"SEC. 4. That at the time of filing the declaration hereinbefore required the party shall also file a map of said land, which shall exhibit a plan of showing the mode of contemplated irrigation, and which plan shall be sufficient to thoroughly irrigate and reclaim said land, and prepare it to raise ordinary agricultural crops, and shall also show the source of the water to be used for irrigation and reclamation. Persons entering or proposing to enter separate sections, or fractional parts of sections, of desert lands may associate together in the construction of canals and ditches for irrigating and reclaiming all of said tracts, and may file a joint map or maps showing their plan of internal improvements. "SEC. 5. That no land shall be patented to any person under this act unless he or his assignors shall have expended in the necessary irrigation, reclamation and cultivation thereof, by means of main canals and branch ditches, and in permanent improvements upon the land, and in the purchase of water rights for the irrigation of the same, at least $3 per acre of whole tract reclaimed and patented in the manner following: Within one year after making entry for such tract of desert land as aforesaid, the party so entering shall expend not less than $1 per acre for the purposes aforesaid; and he shall in like manner expend the sum of $1 per acre during the second and also during the third year thereafter, until the full sum of $3 per acre is so expended. Said party shall file during each year with the register proof, by the affidavits of two or more credible witnesses, that the full sum of $1 per acre has been expended in such necessary improvements during such year, and the manner in which expended, and at the expiration of the third year a map or plan showing the character and extent of such improvements. If any party who has made such application shall fail during any year to file the testimony aforesaid, the lands shall revert to the United States and the 25 cents advanced payment shall be forfeited to the United States, and the entry shall be canceled. Nothing herein contained shall prevent a claimant from making his final entry and receiving his patent at an earlier date than herein before prescribed, provided that he then makes the required proof of reclamation to the aggregate extent of $3 per acre: Provided, That proof be further required of the cultivation of one-eighth of the land. "SEC. 6. That this act shall not affect any valid rights heretofore accrued under said act of March 3, 1877, but all bona fide claims heretofore lawfully initiated may be perfected, upon due compliance with the provisions of said act, in the same manner, upon the same terms and conditions, and subject to the same limitations, forfeitures, and contests as if this act had not been passed; or said claims, at the option of the claimant, may be perfected and patented under the provisions of said act, as amended by this act, so far as applicable; and all acts and parts of acts in conflict with this act are hereby repealed. "SEC. 7. That at any time after filing the declaration, and within the period of four years thereafter, upon making satisfactory proof to the register and the receiver of the reclamation and cultivation of said land to the extent and cost and in the manner aforesaid, and substantially in accordance with the plans herein provided for, and that he or she is a citizen of the United States, and upon payment to the receiver of the additional sum of $1 per acre for said land, a patent shall issue therefor to the applicant or his assigns; but no person or association of persons shall hold by assignment or otherwise, prior to the issue of patent, more than 320 acres of such arid or desert lands, but this section shall not apply to entries made or initiated prior to the approval of this act: Provided, however, That additional proofs may be required at any time within the period prescribed by law, and that the claims or entries made under this or any preceeding act shall be subject to contest, as provided by the law relating to homestead cases, for illegal inception, abandonment, or failure to comply with the requirements of law, and upon satisfactory proof thereof shall be canceled, and the lands, and moneys paid therefor, shall be forfeited to the United States. "SEC. 8. That the provisions of the act to which this is an amendment, and the amendments thereto shall apply to and be in force in the State of Colorado, as well as the States named in the original act; and no person shall be entitled to make entry of desert land except he be a resident citizen of the State or Territory in which the land sought to be entered is located." Rulings Under the Desert Land Law. A desert land entry may be made by a married woman(1). Residence on land covered by a desert land entry does not strengthen claim3). Lands that one year with another for a series of years will not, without irrigation, make a fair return to the ordinarily skilful and industrious husbandman for the seed and toil expended in endeavoring to secure a crop, are desert lands within the law. Crop means such an agricultural production as would be a fair reward for the expense of producing it(5). To be desert land it must be shown that irrigation is essential to produce any crop upon the land in question("). Lands that have been reclaimed and produce crops are not subject to entry under the desert land law('). Tracts entered under this law are desert until their non-desert character is established by preponderance of testimony(). Land