HOMESTEAD ENTRY-ADDITIONAL-ACT OF APRIL 28, 1904.

CHARLES E. MYERS.

Where an application to make homestead entry was pending at the date of the act of April 28, 1904, and prior to allowance of entry thereon the applicant presented a supplemental application to enter additional lands under the provisions of said act, requesting that the two applications be considered together, the fact that entry on the original application was inadvertently allowed without considering the supplemental application, does not warrant rejection of the application for additional entry on the ground that the original entry was allowed subsequently to the passage of the act.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) November 18, 1905. (C. J. G.)

A motion has been filed by Charles E. Myers for review of departmental decision of June 23, 1905 (not reported), sustaining the action of your office in rejecting his application to make homestead entry under the act of April 28, 1904 (33 Stat., 547), for the E.SE. 1, Sec. 23, NE. 1 NE. 1, SW. 1 NE. 1, and W. SE. 4, Sec. 26, T. 35 N., R. 25 W., Valentine, Nebraska.

The records of your office show that on December 21, 1903, Myers made homestead entry for the S. Į NE. † and E. † SE. 1, Sec. 35, T. 35 N., R. 25 W., which he relinquished April 27, 1904, and on the same day applied to make second homestead entry for the E.SE. 1, SE. 1 NE., Sec. 26, and NE. NE. 1, Sec. 35, T. 35 N., R. 25 W. The application was forwarded to your office May 13, 1904.

On July 18, 1904, while his application of April 27, 1904, was pending in your office, Myers applied for the land first described herein, asking that he "be granted a homestead entry upon said land in connection with the land I have applied for on April 27, 1904, which application is now on file, and I ask that the same be made and considered herewith." The following indorsement, under date of August 9, 1904, was made on the back of said application by the local officers:

Charles E. Myers made application for a second homestead entry as stated in his affidavit and on July 18 filed the within as amendment to said homestead application, the land applied for now being vacant, and having recommended his application for a second entry on which the applicant is now residing we would recommend that his application be allowed for the land applied for originally and for the land applied for herein and all be treated as one application under the act of April 28, 1904.

This paper was received in your office August 15, 1904, and October 25, 1904, your office, after stating the reasons given by Myers for relinquishing his entry of December 21, 1903, allowed his application of April 27, 1904, and gave him sixty days from notice in which to make second entry for the land embraced in said application, no reference being made to his application of July 18, 1904, nor the recom

mendation of the local officers. In accordance with these directions Myers, on November 29, 1904, completed his application of April 27, 1904, and made entry for the E.SE. 1, SE. 1 NE. 1, Sec. 26, and NE. NE. 1, Sec. 35, T. 35 N., R. 25 W., accompanying the papers with the following sworn statement dated November 29, 1904:

Comes now the said Charles E. Myers, and, completing his entry said described land by payment fees and commissions therefor, on oath states that he is now and has been residing with his family on said land since about May 5, and commenced making improvements preparatory to establishment of such residence on April 28, 1904; that he does not elect to exhaust his homestead right by entry thereof but asks to be allowed to amend same so as to include the E. } SE. 4. Sec. 23, NE. † NE. 4, and W. SE. 1, Sec. 26, said Tp. 35 N., in accordance with an application heretofore filed by him, and the additional land applied for being the only land contiguous to his homestead as allowed which is subject to homestead entry and not embraced in application of any other person.

April 1, 1905, your office passed upon Myers's application of July 18, 1904, referring to the recommendation of the local officers thereon, and treating said application as one for additional entry under the act of April 28, 1904, supra, and concluded as follows:

The former application having been already considered by this office and the entry allowed of record, as above stated, the application does not come within the provisions of section 2 of the act of April 28, 1904, supra, for the reason that the original entry was made subsequent to the date of said act. The application is, therefore, hereby rejected, subject to the right of appeal.

