Upon the allotment of said lands in sev-
eralty, or upon title thereto being earned by
a homestead entryman by compliance with
the homestead law, the lands allotted, or
embraced in a homestead entry, cease to be
subject to the mineral provision of said act. 125
Valuable mineral deposits which may be
found upon land allotted in severalty to an
Indian under the act of June 6, 1900, are not
withheld from the allottee or reserved to the
United States, and can not be acquired un-
der the mining law; but such land may,
with the approval of the Secretary of the
Interior, be leased by the allottee under the
general statute relating to the giving of
mining leases by Indian allottees...... . . . 125
The provision of the act of June 6, 1900,
whereby the mining laws were extended
over the lands ceded to the United States
by the Comanche, Kiowa, and Apache
tribes of Indians in the Territory of Okla-
homa, was not intended to operate as an
exception to the settled principles applied
by the Land Department in the adminis-
tration of the public land laws generally.
Controversies between mineral and agri-
cultural or town site claimants, as to any of
said ceded lands, are to be determined upon
the same principles which apply to like
controversies with respect to the public
lands situated elsewhere

No mining location of land within the
county-seat town sites of Lawton, Anadarko,
or Hobart, made after the special reserva-
tion of those town sites on June 24, 1901, un-
der the act of March 3, 1901, is of any validity
or effect whatever..

154

154

Congress having made no provision for a
United States surveyor-general for the Ter-
ritory of Oklahoma, and not having author-
ized the duties required to be performed by
a United States surveyor or surveyor-general
in the administration of the mining laws
generally to be performed in said Territory
by any other officer, it is the duty of the
Commissioner of the General Land Office,
in administering the mining laws as ex-
tended over the aforesaid ceded lands by
the act of June 6, 1900, to perform, under
the direction of the Secretary of the Interior,
all executive duties appertaining to the
surveying of mining claims located upon
said lands, with the view of obtaining pat-
ents for such claims, and all similar duties
in any manner respecting the conduct of
proceedings to obtain such patents, and to
enforce and carry into execution any and
every part of the provisions of the mining
laws with respect to said ceded lands, not
otherwise specially provided for in the act
extending said laws over said lands........ 154

In a controversy between conflicting
claimants to the same land, arising upon
protest by a mineral locator against an ap-
plication to purchase under the act of June
3, 1878 (amended by the act of August 4,
1892), where it appears that the land, when
surveyed, was returned as of little, if any,
value for agricultural purposes and chiefly
valuable for the timber thereon, and the
final proof submitted in support of such ap-
plication appears to be sufficient in form
and substance, the burden of proof at a
hearing upon such protest rests upon the
protestant

Where in such a case the evidence fails to
show that the land in controversy contains
valuable deposits of mineral, and it appears
that the discovery on the strength of which
the mineral location was made consisted of
the digging of a prospect hole to the depth
of ten feet, in which about two cents'
worth of gold was found, and ample time
and opportunity were afforded prior to the
hearing to test the extent and value of the
alleged mineral deposits, without any sys-
tematic or continuous prospecting or work-
ing of the claim having been done, it can
not be held that such a location is a mining
claim within the meaning of said act of
June 3, 1878

400

400

An application for patent to a lode mining
claim may embrace ground lying on oppo-
site sides of an intersecting patented mill
site, provided the lode or vein upon which
the location is based has been discovered in
both parts of the lode claim..

Where an application for patent to a min-
ing claim is abandoned as to a tract of land
included therein, or rights thereto obtained
by earlier proceedings under the applica-
tion have been waived by delay to duly
prosecute the same to completion, the ap-
plication should, as to such tract, be re-
jected

A tract of land included in a pending ap-
plication for patent to a mining claim can
not properly be included in the subsequent
application of another party

Where an applicant, after the close of the
period of publication of notice, delays mak-
ing entry until beyond the end of the calen-
dar year, his laches, in the presence of the
alleged relocation of the claim, are fatal to
the entry..

An application for mineral patents which
includes ground embraced in a prior or
pending application for patent should not
be received as to the ground in conflict;
but where such an application has been re-
ceived, and proceedings had thereon, and
an adverse claim has been filed and suit

359

59

59

69

Page

brought upon it in a court of competent
jurisdiction, the application will not be re-
jected and the parties required to begin
proceedings anew, but the adverse suit will
be recognized as a stay of proceedings on
the application for patent until the suit shall
have been finally determined, after which
the application will be adjudicated in ac-
cordance with that determination......... 140
SURVEY.

