Page.
and the defect in the company's title as
ultimately determined by the supreme
court was in no respect affected by the pres-
ence or absence of settlers or settlement
claims..

The right of purchase accorded by section
5 of the act of March 3, 1887, is not lost by a
surrender to the railroad company of the
contract of purchase, for the purpose of
securing a return of the purchase money,
where there was in fact no assignment, and
no intention to make an assignment, to the
company, of the purchaser's interest in the
land, and where he continues to assert his
claim thereto..

The allowance of a graduation cash entry,
and the acceptance and subsequent reten-
tion by the Government of the purchase
money paid thereon, constitute a sale of the
land within the meaning of section 8 of the
forfeiture act of September 29, 1890, the pro-
visions of which not only expressly recog-
nized the validty of such sale, but operated
to confirm the title of the claimants there-
under.

The period within which the right to pur-
chase railroad lands forfeited by the act of
September 29, 1890, could be exercised under
the third section of said act, as extended by
the act of December 12, 1893, expired Janu-
ary 1, 1897, and by failure to exercise the
right of purchase within that period, rights
under a homestead entry of record at that
date attached absolutely as against such
right of purchase; and nothing in the act
of February 18, 1897, reviving and extending
the right of purchase accorded by said sec-
tion, can be so construed as to in any wise
interfere with any adverse claim which may
have attached prior thereto.

If in the adjustment of a railroad grant it
appears that homestead or pre-emption
claims have been erroneously canceled for
conflict with the grant, the claimants should
be notified and given opportunity to make
application for reinstatement under the
third section of the act of March 3, 1887, and
to submit a showing in support thereof;
and the title of any purchaser through the
railroad company to any of the land em-
braced in such homestead or pre-emption
claim will not be declared confirmed by
the act of March 2, 1896, until after due op-
portunity to the claimant to make such ap-
plication and showing....

283

388

410

641

Page.

and the Department will not interfere in
such matter where no abuse of such discre-
tion is shown.......

Rehearing.

See Practice.

Relinquishment.

A relinquishment of a homestead entry
executed by one claiming the status of sole
heir of the deceased entryman will not be
accepted where it appears that said heir is
a minor and that under the law of his
domicile he is not competent to execute
such an instrument

Repayment.

415

37

Circular instructions of January 22, 1901.. 430
Where the Secretary of the Interior, in
the exercise of discretionary authority
vested in him by act of Congress, fixes the
price of lands at $2.50 per acre, regardless of
their location with reference to a railroad
land grant, repayment of the alleged
double minimum excess paid by the pur-
chaser is not authorized..

A homestead entry, made for land cov-
ered by a pre-emption declaratory state-
ment, and subsequently canceled on the
allowance of the pre-emption entry, is "can-
celed for conflict" within the meaning of
the repayment act of June 16, 1880.......

Excepting instances of cancellation for
conflict, the criterion by which to deter-
mine whether repayment is authorized by
section two, act of June 16, 1880, is not,
What was the reason for the cancellation
of the entry? but, Was the entry erroneously
allowed and not susceptible of confirma-
tion?.

Where an entry is erroneously allowed,
but before its cancellation the land is mort-
gaged, and the mortgagee receives a deed
therefor under foreclosure proceedings
initiated subsequent to such cancellation,
he is an assignee within the meaning of
the act of June 16, 1880, and as such entitled
to repayment.......

297

255

362

136

Where an entry was erroneously allowed,
and could not have been confirmed, the
reason which led the entryman to relin-
quish his entry is of no moment and can
not affect the right of repayment given to
him by the express terms of the statute.... 355
If the greater portion of a legal subdivi-
sion included in a desert-land entry, made
prior to survey, is found, upon survey, to
be within an alternate odd-numbered sec-
tion which had passed to a railroad com-
pany under its grant before the entry was
allowed, and had therefore ceased to be
erroneously
public land, said entry was
allowed and can not be confirmed," and
the entryman is entitled to repayment..... 362
Repayment of the first installment of the
purchase money paid on a desert-land
entry will be allowed where the entry did

44

not conform to the statutory requirement
in the matter of compactness and was for
that reason erroneously allowed and could
not have been confirmed...

