It appears that one W. A. Snyder filed a similar application on April 21, 1932; that the Commissioner rejected the same on the ground that Rasor had prior rights; and that Snyder, after due notice, failed to appeal. Under these circumstances the case of Snyder's application may be considered closed.

The decision appealed from is reversed and the case is remanded with directions that Rasor be served with a copy hereof and given opportunity to object or file motion for rehearing. If within 15 days from service of notice he fails to take such action, the Commissioner will act upon Fletcher's permit in accordance with the views hereinbefore expressed.

Reversed.

ROBERT J. EDWARDS AND J. C. JAMIESON v. OSCAR T. S. SAWYER Decided January 27, 1933

PUBLIC LANDS-HOMESTEAD ENTRY-WATER RIGHTS UNDER SEC. 2339 OF THE REVISED STATUTES.

The water rights acquired and safeguarded by section 2339, Revised Statutes, are distinct from any right in the land itself, and the existence of such rights is no bar to acquisition of the land under subsequent homestead entries or locations, but all patents granted or homesteads allowed are subject to any vested accrued rights that may have been acquired under or recognized by this section.

PUBLIC LANDS HOMESTEAD ENTRY-PRIOR WATER RIGHTS-DEPARTMENT OF THE

INTERIOR-JURISDICTION.

This Department has repeatedly decided that it is without jurisdiction to determine the question as to the right to water, that being a matter solely within the province of the State courts. Silver Lake Power & Irrigation Company v. City of Los Angeles (37 L.D. 152, 153) and cases there cited; and the remedy of the owner of such a water right lies in recourse thereto. PUBLIC LANDS-PUBLIC WATER RESERVE-APPROPRIATION OF WATER UNDER STATE LAW.

A withdrawal for a public water reserve (see Executive order of April 17, 1926, and regulations thereunder, in 51 L.D. 457) does not contemplate the withdrawal of tracts containing mere dry depressions or draws which do not, in their natural condition, furnish or retain a supply of water available for public use, and the owner of a right, obtained from the State to such water, acquires no color of title or exclusive possessory right to the subdivision upon which the water was appropriated and used, but, at most, merely an easement.

PUBLIC LANDS-DEPARTMENT'S RULES OF PRACTICE.

Rules of Practice limiting the time in which appeals may be taken and motions for rehearing made are of the greatest practical importance, being necessary to put a period to vexatious litigation and to secure to the parties litigant the termination of their legal controversies, and, at least in cases inter partes, will be strictly enforced in the absence of valid

excuse or of circumstances strongly calling for the exercise of the directory and supervisory power conferred upon the Department by law.

PUBLIC LANDS-RULES OF PRACTICE-RULE 76.

Rule 76 of Practice prescribes that notice of appeal from the Commissioner's decision must be served on the adverse party and filed in the office of the register or in the General Land Office within 30 days from the date of service of notice of such decision.

EDWARDS, Assistant Secretary:

August 19, 1929, Oscar T. S. Sawyer filed application Phoenix 066378 under the enlarged homestead act for S2 Sec. 17, T. 8 S., R. 12 E., G. & S. R. M., and application 066379 under the stock-raising homestead act for NW14 Sec. 17 and NW14 Sec. 20 in the same township and range. The applications were allowed respectively on January 8 and 29, 1930. Contest was instituted by Robert J. Edwards against both entries, alleging the existence of conflicting lode mining claims; namely, Giant Cactus Nos. 1 to 3, located July 1, 1926, and Nellie Nos. 1 to 3, located in February, 1929, and that, at the date the applications were filed, the land was claimed, occupied and being worked under the mining laws. John C. Jamieson was allowed to intervene upon allegations of equities in the land based upon a claim of ownership of a water right and reservoir for stockwatering purposes situated on the SW4SW14 Sec. 17, acquired under provisions of the State law, and upon further allegation of the ownership of one mile of pasture fence on the homestead. Hearing was held between all parties on June 1, 1931. The register found that: "The evidence proves the existence of the mining claims and the reservoir site. The value of the ore may be questionable, but there is no doubt about the mining claims." He therefore recommended cancellation of both entries as to the land embraced in the reservoir site and land embraced in the Gold Eagle claims Nos. 1 to 6, inclusive, which, the evidence shows, were located July 1, 1930, after both homestead entries had been allowed. The contestant testified that he kept up the assessment work at all times on the claims asserted in his contest. He at the same time characterized the Eagle claims as valid, refused to state whether he had an interest in them, and said "that he did not have them now."

