The silver state. [volume] (Winnemucca, Nev.) 1909-1925, 1912-07-16
digest OF JUNE
LAND DECISIONS
Honesteads.

law. 1t grants those persons other
wise qualified who have exhausted
their homestead right by the entry of
less than $50 acres of land under the
homestead law, who have ecrned and
received patent thereon by performing
the required residence and cultivation,
the right to make another homestead
entry OF the area which, added to that
contained in the original and patented
entry, shall not exceed 16O acres. AS
in other cases where the homestead
rihgt is restored, it requires full CON-
pliance with the homestead laws as to
residence and cultivation of the lands
included in the new entry.
The provisions of section of the
act Of March Cd, 1889, apply only to
homestead entries of less than 100
acres of land, and have no reference
whatever to entries made under the
provisions of the so-called "Kinkaid
Act,' allowing entries in certain
territory not to exceed $40 acres.
Section of the enlarged homestead
act makes no provision for allowance
Of an entry under said act as addition
al to former entry upon which proof
has been offered. Neither can a right
to make such additional entry be gain
ed by deferring the maxine of final
proof on an original entry beyond the
fixed, legal statutory period
Desert Lands.
A mere fling of q map and state
ment with the state engineer cannot
of itself create valid and permanent
water right any more than the actual
construction Of canal, but - is the
actual diversion of the water and the
application Of the same to beneficial
use. The fling Of notice fixes pri-
ority of such fling but must be dill
gently followed by construction and
beneficial use. Where, without fling
a notice, unappropriated water is di-
verted through irrigation works and
applied to a beneficial use, the right
Of the appropriation will date from the
construction of his works, and subse-
quent appropriations cannot divest
him of the right so acquired and main
tanned.
Although section 4 of the reclama-
tion act provides for cultivation of
the entry in default of water payments
when due, it is not imperative that
cancellation or forfeiture should be de-
clared. It rests with the sound dis
cretion fthe secretary of the interi-
or as to whether an entryman may
thereafter be permitted to cure such
default by payment of the water
charges if he has continued to comply
with the provisions of the homestead
act.
When an assignee takes desert
land entry by assignment he not only
exhausts his right under the desert
land law precisely the same at if he
made the initial entry, but he also as
sumes the burdens as well as the ben
efits of such entry and is obliged to
comply with the requirements of law
within. the statutory period as fixed by
the date of the entry, not by the date
of the assignment. While his right
under the entry is first initiated by the
assignment, it relates back when so
initiated to the date of the entry. By
assignment, the entry becomes his en-
try and the date thereof is the date
when it was first made.
Practice.
A contest directed against an entry
in which the claimant Is name is erron-
eously given must fail unless he is
shown to have received the notice or
the rule of idem sonans is applicable.
There is nothing in rules 7S and 70
Of the rules of practice that specifical
ly requires a petition for certiorari to
be filed within 20 days or any ether
definite period after notice Of the de-
cision of the commissioner denying a
party the right to appeal from his de-
cision.
Mining.
In determining the meaning of the
word minerals in the administra-
tion Of the United States land laws,
sight must not be lost of the fact that
too liberal Interpretation Of the
word would greatly restrict the lands
open to settlement, as well as cut
down the area and consequent value
Vf the school quarters to the western
states.
Obviously if all lands containing
limestone, silica and clay were to be
elassed as mineral. it would be almost
impossible for homestead ntryman,
or desert land entryman or for the
states to know with any degree of
certainty that the public lands they
might wish to appropriate were open
to them.
A mineral protest filed against a
homestead entry must show by
specific averment that the land in
conflict is mineral in character.
The department will not penalize
claimant by cancelling his mineral en-
try because he acted in the case in
the light of the previous practice that
had grown up in the general land of.
flee, of allowing the application OF
physical segments of an improvement
to individual claims of continuous
group, which practice had been follow
ed ~ applicant.
Paragraphs IL and Is of the co
nd regulations are rules of admins
tYation adopted by the department for
the purpose of allowing persons to
makes protest before the local office. A
default on the part of an applicant
in making strict compliance, due to
advice given by the local officers,
founded upon long established local
practice, will be waived particularly