The right of assignees to repayment under
section 2, act of June 16, 1880, is restricted
to assignees of the land, and does not
extend to a purchaser of a mere claim for
the money paid on the entry..

One who takes an assignment of the
interest of a cash entryman subsequent to
the cancellation of the entry acquires no
right to repayment of the purchase money
under either section 2362 of the Revised
Statutes or section 2 of the act of June 16,
1880........

Reservation.

See Mining Claim; Right of Way; School
Land.

GENERALLY.

A question as to the reservation and ap-
propriation of public land, there being
power to so reserve or appropriate it, is one
of fact rather than of mere form

Lands which for a long period of time
have been with the knowledge and acquies-
cence of the government included in the
site of a reservoir used as a feeder of a
canal in the maintenance and operation of
which the government is interested, are
not "unappropriated public lands" and
are therefore not subject to soldiers' addi-
tional homestead entry

When a tract of land has been once legally
appropriated to any purpose, from that
moment the land thus appropriated be-
comes severed from the mass of public
lands, and no subsequent law, or proclama-
tion, or sale, would be construed to embrace
it or to operate upon it, although no reser-
vation were made of it....

355

53

611

186

276

Paragraph 21 of Rules and Regulations
Governing Forest Reserves, issued April 4,
1900, amended..

Under the exchange provisions of the act
of June 4, 1897, C., the owner of lands cov-
ered by a patent from the United States
and situate within the limits of a public
forest reservation, filed in the Visalia, Cal.,
local land office, a relinquishment to the
United States of his lands in the forest
reservation, accompanied by evidence of
his full and unineumbered title thereto,
and at the same time made selection, by ap-
propriate application in writing, of a like
area of public lands in the Visalia land
district desired in exchange for the lands
relinquished, accompanying the selection

113

590

Page.

by an affidavit declaring the selected lands
to be unoccupied and nonmineral. Shortly
thereafter K. Company and others filed
sworn and corroborated protests against
the selection, alleging that the selected
lands, at the time of their selection, were
occupied by protestants under the placer
mining laws and were then known to be
valuable for their deposits of petroleum or
mineral oil. The selection has not been
carried to patent. Held:

1. The land department has jurisdiction
and power, either on its own motion or at
the instance of third parties, at any time
before a patent is issued upon a selection
made under the exchange provisions of said
act and after appropriate notice, to insti-
tute and carry on such proceedings as may
be necessary to enable it to determine
whether the selected lands were at the
time of their selection in the condition and
of the character subject to selection.

2. Lands chiefly valuable on account of
the deposits of petroleum or mineral oil
found therein are mineral in character and
not subject to selection under said act.

3. The protests of K. Company and others
require that a hearing be ordered to deter-
mine the condition and character of the
lands selected.

4. The inquiry will be directed to the
conditions existing and known at the time
when the selection was made, and no con-
sideration will be given to any change sub-
sequently occurring or to any discovery or
development of mineral thereafter made.

5. The evidence bearing upon the charac-
ter of the selected lands will not be re-
stricted to the discovery or development of
mineral therein and to their geological for-
mation, but may extend to the discovery
and development of mineral in adjacent
lands and to their geological formation.... 583
The essential requirements to be complied
with by a person seeking title to a tract of
land in exchange for land covered by a
patent in a forest reservation, are: (1) That
he must relinquish to the government the
tract in the forest reservation, and submit
satisfactory evidence respecting the title
thereto; (2) That he must make selection
of the tract desired in exchange for the
tract relinquished, and accompany the
selection by proof showing the selected
land to be of the condition and character
subject to selection..

