RELINQUISHMENT-HOMESTEAD ENTRY-NONCONTIGUOUS TRACTS—

EQUITABLE ADJUDICATION.

GEORGE H. PLOWMAN.

The relinquishment of part of a homestead entry, which would render the remaining tracts noncontiguous, should not be accepted.

Where, however, such a relinquishment was accepted, and the entryman upon faith of such action complies with the law and submits proof with respect to the remaining noncontiguous tracts, the entry may be submitted to the Board of Equitable Adjudication with a view to confirmation.

First Assistant Secretary Pierce to the Commissioner of the General (F. W. C.) Land Office, February 1, 1910. (S. W. W.)

This is the appeal of George H. Plowman from your office decision of September 17, 1909, holding that his homestead entry, hereinafter described, may not be submitted to the Board of Equitable Adjudication.

It appears that on January 2, 1906, Plowman made homestead entry, No. 28685, for the E. of NE. 1, SW. 1 NE. and NE. Į SE. 1, 1 Sec. 19, T. 22 N., R. 21 W., Woodward, Oklahoma, land district; that on December 21, following, his entry was canceled as to the E. of NE. 4, upon his relinquishment, and on the same day that land was entered by Mary A. Wood; that final proof was submitted by Plowman for the NE. SE. and SW. NE. 4, the two tracts remaining in his entry, upon which final certificate No. 69190 was issued May 1,

1908.

It further appears that by your office letter "C" of October 24, 1908, the local office was directed to advise Plowman of the condition of his entry, and that he would be required to show cause why his entry should not be canceled, or to elect which of the forty-acre tracts he would relinquish, and that in the event of his failure to take action within the time specified, his entry would be canceled. Plowman appealed to the Department, where it was decided, under date of June 4, 1909, that the action of your office was correct, but inasmuch as patent may issue under certain conditions for noncontiguous tracts (B. F. Bynum et al., 23 L. D., 389, and Akin v. Brown, 15 L. D., 119), it was held that further time should be allowed Plowman to comply with the requirements of your office to show cause why his entry should not be canceled.

In an affidavit submitted in accordance with the said requirement, Plowman alleges that about the month of December, 1906, he was financially distressed and was offered three hundred dollars to relinquish the E. of NE. 1 of the land entered by him; that before doing so he consulted with several reliable persons as to whether or not he could properly relinquish that particular portion of his entry and at the same time make proof and secure patent for the remaining

tracts which were rendered noncontiguous by reason of the elimination of the E. of NE. 4, and he was told that he could do so; that he is an old man and resided faithfully upon the land, which constituted his only home, and is still residing there; that he has complied with the law as best he could and prays that the case be referred to the Board of Equitable Adjudication for relief.

From the decision of your office denying this prayer Plowman has appealed to the Department.

It is well established that the homestead law as construed by the Department requires that homestead entries may not properly embrace noncontiguous tracts, and that tracts which only corner upon each other are not contiguous and do not form parts of one body of land. This being so, it would seem to follow that the action of the local office and of your office also, in accepting Plowman's relinquishment of such a portion of the land entered by him as left the remaining tracts noncontiguous, was improper. Not only does it appear that he was allowed to relinquish his entry in this manner, but it is further shown that he was permitted to make final proof in support of his entry as reduced, upon which final certificate was issued to him.

This case does not fall entirely within the rule laid down by the Department in the cases cited. It is apparent, however, that Plowman was advised by those with whom he consulted that he might properly take such action, and he was even permitted to do so by the register and receiver.

By section 2450 of the Revised Statutes, as amended, the Commissioner of the General Land Office is authorized to decide, upon principles of equity and justice, as recognized in courts of equity, and in accordance with regulations to be settled by the Secretary of the Interior, the Attorney-General, and the Commissioner of the General Land Office conjointly, consistent with such principles, all cases of suspended entries of public lands. Under this authority of law regulations have been issued providing for the equitable adjudication of entries made under the public land laws. These regulations were issued originally prior to the enactment of the homestead law and at a time when preemption entries constituted by far the greater number of entries which required action of the nature indicated, hence the first rules issued relate chiefly to preemptions. Rule ten provides (General Circular, page 246):

Preemption entries founded upon a bona fide right of preemption, where, as it respects the mode and manner of the entry, there is not a strict conformity with the law, but where such entry does not embrace a quantity exceeding that allowed by law, is in accordance with the wish of the party or parties interested and does not interfere with the rights or interests of another.

It is believed that if this were a preemption entry it could, in the absence of other objection. be patented under the provisions of the

rule above quoted, and inasmuch as the rule relating to the contiguity or compactness of tracts entered under the preemption law is also applicable to tracts entered under the homestead law, there seems to be no reason why rule ten of the regulations may not be applied with equal force to a homestead entry.

As originally located, this entry formed one body of land consisting of contiguous tracts, and the requirement of the homestead law in that regard was therefore fully met. The entryman was subsequently permitted, in disregard of the rule obtaining, to relinquish a portion of his entry and to submit final proof upon the tracts not relinquished. Under these circumstances it is believed that his case should be submitted to the Board of Equitable Adjudication with favorable recommendation, provided it is found upon examination of his proof that he has in all other respects made a substantial compliance with the homestead law.

Your office decision is modified accordingly.

OKLAHOMA LANDS-RAILROAD RIGHTS OF WAY-ANNUAL FRANCHISE TAX.

INSTRUCTIONS.

