The proviso of section 7 of this act has no validating effect upon or application to a void entry, and embraces within its purview only the particular classes of entry therein mentioned. Herman v. Chase, 37 L. D. 590, p. 592. See Cobb, In re, 37 L. D. 181. Congress did not intend by this act, providing for disposal of the general nonmineral public domain, to confirm entries for lands especially classed for disposal under special conditions at specified prices and applicable to them distinctly. Herman v. Chase, 37 L. D. 590, p. 592. Under this amendment if more than the limitation in the original statute (26 Stat. 371, p. 391) is sought to be entered as mineral land the excess (not to exceed 160 acres) may be also suitable for agricultural purposes, but if its chief value is for the mineral thereon then it shall be subject to the mineral land laws and exempt from the limitation. Harrison, In re, 19 L. D. 299, p. 300. 2. MINERAL LANDS IN RESERVATIONS-ENTRY. The provisions of the act of June 4, 1897 (40 Stat. 11, p. 36), as to the right to enter upon reservations for the purpose of prospecting, locating, and developing the mineral resources therein and providing that mineral lands in any forest reservation are subject to entry under the existing mining laws of the United States apply to all public forest reservations established under the authority of this act. Crowder, In re, 30 L. D. 92, p. 94. C. HOMESTEAD SETTLEMENTS. 1. SHOWING AS TO INTENT AND USE. 2. MINERAL CHARACTER OF LAND-DETERMINATION. 3. VALID MINING CLAIM-FAILURE TO PROSPECT OR DISCOVER. 4. COAL LANDS-APPLICATION OF ACT. 5. RIGHT TO CUT TIMBER-USES. 6. SUITS TO CANCEL PATENTS. 1. SHOWING AS TO INTENT AND USE. The homesteader must show by his affidavit that he is not entering land as agent for any person or corporation or to give such person or corporation the benefit of the land or the timber thereon. Shiver v. United States, 159 U. S. 491, p. 496. 2. MINERAL CHARACTER OF LAND-DETERMINATION. The proviso of section 7 does not preclude the department from ordering an investigation for the purpose of determining the known character of the land at the date of the final entry and from canceling the entry if the evidence shows that the land was at that time known to be chiefly valuable for coal. Herman v. Chase, 37 L. D. 590, p. 592. Conditions with respect to the character of land as they exist at the date of entry, or at the time when all the necessary requirements have been complied with by the person seeking title, must determine whether the land is subject to sale or disposal and no change in conditions subsequently occurring can impair or otherwise affect the right of the applicant to a patent, as the right to a patent once vested is equivalent to a patent issued. Harkrader v. Goldstein, 31 L. D. 87, p. 94. 3. VALID MINING CLAIM FAILURE TO PROSPECT OR DISCOVER. A location can not be held to be a valid mining claim or possession within the meaning of the law where the applicant has had ample time and opportunity to show by exploration and development whether valuable mineral deposits exist on the land and has not done so and has not in any manner established that his location embraces mineral land. Brophy v. O'Hare, 34 L. D. 596, p. 598. 4. COAL LANDS- -APPLICATION OF ACT. The action of the Land Department in withdrawing lands on account of their supposed coal character and in ordering an investigation of entries made thereon constitutes a protest against such entries within the meaning of this section of this act, as this amounts to a charge that the lands withdrawn were coal lands, and this, if true, constitutes an insurmountable obstacle to the acquisition of any title thereto under the desert-land laws. Blinn, In re, 40 L. D. 97, p. 100. Where lands returned as containing coal were not offered at public sale no question can be raised as to the validity of such sale after the expiration of two years from the date of the issuance of the receiver's receipt upon the final entry, and they come within the confirmatory provisions of the seventh section of this act. Harris, In re, 28 L. D. 90, p. 91. Where proceedings are instituted by the Government to set aside coal-land entries because of fraud notice to the original entryman is not required where such entryman has transferred his entire interest in the claim and is under no liability to protect his transferree. Stough, In re, 41 L. D. 616, p. 620. Distinguishing Romance Lode Min. Claim, In re, 31 L. D. 51. A proceeding timely commenced against a coal-land entry on a charge of fraud can not be regarded as discontinued because of an indefinite postponement extending beyond the two years within which the proceedings are required to be commenced. Stough, In re, 41 L. D. 616, p. 621. The proviso of section 