Application.

See Coal Land.

Circular of November 3, 1909, relating to
applications, selections, etc., covering un-
surveyed lands...........

Instructions of September 22, 1884, modi-
fied to permit applications to enter to be
received and suspended subject to the dis-
position of prior rejected applications; but
entries thereunder should not be allowed
until the prior applications have been
finally disposed of........

The elimination of one of the tracts em-
braced in an application to enter does not
constitute an amendment thereof or render
it subject to a conflicting state selection
filed subsequent to the application but prior
to the elimination....

287

458

380

In case of the death of an applicant whose
application was received during the thirty-
day preferred period accorded a successful
contestant and held subject to contestant's
right, his heirs, upon expiration of the pre-
ferred period without action by contestant,
are entitled to complete the right initiated
by the application and perfect entry there-
under in accordance with section 2291, R. S. 521
An appeal from the rejection of an appli-
cation to enter entitles the applicant to
judgment only as to the correctness of such
action at the time taken and upon the show-
ing made when the application was pre-
sented to and passed upon by the local offi-
cers; and if properly rejected when pre-
sented, it should not thereafter be allowed,
upon a supplemental showing filed with the
appeal, to the prejudice of an intervening
application filed prior to such appeal and
supplemental showing....

Approximation.

See Public Land.

Page.

The rule of approximation is applicable
to reclamation homesteads and to desert
entries within reclamation projects......... 513

Cemeteries and Parks.

General circular of August 7, 1909, relating
to townsites, parks, and cemeteries........

Citizenship.

See Isolated Tract.

One who at the date of the admission of
South Dakota into the Union was an inhab-
itant and recognized as a member of that
political community became by such admis-
sion a citizen of the United States; and his
minor children at that time residing in the
United States thereby, by virtue of the pro-
visions of section 2172 of the Revised Stat-
utes, also became citizens....

Coal Land.

92

257

Circular of September 7, 1909, relative to
protection of surface rights of entrymen.... 183
Form 4-357, relative to election to take
patent to surface rights, amended..

The term "person" as employed in the act
of March 3, 1909, includes a State; and where
lands embraced in a state selection are sub-
sequently classified as coal, the State is enti-
tled to the right of election provided by that
act..

The fact that at the date of the act of
March 3, 1909, the land embraced in a home-
stead entry had been, in a contest proceed-
ing then pending, adjudicated by one of the
tribunals of the land department to embrace
land chiefly valuable for coal, will not
deprive the entryman of the right to a patent
under that act, if otherwise within its

457

terms

576

245

536

647

Coal Land-Continued.

Page. No complete equitable interest or title vests in a State by the approval of a segregation list under the Carey Act; and if subsequent to such approval and prior to final approval of the patent list lands in the segregation list are classified as coal, the department is without authority, so long as such classification stands, to approve or patent such lands to the State, except in accordance with the act of March 3, 1909.... 508 The benefits of the act of May 28, 1908, authorizing the consolidation of claims or locations of coal lands in Alaska, can be shared only by persons who made such locations in good faith-that is, honestly and lawfully-prior to November 16, 1906, in their own interests individually, without fraud, collusion, or deceit, or any purpose to violate any provision of the law.

86

If certain agreements or arrangements named, for transferring entries to a company or corporation, were entered into by locators of coal lands in Alaska after they had made their locations in good faith and in their own interest alone, such locations may, under the provisions of the act of May 28, 1908, lawfully pass to entry and patent in accordance with the terms of said act; but if these agreements or arrangements were entered into prior to such locations being made, the locations do not come within the provisions of the act and can not be lawfully passed to entry and patent..... 86 If an application to purchase, under section 2347, Revised Statutes, is presented and accepted at a time when the land is not subject thereto, but, upon elimination of the obstacle, is prosecuted openly and regularly to completion, without objection or adverse application by another in the interval or within a time reasonably sufficient for the prosecution of such proceedings, were the earlier application not suspended or impeded by any rule or action of the land department which would be equally applicable to a later application, the first should be sustained. If, however, a later applicant seasonably after the restoration presents his application and seeks to perfect it, the first and premature application should not enjoy an unfair advantage because of priority, but the other should be preferred...................... Confirmation.

