent that conveys a title in feesimple..
The Secretary of the Interior has au-
thority to investigate the validity of an
Indian allotment at any time prior to the
26
INDEX.
607
Pago,
issue of the first patent provided for un-
der the allotment law, and, on sufficient
cause shown, to rescind the approval of an
allotment and reject it 264
The a<3tion of the Office of Indian Af-
fairs on allotments is conclusive, so far as
the General Land Office is concerned, as to
whether the Indian was a settler on the
land, and whether he was entitled, as an
Indian, to receive an allotment 424
The patents issacd on Indian allotments
In the Cherokee Outlet were not condi-
tional, but conveyed a fee-simple title,
and the Department is consequently with-
out jurisdiction over the lands covered
by said patents 285
Children born of a white man, a citizen
of the United States, and an Indian
woman, his wife, follow the status of the
father in the matter of citizenship, and
are therefore not entitled to allotments
under section 4, act of Februarj* 8, 1887,
as amended by the act of February 28,
1891 311
An allotment duly made and approved
must be regarded as a Judicial determina-
tion that the allottee is entitled to an
allotment in the reservation involved,
and such question, so determined, must
thereafter be held rear judicata 323
A departmental determination that an
applicant for the right of allotment is
entitled to recognition, so far as tribal
relationship is concerned, removes such
question Arom further consideration in
subsequent proceedinga involving the
assertion of said right 323
An allotment made and approved on the
selection of the allotting a^ent, and with-
out a formal selection on the part of the
allottee, is not for such reason invalid . . . 323
An adverse claim set up against an ap-
proved allotment by another applicant
for the right of allotment, and based on
alleged prior selection and improvement
of the tract in question, can not be recog-
nised, in the absence of an affirmative
showing of ii^justioo done, amounting to
a fraud upon his equitable rights in the
premises 323
The relinquishment of an allotment is
inoperative if not approved by the De-
partment 323
Under section 8, act of March 2, 1889,
all "Indians receiving rations " at a reser-
vation, on the date of the President's
order directing allotments thereof, are
entitled to rtxognitiuu under said order. . 330
Under the regulations of the Depart-
ment, land included within the occupancy
of an Indian is not subject to entry, and
a contest against an entry of land, so ex-
cluded from disposition, will confer no
right upon the contestant that will pre-
vent the Department from subsequently
Page-
holding the land in reservation, with a
view to its allotment to the Indian 413
The joint resolution of December 19, 1893^
confirming bona fide pre-emption filings,
and homestead filings, or entries, within
the Mille Loo Indian reservation, allowed
between January 9, 1891, and the receipt
of notice at the local office of the depart-
mental decision of April 2% 1892, operates
to validate settlement rights covered by
filings or entries thus allowed, whether
initiated before or after January 9, 1891 ;
hence, as between parties claiming under
said protective legislation, priority of set-
tlement may properly form a material
issue 489
Allotments on the Swinomish Indian
reservation may be made prior to the es-
tablishment of actual residence by the
allottees, it appearing that the lands se-
lected are partly covered by tidal over-
flow, and that the portion not so covered
is cultivated by said allottees, and further,
that when allotment is made the Indians
will be enabled to protect their lands from
said overflow and thus secure permanent
homes 509
The act of August 15, 1894, modifying,
as to the citizen Pottawatomie and Ab-
sentee Shawnee Indians, the inhibition
against alienation contained in the general
allotment act, doos not authorize a sale of
allotted lands held by a minor heir 511
An appraisal of unallotted Pottawato-
mie lands, as provided for in the treaty of
November 15, 1861, is not called for, if it
appears that there is a bona fide claimant
therefor who is within the protective
clause of the subsequent treaty of Febru-
ary 27, 1867 513
Cash entries of Chippewa pine lands,
made after due offering under section 5,
act of January 14, 1889, and the amenda-
tory act of February 26, 1896, should not
be canceled for inadequacy of considera-
tion, where the appraised value of the
land was paid, and there is no evidence of
collusion between the purchaser and the
government appraiser, unless such inade-
quacy is so great as to amount to a fraud
or imposition 517
Directions given for withholding Chip-
pewa pine lands from sale until ftirther
orders, and the Commissioner instructed
to proceed with the survey of said lands,
and report with respect thereto 517
Insanity.
See IToniettead; ConUgt; Jielinquiihment.
Instructions and Circulars.
See Tables of, page \ix.
Isolated Tract.
Section 2455 R. S., as amended by the
act of February 26, 1895, contemplates
that no tract shall be regarded as isolated.
608
INDEX.
Page,
within the zneaning of the law, nxiless at
the tiiue of the application to have it sold
nnder said section the land aarrounding
said tract ia incloded within entries, fil-
ings, or sales, made at least three years
prior thereto 296
Judgment.
Tender a decision holding an entry for
cancellation, if within a specified period
the entryman faila to comply with certain
reqairements, or appeal, the judgment
becomes final at the expiration of said
period, if the requirements of said deci-
sion are not complied with, and no appeal
ia taken, and the land involved is there-
after open to entry by the first legal
applicant 209
Jurisdiction
Of the local office in case of a hearing is
acquired hy notice, and is not dependent
upon the afiidavit of contest 383
£.and Department.
A. surveyor-general, who orders uid
approves the survey of a mining claim, is
disqualified as anapplicant therefor under
the provisions of section 452 R. S., and
the departmental regulations thereunder,
while holding such oflioe 393
mineral Land*
Instructions of April 9, 1897, as to rail-
road and State selections in mineral belts. 321
Instructions of May 10, 1897, aH to non-
mineral affidavit in case of railroad and
State selections in mineral bells 416
The existence of a mineral location
raises the presumption that the location
has been made in conformity with law,
and that the land covered thereby is min-
eral in character 172
VThere mineral is found, and it appears
that a person of ordinary prudence would
be justified in further expenditures, with
a reasonable prospect of success in devel-
oping a mine, the land may be properly
reganled as mineral in character 172
A hearing will not be ordered on an alle-
gation that a tract of land, embraced
within a certified list of State selertions,
was not, on account of its prior known
mineral character, intende<l to be granted
to the State, except upon a strong prima
facie showing in support of such allega-
tion 486
The burden of proof is properly upon
one alleging the mineral character of a
tract that has, jirior thereto, been ad-
judged agricultural 277
If the burden of proof as to the charac-
ter of land is improperly placed, and ac-
cepted as placed without objection, the
party .ho relieved from said burden is not
in a }>OMition to complain of such action
on appeal, in.the absence of an attempt in
Page.
the appellate tribunal to shift the burden,
and apply the changed standard to the
record made on the hearing in the local
office 507
In case of an attack on a mineral loca-
tion of land that has once been adjudged
mineral in character, the abandonment or
forfeiture of the claim must be shown by
clear and unmistakable evidence 853
The non-mineral character of a tract of
land having been determined as the result
of a hearing had on that issue, the Depart-
ment is not Justified in ordering another
hearing on the same issue, in the absence
of a clear showing of development made
since the prior hearing, such as, if sup-
ported by the evidence at the hearing ap-
plied for, would clearly demonstrate that
since such prior hearing mineral has been
discovered in such quantities, and by such
thorough work on the premises, as toover-
come the effect of the previous judgment
as to the character of the land 5SS
In a hearing ordered to determine the
alleged known mineral character of land
embraced in an agricultural entry, made
at the conclusion of a prior conteat inrolv-
ing the character of the land, the evidence
must be confined to discoveries after tbe
date of the first hearing, and prior to the
allowance of tbeentry 573
Mininff Claim.
