Sec. 690. North Carolina. (See Vol. IV § 619.) Code, § 1249. has been amended so as to read as follows: "Every power of attorney, wherever made or concerning whatsoever matter, may on acknowledgment or proof of the same before any competent official, be registered in the county wherein the property or estate which it concerns is situate, if such power of attorney relate to the conveyance thereof; if it does not relate to the conveyance of any estate or property then in the county in which the attorney resides or the business is to be transacted." Laws 1899, ch. 235, § 15.

PUBLIC LANDS.

EPITOME OF CASES.

Sec. 691. Indians and public lands. The grant of lands by Act of Congress, May 28, 1830, to the Cherokee Nation providing that "the lands hereby granted shall revert to the United States if the Cherokee Nation become extinct or abandon the same," is held to create a base, qualified, or determinable fee without the right of reversion, but only a possibility of reversion in the United States. Cherokee Strip Live-Stock Ass'n v. Cass Land & C. Co., 138 Mo. 394 (40 S. W. Rep. 107). Conceding that land entered with Sioux halfbreed scrip issued under the act of congress of July 17, 1854 (which is not assignable), becomes the absolute property of the scripee, unaffected by any prior deed contract or act of the scripee, yet as soon as it is located the land is subject to alienation or other disposition by him, and the title may be affected or lost by his subsequent conduct, the same as if it had been acquired in any other way. While the acts of the scripee before the location of the scrip may not be resorted to as original evidence of laches or estoppel by conduct, they may be considered for the purpose of characterizing his subsequent conduct. Coursolle v. Weyerhauser, 69 Minn. 328 (72 N.W. Rep. 697). Where lands are held under a treaty with the Indians (7 Stat. at Large, 320) which stipulates that grantees cannot convey except by consent of the president of the United States, it is held that conveyances executed by such grantees take effect and have priority from the time of the approval thereof by the president, irrespective of the recording laws of

the state where the land is situated; and where the land has been partitioned among the grantees by a proceeding in court a subsequent approval and a deed made by one, of his share as determined in partition, operates as a recognition and approval of the proceedings in partition. Lomax v. Pickering, 165 Ill. 431 (46 N. E. Rep. 238). Under the treaty stipulations between the United States government and the Osage Indians they occupy their reservation under the express sanction and authority of the United States; and as long as the tribal relations continue to exist, and until such time as the government shall, by its own volition, cease control and supervision over such tribe, the fact that the government may have issued a patent to the Indians for lands embraced within their reservation does not take such reservation out of the prohibition contained in the act of Congress of June 4, 1888 (25 Stat. 166), making it a criminal offense to cut timber standing upon any Indian reservation. Labadie v. United States, 6 Okla. 400 (51 Pac. Rep. 666). U. S. Rev. Stat., §§ 2103, 2116, construed and applied-validity of lease of land in Indian Territory by the Cherokee Nation. Cherokee Strip Live-Stock Ass'n v. Cass Land & C. Co.,138 Mo. 394 (40 S.W. Rep. 107). A deed of lands in New York, executed by the Indians in 1600, conferred no title on the grantee. Trustee of Town of Easthampton v. Vail, 151 N. Y. 463 (45 N. E. Rep. 1030). As to the right of an officer to enter upon an Indian reservation to levy an execution upon personal property of one not an Indian residing thereon, see Stiff v. McLaughlin, 19 Mont. 300 (48 Pac. Rep. 282).

Sec. 692. Power of land department-Cancellation of entry or patent. The land department has no power to cancel an entry for fraud or because the lands entered were not subject to entry without giving the entryman notice and a hearing. Delles v. Second Nat. Bank, Wyo. (50 Pac. Rep. 190). The commissioner of the general land office has power, after the issue to an entryman of a final receipt, and before patent, to order an investigation, and, if it be thereupon found that the entry or proof was fraudulent, to cancel the entry. While such power is not unlimited, or to be exercised arbitrarily, and is in some cases, at least, subject.

$ 692

PUBLIC LANDS.

634

to judicial review, as where the opportunity to be heard was not accorded the claimant, still even in such cases the claimant seeking relief in the courts assumes the burden of showiug that he has in fact earned a patent. The act of congress of March 3, 1891, protecting certain innocent purchasers and incumbrancers against cancellations of entries, refers only to entries in force when the act was passed, and not to those which had been previously cancelled. Pfund v. Valley Loan & T. Co., 52 Neb. 473 (72 N. W. Rep. 480).

