The new North-west. [volume] (Deer Lodge, Mont.) 1869-1897, 1882-09-15
PUBLIC SCHOOL LANDS.


cred Trespass by the superintendent
Of Public Instruction.
The following correspondence relative to
| trespass OIL the school lands and acquiring
title thereto has passed between D. b.
O'Bannon, ESQ of Deer Lodge, aud Hon.
r. II. Howey, Territorial Superintendent Of
Public Instruction, and will prove Of inter-
est to many Of our farmer readers.
DEER LODGE, NJ. T., Aug. %, 1882.
Dear Sir:
The recent instructions Of the Commits
sioner Of the General Land Office to your
self In regard to the School Lands Of the
Territory, directing you to report for prose-
cutinn persons trespassing upon sections 10
, and 30 within the public surveys, has occa-
stoned comment and discussion among our
agricultural classes, and excited spprehen-
sion an,png huse who are holding possessory
rights to wha. IL known a. "School Lands"
have had many Inquiries, In person and
by letter, in relation to this matter, which l
have been unable to answer, and you Will
confer favor upon myself and very many
Of our farming community, by making pub
lie your reply to th. following interrogation
les:
LIST. What is your construction Of the term
''trespsss" rs used by the Commissioner?
would you construe any use or occupation
whatever Of school lands to be trespass, or
only such IS in your opinion, is Of y charac-
ter to work permanent injury to such lands
and depreciate their value?
ID. To what extent IL any will you recog
nize possess"ry rights to school lands claim
ed and held under the laws of Montana Ter
ritory? Are you authorized to give any as
surxnc+ ~ 10 ultimate title, or will the whole
question Of final acquisition Of title be de-
t-rmined by local legislation when the Ter
ritory becomes State?
Your attention and All early reply are
respectfully solicited.
Your Ob't Servant,
OBJ. o'BANNoN.
To Hon. Il. ii. lIowEY,
Ter. Supt. Pub. Instruction,
Helena, M. T.
HELENA, N. T., Sept. 2, 1882.
DEAR SIR: Your inclosed inquiry con-
corning trespass upon school lands and the
title to the same came duly to hand; take
this opportunity ID review the question rs 1t
has arisen under the instructions Of the
Commissioner Of Public Lands.
The instructions of the Honorable Com
missioner TO this Office are Is follows: "As
to the depredations being committed upon
said sections &c and 3s) after survey by
psrtis, who have failed to initiate claims
| thereto under the homestead or presumption
laws, would state that such parties are SUBJ
ject To prosecution under the United States
laws for trespass, and upon furnishing this
Department with the proof Of such trespass
| In proper form, through the Governor or Mr..
Howey, Supt. Of Public Instruction, the same
will be considered with view TO the prose-
cution Of such irespsss by the proper Depart
ment. Very respectfully,
| IN. &. MCFARLAND, Conn.,"
Your inquiry Is as to my construction Of
the word trespsss ~ used In the foregoing.
In reply te m inquiry BY the Hon. W. Ii. II.
Besdle, Supt. Of Public Instruction for d.
kota, In regard TO trespass upon school lands
BY cutting and removing timber from them
and cultivating them IS private property, the
Hon. Secretary Of the Interior, under date Of
August 8, 1879, made the following reply,
viz: "Mr. Beadle desires to be informed
whether section 10 and SO In each township
Of surveyed lands In said Territory are pub
lie lands, or whether they are so under Ter
ritorial jurisdiction ~ 10 enable us to bring
actions in favor Of our public school fund.-
"Section IA Of an act entitled, Act to pro-
vide temporary government for the Terri
tory Of Dakota, aud " create the Office OF
Surveyor General therein reads - follows:
And be II further enacted, That when the
land in said Territory shall be surveyed un-
der the direction Of the Government of the
United States, preparatory TO bringing the
same into market, sections numbered Is and
SO In each township In said Territory shall
be, and the same are hereby, reserved for the
purpose of being applied to schools In the
States hereafter TO be enacted out Of the
same.'-l2 stat, p. 243.
"The lands are public lands, although re-
served for particular purpose, and oil tres
passes committed upon them render the par
ties guilty of such trespass liable to prosecu-
tiod under the laws of the United States.
The penalties collected for trespasses, how
ever, would not inurs TO any school fund of
the Territory. The United States has not
granted the title to such lands, but has re-
served them In order that At some future
time, when State sail be erected out u
such Territory, the same may be granted to
| such State.
ain relation to the United States to prose-
cute for trespasses, think there can be no
question; section 246l OF the Revised Statutes
provides specifically the punishment for cut.
Ting and removing timber from public lands;
and while am not aware Of statutes which
provides for rule OF damages for using and
euitivasing lands of the United States which
cannot nnder the law be ssld, still Am Of
the opinion that the United States has the
right to recover mesne profits for the use Of
said lands. as9 #.a sa..*
ain the case of the United States ". Gear,
Howard, 100, 1t was held that the United
States had the right TO maintain IN action Of
trsspass for taking orc from lead mines.
"Onths same principle, think, the Gov
eminent would BE- entitled to recover for
any other beneficial use to which the public
lands might be put. @w r*#5s 2' 7' 52~
"You may, therefore, advise Mr.. Besdle
that II he win furnish this Department
with information ~ 10 the cutting and re-
moving Of timber from sections 10 snd SO,
or sny other public lands In the Territory
Of Dskots, giving description Of the tract
trespasssd upon, time when tho trss3ass
was committed, sad ths psssa.ser persons
BY whom committed, the sane will receive
prompt attention. s
"You may also advise hin. that II hs
will furnish to this Department like in
i <c~~.~sscu NJ rxnvsrps vhn ara ltivsf inU