File #613: "CAC_CC_039_3_3_002_reduced.pdf"

OKLAHOMA

«f THE UNITED STATES

HOMESTEAD,
TOWPiSITE AND
MINING LAWS.
(AS APPLICABLE TO OKLAHOMA.)

BY

DICK T. MORGAN o
OF THEJ

PERRY BAR.

PERRY, OKLAHOMA
PSIXQS ^1.00. ADDRlSSSi DICK T. MORGEAii, PBSRRy, O. T.

J

r
MORGAN'S MANUAL
4

OF THE UNITFD STATES

Homestead,

>4

■(

Townsite

k

AND

1

Mining Laws,

i

{

k

BY

niCK T. MOR(i>N.
M)

Os
1

OF* THE

r

PERKY^RYR,
k

Pe r

r y,

Ok l a h o m a .
A>

1900:
STATE CAPITAL PRINTINGiJOMPANY,

Guthrie, Okla.,4
9

r
l^ETTER
FROM THE

Se c r e t a r y
COPYRIGHT 1801 BY

mCK T. MORGAN.
COPYRIGHT 1803 BY
DICK T. MORGAN.

COPY’RIGHT lOOO BY

niCK T. MORGAN.

OK THE

In t e r io r .

Hon. John W. Noble, when Secretary of the Interior,
said of “ Mo r g a n ’s Ma n u a e ”:
DEPARTMENT OF THE INTERIOR,
I
Washington, Sept. 11, 1891 j
Dick T. Morgan, Esq., Attorney at Law, Outhrie, Oklahoma:
My Dear Sir: I thank you for the copy of your “ Manual of
United States Homestead and Townsite Laws,^^ and have to say
that on submission thereof to the Assistant Attorney General
assigned to this Department, and the attorneys acting le Uh him
they have compressed their favorable opinion, and think it ought
to be well commended as fairly representing the policy of the
Department in the administration of the public land laws. I
take pleasure in joining in this commendation. You can send
ffte, if you please, jive additional copies, for which I shall expect
to reimburse you.
Yours truly,
[Signed]
JOHN W. NOBLE,
Secretary..

r
MORGAN’S MANUAL.

Kiowa and Comanche Treaty.

OPINIONS OF PROMINENT OFFICIALS.

Ho n . C. M. Ba r n e y s , Governor of Oklahoma, and exReceiver of the U. S. Land Office, Guthrie, Okla., says:
“I regard it as the most valuable compilation of the
laws and regulations bearing on these questions that I
have ever seen.”
Ho n . Jo h n I. Dil l e r , ex-Register of the U. S. Land
Office, Guthrie, says: “I regard it the best work of the
kind published. It should be in the hands of every
homesteader and every land office practitioner.”
Ho n . D. a . Ha r v l y , Delegate to congress from Okla­
homa, says: “I believe it to be an entirely correct ex­
position of the matters therein treated.”
Ho n . J. C. De l a n e y , Receiver of Land Office, Okla­
homa City, says: “All seekers after correct information
should possess themselves of a copy of your Manual.”
Ho n . J. C. Ro b e r t s , Register U. S. Land Office,
Kingfisher, Okla., says: “I know it will be of great value
to persons having business before local land offices.”
Ho n . Jo h n W. Sc o t h o r n , Special Agent of the Gen­
eral Land Office, Washington, D. C., says: “It should
be in the hands of every homesteader.”
Ho n . J. V. Ad m ir e , Receiver U. S. Land Office, King­
fisher, Okla., says: “It seems to me that this work is
exactly what is needed for the use of the general public.”
Ho n . S. L. Ov e r s t r e e t , Register U. S. Land Office,
Guthrie, Okla., says: “I regard this work as of much
value to those seeking homes on the public domain.”

The following is a synopsis of the treaty of the United
States with 'the (Comanche, Kiowa, and Apache tribe of In­
dians for these lands:
“ARTICLE I. iSubj'ect to the allotment of land, in sev­
eralty to (the individual members of the Comanche, Kiowa,
and Apache tribes of Indians in the Indian Territory, as
hereinafter provided for, and subject to the setting apart
as grazing lands for said Indians, four hundred and eighty
thousand acres of land as hereinafter provided for, and sub­
ject to the conditions hereinafter imposed, and for the
considerations hereinafter mentioned the said Comanche, Ki­
owa and Apache Indians hereby cede, convey,(transfer, relin­
quish, and surrender forever and absoluitely, without any
reservation whatever, express or implied, all their claim,
title and interest, of every kind and character, in and to
the lands embraced in the following-described tract of
country in the Indian Territory to-wit: Commencing at a
point where the Washita River crosses the ninety-eighth
meridian west from Greenwich; thence up the Washita
River, in the middle of the main channel thereof, to a point
thirty milets, by river, wiest of Eoft Cobb, as now established;
thence due west to the north fork of Red River, provided
said line strikes said river east of the one-hundredth meri­
dian of west longitude; if not, then only to said meridian
line, and thence due south, on said meridian line, to the
said north fork of Red River; thence down said north fork,
in the middle of the channel thereof, from the point where
it may be first ihtersectled by the lines above described, to
the main Red River: thence down said Red River, in the
middle of the main channel thereof, to its intersection with
the ninety-eighth meridian of longitude west from Green wich; thence north, on said meridian line, to the place of
beginning.
“ARTICLE II. Article II provides for the allotment of
160 acres, according to the legal survey, to each member of
■ these tribes.

“ARTICLE III. Article III provides that 'the Secretary
of Interior shall set aside 480,000, acres of grazing” lands for
the use in common of said Indian tribes. The same Is to be
set apart in one or more tracts, as will best subserve the
interests of said Indians. And said article further provIdea
that the allotments shad nott be taken upon Sections six e n
(16) or thirty-six (36), unless an Indian has made improve­
ments upon said section.
“ARTICLE IV. Article I/, refers to the time in which the
allotments may be made.
But this seems to be controlled
by the Act of Congress hereinafter quoted.
“ARTICLE V. Article V provides that the allotments
shall be held in trust for the allotees, for a period of twentyhve years, at which time title to said land shall be conveyed
in fee simple to the allotees.
“ARTICLE VI. Article VI refers to the sum of money
to be paid to the Indians for said land.
“ARTICLE VII. This does not appear in Act of Con­
gress.
“ARTICLE VIII. Article VIII refers to the manner of
taking allotments.
“ARTICLE IX. Article IX refers to the leases in force,
at th« time of the ratification of Congress of this agreement.
“ARTICLE X. Article X provides for making allot­
ments to contain individuals.
“ARTICLE XI. Ar’ticle XI provides that said agree­
ment shall become effective when ratified by the Congress of
the United States.
KIOWA AND COMANCHE ACT.
The following is the act of Congress, approved June 6,
1900, ratifying the above treaty, and providing for the open­
ing of said lands:
Allotments. Said agreement be, and the same here­
by is, accepted, ratified, and confirmed as herein amended.
That the Secretary of the Interior is hereby authorized
and directed to cause the allotments of said lands, provided
for in said treaty among said Indians, to be made by any
Indian inspector or special agent.
That all allotments of said land shall be made under tae
direction of the secretary of the interior to said Indians
within ninety days from the passage of this Act, subject to
the exceptions contained in article four of said treaty;
Prffvified, That the time for making allotments shall in
no event be extended beyond six months from the passage of
this Abt.

4-'

Homestead and Townsite Laws Made Applicable, That
the lands acquired by this agreemenlt shall be opened to
settlement by proclamation of the President within six
months after allbtments are made and be disposed of under
the general provisions of the homestead and townsitie laws
of the United States.
Cost of Land. Provided^
ThaJt in addit on to the
land office fees prescribed by s'Latuite for such entries the entryman shall pay one dollar and twenty-five cents per acre
for the land entered at the time of submitting his final proof.
Commutation. And Provided, Further, That
in
all
homesftead entries where the entryman has resided
upon and improved the land entered in good faith for the
period of fourteen months he may commute his entry to
cash upon the payment of one dollar and twenty-five cents
per acre.
Rights of Soldiers.
And Provided, Further,
That
the rights of honorably discharged Union ' soldiers
and sailors of the late civil war, as defined and de­
scribed in sections twenty-three hundred and four and
twenty-three hundred and five of the Revised iStatutes shaT
not be abridged.
Persons Who Have Failed to Secure Title, or Com­
muted Entries.
And Provided, Further,
That
any
person
who,
having
attempted
to,
but
for
any
cause failed to secure a title in fee to- a homestead under
existing laws, or who made entry under what is knov/n as
the commuted provision of the homestead law, shall be qual­
ified to make a homestead entry upon said lands.
Settlers on Lands Lying Contiguous.
And Provide^
Further,
That any qualified entryman having lands
adjoining
the
lands
herein
ceded,
whose
original
entry embraced less than one hundred and sixty acres in al ,
shall have the right to enter so much of the lands by th s
agreement ceded lying contiguous to his said entry as shall,
with the land already entered, make in the aggregate one
hundred and sixty acres, said land to be taken upon the same
conditions as are required of other entrymen.
Settlers on “Neutral Strip.”
And Provided, Further,
That the settlers who located on that part of said
lands called and known as the “neutral strip” shall
have perference right for thirty days on the lands upon
which they have located and improved.
Sections i6, 36, 13, and 33 Reserved.
That sections
sixteen and thirty-six, thirteen and thirty-three, of the
lands hereby acquired in each township shall not be s»ii,ject

8

9

to entry, but shall be reserved, sections sixteen and thirtysix for the use of the common schools, and sections thirteen
and thirty-three for university, ag-ricultural colleg'es, normal
schools, and public buildings of the Territory and fufure
StaJte of Oklahoma; and in case either of said secti-uis, or
parts thereof, is lost to said Territory by reason of allot­
ment under this Adt or otherwise, the governor thereof is
hereby authorized to locate other lands nht occupied in etuantity equal to the loss.
Mining Laws in Force. That should any of said lands
allotted to said Indians, or opened to settlement under
this Adt, contain valuable mineral deposits, such mineral de­
posits shall be open to location and entry, under the <'-*xisting mining laws of the United iStates, upon the passage of
this Act, and the mineral laws of the United States are here­
by extended over said lands.
Payment of Money to Indians.
Thalt
none
of
the
money or interest thereon which is, by the terms of the
said agreement, 'to be paid to said Indians shall be ap^>lied
to the payment of any judgment that has been or may here­
after be rendered under tne provisions O)f the Act of C'ongress approved March third, eighteen hundred and ninetyone, entitled “An Act to provide for the adjudica^tion and
payment of claims arising from Indian depredations.”
By the above Act, Congress has provided that these
lands shall “BE DISPOiSED UNDER THE GENERAL PRO­
VISIONS OF THE iHOMElSTEAD and TOiWl HSITE laws.”
and “SHALL BE OPEIN TO LOCATION AND ENTRY
UNDER THE EXISTING MINING LAWS OF THE UNIT­
ED STATES,” upon the passage of the Act, and that “THE
MINERAL LAWS OP THE UNITED STATES ARE HERE­
BY EXTENDED OVER SAID LANDS.” In other words,
these lands may be taken under the Homestead, Townsite,
and Mining Laws, in case the land applied for contains val­
uable minerals. The Act does not say what these laws are.
The object of this volume is to present these laws, so far
as possible in a work of this kind.

(SECTION 5. That iSedtion 2289 and 2290, In said chapter
numbered 5, of th© Revised Statutes, be and the same arc
hereby, amended, so that they shall read as follows:
“'SEC. 2289. Every person who is the head of a family
or who has arrived at the age of twenty-one years, and is
a citizen of the United States, or who has tiled his declara­
tion of intention to become such, as required by the natural­
ization laws, shall be entitled to enter one-quarter section,
or a less quantity, of unappropriated public lands to be lo­
cated in a body in conformity to the legal subdivisions of
the public lands; but no person who Is the prophifetor of
more than 160 acres of land in any state or territory shall
acquire any right under the homestead law. And every per­
son owning and residing on land may, under the provisions
of this section, enter other land lying contiguous to his land
which shalll not, with the land so already owned and occu­
pied, exceed in the aggregate 160 acres.

The Homestead Law.
The homiestead privilege is conferred by section 2289, U.
S. Revised (Statutes. This section, together with sections
2290 and 2301, were amended by act of congress approved
March 3, 1891, to read as follows.

The above sedtion is in force generally in the United
Sitates but by act of M'ay 2, 1890, see index, “Act of May 2,
1890,” section 20, one cannot enter land ih Oklahoma Terri­
tory who owns one hundred and sixty acres or more of land
in any state or territory.
iSEC. 2290. That any person applying to enter land under
the preceding sedtion shall first make and subscribe before
the proper officer and file in the proper land office an affi­
davit that he or she is the head of a family, or is over
twenty-one years of age, and that such application is hon­
estly and in good faith made for the purpose of actual set­
tlement and cultivation, and not for the benefit of any other
person, persons or corporation, and that he or she will faith­
fully and honesitly endeavor to comply with all the require­
ments of the law as to settlement, residence and cultivat'on
necessary to acquire title to the land applied for; that he or
she is not acting as agent for any person, corporation or
syndicate in making such entry, nor in collusion with any
person, corporation or syndicate to give them the benefit of
the land entered, or any part thereof or the timber there­
on; thait he or she does not apply to enter the same for the
purpose of speculation, but in good faith to obtain a home
for himself or herself, and thalt he or she has not directly or
indirectly made, and will not make, any agreement or con­
tract in any way or manner, with any person or persons,
corporation or syndicate whatsoever, by which the tiFe
which he or she might acquire from the government of the
United States should inure, in whole or in part, to the bene­
fit of any person, exOept himself or herself; and upon filing
such affidavit with the register or receiver on payment of

r

11

10
$5 whien ftbe enitry is not more than 80 acres, and on payment
of $10 when the entry is for more than 80 acres, ho or
she shall,thereupon be permitted to enter the amount of lanu
specified.”
In addition to the fee of $5 for an 80 trace and $10 for 16)
acres, there Is also charged at the time of entry a “commis­
sion” of $2 on an 80 acre tract and $4 on 160 acres. There­
fore, an entryman musit pay $7 fees and commissions on 80
acres and $14 on 160 acres. At the time of making final proof
which means the time one makes the proof of his res'dence
and improvements necessary to acquire title, he must also
pav for 80 acres, additional fees and commissions of $2, and
for 160 acres $4, additional fees and comm ssions. With some
exceptions the above applies to Oklahoma lands and a large
number of states. In lands within the 'limits of derltain rail­
road grants, and in staltes and territort'es west of Kansas,
Nebraska and the Dakotas, the fees and commissions are
some higher.

Commutation.
SEIC. 6.
That section 2301 of the Revisied S'taitutes be
amended so as to read as follows:
“SEC. 2301. Nothing in this chapter shall be so con­
strued as to prevent any person who shall hereafter ava 1
himself of the benefits of section 2289 from paying the mini­
mum price for the quantity of land so entered at any time
after the expiration of fourteen calendar months from the
date of such entry, and obtaining a patent therefor, upon
making proof of settlement and of residence and cultivation
for such period of fourteen months, and the provisions of
this section shall apply to lands on the ceded portion of the
Sioux reservation, by act approved March 2, 1889, in iSouJth
Dakota, but shall not relieve said settlers from any payments
now required by law.
The fourteen months’ clause does noit apply to all the
lands in Oklahoma. To determine the length of residence re­
quired, before title can be acquired, reference should be
made to the special acit applicable to the land entered.
CONVEYiANOE OE HOMEiSTEAD.
By same act section 2288 was amended to read as fol­
lows:

4

SiElC. 3. That iSedtion 2288 of the. Revised. Statutes be
amended to read as follows:
“'SEiC 2288. Any bona fide settler under the pre-emption
homestead, or other settlement law shall have the right to
transfer, by warranty against his own acts, any portion of
his claim for church, cemetery or school purposes, or for the
right of way of railroads, canals, reservoirs, or ditches
for irrigation or drainage across it; and the transfer for such
public purposes shall in no way vitiate the right to com­
plete and perfect the title of his claim.
ISECTTON 3, ACT MAY 14, 1880. That any settler who
has Settled, or who shall hereafter settle, on any of the pub­
lic lands of the United States, whether surveyed or un­
surveyed, with the intention of claiming the same under the
homestead laws, shall be allowed the same time to file hi?
homestead application and perfect his original entry in the
United 'States Land Office as is now allowed to settlers un­
der the pre-ernption laws to put their claims on record, and
his right shall relatle back to the date of settlement, the
same as if he settled under the ppe-emption Haw.
Approved May 14, 1880.

HOW TO INTTIATE HOMESTEAD RIGHT.
There are two ways by which to initiate a r'ght to a
tract of land under the homestead law. These are, first, by
Enitry; second, by Settlement. To these might be added, a
third, the right given to the ex-Union soldiers and sailors, to
iniitiaite their claims by filing, In person, or by agent, a De­
claratory statement. These will be treated in the order
named.
HOMElSiTBAD BY ENTRY.
To make an entry one must make an application at the
proper land office, accompanied by proper affidavits showing
his qualifications to make homeiStead entry, and pay the fees
and commissions, which in Oklahoma are for 160 acres, $14,
for 80 acres, $7, and for 40 acres, $6. It is very important
that entry papers be correctly made.
The oath required as shown by amended Section 2290,
modified to correspond to special staitutes applicable to Okla
homa.
Examination of the Land.
It is not necessary to
examine the land before making homestead entry, except
entries upon lands held to be mineral lands. By Act ap-

!

12

13

proved 'March 3, 1891, (siee index Act March 3, 1891) 'the lands
in Oklahoma were declared ¡to be non-mineral lands. Hence
as a rule lands in Oklahoma may be enltered without first
viewing- the lands. But by Act of Congress, approved June
6, 1900, opening the Kiowa, Comanche and Apache lands to
setltlement, the mining laws of the United States were ex­
tended over 'these lands, and following the ordinary rule in
such cases, persons desiring Ito make homestead entries of
these lands will be required to make the non-mineral affi­
davit, which is in substance to the effect that a personal
examination of the land has been made, and that there are
no indications of minerals on ffche land.

States Court Commissioners,” appoin'ted by the chief justice
of ffche terriltorial supreme court, are authorized to adminis­
ter oaths under the above section, the same as United States
circuit court commissioners.

Where to Make Entry.—Prior to act of May 26, 1890, (10
L. D. 688) the entryman must go in person before the Regis­
ter and Receiver at the land office and make the homestead
afiidavits, unless the family of the applicant or some mem­
ber thereof was actually residing on the land and the ap­
plicant being prevented by reason of distance, bodily infirm­
ity or other good cause from personal attendance at the dis­
trict land office.
By the act of April 26, 1890, referred to above the law was
amended by striking out the provision requiring the family
of applicant or some member thereof to be actually residing
on the land.
By said act,section 2294 U. S. Revised Statutes, is amended
to read:
‘ ‘In any case in which the applicant for the benefit of the homestead
* * * law is prevented by reason of distance, bodily infirmity or
other good cause, from personal attendance at the district land
office, he or she may make the affidavit required by law before any
commissioner of the United States circuit court or the clerk of a
court of record for the county in which the land is situate and trans­
mit the same with the fee and commission to the Register and Re­
ceiver.”
The Department of the Interior has held that under the
above sitatute Probate Judges, being their own clerks are
qualified to administer 'the oath, in homestead affidavits in
proper cases, coming under th© above statute. Under sec­
tion 2, act of 'Congress, approved March 2, 1895, “United

The commissioner of the general land office has held that
persons fifty miles distant came within the above statute.
He also held that U. S. commissioners appointed by our
territorial courts or judges were not “commissioners of the
U. S. circuit courts.”
Who Can Make Homestead Entry.—Every person who is
the head of the family or who has arrived at the age of
twenty-one years, who is a citizen of the United States or
who has declared his intention to become such, may make
homestead entry in Oklahoma, providing he does not own
160 acres of land, and has not before made homestead entry
or filed soldier’s declaratory statement. The general rule
is that the right is forever exhausted by making one home­
stead entry or filing one declaratory statement, but there
are exceptions to this rule, which will be treated of under
“second entries,” See Index.
A person under twenty-one years of age, but who is the
head of a family is a qualified entryman. 2 L. D. 82. A
widow, who as the heir of her deceased husband is holding
her husband’s claim, entered prior to his death, may make
an entry in her own right. Sullivan vs. Snyder, 5 L. D. 184.
The wife of a helpless paralytic is the head of a family and
as such may make entry. Copp’s Land Laws, 371.
Service in the army or navy of the United 'States in the
war of the rebellion, for a period of ninety days, entiltles one
to make a homestead entry without regard to age or citizen­
ship. R. S. U. S., sedtion 2304. If the soldier be dead his
widow, and if she be dead then his minor heirs, by guardian
duly appointed and credited alt the Departmlent in Washing
ton, may make homestead entry and have all the benefits
of seettion 2304. See R. S. U. S. section 2307.

r

14

A married woman, the head of a family or one deserted
by her husband, is a qualified homesteader.
Kamanski vs. OEUggs, 9 L. D. 186.
Wilbur vs. Goode, 10 B. D. 527.
CZ) Who Can Make Entry in the
Kiowa and Co­
manche Lands ?
Generally, any person may make
homestead entry of 'the lands in the Kiowa, Comanche and
Apache country, who is qualified to make entry under the
homestead law. An examination of the Act, of June 6, 1900,
will show that it contains the following proviso:
‘*That any person, who having aitltempted to but foi
any cause failed to secure a title in fee to a homestead,
under existing law, or who made entry under what is known
as the commuted provision of the homestead law, shall be
qualified to make homestead entry upon said lands.’*

'The above proviso has been made a part of this Statute
for the purpose of permitting persons to make entry of
lands, who have exhausted their hmesitead rights, by mak­
ing an entry prior to the passage of the act. As is well
known, generally speaking, one homestead entry exhausts
the right. A proviso, similar to the above, was a part of
the act which opened to selttlement and entry the Iowa, Sac
and Fox lands, and has received a cons'Lrucition by the De­
partment. Under the first clause of the proviso any person
• who, prior to the approval of the act, has relinqu'shed his
homestead entry, is qualified to make a homes'tead entry
upon the lands in the Kiowa and Comanche counLry.
There is more difficulty, however, with the second clause
of the proviso which provides that any person, ’‘Who made
enitry under what is known as the commuted provis'on of
the homestead law, shall be qualified to make a homestead
entry upon said lands.”
The difficulty arises over what Congress meant by the
“commuted provisions of the homestead law.” It has been
held by the Department of the Initferior that iSection 2301, of
the Revised »Statutes of the United States, is, "the commuted
provision of the homestead law;” and the Secretary of In­
terior held that a person who “commulted” his homestead

I

entry, under a special act of Congress, had not commuted
under the “provisions of the homestead law.”
The “commutations” in Oklahoma, have as a rule at
least, been made under special act of Congress, and not un­
der Section 2301. It is very doubtful, thereiore, whether
persons who have commuted their homestead entries, upon
lands in Oklahoma are qualified to make homesteads in the
lands to be opened to settlement in the Kiowa, Comanche
and Apache reservation. This question came before the
Department in the case of James 'M. Clark, reported in 17
B. D., page 46. Clark had made entry of a tract of land in
that portion of Oklahoma opened to Settlement, April 22,
1889. Prior to the opening of the Sac and Pox lands, Clark
commuted his homestead entry. The act of Congress open­
ing the Sac and Pox reservations to settlement, among
other things, provided thait any person otherwise qualified,
who made entry under what was known as the commuted
provisions of the homestead law, should be qualified to
make entry upon said lands.
Clark’s application to make entry was rejected by the
Department of Interior on the grounds that Clark had com­
multed under Section 21, of the Act of iMay 2d, 1890, and not
under Section 2301, of the Revised Sltatuces of the United
States.
As a rule, commutations, throughout all the Western
States and Territories are made under Section 2301, of the
Revised Statutes of United States. It would seem a great
injustice to the homestead entrymen who have commuted in
Oklahoma, under special acts not to be granted the same
privilege in these new lands, which is granited to the settlers
who have commuted under the general siecuon. Possibly
the former ruling of the Secretary may be modified or re­
versed.
Simultaneous Application.—It somettimes happens that
two persons apply to enter land at the same time, in which
case the rule is as follows:
Plrs*t. Where neither party has improvements on the
land the right of entry should be awarded to the highest
bidder.

IG

Second.—¡When one has actual settlement and improve­
ments, and the other has not it should he awarded
ìlici
actual settler.
Third.—Where both allege settlement and improvemetih^/
an investigation must be had and the right
entry
awarded to the one who shows prior actual settlement and
and substantial improvements so as to be notice on the
ground to any competitor.
(See General Land office Circular, 1839, page W* also
Ilelfrich vs. King, 1 Copp’s L. L. p. 378.)
The above rules will indicate the importance of makings
settlement and improvements prior to entry.
Entry an Appropriation.—The entry of the land isf art ap­
propriation of it. It is thereby segregated from the pub­
lic domain. It is not subject to entry or valid settlement by
another, and the entryman acquires an incohate rightr—an
equity in the land which can not be defeated, except hy
failure on the part of the entryman, to comply with the
law, provided, of course, that the land was not appro­
priated prior to the entry by settlement of another.
Attorney General McVeah, 1 L. D. 30; Graham vs. H.
D. R. R. Co., 1 L. D. 362; Wolf vs. Struble, 1 L. D. 449;
Legan vs. Thomas, et. al. 4 L. D. 441; Schrotberger vs.
Arnold, 6 L. D. 425; Grove vs. Cook, 7 L. D. 140.
Entry consists of three things, viz: The application, the
affidavit and the payment of fees and commissions. The
settler must comply with all these elements, or his entry
will be rejected, and he can claim no rights thereunder.
Gilbert vs. Spearing, 4 L. D. 463; Iddings vs. Burns, 8 L. D.
224.
HOMfBSTEAD BY SETTLEMENT.
Having considered the first method, viz: By entry, we
will now consider (the second method of initiating a home­
stead right, viz: By settlement.
Prior to May 14, 1880, it was only by entry that a home­
stead right to a tract of land could be initiated. Christesen
vs. Mathorn, 7 B. D. 537.

I

17
The third section of the act
vided:

approved on that date, pro­

Se c . 3. That any settler who has settled, or who shall hereafter
settle on any of the public lands of the United States, whether sur­
veyed or unsurveyed, with the intention of claiming the same under
the homestead law, shall be allowed the same time to file his home­
stead application and perfect his original entry in the United States
land office, as is allowed to settlers under the preemption laws.

I

By reference to the pre-emption law, U. S. R. S. section
2265, we find that the settler has three months from date
of his settlement in which to make his fi.ling. Therefore
under act of May 14, 1880, a homestead settler has three
months from date of his settlement in which to make his
entry and his rights relate back to date of settlement.
Murphy vs. Taft, i L. D. 83; Wolf vs. Struble, i L. U. 449;
Watts vs. Forsyth, 5 L. D. 624: Christesen vs. Mathorn, 5 L. D,
537; Watts vs. Forsyth, 6 L. D. 306; Way vs. Matz.6 L D. 257.

By settlemen't one acquires an inchoate interest in the
land—of equal importance and validity of an entry-~wh:ch
his heirs inherit in case of death before entry.
Make Entry Within Three Months.
It is very impor­
tant that the entry be made within three months' from date
of settlement. A failure to make entry wtithin three months
from date of settlement, will open the land to the next set­
tler or claimant who has complied with the :aw. Sickness,
poverty, distance, neglect, oversight, mistake, unexpected
delay—in short, no excuse has been accepted by the depart­
ment, providing there is a valid adverse claim has attachea
either by settlement or entry.
Bishop vs. Porter, 2 L. D., 119.
Same Case, 3 L. D., 103.
Watts vs. Forsyth, 5 B. D., 624.
Same case, 6 L. D., 306.
Cresitensen vs. Mathorn, 7 L. D., 537.
Way vs. Matz, 6 D. D., 257.
Of course, if there is no valid intervening claim the entry
may be made at any time.
M. B. McNeal’s case, 6 B. D., 653.

18
Residence to Follow. The settler should then proceed
within a reasonable time—within thirty days if possible—
to establish his actual res.dence upon the land. If the settler
has a family he should remove his family to the claim with
him, but if his circumstances are such that he cannot take
his family to the claim with him, he should go to the claim
himself, prepare a home for his family and have his family
follow him as soon as practicable. If a settler makes entry
shortly after his initiatory acts of settlement and there
is another person claiming the land by virtue of settlement,
he should establish residence on the land as soon as possi­
ble. He should not take six months in which to establish
his residence on the land, after entry. To do ro would
probably be held an' abandonment of his settlement right,
and his rights would be held to attach only from entry. The
entry being subsequent to the settlement of the other claim­
ant, would be inferior, and thus the entryman, who in fact
made the first settlement, would lose the land, by reason of
not following h s settlement with residence within reason­
able time.
Settlement Defined.
Want of knowledge as to
what constituted valid settlemenit—selttlement that appro­
priated the land—and reservied it from the claims of others,
has caused many much trouble, great annoyance, expensive
litigaJtion, and finally the loss of a home.

The settlement of the lands in Oklahoma has led tío the
promulgation of a new rule or definition of séLtlement. In
o'ther words the Department of the Interior has, by vari­
ous decisions, held that the circumstances under which the
lands in Oklahoma and in some of the weistern states recent­
ly have been opened to settlement, have made it necessary
to modify the old rule. It is now well settled that wherti
lands are opened under such laws and regulations that
make it necessary for the séttlers to make a race for the
lands, the Department will take these circumstances into
consideration and not require settlers to perform such acts
as would const!tulte valid S'dttllement under the old condi­
tions where men could go deliberately, and initiate their seit-

19
tlemienlt rights. Pers®ns who contemplate taking claims by
settlemenit should, however, clearly understand the old rule
and for this reason we will firsit present this. It should be
borne in mind thalt the old rule is still in force except when
the settlement right is initiated upon the day of the open­
ing, or so near it, or under such circumstances, as make it
equitable ito apply the new rule.

SETTLEMlENT UNDER THE OLD RULE.

Secretary Teller says in the Howden-Piper case 3 L. D.
294: “It has also been repeatedly held by this department
that mere intention is insufficient to constitute a pre-emption
settlement, and that one claiming such settlement must do
something in the nature of reducing the land to his pos.
session, or of exercising ownership over it.”
See also Buchanan vs. Minton, 2 L. D. 186; Slate vs. Door,
2 L. D. 635.
There must be an intent to appropriate the land and some
act upon it indicative of the intent, and the two must
harmonize. Neither alone is sufficient.
The Secretary also quotes the opinion of Attorney General
Mason, to the effect: “From the moment, therefore, that
he (the pre-emption claimant) enters in person on land
open to such a claim with the animus manendi, or rathei
with the intention of availing himself of the provisions of
the act referred to, and does an act in execution of that in­
tention, he is a settler.” One can not make settlement
by agent. He must go upon the land in person.
No
amount of improvements will a^ail anything in the absence
of personal presence on the land. McLean vs. Poster, 2 L‘
D. 175; Byer vs. Burnell, 6 L. D. 521; Knight vs. Hauck, 2 L.
D. 188; Powers vs. Ady, 11 L. D. 175.
Two things are necessary—going upon the land with the
Intention of claiming the tract under the homestead laws,
and the doing of some act equivalent to the public an­
nouncement of his claim, so that his purpose will be mani­
fest. 10 C. L. O. 6.

1
20
An “actual settler” is one who goes upon the land speci­
fied with the intention of making it his home under the
settlement laws, and does some act in execution of such in­
tention sufficient to give notice thereof to the public. U.
S. vs. Atterberry, 8 L. D. 173; Lytle vs. Arkansas, 22 How.
193. The act of settlement is complete from the instant
the settler goes upon the land with the intention of making
it his home and performs some act indicative of such intent.
Franklin vs. Murch, 10 L. D. 582. One of the objects of
settlement is to give notice to all comers that the tract set­
tled upon is claimed by the settler. Burnett vs. Crow, 5
D. D. 372
An act of settlement must consist of some substantial and
visible improvements of the land, having the character of
permanency with the intent to appropriate it under the law.
Howden-Piper case 3 L. D. 162 and 291. Residence mast
follow settlement wihtin a reasonable time
The above indicates in a general way what constitutes
settlement The good faith of the claimant is always an
important factor, and one’s good faith is judged by his acts.
Every settler should do all within his power to give the
world notice of his claim. The settler's rights attach the
instant he goes upon the land and drives a stake, or blazes a
tree, or throws one spade of earth, or hoists a flag, or does
any act, however small, if he follows the act immediately
with acts of greater importance, with improvements of more
substantial nature, and continues on within a reasonable
time, by the erection of a habitable house, cultivation and
actual residence.
The homesteader should, ho wever, take no chances. From
the moment he sets foot upon the tract he should diligently
apply himself to the work of erecting substantial and perm­
anent improvements. He should take with him an ax and
spade, if nothing else. If there be timber on the claim, a
temporary house should be begun, with logs. If no timber

21
then a dug-out, should be begun, or some act done upon
the land that will in itself be notice to the world that the
tract is claimed by a settler. Mounds thrown up at the
corners, plowing, the erection of a tent, cutting poles or logs
and placing them in the form of a square, placing posts in
the form of a square, with even brush for a covering, or no
covering at all, are all acts which will suggest that the land
has been appropriated. As a matter of precaution the set­
tler should also have witnesses to his first acts of improve’
ments, so that in case of conflict, he may be able to prove
these facts. In contests over land, it is important that one
should not only have done the first acts of settlement but he
should be able to establish the fact by competent testimony.
The settler is required to make such improvements as will
be notice to the public, but in case others come upon his
claim he should at once notify them by word of mouth of
the extent of his claim. Actual notice, of one’s claim, in
the absence of improvements sufficient to give the world
notice, may answer the purpose of such improvements.
(Sanford vs. Cooper 11 L. D. 404.)
It is important for other reasons, however, that one de­
siring to enter a tract of land should make a careful exam­
ination of the land before filing.

First—That the settler may know the character of the
land he is entering.
Second—That he may know that no one else is claiming
the land.
Be certain that the land examined is the land being en­
tered. Frequently one enters through carelessness the wrong
piece of land. Even where one can show he has used rea­
sonable diligence in selecting his land, so that he may amend
his entry, it will nevertheless occasion much delay and con­
siderable expense.
Leading Cases.
The settler may be given a better
idea of what constitutes settlement by briefly con­
sidering a few of the cases decided by the Department of

J

r

23
the Interior.
These cases have arisen, where one has
claimed by settlement, the other by entry, or where the al­
leged settlement of the one who went upon the land first,
has been held insufficient to appropriate the landIn the Seacord-Talbert case, 2 L. D. 184, the Secretary of
the Interior held, that the driving of four stakes upon the
land, for the purpose of indicating a site for a house, was
not sufficient to hold the land. A third party by the name
of Adams, had done some breaking c i the land, partially
. dug a cellar, but had abandoned his improvements and
never had established a residence on the land. He in­
formed Seacord he would give up his claim if he would buy
his improvements. Seacord went upon the land and drove
four stakes to indicate where he would build a house in
case he decided to purchase it.
These stakes were driven
March 17, 1879.
He did not return to the land until April
28, 1879, over a month later, at which time he established
his residence upon it.
Talbert came upon the land March
28, 1879, with his family and at once established his res­
idence upon it. He had notice of Adams’ breaking and the
partially dug cellar, and of house in two parts, empty and
not set on a foundation, and of the fact that no one had
ever lived on the land. Talbert was given the land o> the
ground, that Seacord’s “temporary presence there on March
17, 1879, and the act of driving the stakes did not amount
to a legal settlement, and such a settlement he could only
effect by again going on the land, animo 'manendi'’^ that is,
with the intiiiiUon of remaining on the land.
In 3 L. D. 162 and 294, is reported the Howden-Piper case.

The facts are set forth in the opinion, page 294, as follows;
“Upon the day of Howden’s alleged settlement, a person
engaged in the business of locating settlers upon the public
lands, took Howden and two others to different tracts for
that purpose—the three each taking boards with them and
a pick. The first went to the lands in question—remaiainsr

not over one-half hour—where Howden, (one or more of the
others assisting him) ‘picked’ apiece of frozen ground about
six or eight feet in area, to an average depth of not over one
inch. He then erected two boards—at a different place—
(which were directly blown down) to show, in the language
of the witness, ‘that the land was taken,’ ‘to attract atten­
tion to his settlement,’ ‘and to give notice to the other
parties that he claimed the land.’ He did nothing further,
but returned to town, and soon after returned to Iowa for
the purpose of bringing his family to Dakota. He returned
to the land May 1, a period of over two months and a half
since he made his alleged settlement, it having been Febru­
ary 11 when he first went to the land. On March 30 Piper
purchased a house on the land from a former occupant,
broke and sowed to crop five acres, and was residing on the
land when Howden returned May 1. Secretary Teller, in
deciding the case, held that Howden’s doings manifested an
intent only to reserve the land for his future settlement
and that what he did was not “such an act of substantial,
or permanent, or visible improvement as amounted to an
act of settlement, or excluded the land from other actual
settlement,” and the land was aw^arded to Piper.
In Thompson vs. Jacobson, 2 D. D. 620, Acting Secretary
Joslyn says: “The erection of the board, with a statement
of his claim, was not an act of settlement, but indicative
merely of a future intent to settle on and claim the tract.”
This ruling was based upon the fact that the settler did
nothing else, but immediately returned to his former home
in Iowa. Sustaining these rulings see 2 L. D. 186, 635 and
620.
In Burnet vs. Crow, 5 L. D. 372, Acting Secretary Muldrow
says; “One of the objects of settlement is to furnish notice
to all comers that the tract settled upon is claimed by
the settler. A midnight settlement, followed by a depart­
ure of the party in a few’ houVs and before daylight, without
leaving any evidence of having been present, is such an act

24

25

as this department would be slow to accept as the settle­
ment required by the pre-emption law.”

In Bowman vs. Davis, 12 L. D. 415.
The facts set forth
in the opinion show that Bowman’s acts of settlement con­
sisted of “piling up a few stones” in one place, another
pile, estimated from 12 to 50, and in size from size of a
man’s fist to that of a bushel basket, in another locality,
and three small piles near northern boundary of the claim.
Fourteen days later he established residence on the land.
The local office held these acts were not sufficient to hold
the land and the Commissioner of the General Land Office
concurred. The Department of the Interior overruled the
decision.
Assistant Secretary Chandler quotes and ap­
proves the definition of settlement given in Franklin vs.
Murch, 10 L. D. 582, that “an act of settlement is complete
from the instant the settler goes upon the land with the
intention of making it his home, and performs some act in­
dicative of such intent,” and says.
“This definition of a
settler does not, in my judgment, require that such act
should necessarily be done in connection with his residence
on the land, such as commencing the erection of a house to
reside in, but it may be any visible act tending to disclose a
design to appropriate the land under and in accordance
with the pre-emption (homestead) laws. The fact that
Bowman did not intend to use the stones for the construc­
tion of a house, well or fence, or for any other purpose, ex­
cept to get them out of the way of the plow, is not mater­
ial.”
“It is sufficient that some such act is done denoting an
intention to claim the land.” The case of Etneir vs. Zoak,
11 L. D. 452, is quoted and approved.
Etnier’s acts of set­
tlement “which gave her priority, consisted in surveying
the land and throwing up sod mounds on the boundaries
of her claim.”
In the case of Cooper vs. Sanford, 11 L. D. 404, Sanford’s
acts of settlement consisted in cutting several poles from
the banks of the Arkansas river, each of which was about
twelve feet long, and from three to five inches in diam^er.

In Davis vs. Davidson, 8 L. D. 417, Assistant Secretary
Chandler says; “The digging of a few holes in ‘a gully’ near
the corner of the tract, placing posts in two of them, and
laying fifteen rocks on the ground, in a rectangular form
(whether in the guDy or not is not stated), at ‘dusk’ in the
evening, are not calculated to give the public generally no­
tice of the claim. The time and place (in a gully, after
dark)selected by Davidson, indicate, if his acts were other­
wise sufficient to constitute settlement, an intent to make
if that were possible) a clandestine appropriation of the
the land, and not an open, honest settlement, with a
view of giving the public notice of his claim.
But I
am of the opinion that Davidson’s actj of settlement
even if open and notorious were in themselves insufficient,
but at most indicated an intention to reserve the land for
future settlement.” These cases generally turn on the
fact that the other claimant did not have actual notice of
the existence of the first claimant’s settlement.
In Franklin vs. Murch, 10 L. D. 582, Assistant Secretary
Chandler says: “Franklin became an ‘actual settler’ the
instant he pitched his tent upon the land, with the inten­
tion of making it his home. The facts in the opinion show
Franklin put up a tent, and afterward erected a house and
resided upon the land. In Witter vs. Rowe, 3 L. D. 449, it
is said:
“The arrangement in the forifi of a square of a
few logs, left on the land by a former settler and not fol­
lowed by other acts of settlement and improvement, does
not constitute valid settlement.” These acts were done
May 20, and the adverse entry was made July 31, some six
weeks afterward. The entryman seemed to have no notice
of the alleged settlement and the settler gave no excuse
for not following his first acts* of settlement with further
acts of settlement and improvement.

26

27

He hauled them to the land, and placed them in the form
of a square, to represent a foundation. While he was plac­
ing the poles Cooper came up and asked Sanford “whether
he thought the structure of poles was sufficient to hold the
land.” Sanford said he did. Both parties left the land.
Cooper filed on it the next day. Sanford returned to the
land in about two weeks and established his actual resi­
dence on the land. The land was awarded to Sanford.
One important point in the case was that Cooper had actual
notice of Sanford’s claim, and the decision seems to have
turned largely on this point.
Actual notice of the extent
of the claim is as good as that given by improvements.
Hence, the importance of a settler informing all parties
who come upon his claim the extent of the settler’s claim.
This is especially important where the settler has not had
time to put upon his claim such permanent and visible im­
provements as would be regarded notice to the world.

attached, and the question is whether this act is such an
assertion of title as will defeat the entry of Chris Man. or­
dinarily it would not be deemed sufficient, in the absence
of actual noltice to the 'entryman, but in cases of this nature,
where the good faith of both parties is established and
neither parity is guilty of laches, I am of the opinion tha^t
the only sound rule that can be adopted is to award the
land to the person who was first upon the land and per­
formed any act that evinces an intention lo insert title.
“In the race for lands in Oklahoma Territory, the stick­
ing of a stake with a flag or card attached was the recog­
nized meithod of asserting possession, and too many cases
have been adjudicated in accordance with the rule above
stated to jusitify a departure therefrom.
“In the acquisition of homesteads in Oklahoma under the
Proclamation of the President and under the rules and Regu­
lations which anticipated the rush or race that, would inev’tably occur in the efforts of claimants to secure their home­
steads, and which rules and regulations sought to secufie to
all equal opportunity and fairness in competing for prior
possession or settlement, and where the rights of con­
testants for a certain tract are in other respects
equal, the maxim of Qui prior esl tempore prior est jure
applies, and he who was first
in point of time in
reaching the tract, and performed some act which signified
an intention to claim it as his own. and followed such pri
mary act by residence within such rea^’onable t’me as clear­
ly shows his good faith, should be held to have the better
title. No safer rule can in my opinion be anplied in such a
case than that he has the better title who was first in point
of time.”
The above case was cited and approved in Hensley vs.
Waner, 24 L. D. 62.
RESIDElNOE.
When to Establish.
There are two rules in regard
to 'WHEN residence should be esitablished upon a home­
stead claim, and it is very important to understand this and
clearly distinguish between the two. Where one initiates
his claim by settlement he must esitablish his residence
within a reasonable time and he does not have 'SIX MONTHS
in which to do this.
If one initiates his homestead right by entry he has six
months in which to establish his residence upon the land, at
which time he should have a habitable house upon the land
and bb living therein with his family. When rhe right to a

Oklahoma Rule. Though this may be called the
Oklahoma Rule, it applies in other States or Territories
where lands are opened under similar circumstances. This
rule was first announced in the case of Hurt vs. Griffin, 17
L. I)., 162. In th:s case it is said:
“It is a notorious fact, that in the great race for homes
in the Territory, he who first reached a tract and iST'AKElD
it, was regarded as the prior settler, and as eager as men
were to secure homes, this kind of setltlement was generally
respected by the honest people who rushed into the Terri­
tory, for as a matter of fact, to stake a claim, or dig a
hole, or put up a wagon sheet or tent, was about all that
the great majority of the settlers could accomplish in the
afternoon of the 22nd of April, 1889, circumstanced as they
were, and very many settlements have been held valid in
Oklahoma that were no better indicated, fixed and deter­
mined than was the settlement of Hurt. This setitlement
has been diligently followed up until it has ripened into a
good home, good faith being manifest at all times.”
In the case of Pienwell vs. iChristian, 20 L. D., 10, the
opinion says:

“The only act of the contestant done prior to the entryman consisted in setting said stake witl| his handkerchief

28
tract of land under the homestead law is initiated by set­
tlement and the settler desires to date his right to the land
back to the date of settlement, the actual residence must
follow within a “reasonable time.” In case of contest the
department would decide in each case, under all the circum­
stances, whether or not the residence was established with­
in a “reasonable time.” A “reasonable time” in one case
might not apply in another. One claiming by settlement,
should, if. possible, establish his residence on the land
within thirty days from settlement. If he cannot have his
family on the land in that time he should be there himself,
preparing a home for them, with the intention of having
his family follow him as soon as possible. If one initiates
his homestead right by settlement, and at any time within
three months makes entry of the land, and is certain he has
ho adverse claimant to the land, he may then abandon his
claim as to settlement and claim under his entry, and would
have six months from entry in which to establish residence
on the land. But if there is an adverse claim to the land,
residence must follow within a reasonable time after settle­
ment.
Rule Where No Contestant.
When one initialtes his
right by settlement, secures his entry, and has no con­
testant, he may, If he prefers, abandon his settlement right,
and hold only by his entry, in which case he has six months
from the date of his entry to make his residence on the land.
A seltltler should, however, be very careful to know not only
that he had no adverse claimant on the day of the opening,
but also that no other person had claimed the land at any
timie prior to day and hour of entry.

Rule Applicable to Soldiers.
Ex - Union
soldiers
should bear in mind that if they initiate their claims by
settlement, all the above apply to them. They may file their
Declaratory statements, if they choose, but if they want th°.ir
rights to date back to the hour or date of their settlement
they musit do two things, viz: 1. Make their actual home­

29
stead entry within three months from the date of their set­
tlement (and not within six months from the date of their
Declaratory) and 2. Establish their residence within a
reasonable time after their settlemen't, and not within six
months from the daJte of their Declaratory Statement, as
would be required were they claiming the land only from
the date of their Declaraitory.
WHAT CONSTITUTES RESIDENCE.

Mere Visits not Residerce.—Mere visits to the land to

keep up the fiction of a residence does not constitute a com'
pliance with the law. Hopkins’ case, 10 L. D. 472; Strawn
vs. Moher, 3 L D. 235; West vs. Owen, 4 L. D. 412.
In the West-0 wen case (4 L. D. 412) Secretary Lamar says:
“The idea that an individual can acquire or maintain a resi­
dence on a tract of public land, by making occasional visits
thereto while his family are residing elsewhere, and while
all his interests and household effects, apparently are with
his family, has been long since exploded, if, indeed it ever
had any real existence. That is to say. in order for an in­
dividual to establish residence on a tract of land, as required
under the homestead law, it is necessary that there be a
combination of act and intent on his part, the act of occupy­
ing and living on said tract, and the intention of making
the same his home to the exclusion of a home elsewhere.
That is a “true, fixed and permanent home, and principal
establishment and to which whenever he is absent, he has
the intention of returning.” “Story’s Conflict of Laws,
page 35.”
Acts indicating an intention to make the land a home, to
the exclusion of one elsewhere, are required to establish
the fact of residence in good faith. Wise vs. Fisher, 10 L.
D. 140. The excuse given in this case was severe weather,
a poor house, and an invalid wife. The evidence showed
the entry man was a man of considerable means, and the
department held all the circumstances did not show good
faith and the excuse given for absence from the land was

31

30
n T accepted. Kesideuce largely a matter of intent. Thomas
vs. Thomas, 1 L. D. 89.
Act and Intent.—In Mary Campbell’s case, 10 L. D. 331.
Secretary Noble says: “Residence, however, cannot be ac­
quired or maintained by going upon or visiting the claim
solely for the purpose of complying with the letter of the
law, with a view of thereby acquiring title to the land, no
matter how honestly the claimant believe.s such visits all
that the law requires. To establish residence the act of
gwing upon the land must concur with an intent to make it
a permanent home to the exclusion of one elsewhere.
Colorable Compliance.—“Residence is not acquired by
one who goes upon public land with the fixed intention
of leaving the same after a colorable compliance with the
law, and in the meantime substantially maintains a home
elsewhere. Spalding vs. Calfer, 8 L. D., 615. A settler who
goes upon public land with the intention of remaining just
long enough to secure title by a colorable compliance with
the law, and then returns to his former home where his
family has in the meantime resided, and the greater part
of his property remained, does not establish or maintain
the residence required by the homestead law. Van Astrum
vs. Young, 6 L. D. 25. A claim of residence is not con­
sistent with the substantial maintainance of a home else­
where. Van Gordon vs. Ems, 6 L. D. 422.
The letter of the homestead law is not the principal
thing. The spirit of the law must be complied with. Sid­
ney F. Thompson’s case 8 L. D. 285. Residence must be
personal. Tha residence and improvements of a tenant will
not avail. No amount of improvements will obviate the
necessity of or answer the place of actual residence of the
homestead entryraan. Farr el vs. Linde, 11 L. D. 602.
Persumed to be with Wife.—A married man’s residence,
is, in the absence of proof to the contrary, presumed to be
where his wife or family resides, Spalding vs. Calfer, 8
L. D. 615; Strond vs. Wolf, 4 L. D. 394; Bales vs. Bissell, 9

L.

