The widow of a homestead settler who had not prior to his death established bona fide residence on the land must thereafter both reside on and cultivate the land in her own right at least in the presence of a forest withdrawal. (Susan A. Leonard, 40 L. D., 429.)

Residence. The object of the homestead laws is the donation of public lands to persons seeking to establish and maintain agricultural homes thereon, conditioned upon actual occupancy of the same as a home, and cultivation and improvement of the land; and mere occasional visits to the claim do not meet the requirements of the law. (Oscar O. Reeg, 40 L. D., 206.)

The homestead law contemplates a continuous compliance both as to residence and cultivation, beginning with the date of entry. (Hon v. Martinas, 41 L. D., 119.)

The law contemplates that the entryman shall make the land his permanent home to the exclusion of a home elsewhere; and an entry merely for the purposes of a summer home during three or four months of the year while maintaining a home elsewhere the rest of the time is invalid. (George W. Harpst, 36 L. D., 166.)

A homestead entry made with no intention of establishing a permanent, bona fide home upon the land, but merely with a view to submitting a showing sufficient to support commutation, must be canceled, notwithstanding the proof shows full technical compliance with respect to inhabitancy of the land for the period ordinarily required in commutation cases. (Gilbert Satrang, 37 L. D., 683, syllabus.)

Credit for constructive residence during official employment will not be allowed to homestead entrymen appointed to office on or after March 1, 1909. Such credit will be given only to entrymen who establish residence on their claims and are thereafter elected to office. (37 L. D., 449.)

Commutation-Residence.-The purpose of the homestead law is the donation of the public lands to actual settlers seeking to establish bona fide homes thereon, and the provision respecting commutation in no wise changes that purpose, but merely affords a means of commuting further residence to cash in meritorious cases, lawfully initiated and prosecuted to the date of commutation. (Gilbert Satrang, 37 L. D., 683, syllabus.)

Credit for constructive residence during official employment will not be allowed in the commutation of homestead entries. Commutation may be allowed only upon a showing of actual and substantially continuous presence upon the land for the required period. (Ed. Jenkins, 37 L. D., 434.)

The fact that lands may be chiefly valuable for the timber thereon does not exclude them from settlement and entry under the homestead law, but it must clearly appear that the settlement or entry was made in good faith, for the purpose of making the tract a home, and where the entryman in such case submits commutation proof and pays a price to cut short the period of residence required by the homestead law, he invites scrutiny and challenges judgment as to the good faith of his entry. (Patten v. Quackenbush, 35 L. D., 561.)

Cultivation. Cultivation is an essential requisite to compliance with the homestead law, and a hearing may be had on a charge of noncultivation, even when unaccompanied by a sufficient charge of nonresidence. (Norton v. Ackley, 29 L. D., 561.)

Under the three-year homestead law a mere breaking of the soil will not meet the terms of the statute, but such breaking or stirring of the soil must also be accompanied by planting or the sowing of seed and tillage for a crop other than native grasses. Circular of July 15, 1912 (41 L. D., 103, 105.)

The homestead law "requires not only bona fide residence upon the land, but actual cultivation. Claimant's cultivation is grossly inadequate to meet the requirements of the law, and in its inadequacy casts further doubt upon the bona fides of the residence. The cutting of wild hay from a homestead entry can not be considered seriously as cultivation of the land. This is particularly true when the part of the land from which the hay was not cut has not been used for grazing purposes; and also when the total cultivation during the life of the entry amounts to not more than half an acre planted to crops and an additional acre

Secretary of Ag

ized to list agricultural lands.

plowed. A pretense of cultivation can not satisfy the requirements of the law any more than a pretense of residence.' (Ingelev J. Glomset, 36 L. D., 255.)

The use of land for the raising of hogs is an agricultural use, and where the land is better adapted to that use than tillage of the soil, meets the requirements of the homestead law with respect to cultivation. (George Hathaway, 38 L. D., 33, syllabus.)

Cultivation must be continuous from date of entry. (Hon v. Martinas, 41 L. D., 119.)

