193 F. 641 | 9th Cir. | 1912
(after stating the facts as above).
It is contended that an exception to the rule that the jurisdiction of the land office to determine the question of the mineral or nonmineral character of land as between a mining claimant and a homestead settler is exclusive is created by the provisions of Act Cong. May 14, 1898, c. 299, 30 Stat. 409, as amended by Act March 3, 1903, c. 1002, 32 Stat. 1028 (48 U.S.C.A. § 371). The act of May 14, 1898, entitled “An act extending the homestead laws and providing for right of way for railroads in the District of Alaska and for other purposes,” provides, in the first
Then follows the proviso that: “In case more than one person, association or corporation shall claim the same tract of land, the person, association or corporation having the prior claim by reason of actual possession and continued occupation in good faith shall be entitled to purchase the same.”
Then follow provisions in regard to the admissibility of testimony before the register and receiver of the proper local land office, providing that such proof and certified copy of the field notes and plat of survey of the claim shall be filed in the office of the Surveyor General of the District of Alaska, and, if the survey and plat be approved by him, certified copies thereof, with the claimant’s application to purchase, shall be filed in the United States Land Office in the land district in which the claim is situated; that at the expense of the claimant the register shall cause notice of such application to be published for a prescribed time; that the plat and the application to purchase shall be posted on
It is clear that the requirement that an action to quiet title shall be brought as expressed in the last clauses of section 10 has reference only to contests affecting the rights of persons and associations of persons and corporations occupying public lands in the District of Alaska for the purposes of “trade, manufacture, or other productive industry,” and that it does not apply to contests arising between homestead settlers and the locators of mineral claims, concerning the mineral or nonmineral character of the land claimed by both. But it is said that the amendment of March 3, 1903, has the effect to extend that provision to such contests. The amendment of March 3, 1903 (48 U.S.C.A.' § 371), is entitled “An act to amend section 1 of the act of Congress approved May 14, 1898, entitled,” etc. It amends section 1 of the act so referred to by increasing from 80 to 320 acres the quantity of land which a settler may enter as a homestead in the District of Alaska, and extends the right of homestead to unsurveyed land “subject to such regulations as may be made by the Secretary of the Interior,” and it further requires that the homestead shall be marked on the ground by permanent monuments at each of the four corners, that a record of the location shall within 90 days from the date of settlement be filed for record in the recording district in which the land is situated, and that if after the expiration of five years, or at such date as the settlor may desire to commute, the public surveys of the United States have not been extended over the land located, a patent shall nevertheless issue for
The judgment is affirmed.