The land department has the jurisdiction
and power, either of its own motion or at
the instance of third parties, at any time
before patent is issued, and after appropri
ate notice, to institute and carry on such
proceedings as may be necessary to enable
it to determine whether the selected lands
were of the requisite class and character
and whether the selection was in other
respects regular and in conformity with
the requirements of the act. But the

550

It is incumbent upon one wishing to take
advantage of the offer of exchange made
by the governinent by the act of June 4,
1897, to submit with his selection proof that
the title to relinquished lands, to which he
claims full title, has passed out of the United
States by some means the full legal equiva-
lent of a patent and is vested in him, and
that at the date of selection the selected
lands are unoccupied and nonmineral in
character. Until such proof is submitted a
selector has not done that which converts
the offer of exchange into a contract fully
executed on his part whereby he secures a
vested right in the selected lands.......... 570
Ordinarily, as between the government
and a selector, he might be permitted to
perfect the selection by supplying the nec-
essary proof at a subsequent time, but
his rights would be determined as of the
date the selection was thus completed. In
this case no such proof has been supplied,
and it is admitted by the selector that the
lands attempted to be selected are now
known to contain valuable deposits of min-
eral oil; hence these selections can not now
be perfected......

In so far as existing conditions appear
from the land-office records, no showing by
the selector need be made, because the offi-
cers of the government must take notice of
the public records; but as to conditions the
existence or nonexistence of which can not
be determined by anything appearing upon
these records, the required evidence must
be furnished by the selector.......

570

550

The right to a patent under the act of
June 4, 1897, once vested, is, for most pur-
poses, the equivalent of a patent issued;
and when in fact issed, the patent relates
back to the time when the right to it be-
came fixed, and takes effect as of that date. 550
A person making selection under the act
of June 4, 1897, who has complied with all
the terms and conditions necessary to enti-
tle him to a patent to the selected land,
acquires a vested interest therein and is
to be regarded as the equitable owner
thereof

Before any selection under the exchange
provisions of the act of June 4, 1897, can be
approved, whether the tract relinquished
as the basis therefor is covered by an un-
perfected bona fide claim or by a patent, it
must be duly determined that the land se-

550

Page.

lected was, at the time of selection, of the
character and condition subject thereto,
and also that the tract relinquished was, at
the same time, subject to the relinquish-
ment. Such determination, however, in
any case wherein the tract relinquished is
covered by a final certificate, does not call
for or require the issuance of a patent for
such relinquished tract, but is instead, in
effect, a determination that patent shall
not issue upon such certificate, that the full
legal title to the tract is not to pass out of
the government by virtue of the certificate
or of the law under which the same was
issued, and that whatever right or title had
previously passed from the government has
been returned to it......

....

538

By relinquishment and reconveyance to
the United States, under the exchange pro-
visions of the act of June 4, 1897, of lands
within the limits of a forest reserve, and
the selection of other lands in lieu thereof,
the party making such relinquishment
and selection acquires a right to have the
selection approved, if there is otherwise no
objection thereto, of which he can not be
divested by the subsequent elimination
from the boundaries of the forest reserve of
the lands in lieu of which the selection is
made
124
By relinquishment and reconveyance to
the United States, under the exchange pro-
visions of the act of June 4, 1897, of lands
within the limits of a forest reserve, and
the due selection of other lands in lieu
thereof, the party making such relinquish-
ment and selection acquires a right to
have the selection approved, of which he
can not be divested by a subsequent order
withdrawing the selected lands from set-
tlement, sale, or disposal," pending a deter-
mination whether or not they shall be
permanently reserved for forest purposes.". 145
The provision of section 10 of the act of
March 3, 1893, that the lands in the Chero-
kee Outlet "shall be disposed of to actual
settlers under the homestead laws only,"
precludes the allowance of an application
to select such lands under the exchange
provisions of the act of June 4, 1897, in lieu
of lands within a forest reserve
... 268

Lands within the limits of a forest
reserve, which at the date of its establish-
ment are covered by a lawful pre-emption
filing of record, are excepted from such re-
serve subject to claimant's continued com-
pliance with law; but in the event of the
cancellation of such filing the land at once
becomes a part of the reserve...........

