Minnesota has passed an act confirming the compromise on condition that appropriate legislation along the line of this bill be passed by Congress. I accordingly indorse the recommendation of the Land Office that the bill become law. Very truly yours, RAY LYMAN WILBUR. Memorandum for the Secretary. DEPARTMENT OF THE INTERIOR, Reference is had to the request of Hon. Don B. Colton, chairman Committee on the Public Lands, House of Representatives, for report on H. R. 5178, Seventyfirst Congress, first session, a bill ratifying and confirming the title of the State of Minnesota and its grantees to certain lands patented to it by the United States of America, the patents in question being those described in said bill. It is provided in the bill that the act shall take effect and be of force only when and after the State of Minnesota shall by legislative act have waived and relinquished any and all right and claim that it may by virtue of the provisions of the act of Congress of March 12, 1860 (12 Stat. 3), have in or to swamp and overflowed lands lying within the White Earth Indian Reservation in Minnesota which have heretofore been conveyed by the United States by patent in trust or in fee to any Indian whether of full blood or of mixed blood. April 18, 1929, the State of Minnesota passed an act (Session Laws of Minnesota, 1929, p. 248), whereby the State waived and relinquished any and all right and claim it might have under the said act of Congress of March 12, 1860, to swamp and overflowed lands lying within the White Earth Indian Reservation in Minnesota which had theretofore been conveyed by the United States, by patent in trust or in fee, to any Indian whether of full or of mixed blood. The said act of the State is to take effect and be of force only when and after the United States, by act of Congress, have ratified and confirmed in the State of Minnesota and its grantees and assigns the title to all lands included within the aforesaid patents, therein listed, issued by the United States to the State of Minnesota, and shall have dismissed with prejudice the suit involving said lands and their value and the proceeds from sales thereof now pending in the Supreme Court of the United States, and entitled United States v. State of Minnesota, No. 8, original, and known as the Second Minnesota Swamp Land case. The said suit was brought to set aside patents from the United States to the State of Minnesota, issued at various dates between 1877 and 1905, covering approximately 465,000 acres of swamp lands. Under the act of September 28, 1850 (9 Stat. 519), the public swamp and overflowed lands were granted the States wherein situated, and it was therein provided that the proceeds therefrom should be applied, as far as necessary, for their drainage and reclamation. Minnesota was admitted into the Union May 11, 1858, and by the act of March 12, 1860 (12 Stat. 3), the aforesaid swamp-land grant was extended to that State with the proviso "That the grant hereby made shall not include any lands which the Government of the United States may have reserved, sold, or disposed of in pursuance of any law heretofore enacted prior to the confirmation of title to be made under the authority of the said act." It has been held that the swamp-land grants were grants in praesenti, and as to Minnesota, therefore, the unreserved, undisposed of swamp lands therein passed to the State March 12, 1860. The contention of the United States in said suit was that the lands therein involved did not pass under the grant because they had been reserved for the use of bands of the Chippewa Indians and that this reservation was not extinguished until 1863, when the Indians ceded the lands so reserved to the United States, shortly after the swamp-land grant, and that no grant by the United States of these swamp lands was made. In a memorandum dated July 18, 1927, furnished by the then Solicitor General to the Attorney General, Department of Justice, copy of which was furnished the Department of the Interior by the Attorney General along with his letter of October 21, 1927, in which letter the Attorney General suggested the advisability of laying the situation before Congress and recommending legislation to cure the technical defects in the State's title, it was, in substance, set forth That there was no formal act establishing the district including these lands as an Indian reservation, but by various treaties with the Indians prior to 1860, other lands of large area occupied by the Indians had been ceded to the United States and the lands in question were among those remaining in possession of the Indians, and the position of the United States is that the effect of these prior treaties ceding the other Indian lands to the United States was impliedly to establish the lands in question as an Indian reservation; that there is authority for this in Minnesota v. Hitchcock (185 U. S. 373) and United States v. State of Minnesota (270 U. S. 181), and that it was thought that it could be established that at the time of the grant to Minnesota in 1860 these lands were reserved and therefore did not pass under the grant. After the lands in question had been ceded by the Indians to the United States in 1863, they ceased to be reserved, but no action was taken in 1863 or later in the nature of a swamp-land grant to the State. The remaining question is one of the statute of limitations. By the act of March 3, 1891 (25 Stat. 1099), it was provided that "suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act. While the statute of limitations has run against the suit by the United States to cancel the patents issued to the State the contention is that the United States can maintain a suit to recover the value of the lands mistakenly patented to the State on the theory that the statute of limitations bars only one remedy, leaving other remedies open. The decisions of the courts in this regard, however, are at variance. In United States 1. The Chandler-Dunbar Co. (209 U. S. 447), it was held, in speaking of the statute of limitations of March 3, 1891, that "this statute must be taken to mean that the patent is to be held good and is to have the same effect against the United States that it would have had if it had been valid in the first place. It could hardly be claimed, in the face of the above holding, that the United States being barred from a suit to cancel the patents could, nevertheless maintain a suit to recover the value of the lands, on the theory that the patents were void in the first place. On the other hand, in United States v. Whited and Wheless (246 U. S. 552), the court said that although the statute of limitations had run against the suit to vacate and annul the patent, it being a suit to recover damages for the fraudulent procuring of the patent, the statute did not run against it since the statute should be construed to apply only to the one remedy, that for annulling the patent, and left the other remedy, one for damages for the fraud, untouched. Assuming that the later