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8. One who is in the situation where the title acquired and now being acquired by him under the public land laws, in pursuance of entries made since August 30, 1890, with the tract now sought to be entered will make in the aggregate more than three hundred and twenty acres of nonmineral land.

Approved:

E. A. HITCHCOCK,

Secretary.

BINGER HERMANN,
Commissioner.

DESERT LAND ENTRY-ANNUAL PROOF-CONTEST.

JULIAN. HARDING.

A contest charging a desert land entryman with failure to make the requisite annual expenditure, thus putting in issue the truth of the yearly proof offered by the entryman, may be brought prior to the expiration of the time allowed for the submission of final proof.

The case of Andrew Clayburg, 20 L. D., 111, cited and distinguished.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) July 8, 1901. (L. L. B.)

This is an appeal by the heirs of Gardner F. Harding from your office decision of July 12, 1900, holding for cancellation the desert land entry of said Harding, embracing lots 1 and 2, and the E. NW. and the NE. 4, Sec. 7, T. 14 S., R. 93 W., Montrose, Colorado, land district, containing approximately three hundred and twenty acres, constituting the north half of said section 7.

The entry was made August 12, 1895, and June 22, 1898, George Julian filed contest against said entry alleging, upon his information and belief, that the said entryman has wholly failed to make any material expenditures as required by law, that said tracts and no part thereof have been irrigated, reclaimed, or cultivated, as required by law, and that Harding had abandoned said tracts since making his entry. The affidavit was corroborated by two witnesses, also upon information and belief.

On the day named in the notice for the hearing (August 10, 1898) the contestant appeared, with his witnesses, and discovering that service of notice was defective, the hearing was postponed, for service, until November 19, 1898. It was afterwards, for the same purpose, continued to December 30, 1898, at which time the defendant appeared by counsel and moved to dismiss the contest, for the following reasons:

First: That the register and receiver are without jurisdiction to entertain this contest, for the reason that the records of the Montrose, Colorado, land office, disclose that the claimant had at the time this contest was filed fully complied with the laws relating to the annual expenditure in desert land entries, and the proof of the same,

and that therefore his entry was and still is incontestable. (See case of Andrew Clayburg, 20 L. D., 115.)

Second: That the affidavit of contest on file herein does not state facts sufficient to constitute a valid ground of contest.

Third: That the evidence of contestant and his witnesses does not establish a state of facts sufficient to justify the cancellation of the entry in controversy.

Fourth: That the evidence of contestant does not support and sustain the allegations of his affidavit of contest.

Fifth: That it appears from the records of the local land office that claimant's entry was made on August 12, 1895; that on August 19, 1896, yearly proof was transmitted to the Gen. L. O. May 5, 1897, yearly proof was transmitted to the Gen. L. O. August 10, 1897, 2d yearly proof (amended) was transmitted to the Gen. L. O., for the year ending Aug. 12, 1897. March 8, 1898, 3d yearly proof was transmitted to the Gen. L. O.; that it appears from the above notations that claimant has complied with his duties as to filing proofs of expenditure and that no contest can be legally initiated against his entry on the ground that he has not made the yearly expenditures required by law at this time.

The motion was denied, and the defendant not offering to submit any testimony in support of the entry, the local officers recommended the cancellation of the entry upon evidence theretofore submitted by the contestant by permission of the register and receiver.

The record does not disclose any objection by defendant as to the manner or time of submitting the testimony on the part of contestant, and it does not appear that any other objection was made to it, except as disclosed in the motion to dismiss-namely, that it was insufficient to justify cancellation of the entry.

After the proceedings in the local office and appeal to the General Land Office, to wit, July 23, 1899, the entryman died, and the appeal to the Department was taken and is being prosecuted by his heirs.

The specifications of error, condensed, are as follows: that it was error not to sustain motion to dismiss; that the evidence at the hearing is insufficient to overcome showing made by claimant's annual proof; that the evidence does not sustain the allegations of contest, and that it was error not to hold that the evidence of contestant and his witnesses "was incompetent, irrelevant, and immaterial."

