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The following communication will explain the course to be pursued when the 16th or 36th Section is returned as mineral land, yet considered as agricultural by persons desiring to purchase the land from the State as part of the School Land grant:
DEPARTMENT OF THE INTERIOR-GENERAL LAND OFFICE,
WASHINGTON, D. C., March 26, 1881.
J. W. Shanklin, Esq., State Surveyor-General, Sacramento, California:
Sir: I am in receipt of your communication of the 7th instant, stating that since the decision of the Supreme Court of the United States (Ivanhoe Mining Company v. Keystone Consolidated Mining Company), that mineral Sections 16 and 36 were not granted to the State of California by the Act of 1853, your office is “unable to determine what lands the State can sell and convey a satisfactory title for," and requesting the opinion of this office as to the effect of the said decision in the following cases :
First--- Where township, plats as returned by the Surveyor-General show Sections 16 and 36 to be ordinary agricultural lands.
The decision of the Supreme Court referred to excludes from the School grant to California by the Act of 1853 such of the Sections 16 and 36 as upon identification by survey are found to be mineral.
In the case of the State of California v. Poley and Thomas (Sickel's Mining Decisions, p. 426), the Hon. Secretary of the Interior held that where township plats as approved by the SurveyorGeneral and filed in the local Land Office, describe the lands embraced in such sections as agricultural, and no known mines in fact exist within their limits at the date of the approval of the survey, the State acquires title to such tracts, indefeasible by subsequent discoveries of minerals thereon. The approval of the Surveyor-General in such cases will be treated as conclusive, and locations of mining claims upon such sections after the filing of the township plat in the office of the Register and Receiver, will not be recognized by this office.
Second-When the Secretary of the Interior revoked the order withdrawing from disposal under agricultural laws certain townships within the “inineral belt" which were not designated by the plats as mineral, did the right of the State attach to the school sections upon such revocation ?
If no known mines are found to exist upon such tracts at the date of survey, the title to such sections will vest in the State in the same manner as those referred to in answer to the first proposition.
Third-Where lands are returned as mineral, but parties desire to purchase from the State, alleging that such lands are valuable only for agricultural or grazing purposes, can the State or its grantee acquire title upon making proof of those facts ?
Your attention is directed to the inclosed circular (*) from this office, of date September 23, 1880, prescribing the manner of proceeding where application is made to enter or select lands (returned as mineral) under grants to States, railroads, and wagon road companies, and Acts of Congress other than the preëmption or homestead laws. Opportunity is given by said circular to enter or select such lands upon establishing their non-mineral character in the manner therein provided.
But this does not apply where lands mineral at date of survey have subsequently become exhausted, and are no longer valuable for mining purposes. The grant of 1853, as construed by the Supreme Court, was a grant in præsenti, acquiring precision upon identification of the lands granted by survey. If the lands were in fact mineral at the time when the survey determined the locus of the grant, they were excepted from such grant, and the title of the State never attached to them.
Such lands not answering the description of the grant when perfected, they cannot subsequently be brought within its terms.
J. A. WILLIAMSON,
Commissioner. (* Circular.) DEPARTMENT OF THE INTERIOR-GENERAL LAND OFFICE,
WASHINGTON, D. C., September 23, 1880. Registers and Receivers, United States District Land Offices :
GENTLEMEN : Hereafter, in case of application being made in your office to enter or select, as agricultural land, under any Act of Congress other than the preëmption or homestead Acts, lands returned as mineral by the Surveyor-General, you will require the applicant, at date of final proof, location, or selection, to publish for thirty days a notice describing the land applied for, and giving time and place when such proof will be submitted or selection tendered. You will also post in your office a copy of the notice for the same period. Proof of publication will
consist of the affidavit of the publisher of the newspaper in which the notice was published, and you will furnish your own certificate as to posting in your office.
The revocation of the withdrawals of lands as mineral by circular of April 27, 1880, was made not only because said withdrawals had, in many instances, worked great hardship to settlers, but because it is required by law that homestead and preëmption claimants shall publish notices of their intention to make final proof on their entries, and this was thought to afford sufficient protection to all parties; but in case of entries under other laws there is no such notice required. This procedure will apply to cases of application to nter under the town site, desert land, and timber culture laws; applications to select lands under grants to States, railroad, and wagon road companies; and the location of the various classes of scrip upon lands which have been returned by the Surveyor-General as mineral in character.
