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OSAGE TRUST LANDS-PUBLIC SALE.

INSTRUCTIONS.

Commissioner of the General Land Office to the register and receiver at Garden City, Kansas, February 15, 1892.

Under date of January 9th last, the Hon. Secretary of the Interior, approved a list for sale of lands embraced in entries made upon the Osage trust and diminished reserve lands, in which the claimants failed to pay the second, third and fourth installments of the purchase money. I inclose herewith a list of said lands, which you will proceed to offer at public auction, (to the highest bidder, at a price not less than that fixed by law and in quantities not exceeding one hundred and sixty acres to any one purchaser), in the order in which they appear on said list, on a day and at an hour which will be specified in a notice thereof, which you will give by advertisement, which will be printed once a week for six consecutive weeks in two weekly newspapers of general circulation in your land district, which you will designate.

You will insert in each notice the earliest date most convenient to you after the expiration of the period of publication. You will, after the offering, make a report of the sale giving the descriptions of the tracts and indicating whether sold or not, if the latter, the reason therefor whether for want of a bid or other cause. You will forward copies of the published notice attached to the several affidavits of the publishers of the newspapers selected, showing the date of the first and last publication, and reciting the fact that the notice appeared in a regular issue of the paper once each week for the specified time. The claimants, mortgagees, or present owners, may at any time before the day fixed for the offering pay the full amount due, together with the accumulated interest, and the pro rata share of the expenses, in which case the particular tract or tracts so paid for will be withdrawn from the offering.

Before proceeding to offer each tract, you will endeavor to ascertain by calling out, if a tax sale purchaser of that tract, or his or her legal representative, is present, if so you will allow such party or parties the privilege of paying the balance of the purchase money which remains unpaid, and accumulated interest, together with the pro rata share of the expenses of the sale. In all such cases last mentioned, the land will not be sold, but you will issue a certificate to the party or parties entitled thereto, in their own name just the same as if he was the original settler upon the tract in question, endorsing across the face of such certificates, in red ink, a reference to the fourth section of the act approved May 28, 1880, as your authority therefor. All certificates and receipts will bear the current number and date for the month in which the sale occurs, and will be reported by you in your abstracts of sales made of the Osage trust and diminished reserve lands.

Each of you will be allowed the same compensation as allowed by law in other cases of sale of public lands. All costs of advertising and

other expenses incident to said sale must be charged to and paid out of the fund arising from said sale. The net proceeds of the sale will be deposited by the receiver, after deducting all expenses, to the credit of the proper Indian fund. See section 5, act of May 28, 1880. Approved:

JOHN W. NOBLE,

Secretary.

MINING CLAIM-MILL SITE-IMPROVEMENTS.

SATISFACTION EXTENSION MILL SITE.

The erection and maintenance in good faith of dwelling houses for the occupancy of workmen employed for purposes in connection with a mill is such a use and occupancy of the land as will justify the allowance of a mill site entry thereof. First Assistant Secretary Chandler to the Commissioner of the General Land Office, February 11, 1892.

On October 16, 1885, mineral entry No. 247, lots No. 40 A, and 40 B, was made at the Las Cruces land office, New Mexico, for the mining claim known as the "First Extension of the Satisfaction Mine," and the "Satisfaction Extension Mill Site."

The papers were transmitted to your office, and by your letter of June 11, 1887, to the local officers, you said,

The mill site survey No. 40 B is claimed in connection with the lode survey No. 40 A, but there is nothing in the record showing that the same is used or occupied for mining or milling purposes in connection therewith. Proper evidence showing the use or occupancy of said mill site under section 2337 U. S. Rev. Stats., should be furnished.

Said section 2337 provides that,

Where non-mineral land not contiguous to the vein or lode is used or occupied by the proprietor of such vein or lode for mining or milling purposes, such non-adjacent surface-ground may be embraced and included in an application for a patent for such vein or lode.

In response to your letter the affidavit of the agent was transmitted wherein he states,

The said mill-site lays between the stamp-mill owned and operated by said applicant and the Mimbres river from which the water supply for running said mill is drawn and conducted, and that for said purpose said applicant has constructed and at said time was maintaining an acequia and ditch leading from said mill to said river, and that said ditch traverses the entire width of said mill site in its only practicable course from said river to said mill, and that the water thus conducted is necessary to the running of said mill, and that said mill is owned and used by said applicant for the purpose of reducing the ore taken from said lode claim: Affiant further says that said applicant has erected and now owns two houses on said millsite which are used and occupied by employees of said applicant in the keeping up of said ditch and for other purposes in connection with said mill.

By your letter of July 30, 1888, you held that such a use and occupation was not contemplated by said section, and held the entry for cancellation as to the area embraced in the mill-site.

An appeal now brings the case before me.

In the case of Charles Lennig (5 L. D., 190, 192), Secretary Lamar, in construing said section 2337, says,

The proprietor of a lode undoubtedly 'uses' non-contiguous land "for mining or milling purposes" when he has a quartz mill or reduction works upon it, or when in any other manner he employs it in connection with mining or milling operations. For example, if he uses it for depositing "tailings", or storing ores, or for shops, or houses for his workmen, or for collecting water to run his quartz mill, I think it clear that he would be using it for mining or milling purposes.

As it appears that the applicant owns two houses on said mill-site occupied by his employees for purposes in connection with said mill, he uses the land for mining or milling purposes within the meaning of the statute as above construed. The erection of dwelling houses on the mill-site is clearly a very substantial use and improvement of the land. They become a part of the realty, and would pass by a conveyance of the real estate, and when such houses are erected for workmen employed in connection with the mill, the land is used for milling purposes.

