under the enlarged homestead act, but not under the stock-raising homestead act. 52-621 The intervention of an adverse claim in the form of an application to make entry by a qualified applicant prior to the filing of an application to reinstate a properly canceled homestead entry where residence was not of the character contemplated by section 2291, Revised Statutes, as amended by the act of June 6, 1912 (37 Stat. 123), prevents the application of the rule announced in Slette v. Hill (47 L.D. 108). 53-75 The allowance of a stock-raising homestead entry on land previously classified as mineral in character does not amount to an adjudication that the land is now nonmineral. 53-264 Section 4 of the stock-raising homestead act differs from section 5 of that act in that under the former section the general provisions of the homestead law as to residence either on the original or on the additional entry must be fulfilled, while under the latter section the requirements as to improvements only must be met. 53-274 Instructions of Apr. 3, 1931, stockraising homesteads within petroleum reserves under act of Feb. 28, 1931 (46 Stat. 1454). Cirs. Nos. 523 (51 L.D. 1, 2); 541 (unpublished); 913 (50 L.D. 261); 983 (51 L.D. 65); 1220 (53 I.D. 127), superseded. (Cir. No. 1244) 53-346 An oath in support of a stock-raising homestead application alleging that no part of the land applied for is claimed, occupied or being worked under the mining laws, or occupied or appropriated under any other public land law except by the claimant himself, establishes a prima facie case that the land was unoccupied and unappropriated, and where the entry was regularly allowed the burden of proof is upon a mineral claimant asserting a right under the mining laws to establish by extrinsic evidence the illegality of the entry. 53-382 In a contest by a mining claimant against a regularly allowed stock-raising homestead entry, illegality of the entry is not proved by merely establishing that the land is mineral in character, but it must be shown that there existed either a prior perfected location under the mining law, or a mining location, though not perfected by discovery, yet in the actual possession of the locator who is diligently engaged in the search for mineral. 53-382 Instructions of June 6, 1931, applications by Indians to make stock-raising homestead entries. (Cir. No. 1253). 53-392 A stock-raising homestead entry is not invalid though embracing land claimed under mining locations where the evidence shows that the locations were made primarily to protect a developed water hole, and where the evidence is insufficient to establish that the locations were prior and valid, and where the spring or water hole is held under a claim of private right and is incapable of providing sufficient water for general use for watering purposes. 53-578 Where land containing a water hole was designated as of the character subject to entry under the stock-raising homestead law and no charge was preferred that the land or any subdivision thereof was valuable as a public water hole, the designation will not be vacated unless it is shown that it was erroneously induced by fraudulent statements of the entryman. 53-578 A requested exclusion of a mining claim from a stock-raising homestead entry is an admission by the entryman of its present existence, but not necessarily of its validity. 54-47 Allowance of an entry under the stockraising homestead act of lands designated under that act and free from record appropriation and contest, after compliance with the law and regulations, is not erroneous because of the existence of matters which would have rendered it invalid, but which did not appear. 54-47 An application for a homestead entry which excludes an alleged mining claim from a legal subdivision and requests a segregation survey without disclosing a basis for the segregation is merely an application for indefinite fractions of the subdivision, incapable of definition in areal extent and location, and is not subject to allow54-47 Applications and proofs of a homestead entryman are ex parte, not adversary, and if he misrepresents the facts which it is ance. When a homestead entry is allowed upon the faith of an affidavit by the homesteader that the land is not occupied or appropriated under the mining laws, the burden of proof will be upon one claiming adversely under an alleged mining location to show that the entry was not rightfully allowed. 54-47 If a mineral claimant brings a contest against a regularly allowed homestead entry and uses an official mineral survey of his claim as evidence of the existence of conflict, the survey is not conclusive as to the location of his claim and the entryman has the right to impeach it in the Land Department, if not made in accordance with the law and regulations or if it is fraudulent or erroneous. 54-48 only the question of the extent of conflict to be litigated. 54-48 Where the plat and field notes of a mineral survey, of which the Land Department takes official notice, prima facie establishes a conflict between a mining claim and a homestead entry, such evidence will be regarded as conclusive unless successfully impeached. 54-48 Relinquishment of a homestead entry as to part of a forty-acre legal subdivision, on the ground that it is mineral in character, will not be accepted unless the mineral character of the tract sought to be relinquished is shown to have been established in accordance with the requirements of the General Mining Regulations. 54-228 In the absence of other objection, a motion to dismiss the contest of a homestead entry is properly denied. If, prior to the time the contest has become subject to a judgment of abatement, personal service upon the contestee has been secured and evidence thereof supplied. 54-231 A withdrawal of public lands for the purpose of reserving them for use as federally regulated grazing lands is a withdrawal for a public purpose, and is analogous to a withdrawal under section 10 of the act of Dec. 29, 1916 (39 Stat. 862), to provide for stock-raising homesteads. 54-353 One who perfects a forest homestead under the act of June 11, 1906 (34 Stat. 233) for less than the allowed acreage, is not thereby disqualified from later making a stock-raising homestead entry of additional lands to the aggregate permitted, and such later entry should be considered and treated as an original and not an additional entry, and accordingly not subject to the conditions and limitations of an additional entry. 