Circular of February 25, 1897, under the
act of February 11, 1897. authorizing
placer entry of oil lands 183
Paragraph 29, of mining regulations,
amended, and directions given for due
promulgation thereof 191
The notice of an application for a min-
eral patent should, in stating the names
of adjacent claims, include unanrveyed aa
' well as surveyed claims 191
Failure to include in the posted and
published notice of a mineral application
the names of the nearest or adjacent
claims, in strict accordance with para-
graph 29, of mining regulations, will not
render new notice necessary, where the
notice as given is substantially in con-
formity with the practice heretofore ob-
served under said paragraph 191
Judicial proceedings are not effective as
against an application for mineral patent
if not based ujion an adverse claim aa pro-
vided by statute 18
The failure of a claimant under a min-
eral location to make objection to the
allowance of an agricultural entry of the
laud is conclusive as to the right of such
claimant to be heard 488
On appeal from the refusal of the local
ofiice to entertain a protest against a min-
eral application, the appellant ia not re-
quired to servo the applicant with notice
thereof 349
INDEX.
609
Pafa
ContinnoDs poMMSion of ft, with dae
compliance of law, for a i)eriod equal to
the time preacribed by the statute of limi-
tations for mining claims, in the State
wherein such claim is situated, entitles
the claimant under the provisions of sec-
tion 2332, R. S., to a patent, in the absence
of any advene claim 18
Prior t« the approval of a railroad in-
demnity selection, the land included
therein, if mineral in character, is open to
exploration and purchase under the min-
ing laws of the United States 172
▲ surveyor-general who orders and ap-
proves the survey of a, is disqualified as
applicant therefor under the provisions of
section 452, H. 8., and the dei»artmental
regulations thereunder, while holding
such office 898
A discovery of mineral on each twenty
acres of a placer location serves to except
the whole location f^om school indemnity
selection 507
Prior to the passage of the act of August
4, 1882, there was no authority to locate
and purchase lands chiefly valuable for
building stone under the placer mining
laws 408
The Land Department has no Jurisdic-
tion to correct an alleged erroneous sur-
vey of a patented placer claim, while the
patent is outstanding, so as to include
land not applied for or surveyed 512
Notice*
BeePraeiice,
OUahoma I^ands.
Circular of February 25, 1807, under the
act of January 18, 1807, opening to entry
land in Greer county 184
In a eontest between applicants for land
in Oklahoma, involving priority of settle-
ment, the question of "sooneriam " is nec-
essarily raised as to each party thereto,
whether formally charged or not, and
where, in such a contest, evidence is sub-
mitted on said question, and a decision
rendered thereon, a second contest should
not be allowed on that question 61
An applicant for the right of entry in
Oklahoma is not disqualified by reason
of his knowledge of the country, gained
through residence therein prior to the pro-
hibited period 420
The fact that at the date of the act open-
ing the Pottawatomie country to settle-
ment and entry a person Is tiien within
said country and occupying land under
an unapproved lease will not in itself
disqualify him as a claimant for lands
so opened for settlement; nor will his
subsequent presence in such territory
operate as a disqualification where he ac-
quires no additional information as to the
bmd settled upon, and in obedience to the
10671— VOL 24 39
Page.
President's proclamatioli he leaves said
territory and remains outside the bound-
ary until the hour of opening 82
Where there is doubt as to the actual
boundary of lands about to be opened
to settlement, and a government official,
for the purpose of securing equal oppor-
tunities to all, designates a line from
Which the run shall be made, it is incum-
bent upon one whc disregards such desig-
nation to show that by such action he
gained no advantage over othors 32
A settler on lands opened to disposition
by the act of March 3, lAOl, is not disquali-
fied by making the "run" on the day of
opening ft-om an adjacent Indian reserva-
tion 02
The prohibitory provisions of section
14, act of March 2, 1880, with respect to
settlement in Oklahoma, are general In
character as to lands opened to settlement
in said territory, and extend to Sao and
Fox lands, becoming effective Atom the
date of the act announcing the acquisition
of the Indisn title to said lands 301
The limitation in section 20, sot of May
2, 1880, of the right to make homestead
entry in Oklahoma, to persons who are
not "srtsed in fee simple of one hundred
and sixty acres of land,*' disqualifies one
who owns a "quarter section," entored as
such, though the area of the tract thus
owned may fall short of one hundred and
sixty acres by a small fraction, as shown
by the field notes of survey 248
The provisions in section 18, act of
March 8, 1801 (26 Stat., 080), that the Umds
specified therein shall be opened to settle-
ment " under the provisions of the home-
stead and townsite laws," should be con-
strued to mean that said lands are to be
opened to settlement under the homestead
and townsite laws governing the disposi-
tion of lands in Oklahoma, and not oper-
ating to repeal the provision contained
in section 20, act of May 2, 1800, disqual-
ifying as homesteaders all persons own-
ing one hundred and sixty acres in any
State or Territory, and applicable to aU
lands in Oklahoma 242
A transfer of land owned by an intend-
ing homesteader will not operate to relieve
him friim the disqualification imposed by
section 20, act of May 2, 1800, if it appears
to have not been made in good faith, but
for the purpose of evading the statutory
inhibition 248
The special right to enter additional
lands conferred by the act of February 10,
1804, when such additional lands become
sul^eet to entry, is defeated by a prior
selection of the Isnd as school indemnity
under the provisions of the act of March
2, 1886 01
610
INDEX.
Patent. Tuge.
(Tndar mi entry oonAnMd by ■ection 7,
»et of M«reh 8, 1191, abould itan* in tlM
nAme of the entrynMui, thoof h his dentli
may be diaoloMd by the record
The inedTortent oertiflcetlon of Stote
•elections ate time when tbe iands cov-
ered thereby are included within an ex*
isting entry, and involTcd in proceeding*
then pending before the Department, is
inoperatire, and constitateano obetacle to
the isenance of, in accordance with the
final Judgment in said proceedings
▲ certification under the act of Angnat 3,
1854, of lands on account of a railroad
grant that were, at the date of the grant,
embraced within a pending prima faeU
Talid school indemnity selection, is no
bar to the subsequent ^proTsl of such
selection
Under the act of August 3, 1854, a cer-
tification of lands to a State^ on account
of a railroad grant, is no bar to tlie subse-
quent dlspoaitlon of said lands, if they
in fact lie wholly outside of said grant,
and hence are not of thecharacter granted. 890
The Land Department has no Jurisdic-
tion to correct an alleged eironeons surrey
of a patented placer claim, while the, is
outstanding, so as to include land not ap-
plied for or aurveyed 512
Suit for the recovery of title will be ad-
Tieed where a, through inadrertence and
mistake, is issued in contraTention of
deiMrtmental dlrectloiM 900
Payment*
Pine I«ai94s.
