If it is necessary that the selection should be made by formal applica tion in the local office, it follows that the statutory fee must be paid. The payment of these fees works no hardship on the company in this case. They are required to be paid in all cases of lands "listed", that is, lands within the primary limits of a grant, as well as in cases of land "selected" as indemnity. In the case at bar the company has paid no listing fees on account of the lands surrendered, and in paying the fees on the lieu lands it will do no more than it would have been required to do if the exchange had never been made. Therefore no additional requirement and no inconvenience will be imposed by the enforcement of the rule.

It is understood that it has been the universal rule in the administration of the act of June 22, 1874 (18 Stat., 194), which is in all material respects similar to the act of July 12, 1891, to require the payment of fees on account of lands selected under that act in pursuance of the provisions of section 2238 of the Revised Statutes. If the provisions are applicable to the act of 1874, they are equally so to the act under consideration. The statute is mandatory, as I view it, and its terms cannot be avoided.

In connection with the subject of this decision the attention of your office is directed to the act of July 31, 1876 (19 Stat., 121); the decision of the Department in the case of St. Paul, Minneapolis and Manitoba Ry. Co. (20 L. D., 22), and of the supreme court in Pacific Ry. Co. v. United States (124 U. S., 124).

In the adjustment of this matter you are directed to proceed as herein indicated.

In the survey of Alaskan land desired for a fishing station, under the provisions of section 12, act of March 3, 1891, a failure to observe the requirement that the land shall be taken as near as practicable in a square form, will not be excused on the ground that the land excluded is valueless for fishing purposes. Surveys under said section are not authorized in the absence of a formal application therefor, verified by affidavit, showing the character, extent, and approximate value of the improvements owned by the claimant.

Secretary Bliss to the Commissioner of the General Land Office, June 17, (W. V. D.) (W. M. B.)

1897.

The Central Alaska Company, an alleged corporation, appeals from your office decision of May 14, 1895, rejecting survey No. 118, executed August 11, and 12, 1893, under sections 12 and 13, act of March 3, 1891 (26 Stat., 1095), by Albert Lasey, U. S. deputy surveyor, including a tract of land containing an area of 38.52 acres, situate near Five Mile 10671-VOL 24——35

1

point, known as Northeast Harbor, on the coast of Kadiak Island, district of Alaska, and used during the fishing season as a fishing station. In the decision appealed from it is stated that the survey was rejected,―

for the reason that the land claimed is not occupied with such permanent improvements as evidence such a business as is contemplated by law, and because the tract is not as near as practicable in square form.

The plat shows that the tract embraced in the survey is a long narrow strip of land, the length of the shore or meandered line thereof being ten times greater than the width of the tract at several points.

The deputy, under the head of explanations attached to his return of this survey, states that the survey was completed before receipt by him of the ex officio surveyor-general's letter of July 8, 1893, informing him that these surveys should not be executed except under special instructions, and states further that the survey was made under general printed instructions of March 17, 1892. The referred to instructions were issued more than sixteen months before the field work upon this survey was commenced. The survey, however, was not executed in conformity with said general instructions, which among other things directed deputy surveyors engaged in making this class of surveys to "conform to said act of March 3, 1891, and . . . . regulations thereunder dated June 3, 1891."

Section 12 of the act of March 3, 1891, required that lands sought to be entered thereunder should be "taken as near as practicable in a square form," and paragraph 13 of the regulations of June 3, 1891 (12) L. D., 583), prescribed that:

The land to be surveyed, . . . . must be in one compact body and as nearly in square form as the circumstances and configuration of the land will admit.

The attorney for claimants contends that:

The form of the survey is as near as practicable in square form, without including valueless mountain land of no benefit to claimant for the purposes of fishing.

It appears from the plat that more than four fifths of the area embraced in the survey in its present or existing form is mountainous land, there being only a narrow strip of land, about one chain in width, between the meandered coast line and the foot of the mountain, which extends almost the entire length of the survey.

There appears to be no reason why the front or meandered coast line of the survey which is 57.30 chs. in length should not have been shortened and the survey extended inland and made in square form as required by law and regulations. The configuration of the land would admit of a survey in such form.

There is no statutory provision which excludes mountainous lands from the area embraced in these surveys-where such mountainous lands do not contain coal or the precious metals-and the failure to follow the requirements of law and regulations as to "square form" in the execution of said surveys will not be excused upon the ground

that the exclusion of such lands is proper because they are valueless for fishing purposes.

In prescribing that these lands should be "taken as near as practicable in a square form" it was evidently the intention of Congress to require purchasers and entrymen to take some of the less valuable lands lying along the interior or back lines of the surveys together with the more valuable lands lying adjacent to the water or meandered shore line of the surveys, which would prevent purchasers from entering long narrow strips of land, and thereby secure an exclusive monoply of extended coast lines and of the more valuable lands bordering thereon. In most instances deputy surveyors state in their returns that these non-mineral lands are valueless except for fishing and cannery pur poses, and there appears to be no reason why there should not be included in those portions of the surveys lying back from the water valueless mountain lands as well as level lands which are valueless for fishing purposes.

If this survey was objectionable in no other particular than those above mentioned it might be suspended with the right of amendment, but there appear to be reasons why it should be wholly rejected.

With reference to the improvements upon and occupancy of the land claimed, the deputy makes the following statement:

The improvements consist of the four large barrabarries on the right bank of the creek, and the different barrabarries and sheds along the beach as designated on the plat, valued at $200.00.

The claimant is in possession and has used the place for several years as a station during the fishing season.

