Lands formerly embraced within
the Fort Assinniboine military reser-
vation, and opened to entry by the
act of April 18, 1896, are subject to
selection in lieu of lands within a
forest reserve relinquished to the
United States under the exchange
provisions of the act of June 4, 1897 296

The provision in the act of July 4,
1884, that the lands in the former
Columbia Indian reservation by said
act restored to the public domain
should be disposed of “to actual set-
tlers under the homestead laws
only," is no bar to the selection of
portions of said lands in lieu of an
unperfected claim to lands in a for-
est reserve, based upon homestead
settlement, and relinquished under
the exchange provisions of the act of
June 4, 1897.

The provision of the act of June 6,
1900, which declares that subse-
quently to October 1, 1900, "all se-
lections of land made in lieu of a
tract covered by an unperfected
bona fide claim, or by a patent, in-
cluded within a public forest reser-
vation,
shall be confined to
vacant surveyed non-mineral public
lands which are subject to homestead
entry," applies only to selections
made under the provisions of the act
of June 4, 1897, and has no appli-
cation to selections made by the
Northern Pacific Railway Company
under the provisions of the act of
March 2, 1899

Where at the date of the act of
March 3, 1905, repealing the ex-
change provisions of the act of June
4, 1897, no selection had been made
in lieu of lands within a forest re-

serve relinquished to the United
States in accordance with the provi-
sions of the act of 1897, the land
department is without authority to
now permit such selection to be
made

In case a selection under the ex-
change provisions of the act of June
4, 1897, is canceled for conflict with
a prior settlement claim, and another
selection for a like quantity of land
is made in lieu thereof, under the
proviso to the act of March 3, 1905,

127

88

458

Page.

the abstract of title of the relin-
quished land assigned as a basis
for the selection must be extended to
the date of the later application.........- 564
A selection under the provisions of
the act of June 4, 1897, for a less
area than embraced in the relin-
quished land offered as a base, not
the result of mischance or misprision
on the part of the local officers, is a
waiver of the excess; and there is
nothing in the act of March 3, 1905,
repealing the act of June 4, 1897,
authorizing the selector to make a
further selection based upon such

excess area.

Where prior to the repeal of the
exchange provisions of the act of
June 4, 1897, by the act of March 3,
1905, selection was made and ap-
proved for unsurveyed lands de-
scribed in terms of legal subdivisions
of the public surveys, and upon sur-
vey some of the subdivisions were
shown to be fractional and to con-
tain a less area than contemplated
by the selection, the selector may,
under the saving provisions of the
act of March 3, 1905, make addi-
tional selection to cover such de-
ficiency

Reservoir Lands.

See Arid Land; Right of Way.

Residence.

The fact that a homestead entry-
man holds an official position the
duties of which are required to be
performed at some place other than
on the land embraced in his entry,
constitutes no sufficient excuse for
his absence from the claim, unless it
be shown that his absence is actually
due to his official position or employ-
ment__

A homestead entryman is entitled
to the exclusive possession and en-
joyment of the land embraced in
his entry, and where he in good faith
builds a house upon the land with a
view to establishing residence and
complying with the law, but is pre-
vented by the threats of a rival
claimant from establishing residence
upon the particular portion of the
land selected by him for that pur-
pose, it is not incumbent upon him
to establish his residence upon an-
other portion of the land, and he will
not be held in default for failure to
do so

Failure of a homestead entryman
to reside upon his claim, necessitated
by employment in the public service,

578

603

30

348

tions for use of name of United
States in judicial proceedings to for-
feit rights of way.

Circular of July 7, 1905, under
act of February 7, 1905, relating to
rights of way over lands segregated
from Yosemite National Park and
included in Sierra forest reserve ____
Regulations of September 28, 1905,
relative to rights of way for canals,
ditches, reservoirs, telegraph and
telephone lines, etc.-

Paragraph 2 of circular of Febru
ary 11, 1904, and paragraphs 3 and
66 of the circular of September 28,
1905, relating to rights of way for
railroads, canals, reservoirs, etc.,
amended.

Paragraph 54 of the regulations
of September 28, 1905, requiring that
all applications for rights of way
under the act of February 15, 1901,
for telegraph and telephone lines,
must be accompanied by an official
statement of the Post Office Depart-
ment showing that the applicant has
complied with the regulations under
title 65 of the Revised Statutes, re-
voked

Page.

