DESERT LAND ENTRY-CONTEST-APPLICATION.

JEFFERSON v. WINTER.

A preference right of entry is accorded to one who by the initiation of contest secures the cancellation of a desert land entry.

Application to make desert land entry accompanied by the purchase money constitutes a segregation of the land.

Acting Secretary Muldrow to Commissioner Sparks, June 7, 1887.

I have considered the case of Ira A. Jefferson v. Timothy J. Winter, as presented by the appeal of the former from the decision of your of fice, dated October 2, 1885, holding for cancellation his desert land entry No. 927 of the NW. 4, the W. of the NE. 4 of Sec. 27, the SW. of the SE., the SW. 4 of the NW. 4, and the SW. of Sec. 22, the E. of the NE. and the E. of SE. of Sec. 21, T. 1 N., R. 2 W., made June 2, 1884, at the Salt Lake City land office, in the Territory of Utah.

The record shows that on June 3, 1884, said Winter offered his application to enter said tracts under the act of Congress approved March 3, 1877 (19 Stat., 377), and said application was rejected by the local land officers, for the reason that the land had been appropriated by the prior entry of said Jefferson. Thereupon, Winter asked the register and receiver to reconsider their said action, which they refused to do. From the action of the local land officers rejecting his said application to enter said tracts, Winter duly appealed to your office, alleging that the prior entry of Jefferson was illegal, because received by the register after the close of the local land office on June 2; that the appellant's application was the first legal application for said land, and that it should have been allowed.

On July 24, 1885, your office directed the local land officers to report all of the circumstances attending the making of said entry by Jeffer son. In compliance with said order, the register on September 9th following reported that on June 20, 1877, one Levi P. Luckey made desert land entry No. 125 of said tracts; that on June 11, 1883, said Jefferson filed his affidavit of contest against said entry, alleging abandonment and non-compliance with the requirements of said act; that said contest affidavit was transmitted to your office and on October 3, same year, said entry was held for cancellation; that no appeal having been taken, after due notice to the claimant, said entry was canceled by your office letter, dated May 22, and upon the receipt of said letter of cancellation by the local land office, said Jefferson was permitted to make his said entry on June 2, 1884. The register further reported that both Jefferson and Winter employed attorneys in the city of Washington, D. C., who notified them by telegraph when said letter of cancellation was mailed; that said letter was delayed several days, on account of breaks in the railroad, and reached the local land office on the evening of June

3. In the absence of a decision by this Department that land in a school section is either mineral or non-mineral in character the State may proceed in one of three ways to have her rights and title defined, as follows:

(a) By applying to the Secretary of the Interior through the proper district office, where the land has been returned as non-mineral, for his certificate that the land was rightly so classed when the grant took effect. Such certificate will determine the matter" and establish the title of the State beyond attack by mineral claimants. Notice of such proceeding must be given by publication and posting, in the manner prescribed by the Rules of Practice.

(b) By proceeding to prove land which has been returned as mineral to be in fact non-mineral in the manner prescribed in Circulars "N" of September 23, 1880, and October 31, 1881.

(c) By relying upon the record for indemnity where lands have been entered as mineral. Where the State authorities have information that the mineral character of tracts in sections 16 and 36 is shown by evidence in this office, a list of them may be sent here, through the proper district office, to determine whether they may be used as bases for selec tions. If the decision should be in the negative, the character of such tracts may be determined under the procedure indicated in subdivisions a and b hereof.

4. Selections are restricted to lands returned as agricultural. The selected tracts must be connected with specific bases of not less than the quantity selected, and containing as near such quantity as practirable. Should the aggregate quantity of the bases in any list exceed that of the tracts selected the State will receive due credit upon adjustment of her grant. The character of selected tracts will be determined under the rules existing as to agricultural land entries. In all cases the selected tracts must be covered by non mineral affidavits made by the selecting agent of the State or an agent duly appointed by the State Board of Land Commissioners for the purpose, and in case of such appointment evidence thereof should accompany the affidavits.

5. In making selections on mineral bases the acts of 1875 and 1884 must be construed together. The law restricts selections to not more than one quarter section, and the tracts selected must be "as contiguous as may be" to the bases. As to such contiguity the rule is prescribed that vacant public land as near the basis as practicable shall be selected. Selections of land in a different district from that embrac ing the basis will not be admitted, unless it be clearly shown that there are no public lands in the district in which the basis is situated. The circular of the General Land Office of May 19, 1886, which allowed ap plications to be presented for lands in a different land district from that embracing the bases, is hereby modified accordingly.

6. The date of the filing in the district land office of each application to select must be certified to by the district officers and the application

noted on the records. When an application is allowed by direction of this office, the selections must be made of record as of date of filing the application in the usual manner. Lists of selections on mineral bases will be numbered in the current series of school selections in each district.

7. A fee of one dollar each allowed registers and receivers for cach final location of one hundred and sixty acres by the act of July 1, 1861 (seventh subdivision of section 2238, U. S. Revised Statutes), must be paid by the State upon admission of school selections, and the total amount of the fees received should be stated on the list in their certificate admitting the same.

Approved, May 2, 1887.

H. L. MULDROW,

Acting Secretary.

AN ACT to enable the people of Colorado to form a constitution and State government, and for the admission of the said State into the Union on an equal footing with the original States, approved March 3, 1875 (18 Stat., 474).

