to the Northern Pacific Railroad company under the act of Congress approved July 2, 1864 (13 Stats., 365), and the joint resolution of May 31, 1870, (16 Stats., 378), and that the withdrawals for that purpose should be maintained, at least for the present.

of the adjustment of the grants, by which
settlers are kept in doubt for an indefinite
period, with ultimate loss to many, is too
plain for further remark.

The Secretary's decision being applicable to all withdrawals for indemnity purposes under railroad grants, you are diIn view of the probability that a large rected to refuse applications for lands proportion of the land in the indemnity thus withdrawn, except where the applilimits will be required to satisfy the sev-cant alleges settlement prior to the date eral grants in which indemnity is provided, of receipt of the order of withdrawal at the it is evident that a continuance of the local oflice. practice of allowing entries of such lands will result in detriment rather than benefit to settlers, many of whom would find that the lands entered by them were needed to make up the losses within the granted limits. In such an event the settler must either purchase the land at the price fixed by the company, or lose his improvements and the benefits of his labor. In the decision cited, the Secretary

says:

The intention of the legislature, as manifest in these land grant acts, must in good faith be carried out by the land department. At the same time the rights and interest of settlers must be regarded, and the policy of the country in respect to speedy settlement of the public lands, not unnecessarily restricted.

I cannot shut my eyes to the fact that vast areas of land (public but for the right of selection), lying within indemnity limits, are barred to settlement, and that the area of arable lands open to settlement is not great when compared with the increasing demand, and is rapidly diminishing.

It becomes the somewhat diflicult duty of your office and this Department to administer the laws relating to these grants and the public lands, and to the rights of settlers, in such manner as to preserve, as far as possible, the rights and interests of all parties.

It was clearly the intention of the legislature that within the indemnity limits fixed by the Northern Pacific acts, the company should have the opportunity to take lands acre for acre, for all those lost in place. ****

The work of ascertaining what lands in place have been lost to the company ought to go forward as rapidly as possible, and the company be enjoined to make selections in lieu of such lost lands without delay.

If the company neglects to make its selections, and takes advantage of the withdrawals heretofore made, or that may be made hereafter, to withhold lands within the indemnity limit from the operation of the settlement laws, not actually needed to make good losses they have sustained, it will be the duty of the Department to revoke such order of withdrawal.

L. HARRISON, Acting Commissioner.
DEPARTMENT OF THE INTERIOR, May 26, 1883.
Approved: H. M. TELLER, Secretary.

DESERT LANDS.

BLISS VS. SCHAMEL.

Definition.-To be desert land it must be shown
that irrigation as essential to produce any
crop upon the land in question.
SECRETARY TELLER to Commissioner Mc Far-
land, May 28, 1883.

The testimony shows that crops are
raised on adjoining and neighboring lands
of the same general character as those em-
braced in Bliss' entry without irrigation;
that although irrigation may increase the
productiveness of the soil, it is not essen-
tial to the production of some crop, and
is not shown to be in this particular case.
Concurring with you (as also with the
local officers) in the opinion that the
tracts in dispute are not desert land with-
in the meaning of the act, I aflirm your
decision.

INDIAN LANDS.
MALHEUR INDIAN RESERVATION, OREGON.
EXECUTIVE MANSION,
May 21, 1883.

act, and the legal rights of claimants and settlers took effect therefrom. Unless you are in possession of data, instructions or decisions, which in your judgment should modify this view, you are directed to act upon the same, and open the offices of the Surveyor General and Register and Receiver to the receipt of all legal applications for the lands in question.

LAND SCRIP.

GEN. HORATIO GATES' HEIRS. Revolutionary Bounty Land Scrip.-Review of the laws relating to the issue of this scrip to the officers and soldiers in the Virginia line on continental establishment. COMMISSIONER MCFARLAND to 0. S. X. Peck, New York City, May 10, 1883. (D. M. C.)

I have caused to be taken up for examination your application of 8th February last, addressed to the Hon. Secretary of the Interior, and referred to this Officewhere the subject matter properly belongs

for the issue of Revolutionary Bounty Land Scrip, under the provisions of the acts of Congress of August 31, 1852, and June 22, 1860-U. S. Statutes, Vol. 10, page 143; and Vol. 12, page 84-for 5,833 acres, founded on Virginia Military Land Warrant No. 9947, and issued by the Register of the Virginia State Land Office, on the 10th January, 1882, to

66

Algermon S. Sullivan, Public Administrator of the city of New York, and Administrator de bonis non with the will annexed of Mary Gates, widow and sole legatee of Major General Horatio Gates of the Virginia Line Revolutionary Army, in consideration of Major General Horatio Gates' services in the Virginia line from May 1776, to May 1783."

