SULPHUR PRODUCTION-ACT OF APRIL 17, 1926, AS AMENDED BY ACT OF JULY 16, 1932

REGISTERS,

REGULATIONS

[Circular No. 1287]

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, D.C., August 16, 1932.

UNITED STATES LAND OFFICES,

LAS CRUCES AND SANTA FE, NEW MEXICO:

The act of Congress, approved April 17, 1926 (44 Stat. 301), as amended by the act approved July 16, 1932 (Public, No. 291), 72d Congress, entitled: "An Act To promote the production of sulphur upon the public domain within the States of Louisiana and New Mexico," reads as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Interior is hereby authorized and directed, under such rules and regulations as he may prescribe, to grant to any qualified applicant a prospecting permit which shall give the exclusive right to prospect for sulphur in lands belonging to the United States located in the States of Louisiana and New Mexico for a period of not exceeding two years: Provided, That the area to be included in such a permit shall be not exceeding six hundred and forty acres of land in reasonably compact form.

Sec. 2. Upon showing to the satisfaction of the Secretary of the Interior that valuable deposits of sulphur have been discovered by the permittee within the area covered by his permit, and that the land is chiefly valuable therefor, the permittee shall be entitled to a lease for any or all of the land embraced in the prospecting permit, at a royalty of 5 per centum of the quantity or gross value of the output of sulphur at the point of shipment to market, such lease to be taken in compact form by legal subdivisions of the public-land surveys; or if the land be not surveyed, by survey executed at the cost of the permittee in accordance with regulations prescribed by the Secretary of the Interior: Provided, That where any person having been granted an oil and gas permit makes a discovery of sulphur in lands covered by said permit, he shall have the same privilege of leasing not to exceed six hundred and forty acres of said land under the same terms and conditions as are given a sulphur permittee under the provisions of this section.

Sec. 3. Lands known to contain valuable deposits of sulphur and not covered by permits or leases shall be held subject to lease by the Secretary of the Interior through advertisement, competitive bidding, or such other methods as he may by general regulations adopt and in such areas as he shall fix, not exceeding six hundred and forty acres; all leases to be conditioned upon the payment by the lessee of such royalty as may be fixed in the lease and the

payment in advance of a rental of 50 cents per acre per annum, the rental paid for any one year to be credited against the royalties accruing for that year.

Sec. 4. Prospecting permits or leases may be issued in the discretion of the Secretary of the Interior under the provisions of this act for deposits of sulphur in public lands also containing coal or other minerals on condition that such other deposits be reserved to the United States for disposal under applicable laws.

Sec. 5. The general provisions of section 1 and sections 26 to 38, inclusive, of the act of February 25, 1920, entitled "An Act to promote the mining of coal, phosphate, oil, oil shale, gas, and sodium on the public domain," are made applicable to permits and leases under this act, the first and thirty-seventh sections thereof being amended to include deposits of sulphur, and section 27 being amended so as to prohibit any person, association, or corporation from taking or holding more than three sulphur permits or leases in any one State during the life of such permits or leases.

Sec. 6. That the provisions of this act shall apply only to the States of Louisiana and New Mexico."

Said act authorizes the Secretary of the Interior to grant prospecting permits and leases for sulphur lands belonging to the United States in those States.

The similarity of this act to the general mineral leasing act of February 25, 1920 (41 Stat. 437), is such that the provisions of Circular No. 672, approved March 11, 1920, relating to oil and gas permits and leases are generally applicable, and to the extent that they are not inconsistent with the said act of April 17, 1926, as amended, they will govern the procedure in applications for permits and leases under the latter act.

A sulphur permit may, however, be allowed for a maximum of 640 acres only.

The royalty in sulphur leases granted consequent upon a permit shall be 5 per cent of the quantity or gross value of the output of sulphur at the point of shipment to market.

An oil permittee who shall make a discovery of sulphur in lands covered by his permit shall have the same privilege of obtaining a sulphur lease as is given to a sulphur permittee.

All sulphur leases for lands known to contain valuable deposits of sulphur and not covered by permits or leases shall be conditioned upon the payment by the lessee of such royalty as may be fixed in the lease and upon the payment in advance of a rental of 50 cents per acre per annum, the rental paid for any one year to be credited against the royalties accruing for that year.

No person, association, or corporation shall take or hold more than three sulphur permits or leases in any one State during the life of such permits or leases.

Applications for permits should be filed in the proper district land office for lands in the State of New Mexico, and in the General Land Office at Washington, D. C., for lands in the State of Louisiana. This circular supersedes Circular No. 1104, issued December 22, 1926, addressed to the Register at Baton Rouge, Louisiana. C. C. MOORE, Commissioner.

Approved:

Jos. M. DIXON,

Acting Secretary.

HIRAM M. HAMILTON

Decided August 31, 1932

NATIONAL FOREST LANDS-EXCHANGE OF LANDS-TITLE.

In an exchange of lands in national forests under the terms of the act of March 20, 1922 (42 Stat. 465), as amended by the act of February 28, 1925 (43 Stat. 1090), a relinquishment to the United States under the provisions of the act of June 4, 1897 (30 Stat. 36), with no application for other lands in lieu thereof, leaves the transaction incomplete and does not pass clear and complete title to the base lands to the United States, equitable rights therein remaining in the profferer. NATIONAL FOREST

TITLE.

LANDS-EXCHANGE-TITLE-EXTENSION

OF ABSTRACT OF

Before the United States will consummate an exchange of lands in national forests, it must be fully satisfied as to the title to the land relinquished, and accordingly will require that the abstract of title submitted be extended, where necessary, to show good title at date of acceptance.