Upon review of the evidence on appeal, the Commissioner held that contestant's interest in the land ceased on July 1, 1930, and that he had abandoned his claims, but the mineral character of the enlarged entry was, nevertheless, drawn in issue; that there can be no valid mining claim without discovery of mineral within its limits, and that contestant did not sustain the burden of proof and show that the claims were valid or the land mineral in character. He therefore dismissed the mineral contest. He, however, upon con

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flicting evidence, held that the tank or reservoir claimed by Jamieson was situated on the SE4SW14 Sec. 17, and that Jamieson was in possession of this subdivision under claim of right and Sawyer's attempt to acquire title thereto was illegal, but as to the water right filed on the mine shaft in the SW4SW14 Sec. 17, he held that: "The evidence failed to show that such use has been made of it as to bring it within the purview of Sec. 2339, Revised Statutes ", holding the entry for cancellation only as to the SE14SW4 Sec. 17.

Notice of this decision was served on all parties May 23, 1932. Jamieson appealed on the ground that the homestead entry should be canceled as to the SW4SW4 for the reason that water-right appropriation thereon under State law was protected by section 2339, Revised Statutes. Sawyer having died in the meantime, his widow appealed from the action canceling the homestead as to SE4SW, contending that the water right was not valid under the law of the State. Both of these appeals were timely filed. On July 6, 1932, Edwards appealed from the Commissioner's decision. Sawyer's widow filed a motion to dismiss the appeal of Edwards because not taken within 30 days from notice of the Commissioner's decision. The Commissioner denied the motion on the ground that the other appeals, timely filed, preserved the status of all parties to the litigation even if they are not properly appellants, and that "the case will necessarily have to go to the Department for consideration, at which time, in view of the circumstances in the case, an examination of the entire record will be necessary and the rights of all parties concerned will be put in issue." The case of Cosby et al. v. Avery et al. (24 L.D. 565) was cited as authority for this action.

The appeals filed in time drew in question solely the claim of prior possessory right to part of the land by virtue of Jamieson's appropriation of water under the State law, and required no consideration of the question as to the mineral character of the land or the validity of the alleged mining claims.

In the case of Cosby et al. v. Avery et al., supru, there was an award of a town lot, the back end being given to one set of claimants and the remainder to another set. One set of claimants appealed, claiming the whole lot. Those who timely appealed necessarily drew in question the rights of the others who did not appeal and entitled the latter to appear as appellees. There is no analogy in the facts and the case is not in point. Rule 76 of Practice prescribes:

Notice of appeal from the Commissioner's decision must be served on the adverse party and filed in the office of the register or in the General Land Office, within 30 days from the date of service of notice of such decision.

Rules of Practice limiting the time in which appeals may be taken and motions for rehearing made are obviously of the greatest

