Page images
PDF
EPUB

reservations, established and to be established under the act of March 3, 1891 (26 Stat., 1095, 1103), one of which is the following:

That in cases in which a tract covered by an unperfected bona fide claim or by a patent is included within the limits of a public forest reservation, the settler or owner thereof may, if he desires to do so, relinquish the tract to the government, and may select in lieu thereof a tract of vacant land open to settlement not exceeding in area the tract covered by his claim or patent; and no charge shall be made in such cases for making the entry of record or issuing the patent to cover the tract selected: Provided further, That in cases of unperfected claims the requirements of the law respecting settlement, residence, improvements, and so forth, are complied with on the new claims, credit being allowed for the time spent on the relinquished claims.

By a subsequent act, approved June 6, 1900 (31 Stat., 588, 614), it was declared:

....

That all selections of land made in lieu of a tract covered by an unperfected bona fide claim, or by a patent, included within a public forest reservation, as provided in the act of June fourth, eighteen hundred and ninety-seven, . . . . shall be confined to vacant surveyed non-mineral public lands which are subject to homestead entry not exceeding in area the tract covered by such claim or patent: Provided, That nothing herein contained shall be construed to affect the rights of those who, previous to October first, nineteen hundred, shall have delivered to the United States deeds for lands within forest reservations and make application for specific tracts of lands in lieu thereof.

December 14, 1899, C. W. Clarke filed in the local office at Visalia, California, two separate selections of lands, in lieu of an equal quantity of lands of which he had become the owner, covered by a patent from the United States and situate within the limits of a public forest reservation. As these selections were filed before October 1, 1900, they are to be governed by the original act, and a consideration of the amendatory act is not here necessary. One of the selections embraces the N. of the SE. 4 of Sec. 4, T. 29 S., R. 28 E., M. D. M., and the other the S. of the NE. of said section 4. That the lands within the forest reservation, in lieu of which the selections were made, were seasonably and properly relinquished to the United States, and that the relinquishment was accompanied by a showing of full and unincumbered title in the selector to the relinquished lands, are matters which are not questioned by protestants or your office. Each selection was by an application made out upon a printed form in which no changes were made other than the filling in of blanks. The form of application so used is as follows:

[blocks in formation]

GENTLEMEN: In accordance with the provisions of an act of Congress approved June 4, 1897, entitled "An act making appropriations for sundry civil expenses of

I,

the Government for the fiscal year ending June 30, 1898, and for other purposes," of ...... County, State of .......... do hereby select and locate the following described tract of

land, to wit:

In lieu of

The said last mentioned tract is included within the limits of the ...... Forest Reservation in ......, and being the owner, and desiring to select other land in lieu of said tract, I made and executed a deed of reconveyance thereof to the United States on the ... day of..., 189., as provided by the said Act of June 4, 1897, which said deed has been recorded in the proper county. I therefore ask that a United States patent issue to me for the land hereby selected. Witness my hand this .... day of

Post Office Address ...

[ocr errors]

18...

The application or selection was accompanied in each instance by an affidavit also made out upon a printed form. Portions of the printed matter in this form were erased and interpolations were made in other portions thereof before the affidavit was verified or filed. The form of affidavit so used, with the erasures shown in small capitals, and the interpolations shown in italics, is as follows:

(Act June 4, 1897.)

AFFIDAVIT OF NON-MINERAL CHARACTER AND NON-OCCUPANCY.

U. S. LAND Office,

being duly sworn according to law deposes and says: that he is over the age of 21 years, a citizen of the United States and of the State of ...... and a ................ by ................ and is well acquainted with the character of the following described land and with each and every legal subdivision thereof, to wit:

.....

THAT THERE IS NO OCCUPATION OF SAID LAND ADVERSE TO THE SELECTION THEREOF UNDER THE ACT OF JUNE 4, 1897, BY That the tract applied for is agricultural in character and contains no known deposits of coal, or other minerals, and is not subject to entry under the coal or mineral land laws of the United States; This affidavit is made upon the evidence found upon the surface of the ground. Deponent does not undertake to express any opinion as to what may be under the ground.

That he has frequently passed over the same and his personal knowledge of said land is such as to enable him to testify understandingly in regard thereto; that there is not to his knowledge, within the limits thereof, any vein or lode of quartz or other rock in place, bearing gold, silver, cinnabar, lead, tin or copper, or any deposit of coal; that there is not within the limits of said land, to his knowledge, any placer, cement, gravel, or other valuable mineral deposits; THAT NO PORTION OF SAID LAND IS

CLAIMED FOR MINING PURPOSES UNDER THE LOCAL CUSTOMS OR RULES OF MINERS OR

OTHERWISE; that no portion of said land is worked for mineral during any part of the year by any person or persons; that said land is essentially non-mineral land and that the application therefor is not made for the purpose of fraudulently obtaining

title to mineral land, but with the object of securing said land for agricultural purposes, so far as deponent knows; and that the above and foregoing statements as to the character of said land apply to each and every legal subdivision thereof, and that his post-office address is

February 6, 1900, the Kern Oil Company filed a protest against both selections. The allegations of the protest and of the affidavits accompanying the same, are, in substance and effect, as follows: That the Kern Oil Company and its predecessors in interest were, at the date of the filing of said selections, and have been continuously since that time, in the possession and occupancy of the lands covered thereby, claiming, working, and developing the same under certain placer mining locations, made June 11, 1899, known as the "Fossil" and 'June Bug" claims; that said lands are of great value for the deposits of petroleum oil contained therein, were known to be valuable for such deposits when the said selections were filed, and are worthless for agricultural purposes; that the lands lie in one of the greatest mineral oil belts in the State of California, and in the immediate vicinity of other valuable oil mining claims; that the oil-bearing formation underlying the land is flat or horizontal, known as a blanket formation; that Clarke well knew the mineral character of the lands when he selected the same; and that the filing of said selections was an endeavor on his part to fraudulently obtain title to mineral lands under the act of June

4. 1897.