Where, after such publication of notice has been regularly made, no affidavits alleging the mineral character of the land have been filed with you, you will allow the entry, selection, or location, upon the filing of a proper non-mineral affidavit. If such mineral affidavits shall have been filed, you will proceed with a hearing, as directed by the circular of April 27, 1880.
PROPOSED CHANGES IN RELATION TO THE SALE OF STATE SCHOOL
I would respectfully call attention to some of the sections of the Political Code, relating to the disposition of State lands which, in my opinion, need amendment or modification.
Section 501 should be amended, in the clause relating to the profert fee, to read, "for certifying a contested case to the Superior Court (when either of the parties deinands the reference), three dollars." As the law now stands, the officer cannot refer the contest to Court without paying the fee out of his own pocket, unless some of the parties tenders the fee and demands the reference, although the officer may be satisfied that the apparent contest is in reality a sham to keep third parties from interfering with the land.
Section 3398. The Supreme Court says that the State does not have to locate the 16th or 36th sections, and, as a matter of fact, locations of them never have been made at the United States Land Offices. I would therefore recommend that it be changed to read as follows: "The Surveyor-General is the general agent of the State for the location in the United States Land Offices, of the unsold portion of the five hundred thousand acres of land granted to the State for school purposes, and for lands in lieu of the sixteenth or thirtysixth sections granted for the use of public schools.” This change will make the section harmonize with Section 3406.
Section 3410. In view of the recent change made by the Department of the Interior as to time of making payment of the fees for which this section provides, I recommend that for indemnity selections, the applicants be required to pay this fee, viz.: at the rate of two dollars for each 160 acres or fraction thereof, when the application is filed. Under the present rule of the Department, the United States Register cannot receive the State application without payment of this fee, and it is imposible to draw it from our State Treasury in advance of final approval of the application. Hence it is to the interest of the applicant to pay the fee himself. Besides, no good reason can be shown why the State should pay it for him, as the law now does.
Section 3414. In this section the word "Superior" should be substituted for “District,” to make it correspond with Section 3515, and at the close of the section should be added (and forward to the Clerk of the Court a certified copy to be filed in his office). This would prevent parties demanding the reference to Court from receiving the order and keeping it in their pocket till the time for commencing suit has expired, thus gaining an undue advantage through the indefiniteness of the law.
Section 3417 should be amended, in order to make it effective in clearing the record, as follows: “Unless the party contestant-the second or subsequent applicant-commences his action within sixty days after the order of reference is made, he shall be deemed to have waived and surrendered his right to purchase; and the Surveyor-General or Register shall proceed, as directed in Section 3416, the same as if final judgment had been filed,” upon receiving satisfactory evidence that no suit was commenced.
Section 3533 should be amended so as to include the unsold portion of the grants to the State for seminary and public building purposes, as well as of the one hundred and fifty thousand acres, because the present laws do not give the Regents of the University control over the unsold portions of these grants, except in such cases as come within the purview of the last clause of Section 3536, Political Code; and the Surveyor-General has no authority given him by Section 3398 to make selections in satisfaction of these grants.
In my opinion, Section 3571 should be amended so as to include repayment when entries have been set aside by the Courts for defects or informality in the applications, and for school land warrants which cannot be located or satisfied after the grant under which they were issued has been exhausted-the fault being with the State officers, by exceeding their authority in locating more land than the State was entitled to after the State sold these warrants.
By the amendment made April 15, 1880, in Section 3494, nearly every County Treasurer in the State, as well as the persons who purchased lands prior thereto from the State, considered that the amendment reduced the rate of interest on all outstanding certificates from ten to seven per cent. Although that may have been the intention (and no good reason can be shown why the State should continue to collect ten per cent. interest on such sales, and that, too, without rebate on taxes for the debt due the State), yet the Attorney-General and myself hold that a strict construction of the statute only reduces the interest on future purchases—that it gives no relief on past sales. I think this matter is worthy of consideration by the Legislature.
Section 3498. Section 6 of the Act of April 28, 1880, was evidently intended to be an amendment of Section 3498, but neither said section nor the subject matter thereof, is referred to in the title of said Act. It is therefore void under the Constitution. Nor can the Surveyor-General enforce its provisions so as to make approvals within six months after filing applications, for want of evidence as to the character of the land. The Constitution prohibits the sale of any land suitable for cultivation, except to an actual settler. If the law were so amended as to require the applicant to make proof of the character of the land within the six months after filing, or forfeit his application, the Surveyor-General could enforce the law, or thus clear the record for other applications.
