DECISIONS RELATING TO THE PUBLIC LANDS.

383

SCHOOL-LANDS-SETTLEMENT.

CHRISTIAN P. WILLINGBECK.

Although the settlement of the homestead claimant was subsequent to the survey in the field, in view of the peculiar equities, the case is referred to the Board of Equitable Adjudication.

Secretary Teller to Commissioner McFarland, February 6, 1885.

I have considered the appeal of Christian P. Willingbeck from your decision of March 22, 1884, rejecting his application of January 18, 1884, to make a homestead entry for the SW. of Sec. 16, T. 1 S., R. 1 E., Salt Lake City, Utah.

This township was surveyed in 1856 and the plat was filed in January 1869. It appears that the tract was first settled upon in 1848 and so continued until 1870, when Willingbeck purchased the improvements, paying therefor $600. He has continuously resided upon the land from that date, and his improvements are now valued at $3,000. No one, prior to Willingbeck's application of January 18, 1884, ever applied to enter or file for it. Section 15 of the act of September 9, 1850, (9 Stat., 457), reserved to the Territory of Utah (when surveyed) sections sixteen and thirty-six in each township for school purposes, and the act of February 26, 1859 (11 Stat., 385-now Sec. 2275, R. S.), provides "That where settlements with a view to pre-emption have been made before the survey of the lands in the field, which shall be found to have been made on sections sixteen or thirty-six, said sections shall be subject to the pre-emption claim of such settler; and if they, or either of them, shall have been or shall be reserved or pledged for the use of schools or colleges in the State or Territory in which the lands lie, other lands of like quantity are hereby appropriated in lieu of such as may be patented by pre-emptors.".

Your decision held that both the homestead and the pre-emption laws require a personal settlement on public land, in order to recognition of a claim thereunder, and that in the present case the only person who could successfully defeat the reservation in favor of the Territory was he who settled prior to its survey in the field and who has maintained his settlement and residence since that date, and that consequently Willingbeck, who settled (in 1870) subsequently to the survey (in 1869), could not avail himself of the settlement prior to his own, in order to defeat the reservation. I concur in the technical correctness of this ruling, but in view of the large equities in favor of Willingbeck and the extreme hardship which would result from a rejection of his application, of his apparent good faith and of the fact that an allowance of his claim would cause no loss to the Territory of Utah, which should be allowed indemnity in lieu of this tract, whereby this question becomes one really between the government and Willingbeck only, I modify your decision and direct that the case be referred to the Board of Equit. able Adjudication.

PRE-EMPTION-MARRIED WOMAN.

SARAH A. EDWARDS.

A single woman marrying after filing declaratory statement, and before final proof, loses the right to purchase under the pre-emption law.

Secretary Teller to Commissioner McFarland February 6, 1885.

I have considered the appeal of Mrs. Sarah A. Edwards, formerly Evans, from your decision of July 3, 1884, rejecting her final proof for the N. NW. of Sec. 21 T. 1 R. 21, Hailey, Idaho, because she married after having filed her declaratory statement for said tract and before making final proof thereon.

Concurring in your conclusions as to the facts and the law of the case; (see Rosanna Kennedy, 10 C. L. O., 152,) your judgment therein is affirmed.

HOMESTEAD-HEIRS.

RICHARD CLUMP.

There being no statutory beneficiaries to assert a claim under the entry made by deceased the said entry must be canceled.

Secretary Teller to Commissioner McFarland February 9, 1885.

I have considered the appeal of John Van Harlingen from decision. of your office, rendered June 23, 1884, wherein you hold cash entry No. 8123, made by him as administrator of the estate of Richard Clump, deceased, for cancellation.

Clump made homestead entry No. 3625 May 3, 1882, for the N. of SE. 1, SW. of SE. 4, of Sec. 15, and the NW. 1 of NE. 4, of Sec. 22, T. 2, R. 14, Stockton, California. Clump it appears died May 12, 1883.

December 22, 1883, Van Harlingen, as administrator, presented final proof for the tract under the provisions of Section 2301 of the Revised Statutes, which was accepted and cash entry allowed. Your office advised that in pursuance of law, it would be necessary for the decedent's widow or heirs to make affidavit as required under Sec. 2301. In response to such request, it is shown that there are no known heirs.

The homestead law makes provision that in the event of the death of the entryman, his widow, or in case of her decease, his heirs or devisee, shall be entitled to the benefits accruing to him. In this case there is no claim made by the beneficiaries mentioned in the law. Your office does not possess the power to issue final certificate in the absence of final proof by a duly authorized person.

Your decision is affirmed.

DESERT LAND-FİNAL PROOF.

The proof is satisfactory when it shows the claimant to be the owner of a sufficient quantity of water to irrigate the land sufficiently for agricultural purposes, and that he has conveyed such water on the lands, so that it can be used in irrigating the crop.

Secretary Teller to Commissioner McFarland, February 9, 1885.

I have yours of the 4th instant concerning the submission by the register at Cheyenne, Wyoming Territory, of certain Desert land proofs, for such construction as I may think proper to give.