1b. 546; Bullard vs. Sullivan, 11 L. 1). 22; Thomas E.
Henderson’s case, 10 L. D. 266; 2\ugie L. Williamson’s ca^e
10 L. D. 30; Garner’s case 11 L. D. 207. But entryman who
abandons his wife, not protected by the residence of his
wife on claim. Thomas vs. Thomas, 1 L. D. 89.
The residence of wife and family on land near the home­
stead tract, under the facts in George F. Herman’s case, 10
L. D. 326, held rebut claim of residence. Actual inhab­
itancy of the land, either actual or constructive, is required
to comply with the homestead law as to residence. Smith
vs- Brearly, 9 L. D. 175.
Residence must be in good faith,
and this good faith must be shown by the acts of the claim­
ant. The law abhors subterfuges and pretenses.
Dayton
vs. Dayton, 8 L. D., 284.
The Department of the Interior
cannot ignore the requirements of the law, because it
works a hardship to individuals. The letter and spirit of
the law must be complied with, as the law is construed by
the department. Crumpler vs. Swett, 8 L. D., 584. A claim
of residence is not compatible with the maintenance of a
home elsewffiere. Huck vs. Heirs of Medler, 7 L. D., 267.
Presence and Residence.—Presence and residence on land
are not synonymous, or convertible terms. Manning's case,
7 L. D., 144. Residence cannot be acquired without aban­
donment of the former home, and the act and intent must
concur. Penrose’s case, 5 L. D., 179. The acts of home
steader must not indicate a purpose to evade the require­
ments of the law. Benedict vs. Herberger, 5 L. D , 273.
Cultivation and improvements are not equivalents of res­
idence. Knox vs. Bassett, 5 L. D. 351. What is residence?
Every one of ordinary intelligence has in his own mind,
what is commonly meant by this term, but even our best
writers have difficulty in defining the term. Intention has
much to do in determining one’s residence, but in adminis­
tering the law, one’s intentions must be judged by his acts.
Justice Story, in his “Conflict of Laws,” says: “By the
term ‘domicile’ in its ordinary acceptation is meant the

r

33

32
place where a person lives or has his home. In this sense
the place where a person has his actual residence, or inhab­
itancy, is sometimes called his domicile. In a strict and
legal sense that is properly the domicile of a person where
he has his true, fixed, permanent home and principal estab­
lishment, and to which, whenever he is absent, he has the
intention of returning.” Bouvier defines residence to be
“the place where a person has fixed his ordinary dwelling
without a present intention of removal,” and cites 10
Mass., 488, 8 Cranch, 278.
Domicile.—The supreme court of Massachusetts (1st Met­
calf, 345), by the Chief Justice, Shaw, says: “The question
of residence, inhabitancy, or domicile—for although not in
all respects precisely the same, they are nearly so, and de­
pend much upon the same evidence —are attended with more
difficulty than almost any other which are presented for
adjudication. No exact definition can be given for domicile;
it depends upon no one fact or combination of circum­
stances, but from the whole taken together it must be de­
termined in each particular case.”
From these definitions it will be seen that it is often difficult to determine in what place a person has his true and
proper domicile. One’s residence is often of a very equivocal
nature, and his intention is often still more obscure. While
it may be difficult to define residence, it is very easy for a
homesteader to bring himself safely within the limits of the
term, and every settler should pursue the safe course.
Avoid the appearance of evil. Keep safely within the law
and rules and regulations of the department. Otherwise
contests, litigation, uncertainty, and endless trouble may
come, even though intentions may be good.
What Excuses Want of Residence.—It is not every absence
that constitutes abandonment, or breaks the continuity of
residence. When the good faith of the party appears, and
there is no adverse claim, and when the question of aban­
donment or failure to comply with the law is between the

4

entryman and the government, and when the failure to
comply with the law results from causes beyond the reason­
able control of the party, the clemency of the government
will be extended, and the entry will not be forfeited. Peter
vs. Spaulding, 1 L. D. 77. Threats and fear of violence and
an adverse decision by local land office have been held to ex­
cuse lack of residence. Nichols vs. Bird et al, 4 L. D. 43.
Actual, personal, and continuous residence is not necessary,
where one complies with the law as to cultivation and im­
provements, and has no other home, and all of his acts show
good faith. Edwards vs. Sixson, 1 L. D. 63. Residence
once established is not lost by temporary absence on busi­
ness. Hilton vs. Kelton, 11 L. D., 505; case of Patrick Man­
ning, 7 L. D., 144. Sickness and poverty has been held to
be a valid excuse for absence from claim.
LaBarre vs. Hartwell’s Heirs, li L. D., 497; Meyers’ case, 10 L.

D., 492; Riggs’ case, 10 L. D., 526; Smith’s case, 9 L. D., 146:
Peter Weber, 9 L. D., 150; John W. Anderson, 8 L. D., 517; Evan
L. Morgan, 5 L. D., 215.

Temporary Absence—Temporary absence occasioned by
poverty, and for the purpose of earning a livelihood, and
where the honest intention of the settler is apparent, will
be excused. Helen E. Dement, 8 L. D. 639. Absence caused
by sickness does not interrupt the continuity of residence:
James Edwards’ case, 8 L. D, 353. Absence from claim for
several years, to earn means to support the family residing
on the claim, is not abandonment, Thrasher vs. Mahoney.
8 L. D. 626, inhabitancy not impeached by temporary ab­
sence to secure means to improve the land, Pennell’s case,
8 L. D. 645, Farringer’s case, 7 L. D. 360. Absence rendered
necessary by sickness of parent does not constitute aban­
donment; Bailiff’s case, 7 L. D. 170.
Poverty will not ex­
cuse total want of residence; Geisendoffer vs. Jones, 4 L.
D. 185.
Absence to secure support and improve the land excused;
Prescott’s case, 6 L. D. 245; Israel Martel, 6 L. D. 566,
Tlwmpson’s case, 6 L. D. 576.

34

The condition of the family and severity of the climate
and poverty of claimant may be taken in consideration as
excuse for absence from the land.
Nilson vs. St. M. & M.
R’y Co., 6 L. D. 567, Olson’s case, 6 L. D. 311, Harris’ case,
6 L. D. 154; Ballard’s case, 6 L. D. 170, Sandell vs. Daven­
port, 2 L. D. 157; Clark vs. Davison, 2 L. D. 149.
The illness of the wife of claimant, requiring her to be
taken away for treatment excuses absence; Egbert vs.
Paine, 2 L. D. 156.
Threats and Violence.—Threats, intimidation and vio­
lence, against homestead claimant will sometimes excuse
want of residence. Underwo^^d vs. Eves, 2 L. D. 600; Miller
vs. Ransom, 3 L. D. 366. Actual violence is not necessary
to constitute such duress as will be an excuse for absence
from land. Dorgan vs. Pitt, 6 L. D. 616; Parsons vs.
Hughes, 8 L. D. 593. But failure to establish residence
will not be excused, on plea of duress, whpn a part of the
land, at date of entry and thereafter, is free from averse
claim. Swain vs. Call 9 L. D. 22.
Widows and Minor Heirs.—The widow or heirs of deceased
homestead entryman are not required to reside upon the
land, but may obtain title by complying with the law as to
cultivation and improvement.
Swanson vs. Wisly’s Heirs, 9 L. D., 31.
Tañer vs. Heirs of Mann, 4 L D., 433.
Stewart vs. Jacob, i L. D., 636.

The marriage of two persons, who are holding claims by
entry, will necessitate the abandonment of one of the
claims. Separate residences cannot be maintained. Gar­
ner’s case, 11 L. D. 207; Henderson, 10 L. D. 266; Tavener’s
case, 9 L. D. 426. But the marriage of a woman who has a
homestead claim will not invalidate her entry, if she and
her husband reside on her claim. Maria Good, 5 L. D. 196.
Absence on official duty was held to excuse absence from
land in the case of Reeve vs. Burtis, 9 L. D. 525; A. E. Flint;
6 L. D. 668.

35

Judicial Compulsion—Will excuse absence from the claim,
Kane et. al. vs. Devine, 7 L. D. 532; Anderson vs. Anderson,
5 L. D. 6; Bohall vs. Dilla, 114 U. S. 47.
Contest will not lie against homestead entry for abandon­
ment until expiration of six months and a day, from date of
entry, exclusive of day of entry. Baxter vs. Cross, 2
L. D. 69.
Leave of Absence.—By the act of March 2, 1889, settlers
may generally secure a leave of absence (see index) from
their claims for any valid excuse and they should not leave
their claims without first securing or attempting to secure
a leave of absence.
Length of Residence Required.
Section 2291 and 2292,
United States Revised Statutes, provide:
SEC. 2291. No certificate, however, shall be given, or
patent issued therefor, under the expiration of five years
from the date of such entry, and if at the expiration of such
time, or at any time within two years thereafter, the per­
son making such entry; or if he be dead, his widow; or in
case of her death, his heirs or devisee; or In case of a wid­
ow making such entry, her heirs or devisee, in case of her
death, proves by two credible witnesses that he, she or they
have resided upon or cultivated the same for the term of five
years immediately succeeding the time of filing the affidavit,
and makes affidavit that no part of said land has been alien­
ated, except as provided in section twenty-two hundred and
eighty-eight, and thait he, she, or they will bear true alle­
giance to the government of the United States; then, in such
case, he, she, or they, if at that time citizens of the United
States, shall be entitled to a paitent, as in other cases provid­
ed by law.
Minor Heirs. SEC. 2292.—In case of the death of both
father and mother, leaving an infant child or children un­
der twenty-one years of age, the right and fee shall inure to
the benefit of such infant child or children; and the execu­
tor, administrator or guardian may, ait any time within two
years after the death of the surviving parent, and In accord­
ance with the laws of the staite in which such children, fOr
the time being, have their domicile, sell the land for the
benefit of such infants, but for no other purpose and the
purchaser shall acquire the absolute title by the purchase,
and be entitled to a patent from the United States on the
payment of the office fees and sum of money above speci­

fied.

36
37
Commutation. SEC. 2301.—This is what is known as
“the commuted provision of the homes<tead law.” Under this
section, one could acquire title after six months res dence,
cultivation and improvement, and the paymenlt of the pre­
scribed amount of money. March 3, 1891, this section was
amended. The principal change was requiring FOURTEEN
months residence instead of six.

Amended section 2301 is as follows:

SEIC. 6. That section 2301 of the Reversed Statutes be
amended so as to read as follows:
SEC. 2301. Nothing in this chapter shall be so construed
as to prevent any person who shall hereafter avail h mse’f
of the benefits of section 2289 from paying the minimum price
for the quantity of land so entered at any time after the ex­
piration of fourteen calendar months from the date of such
entry, and obtaining a patent therefor, upon making proof
of settlement and of residence and cultivation for such
period of fourteen months, and the provisions of this section
shall apply to lands on the ceded portion of the Sioux res­
ervation, by acit approved March 2, 1889, in South Dakota,
but shall not relieve said settlers from any payments now
required by law.

The fourteen months clause in the above sedtion do s
not apply generally to the lands in Oklahoma. To deter­
mine the length of residence required, before title can be
acquired by payment, we mu^t refer to the special acts ap­
plicable to the various reservations.
Old Oklahoma.
By Section 21 of the Organic Act,
title to the lands opened to seittlement April 22, 1889, may
be acquired after twelve months residence, on payment of
$1.25 per acre.
Sac and Fox Lands.
The act opening the Sac and
Fox lands to siettlement, approved February 13, 1891, provid­
ed that title to these lands might be acquired, on proof of
twelve months residence, and the payment of $1.25 per acre.

Cheyenne and Arapahoe and Pottawatomie
Lands.
—The lands in these reservations, by Act of October 20,
1893, (28 Stat. 3) may be commuted after twelve months of
residence, and the payment of $1.50 per acre.

Cherokee Outlet and Kickapoo Lands.
These lands,
under act approved August 15, 1894, (28 Stat. 336) may be
commuted after fourteen months residence, on payment of
the prices per acre, as provided for in the act opening these
lands to settlement. The price charged for th Kickapoo
lands is $1.50. The prices for lands in the Cherokee Outlet
range from $1.j 0 to $2.50 per acre, according to location.
The Kiowa and Comanche Lands.
Under the act
of Congress, approved June 6, 1900, title may be acquired
to these lands after fourteen months’ residence, an the
payment of one dollar and twenty-five cents per acre.

Rights of Soldiers.
Below are quoted the sections of the revised statutes
conferring special privileges upon those who served for
ninety days in the army of the United ¡States during the war
of the rebellion. Upon lands where settlers are required to
make cash payment for lands, the soldier virtually has
no advantage, except to file declaratory statemenit person­
ally or by agent.

Se c t io n 2304. Tvery pnvate soldier and officer who has served
in the army of the United States during the recent rebellion, for
ninety days, and who was honorably discharged, and has remained
loyal to the government, including the troops mustered into service
of the United States by virtue of the third section of an act ap­
proved February thirteenth, eighteen hundred and sixty-two, and
every seaman, marine and officer who has served in the navy of the
United States, or in the marine corps,during the rebellion, for ninety
days, who and was honorably discharged, and has remained loyal
to the government, shall, on compli-’nco with the provisions of this
chapter, as hereinafter modified, be entitled to enter upon and re­
ceive patents for a quantity of public lands not exceeding one hun­
dred and sixty acres, or one quarter section, to be taken in compact
form, according to legal sub-divisions, including the alternate re­
served sections of public land along the line of any railroad or other
public work, not otherwisse reserved or appropriated, and other
lands subject to entry under the homestead laws of the United
States; but such homestead settler shall be allowed six months after
locating his homestead, and filing his declaratory statement, within
which to make his entry and commence his settlement and improve­
ment.

J

3S

39

Se c t io n 2305. The time which the homestead settler has served
in the army, navy, or marine corps shall be deducted from the time
heretofore required to perfect title, or if discharged on accoun of
wounds received or disability incurred in the line of duty, then the
term of enlistment shall be deducted from the time heretofore re­
quired to perfect title, without reference to the length of time he
may have served; but no patent shall issue to any homestead settler
who has not resided upon, improved and cultivated his homestead
for a period of at least one year after he shall have commenced his
improvements.
Se c t io n 2306. Every person entitled, under the provisions of
section twenty three hundred and four, to enter a homestead who
may have heretofore entered, under the homestead laws, a quantity
of land less than one hundred and sixty acres, shall be permitted to
enter so much land as, when added to the quantity previ­
ously entered, shall not exceed one hundned and sixty acres.
Sedtion 2307. In case of the death of any person who
would be entitled to a homestead under the provis ons of
section two thousand three hundred and four, his widow, if
unmarried, or in case of her death or marriage, then his
minor orphan children, by a guardian duly apponted and
officially accredited at the department of the interior, shall
be entitled to all the benefits enumeralted in this chapter,
subject to all the provisions as to settlement and improve­
ment therein contained; but if such person died curing his
term of enlistment, the whole term of his enl istment shall
be deducted from the time heretofore required to perfect
title.
Section 2308. Where a party at the date of his entry of
a tract of land under the homestead laws, or subsequently
there*to, was actually enlistd and employed in the army or
navy of the United States, his services therein shall, in the
administration of such homestead laws, be construed to be
equivalent, to all intents and purposes, to a residenca fo'
the same leng^th of time upon the tract so entered. And if
his entry has been cancelled by reason of his absance from
such tract while in the military or naval sevice of the
United States, and such tract has not been disposed of, h's
entry shall be resitored; but if such tract has been disposed
of, the party may enter another tract subject to entry ucder
the homestead laws, and his right to a patent therefor may
be determined by the proofs touching his residence and cul­
tivation of the first tract and his absence therefrom in such
service.
Sedtion 2309. Every soldier, sailor, marine officer or
other person coming within the provis ons of section two
thousand three hundred and four, may, as well by an agent
as in person, enter upon such homestead by filing a declara­

tory statement, as in pre-emption cases; but such claimant
in person shall within the time prescribed make his actual
enJtry, commence settlemenlt and improvememts on the same,
and thereafter fulfill all the requirements of law.
Exhausts Homestead Right»
'The declaratcry exhausts
homestead right. The filing of soldier’s declaratory state­
ment, generally speaking, exhausts the homestead right.
Roberts vs. Howard, 4 L. D. 562; Stevens vs. Ray, 5 L. D.
134; case M. C. Arter, 7 L. D. 136. An exception to this rule
has been held where there was a prior adverse right to the
land at the time the declaratory s'tatement was filed. 4 L.
1). 9; 6 L. D. 362.
The act of 'March 2, 1889, (25 Stat. 854) ; 8 U. D. 317, pro­
vides that “any person who has not heretofore perfected
title to a tradt of land of which he has made entry, under
the homestead laws may make a homestead entry of not
exceeding one quarter section of public land subject to such
entry, such previous filing or entry to the contrary not­
withstanding.” /See 9 L. D. 382; 11 L. D. 384.
Under this sedtion it has been held that filing declaratory
statlement prior to March 2, 1889, and failing to secure title
thereunder, does not preclude that person from filing
another declaratory and entry thereunder. 9 L. D. 382; 11
Ij . D. 384.

Declaratory Statement, Form»

For forms and blanks to

make soldier’s filings, see “Forms.” pp. 42 to 44.
Certificate of Discharge» A soldier in filing a declaratory
statement must file therewith the original or a certified
copy of his discharge. In case the discharge or a duly cer­
tified copy thereof cannot be produced, the soldier’s own
affidavit, showing his service in the army, should be cor­
roborated by two disinterested witnesses, but in case it is
shown that the two witnesses cannot be produced, then the
applicant’s own affidavit will answer. The soldier in filing
his declaratory statement by himself or agent, thereby
uses and exhausts his homestead right.
This is the general rule with the same exceptions as to
amending entry and making second enJtry as would gen-

J

40
erally be allowed in homestead entries.
'A declaratory statement does not segregate the land
from the public domain and another will be permitted to
make enitry upon the same tract. The second entry will
not interfere with the soldier’s right to perfect his entry and
hold the land. See 1 L. D. 79.
Six Months to Make Entry and Establish Residence.
The soldier or marine must within six months after filing his
declaraJtory statement, make his final entry, commence set­
tlement and improvement and thereafter fulfill all the re­
quirements of the law. A failure in any of these partic­
ulars will cause a forfeiture of the land, in presence of an
adverse claim. Prior to December 15, 1882, (1 D. D. 648,
and Milne vs. Ellsworth, 3 L. D. 213), a soldier’s homestead
entry was not subject to contest until siix months after
homestead entry, thus giving the soHdier twelve months
from date of declaratory statement to commence his settle­
ment and establish his residence on the tract.
As shown'by the above references this is no longer per­
mitted, and the soldier must make his entry and establish
his residence in a habitable dwelling within six months
from filing his declaratory statement. .Charles Hotaling,
3 D. D. 17; Snyder vs. Elllison, 5 L. D. 353; Joseph M. Adair,
6 L. D. 200. For climatic reasons General Land Commis­
sioner may extend the time to one year, 6 L. D. 368.

Caution to Soldiers Making Settlement.
Ex-soldiers
shoud not be confused or -mislead by the above. The rule
allowing the soldier six months in which to establish his
residence and make entry of the land, applies only when
his claim is initiiated by the declaratory statement. If the
soldier initiates his right by settlement, and desires his
right to relate back to the dalte of his settlement, he must
establish his residence within a reasonable time and make
his entry within three months from date of his settlement.
Otherwise he forfeits his settlement right and holds only
from date of the filing of his declaraJtory statement. This is
very important in case of contest between claimants to determJine who has the prior right to a tract of land.

41

1

In Wood vs. Tyler, 22 Li. D., 679, the Secretary of Interior says:

“The purpose of the hearing was apparently to enable
Tyler to show when he made settlement on the land c’aimed
by him, his contentions being that his Settlement was prior
to‘that of Wood, was protected by his said declaratory state­
ment, and therefore his right to the land in controversy wa»
superior to that of Wood. In view of the fact that Tyler
did not make entry nor apply to make entry of the land
until October 18, 1899, mbre than three months after his al­
leged seittlement, and subsequent to the entry of Wood, it
is immaterial in face of Wood’s settlement, contest, and en
try when Tyler made his settlement *
*
*
If he (Tyler) elects to stand upon hils settlement and
entry, even conceding for the sake of argument, that his Set­
tlement was prior to that of Wood, he was fatally in default
in failing to make entry within three months of his settle
* ment, as ag-ainst Wood’s contest and prior entry.”
In Thomas vs. Reed, et al. 27 L. D., 532, this question wag
further discussed. The opinion says:

‘Where one who files a sold er’s declaratory statement
is also the priJor sbttler, he may at his election, make sucn
settlement the basis of his right to the land by mak ng ap­
plication to make entry thereof under the act of May li,
1880, supra or he may permit that time to expire and then
make entry under his declaratory staltement: In the
former case his right shall relate back to date of s ttlement, the same as if he settled under the pre-emption laws,
and in the 'latter case his right will relate back only to the
date of filing h's Soldier’s Declaratory Statement.” See
Jared vs. Reeves, 27 L. D., 597.
Computat’on
of
Time.— In computation, the 6
months in which Soldiers may make his homestead entry,
after filing his Declaratory Statement, the day of filing
the declaratory statement should be excluded and tne last
day of the specified period included. Garner vs. Byers, 24 D.
D., 38.
Filing Declaratory by Mail.— In Culom vs. Hemer,
et al., 22 E. D. 392, it was held that a Soldier’s Declaraltory Statement could not be filed through the mail,
but must be personally presented by agent or in person. In
this decision the case of Wickstram vs. Calkins, 20 E. D..

J

1
42

42
459, was directly overruled. See also ex parte, Phillip Cas^y,
21 ¿L. D., 551. Also see Thrailkill vs. Long, 24 L. D., 639.
Service in Army Equivalent to Residence.— The Act of
Congress approved June 16, 1898.
(30 Stat. 473), provides:
That in every case in which a settler on the public
land of the United States under the homestead laws enlists
or is actually engaged in the Army, Navy, or Marine Corps
of the United 'States as private soldier, officer, seaman, or
marine, during the existing war with Spain, or during any
other war in which the United States may be ingaged, his
services therein shall, in the admm stration of the homeste d
laws, be construed to be equivalent to all intents and pur­
poses to residence and cultiva.ion for the same length of time
upon the tract entered or settled upon; and hereafter no
contest shall be initiated on the ground of abandonment.,
nor allegation wf abandonment susta'ned against any such
settler, unless it shall be alleged in the preliminary affi­
davit or affidavits of contest, and proved at the hearing in
cases héreafíter initiated, that the settler’s alleged absence
from the land was not due to his employment in such ser­
vice: Provided,
That if such settler shall be dscharged
on accounit of wounds received or disability incurred in
the line of duty, then the term of h's enlistmenft shall be
deducted from the required length of residence without
reference to the time of actual service: Provided further.
That no patent shall issue to any homestead set­
tler who has not resided upon, improved, and cultivated
his homestead for a period of at leaslt one year after he
shall have »commenced his improvements.
Power of
Attorney.—Soldiers desiring to give power
of attorney to another to file declaratory statemen/ts
for them may use the following form:
(FORM 1.)

SOLDIER’S POWER OF ATTORNEY.
I,................................................................. of............................................

County, and State or Territory of................. ...................................
do solemnly swear that I served for a period of......................
in the army of the United States during the war of the re­
bellion, and was honorably discharged therefrom, as shown
by a statement of such service herewith, and that I have re­
mained loyal to the Government; that I have never made
homestead entry or filed a declaratory statement under Sec­
tions 2290, 2304, or 2309 of the Revised Statutes;.........
do hereby appoint,..
of.................

ana state or........................................ my true ana lawiui agent,
under Section 2309 aforesaid, to select for me and in my
name, and to file my declaratory statement for a homestead
under the aforesaid sections; and I hereby give notice of my
intention to claim and enter said tract under said statute;
that my said attorney has no interest; present or prospect­
ive in the premises, and that I have made no arrangement
or agreement with him or any other person for any sale or
a,.tempted sale or relinquishment of my claim in any man­
ner or for any consideration whatever, and that I have not
signed this declaration in blank, that I am not the proprie­
tor of one hundred and sixty acres of land in any
State or Territory, that my said application is honestly and
in good faith made for the purpose of actual settlement and
cultivation, and not for the benefit of any other person, per­
sons or corporation, and that I will faithfully and honestly
endeavor to comply with all the requirements of law, as to
settlement, residence, and cultivation necessary to acquire
title to the land applied for; that I am not acting as agent
of any person, corporation, or syndicate, in making such en­
try, nor in collusion with any person, corporation or syndi­
cate to give them the benefit of the land entered, or any
part thereof, or the timber thereon, that I do not apply to
enter the same for the purpose of speculation, but in good
faith to obtain a home for myself, that I have not directly
or indirectly made and will not make any agreement or con­
tract, in any way or manner, with any person or persons,
corporation or syndicate, v^hatsoever, by which the title
which I might acquire from the Government of the United
States shou'd inure in whole or in part to the benefit of any
person except myself, and further tha t since August 30, 1890,
I have not entered under the laud laws of the United States,,
or filed upon, a quantity of land, agricultural in character
and not mineral, which with the tracts now applied or
would make more than three hundred and twenty acres..
(Here add an exception, if any, of land entered prior to>
August_30j 1890, giving date of settlement commenced, and
describing improvement.)
Acknowledged, sworn to and subscribed before me this!
......... day of......................189...., and I certify that the forego-^
ing declaration was fully f.Red out before being subscribed
and attested.
..................................................................... ...............
[Official Seal.]

1

7

44

ATTORNEY’S STATEMENT.
By virtue of the foregoing, and of a certain power of attor­
ney therein named, duly executed on the... .day of .;...........
and filed herewith, I herewith select the.........................................
as the homestead of the.....................................aforesaid, and do
solemnly swear that the same is filed in good faith for the
purpose therein specified, and that I have no interest or au­
thority in the matter, present or prospective, beyond the
filing of the same as the true and lawful agent of the said
........................as provided by Section 2209 of the Revised Stat­
utes of the United States............................................................Agent.
Sworn and subscribed to before me this .. .day of. .. . 189..
[o f f ic ia l s e a l !
.........................................
DECIiA'RATORY ST'ATEiMElNT.
Declaratory Statement.—The following may be used
where soldier files declaratory in person:
(Form 2.)
“'I,...........................of...................................................................County,
and State or Territory of................................ do solemnly swear
that I served for a period of...............................in the Army of
the United States during the war of the rebell ón, and wa?5
honorably d scharged therefrom, as shown by a Statement
of such service herewith, and that I have remained loyal
to the government; that I have never made homestead en­
try or filed a declaratory statement under sections 2280
and 2304 of the Revised Statutes; that I have located as a
homestead under said statute the................... quarter of sec­
tion...........................in township .....................................range................
That I am not the proprietor of 160 acres of land in any
state or territory; that my said application is honesitly and
in good faith made for the purpose of actual settlement
and cultivation, and not for (the benefit of any other person,
persons, or corporation, and that I will faithfully and
honestly endeavor to comply with all the requirements of
law as to settlement, residence and cultivation necessary
to acquire title to the land applied for; that I am not actng as agent of any person, corporation, or syndicate, in
making such entry, nor in collusion with any person, cor­
poration or syndicate to give them the benefit of the land
entered, or any part thereof, or the timber thereon; that
I do not apply to enter the same for the purpose of specula­
tion, but in good fa th to obtain a home for myself, and
that I have not directly or indirectly made, and will not
make any agreement or contract in any way or manner,
with any person or persons, corporation or syndicaJte what­
soever, by which the title which I might acquire from the
Government of the Uhited States should inure in whole or in

45

part to the benefit of any person except myself, and further,
that since August 30, 1890, I have not entered under the land
laws of the United States, or filed upon, a quantity of land,
agricultural in character, and not mineral, which with the
tracts now appl ed for, would make more than three
hundred and twenty acres....................................................................
and hereby give notice of my intention to c’aim and enter
said tract.
iMy present postoffice address is...............................................

'Sworn and subscribed to before me this............day of
.............................. 190..
(Seal.)
Note.—This form may be used where the soldier files
his own declaratory statement.

Conflicting Claims.
Conflicting Claims and Contests.—Conflicting claims and
contests are not infrequent. Every settler should know
how to proceed that he may not lose any rights which he
may have acquired. A settler should not leave the land
until he has done sufficient to constitute valid settlement.
Settlers are often in too great haste to get to the land office
and make entry. There is some advantage in securing the
entry, but one who relies upon his settlement right should
not fail in his initiatory acts. In the preceding pages,
what constitutes valid settlement has been shown. When
this is done, one should, without delay, go to the proper
land office and make his entry. He should immediately re­
turn to his land, and make further improvements, and fol­
low with the residence within a reasonable time. If one
finds that the land on which he settled has been entered by
another he may proceed in two ways:
Fir s t :—He should present himself at the proper land
office, and offer his written application, and necessary
affidavits, to enter said land and at the same time tender fees
and commissions. There being one entry on the land, the
second application will be rejected. The applicant should
request the register of the land office to endorse the re-

4«

47

jection and the reasons therefor on the application. The
application and affidavits should then be left with the land
office officials. The fact of the application will then be
noted on the records. He should then within thirty days
from that date (the time allowed for appeal to the com­
missioner from the rejection of his application) file a con­
tent affidavit in the land office, alleging his priority of set­
tlement. The contest affidavit must be corroborated by at
least one witness. The Department has held that where
another has wrongfully entered the land, as against a
prior settler, the filing of a contest within thr?e months,
protects the settlers rights and the formal application to
enter is unnecessary.
Second.—'A practice more simple than the above and
perhaps preferable, is to file with your application to enter
the land, an affidavit alleging fact of settlement, date or
time of settlement, and adts constituting the settlement.
If the allegations show settlement prior to date or time
of entry the application will not be rejected, but a hearing
(content) will be ordered to determine who is entitled to
the land. See James, et. al. vs. Nolan, 5 H. D. 526; James
A. Forward’s case, 8 E. D. 528.
Willis vs. Parker, 8 H. D.
623; Todd vs. Tait, 15 H. D. 379; Baxter vs. Crilly, 12 L. D.
684; Ex parte Austain, 18 L. D. 23.

ïîules for Amending Entries.—Applications to amend filings or
entries must be tiled with the register and receiver, and be by them
transmitted for the consideration of the coihmissioner of the gen­
eral land office. Registers and receivers will hôt change an entry
or filing so as to describe another tract, or change a date after the
same has been recorded.
A party who alleges a mistake in the description of his filing or
entry and desires to amend or change the same so as to describe
another tract may do so in the manner herein prescribed.
He must file with the register and receiver a statement under
oath, corroborated by at least two witnesses, or sustained by strong
corroborating facts and circumstances, showing the nature of the
alleged mistake and how the same occurred, and that every reason­
able precaution and exertion had been made to avoid the error, and
that he has not sold, assigned, or relinquished his alleged errone­
ous filing or entry, or his claim to the land described therein, nor
agreed to do so.
He must show that the error did not result from want of per­
sonal examination of the land by himself before making his filing or
entry, and must state the date when he first examined the land he
desired to enter and thé date he commenced his settlement or im­
provements thereon, if any, and the character, extent and value of
any such improvements, and how he learned that the alleged error
in description had been made.
The register and receiver must investigate the facts and transmit
the evidence submitted to them in each case to the commissioner of
the general land office, together with their written opinion both as
to the existence of the mistake and credibility of each person testi­
fying thereto and their recommendation in the matter.
In case of an application for an entry being returned to the dis­
trict land office for amendment, the register and receiver should
write across the face thereof: “Amended to [here inserting the
proper description] as per Commissioner’s letter of [here giving in­
itial and date].’’ This notation must be signed by the entryman,
after which the register and receiver will attest the same over their

Amending Entries.
Amending
Entries. Sometimes an entry is made by
mistake, and the land intended to have been entered is
still free from any valid adverse claim.
In such case the
proper method is to apply to amend the original entry, by
transferring it to tract desired.
Johnson vs. Cjevre, 3 L. D. 156.
Brown vs. West, 3 E. D. 413.
Florey vs. 'Moat, 4 E. D. 365.
Sloatskey*s case, 6 E. D. 505.
Barr’s case, 6 L. D. 644.

Cowen vs. Asher, 6 L. D. 785;

/

signatures and return the application to this office. Circu­
lar General Eand Office, 1899, p. 90.

Relinquishment.
The first section of the act of 'May 14, 1880 (See Index)

provides that when
a
timber culture claimant

pre-emption,
homestead
or
shall file a written relin-

4S

quishment of his claim in the land office, the land covered
by such claim shall be held as open to settlement and entry
vvithout further action on the part of the Commissioner of
the General Land Office.
The register will note on each relinquishment, over his
signature, the day and hour of its receipt, and will write
the words “cancelled by relinquishment” (giving date) oppo­
site the record of the entry in the tract book, the register of
entries, and the register of receipts, and will draw a line
over the number of the entry on the township plat.
On Monday of each week the register and receiver are
directed to transmit to this office all the relinquishments
accepted by them the preceding week, classifying the same
in their letter of transmittal by class of entry so trans­
mitted.
Relinquishments run to the United States alone, and no
person obtains any right to the land by the mere purchase
of a relinquishment of a filing or entry.
Entries and filings made for the purpose of holding the
land for speculation and the sale of relinquishments are
illegal and fraudulent, and every effort in the power of the
government will be exerted to prevent such frauds and to
detect and punish the perpetrators.
Purchasers of relinquishments of fraudulent filings or
entries should understand that they purchase at their own
risk so far as the United States is concerned, and must seek
their own remedies under local laws against those who, by
imposing such relinquishments upon them, have obtained
their monev without valuable consideration.
Gen. Cir. 1899, p. 91.
FORM OP REiLINQUIStHMENT.

The following form may be used in executing a relin­
quishment:

PORIM 3.
I heheby relinquish to the United States all my right,
title, and interest to and in the following described tract of
land, to-wiit: (here describe the land) and request that my
homestead entry No----------------- be cancelled of record.
(Signature.)....................................
day
Subsci^i'bed and acknowledged before me this
of
(Seal.)
(Signature of officer.)........................................

The relinquishment should be acknowledged before an

1

officer having a seal, to avoid any question concerning the
legality of the same.
The Receiver’s Duplicate receipt, should be filed with re­
linquishment, or affidavit should accompany • relinqu shment
accounting for the absence of the same.
Before filing relinquishment, records should be examin­
ed to see that no adverse right is of record.
DEOISIONS OP DEPARTMENT.

Not voluntary when made because of conflict, 1 L. D.
If filed pending contest it inures to the benefit of con­
testant, 1 L. D. 103, and 155, 145.
Executed but not filed is not proof of abandonment, 2 L,
D. 28.
Executed but not delivered to the government is not a,
ground of contest. 2 L. D. 41.
Takes effect immediately on filing, notwitnslanding con­
test and opens 'the land to the first legal applicant subject
to the preferred right of the successful contestant, 2 L. D.
266, 283, 313 and 619; 3 D. D. 343, 560; 13 D. D. 192; 15 D.D. 182.
May be shown to have been filed independently of the
contest and is then not evidence for the contestant. 2 L. D.
283.
Of no effedt until filed. 3 L. D. 224.
'Piled as result of a contest inures thereto. 3 L D. 225; 8
L D. 357-400.
Void if procured through fraud, 4 L, D. 281; 3 L. D. 376
Filed pending contest prima facie the result thereof but
such presumption is not conclusive. 7 L. D. 442 and 46; 13
L. D. 437.
Piled pending contest presumed to be ’the result there f
but this presumption may be overcome. 9 L. D. 440 and 431;
11 L. D. 65 and 210; 13 L. D. 196-495.
Basis of contes't. 15 D. D. 495.
Executed during intoxication. 14 L. D. 133.
Accompanied with the application to en'er. 11 L. D.
Right of transferee. 14 L. D. 224-644.
Inures to whose benefit. 14 L. D. 306, 3^
420.
Failure of local officers to properly note. 15 L, D. 121.
Executed by a minor.
15 L. D. 162.
Purchaser of acquires no right to the land.. 15 L. D.
Admlinistrator not authorized to file. 15 L. D. 261.
Contesitant may proceed with his shit and e^'ab’ish the
ab’
charges. 15 L. D. 320.
Subject to prior settlement right. 15 L. D. 42
Rights of a deserted wife to enter the land. 15 L. D. 555.

Filed pending proceedings by the Government takes

50

effect at once, and the land Is opened to the first legal appli­
cant. 26 B. D. 337.
If relinquishment is filed, pending attack by several
parties alleging sfettlement, the question of prior'-ty should
be determined before either parity is allowed to make entry.
26 B. D. 177.
Entry must be reinstated when relinquishment is pro­
cured from a person of unsound mind. 26 L. D. 178.
(Must be voluntary act of enitryman. 25 L. D. 197.
Not the result of a contest, when, at the date of its ex­
ecution, notice of contest had not issued, and entryman had
cured his default. 25 B. E. 359.
Probalte Court has no authority to author’ze the guard­
ian of insane person to execute a relinquishment. 24 L». D. 494.
Cannot be held to be the result of contest which pror to
the relinquishment had been decided in favor of Ithe entryman. 24 L. D. 428.
Takes effect
eo instantly when filed. 23 L. D., 492.
May be made on part of the land covered by entry. 22 L».
D. 128.
'The Department has nothing to do wi^th consideration be­
tween the parties. 22 B. D. 150.
Executed and delivered to secure debt, entryman cannot
complain if filed for non-payment of same. 22 B. D., 398.
Who can call in quesition the legallity of? 22 B. D. 415.
Does not inure to the benefit of contestant, unless filed
as a result of contest. 21 B. D., 333.
Cannot operate, to defeat, or impair the right of contest­
ant. 21 B. D., 474.
Not necessary to be acknowledged before an officer. 17
B. D., 393; 20 B. D. 366.
To inval'date, on account of alleged lintoxication of en­
tryman, must be shown that he was deprived of the use of
his reason and undersltanding through his intoxication. 20
B. D. 195.
Does not defeat the right of contestant. 18 B. D. 92, 108,
Inetfectual, until filed. 18 B. D. 589.
Holder of relinquishment not entitled to contest the en­
try. 18 B. D., 144 358.
Purchaser of relinquishment does not secure preferred
right to enter the land. 17 B. D., 180.
Irregularities in the execution of. 17 B. D. 396
Right of settler on land covered by entry of another at­
taches at once on filing of relinquishment and defeats an
application to enter filed by the third party, immediately
after the relinquishment. 16 B. D. 386.

J

Leave of Absence^
Act March 2, 1889.—By the third section of act of congress
approved March 2, 1889, the Register and Receiver of local
land offices are authorized to grant settlers leaves of ab­
sence, for certain causes, for not exceeding one year. The
section is as follows:
Se c . 3. That whenever it shall be made to appear to the register
and receiver of any pub’ic land office, under such regulations as the
Secretary of the Interior may prescribe, that any settler upon the
public domain under existing law is unable by reason of a total or
partial destruction or failure of crops, sickness, or other unavoid­
able casualty, to secure a support for himself, herself, or those de­
pendent upon him or her upon the lands settled upon, then such
register and receiver may grant to such settler a leave of absence
from the claim upon which he or she has filed for a period not ex­
ceeding one year at any one time, and such settler so granted leave
of absence shall forfeit no rights by reason of such absence. Pro­
vided, That the time of such actual absence shall not de deducted
from the actual residence required by law.

Application for Leave of Absence.—Under the regulations
of the department of the Interior, one desiring to obtain a
leave of absence from his claim, should present his written
application therefor to the local land office. He must show
in his application, duly corroborated by affidavit of at least
two witnesses, the following facts;
1. The character and date of the entry, date of establish­
ing residence on the land, and what improvements have
been made thereon by the applicant.
2. How much of the land has been cultivated by the ap­
plicant and for what period of time.
3. In case of failure or injury to crop, what crops have
failed or been injured or destroyed, to what extent and the
cause thereof.
4. In case of sickness, what disease, or injury, and to
what extent claimant is prevented thereby from continuing
upon the land; and if practicable a certificate from* a reliable
physician should be furnished.
5.

In case of “other unavoidable casualty the character,

52

53

cause and extent of such casualty, and its eitects upon the
land or the claimant.
6. In each case full particulars upon which intelligent
action may be based by the register and receiver.
7. The dates from wh'ch and Ito which leave of absence
is asked. (9 D. D. 433.)
Leave of absence is no protection against a contest filed
for abandonment, where the entryman prior to such leave
has failed to comply with itlhe law. Silva vs. Paugh, 17 B. D.,
540; Carpenter vs. Porness, 21 L. D., 428; 29 L. D., 203; Yarbeau vs. Graham, 16 B. D. 348.
Where leave of absience has been granted contest for
abandonment will not lie until 'the expiraitlion of six months
after the time for which the leave was granted. Hiltnzr, vs.
Wortler 18 L. D., 331; Jacobs vs. Brigham 26 L. D. 268.

“But until said lands are opened for settlement by procla­
mation of the President, no person shall be permitted to
enter upon and occupy the same, and no person violât ng
this provision shall ever be permitted to enter any of said
lands or acquire any r ght thereto.”
A similar provision has been applied to all the reservatilons which have heretofore been opened to settlement in
Oklahoma.
KIOWA AND OOIMANCHE BANDS.
The Adt of June 6, 1900, providing for the opening of th?
Kiowa, 'Comanche, and Apache lands, does noit contain any
provis'ion prohibiting entry upon said lands prior to the time
the same shall be opened to settlement, by the Proclama­
tion of the President, and does not provide for any penalty
for entering upon and occupying said lands prior thereto.
We will, however, give below the important decisions of
the Interior Department upon what is known as the
“Sooner” clause in various acts applicable to tracts of land
opened to settlement in Oklahoma.

Citizenship and Naturalization,
iLS. Parities should in all cases of application to make
entry and in final proof state distinctly whether 'they arenative-born or natural zed citizens. If naturalized, evidence
of naturalization should be filed with the original entry ap­
plication. (If not naturalized, evidence of declaraltiion of in ­
tention should be filed at the t me the first entry or appli­
cation is made.
The certification of naturalization papers or other court
records should be received only when made under the hand
and seal of the clerk of the court in which such papers ap­
pear of record, but where a judicial record is shown to have
existed and is now lost or destroyed proof of the same may
be made by secondary evidence, in accordance with tne rules
of evidence governing such proof.

Soonerism.
The term “soonerism” has acquired a well defined mean­
ing in Oklahoma, and, as used with reference 'to the public
lands means the entering upon and occupying lands in 'ths
Territory, prior to the time said lands are legally opened to
entry and settlement.
Act of iMarch 2, 1889-^Seminole Bands—^The act of
March 2, 1889 (see index), the original Oklahoma act, con­
tained the following clause:

I

The Law Construed.—The prohibitory clause in the act of
March 2, 1889, above quoted, has been construed by the In­
terior Department in a number of important cases. In
Blanchard ys. White etal., 13 L. D., 66, it was held that one
who entered the lands prior to the time the same were
legally opened to settlement, in violation of the act of March
2, 1889, and the proclamation of the President issued there­
under, with the intent to secure an entry in advance of
others, is disqualified to make an entry under said act.
Also, “that the disqualification imposed by said statute
extends to the applicant who remains outside of said Terri­
tory until noon of April 22, 1889, but seeks to evade the pro­
hibitory provision of the statute through the instance of
another, who he has theretofore employed to enter said
Territory for such purpose.”

In other words, to send an agent in prior to the time
the lands are legally opened, to aid one in scuring advan­
tage of others, would disqualify the one whose agent so
entered.

54

In the Oklahoma City Townsite vs. Thornton et al., 13
L. D., 409, the sillahus of the case is as follows: “Any per­
son who entered within the limits of Oklahoma Territory
prior to the time for the opening of the lands therein to
settlement, and remained therein up to and after the hour
fixed for said opening, and who took advantage of his pres­
ence to enter upon and occupy lands, shall not be permitted
to obtain title to the same, even though he was lawfully
within the limits of said Territory prior to the hour of tho
opening.”
In the Guthrie Townsite vs. Paine et ah, 13 L. D. 562, it
was held, “a settler on Oklahoma lands cannot evade the
prohibitory effect of the statute by ezxtering said Tex'iltory
through the assistance of one who enters the same prior to
the time fixed for the opening thereof.” In the same case,
as reported in 12 L. D, 653, it was held: “The entry of one
who was lawfully within said Territory prior to noon, Apxdl
22, 1889, and takes advantage of his presence therein to
secure settlement right in advance of others is in violation
of the statutes opening said lands to s
cinent.” Also,
“that soldiers’ declaratory statements iiied on April 22,
1889, through an agent who was in the Territory prioi' to
12 o’clock, noon, of said day, is illegal and void.” Also, “a
townsite entry cannot be allowed in the interest of those
who entered said Territory prior to the time fixed in the
President’s proclamation, and in violation of tho statutes
opening said lands to entry,”

in advance of others, is d.’squalified by statutory provision
from acquTing title thereto.”
In Hagan vs. Severns, et at, 15 B. D. 451, it was held:
“One who is lawful y within the Territory of Oklahoma
at the opening thereof, but takes advantage of his presence
to secure lands in advance of others, is not qualified to per­
fect title.”
In Faull vs. Bexington townsite, 15 B. D., 389, it was h^ld:
“The provisions of section 13 of the act of March 2, 1889,
(above quoted) prohibit the examination and selection of
the tract after the date of said act and prior to the time
fixed for the opening to settlement of the lands embraced
therein.”
In Donniel vs. Kittrell, 15 B. D., 582, it was held: ‘One
who by mistake enters Oklahoma Territory prior to the
time fixed by proclamation for settlement therein, but takes
no advantage of his presence in said Territory and leaves the
same on the discovery of his mistake, is ndt thereafter dis­
qualified to enter lands in said Territory.”
See also Towns.te of Kingfiisher vs. Wood et. al., 11 B.
D. 330.
The law may be violated by employing an agent. 27 B.
D., 696.
Making a race from railroad right of way, violation of
the law. 27 B. D., 438
Presence in the Territory at,the time of opening disqual­
ifies one (to make entry or settlement on that day, but, if
by such presence no advantage is secured, such a person is
not necessarily disquaLfied thereafter. 27 B. D., 277.
May violate the law by passing through the Territory on
railroad train. 27 B. D., 474.
See 28 B. D. 169, 303; 16 B. D. 375, 253, 132; 17 B. D. 402,
526, 175.

In 'the case of Taft vs. iChapin, 14 B. D., 593, it was held:
“One who was lawfully in the Territory of Oklahoma at
the passage of the act of March 2, 1889, and so remains unt 1
the lands are opened to settlement and entry and does not
take advantage of his presence as againsit others to enter
upon and occupy lands, is not, by such presence in said Ter­
ritory, disqualified to enter lands therein.”
In Winans vs. Beidler, 15 B. D. 256, it was held:
“One
who is lawfully in the Territory of Oklahoma pr<ior to tne
date when the lands therein were opened to se*ttlement and
entry, and takes advantage of such presence to secure lands

The general rule is that one homestead entry or filing
of declaratory statement, exhausts the right under
the
homestead law.^ There are numerous exceptions to this
rule, however. Congress has passed a number of laws, per­
mitting second homestead entries. The Department of the
Interior has also, by numerous decisions, permitted persons
to make second homestead entry, where the original entry
was not made under such circumstances, that exhausted the

Second Entries.

r
5«
homestead ri^ht. As this volume is prepared especially for
persons who desire to make entry of the lands in the
Kiowa, Comanche, and Apache reservation, to avoid con­
fusion, we will ag-ain refer to second entry, as permitted
upon these lands.
Kiowa and Comanche Country —As heretofore pointed
out, the Act of Congress, opening the Kiowa, Comanche,
and Apache lands to settlement, contains
the following
clause, to-wit: “That any person, who having aJttempted
to but for any cause failed to secure a t’tle in fee to a
homestead under existing law, or who made entry under
what is known as the commuted provision of the homestead
law, shall be qualified to make homestead entry upon said
lands.”

