I am now in receipt of your letter of November 11, 1891, stating that owing. .. to the express terms of the appropriation acts since October 2, 1888, which provide that the surveys shall be confined to lands adapted to agriculture and lines of reservations, and the fact, as shown by the field notes of the examination made by the special agent, that the lands are valuable for timber, no action has been taken in the matter of authorizing the resurveys, in view of the lack of appropriation. It is also stated therein that- applications for the resurvey of a number of suspended townships situate north and east of the Humboldt Meridian, California, wherein the lands are admitted to be valuable chiefly for timber and not adapted to agriculture, have been pending in this office for several months, and no decisive action taken thereon owing to the lack of appropriation as stated. In conclusion you state that Being of the opinion that under existing law the resurvey of township 11 north, range 1 east, H. M. California, cannot now be authorized for stated reasons, further instructions relative to directions contained in departmental letter of October 28, 1891, are requested. In answer to your communication I have to state that the appropriation act of March 3, 1891, (26 Stat., 908-971) seems to have provided means for use of your office to have surveys made of lands heavily timbered and mountainous, and also a certain sum of money was expressly provided to be expended for the examination of public surveys in the several surveying districts in order to test the accuracy of work in the field, and to prevent payment for fraudulent and imperfect surveys returned by deputy surveyors, and for examinations of surveys heretofore made and reported to be defective or fraudulent. That section of the appropriation act providing for surveying the public lands is as follows: For surveys and resurveys of public lands, four hundred thousand dollars, at rates not exceeding nine dollars per linear mile for standard and meander lines, seven dollars for township, and five dollars for section lines: Provided, That in expending this appropriation preference shall be given in favor of surveying townships occupied, in whole or in part, by actual settlers and of lands granted to the States by the act approved February twenty-second, eighteen hundred and eighty-nine, and the acts approved July third and July tenth, eighteen hundred and ninety, and other surveys shall be confined to lands adapted to agriculture and lines of reservations, except that the Commissioner of the General Land Office may allow, for the survey of lands heavily timbered, mountainous, or covered with dense undergrowth, rates not exceeding thirteen dollars per linear mile for standard and meauder lines, eleven dollars for township, and seven dollars for section lines, and if in cases of exceptional difficulties in the surveys, the work can not be contracted for at these rates, compensation for surveys and resurveys may be made by the said Commissioner with the approval of the Secretary of the Interior, at rates not exceeding eighteen dollars per linear mile for standard and meander lines, fifteen dollars for township, and twelve dollars for section lines: Provided further, That in the States of Washington and Oregon there may be allowed, with the approval of the Secretary of the Interior, for the survey of lands heavily timbered, mountainous, or covered with dense undergrowth, rates not exceeding twenty-five dollars per linear mile for standard and meander lines, twenty-three dollars for township, and twenty dol lars for section lines; and said rates, in contracts hereafter made, shall apply to the unexpended balances assigned to said States of the appropriation for the current fiscal year. And of the sum hereby appropriated, not exceeding forty thousand dollars may be expended for the examination of public surveys in the several surveying districts in order to test the accuracy of work in the field, and to prevent payment for fraudulent and imperfect surveys returned by deputy surveyors and for examinations of surveys heretofore made and reported to be defective or fraudulent; and inspecting mineral deposits, coal fields, and timber districts, and for making such other surveys or examinations as may be required for identification of lands for purposes of evidence in any suit or proceeding in behalf of the United States, and out of the sum herein appropriated for surveying the public lands the Commissioner of the General Land Office, with the approval of the Secretary of the Interior, may assign a sum sufficient to complete the survey of the Public Land Strip-otherwise known as No Man's Land-and the boundary line between said Public Land Strip and Texas, and between Texas and New Mexico, established under act of June fifth, eighteen hundred and fifty-eight, is hereby confirmed. If in your judgment sufficient evidence is at hand upon which you can decide that the survey of township eleven, now suspended, is incorrect, and that the field