Abandonment.

See Contest.

Adverse Claim.

See Mining Claim.

Alaskan Lands.

Page.

Paragraph 13 of regulations of
August 1, 1904, relating to townsites
in Alaska, amended-

The provisions of section 6 of the
act of May 14, 1898, conferring upon
the Secretary of the Interior author-
ity to sell to the owner or owners of
a wagon road or tramway, not to ex-
ceed twenty acres of public land, for
terminal facilities, at each end of the
road, contemplates the sale of an ab-
solute fee in the lands, and where
the lands, at the date applied for,
are included within a forest reserve,
they are not subject to sale under
said section, notwithstanding the
wagon road or tramway in connec-
tion with which they are desired
may have been constructed prior to
the creation of the reserve-----

In view of the provisions of the
act of February 1, 1905, transferring
to the Secretary of Agriculture the
execution of certain laws affecting
public lands within the limits of for-
est reserves, and the construction
placed upon that act by the Secre-
tary of the Interior and concurred in
by the Secretary of Agriculture, ap-
plications for permits for use of
rights of way within forest reserves
on account of wagon roads or tram-
ways, under section 6 of the act of
May 14, 1898, come within the juris-
diction and control of the Secretary
of Agriculture

Allotment.

See Indian Lands.

Amendment.

See Application.

Appeal.

See Practice.

71

19

19

No rights are acquired by an ap-
plication to purchase under the tim-
ber and stone act presented at a time
when the land is not subject to
such appropriation

Pending the disposition of a
school land indemnity selection, even
though erroneously received, no oth-
er application including any portion
of the land embraced in such selec-
tion should be accepted, nor will any
rights be considered as initiated by
the tender of any such application__

Applicants for public lands lose
no rights by mistakes and laches of
officers of the land department; but
persons claiming the benefit of this
rule must show that they have an in-
choate right and that they have not
been so dilatory in assertion of it as
to give rival bona fide applicants a
superior right

An application to amend a home-
stead entry, as well as all affidavits
filed in support thereof, should be
executed before some officer desig-
nated by section 2294 of the Re-
vised Statutes and the acts of March
11, 1902, and March 4, 1904, amend-
ing that section__.

An appeal from the rejection of a
defective application to enter does
not operate to reserve the land and
entitles the applicant only to a judg-
ment as to the correctness of such
action at the time it was taken, and
where the application was properly
rejected, it is immaterial, in the face
of an adverse appropriation of the
land, whether the applicant received
proper notice of such action_______ 541
Where a foreign-born homestead
applicant fails to file with his appli-
cation proof of naturalization, or
that he has declared his intention to
become a citizen of the United
States, it is within the discretion of
the local officers to receive and hold
the application and afford the appli-
cant an opportunity to furnish the
required proof, or to reject the ap-
plication outright, in which latter
event it can have no effect to segre-

Lands withdrawn under the pro-
visions of the act of June 17, 1902,
from all disposition "except under
the homestead laws," are not subject
to soldiers' additional entry under
section 2306 of the Revised Statutes. 653
An application to make soldiers'
additional entry under section 2306
of the Revised Statutes, although
filed prior to the passage of the act
of June 17, 1902, and pending at the
date of an order withdrawing the
lands covered thereby under the pro-
visions of said act, is not effective to
except the lands from such with-
drawal

An application to enter under the
provisions of section 2306 of the Re-
vised Statutes, even though approved
by the Commissioner of the General
Land Office, will not, prior to the al-
lowance of entry thereon, prevent a
withdrawal of the land covered there-
by under provisions of the act of
June 17, 1902 ____.

Directions given relative to the

311

560

Page

survey, subdivision, appraisal and
sale of certain lands in Idaho with-
in the irrigable area of the Minidoka
reclamation project, withdrawn from
entry, except under the homestead
law, for disposal in accordance with
the provisions of the act of June 17,
1902, and subsequently reserved by
the President, under section 2380 of
the Revised Statutes, as a town site.