It will be observed that the above provision coniams
two clauses. 'The first provid'es, “That any person, who
having attempted to but for any cause failed to secure a
title in fee to a homestead under exist:ng laws ♦ * * shall
be qualified to make a homestead entry upon said land.”
The above provision is very broad and sweeping, and
virtually restores the homestead right to any person, who
has failed to secure title to the land covered by his former
homestead entry, either through relinquishment or can­
cellation.
(Section 13 of the Act of March 2, 1889, referring to the
lands opened to settlement April 22, 1889, contains a provision
word for word as the one above quoted. This provision was
construed by the (Secretary of the Interior in the case of
James W. Lowry, 26 L. D. 448. Lowry had commuted his
former homestead subsequent to the passage of the Act of
March 2, 1889. The question arose as to whether Lowry,
having commuted his entry subsequent to the passage of the
above act, was qualified to make a second homestead entry,
under the above provisions.
Secretary Bliss held that
Lowry was qualified. In
the decision of the case,
(supra) the iS'ecretary says: “If then any person has, at the
date of his application under this act, attempted to, but for
any cause failed to, secure a title in fee to a homestead

under existing law, or shall have made entry under the
commuted provision of the homesitead law, he is by virtue
of th s act qualified to make entry.”
The same question arose in the case of Henderson et
al. vs. iSmith, 28 L. D. 303. The Departmenft in ih s case had
under consideration the above provision which word for word
was a part of the Act of March 3, 1893, opening to settlement
the Kickapoo lands. One of the parties to the case had relin­
quished a homestead entry upon a tract of land n Missou i
subsequent to March 3, 1893, the date of the approval of the
Act, providing for the opening to sett’oment the K ckapoo
lands. In that case tSecretary Hitchcock, under date of
April 19, 1899, held that if a pafity had relinquished h’s entry
prior (to the date of his application to make second entry,
that, under the above provision, he was a qualified en ryman.
Under the above rulings of the Department any person
who has had his entry cancelled or relinquished it, or
who has made entry under what is known as the commuted
provisions of the homestead law, prior to the time that he
initiated his right to lands in the Kiowa and (Comanche
country, either by settlement or entry, will be entitled to
make a second entry in these lands. In other words per­
sons who fail to secure title to their lands, or commute their
enitries between now and the t me the Kiowa, Comanche and
Apache country is opened to settlement, or the time their
rights to the land are initiaited, will have the same privilege
to make entry of these lands as those who have commuted
or failed to secure title, prior to June 6, 1900, the date of the
approval of the Kiowa and Comanche bill. At least, the
above decisions seem to so hold.
Caution to Those Who Have Commuted,—We again
call atitenion to the question as to whether parties who have
commuted entries in Oklahoma are entitled to make entry in
the Kiowa and Comanche country, under the second clause
of the above provisions, which provides, "That any person
who * * * made entry under what is known as the com­
muted provision of the homestead law shall be qualified to

5S
make a homestead entry upon said lands.” Under the construdtion griven to a similar provision in the act wh'ch pro­
vided for the opening- of the Sac and Pox lands, the Secre­
tary of Interior held, that parties who had commuted in
Old Oklahoma, under Section 21, of the Act of May 2, 1890,
were not entitled to make a second entry upon the land in
the Sac an Pox reservation. The Department held that the
Act of May 2, 1890, providing for the commutation of home­
stead entries in what is known as Old Oklahoma was a
special act, and that this special act was not “The commuted
provision of the homestead law.” As all commutations In
Oklahoma have been made under special acts and not under
Section 2301, of the Revised Statutes, the rulings of the
Department would seem to apply to all commutations made
in Oklahoma. Unless the above decision is overruled or
modified, persons who have “commuted” in Oklahoma can­
not make a second entry in the Kiowa, Comanche and
Apache lands. See Clark’s case, 17 L. D. 46.
ACT JUNE 5, 1900.
General Act,—The Act of June 5, 1900, provides:
Sec. 2. That any person who has heretofore made entry
under the homestead laws and commuted same under pro­
visions of section twenty-three hundred and one of the Re
vised Statutes of the United States and the amendments
thereto shall be entitled to the benefits of the homestead
laws, as though such former entry had not been made,
except that commutation under the provisions of section
tw’enty-three hundred and one of the Revised Statutes shall
not be allowed of an entry made under this section of (this
Act.
!
'(
■ i ' ij'*
Sec. 3. That any person who, prior to the passage of
this Act, has made entry under the homestead laws, but
from any cause has lost or forfeited the /same shall be en­
titled to the benefits
of the homestead laws as
though such former entry had not been made: Provided,
That persons who purchased land under and in accordance
with the terms of an Act entitled, “An Act to Provide
for the Sale of Lands Patented to Certain Members of
the Plathead ’Band of Indians in the Territory of Montana,
and for Other Purposes,” approved March second, eighteen
hundred and ninlety-nine, shall not be held to have im­
paired or exhausted their homestead rights by or on ac­
count of any such purchase. (Approved June 5, 1900.)

A

59
The provisions of the above act apply generally to
all lands subject to homestead entry in the United States,
and, of course, apply to lands in Oklahoma, unless there
is some special provision or Act of Congress applying to
Oklahoma lands to the contrary.
Other Lands,—^The Acts of Congress providing for the
opening of the various reservations to settlement, are here­
inafter quoted. If one desires to make second entry upon
any of said lands, refer to the special act for information.
These acts may be found by referring to index.
One who has abandoned all claims under former en ry
is not disqualified as a settler claiming the right of second
entry, under Section 13, Act of March 2, 1899, (25 Statutes,
980), by the fact that the first entry had not been cancelled
of record at the date of his settlement. 29 L. D. 108.
Section 10, Act of March 3, 1893, makes the provisions of
Section 13, Act of March 2, 1899, applicable to lands in the
Cherokee Outlet, not only as to the manner of opening said
lands, but also as to the qualifications of the claimants
therefor. 29 L. D. 108, 246.
The right to make second homestead entry, under
the Act of March 2, 1899 (25 Statutes, 980), by persons “who
having attempted to, but for any cause failed to secure title
in fee to a homesitead under existing law,” is applicable to
entries in the Cherokee Outlet, and is determined by the
status of the applicant at the date of his applicaition. 29 L.
D. 372.

Act March 2, 1889,—’We quote below the several sections
of general Act of March 2, 1889, relative to second entries:
Section 2. That any person who has not heretofore per­
fected title to a tract of land of which he has made entry
under the homestead law, may make a homestead entry of
not exceeding one-quarter section of public land subject to
such entry, such previous filing or entry to the contrary not­
withstanding; but this right shall not apply to persons who

GO
perfect title to lands under the pre-emption or homestead
laws already initiated; Provided, that all pre-empfon set­
tlers upon the public lands whose claims have been initiated
prior to the passage of this act may change such entries to
homestead entries and proceed to perfect their titles to
their respective clams under the homestead law notwith­
standing they may have heretoforie had the benefit of such
law, but such settlers who perfect title to such claims under
the homestead law shall not thereafter be entitled to enter
other lands under the pre-emption or homestead laws of 'Ine
United States.
George W. Blackwell, 11 B. D. 384; James W. Barry, 10
B. D. 634; Robert Brandon, 9 B. D. 145; A. P Toombs, 9 B.
D. 312; John P. Newcomb, 9 B. D. 556; Bärget’s case, 9 B.
D. 412; Fitzpatrick, 12 B. D. 268; Bewis Jones, 12 B. D. 361;
Hartzell’s case, 12 B. D. 558.
Section 5. That any homestead settler who has here­
tofore entered less than one quarter section of land may
enter other and additional land lying contiguous to the
original entry, which shall not, with the land first entered
and occupied, exceed in the aggregate one hundred and sixty
acres, without proof of residence upon and cultivation of
the additional entry; and if final proof of settlement and
cultivation has been made for the orginal entry when the
additional entry is made, then the patent shall issue without
further proof: Provided, That this section shall not apply
to or for the benefit of any person who at the datte of mak­
ing application for entry hereunder does not own and occu­
pied the lands covered by the original entry: And provided.
That if the original entry should fad for any reason
prior to patent, or should appear to be dlegal or fraudulent,
the additional enitry shall not be permitted, or, if having
beten init atted, shall be cancelled.
John Goodman, 8 B. D. 428; John Schnabelin, 8 B. D.
474; John R. Cannon, 10 B. D. 78; T. B. Hartzell, 10 B. D. 681.
^Section 6. That every person entitled, under the pro­
visions of the homesttead laws, to enter a homestead, who
has heretofore complied with or who shall hereafter C( m-

T

G1
ply with the conditions of said laws, and who shall have
made his final proof therteunder for a quantity of land
less than one hundred and sixty acres and received the re­
ceiver’s final receipt therefor, shall be entitled under said
laws to enter as a personal right, and not assignable, by
legal subdivisions of the public lands of the Un ted Stages
subject to homestead entry, so much additional land as add­
ed to the quantity previously so entered by him shall not
exceed one hundred and sixty acres: Provided, That in no
case shall patent issue for the land covtered by such addi­
tional entry until the person making such additional entry
shall have actually and in conformity with the homestead
laws resided upon and cultivated the lands so additionady
entered and otherwise fully complied with such laws:
Provided, also. That this secition shall not be construed as
affect ng any rights as to location of soldier’s certificates
heretofore issued under section two thousand three hundred
and six of the Revised Statutes.
P D. Gilbert, 8 B. D. 500; J. T. Stewart, 9 B. D. 543;
Jacob Farley, 10 B. D. 601; E. M. Hutchinson, 11 B. D. 364.

Act Dec» 29, 1894»—^The right to make a second entry
under the Act of December 29, 1894, extends to such persons
as have theretoforte forfeited their entries for such reasons
as would have entitled them to a leave of absence under
section 3, Act of March 2, 1889.
The party applying to make second entry will be re­
quired to file, in the district land office having jurisdiction
over the land he des’res to enter, an application for a spe­
cific tract of land, and to submit testimony to consist of
his own affidavit, corroborated by the afiidavits of disin­
terested witnesses, executed before the register or receiver or
some officer in the land district using a seal and authorized
to administer oaths, setting forth in detail the facts on
which he relies to support his appl cation, and which must
be sufficient to satisfy the register and receiver, who arc
enjoined to exercise their best and most careful judgment
in the matter, that his former entry was in fact forfeited by
reason of his inability, caused by a total or partial de,^truc-

GS

G3

t’ion or failure of crops, sickness, or other unavoidable cas­
ualty, to secure a support for h mself or those dependent
upon him, upon the land settled upon.
The facts to be shown embrace the following, viz.:
1. The character and date of the entry, date of esatbl'shing residenc'e upon the land, and what improvements were
made thereon by the applicant.
2. iHow much land was cultivated by the applicant,
and for what period of time.
3. In case of failure or injury to crop, wha't crops
failed or were injured or destroyed, to what extent, and
the cause thereof.
4. In case of sickness, what disease or injury, and to
what extent the claimant was thereby prevented from con­
tinuing upon the land, and if practicable a certificate from
a reliable physician should be furnished.
5. In case of “bther unavoidable casualty,” the char­
acter, cause, and extent of such casualty, and its effect
upon the land or the claimant.
6. In each case full particulars upon which intelligent
action may be based by the register and receiver.
The foregoing is intended to indicate what fadts should
be set forth in the required affidavits, leaving with the
register and receiver of the several district offices the duty
of making application of the law to the particular cases
presented.
If the showing made by any party in support of his
application under said act is satisfactory to the district land
officers, they will allow him to make entry as in other cases.
Parties claiming under any special act will be required
to show themselves entitled to the benefit thereof in accord­
ance with such instruct;ons as may be issued thereunder.

entry ¡independent of all special staJtutes. The following
are some of the leading cases of this kind:
An entry must be cancelled where it is duly shown, after
the expiration of the statutory life of the entry, that the
entryman died prior to the completion of his entry, and
that there are no heirs of the entryman who are entitled to
perfect sa^d claim.” 25 L. D. 453
“A second may be allowed where the land embraced in
the first does not afford a supply of waiter fit for domestic
use, and the entryman does not appear to have been want­
ing in diligence or good faith. 21 L. D. 380.
“The right to make a second may be recognized wh re the
first was cancelled on account of the entryman’s failure to
establish residence and such failure was due to circum­
stances beyond his control.” 22 L. D. 179.
“The right to make a second w ll not be accorded to
one who relinquishes his prior entry on account of a money
consideration or its equivalent.” 23 D. D. 87.
“Permission to make a second homestead may be ac­
corded where there is no adverse claim, and the first is
relinquished on account of the worthless character of the
land, and the applicant, under the circumstances, is not
chargeable with negl genoe in the premises.” 28 U. D. 259.
“The right to make a second may be accorded to one
who in good faith relinquishes the fir^t on account of an
adverse claim asserted to the land included therein.”
24
L. D. 531.
“The r>ight to make a s'econd may be recognized where
the first through mistake Avas not made for the land in­
tended, and was accordingly relinquished.” 24 L. D. 16.
“A second will not be allowed on account of the worthless
character of the land covered by the first, if such entry
was made without examinât on of the land.” 26 L. D. 23.
“The right to make a second, accorded Avhen the first,
through no fault of the entryman, was made for land cov­
ered by a prior bona fide pre-emption claim.” 10 L. D. 9;
8 L. D. 98.
“The right to make a second recognized when the first,
made in good falith, was abandoned on account of conflict
with the bona flde pre-emption claim of another.” 8 L.
D. 100.
“(Second allowed, where the first, for equitable reasons,
was relinquished on account of conflict wfith the prior settle­
ment right of a pre-emptor Avho was in default in the
matter of submitting proof.” 8 L. D. 131.
“Second allowed, where the first was made in good faith
for land afterwards held not subject thereto, imd accord ngly
cancelled on relinquishrnent.” 8 D. D. 1S7.

DEPARTMENTAL DECISION'S.
Second Entries Under
Depar'tmental Decisions.—It
is not every homestead entry that exhausits the homestead
right. On general principles the Department of Interior
has from time to time permitted persons to make second

G4

G5

“^Second may be made where the first was relinquished
under the belief that it could not be maintained wlthowt
dang-er (to the entryman’s life.” 8 L. D. 587.
“Second allowed where water fit for domestic use could
not be obtained on the land covered by the first.” 9 L.
D. 207, 333.
“Where the high't to make a second rests on the noninhabitable character of the land covered by the firs’t, the
facts as to the nature and conditions of both tracts should
be clearly set forth.” 9 L. D. 207.

witnesses by whom the necessary facts as to settlement,
residence, cultivation, etc., are to be established. He must
also state the day when, the place where, and the officer
before whom the proof is to be taken.
5.
Deposit Money,—The filing of notice of intention to
make proof must be accompanied by a deposit of sufficient
money to pay the cost of publishing the' notice to be given
by the register, the deposit to be made with the receiver,
who wiill notify the regiser thereof, that he may cause th
notice to be published, but settlers are not to be deprived
of the right to make theiir own contracts for publishing
notices of intention to make final proof and to make pay­
ment therefor directly to the publishers of the paper, after
the notice has been prepared by the register and the paper
designated by him, on presenting to the register a statement
from the publisher or his agent that the money for the
payment of said notice has been paid to or deposited with
said publisher.

Final Proofs.
(Prom General Band Office Circular, issued Ju’y 11, 1899 )
1. Address.—Applicants to make ehtr 'es and clairnan s
and wiitnesses making final proof must in all cases state
their place of actual residence, their business or occupation,
and their post-office address. It is not suff cient to name
the county and State or territory where a party lives, but
the town or city must be named, and, if residence is in a
city, the street and number must be given. The register and
receiver will note the postoffice address in their tract book.
2. Where the residence of a party or witness is on
surveyed land the subdivision, sect on, township and range
must be stated in every case.
3. Notice.—Notice by registered letter, directed to c'aimant’s last-known postoffice address, is the prescribed means
of giving legal notice to him of off; cial action taken in
respect to his entry, either before or after proof (clrcu ar
approved October 28, 1886, 5 L. D. 204.) Claimants and
entrymen should therefore give prompt notiice to the register
and receiver of any change of res)idence or postoffice ad­
dress. (See Rules of Practice 11 14 and 17, as amended
May 26, 1898.)
4.
Written Application.—Any claimant desiring to m^^ke
final proof of having complied with the provisions of law
In respect to residence, cultivation, or improvement must
first file with the register of the proper land office a written
not ce of his intention to do so, which notice must be
transmitted by the regisiter and receiver to this office, with
the proof. The notice must describe the land Claimed, and
the claimant must give the names and residences of the

!

6.
Length
of Publication.—Upon the
filing of the
notice by the applicant the register will publish a notice tha t
such application has been made, once each week for a period
of thirty days, in a newspaper which he shall des’gnate by
an order written on said application, as published nearest
the land described in the application, and he shall also
post said notice in some conspicuous place in his office
for the same period. If published in a weekly paper a com­
pliance with the law will require the notice to be published
weekly five successive weeks, the day fixed for the sub­
mission of the final proof to be at least thirty days after
the first publication.

7. Contents
of Notice.—The notice to be given by the
register must state that application to make final proof
has been filed; the name of the applicant; th© kind of
entry, whether homestead, pre-emption, or other; a de­
scription of the land and the names and residences of the
witnesses as stated in the application; also the day when,
the place where, and the officer before whom the proof is
to be taken.

F"
66

67

8.
Combíne Notices-—To save expense, the register may
embrace
two
or
more
cases
in
one
publication,
when it can be done consistently with the legal requirem?n s
of publication in a newspaper published nearest the land.
9Publisher’s
Duty,—'Publishers
should cause each
proof notice to be carefully compared by copy, and should
send at least one copy of 'the paper containing the notice
to the party in interest. This course will avoid errors or
secure their correction in proper time.
10. Proof of
Publication,—Proof of publication will be
the aff. davit of the publisher or foreman of the newspapei
employed that the notice (a copy of which notlice must be
annexed to the affidavit) was published in said news rape?
once a week (if a weekly paper), for five successive w eks,
or for thirty days in a daily paper, as the case may be.
'Such affidavit must show that the notice was published n
the regular and entire issue of every number of the paper
during the period and time of publication, and that the n^t'ce
was published in the newspaper proper and not in a supp ement. Affidavits of publication noit in conformity with these
reçiuirements will be rejected by the register and receiver.
11. Posting,—Proof of posting notice in the d sifiict lard
office w-11 be the certificate of the register that the not.ce
of the application (a copy of which should be annexed to
the certificate) was posted by him in a conspicuous p ace in
his office for a period of thirty days.
12. Publication and Posting,—The proor of the* pub icat on and posting of the notice must be filed and pr.se. ved
by the register, to be forwarded to 'tthe General Land Office
with the final papers when issued.
13. General Provisions,—Proof should in every case be
made at the time and place advertised, and before the offi­
cer named in the notice. On the day advertís ¿d the officer
named in the notice shall call the case for hearing, and
should the cla mant fail to appear the off cer should con­
tinue the case until the next day, and on that day or on
any succeeding day, should the claimant fall to appear, pro ceed in like manner until the expiraition of ten days from

the day advertised, after which thé proof, if presented,
should not be received. Proper notice should be given of the
continuances, made in the most effective way the circum­
stances admit of, to any parties interested. Parties pro­
posing to cross-examine claimant’s witnesses or submit r'ebutting test mony will be allvywed to do so on the date ad­
vertised, in case of the appearance of the claimant and his
proof being made on that day. In case of his non-appear­
ance protests or affidavits of contest may be filed, and if
a sufficient ground of objection is set forth therein the pro­
testant, adverse claimant, or contestant may appear at any
subsequent day to which the case may be adjourned, with
the same rights of cross-examination and of submitting re­
butting testimony as if the appearance had been made on
the day advertised, should he so elect, and if he should not
do so, the register and receiver of the proper district land
office will take measures to secure the proteslant, contes^tant,
or adverse cla mant, an opportunity to be heai’Ù, on the
grounds of objection presented after due notice to all parties
according to rules of practice before allowing final entry
to be made, and the appearance of the protestant or adverse
claimant, or filing of protest or contest affidavit, on the day
advertised, or on any day to which the case may be con­
tinued as above, will suffice to protect their r ght» in the
premises as fully as though both parties had appeared and
the proof been taken on the day advertised. This proceed­
ings had should be duly docketed and be made to appear
by proper entries on the proof papers to which any protest
or contest affidavit filed should be attached, .by the officer
named in the notice. The witnesses to the proofs must be
two of the persons named as witnesses In the not ce s. O her
persons cannolt be substituted as witnesses without re-advefitisement
Section 7, act of March 2, 1889 legalizes proof taken
within ten days following the date advert sed, where un­
avoidable delay prevents compliance with the noticie.(10 Ij .
D. 301 397.)
There is no law or rule of the Department that warrants
the local officers in extending thé time for taking final proof

6S

beyond ten days from the time set therefor fn the adver­
tisement. (20 L. D. 343.)
14. Duties of Officers,—^When proof is made before the
proper United States commissioner, judge, or clerk of court
(as the case may be), the affidavits and testimony must
be duly authenticated and transmitted to the register and
receiver, together with the “fee and charges’’ allowed by
law to them. There may be transmitted therewith the fees
and commissions. If any, legally payable on the entry at the
time of making final proof, and in addition thereto in home­
stead and timber-culture entries under acts of March 3, 1877,
(19 IStaJt. L. 403; Appendix No. 5, p. 165), and March 3, 1891
(26 Stat. L. 1095; Appendix No. 44, p. 221), the legal fee for
“examining and approving’’ the testimony, which 's 15 cents,
or in the Pacific states and territories, 22 1-2 cents, for each
100 written words. Printed words are not to be counted.
15. When the land is within an unorganized county, the
fact that the county in which the land lies is unorganized
and that the county in which the proof is made is adjacent
thereto must be cer*tified by the attesting officer.
16. Attesting.—Atitesting officers must sign in their
true official capacity. If proof is taken by a judge in his
capacity as clerk of hiis own court he should sign as “exofficio clerk.’’
17. Examination of Witnesses,—Registers and receivers,
judges and clerks of cour'ts, and other officers taking proofs
are enjoined to use the utmost strictness in the examination
of parties and wiitnessies, and to obtain full, specific, and
unevasive answers to all the questions propounded, and all
necessary oral cross-examinations will be made by attesting
officers to further attest the good faith of claimants and the
reliability of the testimony of claimants and witnesses.
Officers will certify to their oral cross-examinations.
18 Registers and receivers will carefully examine all
proofs transmitted to them by other officers, and will not
issue certificates nor place entries on record, nor transmit
the proofs to this office until the same have been thus ex­

69

amined.
Defective, insufficient, or unsatisfactory proofs
w^ill be rejected and new proof required.
19. Proofs taken by other officers than registers and re­
ceivers must be immediately transmitted to the register
and receiver and the money paid to the latter. When any
interval of time, other than that required for immediate
and expeditious transmittal, elapses between the date of
proof and date of its receipt, with the money, at the district
land office, a new affidavit, duly corroborated, showing
non-alienation and continued residence, covering date of re­
ceipt of proof and payment by the register and receiver,
will be required before certificaite is issued or the entry
placed of record.
Proof without payment must in no case be accepted or
received by registers and receivers. If, however, this shoulu
occur by inadvertence ,in any case, additional evidence as
above should be at once required of the claimant before
allowing entry.
All discrepancies between date of proof and date of reg­
ister’s certificate and receiver’s receipt must be accounted
for by certificate from the register and receiver attached to
each case.
20. As settlers on unsurveyed lands are allowed three
months after the filing of the 'townshp plat of survey wrihin
which to put their claims on record, no final proof on home­
stead or pre-emption entries should be permitted until after
the expiration of said three months.
DECISIONS OF DEPARTMENT.

Day to Take Final Proof.— Final proof must be taken on
the day advertised, except that by section 7, act March 2,
1889, (see 8 L. D. 317, and 381) testimony in final proof may
be taken “within ten days following the day advertised as
upon which final proof shall be made in cases where acci­
dent or unavoidable delays have prevented the applicant or
witnesses from making such proof on the date specified.”
See index.

The general instructions to be followed in taking final
proofs will be found in 5 L. D. 426, 8 L. D, 3; 9 L. D. 123,

70

Not During Contest—Final proof should not be submitted
during pendency of contest.
Laffoon vs. Artis, 9 L. D. 279; Scott v. King, 9 L. D. 299; EastJake Land Co. v. Brown, 9 L. 1). 322; Alice SuSnmeifield, 10 L. D.
372; Frank Aldrich, 10 L. D. 587; Hasket v. Cannon, ii L. D. 449;
Willis V. Buchanan, ii L. D. 256 and 452.
May After Contest Tried.—The above has been modified by
rule allowing enWyman to make final proof if contest has
been tried.

Special notice should be given to adverse claimants, of in­
tention to submit final proof. Tuttle vs. Parkin, 9 L. D495.
Indefinite Notice.—Final proof submitted on indefinite
notice may be accepted, in the absence of protest, after republication. Kemp’s case, 9 L. D. 439.
Names and Addresses of Witnesses.—In giving notice of in­
tention to make final proof, the settler must publish the
names and postoffice addresses of his witnesses. Four dis­
interested witnesses must be named in the notice, two of
whom must appear and testify in behalf of claimant. The
witnesses should be near neighbors. Nellie E. Burch, 8 L.
D. 651; Whitcomb vs. Boos, 5 L. D. 448. In case other wit­
nesses are substituted, rc-publication will have to be made,
and in case of no protest, proof may be accepted. Lutz’s
case, 11 L. D. 266; Herbert Higgins, 9 L. D. 646; Wenzel
Paows, 8 L D. 473.
Description of Land.—The land must be oorrectly described.
If not, re-publication must be made. Sarah J. Tate, 10 L.
D. 469; Ulrich'Fuchser, 7 L. D. 467; Clark’s case, 7 L. D. 485;
Adam’s case, 6 L. D. 705.
Supplemental proof may be submitted, when good faith
appears, and there is no adverse claim or protest. Mease’s
case, 10 L. D. 183; Clara L. Meguity, 6 L. D. 809.
Names of witnesses should be properly given and must be
correctly printed. Great care. should be exercised in this.
In case of mistake in names, re-publication will be required
Amos E. Snaith, 8 L. D. 204.

If by mistake Sunday is fixed for final proof, the day fol­
lowing will answer. George Linen, 8 L. D. 233.
If proof is submitted within the shortest possible time
“special scrutiny” is invited. Burch’s case, 8 L. D. 651;
Francis M. Cull, .5 L. D. 348. But see E. B. Gate’s case, 5 L.
D. 207. Also Chrisingbr case, 4 L. D. 347.
Publies.15 Notice.—The notice must be published in a
paper published nearest the land, and if not new publica­
tion will be required. Ensign’s case, 7 L. D. 314; Wellman’s
case, 5 L.D. 503. The usual route of travel governs. 1 L. D.
108.,
Final proof proceedings may be continued from day to
lay until completed. Zimmerman’s case. 7 L. D. 418.
In commutation proofs, if the evidence of residence and
cultivation is not satisfactory, new proof may be made at
any time within lifetime of entry, where there is no adverse
claimant to the land. Vandevoort’s case, 7 L. D. 86.
Every fact necessary to entitle claimant to make fina^
proof should appear affirmatively from the proof. U. S.
vs. Skahen, 6 L. D. 120. The proof should be clear and ex­
plicit. Park’s case, 6 L. D. 549.
The good faith of claimant must appear from the proof,
but good faith is not determined by any fixed rule. Garlick’s case, 6 L. D. 310. The facts and circumstances around
each case are considered. Healey’s case, 4 L. D. 80, and E.
J. DeLendrecie. 3 L. D. 110.
Local office on account of press of business may continue
final proof, but should be to a day certain. Lalconer vs.
Hunt et. al., 6 L. D. 512; John MeCorty, 6 L. D. 806.
Proof must be taken at the time and place designated in
the published notice. Lent’s case, 6 L. D. 110; Sherlock’s
case, 6 L D. 155; Gray v. Ney, 6 L. D. 232.
The publication of a notice to make final proof is an invi­
tation to the world to appear and object to the allowance
of the proof. U. S., v. Fernandez, 6 L. D. 379; Brady vs. S.
P. R. R., 5 L. D. 407.

72

Üse of witness not named in notice will not invalidate the
proof. Cull’s case, 5 L. D. 348.
Notice must he posted in land office. S. P. R. R. Co. vs.
Brady, 5 L. D. 399.
Protest.—When protest is filed, local office should order a
hearing. Fenton vs. Caldwell, 1 L. D. 448. Protestant may
appear, cross-examine final-proof claimant’s witness and in­
troduce counter proof. Houge vs. Treman, 2 L. D. 59G.

Rules of Practice.
(Approved June 27, 1899.)

I.

(Proceedings before Registers and Receivers.) 7,—Initiation of Contests,
Ru l e I.—Contests may he initiated by adverse party or
other person against a party to any entry, filing or other
claim under laws of congress relating to the public lands,
for any sufficient cause affecting the legality or validity of
the claim.
Above rule permits contest against alleged abandoned or
forfeited homestead or timber culture entries by any person,
but in all other cases only by party in interest. 1 L. D. 219,
9 L. D. 209.
Indian Trust Land.—Entries on may be contested. 9 L. D.
329 Local officers have jurisdiction to order hearing at any
time before final certificate issues. 13 L. D. 126,
Contest may be initiated against scrip or certificate loca­
tion. 14 L. D. 588.
Application to Enter not contestable under above rule. (15
L. D. 150.) An application to enter “is simply the expres­
sion of a desire to establish a claim.” 15 L. D. 150.
Preference Right to enter awarded to one who initiates con­
test under above rule and furnishes evidence. 10 L. D. 399,
13 L. D. 115, see 7 L. D. 9; 1 L. D. 314.
Rules 1, 2 and 3 must be complied with 'Lo initiate vaMd
contesit. 22 L. D. 208.

Affidavit must be corroborated. 16 L. D. 391.
Rule 2.—In every case of application for a hearing
an affidavit must be filed by the contestant with the reg­
ister and receiver, fully setting forth the facts which con­
stitute the grounds of contest. When the contest is against
the heirs of a deceased entryman, the affidavit shall state
the names of all the heirs. If the heirs are non-resident
or unknown, the affidavit shall set forth the fact and b?
corroborated with respect thereto by the affidavit of one
or more persons.

Affidavit must be filed (11 L. D. 326), but this might be
waived by contestée.
Rule directory. 13 L. D. 126.
Charges must be specific, and amendiùent cannot be made
on hearing ordered by commissioner, after final certificate
has issued when amendment set up new grounds contest.
14 L. D. 147.
Object of rule that parties against whom charges are
made may know what they are and be prepared to meet
them. 15 L. D. 306, see 2 L. D. 437.
Affidavit need not be made before register and receiver.
17 L. D. 540.
__
____

Ru l e 3. Where an entry 'has been allowed and remains
9f record the affidavit of contestant must be accompanied
by the affidavits of one or more witnesses in support of the
allegations made.
In the absence of affidavit required to initiate a contest
one cannot be assumed to the detriment of the party who
has complied with the law. 2 L. D. 57.
Affidavits must be filed fully setting forth the grounds of
contest. Affidavits may be made out before any official au­
thorized to administer oaths in the district where the land
is situated. 2 L. D. 213.
An affidavit may be rejected if not properly corroborated.
Defective affidavits cannot be amended in the presence of
an adverse right. 8 L. D. 446; 11 L. D. 326.
A letter from the receiver of a land office attached to the
affidavit of contest in support of the charge contained there­
in may be accepted as due corroboration where the charge

74

against the entry involves a matter of record within the of­
ficial knowledge of said officer.
Affidavit of contest may be based on the information and
belief of the contestant. 15 L. D. 114.
An objection to the sufficiency of a contest affidavit in­
cludes within it the sufficiency of the corroboration. 15 L.
D. 300.
A corroborating affidavit may be on information and be­
lief. 14 L. D. 576; 15 L. fj. 300.
Prot'esit by state against mining claim must be corrobor­
ated. 22 B. D. 629. Object of contest affidavit, 17 L. D. 96.
Corroborât’on of protest is not essential, where D jartment is bound to take judicial knowledge of
the
matters charged. 27 B. D. 53.

2. — Hearing in Contested Cases.
Ru l e 4 —Registersand receivers may order hearings in all
cases wherein entry has not been perfected and no certifi­
cate has been issued as a basis for patent.
Jurisdiction attaches generally when contest affidavit is
filed and notice has been issued to settler. Generally, any
question involving the sufficiency of the information on
which the local office has elected to proceed disappears from
the moment that notice was issued to the settler. 2 B.
D. 57.
A party offering a corroborating affidavit should be al­
lowed time to amend subject to any intervening adverse
claim. 2 B. D. 210.
It is by a notice to the settler that the local office acquires
jurisdiction, and not by force of any affidavits on which ci­
tation is issued. 2 B. D. 312.
Ru l e 5.—In case of an entry or location on which final
certificate has been issued the hearing will be ordered only
by direction of the commissioner of the general land office.
The register and receiver may order hearings in all cases
where final certificate is not issued. 2 B. D. 302. Register
and receiver have no jurisdiction to allow an amendment
to contest affidavit upon entry where final certificate has

issued and a hearing has been ordered by Commissioner.
14 B. D. 447.
Contestant entitled to notice.

17 B. D. 133.

Ru l e 6.—Applications for hearings under Rule 5 must be
transmitted by the register and receiver, with special report
and recommendation, to the commissioner for his determin­
ation and instructions.

3.—Notice of Contest.
Ru l e 7.—At least thirty days’ notice shall be given of all
hearings before the register and receiver unless by written
consent an earlier day shall be agreed upon.
Thirty days’ notice for hearing before the register and
receiver. 4 B. D. 540. But this rule does not apply to
hearings ordered elsewhere, and if a party wants more time
he should appear and ask for a continuance.
In computing time, exclude the day on which notice is
served or day on which trial is to take place. 21 B. D. 164;
22 B. D. 640; 17 B. D. 139; 18 B. D. 478.

Rule 8.—The notice of contest and hearing must conform
to the following requirements:
1. It must be written or printed.
2. It must be signed by the register and receiver or by
one of them.
3. It must state ^the time and place of hearing.
4. It must describe the land involved.
5. It must state the register and receiver’s number of
the entry and the land office where, and the date whei\
made, and the name of the parity mak ng the same.
6. It must give 'the name of the contestant, and briefly
s>tate the grounds and purpose of the contest.
7. It may contain any other information pefitinent to the
Contes'!

The mere omission of the register to aff x to his signature
on a noitice of contest his off C al dss'giiation does not in­
validate the process. 11 B. D. 269. Need not be signed by
both register and receiver. 11 B. D. 418.
After appearance to the merits of an aciton it is too late
to objedt to the sufficiency of the ndtice. 11 B. D. 418. See

7G
12 B. D. 462. Notice must be issued by the local land officers.
This authority cannot be delegaited. It must state time and
place of hearing and describe the land. If defective in
theseparticulars 'it confers no jurisdiction. 13 B. D. 429.
Evidence must be confined to the grounds set foith in the
notice. 15 B. D. 305.
Copy of charge need not be made in notice. 23 B. D. 142.
Rule 9.
Service of Notice.—Personal service shall
be made in all cases when possible if the parity to be served
is resident in the state or territory in which the land is
situated, and shall consist in the delivery of a copy of the
notice to each person to be served.
When the contest is
against the heirs of a deceased entryman, the not ice shad
be served on each heir. If the heirs of the entryman are
non-resident or unknown, notice may be served upon them
by publication as hereinafter provided. If the person to
be personally served is an infant under fourteen years of
age or a person who has been legally adjudged of unsound
mind, service of notice shall be made by delivering a copy
of the notice to the statutory guardian or committee of
such infant or person of unsound mind, if there be one;
if there be none, then by delivering a copy of the notice
to the person having the infant or person of unsound mind
in charge.
Where defendant admits that he is a non-resident he can­
not be heard to say that contestant has not used due d li­
cence to seeur© personal service. 5 L. D. 456.

Service may be mad© by party in interest. 6 B. D. 552.
Irregular service confers no jurisdiction. 9 B. D. 75.
Mod© of proof of service is immaterial where service is ad­
mitted, or not denied. 10 L. D. 274, 6 L. D. 669.
Appearance and procuring* a continuance is a waiver of
defect in service. 10 L. D. 274.
An affidavit stating that the defendant is a non-resident
of the State or Territory where the land is situated is held
sufficient to base an order for service by publication. 11 L.
D. 261.
If the copy of notice served on defendant does not shovz
true date of hearing, the notice is fatally defective. 12 B.
D. 44.
Oriirinal notice instead of copy may be served. 5 B. I). 590

Cost of taking testimony is faxed in Oklahoma fifteen
cents per one hundred words. 12 B. D. 478.
Notice sent by registered letter to a resident is not per­
sonal service. 11 B. D. 604.
This case seems to over-rule 10 B. D 388, holding that
“service by registered letter is personal service.” See also
to the same effect 12 B. D. 620.
After motion to dismiss on the account of defect in service
nothing is waived by proceeding to trial. 12 L. D. 620.
The reading of the notice to the wife of the defendant
and delivering her a copy at the house, the usual place of
defendant’s residence, is not personal service.
Notice by registered letter not personal service. 18 B.
D. 586; 24 B. D. 14.
Publication proper when defendant
non-resfident. 21 B. D. 277.
No jurisdiction unless rule compLed with. 16 B. D.
120. Requirements of rule must be affirmatively shown to
confer jurisdiction. 27 B. D. 432.
Rule 10.—Personal service may be executed by any
officer or person.
See 4 B. D. 86, 440 and 537; 5 L. D. 214; 6 B. D. 552; 9 B. D.
79; 10 B. D. 274; 11 B. D. 264.

By registered letter not personal service. 18 B. D. 586.
Rule 11.—Notice may be given by publlcait.’on only when
.lit is shown by affidavit presented on behalf of contestant
and by such other evidence as the register and receiver
may require that due diligence has been used and that
personal service cannot be made. The affldavl't must also
state the present post-office address of the person intended
to be served, if it is known to the affiant, and must show
what effor*t has been made to obtain personal service.
Due showing must be made before publication author­
ised. Non-residents will not be heard to deny due dili­
gence. 5 B. D. 456. An affidavit which sets for'th conclu­
sions, not facts, is fatally defective as a basis for notice
of publication. 6 B. D. 669.
An affidavit showing d^igence is condition precedent
to service by publication. 6 B. D. 669; 8 B. D. 452; 16 B.
D. 26.

T
78

I

Service upon alleged guardian of a minor will not con­
fer jurisdiction If the fact of guardianship is not establ shed.
Due showing must be made before publication authorized.
9 L. D. 218; 11 L. D. 315.
If affidavit shows that the defendant is not a resident of
the state or terriitory, and personal service cannot be made,
it is not necessary to show what efforts have been made to
secure personal service. 11 L. D. 261.

Affidavit may be made by any person possessing re­
quisite information. 22 D. D. 566. See 22 L. D. 701.
No formal order of pubi cation necessary. 21 L. D.
277.

Ku l e I 2—When it is found that the prescribed service
cannot be had, either personal or by publication, in time
for the hearing provided for in the notice, the notice may
be returned prior to the time fi:çed for the hearing, and a
new notice issued fixing another time of hearing, for the
proper service thereof, an affidavit being filed by the con­
testant showing due diligence and inability to serve the no­
tice in time.
5 L D 214; 9 L D 132-606; 10 L D 621; 11 L D 605.
5.—Notice by Publication.
Ru l e I 3—Notice by publication shall be made by adver­
tising the notice at least once a week for four successive
weeks in some newspaper published in the county wherein
ine lana in contest lies; and if no newspaper be published
in such county, then in the newspaper published in the
county nearest to such land. The first insertion shall be at
least thirty days prior to the day fixed for the hearing.
Notice defective unless published “once a week for four
successive weeks,” 5 L. D. 611; 9 L. D. 131. Period of pub­
lication musb be followed strictly, 9 L. D. 606.
Day of first publication may be counted; 10 L. D. 620.
On service by publication, see 4 L. D. 84; 5 L. D. 611; 7 L. D.
198; 9 L. D. 56_1.
Rule 14.—Where notice is given by publication
thereof shall, at least thirty days before the date
hearing, be mailed, by registered letter, to each
to be so notified at the last address, if any, given
as shown by the record, and to him at his present

a copy
for th
perso i
by him
address

70
named in the affidavit for publication required by Rule
11, if such present address is stated in such aff.davit and
is different from his record address. If there be no such
record address and if no present address is named dn the
affidavit for publication, then a copy of the notice shad
be so mailed to him at the poStoffice nearest to the land.
A copy of the notice shall also be posted in the register’s
off ce for a period of at least thirty days before the date
for the hearing and still another copy thereof shall be
posted in a conspicuous place upon the land for at least
two weeks prior to the date set for the hearing. When
notice of proceedings commenced by the Grovernment aga nst
timber and stone entries is given by publicat on the post­
ing of notices upon the land will not be required.
'Sending
copy by registered letter and posting are
essential. 9 L. D. 75; 10 L. D. 131-606; 11 D. D. 434; 24 D.
D. 350.

After motion to dismiss, participating in trial, will
not give jurisdiction. 10 L. D. 131.
Rule mod.fled as to timber and stone entries. 14 L. D. 54.
Notice by registered letter should be sent to last
known address,” and no* to postoffice nearesIt the land.
21 D. D. 319.

Public^ion of notice is warranted on affidavit that
alleges defendant to be a non-resident, and shows that
personal service cannot be secured. 27 L. D. 654.
Registered letter addressed to defendant, to his address
appearing of record, is sufficient. 27 D. D. 654.

(Rule of 1896.) Does not require, lin service of notice
by publication where the suit is against the heirs of the
entryman, and the posltoffice address of such het.rs is un­
known, that a copy of the notice should be sent to said
heirs at the last known address of entryman.
29 L. D.
445-587.
If any error occurs in service by publication, which
makes niecessary a new publication, a new affidavit should
be filed as a basis of an order therefor, except when the
defect in the service is discovered during the period of
publication and a proper publicaltilon is promptly made.
29 D. D. 693.

80

1

31

PROOF OF SERVICE OF NOTICE.

8. —Rehearin gs.

Rule 15.—Proof of personal service shall be the writ­
ten acknowledgment of the person served or the affidavit
of the person who served the noitice attached thereto, stat­
ing the time, place, and manner of service.
Delivery of copy only requ'red, may be partly printed
and partly written.
Where service is admitted or undisputed 'the “place” of
service need not be shown in affidavit of proof of service.
6 E. D. 669.
Proof of service may be immaterial wnen service not
denied. 21 L. D. 383.
Rule 16.—When Service is by publication, the proof
of service shall be a copy of the advertlisemenic, with the
affidavit of the publisher or foreman attached thereto,
showing that the same was successively insierted the re­
quisite number of times, and the date thereof.

Ru l e 19.—Orders for rehearing must be brought to the
notice of the parties in the same manner as in case of orig
inal proceedings.

NOTICE OF INTERLOCUTORY PROCEEIDINOS.

'Rule 17.—Notice of Interlocutory motions, proceedings,
orders, and decisions, shall be in writing and may be served
personally or by registered letter mailed to the last address,
if any, given by or on behalf of the party to be notified,
as shown by the ^record, and if there be no such record
address, then to the postoffice nearest the land; and in
all those contest cases where noitice of contest is given by
registered mail under Rule 14, and the return regis'try receipt
shows such noitice to have been received by the contestée,
the address alt which the notice was so received shall be
considered as an address given by the conte^tee, within
the meaning of this rule.
Rule must be followed. 9 L. D. 493. Notice to entryman’s agent of cancellation held in 12 L. D. 189, to be
notice to entryman. ISee 1 L. D. 479; 3 L. D. 9y; 5 L. D.
235; 7 L. D. 335.
Notice of office, by regisitered letter, to contestant, is
sufficient. 16 L. D. 47.
Rule 18.—Proof of service by mail shall be the affidavit of
the person who mailed the notice, attached to the postoff'ice
receipt for the registered letter.
Notice of cancellation should be in strict conformity of
Rules 17 and 18. 9 L. D. 490; 11 L. D. 406.

9.—Continuances.
Ru l e 20.—A postponement of a hearing to a day to be
fixed by the register and receiver may be allowed on the
day of trial on account of the absence of material witnesses,
when the party asking for the continuance makes an affida­
vit before the register and receiver showing;
1. That one or more of the witnesses in his behalf is ab­
sent without his procurement or consent;
2. The name and residence of each witness;
3. The facts to which they would testify if present;
4. The materiality of the evidence;
5. The exercise of proper diligence to procure the attend­
ance of the absent witnesses; and
That affiant'beTieves s^^d vvitnesses can belhad at the
time to which it is sought to have the trial postponed;
7. Where hearings are ordered by the commissioner of
the general land office in cases to which the United States
is a party, continuances will be granted in accordance with
the usual practice in United States cases in the courts, with­
out requiring an affidavit on the part of the government.
Continuance cannot be demanded as a matter of right be­
cause applicant’s attorney is engaged in trial in another
court. 9 L. D. 523.
Affidavit for continuance should show witnesses not ab­
sent by procurement or consent of applicant, and what dili­
gence has been used, 7 L. D. 630.
Motion for continuance addressed to sound discretion of
trial coubt. 7 L. D. 61; 6 L. D. 164, 342, 440.
Diligence must be shown in application for. 7 D. D. 497
Sickness good cause for continuance. 17 L. D. 138. In
sorne cases affidavit for continuance may be made by
some person other than the party asking for it. 16 L. D. 106.
Application to take deposition does noit supercede the
necessitiy of applying for continuance. 16 L. D. 295.
Rule 21.—One continuance only shall be allowed to either
party on account of absent witnesses, unless the party ap-

82

83

piyiug for a further continuance shall at the same’^time ap^ply for an order to take the depositions of the alleged ab­
sent witnesses.
Ru l e 22.—No continuance shall be granted when the op­
posite party shall admit that-the witnesses would, if present,
testify to the statement set out in the application for con­
tinuance.

Ru l e 26.—After the expiration of the ten days allowed
for filing cross-interrogatories a commission to take the
deposition shall be issued by the register and receiver, which
commission shall be accornpanied by a copy of all the inter­
rogatories filed.
Ru l e 27.—The register and receiver may designate any
officer authorized to administer oaths within the county or
district where the witness resides to take such deposition.
Ru l e 28—It is the duty of the officer before whom the
deposition is taken to cause the interrogatories appended
to the commission to be w^ritten out and the answer thereto
to be inserted immediately underneath the respective ques­
tions, and the wffiole, when completed, to be read over to
the witness, and must be by him subscribed and sworn to in
the usual manner before the witness is discharged.

10.—Depositions or. Interrogatories,

Ru l e 23—Testimony may be taken by deposition in the
following cases;
1. Where the witness is unable, from age, infirmity, or
sickness, or shall refuse, to attend the hearing at the local
land oftice.
2. Where the witness resides more than fifty miles from
the place of trial, computing distance by the usual traveled
route.
3. Where the witness resides out or is about to leave the

state or territory, or is absent therefrom,
4. Where from any cause it is apprehended that the wit­
ness may be unable or will ^tuse to attend, in which case
the deposition will be used only in event that the personal
attendance of the witness, cannot be^obtainod.
Proper affidavit must be filed.

16 L. D. 97.

Ru l e 24^ The party desiring to take a deposition under
Rule 23 must comply with the following regulations:
1. He must make affidavit before the register or receiver,
setting forth one or more of the above named causes for
taking such deposition, and that the witness is material.
2. He must file with the register and receiver the inter­
rogatories to be propounded to the witness.
3. He must state the name and residence of the witness.
4. He must serve a copy of thejinterrogatorics on the op­
posing party or his attorney.
Applications in time if made on day of trial. 8 L. D. 167;
see 10 L. D. 480, 11 L. D. 575, 15 L. D. 262.
Commissioner not authorized to take depositions of wit­
nesses not, named in commission. 9 L. I). 135.
When proper showing made commission must be is­
sued. 17 L. D. 324.
Rule 25. The opposing party will be allowed ten days in
which to file cross-interrogatories.

Not necessary for certificate to show that officer read
the deposition over to witness. 25 L. D. 144.

