RAILROAD GRANT-LANDS EXCEPTED.

HASTINGS AND DAKOTA RY. Co. v MARTIN.

Land embraced within a homestead entry at the date of the grant to this company is excepted therefrom, though said entry is canceled prior to definite location. The ruling of the supreme court in the case of Bardon v. Northern Pacific R. R. Co., as to the effect of a claim at the date of the grant to that company, is equally applicable to the Hastings and Dakota grant.

Secretary Smith to the Commissioner of the General Land Office, July 2, (J. I. H.) 1891. (C. W. P.)

The land involved in the appeal from the decision of your office of October 29, 1892, denying the claim of the Hastings and Dakota Railway Company thereto, is lot 1 and the SE. 4 of the NW. 4 of Sec. 9, T. 115 N., R. 30 W., Marshall land district, Minnesota, and is within the primary limits of the grant made by the act of July 4, 1866 (14 Stat., 87), to aid in the construction of said railroad.

At the date of the granting act, said land was embraced in homestead entry No. 1561, made July 12, 1864, which was cancelled November 22, 1866, because of failure to comply with legal requirements, and which had ceased to exist at the date of definite location of the road June 26, 1867.

March 4, 1881, Catherine Martin made her homestead entry of said land, and on February 9, 1886, final certificate was issued therefor. The Hastings and Dakota Railway Company claimed said land under its grant. But your office denied its claim. The railway company has appealed.

By departmental decision of November 15, 1892, in the case of Grinnell, et al. v. Hastings and Dakota Railway Company (15 L. D., 431), it was decided that lands embraced within a subsisting homestead entry at the date of the grant to said company, are excepted therefrom, although said entry may be cancelled prior to the definite location of the road. This decision was simply following the doctrine announced in the case of Bardon v. Northern Pacific Railroad Company (145 U. S., 535).

There is no force in the contention of the attorneys for the railroad company that the grant to it is distinguishable from the grant to the Northern Pacific Railroad Company, interpreted in Bardon v. Northern Pacific Railroad Company, supra.

The words in the third section of the grant to the Northern Pacific Railroad Company (13 Stat., 365), on which the question turns, are: Whenever, prior to said time, (i. e., the definite location of the route of the road) any of said sections, or parts of sections, shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other land shall be selected by said company in lieu thereof.

The language of the corresponding provision in the grant to the Hastings and Dakota Railway Company (14 Stat., 87) is:

In case it shall appear that the United States have, when the lines or route of said roads are definitely located, sold any section or part thereof granted, as aforesaid, or that the right of pre-emption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the Secretary of the Interior to cause to be selected, for the purposes aforesaid, from the public lands of the United States nearest to the tiers of sections above specified, so much land in alternate sections, or parts of sections, designated by odd numbers, as shall be equal to such lands as the United States have sold, reserved, or otherwise appropriated, or to which the right of homestead or pre-emption has attached, as aforesaid.

In the former grant, the language is "Whenever, prior to said time, any of said sections, etc., shall have been granted, etc."; in the latter grant, "In case it shall appear that the United States have, when the lines or route of said roads are definitely located, sold, etc." I am not able to discover any distinction in the meaning of the two grants. The words "have sold", "has attached", and "has been reserved by the United States", when the lines are definitely located, surely mean before the lines have been definitely located.

I am therefore of opinion that there was no error in the decision of your office appealed from, and it is affirmed.

RAILROAD SELECTIONS-MINERAL LANDS.

INSTRUCTIONS.

Secretary Smith to the Commissioner of the General Land Office, July (J. I. H.) (J. L. McC.)

9, 1894.

In the matter of the selection, by railroad companies, of lands in satisfaction of their grants, the following rules and regulations will be observed in determining whether the lands selected are mineral or nonmineral lands:

(1) Where the lands have been returned by the surveyor-general as mineral, a hearing may be had to determine the character of the land, under Rules 110 and 111 of Rules and Regulations issued December 10, 1891, controlling the disposal of mining claims.

(2) Where the lands selected by the company are within a mineral belt, or proximate to any mining claim, the railroad company will be required to file with the local land officers an affidavit, by the land agent of the company, which affidavit shall be attached to said list when returned, setting forth in substance that he has caused the lands mentioned to be carefully examined by the agents and employés of the company, as to their mineral or agricultural character, and that, to the best of his knowledge and belief, none of the lands returned in said list are mineral lands.

Upon receipt of said list you will cause it to be examined, and a clear list to be prepared of all lands embraced therein that are not within a radius of six miles from any mineral entry, claim, or location, which list shall be transmitted to the Department for its approval. If any of the lands embraced in said list of selections are found upon examination to be within a radius of six miles from any mineral entry, claim, or location, you will cause a supplemental list of such lands to be prepared, and return the same to the register and receiver of the district in which they are situated, and notify the railroad company that they have been so returned. The register and receiver will at once cause notice to be published in such newspapers as shall be designated by the Commissioner of the General Land Office, containing a statement that the railroad company has applied for a patent for the lands, desig nating the same by townships, and has filed lists of the same in the local land office; that said lists are open to the public for inspection; that a copy of the same, by descriptive subdivisions, has been conspicuously posted in said land office for inspection by persons interested, and the public generally; and that the local land officers will receive protests, or contests, within the next sixty days, for any of said tracts or subdivisions of land claimed to be more valuable for mineral than for agricultural purposes.

