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Morgan’s Manual
of the U nited States.,.

Homestead, Townsite
and Mining Laws.

PUBUSHED BV

HUDSON KIMBERLY PUB. CQ.
KANSAS CITY, MISSOURI.

MORGAN’S MANUAL
OF THE UNITED STATES

Homestead, Townsite
AND

Mining Laws.

BY

DICK T. MORGAN.
OF THE

PERRY BAR,
Perry, Oklahoma.

KANSAS CITY, MO. :
HUDSON-KIMBERLY PUBLISHING COMPANY.
1900.

La RTTRR
FROM THE
SECRETARY OP

Copyright 1891 by
DICK T. MORGAN.

Copyright 1893 by
DICK T. MORGAN.

Copyright 1900 by
DICK T. MORGAN.

THE INTERIOR.

Hon. John W. Noble, wben Secretary of tbe In­
terior, said of “Morgan’s Manual”:
DEPARTMENT OF THE INTERIOR,
Washington, Sept. 11, 1891.
Dick T. Morgan, Esq.., Attorney at Law, Guthrie,
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 as­
signed to this Department, and the attorneys act­
ing with him, they have expressed their favorable
opinion, and think it ought to he well com­
mended 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 me, if you please,
live additional copies, for which I shall expect to
reimburse you.
Yours trulv,
(Signed)
JOHN W. NOBLE,
Secretary.

Kiowa and Comanche Treaty.
Morgan’s Manual.
OPINIONS

OF

PROMINENT

OFFICIALS.

Hon. C. M. Barnes, Governor of Oklahoma, and exBeeeiver 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.”
Hon. John T. Dille, ex-Register of the U. S. Land
Office, Guthrie, says: “I regard it the best work of the
kind published. Tt should be in the hands of every home­
steader and every land office practitioner.”
Hon. J. C. Delaney, Receiver of Land Office, Oklahoma i
City, says: “All seekers after correct information should
possess themselves of a copy of your ‘Manual.’ ”
Hon. J. C. Roberts, Register U. S. Land Office, King­
fisher, Okla., says: “I know it will be of great value to
persons having business before local land offices.”
Hon. John W. Scothorn, Special Agent of the General
Land Office, Washington, D. C., says: ‘‘It should be in
the hands of every homesteader.”
Hon. J. V. Admire, Receiver U. S. Land Office, King­
fisher, Okla., says: ‘‘It seems to me that this work is ex­
actly what is needed for the use of the general public.”
Hon. S. L. Overstreet, ex-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 tribes of
Indians for these lands:
‘‘ARTICLE I. Subject to the allotment of land, in sev­
eralty, to the individual members of the Comanche,
Kiowa, and Apache tribes of Indians in the Indian Ter­
ritory, as hereinafter provided for, and subject to the
setting apart as grazing lands for said Indians, four hun­
dred and eighty thousand acres of land as hereinafter pro­
vided for, and subject to the conditions hereinafter im­
posed, and for the considerations hereinafter mertioned
the said Comanche, Kiowa, and Apache Indians hereby
cede, convey, transfer, relinquish, and surrender forever
and absolutely, without any reservation whatever, ex­
press 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 Ter­
ritory, to-wit: Commencing at a point where the Washita
River crosses the ninety-eighth meridian west from Green­
wich; 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 established: 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 of Red River; thence down said north fork, in
the middle of the 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 intersection
with the ninety-eighth meridian of longitude west from
Greenwich; 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 mem­
ber of these tribes.
‘‘ARTICLE III. Article III. provides that the Secre­
tary 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 sub­
serve the interests of said Indians. And said article fur­
ther provides that the allotments shall not be taken unon
sections sixteen (16) or thirty-six (36), unless an Indian has
made improvements upon sa:’d section.
‘‘ARTICLE IV. J\rticle IV. refers to the time in which
the allotments may be made. But this seems to be con­
trolled by the Act of Congress hereinafter quoted.
5

“ARTICLE V. Article V. provides that the allotments
shall be held in trust for the allottees, for a period of
twenty-five years, at which time title to said land shall
be conveyed in fee simple to the allottees.
“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
Congress
“ARTiCLE VIII. Article VIII. refers to the manner of
taking allotments.
“ARTICLE IX. Article IX. refers to the leases in
force, at the time of the ratification of Congress of this
agreement.
“ARTICLE X. Article X. provides for making allot­
ments to certain individuals.
“ARTICLE XI. Article 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
opening of said lands:
Allotments.—

Said agreement be, and the same hereby 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, pro­
vided 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
the direction of the Secretary of the Interior to said In­
dians within ninety days from the passage of this Act,
subject to the exceptions contained in article four of said
treat3)"j Provided, That the time for making allotments
shall in no event be extended beyond six months from
the passage of this Act.
Homestead and Townsite Laws Made Applicable.—

That the lands acquired by this agreement shall be
opened to settlement by proclamation of the President
within six months after allotments are made and be dis­
posed of under the general provisions of the homestead
and townsite laws of the United States.
Cost of Land.—

Provided, That in addition to the land office fees pre­
scribed by statute 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 homestead 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 pay­
ment 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,
6

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.
Persons Wlio Have Failed to Secure Title, or Com­
muted Entries.—

And Provided, Further, That any p.erson 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 known as the commuted provision
of the homestead law, shall be qualified to make a home­
stead entry upon said lands.
Settlers on Lands Lying Contiguous.—

And Provided, Further, That any qualified entryman
having lands adjoining the lands herein ceded, whose
original entry embraced less than one hundred and sixty
acres in all, shall have the right to enter so much of the
lands by this 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 “Neu­
tral Strip” shall have preference right for thirty days on
the lands upon which they have located and improved.
Sections 16, 36, 13, and 33 Reserved.—

That sections sixteen and thirty-six, thirteen and thirtythree, of the lands hereby acquired in each township shall
not be subject to entry, but shall be reserved, sections six­
teen and thirty-six for the use of the common schools,
and sections thirteen and thirty-three for university, agri­
cultural colleges, normal schools, and public buildings of the
Territory and future State of Oklahoma; and in case either
of said sections, or parts thereof, is lost to said Territory
by reason of allotment under this Act or otherwise, the
governor thereof is hereby authorized to locate other
lands not occupied in quantity equal to the loss.
Mining Laws in Force.—

That should any of said lands allotted to said Indians,
or opened to settlement under this Act, contain valuable
mineral deposits, such mineral deposits shall be open to
location and entry, under the existing mining laws of the
United States, upon the passage of this Act, and the min­
eral laws of the United States are hereby extended over
said lands.
Payment of Money to Indians.—

That none of the money or interest thereon which is,
by the terms of the 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 pro­
vide for the adjudication and payment of claims arising
from Indian depredations.”
By the above Act, Congress has provided that these
lands shall “BE DISPOSED UNDER THE GENERAL
PROVISIONS OP THE HOMESTEED and TOWNSITE

laws,” and “SHALL BE OPEN TO LOCATION AND
ENTRY UNDER THE EXISTING MINING LAWS OP
THE UNITED STATES,” upon the passage of the Act,
and that “THE MINERAL LAWS OP THE UNITED
STATES ARE HEREBY 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 valuable 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.

THE HOMESTEAD LAW.
The homestead 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:
SECTION 5. That Sections 2289 and 2290, in said chapter
numbered 5, of the Revised Statutes, be and the same are
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 filed his declara­
tion of intention to become such, as required by the nat­
uralization laws, shall be entitled to enter one-quarter
section, or a less quantity, of unappropriated public lands
to be located in a body in conformity to the legal sub­
divisions of the public lands; but no person who is the
proprietor of more than 160 acres of land in any state or
territory shall acquire any right under the homestead law.
And every person owning and residing on land may, under
the provisions of this section, enter other land lying con­
tiguous to his land which shall not, with the land so
already owned and occupied, exceed in the aggregate 160
acres.”
The above section is in force generally in the United
States, but by Act of May 2, 1890 (see Index, “Act of May
2, 1890”), Section 20, one cannot enter land in Oklahoma Ter­
ritory Who owns one hundred and sixty acres or more of
land in any state or territory.
“SEC. 2290. That any person applying to enter land
under the preceding section shall first make and sub­
scribe before the proper officer and file in the proper land
office an affidavit that he or she is the head of a family,
or is over twenty-one years of age, and that such applica­
tion is honestly and in good faith made for the purpose of
actual settlement and cultivation, and not for the bene­
fit of any other person, persons or corporation, and that
he or she will faithfully and honestly endeavor to comply
with all the requirements of the law as to settlement,
residence and cultivation necessary to acquire title to
the land applied for; that he or she is not acting as agept
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 thereon: that he or she
does not apply to enter the same for the purpose of specu­
lation, but in good faith to obtain a home for himself or
herself, and that he or she has not directly or indirectly

8

made, and will not make any agreement or contract in any
way or manner, with any person 04; persons, corporation
or syndicate whatsoever, by which the title which he or
she might acquire from the government of the United
States should inure, in whole or in part, to the benefit
of any person, except himself or herself; and upon filing
such affidavit with the register or receiver on payment of
$5 when the entry is not more than 80 acres, and on pay­
ment of $10 when the entry is for more than 80 acres,
he or she shall thereupon be permiited to enter the
amount of land specified.”
In addition to the fee of $5 for an 80-acre tract and $10 for
160 acres, there is also charged at the time of entry a
“commission” of $2 on an 80-acre tract and $4 on 160 acres.
Therefore, an entryman must pay $7 fees and commis­
sions on 80 acres and $14 on 160 acres. At the time of mak­
ing final proof which means the time one makes the proof
of his residence and improvements necessary to acquire
title, he must also pay for 80 acres, additional fees and
commissions of $2, and for 160 acres $4, additional fees
and commissions. With some exceptions the above applies
to Oklahoma lands and a large number of states. In
lands within the limits of certain railroad grants, and in
states and territories west of Kansas, Nebraska and the
Dakotas, the fees and commissions are some higher.

COMMUTATION.
SEC. 6. That Section 2301 of the Revised Statutes 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 avail
himself of the benefits of Section 2289 from paying the
minimum 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 South Dakota, but shall not relieve said settlers
from any payments now required by law.”
The fourteen months’ clause does not apply to all the
lands in Oklahoma. To determine the length of residence
required, before title can be acquired, reference should
be made to the special act applicable to the land entered.
CONVEYANCE OP HOMESTEAD.

By same act Section 2288 was amended to read as
follows:
SEC. 3. That Section 2288 of the Revised Statutes be
amended to read as follows:
“SEC. 2288. Any bona fide settler under the pre-emption,
homestead or other settlement law shall have the r’ght
to transfer, by warranty against his own acts, any por­
tion of his claim for church, cemetery or school pur­
poses, or for the right of way of railroads, canals, reser­
voirs, or ditches for irrigation or drainage across it; and
the transfer for such public purposes shall in no way

9

vitiate the right to complete and perfect the title of his
claim.”
SECTION 3, ACT MAY 14, 1880. That any settler who
has settled, or who shall hereafter settle, on any of the
public lands of the United States, whether surveyed or
unsurveyed, with the intention of claiming the same un­
der the homestead laws, shall be allowed the same time
to file his homestead application and perfect his original
entry in the United States Land Office as is now allowed
to settlers under the pre-emption laws to put their claims
on record, and his right shall relate back to the date of
settlement, the same as if he settled under the pre-emption
law.
Approved May 14, 1880.
HOW

TO

INITIATE

HOMESTEAD

RIGHT.

There are two ways by which to initiate a right to a
tract of land under the homestead law. These are, first,
by Entry; second, by Settlement.
To these might be
added a third, the right given to the ex-Union soldiers and
sailors, to initiate their claims by filing, in person, or
by agent, a Declaratory statement. These will be treated
in the order named.
HOMESTEAD 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 homestead 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 statutes applicable to
Oklahoma.

good cause from personal attendance at the district 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 dis­
tance, 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
transmit the same with the fee and commission to the
Register and Receiver.”
The Department of the Interior has held that under
the above statute Probate Judges, being their own clerks
are qualified to administer the oath, in homestead affidav­
its in proper cases, coming under the above statute. Un­
der Section 2, Act of Congress anproved March 2, 1895,
“United States Court Commissioners,” appointed by the
chief justice of the territorial supreme court, are author­
ized to administer oaths under the above section, the
same as United States Circuit Court Commissioners.
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 “commis­
sioners of the U. S. circuit courts.”
Wlio Can Make Homestead Entry.—

Prior to Act of May 26, 1890 (10 L. D. 688), the entryman must go in person before the Register and Receiver
at the land office and make the homestead affidavits, un­
less the family of the applicant or some member thereof
was actually residing on the land and the applicant being
prevented by reason of distance bodily infirmity or other

Every person who is the head of the family or who
has arrived at the age of twenty-one years, who is a citi­
zen of the United States or who has declared his inten­
tion to become such, may make homestead entry in Okla­
homa, 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 homestead entry or
filing one declaratory statement, but there are exceptions
to this rule, which will be treated of under “second en­
tries.” 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. Sny­
der, 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, entitles
one to make a homestead entry without regard to age or
citizenship. R. S. U. S., Section 2304. If the soldier ba
dead his widow, and if she be dead then his minor heirs,
by guardian duly appointed and credited at the Depart­
ment in Washington, may make homestead entry and
have all the benefits of Section 2304. See R. S. U. S., Sec­
tion 2307.

10

11

Examination of the Land.—

It is not necessary to examine the land before making
homestead entry, except entries upon lands held to be min­
eral lands. By Act aproved March 3, 1891 (see Index, Act
March 3, 1891), the lands in Oklahoma were declared to
be non-mineral lands. Hence as a rule, lands in Okla­
homa may be entered without first viewing the lands. But
by Act of Congress, approved June 6, 1900, opening the
Kiowa, Comanche, and Apache lands to settlement, the
mining laws of the United States were extended over
these lands, and following the ordinary rule in such cases,
persons desiring to make homestead entries of these lands
will be required to make the non-mineral affidavit, which
is in substance to the effect that a personal examination
of the land has been made, and that there are no indica­
tions of minerals on the land.
Wliere to Make Entry.—

A married woman, the head of a family or one deserted
by her husband, is a qualified homesteader.
Kamanski vs. Riggs, 9 L. D. 186.
Wilbur vs. Goode, 10 L. D. 527.
Who Can Make Entry
manche Lands?—

In

tlie

Kiowa

and

Co­

Generally, any person may make homestead entry of
the lands in the Kiowa, Comanche, and Apache coun­
try, 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 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 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 homestead rights, by
making an entry prior to the passage of the act. As is
well known, generally speaking, one homestead entry ex­
hausts the right. A proviso, similar to the above, was
a part of the act which opened to settlement and entry
the Iowa, Sac and Fox lands, and has received a construc­
tion by the Department. Under the first clause of the
proviso any person who, prior to the approval of the act,
has reliquished his homestead entry, is qualified to make
a homestead entry upon the lands in the Kiowa and
Comanche country.
There is more difficulty, however, with the second
clause of the proviso, which provides that any person
“who made entry under what is known as the commuted
provision 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 Interior that Section
2301, of the Revised Statutes of the United States, is “the
commuted provision of the homestead law”; and the Sec­
retary of Interior held that a person who “commuted” his
homestead 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
under Section 2301. It is very doubtful, therefore, 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 L. D., page 46. Clark had made entry of a
tract of land in that portion of Oklahoma opened to set­
tlement April 22, 1889.
Prior to the opening of the Sac
and Pox lands, Clark commuted his homestead entry.
The Act of Congress opening the Sac and Pox reserva­
tions to settlernent, among other things, provided that 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.

12

Clarks’ application to make entry was rejected by the
Department of Interior on the grounds that Clark had
commuted under Section 21, of the Act of May 2, 1890.
and not under Section 2301, of the Revised Statutes 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 com­
muted in Oklahoma under special acts not to be granted
the same privilege in these new lands which is granted
to the settlers who have commuted under the general
section. Possibly the former ruling of the Secretary may
be modified or reversed.
Siniiiltaneou.s Application.—

It sometimes happens that two persons apply to enter
land at the same time in which case the rule is as follows:
First. Where neither party has improvements on the
land the right of entry should be awarded to the highest
bidder.
Second. When one has actual settlement and improve
ments, and the other has not it should be awarded to the
actual settler.
Third. Where both allege settlement and improve­
ments, an investigation must be had and the right of
entry awarded to the one who shows prior actual set­
tlement and substantial improvements so as to be notice
on the ground to any competitor.
(See General Uand Office Circular, 1829, page 10, also
Helfrich vs. King, 1 Coup’s U. U. p. 378.)
The above rules will indicate the importance of making
settlement and improvements prior to entry.
Entry an Appropriation.-

The entry of the land is an appropriation of H. It is
thereby segregated from the public domain. It is not
subject to entry or valid settlement by another, and the
entryman acquires an inchoate right—an equity in the
land which can not be defeated, except by failure on the
part of the entryman, to comply with the law, provided,
of course, that the land was not appropriated prior to
the entry by settlement of another,
Attorney General MeVeah. 1 U. D. 30: Graham vs H
8r. D. R. R. Co., MT^. D. 362; Wolf vs. Struble, 1 L. D. 449:
Began vs. Thomas et al., 4 L. D. 441: Schrotberger vs
Arnold, 6 U. D. 425: Grove vs. Cook. 7 U. D. 140.
Entry consists of three things, viz.: The appl’cat’on,
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 ric-hts there­
under. Gilbert vs. Spearing, 4 L. D. 463; Iddings vs.
Burns, 8 U. D. 224.
HOMESTEAD BY

SETTLEMENT.

Having considered the first method, viz.: By entry,
we will now consider the second method of initiating a
homestead 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. Christe'
sen vs. Mathorn. 7 D. D. 537.
13

The third section of the act approved on that date

provided:
SEC. 3. That any settler who has settled, or who shall
hereafter settle on any of the public lands of the United
States, whether surveyed or unsurveyed, with the inten­
tion of claiming the same under the homestead law, shall
be allowed the same time to file his homestead applica­
tion and perfect his original entry in the United States
land office, as is allowed to settlers under the preemp­
tion laws.
By reference to the preemption law, U. S. R. S., Section
2265, we find that the settler has three months from dat*^
of his settlement in which to make his filing. 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, 1 U. D. 83; Wolf vs. Struble, 1 L. D.
449; Watts vs. Forsyth, 5 L. D. 624; Christesen vs. Mathorn,
5 U. D. 537; Watts vs. Forsyth, 6 L. D. 306; Way vs. Matz,
6 L. D. 257.
By settlement one acquires an inchoate interest in the
land—of equal importance and validity of an entry—which
his heirs inherit in case of death before entry.
Make Entry within Three Months.—

It is very important that the entry be made within
three months from date of settlement. A failure to make
entry within three months from date of settlement will
open the land to the next settler cr claimant who has com­
plied with the law. Sickness, poverty, distance, neglect,
oversight, mistake, unexpected delay—in short, no excuse
has been accepted by the department, providing there is
a valid adverse claim has attached either by settlement or
entry.
Bishop vs. Porter, 2. L. D., 119.
Same Case, 3 L. D., 103.
Watts vs. Forsyth, 5 L. D., 624.
Same Case, 6 L. D., 306.
Crestensen vs. Mathorn, 7 U. D., 537.
Ways 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 L. D., 653.
Residence to Follow.—

The settler should then proceed within a reasonable time
—within thirty days if possible—to establish his actual res­
idence upon the land. If the settler has a family, he should
remove his family to the claim with him, but if his circum­
stances 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 initi­
atory acts of settlement and there is another person claim­
ing the land by virtue of settlement, he should establish
residence on the land as soon as possible. He should not
take six months in which to establish his residence on
the land, after entry. To do so 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
14

fact made the first settlement, would lose the land, by
reason of not following his settlement with residence with­
in reasonable time.
Settlement Defined.—

Want of knowledge as to what constituted valid set­
tlement—settlement that appropriated the land—and re­
served it from the claims of others, has caused many
much trouble, great annoyance, expensive litigation, and
finally the loss of a home.
The settlement of the land in Oklahoma has led to the
promulgation of a new rule or definition of settlement.
In other words, the Department of the Interior has, by
various decisions, held that the circumstances under which
the lands in Oklahoma and in some of the western states
recently have been opened to settlement, have made it nec­
essary to modify the old rule. It is now well settled that
where lands are opened under such laws and regulations
that make it necessary for the settlers to make a rape for
the lands, the Department will take these circumstances
into consideration and not require settlers to perform
such acts as would constitute valid settlement under the
old conditions where men could go deliberately, and ini­
tiate their settlement rights. Persons who contemplate
taking claims by settlement should, however, clearly under­
stand the old rule and for this reason we will first pre­
sent this. It should be borne in mind that the old rule
is still in force except when the settlement right is initiated
upon the day of the opening, or so near it, or under such
circumstances, as make it equitable to apply the new
rule.
SETTLEMENT 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 settle­
ment must do something in the nature of reducing the
land to his possesssion, or of exehcising 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 Gen­
eral Mason, to the effect: “From the moment, therefore,
that he (the preemption claimant) enters in person on
land open to such a claim with the animus manendi, or
rather with the intention of availing himself of the pro­
visions of the act referred to, and does an act in execu­
tion of that intention, he is a settler.’’ One can not
make settlement by agent. He must go upon the land in
person. No amount of improvements will avail anything
in the absence of personal presence on the land. McLean
vs. Foster, 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
15

laws, and the doing of some act equivalent to the public
announcement of his claim, so that his purpose will be
manifest. 10 C. B. O. 6.
An “actual settler’’ is one who goes upon the land
specified with the intention of making it his home under
the settlement laws, and does some act in execution of
such intention sufficient to give notice thereof to the pub­
lic. U. S. vs. Atterberry, 8 B. D. 173; By tie 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 B. D. 582. One of
the objects of settlement is to give notice to all comers
that the tract settled 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 char­
acter of permanency with the intent to appropriate it
under the law. Howden-Piper case, 3 B. D. 162 and 294.
Residence must follow settlement within 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 fol­
lows the act immediately with acts of greater importance,
with improvements of more substantial nature, and con­
tinues on within a reasonable time, by the erection of a
habitable house, cultivation and actual residence.
The homesteader should, however, take no chances.
From the moment he sets foot upon the tract he should
diligently apply himself to the work of erecting substan­
tial and permanent improvements. He should take with
him an ax and spade, if nothing else. If there be tim­
ber on the claim, a temporary house . should be begun
with logs. If no timber, then a dug-out should be begun,
or some act done upon the land that W'ill in itself be notic
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 settler should also have
witnesses to his first acts of improvement, 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 testi­
mony. The settler is required to make such improve­
ments as will be notice to the public, but in case other's
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 B. D. 404.)

16

It is important for other reasons, however, that one
desiring to enter a tract of land should make a careful
examination 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 claim­
ing the land.
Be certain that the land examined is the land being
entered. Frequently one enters through carelessness the
wrong piece of land. Even where one can show he has
used reasonable diligence in selecting his land, so that he
may amend his entry, it will nevertheless occasion much
delay and considerable expense.
Leadiiis’ Cases.—

The settler may be given a better idea of what consti­
tutes settlement by briefly considering a few of the cases
decided by the Department of the Interior. These cases
have arisen where one has claimed by settlement the
other by entry, or where the alleged settlement of the
one who went upon the land first has been held insufficient
to appropriate the land.
In the Seacord-Talbert case, 2 B. 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 on the land,
partially dug a cellar, but had abandoned his improve­
ments and never had established a residence on the land.
He informed 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 estab­
lished his residence 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 on the ground that Seacord’s “tem­
porary presence there on March 17, 1879, ard the act of
driving the stakes did not amount to a legal settlement,
and such a settlement he could only effect by again go­
ing on the land, animo manendi’’—that is, with the inten­
tion of remaining on the land.
In 3 B. 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 settlemen, 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—remaining not over one-half hour—
where Howden (one or more of the others assisting him),
‘picked’ a piece 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 wit­
ness, ‘that the land was taken,’ ‘to attract atention to
17

.

r

j

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 re­
turned to the land May 1, a period of over two months and
a half since he made his alleged settlement, it having
been February 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 T-eserve 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 awarded 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 Mul­
drow says: “One of the objects of settlement Is to fur­
nish notice to all comers that the tract settled upon is
claimed by the settler. A midnight settlement, followed by
a, departure of the party in a few hours and before davlight, without leaving any evidence of having been pres­
ent, is such an act as this department would be slow to
accept as the settlement required by the preemption law.”
Davis vs. Davidson, 8 D. D. 417, Assistant Spcretary
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 gully or not is not stated), at ‘dusk’
in the evening, are not calculated to give the public arenerally notice of the claim.
The time and nlace <in a
gully, after dark) selected by Davidson indicate, if bis
acts were otherwise sufficient to constitute settlement, an
intention to make (if that were possible) a clandestine ap­
propriation of the land, and not an open, honest settle­
ment, with a view of giving the public notice of his
claim. But I am of the opinion that Davidson’s acts 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 set­
tlement.
In Franklin vs. Murch, 10 D. 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 un a tent, and afterward erected a house and
resided upon the land. In Witter vs. Rowe, 3 D. D. 449,
it is said: “The arrangement in the form of a square of a

few logs, left on the land by a former settler and not fob
18

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.
In Bowman vs. Davis, 12 D. D. 415, the facts set forth
in the opinion show that Bowman’s acts of settlement
consisted of “piling up a few stones” in one place, an­
other pile, estimated from 12 to 50, and in size from s ze
of a man’s fist to that of a bushel basket, in another lo­
cality, 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 Commissionerof the General Land
Office concurred. The Department of the Interior over­
ruled the decision. Assistant Secretary Chandler quotas
and approves the definition of settlement give in Frank­
lin 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 indicative of such intent,” and says: “This defi­
nition 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 tend­
ing to disclose a design to appropriate the land under and
in accordance with the preemption (homestead) laws. The
fact that Bowman did not intend to use the stones for
the construction of a house, well or fence, or for any
other purpose, except to get them out of the way of the
plow, is not material.”
“It is sufficient that some such act is done denoting an
intention to claim the land.” The case of Etnier 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 diameter.
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 sterns
to have turned largely on this point. Actual notice of the
extent of the claim is as good as that given by improve­
ments. Hence, the importance of a settler informing all
parties who come upon his claim the extent of the set­
tler’s claim. This is especially important where the sel­
ler has not had time to put upon his claim such perma-

19

nent and visible improvements as would be regarded
notice to the world.

The above case was cited and approved in Hensley vs.
Waner, 24 L. D. 62.

Oklahoma Rule.—

RESIDENCE. •
When to Estahlish.—

Though this may be called the Oklahoma Rule, it ap­
plies in other States or Territories where lands are opened
under similar circumstances. This rule was first an­
nounced in the case of Hurt vs. Griffin, 17 L. D., 162. In
this 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 STAKED
it, was regarded as the prior settler, and as eager as men
were to secure homes, this kind of settlement was gener­
ally respected by the honest people who rushed into the
Territory, 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 accom­
plish in the afternoon of the 22d of April, 1889, circum­
stanced as they were, and very many settlements have
been held valid in Oklahoma that were no better indicated,
fixed and determined than was the settlement of Hurt.
This settlement has been diligently followed up until it
has ripened into a good home, good faith being manifest
at all times.”
In the case of Penwell vs. Christian, 20 L. D., 10, the
opinion says:
“The only act of the contestant done prior to the entryman consisted in setting said stake with his handkerchief
attached, and the question is whether this act is such an
assertion of title as will defeat the entry of Christian.
Ordinarily it would not be deemed sufficient, in the absence
of actual notice to the entryman, but in cases of this
nature where the good faith of both parties is established
and neither party is guilty of laches, I am of the opinion
that the only sound rule that can be adopted is to award
the land to the person who was first upon the land and
performed any act that evinces an intention to 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 method of asserting possession, and too many cases
have been adjudicated in accordance with Jthe rule above
stated to justify a departure therefrom.
“In the acquisition of homesteads in Oklahoma under
the Proclamation of the President and under the rules and
regulations which anticipated the rush or race that would
inevitably occur in the efforts of claimants to secure their
homesteads, and which rules and regulations sought to
secure to all equal opportunity and fairness in competing
for prior possession or settlement, and where the rights
of contestants for a certain tract are in other respects
equal, the maxim of ‘Qui prior est tempore prior est jure’
applies, and he who was first in point of time in reach­
ing 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 reasonable time as
clearly shows his good faith, should be held to have the
better title. No safer rule can in my opinian be applied
in such a case than that he has the better title who was
first in point of time.”

20

There are two rules in regard to WHEN residence
should be established upon a homestead claim, and it is
very important to understand this and clearly distinguish
between the two. Where one initiates his claim by set­
tlement he must establish his residence within a reason­
able 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 be living therein with his family. When the
right to a tract of land under the homestead law is initi­
ated by settlement 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, un­
der all the circumstances, whether or not the residence
was established within a “reasonable time.” A “reason­
able 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 settle­
ment, and at any time within three months makes entry
of the land, and is certain he has no adverse claimant
to the land, he may then abandon his claim as to settle­
ment 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 set­
tlement.
Rule Where No Contestant.—

When one initiates his right by settlement, secures his
entry, and has no contestant, he may, if he prefers, aban­
don 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 settler should, how­
ever, 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 time 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. The may file their Declaratory statements, if they
choose, but if they want their rights to date back to the
hour or date of their settlement they must do two things,
viz.: 1, Make their actual homestead entry within three
months from the date of their settlement (and not within
six months from the date of their Declaratory); and 2,
Establish their residence within a reasonable time after
their settlement, and not within six months from the
21

date of their Declaratory statement, as would be required
were they claiming the land only from the date of their
Declaratory.
WHAT CONSTITUTES RESIDENCE.
Mere Visits Not Residence.—

Mere visits to the land to keep up the fiction of a resi­
dence does not constitute a compliance 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-Owen case (4 L. D. 412) Secretary Lamar
says: “The idea that an individual can acquire or main­
tain a residence on a tract of public land, by making
occasional visits thereto while his family are residing else­
where, and while all his interests and household effects
apparently are with his family, has been long since ex­
ploded, if indeed it ever had any real existence. That is
to say, in order for an individual 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 occupying 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 estab­
lishment, 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 givn in this case was severe weather,
a poor house, and an invalid wife. The evidence showed
the entryman 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
not accepted.
Residence 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 acquired or main­
tained 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 ho-w
honestly the claimant believes such visits all that the
law requires. To establish residence the act of going
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 pub­
lic 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 se­
cure 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. Yonng,
22

A claim of residence is not consistent with the
substantial maintenance of a home elsewhere. Van Gor­
don 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. The 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 entryman. Farrel vs. Linde, 11 L. D. 602.