The Land Department is without the juris-
diction or authority to correct mistakes,
after patent, in the survey of a mining claim,
as long as the patent remains outstanding.. 121
The returns of the surveyor-general in
surveys of mining claims made under the
mining laws are conclusive as to the quantity
of the lands embraced in such claims..............

A mining claim legally located may be
surveyed according to the lines of the loca
tion as marked on the ground, even though
the surveyed lines may in part or in whole
fall upon lands patented prior to the sur-
vey. A patent issued upon such a survey
should exclude all lands within the lines
of the survey which are also included in the
prior patent

Where the certificate of entry of a placer
mining claim describes the land in terms
of the general public survey and the sur-
veys of the excluded mining claims, such
description is sufficiently accurate therein,
and said surveys, taken together, furnish
the necessary data for the computation of
the area of the land and for the preparation
of an accurate description to be incorpo-
rated in the patent......
DISCOVERY AND EXPENDITURE.

Questions as to the making of annual ex-
penditure upon mining claims and as to
relocations alleged to have been made by
reason of failure to make such expenditure
or to duly resume work, are not for deter-
mination by the Land Department, but by
the courts

Labor or improvements to be credited to-
ward meeting the requirements of the stat-
ute as to expenditure on a mining claim
must actually promote or directly tend to
promote the extraction of mineral from the
land, or forward or facilitate the develop-
ment of the claim as a mine or mining
claim, or be necessary for its care or the
protection of the mining works thereon or
pertaining thereto...

Claimant's quartz mill, situated on one of
his claims in another group, even if con-
structed by him for the express purpose of
crushing ores from the claims embraced in
this entry, could not be accepted as an im-
provement made for the benefit of those
claims, or either of them, within the mean-
ing and intent of the statute....

64

121

64

69

37

Circular of March 26, 1902, under the act
of March 11, 1902, relative to officers before
whom affidavits, proofs, and oaths may be
made by applicants and entrymen under
the homestead, preemption, timber-culture,
desert-land, and timber and stone acts.... 274
Where deputy clerks are duly empowered
by Congressional, State, or Territorial laws
to perform the duties of elerks of courts of
record, all affidavits, proofs, and oaths of
any kind whatsoever required to be made
by applicants and entrymen under the
homestead. preemption, timber-culture.
desert-land, and timber and stone acts may
be made before such deputies with like
effect as though made before their princi-
pals..

Oklahoma Lands.

Proclamation opening Kiowa, Comanche,
Apache, and Wichita ceded lands

286

1

37

The general provisions of the town-site
laws control in the allowance of town-site
entries upon the lands ceded by the Kiowa,
Comanche, and Apache Indians; and the
special provision, authorizing the commuta-
tion of homestead entries for town-site pur-
poses, contained in the second proviso of
section 22 of the act of May 2, 1899, is not
applicable to entries made upon said lands. 144
The selection and entry of land adjacent
to a town site, by a duly qualified and regis-
tered homestead applicant, is not in viola-
tion of the letter or spirit of the law under
which the lands in the territory ceded by
the Comanche, Kiowa, and Apache Indians
were opened to settlement and entry

83

In making homestead entry of lands in
the territory ceded by the Comanche,
Kiowa, and Apache Indians, it is not neces-
sary that the lands shall be taken in square
form; but the general provision of the act
of March 3, 1891, amending section 2289 of
the Revised Statutes, which directs that
land to be taken as a homestead shall "be
located in a body in conformity to the legal
subdivisions of the public lands," will con-
trol as to the form of entries of these lands. 83
All persons who have acquired title to a
homestead by commutation, whether un-
der the provision of section 2301 of the Re-
vised Statutes or under any one of the spe-
cial acts relating to Oklahoma lands, are,
if otherwise qualified, entitled to enter a
homestead of the Comanche, Kiowa, and
Apache lands..................

Commutation may be allowed of all
homestead entries made under the act of
June 6, 1900, without reference to whether
the entryman had previously commuted
an entry under section 2301 of the Revised
Statutes

Judicial proceedings instituted to compel
the Secretary of the Interior, by writ of
mandamus, to allot certain lands to a mem-
ber of the Comanche tribe of Indians, un-
der the agreement ratified by the act of
June 6, 1900, with said Indian tribe, the
courts, so far as the matter has proceeded,
having ruled against the petition for man-
damus, will not prevent the commutation
of a homestead entry for town-site pur-
poses, under section 22 of the act of May 2,
1890, and the act of March 11, 1902, of the
land involved

Under the provision in the act of June 6,
1900, that in case any section 13 or 33, re-

46

445

366

Page.

served by said act to the Territory and
future State of Oklahoma for university
and other purposes, was "lost to said Ter-
ritory by reason of allotment under this
act or otherwise," other lands equal to the
loss might be located, said Territory is au-
thorized to select lands in lieu of any such
section 13 or 33 lost to said reservation by
reason of its inclusion within a pasture re-
serve set aside by the Secretary of the Inte-
rior pursuant to article three of a treaty
between the United States and the Coman-
che, Kiowa, and Apache Indians, con-
cluded October 6, 1892..