work is inaccurate, you will proceed without delay to have a resurvey thereof made if the appropriation therefor has not been exhausted. But if sufficient data is not at hand you will, as directed by departmental letter of October 28, 1891, proceed to investigate the charges made against the correctness of said survey, with a view to determine whether it should be removed from suspension and approved, or a resurvey ordered. The instructions given in reference to township eleven are also appli cable to all other townships, the surveys of which are under suspension in your office. EVIDENCE-FINAL PROOF-PRE-EMPTION. FOLTZ v. SOLIDAY. Final proof can not be considered as part of the testimony in a case arising under a protest against the acceptance of said proof. In the absence of due compliance with the requirements of the pre-emption law, the The appeal of Frederick A. Soliday from your decision of June 7, 1890, in the case of John Foltz v. Frederick A. Soliday, involving the validity of the latter's pre-emption claim for the SW. 4, Sec. 14, T. 11 S., R. 20 W., WaKeeney land district, Kansas, has been considered. The record in this case shows that Soliday filed a pre-emption declaratory statement for the above land July 23, 1885, alleging settlement on the 20th day of that month, and on March 2, 1886, John Foltz made homestead entry covering the same tract. September 25, 1886, the pre-emptor, Soliday, made proof before the local office and at the same time appeared John Foltz, the homesteader and entered protest against the allowance of said proof, and as both parties were present they proceeded at once to a trial of the case. Under date of April 16, 1887, the district officers decided in favor of the protestant, and the pre-emption proof was therefore rejected. Soliday appealed and under date of June 7, 1890, you affirmed the judgment below, whereupon Soliday again appealed. It appears from the report of the register in transmitting this case to your office, that by some means the pre-emption proof of Soliday and the protest of Foltz have been lost and could not be found. In passing upon the appeal of Soliday you decided, that as all parties were present, sworn and examined and cross-examined, touching the matters in dispute, at the time of the hearing, that the case should be decided on its merits. In appealing from your decision the appellant assigns the following errors: 1st, To consider and adjudicate appellant's claim to said land without considering his final proof testimony and other evidence submitted with said proof in support of his claim. 2nd, That appellant should not suffer on account of the mistakes or carelessness of the local officers in losing his final proof. 3rd, To hold said pre-emption declaratory statement for cancellation in the absence of positive and conclusive evidence of bad faith, and non-compliance with law during the lifetime of said filing. The final proof made by the appellant, alleged to have been lost, was in the nature of "ex parte" affidavits, and in my opinion could not be considered as a part of the testimony in the contest, therefore the fact that it is now missing from the record does not affect the result in this case; furthermore the testimony submitted was taken at the time said proof was presen ed when all the parties in interest with their witnesses were present, and sworn, examined and cross-examined in relation to the question at issue, and the local officers with a full knowledge of the character of said proof decided against the pre-emptor upon the testimony submitted in the contest. This view of the matter disposes of the first, and second assignments of error, and leaves for consideration the question of settlement and cultivation. The record shows that Soliday, at the time he made filing for the land in question and up to the date of contest, was employed by Pruyne and Johnson, who owned a large sheep ranch near the said tract; that he made some few repairs in the house, part dugout and part stone, that was on the land when he made his filing; that he occupied it while herding sheep in that vicinity the firm furnishing his provisions; that he had a few articles of furniture therein and after the flock of sheep were removed to other pasturage, he returned to his claim occasionally, three or four times a month, and slept in the house at night. It appears that this constituted about all the acts of settlement performed by him prior to the entry of Foltz for the same laud, but subse quently he put a window in the house, plowed some ten acres of old land and sowed some rye and cane seed besides breaking about one and a half acres, at the same time he continued his visits to the land but spent more of his time on the claim than he had theretofore. The good faith of Foltz is shown from the fact that he went on the land April 23, 1886, only for a few days after his entry was made, built himself a comfortable frame house, broke some twelve acres of land, planted the same in corn and has made actual and continued residence thereon