made June 17, 1889, for the E. of the NW. 4, Lots 1, 2, 5 and 6, Sec. 33, Tp. 17 N., R. 7 W., Kingfisher, Oklahoma Territory. Ferguson filed his contest against said entry December 23, 1889, alleging abandonment. On January 2, 1890, Spencer, the entryman, applied for a leave of absence until the 15th day of April, 1890, which was allowed by the local officers. On May 6, 1890, Allie Washburn filed his contest against Spencer's entry, alleging abandonment, also that the contest commenced by Ferguson is "fraudulent and collusive." On June 2, 1890, John M. Graham filed his affidavit of contest against said entry; he also alleged abandonment, and further alleged that the contests filed by Ferguson and Washburn were fraudulent, collusive and made for speculative purposes and to enable said Spencer to sell his relinquishment for the land involved. On December 20, 1890, Graham filed his amended affidavit of contest, alleging Spencer's abandonment for more than six months, and repeating his charges of collusion and speculation between the entryman and Ferguson. The hearing upon Ferguson's contest was had on July 21, 1890; the entryman made default, and the register and receiver decided that he had abandoned the land, and accordingly recommended that the entry be canceled. It does not appear that either Washburn or Graham was present at that hearing, or that either one had been notified. The record was transmitted to your office, not on appeal (as you have it), but in the regular way, when your office, by letter "H" of December 9, 1890, dismissed Ferguson's contest under Practice Rule 48, on the grounds that Spencer had been granted a leave of absence on the very day that the notice of contest had been served on him, and that the showing made by Spencer was sufficient. On January 5, 1891, Ferguson filed a motion for review of your office decision dismissing his contest. On April 29, 1891, Graham presented Spencer's relinquishment, and his entry was canceled; thereupon Graham made entry of the land, with the exception of said lots 5 and 6. Your office letter "H" of August 21, 1891, passed upon Ferguson's motion for review, holding that there were not sufficient facts before your office to warrant the action taken. It was further decided that Ferguson had sustained his contest, but inasmuch as Graham had entered the land, a hearing was ordered, with instructions to your office to allow Graham sixty days to show cause why Ferguson should not be allowed to enter the land by reason of the latter's contest against Spencer's entry, which was canceled on relinquishment pending Ferguson's contest. Graham applied for a hearing, which was duly had, all parties being either present or represented. The issues raised at this hearing were upon Graham's averment that Ferguson's and Washburn's contests were speculative and fraudulent. It will be noticed that Graham presented Spencer's relinquishment, and then entered the land. The evidence shows that Spencer made out his relinquishment, and deposited the same with J. C. Post, banker at Kingfisher, some time between January and August, 1890. He directed Mr. Post to turn over this relinquishment to Ferguson, on the latter's payment of $175 for the same. Ferguson also advised Post that he had purchased Spencer's relinquishment. This relinquishment bears date May, 1890, or nearly one year prior to the time it was presented by Graham. Between the time of its execution and filing in the local office the evidence shows that Ferguson endeavored to sell the land to various parties. To effect the sale it was necessary to clear the records of the contests of Graham and Washburn. Graham was repeatedly approached by persons purporting to represent Ferguson, and asked to withdraw his contest for a consideration. John D. Grantham, who corroborated Ferguson's affidavit, testified in his deposition that Ferguson said that his object and purpose in filing the affidavit of contest was "to keep somebody else off until he could sell it and divide up with Louis M. Spencer." It does not appear that Ferguson took Spencer's relinquishment from the bank, or that he ever paid the amount he agreed for the same; his failure to do so may probably be accounted for in his disappointment in getting the records cleared of the subsequent contests, for his desired purchaser. This left the relinquishment in the bank, and Graham, learning of the same, purchased it. Ferguson was given an opportunity, at his own expense, of refuting the testimony tending to show that his contest was speculative, but he declined to testify, on the ground that Graham should pay for all the testimony under Practice Rule 54. The hearing was the result of a contest arising upon Graham's averment that Ferguson's contest was speculative and not one wherein Graham was claiming a preference right, for his entry was then of record; hence, the local office and your office properly held that Practice Rule 55, and not Rule 54, applied. If he was able to do so, Ferguson, who is himself a lawyer