evidence, but rested their case upon the proofs filed in support of their application to purchase and the cross-examination of the witness introduced by the protestant.

In his protest Lehmer asserts no right, or claim of right, in himself to any of the lands embraced in the application to purchase. He does not deny that the lands are chiefly valuable for coal and in other respects subject to sale under the coal land laws. His charges are, in substance and effect, (1) that no preference right of entry was acquired by any of the parties from whom the applicants obtained deeds of release and quitclaim to themselves of the lands covered by the declaratory statements filed by said parties, respectively, because none of them ever opened and improved any coal mine or mines on the lands; wherefore the declaratory statements were illegal and of no effect, and consequently no rights were conveyed by such deeds, (2) that the applicants to purchase had not themselves, either collectively or individually, prior to the time of filing their application, or at any time, opened and improved any coal mine upon any of the lands applied for other than the SE. 4 of the SW. and the SE. of the NE. of Sec. 19, T. 5 S., R. 23 E., and (3) that the applicants to purchase had not, either as an association or as individuals, expended the sum of $5,000 in working and improving any mine or mines of coal on any of the lands applied for.

It is not denied that the decision correctly represents the matters set forth in the proofs and papers submitted with the application to purchase, the proceedings had with respect to the prior coal declaratory statements, and the charges contained in Lehmer's protest.

The Department held (1) that the prior coal declarants having failed to appear as required by the notice given them were thereafter out of the case, and, the record being thus cleared of all claims to the lands other than that asserted by the associated applicants to purchase, it could make no material difference whether the coal declaratory statements were valid or not; (2) that it was not essential to the validity of the application to purchase that the associated applicants should have opened and improved a mine or mines of coal on the several tracts applied for, it appearing from the proofs that a coal mine had been opened and improved on one of said tracts; and (3) that on the question of the amount expended in working and improving such coal mine the testimony at the hearing did not weaken but tended to strengthen the showing made by the application and proofs.

The main contention in the motion for review is that inasmuch as the associated applicants to purchase had themselves filed no declaratory statement for the lands applied for, if the declaratory statements by the prior claimants from whom deeds of release and quitclaim had been obtained were invalid, a matter which upon the record was held to be immaterial, said applicants had no preference right under any declaratory statement, and for that reason could not enter more

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than 320 acres of coal lands: wherefore the Department erred in sustaining the application in this case.

Section 2347 of the Revised Statutes provides that:

Every person above the age of twenty-one years, who is a citizen of the United States, or who has declared his intention to become such, or any association of persons severally qualified as above, shall, upon application to the register of the proper land office, have the right to enter, by legal subdivisions, any quantity of vacant coal lands of the United States not otherwise appropriated or reserved by competent authority, not exceeding one hundred and sixty acres to each individual person, or three hundred and twenty acres to such association, upon payment to the receiver of not less than ten dollars per acre for such lands, where the same shall be situated more than fifteen miles from any completed railroad, and not less than twenty dollars per acre for such lands as shall be within fifteen miles of such road.

By section 2348 it is provided that:

Any person or association of persons severally qualified, as above provided, who have opened and improved, or shall hereafter open and improve, any coal mine or mines upon the public lands, and shall be in actual possession of the same. shall be entitled to a preference right of entry, under the preceding section, of the mines so opened and improved: Provided, That when any association of not less than four persons, severally qualified as above provided, shall have expended not less than five thousand dollars in working, and improving any such mine or mines, such association may enter not exceeding six hundred and forty acres, including such mining improvements.

It is further provided by section 2349 that all claims under the preceding section (2348) must be presented to the register of the proper land district within sixty days after the date of actual possession and the commencement of improvements on the land, by the filing of a declaratory statement therefor, and by section 2350, that all persons claiming under section 2348 shall prove their respective rights and pay for the lands filed upon within one year from the time prescribed for filing their claims, and that failure to do so shall render the lands subject to entry by any other qualified appli

cant.

It is argued that these sections of the statute furnish no authority for the entry, by an association of four persons, of more than three hundred and twenty acres of coal lands, notwithstanding the expenditure by or on behalf of the association of the full amount required by section 2348 in working and improving a mine or mines of coal on the lands, unless the association shall have first filed a declaratory statement under section 2349 for the lands sought to be entered, or shall have acquired rights under declaratory statements filed by others for the lands; and this, even though there be no conflicting claim to the lands at the time the application to enter and the proofs to support the same are filed. In other words, that before an association of four persons may lawfully enter six hundred acres of coal lands, the amount involved in this case, such association must

show a right of entry under one or several declaratory statements under section 2349.

No authority is cited to support the contention, and the Department knows of none; nor is there anything in the statute to warrant the construction contended for. The provisions that bear upon the question are very simple and present no matters of intricate or doubtful solution. The persistency with which the contention is urged, both in the motion for review and in the brief of counsel accompanying it, is difficult to understand except upon the theory of a misapprehension of the office or function of a coal declaratory statement.

The preference right of entry provided for in section 2348 is not, nor indeed is any right of entry, created, or initiated, by the filing of a declaratory statement under section 2349. Such preference right arises only where a person or association of persons, severally qualified to enter under section 2347, have opened and improved a mine or mines of coal upon the public lands, and are in actual possession of the same. The object and purpose of the declaratory statement are to give notice of, and to preserve for the period specified in section 2350, a preference right of entry already acquired. In other words, the office of a declaratory statement is to preserve the right, not to create it. (McKibben v. Gable, 34 L. D., 178.)

