quently amended to describe in lieu of the
tract entered the tract actually settled upon
and intended to be taken, does not have the
effect to fix the price of the erroneously-
entered tract at 75 cents, the status thereof
remaining the same with respect to price
as though the erroneous entry had never
been made..

The act of April 23, 1904, providing for the
disposition of the Rosebud Indian lands,
fixed the price of all lands entered or filed
upon within the first three months after
opening at four dollars per acre, those en-
tered or filed upon during the second three
months at three dollars per acre, and those
entered or filed upon after the expiration of
six months at two dollars and fifty cents per

acre.

Held: That where a tract was entered
during the first three months the price
thereof was thereby fixed for all time at four
dollars per acre, and in event of cancellation
of the entry it could not thereafter be again
entered except upon payment of such price,
regardless of whether the second entry was
made during or after the expiration of the
first three-month period...

The fact that entries for lands required by
law to be disposed of at double-minimum
may have been erroneously permitted to be
carried to completion upon payment of the
single-minimum price will not justify the
allowance of further entries for such lands at
the minimum rate....

Railroad Grant.

GENERALLY.

313

213

319

While the joint resolution of May 31, 1870,
provides that all lands thereby granted to
the Northern Pacific Railway Company
which shall not be sold or disposed of, or
remain subject to mortgage, at the expira-
tion of five years after the completion of the
entire road, shall be subject to settlement
and preemption, the land department is
without authority, in the absence of specific
legislation, to authorize the sale or entry of
any such lands which have been earned by
the company and are still held by it.
Where such lands have been patented to
the company the jurisdiction of the land
department has terminated, and where
earned but not patented it is the duty of
that department to issue patents therefor,
leaving for determination by the courts
questions arising under said provision..... 77
SELECTION.

The company is not restricted, in making
indemnity selections, to land on the same
side of the line of road as the land lost to the
grant and assigned as base for the selection. 378
Where at the date of selection by the com-
pany the land is free from any adverse claim
and is otherwise subject to selection, the
selection and claim of the company there-

A reservation of public lands by the mili-
tary authorities operates as a segregation
thereof; and no rights attach thereto under
a railroad grant upon the subsequent defi-
nite location of the line of road...

A homestead entry of record at the date of
the filing of the map of definite location of
the Northern Pacific Railroad defeats the
operation of the grant as to the tract em-
braced in the homestead claim, notwith-
standing the entryman was at that date in
default and the lifetime of the entry had
expired.....

An abandoned donation claim, though
uncanceled of record at the date of the defi-
nite location of a railroad grant, does not
except the land covered thereby from the
operation of the grant..
ADJUSTMENT.

The Northern Pacific Railway Company
is the lawful successor in interest to the land-
grant rights of the Northern Pacific Railroad
Company..

Lands within the former Siletz Indian Res-
ervation and opened to disposition by the
act of August 15, 1894, are not subject to se-
lection by the Northern Pacific Railway
Company under the act of July 1, 1898..

An application to make forest lieu selec-
tion under the act of June 4, 1897, by one
who has done all that the law requires to
entitle him to the selection, constitutes a
claim subject to adjustment under the act
of July 1, 1898, as extended by the act of
May 17, 1906.

The act of July 1, 1898, contemplates that
the right of lieu selection accorded thereby
shall be exercised by the railway company;
and the presentation of such a selection by a
successful contestant is not a proper exercise
of his preference right of entry..

Any conveyance by the Northern Pacific
Railway Company of lands within the pur-
view of the act of July 1, 1898, after the ac-
ceptance of that act by the company, is sub-
ject to the right of the individual claimant
to assert his right of election to retain the
land in conflict..

One who settled upon a tract of land but
did not continue to reside thereon, and
neither on January 1, 1898, nor at the date of
the act of July 1, 1898, was claiming the land
but had apparently abandoned the same, has
no such claim as is subject to adjustment
under that act or the act of May 17, 1906, ex-
tending its provisions

An application to purchase under the tim-
ber and stone act, accompanied by a tender
of fees, presented before, but upon which

496

217

259

378

46

399

291

505

385

Railroad Grant-Continued. Page.

ADJUSTMENT-Continued.

proof and payment were not made until
after, May 31, 1905, does not present a claim
subject to adjustment under the act of July
1, 1898, as extended by the act of May 17,
1906.

Selection by an individual claimant in lieu
of an uncompleted claim relinquished under
the provisions of the act of July 1, 1898, is
restricted to land in one compact body, in
conformity with the law under which the
original claim was initiated; but selection
in lieu of a completed claim may be made of
noncontiguous tracts, provided it is confined
to one transaction and to lands in the same
land district.

