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such entry the land becomes severed from the mass of public lands, and no subsequent law, proclamation, or sale can be construed to embrace or operate upon it, although no reservation may have been made of it.

Myers v. Croft, 13 Wall. 291; 13 Pet. 498; 4 Wall. 210; 2 Otto, 733;
Letter of Secretary Chandler, Copp's L. L., p. 869.

As between one homestead settler and another, the first in time in the commencement of proceedings for the acquisition of title when the same are regularly followed up, is deemed to be the first in right.

Shepley v. Cowan, 1 Otto, 330; 5 Saw. 605.

§ 107. Rights under Homestead Entry.-Many of the railroad grants, if not all, contain a reservation of all lands sold, reserved, or otherwise disposed of by the United States, and also of all lands to which a pre-emption or homestead claim may have attached. These acts, as we have already seen, have been construed to mean that if at the date of the grant there was a valid settler's claim of record upon the tract, the same was excepted from and did not pass with the grant; and that if the settler's rights were afterwards forfeited or abandoned, the tract reverted to the government and not to the railroad company, and that such land, after forfeiture or abandonment, became again subject to homestead and pre-emption laws.

R. R. Co. v. United States, 2 Otto, 733.

It is true that a different rule is prescribed by the land department in the circular instructions of November 7, 1879 (Copp's L. L., vol. 2, p. 716); but the supreme court is the highest authority we have upon these questions, and their opinions are of course controlling. Acting Secretary Joselyn observed the supreme court rule in his letter of November 6, 1882, in which he holds, that although a pre-emptor settled upon a tract subsequently to the definite location of the railroad opposite the same, and although he failed to file his declaratory statement within the prescribed time, yet the remedy conferred by the third section of the act of April 21, 1876, cures the technical defects in his case, and the settler is entitled to enter the land.

Copp's L. O., Dec. 1882.

When qualified settlers have filed declaratory statements, or made entries within the limits of a railroad grant, before the filing in the local land office, of the final survey or definite location of the line of the road, but after the date of the grant

(and where there has been no legislative or executive withdrawal of the specific tract sought to be entered), the railroad grant, though a grant in præsenti, is subject to pre-emption and homestead entry, and if the claims are regularly followed up the parties are entitled to patents.

Perkins v. C. P. R. R. Co., Copp's L. O., Jan. 1883.

§ 108. Heirs and Devisees.-The heirs or devisees of a deceased homestead claimant can not be held responsible for a failure of a public officer to administer upon the estate, and the statute does not run against the heirs during the time which elapses after the death of the claimant and the date the administrator takes charge of the estate, providing the heirs are without notice of their rights, and the estate is administered upon within seven years from date of entry.

Robinson v. Williams, Copp's L. L., p. 436.

In case of a deceased claimant who had not resided upon or cultivated the land embraced in his entry, the heir or devisee, though not required to reside upon, must cultivate and improve the tract, or the entry may be contested for abandonment. Copp's L. L., p. 459.

A devisee of a homestead claimant is entitled to all the privileges that would descend to the heirs.

Copp's L. L., p. 460.

§ 109. Where settlements, with a view to pre-emption, have been made before the survey of the lands in the field, which are found to have been made on sections 16 and 36, those sections are subject to the pre-emption claims of such settlers.

Bernard v. Ashley, 18 How. 43; R. S. 2275; Sherman v. Buick, 3 Otto, 209; Water and Mining Co. v. Bugbey, 6 Id. 165.

Settlers on lands that have been reserved on account of claims under French, Spanish, or other grants which have been or may hereafter be declared by the supreme court of the United States to be invalid, are entitled to all the rights of pre-emptors after the lands have been released from reservation, in the same manner as if no reservation had existed.

R. S. 2280; Mahoney v. Van Winkle, 33 Cal. 448; Umbrager v. Chaboya, 49 Id. 525; Rutledge v. Murphy, 51 Id. 389.

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§ 110.

§ 122. Act of July 1, 1879.

What Notices should Contain.-All notices of contests and all notices under which a contest may arise must state the ultimate facts upon which the party giving the notice will rely at the hearing; in other words, issues must be joined in such contests before the land offices, as well as before the courts, and the proof must be confined to the allegations, and judgment rendered on questions at issue only.

Schelter v. Off, Copp's L. O., vol. 8, p. 53.

Great latitude is sometimes allowed, but generally the ordinary rules of evidence should be applied in contests before the register and receiver.

Packard v. Jackson, Copp's L. O., Jan. 1883, p. 187.

