Page images
PDF
EPUB

they are rendered non-contiguous by intervening patented or entered claims, can be located, applied for, and entered, under the mining laws, if at all, only as separate and distinct claims.

The decision of your office, holding the entry for cancellation, is accordingly affirmed, and the entry is hereby canceled.

RAILROAD LANDS-RELINQUISHMENT-ACT OF JULY 1, 1898.
OTIS S. SANDERS.

In the case of an unperfected claim, the relinquishment contemplated by the act of July 1, 1898, is of the whole thereof, and where such claim includes land in both odd- and even-numbered sections, and the individual claimant as against the Northern Pacific Railroad Company had, prior to the execution of a relinquishment under said act of the portion in the odd-numbered section, made entry for that portion of the claim within the even-numbered section, such partial relinquishment of the claim should not be accepted as a basis for the transfer of that portion of the claim to other lands.

Acting Secretary Ryan to the Commissioner of the General Land (S. V. P.) Office, July 25, 1900. (F. W. C.)

Otis S. Sanders has appealed from your office decision of January 24, last, rejecting his application to select, under the act of July 1, 1898 (30 Stat., 597, 620), the NW. of SE. of Sec. 6, T. 16 N., R. 7 W., Olympia land district, Washington, in lieu of lots 1 and 4, Sec. 9, T. 16 N., R. 8 E., his claim to which was relinquished under said act. It appears that on July 10, 1894, Sanders tendered a homestead application covering the S. of the SW. 4 of Sec. 4, and lots 1 and 4, Sec. 9, T. 16 N., R. 8 W., which application was rejected by the local officers as to the portion in the odd-numbered section for conflict with the grant to the Northern Pacific Railroad Company, from which action Sanders appealed to your office.

Following the passage of the act of July 1, 1898, supra, providing for the adjustment of conflicting claims to lands within the limits of the grant to the Northern Pacific Railroad Company, to wit, on April 24, 1899, your office directed the local officers to advise Sanders of the privileges accorded him by said act, either to relinquish his claim in conflict with the railroad grant and select other land in lieu thereof, or to retain the same, whereupon the company would be invited to relinquish its claim.

In the following month, to wit, on May 25, 1899, he made homestead entry for the S. of the SW. of Sec. 4, being the portion of the land in the even-numbered section embraced in his application originally tendered on July 10, 1894, and on September 25, following, executed a relinquishment of his claim to lots 1 and 4 of Sec. 9. This relinquishment appears to have been accepted by your office on October 13, 1899, without reference to the fact that he had not relinquished 24368 Vol. 30—13

his entire claim as shown by his application tendered on July 10, 1894, and notwithstanding the fact, as must have been shown by your office records, that he had on May 25, 1899, made homestead entry for the portion of the land in the even-numbered section.

The act of July 1, 1898, merely provided for the transfer of the claim asserted by the individual claimant as against the railroad grant. Paragraph 36 of the regulations issued under said act, approved February 14, 1899 (28 L. D., 113), provided

Where lands are selected by an individual claimant in lieu of lands the claim to which has not been carried to final entry and certificate, or to the submission of final proof entitling him to final entry and certificate, the claimant will be required to perfect his right to the lands selected by compliance with the law relating to that class of claims, and to submit proof thereof in the usual way, but credit will be given for his bona fide residence, improvements, cultivation, or reclamation, as the case may be, and for any payment of fees or purchase money upon the land relinquished, it being the purpose of the act to give individual claimants the same status with respect to the lieu lands selected by them which they occupied with respect to the lands relinquished.

It will be necessary, therefore, for Sanders to reside upon and otherwise comply with the homestead law upon the land selected in lieu of his claim in conflict with the railroad grant. This he could not do without abandoning his homestead entry, made prior to his relinquishment, for the portion of the tract in Sec. 4 covered by his original application. It further appears from his appeal that he has contracted with the railroad company for the purchase of lots 1 and 4 in Sec. 9, covered by his homestead application, and his claim to which was subsequently relinquished, as before stated. Whether this contract, which recognized the railroad claim, was made prior to the execution of his relinquishment under the act of July 1, 1898, does not appear, but as he states that he has already made two payments on account of said contract it probably was. If he had, prior to the execution of said relinquishment, entered into a contract with the railroad company for the purchase of the tract in the odd-numbered section, it may be, in view of his entry of the even-numbered section, that he did not have a contest with the railroad company which was subject to adjustment under the act of July 1, 1898, at the date of his relinquishment.

Under the circumstances, this Department must set aside the action. taken by your office in accepting the relinquishment executed by Sanders, under the act of July 1, 1898, for only a portion of his claim. For this reason the action of your office in rejecting his application to select another tract in lieu of lots 1 and 4 in Sec. 9, is affirmed. Further consideration of his right to relinquish his entire claim and select other lands in lieu thereof, as provided for in the act of July 1, 1898, is at this time unnecessary.

HAWAII-LEASES-SECTION 73, ACT OF APRIL 30, 1900.

INSTRUCTIONS.

Section 73 of the act of April 30, 1900, relative to the leasing of agricultural land in the Territory of Hawaii, does not apply to "homestead leases" or "right of purchase leases" for which provision had theretofore been made in the Hawaiian laws.

Acting Secretary Ryan to Hon. Sanford B. Dole, Governor of Hawaii, (S. V. P.) July 27, 1900. (W. C. P.)

The Department is in receipt of your communication of the 10th instant, desiring instructions as to whether the provision in section 73 of an act of Congress entitled "An act to provide a government for the Territory of Hawaii," approved April 30, 1900, "and no lease of agricultural land shall be granted, sold or renewed by the government of the Territory of Hawaii for a longer period than five years until Congress shall otherwise direct," applies to homestead leases and right of purchase leases.