The record discloses that prior to the initiation of the contest the claimant had submitted the three years' annual proof required by the statute, in which he testified, corroborated by two witnesses, that he had expended the first year $340 in work on Overland Ditch, for conveying water to the land; the same amount and for the same purpose the second year; and $325 the third year.

The evidence submitted at the hearing shows that there has been nothing done on the land by way of ditching, preparation for irrigating, fencing, or other improvement-in short, that the land is in the same condition that it was at the date of entry.

It further appears that the entryman had worked for the Overland Ditch Company in constructing the ditch intended to supply water for

this and other entries, but that he had been fully paid by the company for all work so done by him, amounting in all to about $175. For this labor so performed and paid for, the entryman attempted to get credit in his three annual proofs for the yearly expenditures of a dollar per acre required by statute. His annual proofs were, of course, false and fraudulent, inasmuch as they allege an expenditure each year of at least $320, when in fact there had been nothing expended by the entryman.

It is insisted by counsel for defendant that, under the law as announced in the case of Andrew Clayburg (20 L. D., 111), contests can not be brought against desert land entries until the expiration of the time allowed for making final proof; that the submission of the yearly proofs disclosing the required annual expenditures is a bar to the initiation of a contest prior to the submission of final proof. This means that, although, as in this case, such annual proofs are untrue, and the claimant has totally failed to comply with the law as to annual expenditure on the land, yet if he files each year evidence of such expenditure, he is protected against contests. In other words, even if he is in default as to actual compliance with the requirements of the statute, yet so long as he is willing to falsely testify that he is not in default, and can procure two other affiants to corroborate such testimony, his compliance with law can not be questioned within the time allowed for the submission of his final proof, until which time his entry must stand intact.

This contention can not receive departmental approval.

This question is well considered and discussed in your office decision, holding that the case of Andrew Clayburg has application to ex parte cases solely and can not be invoked as against a contestant. This construction is in harmony with the General Circular of 1899, wherein (page 43) it is said: "In ex parte cases the entryman's right to the land will not be passed upon until submission of final proof," in support of which statement the said Clayburg case is cited.

To hold that a contest putting in issue the truth of the yearly proof could not be brought within the time allowed for the submission of final proof, would be in violation of the plain letter of the statute.

Section 2 of the act of March 3, 1891, amending the desert-land act (26 Stat., 1095, 1097), in sub-section 7 provides

that the claims or entries, made under this or any preceding act, shall be subject to contest as provided by the law relating to homestead cases, for illegal inception, abandonment, or failure to comply with the requirements of law, and upon satisfactory proof thereof shall be canceled.

The yearly expenditure of one dollar per acre is a requirement of law, and the failure to do this is a "failure to comply with the requirements of law.”

The decision appealed from is affirmed.

REGULATIONS CONCERNING RIGHT OF WAY OVER PUBLIC LANDS AND RESERVATIONS FOR TELEGRAPH AND TELEPHONE LINES, ELECTRICAL PLANTS, CANALS, RESERVOIRS, TRAMROADS, ETC.

CIRCULAR.