You state that the claim was "allowed "

It is hereby ordered that the Malheur under a certificate from the Commissioner Indian Reservation in the State of Oregon, of War of Virginia, of date May 30, 1783 except a tract of 320 acres, described in -a certified copy of which you file-in an Executive Order dated September 13, which it stated that "The Hon. Major 1882, as "the north half of the late military General Horatio Gates is entitled to the post reserve of Camp Harney, as estab-proportion of land allowed a Major Genlished by Excentive Order of December 5, eral of the Virginia line for military 1872," be and the same is hereby restored to the public domain, the same being no longer required for the purpose for which it was set apart.

Official Copy.

CHESTER A. ARTHUR.

R. V. BELT, Chief of Indian Division.

CROW RESERVATION, MONTANA.
Public Lands.-The lands within this reserva-
tion became public land at date of approval
of act of April 11, 1882.
SECRETARY TELLER to Commissioner McFar-
land, May 25, 1883.

I enclose herewith an application from Britton & Gray, attorneys for Thomas Sturgis et al., for the recognition of mining claims, locations and applications for The advantage to settlers in awaiting survey and patent upon the public lands the adjustment of claims of the railroad ceded by the Crow Indians, in Montana, companies for indemnity, and the restora- by agreement of June 12, 1880, ratified by tion to unconditional entry of the lands Congress, April 11, 1882 (22 Stat., 42). withdrawn but not needed for that pur- I am of opinion that the said lands, pose, over the practice of admitting en- being ceded by definite boundaries, became tries and holding them to await the result public lands at date of the approval of the

services, from May 1776 to this day; May 30, 1783, that warrants amounting to 17,500 acres were issued June 13, 1783, to said offcers in virtue of said allowance; and that the same were duly received, and have been fully satisfied.

You claim, however, that under the Bounty Land Laws of Virginia, the said amount of 17,500 acres was insufficient by 5,8334 acres, to legally satisfy the claim in question as allowed.

The general bounty land laws of Virginia are the following, viz:

1st. The act of the General Assembly thereof, October session 1779, Hening's Statutes at Large, Vol. 10, p. 160, which enacts in the 2d section thereof, "That the officers who shall have served in the Virginia line on continental establishment, or in the army or navy upon the State establishment, their heirs or legal representatives, shall respectively be entitled to and receive the proportion and quantities of land following; that is to say, every col

onel, five thousand acres; every lieutenant colonel, four thousand five hundred acres; every major, four thousand acres," and so on through all the grades of subordinate officers, non-commissioned officers and privates.

granted them. As no bounty lands had titled "A list of Officers of the Virginia before this act been granted for the ser- State Line and Navy, and of the Virginia vices of General officers, it is clearly man- Continental Line, who may be entitled to ifest that the additional bounty in lands additional Bounty Land for Revolution"did not include, and was not intended to ary Services." This Document of 44 apply to their services. It only had rela- pages, contains the names of some 274 2d. The act of October session, 1780- tion to those officers for whose service Officers. Among these four (4) Brigadier same Stats. and vol. as above, page 175-former bounty' had theretofore been Generals are named, but no reference is whereby, in section 4, it was enacted as granted, viz., the colonels, lient. colenels, made therein, nor in any other of said follows: "And whereas no provision has majors, etc., as provided in the act of Oct. Commissioner's Reports that they or any been made in land for the general officers 1779. That this was the evident intention | other "General Officers" were entitled to of this State in Continental service, there- of the legislature is manifest from the fact the one-third additional as claimed in the fore, Be it enacted, that there shall be that in the 5th section of the said act of present case. allowed to a Major-General fifteen thou- October, 1780, the following provision is Again, after the passage of the Scrip sand acres of land, and to a Brigadier- found: * * * "And as a testimony Act of August 31, 1852, and prior to any General ten thousand acres of land, to be of the high sense the General Assembly execution thereof, the then Secretary of reserved to them and their heirs in the of Virginia entertain of the important the Interior, Hon. A. H. H. Stuart, emsame manner and on the same conditions services rendered the United States by the ployed the Hon. S. S. Baxter, who had as is by law heretofore directed for the Honorable Major General Baron Steuben, been for sixteen years Attorney General officers and soldiers of the Virginia line on It is further enacted, That fifteen thou- of Virginia, to prepare for the use and incontinental establishment, and there shall sand acres of land be granted to the said struction of this Office, with the execution be moreover allowed to all officers of this Maj. Gen. Baron Steuben in like manner of which Act the same had been charged State on Continental or State establish- as is hereinbefore granted to other major by the Department, a Digest of all the ment, or to the legal representatives of generals." Military Bounty Land Laws of Virginia. such officers according to their respective with the extent and effect thereof, who ranks, an additional bounty in lands in the were entitled to the benefits thereof, with proportion of one-third of any former the legal construction of the same, etc., bounty heretofore granted them." etc.

