HOMESTEADS IN NATIONAL FORESTS-SURVEY-DESCRIPTION-ACT

OF JUNE 11, 1906.

That part of paragraph 8 of the circular of December 16, 1908, which provides for the patenting of forest homestead entries without the necessity of a special survey where the lands are described as "a quarter or a half of a surveyed quarter-quarter section or rectangular lotted tract" applies to legal subdivisions designated as lots only when they are true rectangles as shown by the plats of survey; and a special survey will be required of all claims not described in accordance with a strict construction of said paragraph.

Secretary Ballinger to the Secretary of Agriculture, March 8, 1910.

I am in receipt of your letter of January 31, 1910, requesting the construction by this Department of that portion of paragraph 8 of Land Office circular dated December 16, 1908 (37 L. D., 355), which provides for the patenting of forest homestead entries without the necessity of a special survey where the lands are described as a quarter or a half of a surveyed quarter-quarter section or rec-. tangular lotted tract." In your said letter you request to be advised as to whether this rule applies to legal subdivisions designated as lots, which are not true rectangles, and if so, to what degree they may vary there from.

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The question raised is one which should be determined in advance for the good of both the applicant for lands under the act of June 11, 1906 (34 Stat., 233), and of the Government in passing upon such claims. You state that the Forest Service of your Department encounters much difficulty in the matter of listing agricultural lands within National Forests under the said act, where the lands applied for embrace only parts of legal subdivisions which are designated by lot numbers, and whose sides are straight lines. I quite readily realize the difficulty thus encountered by the Forest Service, and also by the General Land Office of this Department in patenting lands so described. Thus far, but very few claims of this nature have been patented, one of which called for 20 acres of a lotted subdivision, the S. of Lot 1, as shown in Example I of the accompanying diagrams. [Diagrams omitted.]

The claim referred to was patented under the description "the S. of Lot 1" without requiring a special survey at the entryman's expense, as required in certain cases specified in the act of June 11, 1906, and said regulations of December 16, 1908. The technical meaning was given this description, as applied to legal subdivisions in the division of a section as per Example I, wherein the excess or deficiency in area is made to affect only the northernmost tier of legal subdivisions. Hence, in applying the same technical rule to the case referred to, it would be construed to mean an exact 20-acre rectangle on the south side of Lot 1.

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After careful consideration of the matter, however, I am of the opinion that it is neither safe nor proper to apply this technical rule to the description of such parcels of land and dispense with a special survey marking out the exact lines of the claim and showing the corners by substantial marked monuments. Any description which is ambiguous and which renders the area and location of the claim. problematical, should not be given in the final certificate or patent. To do so would too frequently involve the parties in dispute as to boundary lines and lead to unnecessary litigation.

If the description be "the E. of Lot 1" or "the NE. of Lot 1,” for example, as is frequently the case, the difficulty increases. The lots illustrated in Example I being trapezoidal, a line extending from the middle of the south side to the middle of the north would not divide the lot into two equal parts; and if a second line be likewise run east and west the north-east portion thus cut off would not embrace one-fourth the area of the lot. It is therefore evident that lands so described in the listing by your Department should be surveyed out and monuments set at the corners of such irregular tracts.

In sections the areas of which are greatly in excess of 640 acres, it often becomes necessary to divide the half-section into 3 or more tiers all of whose subdivisions are designated by lot numbers as indicated in Example II, herewith. Lots 5 to 12, inclusive, being exactly rectangular (theoretically), and in all respects similar to the legal subdivisions represented in the south half of each of the examples, may be divided into halves, quarters and sixteenths, and so patented, with the same propriety that a regular 40-acre subdivision may be so treated.

There appears to be no question as to the treatment of descriptions of irregularly-shaped lots meandering streams or bodies of water, or bordering mineral and other claims surveyed by metes and bounds, as shown in Example III. It seems to be accepted by all, that a special survey must be procured by the entryman before submitting final proof where the tract entered embraces a part only of such an irregularly-shaped lot.

In conclusion I have to state that that part of the said regulations referred to in your letter must be strictly construed as applying only to lots which are true rectangles as shown by the plats of survey. The law provides for the disposition of public lands by legal subdivisions only, except in a certain class of mineral claims and except the lands be surveyed by metes and bounds. It is therefore upon a loose construction of the law that lands entered under the act of June 11, 1906, are in any event passed to patent for parcels smaller than a legal subdivision without a special survey.

Hereafter, the Commissioner of the General Land Office will be guided by the above in passing upon final proofs submitted upon

entries made under the said act of June 11, 1906, and will require a special survey of claims where they are not described as permitted in paragraph 8 of said regulations of December 16, 1908, strictly construed.

Very respectfully,

R. A. BALLINGER,

Secretary.

ISOLATED TRACTS ORDER OF SALE--SEGREGATION-NOTATION UPON RECORDS.

ERIKSON V. HARNEY.

Isolated tracts do not become segregated upon application for sale until the order of the Commissioner authorizing such sale has been noted upon the records of the local office.

First Assistant Secretary Pierce to the Commissioner of the General (F. W. C.) Land Office, March 12, 1910.

(G. C. R.)

Charles E. Harney has appealed from your office decision of October 21, 1909, which affirms the action of the register and receiver and holds for cancellation his homestead entry made September 24, 1908, for lots 3 and 4 (W. SW. 4), Sec. 18, T. 33 N., R. 52 W., Alliance, Nebraska.