See Indian Lands,
Practice.
See BuIm nf, eiUd and eeiMfrwed, page
xziii.
Generally.
Theadrancementof oases on the docket
in the General Land Oflice, is a matter rest-
ing in the discretion of the Commiseioner,
and will not be interfered with by the
Department unless an abuse of discretion
appears 902
The local officers, after due notice given,
may inspect the premises in dispute, and
use tbe information thus obtained as an aid
to the proper understanding and valuation
of the evidence adduced at tbe hearing. . 277
Appeal.
Will not lie Arom an interlocutory order
of tbe local office made during tbe prog-
ress of a hearing 88
Orders of the General I^nd Office made
on the submission of annual desert land
proof are interlocutory in character, and
no, wi U lie therefrom 806
Will not be entertained iu the abftenee
of speciticatiun of errors 4^
Wm not beentertained, if notioetheceof
is not served on tlw opposite party within
the time allowed for filing the saoM
Notice of, may be served either upon
the adverse party or hiaattomey
Notice ai, served upon the land commis-
sioner and agent of a railroad company Is
a proper and legal service on such com-
pany 339
Where two or more cases, involving tbe
same traet of land, hnve been consolidated
and conaidered together, notice of, must
be served upon all parties in lntei«et 408
Rule 106 of Practice, providing for the
aervice of noticea upon attorneys, ia one
of convenience, and not of exclusive
right; hence an, is not defective in the
matter of notice, if the eervioe ia made
upon the ^peUee, and not npen hia at-
torney 277
From the refuaal oi the local oflice to
entertain a protest against a mineral ap-
plication, does not require the appellant
to serve the applicant with notice thereof 349
An order for a hearing issued by the
Qeneral Land Office, on the, of an appli-
cant fhun the reaction of his spplication
to enter, operates as a dlapoaition of the,
and its want of regularity ii thwealler
not material tr74
A case on, that involves the righta of
several parties appellant, will be treated
aa property before tbe Department on the
whole record, though it may be alleged
that one of the appellants filed his appeal
out of time 565
Notice.
Jurisdiction of the local office ia seemed
by, and is not dependent cm the affidavit
of contest 383
Of contest is sufficient if it substan-
tially follows the affidavit of contest 3SS
The Rules of Practice do not require
that a, should be served within the Juiis-
diotlon of the local office fVom which it is
issued 383
Service of, by registered letter is not
personal service within the meaning of
Rule 9 of Practice u
Service of, by publication is defective,
if a c«ipy of the notice is not mailed by
registered letter to the defendant at his
post-office of record 350
On ol\jection to the service of, the con-
test should be dismissed, if the ground of
objection is well taken, and the contestant
does not apply for an alias notice 350
Rehearing.
If the party adversely affteted by an
interlocutory order withdraws from the
case, he is not en titled to have it remanded
for further hearing even thongh it may
appear that the local office erred in its
ruling 89
INDEX.
611
Review. Page.
There is no antboiity In the rule* of
practloe for the* of an order of the Secre-
tary of the Interior diractlDg a hearing.
A reivoeation of aneh order should he
sought through an application to the
snperrisory anthoritr of the Secretary. . 400
Where two or more cases, involving the
same tract of land, have heen consolidAted
aadoonsidered together, notice of motions
for, must he served upon all parties in
interest 403
The snfflcieucy of the charge, on which
a hearing has been held, can not be called
In question on, if no objection thereto was
made at the hearing 801
Prior to t he iasuance of patent, the Land
Department may reopen a case, to correct
an error in the decision thereof, and re-
a4JudIcate the same, after due notice to
the parties 280
On the application of a party in interest
the Bepartment may reform its findings
of facts in a previous decision, so that it
may be in accord with the record in the
oaae, where such action seems requisite
for the protection of the applicant,
though the Judgment as rendered may not
be affected thereby 846
A cause of action arising after the hear-
ing before the local office, and during tiie
pendency of appeal therefrom, can not be
made tlw basis of a motion for, of the
departmental decision rendered on the ap-
pealed case 880
A motion for, filed by an alleged agent
and attorney of a State will not be enter-
tained where such attorney has not com-
plied with the regulations in regard to the
admission of attorneys at law to practice
before the Department, and has shown no
authority to represent the State either as
attorney or agent ; and where it must be
presumed that the State would not give
such authority to any person, on account
of its having executed a quitclaim deed
ot the land involved to the United States. 525
Piice of I^and.
See Pvblie Land.
Private Claini.
By the terms of the treaties between the
United States and the Republic of Mexi-
co, all lands embraced within the bounda-
ries of Mexican and Spanish grants, at
the date said treaties were ratified, were
placed in a state of reservation for the
ascertainmentof rights claimed under said
grants, and by the act of March 3, 1891,
said reservation is continued in force, and
will so remain until final action is taken
on the respective claims or grants affected
thereby 1
The grant made to Dr. Perrine by the
act of July 7, 1838, and subsequently con-
ferred by Congress upon his heirs, was a
Pagei
grant in pra$enH^ conveying the legal
title to the grantees,defeasible onl^ by for-
feiture duly declared by act of Congress ;
and until such forfeiture be so declared
th J grantees have the right to make the
settlement required as a condition prece-
dent to the issue of patent 10O
The right of setttoment under the act
of July 7, 1838, on the granted premises is
restricted to the grantees or those claim-
ing under them, and aU other settlers
thereon are naked trespassers; and their
settlements may be claimed by the grant-
ees as a fulfillment of the conditiona of the
grant, whenever the settlement is such
as the grant requires 109
If the terns of the grant of July 7, 1888,
are complied with it inures to the bene-
ficiaries thereunder, and patent will issue
accordingly: it is therefore not material
for the government to inquire as to the
interest of others in said grant 169
Decided and recommended for confir-
mation by the commissioners, and re-
ferred to Congress by the Secretary of the
Treasury, January 14, 1880, is confirmed
bysectionl,actof May2e, 1830 205
Where the attention of Congress has
been called to the fact that the conditions
subsequent in a grant have not been com-
plied with, and no action is taken by Con-
gress, such failure to act will be taken by
the Department as an expression of the
legislative will that the decUions of the
oourts be accepted as a guide in adminis-
tering the law 100
Public Itfand.
