Circular of May 18, 1904, under act of April
19, 1904, relative to production in court, for
use as evidence, of original papers on file in
General Land Office..
Relinquishment.
A contract to sell the relinquishment of
a homestead entry is not in violation of the
oath required of a homestead applicant
by section 2290 of the Revised Statutes as
amended by the act of March 3, 1891, and
is no ground for cancellation of the entry if
good faith on the part of the entryman at
the time of making his entry is apparent
A relinquishment by a desert-land entry-
man, accompanied by his application to se-
lect the relinquished land in lieu of other
land within a forest reserve deeded by him
to the United States under the provisions of
the act of June 4, 1897, which relinquish-
ment and application are made for the
express purpose of completing title by ex-
change under said act instead of by compli-
ance with the desert-land law, is not ab-
solute in effect, but is conditioned upon
the acceptance of the application to select;
and where such application is not allowed,
and entries of the relinquished land are
permitted to be made by other parties,
claimants under such entries will be re-
quired to show cause why their entries
should not be canceled and the original
desert-land entry reinstated..............
Repayment of the purchase money paid
on a desert land entry will not be allowed,
on the ground that the entry is non-com-
pact, where upon its face the entry does
not show such a departure from a reason-
able requirement of compactness as would
necessarily preclude its confirmation.. 667,668
Repayment of the purchase money paid
on a desert land entry will not be allowed
where the entry upon its face does not
show such a departure from a reasonable
requirement of compactness as would
necessarily preclude its confirmation, and
it is not shown by the record, or otherwise
disclosed, that said entry was not as nearly
in the form of a technical section as the
situation of the land and its relation to
other lands would admit of
Where a part of a desert land entry is
voluntarily relinquished by the entryman,
repayment of the purchase money paid on
such relinquished portion will not be al-
lowed, on the ground that the entry was
non-compact and could not have been con-
firmed, where the entry upon its face does
not show such a departure from a reason-
able requirement of compactness as would
necessarily preclude its confirmation, and
it is not shown by the record, or otherwise
disclosed, that said entry was not as com-
23286 Vol. 32-03-
pact is the situation of the land and its
relation to other lands would admit of..... 660
The right to repayment of the purchase
money paid on a desert land entry made of
unsurveyed land will be recognized where
the entry as allowed is in form prima facie
non-compact, and it is not shown that it
was as nearly in compact form "as the sit-
uation of the land and its relation to other
lands will admit of," and was for that rea-
son, and the further reason that the entry
embraced lands on both sides of a river,
erroneously allowed and could not have
been confirmed..
The act of entering land under the desert
land law carries with it the necessary im-
plication that the land is susceptible of
reclamation, and the entryman is not enti-
tled to repayment of the purchase money
paid on such entry on the ground that the
location and position of the land is such that
it can not be reclaimed..
The act of March 3, 1877, places the bur-
den of proof as to the character of the land
entered thereunder upon the entryman and
his witnesses, and where he states in his
declaration that he has personally exam-
ined the land and each legal subdivision
thereof, repayment of the purchase money
paid on such entry will not be made on the
ground that the land is not of the character
contemplated by the law...
Where land entered under the desert
land law is not of the character subject to
entry under that law, but is expressly rep-
resented by the entryman to be of such
character, and the entry is allowed upon
such representation, the entry is not "erro-
neously allowed" within the meaning of
the repayment law, and the entryman is
therefore not entitled to repayment of the
purchase money paid on such entry
...... 667
Repayment of the purchase money paid
on a commutation cash entry will not be
allowed where the applicant is claiming
under a mortgage acquired by assignment
executed subsequently to the cancellation
of the entry
During the pendency of the suit to estab-
lish the title of the United States to certain
lands in California within the conflicting
limits of the grants in aid of the Southern
Pacific branch line and the Atlantic and
Pacific railroad, and to determine the bona
fides of alleged purchases thereof from the
Southern Pacific company, such lands were
not subject to disposal, and a purchase
made of any such lands during such time
under the provisions of section 5 of the act
of March 3, 1887, by one adjudged in the
pending suit not to be a bona fide purchaser,
is an entry erroneously allowed, which can
not be confirmed within the meaning of
section 2 of the act of June 16, 1880, and the
purchaser is entitled to repayment of the
money paid on account of such purchase.. 258
Reservation.
