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Circular of April 1, 1904, under act of
March 9, 1904, relative to affidavits, proofs,
and oaths made outside of land district.... 541
Alaskan Lands.
Circular of April 8, 1903, under act of
March 3, 1903, ralative to homestead entries. 90
Regulations concerning homesteads,
rights of way, timber, mission claims, etc.. 424
The right of way granted by section 2 of
the act of May 14, 1898, is "to any railroad
company, duly organized under the laws of
any State or Territory or by the Congress of
the United States," and an organization
seeking the benefits conferred by said sec-
tion which is not a railroad company
under the laws of the State wherein it was
created, is not a railroad company within
the meaning of that term as employed in
said section..
Tide lands and the lands reserved as a
public highway along the shore line of
Alaska are not a part of the public domain,
within the meaning of that term as used in
section 6 of the act of May 14, 1898, and the
Secretary of the Interior is without authority
to approve an application for a right of way
for a wagon road or tramway over such
lands and the construction of a pier or
wharf thereon.....
Allotment.
See Indian Lands.
Application.
No application will be received nor any
rights recognized as initiated by the tender
of an application for land embraced in an
entry of record until the cancellation of
said entry has been noted on the records of
the local office......
The affidavit required to be made by
homestead applicants amended so as to
state that since August 30, 1890, the appli-
cant has not acquired title to, and is not
now claiming under any of the agricultural
public land laws, an amount of land which,
together with the land applied for, will
exceed in the aggregate three hundred and
twenty acres
Approximation.
See Homestead, sub-title, Soldiers' Addi-
tional.
Instructions under act of June 17, 1902,
relative to reservation of lands for irrigation
works and withdrawal from disposition of
lands susceptible of irrigation....
Circular of March 31, 1904, relative to
withdrawal or lands under act of June 17,
1902..
Lands withdrawn from entry, except un-
der the homestead laws, in accordance with
the provisions of the act of June 17, 1902,
are not, during the continuance of such
withdrawal, subject to entry under the
desert-land laws..
Lands withdrawn from "settlement, en-
try, or other form of disposal under the pub-
lic land laws, except the homestead laws,"
in accordance with the provisions of the act
of June 17, 1902, are not, during the continu-
ance of such withdrawal, subject to disposal
under the coal-land laws, where no rights
thereto were initiated under such laws
prior to the order of withdrawal..
A withdrawal of lands under the provi-
sions of the act of June 17, 1902, will defeat a
prior application to purchase the same un-
der the timber and stone laws, where at the
date of withdrawal the applicant had ac-
quired no vested right to the lands em-
braced in his application....
By a successful contest against a desert-
land entry the contestant does not acquire
such a preference right of entry as will,
prior to its exercise, except the land from
the operation of a withdrawal for irrigation
purposes made under the provisions of the
act of June 17, 1902
A mineral location founded on actual
discovery of a valuable deposit of mineral
within the limits of the claim, and main-
tained in accordance with the mining laws
and local regulations applicable thereto,
excepts the land covered thereby from the
operation of a withdrawal for irrigation
purposes made under the provisions of the
act of June 17, 1902
Withdrawals made by the Secretary of
the Interior under authority of the act of
June 17, 1902, of lands which in his judg-
ment are required for irrigation works con-
templated under the provisions of said act,
have the force of legislative withdrawals
and are therefore effective to withdraw
from other disposition all lands within the
designated limits to which a right has not
vested
The Secretary of the Interior has no
authority, under existing legislation, to
permit the cutting of timber from the pub-
lic lands for use in the construction of irri-
gation works under the provisions of the
act of June 17, 1902 .....
The Secretary of the Interior has no
authority to permit the owner of lands that
are needed for a reservoir to be constructed
under the act of June 17, 1902, to select
other lands of the same area within the
district that may be made susceptible of
irrigation from the proposed reservoir, in
exchange for the lands so needed for reser-
voir purposes...
Under the provisions of the act of June 17,
1902, the Secretary of the Interior has full
authority to purchase any lands that may
be necessary for reservoir purposes, to ar-
range for the prices and terms of purchase,
and to allow the vendor to retain possession
until the land may be actually needed by
the government, where by so doing the
purchase may be more advantageously
made; but he has no authority under said
act to lease such purchased lands after the
government has taken possession thereof... 416
To entitle an applicant for the use of
water for lands held in private ownership
within the irrigable area of an irrigation
project under the act of June 17, 1902, to
the benefits of the act, he must hold the
title in good faith, and not for the purpose
of evading the provisions of the law, and
his occupancy must be bona fide and in his
own individual right.....
