SOLDIER'S ADDITIONAL ENTRY-PRIVATE CLAIM-TOWNSHIP PLAT.

LUDWIG MAY.

A prima facie valid soldier's additional homestead entry, while of record, segregates the land covered thereby, and precludes the allowance of a pre-emption filing therefor.

The Higley survey locates substantially the claimed limits of the Moraga grant, and lands excluded from said survey are public, and subject to entry, so far as any conflict with said grant is concerned.

An entry made while the township plat is on file is not annulled by the subsequent withdrawal of said plat, but suspended during such withdrawal.

Secretary Noble to the Commissioner of the General Land Office, September 22, 1891.

This is an appeal by Ludwig May from the decision of your office of August 1, 1888, sustaining the action of the local officers in refusing to allow him to file pre-emption declaratory statement for the SW. of Sec. 10, T. 2 S., R. 2 W., Mount Diablo Meridian, San Francisco district, California.

The said declaratory statement was dated June 20, 1888, and alleged settlement on the 13th day of that month, and was rejected by the local officers, "because of the appropriation of the tract," by the soldiers' additional homestead entries of J. N. Browning and James M. Haines, both made July 8, 1878, and upon which final certificates had been issued January 17, 1882, more than six years before the date of May's alleged settlement and his offer of said declaratory statement.

These entries of Browning and Haines were entries of record, valid on their faces, and until they were canceled, segregated the land from the public domain. (Graham v. Hastings and Dakota Railway Company, 1 L. D., 362). The application of May was therefore properly rejected (Ernest Trelut, 3 L. D., 228).

It is claimed by May in his appeal, that these entries are void, because, 1st, "the land involved was within the granted and confirmed exterior named and designated boundaries of the private Mexican grant, Laguna de los Pales Colorados (Moraga), from August 10, 1841, to August 10, 1878," and, 2d, "the plat of T. 2 S., R. 2 W., was withdrawn October 24, 1878, and not" re-instated "until February 24, 1882." Embodied in the appeal is an application, that a hearing be ordered for the purpose of taking testimony as to the truth of these allegations.

The first proposition raises the same question, that was settled adversely to the appellant's contention by this Department in the case of Joel Docking, 3 L. D., 204. By the sixth section of the act of March 3, 1853 (10 Stat., 246), "lands in the State of California

claimed under any foreign grant or title," were reserved from entry

as public lands of the United States. In said case of Joel Docking it is held that:

The sixth section of the act of March 3, 1853, as construed by the decision of the supreme court of the United States in the case of Newhall v. Sanger (92 U. S., 761), reserved until the grant in this case (Laguna de los Palos Colorados) was finally located, only such land as was claimed ... Holding, as I do, that the Higley survey locates substantially the exterior boundaries of the rancho Laguna de los Palos Colorados, as claimed, and it appearing that the tract in question is excepted from said survey and was public land on the 8th day of August, 1878, when it was entered with certain soldiers' additionals, I affirm your decision rejecting the filing of Docking. (See also, Ernest Trelut, supra).

The land in the present case is located in T. 2 S., R. 2 W., no part of which falls within the Higley survey. It was, therefore, under the decision of this Department, in so far as its status was affected by the Laguna de los Palos Colorados grant, public land and subject to the entries of Browning and Haines, at the date when made, July 8, 1878. (The land, it is admitted, is not within the final, Boardman, survey of the claim, approved by this Department August 10, 1878.) As to the withdrawal of the plat of survey, it is to be observed, that the entries of Browning and Haines were made, July 8, 1878, about three months and a half prior to said withdrawal. The withdrawal of the plat of survey in this case did not have the effect of annulling or rendering void the entries made before such withdrawal. The plat having been reinstated or restored, February 24, 1882, the withdrawal operated at most a suspension, during its continuance, of proceedings on such entries. While the issuance of final certificates to Browning and Haines on their entries, January 17, 1882, during the period of suspension, was irregular, yet this irregularity did not render the entries void, and was cured by the subsequent restoration of the survey. It is not, therefore, matter which May, six years after, on application to pre-empt the land, can set up as ground for allowance of such application.

There is no necessity or reason for a hearing to determine any matter of fact involved in the said two propositions of the appellant.

It is further alleged in the appeal, substantially, that the entries are illegal and fraudulent and in violation of section 2306 of the Revised Statutes, but there is no specification as to what the fraud or illegality consists of. If there be fraud or illegality in the entries, the appellant may institute on the ground thereof a contest in conformity with the rules and regulations of this Department.

The decision of your office is affirmed.

SCRIP LOCATION-TIDE LANDS.

JAMES KASSON.

On the admission of a State to the Union it acquires, by virtue of its inherent sovereignty, absolute title to all tide lands on its borders, to the exclusion of any rights under pending unadjusted scrip locations for such lands.

Acting Secretary Chandler to the Commissioner of the General Land Office, September 21, 1891.

I have considered the appeal by James Kasson from your office decision of June 20, 1890, rejecting his application to locate with Valentine scrip unsurveyed lands, which if surveyed would be the NW. † of the NW. of Sec. 34, T. 21 N., R. 3 E., Seattle land district, Washington, for the reason that the tide ebbs and flows over the land.

On the admission of a state to the Union it acquires by virtue of its inherent sovereignty absolute title to all tide lands on its borders, to the exclusion of any rights under pending unadjusted scrip locations for such lands. Frank Burns, 10 L. D., 365.