RuLÊy^.—Tli^e olffcer must "âîtach Eis c'erTiRcate to the
deposition, stating that the same was subscribed and sworn
to by the deponent at the time and place therein mentioned.
Ru l e 30.—The deposition ar d certificate, together with
the commission and interrogatories, must then be sealed up,
the title of the cause endorsed upon the envelope, and the
whole returned by mail or express to the register and re­
ceiver.
Ru l e 3 I.—Upon receipt of the package at the local land
office, the date when the same is opened must be indorsed
on the envelope and body of the deposition by the local land
officers.
Ru l e 32.—If the officer designated to take the deposition
has no official seal, a proper certificate of his official charac­
ter, under seal, must accompany his return.
Ru l e 33.—The parties in any case may stipulate in writ­
ing to take depositions before any qualified officer, and in
any manner.
Ru l e 34.—All stipulations by parties or council must be
in writing, and be filed with the register and receiver.
ÎÎ.—Oral Testimony Before Other Officers than Registers and
Receivers:

Ru l e 35—In the discretion of registers testirnony may be
taken near the land in controversy before a United States
commissioner or other officer authorized tq administer

84

oaths, at a time and p’ o fixed by them and stated in the
notice of hearing.
2. Officers taking testimony under the foregoing rule will
be governed by the rules applicable to trials before regis­
ters and rei’eivers. (See rules 36 to 42, inclusive.)
3. Testiiiiony so taken must be certified to, sealed up and
transmitted by mail or express to the register and receiver,
and the receipt thereof at the local office noted on the pa­
pers, in the same manner as provided in case of depositions
by rules 29 to 32, inclusive.
4. On the day set for hearing at the local office the regis­
ter and receiver will examine the testimony taken by the
officer designated, and render a decision thereon in the
same manner as if the testimony had been taken before
themselves. (See rules 50 to 53, inclusive.)
5. No charge for examining testimony in such cases will
be made by the register and receiver.
6. Officers designated to take testimony under this rule
will be allowed to charge such fees as are properly author­
ized by the tariff of fees existing in the local courts of their
respective districts, to be taxed in the same or equivalent
manner as costs are taxed by registers and receivers under
rules 54 to 58, inclusive.
7. When an officer designated to take testimony un­
der this rule, or when an officer-designated to take deposi­
tions, under rule 27, cannot act on the day fixed for taking
the testimony or deposition, the testimony or deposition, as
the case may be, will be deemed properly taken before any
other qualified officer at the same place and time, who may
be authorized by the officer originally designated, or by
agreement of parties, tv act in the place of the officer first
named.
Thirty days notice required of hearings before land office,
but shorter time will answer for hearings elsewhere; 4 L D
540; 15 L D 289.
Where contest is dismissed notice should be given to con­
testant’s attorney, 15 LD 436.
Notice to attorney: notice to party; 14 L D 700.
Protestant against final proof is under no obligation tc
submit testimony before the office designated to take such
proof in absence of an order therefor under rule 35 of prac­
tice; 13 L D 203.

85

Apprehension that testimony will not be fairly taken is
not sufficient excuse for failure to appear and submit testi­
mony, under rule 35; 12 L D 30.
Under rule 35 an officer designated to take testimony in a
contest may properly authorize any other qualified officer to
take such testimony. 10 L D 418. As to authority of officer
see 11 L D 539. Officers before whom testimony is taken
under rule 35 of practice are governed by rules applicable
before the local offices. 10 L D 433. Authority to local office
to issue a commission to take deposition and grant a con
tinuance, although after testimony has been ordered and ta.
ken under rule 35. 10 L D 480. Local office may designate
officer to take testimony under rule 35. OLD 209. Testi­
mony may be taken near the land when reasonable cause
for so doing is shown. 3 L D 112. As to costs under this
rule see 3 L D 193. Also 3 L D 333. Rule 35 invests the
register and receiver with a discretion in permitting testi­
mony taken elsewhere. 2 L D 231. Local offices have a
discretion as to how far re-direct and re-cross examination
should be carried. 2 L D 234
Irregularities waiyed by
consent to the proceedings. 1 L D 474.
No comission need • be issued Ito the officer under this
rule. 23 L. D. 142.
Notary public proper officer. 17 L. D. 4.
After notice, too late to apply for order to take evi­
dence under this rule. 16 L. D. 360.
Thirty days notice necessary in contest cases, though
an earlier date is sufficient in taking testimony under
Rule 35. 28 L. D. 301.
Rule 36.—Upon the trial of a cause the register and i^eceiver may in any case, and should in all cases when neces­
sary, personally direct the exam nation of the witnesses, in
order to draw from them all the facts within their knowl­
edge requisite to a correct conclusion by the officer, upon
any point connected with the case.
Rule 37.—The register and receiver will be careful to
reach, if possible, the exact condition and status of the land
involved by any contest, and will ascertain all the facts
having any bearing upon the rights of parties in interest.
See 3 L. D.

86

87

Registers and receivers should carefully exam'ne the
record and testimony 'in reaching their conclusions. 16 L.

The right to be confronted with, and cross-examine
witnesses, in a proceeding involving life, liberty or prop­
erty, is one which all tribunals guard most jealously and
any interference therewith is not tolerated, but the abuse
of the right should be guarded; 9 L. D. 131.
There is no rule for taxing “obviously irrelevant and
clearly incompétent testimony.
This class of testimony
should not be permitted at all.” 22 L, D. 214.
Obviously irrelevant testimony is said to be “testimony
readily recognized as irrelevant, not alone by the legal,
but by the common mind.” 22 L. D. 314.
Register and receiver should “put a stop to irrelevant
questioning.” 21 L. D. 55.
The register and receiver should enforce this rule as
to irrelevant tesitimony. 21 L. D. 480.
,
See 18 L. I>. 559.

Ru b e 38,—In pre-emption cases they will particularly as­
certain the nature, extent, arrd value of alleged improve­
ments; by whom made, and when; the true date of the settlei^ent of persons claiming; the steps taken to mark and
secure the claim, and the exact status of the land at that
date as shown upon the records of their office.
See 3 L D 86.
Ru l e 39 —In like manner, under the homestead and other
laws, tne conditions affecting the inception of the alleged
vight,
Well as tho ©ubsoQuent acts of thè respective claim­
ants, must be fully and speeidcally èxamirlèd.
RUh^
opportuBity will be allowed opposing
elaimanU to confront and eross-examine witnesses intro­
duced by oither party.

See 11 I# 1) 4^1.
Parties have undisputed right to^e present at the hear­
ing and eross-èxainlne the witnesses; 14 L D 472.
RVl ìì 41 —No testimony will be excluded from the record
by the register and receiver on the ground of any objection
thereto} but when objection is made to testimony offered,
the exoeptlong will be noted, and the testimony, with the
exeeptioas, will eome up with the case for the consideration
of the OOmmissionei\ Officers takins* t'?stimony will, how­
ever, summarily put a stop to obviously Irrelevant ques­
tions.
Local officers are entrusted with the discretionary
p®wer to determine whether additional testimony will cause
unnecessary expense, 12 L D 109.
Nothing but “obviously irrelevant” testimony should be
excluded from the record; 11 L D 461; 4 L 'D 381; 6 L D 272.
Officers have a right to summarily put a stop to
obviously Irrelevant questioning, but rule 56 makes it dis­
cretionary with the officers to allow such irrelevant
questioning at the cost of the party making such examin­
ation; 10 L D 628.
Local officers have no authority to exclude testimony
that is offered, but should summarily put a stop to obvious­
ly Irrelevant questioning; 9 L D 130.

Ru l e 42—Upon the day originally set for hearing, and
upon any day to which the trial may be continued, the tes­
timony of all the witnesses present shall be taken and re­
duced to writing. When testimony is taken in short-hand,
the stenographer’s notes must be written out, and the
written testimony then and there subscribed by the witness
and attested by the officer before whom the same is taken.
Rule 42 modified in taking testimony in townsite cases;
12 L D 186.
Parties estopped from objecting to testimony taken, in
compliance with rule 42, after consenting to take such tes­
timony; 7 L D 292.
Rule 42 construed 4 L. D. 541.
Local officers cannot dismiss case in contravention of rules
41 and 42. 2 L. D. 581.
Prior (to 'April 18, 1899, where evidence is taken by sten­
ographer the tesitimony must be written out and subscribed
to by witness. The above rule was amended on the 18th
day of April, 1899, permitting parties by written stipulation
to waive 'that portion of the rule, requiring the testimony
to be written out and subscribed by the witness.
^ee
28 *L. D. 301.

88

89

Rule 43.—Appeals from the final action or decisions
of registers and receivers lie in every case to the Commis­
sioner of the General Land Office. (Revised Statutes, sec­
tions 453, 2478.)

Ru l e 44—After hearing in a contested case has been had
and closed, the régis'ser and receiver will, in writing, notify
the parties in interest of the conclusions to which they have
arrived, and that thirty days are allowed for an appeal from
their decision to the commissioner, the notice to be served
personally or by registered letter through the mail to theii
last known address.
Ten days additional allowed where notice of decision is
sent through the mail; 7 L. D. 387. 1 L. D. 114, 1 L. L. 118.
As to costs see 6 L. D. 765.
For construction of rule see 5 L. D. 246.
Notice to attorneys is sufficient; 3 L. D. 183.
Notice cannot be made by a passing remark on the street.
Notice must conform to the legal definition, to-wit: “A
writing, containing formal, customary or presented inform­
ation;” 1 L. D. 479.
Ru l e 45—The appeal must be in writing or in print, and
should set forth in brief and clear terms the specific points
of exception to the ruling appealed from.
Specifications of error to receive consideration must set
out the particular objections raised to the decision from
which appeal is taken; 14 L. D. 700.
Notice of appeal must be served on adverse party in in­
terest; appeal may properly be dismissed on failure thereof;
10 L D 546-595; 11 L D 407.

In cases dismissed for want of prosecution the register
receiver will by registered letter notify the parties in
interest of the action taken, and that unless within thirty
days a motion for reinsitatement shall be made, the defau t
of the plaintiff will be final, and that no appeal will ba
allowed; which notice shall be given as provided in c’rcular of October 28, 1886 (5 B. D. 204.)
If such motion for reinstatement be made within the
time limited, the local officers shall take action thereon,
and grant or deny it, as they deem proper. If granted,
no appeal shall lie. If overruled, the plaintiff shall have
the right of appleal, the time for which shall be thirty days,
and run from the daite of written notice to the plaintiff.

Rule 70, as amended October 26, 1885, provides: “Rule 43
and 48 inclusive, and rule 93 are not applicable to appeals
from decisions rejecting applications to enter public lands.
Rules 43 to 48 inclusive, relate to appeals from final deci­
sions of the local officers to the commissioner. 14 L. D. 661.
For rule in regard to service of notice of appeal see 11
L. D. 621; 14 L. L. 622.
Failure to appeal within thirty days from the rejection o1
an application to enter land; party loses all right under his
application, 13 L. D. 250.
Right of appeal should not be denied or abridged. 13 L«
D. 277.
There is no appeal from an interlocutory order. 12 L. D.
63; 9 L. D. 252.
In appeals the conditions prescribed by the rules of prac­
tice must be complied with; 5 L. D. 671.
Distinction drawn between appeals from local and the
general land offices; 1 L. D. 472.
Rule 43 to 48 inclusive pertain to appeals from the
local office. 27 L. D. 143.
*

Ru l e 46 —Notice of appeal and copy of specification of
errors shall be served on appellee within the time allowed
for appeal, and appellee shall be allowed ten days for reply
before transmittal of the record to the General Land Office.
There is no form of words necessary to be used in giving
notice of appeal; 11 L D 406.
Ten days additional allowed to file appeal where notice
is sent through the mail; 7 L D 387.
Rule 46 applies with reference to the rights of parties be­
tween themselves, and shall not operate as a restriction up­
on the power or authority of the commissioner to reject or
approve the finding of the local officers upon a question of
fact or other decision upon law applicable thereto; 5 L
D 245.

90
Where notice of appeal is not served within ri^quired
time, the finding of the local office becomes final as to
the facts, and no appeal will liie from the decision of the
Commissioner affirming 'the action below. 18 L. D. 153.

Ru l e 47—No appeal from the action or decisions of the
register and receiver will be received at the General Land
Ofiice unless forwarded through the local officers.
Under rule 47 see 2 L D 169; 3 L D 184-608; 4 L D 277-571.
Ru l e 48—In case of a failure to appeal from the decision
of the local officers, their decision will be considered final
as to the facts in the case and will be disturbed by the
commissioner only as follows:
1. Where fraud or gross irregularity is suggested on the
face of the papers,
2 Where the decision is contrary to existing laws or reg­
ulations.
3. In event of disagreeing decisions by the local officers.
4. Where it is not shown that the party against whom
the decision was rendered was duly notified of the decision
and of his right of appeal.
In the absence of appeal finding of local office is final as
between litigants; 13 L D 37; 15 L D 400; 5 L D 585; 13 L D
688; 12 L D 419; 7 L D 20; 7 L D 98; 6 L D 359.
Appeal lies from the commissioner on refusal to order
hearing; 15 L D 290.
Government has ample authority to rectify errors in local
office without formality of appeal where there is no adverse
claimant for the land; I3 L D 603.
Appeal should be from the original decision, and not
from the refusal to consider such decision; 9 L D 388.
Decision of the local office contrary to law should be re­
versed by the commissioner in the absence of appeal, under
the second exception of rule 48 of practice, 6 L D 392; 5 L
D 624; 5 L D 212.
'See 25 L. D. 345; 24 L. D. 244, 385. Where one party
appeals from the decision of thte local office, the case comes
up for disposition on its merits, and not under Rule 48.
23 L. D. 562.

¡To jus^tify the finality as to the facts provided for
under 'Rule 48, the findings of ’the local office must be

91
posliitive and unequivocal and nc/t argumentative or pre­
sumptive. 22 D. D. 76.
Finding of facts by local office should not be held final
if the findings are based on matters not properly at issue.
22 L. D. 67.

Failure of parties to appeal from an adverse decision
leaves the case to be determined as between the govern­
ment and party successful below. 21 L. D. 284.
When appeal is dismissied as insufficient the decision
below as to facts should not be disturbed, except under
Rule 48. 20 L. D. 41, 456.
here fraud or gross irregularity is suggested on the
face of the papers the General Land Offhe is not pre­
cluded from an examination of the facts. 20 B. D, 516.
Failure to appeal from the decision of the local offiers leaves their find ngs of facts final. 18 L. D. 409.
Appeal to Secretary will not be considered in absence
of notice to opposite party, ahhough the appeal of other
party 'to the Commissioner was dismissed for failure to
file the same in time. 17 L. D. 48.
In absence of appeal, register’s and receiver’s decision
only final as to facts. 28 L. D. 48.

Ru l e 49—In any of the foregoing cases the commissiomr
will reverse pr modify the decision of the local officers or
remand the case, at his discretion.
2 L D 265; 5 L D 212; 2 L D 655; 9 L D 439.
Ru l e 50.—All documents once received by the local of­
ficers must be kept on file with the cases, and the date of
filing musti be noted thereon; and no papers will be allowed
under any circumstances to be removed from the files or
from the custody of the register and receiver, but access to
the same, under proper rules, so as not to interfere with nec­
essary public business, will be permitted to the parties in
interest, or their attorneys, under the supervisions of those
officers.
4 L D 246.
14— Roporis and Opinions.
Ru l e 51.—Upon the termination of a contest the regis­

ter and receiver will render a joint report and opinion in

92
the case, making full and speci^^.c reference to the postings
and annotations upon their records.
After a decision local officers have no jurisdiction until
instructed by the general office. 6 L D 234. 8 L D. 359. 10
L D 678. Decision should be retained in the local of­
fice for 30 days follow'ing notice of decision. 4 L D 203.
After decision papers should be retained in local office ten
days after the expiration of 30 days provided in rule 51, to
allow appellee to examine papers. 3 L. D. 38. 2 L D. 655.
Ru l e 52.—The register and receiver will promptly for­
ward their report together with the testimony and all the
papers in the case to the Commissioner of the General Land
Office, with a brief letter of transmittal, describing the case
by title, the nature of the contest, and the tract involved.
4 L. D. 246-466. 6 L. D. 369. 6 L. D. 12. 10 L. D. 679-690.
Rule 53.—The local officers will thereafter take no fur­
ther action affeciting the disposal of the land in contest
until instructed by the Commissioner.
In all cases, however, where a conteslt has been brought
against any entry or filing on the public lands, and trial
has taken place, the entryman may, if he so desires, in
accordance with the provisions of the law under which he
claims and the rules of the Department, submit final proof
and complete the same with the exception of the payment
of the purchase money or commissions, as the case may
be; said final proof will be retained in the local land office,
and should the entry finally be adjudged valid, said final
proof, if satisfactory, will be accepted upon the payment
of the purchase money or commissions, and final certificate
will issue, without any further action on the part of the
entryman, except the furnishing of a non-alienation affida­
vit by the entryman, or in case of his death, by his legal
representatives.
In such cases the party making the proof, at the time
of the submitting the same, will be required to pay the fees
for reducing the testimony to writing.
1 L. D. 156. 2 L. D. 55-257-284. 3 L. D. 209-434. 4 L. D.
466. 5 L. D. 369. 8 L. D. 121-463.

93
Rules 53 as amended March 15, 1892, permit final proof
to be taken and accepted by the local office after the trial
of the contest involved in the entry. See 14 L. D. 250. 14
D. D. 411
A relinquishment filed during the pendency of the ap
peal leaves the land open to the first legal application sub­
ject ¡to the final disposition of the pending appeal. 13 L. D.
590. 12 D. D. 11-19. 10 L. D. 16-679. 9 L. D. 59-281-299-323578.
-------One who submits final proof under this rule, during
pendency of contest involving an adverse settlement claim,
must stand or fall on the showing made. 26 L. D. 64.
15.—TAXATION OF COSTS.
Rule 54.—Parties contesting pre-emption, homestead, or
timber culture entries and claming preference rights of en­
try under second section of the act of May 14, 1880 (21 Stat.
140,) must pay the costs of the contest.
4 L. I) 207; 6 L. D. 600; 8 L. D. 494; 10 L D. 628-680; 11 L.
D. 389; 12 L. D. 109; 13 L. D. 290; 14 L. D. 92.
Under charge of non-compliance with the law, con­
testant must pay all the costs. 26 L. D. 210, 384.
Rule 55.—In other contested cases each party must pay
the costs of taking testimony upon his own direct and
cross-examination.

Rule 55 construed to mean that each party must pay
the costs of taking testimony of witnesses, both in cross
and direct examination of such witnesses. 11 L. D. 388, 10
L. D. 625.
This rule amended to allow register and receiver to tax
costs on cross-examination where the said examination is
irrelevant. 10 L. D. 680.
Officers may require deposit in advance for costs,
8 L.
D. 493, 6 L. D. 599.
¡As to taxing co^ts. 26 L. D. 57.
Rule applies in hearings on special agent’s report. 26
L. D. 519.
Rule 56.-^The accumulation of excessive costs under
Rule 54 will not be permitted; but when the officer taking

95

94
testimony shall rule that a course of examination is irrelevarut and checks the same, under rule 41, he may, never­
theless, in his discrtefon, allow the same to proceed at the
sole cost of the party making such examinaiTon. This ru’e
will apply also to cross-examination in contes s covered by
the provisions of Rule 55.
3 L. D. 52; 4 L. D. 207; 9 L. D. 134; 10 L. D. 628, 680;
12 R. D. 109.
Rule 57.—Where parties contesting pre-empotion, home­
stead, or timber-culture entr es establish their right of en­
try under the pre-emption or homestead laws of the land
in contest by virtue of actual settlement and improvement,
without reference to the act of May 14, 1880, thie cost of
contest will be adjudged under Rule 55.

6 L. D. 661; 26 L. D. 210.
Ru l e 58.—Registers and receivers will apportion the
costs of contest in accordance with the foregoing rules, and
may require the party liable thereto to give security in ad­
vance of trial, by deposit or otherwise, in a reasonable
sum or sums, for payment of the costs of transcribing the
testimony.

6 L. D. 599; 8 L. D. 494.

Ru l e 59.—The costs of contest chargeable by registers
and receivers are the legal tees for reducing testimony to
writing. No other contest fec.^ or costs will be allowed to
or charged by those otlicers directly or indirectly.

2 L. D. 223.

Ru l e 60.—Contestant must give their own notices and
pay the expenses thereof.
Service of notice is left with the contestant, and failure
to serve notice of contest and initiaition of new proceed ng^,
by the contestant is an abandonment of the first contes:
and warrants a dismissal thereof. 10 L. D. 268.

Ru l e 61—Upon'theTermination of a trial, any excess, in
the sum deposited as security for the costs of transcribing
the testimony will be returned to the proper party«
Ru l e 62—When hearings are ordered by the commissioner
by the secretary of the Interior, upon the discovery of rea­
sons for suspension in the usual course of examination of
entries, the preliminary costs will be provided from the
contingent fund for the expenses of local land offices.
Ru l e 63—The preliminary costs provided for by the pre­
ceding section will be collected bv the register and receiver

when the parties are brought before them In obedience to
the order of hearing.
Ru l e 64—The register and receiver will then require
proper provision to be made for such further n@tification as
may become necessary in the usual progress of the case to
final decision.
Ru l e 65 —The register and receiver will append to their
report in each case a statement of costs and the amount ac­
tually paid by each of the contestants, and also a statement
of the amount deposited to secure the payment of the costs,
how said sum was apportioned, and the amount returned, if
any, and to whom.

16—Appeals from Decisions Rejecting Applications to Enter
Public La7ids.
Ru l e 66—For the purpose of enabling appeals to be taken
from the rulings or action of the local land officers relative
to applications to file upon, enter, or locate the public lands
the following rules will be observed;
1. The register and receiver will indorse upon every re­
jected application the date when presented and their rea­
sons for rejecting it.
2. They will promptly advise the party in interest of
their action and of his right of appeal to the commissioner.
3. They will note upon their records a memorandum of
the transaction.
See 2 L. D. 278, 280; 3 L. D. 281; 4 L. D. 9; 5 L. D. 380; 12
L. D. 235, 648; 14 L. U. ßßl.
(Rule 67.—^The party aggrieved will be allowed thirty
days from receipt of notice in which to file his appeal in
the local land office. Where the notice is sent by mail,
five days additional will be allowed for the transm ssion
of notice and five for the return of the appeal.

2 R. D. 280, 7 R. D. 388, 13 R. D. 250.
Ru l e 68. —The register and receiver will promptly for­
ward the appeal to the General Land Office, together" with
a füll report upon the case.

3 L. D. 119.
Ru l e 69.—This report should recite all the facts and th<
proceedings had, and must embrace the following particu­
lars:
1. A statement of the application and rejection, with the
reasons for rejection.

96

97

2. A description of the tract involved and a statement of
its status, as shown by the records of the local land office.
3. References to all entries, filings, annotlations, memo­
randa, and correspondence shown by the record relating to
said tract and to the proceed ngs had.
Rule 70.—Rules 43 itio 48, inclusive, and Rule 93 are
applicable to all appeals from decisions of registers and
receivers.
4 L. D. 234; 14 R. D. 661; 12 L. D. 93; 23 L. D. 412.

Ru l e 75.—If before decision by the commissioner either
party should desire to discuss a case orally, reasonable oppertunity therefor will be given in the discretion of the
commissioner, but only at a time to be fixed by him upon
notice to the opposing counsel, stating time and specific
points upon which discussion is desired; and, except as here­
in provided, no oral hearings or suggestions will be al­
lowed.

II.
(Proceedings before Surveyors-General.)
Ru l e 7 I.—The proceedings in hearings and contests be­
fore surveyor-general shall, as to notice, depositions, and
other matters, be governed as nearly as may be by the rules
prescribed for proceedings before registers and receivers,
unless otherwise provided by law.

/

III.
(Proceedings before the Commissioner of the General Land
Office and Secretary of the Interior.)

1.—Examination and Argument.

'
Ru l

e

72.—When a contest has been closed before the

local land officers and their report forwarded to the Gen­
eral Land Office, no additional evidence will be admitted
In the case, unless offered under stipulation of the parties
to the record, except where such evidence is presented as
the basis of the motion for a new trial or in support of a
mineral application or protest; but this rule will not
prevent the Commissioner, in the exercise of his discretion,
from ordering further investigation when necessary.
5 L. D. 59; 352, 426; 9 L. D. 254, 626; 11 L. D. 261, 554;
15 L. D. 95, 195; 22 L. D. 199.
Rule 73.—After the Commissioner shall have received a
record of testimony in a contest case, thirty days w<d be al­
lowed to expire before any action thereon is taken, unless
in the judgment of the commissioner, public policy or pri­
vate necessity shall demand summary adtion, in which case
he will proceed at his discretion, first notifying the attor­
neys of record of his proposed action. 24 L. D. ¿03.
Rule 74.—When a case is pending on appeal from the de­
cision of the register and receiver or surveyor-general and
argument is not filed before the same is reached in its order
for examination, the argument will be considered closed,
and thereafter no further arguments or motions of any kind
will be entertained except upon written stipulation duly
fied or good cause shown to the commissioner.

i

2.—Rehearing and Review.
Ru l e 76.—Motions for rehearing before registers and

receivers, or for review or reconsideration of the decisions
of the commissioner or secretary, will be allowed, in ac­
cordance with legal principles applicable to motions for new
trials at law, after due notice to the opposing party.
24 L. D. 402.
Rule 77. Motions for rehearing and review, except as
provided in Rule 114, must be filed in the office wherein the
decision to be affected by such rehearing or review was
made, or in the local land office, for the rransmittal tío the
general land office; and, except when based upon newlydiscovered evidence, must be filed within thirty days from
notice of such decision.
14 L. D. 155; 13 L. D. 34, 266, 387; 12 L. D. 46, 648; 21
L. D. 164; 20 L. D. 118.
Motions for rehearing, except when based upon newlydiscovered evidence, must be filed within thirty days after
noice of decision. 26 L. D. 443.
Rule 78. Motions for rehearing and review must be ac­
companied by an affidavit’of the party, or his attorney, that
the motion is made in good faith, and not for the purpose of
delay.
11 L. D. 624; 12 L. D. 447, 648; 13 L. L. 265, 687; 23
L. D. 401; 22 L. D. 671.
Rule 79. The time between the filing of the motion for
rehearing or review and the notice of the decision upon such
motion shall be excluded in computing the time allowed for
appeal.
3 L. D. 540; 8 L. D. 421; 13 L. D. 195; 12 L. D. 62. 648;
24 L. D. 388.
Can only be invoked on behalf of litigant who has him­
self filed a motion for review (19 L. D. 294,) but where a de­
cision affects adversely the rights of two parties and one

9S

99

applies in time for review, the case will be considered on its

Rule 84.—Applications to the secretary under the pre­
ceding rule shall be made in writing, under oath, and shall
fully and specifically set forth the grounds upon which the
application is made.
11 L. D. 474; 13 L. D. 259, 397, 478, 635; 15 L. D. 191, 291; 22
L. D. 122; 20 L. D. 287.
Rule 85. When the Commissioner shall formally decide
against the right of an appeal, he shall suspend adtion on
the case at issue for twenty days from service of notice of
his decision, to enable the party against whom the decis on
is rendered to apply to the Secretary for an order, in accordance with Rules 83 and 84.
10 L. D. 690; 15 L. D. 244, 527; 24 L. D. 385; 20 L.
D. 287.
Rule 86 Notice of an appeal from the Commissioner s
decision must be filed in the General Land Office and served
on the appellee or his counsel within s xty days from the
date of the service of notice of such decision.
9 L. D. 189, 265, 278; 10 L. D. 409; 11 L. D. 49, 440; 13
L. D. 697; 14 L. D. 428; 24 L. D. 227; 23 L. D. 413; 20
L. D. 89, 411.

merits. 26 L. D. 639.
Rule 80. No officer shall entertain a motion after an
appeal from his decision has been taken. 3 L. iD. 540.

3.—Appeal from the Commissioner to Secretary.
Rule 81. No appeal shall be had from the adtiion of the
Commissioner of the General Land Office affirming the de­
cision of the local officers in any case where the party or
parties adversely affected thereby shall have failed, after
due not’ce, to appeal from such decision
of said loca’
officers.
Subject to this provision, an appeal may be taken from
the decision of the Commissioner of the Genej*al Land Office
to the Secretary of the Interior upon any question relating
to the disposal of the public lands and to private land
claims, except in case of interlocutory order.s and decisions
and orders for hearing or o<thler matter re-s'Jng in the dis­
cretion of the Commissioner. Decisions and orders form­
ing the above exception will be noted in the record, and will
be considered by the Secretary on review in (ase an appeal
upon the merits be finally allowed.
9 L. D. 389; 10 L. D. 252; 13 L. D. 279, ?48, 707, 721; 15
L. D. 188; 14 L. D. 698.
Rules 81 to 103 inclusive pehtain to appeal from Commis­
sioner. 27 L. D. 143; 22 L. D. 641; 21 L. D. 555.
Rule 82. When the Commissioner considers an appeal
defective, he will notify the pafit^ of the defect, and if not
amended within fifteen days from the date of the serv ce
of such notice the appeal may be dismissed by the Secre­
tary of the Interior and the case closed.
8 L. D. 471; 9 L. D. 482, 599, 620; 10 L. D. 573, 595; 11
L. D. 375; 14 L. D. 217; 24 L. D. 231; 23 L. D. 412; 22 L.
D. 436; 20 L. D. 130.
Rule 83. In proceedings before the Commissioner, in
which he shall formally decide tha)t a par .y has no right
of appeal to the Secretary, the party against whom such
decision is rendered may apply to the Secretary for an order
d, reeling the Commissioner to certify said proceedings to
the Secretary and to suspend further action until the Secre­
tary shall pass upon the same.
11 L. D. 260; 13 L. D. 259, 397, 478, 635, 722; 14 L. D. 176;
15 L. D. 191, 244, 527; 21 L. D. 122; 20 L. D. 178, 287.

Rule 87. When notice of the decision is given through
the mails by the register and receiver or surveyor-general,
five days addiitional will be allowed by those officers for the
transmission of the letter and five days for the return of the
appeal through the same channel before reporting to the
General Land Office.
9 L. D. 278; 11 L. D. 440; 12 L. D. 62; 13 L. D. 137, 501.
697; 14 L. D. 428; 24 L. D.. 323, 472; 20 L. D. 89, 538.
Rule 88.—Within the time allowed for giving notice of
appeal the appellant shall also file in the General Land
Office a specification of errors, which specification shall
clearly and concisely designate the error of which he com­
plains.
9 L. D.12, 278, 560, 599; 10 L. D. 547, 11 L. D. 198, 216; 12
L. D. 27, 30, 99; 12 L. D. 249, 306; 14 L. D. 218. 15 L. D. 567; 24
L. D. 231, 490,; 20 L D. 329.
What the specificaitons of error must contain. 28 D. D.
11; 27 L. D. 54.
Rule 89. He may also, within the same time, file a wrlt’4en argument with citation of authorities, in support of his
appeal.

lOO

loi

Rue 90. A failure to file a specification of errors within
the time required will be treated as a waiver of the right of
appeal, and the case will be considered closed.
4 B. D. 551; 5 L. D. 112, 252; 6 L. D. 315; 8 L. D. 470; 14 L.

Rule 98. Noitice of interlocutory motions and proceed­
ings before the commissioner and secretary shall be served
personally or by registered letter, and service proved as pro­
vided in rules 94 and 95.
Rule 99. No motion affecting the merits of the case or
the regular order of proceedings will be entertained except
on due proof of service of notice.
3 B. D. 135; 4 B. D. 107; 13 B. D. 279; 14 B. D. 93.
Rule 100. Ex parte cases and cases in which the adverse
party does not appear will be governed by the foregoing
rules as to notices of decisions, time for appeal, and fil ng
of exceptions and argumentls, as far as applicable. In such
cases, however, the right to file additional evidence at any
stage of the proceedings to cure defects in the proof or
record will be allowed.
Rule 101. No person hearafter appearing as a party or
attorney in any case shall be entitled to a notice of the pro­
ceedings who does not at the time of his appearance file in
the office in which the case is pending a statement in writ­
ing, giving his name and postoffice address and the name of
the pafity whom he represents; nor shall any person who
has heretofore appeared in a case be entitled to a notice un­
less within fifteen days after being requested to file such
staltemJent he shall comply with said requirement.
9 B. I>. 12.
Rule 102. No person not a party to the record shall in­
tervene in a case without first disclosing on oath the nature
of his interest.
8 B. D. 285; 9 B. D 46, 249, 628; 11 B. D. 365, 499; 13 B.
D. 392.
Rule 103. When the commissioner makes an order or
decision affecting the merits of a case or the regular order
of the proceedings therein he will cause notice to be given to
each party in interest whose address is known.
3 B. D. 53
Rule 104. In all cases, contested or ex parte, where
the parties in interesIt are represented by attorneys, such
attorneys will be recognized as fully controlling the cases
of tneir respective clients.
3 B. D. 409, 607; 4 B. D. 9;14 B. D. 443; 24 Bu D. 277; 21
B. D. 96.
Rule 105. All notices will be served upon the attorneys
of record.
3 B. D. 409, 608; 4 B. D. 9; 5 B. D. 480; 14 B. D. 443; 24 B.
D. 277

D. 249; 24 L. D. 231.
Rule 91. The appellee will be allowed thirty days from
the expiraltion of the sixty days allowed for appeal in which
to file* his argument.
Rule 92. The appellant shall be allowed thilMy days fom
service of argument of appellee in which to file argument
strictly in reply, and no other or further argumenits or mo­
tions of any kind shall be filed without permission of the
commissioner or secretary and notice to the opposite party.
5 L. D. 676.
Rule 93. A copy of the notice of appeal, specification of
errors, and all arguments of either party, shall be served
on the opposite party within the time allowed for filing the
same.
10 L. D. 409, 547; 11 L. D. 48, 49, 249, 385, 392; 12 L. D. 61;
14 B. D. 661; 24 L. D. 230, 323, 402; 22 L. D. 89.
Rule 94. Such service shall be made personally or by
registered letter.
,
1 Lr. D. 110; 3 L. D. 135; 5 L. D. 476, 479; 9 L. D. 170,
189; 11 L D 249; 12 L. D. 61; 24 L. D. 490.
Rule 95 Proof of personal service shall be the written
acknowledgement of the party served, or the aifidavit of the
person making the service attached to the papers served,
and stating time, place, and manner of service.
3 L. D. 135; 5 L. D. 479; 15 B. D. 388; 23 B. D. 530.
Rule 96. Proof of service by registered letter shall be
the affidavit of the person mailing the letter attached to a
copy of the postoffice receipt.
3 B. D. 135; 5 B. D. 479; 9 B. D. 189; 12 B. D. 61; 13 B. D.
5; 15 B. D. 388; 24 B. D. 490.
This rule does not make a specific provision as to the
manner in which notice of appeal shall be served.
27 B. D. 142.
Rule 97. Fifteen days, exclusive of the day of mailing,
will be allowed for the transmission of notices and papers
by mail, excepit in case of notice to resident attoreys, when
one day will be allowed.
4 B. D. 551; 6 B D. 140; 11 B. D. 440; 14 B. D. 428;26 B.
D. 431.
*

I

e

103
Rule 106. Notice to one attorney in a case shall consti­
tute notice to all counsel appearing for the party repre­
sented by him, and notice to the attorney will be deemed
notice to the party in interest.
1 Li. D. 120; 3 L. D 184, 608, 409; 4 L. D. 9; 11 L. D. 395,
441; 15 L. D. 308;20 L. D. 89.
Notice to the attorney is notice to the party.
25 L. D. 36.
Rule 107. All aJttorneys practicing before the General
Land Office and Department of the Interior must first file
the oath of office prescribed by section 3478 United Slates
Revised Statutes.
Rule 108. In the examination of any case, whether con­
tested or ex parte the attorneys employed in said case, when
in good standing in the Department, for the pieparation of
arguments, will be allowed full opportunity to consult the
records of the case, the abstracts, field notes, and tract
books, and the correspondence of the General I^and Office or
of the Department not deemed privileged and confidential:
and whenever, in the judgment of the Commissioner, it
would not jeopardize any public or official interest, may
make verbal inquiries of chiefs of divisions at their respect­
ive desks in respect to the papers or status of said case;
but such inquries will not be made to said chiefs or other
clerks of division except upon consent of the Comm ss'oner,
assistant commissioner, or chief clerk, and will be restrict­
ed to hours between 11 a. m. and 2 p. m.
4 L. D. 336; 5 L. D.'401.
Rule 109. Any attorney detected in any abuse of the
above privileges or of gross misconduct, upon satisfactory
proof thereof, after due notice and headitig, shall be pro­
hibited from further practicing before the Department.
Rule 110. Should eiither party deslire to discuss a case
orally before the secretary, opportunity will be afforded at
the discretion of the Department, but only at a Jme speci­
fied by the secretary, or fixed by stipulation of the parties,
with the consent of the secretary and in the absence of
such stipulation or written nbtice to opposing counsel, with
like consent, specifying the time when argument will be
heard.
20 D. D. 122.
Rule 111. The examination of cases on appeal to th©
commissioner or secretary will be facilitated by filing in
printed form such argumenits as it desired to have con­
sidered.
Rule 112. Decisions of the commissioner not appealed
from within the period prescribed become final, and the
case will be regularly closed.

103
4 L. D. 508; 85 L. D. 422; 6 L. D.6; 14 L. D. 683.
Rule 113. The decision of the secretary, so far as re­
spects the action of the executive is final.
Rule 114. ‘Motioils for review or rehearing K>efore tte
secretary mu^t be filed with the commiss oner of the gen­
eral land office within thirty days after notice of the de­
cision complained of, and w.ll act as a supersedeas of the
decision until otherwise directed by the secretary.

Any such motion must state concisely and specifically
the grounds for review of rehearing, one or both as the case
may be, upon which it is based, and may be accompanied by
an argument in support thereof.
Upon its receipt, the iComm:ssioner of the General Land
office will forward the motion immediately to this depart­
ment, where it will be treated as “special.” If the motion
does not show proper grounds for review or rehearing, it
will be denied, and sent to the files of the General Land Of­
fice, whereupon the Commissioner w'lll remove the suspension
and proceed to execute the decision before rendeifed. But
if, upon examination, proper grounds are shown, the motion
will be entertained and the moving party notified whereupon
he will be allowed thirty days within which to serve the same
together' with all argument in support thereof, on the op­
posite party, who will be allowed thirty days thereafter in
which to file and serve an answer, but consideration of the
motion will not be deferred for fufther argument.
6 L. D. 796; 10 L. D. 690; 12 L. D. 423; 13 L. D. 34; 23 L.
D. 244, 406; 22 L. D. 671; 20 L. D. 407, 419.
When motions for review and rehearing have been acted
upon, subsequent motions will not act as a supersedeas, ex­
cept on express order of the secretary.
26 L. D. 443; 25 L. D. 154.
Pe*t!iJtion for re-review shoud not be filed in the local
office, but should be addressed to the secretary of interior.
25 L. D. 292.
Rule 115. None of these rules Shall be construed to de­
prive the secretary of the interior of either the directory or
supervisory power conferred upon him by law.

104

Contests.
The following- is taken from the general land office cir­
cular issued July 11, 1899:
Any person may contest an entry, location, or selection
made under any law of the United States, for any sufficient
cause affecting- the legality or validity of the same.
Applications to contest must be filed with the reg’ster
and receiver.
An affidavit is required in each case, setting forth the
facts which constitute the grounds of con test. This afffdav it
should be corroborated by the affidavits of one or more wit­
nesses in cases where an entry has been allowed and re­
mains of record. Contest affidavits may be made before
any officer authorized to administer oaths.
A person who contests and secures the cancel’ation of
any entry of record has a preference right for thirty days
from receipt of notice of such cancellation in which to enter
the land formerly covered by contested entry, and during
such period of thirty days the said land wiill be reserved
from entry by any other person, though applications to en­
ter made by other persons must, if presented, be received
and held to await the expiraition of the successful contest­
ant’s preference right, after which such intervening appli­
cations will be acted upon lin the order in which they have
been received.
Where an entry exists that is pr’ma facie vald and an
appropriation of the land, no application to enter will be
received for another entry of the land until the existing
entry is vacated by regular proceedings, except in cases of
contests under the third section of the timber-culture act of
June 14, 1878.
No appVcation will be received, or any rights recog­
nized as initiated by the tender of an application for a
tract embraced in an entry of record until said entry has
been cancelled upon the records of the local office. There­
after, and until the period accorded a successful contestant
has expired, or he has waived h's preferred right, applica­
tions may be received, entered, and held subject to the
rights of the contestant, the same to be disposed of in the
order of filing upon the expiraJtion of the period accorded the
successful contestant or upon the filing of his waiver of h’s
preferred right.

If a contest is brought against the heirs of a deceased
entryman, the affidavit of contest must state the names of

105
all known heirs, and the notice of hearing must be served on
each heir. If the person to be served is an infant under
14 years of age, or is of unsound mind, service of not ce
shall be made by delivering a copy of the ndtice to the
statutory guardian or committee of such infant or person
of unsound mind, if there be one, and if there be none,
then to the person having such infant or person of unsound
mind in charge. (19 U. D. 45.)
It is provided by the amendatory act of congress approv­
ed July 26, 1892 (27 Stat. L., 270); that should any person who
has initiated a contest die before the final term nation of the
same, sa'd contest shall not abate by reason thereof, but
his heirs who are citizens of the United States may con­
tinue the prosecution of such contest and be entitled to the
same rights that contestant wou’d have been If his death
had not occurred. In any case, when the d^^ath of the con­
testant is suggested upon the record, his heirs who are citi­
zens of the Un ted States will in all subseouent proc?edings
be treated as parties to the case, provded the death of
contestant occurred subsequent to the passage of said act
of July 26, 1892.
It is held by the Supreme Court of the United Sta^-es
(Bernier vs. Bernier, 147 U. S. 242) that upon the death of a
homesteader who leaves no widow, but both adult and minor
heirs all rights under the entry pass to all the heirs
equally and not to the minor heirs exc’usively, as formerly
held by the department. In case of a contest under such
circumstances, therefore, all the heirs must be served with
notice of such contest.
Av here leave of absence is granted to a homestead entryman, contest for abandonment cannot be brought until six
months from the expiration of such leave have e’apsed,
unless fraud in procuring thie leave of absence is charged.
(Hiltner vs. Wortler, 18 U. D., 331.)
No homestead, timber-culture, desert land, or pre­
emption entry can be contested after the lapse of two years
from the date when final certificate has issued thereon,.
(iSec. 7 of act March 3, 1891, 26 Stat. L.., 1095.)
When a contest has been closed before the local land
officers and their report forwarded to the general land office,
no additional evidence w ll be adm'’tted in thfe case, unless
offered under stipulation of the parties to the record, except
where such evidence is presented as the basis of a motion
for a new trial or in support of a mineral application or p-^otest (rule 72 of Rules of Pratice), and neither arguments,
motions, letters containing ex parte statements relative to
the case, nor even appeals can be considered unless they
bear evidence of having been duly served upon the adverse
party or parties in interest.

lOG

107

Whien, pending- a contest, a relinquishment of h’s entry
is filed by the defendant, the register and receiver should
accep^t the rel nquishment as the result of the contest and,
cancelling the entry thereupon, give proper noitice to tha
contstant, and proceed, as regards the disposing of the land,
as indicated in the above, according to the nature of the
case, whether brought under the third section, act of June
14, 1878, with application to enter, or otherwise; but niuiry
may be properly entertained on the allegation that the re­
linquishment was in fact an independent transaction and
not the result of the content, independent of the time wh n
the relinquiishment is filed, being before or after the hear­
ing.
Contests of homestead entries on ground of abandon­
ment can not be brought until after the exp'raJtion of six
months from date of entry.

cation to the Commissioner of the General Land Office as
soon as he shall ascertain it, and before the hearing of s jch
cause who thereupon, with the approval of the Secretary
of the Interior, shall designate some other reg ster, receive/,
or special agent of the Land Department to act In the p'acj
of the disqualified officer, and the same authority is confer­
red on the officer so designated which such register or
receiver would otherwise have possessed to act in such case.

©PBOUDATIVE AND COLLUSIVE

CONTEST'S.

No preference right of entry can be acquired through a
contest which is shown by the eVdence not to have be^n
prosecuted in good faith. (Dayton v. Dayton, 6 L. D., 164.)
According to the Av'ell-settled interpre»* a"Ion of the home­
stead law in this Department, residence upon a hom s'^ead
is not required as a pre-requisite to a part enit, beyond the
period of five years, and it is held that after a patent has
been earned by five years’ actual residence and imp ovement, a homestead entry can nbt be successfully contesited
because of a change of residence therefrom wi'hin the statuory period for the submission of final proof. (Lawrence
V. Phillips, 6 L. D., 140; Day's v. Fairbanks, 9 L. D., 530.)
The period within which final homestead proof may bo
submitted was exitended to eight years from date of entry
by the act of July 26, 1894 (28 Stat. L., 123,) as to all en­
tries then existing.
DISQUALIiFICATION OF LOCAL OFFICERS.

The act of Congress of January 11, 1894 (28 Start. L., 26,)
enacts as follows, viz;
That no regis^ter or receiver shall receive evidence in,
hear, or determine any cause pending in any distr'crt land
office in which cause he is interested, directlv or indirectly,
or has been of counsel, or where he is related to any of the
parties in interest by consanguinity or affinity with'n the
fourth degree, computing by the rules adopted by the com
mon law.
ISec. 2. That it shall be the duty of every register oi
receiver so disqualified to report the fact of his disqualifi-

Contest Affidavit.
(Form 4.)
............................... County of..........................................
Personally appeared before me ............................................................
of .......................................... County, to<tate of........................ who upon
his' oath says that he is well acquainted with the .ract of land
embraced in. the homestead entry of.......................................................
No.......................... made ......................... , 19.... at U. S. Land Oft ce at
..................... upon .................... (ITere desci ibe land)....: .........................
and knows the present condition of the sam:; that the sad....
(Here insert, entryman’s name) .................................................................
\.Here insert grounds of contest).... ............................... . ....................
and this the said contestant is ready to prove at such tim?i as
may be named by the register and receiver for a hearing in said
case; and he therefore! asks to be allowed to prove said alle­
gations, and that said homstead entry. No...................... may be
declared cancelled and forfeited to the United States, he, the.
said contestant, paying the expenses of such hearing, or such
portion as may be tax d to him.
Subscribed and sworn to before me this............................ day of

.................................... 19....
CORROBORATING WITNESSES.
Also appeared at the same time- and place...................................
and......................................... wlho, being duly sworn, depose and say
that they are acquainted with the tract described in the with n
affidavit of ........................................ and know from personal obser­
vation that the statements therein made are true.
Subscribed and sworn to before me this............................ day of

................................. 19....

Miscellaneous Provisions.
HEIRS OF A HOMESTEAD SETTLER.

Where a homestead settler dies before the consummation of
his claim, the wlodw, or in case of her death, the heirs may con-

IOS

109

tinue settlement or cultivation, and obtain Tiile upon requisite
proof at the prop r time. If the widow proves up, the title passes
to hctr; if she dies before proving up and the he rs make the
proof, the title will vest in them. Sec. 2291, Rev. Stat.
»v^here both parents die, leaving infant children, the home­
stead may be sold for cash for thei benefit of such children;
and the purchaser will receive title from the United States, or
residience or cultivation may continue for the pr scribed
period, when the patent will issue to the children.
(Sec. 2292,
Rev. Stat.
Upon the death of a homesteader who leaves no widow, but
both adult and minor heirs, the right to perfect entry passes
alike to all the heirs. See Bernier v. Bern'er, (147 J. S. 242.)
A homestead right cannot be devised away from a widow
or mi?nor children.
In case of the death of a person after having entered a
hiomestead, the failure of the widow, children, or devisee of the
deceaeed to take up residence on the land within si’x moftiths
after the entry, or otherwise to fulfill the demands of the letter
of the law as to residence, will not necessarily subject the entry
to forfeiture on the ground of abandonment. If the land
cultivated in good faith the law will be considered as having
belen substantially comp’ield with. (Tauer vs. The Heirs of
AValter A. Mann, 4 U. D. 433.)

only to homestead settlers, provides that in case such settler
has been prevented bj'' climatic reasons from establishing
actual residence upon his homestead within six months from
date of entry, the Commissioner of the General Land Office
may, in his discretion, allow him twelve months from that
date in which to commence his residence..
In such case the settler must, on final proof, file with the
register and receiver his affidavit, du y corroborated by two
credible witnesses, setting forth in detail the storms, floods,
b ockades by snow or ice, or other hindrances dependent uipon
cLmatic causes which rendered it impossible for him to commence residence within six months. A claimant can not be a’liowed twelve months from entry when it can be shown
that be might have establisihed his residence on the land at
an earlier day; and a failure to exercise proper diligence in
so doing as soon as possible after the climatic hindrances dis­
appear will imperil his entry in case of a contest.

HOMESTEAD CLAIMANTS WHO BECOME INSANE.
The rights of a hiomestead claimant who has become Insane
may, under Act of June 8, 1880, be proved up and his c’aim per­
fected by any person duly authorized tO' act for him during his
disability. 21 Stat. L. 166.
Such claim must have been initiated in full compTanCe with
law, by a person who was a citizen or who had declared his
intention of becoming a citizen, and was in other respects duly
qualified.
The party for whose benefit the act shall be Invoked must
have become insane subs quently to the initiation of his claim.
Claimant must have complied with the law up to th-^ time
of becoming insane: and proof of compliance wl 1 be r^'quired
to cover only the period pr’or to such insanity: but the act wl 1
not be construed to cure’ a failure to comply with the law when
the failure occurred prior to such insanity.
The final proof must be made by a party whose authority to
act for .the insane person during hiis disability shall be dui>
certified under seal of the proper probate court.