*

SEC. 7. That sections numbered sixteen and thirty-six in every township, and where such sections have been sold or otherwise disposed of by any act of Congress, other lands, equivalent thereto, in legal subdivisions of not more than one quarter section, and as contiguous as may be, are hereby granted to said State for the support of common schools.

SEC. 14. That the two sections of land in each township herein granted for the support of common schools shall be disposed of only at public sale and at a price not less than two dollars and fifty cents per acre, the proceeds to constitute a permanent school fund, the interest of which to be expended in the support of common schools.

SEC. 15. That all mineral lands shall be excepted from the operation and grants of this act.

AN ACT to enable the State of Colorado to take land in lieu of the sixteenth and thirty-sixth sections found to be mineral lands, and to secure to the State of Colorado the benefit of the act of July second, eighteen hundred and sixty-two, entitled "An act donating public lands to the several States and Territories which may provide colleges for the benefit of agricultural and mechanic arts," approved April 2, 1884 (23 Stat., 10).

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That an act entitled "An act to enable the people of Colorado to form a constitution and State government, and for the admission of the said State into the Union on an

3. In the absence of a decision by this Department that land in a school section is either mineral or non-mineral in character the State may proceed in one of three ways to have her rights and title defined, as follows:

(a) By applying to the Secretary of the Interior through the proper district office, where the land has been returned as non-mineral, for his certificate that the land was rightly so classed when the grant took effect. Such certificate will determine the matter" and establish the title of the State beyond attack by mineral claimants. Notice of such proceeding must be given by publication and posting, in the manner prescribed by the Rules of Practice.

(b) By proceeding to prove land which has been returned as mineral to be in fact non-mineral in the manner prescribed in Circulars "N" of September 23, 1880, and October 31, 1881.

(c) By relying upon the record for indemnity where lands have been entered as mineral. Where the State authorities have information that the mineral character of tracts in sections 16 and 36 is shown by evidence in this office, a list of them may be sent here, through the proper district office, to determine whether they may be used as bases for selections. If the decision should be in the negative, the character of such tracts may be determined under the procedure indicated in subdivisions a and b hereof.

4. Selections are restricted to lands returned as agricultural. The selected tracts must be connected with specific bases of not less than the quantity selected, and containing as near such quantity as practirable. Should the aggregate quantity of the bases in any list exceed that of the tracts selected the State will receive due credit upon adjustment of her grant. The character of selected tracts will be determined under the rules existing as to agricultural land entries. In all cases the selected tracts must be covered by non mineral affidavits made by the selecting agent of the State or an agent duly appointed by the State Board of Land Commissioners for the purpose, and in case of such appointment evidence thereof should accompany the affidavits.

5. In making selections on mineral bases the acts of 1875 and 1884 must be construed together. The law restricts selections to not more than one quarter section, and the tracts selected must be "as contiguous as may be" to the bases. As to such contiguity the rule is prescribed that vacant public land as near the basis as practicable shall be selected. Selections of land in a different district from that embrac ing the basis will not be admitted, unless it be clearly shown that there are no public lands in the district in which the basis is situated. The circular of the General Land Office of May 19, 1886, which allowed ap plications to be presented for lauds in a different land district from that embracing the bases, is hereby modified accordingly.

6. The date of the filing in the district land office of each application to select must be certified to by the district officers and the application

surveys, to the opposite corresponding corners, and the point of intersection of the lines so run will be the corner common to the several quarter-sections, or, in other words, the legal center of the section.

In the subdivision of fractional quarter-sections where no opposite corresponding corners have been or can be fixed, the subdivision lines. should be ascertained by running from the established corners due north, south, east or west lines, as the case may be, to the water-course, Indian boundary line, or other external boundary of such fractional section.

The law presupposes the section lines surveyed and marked in the field by the United States deputy surveyors to be due north and south or east and west lines, but in actual experience this is not always the case; hence, in order to carry out the spirit of the law, it will be necessary, in running the subdivisional lines through fractional sections, to adopt mean courses where the section lines are not due lines, or to run the subdivision line parallel to the section line when there is no opposite section line.

Upon the lines closing on the north and west boundaries of a township, the quarter-section corners are established by the United States deputy surveyors at precisely forty chains to the north or west of the last interior section corners, and the excess or deficiency in the measurement is thrown on the outer tier of lots, as per act of Congress approved May 10, 1800.

In the subdivision of quarter-sections the quarter-quarter corners are to be placed at points equidistant between the sections and quarter-section corners and between the quarter corners and the common center of the section, except on the last half mile of the lines closing on the north or west boundaries of a township, where they should be placed at twenty chains, proportionate measurement, to the north or west of the quarter-section corner.

The subdivision lines of fractional quarter sections should be run from points on the section lines intermediate between the section and quartersection corners due north, south, east, or west, to the lake, water-course, or reservation which render such tracts fractional.

When there are double sets of section corners on township and range lines, the quarter corners for the section south of the township lines and east of the range lines are not established in the field by the United States surveyors, but in subdividing such sections said quarter corners should be so placed as to suit the calculations of the areas of the quartersections adjoining the township boundaries as expressed upon the official plat, adopting proportionate measurements where the present measurements of the north or west boundaries of the sections differ from the original measurements.

By "proportionate measurement" as used in this circular is meant a measurement having the same ratio to that recorded in the original field notes as the length of chain used in the new measurement has to the