Application-Continued. I. GENERALLY-Continued. To enter can not be allowed for land embraced within an existing railroad indemnity withdrawal. XII-27; XX-462 Rejected on account of railroad indemnity withdrawal, may be allowed, when the withdrawal is revoked, as of the date when the land was opened to entry. VI-309, 378; VII-241 Rejection of, for lands withdrawn for railroad purposes does not preclude the settler from making entry thereof on the subsequent restoration. XIV-525 To enter a tract "listed as railroad land," and rejected for that reason, and pending on appeal, will attach at once, as of the date of the application, on the cancellation of the list as to said tract. XXI-109 To enter can not be accepted for land embraced within a prior railroad indemnity selection. XII-386 To enter lands formerly embraced within the withdrawal for the Marquette, Houghton and Ontonagon road may be accepted for lands covered by unapproved selections, subject to the claim of the company. XIII-56 To enter lands embraced in the order restoring to entry lands certified for the benefit of Bay de Noquet grant confers no right if filed before the day fixed for such restoration. XVI-332 To make entry of land within a pending rejected indemnity selection may be allowed on a record showing of a prima facie prior settlement right (and where the company declines to furnish the requisite basis for a hearing), and the conflict remain for determination on offer of final proof or under the selection. XIV-79 To enter land covered by the claim of another is not recognized as the initiation of a contest against said claim. XV-415; XX-135 To make homestead entry can not be allowed for land covered by a school selection. X-263 To make entry of land covered by an illegal school indemnity selection should not be allowed, but taken as an attack upon the selection. XV-549 To enter barred by invalid school selection; but as the application. is in the nature of an-attack upon such selection it may be allowed on the cancellation of the selection. VI-439 To enter, presented after a school indemnity application, but prior to its allowance, may be noted of record and take effect as of the date presented if the claim of the State fails. XIV-72 To enter land involved in a contest must remain in abeyance until final disposition of the contest. IX-578 For land covered by prima facie void entry should be held till the status of the entry is settled. III-181; IV-448 Application-Continued. I. GENERALLY—Continued. To enter should not be allowed during the pendency of a charge affecting the good faith of the entryman. X-402 To enter land certified to a State under a railroad grant will not be entertained. X-575 To enter lands covered by unapproved railroad selection, procedure in case of. X-504 To enter, made pending appeal from the rejection of a former application, is in effect a waiver of the first. IX-29 To enter rejected by final decision of the Department is res judicata, and can not be reinstated with a view to its allowance under a changed construction of the law. XIX-459 The tender and rejection of, can not operate to deprive the claimant of his right to again present his application for proper action thereon. If rejected, rights thereunder can only be saved by appeal. XIX-547 III-473; XIII-250, 365. Instructions with respect to the proper procedure in case of rejected, or amendment thereof after rejection. III-119 To enter properly rejected, and pending on appeal, does not oust the local office of its jurisdiction over a subsisting entry of the land involved. XIX-442 Failure to appeal on rejection of, does not defeat the right of the applicant if the requisite notice in writing of such adverse action is not given the applicant. v-377; XI-191; XVI-111; XVIII-6; XXII-576 If rejected, the applicant should be informed of his right of appeal; and in the absence of such information, failure to appeal will not defeat the subsequent right of the applicant to be heard. v-377; XII-235, 684 The failure of an applicant for a tract of land to appeal from adverse action of the local office will not be held to prejudice his rights where such action is not indorsed on the, and the applicant notified of his right of appeal. XXII-630 The time within which appeal may be taken from the rejection of, is limited by the notice of such action, and not by the action itself. XIII-598 Failure to appeal from rejection of, will not bar a subsequent assertion of priority where such failure is due to erroneous information received from the local officers as to the record status of the land. XII-550 Failure to appeal from rejection of, will not preclude subsequent assertion of priority where at the date of such action the title to the land was erroneously believed to be not in the United States. XVI-368 Application-Continued. I. GENERALLY-Continued. Failure to appeal from the rejection of an application to file a declaratory statement defeats all rights that might have been secured thereunder, and such failure is not excused by the fact that the title to the land was erroneously believed to not be in the United States. (See 16 L. D., 368.) XVII-494 XX-459 An applicant who fails to appeal from the rejection of, loses all rights; nor can the heir of such applicant be heard to subsequently assert any claim thereunder. Failure to formally appeal from the rejection of, will not defeat the right of an applicant who by his subsequent diligence secures an examination of the record. XX-550 On appeal from rejection of, the applicant need not serve notice upon other applicants for the same tract where the question is solely between each applicant and the government. XIII-392 On appeal from rejection of, the applicant is not required to serve notice on a subsequent applicant for the same tract. XVI-285 Appeal from the rejection of, will not be entertained in the absence of notice to adverse claimant of record. XI-621; XVII-325; XIX-482 The local office has no authority to stipulate that a rejected, shall be held in