An even-numbered section lying within
the common granted limits of two rail-
road grants remains at double minimum
thoagh one of such grants may be for-
feited 9
Lands falling within the indemnity
limits of a railroad are not by such fact
raised to the double minimum price 159
Railroad Oraut.
Generally.
Selections in mineral belt, circular in-
structions of July 9, 1894, modified 321, 416
In the preparation of lists of lands grant-
ed to aid in the construction of railroads,
the lands should be listed to the grantee
company or corporation when it is in ex-
istence 138
Under the grant to the Northern Pacific
Kailroad Company patents should issue to
that company and not to a grantee thereof. 188
In the exchange of lands, provided for
in the act of January 12, 1881, between the
United States and the Southern Pacific
Rxdlroad Company, the company should
file a relinquishment of the lands in lieu
of which it proposes to make selections,
and present to the local office a formal
612
INDEX.
»ppUcati<m to select the Uen Iftiide, m daly
lUted for tttch pnrpoee, and pey the statu-
tory listfaig fees oo the selectioos so made . 54S
The maps, tract books, and ofllcial phits
of surrey, on file iii the General Land
OAoe, most determine the location of rail-
road lines, and the distances thereflrom of
lands in dispate between railroad com-
paniesand settlers 180
The fact that lands are nnsnrreyed does
not except them from the operation of a,
on deftnite location 180
▲ decision of the Department, in accord-
ance with the mlings then in force, that a
eertaia tract of land passed ander a, does
not, in view of the provisions of the act of
Ifarch S, 1887, reqoiring the a^jnstmsnt
of zaUroad grants *' in accordance with the
deeiaiena of the Supreme Coart." pre-
dade sabseqnent departmental action,
on the application of a third party, under
the later decisions of said court 441
The aot of June 8, 1864, authorised %
modilleation of the line of unconstmeted
road as located under the original grant of
1866, and provided for a branch line cim-
necting said modified line with the line of
the Mississippi and Missouri Sallroad
Company, so as to form a connection with
the Union Pacific system. For the modi-
fied main line the company was entitled
" to the same laadsand to the same amount
of lands per mile " aa provided in the orig-
inal grant, but for the connecting branch
line a new grant was made* to be aatisfied
fkwn lands within twenty miles thereof;
hence in the adjustment of the grant, aa
made by the two acts of Congress, the
** connecting branch line" can not be re-
garded as a part of the modified main line . 125
The act of June S, 1864, so for aa the
modified main line is concerned, enlarged
the source foom which the amount of lands
granted by the act of 1856 might be satis-
fied ; but the lands certified prior to said
act of 1864, along nnconstructed road,
must remain a charge against the company
in the final adjustment of the grant under
the two acts 125
In the s^Justment of the Korihem Pa-
cific grant between Thomson and Dnluth
said grant should be charged with all
lands received by the Lake Superior and
Mississippi Company between said points
under the prior grant thereto, whether
within the primary or indemnity limits
ofsaid grant 320
▲t the time of the filing and acceptance
of the map of definite location of the St.
Vincent extension of the Manitoba road
there was no reservation of lands for the
benefit of the Northern Pacific outside the
withdrawal on general route, and tho pri-
mary limits adjusted to definite location,
that would defeat the grant to the Mani-
toba company 105
The graxfts to the St. Paul and Northern
Pacific K. K. Co. and theKorthem Pacific
K. R. Co. were made by difforent acta of
Congress, and are entirely separate and
distinct, and the lease of its road and fran-
chises by the former company to the lat-
ter will not Justify the Department in
holding that rights granted to the com-
pany first named can only be exercised by
its lessee
Action suspended on all entries allow*^
within tlM conflicting limita of ti.e
granta for The Dallea Military Wagmi
Road Co. and the Northern Pacific R. i:.
Co., pending a Judicial determination »f
the status of said lands
The grant of March 3, 1871, was not one
in presssnM, but im/uiur^t takingeffect on
the deU^ery and filing of the rellnqniali-
ment required under the terms of the
grant 141
Lands Excepted.
An uncanceled pre-emption filing of rer-
ord, at the date a railroad grant becomr-i
eflbotive, excepts the land covered thereby
ftmn the operation of the grant 186
An expired pre-emption filing of leoonl.
at the date a railroad grant takes effoct,
excepts the land covered thereby from th«i
operation of the grant 141
Land embraced within a pre-emptioii
filing of record at the time when a railroed
grant becomes efl'ective is exoq>ted from
the operation of the grant, and the com-
pany in such case is not entitled to qur«-
tion the legality of the filing or the quali-
fications of the pre-emptor SI
A donation claim of a married man em-
bracing more than three hundred and
twenty acres is not void, but voidablp
only, and land included therein, at thv
time when a, beoomea elfoctlve, is ex-
cepted finom the operation of the grant. . . 4
The notation of a swamp-la::d selection,
appearing of record at the date a railroad
grant becomes efl^ctive, will not operate
to except the land covered thereby frtwn
the grant, where prior thereto the ap-
proval of such selection haa been revokvtl
and the selection itself superseded by sub-
sequent lists 168
The conditions on which the extension
of time for the completion of the road waa
given by the act of June SS, 1874, operato
as a revocation of the grant to the extent
of the rights of actual settlers at the date
thereof; and the protection thus given
such settlers is eifootive, even though the
lands were listed under the grant and such
list approved prior to the passage of said
aot
The effect of aection 17, aot of July 2,
1864, waa not to make a new grant but to
provide a new beneficiary under the orig-
inal grant of July 1, 1862, aa to the Sioux
INDEX.
613
Page.
City branch, and said benefloiaiy conld
only take such lands as irere capable of
I»a88ing nnder the original grant, and
wonld therefore not acquire title to lands
that were a part of the bed of the Mis-
souri River at the dat« of the original
grant' 29
Indemnity.
Selection unaccompanied by a specifica-
tion of loss is no bar to the attachment of
other rights 195
Selection, in the absence of a specified
basis therefor, is no bar to the acquisition
of a settlement right; and after snoh
right has intervened the company will
not be permitted to designate a loss and
thus perfect the selection 453
The departmental order of May 28, 1883,
waiving specification of loss, was made
at a time when the i Ademnity withdrawals
for the Kortbem Pacific were held valid,
and that fact must be taken into consider-
ation and given effect In the disi>osition
of selections made thereunder 417
Selections made under the departmental
order waiving specifications of loss are
valid and while of record a bar to the
allowance of adverse claims 444
Selections, unaccompanied by designa-
tion of loss, made prior to the depart*
mental order waiving such designation
are protected by said order in the absence
of any intervening adverse claim 444
Selections made under the departmental
order waiving specification of loss are
valid and wlule of record a bar to the
allowance of adverse claims. A snbse-
qnent designation of losses in bulk in
support of snch selections, and rearrange-
ment of the losses so designated, tract for
tract, to correspond with the selections,
can not be regarded as an abandonment
of the company's right under the selec-
tions as originally made 370
Selections accompanied by designation
of loss in balk, made prior to the specific
departmental reqairement that lost lands
should be arranged, tract for tract, with
the lands selected, operate to protect the
company as against subseqnent applica-
tions to Miter made prior to said require-
ment and the rearrangement of losses in
accordance therewith 430
On the rearrangement of a list, based on
losses alleged in bulk, so that the lands
selected and the losses specified shall cor-
respond, tract for tract, the rights of the
company date as of the presentation of
the first list so far as the selections and
losses are the same 444
Prior to selection the lands within the
indemnity limits of the Northern Pacific
grant are open to settlement and entry ... 40
Page.
