Washington, February 25, 1880.

SIR: I have the honor to submit herewith, for the consideration of Congress, copy of letter addressed to me, on the 21st instant, by Maj. J. W. Powell, a member of the Public Land Commission appointed under the sundry civil appropriation act of Sd March last (20 Stat., 394), in which he suggests certain amendments to the preliminary report of said commission, submitted by me to Congress this day, thereby qualifying, in some respects, his approval thereof.

The Hon. THE SPEAKER

C. SCHURZ,

Secretary.

Of the House of Representatives.

DEPARTMENT OF THE INTERIOR,

PUBLIC LAND COMMISSION, Washington, D. C.. February 21, 1880.

SIR: I desire to qualify my approval of the report of the Public Land Commission, and accompanying draft of bill, as follows:

It is recommended that section 151 of chapter IX be amended by striking out the words "by the person conducting the same"

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"or to," and adding a new clause to the section. As thus amended it will read :

SECTION 151. The right to the use of water on any tract of irrigable land shall depend on bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes, subject to existing rights.

The right of way for the construction on the public lands of canals and other hydraulic works necessary for irrigation is hereby established; but whenever any person in the construction of such canals or hydraulic works injures or damages another settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage; and, in the absence of necessary legislation by Congress, the legislature of any State or Territory may enact laws and prescribe rules relating to the easements necessary for irrigation.

It is also recommended that section 193 of chapter XII be amemded by striking out the words "agricultural" "or other," and inserting after the word "mining" the conjunction "or." As thus amended the section will read :

SECTION 193. Whenever, by priority of possession, rights to the use of water for Tuining or manufacturing purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same, and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person in the construction of any ditch or canal injures or damages the possession of any settler on the public domain the party committing such injury or damage shall be liable to the party injured for such injury or damage.

These amendments are designed to prevent the severance of water property from land property, and to provide that the right to use the water for irrigation purposes shall inhere in the land and pass with the title to the land on condition of continuous use, and to prevent a state of affairs under which all of the agriculture of the vast area where irrigation is necessary would be subject and tributary to a few stock companies owning the water.

It is further recommended that a new section be added to chapter X, following immediately upon section 154, as follows:

SECTION -. In the lands patented under the provisions of this chapter all subterranean mining property, and rights for mining purposes, are hereby severed from the surface property and rights for pasturage purposes, and whenever the surface property and rights for pasturage purposes to any tract of land have passed from the gov ernment under the provisions of this act, subterranean property and rights for mining purposes therein may be acquired under the provisions of the twelfth chapter of this act, and in absence of necessary legislation by Congress the local legislature of any State or Territory may provide rules for discovering and working such mines involv ing easements, drainage, and other means necessary to their complete development. In every patent issued for pasturage land under the provisions of this chapter there shall be inserted the following clause:

Except and excluding from these presents all subterranean property rights in any mine of gold, silver, cinnabar, lead, tin, copper, coal, iron, or other valuable mineral deposit; and the property conveyed in this patent shall be servient to the easements necessary for discovering and working mines therein, and in the absence of legislation by Congress the local legislature of the State or Territory in which the abovedescribed land is situate may provide rules for exploring and prospecting thereon, and for the working of mines therein involving easements, drainage, and other means necessary to discovery and development.

In every patent for mineral land issued under the provisions of this section there shall be inserted the following clause:

Except and excluding from these presents all surface property rights; provided that there shall be dominant in the property conveyed in this patent the easements on the surface property necessary for discovering and working mines therein, and in the absence of legislation by Congress the local legislature of the State or Territory in which the above-described land is situate may provide rules for exploring and prospecting for mines thereon, and for working of mines therein, involving easements, drainage, and other means necessary to discovery and development.

About one-half of all the lands in the western portion of the United States bearing gold, silver, and other ores of like geological occurrence, are covered with forests, and hence are both timber and mineral lands. Provision has been made in the tentative bill for the sale of the timber, the fee of the land to remain in the government, and such lands are held free to exploration and acquirement of title as mineral lands. The other one-half of these mineral lands are also pasturage lands. It is believed that the enactment of the pasturage law as recommended by the commission, without the amendment above indicated, would result in passing a large amount of mineral lands into the hands of people en. gaged in pasturage industries, and thus the mining industry of the country would be greatly retarded. The pasturage homestead is necessarily very large, and as it is given to the settler he should not consider it a hardship if the mines contained therein are severed from his ownership. It is believed that at least ninety-nine one-hundredths of all the coal lands of the western portion of the United States are situate in lands belonging to the class designated in the tentative bill as pasturage lands. It has been recommended that the coal lands be sold at ten dollars per acre; but in the pasturage homestead act titles can be acquired to four sections of pasturage land at a nominal price, and such lands might and would be defined properly as coal lands; that is, they would contain beds of coal of commercial value. The pasturage homestead act, without the amendment proposed, would defeat the measure designed to secure the sale of the coal lands at ten dollars per acre. I would respectfully request that these suggestions for amendments be transmitted to Congress.

I am, with great respect, your obedient servant,

The Hon. the SECRETARY OF THE INTERIOR,

J. W. POWELL.

Washington, D. C.

