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..
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
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
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....
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
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
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-
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........
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
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.
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,
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
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...
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.
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
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
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
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