The following regulations are promulgated under the acts of Congress approved February 15, 1901 (31 Stat., 790), January 21, 1895 (28 Stat., 635), and section 1 of the act of May 11, 1898 (30 Stat., 404). The act of February 15, 1901, supra, entitled "An act relating to rights of way through certain parks, reservations, and other public. lands," is as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Interior be, and hereby is, authorized and empowered, under general regulations to be fixed by him, to permit the use of rights of way through the public lands, forest and other reservations of the United States, and the Yosemite, Sequoia, and General Grant national parks, California, for electrical plants, poles, and lines for the generation and distribution of electrical power, and for telephone and telegraph purposes, and for canals, ditches, pipes and pipe lines, flumes, tunnels, or other water conduits, and for water plants, dams, and reservoirs used to promote irrigation or mining or quarrying, or the manufacturing or cutting of timber or lumber, or the supplying of water for domestic, public, or any other beneficial uses to the extent of the ground occupied by such canals, ditches, flumes, tunnels, reservoirs, or other water conduits or water plants, or electrical or other works permitted hereunder, and not to exceed fifty feet on each side of the marginal limits thereof, or not to exceed fifty feet on each side of the center line of such pipes and pipe lines, electrical, telegraph, and telephone lines and poles, by any citizen, association, or corporation of the United States, where it is intended by such to exercise the use permitted hereunder or any one or more of the purposes herein named: Provided, That such permits shall be allowed within or through any of said parks or any forest, military, Indian, or other reservation only upon the approval of the chief officer of the Department under whose supervision such park or reservation falls and upon a finding by him that the same is not incompatible with the public interest: Provided further, That all permits given hereunder for telegraph and telephone purposes shall be subject to the provisions of title sixty-five of the Revised Statutes of the United States, and amendments thereto, regulating rights of way for telegraph companies over the public domain: And provided further, That any permission given by the Secretary of the Interior under the provisions of this act may be revoked by him or his successor in his discretion, and shall not be held to confer any right, or easement, or interest in, to, or over any public land, reservation, or park.

1. This act, in general terms, authorizes the Secretary of the Interior, under regulations to be fixed by him, to grant permission to use rights of way through the public lands, forest and other reservations of the United States, and the Yosemite, Sequoia, and General Grant national parks in California, for every purpose contemplated by acts of January 21, 1895 (28 Stat., 635), May 14, 1896 (29 Stat., 120), and section 1 of the act of May 11, 1898 (30 Stat., 404), and for other purposes additional thereto, except for tramroads, the provisions relating to tramroads, contained in the act of 1895 and in section 1 of the act of

1898 aforesaid, remaining unmodified and not being in any manner extended.

Although this act does not expressly repeal any provision of law relating to the granting of permission to use rights of way, contained in the acts referred to, yet, considering the general scope and purpose of the act, and Congress having, with the exception above noted, embodied therein the main features of the former acts relative to the granting of a mere permission or license for such use, it is evident that, for purposes of administration, the later act should control in so far as the same pertains to the granting of permission to use rights of way for purposes therein specified. Accordingly all applications for permission to use rights of way for the purposes specified in this act must be submitted thereunder. Where, however, it is sought to acquire a right of way for the main purpose of irrigation and for public or other purposes as subsidiary thereto, as contemplated by sections 18 to 21 of the act of March 3, 1891 (26 Stat., 1095), and section 2 of the act of May 11, 1898, supra, the application must be submitted in accordance with the then existing regulations issued under said acts. (For present regulations, see 30 L. D., 325.)

2. It is to be specially noted that this act does not make a grant in the nature of an easement, but authorizes a mere permission in the nature of a license, revocable at any time, and it gives no right whatever to take from the public lands, reservations, or parks, adjacent to the right of way, any material, earth, or stone for construction or other purpose.

3. Application for permission to use the desired right of way through the public lands, reservations, and parks designated in the act must be filed and permission granted, as herein provided, before any rights can be claimed thereunder. Such application should be made in the form of a map and field notes, in duplicate, of the center line of the right of way or of the pipe, telegraph, telephone, or electrical line, canal, conduit, or reservoir, and must be filed in the local land office for the district in which the land traversed by the right of way is situate; if in more than one district, duplicate maps and field notes need be filed in only one district and single sets in the others. The maps, field notes, evidence of water rights, etc., and, when the applicant is a corporation, the articles of incorporation and proofs of organization, must be prepared and filed in accordance with the then existing regulations, under the general right-of-way acts (for present regulations under said acts see 27 L. D., 663, and 30 L. D., 325), appropriate changes being made in the prescribed forms so as to specify and relate to the act under which the application is made. Permission may be given under this act for rights of way upon unsurveyed lands, maps to be prepared in accordance with the requirements of the circulars noted.

4. An affidavit that the applicant is a citizen of the United States

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