CEDED PORTION OF WIND RIVER RESERVATION-ACT OF APRIL

27, 1912.

INSTRUCTIONS.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

REGISTER AND RECEIVER,

Washington, May 15, 1912.

United States Land Office, Lander, Wyoming.

GENTLEMEN: Your attention is directed to the act of Congress approved April 27, 1912 (Public, No. 133), which reads as follows:

That any person who, prior to December 16, 1911, made homestead entry on the ceded portion of the Wind River Reservation in Wyoming, and has not abandoned the same, and who has been unable to secure water for the irrigation of the lands covered by his entry, may secure title to the same upon the submission of satisfactory proof that he has established and maintained actual bona fide residence upon his land for a period of not less than eight months and upon payment of all sums remaining due on said land as provided for by the act of March 3, 1905.

Persons entitled to the benefits of said act, must submit final proof, as in other cases, after due posting and publication of notice. Under the terms of the act, no evidence, as to cultivation of the lands, need be offered, but the entryman must show residence upon his claim amounting to at least eight months, and must show that he has been unable to secure water for the irrigation of the land covered by his entry; these two facts having been shown, he is entitled to make payment for the land, as in case of commutation.

You will act upon proofs under this act, issuing final cash certificate upon a proper showing, and the money due having been paid. On the face of each certificate you will make the notation: "Commuted Homestead-Act of April 27, 1912."

Very respectfully,

Approved:

SAMUEL ADAMS,

First Assistant Secretary.

55736°-VOL 41-12-2

FRED DENNETT, Commissioner.

Cass Lake, Crookston and Duluth, Minnesota.

SIRS: Rule 4 of the regulations approved February 29, 1912 (40 L. D., 438), under the act of May 20, 1908 (35 Stat., 169), is hereby amended to read as follows:

4. (A) Under section five of the act a purchaser at any sale of unentered lands will be required to pay to the receiver of the proper district land office the minimum price of one dollar and twenty-five cents per acre, or such other price as may have been fixed by law for such lands, together with the usual fees and commissions charged in entry of like lands under the homestead laws. The price of the land under the act of May 20, 1908, is not affected by the provisions of the free homestead act of May 17, 1900 (31 Stat., 179). Any part of the purchase money arising from the sale of lands by the State which shall be in excess of the payments specified above and of the total drainage charges assessed against such lands shall also be paid to the receiver before patent is issued. In the case of the sale of unpatented lands the purchaser must under section six of the act make similar payments except so much thereof as has already been paid by the entryman; and in such case if the sum received shall be in excess of the payments required under section five of the act specified above and of the drainage assessments and costs of the sale the excess shall be paid to the proper county official for the benefit of and payment to the entryman.

(B) Unless the purchasers of unentered lands shall within ninety days after the sale pay to the proper receiver the fees, commissions and purchase price to which the United States may be entitled as mentioned above, and unless the purchasers of entered lands shall within ninety days after the right of redemption has expired make like payments, any person possessing the qualifications of a homestead entryman may pay to the proper receiver for not more than one hundred and sixty acres of land for which such payment has not been made the unpaid fees, commissions and purchase price to which the United States may be then entitled, the sum at which the land was sold at the sale for drainage charges and in addition thereto if the land was bid in by the State interest on the amount bid the State at the rate of seven per cent per annum from the date of sale and thereupon the person making such payment shall become subrogated to the rights of the purchaser to receive a patent for said land. When any payment is made to effect such subrogation the receiver to whom the money was paid shall transmit to the treasurer of the county where the land is situated the amount for which the land was sold at the sale for drainage charges, together with the interest paid thereon, if any, less any sum in excess of what may be due for such drainage charges if the land when sold was unentered.

(C) In case payment is made as above specified you will issue the usua! cash certificates and receipts and forward the papers to this office, together with evidence showing the qualifications of the purchaser on the form (4–007)

provided therefor in the case of a homestead applicant modified as per form herewith. Should no objection appear patent will issue in due course of business.

COAL LAND-STATE SELECTION-ACT OF JUNE 22, 1910.

The provision in the act of June 22, 1910, that lands withdrawn or classified as coal shall be subject to entry under the homestead laws by actual settlers only, the desert-land law, to selection under the Carey Act, and to withdrawal under the reclamation act, with reservation to the United States of the coal therein, does not include State selections, and an indemnity school-land selection for lands withdrawn or classified as coal could not be allowed under that act prior to extension of that provision by the act of April 30, 1912.

COAL LAND-STATE SELECTION-ACT OF APRIL 30, 1912.

The act of April 30, 1912, extended the operation of the act of June 22, 1910. to include selections by the several States under grants made by Congress; and under that provision an indemnity school-land selection, made prior to and pending at the date of the later act, for lands withdrawn or classified as coal lands, or valuable for coal, may, in the absence of intervening adverse rights or other objection, and upon proper election filed by the State, be allowed and accepted as of that date.