7, giving the right to patent where no contest or protest has been filed within two years after the receiver's receipt upon the final entry of the lands therein described, does not include coal-land entries. United States v. Yankee Fuel Co., 195 Fed. 850, p. 851. Stough, In re, 41 L. D. 616, p. 621. The word "preemption" used in this statute may in its general use have a varied meaning, but in this statute it has a well-defined technical meaning, and the meaning there applied can not be extended to coal-land entries under section 2347 Revised Statutes. United States v. Yankee Fuel Co., 195 Fed. 850, p. 852. Distinguishing United States v. Ballinger, 33 App. Cas. (D. C.) 211. See Atherton v. Fowler, 96 U. S. 513. Harris, In re, 28 L. D. 90. Alaska Coal Lands, In re, 39 L. D. 327, p. 332. See 20 Stat. 88, p. 1335. 5. RIGHT TO CUT TIMBER-USES. The settler upon a homestead may cut such timber only as is necessary to clear the land for cultivation, including the necessary buildings and fences, but he may exchange timber for lumber for such purposes, but not to sell except such as may be necessarily cut for cultivation. Shiver v. United States, 159 U. S. 491, p. 498. 6. SUITS TO CANCEL PATENTS. Under this statute suits by the United States to annul patents to mining claims issued before the passage of the act must be brought within five years from the date of its passage. Peabody Gold Min. Co. v. Gold Hill Min. Co., 106 Fed. 241. D. RIGHTS OF WAY-EASEMENTS. 1. USE OF CANALS-METHOD OF ACQUIRING. 2. RESERVOIR SITES-SELECTION. 1. USE FOR CANALS METHOD OF ACQUIRING. See 26 Stat. 371, p. 391, p. 1189. In order to acquire a right of way over public lands for canal and reservoir purposes under this act it is essential that the map of the location of the canal and the reservoir shall be approved by the Secretary of the Interior, and such approval is a condition precedent to the taking effect of the grant of the right of way. United States v. Rickey Land & Cattle Co., 164 Fed. 496, p. 500. This section extends the benefits of this act to all canals, ditches, or reservoirs theretofore or thereafter constructed upon the public domain, and it also grants the right to file with the Land Department a map of such canal, ditch, and reservoir which was granted by section 2339 R. S. Lincoln County Water Supply & Land Co. v. Big Sandy Reservoir Co., 32 L. D. 463, p. 464. 2. RESERVOIR SITES- -SELECTION. Land in the actual possession of a mineral claimant who has complied with the mining laws, regulations, and customs and made application for a patent can not be selected as a reservoir under this statute. Gabathuler, In re, 15 L. D. 418. A mineral location can not be made on lands already selected for a reservoir site and the locator acquires no rights under his mining entry, but such entry may be permitted if it subsequently appears that the land is not required for reservoir purposes. Colomakas Gold Min. Co., 28 L. D. 172, p. 174. See Gabathuler, In re, 15 L. D. 418. E. CLAIMS INITIATED UNDER ACT. The filing of a declaratory statement followed by a declaratory settlement, residence, and improvements constitute a bona fide claim lawfully initiated within the meaning of this section. Thomas v. Thomassen, 16 L. D. 52, p. 54. 27 STAT. 390, AUGUST 5, 1892. SETTLEMENTS ON RAILROAD LANDS-NORTH AND SOUTH DAKOTA. AN ACT For the relief of settlers upon certain lands in the States of North Dakota and South Dakota. Whereas under the rulings of the General Land Office the extension into Dakota Territory, now States of North Dakota and South Dakota, of the limits of the grants of land made by Congress to aid in the construction of the several lines of railroad now owned by the Saint Paul, Minneapolis & Manitoba Railway Co. was denied, and in consequence of said rulings lands within the limits of the said grants in the said States have been claimed, settled upon, occupied, and improved by numerous persons in good faith under color of title or of right to do so derived from the various laws of the United States relating to the public domain, and are now claimed by them, their heirs, or assigns, and many of said lands have actually been patented to such occupants or to their grantors; and Whereas under recent construction of said grants the said occupants, improvers, or purchasers are liable to be evicted from their holdings: Now, therefore, for the purpose of relieving the said occupants, improvers, and purchasers of the said granted lands from the hardship of being now deprived of the same under the circumstances aforesaid, Be it enacted, etc., That the Secretary of the Interior shall, as soon as conveniently may be done, cause to be prepared and delivered to the said railway company a list of the several tracts which have been purchased, claimed, occupied, and