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Transit Company), that it should have been
kept on file, and proof of the authority of the
State otherwise obtained, and that it oper-
ated as a legislative withdrawal................

The lines of the South and North Alabama
Company (successors) were definitely fixed
on May 30, 1866, between Decatur and Cal-
era, and on July 26, 1871, between Calera and
Montgomery, the dates respectively when
maps of definite location were filed in the
General Land Office, notwithstanding the
fact that the granting act did not require the
filing of such maps.............

The map of definite location of the Central
Pacific Company was received and approved
by the Secretary October 20, 1868, upon
which date its right attached, and not, as
heretofore held, on July 18, 1868, the date of
the adoption and certification of the map by
the officers of the company..

The line of the Dubuque and Pacific (now
Iowa Falls and Sioux City) Company was
definitely fixed October 13, 1856, the date of
acceptance by the Secretary of the map of
definite location, and not at date of survey
in the field, as heretofore held..

561

484

488

483

The line of the Saint Vincent Extension
of the Saint Paul and Pacific (now Saint
Paul, Minneapolis and Manitoba) Company
became definitely fixed on December 19,
1871, when the map of definite location was
accepted by the Secretary, and not at date
of survey in the field, as formerly held..... 481
CONFLICTS.

GRANTED LANDS.

The act of July 1, 1862 (Pacific roads)
granted "public lands," but defined them as
those lands which were public at date of
definite location of the roads

Land within the granted limits of the road
(Saint Paul and Pacific, now Saint Paul,
Minneapolis and Manitoba), which was
covered by an entry (homestead) subsisting
at date of the grant, was excepted from said
grant..........

Where a subsisting entry (homestead) ex-
cepted the land from the grant, upon its
cancellation thereafter (for failure to make
final proof) the land became public, and sub-
ject to entry or selection by the first legal
applicant...

Where entry was made on the same day as
that on which the right of the company
(Saint Paul, Minneapolis and Manitoba) at-
tached, the entry man acquired the superior
right...

An entry (homestead) of record when the
State conferred the grant on the company
(Hastings and Dakota), though allowed
after withdrawal, excepted the land from
the grant

Where the tract was covered by a pre-
emption filing at date of the grant (Texas
and Pacific) and withdrawal (on preliminary
line, the burden rests upon a subsequent

480

501

505

570

540

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Where a pre-emption right was extin-
guished on the day of public sale (1858), but
the pre-emptor was still maintaining settle-
ment, etc., at date of definite location (1863),
the tract was not excepted from the grant
(Central Pacific)

Entry (timber-culture) was made in 1878,
embracing land in Sections 14 and 23, and
held for cancellation in May 1879, with
right of amendment so as to locate the entire
tract in either section, but Lo actual cancel-
lation was made, or appeal taken, or amend-
ment offered; withdrawal for the road
(Northern Pacific) was made July 1879, em-
bracing Section 23, and in 1880 the entry-
man made a second entry (including one-
half of the land covered by the first entry)
of land within Section 23; held that said sec-
ond entry, being an amendment of the first
entry, was valid.....

550

525

852

A donation claim (New Mexico) void on
its face (showing settlement subsequent to
the time limited) does not except the land
from the grant (Atlantic and Pacific) .............. 522
Where the land was reserved for the set-
tler (donation) at date of definite location
(Northern Pacific), it was excepted from the
grant

Where the tract was within the exterior
limits of a Mexican claim (Moquelamos),
which was sub judice (in the courts) at date
of the grant and withdrawal, it was not pub-
lic land and did not pass to the company
(Western Pacific) .

440

510

Where the tract was within the exterior
limits of rancho (by the La Croze survey)
at date of the grant (Central Pacific), but was
segregated therefrom (by the approved and
confirmed Stratton survey) at date of execu-
tive withdrawal and of definite location, it
was public land and inured to the grant.... 477
Where the tract was in the exterior limits
of a rancho (San José), as surveyed, at date
of filing map of designated route (Southern
Pacific), but was excluded therefrom by a
subsequent approved survey, it was excepted
from the grant

The rancho claim (Millijo, or La Punta)
was rejected finally in 1855, and application
to purchase made in 1869, under Sec 7, Act
July 23, 1866; the grant was made in March
1871, and withdrawal (on preliminary line)
in October 1871; in 1872 the sale of the land
was suspended, pending consideration of
the application, which, in 1873, was rejected;
held that the land was subject to the grant,
and reserved for the company (Texas and
Pacific), though definite location of the road
has not yet been made

INDEMNITY LANDS.