54-463 The act of Mar. 4, 1923 (42 Stat. 1445) is not exclusive in operation and has relation to additional entries outside of national forests when the original entry is of forest lands of the character subject to designation under the enlarged or stock-raising homestead act; and said act does not prohibit the making of original stock-raising homestead entries based upon the additional homestead rights provided for in section 6 of the act of Mar. 2, 1889 (25 Stat. 854) and the act of Apr. 28, 1904 (33 Stat. 527). 54-463 The clause in the Executive order of Nov. 26, 1934, which renders the publicland withdrawal provided for therein subject to "valid existing rights", includes the case of one whose application to make a stock-raising homestead entry was subsequent to the date of the order, but who, before the order became effective, purchased the improvements and relinquishment of a prior entryman, established residence on the land with his family, and has since maintained residence thereon. 55-306 The filing of an application, prior to the order of withdrawal of Nov. 26, 1934 (E.O. No. 6910), to amend an entry on account of mistake in the numbers of the tract entered, constitutes a "valid existing right" excepted from the order. 55-308 Where under former existing policy, stock-raising entry was allowed for 640 acres and the entryman has made his home and a living in the stock-raising business on the land settled upon, amendment of the entry by eliminating 80 acres on one side and including 80 acres on another side of land of the same character, based on mistake in description and in order to conform to actual settlement, will not be denied because of revocation of the previous designation of the lands as of stock-raising character on the ground that the 640 acres are inadequate to provide a living for a family. 55-308 The contest of a homestead entry abates where there has been no service of notice on the contestee within thirty days from date of issuance of the contest notice. 55-315 Where one who has perfected a homestead entry under section 6 of the enlarged homestead act applies to make an additional entry under section 5 of the stockraising act, he is only required to show that at the time of filing application he owned and resided in good faith upon the land embraced in his original entry. Case of Sanford H. Wallis (53 I.D. 274), cited and applied. Par. 19 of Cir. No. 523 (51 L.D. 1) modified. 55-341 The making and perfecting of a forest homestead entry under the act of June 11, 1906 (34 Stat. 233), for less than the maximum acreage permitted does not exhaust the homestead right, and, accordingly, one who has made acceptable final proof on such an entry and sold and disposed of the land is qualified to make original stock-raising entry of such quantity of land, designated as stock-raising, outside the national forests, as, when added to the forest homestead, will not exceed 640 acres; and this regardless of whether the two tracts are more than 20 miles apart. 55-353 A mere application to make a stockraising homestead works no severance of the mineral from the surface estate, and upon the rejection of the application an intervening mining claim attaches to the surface as well as to the minerals. 55-605 The rule that an application to make entry of land subject thereto by a qualified applicant is equivalent to an entry so far as the applicant is concerned, and while pending reserves the land from other disposition, cannot be invoked by a subsequent applicant to defeat a claim initiated before the prior application was rejected, as the rule is but an application of the doctrine of relation, which cannot be invoked by one not in privity with the first applicant. 55-605 Where in a contest brought by a mineral claimant against two stock-raising entries based only upon priority of right, the evidence fails to show the character of any mineralized vein, on what claim or claims the mineral was found, or with what entry the mining claims are in conflict, the evidence is insufficient to warrant cancellation of the entries and warrants dismissal of the contest. 56-22 Successful mineral contestant cannot exercise a preference right of entry under the stock-raising homestead law and at the same time assert that he has a right to the land by virtue of prior mining locations. Upon the filing of his application to make stock-raising homestead entry, such filing will be held to have the legal effect of an abandonment of his asserted mining claims. 56-23 Where an adverse claimant pursuant to departmental decision relinquished a subdivision of his stock-raising entry embracing the claim in controversy, the refusal of the Department to accept the relinquish ment does not preclude the adverse claimant from asserting rights as a relocator of the claim under the mining law. 56-35 Where a person filed his homestead application prior to Jan. 1, 1935, for land which was included in a petition for stockdriveway withdrawal and the homestead application was not allowed until after Jan. 1, 1935, when the petition for withdrawal was finally denied, the entryman is not entitled to invoke the benefits of the act of Aug. 27, 1935 (45 Stat. 909). person filed a homestead application prior to Jan. 1, 1935, which was not allowed until after that date but could have been allowed when filled, he is entitled to make final proof under the act of Aug. 27, 1935, having the other necessary qualifications. If a 56-134 Settler rights to make entry not prejudiced by misdescription of tracts, relinquishments by entrymen filing in the wrong land district, or erroneous cancellations by the General Land Office due to confusion and uncertainty as to the boundary between Colorado and New Mexico. Where claimant has a valid settlement claim and a right to reinstatement and amendment of his entry prior to withdrawal of the land, such rights are not barred for the reason that he filed an application for second entry subsequent to a withdrawal of the land, as there was no occasion for an application for second entry. 