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WATER RIGHT-Continued.
ownership in no wise affects her right to
acquire water under the project for comple-
tion of such entry under the reclamation act 116
Where the irrigable area of a legal subdi-
vision embraced in an entry within a
reclamation project is shown on the duly-
approved farm-unit plat to be greater than
the entire area of such legal subdivision
shown on the prior township plat, applica-
tions for water rights and payments therefor
should be made on the basis of the actual
irrigable area, and not on the basis of the
acreage shown on the township plat....... 600


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Order of May 4, 1911, relating to payment. 67
Public notice of December 30, 1911, con-
cerning charges..

Order of February 3, 1912, respecting
water service and payment.....

Order of May 13, 1911, relating to payment 82

Public notice of February 17, 1912, con-
cerning charges ..



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See Practice.


The practice adopted in some local offices
of allowing the filing of relinquishments
conditionally will no longer be permitted.
Hereafter the filing of a relinquishment of an
entry or claim under the public land laws
will work a cancellation of the entry or
claim and will be at once noted of record,
the land being thereby cleared...

Order of June 8, 1911, respecting payment. 138 Repayment.

The mere fact that an entry was voluntar-
ily relinquished will not absolutely bar
repayment under the act of March 26, 1908,
in the absence of fraud or bad faith in the
making of the entry, if the relinquishment
was made for good and sufficient cause and
under such conditions and circumstances as
would entitle the person relinquishing to
make a second entry as though the first had
not been made....



Public notice of December 30, 1911, con-

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Public notice of May 20, 1911, relating to

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Instructions of April 6, 1911, under act
of March 3, 1911, respecting homestead
entries of lands withdrawn for forest pur-

Instructions of October 4, 1911, respecting
publication of notice of opening of forest

Only lands in fact nonmineral and classi-
fied as such at the time of the government
survey are subject to selection by the
Northern Pacific Railway Company under
the act of March 2, 1899; and the land de-
partment is without authority to permit
selection of lands not so classified, even
though they may in fact be nonmineral




The fact that the diagram upon which
the proclamation of July 1, 1908, adjusting
the lines of lands theretofore reserved for
forest purposes so as to eliminate certain
lands from the Bitter Root reservation and
place them in reservations of other designa-
tions, erroneously showed certain tracts
within the withdrawal for the Bitter Root
forest reserve made by the proclamation of
May 22, 1905, to have been omitted from
such reservation, does not have the effect to
release them from reservation, in view of
the provision in the later proclamation
that it was not intended by such adjust-
ment to release any land from reservation,
and the lands so erroneously omitted from
the diagram are not therefore subject to
appropriation as unreserved public lands.. 599
Act of June 4, 1897.

A pending unapproved application to
make forest lieu selection will not prevent
withdrawal of the lands embraced therein
for the purpose of reserving the power sites
thereon for public uses...

The charge in an affidavit of contest
against a forest lieu selection that the
selected land was occupied at the date of
selection is not sufficient in the absence of a
further charge that such occupancy was
adverse to the selector.....

The requirement that a forest lieu selec-
tion shall be made of unoccupied land is
for protection of such legal rights as the oc-
cupant himself may have, and he only is
entitled to question the selection on the
ground that the land was occupied at the
time selection thereof was made.....

Mere adverse occupancy of land will
defeat a forest lieu selection thereof, irrespec-
tive of whether the occupant is or is not
complaining of such selection, or whether
he is entitled to occupy, or whether such
occupancy meets the requirements of law

or not..

