FULTON v. BUCHHOLZ.

Motion for review of departmental decision of August 27, 1909, 38 L. D., 175, denied by First Assistant Secretary Pierce, January 29,

1910.

UNION PACIFIC RY. CO. ET AL.

Motion for review of departmental decision of October 12, 1909, 38 L. D., 262, denied by First Assistant Secretary Pierce, January 31,

1910.

SECOND HOMESTEAD ENTRY-DISCRETIONARY POWER OF SECRETARY.

MARMADUKE WILLIAM MATHEWS.

The acts of April 28, 1904, and February 8, 1908, authorizing second homestead entries, do not take away from the Secretary of the Interior the discretionary power theretofore vested in and exercised by him as head of the land department to permit second entries on equitable grounds in meritorious cases where the first attempt to exercise the homestead right failed of consummation because of accident, mistake, or other sufficient cause. Finsans Erhardt, 36 L. D., 154, paragraph 9 of instructions of June 11, 1907, 35 L. D., 590, and paragraph 8 of instructions of February 29, 1908, 36 L. D., 291, overruled.

First Assistant Secretary Pierce to the Commissioner of the General ((. L.) Land Office, February 1, 1910.

(J. R. W.)

· Marmaduke William Mathews appealed from your decision of February 6, 1909, rejecting his application for second homestead entry for lots 2 and 3, Sec. 30, NE. NW. and NW. NE. 1, Sec. 31, T. 164 N., R. 79 W., Devils Lake, North Dakota.

April 6, 1908, Mathews made homestead entry for lots 2 and 3, Sec. 19, T. 163 N., R. 79 W., 73.56 acres, canceled on relinquishment September 8, 1908. He applied for entry of the land first above described, filing affidavit corroborated by two witnesses, setting up the first entry and that such land

is totally covered with water, is unfit for agricultural purposes or hay land; that affiant is unable to live on said land as there is no part of it not under water at present time upon which he can erect a building, and for such reasons affiant has been unable to commence his residence or make any improvements thereon since filing; that said tract is lowland contiguous to the bed of Mouse River and the bed of the river itself and for the greater part of each year is in the condition here described, but that at the time of making his filing thereon the water of the river was very low and the ice was not all thawed and affiant was unable to ascertain the real condition of the land and did noť receive reliable information concerning the same before filing. Wherefore affiant asks that said entry be canceled and his filing for [land now applied for] be accepted.

You held that:

As applicant's former entry was not made until April 6, 1908, he does not appear to be entitled to the benefits of act of February 8, 1908 (35 Stat., 6). His application is accordingly denied.

The act referred to provides:

That any person who, prior to passage of this act, has made entry under the homestead laws, but from any cause has lost, forfeited or abandoned the same, shall be entitled to the benefits of the homestead law as though such former entry had not been made, and any person applying for a second homestead under this act shall furnish the description and date of his former entry: Provided, That the provisions of this act shall not apply to any person whose former entry was canceled for fraud, or who relinquished the former entry for a valuable consideration.

A similar act was that of April 28, 1904 (33 Stat., 527), upon which the Department held in Finsans Erhardt (36 L. D., 154) that "the Secretary of the Interior does not have the discretionary power which was exercised prior to the passage of the act of April 28, 1904." These acts are in substance mandates of Congress to the land department to allow second homestead entries in cases wherein the applicants show they are within the provisions named in them. They were, however, construed as acts of limitations upon the power of the land department to grant relief in cases of accident and mistake. By instructions of June 11, 1907 (35 L. D., 590), the act was construed as a limitation, paragraph 9 being that:

In the absence of legislation by Congress, restoring the homestead right, the making of one homestead entry for the maximum area allowed by law exhausts the homestead right, and this Department is without authority to allow second entries to be made. When applications to make second entries are presented and fail to show that they come within the purview of any of the acts of Congress allowing second homestead entries, registers and receivers will reject such applications, giving the reasons therefor and allowing the usual right of appeal.

This was adopted in the same words as paragraph 8, instructions of February 29, 1908 (36 L. D., 291), as applicable to second entries under act of February 8, 1908, supra. This was a new departure from the former holding of the land department, which was (General Circular of January 25, 1904, p. 19) that:

In some cases, however, where obstacles which could not have been foreseen, and which render it impracticable to cultivate the land, are discovered subsequent to entry (such as the impossibility of obtaining water by digging wells or otherwise), or where, subsequently to entry, and through no fault of the homesteader, the land becomes useless for agricultural purposes (as where by the deposit of" tailings" in the channel of a stream a dam is formed, causing the waters to overflow), the entry may in the discretion of the Commissioner of the General Land Office be canceled and a second entry allowed.

This was an equitable power for relief of accident or mistake, or wrong of others than the entryman. Such equitable power arises

from the nature of the land department as the tribunal of sole jurisdiction to administer the public land laws. In the homestead law "the end in view was the peopling of vacant public lands with settlers owning and cultivating their own homes." Webster v. Luther (163 U. S., 331, 340). The right was accorded to every citizen, or head of family, and the public benefit from extension of the productive agricultural area and increase of number of citizenship, as a measure of national concern and wise public policy, was deemed full consideration for the land donated to those who accepted its benefits. Accident and mistake are inevitable in human affairs. The object of Congress and the object of the citizen in accepting its offer must sometimes fail of accomplishment through no fault of the entryman. The land department having all and sole jurisdiction to administer the act necessarily had power to grant relief in such case as any other tribunal would have in similar case to relieve from the hardships of accident and mistake. Equitable rights are within jurisdiction of the land department to determine. Brown . Hitchcock (173 U. S., 473, 478). It may relieve against unforeseen occurrences not provided for by express statutory provisions. Williams v. United States (138 U. S., 514, 524). The land department has been wont to exercise such powers from the earliest times. The rule of approximation is an example, express restrictive words as to area that may be entered under various statutes being forced to yield, as to fractions of subdivisions, to administrative necessity in order to effectuate the spirit and purposes of the land laws. Instructions (31 L. D., 225).

