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TIMBER DEPREDATIONS.-TIMBER LANDS. In my annual report to you of last year, attention was called to the subject of depredations upon the timber on the public lands of the United States. The vast extent of these depredations and the great loss to the Government were represented, and recommendation was made for legis. lation by Congress to enable the survey, appraisement, and sale of the timber lands of the United States, but no legislation was enacted by Congress upon this subject.
A brief history of past action is as follows:
The first action by this Department in regard to depredations on the public lands was by the appointment of what were termed 66 timber agents." No law of Congress is referred to in these appointments, and it is presumed that the Secretary of the Interior made them as incident in the performance of his duty in protecting that portion of the public property coming under his jurisdiction. No appropriation was made for their payment, but they were instructed that their compensation and expenses would be paid from the proceeds of their agencies, if sufficient for that purpose, and if not, the residue out of the judiciary fund. They were instructed that the proceeding would be by indictment, or by seiz. ure under proper process of the timber or lumber cut, and their sole duty under their instructions was to obtain and furnish information to the United States district attorney or marshal, as the case might require. The Solicitor of the Treasury is authorized by law to instruct the dis. trict attorneys, marshals, and clerks of the circuit and district in all matters and proceedings appertaining to suits in which the United States is a party or interested, * * * ," (Stat. vol. 4, p. 415, sec. 379; Revised Statutes, U.S., p. 62,) and he was advised of the appointment of timber agents and of their acts, he gave them instructions, and he also instructed the United States district attorneys and marshals to render to these agents any aid and co-operation in their power.
With letter dated January 19, 1854, from George C. Whiting, chief clerk of the Department, all of the letters and other papers that had theretofore been filed in the Department in relation to depredations committed upon the public lands of the United States were transmitted to this office, with the remark that
The fact that many questions, intimately connected with the disposition of the public lands, are necessarily involved in the adoption of proper measures for the protece tion of the public property thereon, has induced the Secretary to commit the whole subject to your sound judgment and discretion as the public officer who from position and experience in such matters is most properly chargeable therewith.
Under date of January 28, 1854, a circular was issued by the Commissioner of the General Land Office to timber agents; also another, dated March 4. 1854. At the last date there appears to have been four of these agents, viz, two in Michigan, one in Wisconsin, and one in Iowa. These circulars, in addition to the duties prescribed in the appointments by the Secretary, contained instructions that the timber agents could seize and sell timber cut from the public lands independently of the marshal or of legal process. Under date of December 24, 1855, a circu. lar was issued by this office to registers and receivers, in which it is stated that
The Secretary of the Interior has concluded to change the present system of timber agencies, and to devolve the duties connected therewith upon the officers of the local land districts. By his direction, therefore, you will, upon the receipt of these instructions, take charge of the timber business within the limits of your land district, as a part of the general duties of your office; and it is accordingly hereby assigned to you as such, with the understanding that hereafter it is to be considered and held as a proper incident to, and, in fact, a part of, your general duties, covered and satistied by the salary which the law provides for your respective offices.
Following this there are quotations from opinions of Attorneys General, showing the right of the United States to protect the property belonging to them. A law and decision of the Supreme Court of the United States are also cited. The law cited is the act of March 2, 1831, entitled "An act to provide for the punishment of offenses committed in cutting, destroying, or removing live oak or other timber or trees reserved for naval purposes." (4 Stat. L., 472.) This act, as amended by act of July 10, 1832, (4 Stats., 572,) is embraced in and continued in force by sections 2461 and 2462, p. 453, and section 4751, p. 932, of the Revised Statutes of the United States.
The act of March 2, 1831, consisted of three sections, which, as amended, correspond with the three sections of the Revised Statutes mentioned. The first section provides a fine for cutting or removing timber from the lands of the United States of not less than triple the value of the tree or trees or timber so cut, destroyed, or removed," and imprisonment for not exceeding twelve months. The second section provides for the forfeiture of the sbip or vessel and tackle, apparel, and furniture for taking on board timber unlawfully cut, and for fine of captain for exporting same. The third section provides that the penalties and forfeitures incurred under the first and second sections
Shall be sued for, recovered and distributed, and accounted for, under the directions of the Secretary of the Navy, and shall be paid over, one-half to the informer, if any, or captors, wbere seized, and the other half to the Secretary of the Navy, for the use of the navy pension fund; and the Secretary is authorized to mitigate, in whole or in part, on such terms and conditions as he deems proper, by an order in writing, any fine, penalty, or forfeiture so incurred.
The decision of the Supreme Court cited is that of The United States rs. Ephraim Briggs, (9 Howard, p. 351,) in wbich it is held that the true construction of the act 2d March, 1831, is that it extends not only to the cutting of tiunber reserved for naval purposes, but to other timber," and that the cutting and using of any other description of timber trees from the public lands would be equally indictable under this act.
