On the ground that the decision is against
the weight of evidence, only allowed where
such decision is clearly against the palpa-
ble preponderance of the evidence.......248, 331
Not granted on newly discovered evi-
dence which goes only to impeach the credit
or character of a witness.
On motion for, the Department may ex-
amine any material question which it ap-
pears from the record was not considered
in the original decision....
Decision denying a writ of certiorari not
subject to....
Application for, before the tribunal ren-
dering the decision, should be made when
new matter is relied upon to set aside such
decision......
Motions for second consideration should
not be allowed.
Not a proper ground for re-review that the
decision on review was prepared by the
writer of the original decision......
Land "settled and improved" by a pre-
omptor only becomes "subject to the entry
of any other purchaser" where it was open
to private entry at date of settlement...... 346
Heirs of a deceased pre-emptor entitled to
be heard as against an adverse claimant.... 405
An intervening settlement right, set up to
defeat a pre-emptor in default as to proof
and payment within the statutory period,
must be based on substantial acts of im-
provement.
Claim may be transmuted to homestead
under act of March 2, 1889, if initiated prior
to said act, though the pre-emptor may have
perfected a homestead entry
Private Claim.
Sec Jurisdiction, Survey.
The mistaken classification of a claim in
the report of the register and receiver as
among those already confirmed by law will
not bring it within the confirmatory pro-
visions of the act of May 11, 1820.
There is no authority for the issuance of
scrip under section 3, act of June 2, 1858, if
the basis had not been confirmed by Con-
gress...
Indemnity under section 3, act of June 2,
1858, will only issue to the owner of the
claim to which title has failed, and if the ap.
plicant has parted with a portion of the land
alleged as a basis, he can only receive in-
demnity for the part yet owned............ 463
Private Entry.
Public lands withdrawn from, by act of
March 2, 1889. (Circular of March 8, 1889.). 314
Lands which have been reduced in price
The claim for which indemnity is sought
under section 3, act of June 2, 1858, must be
shown to have been confirmed by Congress,
and not located or satisfied in whole or in
part......
If a claim depends for confirmation upon
section 3 of the act of March 3, 1819, the con-
firmee or his legal representative must iden-
tify the land.
Not permissible for lands affected by the
repeal of section 2303, R. S., until after offer-
ing.....
Made in good faith, of land included within
an indemnity withdrawal, may be referred
to the Board of Equitable Adjudication,
where the withdrawal is subsequently re-
voked and no adverse claim exists
Allowed for land included within a prior
swamp land claim, should be suspended,
with the right to show that the land did not
pass under the swamp grant. If such fact
is shown the entry should be sent to the
Board of Equitable Adjudication.......
Though illegally allowed is, while of rec-
ord, an appropriation of the land........... 514
The grant to the Northern Pacific ex-
pressly limits the increase in price to the
"reserved alternate sections," and such in-
crease does not, therefore, extend to odd-
numbered sections excepted from the grant. 58
Price of, within forfeited railroad grants,
and lands excepted from such grants, re-
duced to single minimum by the act of
March 2, 1889. (Circular of March 8, 1889.) 314
Covered by the settlement of a pre-emptor
prior to the filing of the map of general
route (Northern Pacific) is not enhanced in
price as against the settler....
All lands subject to entry within the lim
its of the Texas Pacific grant were double
minimum in price from the date of with-
drawal on general route to the passage of
the act of March 2, 1889......
Authority of the Commissioner to order
into market isolated tracts of unoffered
land not abridged by the act of July 15, 1870. 421
See Alienation, Final Proof, Homestead
(act of June 15, 1880), States and Territories.
See Final Proof, Railroad Lands, Right of Way.
Land granted does not revert after condi-
tion broken until a forfeiture thereof has
been declared either through judicial pro- 589
ceedings or legislative enactment...
