The act of 1897, in providing for an ex-
change of lands within forest reservations
for public lands outside of said reservations
does not authorize the relinquishment of
mineral lands as a basis for lieu selections. 328
Land acquired under a grant made to a
State, or railroad company, by act of Con-
gress is a proper basis for lien selections
under the act of 1897, provided that the full
legal title thereto has passed out of the gov-
ernment, and beyond the control of the Land
Department by a patent, or some means the
full legal equivalent thereof.....................
The removal of timber, in pursuance of a
lawful right, from land acquired under stat-
utory authority, does not deprive the owner
of said land or the government from receiv
ing the benefit incident to an exchange of
lands as provided for in said act of 1897.... 328
The right of relinquishment under act of
1897 is not limited to claims initiated or
titles acquired under laws that require per-
sonal settlement and residence on the land,
but includes any tract covered by any un-
perfected bona fide claim under any of the
general land laws (other than the mining
laws), or to which the full legal title has
passed out of the government, and beyond
the control of the Land Department, by any
means which is the full legal equivalent of
a patent.....
In an exchange of lands under the act of
1897, where title to the land relinquished
has passed out of the government, or where
certificate for patent thereto has issued, the
selection may embrace contiguous or non-
contiguous tracts, if in the same land dis-
trict; but if the land relinquished is cov-
ered by an unperfected claim, to which cer-
tificate for patent has not issued, and the
law under which said claim was initiated
requires that land taken thereunder must
be in one body, the same requirement must
be observed in making the lieu selection... 291
Unsurveyed as well as surveyed land,
which is vacant and open to settlement may
be selected under the act of 1897 in exchange
for forest lands.....
The act of 1897 provides for the control
and administration of all public lands set
apart as forest reserves by the President,
under section 24 act of March 3, 1891, but
makes no grant of right of way through
these reservations, and does not give the
Secretary of the Interior any new or addi-
tional authority to permit the use of a right
of way through them or within their bound-
aries, and is not applicable to reservations
created by special act of Congress........
Reservoir.
Reservoir Site.
A mineral entry based on a location made
after the withdrawal of the land for a, under
the act of October 2, 1888, confers no right;
but such entry may be suspended, and if it
subsequently appears that the land is not
required for reservoir purposes, the entry
may then pass to patent.......
Under the act of March 3, 1891, the Secre-
tary of the Interior has authority to release
from reservation any portion of the lands
selected for a, under the act of October 2,
1888, and the acts amendatory thereof, if it is
made to appear that such land is not actu-
ally necessary for the purpose for which said
reservation was made.
Priority of settlement will not avail an
applicant as against adverse claimants if he
fails to maintain a bona fide, on the land... 169
One who alleges priority of settlement, as
against an adverse applicant for the right
of entry, must comply with the law in the
matter of settlement and maintenance of,
during the pendency of such controversy.. 266
During the pendency of a contest, in
which each party alleges priority of settle-
ment, both are bound to comply with the
law and maintain, upon the land................
A homesteader who makes entry subject
to a prior adverse soldier's declaratory state-
ment of record, is not excused, on account
of the existing adverse claim under the
soldier's filing, from establishing, within
six months from date of entry.
A charge of abandonment is not made out
where it appears that the entryman in fact
established, in good faith on the land, and
that his absences thereafter were temporary
in character, and necessary for his support
and the maintenance of the claim.....
The continuity of, is not affected by tem-
porary absences resulting from illness,
and the necessity of earning money for
maintenance of the claim and personal sup-
port........
Right of Way.
Regulations of April 18, 1899, concerning,
over Indian lands for railway, telegraph
and telephone lines, under act of March 2,
1899
The words" For the right of way of rail-
roads," as used in section 2288 of the Re-
vised Statutes, are not limited to the width
of the railroad track, but include such space
as is necessary for side track, stock yards,
or other purpose incident to the proper
business of a railroad as a common carrier. 561
The Northern Pacific railroad company
by section 2, act of July 2, 1864, holds its
right of way under a qualified fee, which,
so long as the qualification annexed is not
at an end, confers upon the company the
exclusive right of possession; a settlement,
therefore, upon said right of way is not a
settlement upon the public land, and confers
no right or claim to adjoining public land.. 412
The articles of incorporation and proofs
of organization are required by the act of
1875 to be filed with the Secretary of the
Interior, and where the same are found suf-
ficient to identify the company as a bene-
ficiary of the grant, and are accepted by
the Secretary, the right acquired by said
acceptance will relate back to the time when
said articles and proofs were presented, so
as to protect the company in any subse-
quent use of timber and material necessary
for the construction of the road......
