MILITARY RESERVATION-FORT ABRAHAM LINCOLN-ACT OF APRIL 23, 1904.

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., June 9, 1904.

Register and Receiver, Bismarck, North Dakota.

GENTLEMEN: Your attention is invited to section three of the act of April 23, 1904 (33 Stat., 306), entitled "An act to amend an act entitled 'An act to provide for the opening of certain abandoned military reservations, and for other purposes', approved August twenty-third, eighteen hundred and ninety-four," which provides

That all persons now having, or who may hereafter file, homestead applications upon any of the lands situate within the abandoned Fort Abraham Lincoln Military Reservation, in Morton County, State of North Dakota, shall be entitled to a patent to the land filed upon by such person upon compliance with the provisions of the homestead law of the United States and proper proof thereof, and shall not be required to pay the appraised values of such lands in addition to such compliance with the said homestead law.

In view of the above law, you will in all cases where entrymen in the reservation mentioned, have not already paid the appraised price, permit them to make final proof under section 2291, Revised Statutes, on payment of the usual fee and commissions on double minimum lands; these lands being within the forty-mile limit of the grant to the Northern Pacific railway.

In case of commutation under section 2301, Revised Statutes, a pay-. ment of $2.50 per acre must be made.

Very respectfully,

Approved:

E. A. HITCHCOCK, Secretary.

J. H. FIMPLE, Acting Commissioner.

SWAMP GRANT-ADJUSTMENT-SETTLEMENT CLAIM.

STATE OF MINNESOTA . LINDEBERG.

In order to bring a case within the exception named in paragraph one of the departmental regulations of March 16, 1903, providing for the adjustment of the swamp land grant in the State of Minnesota, it is necessary to show that it involves an actual bona fide settlement claim, which can not be done without proof of residence actually begun upon the land.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) June 10, 1904. (F. W. C.) The Department has considered the appeal by the State of Minnesota from your office decision of December 18 last, wherein it was held that the contest between the State of Minnesota and Johan August

Lindeberg, involving lots 2 and 3 of Sec. 31, T. 57 N., R. 8 W., 4th P. M., Duluth land district. Minnesota, should be disposed of under rule 1 announced in departmental decision of March 16, 1903 (32 L. D., 65), providing for the adjustment of the swamp land grant in the State of Minnesota, and, adjudicating the case upon the record made. finding that the lots in question were excepted from the State's grant. Upon consideration of the protest by the State of Minnesota against the manner of disposing of contests involving lands claimed under the swamp land grant, this Department on January 14, 1902, directed your office to suspend all proceedings looking to the determination of the character of lands claimed by the State under the swamp land grant of March 12, 1860 (12 Stat., 3), otherwise than by an examination of the field notes of survey, until the Department had considered and given final determination to questions involved in the further adjustment of the swamp land grant to that State.

After full and thorough consideration of the matter, the departmental decision of March 16, 1903, supra, was rendered, in which certain rules were laid down for the adjustment of controversies affecting the swampy or non-swampy character of lands within the State of Minnesota claimed under the swamp land grant.

By rule 1 it was provided

That all existing contests or controversies between the State and an actual and bona fide homestead or preemption settler, whether the settlement was made before or after the survey, be disposed of under the rule announced in the Lachance decision, that being the rule under which the settlement was effected and the contest or controversy begun.

The facts with regard to the contest and claim of the State under the swamp land grant, affecting the tract here in question, are as follows:

