Mr. GANDY. The situation in my district pertains to small agricultural tracts, probably nothing over 40 acres.

The CHAIRMAN. We will adjourn then until to-morrow morning at 10 o'clock.

(Whereupon, at 12 o'clock noon, the committee adjourned until 10 o'clock a. m., Saturday, February 21, 1920).

COMMITTEE ON PUBLIC LANDS,

HOUSE OF REP ESENTATIVES,
Saturday, February 21, 1920.

The committee this day met, Hon. Nicholas J. Sinnott (chairman) presiding.

STATEMENT OF HON. HARRY L. GANDY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF SOUTH DAKOTA.

Mr. GANDY. Mr. Chairman, I want at this stage of the hearing to have H. R. 11118 precede my remarks, inasmuch as it affects only the national forests in the State of South Dakota.

The CHAIRMAN. Without objection, that will be inserted in the record. (Said bill follows:)

[H. R. 11118, Sixty-sixth Congress, second session.]

A. BILL Authorizing the consolidation of lands in the national forests in State of South Dakota. 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 be, and hereby is, authorized to accept on behalf of the United States title to any lands in private ownership within national forests in the State of South Dakota, if in the opinion of the Secretary of Agriculture the lands are chiefly valuable for national forest purposes, and in exchange therefor, may give Government land in the national forests in the same State not to exceed the value of such privately owned lands as may be determined by the Secretary of Agriculture and acceptable to the owner as fair compensation, taking into consideration any mineral rights or easements reserved by either party to the exchange. Lands conveyd to the United States under this act shall, upon acceptance of title, become parts of the national forests in which they are situated.

Mr. GANDY. The Black Hills country of South Dakota, a large part of which is now included in forest reserves, was opened for settlement and homestead entry many years before the forest reserves were established, and many years before the policy of forest-reserve homesteads by metes and bounds was adopted. The homesteads that were taken in the forests prior to the metes and bounds survey law were taken by legal subdivisions. You who are familiar with the little mountain parks, as they follow stream and valley, can well appreciate and understand that taking a homestead by legal subdivisions

The CHAIRMAN (interposing). You mean mountain meadows?

Mr. GANDY. Mountain meadows. That in taking a homestead by legal subdivisions it was impossible, in a great number of cases, to take all of the agricultural land in the little park or meadow, so that on the outside of these homesteads that were taken prior to the metes and bounds survey, in practically every instance, we find little tracts of agricultural land, varying from a few acres to 15, 20, and sometimes 30 or 35 acres. In most instances the original homesteader

of the land or the present purchaser is precluded from taking the remainder of the agricultural land for two reasons; first, if the original homesteader still owns the land he got 160 acres at the time he homesteaded, although usually but a small proportion of that is agricultural land, and a quarter section is the limit of a homestead within the forest reserves.

The CHAIRMAN. He had to take that according to the Government numbers or descriptions.

Mr. GANDY. That is the reason. And, second, if he is a purchaser of one of these tracts that were homesteaded by legal subdivisions, even if the Forest Service does list the small adjoining tract for entry, in order to take advantage of it, he would have to establish his residence on this small adjoining tract, which is impracticable in most cases. The original locator of the land built his buildings on the only feasible building site. For the small tract he could not afford to tear down the present buildings and move to the adjoining land. Three different modes of procedure have presented themselves in trying to solve this problem, that the homesteader or the owner of one of those tracts might take the adjoining land. Section 2289 of the Revised Statutes, in its last sentence, reads as follows:

And every person owning and residing on land may, under the provisions of this section, enter other land lying contiguous to his land, which shall not, with the land so already owned and occupied, exceed in the aggregate 160 acres.

That is commonly referred to as the adjoining farm provision of the homestead laws, and the regulations thereunder are found on page 9 of general circular No. 541 of the Department of the Interior, being "suggestions to homesteaders and persons desiring to make homestead entries." The regulations read as follows:

An adjoining farm entry may be made for such an amount of public lands lying contiguous to lands owned and resided upon by the applicant as will not, with the lands so owned and resided upon, exceed in the aggregate 160 acres; but no person will be entitled to make entry of this kind who is not qualified to make an original homestead entry. A person who has made one homestead entry, although for a less amount than 160 acres, and perfected title thereto, is not qualified to make an adjoining farm entry. In connection with an entry of this character, there must be shown the required amount of residence and cultivation after the date thereof, but both residence and cultivation may be had on the original tract.

It is easy to be seen under that statute and regulation if a man had homesteaded less than 160 acres, or if he had purchased less than 160 acres, and had not had a homestead anywhere else, he might take the adjoining land and continue to reside on his present building site; if, however, the original homestead was 160 acres, whether the man now be the original owner or the purchaser, he could not take advantage of that, or if he be a purchaser who had a homestead somewhere else he could not secure the adjoining small tract of agricultural land. It is my understanding, after having discussed this question thoroughly and through the course of several years past, that Interior Department officials felt and do feel that some provision might be worked out along the line of this adjoining farm homestead idea that would solve the problem in the Black Hills. That, however, is opposed by Forest Service officials, because it would set a precedent for permitting a man to acquire more than 160 acres under the homestead laws within the forest boundaries, even though the tract now sought to be acquired is very small.