CLIMATIC HINDRANCES.
The proviso annexed to section 2297, Revisied Statutes, by
amendatory act of March 3, 1881 (21 Stat. L. 511), which applies

HOMESTEAD CLAIMS NOT LIABLE FOR A DEBT AND
NOT SALABLE.

No lands acquired under the provis ons of the homesteau
laws are liabie for the satisfaction of any debt contracted prior
to the issue of patent. Sec. 2296, Rev. Stat.
The sale of a homestead claim by the settler to another
party before becoming entitled to a patent vests no title or
equities in the purchaser as against the United States. In
making final proof, the settler is by law required to swear that
no part of the land has been alienated except for church, ceme­
tery, or school purposes, or the right of way of railroads, canals,
or ditches for irrigation or drainage across it. Sec. 2288, Rev.
Stat., as amended by sec. 3 of the act of March 3, 1891, 26 Stat.
L. 1095. •
INDIAN HOMESTEADS.
By the provisions of the Indian appropriation act of Julv
4, 1884, 23 Stat. L. 96, any Indians who might then be located
on public lands, or should thereafter so locate, may avail
themselves of the privileges of the homestead laws as fully
and to the same extent as citizens of the United States, but
without payment of fees or commissions on account of such
entries or proofs.
,
Inaian homesteads can not be commuted and are not subject
to sa’e, assignment, lease, or incumbrance. All patents issued
for Indian homesteads under this act must be of the legal effect
and decilaire that the United States does and will hold the land
thus entered for the period of twenty-five years in trust for
the sole use and benefit of the Indian by whom such entry shall

lio
have bean made, or, in caste of his decease, of his widow and
heirs, according to the laws of the state or territory wire re sucn
land is located, and that at the expiration of said p riod the
Un t d States will convey the same by patent to said Indian
or his widows and heirs, as aforesaid, in fee, idischarged of
said trust and free from all charge or incumbrance what­
soever.
When any Indian applies to enter land under said act he
will be allowed to do so without payment of fees or commis­
sions, but will be requ red to furnish a certificate from the
agent of the tribe to which he belongs that he is an Indian
of the age of 21 ye'ars, or the head of a family, and not the
subject of any fordgn country.

HEIRS, EXECUTORS AND ADMINISTRATORS.

Where anplication is made by heirs, satisfactory proof of
heirship is required. This must be the best evidence that can be
obta'ned, and must show that the parti s applying are the heirs
and the only heirs of the deceased. Where application is made
by executors, a certificate of executorship from the probate
court must accompany the application.
Where apnlication is made by administrators, the original
or a certified copy of the letters of administration must be
furnished.
CITIZENSHIP AND NATURAUIZATION.
23. Parties should in all cases of application to make entry
and. in, final proof state distinctly whether they are native-born
or naturalized citizens.
If naturallizcid, evidence of naturalizaitien ishould be filed with the original entry appl cation^ If
not naturalized, evidence of declaration of .’intenftioni should
be filed at the 'time the first entry or application Is made.
The certification of naturaliizatiion papers or other court
records should be received only iwhen made und r the hand and
seal of the clerk of the court in which such ipapers appear cf
record, but where a judicial record is shown to have existed
and is now lost or destroyed proof of the same may be made
by secondary evidence, in accordancs with the rues of ev dence
governing such proof.

NATURA DIZ ATION.
Under Section 2289 of the Revised Statutes, any person who
is a citizen of the United States, or who has filed n s declara­
tion of intention to become such, shall be entitled to enter land
under the homestead law.
No one, however, can make final
proof who has not become a citizen of the United States under
our naturalization laws.
Undetr Section 2172 of the Revisied Statutes, it is provided

■I

111
that the children of persons who have been du y naturalized
under any law of the United States, being under the age of
21 years at the time of the naturalizafon of their parents, shall,
îf dwelling in the United States, be considered as cit zens
thereof.
Persons coming under this provision and desiring to
make homestead entry should pr sent with their application
a copy of their father’s naturalization papers, with an affidavit
identifying the applicant as the Child of the person natura ized.
See 8 L. D., p. 60; 11 L. D. 578.
In both of these cas s it was he'd that the natura ization
of the father, during the minority of the son, inures to the
benefit of the latter and makes him a citizen and qualified to
make homestead entrv.
NECESSARY TIMBER.
Homes't ad or pre-emption claimants who have made Iona
fide settlements upon public land, and who are I vinig upon,
cultivating, and improving the same, in accordance with law
and the rules and regulatiions of this department, wiih the ntent'on of acquiring title thereof, are permitted to cut ard remove,
or cause to he cut and removed, from the portion thereof to be
c’eared for cultivât'on, so much timber as Is actual’y nee ssary
for that purpose, or for buildings, fences and other improve­
ments on the land entered.
In clearing for cultivatioui, should there
surplus of timbei
over what is needed for the purposes above specified, the entryman may sell or dispose of such surplus; bur it is not arowahle
to denude the land of i'ts timber for the purpose of sale or
speculation before the tit’e has been conveyed to him by patent.
The abandonment to settlement clai m after the t mb r has
been removed is presumptive evidence'that the claim was man «,
for the primary purpose of obtaining timber.
Squatters upon public landsi have no right to cut timber
amended by add’Ug theireito the following;
Unmarried Women^June 6, 1900 Congress passed the fol­
lowing act: “Be it enacted by the Senate and House of Rep­
resentatives of 'the United State» of Amer'ca 'n Congress As­
sembled, That the third section ef the. Act of Coirgress ap­
proved May fourteenth, eighteen hundred and eighty, entitl a,
‘An Act tor the reilhf of siettler» on the public lands,’ be
by adding there'to the following:
“Where an unmarried woman who has heretofore settled,
or may hereafter sett’e. upon a tract of public land, improved,
established and maintained a bona fid'^*' res dence thereon, with
the intention of appropriating the same for a home, subec't to
tbe homestead law, and has married, or shall hereafter marry,
before making entry of said land, or before mak ng app icatlon
to enter said land, she shall not on account of her marriage

112
forfeit her right to make entry and ireceive patent for the land:
Provided, That she doete not abandon her residence on said
land, and is otherwise qualified to make homestead entry;
Provided, 'further, That the man whom ¡She marries is not, at
the time of their marriage, claiming a separate tract of .and
under the homestead law.
‘ Thait this Act shall be applicable to all unpatented lands
claimed by such entrywoman at the date of passage.”

r

113
practicable. The deviations are found generally on the north
and west sides of townships, where the smallest subdivisions
may contain more or less than forty acres.

TOWNSHIP PLAT.

.frange.......

fownsfifp.___ _
__

..... County..

Public Land Surveys.
1

The public surveys are made upon the rectangular sustem,
by which the land is laid out like the squares on a checker
board. A line, called the BASE-LINE, is first run oif 'upon the
ground from east to west. At some convenient po nt a line,
called a PRINCIPAL MERIDIAN, is run at right angles with
the base line. Beginning at the intersection of these two lines,
the surveyor lays off other lands, called TOWNSHIP LINES,
at intervals of six miles, along the meridian and base-lines and
at rightangles with them. This d vides 'the land into TOWN­
SHIPS six mi es square.
The township is then divided in a similar manner by running
lines at right angles with the townshp lines, at intervals of
one miile. These are called SECTION-LINES, and d vid 3' each
township into SECTIONS one mile square and containing 643
acres. No further sub-diivistonal lines are run by the govern
ment surveyors, but a post, call d a quarter-secton post, is
placed on the line, half way between the corners of the sections,
and, by connecting these posts, the section Is d vided into fou»
quarters, called the northeast quarter, the northwest quarter,
the southeast quarter, and the southwest quarter, each con­
taining 160 acres.
Each quarter may be further divided into four quarters by
running lines half way between the quarter section lines. The «
smallest subdivisions contain 40 acres each, and are designa ed
as the northeast quarter of the northeast quarter, the northwest
quarter of the southeast quarter, etc.
Some variations from the above plan arise through errors
in making the survey, but this system is followed as closely as

J

[

J

7

J

y
»7

—1

Q
o-

j2

-4- 1
X

1
1

2-

u
Xn
1

1 c

0

I

A

1
—1

3-

Q2

o

2

r
z 3_

2¡8

u

c

n
X0

o7

ÍJ

q

qA

■"C

J

"1 7

1n
w

n
u

-

V

1f

2

-S

5-

I
-3 h-

Q'a-

q

U"

»

How to

Find

Your

Land,—The following extract from

Oopp’s Settler’s Guidei will explain further the system of
surveys:
The sections in each township are numbered, beginning in
the northeast corner, from 1 to 36 inclusive, as shown in the
township plat on this page. Sections 16 andi 36 are called
school sections, and, if agricultural, belong to the state, or

T"

i

114
are reserveld dn a territory for sohool piurposes. They can
on.’y be boug’ht at the state land office, unless they contain
minerals or were settl .d upon prior to survey, when they are
sold at the United States land office. The sectionsi 'om the
northern and western boundaries of a township are fractional,
i. e., they do not contain 640 acr J3. The small fragments ere
called lots, and are numbered from one upward; in each s:ictSon. Freauently sections in the interior are fractional on
account of lakes, reservatilons and other causes.

How Townships are Numbered.—A tier of townsliips run­

ning north and south is called a range, and each range is
numbered as it is east or west of the principal meridian.
Each township is also numbered as it is north or south of
the base line.
5 N means a fifth township north of the base line. 2 S
means a section township south of the base line. 5 E means
township in range 5 east of the principal meridian. 2 W
means a township in range 2 west of the principal meridian.
Hence the township in the extreme northeast corner of the
diagram is township 5 north of range 8 east. The principal
meridian is named, if otherwise there is a possibility of
mistake.

a

TOWNSHIP CORNER MARKED BY POST.

115

A-

i

f

The posts must be set in the earth by digging a hole to
admit them two feet deep, and must be very securely
rammed in with earth, and also with stone, if any be found
at hand. The portion of the post which extends above the
earth must be squared off sufficiently smooth to admit of re­
ceiving the marks thereon, to be made with appropriate
marking irons, indicating what it stands for. Thus the
sides of township corner posts should square at least four
inches (the post itself being Jive inches in diameter,) and
must protrude two feet at least above the ground; the sides
of section corner posts must be square at least three inches (the
post itself being four inches in diameter,) and protrude two
feet from the ground; and the quarter section corner posts and
meander corner posts must be three inches wide, presenting
flattened surfaces and protruding two feet from the ground.
How to Tell Corners.—The following is from the Manual
of Instructions on Public Surveys:

Where a township post is a corner common to four town­
ships, it is to he set in the earth diagonally.
One each surface of the post is to he marked the number
of the particular township and its range, which it faces.
Thus, if the post be a common boundary to four townships,
say one and two, south of the base line, of range one, west of
the meridian; also, to township one and two, south of the
base line, of range two, west of the meridian, is to be
marked thus:
(R. iW. )
( iW. 1
vV.
From N. to E. •/ T. iS. ?• From E. to S. -! 2S.
( S. 31. )
I 6.
( 2W. I
(
2W. )
■b" i
From N. to W. •<
iS. !■ From W.
36. )
These marks are not only to be distinctly hut neatly cut
into the wood, at least the eighth of an inch deep; and to
make them yet more conspicuous to the eye of the anxious
explorer, the deputy must apply to all of them a streak of
red chalk.

I

Establishing Corners by Means of Posts.—Township, sec­

tional or mile corners, and quarter sectional or half mile
corners will be perpetuated by planting a post at the place ■
of the corner, to be formed of the most durable wood of the
forest at hand.

IIG

117

Section or mile-posts, being corners of sections, and where
such are common to four sections, are to be set diagonally in
the earth (in the manner provided for township corner
posts,) and on each side of the squared surfaces (made
smooth, as aforesaid, to receive the marks) is to be marked
the appropriate number of the particular one of the four
sections^ respectively, which such side faces; also, on one
side thereof are to be marked the numbers of its township and
range; and to make such marks yet more conspicicous in
manner aforesaid, a streak of red chalk is to be applied.
Opposite is represented a corner mound common to two
townships or two sections only.
In every township, subdivided into thirty-six sections,
there are twenty-five interior section corners, each of which
will be common to four sections.
A quarter section, or half-mile post is to have no other
mark on it than S., to indicate what it stands for.

of the township must indicate by a number of notches^n
each of the four corners, directed to the cardinal points,
the corresponding number of miles that it stands from the
outlines of the township, but only on two edges in surveys
made since 1864. The four sides of the post will indicate
the number of the section they respectively face.
Should a tree be found at the place of any corner, will be
marked and notched as aforesaid, and answer for the cor­
ner, in lieu of a post, the kind of tree and its diameter be­
ing given in the field notes.

'

SECTION CORNERS.

.

QUARTER SECTION CORNER.

Marked by post, mound and pits.

Bearing Trees.—The position of all corner posts, or corner
trees of whatever description that may be established,is to be
evidenced in the following manner, viz: From such post oi
tree the course must be taken and the distance measured to
two or more adjacent trees, in opposite directions, as nearly
as may be, and these are called “bearing trees.” Such are
t® be distinguished by a large smooth blaze, with a notch at
its lower end facing the corner, and in the blaze is to be
marked the number of the range, township and section; but
at quarter-section corners nothing but S need be marked.
The letters B. T. (bearing trees) are also to be marked upon
a smaller blaze, directly under the large one, and as near
the ground as practicable.

Marked by post, mound and pit®.

Notching Corner Posts.—Township corner posts, common
to four townships^ are to be notched with six notches on
each of the four angles of the squared part set to the car­
dinal points.
All mile posts on township lines must have as many
notches on them, on two opposite angles thereof, as they
are miles distant form the township corners, respectively.
Each of the posts at the corners of sections in the interior

_

o

At all township corners, and at all section corners, on

118

range or township lines, four bearing trees are to be marked
in this manner, one in each of the adjoining sections,
k At interior section corners four trees, one to stand within
each of the four sections to which such corner is common,
are to be marked in manner aforesaid, if such be found.
A tree supplying the place of a corner post is marked in
the manner directed for posts, but if such tree should be a
beech or other smooth bark tree, the marks may be made on
the bark and the tree not notched.
From quarter sections and meander corners two bearing
trees are to be marked, one within each of the adjoining
sections
Corner Stones.—Where it is deemed best to use stones for
boundaries in lieu of posts surveyors may at any corner in­
sert endwise into the ground, to the depth of 7 or 8 inches,
a stone, the number of cubic inches in which shall not be
less than the number contained in a stone fourteen inches
long, twelve inches wide and three inches thick—equal to
504 cubic inches—the edges of which must be set north and
south, on north and south lines, and east and west, on east
and west lines; the dimensions of each stone to be given in
the field notes at the time of establishing the corner, The
kind of stone should also be stated.
SECTION CORNER MARKED BY STONE, MOUND
AND PITS'.

Marking Croner Stones,—Stones at township corners, com­
mon to four townships, must have six notches, cut with a
pick or chisel on each edge or side toward the cardinal
points; and where used as section corners on the range and
township lines, or as section corners in the interibr of a

119

township, they will also be notched to correspond with the
directions given for notching posts similarly situated.
Posts or stones at township corners on the base and
standard lines, and which are common to two townships on
the north side thereof, will have six notches on each of the
west, north, and east sides or edges; and where such stones
or posts are set for corners to two townships south of the
base or standard, six notches will be cut on each of the
west, south and east sides or edges.
Stones when used for quarter section corners will have K
cut on them—on the west side on north and south lines,
and on the north side on east and west lines.
Mounds.—Whenever bearing trees are not found, mounds
of earth, or stone, are to be raised around posts on which
the corners are to be marked in the manner aforesaid.
Wherever a mound of earth is adopted the same will present
a copical shape.
Prior to piling up the earth to construct a mound, there
is to be dug a spadeful or two of earth from the corner
boundary point, and in the cavity so formed is to be de­
posited a marked stone, or a portion of charcoal (the quan­
tity whereof is to be noted in the field book); or in lieu of
charcoal or marked stone, a charred stake is to be driven
twelve inches down into such center-point; either of these
will be a witness for the future, and whichever is adopted,
the fact is to be noted in the field-book.
When mounds are formed of earth, the spot from which
the earth is taken is called the “pit,” the center of which
ought to be, wherever practicable, at a uniform distance
and in a uniform direction from the center of the mound.
There is to be a “pit” on each side of every mound.
At meander corners (1) the “pit” is to be directly on the
line, eight links further from the water than the mound.
Wherever necessity is found for deviating from these rules
in respect to the “pits,” the course and distance to each is
to.bg. stated in the field books.

121

120

rerpetuity in me mouna is a great desideratum. In form­
ing it with light, alluvial soil, the surveyor may find it neces­
sary to make due allowance for the future settling of the
earth, and thus making the mound more elevated than
would he necessary in a more compact and tenacious soil,
and increasing the base of it. In so doing the relative pro­
portions between the township mound and other mounds
are to be preserved as nearly as may be.
The earth is to be pressed down with the shovel during
the process of piling it up. Mounds are to be covered with
sod, grass side up, where sod is to be had; but, in forming
the moun.I, sod is never to be wrought up with the earth,
because sod decays, and in the process of decomposing it
will cause the mound to become porous, and therefore liable
to premature destruction.
QUARTER SECTION CORNER, MARKED BY STONE,
—

MOUND AND PITS.

Posts in Mounds.—Must show above the top of the mound
ten or twelve inches, and be notched and marked precisely
as they would be for the same corner without the mound.
Witness Mounds to Township or Section Corners.—If a
township or section corner, in a situation where bearing or
witness trees are not found within a reasonable distance
therefrom, shall fall within a ravine, or in any other situa­
tion where the nature of the ground, or the circumstances
of its locality, shall be such as may prevent or prove unfav­
orable to the erection of a mound, you will perpetuate such
corner by selecting, in the immediate vicinity thereof, a
suitable plot of ground as a site for a bearing or witness

T

mouna, and erect thereon a mound of earth Tn The same
manner and conditioned in every respect, with charcoal^
stone, or charred stake, deposited beneath, as before directed;
and measure and state in your field book the distance and
course from the position of the corner stone of the bearing
or witness mound so placed and erected.
Double Corners.—Double corners are to be nowhere except
on the base or standard lines, whereon are to appear both
the corners which mark the intersections of the lines which
close thereon, and those from which the surveys start on
the north. On these lines, and at the time of running the
same, the township, section and quarter section corners are
to be planted, and each of these is a corner common to tivo
(whether township or section corners,) on the north side of
the line, and must be so marked.
The corners which are established on the standard par­
allel, at the time of running it, are to be known as ^'stand­
ard comers,” and, in addition to all the ordinary marks (as
herein described), they will be marked with the letters S.
C. Closing’ corners will be marked vnth the letters^ C. C. in
addition to the marks.
You will recollect that the corners (whether section or town­
ship coriners), are not to be planted diagonally, like those which
are common to four, but with the flat sides facing the card.nal
pointisi, and on which the notches' and marks are made as usual.
This, it will be perceived, will serve yet more fully to distin­
guish the standard parallels from other lines.

Instructiohs for Surveys Made Since
June 1, 1 864.
(By instructions to surveyors-general, dated June 1, 1864, the
Surveying Manual was modifled in the fot owing particulars:

Posts in Mounds.—All posts in mounds will hereafter be
planted or driven into the ground to a depth of twelve inches,
at the precise corner point; and the charcoal, charred stake.

123

123

or marked stone required in the Manual will be d ^posited
twelve inches below the surface, agranst the nor'th s’de of the
po^t when the deputy is running north, and against itihle west
side when the deputy is running we.-t, etc.
Totwnship mounds will be five feet in d ameter at their base,
and two and a half feet in p trpendicu'ar height. Posts in
townsh’p mounds are therefore required to be four and a ha f
feet in length, so as to a low twelve inches to project above the
mound.
Mounds at section, quarter-section and meander comers
will be four and a half feet in diameter at their base, and two
feet in perpendicular heighth, the posts being four feet in
length, leaving twelve inches to project above the mound.
Pits should be of un’form dimensions.
Th?i pits for a
township mound will be eighteen inches wide, two feet in
length, and at least twelve inches deep, located six feet
from the posts. At section corners the pits will be eighteen
inches square, and not less than twelve inches in depth.
At township corners common to four townsh'ps, the pits
will be dug on the lines and lengthwise to them. On base and
standard lines, where the corners are common to only two
townships or quarter sections, three pits only w 11 be dug—two
in line on either side of the post, and one on the Ine north
or south of the corner, as the case may be. By this means 'the
standard and closing corners will be readily distinguished from
each other.

stakes to be marked in the manner heretofore prescribed for
marking corner posts, and to be driven one foot in the ground.
At corners common to foUr townships, the stakes are lu be
driven in the pits east of the mound, and at corners common, to
four sections the stakes are to be driven in the pit southeast
of the mound, and at corners common to two townships or
sections they are to be driven in the pit east of the cornet.
Th's requ rement does not apply to quarter section corners.

Notching Corner Section Posts,—Post or stones at the
corners of sect ons in the interior of townships will have as
many notches on the south and east edges as they are miles
from the south and east boundaries of the township instead
of being notched on all four edges, as directed in the; Manual.
Regions Remote From Timber and Stone.—By circular of
July 24, 1873, surveys of such lands are marked thus: In addi­
tion to the manner of establishing corners of public survey.s by
mounds of earth with deposits at the point of the corner, deputy
surveyors are required to drive in the center of one of the pits
at etaoh siection and township corner sawied or hewed sitake«
not less than two inches square and two feet in length; said

CORNERS IN REGIONS REMOTE FROM TIMBER AND
STONE.

Bearing Trees,—Wher a tree not less than two and a half
inches in diameter can be found for a bearing tree within three
hundred links of the corner, it shou'd be preferred, to the pit.

Meandering Navigable Streams—Standing with the face
looking down stream, the hank on the left hand is termed
the “left hank,” and that on the right hand the “right
bank.” These terms are used to distinguish the two banks
of a river or stream.
Both banks of navigable rivers are meandered by taking
the courses and distances of their windingb. At those
points where either the township or section lines intersect
the banks of a navigable stream, posts, or, where neces­
sary, mounds of earth or stone, are established, called
“meander corners.”
ILLUSTRATION.

—

Suppose the settler finds a section corner marked by either
a post or stone as shown above. What are the numbers of the
adjoining land? By examining the east corner of the post you

124
will see notches. Every niotch represents one mile from the
east line of the township. This post has three notches, and by
turning to the township plat you will see that it would be on
the line running north and south between sections 33 and 34.
As there are four notches on the! south side you count up the
line between 33 and 34 for four miles, you wou d then have the
exact location of this post in the townsh'p, at the corner be­
tween sections 9, 10 15 and 16. You could locate on either oi
these except 16 which is school land.

Act May 14, 1880.
Relinquishment.—Beit enacted by the Senate and House of
Representatives of the United States of America in Congress as­
sembled: That when a pre-emption, homestead, or timber
culture claimant s" all file a written relinquishment of his
claim in the local land office, the land covered by such
claim shall be held as open to settlement, and entry with­
out further action on the part of the commissioner of the
General Land Office.
Preference Right. Se c . 2. In all cases where «ay person
has contested, paid the land office fees, and procured the can­
cellation of any pre-emption, homestead, or timber culture
entry, he shall be notified by the register of the land office
of the district in which such land is situated of such cancel­
lation, and shall be allowed thirty days from date of sue!
notice to enter said lands: Provided: That said registei
shall be entitled to a fee of one dollar for the giving of sucl
notice, to be paid by the contestaLut, and not to be reported.
Heirs.—By act approved July 26,1892, section 2 of the act
of May 14, 1880, was amended by adding the following pro­
viso, to-wit:
Provided further, That should any such person who has
initiated a contest die before the final determination of the
same, said contest shall not abate by reason thereof, but
his heirs who are citizens of the United States, may con­
tinue the prosecution under such rules and regulations as
the Secretary of the Interior may prescribe, and said heirs
shall be entitled to the same rights under this act that con­
testant would have had if his death had not occurred.

Section 3 of this act has been Quoted heretofore under the
head of settlement.

125

Act August 30, 1890i
By act of above date one cannot acquire title to more than
320 acres, under all of the public land laws. The following
is the clause of the statute applicable:
“No person who shall, after the passage of this act, enter
upon any of the public lands with a view to occupation, or
settlement under any of the land laws shall be permitted
to acquire title to more than three hundred and twenty
acres in the aggregate, under all of said laws, but this lim­
itation shall not operate to curtail the right of any person
who has heretofore made entry or settlement on the public
lands, or whose occupation, entry, or settlement is vali­
dated by this act: Provided, That in all patents for lands
hereafter taken up under any of the land laws of the United
States or on entries or claims validated by this act, west of
the one hundredth meridian, it shall be expressed that there
is reserved from the lands in said patent described a right
of way thereon for ditches or canals constructed by the au­
thority of the United States.” (Gen. Cir. 1892, page 71.)

Act March 3,1891.
Congress passed an important act the above date, relat­
ing to the public domain, amending various provisions of
the land laws. The important amendments to the home­
stead law have been quoted in the first part of this work.
We give below only a synopsis, as we have heretofore
quoted all these acts so far as they apply to Oklahoma
lands:
Section 1 of said act repeals the Timber Culture, but pre­
serves existing rights and provides that parties who have
in good faith tried to comply with the Timber Culture law,
and who are resident of the state or territory where land
is situated, may commute said entries by paying $1.25 per
acre.
'Section 2 provides modificaition of the desert land act,

J

12:
126

providing fully for actual reclamation’bi the land eiTtefed,
and preventing speculative accumulation of the land, with
a saving of all rights under existing entries.
Section 3 enlarges section 2288, Revised Statutes, by in­
cluding reservoirs, or ditches for irrigating purposes.
Section 4 repeals the pre-emption laws, with a modifica­
tion of the homestead law, and with provisions more strict
as to proofs at entry and all final proofs, extending the
commutation from six to fourteen months.
Sections 7 and 8 provide details as to final action in the
Interior Department on final entries, and provide limita­
tions as to contests, and suits to cancel patents, fixing the
latter at five years as to patents now issued and six years
as to future ones, and provisions as to timber trespasses.
Section 9 prohibits offering of public lands at public sale
hereafter, thus preventing private or cash entries.
Sections 10 to 17 relate to lands in Alaska, for their acqui­
sition for manufacturing and commercial purposes and for
town sites.
Section 17 allows mineral entries, in addition to the max­
imum allowance of 320 acres allowed by existing law.
Sections 18, 19, 20 and 21 relate to ditches reservoirs, and
providing for their construction.
Section 23 cures defects in the titles of settlers on certain
former Indian lands caused by different rulings of the De­
partment of the Interior.
Section 24 authorizes the president to set apart trust re­
serves, where to preserve timber he shall deem it advisable.

Iowa and Sac and Fox Lands.
Act to Ratify and Confirm Agreements with Sac and Fox
Nation and Iowa Tribe of Indians. Approved Feb. 13,
1891.
Sec. 7. That whenever any of the lands acquired by the
igreements of this act ratified and confirmed, shall by op­
eration ^pf law or j)roclamation of the lTesident ,of th§

United States be open to settlement, they shall be disposeo
□f to actual settlers only, under the provisions of the home­
stead laws, except section twenty-three hundred and one
(2301) which shall not apply. Provided, however, that each
settler under and in accordance with the provisions of said
Homestead laws, shall before receiving a patent for his
homestead, pay to the United States for the land so taken
by him, in addition to thè fees provided by law the sum of
one dollar and twenty-five cents for each acre thereof, and
such person, having complied with all the laws relating to
such homestead settlement, may at his option receive a pat­
ent therefor at the expiration of twelve months from the
date of settlement upon said homestead and any person oth­
erwise qualified who has attempted to, but for any cause
failed to secure a title in fee to a homestead under existing
law, or who made entry under what is known as the com­
muted provision of the homestead law, shall be qualified to
make a homestead entry upon any of said lands.

Oklahoma Proper.
Act of Mevreh 2, 1889, entitled ''An act maldng approjjriations
for the current and contingent expenses of the Indian depart­
ment, and for fulfilling treaty stipulations with various Indian
tribes for ttie year ending June 30,1890, and for other nurpoaesA^
Oklahoma Proper.—What is known as Oklahoma proper,
being the lands opened to settlement at noon, April 22.
1889, was opened under the sections hereinafter quoted,
Section 13 of said act,by act of March B, 1893, is made applica­
ble to the Cherokee Outlet. The sections are as follows:
Se c t io n 13. That the lands acquired by the United States
under said agreement shall be a part of the public domain,
to be disposed of only as herein provided, and sections six­
teen and thirty-six of each township, whether surveyed or
unsurveyed, are hereby reserved for the use and benefit of
the public schools to be established within the limits of
said lands under such conditions and regulations as may be
hereafter enacted by congress.
That the lands acquired by conveyance from the Semi­
nole Indians hereunder, except the sixteenth and thirtysixth sections, shall be disposed of to actual settlers under
the homestead laws only, except as herein otherwise pro­
vid edlexcept lhal section two thousand three hundred and

128

one of the Kevisea Statutes shall not apply:; -Ana provtaeS
further^ That any person who having attempted to, but for
any cause failed, to secure a title in fee to a homestead un­
der existing laws, or who made entry under what Is known
as the commuted provision of the homestead laws, shall be
qualified to make a homestead entry upon said lands: And
provided further^ That the rights of honorably discharged
Union soldiers and sailors in the late civil war as defined
and described in sections twenty-three hundred and four
and twenty-three hundred and five of the Revised Statutes
shall not be abridged: And provided further^ That each en­
try shall be in square form as nearly as practicable, and no
person be permitted to enter more than on© quarter section
thereof, but until said lands are opened for settlement by
proclamation of the president, no person shall be permitted
to enter upon and occupy the same, and no person violating
this provision shall ever be permitted to enter any of said
lands or acquire any right thereto.
The Secretary of the Interior may, after said proclama­
tion and not before, permit entry of said lands for town
sites, under sections twenty-three hundred and eighty-«
seven and twenty-three hundred and eighty-eight of the
Revised Statutes, but no such entry shall embrace more
than one-half section of land.
That all the foregoing provisions with reference to lands
to be acquired from the Seminole Indians, including the
provisions pertaining to forfeiture, shall apply to and rcgu.ate the disposal of the lands acquired from the Muskogee,
Creek Indians by articles of cession and agreement made
and concluded at the city of Washington on the nineteenth
day of January, in the year of our Lord eighteen hundred
and eighty-nine.
Section 14. The president is hereby authorized to appoint
three commissioners, not more than two of whom shall be
members of the same political party, to negotiate with the
Cherokee Indians and with all other Indians owning or
claiming lands lying west of the ninety-sixth degree of
longitude in the Indian Territory, for the cession to the
United States of all their title, claim, or interest of every
kind or character in and to said lands, and any and all
agreements resulting from such negotiations shall be re­
ported to the president and by him to congress at the next
session, and to the council or councils of the nation or na­
tions, tribe or tribes,agreeing to the same for ratification,
and for this purpose the sum of twenty-five thousand dol-

i

129

laTs, "or as mucTi“ thereoT 'as~may "be neces^sary, Is TTereby
appropriated, to he immediately available. Provided, That
said commission is further authorized to submit to
the Cherokee Nation the proposition that said nation
shall cede to the United States in the manner and with
the effect aforesaid, all the rights of said nation in said
lands upon the same terms as to payment as is pro­
vided in the agreement made with the Creek Indians of
date of January nineteenth, eighteen hundred and eightynine, and ratified by the present congress, and if said
Cherokee Nation shall accept, and by act of its legislative
authority duly passed, ratify the same, the said lands shall
thereupon become a part of the public domain for the pur­
pose of such disposition as is herein provided, and the
president is authorized as soon thereafter as he may deem
advisable, by proclamation open said lands to settlement in
the same manner and to the same effect, as in this act pro­
vided concerning the lands acquired from said Creek In­
dians ; but until said lands are opened for settlement by
proclamation of the president, no person shall be permitted
to enter upon and occupy the same, and no person violating
this provision shall be permitted to enter any of said lands
or acquire any right thereto.
President’s Proclamation.—Under section 13 of this act, the
president by proclamation dated March 23, 1889, declared
the lands, known as Oklahoma proper, opened to settle­
ment and entry at noon April 22, 1889.
The ** Sooner " Clause^The President closed his proclama­
tion in the folilowiniff language:

“TFoming is hereby again expressly given that no per­
son entering upon and occupying said lands before said
hour of twelve o’clock, noon, of the twenty-second day of
April, A. D,, eighteen hundred and eighty-nine, hereinbe­
fore fixed, will ever be permitted to enter any of said lands
or acquire any rights thereto, and that the officers of the
United States will be required to strictly enforce the pro­
vision of the act of congress to the above effect.”

130

Oklahoma Organic Act.
(The Part Relating to Lands and Townsites.)
AN ACT to provide a temporary government fot the Terri­
tory of Oklahoma, to enlarge the jurisdiction of the
United States Court in the Indian Territory, and f jr
other purposes. (Approved May 2, 1890.)
{This act is applicable to the Cherokee Outlet.}
Be it enacted by the Senate and House of Representatives of
the United States of America, in Congress assembled.

******
That sections numbered sixteen
and thirty-six in each township in said Territory shall be,
and the same are hereby reserved for the purpose of being
applied to the public schools of the state or states hereafter
to be erected out of the same. In all cases where sections
sixteen and thirty-six, or either of them, are occupied by
actual settlers prior to survey thereof, the county commis­
sioners of the counties in which such sections are so occu­
pied are authorized to locate other lands to an equal
amount, in sections or fractional sections, as the case may
be, within their respective counties, in lieu of the sections
so occupied.
Public Land Strip,—All the lands embraced in that portion
of the Territory of Oklahoma known as the Publie Land
Strip shall be open to settlement under the provisions of
the homestead laws of th© United States, except section
twenty-three hundred and one of the Revised Statutes,
which shall not apply! but all actual and bona fide settlers
upon and occupants of the lands in said Public Land Strip
at the time of the passage of this act shall be entitled tc
have preference to and hold the lands upon which they
have settled under the homestead laws of the United States,
by virtue of their settlement and occupancy of said lands,
and they shall be credited with the time they have actually
occupied their homesteads, respectively, not exceeding two
years, on the time required under said laws to perfect title
as homestead settlers.
'
The lands within said Territory of Oklahoma, acquired
by cession of the Muskogee (or Creek) Nation of Indians,
confirmed by act of congress approved March first, eighteen
hundred and eighty-nine, and also the land acquired in
■pursuance .of an asrreement with the Seminole Nation of
School Lands.—Seo . 18,

131

inaians, t>y reicase’and conveyance, dated March, sixteentft,
eighteen hundred and eighty-nine, which may hereafter be
open to settlement, shall be disposed of under the provis­
ions of sections twelve, thirteen and fourteen of the “Act
making appropriations for the current and contingent ex­
penses of the Indian Department, and for fulfilling treaty
stipulations with various Indian tribes for the year ending
June thirtieth, eighteen hundred and ninety, and for other
purposes,” approved March second, eighteen hundred and
eighty-nine, and under section two of an “Act to ratify and
confirm an ag*reement with the Muscogee (or Creek) Nation
of Indians in the Indian Territory, and for other pur­
poses,” approved March first, eighteen hundred and eightynine: provided, however, that each settler under and in ac­
cordance with the provisions of said acts shall, before re­
ceiving a patent for his homestead on the land hereafter
opened t® settlement as aforesaid, pay to the United States
for the land so taken by him, in addition to the fee pro­
vided by law, the sum of one dollar and twenty-five cents
per acre.
Whenever any of the other lands within the territory of
Oklahoma, now occupied by any Indian tribe, shall by
operation of law or proclamation of the president of the
United States, be open to settlement, they shall be dis­
posed of to actual settlers only, under the provisions of the
homestead law, except section twenty-three hundred and
one, of the Revised Statutes of the United States, which
shall not apply: Provided however. That each settler, under
and in accordance with the provisions of said homestead
law, shall before receiving a patent for his homestead pay
to the United states for the land so taken by him, in ad­
dition to the fees provided by law, a sum per acre equal to
the amount which has been or may be paid by the United
States to obtain a relinquishment of the Indian title or in­
terest therein, but in no case shall such payment be less
than one dollar and twenty-five cents per acre. The rights
of honorably discharged soldiers and sailors in the late
civil war, as defined and described in sections twenty-three
hundred and four and twenty-three hundred and five of the
Revised Statutes of the United States, shall not be abridged
except as to such payment. All tracts of land in Okla­
homa Territory which have been set apart for school pur­
poses, to educational societies, or missionary boards at
work among* the Indians, shall not be opened for settle-

133

133

ment, nut are nereoy granted to the respective~eaticational
societies or missionary boards for whose nse the same has
been set apart. No part of the land embraced within the
territory hereby created shall inure to the use and benefit
of any railroad corporation, except the rights of way and
land for stations heretofore granted to certain railroad
corporations. Nor shall any provision of this act or any
act of any officer of the United States, done or performed
under the provision of this act or otherwise, invest any
corporation owning or operating any railroad in the In­
dian Territory, or territory created by this act, with any
land or right to any land in either of said territories, and
this act shall not apply to or effect any land which, upon
any condition on becoming a part of the public domain,
would inure to the benefit of, or become the property of,
any railroad corporation.
Seo . 19. Land Office—Public Land Strip. That portion of
the territory of Oklahoma heretofore known as the Public
Land Strip is hereby declared a public land district, and the
President of the United States is hereby empowered to lo­
cate a land office in said district, at such a place as he shall
select, and to appoint in conformity with existing law a
register and receiver of said land office. He may also,
whenever he shall deem it necessary, establish another ad­
ditional land district within said territory, locate a land
office therein, and in like manner appoint a register and
receiver thereof. And the commissioner of the General
Land Office shall, when directed by the President, cause
the lands within the territory to be properly surveyed and
subdivided where the same has not already been done.
Se c . 20. Land Office Procedure. That the procedure in
applications, entries, contests, adjudications in the Territory
of Oklahoma shall be in form and manner prescribed under
the homestead laws, except as modified by the provisions
of this act and the acts of congress approved March first
and second, eighteen hundred and eighty-nine, heretofore
mentioned, shall be applicable to all entries made in said
territory, but no patent shall be issued to any person who
is not a citizen of the United States at the time of making
final proof.
All persons who shall settle on land in said Territory,
under the provisions of the homestead laws of the United
States, and of this act, shall be required to select the same
in square, form as nearlv, as mav be: and no person who

snail at tne time oe seized in fee simple oi a Hundred and
sixty acres of land in any State or Territory shall hereafter
be entitled to enter land in said Territory of Oklahoma.
The provisions of sections twenty-three hundred and four
and twenty-three hundred and five of the Revised Statutes
of the United States shall, except so far as modified by this
act, apply to all homestead settlements in said Territory.
Commutation—Se c . 21. That any person entitled by law
to take a homestead in said Territory of Oklahoma, who
has already located and filed upon, or shall hereafter locate and file upon a homestead within the limits described
in the President’s proclamation of April first, eighteen hundred and eighty-nine, and under and in pursuance of the
laws applicable to the settlement of the lands opened for
settlement by such proclamation, and who has complied
with all the laws relating to such homestead settlement,
may receive patent therefor at the expiration of twelve
months from date of locating upon said homestead upon
payment to the United States of one dollar and twenty-five
cents per_acre fpr land embraced in such homestead.

i
■

Section 22 is quoted under the h ad of townsites.

Public High ways.—SEC. 23.

That there shall be reserved
public highways four rods w’ide betw’een each section of
land in said Territory, the section lines being the center
of said highways; but no deduction shall be made, where
cash payments are provided for, in the amount to be paid
for each quarter ssction of land by reason of such reserva­
tion. But if the said highway shall be vacated by any
competent authority, the title to the respective strips shall
inure to the then owner of the tract of which it formed a
part by the original survey.
Crime—Se c . 24. That it shall be unlawful for any per­
son, for himself or any company, association or corporation,
to directly or indirectly procure any person to settle upon
any lands opened to settlement in the Territory of Okla­
homa, with intent thereafter of acquiring title thereto;
and any title thus acquired shall be void; and the parties to
such fraudulent settlement shall severally I?© guilty of a
misdemeanor, and shall be punished upon indictment, by
imprisonment not exceeding twelve months, ox* by a fine
not exceeding one thousand dollars, or by both such fine
and imprisonment, in the discretion of the court.
Section 25 refers to Greer county and is Quoted elsewhe/e;
in this book.

i.34

135

Pottawatomie, and Cheyenne and
Arapahoe Lands.

Oklahoma by this and former acts of congress may be lea'e.T
for a period of not exceeding three y.urs for the benefit of the
school fund of said territory by the governor thereof, under
regulations to be prescribed by the Secretary of the Interior.

(Approved March 3, 1891.)
Below are given sections 16, 17 and 18 of act of March 3,
1891, entitled “An Act making appropriations for the cur*
rent expenses of the Indian Department and for fulfilling
treaty stipulations with various Indian tribes, for the year
ending June 30, 1892, and for other purposes.” By referring
to Cherokee Outlet bill it will be seen that the second pro­
viso of section 17, (relating to probate courts and judges
thereof and townsite matters) and all of section 18 (relating
to school lands) ars put in force as to Cherokee Outlet. The
sections are as follows:
Se c . 16. That whenever any of the lands acquired by
either of the three foregoing agreements respecting lancj
in the Indian or Oklahoma Territory, shall by operation of
law or proclamation of the President of the United States
be opened to settlement, they shall be disposed of to actual
settlers only, under the provisions of the homestead and
townsite laws (except section twenty-three hundred and
one of the Revised Statutes of the United States which shall
not apply): Provided^ however^ That each settler on said
lands shall before making a final proof and receiving a cer­
tificate of entry, pay to the United States for the land so
taken by him, in addition to the fees provided by law, and
within five years from the date of the first original entry,
the sum of one dollar and fifty cents per acre, one half of
which shall be paid within two years : But the rights of
honorably discharged Union soldiers and sailors, as defined
in section twenty-three hundred and four (2304) and twentythree hundred and five (2305) of the Revised Statutes of the
United States shall not be abridged except as to the sum to
be paid as aforesaid, and all the lands in Oklahoma are
hereby declared to be agricultural lands and proof of their
non-mineral character shall not be required as a condition
precedent to final entrv.
Section 17, of the above act referring* to county lines, county
seats, tO'wnisites and jurlsldlictiion of 'probate judges, is quoted
elsewhere in this volume under the head of Townsltes.
Sec. 18. That the school lands reserved in the Territory of

Cherokee Outlet.
The act providing for the open*ng of the Cherokee Outlet
was approved March 3, 1893. The important provisions of said
act are as follows:

The President of the United States is hereby authorized,
at any time within six months after the approval of this
act and the acceptance of the same by the Cherokee Nation
as herein provided, by proclamation, to open to settlement
any or all of the lands not allotted or re^^erved, in the man­
ner provided in section thirteen of the act of Congress ap­
proved March second, eighteen hundred and eighty-nine,
entitled “An act making appropriations for the current and
contingent expenses of the Indian Department and for ful­
filling treaty stipulations with various Indian tribes, for
the year ending June thirtieth, eighteen hundred and
ninety, and for other purposes” (see page 120); and also sub­
ject to the provisions of the act of Congress approved May
second, eighteen hundred and ninety, entitled “An act to
provide a temporary government for the Territory of Okla­
homa to enlarge the jurisdiction of the United States court
in the Indian Territory, and for other purposes;” (see page
122); also, subject to the second proviso of section seventeen,
the whole of section eighteen of the act of March third,
eighteen hundred and ninety-one, entitled “An act making
appropriations for the current expenses of the Indian
Department, and for fulfilling treaty stipulations with
various Indian tribes, for the year ending June thirtieth,
eighteen hundred and ninety-two, and for other purposes;”
(see page 127); except as to so much of said acts and sections
as may confiict with the provisions of this act. Each set­
tler on the lands so to be opened to settlement as aforesaid
shall, before receiving a patent for his homestead, pay to

136

137

the United States for the lands so taken by him, in addi­
tion to the fees provided by law, the sum of two dollars and
fifty cents per acre for any land east of ninety-seven and
one-half degrees west longitude, the sum of one dollar and
a half per acre for any land between ninety-seven and onehalf degrees west longitude and ninety-eight and one-half
degrees west longitude, and the sum of one dollar per acre
for any land west of ninety-eight and one-half degrees west
longitude, and shall also pay interest upon the amount sc
to be paid for said land from the date of entry to the date
of final payment therefor at the rate of four per centum
per annum.
No person shall be permitted to occupy or enter upon any
of the lands herein referred to, except in the manner pres­
cribed by the proclamation of the President opening the
same to settlement; and any person otherwise occupying
or entering upon any of said lands shall forfeit all right to
acquire any of said lands. The Secretary of the Interior
shall, under the direction of the President, prescribe rules
and regulations, not inconsistent with this act, for the oc­
cupation and settlement of said lands, to be incorporated
in the proclamation of the President, which shall be issued
at least twenty days before the time fixed for the opening
of said lands.
The allottments provided for in the fifth section of said
agreement shall be made without delay by the persons en­
titled thereto, and shall be confirmed by the Secretary of
the Interior before the date when said lands shall be de­
clared open to settlement; and the allottments so made
shall be published by the Secretary of the Interior, for the
protection of proposed settlers. And a sum equal to one
dollar and forty cents per acre for the lands so allotted
shall be deducted from the full amount of the deferred pay­
ments, hereby appropriated for: Provided, That D, W.
Bushyhead, having made permanent or valuable improve­
ments prior to the first day of November, eighteen hun­
dred and ninety-one, on the lands ceded by the said agree­
ment, he shall be authorized to select a quarter section of
the lands ceded thereby, whether reserved or otherwise,
prior to the opening of said lands to public settlement; but
he shall be required to pay for such selection, at the same
rate per acre as other settlers, into the treasury of the
United States in such manner as the Secretary of the In­
terior shall direct.

iiscretion, one or more land offices to be located either in
the lands to be opened, or at some convenient place or
places in the adjoining or organized Territory of Oklahoma;
and to nominate, and by and with the consent of the sen­
ate, to appoint registers and receivers thereof.
The sum of five thousand dollars, or so much thereof as
may be necessary, the same to be immediately available, is
hereby appropriated, out of any money in the treasury not
otherwise appropriated, to pay for the services of the ap­
praisers to be appointed as aforesaid, at a rate not exceed­
ing ten dollars a day for the time actually employed by
each appraiser, and their reasonable expenses, and to en­
able the Commissioner of Indian Affairs, under the direc­
tion of the Secretary of the Interior, to effect the removal
of intruders required by the first paragraph of article two
of said agreement as amended.
The sum of five thousand dollars, or so much thereof as
may be necessary, the same to be immediately available, is
hereby appropriated, out of any money in the treasury not
otherwise appropriated, to enable the Commissioner of In­
dian Affairs, under the direction of the Secretary of the In­
terior, to employ such expert person or persons to properly
render a complete account to the Cherokee Nation of mon­
eys due said nation, as required in the fourth subdivision of
article two of said agreement.

