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Mr. NYE, from the Committee on Public Lands and Surveys, submitted the following

REPORT

[To accompany S. 3111]

The Committee on Public Lands and Surveys, to whom was referred the bill (S. 3111) validating certain applications for and entries of public lands, and for other purposes, having considered the same, report favorably thereon with the recommendation that the bill do pass without amendment.

This bill was introduced at the request of the Secretary of the Interior, as set forth in his letter of January 12, 1932, which also sets forth the facts concerning the proposed legislation, as follows: THE SECRETARY OF THE INTERIOR, Washington, January 12, 1982.

Hon. GERALD P. NYE,

Chairman Committee on Public Lands and Surveys,

United States Senate.

MY DEAR SENATOR NYE: I have the honor to submit herewith for your consideration and introduction draft of a proposed bill for the relief of certain applicants for and entrymen of public lands whose cases I am unwilling to dispose of without directing the attention of the Congress briefly to the following facts which, in my judgment, entitle them to the relief proposed:

On June 3, 1930, Edward L. Dailey, of Priest River, Idaho, applied (Coeur d'Alene 013240) to make entry under section 7 of the enlarged homestead act of June 17, 1910 (36 Stat. 531), for E. 1⁄2 SW. 4, SW. % SW. %, S. 1⁄2 NW. % SW., 8. N. NW. SW. %, NE. NE. NW. SW. 4, SE. SE. NW. %, and S. 2 SW SE. 4 NW. 4 sec. 24, T. 57 N., R. 5 W., Boise meridian, Idaho (167.50 acres), as additional to a homestead entry in western North Dakota embracing 160 acres perfected by 5-year final proof in July, 1912. Prior to purchasing the relinquishment of a former entry embracing the land he consulted the register of the Coeur d'Alene land office, who advised him that he could make entry therefor under the enlarged homestead act if the land was nonirrigable. Dailey thereupon paid more than $400 to the prior entryman for his relinquishment, and with his wife and seven children established residence on the land immediately after filing his application. No action on the application

8 R-72-1-VOL 1—16

was taken until December 15, 1930, when the Commissioner of the General Land Office held that claimant's former entry exhausted his homestead right. Prior thereto Dailey had made extensive improvements on the land, which is within the limits of the Kaniksu National Forest, restored to entry under the provisions of the act of June 11, 1906 (34 Stat. 233). The tract applied for is of the character contemplated by the enlarged homestead act, as is the land in Dailey's original entry.

On November 8, 1926, Eugene Johnson made homestead entry for a tract embracing 159.99 acres in the Santa Fe, N. Mex., land district, upon which final proof was submitted December 27, 1929. In said final proof claimant stated that he had made a prior homestead entry embracing 160 acres in Oklahoma, on which he submitted final proof in 1900, on which patent thereafter issued; that he did not mention this fact at the time of making the entry in question as he was advised and so understood that such prior entry did not exhaust his homestead right. Upon consideration of same, the Commissioner of the General Land Office, by decision of August 9, 1930, found that as disclosed by the records this claimant had made such former entry on November 11, 1893, upon which final proof was submitted December 31, 1900, and on which patent issued February 28, 1903; that while the proof offered in support of the second entry showed very substantial compliance with the requirements of the homestead law, yet claimant had exhausted his homestead right by making and perfecting such prior entry, and accordingly held the entry in question for cancellation. In support of his appeal therefrom, claimant again urged that he was advised that his prior entry did not exhaust his homestead right and after the allowance of his second entry he placed very substantial improvements on the land, where, with his family, he has maintained continuous residence for more than three years, and that he can ill afford to lose the money he has expended in the improvement and cultivation of the land. In view of the above, the department, by letter of April 18, 1931, advised claimant that while the adverse decision of the commissioner was warranted under the law, considering the equities involved, and the showing made upon appeal, action on the case would be suspended with a view to recommending legislative relief authorizing the acceptance of the final proof and the issuance of patent thereon upon payment therefor at the rate of $1.25 per acre.

On March 17, 1928, John Arambel filed application to have a tract embracing 80 acres in the Evanston, Wyo., land district, ordered into market and sold at public auction, under the provisions of section 2455 of the Revised Statutes, as amended. This application was rejected by the Commissioner of the General Land Office because the land involved was at that time included in Wyoming Segregation List No. 35, under the Carey Act. This list, however, was later relinquished and canceled of record on October 2, 1929, and the land thereafter became a part of the public domain, subject to appropriate disposition on February 4, 1930. On February 18, 1930, this claimant filed a second application to purchase the tract and as it had been appraised by an examiner of the General Land Office under the original application as being of the value of $3 per acre the register issued appropriate notice for publication, and the land was sold on April 11, 1930, to this claimant at the appraised price, on which date cash certificate issued. By decision of December 6, 1930, the Commissioner of the General Land Office held that the action of the register in issuing such notice and in selling the land was erroneous, as no sale thereof had been ordered by the commissioner, and also because of the fact that the examiner's report indicated that a greater portion of the land was not too rough for cultivation or of the character which may be sold under the first proviso to section 2455 of the Revised Statutes, as amended.

Accordingly he held the application for rejection and the cash certificate for cancellation. In support of his appeal to the department therefrom claimant urged that before receipt of that decision he had placed valuable improvements on the tract which adjoined other land owned by him; that these improvements consisted of a well, granary, house, corrals, troughs, and other substantial improvements valued at $2,693.50; that the character of these improvements was such that their removal would result in a complete loss, and without offering any chance for salvage; that he had acted in good faith throughout, complying with every requirement of the local officer, and urged at least that he be given patent for that part of the land on which these improvements were located. By decision of July 11, 1931, the department held that as the action of the commissioner was warranted under the law there was no authority to grant claimant's request, but that in view of all the facts and circumstances of the case, the apparent good faith of the applicant, the large amount of money expended in placing improvements on the land

after the issuance of the cash certificate, and there being no intervening rights or equities, that action on his case would be suspended with view to recommending remedial legislation to the Congress as now proposed.

On April 16, 1909, the Department of the Interior approved an application by the Wasco County Electric & Water Power Co. under the provisions of the act of March 3, 1875 (18 Stat. 482), for a right of way for a railroad from a point in section 10, township 4 south, range 21 east, Willamette meridian, to a point in section 3, township 6 south, range 21 east, Willamette meridian, Oregon, a distance of 17.6 miles; and on June 29, 1909, approved a similar application by said company for a right of way for a railroad from the point last named to a point in section 34, township 9 south, range 20 east, Willamette meridian, a distance of 37.7 miles. No construction work was ever performed by the company, which was incorporated under the laws of the State of Oregon on May 14, 1908. The corporation was dissolved and its articles of incorporation revoked and repealed by proclamation of the Governor of Oregon on January 3, 1912, in accordance with Oregon laws. Under date of November 29, 1927, the Secretary of the Interior requested the Attorney General to institute a suit to cancel the grant, but the United States attorney for the district of Oregon reported that the time within which a suit could be instituted against a defunct corporation had expired, and that a suit could not be maintained. The forfeiture of the grant would remove the cloud from the lands crossed by the right of way, and such action by the Congress is recommended.

By letter of even date I have forwarded a similar communication and recommendation to the chairman of the Committee on the Public Lands, House of Representatives.

Very truly yours,

RAY LYMAN WILBUR.

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