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May 1, 1964

In determining whether such use as defendant has made is or is not inconsistent with the dedication, it would seem clear that the court should consider what such dedication was, and the limitations placed upon it by the acts of the parties, as well as their interpretation of such dedication for these many years.

See also 4 Williston, Contracts § 623 (3 ed. 1961)

The cases cited by claimant's attorney are distinguishable on their facts from the present situation. Patterson Orchard Co. v. Southwest Ark. Util. Corp., 179 Ark. 1029, 18 S.W. 2d 1028 (1929), involved a power line right-of-way through an existing orchard. The company did not attempt to acquire the right to clear the orchard. It did not need to since these trees would not be expected to grow to a height that would interfere with the operation and maintenance of the line. And in 1929 chemical sprays were not the usual method for control of vegetation on rights-of-way. Under those circumstances, continuing the pre-existing use of a right-of-way for orchard cultivation is not comparable to a subsequently commenced use of a right-of-way for growing conifers which, unless subject to assured control, would in a few years become a very definite and costly interference to operation of the line. Draker v. Iowa Elec. Co., 191 Iowa 1376, 182 N.W. 896 (1921), and Collins v. Alabama Power Co., 214 Ala. 643, 108 So. 868 (1926), are likewise authority for no more than the proposition that the servient owner may cultivate the right-of-way in a manner that will not affect the right of the power company to full use of the easement for the operation and maintenance of the line. None of the cases cited by claimant involved the question of an easement holder's right to adopt maintenance practices intended to remove natural growth which, while not a hazard to the line at the time of removal, would in the natural course of events become a hazard unless removed.

Under these circumstances I conclude that the Administration had the right to clear and keep clear the right-of-way across these three tracts. The Administration did not exceed this right when it sprayed and killed the small conifers growing upon this right-of-way. Accordingly, the claim of the Port Blakely Mill Company is denied.

Any claimant who is dissatisfied with this determination may appeal to the Solicitor of the Department of the Interior within thirty (30) days after receiving this determination by filing a written notice of appeal with the undersigned. Such notice must set forth the basis for the appeal. Note: Subsequent to this administrative determination claimant with

drew the claim from consideration by the Department of the Interior, 28 U.S.C., 1958 ed., 2675(b) and filed suit for the amount of $2,500 in the United States District Court for the W.D. of Washington, Civil No. 6205 on June 5, 1964. The Port Blakely Mill Company v. United States.

JOHN L. BISHOP,

Regional Solicitor.

SOUTHERN PACIFIC COMPANY

A-29736 ET AL.

Decided May 27, 1964*

Railroad Grant Lands-Mineral Lands: Determination of Character of
The period for determination by the Department of the Interior whether public

land included within the primary limits of a legislative grant-in-aid of the construction of a railroad which excepts mineral land is mineral in character

extends to the time of issuance of patent to the railroad company. Railroad Grant Lands Land known to be mineral in character at the time of definite location of a

railroad are excluded from the grant of place lands to the railroad even

though the lands may later lose their mineral character. Railroad Grant Lands Pursuant to section 321(b) of the Transportation Act of 1940 patent may be

issued for railroad grant lands sold by the railroad if it is determined either (1) that the land was not mineral in character at the time of the sale and the purchaser was an innocent purchaser for value, even though the land is subsequently determined to be mineral in character, or (2) that although the land was mineral in character at the time of the sale the purchaser was

not chargeable with actual or constructive notice of that fact. Railroad Grant Lands-Mineral Lands: Determination of Character of —

Rules of Practice: Hearings When the Department of the Interior finds that public land within the place

limits of a legislative grant-in-aid of the construction of a railroad is mineral in character and the railroad company challenges such finding, a hearing should be granted at which the Department has the obligation of making a prima facie case of mineral character whereupon the company has the burden of establishing nonmineral character by a preponderance of the

evidence. Railroad Grant Lands—Mineral Lands: Determination of Character of

Rules of Practice: Evidence To establish the mineral character of railroad grant land it must be shown

that known conditions on the critical date are such as reasonably to engender the belief that the land contains mineral of such quality and in such quantity as to render its extraction profitable and justify expenditures to that end.

