
    193 F. 641
    NELSON v. BROWNELL.
    No. 1,994.
    Circuit Court of Appeals, Ninth Circuit.
    Feb. 5, 1912.
    
      S. O. Morford and Jas. Alva Watt, for plaintiff in error.
    L. V. Ray, for defendant in error.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   GILBERT, Circuit Judge

(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 section, that the homestead land laws of the United States and the rights extended thereunder, including the right to enter surveyed or unsurveyed lands under the provisions of law relating to the acquisition of title through soldier’s additional homestead rights, are extended to the District of Alaska, subject to such regulations as may be made by the Secretary of the Interior. Then follow provisions for rights of way to railroads, and rights of way for wagon roads and tramways. Section 10 (48 U.S.C.A. §§ 359 and note 461-465) provides: “That any citizen of the United States, 21 years of age, or any association of such citizens, or any corporation incorporated under the laws of the United States, or of any state or territory now authorized by law to hold lands in the territories hereafter in the possession of and occupying public lands in the District of Alaska in good faith, for the purposes of trade, manufacture, or other productive industry, may each purchase one claim only, not exceeding eighty acres, of such land for any one person, association or corporation, at two dollars and fifty cents per acre, upon submission of proof that said area embraces improvements of the claimant and is needed in the prosecution of such trade, manufacture or other productive industry, such tract of land not to include mineral or coal lands.”

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 the claim in a conspicuous place for 60 days, “and during such period of posting and publication, or within 30 days thereafter, any person, corporation, or association having or asserting any adverse interest in, or claim to, the tract of land or any part thereof, sought to be purchased, may file in the land office where such application is pending, under oath, an adverse claim setting forth the nature and extent thereof, and such adverse claimant shall, within 60 days after the filing of such adverse claim, begin action to quiet title in a court of competent jurisdiction within the District of Alaska, and thereafter no patent shall issue for such claim until the final adjudication of the rights of the parties, arid such patent shall then be issued in conformity with the final decree of the court.”

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 land included within the boundaries of such location as thus recorded, “upon proof to be submitted to the register and receiver of the proper land office, upon proof that he is a citizen of the United States and upon the further proof required by section 2291 of the Revised Statutes of the United States (43 U.S.C.A. § 164 and note) as heretofore and herein amended, and under the procedure in the obtaining of patents to the unsurveyed lands of the United States as provided for by section 10 of the act hereby amended.” The intention of the amendment was to increase the quantity of land which might be taken as a homestead in Alaska, to subject unsurveyed lands to homestead settlement and patent, and to require that the boundaries of a homestead claim be plainly marked on the ground. That was substantially all that was accomplished by the amendment. There is no ground for the contention that by virtue of the provision requiring a homestead settler to furnish proof under the procedure for obtaining patents to surveyed lands of the United States as provided for by section 10 of the act of May 14, 1898, one who has a mining location in conflict with a homestead claim is required to bring a suit to quiet title before the decision of his adverse claim which is filed and pending in the land office. The amendment makes section 10 of the prior act applicable to proof of homesteads on unsurveyed lands as well as those on surveyed lands, and with that exception leaves its purport and meaning unchanged. In brief, the law under the amendment is what it was before, so far as it directs that a suit be brought to quiet title. If a person, association, or corporation in the occupation of land for the purpose of trade, manufacture, or productive industry claims by right of occupation land whether surveyed or unsurveyed which is included in a homestead settlement, he must at the appropriate time bring a suit to determine in a court the questions on which his right of occupation depends. The jurisdiction of the land office to determine contests between locators of mining claims and homestead settlers remains as it was before.

The judgment is affirmed.  