Entry of coal lands. Preemption of coal lands. The mineral springs act of February 28, 1899, extends to national forests in Alaska. (2 Sol. Op., 870.) National forest lands in Alaska surrounding hot or mineral springs, and which have been withdrawn by the President under the act of June 25, 1910, can not be leased under the act of February 28, 1899, or their use permitted under the act of June 4, 1897, while the withdrawal remains in force. (2 Sol. Op., 870.) COAL-LAND LAWS. BASIC PROVISIONS. UNITED STATES REVISED STATUTES. SEC. 2347. Every person above the age of twenty-one years, who is a citizen of the United States, or who has declared his intention to become such, or any association of persons severally qualified as above, shall, upon application to the register of the proper land office, have the right to enter, by legal subdivisions, any quantity of vacant coal lands of the United States not otherwise appropriated or reserved by competent authority not exceeding one hundred and sixty acres to such individual person, or three hundred and twenty acres to such association, upon payment to the receiver of not less than ten dollars per acre for such lands where the same shall be situated more than fifteen miles from any completed railroad, and not less than twenty dollars per acre for such lands as shall be within fifteen miles of such road. SEC. 2348. Any person or association of persons severally qualified, as above provided, who have opened and improved, or shall hereafter open and improve, any coal mine or mines upon the public lands, and shall be in actual possession of the same, shall be entitled to a preference right of entry, under the preceding section, of the mines so opened and improved: Provided, That when any association of not less than four persons, severally qualified as above provided, shall have expended not less than five thousand dollars in working and improving any such mine or mines, such association may enter not exceeding six hundred and forty acres, including such mining improvements. Preemption SEC. 2349. All claims under the preceding section must be presented to be presented to the register of the proper land district within sixty days after the within 60 days, date of actual possession and the commencement of improvements on claims of coal land etc. the land, by the filing of a declaratory statement therefor; but when the township plat is not on file at the date of such improvement, filing must be made within sixty days from the receipt of such plat at the district office; and where the improvements shall have been made prior to the expiration of three months from the third day of March, eighteen hundred and seventy-three, sixty days from the expiration of such three months shall be allowed for the filing of a declaratory statement, and no sale under the provisions of this section shall be allowed until the expiration of six months from the third day of March, eighteen hundred and seventy-three. SEC. 2350. The three preceding sections shall be held to authorize only one entry by the same person or association of persons; and no association of persons any member of which shall have taken the benefit of such sections, either as an individual or as a member of any other association, shall enter or hold any other lands under the provisions thereof; and no member of any association which shall have taken the benefit of such sections shall enter or hold any other lands under their provisions; and all persons claiming under section twenty-three hundred and forty-eight shall be required to prove their respective rights and pay for the lands filed upon within one year from the time prescribed for filing their respective claims; and upon failure to file the proper notice, or to pay for the land within the required period, the same shall be subject to entry by any other qualified applicant. SEC. 2351. In case of conflicting claims upon coal-lands where the improvements shall be commenced, after the third day of March, eighteen hundred and seventy-three, priority of possession and improvement, followed by proper filing and continued good faith, shall determine the preference-right to purchase. And also where improvements have already been made prior to the third day of March, eighteen hundred and seventy-three, division of the land claimed may be made by legal subdivisions, to include, as near as may be, the valuable improvements of the respective parties. The Commissioner of the General Land Office is authorized to issue all needful rules and regulations for carrying into effect the provisions of this and the four preceding sections. SEC. 2352. Nothing in the five preceding sections shall be construed Rights reserved. to destroy or impair any rights which may have attached prior to the third day of March, eighteen hundred and seventy-three, or to authorize the sale of lands valuable for mines of