Who may enter. entries were in pursuance of an understanding or agreement with the Martin-Alexander Co. that, as it was advancing all the money, the entryman should convey to it the standing timber at a fixed price. (United States v. Detroit Lumber Co., 200 U. S., 321.) The act does not in any respect limit the domain which the purchaser has over the land after it is purchased from the Government, or restrict, in the slightest, his power of alienation. All that it denounces is a prior agreement, the acting for another in the purchase. If, when the title passed from the Government, no one save the purchaser has any claim for it, the act is satisfied. Montgomery might rightfully come or send into that vicinity and make known generally or to individuals a willingness to buy timberland at a price in excess of that which it would cost to obtain it from the Government, and any person knowing of that offer might rightfully come to the land office and make application and purchase a timber tract from the Government. (United States v. Budd, 144 U. S., 154.) A person desiring to purchase a large tract of timberlands of the United States may lawfully express such desire to another, and contract with him to purchase the lands and advance money to enable the seller to acquire the land from the entryman, and he is not bound to inquire into the method by which such seller acquires the title, nor chargeable with any fraud therein which would render the patent subject to cancellation, of which he has no actual knowledge. (U. S. v. Barber Lumber Co. (C. C. A.), 194 Fed., 24.) To warrant the cancellation of a patent for lands on account of fraud, the evidence must be clear, unequivocal, and convincing, and it can not be done on a bare preponderance of evidence which leaves the issue in doubt. (Idem.) Application under the timber and stone act (sworn statement) must be based on a personal examination of the land and not made on information and belief or by agent. (Ness v. Fisher, 223 U. S., 683; see also case of Frank L. Chambers et al., 40 L. D., 85.) Section 1 of the act of March 3, 1911, authorizing the reinstatement of homestead entries canceled or relinquished because of the erroneous allowance of such entries after the withdrawal of lands for national forest purposes makes no provision for the reinstatement of canceled timber and stone entries. (Albert L. Knight, 41 L. D., 261.) DESERT-LAND LAWS. Act March 3, 1877 (19 Stat., 377). That it shall be lawful for any citizen of the United States, or any person of requisite age "who may be entitled to become a citizen, and who has filed his declaration to become such" and upon payment of twenty-five cents per acre-to file a declaration under oath with the register and the receiver of the land district in which any desert land is situated, that he intends to reclaim a tract of desert land not exceeding one section,1 by conducting water upon the same, within the period Water for irri- of three years thereafter: Provided, however, That the right to the use gation. When issues. of water by the person so conducting the same, on or to any tract of desert land of six hundred and forty acres shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands, and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes subject to existing rights. Said declaration shall describe particularly said section of land if surveyed, and, if unsurveyed, shall patent describe the same as nearly as possible without a survey. At any time within the period of three years 2 after filing said declaration, upon making satisfactory proof to the register and receiver of the reclamation of said tract of land in the manner aforesaid, and upon 1 Limited to 320 acres by act next following, section 7. the payment to the receiver of the additional sum of one dollar per acre for a tract of land not exceeding six hundred and forty acres to any one person, a patent for the same shall be issued to him: Provided, That no person shall be permitted to enter more than one tract of land and not to exceed six hundred and forty acres, which shall be in compact form. SEC. 2. That all lands exclusive of timber lands and mineral lands which will not, without irrigation, produce some agricultural crop, shall be deemed desert land, within the meaning of this act, which fact shall be ascertained by proof of two or more credible witnesses under oath, whose affidavits shall be filed in the land office in which said tract of land may be situated. What are desert lands. States. SEC. 3. That this act shall only apply to and take effect in the Law applicable States of California, Oregon, and Nevada, and the Territories of only in certain Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico, and Dakota, and the determination of what may be considered desert land shall be subject to the decision and regulation of the Commissioner of the General Land Office. Act March 3, 1891 (26 Stat., 1095), amending