The plat of survey of the township in question was filed in the local land office February 18, 1903, and upon the field notes of survey the surveyor-general certified the lots here in question to be swamp and overflowed lands passing to the State under the swamp land grant. Upon the following day Lindeberg tendered at the local land office his homestead application covering lots 2 and 3 here in question, and in addition thereto the NE. 4 of SW. 4 and NW. 4 of SE. 4 of the same section, and in his homestead affidavit alleged that "I settled upon said tract of land July 25, 1902, and have the following improvements: a log house and one-half acre cleared." Because of the suspension of January 14, 1902, before referred to, no action was taken upon Lindeberg's homestead application, because of the conflict with the State's claim as to lots 2 and 3, until the promulgation of departmental decision of March 16, 1903, supra, and the issuance of circular letter thereunder by your office, dated April 4, 1903 (32 L. D., 88). Because of Lindeberg's allegation of settlement and improvements upon the land the local officers on April 30, 1903, issued notice for a hearing between Linde

berg and the State. This hearing was duly held and upon the record made the local officers made the following finding with regard to Lindeberg's settlement and improvements upon the tract in question:

We find that he visited this land when it was in its unsurveyed condition on the 26th of July, 1902. He looked over the land and went to his home at Two Harbors without doing anything whatever and yet in his homestead application he alleges that at that time he effected a settlement. He did not return to this land until January, 1903, when he was there a day and a half. Between his two visits, he had caused to be constructed a cabin on the land with a bark roof, but he never inhabited said cabin unless he slept there one night in January, 1903. During all the time from his first visit to the land until some time in May, 1903, he slept on the land one night. Can it be said that when he applied, or on April 4, 1903, he had a bona fide settlement on this land? We cannot so find; it seems to us that these two casual visits could not constitute the establishment of a residence or, in the language of the circular, a bona fide residence on the land in controversy. The operations of the contestant in May and June, 1903, when he claims to have been some two weeks on the land and to have built a cabin, and then returned to his employment at Two Harbors, are not so closely connected with his prior operations as to make such prior operations a sufficient indication of settlement. The times are too widely separated.

We conclude, therefore, that the defendant on April 4, 1903, did not have a bona file settlement on this land, and was not a settler thereon in good faith. In view of this finding, his showing by oral testimony that in fact the land is not swamp-land becomes wholly immaterial and the oral evidence is incompetent because, under the circular, the State's claim to the land can be attacked by persons who have no settlement only by evidence of the field notes of survey showing that the land is not swamp.

It appears that notice of said decision was given counsel for Lindeberg, personally, on September 14, 1903. On September 29, 1903, Lindeberg filed a relinquishment of all his right, title and interest under his homestead application tendered on February 19, 1903, as to the NE. of SW. and NW. of SE. of said section 31, stating in said relinquishment that he elected to retain his homestead application as to lots 2 and 3 of section 31, the tracts here in question.

This is the only paper filed on behalf of Lindeberg prior to your office decision, and can not be considered as an appeal from the decision of the local officers. Therefore, under rule 48 of practice, the decision of the local officers must be considered final as to the facts found by them and their decision will be disturbed only as follows: First, where fraud or gross irregularity is suggested on face of papers; second, where the decision is contrary to existing laws or regulations; third, in event of disagreeing decisions by the local officers; and fourth, where it is not shown that the party against whom the decision was rendered was duly notified of the decision and of his right of appeal. In considering this case your office decision appealed from reviewed and reversed the decision of the local officers because it was held that said decision was contrary to existing laws or regulations, the local officers having construed the term settlement, as used in paragraph 1 of the regulations before referred to, as being synonymous with the term residence, and without disturbing the finding of the local officers

as to the acts performed by Lindeberg with regard to this land, concluded that those facts clearly establish a settlement claim to this land prior to the circular of April 4, 1903.

In the appeal by the State it is urged that this is not an existing contest or controversy within the meaning of those terms as used in paragraph 1 of the regulations issued by this Department governing the adjustment of the swamp land grant to the State of Minnesota, because the contest was begun during the period of suspension ordered January 14, 1902.

Upon this branch of the case attention is invited to the circular of March 12, 1904 (32 L. D., 499), which is as follows:

For the protection of bona fide settlers, who allege settlement prior to the issuance of Minnesota swamp land circular, dated April 4, 1903 (32 L. D., 88), direction numbered (1), page 6, of the said circular (32 L. D., 70), may be so construed as to class such cases among existing controversies between the State and an actual and bond fide homestead settler; provided such settler, within ninety days after the filing of the plat, made proper homestead application for the land involved, accompanied with proper swamp land affidavit, respecting such of the tracts involved as the plats show to be swamp.