A homestead entry covering lands within
the limits of a forest reservation, of record
at the date of the proclamation establish-
ing the reservation, is effective to except
the lands covered thereby from the effect
of the proclamation only so long as the
entryman continues to comply with the
law. On the relinquishment of the entry

158

An application to select lands under the
act of June 4, 1897, must be rejected where
the lands offered as a basis for such selec-
tion are in any manner encumbered, so
that the United States can not, by the ac-
ceptance of a relinquishment of the lands
offered, be reinvested with all the right and
title with which it had previously parted.. 15
There is no authority for applying the
rule of approximation permitted in entries
under the homestead and other laws to
cases of exchange of lands under the act of
June 4, 1897; but the rule that "a slight
difference in the acreage of the tract relin-
quished and selected will not be deemed an
inequality in quantity" may be followed
in proper cases arising under the exchange
provisions of said act...

The regulations of April 4, 1900, issued
under the act of June 4, 1897, do not in terms
include or exclude mining companies or
corporations, and it rests with the Secretary
of the Interior to determine, in the exer-
cise of the discretion with which he is
invested by the statute, whether these
regulations shall include or exclude such
companies or corporations....

A company or corporation engaged in
mining or in prospecting for valuable min-
eral deposits is a "miner" or "prospector,"
as the case may be, within the meaning of
the act of June 4, 1897....

The act of June 4, 1897, does not in itself
permit any person, company or corporation
to use, free of charge, stone or timber found
upon a forest reservation, but confers upon
the Secretary of the Interior authority to
say, through regulations prescribed by him,
by whom, among those named, and when
and to what extent, the privilege named in
the statute may be enjoyed................

Coal lands are mineral lands within the
meaning of the act of June 4, 1897, and as
such are subject to entry, when found in
forest reservations, the same as other min-
eral lands within such reservations..............

By the act of June 4, 1897, it was the pur-
pose of Congress to provide a complete
scheme for the control and administration
of forest reserves, and by the last proviso of
the amendatory act of June 6, 1900, it was
intended that forest reservations then exist-
ing or thereafter to be created in the State
of California should be exempted from the
operation of said amendatory act only, the
act of 1897 remaining in force, unchanged,
as to such reservations..

105

462

462

462

92

377

Instructions of August 3, 1900, relative to
disposal of original portion of Fort Me-
Pherson abandoned military reservation... 213
Instructions of May 8, 1901, relative to
purchase of pasture and grazing land in
Fort Fetterman military reservation....... 601
Lands in abandoned military reservations
coming within the purview of the act of
August 23, 1894, were by said act opened to
homestead entry as well as to settlement.. 90

The acts of July 5, 1884, and August 23,
1894, relative to the disposition of lands in
abandoned military reservations, provide
a mode for the disposal of such lands ex-
clusive of all others, and lands thus set
apart for disposition in a designated manner
are not subject to selection as "unappro-
priated" public lands under the grant of
July 16, 1894, to the State of Utah..

The provision in section 2 of the act of
February 13, 1891, for the reversion of the
lands granted by said section in the event
of non-use, is a condition subsequent, and
can be taken advantage of only by the
grantor.......

301

543

A settlement on an odd-numbered section
within Fort Randall abandoned military
reservation, and an application to enter
the tract settled upon filed prior to the ex-
piration of the period accorded the State
by the act of March 3, 1893, within which
to exercise a preferred right of school in-
demnity selection, can not defeat the as-
sertion of such right on the part of the
State, unless the settler was an actual occu-
pant of said tract prior to the establishment
of the reservation or had settled thereon
prior to January 1, 1884, in good faith, for
the purpose of securing a home and enter-
ing the same under the general land laws. 286
The act of June 19, 1874, providing the
method in which the lands formerly within
the Fort Reynolds military reservation
should be disposed of did not amount to
a sale or disposition of said lands, and
hence did not bring them within the ex-
ception of lands "sold or otherwise dis-
posed of," contained in the grant of school
lands in the State of Colorado......