If timber necessary for the construction
of the road can not be found laterally adja-
cent to and within the termini of the pro-
posed road, it is permissible to go beyond
said termini to secure such material........ 439
In determining whether timber is taken
from lands adjacent to the line of the pro-
posed road, the nature of the country to be
traversed by said road, and the most availa-
ble means of transportation may be con-
sidered..
As between the United States, and a rail-
road company claiming the benefit of the
act of March 3, 1875, the company is entitled
to take from the public lands adjacent to
the line of its proposed road timber and
material necessary for the construction
thereof, on the filing of its articles of in-
corporation and due proofs of organization,
as provided in section 1, of said act
Under a grant of a railroad right of way
through the Indian Territory, with neces
sary station grounds, it is a proper exercise
of the general authority of the Interior
Department to require a plat to be filed
showing the lands required for station pur-
poses, although the granting act does not
provide for the filing of such plat, and the
approval thereof fixes the right of the com.
pany to occupy the ground included therein. 130
CANALS, DITCHES AND RESERVOIRS.
See Reservation, under Forest Lands.
Circular of July 8, 1898, with respect to
reservoirs for watering live-stock amended
June 23, 1899...
The right of an applicant for a reservoir
site under the act of March 3, 1891, will not
be defeated by an intervening adverse
entry, if at the date when the map showing
the location of said reservoir site is filed
the lands included therein were subject to
such appropriation......
The grant made by the act of March 3,
1891, for canals, ditches and reservoirs over
public lands and reservations of the United
States was limited, by the terms of said act,
to companies formed for purposes of irriga-
tion, and while section 2, of the act of May
11, 1898, amendatory of the act of 1891, per-
mits the use of rights of way, granted under
said act of 1891, for other purposes, it does
not enlarge the class of grantees; hence,
under these acts, the Secretary of the Inte-
rior has no authority to grant the right to
establish a reservoir, or construct a ditch
for mining or domestic purposes, within the
limits of Yosemite Park, or any forest re-
serve in California
Riparian Rights.
The control and right to dispose of public
lands lying under a navigable stream, that
forms the boundary of a State, and within
the limits thereof, passes from the govern-
ment of the State on its admission to the
Union, and if a sudden change occurs there-
after in the course of such stream, the relic-
tion lying within said State is not the prop.
erty of the United States.....
Purchasers or grantees of meandered sub-
divisions, bordering upon a body of water,
take title thereto with all of the incidents of
ownership, among which is that of a right
to relictions. This right pertains to the
ownership of lands bounded by a water
line, without reference to the character of
the land, and hence exists in the case of title
acquired under the swamp act.
School Lands.
A settlement under the donation law
prior to survey does not except the land
covered thereby from the operation of the
grant of, where after survey the settler
abandons his claim without asserting any
right thereto before the Land Department.. 366
On the approval of a survey made after the
admission of the State of Nebraska to the
Union the title to the school sections vested
in the State, and the subsequent resurvey
of Grant and Hooker counties, authorized
by act of August 9, 1894, did not defeat
such title, though by said resurvey the
designation of such sections by number
may have been changed.....
Regulations of March 11, 1899, with re-
spect to indemnity selections for lands em.
braced within forest reservations....
Where a forest reservation includes with-
in its limits a school section, surveyed prior
to the establishment of the reservation, the
State under the authority of the first pro-
viso to section 2275 R. S., as amended by the
act of February 28, 1891, may be allowed to
waive its right to such section and select
other land in lieu thereof...
The act of March 3, 1849, reserving lands
in the Territory of Minnesota for school
purposes, was not irrevocable by Congress. 374
Under the compact effected by the modi-
fied proposal of March 3, 1857, and its ac-
ceptance, the status of said sections at the
time of survey was made the criterion in
determining whether the State became en-
titled to the specific sections, or to other
equivalent lands as indemnity. (Minn.)... 374
The proposal made by the United States
in the act of February 26, 1857, to grant to
the State of Minnesota, when admitted into
the Union, sections sixteen and thirty-six
for school purposes, was modified by the
joint resolution of March 3, 1857, and it was
the proposal, as so modified, that was ac-
cepted in the State constitution adopted
October 13, 1857
The lands known as the "Red Lake res-
ervation" in Minnesota, were unsurveyed at
the passage of the act of January 14, 1889,
and by the terms of said act, and the agree
ment with the Indians thereunder, were set
apart to be used in raising a fund for the
benefit of the Indians, and by such appro
priation were "reserved for public uses,"
within the meaning of the joint resolution
of March 3, 1857, prior to survey: sections
sixteen and thirty-six in said reservation,
therefore, did not pass to the State under
the school grant, but other equivalent un-
appropriated lands may be selected in lieu
thereof..
