To hold land lawfully included in a loca-
tion the lines of survey may be laid upon
the surface of conflicting and excluded
claims under subsequent locations........... 156
To include land properly subject to loca
tion the survey of a mining claim may be
extended entirely across a prior excluded
location, and the end line established at a
point within a junior excluded location.... 256
In the case of an application for mineral
patent that embraces more than one loca-
tion, the survey and plat must so exhibit
the boundaries as to clearly define each
location

Land below high-water mark of a mean-
dered stream (Missouri River) should not
be included within the survey of a mining
claim.......
NOTICE.

The notice of application required to be
posted on a mining claim is an integral
and essential part of the notice of such
application, which the statute requires to
be contemporaneously posted for sixty days
on the claim, and in the local land office,
and to be published in a newspaper. If any
one of these three notices is insufficient,
they are all rendered valueless..

A mineral entry regularly canceled should
not be reinstated in the absence of posted
and published notice of the application
therefor, in the same manner, and for the
same time, that notice of an original appli-
cation for patent is required to be given,
and then only if it appears that no adverse
claim exists, or if adverse proceedings
have been instituted that they terminated
favorably to the applicant.....

An error occurring in the published notice
of application for mineral patent will not be
held sufficient to require new notice, where

585

585

467

470

Page.

it is of a character not to mislead, and the
different forms of notice, as published and
posted, when taken together show with ac-
curacy the location and boundaries of the
land included within the application....... 558
A published notice of application for min-
eral patent that shows no connection of the
claim with a mineral monument, or corner
of the public survey, is fatally defective... 592
A published notice of application for min-
eral patent is sufficient, in the matter of de-
scribing the claim, if the notice, taken as a
whole, designates the situation of the appli
cant's claim on the ground with substantial
accuracy

491

Clerical errors in posted and published
notice of application for mineral patent will
not be regarded as materially affecting the
validity of the notice, where said errors are
not calculated to mislead or deceive, and no
prejudice thereby is shown or alleged, and
it appears that such notice, taken as a whole,
meets the requirement of the law..... 230
It is not necessary to give the names of
all adjoining and conflicting claims in the
notice of an application for patent under
section 2325, R. S., but only such as are shown
in the plat of survey.

250

The statutory provisions limiting the time
within which an adverse claim may be filed
are mandatory, and the Land Department is
without authority to extend said period.... 467
Upon the acceptance of an adverse claim
by the local officers they become chargeable
with the fees required by law to be paid,
but the time of the actual payment thereof
to said officers is not necessarily material as
affecting the question of the validity of the
filing of said claim....

Section 2325 of the Revised Statutes is a
statute of repose only so far as to bar the
assertion of adverse mining claims not filed
within the period of publication, and does
not relieve the Land Department from the
duty of ascertaining whether the land
sought to be patented is mineral in char-
acter, and therefore subject to disposition
under the mining laws..

A protest against a mineral application
alleging adverse ownership, filed by one who
asserts no adverse claim in the manner pro-

413

12

Page.

vided by section 2326, R. S., presents no ques.
tion for the consideration of the Department,
except in so far as the claim of ownership
may operate as an inducement to accord the
protestant the right to be heard on appeal
under the rules of practice...

A protest filed as the basis of adverse
proceedings is sufficient, if it clearly and
definitely notifies the mineral applicant of
the nature, boundaries, and extent of the
alleged adverse right......

An uncorroborated protest against a min.
eral application, involving matters subse-
quently made the basis of judicial proceed.
ings by the protestant, is not entitled to
further consideration by the Department,
as to matters in issue before the court where
by stipulation of the parties the judicial
proceedings are dismissed........

An allegation on the part of a protestant
that the allowance of a mineral entry as
applied for will injuriously affect the extra-
lateral rights of the protestant, does not
present, in the absence of any surface con-
flict, a question of which the Department
will take cognizance.

The statutory assumption declared in sec-
tion 2325, R. S., that no adverse claim exists,
where no such claim is filed in the local
office during the period of publication, has
relation only to adverse claims which might
have been made known at the local office
during that time

The determination of questions with re-
spect to the right of possession as between
adverse mineral claimants rests solely with
the courts; and the manner in which a court
ascertains the facts, whether by stipulation
or otherwise, upon which it renders judg
ment is a matter that in no degree affects
the conclusive and binding force of such
judgment upon the parties to the suit and
the Land Department.