abeyance, without appeal, to await departmental action in a similar case. XIII-250 Appeal from the rejection of, does not operate to save or create rights not secured by the application itself. XIII-502 An appeal from the rejection of, on the ground that the existing entry then covering the land is invalid, confers no right upon the applicant where said entry is under investigation by the Department. XIII-386 Failure to make written, held without prejudice on account of erroneous advice of the local officers. I-151 Rights of an applicant not prejudiced by mistake of the local office. XI-191 To enter not defeated through the failure of the local office to note of record an order canceling a former entry of the land applied for. XII-643 Corroborated affidavits showing the filing of, may be accepted as conclusive, where the records do not disclose the fact of such filing, nor tend to contradict the showing made by the applicant. XVII-53, 279. Made in due compliance with existing regulations is not prejudiced by a subsequent change of regulations, made prior to action on said application, especially where the applicant complies with the later construction of the law when notified thereof. XII-297 Application-Continued. I. GENERALLY-Continued. To enter is not affected in its legal operation by the second application of the same party. XIII-56 To enter not required for the protection of a settler as against an adverse entryman, where the settler, within three months after settlement, applies to contest such entry, alleging his own priority. XVI-266, 270; XVII-345 II. AMENDMENT. See No. VIII; Entry; Filing, sub-title, Amendment. To amend an entry reserves the land covered thereby. II-43; III-156; IV-365; v-149; VI-264; XII-558; XV-579 To amend a filing protects the preëmptor as against intervening claims, and if granted relates back to the date when it was made. IX-139 To amend a filing takes precedence over a subsequent filing by another for the same land. VII-324 To amend a filing will protect the applicant as against the subsequent settlement of another. IX-98 The right to amend not to be abridged by technical rules. III-429 Of homestead, irregular because executed while land was appropriated, allowed (there being no adverse claim). II-270 The right to file an amended affidavit, showing qualification to make entry, will not be defeated by the pendency of a contest, where the contestant is not qualified to take the land in the event that he secures a judgment of cancellation. XIX-282 An amendatory, or supplemental application to enter, filed under a practice of the local office that called for such action, will not be regarded as an abandonment of rights secured under the original application. XVIII-486 Where found irregular in form, and returned to the applicant for correction, should be regarded by the local office as pending for a reasonable time, and excluding, during said period, other applications for the land. XXI-60 Timber culture, erroneous in form (naming wrong act) and returned for correction, takes effect as of the date upon which it was first received. II-44 Timber culture, may not be altered or amended by an attorney so as to include a different tract. II-261 For public land should be rejected if defective when presented; and the right of the applicant, in such case, to thereafter perfect his application can not be recognized in the presence of an intervening adverse claim. 1-164; XIX-37 A change in the description of the land included in, pending final action thereon, is subject to intervening settlement rights. IX-302 To amend an entry does not excuse the claimant from compliance with law while pending. V-349 Application-Continued. II. AMENDMENT-Continued. III-120 When an application is rejected for defect the applicant may amend or appeal, but can not do both, and in neither case can the land be reserved awaiting such choice of action. Coal land, improperly made by an agent, may, in absence of adverse filing or complaint, be made nunc pro tunc. III. DESERT LAND. Is the initiation of the claim. II-735 VI-541 To make desert entry, accompanied by the purchase money, segregates the land. V-694 For desert-land claim, either under the Lassen County act or the general law, exhausts the right of the claimant. XVIII-99, 580 If in accordance with existing regulations, should not be rejected because not in conformity with later requirements. VIII-408 To make desert entry can not be allowed while the land is covered by a previous timber-culture entry of the applicant. X-541 To make desert entry must show that the applicant's knowledge as to the character of the land is derived from a personal examination of the same. VII-312; VIII-96; XIII-21 Based on preliminary papers executed before a deputy clerk outside of the county in which the land is situated, can not be accepted; but the applicant may file a new affidavit, subject to intervening claims. XVIII-364 Declaration, and affidavits therewith, made outside of the county in which the land is situated, are invalid and can not be accepted. XX-482 Can not, under the act of May 26, 1890, be executed before a commissioner of a circuit court outside the county in which the land is situated. XVI-271 A desert-land declaration may be executed before the judge of a county court. XIX-160 The preliminary affidavits of an applicant for desert entry and his witnesses must be made at the same time and before the same officer. XIII-21 Personal inspection of the land prior to desert land, confers no rights as against other applicants or settlers. XIII-207 To enter desert land that is covered by the entry of another is not a claim protected by the act of August 30, 1890, and on the subsequent cancellation of such entry the applicant will be restricted to an entry of 320 acres. XIV-636 Desert land, irregular in the matter of initial payment, received and marked "filed," must be treated as allowed so far as to protect the claimant against the limitation of acreage by the act of August 30, 1890. XIV-551 |