Officers.

See Fees, 3; Final Proof, 1, 2,

Oil Lands.

See Mining Claim, 9; Withdrawal,
1, 3.

1. Upon a hearing to determine
whether an agricultural entryman
should receive restricted or unre-
stricted patent to land included
within the outboundaries of a pe-
troleum withdrawal between the
dates of entry and final proof, the
withdrawal being prima facie evi-
dence the land is oil in character,
the burden is on the agricultural
claimant to establish that the land
was not known to be such at the date
of perfection of final proof____
Oregon & California R. R. Lands.

1. Regulations-Exchange of lands
formerly within grant to Oregon &
California Railroad----

46

424

3. Under section 2 of the act of
October 2, 1917, a lease, may issue
for deposits of potash in public lands
in Sweetwater County, Wyo., also
containing coal, on condition that
the coal be reserved to the United
States, but said section does not
contemplate or authorize the grant-
ing of a prospecting permit‒‒‒‒‒‒‒‒ 498
4. No right will be regarded as
initiated by the filing of an applica-
tion under the regulations of Decem-
ber 1, 1917, for a permit to prospect
for potash on public lands in Sweet-
water County, Wyo., which by sec-
tion 2 of the act of October 2, 1917,
are subject only to lease, and rela-
tive to which said regulations have
no application__

499

100

Continued.

2. Instructions of October 2, 1917
(Circular No. 567), amending Rule
of Practice 95-

Page.

3. A motion for new trial upon
the ground of newly discovered evi-
dence must relate to the issues of
the original contest..

4. Where appeal is taken from the
decision of the local land office, such
office is without further jurisdiction
in the case, and papers afterwards
filed should be forwarded without ac-
tion other than notation upon the
records of their receipt-----

5. A motion for rehearing will not
be granted where no new question of
vital importance is presented, or
where there is such conflict of evi-
dence that fair minds might differ
as to conclusion therefrom, or that
does not affirmatively show that the
decision complained of is clearly
wrong and against the palpable pre-
ponderance of the evidence..

6. Under Rule 98 of Practice (44
L. D., 395, 411), an incumbrancer
who has filed due notice thereof is
entitled to such notice of any pro-
ceedings affecting the land as is re-
quired to be given the original entry-
man or claimant__

Preference Right.

See Contestant, 1; Homestead
(Reclamation), 26; School Lands,

10.

Private Claim.

See Survey, 7, 8.

Public Lands.

See Indian Lands; Land Depart-
ment.

1. Methods of keeping records and
accounts relating to public lands.
(Circular 616)__

2. Land segregated from the public
domain, whether by patent, reser-
vation, entry, selection, or otherwise,
is not subject to settlement or other
form of appropriation until its re-
storation to the public domain is
noted upon the records of the local
land office--

Railroad Grant.

See Mineral Land, 34; Oregon &
California Railroad Lands.

1. Under the excepting clause in
the grant to the Central Pacific by
the act of July 1, 1862, as amended
by the act of July 2, 1864, the term
"iron land" will be construed in its
ordinary meaning; that is, land not
only valuable for iron, but as between
iron and other mineral content,
chiefly valuable for iron_‒‒‒‒‒

Railroad Land.

Page.
See Mineral Land, 3, 4; Right of
Way, 7, 8.

1. Instructions concerning Indian
occupants of railroad lands in Ari-
zona, California, and New Mexico.
(Circular No. 533)__.

2. Instructions of April 28, 1917,
under act of February 27, 1917, re-
garding adjustment of conflicting
claims to Northern Pacific lands in
Washington. (Circular No. 548)__

3. To entitle the Northern Pacific
Railway Co. to make selection under
the act of March 2, 1899 (30 Stat.,
993), it must not only appear that
the land is not of known mineral
character at the date of the selection
but it must have been returned as
nonmineral at the date of actual
Government survey; and a return by
the surveyor that "mining opera-
tions are now being carried on to a
great extent; mineral indications are
found in nearly all parts of the town-
ship," does not constitute
mineral return, and land so returned
is not subject to selection under that
act --

a

non-

4. Selections by the Northern Pa-
cific Railway Co. under the act of
March 2, 1899 (30 Stat., 993), are
limited to nonmineral lands
classified as nonmineral at the time
of the actual Government survey";
and where the surveyor reported that
"there are many indications of the
presence of mineral, gold, copper, and
silver, though no veins have been
located," the land, not being of the
class named, is not subject to selec-
tion under that act, even though it
be in fact nonmineral__.