6 L. D. 25.

Presumed 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. Bissel, 9 L. D. 546; Bullard vs. Sul­
livan, 11 L. D. 22; Thomas B. Henderson’s case, 10 L. D.
266; Augie L. Williamson’s case, 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
homestead tract, under the facts in George F. Herman’s
case, 10 L. D. 326, held rebut claim of residence. Actual
inhabitancy 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 claimant. 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, be­
cause it works a hardship to individuals. The letter and
spirit of the law must be complied with, as the law is con­
strued by the department. Crumpler vs. Swett, 8 L. D.,
584. A claim of residence is not compatible with the main­
tenance of a home elsewhere. 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. Resi­
dence cannot be acquired without abandonment of the
former home, and the act and intent must concur. Pen­
rose’s case, 5 L. D., 179. The acts of homesteader must
not indicate a purpose to evade the requirements of the
law. Benedict vs. Herberger, 5 L. D., 273. Cultivation and
improvements are not equivalents of residence. Knox vs.
Bassett, 5 L. D. 351. What is residence? Every one of
ordinary intelligence has in his own mind, what is com­
monly 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 administering
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
place where a person lives or has his home. In this sense
the place where a person has his actual residence, or in­
habitancy, 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 prin­
cipal establishment, and to which, whenever he is absent,
23

he has the intention of returning.” Bouvier defines resi­
dence to be “the place where a person has fixed his ordi­
nary dwelling without a present intention of removal,”
and cites 10 Mass., 488, 8 Cranch, 278.
Domicile.—

The Supreme Court of Massachusetts (1st Metcalf, 345),
by the Chief Justice, Shaw, says: “The question of resdence, 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 cir­
cumstances, but from the whole taken together it must
be determined 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 tru ?
and proper domicile. One’s residence is often of a very
equivocal nature, and his intention is often still more ob­
scure. While it may be difficult to define residence, it
very easy for a homesteader to bring himself safely with n
the limits of the term, and every settler should pursu *
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 consitutes 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 abandonment or failure to comply
with the law is between the entryman and the govern­
ment, and when the failure to comply with the law re­
sults from causes beyond the reasonable 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 excuse 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
improvements, and has no other home, and all of his acts
show good faith. Edwards vs. Sixson, 1 L. D. 63. Resi­
dence once established is not lost by temporary absence
on business. Hilton vs. Kelton, 11 L. D., 505; case of Pat­
rick Manning, 7 L. D., 144. Sickness and poverty has been
held to be a valid excuse for absence from claim.
La Barre vs. Hartwell’s Heirs, 11 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,
24

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 absence to
secure means to improve the land. Pennell’s case, 8 L. D.
645; Farringer’s case, 7 L. D. 360. Absence rendered nec­
essary by sickness of parent does not constitute aban­
donment. Bailiff’s case, 7 L. D. 170. Poverty will not
excuse total want of residence. Geisendoffer vs. Jones, 4
L. D., 185.
Absence to secure support and improve the land ex­
cused. Prescott’s case, 6 L. D. 245; Israel Martel, 6 L. D.
566; Thompson’s case. 6 L. D. 576.
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. Lawson, 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 a.iid Violence.—

Threats, intimidation and violence against homestead
claimant will sometimes excuse want of residence. Un­
derwood 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, when a part of the land, at date of
entry and thereafter, is free from adverse claim. Swain
vs. Call, 9 L. D. 22.
AA'idows 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, 1 L. D. 636.
The marriage of two persons, who are holding c’aims
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 homested 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.
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 aban­
donment until expiration of six months and a day, from
date of entry, exclusive of day of entry. Baxter vs. Cross,
2 L. D. 69.

25

Leave of Absence.'*

By the Act of March 2, 1889, settlers may generally Se­
cure 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 «ecure a leave of
absence.
Len^tli of Residence Required.—

Sections 2291 and 2292, United States Revised Statutes,
provide:
Sec. 2291. No certificate, however shall be given, or
patent issue 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
person 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 widow’ 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 alienated, except as provided in Section
twenty-two hundred and eighty-eight, and that he, she or
they will bear true allegiance 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 patent, as in other cases provided by law.
Minor Heirs.—

Sec. 2292. In case of the death of both father and
mother, leaving an infant child or children under twentyone years of age, the right and fee shall inure to the bene­
fit of such infant child or children; and the executor,
administrator or guardian may, at any time within two
years after the death of the surviving parent, and in
accordance with the laws of the State in which such chil­
dren, 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 specified.

of this section shall apply to lands on the ceded portion
of the Sioux reservation, by act 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 section does
not apply generally to the lands in Oklahoma. To deter­
mine the length of residence required, before title can be
acquired by payment, we must refer to the special acts
applicable to the various reservations.
Old OklahoniH.—

By Section 21 of the Organic Act, title to the lands
opened to settlement 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 settlement,
approved February 13, 1891, provided that title to these
lands might be acquired, on proof of twelve months’ resi­
dence, and the payment of $1.25 per acre.
Cheyenne
Lands.—

and

Arapahoe

and

Pottawatomie

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.
ClieroLee 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 the Kickapoo lands is $1.50. The prices for lands in
the Cherokee Outlet range from $1.00 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, and the payment of one dollar and twenty-five
cents per acre.

RIGHTS or SOLDIERS.

Sec. 2301. This is what is known as “the commuted
provision of the homestead law.’’ Under this section, one
could acquire title after six months’ residence, cultiva­
tion and improvement, and the payment of the prescribed
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 :
Sec. 6. That Section 2301 of the Revised 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 him­
self of the benefits of Section 2289 from paying the mini­
mum price for the quantity of land so entered at any t me
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 cultiva­
tion for such period of fourteen months, and the provisions

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 re­
quired to make cash payment for lands, the soldier vir­
tually has no advantage, except to file declaratory state­
ment personally or by agent.
Section 2304. Every private soldier and officer who
has served in the Army of the United States dur.ng the
recent rebellion, for ninety days, and who was honorably
discharged, and has remained loyal to the government, in­
cluding the troops mustered into service of the United
States by virtue of the third section of an act approved
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, dur­
ing the rebellion, for ninety days, and who was honorably
discharged, and has remained loyal to the government,
shall, on compliance with the provisions of this chapter,
as hereinafter modified, be entitled to enter upon and re-

26

27

Conimutation.-

ceive patents for a quantity of public lands not exceed­
ing one hundred and sixty acres, or one quarter-section,
to be taken in compact form, according to legal sub­
divisions, including the alternate reserved sections of pub­
lic land along the line of any railroad or other public
work, not otherwise 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 de­
claratory statement, within which to make his entry and
commence his settlement and improvement.
Section 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 account of wounds received or
disability incurred in the line of duty, then the term
of enlistment shall be deducted from the time heretofore
required 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, im­
proved and cultivated his homestead for a period of at
least one year after he shall have commenced his im­
provements.
Section 2306. Every person entitled, under the pro­
visions 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 previously entered, shall
not exceed one hundred and sixty acres.
Section 2307. In case of the death of any person who
would be entitled to a homestead under the provisions o^
Section two thousand three hundred and four, his widow,
if unmarried, or in case of her death or marriage, then his
minor oprhan children, by a guardian duly appointed and
officially accredited at the Department of the Interior,
shall be entitled to all the benefits enumerated in this
chapter, subject to- all the provisions as to settlement and
improvement therein contained; but if such person died
during his term of enlistment, the whole term of his en­
listment shall be deducted from the time heretofore re­
quired 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
thereto, was actually enlisted and employed in the Armv
or Navy of the United States, his services therein shall,
in the administration of such homestead laws, be con­
strued to be equivalent, to all intents and purposes, to a
residence for the same length of time upon the tract so
entered. And if his entry has been cancelled by reason of
his absence from such tract while in the military or naval
service of the United States, and such traet has not
been disposed of, his entry shall be restored: but if such
tract has been disposed of, the party may enter anothe"
tract subject to entry under the homestead laws, and his
right to a patent therefor may be determined by the
proofs touching his residence and cultivation of the first
tract and bis absence therefrom in such service.
Section 2309. Every soldier, sailor, marine officer or
other person coming within the provisions of Section
28

two thousand three hundred and four, may, as well by an
agent as in person, enter upon such homestead by filing a
declaratory statement, as in preemption cases; but such
claimant in person shall within the time prescribed make
his actual entry, commence settlement and improvements
on the same, and thereafter fulfill all the requirements of
law.
Exhausts Homestead Itiglit.—

The declaratory exhausts homestead right. The filing of
soldier’s declaratory statement, generally speaking, ex­
hausts the homestead right. Roberts vs. Howard, 4 L. D.
562; Stevens vs. Ray, 5 U. 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 statement was filed. 4 L. D. 9: 6 L. D. 362.
The act of March 2, 1889 (25 Stat. 854); 8 L. D. 317, pro­
vides that “any person who has not heretofore perfected
title to a tract 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
notwithstanding.” See 9 L. D. 382; 11 L. D. 384.
Under this section it has been held that filing declara­
tory statement 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
L. D. 384.
Declaratory Statement, Form.—

For forms and blanks to make soldier’s filings, see
“Forms,” pp. 42 to 44.
Certificate of Uiscliargre.—

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 certified copy thereof can­
not be produced, the soldier’s own affidavit, showing his
service in the army, should be corroborated by two dis­
interested 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 entry as would gen­
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 entry 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 Fstaiiiisli Kesirteiiee.—

The soldier or marine must within six months after filing
his declaratory statement, make his final entry, commence
settlement and improvement, and thereafter fulfill all the
requirements of the law. A failure in any of these par­
ticulars will cause a forfeiture of the land, in presence of
an adverse claim. Prior to December 15, 1882 (1 L. D. 648,
and Milne vs. Ellsworth, 3 L. D. 213), a soldier’s homestead
entry was not subject to contest until six months after
29

homestead entry, thus giving the soldier twelve months
from date of declaratory statement to commence his set­
tlement 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 L. D. 17; Snyder vs. Ellison, 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 should not be confused or misled 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 initiated by the declaratory
statement. If the soldier initiates his right by settlement,
and desires his right to relate back to the date of his set­
tlement, he must establish his residence within a reas­
onable time and make his entry within three months from
date of his settlement. Otherwise he forfeits his settle­
ment right and holds only from date of the filing of his
declaratory statement. This is very important in case
of contest between claimants to determine who has the
prior right to a tract of land.
In Wood vs. Tyler, 22 L. D, 679, the Secretary of the
Interior says:
“The purpose of the hearing was apparently to enable
Tyler tO' show when he made settlement on the land
claimed by him, his contentions being, that his settlement
was prior to that of Wood, was protected by his said
declaratory statement, and therefore bis right to the land
in controversy was 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, more than three
months after his alleged settlement, and subsequent to
the entry of Wood, it is immaterial in face of Wood’s
settlement, contest, and entry when Tyler made his set­
tlement. * * * If he (Tyler) elects to stand upon his
settlement and entry, even conceding for the sake of argu­
ment that his settlement was prior to that of Wood, he
was fatally in default in failing to make entry within
three months of his settlement, as against Wood’s contest
and prior entry.”
In Thomas vs. Reed et al., 27 L. D. 532, this question
was further discussed. The opinion says:
“Where one who files a soldier’s declaratory state­
ment is also the prior settler, he may at his election make
such settlement the basis of his right to the land by mak­
ing application to make entry thereof under the act of
May 14, 1880, supra, or he may permit that time to expire
and then make entry under his declaratory statement.
In the former case his right shall relate back to date of
settlement, the same as if he settled under the preemp­
tion laws, and in the latter case his right will relate back
only to the date of filing his Soldier’s Declaratory State­
ment.” See Jared vs. Reeves, 27 L. D., 597.
Computation of Time.—

In computation, the 6 months in which a soldier may
make his homestead entry, after filing his declaratory
statement, the day of filing the declaratory statement

30

should be excluded and the last day of the specified period
included. Garner vs. Byers, 24 L. D., 38.
Filing; Declaratory by Mail.—

In Culom vs. Hemer et al., 22 L. D. 392, it was held that
a Soldier’s Declaratory 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 L. D., 459, was directly overruled.
See also Ex-parte Philip Casey, 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, sea­
man, or marine, during the existing war with Spain, or
during any other war in which the United States may be
engaged, his services therein shall, in the administration
of the homestead laws, be construed to be equivalent to all
intents and purposes to residence and cultivation 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 of abandonment
sustained against any such settler, unless it shall be
alleged in the preliminary affidavit or affidavits of contest,
and proved at the hearing in cases hereafter initiated, that
the settler’s alleged absence from the land was not due to
his employment in such service: Provided, That if such set­
tler shall be discharged on account of wounds received or
disability incurred in the line of duty, then the term of
his enlistment shall be deducted from the required length
of residence without reference to the time of actual ser­
vice: Provided, Further, That 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.
Power of Attorney.—

Soldiers desiring to give power of attorney to another to
file declaratory statements for them may use the follow­
ing form:
(Form 1.)

SOLDIER’S POWER OP 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 remained loyal to the government; that I have
never made homestead entrj’' or filed a declaratory state­
ment under Sections 2290, 2304, or 2309 of the Revised
Statutes;........................ do hereby appoint.................of..................
and State of........................................ my true and lawful 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

31

mv intention to claim and enter said tract under said
statute; that my said attorney has no interest, present
or prospective, in the premises, and that I have made no
arrangement or agreement with him or any other person
for any sale or attempted sale or relinquishment of my
claim.in any manner or for any consideration whatever,
and that I have not signed this declaration in blank, that
I am not the proprietor of one hundred and sixty acres
of land in any State or Territory, that my said applica­
tion is honestly 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 1
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, cor­
poration, or syndicate, in making such entry, nor in col­
lusion with any person, corporation, 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 speculation, but in good faith to
obtain a home for myself, that I have not directly or ind rectly made and will not make any agreement or contract,
in any way or manner, with any person or persons, cor­
poration or syndicate, whatsoev^er, by which the title
which I might acquire from the Government of the United
States should inure in whole or in 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, agricult­
ural in character and not mineral, which with the tracts
now applied for would make more than three hundred
and twenty acres. (Here add an exception, if any, of
land entered prior to August 30, 1890, giving date of set­
tlement commenced, and describing improvement.)...............

Acknowledged, sworn to and subscribed before me this
................day of.............. 189..., and I certify that the fore­
going declaration was fully filled out before being sub­
scribed and attested..............................................................................
(Official Seal.)
ATTORNEY’S STATEMENT.

DECLARATORY STATEMENT.

The following may be used where soldier files declara­
tory in person:
(Form 2.)

“I........................ of...................................................... ............County,
and State or Territory of........................... do solemnly swear
that i served for a period of.......................... in the jfvrmy of
the United States during the war of the rebellion, and was
honorably discharged therefrom, as shown by a statement
of such service herewith, and that 1 have remained loyal
to the government; that I have never made homestead
entry or filed a declaratory statement under Sections 22.90
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 honestly
and in good faith made for the purpose of actual settle­
ment and cultiv’^ation, 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 neces­
sary to acquire title to the land applied for; that I am
not acting as agent of any person, corporation, or syndi­
cate, 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
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, 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
syndicate whatsoever, by which the title which I might
acquire from the Government of the United States should
inure in whole or in part to the benefit of any person ex­
cept 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 char­
acter, and not mineral, which with the tracts now applied
for, would make more than three hundred and twenty
acres..............................................................................................................
and hereby give notice of my intention to claim and enter
said tract.
My 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.

By virtue of the foregoing, and of a certain power of
attorney 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
authority 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 Re­
CONFLICTING CLAIMS.
vised Statutes of the United States................................. Agent.
Sworn and subscribed to before me this.,..day of....189.. Coiiflictiiift- ClalniM and Contests.—
(Official Seal.)
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 set­
tler should not leave the land until he has done sufficient
Settlers are often in too
to consitute vajid settlement.
great haste to get to the land office and make entry. There

32

33

is some advantage in securing the entry, but one whc
relies upon his settlement right should not fail in his initi
atory acts. In the preceding pages, what constitutes valh
settlement has been shown. When this is done, on
should, without delay, go to the proper land office an
make his entry. He should immediately return to hi
land, and make further improvements, and follow wit}
the residence within a reasonable time. If one finds tha
the land on which he settled has been entered by anothet
he may proceed in two ways:
First—He should present himself at the proper Ian
office, and offer his written application, and necessar
affidavits, to enter said land and at the same time tende
fees and commissions. There being one entry on the lan^
the second application will be rejected. The applican
should request the register of the land office to endorse
the reiection and the reasons therefor on the application
The application and affidavits should then be left with tb
land officials. The fact of the application will then b
noted on the records. He should then within thirty day
from that date (the time allowed for appeal to the com
missioner from the rejection of his application) file a con
test affidavit in the land office, alleging his priority of set
tlement. The contest affidavit must be corroborated by a
least one witness. The department has held that when
another has wrongfully entered the land, as against ;
prior settler, the filing of a contest within three monthF
protects the settler’s rights and the formal application t
enter is unnecessary.
Second—A practice more simple than the above am
perhaps preferable, is to file with your application to ente
the land, an affidavit alleging fact of settlement, date o
time of settlement, and acts constituting the settlement
If the allegations show settlement prior to date or tim
of entry, the aplication will not be rejected, but a hear
ing (contest) will be ordered to determine who is entitki
to the land. See James et al. vs. Nolan, 5 L, D. 526
James A. Forward’s case, 8 L. D. 528; Willis vs. Parker
8 H. D. 623: Todd vs. Tait, 15 L. D. 379; Baxter vs. Crilly
12 L. D. 684; Ex-parte Austain, 18 L. D. 23.

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 state­
ment under oath, corroborated by at least two witnesses,
or sustained by strong corroborating facts and circum­
stances, showing the nature of the alleged mistake and
how the same occurred, and that every reasonable pre­
caution and exertion had been made to avoid the error,
and that he has not sold, assigned or relinquished his
alleged erroneous 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 personal 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 the
date he commenced his settlement or improvements
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 testifying thereto and their
recommendation in the matter.
In case of an application for an entry being returned to
the district land office for amendment, the register and
receiver should write across the face therof: “Amended
to (here inserting the proper description) as per commis­
sioner’s letter of (here giving initial and date).’’ This
notation must be signed by the entryman, after which the
register and receiver will attest the same over their sig­
natures and return the application to this office. Circu­
lar General Band Office, 1899, p. 90.

RELINQUISHMENT.

Applications to amend filings or entries must be file
with the register and receiver, and be by them transmitte
for the consideration of the commissioner of the genera
land office. Registers and receivers will not change a'

The first section of the Act of May 14, 1880 (see Index),
provides that when a preemption, homestead or timber
culture claimant shall file a written relinquishment of his
claim in the land office, the land covered by such claim
shall be held as open to settlement and entry without
further action on the part of the Commissioner of the
General Band 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)
opposite 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 town­
ship 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
transmitted.

34

35

AMENDING ENTRIES.
Amending Entries.—

Sometimes an entry is made by mistake, and the Ian
intended to have been entered is still free from any valii
adverse claim. In such case the proper method is to appl
to amend the original entry, by transferring it to trac
desired.
Johnson vs. Cjevre, 3 L. D. 156.
Brown vs. West, 3 L. D. 413.
Florey vs. Moat, 4 L. D. 365.
Sloatskey’s case, 6 B. D. 505.
Barr’s case, 6 B. D. 644.
Cowen vs. Asher, 6 B. D. 785.
Rules for Amending Entries.—

r
Relinquishments run to the United States alone, and no
person obtains any right to the land by the mere pur­
chase 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 money without valuable consideration.
Gen. Cir. 1899, p. 91.
FORM OP RELINQUISHMENT.

The following form
relinquishment:

may

be

used

in

executing a

(Form 3.)

I hereby relinquish to the United States all my right,
title, and interest to and in the following described tract of
land, to-wit: (here describe the land) and request that my
homestead entry No...................... be cancelled of record.
(Signature.)......................................
Subscribed and acknowledged before me this ......... day
of..........................
(Seal.)
(Signature of officer.)....................................
The relinquishment should be acknowledged before an
officer having a seal, to avoid any question concerning
the legality of the same.
The receiver’s duplicate receipt, should be filed with
relinquishment, or affidavit should accompany relinquish­
ment accounting for the absence of the same.
Before filing relinquishment, records should be examined
to see that no adverse right is of record.
DECISIONS OF DEPARTMENT.

Not voluntary when made because of confiict. 1 L. D. 45.
If filed pending contest it inures to the benefit of con­
testant. 1 L. U. 103 and 155, 145.
Executed but not filed is not proof of abandonment.
2 U. D. 28.
Executed but not delivered to the government is not a
ground of contest. 2 L. D. 41.
Takes effect immediately on filing, notwithstanding con­
test and opens the land to the first legal applicant sub­
ject to the preferred right of the successful contestant. 2
L. D. 266, 283, 313 and 619; 3 L. D. 343, 560; 13 L. D. 192; 15
L. D. 182.
May be shown to have been filed independently of the
contest and is then not evidence for the contestant. 2 L.
I) 283
Of no effect until filed. 3 L. D. 224.
Filed as result of a contest inures thereto. 3 U, D. 225;
8 L. D. 357-400.
36

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 U. D. 437.
Filed pending contest presumed to be the result thereof,
but this presumption may be overcome. 9 L. D. 440 and
461; 11 L. D. 65 and 210; 13 L. D. 196-495.
i3asis of contest. 15 L. D. 495.
Executed during intoxication. 14 L. D. 133.
Accompanied with the application to enter. 14 L. D. 144.
Right of transferee. 14 L. D. 224-644.
Inures to whose benefit. 14 L. D. 306, 383, 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.
181.
Administrator not authorized to file. 15 L. D. 264.
Contestant may proceed with his suit and establish the
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
effect at once, and the land is opened to the first legal
applicant. 26 L. D. 337.
If relinquishment is filed, pending attack by several
parties alleging settlement, the question of priority should
be determined before either party is allowed to make entry.
26 L. 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 entryman. 25 U. D. 197.
Not the result of a contest, when, at the date of its
execution, notice of contest had not issued, and entryman
had cured his default. 25 L. D. 359.
Probate court has no authority to authorize the guard­
ian of insane person to execute a relinquishment. 24 U.
D. 494.
Cannot be held to be the result of contest which prior
to the relinquishment had been decided in favor of the
entryman. 24 U. D. 428.
Takes effect eo instanti, 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 with consideration
between the parties. 22 L. D. 150.
Executed and delivered to secure debt, entryman can­
not complain if filed for non-payment of same. 22 L. D.,
398.
Who can call in question the legality of? 22 L. D. 415.
Does not inure to the benefit of contestant, unless filed
as a result of contest. 21 L. D., 333.
Cannot operate, to defeat, or impair the right of con­
testant. 21 L. D., 474.
Not necessary to be acknowledged before an officer.
17 L. D., 393; 20 L. D. 366.
To invalidate, on account of alleged intoxication of
entryman, must be shown that he was deprived of the use
of his reason and understanding through his intoxication,
20 U. D. 195.
37

F
Does not defeat the right of contestant. 18 L. D. 92, 108.
Ineffectual until filed. 18 L. D. 589.
Holder of relinquishment not entitled to contest the
entry. 18 L. D., 144, 358.
Purchaser of relinquishment does not secure preferred
right to enter the land. 17 L. D., 180.
Irregularities in the execution of. 17 L. D. 396.
Right of settler on land covered by entry of another
attaches at once on filing of relinquishment and defeats
an application to enter filed by the third party, immedi­
ately after the relinquishment. 16 L. D. 386.

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 absence,
for certain causes, for not exceeding one year. The sec­
tion is as follows;
Sec. 3. That whenever.it shall be made to appear to
the register and receiver of any public 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 dependent 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 exceeding 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 be
deducted from the actual residence required by law.
Application for Leave of Absence.—

7. The dates from which and to which leave of absence
is asked. (9 L. D. 433.)
Reave of absence is no protection against a contest
filed for abandonment, where the entryman prior to such
leave has failed to comply with the law.
Silva vs.
Paugh, 17 L. D., 540; Carpenter vs. Porness, 21 L. D., 428;
29 Li. D., 203; Yarbeau vs. Graham, 16 L. D. 348.
Where leave of absence has been granted contest for
abandonment will not lie until the expiration of six months
after the time for which the leave was granted. Hiltner
vs. Wortler, 18 L. D. 331; Jacobs vs. Brigham, 26 L. D. 268.

SOONERISM.
The term “soonerism” has acquired a well defined mean­
ing in Oklahoma, and, as used with reference to the public
land means the entering upon and occupying lands in this
Territory, prior to the time said lands are legally opened
to entry and settlement.
SEMINOLE LANDS.

The act of March 2, 1889 (see Index), the original Okla­
homa act, contained the following clause:
“But until said lands are opened for settlement by
proclamation of the President, no person shall be permit­
ted 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.’’
A similar provision has been applied to all the reserva­
tions which have heretofore been opened to settlement in
Oklahoma.
KIOWA AND COMANCHE LANDS.

The act of June 6, 1900, providing for the opening of the
Kiowa, Comanche, and Apache lands, does not contain
any provision prohibiting entry upon said lands prior to
the time the same shall be opened to settlement, by the
proclamation 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.

Under the regulations of the Department of the Inte­
rior, 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 estab­
lishing 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
applicant 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 contin­
uing upon the land: and if practicable a certificate from
a reliable physician should be furnished.
5. In case of “other unavoidable casualty,’’ the char­
acter, cause and extent of such casualty, and its effects
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 prohibitory clause in the act of March 2, 1889,
above quoted, has been construed by the Interior Depart­
ment in a number of important cases. In Blanchard vs.
White et al., 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 thereunder, with
the intent to secure an entry in advance of others, is dis­
qualified to make an entry under said act. Also, “that the
disqualification imposed by said statute extends to- the
applicant who remains outside of said Territory until
noon of April 22, 1889, but seeks to evade the prohibitory
provision of the statute through the instance of another,
whom he has theretofore employed to enter said Territory
for such purpose.”

38

39

The Law Construed.—

In other words, to send an agent in prior to the time
the lands are legally opened, to aid one in securing advantage of others, would disqualify the one whose agent
so entered
In the Oklahoma City Townsite vs. Thornton, et at,
13 L. D. 409, the syllabus of the case is as follows: “Any
person who entered within the limits of Oklahoma Ter­
ritory 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 presence 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 the opening.”
In the Guthrie Townsite vs. Paine, et al., 13 L. D. 562,
it was held, “a settler on Oklahoma lands cannot evade
the prohibitory effect of the statute by entering said Ter­
ritory 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, April 22, 1889, and takes advantage of his pres­
ence therein to secure settleinent right in advance of oth­
ers is in violation of the statutes opening said lands to
settlement.” Also, “that soldiers’ declaratory statements
filed on April 22, 1889, through an agent who was in the
Territory prior 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 the statutes opening said lands to entry.”
In the case of Taft vs. Chapin, 14 L. D. 593, it was
held: “One who was lawfully in the Territory of Okla­
homa at the passage of the Act of March 2, 1889, and so re­
mains until the lands are opened to settlement and entry
and does not take advantage of his presence as against
others to enter upon and occupy lands, is not, by such
presence in said Territory, disqualified to enter lands
therein.”
In Winans vs. Beidler, 15 L. I>. 256, it was held: “On
who is lawfully in the Territory of Oklahoma prior to
the date when the lands therein were opened to settle­
ment and entry, and takes advantage of such presence to-,
secure lands in advance of others, is disqualified by statu­
tory provision from acquiring title thereto.”
In Hagan vs. Severns et al., 15 L. D. 451, it was held:;
“One who is lawfully within the Territory of Oklahoma
at the opening thereof, but takes advantage of his pres­
ence to secure lands in advance of others, is not qualified
to perfect title.”
In Faull vs. Lexington Townsite, 15 L. D., 389, it was
held: “The provisions of Section 13 of the act of March 2,;
1889, (above quoted) prohibit the examination and selec-*
tion 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.”
1
In Donnel vs. Kittrell, 15 L. D., 582, it was held: “Ond
who bv mistake enters Oklahoma Territory prior to thd
time fixed by proclamation for settlement therein, but
takes no advantage of his presence in said Territory ana
4Q
i

leaves the same on the discovery of his mistake, is not
thereafter disqualified to enter lands in said Territory.”
See also Townsite of Kingfisher vs. Wood et al., 11 L.
D., 330.
The law may be violated by employing an agent. 27
L. D., 696.
Making a race from railroad right of way, violation of
the law, 27 L. D., 438.
Presence in the Territory at the time of opening dis­
qualifies one to make entry or settlement on that day,
but if by such presence no advantage is secured, such a
person is not necessarily disqualified thereafter. 27 L.
D., 277.
May violate the law by passing through the Territory
on railroad train. 27 L. D., 474.
See 28 L. D., 169, 303; 16 L. D., 375, 253, 132; 17 L. D.. 402,
526, 175.

SECOND ENTRIES.
The general rule is that ohe 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,
permitting second homestead entries. The Department of
the Interior has also, by numerous decisions, permitted
•persons to make second homestead entry, where the orig­
inal entry was not made under such circumstances that
exhausted the homestead right. As this volume is pre­
pared especially for persons who desire to make entry of
the lands in the Kiowa, Comanche, and Apache reser­
vations, to avoid confusion, we will again refer to second
entry, as permitted upon these lands.
Kiowa and Coiiianclie 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 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 said lands.”
It will be observed that the above provision conta’ns
two clauses. The first provides, “That any person who
having attempted to, but for any cause failed to secure a
title in fee to a homestead under existing laws, * * *
shall be qualified to make a homestead entry upon said
lands.”
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 cellh tion
Section 13 of the Act of March 2, 1889, referring to the
lands opened to settlement j\pril 22, 1889, contains a pro­
vision word for word as the one above quoted. This pro­
vision 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 pass­
age of the Act of March 2, 1889. The question arose as tQ

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. Sec­
retary Bliss held that Lowry was qualified. In the decis­
ion of the case (supra), the secretary 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 homestead
law, he is by virtue of this act qualified to make entry.”
The same question arose in the case of Henderson et
al. vs. Smith, 28 L. D. 303. The department in this 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 relinquished a homestead entry upon a
tract of land in Missouri subsequent to March 3, 1893,
the date of the approval of the act providing for the open­
ing to settlement the Kickapoo lands. In that case Sec­
retary Hitchcock, under date of April 19, 1899, held that if
a party had relinquished his entry prior to the date of
his application to make second entry, that, under the
above provision, he was a qualified entryman.
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 com­
muted provisions of the homestead law, prior to the timé
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, persons who fail to secure title to their lands,
or commute their entries between now and the time the
Kiowa, Comanche, and Apache country is opened to set­
tlement, or the time their rights to the land are initiated,
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.—

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 decis­
ion is overruled or modified, persons wiio have “com­
muted” in Oklahoma cannot 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 provisions of Section twenty-three hundred and one
of the Revised 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 provis­
ions of Section twenty-three hundred and one of the Re­
vised Statutes shall not be allowed of an entry made
under this section of this act.
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 Flat­
head Band of Indians in the Territory of Montana, and
for Other Purposes,” approved March second, eighteen
hundred and ninety-nine, shall not be held to have impaired
or exhausted their homestead rights by or on account
of any such purchase. (Approved June 5, 1900.)
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.—

We again call attention to the question as to whether
parties who have commuted entries in Oklahoma are en­
titled to make entry in the Kiowa and Comanche coun­
try, under the second clause of the above provisions, which
provides: “That any person who * * * made entry under
what is known as the commuted provision of the home­
stead law shall be qualified to make a homestead entry
upon said lands.’’ Under the construction given to a
similar provision in the act, which provided for the open­
ing of the Sac and Fox lands, the Secretary of Interior
held, that parties who had commuted in Old Oklahoma,
under Section 21 of the Act of May 2, 1890, were not en­
titled to make a second entry upon the land in the Sac
and 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 net, and that this special act was not “the com­
muted provision of the homestead law.’’ As all commu­
tations in Oklahoma have been made under special acts

The Acts of Congress providing for the opening of the
various reservations to settlement are hereinafter quoted.
If one desires to make second entry upon any of sa d
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 entry
is not disqualified as a settler claiming the right of sec­
ond entry, under Section 13, Act of March 2, 1899 (25 Stat­
utes, 980), by the fact that the first entry had not been
cancelled of record at the date of his settlement. 29 L.
B., 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,

42

43

title in fee to a homestead under existing law,” is applic­
able to entries in the Cherokee Outlet, and is determined
by the status of the applicant at the date of his applica­
tion. 29 L. r>., 372.
ACT MARCH 3, ISSi).