Directions given that all appli-
cations for rights of way or other
privileges over or upon public lands
in forest reserves, now pending be-
fore the General Land Office and
falling wholly within the jurisdiction
of the Department of Agriculture,
as defined in departmental letter of
June 8, 1905 (concurred in by the
Secretary of Agriculture in letter
of June 13, 1905), be transmitted
to the Department of Agriculture
for consideration and disposition___

Where applications for rights of
way or other privileges affect lands
lying partly within and partly with-
out forest reserves, and involve
questions within the jurisdiction of
the Department of Agriculture and
also questions within the jurisdiction

5194 Vol. 34-05 M-48

396

358

15

212

583

693

64

of

the land department, separate
applications will not be required, but
in such cases the application will be
examined, and, if found regular, ap-
proved by the land department in so
far as it affects lands without the re-
serve, and then transmitted to the
Department of Agriculture for con-
sideration and such action as may
be proper relative to the lands with-
in the reserve; but in the event it
appear that the right to use lands
without the reserve is subordinate to
permission to use lands within the
reserve, the application should first
be passed upon by the Secretary of
Agriculture

No rights can be initiated for the
use or benefit of any railroad com-
pany under the provisions of section
1 of the act of March 3, 1875, prior
to the organization of such com-
pany under the laws of a State or
Territory

The grant of sections sixteen and
thirty-six made to the Territory of
New Mexico for school purposes by
the act of June 21, 1898, is a grant
in praesenti, and any question as to
the authority of the Territory to
grant rights of way for railroads
across any such lands is one for de-
termination by the officers of the
Territory and not by the Secretary
of the Interior__

The right of way granted by sec-
tion 13 of the act of February 28,
1902, is a mere easement, for “depot
grounds, terminals, and other rail-
way purposes," and the grantee has
no authority to extract oil from the
grounds embraced in a right of way
acquired under said act..

The act of March 3, 1901, specific-
ally provides that telephone and
telegraph lines constructed under its
provisions shall be operated and
maintained under rules and regula-
tions to be prescribed by the Secre-
tary of the Interior, which carries
with it the power to require sworn
statements from the person, com-
pany, or corporation operating the
lines, to the end that the annual tax
be properly assessed and collected;
but in the event of noncompliance
with such requirement, it is not with-
in the power of the Secretary, under
executive authority, to close the
places of business of the offending
parties, any question as to the for-
feiture of the right of way being a
matter for determination by the

courts

Page.

64

593

548

501

283

Page.

The annual tax upon telephone and
telegraph lines referred to in section
3 of the act of March 3, 1901, is con-
ditioned upon two things: (1) The
line upon which the tax is sought to
be imposed must be upon lands such
as the Secretary of the Interior is
authorized to subject to the terms of
the act, and (2) the line must not be
subject to State or Territorial taxa-
tion. Where the line upon which the
tax is sought to be imposed runs
through any of the lands which the
Secretary is authorized to subject
to the terms of the act, and is not
subject to State or Territorial taxa-
tion, such line is under the act sub-
ject to an annual tax not exceeding
five dollars for each ten miles there-
of constructed and maintained, re-
gardless of any tax which may be
levied and collected by a munici-
pality through which the line runs 288
Rights of way under the provisions
of section 3 of the act of March 3,
1901, are" in the nature of an ease-
ment," and are property rights sub-
ject to sale or transfer without the
consent of the Secretary of the In-
terior

The term line," as employed in
section 3 of the act of March 3, 1901,
means the right of way granted, and
each separate line of poles is held to
constitute an independent line, upon
which the grantee may place as many
wires as he chooses, the tax to be
assessed against the property only
at the rate of five dollars for each ten
miles of line. In towns, where no
well-defined system of parallel wires
is maintained, each wire will be re-
garded as covering a separate right
of way, and, if otherwise within the
terms of the act, is subject to tax-
ation as such__

The approval by the Secretary of
the Interior of the plats of incor-
porated cities and towns in the In-
dian Territory operates as a dedica-
tion of the streets and alleys thereof
to public use, and thereafter, the In-
dians no longer having any interest
in the ground embraced in such
streets and alleys, the Secretary of
the Interior has no authority to sub-
ject them to the terms of section 3
of the act of March 3, 1901, author-
izing him, among other things, to
grant rights of way for the construc-
tion of telephone and telegraph lines
within and through incorporated
cities and towns in the Indian Ter-
ritory

258

288

679

Riparian Rights.

