within the statutory period, an interven- ing desert-land entry will defeat said right; and if the entryman thereafter voluntarily relinquishes his entry, he is not entitled to, on the ground that his entry was canceled "for conflict".
A desert entry of land embraced within a prior pre-emption filing is not an entry erroneously allowed" within the mean- ing of the repayment act, though an entry so made is subject to the subsequent as- sertion of the pre-emptor's right.......
Of the purchase price of the land can not be allowed a desert entryman who fails to furnish supplemental proof of re- clamation, properly called for by the local office, and abandons his claim to the land.
Of the money paid on a desert-land entry can not be made where such entry is properly allowed on the proofs presented, but, on subsequent proceedings, is can- celed on account of the non-desert char- acter of the land
The provisions of 2362, R. S., and of the act of June 16, 1880, with respect to, con- template relief only in cases where, for some reason not within the entryman's control, title to the land can not be passed by the government..
There is no statutory authority for the return of a double minimum excess in fees and commissions erroneously required on a homestead entry of lands in fact single minimum, where such money has been covered into the United States Treasury.
An even-numbered section lying within the common granted limits of two rail- road grants remains at double minimum though one of such grants may have been forfeited, and an application for, on the ground of double minimum excess must be accordingly denied..
The right of assignees to, is limited to assignees of the land, and does not extend to one holding an assignment of the claim for the money paid on the entry...
A mortgagee is not an assignee, within the intent and meaning of the act provid- ing for, if the mortgage is merely a lien on the land
No right of, is acquired by an assignee whose interest in the land is not obtained until after the cancellation of the entry.. 246 An application for, made by a mortgagee of the land, who also holds an alleged as- signment of the right to repayment, does not present a case wherein the status of the applicant, as an assignee, must be de- termined, if the duplicate receipt is not surrendered and all claims to the land properly relinquished...
On application for, by an entryman he must show that the land is free from in- cumbrance..
Of the fees and commissions paid on an entry will not be allowed where the entry is relinquished on account of the undesir able character of the land and a second entry made....
The statutes providing for, contemplate only the return of money actually paid, and where land is paid for in part by cash and in part by a military bounty land warrant the Secretary of the Interior has no authority, in allowing, to draw his warrant upon the Treasury for a sum larger than the cash payment made by the entryman..
On application for the return of pur- chase money by a patentee who was re- quired to purchase under section 5, act of March 3, 1887, when in fact the land passed by the railroad grant under which he held, the applicant should surrender the patent, but should not be required to execute a deed of relinquishment.....
The provisions of section 7, act of March 3, 1891, do not in terms nor by implication have any application to the matter of..... Reservation.
Final proof can not be submitted on a homestead entry made under the act of August 23, 1894, of lands within an aban doned military, prior to appraisal ........................ The phrase "public lands adjacent there to," as used in the act of June 4, 1897, in making provision for the survey of forest reserves, should be construed to mean townships which actually adjoin said re- serves, and such townships are to be sur- veyed under the supervision of the Direc- tor of the Geological Survey...... Residence.
A homestead entry will not be defeated by the fact that the entryman, through mistake, builds his house outside the lines of his land, where in good faith he resides in the house so located.......
An applicant for the right of homestead entry who has continuously resided on the land embraced within his application for a period of five years, and applied to enter during said period, is not thereafter required to maintain, as a prerequisite to patent
Registering and voting for several suc- cessive years in a precinct in which the land is not situated, on an oath as to actual, in such precinct raises a conclusive pre- sumption against a claim of, for the same period on the land....
Under the departmental construction of section 2297, R. S., a homestead entryman has six months from the date of his entry within which to establish actual, on the land......
A deserted wife who secures the can- cellation of her husband's homestead entry, and, as the head of a family, there- after makes a homestead entry of the land, is entitled, on final proof, to credit for her, on the land prior to the date of her husband's desertion.... Res Judicata.
Prior to the issuance of patent, the Land Department may reopen a case, to correct an error in the decision thereof, and readjudicate the same, after due notice to the parties....
A decision of the Department, in ac- cordance with the rulings then in force, that a certain tract of land passed under a railroad grant, does not, in view of the provisions of the act of March 3, 1887, re- quiring the adjustment of railroad grants "in accordance with the decisions of the Supreme Court," preclude subsequent departmental action, on the application of a third party, under the later decisions of said court......................