The act of May 17, 1900, known as the free
homestead act, operated to abrogate the
general rule recognized in departmental
practice, that requires payment to be made
for the excess area embraced in homestead
entries containing more than one hundred
and sixty acres, in so far as such rule, prior
to the passage of said act, affected the en-
try of lands designated therein.......

In view of the provisions of section 13 of
the act of March 2, 1889, and section 2 of the
act of June 5, 1900, one who has made a
cash entry of Cheyenne and Arapahoe In-
dian lands under the act of October 20, 1833,
is entitled to make a second homestead en-
try of lands in the Cherokee strip........

Patent.

The right to a patent, once vested, is,
for most purposes, equivalent to a patent
issued, and when in fact issued the patent
relates back to the time when the right to
it became fixed

362

162

49

88

Page.

In all cases where sufficient service has
been made on an adverse party, who fails
to appear or to respond to said notice, the
case shall be treated as an ex parte proceed-
ing, and can thereafter be proceeded with
without further notice to him..

An entry erroneously canceled without
notice to a transferee whose interest was
made known to the officers of the land de-
partment, will be reinstated upon applica-
tion of the transferee..

A transferee or mortgagee claiming un-
der an entry, if his interest or claim is
known to the land department, is entitled
to notice of any action by the Government
affecting the entry, whether the fact of his
interest is made known to the land officers
by a statement under oath or in some other
way
Private Claims.

318

51

51

Congress having confirmed and directed
the survey of a private land grant, it is not
within the province of the Land Depart-
ment to question its integrity or validity... 202
If there is doubt as to the translation of
the original title papers relating to a con-
firmed private land grant, the Land Depart-
ment must be guided by the translation
which governed the action of the surveyor-
general and of Congress in the proceedings
leading up to the confirmation of the grant. 202
Where conflicting private land grants
have been confirmed by Congress, each with-
out any reference to the other, it is the duty
of the Land Department to follow the con-
firmations and survey and patent each
gran, leaving to the judicial tribunals the
determination of all matters of priority and
superiority of right to the area in conflict.. 202
Where the confirmatory act provides that
the survey of a private land grant "shall
conform to and be connected with the pub-
lic surveys of the United States,
so far as the same can be done, consistently
with landmarks and boundaries specified,"
in the grant, and, or account of the absence
of public surveys in the vicinity of the land,
it appears to be impracticable to make the
survey conform to and be connected with
the public surveys, the same will not be re-
quired...

* *

The cost of the survey of a private land
claim shall be paid by the claimant, after
the completion of the survey, but prior to
the issuance of patent....

Instructions of July 24, 1901, with respect
to notice of application for certificates of
location under third section of act of June
2, 1858..

The right to locate surveyor-general's
scrip on land subject to sale at private en-
try at $1.25 per acre, conferred by the special
act of June 2, 1858, is in no wise affected by
the general provisions of the act of March 2,
1889, or the absence of a restoration notice,

202

202

45

Page

where after the passage of said act the land
may have been included in a homestead
entry that is subsequently canceled.................... 132
In the enactment of the seventeenth see-
tion of the act of March 3, 1891, Congress had
in contemplation the protection of indi-
vidual possession, and the right of entry
under said section can not be recognized
where the possession is not of such charac-
ter...

Where a small-holding claimant within
the provisions of sections 16, 17, and 18 of
the act of March 3, 1891, has filed his claim
and made due proof thereof in conformity
with said sections and the regulations issued
thereunder, and is fully entitled to a patent
therefor, at the date of the decree of the
Court of Private Land Claims confirming a
private land grant in conflict therewith,
the lands embraced in such claim must be
held to be disposed of or granted by the
United States, within the meaning of the
provisions of sections 8 and 14 of said act,
and excepted from the operation and effect
of the decree of confirmation.....