desert land law. SEC. 2. That an act to provide for the sale of desert lands in certain States and Territories, approved March third, eighteen hundred and seventy-seven, is hereby amended by adding thereto the following sections: Maps showing tion. "SEC. 4. That at the time of filing the declaration herein before required the party shall also file a map of said land which shall exhibit mode of irrigaa plan showing the mode of contemplated irrigation, and which plan shall be sufficient to thoroughly irrigate and reclaim said land, and prepare it to raise ordinary agricultural crops, and shall also show the source of the water to be used for irrigation and reclamation. Persons entering or proposing to enter separate sections or fractional parts of sections of desert lands may associate together in the construction of canals and ditches for irrigating and reclaiming all of said tracts, and may file a joint map or maps showing their plan of internal improve ments. re Expenditure of $3 per acre quired. Proof "SEC. 5. That no land shall be patented to any person under this act unless he or his assignors shall have expended in the necessary irrigation, reclamation, and cultivation thereof, by means of main canals and branch ditches, and in permanent improvements upon the land, and in the purchase of water rights for the irrigation of the same, at least three dollars per acre of whole tract reclaimed and patented in the manner following: Within one year after making entry for such tract of desert land as aforesaid, the party so entering shall expend not less than one dollar per acre for the purposes aforesaid; and he shall in like manner expend the sum of one dollar per acre during the second and also during the third year thereafter, until the full sum of three dollars per acre is so expended. Said party shall file during each year with the register, proof, by the affidavits of two or more credible wit- penditures. nesses, that the full sum of one dollar per acre has been expended in such necessary improvements during such year, and the manner in which expended, and at the expiration of the third year a map or plan showing the character and extent of such improvements. If any party who has made such application shall fail during any year to file the testimony aforesaid, the lands shall revert to the United States, and the twenty-five cents advanced payment shall be forfeited to the United States, and the entry shall be canceled. Nothing herein contained shall prevent a claimant from making his final entry and receiving his patent at an earlier date than herein before prescribed, provided that he then makes the required proof of reclamation to the aggregate extent of three dollars per acre: Provided, That proof be further required of the cultivation of one-eighth of the land. of. ex Cultivation. tion. elec "SEC. 6. That this act shall not affect any valid rights heretofore Existing rights accrued under said act of March third, eighteen hundred and seventy- preserved; seven, but all bona fide claims heretofore lawfully initiated may be perfected, upon due compliance with the provisions of said act, 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 When issues. patent passed; or said claims, at the option of the claimant, may be perfected and patented under the provisions of said act, as amended by this act, so far as applicable; and all acts and parts of acts in conflict with this act are hereby repealed. "SEC. 7. That at any time after filing the declaration, and within the period of four years thereafter, upon making satisfactory proof to the register and the receiver of the reclamation and cultivation of said land to the extent and cost and in the manner aforesaid, and substantially in accordance with the plans herein provided for, and that he or she is a citizen of the United States, and upon payment to the receiver of the additional sum of one dollar per acre for said land, a patent shall issue therefor to the applicant or his assigns; but no person or association of persons shall hold, by assignment or otherwise prior to the issue 320-acre limita- of patent, more than three hundred and twenty acres of such arid or desert lands; but this section shall not apply to entries made or initiated Proofs and con- prior to the approval of this act: Provided, however, That additional proofs may be required at any time within the period prescribed by law, and that the claims or entries made under this or any preceeding act shall be subject to contest, as provided by the law relating to homestead cases, for illegal inception, abandonment, or failure to comply with the requirements of law, and upon satisfactory proof thereof shall be canceled, and the lands and moneys paid therefor shall be forfeited to the United States. tion. tests. Desert-land Colorado. "SEC. 8. That the provisions of the act to which this is an amendment, laws extended to and the amendments thereto, shall