528

While the Government may prosecute investigations under proceedings begun against an entry within two years after final receipt at any time until the suspension on account thereof has been formally removed, it may not, after two years, require the entryman to furnish additional evidence of his compliance with law, unless such requirement be in furtherance of like action taken prior to the expiration of that period. 34

An offer to sell the relinquishment of an entry is not of itself a sufficient ground for contest...

The charge that the assignee of a desertland entry is disqualified to take by assign ment is sufficient basis for a contest...

Land unadapted to any agricultural use is not subject to entry under the homestead law; and an affidavit of contest in effect charging such inadaptability is sufficient basis for a hearing..............

The submission of final proof within the lifetime of a homestead entry prevents expiration thereof during the pendency of the proof; and it is competent for the land department at any time while the entry remains in force to entertain a contest against the same...........

In a contest against a homestead entry on the ground of abandonment it is not necessary, under the act of June 16, 1898, to either allege or prove that the entryman's absence was not due to military service, where the United States was not engaged in war during the period of abandonment charged

187

253

265

190

317,563

Rejection of the commutation proof offered by a homestead entryman does not necessarily, in the absence of an adverse claim and where sufficient time remains within which the entryman may comply with law and submit new proof, result in cancellation of the entry; and the fact that commutation proof was rejected by the local officers and the General Land Office and is pending before the department on appeal is not, in such case, sufficient reason for refusing to accept a contest against the entry based upon a charge which if proven would necessitate cancellation of the entry........ 563

Contestant.

Regulations of June 1, 1909, with respect to preference right where there are two contests and relinquishment is filed...... 23 Where at the time of the initiation of a contest the contestant has a relinquishment of the entry in his possession or under his control, it can not in any sense, upon being subsequently filed, be treated as a result of the contest, so as to give the contestant any rights as against a settler on the land.. 381

The use of land for the raising of hogs is
an agricultural use, and where the land is
better adapted to that use than tillage of the
soil, meets the requirements of the home-
stead law with respect to cultivation...... 33
Desert Land.

Regulations of August 21, 1909, relative
to expenditures for stock in irrigation com-
panies..

Regulations of April 25, 1910, concerning
selections and withdrawals under Carey
Act

The desert-land right under the acts of
March 3, 1877, and March 3, 1891, is exhaust-
ed by either making or taking by assign-
ment an entry for 320 acres...

Where one who had exhausted his right by
taking an entry by assignment was never-
theless permitted to make another entry in
his own name, it may be permitted to stand
if within the provisions of the act of March
26, 1908, authorizing second desert entries,
notwithstanding a pending contest charging
disqualification at the time the entry was
made...

Where assignment is made of a desert-
land entry and the assignee recognized by
the General Land Office, the entryman or
person making the assignment thereby
parts with his title to the land, even though
it be subsequently shown upon contest or
investigation that the assignee is not quali-
fied to hold by assignment..

It is not of itself evidence of fraud, or
ground for contest, that a group of desert-
land entrymen agree voluntarily to subject
their lands to the support of an irrigation
system from which water may be taken for
their reclamation..

157

580

438

438

253

429

Where the final proof submitted upon a
desert-land entry shows that the entryman
has cultivated and irrigated at least one-
eighth of the land, and has constructed
ditches, owns a sufficient water right, has
brought water to the land, and is prepared
to turn water upon the entire tract when
it shall have been cleared and prepared for
cultivation, he is not required to show
further that water has actually been distrib-
uted over all the irrigable land in the entry. 420

Section 3 of the act of March 28, 1908, au-
thorizing an extension of time for the sub-
mission of final proof upon desert-land en-
tries where by reason of unavoidable delay
in the construction of the irrigating works
the entryman is unable to make proof of rec-
lamation and cultivation within the time
fixed by statute, furnishes no authority for
an extension of time to enable the entryman
to submit proof of annual expenditures.... 215
Where a government reclamation with-
drawal interferes with and results in the
abandonment of a private cooperative irriga-
tion enterprise, a desert-land entryman
interested in such enterprise and prevented
by the abandonment thereof from continu-
ing his improvements and submitting proof
within the time fixed by law is within the
act of June 27, 1906, and entitled to an exten-
sion of time under its provisions......