The right of a qualified settler who is
in the possession of land to perfect title
thereto is not defeated by an intervening
selection 439
Land not protected by withdrawal and
embraced within a bona fide settlement
claim is not subject to selection 274
A claim of occupancy will not be held
sufllcient to defeat the right of selection
in the absence of actual residence on the
land 452
Selection of unsurveyed land should be
canceled, not suspended to await survey. 40
Prior to the approval of a selection the
land included therein, if mineral in char-
acter, is open to exploration and purchase
under the mining laws of the United
States 172
The failure of a railroad company to
perfect a selection within a reasonable
time after notice of final decision recog-
nizing the right of selection must be held
to work an abandonment of its prior
right, where the withdrawal has been re-
voked and an adverse claim intervened . . 145
The establishment of indemnity limits
on the definite location of the Northern
Pacific, and action taken thei^n, did not
amount to a finding on the part of the De-
partment that all the lands in said limits
would be required to satisfy the grant to
said company 105
Selections, regular and legal under the
existing construction of the grant at the
time when made, should be protected
under achanged construction of the grant. 870
Selections of the Northern Pacific rest-
ing on alleged losses east of Superior City,
regular and legal under the construction
of the gran tat the time "i^hen made, should
be protected under the changed construc-
tion of the grant, with due opportunity to
assign new bases, as agidnst intervening
adverse claims 444
Report called for from. General Land
Office as to alleged excess indemnity selec-
tions in the second indemnity belt of the
Northern Pacific grant in the State of
Minnesota 141
Under the grant to the Northern Pacific,
selections may be made within the first
indemnity belt irrespective of the State or
Territorlid lines within which the loss
occurs 417
Withdrawal.
For the benefit of tlie Northern Pacific
Railroad Company, on the map of general
route filed August 15, 1873, can not be
pleaded by the company as against the
operation of a pre-emption claim filed after
the abandonment 'of such route by the
company, and prior to definite location. . . 516
Act op June 22, 1874.
An indemnity selection under said act,
based on a relinquishment necessary for
6U
INDBX.
the protactioii of entrTnen. under the
mlings then in force as to the date when
the rights of the company attached, shoald
not he defeated by a changed mling aa to
the attachment of rights under the grant,
where the landa ao selected hare heen
aold hy the company, and the grant is not
enlarged by the approval of the selection . 881
Act OF April 21, 1876.
The provisions of section 2 are not re-
stricted to persons who made entries under
section 1 of said act, but apply, in the
event of abandonment of such origin si
entrymen, to cases where, " under the de-
cisions and mlings of the Land Depart-
ment," the lands covered by such original
entries have been "reentered by pre-emp-
tion or homestead claimants who have
complied with the laws governing pre-
emption and homestead entries," and sub-
mitted satisfactory proof of such compli-
ance 119
An entry sllowe<l, under the mlings and
decisions of the Land Depsrtment, of land
to which a homestead claim had attached
prior to notice of withdrawal on general
route, that remained of record till after
definite location, and waa then abandoned,
ia wiUiin the oonflrmator}* provisions of
section 2, though made after the passage
of said act 818
Railroad Land.
Act of March 3. 1887.
The right of purchase under section 5
ia not defeated by a prior adverse applica-
tion to enter under which no settlement
right is asserted 42
Land subject to indemnity selection,
and sold to a purchaser in good faith, aa a
part of the grant, may be purchased under
section 5, though no selection of the land
was made by the company 48
Section 5 doea not confer upon a pur-
chaser from a railroad company, where
the title of the company fails, the right
to purchase from the government land
known to be valuable for its mineral .... 172
The status of an applicant to perfect
title under section 5 as a "bona fide pur-
chaser." is not aflected b^- the fact that he
holda under a quitclaim deed, or that said
deed was execute<l in the consummation
of an agreement for the exchange of prop-
erty, nor by the further fact that prior to
his purchase from the company lie had
been receiver of the laud district within
which the land is situated 409
A "bona fide purchaser" from a rail-
road company of lens than a legal sub-
division is entitled to purchase such tract
from the government under said section
6, and receive patent therefor: but if a
aurvey of said tract is nei'essary, prior to
the issuance of patent, the expense there-
of should be borne by the applicant 410
The right of pnrchaae under aection 5
can not be recognised, if the bona fide
character of the conveyance, under which
the applicant claims, is not establiahed . .
The right to reimbursement under the
act of March 3, 1887 (24 Stat., 550), can
not be reoognised if the title conveyed by
the government is paramount to the claim
of the railroad company
Act of Sbptehbkr 29, 1890.
No right is acquired by a contest against
an entrr of lands reserved on account of n
railroad grant, that will defeat the right
of the entryman, who is in possession aa
a lioenaee, to purchase the land under the
provisions of seotion 3, and the amenda-
tory act of January 23, 1896
Records.
An attorney in good standing before the
Land Department is entitled to inspect
reports of a special agent on which final
action has been taken by the General
Land Office adverse to the interests of his
client
A request for information as to the cost
of certified copies of specified papers or,
in the General Land Office, ia entitled to
a response, with such information aa may
of neceasity be required to form the basis
for a reqneat for an exempllfloation of the.
Rehearinnr.
See i*ra«e£ce.
Belinanishnieiit.
Executed for the benefit of one holding
a confidential and fiduciary relation U»
the entryman can not be recognized as of
any validity in the presence of a just and
equitable adverse claim
Can not be held to be the result of a
contest which had, prior to the, been
finally decided in favor of the entryman
Executed by the guardian of an insane
entryman, under the direction of a pro
bate court, is unauthorized by law and
invalid
Repaymeat*
On application for, under an entry can-
celed for fraud, the applicant will not bf*
permitted to go back of the judgment of
cancellation and show that in fact thettt
was no fraud
A final decision under which a desert-
land entry is canceled, on account of the
non-desert character of the land, can not
be impeached collaterally on application
for
A deaert-land entryman who fails to re-
claim part of the land embraced within
his entry, and thereupon relinquishes ancli
tract, is not entitled to, of the money paid
on the tract so relinquished
If a pre-emption claimant for ofiiered
land fails to assert his right of purchase
84
4oe
37»
4U
177
128
4M
493
536
542
INDEX.