After a patent has been duly issued by the land department, although its delivery is not shown, an attempted cancellation of it by such department at the request of the patentee claiming that it embraced the wrong land, is void. Miller v. Donahue, 96 Wis. 498 (71 N. W. Rep. 900). The court cites United States v. Schurz, 102 U. S. 378, from which it quotes approvingly as follows: "From the very nature of the functions performed by those officers, and from the fact that a transfer of the title from the United States to another owner follows their favorable action, it must result that, at some stage or other of the proceedings, their authority in the matter ceases. It is equally clear that this period is, at the latest, precisely when the last act in the series essential to the transfer has been performed; or so to speak, in technical language, the legal title has passed from the government, and the power of these officers to deal with it has passed away. The fact that the evidence of this transfer of title remains in the possession of the land officers cannot restore the title to the United States, or defeat that of the grantee, any more than the burning up of a man's title deeds destroys his title. The acts of congress provide for the recording of all patents for land in one office, and in books for that purpose. An officer called the 'recorder' is appointed to make and keep the records. He is required to record every patent before it is issued, and to countersign the instrument to be delivered to the grantee. This, then, is the final record of the transaction, the legally prescribed act which completes what Blackstone calls title by record;' and, when this is done, the grantee is invested with title; * * that when all we have mentioned has been consciously and purposely done by each officer engaged in it, and when these

* **

*

635

EPITOME OF CASES.

§ 692, 693 officers have been acting within the scope of their duties, the legal title to the land passes to the grantee, and with it the right to the possession of the patent. No further authority to consider the patentee's case remains in the land office,-no right to consider whether he ought in equity, or on new information, to have the title or to receive the patent. There remains the duty, simply ministerial, to deliver the patent to

the owner."

Sec. 693. Conclusiveness of decisions of land department. Where two parties are contesting before the United States land department for a tract of government land,and the final decision is had in favor of one of such parties, the successful party may institute an action in the district court for an injunction to have his adversary enjoined from further interfering with his possession of the premises; and in such cause the court may properly award an injunction which prevents the unsuccessful party in the contest proceedings from further occupancy of the disputed premises. McAtee, J., dissenting. Barnes v. Newton, 5 Okla. 428 (48 Pac. Rep. 190; 49 Pac. Rep. 1074). In the officers of the interior department is vested the judgment and discretion of determining, when applications for public lands are presented, whether the lands applied for are public lands, open to settlement, or whether they are Indian lands, or whether, for any other reason, they are not open to settlement; and the determination of this question will not be interfered with by the courts, by injunction, in behalf of a homestead applicant, prior to the time the question has gone beyond the control of the interior department by the disposal of the lands and their becoming the subject of private instead of governmental ownership. Wilbourne v. Baldwin, 5 Okla. 265 (47 Pac. Rep. 1045). Where a proceeding is brought in a court of equity for the purpose of declaring the holder of the legal title to a tract of land entered under the provisions of the homestead law of the United States a trustee for the benefit of one who claims a superior title in equity, the facts as found by the land department will be accepted as conclusive by the court. Calhoun v. Violet, 4 Okla. 321 (47 Pac. Rep. 479). The clerical act of issuing a patent by inadvertence and mistake, cannot be regarded as a decision within

the rule as to the review by courts of the decisions of the land department. Roy v. Duluth & I. R. R. Co., 69 Minn. 547 (72 N. W. Rep. 794).

Sec. 694.

School lands-Statutes construed. Kan. Gen. Stat. 1889, par. 5782, construed and applied-forfeiture of school land purchase-notice to assignee-sufficiency of proof and service. Oberlin Loan, T. & Banking Co. v. Flinn, 58 Kan. 83 (48 Pac. Rep. 560); Knott v. Tade, 58 Kan. 91 (48 Pac. Rep. 561). S. Dak. Laws 1890, ch. 140, construed and applied-cutting and removing timber from school lands as a crime-sufficiency of indictment and proof State v. Dorman, 9 S. Dak. 528 (70 N. W. Rep. 848). Tex. Gen. Laws 1879, p. 25; Gen. Laws 1881, p. 119, construed and applied-sale of school lands-power of commissioner of land department. Rogers v. Concho Cattle Co., 90 Tex. 555 (39 S. W. Rep. 1081). W. Va. Code, ch. 105, as amended by Laws 1893, ch. 24, applied-sale of land for school fund. Yokum v. Snyder, 42 W. Va. 357 (26 S. E. Rep. 181).

Sec. 695. Mining claims-Location and relocation -Marking boundaries. The location of a mining claim is void when its discovery point is placed within an existing valid claim. Watson v. Mayberry, 15 Utah 265 (49 Pac. Rep. 479). Under U. S. Rev. Stat., § 2320, " no location of a mining claim shall be made until a discovery of the vein or lode within the limits of the claim located." Willeford v. Bell, Cal. (49 Pac. Rep. 6). Cal. Stat. 1891, p. 219, which provides for filing by the owner of a mining claim with the county recorder of deeds of the county in which the mine is situated an affidavit describing the labor performed or improvements made by him and their value, when such improvements or labor are required for location or ownership of the mine, within thirty days after the time limited for performing such labor or making such improvements, and that upon failure to do so the mine shall be open to relocation, does not allow of relocation within the thirty days. Harris v. Kellog, 117 Cal. 484 (49 Pac. Rep. 708). Particular evidence held to show a valid location of a mining claim. Adams v. Crawford, 116 Cal. 495 (48 Pac. Rep. 488). Construing