See Right of way.
GENERALLY.
An executive order creating a reserva-
tion for a public purpose, and embracing
land covered by a prima facie valid entry,
will take effect thereon if the entry is sub-
sequently canceled
INDIAN.
There is no general authority for the issu-
ance of patent to Indian allottees, and in
the absence of an express requirement in
the agreement of July 7, 1883, between the
United States and the Indians of the Co-
lumbia and Colville reservations, and in
the act of July 4, 1884, ratifying and confirm-
ing the same, that patents shall issue for the
lands allotted thereunder, the land depart-
ment is without authority to issue patents
for such lands.
MILITARY.
The preference right of entry accorded by
the act of August 23, 1894, opening lands in
abandoned military reservations to settle-
ment and entry, to settlers "who are quali-
fied to enter under the homestead law,"
extends only to persons who are qualified
at the date of the presentation of their ap-
plications....
The provision in section 13 of the act of
May 26, 1864, creating the Territory of Mon-
tana, that "all laws of the United States
which arenot locally inapplicable shall have
the same force and effect within said Terri-
tory of Montana as elsewhere in the United
States," was intended to give effect in said
Territory only to such general laws as were
not locally inapplicable, and did not oper-
ate to carry into effect as to said Territory
the special limitation contained in the act
of February 14, 1853, by which the authority
of the executive to establish reservations
was restricted to not exceeding six hun-
dred and forty acres at any one place...... 300
FOREST LANDS.
Generally.
Directions given that specific exception
be made of mineral lands in all orders for
the temporary withdrawal of lands from
entry and location with a view to deter-
mining whether they shall be included
within a permanent forest reservation..... 307
Lands "classified as non-mineral" at the
time of the government survey, are of the
class of lands subject to selection under
the act of March 2, 1899, and the character
of lands so classified and selected will not
be investigated on a protest presented after
the survey and selection and alleging the
present mineral character of the lands..... 28
When the field notes and surveyor's re-
turn make no notation whatever of min-
erals in the land being surveyed, such lands
are considered and treated as given a non-
mineral classification by the surveyor .....
When actual possession of land held in
private right in a forest reserve is aban-
doned by the owner, and conditions exist
by reason of fallen or dead timber which
make it a menace to the safety of the forest
growth on the reservation, it is within the
power of the Secretary of the Interior to
take proper measures for the abatement of
such conditions
110
Agricultural lands selected by the for-
ester of the Agricultural Department under
the provisions of the act of June 27, 1902, to
be included in the forest reserve provided
for in said act as "necessary to the econom-
ical administration and protection" of such
reserve, do not become part of such con-
templated reserve by virtue of their selection
for the purpose mentioned, but are merely
in the condition of lands withdrawn from
settlement or other disposal with a view
to their future reservation when the oc-
casion therefor shall arise by the forest
reservation coming into existence ......
Prior to becoming part of a forest re-
serve by the removal of ninety-five per
centum of the timber therefrom, lands
withdrawn for forestry purposes under the
act of June 27, 1902, are merely in a state
of withdrawal with a view to future reser-
vation, and remain under the administra-
tive power of the Secretary of the Interior
as the head of the land department ....
The survey of a homestead claim in the
Black Hills forest reserve, by metes and
bounds, under the provisions of the act of
March 3, 1899, will not be made where the
claim is not as nearly as practicable in
square form and parts thereof are of less
width than the smallest legal subdivision.. 455
The act of March 3, 1899, does not confer
upon settlers in the Black Hills forest re-
serve the right to make entry of irregular-
shaped tracts, except where the improve-
ments of the settler can not be saved and
protected by making entry according to
legal subdivisions, and in such case he
may designate what portions of the tracts
he desires to have surveyed and may omit
any part of his improvements, even though
it be his residence, provided the entry be
made as nearly as practicable in square
form and the tracts are contiguous..... 522
The mere inclusion of sections sixteen
and thirty-six, granted for school purposes,
within a withdrawal made for the purpose
of permitting investigation and examina-
tion of the lands with a view to their possi-
ble inclusion in a forest reserve, does not
place them within a "reservation" within
the meaning of that term as employed in
the act of February 28, 1891, and therefore
does not afford a base for the selection of
indemnity lands........