There is nothing in the act of June
17, 1902, to prohibit a graduated
scale of the annual payments re
quired of users of water from rec-
lamation projects constructed under
said act, and in all cases where it
is deemed advisable this plan of pay-
ment may be adopted

The drilling of wells in the vicin
ity of an irrigation project, for the
purpose of determining whether
underground water exists that may
be made available in connection with
the project, comes within the power
conferred by the second section of
the act of June 17, 1902,"to make
examinations and surveys

for

the development of waters ".
Under the authority conferred upon
the Secretary of the Interior by the
act of June 17, 1902, he may, in his
discretion, enter into contracts for
the construction of irrigation works
or construct such works by labor em-
ployed and operated under the super-
intendence and direction of govern-
ment officials

No such rights are acquired by set-
tlement upon lands embraced in the
entry of another as will attach upon
cancellation of such entry, where at
that time the lands are withdrawn
for use in connection with an irriga-
tion project under the act of June
17, 1902; nor is there any authority
in said act for purchase by the gov-
ernment of the settler's claim or of
the improvements placed upon the
land by him__.

The act of June 17, 1902, contem-
plates that the United States shall
be the full owner of irrigation works
constructed thereunder, and clearly
inhibits the acquisition of property,
for use in connection with an irriga-
tion project, subject to servitudes or
perpetual obligation to pay rents to
a landlord holding the legal title
thereto

Uncompleted claims to lands with-
drawn under the provisions of the
act of June 17, 1902, and determined
to be needed for construction of irri-
gation works in connection with a
project that has been found practi-
cable, should not be allowed to be

16

78

533

567

478

186

perfected, but should remain in the
same status as existed at the time
the determination was made and the
rights of the claimants adjusted
upon the basis of that status____.

Page.

Lands held by virtue of a desert
land entry are held in private owner-
ship within the meaning of the act
of June 17, 1902, and the entryman
or his assignee is entitled to the
same rights and privileges and is
subject to the same conditions and
limitations, so far as the right to
the use of water is concerned, as any
other owner of lands within the irri-
gable area of an irrigation project
constructed under the provisions of
said act..

All entries of lands withdrawn
under the provisions of the act of
June 17, 1902, are subject to the con-
ditions imposed by section 3 thereof,
and a revocation of the withdrawal
operates to remove those conditions
and leaves the entries in the same
situation as entries made prior to the
withdrawal, and such conditions can
not, by force of a second withdrawal,
be reimposed upon such of the en-
tries made during the period of the
first withdrawal as had not been
perfected at the date of the second
withdrawal

The provision of section 5 of the
act of June 17, 1902, restricting the
sale of a right to use water for land
in private ownership to not more
than one hundred and sixty acres,
will not prevent the recognition of a
vested water right for a larger area
and protection of the same by allow-
ing the continued flowage of the
water covered by the right through
the works constructed by the gov

ernment

The Secretary of the Interior has
authority to make temporary leases
of lands reserved or acquired by pur-
chase for use in connection with an
irrigation project contemplated un-
der the provisions of the act of June
17, 1902, where use under the pro-
posed lease will not interfere with
the use and control of the lands
when needed for the purposes con-
templated by the reservation or pur-
chase

A homesteader whose entry is
within the irrigable area of an irri-
gation project under the act of June
17, 1902, but not subject to the re-
strictions, limitations and conditions
of said act, can not, under the law,
prior to the acquisition of title to
the land, enter into an agreement
to convey to a water-users associa-

tion any portion of the land em-
braced in his entry, to be held in
trust by such association and sold
for the benefit of the homesteader to
persons competent to make entry of
such lands

The fact that the act of April 18,
1896, provides that the lands in the
abandoned portion of the Fort As-
siniboine military reservation, there-
by opened to entry, shall be dis-
posed of only under the laws therein
specifically named, does not prevent
a withdrawal, under the provisions
of the act of June 17, 1902, of any
of said lands as to which no vested
right has attached

Lands formerly within the Fort
Buford military reservation were by
the act of May 19, 1900, restored to
the public domain and made subject
to existing laws relating to disposal
of the public lands, except such laws
as are not specifically named therein,
and are subject to withdrawal under
the reclamation act as other por-
tions of the public domain subject
to entry under the general land
laws; and a withdrawal of such
lands for reclamation purposes is
effective as to all of the lands for
which entry was not made within
three months from the filing of the
township plat, and prior to the with-
drawal

Page.

