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The act of July 16, 1880 (21 Stats., 267), provided, that repayment may be made in any case " where from any cause the entry has been erroneously allowed and can not be confirmed," etc.

There is no showing that the tract in question could not have been irrigated in some other way than by the water from Canon Creek. Neither is it shown in his application for repayment that he made any efforts to procure water with which to irrigate the land other than those made to get the water from Canon creek.

It does not appear from the facts in this case that the land was erroneously sold by the United States, nor that said sale could not be properly confirmed, if Morgan complied with his part of the contract. The fact that an exigency has arisen which will prevent him from carrying out his part of the contract will not justify the government in paying back the purchase money. His application must therefore be refused.

Your office decision is affirmed.

RIGHT OF WAY ACT-MAP OF DEFINITE LOCATION.

MILWAUKEE, LAKE SHORE AND WESTERN RY. Co.

Under the right of way act, the map showing the definite location of a road should be filed within twelve months after such location, where it is made on surveyed land.

Secretary Noble to the Commissioner of the General Land Office, January 23, 1891.

I have received your letter of the 9th. instant transmitting, and recommending approval thereof under the right of way act of March 3, 1875 (18 stat., 482), maps of two sections of the definitely located line. of road of the Milwaukee, Lake Shore and Western Ry. Co. in Wisconsin.

It is observed, on examination, that the line of route delineated on map No. 1 was adopted as the definite location of the road by a resolution of the board of directors of the company on August 14, 1883, and that on map No. 2, on December 13, 1887, and, further, that the maps were filed in the local office on December 2, 1890.

The lands involved were surveyed many years prior to the location of the road, therefore by the express requirement in the 4th. section of the right of way act the maps should have been filed in the local office within twelve months after such location.

They were not filed till six years, and two years, respectively, after the expiration of the statutory period and are not, therefore, subject to approval. They are returned herewith.

This ruling is in accord with those covered by letters of May 11, 1889, July 10 and December 16, 1890, returning without approval, by reason

of failure to file them in time, maps filed by the Denver, South Park and l'acific R. R. Co., the Longmont, Middle Park and Pacific Ry. Co. and the Southern Pacific R. R. Co. It should govern if similar cases arise in the future.

SCHOOL LANDS-INDEMNITY SELECTION-PRACTICE.

WILLIAM GALLOWAY.

In States where two sections of land to each township are granted for school purposes, twice the amount specified in section 2276, R. S., will be allowed for deficiencies in fractional townships.

An appeal from the decision of the Commissioner removes the case from the jurisdic-. tion of the General Land Office, and a subsequent motion for the review of such decision can not be entertained unless the appeal has been withdrawn and made of record.

Secretary Noble to the Commissioner of the General Land Office, January 24, 1891.

This appeal is filed by William Galloway from the decision of your office of August 24, 1889, affirming the action of the register and receiver rejecting his application, filed January 15, 1889, to make homestead entry of the NE. of Sec. 9 T. 38 N., R. 2 E., Seattle, Washing. ton.

The application was rejected, for the reason that the land had been selected as school indemnity as per list 3, filed July 23, 1870.

The sole ground of error alleged is your holding that the said lands were properly reserved, the averment being that only 480 acres less 270.50 acres in place could be legally selected as indemnity school lands in said township.

The township is fractional, having an area of 12,190 acres.

All of section 36 was taken under donation claims Nos. 38 39, and 40, to Pettles, Vail, and Lysle, respectively. Only 270.50 acres were left in place in section 16.

On the principles of adjustment, as construed by authority of O'Donald v. California (6 L. D., 696), where sections sixteen and thirtysix are both reserved for school purposes, 'he area of the township as above given entitles the State to claim 960 acres. That in place being 270.50, the selection of 680 acres by list 3 is not in excess of the amount lost from the reserved lands.

This case is decided upon its merits from the record now before me. I should add, however, that the motion filed by Mr. Galloway, on August 8, 1889, for a review of your decision of March 29, 1889, should not have been entertained, for the reason that an appeal had been filed from said decision, and while said appeal was pending your office had no jurisdiction of the case. A motion for review of your office decision should not be considered to operate as an implied withdrawal of the

appeal taken therefrom to the Secretary of the Interior. In such case, before your office can be re-invested with jurisdiction to entertain such motion, the appeal should be withdrawn and made of record. Sapp v. Anderson, 9 L. D., 165; Rudolph Wurlitzer, 6 L. D., 315; John M. Walker, 5 L. D., 504.

Your said office decision is affirmed.

ENTRY OF PUBLIC LAND-ACT OF AUGUST 30, 1890.

INSTRUCTIONS.

The limitation in acreage prescribed by the act of August 30, 1890, extends equally to all the land laws, and restricts the applicant thereunder to three hundred and twenty acres in the aggregate.

The provisions of said act are prospective in operation, and the right of an applicant, therefore, to secure three hundred and twenty acres of public land is not affected by the fact that he had acquired a like amount prior to the passage of said act, if he is otherwise entitled to enter such amount.

Secretary Noble to the Commissioner of the General Land Office, December

29, 1890.

I am in receipt of Acting Commissioner Stone's letter dated October 20, 1890, transmitting for the consideration of the Department his reply to the letter of the register and receiver at Oregon City, Oregon, dated September 29, same year, requesting a construction of the act of Congress approved August 30, 1890, 26 Stat., 391. The question submitted by said officers was:

In construing the act of Congress approved August 30, 1890, can an applicant who shows that he has perfected title to three hundred and twenty acres of land under the land laws of the United States previous to said August 30, 1890, now initiate claims for and acquire title to three hundred and twenty acres more? Or, in other words, if a person perfected title to a preemption and timber land claim of one hundred and sixty acres each, prior to August 30, 1890, can such person now file a homestead entry or other claim, for one hundred and sixty acres each and acquire title thereto?