The Secretary of the Interior has author-
ity to permit the owner of lands within the
Yosemite National Park to construct and
use a wagon road over the park lands, to be
at all times under the exclusive control of
the former, where necessary for the purpose
of ingress and egress in the appropriate de-
velopment and utilization of the latter's
property, under such restrictions and regu-
lations as shall "provide for the preserva-
tion from injury of all timber, mineral
deposits, natural curiosities, or wonders
within said reservation, and their retention
in their natural condition"
Act of June 4, 1897.
It is essential to a lieu selection under the
act of June 4, 1897, that the land intended
as a base for the selection should be speci-
fically designated
Under the exchange provisions of the act
of June 4, 1897, the selection of lands in lieu
of.other lands within a forest reserve relin-
quished to the United States with a view to
such selection, can only be made by or in
behalf of the owner of the lands relinquish-
ed.
The United States will not accept title,
under the exchange provisions of the act of
June 4, 1897, from one of several claimants
to ownership, nor will it accept title only
prima facie good.
The legal title created by the issue of a
patent for public land relates back to the
inception of the equitable title arising from
payment therefor; and where after the ac-
quisition of equitable title and prior to is-
sue of patent the land is transferred, the
legal title, upon issue of the patent, inures
to the benefit of the grantee....
No right to make selection under the act
of June 4, 1897, can arise until legal title
exists in the person assuming to convey it
to the United States and claiming the right
to make selection......
Under the exchange provisions of the act
of June 4, 1897, title to fractional parts of a
government subdivision may be accepted
by the government where the owner relin-
quishes all the land in the subdivision to
which he has title....
The character of land at the time of its
proposed relinquishment, rather than the
class of entry under which the United
States parted with its title, determines its
acceptability under the exchange provi-
sions of the act of June 4, 1897.
Land within a forest reserve covered by
an Indian allotment may constitute a
proper basis for exchange under the pro-
visions of the act of June 4, 1897..........
Lands which are to be disposed of for the
benefit of a tribe of Indians, and only under
laws which require a cash payment, are not
subject to selection under the act of June
4, 1897...
Land known to be mineral at the time of
its attempted relinquishment can not be
accepted as base for selections under the
exchange provisions of the act of June 4,
1897.....
Provision having been made by the act
of August 15, 1894, for the disposition of the
ceded Nez Perce lands under the mining,
townsite, and homestead laws only, said
lands are not subject to selection under the
exchange provisions of the act of June 4,
1897.
Land actually occupied is not "vacant
land open to settlement," within the mean-
ing of the act of June 4, 1897, and is there-
fore not subject to appropriation under said
act; and any question as to whether the oc-
cupancy is such as meets the requirements
of the homestead or other laws, or whether
the occupant is qualified to assert and main-
tain a claim under those laws, will not be
tried and determined under an application
to select the land under said act..
Suit for the recovery of title to lands in-
cluded in an approved and certified school
selection, invalid because of insufficient
base, can not prevail against a bona fide
purchaser for value; and, where within a
forest reserve, such lands may be assigned
by such purchaser as a basis for the selec-
tion of lieu lands under the exchange pro-
visions of the act of June 4, 1897...
Lands embraced in an application to
make lieu selection under the provisions of
the act of June 4, 1897, which had not, at
the date of the proclamation of May 22, 1902,
establishing the Medicine Bow forest re-
serve, been shown, by proper proofs, to be
of the class and character subject to such
selection, do not come within the excepting
clause of said proclamation
Claims to lands within a forest reserve
relinquished to the United States with a
view to the selection of other lands in lieu
thereof under the exchange provisions of
the act of June 4, 1897, arising not by act or
sufferance of the relinquisher, but inde-
pendently asserted by third parties under
the laws and supposed title of the United
States, after record of a defectively authen-
ticated deed for the relinquished land, sub-
sequently cured, constitute no bar to con-
summation of the exchange under said act. 283
A relinquishment of lands in a forest re-
serve in the Territory of New Mexico, with
a view to the selection of other lands in lieu
thereof under the exchange provisions of
the act of June 4, 1897, will not be accepted
unless in all conveyances affecting the title
to the lands relinquished the grantor, if
married, was joined by the wife, or it is
clearly shown that she is precluded from
asserting any interest in the land ......