and a practitioner before the local officers, should have been anxious to purge himself from the imputation of a fraudulent contest, even had the ruling been a doubtful one; his failure to do so, taken in connection with the undisputed testimony of his collusion with Spencer, the entryman, leads me to concur in your office finding that Graham's allegation in that respect was sustained. Your office directed a hearing for the purpose of according Graham an opportunity to overcome the presumption that Spencer's relinquishment was the result of Washburn's contest. In view of the fact that Washburn's contest was probably filed before the relinquishment was executed, and that his contest antedated Graham's, I think this the proper order. The decision appealed from is therefore affirmed. RAILROAD STATION GROUNDS-DECLARATION OF FORFEITURE. CHICAGO, MILWAUKEE AND ST. PAUL RY. Co. The failure to complete the road within the time prescribed in the act of March 2, 1889, worked a forfeiture of all the lands reserved to the railroad company by section 16 of said act for right of way and station purposes, dependent only upon the proclamation of the President declaring the fact of said forfeiture. Secretary Smith to the Commissioner of the General Land Office, December 10, 1894. I transmit herewith a proclamation signed by the President of the United States, declaring a forfeiture of certain lands in the State of South Dakota, selected by the Chicago, Milwaukee & St. Paul Railway Company, for station purposes, and directing their restoration to the public domain, for settlement under the homestead laws. You will take such steps as may be necessary to carry this proclamation into effect. The PRESIDENT, DEPARTMENT OF THE INTERIOR, SIR: I have the honor to present herein, for your consideration, the facts in the matter of certain agreements (four in number) made between the Chicago, Milwaukee and St. Paul Railway Company and the Sioux Indians, in Dakota, for the right of way and occupation for railway purposes of portions of the lands formerly held by them and acquired under the treaty concluded between the several tribes of the Sioux. Nation of Indians and the United States, April 28, 1868, and proclaimed February 24, 1869. These several agreements were made in November, 1880, and approved by the Secretary of the Interior (Mr. Schurz) on January 3, 1881, and are fully set forth in Senate Executive Document No. 20, 48th Congress, 1st Session. Three of them related to land west of the Missouri river, and the fourth to lands east of that river. In addition to a strip for right of way through their lands, the right was given to occupy two tracts, one on the east and the other on the west bank of the Missouri river, for freight and passenger depots, etc., for all of which due compensation was to be paid the Indians, as therein provided for. The tracts selected were one hundred and eighty-eight acres on the east bank of the river, just to the north of the present town of Chamberlain, and the other, six hundred and forty acres, on the west bank about three miles below. These selections were approved by this Department, and payment made, for right of way and station purposes, amounting to about $15,000. By the act of March 2, 1889 (25 Stat., 888), provision was made for securing the relinquishment of the Indian title to the portion of their reservation covered by the agreements before referred to, but by the 16th section of that act it was provided that said release shall not affect any agreement heretofore made with the Chicago, Milwaukee and St. Paul Railway Company for a right of way through said reservation, and for any lands acquired by said agreement to be used in connection therewith, except as thereinafter provided. Said section then goes on to grant to the company the rights attempted to be secured by said agreements, limiting the use of the property acquired to general railway use, and then provided: That said railway companies and each of them shall, within nine months after this act takes effect, definitely locate their respective lines of road, including all station grounds and terminals across and upon the lands of said reservation designated in said agreements, and shall also, within the said period of nine months, file with the Secretary of the Interior a map of such definite location, specifying clearly the line of road, the several station grounds and the amount of land required for railway purposes, as herein specified, of the said separate sections of land and said tracts of one hundred and eighty-eight acres and seventy-five acres, and the Secretary of the Interior, shall, within three months after the filing of such map, designate the particular portions of said sections and of said tracts of land which the said railway companies respectively may take and hold under the provisions of this act for railway purposes. And the said railway companies, and each of them, shall, within three years after this act takes effect, construct, complete, and put in operation