TOWNSITE ENTRY-MINERAL LAND-SECTION 2389, REVISED STATUTES.

TELLURIDE ADDITIONAL TOWNSITE.

Under the provisions of section 16 of the act of March 3, 1891, a townsite entry by an incorporated town may be made upon mineral lands of the United States, subject to the limitations and conditions prescribed, and therefore such an entry, upon surveyed lands, even though the lands be mineral, should, in its exterior limits, be made in conformity to legal subdivisions, as required by section 2389 of the Revised Statutes.

Secretary Hitchcock to the Commissioner of the General Land Office. (F. L. C.)

May 6, 1905.

(G. N.B.)

December 29, 1899, W. A. Taylor, mayor of the town of Telluride, Colorado, made additional townsite entry, under the provisions of the act of March 3, 1877 (19 Stat., 392), for a ten-acre tract of ground embracing portions of lots 7 and 8 in the S. 3 of the SE. of Sec. 36, T. 43 N., R. 9 W., N. M. P. M., Montrose, Colorado, land district. April 22, 1903, your office held the entry for cancellation, for the reason, among others, that the ground claimed as an additional townsite, in its exterior limits, does not conform to the legal subdivisions of the public-land surveys.

June 22, 1903, the claimant asked leave to submit additional proof to show, among other things, that the portions of said lots 7 and 8 not embraced in the entry are mineral lands. Leave was accordingly granted, and an additional showing was made by means of affidavits, in which it is alleged, in substance and effect, that the ten-acre tract selected is non-mineral in character; that on the west the same is bounded by the Mill placer claim; that on the north it is bounded by high and perpendicular cliffs of solid rock, above which the ground embraced in said lots 7 and 8 is mineral in character; that on the east the adjoining lands contain valuable placer deposits; that on the south the land not included in the original patented townsite is covered by the Yosemite placer mining claim; and that the townsite can not be made to conform to said lots 7 and 8 without embracing lands chiefly valuable for mineral.

February 26, 1904, your office held the showing insufficient to sustain the townsite entry, and held the same for cancellation. Subsequently the claimant asked for additional time in which to make explorations and furnish evidence with respect to the mineral character of the land surrounding the tract entered. April 28, 1904. your office directed the local officers to advise the claimant

that no extension of time in which to perfect an appeal under the decision heretofore rendered will be granted, but that in default thereof, in view of the statements now made by claimant, final action looking to the cancellation of the entry involved will be deferred sixty days within which further showing may be

made on the merits as contemplated, but that in default thereof the entry will be finally canceled on the record in pursuance of the judgment already rendered.

The claimant has appealed to the Department.

The contention on appeal is, that the lands immediately surrounding the tract are mineral in character, and therefore entry to include such lands can not be made under the townsite law.

Section 2389 of the Revised Statutes, treating of townsite entries, provides that:

If upon surveyed lands, the entry shall in its exterior limit be made in conformity to the legal subdivisions of the public lands authorized by law.

See regulations of the land department regarding townsites (5) L. D., 265, 267; 32 L. D., 156).

The township and section, embracing said lots 7 and 8, were surveyed in 1882, and the plat thereof was filed in the local office January 25, 1883. The ten-acre tract in question embraces eighty-eight one-hundredths of an acre of lot 7, which contains twenty-eight acres, and the remainder consists of a portion of the west side of lot 8, which contains thirty-five acres. No attempt has been made to conform the limits of the townsite to the lines of these lots, or either of them.

Section 16 of the act of March 3, 1891 (26 Stat., 1095, 1101), provides:

That townsite entries may be made by incorporated towns and cities on the mineral lands of the United States, but no title shall be acquired by such towns or cities to any vein of gold, silver, cinnabar, copper or lead, or to any valid mining claim or possession held under existing law.

The entry in question can not be sustained in its present form. The statutory requirement as to conformity to the legal subdivisions of the public lands is clear and explicit. The land department can not disregard it. Where, as in this case, the entry is upon surveyed lands, the mandate of the statute is that, in its exterior limits, it shall be made in conformity to the legal subdivisions of the public lands authorized by law.

If it be true, as claimed, that the portions of said lots 7 and 8, not included in the townsite entry, are mineral in character, that fact can furnish no excuse for not conforming the entry, in its exterior limits, to legal subdivisions, as required by law. Telluride is an incorporated town, and under section 16 of the act of March 3, 1891, is authorized to make townsite entry on mineral lands of the United States, the title, when acquired, to be subject to the conditions and limitations prescribed in that act. There is therefore no reason why the townsite application in this case may not be made to embrace either of said lots 7 and 8. or both of them, as should be determined

by the claimant. They are legal subdivisions of the public lands, notwithstanding the fact they are designated as lots.

It is not intended to hold, however, that the townsite claimant may not exclude from his application any vein of gold, silver, cinnabar, copper, or lead, or any valid mining claim or possession held under existing law, which may as a matter of fact be embraced within said lots, or either of them, as the case may be, and as to which no title would pass under the townsite patent when issued. Should any such exclusion be made, satisfactory proof in support thereof should be furnished. If a mineral vein be excluded, its existence must be shown. If the exclusion be of a mining claim or possession, it must be shown to be a valid mining claim or possession held under existing law.

Unless the townsite claimant shall, within a reasonable time, so amend his application that entry may be allowed thereon to conform to the legal subdivisions of the public lands, in accordance with the principles herein announced, the existing entry must be canceled. The decision of your office is modified accordingly.

VALENTINE SCRIP-ASSIGNMENT-INNOCENT PURCHASER.

