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ordinary Government price for like lands, and thereupon patents shall issue therefor to the said bona fide purchaser, his heirs or assigns: Provided, That all lands shall be excepted from the provisions of this section which at the date of such sales were in the bona fide occupation of adverse claimants under the preemption or homestead laws of the United States, and whose claims and occupation have not since been voluntarily abandoned, as to which excepted lands the said preemption and homestead claimants shall be permitted to perfect their proofs and entries and receive patents therefor: Provided further, That this section shall not apply to lands settled upon subsequent to the 1st day of December, 1882, by persons claiming to enter the same under the settlement laws of the United States, as to which lands the parties claiming the same as aforesaid shall be entitled to prove up and enter as in other like cases. * *
SEC. 7. That no more lands shall be certified or conveyed to any State or to any corporation or individual, for the benefit of either of the companies herein mentioned, where it shall appear to the Secretary of the Interior that such transfers may create an excess over the quantity of lands to which such State, corporation or individual would be rightfully entitled.
A. RAILROAD GRANT-ADJUSTMENT.
B. MINERAL CHARACTER OF LAND SUBSEQUENT DISCOVERY OF MINERALS.
C. APPLICATION TO PURCHASE-SHOWING, p. 1147.
D. PURCHASER FROM RAILROAD COMPANY-TITLE TO MINERALS, p. 1147.
A. RAILROAD GRANT-ADJUSTMENT.
1. APPLICATION OF ACT-PATENT FOR MINERAL LANDS.
This statute applies to a patent erroneously issued by Government officers for lands which were valuable for mineral but purchased as agricultural lands.
United States v. Central Pac. R. Co., 84 Fed. 218, p. 221.
Where lands within the limits of a railroad grant are known to be mineral when the patent is granted by mistake or oversight, then the United States has an interest in such lands which will warrant the institution of proceedings to set aside a patent.
Bullock v. Central Pac. R. Co., 11 L. D. 590, p. 592.
McLaughlin v. United States, 107 U. S. 526.
Western Pac. R. Co. v. United States, 108 U. S. 510.
Winona, etc., R. Co., In re, 9 L. D. 649.
Central Pac. R. Co. v. Valentine, 11 L. D. 238.
This act was intended to cover contracts other than those evidenced by deed, as it applies exclusively to lands sold or contracted away by railroad companies before they had themselves obtained title.
Austin v. Luey, 21 L. D. 507, p. 511.
B. MINERAL CHARACTER OF LAND-SUBSEQUENT DISCOVERY OF
The known character of the land at the date of the purchase from the company is the determining factor in a controversy involving the character of the land applied for under this act, and in order to except lands from purchase for the reason that they
contained minerals, it must appear that the lands were of known mineral character at the date of the sale, by the land-grant company, and were such that the purchaser should have known at the time of his purchase were excepted from the grant to the railroad company.
Clogston v. Palmer, 32 L. D. 77, p. 82.
Lands otherwise coming within the provisions of this section and not known to be mineral in character at the time of their purchase from the railroad company, and which are subsequently found to be mineral, are not for that reason excepted from the provisions of this act.
Clogston v. Palmer, 32 L. D. 77, p. 80.
C. APPLICATION TO PURCHASE-SHOWING.
Under this section an application for purchase should show that the land applied for was of the numbered sections prescribed in the grant and was coterminous with the constructed parts of the railroad and was sold by the company as a part of its grant to one under whom the applicant claims, and is excepted from the operation of the grant by reason of the prior grant to the Atlantic & Pacific Railroad Company, and at the date of the sale it was not in the bona fide occupancy of adverse claimants under preemption or homestead laws, and that it has not been settled upon subsequent to the first day of December, 1882, and the applicant is a citizen of the United States and a bona fide purchaser by assignment of the Southern Pacific Railroad Company's contract and deed.
Clogston v. Palmer, 32 L. D. 77, p. 79.
