Must be proved affirmatively by a contest- ant alleging it..
Voluntary, in the face of an adverse claim which might have been successfully con- tested, exhausts the pre-emption right..... 573 Voluntary, on erroneous information given by the local officers (regarding effect of a railroad grant), makes the land public..474, 570 Where decedent's father, the sole heir, never lived on or cultivated the land, and permitted a removal of the improvements, the land was abandoned......
It is competent to show that an abandon- ment was occasioned by duress
Where A left the land, and B made set- tlement, and, without cultivating or estab- lishing residence, also left it for three months, during which period A returned, and thereafter complied with the law, A's right is superior....
Sale of improvements is evidence of...... The acts of the husband are the acts of his wife, his neglect her neglect, and his abandonment her abandonment....
Only the wife shall be heard to show her husband's desertion of her in proof of aban- donment, for seven years after his entry... 81 Absence of entryman for five months prior to contest working at his trade, with occa- sional returns to the land, and a quit-claim deed to a third person, which appears to have been a mortgage, and a relinquish- ment, executed but not filed, are, in view of other evidences of good faith, not proof of abandonment ...
Question of abandonment under Sec. 2297, R. S., was an issue between the government and the settler; on proof of, the land re- verted to the United States; this was changed by Sec. 2, Act of May 14, 1880, which gave a preferred right to the successful con- testant of an entry
Is admitted if, after a relocation applica- tion alleging it, the original locators fail to adverse; if adverse claim is filed, the ques tion is a proper one for the courts OREGON DONATION.
The settler alone represents the claim; his abandonment is the abandonment of his wife, his neglect is her neglect..
Required by Sec. 2262, R. S., may be made before a probate judge in Dakota acting as clerk, when at the county seat where the court is holden......
Required by Sec. 2262, R. S., must be made before the register or receiver, but if inade before a clerk may be cured by a supple- mental affidavit
One who swears falsely in the premises forfeits the money (supreme court scrip) paid for the land, and also all right and title to the land itself
As to effect of false swearing, see, also, Fraud.
Made under Sec. 2294, R. S., is for the protection of the settler's claim against strangers; if executed prior to, but re- ceived at the local office subsequent to, a private entry, the settler has priority of right to the land...
Declaration of deceased husband or father is the declaration of the widow or children; the citizenship of the husband or father is the citizenship of the wife or children..... 611 Daughter of an alien, deceased, who was
a minor when her father declared his inten- tions, may exercise right of pre-emption ... 611 The son of an alien, living, whose father has only declared bis intentions, and who was a minor at immigration, is not qualified to make entry without having filed his own declaration of intentions; entry made by him must be canceled....
Settlement and filing before declaration of intention are of no legal effect; where filing is so made, a subsequent settlement, after declaration of intention, will support the filing in the absence of an intervening ad- verse claim...
The minor daughter (nineteen years old), continuing in person or by proxy to culti vate and reside on land entered as a home- stead by her father (who had filed his decla- ration of intention, but had not obtained a certificate of naturalization), may by herself or guardian make final proof, upon filing ev- idence that she has taken the oaths pre- scribed in Sec. 2168, R. S
Alien heirs of a homestead entryman may purchase under Sec. 2, Act of June 15, 1880......
Applicants, alien born, must accompany affidavits with record proof that they have declared their intention to become citi zens.......
A declaration of intention by the entry. man, who dies before being fully naturalized, is equivalent to a declaration by his widow or minor children...
An alien immigrating during his minority, and remaining until after his majority, must file a declaration, under Sec. 2165, R. S., or comply with the requirements of Sec. 2167, R. S., before being qualified for entry.
An honorable discharge from the United States army is equivalent to a declaration of intention
May declare his intentions, make timber- culture entry, and absent himself from the country for two years or more without for. feiting the entry, provided that he returns and that the law is complied with.......... 251 Applicants alien born must accompany their affidavits with proof that they have declared their intention to become citizens. 194 Who innocently made entry, which was canceled for non-compliance with law, may make another after he becomes a citizen ... 250 DONATION.
Where alien claimant having declared his intentions, died before naturalization, his possessory right descended to his heirs and patent properly issued to them; application by purchasers at administrator's sale to can- cel patent denied...
Of pre-emption, homestead, and other rights to land, see Abandonment and Fraud. Of improvements, see under Public Land.