5. Land embraced within a rail-
road indemnity selection presented
in accordance with departmental regu-
lations and accepted and recognized by
the local officers was not "undisposed
land of the United States" within
the meaning of the act of August 3,
1892, and did not fall within the
grant to the State of Minnesota made
by that act; and upon subsequent
cancellation of such indemnity selec-
tion the grant did not attach thereto,
but the land became public domain
subject to disposition under appro-
priate laws___

6. The rule of approximation is
applicable to railroad indemnity se-
lections

7. Good administration requires
that, under ordinary circumstances,
each item of a railroad indem-
nity selection list shall be con-
sidered and disposed of as an in-
depende.it selection, unaffected by

44

98

279

1

3. Where suits brought by the
Government to cancel patents to
public lands are terminated by a
stipulation of compromise and set-
tlement entered into by both parties,
and confirmed by decree of court, in
which stipulation it is stated in
terms that it shall be a complete set-
tlement of all property rights in said
lands arising or to arise between
the parties, the acts of March 26,
1908 (35 Stat., 48), and June 16,
1880 (21 Stat., 287), are without
application, and return of money
paid in connection with the entry of
such lands will be denied, such
money entering into and being a part
of the claims settled and determined
by the stipulation and decree 116
4. Where a desert entry is canceled
in the erroneous belief that first-
year proof had not been submitted,
and upon discovery of the error two
years later the entryman is called
upon to submit second and third
year proof as a condition to rein-
statement of the entry, but takes no
action, repayment of the purchase
money will be allowed____

229

5. Abandonment of land entered
and relinquishment of the entry
rather than accept a lesser estate (a
surface patent) therein than entry-
man undertook to acquire is not a
voluntary abandonment, and the
purchase money paid may be recov-
ered under the repayment laws---- 251
6. Upon reduction of the area of a
homestead entry of Fort Peck In-
dian lands, by relinquishment of a
part thereof, there is no authority
of law under which an installment of
the purchase money paid for such
lands may be returned, but such in-
stallment may be credited to the un-
paid portion of the purchase price- 282
7. Upon reclassification and reap-
praisal of former Indian lands the
entryman is entitled to repayment of
the difference between the amount
paid and the price fixed by reap-
praisal, although during the pend-
ency of his application for reclassi-
fication and reappraisal a patent for
the land has issued___

8. Where an application for re-
payment under the act of June 16,
1880, was properly denied under the
rule then in force, and a later ap-
plication is filed at a time when
action in the Court of Claims is
barred under section 1069, Revised
Statutes, the former adjudication
will not be disturbed..

375

433

Repayment-Continued.

9. In order to secure repayment
under the act of March 26, 1908, the
requirement that neither the appli-
cant nor his legal representative
shall have been guilty of any fraud
or attempted fraud must be estab-
lished

10. Where a desert-land entry is
allowed upon a showing as to the
proposed plan of irrigation, notwith-
standing the fact that the Govern-
ment had prior thereto appropriated
the water supply in question because
of which the entry is reliquished, re-
payment of the purchase money paid
on such entry is warranted on the
ground that it was erroneously
allowed
Reservation.

See Military Reservation; Na-
tional Forests; Right of Way, 7.
Residence.

See Absence, Leave of; Allotment,
7; Citizenship, 6; Contest, 7, 9, 11;
Homestead (Enlarged), 14, 16; In-
dian Lands, 11; Judicial Restraint;
Marriage; Military Service.