Contest and protest.-The proviso to section 7 of the act of March 3, 1891, directing issuance of patent where two years have elapsed since issuance of final receipt in the absence of contest or protest, has no application to proceedings by the Land Department in disposing of final proof after the lapse of two years. (Mertie C. Fraganza, 40 L. D., 300.) In this case there is no individual adverse claimant, but the Government, by its Chief Executive, has claimed the land within the boundaries of said reservation for a specific public purpose (i. e. a forest reservation), excepting only the lands coming within the above category; and the Executive order, reserving the land for a specific public purpose must be held to be at least as effective upon the claims of settlers as would be the adverse claim of one who wished the land for his own use. Held, therefore, that a settler who failed to file his application for entry within three months after the plat of survey was filed in the local land office, was precluded from making entry in the presence of an intervening forestry withdrawal. (Joshua L. Smith, 31 L. D., 57; see also Hattie E. Bradley, 34 L. D., 191, 193, and Esther F. Filer, 36 L. D., 360, 363.)

A decision by the Secretary of the Interior that a telegram and letter from a special agent of the General Land Office, alleging fraud in a number of commuted entries and suggesting delay in issuing patents pending further examination, constitutes a "protest" in the meaning of the act of March 3, 1891 (26 Stat., 1099), requiring issuance of patent within two years after final receipt when no "contest or protest is pending," is not reviewable on an application for a writ of mandamus. Fisher v. United States ex rel., Grand Rapids Timber Co. (Ct. of Appeals D. C.), 40 L. D., 278.

Section 2 of the act of March 3, 1911 (36 Stat., 1084), validating certain homestead entries in national forests applies to all contests initiated under the act of May 14, 1880, prior to the forestry withdrawal, where cancellation of the entry results therefrom, regardless of whether the cancellation was procured prior or subsequent to the withdrawal. (Sante Fe Pacific R. R. Co., 39 L. D., 611.)

Miscellaneous.-The excepting clause of the Olympic National Forest proclamation ceases, to apply in behalf of a settler who fails to make entry or filing for the lands within the time allowed by law. (Arnold Wink, 31 L. D., 47.)

On the relinquishment of a homestead entry within the San Francisco Mountains Forest Reserve, the lands become a part of the forest reserve and are not open to subsequent entry. (E. S. Gosney, 29 L. D., 44.) Three-year homestead law.—See Circular of July 15, 1912. (41 L. D., 103.)

AGRICULTURAL LANDS IN NATIONAL FORESTS.

Act of June 11, 1906 (34 Stat., 233), to provide for the entry of agricultural lands within forest reserves.

The Secretary of Agriculture may, in his discretion, and he is hereby riculture author authorized, upon application or otherwise, to examine and ascertain as to the location and extent of lands within permanent or temporary forest reserves, except the following counties in the State of California, Inyo, Tulare, Kern, San Luis Obispo, Santa Barbara, Ventura, Los Angeles, San Bernardino, Orange, Riverside, and San Diego; which are chiefly valuable for agriculture, and which, in his opinion, may be occupied for agricultural purposes without injury to the forest reserves, and which are not needed for public purposes, and may list and and describe the same by metes and bounds, or otherwise, and file the bounds descrip- lists and descriptions with the Secretary of the Interior, with the request that the said lands be opened to entry in accordance with the provisions of the homestead laws and this act.

Metes

tions.

open lands to en

Lands shall be advertised.

Upon the filing of any such list or description the Secretary of the Secretary of the Interior shall declare the said lands open to homestead settlement and Interior shall entry in tracts not exceeding one hundred and sixty acres in area and try. not exceeding one mile in length, at the expiration of sixty days from the filing of the list in the land office of the district within which the lands are located, during which period the said list or description shall be prominently posted in the land office and advertised for a period of not less than four weeks in one newspaper of general circulation published in the county in which the lands are situated: Provided, That any settler actually occupying and in good faith claiming such lands for agricultural purposes prior to January first, nineteen hundred and six, and who shall not have abandoned the same, and the person, if qualified to make a homestead entry, upon whose application the land proposed to be entered was examined and listed, shall, each in the order named, have a preference right of settlement and entry: Provided further, That any entryman desiring to obtain patent to any lands described by metes and bounds entered by him under the provisions of this act shall, within five years of the date of making settlement, file, with the required proof of residence and cultivation, a plat and field notes of the lands entered, made by or under the direction of the notes to be filed. United States surveyor general, showing accurately the boundaries of such lands, which shall be distinctly marked by monuments on the ground, and by posting a copy of such plat, together with a notice of the time and place of offering proof, in a conspicuous place on the land posted. embraced in such plat during the period prescribed by law for the publication of his notice of intention to offer proof, and that a copy of such plat and field notes shall also be kept posted in the office of the register of the land office for the land district in which such lands are situated for a like period; and further, that any agricultural lands within forest reserves may, at the discretion of the Secretary, be surveyed by metes and bounds, and that no lands entered under the survey by metes provisions of this act shall be patented under the commutation pro- Com mutation visions of the homestead laws, but settlers, upon final proof, shall have clause not applicredit for the period of their actual residence upon the lands covered by cable.

their entries.