*

Had the general assembly supposed that by the 4th section of the act in question, they had in fact granted 20,000 acres to major generals, they would have fixed the 3d. The act of May session, 1782, vol. said gratuity at that amount. But instead, Mr. Baxter's Report, consisting of 44 11, p. 84, sec. 9, Hening's Statutes, which the specific quantity of 15.000 acres was manuscript pages, was duly made and is provides "that any oflicer or soldier who appropriated, and for this a warrant was now on the files of this Oflice; but in no hath not been cashiered or suspended, and issued January 30, 1783, and for the inter-part thereof, though the said Act of 1780 who hath served the term of three years vening one hundred years no additional is cited, is any question raised or suggested successively, shall have an absolute and claim has been presented in the case. that the same granted anything beyond unconditional title to his respective appor- This view of the true intent and mean- the specific appropriations stated therein. tionment of the land appropriated as afore-ing of the said act of 1780, is also verified It is reasonable to presume that, if the said; and for every year which every and sustained by an examination of the question of the one-third additional as now officer or soldier may have continued, or military files and records of this office in presented, had been considered as having shall hereafter continue in service beyond any merit or as at all debatable it would the term of six years, to be computed not have escaped the attention of the genfrom the time he last went into service, he tlemen above named. shall be entitled to one-sixth part in addition to the quantity of land apportioned to his rank respectively."

connection with the satisfaction of Virginia military land claims; from which it is ascertained that since November 24, 1782, the date of the first issue of war- For the various reasons above given, I rants by Virginia for the services of a am compelled to decline the satisfaction general officer, Brigadier General Daniel of the warrant in question as requested. As you state in your application, and as Morgan, grants of land bounty have been But aside from the foregoing, I am of is also set forth in a letter from the Reg-made thereby for the services of seventeen the opinion that the commutation of said ister of the Virginia Land-office of the 4th (17) of such oflicers, five (5) of which warrant No. 9947 into Revolutionary ultimo, addressed to this office as showing were to those hoiding the rank of major Bounty Land Scrip is expressly prohibited the authority of law for the issue thereof, general, and twelve (12) that of brigadier by law, and this for the following reasons, the warrant in question was granted under general; and in no one of these have war-viz.: The Scrip Act of August 31, 1852, the provisions of the said law of October, rants been issued for the one-third addi-U. S. Stats. Vol. 10, page 143, enacts in 1780, and it is claimed that said act so far tional, except in the case in question. the 1st Sec. thereof, "That all unsatisfied relates to the land bounty due for the ser- This consistent uniform execution of outstanding Military Land Warrants or vices of "general officers" as to entitle the said Act of 1780, reaching back for a parts of Warrants issued or allowed prior them not only to the specific apportion- century, should have a decided and con- to the first day of March, eighteen hunments of 15,000 and 10,000 acres respec- trolling influence in the interpretation dred and fifty-two, by the proper authoritively as Major or Brigadier-Generals, but thereof, even if the same were at all am-ties of Virginia, for Military services peralso to an additional one-third part biguous. formed by the Officers and Soldiers, etc., thereof; and further, that under the said of the State and Continental Lines thereof" act of 1782 said officers were entitled to may be surrendered to the Secretary of the one-sixth of said original amount, and the Interior who, upon certain specified of the one-third part increased for all serconditions was authorized to issue Scrip vice over six years. in lieu thereof.