The proof of nonmineral character and
nonoccupancy required to support an ap-
plication to make forest lieu selection can





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not be completed, where the lands applied
for are unsurveyed, until approval of the
township plat of survey, unless they are
identified in fact; and such proof, when fur-
nished after identification by survey, should
relate to present existing conditions as to
the nonmineral character of the land, but it
is sufficient if the proof of nonoccupancy
relate to the date of such identification..... 284
Nonoccupied, nonmineral public lands of
the United States are subject to the ex-
change provisions of the act of June 4, 1897,
whether surveyed or unsurveyed; but a se-
lection of unsurveyed lands, which desig-
nates them as what will be, when surveyed,
technical subdivisions of specified sections,
but which does not identify the selected
land in law or in fact, is not such a selection
as may be approved by the Commissioner
of the General Land Office upon proof of
nonoccupancy and nonmineral character.. 284

An application to make forest lieu selec-
tion of unsurveyed lands not identified with
reference to natural boundaries or monu-
ments or such markings upon the ground
as would constitute notice to intending set
tlers, is no bar to the attachment of rights
under the act of May 14, 1880; and while
approval of the township plat of survey is
an identification of the lands as of the date
of such approval, and, by relation, as against
the government, as of the date of the filing
of the application, it does not and can not
so attach as to cut out intervening adverse
settlement claims....

The fact that land embraced in an applica-
tion to make forest lieu selection under the
acts of June 4, 1897, and March 3, 1905, has
been classified as coal is no bar to the right
of the applicant to complete his application
under the provisions of the act of June 22,
1910, by taking the limited patent provided
by said act, or the right to a hearing with a
view to disproving such classification and
establishing his right to an unrestricted

Upon approval of an application to make
forest lieu selection the title of the Govern-
ment to the lands relinquished as base
therefor attaches, under the doctrine of rela-
tion, as of the date the selection was per-
fected and entitled to be approved; and
the relinquished lands are not, subsequent
to that date, subject to taxation by the
State; and the selector will not be required
to make any showing as to whether or not
taxes have been assessed against the relin-
quished lands after the date the selection
was completed.....

Lands covered by the special contracts
entered into by the United States and the
Santa Fe Pacific Railroad Company, where-
by that company conveyed to the govern-
ment certain lands within the San Francisco







Right of Way.

Mountains forest reserve as basis for lieu
selections under the acts of June 4, 1897,
and June 6, 1900, are not subject to the re-
pealing provisions of the act of March 3, 1905,
or the restrictions contained in the proviso
thereto, but may, in the absence of other
objection and upon compliance with the
terms and provisions of the contracts, be
made the basis for lieu selections.....

Instructions of August 18, 1911, abolish-
ing constructive residence for first six
months after entry..

Instructions of September 8, 1911, under
act of August 19, 1911, granting leaves of
absence to certain homesteaders..

The act of February 13, 1911, granting cer-
tain homestead entrymen "until" May 15,
1911, within which to establish residence,
gives such entrymen the whole of said day
in which to begin residence; and a contest
filed on that day, charging abandonment,
is premature...




...... 547

The act of February 13, 1911, merely ex-
tends the time within which certain home-
stead entrymen are required by law to es-
tablish residence until May 15, 1911; and
where residence is not established on or
before May 15, on an entry within the act
made more than six months prior to that
date, such entry is subject to contest for
abandonment immediately thereafter..... 590
Even under the more liberal rule which
obtained prior to the instructions of Febru-
ary 16, 1909, with respect to the recognition
of absences on account of official employ-
ment as constructive residence, absence due
to employment under contract to carry the
mail is not entitled to be so recognized.... 87
While the widow of a soldier who made
homestead entry for 160 acres is entitled to
have the period of his military service de-
ducted from the required five-year period
of residence in proving up his claim, she is
not entitled to credit for such service in
proving up a homestead entry made in her
own personal right....

A successful contestant who prior to Sep-
tember 24, 1910, filed his contest and estab-
lished residence upon the land embraced in
the contested entry and has since main-
tained such residence, is entitled, in sub-
mitting final proof upon the entry made by
him pursuant to the contest, to credit for
the time he resided upon the land before
cancellation of the contested entry, the prac-
tice prior to that date being to accord credit
for such residence.....

Revised Statutes.