Plat and field

Notices shall be

Secretary may

and bounds.

SEC. 2. That settlers upon lands chiefly valuable for agriculture Additional within forest reserves on January first, nineteen hundred and six, who right given to actual settlers have already exercised or lost their homestead privilege, but are other- prior to Jan. 1, wise competent to enter lands under the homestead laws, are hereby 1906. granted an additional homestead right of entry for the purposes of this act only, and such settlers must otherwise comply with the provisions of the homestead law, and in addition thereto must pay two dollars and fifty cents per acre for lands entered under the provisions of this section, such payment to be made at the time of making final proof on such lands.

quartz and lode

SEC. 3. That all entries under this act in the Black Hills Forest Entries in Black Reserve shall be subject to the quartz or lode mining laws of the United Hills subject to States, and the laws and regulations permitting the location, appro- mining law. priation, and use of the waters within the said forest reserves for mining, irrigation, and other purposes; and no titles acquired to agricultural lands in said Black Hills Forest Reserve under this act shall vest in the Limitation conpatentee any riparian rights to any stream or streams of flowing water rights in Black cerning within said reserve; and that such limitation of title shall be expressed Hills. in the patents for the lands covered by such entries.

water

SEC. 4. That no homestead settlements or entries shall be allowed Lawrence and in that portion of the Black Hills Forest Reserve in Lawrence and Pennington Counties exceptPennington Counties in South Dakota [except the following described ed. townships in the Black Hills Forest Reserve, in Pennington County, South Dakota, to wit: Townships one north, one east; two north, one east; one north, two east; two north, two east; one south, one east; two south, one east; one south, two east; and two south, two east, Black Hills meridian], except to persons occupying lands therein prior to January first, nineteen hundred and six, and the provisions of this act shall apply to the said counties in said reserve only so far as is necessary to give and perfect title of such settlers or occupants to lands chiefly valuable for agriculture therein occupied or claimed by them

Actual settlers before 1, 1906.

Jan.

Settlement be

trespass.

prior to the said date, and all homestead entries under this act in said counties in said reserve shall be described by metes and bounds survey. (Section 4 is amended to read as above by the act of February 8, 1907 (34 Stat. 883).)

SEC. 5. That nothing herein contained shall be held to authorize any fore opening is future settlement on any lands within forest reserves until such lands have been opened to settlement as provided in this act, or to in any way impair the legal rights of any bona fide homestead settler who has or shall establish residence upon public lands prior to their inclusion within a forest reserve.

Surveys by Forest Service.

(The act of May 30, 1908, 35 Stat., 554, provides that the above act "be amended by striking out of section 1 the following words: 'Except the following counties in the State of California: Inyo, Tulare, Kern, Ventura, Los Angeles, San Bernardino, Orange, Riverside, and San Diego.' It will be noted that while the excepting words are stricken out the names of San Luis Obispo and Santa Barbara Counties are not stricken out).

Certain lands in Lawrence and Pennington Counties, S. Dak., excepted from the operation of section 4 of the act of June 11, 1906, but continued subject to all other provisions of said act. (Act July 3, 1912, 37 Stat., 188.)

Agricultural appropriation act of August 10, 1912 (37 Stat. 269).

For the expenditure under the direction of the Secretary of Agriculture for survey and listing of lands within forest reserves chiefly valuable for agriculture and describing the same by metes and bounds, or otherwise, as required by the act of June eleventh, nineteen hundred and six, and the act of March third, eighteen hundred and ninety-nine, thirty-five thousand dollars: Provided, however, That any such survey and the plat and field notes thereof paid for out of this appropriation shall be made by an employee of the Forest Service under the direction Listed lands re- of the United States Surveyor General, but no land listed under the main in forest un- act of June eleventh, nineteen hundred and six, shall pass from the til patented. forest until patent issues.