Amendment.
OFFICIAL NEGLECT OR ERROR.
For rulings, see under Land Department. APPLICATION.
Allowed after contest commenced, where the tract was by mistake entered as an orig. inal instead of an adjoining farm homestead. 38 Where settler entered the wrong tract by mistake, and failed to reside on either tract by reason of his wife's sickness, he may amend so as to embrace the tract originally selected if no adverse rights have mean- while attached to it
Where one enters a tract by mistake and intentionally settles on and improves another tract, prior to act of May 14, 1880, he must amend his entry before intervention of a valid adverse right (pre-emption settlement and filing)..
Where amendment is authorized, sixty days only are allowed for making it...... 206 Allowed for adjacent land whereon the entryman had accidentally cut timber..... 808 An amended entry founded on a misrepre sentation of the facts should be canceled... 576 As to change of entry, see under Entry. TIMBER-CULTURE ENTRY.
Refused, where another entry on the land had been allowed; but in view of the equi. ties a second entry is permitted.........
Entry was held for cancellation in May 1879 because of illegality, in that it em- braced lands in Sections 14 and 23, with privilege of amending by including a con- tiguous tract in either section, but neither appeal, cancellation, nor amendment was made; in July 1879 a railroad withdrawal embraced Section 23, and in 1880 the entry- man made a new entry including the tract originally entered and a contiguous tract in Section 23; held that the second entry was an amendment of the first and valid ....... 852 CONTEST PAPERS.
The liberal policy of the several States in respect to amendments in judicial proceed- ings will be recognized and adopted by the Land Department, in so far as the amend ment does not affect rights......
A motion to dismiss for informalities in the affidavit should be granted, or amend- ment allowed... ...217, 221
The omission to file an application for the land in a timber-culture contest may be remedied prior to or at the hearing, if no other right has intervened...........296, 319 Where affidavit (against timber-culture entry) is executed prematurely, but filed at the proper time, it may be amended...............
In relation to, see under Contest.
Application.
DILIGENCE.
See Diligence and Negligence.
OFFICIAL ERROR OR NEGLECT.
For rulings, see under Land Department. BY CITIZENS.
For questions concerning, see Alien. AMENDMENT.
For rulings, see Amendment. PRE-EMPTION.
With check for fees, will not bar a subse-
quent application with payment of fees in money (filed on the same day)...
With tender of fees and commissions may be perfected by the heirs (widow) after ap- plicant's death...
Denying that land is timbered, must be received subject to satisfactory proof of the facts........
Where accompanying affidavit shows but a hundred, or a half acre of, trees confined to the margin of a stream, and the plats show a sparse growth of timber, the application must be accepted, subject to satisfactory proof of the character of the land..
Is not barred by a pending contest which is illegal (without application for the land, or with application to pre-empt), or void on its face (alleging failure to cultivate the first year after entry). ........248, 259, 282, 293, 297 MINERAL.
For a lode patent is barred by entry (lode) dormant and uncanceled for seven years For placer is barred by a homestead en- try of record, until after a hearing on the character of the land....
For special rulings under the mining laws, see Mining Claim.
Misleading information by, upon which claimant took possession of and improved a tract, without initiating a legal claim to it, will not avail against an adverse claimant.. 56 Acting for entryman and for adverse claimants, and also endeavoring to secure the land for himself, will be disbarred...... 62 Disbarred from practice before the Land Department, will nevertheless be recognized as a notary public.........................
Whether a power of attorney given to an attorney while disbarred may be used after his reinstatement, quære
For rulings concerning, see under Entry. Certiorari.
In relation to, see under Contest. Circulars.
August 26, 1876, cited; entries by officers and employés of the Land Department..... 754 March 12, 1877, cited; desert lands; want of harmony (as to assignability of claims) with decisions pointed out
January 8, 1878, cited; time of executing homestead and timber-culture applications and affidavits
October 1, 1878, cited; saline lands....... July 1, 1879; entry on possession of a bona-fide settler is invalid; contestant should be protected when acting under its authority if in force at date of initiation of the contest.......
June 16, 1880, cited; applications for re- payment under Sec. 2, Act of June 16, 1880.. 661 July 17, 180, cited; insane settlers August 6, 1880, cited; repayments.
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