1. Regulations of October 4, 1917,
suspending residence requirements
on reclamation projects during war
with Germany

2. Land segregated from the public
domain, whether by patent, reserva-
tion, entry, selection, or otherwise,
is not subject to settlement or any
other form of appropriation until its
restoration to the public domain is
noted upon the records of the local
land office___.

3. So much of the decision in the
case of Sarah V. White (40 L. D.,
630) as holds that land restored to
the public domain as the result of
vacation of patent thereby becomes
subject to settlement, if unappropri-
ated, is overruled_.

Revised Statutes.

See Table of, page XXV.

Right of Way.

1. Administrative ruling as to ap-
plications for reservoirs and canals
in conflict with approved rights of
way

Page.

433

440

213

121

55

56

418

2. The act of December 19, 1913
(38 Stat., 242), granting to the city
and county of San Francisco right
of way over and through the Yo-
semite National Park, the Stanislaus
National Forest, and certain public
lands for a water supply, hydroelec-
tric power, and other purposes, ex-
cepted from its force and effect, as to
certain things, "lands upon which
homestead, mining, or other existing
valid claim or claims shall have been
filed or made, and which now in
law constitute prior rights to any
claim of the grantee." Held, that
the rule ejusdem generis applies, un-
der which the class of claims ex-
cepted is limited to claims of the
same general character as those spe-
cifically mentioned in the act, and
that consequently a prior ungranted
application for a license for a right
of way over such lands does not come
within the scope of the exception.-

3. An unapproved application, un-
der the act of February 15, 1901 (31
Stat., 790), for a right of way over
public lands for power purposes, is
not a bar to a grant, subsequently
made, of a conflicting right of way.
over such lands.

4. There is nothing in the lan-
guage of section 11 of the act of
December 19, 1913, which even by
inference repeals existing statutes
requiring approval by the Secretary
of the Interior of applications for
rights of way as a prerequisite to
the use of public lands for reser-
voirs and other means for power de-
velopment, citing State of California
v. Deseret Water, Oil & Irrigation
Co. (243 U. S., 415) -

5. A grant of rights of way under
section 4 of the act of February 1,
1905 (38 Stat., 628), for the con-
struction and maintenance, in na-
tional forests, of dams, reservoirs,
water conduits, water plants, etc.,
for municipal purposes, is not con-
fined to municipal corporations, but
may be obtained by citizens or pri-
vate corporations for the purpose of
furnishing water for municipal pur-
poses or the operation of mining or
milling works not their own------- 240
6. An amendment of its map to
include additional lands necessary
for the protection of its water sup-
ply is such a change of location as
may be made by the city and county
of San Francisco, Cal., at any time
prior to the completion of the work,
under the first proviso to section 2
of the act of December 19, 1913
(38 Stat., 242)__

377

7. Under the proviso of the act of
Congress of August 30, 1890 (26 Stat.
at L. 391, ch. 837), requiring that all
patents for lands thereafter taken up
under any of the land laws of the
United States should contain a reser-
vation from the lands granted of a
right of way for ditches or canals
constructed by the authority of the
United States, it was the duty of the
Land Department of the Government,
in issuing a patent to the Southern
Pacific Railroad Co. for indemnity
lands under the act of July 27, 1866
(14 Stat, at L. 292, ch. 278), which
lands were selected by that company
after the passage of the act of 1890,
to insert in the patent a reservation
from the lands thereby granted of
such a right of way..

8. A railroad right of way and sta-
tion grounds, employed for railroad
purposes, across land embraced in a
homestead entry, are no bar to the
issuance of final certificate and pat-
ent upon the entry, although such
right of way and station grounds are
occupied for other than railroad pur-
poses by persons claiming under the
railroad company-.

Riparian Rights.
See Survey, 1.

School Lands.

See Reclamation, 3; Settlers, 2.