615
Page,
within the stAtotory period, an interven-
ing desert-land entry will defeat said
right; and if the entryman thereafter
Tolnntarily reliDqnlsbes his entry, he is
not entitled to, on the ground that his
entry was canceled *' for condiot '* 575
A. desert entry of land embraced within
a prior pre-emption filing is not an entry
** erroneously allowed '* within the mean-
ing of the repayment act, though an entry
so made is sulitject to the subsequent as-
sertion of the pre-emptor*s right 575
Of the purchase price of the land cap
not be allowed a desert entryman who
fails to furnish sopplemental proof of re-
clamation, properly called for by the local
<^ce, and abandons his claim to the land. 808
Of the money paid on a desert- land entry
can not be made where such entry is
properly allowed on the proofs presented,
but, on subsequent proceedings, is can-
celed on account of the non-desert char-
acter of theland 536
The prorisions of 2362, R. S., and of the
act of June 16, 18W, with respect to. con-
template relief only in cases where, for
some reason not within the eutryman's
control, title to the land can not be passed
by the goremment 575
There is no statutory authority for the
return of a double minimum excess in fees
and commissions erroneously required on
a homestead entry of lands in fact single
minimum, where such money has been
oorered into the United States Treasury . 150
An even-numbered section lying within
the common granted limits of two mil-
road grants remains at double minimum
though one of such grants may have been
forfeited, and an application for, on the
ground of double minimum excess must
be accordingly denied 0
The right of assignees to, is limited to
assignees of the land, and does not extend
to one holding an assignment of the claim
for the money paid on the entry 246
A mortgagee is not an assignee, within
the intent aud meaning of the act provid-
ing for, if the mortgage is merely a lien
on theland 246
No right of, is acquired by an assignee
whoso interest in the land is not obtained
until after the cancellation of the entry. . 246
An application for. made by a mortgagee
of the land, who also holds an alleged as-
signment of the right to repayment, does
not present a case wherein the etatiis of
the applicant, as an assignee, must be de-
termined, if the duplicate receipt is not
surrendered and all claims to the land
properly relinquished 496
On application for, by an entryman he
must show that the laud is free from in-
cumbrance 246
rage.
Of the fees and commissions paid on an
entry will not be allowed where the entry
is relinquished on account of the undesir-
able character of the land and a second
entry made 253
The stiitutes providing for, contemplate
only the return of money actually paid,
and where land is jmid for in part by cash
and in part by a military bounty land
warrant the Secretary of the Interior has
no authority, in allowing, to draw his
warrant upon the Treasury for a sum
larger than the cash payment made by
the en trymiin 539
On application for the return of pur-
chase money by a patentee who was re-
quired to purchase under section 5, act of
March 3, 1887, when In fact theland passed
by the railroad grant under which he held,
the applicant should surrender the patent,
but should not be required to execute a
deed of relinquishment 2j6
The provisions of section 7, act of March
8, 1891, do not in terms nor by Implication
hare any application to the matter of 403
Reservation*
Fort Cameron abandoned military, in-
structions of March 22, 1807 2G9
Circular regnlations of June 30, 1897,
concerning forest ~>89
Final proof can not be submitted on a ^
MmMtead entry made under the aet of
August 23, 1894, of lands within an aban-
doned military, prior to appraisal 335
The phraae ' 'public lands adjacent there
to,'* as used in the act of June 4, 1897, in
making provision tor tho survey of forest
reserves, should be construed to mean
townships which actually adjoin said re-
serves, and such townships are to be sur-
veyed under the supervision of the Direc-
tor of the Geological Survey 588
Residence*
A homestead entry will not be defeated
by the fact that the entcyman, through
mistake, builds his house outside the
lines of his land, where in good faiUi he
resides in the house so located 52
An applicant for the right of homestead
entry who has continuously resided on
the land embraced within his application
for a period of five years, and applied to
enter during s^id period, is not thereafter
required to maintain, as a prerequisite to
patent 343
Registering and voting for several sno-
oessive years in a precinct in which the
land is not situated, on an oath as toactusl,
In such precinct raises a conclusive pre-
sumption against a claim of, for the same
period on the land 426
Under the departmental construction of
section 2297, R. S., a homestead entryman
has nix months from the date of his entry
within which to establish actual, on the
land 522
616
INDEX..
Page.
A deaerted wife who secares the can-
oeUation of her husband's homestead
entry, and, as the head of a family, there-
after makes a homestead entry of the
land, is entitled, on final proof, to credit
for her, on the land prior to the date of
her husband's desertion 557
Bes Jvdicmta.
Prior to the issoanoe of patent, the
Laml Department may reopen a osse, to
oorrect an error in the decision thereof,
and rea4jndicate the same, after due
notice to the parties 280
A decision of the Department, in ac-
cordance with the rulings then in force,
that a certain tract of land passed under
a railroad grant, does not, in view of the
proTiaions of the act of March 3, 1887, re-
quiring the adjustment of railroad grants
"in accordance with the decisions of the
Supreme Court," preclude subsequent
departmental action, on the application
of a third party, under the later decisions
of said court Ml
Revieir.
Revised Stmtntes.
See TabUt qf, OUed and Conttnud, page
XX.
Bifflit or HTmy, mnd Station
Orovnds.
Railroad.
Theaotual use of land as station grounds,
prior to surrey, by a company that has
filed its articles of inoorporation, proofa
of organisation, and oonstructed a rail*
road over unsurveycd lend, entitles said
company to an approval of a plat of said
grounds, as against an intervening home-
stead entzy, if such use antedates the
settlement of the homesteader 4i0
Canal and Ditch.
The acta of March 8, 1891, and May 14,
1896, diffsr so widely in the character of
the estate granted, as well as in the uses
to which the, may be devoted, and the ex-
tent thereof, that sn application can not
properly be allowed on the two acts taken
together; the permission must rest either
upon one act or the other 500
River.
When adopted as the boundary of a
Statt^, sudden changes in the channel do
not affect the boundary line as originsUy
established 372
Saline Land*
The provisions in the act of February
14, 1850, granting salt springs and a<yaoent
lands to the State of Oregon, and the act
of December 17, 1860. amendatory thereof,
so far as they fix a time for selections under
said grant, are directory and not manda-
tory; but as the grant so made only be-
comes eflteti ve as to specific tracts on selec-
tion by the State, the right to make such
selections after the expiration of the time
fixed therefor will be drfeated by an inter-
vening adverse right asserted under the
general provisions made for the disposal
of saline lands by the act of January 12.
i«n
116
School Eiands.
