Page.

Page.

perfected homestead entry, marries a
man having a similar entry, and
thereupon abandons her claim and
resides with her husband upon his
claim until he offers final proof
thereon, and they then establish
residence upon her claim, long prior
to the initiation of a contest against
the same, she thereby cures her de-
fault in the matter of residence and
is entitled to perfect her entry

Under sections 2304 and 2305 of
the Revised Statutes, as amended by
the act of March 1, 1901, the mili-
tary service of a soldier who makes
homestead entry may be accepted in
lieu of an equal period of residence
upon the land embraced in his entry
only in case the soldier shall have
served for ninety days in the army
of the United States during the war
of the rebellion, the war with Spain,
or during the suppression of the
insurrection in the Philippines

Right of Way.

Regulations of March 1, 1905,
under section 4 of the act of Feb-
ruary 1, 1905, relative to rights of
way within forest reserves for dams,
reservoirs, water plants, ditches,
flumes, pipes, tunnels, and canals

The respective jurisdictions of the
Department of the Interior and the
Department of Agriculture over ap-
plications for rights and privileges
within forest reserves defined

No rights can be initiated by any
railroad company under the pro-
visions of section 1 of the act of
March 3, 1875, granting rights of
way through the public lands, prior
to the organization of such company
under the laws of a State or Terri-
tory

A railroad company having adopted
one line along the route provided for
by its charter, and having filed a
plat thereof with the Secretary of
the Interior for approval under the
act of March 3, 1875, may there-
after adopt another route and secure
rights by constructing upon the
changed location.

The grant of a right of way to the
Missouri, Kansas and Texas Railway
Company made by the act of July 26,
1866, is subject not only to the con-
ditions expressed in the grant, but to
the

necessarily implied condition
that it be used for the purpose of
maintaining a railroad; and the
grantee has no authority under the
grant to lease any portion of its
right of way for the purpose of
sinking wells thereon for extract-

335

277

451

609

617

617

ing, piping and removing oil and
natural gas therefrom____

The grant of a right of way
through the public lands and reser-
vations of the United States for
irrigation purposes, made by section
18 of the act of March 3, 1891, ex-
tends to Indian reservations, as res-
ervations of the United States, sub-
ject to the condition that the loca-
tion and construction of the ditch
or canal shall not interfere with the
proper occupation of the reservation
by the government for Indian pur-
poses

470

563

Where application is made for
right of way for a reservoir under the
provisions of sections 18 to 21 of the
act of March 3, 1891, and it appears
that the beneficiaries under a prior,
similar, approved right of way em-
bracing the same land have failed to
comply with the requirements of the
law, the Department of the Interior,
upon proper application and the exe-
cution of a good and sufficient bond
to indemnify the United States
against liability for costs, will re-
quest the Department of Justice to
permit the use of the name of the
United States in a suit by the pres-
ent applicant to have the approved
right of way declared forfeited----- 469
For the purpose of carrying out
the provisions of the act of June 17,
1902, the government may avail
itself of the privileges conferred by
the act of March 3, 1891, granting
the right of way through the public
lands and reservations of the United
States for canals, ditches and reser-
voirs for irrigation purposes, to the
same extent that individuals, corpora-
tions, or associations of individuals.
may exercise such privileges, and
subject to the same conditions and
limitations.

The use of rights of way over pub-
lic lands within reservations of the
United States for the purposes con-
templated by either the act of Feb-
ruary 15, 1901, or the act of June
17, 1902, will not be permitted if
such use is incompatible with the
public interest; and if at any time
the public interest is jeopardized by
the use of such rights of way after
they have been granted, they may be
revoked by the Secretary of the In-
terior

School Land.
GENERALLY.

Circular of June 21, 1905, relative
to notice to the State of the allow-

563

389

ance of entries in school sections,
based upon settlement prior to sur-
vey.

The grant of sections two, sixteen,
thirty-two, and thirty-six in every
township, made to the future State
of Utah by section 6 of the act of
July 16, 1894, for the support of
common schools, did not become ef-
fective until the admission of the
State into the Union.