This case was first before the Supreme Court in 1847, (5 Howard, p. 208,) and was, therefore, instituted before the creation of this Department-(Act March 3, 1849, 9 Statutes, 395, provides for Interior Department,) but under wbat supervision I am not advised.
The circular of December 24, 1855, looks to an euforcement of the act of 1831. The 6th section contains the following: “In the enforcement of the said act of 1831 you should be careful," &c., but I am not able to state in how many instances the enforcement of this act through the courts bas been induced by the action of registers and receivers. I find that with letter dated August 19, 1870, the receiver of the land office at La Crosse, Wis., forwarded the claim of C. C. Miller for $96, being for compensation, at $3 per day, for thirty-two days spent in attendance at court on occasion of the trial of a trespass on public timber. In this case the trespasser, Andrew Scott, was sentenced to thirty days' imprisonment, and to pay a fine of $1,500 and costs of suit. Mr. Miller, in submitting his account, says:
I have been advised to make application for half the fine under the law, which gives one-balf the fine to the informer, but do not see my way clear to do that, as I was acting as Government agent, and only did my duty in following up the case.
And the receiver says: Mr. Miller, on the trial, was something more than a witness; he was, as we believe, tbe active agent during the trial, who marsbaled the evidence for the prosecution and greatly aided in bringing the criminal to justice. Although he received pay as a witDess, (which pay would not nearly pay bis board,) both the register and myself think this additional amount of $3 a day should be allowed him.
gate the subject. The salaries of sixteen surveyor generals, the rent of sixteen offices, the fuel and lights for the same, the employment of sixteen chief clerks, each at a salary, in most instances, as great, if not greater, than that received by the principal clerk of surveys of the whole United States, under whose direction and supervision all surveys are made, and by whom the accuracy of all the work is tested, could be dispensed with, and in lieu thereof substitute one surveyor general, one chief clerk, and the necessary number of clerks, as before stated.
The contract system for public surveys should be at once annulled and set aside. All surveys should be made by a regular staff or corps of officers selected by the surveyor general as his assistants on account of their fitness for the service. It should be the duty of such assistants to go into the field and make the surveys in person. If this system were adopted, it would certainly insure better work at less cost than by the present mode. The assistants, working at a fixed salary, would have no motive for doing the work imperfectly, as they might bare if under contract, which, in my opinion, is a sufficient reason for saying that the surveys would be made in a more satisfactory manner. There can be no reasonable doubt that surveys made in this manner would cost less than by the present contract method. It is true that the prices now allowed by law are too small to admit of large profits being made in the survey of mountainous or densely timbered lands, if the work be ‘properly done. One reason why this is true is found in the fact that many of the persons surveying under contract are not well skilled in their work, and have not the means of procuring the necessary equip. ment for camp and field to enable them to do the work in the most economical manner. Most contractors in the Western States and Territories have to pay ruinous rates of interest for money to enable them to go into the field at all, and yet, with all these adverse circumstances to contend against, they make good profits on surveys of arable or level lands.
During the fiscal year ending June 30, 1877, there were expended in the surveys of public lands the sum of $215,942.42, for which there were surveyed 10,847,082 acres. Add to this the further sum of $146,933.58 which it cost to maintain the surveyor generals' offices in the sixteen districts where the surveys were made, and it is found that the total cost amounts to $362,876.
I hazard nothing in saying that under the system of having but one surveyor general and assistants, as proposed, a much larger area could have been surveyed and in a better manner. In many of the surveying districts lines and corners, established only a few years since under the contract system, are entirely obliterated.
It may be urged against this system that it would not be convenient for settlers and others, interested in any district where there are unsurveyed public lands, to procure such surveys as might be desired, if the surveyor general's office in the district were abolished or removed. No such argument can be successfully maintained. The rule is now for the surveyors general to make surveys in such parts of their several districts as they deei best, and all contracts for surveys before they become binding are sent to this office for approval. An order to survey any particular township in any district can be sent to an assistant in less time than a contract could be prepared, sent here, approved, and returned to the surveyor general, all of which must be done before the work can be commenced. I therefore recommend
First. The consolidation of all the offices of surveyors general into one, which shall be located in Washington.
Second. The abolition of the contract system.
Third. The appointment of a surveyor general of the United States, who shall be authorized to appoint as many assistants as may be required to personally make the surveys as fast as may be deemed necessary or provided for by law.
SURVEY OF ISLANDS AND BEDS OF MEANDERED LAKES, SLOUGHS,
The survey of small islands in navigable meandered waters in the States where the offices of surveyors general had been closed and no appropriation of funds applicable for the purpose had been provided, was authorized by this office in 1868, to be executed at the expense of the applicant.