At date of the grant and withdrawal the

546

548

Page.

land was within the boundaries of a Mexi-
can claim (Diaz), which was subsequently
declared invalid, and thereafter, but before
claim of the settler (Ryan), the company
(Central Pacific) selected it; held by the Su-
preme Court that it was public land at date
of the selection, and that said selection
barred the settlement claim.....

A valid and subsisting pre-emption claim
(settlement) at date of withdrawal excepted
the tract from withdrawal........................

Where settlement (pre-emption) was made
on unsurveyed land after withdrawal, and
on survey was found to be on an odd sec-
tion, the entry allowed must be canceled;
(see also p. 551)

Land within the indemnity limits of the
road (Hastings and Dakota), which was cov.
ered by entry (homestead) subsisting at
date of the withdrawal was excepted from
the withdrawal

Where a subsisting entry homestead) ex-
cepted a tract from the withdrawal (for Hast-
ings and Dakota), on its cancellation (for fail
ure to make final proof) thereafter the land be-
came public, and was subject to entry or
selection by the first legal applicant.......

509

512

557

501

505

An entry (homestead) on the tract at date
of withdrawal (for Northern Pacific), though
the land was afterwards abandoned, ex-
cluded it from the withdrawal; on cancella-
tion of the entry the land was subject to ap-
propriation by the first legal applicant..... 506
Where pre-emption settlement was made
subsequently to withdrawal, the claim may
remain, subject to the right of selection by
the company (California and Oregon)
...... 512
The practice of allowing pre-emption
claims or homestead entries on lands with-
drawn for railroads, subject to final ad-
justment of the grant, is forbidden; (circu-
lar)
...513, 517, 558, 560

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Where the company (Atlantic, Gulf and
West India Transit, now Peninsular) relin-
quished certain granted lands in 1875 and
1881 in favor of actual settlers, they cannot
be heard to object to the patenting of the
settlement claims on said lands

.531, 564
Relinquishment may be made only where
the filing or entry (granted limits) was made
under the pre-emption or homestead law, not
of land covered by a timber-culture entry.. 528
Where relinquishment of granted land and
lieu selection were made after definite loca-
tion, but before the road (Northern Pacific)
was completed opposite to the tracts relin-
quished, said selection, of record, barred sub-
quent claim (additional homestead)

A relinquishment under act of June 22,
1874, may not be made of a tract (indemnity
limits) prior to its selection; where entry
(homestead) was allowed after withdrawal,
if, when the tract is selected, it appears that
it is needed to satisfy the grant, relinquish-
ment and lieu selection will be allowed to
the company (Hastings and Dakota).................
CONFIRMATION.

530

527

Sec. 2, Act of April 21, 1876; three facts are
prerequisite to title thereunder, viz: 1, a
valid claim existing at date of the with-
drawal; 2, re-entry under decisions and rul-
ings of the Land Department; 3, final proof
must show full compliance with the law... 500

Sec. 3, Act of April 21, 1876; entry (home-
stead) was made within the conflicting limits
of the Coosa and Tennessee and the Wills
Valley portion of the Alabama and Chatta-
nooga Railroads; no portion of the former
road has been completed, and the entry was
made after expiration of the time for com-
pleting the latter road and prior to the ex-
tension granted by act April 10, 1869; held
that it is confirmed.............
RIGHT OF WAY.

500

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For value, about a month after entry (tim-
ber-culture), is proof of fraudulent inception 92
Must be intentionally and voluntarily
made; one made through misrepresenta-
tion and deceit is void...

Obtained while the entryman (timber-cult-
ure) was in a drunken stupor is fraudulent;
application for reinstatement of entry is al-
lowed.....

The failure of a contestant to pay to the
claimant (pre-emption) an alleged contract
consideration for his relinquishment, duly
filled, will not be considered.........

Filed with an application to enter, re-

135

325

621

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Held for examination and found valid, re-
lates back to date of its filing, and the appli.
cation with ti is the first legal application.. 324
Transmitted by mail, is to be regarded as
filed at the moment it was received at the
local office (9 a. m.), though the letter trans-
mitting it was not opened for some time aft-
erwards; timber-culture application accom.
panying it is to be similarly regarded.............. 326
Purchase of, gives no rights against the
United States

Of a timber or stone claim prior to final
proof, confers no right on the party obtain-
ing and filing it.