AN ACT to provide for the survey and disposal of the public lands of the United States.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, viz:

CHAPTER I.

THE GENERAL LAND office.

SECTION 1. The Secretary of the Interior shall, in his discretion, exercise supervisory powers over the administration of all laws concerning the public lands, including mines, and over the survey and patenting of private land claims.

SEC. 2. There shall be in the Department of the Interior a Commissioner of the General Land Office, who shall be appointed by the President, by and with the advice and consent of the Senate, and shall be entitled to a salary of six thousand dollars per year.

SEC. 3. The Commissioner of the General Land Office shall perform or direct subject to the supervision of the Secretary of the Interior, all executive acts appertaining to the surveying and sale of the public lands of the United States, or in any wise respecting such public lands, and also such as relate to private claims of land, and the issuing of patents for all grants of land under the authority of the Government; and in such routine duties as may be assigned to his subordinates by the Commissioner their orders shall be considered as emanating from him, and shall have full force and effect as such.

SEC. 4. All returns relative to the public lands, and all official information or reports from officers in the public land service, shall be made to the Commissioner of the General Land Office, or to such officer as he may direct, and all the duties of said officers shall be performed under his authority and direction; and he shall have power to audit and settle all public accounts relative to the public lands; and upon the settlement of any such account, he shall certify the balance, and transmit the account, with the vouchers and certificate, to the First Comptroller of the Treasury, for his examination and decision thereon.

SEC. 5. The Commissioner of the General Land Office shall, when required by the President, or either House of Congress, make a plat of any land surveyed under the authority of the United States, and give such information respecting the public lands, and concerning the business of his office as shall be directed.

SEC. 6. The Commissioner of the General Land Office shall retain the charge of the seal heretofore adopted for the office, which may continue to be used, and of the records, books, papers and other property appertaining to the office.

SEC. 7. The Commissioner of the General Land Office is authorized to decide upon principles of equity and justice, as recognized in courts of equity, and in accordance with regulations to be settled by the Secretary of the Interior, the Attorney General, and the Commissioner conjointly, consistently with such principles, all cases of suspended entries of or locations upon public lands, which have arisen in the General Land Of fice since the twenty-sixth day of June, 1856, as well as all cases of a similar kind which may hereafter occur, embracing as well locations H. Ex. 46-]V

XLIX

with warrants or scrip as ordinary entries or sales, and including homestead entries and pre-emption locations, and cases where the law has been substantially complied with, and the error or informality arose from ig. norance, accident, or mistake, which is satisfactorily explained; and the said Commissioner shall adjudge upon which of such cases patents shall issue.

SEC. 8. Every such adjudication shall be approved by the Secretary of the Interior and the Attorney General acting as a board, and shall operate only to divest the United States of the title to lands embraced thereby, without prejudice to the rights of conflicting claimants.

SEC. 9. The Commissioner is directed to report to Congress, at the first session after any such adjudications have been made, a list of the same, under the classes prescribed by law, with a statement of the prin ciples upon which each case was determined.

SEC. 10. The Commissioner shall arrange his decisions into two classes; the first class to embrace all such cases of equity as may be finally confirmed by the board, and the second class to embrace all such cases as the board reject and decide to be invalid.

SEC. 11. For all lands covered by claims which are placed in the first class, patents shall issue to the claimants; and all lands embraced by claims placed in the second class, shall, ipso facto, revert to and become part of the public domain, to be thereafter subject to disposition as other lands of similar classification.

SEC. 12. Where patents have been already issued on entries or locations, which are confirmed by the officers who are constituted the Board of Adjudication, the Commissioner of the General Land Office, upon the canceling of the outstanding patent, is authorized to issue a new patent, on such confirmation, to the person who made the entry or location, his heirs or assigns.

SEC. 13. There shall be appointed by the President, by and with the advice and consent of the Senate, an Assistant Commissioner of the General Land Office, at a salary of three thousand dollars a year, who shall be charged with such duties in the execution of the public land laws as may be prescribed by the Commissioner of the General Land Office, or by law, and who shall act as Commissioner of the General Land Office in the absence of that officer, or during any vacancy in that office.

SEC. 14. There shall be in the General Land Office an officer called the Recorder of the General Land Office, who shall be appointed by the President, by and with the advice and consent of the Senate, and shall be entitled to a salary of twenty-four hundred dollars a year; and in the absence of said Recorder, or during any temporary vacancy in said office, the duties thereof shall be performed by a chief of division in the General Land Office, to be designated by the Commissioner thereof.

SEC. 15. All patents issuing from the General Land Office shall be issued in the name of the United States, and be signed by the President and countersigned by the Recorder of the General Land Office, and shall be recorded in that office in books to be kept for the purpose.

SEC. 16. The President is authorized to designate from time to time one or more clerks of the General Land Office, whose duty it shall be, under the direction of the President, to sign in his name and for him the patents for lands sold or granted under the authority of the United States.

SEC. 17. It shall be the duty of the Recorder of the General Land Office, in pursuance of instructions from the Commissioner, to certify and affix the seal of the office to all patents for public lands, or private