MINERAL LAND-NON-MINERAL AFFIDAVIT-MISSISSIPPI, LOUISIANA,

ARKANSAS, FLORIDA.

INSTRUCTIONS.

Directions given that in all non-mineral entries of lands in the States of Mississippi, Louisiana, Arkansas, and Florida the same non-mineral affidavit be required, before the entry is permitted to go of record, as is required in other States to which the mining laws are applicable.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) November 14, 1901.

(A. B. P.)

By letter of May 27, 1901, you transmitted, for the consideration and approval of the Department, a draft of a proposed circular of instructions to be directed to the local land officers in the State of Louisiana, requiring non-mineral affidavits to be furnished by all applicants to make entry of the public lands in said State under other than the mining laws of the United States.

By act of June 21, 1866 (14 Stat., 66), Congress declared that the public lands in the States of Alabama, Mississippi, Louisiana, Arkansas, and Florida should be disposed of under the homestead law only; with the proviso "That no mineral lands shall be liable to entry and settlement under its provisions." This act was subsequently carried into sections 2302 and 2303 of the Revised Statutes, being part of the homestead law set forth in chapter 5 of title 32. Those sections read:

Sec. 2302. No distinction shall be made in the construction or execution of this chapter, on account of race or color; nor shall any mineral lands be liable to entry and settlement under its provisions.

Sec. 2303. All the public lands in the States of Alabama, Mississippi, Louisiana, Arkansas, and Florida shall be disposed of in no other manner than according to the terms and stipulations contained in the preceding provisions of this chapter.

By section 2318 of the Revised Statutes (Act July 4, 1866, Sec. 5; 14 Stat., 85-86), it is declared that

In all cases lands valuable for minerals shall be reserved from sale, except as otherwise directed by law.

By acts of July 26, 1866 (14 Stat., 251), July 9, 1870 (16 Stat., 217), May 10, 1872 (17 Stat., 91), March 3, 1873 (17 Stat., 607), and sections 2319 to 2352, inclusive, commonly designated as the United States mining laws, "all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed," were “declared to be free and open to exploration and purchase, by citizens of the United States and those who have declared their intention to become such,” etc., and provision was made for the disposal of such lands.

By acts of February 18, 1873 (17 Stat., 465; Sec. 2345, R. S.), and May 5, 1876 (19 Stat., 52), the States of Michigan, Wisconsin, Minnesota, Missouri, and Kansas were excluded from the operation of said. mining laws.

By act of July 4, 1876 (19 Stat., 73), it was enacted:

That section two thousand three hundred and three of the Revised Statutes of the United States, confining the disposal of the public lands in the States of Alabama, Mississippi, Louisiana, Arkansas, and Florida to the provisions of the homestead law, be, and the same is hereby, repealed.

By act of March 3, 1883 (22 Stat., 487), it was provided:

That within the State of Alabama all public lands, whether mineral or otherwise, shall be subject to disposal only as agricultural lands.

It is clear, from the foregoing, that at least since the act of July 4, 1876, whereby section 2303 of the Revised Statutes was repealed, the United States mining laws have been in force as to all public lands valuable for minerals in the States of Mississippi. Louisiana, Arkansas, and Florida, the same as in other public-land States, except those excluded by the acts of February 18, 1873, and May 5, 1876; and that said laws were in force in the State of Alabama, at least from July 4, 1876, until the passage of the act of March 3, 1883. A non-mineral affidavit, in case of a homestead or other agricultural entry, is just as necessary, under the law, in the States of Mississippi, Louisiana, Arkansas, and Florida as in any other of the public-land States to which the mining laws are applicable.

For the future guidance of the local officers in the States of Mississippi, Louisiana, Arkansas, and Florida, you are directed to furnish said officers with copies of this decision; and you will hereafter, in all non-mineral entries of lands in said States, require that the usual nonmineral affidavit (form 4-062) be filed before the entry is permitted to go of record, the same as required in other States to which the mining laws are applicable. (See General Circular, July 11, 1899. p. 87.)

It appearing that heretofore the practice has been not to require non-mineral affidavits in agricultural entries of lands in some of said States, the negative answers of applicants and witnesses on final proof to questions as to whether there were any indications of coal, salines, or minerals of any kind in the lands having been deemed a sufficient showing that the lands were non-mineral in character, it is directed that all such entries heretofore allowed, or which may be hereafter allowed prior to the receipt of notice of this decision at the local land offices in said States, shall be adjudicated under the practice which heretofore existed.

TIMBER-CULTURE ENTRY-CONTEST-RELINQUISHMENT.

STRADER v. GOODHUE.

The preferred right of entry accorded a contestant is not a vested right until he has “contested, paid the land office fees, and procured the cancellation" of the entry attacked.

An entryman may relinquish at pleasure any legal subdivision of his entry, if no transfer thereof has been made, and such relinquishment will take effect immediately upon its filing.

In case of a contest against a timber-culture entry on the ground of failure to plant the acreage required by law, the entryman may, prior to the trial, relinquish part of his entry and retain the remainder, if his compliance with law is such as to entitle him to patent for the unrelinquished tract.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) November 25, 1901. (J. R. W.)

May 6, 1901, departmental decision (unreported) affirmed your office decision of November 24, 1900, holding for cancellation the timber-culture entry of Justin A. Goodhue, for the SE. 4, Sec. 14, T. 5 N., R. 5 W., M. M., Boise, Idaho, in the contest of Jerome B. Strader against said entry.

Goodhue filed a motion for review of said departmental decision, which was entertained by the Department, August 13, 1901, and directed to be served. Service has been made, response filed, and the motion, arguments, and original record are before the Department for decision upon the merits.