The authority of the Secretary of the
Treasury in the matter of, conferred by
the act of May 20, 1826, was transferred
to the Secretary of the Interior by the act
organising the Interior Department 1 06
The act of February 28, 1891, amending
sections 2275 and 2276, R. S., protects set-
tlement on, prior to survey, and said stat-
ute in that respect supersedes the provi-
sions of sections 10 and 11 of the act of
February 22, 1888 12,106
An alleged leas in an unsurveyed town-
ship will not authorize a school indemnity
selection 51
The special right to enter additional
lands oonferred by the act of February 10,
1894, when such additional lands become
suliject to entiy, is defeated by a prior
selection of the land as school indemnity
under the provisions of the act of March
2, 1886 91
The approval of an indemnity selection
by the Secretary of the Interior passes
the title thereto, and, in contemplation of
law, makes such selection the act of the
Secretary, and it is thereafter not mate-
rial to inquire how auch selection was
made in the first instance 106
A certification under the act of August
8, 1854, of lands tm account of a railroad
grant that were, at the date of the grant,
embraced within a pending prima faeif
valid sohool indemnity selection, is no bar
to the subsequent approval of such selec-
tion 364
An indemnity selection not made with-
in the land distrlot in whioh the loss oc-
curred, as required by section 2276, R. S.,
msy be held valid, in the absence of any
intervening adverse right, under the
amendatory act of February 28, 1891,
whioh removed said restriction 423
The title of the SUte to, vests at the
date of the completion of the survey, and
if the land is not then known to be min-
eral in character, the subsequent discov-
ery of mineral thereon will not divest the
title that has already been paased U
The State, by a school indemnity selec-
tion in lien of land alleged to be mineral
in character, waives its claim to the basis,
which may be thereupon disposed of as
part of the public domain U
A diAOovery of mineral on each twenty
acres of a placer location serves to except
the whole locstion from school indemnity
selection 50T
INDEX.
617
Page.
A parobMe. after surrey, of the pos-
seaaory right and improTementa of one
who settled on school land prior to sarvey,
does not carry with It any right to the
land as against the school grait 681
Scrip.
An application for the issnance of cer-
tlflcates of location under a special act of
Congress authorizing and reqniring the
Commissioner of the General Land Office
to permit the person named therein "to
enter 160 acres of public land subject to
entry under the homestead law " must be
denied where the aet contains no pro-
Tision in terms authorizing such action,
and f\imishes no basis for the exercise of
discretionary power in that respect 300
Selection.
See Xailroad Orant ; Sehool Lands;
States.
Settlement.
Of an alien confers no right 60
No right is acquired by trespass upon
the law f nl possession of another 843
Ko rights are secured by a, made for the
purpose of securing the timber on the
land and not for the establishment of a
home 272
On land covered by the entiy of another,
confers no right as against a successftil
contestant who secures the cancellation of
such entry 221,482
While aa between two parties claiming
the same tract>, the right of one as a aet-
tler may not defeat the superior right of
the other as a successful contestant, yet
if such contestant thereafter enters the
land and relinquishes the entry, such set-
tlement right, if maintained, will defeat
the subsequent entry of a third party. ... 48
The cancellation of a homestead entry
as to part of the land covered thereby, on
account of an adverse olaim, will not pre-
vent the entryman fhnn subsequently
aasertinghis right aa a settler to the entire
tract covered by his original entry, aa
against a third purty 842
Acts of, performed by one claiming the
right to make a second homestead entry,
prior to his application for the exercise of
such privilege, are not invalid, if it is
found that the settler ii( in fact entitled to
make such entry 684
Priority of, must be determined by acts
performed indicative of the settler's
intent, and not by priority of presence on
the land, or declarations of Intention to
settle thereon 490
An alleged act of, set up to establish
priority of right as against an adverse
claim, can not be accepted as sufficient, if
said act is not of a character to give notice
of the settler's claim 315
^
Page.
The conditions attendant upon opening
lands in Oklahoma require the recogni-
tion of extremely slight acts of, in
determining priorities between adverse
claimants 02
Under the conditions attendant upon
the opening of lands to, in Oklahoma the
sticking of a stake may be recognized aa
initiating a right, as against competing
settlers on the day of opening, but such
act will uot be available as against subse-
quent settlers if not followed, within a
reasonable time, by additional acts of 358
Tlie rule recognizing slight acts of, as
between parties making the run for Okla-
homa lands on the day of opening, is not
applicable to the ordinary case of a party
who claims priority of 476
On land reserved for a public highway,
along a section line, as provided under
section 28, act of Ifay 2, 1800, prior to the
actual location and use of such highway,
is valid and extends to the adjacent quar-
ter section on which settlement is intended
to be made 160
A homestead entryman has six months
from the date of his entry within which
to establish actual residence; but during
such period his entry occupies the status
of a settlement claim, and will defeat the
right of entry on the part of a prior home-
stead settler who has failed to assert his
olaim within the statutory period 622
Of a homesteader, who dies prior to the
expiration of the time given for the asser-
tion of his right, without having made
application to enter, inures to the benefit
of his widow ; and her aubsequent remar-
riage will not defeat her claim ns the suc-
cessor to the right of her deceased hus-
band 181
States-
Instructions relative to selections by, in
mineral belts 821,416
Circular instructions of Kay 27, 1801,
for making selections in Montana, North
Dakota, South Dakota, and Washington. 648
Circular of June 17, 1897, modifying
instructions of Kay 27, 1801, with respect
to selections by 653
A State selection made prior to the offi-
cial filing of the tovmship plat is prema-
ture and invalid 272
The boundary between the Indian Ter-
ritory and the State of Texas is the line
of the middle of the mam channel of Ked
River as it existed when Texas was an-
nexed to the United States, and subse-
quent sudden changes in the current or
main channel of said river will not in any
way affect the location or position of said
boundary hue as it lay upon the earth's
surface when established 872
618
INDEX.
PaCtt.
A hearing will Dotbe orderml on an alle-
gatloD th*t A tract of Imnd, embrftoed
within ft oertlfled list of State eelections,
was not, on acoonnt of ita prior known
mineral oharaoter, intended to he granted
to the State, except upon a atrong prima
iheie ahowlng in anpport of such allegap
tion 486
Station Grounds.
See Sight of Wap,
Statutes.
(See A eta of Congrtta cited and etmstnud^
pagezz.
The phraae "pnblio lands ** adjacent
thereto" as used in the act of June 4, 1807,
oonstmed 588
Survey.
The date of a township, is not ilzed by
the date of the work in the field, bat by
theapprovalof the plat 54
Where it is apparent ftrom the record
that in the, of a township, a large body of
land adjacent to a navigable lake has been
omitted through the establishment of a
meander line between alleged swamp and
dry lands, instead of at the true shore
line of the lake, a snrvey of the lands ao
omitted should be made 68
An order may properly issue for the, of
a tract of land omitted IVom the original
snrvey through the erroneous meander of
a slough instead of a river proper 392
The approved plat of an official, is con-
clusive as to the designation of tracte em-
braced therein, and must govern in the
disposal of the lands covered thereby 480
An application of a State for, and reser-
vation of a townahip under the act of
August 18, 1894, must be denied, wliere^
prior to such application, a snrvey of the
township has been ordered for the benefit
of settlers 122
Swamp Land.
