EXEMPLIFICATION OF RECORD-PRELIMINARY INFORMATION. F. M. CARRYL. A request for information as to the cost of certified copies of specified papers, or records, in the General Land Office, is entitled to a response with such information as may of necessity be required to form the basis for a request for an exemplification of the record. Secretary Bliss to the Commissioner of the General Land Office, May 5, (W. V. D.) 1897. (G. B. G.) I have your favor of the 3rd instant transmitting a copy of a letter from F. M. Carryl of Newark, New Jersey, addressed to myself and referred to your office by the Department on April 27, 1897. It appears that Mr. Carryl desires certified copies of certain papers relating to fractional section 10, T. 39 N., R. 14 E., 3 P. M., Illinois, now in the city of Chicago, among other things, Copy (dated) of any map or maps showing any resurvey or changes from map of original survey of this tract. It is submitted by your office that this would appear to include a copy of the plat approved October 16, 1896, of the survey of the lake front, executed by Frank Flynt and Walter T. Paine, U. S. surveyors, in pursuance of instructions from the Commissioner of the General Land Office, dated September 24, 1896, and you ask for instructions as to whether there can be furnished at this time a copy of the plat of this last survey, the same to be certified as a true and literal exemplification of the official plat of said survey on file in your office. Sections 460 and 461 of the Revised Statutes provide that— Whenever any person claiming to be interested in or entitled to land, under any grant or patent from the United States, applies to the Department of the Interior for copies of papers filed and remaining therein, in anywise affecting the title to such land, it shall be the duty of the Secretary of the Interior to cause such copies to be made out and authenticated, under his hand and the seal of the General Land Office, for the person so applying. All exemplifications of patents, or papers on file or of record in the General Land Office, which may be required by parties interested, shall be furnished by the Commissioner upon the payment by such parties at the rate of fifteen cents per hundred words, and two dollars for copies of township plats or diagrams, with an additional sum of one dollar for the Commissioner's certificate of verification with the General Land Office seal; and one of the employes of the office shall be designated by the Commissioner as the receiving clerk, and the amount so received shall, under the direction of the Commissioner, be paid into the Treasury; but fees shall not be demanded for such authenticated copies as may be required by the officers of any branch of the government, nor for such unverified copies as the Commissioner in his discretion may deem proper to furnish. It does not appear from the letter of Mr. Carryl that he claims to be interested either for himself or as the representative of another, or that he is entitled to or claims to be entitled to the land to which the papers desired relate, under any grant or patent from the United States, nor can his letter be treated as an application to the Department for certified copies of any papers or exemplifications of any records of your office. It is a request for information as to the cost, by items, of certified copies of certain papers and records therein specified. A due regard for property rights and private interests within the jurisdiction of this branch of the executive department of the government, the supervisory control of which is cast upon the Secretary of the Interior by law, would seem to require that inquiries of this sort should be answered, and such information furnished as may of necessity be required to form the basis of a request of or demand on the proper officer for the application of a statute in any case alleged to come within its provisions. I have therefore to direct that the information desired be furnished, and that on a proper demand being made under the sections of the revised statutes above quoted, by a party or parties coming within the letter or spirit thereof, that such copies and exemplifications be furnished as is therein provided, due regard being had for the public interest. The cost of the copies desired should be approximated and a deposit of money required to cover the cost of their preparation. BENSON v. STATE OF IDAHO. Motion for review of departmental decision of January 8, 1897, 24 L. D., 272, denied by Secretary Bliss, May 6, 1897. RAILROAD SELECTIONS-NON-MINERAL AFFIDAVIT. Secretary Bliss to the Commissioner of the General Land Office, May 10, 1897. I am in receipt of your letter "N" of the 5th instant, relative to the departmental order of the 9th ultimo, 24 L. D., 321, amending the last paragraph of the circular of July 9, 1894 (19 L. D., 21), providing for the examination of selections by railroad companies of lands in mineral belts. In your letter you call attention to the fact said order in addition to making the amendment referred to, also directs a modification of the form of the mineral affidavit now in use in your office; and that “a strict construction" of said order "must be held to apply to all cases of whatever character in which a non-mineral affidavit is now required, for it directs that the form of the non-mineral affidavit now in use in this office be amended;" and you suggest that if the purpose of said amendment was intended to apply only to state and railroad selections, then the departmental order of the 9th ultimo be amended as follows: That in lieu of the words "now in use in this office," the words "in state and railroad selections," be inserted. The purpose of the amendment to the instructions of July 9, 1894, by the order of April 9, 1897, was intended to apply to state and railroad selections only, and in order to avoid the complications that may arise by the construction placed upon it by your office, said order is amended as follows: In the second line of the last paragraph on page two of said order the words "now in use in this office" are stricken out and in lieu thereof the words "in state and railroad selections" are substituted, so that said paragraph will read as follows: "It is also hereby ordered that the form of the non-mineral affidavit in state and railroad selections be amended as follows," etc. RAILROAD GRANT-INDEMNITY SELECTION-SPECIFICATION OF LOSS. NORTHERN PACIFIC R. R. Co. v. SHEPHERDSON. The departmental order of May 28, 1883, waiving specification of loss, was made at a time when the indemnity withdrawals for the Northern Pacific were held valid, and that fact must be taken into consideration, and given effect, in the disposition of selections made thereunder. Under the grant to the Northern Pacific indemnity selections may be made within the first indemnity belt irrespective of the State or Territorial lines within which the loss occurs. 