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26 STAT. 662, OCTOBER 1, 1890. PROTECTION AGAINST PHOSPHATE DISCOVERIES. AN ACT For the protection of actual settlers who have made homesteads or preemption entries upon the public lands of the United States in the State of Florida upon which deposits of phosphate have been discovered since such entries were made.

Be it enacted, etc., That any person who has in good faith entered upon any lands of the United States in the State of Florida, subject at the date of said entry to homestead or preemption entry, and has actually occupied and improved the same for the purpose of making his or her home thereon, under the homestead or preemption laws, prior to the 1st day of April, 1890, shall have the right, upon complying with the further requirements of the law, in other respects to complete such homestead or preemption entry and receive a patent for the land so entered, occupied, and improved, notwithstanding any discovery of phosphate deposits upon or under the surface of any of said lands after such entry was made: Provided, That the entryman had no knowledge of the existence of such phosphate deposits upon the land which is the subject of such entry at the date when the settlement thereon was made. See pp. 1050, 1051.

A. PURPOSE OF ACT-SETTLERS PROTECTED. 1. PHOSPHATE DISCOVERIES PROTECTION OF SETTLERS

PROOF. On the discovery of phosphate lands and their value all entries made for lands containing such deposits were suspended and this act was passed for the protection of entrymen who had no knowledge of such deposits at the time of their settlement. Tucker v. Florida R., etc., Co., 19 L. D. 414, p. 417.

This act is entirely retrospective and applies exclusively to entries made prior to April 1, 1890. Gary v. Todd, 19 L. D. 475, p. 476.

Local officers can not ignore the law passed expressly for the protection of entries made on phosphate lands in Florida, because phosphate was found in other parts of the same county or in adjoining counties, and because an entryman expressed suspicion and hoped that some might be found on his land.

Gary v. Todd, 19 L. D. 475, p. 467 (on review). This act authorizes the occupation of public lands in Florida under homestead and preemption laws notwithstanding any discovery of phosphate deposits upon or under the surface, provided the entryman had no knowledge of the existence of such phosphate deposits when he settled thereon.

Gary v. Todd, 18 L. D. 58. Where an attempt is made to defeat an existing entry the burden of proof is on the party attacking its validity, and it must be shown that the phosphate deposit was upon the land which was the subject of the entry and that the entryman had knowledge of the existence of such deposits on his claim. Gary v. Todd, 19 L. D. 475, p.

476.
26 STAT. 1095, 1 SUPP. R. S. 940, MARCH 3, 1891.
REPEAL OF TIMBER-CULTURE AND PREEMPTION LAWS.

AN ACT To repeal timber-culture laws, and for other purposes. Be it enacted, etc., That an act entitled "An act to amend an act entitled 'An act to encourage the growth of timber on the western prairies,'” approved June 14, 1878 (20 Stat. 113), and all laws supplementary thereto or amendatory thereof, be, and the same are hereby, repealed: Provided, That this repeal shall not affect any valid rights heretofore accrued or accruing under said laws, but all bona fide claims lawfully initiated before the passage of this act may be perfected upon due compliance with law, in the same manner, upon the same terms and conditions, and subject to the same limitations, forfeitures, and contests as if this act had not been passed;

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Section 2 of this act amends the act of March 3, 1877 (19 Stat. 377, ch. 107), and is placed with that act.

SEC. 4. That chapter 4 of title 32, excepting sections 2275, 2276, and 2286 of the Revised Statutes of the United States, and all other laws allowing preemption of the public lands of the United States, are hereby repealed, but all bona fide claims lawfully initiated before the passage of this act under any of said provisions of law so repealed, may be perfected upon due compliance with law, in the same manner, upon the same terms and conditions, and subject to the same limitations, forfeitures, and contests as if this act had not been passed.

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Sec. 7. That whenever it shall appear to the Commissioner of the General Land Office that a clerical error has been committed in the entry of any of the public lands such entry may be suspended, upon proper notification to the claimant, through the local land office, until the error has been corrected; and all entries made under the preemption, homestead, desert-land, or timber-culture laws, in which final proof and payment may have been made and certificates issued, and to which there are no adverse claims originating prior to final entry and which have been sold or incumbered prior to March 1, 1888, and after final entry, to bona fide purchasers, or incumbrancers, for a valuable consideration, shall, unless upon an investigation by a Government agent, fraud on the part of the purchaser has been found, be confirmed and patented upon presentation of satisfactory proof to the Land Department of such sale or incumbrance: Provided, That after the lapse of two years from the date of the issuance of the receiver's receipt upon the final entry of any tract of land under the homestead, timber-culture, desert-land, or preemption laws, or under this act, and when there shall be no pending contest or protest against the validity of such entry, the entryman shall be entitled to a patent conveying the land by him entered, and the same shall be issued to him; but this proviso shall not be construed to require the delay of two years from the date of said entry before the issuing of a patent therefor.

