This right is personal and can not be transferred to another, nor can the transfer provided for in the act be made through the intervention of an agent or attorney, and the period within which this right must be exercised is limited to one year from the date of the passage of the act. By sections 18, 19, 20, and 21 of the act of Congress approved March 3, 1891, entitled "An act to repeal timber-culture laws, and for other purposes," the general features of the act of Congress approved March 3, 1875, granting the right of way to railroads, are extended, upon certain conditions, to any canal or ditch company formed for the purpose of irrigation and duly organized under the laws of any State or Territory. This comprises the legislation during the year affecting matters over which this division has control. Proper instructions have been issued under these acts for the guidance of the local offices and the information of the public generally. DEPARTMENTAL ACTION. During the month of August, 1887, the department revoked all orders previously given for the reservation of lands within the indemnity limits of railroad grants, with certain exceptions where it was thought that the language of the acts making these grants contemplated the withdrawal of such lands. By the fourth section of the forfeiture act approved September 29, 1890, all such acts were repealed, in so far as they require the Secretary of the Interior to reserve any lands but those within the primary limits, and, after due notice to the companies to show cause, all lands under withdrawals heretofore made and held for indemnity purposes, under the grants to the following companies, were ordered to be restored to the public domain and opened to settlement and entry, viz: St. Paul and Sioux City Railroad Company. St. Paul, Stillwater and Taylor's Falls Railroad Company. St. Paul and Northern Pacific Railroad Company. Sioux City and St. Paul Railroad Company. St. Paul, Minneapolis and Manitoba Railway Company. Hastings and Dakota Railroad Company. Chicago, Milwaukee and St. Paul Railroad Company. The orders of withdrawal of indemnity lands are no longer any bar to settlement and entry, and in no case are such lands now held in a state of reservation to await the pleasure of the company in making its selections in such limits, except in the matter of the grant for the Gulf and Ship Island Railroad Company. The orders of withdrawal of indemnity lands on account of this grant were revoked by the department August 15, 1887, and the lands were subsequently restored. Its grant for that portion of the road north of Hattiesburg was forfeited by the act of Congress approved September 29, 1890, while that south of said point was saved from forfeiture for but one year, in which time it will be necessary that the road be constructed to Hattiesburg in order to earn that portion of the grant. Upon the application of the company the department, under date of March 20, 1891, directed that the even sections within the indemnity limits south of Hattiesburg be again withdrawn. COURT OPINIONS. During the past year several cases have been decided by the Supreme Court respecting the rights of certain railroads to lands claimed under grants made by Congress to aid in their construction, to which I deem it advisable to make brief reference. In the case of the St. Paul, Minneapolis and Manitoba Railway Company v. Phelps(137 U. S., 528), it was held that the grant of lands to the Territory of Minnesota by the act of March 3, 1857 (11 Stats., 195), is not confined to the boundaries of the present State of Minnesota. In the administration of these grants the general policy has been to restrain a grant of land made to a State in aid of railways to lands within such State. As a consequence of said decision large bodies of lands upon both the main and branch lines of said road, comprising parts of what are now the States of North and South Dakota, are included in the limits of the grants for said road as successor of the State of Minnesota. No right in the company to such lands having been recognized prior to the decision referred to, the greater portion of the lands included upon the extensions have been disposed of under the public land laws, and in some cases thriving settlements have grown based upon the titles given. Some of the settlers, and those claiming under them, may be protected under the decision of the Supreme Court in the case of said company against Greenalgh (139 U. S., 19), which holds that the act of June 22, 1874 (18 Stats., 203), extending the time for the completion of its roads to March 3, 1876, upon the condition that all rights of actual settlers and their grantees who have heretofore resided on any of said lands prior to the passage of this act, or who otherwise have legal rights in any of such lands, shall be saved and secured to such settlers or other such persons in all respects the same as if said lands have never been granted to aid in the construction of the said lines of railroad, is presumed, in absence of proof to the contrary, to have been accepted by the company, and that it has relinquished all claim to the lands thus settled and occupied. The greater number