Responding to this recommendation the Department, on April 11, 1891, addressed a letter to your office, the particular phraseology of which seems to have an important bearing upon the questions at issue, and so much thereof as appears necessary is here transcribed as follows:
The Department is in receipt of your letter of the 8th instant enclosing communication dated the 28th ultimo from W. H. Pettit, U. S. surveyor general for Idaho, with accompanying diagram; also petitions and affidavits from a large number of settlers in certain described townships in Latah, Kootenai and Nez Perces counties, in Idaho. In view of the facts set forth you are hereby authorized to direct the surveyor general to contract for the survey of the tract described in the townships named, etc.
Acting under the authority thus given, Willis H. Pettit, U. S. surveyor general for Idaho, on April 25, 1891, contracted with Oscar Sonnenkalb and John A. Long for the survey of certain of the townships described in the petitions of the citizens. a more particular description of which it is not necessary to insert here. The contract thus made is numbered 130, and was approved by your office on May 18, 1891.
Accompanying your letter of August 25, 1893, your office transmitted to this Department a duplicate of the contract and bond, and detailed account of the cost of the execution of the same, and requested authorization for the payment of the account at the maximum rates of $18, $15 and $12 per mile.
On October 17, 1893, the Department rendered a decision holding that the act of August 30, 1890, 26 Statutes, 389
Only authorized the payment of the maximum rates ($18, $15 and $12) per linear mile for lines passing over lands heavily timbered, mountainous, or covered with dense undergrowth, in the States of Oregon and Washington, as will be seen by an examination of the text of the act. Only the intermediate rates ($13, $11 and $7) could be allowed for the survey of that class and character of the public lands outside of the said States of Oregon and Washington. The maximum rates ($18, $15 and $12) per linear mile under the act of August 30, 1890, could be allowed in other States only where the lines of survey extended over lands heavily timbered, mountainous, or covered with dense undergrowth, and, in addition, combining "exceptional difficulties" in the surveys, and where the work can not be contracted for at the intermediate rates.
It was decided, however, that, "inasmuch as your office was directed and authorized by this Department to award a contract at the rates in question," those rates would be allowed for such townships as were specifically named and described in your office letter of April 8, 1891, by which the matter was first brought to the attention of the Department, but disallowed as to all other townships embraced in the contract. The contractors, Sonnenkalb and Long, are now here asking for a review of the decision first rendered, and for allowance of the maximum rates stipulated in the contract. Accompanying the motion are the affidavits of Oscar Sonnenkalb, one of the contractors, of Willis H. Pettit, the former U. S. surveyor general for Idaho, and of F. J. Mills,
a U. S. deputy surveyor, all to the general effect that the survey of the lands embraced in the contract involved "exceptional difficulties."
Upon reconsideration, after a very careful examination of the record, I am satisfied that departmental decision of October 17, 1893, is erroneous. The representation of the U. S. surveyor general for Idaho to your office, and through your office to this Department, that it was "impossible to contract for surveys in that section of the country at the minimum and intermediate rates allowed by law," furnished ample warrant for the authorization of the contract at the maximum rate, and, in view of the re-examination which I have given the matter, it is absolutely clear to my mind that my predecessor, Mr. Secretary Noble, intended to authorize, and in fact did authorize the contract at that rate.
"In view of the facts set forth," it is said in departmental letter of April 11, 1891, to your office:
You are hereby authorized to direct the surveyor general to contract for the survey of the tracts described in the townships named, at rates of mileage not to exceed the minimum rates for ordinary lands, and not to exceed the maximum rates where the lines of survey shall pass over lands that are mountainous, heavily timbered, or covered with dense undergrowth.
When this letter was written the writer had before him the petitions and affidavits of the settlers describing the townships, and diagrams thereof, and it is too clear for argument that it was conceived and indited with reference to these accompanying documents which alone supplied the basis of the action taken. Manifestly, the evidence upon which the authority was given was found, not in your office letter of April 8, 1891, but in its inclosures, to wit, the communication of the surveyor general for Idaho declaring it to be impossible to make the contract at rates other than the maximum, the diagrams of the townships, and the petitions and affidavits of the settlers.
These diagrams, petitions and affidavits embrace all the lands involved in contract No. 130, and this Department, therefore, must be held to have authorized that contract in its entirety at the rates stipulated therein.