1897. Secretary Bliss to the Commissioner of the General Land Office, May 10, (W. V. D.) (F. W. C.) The Northern Pacific Railroad Company has appealed from your office decision of December 22, 1894, holding for cancellation its indemnity selection covering the SW. of the NW. 4, the N. of the SW. and the NW. of the SE. of Sec. 13, T. 33 N., R. 40 E., Spokane land district, Washington, and permitting the homestead entry made of said land by William Shepherdson May 12, 1890, to remain intact. This tract is within the indemnity limits of the grant to said company and was included in its list of selections filed May 25, 1885. This list was presented under departmental circular of May 28, 1883 (12 L. D., 196), and was not accompanied by a designation of losses as a basis therefor. On October 31, 1887, a supplemental list was filed, in which losses were designated in bulk in amount equal to the selected lands. These losses, it appears from your office decision, were of lands within the Yakima and Coeur d'Alene Indian reservations, in the States of Washington and Idaho, respectively. On September 2, 1892, the company filed a rearranged list of its losses so as to specify the same tract for tract with the selected lands. 10671-VOL 24-27 As before stated, Shepherdson made homestead entry May 12, 1890, and in his affidavit alleged settlement upon the land April 16, 1890. Your office decision holds that the company's selection of 1885 was not protected by the order of 1883, for the reason that the lands were not withdrawn, the indemnity withdrawal being in violation of law, and in support thereof referred to the case of John O. Miller r. Northern Pacific R. R. Co. (11 L. D., 428). In the case of the Northern Pacific Railroad Company r. Holtz (29 L. D., 309) it was held (syllabus): The order of May 28, 1883, waiving specification of loss in support of indemnity selections, was made at a time when the indemnity withdrawals for the benefit of the Northern Pacific were held valid, and that fact must be considered and given effect in determining the scope and purpose of said order, although such withdrawals are now held invalid. It is further held that the designation made in 1887 was not sufficient, for the reason that selections can not be made in Washington for lands lost in Idaho until it is shown that such losses can not be satisfied in the latter State, and in support thereof reference is made to the case of Northern Pacific R. R. Co. (17 L. D., 404). In reviewing the case cited, this Department held (20 L. D., 187), "that indemnity selections may be made within the first indemnity belt, irrespective of State or Territorial lines." The objection stated in your office decision, to the company's selection, is therefore not sufficient, and it must be held, unless other good and sufficient reason appears upon further examination of the company's selection by your office, that its rights under its selection dated back as of the time of the presentation of the list of May 25, 1885, and as this is long prior to Shepherdson's entry, the same must therefore be canceled. Your office decision is accordingly reversed. DESERT LAND ENTRY-MORTGAGE-ASSIGNEE. THOMAS E. JEREMY. A mortgage of land covered by a desert land entry cannot be regarded as entitling the mortgagee to the status of an assignee of the entry, until after foreclosure of the mortgage, if, under the laws of the State in which the land is situated, a mortgage of real property is not a conveyance thereof. Secretary Bliss to the Commissioner of the General Land Office, May 10, (W. V. D.) 1897. This case involves the N. of section 29, T. 1 N., R. 2 W., City land district, Utah. (J. L.) Salt Lake On September 16, 1893, William C. Dyer made desert land entry No. 3843 of said tract, containing three hundred and twenty acres. On September 16, 1895, Thomas E. Jeremy filed his affidavit in the following words: IN THE U. S. LAND OFFICE, Thomas E. Jeremy being duly sworn on oath says he is a citizen of the United States of lawful age, and the assignee of William C. Dyer, who made desert land entry No. 3843, September 16, 1893, for the north half of section 29 in township 1 north of range 2 west, S. L. M. containing 320 acres. That said land was assigned to him by mortgage on the 9th day of October 1893. That since then, said Dyer has died leaving no heir, and affiant has taken possession of said land and reclaimed the same as shown by attached proof. THOS. E. JEREMY. Subscribed and sworn to before me this 16th day of September A. D. 1895. BYRON GROO, Register. With said affidavit, Jeremy filed (1) a certificate, dated September 16, 1895, and signed by one Arthur Parsons, Secretary, N. P. C. I. Co., stating that Thomas E. Jeremy is the owner of two certificates of stock one No. 196 for 74 shares, and one No. 253 for two shares of the capital stock of the North Point Consolidated Irrigation Company of this city and county, Utah Territory. Each share is of the par value of ten dollars, and each share is estimated to be sufficient to irrigate nine acres of land; (2) the affidavits of himself and Thomas L. Irvine and Levi A. Reed, all dated September 16, 1895, and stating that there was expended by Thomas E. Jeremy, assignee of William C. Dyer, during the second year after the date of said entry, that is after the 16th day of September 1894 and before the 16th day of September 1895, the sum of $487, being not less than one dollar per acre of the area thereof, and that the said sum was expended in the following manner viz: In purchasing water stock for irrigating said land the sum of $327, and in clearing a portion of said land $160; total $487; and (3) a copy of a mortgage dated October 9, 1893, purporting to have been executed by William C. Dyer, and conveying the N. of section 29 aforesaid to Thomas E. Jeremy, as a mortgage to secure the payment of $1500 of money, loaned to improve said land, and evidenced by Wm. C. Dyer's promissory note for $1500 made payable to the order of Thomas E. Jeremy on or before three years after date, which is copied in the mortgage. On December 6, 1895, your office, considering said affidavit of Jeremy as an application for recognition as assignee of William C. Dyer, decided (among other things) that until after foreclosure upon the mortgage he (Jeremy) can not be recognized as the assignee of the entry; and that then he could not be so recognized, nor could any other vendee under the sale by decree of court, unless he should show the qualifications exacted of an assignee of a desert land entry. From said decision Jeremy has appealed to this Department. A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale. (Compiled Laws of Utah, Vol. 2, p. 324.) |