Your decision is therefore affirmed.

OSAGE LANDS-SECOND ENTRY.

JOHN A. ELLIOTT.

Second entries of Osage land to which at the time there were no adverse claims, are confirmed by section 23, act of March 3, 1891, where compliance with the law in the matters of residence and improvements is duly shown.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, September 21, 1891.

John A. Elliott has appealed from your decision of July 2, 1890, holding for cancellation his application to make entry for lot 1 and the S of the NE of Sec. 2., T. 24. S., R. 6 E., Topeka land office, Kansas. The grounds of said decision is that the entryman

Testified in his final proof that he had entered the SE of Sec. 26, T. 33 S., R. 6 E., in June, 1875, which is Osage trust and diminished reserve lands in Kansas. Having made one entry upon Osage lands to the maximum extent of one hundred and sixty acres, he is debarred from making another.

The question as to whether or not your decision was correct, under the law as it existed at the date when it was rendered, need not now be discussed. But since the date of said decision, Congress has passed an act "To repeal timber culture laws, and for other purposes," approved March 3, 1891 (26 Stat. 1095), the 23d section of which provides:

That in all cases where second entries of land on the Osage Indian trust and diminished reserve lands in Kansas, to which at the time there were no adverse claims, have been made, and the law complied with as to residence and improvement, said entries be, and the same are hereby, confirmed.

In view of the act above cited, if upon examination you shall find that at the date of the entry of the tract in question, there was no adverse claim, and that the final proof shows compliance with the law as to residence and cultivation, patent will issue to the entryman for said tract.

Your decision is accordingly reversed.

TIMBER CULTURE CONTEST-DEVOID OF TIMBER.

LAVELL v. MORK.

The timber culture law restricts entries to sections "devoid of timber," and the restriction does not vary in proportion to the amount of land entered in such section.

Secretary Noble to the Commissioner of the General Land Office, Septem ber 21, 1891.

Hugh Lavell has applied for a review of departmental decision of June 8, 1891, dismissing his contest against the timber-culture entry of Rasmus L. Mork for the SW. of the SE. and the SE. of the SW. of Sec. 25, T. 103, R. 26, Marshall land district, Minnesota.

Said decision affirmed your office decision of November 21, 1889, dismissing the contest on the ground that the evidence shows that there are less than two acres of timber on the section, from two to eight feet high, and from half an inch to three inches in diameter, none of which could be used for farm purposes, and but a small portion for fuel. One of contestant's witnesses, who had known the land for years, said, "It would hardly do to call it timber, as it was too bushy and small, and not fit for use as timber trees are."

The applicant for review alleges that said decision was in error,

In not considering the fact that the entry attacked is for but eighty acres, and in not deciding that a quantity of timber of natural growth on such a tract, or near it in the section, would prevent an entry of eighty acres, while it might not render illegal one of one hundred and sixty acres.

There is no validity in this objection. Whether the entry be for one hundred and sixty acres, or for eighty, or forty, the law requires that the section (a portion of which is thus entered) shall be "devoid of tim ber;" and the meaning of these words-"devoid" and "timber"does not vary because a larger or lesser proportion of the section is so entered.

The motion is denied.

RULES AND REGULATIONS ADOPTED BY THE COMMISSIONER OF THE GENERAL LAND OFFICE, WITH THE APPROVAL OF THE SECRETARY OF THE INTERIOR, RELATIVE TO THE PRESENTATION AND ADJUSTMENT OF CLAIMS UNDER THE SWAMP-LAND LAWS.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., September 19, 1891.

The numerous lists of swamp-land selections heretofore presented to this office, as claims for lands in place and for cash and land indemnity, under the acts of March 2, 1849, September 28, 1850, and March 12, 1860, relating to swamp-lands in place, and the acts of March 2, 1855, and March 3, 1857. relating to cash and land indemnity in lieu of swamplands sold and located with warrants and scrip, and the continued presentation of numerous selection lists in which additional claims for large quantities of land situated in the same townships or counties as were the previous selections, and the necessity for putting a term to the work of examining such selected lands in the field by special agents and of repeatedy adjustling claims in this office, have suggested the following rules and regulations for the closing and adjustment of all claims under the swamp-land laws:

1. Preference in the order of consideration will be given to the adjustment of conflicts between homestead, pre-emption, and cash entries and warrant locations and the swamp-land claims of the States over other claims arising under the same law.

2. Claims for swamp lands in place will be taken up for consideration in preference to cash or other indemnity claims.

3. Cash-indemnity claims will be adjusted in the third order, i. e., after cases of conflict and claims for lands in place.

4. Land-indemnity claims will not be adjusted when there are no public lands with which to satisfy such claims, in the States in which the warrants or the scrip were located.

5. The surveyors-general when constructing and approving segregation maps and surveys, or approving selection lists of swamp and overflowed lands must, in their certificates, find and recite, affirmatively, facts showing that the principal conditions required by the swampland act to establish the character of the lands, as swamp and overflowed, existed at the date of the passage of the granting act. All evidence taken by surveyors-general to establish the character of the land must be transmitted with the maps or lists approved. This office will not approve maps, or accept lists in which it does not affirmatively appear, in the surveyor-general's certificate, that the lands reported as swamp and overflowed were in reality of that character at the date of the grant.

6. Before final action is taken on the claim of a State for swamp lands in place or cash or land indemnity, a certificate should be re