Departmental decision of October 17, 1893, rendered in this matter, is, therefore, hereby revoked, and it is now ordered that rates be allowed according to the terms of the contract, that is to say, $9, $7 and $5 for ordinary lands, and $18, $15 and $12 where the lines of survey pass over lands that are mountainous, heavily timbered, or covered with dense undergrowth.
The unexpended balance of an appropria.
tion, made for the survey of public lands,
can be used in paying for a survey completed
during the fiscal year subsequent to that
for which the appropriation was made, pro-
vided such payment be for the discharge of
liabilities under a contract made during the
year for which such appropriation was made,
even if the work be completed after the ex.
piration of the period specified therefor.... 194
An unexpended balance of an appropria-
tion, made specifically for the service of a
particular fiscal year in the survey of aban-
doned military reservations, can not be used
in payment of a liability under a contract
awarded after the expiration of said year.. 264
Special instructions to a deputy surveyor
lowering the rate of compensation stipulated
in a contract will not make the sureties on
said deputy's bond parties to such modifica-
tion, and a failure therein, in this respect,
would relieve such sureties from liability on
said bond..
Alien.
See Naturalization.
A deed of land embraced in a homestead
entry executed prior to final proof by the
entryman, in anticipation of death and for
the purpose of securing the land to his chil-
dren, will not be treated as an alienation
that will defeat the right of the home.
steader..
The sale of a coal land claim after the
actual execution of the final proof, but prior
to its filing and the payment of the pur-
chase money, does not necessarily warrant
the conclusion that the entry was made for
the use and benefit of another
Amendment.
See Entry, Practice.
Appeal.
See Practice.
Application.
See Contest.
A rule of the local office regulating the
presentation of, adopted to avoid confusion,
is conclusive upon parties taking action
thereunder without protest......
An amendatory, or supplemental appli-
cation to enter, filed under a practice of the
local office that called for such action, will
not be regarded as an abandonment of rights
secured under the original application..... 486
To make entry of public land can not be
allowed if based on preliminary papers exe-
cuted prior to the time when said land is
legally subject to such appropriation...... 482
The acceptance of an application to enter
subject to the preferred right of a successful
contestant does not vest in such entryman
any right as against the contestant, but
protects him against the intervening appli-
cations of other parties.
To enter, filed with an invalid contest, but
not accompanied by the required affidavit as
to the qualifications of the applicant, or a
tender of fees, is not sufficient to reserve the
land as against the subsequent application
of another....
To enter, filed by a contestant, should not
be allowed during the pendency of a second
contest charging the speculative character
of the first
To enter, rejected on account of a reser-
vation for the benefit of certain Indians,
may be allowed in the event that the lands
so applied for are restored to settlement and
entry after due investigation
The preliminary affidavit required in all
entries made since August 30, 1890, can not
be received if made outside of the land dis-
trict in which the land is situated; but in
the absence of any adverse claim, the appli-
cant may file a new affidavit
When a homestead applicant alleges a
prior settlement right as against an entry
of record, a hearing should be ordered to
determine the rights of the parties
To make homestead entry, by a single
woman duly qualified under the homestead
law, and erroneously rejected, may be there-
after allowed on appeal as of the date of the
application, notwithstanding the fact of the
applicant's subsequent marriage.............
An application for, may be allowed where
the appeal is dismissed because taken out
of time, and it is shown that the applicant
was misled, as to the time allowed for appeal,
by the action of the General Land Office.... 41
Rule 85 of practice does not operate as a
limitation on the time within which an ap-
plication for, may be made
The record will not be ordered up where
the appeal is rightfully denied, unless the
facts, as set forth, show that the applicant
is entitled to relief under the supervisory
authority of the Secretary..
On application for, final judgment may be
rendered on the merits of the case without
calling for the record, where the showing
made justifies such action..
Will not be granted where the right of
appeal is lost through the negligence of the
applicant's attorney....................
Cherokee Outlet.
See Town site.
Circulars.
See Tables of, page XIX.
Coal Land.
See Alienation.
An entry allowed in accordance with ex-
isting regulations that did not requre affirm-
ative proof as to the location of the land
with respect to completed railroads, should
not be canceled for the want of such proof.. 382
An applicant for the right to make an
entry of, is not disqualified by his having
been, previously to such application, the
owner and intermediate assignor of a prefer-
ence right to enter other coal lands.
Commutation.
See Entry (sub-title Timber Culture);
Homestead; Oklahoma Lands.
Confirmation.
SECTION 7, ACT OF MARCH 3, 1891.
