OKLAHOMA LAND-HOMESTEAD-COMMUTATION-ACT OF JUNE 6, 1900. INSTRUCTIONS.

Commutation may be allowed of all homestead entries made under the act of June 6, 1900, without reference to whether the entryman had previously commuted an entry under section 2301 of the Revised Statutes.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) December 22, 1902. (G. B. G.) Your office communication of December 10, 1902, recites that one E. P. McMahon has entered, at Lawton, Oklahoma, a tract of land under the act of June 6, 1900 (31 Stat., 672, 676, 679–680), and that previous to making such entry he had made an entry of a tract of land in South Dakota, and perfected the same by commutation under section 2301 of the Revised Statutes; that he now seeks to commute the entry made in Oklahoma under the said act of June 6, 1900; and that in view of the fact that there are a number of persons occupying the same status who desire and are offering to make commutation proof upon the lands entered by them in Oklahoma, and in view of the fact that a decision by your office upon this question might not be sustained by the Department, and might therefore result in harm, a question is submitted, whether under the law these entries may be commuted to cash. The act of June 6, 1900, supra, provides that lands acquired by agreement from the Comanche, Kiowa, and Apache tribes of Indians, in the Indian Territory, of which these lands seem to be a part, shall be open to settlement "under the general provisions of the homestead and townsite laws of the United States," subject to several provisos, one of which is:

That in all homestead entries where the entryman has resided upon and improved the land entered in good faith for the period of fourteen months, he may commute his entry to cash upon the payment of one dollar and twenty-five cents per acre.

By an act of June 5, 1900, entitled, "An act for the relief of the Colorado Cooperative Colony, to permit second homesteads in certain cases, and for other purposes" (31 Stat., 267, 269-270), it is provided:

That any person who has heretofore made entry under the homestead laws and commuted the same under the provisions of section twenty-three hundred and one of the Revised Statutes of the United States, and the amendments thereto, shall be entitled to the benefits of the homestead laws as though such former entry had not been made, except that commutation under the provisions of section twenty-three hundred and one of the Revised Statutes shall not be allowed of an entry made under this section of this act.

In view of these statutes, the question submitted is, whether the provisions of the act of June 5, 1900, above quoted, operate as a limitation upon that provision of the act of June 6, 1900, which authorizes the commutation of "all homestead entries" of lands acquired by agreement with the Comanche, Kiowa, and Apache tribes of Indians.

Your office suggests that no such limitation exists, and the Department is constrained to concur in this view.

The provision referred to in the act of June 5, 1900, is a general one, while that referred to in the act of June 6, 1900, is special. To the extent, therefore, that they are in conflict the later statute would prevail, and the later statute provides that commutation may be allowed of all homestead entries made under that act, without reference to the fact whether the entryman had previously commuted an entry under section 2301 of the Revised Statutes. Moreover, the provision in the act of June 5, 1900, limiting the right of commutation to instances where the entryman had not theretofore commuted an entry under the provisions of section 2301, only applies to entries made under that act, and the entries in question were not made, and commutation is not sought, under the act of June 5, 1900.

The Department is of opinion that there is nothing in the act of June 5, 1900, which operates to prevent the completion by commutation of homestead entries made under the act of June 6, 1900.

PRIVATE CLAIM-RIGHT OF PURCHASE-SEC. 7, ACT OF JULY 23, 1866.

COUTS v. STRICKLER ET AL.

(RANCHO BUENA VISTA.)

The use of uninclosed land for the pasturing of stock, and the exclusion of others therefrom by means of a keeper or herder, constitutes possession thereof, within the meaning of section 7, act of July 23, 1866.

The word "improved" as used in said section contemplates the utilization of the lands applied for under said section for some recognized purpose of settled and civilized life, not necessarily by the erection thereon of buildings like houses and barns, especially where such structures are located on adjacent land and are adapted to use on the land applied for. Lands so used and occupied are within the intendment of the statute.

The right of purchase under said section is not defeated by adverse settlement claims, acquired after the passage of said act, with full knowledge and notice of the right asserted by the grant claimant to the lands upon which settlement was so made.