The President of the United States may establish, in hia

TONKAWA AND PAWNEE LANDS.
Sec. 13.
That the lands acauired by the agreiUtente
specified in the two preceding sections are hereby de­
clared to be a part of the public domain.
Section sixteen

and thirty-six in each township, whether surveyed or uusurveyed, are hereby reserved from settlement for the use
and benefit of public schools, as provided in section ten re­
lating to lands acquired from the Cherokee Nation of In­
dians. And the lands so acquired by the agreements speci­
fied in the two preceding sections not so reserved shall be
opened to settlement by proclamation of the President at
the same time and in the manner, and subject to the same
conditions and regulations provided in section ten relating
to the opening of the lands acquired from the Cherokee
Nation of Indians. And each settler on the lands so to be
opened as aforesaid shall, before receiving a patent for his
homestead, pay to the United States for the lands so taken
by him, in addition to the fees provided by law, the sum of
two dollars and.fifty centsjjer acEfiiand shall also pay in-

13S

139

terest upon tne amount so to oe paid Tor said land irom tne
date of entry to the date of final payment at the rate of
four per centum per annum.
Se c . 14. Before any of the aforesaid lands are open to set­
tlement it shall he the duty of the Secretary of the Interior to
divide the same into counties which shall contain as near as
possible not less than five hundred square miles in each
county. In establishing said county lines the Secretary is
hereby auth rized to extend the lines of the counties al­
ready located so as to make the area of said counties equal,
as near as may be, to the area of the counties provided for
in this act: provided, That range one west and ranges one,
two, three, and four east, in township twenty, shall be at­
tached to, and become a part of Payne county. At the first
election for county officers the people of each county may
vote for a name for each county, and the name which re­
ceives the greatest number of votes shall be the name of
such county: provided further. That as soon as the county
lines are designated by the Secretary he shall reserve not
to exceed one-half section of lard in each county, to be lo­
cated for county seat purposes, to be entered under sections
twenty-three hundred and eighty-seven and twenty-three
hundred and eighty-eight of the Revised Statutes, and all
reservations for county seats shall be specified in any
order or proclamation which the President shall make for
the opcniner of the lands to settlement.

inaians'ana in aiscnarge’OT'a' wrirren’ contract maae with
said Indians and recommended by the Secretary of the Inter­
ior, the remainder to be expended for the use of said In­
dians as stipulated in said contract; Provided, That should
said Indians elect to leave any portion of said remaining
balance in the Treasury, the amount so left shall bear in­
terest at the rate of five per cent per annum.” Provided,
That none of the money or interest thereon, which is by
the terms of said agreement to be paid to said Indians,shall
be applied to the payment of any judgment that has been
or may hereafter be rendered under the provisions of the
act of Congress approved March third, eighteen hundred
and ninety-one, entitled “An act to provide for the adjudi­
cation and payment of claims arising from Indian depre­
dations.”
Se c . 2. That for the purpose of making the allotments
and payments provided for in said agreement, including the
preparation of a complete roll of said Indians, the pay and
expenses of a special agent, if the President thinks it neces­
sary to appoint one for the purpose, and the necessary sur­
veys or resurveys, there be, and hereby is,appropriated,out
of any moneys in the treasury not otherwise appropriated,
the sum of five thousand dollars, or so much thereof as may
be necessary.
Se c . 3. That whenever any of the lands, acquired by
this agreement shall, by operation of law or proclamation *
of the President of the United States, be opened to settle­
ment or entry, they shall be disposed of (except sections
sixteen and thirty-six in each township thereof) to actual
settlers only, under the provisions of the homestead and
townsite laws (except section twenty-three hundred and
one, of the Revised Statutes of the United States, which
shall not apply) : Provided, however. That each settler on
said lands shall, before making a final proof and receiving
a certificate of entry, pay the United States for the
land so taken by him, in addition to the fees pro­
vided by law, and within five years from the
date of the first original entry, the sum of one
dollar and fifty cents an acre, one-half of which shall be
paid within two years; but the rights of honorably dis­
charged Union soldiers and sailors, as defined and. described
in sections twenty-three hundred and four and twentythree hundred and five of the Revised Statutes cf the
United States shall not be abridged, except as to the sum

Kickapoo Lands.
A.n Act to ratify and confirm an agreement with the Kicka­
poo Indians in Oklahoma Territory, and to make appro­
priations for carrying the same into efiect.
Be it Enacted by the Senate and House of Representatives oj
the United States of America in Congress assembled,
That said agreement be, and the same hereby is, accept­
ed, ratified, and confirmed,
“That for the purpose of carying into effect the provi­
sions of the foregoing agreement there is hereby appropriat­
ed out of any moneys in the Treasury of the United States
not otherwise appropriated the sum of sixty-four thousand
six hundred and fifty dollars. And after first paying to
John T. Hill the sum of five thousand one hundred and
seventy-two ^dol]urs_for services rendered said Kickapoo

140

141

to be paid as aioresaia. Until ’Sam"!anas are open cO set­
tlement by proclamation of the President of the United
States, no person shall be permitted to enter upon or occu­
py any of said lands; and any person violating this provis­
ion shall never be permitted to make entry of any of said
lands or acquire any title thereto: provided, That any per­
son having attempted to, but for any cause failed to acquire
a title in fee under existing law, or who made entry under
what is known as the commuted provision of the homestead
law, shall be qualified to make homestead entry upon said
lands.
Approved March 3, 1893.

of a family, and though still living shall not take such home­
stead or additional land, within six months from the passage
of this act, any member of such family over the age of twentyone years oth^^r than husband or wife, shall succeed to the r'ght
to take such homestead or additional land for three months
longer, and any such member of the family shall also have
the right to take, as before provided, any excess of additional
land actually cultivated or improved prior to March sixteenth,
eighteen hundred and ninety-six above the amount to which
such head of the family is entitled, not to exceed one hundred
and sixty acres to any one person thus taking as a member
of such family.

GREER COUNTY LANDS.
Chap. 62.—An act to provide for the entry of lands in Greer
County, Oklahoma, to give preference rights to settlers, and
for otner purposes.
Be it enacted by the Senate and House of Representatives ot
the United States of America, in Congress Assembled:
That every person qualified under the homestead laws of
*the United States, who, on March sixteenth, eighteen hundred
and ninety-six, was a bona fide occupant of land within the
territory established as Greer county, Oklahoma, shall be
entitled to continue his occupation of such land with improve­
ments thereon, not exceeding one hundred and sixty acres, and
shall be allowed six months preference right from the passage
of this act within which to initiate his claim thereto, and shall
be entitled to perfect title thereto under the provisions of the
homestead law, upon payment of land office fees only, at the
expiration of five years from the date of entry, except that such
person shall receive credit for all time during which he or
those under whom he claims shall have continuously occupied
the same prior to March sixteenth, eighteen hundred and ninetysix. Every sucn person shall also have the right, for six months
prior to all other persons, to purchase at one dollar an acre,
in five equal annual payments, any additional land of which
he was in actual possession on March sixteenth, eighteen hund­
red and ninety-six, not exceeding one hundred and sixty acres,
which, prior to said date, shall have been cultivated, pur­
chased or improved by him. When any person entitled to a
homestead or additional land, as above provided, is the head

In case of the death of any settler who actually established
residence and made improvement on land in said Greer county
prior to March sixteenth, eighteen hundred and ninety-six, the
entry shall be treated as having accrued at the time the resi­
dence was established, and decisions twenty-two hundred and
ninety-one and twenty-two hundred and ninety-two of the
Revised Statutes shall be applicable thereto.
Any person entitled to such homestead or additional land
shall have the right prior to January first, eighteen hundred
and ninety-seven, from the passage of this act to remove all
crops and improvements he may have on land not taken by him.
Sec. 2. That all land in said county not occupied, culti­
vated, or improved, as provided in the first section hereof,
or not included within the limits of any townsite or reserve,
shall be subject to entry to actual settlers only, under the pro­
vision of the homestead law.
Sec. 3. That the inhabitants of any town located in said
county shall fie entitled to enter the same as a townsite under
the provisions of sections twenty-three hundred and eightyseven, twenty-three hundred and ninety eight and twenty-three
hundred and eighty-nine o. ihe Revised Statutes of the United
States: Provided, That all persons who have made or own
improvements on any town lots in said county, made prior to
March sixteenth, eighteen hundred and ninety-six, shall have
the preference right to enter said lots under the provisions
of this act and of the general townsite laws.
Sec. 4. Sections numbered sixteen and thirty-six are re­
served for school purposes as provided in laws relating to Okla­
homa, and sections thirteen and thirty-three in each township
are reserved for such purposes as the legislature of the future
state of Oklahoma may prescribe. That whenever any of the
lands reserved for school or other purposes under this act, or
under the laws of congress relating to Oklahoma, shall be found
to have been occupied by actual settlers or for townsite pur­
poses or homesteads prior to March sixteenth, eighteen hundred

142

143

and ninety-six, an equal quantity of indemnity lands may be
selected as provided by law.
Sec. 5. That all lands which on March sixteenth, eighteen
hundred and ninety-six, are occupied for church, cemetery,
school, or other charitable or voluntary purposes, not for profit,
not exceeding two acres in each case, shall be patented to the
proper authorities in charge thereof under such rules and
regulations as the Secretary of the Interior shall establish,
upon payment of the Government price therefor, excepting for
school purposes.
Sec. 6. That there shall be a land office established at
Mangum, in said county, upon the passage of this act.
Sec. 7. That the provisions of this act shall apply only to
Greer County, Oklahoma, and that all laws inconsistent with
the provisions of this act, applying to said territory in said
county, are hereby repealed; and all laws authorizing commu­
tations of homesteads in Oklahoma shall apply to Greer county.
Sec. 8. That this act shall take effect from its passage and
apx^roval.
Approved January 18, 1897.
(29 Stat. 490.)

by treaty or agreement from the various Indian tribes, who
have resided or shall hereafter reside upon the tract entered
in good faith for the period required by existing law, shall
be entitled to a patent for the land so entered Upon the pay­
ment to the local land officers of the usual and customary
fees, and no other or further charge of any kind whatsoever
shall be required from such settler to entitle him to a patent
for thei land covered by his entry: Provided, That the right
to commute any such entry and pay for said lands in the
option of any such settler and in the time and at the prices
now fixed by existing laws shall remain in full force and
effecit: Provided, however, That all sum® of monleiy slo re­
leased which if not released would belong to any Indian trib^.
sihalil be paid to such Indian tribe by the United States, and
that in 'the event that the proceeds of the annual sales of th
public lands' shall not be sufficient to meet the payments here­
tofore provided for agricu'tural colleges and experimental sta­
tions by an act of Congress, .approved August thirtieth, eight^ten
hundred and ninety, for the more complete endowment and
support of the colhges for the benefit of agriculture and me­
chanic arts, established under the nrovisiions of an Act of
Congresis, approved July second, eighteen hundred and sixtytwio, such deficiiency shall be paid by the Unîited States:
And
provided, further. That no Tandis shhll be hereiin irucluded on
which (the United States Government had made valuable im­
provements, or lands that have beeu ,soid at public auction
by said government.
Sec. 2. That all acts or parts of acts Inconsistent w th
the provisions of th’s act are h^'reby repealed.

Preference

Right#—The act approved March 1, 1899, provides.
Be ic enacted by the Senate and House of Representatives
of the United States of America in Congress Assembled, That
section one of an act to give preference rights to settlers in
Greer county, Oklahoma Territory, is hereby so amended as
to allow parties who have had the benefit of the homestead
laws of the United States, and who had purchased lands in
Greer county from the state of Texas prior to March six­
teenth, eighteen hundred and ninety-six, to perfect titles to said
lands according to the provisions of section one hereinbefore
mentioned under such regulations as the Commissioner of the
General Band Office may prescribe, and according to the
legal subdivisions of the public surveys, if no adverse rights
have attached: Provided, That no settler shall be permitted
to acquire to exceed three hundred and twenty acres under this
provision.

The Free Homes Act.
Miay 17, 1900, the “Free Home Act” was approved and be­
came a law. The following is the act;
Be it Enacted by the Senate and House of Representatives
of the United States of America in Congress Assembled, That
ah settUrs under the homestead laws of the United States
upon the agricultural public land®, which have already been
opened to settlement, acquired prior to the passage of this act

School LandsUnder all the land laws applicable to Oklahoma, sections
15 and 36 have been reserved for the common public schools.
Under the law, and the proclamation of the president, section
13 wais reserved for university', agricultural colleges, normal
schools, and section 33 for public buildings, and by act of
Juno 6, 1900, sections 13 and 33, in Kiowa, Comanche and
normal schools and public buildings.
These lands may be

leased.
School lands cannot he purchased in Oklahoma. The act
of March 3, 1891, sec. 18, (see ind x) provided:
“That the school lands reserved in the Territory of Oklahoma
by this and former acts of congress may be leased for the
benefit of the school fund of said territory by the governor

144

145

thereof under regulations to be prescribed by the Secretary
of thie Interior.”

In establishing said county lines, the secretary is hereby
authorized to extend the lines of the counties already located
so as to make the areas of sa d counties equal, a® near as
may be, to the areas of the counties provided for in this act.
At the first election for county officers the people of each
county may vote for a name for each counity, and the nami
which receives the greatest number of votes shall be the nams
of each county: Provided, further, That as soon asi the county
lines des’gnated by the secreitary, he shall reserve not to
exceed one-half section of land in each county to be located
near the center of said county, for county-seat purposes, to
be entered under sections twenty-three hundred and eightyseven and twenty-three hundred and eighty-e’ght of the Reviisied Statutes: Provided, That in addition to the jurisdiction
granted to the probate courts and the judges th ireof in Okla­
homa Territory by legis’atiVe enactments which enactments are
hereby ratified, the probate judg s of said territory are hereby
granted such jurisdiction in townsite matters and under such
regulations as are provided by the laws of the state of Kansas.
(Approved March 3, 1891.)
For jurisdiction of probate judge in townsite masters under
statutes of Kansas, see index, “Kansas Statutes.”
General Townsite Provisions.—The general provisions for
making entries, under United States townsite laws, are found
in sections 2387 and 2388, ReV’sed Statutes of the United States,
which are as follows:
Sec. 2387. Whenever any portion of the public lands have
been or may be settled upon and occupied as a townsite, not
subject to entry under the agricultural pre-emption laws, it is
lawful, in case such town be incorporated, for the cr-rporate
authorities thereof, and, if not incorporated, for the judge of
the- county court for the county in which such town "s situ ted,
to enter at the proper land office, and at the minimum pr’ce,
the lain so settled and occupied in trust for the several use
and benefit of the oedupants thereof, acoordiing to the'r respec­
tive inlterestiS; ithe execution of whidh trust, as tO' the disposal
of th© lots -n such town, and the proce|ed® of the sale thereof,
to be conducted under such regulations as may be pr'scribed
by the ieg’slative authority of the state or terr itory in whldh
the same may be situated.
Sec. 2388. The entry of the land provided for in the preced­
ing section shall be made, or a declaratory statement of the
(purpose of the inhabtants to enter it as a townsite shall be
filed with the register of thei proper land office prior 'to the
commencement of the pub ic sale O'f the body of land in which it
is indluded, and the entry or declaratory statement shall include

BOARD TO LEASE.

The act of congress approved
pro vid is :
“That the reservation for university, agricultural college,
and normal school purpose of section 13, in each township
of the lands known as the Cherokee OuVet, the Tonkawa In
dian reservation, and the Pawnee Indian r (slervafon, in the
Territory of Oklahoma, not otherwise reserved or disposed of.
and the reservation for the pubic buildings of section 33 m
e/ach township in said land, not otherwise disposed of, made
by the presl’dcnt of the UnSItted Stlates in ihiis proiclamatifon of
August 19, 1893, be, and the same are, hereby ratified, and all
said lands and all the school lands in the said territory maj
be leased under such laws anid reigulations as may be herf'after
prescribed by the legislature of said territory; but until such
legislative action, the governor, secretary of the territory, and
superintendent of public instruction shall constitute a board for
the leasing of said lands under rules and regulations heretofore
jirescribed by the secretary of the infer’or, for the respective
purposes for which the said reservations were made, except
that it shall not be necessary to submit leases to the «secretary
of the interi'or for his approval; and all the necessary expenses
and costs incurred in the leasing, management, and protection
of said lands and leases may be paid out of the proceeds
die rived from such leases.”

T ownsites.
Kiowa and Comanche Act.—The act of congress, approved
.Tune 6. 1900, onenrng these lands, provides that they shall “be
disposed of under the general provisions of the homestead and
townsite laws of the United Stateis.” Under the above titPi we
wish to consider what are the general provisions of th“ townsite
laws of the Un’ted States, as restrictrd or mod’fied by speci'^l
laws applicable to Oklahoma.

Location of County Seat Townsites.—Section 17 of the
act of congress, approved March 3, 1891, provides as follows:
Sec. 17. That before any lands in Oklahoma are opened to
settlement it shall be the duty of the secretary of the inter’or
to divide the same into counties which shall contain as near as
possible not less than nine hundred square miles in each county.

146

147

only such land as Is actually occupied by the town and the
title 'to which is in the United States; but in any territory
in which a land office may not have been establ'shed, such
declaratory statements may be filed with the surveyor-general
of the surveying district in which the lands are situated, who
shall transmit the same to the general land office.

Commuting

Homesteads

to

Townsites,— Section 22 of the

Organ’c Act is as fol’ows:
Sec. 22. That the provision si of title thirty-twiO', chapter
eight of the Revised Statutes of the United States relating
to ‘reservation and sale of townsttes on public land?’ shall
apply to the lands open, or to be opened to setitlement in the
Territory of Oklahoma, except those opened to settlement by
proclamation of the president, on the twenty-second day of
April, eighteen hundred and e ghty-nin'e: Provided, That here­
after all surveys for townsites in said territory shal’ conta n
reservations for parks (of substantially equal area if mo-e than
one park) and for schools and other public purposes, embracing
in the aggregate not less than ten nor more than twenty acres;
and patents for such r iservatlons, maintained for such pur­
poses, shall be issued to th^’ towns respect'vely when organized
as municipalities: Provided, further, That on case any lands
in said Territory of Oklahoma, which may be occupied and
fi’ed upon as a homestead, under the provisions of law appl"cable to said Territory, by a person who Is ent'tled to perfect
his title thereto under such laws, are required for townslte
purposes, it shall be lawful for such person to apply to the
secretary of the interior to purchase the lands embraced i’n sa’d
homestead or any part thereof for townslte purposes.
He
shall file with the appl'cation a plat of such proposed townshe,
and if such plat shall be approved by the secrpitary of the
interior, he shall issue a patent to such person for the land
embraced in said townsite, upon the payment of the sum of
ten dollars per acre for all the* lands embraced '’n such townsite, except the lands to be donated and maintained for public
purposes as provided in th’s section. And the sums sO' re­
ceived by the secre>tary of the interior shall be paid over to'
the proper authorities! of the municipal’ties when organized, to
be used by them for school purposes only.
Tt wib be observed that under s etion 17, the act of March
3, 1891, above quot d, that townsites for county seat purposes
are to be entered under selctions 2387 and 2388, of the Revised
Statutes of the United States. Section 22, of the Organic Act,
above quoted, provides that provisions of Utle 32, chapter 8,
of the Revised Statutes of the United States, relating to the
reservations and sale of townsites on public lands, shall apply
to lands opened, or to be opened to settlement in the Territory

of Oklahoma, except those opened to settlement April 22, 1889.
Sections 2387 and 2388 of the Revised Statutes of the United
States are a part of title 32, chapter 8, of the Revised Statutes
of the Lnited States, and, hence, these two Fcctions are in
force and apply to townsites upon aT the lands in Oklahoma,
except where some special provision has been made by act of
congress. The act of May 14, 1890, was a special town ite act,
which applied origiinally to the land opened for settlement April
22, 1889. By joint resolution of congress, September 1, 1893, this
act was made appllcab’e to the townsites in the Cherokee
Outlet.
This special act, however, does not app’y to the Kiowa and
Comanche lands. Unless there is further legislation by congress,
townsites on these lands will he entered under Sections 2387
and 2388, of the Revised Statutes of the Un’ted States, above
quoted, Section 17, of the Act of March 3, 1891, above set forth,
and Section 22 of the Organic Act, as above quoted.
Jurisdiction of Probate Judges»—As will he seen by Sec­
tion 17 of the act of March 3, 1891, referred to above the pro­
bate judges of said territory are hereby granteid such juris­
diction in toiwnsite matters, and under such legislation, as are
provided under the laws of Kansas. For further authority,
therefore, we look to the Kansas Townsite Act.

Kansas Town Site Act.
(General Statutes of Kansas, 1889 Sections 7038 to 7949 in’
elusive.)
Sec. 1. How and by 'Whom Entered.—In all cases in which
any of the public land of the United States in the State of
Kansas has been or shall hereafter be, selected as a townsite,
if the inhabitants of such town shall be at the sime incor­
porated, it shall be the duty of the corporate authorities of
such town, or, if not incorporated, then the probate judge
of the county in which such town is situated whenever
called on by any of the occupants of such town, and the
money for the entrance of such town site, furnished, tc
enter such town site under the act of congress in such case
provided.
Guffln vs. Linney, 26 Kan. 717.
Allen vs. Houston, 21 Kan. 194.
Setter vs. Alvey, 15 Kan. 157.
McTasrsrart vs. Harrison, 12 Kan. 62.

148
»nevyws. Sampson~ll Kan. on,
V/infield Town Co vs. Maris, 11 Kan. 128.
Independence Town Co. vs. DeLong, 11 Kan. 152.
Se c . 2. Corporate Authorities to Make Deeds When?—When
a townsite is entered under the above cited act of congress,
by the corporate authorities of any incorporated town,
deeds shall be made by the mayor, or other chief officer of
such town for the time being and said deed or deeds shall
be attested by said city clerk or register, and shall be
signed by such mayor, or other chief ofiicer, under the cor­
porate seal of said city, attested by said city clerk or regis­
ter, if said city shall have a corporate seal; and if it shall
have no seal, under the scroll, or private seal of said mayor
or other chief ofiicer, attested by the city clerk or register.
Matthew vs. Buckingham, 22 Kan. 166.
Sherry vs. Sampson, 11 Kan. 611.
Se c . 3. Probate Judge.—In all cases where townsites have
been, or shall hereafter be, entered in this state by the pro­
bate judge of the county, for the use of the inhabitants
thereof, as prescribed by law, it shall be the duty of such
judge, so entering such site, to convey the same to the oc­
cupants and inhabitants of such townsite according to their
respective interests, in the manner hereinafter prescribed.
Jackson vs. Winfield T. Co. 23 Kan. 542; Fessler vs. Hass, 19
Kan. 216.
Se c . 4. Commissioners.—At any time after the entry of
any such townsite, the probate judge of the county in
which such town may be situated may appoint three com­
missioners who shall not be residents of such town or the
owners of any interest therein, and it shall be the duties of
such commissioners to cause an actual survey of such site to
be made, conforming as near as may be, to the original
survey of such town, designating on such plat, the lots or
squares on which improvements are standing, with the
name of the owner or owners thereof, together with the
value of the same. Poster vs. Sterling, 33 Kan. 381; Rathbone vs. Sterling, 25 Kan. 444.
Se c . 5. Notice—Said commissioners shall, as soon as the
survey and plat shall be completed, cause to be published
in some newspaper published in the county in which such
town is -situated, a notice that such survey has been com­
pleted, and giving notice to all persons concerned or interI sted in such townsite that, on a designated day, the com­
missioners will proceed to set off to the persons entitled to

149
the sanib,"'according to tlieir respective interests, tne lots,
squares or grounds, to which each of the occupants thereof
shall be entitled.
Such publication shall be made at least
thirty days prior to the day set apart by such commissioners
to make such division.
Se c . 6. The Apportionment—After such publication shall
have been duly made, the commissioners shall proceed on
the day designated in such publication, to set apart vO the
persons entitled to receive the same, the lots, squares or
grounds to which each shall be entitled, according to their
respective interests, including, in the portion or portions
set apart to each person or company of persons, the im­
provements belonging to such persons or company. Yaxall
V. Com. 20, Kans., 581.
Se c . 7. Tax Levied, for What Purpose?—After the set­
ting apart of such lots or grounds and the valuation of the
same, as hereinbefore provided for, the said commissioners
shall proceed to levy a tax on the lots and improvements
thereon, according to their value, sulficient to raise a fund
to reimburse to the parties who may have entered such
site, the sum or sums paid by them in securing the title to
such site, together with all the expenses accruing in per­
fecting the same, the fees due the commissioners and the
surveyor for their respective services, and other necessary
expenses connected with the proceedings. 33 Kan., 381 ;
Emmert V. D Long 12 Kan., 67.
Se c . 8. Commissioners Return—Such commissioners shall
make due return of their proceedings, to the probate judge
within ten days after the completion of their duties under
this act, and shall with such return file all the papers, plats,
valuations and assessments connected with such proceed­
ings.
Se c . 9. Taxes. The said probate judge shall then pro­
ceed to collect the taxes, levied as aforesaid, and he shall
make deeds to the lots so set apart to the various parties
entitled to the same; but no deed shall be made to any per­
son until such person shall have first fully paid all the tax
or assessment so levied against him; and in case any person
shall refuse or neglect to pay such tax or assessment, so
made against him, the probate judge may proceed to offer
such lots and improvements for sale, to the highest bidder,
first giving such public notice as may be required in case oi
execution against the lands and tenements of a debtor in
the district court.

150

151

Se c . id . The probate judge shall reimburse the party or
parties who may have entered and secured title to such
site, together with all necessary expenses incurred, out ol
the fund thus providM, taking their receipts therefor;
which receipt shall he filed with the papers returned by the
commissioners, and kept by him among the records of his
court. 12 Kan. 67.
Se c . 11. Acknowledgement of Deeds. Deeds made by the
nrobate judge in pursuance of this act, shall be acknowl­

Townsites in Greer County.—Section 3, of the act of Jan­
uary 18, 1897, relative to townsites in Greer county, is as
follows:

edged by him, and may be recorded with Eke effect as other
deieds.

Sec. 12. All persons who select and lay out a townsite and
their assigns, shall be deemed occupants of said townsite and
the lots embraced therein, within the meaning of the above
recited acts of congress, and deeds shall be made accordingly.
(See oases above reeited.)
Titles to Lots Subject to Mineral Claims.—Section 2386,
Revised Statutes, provides:
“Where mineral vein® are pos*
sessed, which possession is recognized by local authority, and
to the extent so possessed and recognized, the t tle of town
lots to be acquired shall be subject io such recogniized posses­
sion and the necessary use thereof; but nothing contained an
this section shall be so construed as to recognize any color of
title In possessors for mining purposes as against the United
States.”
Number of Inhabitants.—“Sec. 2389. If upon surveyed lands,
the entry shall in its exterior limit be made in conformity to
the legal subdivisions of the public lands authorized by law;
and where the inhabitants are in number one hundred, and less
than two hundred, shall embrace not exceeding three hundred
and twenty acres; and in cases where the inhabitants of such
town are more than two hundred, and less than one thou and,
shall embrace not exceeding twelve hundred and eighty acres;
but for each additional one thousand inhabitants, not exceed­
ing five thousand in all, a further grant of three hundred and
twenty acre® shall be allowed.”
No Title to Mines.—“Sec. 2392. No title shall be acquired,
under the foregoing provisions of this chapter, to any mine
of gold, silver, cinnabar, or copper; or to any valid miningclaim or possession held under existing laws.”

“Sec. 3. That the inhabitants of any town located in said
county shall be entitled to enter the same as a (4) towns te
under tine provisions of (5) sections twenty-three hundred and
eighty-sev-en, twenty-three hundred and eighty-eight, and twenty-three hundred and eighty-nine of the Revised Statutes of
the United States: Provided, That all persons who have made
or own dmprovements on any town lots in said county made
prior to March sixt enth, eighteen) hundred and ninety-six,
sliiall have the preference right to enter said loits under the
provisions of this act and of the general townsite laws.”

Cities May Purchase for

Cemeteries

and

Parks,—The

act of congress approved September 30, 1890, prov d-S as folio,.s;
‘ Be it Enacted by the Senate and House of Representatives
in Congress Assembled, That incorporateid cities and towns
shall have the right, under rules and regulations prescribed by
the secretary of the interior, to purchase for cemetery and
park purposes not exceeding one-quarter section of public lands
not reserved for public use, such lands to be within three
miles of such cities or towns: Provided, That when such city
or town is situated within a mining district, the land proposea
to be taken under this act shall be considered as mlnera lands,
and patent to such land shaxl not authorize such city or town
to extract mineral therefrom, but all such mineral shall be
reserved to the United States, and such reservation shall be
entered into such patent.”

Townsites in Old Oklahoma and the Cherokee Outlet.—The
Act of May 18, 1890, applicable to lands opened to settlement
April 22, 1889, (Old Oklahoma), and the Cherokee Outlet opened
to scittiemient September 16, 1893, is as follows:
Be it Enacted by the Senate and House of Representatives
of the United States of America in Congress Assembled, That
so much of the public lands situate in the Territory of Okla­
homa, now open to setllement, as mav be neces ary to embrace
all the legal subdivisions covered by actual occupancy for the
purpo'se of trade and business, not
exceeding twelve
hundred and eighty acres in each case, may be entered as
townsites for the several use and benefit of the occupants

153

153

thereof, by three trustees to be appointed by the Secretary
of the Interior for that purpose, such entry to be made un­
der the provisions of section twenty-three hundred and
eighty seven of the Revised Statutes as near as may be; and
when such .entry shall have been made, the Secretary of
the Interior shall provide regulations for the proper execu­
tion of th« trust, by such trustees including the survey of
the lq,nd and streets, alleys, squares, blocks and lots when
necessary, or the approval of such survey as may already
have been made by the inhabitants thereof, the assessment
upon the lots of such sum as may be necessary to pay for
the lands embraced in such townsite, costs of survey, con­
veyance of lots, and other necessary expenses, including
compensation of trustees: Provided, That the Secretary of
the Interior may when practicable cause more than one
townsite to be entered and the trust thereby created exe­
cuted in the manner herein provided by a single board of
trustees, but not more than seven boards of trustees in all
shall be appointed for said Territory, and no more than two
members oi any of said boards shall be appointed from one
political party.
Se c . 2. That in the execution of such trust, and for the
purpose of the conveyance of title by said trustees, any
certificate or other paper evidence of claim duly issued by
the authority recognized for such purpose by the people
residing upon any town site the subject of entry hereunder,
shall be taken as evidence of the occupancy by the holder
thereof of the lot or lots therein described, except that
where there is an adverse claim to said property such cer­
tificate shall be only prima facie evidence of the claim of
occupancy of the holder; provided, that nothing in this act
contained shall be so construed as to make valid any claim
now invalid of those who entered upon and occupied said
lands in violation of the laws of ihe United States or the
proclamation of the President thereunder; provided further,
that the certificates hereinbefore mentioned shall not be
taken as evidence in favor of any person claiming lots who
entered upon said lots in violation of law or the proclama­
tion of the President thereunder.
Se c . 3. That lots of land occupied by any religious or­
ganization, incorporated or otherwise, conforming to the
approved survey within the limits of such town site, shall
be conveyed to or in trust for the same.
Se c . 4. That all lots not disposed of as hereinbefore pro­
vided for shall be sold under the direction of tht Secretary
of the Interior for the benefit of the municipal government

of any such town, or the saipe or any part thereof may be
reserved for public use as sites for-public buildings, or for
the purpose of parks, if in the judgment of the Secretary
such reservation would be for the public interest, and the
Secretary shall execute proper conveyances to carry out the
provisions of this section.
Se c . 5. That the provisions of sections four, five, six and
seven, of an act of the legislature of the State of Kansas,
(see index, Kansas Townsite Act) entitled “An act relating
to townsites,” approved March second eighteen hundred and
sixty-eight, shall, so far as applicable, govern the trustees
in the performance of their duties hereunder.
Se c . 6. That all entries of townsites now pending on ap­
plication hereafter made under this act, shall have prefer­
ence at the local land office of the ordinary business of the
office and shall be determined as speedily as possible, and if
an appeal shall be taken from the decision of the local office
in any such case to the Commissioner of the General Land
Office, the same shall be made special, and disposed of by
him as expeditiously as the duties of his office will permit,
and so if an appeal should be taken to the Secretary of the
Interior. And all applications heretofore filed in the pro­
per land office shall have the same force and effect as if
made under the provisions of this act, and upon the applica­
tion of the trustees herein provided for, such entries shall
be prosecuted to final issue in the names of such trustees,
without other formality and when final entry is made the
title of the United States to the land covered by such entry
shall be conveyed to said trustees for the uses and purposes
herein provided.
Se c . 7. That the trustees appointed under this act shall
have the power to administer oaths, to hear and determine
all controversies arising in the execution of this act, shall
keep a record of their proceedings, which shall, with all
papers filed with them and all evidence of their official acts,
except conveyances, be filed in the General Land Office and
become a part of the records of the same, and all convey­
ances executed by them shall be acknowledged before an
officer duly authorized for that, purpose.
They shall be allowed such compensation as the Secretary
of the Interior may prescribe, not exceeding ten dollars
per day while actually employed; and such traveling and
other necessary expenses as the Secretary may authorize
and the Secretary of the Interior shall also provide them
with necessary clerical force by detail or otherwUe.
Se c . 8. That the sum of ten thousand dollars or so much

154

155

thereof as may be necessary is hereby appropriated to carry
into effect the provisions of this act, except that no portion
of said sum shall be used in making payment for and entereo
hereunder, and the disbursements therefrom shall be refunded
to the treasury from the sums which may be realized from
the assessments made to dtifray the expense of carry ng out
the previsions of this act.
By joint resolution of congress, September 1, 1893, the above
act was extended over the Cherokze Outlet.
Approved May 14, 1890.

DECISIONS OF DEPARTMENT.

Settlement Upon Town Lots.
In the first part of this work what constitutes settlement
upon a homestead claim has been discussed at length. In
so far as the initiatory acts are concerned the same princi*
pies largely apply to settlement upon town lots.
The law
does not specify the amount of improvements required.
They should be such as are regarded as valuable improve­
ments and ordinarily should correspond with the value of
the lot. There is one important distinction, however, be­
tween what is necessary to acquire title to a lot on a govern­
ment townsite and that which is necessary to acquire title
to a claim under the homestead law and that is, that upon
town lots residence is not required. One who places valua­
ble improvements upon a town lot is regarded as an occupant
thereof though he does not reside upon the lot.
See Berry
vs. Corette, 15 L. D. 210.
In that case Assistant Secretary
Chandler says:
“I do not find that a person must actually
live upon the lot as upon a homestead. It is sufficient that
he makes settlement and improvements thereon, though
the improvements be occupied by another. Such tenant
occupies for him, the owner.”
See Winfield Town Co. vs. Enoch Maris et al, 11 Kan. 128.
Time to Acquire Title—It will require about three months
after the settlement on the townsite before deeds can be
secured. Of course, it may take much longer than this.

Amount of land to be resterved, 23 L. D. 74. Occupancy of
a tenant, 23 L. D. 196. Occupancy must be mainta ned to date
of entry, 23 L. D. 196. Right of an assigncie, 23 L. D. 384. Oc­
cupancy prevented by violence, 22 L. D. 31. Fractional part ot
lot, 22 L. D. 102. Possession by tenant, 22 L. D. 121, 177. R ght^
to streets and alleys occupied before survey, 22 L. D. 505. Joint,
deed to lot, 22 L. D. 505. Unoonspicuous stake does not consti­
tute settlement, 22 D. D. 505. Possessory right may be tranefer­
red, 22 L. D. 649. Reservation of land for park purposes, 22 L.D.
190, 367. Patent to trustees not necessarily final dispoisit on ot
government title, 22 L. D. 367.
A portable business stand in
front of lot not settlemEnt, 21 L. D. 84. Occupancy of back
part of lot may entitle occupant tO' deed for the whole lot,
21 L. D. 84. Unlawful entering in the Territory disqual fies,
21 L. D. 84. Any citizen of the United States qualified to take
town lot, 21 L. D. 98. Right of way of railroads, 21 L. D. 482.
Occupancy by tenant, 21 L. D. 98. Residence not necessary, 21
L. D. 522. Unlawful entry into the Territory, 21 L .D. 522.
Abandonment of townsite subject to homestead entry, 21 L. D.
104. In commuting hiomestead to townsite purchaser must pay
for streets and alleys. 21 L. D. 462. Claim of townsite cannot
defeat homestead entry prior thereto, 21 L. D. 367. Possession
by force or fraud, 21 L. D. 542. No right acquired by wrongful
possession, 20 L. D. 265. Right of landlord and tenant, 20 L. D.
264. Whiat is voluntary abandonment of lot? 20 L .D. 425.
Threats of force and armed vioknee, 20 L. D. 465.
May be­
taken for business or residence or both, 20 L. D. 495. Occupiaincy subsequent to the day of entry, 20 L. D. 202. In towns
of less than one hundred inhabitants, 18 L. D. 223.

MINING LAWS.
Kiowa and Comanche Act.—The Act of congress approved
June 6, 1900, opening to settlement the Kiowa, Comanche, and
Apache lands, contains the following, to-wit:
“That should any of said lands allotted to said Indians, or
lopenev. to settlement under this act, contain valuable mineral
deposits, such mineral depos ts sha il be open to location and
entry, under the existing mining iaws of the United States, upon
the passage of this act, and the mineral laws of the Uni ted
States are hejreby extended over said lands.”
GENERAL STATUTES.
The following are the important statutory provisions com*
prising tne mining laws of the United States:

^7

156
Mineral Lands Reserved, —Sec. 2318. In all cases lands
valuable for minerals shall be reserved from sale, except as
otherwise expressly directed by law.
Open to Purchase.—Sec. 2319. All valuable mineral d.pos'ts
in lands belong.ng to the United States, both surveyed and
unsurveyed, are hereby declared to be free and open to explora­
tion and purchase, and 'the lands in which they are found to
occupation and purchase, by citizens of the United States and
those who have declared their lintention to become such
under regulations prescribed by law, and according to the
local customs or rules of miners' in the several mining districts,
so far as the same are applicable and not inconsdstent with
the laws of the United States.
Length of Mining Claims.-Sec. 2320. Mining claims upon
veins or looesi of quartz or other rock in place bearing go d,
silver, cinnabar, lead, tin, copper, or other valuable^ depos is,
heretofore located, shall be governed as to length along the
vein or lode by the customs regulations', and laws in force
at the date of their location. A mining c aim located after the
tenth day of May, eighteen hundred and seventy-two. Whether
located by one or moire persons, may equal, but shall not
exceed, one thousand five hundred feet in length along the
vein or lode; but no location of a mining c airn shall be made
until the discovery of the vein or lode within the limits of the
claim localted. No claim shall extend more than three hundred
feet on each side of the' middle of the vein at the surface,
except where adverse rights existing on the tenth day of May,
nor shall any claim be limited by any mining regulation to
less than twenty-five feet on each s de of the middle of the
vein at the surface, except where adverse rights existing on
the tenth day of May, eighteen hundred and seventy-two,
render such limitation necessairy. The end lines of each claim
shall be paraillei tO' each other.
Rights of Possession.—See. 2322. The loca ors of all mining
locations herstofore made or which shall hereafter be made,
on any mineral vein, lode, or ledge, situated on the public
dloimain, thetr heirs and assiigns, wheire no aidverse claim exists
on the tenth day of May, eighteen hundred and seventy-two,
so long as they comply with the laws of the United States,
and with state, territorial, and local regulations not in confi ct
with the laws of the United States governing their pos essory
title, shall have the exclusive right of possession and enjoyment
of all the surface included within the li nes of their looatiicn ,
and of all veins, lodes, and ledges throughout their entire
depth, the top or apex of which lies inside of such surfaoo
lines extended downward vertically, although such ve ns, lodes.

157
or ledges may so far depart from a perpendicular ’n their
course downward as ‘to extend outs de the vertical side lines
of such surface locations. But their right of possession to such
outside parts of such veins or ledges shall be confined to such
portions thereof as lie between vertical p’anes drawn downward
as above described, through the end lines of their locations,
so continued in their own direefon that such planes will
intersect such exterior parts of such veins or ledges. And
nothing in t-iis section shall authorize the locator or pos essoi“
of a vein or lode which extends in its downward course
beyond the vertical I nes of his claim to enter upon the sur­
face of a claim owned or possessed by another.
Owners of Tunnels, Rights of.—Siec. 2323. Where a tunnel
Is run for the development of a vein or lode, or for the dis­
covery of mines, the owners of such tunnel shall have' the
right of possession of all veins or lodes within three thousand
feet from tne face of such tunnel on) the line thiereof, not
previously known to exist, discovered in such tunnel, to the
same extent as if discover d from the surface; and ’ocations
on the line of such tunnel of veins or lodes not appearing on
the surface, made by other parties after the commenc 'msnt of
the tunnel, and whi’e the same is being prosecuted with
re'asonable diligence, shall be- invalid, but failure to prosecuto
the work on the tunnel for six moniths shall be considered
as an abandonment of the right to a l und’seovered veins on
'the line of such tunn?l.
Regulations Made by Miners.—Sec. 23^1. The miners of
each mining district may make regulations not in conflict with
the laws of the United States, or with, the laws of the state
or territory in which thA' district is s'tuated, governing the
location, manner of recording, amount of work necessary to ho d
possession of a m'ning claim, subject to the following require^
ments; The location must be d s inctly m'^rked on the gi^ound
so that its' boundaries can be readily traced. Al r cords of
mining claims hereafter made shall conita'n the name or names
of the locators, the date of the location and such a description
of the claim or claims located by ref- rence to some natural
object or permanent monument as w 11 identify the c'alm.
On each cla^’m located after the (tenth day of May, eighteen
hiuindred and sevFuty-two, and until a patent has been issued
therefor, not less than one hundred dollars’ worth of lab r
shaJl be performed or improvements made during each year.
On all claims located prior to the tenth day of May, eighteen
hundred and seventy-iwo, ten dollars’ worth of labor shaT be
performed or improvements made by the tenth day of June,
eighteen hundred and seventy-four, and each year thereafter.

158

159

for each one hundred feet in length a-long the vein until a
patent has beeni issued' therefor; but where such claims are
hfJd in common, such expenditure may be made upon any one
claim; and upon a failure to comply with these conditions, the
claim or mine upon which s'uch failure occurred shall be open
to- relocation in the same manner as if no location of the
same had never been made, provided that the original locators,
their he'rs, assigns, or legal representatives, have not resumed
work union the claim after failure and before such location.
U^on the failure of any one of sevetral co-owner» to con­
tribute his proportion of the expenditures required hereby,
the co-owners who have performed the labor or made the im­
provements may, at the expiration of the year, give such
delinquent co-owner personal notice in wr'ting or notice by
publication in the newspaper published h^airest the claim, for
at least once a week for ninety days, and if at the expiration
of ninety days after such notice in writing or by publication
such delinquent should fail or refuse to contribute his pro­
portion of the expenditure required by this section, his Inter-^st
in the claim shall become the property of his co-owners who
have made the required expenlditure®.

or at any time thereafter within the sixty days of publication,
shall file with the register a certificate of the Unit d States
surveyor-general that five hundred dollars’ worth of labor
has been expended or improvements madei upon the c^a'm by
himself or grantors; that the plat is correct, with such further
diescr’ptiion by such reference- to natural objects or permanenit
mionuments as sha’l identify the claim and furnish an accu­
rate desciription, to be incorporated in the patent. At the ex­
piration of the sixty days of publication ithe icla’mant ‘hall
file his affidavit, showing that the plat ard notice have been
posted in a conspicuous n’ac^*) on the claim during such per’od
of publication. Tf no adverse claim shall have been filed w’th
the register and the receiver of -the proper land office at thn
expiration of the sixty days of publlcaf-on, it shall be a'^sum^d
that the appl’cant is entitled to a patent, uponi th'^i payment
to thie proper officer -of five dollars, per acre, and that no
adverse cla m exists; and thereafter no ohj iction from third
parties to the issuance of a patent shall be heard, -except it b
shown thiat the applicanit has failed to comply w’th the terms
of this chapter.
Adverse Claim, Proceedings on.—Sec. 2326. Where an ad­
verse claim is- fi’ed during the period of publication, it shall
bel upon oath of the person or persons making the same,
and shall show the nature, boundar’eS, and extent of such
adverse claim, and a’l proceedings, except the publication of
notice and mak’ng and filing of the- affidavit thereof, shall be
stayed until the controversy shall have been settled or decided
by a court of comp-eitent jurlsd’ction, or the adverse clawn
waived. It shall be the duty of the adversei claimant, within
thirty days after fil’ng his claim, to commence proceedings
in a court of competent jur'sdiction. to determine the question
of ith-e right of poss^ss'on, and prosecute the same with reasmnahlie diligence to final judgment; and a failure so to do sha’l
be a waiver of his adverse claim. After such judgment shall
have been rendered, the' party entitled to the possession of the
claim, or any po-rltion thereof, may, without giving further
notice, file a certified copy of ithe judgment roT with tib©
register of th®! land office, together with the certifica-te of the
surveyor-general that the requisite amount -of labor has been
expended or improvements made thereon, and the» desoriplfon
required In other cases, and shall pay to the- receiver five
doiliars per acr®' for his c^aim, together with the proper fees,
whereupon th-e whole proceedings and the judgment roll sha’l
he cprtifipd by the register to the Commissioner of the General
Uand Office, and a patent shall Issue thereon for the claim,
or such portion thereof as the applicant shall app®ar, from the
decision of the court, to rightly possess. Tf It appears from the
decision of the court that several parties are entitled to separate

* Patents—Sec. 2325. A patent for any land claimed and
located for valuable deposits may be obtained in the following
manner; Any person, as'Soc’atlon, or corporation author zed to
locate a c’aim und^r th’s chapter, having claimed and located
a piece of land for such purposes, who has, or have, complied
with the terms of this chapter, may file in the propter land
office an application for a patent, under oath, showing such
compliance, together with a plat and field not s of the cla’m
or claims in common, made by or under the direct'on of the
United States surveyor-general, showl’^g accurately the bound­
aries of the claim or c’alms, which shall be drstinctly marked
by monuments on the ground, and shall post a copy of such
plat, together with a notice of such appi'cation for a patent,
in a consD'cuous place on the land embraced In such^ plat
previous to the filing o-f the application for a patent, and sha^l
file an affidavit of at least two persons that such notice has
been duly posted, and shall file a copy of the notice in such
land office, and shall thereupon he ent’tled to a patent for the
land, In the manner following; The register of the land office,
upon the filing of such application, p’at, field notes', notices,
and affidavits, shall publish a notice that such application hos
been made, for the period of sixty days, in a newspaper to
be by him designated a® published nearest to such cHalm;
and he shall also post such notice in- his office for the same
period. The claimant at the time of filing this application,

IGO

IGl

and different portions of the claim, each party may pay for his
portion of the claim with the proper fees, and file the certifi­
cate and description by the surveyor-general, whereupon the
register shall certify the proceedings and judgment roll to the
Commissioner of the General Land Off ce, as in the preceding
case, and patents shall issue to the several parties according
to their respective rights. Nothing herein contained shall be
construed to prevent the alienation of a ti'le conveyed by a
patent for a mining cla:’m to any p rson whatever.

practicable with the United States system of public land sur­
veys, and the rectangular subdivisions of sucn survey®, and no
such location shall include more than twenty acres for each
individual claimant; but where placier claims can not be con­
formed to legal subdivisions, survey and plat shall b© made as
on unsurveyed lands; and where by the segregation of mineral
lands in any legal siubdivtision a quantity of agricultural land
less than forty acres remains, such fractional portion of agr cultural land may be entered by any party qualifieid by law,
for hemestead or pre-emption purposes.

Description of Vein Claims,—Sec. 2327. The ueisci iption cf
vein or lode claims, upon surveyed lands, shall designate the
location of the c’aim with referencei to the lines of the public
surveys but need not conform therewith; Put where a patent
shall be issued for claims upon unsurveyed lands, the survjyo general, in extending the surveys, shall adjust the same to the
boundaries of s'uch patented claim, according to thei p’at or
description thereof, but so ais in no case to interfere with or
change the lo'cation of any such patented claim.
Conformity of Placer Claims to Surveys.—Ssc. 2329. Claims
usually called “placers,” inc'uding all forms of d p:sit, except­
ing veins of quartz, or other rock in place, shall be subject to
entry and patent, under I ke circumstances and conditions, a'^id
upon similar proceedings, as are provided for vein or lode c'aim
but ripon similar proc iedhgs, as are provided for vein or lode
claims; but where the lands have been previo'usly surveyed by
the United State®, the entry in its exterior limits ^a"! conform
to the legal subdiv-sion® of the public lands.

Subdivisions of Ten^'Acre Tracts,—Sec. 2330. Legal subdivi­
sions of forty acres may be subdivided into ten-acre tracts;
and two or more persons, or associations of persons, hav'ng
contiguous claims of any size, aPbough such cla ms may be
less than ten acres each, may make joint entry thereof; hut
no location of a p acer claim, made after the ninth day of Ju’y,
eighteen hundred and seventy, shall exceed one hundred and
sixty acres for any one p rson or association of per. ons, which
location shall conform to the United States surveys; and nothing
in this siction contained shall defeat or impair any bona fide
pre-emption or homestead claim upon agricuitural lands, or
aulthor'ze the sale of the improvements of any bona fide settler
to any purchaser.
Conformity of Placer Claims to Surveys,—Sec. 2331.
Where placer claims are upon surveyed lands, and conform to
legal subdivisions, no further survey or plat shall be requred,
and all placer mining claims located after the tenth day of May,
eighteen hundred and seventy-two, shaJll conforpi as near as

Proceedings for Patent for Placer Claim, Etc.—Stec. 2333.
Where the same person, association, or corporation, is in
possession of a placer claim, and also a vein or lode included
within the boundaries thereof, application shall be made for
a patent for the placer claim, with the statement thiait it in­
cludes such vein or lode, and in such case a patent shall issue
for the placer claim, subject to the provisions of this chapter,
including such vein or lode, upon the payment of five dollars
peir acre for such vein or lode^claim, and twenty-five feet of^
surface on each side thereof.
Thie remainder of the placer
claim, or any placer claim not embracing any vein or iode
claim, shall be paid for at the rate of two dollar® and fifty
cents per acre^ together with all costs of proceedings; and
where a vein or lode, such as is described in section twe)ntythree hundred and twenty, is known to exist within the bound­
aries of a placer claim, an application for a patjent for such
placer claim which does not include an application for the
vein or lode claim shall be construed as a conclusive declara­
tion that the claimant of the placer claim has no right of
possession of the vein or lode claim; but where the existence
of a vein or lode in a placer claim is not known, a patent for
the placer claim shall convey all valuable mineral and other
deposits within the boundaries thereof.