gold, silver, or copper. SURFACE PATENTS ON GOOD-FAITH ENTRIES OF COAL LANDS. Act of March 3, 1909 (35 Stat., 844), for the protection of the surface rights of entrymen. Act of June 22, 1910 (36 Stat., 583), to provide for agricultural entry of coal lands. COAL-LAND LAWS EXTENDED TO ALASKA. Act of June 6, 1900 (31 Stat., 658). AMENDMENTS TO COAL-LAND LAWS IN ALASKA. Act of April 28, 1904 (33 Stat., 525). Act of May 28, 1908 (35 Stat., 424). DECISIONS UNDER THE COAL-LAND LAWS. COAL LANDS. Coal lands are mineral lands within the meaning of the act of June 4, 1897, and as such are subject to entry, when found in forest reserves, the same as other mineral lands within such reserves. (T. P. Crowder, 30 L. D., 92; see also Brown v. N. P. R. R. Co., 31 L. D., 29.) Citizens in need of coal for their own use, who have not initiated claims under coal-land laws, have no authority to take any coal from National Forest lands, either with or without a permit from the Secretary of Agriculture. (1 Sol. Op., 477.) The act of April 28, 1904 (33 Stat., 525), amending the coal-land laws, as theretofore extended to Alaska, did not remove the restriction as to the quantity of such lands enterable by one person or association, but merely provided a method by which unsurveyed coal lands in Alaska could be acquired subject to the limitations of the general coalland laws. (The Cunningham claims (United States v. Schofield et al.); decision of Commissioner of the General Land Office of June 21, 1911, affirmed and adopted by Interior Department, Aug. 29, 1912.) Open cuts and tunnels made merely for the purpose of ascertaining whether a group of claims contains coal and not with the intent to develop operating mines do not satisfy the statutory requirement as to opening and improving. (Same.) Persons who file declaratory statements and then abandon them without valid cause or excuse are disqualified to make new entries. (Same.) The benefits of the act of May 28, 1908, authorizing the consolidation of claims or locations of coal lands in Alaska, can be shared only by persons who made such locations in good faith-that is, honestly and lawfully-prior to November 16, 1906, in their own interests individually, without fraud, collusion, or deceit, or any purpose to violate any provision of the law. (Op. Atty. Gen., 38 L. D., 86.) An individual or association expending time and money in an honest effort to open and develop coal deposits is not a trespasser and is entitled to the coal extracted as an incident to the reasonable prosecution of the work. (Ghost v. United States (C. C. A. Eighth Circuit), 168 Fed., 841.) Surveyed tim ber and stone be Existing claims preserved. It is unlawful for a corporation, some of whose stockholders have made coal entries, to acquire coal lands in excess of 320 acres as the result of a scheme whereby some of its officers and employees make entries in their own names but for its benefit and at its expense, and, after securing patents, convey the lands to the corporation. An incorporated company is an "association of persons," in the meaning of the coal-land laws. (United States v. Trinidad Coal Co., 137 U. S. 160.) TIMBER AND STONE LAWS. Act of June 3, 1878 (20 Stat., 89) for the sale of timberlands. That surveyed public lands of the United States within the (public land 1) States, not included within military, Indian, or other reservations of the United States, valuable chiefly for timber, but unfit for cultivation, and which have not been offered at public sale,2 according to law, may be sold to citizens of the United States, or persons who have declared their intention to become such, in quantities not exceeding one hundred and sixty acres to any one person or association of persons, at the minimum price of two dollars and fifty cents per acre; and lands valuable chiefly for stone may be sold on the same terms as timber lands: Provided, That nothing herein contained shall defeat or impair any bona fide claim under any law of the United States, or authorize the sale of any mining claim, or the improvements of any bona fide settler, or lands containing gold, silver, cinnabar, copper, or coal, or lands selected by the said States under any law of the United States donating lands for internal improvements, education, or other purposes: And provided further, That none of the rights conferred by the act approved July twenty-sixth, eighteen hundred and sixty-six, entitled "An act granting the right of way to ditch and canal owners over the public lands, and for other purposes,” shall be abrogated by Patents to be this act; and all patents granted shall be subject to any vested and subject to rights accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under and by the provisions of said act; and such rights shall be expressly reserved in any patent issued under this act. of way. Mode of procedure. SEC. 2. That any person