Is not defeated by fraud on the part of
the entryman and his immediate transferee
where the land is subsequently, and prior to
March 1, 1888, sold to a bona fide purchaser;
nor does the pendency of a contest prevent
such confirmation
Where the record calls for an inquiry as
to the good faith of a transfer, in determin-
ing whether an entry is confirmed, the gov-
ernment is not precluded therefrom by its
own proceedings prior to the passage of said
act in which the status of the transferee
was not involved....
Where a case is returned to the General
Land Office for adjudication under said sec-
tion and an appeal is taken from the Com-
missioner's action therein, the Department
will not order a hearing on an issue involved
in its former consideration of the case...... 299
Page.
An entry erroneously canceled on the re-
port of a special agent without notice, is
confirmed for the benefit of a transferee
thereunder, as against a claim for confirma-
tion set up by a transferee under an inter-
vening entry, allowed while the order can-
celing the first entry was in force.......... 311
The initiation of a contest against an en-
try prior to the passage of said act will not
defeat confirmation under the body of the
section, if the entry is otherwise within the
terms of said section.....
The receipt issued to an Osage claimant
on his first payment is a "final receipt"
that entitles a subsequent purchaser of the
land to the benefit of the confirmatory pro-
visions of said section, if otherwise within
the terms thereof..
A purchaser of land covered by a Sioux
half breed scrip location, made under a power
of attorney that is in effect an assignment of
the scrip, who invokes the confirmatory
provisions of section 7, is charged with
notice that said scrip is not assignable
under the law, and is therefore not a bona
fide purchaser within the terms of said sec-
tion...
A soldier's additional homestead entry
regularly made under a certificate of right,
and power of attorney, exhausts the addi-
tional right of the soldier, and a subse-
quent exercise of such right is not con-
firmed by the proviso...
A pre-emption entry made by a settler
that removes from land of his own to reside
on the public land is confirmed by the pro-
viso, if otherwise within the terms of said
section..
An entry that is susceptible of confirma-
tion under the body of said section, and is
also within the confirmatory provisions of
the proviso to said section should be adju.
dicated under the proviso
Contest.
See Contestant.
GENERALLY.
The sufficiency of an affidavit of, should
not be considered after the hearing without
objection thereto......
The allegations in affidavit of, will not be
held insufficient if the charges therein,
taken together, set forth a state of facts
that warrant cancellation....
The local officers may properly reject an
application to contest an entry if in their
judgment the charge as laid against the
entry does not justify a hearing
An indefinite and general charge that an
entry is made for speculative purposes does
not warrant an order for a hearing...
A changed date (from an earlier to a
later), in a stamped filing mark, on an
application to contest an entry, may be
accepted as establishing the actual priority
of such application as against another,
bearing a stamped filing mark of the later
date, though the latter application bears
the lower number..
The right to proceed against an entry
dates from the filing of the affidavit of, and
such right can not be defeated by a subse-
quent relinquishment..
Failure of the local office to order a hear-
ing on a charge that calls for such action
will not defeat the right of the contestant
as against the subsequent relinquishment
of the entry under attack and the interven-
ing entry of another...
Must be prosecuted with all reasonable
diligence, and where such rule is not ob
served the government may properly regard
the contest as abandoned and proceed ac-
cordingly
No rights are acquired under a second,
in the event that the entry is canceled as
the result of the prior proceedings.....
No rights are acquired under a, filed after
a departmental decision canceling the rec-
ord entry, though the time allowed for filing
a motion for the review of said decision has
not expired when the contest is filed....... 557
The withdrawal of, during its pendency
on appeal before the Department leaves the
issue as between the entryman and the
government
A charge of fraud against an entry can
not be established by evidence showing the
fraudulent acts of a third party in relation
thereto, if the connection of the entryman
therewith is not proved.....
A timber-culture entryman who makes
entry of a tract involved in a pending con.
troversy can not thereafter be heard to
plead the pendency of said contest as an
504
excuse for non-compliance with law .......
DESERT LAND.
Common allegations, in pending applica-
tions of different parties to contest the same
desert entry, may be accepted as corrobora-
tive of the separate affidavits of..
The right of two or more contestants to
unite in a contest against a desert-land en-
try can not be recognized to the exclusion
of intervening contestants.
An allegation, equivalent to a charge of
illegality in that the land was non-desert
at date of entry, in sufficient to warrant a
hearing.
420, 465
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