This action was taken on the following state of facts:

May 6, 1908, the local officers transmitted John R. Erikson's application to your office to have the land above described, together with the SE. SE. 4, Sec. 11, of said township, offered for sale as isolated tracts. Your office, by letter "C" of September 8, 1908, directed the local officers to proceed to offer the land for sale under the act of June 27, 1906 (34 Stat., 517).

According to report of the register and receiver, Harney's homestead application, filed September 22, 1908, was erroneously allowedon account of congestion of business in this office and the accumulation of Commissioner's letters on account of the prolonged sickness of the clerk in this office who had charge of such matters.

In other words, your office letter directing sale of the land, assuming that it had then reached the local office, had received no attention, and when Harney's application was presented, the record showed the land subject thereto and his application was accordingly allowed.

Considering Harney's entry erroneously allowed, the register and receiver ordered a hearing and directed Harney to appear before them November 24, 1909, and show cause why his entry should not be canceled as in conflict with the order of your office to sell the land. On the day fixed, Harney failed to appear. Erikson with his attor

ney was present. Without taking any testimony, the register and receiver and your office took the action herein appealed from.

Harney makes affidavit that he went on the land in good faith and has made his home there and made certain improvements. There is nothing to impeach his good faith. He entered the land, which the record showed was subject to entry.

In applying for the sale of the land as an isolated tract, Erikson also appears to have acted in good faith, and from all that appears in the record his application, proofs, etc., are regular.

From equitable considerations, however, it would appear that Harney, by reason of his entry, residence, improvements, etc., has a better right to the land.

Paragraph 22 of the regulations under the supplementary act of March 2, 1907 (34 Stat., 1224), relating to lands in Nebraska (37 L. D., 230) reads as follows:

An application for sale under these instructions will not segregate the lands from entry or other disposal, but such lands may be entered at any time prior to the time of receipt in the local land office of the letter authorizing such sale. Upon receipt of such letter the local officers will note thereon the time when it was received, and at once examine the records to see whether the lands or any part thereof have been entered. They will note on the tract book opposite such lands as are found to be clear that sale has been authorized, giving date of the letter. Such lands will then be considered segregated for the purpose of the sale. If the examination of the records shows that all of the lands applied for have been entered, the local officers will not promulgate the letter authorizing the sale, but will report the facts to this office, whereupon the letter authorizing the sale will be revoked.

The paragraph quoted is also identical with paragraph 8 of the instructions of December 27, 1907 (36 L. D., 216), under the act of June 27, 1906 (34 Stat., 517), amending section 2455, Revised Statutes, and relating to sale of isolated tracts in states other than Nebraska.

Isolated tracts do not become segregated upon application for sale until notation on the records opposite the lands has been made that authority has been given to sell. "Such lands will then [not before] be considered segregated for the purpose of sale," and cannot after such notation be properly entered.

Although your office letter authorizing the sale of the land in question appears to have been in the local office when Harney's entry was allowed, the tract books did not show it, nor was the fact apparently known even to the local officers.

It follows, both from regulations of the Department and from equitable considerations, that Harney, by virtue of his entry, has a better right to the land.

It may be added that the unfortunate situation involved in this case is due to the neglect of the local officers, whose excuse therefor

is not satisfactory. Notations on tract books showing changed status of lands should be immediately made irrespective of other matters to avoid embarrassment to innocent parties depending upon the correctness of those records.

Attention is called to the fact that Harney has applied to enter lots 1 and 2 of section 19 of same township, as contiguous to his existing entry, these lots having recently become public lands through relinquishment of former entry.

No reason appears why sale of the SE. SE. 4, Sec. 11, of said township may not now be had as per the order of your office on Erikson's application.

For reasons above given, the action appealed from is reversed.

GERARD AND MCKEE SCRIP-LOCATABLE ONLY UPON SURVEYED

LAND.

INSTRUCTIONS.

Gerard and McKee scrip may be located only upon surveyed land.

First Assistant Secretary Pierce to the Commissioner of the General (F. W. C.) Land Office, March 14, 1910.

(J. H. T.)

You have submitted to the Department for consideration a letter of inquiry presenting the question whether McKee scrip may be properly located upon unsurveyed lands. You state that no general instructions relative to this scrip have ever been issued.

The act of January 25, 1853 (10 Stat., 745), for the relief of the widow and orphan children of Colonel William R. McKee, provides in part as follows:

That to each of the orphan children of the said McKee, there shall be, and hereby is, granted one quarter section of land, to be located upon any vacant land of the United States, and to be located where and in such manner as the President of the United States shall direct.

The amendatory act of March 1, 1889 (25 Stat., 1307), provided:

That the Commissioner of the General Land Office, to carry into effect the grant of one-quarter section each to the orphan children of Colonel William R. McKee, made in the second section of said act, be, and he is hereby, authorized and directed to issue to the surviving children and grand children of said McKee, or the owners and holders thereof, other certificates for those they now hold, issued by authority of said act, which new certificates they may enter and locate for themselves upon any lands in satisfaction of said grant of the class described in the act to which this is an amendment.

From your recital of the records of your office, it appears that there are six forty-acre pieces of this scrip outstanding. You also state that two pieces of forty acres each have been located on unsur