improved, as stated in section 2 of this act, and are now claimed by such purchasers or occupants, their heirs or assigns, according to the smallest Government subdivisions. Within a reasonable time after the receipt by the said railway company of the said list, it shall execute under its corporate seal and deliver to the Secretary of the Interior its deed of conveyance, releasing to the United States all its claims upon the lands described in said list, and shall also procure and cause to be released to the United States all liens and claims to said lands derived through or under said company, whereupon all right, title, and interest of the said railway company to each of such tracts shall revert to the United States, and such tracts shall be treated, under the laws thereof, in the same manner as if no rights thereto had ever vested in the said railway company, and all qualified persons who have occupied and made improvements on said lands, as herein provided, or who have purchased said lands in good faith, their heirs and assigns, shall be permitted to perfect their titles to said lands according to law as if said grants had never been made. SEC. 2. That the said railway company is hereby permitted to select, in lieu of any lands forming odd-numbered sections or parts thereof situated in the State of North Dakota or in the State of South Dakota, within the ten-mile limits of a grant of lands made to the Territory of Minnesota by act of Congress, entitled "An act making a grant of land to the Territory of Minnesota, in alternate sections, to aid in the construction of certain railroads in said Territory, and granting public lands, in alternate sections, to the State of Alabama, to aid in the construction of a certain railroad in said State," approved March 3, 1857 (11 Stat. 195), as amended by an act of Congress, entitled "An act extending the time for the completion of certain land-grant railroads in the States of Minnesota and Iowa, and for other purposes," approved March 3, 1865 (13 Stat. 526), and of a grant made by act of Congress entitled "An act authorizing the Saint Paul & Pacific Railroad Co. to change its line in consideration of a relinquishment of lands," approved March 3, 1871 (16 Stat. 588), opposite to and coterminous with such portion of said railroad as was constructed and completed within the time required by the said grant and the acts amendatory thereof for the construction and completion of the whole of said railroad, which, prior to January 1, 1891, any person had purchased or occupied or improved, in good faith, under color of title or right to do so, derived from any law of the United States relating to the public domain, but not including any lands within the limits of the grant, to aid in the construction of the Saint Vincent branch of said road, as located under the act of March 3, 1871 (16 Stat. 588), upon which any person or persons had, in good faith, settled and made or acquired valuable improvements thereon prior to March, 1877, an equal quantity of nonmineral public lands, so classified as nonmineral at the time of actual Government survey which has been or shall be made, of the United States not reserved and to which no adverse right or claim shall have attached or have been initiated at the time. of the making of such selection lying within any State into or through which the railway owned by said railway company runs, to the extent of the lands so relinquished and released. * * * A. LANDS SUBJECT TO SALE UNDER GRANT. B. INDEMNITY SELECTIONS BY RAILROAD CONSIDERATION. C. RETURN OF LANDS AS MINERAL NOT A CLASSIFICATION. A. LANDS SUBJECT TO SALE UNDER GRANT. Lands subject to sale under this grant are restricted to nonmineral lands so classified at the time of the Government Survey, not reserved, and to which no adverse right or claim had attached or been initiated. St. Paul, etc., R. Co., In re, 18 L. D. 258. B. INDEMNITY SELECTIONS BY RAILROAD CONSIDERATION. In consideration of the relinquishment of certain lands in Dakota the railroad company by this act was permitted to select an equal quantity of nonmineral public lands classified as nonmineral at the time of actual Government survey which has been or shall be made. Bedel v. St. Paul, etc., R. Co., 29 L. D. 254, p. 255. Under this act lands classified as nonmineral at the time of actual Government survey may properly be selected by the railroad company under this grant. Bedel v. St. Paul, etc., R. Co., 29 L. D. 254, p. 255. C. RETURN OF LANDS AS MINERAL NOT A CLASSIFICATION. A return of lands as mineral prior to the public survey can not be considered as a classification of lands as mineral at the time of the actual Government survey within the meaning of the act. St. Paul, etc., R. Co., In re, 34 L. D. 211, p. 212. |