PUBLIC LAND-ORDER OF SURVEY,

GOWDY v. GILBERT.

A final decision of the Department directing the survey of a tract as public land, precludes the subsequent consideration of a claim thereto based on riparian ownership.

Secretary Smith to the Commissioner of the General Land Office, July 2, (J. I. H.) 1894. (G. B. G.)

The land involved in this case is lot 6 of Sec. 2, T. 15 N., R. 15 W., Grayling land district, Michigan. This description is based on a survey of said section, approved February 7, 1889, which was a second survey, or re-survey, of the section.

According to the original survey, approved June 28, 1839, the land in controversy was part of lots 2 and 4, as designated by the plat of such survey, said plat representing a lake as the western meander line of lot 2, and the northwestern line of lot 4.

According to the re-survey of February 7, 1889, the lines of these lots, as above referred to, fall a considerable distance south and east of the lake-shore, leaving a body of land containing 69.62 acres between said lots 2 and 4, and the shore of the lake as unsurveyed public land, which was then surveyed and is now known as lot 6, and this is the land in controversy in this suit.

It appears that the defendant herein, P. D. Gilbert, located as a homestead said lot 4, built his home at a point on said lot, as he believed, near the lake-shore, which point, under the last survey, is in lot 6.

Lot 4 was patented to Gilbert June 20, 1870, and by departmental decision of May 17, 1889, ex-parte Philoman D. Gilbert (8 L. D., 500), it was directed that the said Gilbert be allowed to make entry for lot 6 as an additional homestead entry, under the 6th section of the act of March 2, 1889, and that patent issue to him for said land on proof of compliance with the requirements of said act.

On June 18, 1889, the said Gilbert made homestead entry for said lot 6, which entry is still intact. On September 13, 1892, the plaintiff herein, A. C. Gowdy, filed in your office a protest against said entry, and requested that such entry be canceled, for the reason that it embraced a portion of the land entered by Gowdy more than twenty years ago.

Lot 2 was patented to the protestant Gowdy September 20, 1872. Said lot, under the survey approved June 28, 1839, contained 67.60 acres, and according to your office opinion,

Under the re-survey of section 2, approved February 7, 1889, the lines of the former survey of 1839, supra, were followed in every instance, and the boundary lines and areas of the subdivisions were in no wise changed by said subsequent survey, hence lot 2 now, as then, contained 67.60.

1801-VOL 19-2

This statement is made with special reference to the contention of protestant that the land in controversy had been previously patented to him, or more specifically stated, that lot 2 having been patented to him, it is contended that the western line of said lot was the lake-shore, that the land in controversy lying between the western line of said lot, according to the re-survey, and the shore of the lake, is land uncovered by the receding waters of the lake, and belongs to him by virtue of riparian proprietorship.

This is a question that has passed beyond the jurisdiction of the Department, and can only now be determined by the courts. The question as to the character of this land was fully determined by the Land Department before survey, and when said survey of lot 6 was ordered, the question as to the character of the land became res judicata. See Case v. Church (17 L. D., 578).

Gowdy's protest is therefore dismissed, and it appearing that the entryman Gilbert is entitled to said lot 6, by reason of his occupation and improvement, the decision appealed from is concurred in, and is therefore affirmed.

COAL ENTRY-EQUITABLE ACTION.

ANTHRACITE MESA COAL CO.

A coal entry allowed on defective declaratory statement and irregular proof may be equitably confirmed, in the absence of any adverse claim, where a proper declaratory statement is subsequently filed and the requisite additional proof furnished.

Secretary Smith to the Commissioner of the General Land Office, July (J. I. H.) (P. J. C.)

2, 1894.

The land involved in this appeal is the SE. 1 of the NE. 1, the NE. 4 of the SE. and the SE. of the SE. of Sec. 17, T. 13 S., R. 86 W., 6 P. M., Gunnison (formerly Leadville) land district, Colorado. It appears that coal entry No. 33, Leadville (Ute series), was made of this tract February 28, 1883, in the name of Wallace Bowman. This entry was made by one Howard F. Smith, under a power of attorney from one John H. Bowman, as attorney in fact for Wallace Bowman, appointing him-Smith-attorney in fact for Wallace Bowman. When this entry came up for consideration in your office, the attention of the local office at Gunnison was called to the irregularity by letter of June 7, 1884. They were advised that the regulations require the declaratory statement and affidavit to be made by the applicant himself, but as there was no adverse claim or conflict, it was ordered that Wallace Bowman be allowed to make his declaratory statement and affidavit and file the same nunc pro tune. It was also required by said letter that proof of possession by the agent must be furnished, under paragraph 17 of the regulations of July 31, 1882 (1 L. D., 687); also that

the power of attorney from Wallace Bowman to J. H. Bowman was not in the files, and that "where an agent is recognized he must appear under "sufficient power of attorney,"" under paragraph 34 of said regulations.

Thus the matter seems to have rested until November 16, 1892, when your office advised the local office that on a re-examination of the case it was found that the following was lacking: "1. The affidavits of two witnesses and agent showing that said land is chiefly valuable for coal; and, 2, proper evidence of citizenship of said Bowman."

On March 26, 1893, your office again took up the matter, and by letter of that date to the local office said, inter alia:

I am now in receipt of your letter of March 7, 1893, inclosing certain evidence called for by letter "N" of November 16, 1892, and reporting that the evidence required by said letter of June 7, 1884, has not been furnished.

Inasmuch as said evidence is material, and claimant has failed to furnish the same, the entry is accordingly held for cancellation.

From this decision the Anthracite Mesa Coal Mining Company, the alleged transferee of Wallace Bowman, has appealed.