Revised Statutes.
See Tables of Cited and Construed, page
Right of Way, and Station Grounds.
The actual use of land as station grounds, prior to survey, by a company that has filed its articles of incorporation, proofs of organization, and constructed a rail- road over unsurveyed land, entitles said company to an approval of a plat of said grounds, as against an intervening home- stead entry, if such use antedates the settlement of the homesteader........................ CANAL AND DITCH.
The acts of March 3, 1891, and May 14, 1896, differ so widely in the character of the estate granted, as well as in the uses to which the, may be devoted, and the ex- tent thereof, that an application can not properly be allowed on the two acts taken together; the permission must rest either upon one act or the other.... River.
When adopted as the boundary of a State, sudden changes in the channel do not affect the boundary line as originally established...
Saline Land.
The provisions in the act of February 14, 1859, granting salt springs and adjacent lands to the State of Oregon, and the act of December 17, 1860, amendatory thereof, so far as they fix a time for selections under said grant, are directory and not manda- tory; but as the grant so made only be
comes effective as to specific tracts on selec- tion by the State, the right to make such selections after the expiration of the time fixed therefor will be defeated by an inter- vening adverse right asserted under the general provisions made for the disposal of saline lands by the act of January 12. 1877....
School Lands.
The authority of the Secretary of the Treasury in the matter of, conferred by the act of May 20, 1826, was transferred to the Secretary of the Interior by the act organizing the Interior Department......
The act of February 28, 1891, amending sections 2275 and 2276, R. S., protects set- tlement on, prior to survey, and said stat- ute in that respect supersedes the provi- sions of sections 10 and 11 of the act of February 22, 1889
An alleged loss in an unsurveyed town- ship will not authorize a school indemnity selection...
The special right to enter additional lands conferred by the act of February 10, 1894, when such additional lands become subject to entry, is defeated by a prior selection of the land as school indemnity under the provisions of the act of March 2, 1895...
The approval of an indemnity selection by the Secretary of the Interior passes the title thereto, and, in contemplation of law, makes such selection the act of the Secretary, and it is thereafter not mate- rial to inquire how such selection was made in the first instance......
A certification under the act of August 3, 1854, of lands on account of a railroad grant that were, at the date of the grant. embraced within a pending prima facie valid school indemnity selection, is no bar to the subsequent approval of such selec- tion....
An indemnity selection not made with- in the land district in which the loss oc- curred, as required by section 2276, R. S., may be held valid, in the absence of any intervening adverse right, under the amendatory act of February 28, 1891, which removed said restriction.....
The title of the State to, vests at the date of the completion of the survey, and if the land is not then known to be min- eral in character, the subsequent discov ery of mineral thereon will not divest the title that has already been passed........................ The State, by a school indemnity selec- tion in lieu of land alleged to be mineral in character, waives its claim to the basis, which may be thereupon disposed of as part of the public domain.............
A discovery of mineral on each twenty acres of a placer location serves to except the whole location from school indemnity selection.....
A purchase, after survey, of the pos sessory right and improvements of one who settled on school land prior to survey, does not carry with it any right to the land as against the school grant........ Scrip.
An application for the issuance of cer- tificates of location under a special act of Congress authorizing and requiring the Commissioner of the General Land Office to permit the person named therein "to enter 160 acres of public land subject to entry under the homestead law" must be denied where the act contains no pro- vision in terms authorizing such action, and furnishes no basis for the exercise of discretionary power in that respect...... Selection.
See Railroad Grant; School Lands; States.
While as between two parties claiming the same tract, the right of one as a set- tler may not defeat the superior right of the other as a successful contestant, yet if such contestant thereafter enters the land and relinquishes the entry, such set- tlement right, if maintained, will defeat the subsequent entry of a third party....
The cancellation of a homestead entry as to part of the land covered thereby, on account of an adverse claim, will not pre- vent the entryman from subsequently asserting his right as a settler to the entire tract covered by his original entry, as against a third party...
Acts of, performed by one claiming the right to make a second homestead entry, prior to his application for the exercise of such privilege, are not invalid, if it is found that the settler is in fact entitled to make such entry
Priority of, must be determined by acts performed indicative of the settler's intent, and not by priority of presence on the land, or declarations of intention to settle thereon....
