Right of Way-Continued.
RAILROAD-Continued.

Page.

Where the laws of a State or Territory de-
clare that every act done by a foreign cor-
poration within said State or Territory prior
to filing its articles of incorporation therein
as provided by law shall be null and void,
such corporation can acquire no rights with-
in that jurisdiction under the act of March 3,
1875, by the survey of a right of way prior to
the filing of its articles of incorporation in
compliance with such state or territorial
laws.

74

The annual payment of fifteen dollars per
mile of road, required by various acts of Con-
gress granting rights of way to railroad com-
panies through the Indian Territory, is not
in the nature of compensation, nor a prop-
erty tax upon the land involved, but is in
the nature of a franchise tax or charge upon
the business of the corporation constructing
the road; and is in no wise affected by the
departmental regulation fixing November
1, 1908, as the date prior to which railroad
companies might acquire title to the land
occupied by them for rights of way, etc.... 414
After the State of Oklahoma was admitted
into the Union, November 16, 1907, the In-
dians, as tribes or nations, ceased to own
and occupy the lands in the sense in which
that expression is used in the acts of Con-
gress fixing the fifteen-dollar charge, and
thereafter such charge could not lawfully be
exacted. However, the payment for the
year ending June 30, 1908, being payable in
advance, must be paid in full..

CANALS, DITCHES, RESERVOIRS, PIPE
LINES.

Instructions of May 21, 1910, under act of
April 12, 1910, concerning rights of way for
pipe lines in Arkansas..

Upon approval of an application for right
of way for a reservoir site under the act of
March 3, 1891, the jurisdiction of the Inte-
rior Department is lost, and any subsequent
action looking to cancellation or annulment
of the right of way for any reason whatever
must be by direct action for that purpose in
the courts.....

The Land Department is without author-
ity to approve an application for right of
way under said act which conflicts to a ma-
terial extent with a prior approved applica-
tion under which vested rights have been
acquired.......

414

597-

207

207

The five-year period fixed by the act of
March 3, 1891, within which a reservoir un-
der its provisions is required to be con-
structed to prevent forfeiture of the right of
way, can not be extended by means of an
amended application for the reservoir site.. 207
Upon failure to construct within the five-
year period, the land department may not,
in the face of evidence showing that another
is seeking to acquire the land for a legal pur-
pose, waive the requirement of the statute

with respect to forfeiture, but should recom-
mend the institution of proceedings to have
the right declared forfeited.

approved

Upon approval by the Department of an
application for right of way under the act
of March 3, 1891, jurisdiction is lost, and the
Department may not thereafter properly
approve another application which con-
flicts to a material extent with the
application....
Where an application for right of way was
inadvertently approved during the pend-
ency and without consideration of a con-
flicting application under which superior
rights are claimed, the Department may
recommend the institution of suit to cancel
the approval and reacquire jurisdiction for
the purpose of determining to which of the
rival applicants the right of way should I
awarded..

le

207

493

493

Whenever, in his judgment, the granting
of an application for right of way under the
act of March 3, 1891, over a national forest
or reservation, would interfere with the
proper occupancy of the reservation by the
Government, it is within the power of the
Secretary of the Interior to withhold his
approval therefrom..
547

Prior to approval, the inchoate right ac-
quired by an application for right of way
over a national forest under the act of March
3, 1891, is subject to the power of Congress
to deny the right by intervening legislation
affecting the land...............

The filing of an application for right of
way for a reservoir site under the act of
March 3, 1891, following survey and definite
location in the field, confers upon the appli-
cant no such rights as will overcome the
rights of an adverse claimant who com-
menced survey of a conflicting reservoir
site prior to the initiation of any rights by
the applicant and diligently prosecuted the
same to completion...

A right of way under the act of March 3,
1891, may be acquired only by a company
formed for the purpose of irrigation; but a
right of way secured under that act may,
under the act of May 11, 1898, be used for
purposes of a public nature as subsidiary to
the main purpose of irrigation.....

A company organized chiefly for the pur-
pose of generating and distributing power is
not within the purview of the act of March 3,
1891; and where an application by such a
company for right of way under that act
has been approved, for lands now within
a national forest, the company may be
permitted to relinquish all right under such
approval and amend its application to bring
it within the act of February 15, 1901, failing
to do which, action should be taken by the
land department with a view to revocation
of the approval..

548

338

302

302

Where a technical quarter section is as-
signed as a whole to support a selection by
a State of another technical quarter section,
the base so assigned can only be treated as
an entirety, and if defective in part must be
considered defective in toto; and it can not
be assumed that the State intended to as-
sign the several 40-acre subdivisions of the
base land to support the corresponding 40-
acre subdivisions of the selected land...... 355
Counsel for the State of California have no
authority to designate bases to support
school indemnity selections, such power
resting solely in the officer of the State au-
thorized to make selections in its behalf.... 355
The swamp-land grant of September 28,
1850, did not supersede the school-land
grant made to the State of Florida by the
act of March 3, 1845, and the State is not
entitled to indemnity for school sections
within the Everglades, on the ground that
they were lost to the school grant by reason
of the swamp grant, such sections passing
to the State under the school grant......

The grant of sections 16 and 36 made to
the State of Montana by the act of February
22, 1889, for school purposes, is a grant in
præsenti, but the right of the State there-
under does not attach to any particular
tract of land until identified by survey; and
where prior to such identification any sec-
tion 16 or 36 is embraced in a national forest
the right of the State to that specific tract
does not attach so long as the reservation
continues, but the State is entitled to select
indemnity therefor......