56-223 Where rights of claimant were initiated by his settlement and such settlement was maintained until the withdrawal of Nov. 26, 1934, the claimant has a valid existing right excepted from the force of the withdrawal and the subsequent establishment of a grazing district embracing the land, and the claimant, though somewhat tardy in asserting his rights, in the absence of an adverse claim, may be allowed to change his application for the land settled upon and other land under the stock-raising homestead law, which is unallowable, to one under section 2289, Revised Statutes, for the land actually settled upon. 56-223 The rights initiated by a stock-raising homestead application for undesignated lands, being only future rights contingent in part upon designation are not present rights within the meaning of the term "existing valid rights" in the saving clause of the withdrawal order of Nov. 26, 1934, and cannot prevent such withdrawal from attaching to the lands sought if they be undesignated at the date of the order. 56-282 A stock-raising homestead application to enter undesignated lands initiates in the applicant no present rights against the Government but only a prospect of future rights of uncertain existence and remains incomplete until susceptible of allowance. 56-295 Both the terms of the stock-raising homestead act and its legislative history manifest the intent of the Congress to prevent accrual of any present right or equity against the Government before the happening of the specified contingency of designation and to warn applicants against acts of settlement in advance thereof. 56-295 Evidence held sufficient to show that homestead entryman at the date of his application to make entry was the proprietor of more than 160 acres of land and, therefore, not qualified to make entry. 56-320 Evidence held sufficient to show that homestead entryman did not maintain a home on his entry to the exclusion of a home elsewhere. An entryman is not entitled under the act of Aug. 22, 1914 (38 Stat. 704), to a change of residence requirements from seven months each year for three years to five months each year for five years, where subsequent to his application for such change he resided during the statutory life of the entry on adjoining land having about the same altitude and climatic conditions. 56-320 Failure of a lessee of a stock-raising homestead entry, who obtained his lease after the issuance of final certificate and recorded the same, to file notice of his lease in accordance with Rule 98 of Practice does not by reason of such failure cause him to lose his rights in the land by the acceptance of a relinquishment by the entryman and cancellation of the entry, as the entryman had no right to relinquish the entry without the assent of the lessee. 56-343 Holder of recorded lease of a stockraising homestead entry, if he files notice of his lease in the local office, is entitled A stock-raising homestead application filed prior to the withdrawal order of Nov. 26, 1934, for lands on that date remaining undesignated cannot prevent said withdrawal from attaching to the lands sought, such application being incomplete and having initiated only rights in futuro contingent upon events not certain to occur, not rights in esse within the meaning of the term "existing valid rights" in the saving clause of the withdrawal order. 56-347 A stock-raising homestead application to enter undesignated lands initiates in the applicant no present rights but only a prospect of future rights of uncertain existence and remains incomplete until susceptible of allowance. 56-347 Acts of settlement in advance of designation are at the peril of the applicant and create as against the owner, the Government, no rights or equities susceptible of maturing into stock-raising homesteads. 56-347 Both the terms of the Stock-Raising Homestead Act (act of Dec. 29, 1916, as amended (39 Stat. 862)) and its legislative history show the intent of Congress to condition accrual of all rights and equities upon specified contingencies in order to protect both applicant and Government. 56-347 Designation of lands as stock raising is entirely discretionary with the Secretary of the Interior, who in forming his judgment considers cumulative findings by governmental, scientific services resulting from continued scientific examination and study of the lands. Neither designation nor special investigation of a particular tract is a matter of right in an applicant. 56-347 The Taylor Grazing Act in effect repeals the stock-raising homestead law but, in abandoning old land policies for new, does no prejudice to the rights of any stockraising homestead applicant, no citizen having any vested interest in a statute or a governmental policy. 56-347 Under sections 1, 2, and 8 of the act, an application for original entry is susceptible of allowance only upon the happening of both of two contingencies, designation of the land and nonuser of the preferential right accorded to applicants for additional entry, and only upon such Occurrence initiates in the applicant rights in esse, viz, 1. an immediate, present, procedural right of priority as against third parties; and 2. an immediate, present, substantive right of occupancy of the land as against the Government. 56-347 The Department is without jurisdiction to designate as of stock-raising character land withdrawn from entry by competent authority. A single failure to observe the rule neither changes nor vitiates it. 56-348 In determining the acreage owned by an owner of an undivided interest in common for the purpose of ascertaining whether he was disqualified to make homestead entry because of his ownership of more than 160 acres in violation of the act of Mar. 3, 1891 (26 Stat. 1095, 1098, Rev. Stat. sec. 2289, 43 U.S.C. sec. 161), he should be credited with the number of acres proportionate to his undivided interest since it will be presumed that upon partition he would be entitled to that number of acres. 57-169 Neither the entryman's good faith nor the fact that the Department might have been aware of his other landholdings at the time he made his homestead entry are material on the issue whether he was disqualified by virtue of ownership of more than 160 acres of land in violation of the act of Mar. 3, 1891 (26 Stat. 1095, 1098, Rev. Stat. 2289, 43 U.S.C. 161). 57-169 Where a homestead entryman was legally disqualified from acquiring any right under the homestead law, he could not, upon removal of his disqualifications, acquire an interest in lands which had, in the interim, been withdrawn from entry by a withdrawal order. 57-169 Where an entryman, at the time of making a second stock-raising homestead entry, is disqualified by ownership of more than |