Acting Secretary Campbell to the Commissioner of the General Land (S. V. P.) Office, July 8, 1905. (E. F. B.)

Your reports of May 23, 1905, and June 16, 1905, as well as the reports of the Director of the Geological Survey of May 3, 1905, June 1, 1905, and June 3, 1905, relative to the survey and sale of certain lands in Idaho that have been reserved by the President under section 2380, Revised Statutes, as a townsite, have been considered by the Department.

The lands reserved are all of section 15, except the E. SE. 4, and lots 3 and 4, section 22, T. 10 S., R. 23 E., B. M., Hailey, Idaho, containing in the aggregate 632.70 acres. The order of reservation also improperly embraced lands in section 16, belonging to the State of Idaho, but the order was ineffective as to those lands, as the United States had no jurisdiction and control over them, and they should not be considered in making the survey of the townsite.

The lands being within the irrigable area and susceptible of reclamation from the irrigation works of the contemplated Minidoka project, had formerly been withdrawn from entry, except under the homestead law, for the purpose of being disposed of only in conformity with the provisions of the act of June 17, 1902 (32 Stat., 388), and were thus placed directly under the control of the Reclamation Service. Subsequently, upon the recommendation and advice of the Director of the Geological Survey that the lands in question were suitable for townsite purposes and would become a center of population, they were reserved by the President under the following section (2380) of the Revised Statutes:

The President is authorized to reserve from the public lands, whether surveyed or unsurveyed, town-sites on the shores of harbors, at the junction of rivers, important portages, or any natural or prospective centers of population.

They were thereupon taken from under the immediate jurisdiction and control of the Geological Survey and were restored to the control of the General Land Office, as the bureau provided by law for supervising the survey and sale of such reservations as public lands of the United States under the following provision (2381) of the Revised Statutes:

When, in the opinion of the President, the public interests require it, it shall be the duty of the Secretary of the Interior to cause any of such reservations, or part thereof, to be surveyed into urban or suburban lots of suitable size, and to fix by appraisement of disinterested persons their cash value, and to offer the same for sale at public outcry to the highest bidder, and thence afterward to be held subject to sale at private entry according to such regulations as the Secretary of the Interior may prescribe; but no lot shall be disposed of at public sale or private entry for less than the appraised value thereof; and all such sales shall be conducted by the register and receiver of the land office in the

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district in which the reservation may be situated, in accordance with the instructions of the Commissioner of the General Land Office.

It being desirable that the lands reserved should be opened for occupancy as early as practicable, it becomes the duty of this Department to have them surveyed and subdivided into suitable lots, blocks, streets, alleys and necessary reservations for public uses and to have the lots appraised at their cash value and offered for sale at public outcry to the highest bidder, and to provide by appropriate regulations for the disposal at private entry of the lands remaining unsold at the public offering.

You will therefore take immediate steps to have the exterior boundaries of the reservation surveyed without regard to the State lands adjoining, and to have the lands so segregated subdivided into streets, alleys, blocks and lots and to lay out such reservations for public parks as may be desirable for public use, due regard being had to the future necessities of the inhabitants of the townsite. You will have the lots appraised by disinterested persons at their cash value and have them offered for sale at public outcry to the highest bidder for cash, the sale to be conducted by the register and receiver in accordance with such instructions from your office as may be given. The Director of the Geological Survey submits with one of his reports a plat of a proposed subdivision of the townsite, which, as to the streets, alleys, blocks, lots and reservations for parks indicated thereon, appears to be free from objection, and no reason appears why the suggestion may not be accepted by your office and the survey be made accordingly. It is not intended by this suggestion to restrict your office in the exercise of its judgment, but you are free to make such recommendation as may seem advisable.

There is no authority under the act to make the other reservation indicated upon the plat. The dedication of portions of the reservation for public parks may be exercised as a necessary incident to the power to lay out streets and alleys for the public use, but the law evidently contemplates that the lots and blocks shall be sold to the highest bidder unless reserved for government purposes.

The plat indicates that certain lots are to be used for particular purposes. The suggestion merely indicated the reason for restricting the area of the lots thus designated, and not that such condition be imposed at the sale, as there is no authority to prescribe the purpose for which any lot must be used.

In having the townsite surveyed you may make use of such service as the Reclamation Service may be able to render, but it must be made under your direction and subject to your approval. The mere fact that the land reserved is within the irrigable area of an irrigation project and susceptible of reclamation, makes no difference in the

proceedings for the disposal of the lands. They must be disposed of as all other lands reserved for townsite purposes under section 2380.

After the approval of the survey, the lands will be offered for sale to the highest bidder for cash after the usual notice, and the land remaining unsold at the public offering will thereafter be subject to private cash entry under such regulations as may hereafter be prescribed. There is no authority to sell any such lands except for cash. The law requiring that they shall be appraised at their cash value, necessarily implies that they shall be sold for cash.

NORTHERN PACIFIC RAILWAY CO.

Motion for review of departmental decision of June 8, 1905, 33 L. D., 601, denied by Acting Secretary Campbell, July 12, 1905.

RIGHT OF WAY-ALASKAN LANDS-SEC. 6 ACT OF MAY 14, 1898. A. B. W. MINING COMPANY.