The phrase "including artesian wells," in
section two of the act of June 17, 1902, is
used to describe one class of irrigation
works to be located and constructed in
carrying out the scheme for reclaiming
arid lands provided for in said act, and it
is not contemplated by said section that
such wells may be sunk as a part of the
preliminary examinations authorized
therein...
In the prosecution of the work provided
for in said act it is not permissible to sink
an artesian well where it is believed that if
Page.
water is found it will not be suitable or
needed or used for irrigation purposes...... 278
Persons making homestead entry of lands
within the irrigable area of any project
commenced or contemplated under the
provisions of the act of June 17, 1902, will
be required to comply fully with the re-
quirements of the homestead law as to res-
idence, cultivation and improvement; and
failure to supply water from such works in
time for use upon the land entered will not
justify a failure to comply with the law and
to make proof thereof within the time re-
quired by the statute......
Under the reclamation act of June 17, 1902,
the Secretary of the Interior is empowered
to fix the limit of area for each homestead
entry under the same project according to
the quality and character of the land with
reference to its productive value; but all
entries must be of contiguous tracts and of
not less than forty nor more than one hun-
dred and sixty acres......
All entries under said act must be made
according to the ordinary legal subdivi-
sions, and the Secretary has no authority to
allow an entry for less than forty acres, nor
to subdivide a forty-acre tract for combina-
tion with other subdivisions
The Secretary may require that home-
stead entries under said act shall comprise
certain specified tracts, selected with refer-
ence to soil and water supply, whether the
areas of the entries are uniform or not..... 237
Until so authorized by Congress, neither
the Department nor the territorial govern-
ment of Arizona has the power to dedicate
for use in connection with an irrigation
project under the act of June 17, 1902, lands
in said Territory which, by section 2 of the
act of February 2, 1863, have been reserved,
for school purposes, to the future State to
be erected including the same............. 604
Canals and Ditches.
The preference right of entry accorded a
successful contestant is personal and can
not be assigned, or waived in favor of an-
other, and where, during the period al-
lowed 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
subject to entry by the first legal applicant. 466
By a successful contest against a desert-
land entry the contestant does not acquire
such a preference right of entry as will,
prior to its exercise, except the land from
the operation of a withdrawal for irrigation
purposes made under the provisions of the
act of June 17, 1902.
By contesting and procuring the cancel-
lation of a desert-land entry made under
the act of March 3, 1877, as amended by the
act of March 3, 1891, the contestant acquires
a preference right of entry.
Cultivation.
See Final Proof; Homestead.
Desert Land.
See Entry; Final Proof.
Ditches and Canals.
See Right of Way.
Entry.
by the land department is operative and
effective from the moment of its rendition;
but no application will be received nor
any rights recognized as initiated by the
tender of an application for the land
embraced in such entry until the cancella-
tion of the entry has been noted on the
records of the local office......
The cancellation of a commuted home-
stead entry upon a contest initiated subse-
quently to the submission of final proof,
after notice to the entryman, is conclusive
as to him, but is not conclusive upon his
grantee, if made without notice to such
grantee and with no opportunity on the
part of the grantee to be heard, and the
land department has jurisdiction, at any
time prior to the issuance of patent, to
hear and determine the rights of the
grantee, notwithstanding the termination
of the contest and the cancellation of the
entry, and upon proper application by the
grantee will order a hearing for such pur-
pose
By contesting and procuring the cancella-
tion of a desert-land entry made under the
act of March 3, 1877, as amended by the act
of March 3, 1891, the contestant acquires a
preference right of entry................
The assignment of a portion only of a
desert land entry will not be recognized by
the land department.
Circular of May 18, 1904, under act of April
19, 1904, relative to use of original papers on
file in General Land Office as evidence in
court proceedings...
The limitation in the act of August 30,
1890, as to the amount of land that may be
acquired by any one person under the
public land laws, applies only to the acqui-
sition of title, and not to the amount of
land that may be entered or filed upon
under such laws....
..... 646
No application will be received nor any
rights recognized as initiated by the tender
of an application for land embraced in an
entry of record until the cancellation of
said entry has been noted on the records of
the local office
So far as the rights of the entryman are
concerned, a final judgment of cancellation
Circular of April 7, 1904, relative to fees for
taking testimony, making transcripts, copies
of plats, etc..