The directions contained in the act of
March 2, 1889, restoring lands in the Great
Sioux reservation to the public domain,
that said lands should be subject to dispo.
sal only to actual settlers, on the payment
of a fixed price therefor, and that the
moneys accruing from such disposal should
form a part of the permanent Indian fund,
constituted an appropriation of said lands
for the specific purpose of creating an In-
dian fund, and an inhibition upon their dis-
posal in any other manner. Said lands are
therefore not subject to selection as school
indemnity for losses within said reservation,
and the certification of lands thus selected
is ineffective, and the State takes no title
thereby
Where the State has sold a tract as in-
demnity land, and it subsequently appears
that the record discloses no selection there-
of, it may be permitted to select such tract,
on due assignment of basis, where such
action is necessary for the protection of its
vendee, and is in pursuance of its original
intention......
![[blocks in formation]](https://books.google.pt/books/content?id=LlULAAAAYAAJ&hl=pt-PT&output=html_text&pg=PA632&img=1&zoom=3&q=editions:NYPL33433081774535&cds=1&sig=ACfU3U2qkKtYL0T0kcZ0h1gNL8C_gfaLpQ&edge=0&edge=stretch&ci=105,1087,430,418)
In the absence of special statutory author-
ity therefor, the public lands can only be
disposed of according to the legal subdivi-
sions of the public survey; and it follows
from such rule that the right obtained by
settlement under the homestead law upon
a given legal sub-division extends to the
whole of that sub-division..
A notice of a possessory claim, given
prior to survey in the field, will not estop
the settler from afterwards making his
entry conform to the legal subdivisions, in
such manner as to include the land actually
settled upon by him, as against settlers
whose rights are acquired after such sur-
vey
One who goes upon land covered by an
existing entry, with intent to acquire the
same as a homestead, and purchases the
relinquishment of said entry, together with
the improvements and household effects of
the entryman, and thereupon assumes pos-
session of the premises, initiates a right
superior to the claim of another who, with
full knowledge of said facts, subsequently,
and prior to the filing of the relinquishment,
settles on said land
One who goes upon land covered by the
entry of another under an agreement with
the prior entryman that the entry shall be
relinquished for his benefit, acquires no
right of, as against the intervening entry of
a third party, made on the relinquishment
of the prior entry, if he has taken no action
toward securing the cancellation of said
entry.....
One who is living on land as the tenant
of an entryman acquires no right of, on the
relinquishment of the entry, by remaining
on the land, that he can set up as against
the intervening entry of a third party,
where such occupancy is in effect a contin- .
nance of his previous relation to the land.. 395
As between two applicants for the right
of entry where the question of priority de-
pends upon the time of, on the part of one,
as against the time of application by the
other, the settler will be given the preced-
ence, if it can not be satisfactorily deter-
mined that the adverse application was
regularly tendered prior to the act of settle-
ment shown, and entitled to consideration
at such time.....
The case of Connors v. Mohr, 18 L. D.,
380, cited and followed in the matter of the
priority of, as against an entry made by one
who was in waiting at the local office prior
to such settlement, but was prevented from
making entry by the number of prior appli-
cants then in attendance at said office...... 243
On the Northern Pacific right of way is
not a settlement on public land, and hence
confers no right under the settlement laws. 412
HOMESTEAD.
In the case of a claim of, that includes
surveyed and unsurveyed lands, the right
of the settler to make entry of the surveyed
land is only protected for the period of three
months from settlement as against interven-
ing adverse claims ....
The failure of a settler to make homestead
entry within the statutory period after, can
not be excused on the ground of poverty, in
the presence of an intervening adverse en
try made in good faith after the right of such
settler has expired by limitation of the
statute.......
It is not necessary for the protection of a
settlement claim, on land included within
the prior pending application of another,
that the settler should assert his settlement
right by an application to enter while the
land occupies such status..
The right of one who is residing on a tract
of land embraced within a railroad indem-
nity selection at the date of the cancellation
thereof, and thereafter applies within three
months of such cancellation to make entry,
is superior to any adverse claim made after
said cancellation
Special Agent.
See Practice, under Notice.
States and Territories.
The control and right to dispose of public
lands lying under a navigable stream, that
forms the boundary of a State, and within
the limits thereof, passes from the govern
ment to the State on its admission to the
Union, and if a sudden change occurs there.
after in the course of such stream, the relic-
tion lying within said State is not the prop-
erty of the United States
See Acts of Congress, and Revised Statutes
cited and construed, pages XIX and XXI.