practical importance, being necessary to put a period to vexatious litigation and to secure to the parties litigant the termination of their legal controversies, and, at least in cases inter partes, will be strictly enforced in the absence of a valid excuse or of circumstances strongly calling for the exercise by this Department of its directory and supervisory power conferred on it by law. Sheldon v. Warren (9 L.D. 668); Julien v. Hunter (18 L.D. 151); Graham v. Lansing (13 L.D. 697); Vradenburg's Heirs et al. v. Orr et al. (25 L.D. 323). The evidence as to mineral character of the enlarged entry and as to validity of the claims asserted as well as those subsequently made, has, however, been reviewed by the Department, and no error is seen in the findings of fact or in the application of rules of law and evidence. Specific data in support of conclusions that discoveries of valuable copper ore had been made on the claims are conspicuously lacking. One witness for contestant testified to a ledge of ore 20 feet wide with pretty fair showing in the bottom of a 100-foot shaft on the SW4SW4 Sec. 17, but admitted it was not uniform in value and "if you go a little ways on the vein you lose it, and then probably you spend a lot of money trying to find it again." The witnesses that testified to ore shipped after the entries were made did not specify the tract or the claim from which the ore came, knew nothing of the values of the shipment, and it can not be determined whether or not the returns justified further operations. Furthermore, it is shown that contestant permitted one Luthey to relocate the claims for himself shortly after the shipment, which operated as an abandonment of contestant's rights (Lindley on Mines, section 644), and also discloses that he has no present rights which can be prejudiced by the decision. There must be either a discovery of mineral or actual possession of the claim by the claimant thereof diligently engaged in the search for mineral at the date of the inception of the homestead entryman's rights, and if neither of these conditions exists the lands can not be deemed to be claimed, occupied and worked under the mining law. United States v. Hurliman (51 L.D. 258); Ainsworth Copper Co. v. Ber (53 I.D. 382, 383); Thomas H. B. Glaspie (53 I.D. 577). Neither of these conditions is shown in the present case. The entryman, therefore, did not make a false statement when he averred in his application that the land was not claimed, occupied, or being worked under the mining laws. There is nothing apparent that calls for the exercise of supervisory power by the Secretary. The appeal of contestant is therefore dismissed for failure to observe Rule 76 of Practice.

Turning now to the appeal of Jamieson, it is noticed that his claim is based solely on rights to water on public land acquired under the law of Arizona, and not under any appropriation of public land

under Federal law. The rights so acquired and safeguarded by section 2339, Revised Statutes, are distinct from any right in the land itself (Simons v. Inyo Cerro Gordo Mining & Power Company et al., 192 Pac. 144), and under section 2340, Revised Statutes, "All patents granted or preemptions or homesteads allowed are subject to any vested accrued rights" as may have been acquired under or recognized by this section. The existence of such right is no bar to acquisition of the land by a timber and stone entry (John H. Parker, 40 L.D. 431), or a stock-raising homestead entry (Thomas H. B. Glaspie, 53 I.D. 577), or other subsequent homestead entries or locations. See numerous cases, United States Code Annotated, Title 43, section 661, notes 32, 38. The Department has repeatedly decided that it is without jurisdiction to determine the question as to the right to water, that being a matter solely within the province of the State courts. Silver Lake Power & Irrigation Company v. City of Los Angeles (37 L.D. 152, 153) and cases there cited. Jamieson obtained, at the most, but an easement by the purchase of the existing water right. He obtained no color of title or exclusive possessory right to the subdivision upon which the water was appropriated and used. The only valid challenge he could make to the entry of Sawyer would be to the effect that the land contained a spring or water hole" providing enough water for general use for watering purposes within the purview of the Executive order of withdrawal of April 17, 1926, and regulations thereunder (See. Circular 1066, 51 L.D. 457), and therefore was not subject to entry. The evidence shows that the artificial tank or reservoir which the Commissioner found was on the SE4SW14 and was designed for and has been utilized for the collection and storage of surface water, and consists of a dam a few feet high, thrown across a dry wash to collect run-off water from the hills, and which at times is dry. The Department has held that the above-mentioned withdrawal for public water reserve does not contemplate the withdrawal of tracts containing mere dry depressions or draws which do not, in their natural condition, furnish or retain a supply of water available for public use. Santa Fe Pacific Railroad Company (53 I.D. 210). As for the water in a mining shaft 100 feet deep on the SW4SW1⁄4 Sec. 17, which was the subject of water appropriation by intervener's assignor for stock-watering purposes, nothing appears as to source or quantity of flow of the water, if any, therein. It is shown that it is close to the margin of the reservoir on SE14SW; that a pump has been installed there which was used on one occasion to unsuccessfully unwater the shaft for mining purposes, and on another to furnish water for livestock when the reservoir was dry. It does not appear that the source of supply for the reservoir is from