Page.

patent to the Northern Pacific Railroad
Company, or its successor in interest, any
lands within the land districts named in
the act of February 26, 1895, prior to the
examination and classification of said lands
as nonmineral, provided for in said act.... 395
The act of February 26, 1895, limited the
classification of lands within the limits of
the Northern Pacific land grant in the State
of Idaho to the Coeur d'Alene land district,
and where lands in said State outside of that
district were classified as nonmineral by
mineral land commissioners appointed
under said act, and the classification ap-
proved, notice of the listing or selection of
such lands will be required to be given, as
to such of the lands as are within 6 miles of
a mining claim, in the manner provided by
the regulations of July 9, 1894, notwith-
standing such classification and approval.. 394
CONFLICTING GRANTS,

A reservation on account of a prior grant
will defeat a later grant, like that made in
gid of the Northern Pacific railroad, with-
out regard to whether the lands are needed
in satisfaction of the prior grant....
ACT OF JULY 1, 1898.

The act of July 1, 1898, is limited to con-
flicting claims upon odd-numbered sections
in either the granted or indemnity limits of
the Northern Pacific land grant; hence con-
flicting claims to lands in an even-numbered
section are not subject to adjustment under
said act.......

Purchasers under section 5 of the act of
March 3, 1887, of lands covered by an ex-
pired preemption filing at the date of the
attachment of rights under the grant to the
Northern Pacific Railroad Company.
and for that reason erroneously held to
have been excepted from the grant, are not
claimants adverse to the railroad company,
and hence their claims are not subject to
adjustment under the provisions of the act
of July 1, 1898......

Railroad Lands.

32

161

254

An applicant to purchase under the fifth
section of the act of March 3, 1887, who,
at the time of his purchase from the rail-
road company, had knowledge that there
were conflicting claims to the lands and
that the company's claim was being con-
tested, is not necessarily chargeable with
bad faith because of such knowledge...... 325
One who with knowledge of the excep-
tion of mineral lands from the grant to the
Southern Pacific Railroad Company pur-
chases from said company lands within the
limits of its grant, known to be mineral at
the date of such purchase, is not a pur-
chaser in good faith within the meaning of
section 5 of the act of March 3, 1887........ 325
If such lands were not known to be min-
eral at the time of their purchase, no subse-

Page.
quent discovery or development of miner-
als thereon could affect the question of the
good faith of the purchase

Purchasers under section 5 of the act of
March 3, 1887, of lands covered by an ex-
pired preemption filing at the date of the
attachment of rights under the grant to
the Northern Pacific Railroad Company,
and for that reason erroneously held to
have been excepted from the grant, are not
claimants adverse to the railroad company,
and hence their claims are not subject to
adjustment under the provisions of the act
of July 1, 1898...

325

254

An application to purchase under section
5 of the act of March 3, 1887, can not be en-
tertained until it has been finally deter-
mined that the land sought to be purchased
is in fact excepted from the railroad grant. 254
A person entitled to make purchase under
the provisions of section 5 of the act of
March 3, 1887, upon being advised of an ad-
verse claim asserted to the land under the
homestead law, should make prompt asser-
tion of his right of purchase by filing his
application in the district land office, and
his failure to make timely assertion of
claim under such circumstances will bar
his right of purchase as against the adverse
claimant in possession....

Rehearing.

See Practice.

Relinquishment.

An entryman may relinquish at pleasure
any legal subdivision of his entry, if no
transfer thereof has been made, and such
relinquishment will take effect immediately
upon its filing.

Repayment.

The filing of a preemption declaratory
statement is not an entry within the mean-
ing of the repayment act; hence repayment
of the fees and commissions paid on such
statement can not be allowed.....

433

137

122

The right of repayment will be recognized
in case of a desert-land entry erroneously
allowed for land on both sides of a mean-
dered stream, which was of the class which
should have been meandered, and which
renders the tracts embraced within the
entry noncontiguous, notwithstanding the
entry was canceled for a different reason.. 311
The right to repayment of the purchase
money paid on a desert-land entry will be
recognized where the entry as allowed is in
form prima facie noncompact, and it does
not appear from the record that it was as
nearly in compact from "as the situation
of the land and its relation to other lands
will admit of," and was for that reason
erroneously allowed and could not have
been confirmed..