their said lines of road; and in case the said lines of road are not definitely located and maps of location filed within the periods herein before provided, or in case the said lines of road are not constructed, completed, and put in operation within the time herein provided, then, and in either case, the lands granted for right of way, station grounds, or other railway purposes, as in this act provided, shall, without any further act or ceremony, be declared by proclamation of the President forfeited, and shall, without entry or further action on the part of the United States, revert to the United States and be subject to entry under the other provisions of this act; and whenever such forfeiture occurs the Secretary of the Interior shall ascertain the fact and give due notice thereof to the local land officers, and thereupon the lands so forfeited shall be open to homestead entry under the provisions of this act. This act took effect under the proclamation of the President of the United States on February 10, 1890, and the location of the road and tracts selected on the banks of the Missouri river were approved by the Secretary of the Interior (Mr. Noble) on January 24, 1891. Prior to the passage of the act of March 2, 1889 (supra), this road had been constructed to the Missouri river, ending at the town of Chamberlain, South Dakota, just to the south of the tract of one hundred and eighty-eight acres taken under the agreement with the Indians on the east bank of said river. It is plain that the act of March 2, 1889 (supra), contemplated a complete construction of the road across the river and westward through the former reservation, and such construction was a condition upon the grant made in ratification of the agreements made with the Indians. No further construction has been reported to this Department since the passage of the act of 1889, consequently there has been a forfeituredependent only on your declaration of the fact. It is clear that the failure to complete the roads within the time prescribed in the act of March 2, 1889, worked a forfeiture of all the lands reserved to the railroad companies by the 16th section of said act. I have prepared, and herewith transmit for your approval and signature, a declaration of forfeiture under the act of March 2, 1889 (supra), based on the views herein expressed. Very respectfully, HOKE SMITH, Secretary. A PROCLAMATION. Whereas: By the 16th section of the act of Congress approved March 2, 1889 (25 Stat., 888), the agreements entered into between the Chicago, Milwaukee and St. Paul Railway Company and the Sioux Indians, for the right of way and occupation of certain lands for station purposes in that portion of the Sioux Reservation, in the State of South Dakota, relinquished by said Indians, were ratified upon the condition that said railway company shall, within three years after the said act takes effect, construct, complete and put in operation its line of road as therein provided for, due location of which was to be made within nine months after said act took effect, and, in case of failure to so construct said road," the lands granted for right of way, station grounds, or other railway purposes, as in this act provided, shall, without any further act or ceremony, be declared by proclamation of the President forfeited, and shall, without entry or further action on the part of the United States, revert to the United States and be subject to entry under the other provisions of this act," and Whereas: Under previous proclamation said act took effect on February 10, 1890, and more than three years have elapsed and no construction has been reported of the said road beyond the town of Chamberlain, in the State of South Dakota, as evidenced by the report of the Secretary of the Interior, dated December 3, 1894. Now, therefore, I, Grover Cleveland, President of the United States, do declare that the said lands granted for right of way and station purposes, to wit: that tract of land known as lots 2, 3, and 4, and the SE. of the SW. of Sec. 10, and lots 1 and 2 in Sec. 15, Tp. 104 N., R. 71 W., containing one hundred and eighty-four [eight] acres, as shown by a plat approved January 24, 1891, being the tract selected by the Chicago, Milwaukee and St. Paul Railway Company under the 16th section of the act of March 2, 1889 (25 Stat., S88), also the six hundred and forty acres in said township 104 N., ranges 71 and 72 W., 5th P. M., in the State of South Dakota, plat of which was approved by the Secretary of the Interior January 4, 1889, and now on file in the General Land Office, are forfeited to the United States, and will be subject to entry under the homestead laws, as provided by said act of March 2, 1889, whenever the Secretary of the Interior shall give due notice to the local officers of this declaration of forfeiture. Given under my hand, at the city of Washington, this fifth day of December, A. D., one thousand, eight hundred and ninety-four. GROVER CLEVELAND, President of the United States. |