but was unable to perfect the entry on account of some unavoidable complication of his personal or business affairs, or on account of an honest mistake as to the character of the land, provided he made a bona fide effort to comply with the homestead law and did not relinquish his entry for a consideration, is entitled to make a second homestead entry; under section 2 of said act any person who has made a homestead entry of a quantity of land containing less than 160 acres, and is still owning and occupying the same, may enter a sufficient quantity of lands contiguous to the lands embraced in his original entry to make up the full amount of 160 acres; under section 6 of the act of March 2, 1889 (25 Stat., 854), any person who has made a homestead entry for less than 160 acres, and has received the receiver's final receipt therefor, is entitled to enter enough additional land, not necessarily contiguous to the original entry, to make 160 acres.

2. A married woman, unless she has been deserted or abandoned by her husband.

3. One not a citizen of the United States, and who has not declared his intention to become such.

4. Anyone under 21 years of age, not the head of a family, unless he served in the Army or Navy of the United States for not less than fourteen days during actual war.

5. Anyone who is the proprietor of more than 160 acres of land in any State or Territory.

6. One who has acquired title to, or is claiming under any of the public land laws, in pursuance of settlement or entries made since August 30, 1890, an amount of land, other than mineral land, which, with the tract now sought to be entered, will exceed in the aggregate 320 acres.

Approved:

F. L. CAMPBELL,

Acting Secretary.

W. A. RICHARDS, Commissioner.

MINING CLAIM-APPROXIMATION-SURVEY.

CHICAGO PLACER MINING CLAIM."

The rule of approximation permitted in entries under the homestead and other public-land laws providing for the disposal of nonmineral lands has no application to locations and entries under the mining laws.

A portion of an irregular legal subdivision is not sufficiently identified to enable the Department to accurately describe the same in a patent by an attempted description thereof in terms of the public-land surveys, and where patent is sought to a placer mining claim embracing a portion of an irregular legal subdivision or lot an official survey of the particular portion claimed will be required.

a Not reported in volume 31.

Acting Secretary Ryan to the Commissioner of the General Land (S. V. P.) Office, September 16, 1902.

(G. F. P.)

of lot 3 in

of NW. 1, Sec. 3, the S.

of S. of

of NW. 1, Sec. 3, the S.

May 7, 1901, J. H. Sarsfield made entry for the Chicago placer mining claim, Leadville, Colorado, for certain lands described in the certificate of entry as "lots 1 and 2 in Sec. 3, the S. Sec. 3, the N. of N. of SE. lot 4 in Sec. 3, the N. of SE. of S. 1 of 14 lot 1 in Sec. 4, and the N. of SE. ‡ of NE. † of Sec. 4, in township 8 south, range 78 west." By the public survey of said sections 3 and 4 (approved March 2, 1883) the quarter sections in which the Chicago claim is situated are represented to be fractional, the lands in the north half of each quarter section being designated as lots, each lot containing more than forty acres, while the lands in the south half of each quarter section are legal subdivisions of forty acres each.

By reason of approved surveys of certain lode and millsite claims, as shown by a diagram prepared and transmitted to your office by the United States Surveyor General, the areas of said lots 1 and 2 of section 3 have been reduced by several acres each. None of the land embraced in the surveys of the lode and millsite claims is included in the entry.

The Chicago claim appears to have been located February 21, 1901. The location embraces the land described in the certificate of entry. According to the public survey and the aforesaid diagram, the claim as located and entered contains an area of 165.03 acres. The area

stated in the certificate of entry and paid for by the entryman is 160

acres.

April 5, 1902, your office, upon examination of the record, required the entryman to eliminate from the Chicago claim the area in excess of 160 acres, either by relinquishment of one of the tracts embraced therein, or by a survey of the claim. A motion for review, in which the entryman asked to be allowed to pay for the excess area under the rule of approximation usually applied to entries under the homestead laws, was dismissed by your office May 20, 1902. The entryman has appealed to the Department.

The rule of approximation under which persons seeking title to non-mineral public lands are permitted to pay for and include in an entry whatever excess there may be in the claims asserted over and above the amount limited by the law under which title is sought, provided such excess is not greater than the deficiency would be should a legal subdivision be excluded from the entry, is a rule of administrative expediency relating to entries under the homestead and other laws which provide for the disposal of lands by legal subdivisions only, and where a literal interpretation of the law would, by reason of irregular areas of legal subdivisions, resulting from una

voidable causes in the public surveys, frequently limit the entryman to less land than he is entitled to enter under the law.

The laws providing for the location, entry and patent of public lands valuable for minerals are materially different from the homestead and other laws which provide for the disposal of non-mineral lands. By the latter laws (excepting the act of May 14, 1898, 30 Stat., 409, under which title may be acquired to unsurveyed lands in the District of Alaska, through soldiers' additional homestead rights, 28 L. D., 149–50) lands are disposed of after the public surveys have been extended over them, and only by the legal subdivisions of such surveys. Under the former, mineral lands may be located, entered and patented either before or after the public surveys have been extended to them, and, excepting as to placer claims, which if upon unsurveyed lands may be located and entered by legal subdivisions, and with respect to which it is provided that in all cases the locations" shall conform as near as practicable with the United States system of public land surveys, and the rectangular subdivisions of such surveys," and that where such claims "cannot be conformed to legal subdivisions, survey and plat shall be made as on unsurveyed lands," it is not required that mineral lands shall be disposed of by legal subdivisions. See Secs. 2320, 2325, 2329, 2330 and 2331 of the Revised Statutes. By section 2330 it is provided that— no location of a placer claim, made after the ninth day of July, eighteen hundred and seventy, shall exceed one hundred and sixty acres for any one person or association of persons.

