The silver state. [volume] (Winnemucca, Nev.) 1909-1925, 1912-03-16
DIGEST OF RECENT
LAND DECISIONS

more than 100 acres, to his wife in
order to qualify himself to make
homestead entry is not in violation of
law if it was made in good faith and
not intended as a mere subterfuge for
the purpose of evading the statute, but
such act of itself is a suspicious trans
action and actual good faith must be
ecidenced by such facts as to convince
a reasonable mind that it was not a
mere collusive device. Affirming
Auker VS.. Young 81 L. d. 176.
Residence upon homestead is not
required after the expiration of five
years as prerequisite to patent and
a change Of residence after that period
does not forfeit right already ac
quired. A charge of abandonment
against homestead entry must fail
where the entryman is residing upon
the land when notice of contest is
served.
The heirs of deceased homestead
entryman, who during his lifetime
complete the entry by either residing
upon or cultivating the land for the
full period of five years, if sufficient of
the entry remains for that purpose; or
may commute upon showing of resi-
dence and cultivation for fourteen
months, but cannot commute upon
showing of cultivation alone.
i A contestant cannot be allowed
preference right to make entry of land
within a reclamation project.
The act of Feb. "a, 1909 (35 Stat.
645) was to amend section 1872 Unit
ed States revised statutes and applies
only to cases of mistake in description
at time of entry whereby the entry
mans intent was defeated.
Desert Lands
1t was not contemplated by the act
of Jan. ID, 1897, relating to location
and construction of reservoirs, that
the reservation should be made accord
ing to legal subdivisions or to extend
to any lands not necessary for the
practical use for which the reservation
| is made. Nor does the declarent ac-
quire such right by the approval of
his map of location, that will prevent
!, the secretary of the interior from re-
, forming the reservation at any time
and restoring to settlement and entry
all lands not necessary Ito the full en-
lioyment and use of all rights contem-
plated by the act. Citing Wilson VS..
Parker (32 l.. d. 14s).
The right of repayment does not
. exist when a desert land entry, on the
: proofs presented, is properly allowed
and its subsequent cancellation is due
: to the discovery that through mistake,
not the fault of the government, the
entry in fact covers land not reclaimed
! or intended to be reclaimed.
The presence of trees upon land in
considerable numbers indicates that
the land is non-desert in character.
The commercial value of the trees has
, little, if any. bearing upon the ques-
! tion of classification.
Final Proof.
The statement in final proof to the
effect that all of the irrigible land was
: reclaimed and in permanent CROP
is altogether too indefinite and incom-
plete as to reclamation of the land by
the use of water and raising of crops.
The pre-emption law requires per-
sonal settlement upon and inhabitancy
of the lands and the erection of a
dwelling thereon, and proof within a
specified time of such settlement, in
l habitancy and improvements. Citing
Foltz vs. Soliday (13 l.. d. 663.
Practice.
Failure to appeal may be conclusive
as to the rights of the parties, bat will
not preclude the commissioner of the
general land office from reviewing the
decisions of the local land office.
The remanding of case for a re-
hearing to obtain additional testimony
in order that the ends of justice may
be subserved is matter resting in the
sound discretion of the commissioner
; of the general land office and the ex-
ercise of such discretion will not be
r disturbed unless there is an abuse
8 of it.
5 Objection to the takino of deposi-
: tion should be taken within the ten
days allowed prior to the issuance of
the commission. The fixing of a
date to take deposition, subsequent to
T the date set for the hearing, is not
in itself error.
! The particular time for the taking
{ of dispositions and for hearings, pre-
e liminary, continued, and final rests in
' the sound discretion of the local off.
GERS, and due notice and opportunity
for cross examination and for present
ing testimony in defense being given,
the exercise of such discretion should
not be disturbed unless gross injustice
to the party adversely affected there
$ by appears in fact or as likely to re-
r suit.
Rule 2 of the Rules of Practice was
designed to insure good faith upon the
part of the wouldbe contestants and
} to prevent the fling and prosecution
of speculative contests by those who
are not qualified or do not intend to
a obtain title to the lands under appro-
4 pirate public laws.
f The several provisions of rule
should not be construed with the same
strictness as though required by some
specific provision of the law governing
contests. It's purpose was rather to
e furnish the officers of the government
1 with such information respecting the
( intentions of the contestant as would
4 enable them to determine, in the light
Y thereof. whether the contest should be
allowed to he proceeded with or re-