Acting Secretary Ryan to the Commissioner of the General Land (W. V. D.) Office, December 27, 1902.

(J. R. W.)

Cave J. Couts, administrator of the estate of Cave J. Couts, deceased, appealed from your office decision of May 28, 1902, rejecting his application, under section 7 of the act of July 23, 1866 (14 Stat., 218), to purchase certain lands on final survey excluded from the Rancho Buena Vista, Los Angeles land district, California.

December 27, 1897, the administrator of the estate of Cave J. Couts, deceased, filed in the office of the surveyor-general for California his application to purchase certain lands excluded from the final survey of the Rancho Buena Vista. As the survey ordered for connecting

the public surveys with the final survey of the grant was not completed, the applicant did not describe by legal subdivisions the tracts applied for, but filed a map showing their location and a chain of conveyances from the original grantee, making a prima facie case. Several settlers filed protests against Couts's application, and your office directed a hearing at the local office between the applicant and the protestants to determine the applicant's rights under said act. July 9, 1901, the parties appeared in person and with counsel and fully participated in a hearing. March 7, 1902, the local office found in favor of the applicant, and recommended that the application be allowed and the protests be dismissed. Your office reversed the action of the local office and rejected the application.

The origin, extent, and history of the Buena Vista grant and proceedings had for its survey and location will be found at 1 L. D., 210; 2 Ib., 366, 370; 5 Ib., 559; 6 Ib,, 41; 13 Ib., 84; 14 Ib., 259; 19 Ib., 201; to which reference is here made.

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July 8, 1845, a grant was made by the Mexican authorities to the Indian "Felipe"" to the extent of half a square league," not described by boundaries, and directing juridical possession to be given, which act took place August 5, 1845, and the location and extent were described as "commencing at one of the boundaries of" Felipe's garden, thence east, south, west, north, 2,500 varas, describing a square and mentioning monuments. The square was half a league each side and contained but a quarter of a square league of land, which was only half the quantity stated in the grant. April 14, 1879, after proceedings not here necessary to recite, a decree was entered by the district court of the United States for the district of California, as of February 1, 1856, confirming the grant:

To the extent of one-half of a square league of land, a little more or less, being the same land which was situated in the county of San Diego known by the name of Buena Vista, and bounded and described as follows:

reciting the points, courses, distances, and monuments given in the act of juridical possession, so that while the decree in terms confirmed the grant to the extent of half a square league, the ambit of the grant described in the act of juridical possession and decree called for but half that area.

Six surveys of the grant have been made. The first was by Deputy Surveyor Hays, September, 1858, for a tract 134.49 chains by 165 chains, containing 2,219.08 acres, half the area of a square league, and was approved by the surveyor-general October 19, 1858. There was an error in this survey in connecting it with the township line between township 11 south, ranges 3 and 4 west, whereby it was indicated on his plat to lie about a mile east of its actual location on the ground, as shown by his monuments. The survey was not published as required by law until 1884, pursuant to your office letter of April 9, 1883 (1 L. D., 210). This survey was for such error rejected by

your office decision of May 27, 1884 (2 L. D., 366), and a new survey ordered. At that time your office decision held that:

The claim in the present case was confirmed by the boundaries set forth in the decree, being the same designated in the act of juridical possession, and was for the. land included within said boundaries. The clause following the specification of boundaries—"containing in all one-half of a square league of land" — is clearly an estimate merely, and not intended as a limitation of quantity within the boundaries. The measurements mentioned are only the estimated distances between the boundaries forming the corners of the tract. This is manifest from the declaration in the confirmatory clause of the decree, "that the said claim be, and the same is hereby, confirmed to the extent of one-half of a square league of land, a little more or less, .bounded and described as follows."

The Hays survey is rejected for the erroneous connections in its plat and descriptive notes, and for the further reason that it identifies and conforms to but one of the boundary calls-that which is made the southwest corner--and a new survey is hereby directed to be made to conform to the described boundaries as nearly as practicable. It should adopt the northwest corner as located by Strobel, "on a hill where is a big rock;" the southwest corner, as described by Hays and located by Minto, on top of a red hill; and it would seem that the southeast corner, "a small peak, where stand two rocks joined together," might be found and identified by the description thereof given.

