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