Page images
PDF
EPUB

the Secretary, opportunity will be afforded at the discretion of the Department, but only at a time specified by the Secretary or fixed by stipulation of the parties, with the consent of the Secretary, and in the absence of such stipulation or written notice to opposing counsel, with like consent, specifying the time when argument will be heard.

RULE 111.—The examination of cases on appeal to the Commissioner or Secretary will be facilitated by filing in printed form such arguments as it is desired to have considered.

5. Decisions.

RULE 112.--Decisions of the Commissioner not appealed from within the period prescribed become final, and the case will be regularly closed. RULE 113.-The decision of the Secretary, so far as respects the action of the Executive, is final.

RULE 114.-Motions for review and motions for rehearing before the Secretary must be filed with the Commissioner of the General Land Office within thirty days after notice of the decision complained of, and will act as a supersedeas of the decision until otherwise directed by the Secretary.

Such motion must state concisely and specifically the grounds upon which it is based, and may be accompanied by an argument in support thereof.

On receipt of such motion, the Commissioner of the General Land Office will forward the same immediately to this Department, where it will be treated as "special." If the motion does not show proper grounds for review or rehearing, it will be denied and sent to the files of the General Land Office, whereupon the Commissioner will remove the suspension and proceed to execute the judgment before rendered. But if, upon examination, proper grounds are shown, the motion will be entertained and the moving party notified, whereupon he will be allowed thirty days within which to serve the same, together with all argument in support thereof, on the opposite party, who will be allowed thirty days thereafter in which to file and serve an answer, after which no further argument will be received. Thereafter the case will not be reopened except under such circumstances as would induce a court of equity to grant relief against a judgment of a court of law.

[blocks in formation]

The survey of a tract of land in, with a
view to the purchase thereof, must be re-
jected where the alleged trade or business
to be transacted thereon is entirely pros-
pective and no improvements have been
placed on said land..

The evident intendment of section 12, act
of March 3, 1891, is that claimants must be
in possession and occupying the tracts
sought to be entered for the purpose of trade
or manufactures, at the date of application
to have the survey made, with such trade or
manufactures in actual operation

The land taken under section 12, act of
March 3, 1891, must be nearly as practicable
in a square form

The requirement that such land shall be
taken in "square form" means that the tract
claimed should be surveyed in the form of
a rectangular equilateral parallelogram, as
nearly as the configuration of the land will
permit

1814-VOL 23-39

Page.

In a survey under the act of March 3, 1891,
the claim must be as nearly practicable in a
square form, and not include land to which
the natives have prior rights by virtue of
actual occupation.......

A survey that does not follow the require
ment as to square form, will not be approved
on the ground that the irregularity in form
is necessary in order to exclude swamp land,
as there is no statutory provision excepting
such lands from purchase...

335

337

The government is not bound by an erro-
neous approval of field notes and plat of
survey, under section 13, act of March 3, 1891,
to issue patent contrary to the provisions
of said act requiring land to be taken as
nearly as practicable in a square form........ 442
Alienation.

A transferee whose title is acquired after
cancellation of an entry is charged with
notice of such action..

28

7

The sale of part of the land settled upon
and claimed by a homesteader disqualifies
him as an applicant...

87

283

245

280

280

283

Amendment.

See Entry; Practice.

Appeal.

See Practice.

Application.

To enter, filed for lands restored to entry
under a decision of the Supreme Court, prior
to the time fixed therefor by the Depart-
ment, should not be allowed....

407

Pending for land covered by a private
claim should not be disposed of without
opportunity for the assertion of rights there-
under in the event of the disallowance of
such claim
185

For reinstatement of private cash entries
under the act of April 7, 1896, should not be
rejected on account of adverse claims, with-
out due notice, and opportunity to be heard
as against said claims

To enter properly rejected by final deci-
sion of the Department, under the rulings
then in force, can not be reinstated with a
view to favorable action under a changed
construction of the law. The applicant in
such case may make a new application if he
is qualified, and no intervening rights have
attached..

609

582

452

[blocks in formation]

Page.
opening and improving of a coal mine on
public land that is in the actual possession
of the applicant..

It is not necessary to show that coal has
been developed on all parts of a forty-acre
tract; if coal has been discovered thereon,
the applicant is entitled to the whole of such
legal subdivision..

An entry made by an association under
the proviso to section 2348, R. S., may em-
brace by legal subdivisions six hundred and
forty acres, including the legal subdivisions
on which the mining improvements are ac-
tually situated, whether the land covered
by said improvements is coal or agricultural
land..

Under an entry made by an association
the land must appear to be mineral in char-
acter as a present fact and from actual pro-
duction of coal, but the development of
coal on each forty-acre subdivision is not
requisite..