In Sierra Grande Mining Company v. Crawford (11 L. D., 338), it was held that the use of land for the maintenance of pumping works necessary to the operation of a lode mine was such a use as would authorize entry of the land as a mill site. The foregoing citation from the Lennig case is quoted, and it is said,

Here we find actual occupation of the land, with lasting and valuable improvements. It is true the company consumes only the water, but it occupies and uses the land in connection with its lode mine, and such use is necessary to the operating of the mine.

This language applies to the case under consideration.

In the case of the Gold Springs and Denver City Mill Site (13 L. D., 175), a tank, a spring house and a stone cabin had been erected on the mill-site, and such use was held sufficient. It is said, page 177,

Lasting improvements have been made on the land embraced in the mill site, indicating good faith. There is more than the mere use of water-the mill-site itself is improved and used, as above seen, in connection with the mine.

So in the case at bar it may be said-"there is more than the mere use of water." The mill-site itself is improved and used in connection with the mine by lasting improvements indicating good faith. Your judgment is reversed.

ROUGEOT v. WEIR.

Motion for the review of departmental decision rendered September 5, 1891, 13 L. D., 242, denied by Secretary Noble, February 12, 1892.

SWAMP LAND-REPORT OF SPECIAL AGENT.

STATE OF FLORIDA.

The claim of a State for swamp land should not be rejected on the report of a special agent alone, but such report may be properly made the basis of a further investigation as to the character of the land.

Secretary Noble to the Commissioner of the General Land Office, February 12, 1892.

I have considered the case arising upon the appeal of the State of Florida, from your decision of August 14, 1890, rejecting the claim of the State of Florida to certain lands therein described. It appears that 1155 tracts are involved, aggregating about 150,000 acres.

Counsel for the State alleges, in substance, that you were in error in holding the list for rejection solely on the report of a special agent, without regard to the field-notes, and without any testimony on the part of the State.

Your decision is as follows:

REGISTER AND RECEIVER,

Gainesville, Florida,

SIRS: Under date of the 4th instant, Mr. R. E. Johnston, special agent of this office, made a report of his examination in the field of certain lands in Florida claimed as inuring to the State under the swamp-land grant, which report shows that the tracts hereinafter described are not of the character contemplated by the grant, viz: . . The claim of the State to the tracts of land above

described is therefore held for rejection, subject to appeal within sixty days. This language would indicate that the claim was held for rejection solely upon the report of the special agent.

Counsel for the State is correct in his contention that rejection upon this ground was erroneous.

In the case of Cass county, Illinois (10 L. D., 22), the Department held:

The finding and report of the special agent is not conclusive against the State, in the absence of final testimony by the State.

In the case of Champaign county, Illinois (10 L. D., 121), the second allegation of error was:

The report of the United States special agent is not binding on the State; and this report constitutes the only evidence on which the Commissioner bases his authority to hold said tracts for rejection.

In that case the Department said:

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The second objection, if supported by the facts in the case, is a valid one and must be sustained Said report is not properly evidence in the case; but if the facts set forth therein are such as to justify a doubt as to the correctness of the proof submitted, such report may properly be made the basis for a further investigation by your office Upon this point the case

will be returned to your office for disposition, etc.

The decisions above quoted from are in cases where the State applied for indemnity for land sold by the United States, while in the case at bar the State asks for a certification of the land itself; but the effect of a report of a special agent on the character of the land is the same in the one case as in the other.

In the absence of any evidence on the part of the State, and as it appears that no opportunity has been afforded it to produce such evidence, I can not concur in your conclusion rejecting its claim, This, however, is not to be construed as confirming said claim but simply as refusing to render a decision before being placed in possession of such facts as the regulations require shall be furnished. The papers are, therefore, returned, in order that the State may be afforded an opportunity to support its claim in accordance with departmental regulations, as was done in the cases hereinbefore cited (Cass county, 10 L. D., 22; Champaign county, ib., 121).

CERTIORARI-APPEAL-PROCEEDINGS ON FINAL PROOF.

REAM V. LARSON.

An application for certiorari must be accompanied by a copy of the decision denying the right of appeal.

The right of appeal from the Commissioner's decision is lost, where the appeal from the local office does not contain a specification of errors and is dismissed for that

reason.

Certiorari will not be granted where the right of appeal is lost through the negligence of the applicant's attorney.

A protest against final proof raises an issue that may be properly tried before the local office, and on appeal therefrom the Commissioner is vested with due jurisdiction over the case.

Proceedings on final proof can not be treated as ex parte, where a protest is filed and evidence furnished in support of the charges therein made.

Secretary Noble to the Commissioner of the General Land Office, February 15, 1892.

On July 23, 1881, Frank Larson made homestead entry No. 358, for the Sof the SE, and the S of the SW of Section 14, T. 14 S., R. 44 E., Blackfoot, Idaho.

He gave notice that he would submit final proof on said entry on the 31st day of July, 1888, before the clerk of the district court at Paris, Idaho. When he appeared before said clerk to submit proof, he was met by William D. Ream, who filed with said clerk the following paper: BEAR LAKE COUNTY, IDAHO, Paris July 31, 1888. In the matter of Final Proof on Homestead Entry of Frank Larson. W. N. B. Shepherd, Deputy Clerk United States Court

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