The power conferred upon the Sec-
retary of the Interior by the act of
June 17, 1902, to make the neces-
sary withdrawals to carry into effect
the provisions of the act, and to ac-
quire rights and property for the
purpose contemplated, implies the
right to appropriate for irrigation
purposes public lands to which the
United States has the full legal and
equitable title, but the inchoate
rights acquired by a bona fide settle-
ment made in pursuance of and in
strict compliance with the public
land laws should not be arbitrarily
taken without compensation. In de-
termining the compensation it
should be considered with reference
to the loss sustained by the settler
in depriving him of his inchoate
right by the arbitrary taking of
lands which he had cultivated, im-
proved and resided upon under au-
thority of law with a view to the
acquisition of the title___

The Secretary of the Interior has
no authority under the provisions of
the seventh section of the act of
June 17, 1902, to compensate settlers
upon lands within the limits of a
withdrawal made in connection with

532

653

347

155

Page

an irrigation project unless they
have in good faith acquired an in-
choate right to the land by com-
plying with the requirements of law
up to the date of the withdrawal and
have such a claim as ought to be re-
spected by the United States__

Withdrawals under the provisions
of the act of June 17, 1902, in con-
nection with irrigation projects, will
be made as follows:

1. When a site has been selected
with a view to making an examina-
tion and survey for the purpose of
determining whether the construc-
tion of an irrigation project upon
such site is practicable and advis
able, a withdrawal will immediately
be made of all lands believed to be
susceptible of irrigation from such
contemplated works, in accordance
with the second form of withdrawal
provided for by the third section of
the act of June 17, 1902, and at the
same time a preliminary withdrawal
will be made of lands that may be
needed for use in the construction
and operation of the works, which
will reserve such lands from entry
of every character but will not affect
entries previously made.

2. As soon as it shall be deter-
mined that the project is practicable
and advisable and the construction
of the same is approved and author-
ized by the Secretary of the Interior,
a withdrawal will be made of all
public lands shown by the examina-
tion and survey to be required for
use in the construction and opera-
tion of the works, and all persons
who may have made entry of such
lands within such withdrawal prior
to the preliminary withdrawal and
who have not acquired a vested right
thereto, will be notified of the appro-
priation of their lands for irrigation
purposes and that their entries will
be canceled and their improvements
paid for by the government as pro-
vided for by the eighth and ninth
sections of the circular of June 6,
1905, unless sufficient cause be shown
within sixty days from the date of
such notice

Canals and Ditches.

See Right of Way.

Circulars and Instructions.

See Table of, page XXIII.

Coal Land.

The affidavit prescribed by para-
graph 32 of the coal-land regula-

155

158

tions must be made by the claimant
himself

A "preference right of entry
under section 2348 of the Revised
Statutes arises where any person or
persons, severally qualified to enter,
have opened and improved any coal
mine or mines upon the public lands,
and are in actual possession of the
same; and such right accrues only to
the person or persons who have so
opened and improved such mine or
mines, and have the possession
thereof

Page.

A 'preference right of entry
under section 2348 of the Revised
Statutes is not created, or initiated,
by the filing of a declaratory state-
ment under section 2349. The office
of the declaratory statement is to
preserve the right, not to create it.
If the right does not exist, the
declaratory statement has no office
to perform and is without force or
effect for any purpose---

It is not in all cases essential to
the validity of an application to pur-
chase coal lands, or to the comple-
tion of proceedings thereunder, that
the applicant show that he had ac-
tually opened and improved a mine of
coal on the lands applied for. This
is necessary only where the applicant
asserts a preference right of entry
under the statute and must main-
tain his assertion or suffer defeat in
favor of another applicant or claim-

ant

49

178

178

178

It is not essential to the validity
of an application by an association
of four persons to purchase six hun-
dred (or six hundred and forty)
acres of coal lands that the appli-
cants shall have opened and im-
proved a mine or mines of coal on
each of the tracts embraced in the
application. It is sufficient in such
case, where there are no conflicting
claimants, that the applicants show
that they are severally qualified to
purchase, that the lands applied for
are of the character subject to sale
under the coal land laws, and that
as an association of persons the
applicants have expended not less
than five thousand dollars in working
and improving a mine or mines of
coal on the lands---
267

In determining whether a tract of
public land contains coal deposits the
well known rules of evidence are as
applicable as in any other case, and
whatever is relevant to and bears in
any degree upon the question is ad-
missible in evidence..........