You say on examination, that the proof is not in accordance with my decision of August 2, 1882. I suppose you refer to the case of Wallace v. Boyce (1 L. D., 54), decided by me on that date. I have examined the proofs sent forward by the register and have carefully examined the decision to which you refer. It appears by the printed form for taking proof that the rules of the office require that it should appear not only that the claimant has conducted water on the land, but that he has raised an agricultural crop. There is nothing in the act that requires such proof be furnished, and in the case referred to, I said I did not think a regulation of the office that such proof be furnished can be said to be in contravention of the act. I am disposed to modify the views thus expressed as it may be a hardship in many cases to require proof of this character. The fact to be ascertained is, has the claimant of desert lands reclaimed the lands within the meaning of the act. He has three years to make such reclamation which can only be done in one way, and that is with water. It is true that evidence that such reclamation is perfect and complete will be by proof of an agricultural crop raised on such land by the aid of the water so brought on the land, except in exceptional years as hereafter mentioned. But it is not the only proof, and might not be at all times the best proof. In all the arid districts where the Desert Act is in force, it has been found that some years an agricultural crop may be raised with but little water, and in some instances with none. Taking a favorable year, the proof of an agricultural crop might enable the claimant to enter; and the following year, and many years thereafter, he might not be able to raise a crop with the amount of water owned by him in connection with the land he claims to have reclaimed. The act gives him three years to reclaim the land. It must be supposed then he has the full three years in which to construct his ditches and carry the water to his land, and to prove up. If it is said that no other proof shall be received save that of a growing crop, he may be compelled to put his water on the land within a less time than provided for in the act, for he must have his water on at least four or five months before he can mature his agricultural crop. The act very clearly contemplates that the reclamation must be from a desert state to an agricultural one, and that is proved where it shows 7747 LAND-25

that the claimant is the owner of a sufficient quantity of water to irrigate the land claimed, sufficiently for agricultural purposes and has conveyed such water on the lands in such manner that he can use it for the purpose of irrigating his crop. The mere carrying of water on the land is not sufficient; it must be in sufficient quantities and in such manner that it may be distributed in such quantities that a crop can be raised by the aid of the water so conveyed to the land. I do not think it is necessary to distribute the water over the land as is done in the course of irrigation. That would be to require a useless thing of the claimant, but the water must be conveyed to the highest portions of the land.

I do not give the case of Wallace v. Boyce the force you appear to have given it. Boyce, it appears, failed to conduct a sufficient quantity of water on the land and failed to make the proper ditches. The case does not appear to have been decided against Boyce because he did not raise a crop, but because the evidence showed he could not raise a crop for want of water, as it appears by the evidence that his ditch consisted of a main ditch and two laterals, from which the loose dirt had not been removed and that if his ditches were completed, only fifty acres could be irrigated out of two hundred and forty that he claimed.

Your regulations should therefore be so amended as to allow other evidence of the reclamation of land besides that of a growing crop. The raising of an agricultural crop may be evidence of reclamation, but it is not the only evidence that ought to be received and ought not at any time to dispense with actual proof as to the character of the ditch, quantity of water, etc., owned by the claimant.

I do not wish to be understood as holding that the water must cover all of the land; but it must be carried to a part whence it can be distributed over the land, except where high points and uneven surface make it practically impossible that it should be done.

The proof appears to be sufficient according to the view I have here expressed, but as to the sufficiency of the evidence, I do not care to decide, that must be left to your office, subject to the rules I have here laid down.

MINING CLAIM; MILL-SITE-NOTICE.

JOHN W. BAILEY ET AL. AND GRAND VIEW MINING & SMELTING CO. Although under the law and office regulations notice should be posted on the mill

site as well as upon the lode portion of the claim, in this case in view of the improvements erected and that no adverse right has intervened and the fact that the failure to post was through oversight, the said requirement is waived. Secretary Teller to Commissioner McFarland, February 10, 1885.

I have considered the appeal of John W. Bailey et al. and the Grand View Mining and Smelting Company, from your decision of August 29, 1884, holding for cancellation mineral entries Nos. 263 and 281 as to the

Aztec and Columbia mill-sites, respectively, situate in the Pioneer Mining district, Dolores County, Lake City, Colorado.

It appears that satisfactory proof touching the Aztec and Columbia Lode claims having been made, said entries thereof together with said mill-sites were allowed by the register and receiver July 22d and August 22, 1881, respectively, and patents accordingly issued thereon for the Aztec Lode April 30th and for the Columbia Lode May 15, 1883; but by your decision in question you held the entries for cancellation as to said mill-sites, because no notice of application for patent therefor had been posted thereon.

The sole question thus presented is as to the sufficiency of notice of application for these mill-sites.

You held aright that both the statute (section 2337 R. S.) and your office regulations (paragraph 73 of U. S. Mining Laws and regulations thereunder) require posting of plat and notice upon the mill-site as well as upon the lode portion of a mining claim, and that it was not competent for your office to waive such requirement. Inasmuch, however, as no adverse claim has intervened, and as failure to comply with such requirement seems to have resulted from oversight rather than from a willful disregard of the same, and as the company has erected large and expensive smelting and reduction works (aggregating several hundred thousand dollars in value) upon said mill-sites, which they are using and occupying for milling purposes in connection with their lode mines, I deem it expedient to direct that such requirement be waived in this particular case, and that you issue patent for the non-mineral residue of said mill-sites upon the present record.

Your decision is therefore reversed.

TOWN GRANT OF CHILILI.

W. H. HENRIE.

The boundaries of the survey conforming to the instructions, the motion for a rehearing is denied.

Secretary Teller to Commissioner McFarland, February 10, 1885.

I have considered the appeal of Franz Huning, administrator of the estate of W. H. Henrie, deceased, from your decision of April 21, 1884, in the matter of the survey of the Chilili town grant, in the counties of Bernalillo and Valencia, New Mexico, and also the application of said Huning and William Pool for a rehearing of the same matter.

This grant was confirmed by the act of Congress of December 22, 1858, (11 Stat., 374) and was first surveyed in 1860. The survey was set aside and a new one was ordered by this Department September 7, 1875, which was made in 1877, and approved by the Surveyor-General for New Mexico. No further proceedings appear to have been had in