I also find from said examination that in 1832 and extending to 1835-36, under law of Virginia passed for such purpose, John H. Smith, Esq., described therein as 66 a competent person" was made a "comI am clearly of opinion that this con- missioner" to collect and arrange the On the 28th of June, 1858, it was held struction is wholly unauthorized, and that Revolutionary Documents of said State, by the Attorney General of the U. S., the grant of the one-third additional, as ex- and to report to the executive thereof, Hon. J. Black, in an opinion of that date pressed in the act of October, 1780, was among other things, any information he rendered at the request of the Secretary intended only for the benefit of such might discover relative to any unsatisfied of the Interior, that under the provisofficers for whose services provision of Revolutionary claims, etc. Said Com-ions of the said Scrip Act of 1852, land bounty had been previously made. missioner made several reports, which no Warrant issued by Virginia subseThe words of the statute are an additional have been published by the State and quent to the 1st of March, 1852, could be bounty in lands in the proportion of one- are in this Office. Among these is one legally satisfied in Scrip, no matter when third of any former bounty heretofore Doc. No. 6, of date Dec. 10, 1835, en- the claim therefor had been allowed. See

"Opinions of Attorney General," Vol. 9, page 352.

You have, of course, the right of appeal defeat the object of that law, as though from this decision to the Hon. Secretary the inhibition were in direct terms deof the Interior, to be made within sixty clared. (60) days from the receipt hereof.

JOHN H. MOORE.

Valentine Scrip-This scrip cannot be located
on lands within the claimed limits of a con-
firmed private land claim, but excluded from
such claim until the survey thereof has been
approved by the Land Department and the
excluded lands have been opened to settle-
ment and other disposal.

SECRETARY TELLER to Commissioner Mc Far-
land, May 17, 1883.

17, 18, 19 and 20, in Tp. 7 S., R. 1. E.,
San Francisco, California.

Pending, therefore, decision of the question whether or not the lands in question are public lands, which question depends upon final approval of a survey locating them within or without the pueblo lands, which has not yet been done; their present disposal is, under this ruling, prohibited by law.

Moore was premature and unauthorized. When their status becomes definitely fixed by an approved survey, they will be, if public lands, for disposal to the first legal applicant, as in other cases.

Your decision is affirmed. [NOTE. This decision has been suspended for further consideration.-EDITOR.].

CHANDLER VS. VILLAGE Sault Ste. MARIE. Porterfield Scrip.-A reservation made on appli cation of the War Department must give way to a prior Porterfield Scrip application made at a time when the land in question was "public land surveyed and not otherwise appropriated."

SECRETARY TELLER to Commissioner McFarland, June 8, 1883.

In order to obviate this objection, Congress on the 22d of June, 1860, passed a Declaratory Law, enacting, That the Secretary of the Interior, in executing the provisions of the Act passed August thirty-one, eighteen hundred and fifty-two, entitled "An Act making further provision for the satisfaction of Virginia Land Warrants" be required so to construe the same as to authorize the satisfaction in As the tracts involved were included Scrip of all warrants or parts of warrants in the original survey of the pueblo lands issued on allowances made by the Execu of San Jose, and are also included, as tive of Virginia prior to the first day of I have considered the appeal of John such, in the amended survey of Deputy March, eighteen hundred and fifty-two, H. Moore from your decision of October Surveyor Herrman, and so far as execu coming within the principles already 4, 1881, holding for cancellation certain tive action goes, constitute a portion of recognized by the Department of the In- locations of Valentine scrip made by him the said pueblo lands, the location by terior in the execution of the provisions in January, 1879, upon lands in sections of said Act, and whether issued before or since the first day of March, eighteen hundred and fifty-two: Provided, however, Valentine scrip locations are authorized That no Warrant or part of a Warrant by the act of April 5, 1872 (17 Stat, 649), shall be satisfied in Scrip founded or is upon unoccupied and unappropriated sued on any allowance made by the Ex- public lands of the United States," and ecutive of Virginia since the 1st day of the question involved is whether the lands March, eighteen hundred and fifty-two." located were upon the public lands, or See U. S. Stats., Vol. 12, page 84. As no whether they are a part of the pueblo claim presenting the principles of the one lands of San Jose. Public lands are those in question was ever before submitted for subject to sale or other disposal under the determination of this Office under general laws (Newhall es. Sanger, 2 Otto, said Act of 1852, and prior to that of 763, 3 LAND OWNER, 39); and it is well June 22, 1860, the present application be settled that lands within the claimed limits ing the first and only one of its kind, and of a confirmed Mexican grant are in a as the warrant in question was issued state of reservation, until the grant has subsequent to March 1, 1852, and does been surveyed, and the survey has been not come within the principles recog-approved by the Land Department of the nized by the Department in the settlement government. They are excluded from of the Virginia claims for Scrip under Act settlement so long as the claims of the of August 31, 1852, for the reasons above grantees remain undetermined by the tristated, the same cannot be legally satisfied bunal or officers of the United States as I hold. (Van Reynegan vs. Bolton, 5 Otto, 33, 4 LAND OWNER, 37). Prior to approval of such survey, therefore, lands within the claimed limits of such grant are not public lands, and no application for their disposal can be properly entertained. It appears from the files of your office that the lands in question were included in a survey of said pueblo made by United States Surveyor Thompson in 1866; that in April, 1868, your office instructed the I agree with you in the general scope Surveyor General of California to exclude of the decisions referred to, but must from said survey certain named tracts, hold the same as inapplicable to the case because outside the original pueblo boundin question, for the reason that, as I think, aries as confirmed; but that on July 3, the said claim was fully and legally satis- 1880, he was further instructed that lands fied nearly a century since, that the pres-in sections 17, 18, 19 and 20-now in conent warrant was issued without any troversy-were not affected by the decision authority of law, and at its commuta- of 1868, thus leaving the Thompson survey tion into Scrip is legally prohibited. in respect to said lands in force. On DeI have given no consideration as to the cember 16, 1880, this department disquestion of the present proprietorship of missed the appeal of Moore from your said warrant, No. 9947, as this has not ruling of July 3d, whereby it became been deemed necessary in view of the final. controlling objections to the claim itself,