The deduction required from the lands
granted by the act of July 27, 1866, in so far
as the road located thereunder was upon
the same line as that provided for in the
grant of 1852, should be made from the ag
gregate amount of the later grant..
The odd sections within the primary limits
of the grant of June 10, 1852, excepted there-
from, but withdrawn under said grant, hav-
ing been "offered" after the adjustment
thereof, and before the grant of July 27,
1866, were not reserved from the operation
of the latter...........
The provision in section 2, act of March
3, 1863, with respect to settlement rights
"on any of the reserved sections," refers to
the even numbered sections, not granted.. 570
The number of roads provided for in the
grant of June 3, 1856 (Alabama), considered. 33
The grant to Minnesota in aid of a road
"from Stillwater, with a branch via St.
Cloud and Crow Wing," is in effect an en-
tirety and indivisible (St. Paul, Minneapo
lis and Manitoba Railway)...
Under section 2, act of February 8, 1887,
lands occupied by actual settlers at definite
location of the road (New Orleans, Baton
Rouge and Vicksburg), and still remaining
in their possession are excepted from the
grant
The New Orleans, Baton Rouge and
Vicksburg Company, its mortgagees or
bond holders, have no standing in the De-
partment to object to the issuance of patents
to the New Orleans and Pacific, if the latter
company has complied with the act of 1887. 25
The grant to the New Orleans and Pacific
took effect when the Secretary of the In
terior was notified that the company had
accepted the provisions of February 8, 1887,
and attendant obligations..
Settlement claims protected under the act
of February 8, 1887, will not be affected by
the fact that the land was included within
a grant to another company where such grant
was subsequently forfeited.....
Selections not authorized on relinquish-
ment of indemnity lands to which the right
of the company had not attached
ACT OF APRIL 21, 1876.
A pre-emption claim initiated before no-
tice of withdrawal on general route was re-
ceived, excepts the land from such with-
drawal
ACT OF MARCH 3, 1887.
Circular instructions of February 13, 1889. 348
The act is remedial and should be con.
strued liberally in favor of the bona fide set-
tler
In order to sustain a suit under said act it
is necessary to show that the land has been
erroneously certified or patented under the
grant
If part of an entry has been erroneously
canceled on account of a railroad grant, it
should, under this act, be re-instated, and
patent issued thereon if the settler has
shown due compliance with law
It is the duty of the Secretary of the In-
terior to re-adjudicato cases whenever it ap.
pears that the pre-emption or homestead
entry of a bona fide settler has been errone-
ously canceled on account of a railroad.
grant
...318, 382
Plea of res judicata can not be interposed
to relieve the company from proceedings
under the act
A judicial decree awarding possession to
a purchaser from the company will not pre-
vent the Department from taking jurisdic-
tion under said act...............
The right to re-instatement conferred
upon the settler is superior to that of a bona
fide purchaser from the company
Section 3 of said act authorizes re-adjudi-
cation where an application to file or enter
has been erroneously rejected by the local
office.....
The act entitles a settler to perfect a
homestead entry for the entire tract origi-
nally applied for notwithstanding the issu
ance of patent to him under the homestead
law for a part of said tract.
May not be selected within the granted
limits of another road, though such road
was not constructed within the period fixed
by the statute, but was definitely located,
and the grant therefor remains unforfeited. 33
Expired filing of record does not bar se-
lection of the land, unless it be shown that
the pre-emptor had not in fact abandoned
the land (St. Paul, Minneapolis and Mani-
toba Railway)....
On application to select land covered by
an expired filing, a hearing should be had
to determine the status of the land (St.
Paul, Minneapolis and Manitoba Rail-
way).