Page.

Upon the admission of a State into
the Union it acquires in its sovereign
capacity the right to all the soil
under navigable rivers, subject to the
power of Congress to regulate com-
merce among the States and with for-
eign nations, and all lands that may
afterward form upon the beds of
such streams become the property of
the sovereign State, or of the pro-
prietor of the shore lands, in virtue
of his riparian right, according to the
law of the State in which the land is
situated

School Land.

GENERALLY.

Sections sixteen, thirty-six, thir-
teen and thirty-three of the lands
ceded by the Comanche, Kiowa and
Apache Indians under
agreement

ratified by the act of June 6, 1900,
reserved for school and other pur-
poses, are not subject to the opera-
tion of the mining laws__.

The grant of sections sixteen and
thirty-six made to the Territory of
New Mexico for school purposes by
the act of June 21, 1898, is a grant
in praesenti, and any question as to
the authority of the Territory to
grant rights of way for railroads
across any such lands is one for de-
termination by the officers of the
Territory and not by the Secretary
of the Interior__

The grant of sections sixteen and
thirty-six made to the State of South
Dakota for school purposes by the
act of February 22, 1889, took effect
on the admission of the State into
the Union, as to lands at that date
identified by the government survey,
but as to such of the indicated sec-
tions as had not been surveyed at
the date of the admission of the
State, the right of the State does not
attach unless and until identified by
survey, and if at the time of survey
they are known to be mineral in
character, they are excepted from
the grant‒‒‒

The grant of sections sixteen and
thirty-six, to the State of South Da-
kota for school purposes, by the act
of February 22, 1889, took effect on
the admission of the State into the
Union as to lands of the class and
character subject to the grant in
such of said sections as were at that
date identified by the government

423

54

548

485

surveys. As to unsurveyed lands,
the grant does not attach until
identification by approved survey,
and if at that time any of the lands
embraced in such sections are known
to be mineral in character they are
excepted from the grant_-_.
INDEMNITY.

Regulations of January 10, 1906,
relative to school indemnity selec-
tions

The requirement in rule 2 of the
instructions of March 6, 1903, that
with each list of indemnity school
selections "a certificate of the
proper authorities that the base
lands have not been sold, encum-
bered, or otherwise disposed of,"
shall be furnished by the State, ad-
hered to‒‒‒‒

Pending the disposition of a
school land indemnity selection, even
though erroneously received, no other
application including any portion of
the land embraced in such selection

should be accepted, nor will any
rights be considered as initiated by
the tender of any such application__

Page.

In the adjustment of school land
grants, it is within the power, and is
the duty, of the land department to
see that sufficient losses, or quanti-
ties of land to which the State
might have been entitled under its
grant had they been in place and not
otherwise disposed of, equal in
amount to previous certifications on
account of the grant, approximately,
are furnished as a base for such pre-
vious approvals or certifications, be-
fore other approvals and certifica-
tions are made on account of the
grant

There is nothing in the act of
March 1, 1877, relating to indemnity
school land selections in the State
of California, in conflict with this
requirement

Where a school section is em-
braced within the limits of an In-
dian reservation, the State may, un-
der the provisions of section 2275 of
the Revised Statutes, as amended by
the act of February 28, 1891, waive
its right thereto and select other
land in lieu thereof, nothwithstand-
ing such section was identified by
survey prior to the establishment
of the reservation

Under the grant of sections six-
teen and thirty-six made to the
State of South Dakota for school pur-
poses by the act of February 22,
1889, the State takes no vested in-

717

365

245

12

270

270

613

Page.

terest or title to any particular land
until it is identified by survey, and
prior to such identification the grant,
as to any particular tract, may be
wholly defeated by settlement, the
State's only remedy in such case be-
ing under the indemnity provisions of
said act and of the act of February
28, 1891, amending sections 2275
and 2276 of the Revised Statutes___ 657
Where the title to school sections
has vested in the Territory of New
Mexico under the grant made by the
act of June 21, 1898, and such sec-
tions are subsequently embraced
within a reservation created by exec-
utive order, the Territory may, under
the provisions of section 2275 of
the Revised Statutes, as amended by
the act of February 28, 1891, waive
its right thereto and select other
lands in lieu thereof.