474

Instructions of August 11, 1909, relative to
publication of final-proof notices and dis-
cretionary authority of registers in making
selection of newspapers for that purpose... 131
An application for extension of time with-
in which to submit final proof upon a desert-
land entry, and the affidavits to support the
same, must be executed before some officer
within the provisions of the act of March 4,
1904; and where executed before a notary
public can not be accepted..

Rejection of the commutation proof
offered by a homestead entryman does not
necessarily, in the absence of an adverse
claim and where sufficient time remains
within which the entryman may comply
with law and submit new proof, result in
cancellation of the entry...
Homestead.

GENERALLY.

Land unadapted to any agricultural use
is not subject to entry under the homestead
law.

The fact that land is covered with valu-
able timber does not exclude it from entry
under the homestead law, where of such
character that it would be suitable for agri-
cultural use if the timber were removed;
but land of a character not adaptable to
any agricultural use is not subject to home-
stead entry....

One who holds land under an unperfected
desert-land entry is not the proprietor there-
of within the meaning of the statute holding
disqualified to make homestead entry one
who is the proprietor of more than 160 acres
of land

A transfer of land by one owning more
than 160 acres, for the purpose of qualifying
himself to make a homestead entry, is not a
violation of law, provided the transfer is
final and made in good faith.....

189

563

265

394

153

153

One who enters into an oral agreement to
purchase land, and makes part payment of
the purchase price, is not the proprietor of
the land within the meaning of the provi-
sion of the homestead law declaring dis-
qualified to make homestead entry one who
is the proprietor of more than 160 acres,
where under the laws of the State such oral
agreement and part payment do not con-
stitute such part performance as will take
the contract out of the Statute of Frauds... 613
ENTRY.

One holding the naked legal title to a tract
of land in which he has no beneficial interest
but holds as mere dry trustee for another
who paid the consideration therefor is not
the proprietor thereof within the meaning
of section 2289 of the Revised Statutes, de-
claring disqualified to make homestead
entry one who is the proprietor of more than
160 acres of land in any State or Territory.. 201
Instructions of March 29, 1910, respecting
second homestead entries...

507

A homesteader who had actually aban-
doned his entry, and which was subject to
cancellation on the ground of abandonment
at the date of the act of February 8, 1908,
comes within the provisions of that act, and
is not disqualified as a settler with a view to
second entry thereunder by reason of the
fact that his abandoned entry is still of rec-
ord..

The acts of April 28, 1904, and February 8,
1908, authorizing second homestead entries,
do not take away from the Secretary of the
Interior the discretionary power theretofore
vested in and exercised by him as head of
the land department to permit second en-
tries on equitable grounds in meritorious
cases where the first attempt to exercise the
homestead right failed of consummation
because of accident, mistake, or other suffi-
cient cause..

381

406

A homestead entryman who executes a
relinquishment and places it in the hands
of another, who disposes of it for a valuable
consideration, is disqualified to make sec-
ond entry under either the act of April 28,
1904, or the act of February 8, 1908, regard-
less of whether he actually received any part
of the consideration for which it was sold... 394
A homestead entry by one who purchased
the improvements and relinquishment of a
prior entryman will not be canceled to rein-
state the former entry, in the absence of
fraud or bad faith, merely because the relin-
quishment of the former entry was filed
after the entryman's death....

The relinquishment of part of a home-
stead entry, which would render the re-
maining tracts noncontiguous, should not
be accepted...

475

412

Where, however, such a relinquishment
was accepted, and the entryman upon faith
of such action complies with the law and
submits proof with respect to the remaining
noncontiguous tracts, the entry may be
submitted to the Board of Equitable Ad-
judication with a view to confirmation..... 412
WIDOW.

Upon the death of a homesteader prior to
consummation of his claim his widow, if
there be one, succeeds under the homestead
law to his right to the land; and the state
courts have no jurisdiction to interfere with
or divert the succession so fixed by federal
statute...

SOLDIERS'.

A soldiers' declaratory statement trans-
mitted to the local officers by mail has, when
filed, the same effect as though filed in per-

son..

490

357

Where a soldier selects the land and makes
the declaratory statement in person in his
own name, the prescribed form should be
verified before some officer designated in the
act of March 4, 1904 .......
357

Where the selection and declaratory state-
ment are made by agent, the appropriate
form should likewise be executed by the
agent before some officer designated by that
act, but the soldier's affidavit showing his
qualifications, etc., may be executed before
any officer having a seal and qualified to ad-
minister oaths generally, but not necessarily
in the land district.