No lands were granted by the third sec-
tion of the act of March 3, 1819, which were
claimed or recognized by the preceding see-
tions of the act, and it is therefore neces-
sary to identify the land claimed under the
third section and to show that it does not
conflict with any claim confirmed by the
first or second section

323

332

344

The use of uninclosed land for the pas-
turing of stock, and the exclusion of others
therefrom by means of a keeper or herder,
constitutes possession thereof, within the
meaning of section 7, act of July 23, 1866... 446
The word "improved" as used in said
section contemplates the utilization of the
lands applied for under said section for
some recognized purpose of settled and
civilized life, not necessarily by the erection
thereon of buildings like houses and barns,
especially where such structures are located
on adjacent land and are adapted to use on
the land applied for. Lands so used and
occupied are within the intendment of the
statute...

446

Page.

head of that Department, are authorized to
try and determine the rights of claimants
therefor; and this power of necessity carries
with it the power and involves the duty of
determining whether such title remains in
the Government or has been granted away
from it......

An authoritative order by the proper ex-
ecutive department of the Government
directing the withdrawal of public lands
from disposition is, while in force, a bar to
the appropriation of the land under the
public-land laws.

Withdrawals of public lands may be made
for present public uses, or disposition in a
special way, or in anticipation of future
uses or disposal............

Wherever, by act of Congress, provision is
made for the disposal of portions of the
public lands of a designated class and char-
acter, selection or entry thereof under such
act can not lawfully be permitted until the
lands sought to be acquired under said act
are shown to be of the class and character
subject to disposal thereunder. When the
evidence to enable such determination to
be made does not appear from the land-
office records, it must be furnished by those
who seek title under the act .....

Under proceedings in the Land Depart-
ment to acquire title to public land, no
rights in the land are to be regarded as
having become vested in the party seeking
title until he shall have performed all the
conditions and fulfilled all the require-
ments necessary to establish his right to a
patent

Railroad Grant.

See Railroad Lands; Right of Way.

GENERALLY.

Circular of September 22, 1902, under acts
of June 22, 1874, August 29, 1890, and July 1,
1902, relative to settlers on railroad and
wagon-road grants

Directions given that all action affecting
lands within the conflicting limits of the
grant made by the act of July 2, 1864, to the
Northern Pacific Railroad Company and
the grant made to the same company by
the joint resolution of May 31, 1870, be sus-
pended until further directions in the
matter...

In determining priorities of claims in a
controversy arising upon the filing by a
railroad company of a list of selections, reg-
ular in form, upon the day the plat of
survey of the township in which the selected
lans are situated was officially filed and
the presentation, on the same day, of home-
stead applications for said lands, the actual
time of the presentation of the claims will
be recognized

193

193

193

288

288

424

219

LANDS EXCEPTED.

Page.

An expired preemption filing, of record
at the date of the attachment of rights under
the grant to the Northern Pacific Railroad
Company, does not except the land covered
thereby from the operation of the grant.... 254
A preemption filing accepted by the local
officers and placed of record, which was
subsisting at the date of the definite location
of the line of the Union Pacific railway
opposite the tract covered thereby, excepts
said tract from the grant made by the act
of July 1, 1862, to aid in the construction of
said road, without regard to the qualifica-
tion of the person making such filing...... 442
Lands included in the withdrawal upon
the map of general route of the Lake Supe-
rior and Mississippi railroad at the date of
the passage of the act making the grant to
the Northern Pacific Railroad Company
were not public lands," and for that reason
were excepted from the Northern Pacific
grant

432

Lands within ten miles of the probable
route of the Lake Superior and Mississippi
railroad, included in the withdrawal on
account of the grant to aid in the construc-
tion of said road at the date of the passage
of the act making the grant to the Northern
Pacific Railroad Company, were not "pub-
lic lands," and for that reason were ex-
cepted from the Northern Pacific grant.... 32
INDEMNITY.

Selections of lands under the act of June
4, 1897, while of record and awaiting con-
sideration, bar indemnity selection of the
same lands under a railroad grant......................... 151
In case of the erroneous patenting to a
railroad company, as indemnity, of a tract
of land for the selection of which no pre-
vious application had been made, the com-
pany will be afforded an opportunity to
specify a basis therefor and the patent al
lowed to stand...

Lands within the overlap of the grant
made by the act of July 2, 1864, to the
Northern Pacific Railroad Company, and the
grant made to the same company by the
joint resolution of May 31, 1870, are subject
to indemnity selection by said company
under the latter grant...

Where a fractional section has been de-
scribed differently under the original survey
of April 27, 1869, and the Carpenter survey
of April 6, 1894, and selection thereof is
made by a railroad company, as indemnity,
under the description given in the original
survey, such selection should be considered
as a selection of the tract as described under
the later survey, and patent should issue
accordingly

272

151

272