The reply submitted for my consideration holds that, "the evil intended to be remedied was the acquisition of title to various tracts of land of one hundred and sixty acres each under the laws; that prior to the passage of this act one person could acquire title to 1440 acres of public land under certain laws for the disposition of the public domain other than mineral; that said act is not retroactive and does not in terms or by implication repeal any of the existing laws, but it does limit the amount of land which may be taken under any or all of these laws in the future to three hundred and twenty acres; that "if a person has exhausted all of his rights previous to the passage of the act, he can obtain no more land. This law gives him no new rights, nor does it take any rights away. It simply means that in making disposition of the public lands, the maximum which any one person may 17581-VOL 12—-6

obtain is three hundred and twenty acres, instead of 1440 acres, as under previous laws."

The law under consideration is a part of said act making appropriations for the United States Geological Survey, and reads as follows:

No person who shall, after the passage of this act, enter upon any of the public lands with a view to occupation, entry or settlement under any of the land laws shall be permitted to acquire title to more than three hundred and twenty acres in the aggregate, under all of said laws, but this limitation shall not operate to curtail the right of any person who has heretofore made entry or settlement on the public lands, or whose occupation, entry or settlement is validated by this act.

It will be observed that the limitation of the act August 30, 1890, applies to "occupation, entry or settlement uuder any of the land laws" subsequent to the passage of the act, and restricts the applicant, in the acquisition of title, to not more than three hundred and twenty acres "in the aggregate under all of said laws." The term "said laws" evidently refers to "any of the land laws" which provide for the disposition of the public domain. The limitation cannot be held to apply solely to the "settlement" laws because only three hundred and twenty acres could be acquired under the pre-emption or homestead laws before the passage of this act, and the limitation would be useless. By its terms it extends to "all" of the land laws and must be held to restrict the applicant to enter public lands of whatever kind or description, agricultural, coal, mineral, or lands subject to private entry, based solely upon rights acquired subsequently to the passage of said act, to three hundred and twenty acres "in the aggregate." But it is also provided that "this limitation shall not operate to curtail the right of any person who has heretofore made entry or settlement on the public lands, or whose occupation, entry or settlement is validated by this act," and it follows therefore that the fact that a person "has perfected title to three hundred and twenty acres of land under the land laws of the United States previous to August 30, 1890," will not inhibit his acquiring "title to three hundred and twenty acres more" under any of the land laws, provided he would have been allowed to make entry under the particular law, if said act of August 30, 1890, had not been enacted.

The specific question asked by the register and receiver of Oregon City should be answered in the affirmative, and that portion of the letter which apparently restricts the limitation of said act to the acquisition of title to the public domain under the homestead, pre-emption, timber culture, timber land, and desert land laws, should be omitted. This conclusion is in accordance with the views of the Assistant Attorney-General for this Department, and the opinion of the Hon. Attor ney-General, copy of which please find enclosed herewith.

You will please have a letter prepared in accordance with the views herein expressed.

OPINION.

Solicitor General Taft to Secretary Noble, December 26, 1890.

By letter of the 22d ultimo you submitted for the opinion of the Attorney-General, the question whether in construing the act of Congress approved August 30, 1890, an applicant who shows that he has title to three hundred and twenty acres of land under the land laws of the United States previous to said August 30th, 1890, can now initiate claims for and acquire title to three hundred and twenty acres more, or in other words, whether if a person perfected title to a pre-emption and timber land claim of one hundred and sixty acres each, prior to August 30, 1890, he can now file a homestead entry, or other claim, for one hundred and sixty acres each and acquire title thereto.

The provision in the act of August 30th, 1890 (Laws 1st session 1890, chap. 837, p. 391, Annual Laws), which gives rise to this question is as follows:

"No person who shall after the passage of this act, enter upon any of the public lands with a view to occupation, entry or settlement under any of the land laws shall be permitted to acquire title to more than three hundred and twenty acres in the aggregate, under all of said laws, but this limitation shall not operate to curtail the right of any person who has heretofore made entry or settlement on the public lands, or whose occupation, entry, or settlement is validated by this act."

The question asked must be answered in the affirmative. The language of the provision will permit no other construction. Its whole operation is prospective. The entries upon which the limitation is to operate are those made after the act. Those made before the act, though uncompleted, are expressly saved from the operation of the act by the proviso. The verbs used are all in the future tense. "No person who shall after the passage of this act enter, etc., shall be permitted to acquire more than three hundred and twenty acres in the aggregate." The acquisition referred to clearly begins in the future. It is difficult to see why the limit upon such acquisition, in the absence of anything to the contrary, should not therefore be calculated from and after the passage of the act.

Add to the force of the language of the act that of the well known rule of construction which requires that in the absence of express provision or necessary implication to the contrary, all statutes are to be given a prospective rather than a retrospective operation, and the proper view of the provision under discussion is placed beyond doubt.

Approved:

W. H. H. MILler,

Attorney-General.

FOREST RESERVATIONS-TIMBER TRESPASS-ACTS OF SEPTEMBER 25, AND OCTOBER 1, 1890.

INSTRUCTIONS.

Actions for trespass in case of timber cutting on lands embraced within the forest reservations created by the acts of September 25, and October 1, 1890, will not lie, where such lands are covered by final entries, prima facie valid, and made prior to the legislative or executive withdrawal under said acts.

Persons who have merely made filings on said lands, and are cutting timber thereon should be regarded as trespassers and removed from the reservations. Homesteaders who have not perfected title to the land covered by their entries may be restrained by judicial proceedings from unlawfully denuding the land of timber until the validity of their entries can be determined.

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