At the expiration of said sixty days, the register and receiver will return to the Commissioner of the General Land Office said supplemental list, noting thereon any protests, or contests, or suggestions, as to the mineral character of any of such lands, together with any information they may have received as to the mineral character of any of the lands mentioned in said list. After the same shall have been returned by the register and receiver, you will first eliminate from said supplemental list all the lands that have been protested, or contested, or claimed to be more valuable for mineral than for agricultural purposes, or concerning which any suggestion has been made as to their mineral character. The remaining lands you will certify to this Department for approval and patenting as agricultural.

In regard to lands protested or contested, or claimed to be mineral, or concerning which any suggestion has been made, or report by the register and receiver, as to their mineral character, you will order a hearing to be had by the local land officers in each case, after giving due notice to the persons furnishing such information, and to the railroad company, under the existing rules and regulations of the Department concerning hearings in cases where the land has been returned as mineral land.

The railroad company shall pay to the register and receiver the cost of advertising said lands in the manner set forth.

You are further instructed that all lists which have been heretofore prepared in accordance with any rules, regulations, or instructions of the Secretary of the Interior, where such rules have been complied

with (such as furnishing affidavits showing the non-mineral character of the lands in accordance with the instructions of the Interior Department), and such mineral affidavits furnished for each subdivision of forty acres, shall be excepted from the terms of the foregoing regulations. Also, where lists of selections are now pending of lands returned by the surveyor-general as mineral. where hearings have been had in accordance with rules 110 and 111 of Rules and Regulations of December 10, 1891, above referred to, and the local officers have determined that said lands are non-mineral in character, and such determination has been approved by the General Land Office, such lands shall be submitted to the Department for approval, without further investigation, although they may be within six miles of any mineral claim or location, unless since said hearing mineral claims or locations have been made of any tract embraced in said lists, in which event you will eliminate said tract from said list, and hold the same for further investigation.

STATE SELECTIONS-MINERAL LANDS.
INSTRUCTIONS.

Secretary Smith to the Commissioner of the General Land Office, July 9,
(J. I. H.)
(J. L. McC.)

1894.

I am in receipt of your communication of June 18, 1894, transmitting for examination and approval draft of a circular letter designed to put into operation the instructions of this Department relative to lists of State selections of lands within what are known or regarded as mineral belts. I return the same without approval, and direct that where lands selected by any State, under the various grauts, are within what are known or regarded as mineral belts, or in proximity to lands claimed or returned as mineral, the State or its selecting agent shall be required to comply with the rules and regulations this day promulgated relative to selections of lands similarly situated, within the limits of railroad grants.

RIGHT OF WAY-TERMINI OF LINE.

HESPERIA LAND AND WATER CO.

The certificates of the president and chief engineer of an irrigation company, attached to right of way maps, should designate the termini of a pipe line along which the right of way is claimed over the public land.

Secretary Smith to the Commissioner of the General Land Office, July 10, (J. I. H.) (F. W. C.)

1891.

I have considered the appeal by the Hesperia Land and Water company from your office decision of April 3, 1894, requiring said company to amend the certificates of the president and chief engineer attached

to its maps showing the proposed location of its pipe line, along which the right of way is claimed under the provisions of the act of March 3, 1891 (26 Stat., 1095).

The chief objection to the certificates referred to, is that they fail to designate the termini of the pipe line along which the right of way is claimed over the public lands.

Your letter suggested to the company that the old maps be not amended but that new maps be filed complying with the requirements contained in said letter-as the old ones are greatly defaced—and after approval they become the final record.

It is claimed in the appeal that the maps in their present shape met all the requirements in force at the time of the filing of the same, and for this reason they should be approved.

The reason for this claim would seem to be that the maps were once returned by your office with suggestions which were complied with, but that in your first letter you failed to note the defects now made the basis of your letter of April 3, 1894, before referred to.

It would appear from the map that this pipe line crosses, part of the way, private property, and that right of way is only claimed for a portion of the pipe line indicated on the map, and as it has always been required that the termini should be set forth in the affidavit and certificate attached to the map, I must approve your action requiring the amendment in this particular.

INDIAN LANDS-EMINENT DOMAIN.

OPINION.

In the exercise of the right of eminent domain a State may condemn for public pur poses, under proper procedure, lands embraced within Indian allotments. Assistant Attorney-General Hall to the Secretary of the Interior, June 25, (G. B. G.)

1894.

I have the honor to acknowledge the receipt, by verbal reference, of a letter from Hon. T. C. Power, United States Senator, addressed to your predecessor, Mr. Secretary Noble, transmitting a communication from the Commissioner of Indian Affairs, relative to the right of certain settlers at Stillwater, Montana, to build a bridge across the Yellowstone River, upon land duly allotted to an Indian woman of the Crow tribe.

In response to the inquiry of Senator Power, the Commissioner refers to the various treaties and agreements concluded with said tribe of Indians, and says there is no "authority of law for the building of roads, or construction of bridges across the Crow reservation in Montana, or over allotments made to the Indians of the said tribe, embracing lands formerly contained therein."