MARVIN HUGHITT.

Land warrants are not commercial or negotiable paper, and the doctrine applying to innocent holders of commercial paper acquired before maturity has no application thereto; and an assignee of such warrants can acquire no greater interest as against the government than belonged to the warrantee.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) May 8, 1905.

(E. F. B.)

With your letter of March 8, 1905, you transmit the appeal of Marvin Hughitt from the decision of your office of January 4, 1904. refusing his application for a recertification, in his name, of what is alleged to be the unused portion of Valentine Scrip E, No. 23, amounting to 19 acres, which was assigned to him by Lucy J. Simmons, executrix of Charles E. Simmons.

It appears from the papers transmitted with your letter that " Valentine Scrip E. No. 23," for forty acres, was located July 31, 1874, by Wm. L. Webber, trustee, at the Ionia land office, Michigan, upon unsurveyed lands, who at the same time tendered to the local officers said scrip, which was received by them to be applied in payment for said land after the survey thereof and after the location had been made to conform to the legal subdivisions as required by law. In due time (August 13. 1874), the register reported to your the filing by Webber of his application and the deposit of the scrip.

office

After said location had been made, and while the scrip, which had been assigned in blank by the scrippee, Valentine, was in the custody of the local officers, it was abstracted by a clerk in that office, and sold to one D. H. Talbot. It subsequently came into possession of Charles E. Simmons by assignment, who, on May 26, 1880, located it at Sioux Falls, Dakota Territory, on a tract of land containing 21 acres, upon which patent issued.

The land upon which Webber had located this scrip was not surveyed until 1883. On March 4, 1884. Webber applied to adjust his entry in conformity with the township surveys, which was found to embrace lots 5 and 6, section 26. T. 18 N.. R. 18 W., which at that time was subject to sale at the Reed City, Michigan, land office, containing 40.57 acres. The local officers certified upon that application that "Valentine Scrip E No. 23 as shown by the records of this office was filed at the Ionia land office July 31, 1874, upon a tract of unsurveyed land which when officially surveyed embraced lots 5 and 6 of Sec. 26, T. 18 N., R. 18 W., containing 40.57 acres."

It being found upon inquiry that the scrip was not in the local land office, the register reported all the facts to the Commissioner of the General Land Office, who, by letter of May 23, 1884, stated that it having been established that Webber deposited the scrip in the land office at Ionia for the location of said land, which was abstracted by a clerk in that office while in the custody of the local officers, the United States is responsible for the loss of the scrip, and that so far as concerns Mr. Webber's right to receive a certificate of location he stands in the same relation to the government as if the scrip had not been abstracted and otherwise used. The local officers were directed to adjust the location according to the regulations and to issue the usual certificate, which was done June 24, 1884, cash payment being made for the excess fifty-seven hundredths of an acre. Upon this certificate a patent issued September 3, 1884, which recited that "the said special certificate after having been thus located by the said William L. Webber, trustee, was stolen from the files of the local land office and assigned to another party and was by said party relocated at Mitchell, Dakota Territory, and a patent issued therefor." The case now before the Department arose upon the application of appellant for recertification to him of the unused portion of the scrip located by Charles E. Simmons, amounting to 19 acres, claiming the right to such portion by purchase and assignment from Lucy J. Simmons, executrix, under the last will and testament of the said Charles E. Simmons. Your office rejected the application for the reason that the scrip had been fully satisfied by the location made by Webber. The appellant rests his claim upon the validity of the location of

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Simmons. His contention may be substantially embodied in two grounds, (1) that if he, Simmons, was entitled to any portion of or interest in the scrip he was entitled to it all, and (2) that the question as to the validity of his location and of his ownership of the scrip was adjudicated by the Commissioner of the General Land Office in his decision of May 23, 1884, the effect of which was to hold that Simmons was an innocent purchaser, and to justify an innocent purchaser from him in assuming that Simmons had a good title to the unused portion of the scrip.

The first proposition may not be questioned, but it is very evident from the facts recited above that Simmons was never entitled to any part of the scrip and did not acquire any right, title or interest in it cither as against the United States or the true owner, whether he was an innocent purchaser or not.

The consummation of an entry under a location of the stolen scrip confirmed no right in the locator to the scrip, either as to the part located or the unused portion. While the title to the land located is now protected by lapse of time, it is certain the entry would not have been allowed if the conditions under which Simmons acquired the scrip had been known at the time of the entry or before it passed to patent, even though he acquired it without notice of want of title in his vendor.

The clerk who stole the scrip could assign no valid right or interest in it to Talbot, nor could Simmons acquire any such right under his assignment from Talbot, however innocent he may have been of any knowledge of the source from which Talbot acquired it. These warrants are not commercial or negotiable instruments, and the doctrine applying to innocent holders of commercial paper acquired before maturity does not apply to them. The assignee of these warrants can acquire no greater interest as against the government than the warrantee. Bronson v. Kukuk (3 Dillon, 490.)

Appellant's second position is equally untenable. The decision of May 23, 1884, which he contends was an adjudication of the right of Simmons to the scrip as an innocent purchaser, and his consequent right to locate it, was rendered upon the application of Webber to complete his location of the scrip initiated in 1874, when the scrip was surrendered to the government. No right of Simmons was involved, nor did the Commissioner pretend to pass upon the validity of the assignment or of the location by Simmons thereunder. He was considering the right of Webber, the true owner, who had surrendered it into the custody of the government in due course of proper proceedings in the location, after which it was stolen from the government. Under such circumstances the Commissioner held that Webber's right to complete his entry was not affected, as the