The provisions of section 6 of the act of May 14, 1898, conferring upon the Secretary of the Interior authority to sell to the owner or owners of a wagon road or tramway, not to exceed twenty acres of public land, for terminal facilities, at each end of the road, contemplates the sale of an absolute fee in the lands, and where the lands, at the date applied for, are included within a forest reserve, they are not subject to sale under said section, notwithstanding the wagon road or tramway in connection with which they are desired may have been constructed prior to the creation of 'the reserve. In view of the provisions of the act of February 1, 1905, transferring to the Secretary of Agriculture the execution of certain laws affecting public lands within the limits of forest reserves, and the construction placed upon that act by the Secretary of the Interior and concurred in by the Secretary of Agriculture, applications for permits for use of rights of way within forest reserves on account of wagon roads or tramways, under section 6 of the act of May 14, 1898, come within the jurisdiction and control of the Secretary of Agriculture.

Acting Secretary Campbell to the Commissioner of the General Land (S. V. P.) (F. W. C.)

Office, July 12, 1905.

The A. B. W. Mining Company has appealed from your office decision of May 3, 1904, refusing to submit, with favorable recommendation, its application for the issue of a permit under section 6 of the act of May 14, 1898 (30 Stat., 409, 411), on account of its constructed tramway, as shown upon its map accompanying its application, having a length of 1.59 miles, and rejecting its application to purchase

two certain tracts of land, as terminals to said tramway, covering 11.886 acres and 20 acres, respectively, for the reason that the lands affected by the several applications are within the limits of the withdrawal made by proclamation August 20, 1902, creating the Alexander Archipelago Forest Reserve in the Juneau land district, Alaska, said reserve having been created under the provisions of section 24 of the act of March 3, 1891 (26 Stat., 1095).

In its appeal the mining company claims to be the owner of certain mining properties on Prince of Wales Island, Alaska, about one mile from the shore of Hollis Bay and on an arm of Kassan Bay; that during the autumn of 1901 the company constructed a tramway from its mill and reduction works to the beach, which was prior to the creation of the forest reserve, and it is urged that the subsequent action creating such reserve should not affect its rights previously acquired under the act of 1898.

By section 7 of the act of 1898 it is provided:

That this act shall not apply to any lands within the limits of any military, park, Indian, or other reservation unless such right of way shall be provided for by act of Congress.

Section 6 of the act of 1898 provides that the Secretary of the Interior may issue a permit by instrument in writing authorizing the use of a right of way over the public domain in the district of Alaska for the construction of wagon roads and tramways. By the same section the Secretary is also authorized to sell to the owner or owners of any such wagon road or tramway not to exceed twenty acres of public land at each terminal, at the rate of $1.25 per acre, evidently designed for terminal facilities. The right given under a permit for use of right of way issued under this section for the construction of a wagon road or tramway, is separate and distinct from the right to purchase grounds for terminal facilities. The latter contemplates an absolute fee in the lands, and the fact that such lands are, at the date applied for, included within a forest reserve is a sufficient bar to the purchase. Your decision, in so far as it rejected the applications for terminal grounds, is, for that reason, affirmed, and in this connection it is noted that the lands applied for seem to be largely in excess of what would seem to be needed when the actual length of the road is considered.

With regard to the application for permit for the use of the right of way actually occupied by the constructed tramway, in view of the provisions of the act of February 1, 1905 (33 Stat., 628), transferring to the Secretary of the Department of Agriculture the execution of certain of the laws affecting public lands within the limits of forest reserves, the departmental letter of June 8, last, addressed to the Secretary of Agriculture, defining the jurisdictions of the two depart

ments over the granting of rights and privileges within such reserves, and of the letter from the Secretary of Agriculture, dated June 13, last, assenting, this Department is of opinion that the question as to the future occupation of the reserve by the tramway in question is a matter for consideration by the Secretary of Agriculture, and, for this reason, it is directed that the papers relating to the application in question be forwarded to the Secretary of Agriculture, with a copy of this decision, and that the applicant company be fully advised in the premises.

MILITARY BOUNTY LAND WARRANT-UNOFFERED LAND-EQUITABLE

ADJUDICATION.

ROY MCDONALD.

Where the only objection to confirmation of a military bounty land warrant location, made in good faith, is the purely technical one that through inadvertence of the land department the land covered thereby was never formally offered at public sale under the provisions of the act of July 4, 1876, as it should have been, of which fact the locator was ignorant, the location may be referred to the Board of Equitable Adjudication for confirmation under Rule 11.

Acting Secretary Campbell to the Commissioner of the General Land (S. V. P.) (J. R. W.)

Office, July 12, 1905.

Roy McDonald appealed from your decision of November 25, 1904, requiring him to show cause why his location of bounty land warrant 115,547 should not be canceled as to the SE. of the NW. 4, Sec. 6, T. 4 S., R. 22 W., La. M., New Orleans, Louisiana.

April 7, 1903, Roy McDonald located military bounty land warrant 115,547, one hundred and sixty acres, on the SW. of the NE. 4, the SE. of the NW. 4, and the N. of the SE. 4, Sec. 6, T. 4 S., R. 22 W. The warrant was issued under the act of March 3, 1855 (10 Stat., 701), to the widow of a soldier of the First Mississippi Volunteers, for service in the Mexican war, and was locatable only on lands subject to entry at the minimum or graduated price.

All the land located was by the act of June 21, 1866 (14 Stat., 66), withdrawn from disposal except under the homestead law, and upon repeal of that restriction by the act of July 4, 1876 (19 Stat., 73), it was provided:

That the repeal of said section shall not have the effect to impair the right. complete or inchoate, of any homestead settler, and no land occupied by such settler at the time that this act shall take effect shall be subject to entry, preemption, or sale: And provided, That the public lands affected by this act shall be offered at public sale as soon as practicable, from time to time, and according to the provisions of existing law, and shall not be subject to private entry until they are so offered.