The second way under which these small tracts might be disposed of would be by sale under some such provisions as the isolated tract law, which is section 2455 of the Revised Statutes, reading as follows:

It may be lawful for the Commissioner of the General Land Office to order into market and sell at public auction, at the land office of the district in which the land is situated, for not less than $1.25 an acre, any isolated or disconnected tract or parcel of the public domain not exceeding one-quarter section which, in his judgment, it would be proper to expose to sale after at least 30 days' notice by the land officers of the district in which such land may be situated: Provided, That any legal subdivisions of the public land, not exceeding one quarter section, the greater part of which is mountainous or too rough for cultivation, may, in the discretion of said commissioner, be ordered into the market and sold pursuant to this act upon the application of any person who owns lands or holds a valid entry of lands adjoining such tract, regardless of the fact that such tract may not be isolated or disconnected within the meaning of this act: Provided further, That this act shall not defeat any vested right which has already attached under any pending entry or location.

However, that law can not be taken advantage of at this time, because it is not applicable to forest reserve land.

Mr. JOHNSON. Í have not read your bill. What does your bill provide?

Mr. GANDY. It is an exchange bill, and that is the third mode of procedure under which this situation could be handled.

Mr. WHITE. Is it a substitute for the bill which we have been discussing?

Mr. GANDY. No; this is another phase of the general exchange idea. In connection with the isolated tract proposition, the Interior Department officials thought we might work out some law, but Forest Service officials feared to establish a precedent of selling forest reserve lands. Then the third plan came up of an exchange basis. Practically every one of these old ranches have enbodied therein some rough lands, lands that they can not use for agricultural purposes or within the forests there is rough land they can acquire and use as a basis of exchange.

Mr. JOHNSON. What good would it be to the Government? If it was not serviceable to private owners, what service would it be to the Government?

Mr. GANDY. Well, it may be land either now covered with a stand of timber or young growth or land that would be proper for reforestation.

Mr. VAILE. In any event, it would be up to the Forestry Service as to whether it desired to make the trade?

Mr. GANDY. Yes. The bill carries the same discretionary powers that the other bill carries. I want to be fair in the matter and say that in this instance the pressing need is on behalf of the original homesteaders and the present owners-that is, the original homesteaders if they have remained in possession, and the present owners if they have purchased those homesteads that were taken under the old legal subdivision procedure, in order that they may acquire these little tracts of purely agricultural land that adjoin them.

Mr. JOHNSON. I am heartily in favor of that and in asking these questions I am not antagonistic to the bill; I am very much in favor of it. Mr. GANDY. Many of these little tracts are lying there today, of no service to anybody.

Mr. VAILE. They are not farmed by the Government?

Mr. GANDY. They are not farmed by the Government or anyone else. I want to qualify that by saying that in quite a number of instances, under the lease provisions of the Forest Reserve regulations

many of these tracts are leased to the adjoining owners and have been leased for many years, but the owner, under present laws, never can procure title to them, and many of them are not of any service whatever.

The CHAIRMAN. How many acres does the original owner have in his holding?

Mr. GANDY. The maximum amount that could be homesteaded was 160 acres.

The CHAIRMAN. Your idea is for the man owning the 160 acres. to surrender to the Government that part of his 160 acres that is forest or potential forest land, and take in exchange therefor the agricultural land contiguous to him?

Mr. GANDY. The bill provides that:

The Secretary of the Interior be, and hereby is, authorized to accept on behalf of the United States title to any lands in private ownership within national forests in the State of South Dakota, if, in the opinion of the Secretary of Agriculture, the lands are chiefly valuable for national forest purposes and, in exchange therefor, may give Government land in the national forests in the same State not to exceed the value of such privately owned lands as may be determined by the Secretary of Agriculture and acceptable to the owner as fair compensation, taking into consideration any mineral rights or easements reserved by either party to the exchange.

The CHAIRMAN. What I was getting at was how it will work out in practice. The owner will surrender that part of his 160 acres that is good for forest purposes-is that the idea?

Mr. GANDY. That is the idea, or so much thereof as may sary to effect an exchange.

be necesThe CHAIRMAN. And he will take in exchange the contiguous agricultural land?

Mr. GANDY. The land to be given to the homesteader or to the owner of one of those old homesteads in South Dakota is purely agricultural land.

The CHAIRMAN. And he will surrender by metes and bounds and take by metes and bounds, will he not?

Mr. GANDY. In all probability.

The CHAIRMAN. Would the objection be raised that he is giving up jagged ends and taking over jagged ends?