A mineral location, made prior to
the admission of the State of Utah
into the Union, was not of itself suf-
ficient to establish the mineral char-
acter of the land located so as to
defeat the grant to the State for
school purposes made by section 6 of
the act of July 16, 1894; but where
the State was specially notified of
the pendency of an application for
patent under such location, and
made no objection by way of pro-
test or otherwise to the allowance of
the mineral entry, it is bound by the
record made upon such application,
and a hearing for the purpose of de-
termining the character of the land
is unnecessary

By reason of the legislation affect-
ing the unallotted lands in the
Uintah Indian reservation, which
amounts to an appropriation thereof,
no claim on the part of the State
(Utah) to any portion thereof will
be recognized, either under its grant
of specific sections in place in sup-
port of common schools, or under
the provisions of the act of March
2, 1895

Under its grant of school lands
made by the act of February 22,
1889, the State of Montana is en-
titled to sections sixteen and thirty-
six within the boundaries of the
former reservation of the Gros Ven-
tres and other tribes of Indians,
where such lands have not been ap-
propriated by a bona fide settler
prior to their indentification by sur-
vey

Lands in section sixteen or thirty-
six in the State of Washington
which at the date of survey were
in the possession and occupation of
an Indian living apart from his
tribe, and improved by him, and for
which application for allotment has
been made by the Indian occupant
under the provisions of section four
of the act of February 8, 1887, are
"otherwise disposed of by or under
the authority of an act of Congress,"
within the meaning of that term as
employed in section ten of the act of
February 22, 1889, making a grant

638

223

37

610

181

to the State of sections sixteen and
thirty-six in each township in sup-
port of common schools, and are
therefore excepted from the grant__ 454
INDEMNITY.

An individual claim embracing a
portion of a school section in place
should be treated as an entirety, and
where the State elects to reimburse
itself for land included in such claim
by selecting indemnity for a portion
thereof, it thereby abandons or
waives claim to the entire tract in-
cluded in the entry---

Under the provisions of the act of
February 28, 1891, amending section
2275 of the Revised Statutes, the
State (California) may. if it So
elects, waive its right to portions of
sections sixteen and thirty-six in
place, and select other lands in lieu
thereof, upon proof showing the
present character of the lands to be
mineral, without regard to their
known mineral character at the date
of their identification by the lines of
the public survey.

By the action of the Department
in its decision of February 13, 1904,
permitting certain indemnity school
land selections filed by the State
(California), previously accepted
and placed on record, and based
upon lands alleged to be lost to the
State because included within a tem-
porary withdrawal with a view to
their examination preliminary to the
creation of a forest reserve, to stand,
pending final determination of the
boundaries of the proposed reserve,
which would fix the status and de-
termine the question of availability
of the base lands, it was not the in-
tention to include mere applications
previously presented by the State,
but which had not been formally
accepted_

675

356

483

Where the State (Washington)
leases a tract as school indemnity
land, and it is subsequently discov-
ered that it has never made selec-
tion thereof, and a homestead entry
is thereupon made therefor by one
having full knowledge of the actual
possession and occupancy of the
State's lessee, such entry will be
canceled and the State given oppor-
tunity to select the land, on a proper
assignment of base therefor, where
necessary for the protection of its
lessee; and in the event of the fail-
ure of the State to make such selec-
tion, the lessee, if he be qualified,
will be permitted to make entry of
the land
339

Scrip.

Sioux half-breed scrip is not as-
signable, and a power of attorney to
locate the same can not be made ir-
revocable, nor create any interest in
the attorney, but is subject to revo-
cation at any time prior to location
of the scrip thereunder

The granting of applications for
the return of scrip rests in the
sound discretion of the head of the
land department, and is controlled
substantially by the same principle
that governs in applications for the
return of purchase money covered
into the Treasury---

An entryman will not be permitted
to relinquish his entry or to allow
it to be canceled and withdraw his
scrip where the entry can be con-
firmed and where the only obstacle
to confirmation is the arbitrary re-
fusal of the entryman to supply the
necessary proof_____.

Land warrants (Valentine scrip)
are not commercial or negotiable
paper, and the doctrine applying to
innocent holders of commercial paper
acquired before maturity has no ap-
plication thereto; and an assignee
of such warrants can acquire no
greater interest as against the gov-
ernment than belonged to the war-
rantee

Surveyor general's scrip issued
under the act of June 2, 1858, can
be located only on lands subject to
private entry "at a price not ex-
ceeding one dollar and twenty-five
cents per acre

Selection.

See Railroad Grant; Reservation;
School Land; States and Territories;
Swamp Land.

Settlement.

Under section 3 of the act of May
14, 1880, the rights of a homesteader
who settles upon land prior to mak-
ing entry thereof relate back to the
date of settlement..