§ 111. Credit for Residence.-Parties can not, under the law of May 14, 1880, be allowed credit for settlement on land withdrawn for railroad purposes prior to the restoration thereof to market, nor, under the act, can a claimant be credited for any time he lived upon the land while it was covered by an uncanceled prior entry. By the terms of the second section of the act of June 14, 1880, a contestant acquires no right or privilege, nor could another entry of the tract be made until the contested entry had been canceled upon the records of the office when it became subject to entry by the first legal applicant. It is not the contest, but its resultant, the cancellation procured by himself, which confers upon the contestant a preference right of entry. The proviso of the section affects only entries made subsequent to the initiation of the contest. The second section of the act of June 15th is independent in its provisions and purposes. It pro

vides for a specific thing, without reference to the act of May 14, 1880, which would doubtless have been made, were it intended the two should have been construed in pari materia; and the later expression of legislative intent must operate as a repeal or modification of the provisions of an earlier act which conflicts therewith. Therefore, where it appears that the lands embraced in an entry were subject thereto, that there was no other entry on the same, and nothing on record except the contest upon the ground of abandonment, the entryman may purchase the tract, under the second section of the act of June 15, at any time prior to the cancellation of his entry, and thus prevent the right of contestant from attaching to the land.'

Gorham v. Ford, Letter of Secretary Kirkwood to the Commissioner, dated March 12, 1881; Copp's L. O., vol. 8, pp. 6, 92; Copp's L. L., p. 514.

§ 112. Courts seldom, if ever, interfere to control the regular course of proceedings in the land department. In the case of the United States ex rel. McBride v. Carl Schurz, the supreme court of the United States uses the following language: "Congress has enacted a system of laws by which rights to these lands [public lands] may be acquired, and the title of the government conveyed to the citizen, and this court has with a strong hand upheld the doctrines, that so long as the legal title to these lands remained in the United States, and the proceedings for acquiring title were as yet in fieri before this special tribunal created by congress, for deciding the questions which should arise in the course of these proceedings, the court would not interfere to control the exercise of the power thus vested in that tribunal. To that doctrine we still adhere."

Sickels' Mining Laws, p. 616, where the opinion is given entire.

§ 113. An allegation of fraud stating the facts, and imposition of false testimony upon the register and receiver as to the settlement and cultivation, will give a court of equity jurisdiction. Misconstruction of the law by the officers of the department will sometimes authorize the interference of the courts, but it must be clearly manifest, and not alleged upon a possible finding of the facts from the evidence different from that reached by them; and where fraud and misrepresentation are relied upon as grounds of interference by the courts, they should be stated with such fullness and particularity as to show that they must necessarily have affected the action of the officers of the government.

Little v. State of Arkansas, 22 How. 193.

§ 114. Jurisdiction of Courts-General Rule.-The rule seems to be, that in contests for tracts of public land other than mineral land, neither courts of law nor courts of equity have any jurisdiction to interfere with the regular course of proceedings before the land department; but after patent has issued, and the legal title passes from the government, then courts of equity, upon a proper showing, may set aside the proceedings before the land department, and may, when justice demands it, vacate patents, and declare them null and void.

Baldwin v. Starks, 2 Sup. Ct. Rep. 473; Little v. State of Arkansas, 22
How. 193; State v. Bachelder, 1 Wall. 109; Lindsey v. Howes, 2
Black, 554.

The most clear and well-defined opinion as to the object of the creation of the land department of the government, and the powers it possesses in the alienation by patent of portions of the public lands, is that of Justice Field, in the supreme court of the United States, in the case of Steel et al. v. St. Louis Smelting Co. Speaking for the court, he says: "That department [the land department], as we have repeatedly said, was established to supervise the various proceedings whereby a conveyance of the title from the United States to portions of the public domain is obtained, and to see that the requirements of different acts of congress are fully complied with. Necessarily, therefore, it must consider and pass upon the qualifications of the applicant, the acts he has performed to secure the title, the nature of the land, and whether it is of the class which is open to sale. Its judgment upon these matters is that of a special tribunal, and is unassailable except by direct proceedings for its annulment or limitation."

He then cites and quotes from Johnson v. Townsley, 13 Wall. 83; French v. Fyan, 93 U. S. 172; Quinby v. Conlan, 104 Id. 426; and then the learned judge goes on to say: "It need hardly be said that we are here speaking of a patent issued in a case where the land department had jurisdiction to act, the lands forming part of the public domain, and the law having provided for their sale. If they never were the property of the United States, or if no legislation authorized their sale, or if they had been previously disposed of or reserved from sale, the patent would be inoperative to pass the title, and the objection to it could be taken on these grounds at any time and in any form of action. But the validity of a patent from the government can not be assailed collaterally because false and perjured testimony

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