HOMESTEAD ENTRY-CONTIGUITY OF TRACTS.

PIERRE LAUZON.

A homestead entry may stand intact though it includes tracts that according to the public survey are non-contiguous, by reason of their lying on both sides of a meandered lake, where it appears that said tracts in fact form a compact body of land, and a fractional quarter section, and where the rights of the entryman are entitled to an equitable consideration.

Secretary Smith to the Commissioner of the General Land Office, October (J. I. H.) 10, 1894. (F. W. C.)

I have considered the appeal by Pierre Lauzon from your office decision of March 10, 1893, holding for cancellation his homestead entry No. 13,195, made September 7, 1885, for lots 2, 3, 4, and 5, Sec. 34, T. 47 N., R. 27 W., St. Cloud land district, Minnesota, upon which final certificate No. 7936 was issued July 26, 1892, for the reason that the land embraced in said entry is non-contiguous, being situated on both sides of a meandered lake according to the plat of survey on file in your office.

It appears that on October 12, 1892, your office suspended said entry and required the entryman to elect which portion of the entry he would retain, in answer to which he makes affidavit to the fact that the land entered is a compact body of land and that the return in the survey is erroneous, due either to fraud or mistake.

In support of these allegations the affidavit of the county surveyor is furnished, which shows that instead of being one continuous lake running across the section, there are two lakes, the distance between. them being eighty-eight rods, and that the land between said lakes is from twenty to fifty feet above the level of said lakes; consequently, the change is not due to the drying up of the lake but rather to error in representing the same in the return of the government survey. He is also corroborated by two other witnesses.

Without considering the question as to the correctness of the original survey, these affidavits clearly establish the fact that said lots now form a compact body of land. Further, that they are within the boundaries, and form the fractional SE. 4, of said Sec. 34.

The records of your office show that filings have been made for the SE. as a body, and that several parties had made filings embracing said lots 2, 3, 4 and 5, prior to the entry by Lauzon, which, however, they failed to perfect.

It must also be remembered that Lauzon was permitted by the local officers to make entry of this land in 1885; that he has since shown compliance with law and final certificate has issued upon his entry. It would therefore work a great hardship to Lauzon to now cancel his entry on account of non-contiguity, or to require him to eliminate onehalf of his entry.

It also appears that the surrounding lands have all been entered, and even if the lots on either side of the lake represented in the plat were eliminated from the entry, they would form isolated tracts of such a small area that their disposition would hardly be likely in the usual course of disposing of public lands.

I must, therefore, reverse your action and direct that the entry be considered upon its merits as regularly allowed.

DESERT LAND ENTRY-ACT OF AUGUST 4, 1894.

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, D. C., October 11, 1894.

REGISTERS AND RECEIVERS,

United States Land Offices,

GENTLEMEN: Your attention is called to an act of Congress, approved August 4, 1894 (Public 159), entitled "An act for the relief of persons who have filed declarations of intention to enter desert lands," a copy of which is hereto annexed.

In accordance with the first provision of said act, you will in all cases where a desert land entry was made between January 1, 1890, and August 4, 1894, withhold notice of the expiration of the statutory period for making final proof, until the expiration of five years from the date of such entry.

Another provision of the bill suspends for the year eighteen hundred and ninety-four the requirement that persons who have filed declarations of intention to enter desert lands shall expend the full sum of one dollar per acre during each year toward the reclamation of the land, and such annual expenditure for that year, and the proof thereof, is dispensed with.

Inasmuch as the annual expenditure and proof thereof may be made at any time prior to the expiration of the year within which such expenditure is required, you will withhold notices of a failure to submit yearly proof in all cases where the same would have been due in 1894, if this act had not been passed. In such cases the yearly proofs must be made on or before the dates in 1895, that correspond to the dates in 1894 when said proofs would otherwise have been required.

Under the terms of the act the annual expenditures for the year 1894, and proof thereof are dispensed with, consequently parties who made desert land entries during 1894, prior to the passage of said act are not required to make any expenditure during the present year, but the year within which they will be required to make such expenditure and proof will begin January 1, 1895.

The proviso to the act is sufficiently explicit, but it may be said that it is not construed as waiving the expenditure of the full sum of three dollars per acre before the submission of final proof.

AN ACT for the relief of persons who have filed declarations of intention to enter desert lands. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases where declarations of intention to enter desert lands have been filed, and the four years' limit within which final proof may be made had not expired prior to January first, eighteen hundred and ninety-four, the time within which such proof may be made in each such case is hereby extended to five years from the date of filing the declaration; and the requirement that the persons filing such declarations shall expend the full sum of one dollar per acre during each year toward the reclamation of the land is hereby suspended for the year eighteen hundred and ninety-four, and such annual expenditure for that year, and the proof thereof, is hereby dispensed with: Provided, That within the period of five years from filing the declaration satisfactory proof be made to the register and receiver of the reclamation and cultivation of such land to the extent and cost and in the mauner provided by existing law, except as to said year eighteen hundred and ninety-four, and upon the payment to the receiver of the additional sum of one dollar per acre, as provided in existing law, a patent shall issue as therein provided. Approved August 4, 1894.

EASTMAN v. WISEMAN.

Motion for review of departmental decision of April 4, 1894, 18 L. D., 337, denied by Secretary Smith, October 12, 1894.