As between one who has a subsist-
ing settlement upon a tract of land
embraced in an invalid Indian allot-
ment at the date of the cancellation
of the allotment, and one who imme-
diately upon such cancellation files
application to make homestead entry
of the land, without having made
settlement thereon, the right of the
settler is superior to that of the ap-
plicant

Rights acquired by settlement and
improvement upon unsurveyed land,

and duly and timely asserted upon
the filing of the plat of survey, will,
as against an intervening indemnity
railroad selection made under the
act of August 5, 1892, or a lien se-
lection under the provisions of the
act of June 4, 1897, made long prior
to the filing of the township plat of
survey and with full knowledge of
the settlement claim, be protected in
its entirety, even though the lands
claimed may be in different sections
and the improvements of the settler
be confined to the lands in one sec-
tion

States and Territories.

See School Land; Swamp Land.
Instructions of February 1, 1905,
restoring to entry certain lands in
Nebraska withdrawn under section
1, act of April 28, 1904‒‒‒‒‒

Where a land grant to a State or
Territory does not convey the fee
simple title to the lands granted, or
require patents to be issued therefor,
the title thereto does not pass until
the approved list of selections of
such lands has been certified to the
State by the Commissioner of the
General Land Office_‒‒‒

Where, after application by the
State of Utah for the survey of
lands under the provisions of the act
of August 18, 1894, but prior to the
filing of the plat of survey, a tem-
porary withdrawal embracing the
land was made with a view to the
establishment of a forest reserve,
and the State was thereafter, within
due time after the filing of the plat
of survey, permitted to make selec-
tions of the lands, subject to final
determination of the boundaries of
the proposed reserve, such selection,
being still of record on May 29, 1903,
the date of the proclamation creat-
ing the Logan forest reserve, em-
bracing the land in question, is a
"lawful filing" within the meaning
of that term as used in the excepting
clause of the proclamation, and the
approval of the selection and cer-
tification of the lands to the State
subsequent to the creation of the
reserve was proper.

Statutes.

See Acts of Congress and Revised
Statutes cited and construed, pages
XXVI and XXIX.

Survey.

Claims upon unsurveyed lands
and bordering on bodies of water,

513

386

13

283

The land department has no au-
thority to meander an artificial lake
which was not established until sub-
sequently to the approval of the sur-
vey of the township and after a
large part of the lands therein had
been disposed of by the government
according to the official plat------- 50,
After the lands in a township have
been surveyed and plat thereof re-
ceived in the district land office,
they are not considered as open to
entry, selection, or other form of
disposal, until notice, fixing the
date of official filing of the plat, has
first been given, as prescribed by
departmental regulations

Swamp Land.

Swamp and overflowed lands with-
in the Fort Sabine military reserva-
tion, in the State of Louisiana, at
the dates of the swamp land grants
of March 2, 1849, and September 28,
1850, did not pass to the State by
virtue of said grants---

Lands which have been finally ad-
judged by the land department to be
of the character granted to the State
by the act of March 12, 1860, and
to have passed to the State under
said grant, are not thereafter sub-
ject to other disposition---

Where it is not clearly shown by
the field notes of survey that a tract
of land was at the date of survey
swamp land, and the State has never
made formal claim to such tract
under the swamp land grant, al-
though lists of lands selected as
swamp and overflowed within the
township where the tract is located
were filed many years ago, and it is
shown by the testimony adduced at
a hearing had on a contest involv-
ing the character of the land that
such tract is not swamp land, the
markings upon the plat of survey
showing the extension of a swamp
within the section, not based upon

643

13

101

Page.

an actual survey, but upon a casual
observation of the land and deduc-
tion from the conditions shown
along the the survey line, will not
be deemed sufficient to establish the
character of the land as swamp and
overflowed within the meaning of
the act of September 28, 1850_____
In order to bring a case within
the exception named in paragraph
one of the departmental regulations
of March 16, 1903, providing for the
adjustment of the swamp land grant
in the State of Minnesota, it is nec-
essary to show that it involves an
actual bona fide settlement claim,
which can not be done without proof
of residence actually begun upon the
land

Where the field notes of survey
are the basis of adjustment of the
swamp land grant to a State, and
the intersections of the lines of
swamp or overflow with those of the
public surveys alone are given, those
intersections may be connected by
straight lines; and all legal subdi-
visions, the greater part of which
are shown by these lines to be within
the swamp or overflow, will be certi-
fied to the State; the balance will
remain the property of the govern-
ment--- -

