It will be seen that said circular did not invalidate selections made prior to 1879 without a designation of losses, but exacted of the companies that losses must be specified for such selections, and all others theretofore made, before further indemnity selections would be permitted. This is directory, and its enforcement is left to the local officers.
It can not therefore be held that said order required a specification of losses in support of selections made prior to 1879, in order to give validity to the same, and I think to disregard such selections would be purely arbitrary and unauthorized.
In the case of Northern Pacific Railroad Company v. John O. Miller (11 L. D., 428), it was held that "indemnity can only be selected in lieu of some section or part of section lost in place, and the basis for such selection must be specifically designated and shown to be excepted from the grant, before the right of indemnity can be exercised," but in the case of Darling v. Northern Pacific Railroad Company (supra), referring to the Miller case, it was stated: "the selection in that case was not protected by the order of May 28, 1883, for the reason that it had never been withdrawn, and was therefore not of the character of lands contemplated by said order."
In the Miller case the selection was made January 30, 1884, and not being protected by the circular of May 28, 1883, it came under the order of 1879.
In the case of the Southern Minnesota Railway Express Company (12 L. D., 518), it was held that indemnity railroad selection will not be approved, in the absence of due specification of the losses for which the indemnity is asked, and the list submitted was returned that the losses might be specified.
In the present case, the list is not here for approval, and, while I should refuse to approve this selection until a loss is specified, yet, for the reasons before stated, the selection was a bar to Clancy's entry, and the same must be accordingly be canceled, unless, after due notice, he elects to permit the same to stand subject to the approval of the company's selection. In this connection, I might add that the adjustment of this grant, submitted with your letter of July 22, 1890, for approval, shows that there is yet due on account of the grant 895,626.11
The application by Albert M. Simmons for the same land must also be rejected.
Your decision is, with the above modification, affirmed.
A transferee takes no greater interest in
the land than is possessed by the original
entryman
Sale of land included within a coal declar-
atory statement prior to final proof and en-
try defeats the right of the claimant to
purchase the land, and an entry made in
his name must be canceled.
The sale of land after final proof, but
prior to the issuance of final certificate, will
not defeat the right to a patent, where the
record shows due compliance with law..... 366
The sale of land shortly after making
proof and the issuance of final certificate
does not warrant a presumption against the
good faith of the entryman
The issuance of a final certificate on a
purchase of timber land under the act of
June 3, 1878, does not deprive the Depart-
ment of jurisdiction to inquire into the
character of such entry; and a purchaser
of the lands so entered, prior to the issu-
ance of patent, takes the lands subject to
the final action of the Department...
Notice of departmental decision should be
given a mortgagee where the Department
is aware of such interest, and the right of a
mortgagee to be heard in defense of the
entry is not defeated by a judgment of can-
cellation in the absence of such notice..... 48
Amendment
See Entry.
Appeal.
See Practice.
To enter, to be valid, must be made at a
time when the land is free from appropria-
tion, and legally subject to entry
An entry based upon an application and
preliminary affidavit executed while the
land is not subject to disposal is invalid, and
the defect can not be cured in the presence
of an intervening adverse claim..
To enter, presented while the land in
question is involved in the pending applica-
tion of another, should be held to await the
final disposition of the prior application. 148, 592
To enter should not be allowed for land
included within a pre-emption claim under
which notice of intention to submit final
proof has been published.
To enter, made within three months from
settlement, is not required to protect such
settlement as against the intervening entry
of another, if the settler initiates a contest
against said entry, alleging his own priority,
within three months after the land becomes
subject to entry..
A successful timber-culture contestant
who files, at the time of initiating contest
and secures cancellation prior to the repeal
of said law, but fails to exercise his prefer-
ence right until after said repeal, is pro-
tected by the repealing act, where his failure
is due to the fact that he did not receive
notice of the cancellation
To enter filed with a contest prior to the
repeal of the timber-culture law saves the
right of the applicant to perfect his entry
after said repeal if the entry under contest
is finally canceled...
A successful timber-culture contestant
who files, with his contest, has no right that
is protected from the operation of the subse-
quent repeal of the timber-culture law if he
fails to exercise his right within the statu-
tory period....
The repeal of the timber-culture law prior
to the receipt at the local office of defeats
the right of entry. The delay of the appli-
cation in the mails, by reason of a "storm
and washout," does not relieve the applicant
from the effect of the repeal......
Approximation.
See Entry, Railroad Lands.
Arid Lands.
See Reservoir.
Instructions of October 5, 1893, with re-
spect to the insertion of reservation of right
of way privileges in patents and final cer-
tificates issued on original entries made
after the act of October 2, 1888
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An application for writ of, will not be
granted where it is apparent therefrom that
the appeal asked for would be dismissed if
before the Department
298
Cherokee Outlet.