ENTRY-LIMITATION OF ACREAGE-ACT OF MARCH 3, 1891.
W. R. HARRISON.

An entry of land, valuable only for the timber and stone thereon, should not be included in the maximum amount of lands that may be acquired under the limitation imposed by the act of August 30, 1890, as construed by the subsequent act of March 3, 1891.

Secretary Smith to the Commissioner of the General Land Office, October (J. I. H.) 12, 1894.

(I. D.)

W. R. Harrison, assignee of S. N. Harrison, appeals from your office decision of February 10, 1893, holding cash entry No. 2810 for cancella

tion, involving the SE. of NW. 4, and NE. of SW. 4, Sec. 9, T. 32, R. 14 E., M. D., Susanville land district, California.

November 11, 1891, S. N. Harrison made desert entry for W., Sec. 15, T. 29 N., R. 15 E., containing three hundred and twenty acres.

On July 2, 1892, he made cash entry for the tract first herein described, containing eighty acres. This last entry, and the testimony sustaining it, shows that the tract is valuable only for the timber and, perhaps, for stone, but is unfit for cultivation and "will be unfit for cultivation when the timber is removed."

The act of August 30, 1890 (26 Stat., 391), limits the amount of land that may be acquired by one person under any of the land laws, to three hundred and twenty acres "under all of said laws.”

Your office decision is based on that act, and holds the cash entry of the eighty-acre timber tract for cancellation by reason of the prior entry of three hundred and twenty acres of agricultural lands.

If the act cited stood alone, your office decision would be clearly cor rect, but the act of March 3, 1891 (26 Stat., 1101), has restricted the limitation of the act of August 30, 1890, to "agricultural lands" in these words:

The provision of An act making appropriations for sundry civil expenses of the government for the fiscal year ending June 30, 1891, and for other purposes,' which reads as follows, viz: No person who shall after the passage of this act enter upon any of the public lands with a view to occupation, entry, or settlement under any of the land laws, shall be permitted to acquire title to more than three hundred and twenty acres in the aggregate under all said laws,' shall be construed to include in the maximum amount of lands, the title to which is permitted to be acquired by one person, only agricultural lands, and not to include lands entered or sought to be entered under mine: al land laws.

It can not be held that this legislative construction meant to exclude from the limitation mineral lands only for then the clause saying that the three hundred and twenty acres should "include only agricultural lands" must be treated as mere surplusage and void of meaning.

On the other hand, to adopt the rule of construction that "Every word, and clause of a statute shall be presumed to have been intended to have some force and effect" (2 Pick., 571), leaves no ambiguity.

The act last quoted makes two exceptions to the limitation of the act of August 30, 1890:

First, no more than the three hundred and twenty acres can be acquired of "only agricultural lands;" and

Second, if more than that limitation is sought to be entered as "mineral land," the excess (not to exceed one hundred and sixty acres) may be also suitable for agricultural purposes, but if its chief value is for the minerals thereon, then it would be subject to the mineral land laws and exempt from the limitation.

Sections 2330 and 2341 recognize the fact that the same land may be both agricultural and mineral.

In this case the eighty-acre cash entry can in no case be treated as

agricultural lands, and so is not included "in the maximum amount of lands" that may be acquired by one person.

If the entry of the eighty-acre tract be permitted to stand, Harrison does not thereby acquire title to more than three hundred and twenty acres of agricultural land.

Your office decision is overruled, and cash entry No. 2810 is held intact.

ACCOUNTS-SURVEY-EXPENSE OF EXAMINATION.

P. M. NARBOE.

Under the act of August 18, 1894, making an appropriation for public surveys, the expenses of a hearing, to determine the character of a survey alleged to be fraudulent or defective, may be paid from said appropriation, as well as the expense of such field work as may be necessary in connection with said investigation.

Secretary Smith to the Commissioner of the General Land Office, October (J. I. H.) 12, 1894. (F. W. C.) By departmental letter of May 16, 1894, in the matter of certain surveys made in California by P. M. Narboe, under his contract No. 364, dated August 25, 1884, you were instructed to

direct the surveyor general to notify Narboe to submit testimony in support of his survey at a time to be fixed by the surveyor general of California, within sixty days from the date of the notice, and to make his report to your office without delay. With your office letter of September 13, 1894, is forwarded a letter from the surveyor general in which he recommends that he be authorized to hold the hearing

upon the land, and to employ such assistants as may be necessary to run the lines, and that an advance of $250, to defray the expense of such a hearing and examination, be made to this (his) office from the appropriation for surveys of public lands.

In forwarding said letter you express approval of the proposition to hold the hearing as suggested, but are of the opinion that under the appropriation for surveys the money can be used only for field examination and can not be used for the other expenses of the hearing.

The act of August 18, 1894, making appropriation for "surveying the public lands" for the fiscal year ending June 30, 1895, provides as follows:

And of the sum hereby appropriated not exceeding forty-five thousand dollars may be expended for examination of public surveys in the several surveying districts in order to test the accuracy of the work in the field, and to prevent payment for fraudulent and imperfect surveys returned by deputy surveyors and for examinations of surveys heretofore made and reported to be defective or fraudulent.

It will be noticed that this appropriation is not only for examinations in the field for the purpose of testing the accuracy of the work performed, but

to prevent payment for fraudulent and imperfect surveys returned by deputy-surveyors and for examination of surveys heretofore made and reported to be defective or fraudulent.