desiring to avail himself of the provisions of this act shall file with the register of the proper district a written statement in duplicate, one of which is to be transmitted to the General Land Office, designating by legal subdivisions the particular tract of land he desires to purchase, setting forth that the same is unfit for cultivation, and valuable chiefly for its timber or stone; that it is uninhabited; contains no mining or other improvements, except for ditch or canal purposes, where any such do exist, save such as were made by or belonged to the applicant, nor, as deponent verily believes, any valuable deposit of gold, silver, cinnabar, copper, or coal; that deponent has made no other application under this act; that he does not apply to purchase the same on speculation, but in good faith to appropriate it to his own exclusive use and benefit, and that he has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which he might acquire from the Government of the United States should inure, in whole or in part, to the benefit of any person except himself; which statement must be verified by the oath of the applicant before the register or the receiver of the land office within the district where the land is situated; and if any person taking such oath shall swear falsely in the premises, he shall be subject to all the pains and penalties of perjury, and shall forfeit the money which he may have paid for said lands, and all right and title to the same; and any grant or conveyance which he may have made, except in the hands of bona fide purchasers, shall be null and void. SEC. 3. That upon the filing of said statement, as provided in the second section of this act, the register of the land office shall post a notice of such application, embracing a description of the land by legal 1 Amendment of Aug. 4, 1892 (27 Stat., 348). 2 The distinction between offered and unoffered lands was abolished by the act of May 18, 1898 (30 Stat., 418), as to homestead and timber and stone entries. subdivisions, in his office, for a period of sixty days, and shall furnish the applicant a copy of the same for publication, at the expense of such applicant, in a newspaper published nearest the location of the premises, for a like period of time; and after the expiration of said sixty days, if no adverse claim shall have been filed, the person desiring to purchase shall furnish to the register of the land office satisfactory evidence, first, that said notice of the application prepared by the register as aforesaid was duly published in a newspaper as herein required; secondly, that the land is of the character contemplated in this act, unoccupied and without improvements, other than those excepted, either mining or agricultural, and that it apparently contains no valuable deposits of gold, silver, cinnabar, copper, or coal; and upon payment to the proper officer of the purchase money of said land, together with the fees of the register and receiver, as provided for in case of mining claims in the twelfth section of the act approved May tenth, eighteen hundred and seventy-two, the applicant may be permitted to enter said tract, and, on the transmission to the General Land Office of the papers and testimony in the case, a patent shall issue thereon: Provided, That any person having a valid claim to any portion of the land may object, in writing, to the issuance of a patent to lands so held by him, stating the nature of his claim thereto; and evidence shall be taken, and the merits of said objection shall be determined by the officers of the land office, subject to appeal, as in other land cases. Effect shall be given to the foregoing provisions of this act by regulations to be prescribed by the Commissioner of the General Land Office. * * * LIMITATION TO 320 ACRES UNDER ALL LAND LAWS EXCEPTING MINERAL LAWS. Act of August 30, 1890 (26 Stat., 391). Act of March 3, 1891, section 17 (26 Stat., 1095). DECISIONS UNDER THE TIMBER AND STONE Laws. Regulations under the Timber and Stone Law including method of appraisement (37 L. D., 289). An Executive order reserving lands for forestry purposes has the same effect, as against an application to purchase under the timber and stone laws, as adverse claim of an individual. (Hattie E. Bradley, 34 L. D., 191.) Where an applicant fails to submit proof on the day fixed in the published notice, or, in case of accident or unavoidable delay causing default, within 10 days thereafter, a forestry withdrawal theretofore made immediately attaches and becomes effective on the land regardless of the fact that the applicant, within such 10-day period, has filed application to readvertise notice of intention to submit proof. (Same; see also M. Edith Curtis, 33 L. D., 265.) An agreement or contract made by a timber and stone entryman, prior to final proof and the issuance of certificate for the sale of the timber