Office circular of June 10, 1868, (revised December 1, 1874,) embodied the regulations governing such surveys. The applicant is required to describe the particular island requested to be surveyed, with reference to the lines of public surveys adjoining the same, to furnish affidavits of disinterested persons of the existence of such lands, and to deposit the requisite amount to cover the cost of the survey; but with the understanding that the payment for such survey would confer no preference. right in the purchase of the land, such lands when surveyed being held subject to homestead and pre-emption rights under existing laws.
July 13, 1874, a circular was issued prescribing regulations for the survey of beds of lakes, (not navigable,) sloughs, and pounds over which the lines of the public survey were not extended at the date of the original survey, but which from the presence of water at the date of such survey were meandered, but which have become dry land sufficiently for agricultural purposes, by evaporation or from other causes. These regulations were similar in their requirements to those for the survey of islands. Such islands and beds of lakes, sloughs, ponds, or bayous were held to be public lands, the property of the United States.
The regulations embraced in these circulars were not new in their substance, but were simply a formulation of the pre-existing practice of the office theretofore administered with reference to the class of lands to which they were applicable.
I found surveys which had been made under these instructions pending before the Department when I assumed my present official position, and have permitted them to be treated, as was contemplated by the instructions, as a matter of good faith to parties interested; but after a careful consideration the conclusion is reached that not only is there no specific enactment which authorizes this action as set forth in the instructions above referred to, but there is grave doubt whether the United States has any claim to such islands or dried up lake beds, and whether they do not come under the sovereignty of the States respectively within the limits of which they are situated, and it was therefore determined that such surveys should not further be authorized. Aside from this question of title there are many other important considerations connected with this subject. It is impossible, from anything in the possession of this office, to arrive at anything like a correct computation of the number of these islands and surveyable lake beds; but there is sufficient to warrant the statement that the number is quite large and is constantly increasing. They are often found in localities which, from nearness to growing cities or villages, or from being within thickly and long settled neighborhoods, gave them a high value, and they became, as this office has had experience, objects of contention and strife, and affect the interests of whole communities. The labor that will be imposed upon this office if the past system should be continued, would be very great, and I therefore am of the opinion that let the title rest where it may, Congress should pass an act transferring any title the United States may possess to the respective States, when such lands can become subject to the operation of State laws. The whole subject is worthy the attention of Congress, and indeed both public and private interests require its early attention.
ADJUSTMENT OF SWAMP LAND GRANTS UNDER THE ACT OF CON. GRESS APPROVED MARCH 2, 1849, SEPTEMBER 28, 1850, AND MARCH 12, 1860.
The act of September 20, 1850, has been held by the Supreme Court to have been a present grant. The act provides that it shall be the duty of the Secretary of the Interior to make accurate lists and plats of the same, and transmit them to the governors of States, and at their request to issue patents therefor. The provisions of the law have not been fully carried out, nor have the grants to the several States been adjusted. Lapse of time makes the adjustment more difficult. Many States are demanding their rights under the act, and, at the present rate of settlement, years must elapse before the swamp and indemnity lands can be ascertained.
The quantity of land selected for the several States under the acts of March 2, 1849, September 28, 1850, and March 12, 1860, is 67,683,045.76 acres; of this quantity 51,315,355.59 acres have been approved, and of the approved selections 47,923,306.91 acres have been patented. There remains of the approved lands 3,392,048.68 acres to be patented, and of the selected lands 16,367,690.17 acres remain to be approved and patented.
Under existing regulations of the Department these lands, which are distributed among the States from Florida to Oregon, must be examined in the field before approval. Many years must elapse before this can be done, unless Congress will appropriate money for a larger clerical force. I have now but one agent in the field, and have to pay his expenses out of the contingent fund of the bureau. There should be at least forty efficient men engaged on this work. The extent of the grant should be ascertained at the earliest possible date, and the lands passing under the grant should be conveyed to the several States.
I therefore recommend that you call special attention of Congress to this matter, and urge an appropriation sufficient to insure a speedy ad. justment of this grant.
LAPSED RAILROAD GRANTS BY REASON OF NON-COMPLETION.
A large number of grants for railroad purposes have expired by limitation, the roads for whose benefit they were made not having been constructed within the period prescribed by law; and I desire to invite attention to this subject which, though deserving of special consideration, has never heretofore been presented to Congress.
Most, if not all, grants contain clauses limiting the time within which the work of building the roads shall be performed, and recite that in the event of a failure on the part of the companies to comply with the con. ditions imposed, the “lands shall revert to the Government." A case involving this question was brought to the Supreme Court from Wisconsin, and that body, at its October term of 1874, declared that such clause, to wit, “ the lands unsold shall revert to the Government,” (if