decision supersedes the former, the question remains, whether in a case where the patents are issued through mistake and not through fraud, the United States still has the right to compel the State to pay the value of the lands, rather than to return the title. With respect to lands which the State had conveyed to bona fide purchaser, such remedy might exist, but it does not follow that the remedy would apply where the title remains undisposed of in the State. If as to them the sole remedy of the United States is to cancel the patents and regain the title, and if a suit to cancel the patents is barred, then nothing further can be done. However, there is substantial ground to claim that this alternative remedy exists and is not barred by the statute of limitations. It is not certain that the court would follow the decision in the case of Whited v. Wheless, there being no element of fraud, but only of innocent mistake. The Solicitor General in his aforementioned memorandum gave it as his opinion that said suit should never have been brought. He felt, he stated, that the claim of the United States was founded on technicalities, was without equity, and unconscionable; that the whole case was based on the ground that the lands, being reserved, were not subject to the swamp-land grant of 1860, but, after the relinquishment by the Indians, they could have been granted in 1863; that as the lands were patented to the State at various times, all more than 20 years ago (now almost a quarter of a century), the State having expended more than $2,000,000 in obedience to the requirements that it drain and reclaim the lands; that the State having dealt with the lands as though properly granted, no question having been raised by the Government until recently, and the lands being admittedly swamp in character, there would seem to be no reason why the United States should deprive the State of these particular swamp lands because of said technicalities. In his opinion, if the United States were to continue to prosecute this suit with success, it would win a hollow victory because Congress would probably refuse not to enact if requested legislation confirming the transaction. In this situation the Attorney General in his letter of October 21, 1927, herein above referred to, said: "I also think that if the United States should succeed in this case the State of Minnesota ought to have no difficulty in obtaining legislation from Congress confirming the State's title notwithstanding the decision. The act passed by the State April 18, 1929, is contingent upon the passing of this bill. Due consideration has been given this proposed disposition of the matter and the same is thought to be a fair and just arrangement thereof. Accordingly, the passage of H. R. 5178 is hereby recommended. The matter of the disposition of the suit and set-offs claimed by the State on the part of the Government and the State authorities can be taken up should this bill become a law. C. C. MOORE, Commissioner. LEASE OF OIL AND GAS DEPOSITS UNDER RAILROAD AND OTHER RIGHTS OF WAY JANUARY 17, 1930.-Committed to the Committee of the Whole House on the state of the Union and ordered to be printed Mr. COLTON, from the Committee on the Public Lands, submitted the following REPORT [To accompany H. R. 8154] The Committee on the Public Lands, to whom was referred H. R. 8154, providing for the lease of oil and gas deposits in or under railroad and other rights of way, having considered the same, report it favorably to the House with the recommendation that it do pass without amendment. The This legislation is necessary because the United States has no disposable interest in the surface of lands across which easements and rights of way have been acquired under the public land laws. result is that because of the lack of authority the oil and gas can be drained from easements and rights of way lands without remuneration to or control by the Government. The owner of the easement or right of way has no claim to the oil or gas and by reason of the narrowness of the easement and right of way the underlying oil and gas can not be disposed of or operated in terms of normal subdivision or units as is done with other lands. If the drilling of an excessive number of offset wells is to be avoided, the Secretary of the Interior ought to have the discriminatory power conferred upon him which this bill provides. The measure was submitted to the Secretary of the Interior and the chairman of the committee received the following letter and memorandum which explains the provisions of the bill more fully. Hon. DON B. COLTON, DEPARTMENT OF THE INTERIOR, Chairman Committee on the Public Lands, House of Representatives. MY DEAR MR. CHAIRMAN: Responsive to your request of January 3 to report on H. R. 8154, there is transmitted herewith a memorandum submitted by the LEASE GAS AND OIL DEPOSITS UNDER RIGHTS OF WAY Commissioner of the General Land Office. In this connection, also, I invite RAY LYMAN WILBUR, Secretary. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, MEMORANDUM FOR THE SECRETARY By letter of January 8, 1930, Hon. Don B. Colton, chairman Committee on the Public Lands, House of Representatives, requested report on H. R. 8154, entitled "A bill providing for the lease of oil and gas deposits in or under railroad and other rights of way.' This bill would give the Secretary of the Interior authority to lease deposits of oil and gas in lands embraced in railroad and other rights of way to the owner of the right of way at a royalty to be fixed by the Secretary of not less than 121⁄2 per cent; also that the right to lease may be assigned with the consent of the Secretary of the Interior, and further that such right of way lessee may agree with the owner of the adjoining or adjacent lands whereby the oil and gas in the common reservoir may be produced and a division of the production made, including payment of a royalty to the United States for its interest in the deposits. The courts have established as a general principle that a right of way is a limited fee on an implied condition of reverter in case of non-use of the land for the purpose for which the right of way was granted. The act of March 8, 1922 (42 Stat. 414), provides that when a railroad right of way becomes forfeited title to the land shall vest in the owner of the tract over which the right of way runs, such title to be with reservation of the oil and gas and other mineral deposits to the United States. The owner of the right of way has, under the law, no authority to mine any minerals in the land, nor has the owner of the possible reversion; but the owner of the adjacent land may drill wells so close to the right of way as to drain therefrom any oil or gas deposits. appear to be sufficient to warrant legislation by which the interests of the United States in the deposits may be taken care of, and the bill seems to propose a These reasons practicable method for that purpose. I, therefore, favor the enactment of the bill. C. C. MOORE, Commissioner. о |