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
perfected 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 notwithstanding; but this right shall not
apply to persons who perfect title to lands under the pre­
emption or homestead laws already initiated: Provided,
That all preemption settlers 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 claims
under the homestead law notwithstanding they may have
heretofore 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 preemption or homestead laws of the United States.
George W. Blackwell, 11 U. D. 384; James W. Barry, 10
L. D. 634; Robert Brandon, 9 L. D. 145; A. P. Toombs, 9 L.
D. 312; John P. Newcomb, 9 L. D. 556; Barget’s case, 9 U.
D. 412; Fitzpatrick, 12 L. D. 268; Lewis Jones, 12 B. D. 361;
Hartzell’s case, 12 L. 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 cultiva­
tion of the additional entry; and if final proof of settle­
ment and cultivation has been made for the original entry
when the additional entry is made, then the patent shall
issue without further proof: Provided, That this sec­
tion shall not apply to or for the benefit of any person who
at the date of making application for entry hereunder does
not own and occupy the lands covered by the original
entry: And provided. That if the original entry should
fail for any reason prior to patent, or should appear to
be illegal or fraudulent, the additional entry shall not be
permitted, or, if having been initiated, shall be cancelled,
John,Goodman, 8 B. D. 428; John Schnabelin, 8 B. D.
474; John R. Cannon, 10 L. D. 78; T. B. Hartzell, 10 B.
D. 681.
Section 6. That every person entitled, under the pro­
visions of the homestead laws, to enter a homestead, who
has heretofore complied with or who shall hereafter com­
ply with the conditions of said laws, and who shad hav"
made his final proof thereunder for a quantity of land
less than one hundred and sixty acres and received the
receiver’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 United
States subject to homestead entry, so much additional
land as added to the quantity previously so entered by
44

him shall not exceed one hundred and sixty acres: Pro­
vided, That in no case shall patent issue for the land cov­
ered by such additional entry until the person making
such additional entry shall have actually and in conform­
ity with the homestead laws resided upon and cultivated
the lands so additionally entered and otherwise fully com­
plied with such laws: Provided, also. That this section
shall not be construed as affecting any rights as to loca­
tion of soldiers’ certificates heretofore issued under Sec­
tion two thousand three hundred and six of the Revised
S tcltutGS
P. D. Gilbert, 8 B: D. 500; J. T. Stewart, 9 B. D. 543;
Jacob Parley, 10 L. D. 601; E. M. Hutchinson, 11 B. D. 364.
ACT DECEMBER 30, 1S94.

The right to make a second entry under the Act of
December 29, 1894, extends to such persons as have there­
fore 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 desires to enter, an application for a spe­
cific tract of land, and to submit testimony to consist of
his own affidavit, corroborated by the affidavits of disin­
terested witnesses, executed ^before the register or re­
ceiver 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 application, and
which must be sufficient to satisfy the register and re­
ceiver, who are 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 destruction or failure of crops, sickness,
or other unavoidable casualty, to secure a support for
himself or those dependent upon him, upon the land set­
tled upon.
The facts to be shown embrace the following,* viz.:
1. The character and date of the entry, date of estab­
lishing residence upon the land, and what improvements
were made thereon by the applicant.
2. How much land was cultivated by the applicant,
and for w’hat period of time.
3. In case of failure or injury to crop, what 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
continuing upon the land, and if practicable a certificate
from a reliable physician should be furnished.
5. In case of “other 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 facts 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.
45

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 ac­
cordance with such instructions as may be issued there­
under.
DEPARTMENTAL DECISIONS.

Second Entries under Departmental Decisions.—

“Second allowed where the -first was made in good
faith for land afterwards held not subject thereto, and
accordingly cancelled on relinquishment.” 8 L. D. 137.
“Second may be made where the first was relinquished
under the belief that it could not be maintained without
danger 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 right to make a second rests on the noninhabitable character of the land covered by the first, the
facts as to the nathre and conditions of both tracts
should be clearly set forth.” 9 L. D. 207.

It is not every homestead entry thg.t exhausts the home­
stead right. On general principles the Department of Inte­
rior has from time to time permitted persons to make
second entry independent of all special statutes. The fol­
lowing 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 en­
try, and that there are no heirs of the entryman who are
entitled to perfect said claim.’’ 25 L. D. 453.
“A second may be allowed where the land embraced
in the first does not afford a supply of water fit for
domestic use, and the entryman does not appear to have
been wanting in diligence or good faith. 21 L. D. 390.
“The right to make a second may be recognized where
the first was cancelled on account of the entryman’s fail­
ure to establish residence and such failure was due to
circumstances beyond his control.’’ 22 L. D. 179.
“The right to make a second will not be accorded to
one who relinquishes his prior entry on account of a money
consideration or its equivalent.’’ 23 L. 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 circumstancf s, is not
chargeable with negligence in the premises.’’ 28 D. D. 259.
“The right to make a second may be accorded to one
who in good faith relinquishes the first on account of an
adverse claim asserted to the land included therein.” 24
L. D. 531.
“The right to make a second may be recognized where
the first through mistake was 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 worth­
less character of the land covered by the first, if such
entry was made without examination of the land.” 26
D. D. 23.
“The right to make a second accorded when the first,
through no fault of the entryman, was made for land
covered by a prior bona fide preemption claim.” 10 L.
D. 9; 8 L. D. 98.
“The right to make a second recognized when the first,
made in good faith, was abandoned on account of conflict
with the bona fide preemption claim of another.” 8 L.
D. 100.
“Second allowed where the first, for equitable reasons,
was relinquished on account of conflict with the prior set­
tlement right of a preemptor who was in default in the
matter of submitting proof.” 8 L. D. 131.

5. 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 reg­
ister, the deposit to be made with the receiver, who will
notify the register thereof, that he may cause the notice

4^

47

FINAL PROOFS.
(From General Land Office Circular, issued July 11, 1899.)
Address.—

1. Applicants to make entries and claimants and wit­
nesses making final proof must in all cases state their
place of actual residence, their business or occupation, and
their postoffice address. It is not sufficient 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 sur­
veyed land the subdivision, section, township, and range
must be stated in every case.
Notice.—

3. Notice by registered letter, directed to claimant’s
last-known postoffice address, is the prescribed means
of giving legal notice to him of official action taken in
respect to his entry, either before or after proof (circular
approved October 28, -1886, 5 L. D. 204). Claimants and
entrymen should therefore give prompt notice to the reg­
ister and receiver of any change of residence or postoifice
address. (See Rules of Practice 11, 14 and 17, as amended
May 26, 1898.)
Written Application.—

4. Any claimant desiring to make final proof of having
complied with the provisions of law in respect to residence,
cultivation, or improvement must first file with the reg­
ister of the proper land office a written notice of his inten­
tion to do so, which notice must be transmitted by the
register 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 witnesses by
whom the necessary facts as to settlement, residence, cul­
tivation, 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.
Deposit Money.—

to be published, but settlers are not to be deprived of the
right to make their own contracts for publishing notices
of intention to make final proof and to make payment
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 state­
ment from the publisher or his agent that the money for
the payment of said notice has been paid to or deposited
with said publisher.

the application (a copy of which should be annexed to
the certificate) was posted by him in a conspicuous place
in his office for a period of thirty days.

Length of Publication.-

13. Proof should in every case be made at the time and
place advertised, and before the officer named in the no­
tice. On the day advertised the officer named in the no­
tice shall call the case for hearing, and should the claim­
ant fail to appear the officer should continue the case until
the next day, and on that day or on any succeeding day,
should the claimant fail to appear, proceed in like man­
ner until the expiration of ten days from the day adver­
tised, after which the proof, if presented, should not be
received. Proper notice should be given of the continu­
ances, made in the most effective way the circumstances
admit of, to any parties interested. Parties proposing to
cross-examine claimant’s witnesses or submit rebutting
testimony will be allowed to do so on the date advertised,
in case of the appearance o*f the claimant and his proof
being made on that day. In case of his non-appearance
protests or affidavits of contest may be filed, and if a suffi­
cient ground of objection is set forth therein the protest­
ant, 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
rebutting 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 protestant,
contestant, or adverse claimant, an opportunity to be
heard, 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 con­
test affidavit, on the day advertised, or on any day to which
the case may be continued as above, will suffice to pro­
tect their rights in the premises as fully as though both
parties had appeared and the proof been taken on t e
day advertised. The proceedings had should be duly dock­
eted and be made to appear by proper entries on the proof
papers, to which any protest or contest affidavit fi’ed
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 notices. Other persons cannot
be substituted as witnesses without readvertisement.
Section 7, Act of March 2, 1889, legalizes proof taken
within ten days following the date advertised, where un­
avoidable delay prevents compliance with the notice.. (10
L. D. 301, 397.)
There is no law or rule of the Department that war­
rants the local officers in extending the time for taking
final proof beyond ten days from the time set therefor in:
the advertisement. (20 L. D. 343.)

6. Upon the filing of the notice by the applicant the
register will publish a notice that such application has
been made once each week for a period of thirty days, in
a newspaper which he shall designate by an order written
on said application, as published nearest the land de­
scribed 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 compliance
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.
Contents of Notice.—

7. The notice to be given by the register must state
that application to make final proof has been filed; the
name of the applicant; the kind of entry, whether home­
stead, preemption, or other; a description 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.
Combine Notices.—

8. To save expense, the register may embrace two or
more cases in one publication, when it can be done con­
sistently with the legal requirements of publication in a
newspaper published nearest the land.
Publisber’s Duty.—

9. Publishers should cause each proof notice to be care­
fully 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.
Proof of Publication.—

10. Proof of publication will be the affidavit of the
publisher or foreman of the newspaper employed that the
notice (a copy of which notice must be annexed to the
affidavit) was published in said newspaper once a week
(if a weekly paper), for five successive weeks, or for thirty
days in a daily paper, as the case may be. Such affidavit
must show that the notice was published in the regular
and entire issue of every number of the paper during the
period and time of publication, and that the notice was
published in the newspaper proper and not in a supple­
ment. Affidavits of publication not in conformity with
these requirements will be rejected by the register and
receiver.
Postilli?.—

11. Proof of posting notice in the district land office
will be the certificate of the register that the notice of
48

Publication and Posting.—

12. The proof of the publication and posting of the
notice must be filed and preserved by the register, to be
forwarded to the General Land Office with the final papers
when issued.
General Provisions.—

49

Duties of Officers.-

14. 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 authenti­
cated and transmitted to the register and receiver, to­
gether with the “fee and charges’’ allowed by law to them.
There may be transmitted therewith the fees and com­
missions, 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 Stat. 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
is 15 cents, or in the Pacific states and territories, 22^^
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 certified by the attesting officer.
Attesting.—

16. Attesting officers must sign in their true official
capacity. If proof is taken by a judge in his capacity as
clerk of his own court, he should sign as “ex-officio clerk.’’
Examination of Witnesses.—

17. Registers and receivers, judges and clerks of courts,
and other officers taking proofs are enjoined to use the
utmost strictness in the examination of parties and wit­
nesses, and to obtain full, specific, and unevasive an­
swers 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 re­
liability of the testimony of claimants and witnesses. Offi­
cers will certify to their oral cross-examinations.
18. Registers and receivers will carefully examine all
proofs transmitted to them by other officers, and w.ll rot
issue certificates nor place entries on record, nor transmit
the proofs to this office, until the same have been thus
examined. Defective, insufficient, or unsatisfactory proofs
will be rejected and new proof required.
19. Proofs taken by other officers than registers and
receivers must be immediately transmitted to the reg­
ister and receiver and the money paid to the latter. When
any interval of time, other than that required for imme­
diate 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 receipt of proof and payment by the register and
receiver, will be required before certificate 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
should occur by inadvertence in any case, additional evi­
dence as above should be at once required of the claim­
ant 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.
50

1

20. As settlers on unsurveyed lands are allowed three
months after the filing of the township plat of survey
within which to put their claims on record, no final proof
on homestead or preëmption 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, ex­
cept 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 accident or unavoid­
able 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 B. D. 426; 8 L. D. 3; 9 L. D. 123.
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; Eastlake Land Co. v. Brown, 9 L. D. 322; Alice Sum­
merfield, 10 L. D. 372; Frank Aldrich, 10 L. D. 587; Bas­
ket V. Cannon, 11 B. D. 449; Willis v. Buchanan, 11 B. D.
256 and 452.
May After Contest Tried.—

The above has been modified by rule allowing entryman to make final proof if contest has been tried.
Special Notice—

Special notice should be given to adverse claimants, of
intention to submit final proof. Tuttle vs. Parkin, 9 L.
D. 495.
Indefinite Notice.—

Final proof submitted on indefinite notice may be ac­
cepted, in the absence of protest, after republication.
Kemp’s case, 9 L. D. 439.
Names and Addresses of Witnesses.—

In giving notice of intention to make final proof, the
settler must publish the names and postoffice addresses
of his witnesses. Four disinterested witnesses must be
named in the notice, two of whom must appear and tes­
tify in behalf of claimant. The witnesses should be near
neighbors. Nellie E. Burch, 8 L. D. 651; Whitcomb vs.
Boos, 5 B. D. 448. In case other witnesses are substituted,
republication will have to be made, and in case of no pro­
test, proof may be accepted. Butz’s case, 11 L. D. 266;
Herbert Higgins, 9 L. D. 646; Wenzel Paows, 8 B. D. 473.
Description of Land.—

The land must be correctly described. If not, republi­
cation 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 B. 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 B. D. 809.
Names of witnesses should be properly given and must
be correctly printed. Great care should be exercised in
51

.Mi.

Tn rase of mistake in names, republication will be

reiiiired

Amos E. Smith, 8 I.. D. 204.

If by mistake Sunday is fixed for final proof, the day
following- 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. 6.51;
Francis M. Cull. 5 B. D. 348. But see E. B. Gate’s case,
5 B. D. 207. Also Chrisinger case, 4 L. D. 347.
Publication Notice.—

The notice must be published in a paper published near­
est the land, and if not new publication will be required.
Ensign’s case, 7 B. 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
day until completed. Zimmerman’s case. 7 B. 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 adland.
Vandevoort’s case, 7 B.
Every fact necessary to entitle claimant to make final
proof should appear affirmatively from the proof, U. S.
vs. Skahcn, 6 B. D. 120. The proof should be clear and
explicit. Park’s case, 6 L. D. 549.
The good faith fo 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. De Bendrecie, 3 L. D. 110.
Bocal office on account of press of business may con­
tinue final proof, but should be to a day certain. Lalcorner vs. Hunt et al., 6 B. D. 512; John McCorty, 6. L.
D. 806.
Proof must be taken at the time and place designated
in the published notice. Lent’s case, 6 B. D. 110; Sherlock’s
case, 6 L. D. 155; Gray vs. Ney, 6 L. D. 232.
'The publication of a notice to make final proof is an
invitation to the world to appear and object to the allow­
ance of the proof. U. S. vs. Fernandez, 6 B. D. 379; Brady
vs. S. P. R. R., 5 L. D. 407.
Use of witness not named in notice will not invalidate
the proof. Cull’s case, 5 L. D. 348.
Notice must be 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 hear­
ing. Fenton vs. Caldwell, 1 B. D. 448. Protestant may
appear, cross-examine final-proof claimant’s witness and
introduce counter proof. Houge vs. Treman, 2 B. D. 596.

RULES OF PRACTICE.
(Approved June 27, 1899.)
I.

(Proceedings before Registers and Receivers.)
1.—INITIATION OP CONTEST.
Rule 1.—Contests may be initiated by adverse party or
>ther person against a party to any entry, filing or other
52

claim under laws of Congress relating to the public lahd.^,
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 B. D. 209.
Indian Trust Band.—

Entries on may be contested. 9 B. D. 329. Bocal 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
location. 14 B. D. 588.
Application to Enter—

Not contestable under above rule. (15 L. D. 150.) An
application to enter “is simply the expression of a desire
to establish a claim.’’ 15 L. D. 150.

Preference Right—

To enter awarded to one who initiates contest under
above rule and furnishes evidence. 10 L. D. 399, 13 B. D.
115; see 7 B. D. 9, 1 L. D. 314.
Rules 1, 2 and 3 must be complied with to initiate valid
contest. 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 register
and receiver, fully setting forth the facts which consti­
tute 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 bd
corroborated with respect thereto by the affidavit of one
or more persons.
Affidavit must be filed (11 B. D. 326), but this might
be waived by contestée. Rule directory. 13 L. D. 426.
Charges must be sepcific, and amendment cannot be made
on hearing ordered by commissioner, after final certificate
has issued when amendment set up new grounds of 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 B. D. 437.
Affidavit need not be made before register and receiver.
17 L. D. 540.
Rule 3.—Where an entry has been allowed and remains
of record the affidavit of contestant must be accompani d
by the affidavits of one or more witnesses in support cf
the allegations made.
In the absence of affidavit required to initiate a con­
test 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
authorized to administer oaths in the district where the
land is situated. 2 B. D. 213.
An affidavit may be- rejected if not properly corrobo­
rated. Defective affidavits cannot be amended in the' pres­
ence of an adverse right. 8 L. D. 446; 11 B. D. 326.
53

A letter from the receiver of a land office attached to
the affidavit of contest in support of the charge contained

therein may be accepted as due corroboration where the
charge against the entry involves a matter of record
within the official 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
includes within it the sufficiency of the corroboration. 15
L. D. 300.
A corroborating affidavit may be on information and
belief. 14 L. D. 576; 15 L. D. 300.
Protest by State against mining claim must be cor­
roborated. 22 Li. D. 629. Object of contest affidavit. 17 L.
D. 96.
Corroboration of protest is not essential, where Depart­
ment is bound to take judicial knowledge of the matters
charged. 27 L. D. 53.

2.—HEARING IN CONTESTED CASES.
Rule 4.—Registers and receivers may order hearings in
all cases wherein entry has not been perfected and no cer­
tificate 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 L. D. 57.
A party offering a corroborating affidavit should be al­
lowed time to amend subject to any intervening adverse
claim. 2 L. D. 210.
It is by a notice to the settler that the local office ac­
quires jurisdiction, and not by force of any affidavits on
which citation is issued. 2 L. D. 312.
Rule 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 L. D. 302. Reg­
ister and receiver have no jurisdiction to allow an amend­
ment to contest affidavit upon entry where final certifi­
cate has issued and a hearing has been ordered by com­
missioner. 14 L. D. 447.
Contestant entitled to notice. 17 L. D. 133.
Rule 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
determination and instructions.
3.—NOTICE OF CONTEST.
Rule 7.—At least thirty days’ notice shall be given of
all hearings before the register and receiver unless by writ­
ten consent an earlier day shall be agreed upon.
Thirty days’ notice for hearing before the register and
receiver. 4 L. D. 540. But this rule does not apply to hear­
ings ordered elsewhere, and if a party wants more time
he should appear and ask for a continuance.
54

In computing time, exclude the day on which notice is
served or day on which trial is to take place. 21 L. D. 164;
Z2. L. D. 640; 17 L. D. 139; 18 L. D. 478.
Rule 8.—The notice of contest and hearing must con­
form 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 enfry and the land office where, and the date when
made, and the name of the party making the same.
6. It must give the name of the contestant, and briefly
state the grounds and purpose of the contest.
7. It may contain any other information pertinent to
the contest.
The mere omission of the register to affix to his sig­
nature on a notice of contest his official designation does
not invalidate the process. 11 L. D. 269. Need not be signed
by both register and receiver. 11 L. D. 418.
After appearance to the merits of an action it is too
late to object to the sufficiency of the notice. 11 L. D,
418. See 12 L. D. 462. Notice must be issued by the local
land officers. This authority cannot be delegated. It must
state time and place of hearing and describe the land. If
defective in these particulars it confers no jurisdiction. 33
L. D. 429.
Evidence must be confined to the grounds set forth in
the notice. 15 L. D. 305.
Copy of charge need not be made in notice.
23 L.
D. 142.
4.—SERVICE OF NOTICE.
Rule 9.—Personal service shall be made in all cases
when possible if the party 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 notice shall 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
he 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
cannot be heard to say that contestant has not used due
diligence to secure personal service. 5 L. D. 456.
Service may be made by party in interest. 6 L. D. 552.
Irregular service confers no jurisdiction. 9 L. D. 75.
Mode of proof of service is immaterial where service is
admitted, or not denied. 10 L. D. 274, 6 L. D. 669.
Appearance and procuring a continuance is a waiver cf
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

be returned prior to the time fixed 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
notice in time.
5 B. D. 214; 9 B. D. 132-606; 10 B. D. 621; 11 B. D. 605.

sufficient to base an order for service by publication. 11
B. D. 261.
If the copy of notice served on defendant does not show
true date of hearing, the notice is fatally defective. 12 L.
D. 44.
Original notice instead of copy may be served. 5 L. D.
590.
Cost of taking testimony is taxed 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 overrule 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 ser­
vice nothing is waived by proceeding to trial. 12 B. 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
the defendant’s residence, is not personal service.
Notice by registered letter not personal service. 18 L.
D. 586 ; 24 B. D. 14. Publication proper when defendant
non-resident. 21 B. D. 277.
No jurisdiction unless rule complied with. 16 B. D. 120.
Requirements of rule must be affirmatively shown to con­
fer jurisdiction. 27 B. D. 432.
Rule 10.—Personal service may be executed by any offi­
cer or person.
See 4 B. D. 86, 440 and 537; 5 B. 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 publication only when
it 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 affidavit must also
state the present postoffice address of the person intended
to be served, if it is known to the affiant, and must show
what effort has been made to obtain personal service.
Due showing must be made before publication author­
ized.
Non-residents will not be heard to deny due dili­
gence. 5 B. D. 456. An affidavit which sets forth conclu­
sions, not facts, is fatally defective as a basis for notice
of publication. 6 B. D. 669.
An affidavit showing diligence is condition precedent
to service by publication. 6 B. D. 669; 8 B. D. 452; 16 B.
D. 26.
Service upon alleged guardian of a minor will not con­
fer jurisdiction if the fact of guardianship is not estab­
lished.
Due showing must be made before publication
authorized. 9 B. D. 218; 11 B. D. 315.
If affidavit shows that the defendant Is not a residert
of the State or Territory, and personal service cannot be
made, it is not necessary to show what efforts have been
made to secure personal service. 11 B. D. 261.
Affidavit may be made by any person possessing re­
quisite information. 22 B. D. 566. See 22 B. D. 701.
No formal order of publication necessary. 21 B. D. 277.
Rule 12.—When it is found that the prescribed servjce
cannot be had, either personal or by publication, in time
for the hearing provided for in the notice, the notice may
56

5.—NOTICE BY PUBBICATION.
Rule 13.—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
the land 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 B. D. 611; 9 B. D. 131. Period of pub­
lication must be followed strictly, 9 B. D. 606.
Day of first publication may be counted; 10 B. D. 620.
On service by publication, see 4 B. D. 84; 5 B. D. 611; 7 B.
D. 198; 9 B. D. 561.
Rule 14.—Where notice is given by publication a copy
thereof shall, at least thirty days before the date for the
hearing, be mailed, by registered letter, to each person
to be so notified at the last address, if any, given by him
as shown by the record, and to him at his present
address named in the affidavit for publication required
by Rule 11, if such present address Is stated in such
in such affidavit and is different from his record address.
If there be no such record address and if no present ad­
dress is named in the affidavit for publication, then a
copy of the notice shall 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 office 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 Government against timber and stone entries is given
by publication the posting of notices upon the land will
not be required.
Sending copy^by registered letter and posting are essen­
tial. 9 B. D. 75; 10 B. D. 131-606; 11 B. D. 434; 24 B. D. 350.
After motion to dismiss, participating in trial, will not
give jurisdiction. 10 B. D. 131.
Rule modified as to timber and stone entries. 14 B. D. 54.
Notice by registered letter should be sent to last known
address, and not to postoffice nearest the land. 21 B. D. 319.
Publication of notice is warranted on affidavit that al­
leges defendant to be a non-resident, and shows that per­
sonal service cannot be secured. 27 B. D. 654.
Registered letter addressed to defendant, to h’s address
appearing of record, is sufficient. 27 B. D. 654.
(Rule of 1896.) Does . not require, in service of notice
by publication where the suit is against the heirs of the
entryman, and the postoffice address of such heirs is un­
known, that a copy of the notice should be sent to said
heirs at the last known address of entryman. 29 B, D,
445-.5S7.
57

1

If any error occurs in service by publication, which
makes necessary 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 publication is promptly made.
29 E. I). 693.
6.—PROOF OF SERVICE OF NOTICE.
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 notice attached thereto, stat­
ing the tim^, place, and manner of service.
Delivery of copy only required, 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 when service not
denied. 21 L. D. 383.
Rule 16.—When service is by publication, the proof of
service shall be a copy of the advertisement, with the
affidavit of the publisher or foreman attached thereto,
showing that the same was successively inserted the re­
quisite number of times, and the date thereof.
7.—NOTICE OF INTERLOCUTORY PROCEEDINGS.
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 ad­
dress, if any, given by or on behalf of the party to b*
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 notice of contest is given
by registered mail under Rule 14, and the return registry
receipt shows such notice to have been received by the
contestée, the address at which the notice was so received
shall be considered as an address given by the contestée,
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. See 1 D. D. 479; 3 L. D. 99; 5 E. D.
235; 7 E. D. 335.
*
Notice of office, by registered letter, to contestant, is
sufficient. 16 E. D. 47.
Rule 18.—Proof of service by mail shall be the affidavit
of the person who mailed the notice, attached to the postoffice receipt for the registered letter.
Notice of cancellation should be in strict conformity cf
Rules 17 and 18. 9 E. D. 490; 11 E. D. 406.
8.—REHEARINGS.
Rule 19.—Orders for rehearing must be brought to the
notice of the parties in the same manner as in case of
original proceedings.
9.—CONTINUANCES.
Rule 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 wit58

nesses, when the party asking for the continuance makes
an affidavit before the register and receiver showing:
1. That one or more of the witnesses in his behalf is
absent 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 at­
tendance of the absent witnesses; and
6. That affiant believes said witnesses can be had 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,
without requiring an affidavit on the part of the govern­
ment.
Continuance cannot be demanded as a matter of right
because applicant’s attorney is engaged in trial in another
court. 9 E. D. 523.
Affidavit for continuance should show witnesses not
absent by procurement or consent of applicant, and what
diligence has been used. 7 E. D. 630.
Motion for continuance addressed to sound discretion
of trial court. 7 E. D. 61; 6 E. D. 164, 342, 440.
Diligence must be shown in application for. 7 E. D. 497.
Sickness good cause for continuance. 17 E. D. 138. In
some cases affidavit for continuance may be made by
some person other than the party asking for it. 16 E.
D. 106.
Application to take deposition does not supersede the
necessity of applying for continuance. 16 E. D. 295.
Rule 21.—One continuance only shall be allowed to either
■ party on account of absent witnesses, unless the party
applying for a further continuance shall at the same time
apply for an order to take the depositions of the alleged
absent witnesses.
Rule 22.—No continuance shall be granted when the op­
posite party shall admit that the witnesses would, if pres­
ent, testify to the statement set out in the applicaion for
continuance.
10—DEPOSITIONS ON INTERROGATORIES.*
Rule 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 office.
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
witness may be unable or will refuse to attend, in which
case the deposition will be used only in event that the
personal attendance of the witness cannot be obtained.
Proper affidavit musf be filed. 16 E. D. 97.
Rule 24.—The party desiring to take a deposition under
Rule 23 must comply with the following regulations:
59

1. He must make affidavit before the register or re­
ceiver, 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 the interrogatories on the
opposing party or his attorney.
Applications in time if made on day of trial. 8 L. D. 167;
see 10 L. D. 480, 11 H. D. 575, 15 L. D. 262.
Commissioner not authorized to take depositions of wit­
nesses not named in commission. 9 Ij . D. 135.
When proper showing made commission must be issued.
17 Tu. D. 324.
Rule 25.—The opposing party will be allowed ten days in
which to file cross-interrogatories.
Rule 26.—After the expiration of the ten days allowed
for filing cross-interrogatories a commission to take the
deposition shall he issued by the regisrer and receiver,
which commission shall be accompanied by a copy of all
the interrogatories filed.
Rule 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.
Rule 28.—It is the duty of the officer before whom the
deposition is taken to cause the interrogatories appended
to the commission to be written out and the answer thereto
to be inserted immediately underneath the respective ques­
tions, and the whole, 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.
Not necessary for certificate to show that officer read
the deposition over to witness. 25 L. D. 144.
Rule 29.—The officer must attach his certificate to the
deposition, stating that the same was subscribed and
sworn to by the deponent at the time and place therein
mentioned.
Rule 30.—The deposition and 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
receiver.
Rule 31.—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.
Rule 32.—If the officer designated to take the deposition
has no official seal, a proper certificate of his offic al charac­
ter, under seal, must accompany his return.
Rule 33.—The parties in any case may stipulate ip writ­
ing to take depositions before any qualified officer, and in
any manner.
Rule 34.—All stipulations by parties or council must be
in writing, and be filed with the register and receiver.
11.— ORAL TESTIMONY BEFORE OTHER OFFICERS
THAN REGISTERS AND RECEIVERS.
Rule 35.—In the discretion of registers testimony may be
taken near the land in controversy before a United States
60

commissioner or other officer authorized to administer
oaths, at a time and place fixed by them and stated in the
notice of hearing.
2. Officers taking testimony under the foregoing rule
will be governed by the rulers applicable to trials before
registers and receivers. (See rules 36 to 42, inclusive.)
3. Testimony so taken must be certified to, sealed up
and transmitted by mail or express to the register and re­
ceiver, and the receipt thereof at the local office noted on
the papers, 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
register 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
authorized 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 under
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, to 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 U. D. 640; 15 L. D. 289.
Where contest is dismissed notice should be given to
contestant’s attorney; 15 L. D. 436.
Notice to attorney, notice to party; 14 L. D. 700.
Protestant against final proof is under no obligation to
submit testimony before the office designated to take such
proof in absence of an order therefor under rule 35 of prac­
tice; 13 U. D. 203.
Apprehension that testimony will not be fairly taken is
not sufficient excuse for failure to appear and submit tes­
timony, 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 offi­
cer to take such testimony. 10 L. D. 418. As to authority
of officer, see 11 Ij . 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 continuance, although after testimony has been
ordered and taken under rule 35. 10 L. D. 480. Local office
may designate officer to take testimony under rule 35. 9
L. D. 209. Testimony may be taken near the land when
reasonable cause for so doing is shown. 3 U. D 112. As
to costs under this rule, see 3 U. D. 193. Also 3 L. D. 333.
Rule 35 invests the register and receiver with a discretion
61