On relinquishment of a homestead entry,
the settlement of a prior settler, applying
for homestead entry seven days after the
relinquishment, takes effect under Sec. 3,
Act of May 14, 1880

Of land covered by a pre-emption filing is
a waiver of claim under the filing, and there-
upon another's settlement made prior to the
relinquishment takes effect

133

333

117

620

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Filed after closing of a case in the local
office does not affect status of the parties.. 282
Executed by entryman's father as agent,
and left with him for subsequent filing, but
not filed until after the entryman's death;
the law casts the homestead right on the
widow, who was entitled to the land, unless
she actually or constructively ratified the
relinquishment; ratification may be shown
by failure to take possession of or improve
the land, or give notice to the government
of her intention to claim it, and by silence
whilst another begins settlement and im.
provement

Repayment.

Fees paid on homestead or timber-culture
entries, canceled for conflict or because they
have been erroneously allowed and cannot
be confirmed, will no longer be credited upon
new entries, but will be repaid on proper ap.

138

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Of fees and commissions allowed where
entry (timber-culture) could not be amended
because of intervening adverse rights...... 255
Where lands are purchased at double mini-
mum while within the granted limits as fixed
by the general route, and are afterwards left
outside of said limits by the definite loca-
tion, repayment of excess may be made.... 676
Where selections were made by the rail-
road company (North and South Alabama)
under act of June 22, 1874, but rejected be-
cause the odd sections whereon based were
disposed of before definite location, repay.
ment of fees and commissions may be made. 681
Where the local officers erroneously sold
double minimum land at the minimum price,
and on demand the purchaser declined to
pay the additional price, since entry was
erroneously allowed and cannot be con-
firmed, he may have repayment on compli-
ance with circular requirements.....

679

Certain lands (San Francisco district) were
withdrawn for a railroad (Central Pacific),
but were rejected from the grant, and prior
to restoration were embraced by another
grant (Southern Pacific), but were rejected
from it also; the odd sections were ordered
to be sold at minimum and the even sections
at double minimum, and the applicant bought
at the double minimum price; he cannot
have repayment......
.....679, 680
There is no provision for the repayment
of the excess where the lands, reduced by
Sec. 3, Act of June 15, 1880, were subse-
quently sold at double minimum price...... 677
Of the excess over minimum paid for rail-
road lands which lie within the exterior lim-
its of a grant (Northern Pacific), but which
do not pass by it because they form part of
a reservation (Bitter Root Valley), is not
within the intention of the relief provided by
the act of June 16, 1880..

675

There is no authority for repayment of
moneys deposited, under Sec. 2356, R. S., in
in excess of the cost of the land purchased. 659
Of the bonus voluntarily paid for an entry
(timber-culture), where two or more appli-
cations were simultaneously made, and the
preferred right of entry was put up at auc-
tion, is denied
.687, 688, 689

Where a person was misled as to the char-
acter of the land by a private survey, and
relinquished his claim (desert-land), as re-
sponsibility for the mistake does not rest on
the government, repayment is denied..................... 694

Page.

Where one, who on filing application fur-
nished proof of desert-land character, re-
linquished the tract voluntarily, and asked
repayment on the ground that it was not
desert-land, he is estopped by his proofs from
denying its character; repayment denied .. 633
Where a desert-land applicant failed for
three years to comply with the requirements
of the law (reclamation, alleging inability to
obtain water), and relinquished voluntarily,
repayment of the purchase-money (first in-
stallment) is denied

Where the entry (commuted homestead)
was canceled for laches or fraud of the entry.
man, exhibited in his final proofs, repayment
of purchase-money is denied

The law authorizing repayment does not
provide for return of the money to persons
who have voluntarily abandoned or relin-
quished their entries

Where hearing was ordered on allegations
impeaching the good faith of the entryman
(pre-emption), and, on default by him, the
entry was canceled on the evidence, repay-
payment is refused...........

Where a pre-emptor had made final proof,
and (it transpiring that he had also made a
homestead claim during the life of his pre-
emption) afterwards relinquished it, since
the entry was not canceled through fault
of the government, repayment of purchase-
money is denied.................

Where the entry was a second entry (tim-
ber-culture) and illegally made, but at date
thereof the local officers were ignorant of
the prior entry, repayment of fees and com.
missions is refused.

691

686

692

600

684

682

Where there was no error on the part of
the United States, and the entry (pre-emp
tion) was allowed on false proofs, the entry.
man, or his witnesses, swearing falsely that
he had not removed from land of his own, re-
payment of purchase-money is refused...683, 685
The act of June 16, 1880, does not contem.
plate repayment where the entry (indemnity
scrip location) was founded in fraud (deliv-
ery of scrip to one whose claim was without
right), even though the assignee was igno-
rant of the fraud

Where the entry (pre-emption) is cancel
ed for false swearing in the final proofs, re
payment of purchase price (Supreme Court
scrip) will not be made
Reservations.

IN GENERAL.