In a controversy between one claiming
under a townsite entry and patent, and an-
other under a subsequent application for
mineral patent, the question as to whether
the land contained, at the date of the town-
site entry, known mines, or was embraced
in a valid mining claim or possession, must
be decided by the Department; a decision
of that question by a court would not bind
or conclude the Department, or relieve it
from the duty of making its own decision
in the premises

The pendency of adverse proceedings,
based on a tunnel location, operates as a
stay of all action under an application for
mineral patent that embraces ground in-
cluded in said adverse claim......

The mining laws do not provide for ad-
verse proceedings, against an applicant for
patent to mineral land, by one claiming the
same, or any part thereof, under laws pro-
viding for the disposal of non-mineral
lands; and a suit of such character does not

230

460

83

662

302

388

522

235

Proceedings in the form of an adverse
suit, instituted by one holding under an
existing mineral entry, as against a sub.
sequent mineral application erroneously
accepted and entertained by the local office,
do not constitute a recognition of the valid-
ity or regularity of such application, or
have the effect of divesting, waiving, or
suspending rights acquired under the entry. 114

One who is entitled to a mineral patent
under an entry, made after due compliance
with statutory procedure, is not required
to file an adverse claim as against the sub-
sequent application of another that em-
braces part of the land so entered.......... 160
The departmental decision in re Little
Giant Lode, 22 L. D., 629, did not hold that
the proceedings under consideration there-
in constituted an adverse suit as contem-
plated by section 2326, R. S., but that under
the facts shown a stay of proceedings was
warranted..

ENTRY.

On the payment of the purchase price of
a tract of mineral land and the allowance
of a mineral entry therefor, the right of the
applicant to receive a patent corresponding
to his entry is complete, and precludes the
acquisition of any adverse right while said
entry remains of record....

A mineral entry made on the joint appli-
cation of several parties, some of which are
without interest in part of the land entered,
may be permitted to stand, where such
parties subsequently acquire by proper
conveyances a complete chain of title, and
make due showing thereof that is satisfac-
tory as between the applicants and the
government........

........

A mineral entry should not be allowed at
a time when the land covered thereby is
embraced within a prior mineral entry
standing of record, and involved in pro-
ceedings pending before the Land Depart-

ment

A tract included in a mineral application,
and in the notice given thereof, but not em-
braced in the entry on account of a defect
in the chain of title, may be afterwards
included within the entry, by way of
amendment, if the defect in the title is

cured

194

373

208

62

287

Page.

It is no objection to a mineral entry that
it embraces certain ground specifically ex-
cluded from the application and notice,
where in adverse judicial proceedings the
ground so excluded has been awarded to
the applicant...

An applicant for mineral entry may prop-
erly eliminate by way of relinquishment, or
otherwise, any part of a location, not essen-
tial to its validity, without prejudice to his
claim for the residue.

An applicant for mineral entry may elimi
nate by relinquishment any part of a loca-
tion, not essential to its validity, without
prejudice to his claim for the residue

A judgment rendered on stipulation be-
tween parties to an adverse proceeding is
conclusive as to the right of possession,
and the tract so awarded to an applicant
may be properly included in his survey and
entry
PLACER.

The entire area that may be taken as a
placer ciaim can not be acquired as appur-
tenant to placer deposits which are shown
to exist only in a portion thereof.......

Where a part of the area embraced with-
in a placer entry is shown to contain no
valuable mineral deposit subject to placer
location, such part of the claim will be ex-
cluded from the entry..

71

287

574

287

12

12

A judgment of a court in adverse pro-
ceedings instituted by a placer claimant, as
against a lode applicant, wherein the ad-
verse claimant is awarded the possession,
forms no basis for a lode entry by such ad-
verse claimant, where, in the adverse pro-
ceeding, said claimant rests his right solely
on his alleged placer claim, and asserts that
there are no known lodes or veins therein.. 137
An adverse placer claim, and the judg
ment thereon, will not be disregarded on
the ground that the land in controversy by
previous decision of the Department has
been held to contain no placer deposits,
where said adverse claim has been recog
nized by departmental decision, and sus-
tained by the trial court, and the matter is
pending on proceedings in error in which a
supersedeas has been allowed

A protest, by a lode claimant, against a
placer entry, should not be entertained on
questions involving the placer character of
the ground and the entryman's compliance
with law, where the entry was regularly
allowed, has been sustained in the courts,
and it is not asserted that the existence of
any veins or lodes claimed by the protes-
tants was known at the time of the placer
application, and the location under which
the protestant claims was not made until
many years after the allowance of the
entry

137

465

Page.

the second clause of section 2337, R. S., de-
pends upon the presence on the land applied
for of a quartz mill or reduction works .... 143
Naturalization.