An alleged act of, set up to establish priority of right as against an adverse claim, can not be accepted as sufficient, if said act is not of a character to give notice of the settler's claim.....
The conditions attendant upon opening lands in Oklahoma require the recogni- tion of extremely slight acts of, in determining priorities between adverse claimants
Under the conditions attendant upon the opening of lands to, in Oklahoma the sticking of a stake may be recognized as initiating a right, as against competing settlers on the day of opening, but such act will not be available as against subse- quent settlers if not followed, within a reasonable time, by additional acts of....
The rule recognizing slight acts of, as between parties making the run for Okla. homa lands on the day of opening, is not applicable to the ordinary case of a party who claims priority of
On land reserved for a public highway, along a section line. as provided under section 23, act of May 2, 1890, prior to the actual location and use of such highway, is valid and extends to the adjacent quar ter section on which settlement is intended to be made.
A homestead entryman has six months from the date of his entry within which to establish actual residence; but during such period his entry occupies the status of a settlement claim, and will defeat the right of entry on the part of a prior home- stead settler who has failed to assert his claim within the statutory period........ Of a homesteader, who dies prior to the expiration of the time given for the asser- tion of his right, without having made application to enter, inures to the benefit of his widow; and her subsequent remar- riage will not defeat her claim as the suc cessor to the right of her deceased hus- band...
Circular instructions of May 27, 1891, for making selections in Montana, North Dakota, South Dakota, and Washington. Circular of June 17, 1897, modifying instructions of May 27, 1891, with respect to selections by
A State selection made prior to the offi cial filing of the township plat is prema- ture and invalid....
The boundary between the Indian Ter- ritory and the State of Texas is the line of the middle of the main channel of Red River as it existed when Texas was an- nexed to the United States, and subse- quent sudden changes in the current or main channel of said river will not in any way affect the location or position of said boundary line as it lay upon the earth's surface when established
The date of a township, is not fixed by the date of the work in the field, but by the approval of the plat...
Where it is apparent from the record that in the, of a township, a large body of land adjacent to a navigable lake has been omitted through the establishment of a meander line between alleged swamp and dry lands, instead of at the true shore line of the lake, a survey of the lands so omitted should be made...
An order may properly issue for the, of a tract of land omitted from the original survey through the erroneous meander of a slough instead of a river proper...............
The approved plat of an official, is con- clusive as to the designation of tracts em- braced therein, and must govern in the disposal of the lands covered thereby..
An application of a State for, and reser- vation of a township under the act of August 18, 1894, must be denied, where, prior to such application, a survey of the township has been ordered for the benefit of settlers
Swamp Land.
Act of February 17, 1897, making provi- sion for sale and entry of lands embraced in Mississippi list No. 7; circular of March 22, 1897.......
The claim of a State under the grant of, must fail if it does not appear that the lands were of the character granted at the date of the grant...
A patent may issue to the State of Florida under the swamp-land act for the unsurveyed tract known as the "Ever- glades," subject to the right of the State under its grant of school lands.......
dence of the same character, as required to entitle the State to lands under its grant
By the act of March 2, 1849, all the swamp lands in the State of Louisiana were granted to said State, except lands bordering on streams, rivers, and bayous, which were treated by Congress as there- tofore reclaimed from their swampy char- acter, and falling within the provisions of the act of February 20, 1811, which gave to said State five per cent of the proceeds of their sale in order to provide a fund for their reclamation..........
At the date of the passage of the gen eral swamp land act of September 28, 1850, there were no lands in the State of Lou- isiana subject to the operation of said act, as all of the swamp land had, prior thereto, been granted to said State by the special act of 1849; and it therefore follows that the State is not included within the in- demnity provisions made by the act of March 2, 1855, for said provisions were specifically limited to States included in the general act..
The grant of, does not include alternate reserved sections within the limits of a prior grant to the State for canal pur- poses.....
Under section 2488, R. S., the return of land as swamp and overflowed is conclu- sive evidence as to the character of the land so returned and represented on the township plat, and this provision is not defeated by the act of June 17, 1892, granting homestead rights in the Klamath River Indian reservation............... Timber and Stone Act.
