Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D) July 2, 1902. (A. S. T.)

On February 4, 1901, Homer E. Brayton, as assignee of John T. Pistole, applied to make soldier's additional homestead entry for the SW. of the SE. 4 of Sec. 20, T. 28 S., R. 61 W., 6th P. M., Pueblo land district, Colorado.

On April 18, 1902, your office rejected said application on the ground that the tract applied for is embraced in the selection of the Rocky Ford Canal Reservation Land and Loan Trust Company, under the act of March 3, 1891 (26 Stat., 1095), the map of location having been filed February 2, 1898, and approved August 10, 1899. The applicant has appealed to this Department.

The question presented for consideration is, whether or not the filing and approval of the map, as required by the 19th section of said act, has the effect to withdraw the land embraced therein from other disposition by the United States.

Said section provides that

upon the approval thereof [of the map] by the Secretary of the Interior, the same shall be noted upon the plats in said office [the local office], and thereafter all such lands over which such rights of way shall pass shall be disposed of subject to such rights of way.

It is thus expressly provided by the statute that after the approval of the map the lands over which such right of way shall pass "shall be disposed of subject to such rights of way."

In departmental regulations concerning right of way for canals, ditches, and reservoirs over the public lands and reservations, approved June 27, 1900 (30 L. D., 325), it is provided that:

The act is not in the nature of a grant of lands; it does not convey an estate in fee in the right of way. It is a right of use only, the title still remaining in the United States. All persons settling on a tract of public land, to part of which right of way has attached for a canal, ditch, or reservoir, take the same subject to such right of way, and at the full area of the subdivision entered, there being no authority to make deduction in such cases.

The approval of the map did not have the effect to vest the title to the land in the company, but it still remains in the United States, the company having the right only to use the land, which may be disposed of subject to that right.

There appears, therefore, to be no reason why the applicant may not make entry for the land subject to the right of said company.

Your said decision is therefore reversed, and if there be no other objection, said entry will be allowed, subject to the right of said company to use the land for the purpose of a reservoir.

OKLAHOMA LANDS-COMMUTATION-SEC. 22, ACT OF MAY 2, 1890ACT OF MARCH 11, 1902.

MATTIE H. BEAL.

Judicial proceedings instituted to compel the Secretary of the Interior, by writ of mandamus, to allot certain lands to a member of the Comanche tribe of Indians, under the agreement ratified by the act of June 6, 1900, with said Indian tribe, the courts, so far as the matter has proceeded, having ruled against the petition for mandamus, will not prevent the commutation of a homestead entry for townsite purposes, under section 22 of the act of May 2, 1890, and the act of March 11, 1902, of the land involved.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) July 8, 1902.

(W. C. P.) Mattie H. Beal, having applied to commute for townsite purposes, under section 22, act of May 2, 1890 (26 Stat., 81, 91), and act of March 11, 1902 (Public-No. 37), her homestead entry made August 6, 1901, for the S. SE. 4, SE. † SW. 1, and lot 4, Sec. 31, T. 2 N., R. 11 W., I. M., Lawton, Oklahoma, land district, the matter has been submitted for my consideration by your office letter of the 23rd ultimo, recommending the approval of the proofs and plat if the present status of judicial proceedings affecting part of this land do not suspend or prevent such action.

This land is a part of the Comanche, Kiowa and Apache lands which were opened to settlement and entry August 6, 1901, in the manner prescribed in the President's proclamation of July 4, 1901 (31 L. D., 1). August 5, 1901, one Emmett Cox, claiming to be a member of the Comanche tribe and entitled to an allotment of three hundred and twenty acres of land under article six of the treaty with said Indians of August 28, 1868 (15 Stat., 581), and to one of one hundred and sixty acres under the agreement ratified by act of June 6, 1900 (31 Stat., 672, 676), filed his petition in the supreme court of the District of Columbia, praying for a writ of mandamus commanding the Secretary of the Interior to approve selections made by him in satisfaction of his said claimed rights, and to allot him the lands thus designated. The SE. 4, Sec. 31, T. 2 N., R. 11 W., I. M., is the onchundred-and-sixty-acre tract applied for by Cox under the agreement ratified by act of June 6, 1900.