Mr. GANDY. Well, that objection might be raised. In connection with my remarks on this subject I want to ask unanimous consent of the committee to include in the record the reports of the Secretary of Agriculture and the Secretary of the Interior, as well as certain letters which I have received from one J. Charles Sherman, of Pactola, S. Dak.

Mr. JOHNSON. Who is he?

Mr. GANDY. He is a rancher in the Black Hills. And one from John Hoffman, of Keystone, S. Dak., they being the two who have been most active in presenting this matter to me.

The CHAIRMAN. Without objection they will go in the record. (Said reports and letters follow:)

Hon. N. J. SINNOTT,

Chairman Committee on Public Lands,

House of Representatives.

JANUARY 12, 1920.

DEAR MR. SINNOTT: Receipt is acknowledged of your request for a report upon the bill (H. R. 11118) authorizing the consolidation of lands in the national forests in the State of South Dakota.

The bill would authorize the Secretary of the Interior to accept on behalf of the United States title to any lands in private ownership within the national forests in he State of South Dakota, if, in the opinion of the Secretary of Agriculture, the lands

are chiefly valuable for national forest purposes. In exchange therefor, the grantor may be given Government land in the national forests in South Dakota not to exceed in value such privately owned lands conveyed to the Government.

In effecting these exchanges, either the grantor or the Government may make reservations of minerals or easements.

From the records in the Forest Service it is found that within the South Dakota national forests there are many tracts of privately owned land intermingled with the Government's holdings. In many instances these disconnected tracts are owned by the same person. Rights to them were initiated prior to the establishment of the national forests, and much of the land was patented under the timber and stone act. Most of these areas are of such general character, and support such forest cover, that they are essentially forest lands and would serve their highest usefulness under Government administration as parts of the national forests in which they are located. In their unprotected state they present a fire menace to the adjacent Government lands. Consolidation of these areas would materially reduce the danger from fire and would simplify many problems of Government administration. Often such lands are so located as to embarrass the Government in the ordinary process of administering its own lands, and are a hindrance to those who desire the use of the national forest lands for grazing or other purposes. Privately owned tracts in a timber sale unit, or in a free use area, in a national forest, present possibilities of endless complications which might be avoided if the Government were authorized to consolidate its lands through exchanges with the private owners.

It often has been found that the Government could not accept title in other land exchanges authorized by special laws because certain mineral rights had been reserved before the present owner of the land secured title, although the land in question was not known to contain any minerals. In commercial sales of land such reservations of minerals are disregarded. While titles may be absolutely good otherwise, a reservation of mineral rights is a defect which the Government is forced to recognize and would prevent consummation of exchanges which in every other way would be acceptable both to the private owners and the Government.

Again, it has developed that owners of potential forest lands would have been glad to convey the surface rights to the Government as of a certain value, but the lands were known to contain precious minerals, or coal, or iron. Also, the Government has refused to accept land offered in exchange because it was a mineral district and, if acquired and made part of a national forest, might soon after the exchange was consummated be alienated under the mineral land laws, thereby rendering the exchange futile from a public standpoint. Moreover, very often the Government would be willing to give in exchange certain lands provided it might retain rights of way for logging roads or flumes needed periodically in future timber sales from lands lying back of the areas to be given in exchange. Also, sometimes the Government lands given in exchange are covered by easements granted by the Government for irrigation, or other purposes, under the various land laws.

In many instances the private owners will trade rough, nonagricultural timberlands for small areas of cultivable lands adjoining their own fields but too small in area to warrant their being taken up under the homestead law. In such cases this measure would work admirably to the advantage of both the Government and the private owners. Instances can be cited where certain lands proposed for exchange supported timber which had been sold but which could not be removed for more than a year. Exchanges could not be effected because fee simple title, without reservation of the timber, could not be granted. Such difficulty may be avoided by inserting in line 13, page 1, after the word "any," the words "timber or."

Also, as worded, there are certain classes of meritorious cases which could not be handled under the narrow scope of this measure, such as small areas of timberlands taken principally for their timber and owned by small sawmill operators. It may be desirable to add such tracts to the national forest in order that they may not constitute a menace to the adjoining Government timber through neglect or mismanagement. Such operators, however, are not ordinarily willing to exchange lands of this character for other equally small isolated tracts. It is therefore suggested that the bill be amended by including the words "or timber" after the word "land" in line 9. This amendment is consistent with the policy of Congress regarding exchanges on the Whitman National Forest expressed in the act of September 8, 1916 (39 Stat., 852).

This bill embodies principles which it is believed will make it possible to eliminate many of the obstacles above referred to, preventing the best administration of the national forests in South Dakota, and its enactment into law with the amendments suggested will benefit both the public and private owners of the lands concerned, The department, therefore, recommends its favorable consideration by your committee. Very truly, yours,

D. F. HOUSTON, Secretary.