bordering on a stream of water, and that produces a natural growth of grass in paying quantities, is not subject to desert entry. The fact that the entry embraces land not subject thereto does not necessarily make the entire entry fraudulent("). A tract bordering on a stream, and containing living springs, and that includes land that produces a natural growth of grass in paying quantities, and trees of native growth, is not subject to desert entry(1). Land that without irrigation will produce grass in paying quantities is not subject to desert entry("). The non-irrigable character of a portion of the land included within a desert entry will not defeat the right to patent thereunder, if the land susceptible of irrigation is reclaimed in good faith, and the remainder of no value to the Government(12) Desert land entries are not assignable(13). [See act of March 3, 1891.] A school section or part thereof cannot be embraced in a desert entry. (1)Instructions, Land Owner, V. 9, p. 222. Charles Bowling, Copp's Land Laws, p. 914. (")Bliss v. Schamel, Land Owner, V. 10, p. 96. (8)Schuler v. Creighton, Land Owner, V. 11 p. 59. (9)Sims v. Phalen, Land Owner, V. 17, p. 143. Sections 16 and 36 while unsurveyed may be embraced in a deser. entrv(1). Entries must be compact in form, not more than one mile and a quarter in any one direction, where 640 acres are entered(2). A desert land entry of tracts within the limits of a land grant railroad is subject to the general requirement of $2.50 per acre in the matter of price(3). Persons making desert land entries must acquire a clear right to the use of sufficient water to permanently irrigate the whole of the land(*). A person who makes a desert land entry before he has secured a water right does so at his own risk. And in case where such water right has not been obtained and in event of claimant voluntarily relinquishing his claim, repayment of purchase money will not be granted. Failure to investigate the methods necessary to reclaim the land embraced in a desert land entry is no ground for repayment of the purchase money (5). The contract to sell half the land embraced in the desert entry in question made just prior to making final proof is held, under the facts, not to vitiate the entry or give cause for cancellation thereof("). The relinquishment of subdivisions not irrigated is required('). In determining compactness, the relation of the tracts embraced in the entry to other lands should be considered(). Where 50 cents an acre is properly paid on original entry, but the land is reduced in price prior to final entry, credit of the excess of 25 cents is to be given on final payment("). Non-irrigation of rocky and hilly portions of land does not defeat entry(1). Partial reclamation of land while held under prior entry will not defeat a desert land entry("). Raising crops not necessary for a compliance with law(12). On failure to submit desert final proof within the statutory period, the claimant should be allowed ninety days within which to show cause why his entry should not be canceled (13). Equitable consideration may be given final proof submitted after the expiration of the statutory period if the delay is satisfactorily explained(13). The law does not authorize an extension of the time within which to make proof upon a desert entry, but proof submitted after the expiration of the statutory period may be equitably considered if a sufficient explanation is furnished. In such a case the explanation should be clear and explicit and show that the entryman did not fail through want of diligence on his own part, but was prevented from effecting reclamation by obstacles that could not be foreseen or overcome(1). To reclaim desert land, not what can be done, but what has been done, must be shown. The bringing of water on and through the land is not enough. Lateral ditches with water conducted to the smallest legal subdivisions must be proved(15). Final proof must show that the entire tract is irrigated in the cropping season. The crop may be hay, vegetables or cereals. Proof that all the land has been (1)S. B. Reeves, Land Owner, V. 6, p. 76. (9)Joseph Adler, Copp's Land Laws, p. 1235. cultivated is not necessary, but it all must be in a suitable condition for cultivation. Mere conveying of water upon desert land is not a fulfillment of the law, unless in sufficient quantity to prepare such land for cultivation(°). The best proof of the right to use water must be produced, either by record evidence or a contract for water to be delivered by an incorporated company or prior appropriation(2). The final certificate and patent in a desert land entry can issue only after the public surveys have been extended(3). Patent will issue only in the name of the original party("). A party whose desert land entry has been canceled for non-compliance with law cannot claim the land as a pre-emptor or homesteader by virtue of settlement and residence thereon prior to such cancellation (5). Repayment will not be allowed where a desert land entry has been canceled for non-compliance(®). When repayment in a desert land entry cannot be made("). Where a desert land entryman, after the expiration of three vears from entry, applies for repayment of purchase money on the grad of inability to secure water, such application will be refused($). Desert land entries are included in the act of May 14, 1880, and as pre-emptions may be held subject to the Rules of Practice in the matter of hearings and contests(). [See act of March 3, 1891, p. 110.] XII. Oklahoma