Determination of the issue raised by a pro-
test against a selection of unsurveyed lands
by the Northern Pacific Railway Company
under the act of July 1, 1898, based upon
adverse settlement rights, should not be
postponed to await survey of the lands, but
hearing to settle the controversy should be
promptly had...

One claiming lands within the limits of the
Northern Pacific grant who, either prior or
subsequent to the act of July 1, 1898, pro-
viding for the adjustment of conflicting
claims of individuals and the company, de-
nuded the land of its timber, which consti-
tuted its chief value, does not come within
the intent and purpose of the act and is not
entitled to have his claim adjusted under its
provisions...

Railroad Lands.

Instructions of March 2, 1910, with respect
to price of lands within granted limits of
railroad....

An abandoned donation claim, though
uncanceled of record at the date of the defi-
nite location of a railroad grant, does not ex-
cept the land covered thereby from the oper-
ation of the grant; and until it is determined
by the land department that the land is ex-
cepted from the grant, a purchaser thereof
from the company is not entitled to the right
of purchase accorded by section 5 of the act
of March 3, 1887..

Where the patent issued upon a homestead
entry for lands within the limits of the grant
in aid of the Mobile and Girard Railroad was
declared invalid by the courts on the ground
that the lands had passed to the railroad
company under its grant, and the holder
of the homestead title thereupon purchased
the railroad title, a subsequent sale of the
land by him conveyed every muniment of
title he then possessed, but is not of itself
evidence that he thereby intended also to
dispose of his right to indemnity under the
act of March 4, 1907, for loss of the homestead
title, in the absence of positive proof that
such was the intention..

526

326

539

616

468

259

237

The right to select lands under the act of
March 4, 1907, as indemnity for loss of the
homestead title, was intended for the benefit
of the person who lost that title, whether the
entryman himself or his transferee, and not
for the benefit of a purchaser of an after-
acquired title..

Where the patent issued upon a home-
stead entry for lands within the limits of the
grant in aid of the Mobile and Girard Rail-
road is declared invalid by the courts, on the
ground that the lands had passed to the
railroad company under its grant, and the
person holding the homestead title there-
after acquires the railroad title, he is not
required, as a condition to the right to select
indemnity under the act of March 4, 1907,
for loss of the homestead title, to relinquish
or reconvey to the United States the title
derived through the railroad company...

Where the homestead patent fails as to
part of the land only, the person holding
thereunder may select an equal quantity of
land to compensate for the loss of that part,
without being required to surrender to the
United States the title to the remaining
portion....

By making an entry for less than 160
acres and receiving credit thereon, under
the act of April 19, 1904, for residence and
improvements upon a prior entry which
failed by reason of the decision of the Su-
preme Court in the case of Wisconsin Cen-
tral R. R. Co v. Forsythe holding the land
to have passed to the railroad company
under its grant, the entryman exhausted
his right under that act, and is not entitled,
in connection with an additional entry, to
any further credit, under section 6 of the
act of May 29, 1908, on account of such resi-
dence and improvements.....

The purpose of section 6 of the act of May
29, 1908, was to place homestead settlers
upon lands in odd-numbered sections with-
in the conflicting limits of the railroad grants
therein mentioned, who were prevented
from completing title to the lands by reason
of the decision of the Supreme Court in the
case of Wisconsin Central R. R. Co. v. For-
sythe, in the same situation, relatively, as
to other lands entered by them within the
prescribed period, as they up to the time
of the court's decision had assumed they
occupied with reference to the lands settled
upon within the railroad grants.......

Where prior to actual knowledge that the
land he had settled upon was not subject to
homestead entry the homesteader had so far
complied with the law as to have acquired
a vendible interest in the land if it had been
subject to such entry, the right conferred
upon him by the act of May 29, 1908, would
be transferable to the same extent as his in-
terest in the land settled upon would have

237

242

242

271

460

3098-VOL 38-09-42

Railroad Lands-Continued. Page.

been; but any attempted transfer of such
right by one who had not prior to such
knowledge sufficiently complied with the
law to acquire a vendible interest, confers
no right upon the purchaser, and an entry
allowed under such attempted transfer, in
the name of the homesteader but in the in-
terest and for the benefit of the transferee, is
void......

Reclamation.

GENERALLY.

General regulations.

Instructions of June 30, 1909, relative to
condemnation proceedings to acquire im-
provements on lands needed for reclama-
tion purposes...

Instructions of September 17, 1909, with
respect to proof and construction charges
on homesteads...

Instructions of November 15, 1909, rela-
tive to information from fiscal records of
field officers of Reclamation Service.......

Paragraph 6 of the regulations of January
19, 1909, to the effect that the prosecution of
contests affecting lands included within a
first-form withdrawal under the reclamation
act, out of which preferred rights of entry
might arise, should not be allowed, has no
application to a protest by one claiming
under a placer location against a conflicting
desert-land entry, no question of preference
right of entry being involved in such pro-
ceeding....