The act of March 3, 1891 (26 Stat. 1093), amending the original section 8 of this act is placed with 20 Stat. 88, p. 1335.

SEC. 9. That hereafter no public lands of the United States, except abandoned military or other reservations, isolated and disconnected fractional tracts authorized to be sold by section 2455 of the Revised Statutes, and mineral and other lands the sale of which at public auction has been authorized by acts of Congress of a special nature having local application, shall be sold at public sale.

SEC. 10. That nothing in this act shall change, repeal, or modify any agreements or treaties made with any Indian tribes for the disposal of their lands, or of land ceded to the United States to be dis

posed of for the benefit of such tribes, and the proceeds thereof to be placed in the Treasury of the United States; and the disposition of such lands shall continue in accordance with the provisions of such treaties or agreements, except as provided in section 5 of this act. Section 11 applies to town sites and is section 85, Alaska Compiled Laws, p. 867. Section 12 is the same as section 92}, Alaska Compiled Laws, p. 868. Section 13 is section 924, Alaska Compiled Laws, p. 868. Section 14 is section 927, Alaska Compiled Laws, p. 868. Section 16 applies to town sites and is with section 2386 R. 8., p. 1378.

SEC. 17. That reservoir sites located or selected and to be located and selected under the provisions of “An act making appropriations for sundry civil expenses of the Government for the fiscal year ending June 30, 1889, and for other purposes,” and amendments thereto, shall be restricted to and shall contain only so much land as is actually necessary for the construction and maintenance of reservoirs; excluding so far as practicable lands occupied by actual settlers at the date of the location of said reservoirs, and that the provision of “An act making appropriations for sundry civil expenses of the Government for the fiscal year ending June 30, 1891, and for other purposes, which reads as follows, viz: "No person who shall after the passage of this act enter upon any of the public lands with a view to occupation, entry, or settlement under any of the land laws shall be permitted to acquire title to more than 320 acres in the aggregate under all said laws,” shall be construed to include in the maximum amount of lands the title to which is permitted to be acquired by one person only agricultural lands and not to include lands entered or sought to be entered under mineral-land laws. Section 18 of this act is with 10 Stat. 28, Right of Way, p. 1188.

SEC. 19. That any canal or ditch company desiring to secure the benefits of this act shall, within 12 months after the location of 10 miles of its canal, if the same be upon surveyed lands, and if upon unsurveyed lands, within 12 months after the survey thereof by the United States, file with the register of the land office for the district where such land is located a map of its canal or ditch and reservoir; and upon the approval thereof by the Secretary of the Interior thé same shall be noted upon the plats in said office, and thereafter all such lands over which such rights of way shall pass shall be disposed of subject to such right of way. Whenever any person or corporation, in the construction of any canal, ditch, or reservoir, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.

Sec. 20. "That the provisions of this act shall apply to all canals, ditches, or reservoirs heretofore or hereafter constructed, whether constructed by corporations, individuals, or association of individuals, on the filing of the certificates and maps herein provided for. If such ditch, canal, or reservoir has been or shall be constructed by an individual or association of individuals, it shall be sufficient for such individual or association of individuals to file with the Secretary of the Interior, and with the register of the land office where said land is located, a map of the line of such canal, ditch, or reservoir, as in case of a corporation, with the name of the individual owner or owners thereof, together with the articles of association, if any there be. Plats heretofore filed shall have the benefits of this act from the date

of their filing, as though filed under it: Provided, That if any section of said canal or ditch shall not be completed within five years after the location of said section, the rights herein granted shall be forfeited as to any uncompleted section of said canal, ditch, or reservoir, to the extent that the same is not completed at the date of the forfeiture.

SEC. 21. That nothing in this act shall authorize such canal or ditch company to occupy such right of way except for the purpose of said canal or ditch, and then only so far as may be necessary for the construction, maintenance, and care of said canal or ditch. Section 22 of this act applies to town sites and is with section 2386 R. S., p. 1379.