No material disputed question of fact exists in the case. Goodhue made timber-culture entry December 17, 1887. December 23, 1898, Strader filed a contest affidavit against the entry, charging that Goodhue has not planted to trees ten acres of the land, as required by law, or at all. April 25, 1899, there was a hearing at the local office, at which contestant appeared in person and with counsel, and defendant by counsel. Before the trial defendant's counsel filed a relinquishment for the south half of the tract, and demanded immediate cancellation of the entry as to that tract, which the local office at contestant's objection refused. Contestant amended his complaint to charge that about five acres of natural timber were growing on the SW. 4 of the SW. of said section 14 at the time of said entry. Trial was had June 5, 1899. February 2, 1900, the local office found in favor of contestant and recommended cancellation of the entry.

The evidence shows that there was not such a natural growth of trees upon this section as to exclude it from timber-culture entry; that defendant had planted and cultivated but about five acres of trees, and by irrigation had on that tract secured a vigorous growth of timber, stated to number some 15,000; thirteen acres additional were broken, reclaimed, and cultivated to alfalfa. These results were secured by an

expenditure of about $2,000, and defendant claimed that his deficiency in area of land successfully cultivated to timber was due to a mistake and erroneous information that the number of healthy living trees would be taken into consideration, and excuse literal compliance with the requirement of area. Your office decision held:

The right of the contestant is determined by the status of the land and entry when contest is instituted, and his right to proceed against the entry cannot be defeated by a subsequent relinquishment (9 L. D., 440, 461; 29 L. D., 471 [171?]. It is further held that a timber culture entryman cannot, where contest is brought against his entry, avail himself of a partial compliance with the law to retain a proportionate part of the land entered (13 L. D., 459).

It is clearly established-in fact is not denied-that the defendant has not complied with the law in the matter of the area of trees planted. At best he can be said to have planted but five acres in the manner in which the law required ten acres to be planted. Whatever other expenditure he may have made upon the tract, he was clearly in default in that material particular, a default so serious as to be fatal.

There is thus presented a record in which, had the entry originally made been for the north half only of the quarter section, it would have shown so full and unquestioned compliance with the law as to be not only beyond attack, but to merit special commendation.

It is not the opinion of the Department, on reconsideration of the case, that any rule of law or of former decisions requires so severe a decision of the present case as that under review.

The preference right is not a right vested until a contestant has "contested, paid the land office fees, and procured the cancellation" of the entry attacked. This is the plain wording of the acts of May 14, 1880 (21 Stat., 140), and July 26, 1892 (27 Stat., 270). The contestant's preference right is in the nature of a reward offered to an informer. The general rule as to the vesting of right under such statutes accords with the plain wording of this statute-viz: that the right does not become vested until judgment, and may be cut off (1) by a repeal of the statute (United States v. Connor, 138 U. S., 61); (2) by a pardon (United States v. Harris, 1 Abbott, U. S., 110; United States v. Lancaster, 4 Wash., U. S., 64; Brown . United States, 1 Wool., U. S., 198); or by remission of the penalty by competent authority pending the proceedings (United States. Morris, 10 Wheat., 246). So in many decisions of the Department it is held that a contestant gets no preference right unless the relinquishment is the result of the contest.

An entryman may relinquish at pleasure to the government any governmental subdivision of his entry, if no transfer has been made. (Smith. Crawford, 4 L. D., 449; Joseph Hurd, 2 L. D., 317; Alfred Anscomb, 26 L.D., 337, 339; Walters . Northern Pacific R. R. Co., 23 L. D., 492, 494.) A relinquishment takes effect at once upon its filing. The local office, therefore, erred in not accepting and noting the relinquishment offered.

Had they done so, the contestant's preference right would have at once attached. He could then have determined whether he would prosecute the contest as to the remainder of the entry.

A review of published departmental decisions fails to disclose any decision that a relinquishment of part of an entry may not be made before trial of a pending contest. Webb . Loughrey et al., 9 L. D., 440; Brakken. Dunn et al., 9 L.D., 461, and Hornsby . Carson et al., 29 L. D., 171, were cases wherein relinquishments were made of the entire tract pending contest, thereby taking the entryman out of the case as no longer a party in interest, and a third party claimed right to make entry. The question determined in those cases was, whether the contestant could be defeated of his preference right. The cases properly decided that the contestant may prove his charge and establish his preference right. To hold that a relinquishment filed pending contest defeated the preference right would practically nullify the statute by giving the entryman in every contest power to do so. Abbott . Willard, 13 L. D., 459, was where a relinquishment of part of an entry to save the remainder intact was first applied for, after trial in the local office, on the appeal to your office. It was an attempt to change the issue after the trial was had. The issue tried, the costs of which the contestant had borne, was as to the validity of the entire entry. The contestant at his own expense contested and had procured a cancellation of the entry as far as the trial court could go. The subsequent proceedings were appellate only, and the contestant ought not to be defeated by defendant's election to relinquish part of the land during the appellate proceedings. He is entitled to a judgment upon the issues and proceedings had. The case was, therefore, correctly decided.

The present case is clearly distinguishable from any of the foregoing. The relinquishment was filed before trial. The contestant, before any costs accrued, got half the land. He had no vested right by the mere filing of complaint, before judgment, to take from defendant $2,000 of improvements, which standing on half of the land he could not assail, and which the entryman seeks to save by relinquishment of half the ground.

Under the supervisory power of the Secretary of the Interior, as head of the land department, he has all the powers for protection of equities arising from fraud, accident, mistake, part performance, or other head of equitable jurisdiction, that a court of chancery would have. This doctrine is clearly announced in Williams . United States (138 U. S., 514, 524), and where, as in this case, an entryman has obviously strong equities, and presents and claims them before putting the contestant to the costs of a trial, by filing a relinquishment, so as to conform his entry to what he can properly claim under the law, then, independently of any question of strictly legal right of an