See Citizenship.

Occupant.

See Oklahoma Lands.

Oklahoma Lands.

See Townsite.

One who has abandoned all claim under
a former entry is not disqualified as a set-
tler, claiming the right of second entry
under section 13, act of March 2, 1889, 25
Stat., 980, by the fact that the first entry
had not been canceled of record at the date
of his settlement......

Section 10, act of March 3, 1893, makes
the provisions of section 13, act of March 2,
1889, applicable to the lands in the Cherokee
Outlet, not only as to the manner of opening
said lands, but also as to the qualifications
of claimants therefor.

.......

108

108, 246
The right of second entry, as provided
for by section 13, act of March 2, 1889, 25
Stat., 980, is determined by the status of
the applicant at the time of his application;
and if, at such time, he has attempted to
secure title under law existing at the pas-
sage of said act, but failed, he is qualitied
as an entryman thereunder, so far as his
previous entry is concerned.

The right to make a second homestead
entry conferred by the act of March 2, 1889,
25 Stat., 980, upon persons who having
attempted to, but for any cause failed to
secure a title in fee to a homestead under
existing law," is applicable to entries in the
Cherokee Outlet, and is determined by the
status of the applicant at the date of his
application....

Where a bona fide occupant of lands in
Greer County, as the head of a family, has
taken the full amount of land to which he
is entitled under the act of January 18, 1897,
a member of his family, over the age of
twenty-one, other than husband or wife,
may take, under said act, additional or "ex-
cess" lands, not to exceed one hundred and
sixty acres...

246

372

340

If the head of the family fails to exer-
cise his rights within the time accorded
him by the act of January 18, 1897, any duly
qualified member of his family, other than
husband or wife, may succeed to his rights
for three months longer, with the limita-
tion that such member can take only one
hundred and sixty acres. (Greer County.).. 340
The right conferred by section 1, act of
January 18, 1897, to purchase lands addi-
tional to those entered under the homestead
law, is not limited by any requirement that
the tract so purchased shall be contiguous.
(Greer County.)..

532

Patent.

Page.

The provisions of the act of June 8, 1880,
with respect to the issuance of, in cases
where a homesteader has become insane,
do not authorize patent if the proof sub-
mitted fails to show the citizenship of the
entryman

The right to have a mineral, so amended
as to describe the land actually applied for
and purchased, is not defeated by a subse
quent adverse location, nor by an entry,
based on said location, allowed during pen.
dency of proceedings instituted to secure
such amendment

Conceding that one who furnishes evi-
dence on which a, is set aside is equitably
entitled to a preferred right of entry, there
is no authority for recognizing such equity
as the subject of transfer

In a case where the United States could
successfully maintain a suit for the vaca-
tion of a, wrongfully obtained, a voluntary
reconveyance of the land so patented may
be accepted

For the purpose of enabling the United
States, without resort to judicial proceed-
ings, to convey ground by mineral patent,
which by mistake has been included in a
homestead patent, a voluntary reconveyance
of the land may be accepted by the Depart-
ment.

Proceedings to vacate a, should be insti-
tuted on behalf of the government, where
said patent is wrongfully issued through
inadvertence during the pendency of a
controversy before the Land Department
involving the land covered thereby.

Payment.

A homestead entryman who has complied
with the requirements of the law for a
period of five years from date of settlement
is entitled to submit final proof, and to an
extension of time within which to make, un-
der the act of September 30, 1890, if other-
wise within the terms of said act..

710

160

178

397

475

58

313

Rule 14 (Rules of 1896) does not require,
in service of, by publication, where the suit
is against the heirs of the entryman, and
the post address of such heirs is unknown,
that a copy of the notice should be sent to
said heirs at the last known address of the
entryman ......
445, 587
The publication and posting of a notice of
a hearing ordered on the application of a
mineral claimant to determine the character
of a tract of land retured as agricultural,
and listed as part of an odd-numbered sec-
tion within the primary limits of a railroad
grant, is not sufficient notice to the com-
pany of said hearing

If an error occurs in the service of by pub.
lication, which makes necessary a republi-
cation, a new affidavit should be filed as the
basis of an order therefor, except where the
defect in the service is discovered during
the period of publication, and a proper pub-
lication is promptly made

In giving, of a decision, in a matter be.
tween the entryman and the government,
it is the duty of the local office to use all rec-
ord means at its disposal to obtain service
on the entryman

REHEARING.