DEPARTMENT'S INSTRUCTIONS OVERRULED IN PART.

The Department's instructions of February 13, 1925 (51 L.D. 51), insofar as in conflict with this decision, are overruled.

EDWARDS, Assistant Secretary:

This is an appeal by Hiram M. Hamilton from the decision of the Commissioner of the General Land Office dated May 3, 1932, in the matter of his application, under the act of March 20, 1922 (42 Stat. 465), as amended by the act of February 28, 1925 (43 Stat. 1090), to exchange the SESE1⁄44 and SW4SE4 Sec. 27, T. 2 N., R. 2 W., S.B.M., within the San Bernardino National Forest, for the NW4NW1⁄4 and NE1⁄4NW4 Sec. 28, T. 7 S., R. 22 E., M.D.M., within the Sierra National Forest, California.

The record shows that by two separate deeds, executed January 2, 1902, Hamilton and wife relinquished to the United States the said SESE and SW4SE4 Sec. 27, T. 2 N., R. 2 W., S.B.M., within the San Bernardino National Forest, with a view to the selection of lieu lands under the provisions of the act of June 4, 1897 (30 Stat. 36). Said deeds were duly recorded January 4 and 6, 1902,

respectively, but so far as the records of the Land Department show Hamilton did not apply for other lands in lieu of those relinquished. It appears, however, that in connection with the anticipated exchange under the act of June 4, 1897, supra, Hamilton procured and retained possession of a duly authenticated abstract of his title to the said relinquished lands. This abstract, which is part of the record now before the Department, shows that said lands were patented to the Southern Pacific Railroad Company October 7, 1891, and that said company, by deed dated December 27, 1901, conveyed them to Hamilton. The abstract, extended and certified to November 30, 1906, shows that the land was at the time free from all other claim of title, tax liens, or other incumbrances.

In 1931 Hamilton started negotiations with the regional forester to exchange the lands in question for other lands, under the provisions of the act of March 20, 1922, supra, presenting an affidavit stating that he was the lawful owner of said lands. The proposed exchange was found to be in the public interest, and the Secretary of Agriculture recommended, under date of November 30, 1931, that it be consummated. Hamilton filed formal application for such exchange February 12, 1932, accompanied by the abstract of title previously mentioned.

In his letter of November 30, 1931, recommending the approval of the exchange, the Secretary of Agriculture stated that the land offered by Hamilton was subject to the following reservations in favor of the Southern Pacific Railroad Company:

"A strip of land 200 feet wide lying equally on each side of each main track, side track spur, switch and branch line of said railroad or of any railroad corporation, grantee of said railroad, as the same are now constructed or located upon, across or adjacent to any of the offered lands and all parts and parcels of said lands which are now used for the operation and maintenance of the railroad of the Southern Pacific Railroad Company, or of any railroad corporation, the grantee of the Southern Pacific Railroad Company, or for the track, yards, depot grounds, buildings, or other structures thereof.

The right to use any water rising upon any of said lands which has heretofore been appropriated by, and is now being used for the operation of the railroad of the Southern Pacific Railroad Company, and the right (to the extent the same may heretofore have been exercised by said vendor) to conduct the same as well as water rising upon other lands, across any of the land offered in pipes or aqueducts, for the purpose aforesaid, together with all necessary rights-of-way therefor.

The fact that the offered land is subject to the above described reservations has been taken into consideration in estimating the value of the land in question."

With respect to the reservation above referred to it may be stated that the accompanying abstract fails to show that Hamilton's grantor retained any right or interest in the property in question, and it is

apparent that the Secretary of Agriculture's information in the matter was obtained from some other source.

When the application for exchange was reached for examination the General Land Office held, in substance, that the deeds placed of record by Hamilton in 1902 were without effect and passed no title to the United States. Hamilton was called upon to execute and have recorded a new deed conveying to the United States the said SE1⁄4 SE and SW4SE4 Sec. 27, T. 2 N., R. 2 W., S.B.M., with an excepting clause sufficient to protect the rights of the railroad company under the reservation previously mentioned; also to have his abstract of title brought down to a date overlapping the recordation of such new deed, and recertified to show the relinquished lands free from tax liens, pending suits, judgment liens, or other incumbrance.

Appellant contends that the Commissioner improperly imposed such requirements upon him. He says that when he purchased the lands in question from the Southern Pacific Railroad Company he obtained an absolute title without reservations, and that he is not justified in making and should not be called upon to make a new deed containing reservations for the benefit of his grantor, who is without interest in the property. He asserts that the United States has good title to the lands by virtue of his previously recorded deeds, and that the accompanying abstract of title is complete without further extension under departmental ruling of February 13, 1925 (51 L.D. 51).

In the view of the Department the execution and recordation of a new deed by Hamilton may be dispensed with. It is immaterial whether the land in question is affected by reservations for the benefit of the Southern Pacific Railroad Company. The land to which Hamilton got title, all of which he purported to convey to the United States, was and is, if the abstract is accurate, free of any easement or servitude. If the railroad company's conveyance to Hamilton contained a reservation, such reservation is sufficient to protect its rights, and it is not important whether the reservation is mentioned or continued in Hamilton's conveyance to the United States. Moreover, the Department of Agriculture appears to be fully advised respecting the status of the lands and the extent to which they are affected by the reservation aforesaid, and offers no objection to the exchange on that ground. In the circumstances, the sufficiency of Hamilton's recorded relinquishment will not be questioned.

In the opinion of the Department, however, the Commissioner's objection to the abstract presented was well taken. Manifestly, in its present form, such abstract is not sufficient to assure a clear title in the United States. Experience has shown that many of the