In such cases the characteristics
peculiar to coal deposits are to be

194

kept in view, and the presence of
such deposits may be determined
upon authenticated evidence of con-
ditions which constitute the sufficient
guide of the geologist or coal ex-
pert

Where an association of four per-
sons has expended not less than five
thousand dollars in working and im-
proving a mine or mines of coal on
the public lands such association, in
the absence of any prior or superior
claim, may enter under the coal land
laws not exceeding six hundred and
forty acres, including such mining
improvements, even though no declar-
atory statement may have been filed
for the lands.

Page.

Contest.

The object and purpose of a declar-
atory statement under section 2349
of the Revised Statutes are to give
notice of, and to preserve for the
period specified in section 2350, a
preference right of entry already ac-
quired under section 2348; and such
preference right of entry is not cre-
ated or initiated by the filing of a
declaratory statement.

If the privilege of postponing
entry in the manner provided by sec-
tions 2349 and 2350, after a prefer-
ence right of entry shall have been
acquired under section 2348, be not
desired by the claimant, the filing
of a declaratory statement before
application or entry is not necessary
or required; and in such case, even
if the claimant should fail to make
application to enter and to pay for
the lands within the sixty days al-
lowed by section 2349 for filing a
declaratory statement, neither the
failure in this respect nor failure to
file a declaratory statement would
operate to forfeit the right to pur-
chase and enter the lands except in
favor of some other qualified ap-
plicant

Confirmation.

194

447

448

448

Under the proviso to section 7 of
the act of March 3, 1891, the filing
of a protest, bringing to the notice
of the government the invalidity or
illegality of an entry, within two
years from the date of the issuance
of the receiver's final receipt, oper-
ates to suspend the running of the
statute and will defeat confirmation
of the entry under said provision
whether the land department actu-
ally orders an investigation of the
matters charged in the protest with-
in the two-year period or not 172

GENERALLY.

The allegation in an affidavit of
contest that land" is more valuable
for the timber and stone," does not
by necessary implication charge that
the land is mineral in character and
does not constitute a sufficient basis
for a contest

INITIATION of.

Page.

115

An application to contest received
by mail will not be regarded as hav-
ing been presented or filed until it is
taken up, numbered, and entered of
record, and where a contest applica-
tion is presented in person and in the
ordinary course of business is ac-
cepted, numbered, and entered of
record, and another application to
contest the same entry is at that
time, unknown to the local officers,
in the unopened mail in the office,
priority will be accorded the appli-
cation first accepted and filed______ 712
DESERT LAND.

A contest based solely upon the
ground that the entry is invalid be-
cause the land embraced therein is
not of the character subject to such
entry, may be allowed, notwithstand-
ing the entry, at the date of the ini-
tiation of the contest, was embraced
in an order of suspension issued by
the land department.

361

In case of the suspension of an
entry by order of the land depart-
ment the entryman is not compelled
to comply with the law during the
period of suspension, and contest on
the ground of failure to comply with
the requirements of the law during
such period should not be allowed___ 362
Where contest against a suspended
entry, on the ground of failure to
comply with law, is erroneously al-
lowed by the local officers, and hear-
ing had thereon, the testimony ad-
duced at the hearing, having been
taken without jurisdiction, can not
be considered upon removal of the
suspension

A contest against a desert-land
entry, based solely upon the ground
that the land is non-desert in char-
acter, may properly be entertained
during suspension of the entry; but
a contest charging that the entry-
man has failed to comply with the
requirements of the law should not
be entertained during such period
where the suspension becomes effec-
tive prior to the expiration of the
statutory life of the entry-

362

456