August 6, 1901, Acting Secretary Ryan sent the local land officers at Lawton a telegram as follows:

You are advised that Emmett Cox has instituted judicial proceedings in the District of Columbia to secure an order of court directing the Secretary of the Interior to allot to him the southeast quarter, section twenty-five, township two north, range twelve west, or the southeast quarter, section thirty-one, township two north, range eleven west; and directed to inform any person applying to enter said lands of the pending litigation, and note the fact on the papers and record that entry thereof is allowed subject to such suit.

Cox's petition was denied by the supreme court of the District of Columbia in a decision rendered August 27, 1901. Upon appeal to the court of appeals of the District of Columbia, that decision was affirmed March 4, 1902. From this decision an appeal was asked by the petitioner to the supreme court of the United States, but it has not been perfected.

August 28, 1901, the Department wrote the Commissioner of the General Land Office as follows:

A decision was rendered August 27, 1901, by Justice Barnard of the supreme court of the District of Columbia, in the cases of Willis C. West and others, involving lands in the Lawton land district, and of Emmett Cox, involving lands in the Lawton land district. By this decision the petitions asking that the Secretary of the Interior be commanded by mandamus to approve the applications of the several petitioners for allotments as members of the Wichita and affiliated bands and of the Kiowa, Comanche and Apache tribes, respectively, were denied. From that decision the petitioners have prayed an appeal. This appeal will not, however, operate as a supersedeas. You will advise the local officers of the status of these proceedings and direct them to inform all homestead applicants for the lands involved, which lands were described in departmental telegrams of the 6th inst. to the respective officers, of that status.

Prior to the issuance of the President's proclamation of July 4, 1901, and prior to the commencement of this litigation, the Secretary of the Interior had held that Cox had not taken or acquired a threehundred-and-twenty-acre allotment under article six of the treaty of 1868, and therefore was not entitled to receive such an allotment under article eight of the agreement ratified June 6, 1900, and also at the same time held that he had theretofore under said agreement selected and received another allotment of one hundred and sixty acres and was not entitled to change it to the said SE. of section 31. This litigation does not constitute a bar in law to the allowance of a commutation of the entry in question. That entry was originally made with notice of Cox's claim, and if under these circumstances the entryman is willing to assume any risk incident thereto and insists on being allowed to make final entry, no impropriety is involved in permitting it to be done. The entryman was not a party to the mandamus proceding, nor does that proceeding constitute an appropriate method of determining controverted or conflicting claims to public or Indian lands. Brown . Hitchcock (173 U. S., 473, 478). When this Department shall, in due course of administration, have determined. these conflicting claims and have issued a patent to the successful claimant, then any further controversy will be an appropriate subject of judicial cognizance and “the litigation will proceed, as it generally ought to proceed, in the locality where the property is situate, and not here, where the administrative functions of the government are carried on."

Nothing has occurred or been presented since the departmental

decision adverse to Cox which has changed or tended to change the opinion of the Department; and the mandamus proceeding, which has been held by two courts to be not well taken, does not furnish any sufficient reason for postponing the homestead entryman in obtaining a completion of the entry in a lawful manner. Instead of Cox being thereby deprived of a forum, the way will be opened for him, if he so desires, to go into the courts of the locality in a proceeding directed against an adverse claimant and not against a government officer, and in which the court can fully correct any mistake of law which could be corrected or prevented by the mandamus proceedings.

There is no pending contest against Beal's entry, nor is there any protest against the proposed commutation thereof. The proofs and plat have been examined, and are found, as stated by you, to be correct in form and sufficient in substance. The proof has therefore been accepted and the plat approved.