APPEALS FROM THE BUREAU OF LAND MANAGEMENT

The Southern Pacific Company, as successor in interest to the Central Pacific Railroad Company of California and acting on behalf of the successors in interest of the railroad company's vendees, has

*Not in chronological order.

May 27, 1964

appealed to the Secretary of the Interior from five different decisions of the Division of Appeals, Bureau of Land Management, affirming decisions of the land office at Sacramento, California, rejecting its six applications for patent to certain tracts of public land in Nevada and Placer Counties in California.1

The appeals all involve construction of the Railroad Land Grant Act of July 1, 1862, 12 Stat. 489, as amended by the act of July 2, 1864, 13 Stat. 356, and of section 321 (b) of the Transportation Act of 1940, 54 Stat. 954, 49 U.S.C. $ 65(b) (1958). For these reasons the appeals are being considered together.

The act of July 1, 1862, granted to appellant’s predecessor, the Central Pacific Railroad Company, land described as follows in section 3 of the act:

every alternate section of public land, designated by odd numbers, to the amount of five alternate sections per mile on each side of said railroad, on the line thereof, and within the limits of ten miles on each side of said road, not sold, reserved, or otherwise disposed of by the United States * * * at the time the line of said road is definitely fixed : Provided, That all mineral lands shall be excepted from the operation of this act * * * 12 Stat. 492. Section 4 of the act of July 2, 1864, 13 Stat. 358, doubled the amount of land granted and provided additionally that

any lands granted by this act, or the act to which this is an amendment, shall not * * * include any government reservation or mineral lands * * * any lands returned and denominated as mineral lands *

After the line of the railroad was definitely located, appellant's predecessor sold portions of the odd-numbered granted sections to purchasers who are the predecessors in interest of the real parties in interest in the pending appeals (see footnote 1). The lands have never been patented to the railroad.

When the Transportation Act of 1940 was enacted, it was provided in section 321(b) that if any land grant railroad wished to take advantage of charging higher rates for carrying Government traffic, it must file a release of any claim it might have against the United States to lands granted to the railroad. It was provided, however, that nothing in section 321(b) should be construed

*** to prevent the issuance of patents confirming the title to such lands as the Secretary of the Interior shall find have been heretofore sold by any such carrier to an innocent purchaser for value * **.

Southern Pacific and its predecessors filed releases which specifically excepted lands sold to innocent purchasers for value prior to enactment

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i The Company filed the applications and has prosecuted the appeals, calling at each step of the process upon the real parties in interest to submit the fee and their reasons in support of the appeal. However, some of the real parties in interest have their own attorners who have filed statements in their behalf or are prosecuting the appeals on their behalf and also on behalf of the Southern Pacific Company.

737-975–64--2

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of the Transportation Act of 1910. The releases were accompanied by lists of lands said to have been sold to innocent purchasers for value.

Thereafter, Southern Pacific filed the six applications for patent involved in these appeals, stating that the applications were for lands sold to innocent purchasers for value. The lands can be identified on the lists filed with the releases. The land office rejected the applications on the ground that the tracts of land applied for are or were mineral in character and thus excluded from the grant made by the acts of July 1, 1862, and July 2, 1864. The Division of Appeals

, affirmed.

The salient facts in each case are as follows:

1. A-29736. Southern Pacific applied (Sac. 065031) for the E14 SE14 sec. 27, T. 17 N., R. 9 E., M.D.M., containing 80 acres. It submitted an affidavit that an examination of the land on April 28, 1960, showed that at that time the land was nonmineral in character. It also submitted evidence that the land was sold by its predecessor, the Central Pacific Railroad Company, to Delovico Rossa on March 11, 1887, for $1.25 per acre, and that the present claimants, William H. Zanocco et al., acquired the land by deed dated August 15, 1941.