The right to purchase from the Government under this section is not limited to the immediate purchaser from the company, but may be exercised by any bona fide purchaser who has the requisite qualifications as to citizenship, without reference to the qualifications of his immediate grantor or of any intervening purchaser, and the provisions of the section extend to bona fide purchases made since the date of the act. Clogston v. Palmer, 32 L. D. 77,
D. PURCHASER FROM RAILROAD COMPANY-TITLE TO MINERALS.
Under this section the right of a purchaser from the railroad company can not be defeated by a mineral claimant unless the proof shows as a present fact that the land is more valuable for mineral therein than for agricultural purposes.
Austin v. Luey, 21 L. D. 507, p. 511.
The grant to the railroad did not except lands valuable for coal.
Congress, knowing that the railroad company acquired title to coal land under its grant, clearly provided in this act that the company could relinquish any section of land acquired which is occupied by a small holding settler, thus protecting the home; the land so relinquished may be patented to the settler if he can show himself qualfied under the term of the act, and as the act provides that the railroad company relinquishing such land may select in lieu thereof "vacant public land of equal quality," the company may, upon relinquishing land valuable for coal, select in lieu thereof coal land equal in value to those relinquished.
Santa Fe Pac. R. Co., In re, 39 L. D. 135, p. 138.
II. RAILROAD LANDS-CLASSIFICATION.
28 STAT. 683, 2 SUPP. R. S. 385, FEBRUARY 26, 1895. CLASSIFICATION OF MINERAL LANDS-NORTHERN PACIFIC.
AN ACT To provide for the examination and classification of certain mineral lands in the States of Montana and Idaho.
Be it enacted, etc., That the Secretary of the Interior be, and is hereby, authorized and directed, as speedily as practicable, to cause all lands within the land districts hereinafter named in the States of Montana and Idaho within the land grant and indemnity land grant limits of the Northern Pacific Railroad Co., as defined by an act of Congress entitled "An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound, on the Pacific coast, by the northern route," approved July 2, 1864 (13 Stat. 365), and acts supplemental to and amendatory thereof, to be examined and classified by commissioners to be appointed as hereinafter provided, with special reference to the mineral or nonmineral character of such lands, and to reject, cancel, and disallow any and all claims or filings heretofore made, or which may hereafter be made, by or on behalf of the said Northern Pacific Railroad Co. on any lands in said land districts which upon examination shall be classified as provided in this act as mineral lands.
SEC. 2. That for the purpose of making the examination herein provided for there shall be appointed by the President of the United States, as soon as practicable after the passage of this act, three commissioners for each of the following land districts, to wit: The Bozeman, Helena, and Missoula land districts, in the State of Montana, and the Couer d'Alene land district, in the State of Idaho, at least one of whom for each district shall be a practical miner and a resident of such district; and said persons so appointed for each district shall constitute a board of commissioners to perform within such district the duties herein prescribed. They shall each receive for their compensation $10 for each day they may be actually engaged in the performance of their duties, which shall include their transportation and subsistence expenses, but the total amount of compensation to be paid to each commissioner annually shall in no case exceed the sum of $2,500; and their accounts shall be audited by the Secretary of the Interior and paid monthly. Before entering upon their duties each of said commissioners shall take an oath to faithfully perform the duties of his office. Said commissioners shall make examination of the lands herein mentioned within their respective districts, and may also take the testimony of witnesses as to the mineral or nonmineral character of any of said lands, and receive any other evidence relating to said matter, and shall have power to summon witnesses to appear before them, and to administer oaths; and they shall, immeediately upon their appointment, proceed to examine and classify the lands herein mentioned within their respective districts, as provided in this act, and shall fully complete said classification within the
term of 4 years from the date of this act. The oath of office of said commissioners shall be filed by them in the office of the Commissioner of the General Land Office. All testimony taken by said commissioners shall be reduced to writing, subscribed by the witnesses, and filed with the report of the commissioners hereinafter required. The action or decision of a majority of said commissioners in each district shall control in all matters herein provided for. That the commissioners shall perform the work of examination and classification herein directed according to such rules and regulations as the Secretary of the Interior shall prescribe.