Segregation of

lands.

Agricultural appropriation act of August 10, 1912 (37 Stat. 269).

That the Secretary of Agriculture is hereby directed and required agricultural to select, classify, and segregate, as soon as practicable, all lands within the boundaries of National Forests that may be opened to settlement and entry under the homestead laws applicable to the National Forests, and the sum of twenty-five thousand dollars is hereby appropriated for the purposes aforesaid.

DECISIONS RELATING TO THE LISTING OF AGRICULTURAL LANDS FOR
ENTRY-ACT JUNE 11, 1906 (34 STAT., 233).

The words "chiefly valuable for agriculture," as used in this statute mean merely more valuable for agriculture than for forestry purposes and a listing of the lands involves no determination as to their mineral or nonmineral character. (1 Sol. Op., 188.)

In the act of June 11, 1906, authority to list agricultural lands "not needed for public purposes" means lands not needed for the governmental uses and purposes of the United States and does not extend to a need of the land for summer homes, camping and other methods of recreation. (Memorandum of Solicitor to Secretary of Agriculture, Nov. 8, 1911.)

Lands included in a temporary withdrawal with a view to the creation or enlargement of a National Forest and which are chiefly valuable for agriculture may be listed for entry under this act. (28 Op. Atty. Gen., 424, 522.)

The preference right of settlement and entry given by the act of June 11, 1906, to the person on whose application agricultural lands have been listed for entry with the Secretary of the Interior, ceases upon the elimination of the lands from the National Forest by presidential proclamation or Executive order. "As soon as such lands are restored to the public domain they lose entirely the National Forest status and the act

of June 11, 1906, has no application thereto." (Letter Secretary of the Interior to Secretary of Agriculture, Mar. 16, 1912.)

*

*

*

The decision last above announced is not affected by the provision in the Agricultural Appropriation Act of August 10, 1912 (37 Stat. 269), that "no lands listed shall pass from the forest until patent issues." Taken in connection with the words preceding them, these words mean only that the lands shall not pass by virtue of the listing, and they do not limit the power of the President to eliminate lands by proclamation or Executive order. (Solicitor to the Forester, Aug. 31, 1912.)

Prior to the enactment of the provision quoted in the preceding paragraph, the Comptroller of the Treasury and the Solicitor had both made the following ruling:

Lands once listed under the act of June 11, are segregated from the National Forest and the Forest Service is not authorized to expend its appropriations for surveying the same. (Opinion of Comp. Treas., Oct. 21, 1910 (unpublished); 1 Sol. Op., 363.)

Lands within a National Forest listed under the act of June 11, 1906, are not subject to disposition under the enlarged homestead act of February 19, 1909 (35 Stat. 639). (Burtis F. Oatman, 39 L. D. 604).

MINING LAWS.

BASIC PROVISIONS OF THE MINING LAWS MOST GENERALLY AFFECTING
FOREST-SERVICE WORK.

UNITED STATES REVISED STATUTES.

SEC. 2318. In all cases lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law.

Mineral land reserved.

Mineral lands

SEC. 2319. All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to open to purchase be free and open to exploration and purchase, and the lands in which by citizens. they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local curtoms or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.

veins or lodes.

SEC. 2320. Mining claims upon veins or lodes of quartz or other rocks. Length of minin place bearing gold, silver, cinnabar, lead, tin, copper, or other val- ing claims upon uable deposits, heretofore located, shall be governed as to length along the vein or lode by the customs, regulations, and laws in force at the date of their location. A mining claim located after the tenth day of May, eighteen hundred and seventy-two, whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode; but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located. No claim shall extend more than three hundred feet on each side of the middle of the vein at the surface, nor shall any claim be limited by any mining regulation to less than twenty-five feet on each side of the middle of the vein at the surface, except where adverse rights existing on the tenth day of May, eighteen hundred and seventy-two, render such limitation necessary. The end lines of each claim shall be parallel to each other.

Locators' rights of possession and

SEC. 2322. The locators of all mining locations heretofore made or which shall hereafter be made, on any mineral vein, lode, or ledge, enjoyment. situated on the public domain, their heirs and assigns, where no adverse claim exists on the tenth day of May, eighteen hundred and seventytwo, so long as they comply with the laws of the United States, and with State, Territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies 66777°-13-3