1

in permitting testimony taken elsewhere. 2 L. D. 231. Lo­
cal offices have a discretion as to how far redirect and re­
cross-examination should be carried. 2 L. D. 234. Irregu­
larities waived by consent to tbe proceedings. 1 L. D. 474.
No commission need be issued to the officer under this
rule. 23 L. D. 142.
Notary public proper officer. 17 L.
4.
After notice, too late Io 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
receiver may in any case, and should in all cases when
necessary, personally direct the examination of the wit­
nesses, in order to draw from them all the facts within
their knowledge 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. 84.
Registers and receivers should carefully examine the
record and testimony in reaching their conclusions. 16 L.
D. 511.
Rule 38.—In preemption cases they will particularly as­
certain the nature, extent, and value of alleged improve­
ments; by whom made, and when; the true date of the
settlement 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.
Rule 39.—In like manner, under the homestead and other
laws, the conditions affecting the inception of the alleged
right, as well as the subsequent acts of the respective
claimants, must be fully and specifically examined.
Rule 40.—Due opportunity will be allowed opposing
claimants to confront and cross-examine witnesses intro• duced by either party.
See 11 L. D. 421.
Parties have undisputed right to be present at the hear­
ing and cross-examine the witnesses; 14 L. D. 472.
12.—EXCLUSION OF TESTIMONY.
Rule 41.—No testimony will be excluded from the rec­
ord by the register and receiver on the ground of any
objection thereto, but when objection is made to testi­
mony offered, the exceptions will be noted, and the tes­
timony, with the exceptions, will come up with the case
for the consideration of the commissioner. Officers tak­
ing testimony will, however, summarily put a stop to ob­
viously irrelevant questions.
Local officers are entrusted with the discretionary power
to determine whether additional testimony will cause un­
necessary 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 Tj .
D. 272.
Officers have a right to summarily put a stop to ob62

viously irrelevant questioning, but rule 56 makes it discre­
tionary with the officers to allow such irrelevant question­
ing at the cost of the party making such examination;
10 L. D. 628.
Local officers have no authority to exclude testimony
that is offered, but should summarily put a stop to ob­
viously irrelevant questioning; 9 L. D. 130.
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 taking “obviously irrelevant and
clearly incompetent 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 testimony. 21 L. D. 480.
See 18 L. D. 559.
Rule 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 writ­
ten 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.
liocal 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 testimony 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. See 28
L. D. 301.
13.—APPEALS.
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.)'
In cases dismissed for want of prosecution the register or
receiver will by registered letter notify the parties in inter­
est of the action taken, and that unless within thirty days
.a motion for reinstatement shall be made, the default of
the plaintiff will be final, and that no appeal will be al­
lowed: which notice shall be given as provided in circular
of October 28, 1886. (5 L. 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 appeal, the time for which shall be thirty days,
and run from the date of written‘notice to the plaintiff.
Rule 70, as amended October 26, 1885, provides: “Rules 43
to 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
decisions 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. D. 622.
Failure to appeal within thirty days from the rejection
of 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
practice must be complied with; 5 L. D. 671.
Distinction drawn between appeals from local and the
general land offices; 1 L. D. 472.
Rules 43 to 48, inclusive, pertain to appeals from the
local office. 27 L. D. 143.
Rule 44.—After hearing in a contested case has been had
and closed, the register 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 their last known address.
Ten days additional allowed where notice of decision is
sent through the mail: 7 D. D. 387; 1 D. D. 114; 1 D. D. 118.
As to costs, see 6 D. D. 765.
For construction of rule, see 5 R. 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 in,formation.” 1 L. D. 479.
Rule 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 D. D. 700.
Notice of appeal must be served on adverse party in in­
terest; appeal mav properly be dismissed on failure there­
of: 10 R. D. 546-595; 11 L. D. 407.
Rule 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 davs for reply
before transmittal of the record to the General Rand Office.
There is no form of words necessary to be used in giving
notice of appeal; 11 R. D. 406.
Ten days additional allowed to file appeal where notice
is sent through the mail; 7 R. D. 387.
Rule 46 applies with reference to the rights of parties
between themselves, and shall not operate as a restriction
upon the power or authority of the commissioner to reject
or approve the finding of the local officers upon a question

64

a£ fact or other decision upon law applicable thereto; 5 L.
D. 245.

Where notice of appeal is not served within required
time, the finding of the local office becomes final as to the
facts, and no appeal will lie from the decision of the com­
missioner affirming the action below. 18 R. D. 153.
Rule 47.—No appeal from the action or decisions of the
register and receiver will be received at the General Land
Office unless forwarded through the local officers.
Under rule 47, see 2 R. D. 169; 3 R. D. 184-608; 4 L. D.
277-571.
Rule 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
regulations.
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 R. D. 400 ; 5 R. D. 585;
13 R. D. 686; 12 R. D. 419; 7 R. D. 20; 7 R. D. 98; 6 R. 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; 13 R. 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
reversed by the commissioner in the absence of appeal,
under the second exception of rule 48 of practice; 6 L. D.
392; 5 R. D. 624; 5 R. D. 212.
See 25 R. D. 345; 24 L. D. 244, 385. Where one party ap­
peals from the decision of the local office, the case comes
up for disposition on its merits, and not under rule 48.
23 L. D. 562.
To justify the finality as to the facts provided for under
rule 48, the findings of the local office must be positive and
unequivocal and not argumentative or presumptive. 22 R.
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 R. D. 294.
When appeal is dismissed as insufficient the decision
below as to facts should not be disturbed, except under
rule 48. 20 R. D. 41, 456.
Where fraud or gross irregularity is suggested on the
face of the papers the General Rand Office is not pre­
cluded from an examination of the facts. 20 R. D. 516.
Failure to appeal from the decision of the local officers
'eaves their findings of facts final. 18 R. D. 409.



65

Appeal to secretary will not be considered in absence of
notice to opposite party, although 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.
Rule 49.—In any of the foregoing cases the commissioner
will reverse or modify the decision of the local officers or
remand the case, at his discretion.
2 L. I>. 265; 5 L. D. 212; 2 L. D. 655; 9 L. D. 439.
Rule 50.—All documents once received by the local offi­
cers must be kept on file with the cases, and the date of
filing must 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 supervision of those
officers.
4 L. D. 246.
14.—REPORTS AND OPINIONS.
Rule 51.—Upon the termination of a contest the register
and receiver will render a joint report and opinion in the
case, making full and specific 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 office
for thirty days following notice of decision. 4 L. D. 203.
After decision papers should be retained in local office ten
days after the expiration of thirty days provided in rule
51, to allow appellee to examine papers. 3 L. D. 38. 2 L.
D. 655.
Rule 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 D. D. 246-466. 5 D. D. 369. 6 L. D. 12. 10 L. D. 679-690.
Rule 53.—The local officers will thereafter take no fur­
ther action affecting the disposal of the land in contest
until instructed by the commissioner.
In all cases, however, where a contest has been brought
against any entry or filing on the public lands, and trial
has taken place, the entryman may, it 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 affi­
davit 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.
66

1 L. D. 156. 3 L. D. 55-257-284. 3 L. D. 309-434. 4 L. D.
466. 5 L. D. 369. 8 L. D. 121-463.
Rule 53 as amended March 15, 1892, permits 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
L. D. 411.
A relinquishment filed during the pendency of the appeal
leaves the land open to the first legal application subject
to the final disposition of the pending appeal. 13 L. D.
590. 12 L. D. 11-19. 10 L. D. 16-679. 9 D. D. 59-281-299-326578.
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 preemption, homestead, or
timber culture entries and claiming preference rights of
entry under second section of the act of May 14, 1880 (21
Stat. 140), must pay the costs of the contest.
4 L. D. 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 D. D. 92.
Under charge of non-compliance with the law, contest­
ant 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 D. D. 388; 10
L. D. 625.
w
This rule amended to allow register and receiver to tax
costs on cross-examination where the said examination is
irrelevant. 10 D. D. 680.
Officers may require deposit in advance for costs. 8 L. D.
493; 6 D. D. 599.
As to taxing costs. 26 L. D. 57.
Rule applies in hearings on special agent’,s report. 26
Tj . D. 519.
Rule 56.—The accumulation of excessive costs under rule
54 will not be permitted; but when the officer taking testi­
mony shall rule that a course of examination is irrelevant
and checks the same, under rule 41, he may, nevertheless,
in his discretion, allow the same to proceed at the sole
cost of the party making such examination. This rule will
apply also to cross-examination in contests covered by the
provisions of rule 55.
3 U. D. 52; 4 L. D. 207; 9 U. D. 134; 10 L. D. 628, 680; 12 U.
D. 109.
Rule 57.—Where parties contesting preemption, home­
stead, or timber-culture entries establish their right of
entry under the preemption or homestead laws of the land
in contest by virtue of actual settlement and improvement,
without reference to the act of May 14, 1880, the cost of
contest will be adjudged under rule 55.
6 L. D. 661; 26 L. D. 210.
Rule 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 advance
of trial, by deposit or otherwise, in a reasonable sun) or
67

sums, for payment of the costs of transcribing the
testimony.
6 B. D. 599; 8 B. D. 494.
Rule 59.—The costs of contest chargeable by registers
and receivers are the legal fees for reducing testimony to
writing. No other contest fees or costs will be allowed to
or charged by those officers directly or indirectly.
2 L. D. 223.
Rule 60.—Contestants 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 initiation of new proceedings
by the contestant is an abandonment of the first contest
and warrants a dismissal thereof. 10 B. D. 268.
Rule 61.—Upon the termination 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.
Rule 62.—When hearings are ordered by the commis­
sioner by the Secretary of the Interior, upon the discovery
of reasons for suspension in the usual course of examin­
ation of entries, the preliminary costs will be provided from
the contingent fund for the expenses of local land offices.
Rule 63.—The preliminary costs‘provided for by the pre­
ceding section will be collected by the register and receiver
when the parties are brought before them in obedience to
the order of hearing.
Rule 64.—The register and receiver will then require
proper provision to be made for such further notification as
may become necessary in the usual progress of the case to
final decision.
Rule 65.—The register and receiver will append to their
report in each case a statement of costs and the amount
actually paid by each of the contestants, and also a state­
ment 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.—APPEARS FROM DECISIONS Pp u ^t n g APPBICATiONS TQ ENTER PUBBIC BANDS.
Rule 66.—For the purpose of enabling appeals to be taken
from the rulings or action of the local land offices relative
to applications to file upon, enter, or locate the public lands
the following rules will be observed:
1. The register and receiver will endorse 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 B. D. 278, 280: 3 B. D. 281; 4 B. D. 9; 5 B. D. 380; 12
B. D. 235, 648; 14 B. D. 661.
Rule 67.—The party aggrieved will be allowed thirty
days from receipt of notice in which to file his apeal in the
local land office. Where the notice is sent by mail, five
days additional will be allowed for the transmission of
notice and five for the return of the appeal.
2 B. D. 280; 7 B. D. 388; 13 B. D. 250.
68

Rule 68.—The register and receiver will promptly for­
ward the appeal to the general land office, together with
a full report upon the case.
3 B. D. 119.
Rule 69.—This report should recite all the facts and the
proceedings had, and must embrace the following par­
ticulars:
1. A statement of the application and rejection, with
the reasons for rejection.
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, annotations, memo­
randa, and correspondence shown by the record relating to
said tract and to the proceedings had.
Rule 70.—Rules 43 to 48, inclusive, and rule 93 are ap­
plicable to all appeals from decisions of registers and re­
ceivers.
4 B. D. 234; 14 B. D. 661; 12 B. D. 93; 23 B. D. 412.
II.
(Proceedings before Surveyors-General.)
Rule 71.—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 re­
ceivers, unless otherwise provided by law.
III.
(Proceedings before the Commissioner of the General Band
Office and Secretary of the Interior.)
1.—EXAMINATION AND ARGUMENT.
Rule 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 und,er 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 pre­
vent the commissioner, in the exercise of his discretion,
from ordering further investigation when necessary.
5 B. D. 59, 352, 426: 9 B. D. 254, 626; 11 B. D. 261, 554; 15 B.
D. 95, 195; 22 B. D. 199.
Rule 73.—After the commissioner shall have received a
record of testimony in a contest case, thirty days will be
allowed to expire before any action thereon is taken, un­
less in the judgment of the commissioner, public policy or
private necessity shall demand summary action, in which
case he will proceed at his discretion, first notifying the
attorneys of record of his proposed action. 24 B. D. 203.
Rule 74.—When a case is pending on appeal from the
decision 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 stipula­
tion duly filed or good cause shown to the commissioner.
Rule 75.—If before decision by the commissioner either
party should desire to discuss a case orally, reasonable
opportunity 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 a^
herein provided, no oral hearings or suggestions will be
allowed.
2.—REHEARING AND REVIEW.
Rule 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 transmittal to 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
notice 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 pur­
pose of delay.
11 L. D. 624; 12 L. D. 447, 648; 13 L. D. 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 al­
lowed 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
applies in time for review, the case will be considered on
its merits. 26 L. D. 639.
Rule 80.—No officer shall entertain a motion after an
appeal from his decision has been taken. 3 D. D. 540.

3.—APPEAL f r o m : THE COMMISSIONER TO
SECRETARY.
Rule 81.—No appeal shall be had from the action 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 notice, to appeal from such decision of said local
officers.
Subject to this provision, an appeal may be taken from
the decision of the commissioner of the general land office
to the Secretary of the Interior upon any question relat­
ing to the disposal of the public lands and to private land
claims, except in case of interlocutory orders and decisions
and orders for hearing or other matter resting in the dis-.

70

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 case an
appeal upon the merits be finally allowed.
9 L. D. 389; 10 L. D. 252; 13 L. D. 279, 348, 707, 721; 15 L.
D. 188; 14 L. D. 698.
Rules 81 to 103, inclusive, pertain to appeal from com­
missioner. 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 party of the defect, and if not
amended within fifteen days from the date of the service
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 that a party has no right
of appeal to the secretary, the party against whom such
decision is rendered may apply to the secretary for an order
directing 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. 193, 244, 527; 21 L. D. 122; 20 L. D. 178, 287.
Rule 84.—Applications to the secretary under the pre­
ceding rule shall be made in writing, under oath, and shall
fully and sepcifically set forth the grounds upon which the
application is made.
n 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 action on
che case at issue for twenty days from service of notice of
his decision, to enable the party against whom the decision
is rendered to apply to the secretary for an order, in ac­
cordance 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 sixty 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.
Rule 87.—When notice of the decision is given through
the mails by the register and receiver or surveyor-general,
five days additional 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 D. D. 13^, 501, 697;
14 L. D. 428; 24 L. D. 323, 472; 20 L. D. 89, 538.
Rule 88.—Within the time allowed for giving noticf^ 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
complains.

71

9 B. D. 12, 278, 560, 599; 10 B. D. 547, 11 B. D. 198, 216; 12
B. D. 27, 30, 99; 12 B. D. 249, 306; 14 B. D. 218; 15 B. D. 56724 B. D. 231, 490; 20 B. D. 329.
What the specifications of error must contain. 28 B. D
11; 27 B. D. 54.
Rule 89.—He may also, within the same time, file a writ­
ten argument with citation of authorities, in support of hia
appeal.
Rule 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 B. D. 112, 252; 6 B. D. 315; 8 B. D. 470; 14 B,
D. 249; 24 B. D. 231.
Rule 91.—The appellee will be allowed thirty days from
the expiration of the sixty days allowed for appeal in
which to file his argument.
Rule 92.—The appellant shall be allowed thirty days from
service of argument of appellee in which to file argument
strictly in reply, and no other or further arguments or mo­
tions of any kind shali be filed without permission of the
commissioner or secretary and notice to the opposite party.
5 B. 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 B. D. 409, 547; 11 B. D. 48, 49, 249, 385, 392; 12 B. D. 61;
14 B. D. 661; 24 B. D. 230, 323, 402; 22 B. D. 89.
Rule 94.—Such service shall be made personally or by
‘TPP'lQfp'TPrl liif + iù'p
1 B. D. 110; 3 B. D. 135; 5 B. D'. 476, 479; 9 B. D. 170, 189;
11 B. D. 249; 12 B. D. 61; 24 B. D. 490.
Rule 95.—Proof of personal service shall be the written
acknowledgment of the party served, or the affidavit of the
person making the service attached to the papers served,
and stating time, place, and manner of service.
3 B. D. 135; 5 B. 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, except in case of notice to resident attorneys,
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.
Rule 98.—Notice of interlocutory motions and proceed­
ings before the commissioner and secretary shall be served
personally or by registered letter, and service proved as
provided 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
72

party does not appear will be governed by the foregoing
rules as to notices of decisions, time for appeal, and filing
of exceptions and arguments, 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 hereafter 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
thé office in which the case is pending a statement in writ­
ing, giving his name and postoffice address and the name
of the party whom he represents; nor shall any person who
has heretofore appeared in a case be entitled to a notice
unless within fifteen days after being requested to file such
statement he shall comply with said requirement.
9 B. D. 12.
Rule 102.—No person not a party to the record shall in­
tervene in a case without first disclosing on oath the na­
ture 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 interest are represented by attorneys, such at­
torneys will be recognized as fully controlling the cases of
their respective clients.
3 B. D. 409, 607 ; 4 B. D. 9; 14 B. D. 443; 24 B. 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. U. 480; 14 B. D. 443; 24 B.
D. 277.
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 deem.e.t
notice to the party in interest.
1 B. D. 120; 3 B. D. 184, 608, 409; 4 B. D. 9; 11 B. D. 395, 441;
15 B. D. 308; 20 B. D. 89.
Notice to the attorney is notice to the party.
25 B. D. 36.
Rule 107.—All attorneys practicing before the general
land office and Department of the Interior must first file
the oath of office prescribed by Section 3478, Blnited States
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 prepara­
tion of arguments, will be allowed full opportunity to con­
sult the records of the case, the abstracts, field notes, and
tract books, and the correspondence of the general land
office or of the department not deemed privileged and con­
fidential; and whenever, in the judgment of the commis­
sioner, it would not jeopardize any public or official inter­
est, may make verbal inquiries of chiefs of divisions at
their respective desks in respect to the papers or status
of said case; but such inquiries will not be made to said
73

chiefs or other clerks of division except upon consent of
the commissioner, assistant commissioner, or chief clerk,
and will be restricted to hours between 11 a. m. and 2 p, m.
4 B. D. 336; 5 B. 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 hearing, shall be pro­
hibited from further practicing before the department.
Rule 110.—Should either party desire to discuss a case
orally before the secretary, opportunity will be afforded
at the discretion of the departm.ent, but only at a time
specified by the secretary, or fixed by stipulation of the
parties.
20 B. D. 122.
Rule 111.—The examination of cases on appeal to the
commissioner or secretary will be facilitated by filing
in printed form such arguments as it is desired to have
considered.
Rule 112.—Decisions of the commissioner not appealed
from within the period prescribed become final, and the
case will be regularly closed.
4 B. D. 508; 85 B. D. 422; 6 B. D. 6; 14 B. D. 683.
Rule 113.—The decision of the secretary, so far as re­
spects the action of the executive, is final.
Rule 114.—Motions for review or rehearing before the
secretary must be filed with the commissioner of the gen­
eral land office within thirty days after notice of the de­
cision complained of, and will 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 or rehearing, one or both as the
case may be, upon which it is based, and may be accom­
panied by an argument in support thereof.
Upon its receipt, the commissioner 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
office, whereupon the commissioner will remove the sus­
pension and proceed to execute the decision before ren­
dered. 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 argu­
ment in support thereof, on the opposite 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 further argument.
6 B. D. 796; 10 B. D. 690; 12 B. D. 423; 13 B. D. 34; 23 B. D.
244, 406; 22 B. D. 671; 20 B. D. 407, 419.
When motions for review and rehearing have been acted
upon, subsequent motions will not act as a supersedeas,
except on express order of the secretary.
26 B. D. 443; 25 B. D. 154.
Petition for re-review should not be filed in the local
office, but should be addressed to the Secretary of Interior.
25 B. 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.

74

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 suffi­
cient cause affecting the legality or validity of the same.
Applications to contest must be filed with the register
and receiver.
An affidavit is required in each case, setting forth the
facts which constitute the grounds of contest. This affi­
davit should be corroborated by the affidavits of one or
more witnesses in cases where an entry has been allowed
and remains of record. Contest affidavits may be made
before any officer authorized to administer oaths,
A person who contests and secures the cancellation 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 will be
reserved from entry by any other person, though appli­
cations tO' enter made by other persons must, if presented,
be received and held to await the expiration of the success­
ful contestant’s preference right, after which such inter­
vening applications will be acted upon in the order in
which they have been received.
Where an entry exists that is prima facie valid 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 application will be received, or any rights recognized
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. Thereafter,
and until the period accorded a successful contestant has
expired, or he has waived his preferred right, applications
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 expiration of the period accorded the suc­
cessful contestant or upon the filing of his waiver of his
preferred right.
If' a contest is brought against the heirs of a deceased
entryman, the affidavit of contest must state the names of
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 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, and if there’be none, then
to the person having such infant or person of unsound
mind in charge. (19 B. D. 45.)
It is provided by the amendatory Act of Congress ap­
proved July 26, 1892 (27 Stat. B., 270): that should any per­
son who has initiated a contest die before the final termin­
ation of the same, said contest shall not abate by reason
thereof, but his heirs who are citizens of the United States
may continue the prosecution of such contest and be en­
titled to the same rights that contestant would have been if

75

his death had not occurred. In any case, when the death
of the contestant is suggested upon the record, his heirs
who are citizens of the United States will in all subsequent
proceedings be treated as parties to the case, provided the
dearth of contestant occurred subsequent to the passage of
said act of July 26, 1892.
It is held by the Supreme Court of the United States
(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 exclusively, 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.
Where 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 elapsed,
unless fraud in procuring the leave of absence is charged.
(Hiltnpr vs. Wortler, 18 L. D. 331.)
No homestead, timber-culture, desert land, or preemp­
tion entry can be contested after the lapse of two years
from the date when final certificate has issued thereon.
(Sec. 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 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 a
motion for a new trial or in support of a mineral applica­
tion or protest (rule 72 of Rules of Practice), 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.
When, pending a contest, a relinquishment of his entry
is filed by the defendant, the register and receiver should
accept the relinquishment as the result of the contest and,
cancelling the entry thereupon, give proper notice to the
contestant, 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
injury may be properly entertained on the allegation that
the relinquishment was in fact an independent transaction
and not the result of the contest, independent of the time
when the relinquishment is filed, being before or after the
hearing.
Contests of homestead entries on ground of abandon­
ment can not be brought until after the expiration of six
months from date of entry.
SPECULATIVE

AM)

COLLUSIVE

CONTESTS.

No preference right of entry can be acquired through a
contest which is shown by the evidence not to have been
prosecuted in good faith. (Dayton v. Dayton, 6 L. D. 164.)
According to the well-settled interpretation of the home­
stead law in this -department, residence upon a homestead
is not required as a prerequisite to a patent, beyond the
period of five years, and it is held that after a patent has
76

been earned by five years’ actual residence and improve­
ment, a homestead entry can not be successfully contested
because of a change of residence therefrom within the stat­
utory period for the submission of final proof. (Lawrence
V. Phillips, 6 L. D. 140; Davis v. Fairbanks, 9 D. D. 530.)
The period within which final homestead proof may be
submitted was extended to eight years from date of entry
by the act of July 26, 1894 (28 Stat. L. 123), as to all entries
then existing.
DISQUALIFICATION

OF

LOCAL

OFFICERS.

The Act of Congress of January 11, 1894 (28 Stat. L. 26),
enacts as follows, viz.:
That no register or receiver shall receive evidence in,
hear, or determine any cause pending in any district land
office in which cause he is interested, directly or indirectly,
or has been of counsel, or where he is related to any of the
parties in interest by consanguinity or affinity within the
fourth degree, computing by the rules adopted by the
common law.
Sec. 2. That it shall be the duty of every register or
receiver so disqualified to report the fact of his disqualifi­
cation to the commissioner of the general land office as
soon as he shall ascertain it, and before the hearing of
such cause, who thereupon, with the approval of the Secre­
tary of the Interior, shall designate some other register,
receiver, or special agent of the Land Department to act
in the place of the disqualified officer, and the same author­
ity is conferred on the officer so designated which such
register or receiver would otherwise have possessed to act
in such case.
CONTEST AFFIDAVIT.
(Form 4.)

........................... County of...........................................
Personally appeared before me ..................................................
of .......................... County, State of .......................... . who upon
his oath says that he is well acquainted with the tract of
land embraced in the homestead entry of .............. ....................
No......................... made................ ,19.., at U. S. Land Office at
.............. upon ................ (Here describe land)..............................
and knows the present condition of the same; that the said
............... (Here insert entryman’s name).........................................
(Here insert grounds of contest)......................................................
and this the said contestant is ready to prove at such time
as may be named by the register and receiver for a hear­
ing in said case; and he therefore asks to be allowed to
prove said allgations, and that said homestead 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 taxed to him
Subscribed and sworn to before me this................... day of
......................................... 19....
CORROBORATING WITNESSES.
Also appeared at the same time and place..........................
and............................. who, being duly sworn, despose and say
that they are acquainted with the tract described in the

77

CLIMATIC HINDRANCES.

within affidavit of ..............................and know from personal
observation that the statemetns therein made are true.
Subscribed and sworn to before me this..................... day of
........................ 19....

'j'he proviso annexed to Section 2297, Revised Si at ties,
by amendatory act of March 3, 1881 (21 Stat. L, 511), which
applies onlj’’ to homestead settlers, provides that in case
such settler has been prevented by climatic reasons from
establish ner actual residence upon his homestead v^thin
six moiiihs from date of entry, the commissioner cf the
general land office may, in his discretion, allow him twelve
mouths 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, duly corroborated
by two credible wutnesses, setting forth in detail the
storms, fioods, blockades by snow or ice, or other hin­
drances dependent upon climatic causes which rendered it
impossible for him to commence residence wuthin six
months. A claimant can not be allowed twelve months
from entry when it can be shown that he might have es­
tablished 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 disappear will
imperil his entry in case of a contest.

MISCELLANEOUS PROVISIONS.
HEIRS OF A HOMESTEIU

SETTLER.

Where a homestead settler dies before the consumma­
tion of his claim, the widow, or in case her death, the heirs
may continue settlement or cultivation, and obtain title
upon requisite proof at the proper time. If the widow
proves up, the title passes to her: if she dies before prov­
ing up and the heirs make the proof, the title will vest in
them. Sec. 2291, Rev. Stat.
Where both parents die, leaving infant children, the
homestead may be sold for cash for the benefit of such
children; and the purchaser will receive title from the
United States, or residence or cultivation may continue for
the prescribed 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. Bernier (147
U. S. 242).
A homestead right cannot be devised away from a wid­
ow or miner children.
In case of the death of a person after having entered a
homestead, the failure of the widow, children, or devisee of
the deceased to take up residence on the land within six
months after the entry or otherwise to fulfill the demands
of the letter c:i the law as to residence will not necessarily
subject the entry to forfeiture on the ground of abandon­
ment. If the land is cultivated in good faith, the law will
be censidered as having been substantially complied with.
(Tauer vs. The Heirs of Walter A. Mann, 4 L. D. 433.)

HOMESTEAD CLAIMS NOT LIABLE FOR A DEBT
AND NOT SALABLE.

V
¿b


f

HOMESTE.ID

CLAIMANTS
INSANE.

WHO

No lands acquired under the provisions of the homestead
laws are liable 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, cemetery, 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.

BECOME

The rights of a homestead claimant who has become
insane may, under act of June 8, 1880, be proved up and his
claim perfected by any person duly authorized to act for
him during his disability. 21 Stat. L. 166.
Such claim must have been initiated in full compliance
w»th law, by a person who was a citiezn or who had declaied 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 subsequently to the initiation of
his claim.
Claimant must have complied with the law up to the
time of becoming insane; and proof of compliance will be
rvov.btd tC’ cover only the period prior to such insanity;
but the acc will not be construed to cure a failure to com­
ply with the law when the failure occurred prior io such
insanity.
The final proof must be made by a party who.’e author­
ity to act for the insane person during his disability snail
be dul?/ certified under seal of the proper probate court.
78

INDIAN HOMESTEADS.

By the provisions of the Indian appropriation act of
July 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 o,i
account of such entries or proofs.
Indian homesteads can not be commuted and are not
subject to sale, assignment, lease, or incumbrance. All
patents issued for Indian homesteads under this act must
be of the legal effect and declare 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 have been made, or,
in case of his decease, of his widow and heirs, accord ng
to the laws of the State or Territory where such land is
located, and that at the expiration of said period the United
States will convey the same by patent to said Indian or
his widow and heirs, as aforesaid, in fee, discharged of
79

11
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
commissions, but will be required to furnish a certificate
from the agent of the tribe to which he belongs that he is
an Indian of the age of 21 years, or the head of a fam.ly,
and not the subject of any foreign country.
HEIRS,

EXECUTORS

AND

benefit of the latter and makes him a citizen and^qualified
to make homestead entry.
NEC ESSAR1

ADMINISTRATORS.