SEC. 3. That all said lands shall be classified as mineral which by reason of valuable mineral deposits are open to exploration, occupation, and purchase under the provisions of the United States mining laws, and the commissioners, in making the classification herein provided for, shall take into consideration the mineral discovered or developed on or adjacent to such land, and the geological formation of all lands to be examined and classified, or the lands adjacent thereto, and the reasonable probabilities of such land containing valuable mineral deposits because of its said formation, location, or character. The classification herein provided for shall be by each legal subdivision where the lands have been surveyed. If the lands examined are not surveyed, classification shall be made by tracts of such extent, and designated by such natural or artificial boundaries to identify them, as the commissioners may determine. Where mining locations have been heretofore made or patents issued for mining ground in any section of land, this shall be taken as prima facie evidence that the 40-acre subdivision within which it is located is mineral land: Provided, That the word "mineral," where it occursin this act, shall not be held to include iron or coal: And provided further, That the examination and classification of lands hereby authorized shall be made without reference or regard to any previous examination or report or classification thereof.
SEC. 4. That such of the lands herein mentioned as have been surveyed prior to the passage of this act shall be first examined and classified as herein provided, and afterwards, and as speedily as practicable, the lands herein mentioned which have not been surveyed, until all the lands herein mentioned shall have been examined and classified, as herein provided.
SEC. 5. That said commissioners shall, on or before the fifth day of each month, file in the office of the register and receiver of the land office of the land district in which the land examined and classified is situated a full report, in duplicate, in such form as the Secretary of the Interior may prescribe, showing all lands examined by them during the preceding month, and specifying clearly, by legal subdivisions, where the land is surveyed, or otherwise by natural objects or permanent monuments to identify the same, the lands classified by them as mineral lands and those classified as nonmineral; and with said report shall be filed all testimony taken and written communications received by said commissioners relating to the lands embraced in the report. The register and receiver shall file one duplicate of said report in their office, together with all accompanying testimony and papers, and the other duplicate shall be by them forwarded direct to the Secretary of the Interior, and said
commissioners shall furnish to the Secretary of the Interior at any time such further or additional report or information as he may require concerning any matters relating to their duties or the performance of the same. Upon receipt of such report the register of the land office shall, at the expense of the United States, cause to be published in a newspaper of general circulation in the county in which the land is located, and in one newspaper published at the capital city of the State in which the lands may be situated, at least once a week for four consecutive weeks, notice of the classification of lands as shown by said report, and any person, corporation, or company feeling aggrieved by such classification may, at any time within 60 days after the first publication of said notice, file with the register and receiver of the land office a verified protest against the acceptance of said classification, which protest shall set forth in concise language the grounds of objection to the classification as to the particular land in said protest described, whereupon a hearing shall be ordered by, and conducted before, the said register and receiver, under rules and regulations as near as practicable in conformity with the rules and practice of such land office in contests involving the mineral or nonmineral character of land in other cases; and an appeal from the decision of the register and receiver shall be allowed to the Commissioner of the General Land Office and the Secretary of the Interior, under such rules and regulations as the Secretary of the Interior may prescribe: Provided, That at such hearings the United States shall be represented and defended by the United States district attorney or his assistants for the judicial district in which the land is situated, unless the Secretary of the Interior shall detail some proper officer of the Department of the Interior for that purpose. The compensation for such service shall not exceed $10 per day for each day's actual service before the register and receiver, to be paid out of the fund provided for the examination and classification of said mineral lands.
SEC. 6. That as to the lands against the classification whereof no protest shall have been filed as hereinbefore provided, the classification, when approved by the Secretary of the Interior, shall be considered final, except in case of fraud, and all plats and records of the local and general land offices shall be made to conform to such classification. All lands so classified as above without protest, and the classification whereof is disapproved by the Secretary of the Interior, and all lands whereof the classification has been invalidated for fraud, shall be subject to hearing and determination in such manner as the Secretary of the Interior may prescribe. And as to all such lands, and as to the lands against the classification whereof protest may be filed, the final ruling made after the day set for hearing shall determine the proper classification; and all records of the local and general land offices shall be made to conform to the classification as determined by such final ruling, and all costs of such hearings shall be paid by the unsuccessful party, under such rules as the Secretary of the Interior may prescribe; and the Secretary of the Interior is hereby authorized to establish such rules and regulations as may be necessary to carry into effect the true intent and provisions of this act as speedily as practicable.
SEC. 7. That no patent or other evidence of title shall be issued or delivered to said Northern Pacific Railroad Co. for any land in