Paragraph 5 of circular of April 10, 1909,
37 L. D., 638, amended..
SOLDIERS' ADDITIONAL.

357

357

An enlisted man who was discharged by
reason of reenlistment, and subsequently
deserted, was not "honorably discharged'
within the meaning of section 2304 of the
Revised Statutes, and no rights under sec-
tion 2307 can be predicated upon his service. 164
An invalid certificate of soldiers' addi-
tional right never transferred but destroyed
in the hands of the original holder was not
validated by the act of August 18, 1894, and
the land department is without authority to
recertify such right.....

The practice of recertifying soldiers' addi-
tional rights, and issuing substitutes for lost
or destroyed soldiers' additional certificates,
discontinued, and the circular of October 16,
1894, in so far as it relates to certification,
withdrawn and vacated..

Members of the Sixth Regiment Delaware
Infantry Volunteers, organized and mus-
tered in under special contract for duty in
that State are entitled to credit for military
service, as a basis for soldiers' additional
rights, only from the date or dates on which
they were called upon to perform active
military duty, and not from the date of
muster-in

71

517

47

In case a soldier entitled to an additional
right under section 2306, R. S., dies without
exercising it, leaving a widow, his sole heir,
and she dies without appropriating the right
under section 2307, it becomes an asset of her
estate, by virtue of her inheritance of the
soldier's estate, and descends to her heirs... 340
The land department has no authority to
coerce one of several heirs to a soldiers' addi-
tional right to assign his interest therein, or
to partition in severalty a right held by sev-
eral heirs jointly....

In order to charge the land department
with notice of his claim, an assignee of a
soldiers' additional right must assert the
same by application to locate or in some
other proper manner; and the fact that such
claim may be disclosed by examination of
the record of a closed case, is not sufficient to
charge the land department with notice
thereof......

A judicial proceeding for the purpose of fix-
ing the ownership and decreeing sale of the
additional right of a soldier who died intes-
tate without having exercised the right must
be instituted in the probate court having

332

442

jurisdiction over the situs of the right, which
in such case is the domicile of the soldier at
the time of his death, and so remains as long
as the probate court has power of adminis-
tration thereover; and sale of the right under
decree of a court not having such jurisdic-
tion is ineffective to convey title thereto.... 332
The soldiers' additional right of a deceased
soldier is subject to distribution as part of his
personal estate, and assignment thereof
should be made by his executor, adminis-
trator, or devisee; but in case he dies intes-
tate an assignment by his heirs will be recog-
nized by the land department where it is
shown by certificate of the proper probate
court that there has been no administration
of his estate and also by like certificate or
other satisfactory evidence that the heirs
making the assignment are the sole heirs of
the soldier..

234

Where a soldier entitled to an additional
right executed a double power of attorney,
to locate and sell the right, at a time when
the assignability of such rights was not re-
cognized by the land department, and sub-
sequently himself exercised the right, he
thereby exhausted the same, and the land
department has no power to permit further
entry based upon such right by one claim-
ing under the double power of attorney.... 375
When the land department, for adminis-
trative convenience, took action amounting
to a recognition of double powers of attorney
as equitable assignments of soldiers' addi-
tional rights, it did not thereby undertake,
and is not bound, to search its past and
closed records to ascertain who may be en-
titled to claim as equitable assignees by
reason of powers latent in records disposed
of and closed, and can not be charged with
notice of such claims..

Where a soldier entitled to an additional
right executed a power to locate the same, at
a time when the assignability of such rights
was not recognized, and no claim under the
power was asserted, by application or other
proper manner, within a reasonable time
after the land department took action
amounting to a recognition of such powers
as equitable assignments, and the soldier
subsequently executed an assignment of the
right to another, under which entry was
allowed, the land department is without
authority to permit a further entry upon
the same right, by one claiming under the
power, notwithstanding the existence of the
power might have been disclosed to the
land department, prior to the allowance of
entry under the subsequent assignment, by
examination of its closed records in another

case...

COMMUTATION.

Commutation proof upon an entry made
prior to November 1, 1907, submitted im-
mediately after the expiration of fourteen

375

445