Other surveys were made, not necessary here to discuss, and a final one was made by Deputy Surveyor Treadwell, in 1893 and 1895, which was approved, and May 6, 1897, patent issued thereon. By the final survey and patent 1,184.89 acres were included and conveyed under the grant, and almost half the land included in the Hays survey of 1858 was excluded therefrom.

In the meantime, through mesne conveyances and proceedings in probate, the Buena Vista Rancho came to Maria Ygnacia Morena de Alvarado, from whom Cave J. Couts, November 28, 1866, purchased this with other lands for a consideration therein stated to be $3,000 paid, and the deed described the premises conveyed as:

The land and rancho Buena Vista, containing two thousand two hundred and nineteen acres of land, more or less, which was granted to Felipe Tubua in the month of July, of the year one thousand eight hundred and forty-five, more amply described according to the survey which was made by John C. Hayes, surveyor-general of the United States for the State of California.

The local office and your office found upon the evidence that Couts and his predecessors in estate recognized as the west boundary of the grant a road from Milpitas to Guajome, which touches the northwest corner, and in two miles diverges westward to about one-third of a mile from the southwest corner of the Hays survey of the grant.

The first settlers went on the land June 21, 1886, and by concert made a journey of several days in different ways so as to arrive together. Before setting out they knew the land was claimed to be part of the Buena Vista grant claimed by Couts. Before they went on the land they had an examination of the old Spanish archives, got a copy of the record pertaining to this grant, and employed a surveyor who lived in the vicinity. Prior to their settlement the W. of sec

tion 19, the NW. of section 30, township 11 south, range 3 west, and the S. of section 24 and N. of section 25, township 11 south, range 4 west, were in large part plowed and cultivated by Couts and those holding under him, and his stock, in charge of a keeper, was ranging on the land he applies to purchase, but there were no buildings or fences on the land they settled on. Couts warned them the day after their arrival and before they made any improvements that he claimed the land as part of the Buena Vista grant. They perfectly knew they were entering upon land he was claiming, but were of opinion upon examination of the facts that upon a proper construction and location of the grant the land was not embraced within its actual boundaries. The event proved that their conclusions were well founded. The grant has been finally surveyed and patented, and the land is excluded from it. The present claim, an application by Couts to purchase, is not a claim that the land was included within the grant, but is based on the fact that it was not so included, but that the facts are such that he is within the benefits of the act of July 23, 1866, and he is therefore entitled to purchase it. The act provides:

That where persons in good faith and for a valuable consideration have purchased lands of Mexican grantees or assigns, which grants have subsequently been rejected, or where the lands so purchased have been excluded from the final survey of any Mexican grant, and have used, improved, and continued in the actual possession of the same as according to the lines of their original purchase, and where no valid adverse right or title (except of the United States) exists, such purchasers may purchase the same, after having such lands surveyed under existing laws at the minimum price, established by law, upon first making proof of the facts as required in this section, under regulations to be provided by the Commissioner of the General Land Office.

The settlers' contentions are that the proofs fail to show that the land in question was purchased by Couts in good faith for value; that they were used, improved, and continued to be held in actual possession according to the lines of his original purchase; that they are not proved to be non-mineral; that the applicant is not qualified to make the purchase as Couts's legal representative; that adverse rights exist in the settlers which bar the purchase.

The evidence shows that the several grant claimants asserted and maintained exclusive right of possession westward from the ranch house to the Milpitas road, which was close to the west boundary of the grant as surveyed by Hays. Before Couts's purchase, Soto, and after his death Mrs. Soto and her second husband Alvarado, exercised such dominion and assertion of right as also did Couts after his purchase. At the time of Couts's purchase, November, 1866, the Hays survey had subsisted more than eight years approved by the surveyorgeneral, and was referred to in the deed of conveyance as defining the lands purchased, both as to location and quantity. Had there been no survey the Milpitas road, being recognized as the western boundary of the grant, or even an imaginary line between two fixed points. 6855-Vol. 31-01-29