The abstract of title accompanying the
relinquishment of lands within a forest re-
serve as a basis for the selection of lands in
lieu thereof under the provisions of the act
of June 4, 1897, must be accompanied by a
certificate from the officer having custody
of the tax roll and charged with the collec-
tion of taxes that no taxes levied upon the
property, or lien thereon, remain unpaid.. 151
An application to select lands under the
exchange provisions of the act of June 4,
1897, must be accompanied by a certificate
from the clerk of the proper court of the
county wherein the base lands are located,
showing that there are no judgments of
record or suits pending affecting the title to
said base lands, and also by an affidavit of
the applicant that such lands have not been
assigned as base for any other application
made by him under said act..
Where the owner of lands within a forest
reserve in the State of California executes
and acknowledges outside of said State a
deed purporting to convey said lands to the
United States, with a view to making se-
lection in lieu thereof under the exchange
provisions of the act of June 4, 1897, he must
furnish the certificate of a clerk of a court of
record of the county or district where such
deed was executed and acknowledged, cer-
tifying to the official character, qualification
and signature of the officer before whom the
acknowledgment was taken........
The recording of a deed purporting to
convey lands to the United States, and ten-
der thereof to the land department under
the exchange provisions of the act of June
4, 1897, constitute a mere assertion by the
applicant of his title to the land and his
right to make selection; and no equitable
title to the land relinquished vests in the
United States until the title has been exam-
ined, approved, and accepted by the land
department..
Where lands in a forest reserve have been
of record conveyed to the United States,
with a view to the selection of other lands
in lieu thereof under the exchange pro-
visions of the act of June 4, 1897, and appli-
cation to select lieu lands is made but
rejected because defective, and a corrected
application is subsequently filed, the ab-
stract of title of the relinquished lands must
be extended to the date of such subsequent
application, so as to show whether or not
adverse claims to the land have in the
meantime arisen; and if such have arisen
they must be removed before selection of
lands in lieu of those relinquished will be
allowed...
Where the owner of lands within a forest
reserve makes reconveyance of the same
to the United States, with a view to select-
ing other lands in lieu thereof under the
exchange provisions of the act of June 4, 1897,
no act should be done or permitted by the
government looking toward the disposal of
said lands until the title tendered has been
examined, found satisfactory, definitely ac-
cepted, and noted on the records of the local
office; but where an application for the
land, otherwise regular, has been accepted
by the local officers prior to such time, it
will be treated as attaching immediately
upon the receipt of notice by the local office
that the title tendered has been accepted
and selection of other land in lieu thereof
allowed, if there be no other valid adverse
claim.
Where it is disclosed by the abstract of title
accompanying a relinquishment of lands
within a forest reserve under the act of
June 4, 1897, with a view to the selection of
other lands in lieu thereof, or in any other
manner, that adverse claims exist to the
lands relinquished, the land department
can not try the question as to which claim-
ant has the better title or right, and such a
controversy must in some manner be ter-
minated before a title from either claimant
can be accepted as base for selection of pub-
lic land under the exchange provisions of
said act....
Defects in or omissions from the abstract
of title of the base lands accompanying an
application to select lands under the ex-
change provisions of the act of June 4, 1897,
which are cured or supplied by the records
of the land department, will be disregarded
in passing upon the sufficiency of such ap-
plication and the showing made in support
thereof
An application to select lieu lands under
the exchange provisions of the act of June
4, 1897, can not be allowed where it is
shown by the abstract of title accompany-
ing the same that there is excepted and
reserved from the tract assigned as base
for the selection a strip of land for railroad
purposes and that said base land is encum-
bered by a perpetual obligation to main-
tain fences inclosing such reserved strip... 315
The reservation of a right of way thirty
feet in width along each side of all section
lines, for a public highway, in all convey-
ances of swamp lands made by the State of
Oregon, does not constitute such an incum-
brance upon lands so situated and embraced
within a forest reserve as to render them
unacceptable as bases for the selection of
other lands in lieu thereof under the pro-
visions of the act of June 4, 1897.