of the entries allowed for these lands were made subsequent to the passage of said act, and these parties would seem to be at the mercy of the company, unless, through some arrangement, the company is induced to take other lands in lieu of such as have been disposed of. Under a resolution passed by the Senate during the last session of Congress, the department is now engaged in a negotiation with the company, with a view to such arrangement. Any action taken will, however, be subject to the approval of Congress. The case of the St. Paul and Pacific Railroad Company v. Northern Pacific Railroad Company (139 U. S., 1), was decided by the Supreme Court March 2, 1891, in favor of the latter company. This case involved upwards of 500,000 acres, situated in the western part of the State of Minnesota, where the grants for the two companies overlap. But little consideration has been given to the principles decided by said case, in departmental opinions thus far rendered, and no statement can now be made as to how far the same may affect other cases pending, in which the grants for these companies are involved. ADJUSTMENTS. The adjustments of the grants for the following companies have been submitted to the Secretary of the Interior for his approval, viz: An adjustment of the grant for the Coos Bay military wagon-road was submitted January 13, 1888. The adjustments of the grants for the following railroads have been approved, viz: The approval of the adjustment of the grant for the. Chicago, St. Paul, Minneapolis and Omaha Railway Company is given as February 12, 1890, but, in accordance with departmental direction, no action was taken under said approval until December 19, 1890, when directions were given for the disposition of the surplus lands. The matter of the adjustment of this grant has been pending since 1887, and as early as that date it was apparent that a portion of the lands reserved on account of the grant would not be needed in its satisfaction, but just what lands would be restored was not known until by letters of January 8, 1891, addressed to the officers at Ashland and Eau Claire, Wis., the restoration was ordered after due notice by publication for a period of 90 days. The restoration, as to the lands in the Ashland district, was to have gone into effect April 17, 1891, but, due to threatened interference of an armed mob, action under the order of restoration was suspended, and so continues. In the adjustment of the grant for the Florida Central and Peninsula Railroad Company, reported last year as in course of preparation, it was found that its selection might conflict with the claims of persons under the "armed occupation" acts, and steps are now being taken to protect such persons, as far as possible, by giving them proper notice of the selections made. But for this, adjustment of this grant would have been submitted for departmental approval, together with clear lists of its selections. In the matter of the adjustment of the grant for the Missouri, Kansas and Texas Railroad Company, the department held, in approving said adjustment, that the lateral limits of the grant, as fixed by the original withdrawals, should not be readjusted with the view of recovering title to lands patented to said company that may thus be shown to lie outside of said limits as readjusted, for (1) the title to said lands has passed out of the company; (2) it must be presumed that, in making the original withrawals, all matters necessary to a legal determination were duly considered; and (3) the said withdrawals have stood unquestioned for a long term of years, and that titles vested thereunder should not be disturbed. (11 L. D., 130.) This removes any question as to the readjustment of railroad limits, and the work of the adjustment of railroad grants will proceed upon the limits originally established. The mileage of land-grant railroads actually constructed up to the close of the last fiscal year was 18,070.71 miles, no part of which was constructed during the year. The lists of railroad selections awaiting examination at the close of the last fiscal year embrace 28,846,577.56 acres; the selections for wagonroads embrace 305,246.67 acres; making an acreage of 29,151,824.23 acres embraced in pending lists of selections for railroad and wagonroad construction. RIGHT OF WAY TO RAILROADS. The whole number of railroad companies claiming right of way over the public lands, under the general right-of-way act approved March 3, 1875, or special act, is 392, of which the articles of incorporation filed by 32 companies were approved during the last year. This branch of the work of this division steadily increases, and the extension made by the act of March 3, 1891, in favor of canal and ditch companies, will greatly add to it. Articles of incorporation have already been filed by twenty-one companies under the act of March 3, 1891, none of which have as yet been approved. There are about 3,000 approved maps of location on file in this office, and inquiries are daily made in relation to them for the purpose of securing certified copies, etc. