Custer weekly chronicle. [volume] (Custer City, S.D.) 1890-1931, 1909-05-15

no application before this tribunal :,
pass upon and enforce . dscision advers,
to him. There 10 no principle involvet
and the courts and the land department
are unanimous In holding that an sb
stract principle of Law Vim mot be deter
mined Until q specific principle npor
which finding could be rendered, Il
properly before Il
Upon further consideration ofths mo
ton Of the plaintiff 10 take the dsposi
ton Of Expert Miner Curry in this case,
the local land ofice found no good rea'
son for disturbing the ruling rendered
on the date Of the trial denying the mo-
ton.
The second motion Of the defendant Ia
based wholly upon the law with refer
snce 10 the establishment Of forest res
eyvstIons and b taken into considsfa'
tion in rendering this opinion.
The third motion'of the defendant "a
considered but as 10 whether or not the
lands embraced within the lines ofthese
locations are required for forestry pur-
poses nowhere appears in the charges
made against the locator. II is, how.
ever, assumed from the records Of this
Office that the forestry service require
the land within the limits of said loca-
tions for forestry purposes, inasmuch as
the records disclose the same with other
lands have been entirely withdrawn for
an administrative site. 1t Is clear there.
fore that the question in controversy is
one of the rights Of possession as be.
tween the government on the one hand
TO utilize the land for forestry purposes
and the locator on the other hand for
mineral pursuits. The office also neces-
sarily would have to hold that If the To-
Gators in this controversy were valid and
subsisting locations, based upon valid
discovery of minerals, and the locations
made In conformity with the local laws,
that the government is estopped under
trespsssing upon the lode locations, In
asmuch as the locator thereof is entitled
to the right of possession thereof and
enjoyment of all the surface included
within the lines of his said locations.
Many Of the land grant acts have de-
clared that lands granted to railroads
should be forfeited for the n-perform.
ance of conditions precedent or subse.
quent, such as failure to complete road
within a certain time or to construct q
certain number of miles of road each
year. ,,r
Such q forfeiture Is not self executing
for a mere breach ofthe conditions, but
only by some affirmative action on the
part Of the state.
No forfeiture suit In equity on. the
part of the governments has as far as the
record discloses been instituted and a
decree filed in this Office. Nor do we
find any legislative enactment forfeiture
lode or placer locations under the grant
conferred by Section 23l9 Rev. Stats.
Surely then this office has no authority
to declare such q forfeiture under the
law or administration of the suit before
it.
There Is no charge or allegations In
the pleadings to the effect that the land
is more valuable for timber, but pass
ing upon this phase of the question,
were it true that the timber growing
upon the locations in question was q
detriment to the successful admins
tration Of the National forest, the re-
moval thereof IL necessary, could be
effected by condemnation, proceedings.
Another q jurisdictional proposition
which enters into the proceedings here.
in is observed in passing In that the
charges against the mineral locations are
made by a forestry officer, and the ex.
aminations Of the locations made by
such officers, and by the land depart.
ment, upon which the statutes express.
ly confers such authority and jurisdic.
ton.
an conclusion, and in summing up
the various decisions of the United States
supreme court and various authors, and
even land decisions rendered by the de-
partment, we fail to find any cases an.
alogous to the case at bar in principle,
they all bear upon the proposition thai
the land department acquired jurisdic'
tion at such time as an application is be
fore it where the applicant seeks to di'
vest the paramount title Of the United
States in himself. ~
A dscfee Of the hand department could
not be enforced against the locator t
enjoin him from entering upon the pre-
misses for the purpose Of prospecting anG
exploration nor in. any manner prohibi
him from a relocation of the ground II
question; therefore, we must conclud,
that no good possibly can accrue from
decision by the local officers upon tn
facts set forth in the trial record an,
must further find that until an applica
ton for patent is filed in the local Of
fee, jurisdiction of the case is not &C
quired inssmuCh ss decree not bein
enforcible, the proceedings had woul'
be rendered nullity.
'tIn view of the above and foregoin
and the further fact that the question Q
the government land involved In thi
action Is of no vital Importance to tn