In the administration of statutes permit-
ting the heirs of a deceased entryman to
prove up and receive final certificate and
patent under his claim, such certificate
and patent will issue in the name of the
deceased entryman in cases where the right
to patent accrues prior to his death, and in
the name of his heirs generally in cases
where the right to patent does not accrue
until after he has died, or where the entry-
man at the time of his death is not compe-
tent to take title, although the right thereto
may have been fully earned
Any effort made in good faith by a desert-
land entryman to produce crops of any
kind on the land, which demonstrates the
fact of reclamation, is cultivation within
the meaning of the fifth section of the act
of March 3, 1891.
A showing on the part of a desert-land
entryman that as a result of irrigation of
the land there is a marked increase in the
growth of the native grass thereon, suffi-
cient to support stock, is sufficient proof of
cultivation
Final proof under a desert-land entry,
which shows that because of irrigation
there is on the land "a marked increase in
the growth of grass," or that "grass suffi-
cient to support stock has been produced
on all the land," will not be accepted as
showing a compliance with the provision
of the act of March 3, 1891, "that proof be
further required of the cultivation of one-
eighth of the land'
In addition to proof of cultivation, it
must be clearly shown, in all cases, that the
entryman has an absolute right to sufficient
water to successfully irrigate the land; that
the system of ditches to conduct the water
to and distribute it over the land is ade-
quate for those purposes; and that the land
has been actually irrigated for a sufficient
period of time to demonstrate the suffi-
ciency of the water supply and the effect-
iveness of the system...
Homestead.
See Oklahoma Lands.
Circular of May 31, 1904, under act of
April 28, 1904, amending the homestead
laws as to certain lands in Nebraska....... 670
Circular of April 7, 1903, under act of
March 3, 1903, granting relief to certain
homestead settlers in Alabama
Circular of May 13, 1904, under act of
April 23, 1904, relating to void declarations
of intention to become citizens
The disqualification to make homestead
entry, imposed by section 2289 of the Re-
vised Statutes upon a person owning more
than one hundred and sixty acres of land,
extends to one who holds land under a con-
tract of purchase, though the payments
thereunder have not been completed....
The affidavit required to be made by
homestead applicants amended so as to
state that since August 30, 1890, the appli-
cant has not acquired title to, and is not
now claiming under any of the agricultural
public land laws, an amount of land which,
together with the land applied for, will
exceed in the aggregate three hundred and
twenty acres ................
A homestead entryman who by reason of
misinformation, and with no intent to
waive any part of his homestead right, en-
ters less than the one hundred and sixty
acres allowed by law, will be permitted,
where his entry has not yet been carried to
completion and no adverse rights have
intervened, to amend his entry so as to
include a quantity of adjacent unoccupied
public land, subject to such entry, which
added to the land already entered will not
exceed one hundred and sixty acres.....
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 .. 139
Service in the army of the United States,
within the contemplation of sections 201
and 2305, Revised Statutes, dates from the
muster-in of the soldier and continues until
terminated by his death, muster-out, or
other cause, regardless of the actual service
rendered
In the event the widow and immediate
heirs of a deceased homestead settler, who
has earned title to the land by compliance
with law, die without having availed them
selves of the right to perfect the settler's
claim under the provisions of section 2291
of the Revised Statutes, such right does not
lapse or become forfeited, but passes to the
next of kin of the decedent, who are his
"heirs" within the meaning of said sec-
tion......
Upon the death of a homestead entryman
the right to the entry goes to his widow, or
in case of her death to his heirs or devisee,
free from defect on account of any default
on the part of the entryman in the matter
of residence or otherwise, and the widow,
heirs, or devisee, as the case may be, may
complete the entry by either residing on
the land or cultivating the same for the re-
quired period, but need not do both...............
The provisions of the act of May 27, 1902,
authorizing the sale and conveyance of
inherited Indian lands by the heirs of a de-
ceased allottee, apply to the heirs of all
Indian claimants for portions of the public
lands, to whom a trust or other patent con-.
taining restrictions upon alieniation have
been issued, whether the claim was ini-
tiated under what are known as Indian
homestead laws or under Indian allotment
laws
Until the issuance of final patent on an
Indian homestead entry under the act of
July 4, 1884, the land department retains
jurisdiction over the land embraced therein
and is bound to protect the rights of the
homesteader..