Verification of Affidavits.—Sec. 2335. All affidavits required
to be made under this chapter may be verified before any offi­
cer authorized to administer oaths within the land district
where the claims may be situated, and all testimony and proofs
may be taken before any such officer, and when duly certified
by the officer taking the same, sihall have thIe same force and
effect asi if taken before the register and receiver of the land
office. In cases of contest as to the mineral or agriculturd,!
character of land, the testimony and proofs may be taken
os herein proviided on personal notice of at least ten days to
the opposing party; or if such party can not be found, then
by publication of at least once; a week for thirty days in a
newspaper, to be designated by the register of the land office
as published nearest to the location of such land; and the

162

163

register shall require proof that such notice has been given.

perform work on the surface of said lode or lodes in order
to hoto the same as required by said act.

Where Veins Intersect, Etc.—Sec. 2336. Where two or
more veins intersect or cross each other, priority of title shall
govern, and such prior location shall ba entitled to all ore
or mineral contained within the space of intersection; but the
subsequent location shall have the right of way through the
space of intersection for the purposes of the convenient work«
ing of the mine. And where two or more veins unite, the
oldest or prior location shall take the vein below the point
of union, including all the space of intersection.

Approved Feb. 11, 1875.

Vested Rights to Use of Water,—Sec. 2339. Whenever,
by priority of possession, rights to the use of water for mining,
agricultural, manufacturing, or other purposes, have vested
and accrued, and the same are recognized and acknowledged
by the local customs, laws, and the decisions of courts, the
possessors and owners of such vested rights shall be main­
tained and protected in the same; and the right of way for the
construction of ditches and canals for the purposes here n speci­
fied is acknowledged and confirmed; m Ul whenever any person,
in the construction of any ditch or canal, injures or damages
committing such injury or damage shall be liable to the parity
the possession of any settler on the public domain, the party
injure,a for such injury or damage.
Grant of Lands to States or Corporations.—Sec. 2346.
No act passed at the first sesión of the Thirty-eighth Congress,
granting lands to states or corporations to aid in the con­
struction of roads or for other purposes, or to exiend the
time of grants made prior tio the thirtieth day of January,
eighteen hundred and sixty-five, shall be so construed as to em­
brace mineral lands, which in all cases are reserved exclusively
to the United States, unless otherwise specially provided in
the act or acts making the grant.

An Act to amend section two thousand three hundred and
twenty-four of the Revised Statutes, relating to the de­
velopment of the mining resources of the United States.
Be it Enacted by the Senate and House of Representatives
of the United States of America, in Congree-® Assembled, That
section two thousand three hundred and twenty-four of the
Revised Statutes be, and the same is hereby, amended so
that where a person or company has or may run a tunnel
for the purpose of developing a lode or lode®, owned by said
person or company, the money so expended in said tunnel
shall be taken and considerea as expended on said lode or
lodes, whether located prior to or since the passage ©f said
act; ana such person or company shall not be required to

1

I

An Act authorizing the citizens of Colorado, Nevada, and
the Territories to fell and remove timber on the public
domain for mining and domestic purposes.
Be it Enacted by the Senate and House of Represientatives
of the United States of America in Congress Assembled, That
all citizens of the United States and other persons, bona
fide residents of the state of Colorado, or Nevada, or either
of the Territories of New Mexico, Arizona, Utah, Wyom­
ing, Dakota, Idaho, or Montana, and all other mineral districts
of the United States shall be, and áre hereby, authDrized and
permited to fell and remove, for building, agricultural, mining,
or other domestic purposes, any timber or other trees growing
or being on the public lands, said lands being mineral, and
not subject to entry under existing laws of the United States,
except for mineral entry, in either of said states, territories,
or districts of which such citizens or persons may be at the
time bona fide residents, subject to such ru es and regulat’ons
as the -secretary of the interior may prescribe for the pro­
tection of the timber and of the undergrowth growing upon
such lands, and for other purposes: Provided, The provisions
of this act shall not extend to railroad corporations.
Sec. 2. That it shall be the duty of the register and the
receiver of any local land officei in whose district any mineral
land may be situated to ascertain from time to time whether
any timber is being cut or used upon any such lands, except
for the purposes authorized by his act, wthin their respective
land districts; and if so, they shall immediately notify the
Commission-r of the General Land Office of that fact; and all
necessary expenses incurred in making such proper examina­
tions shall be paid and allowed such register and receiver
in making up their next quarteirly accounts.
Sec. 3. Any person or persons who shall violate the pro­
visions of this act, or any rules and regulations in pursuance
thereof made by the secretary of the interior, shall be deemed
guilty of a misdemeanor, and, upon conviction, shall be fined
in any sum not exceeding five hundred dollars, and to which
may be added imprisonment for any term not exceeding six
months.
Approved June 3, 1878.

An Act to amend sections twenty-three hundred and twentyfour and twenty-three hundred and twenty-five of the Re­
vised Statutes of the United States concerning mineral
lands.
Be it Enacted by the Senate and House of Represientatives
of the United States of America in Congress Assembled, That
section twenty-three hundred and twenty-five of the Revised

164

16»

Statutes of the United States be amended by adding thereto
the following words: “Provided, That where the claimant for
a patent is not a resident of or within the land district
wherein, the vein, lode, ledge, or deposit sought to be patented
is located, the application for patent and the affidavits re­
quired to be made in this section by the claimant for such
patent may be made by his, her, or its authorized agent,
where said agent is conversant with the facts sought to be
establlished by said affidavits: And provided. That ths section
shall apply to all applicaltions now pending for patents to
mineral lands.”
Sec. 2. That section twenty-three hundred and twenty-four
of the Revised Statutes of the United States be amended by
adding the following words: ‘‘Prodded, That the period within
which the work required to be done annually on all unpat­
ented mineral claims shall commence on the first day of
January succeeding the date of location of such claim, and
this section shall apply to all claims located since the tenth
day of May, Anno Domini eighteen hundred and seventy-two.”
Approved January 22, 1880.
An Act to amend section twenty-three hundred and twentysix of the Revised Statutes relating to suits at law affect­
ing the title to mining claims.
Be it Enacted by the Senate and House of Representatives
of the United States of America in Congress Assembled, That
if, in any action brought pursuant to section twenty-three
hundred and twenty-six of the\ Revised Statutes, title to- the
ground in controversy shall not be established by either party,
the jury shall so find and judgment shall be entered according
to the verdict.
In such case costs shall not be allowed to
either party, and the claimant shall not proceed in the land
office or be entitled to a patent for the ground in controversy
until he shall have perfected his title.
Approved March 3, 1881.
j^n Act to amend section twenty-three hundred and twenty-six
of the Revised Statutes, in regard to mineral lands, and
for other purposes.
Be it Enacted by the Senate and House of Representatives
of the United States of America in Congress Assembled, That
the adverse c'aim required by section itwenty-three hundred
and tw^enty-six of the Revised Statutes may be verified by
the oath of the duly authorized agent or attorney in fact
of the adverse claimant cognizant of the facts stated; and
the adverse claimant, if residing or at the time being beyond
the limits of the district wherein the claim is situated, may
make oaith to the adverse clatim before the clerk of any court
of record of the United States or the state or territory where
the adverse claimant may then be, or before any notary
public of such state or territory.

Sec. 2. That applicants for mineral patents, if residing
beyond the limits of the d striot wherein the c aim isi situated,
may make any oath or affidavit required for proof cf citizen­
ship before the clerk of any court of record, or before any
notary public of any state or territory.
Approved April 26. 1882.
Be it Enacted by the Senate and House of Representatives
of the United States of America in Congress Assembed:
Sec. 16. That townsite entries may be made by incorporated
towns and cities on the mineral lands of the United States,
but no title shall be acquired by such towns or cities to any
vein of gold, silver, cinnabar, copper, or leaJd, or to any valid
mining claim or possession held under existing law. When
mineral veins are possessed within the limits of an incorpor­
ated town or city, and such possession is recognized by local
authority or by the laws of the United States, the title to
town lots shall be subject to such recognized possession and
the necessary use thereof and when entry has been made or
patent Issued for such townsites to such incorporated town
or city, the possessor of such mineral vein may enter and
receive patent for such mineral vein, and the surface ground
appertaining therelto: Prorided, That no entry shall be made
by such mineral vein claimant for surface ground where the
owner or occupier of the surface ground shall have had
possession of the same before the ihception of the tit e of the
mineral vein applicant.
Approved March 3, 1891.
An Act to authorize the entry of lands chiefly valuable for
building stone under the placer mining laws .
Be it Enacted by the Senate and House of Representatives
of the United States of America in Congress Assembled, That
any person authorized to enter lands under the mining laws
of the United States may enter lands that are chiefly valuable
for building stone under the provisions of the law in relation
to placer mineral claims: Prorided, That lands reserved for
the benefit of the public schools or donated to any state shall
not be subject to entry under this act.
An Act to amend section numbered twenty-three hundred and
twenty-four of the Revised Statutes of the United States,
reliating to mining claims.
Be it Enacted by the Senate and House of Representatives
of the United States of America in Congress Assembled, That
the provisions of section numbered twenty-three hundred and
twenty-four of the Revised Statutes of the United States,
which require that on each claim located after the tenth dav
of May, eighteen hundred and seventy-two, and until oatent
has been Issued therefor, not less than one hundred dollars’
worth of labotr shall be performed or improvements made
during each year, be suspended' for the year eighteen hundred

166
and ninety-three so that no mining’ claim which has been
regularly located and recorded as reauired by the local laws
and miming regulations shall be subject to forfeiture for non­
performance of the annual asisiessment for the year eighteen
hundred and ninety-three:
Provided, That the claimant or
claimants of any mining location, in order to secure the bene­
fits of this act shall cause to be recorded in the office where
the location notice or certificate is filed on or before December
thirty-first, eighteen hundred and ninety-three, a notice that
ho or they, in good faith intend to hold and work said ci aim:
Provided, however, That the provisions of this act shall not
apply to the state of South Dakota.
This act shall take effect from and after its passage.
Approved November 3, 1893.

Regulations
of the Interior Department.
NATURE AND EXTENT OF MINING CLAIMS.
1. Mining claims are of two distinct classes: Lode claims
and placers.
LODE CLAIMS.
2. The status of lode claims located or patented previous
to the 10th day of May, 1872, is not changed with regard to
their extent along the lode or width of surface; but the claim
is enlarged by sections 2322 and 2328, by investing the locator,
his heirs or assigns, with the right to follow, upon the con­
ditions stated therein, all veins, lodes, or ledges, the top or
apex of which lies inside of the surface lines of his claim.
3. It is to be distinctly understood, however, that the law
limits the possessory right to veins, lodes, or ledges, other
than the one named in the original location, to such as were
not adversely claimed on May 10, 1872, and that where such
other vein or ledge was so adversely claimed at that date the
right of the party so adversely claiming is in no way im­
paired by the provisions of the Revised Statutes.
4. From and after the 10th of May, 1872, any person who is
a citizen of the United States, or who has declared his in­
tention to become a citizen, may locate, record, and hold a
mining claim of fifteen hundred linear feet along the course
of any mineral vein or lode subject to location; or an associa­
tion of persons, severally qualified as above, may make joint
location of such claim of fifteen hundred feet, but in no event

I

a

16:
can a location of a vein or lode made after the 10th day of
May, 1872, exceed fifteen hundred feet along the course thereof,
whatever may be the number of persons composing the associa­
tion.
5. With regard to the extent of surxace ground adjoining a
vein or lode, and claimed for the convenient working thereof,
the Revised Statutes provide that the lateral extent of loca­
tions of veins or lodes made after May 10, 1872, shall in no case
exceed three hundred feet on each side of the middle of the
vein at the surface, and that no such surface rights shall be
limited by any mining regulations to less than twenty-five
feet on each side of the middle of the vein at the surface,
except where adverse rights existing on the 10th of May, 1872,
may render such limitation necessary; the end lines of such
claims to be in all cases parallel to each other. Said lateral
measurements can not extend beyond three hundred feet on
either side of the middle of the vein at the surface, or such
distance as is allowed by local laws, for example: 400 feet can
not be taken on one side and 200 feet on the other. If, how­
ever, 300 feet on each side are allowed, and by reason of prior
claims but 100 feet can be taken on one side, the locator will
not be restricted to less than 300 feet on the other side; and
when the locator does not determine by exploration where the
middle of the vein at the surface is, his discovery shaft must
be assumed to mark such point.
6. By the foregoing it will be perceived that no lode claim
located after the 10th May, 1872, can exceed a parallelogram
fifteen hundred feet in length by six hundred feet in width, but
whether surface ground of that width can be taken depends
upon the local regulations or State or Territorial laws in
force in the several mining districts; and that no such local
regulations or State or Territorial laws shall limit a vein or
lode claim to less than fifteen hundred feet along the course
thereof, whether the location is made by one or more persons,
nor can surface rights be limited to less than fifty feet in width
unless adverse claims existing on the 10th day of May, 1872, ren­
der such lateral limitation necessary.
7. The rights granted to locators under section 2322, Re­
vised Statutes, are restricted to such locations on veins, lodes,
or ledges as may be “situated on the public domain.’’ In ap­
plications' for lode claims where the survey conflicts with the
survey or location lines of a prior valid lode claim and the
ground within the conflicting surveys is excluded, the applicant
not only has no right to the excluded ground, but he has no
right to that portion of any vein or lode the top or apex of
which lies within such excluded ground, unless his location
was prior to May 10, 1872. His right to the lode claimed ter­
minates where the lode, in its onward course of strike, inter­
sects the exterior boundary of such excluded ground and pas-

168
ses within it. The end line of his survey should not, therefore,
be established beyond such intersection.
Provisions under 8 omitted because not now in force.
9. Locators can not exercise too much care in defining
their locations at the outset, inasmuch as the law requires
that all records of mining locations made subsequent to May
10, 1872, shall contain the name or names of the locators, the
date of the location, and such a description of the claim oi
claims located, by reference to some natural object or per­
manent monument, as will identify the claim.
10. No lode claim shall be located until after the discovery
of a vein or lode within the limits of the claim, the object
of which provision is evidently to prevent the appropriation
of presumed mineral ground for speculative purposes, to the
exclusion of bona fide prospectors, before sufficient work has
been done to determine whether a vein or lode really exists.
11. The claimant should, therefore, prior to locating his
claim, unless the vein can be traced upon the surface, sink
a shaft or run a tunnel or drift to a sufficient depth therein
to discover and develop a mineral-bearing vein, lode, or cre­
vice; should determine, if possible, the general course of such
vein in either direction from the point of discovery, by which
direction he will be governed in marKing the boundaries of his
claim on the surface. His location notice should give the
course and distance as nearly as practicable from the dis­
covery shaft on the claim to some permanent, well-known
points or objects, such, for instance, as stone monuments,
blazed trees, the confluence of streams, point of intersection
of well-known gulches, ravines, or roads, prominent buttes,,
hills, etc., which may be in the immediate vicinity, and which
will serve to perpetuate and fix the locus of the claim and
render it susceptible of identification from the description
thereof given in the record of locations in the district, and
should be duly recorded.
12. In addition to the foregoing data, the claimant should
state the names of adjoining claims, or, if none adjoin, the
relative positions of the nearest claims; should drive a post
or erect a monument of stones at each corner of his surface
ground, and at the point of discovery or discovery shaft should
fix a post, stake, or board, upon which should be designated
the name of the lode, the name or names of the locators,
the number of feet claimed, and in which f’irection from the
point of discovery; it being essential that the location notice
filed for record, in addition to the foregoing description, shoula
state whether the entire claim of fifteen hundred feet is taken
on one side of the point of discovery, or whether it is partly
upon one and partly upon the other side thereof, and in the lat­
ter case, how many feet are claimed upon each side of such discoverj’’ point.

lb.

169
13. The location notice must be filed for record in all re­
spects as required by the State or Territorial laws and local
rules and regulations, if there be any.
14. In, order to hold the possessory title to a' mining claim
located prior to May 10, 1872, and for which a patent has not
been issued, the law requires that ten dollars shall be expend­
ed annually in labor or improvements on each claim of one
hundred feet on the course of the vein or lode until a patent
shall have been issued therefor; but where a number of such
claims are held in common upon the same vein or lode,
the aggregate expenditure that would be necessary to hold all
the claims, at the rate of ten dollars per hundred feet, may
be made upon any one claim. The first annual expenditure
upon claims of this class should have been performed subse­
quent to May 10, 1872, and prior to January 1, 1875. From and
after January 1, 1875, the required amount must be expended an­
nually until patent issues.
15. In order to hold the possessory right to a location made
since May 10, 1872, not less than one hundred dollars’ worth
of labor must be performed or improvements made thereon
annually until entry shall have been made. Under the pro­
visions of the act of Congress approved January 22, 1880, the
first annual expenditure becomes due and must be performed
during the calendar year succeeding that in which the loca­
tion was made. Expenditure made or labor performed prior to
the first day of January succeeding the date of location will not
be considered as a part of or applied upon the first annual ex­
penditure required by law.
16. Failure to make the expenditure or perform the labor
required upon a location made before or since May 10, 1872, will
subject a claim to relocation, unless the original locator, his
heirs, assigns, or legal representatives have resumed work after
such failure and before relocation.
17. Annual expenditure is not required subsequent to entry,
the date of issuing the patent certificate being the date con­
templated by statute.
18. Upon the failure of any one of several co-owners of a
vein, lode, or ledge, which has not been entered, to contribute
his proportion of the expenditures necessary to hold the
claim or claims so held in ownership in common, the co­
owners, who have performed the labor or made the improve­
ments as required by said Revised Statutes, may, at the ex­
piration of the year, give such delinquent co-owner personal
notice in writing, or notice by publication in the newspaper
published nearest the claim for at least once a week for ninety
days; and if upon the expiration of ninety days after such
notice in writing, or upon the expiration of one hundred and
eighty days after the first newspaper publication of notice,
the delinquent co-owner shall have failed to contribute his pro-

170

171

portion to meet such expenditures or improvements, his in­
terest in the claim by law passes to his co-owners who have
made the expenditures or improvements as aforesaid. Where a
claimant alleges ownership of a forfeited interest under the
foregoing provision, the sworn statement of the publisher as to
the facts of publication, given dates and a printed copy of
the notice published, should be furnished, and the claimant
must swear that the delinquent co-owner failed to contribute
his proper proportion within the period fixed by the statute.
TUNNELS.
19. The effect of section 2323, Revised Statutes, is simply to
give the proprietors of a mining tunnel run in good faith
the possessory right to fifteen hundred feet of any blind lodes
cut, discovered, or intersected by such tunnel, which were
not previously known to exist, within three thousand feet from
the face or point of commencement of such tunnel, and to pro­
hibit other parties after the commencement of the tunnel, from
prospecting for and making locations of lodes on the line there­
of and within said distance of three thousand feet, unless such
lodes appear upon the surface or were previously known to
exist.
20. The term “face,” as used in said section, is construed
and held
to mean the first working face formed
in
the tunnel, and to signify the point at which the tunnel
actually enters cover; it being from this point that the three
thousand feet are to be counted upon which prospecting is
prohibited as aforesaid.
21. To avail themselves of the benefits of this provision of
law, the proprietors of a mining tunnel will be required, at the
time they enter cover as aforesaid, to give proper notice of their
tunnel location by erecting a substantial post, board, or monu­
ment at the face or point of commencement thereof, upon
which should be posted a good and sufficient notice, giving the
names of the parties or company claiming the tunnel right;
the actual or proposed course or direction of the tunnel; the
height and width thereof, and the course and distance from
such face or point of commencement to some permanent wellknown objects in the vicinity by which to fix and determine the
locus, in manner heretofore set forth applicable to locations of
veins or lodes, and at the time of posting such notice they shall,
in order that miners or prospectors may be enabled to determine
whether or not they are within the lines of the tunnel,
establish the boundary lines thereof, by stakes or monu­
ments placed along such lines at proper intervals, to the ter­
minus of the three thousand feet from the face or point of
commencement of the tunnel, and the lines so marked will de­
fine and govern as to the specific boundaries within which
prospecting for lodes not previously known to exist is prohib­
ited while work on the tunnel is being prosecuted with reason­
able diligence.

22. At the time of posting notice and marking out the lines
of the tunnel as aforesaid, a full and correct copy of such
notice of location defining the tunnel claim must be filed for
record with the mining recorder of the district, to which notice
must be attached the sworn statement or declaration of the
owners, claimants, or projectors of such tunnel, setting forth
the facts in the case; stating the amount expended by them­
selves and their predecessors in interest in prosecuting work
thereon; the extent of the work performed, and that it is
bona fide their intention to prosecute work on the tunnel so
located and described with reasonable diligence for the develop­
ment of a vein or lode, or for the discovery of mines, or both,
as the case may be. This notice of location must be duly re­
corded, and, with the said sworn statement attached, kept
on the recorder’s files for future reference.
23. By a compliance with the foregoing much needless
difficulty will be avoided, and the way for the adjustment of
legal rights acquired in virtue of said section 2323 will be made
much more easy and certain.
24. This office will take particular care that no improper
advantage is taken of this provision of law by parties making
or professing to make tunnel locations, ostensibly for the
purposes named in the statute, but really for the purpose
of monopilizing the lands
lying in front of their
tunnels, to the detriment of the mining interests and to the
exclusion of bona fide prospectors or miners, but will hold
such tunnel claimants to a strict compliance with the terms
of the statutes; and a reasonable diligence on their part
in prosecuting the work is one of the essential conditions of
their implied contract. Negligence or want of due diligence
will be construed as working a forfeiture of their right to all
undiscovered veins on the line of such tunnel.
PLACER CLAIMS
25. But one discovery of mineral is required to support a
placer location, whether it be of twenty acres by an individual,
or of one hundred and sixty acres or less by an association of
persons.
26. The act of August 4, 1892, extends the mineral-land laws
so as to bring lands chiefly valuable for building stone with­
in the provisions of said law, by authorizing a placer entry of
such lands. It does not operate, however, to withdraw lands
chiefly valuable for building stone from entry under any exist­
ing law applicable thereto. Registers and receivers should
therefore make a reference to said act on the entry papers
in the case of all nlacer entries made for lands contain­
ing stone chiefly valuable for building purposes. It will be
noted that lands reserved for the benefit of public schools or
donated to any State are not subject to entry under said act.

172
173
27. It is to be observed that the provisions of the mineral
laws relating to placers are extended by the act of February 11,
1897, so as to allow the location and entry thereunder of public
lands chiefly valuable for petroleum or other mineral oils,
and entries of that nature made prior to the passage of said
act are to be considered as though made thereunder.
28. By section 2330 authority is given for the subdivision of
forty acre legal subdivisions into ten-acre lots, which is intend­
ed for the greater convenience of miners in segregating their
claims both from one another and from intervening agricultural
lands.
29. It is held therefore, that under a proper construction of
the law these ten-acre lots in mining districts should be considereo and dealt with, to all intents and purposes, as legal
subdivisions, and that an applicant having a legal claim which
conforms to one or more of these ten-acre lots, either adjoin­
ing or cornering, may make entry thereof, after the usual
proceedings, without further survey or plat.
30. In cases of this kind, however, the notice given of the
application must be very specific and accurate in description,
and as the forty-acre tracts may be subdivided into ten-acre
lots, either in the form of squares of ten by ten chains, or,
if parallelograms, five by twenty chains, so long as the lines
are parallel and at right angles with the lines of the public
surveys, it will be necessary that the notice and application
state specifically what ten-acre lots are sought to be patented
in addition to the other data required in the notice.
31. Where the ten-acre subdivision is in the form of a square
it may be described, for instance, as the “SE 1-4 of the SW.
1-4 of the NW 1-4.” or, if in the form of a paraUelogram as
aforesaid, it may be described as the ‘Wl^: of the W% of the
SW. 1-4 of the NW. 1-4 (or the N % of the SVz of the NE 1-4
of the SE 1-4) of section ------------- , township ------------- , rangé
as the case may be; but. in addition to this descrlption of the land, the notice must give all the other data that is
required in a mineral application, by which parties may be pul
on inquiry as to the premises sought to be patented. The proofs
submitted with applications for claims of this kind must show
clearly the character and the extent of the improvements upon
the premises.
The proof of improvements must show their value to be not
less than five hundred dollars and that they were made by the
applicant for patent or his grantors. The annual expenditure
to the amount of $100, required by section 2324, Revised Statutes,
must be made upon placer claims as well as lode claims.
32. Applicants for patent to a placer claim, who are also in
possession of a known vein or lode included therein, must state
in their application that the placer includes such vein or lode.
The published and posted notices must also include such

statement. If veins or lodes lying within a placer location are
owned by other parties, the fact should be distinctly stated in
the application for patent,and in all the notices. But in all cases,
whether the lode is claimed or excluded, it must be surveyed
and marked upon the plat, the field notes and plat giving the
area of the lode claim or claims and the area of the placer
separately. It should be remembered that an application which
omits to include an application for a known vein or lode therein
must be construed as a conclusive declaration that the appli­
cant has no right of possession to the vein or lode. Where
there is no known lode or vein, the fact must appear by the
affidavit of two or more witnesses.
33. By section 2330 it is declared that no location of a placer
claim, made after July 9, 1870, shall exceed one hundred and
sixty acres for any one person or association of persons, which
location shall conform to the United States surveys.
; 34. Section 2331 provides that all placer-mining claims locat­
ed after May 10, 1872, shall conform as nearly as practicable
with the United States systems of public surveys and the sub­
divisions of such surveys, and no such locations shall include
more than twenty acres for each individual claimant.
35. The foregoing provisions of ’aw are construed to mean
that after the 9th day of July, 1870, no location of a placer
claim can be made to exceed one hundred and sixty acres,
whatever may be the number of locators associated together,
or whatever the local regulations of the district may allow; and
that from and after May 10, 1872, no location can exceed
twenty acres for each individual participating therein; that
is, a location by two persons can not exceed forty acres, and
one by three persons can not exceed sixty acres.
36. The regulations hereinbefore given as to the manner
of marking locations on the ground, aud placing the same on
record, must be observed in the case of placer locations so far
as the same are applicable, the law requiring, however, that
where placer claims are upon surveyed public lands the lo­
cations must hereafter be made to conform to legal subdivi­
sions thereof as near as practicable.
PROCEDURE TO OBTAIN PATENT TO MINERAL LANDS.
37. As a condition for the making of application for patent
according to section 2325, there must be a preliminary showing
of work or expenditure upon each location, either by showing
the full amount sufficient to the maintenance of possession
under section 2324 for the pending year, or, if there has been
failure, it should be shown that work has been resumed so as
to prevent relocation by adverse parties after abandonment.
The “pending year” means the calendar year in which ap­
plication is made, and has no reference to a showing of work
at date of the final entry.

174
38. This preliminary showing may, where the matter is
unquestioned, consist of the affidavit of two or more witnesses
familiar with the facts.
39. The claimant is required, in the first place, to have a
correct survey of his claim made under authority of the sur­
veyor-general of the State or Territory in which the claim lies,
such survey to show with accuracy the exterior surface bound­
aries of the claim, which boundaries are required to be dis­
tinctly marked by monuments on the ground. Four plats and
one copy of the original field notes in each case will be prepared
by the surveyor-general; one plat and the original field notes to
be retained in the office of the surveyor-general, one copy of
the plat to be given the claimant for posting upon the claim,
one plat and a copy of the field notes to be given the claimant
for filing with the proper register, to be finally transmitted by
that officer, with other papers in the case, to this office and one
plat to be sent by the surveyor-general to the register of the
proper land district, to be retained on his files for future ref­
erence. As there is no resident surveyor-general for the State
of Arkansas, applications for survey of mineral claims in
said State should be made to the commissioner of this office,
who, under the law, is ex-officio the U. S. surveyor-general.
40 The survey and plat of mineral claims required to be
filed in the proper land office with application for patent must
be made subsequent to the recording of the location of the
claim (if the laws of the State or Territory or the regulations
of the mining district require the notice of location to be re­
corded,) and when the original location is made by survey of a
United States deputy surveyor such location survey can not be
substituted for that required by the statute, as above indicated.
41. The surveyors-general should designate all surveyed min­
eral claims by a progressive series of numbers, beginning with
survey No. 37, irrespective as to whether they are situated on
surveyed or unsurveyed lands, the claim to be so designated at
date of issuing the order therefor, in addition to the local
designation of the claim; it being required in all cases that
the plat and field notes of the survey of a claim must, in addi­
tion to the reference to permanent objects in the neighborhood,
describe the locus of the claim with reference to the lines of
public surveys by a line connecting a corner of the claim with
the nearest public corner of the United States surveys, unless
such claim beyond unsurveyed lands at a distance of more than
two miles from such public corner, in which latter case it
should be connected with a United States mineral monument.
Such connecting line must not be more than two miles in length
and should be measured on the ground direct between the
points, or calculated from actually surveyed traverse lines if
the nature of the country should not permit direct measure­

T“

4.

175
ment. If a regularly established survey corner is within two
miles of a claim situated on unsurveyed lands, the connection
should be made with such corner in preference to a connection
with a United States mineral monument. The connecting line
must be surveyed by the deputy mineral surveyor at the time
of his making the particular survey, and be made a part thereof.
42. Upon the approval of the survey of a mining claim made
upon surveyed lands the surveyor-general will prepare and
transmit to the local land office and to this office a diagram
tracing showing the portions of legal 40 acre subdivisions made
fractional by reason of the mineral survey, designating each of
such portions by the proper lot number, beginning with No. 1
in each section, and giving the area of each lot.
43. The following particulars should be observed in the sur­
vey of every mining claim:
(1) The exterior boundaries of the claim, the number of
feet claimed along the vein, and, as nearly as can be ascertained
the direction of the vein, and the number of feet claimed on the
vein in each direction from the point of discovery or other well
defined place on the claim should be represented on the plat of
survey and in the field notes.
(2) The intersection of the lines of the survey with the
lines of conflicting prior surveys should be noted in the field
notes and represented upon the plat.
(3) Conflicts with unsurveyed claims, where the applicant for
survey does not claim the area in conflict, should be shown
by actual survey.
(4) The total area of the claim embraced by the exterior
boundaries should be stated, and also the area in conflict with
each intersecting survey, substantially as follows:
ACRES

Total area of claim .......................................................................... 10.50
Area in conflict with survey No. 302 ......................................... 1.56
Area in conflict with survey No. 948 ............................................ 2.33
Area in conflict with Mountain Maid lode mining claim, un­
surveyed ........................................................................................... 1-48
It does not follow that because mining surveys are required
to exhibit all conflicts with prior surveys the areas of con­
flict are to be excluded. The field notes and plat are made a
part of the application for patent, and care should be taken that
the description does not inadvertently exclude portions intended
to be retained. It is better that the application for patent
should state the portions to be excluded in express terms.
44. The claimant is then required to post a copy of the plat
of such survey in a conspicuous place upon the claim, to­
gether with notice of his intention to apply for a patent therefor
which notice will give the date of posting, the name of the
claimant, the name of the claim, the number of the survey, the

176
mining district and county, and the names of adjoining and con­
flicting claims as shown by the plat of survey. Too much care
can not be exercised in the preparation of this notice, inasmuch
as the data therein are to be repeated in the other notices re­
quired by the statute, and upon the accuracy and completeness
of these notices will depend, in a great measure, the regularity
and validity of the proceedings for patent.
45. After posting the said plat and notice upon the premises,
the claimant will file with the proper register and receiver a
copy of such plat and the field notes of survey of the claim,
accompanied by the affidavit of at least two credible witnesses
that such plat and notice are posted conspicuously upon the
claim, giving the date and place of such posting; a copy of the
notice so posted to be attached to and form a part of said
affidavit.
46. Accompanying the field notes so filed must be the sworn
statement of the claimant that he has the possessory right to
the premises therein described, in virtue of a compliance by him­
self (and by his grantors, if he claims by pur­
chase) with the mining rules, regulations, and customs ofthe
mining district. State, or Territory in which the claim lies, and
with the mining laws of Congress; such sworn statement to nar­
rate briefly, but as clearly as possible, the facts constituting
such compliance, the origin of his possession, and the basis of
his claim to a patent.
47. This sworn statement must be supported by a copy of
the location notice, certified by the officer in charge of the
records where the same is recorded, and where the applicant for
patent claims the interest of others associated with him in mak­
ing the location, or only as purchaser, in addition to the copy
of the location notice, must be furnished a complete abstract
of title as shown by the record in the office where the trans­
fers are by law required to be recorded, certified to by the
officer in charge of the record, under his official seal. The of­
ficer should also certify that no conveyances affecting the title
to the claim in question appear of record other than those set
forth in the abstract, which abstract shall be brought down
to the date of the application for patent. Where the appli­
cant claims as sole locator, his affidavit should be furnished to
the effect that he has disposed of no interest in the land located.
48. In the event of the mining records in any case having
been destroyed by fire or otherwise lost, affidavit of the fact
should be made, and secondary evidence of possessory title will
be received, which may consist of the affidavit of the claimant,
supported by those of any other parties cognizant of the facts
relative to his location, occupancy, possession, improvements,
etc,; and in such case of lost records, any deeds, certificates of
location or purchase, or other evidence which may be in the

177
claimant’s possession and tend to establish his claim, should
be filed.
49. Before receiving and filing a mineral application for
patent, local officers will be particular to see that it includes
no land which is embraced in a prior or pending application for
patent or entry, or for any lands embraced in a railroad selec­
tion, or for which publication is pending or has been made by
any other claimants, and if, in their opinion, after investigation,
it should appear that a mineral application should not, for these
or other reasons, be accepted and filed, they should formally re­
ject the same, giving the reasons therefor, and allow the appli­
cant thirty days for appeal to this office under the Rules of
Practice.
50. Lpon the receipt of these papers, if no reason appears
for rejecting the application, the register will, at the expense
of the claimant (who must furnish the agreement of the pub­
lisher to hold applicant for patent alone responsible for charges
of publication,) publish a notice of such application for the
period of sixty days in a newspaper published nearest to the
claim, and will post a copy of such notice in his office for the
same period. When the notice is published in a weekly news­
paper, nine consecutive insertions are necessary; when in a
daily newspaper, the notice must appear in each issue for sixtyone consecutive issues. In both cases the first day of issue must
be excluded in estimating the period of sixty days.
51. The notices so published and posted must embrace all
the data given in the notice posted upon the claim. In addition
to such data the published notice must further indicate the
locus of the claim by giving the connecting line, as shown by
the field notes and plat, between a corner of the claim and a.
United States mineral monument or a corner of the public sur­
vey, and thence the boundaries of the claim by courses and dis­
tances.
52. The register shall publish the notice of application for
patent in a paper of established character and general circula­
tion, to be by him designated as being the newspaper published
nearest the land.
53. The claimant at the time of filing the application for
patent, or at any time within the sixty days of publication, is
required to file with the register, a certificate of the surveyorgeneral that not less than five hundred dollars’ worth of labor
has been expended or improvements made, by the applicant or
his grantors, upon each location embraced in the application, or
if the application embraces several locations held in com­
mon, that an amount equal to five hundred dollars for each
location, has been so expended upon, and for the benefit of,
the entire group; that the plat filed by the claimant is correct;
that the field notes of the survey, as filed, furnish such an ac-

178

179

curate description of the claim as will if incorporated in a patent
serve to fully identify the premises and that such reference is
made therein to natural objects or permanent monuments as
will perpetuate and fix the locus thereof; Provided, That as to
all applications for patent made and passed to entry before
July 1, 1898, or which are by protests or adverse claims prevent­
ed from being passed to entry before that time, where the ap­
plication embraces several locations held in common, proof of
an expenditure of five hundred dollars upon the group will be
sufficient and an expenditure of that amount need not be shown
to have been made upon, or for the benefit of, each location
embraced in the application.
54. The surveyor-general may derive his information upon
which to base his certificate as to tne value of labor expended
or improvements made from his deputy who makes the actual
survey and examination upon the premises, and such deputy
should specify with particularity and full detail the character
and extent of such improvements.
55. It will be the more convenient way to have this certifi­
cate indorsed by the surveyor-general, both upon the plat and
field notes of survey filed by the claimant as aforesaid.
56. After the sixty days’ period of newspaper publication has
expired, the claimant will furnish from the office of publica­
tion a sworn statement that the notice was published for the
statutory period, giving the first and last day of such publica­
tion, and his own affidavit showing that the plat and notice
aforesaid remained conspicuously posted upon the claim sought
to be patented during said sixty days’ publication, giving the
dates.
57. Upon the filing of this affidavit the register will, if no
adverse claim was filed in his office during the period of pub­
lication, permit the claimant to pay for the land according to
the area given in the plat and field notes of survey aforesaid, at
the' rate of five dollars for each acre and five dollars for each
fractional part of an acre, except as otherwise provided by law,
the receiver issuing the usual duplicate receipt tnerefor. The
claimant will also make a sworn statement of all charges and
fees paid by him for publication and surveys, together with all
fees and money paid the register and receiver of the land office,
after which the complete record will be forwarded to the Com­
missioner of the General Land Office and a patent issued there­
on if found regular.
58. At any time prior to the issuance of patent, protest may
be filed against the patenting of the claim as applied for, upon
any ground tending to show that the occupant has failed to
comply with the law in a matter which would avoid the claim.
Such protest can not, however, be made the means of preserv­
ing a surface conflict lost by failure to adverse or lost by the

judgment of the court in an adverse>suit. One holding a pres­
ent joint interest in a mineral location included in an appli­
cation for patent who is excluded from the application, so that
his interest would not be protecteo by the issue of patent there­
on, may protest against the issuance of a patent as applied for,
setting forth in such protest the nature and extent of his interest
in such location, and such a protestant will be deemed a party
in interest entitled to appeal. This results from the holding
that a co-owner excluded from an application for patent does
not have an “adverse” claim within the meaning of sections
2325 and 2326 of the Revised Statutes. See Turner v. Sawyer,
150 U. S.. 578-586.
59. Any party applying to make entry as trustee must dis­
close fully the nature of the trust and the name of the cestui
que trust; and such trustee, as well as the beneficiaries, must
furnish satisfactory proof of citizenship; and the names of ben­
eficiaries, as well as that of the trustee, must be inserted in the
final certificate of entry.
60. The proceedings to obtain patents for claims usually
called placers, including all forms of deposit, excepting veins
of quartz or other rock in place are similar to the proceedings
prescribed for obtaining patents for vein or lode claims; but
where said placer claim shall be upon surveyed lands, and con­
forms to legal subdivisions, no further survey or plat will be
required; and all placer mining claims located after May 10,
1872, shall conform as nearly as pract. cable with the United
States system of public-land surveys and the rectangular subdi­
visions of such surveys, and no such location shall include more
than twenty acres for each individual claimant; but where
placer claims can not be conformed to legal subdivisions, survey
and plat shall be made as on unsurveyed lands. But where
such claims are located previous to the public surveys, and do
not conform to legal subdivisions, survey, plat, and entry thereof
may be made according to the boundaries thereof, provided the
location is in all respects legal.
i
61. The proceedings for obtaining patents for veins or lodes
having already been fully given, it will not be necessary to re­
peat them here, it being thought that careful attention thereto
by applications and the local officers will enable them to act
understandingly in the matter, and make such slight modifica­
tions in the notice, or otherwise, as may be necessary in view
of the different nature of the two classes of claims; placer
claims being fixed, however, at two dollars and fifty cents per
acre, or fractional part of an acre.
62. The first care in recognizing an application for patent
upon a placer claim must be exercised in determining the exact
classification of the lands. To this ena the clearest evidence of
which the case is capable should be presented.

¡

ISO
(1) If the claim be all placer ground, that fact must be
stated in the application and corroborated by accompanying
proofs; if of mixed placers and lodes, it should be so set out,
with a description of all known lodes situated within the bound­
aries of the claim. A specific declaration, such as is required
by section 2333, Revised Statutes, must be furnished as to each
lode intended to be claimed. All other known lodes are, by the
silence of the applicant, excluded by law from all claim by him,
of whatsoever nature, possessory or otherwise.
(2) Deputy surveyors shall, at the expense of the parties,
make full examination of all placer claims surveyed by them,
and duly note the facts as specified in the law, stating the quali­
ty and composition of the soil, the kind and amount of timber
and other vegetation, the locus and size of streams, and such
other matters as may appear upon the surface of the claim.
This examination should include the cnaracter and extent of all
surface and underground workings, whether pacer or lode, for
mining purposes.
(3) In addition to these data, which the law requires to be
shown in all cases, the deputy should report with reference to
the proximity of centers of trade or residence; also of wellknown systems of lode deposit or of individual lodes. He should
also report as to the use or adaptability of the claim for placer
mining; whether water has been brought upon it in sufficient
Quantity to mine the same, or whether it can be procured for
that purpose; and, finally, what works or expenditures have been
made by the claimant or his grantors for the development of
the claim, and their situation and location with respect to the
same as applied for.
(4) This examination should be reported by the deputy under
oath to the surveyor-general, and duly corroborated; and a copy
of the same should be furnished with the application for patent
to the claim, constituting a part thereof, and included in the
oath of the applicant.
(5) Applications awaiting entry, whether published or not,
must be made to conform to these regulations, with respect to
examination as to the character of the land. Entries already
made will be suspended for such additional proofs as may be
deemed necessary in each case.

MILL SITES.
63.
Land entered as a mill site must be shown to be non­
mineral. Mill sites are simply auxiliary to the working of min­
eral claims, and as section 2337, which provides for the patent­
ing of mill sites, is embraced in the chapter of the Revised Sta­
tutes relating to mineral lands, they are therefore included in
this circular.
64. To avail themselves of this provision of law parties hold­
ing the possessory right to a vein or lode, and to a piece of non­

ISl
mineral land not contiguous thereto for mining or milling pur­
poses, not exceeding the quantity allowed for such purpose by
section 2337, or prior laws, under which the land was appro­
priated, the proprietors of such vein or lode may file in the
proper land office their application for a patent, under oath, in
manner already set forth herein, which application, together
with the plat and field notes, may include, embrace, and de­
scribe, in addition to the vein or lode, such noncontiguous mill
site, and after due proceedings as to notice, etc., a patent will
be issued conveying the same as one claim. The owner of a pat­
ented lode may, by an independent application, secure a mill
site if good faith is manifest in its use or occupation, in connec­
tion with the lode and no adverse claim exists
65. Where the original survey includes a lode claim and also
a mill site the lode claim should be described in the plat and
field notes as “Sur. No. 37, A,” and the mill site as “Sur. No.
37, B,” or whatever may be its appropriate numerical designa­
tion; the course and distance from a corner of the mill site to
a corner of the lode claims to be invariably given in such plat
and field notes and a copy of the plat and notice of applica­
tion for patent must be conspicuously posted upon the mill site
as well as upon the vein or lode for me statutory period of six­
ty days. In making the entry no separate receipt or certificate
need be issued for the mill site, but the whole area of both
lode and mill site will be embraced in one entry, the price being
five dollars for each acre and fractional part of an acre em­
braced by such lode and mill site claim.
66. In case the owner of a quartz mill or reduction works is
not the owner or claimant of a vein or lode the law permits
him to make application therefor in the same manner prescribed
herein for mining claims, and after due notice and proceedings,
in the absence of a valid adverse filing, to enter and receive a
patent for his mill site at said price per acre.
67. In every case there must be satisfactory proof that the
land claimed as a mill site is not mineral in character, which
proof may, where the matter is unquestioned, consist of the
sworn statement of two or more persons capable, from ac­
quaintance with the land, to testify understandingly.
68. The proof necessary to establish the citizenship of appli­
cants for mining patents must be made in the following man­
ner: In case of an incorporated company, a certified copy of
their charter or certificate of incorporation must be filed. In
case of an association of persons unincorporated, the affidavit
of their duly authorized agent, made upon his own knowledge or
upon information and belief, setting forth the residence of each
person forming such association, must be submitted. This affi­
davit must be accompanied by a power of attorney from the
- parties forming such association, authorizing the person who

1^
182

183

makes the affidavit of citizenship to act for them in the mat­
ter of their application for patent.
69. In case of an individual or an association of individuals
who do not appear by their duly authorized agent, you will re­
quire the aiTidavit of each applicant, showing whether he is a
native or naturalized citizen, when and where born, and his resi­
dence.
70. In case an applicant has declared his intention to become
a citizen or has been naturalized, his affidavit must show the
date, place, and the court before which he declared his inten­
tion, or from which his certificate of citizenship issued, and pres­
ent residence.
71. The affidavit of the claimant as to his citizenship may
be taken before the register or receiver, or any other officer
authorized to administer oaths within the land district; or, if
the claimant is residing beyond the limits of the district, the
affidavit may be taken before the clerk of any court of record or
before any notary public of any State or Territory.
72. If citizenship is established by the testimony of disin­
terested persons, such testimony may be taken at any place be­
fore any person authorized to administer oaths, and whose of­
ficial character is duly verified.
73. In sending up the papers in the case the register must
not omit certifying to the fact that the notice was posted in
his office for the full period of sixty days, such certificate to
state distinctly when such posting was done and how long con­
tinued. The plat forwarded as part of the proof should not be
folded, but rolled, so as to prevent creasing, and either transmit­
ted in a separate package or so enclosed with the other papers
that it may pass through the mails without creasing or mutila­
tion. If forwarded separately, the letter transmitting the pa­
pers should state the fact.
74. No entry will be allowed until the register has satisfied
himself, by a careful examination, that proper proofs have been
filed upon all the points indicated in official regulations in force
and that they show a sufficient bona fide compliance with the
laws and such regulations.
75. The consecutive series of numbers of mineral entries
must be continued, whether the same are of lode or placer
claims or mill sites.

sory right in accordance with this provision of law, he will not
be required to produce evidence of location, copies of convey­
ances, or abstracts of title, as in other cases, but will be re­
quired to furnish a duly certified copy of the statute of limita­
tion of mining claims for the State or Territory, together with
his sworn statement giving a clear and succinct narrafon of the
facts as to the origin of his title, and likewise as to the con­
tinuation of his possession of the mining ground covered by his
application; the area thereof; the nature and extent of the min­
ing that has been done thereon; whether there has been any
opposition to his possession, or litigation with regard to his
claim and, if so, when the same ceased: whether such cessation
was caused by compromise or by judicial decree, and any ad­
ditional facts within the claimant’s knowledge having a direct
bearing upon his possession and bona fiides which he may de­
sire to submit in support of his claim.
78. There should likewise be filed a certificate, under seal of
the court having jurisdiction of mining cases within the judicial
district embracing the claim, that no suit or, action of any
character whatever involving the right of possession to any por­
tion of the claim applied for is pending, and that there has been
no litigation before said court affecting the title to said claim
or any part thereof for a period equal to the time fixed by the
statute of limitations for mining claims in the State or Territory
as aforesaid other than that which has been finally decided in
favor of the claimant.
79. The claimant should support his narrative of facts rel­
ative to his possession, occupancy, and improvements by corrob­
orative testimony of any disinterested person or persons of
credibility who may be cognizant of the facts in the case
and are capable of testifying understandingly in the premises.
ADVERSE CLAIMS.
80. An adverse mining claim must be filed with the register
and receiver of the land office where the application for pat­
ent was filed, or with the register and receiver of the district
in which the land is situated at the time of filing the adverse
claim. It must be on the oath of the adverse claimant, or it
may be verified by the oath of any duly authorized agent or
attorney in fact of the adverse claimant cognizant of the facts
stated.
81. Where an agent or attorney in fact verifies the adverse
claim, he must distinctly swear that he is such agent or attor­
ney, and accompany his affidavit by proof thereof.
82. The agent or attorney in fact must make the affidavit
in verification of the adverse claim within the land district
where the claim is situated.
83. The adverse notice must fully set forth the nature and
extent of the interference or conflict; whether the adverse party

POSSESSORY RIGHT.
76. The provisions of section 2332, Revised Statutes, will
greatly lessen the burden of proof, more especially in the case
of old claims located many years since, the records of which,
in many cases, have been destroyed by fire, or lost in other
ways during the lapse of time, but concerning the posessory
right to which all controversy or litigation has long been settled.
77. When an applicant desires to make his proof of posses­

1

1S4
claims as a purchaser for valuable consideration or as a locator;
if the former, a certified copy of the original location, the
original conveyance, a duly certified copy thereof, or an abstract
of title from the office of the proper recorder should be fur­
nished, or if the transaction was a merely verbal one he will
narrate the circumstances attending the purchase, the date
thereof, and the amount paid, which* facts should be supported
by the affidavit of one or more witnesses, if any were present
at the time, and if he claims as a locator he must file a duly
certified copy of the location from the office of the proper re­
corder.
84. In order that the “boundaries” and “extent” of the
claim may be shown, it will be incumbent upon the adverse
claimant to file a plat showing his entire claim, its relative sit­
uation or position with the one against which he claims, and
the extent of the conflict;
Provided, however, That if the ap­
plication for patent describes the claim by legal subdivisions,
the adverse claimant, if also claiming by legal subdivisions,
may describe his adverse claim in the same manner without
further survey or plat. If the claim is not described by legal
subdivisions, it will generally be more satisfactory if the plat
thereof is made from an actual survey by a deputy mineral
surveyor, and its correctness officially certified thereon by him.
85. Upon the foregoing being filed within the sixty days*
publication, the register, or in his absence the receiver, will
give notice in writing to both parties to the contest that such
adverse claim has f been filed, informing them that the party
who filed the adverse claim will be required within thirty days
from the date of such filing to commence proceedings in a
court of competent jurisdiction to determine the question of
right of possession, and to prosecute the same with reason
able diligence to final judgment, and that, should such adverse
claimant fail to do so, his adverse claim will be considered waiv­
ed, and the application for patent be allowed to proceed upon
its merits.
8\ When an adverse claim is filed as aforesaid, the register
or receiver will indorse upon the same the precise date of filing,
and preserve a record of the date of notifiations issued thereon;
and thereafter all proceedings on the application for patent
will be suspended, with the exception of the completion of the
publication and posting of notices and plat, and the filing of the
necessary proof thereof, until the controversy shall have been
adjudicated in court, or the adverse claim waived or with­
drawn.