On the failure of a coal claimant to per-
fect title within the statutory period, the
work done by him inures to the benefit of a
valid adverse claim then asserted for the
land involved

Confirmation.

ACT OF MARCH 3, 1891.

An entry canceled without notice to the
entryman at the passage of said act is in
law an existing entry and confirmed by sec-
tion 7 if otherwise within the provisions of
said act

An order of cancellation without notice to
a record transferee is irregular, but not void;
and an entry thus canceled prior to the pas.
sage of said act is not confirmed by section
7 thereof, as the provisions of said section are
only applicable to entries subsisting at the
passage of the act.....

The confirmation of an entry under sec-
tion 7 for the benefit of a transferee is not
contemplated by said statute in case of a
transfer prior to the issuance of final cer-
tificate

110

116

127

127

243

162

175

333

[blocks in formation]
[blocks in formation]

An entryman is entitled to be heard on an
issue raised as to the qualifications of an
adverse claimant, though such issue may
have been tried and determined as between
said claimant and a third party in a prior
proceeding..

Where a second, is filed on grounds set
forth in the first, with an additional allega-
tion as to the disqualification of the first
contestant as an entryman, and the entry
under attack is canceled as the result of the
first suit, and the contestant therein makes
entry under his preferred right, it is not
competent for the local office to order a hear-
ing on the second, as against the entry then
of record..

The failure of the local office to dismiss a,
for default on the part of the contestant
will not operate to prevent the filing of a
second, and the issuance of notice thereon,
nor interfere with any rights attaching
thereunder...............

A second, may be properly entertained on
a charge that the entryman has failed to
comply with the law since the hearing in the
former suit...

Filed during the pendency of a prior suit
must fail if before service of notice there-
under the entryman without knowledge of
such contest has cured his default, and it is
neither alleged nor proven that the prior
suit was collusive...

485

479

522

234

317

558

One who assists another to procure an en-
try by furnishing the money for the requi-
site fees, will not be permitted to attack the
good faith of said entry in his own interest.. 186
The failure of an intervening entryman
to specify any reason, on due opportunity
given, why his entry should not be canceled
and the preferred right of a successful con-
testant recognized, warrants the cancella-
tion of his entry and precludes such entry-
man from thereafter attacking the entry of
the successful contestant on a charge that
should have been set up under the rule to
show cause........

After a hearing has been directed by the
Department on the charge set forth in an
affidavit of, the subsequent retraction of the
statements in the corroboratory affidavit
does not warrant the General Land Office in
revoking the order for the hearing issued
under departmental direction.

522

285

Page.

The charge that a, was begun under a
speculative contract with a third party, if
proven, will not affect the subsequent entry
of the tract involved, after its restoration
to the public domain, by the widow of the
contestant in her own right, the contestant
having died prior to the conclusion of the
suit

Rights of adverse entrymen, dependent
upon priority of settlement, may be adjudi-
cated in the absence of a formal contest as
between them on evidence submitted by
them in defense of their rights against a
third party.

On alleged priority of settlement being
withdrawn on a disclaimer of interest on
the part of the adverse entryman, and his
application to amend his entry so as to em.
brace different land, should be reinstated,
with all rights incident thereto, on the with-
drawal of the entryman's application for
amendment

The receiver, acting alone, has no author-
ity to dismiss a..................
HOMESTEAD.

256

400

341

548

On the ground of priority of settlement,
must fail if the allegation is not established
by some preponderance of the evidence.... 50
In a, against an entry on the ground of a
prior settlement right, the burden of proof
is upon the contestant to show that his set.
tlement antedates both the entry and settle-
ment of the contestee, and if he fails to show
such priority the entry must stand.

In a, involving priority of settlement,
doubt as to the fact of priority, or a finding
of simultaneous settlement, does not justify
an arbitrary division of the land between
the parties, or an award thereof to the high-
est bidder............

201

......... 201, 400
Against a soldier's homestead declaratory
statement is invalid, and a subsequent
amendment thereof does not confer any
priority as against an intervening contest
begun after the homesteader has made entry
under his declaratory statement..

In a, against the entry of a deceased
homesteader the heirs should be made party
thereto, but, if they are not so included in
such proceeding, and the Commissioner
thereafter remands the case with leave to
amend, such right of amendment, so allowed,
is not defeated by a subsequent intervening
contest..

Contestant.

See Protestant.

2

[ocr errors]

An intervening entry will not defeat the
preferred right of a successful, who fails to
receive notice of cancellation, if such failure
is not due to want of diligence on his part. 259
One who files an affidavit of contest pend-
ing the disposition of a prior suit against
the same entry is not entitled to notice of
cancellation if the entry is canceled under
the prior proceedings..
..... 378

« PreviousContinue »