You add to your presentation of the case a legal argument in support thereof, citing numerous opinions of the U. S. Supreme Court, etc., to the effect that the decisions of State Courts and other tribunals authorized to hear and determine matters arising under the laws of the same should be recognized and respected by appellate jurisdiction or other revising authorities.

In Shepley vs Cowan (1 Otto, 336) the the merits of which I have endeavored court said: "Whenever in the disposition fairly and justly to consider and deter- of the public lands any action is required mine, not only on account of the large in- to be taken by an officer of the Land Deterest involved, but as undoubtedly affect-partment, all proceedings tending to deing many thousands of acres in other feat such action are impliedly inhibited. cases of General Officers of the Virginia*** A sale is as much prohibited by a Revolutionary Line. law of Congress, when to allow it would

On the 31st day of January last, I decided the case of William Chandler vs. The Village of Sault Ste. Marie, and communicated my decision to you by letter of that date.

On the first of February last a motion was made for a rehearing, alleging several grounds therefor; among others that the land in question is, and at the date of the Porterfield Scrip location was, in fact, unappropriated and in a state of nature.

The evidence before me at the time of my said letter showed that the tract in question was "occupied by some fifteen or twenty families of Indians of the Ottawa and Chippewa Bands, and that it had been so occupied by Indians from time immemorial" and I so found as a question of fact in my said decision. Such evidence was found in the statement of Indian Agent Lee, contained in the record. This statement proved the fact prima facie, and as no issue had been made upon that question there was no contradictory evidence. At such rehearing, however, a large number of affidavits made by persons of standing and character and who have been long acquainted with the tract were filed in the case. These affidavits clearly show that the land is, and for a long time has been, unoccupied, wild and unimproved, covered with bushes, large boulders, and in a state of nature. The tract in fact occupied by said Indians is proven to be distinct and separate from the one in controversy, being situated lower down the river at the foot of the rapids, as shown upon the plat hereafter referred to.

of the act of September 26, 1850, aforesaid, it had not been released, and there- THE LARGE AMOUNT OF CAPITAL INVESTED. fore that act can not be construed to em- THE PROBLEM OF CHEAP FLATS." brace it. (Wilcox vs. Jackson, 13 Pet., The introduction of "flats buildings" 498). When released by the treaty of Au- in this city has attracted considerable atgust 2, 1855, aforesaid, it became public tention not only from capitalists, but also land, and was not subject to sale under the provisions of said act of September 26, 1850. (Railroad vs. United States, 92 U. S., 733).

troversy, as now proven, renders it be improvements, especially in this city, yond question subject to location by Por-where land is comparatively cheap. It seems to be the general opinion among terfield scrip.. I do not, therefore, conreal estate men that this outlay of capsider it necessary or proper at this time to ital will prove highly remunerative, and decide the question discussed at length the projectors themselves say that there at the re-hearing, whether such scrip can will be no difficulty in renting the apart