354

Page.
The indemnity withdrawal made March
22, 1867, on account of the grant of July 27,
1866, for the Southern Pacific Railroad Com-
pany, was in violation of law and without
effect, and did not operate to reserve the
lands covered thereby from entry; hence a
homestead entry of lands while included
in the withdrawal was not, for that reason,
an entry erroneously allowed that could
not be confirmed, and repayment of the
fees and commissions paid by the entryman
is not authorized

Section 2357, Revised Statutes, fixing the
price of alternate even-numbered sections
within railroad limits at $2.50 per acre, was
not modified or repealed by the desert-land
act of 1877; hence an entry allowed under
said act, prior to the passage of the amend-
atory act of 1891, at the rate of $1.25 per acre,
was erroneously allowed and could not be
confirmed, on the payment of such price,
and the entryman is therefore entitled to
repayment..

270

277

88

193

Page.

the Executive order creating said reserva-
tion which prescribed what lands are ex-
cepted from the operation of that order,
but merely provided that entries might be
made so as to include the improvements of
settlers regardless of legal subdivisions of
the land....

Lands within said reservation which at
the date of the Executive order creating
the same were covered by a valid settle-
ment for which filing was not made within
three months after the filing of the town-
ship plat do not come within the exception
mentioned in said Executive order, and are
therefore not subject to entry under said
act of March 3, 1899

Act of June 4, 1897.

Circular of July 7, 1902, relative to lieu
selections...

No rights become vested in a selector un-
der the act of June 4, 1897, until there has
been a concurrence of (1) a relinquishment
to the United States of the base land with
proof that the relinquishment carries full
title, and (2) a selection of other land in
lieu of that relinquished with proof that
the land selected is at the time of such con-
currence of the character and condition
subject to selection.....

Public land suspended from disposition by
direction of the Commissioner of the General
Land Office, with the approval of the Secre-
tary of the Interior, is not subject to selec-
tion under the act of June 4, 1897...

57

57

372

312

318

Lands in the State of California claimed
under the swamp-land acts, which have
never been properly identified as of the
character intended to be granted to the
State under those acts, and which have
never been certified or patented to the State
thereunder, are not the subject of relin-
quishment or exchange under the act of
June 4, 1897
303

Lands claimed under the grant to the
State of Oregon by the act of July 2, 1864, to
aid in the construction of a military road,
for which no patent has issued, nor any legal
equivalent thereof, are not a sufficient basis
for an exchange under the act of June 4,
1897....
215

An applicant to make selection under the
act of June 4, 1897, who has in other respects
complied with the statute and existing regu-
lations but has failed to furnish the requi-
site proof of the character and condition of
the land selected, may subsequently perfect
his selection by submitting proof that such
land was at the time of the presentation of
his selection, and still continues to be, of the
character and condition subject to selec-
tion, the rights of the selector to be deter-
mined as of the date when the selection is
thus completed.....

An application to correct or change a lieu
selection under the act of June 4, 1897, should

220

Page.

be accompanied by evidence showing
whether or not the selector has transferred,
assigned, or encumbered the land first se-
lected or contracted so to do, whether any
conveyance or instrument affecting or at-
tempting to affect the title to such land,
or the selector's right under the selection,
is shown upon the records in the county or
other office where such records are usually
kept under the laws of the State or Terri-
tory where the land is situate, and as to
whether, since its selection, such land has
undergone any change in character or value
by the cutting or removal of timber or the
removal of any mineral or other thing of
value..

The rule of approximation permitted in
entries under the homestead and other
public-land laws may properly be applied
in case of an exchange of lands under the
act of June 4, 1897..

Selections of land under the act of June
4, 1897, while of record and awaiting consid-
eration, bar indemnity selection of the same
lands under a railroad grant.

Where a person owning lands within the
limits of a forest reservation executes a deed
of relinquishment thereof to the United
States under the act of June 4, 1897, and said
lands are subsequently excluded from the
reservation, while the deed remains in the
control of the vendor and unrecorded, the
vendor can acquire no rights under said
act by then filing the deed for record or caus-
ing it to be recorded.....

213

225

151

252

The relinquishment of lands selected in
lieu of lands within the limits of a forest
reserve on the ground that the lands in the
township wherein the selected lands are
situated have been suspended from disposal
pending an investigation to determine
whether the same were mineral in charac-
ter, will not be accepted where it appears
that the investigation has been concluded
and the lands found to be of the character
and condition subject to such selection.... 28
Where the owner of lands covered by a
patent, acting under the act of June 4, 1897,
executed a deed of relinquishment thereof
to the United States and recorded the same
in the proper county office conformably to
existing departmental regulations, while
the lands were within the limits of a forest
reservation, he became entitled, within a
reasonable time, to complete the transac-
tion by the selection of public lands in lieu
of those relinquished, notwithstanding the
subsequent exclusion from the reservation
and restoration to the public domain of the
relinquished lands

175

Directions given for the preparation of
appropriate regulations covering contin-
gencies such as presented in this case...... 175
The word "vacant" in the act of June 4,
1897, as in part descriptive of land thereby
made subject to selection in lieu of land

Page.

situated in a public forest reservation and
relinquished to the Government, is used in
its primary or ordinary sense of unoccupied,
and not in a special, restricted, or technical
sense intended only to describe land "not
taken or appropriated of record”

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..