Said section 73 provides:

That the laws of Hawaii relating to public lands, the settlement of boundaries, and the issuance of patents on land-commission awards, except as changed by this act, shall continue in force until Congress shall otherwise provide.

An examination of the laws of Hawaii in connection with the provision of the territorial act referred to by you leads to the conclusion that your opinion that it was not intended that said provision should apply to homestead leases or right of purchase leases is justified. The homestead lease being for nine hundred and ninety-nine years and reserving no rent is, as you say, in effect the conveyance of the fee and is given after compliance with certain requirements as to residence upon and improvement and cultivation of the land very similar to the requirements of the homestead law in force in other parts of the United States.

The so-called right of purchase lease is a part of the proceedings in another method for the acquisition of public lands. It was evidently not intended to change the existing provisions of the Hawaiian law by which title to the public lands may be acquired, but it was the intention to continue those provisions in force for the present, at least.

You are therefore instructed that the provision of the territorial act. referred to does not apply to homestead leases or right of purchase leases.

INDIAN LANDS-COMMUTATION-ACT OF MAY 17, 1900.

NEZ PERCE CEDED LANDS.

The commutation provision contained in section 2301, Revised Statutes, is applicable to Nez Perce ceded lands, but "the minimum price" provided for therein must, under the act of May 17, 1900, be determined without reference to that provision of the act of August 15, 1894, which requires each settler to pay $3.75 per acre for said lands, and as though no such provision had ever been made. Acting Secretary Ryan to the Commissioner of the General Land Office, (S. V. P.) July 27, 1900. (W. C. P.)

The local officers at Lewiston, Idaho, having asked whether parties who wish to commute their homestead entries on Nez Perce ceded lands after the passage of the act of May 17, 1900 (Public--No. 105), will be required to pay $3.75 per acre or $1.25, you instructed them that the payment of the first-named price would be required, but that no injustice may be done you have submitted the matter to the Department for consideration and further instruction, if it is deemed necessary.

The requirement by which these lands were ceded by the Indians was approved by the act of August 15, 1894 (28 Stat., 286, 326), and it was directed that they should be subject to disposal "only under the homestead, town-site, stone and timber, and mining laws," with a proviso as follows:

Provided, That each settler on said lands shall, before making final proof and receiving a certificate of entry, pay to the United States for the lands so taken by him, in addition to the fees provided by law, the sum of three dollars and seventyfive cents per acre for agricultural lands, one-half of which shall be paid within three years from the date of the original entry; and the sum of five dollars per acre for stone, timber, and mineral lands, subject to the regulations prescribed by existing laws.

It was held that commutation of homestead entries might be allowed by the payment of the designated price for agricultural lands. The present inquiry arises in connection with the act of May 17, 1900, known as the "Free Homesteads Act," which provides-

That all settlers under the homestead laws of the United States upon the agricultural public lands, which have already been opened to settlement, acquired prior to the passage of this act by treaty or agreement from the various Indian tribes, who have resided or shall hereafter reside upon the tract entered in good faith for the period required by existing law, shall be entitled to a patent for the land so entered upon the payment to the local land officers of the usual and customary fees, and no other or further charge of any kind whatsoever shall be required from such settler to entitle him to a patent for the land covered by his entry: Provided, That the right to commute any such entry and pay for said lands in the option of any such settler and in the time and at the prices now fixed by existing laws shall remain in full force and effect.

The law providing for the disposal of these lands contained no specific mention of section 2301, Revised Statutes, which relates to the

commutation of homestead entries. The homestead laws were, however, made applicable thereto, no exception being stated as to the commutation provisions, as was done in many of the acts providing for the disposal of lands acquired from the Indians. For this reason it was held that said provisions applied and that the minimum price of said lands should be the price specified in the act subjecting said lands to disposal, that is, $3.75 per acre. There is now, however, no requirement for the payment of that price in the case of a homestead entry perfected by the required period of residence, and hence there is no provision of law making the minimum price of these lands $3.75 per acre. The commutation provision contained in section 2301, Revised Statutes, is applicable to these lands, but "the minimum price” provided for therein must be determined without reference to that provision of the act of August 15, 1894, supra, which required each settler to pay $3.75 per acre for said lands and as if no such provision had ever been made.

RAILROAD GRANT-ADJUSTMENT—ACTS OF MARCH 3, 1887, AND MARCH

2, 1896.

CHICAGO, MILWAUKEE AND ST. PAUL RY. Co.

If in the adjustment of a railroad grant it appears that homestead or pre-emption claims have been erroneously canceled for conflict with the grant, the claimants should be notified and given opportunity to make application for reinstatement under the third section of the act of March 3, 1887, and to submit a showing in support thereof; and the title of any purchaser through the railroad company, to any of the land embraced in such homestead or pre-emption claim, will not be declared confirmed by the act of March 2, 1896, until after due opportunity to the claimant to make such application and showing. Where title to lands erroneously certified or patented to or for a railroad company is adjudged to have been confirmed in a purchaser by the act of March 2, 1896, demand for the value of such lands should be made of the company for whose specific benefit they were certified or patented.

Acting Secretary Ryan to the Commissioner of the General Land Office, (S. V.P.) July 31, 1900. (F. W. C.)

With your office letter of February 2, last, was submitted a preliminary statement of the adjustment of the grant made to the State of Minnesota by the act of July 4, 1866 (14 Stat., 87), to aid in the construction of a railroad from Houston, Minnesota, to the western boundary of the State. Said grant was by the State conferred upon the Southern Minnesota Railway Company. By mesne conveyances all the land certified to and inuring on account of said grant and then undisposed of, passed to the Chicago, Milwaukee and St. Paul Railway Company in 1886.

Upon the completion of said adjustment it appeared that 12.381.34

« PreviousContinue »