ever since. From the fact that Soliday made a filing for the land while he was in the employ of Pruyne and Johnson, using the land for grazing sheep belonging to said firm, and also failing to establish a permanent residence thereon or make any valuable improvements until after the land had been entered by Foltz, and in view of all the facts and circumstances as developed by the evidence, I am satisfied that Foltz has proven his better right to the land in controversy. Your decision is therefore affirmed. RAILROAD WITHDRAWAL-DESERT ENTRY-HOMESTEAD-TOWNSITE. BOND'S HEIRS ET AL. v. DEMING TOWNSITE. An order of the Land Department withdrawing lands from "pre-emption or homestead entry or sale" for the benefit of the Texas Pacific grant effectually precludes appropriation of such lands under the desert land law, though entries thereunder are not specified in the excepting clause of the grant, nor in the order of withdrawal. The withdrawal thus made reserved the land covered thereby from disposal, even though it was not finally disposed of as contemplated in the grant, but restored to the public domain by a subsequent act of Congress. An entry can not be confirmed under the act or June 22, 1874, if it has not been relieved from conflict with the railroad grant in the manner prescribed by said act. A desert land entry is not within the confirmatory provisions of section 3, act of April 21, 1876. A pre-emption claim can not be legally maintained by one who is using the land for the purposes of trade only. Land occupied for the purposes of trade and business is not subject to soldiers' additional homestead entry. An application under section 21, act of March 3, 1871, to purchase land for station purposes, unacted upon at the time of the forfeiture of the grant made by said act, can not be allowed. Public land settled upon and occupied as a townsite should be entered under the townsite laws for the proper protection of all interests concerned. Secretary Noble to the Commissioner of the General Land Office, December 8, 1891. The S. of Sec. 27, T. 23 S., R. 9 W., Las Cruces, New Mexico, is within the limits of the grant to the Texas Pacific Railroad Company, made by act of Congress approved March 3, 1871 (16 Stat., 573). The map of general route provided for in section twelve of said act was filed in September, 1871, and on December 4, 1871, the withdrawal provided for by the act took effect. The township plat of survey was filed in the local office October 12, 1881. On March 22, 1881, William Bond filed a desert land declaratory statement for a tract of unsurveyed land, which upon adjustment to the lines of the government survey, was found to embrace the S. of Sec. 27, T. 23 S., R. 9 W., the tract in dispute. By act of Congress approved February 28, 1885, the grant to the Texas Pacific Railroad Company was declared forfeited and the lands withdrawn were restored to entry. Upon said restoration H. H. Kidder filed a pre-emption declaratory statement for the E. of SW. and W. of SE. of said section 27, alleging settlement December 22, 1882, and the following soldiers' additional homestead entries were made, No. 885 (F. C., 825), Carrel Dobbins for SW. 1 of SE. ; No. 886 (F. C., 326) Andrew Knudson for S. 1 of SW. † and NW. of SW. 4. No. 857 (F. C., 327) Oscar Jons for NE. of SE., all in said section 27. of SW. 1, of SE. † and SE. The Grant County Townsite Company filed an application for fortyeight and sixty-three hundredths acres of said land, as an amendment to lands previously applied for. In view of these conflicting claims, your office, on December 10, 1885, ordered a hearing in the case. After the hearing, at which all parties appeared and submitted evidence, the local officers rendered a decision on April 27, 1887, rejecting the claims of Bond, Kidder, and the Grant County Townsite Company, and in favor of the additional homestead claimants. Appeals were taken by the other parties in interest. After said appeals had been filed, the probate judge of Grant county upon the peti tion of the settlers who are occupying the land for town and business purposes, applied on May 28, 1890, to enter all the land in question as the townsite of Deming in trust for the several use and benefit of the occupants thereof according to their respective interests. Your office, by decision of December 8, 1890, rejected the claims of Bond, Kidder, and the additional homestead claimants, and held that the applications of the probate judge of Grant county should be allowed. Appeals have been taken by the heirs of William Bond, deceased, Kidder, and the additional homestead claimants. The first claim to be considered is that of the heirs of William Bond, deceased. Section twelve of the act of March 3, 1871, making a grant to the Texas Pacific Railroad Company, provided that upon filing a map of general route to the road, the Secretary of the Interior, should cause the lands within forty miles on each side of said route within the Territory "to be withdrawn from pre-emption, private entry, and sale." |