SEC. 23. 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, and in all cases where persons were actual settlers and residing upon their claims upon said Osage Indian trust and diminished reserve lands in the State of Kansas on May 9, 1872, and who have made subsequent preemption entries either upon public or upon said Osage Indian trust and diminished reserve lands, upon which there were no legal prior adverse claims at the time, and the law complied with as to settlement, said subsequent entries be, and the same are hereby, confirmed. Section 24 of this act applies to reservations and is with 16 Stat. 149, p. 1164.

A. PURPOSE AND CONSTRUCTION OF ACT.
B. APPLICATION OF ACT, p. 1225.
C. HOMESTEAD SETTLEMENTS, p. 1226.
D. RIGHTS OF WAY-EASEMENTS, p. 1228.
E. CLAIMS INITIATED UNDER ACT, p. 1228.

A. PURPOSE AND CONSTRUCTION OF ACT.

1. SETTLERS' RIGHTS PROTECTED.
2. MINERAL LANDS RESERVED.
3. ACT NOT RETROACTIVE.
4. REPEALING EFFECT.

1. SETTLERS' RIGHTS PROTECTED.

The object of this statute and other similar acts is to preserve the right of the actual settler, but not to open the door to manifest abuses, and during the five years' residence required the settler can treat the land as his own only so far as is necessary to carry out the purposes of the statute, as the law contemplates the possibility of his abandoning it, but prevents him in the meantime from destroying its value to others who may wish to enter or purchase it.

Shiver v. United States, 159 U. S. 491, p. 497.

This section requires a settler to show by affidavit his faithful endeavor to comply with all legal requirements as to settlement, residence, and cultivation necessary to acquire title to the land; and to show that he is not acting as agent for or in collusion with any other person to give them the benefit of either the land or the timber thereon.

Shiver v. United States, 159 U. S. 491, p. 496.

2. MINERAL LANDS RESERVED.

This act is intended to be read and construed in connection with the general reservation of mineral lands contained in the mining statutes which declare that lands valuable for minerals shall be reserved from sale except as provided by law.

Cosmos Exploration Co. v. Gray Eagle Oil Co., 104 Fed. 20, p. 47.
See United States v. Burkett, 150 Fed. 208, p. 211.

3. ACT NOT RETROACTIVE.

This act is not intended to be retroactive and can only apply to entries made after its passage.

Protector Lode, In re, 12 L. D. 662, p. 663. This statute does not affect pending cases because the terms of the act were not such as to make it retroactive in its effect.

Plymouth Lode, In re, 12 L. D. 513, p. 515.
Pacific Slope Lode, In re, 12 L. D. 686, p. 689.

4. REPEALING EFFECT.

This statute repeals the provisions of the preemption law in which in express terms was the provision in respect to known salines or mines.

Cosmos Exploration Co. v. Gray Eagle Oil Co., 104 Fed. 20, p. 41. Dornen v. Vaughn, 16 L. D. 8, p. 11. The repealing provision of this statute did not affect an entry made before its enactment, but preserved any rights in the land unimpaired and left the time within which final proofs could be made without change. United States v. Burkett, 150 Fed. 208,

While this statute repealing the preemption law also eliminated from the homestead law "known salines or mines," the statute declaring that no mineral lands shall be liable to entry and settlement under the provisions of the homestead law was still in force and the term “mineral lands," as used in that statute, is more general and much broader than the term referring to any known salines or mines in the original preemption law.

Cosmos Exploration Co. v. Gray Eagle Oil Co., 104 Fed. 20, p. 46.
See United States v. Burkett, 150 Fed. 208, p. 211.

P. 211.

B. APPLICATION OF ACT.

1. NONMINERAL LANDS.
2. MINERAL LANDS IN RESERVATIONS-ENTRY.

1. NONMINERAL LANDS.

The regulations prescribed for carrying into effect the provisions of this act declare that its operation shall be confined to nonmineral lands.

White, In re, 34 L. D. 78, p. 79. City & County of Beaver, In re, 34 L. D. 112, p. 113. This act confirms entries of the classes named in the statute authorizing them and which are for lands commonly spoken of as agricultural as distinguished from mineral lands. Herman v. Chase, 37 L. D. 590, p. 591.

56974-Bull. 94, pt 2—15_26

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