Defined rights of occupancy, in the na-
ture of easements and protected by statutes,
which can not be injuriously affected by
disposal of the fee of the servient lands, do
not exclude such lands from selection
under the act of June 4, 1897
The fact that a tract of land within a for-
est reserve is subject to a right of way to
construct and maintain a water pipe line
within a narrow strip across the same,
segregated from the tract by a survey and
clearly defined, will not prevent the accept-
ance of a relinquishment of the tract and
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The preference right of entry accorded a
successful contestant is personal and can
not be assigned, or waived in favor of
another, and where, during the period
allowed him within which to exercise such
right, he applies to select the land, in the
name of and as the attorney in fact for
another, under the act of June 4, 1897, with-
out making an application to enter in his
own behalf during such period, he thereby
waives his right, and the land becomes sub-
ject to entry by the first legal applicant.... 466
A relinquishment by a desert-land entry-
man, accompanied by his application to
select the relinquished land in lieu of other
land within a forest reserve deeded by him
to the United States under the provisions of
the act of June 4, 1897, which relinquish-
ment and application are made for the ex-
press purpose of completing title by ex-
change under said act instead of by com-
pliance with the desert-land law, is not
absolute in effect, but is conditioned upon
the acceptance of the application to select ;
and where such application is not allowed,
and entries of the relinquished land are per-
mitted to be made by other parties, claim-
ants under such entries will be required to
show cause why their entries should not be
canceled and the original desert-land entry
reinstated..
Where in making selection of unsurveyed
lands under the exchange provisions of the
act of June 4, 1897, a third party is em-
ployed to protract the lines of survey over
the land desired, and selection is made ac-
cording to the description furnished by
such party, and it afterwards develops that
mistake was made in the description so fur-
nished, the Department can not recognize
any such mistake as a sufficient ground for
amendment of the selection..............
The reservation from adverse appropria-
tion of lands within a township for the sur-
vey of which application has been made by
the governor of the State, with a view to
selection thereof by the State, for a period
from the date of the filing of the applica-
tion until the expiration of sixty days from
the filing of the township plat of survey, as
provided for in the act of August 18, 1894,
is conditioned upon publication of the
notice provided for in said act, to be begun
within thirty days from the date of the fil-
ing of the application, and in case of fail-
ure to begin such publication within the
time limited, the State has no such claim to
the land as would bar the allowance of an
application to select the same in lieu of
other lands within a forest reserve relin-
quished under the exchange provisions of
the act of June 4, 1897, with a view to mak-
ing such lieu selection
The second section of the act of January
13, 1897, relating to the construction of res-
ervoirs upon unoccupied public lands for
the watering of livestock, vests in the Sec-
retary of the Interior a discretion as to the
amount of land that may be reserved for
any such reservoir, limiting the amount to
not more than one hundred and sixty acres;
and the regulations issued under said sec-
tion do not contemplate that there shall be
reserved necessarily one hundred and sixty
acres because the reservoir has a capacity
which authorizes such reservation, but it
was only intended that such reservation
should be made as is necessary for the use
and maintenance of the reservoir..
A homestead entryman is entitled to six
months from the date of his entry within
which to establish residence, and where
prior to the expiration of such time he en
lists in the military service of the United
States he is within the saving provisions of
the act of June 16, 1898, and contest against
his entry will not lie during the continu-
ance of such service, even though he may
never have established actual residence
upon his claim nor in any manner improved
the same
Regulations concerning railroad right of
way over the public lands..
481
Rights of way under the acts of March 3,
1875, and March 3, 1891, are mere ease-
ments, and an applicant to purchase lands
over which they pass, under the timber and
stone act, will be required to pay for the
entire area of the legal subdivisions applied
for, notwithstanding such rights of way....
No such right is acquired by virtue of an
application for right of way for a railroad
under the act of March 3, 1875, before the
approval thereof, and prior to the con-
struction of the road, as will prevent the
Secretary of the Interior withdrawing the
lands covered thereby, for use as a reser-
voir site, under the provisions of the act of
June 17, 1902.....
Where a railroad company files an appli-
cation intended to be for right of way for a
railroad through a canyon or narrow defile,
but by mistake the map of its proposed road
shows the line of route to be some distance
from the canyon and running through an
impassable mountain range, it will be al-
lowed to amend its application to conform
to the original intention, to the exclusion
of an intervening conflicting application
for a reservoir site in the same canyon or
defile
452
The proviso to section 1 of the act of
March 2, 1899, which act provides for
acquiring rights of way by railroad com-
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