February 12, 1900, J. F. Elwood et al. filed separate protests against said selections. Possession and occupancy of the lands for oil mining purposes and their known mineral character, at the date when the selections were filed, as well as the worthlessness of the lands for agricultural purposes, are alleged in these protests substantially as in the former protest, and it is further stated that the lands are worth $250 cash per acre on account of the mineral oils contained in them.

The protests and accompanying affidavits were, in due course of business, forwarded to your office, accompanied by the recommendation of the local officers that a hearing be had thereon.

Additional affidavits were subsequently flled on behalf of the protestants. These relate chiefily to work done on the lands by the mineral claimants after the protests were filed, in the boring of wells and the further development of the mining claims, and are generally to the effect that large quantities of oil have been and are being taken from these claims, and that the lands covered thereby, as well as those in the vicinity thereof, have become and are immensely valuable on account of their oil-bearing character.

By decision of December 18, 1900, your office held that the allegations made in the protests against the selections should be investigated,

and gave directions for a hearing. The principles announced in the decision as a guide for the conduct of the hearing, briefly stated, are:

(1) That rights predicated upon the act of June 4, 1897, do not attach to lands selected thereunder until the selector has done all that he is by the law required to do, and the selection has been approved by the land department;

(2) That in the present case the selections have not yet been approved by the land department, and consequently the lands embraced therein have remained open to occupancy or exploration for minerals, and evidence with respect to their present condition, as to whether vacant or occupied, and with respect to their present character, as to whether known to contain valuable mineral deposits or not, is admissible upon an investigation had for the purpose of determining whether or not the selections shall be approved.

Clarke has appealed to the Department. His principal contentions, substantially stated, are:

(1) That the equitable title to lands selected under the act of June 4, 1897, in lieu of patented lands relinquished, vests at the date of selection, and can not be impaired by subsequent mineral discoveries in the lands;

(2) That lands are vacant and open to settlement, and hence subject to selection under said act, when no other claim thereto is disclosed by the land office records, unless, at the date of selection, they are known to contain minerals to such an extent as to make them more valuable on account thereof than for agricultural purposes;

(3) That the protests do not show the selected lands to have been covered by any other claim of record, or to have been known to be more valuable for mineral than for agricultural purposes, at the date when the selections were filed, and are therefore insufficient to justify a hearing.

The opposing contentions of the protestants, appellees, substantially stated, are:

(1) That all lands selected under said act in lieu of relinquished forest reserve lands covered by patent remain open to exploration under the mining laws until the approval of the selection by the land department, and if at any time after the selection and before its approval, the selected land is discovered to contain valuable mineral deposits, its mineral character will be thereby established and the selection defeated..

(2) That lands are vacant and open to settlement, and therefore subject to selection under said act, only when they are unoccupied by others, are free from other claim of record, and are non-mineral in character;

(3) That the protests in this case show, prima facie, that the selected lands were occupied by others claiming possessory title thereto under

mining locations duly made and legally asserted, at the date when the selections were filed; that the lands were then known to be mineral in character; and that petroleum oil in large quantities and of great value has been since developed thereon.

It is admitted by the appellant that by reason of mining developments on the lands since the selections were filed, they are now known to be very valuable for the deposits of mineral oils contained in them, and that the protestants, appellees, are in the possession thereof and are daily extracting large quantities of oil therefrom.

Extensive and elaborate printed briefs on behalf of the contending parties have been filed, and the case has been argued orally with great ability and earnestness by counsel on both sides.

The first general legislation on the subject of forest reservations is found in section 24 of the act of March 3, 1891 (26 Stat., 1095, 1103), which reads as follows:

That the President of the United States may, from time to time, set apart and reserve, in any State or Territory having public land bearing forests, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations, and the President shall, by public proclamation, declare the establishment of such reservations and the limits thereof.

As was

By virtue of the authority thus conferred numerous forest reservations have been established in various States and Territories. said in the case of F. A. Hyde et al. (28 L. D., 284, 266):

By the establishment of these reservations many claimants and owners of lands within the reservation boundaries were placed in a state of greater or less isolation from market and business centers, and from church, school, and social advantages, and the value of their property for residence and other purposes was thereby impaired. The withdrawal from settlement and other disposition of the surrounding public lands precluded such persons from obtaining the advantages consequent upon the continuing and increasing settlement which was anticipated when their claims were initiated or their title acquired.

It was with the view to relieving the situation thus described and to promoting the objects for which the reservations were established, that the act of June 4, 1897, was passed. Those objects were, as declared in that act, to improve and protect the forests in the reservations for the purpose of securing conditions favorable to a continuous water flow and to a permanent supply of timber for the use and necessities of the citizens of the United States. Manifestly the government would be greatly assisted in accomplishing the objects desired by securing exclusive ownership and control of the lands within the reservations. The act in question contains an offer by the government to exchange any of its lands that are vacant and open to settlement for a like quantity of lands, within a forest reservation, for which a patent has been issued, or to which an unperfected bona fide claim has been acquired. If he desires to accept the offered exchange, the owner or claimant of the tract in the forest reservation can relinquish the same to the govern

« PreviousContinue »