Upon appeal, departmental decision of June 23, 1905, a review of which is now asked, was rendered, which followed and affirmed the foregoing action of your office without discussing or referring to Myers's application of July 18, 1904, or to his sworn statement of November 29, 1904.

Under the provisions of section 2 of the act of April 28, 1904, supra. known as the Kinkaid Act, and subject to its conditions, "entrymen under the homestead laws. . who own and occupy the lands heretofore entered by them, may . . . . enter other lands contiguous." This, however, is not the provision of the act which Myers in effect invoked. While, prior to said act he had applied to enter 160 acres, which was all that was allowable at the time, yet his application had not been acted upon at the passage of the act nor prior to the time he applied for the benefits of said act in connection with his former application. It was manifest error to thus ignore his application of July 18, 1904, as the applications which he asked to be considered together were both pending at the date your office acted upon his first application, and he was clearly entitled to the provisions of the act of April 28, 1904, which in the meantime had been passed, as the circular instructions issued under said act May 31, 1904 (32 L. D., 670), contains this paragraph:

Under said act no bar is interposed to the making of second homesteads for the full area of 640 acres by parties entitled thereto under existing laws, and

applications therefor will be considered under the instructions of the respective laws under which they are made.

If, therefore, Myers was qualified to make entry of 160 acres under his application of April 27, 1904, as found, he was likewise entitled to the benefits of the act of April 28, 1904, said act having been passed before final action upon said application. It follows, too, that his rights in this respect are not prejudiced by the error in failing to consider and pass upon said rights, which were timely asserted by the filing of his second application of July 18, 1904.

The motion for review is therefore granted, departmental decision of June 23, 1905, is hereby vacated, the decision of your office of April 1, 1905, is reversed, and your office will allow Myers to amend his entry of November 29, 1904, in accordance with his application of July 18, 1904, so as to include in addition to the land embraced in said entry the land described in said application.

TOWNSITE ENTRY-MINERAL LAND-SECTION 16, ACT OF MARCH

3, 1891.

NOME AND SINOOK COMPANY ET AL. 2. TOWNSITE OF NOME (ON REVIEW).

The owners of unpatented mining claims located upon the mineral lands of the United States are entitled to the exclusive and peaceable possession of their claims so long as they continue to comply with the requirements of the law respecting possessory rights, and are not required to apply for patent at any time, or ever, in order to preserve such possessory rights. Locations upon the mineral lands of the United States, lawfully possessed and held under the mining laws at the date of a townsite entry embracing such locations, are within the meaning of the language of section 16 of the act of March 3, 1891, "any valid mining claim or possession held under existing law," and can not be injuriously affected by the allowance of such entry; and the mineral claimant may, upon proper proceedings and proofs as in other cases, obtain patent for his claim notwithstanding the townsite entry or the issuance of patent thereon.

Ir the administration of the public land laws the land department has no authority to determine on their behalf alleged rights of claimants thereunder except where such claimants seek to obtain the legal or paramount title to the lands claimed; and where a claimant seeks to obtain the legal title to a tract of public land the inquiry by the land department is directed to questions affecting his right to have such legal title conveyed to him and not to questions relating to possessory or other rights unrelated to and disconnected with his application for the legal title.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) November 24, 1905. (S. V. P.)

This is a motion by the Nome and Sinook Company and R. T. Lyng for review of departmental decision of August 25, 1905, in the case of

Nome and Sinook Company et al. v. Townsite of Nome (34 L. D., 102). The case arose upon certain protests by said company, Lyng, and others, filed July 2, 1904, against the application of Porter J. Coston, trustee, to make townsite entry to embrace the incorporated town of Nome, Alaska. Entry was allowed upon the application August 5, 1904, at Juneau, Alaska, after the dismissal of the protests by the local officers.

The protests allege, amongst other things, the mineral character of the lands involved in the townsite application, and that protestants are the owners and in possession of valid placer mining claims embracing certain of such mineral lands.