Where only one line is intersected
by swamp, or for any other reason
the above rule can not be applied in
the adjustment, the plats of survey
may be used to supplement the field
notes, but they are referred to only
in such cases, and in no case can
they be considered as overcoming or
controlling the field notes of survey-
Where swamp is disclosed only
upon one of the surveyed lines of a
section, thus rendering the applica-
tion of the rule of adjustment laid
down in First Lester, page 543, im-
possible, the State's claim under its
swamp land grant should be ad-
judged by the portions of the sur-
veyed line shown to be swamp and
dry if the greater part be swamp
the tract will pass to the State, and
if the greater part be dry it will re-
main the property of the govern-

ment__

The rule announced in depart-
mental decision of March 20, 1905,
in the case of Wallace r. State of
Minnesota (33 L. D., 475), relative
to the adjustment of swamp land
grants where swamp is disclosed
only on one of the surveyed lines of
a section, vacated, without prejudice
to the right of the State to make
further showing with respect to the

Page.

matter, if it so desires, and instruc-
tions given that, for the present, the
rule laid down in First Lester, page
543, alone be followed_

Until patent issues for lands
claimed by the several States under
the swamp land grant of September
28, 1850, the United States has not
been divested of the legal title, and
until that time the land department
has full jurisdiction over such lands,
regardless of the fact that lists regu-
larly submitted, and duly approved,
have been transmitted to the proper
officer of the State-----

Where a land grant to a State or
Territory does not convey the fee
simple title to the lands granted, or
require patents to be issued there-
for, the title thereto does not pass
until the approved list of selections
of such lands has been certified to
the State by the Commisioner of the
General Land Office..

Timber and Stone Act.

Circular of July 1, 1904, relative
to suspension of applications to pur-
chase lands in Yakima Indian res-
ervation under act of June 3, 1878__

Lands embraced in a railroad in-
demnity selection are not subject to
entry or purchase under the timber
and stone act, and no right or claim
can be initiated to such lands by an
application to enter or purchase the

same

Lands covered by a growth of
trees whose existence and mainte-
nance operate to preserve the waters
of a stream for irrigation purposes,
but which are of no commercial
value when severed from the soil, are
not subject to disposal under the act
of June 3, 1878, as lands "chiefly
valuable for timber

An appeal from the action of the
local officers rejecting an applica-
tion to purchase under the timber
and stone act entitles the applicant
only to a judgment as to the correct-
ness of such action at the time it
was taken_.

The purchase money under the act
of June 3, 1878, must be placed in
the hands of the receiver at the time
of the submission of final proof, and
when so paid is in contemplation of
law public money, subject to for-
feiture under the provisions of sec-
tion two of said act___

Timber and stone entries under
the act of June 3, 1878, are within
the intent and operation of the con-
firmatory provisions of the act of

616

13

13

83

426

34

426

566

March 3, 1891

The general departmental order of
November 18, 1902, suspending ac-
tion in all timber and stone entries
in the States of California, Oregon
and Washington, pending investiga-
tion, is not a contest or protest
within the meaning of section 7 of
the act of March 3, 1891, and does
not bar the operation of the confirm-
atory provisions of said section_____

An application to make homestead
entry of land embraced in a prior
application to purchase under the
act of June 3, 1878, does not consti-
tute a protest against the timber
land application, and is not a suffi-
cient ground for requiring a hearing
to determine the character of the
land

No such right is acquired by a pur-
chase of land under the timber and
stone act made in violation of an
order suspending such lands from
entry as entitles the purchaser to be
heard upon the question as to the
validity of a prior railroad selection,
or other claim asserted to the land,
before carrying into effect an order
for the cancellation of the purchase
thus erroneously allowed__.

Under the provisions of section 3
of the act of June 3, 1878, the regis-
ter is required to furnish a timber
and stone applicant a copy of the
final proof notice, which notice the
applicant shall cause to be pub-
lished as prescribed by the act; and
where an applicant acquires no
knowledge that such notice has been
issued until after the date set for
the submission of proof, he is not in
default merely because he fails to
submit proof on such date____

Page.

10

An application to purchase land
under the act of June 3, 1878, ex-
cepts such land from other disposi-
tion until the date first advertised
for the submission of proof, and, in
cases where the applicant is pre-
vented by accident or unavoidable
delay from submitting proof on such
date, ten days additional, but no
longer; and upon the expiration of
the final proof period, if the appli-
cant is then in default in the mat-
ter of proof, a previous with-
drawal of the land for forestry pur-
poses immediately attaches thereto,
and all rights under the application
to purchase cease and determine 285
Lands embraced within applica-
tions to purchase under the act of
June 3, 1878, at the date of the
order of July 31, 1903, temporarily
withdrawing certain lands for for-