See Table of, cited and construed, page





Instructions of February 2, 1912, respect-
ing notation of rights of way on entry papers 393
The mere fact of an outstanding approved
right of way will not prevent the approval of
a conflicting application for right of way;
but in such case the conflict should be given
proper weight in determining whether ap-
proval should be given to the later applica-
tion, especially where the previous right of
way had been actually utilized..

The exercise of the jurisdiction of the Sec-
retary of the Interior over applications for
rights of way within reservations of the
United States involves the exercise of more
than a mere legal discretion, and he should
look beyond the mere technical sufficiency
of the application and in broad view sub-
serve the interests of the whole people..... 380

The mere filing by a railroad company of
its articles of incorporation, which do not
show the termini of the road, does not entitle
it to recognition as a beneficiary under the
act of March 3, 1875, in the absence of an
application for a specific right of way.. 184, 187

Section 1 of the act of March 3, 1875, does
not make an absolute grant of twenty acres
of public lands for station purposes for each
ten miles of road, regardless of necessity
therefor; but the measure of the right
thereby granted is the reasonable necessities
of the road, not to exceed either twenty
acres to each station or one station for each
ten miles.....


Application for railroad right of way
through a narrow canyon in an Indian
reservation, which is the most feasible site
for a reservoir for irrigation of lands in the
vicinity, rejected for the reasons that con-
struction of the road as contemplated
would prevent use of the canyon for reser-
voir purposes and that it is practicable to
construct the railroad at a higher grade
without interfering with the reservoir site. 170

Instructions of April 14, 1911, under act of
March 4, 1911, respecting rights of way for
electrical power, telegraph, and telephone


An application for a reservoir site should
be accompanied by a showing reasonably
demonstrating the feasibility of the contem-
plated irrigation scheme and the capability
of the applicant to carry the project to a suc-
cessful conclusion...

Section 4 of the act of February 1, 1905,
granting rights of way for dams, reservoirs,
water plants, ditches, flumes, pipes, tun-
nels, and canals within and across the forest
reserves of the United States, applies to and



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The approval by the Secretary of Agri-
culture of an application for right of way
under the acts of March 3, 1891, and May 11,
1898, for a reservoir site within a forest reser-
vation, does not pass the title to the land
covered thereby, but is merely advisory to
the Secretary of the Interior and subject to
his paramount jurisdiction under said acts.. 380
An application for right of way by a com-
pany claiming to own existing rights of way
must be accompanied by a showing of the
uses made of such rights of way, and in-
tended to be made of the additional right of
way applied for, sufficient to enable the
department to determine whether the pur-
poses of the company are properly within
the intendment of the act of March 3, 1891,
as amended by the act of May 11, 1898..... 125
No company will hereafter be recognized
as a beneficiary under the provisions of the
act of March 3, 1891, granting rights of way
over the public lands and reservations to
canal and ditch companies organized for the
purposes of irrigation, until the formal pre-
sentation of an application for a specific
right of way.


All public lands west of the 100th merid-
ian taken up under allotment, sale, home-
stead, or other form of disposition, subse-
quent to the act of August 30, 1890, as to
which there is no claim by reason of settle-
ment, occupancy, or otherwise, prior to that
date, are subject to the reservation provided
by that act, to be expressed in the patent,
for right of way for ditches or canals con-
structed by authority of the United States. 28
The act of January 13, 1897, providing for
use of public lands for construction of reser-
voirs for watering stock, contemplates the
reservation of only so much land as may be
necessary for the practical purposes for
which the reservoir is established; and the
Secretary of the Interior has the power at
any time to reform the reservation and
restore to settlement and entry all lands not
necessary for the free use and enjoyment of
the rights contemplated by the act........
Sand and Gravel.

See Homestead..

School Land.

See Reclamation.