The record fails to show that an application was made to the ex officio surveyor-general for this survey wherein "the character, extent, and approximate value of the improvements" alleged to be owned by claimants are required to be shown by verified affidavit prior to the execution of said surveys, as is directed to be done by paragraph one of the regulations of June 3, 1891. It would appear that the survey was made without such application, since the entire deposit for the cost of the survey was made subsequent to the completion of the field work. Surveys and deposits made in such manner are not authorized by law or regulations.

The record does not show whether the improvements upon the land included in the survey were placed there by claimants or whether they were made by others. Though the claimants, as stated by the deputy, have for several years been using the tract in question as a fishing ground or station, during a portion of each year, it does not appear that they had, up to the time of the survey, placed thereon improvements of such character and value as would indicate permanent occupation of the land for the purpose designated in section 12 of the act of March 3, 1891.

For the foregoing reasons the decision of your office rejecting survey No. 118 is hereby affirmed.

CIRCULAR PRESCRIBING RULES AND REGULATIONS FOR MAKING SELECTIONS OF LAND IN THE STATES OF MONTANA, NORTH DAKOTA, SOUTH DAKOTA, AND WASHINGTON, UNDER THE GRANTS TO SAID STATES.*

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., May 27, 1891.

The Registers and the Receivers of U. S. Land Offices

in Montana, North Dakota, South Dakota, and Washington. GENTLEMEN: The following rules and regulations are prescribed for making selections of land in the States of Montana, North Dakota, South Dakota, and Washington, under the provisions of the acts of Congress of February 22, 1889 (25 U. S. Stat.. 676), entitled "An act to provide for the division of Dakota into two States and to enable the people of North Dakota, South Dakota, Montana, and Washington to form constitutions and State governments and to be admitted into the Union on an equal footing with the original States, and to make donations of public lands to such States," and of February 28, 1891 (U. S. Stat., 51st Cong., Sess. II, p. 796), entitled "An act to amend sections twenty two hundred and seventy-five and twenty-two hundred and seventy-six of the Revised Statutes of the United States providing for the selection of lands for educational purposes in lieu of those appropriated for other purposes."

Section 10 of the act of February 22, 1889, provides:

That upon the admission of each of said States into the Union sections numbered sixteen and thirty-six in every township . . . . and where such sections, or any parts thereof, have been sold or otherwise disposed of by or under the authority of any act of Congress, other lands equivalent thereto, in legal subdivisions of not less than onequarter section, and as contiguous as may be to the section in lieu of which the same is taken, are hereby granted to said States for the support of common schools, such indemnity lands to be selected within said States in such manner as the legislature may provide, with the approval of the Secretary of the Interior.

Said section contains the following proviso:

That the sixteenth and thirty-sixth sections embraced in permanent reservations for national purposes shall not, at any time, be subject to the grants nor to the indemnity provisions of this act, nor shall any lands embraced in Indian, military, or other reservations of any character be subject to the grants or to the indemnity provisions of this act until the reservation shall have been extinguished and such lands be restored to, and become a part of, the public domain.

Section 11 relates to the sale and leasing of the lands granted in the sections 16 and 36, and provides:

And such land shall not be subject to pre-emption, homestead entry, or any other entry under the land laws of the United States, whether surveyed or unsurveyed, but shall be reserved for school purposes only.

The proviso to section 10, and the portion of section 11, above cited, in so far as they are in conflict with sections 2275 and 2276, Revised

Not heretofore reported.

Statutes of the United States, as amended by the act of February 28, 1891, are superseded by the provisions of said amended sections, and the grant of school lands provided for in the act of February 22, 1889, should be administered and adjusted in accordance with the later legislation, (12 L. D., 400).

Section 2275, Revised Statutes, as amended by the act of February 28 1891, grants to the several States and Territories as indemnity for sections 16 and 36, lands of equal acreage with those lost, to be selected anywhere within the State or Territory where such losses occur, in the following cases, viz:

1. Where sections 16 or 36, or any portions thereof, have been settled upon prior to survey, under the provisions of the pre-emption or homestead law.

2. Where such sections are mineral lands, or are included within any Indian, military, or other reservation, or are otherwise disposed of by the United States.

3. Where sections 16 or 36 are fractional in quantity, or where one or both are wanting by reason of the township being fractional, or from any natural cause whatever.

Section 2275 contains the following provisos:

Where any State is entitled to said sections sixteen and thirty-six, or where said sections are reserved to any Territory, notwithstanding the same may be mineral land or embraced within a military, Indian, or other reservation, the selection of such lands in lien thereof by said State or Territory shall be a waiver of its right to said sections. It is also provided: That nothing herein contained shall prevent any State or Territory from awaiting the extinguishment of any such military, Indian, or other reservation and the restoration of the lands therein embraced to the public domain and then taking the sections sixteen and thirty-six in place therein; but nothing in this proviso shall be construed as conferring any right not now existing.

Said section further provides:

And it shall be the duty of the Secretary of the Interior, without awaiting the extension of the public surveys, to ascertain and determine, by protraction or otherwise, the number of townships that will be included within such Indian, military, or other reservations, and thereupon the State or Territory shall be entitled to select indemnity lands to the extent of two sections for each of said townships, in lieu of sections sixteen and thirty-six therein; but such selections may not be made within the boundaries of said reservations.

Section 18 of the act of February 22, 1889, relates to mineral lands, and to indemnity for sections 16 and 36 found to be mineral. This class of indemnity is also provided in the later general act above referred to, and instructions in relation thereto will be found on page 4 of this circular.

Section 19 of the act of February 22, 1889, provides:

That all lands granted in quantity or as indemnity by this act shall be selected, under the direction of the Secretary of the Interior, from the surveyed, unreserved, and unappropriated public lands of the United States within the limits of the respective States entitled thereto. And there shall be deducted from the number of acres of land donated by this act for specific objects to said States the number of acres in each heretofore donated by Congress to said Territories for similar objects.