RAILROAD GRANT-RESERVATION; PRICE OF LAND.

CLARK v. NORTHERN PACIFIC RAILROAD COMPANY.

The lands of the Crow Indian reservation, released under a treaty made before but ratified (April 11, 1882) after definite location, were excepted from the grant to the Northern Pacific Company.

Where the statute, providing for indemnity, requires the double-minimum price to be paid for the even sections, but fixes no price for the odd sections, lands in either odd or even sections, which may afterwards be disposed of, must be sold at the double-minimum price, saving however the rights of settlers prior to withdrawal. Secretary Teller to Commissioner McFarland, September 17, 1884.

I have considered your letter of 20th ultimo, respecting the price to be charged for lands within the granted limits of the Northern Pacific Railroad, released from reservation for the Crow Indians by act of Congress April 11, 1882, (22 Stat., 42), ratifying the agreement made June 12, 1880, with said Indians.

The even sections along said line are fixed by law at $2.50 per acre, being alternate reserved sections along the line of a land grant road, and your ruling to the effect that, where the odd sections by reason of being in a state of reservation at date of definite location are excepted out of the grant, such exception operates to destroy the alternation of the even sections and thus preserves the single minimum price of $1.25 per acre is error. The grant is of quantity to be taken in place where the lands are in condition to pass by the grant at definite location, with indemnity for the alternate odd sections exceptionally taken out of the grant by sale, reservation, pre-emption claim, or otherwise. It may be that a single quarter section is thus excepted; it may be a whole section; it may be several sections; and it may be a large tract: but the principle is precisely the same. It is in each particular case an alternate odd section that, but for the exceptional condition as expressed in the grant, would pass.

So the alternation of the even sections depending upon the same conditions is alike preserved, and the legal price is $2.50 per acre as fixed by law. See the case of Robert C. Hite, decided by this Department 20th of May last (2 L. D., 680).

Respecting the odd sections opposite the line of definite location of June 27, 1881, you hold that they are excepted from the grant by reason of the reservation for Indian purposes, as, although the agreement was made in 1880, Congress did not ratify it until April 11, 1882, after the date of such location. I have before me, involving this question, the case of Benjamin V. Clark v. N. P. R. R. Co., on appeal from your decision of September 29, 1883, awarding to Clark the S. of NW. and NW. of SW. of Sec. 29, T., 1 S., R. 11 E., Bozeman district, Montana.

Although the legislative intent in this case may not be entirely free

from doubt, in that it was one of the well-understood purposes of said agreement to afford opportunity for a speedy location and construction of the road without trespassing upon the rights of the Indians, yet, in view of the doubt, and of the fact that when the definite location was made the release had not become such as to restore the lands to the public domain, I concur in your opinion and affirm your decision,-the law of the case having been substantially settled by numerous decisions of the Department and the courts.

The question, then, recurs upon your recommendation of 20th ultimo to increase under Section 2364 of the Revised Statutes the price of the odd sections to be disposed of within the granted limits. That section provides that, "Whenever any reservation of land is brought into market, the Commissioner of the General Land Office shall fix a minimum price, not less than one dollar and twenty-five cents per acre, below which they shall not be disposed of." There is no doubt of your authority to fix such price, under this statute, and as the same reason applies for the increase as pertains to the even sections, and as it would secure complete uniformity along the whole line within common limits, I approve your recommendation.

Without this express provision, it may be said in general, as being well settled law, that where a thing is within the reason of a statute it will be considered as within the letter, although not specially mentioned, notwithstanding the converse doctrine that "expressio unius est exclusio alterius." It is said that "where a statute is imperative no reasoning ab inconvenienti should prevail; but unless it is very clear that violence would be done to the language of the act by adopting any other construction, any great inconvenience which might result from that suggested may certainly afford fair ground for supposing that it would not be what was contemplated by the legislature, and will warrant the court in looking for some other interpretation"; (Broom's Legal Maxims, 186). This is in explanation of the declaration that "the law will sooner suffer a private mischief than a public inconvenience," (ibid.), and its application must be much more forcible where both the public and the private convenience will be best subserved by holding all disposable lands, in like situation and within common limits, at the same uniform price fixed by law for the major portion of such tracts.

And this is in harmony with other laws. The greater number of acts raising lands to the double-minimum within railroad limits prescribe "that the sections and parts of sections which remain to the United States shall not be sold, when sold, for a less price than two dollars and fifty cents per acre." It is therefore entirely consonant to reason and good construction, where a grant is made declaring that the alternate even sections reserved to the United States shall not be sold for less than $2.50 per acre, with added provisions excepting out of the grant such odd sections as may fortuitously happen to be found in certain designated conditions, without mentioning the terms upon which such

odd sections shall be disposed of, to hold that as the Department is constructively authorized to treat them as public lands in the same category as the even sections, and to dispose of them in the same manner, they should bear the same price. It never could have been the intent of Congress to fix different prices for lands lying side by side in common limits and governed by the same rules of disposal, basing the dif ference on the fact of one section bearing an odd and the other an even number in designating them descriptively for purposes of survey and identification merely.

I accordingly decide that the law should be so construed, and direct that, for future disposal within railroad limits, where the statute requires the double-minimum to be paid for the alternate sections you hold all the lands at such price, thus producing perfect uniformity in all respects as to the tracts in the same circumstances, observing, of course, the right of settlers before withdrawal to pay at the minimum price as provided by law.