Land within a school section assigned by
"the State as base for indemnity selection is
not subject to entry, selection, or other
appropriation under the public land laws
until the selection is approved and title to
the base land revests in the United

An application to amend a defective
school indemnity selection is defeated by an
intervening withdrawal of the land from
agricultural entry, with a view to classifica-
tion by the Geological Survey, under which

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The land department has full authority
and jurisdiction, either on its own motion
or at the instance of others, to inquire into
the bona fides of a claimed settlement upon
public land, not withstanding the land is
yet unsurveyed and no entry based upon
such settlement claim has been allowed.... 429

See Railroad Lands,

Special Agent.

See Land Department.

States and Territories.

The fact that lands selected by the State
of Utah under section 8 of the act of July 16,
1894, were adjudicated by the Commissioner
of the General Land Office to be noncoal
lands, as the result of a hearing upon a re-
port by a special agent charging that such
lands contained coal, does not entitle the
State to an unrestricted patent therefor
where the lands were subsequently with-
drawn and classified as coal, but the State
is entitled to perfect the selection and take
title to the land only with reservation to the
United States of the coal therein, as pro-
vided by the act of June 22, 1910.....

See Acts of Congress and Revised Statutes
cited and construed, pages XXI and XXIV.


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Instructions of February 29, 1912, relating
to drainage of swamp and overflowed lands
in Minnesota under act of May 20, 1908.... 438
Lands which at a hearing, upon applica
tion of the State under the act of July 23,
1866, are shown to have been, on September
28, 1850, the date of the swamp land grant
to the State, not of a permanently swampy
character, but subject merely to periodical
overflow and susceptible of cultivation on
recession of the waters, were not swamp
within the meaning of the swamp land
grant and did not pass to the State there-


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An applicant to purchase under the tim-
ber and stone act is entitled to thirty days
from service of notice within which to make
payment of the appraised price of the land. 77
Although section 19 of the regulations of
November 30, 1908, gives an applicant under
the timber and stone act, in cases where the
government fails to appraise the land within
nine months from the date of application,
the right to purchase the land applied for at
his appraised price (provided this is not less
than $2.50 per acre), nevertheless, if the gov-
ernment appraisal at a higher price is actu-
ally filed before the applicant exercises such
right, he must thereafter pay such higher
price, notwithstanding the expiration of
the nine months period....


Where a tract of land has been appraised
in accordance with the instructions of Nov-
ember 30, 1908, upon application of one de-
siring to make timber and stone entry
thereof, and returned by the appraiser as
not chiefly valuable for its timber, the appli-
cant, upon submitting a prima facie show-
ing, by affidavit, corroborated by at least
two persons having actual knowledge of the
character of the land, that it is chiefly valu-
able for the timber thereon, may be accord-
ed a hearing to determine that question.... 227
Where an application under the timber
and stone act is properly received and fail-
ure to offer proof thereon is the fault of the
applicant, he thereby forfeits the right to
return of the fee required to be paid at the
time of the presentation of the sworn state-
ment; but where for any reason other than
the fault of the applicant the application is
rejected, the fee is not earned and the appli-
cant is entitled to repayment thereof...... 131
In view of the statutory provisions requir-
ing reservations in patents under the timber
and stone act of all vested and accrued wa-
ter-rights and ditches and reservoirs used in
connection therewith, reservoirs and ditches
constructed for use in connection with min-

Timber and Stone Act-Contd. Page.
ing operations are not such improvements
as will prevent acquisition of the land upon
which they are located under the timber
and stone act.....

The regulation of the land department
that the preliminary affidavit of an appli-
cant to purchase under the timber and
stone act must be based upon personal in-
spection of the land is a proper and reason-
able requirement under the act, and failure
to comply therewith is sufficient ground for
cancellation of the entry; and a purchaser
after final certificate and before patent from
an entryman who failed to make such per-
sonal examination takes subject to such de-
fect and is not entitled to special considera-
tion as an innocent purchaser....
Timber Trespass.


.... 85

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