apply to and be in force in the State of Colorado, as well as the States named in the original act; and no person shall be entitled to make entry of desert land except he be a resident citizen of the State or Territory in which the land sought to be entered is located. Desert-land surveyed lands. LIMITATIONS AND RESTRICTIONS-EXTENSION OF TIME. Act of March 28, 1908 (35 Stat., 52). That from and after the passage of this act the right to make entry of laws restricted to desert lands under the provisions of the act approved March third, eighteen hundred and seventy-seven, entitled "An act to provide for the sale of desert lands in certain States and Territories," as amended by the act approved March third, eighteen hundred and ninety-one. entitled "An act to repeal timber-culture laws, and for other purposes, shall be restricted to surveyed public lands of the character contemplated by said acts, and no such entries of unsurveyed lands shall be allowed or made of record: Provided, however, That any individual qualified to make entry of desert lands under said acts who has, prior to survey, taken possession of a tract of unsurveyed desert land not exceeding in area three hundred and twenty acres in compact form, and has reclaimed or has in good faith commenced the work of reclaiming the Preference same, shall have the preference right to make entry of such tract under said acts, in conformity with the public land surveys, within ninety days after the filing of the approved plat of survey in the district land office. rights. Assignments restricted. Extension time. of SEC. 2. That from and after the date of the passage of this act no assignment of an entry made under said acts shall be allowed or recognized, except it be to an individual who is shown to be qualified to make entry under said acts of the land covered by the assigned entry, and such assignments may include all or part of an entry; but no assignment to or for the benefit of any corporation or association shall be authorized or recognized. SEC. 3. That any entryman under the above acts who shall show to the satisfaction of the Commissioner of the General Land Office that he has in good faith complied with the terms, requirements, and provisions of said acts, but that because of some unavoidable delay in the construction of the irrigating works, intended to convey water to the said lands, he is, without fault on his part, unable to make proof of the reclamation and cultivation of said land, as required by said acts, shall, upon filing his corroborated affidavit with the land office in which said land is located, setting forth said facts, be allowed an additional period of not to exceed three years, within the discretion of the Commissioner of the General Land Office, within which to furnish proof, as required by said acts, of the completion of said work. SECOND DESERT-LAND ENTRIES. Act of March 26, 1908 (35 Stat., 48). Act of February 3, 1911 (36 Stat., 896). LIMITATION TO 320 ACRES UNDER ALL LAND LAWS, EXCEPTING MINERAL LAWS. Act of August 30, 1890 (26 Stat., 391). Act of March 3, 1891, section 17 (26 Stat., 1095). SECRETARY OF INTERIOR AUTHORIZED TO GRANT FURTHER TIME FOR MAKING FINAL PROOF. Act of April 30, 1912 (37 Stat. 106). DECISIONS UNDER THE DESERT-LAND LAWS. Land that produces a natural growth of timber is not subject to desert entry, and it is immaterial whether such timber is of value or not. (15 L. D., 271.) Lands that, one year with another, for a series of years will not without artificial irrigation produce reasonably remunerative crops are desert within the meaning of the desert land law. (Penderson v. Parkinson, 37 L. D., 522.) Lands situated within a notoriously arid or desert region, and themselves previously desert within the meaning of the desert land law, do not necessarily lose their character as desert lands merely because of unusual rainfall for a few successive seasons their productiveness was increased and larger crops were raised thereon; and under such circumstances a strong prepoderance of evidence will be required to take them out of the class of desert lands. (Same.) One who makes desert entry of such lands must, however, clearly show, in submitting proof, not only that he has the right to a sufficiency of water to successfully irrigate the lands, and that the system of ditches is adequate for that purpose, but also that the necessary supply of water has been actually used on said lands in a manner to prove the beneficial results. (Same.) SCHOOL LANDS. DECISIONS AS TO SCHOOL LANDS IN NATIONAL FORESTS. Title to school sections does not pass until approval of the survey by the General Land Office, and a forestry withdrawal between the date of actual survey in the field and the date of such approval, prevents the vesting of title and the selection of lieu lands under the act of June 4, 1897. (F. A. Hyde & Co., 37 L. D., 164.) School sections surveyed before inclusion within