Act of February 17. 1807, making provi-
sion for sale and entry of lands embraced
in Mississippi list "So. 7 ; circular of March
22,1897 287
The claim of a State under the grant of,
must fail if it does not appear that the
lands were of the character granted at the
date of the grant 88
A patent may issue to the State of
Florida under the swampland act for the
nnsurveyed tract known as the " Ever-
glades,'■* subject to the right of the State
under its grant of school lands 147
Action on an indemnity list, in which
the claim as to some of the tracts is al-
lowed, amounts to a rejection of the claim
as to the remainder 231
The swampy character of land formixig
the basis of a claim for indemnity should
be shown in the same way, and by evi-
dence of the same character, as required
to entitle the State to landa under Ita
grant 231
By the act of Mareh 2, 1849, all the
swamp lands in the State of Louisiana
were granted to said State, except landa
bordering on atreams, rivera, and bayous,
which were treated by Congress as tiiere-
tofore reclaimed from their swampy char-
actor, and falling within the provisiona of
the act of February 20, 1811, which gave
to said State five per cent of the proceeds
of their sale in order to provide a ftind for
their reclamation 231
At the date of the jMuwage of the gen-
eral swamp land act of September 28, 1850,
there were no lands In the State of Lou-
isiana subject to the^operation of said act,
as all of theawamp land had, prior thereto,
been granted to said State by the special
act of 1849; and it therefore follows that
the State is not included within the in-
demnity provisions made by the act of
March 2, 1855, for aaid provisions were
specifically limited to States included in
the general act 231
The grant of, does not include alternate
reserved sections within the limita of a
prior grant to the State for canal pur-
poses 532
Under section 2488, It. 8., the return of
land as swamp and overflowed is conclu-
sive evidence as to the character of the
land so returned and represented on
the township plat, and this provision is
not defeated by the act of June 17, 1892,
granting homestead righta in the Klamath
Biver Indian reservation 28
Timber and Stone Act.
Prior to the issuance of final certificate
under a timber-land application the local
office has taW Jurisdiction to order a hear-
ing on a prot<»t, or adverse claim, filed
against such application 88
Does not allow the pnrchaae of land
that is inhabited by a bona fide settler. . . : 44
The right to take lands chiefly valuable
for the timber thereon under the settle-
ment laws is limited to claims asserted in
good faith for the purpose of aecnring a
home •^
An applicant for the right of timber
land purchase must show that the land
applied for is free fVom adverse occu-
pancy and that he has made no other ap-
plication to purchase under the timber-
land act 3W
Land covered by the bona fide settle-
ment claim of a pre-emptor is not sulgect
to timber-land purchase: and the appli-
cant for the right of purchase can not
take advantage of irregularities in the
assertion of the pre-emption claim ^76
Land subject to purchase under the, is
not excluded from homestead entry 310
INDSX.
619
Timber Culture. I'Age-
See ApplieMion; Bntty,
Timber Cnttinir.
Circular of June 29, 1897, with respect
to. for parposes of exportation 587
In oonfttming the proYisions contained
in the two acts of June 8, 1878, and the
act of Anffost 4, 1892, with respect to tlm-
her cutting, it mnst he held that the first
of said acts of 1878 (20 Stat., 88), relates
to all mineral lands of the United States,
hut to none of any other character, and
permits the catting of timber on such
lands for building, agricultural, mining,
and other domestic purposes, but not for
the purpose of sale or commerce, and that
the second of said acts (20 Stat., 89), as
amended by the act of 1892, relates to all
non-minerid lands of the United States in
all public V^nd States and prohibits the
cutting of timber on such lands, except as
therein otherwise provided 167
Applications for permission to cut tim-
ber should not embrace above one quarter
section ; and no applicant will be accorded
a second permit unless it satisfactorily
appears that a most urgent necessity
exists therefor 504
The action of a homesteader in cutting
and selling timber growing <m the land
covered by his entry should not be held
sufficient to justify cancellation of the
entry, on the ground of fraudulent intent
In making the same, if the entryman is
actually residing on the land and ap-
parently expending the proceeds of the
timber in the permanent improvement of
his claim 454
Town I^ots.
In the disposition of, under the act of
Hay 14, 1890, an additional assessment,
for the legitimate purposes of the act, is
authorised where such action operates
uniformly upon all lots slike; hot there
is no authority for such an assessment
where the burden falls upon the un-
daimedlots alone 306
The occupancy of a, by the agents of a
tbwn-Bit« company confers no right that
will defeat an adverse occupant of the
remainder of said lot who is claiming the
whole of it 457
Occupancy of a, acquired through tres-
pass and the wrongful dispossession of a
prior occupant will not defeat the right
of such occupant to a deed, though the
trespasser may be the sole occupant at
date of the town-site entry 558
A certificate of right issued by the pro-
visional authorities of a town to a lot
claimant is only to be regarded as prima
facie evidence of title where there is an
adverse claim at the time tbe case is con-
sidered by the town-site board 565
Page.
Adverse occupants in good fkith of a, at
the date of a town-site entry may be
treated, in cases where priority of settle-
ment does not determine their rights, as
joint applicants and receive a deed
Jointly, according to their respective
holdings, though such occupants may
have tiled separate and adverse applica-
tions 5e5
In the interest of the government and
intending purchasers a sale of, under sec-
tions 2380>2881, B. S., may properly take
place at the town site, under the personal
charge of the local officers 405
Town Site.
An application to make entry under
section 2389, R. S., will not be allowed,
where the number of bona fide occupants
is not given, and it is not manifest that
the occupants in fact desire in good faith
to make such entry, and also where the
application covers land apparently min-
eral in character and in close proximity
to another town 258
The right to make an additional entiy
only exists where the applicant has, prior
thereto, made a townsite entry of public
land, and is limited then to land contigu-
ous to that embraced within the original
entry 526
On the application of trustees to make
entry a charge of abandonment, as against
the townsite settlers, may be properly en-
tertained, and notice to said trustees of
the hearing ordered thereon is notice to
lot claimants 468
Entries in the Cherokee Outlet can only
be made through townsite boards 580
A board of trnstees should not be dis-
charged from any portion of the trust im-
posed upon it, until the whole purpose of
the trust is accomplished, or until such
time as it may be relieved entirely from
itsduties 582
Trausreree.
See AUsnaCion, Confirmation,
Waffon Road Grant.
Mere occupation or use of a body of on-
surveyed public land of indefinite area,
without intent to acquire title to the par-
ticular portion thereof in controversy, is
not such an appropriation of that portion
as to except it, or the subdivision of
which it is a part, from the operation o/a. 202
Action suspended on all entries allowed
for lands within the conflicting limits of
the grants for The Dalles Military Wagon
Boad Co., and the Northern Pacific R. R.
Co., pending a judicial determination of
the status of saidlands 883
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