Territory. AN act making appropriations for the current and contingent expenses of the Indian Department, and for fulfilling treaty stipulations with various Indian tribes, for the year ending June thirtieth, eighteen hundred and ninety, and for other purposes. SECTION 12. That the sum of one million nine hundred and twelve thousand nine hundred and forty-two dollars and two cents be, and the same hereby is, appropriated, out of any money in the Treasury not otherwise appropriated, to pay in full the Seminole Nation of Indians for all the right, title, interest, and claim which said nation of Indians may have in and to certain lands ceded by article three of the treaty between the United States and said nation of Indians, which was concluded June fourteenth, eighteen hundred and sixty-six, and proclaimed August sixteenth, eighteen hundred and sixty-six, and which land was then estimated to contain two million one hundred and sixty-nine thousand and eighty acres, but which is now, after survey, ascertained to contain two million thirty-seven thousand four hundred and fourteen and sixty-two hundredths acres, said sum of money to be paid as follows: one million five hundred thousand dollars to remain in the Treasury of the United States to the credit of said nation of Indians and to bear interest at the rate of five per centum per annum from July first, eighteen hundred and eighty-nine, said interest to be paid semi-annually to the treasurer of said nation, and the sum of four hundred and twelve thousand nine hundred and forty-two dollars and (Wallace v. Boyce, Land Owner, V. 9, p. 120. (5) Barrott v. Linney, Land Owner, V. 10, p. twenty cents, to be paid to such person ()J. R. Boyce, Land Owner, V. 10, p. 25. 172. or persons as shall be duly authorized by the laws of said nation to receive the same, at such time and in such sums as shall be directed and required by the legislative authority of said nation, to be immediately available; this appropriation to become operative upon the execution by the duly appointed delegates of said nation, especially empowered so to do, of a release, and conveyance to the United States of all the right, title, interest, and claim of said nation of Indians in and to said lands, in manner and form satisfactory to the President of the United States, and said release and conveyance, when fully executed and delivered, shall operate to extinguish all claims of every kind and character of said Seminole Nation of Indians in and to the tract of country to which said release and conveyance shall apply, but such release conveyance, and extinguishment shall not inure to the benefit of or cause to vest in any railroad company any right, title, or interest whatever in or to any of said lands, and all laws and parts of laws, so far as they conflict with the foregoing, are hereby repealed, and all grants or pretended grants of said lands or any interest or right therein now existing in or on behalf of any railroad company, except rights of way and depot grounds, are hereby declared to be forever forfeited for breach of condition. SECTION 13. That the lands acquired by the United States under said agreement shall be a part of the public domain, to be disposed of only as herein provided, and sections sixteen and thirty-six of each township, whether surveyed or unsurveyed, are hereby reserved for the use and benefit of the public schools, to be established within the limits of said lands under such conditions and regulations as may be hereafter enacted by Congress. That the lands acquired by conveyance from the Seminole Indians hereunder, except the sixteenth and thirty-six sections, shall be disposed of to actual settlers under the homestead laws only, except as herein otherwise provided (except that section two thousand three hundred and one of the Revised Statutes shall not apply): And provided further, That any person who having attempted to, but for any cause failed to secure a title in fee to a homestead under existing law, or who made entry under what is known as the commuted provision of the homestead law, shall be qualified to make a homestead entry upon said lands: And provided further, That the rights of honorably discharged Union soldiers and sailors in the late civil war as defined and described in sections twenty-three hundred and four and twenty-three hundred and five of the Revised Statutes shall not be abridged; And provided further, That each entry shall be in square form as nearly as practicable and no person be permitted to enter more than one-quarter section thereof; but until said lands are opened for settlement by proclamation of the President, no person shall be permitted to enter upon and occupy the same, and no person violating this provision shall ever be permitted to enter any of said lands or acquire any right thereto. The Secretary of the Interior may, after said proclamation and not before, permit entry of said lands for townsites, under sections twenty-three hundred and eighty-seven and twenty-three hundred and eighty-eight of the Revised Statutes, but no such entry shall embrace more than one-half section of land. That all the foregoing provisions with reference to lands to be acquired from the Seminole Indians including the provisions pertaining to forfeiture shall apply to and regulate the disposal of the lands acquired from the Muscogee or Creek Indians by articles of cession and agreement made and concluded at the city of Washington on the nineteenth day of January in the year of our Lord eighteen hundred and eighty-nine. |