Where application is made by heirs, satisfactory proof
of heirship is required. This must be the best evidence that
can be obtained, and must show that the parties applying
are the heirs and the only heirs of the deceased. Where
application is made by executors, a certificate of executor­
ship from the probate court must accompany the appli­
cation.
Where application is made by administrators, the orig­
inal or a certified copy of the letters of administration must
be furnished.
CITIZENSHIP

AND

NATLRAEIZ ATION.

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 naturalized, evi­
dence of naturalization should be filed with the original
entry application. If not naturalized, evidence of declara­
tion of intention should be filed at the time the first entry
or application 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
appear 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 the rules of evidence governing such proof.
NATURALIZATION.

Under Section 2289 of the Revised Statutes, any person
who is a citizen of the United States, or who has filed his
declaration 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.
Under Section 2172 of the Revised Statutes, it is provided
that the children of persons who have been duly natural­
ized under any law of the United States, being under the
age of 21 years at the time of the naturalization of their
parents, shall, if dwelling in the United States, be conisdered as citizens thereof. Persons coming under this pro­
vision and desiring to make homestead entry should pre­
sent with their application a copy of their father’s natural­
ization papers, with an affidavit identifying the applicant
as the child of the person naturalized. See 8 L. D., p. 60;
11 L. D. 578.
In both of these cases it was held that the naturalization
of the father, during the minority of the son, inures to the
80

TIMBER.

Homestead or preemption claimants who have made
bona fide settlements upon public land, and who are living
upon, cultivating; and improving the same, in accordance
with law and the rules and regulations of this depart­
ment, with the intention of acquiring title thereof, are per­
mitted to cut and remove, or cause to be cut and removed,
from the portion thereof to be cleared for cultivation, so
much timber as is actually necessary for that purpose, cr
for buildings, fences and other improvements on the land
entered.
In clearing for cultivation, should there be surplus of
timber over what is needed for the purposes above speci­
fied, the entryman may sell or dispose of such surplus; but
it is not allowable to denude the land of its timber for the
purpose of sale or speculation before the title has been con­
veyed to him by patent.
The abandonment to settlement claim after the timber
has been removed is presumptive evidence, that the claim
was made for the primary purpose of obtaining timber.
Squatters upon public lands have no right to cut timber.
UN M AR R IEI) WO M E N.

June 6, 1900, Congress passed the following act: “Be it
enacted by the Senate and House of Representatives of
the United States of America in Congress assembled:
That the third section of the Act of Congress approved
May fourteenth, eighteen hundred and eighty, entitled
‘An Act for the relief of settlers on the public lands,’ be
amended by adding thereto the following:
“Where an unmarried woman who has heretofore set­
tled, or may, hereafter settle, upon a tract of public land,
improved, established and maintained a bona fide residence
thereon, with the intention of appropriating the same for
a home, subject to the homestead law, and has married,
or shall hereafter marry, before making entry of said land,
or before making application to enter said land, she shall
not on account of her marriage forfeit her right to make
entry and receive patent for the land: Provided, That she
does not abandon her residence on said land, and is other­
wise qualified to make homestead entry: Provided, fur­
ther, That the man whom she marries is not, at the time
of their marriage, claiming a separate tract of land 'under
the homestead law.
“That this act shall be applicable to all unpatented
lands claimed by such entrywoman at the date cf
passage.’’

(

PUBLIC LAND SURVEYS.
The public surveys are made upon the rectangular sys­
tem, by which the land is ‘laid out like the squares on a
checker-board. A line called the BASE-LINE is first run
off upon the ground from east to west. At some conven­
ient point 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
lines called TOXVNSHIP LINES, at intervals of six miles,
81

along
meridian and base-lines and at right angles with
them. This divides the land into TOWNSHIPS six miles
square.
The township is then divided in a similar manner by
running lines at right angles with the township lines, at
intervals of one mile. These are called SHCTION PiNHS,
and divide each township into SECTIONS one mile square
and containing 640 acres. No further subdivisional lines
are run by the government surveyors, but a p^st, called
a quarter-section post, is placed on the line, half way
between the corners of the sections, and, by connecting
these posts, the section is divided into four quarters, called
the northeast quarter, the northwest quarter, the southeast
quarter, and the southwest quarter, each containing 160
acres.
Each quarter may be further divided into four quarters
by running lines half way between the quarter-section
lines. These smallest subdivisions contain 40 acres each,
and are designated as the northeast quarter of the north­
east quarter, the northwest quarter of the southeast quar­
ter, etc.
Some variations from the above plan arise through
errors in making the survey, but this system is followed as
closely as practicable. The deviations are found generally
on the north and west sides of townships, where the small­
est subdivisions may contain more or less than forty acres.

How to Find Your Land.—

The following extract from “Copp’s Settler’s Guide” 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 and 36 are
called school sections, and, if agricultural, belong to the
State, or are reserved in a territory for school purposes.
They can only be bought at the State land office, unless
they contain minerals or were settled upon prior to sur­
vey, when they are sold at the United States Land Office.
The sections on the northern and western boundaries of
a township are fractional, i. e., they do not contain 640
acres. The small fragments are called lots, and are num­
bered from one upwards in each section. Frequently sec­
tions in the interior are fractional on account of lakes,
reservations and other causes.
How Townships are Numbered.—

A tier of townships running 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 num­
bered 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 B
means a 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,

TOWNSHIP PLAT.

Township .......................

Range.
County .

TOWNSHIP CORNBR MARKED BY POST.

1”'“

-f-

-4-..

—1
-f-

—I"'

..4-

—i--

a
-f- — 1+0--

—!—
--1!8--

-----HD

---sV
1

—1+5-1

1

—1—
I
J
--ik---

Establish inti- Corners by Means of Posts.—

Township, sectional or mile corners, and quarter-sec­
tional 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.
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
^arth must be squared oft sufficiently smooth to admit of
(receiving 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 five 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
83

1<
1

I ----- h—
1
1
—ajo— —251-- —2i2- --213 - ---2r4-1
1 1 " ■ 1
-i-.2^9----aja- —a'jT-' --26_j—
1 '
1
-sk-- ---S'S--

—slt-- —352’-

UL-

1
1
-i-.-4I
! —
11 -

- 3;6--

1
82

-

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 protrud­
ing 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
townships, it is to be set in the earth diagonally.
On each surface of the post is to be marked the num­
ber 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, it is to be marked thus:
( IW.
( R. IW
From N. to E . 4 T. IS.
From E. to S. -J 2S.
(S. 31.
(6.
2W.)
f2W.
From N to W. •<
IS. X
3. ^From W. to S. x 2S.
36. j
(l.

These marks are not only to be distinctly but 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.
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 town­
ship corner posts), and on each side of the squared sur­
faces (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 num­
bers of its township and range; and to make such marks
yet more conspicuous 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-flve 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 ^4 S., to indicate what it stands for.
QUARTER-SECTION CORNER.

Marked by post, mound and pits.

NotcJiiiiK,’ Corner I’osts.—

Township corner posts, common., to four townships, are
to be notched with six notches on bach of the four angles
of the squared part set to the cardinal points.
All mile posts on township lines must have as many
notches on them, on two opposite angles thereof, as they
are miles distant from the township corners, respectively.
Each of the posts at the corners of sections in the interior
of the township must indicate by a number of notches on
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, it
will be marked and notched as aforesaid, and answer for
the corner, in lieu of a post; the kind of tree and its diam­
eter being given in the field-notes.
SECTION

CORNERS.

Marked by post, mound and pits.
Uearini;- Tree«.—

The position of all corner posts, or corner trees of what­
ever description that may be established, is to be evidenced
in the following manner, viz.: From such post or 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 to 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.
At all township corners, and at all section corners, on
range or township lines, four bearing trees are to be
marked in this manner, one in each of the adjoining
sections.
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.
85

From quarter-sections and meander corners two bear­
ing trees are to be marked, one within each of the adjoin­
ing sections.
Corner Stones.—

Where it is deemed best to use stones for boundaries
in lieu of posts surveyors may at any corner insert end­
wise into the ground, to the depth of 7 or 8 inches, a stone,
the number of. cubic inches in whi«h 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.
SEtTlON

CORNER R^IRKED BY
AND PITS.

STONE,

MOUND

Uiirking Corner Stones.—

Stones at township corners, common 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 interior of a 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 cn
each of the west, south and east sides or edges.
Stones when used for quarter-section corners will have
Vt cut on them—on the west side on north and south lines,
and on the north side on east and west lines.
Mounds.—

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 be stated in the field-books.
Perpetuity in the mound is a great desideratum. In
forming it with light, alluvial soil, the surveyor may find
it necessary to make due allowance for the future set­
tling of the earth, and thus making the mound more ele­
vated than would be necessary in a more compact and
tenacious soil, and increasing the base of it. In so doing
the relative proportions 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 mound, 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 ill M<»iiii<Is.—

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
ners.—

to

Township

or

Section

Cor­

Whenever bearing trees are not found, mounds of earth,
or stone, are to be raised around posts on which the cor­
ners are to be marked in the manner aforesaid. Wherever
a mound of earth is adopted the same will present a con
ical 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

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 situation where the nature of the ground, or the cir­
cumstances of its locality, shall be such as may prevent
or prove unfavorable to the erection of a mound, you will
perpetuate such corner by selecting, in the immediate vicin­
ity thereof, a suitable plot of ground as a site for a bear­
ing or witness mound, and erect thereon a mound of earth
in 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-

86

87

TT
stone of the bearing or witness mound so placed and
erected.
Double Comers.—

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 two (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 corners,’’ 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 with the letters C. C.
in addition to the marks.
You will recollect* that the corners (whether section or
township corners) are not to be planted diagonally, like
those which are common to four, but with the flat sides
facing the cardinal points, and on which the notches and
marks are made as usual. This, it will be perceived, will
serve yet more fully to distinguish the standard parallel
from other lines.

INSTRUCTIONS FOR SURVEYS MADE
SINCE JUNE 1, 1864.

this means the standard and closing corners will be read­
ily distinguished from each other.
Nofcliingp Corner Section Posts.—

Posts or stones at the corners of sections 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 addition to the manner of establishing
corners of public surveys by mounds of CArtn with depos­
its at the point of the corner, deputy surveyors are re­
quired to drive in the center of one of the pits at each sec­
tion and township corner sawed or hewed stakes not less
than two inches square and two feet in length; said stakes
to be marked in the manner heretofore prescribed for
making corner posts, and to be driven one foot in the
ground. At corners common to four townships, the stakes
are to 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 corner. This requirement does not apply to
quarter-section corners.
tOUNUllS

IN

REGIONS REMO’l’E FllOxM
AND STONE.

TIMIIER

By instructions to surveyors-general, dated June 1, 18G4,
the Surveying Manual was modifled in the following
particulars;
I’osts ill Mown (Is.—

All posts in mounds will hereafter be planted or driven
into the ground to a depth of twelve inches, at the pre­
cise corner point; and the charcoal, charred stake, O’"
marked stone required in the “Manual’’ will be deposited
twelve inches below the surface, against the north side of
the post when the deputy is running north, and against
the west side when the deputy is running west, etc.
Township mounds will be five feet in diameter at their
base, and two and a half feet in perpendicular height.
Posts in township mounds are therefore required to be four
and a half feet in length, so as to allow twelve inches to
project above the mound.
Mounds at section, quarter-section and meander corners
will be four and a half feet in diameter at their base, and
two feet in perpendicular height, the posts being four feet
in length, leaving twelve inches to project above the mound.
Pits should be of uniform dimensions. The 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 townships, 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 will be
dug—two in line on either side of the post, and one on the
line north or south of the corner, as the case may be. By
88

Bc.'iriug Trees.—

Where a tree not less than two and a half inches in
diameter can be found for a bearing tree within three hun­
dred links of the corner, it should be preferred to the pit.
Meandering Navigable Streams.—

Standing with the face looking down stream, the bank
on the left hand is termed the “left bank,’’ 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 tak­
ing the courses and distances of their windings. At those
points where either the township or section lines inter­
sect the banks of a navigable stream, posts, or, where nec­
essary, 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 num­
bers of the adjoining land? By examining the east corner
89

À

"T
of the post you will see notches. Every notch 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 would then have the exact
location of this post in the township, at the corner between
sections 9, 10, 15 and 16. You could locate on either of
these except 16, which is school land.

ACT MAY 14, 1880.
Il e I i II <1 ii i .s lull eii t.—
Be it enacted by the Senate and House of Representa­
tives of the United States of America in Congress as­
sembled: That when a preemption, homestead, or tim­
ber-culture claimant shall 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.
l*i‘cfereiice Rijyilit.—

Section 2. In all cases where any person has contested,
paid the land office fees, and procured the cancellation of
any preemption, 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 cancellation,
and shall be allowed thirty days from date of such notice
to enter said lands: Provided, That said register shall be
entitled to a fee of one dollar for the giving of such notice,
to be paid by the contestant, 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 proviso,
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
continue 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 contestant would have had if death had not occurred.
Section 3 of this act has been quoted heretofore under
the head of .Settlement.

ACT AUGUST 30, 1890.
By act of above date one cannot acquire title to more
than 320 acres, under all of the public land laws. The fol­
lowing 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 occupa­
tion, 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 limitation shall not «perate to curtail the right of any
person who has heretofore made entry or settlement or
the public lands, or whose occupation, entry, or settlemen
is validated by this act: Provided, That in all patents fo^
90

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 de­
scribed a right of way thereon for ditches or canals con­
structed by the authority 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
preserves 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 modification of the desert land act,
providing fully for actual reclamation of the land entered,
and preventing speculative accumulation of the land, with
a saving of all rights under existing entries.
Section 3 enlarges Section 2288, Revised Statutes, by
including reservoirs or ditches for irrigating purposes.
Section 4 repeals the preemption 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 ac­
quisition for manufacturing and commercial purposes and
for town sites.
Section 17 allows mineral entries, in addition to the
maximum allowance of 320 acres allowed by existing law.
Sections 18, 19, 20 and 21 relate to ditches and 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 th©
Department of the Interior.
Section 24 authorizes the President to set apart trust
reserves, 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
ruary 13, 1891.
Sec. 7. That whenever any of the lands acquired by the
agreements of this act ratified and confirmed, shall by
91

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 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 the 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 patent therefor at the expiration of twelve
months from the date of settlement upon said homestead,
and any person otherwise qualified who has attempted to,
but for any cause failed to secure a title in fee to a home­
stead under existing law, or who made entry under what
is known as the commuted provision of the ht»mestead law,
shall be qualified to make a homestead entry upon any of
said lands.

OKLAHOMA PROPER.
Act of March 2, 1889, entitled “An act making appropria­
tions for the current and contingent expenses of the
Indian Department, and for fulfilling treaty stipulations
with various Indian tribes for the year ending June 30,
1890, and for other purposes.”
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 3, 1893, is made applicable to the
Cherokee Outlet. The sections are as follows:
Section 13. That the lands acquired by the UnTed
States under said agreement shall be a part of the public
domain, to be disposed of only as herein provded, and sec­
tions sixteen and thirty-six of each township, whether sur­
veyed 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
vided (except that Section two thousand three hundred
and one of the Revised Statutes shall not apply) : 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 und r
what is known as the commuted provision of the home­
stead 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 twentythree hundred and four and twenty-three hundred and fr e
of the Revised Statutes shall not be abridged: And pro­
vided further. That each entry shall be in square form
as nearly as practicable, and no person be permitted to
92

enter more than one 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 pro­
vision 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 townsites, under Sections twenty-three hundred and eightyseven and twenty-three hundred and eighty-eight of the
Revised Statutes, bu| 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 fthe Seminole Indians, including the
provisions pertaining to forfeiture, shall apply to and regu­
late the disposal of the lands acquired from the Muskogee
or 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 Pfesident is hereby authorized to ap­
point 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 de­
gree of longitude in the Indiah 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
reported to the President and by him to Congress at the
next session, and to the council or councils of the nation
or nations, tribe or tribes, agreeing to the same for rati­
fication, and for this purpose the sum of twenty-five thou­
sand dollars, or as much thereof as may be necessary, is
hereby appropriated, to be immediately available. Pro­
vided, That said commission is further authorized to sub­
mit to the Cherokee Nation the proposition that said nation
shall cede to the United States in the manner and wth
the effect aforesaid, all the rights of said nation in said
lands upon the same terms as to payment as is provided
in the agreement made with the Creek Indians of date
of January nineteenth, eighteen hundred and eighty-nine,
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 there­
upon become a part of the public domain for the purpose
of such disposition as is herein provided, and the Presi­
dent is authorized, as soon thereafter as he may deem ad­
visable, by proclamation to open said lands to settlement in
the same manner and to the same effect as in this act
provided concerning the lands acquired from said Creek
Indians; but until said lands are opened for settlement
by proclamation of the President, no person shall be per­
mitted 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 proclama­
tion dated March 23, 1889, declared the lands, known as
93

Oklahoma proper, opened to settlement and entry at noon,
April 22, 1889.
Tlie “Sooner” Clause.—

The President closed his proclamation in the following
language:
“Warning 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 provision of the Act of Congress to the above effect.’’

OKLAHOMA ORGANIC ACT.
(The Part Relating to Hands and Townsites.)
AN ACT to provide a temporary governrrient for the Ter­
ritory of Oklahoma, to enlarge the jurisdiction of the
United States Court in the Indian Territory, and for
other purposes. (Approved May 2, 1890.)
(This act is applicable to the Cherokee Outlet.)
Be it enacted by the Senate and House of Representa­
tives of the United States of America, in Congress as­
sembled :
*************
Scliool Lands.—

Sec. 18. 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 s xteen and thirty-six, or either of them, are occupied by
actual settlers prior to survey thereof, the county com­
missioners of the counties in which such sections are so
occupied are authorized to locate other land^ 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 IjiiiKl Strip.—

All the lands embraced in that portion of the Terri­
tory of Oklahoma known as the Public Land Strip shall be
open to settlement under the provisions of the homestead
laws of the 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 occu­
pants of the lands in said Public Land Strip at the time
of the passage of this act shall be entitled to have prefer­
ence 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 occu­
pied 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, eight­
een hundred and eighty-nine, and also the land acquired

94

in pursuance of an agreement with the Seminole Nation
of Indians, by release and conveyance, dated March six­
teenth, eighteen hundred and eighty-nine, which may here­
after be open to settlement, shall be disposed of under the
provisions of Sections twelve, thirteen and fourteen of the
“Act making appropriations for the current and contin­
gent expenses 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 hun­
dred and eighty-nine, and under Section two of an “Act
to ratify and confirm an agreement with the Muskogee
(or Creek) Nation of Indians in the Indian Territory, and
for other purposes,” approved March first, eighteen hun­
dred and eighty-nine: Provided, however. That each set­
tler under and in accordance with the provisions of said
acts shall, before receiving a patent for his homestead on
the land hereafter opened to settlement as aforesaid, pay
to the United States for the land so taken by him, in addi­
tion to the fee provided 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 set­
tler, under and in accordance with the provisions of said
homestead law, shall before receiving a patent for hhs
homestead pay to the United States for the land so taken
by him, in addition 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 interest 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 Oklahoma Territory, which have been
set apart for school purposes, to educational societies, or
missionary boards at work among the Indians, shall not
be opened for settlement, but are hereby granted to the
respective educational societies or missionary boards for
whose use the san^e has been set apart. No oart 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 Indian 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 affect
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.
Lnnd Oflice—I’u hlie IjauA Strip.—
Sec. 19. That portion of the Territory of Oklahoma here­
tofore known as the Public Land Strip is hereby declared a
public land district, and the President of the United States
is hereby empowered to locate a land office in said district,
at such a place as he shall select, and to appoint in con­
formity with existing law a register and receiver of said
land office. He may also, whenever he shall deem it nec­
essary, establish another additional 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 di­
rected by the President, cause the lands within the ter­
ritory to be properly surveyed and subdivided where the
same has not already been done.
Lnii<L Oflice Procedure.—

Sec. 20. 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 nearly as may be; and no person who
shall at the time be seized in fee simple of 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 nundred 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.
Conmiiitatioii.—

Sec. 21. That any person entitled by law to take a home­
stead in said Territory of Oklahoma, who has already lo­
cated and filed upon or shall hereafter locate and file
upon a homestead within the limits described in the Presi­
dent’s proclamation of April first, eighteen hundred and
eightv-nine, and under and in pursuance of the laws ap­
plicable to the settlement of the lands opened for settle­
ment 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 pay­
ment to the United States of one dollar and twenty-five
cents per acre for land embraced in such homestead.
Section 22 is quoted under the head of Townsites.
I’lifllie Hift-liway«.—

Sec. 23. That there shall be reserved public highways
four rods wide between each section of land in said Ter­
ritory, the section lines being the center of said highways;
but no deduction shall be made, where cash payments are

96

provided for, in the amount to be paid for eadh quarter­
section of land by reason of such reservation. But if the
said highway shall be vacated by any competent author­
ity, 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.—

Sec. 24. That it shall be unlawful for any person, for
himself or any company, association or corporation, to di­
rectly or indirectly procure any person tO' settle upon any
lands opened to settlement in the Territory of Oklahoma,
with intent thereafter of acquiring title thereto; and any
title thus acquired shall be void; and the parties to such
fraudulent settlement shall severally be guilty of a misde­
meanor, and shall be punished upon indictment, by im­
prisonment not exceeding twelve months, or 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 else­
where in this book.

POTTAWATOMIE AND CHEYENNE
AND ARAPAHOE LANDS.
(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 (relat­
ing to school lands) are put in force as to Cherokee Outlet.
The sections are as follows:
Sec. 16. That whenever any of the lands acquired by
either of the three foregoing agreements respecting lands
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 home­
stead and townsite laws (except Section twenty-three hun­
dred 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 to 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
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 Sections twenty-three hundred and
four (2304) and twenty-three 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 de­
clared to be agricultural lands and proof of their non­
mineral character shall not be required as a condition
precedent to final entry.

97

Section 17 of the above act, referring to county lines,
county seats, townsites and jurisdiction of probate judges,
is quoted elsewhere in this volume under the head of
Townsites.
Sec. 18. That the school lands reserved in the Territory
of Oklahoma by this and former acts of Congress may be
leased for a period of not exceeding three years for the
benefit of the school fund of said Territory by the gov­
ernor thereof, under regulations to be prescribed by the
Secretary of the Interior.

CHEROKEE OUTLET.
The act providing for the opening of the Cherokee Out­
let 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 Na­
tion as herein provided, by proclamation, to open to set­
tlement any or all of the lands not allotted or reserved,
in the manner provided in Section thirteen of the act of
Congress approved March second, eighteen hundred and
eighty-nine, entitled “An act making appropriations for
the current and contingent expenses of the Indian Depart­
ment and for fulfilling 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 subject to the provisions of the act of Congress
approved May second, eighteen hundred and ninety, enti­
tled “An act to provide a temporary government for the
Territory of Oklahoma to enlarge the jurisdiction of the
United States Court in the Indian Territory, and for
other purposes’’ (see page 122); also, subject to the sec­
ond 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 ful­
filling treaty stipulations with various Indian tribes, for
the year ending June thirtieth, eighteen hundred and nine­
ty-two, and for other purposes” (see page 127); except
as to so much of said acts and sections as may conflict
with the provisions of this act. Each settler on the lands
so to be opened to settlement 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
cents per acre for any land east of ninety-seven and onehalf 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
degree west longitude, and the sum of one dollar per acre
for any land west of ninety-eight and one-half degrees
v est longitude, and shall also pay interest upon the amount
so 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
prescribed by the proclamation of the President opening

98

the same to settlement; and any person otherwise occupy­
ing 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, pre­
scribe rules and regulations, not inconsistent with this act,
for the occupation and settlement of said lands, to be incor­
porated 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 allotments provided for in the fifth section of said
agreement shall be made without delay by the persons
entitled 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 allotments 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
payments, 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 Inte­
rior shall direct.
The President of the United States may establish, in his
discretion, 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 Okla­
homa; and to nominate, and by and with the consent of the
Senate 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
appraisers to be appointed as aforesaid, at a rate not exi>ceeding ten dollars a day for the time actually employed
by each appraiser, and their reasonable expenses, and to
enable the Commissioner of Indian Affairs, under the
direction 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’ prop­
erly render a complete account to the Cherokee Nation of
moneys due said nation, as required in the fourth subdi­
vision of article two of said agreement.
TONKAWA

AND

PAWNEE

LANDS.

Sec. 13. That the lands acquired by the agreements
specified in the two preceding sections are hereby declared

99

to be a part of the public domain. Section sixteen and
thirty-six in each township, whether surveyed or unsur­
veyed, are hereby reserved from settlement for the use
and benefit of public schools, as provided« in Section ten
relating to lands acquired from the Cherokee Nation of
Indians. And the land so acquired by the agreements
specified 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 sub­
ject 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 re­
ceiving 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 cents
per acre; and shall also pay interest upon the amount so to
be paid for said land from the date of entry to the date of
final payment at the rate of four per centum per annum.
Sec. 14. Before any of the aforesaid lands are open to
settlement it shall be the duty of the Secretary of the
Interior to divide the same into counties, which shall con­
tain as near as possible not less than five hundred square
miles in each county. In establishing said county lines the
Secretary is hereby authorized to extend the lines of the
counties already located so as to make the area of said
counties equal, as near as may be, to the area of the coun­
ties provided for in this act: Provided, That range one
west and ranges one, two, three, and four east, in town­
ship twenty, shall be attached 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 coun­
ty, and the name which receives 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
land in each county, to be located for county seat pur­
poses, to be entered under Sections twenty-three hundred
and eighty-seven and twenty-three hundred and eightyeight of the Revised Statues, and all reservations for county
seats shall be specified in any order or proclamation which
the President shall make for the opening of the lands to
settlement.

KICKAPOO LANDS.
An Act to ratify and confirm an agreement with the
Kickapoo Indians in Oklahoma Territory, and to make
appropriations for carrying the same into effect.
Be it Enacted by the Senate and House of Representatives
of the United States of America in Congress assembled:
That said agreement be, * and the same hereby is, ac­
cepted, ratified, and oiinfirmed.
“That for the purpose of carrying into effect the provi­
sions of the foregoing agreement there is hereby appro­
priated out of any moneys in the Treasury of the United
States not otherise 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 hun100

dred and seventy-two dollars for services rendered said
Kickapoo Indians and in discharge of a written contract
made with said Indians and recommended by the Secre­
tary of the Interior, the remainder to be expended for the
use of said Indians as stipulated in said contract: Pro­
vided, That should said Indians elect to leave any portion
of said remaining balance in the treasury, the amount so
left shall bear interest 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 adjudication and payment of
claims arising from Indian depredations.”
Sec. 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 necessary to appoint one for the purpose, and the nec­
essary surveys or resurveys, there be, and hereby is, ap­
propriated, out of any moneys in the treasury not other­
wise appropriated, the sum of five thousand dollars, or so
much thereof as may be necessary.
Sec. 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 provided by law,
and within five years from the date of the first original
entry, the sum of one dollar and fifty cents an acre, onehalf of which shall be paid within two years; but the rights
of honorably discharged Union soldiers and sailors, 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, ex­
cept as to the sum to be paid as aforesaid. Until said
lands are open to settlement by proclamation of the Presi­
dent of the United States, no person shall be permitted to
enter upon or occupy any of said lands; and «any person
violating this provision shall never be permitted to make
entry of any of said lands or acquire any title thereto:
Provided, That any person 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 laQnds.
Approved March 3, 1893.

101

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 other purposes.
Be it enacted by the Senate and House of Representatives
of 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, Okla­
homa, shall be entitled to continue his occupation of such
land with improvements thereon, not exceeding one hun­
dred and sixty acres, and shall be allowed six months pref­
erence 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
ninety-six. Every such 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 hundred and ninety-six, not
exceeding one hundred and sixty acres, which, prior to
said date, shall have been cultivated, purchased or im­
proved by him. When any person entitled to a homestead
or additional land, as above provided, is the head of a fam­
ily, and though still living shall not take such homestead
or additional land, within six months from the passage
of this act, any member of such family over the age of
twenty-one years, other than a husband or wife, shall suc­
ceed to the right 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 im­
proved prior to March sixteenth, eighteen hund’^ed 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.
In case of the death of any settler who actually estab­
lished 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 ac­
crued at the time the residence was established, and S^ctions 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 re-

102

serve, shall be subject to entry to actual settlers only,
under the provision of the homestead law.
Sec. 3. That the inhabitants of any town located in said
county shall be entitled to enter the sam? as a townsite
under the provisions of Sections twenty-three hundred'and
eighty-seven, twenty-three hundred and ninety-eight and
twenty-three hundred and eighty-nine of the'TRevIsed Stat­
utes 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 hun­
dred and ninety-six, shall have the preference right to en­
ter said lots under the provisions of this act and of the
general townsite laws.
Sec. 4. Sections numbered sixteen and thirty-six are
reserved for school purposes as provided in laws relating
to Oklahoma, and sections thirteen and thirty-three in
each township are reserved for such purposes as the Legis­
lature 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 Con­
gress relating to Oklahoma, shall be found to have been
occupied by actual settlers or for townsite purposes or
homesteads prior to March sixteenth, eighteen hundred
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, eight­
een hundred and ninety-six, are occupied for church, cem­
etery, school or other charitable or voluntary purposes, not
for profit, not exceeding 2 acres in each case, shall be pat­
ented 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 incons st­
ent with the provisions of this act, applying to said Ter­
ritory in said county, are hereby repealed; and all laws
authorizing commutations of homesteads in Oklahoma
shall apply to Greer County,
Sec. 8. That this act shall take effect from its passage
and approval.
Approved January 18, 1897. (29 Stat 490.)
Preference Riglit.—

The act approved March 1, 1899, provides:
Be it enacted by the Senate and House of Representa­
tives of the United States of America in Congress assem­
bled: 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 hod
purchased lands in Greer County from the State of Texas
prior to March sixteenth, eighteen hundred and ninety-six,
to perfect titles to said lands according to the provisions
of Section one hereinbefore mentioned under such reerulations as the Commissioner of the General Land Office
may prescribe, and according to the legal subdivisions of
the public surveys, if no adverse rights have attached:

103

Provided, That ho settler shall b® permitted to acquire
to exceed three hundred and twenty acres under this
provision.