No preference right of entry is acquired
by filing a contest and procuring the can-
cellation of an Indian homestead entry made
under the act of July 4, 1884..
The relinquishment of an Indian home-
stead entry made under the act of July 4,
1884, does not become effective until ap-
proved by the Department...
Under the reclamation act of June 17,
1902, the Secretary of the Interior is em-
powered to fix the limit of area for each
homesteam entry under the same project
according to the quality and character of
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The Secretary may require that home-
stead entries under said act shall comprise
certain specified tracts, selected with refer-
ence to soil and water supply, whether the
areas of the entries are uniform or not..... 237
Persons making homestead entry of lands
within the irrigable area of any project
commenced or contemplated under the pro-
visions of the act of June 17, 1902, will be
required to comply fully with the require-
ments of the homestead law as to residence,
cultivation and improvement; and failure
to supply water from such works in time
for use upon the land entered will not jus-
tify a failure to comply with the law and to
make proof thereof within the time required
by the statute
Where persons claiming to be the heirs of
a settler under the homestead laws, who
died while actually engaged in the military
service of the United States during the
Philippine insurrection, make final proof
on his claim in accordance with the provi-
sions of section 2305, Revised Statutes, as
amended by the act of March 1, 1901, the
final certificate and patent will follow the
language of the statute and issue to the
"legal representatives" of the deceased
entryman
SECOND AND ADDITIONAL.
Circular of May 20, 1904, under act of
April 28, 1904, relating to second and addi-
tional entries..
The right to make a second homestead
entry, granted by the act of June 5, 1900,
applies only in cases where the entryman
had lost or forfeited his claim prior to the
passage of said act; and one who has lost
his claim by laches subsequent to the date
of the act is not within its benefits.
A homesteader who in fact abandoned
his entry and in good faith executed a re-
linquishment thereof prior to June 5, 1900, is
entitled, under the provisions of the act of
that date, to make a second entry, although
his relinquishment was not filed until sub-
sequently to the passage of said act ........ 561
The act of May 22, 1902, does not enlarge
the scope of the act of March 2, 1889, so as
to allow an additional entry under that
act for a greater amount of land than there-
in specified, but gives a new and independ-
ent right to make a homestead entry, for
not exceeding one hundred and sixty acres,
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The act of May 22, 1902, conferred a new
and independent right of homestead entry
upon every person who, prior to the passage
of the act of May 17, 1900, had perfected a
homestead entry and acquired title to the
land by payment of the price provided in
the law opening the land to settlement;
and this right is in no wise affected by the
fact that the perfected entry was for less
than 160 acres and that an additional entry
was subsequently made, under the sixth
section of the act of March 2, 1889, and not
carried to completion until after the passage
of said act of May 22, 1902...
SOLDIERS' ADDITIONAL.
To entitle a soldier to the benefit of sec-
tions 2304 and 2306 of the Revised Statutes,
it is necessary that he should have served
in the army of the United States for at least
ninety days from the date of his muster into
the service
To entitle one, otherwise qualified, to
make an additional homestead entry under
section 2306 of the Revised Statutes, he must
not only have made entry for less than one
hundred and sixty acres prior to the enact-
ment of that section, but must have thereby,
under existing laws, exhausted his home-
stead right..
The right to make soldiers' additional
homestead entry is limited to such an
amount of land as added to the amount pre-
viously entered shall not exceed one hun-
dred and sixty acres, even though the en-
tryman may have paid cash for a portion of
the original entry as excess land....
644
In computing the period of service of a
soldier "who has served in the army of the
United States," within the meaning of that
phrase as used in section 2304 of the Revised
Statutes, the entrance of the soldier into the
army will be considered as dating from his
muster into the service, and not from his
enrollment...
A homestead entry made subsequent to
the approval of section 2306 of the Re-
vised Statutes, as the result of a contest
against a former entry covering the same
land initiated prior to the approval of said
section, though not carried to a successful
termination until subsequent thereto, does
not constitute a sufficient basis for an addi-
tional entry under said section.......
The fact that a certificate of soldiers' ad-
ditional right, issued under section 2306 of
the Revised Statutes, has been outstanding
for a period of twenty-five years, during
which time it has never been located or
presented for recertification is not sufficient
ground for the presumption that the same
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