Withdrawals for the Memphis and Little
Rock Company and the Madison and Por
tage Company revoked
An unexpired filing of record at date of
definite location excepts the land covered
thereby from the grant (Northern Pacific). 380
Under the grant to the St. Paul, Minne-
apolis and Manitoba Company, the exist
ence of a filing, when the grant became ef-
fective, will raise a presumption of right,
which, in the absence of proof to the con-
trary, is conclusive as against the grant.... 380
The existence of homestead and settle-
ment rights at the date of the attachment
of the grant excepts the land therefrom.... 58
A claim resting on settlement, residence,
and improvement, existing when the grant
becomes effective, excepts the land covered
thereby from the operation of the grant.520, 542
Does not take effect upon land within a
prima facie valid homestead entry......... 378
Page.
Land not free from "pre-emption or other
claims or rights "does not pass, and the
validity of such claims is not material
(Northern Pacific.)
A claim resting on settlement, residence,
and improvement, existing when the grant
becomes effective is within the excepting
phrase "occupied by homestead settlers"
(Northern Pacific.)....
Land within the subsisting granted limits
of the Atlantic and Pacific, when the map
of the designated route of the Southern
Pacific was filed, is excepted from the grant
to the latter company...
Procedure on revocation of indemnity
withdrawal..
Under the order revoking its indemaity
withdrawal, the "right of the company to
make selection" should be determined by
the land office, in cases of unapproved selec-
tions covered by applications to file or
enter.....
An executive withdrawal should be given
effect only to the extent intended by the
Department......
The revocation of an indemnity withdraw.
al takes effect as soon as issued, and a set-
tlement on land within such withdrawal,
existing at the date of revocation, will be
protected as against a subsequent selec-
tion......
The company will not be heard to object
to a settlement claim within its indemnity
limits, after revocation of the withdrawal
and in the absence of a selection......
A settlement within an indemnity with-
drawal is unavailing as against the com-
pany's right of selection....
Entry allowed, under an existing prac-
tice, for land within an indemnity with-
drawal is not illegal, though subject to the
rights of the company.
Filed after the beginning of a contest can
not defeat the right of the contestant...... 357
Does not inure to the benefit of a contest-
ant unless it be found that it was the result
of the contest..
Will not be allowed of money deposited
with the receiver as agent of the applicant. 77
Can not be allowed of money deposited to
cover the cost of office work on the survey
of a mineral claim, though the deposit is not
expended.....
... 102
An entry allowed by the local office on
testimony afterwards rejected as insufficient
by the General Land Office and the Depart-
ment, is an entry "erroneously allowed"
for which repayment may be accorded in
the absence of bad faith....
Desert land entry allowed on insufficient
evidence of reclamation, is an entry "erron-
eously allowed," and if subsequently relin-
quished on account of inability to show re-
clamation, repayment may be allowed in the
absence of bad faith....
Disposition of abandoned military, not af-
fected by the act of March 2, 1889. (Act of
that date and circular thereunder)
See Final Proof, Settlement.
Leave of absence permissible under the
act of March 2, 1889. (Circular of March 8,
1889)
Temporary absences may be properly ex-
cused if the good faith of the settler is ap-
parent....
Acquired where presence upon the land
is with the intent to make it a permanent
home to the exclusion of one elsewhere
Temporary absences for the purpose of
earning a livelihood do not authorize a pre-
sumption of abandonment .....
After the establishment of, absences
caused by sickness may be excused.................... 353
Inhabitancy not impeached by temporary
absences to secure means for the improve-
ment and purchase of the land.....
Credit for, from the time it actually be-
gan may be allowed to one who procures the
cancellation of a prior entry covering the
land...
May be allowed in case of graduation en-
try erroneously allowed for land that passed
under the swamp grant
May be allowed where commutation
proof, made in good faith, is found insuffi-
cient in the matter of residence, and the
entryman not being able to show further
compliance, relinquishes his claim to the
land
..... 162, 423
Not incumbent upon a settler who has
been wrongfully ejected from his land to
make a new settlement on that part of the
claim not in dispute, pending judicial pro-
ceedings to recover possession.... ... 593
Of a married man held to be where his
family resides, in the absence of proof to
the contrary
....615, 629
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