The land office rejected the application on the ground that an examination of the land disclosed that around 1900 an auriferous gravel channel crossing the land was considered to offer sufficient promise to warrant a determination that the land was mineral in character and, therefore, since the land was mineral at the time of the grant to the railroad it was excluded from the grant. The Division of Appeals affirmed on the same ground, observing that the land is not mineral in character at the present time.

2. A-29748. Southern Pacific applied (Sac. 060314) for the NE14 sec. 21 and lot 1, sec. 31, T. 15 N., R. 14 E., M.D.M., containing 197.26 acres. It submitted an affidavit of nonmineral character as of July 25, 1959. It also submitted evidence of sale of the land by Central Pacific to three joint purchasers on October 10, 1889, for $5 per acre and of acquisition of the land by the present claimant, Frank V. Amaral, by deed dated April 9, 1959.

The land office rejected the application on the ground that the tracts contained known mineral deposits which were being actively explored in 1889, that the tracts have been subjected to mining locations, and that land formerly part of lot 1 was included in lode mining claims for which patent issued in 1908. The land office concluded that the lands were considered to have been mineral in character around 1900 and therefore mineral in character at the time of the grant. The Division of Appeals affirmed, saying that Southern Pacific had not proved that the lands were not mineral at the time of the grant.

3. A-29753. Southern Pacific applied (Sac. 056150) for lot 6, NE14 sec. 3, T. 17 X., R. 9 E., J.D.M., containing 38.20 acres. It sub.

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May 27, 1964 mitted an affidavit of nonmineral character as of October 30, 1957. It also submitted evidence of the sale of the land by Central Pacific to John Bonney on April 19, 1895, for $122.19 and of the acquisition of the land by Willis E. Dudley, the present claimant, by deed dated March 11, 1953.

The land office rejected the application on the ground that the land was mineral in character until 1883 and therefore mineral in character at the time of the grant. The Division of Appeals affirmed on the ground that the land is covered by mining claims, one of which is being worked, and that there is sufficient evidence that the land is mineral in character.

4. A-29754. Southern Pacific applied (Sac. 060300) for the SE14 sec. 21, T. 18 N., R. 9 E., M.D.M., containing 160 acres. It submitted an affidavit of nonmineral character as of August 7, 1959. It also submitted evidence of the original sale of the land on April 26, 1889, to Fred Searls for $2.50 per acre and of the acquisition of the land by Fred W. Anderson, the present claimant, by deed dated March 13, 1959.

The land office rejected the application on the ground that the land was mineral in character at the time of the grant, although some portions are nonmineral today. The Division of Appeals affirmed on the same ground.

5. A-29888. Southern Pacific filed two applications. One (Sac. 061438) was for portions of sec. 9, T. 17 N., R. 11 E., M.D.M., comprising 295.56 acres, and was supported by an affidavit of nonmineral character as of June 24 and 25, 1959. Evidence was submitted of the original sale of the land on July 16, 1888, and December 12, 1889, to Washington Mining Company for $2.50 per acre and of the acquisition of the land by Frank V. and Gertrude L. Amaral, the present claimants, by deeds executed in 1958 and 1959.

The second application (Sac. 062964) was for lots 1, 2, and 3, sec. 7, T. 17 N., R. 8 E., M.D.M., containing 117.97 acres. It was supported by an affidavit of nonmineral character as of various dates in 1955 and 1957. Evidence was also submitted of the original sale of the land on November 4, 1891, to John Armstrong for $2.50 per acre and of acquisition of the land by Arthur E. Connick, the present claimant, by deed dated March 15, 1960.

The land office rejected the first application on the ground that the land was mineral in character at the time of the grant, saying that this was established by the patenting of mining claims over most of sec. 9. It rejected the second application on the ground that the land was mineral in character during the placer mining era prior to 1900 and again during the period of lode mining from 1900 to 1940.

The Division of Appeals affirmed on the ground that the evidence shows that the lands “are" mineral in character and that Southern

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