The word "occupant" construed to mean
one entitled to "use and possession"...... 537
The surveyor general's return, as to the
quantity of land in a legal sub-division, is
only considered conclusive for the purpose
of the disposition thereof as public land... 187
In the survey of land bordering upon a
body of water the meander line is not run
as a boundary, but for the purpose of ascer-
taining the quantity of land in the subdivi
sions rendered fractional by reason of their
bordering upon the water....
In the, of a "small holding" claim that has
a boundary line in common with an adjacent
claim, for which mileage has been charged
and allowed, the surveyor is only entitled to
compensation for such common boundary
line when it is actually run the second time,
and such action appears from the record to
have been necessary
The fact that a deputy surveyor fails to
obtain special authority for making a resur-
vey is no reason for the disallowance of his
account, if, upon examination, it is found
that such resurvey was actually necessary
and would have been authorized if applica-
tion had been made therefor.....
The provisions in the appropriation act
of March 3, 1899, requiring public land sur-
veys thereafter made, whether within or
without reservations, to be under the direc-
tion and supervision of the Commissioner
of the General Land Office, do not preclude
the completion, by the Geological Survey,
of the sub-divisional survey of a township,
within a forest reserve, begun under author-
ity of the act of June 4, 1897..
Where the Northern Pacific railroad has
been constructed across unsurveyed land,
and a survey of the public lands is there-
after made and approved, in which the lines
of survey are extended across the railroad
right of way, as though it were a mere ease-
ment, such survey will not be set aside and
a resurvey made for the purpose of closing
the lines of survey upon said right of way;
it appearing that many tracts adjoining said
right of way have been disposed of under
the existing survey, that neither the inter-
est of the United States, nor of the company,
require such action, and that there is no
difficulty in identifying the portion of each
sub-division that remains subject to settle.
ment and disposition as public land...................
Swamp Land.
The State has no right under its grant of,
to double minimum reserved sections within
the limits of a prior railroad grant..
The actual status of land at the date of the
swamp grant determines the right of the
State thereto, and such right is not affected
by the erroneous designation of a tract as a
"lake" in the approved survey
.... 318
Under the grant of, it is the duty of the
Secretary of the Interior to determine what
are "swamp and overflowed lands made un-
fit thereby for cultivation," and therefore
subject to the grant. Until the legal title
passes to the State, by the issuance of pat-
ent, the authority of the Land Department
to inquire into the validity of a claim under
said grant does not terminate; and in the
exercise of such authority the Secretary of
the Interior may properly revoke his ap.
proval of swamp land selections......
Under the grant of, the legal title passes
only on delivery of the patent, and until
such title passes from the government, in-
quiry as to all equitable rights involved in
the adjustment of said grant comes within
the cognizance of the Land Department ... 558
The State is estopped from asserting a
claim to lands under the swamp grant,
where a certification thereof, under another
grant to the State, was accepted, and has
stood intact for many years, and the State
has disposed of the lands thereunder, on the
faith of which others have acquired rights
therein.......
A cash entry of land claimed under the
swamp grant, made after the passage of the
act of March 2, 1855, and prior to the act of
March 3, 1857, should be passed to patent
under the terms of said acts, as against ap-
proved, but unpatented, swamp land selec-
tion, the State not having, within ninety
days after the passage of the former act, re-
ported any sale or disposition of said tract 559
Timber and Stone Act.
A purchaser erroneously allowed to buy
"offered" timber land takes nothing there-
by; and if he cuts timber from such land is
liable in damages to the United States in a
civil action, to the same extent as though
the trespass had been committed upon any
other part of the public domain..........
Timber Cutting.
See Right of Way, Timber and Stone Act.
Timber Culture.
An entryman is entitled to credit for trees
planted and cultivated by a former entry-
man to whose possessory right he has suc-
ceeded
The inclusion of a part of an Indian res-
ervation, established by treaty, within the
corporate limits of a city, under authority
of a territorial statute, is beyond the legis
lative power of the Territory and without
effect.....
Where an application is made under sec-
tion 22, act of May 2, 1890, on behalf of an
incorporated town, for the money paid on
a commuted townsite entry, the evidence of
the incorporation of the town, and its mu.
nicipal organization, may be accepted, if
the fact of incorporation is shown by a cer-
tified copy of the order made by the county
board of commissioners, and it appears that
the officers elected did effect an organiza
tion, though certain directory provisions
in the statute, under which the town was
incorporated, were not complied with in the
manner prescribed..........
Warrant.
The Commissioner of the General Land
Office may properly determine, in advance
of location, whether the assignment of a
bounty land, has been made according to
the prescribed form and regulations.....
|