THE FREE HOME ACT.
May 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 Representa­
tives of the United States of America in Congress assembled:
That all settlers under the homestead laws of the United
States upon the agricultural public lands, which have al­
ready been opened to settlement, acquired prior to the
passage of this act, by treaty or agreement from the vari­
ous 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 payment 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 the land
covered by his entry: Provided, That the right to cummute 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
effect: Provided, however. That all sums of money so
released, which if not released would belong to any Indian
tribe, shall be paid to such Indian tribe by the ITnited
States, and that in the event that the proceeds of the
annual sales of the public lands shall not be sufficient to
meet the payments heretofore provided for agricultural
colleges and experimental stations by an Act of Congress,
approved August thirtieth, eighteen hundred and ninety,
for the more complete endowment and support
the col­
leges for the benefit of agricultural and mechanic arts,
established under the provisions of an Act of Congress
approved July second, eighteen hundred and sixty-two,
such deficiency shall be paid by the United States: And
provided, further. That no lands shall be herein included
on which the United States Government had made valu­
able improvements, or lands that have been sold at pub­
lic auction by said government.
Sec. 2. That all acts or parts of acts inconsistent with
the provisions of this act are hereby repealed.

SCHOOL LANDS.
Under all the land laws applicable to Oklahoma^, sections
16 and 36 have been reserved for the common public schools.
Under the law, and the proclamation of the President, sec­
tion 13 was reserved for university, agricultural colleges,
normal schools, and section 33 for public buildings, and by
act of June 6, 1900, sections 13 and 33, in Kiowa, Comanche,
and Apache lands, were reserved for university, agricult­
ural colleges, normal schools and public buildings. These
lands may be leased.
School lands cannot be purchased in Oklahoma. The
act of March 3, 1891, Sec. 18 (see Index), provided:
“That the school lands reserved in the Territory of
Oklahoma by this and former acts of Congress may be
104

leased 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.”
BOAItn TO LEASE.

provides:
The Act of Congress approved
“That the reservation for university, agricultural col­
lege, and normal school purpose of section 13, in each
township of the lands known as the Cherokee Outlet, the
Tonkawa Indian reservation, and the Pawnee Indian res­
ervation, in the Territory of Oklahoma, not otherwise re­
served or disposed of, and the reservation for the public
buildings of section 33 in each township in said land, not
otherwise disposed of, made by the President of the United
States in his proclamation of August 19, 1893, be, and the
same are, hereby ratified, and all said lands and all the
school lands in the said Territory may be leased under
such laws and regulations as may be hereafter prescribed
by the Legislature of said Territory; but until such leg­
islative 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 regu­
lations heretofore prescribed by the Secretary of the Inte­
rior, for the respective purposes for which the said reser­
vations were made, except that it shall not be necessary to
submit leases to the Secretary of the Interior for his
approval; and all the necessary expenses and costs in­
curred in the leasing, management, and protection of said
lands and leases may be paid out of the proceeds derived
from such leases.”

TOWNSITES.
Kiowa »11(1 Coiiiaiiclie Act.—

i
The Act of Congress, approved June 6, 1900, opening
J these lands, provides that they shall “be disposed of under
I the general provisions of the homestead and townsite laws
i of the United States.” Under the above title we wish to
consider what are the general provisions of the townsite
{ laws of the United States, as restricted Or modified by
i special laws applicable to Oklahoma.
Location of Comity Seat Towiisites.-

\ Section 17 of the Act of Congress, approved March 3,
|l891, 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
ij Interior to divide the same into counties, which shall conii'stain as near as possible not less than nine hundred square
miles in each county. 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
said counties equal, as near as may be, to the area^ of the
counties provided for in this act. At the first election for
county officers the people of each county may vo^e for a
name for each county, and the name which receives the
greatest number of votes shall be the name of each county:
Provided, further, That as soon as the county lines are des­
ignated by the secretary, he shall reserve not to exceed onehalf section of land in each county, to be located near the
105

center of said county, for county-seat purposes, to be en­
tered under Sections twenty-three hundred and eightyseven and twenty-three hundred and eighty-eight of the
Revised Statutes: Provided, That in addition to the juris­
diction granted to the probate courts and the judges
thereof in Oklahoma Territory by legislative enactments,
which enactments are hereby ratified, the probate judges
of said Territory are hereby granted such jurisdiction in
townsite matters and under such regulations as are provid­
ed by the laws of the State of Kansas. (Approved March 3,
1891.)
For jurisdiction of probate judge in townsite matters
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, Revised Statutes of the United States, which are
as follows:
Sec. 2387. Whenever any portion of the public lands
has been or may be settled upon and occupied as a townsite, not subject to entry under the agricultural preëmption laws, it is lawful, in case such town be incorporated,
for the corporate authorities thereof, and, if not incorpo­
rated, for the judge of the county court for the county in
which such town is situated, to enter at the proper land
office, and at the minimum price, the land so settled and
occupied in trust for the several use and benefit of the
occupants thereof, according to their respective interests;
the execution of which trust, as to the disposal of the
lots in such town, and the proceeds of the sale thereof,
to be conducted under such regulations as may be pre­
scribed by the legislative authority of the State or Terri­
tory in Jwhich the same may be situated.
Sec. 2388. The entry of the land provided for in the
preceding section shall be made, or a declaratory state­
ment of the purpose of the inhabitants to enter it as a townsite shall be filed with the register of the proper land office
prior to the commencement of the public sale of the body of
land in which it is included, and the entry or declaratory
statement shall include only such land as is actually occu­
pied 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 established, such declaratory statements may
be filed with the surveyor-general of the surveying dis­
trict in which the lands are situated, who shall transmit
the same to the general land office.
Commuting Homesteads to Townsites.—

Section 22 of the Organic Act is as follows:
Sec. 22. That the provisions of title thirty-two, chapter
eight, of the Revised Statutes of the United States, relat­
ing to “reservation and sale of townsiteS; on public land,”
shall apply to the lands open, or to be opened to settlement
in the Territory of Oklahoma, except those opened to set­
tlement by proclamation of the President, on the twentysecond day of April, eighteen hundred and eighty-nine:
Provided, That hereafter all surveys for townsites in said
Territory shall contain reservations for parks (of sub­
stantially equal area if more than one park) and for
schools and other public purposes, embracing in the aggre106

gate not less than ten nor more than twenty acres; and
patents for such reservations, maintained for such pur­
poses, shall be issued to the towns respectively when or­
ganized as municipalities:
Provided, further. That in
case any lands in said Territory of Oklahoma, which may
be occupied and filed upon as a homestead, under the pro­
visions of law applicable to said Territory, by a
person who is entitled to perfect his title thereto un­
der such laws, are required for townsite purposes,
it shall be lawful for such person to apply to the Secre­
tary of the Interior to purchase the lands embraced
in said homestead or any part thereof for townsite
purposes.
He shall file with the application a plat of
such proposed townsite, and if such plat shall be approved
by the Secretary of the Inte^-ior, 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
tiie lands embraced in such townsite, except the lands to
be donated and maintained for public purposes as provided
in this section. And the sums so received by the Secre­
tary of the Interior shall be paid over to the proper au­
thorities of the municipalities when organized, to' be used
bj’ them for school purposes only.
It will be observed that under Section 17 of the Act of
March 3, 1891, above quoted, that townsites for county seat
purposes are to be entered under Sections 2387 and 2388
of the Revised Statutes of the United States. Section 22
of the Organic Act, above quoted, provides that provis­
ions of title 32, chapter 8, of the Revised Statutes of the
United States, relating to the reservation and sale of
townsites on public lands, shall apply to lands opened
or to be opened to settlement in the Territory of Okla­
homa, 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 Stat­
utes of the United States, and hence these two sections
are in force and apply to townsites upon all 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 townsite act, which applied originally to the land
opened for settlement April 22, 1889. By joint resolution of
Congress. September 1, 1893, this act was made applicable
to the townsites in the Cherokee Outlet.
This special act, however, does not apply to the Kiowa
and Comanche lands. Unless there is further legislation
by Congress, townsites on these lands will be entered un­
der Sections 2387 and 2388 of the Revised Statutes of the
United States, above quoted. Section 17 of the Act of
March 3, 1891, above set forth, and Section 22 of the Or­
ganic Act, as above quoted.
Juri.sdictioii of Probate Jiidg;es.—

As will be seen by Section 17 of the Act of March 3,
1891, referred to above the probate judges of said Territory
are hereby granted such jurisdiotion in townsite matters,
and under such legislation, as are provided under the laws
of Kansas. For further authority, therefore, we look to
the Kansas Townsite Act.

107

Notice.—

KANSAS TOWNSITE ACT.
(General Statutes of Kansas, 1889.
inclusive.) •

Sec. 5. 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 completed,
and giving notice to all persons concerned or interested
in such townsite that, on a designated day, the commis­
sioners will proceed to set off to the persons entitled to
the same, according to their respective interests, the 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 commission­
ers to make such division.

Sections 7038 to 7949

How and by Whom Entered.—

Section 1. 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 time incorporated, it shall be the
duty of the corporate authorities of such town, or, if not in­
corporated, 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 townsite furnished, to enter such townsite under
Act of Congress in such case provided.
Guffin vs. Linney, 26 Kan. 717.
Allen vs. Houston, 21 Kan. 194.
Setter, vs. Alvey, 15 Kan. 157.
McTaggart vs. Harrison, 12 Kan. 62.
Shevy vs. Sampson, 11 Kan. 611.
Winfield Town Co. vs. Maris, 11 Kan. 128.
Independence Town Co. vs. De Long, 11 Kan. 152.

The Apportionment.—

Corporate Autliorities to Make Deeds, W lieii f—

Sec. 6. After such publication shall have been duly
made, the commissioners shall proceed, on the day desig­
nated in such publication, to set apart to the persons en­
titled 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 improvements
belonging to such persons or company. Yaxall v. Com., 20
Kans. 581.

Sec. 2. When a townsite is entered under the above cited
Act of Congress, by the corporate authorities of any incorpo­
rated 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 officer,
under the corporate seal of said city, attested by said city
clerk or register, 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 officer, attested by the
city clerk or register.
Matthew vs. Buckingham, 22 Kan. 166.
Sherry vs. Sampson, 11 Kan. 611.

Sec. 7. After the setting 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, sufficient to raise a fund to reimburse to the par­
ties 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 perfecting the same, the
fees due the commissioners and the surveyor for their
respective services, and other necessary expenses con­
nected with the proceedings. 33 Kan. 381; Emmert v. D.
Long, 12 Kan. 67.

Probate Jiidg,e.—

Sec. 3. In all cases where townsites have been or shall
hereafter be, entered in this State by the probate 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 occupants
and inhabitants of such townsite according to their re­
spective interests, in the manner hereinafter pre»scribed.
Jackson vs. Winfield T. Co., 23 Kan. 542; Fessler vs. Hass,
19 Kan. 216.
Commissioners.—

.

Sec. 4. 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 commissioners,
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.
S81; Rathbone vs. Sterling, 25 Kan. 444.
108

,

Tax Levied, for Wliat Purpose?-

Commissioners’ Return.—

Sec. 8. 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 proceedings.
Taxes.—

Sec. 9. The said probate judge shall then proceed to
collect the taxes, levied as aforesaid, and he shall make
deeds to the lots so set apart to the various parties enti­
tled to the same; but no deed shall be made to any person
until such person shall have first fully paid all the tax
or assessment so levied against him; and in case any per­
son 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 of execution against the lands and tenements of a
debtor in the district court.
Sec. 10. The probate judge shall reimburse the party cr
parties who may have entered and secured title to such
site, together with all necessary expenses incurred, out of
the fund thus provided, taking their receipts therefor;
109

which receipt shall he filed with the papers returned hy the
commissioners, and kept hy him among the records of his
court. 12 Kan. 67.
Acknowledgment of Deeds.—

Sec. 11. Deeds made hy the prohate judge in pursuance
of this act shall he acknowledged hy him, and may he
recorded with like effect as other deeds.
Sec. 12. Alt persons who select and lay out a townsite,
and their assigns, shall he deemed occupants of said
townsite and the lots embraced therein, within the mean­
ing of the above recited acts of Congress, and deeds shall
he made accordingly. (See cases above recited.)

1
i

Titles to Lots Subject to Mineral Claims.—

Section 2386, Revised Statutes, provides: “Where min­
eral veins are possessed, which possession is recognized hy
local authority, and to the extent so possessed and recog­
nized, the title of town lots to he acquired shall he sub­
ject to such recognized possession and the necessary use
thereof; hut nothing contained in this section shall he so
construed as to recognize any color of title in possessors
for mining purposes as against the United States.”
Number of luliabitants.—

“Sec. 2389. If upon surveyed lands, the entry shall in
its exterior limit he made in conformity to the legal sub­
divisions of the public lands authorized hy 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
thousand, shall embrace not exceeding twelve hundred
and eighty acres; hut for each additional one thousand
inhabitants, not exceeding five thousand in all, a further
grant of three hundred and twenty acres shall he allowed.”
No Title to Mines.—

5 ïj
1?

“Sec. 2392. No title shall he acquired, under the forego­
ing provisions of this chapter, to any mine of gold, silver,
cinnabar or copper; or to any valid mining claim or pos­
session held under existing laws.”
Townsites in Greer County.-

Section 3 of the Act of January 18, 1897, relative to townsites in Greer County, is as follows:
“Sec. 3. That the inhabitants of any town located in
said county shall he entitled to enter the same as a (4)
townsite under the provisions of (5) Sections twenty-three
hundred and eighty-seven, twenty-three hundred and eigh­
ty-eight, and twenty-three hundred and elghty-nine of the
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.
Cities May 1‘urcliase for Cemeteries and Parks.—

The Act of Congress approved September 30, 1890, pro­
vides as follows:
“Be it enacted hy the Senate and House of Representa­
tives in Congress assembled: That incorporated cities ard
towns shall have the right, under rules and regulations
110

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 proposed to be taken under this
act shall be considered as mirrerai lands, and patent to such
land shall not authorize such city or town to extract min­
eral therefrom, but all such mineral shall be reserved to
the United States, and such reservation shall be entered
into such patent.”
Townsites in
Outlet.-

Old

Oklahoma and the

Cherokee

The Act of May 18, 1890, applicable to lands opened to
settlement April 22, 1889 (Old Oklahoma), and’the Chero­
kee Outlet opened to settlement September 16, 1893, is as
follows :
Be it enacted by the Senate and House of Representa­
tives of the United States of America in Congress assem­
bled: That so much of the public lands situate in the Ter­
ritory of Oklahoma, now open to settlement, as may be
necessary to embrace all the legal subdivisions covered
by actual occupancy for the purpose 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 thereof, by three trustees, to be
appointed by the Secretary of the Interior for that purpose,
such entry to be made under 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 pro­
vide regulations for the proper execution of the trust by
such trustees, including the survey of the land 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, conveyance
of lots, and other necessary expenses, including compen­
sation 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 executed
in the manner herein provided by a single board of trus­
tees, but not more than seven boards of trustees in all
shall be appointed for said Territory, and no more than
two members of any said boards shall be appointed from
one political party.
Sec. 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 townsite 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 the United States òr
the proclamation of the President thereunder: Provided
111

T
further, That the certificates hereinbefore mentioned shall
i
not be taken as evidence in favor of any person claiming
lots who entered upon said lots in violation of law or the
proclamation of the President thereunder.
Sec. 3. That lots of land occupied by any religious or­
ganization, incorporated or otherwise, conforming to the

approved survey within the limits of such townsite, shall
be conveyed to or in trust for the same.
Sec. 4. That all lots not disposed of as hereinbefore pro­
vided for shall be sold under the direction of the Secretary
of the Interior for the benefit of the municipal government
of any such town, or the same 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 conveyance to carry out
the provisions of this section.
Sec. 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, eight­
een hundred and sixty-eight, shall, so far as applicable,
govern the trustees in the nerformance of their duties
hereunder.
Sec. 6. That all entries of townsites now pending, on
application hereafter made under this act, shall have pref­
erence 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 of­
fice will permit, and so if an appeal should be taken to the
Secretary of the Interior. And all applications heretofore
filed in the proper land office shall have the same force
and effect as if made under the provisions of this act, and
upon the application of the trustees herein provided for,
subh 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.
Sec. 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, to be filed in the General Land
Office and become a part of the records of the same, and
all conveyances executed by them shall be acknowledged
before an officer duly authorized for that purpose.
They shall be allowed such compensation as the Secre­
tary of the Interior may prescribe, not exceeding ten dol­
lars per day while actually employed; and such traveling
and other necessary expenses as the secretary may author­
ize, and the Secretary of the Interior shall also provide
them with necessary clerical force by detail or otherwise.
Sec. 8. That the sum of ten thousand dollars or so much
thereof as may be necessary is hereby appropriated tc
carry into effect the provisions of this act, except that no
portion of said sum shall be used in making payment for
112

land entered hereunder, and the disbursements therefrom
shall be refunded to the treasury from the sums which
may be realized from the assessments made to defray the
expense of carrying out the provisions of this act.
By joint resolution of Congress, September 1, 1893, the
above act was extended over the Cherokee Outlet.
Approved May 14, 1890.

SETTLEMENT UPON TOWN LOTS.
In the first part of this work what constitutes settle­
ment upon a homestead claim has been discussed at
length. In so far as the initiatory acts are concerned, the
same principles largely apply to settlement upon town lots.
The law does not specify the amount of improvements re­
quired. They should be such as are regarded as valuable
improvements and ordinarily should correspond with the
value of the lot. There is one important distinction, how­
ever, between what is necessary to acquire title to a lot
on a government 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 valuable 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 home­
stead. It is sufficient that he makes settlement and im­
provements thereon, though the improvements be occupied
by another. Such tenant occupies for him, the owner.”
See Winfield Town Co. vs. Enoch Maris, et at, 11
Kan. 128.
Time to AcQiiire Title.—

It will require about three months after the settle­
ment on the townsite before deeds can be secured. Of
course, it may take much longer than this.
BECTSIONS OF DEPARTMENT.

Amount of land to be reserved, 23 L. D.-74. Occupancy
of a tenant, 23 L. D. 196. Occupancy must be maintained
to date of entry, 23 L. D. 196. Right of an assignee, 23 L.
D. 384. Occupancy prevented by violence, 22 L. D. 31. Frac­
tional part of lot, 22 L. D. 102. Possession by tenant, 22 L.
D. 121, 177. Rights to streets and alleys occupied before
survey, 22 L. D. 505. Joint deed to lot, 22 L. D. 505. Unconspicuous stake does not constitute settlement, 22 L. D.
505. Possessory right may be transferred, 22 L. D. 619.
Reservation of land for park purposes, 22 L. D. 190, 367.
Patent to trustees not necessarily final disposition of gov­
ernment title, 22 L. U. 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 disqualifies, 21 L. D. 84. Any citi­
zen of the United States qualified to take town lot, 21 I..
D. 98. Right of way of railroads, 21 Ta D. 482. Occupancy
by tenant, 21 L. D. 98. Residence not necessary, 21 L. l5.
522. T^nlawful entry into the Territory, 21 L. D. 522. Aban­
donment of townsite subject to homestead entry, 21 L. D.
104. In commuting homestead to townsite purchaser must
113

pay for streets and alleys, 21 B. D. 462. Claim of townsite
cannot defeat homestead entry prior thereto, 21 B. D. 367.
Possession by force or fraud. 21 B. D. 542. No right ac­
quired by wrongful possession, 20 B. D. 265. Right of land­
lord and tenant, 20 B. D. 264. What is voluntary abandon­
ment of lot? 20 B. D. 425. Threats of force and armed vio­
lence, 20 B. D. 465. May be taken for business or residence
or both, 20 B. D 495. Occupancy subsequent to the day
of entry, 20 B. D. 202. In towns of less than one hundred
inhabitants, 18 B. D. 223.

MINING LAWS.
Kiowa and Coinanclie Act.—

The Act of Congress approved June 6, 1900, opening to
settlement the Kiowa, Comanche, and Apache lands, con­
tains the following, to-wit:
“That should any of said lands allotted to said Indians,
or opened to settlement under this act, contain valuable
mineral deposits, such mineral deposits shall be open to
location and entry, under the existing mining laws of the
United States, upon the passage of this act, and the min­
eral laws of the United States are hereby extended over
said lands.’’
GENERAL STATUTES.

The following are the important statutory provisions
comprising the mining laws of the United States;
Aliiieral Lands Reserved.—

Sec. 2318. In all cases lands valuable for minerals shall
be reserved from sale, except as otherwise expressly di­
rected by law.
Open to Pnrcliase.-

Sec. 2319. All valuable mineral deposits in lands belong­
ing to the United States, both surveyed and unsurveyed,
are hereby declared to be free and open to exploration and
purchase, and the lands in which they aré found to occu­
pation and purchase, by citizens of the United States and
those who have declared their intention to become such
under regulations prescribed by law, and according to the
local customs or rules of miners in the several mining dis­
tricts, so far as the same are applicable and not incon­
sistent with the laws of the United States.
Ueiigtli of Milling,- i’laiiiis.—

Sec. 2320. Mining claims upon veins or lodes of quartz
or other rock in place bearing gold, silver, cinnabar, lead,
tin, copper or other valuable deposits, 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 claim located after the tenth
day of May, eighteen hundred and seventy-two, whether
located by one or more 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 claim shall be
made until the discovery of the vein or lode within th ■
limits of the claim located. 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
*
114

any mining regulation 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 tenth day of May,
eighteen hundred and seventy-two, render such limitation
necessary. The end lines of each claim shall be parallel
to each other.
Rights of Possession.—

Sec. 2322. The locators of all mining locations hereto­
fore made or which shall hereafter be made, on any min­
eral vein, lode or ledge, situated on the public domain,
their heirs and assigns, where no adverse 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
conflict with the laws of the United States governing their
possessory title, shall have the exclusive right of posses­
sion and enjoyment of all the surface included within
the lines of their location, and of all veins, lodes, and
ledges throughout their entire depth, the top or apex of
which lies inside of such surface lines extended down­
ward vertically, although such veins, lodes, or ledges may
so far depart from a perpendicular in their course down­
ward as to extend outside 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 planes drawn
downward as above described through the end lines of
their locations, so continued in their own direction that
such planes will intersect such exterior parts of such veins
or ledges. And nothing in this section shall authorize the
locator or possessor of a vein or lode which extends in its
downward course beyond the vertical lines of his claim to
enter upon the surface of a claim owned or possessed by
another.
OAviiers of To on els, Riglits of.—

Sec. 2323. Where a tunnel is run for the development
of a vein or lode, or for the discovery of mines, the owners
of such tunnel shall have the right of possession of all
veins or lodes within three thousand feet from the face of
such tunnel on the line thereof, not previously known to
exist, discovered in such tunnel, to the same extent as if
discovered from the surface; and locations on the line of
such tunnel of veins or lodes not appearing on the surface,
made by other parties after the commencement of the
tunnel, and while the same is being prosecuted with rea­
sonable diligence, shall be invalid, but failure to prosecute
the work on the tunnel for six months shall be considered
as an abandonment of the right to all undiscovered veins
on the line, of such tunnel.
Regulations Marte by Miners.—

Sec. 2324. 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
the district is situated, governing the location, manner of
recording, amount of work necessary to hold possession
of a mining claim, subject to the following requirements;
The location must be distinctly marked on the ground
so that its boundaries can be easily traced. All records of
mining claims hereafter made shall contain the name or
names of the locators, the date of the location and such a
115

description of the claim or claims located by reference to
some natural object or permanent monument as will iden­
tify the claim. On each claim located after the tenth day
of May, eighteen hundred and seventy-two, and until a
patent has been issued therefor, not less than one hundred
dollars’ worth of labor shall be performed or improve­
ments made during each year. On all claims located prior
to the tenth day of May, eighteen hundred and seventytwo, ten dollars’ worth of labor shall be performed or
improvements made by the tenth day of June, eighteen
hundred and seventy-four, and each year thereafter, for
each one hundred feet in length along the vein until a
patent has been issued therefor: but where such claims are
held in common, such expenditure may be made upon any
one claim: and upon a failure to comply with these con­
ditions, the claim or mine upon which such failure oc­
curred shall be open to relocation in the same manner as
if no location of the same had ever been made, provided
that the original locators, their heirs, assigns or legal rep­
resentatives, have not resumed work upon the claim after
failure and before such location. Upon the failure of any
one of several co-owners to contribute his portion of the
expenditures required hereby, the co-owners who have
performed the labor or made the improvements may, at
the expiration 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 at the expiration of ninety
days after such notice in writing or by publication such de­
linquent should fail or refuse to contribute his proportion
of the expenditure required by this section, his interest in
the claim shall become the property of his co-owners who
have made the required expenditures.
Patents.—

Sec. 2325. A patent for any land claimed and located for
valuable deposits may be obtained in the following manner:
Any person, association or corporation authorized to locate
a claim under this chapter, having claimed and located a
piece of land for such purposes, who has, or have, com­
plied with the terms of this chapter, may file in the proper
land office an application for a patent, under oath, show­
ing such compliance, together with a plat and field-notes
of the claim or claims in common, made by or under the
direction of the United States Surveyor-General, showing
accurately the boundaries fo the claim or claims, which
shall be distinctly marked by monuments on the ground,
and shall post a copy of such plat, together with a notice
of such application for a patent, in a conspicuous place on
the land embraced in such plat previous to the filing of
the application for a patent, and shall 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 be entitled to a patent for the land, in
the manner following: The register of the land office,
upon the filing of such application, plat, field-notes, notic'^s,
and affidavits, shall publish a notice that such application
has been made, for the period of sixty days, in a news­
paper to be by him designated as published nearest to
such claim: and he shall also post such notice in his office
for the same period. The claimant at the time of filing
this application, or at any time thereafter within the sixty
116

1

days of publication, shall file with the register a certificate
of the United States Surveyor-General that five hundred
dollars’ worth of labor has been expended or improvements
made upon the claim by himself or grantors; that the plat
is correct, with such further description by such reference
to natural objects or permanent monuments as shall iden­
tify the claim and furnish an accurate description, to be
incorporated in the patent. At the expiration of the
sixty days of publication the claimant shall file his affidavit
showing that the plat and notice have been posted in a
conspicuous place on the claim during such period of pub­
lication. If no adverse claim shall have been filed with
the register and the receiver of the proper land office at
the expiration of the sixty days of publication, it shall be
assumed that the applicant is entitled to a patent, upon
the payment to the proper officer of five dollars per acre,
and that no adverse claim exists; and thereafter no objec­
tion from third parties to the issuance of a patent shall be
heard, except it be shown that the applicant has failed to
comply with the terms of this chapter.
Adverse Claim, Proceedings on.—

Sec. 2326. Where an adverse claim is filed during the
period of publication, it shall be upon oath of the person or
persons making the same, and shall show the nature,
boundaries, and extent of such adverse claim, and all pro­
ceedings, except the publication of notice and making and
filing of the affidavit thereof, shall be stayed until the con­
troversy shall have been settled or decided by a court of
competent jurisdiction, or the adverse claim waived. It
shall be the duty of the adverse claimant, within thirty
days after filing his claim, to commence proceedings in
a court of competent jurisdiction, to determine the ques­
tion of the right of possession, and prosecute the same
with reasonable diligence to final judgment; and a failure
so to do shall be a waiver of his adverse claim. After
such judgment shall have been rendered, the party enti­
tled to the possession of the claim, or any portion thereof,
may, without giving further notice, file a certified copy of
the judgment roll with the register of the land office,' to­
gether with the certificate of the surveyor-general that
the requisite amount of labor has beert expended or im­
provements made thereon, and the description required in
other cases, and shall pay to the receiver five dollars per
acre for his claim, together with the proper fees, where­
upon the whole proceedings and the judgment roll shall
be certified by the register to the commissioner of the
General Land Office, and a patent shall issue thereon for
the claim or such portion thereof as the applicant sha’l
appear, from the decision of the court, to rightly possess.
If it appears from the decision of the court that several
parties are entitled to separate and different portions of
the claim, each party may pay for his portion of the
claim with the proper fees, and file the certificate and de­
scription by the surveyor-general, whereupon the register
shall certify the proceedings and judgment roll to the com­
missioner of the General Land Office, as in the precedirg
case, and patents shall issue to the several parties accord­
ing to their respective rights. Nothing herein contained
shall be construed to prevent the alienation of a title con­
veyed by a patent for a mining claim to any person
whatever.
117

Description of Vein Claims.-

Sec. 2327. The description of vein or lode claims, upon
surveyed lands, shall designate the location of the claim
with reference to the lines of the public surveys, but need
not conform therewith; but where a patent shall be issued
for claims upon unsurveyed lands, the surveyor-general,
in extending the surveys, shall adjust the same to the
boundaries of such patented claim, according to the plat or
description thereof, but so as in no case to interfere with
or change the location of any such patented claim.
Conformity of Placer Claims to Surveys.—

Sec. 2329. Claims usually called “placers,” including all
forms of deposit, excepting veins of quartz, or other rock
in place, shall be subject to entry and patent, under like
circumstances and conditions, and upon similar proceed­
ings, as are provided for vein or lode claims; but
where the lands have been previously surveyed by the
United States, the entry in its exterior limits shall con­
form to the legal subdivisions of the public lands.
Subdivisions of Ten-Acre Tracts.—

Sec, 2330. Legal subdivisions of forty acres may be sub­
divided into ten-acre tracts: and two or more persons or
associations of persons, having contiguous claims of any
size, although such claims may be less than ten acres
each, may make joint entry thereof; but no location of a
placer claim, made after the ninth day of July, eighteen
hundred and seventy, shall exceed one hundred and sixty
acres for any one person or association of persons, which
location shall conform to the United States surveys; and
nothing in this section contained shall defeat or impair
any bona fide preemption or homestead claim upon agri­
cultural lands or authorize 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 required, and all placer mining claims located
after the tenth of May, eighteen hundred and seventy-two,
shall conform as near as practicable 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 sub­
divisions, survey and plat shall be made as on unsurveyed
lands; and where by the segregation of mineral lands in
any legal subdivision a quantity of agricultural land less
than forty acres remains, such fractional portion of agri­
cultural land may be entered by any party qualified by
law, for homestead or preemption purposes.
Proceedings for Patent for Placer Claim, Etc.—

Sec. 2333. Where the same person, association or cor­
poration, is in possession of a placer claim, and also a
vein or lode included within the boundaries thereof, appli­
cation shall be made for a patent for the placer claim,
with the statement that it includes such vein or lode, and
in such case a patent shall issue for the placer claim, sub­
ject to the provisions of this chapter, including such vein
or lode, upon the payment of five dollars per acre for
such vein or lode claim, and twenty-five feet of surface on
each side thereof. The remainder of the placer claim,
il8

or any placer claim not embracing any vein or lode
claim, shall be paid for at the rate of two dollars» and
fifty cents per acre, together with all costs of proceedings;
and where a vein or lode, such as is described in Section
twenty-three hundred and twenty, is known to exist within
the boundaries of a placer claim, an application for a pat­
ent for such placer claim which does not include an appli­
cation for the vein or lode claim shall be construed as a
conclusive declaration 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 Ailidavits.-