WITHDRAWAL.

An application to make homestead entry
for land embraced within a first-form with-
drawal under the reclamation act should not
be allowed, nor received and suspended to
await the possible restoration of the lands to
entry, but should be rejected............

The fact that lands are within a rec-
lamation withdrawal does not prevent ad-
ditional entry thereof under section 2 of
the act of April 28, 1904, where farm units
have not been established and where the
first original entry, to which the additional
entry must be contiguous, was made subject
to the restrictions and conditions of the
reclamation act, the combined original and
additional entry, however, being subject to
adjustment to a farm unit when estab-
lished.........

460

620

58

229

311

314

349

233

A settler on unsurveyed land subse-
quently embraced in a withdrawal under
the reclamation act as subject to reclamation
under an irrigation project, may, upon sur-
vey of the land, make and complete entry
for the full area allowed by law and appro-
priated by his settlement, notwithstanding
such withdrawal previous to entry, free of
the added conditions and limitations im-
posed by the reclamation act upon settlers
subsequent to withdrawal.
WATER RIGHT.

Instructions of March 5, 1910, relative to
water-right charges upon lands within
reclamation projects sold under foreclosure
proceedings...

Final certificate and patent will not issue
upon a desert land entry within a reclama-
tion project until all payments for a water
right under such project have been made
and the water right permanently attaches
to the land..

Where an entry within the Truckee-Car-
son reclamation project was made too late in
the year 1907 to obtain any benefit by the
use of water for the crop season of that year,
the first instalment for water-right charges
did not under the instructions of May 6,
1907, considered in connection with the
instructions of August 5, 1904, become due
until December 1, 1908...
Records.

Instructions of April 16, 1910, respecting
inspection of serial-number registers in local
offices.

Relinquishment.

The relinquishment of part of a homestead
entry, which would render the remaining
tracts noncontiguous, should not be ac-
cepted.....

Where, however, such a relinquishment
was accepted, and the entryman upon faith
of such action complies with the law and
submits proof with respect to the remaining
noncontiguous tracts, the entry may be sub-
mitted to the Board of Equitable Adjudica-
tion with a view to confirmation....

A homestead entry by one who purchased
the improvements and relinquishment of a
prior entryman will not be canceled to rein-
state the former entry, in the absence of
fraud or bad faith, merely because the re-
linquishment of the former entry was filed
after the entryman's death.................

603

480

194

374

575

412

412

475

As between the parties a sale of improve-
ments and relinquishment of an entry is a
valid contract, and though it conveys no
right as against the United States, it is ob-
ligatory on the entryman and his heirs, and
the equity of the purchaser to make entry
may properly be recognized if exercised
promptly and prior to the intervention of
any adverse right............
475

In adjudicating an application for repay-
ment of fees paid in connection with railroad
selection lists, based upon the elimination
of tracts therefrom by cancellation, the list
should be taken as the unit and the matter
adjusted under the rules in force at the time
the selection was made; and in making the
adjustment the land department may take
into consideration all the lists filed by the
company, and is not confined to the lists
upon which the application for repayment
is based..

The act of April 23, 1904, providing for the
disposition of the Rosebud Indian lands,
fixed the price of all lands entered or filed
upon within the first three months after open-
ing at four dollars per acre, those entered or
filed upon during the second three months at
three dollars per acre, and those entered or
filed upon after the expiration of six months
at two dollars and fifty cents per acre.

Held: That where a tract was entered dur-
ing the first three months the price thereof
was thereby fixed for all time at four dollars
per acre, and in event of cancellation of the
entry it could not thereafter be again entered
except upon payment of such price, regard-
less of whether the second entry was made
during or after the expiration of the first
three-month period...

The inadvertent inclusion of a tract of
Sioux Indian lands in a homestead entry, at
a time when the land was rated at 75 cents
per acre, which entry was subsequently
amended to describe in lieu of the tract en-
tered the tract actually settled upon and
intended to be taken, does not have the
effect to fix the price of the erroneously en-
tered tract at 75 cents, the status thereof
remaining the same with respect to price as
though the erroneous entry had never been
made; and where a subsequent entryman
was required to pay 75 cents per acre there-
for, after the price of all undisposed-of Sioux
lands had been reduced to 50 cents, under
the belief that the price had been fixed by
such previous entry, he is entitled to repay-

ment of the excess..