the boundaries of a National Forest have vested in the State, and are not affected by the forestry proclamation. The State is not empowered to select other lands in place of such sections under Revised Statutes, sections 2275, 2276, as amended by the act of February 28, 1891. (Hibberd v. Slack, 84 Fed., 571.) In Montana, Washington, North and South Dakota, a forestry withdrawal prior to survey makes a school section a part of the National Forest so long as the reservation continues, but the State may, if it choose, take indemnity. (State of Montana, 38 L. D., 247.) Under the grants to North and South Dakota, Montana, and Washington (act Feb. 22, 1889, 25 Stat., 676), the States take no right until the lands are surveyed. (Clemmons v. Gillette, 33 Mont., 821; 83 Pac., 879; Contra State v. Whitney, 120 Pac., 116.) The State of Idaho can not authorize the cutting of timber from unsurveyed school sections. (United States v. Bonners Ferry Lumber Co., 184 Fed., 187.) 66777°-13 The acts of Congress "reserving" sections 16 and 36 for the Territory of Arizona did not vest any title in the Territory, even after survey, but such sections remain subject to the plenary power of disposal by Congress. (2 Sol. Op., 793.) The provisions in the enabling act of New Mexico, that the grants of sections 2, 16, 32, and 36 within National Forests shall not vest title in the State while the National Forests continue to exist, and that said sections "shall be administered as a part of said forests," fixes and controls the status of all these sections, notwithstanding the previous grant of sections 16 and 36 to the Territory. (2 Sol. Op., 848.) School sections in National Forests in New Mexico are subject to administration by the Forest Service, whether surveyed or unsurveyed, and the title remains in the United States so long as the forests exist. (2 Sol. Op., 863.) An application by the governor of a State for the survey of public lands for purposes of selection under the provisions of the act of August 18, 1894 (28 Stat., 394), and the withdrawal of the lands for that purpose by the Secretary of the Interior, does not prevent the President from including the lands in a National Forest and thereby defeating the State's preference right of selection. (27 Op. Atty. Gen., 605.) Such application for survey and the withdrawal thereon do not constitute a legal entry," a "lawful filing, or a "valid settlement" in the meaning of the exceptions contained in a forestry proclamation. (Id., 605.) LIEU SELECTIONS. The act of June 4, 1897, authorizing selections of land in lieu of those embraced in forest reserves was repealed by the act of March 3, 1905. (33 Stat., 1254.) A pending unapproved application to make forest lieu selection will not prevent withdrawal of lands embraced therein for the purpose of reserving the power sites thereon for public uses. (Sherar v. Veazie, 40 L. D., 549.) An application to make forest lieu selection of unsurveyed lands not identified with reference to natural boundaries or monuments or such markings upon the ground as would constitute notice to intending settlers is no bar to the attachment of rights under the act of May 14, 1880; and while approval of the township plat of survey is an identification of the lands as of the date of such approval, and, by relation, as against the Government, as of the date of the filing of the application, it does not and can not so attach as to cut out intervening adverse settlement claims. (F. A. Hyde et al., 40 L. D., 284.) Upon approval of an application to make forest lieu selection the the title of the Government to the lands relinquished as base therefor attaches, under the doctrine of relation, as of the date the selection was perfected and entitled to be approved. (A. G. Strain, 40 L. D., 108.) RAILROAD GRANT LANDS. Unclassified odd sections within the primary limits of the Northern Pacific Railroad grant, even though not surveyed, form no part of the National Forests within which they lie, and the Forest Service has no power of administration over them. (1 Sol. Op., 79; see also, 1 Sol. Op., 294 and 541.) Legal title to all odd sections, not mineral, within the 10-mile limit passed to the Central Pacific Railroad Co., upon definite location of its line, without the issuance of patent. (2 Sol. Op., 897.) The exception of lands returned and denominated as mineral must also be held to operate, as of the date of the definite location of the road. A subsequent survey and return as mineral of lands not mineral in fact would not divest the company's title. (Same.) The mineral or nonmineral character of lands within the grant limits of the Southern Pacific Railroad Co. can be conclusively determined by the Department of the Interior, either by the issuance of patent upon the Surveyor General's ex parte return as to the character of the lands, or after a hearing properly applied for to test the return of the Surveyor General. (Same.) |