1. Until approval by the Secretary
of the Interior, no equitable title or
vested right accrues under an in-
demnity school-land selection, not-
withstanding performance of all that
the law and regulations require of
the selector; and the Secretary is
without authority to approve a se-
lection of mineral land

407

429

34

2. Certain forms of disposition
and certain classes of pending claims
are specifically excepted from the
force and effect of any withdrawal
under the act of June 25, 1910 (36
Stat., 847), but a school-land in-
demnity selection is not so excepted. 34
3. Mineral lands do not pass to the
State of Wyoming under its school
grant, either by virtue of the act of
July 10, 1890 (26 Stat., 222, 224), or
the act of February 28, 1891 (26
Stat., 796)

4. A discovery of a valuable min-
eral deposit subsequent to the tender
of an indemnity school-land selection
but prior to approval thereof by the
Secretary of the Interior defeats the
selection

5. The case of Cosmos Exploration
Co. v. Gray Eagle Oil Co. (190 П. S.,
301) was not overruled or modified

34

34

8. Public lands granted to the
State of Utah by section 12 of the
act of July 16, 1894, are not affected
by the provisions of section 2449,
United States Revised Statutes_____ 185
9. A State selection of record,
even though unapproved and invalid,
bars allowance of an application to
make entry of the land selected____ 185
10. An application to make entry
of land embraced in a State selection
confers upon the applicant no right
to attack it either before the Land
Department or the courts; and there
being no statutory right of contest
against a State selection, no prefer-
ence right of entry inures to one
who procures its cancellation_____.

11. The provision in the act of
February 28, 1891, supra, that a
State or Territory may select other
sections of public land in lieu of
school sections otherwise disposed
of by the General Government, and
that "such selection shall be a
waiver of its right to said sections,"
does not warrant a construction that
such "waiver" of the base lands is
tantamount to the vesting of fee
simple in the United States to the
lands so waived, prior to the ap-
proval of the selection by the Depart-
ment

12. The Department's approval and
certification of lieu lands selected by
a State are necessary prerequisites
to the vesting of title to such lands
in the State, and, conversely, title to
base lands tendered by the State in
support of a lieu selection does not
vest in the United States until ap-
proval of the selection, there being,
in fact, no selection until the ap-
proval is executed on the part of the
Department..

13. Only upon approval of a State
selection does the doctrine of relation
become operative, and under it the
right of the State relates back to the
date of filing of the selection and is
superior to claims asserted subse-
quent to the filing of the selection
and prior to its approval-----

14. Under sections 2275 and 2276,
Revised Statutes, as amended by the

185

218

218

218

16. By the terms of section 2275
of the Revised Statutes as amended
by the act of February 28, 1891,
where unsurveyed school sections are
embraced within a reservation, it is
unnecessary that they be identified
by the public survey as a prerequi-
site to acceptability as base for lieu
selection by the State, protraction
or other method approved by the
Secretary of the Interior sufficing-- 396

17. Certain unsurveyed lands in
New Mexico reserved for Indian pur-
poses, and upon which were located
several fourth section Indian allot-
ments, were tendered by the State as
base for a lieu selection. Held, That
such lands were acceptable base, al-
though it had not been determined
whether they would be permanently
reserved for Indian purposes‒‒‒‒‒‒‒ 396

18. Where at the date of filing a
school indemnity selection it appears
that the tract involved is subject
thereto, a prior settlement long aban-
doned, even though because of errone-
ous advice, is not such an appropria-
tion as will prevent the selection
from attaching, nor afford any valid
ground for the former settler's re-
lief under a homestead application
subsequently filed___

1. Where an application for the
location of Sioux half-breed scrip
recited that such scrip was located
on the land described "in satisfac-
tion of the attached certificate or
scrip," and the patent issued recited
that the certificate was surrendered
"in full satisfaction" for the land
described, the locator has waived his
right, if any existed, to any excess
representing the difference in quan-
tity between the land received and
that called for by the scrip-----

2. Neither the law nor the prac-
tice of the Department authorizes
the relocation of Sioux half-breed
scrip to the extent of the excess of

494

29