It is clear therefore that if Lindeberg is shown by the facts found by the local officers in their decision rendered in this case, to have been an actual bona fide homestead settler upon this land prior to the issuance of the circular of April 4, 1903, supra, he is entitled to the protection afforded by paragraph 1 of said circular.

While it is true that this Department has, in the disposition of conflicting claims to public lands, recognized settlement rights in advance of residence, yet where proof of settlement has been required in establishing a claim to public lands, this Department has uniformly construed the term settlement as the equivalent of residence. See decision in case of Anna Bowes and cases therein cited (32 L. D., 331, 338). In order to bring a case within the exception named in paragraph one of the regulations under consideration, it is necessary to show that it involves an actual bona fide settlement claim, and there can be no such claim without proof of residence actually begun upon the land. It is the opinion of this Department therefore that the local officers correctly construed the regulations and made proper disposition of the case upon the facts found and their decision must be and is hereby affirmed, and your office decision is set aside and reversed.

MINING CLAIM-LOCATION-INVALID ENTRY.

ADAMS ET AL. . POLGLASE ET AL. (ON REVIEW).

A location under the mining laws made upon land not at the time regularly subject thereto, because covered by a subsisting though invalid mineral entry, may nevertheless, if maintained in good faith, and the land subsequently becomes subject to such location, be permitted to remain intact, as having attached on such date, if at that time there be no adverse claim.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) June 11, 1904. (G. J. H.) The Department is in receipt of a motion, filed on behalf of Adams. et al., for review of its decision of March 5, 1904 (32 L. D., 477), in the above entitled case, dismissing the protest of Adams et al. against the application of Polglase et al. for patent to the Ramsdell lode mining claim, Helena land district, Montana.

The contention of the protestants, as stated in the decision sought to be reviewed, was, in substance

that the location upon which the Ramsdell application is based is absolutely void because made upon land at that time segregated from the public domain by the thensubsisting Maud S. entry.

In the course of its decision the Department said:

It may be conceded. . . . that while the Maud S. entry stood uncanceled of record, the lands covered thereby were not properly subject to location. But when that entry was canceled the lands from such date became subject to location, and the prior location by the Ramsdell lode claimants became from such time effective, if rights thereunder were then being, and were thereafter asserted according to the mining law. On this question there does not seem to be any doubt. See Noonan . The Caledonia Gold Mining Company (121 U. S., 393).

It is urged in support of the motion for review, among other things, in substance and effect, that it was error to cite the case of Noonan v. Caledonia Gold Mining Company, supra, as authority for the holding above quoted, in view of the later decision of the supreme court of the United States in the case of Kendall v. San Juan Mining Company (144 U. S., 658), citing and explaining the Noonan decision, for the reason that the Ramsdell lode claimants did not make a new location or re-record notice of their old location after the cancellation of the Maud S. entry and prior to the location made by protestants.

Both the Noonan and the Kendall case, supra, involved mining loca tions made upon lands embraced within Indian reservations, and at such time not subject to the mining laws, which subsequently, upon extinguishment of the Indian reservations, became subject to the operation of said laws. The land here involved was not embraced within any Indian reservation, but was public land of the United States subject to the mining laws, although at the time the location in question was made covered by an invalid mineral entry. The Noonan case was cited in the decision sought to be reviewed only for the reason that the holding therein is in line with the long-established ruling of the Department, in cases similar to the present one, to the effect that mining locations or entries under the public land laws, made upon lands not at the time regularly subject thereto, may nevertheless, if maintained in good faith, and the land subsequently becomes subject to such location or entry, be permitted to remain intact, as having attached on such date, if at that time there be no adverse claim. (See