The same law of April 28, 1880, provides, by Section 3495, for one kind of affidavit to be made in case an application is made for part of a 16th or 36th Section, and by Section 3500 a different affidavit if the application is for land in lieu of a 16th or 36th Section. The effect of this difference is, that the same party can obtain 640 acres, although apparently the intention was to allow the purchase of only 320 acres of State land by any one applicant.
Another peculiarity of this law is, that it only requires that the applicant shall be an actual settler on the land at the date of application. It does not require proof of continuous residence to the date of sale. This omission obliges the Surveyor-General to make rules not in the law, in order to guard against violating Section 3 of Article 17 of the Constitution. But in cases where the land is not suitable for cultivation the law does not require the settler to continue on the land one day after filing his application. The consequence is that the settlement clause as to lands unsuitable for cultivation is violated constantly, and the law as it stands is worthless in accomplishing what was intended, unless it was intended as a sham on its face.
Section 3502 should be amended so as to make outstanding School Land Warrants receivable in payment for any School land, without being restricted, as now, to the 500,000 acre grant. This would be accomplished by striking out the words “part of the 500,000 acres of.” The reason for this is, that the outstanding warrants, for which the State received two dollars per acre, are worthless, because they cannot now be located, as the grant is exhausted.
Section 3516. If this section were amended so as to require the recording of all transfers, or a report of the name and residence of the assignee to the Register, the State would be able to reach the parties referred to in Sections 3552 and 3555, whereas, it is now almost impossible to collect the costs in foreclosure suits, and the School Fund is reduced in each case from forty to sixty dollars in consequence of not knowing the name and residence of the purchaser.
Section 3533. This section should be amended so as to give the Regents of the University authority to select any portion remaining unsold of the Seminary or Public Buildings grants; because Section 3398 has taken this power from the Surveyor-General without transferring it elsewhere, except where land selected under the grants reverts by foreclosure suits, as provided in the last clause of Section 3536.
Section 3548 should be amended by adding after the word "publication" the words “to the County Treasurer, who shall immediately notify the District Attorney.” Serious complications arise because of payments of interest being made to the County Treasurer after advertisement of the delinquent list, but without payment of the accrued costs, and without notice to the District Attorney. Said officer, not being aware of the partial payment, or else disregarding
it, proceeds with the suit and annuls the entry, when the report of the County Treasurer sent to this office shows that the purchaser is not in arrears.
Section 3555 should be amended so as to limit the amount of costs, as was formerly done by Section 7 of the Act of April 9, 1861. the matter now stands, the bills presented run up from $10 to $128 for each case-all of which comes out of the School Fund; and the Board of Examiners have no control over the amount of costs, according to the decision of the Supreme Court. The service being rendered, the bill must be paid, as the law now stands. The law of 1861 referred to, fixed the cost of each annulment at $32, and certainly it is worth no more now. But there is another view to take of this matter. As all services, except for printing, are rendered by county officers, who are all salaried, there is no reason why any charge should be made against the State by them or for them. It is true that reasonable charges for the benefit of the county should be collected from the delinquents; but in case of failure to collect from them I do not think the charges should be taken out of the School Fund, as they are now, and especially when there is no law limiting the amount.
Section 3571. There is great difficulty experienced by the Surveyor-General under this section, because there is no provision in any State law, saying who shall determine whether land sold is not the property of the State, or how it shall be determined that land is not ihe property of the State. The absurdity of this section will be apparent when I state that the law contemplates the sale of land, before it becomes the property of the State, except of the 16th and 36th Sections in place and of swamp land before it becomes the property of the State. A strict construction of this section would allow any man who has bought land of the State and paid interest thereon for years, but which land has not yet become the property of the State, to demand his money, and the Register would be obliged to issue the certificate of repayment. But it is evident that this was not the intention of the law-makers, but that repayment should be made when it has been proved that the land is not or cannot become the property of the State. The law is silent, however, as to how or by whom the condition of the land is to be determined. If left to the Surveyor-General to determine, or if said officer was authorized to accept the decision of the General Land Office as to the validity or invalidity of the State title to the land, then the difficulty in executing this section would be removed. Modification of this section becomes necessary in view of the Act of Congress of March 1, 1877, relating to defective indemnity State selections.
In my last report I referred to the necessity of greater interest being taken in timber culture in California. I would recommend to our farmers to emulate the people of some other States, where one day in the year has been set apart for tree planting, called arbor day. Were this plan adopted in California, and faithfully kept up for ten years, what a difference the country would then present in point of attractive beauty and grateful shade.