ADAMS, First Assistant Secretary:

April 10, 1911, the State of Wyoming filed in the local United States land office at Lander indemnity school-land selection list, No. 05040, for the SW. SE. 1, Sec. 24, T. 44 N., R. 99 W., in lieu of the SE. SE. 1, Sec. 36, T. 48 N., R. 118 W., in the Targhee National Forest, under sections 2275 and 2276, Revised Statutes, as amended by the act of February 28, 1891 (26 Stat., 796). The selection was accompanied by the usual nonmineral, nonsaline, and nonoccupancy affidavit, modified, however, to acknowledge the existence of coal deposits within the land. With the selection was submitted the formal election of the State to take patent for the selected land subject to the provisions of the act of June 22, 1910 (36 Stat., 583).

November 14, 1911, the Commissioner of the General Land Office held said selection for cancellation, on the ground that the selected land had been withdrawn as coal lands by departmental order of

November 15, 1908, and classified as coal at the minimum price, or $10 per acre, by letters "N" of June 10, 1907, and March 4, 1910, and that the selection filed thereafter is not allowable under the provisions of the said act of June 22, 1910.

The State of Wyoming has appealed from said decision, alleging that while the State does not admit that the land is valuable as coal land, it is willing to accept limited patent therefor, and should be allowed so to do, notwithstanding the fact that the act of June 22, 1910, supra, does not specifically provide for the allowance of schoolland indemnity selections upon public lands withdrawn or classified as coal lands. This contention is untenable, as the right of entry or selection of lands withdrawn or classified as coal lands or valuable for coal is expressly limited by the act in question to homestead entries by actual settlers, to desert-land entries, to selections under the Carey Act, and to withdrawals under the reclamation act of June 17, 1902 (32 Stat., 388), except in the case of entries, selections, or locations made prior to June 22, 1910. The Commissioner's decision was therefore correct. However, since the rendition of that decision, Congress, on April 30, 1912, extended the operation of the act of June 22, 1910, to

selection by the several States within whose limits the lands are situate under grants made by Congress, and to disposition, in the discretion of the Secretary of the Interior, under laws providing for the sale of isolated or disconnected tracts of public lands.

Under this act selections made by the several States under grants to them by Congress may be made upon lands which have been withdrawn or classified as coal lands or are valuable for coal, the patents issued therefor to contain a reservation to the United States of the coal in such lands and of the right to prospect for, mine, and remove the same.

The question involved in this case is whether the provisions of the act in question may properly be applied to selections heretofore made upon such lands and now pending. The act of April 30, 1912, states:

That from and after the passage of this act unreserved public lands of the United States, exclusive of Alaska, which have been withdrawn or classified as coal lands or are valuable for coal shall, in addition to the classes of entries or filings described in the act of Congress approved June twenty-second, nineteen hundred and ten, entitled, "An act to provide for agricultural entries on coal lands," be subject to selection by the several States.

The tender or filing of a school-land indemnity selection by a State in lieu of lands lost by it in place constitutes a mere offer of exchange, confers no vested right upon the selector, and does not prevent the taking or withholding of the land by the United States for public uses or purposes. The transaction is not complete, nor does

the right of the State vest until the acceptance and approval of the offer of exchange by the Secretary of the Interior. School indemnity selections offered by States for lands classified as coal or known to be valuable for such deposits could not, prior to April 30, 1912, be accepted or approved; but those selections offered and pending at the date of passage of the act of April 30, 1912, may, in the absence of intervening adverse rights, and upon proper elections filed by the States, now be allowed and accepted as of April 30, 1912, if there be no other objection, the right to offer exchange being extended by said act, and the Secretary of the Interior being therein authorized to accept the exchange upon conditions hereinbefore stated.

Indemnity selection 05040, Lander, with which there appears to have been filed a proper election in conformity with the requirements of the act of June 22, 1910, supra, and the regulations approved thereunder, is accordingly hereby remanded to the General Land Office for further proceedings in accordance with the views above expressed, and the Commissioner's decision of November 14, 1911, modified accordingly.

It is not necessary in the decision of this case to consider the effect, if any, of intervening adverse rights or claims.

COAL LAND-OPENING AND IMPROVING OF MINE.

The projection of underground workings from a tract of privately owned ground into an adjoining tract of public land, with a view to extracting the coal therefrom, such being the only feasible and practical method of opening up and mining the coal from such adjoining tract, followed immediately by the execution and filing of a declaratory statement giving notice of the extent of the coal lands claimed, constitutes the opening and improving of a mine within the meaning of the coal land laws. COAL-LAND ENTRY BY ASSOCIATION-EXPENDITURE PRECEDENT TO ENTRY. The expenditure of $5,000 required by section 2348 of the Revised Statutes to be made by an association of four or more qualified persons seeking to acquire title to 640 acres of coal lands is a condition precedent to the right to enter, but not a condition precedent to the right to file declaratory statement.

OPENING AND IMPROVING OF MINE-DECLARATORY STATEMENT-EXPENDITURE. A qualified association upon opening and improving a mine, accompanied by actual possession, and filing declaratory statement, becomes possessed of the right to assert exclusive claim to 640 acres of coal lands; and by thereafter seasonably expending $5,000 in working and improving the mine, becomes invested with the right to apply for, pay for, and enter such lands.