Newly discovered evidence furnishes a
proper basis for a new trial, if it is apparent
from the showing made that such evidence,
if introduced and unrebutted, would deter-
mine the issue between the parties, and the
applicant for the new trial is not chargeable
with laches in failing to procure such evi-
dence at the time of the trial..

Error occurring at the time of trial, by
which competent and material evidence is
excluded, will be considered on application
for a new hearing.

27

693

77

581

581

Pre-emption.

Page.

Pre-emptive rights, under a filing for a
tract of unoffered land, are not terminated
by a proclamation of offering and sale, where
the land is subsequently withheld from
such offering.

Price of Lands.

See Public Lands.

Private Claims.

See States and Territories.

Section 6, act of June 21, 1860, authorized
the heirs of Baca to select, in place of the
land claimed by them, "an equal quantity
of vacant land, not mineral," and made it
the duty of the surveyor-general to survey
and locate the lands so selected, subject to
the proviso "that the right hereby granted
to said heirs of Baca shall continue in force
during three years from the passage of this
act, and no longer." Held:

1. A selection regularly made by the grant
claimants within the time fixed by said act,
can not, after the expiration of said period,
be changed, by an alleged amendment, to em.
brace lands not covered by the previous

selection.

2. The time with reference to which the
character of the land selected, whether va-
cant and not mineral, is to be determined, is
the date of the selection, and not the date of
the approval of the survey of the claim.

3. The duty of investigating and deter-
mining, in the first instance, the character
of the land selected, rests upon the sur-
veyor-general, who should conduct such
investigation and make such determination
as the work of the survey progresses in the
field

The right of purchase under section 7, act
of July 23, 1866, does not extend to one who
purchases the title to a confirmed, but un-
surveyed, Mexican private claim having
definite boundaries, and who receives pat-
ent for the full quantity of land included
within such boundaries as established on
survey

613

44

369

Section 3, of the act of March 3, 1819, for
the adjustment of certain private land
claims in Louisiana, makes provisions for
two classes: (1) every person whose claim
is comprised in the lists or register of claims
reported by the commissioners, and, (2) the
persons embraced in the list of actual set-
tlers. The words "not having written evi-
dence of title," as employed in said section,
are descriptive of the second class of donees,
and not a limitation upon the first class... 698
Public Lands.

The instructions of June 6, 1899, 28 L. D.,
479, with respect to the price of the alter-
nate reserved sections within the limits of
the grant along the constructed main and
branch lines of the Southern Pacific and
within the forfeited limits of the Atlantic
and Pacific, adhered to on review.......... 166

Railroad Grant.

See Mineral Lands; Right of Way.
GENERALLY.

The provisions of paragraph 104 of the
Mining Regulations are not applicable to
selections made under the act of August 5,
1892

Directions given for the adjustment of
the railroad grant to the Cedar Rapids and
Missouri River R.R. Co., made by the acts
of May 15, 1856, and June 2, 1864.....

Directions given in the matter of the issu-
ance of patents on account of the grants
made by the acts of July 1, 1862, and July 2,
1864, to aid in the construction of the Cen-
tral Pacific railroad, and the grant made by
the act of July 25, 1866, to aid in the con-
struction of the California and Oregon rail-
road......

254

79

589

Directions given that hereafter patents
shall issue to the Union Pacific Land Com-
pany, as the successor in interest of the
Kansas Pacific Railway Company, for any
lands which the latter company is entitled
to under Congressional grants to aid in the
construction of the Kansas Pacific railway. 94

Directions given that hereafter patents
shall issue to the "Union Pacific Railroad
Company," as the successor in interest of
the Union Pacific Railway Company, for
any lands which the latter company was
entitled to under the grants of July 1, 1862,
and July 2, 1864, on account of the construc
tion of the main line of the Union Pacific
railroad.

Directions given for the recognition of
the Northern Pacific Railway Company as
the successor in interest of the Northern
Pacific Railroad Company, in the approval
of lists and issuance of patents on account
of the grant to the latter company

at the

Landsclassified as non-mineral
time of actual government survey, are of
the class of lands subject to selection under
the act of August 5, 1892, and the character
of lands, so classified and selected, will not
be investigated on indefinite charges, or
protests alleging mineral locations made
after survey and selection ......

To justify a hearing as to the character
of land classified under the act of February
26, 1895, where the protest is not filed until
after the prescribed time, and after the ap-
proval of the classification by the Secretary
of the Interior, such a showing of fraud in
the classification must be made as would
condemn and avoid it, if sustained by proof
produced at the hearing..

26

387

254

102