Since the appeal was taken there has been filed in this office the affidavits of Wallace Bowman, called for by your office letter of June 7, 1884, that is, a declaratory statement and the affidavit required by paragraph 32; also his affidavit of citizenship, and still another affidavit, in which he states that John H. Bowman was appointed as his attorney in fact "by a duly executed power of attorney, with full authority to substitute an attorney in fact to act for affiant." These affidavits were made in the State of New York, and are dated June 8, 1893. It is stated by counsel that the reason for delay in presenting them was owing to the inability of the transferees to ascertain his whereabouts.

It seems to me that in view of the fact that there are no adverse claims to the land, your office order of June 7, 1884, may be now carried into effect. The original power of attorney from Wallace to John H. Bowman has not been supplied, but the former swears it was duly executed. In addition to this, the presumption would be that satisfactory evidence was presented to the local office of his appointment as such attorney in fact. (Frederick Rose, 18 L. D., 110.)

In view of the provisions of Rule 100 (Rules of Practice) permitting the filing of additional evidence in ex parte cases these affidavits have been considered. To avoid the further delay incident to referring the question back to your office for further consideration, in the light of this evidence, it is my opinion that these affidavits may be filed nunc pro tunc, and the matter then referred to the Board of Equitable Adjudication for its action. It is so ordered, and your said office judgment. is reversed.

RAILROAD GRANT-LANDS EXCEPTED.

HASTINGS AND DAKOTA RY. Co. v MARTIN.

Land embraced within a homestead entry at the date of the grant to this company is excepted therefrom, though said entry is canceled prior to definite location. The ruling of the supreme court in the case of Bardon v. Northern Pacific R. R. Co., as to the effect of a claim at the date of the grant to that company, is equally applicable to the Hastings and Dakota grant.

Secretary Smith to the Commissioner of the General Land Office, July 2, (J. I. H.) 1894.

(C. W. P.)

The land involved in the appeal from the decision of your office of October 29, 1892, denying the claim of the Hastings and Dakota Railway Company thereto, is lot 1 and the SE. of the NW. of Sec. 9, T. 115 N., R. 30 W., Marshall land district, Minnesota, and is within the primary limits of the grant made by the act of July 4, 1866 (14) Stat., 87), to aid in the construction of said railroad.

At the date of the granting act, said land was embraced in homestead entry No. 1561, made July 12, 1864, which was cancelled November 22, 1866, because of failure to comply with legal requirements, and which had ceased to exist at the date of definite location of the road June 26, 1867.

March 4, 1881, Catherine Martin made her homestead entry of said. land, and on February 9, 1886, final certificate was issued therefor. The Hastings and Dakota Railway Company claimed said land under its grant. But your office denied its claim. The railway company has appealed.

By departmental decision of November 15, 1892, in the case of Grinnell, et al. v. Hastings and Dakota Railway Company (15 L. D., 431), it was decided that lands embraced within a subsisting homestead entry at the date of the grant to said company, are excepted therefrom, although said entry may be cancelled prior to the definite location of the road. This decision was simply following the doctrine announced in the case of Bardon v. Northern Pacific Railroad Company (145 U. S., 535).

There is no force in the contention of the attorneys for the railroad company that the grant to it is distinguishable from the grant to the Northern Pacific Railroad Company, interpreted in Bardon v. Northern Pacific Railroad Company, supra.

The words in the third section of the grant to the Northern Pacific Railroad Company. (13 Stat., 365), on which the question turns, are: Whenever, prior to said time, (i. e., the definite location of the route of the road) any of said sections, or parts of sections, shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other land shall be selected by said company in lieu thereof.

The language of the corresponding provision in the grant to the Hastings and Dakota Railway Company (14 Stat., 87) is:

In case it shall appear that the United States have, when the lines or route of said roads are definitely located, sold any section or part thereof granted, as aforesaid, or that the right of pre-emption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the Secretary of the Interior to cause to be selected, for the purposes aforesaid, from the public lands of the United States nearest to the tiers of sections above specified, so much land in alternate sections, or parts of sections, designated by odd numbers, as shall be equal to such lands as the United States have sold, reserved, or otherwise appropriated, or to which the right of homestead or pre-emption has attached, as aforesaid.

In the former grant, the language is "Whenever, prior to said time, any of said sections, etc., shall have been granted, etc."; in the latter grant, "In case it shall appear that the United States have, when the lines or route of said roads are definitely located, sold, etc." I am not able to discover any distinction in the meaning of the two grants. The words "have sold", "has attached", and "has been reserved by the United States", when the lines are definitely located, surely mean before the lines have been definitely located.

I am therefore of opinion that there was no error in the decision of your office appealed from, and it is affirmed.

RAILROAD SELECTIONS—MINERAL LANDS.

INSTRUCTIONS.

Secretary Smith to the Commissioner of the General Land Office, July (J. I. H.) (J. L. McC.)

9, 1894.

In the matter of the selection, by railroad companies, of lands in satisfaction of their grants, the following rules and regulations will be observed in determining whether the lands selected are mineral or nonmineral lands:

(1) Where the lands have been returned by the surveyor-general as mineral, a hearing may be had to determine the character of the land, under Rules 110 and 111 of Rules and Regulations issued December 10, 1891, controlling the disposal of mining claims.

(2) Where the lands selected by the company are within a mineral belt, or proximate to any mining claim, the railroad company will be required to file with the local land officers an affidavit, by the land agent of the company, which affidavit shall be attached to said list when returned, setting forth in substance that he has caused the lands mentioned to be carefully examined by the agents and employés of the company, as to their mineral or agricultural character, and that, to the best of his knowledge and belief, none of the lands returned in said list are mineral lands.