The homestead law as construed by the land department is like the preemption law in respect to a single exercise of the right. In Hannah M. Brown (4 L. D., 9) the right was attempted to be exercised but was defeated of fruition by a prior right to the tract, and when Mrs. Brown attempted to exercise it it was claimed that she was disqualified. The Department held that:

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When the law restricted persons, otherwise properly qualified, to one preemptive right," it meant a right to be enjoyed in its full fruition; not that a fruitless effort to obtain it should be equivalent to its entire consummation.

The object of the homestead law being "the peopling of vacant public lands with settlers owning and cultivating their own homes," it was early held by your office and by the Department that attempt to exercise it on land unfit for a home and not susceptible of cultivation, did not bar allowance by the land department of another entry. L. P. Skarstad et al. (1 L. D., 56); Silas Halsey (2 L. D., 171); Edwin Edwards (8 L. D., 429); William E. Jones (9 L. D., 207): Samuel P. Durham (10 L. D., 557): Lewis Wilson (21 L. D., 390): John Herkowski (28 L. D., 259, 260), Many other decisions, not

only under the homestead law but under other laws giving a single right like the preemption and timber and stone acts, might be cited. Those given suffice to show that from early in history of the homestead law it was recognized that when there was mistake in the character of the land whereby the intent of the law and intent of the entryman for cause not his fault were defeated, the right was deemed not exercised and right to make entry could be recognized as existing.

This salutary and eminently equitable rule is not taken away by the act of April 28, 1904, or of February 8, 1908, supra, or by any other act of like or similar tenor and purpose. Those acts are remedial merely. They show no purpose to take away salutary powers long exercised and exercised and existing from organization of the land department. They are not acts of limitation of power but are grants of right in cases not within the ordinary and longexercised power of the land department. The instructions and decision in Finsans Erhardt, cited as authority for your decision, construing these acts to be limitations upon the power of the land department to grant relief in such cases, are clearly misconstructions of these relief acts, and erroneous, and will no longer be observed by your office.

The proofs satisfactorily show that the object of the homestead law and intent of Mathews in making his entry were defeated without his fault; that the entry was made by mistake as to the character of the land, which was utterly worthless and incapable of cultivation or to be improved and made a home. He never in fact intelligently exercised his homestead right and it will be recognized by your office as not exercised and not exhausted by his illjudged and futile attempt. If no other objection exists his application will be allowed.

COLVILLE RESERVATION - MINING CLAIMS-ALLOTMENTS.

INSTRUCTIONS.

By virtue of the provisions of the act of July 1, 1898, mineral lands within the diminished Colville Indian reservation are subject to location and entry under the mining laws.

A mere paper location, not based upon a valid discovery of mineral, does not withdraw the land from allotment, and allotments thereof may be made, due care being exercised not to make allotments of lands which are in fact mineral.

First Assistant Secretary Pierce to the Commissioner of Indian (O. L.) Affairs, February 1, 1910.

You submit under date the 12th instant, for department approval, recommendations to govern the action of the Commissioner of the

General Land Office in the matter of mining claims on the diminished Colville Indian reservation. You recommend:

First. That you be authorized to instruct the superintendent in charge to notify all persons attempting to file mineral claims thereon that such proceedings are unwarranted and that if they do not discontinue further operations along that line they will be regarded as trespassers and proper steps will be taken to remove them from the reservation.

Second. That the filing of no more mineral entries on the south half of the Colville reservation be permitted and that the necessary steps be taken, where such can be done, to cancel or otherwise vacate all previous entries which have been made thereon.

You quote from the act of July 1, 1898 (30 Stat., 593):

That the mineral lands only in the Colville Indian Reservation, in the State of Washington, shall be subject to entry under the laws of the United States in relation to the entry of mineral lands: Provided, That lands allotted to the Indians or used by the Government for any purpose or by any school shall not be subject to entry under this provision.

Also from the act of March 22, 1906 (34 Stat., 80), section 3, providing:

That upon the completion of said allotments to said Indians the residue or surplus lands—that is, lands not allotted or reserved for Indian school, agency, or other purposes-of the said diminished Colville Indian Reservation shall be classified under the directions of the Secretary of the Interior as irrigable lands, grazing lands, timber lands, mineral lands, or arid lands, and shall be appraised under their appropriate classes by legal subdivisions, with the exception of the lands classed as mineral lands, which need not be appraised, and which shall be disposed of under the general mining laws of the United States.

You give as your opinion that the act of 1898, construed with the act of 1906, does not permit mineral entries to be made within the diminished Colville reservation prior to the allotments and that there is no provision in either act, whereby mineral entries may be made prior to allotments.

The circular of August 11, 1898 (27 L. D., 366), recognized the fact that mining locations may be made under the act of July 1, 1898, and that provision is neither annulled nor modified by the act of March 22, 1906 (34 Stat., 80).

See also 30 L. D., 88-89, wherein Assistant Attorney-General Van Devanter, in an opinion dated June 26, 1900, addressed to the Secretary of the Interior, relative to the cutting of timber on mining claims on the south half of the Colville Indian reservation, Washington, stated:

Thus the mineral lands within the boundaries of the present reservation were made subject to location and entry under the mining laws.

As to the assertion that a large portion of the mineral claims within the south half of the reservation are fraudulent, in that the