In the decision complained of the Department held, in substance and effect, (1) that section sixteen of the act of March 3, 1891 (26 Stat., 1095, 1101), applies to placer mining claims, as well as to vein or lode claims as previously held (Hulings v. Ward Townsite, 29 L. D. 21), (2) that under the provisions of said section the protestants are fully protected in whatever rights they have acquired under the mining laws, as against claimants under the townsite entry, or patent when issued, and (3) that in the absence of applications for patent by the protestants the Department is without authority to determine any question relating to their rights as against the townsite claimants.

The contentions urged in the motion for review relate chiefly to the last two points of the Department's decision. They are in substance set forth in the following extracts from the motion for review:

Theoretically the issuance of the townsite patent would not affect the rights of these mineral claimants, but in fact, as the Department well knows, such a proceeding would be very disastrous to the mineral claimant in ninety-nine out of every hundred cases. The Department's proposition that it is under no obligation to order a hearing until these mineral claimants apply for patent, is not tenable, because, under the law, mineral claimants are not compelled to apply for a patent at any time, or ever. So long as the mineral claimant complies with the law annually he is entitled to the undisturbed and peaceable possession of and the right to work his property. This right, which is statutory and cannot be altered or amended or revoked by executive action, wili be completely negatived if departmental decision of August 29, 1905, is permitted to stand. ... .

These mineral claimants have, under the statute, the right to the undisturbed, peaceable possession of the claims they have located and worked, so long as they continue annually to comply with the requirements of the law; and for the Department to assume an attitude that will force them to apply for mineral patents, or else lose possession of at least a material part of their property, is to deny them a statutory right. Having complied with the provisions of the statute, of which there has been no denial by the townsite trustee in his application, and having made their locations upon mineral land, of which there has been no denial by the townsite trustee, these protestants are at liberty to make their application for mineral patent whenever they please, or never to make it; and, in the event they choose never to make application for patent, still

they have just as much right to the full and undisturbed enjoyment of their claims as though they were patented. Any decision to the contrary is in the face of the statute; and we respectfully submit that the decision complained of is of such character.

It is undoubtedly true that owners of unpatented mining claims located upon the mineral lands of the United States are entitled to the exclusive and peaceable possession of their claims so long as they continue to comply with the requirements of the law respecting possessory rights, and are not required to apply for patent at any time. or ever, in order to preserve such possessory rights. These propositions are clearly embodied in the mining laws and are well established by judicial authority. Whenever occasion has arisen, they have been recognized by the Department.

It does not follow, however, that the possessory rights of these protestants, if any they have acquired under their mining locations, have been or will be defeated or in anywise interfered with by anything contained in the decision complained of. On the contrary. it is expressly held in that decision that under the provisions of section sixteen of the act of 1891 no title can or will pass by the townsite entry or patent to "any valid mining claim or possession held under existing law." If, therefore, the claims of these protestants are upon mineral lands, and were lawfully possessed and held under the mining laws at the date of the townsite entry, they are clearly within the meaning of the language "any valid mining claim or possession held under existing law," and cannot be injuriously affected by the application of the principles enunciated in the Department's decision. And it was because of these principles that it was further held in that decision that patents might be obtained by the protestants for their claims, should they at any time in the future so desire, upon proper proceedings and proofs as in other cases, notwithstanding the townsite entry, or the issuance of patent thereon.

The further contention that in refusing to order a hearing on behalf of these protestants the Department has assumed an "attitude that will force them to apply for mineral patents, or else lose possession of at least a material part of their property," is equally untenable. In the administration of the public land laws the land department has no authority to determine on their behalf alleged rights of claimants thereunder except where such claimants seek to obtain the legal or paramount title to the lands claimed. And where a claimant. seeks to obtain the legal title to a tract of public land the inquiry by the land department is directed to questions affecting his right to have such legal title conveyed to him and not to questions relating to possessory or other rights unrelated to and disconnected with his application for the legal title. When the protestants here shall apply for patents for their mining claims, should they ever do so, it