288

288

Under proceedings in the land depart-
ment to acquire title to public land, no
rights in the land are to be regarded as hav-
ing become vested in the party seeking title
until he shall have performed all the con-
ditions and fulfilled all the requirements
necessary to establish his right to a patent. 288
Where a selection is not accompanied by

a showing that the land selected is vacant,
no vested rights are obtained by its presen-
tation, and an affidavit subsequently filed
to the effect that the land was vacant at the
time of attempted selection can not be
given a retroactive operation so as to per-
fect the selection as of the date of its filing. 312
A statement in the nonoccupancy affidavit
accompanying a lieu selection made under
the act of June 4, 1897, that the land selected
is "unoccupied by anyone having color of
title thereto," is not a proper showing re-
specting the condition of the land; if it is
occupied at all, the affidavit should state
fully all the facts relating thereto, so as to
enable the land department to determine
the character and effect of the occupancy.. 318
Proof that land is uninhabited is not the
equivalent of proof that it is vacant or un-
occupied

No vested right is obtained under the act
of June 4, 1897, until the selector has, among
other things, perfected his selection by the
submission of proof that the selected land
is nonmineral and unoccupied; and until
this condition precedent is complied with
the land is subject to exploration under the
mining laws, and if found to be mineral in
character is no longer subject to selection,
and no right can be secured by any subse-
quent attempt to perfect an incomplete se-
lection under which no right vested prior
to the development of the mineral quality
of the land

An entry or selection of public lands
which is not so far perfected as to confer an
equitable title or vested right does not take
the land included therein out of the opera-
tion of the mining laws; but, ordinarily,
where an entry or selection of public lands

220

220

Page.

is received and recognized by the local
officers, it will, while pending, prevent the
receipt or recognition of other applications
for the same land until such entry or selec-
tion is disposed of...

In a case where, before a selector com-
plies with the terms and conditions neces-
sary to secure a vested right under the act
of June 4, 1897, it is shown by exploration
and development that the selected tract is
in fact mineral, and is claimed and occu-
pied under a mining location, the selection
must be rejected

The reason for the requirement in the in-
structions of March 6, 1900, that the non-
mineral affidavit filed with an application
to make lieu selection under the act of June
4, 1897, should state whether the land se-
lected is within six miles of any mining
claim, does not exist where publication has
actually been had as required by the regu-
lations of December 18, 1899..

An application to make lieu selection un-
der the act of June 4, 1897, should not be re-
ceived during the pendency of a prior sim-
ilar application for the same land; but
where a second application was so received
prior to October 1, 1900, and held, awaiting
disposition of the prior application, until
after that date, it will, upon the final re-
jection of such prior application, be treated
as within the exception or saving clause of
the act of June 6, 1900

The owner of lands within a forest reser-
vation, who, acting under the act of June 4,
1897, executed and delivered to the United
States a deed therefor, and prior to Octo-
ber 1, 1900, made application for specific
tracts of unsurveyed land in lieu thereof, is
excepted from the provision of the act of
June 6, 1900, restricting lieu selections there-
under to surveyed land

The act of June 6, 1900, restricting lieu se-
lections under the act of June 4, 1897, to
surveyed lands, does not prevent the owner
of lands within a forest reservation, who,
acting under the act of June 4, 1897, exe-
cuted and delivered to the United States a
deed therefor, and, prior to October 1, 1900,
made application for specific tracts of un-
surveyed land in lieu thereof, but failed to
file therewith, or prior to October 1, 1900,
the required proofs showing the condition
and character of the selected lands, from
subsequently, if the condition and charac-
ter of the lands then permit, perfecting his
selection by supplying the requisite proofs,
the right of the selector to be determined
as of the date when the selection is thus
completed.

352

312

251

185

184

186

Page.

The even-numbered sections alternate to
those granted in aid of the construction of
the Northern Pacific Railroad are not "re-
served" within the meaning of that term
as employed in section 3 of the act of
March 2, 1899
198

In order to successfully assert, as against
an intervening railroad selection made un-
der the act of March 2, 1899, a right or claim
acquired by settlement upon unsurveyed
land with a view to entry thereof under the
homestead laws, the homestead applicant
must show that he established an actual
residence upon the land within a reason-
able time after settlement and that such
residence had been maintained to the date
of the presentation of his homestead appli-
cation

The fact that a tract of unsurveyed land
included in a list of selections filed by the
Northern Pacific Railway Company under
the provisions of section 4 of the act of
March 2, 1899, was properly described in said
list according to the description thereof in
the official survey subsequently approved,
does not relieve the company from filing a
second list, within three months after the
plat of survey of the township in which the
land is situated is filed in the local land
office, describing such tract according to
such survey, as required by said section;
and failure to file such second list within
the required time subjects the land to inter-
vening claims

MILITARY.