CONFIRMATION-SECTION 7, ACT OF MARCH 3, 1891.
INSTRUCTIONS.

An adverse report upon an entry, by a special agent of the government, filed within two years from the date of the final receipt issued upon such entry, is a "protest against the validity of such entry" within the meaning of the proviso to section 7 of the act of March 3, 1891, and the land department is warranted in making an investigation of such entry before passing it to patent.

Secretary Hitchcock to the Commissioner of the General Land Office, (S. V. P.) July 9, 1902. (E. F. B.)

The Department is in receipt of your letter of April 9, 1902, requesting to be advised as to whether, under the facts set forth therein, the entry in a case now pending in your office is confirmed by the proviso to section 7 of the act of March 3, 1891 (26 Stat., 1095), which reads as follows:

That after the lapse of two years from the date of the issuance of the receiver's receipt upon the final entry upon any tract of land under the homestead, timber culture, desert land or pre-emption laws, or under this act, and where there shall be no pending contest or protest against the validity of such entry, the entryman shall be entitled to a patent conveying the land by him entered, and the same shall be issued to him; but this proviso shall not be construed to require the delay of two years from the date of said entry, before the issuing of a patent therefor. The receiver's receipt upon the final entry in the case referred to was issued October 26, 1897. Said entry was suspended by your office, December 16, 1899, upon the report of a special agent, made October 16, 1899, and filed in your office October 23, 1899. It thus appears that while your office did not suspend the entry until after two years from the date of the issuance of the receiver's receipt upon final entry,

a report by a special agent against the validity of the entry has been filed in your office prior to the expiration of two years from the date of the final receipt.

In the instructions of May 8, 1891 (12 L. D., 450), the Department, in construing this provision of the act of March 3, 1891, said:

Under the proviso to said section 7, after the lapse of two years from the date of the issuance of the receiver's receipt upon the final entry of any tract of land under the laws mentioned, when there are no proceedings initiated within that time by the government or individuals, the entryman shall be entitled to patent.

The words "contest" and "protest" as used in the act were held to refer to proceedings against an entry initiated by individuals; but it was said that:

Nothing herein contained shall be construed as to prevent the government from completing proceedings initiated by it within the two years after the issuance of the receiver's receipt.

In the instructions of July 1, 1891 (13 L. D., 1), given in response to a letter from your office asking to be advised with reference to two cases in which your office had canceled the entry in one case and suspended it in the other, the Department, referring to that part of the instructions of May 8, 1891, first above quoted, and after stating that the question is, "What action on the part of the government will amount to the initiation of such proceedings," said:

The word "proceedings," as used herein and in the circular of May 8, 1891 (12 L. D., 450), will be construed as including any action, order or judgment had or made in your office canceling an entry, holding it for cancellation, or which requires something more to be done by the entryman to duly complete and perfect his entry, and without which the entry would necessarily be canceled.

See Bulman v. Meagher (13 L. D., 94); Jennie Routh, (Ib.. 332); United States v. McTee et al. (Ib., 419).

But it has never been held that the proceedings specially mentioned in the instructions of July 1, 1891, are the only proceedings that can be taken by the government to defeat the confirmation of an entry, except in the case of United States v. Childs (13 L. D., 553), in which it was held that an order of the Commissioner, made within two years from date of entry, directing a special agent to investigate it-was not an “action, order, or judgment had or made in your office, canceling an entry, holding it for cancellation," nor did it "require anything more to be done by the entryman to complete his entry." The order to the special agent, and his report after investigation, in this case can not be held to be such an institution of proceedings within two years from the date of the final certification as will prevent the confirmation of the entry under the proviso to section seven of the act of Match 3, 1891.

That decision follows literally the instructions of July 1, 1891, and rejects every mode of proceeding or action that does not come strictly within the proceedings or actions enumerated in the instructions, although in that case the action of your office was clearly within the spirit of the instructions.

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