on the land, is a violation of the provisions against speculative entry for the benefit of another. (Granville M. Boyer, 34 L. D., 581.) After full payment of the purchase price and the issuance of final certificate under the timber and stone laws, the land department is without jurisdiction except to determine whether the land was subject to entry and whether the entryman was qualified to make the entry and had in all respects complied with the law; and a subsequent withdrawal for power purposes is unauthorized and does not warrant the withholding of patent. (Charles W. Pelham, 39 L. D., 201.) The entire management of these entries was in the hands of an agent of the Martin-Alexander Co. It furnished the moneys both for the purchase prices, and all expenses, and it is not easy to believe that it did all this on a mere expectation that after the entries had been made, it would purchase the timber. It is a much more reasonable conclusion that it had an understanding with the parties making the entries respecting purchases and prices. We agree with the Court of Appeals that the testimony points strongly to the fact that the * * * Who may enter. gation. entries were in pursuance of an understanding or agreement with the Martin-Alexander Co. that, as it was advancing all the money, the entryman should convey to it the standing timber at a fixed price. (United States v. Detroit Lumber Co., 200 U. S., 321.) The act does not in any respect limit the domain which the purchaser has over the land after it is purchased from the Government, or restrict, in the slightest, his power of alienation. All that it denounces is a prior agreement, the acting for another in the purchase. If, when the title passed from the Government, no one save the purchaser has any claim for it, the act is satisfied. Montgomery might rightfully come or send into that vicinity and make known generally or to individuals a willingness to buy timberland at a price in excess of that which it would cost to obtain it from the Government, and any person knowing of that offer might rightfully come to the land office and make application and purchase a timber tract from the Government. (United States v. Budd, 144 U. S., 154.) A person desiring to purchase a large tract of timberlands of the United States may lawfully express such desire to another, and contract with him to purchase the lands and advance money to enable the seller to acquire the land from the entryman, and he is not bound to inquire into the method by which such seller acquires the title, nor chargeable with any fraud therein which would render the patent subject to cancellation, of which he has no actual knowledge. (U. S. v. Barber Lumber Co. (C. C. A.), 194 Fed., 24.) To warrant the cancellation of a patent for lands on account of fraud, the evidence must be clear, unequivocal, and convincing, and it can not be done on a bare preponderance of evidence which leaves the issue in doubt. (Idem.) Application under the timber and stone act (sworn statement) must be based on a personal examination of the land and not made on information and belief or by agent. (Ness v. Fisher, 223 U. S., 683; see also case of Frank L. Chambers et al., 40 L. D., 85.) Section 1 of the act of March 3, 1911, authorizing the reinstatement of homestead entries canceled or relinquished because of the erroneous allowance of such entries after the withdrawal of lands for national forest purposes makes no provision for the reinstatement of canceled timber and stone entries. (Albert L. Knight, 41 L. D., 261:) DESERT-LAND LAWS. Act March 3, 1877 (19 Stat., 377). That it shall be lawful for any citizen of the United States, or any person of requisite age "who may be entitled to become a citizen, and who has filed his declaration to become such" and upon payment of twenty-five cents per acre-to file a declaration under oath with the register and the receiver of the land district in which any desert land is situated, that he intends to reclaim a tract of desert land not exceeding one section,1 by conducting water upon the same, within the period Water for irri- of three years thereafter: Provided, however, That the right to the use of water by the person so conducting the same, on or to any tract of desert land of six hundred and forty acres shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands, and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes subject to existing rights. Said declaration shall describe particularly said section of land if surveyed, and, if unsurveyed, shall patent describe the same as nearly as possible without a survey. At any time within the period of three years 2 after filing said declaration, upon making satisfactory proof to the register and receiver of the reclamation of said tract of land in the manner aforesaid, and upon When issues. 1 Limited to 320 acres by act next following, section 7. |