Prior to the issuance of final certificate under a timber land application the local office has full jurisdiction to order a hear- ing on a protest, or adverse claim, filed against such application.....
Does not allow the purchase of land that is inhabited by a bona fide settler... The right to take lands chiefly valuable for the timber thereon under the settle- ment laws is limited to claims asserted in good faith for the purpose of securing a home.
An applicant for the right of timber land purchase must show that the land applied for is free from adverse occu- pancy and that he has made no other ap- plication to purchase under the timber- land act.....
Land covered by the bona fide settle- ment claim of a pre-emptor is not subject to timber-land purchase; and the appli cant for the right of purchase can not take advantage of irregularities in the assertion of the pre-emption claim.....
Land subject to purchase under the, is not excluded from homestead entry...
See Application; Entry.
Timber Cutting.
Circular of June 29, 1897, with respect to, for purposes of exportation
In construing the provisions contained in the two acts of June 3, 1878, and the act of August 4, 1892, with respect to tim- ber cutting, it must be held that the first of said acts of 1878 (20 Stat., 88), relates to all mineral lands of the United States, but to none of any other character, and permits the cutting of timber on such lands for building, agricultural, mining, and other domestic purposes, but not for the purpose of sale or commerce, and that the second of said acts (20 Stat., 89), as amended by the act of 1892, relates to all non-mineral lands of the United States in all public land States and prohibits the cutting of timber on such lands, except as therein otherwise provided ....
Applications for permission to cut tim- ber should not embrace above one quarter section; and no applicant will be accorded a second permit unless it satisfactorily appears that a most urgent necessity exists therefor
The action of a homesteader in cutting and selling timber growing on the land covered by his entry should not be held sufficient to justify cancellation of the entry, on the ground of fraudulent intent in making the same, if the entryman is actually residing on the land and ap- parently expending the proceeds of the timber in the permanent improvement of his claim......
In the disposition of, under the act of May 14, 1890, an additional assessment, for the legitimate purposes of the act, is authorized where such action operates uniformly upon all lots alike; but there is no authority for such an assessment where the burden falls upon the un- claimed lots alone...
The occupancy of a, by the agents of a town-site company confers no right that will defeat an adverse occupant of the remainder of said lot who is claiming the whole of it...
Occupancy of a, acquired through tres- pass and the wrongful dispossession of a prior occupant will not defeat the right of such occupant to a deed, though the trespasser may be the sole occupant at date of the town-site entry..
A certificate of right issued by the pro- visional authorities of a town to a lot claimant is only to be regarded as prima facie evidence of title where there is an adverse claim at the time the case is con- sidered by the town-site board.......
Adverse occupants in good faith of a, at the date of a town-site entry may be treated, in cases where priority of settle- ment does not determine their rights, as joint applicants and receive a deed jointly, according to their respective holdings, though such occupants may have filed separate and adverse applica- tions
In the interest of the government and intending purchasers a sale of, under sec- tions 2380-2381, R. S., may properly take place at the town site, under the personal charge of the local officers.................. Town Site.
An application to make entry under section 2389, R. S., will not be allowed, where the number of bona fide occupants is not given, and it is not manifest that the occupants in fact desire in good faith to make such entry, and also where the application covers land apparently min- eral in character and in close proximity to another town......
The right to make an additional entry only exists where the applicant has, prior thereto, made a townsite entry of public land, and is limited then to land contigu ous to that embraced within the original entry
On the application of trustees to make entry a charge of abandonment, as against the townsite settlers, may be properly en- tertained, and notice to said trustees of the hearing ordered thereon is notice to lot claimants....
Entries in the Cherokee Outlet can only be made through townsite boards........ A board of trustees should not be dis- charged from any portion of the trust im- posed upon it, until the whole purpose of the trust is accomplished, or until such time as it may be relieved entirely from its duties
Transferee.
See Alienation, Confirmation. Wagon Road Grant.
Mere occupation or use of a body of un- surveyed public land of indefinite area, without intent to acquire title to the par- ticular portion thereof in controversy, is not such an appropriation of that portion as to except it, or the subdivision of which it is a part, from the operation of a. Action suspended on all entries allowed for lands within the conflicting limits of the grants for The Dalles Military Wagon Road Co., and the Northern Pacific R. R. Co., pending a judicial determination of the status of said lands
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