See circular of September 1, 1893, with the
President's proclamation opening lands to
entry.
Circulars.
See Tables of, page XVII.
Coal Land.
A private entry of, may not be allowed to
embrace one tract, taken in the capacity of
an assignee, and another under the individ-
ual right of the purchaser.
An entry embracing land not included in
the declaratory statement, but necessary to
the working of the mine and not in excess
of the legal acreage, may be allowed to stand
where good faith on the part of the entrymen
is manifest.
No vested rights are secured through filing
a declaratory statement; and a sale of the
land thereafter by the claimant, prior to final
proof and entry, defeats his right to pur-
chase said land, and an entry thereof made
in his name must be canceled..
An application by an agent of an associa-
tion to file a coal declaratory statement must
be made in the manner provided by the
departmental regulations, and show what
improvements have been made, and the
qualifications of the persons composing the
association...
Commutation.
See Entry, Oklahoma Lands.
Confirmation.
SECTION 7, ACT OF MARCH 3, 1891.
In applying the confirmatory provisions
of, an intervening entry should not be can-
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An entry that is fraudulent in its incep-
tion, and is transferred prior to March 1,
1888, is not confirmed where at the date of
said transfer the entry is under attack as
shown by the records of the local office.... 277
A transferee, who employs another to pro-
cure title to a tract, does not occupy the
status of a bona fide purchaser, if the agent
secures such title through an entry made in
the interest of the transferee, even though
the transferee had no knowledge of the
fraud
A bona fide purchaser of the land cov-
ered by an entry who subsequently sells a
portion of the land embraced therein, and
then joins in the release to the United States
of all title held under said entry, except as
to one tract, may properly invoke the con-
firmatory provisions of section 7 as to said
tract.
The confirmation of an entry under the
body of section 7 is not defeated by a claim
based on the alleged prior occupancy of the
land by a non-reservation Indian, where at
the date of said entry there was no author-
ity for such occupancy ........
A desert-land entry of double minimum
land allowed at single minimum is con-
firmed under the body of the section, if
otherwise within the terms of the statute.
(See 16 L. D., 407.).......
The confirmatory provisions of the body
of the section extend to an entry made by a
min if such entry is otherwise within the
terms of said section
A deed executed prior to March 1, 1888, in
the name of and purporting to convey the in-
terest and title of one holding a power of at-
torney from another in whose name a sol-
diers' additional entry has been made by
such attorney in fact, is not proof of a sale
of the land that brings the entry within the
confirmatory provisions of section 7; nor
will a deed executed subsequently by the
principal and based on an additional consid-
eration operate to cure the defects in the
former conveyance so as to bring said entry
within the terms of said section..........
A purchaser of the land covered by a sol-
diers' additional entry made under a power
of attorney that is in effect a transfer of the
soldier's right prior to the exercise theeof
is not entitled to confirmation..
The act of March 3, 1893, conferring the
right of purchase upon transferees holding
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A soldier's additional homestead entry
based on an invalid certificate of right is
confirmed under the body of section 7 if
otherwise within the terms of said section.. 168
A soldiers' additional homestead entry
allowed on a certificate of right issued on
account of service in the Missouri Home
Guards is confirmed by the proviso if other-
wise within the terms of said section....... 170
The confirmatory provisions of, extend to
a soldier's additional homestead entry made
on a certificate of right based upon alleged
service in the Missouri Home Guards,
though the records of the War Department
fail to show such service...
The pendency of an application to contest
an entry will not defeat its confirmation
under the proviso where such application
must be rejected on account of prior proceed-
ings by the government, though said pro-
ceedings were begun too late to prevent con-
firmation
An order of the General Land Office made
prior to theexpiration of two years from date
of final certificate, requiring the entry to
approximate one hundred and sixty acres,
defeats confirmation under the proviso,
though the notice of such requirement was
not given until after the expiration of said
two years.....
An entry reinstated for the purpose of ex-
amining into its bona fide character and so
remaining for the period of two years, is not
confirmed by the proviso
Validity of, is not affected by the fact that
the contestant is an alien
The Rules of Practice do not require an
affidavit of, to be executed before the local
officers
One who appears in response to citation
and submits testimony without objection
to the affidavit of, will not be heard to sub-
sequently question its regularity
When irregularly allowed (during suspen-
sion of the entry) on uncorroborated affi-
davit, the uncontradicted testimony thus
submitted by the contestant may be after-
wards taken as corroborating the affidavit
and warrant proceedings when the entry is
relieved from suspension ...
A hearing should not be ordered on an
uncorroborated affidavit in which no spe-
cific charge is made
An affidavit of contest should set forth
a definite charge which, if proven, will war-
rant cancellation of the entry in question.. 177
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