In the administration of the placer mining law a literal interpretation may be given to the provision limiting the number of acres that may be included in a single location without working injustice to any claimant thereunder. Location and entry may be made according to legal subdivisions when the lands have been surveyed, or if the claim can not be conformed to legal subdivisions, survey and plat are provided for, as in the case of unsurveyed lands. A person seeking title under a placer location which embraces more than 160 acres suffers no loss of any portion of his entry right because required to reduce his claim to the number of acres allowed by law, for the reason that he may have the exact area to which he is entitled under the law described by a survey and plat, showing accurately the boundaries. of his claim.

It follows from what has been said that there is no warrant for the application of the rule of approximation to locations and entries under the mining laws.

There is another objection to the entry not noticed in your office decision. Portions of the lands stated to be embraced in the entry are not described in such manner as to sufficiently identify them. These portions are referred to in the entry certificates as "the S.

of lot 3 in Sec. 3,"" the S. of S. of lot 4 in Sec. 3,"" the S. of S. of lot 1 in Sec. 4," and are parts of irregular-shaped tracts designated as lots by the public survey. It would be impossible from the description given in the entry certificate to identify the lands claimed under the location and entry. This can be done only by a survey of the portions of said lots intended to be embraced in the entry. If the entryman shall elect to retain the lands claimed in said lots 3 and 4 in Sec. 3, and lot 1 in Sec. 4, or any portion or portions thereof, he must have a survey of the same made, so that the portion or portions retained may be properly identified.

No survey will be required as to ten-acre tracts of regular legal subdivisions or of entire lots, but where it is sought to embrace only a portion of such tracts or lots a survey of the same must be furnished as in the case of unsurveyed lands. In no event can the entry be allowed to stand for more than 160 acres of land.

Your office decision is therefore modified to conform to the views herein expressed.

PENDING SCHOOL INDEMNITY SELECTION-APPLICATION COVERING

SAME LAND.

SANTA FE PACIFIC R. R. Co. v. STATE OF CALIFORNIA.

Pending the disposition of a school land indemnity selection, even though erroneously received, no other application including any portion of the land embraced in such selection should be accepted, nor will any rights be considered as initiated by the tender of any such application.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) July 3, 1905. (F. W. C.)

The Santa Fe Pacific Railroad Company has appealed from your Office decision of December 10, 1904, rejecting its application, proffered under the act of June 4, 1897 (30 Stat., 36), to select the SW. of NE. and NE. 1 of SE. 4 of Sec. 26, T. 28 N., R. 6 E., M. D. M., Susanville, California, land district, in lieu of an equal quantity of land relinquished to the United States in the San Francisco Mountains forest reserve, because of certain prior school indemnity selections made of said lands; also its applications to contest the State's selections covering these lands; the latter action being because of the fact that they were made by one H. D. Burroughs, admittedly not as initiating a contest in his own name to be prosecuted in his own interest, but as attorney for and on behalf of the Santa Fe Pacific Railroad Company.

With regard to the State's selection covering these lands, your office decision states that the selection of the SW. of NE. 1 of Sec. 26, was

made on March 12, 1902, and that the selection of the NE.

of SE.

of Sec. 26, was made on February 16, 1904. With regard to the lastmentioned selection, the fact is that the State's selection was made on October 10, 1903. The list filed on that date, including this tract, also embraced other selections, and, upon examination thereof, it was found that certain of the selections were improperly allowed, and the selection of those tracts was canceled, the State subsequently, on February 16, 1904, filing what is termed an amendatory list, embracing all the selections included within the original list, with the exception of those canceled, the selection in each instance being on account of the same basis assigned in the original list.

With regard to the State's selections, that of March 12, 1902, was on account of a part of section 16 lost to the State because the land in place was patented under the swamp land grant. With regard to the selection of October 10, 1903, the selection was claimed on account of a portion of a section 16 which had been previously withdrawn for examination and investigation with a view to its possible inclusion within a forest reserve.

The selections were accepted by the local officers, duly entered of record, and were pending undisposed of at the time of the proffer of the selection by the Santa Fe Pacific Railroad Company, and it was because of the pendency of such selections, and without regard to their validity, that your office and the local officers held that the land covered thereby was not subject to selection under the act of June 4, 1897, supra.

This action is affirmed. Good administration requires that, pending the disposition of a selection, even though erroneously received, no other application including any portion of the land embraced in said selection should be accepted, nor should any rights be considered as initiated by the tender of any such application.

With regard to the affidavits filed as the basis for the contest of the State's selections, your office decision rightly held that the applications presented were insufficient, and the action rejecting the same is also affirmed. The proffered selection of the Santa Fe Pacific Railroad Company will stand rejected.

MOUNT RANIER FOREST RESERVE-YAKIMA INDIAN LANDS-ACT OF DECEMBER 21, 1904.

INSTRUCTIONS.

The authority conferred upon the Secretary of the Interior by the act of December 21, 1904, to sell and dispose of certain lands claimed by the Yakima Indians and adjoining their then-recognized reservation on the west, held to embrace such of said lands as fall within the limits of the Mount Ranier forest reserve.