The purpose of the second proviso to the
act of May 28, 1896, was to validate and
protect homestead and pre-emption claims

310

Page.

upon lands in the Fort Sully abandoned
military reservation initiated by settlement
prior to the date of its passage, and to this
extent said act supersedes the general act
of July 5, 1884, as to the disposition of lands
in said reservation

A homestead application for surveyed
lands in the Fort Hays military reservation,
opened to settlement and entry by the act
of August 23, 1894, presented by a qualified
applicant and rejected, at a time when said
lands were legally subject to entry, and
pending an appeal, serves to except the
lands covered thereby from the subsequent
grant to the State by the act of March 28,
1900..

Land in the Fort Hays military reserva-
tion excepted from the grant to the State
made by the act of March 28, 1900, because
included in a pending homestead applica-
tion, under which entry was subsequently
made, upon the filing of a relinquishment
by the entryman becomes public land, sub-
ject to disposition, and, prior to the accept-
ance of the grant by the State, entries
therefor may be properly allowed....................

Reservoir.

See Reservation; Right of Way.

Residence.

Where a homesteader is granted a leave of
absence, the time of his absence shall not
be deducted from the period of residence
required by law, but he must show full five
years' residence exclusive of the time of
actual absence under his leave.....

A married woman, in the absence of legal
cause for separation from her husband, is
not free to select or maintain a separate res-
idence, and is therefore disqualified to make
nomestead entry

Right of Way.

140

90

468

21

9

The provisions of the acts of March 3, 1901,
and February 15, 1901, relating to rights of
way for telephone and telegraph lines
through Indian reservations, are not neces-
sarily repugnant, and both may, without
inconsistency or conflict, be given effect... 588
It is not necessary, in order to warrant the
approval of a plat of additional station
grounds filed by a railroad company under
the act of July 27, 1866, that the plat shall
embrace only lands in actual use and nec-
essary for the present operation of the road.
The company has the right to anticipate the

Page.

future necessities of the road, but the show-
ing of present necessities must reasonably
support the claim for future use...

The act of March 2, 1899, prescribes limita-
tions as to the width and length of station
grounds to be taken thereunder, and a map
of station grounds which shows a disregard
of these limitations can not be legally ap-
proved...........

The right of way privileges granted by the
act of March 3, 1875, are limited to railroad
companies organized as common carriers
for the benefit of the general public; hence
a company organized for the purposes of
'surveying.
laying out,

....

con-

structing, and operating a railway or rail-
road bridge," is not entitled to such priv-
ileges.

239

599

77

The taking of gravel from a pit by a rail-
road company for the use and maintenance
of its line of road is for a public purpose or
use within the meaning of the act of March
3. 1875, and a right of way map filed under
said act, showing a spur from the main line
of the road to a gravel pit, constructed for
the purpose of securing gravel for use along
the main line of road, may be approved, if
otherwise free from objection.........
238

Rights secured under the act of March
3, 1875, by the approval of maps of location
of a line of railroad do not become for-
feited merely by failure to construct and
operate a railroad along such line of loca-
tion within the period named in the fourth
section of that act; but where those claim-
ing under such approval have filed written
consent to the approval of conflicting maps
of location, the latter maps may also be ap-
proved...
591

On application for right of way for con-
duits, canals, and pipe lines, under the act
of May 14. 1896, the Department will not
attempt to interfere with the control of the
water, or determine the rights of conflict-
ing claimants thereto, except in so far as
may be necessary to ascertain whether the
applicant has shown such prima facie right
to the water as will entitle him to utilize,
for the purposes contemplated, the grant
for which he has applied....

An application for right of way for con-
duits, canals, and pipe lines under the act
of May 14, 1896, to be used for the pur-
pose of generating, manufacturing, and
distributing electric power, will not be
denied, on the ground of a prior appropria-
tion of the water, if it is made to appear
that the water can be used for said pur-
poses, and returned to its natural channel,
without impairment to the rights of the
prior appropriator or material abridgment
of the uses to which it had been applied
under such prior appropriation

Riparian Rights.

See Survey.

382

383