262

213

313

Notwithstanding the act of June 5, 1872,
opening the lands in the Bitter Root Valley
above Lo-Lo Fork to settlement, fixed the
price thereof at $1.25 per acre, the even-num-
bered sections falling within the primary
limits of the grant to the Northern Pacific
Railroad Company were, under section 2357
of the Revised Statutes, properly rated at
$2.50 per acre; and an entryman required
to pay the higher price is not entitled to re-
payment of the difference.....

ACT OF MARCH 26, 1908.

A mortgagee under a mortgage which is
merely a lien on the land is not a "legal
representative" within the meaning of the
act of March 26, 1908, authorizing repayment
of purchase money and commissions to the
persons who originally made the payment
or their "legal representatives”.

The Northern Pacific Railway Company
having voluntarily relinquished a selection
under the act of July 1, 1898, after having
paid the required fees, and subsequently
embraced the same tracts in other lists un-
der that act and again paid fees thereon, is
entitled under the act of March 26, 1908, to
repayment of the fees paid upon the first
selection.

319

151

270

The amount paid in making purchase
under section 2 of the act of June 15, 1880,
of a tract of land embraced in a second sol-
diers' additional entry canceled under the
ruling, since changed, that one entry ex-
hausted a soldiers' additional right, whether
for the entire right or not, does not consti-
tute an excess payment within the meaning
of section 2 of the act of March 26, 1908, and
repayment thereof can not be allowed..... 231
Where the proof submitted on a timber
and stone claim is challenged by the land
department and the claimant notified that
unless he applies for a hearing his claim will
be rejected, and to avoid the expense of a
hearing he relinquishes the claim and ap-
plies for return of the purchase money, re-
payment may be allowed under section 1 of
the act of March 26, 1908, in the absence of
fraud or bad faith, the action of the land de-
partment amounting to a rejection of the
proof within the meaning of that section... 564
ACT OF FEBRUARY 24, 1909.

In making up an account under the act of
February 24, 1909, authorizing repayment
of any excess of amounts deposited for the
survey of mining claims, the surveyor-gen-
eral should state the account from the best
data and information obtainable; and a bona
fide official account, prepared from such
data, will be accepted by the General Land
Office and the department, unless clearly
shown to be erroneous..

469

Circular of September 16, 1909, relative to
publication of notice of opening of forest
lands..

Regulations of October 16, 1909, relating to
surveys of homestead entries in national
forests.

One who since the act of August 30, 1890,
has acquired title to 320 acres in the aggre-
gate under the agricultural public land laws
is disqualified to make entry in a national
forest under section 2 of the act of June 11,
1906..

No such preferential right of selection is
secured by the application of a State for the
survey of lands under the act of August 18,
1894, as will prevent the inclusion of the
lands within a national forest; and such
application does not constitute a "filing"
or "entry" within the meaning of the ex-
cepting clause in the proclamation of May
29, 1905, establishing the Sawtooth, now
Boise, National Forest..

207

278

566

219, 224

Where the homestead right is initiated by
settlement upon unsurveyed land under
the act of May 14, 1880, and the homesteader
dies prior to survey, having complied with
the law to the date of his death, his heirs
are entitled to complete the claim and ac-
quire title; and where they continued to
comply with the law and made application
within three months after survey, their
claim was such as excepted the land from
the proclamation of May 29, 1905...... 219, 224
That part of paragraph 8 of the circular of
December 16, 1908, which provides for the
patenting of forest homestead entries with-
out the necessity of a special survey where
the lands are described as "a quarter or a
half of a surveyed quarter-quarter section

In view of the fact that the proviso in the
proclamation of September 20, 1906, creating
the Lola National Forest, excepting all lands
"covered by any valid prior claim, so long as
the . . . claim exists," fails to require that
the settler shall file his declaration or make
entry within any particular period as a con-
dition to having the tract settled upon ex-
cepted from the operation of the with-
drawal, a settlement claim will except the
land covered thereby so long as the settler
continues to comply with the law in the
matter of residence, cultivation, and im-
provement, notwithstanding he may fail to
make entry within three months after the
filing of the township plat of survey....... 587

Credit for constructive residence during
absence on account of official employment
can not be allowed where actual residence
has never in good faith been established..... 563
One who is qualified to make a homestead
entry under section 2304 of the Revised Stat-
utes, by reason of having served ninety days
in the Army, Navy, or Marine Corps, is enti-
tled to credit under section 2305, in lieu of
residence, to the full period of his service,
provided he has resided upon, cultivated,
and improved his homestead for at least one
year.....

148

After residence has in good faith been es-
tablished upon a homestead claim, absence
due to employment as assistant postmaster
in a fourth-class post-office, under an ap-
pointment made prior to April 1, 1909, will
be regarded as constructive residence, where
it is shown that the business of the office
required the services of an assistant and the
duties incident to such employment were
actually and continuously performed by
the entryman and that his absence from the
claim was due to such employment........ 55