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Washington, D. C., April 17, 1891, Registers and Receivers, United States Land Offices: SIRS: The following instructions under the act of Congress approved March 3, 1891, entitled "An act to repeal timber-culture laws, and for other purposes," are forwarded for your guidance: The eighteenth section provides that the right of way through the public lands and reservations of the United States is hereby granted to any canal or ditch company, formed for the purpose of irrigation, and duly organized under the laws of any State or Territory, which has filed or may hereafter file with the Secretary of the Interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of the ground occupied by the water of the reservoir, and of the canal and its laterals, and 50 feet on each side of the marginal limits thereof; also the right to take from the public lands adjacent to the line of the canal or ditch material, earth, and stone necessary for the construction of such canal or ditch. The right of way must not interfere with the proper occupation by the government of any reservation, and all maps of location must be subject to the approval of this department and of the department having charge of any reservation in which the right of way is proposed to be located. The nineteenth section is drawn in the same general terms of section 4 of the right of way act for railroads approved March 3, 1875 (18 Stat., p. 482), and directs that any canal or ditch company desiring to secure the benefits of this act shall, within 12 months after the location of 10 miles of its canal, if the same be upon surveyed lands, and if upou unsurveyed lands within 12 months after the survey thereof by the United States, file with the register of the land office for the district where such land is located a map of its canal or ditch and reservoir, and, upon the approval thereof by the Secretary of the Interior, the same shall be noted upon the plats in said office, and thereafter all such lands over which such right of way shall pass shall be disposed of subject to such right of way. The section further provides that whenever any person or corporation, in the construction of any canal, ditch, or reservoir, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. Under this section all maps or plats showing the location of canals, ditches, or reservoirs must first be filed in the proper local land offices. The register will note in red ink on the map or plat over his official signature the date of such filing in his office, and then promptly transmit the same to this office for appropriate action. It is imperatively necessary that all maps or plats submitted under this section should be filed in duplicate. The twentieth section directs that the provisions of this act shall apply to all canals, ditches, or reservoirs heretofore or hereafter constructed, whether constructed by corporations, individuals, or associations of individuals, on the filing of the certificates and maps herein provided for. If such ditch, canal, or reservoir has been or shall be constructed by an individual, or association of individuals, it shall be sufficient for such individual, or association of individuals, to file with the Secretary of the Interior and with the register of the land office where said land is located a map of the line of such canal, ditch, or reservoir, as in case of a corporation, with the name of the individual owner or owners thereof, together with the articles of association if any there be. Plats heretofore filed shall have the benefits of this act from the date of their filing as though filed under it. Forfeiture is declared if any section of said canal or ditch shall not be completed within five years after the location of said section, to the extent that the same is not completed at the date of the forfeiture. By the ovisions of this section it is obligatory upon all corporations, individuals, or associations of individuals owning, controlling, or operating canals, ditches, or reservoirs, whether the same have been constructed or are to be hereafter constructed, in order to be be admitted to enjoy the benefits provided for in this statute, to file the necessary papers and maps entitling them to recognition under this act; and you are directed to give notice to all such corporations that may be found within your district that the conditions precedent to obtaining rights of way over the public lands, as enumerated by the statute, must be fully complied with before any easement cau be secured. The twenty first section declares that nothing in this act shall authorize such canal or ditch company to occupy such right of way except for the purpose of said canal or ditch, and then only so far as may be necessary for the construction, maintenance, and care of said canal or ditch. So far as relates to sections 18, 19, 20, and 21 the duties of registers and receivers under the law are identical with those prescribed by circular approved January 13, 1888, containing the rules and regulations for railroads claiming right of way over the public lands under act of March 3, 1875, and you are directed to proceed in accordance therewith. Respectfully, Approved: GEO. CHANDLER, W. M. STONE, Acting Commissioner. Acting Secretary |