The declaratory statement is useful and has a purpose to serve only where time is desired within which to make payment for the lands, as to which a preference right of entry exists, and to complete the entry proceedings. In such a In such a case the declaratory statement gives notice of the right and operates to preserve it for the period specified in section 2350. It has no other function under the statute.

Such being the only purpose of the statute in providing for the filing of a declaratory statement it must be apparent that where there is no such purpose to serve, no declaratory statement is required. What would be the reason or sense of requiring a declaratory statement in a case where its filing would be but a vain thing?

It can make no difference whether the application to enter be by an individual person for one hundred and sixty acres, or by an association of persons for three hundred and twenty acres; or that the application be for six hundred and forty acres by an association of not less than four persons who have expended $5,000 or over in working and improving a coal mine upon the lands. The principle is the same in all cases. If the privilege of postponing entry in the manner provided by sections 2349 and 2350, after a preference right of entry shall have been acquired under section 2348, be not desired by the claimants, the filing of a declaratory statement before application or entry is not necessary and is not required. And, in such a case, even were the claimants to fail to make application to enter and to pay for the lands within the sixty days allowed by section

2349 for filing the declaratory statement, neither their failure in this respect nor their failure to file a declaratory statement would operate to forfeit their right to purchase and enter the lands except in favor of some other qualified applicant. Their preference right of entry would be gone, but the forfeiture provided by section 2350, upon failure to file a proper declaratory statement, or to pay for the lands within the required period, would operate only to render the lands subject to entry by another qualified applicant. In the absence of any other qualified applicant there would be no forfeiture because there would be no one in whose favor the forfeiture could operate; and there is nothing in the statute that would prevent the claimants, as between themselves and the government, from paying for and entering the lands, provided the law be complied with in other respects. Such is in substance the holding in the decision complained of, and the holding is clearly right. Any other construction would not only give rise to confusion but would be contrary to the spirit and plain intent of the statute.

It is further contended that there was error in refusing to order another hearing in the premises upon the recent proceedings instituted by Lehmer and one B. W. Metheny, referred to and set out in the latter part of said decision. The action in this respect was clearly justified by the facts and circumstances disclosed by the record, and is adhered to.

There are other minor contentions presented by the motion for review, all relating, however, to matters heretofore fully considered by the Department. It is unnecessary to here set them out in detail. It is sufficient to say as to them that the Department is not convinced of any error in its former decision. The motion for review is accordingly denied.

UINTAH INDIAN RESERVATION-EXTENSION OF TIME WITHIN WHICH TO ESTABLISH RESIDENCE-ACT OF JANUARY 27, 1906.

Register and Receiver,

INSTRUCTIONS.

DEPARTMENT OF THE INTERIOR,

Vernal, Utah.

GENERAL LAND OFFICE,

Washington, D. C., February 20, 1906.

GENTLEMEN: Your attention is invited to the act of Congress approved January 27, 1906 (Public-No. 7), which provides:

That the homestead settlers on lands which were heretofore a part of the Uinta Indian reservation, within the counties of Uinta and Wasatch, in the State of Utah, opened under the acts of May twenty-seventh, nineteen hundred and two, and March third, nineteen hundred and three, and March third, nine

teen hundred and five, be, and they are hereby, granted an extension of time in which to establish their residence upon the lands so opened and filed upon until the fifteenth day of May, anno Domini nineteen hundred and six: Provided, however, That this act shall in no manner affect the regularity or validity of such filings, or any of them, so made by the said settlers on the lands aforesaid ; and it is only intended hereby to extend the time for the establishment of such residence as herein provided, and the provisions of said acts are in no other manner to be affected or modified.

This act is given effect as to all entries made of said lands prior to November 15, 1905.

Soldiers and sailors who have filed declaratory statements under section 2309 of the Revised Statutes come within the spirit of the relief granted by the act, and where such declaratory statement has been filed before November 15, 1905, are entitled to the extension, both as to settlement and entry.

Very respectfully,

Approved:

E. A. HITCHCOCK, Secretary.

W. A. RICHARDS, Commissioner.

DESERT LANDS-STATE SELECTION—ACTS OF AUGUST 18, 1894, AND JUNE 17, 1902.

YAKIMA DEVELOPMENT Co. e. STATE OF WASHINGTON.

The Department declines to approve the application of the State of Washington for the segregation of certain lands in that State under the provisions of the act of August 18, 1894, known as the Carey act, and further declines to adopt the suggestion of the State to the effect that the government proceed with the reclamation of the lands, which fall within the irrigable area of a contemplated irrigation project under the provisions of the act of June 17, 1902, and, after reclamation shall have been accomplished under the proposed project, to allow the State the benefits thereof as though performed by it under the provisions of the Carey act.

Secretary Hitchcock to the Commissioner of the General Land Office. (F. L. C.) February 23, 1906. (G. B. G.)

By departmental decision of May 5, 1905 (not reported), your office decision herein of October 17, 1904, dismissing the protest of The Yakima Development Company against the application made by the State of Washington, on behalf of the Washington Irrigation Company, for the segregation of 55,584.99 acres of land, list No. 7, under the provisions of the act of August 18, 1894 (28 Stat., 372, 422), known as the Carey act, and acts amendatory thereof, was affirmed.

That decision was put upon the ground mainly that it was not shown that the protestant company had such rights in the premises