Rocky Ford enterprise. (Rocky Ford, Colo.) 1887-1950, 1911-05-26
MONTHLY DIGEST.
OF Important Public Land De-
cisions.

+ ++++ = 49, A'++ II
The following important decisions
of interest to the homesteader, have
recently been rendered by the Secre-
tary of the Interior:
If paying crops can be obtained
from land without irrigation, the land
is not desert in character and is thus
not subject to desert land entry. On
the other hand, if it is claimed that
land will not thus produce without ir-
rigation and is upon that claim enter
ed under the Desert Land Law, then
irrigation must be performed in or
der to acquire title.
A withdrawal of lands for reclama-
ton purposes. under the provisions OF
the Reclamation Act prior to allow
ance of entry, and the government in
poses, has the effect of removing
such lands from the class of lands
subject to entry under the homestead
act, and therefore cannot properly be
restored to entry.
Where contest affidavit is filed
AGAINST desert land entry. charging
the non-desert character of said land
because of only partial irrigation and
reclamation thereof, under a prior
homestead entry and water right, it is
necessary to show that the entire ir-
rigable area of the entry has been
reclaimed. An affidavit alleging only
partial reclamation is insufficient to
maintain a charge that the land is
non-desert
The rule of approximation has not
been invariably enforced, and where a
showing is made that the enforcement
- A. ArL :-
unon the entryman and the equities
of the particular case warrant it, the
department has allowed an entry for
more than 100 acres to stand.
Under the liberal provisions of the
Act OF May zoth, 1903 (35 Stat. 467),
actual residence means presence on
the land as home, unless absence is
constrained by such force as deprives
the claimant of voluntary control of
himself. Actual" in this statute must
be construed as real" as opposed to
constructive or notional.
Where land is selected under pro-
visions of Act of January 18th, 1897,
$50 stat. 500. and contest affdavits
are filed against such selection. upon
the ground that the land was oceu-
pied. such affidavits must allege prior
right in the land in contestant and
must also disclose the names Of al
legged occupants at the time of selec-
t:cn. The selection of occupied land
is not a fraud against the government
per Sc.
Where an application to file under
the timber and stone act is pending
in good faith at the time of the issue
of an order Withdrawing said land for
forest purposes. such pending entry is
lawful filing existing at the date OF
withdrawal and excepted from the
force and effect thereof. Such entry
will stand unless otherwise objection
able. Citing NJ. Edith Curtis (33 L.
D., 26s); Joseph w. White Ubid.,
sSs( and Hattie E. Bradley (3l L. D.,
1911.
Where it is alleged in a contest that
one party originally obtained a relin-
quishment from the other party by
fraud. and such charge was made be-
fore the local Office, and the entryman
from whom REIMBURSEMENT was OBJ.
tanned appears ready for trial. al
practice, the local officers should, of
their own motion, take steps to Sc
cure a reinstatement of the original
entry and of the contest and should
fix date for hearing the same. In
cases. as above. the Department will
consider the case upon certiorari
An order of the General Land Or
ficc, directing that hearing be had
to determine the respective rights OF
the parties claiming the same tract of
land is not appealablc, except where
such order involves matter which the
Land Department cannot inquire in
to. or is for any reason contrary to
law or the settled rulings of the De-
partment. Citing P. Walenbcrg. ct al,
(so L. D., 3o4).
An application to amend an entry
is always addressed to the equitable
powers Of the Land Department. and
is not granted as of course. especially
not. as against intervening rights.