The annual payment of fifteen dollars per mile of road, required by various acts of Congress granting rights of way to railroad companies through the Indian Territory, is not in the nature of compensation, nor a property tax upon the land involved, but is in the nature of a franchise tax or charge upon the business of the corporation constructing the road; and is in no wise affected by the departmental regulation fixing November 1, 1908. as the date prior to which railroad companies might acquire title to the land occupied by them for rights of way, etc. 'After the State of Oklahoma was admitted into the Union, November 16, 1907, the Indians, as tribes or nations, ceased to own and occupy the lands in the sense in which that expression is used in the acts of Congress fixing the fifteen-dollar charge, and thereafter such charge could not lawfully be exacted. However, the payment for the year ending June 30, 1908, being payable in advance, must be paid in full.

First Assistant Secretary Pierce to the Commissioner of Indian Affairs, (F. W. C.) February 2, 1910. (S. W. W.)

The laws under which rights of way were granted to railroad companies in the former Indian Territory contain, substantially, the following provision:

That where a railroad is constructed under the provisions of this act there shall be paid by the railway company to the Secretary of the Interior, for the benefit of the particular tribe or nation through whose lands any such railroad may be constructed, an annual charge of fifteen dollars per mile for each mile of road constructed, the same to be paid so long as said lands shall be owned and occupied by such nation or tribe.

See section sixteen of the act of February 28, 1902 (32 Stat., 43, 48); also act of March 2, 1887 (24 Stat., 446); act of February 18, 1888 (25 Stat., 35); act of February 27, 1893 (27 Stat., 492); section five of the act of March 2, 1899 (30 Stat., 990); act of February 24, 1896 (29 Stat., 13); and other acts granting special rights of way to railway companies through the Indian Territory.

By the acts of July 1, 1902 (32 Stat., 716); March 1, 1901 (31 Stat., 861); and July 1, 1902 (32 Stat., 641), ratifying agreements with the Cherokee, Creek, Choctaw and Chickasaw nations, provision is made whereby lands, to which railway companies had acquired a vested right for rights of way for station grounds etc., prior to the date of the ratification, were reserved from allotments to the Indians.

By section fourteen of the act of April 26, 1906 (34 Stat., 137), Congress, in providing a means for closing up the affairs of the Five Civilized Tribes, declared:

That this section shall not apply to land reserved from allotments because of the right of any railroad or railway company therein in the nature of an easement for right of way, depot, station grounds, water stations, stock yards, or other uses connected with the maintenance and operation of such company's railroad, where title to such tracts may be acquired by the railroad or railway company under rules and regulations to be prescribed by the Secretary of the Interior at a valuation to be determined by him; but if any such company shall fail to make payment within the time prescribed by the regulations or shall cease to use such land for the purpose for which it was reserved, title thereto shall thereupon vest in the owner of the legal subdivision of which the land so abandoned is a part, except lands within a municipality the title to which, upon abandonment, shall vest in such municipality.

Under date of June 12, 1908, the Secretary of the Interior approved regulations governing the acquirement of title by railway companies occupying lands in the former Indian Territory, for depots, station grounds, etc., in which November 1, 1908, was designated as the date prior to which any company holding title in the nature of an easement might acquire the fee simple title to such lands, as provided in section fourteen of the act of 1906, above mentioned. This date, it seems, was subsequently extended to March 1, 1909, in order that the appraisers appointed to value the right of way of the Midland Valley Railroad Company might have ample time within which to complete their work.

January 22, 1908, your office, in a letter addressed to the Department, expressed the opinion that there was sufficient authority of law to require railway companies to pay the annual charge of fifteen dollars a mile accruing up to and including November 1, 1908, the date originally designated in the departmental regulations above mentioned, which opinion was approved by Assistant Secretary Wilson, February 19, 1909, and, in accordance with the views of your office as thus approved, calls were made by the Commissioner

to the Five Civilized Tribes upon the various railway companies operating roads in the former Indian Territory to pay this annual charge of fifteen dollars per mile up to November 1, 1908.

The railway companies refused to make such payment, some assigning one reason and others another, it being maintained by some of the companies that upon the allotment of the lands to individual Indians their tribes or nations no longer had any title thereto. Others of the companies maintained that upon the admission of Oklahoma as a State, on November 16, 1907, the right of the tribes. or nations to demand this charge ceased.

The opinion of your office was evidently based upon the theory that the charge of fifteen dollars per mile was in the nature of a property tax upon the land occupied as a right of way, because your office held that the right to receive this payment existed in the Indian tribes or nations until November 1, 1908, on which date, by operation of law, the title to land occupied as rights of way by railway companies vested in the owners of the subdivisions in which the rights of way were located, unless, of course, the railway companies had, in accordance with the regulations of the Interior Department, proceeded to acquire fee simple title to such rights of way as prescribed in the act of April 26, 1906, supra.

In view of the importance of the questions raised, and because of the diverse opinions expressed by the interested parties, the Department, under date of November 18, 1909, directed your office to notify interested parties that they would be permitted to present their views at an oral hearing to be held on December 15, 1909, on which day various companies were represented by counsel, and others have since been heard on briefs.

In order to make a proper disposition of the questions involved it becomes necessary to determine first whether or not this annual charge of fifteen dollars per mile exacted of the railway companies, is a part of the compensation for the land, or whether it is a property tax upon the land itself, or whether it is a charge in the nature of a franchise tax.

It is not believed that Congress considered the annual payment of fifteen dollars per mile as a part of the compensation to be paid to Indians by the companies who might construct railroads in the Territory, for the reason that compensation is usually reckoned as a fixed sum, payable at once or in parts, the amount, however, being always definite or determined, while a tax is usually in the nature of an annual payment for an indefinite period. Moreover, that this charge of fifteen dollars per mile did not constitute a tax on the land itself is evident from the fact that the railway company did not acquire fee simple title to the rights of way but merely a right therein in the nature of an easement, as the fee simple title remained in the tribe