Sec. 2335. All affidavits required to be made under this
chapter may be verified before any officer authorised to
administer oaths within the land district where the claims
may be situated, and all testimony and proofs may be
taken before any such officers, and when duly certified by
the officer taking the same, shall have the same force and
effect as if taken before the register and receiver of the
land office. In cases of contest as to the mineral or agriciiltural character of land, the testimony and proofs may
be taken as herein provided 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 reg­
ister of the land office as published nearest to the location
of such land; and the register shall require proof that such
notice has been given.
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 be entitled to all ore or mineral contained
within the space of intersection: but the subsequent loca­
tion shall have the right of way through the space of inter­
section for the purposes of the convenient working 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.
V ested 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 own­
ers of such vested rights shall be maintained and protected
in the same; and the right of way for the construction of
ditches and canals for the purpose herein specified is ac­
knowledged and confirmed; but whenever any person, in
the construction of any ditch or canal, injures or damages
the possession of any settler on the public domain, the
party committing such injury or damage shall be liable to
the party injured for such injury or damage.
Grant of Lands to States or Corporations.—

Sec. 2346. No act passed at the first session of the
Thirty-eighth Congress, granting lands to States or cor­
porations to aid in the construction of roads or for other
purposes, or to extend the time of grants made prior to the
119

7

thirtieth day of January, eighteen hundred and sixty-five,
shall be so construed as to embrace mineral lands, which
in all cases are reserved exclusivly to the United States,
unless otherwise specially provided in the act or acts mak­
ing the grant.
An Act to amend Section two thousand three hundred
and twenty-four of the Revised Statutes, relating to the
development of the mining resources of the United
States.
Be it enacted by the Senate and House of Representa­
tives of the United States of America in Congress assem­
bled: That Section two thousand three hundred and twen­
ty-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 lodes,
owned by said person or company, the money so expended
in said tunnel shall be taken and considered as expended
on said lode or lodes, whether located prior to or since
the passage of said act; and such person or company shall
not be required to perform work on the surface of said
lode or lodes in order to hold the same as required by
said act.
Approved February 11, 1875.
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 Representa­
tives of the United States of America in Congress assem­
bled: That all citizens of the United States and other
persons, bona tide residents of the State of Colorado or
Nevada, or either of the Territories of New Mexico, Ari­
zona, Utah, Wyoming, Dakota, Idaho or Montana, and all
other mineral districts of the United States, shall be, and
are hereby, authorized and permitted to fell and remove,
for building, agricultural, mining or other domestic pur­
poses, 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 dis­
tricts of which such citizens or persons may be at the
time bona fide residents, subject to such rules and regu­
lations as the Secretary of the Interior may prescribe for
the protection of the timber and of the undergrowth grow­
ing 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 office in whose district any min­
eral 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 this act, within
their respective land districts; and if so, they shall imme­
diately notify the commissioner of the General Land Office
of that fact; and all necessary expenses incurred in mak­
ing such proper examinations shall be paid and allowed
such register and receiver in making up their next quar­
terly accounts.
Sec. 3. Any person or persons who shall violate the
provisions of this act, or any rules and regulations in pur­
suance thereof made by the Secretary of the Interior,
shall be deemed guilty of a misdemeanor, and, upon con120

viction, shall be fined in any sum not exceeding five hun­
dred 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
twenty-four and twenty-three hundred and twenty-five
of the Revised Statutes of the United States, concern­
ing mineral lands.
Be it enacted by the Senate and House of Representa­
tives of the United States of America in Congress assem­
bled: That Section twenty-three hundred and twenty-five
of the Revised 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 with­
in the land district wherein the vein, lode, ledge, or deposit
sought to be patented is located, the application for pat­
ent and the affidavits required 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 established by said affidavits:
And provided, That this section shall apply to all applica­
tions now pending for patents to mineral lands.”
Sec. 2. That Section twenty-three hundred and twentyfour of the Revised Statutes of the United States be
amended by adding the following words: “Provided, That
the period within which the work required to be done an­
nually on all unpatented 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 eight­
een hundred and seventy-two.”
Approved January 22, 1880.
An Act to amend Section twenty-three hundred and
twenty-six of the Revised Statutes, relating to suits at
law affecting the title to mining claims.
Be it enacted by the Senate and House of Representa­
tives of the United States of America in Congress assem­
bled: That if, in any action brought pursuant to Section
twenty-three hundred and twenty-six of the Revised Stat­
utes, title to the ground in controversy shall not be estab­
lished 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 pat­
ent for the ground in controversy until he shall have per­
fected his title.
Approved March 3, 1881.
An 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 Representa­
tives of the United States of America in Congress assem­
bled: That the adverse claim required by Section twentythree hundred and twenty-six of the Revised Statutes may
be verified by the oath of the duty 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 oath to the adverse claim
before the clerk of any court of record of the United States
or the State or Territory where the adverse claimant may
121

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 district wherein the claim is sit­
uated, may make any oath or affidavit required for proof
of citizenship 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 Representa­
tives of the United States of America in Congress assem­
bled:
Sec. 16. That townsite entries may be made by incorpo­
rated 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 lead,
or to any valid mining claim or possession held under
existing law. When mineral veins are possessed within
the limits of an incorporated town or city, and such pos­
session is recognized by local authority or by the lavs
of the United States, the title to town lots shall be sub­
ject 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 pos­
sessor of such mineral vein may enter and receive pat­
ent for such mineral vein, and the surface ground apper­
taining thereto: Provided, 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 inception of the
title 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 Representa­
tives of the United States of America in Congress assem­
bled: 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:
Provided, 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, relating to mining claims.
Be it enacted by the Senate and House of Representa­
tives of the United States of America in Congress assem­
bled: That the provisions of section numbered twentythree hundred and twenty-four of the Revised Statutes of
the United States, which require that on each claim lo­
cated after the tenth day of May, eighteen hundred and
seventy-two, and until patent has been issued therefor, not
less than one hundred dollars’ worth of labor shall bf^
performed or improvements made during each year, be
suspended for the year eighteen hundred and ninety-three,
so that no mining claim which has been regularly located
and recorded as required by the local laws and minmg
regulations shall be subject to forfeiture for non-perform­
ance of the annual assessment for the year eighteen
hundred and ninety-three: Provided, That the claimant
or claimants of any mining location, in order to secure the
122

benefits 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 n'nety-three,
a notice that he or they in good faith intend to hold and
work said claim: 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.
XVriRE AXD

FNTFNT

OF

MINING CLAIMS.

1. Mining claims are of two distinct classes:
claims and placers.
LODE

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 conditions 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 impaired 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
intention 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 association of persons, severally qualified as above,
may make joint location of such claim of fifteen hundred
feet, but in no event 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 num­
ber of persons composing the association.
5. With regard to the extent of surface ground adjoin­
ing a vein or lode, and claimed for the convenient working
thereof, the Revised Statutes provide that the lateral ex­
tent of locations 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 ex­
isting 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 mid­
dle 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, however,
300 feet on each side are allowed, and by reason of prior
123

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 explora­
tion 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 of May, 1872, can exceed a
parallelogram fifteen hundred feet in length by six hun­
dred 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 sur­
face 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,
Revised Statutes, are restricted to such locations on veins,
lodes or ledges as may be “situated on the public domain.”
In applications 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 terminates where the lode, in its onward
course or strike, intersects the exterior boundary of such
excluded ground and passes within it. The end of his sur­
vey 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 lo­
cators, the date of the location, and such a description of the
claim or claims located, by reference to some natural ob­
ject or permanent monument, as will identify the claim.
10. No lode claim shall be located until after the dis­
covery of a vein or lode within the limits of the claim, the
object of which provision is evidently to prevent the appro­
priation of presumed mineral ground for speculative pur­
poses, 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 crevice; 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 mark­
ing the boundaries of his claim on the surface. His loca­
tion notice should give the course and distance as nearly
as practicable from the discovery shaft on the claim to
some permanent, well-known points or objects, such, for
instance, as stone monuments, blazed trees, the confluence
124

of streams, point of intersection of well-known gulches,
ravines or roads, prominent buttes, hills, etc., which may
be in the imnaediate vicinity, and which will serve to per­
petuate and fix the locus of the claim and render it sus­
ceptible 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 sur­
face 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
direction from the point of discovery; it being essential
that the location notice filed for record, in addition to the
foregoing description, should 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 latter case,
how many feet are claimed upon each side of such dis­
covery point.
13. The location notice must be filed for record in all
respects 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 expended 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 subsequent to May 10,
1872, and prior to January 1, 1875. Prom and after January
1, 1875, the required amount must be expended annually
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 provisions of the Act of Congress, approved January
"y 1880, the first annual expenditure becomes due and
iust be performed during the calendar year succeeding
that in which the location was made. Expenditure made
)r labor performed prior to the first day of January suc¡eeding the date of location will not be considered as a
^art of or applied upon the first annual expenditure rejuired by law.
16. Failure to make the expenditure or perform the
4bor required upon a location made before or since May
Vl872, will subject a claim to relocation, unless the orig­
nal locator, his heirs, assigns or legal representatives have
:esumed work after such failure and before relocation.
17. Annual expenditure is not required subsequent to
ffltry, the date of issuing the patent certificate being the
We contemplated by statute.
125

18. Upon the failure of any one of several co-owners of
a vein, lode or ledge, which has not been entered, to con­
tribute his portion 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 im­
provements as required by said Revised Statutes may, at
the expiration 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 proportion to meet such
expenditures or improvements, his interest in the claim by
law passes to his co-owners who have made the expendi­
tures or improvements as aforesaid. Where a claimant
alleges ownership of a forfeited interest under the fore­
going provision, the sworn statement of the publisher as
to the facts of publication, giving dates and a printed copy
of the notice published, should be furnished, and the claim­
ant must swear that the delinquent co-owner failed to
contribute his proper proportion within the period fixed
by the statute.
TIÎNNE1.S.
19. The effect of Section 2323, Revised Statutes, is sim­
ply 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 weré not previously known to exist, within three
thousand feet from the face or point of commencement of
such tunnel, and to prohibit other parties after the com­
mencement of the tunnel, from prospecting for and mak­
ing locations of lodes on the line thereof 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 con­
strued 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 pros­
pecting 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 monument at the face or point of commence­
ment thereof, upon which should be posted a good and
sufficient notice, giving the names of the parties or com­
pany 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 well-known
objects in the vicinity by which to fix and determine the
Iccus, in manner heretofore set forth applicable to loca­
tions 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,
126

by stakes or monuments placed along such lines at proper
intervals, to the terminus of the three thousand feet from
the face or point of commencement of the tunnel, and the
lines so marked will define and govern as. to the specific
boundaries within which prospecting for lodes not pre­
viously known to exist is prohibited while work on the
tunnel is being prosecuted with reasonable diligence.
22. At the time of posting notice and mark;ng 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 themselves 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 development 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 recorded, 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 w.ll
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 monopolizing the lands lying in front of their
ftunnels, 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 within 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 existing law applicable thereto. Registers
and receivers should therefore make a reference to said
act on the entry papers in the case of all placer entries made
for lands containing stone chiefly valuable for building
purposes. It will be noted that lands reserved for the bene­
fit of public schools or donated to any State are not sub|Ject f.o .entry under said act.
127

27. It is to be observed that the provisions of the min­
eral 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, wht^h
is intended for the greater convenience of miners in segre­
gating their claims both from one another and from inter­
vening agricultural lands.
29. It is held therefore, that under a proper construction
of the law these ten-acre lots in mining districts should be
considered 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 adjoining or cornering, may make entry there­
of, 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 de­
scription, 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. 14 of
the SW. 14 of the NW. 14,” or, if in the form of a paral­
lelogram as aforesaid, it may be described as the “W. 1^
of the W. Va of the SW. 14 of the NW. 14 (or the N. Vs of
the S. 14 of the NE. 14 of the SE. ^4) of section------- , town­
ship
-, range------- ,” as the case may be; but, in addi­
tion to this description of the land, the notice must give
all the other data that is required in a mineral application,
by which parties may be put on inquiry as to the premises
sought to be patented. The proofs submitted with appli­
cations for claims of this kind must show clearly the char­
acter 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 Sec­
tion 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
128

the lode claim or claims and the area of the placer sepa­
rately. 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 applicant 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 hun­
dred 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
located after May 10, 1872, shall conform as nearly as prac­
ticable with the United States system of public surveys
and the subdivisions of such surveys, and no such loca­
tions shall include more than twenty acres for each indi- •
vidual claimant.
35. The foregoing provisions of law 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 person
can not exceed forty acres, and one by three persons can
not exceed sixty acres.
36. The regulations hereinbefore given as to the man­
ner of marking locations on the ground, and placing the
same on record, must be observed in the case of placer
locations so far as the same are applicable, the law requir­
ing, however, that where placer claims are upon surveyed
public lands the locations must hereafter be made to con­
form to legal subdivisions thereof as near as practicable.
PROCEDtRE

TO

OBTAIN PATENT
, LANDS.

TO

MINERAL

37 As a condition for the making of application for
patent according to Section 2325, there must be a prelim­
inary showing of work or expenditure upon each location,
either by showing the full amount sufficient to the main­
tenance 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 ad­
verse parties after abandonment.
The “pending year” means the calendar year in which
application is made, and has no reference to a showing of
work at date of the final entry.
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 surveyor-general of the State or Territory in which
the claim lies, such survey to show with accuracy the
exterior surface boundaries of the claim, which boundar’es
are required to be distinctly marked by monuments on
the ground. Four plats and one copy of the original fieldnotes in each case will be prepared by the surveyor-gen129

eral; 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 reference. As there is no resident surveyorgeneral 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 recorded), 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
mineral claims by a progressive series of numbers,, begin­
ning 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 addition 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 near­
est public corner of the United States surveys, unless
such claim be on 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
acutally surveyed traverse lines if the nature of the coun­
try should not permit direct measurement. If a regularlv
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 pre­
pare and transmit to the local land office and to this office
a diagram tracing showing the portions of Uaral fortyacre 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 giv­
ing the area of each lot.
43. The following particulars should be observed in the
survey of every mining claim:
130

(1) The exterior boundaries of the claim, the number of
feet claimed along the vein, and, as nearly as can be ascer­
tained, 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 appli­
cant 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 exte­
rior boundaries should be stated, and also the area in con­
flict 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,
unsurveyed.................. .................................................................. 1.48
It does not follow that because mining surveys are
required to exhibit all conflicts with prior surveys the
; areas of conflict 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,
together 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 mining district and county, and the
names of adjoining and conflicting 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 required 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 posses­
sory right to the premises therein described, in virtue of
a compliance by himself (and by his grantors, if he claims
' by purchase) with the mining rules, regulations, and cus­
toms of the mining district, State or Territory in which
the claim lies, and with the mining laws of Congress; such
sworn statement to narrate briefly, but as clearly as pos­
sible, the facts constituting such compliance, the origin
131

Ji

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 appli­
cant for patent claims the interest of others associated
with him in making the location, or only as purchaser,,
in addition to the copy of the location notice, must be fur­
nished a complete abstract of title as shown by the record
in the office where the transfers are by law required to
be recorded, certified to by the officer in charge of the
record, under his official seal. The officer should also cer­
tify 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 fur­
nished 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 hav­
ing been destroyed by fire or otherwise lost, affidavit of
the fact shohld be made, and secondary evidence of pos­
sessory 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, occu­
pancy, possession, improvements, etc., and in such case
of lost records, any deeds, certificates of location or pur­
chase, or other evidence which may be in the 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 in­
cludes no land which is embraced in a prior or pending
application for patent or entry, or for any lands embraced
in a railroad selection, 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 ac­
cepted and filed, they should formally reject the same,
giving the reasons therefor, and allow the applicant thirty
days for appeal to this office under the Rules of Practice
50. Upon the receipt of these papers, if no reason ap­
pears for rejecting the application, the register will, at the
expense of the claimant (who must furnish the agreement
of the publisher to hold applicant for patent alone respon­
sible 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 newspaper, nine consecutive inser­
tions are necessary: when in a daily newspaper, the notice
must appear in each issue for sixty-one 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 cla’m.
In addition to such data the published notice must further
indicate the locus of the claim by giving the connectingline, as shown bv the field-notes and plat, between a corner
of the claim and a United States mineral monument or a
corner of the public survey, and thence the boundaries of
the claim by courses and distances,

132

52. The registef shall publish the notice of application
for patent in a paper of established character and general
circulation, 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
surveyor-general 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 em­
braced in the application, or, if the application embraces
several locations held in common, that an amount equal
to five hundred dollars for each location has been so ex­
pended upon, and for the benefit of, the entire group; that
the plat filed by the claimant is correct; that the fieldnotes of the survey, as filed, furnish such an accurate de­
scription of the claim as will if incorporated in a patent
serve to fully identify the premises, and that such refer­
ence is made therein to natural objects or permanent mon­
uments as will perpetuate and fix the locus thereof: Pro­
vided, That as to all applications for patent made and
passed to entry before July 1, 1898, or which are by pro­
tests or adverse claims prevented from being passed to
entry before that time, where the application 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 the value of labor
expended or improvements made from his deputy who
makes the actual survey and examination upon the prem­
ises, 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 cer­
tificate 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 opublication a sworn statement that the notice was pub­
lished for the statutory period, giving the first and last
day of such publication, and his own affidavit showing that
the plat and notice aforesaid remained conspicuouslv
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
publication, permit the claimant to pay for the land ac­
cording, 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 therefor. 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
Commissioner of the General Band Office and a patent
issued thereon if found regular.
133

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 preserving a surface conflict lost by failure
to adverse or lost by the judgment of the court in an ad­
verse suit. One holding a present joint interest in a min­
eral location included in an application for patent who is
excluded from the application, so that his interest would
not be protected by the issue of patent thereon, may pro­
test against the issuance of a patent as applied for, set­
ting 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 appli­
cation for patent does not have an “adverse” claim within
the meaning of Sections 2325 and 2326 of the Revised Stat­
utes. See Turner v. Sawyer, 150 U. S., 578-586.
59. Any party applying to make entry as trustee must
* disclose fully the nature of the trust and the name of the
cestui que trust; and such trustee, as well as the benefi­
ciaries, must furnish satisfactory proof of citizenship; and
the names of beneficiaries, 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 conforms 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 practicable with the United States system of
public-land surveys and the rectangular subdivisions 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.
61. The proceedings for obtaining patents for veins or
lodes having already been fully given, it will not be neces­
sary to repeat them here, it being thought that careful
attention thereto by applicants and the local officers will
enable them to act understandingly in the matter, and
make such slight modifications 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 pat­
ent upon a placer claim must be exercised in determining
the exact classification of the lands. To this end the clear­
est evidence of which the case is capable should be
presented.
134

f

(1) If the claim be all placer ground, that fact must be
stated in the application and corroborated by accompany­
ing proofs; if of mixed placers and lodes, it should be so
set out, with a description of all known lodes situated
within the boundaries 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 par­
ties, make full examination of all placer claims surveyed
by them, and duly note the facts as specified in the law,
stating the quality 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 character and extent of all surface and under­
ground workings, whether placer 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 ref­
erence to the proximity of centers of trade or residence:
also of well-known systems of lode deposit or of individual
lodes. He should also report aB 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 he procured for that purpose: and, finally,
what works or expenditures have been made by the claim­
ant 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*deput3^
under oath to the surveyor-general, and duly corroborated;
and a copy of the same should be furnished with the appli­
cation 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.

MTUE SITES.
63. Band entered as a mill site must be shown to be
non-mineral. Mill sites are simply auxiliary to the work­
ing of mineral claims, and as Section 2337, which provides
for the patenting of mill sites, is embraced in the chapter
of the Revised Statutes relating to mineral lands, they
are therefore included in this circular.
64. To avail themselves of this provision of law parties
holding the possessory right to a vein or lode, and to a
piece of non-mineral land not contiguous thereto for mining
or milling purposes, not exceeding the quantity allowed for
such purposes bv Section 2337 or prior laws, under which
the land was appropriated, 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 pint and field-notes,
135

may include, embrace, and describe, in addition to the vein
or lode, such non-contiguous mill site, and after due
proceedings as to notice, etc., a patent will be issued con­
veying the same as one claim. The owner of a patented
lode may, by an independent application, secure a mill
site, if good faith is manifest in its use or ooccupation in
connection 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 designation; 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 application for patent must be
conspicuously posted upon the mill site as well as upon
the vein or lode for the statutory period of sixty 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
embraced 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, con­
sist of the sworn statement of two or more persons capa­
ble, from acquaintance with the land, to testify understandingly.
68. The proof necessary to establish the citizenship of
applicants for mining patents must be made in the fol­
lowing manner: In case of an incorporated company, a
certified copy of their charter or certificate of incorpora­
tion 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 form­
ing such association, must be submitted. This affidavit
must be accompanied by a power of attorney from the
parties forming such association, authorizing the person
who makes the affidavit of citizenship to act for them in
the matter of their application for patent.
69. In case of an individual or an association of indi­
viduals who do not appear by their duly authorized agent,
you will require the affidavit of each applicant, showing
whether he is a native or naturalized citizen, when and
where born, and his residence.
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 intention, or from which his certificate of
citizenship issued, and present residence.
71. The affidavit of the claimant as to his citizenship
may be taken before the register or receiver, or any other
136

officer authorized to administer oaths within the land dis­
trict; 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 dis­
interested persons, such testimony may be taken at any
place before any person authorized to administer oaths,
and whose official 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 continued. The plat forwarded as part of
the proof should not be folded, but rolled, so as to prevent
creasing, and either transmitted in a separate package or
so enclosed with the other papers that it may pass through
the mails without creasing or mutilation. If forwarded
separately, the letter transmitting the papers should state
the fact.
74. No entry will be allowed until the register has sat­
isfied 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.
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 possessory right to which all controversy or litigation
has long been settled.
77. When an applicant desires to make his proof of
possessory right in accordance with this provision of
law, he will not be required to produce evidence of location,
copies of conveyances, or abstracts of title, as in other
cases, but will be required to furnish a duly certified copy
of the statute of limitation of mining claims for the State
or Territory, together with his sworn statement giving a
clear and succinct narration of the facts as to the origin
of his title, and likewise as to the continuation of his pos­
session of the mining ground covered by his application;
the area thereof: the nature and extent of the mining that
has been done thereon; whether there has been any oppo­
sition 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
additional facts within the claimant’s knowledge having
a direct bearing upon his possession and bona fides which
he may desire to submit in support of his claim.
78. There should likewise be filed a certificate, under seal
of the court haying 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 portion of the claim applied for is pend137

ing, and that there has been no litigation before said coutt
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
relative to his possession, occupancy, and improvements by
corroborative 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 reg­
ister and receiver of the land office where the application
for patent was filed, or with the register and receiver of
the district in which the laq,d 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 authorizd agent or attorney-in-fact of the adverse
claimant cognizant of the facts stated.
81. Where an agent or attorney-in-fact verifies the ad­
verse claim, he must distinctly swear that he is such agent
or attorney, and accompany his affidavit by proof thereof.
82. The agent or attorney-in-fact must make the affi­
davit 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 claims as a purchaser for valuable consider­
ation 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 furnished; or, if the transaction
was a merely verbal one, he will narrate the circumstances
attending the purchase, the date thereof, and the amount
paid, wffiich 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 recorder.
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 rela­
tive situation or position with the one against which he
claims, and the extent of the conflict: Provided, how­
ever, That if the application for patent describes the claim
by legal subdivisions, the adverse claimant, if also claim­
ing 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 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 com138

mence proceedings in a court of competent jurisdiction to

determine the question of right of possession, and to prose­
cute the same with reasonable diligence to final judgment,
and that, should such adverse claimant fail to do so, his
adverse claim will be considered waived, and the appli­
cation for patent be allowed to proceed upon its merits.
86. 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 notifi­
cations 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 withdrawn,
87. Where an adverse claim has been filed and suit there­
on commenced within the statutory period, and final judg­
ment determining the right of possession rendered in favor
of the applicant, it will not be sufficient for him to file .
with the register a certificate of the clerk of the court, set­
ting 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 bv
Section 2326, Revised Statutes.
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 para­
graphs.
90. Where an adverse claim has been filed, but no suit
commenced 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
b3^ the clerk of the circuit court of the United States for
the district in which the claim is situated, will be required.
AIM’OTNTMENT OP DEPUTIES FOR SURVEY
MINING CLAIMS—CHARGES FOR SIFRVEYS AND PIIHGICATIONS—FEES
OF REGISTERS AM) RE­
CEIVERS, ETC.

OF

91. Section 2334 provides for the appointment of sur­
veyors 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. Un­
der this authority of law the following rates have been
established as the maximum charges for newspaper publi­
cations in mining cases:
(!) 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 abbre­
viated as to curtail the description essential to a perfect
139

notice, and thé said rates established upon the understand­
ing that they are to in the usual body type used for
advertisements.
(2) For the publication of citations in contests or hear­
ings involving the character of lands the charges shall not
exceed eight dollars for five publications in weekly news­
papers 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 under­
stood that all expenses of these notices and surveys are to
be borne by the mining claimants and not by the United
States. The claimant may employ any deputy surveyor
within such district to do his work in the field.
Bach
deputy mineral surveyor, before entering upon the duties
of his office or appointment, shall be required to enter into
such bond for the faithful performance of his duties as
may be prescribed by the regulations of the Band Depart­
ment in force at that time.
93. With regard to the platting of the claim and other
•office work in the surveyor-general’s office, that officer will
make an estimate of the cost thereof, which amount the
claimant will deposit with any assistant United States treas­
urer 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 min­
eral deputy surveyors, so that one or more may be located
in each mining district for the greater convenience of
miners.
95. The usual oaths will be required of thèse deputies
and their assistants as to the correctness of each survey
executed by them.
The duty of the deputy mineral surveyor ceases when
he has executed the survey and returned the field-notes
and preliminary plat thereof with his report to the sur­
veyor-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 attor­
ney before the land office in connection with a mining
claim.
The surveyors-general and local land officers are ex­
pected to report any infringement of this regulation to
this office.
96. Should it appear that excessive or exorbitant charges
hâve been made by any surveyor or any publisher, prompt
action 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 payable to each officer by an adverse claimant
at the time of filing 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
140

in duplicate, one to be given the applicant or adverse
claimant, as the case may be, and one to be forwarded to
the commissioner of the General Land Office on the day of
issue. The receipt for mining application should have
attached the certificate of the register that the lands in­
cluded in the application 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 appli­
cations filed, and a register of receipts, accompanied with
an abstract of mineral lands sold, and an abstract of
adverse claims filed.
100. 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 receiver may be respectively entitled as
fees and commissions, with limitations in regard to the
legal maximum.
HEARINGS TO DETERMINE CHARACTER OP
LANDS.

1

101. The Rules of Practice in cases before the Unit d
States District Land Office, the General Land Office, and
the Department of the Interior will, so far as applicable,
govern in all cases and proceedings arising in contests and
hearings to determine the mineral character of lands.
102. No public land shall be withheld from entry as
agricultural land on account of its mineral character, ex­
cept such as is returned by the surveyor-general as min­
eral; 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
practically of two kinds, as follows:
(1) Lands returned as mineral by the surveyor-general.
When such lands are sought to be entered as agricult­
ural under laws which require the submission of final
proof after due notice by publication and posting, the fil­
ing of the proper non-mineral affidavit in the absence of
allegations that the land is mineral will be deemed suffi­
cient as a preliminary requirement. A satisfactory show­
ing 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 r quired, notice thereof must first be given by publication
for sixty days and posting in the local office during the
same period, and affirmative proof as to the character of
the land submitted. In the absence of allegations that the
land is mineral, and upon compliance with this require­
ment, 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
141

practice will be governed by the rules in force in contest
caes. .

104. Where a railroad company seeks to select lands not
returned as mineral, but within six miles of any mining
location, claim, or entry, or where in the case of a selec­
tion by a 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 railroad company or State for
a period of sixty 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 valuable for mining than for agricultural purposes.
105. At the expiration of the period of publication the
register 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
character of any such lands, together with any informa­
tion they may have received as to the mineral character
of any of the lands mentioned in said list, when a hear­
ing 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 plac ,
bearing gold, silver, cinnabar, lead, tin, or copper, or other
valuable deposit, which has ever been claimed, located,
recorded, or worked; whether such work is entirely aban­
doned, 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 descrip­
tion, 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 facilities are for obtaining water
for mining purposes: upon what particular ten-acre sub­
divisions mining has been done, and at what time the land
was abandoned for mining purposes, if abandoned at all.
107. The testimony should also show the agricultural
capacitites of the land, what kind of crops are raised
thereon, and the value thereof; the number of acres act­
ually 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
possible: 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 whnt date, if at all,
valuable deposits of mineral v/ere first known to exist on
the lands.
142

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 aricultural land, the proper party at his own ex­
pense will be required to have the work done, at his
option, either by United States deputy, county, or oth­
er local surveyor; application therefor must be made to
the register and receiver, accompanied 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 receiver will forward
the same to this office, when the necessary 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 require­
ments 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
deponent’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
survey with the register and receiver, duly sworn to as
aforesaid, they will transmit the same to the surveyorgeneral for his verification and approval; who, if he finds
the work correctly performed, wall properly mark out the
same upon the original township plat in his office, and fur­
nish authenticated copies of such plat and description both
to the proper local land office and to this office, to b ■
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, veri­
fied by the surveyor-general, showing the claim or claims
segregated, and designating the separate fractional agri­
cultural tracts in each 40-acre legal subdivision by the
proper lot number, beginning with No. 1 in each section,
and giving the area in each lot, the same as provided in
paragraph 45, in the survey 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
equivalent 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 fur­
nished 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 prospectors for minerals, for firewood, fencing, build­
ings, mining, prospecting, and other domestic purposes,
as may be needed by such persons for such purposes; such
timber to be used within the State or Territory, respect­
ively, where such reservations may be located.”

143

This provision is limited to persons resident in forest
reservations who have not a sufficient supply of timber or
stone on their own claims or lands for the purposes enum­
erated, or for necessary use in developing the mineral or
other natural resources of the lands owned or occupied by.
them. Such persons, therefore, are permitted to take tim­
ber 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, applica­
tion must be made to and permission given by the de­
partment.
BINGER HERMANN,
Commissioner.
Department of the Interior, June 24, 1899.
Approved :
E. A. HITCHCOCK, Secretary.

Kiowa and Comanche
Reservation»
Locatiop, Climate,Soil and Products.
Agricultual aod Mineral Wealtt).
BOUNDARIES.