87. Where an adverse claim has been’filed and suit thereon
commenced within the statutory period, and final judgment de­
termining the right of possession rendered in favor of the ap­
plicant, it will not be sufficient for him to file with the regis­

1S5
ter a certificate of the clerk of the court, setting forth the
facts as to such judgment, but he must, before he is allowed
to make entry, file a certified copy of the judgment, together
with other evidence required by section 2326, Revised Stat­
utes,
88. Where such suit has been dismissed, a certificate of the
clerk of the court to that effect or a certified copy of the order
of dismissal will be sufficient.
89. After an adverse claim has been filed and suit com­
menced, a relinquishment or other evidence of abandonment
will not be accepted, but the case must be terminated and proof
thereof furnished as required by the last’two paragraphs.
90. Where an adverse claim has teen filed, but no suit com­
menced against the applicant' for patent within the statutory
period, a certificate to that effect by the clerk of the State
court having jurisdiction in the case, and also by the clerk
of the circuit court of the United States for the district in which
the claim is situated, will be required.
APPOINTMENT OF DEPUTIES FOR SURVEY OP MINING-

CLAIMS—CPIARGES FOR SURVEYS AND PUBLICATIONS
—FEES OP REGISTERS AND RECEIVERS, ETC.
91. Section 2334 provides for the appointment of surveyors
of mineral claims, and authorizes the Commissioner of the
General Land Office to establish the rates to be charged for
surveys and for newspaper publications. Under this authority
of law the following rates have been established as the maxi­
mum charges for newspaper publications in mining cases:
(1) Where a daily newspaper is designated the charge shall
not exceed seven dollars for each ten lines of space occupied,
and where a weekly newspaper is designated as the medium
of publication five dollars for the same space will be allowed.
Such charge shall be accepted as full payment for publication
in each issue of the newspaper for the entire period required
by law.
It is expected that these notices shall not be so abbreviated
as to curtail the description essential to a perfect notice, and
the said rates established upon the understanding that they
are to be in the usual body type used for advertisements.
(2) For the publication of citations in contests or hearings
involving the character of lands the charges shall not exceed
eight dollars for five publications in weekly newspapers or ten
dollars for publications in daily newspapers for thirty days.
92. The surveyors-general of the several districts will, in
pursuance of said law, appoint in each land district as many
competent deputies for the survey of mining claims as may seek
such appointment, it being distinctly understood that all ex­
penses of these notices and surveys are to be borne by the
mining claimants and not by the United States. The claimant

ii^^B

186

187

may employ any deputy surveyor within such district to do
his work in the field. Each deputy mineral surveyor before en­
tering upon the duties of his office or appointment shall be re­
quired to enter into such bond for the faithful performance
of his duties as may be prescribed by the regulations of the
land department in force at that time.
93. With regard to the platting of the claim and other of­
fice work in the surveyor-general’s office, that officer will
make an estimate of the cost thereof, which amount the claim­
ant will deposit with any assistant United States treasurer or
designated depository in favor of the United States Treasurer,
to be passed to the credit of the fund created by “individual
depositors for surveys of the public lands,’’ and file with the
surveyor-general duplicate certificates of such deposit in the
usual manner.
94. The surveyors-general will endeavor to appoint mineral
deputy surveyors, so that one or more may be located in each
mining district for the greater convenience of miners,
regulations as the Secretary of the nterior shall establish,
95. The usual oaths will be required of these deputies and
their assistants as to the correctness of each survey execut­
ed by them.
The duty of the deputy mineral surveyor ceases when he
has executed the survey and returned the field notes and pre­
liminary plat thereof with his report to the surveyor-general.
He will not be allowed to prepare for the mining claimant the
papers in support of an application for patent or otherwise
perform the duties of an attorney before the land office in
connection with a mining claim.
The surveyors-general and local land officers are expected
to report any infringement of this regulation to this office.
96. Should it appear that excessive or exorbitant charges
have been made by any surveyor or any publisher, prompt ac­
tion will be taken with the view of correcting the abuse.
97. The fees payable to the register and receiver for filing
and acting upon applications for mineral-land patents are five
dollars to each officer, to be paid by the applicant for patent
at the time of filing, and the like sum of five dollars is pay­
able to each officer by an adverse claimant at the time of fil­
ing his adverse claim. (Sec. 2238, R. S., paragraph 9.)
98. At the time of payment of fee for mining application
or adverse claim the receiver will issue his receipt therefor in
duplicate, one to be given the applicant or adverse claimant,
as the case may be, and one to be forwarded to the Commis­
sioner of the General Land Office on the day of issue. The
receipt for mining application should have attached the cer­
tificate of the register that the lands included in the appli­
cation are vacant lands subject to such appropriation.

99. The register and receiver will, at the close of each
month, forward to this office an abstract of mining applications
filed, and a register of receipts, accompanied with an abstract
of mineral lands sold, and an abstract of adverse claims filed.
190. The fees and purchase money received by registers and
receivers must be placed to the credit of the United States in
the receiver’s monthly and quarterly account, charging up in
the disbursing account the sums to which the register and re­
ceiver may be respectively entitled as fees and commissions,
with limitations in regard to the legal maximum.
HEARINGS TO DETERMINE CHARACTER OF LANDS.
101. The Rules of Practice in cases before the United States
district land office, the General Land Office, and the Depart­
ment of the Interior will, so far as applicable, govern in all
cases and proceedings arising in contests and hearings to de­
termine the mineral cha^’acter of lands.
102. No public land shall be withheld from entry as agri­
cultural land on account of its mineral character, except such
as is returned by the surveyor-general as mineral; and the
presumption arising from such a return may be overcome by
testimony taken in the manner hereinafter described.
103. Hearings to determine the character of lands are practi­
cally of two kinds, as foPows:
(1) Lands returned as mineral by the surveyor-general.
When such lands are sought to be entered as agricultural
under laws which require the submission of final proof after
due notice by publication and posting, the filing of the proper
non mineral affidavit in the absence of allegations that the
land is mineral will be deemed sufficient as a preliminary re­
quirement. A satisfactory showing as to character of land
must be made when final proof is submitted.
In case of application to enter, locate, or select such lands
as agricultural, under laws in which the submission of final
proof after due publication and posting is not required, notice
thereof must first be given by publication for sixty days and
posting in the local office during the same period, and affir­
mative proof as to the character of the land submitted. In
the absence of allegations that the land is mineral, and upon
compliance with this requirement, the entry, location, or
selection will be allowed, if otherwise regular.
(2) Lands returned as agricultural and alleged to be mineral
in character.
Where as against the claimed right to enter such lands as
agricultural it is alleged that the same are mineral, or are
applied for as mineral lands, the proceedings in this class of
cases will be in the nature of a contest, and the practice will
be governed by the rules in force in contest cases.
104. Where a railroad company seeks to select lands not
returned as mineral, but within six miles of any mining loca­
tion, claim, or entry, or where in the case of a selection by a

-

188

189

State, the lands sought to be selected are within a township
in which there is a mining location, claim, or entry, publication
must be made of the lands selected at the expense of the rail­
road company or State for a period of ^ixty days, with posting
for the same period in the land office for the district in which
the lands are situated during which period of publication the
local land officers will receive protests or contests for any of
said tracts or subdivisions of lands claimed to be more valu­
able for mining than for agricultural purposes.
105. At the expiration of the period of publication the regis­
ter and receiver will forward to the Commissioner of the
General Land Office the published list, noting thereon any
protests, or contests, or suggestions as to the mineral charac­
ter of any such lands, together with any information they may
have received as to the mineral character of any of the lands
mentioned in said list, when a hearing may be ordered.
106. At the hearings under either of the aforesaid classes,
the claimants and witnesses will be thoroughly examined with
regard to the character of the land; whether the same has
been thoroughly prospected; whether or not there exists within
the tract or tracts claimed any lode or vein of quartz or other
rock in place, bearing gold, silver, cinnabar, lead, tin, or cop­
per, or other valuable deposit which has ever been claimed,
located, recorded, or worked; whether such work is entirely
abandoned, or whether occasionally resumed; if such lode does
exist, by whom claimed, under what designation, and in which
subdivision of the land it lies; -whether any placer mine or
mines exist upon the land; if so, what is the character thereof—
whether of the shallow-surface description, or of the deep
cement, blue lead, or gravel deposits; to what extent mining
is carried on when water can be obtained, and what the fa­
cilities are for obtaining water for mining purposes; upon
what particular ten-acre subdivisions mining has been done,
and at what time the land was abandoned for mining pur­
poses, if abandoned at all.
107.The testimony should also show the agricultural capaci­
ties of the land, what kind of crops are raised thereon, and
the value thereof; the number of acres actually cultivated for
crops of cereals or vegetables, and within which particular
ten-acre subdivision such crops are raised; also which of these
subdivisions embrace the improvements, giving in detail the
extent and value of the improvements, such as house, barn,
vineyard, orchard, fencing, etc., and mining improvements.
108. The testimony should be as full and complete as possi­
ble; and in addition to the leading points indicated above,
where an attempt is made to prove the mineral character
of lands which have been entered under the agricultural laws,
it should show at what date, if at all, valuable deposits of
mineral were first known to exist on the lands.
109. When the case comes before this office such decision will
be made as the law and the facts may justify; in cases where

a survey is necessary to set apart the mineral from the agri­
cultural land, the proper party at his own expense will be
required to have the work done, at his option, either by United
States deputy, county, or other local surveyor; application
therefor must be made to the register and receiver, accom­
panied by a description of the land to be segregated, and the
evidence of service upon the opposite party of notice of his
intention to have such segregation made; the register and re­
ceiver will forward the same to this office, when the neces­
sary instructions for the survey will be given. The survey in
such case, where the claims to be segregated are vein or lode
claims, must be executed in such manner as will conform to
the requirements in section 2320, United States Revised Statutes,
as to length and width and parallel end lines.
110. Such survey when executed must be properly sworn
to by the surveyor, either before a notary public, officer of
a court of record, or before the register or receiver, the de­
ponent’s character and credibility to be properly certified to
by the officer administering the oath.
111. Upon the filing of the plat and field notes of such sur­
vey with the register and receiver, duly sworn to as aforesaid,
they will transmit the same to the surveyor general for his
verification and approval; who, if he finds the work correctly
performed, will properly mark out the same upon the original
township plat in his office, and furnish authenticated copies of
such plat and description both to the proper local land office
and to this office, to be affixed to the duplicate and triplicate
township plats respectively.
112. With the copy of plat and description furnished the
local office and this office must be a diagram tracing, verified
by the surveyor general, showing the claim or claims segre­
gated, and designating the separate fractional agricultural
tracts in each 40-acre legal subdivision by the proper lot num­
ber, beginning with No. 1 in each section, and giving the area
in each lot, the same as provided in paragrarph 45, in the sur­
vey of mining claims on surveyed lands.
113. The fact that a certain tract of land is decided upon
testimony to be mineral in character is by no means equiva­
lent to an award of the land to a miner. In order to secure a
patent for such land he must proceed as in other cases, in
accordance with the foregoing regulations.
Blank forms for proofs in mineral cases are not furnished
by the General Land Office.
FREE USE OF TIMBER AND STONE.
The law provides that “The Secretary of the Interior may
permit, under regulations to be prescribed by him, the use
of timber and stone found upon such reservations, free of
charge, by bona fide settlers, miners, residents, and prospect­
ors for minerals, for firewood, fencing, buildings, mining, pros­
pecting, and other domestic purposes, as may be needed by

1

190
such persons for such purposes; such timber to be 'used with­
in the state or territory, respectively, where such reservations
may be located.”
This provision is limited to persons resident in forest reser­
vations who have not a sufficient supply of timber or stone
on their own claims or lands for the purposes enumerated, or
for necessary use in developing the mineral or other natural
resources of the lands owned or occupied by them. Such per­
sons, therefore, are permitted to take timber and stone from
public lands in the forest reservations under the terms of the
law above quoted, strictly for their individual use on their
own claims or lands owned or occupied by them, but not for
sale or disposal, or use on other lands, or by other persons:
Provided, That where the stumpage value exceeds one hundred
dollars, application must be made to and permission given by
the department.
BINGER HERMANN,
Commissioner.
Department of the Interior, June 24, 1899.
Approved :
E. A. HITCHCOCK, Secretary.

I

Kiowa and Comanche
Reservation.

4»

Location, Climate, Soil, and Products,
Agricultural and Mineral Wealth,

Boundaries. —The boundaries of the Kiowa, Comanche
and Apache lands are as follows: Commencing at a point
where the Washita River crosses the ninety-eight meridian
west from Greenwich; thence up the Washita River, in the
middle of the main channel thereof, to a point thirty miles,
by river, west of Fort Cobb, as now esitablished; thence due
west to the north fork of Red River, provided said line
strikes said river east of the one-hundredth meridian of
west longitude; if not then only to said meridian line, and
thence due south, on said meridian line, to the said north
fork, in the middle of the main channel thereof, from the
point where it may be first intersected by the lines above
described, to the main Red River; thence down said Red
River, in the middle of the main channel thereof, to its in­
tersection with the ninety-eighth meridian of longitude west
from Greenwich; thence north on said meridian line, to the
place of beginning.
GENERAL, LOCATION.
The general location of this reservation is in the southwesitern portion of Oklahoma. On the south is the main Red
River and on the west is the North Pork of the Red River.
On the north is the Washita River.

193
192

Description of Country.—The following’ article, descrip­
tive of the Kiowa, Comanche, and Apache lands recently
appeared in the Chickasha Express. As the editor has liv­
ed for years on the border of this reservation, and speaks
from personal knowledge, we believe the information will
be found reliable. We quote the following:
“The lands lying south of the mountains as well as to
the north are largely susceptible to the tickling of the plow
and the industry of the plowman and farmer. That these
lands are productive is proven from the fact that such lands
are now cultivated, and further by the evidence that the
Chickasaw nation on the east and the county of Greer on
the west are in cultivation and producing good crops and
sustaining large populations. There need be no doubt as
to the climate and productiveness of the reservation. It is
not only a good climate, but has a productive soil.
Sur­
rounded as it is by counties already settled, cultivated by
a people who are intelligent, cultivated, religious and re­
fined, makes it a land very very desirable in which to make
a home.
The Kiowa, Comanche and Apache Indian reservation
lies between the Washita river on the north to Red river
on the south, about 100 miles, and from the 98th degree of
west longitude to the North Pork of Red river on the west,
a distance of about ninety miles, and comprises about four
million acres of land. The location is easily found on any
modern map.
Wichita Mountains — Mineral Wealth.—This reservation
is composed of fine agricultural and grazing lands both north
and south of the Wichita mountains, which is a range of
low but rough and rugged mountains reaching from the
eastern to the western boundaries, and comprises about one
million acres. These mountains contain minerals in untold
quantities—untold for the reason that they have been guard­
ed with the jealous eye of an agent and his Indian police
and 'United States troops from the vigilant search and covet­
ous grasp of the wily prospector. That rich minerals exisit
there cannot be doubted at this time. There has been
enough found and tested to prove that gold, silver, tin,
platinum, zinc and lead exist there in paying qutntities. We
have on our table a piece of ore that will fuse with heat of
an ordinary wood fire, and a metal, either tin or lead, will
fiow from it. Gold and silver are yet undeveloped to an ex­
tent to prove their real value, but assays have shown values
ranging from $4 to $130 per ton, and even much higher. The
rush for these claims will equal that of the *49 days of Cali-

fornia, that of Pike’s Peak, and that of the latest gold find,
the Klondike.
Grazing Lands, —^Along the foot of this mountain range
are numerous streams of running water, skirted with more
or less timber. The land along these mountains is more
or less broken, but afford fine little valleys of fertile lands
and the finest of pasture or grazing lands, the principal gras­
ses being the gamma and mesquite, being the most nutrit­
ious that grow. Caittle eat and fatten on this peculiar grass
when it is dry and brown as the northern grass is in the
dead of winter, and of which cattle will not eat at all at
thait time. Cattle are turned loose upon these mesquite past­
ures and never eat anything else, summer nor winter.
Timber, —Away from the mountain the land opens out
into undulating plains crossed and traversed with
finö
streams of fine fiowing waiter, skirted with more or less tim­
ber. Often these plains are covered with mesquite trees, a
stunted buöh of a hard red wood, resembling cedar.
It
makes excellent fence po^t and a good wood for fuel. The
tree has a large roott of a more tangled and knotty growth
than the top. These roots are easily worked and have grea.t
heating properties. These mesquite fiats are fine grazing,
and make fine wheat lands when cultivaJted.
Water Supply, —^The water supply is abundant in every
part of the reservation, being found in springs, creeks and
by digging to depths of 20 to 40 feet. The rainfall in this
reservation can only be estimated by the countries adjoin­
ing, which would be from 30 to 36 inches a year.
Climate, —The climate is all that one could ask for, the
temperature in summer seldom going above 100, and in win­
ter rarely going to zero, and really cold weather never last­
ing more than a day or two at a time. The climate is such
that the sweltering heat of other sections is never felt here,
while the nights ar invariably fanned with a breeze that
makes sleep not only possible but refreshing. But little
snow falls, Aand but seldom that ice forms to keep cattle
from drinking from running streams.
Products. —Farmers along the Washita river are this
year gathering a crop of wheat of 20 bushels per acre, and
corn will produce 50 to 60 bushels. These are actual figures
and as the threshers of today are verifying.
Indians, —¡There may be a fear of settling among Indians
in an Indian reservation. These Indians are virtually civilized—entirely so, so far as going to war, or kiling white
people, and old habits are concerned. They have many old

194
habits of idleness, clinging to the native dress, and a dred
of labor of any kind, but they are peaceable, and many of
them are progressive and industrious. Many of the younger
men and women are educa;ted, speak English, and are doing
a greaJt work in inducing the older ones to accept the inevi­
table and follow the white man’s lead.
Place For a Home,—^To the person who chooses to settle
on this reservaition we can assure them a livelihood and a
home with only the thrift and energy he has exhibited in
the land he has left, and if he comes from Missouri, Neb­
raska, or other northern states, of a milder climate, a soil
as rich, and a people as hospitable, cultivated and refined as
those he leaves behind.
County Scats and County Lines,—Under the law appli­
cable to these lands the iSecreltary of Interior has the autho­
rity to divide the above tracts of land into counties, fix the
boundaries thereof, locate the county seats, and reserve 320
acres of land at each county seat for townsite purposes.
This will all be done before the land is opened to settlement.
Parties will therefore know just where to go to reach these
towns. Of course, this cannot be done until after the allot­
ments have been made to the Indians. The lots in these
county seat towns are free to those who go upon them and
improve them, except a very small fee to provide for the ex­
pense of proving up said townsites.
U, S, Land Office.—The Land Offices for these new lands
have noit been located, but this will be done in ample time
for the public, generally, to have knowledge thereof.
When Will These Lands Be Opened,—No one can now
state, definitely, just when these lq«pds will be opened to set­
tlement. The iSecrta^ of Interior is required to make the
allotments within 90 days from the passage of the Act (June
6, 1900,) and in no event shall the making of allotments be
extended beyond six months from the passage of this act
The law further provides thaJt the lands shall be opened to
settlement by the Proclamation of the President, within six
months after the allotments have been made. It is possible
that these lands will be opened during the fall of 1900, but
the general opinion, among those who are be^t posted, is,
that the lands will not be opened until March or April, 1901.

195

INDEX TO MORGAN’S MANUAL.
Acts of Congress,
Act of May 14, 1880, Sec. 3, 11 and 124; Act of June 5. 1900,
Opening the Kiowa, Comanche and Apache reservations, 5
to 8; Act of March 3, 1891, amending Section 2290, 2301, 2289,
2290, Revised Statutes, 8 to 10; Act of May 2, 1890,—Organic
Act, 130; Act of March 3, 1891,—Non-Mineral Lands, 12; Act
of March 2, 1889—Second Entries, 59; Act of March 2, 1889—
Leave of Absence, 51; Act of March 2, 1889—Original Okla­
homa Act, 127; Act of June 5, 1900—Providing for Second
Entries, 58; Act of December 29, 1894—Second Entries, 61;
Act August 30, 1890, 125; Act March 3, 1891, various provi­
sions, 125; Act February 13, 1891, Sac and Fox Lands, 126.

Administrators, 110,
AHotinents,
To Kiowa, and Comanche and Apache Indians, 6;

Actual Settlers,
Land in Oklahoma disposed of to, 131.

Affidavit,
Non-mineral 12; Contest affidavit (See Rules of Practice) 72;

Absence,
Leave of, reference to, 35; Statutory provisions and rules
governing, 51;

Attorneys,
Regulations of Department concerning, 101, 102;

Amending Entries, 46,
Apache, Kiowa and Comanche, 5, 6,
Appeals.
See Rules of Practice 88 to 91, also, 95 to 98; from commis­
sioner to Secretary 98, 99.

Argument,
Of cases before Interior Department, 96;

Agricultural Colleges.
Land Reserved for, 7, 8;

Application.
Simultaneous, 15; To make homestead entry, 11; With affi­
davit of settlement attached, 46; To enter when another has
entered the land, 45, 46; To enter, not contestable, 72;

F
196

Comanche, Kiowa and Apache Treaty.
5, 6, Act of Congress opening to settlement 6 to 8; Townsites 7;

Commutation.
General discussion of, 10, 36, 37; Distinction between com­
mutation under the “general provisions of the homestead
law,” and commutations in Oklahoma under special acts
of Congress 56, 58; organic act, 133; Homestead to Townsites,
146.

Citizenship and Naturalization, 110.
Church.

May convey homestead for church purposes, 11;

Cemetery.

Conveyance of homestead for, 11; cities and towns may pur­
chase public land for, 151;

Conflicting Claims, 45.
Contests.

How to initiate in conflict of settlement rights, 45, 46;
Final proof may be made after contest tried, 70; May be
initiated for any cause affecting the legality or validity of
claim, 72; Dereference right under, 72; Affidavit must be cor­
roborated, 73; Against Heirs, 73; Officer before whom affi­
davit may be made, 73; Affidavit should state grounds of
contest, 73; How jurisdiction acquired, 74; May only be
ordered by Commissioner after flnal certifleate is issued,
74; Notice of, 75; What notice must contain, 75; Appearance
waives notice, 75; Evidence must be confined to charge, 76;
Service of notice, 76; How service is made on Heirs, 76;
Who may serve notice, 77; Service by publication, 77, 78;
Proof of service, 80; Notice of Interlocutory proceedings,
80; Rehearings, 81; Continuances, 81; Depositions and In­
terrogatories 82 to 83; Oral testimony before officers other
than Registers and Receivers, 83; Evidence 86; Evidence
may be taken by Stenographer 87; Appeals, 88, 91; Docu­
ments on file, 91; Reports and Opinions, 91; When authority
of local officers cease, 92; Taxation of costs, 93; Appeals
from decisions rejecting application to enter, 95; Proceed• ings before Surveyors General, 96; Provisions of General
Circular, 104; Form of affidavit, 107.

Commissions.
And fees on homestead entries, 11.

Commissioners.
Under Kansas Townsite Act, 148, 149.

Corroborating Witness, 73.
Continuances, 81,

19:

Crime, 133.
Cities and Towns.
May purchase public land for cemeteries, and park pur­
poses, 151.

Costs, 93.
County Seats.
Reference to, 134; Location of, 144, 138.

County Lines.
Establishing, 145, 138.

Court Commissioners.
Authority to administer oaths, 12, 13.

Cheyenne and Arapahoe Land.
Commutation of, 36; Act opening 134.

Cherokee Outlet.
Commutation of land, 37; Act opening to settlement, 135.

Domicile, 32.
Duress.
What constitutes, 34.

Depositions.
On Interrogatories, 82.

Deserted Wife.
May make homestead entry when. 14.

Entry, Homestead.
How to make, 11; Where to make, 12; Who can make, 13;
In Kiowa and Comanche lands, 14, 15; Simultaneous appli­
cations to enter, 15; When to make, 17; Consists of what, 16;
An appropriation of the land, 16; Amending, 46; Second
entry, general discussion, 55, 64; Second entries in Kiowa
and Comanche lands, 56, 58; Second entries under Act
of March 2, 1899, 59; Second entries under Act of June 5,
1900, 58; Second entries under Act of December 29, 1894, 61;
Second entries, under Departmental Decisions, 62; Contest
of Entry, Rules of Practice, 72;

Evidence.
Irrelevant testimony, 86.

Fees and Commissions.
Under homestead law, 9, 10, 11;

Forms.
Soldiers Power of Attorney, 42; Declaratory Statement, 44;
Relinquishment, 48; Contest affidavit, 107.

Final Proofs.
General discussion of rules governing, 64, 72;

Free Home Act 142.

1

108

Governor of the Territory,

Authorized to locate other lands in lieu of lost school
lands, 8.

109

Minor Heirs,
Of Soldiers, 13, 38; Residence on homestead not required, 34;
Inherit homestead claim when, 35.

Greer County,

Married Women,

Head of a Family,

Naturalization and Citizenship, 52 and 110.
Non-Mineral Affidavit, 12, 134.
Notice of Contest, 75,
Non-Residents,

Laws relating to lands in, 140; Townsites in, 151.

Right to make homestead entry, 9, 13.

Homestead Law.

General statutory provisions, 8 to 11;
Conveyance of homestead, 10; How to initiate right under,
11;
General discussion of entries under, 11 to 16;
Amending entry under 46; Not liable for debt, 109.

May make homestead entry when? 14.

Service of Notice upon, 76 77.

Neutral Strip,

Rights of settlers on, 7.

Husband,

Normal Schools,

Hearing,

Organic Act, 130 to 133,
Probate Judges,

Residence presumed to be with wife, 30;

In contest cases, 74.
Heirs,
Service of notice upon, 76; General provisions, 107, 110.
Irrigation,
Homesteads may be conveyed for Canals, Reservoirs, or
Ditches, for irrigational purposes, 11.

Interlocutory Proceedings, 80,
Insane,
Claimants, who become, 108.

Indian Homesteads, 109,
Judicial Compulsion,

Excuses absence, 35.

Jurisdiction.

Land reserved for, 7, 8.

Homestead affidavit before, 12; Jurisdiction in Townsite
matters, 145, 147, 148.

Pawnee Lands, 137,
Payne County.
Lines of changed, 138.

Preference Right, 72,

Greer County lands, 142.

Pottawatomie Lands.

Act of Congress opening, 134.

Personal Service,

In contest cases, 76.

Kickapoo Lands, 138,
Kansas Townsite Act, 147,
Leave of Absence.

Public Land Surveys, 112 to 124,
Publication Service, 76, 79,
Public Land Strip, 130,
Protests, 72,
Public Buildings, 7, 8.
Public Highways, 133,
Power of Attorney,

Mining Laws,

Publication Notice.

Of Register and Receiver, 74.

Kiowa, Comanche and Apache Treaty,

5, Act of Congress opening to settlement, 6, to 8; Commuta­
tion of, 7, 37.

Reference to, 35; Statutory provisions and rules govern­
ing, 51.

Statutory Provisions, 155; Rules and Regulations, 163;
Statutory Provisions in Kiowa and Comanche Act, 8.

Mineral Affidavit, 12,

By Soliders to file a declaratory statement, 42 to 44.

Under final proofs, (See 64 to 71.)

Rights of Soldiers.

Kiowa, Comanche Act, 7; General discussion of rights, 37
to 45.

1

F
201

200

Railroads.
Right of Way, may convey homestead for, 11; Organic Act,
provisions relative to, 133.

Residence.
On Kiowa and Comanche lands before commutation allow­
ed, 7; Under general commutation law; When claim ini­
tiated by settlement must be established within reasonable
time, 18, 27; When initiated by entry within six months from
date thereof, 27, 28; Rule applicable to Soldiers, 28, 39, 40, 41;
What constitutes residence, general discussion of, 29 to 37.

Relinquishment
47 to 51; Form for, 48.

Rules of Practice, 72 to 103.
Re/'Hearings.
81; Motions for 97 to 98, 103.

Reports and Opinions, 91, 93.
Right of Way.
For Railroads, Canals, Reservoirs, or ditches for irrigation
or drainage across homestead, 11.

Soldiers and Sailors.
Rights of Generally, 37 to 45;
Kiowa and Comanche Lands ,7; Service for 90 days entitles
one to make homestead entry, without regard to age or
citizenship, 13; provisions of Organic Act, 131.

School Lands.
Reservation under Kiowa and Comanche Act, 7, 8; provi­
sions Organic Act, 130; Statutory provisions, 143.

Second Entries.
General discussion of, 55 to 64; Under Kiowa and Comanche
Act, 7, 56, 58; Under Act of June 5, 1900, 58; Under Act of
March 2, 1889, 59; Under Act of December 29, 1891, 61; Under
Departmental Decision, 62.

School.
May convey homestead for school purposes, 11.

Settlement.

Homestead initiated by, 11; General discussion of, IS to 29;
Definition of, 18; What constitutes under old Rule, 19 to 26;
Under Oklahoma Rule, 26 to 27; On town lots, 154.

Sac and Fox Land.
Commutation of, 36; Act opening to settlement, 126.

Soonerism, 52 to 55, 129.
Threats and Violence, 34.
Timber, Necessary, 111.

Tonkawa Lands, 137,
Townsites, 144 to 155.
U. S. Court Commissioner.
Appointment and authority, 12, 13.

Universities.

Lands reserved for Universities, Agricultural Colleges, Nor­
mal Schools, and Public Buildings, 8.

U. S, Revised Statutes.

Sections 2289, 2290, 9; Sections 2288, 11; Section 2294, 12; Sec­
tion 2291, 35; Section 2292, 35; Section 2301, 10, 36; Section 2304,
37; Sections 2305, 2306, 2307, 2308, 2309, 38.

Unmarried Women.
Act June 5, 1900, 111.

Widow.
Of deceased homestead entryman, not required to reside on
the land, 34; Inherit claims from husband, 35.

Women, Unmarried.
Act of June 5, 19C0, 111.

203

202

Application to Enter—Continued.

BRIFF DIGEST.
The following references are to Decisions of the Department
of the Interior. The figures before “L. D,” or before the “hy­
phen,” refer to volume, the figures following to page.

Abandonment«

»

All rights lost by actual, 4 L. D. 267;
Erroneous advice will not excuse, 4 D. D. 166;
Allegations of, should be specific, 4 L. D., 122;
Caused by judicial compulsion not, 13-214, 15-554; 5-6;
Absence in discharge of official duty not, 6-307;
Duress excuses, 6-616;
Family on claim excuses absence, 7-35;
Returning to land in presence of intervening claim does
not overcome. 9-546.
Affidavit must charge abandonment for more than six
months, 10-105;
Charge of, will not lie prior to the allowance of entry, 10510; 13-154;
Absence occasioned by poverty not, 18-42, 113;
Charge of, will not be sustained where it appears that the
entryman’s family resided on the land in his absence, 28121;
Charge of, premature if brought prior to the expiration of
the period given under the law for the establishment of
residence 18-144;

Amendments.

Department liberal in allowing, 2 L. D. 39, 217;
Defective affidavit may be, 2 L. D. 39; 210; 10-181, 407;
Barred by intervening adverse right, 10-105;
May be allowed on suggestion of defendant’s death, 10 D.
D. 261;
Of contest affidavit, 15 D. D. 223, 305, 14 L. D. 447;

Attorney.
Failure to file written authority, 28 L. D. 8;

Appearance.
Special and general, 17 L. D., 159, 393;

Application to Fnter.
Appropriates the land, 3 L. D. 218; 4-365, 455; 10-192, 516; 7-136;
Confers no right upon land embraced within an entry on
record, 15 L. D. 309;
Is not a contest, 15 L. D., 415;

Accompanied with allegations of prior settlement, a hear­
ing shall be ordered determining the rights of parties, 15
L. D. 379; 13 L. D. 502, 381;
May be amended, 28-333;
When time of is uncertain, preference given to settler, 28
L. D. 267;
Law to protect settlement rights by, when prior applica­
tion pending, 28-490;
No rights acquired by, upon land covered by entry, prior
to cancellation, 24-81; 28-515;
To be valid, must be made when land is legally subject to
entry; 17 D. D. 345;
Based upon affidavit executed while land is not subject to
disposal, invalid, 17-529;
Second should be held in abeyance, pending disposition of
first, 17-148, 592;
Filing contest within three months after date of settle­
ment protects settlers rights, 17-345;
Rule of local ofiiice regulating presentation of, conclusive
upon party acting thereunder without protest, 18-14;
To enter, pending an appeal, if legal,reserves the land,18-45;
When appeal rejected, no rights acquired under, 18-14;
Party entitled to notice of, in writing, 18-6;
Preliminary affidavits of,’ accompanied, should not be exe­
cuted before land is legally subject to entry, 18-482;
Must be accompanied by proper affidavit, 18-557;
May embrace land in two land districts, by filing appli­
cation in each district, 20-412;
Equivalent to an entry so far as rights of applicant con­
cerned, 20-535, 288;
Properly rejected does not reserve the land even though
appeal is taken; 29-93; But a differnt rule applies, if im­
properly rejected, 20-135j
To enter that embraces in part land not subject to entry
does not defeat the right of applicant to the land open to
entry, 21-344; But in such case the party should appeal
from the rejection of his application, 21-208;
In determining the time, a successful contestant on the
ground of prior settlement, has, in which to make entry
after notice of cancellation, the time between his original
application to enter, and the date of the legal notice of
cancellation should be excluded from the three months
allowed by law, 26-1;
To enter, embracing in part, land covered by prior entry
of another, while pending, serves to protect the rights of
applicant as to lands opened to entry, 26-159;
Application by mail, 27-113;
Where entry is under contest, no rights are acquired, prior
to cancellation of entry in local office, 29-29;

205

204

Appeal,
Will not lie from interlocutory order, 11-84;
All rights are lost by failure to, 11-416, €60, 179; 15-37;
In the absence of, decision of local office final as to facts,
11-300; 14-574, 230; 13-697; 18-409;
Specifications of Error, 10-111; 11-214; 15-563;
Copy of, must be served on opposite party, 11-219, 395, 403;
Notice of, must be served, 10-546, 408, 595; 11-214; 14-428;13225; 14-452; 18-421;
Pendency of, precludes entry of land, 10-15;
Pending, Local Officers should take no action, 9-59, 281, 299,
326, 578.
Must be filed in time, 9-C68;
Ten days additional time allowed when notice of decision is
given by mail, 9-438; 14-352; 13-136, 150;
Waiver of right of, 9-29;
Time for, 15-249;
Cannot from interlocutory order, 14-696;
Time for, cannot be extended, 14-423;
When mailed must reach the local office within time al­
lowed, 28-8;
Local Office should notify party of his right of, 28-315;
Service of, in time if copy is mailed to opposite party
within time allowed for filing appeal, 18-543; 21-35, 234;
Failure to serve notice of, not excuse or plea of ignorance
of the law and rules of practice, 22-88;

Alienation.
Agreement to convey land covered by homestead entry,
made prior to submission of final proof will defeat the
right of entryman to perfect his entry, 24-79, 155, 337;
Agreement to sell for townsite purposes prior to entry il­
legal, 26-708;

Alien.
May acquire no right by settlement, 1-445, 449; 3-452; 4-139,
166; 6-98; 8-60, 289; 10-463; 13-242; 14-568, 634;
May file valid contest, 17-503;
Homestead entry by, not void, but voidaable, 22-124;-

Agent.
Settlement right cannot be initiated by, 2-173, 175;
Residence cannot be established by, 2-146, 148;

Costs.
Rule 55 requires each party to pay costs of taking testi­
mony of his own witnesses, 18 L. D. 559.

Commutations.
Right of, depends upon compliance with the law up to date
of commutation, 29 L. D. 260.

Continuance.
Action of local officers will not be interferred with, if
abuse of discretion does not appear, 22 L. D. 22.

Contest.

Simultaneous application to, awarded to highest bidder, 14506;
On charge of sale of land, 28 L. D. 315;
Against Heirs for failure to cultivate, 28 L. D. 5;
During pendency of, on ground of prior settlement, both
parties required to comply with the law as to residence,
28-580;
On charge of death of entryman leaving no heirs, compe­
tent to inherit, 28 L. D. 136;
Will not lie against declaratory statement, 18 L. D. 494;
Failure to exercise preference right within statutory period
defeats the same in presence of intervening claim, 21 L.
D. 542;
Contestant takes nothing under a relinquishment, not the
result of his suit, 21 L. D. 333;
On ground of priority of settlement, fails unless allega­
tions established by preponderance of evidence, 23 L. D. 50,
201, 400; 24-584, 189; 25 L. D. 273;
After the expiration of five years under a homestead entry
charge of abandonment will not be entertained, if entryman has complied with the law to that date, 24 L. D. 398;
May be entertained on charge against an approved Indian
allotment, 24 L. D. 264;
On prior settlement, contestant must show establishment
and maintainance of residence, 25 L. D. 103, 279, 329;
A preferred right to homestead entry cannot be secured
through a contest instituted by a single woman if she mar­
ries, prior to the exercise of such right, 29 L. D. 297;

Deserted Wife.

A deserted wife who remains on the land may show willful
desertion of husband and is entitled to a judgment of can­
cellation, with preferred right to enter, 18-9;

Depositions.

Certificate of officer need not show that he read over to
the witness the whole of the deposition, questions and an­
swers, 25 L. D. 143;
Commission should be signed by both Register and Re­
ceiver, 25 L. D. 438;
Depositions taken and transmitted to the local office may
be used at trial by either party to the issue whether taken
by such party or his adversary, 29 L. D. 581;

1

r
20:

206

Deposition - Continued.
In contest for preference right, contestant must pay costs,
including costs of depositions taken by defendant, Menden­
hall vs. Cagle, 30 L. D.
Under our Territorial Law, pages 372, 374, and under the
Act of Congress approved March 3, 1891, (See Morgan’s Man­
ual p. 145,) and under the decision of our Territorial Su­
preme Court (See Finch vs. U. S. 1 Okla., 396,) a witness
may be compelled to appear before the Probate Judge and
give his deposition in behalf of contestant, in a case on
trial before the U. S. Land Office.

Evidence,
In hearing to determine prior right, when no entry has been
allowed, the burden of proof cannot be said to rest upon
either party, 28 L. D. 169;
Local officers may summarily stop obviously irrelevant
questioning, or, in their discretion allow the same to pro­
ceed at the cost of party making same, 18 L. D. 559;
Local Officers not authorized to exclude testimony, 21-54;
Plaintiff not entitled to have claimant put on witness stand
for cross examination in final proof, 21 L. D. 458;
On proper notice. Local Officers may inspect premises, and
upon the information thus obtained reach their conclusion,
24 L. D. 277;

Entry.
Failure of record to show cannot defeat, 28 L. D. 335;
Not invalid when allowed in absence of Register, 28 L. D. 28;
Application to amend, largely in discretion of land Depart­
ment 28 L. D. 337;
Second, may be allowed when, 28 L. D. 259.

Fees.

Tender of not required when land applied for is covered by
prior adverse entry, 18-75;

Final Proof.

Under instructions from Commissioner General Land Office,
time for making final proof not affected by passage of what
is known as Free Home Act. In other words settlers have
benefit of various extensions which have been made. See
circular 30 L. D. p----------;
Under Section 2, Act of March 2, 1895, Chief Justices in
Territories authorized to appoint “U. S. Court Commis­
sioners,” who are especially authorized to administer
oaths in preliminary affidavits and final proofs required un­
der homestead and other land laws, but no commissioner
shall be appointed who resides within thirty miles of any
local land office or any other commissioner. See 28 Stat.
L. 744.

Greer County.
Rights of settlers who have had benefit of homestead law
to perfect title to lands under Act of March 1, 1899, 22 L.
D. 274;
Right to purchase additional lands under Section 1, Act of
January 18, 1897, is not limited, by any requirement that the
tracts so purchased should be contiguous, 29 L. D. 532.
i

Heirs.

Where entryman and his widow die before final proof, un­
der Sec. 2291 of R. S., adult as well as minor children in­
herit, 22-403;
On the death of entry-woman leaving minor children, the
father of such children having died, prior to the allowance
of the entry, the fee to said land vests in said minor child­
ren, Section 2292, Revised Statutes, irrespective to any ques­
tions as to their heirship under local statutes, 29 L. D. 325.

Homestead Law.
Parties in Oklahoma not disqualified unless he owns 160
acres of land, 28 L. D. 187;
Party acquiring 160 acres of land after settlement and be­
fore entry is disqualified, 28 L. D. 198;

JurisdictionDepartment holds until patent and may correct an error,
prior to that time, 28 L. D., 209, 390; 21 L. D. 491;
May be raised at any time, 17 L. D. 532;
Of local office is required by notice, 24 L. D. 383.

Leave of Absence.
On proper showing a second year’s leave of absence may be
granted 23 L. D. 200;
Not accorded settlers who have no claim of record, 27 L.
D. 317;
Leave of Absence is not protection against contest for
abandonment where the entryman prior to such leave has
failed to comply with the law, 29 L. D. 154, 203.

Married Woman.
Where an application of a married woman, if erroneously
rejected the marriage of applicant will not disqualify her
to make entry as of the date of application. 18 L. D. 45;
Where wife maintains residence on the land, no one but
• her will be heard to allege desertion in proof of his aband­
onment, 21 L. D. 152.
A single woman contesting for preference right, who mar­
ries during the pendency of contest is disqualified to make
entry, 29 L. D. 297.

20S

Naturalization»
A married woman an alien by birth, whose husband has
declared his intention to become a citizen occupies the
status of one who has filed his declaration, 18 L. D. 528;
The child of an alien occupies the status of one who has
filed his declaratory of intention where the father during
the minority of such children declares such intention, 29
B. D. 497;
Rights acquired by declaration of intention may be lost
by abandonment, 29 L. D. 627.

Notice»
Service upon attorney in fact not sufficient, 28 L.
361;
Service of, defective, when further showing as a basis for
publication necessary, 28 B. D. 279.
In computing of, date of when service is made will be ex­
cluded and the time counted from the next succeeding
day, 21 L. D. 164.

Protest»
May be dismissed if not properly corroborated, 17 L. D. 108.

Publication Service»
If any error occurs in service of publication which makes
necessary a re-publication, a new set should be filed as a
basis of an order therefor, 29 L. D. 693.

Rehearing»
Not allowed by plea of poverty ,17 B. D. 116.

Relinquishment»

Holder of, not allowed to contest the entry covered thereby,
18 B. D. 144, 358;
May be made as to part of entry 22 B. D. 128;
Executed to secure a debt, 22 B. D. 398;
Filed after the initiation of a contest will not defeat the
preferred right of contest, 29 B. D. 171;
The administrator of a deceased ei^tryman no authority to
relinquish, 29 B. D. 565.

Residence»

One claiming by settlement must maintain, 28 B. D. 169, 266,
480;
Continuity of, not affected by absence, resulting from ill­
ness and in necessity of earning money, 28 B. D. 503;
Absences to earn money does not impeach good faith of,
17 B. D. 1;
•
Where wife refuses to reside upon homestead husband may
establish and maintain residence thereon without her, 21
B. D. 113;
Poverty will not excuse failure to establish, 25 B. D. 44;

Residence—Continued»
While an application is pending, the charge of abandon­
ment will not lie,—an applicant need not reside on the land,
26 B. D. 219;
If entryman fails to maintain the continuity of his resi­
dence during pendency of contest involving priority of set­
tlement, his laches cannot be cured by the presumption of
residence, prior to the institution of proceedings by the ad­
verse settler charging said default, 29 B. D. 254, 203.

Settlement»
Rights between one who settles with knowledge that
another has purchased improvements and has gone to the
land office to file, 28 B. D. 547;
Rights of one who settles upon land under agreement with
the entryman to relinquish, 28 B. D. 369;
Tenant cannot make valid, 28 B. D. 395;
In the presence of an intervening adverse entry poverty
will not excuse a settler who fails to make entry within
three months from the date of, 28 B. D. 86.
A finding of simultaneous does not authorize an arbitrary
division of the land, nor award to highest bidder, 23 B. D.
201, 400;
Made by one who has an existing homestead entry must
be held valid, where the settler is entitled to make a sec­
ond entry. 23 B. D. 440;
Notices defining extent of claim posted outside of technical
quarter sections defeat of, 17 B. D. 197;
As against an intervening entry one claiming by settlement
must assert his right by filing a contest within three
months after settlement, 29 B. D. 201;
A posted notice on the claim that covers the land in dif­
ferent sections will not protect such claim for subdivisions
outside the section on which said notice is posted, 29 B. D.
197;
Posted notice of extent of claim that embraces land in frac­
tional quarter section, posted on the subdivisions not oc­
cupied and improved by the settler, serve to protect his pri­
ority right thereto, 29 B. D. 197;
In case of claim for land in different fractional quarter sec­
tions and surveys for lots, the notice of the extent of claim
given by occupancy and improvement is limited to the par­
ticular lots occupied and improved, 29 B. D. 197.

Soldiers and Sailors»
In computing the time which a soldier has to establish resi­
dence after filing his declaratory statement, the day of fil­
ing the declaratory should be excluded and the last day of
specified period included, 24 B. D. 38.

210

Second Entries.
Section 10, Act of March 3, 1893, makes the provisions of
section 15, Act of March 2, 1889, applicable to lands in the
Cherokee Outlet, not only as. to the manner of opening the
lands but also as to the qualifications of claimants therefor,
29 L. D. 108, 246;
•
The right of second entry as provided by Section 13, Act
of March 2, 1889 (Identical with clause in Kiowa and Com­
anche Act, See page 7) is determined by status of applicant
at the time of his application, and if at any such time he
has attempted to secure title, under the law existing at
the passage of such act but failed, he is qualified as entryman thereunder, 29 L. D. 246, 372.

Townsitcs.

u
0

<D

When entered under Section 22 Act of May 2, 1890, and after­
ward vacated, may be re-entered, in certain cases by origi­
nal entryman, 29 Stat. L. 116.

U. S. Court Commissioners.
Under Section 2, Act of March 3, 1895, Chief Justices in Ter­
ritories authorized to appoint “U. S. Court Commissioners,”
who are especially authorized to administer oaths in pre­
liminary affidavits and final proofs required under home­
stead and other land laws, but no commissioner shall be
appointed who resided within, thirty miles of any local
land office or any other commissioner. See 28 Stat. L. 744.

13
O

^.2

O

Si *
Bo

<p

<p o5 rP
p. 4-t o5
o5 53 33
<L> <p
tn 'O
P ■4-J
c <u O t/i
P. o
<8
tn S3
>
g -

£
0
E

cz)
a

o

co

■
.2 4-.
a

Q.

O
£

CO

Cj
h -T g 5
05 hJO »S 53
a — 2
2 J-2
;3

a3W
£

c
0

c
0
<

s
o

J in

* S

■ (0
! 2
¡0

a

bjo o

®

U

®® ® ®

co

05
,13

<5?®

E
o
o

4l > vM.^W.’MàNBsiaL-jiFrcsident
A►

A. <1. SEAY, Vice-President

W. J> HORSFALL, Cashier

--ft , I

Guthrie National Bank
Capital, $50,000

Surplus, $10,000
Ì

*4i

I

FIRST NATIONAL BANK ORGANIZED
IN OKLAHOMA

1^

---------------- GUTHRIE, OKLAHOMA

I