Lands constituting government reserva-
tions are not subject to pre-emption or home-
stead claims, and upon relinquishment are
regarded as a distinct class of public lands;
it has been customary, when Congress in-
tended to open them to entry, to express
such intention plainly; otherwise they are
subject only to appraisal and sale; (sce, also,
p. 521)

The theory of the appraisal before sale of

429

598

60%

Page.

these lands is that time enhances their value
by the increase of population around them.. 610
No mere de facto reservation or appropria-
tion can defeat the rights of qualified claim-
ants to the public land

Are created by law or order, and not by
mere markings on the official plats, whether
of saline, swamp, mineral, or timbered lands;
qualified claimants have the right to claim
them, and to show that they are not of the
character indicated

The failure of the plats to show the saline
character of a tract does not subject it to
entry; it is reserved by the law, and not by
markings on the plats...

Unlawful settlement on abandoned reser-
vations (military) is trespass......................
INDIAN.

Klamath River, California, has been main-
tained since passage of act of April 8, 1864;
when selections for the Indians within it
are made, the question of restoring the re-
maining lands to the public domain will be
considered

Fort Berthold, Montana and Dakota, made
by executive order May 12, 1870; the greater
part fell into a prior withdrawal for the
Northern Pacific Railroad by executive or-
der of July 13, 1883, restoring it to the public
domain; no rights by settlement were ac-
quired in it...

Crow Indian, Montana; the Indian title
was confirmed, not acquired, by the treaty
of 1868; the Northern Pacific Railroad may
not take materials for construction from it,
because it was not public land at date of the
grant.....

Bitter Root Valley, Montana, above the
So-So Fork, did not pass to the Northern
Pacific Railroad; under act of June 15, 1872,
but fifteen townships were to be sold at min-
imum price; the price of the remainder
should be fixed at double minimum

......

Ute (Uncompahgre and White River), Col-
orado, opened by act of July 28, 1882, with
saving of rights of settlers in the ten-mile
strip west of the 107th meridian, which had
been mistakenly surveyed and settled on;
the act legalized the illegal occupation,
nothing more; it did not save any rights, or
affect the price of the lands.

849

847

851

822

460

520

520

675

730

Fond du Lac, Minnesota; Indians may not
cut timber on it except to improve the land,
and only after approval of their selections. 821
Kansas reserves; see Indian Lands.
MILITARY.

Fort Abercrombie, Minnesota, opened by
act of July 15, 1882; held that under the act
one who had cultivated and improved part
of a forty since 1871, though never actually
residing on it, was entitled as against one
who had begun settlement and residence in
1881, with notice of the prior occupation.... 206
Fort Saint John, Louisiana, was not re-

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Fort Brooke, Florida, duly relinquished to
the Secretary of the Interior on January 4,
1883, and plat of same sent by the Commis.
sioner to the local office; said plat, without
accompanying instructions, did not open the
land to settlers; under the law the tract, re-
duced to 148.11 acres, must be ordered into
market for appraisal and sale, and was not
subject to settlement claims......... ...603, 606
Florida; historical sketch of military res-
ervations in

Fort Cameron, Utah, though abandoned, is
not yet restored to the public domain; tim-
ber cutting on it is within the jurisdiction of
the Land Department; settlement on it is
trespass

Residence.

Compare with Abandonment.
PRE-EMPTION.

607

822

The original settlement must be followed
by occupancy as the home of the settler... 637
A failure to follow up settlement by estab
lishing a residence, divests the person of all
rights acquired by the settlement.......... 574
Pretending to occupy a shanty, near his
employer's claim, without stove or cooking
utensils, and for seven months of cold
weather occupying the house on his employ.
er's claim, is not legal residence....

A pre-emptor must reside on the tract to
date of his entry; where he made home-
stead entry on February 11 and resided on
the homestead until April 1, following date
of final proof, his application for entry should
be rejected

One sleeping on his claim in a pen, or in
the open air, and intending to erect a habit-
able dwelling so soon as his means or occu-
pation permits, maintains a satisfactory res
idence.....

Threats and other acts of intimidation by
a violent man may excuse failure to main-
tain a residence, which has been already es-
tablished in good faith

Building and occupation (peaceable) of a
house by a young man within twenty-five
feet of a house built by a young woman, dur.
ing her absence, both houses being built near
a spring, are not in themselves acts of intim-
idation

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HOMESTEAD.

602

622

624

602

630

Where entryman was absent, under act
of June 4, 1880 (as to loss or failure of crops),
he was constructively residing on the land. 29
Residence is established the instant that
a settler goes upon land for the purpose of
establishing it; that circumstances prevent

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