The act of February 28, 1891,
amending section 2275 of the Re-
vised Statutes, protects all rights ac-
quired by settlements made prior to
survey in the field upon sections six-
teen or thirty-six, reserved for
school purposes, but where a town-
ship is ordered surveyed on applica-
tion in behalf of the State, under
the act of August 18, 1894, and the
lands are withdrawn for the purposes
specified therein, such settlements
only as were made prior to the with-
drawal are protected as against the
State

Where at the time of survey of a
township a portion thereof was re-
turned as a salt lake now dry,"
and no further survey of the town-
ship has since been made, the State,
after a lapse of more than forty
years, is justified in accepting such
survey as a final and complete sur-
vey of the township and in proceed-
ing with the adjustment of its school
land grant upon the theory that the
township is fractional

Where public lands of the United
States are in good faith purchased
from a State in the belief that the
State has acquired title thereto un-
der its school grant, and in faith of
such purchase are held and occupied
for many years, entry thereof by a
third party should not be allowed
without first affording the State an
opportunity to make good the title
purported to be conveyed by it, by
assigning a proper and sufficient
basis and making selection of the
land under its school grant; and in
case of failure on the part of the
State to make the title good, the

599

434

716

As between rival applicants for
the same land, the prior settler
must maintain his prior right by
continued compliance with the law. 298
No rights can be acquired by acts
of settlement as against an entry-
man claiming under a prior record
entry, but as between subsequent
claimants the prior actual settler is
entitled to precedence upon the can-
cellation of the entry or extinguish-
ment of the record title____

The rule that settlement rights
can not be acquired by the tenant or
employe of another which can be
set up to defeat intervening rights,
is not applicable in all cases where
the relation of landlord and tenant
is established, and should never be
extended to cases where the rela-
tion of tenant was assumed merely
for the purpose of protecting settle-
ment rights and in furtherance of a
bona fide intention on the part of a
settler to assert his rights at the
first opportunity --.

Settlement upon lands in advance
of the hour of opening, in violation
of an order of the land department
prohibiting such settlement, confers
no rights upon the settler as against
the first legal applicant to enter the
land after the hour of opening, and
such settler can not, by virtue of
his mere presence upon and occu-
pancy of the land after the hour of
opening, with the improvements
made prior to that time, secure a
settlement right----

Notice of a settlement claim,
posted conspicuously on the land,
is sufficient to protect the claim
against one who subsequently makes
application for a portion thereof
under the timber and stone act,
whether the timber-land applicant has
actual notice of the settlement claim
or not, provided the posted notice
was of such character that it might
have been seen by a reasonable exer-
cise of diligence..

Notice of a settlement claim,
posted on a subdivision thereof out-

257

257

524

90

side of the technical quarter-section
on which the improvements are lo-
cated, will protect the settler's
claim to such subdivision as against
the claim of one who subsequently
makes application therefor under the
timber and stone act----

One who fails to assert any claim
to a tract of public land in the ad-
verse possession of another, and re-
mains silent, though knowing that
the adverse occupant continues to
claim, occupy, and improve the land,
is estopped thereby from subse-
quently asserting a prior settlement
right thereto in himself, notwith-
standing the tract is found upon
survey to be a part of the technical
quarter-section upon which his im-
provements are located___.

Special Agent.

Circular of February 14, 1906,
relative to manner of proceeding on
special agents' reports

States and Territories.

See School Land; Swamp Land.
Failure on the part of a State to
publish notice of an application for
the survey of lands within thirty
days from the date of such applica-
tion, as provided by the act of Au-
gust 18, 1894, does not affect its
preference right to select such lands.
for the period of sixty days from
the filing of the township plat of
survey. conferred by the act of
March 3, 1893_.

Page.

The provision in the act of March
3, 1893, according to certain States
a preference right, over all persons
or corporations, except prior settlers,
for a period of sixty days from the
filing of the township plat of survey.
within which to select lands under
grants made by the act of February
22, 1889, was not repealed by the
provisions of the act of August 18,
1894. according a similar right of
selection for a period to extend
from the date of application by the
State for the survey of the lands un-
til the expiration of sixty days from
the date of the filing of the town-
ship plat, provided notice of the ap-
plication for survey be published
within thirty days from the date of
the filing of such application______ 139
The preference right, for a period
of sixty days from the filing of the
township plat of survey, accorded
the State (Idaho) by the act of
March 3, 1893. within which to
make selection of lands under grants