The boundaries of the Kiowa, Comanche, and Apache
lands are as follows; Commencing at a point where the
Washita River crosses the ninety-eighth meridian west
from Greenwich: thence up the Washita River, in the mid­
dle of the main channel thereof, to a point thirty miles,
by river, west of Port 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 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, ip the middle of the main channel thereof,
to its intersection with the ninety-eighth meridian of longi­
tude 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 south­
western portion of Oklahoma. On the south is the main
Red River and on the west is the north fork of the Red
River. On the north is the Washita River.
Description of Country.—

144

The following article, descriptive of the Kiowa, Com­
anche, and Apache lands, recently appeared in the “Chick­
asha Express.” As the editor has lived for years on the
border of this reservation, and speaks from personal
knowledge, we believe the information will be found reli­
able. 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 he no
145

doubt as to the climate and productiveness of the reser­
vation. It is not only a good climate, but has a productive
soil. Surrounded as it is by counties already settled, cul­
tivated by a people who are intelligent, cultivated, religious
and refined, 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 fork 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 Moun­
tains, which is a range of low but rough and rugged moun­
tains reaching from the eastern to the western boundaries,
and comprises about one million acres. These mountains
contain minerals in untold quantities—untold for the rea­
son that they have been guarded with the jealous eye of
an agent and his Indian police and United States troops
from the vigilant search and covetous grasp of the wily
prospector. That rich minerals exist 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 quantities. 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 extent 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.


Gruzins' liands.—

“Along the foot of this mountain range are numerous
streams of running water, skirted with more or less tim­
ber. The land along these mountains is more or less
broken, but affords fine little valleys of fertile lands and the
finest of pasture or grazing lands, the principal grasses
being the gamma and mesquite, being the most nutritiou.s
that grow. Cattle 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
that time. Cattle are turned loose upon these mesquite
pastures and never eat anything else, summer nor winter.
Timber.-.

“Away from the mountains the land opens out into un­
dulating plains, crossed and traversed with fine streams of
fine flowing water, skirted with more or less timber. Often
these plains are covered with mesquite trees, a stunted
bush of a hard red wood, resembling cedar. It makes
excellent fence-posts and a good wood for fuel. The tree
has a large root of a more tangled and knotty growth
than the top. These roots are easily worked and have
great heating properties. These mesquite flats are fine
grazing, and make fine wheat lands when cultivated.

146

Water Supply.-

“The water supply is abundant in every part ofo the res­
ervation, being found in springs, creeks and by digging to
depths of 20 to 40 feet. The rainfall in this reservEitton can
only be estimated by the counties adjoining, which would
be from 30 to 36 inches a year.
Climate.—

“The climate is all that one could ask for, the temper­
ature in summer seldom going above 100, and in winter
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 Ih'e invariably fanned with a
breeze that makes sleep not only possible, but refreshing.
But little snow falls and it is but seldom that ice forfns to
keep cattle from drinking from running streams.
Products.—

“Farmers along the Washita River are this year gather­
ing 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 to-day 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 killing white peo­
ple, and old habits are concerned. They have many old
habits of idleness, clinging to the native dress, and a dread
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 educated, speak Fnglish, and
are doing a great work in inducing the older ones to
accept the inevitable and follow the white man’s lead.
Pluce for a Home.—

“To the person who chooses to settle on this reservation
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, Nebraska, 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 Scuts and County Imines.-

“Under the law applicable to these lands the Secretary
of Interior has the authority 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 be all 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 allotments 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 expense of proving up
said townsites.
U. S. Land Office.—

“The land offices for these new lands have not been lo­
cated, but this will be done in ample time for the public,
generally, to have knowledge thereof.
147

W'"lie 11 Will Tliese Eaiids lie Oi»eiie<l f—

“No one can now state, definitely, just when these lands
will be opened to settlement. The Secretary of Interior
is required to make the allotments within ninety 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
that the lands shall be opened to settlement by the procla­
mation of the President, within six months after the allot­
ments 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 best uosted, is, that the lands wiU
not be opened until March
April, 1901.”

BRIEF DIGEST.
The following references are to Décisions of the Depart­
ment of the Interior. The figures before “L. D.” or before
the “hyphen,” refer to volume, the figures following to
page.
Abandon ment.—

All rights lost by actual, 4 L. D. 267;
Erroneous advice will not excuse, 4 L. 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,
10-510; 13-154;
Absence occasioned by poverty not, 13-42, 113;
Charge of, will not be sustained where it appears that
the entryman’s family resided on the land in his
absence, 28-121;
Charge of, premature if brought prior to the expiration
of the period given under the law for the establish­
ment of residence, 18-144.
A «1 en d in ents.—

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;
Mav be allowed on suggestion of defendant’s death, 10
D. D. 261;
Of contest affidavit, 15 L. 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 Enter.—

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 D. D. 309;
Is not a contest, 15 L. D. 415;
Accompanied with allegations of prior settlement, a
hearing 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;
148

149

Appeal—Con tinned.—

Appiieaiiuii to Kilter—Continued.—

Must be filed in time, 9-668;
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
allowed, 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 ignor­
ance of the law and Rules of Practice, 22-88.

Law to protect settlement rights by, when prior appli*
cation 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 L. 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 office regulating presentation of, conclus­
ive 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
executed 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
concerned, 20-535, 288;
Properly rejected does not reserve the land even though
appeal is taken, 20-93: but a different rule applies if
improperly rejected, 20-135;
To enter that embraces in part land not subject to en­
try 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 en­
try 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;

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
illegal, 26-708.
Alien.—

May acquire no right by settlement, 1-445, 449; 3-452; 4-189,
166; 6-98; 8-60, 289; 10-463; 13-242; 14-568, 664;
May file valid contest, 17-503:
Homestead entry by, not void, but voidable, 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.
Ceunnnitations.—

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 interfered with, if
abuse of discretion does not appear, 22 L. D. 22.

Contest.—

A ppeal.—

Will not lie from interlocutory order, 11-84;
All rights are lost by failure to, 11-416, 660, 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: 15-566:
Copy of, must be served on opposite party, 11-249, 395,
406:
Notice of, must be served. 10-546, 408, 595: 11-214; 14-428;
13-225: 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;
150

) ■

Simultaneous application to, awarded to highest bidder,
14-506;
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 resi^
dence, 28-580:
On charge of death of entryman leaving no heirs, com­
petent 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;
151

Contest—Continued.—

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 In­
dian allotment, 24 L. D. 264;
On prior settlement, contestant must show establish­
ment and maintenance 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 marries, 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 judg­
ment of cancellation, 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
answers, 25 B. D. 143;
Commission should be signed by both register and
receiver, 25 B. 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
B. D. 581;
In contest for preference right, contestant must pay
costs, including costs of depositions taken by defend­
ant, Mendenhall vs. Cagle, 30 B. D. ;
Under our Territorial Baw, pages 372, 374, and under the
Act of Congress approved March 3, 1891 (see Mor­
gan’s Manual, p. 145), and under the decision of our
Territorial Supreme Court (see Pinch vs. U. S., 1
Okla. 396), a witness may be compelled to appear
before the probate judge and give his deposition in
be half of contestant, in a case on trial before the
U. S. Band 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 B. D. 169;
Bocal ofiScers may summarily stop obviously irrelevant
questioning, or, in their discretion allow the same to
proceed at the cost of party making same, 18 B. D.
559;
Bocal officers not authorized to exclude testimony, 21-54;
Plaintiff not entitled to have claimant put on witnessstand for cross-examination in final proof, 21 B. D.
458;
On proper notice, local officers may inspect premises,
and upon the information thus obtained reach their
conclusion, 24 B. D. 277.
Eiiti >
Failure of record to show cannot defeat, 28 B. D. 335;
Not invalid when allowed in absence of register, 28 B.
D. 28;
152

Entry—Continued.—

Application to amend, largely in discretion of Band De­
partment, 28 B. D. 337;
Second, may be allowed when, 28 B. D. 259.

Fees.—

Tender of not required when land applied for is cov­
ered by prior adverse entry, 18-75.

Final Proof.—

Under instructions from commissioner of General Band
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 exten­
sions which have been made. See circular 30, B.
D. p------- ;
Under Section 2, Act of March 2, 1895, chief justices in
Territories authorized to appoint “U. S. Court Com­
missioners,” who are especially authorized to admin­
ister oaths in preliminary affidavits and final proofs
required under homestead and other land laws, but
no commissioner shall be appointed who resides within
thirty miles of any local land office or any other com­
missioner. See 28 Stat. B. 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 B. D. 274;
Right to purchase additional lands under Section 1, Act
of January 18, 1897, is not limited by any require­
ment that the tracts so purchased should be contigu­
ous, 29 B. D. 532.
H< Irs.—
Where entryman and his widow die before final proof,
under Sec. 2291 of R. S., adult as well as minor chil­
dren inherit, 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 children. Section 2292, Revised Statutes,
irrespective of any questions as to their heirship un­
der local statutes, 29 B, D. 325.
Hojnestead Law .—

Party in Oklahoma not disqualified unless he owns 160
acres of land, 28 B. D. 187;
Party acquiring 160 acres of land after settlement and
before entry is disqualified, 28 B. D. 198.

Jurisdiction.—

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

Leave of Absence.—

On proper showing a second year’s leave of absence may
be granted, 23 B. D. 200;
Not accorded settlers who have no claim of record, 27
B. D. 317;
Beave of absence is not protection against contest for
abandonment where the entryman prior to such leave
bas failed to comply with the law, 29 B, D. 154, 203,
153

liesi ileiK’e—Ciin tinned.—

5î n rrl e<J VVuiiian.—

Where an application of a married woman is errone­
ously rejected, the marriage of applicant will not dis­
qualify her to make entry as of the date of applica­
tion, 18 L. D. 45;
Where wife maintains residence on the land, no one hut
her will be heard to allege desertion in proof of his
abandonment, 21 B. D. 152;
A single woman contesting for preference right, who
marries during the pendency of contest, is disqualified
to make entry, 29 B. D, 297.

N at II r a 1 i y.a t ion

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 B.
D. 528;
The child of an alien occupies the status of one who has
field his declaratory of intention where the father dur­
ing the minority of such children declares such inten­
tion, 29 B. D. 497;
Rights acquired by declaration of intention may be lost
by abandonment, 29 B. D. 627.
Kiitice.—
Service upon attorney-in-fact not sufficient, 28 B. D. 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
excluded and the time counted from the next succeed­
ing day, 21 B. D. 164.
Protest.—*

May be dismissed if not properly corroborated, 17 B.
D. 108.

Pnlilication Service.—

If any error occurs in service of publication, which
makes makes necessary a republication, a new set
should be filed as a basis of an order therefor, 29 B.
D. 693.

Keliearing-.—

Not allowed by plea of poverty, 17 B. D. 116.
K ei iiiqui slim eut.—

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 entryman no authority
to relinquish, 29 B. D. 565.

Hesideiice.—

One claiming by settlement must maintain, 28 B. D.
169, 266, 480;
Continuity of, not affected by absence, resulting from
illness and in necessity of earning money, 28 B. D. 503;
Absence 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 Ia D. 113;
154

Poverty will not excuse failure to establish, 25 B. D. 44;
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 settlement, his laches cannot be cured by the pre­
sumption of residence, prior to the institution of pro­
ceedings by the adverse settlor charging said de­
fault, 29 B. D. 254, 203.
Setflemeiit.—
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 arbi­
trary division of the land, nor award to highest bid­
der, 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 second entry, 23 B. D. 440;
Notices defining extent of claim posted outside of tech­
nical quarter-sections defeat of, 17 B. D. 197;
As against an intervening entry one claiming by settle­
ment 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 subdi­
visions outside the section on which said notice is
posted, 29 B. D. 197:
Posted notice of extent of claim that embraces land in
fractional quarter-section, posted on the subdivisions
not occupied and improved by the settler, serves to
protect his priority right thereto, 29 B. D. 197:
In case of claim for land in different fractional quarter­
sections and surveys for lots, the notice of the extent
of claim given by occupancy and improvement is lim­
ited to the particular lots occupied and improved, 29
B. D. 197. •
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 B. D. 108, 246;
The right of second entry as provided by Section 13, Act
of March 2, 1889 (identical with clause in Kiowa and
Comanche 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 B. D. 246, 372.
X55

Vìa r »’ìeiJ W oiiisin.—
Where an application of a married woman is errone­
ously rejected, the marriage of applicant will not dis­
qualify her to make entry as of the date of applica­
tion, 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
abandonment, 21 Ij . D. 152;
A single woman contesting for preference right, who
marries during the pendency of contest, is disqualified
to make entry, 29 L. D. 297.

15 «‘Mid
tinned.-»
Poverty will not excuse failure to establish, 25 L. D. 44;
While an application is pending, the charge of abandon­
ment will not lie—an applicant need not reside on the
land, 26 L. D. 219;
If entryman fails to maintain the continuity of his resi­
dence during pendency of contest involving priority
of settlement, his laches cannot be cured by the pre­
sumption of residence, prior to the institution of pro­
ceedings by the adverse settlor charging said de­
fault, 29 E. D. 254, 203.

N at II r « 1 i w.tf t ion

Settlein euf.—

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
field his declaratory of intention where the father dur­
ing the minority of such children declares such inten­
tion, 29 L. D. 497;
Rights acquired by declaration of intention may be lost
by abandonment, 29 L». D. 627.
Kofiee.—
Service upon attorney-in-fact not sufficient, 28 L. D. 361;
Service of, defective, when further showing as a basis
for publication necessary, 28 E. D. 279;
In computing of, date of when service is made will be
excluded and the time counted from the next succeed­
ing day, 21 L. D. 164.
I’rotest.—
May be dismissed if not properly corroborated, 17 L.
D. 108.
I’liblicntioii Service.—

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

Relieiiri ng.--

Not allowed by plea of poverty, 17 L. D. 116.

K el inquisii 111 eiit.—

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

Res id cuce.—

One claiming by settlement must maintain, 28 L. D.
169, 266, 480;
Continuity of, not affected by absence, resulting from
illness and in necessity of earning money, 28 L. D. 503;
Absence to earn money does not impeach good faith of,
17 E. D. 1;
Where wife refuses to reside upon homestead husband
may establish and maintain residence thereon without
her, 21 E. D. 113;
154

Rights between one who settles with knowledge that
another has purchased improvements and has gone to
the land office to file, 28 L. D. 547;
Rights of one who settles upon land under agreement
with the entryman to relinquish, 28 L. D. 369;
Tenant cannot make valid, 28 L. 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 L. D. 86;
A finding of simultaneous does not authorize an arbi­
trary division of the land, nor award to highest bid­
der, 23 E. D. 201, 400;
Made by one who has an existing homestead entry
must be held valid, where the settler is entitled to
make a second entry, 23 E. D. 440;
Notices defining extent of claim posted outside of tech­
nical quarter-sections defeat of, 17 L. D. 197;
As against an intervening entry one claiming by settle­
ment must assert his right by filing a contest within
three months after settlement, 29 E. D. 201;
A posted notice on the claim that covers the land in dif­
ferent sections will not protect .such claim for subdi­
visions outside the section on which said notice Is
posted, 29 E. D. 197;
Posted notice of extent of claim that embraces land in
fractional quarter-section, posted on the subdivisions
not occupied and improved by the settler, serves to
protect his priority right thereto, 29 L. D. 197;
In case of claim for land in different fractional quarter­
sections and surveys for lots, the notice of the extent
of claim given by occupancy and improvement is lim­
ited to the particular lots occupied and improved, 29
L. D. 197. •
[ Second Enlries.—

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 E. D. 108, 246;
The right of second entry as provided by Section 13, Act
of March 2, 1889 (identical with clause in Kiowa and
Comanche 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 E. D. 246, 372.

155

Soldiers and Sailors.—

In computing the time which a soldier has to establish
residence after filing his declaratory statement, the
day of filing the declaratory should be excluded and
the last day of specified period included, 24 B. B. 38.
Townsites.—

When entered under Section 22, Act of May 2, 1890, and
afterward vacated, may be reentered, in certain cases
by original entryman, 29 Stat. B. 116.

U. S. Court Coiimiissioiiers.—

Under Section 2, Act of March 2, 1895, Chief Justices in
Territories authorized to appoint “U. S. Court Com­
missioners,” who are especially authorized to admin­
ister oaths in preliminary affidavits and final proofs
required under homestead and other land laws, but
no commissioner shall be appointed who resides with­
in thirty miles of any local land office or any other
commissioner. See 28 Stat. B. 744.

INDEX TO MORGAN'S MANUAL.
ACTS OF CONORFSS.
Act of May 14, 1880, Sec. 3, 10 and 90; Act of June
5, 1900, Opening the Kiowa. Comanche and Apache
Reservations, 5 to 8: Act of March 3. 1891, Amending
Sections 2301, 2289, and 2290, Revised Statutes, 8 to 9;
Act of May 2, 1890—Organic Act. 94; Act of March 3,
1891—Non-Mineral Bands, 10; Act of March 2. 1889 Second Entries. 44; Act of March 2, 1889—Beave of
Absence, 38: Act of March 2. 1889—Original OklaJhoma
Act, 92; Act of June 5. 1900—Providing for Second
Entries, 43; Act of December 29, 1894—Second Entries,
45: Act of August 30, 1890, 90; Act of March 3, 1891.
various provisions. 91: Act of February 13, 1891, Sac
and Pox Bands, 91.
ADMINISTRATORS, 80.
ABBOTMENTS.
To Kiowa, and Comanche and Apache Indians, 6.
ACTUAB SETTBERS.
Band in Oklahoma disposed of to, 95.
AFFIDAVIT.
Non-mineral, 10; Contest affidavit (see Rules of Prac­
tice), 52.
ABSENCE.
Beave of, reference to, 26: Statutory provisions and
rules governing, 38.

ATTORNEYS.
Regulations of Department, concerning, 73, 74.
AMENDING ENTRIES, 34.
APACHE, KIOWA AND COMANCHE, 5, 6.

APPEABS.
See Rules of Practice 88 to 91, also 95 to 96; Prom
Commissioner to Secretary, 98, 99.
ARGUMENT.
Of cases before Interior Department, 69.
AGRTCUBTURAB COBBEGES.
Banil reserved for, 7.

156

157

APPLjICATION.
Simultaneous, 13: To make homestead entry, 10; With
affidavit of settlement attached, 34: To enter when
another has entered the land. 33, 34; To enter, not
contestable, 53.

COMANCHE, KIOWA AND APACHE TREATY.
Treaty, 5, 6: Act of Congress opening to settlement, 5
to 8; Towns!tes, 6.
COMMUTATION.
General discussion of, 9, 26, 27: Distinction between
commutation under the “general provisions of the
homestead law” and commutations in Oklahoma
under special acts of Congress, 41, 43; Organic Act,
96; Homestead to townsites, 106.
CITIZENSHIP AND NATURALIZATION, 80.
CHURCH.
May convey homestead for church purposes, 9.
CEMETERY.
Conveyance of homestead for, 9; Cities and towns
may purchase public land for, 110.
CONFLICTING CLAIMS, 33.
CONTESTS.
How to initiate in conflict of settlement rights, 33, 34;
Final proof may be made after contest tried, 51; May
be initiated for any cause affecting the legality or
validity of claim, 52; Preference right under, 53;
Affidavit must be corroborated, 53; Against heirs, 53;
Officer before whom affidavit may be made. 53; Af­
fidavit should state grounds of contest. 53; How jur­
isdiction acquired, 54; May only be ordered by Com­
missioner after final certificate is Issued, 54; Notice
of, 54; What notice must contain, 55; Appearance
waives notice, 55; Evidence must be confined to
charge, 55; Service of notice, 55; How service is made
on heirs, 55; Who may serve notice. 56: Service by
publication, 56, 57; Proof of service, 58; Notice of in­
terlocutory proceedings, 58: Rehearings, 58; Contin­
uances, 58; Depositions and interrogatories, 59 to 60;
Oral testimony before officers other than registers
and receivers, 60; Evidence, 62; Evidence may b^
taken by stenographer, 63; Appeals. 64, 66; Docu­
ments on file, 66; Reports and opinions. 66; When
authority of local officers ceases, 66; Taxation nf
costs, 67: Appeals from decisions rejecting applica­
tion to enter, 68; Proceedings before surveyors-general, 69; Provisions of General Circular, 75: Form of
affidavit, 77.
COMMISSIONS.
And fees on homestead entries, 10.
COMMISSIONERS.
Under Kansas Town site Act, 108, 109.

158

I

CORROBORATING WITNESS, 53.
CONTINUANCES, 58.
CRIME, 97.
CITIES AND TOWNS.
May purchase public land for cemeteries and park
purposes, 110.
COSTS, 67.
COUNTY SEATS.
Reference to, 98; Location of, 105, 100.
COUNTY LINES.
Establishing, 105, 100.
COURT COMMISSIONERS.
Authority to administer oaths, 11.
CHEYENNE AND ARAPAHOE LAND.
Commutation of, 27; Act opening, 97.
CHEROKEE OUTLET.
Commutation of land, 27; Act opening to settlement,
98.
DOMICILE, 24.
DURESS.
W’hat constitutes, 25.

DEPOSITIONS.
On interrogatories, 59.
DESERTED
FE.
May make homestead entry when, 12.
ENTRY HOMESTEAD.
How to make, 10; Where to make, 10; Who can
make, 11; In Kiowa and Comanche lands, 12; Simul­
taneous applications to enter, 13; When to make, 14;
Consists of what, 13; An appropriation of the land,
13; Amending, 34; Second entry, general discussion, 41,
46; Second entries in Kiowa and Comanche lands, 41,
42; Second entries under Act of March 2, 1899, 44;
Second entries under Act of June 5, 1900, 43; Second
entries under Act of December 29, 1894, 45; Second
entries under Departmental Decisions, 46; Contest of
Entry, Rules of Practice, 52.
EVIDENCE.
Irrelevant testimony, 62.
FEES AND COMMISSIONS.
Under homestead law, 8, 9, 10.
FORMS.
Soldier’s Power of Attorney, 31; Declaratory State­
ment, 33; Relinquishment, 35; Contest Affidavit, 77.
159

1
FINAL PROOFS.
General discussion of rules governing, 47, 52.
FREE HOME ACT, 104.
GOVERNOR OF THE TERRITORY.
Authorized to locate other lands in lieu of lost school
lands, 7.

GREER COUNTY,
Laws relating to lands in, 102; Townsites in, 110.
HEAD OF A FAMILY.
Right to make homestead entry, 8, 11.
HOMESTEAD LAW.
General statutory provisions, 8 to 11; Conveyance of
homestead, 9; How to initiate right under, 10; Gener­
al discussion of entries under, 10 to 14; Amending
entry under, 34; Not liable for debt, 79.
»
HUSBAND.
Residence presumed to be with wife, 23.



HEARING.
In contest cases, 54.
HEIRS.
Service of notice upon, 55; General provisions, 78, 80.

IRRIGATION.
Homesteads may be conveyed for canals, reservoirs,
or ditches, for irrigational purposes, 9.
INTERLOCUTORY PROCEEDINGS, 58.
INSANE.
Claimants who become, 78.
INDIAN HOMESTEADS, 79.
JUDICIAL COMPULSION.
Excuses absence, 25.
JURISDICTION.
Of Register and Receiver, 74.
KIOWA, COMANCHE AND APACHE TREATY, 5.
Act of Congress opening to settlement, 6 to 8; Com­
mutation of, 9, 27.
KICKAPOO LANDS, 100.
KANSAS TOWNSTTE ACT, 108.
LEAVE OF ABSENCE.
Reference to, 36; Statutory provisions and rules gnv
erning, 38.
160

MINING LAWS.
Statutory provisions, 114; Rules and regulations.
123; Statutory provisions in Kiowa and Comanche
Act, 7.
MINERAL AFFIDAVIT, 10.
MINOR HEIRS.
Of soldiers, 11, 25; Residence on homestead not re­
quired, 24; Inherit homestead claim when, 26.
MARRIED WOMEN.
May make homestead entry when, 11.
NATURALIZATION AND CITIZENSHIP, 80.

NON-MINERAL AFFIDAVIT, 10, 97.
NOTICE OP CONTEST, 54.
NON-RESIDENTS.
Service of notice upon, 55, 57.

NEUTRAL STRIP.
Rights of settlers on, 7.

NORMAL SCHOOLS.
Land reserved for, 7.
ORGANIC ACT, 94 to 97.
PROBATE JUDGES.
Homestead affidavit before, 11; Jurisdiction in townsite matters, 106, 107, 108.
PAWNEE LANDS, 99.
PAYNE COUNTY.
Lines of changed, 100.
PREFERENCE RIGHT, 53.
Greer County lands, 103.
POTTAWATOMIE LANDS.
Act of Congress opening, 97.

PERSONAL SERVICE.
In contest cases, 58.
PUBLIC LAND SURVEYS, 81 to 94.
PUBLICATION SERVICE, 55, 57.
PUBLIC LAND STRIP, 94.
PROTESTS, 52.

PUBLIC BUILDINGS, 7.

PUBLIC HIGHWAYS, 96.
POWER OP ATTORNEY.
By soldiers, to file a declaratory statement, 31 to 33.
161

FINAL. PROOFS.
General discussion of rules governing, 47, 52.
FREE HOME ACT, 104.
GOVERNOR OP THE TERRITORY.
Authorized to locate other lands in lieu of lost school
lands, 7.

GREER COUNTY.
Laws relating to lands in, 102; Townsites in, 110.
HEAD OF A FAMILY.
Right to make homestead entry, 8, 11.
HOMESTEAD LAW.
General statutory provisions, 8 to 11; Conveyance of
homestead, 9; How to initiate right under, 10; Gener­
al discussion of entries under, 10 to 14; Amending
entry under, 34; Not liable for debt, 79.
HUSBAND.
Residence presumed to be with wife, 23.

HEARING.
In contest cases, 54.



/

HEIRS.
Service of notice upon, 55; Ganeral provisions, 78, 80.

IRRIGATION.
Homesteads may be conveyed, for canals, reservoirs,
or ditches, for irrigational purposes, 9.
INTERLOCUTORY PROCEEDINGS, 58.
INSANE.
Claimants who become, 78.
INDIAN HOMESTEADS, 79.
JUDICIAL COMPULSION.
Excuses absence, 25.
JURISDICTION.
Of Register and Receiver, 74.
KIOWA, COMANCHE AND APACHE TREATY, 5.
Act of Congress opening to settlement, 6 to 8; Com­
mutation of, 9, 27.
KICK A POO LANDS, 100.
KANSAS TOWNSTTE ACT, 108.
LEAVE OF ABSENCE.
Reference to, 36; Statutory provisions and rules gov­
erning, 38.
160

MINING LAWS.
Statutory provisions, 114; Rules and regulations.
123; Statutory provisions in Kiowa and Comanche
Act, 7.
MINERAL AFFIDAVIT, 10.
MINOR HEIRS.
Of soldiers, 11, 25: Residence on homestead not re­
quired, 24; Inherit homestead claim when, 26.
MARRIED WOMEN.
May make homestead entry when, 11.
NATURALIZATION AND CITIZENSHIP, 80.
NON-MINERAL AFFIDAVIT, 10, 97.
NOTICE OP CONTEST, 54.
NON-RESIDENTS.
Service of notice upon, 55, 57.
NEUTRAL STRIP.
Rights of settlers on, 7.
NORMAL SCHOOLS.
Land reserved for, 7.
ORGANIC ACT, 94 to 97.
PROBATE JUDGES.
Homestead affidavit before, 11; Jurisdiction in townsite matters, 106, 107, 108.
PAWNEE LANDS, 99.
PAYNE COUNTY.
Lines of changed, 100.
PREFERENCE RIGHT, 53.
Greer County lands, 103.
POTTAWATOMIE LANDS.
Act of Congress opening, 97.
PERSONAL SERVICE.
In contest cases, 58.
PUBLIC LAND SURVEYS, 81 to 94.
PUBLICATION SERVICE, 55, 57.
PUBLIC LAND STRIP, 94.
PROTESTS, 52.
PUBLIC BUILDINGS, 7.
PUBLIC HIGHWAYS, 96.
POWER OF ATTORNEY.
By soldiers, to file a declaratory statement, 31 to 33.
161

PUBLICATION NOTICE.

Under final proofs.

(See 52 to 59.)

RIGHTS OF SOLDIERS.
Kiowa and Comanche Act, 7; General discussion of
rights, 27 to 35.

RAILROADS.
Right of way, may convey homestead for, 9; Or­
ganic Act, provisions relative to, 94.
RESIDENCE.
On Kiowa and Comanche lands before commutation
allowed, 6; Under general commutation law, 9; When
claim initiated by settlement must be established
within reasonable time, 14, 21: When initiated by
entry within six months from date thereof, 21. 22;
Rule applicable to soldiers, 27 to 34; What consti­
tutes residence, general discussion of, 24 to 32.

RELINQUISHMENT, 35 to 38.
Form for, 36.
RULES OP PRACTICE, 52 to 74.
REHEARINGS, 58.
Motions for, 70, 74.
REPORTS AND OPINIONS,
67.
RIGHT OP WAY.
For railroads, canals, reservoirs, or ditches for irri­
gation or drainage across homestead, 9.
SOLDIERS AND SAILORS.
Rights of generally, 72 to 34; Kiowa and Comanche
Lands, 6; Service for 90 days entitles one to make
homestead entry, without regard to age or citizen­
ship, 11; provisions of Organic Act, 95.
SCHOOL LANDS.
Reservation under Kiowa and Comanche Act, 7; pro­
visions of Organic Act, 94; Statutory provisions, 104.
SECOND ENTRIES.
General discussion of, 41 to 47; Under Kiowa and
Comanche Act, 7, 41, 42; Under Act of June 5, 1900,
43; Under Act of March 2, 1889, 44; Under Act of De­
cember 29, 1894, 45; Under Departmental Decision, 46.
SCHOOL.
May convey homestead for school purposes, 9.
SETTLEMENT.
Homestead initiated by, 10; General discussion of, 13
to 21; Definition of, 15; What constitutes under old
rule, 15 to 20; Under Oklahoma rule, 20; On town
lots, 113.
162

SAC AND FOX LAND.
Commutation of, 27: Act opening to settlement, 91.
SOONERISM, 39, 40, 94.
THREATS AND VIOLENCE, 25.
TIMBER, NECESSARY, 81.

TONKAWA LANDS, 99.

TOWNSITES, 10.5 to 114.
U. S. COURT COMMISSIONER.
Appointment and authority, 11, 12.
UNIVERSITIES.

Lands reserved for universities, agricultural
leges, normal schools, and public buildings, 7.

col­

U. S. REVISED STATUTES.
Sections 2289, 2290, 8: Section 2288, 9: Section 2294, 11;
Section 2291, 26: Section 2292, 26: Section 2301, 9, 26;
Section 2304, 27; Sections 2305, 2306, 2307, 2308, 2309, 28.
UNMARRIED WOMEN.
Act June 6, 1900, 81.
WIDOW.
Of deceased homestead entryman, not required to re­
side on the land, 25; Inherit claims from husband, 26.
WOMEN, UNMARRIED.
Act of June 6, 1900, 81.

163