FEES-REDUCING TESTIMONY TO WRITING.

CIRCULAR.

Acting Commissioner Harrison to registers and receivers, October 4, 1884. From and after the receipt of this circular, all testimony for claimants in establishing pre-emption or homestead rights, or mineral entries, and in contested cases, must be reduced to writing under the direct supervision of registers and receivers whenever such testimony is taken in towns where local offices are situated; but registers and receivers are not entitled to any fees for examining and approving testimony in pre-emption cases where the proof is taken before a judge or clerk of a court.

All fees received for examining and approving testimony not reduced to writing by you (except in final homestead proofs made before a judge or clerk of a court), and the fee of one dollar deposited with the regis ter for giving notice of the cancellation of an entry when no cancellation was made, must be at once returned to the person paying the same, or to his agent upon his presenting the proper authority entitling him to receive it.

You will give these instructions the widest circulation possible, without incurring any expense whatever upon the part of the United States.

(Approved October 6, 1884, by Secretary Teller.)

SECOND ENTRIES AND FILINGS.

CIRCULAR.

Acting Commissioner Harrison to registers and receivers, October 23, 1884. The very large number of applications for changes of entry and filings and for new entries or filings under the pre-emption, homestead, timberculture, and other acts, render it necessary to advise you that the allowance of such applications is, as a rule, without authority of law.

It occasionally happens that an error has been made in the description of land applied for, but that such error is as universal as would be implied by the frequent applications for a change to another tract is not to be presumed.

You will exercise the greatest care and discrimination in accepting such applications, and you will hereafter in every case require applicant to prove that the tract was errone ously entered by a mistake of the true numbers of the tract intended to be entered, and that every reasonable precaution and exertion had been used to avoid the error, and showing particularly how the same occurred. You will require corroborative testimony upon these points. The affidavit of the party in interest uncorroborated by other testimony will not be deemed sufficient.

You will also require satisfactory evidence, by sufficient affidavit or affidavits, that applicant has not assigned, transferred, sold, or disposed of, nor agreed to sell, assign, transfer, or dispose of, any right or interest under said alleged erroneous entry or filing, nor received or been promised any consideration whatever for abandoning said land or for relinquishing his claim thereto, and that he has not executed any relinquishment thereof, nor agreed to do so, and that his application for a change of entry is not made for the purpose of enabling any other person to enter the originally entered tracts.

In the case of a pre-emption entry or filing, or a homestead entry made upon allegation of existing residence upon the land, applicant will be required to prove to your satisfaction that he was actually residing upon the tract to which change is desired, at the date of such filing or entry, and that he intended to enter that land, and did not know that his application or filing embraced other or different land.

You are authorized to reject applications for insufficiency of proof, or when you are satisfied that the same is not made in good faith or that no actual mistake has occurred. If appeal is taken you will transmit the testimony with your opinion in writing. In all other cases you will transmit the testimony, together with your joint written opinion both as to the existence of the mistake and the credibility of each person testifying, and your recommendation in the case.

You will bear in mind that every person is restricted by law to one entry under the pre-emption, homestead, timber-culture, timber-land, and desert-land laws.

7747 LAND-11

Applications for second entries or filings, or changes amounting to second entries or filings, under these laws should not be allowed where the defect in the original entry or filing was one that the party himself might have avoided by the exercise of due diligence and proper compliance with law. Non-compliance with law, or alleged ignorance or misinformation in regard to the requirements of the public land laws, or want of a proper examination of the land, or the alleged existence of prior adverse claims of which the subsequent entryman had notice, or was bound to take notice, are not valid reasons for changes of entry or for the allowance of new or second entries or filings for different land. The existence of a pre-emption filing or declaratory statement for a tract of land, proof not having been made, is not a bar to the entry of the land by another person, and is not sufficient ground upon which to base an application for a change of entry or for a new entry of other land by a party who has made entry over such filing. You will not receive or transmit to this office applications based upon that ground. Second pre-emption filings for different land are not permissible when the land originally applied for was subject to pre-emption at date of filing, and applications for such second filings will not be received or transmitted.

(Approved October 25, 1884, by Acting Secretary Joslyn.)

PRE-EMPTION-SETTLEMENT.

HOWDEN v. PIPER.

An act of settlement must consist of some substantial and visible improvement of the land, having the character of permanency, with intent to appropriate it under the law. The mere intention to perform such acts at a future day is not a substitute for their actual performance, and the law will not recognize it as the foundation of a pre-emption claim.

"Picking" to the depth of an inch a piece of ground six by eight feet (which was subsequently plowed up), and erecting two boards in the form of a cross (which were directly blown down), were not acts of settlement.

Acting Secretary Joslyn to Commissioner McFarland, October 27, 1884.

I have considered the case of Benjamin F. Howden v. James R. Piper, involving the N. E. of Sec. 14, T. 112, R. 62, Huron, Dakota, on ap peal by Piper from your decision of February 21, 1884, holding his filing for cancellation.

Howden filed declaratory statement on February 14, alleging settlement February 11, 1882, and Piper filed declaratory statement June 14, alleging settlement March 30, 1882.

The testimony shows that upon the day of Mr. Howden's alleged settlement, one Schawb took him and two others in a wagon for the purpose of locating each upon government land. The three each took