196

396

The departmental order of June 13, 1899,
did not contemplate the restoration of the
lands in the Fort Hays abandoned military
reservation to entry, but only to settlement;
hence no legal claim attached by the ten-
der of an application to enter said lands
while such order remained in force or by
an appeal from its rejection......
114

Reservoir.

The provisions in the act of March 2, 1889,
limiting the disposal of lands within the
ceded portion of the Great Sioux Indian
reservation to actual settlers under the pro-
visions of the homestead law and the laws
relating to townsites, does not reserve said
lands from the operation of the act of Jan-
uary 13, 1897, authorizing the use of public
lands for reservoir purposes..

The approval of a map or plat of survey
of a constructed reservoir, under the act of
January 13, 1897, relates back as of the time
of the filing thereof; and no further dispo-
sition should be made of the lands upon
which such reservoir has been constructed,
pending final action upon such map or plat,
nor after the approval thereof................
Residence.

The default of a homestead entryman in
the matter of establishing residence is not

246

246

Page.

cured, under the act of June 16, 1898, by his enlistment in the military or naval service of the Government in time of war......... 169 In the commutation of homestead entries constructive residence from the date of the entry will be recognized where settlement is made and residence established within six months thereafter

Res Judicata.

A change in the person holding the office of Secretary of the Interior does not defeat or prevent a review or reversal in any instance where the Secretary making the ruling, or rendering the decision, if still holding the office, would be in duty bound to review or reverse his own act.......

Right of Way.

RAILROAD.

Regulations of July 8, 1901, concerning telegraph and telephone lines, electrical plants, tramroads, etc....

In case of conflicting applications for right of way for a railroad through a canyon, pass, or defile under the act of March 3, 1875, the Department will approve the maps of location filed by each company, if regular, without regard to any question of priority, and leave to the courts, in the event it becomes necessary, any determination as to the rights of the companies under their respective applications......

The approval of the Department of the Interior is necessary, under the provisions of the act of March 2, 1899, to the acquirement of a right of way by a proposed line of railroad over an Indian allotment, and to the privilege granted by the act of March 3, 1875, to use such a right in common with another company

A railroad company upon compliance with the provisions of the act of March 2, 1899, is authorized to acquire thereunder rights of way through lots or lands situate within the limits of any townsite in the Indian Territory, the national or tribal title to which has not been extinguished by full payment of the purchase money therefor and by the execution and delivery of deeds of conveyance thereof in accordance with an act of Congress authorizing such conveyance...

The right of a railroad company to extend its line of road over and across a navigable stream within the Indian Territory by means of a bridge to be constructed over such stream for that purpose can only be secured by act of Congress granting such privilege; but this does not affect the authority of the Secretary of the Interior in approving maps of definite location for rights of way, under the act of March 2, 1899, for even though the stream be navigable, his approval of the maps is a condition to the right to approach the bridge from the Indian lands on either side of such stream..

159

87

13

411

119

39

39

Page.

The approval of an application for a right of way and necessary ground upon public land, under the act of May 14, 1896, for the purpose of generating, manufacturing, or distributing electric power, does not amount to a reservation or appropriation of the land embraced in the application, so as to take it out of the operation of the public land laws; and the claimant under such approved application is in no position to object to the disposal of the lands by the Government.......

STATION GROUNDS.

The act of April 25, 1896, provides for the acquirement of additional grounds "at stations now existing or for the establishment of new stations or depots:" hence applications for additional grounds at stations not existing at the time of the passage of said act can not be allowed....... TOLL ROAD.

360

124

Circular of February 13, 1901, under act of January 31, 1901 .... 131

Circular of November 14, 1901, requiring nonsaline affidavit in case of application to enter nonmineral land..

Circular relative to nonsaline affidavits to be required in applications to enter public lands under the homestead and other laws providing for the dispospal of nonmineral lands in States and Territories excluded by statute from the operation of the general mining laws, approved, and directions given for the amendment of the regular nonmineral affidavit by inserting therein a nonsaline clause

131

130

Until the passage of the act of January 31, 1901, the policy of the Government was to reserve saline lands from disposition under any of the public land laws, whether relating to the disposition of agricultural lands or relating to the location and purchase of mineral lands, excepting as provided by the act of January 12, 1877........ 389