Scrip.

Gerard and McKee scrip may be located
only upon surveyed land..

350

247

485

In adjusting a Valentine-scrip location of
unsurveyed lands to the "general system
of United States land surveys," as required
by the act of April 5, 1872, the location must
be conformed to the actual lines of legal sub-
divisions as established by survey......... 371
Double minimum lands are subject to
location with Valentine scrip only upon
payment of the difference between the sin-
gle and double minimum price........... 371

Page.

Selections.
Circular of November 3, 1909, relating to
selections, etc., covering unsurveyed lands.. 287
Regulations of May 24, 1910, governing
selection of lands by States and Territories
under grants for educational and other pur-
poses.

The requirement in the circular of Novem-
ber 3, 1909, that in making selections of un-
surveyed lands they shall be described by
metes and bounds, with courses, distances,
and reference to monuments by which the
location thereof on the ground can be read-
ily and accurately ascertained, will not be
given retroactive effect; and selections
made prior thereto will not be held defect-
ive as to description where the tracts select-
ed are designated, in accordance with the
practice then prevailing, as "lands which
when surveyed will be described as fol-
lows," setting forth an approximate descrip-
tion of the tracts by section, township, and
range..

Settlement.

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 acquire
title.

Where one claiming to be a prior settler
institutes proceedings against an entry
made subsequent to his alleged settlement,
he must reside upon the land during the pen-
dency of the controversy; and should he fail
to do so, the entryman, if he in the meantime
continues residence thereon, will have the
superior right.....

611

491

219

275

One who in violation of instructions passes
over a portion of lands to be opened to set-
tlement and entry prior to the hour fixed
for the opening, in order to take a position
upon a tract held in private ownership
within the area to be opened, with a view to
thereby acquire a point of vantage from
which to make settlement, and makes settle-
ment therefrom immediately after the hour
of opening, does not thereby acquire any
right as against another who was standing
in line at the local office and made entry for
the same tract shortly after the hour of
opening....
571

Where a settlement claim antedating a se-
lection by the State of Washington under
the act of March 3, 1893, and held in depart-
mental decision of September 20, 1907 (36
L. D., 89), to be superior to the claim of the
State, was subsequently relinquished while
the State's claim under its selection was
still subsisting and pending before the Land
Department, the right of the State under its
selection immediately attached. (See id.
518).

The purpose of the proviso to the act of
1893 was to protect bona fide settlers, and it
was not intended to provide a means
whereby a settlement claim might be pre-
sented merely to defeat the right of the State
to select, and afterwards relinquished and
entry for the same land made under the tim-
ber and stone law. (See id. 518)..

The State by failing to file motion for re-
view within the time allowed therefor hav-
ing acquiesced in the action of the depart-
ment rejecting its proffered school indem-
nity selection for conflict with a homestead
entry allowed upon settlement prior to
survey, and the preference right period ac-
corded by the act of March 3, 1893, within
which to make such selections having ex-
pired, it has thereafter no such claim or right
by reason of its attempted selection as will
prevent other appropriation of the land upon
relinquishment of the conflicting homestead
entry..

Where a State within the preference right
period accorded by the act of March 3, 1893,
proffers a selection, which is rejected be-
cause the land is embraced within a home-
stead entry allowed upon a settlement prior
to survey, and the State, within the time
allowed for appeal but after the expiration
of the preference right period, takes an ap-
peal from the rejection of its application
and files an affidavit attacking the validity
of the settlement claim, the right of the
State to proceed under its contest is su-
perior to the right of an individual under a
contest initiated against the entry within
the preference right period and prior to the
filing of the selection by the State.......

Survey.

Circular of June 1, 1909, relative to restora-
tion of lost or obliterated corners...

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..

Swamp Land.

Under the rule of evidence adopted for
the adjustment of the swamp grant to the
State of Minnesota the field notes of survey

165

165

518

298

1

219

Timber and Stone Act.

The presence of improvements on a tract
of land will not exclude it from appropria-
tion under the timber and stone act, if not
made and maintained under a bona fide oc-
cupation of the land.

Timber Cutting.

The act of June 3, 1878, authorizing the
cutting of timber on public mineral lands,
is confined to the States and Territories ex-
pressly enumerated therein...

Townsite.

284

335

75

General circular of August 7, 1909, con-
cerning townsites, parks, and cemeteries.. 92

Warrant.

Any attempted transfer of title to a mili-
tary bounty land warrant, by gift or other-
wise, prior to its location, not in compliance
with the act of March 22, 1852, requiring as-
signments of such warrants to be in writing,
will not deprive the widow or heirs of the
warrantee of the interest and right to such
warrant secured to them by statute......

Decrees of courts adjudging the title to
military bounty land warrants will be ac-
cepted as evidence of ownership where the
court had jurisdiction of the subject-matter
and the parties, and should, as a general
rule, be required in the absence of a written
assignment from the warrantee; but the
requirement is not absolute, and the valid-
ity of an assignment may be established by
such proofs as will create reasonable pre-
sumption of ownership in the last holder of
the warrant...

Withdrawal.

Where lands which have been withdrawn
from all disposition are restored to entry,
no application will be received or any rights
recognized as initiated by the tender of an
application for any such lands until the
order of restoration is received at the local
office.

501

487

146