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.
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...
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....
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.
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.....
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..
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..
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...
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
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.....
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
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
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..
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
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.
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
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
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
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
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.......
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..
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.
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
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
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