On

entrymen, but had not entered upon the tracts in controversy. November 17, 1884, Garner wrote Secretary Teller exposing these fraudulent entries and wrote the Commissioner on December following to same effect, and asked that action be suspended on the entries made by Peterson and Carlson, and asked that he have time to prepare to contest these entries, and on December 9, 1884, he and Nesbitt sent to your office an affidavit of contest (not protest as stated by your office) against said entries, corroborated by two witnesses. They accompanied this with a written offer to deposit such sum of money as your office might direct, for the payment of the expenses of a contest, and they asked that the local officers be directed to allow them a hearing. This affidavit charged fraud in the entries substantially as herein stated They had made a settlement on the land and begun operation, and they made application to the local officers for leave to file a coal declaratory statement for the tracts, (as an association). This was rejected because the entries of Carlson and Peterson were on file. From this action they appealed.

The contest papers were sent to your office because the entries had been transmitted to it and the local officers declined to act in the matter. They employed counsel at home and also in Washington, D. C. to attend to their contest and appeal, and on January 17, 1888, these attorneys wrote your office assuring it that their clients would deposit money to pay expenses and asking that the local officers be directed to proceed with a hearing.

On February 5, following, they transmitted to your office some additional affidavits, and among them one made by John Carlson, one of the entrymen, in which he corroborates in every particular the charges in the affidavit of contest and says he "was influenced and caused to enter said tract of coal land by the agent of the Trinidad Coal and Coking Company." He gives a full history of the transaction and says that he did not understand the land laws when he made the entry, or he would not have done so, and he wants the government to know the facts in the case.

Upon the statements of Garner and Nesbitt, Special Agent Dill was directed to examine the matter, and on February 13, 1885, he sent to your office reports, on the entries of Peterson and Carlson, similar in all respects. He reported that the entries were each made in the interest of the Trinidad Coal and Coking Company, and transferred to it on June 4, 1883 each for the consideration of four thousand dollars ($4,000).

The remaining six entries made at the same time with these two, and under the same circumstances, all described in Garner's letters and referred to Dill were passed to patent. The frauds, however, became so apparent that suit was instituted to set them aside. They were sustained by the district court and brought to the supreme court of the United States on appeal by the government, where they were held to

be invalid by reason of the frauds committed by the Trinidad Coal and Coking Co. See United States v. Trinidad Coal and Coking Company (137 U. S., 160). Notwithstanding the rejection of their application to make entry for the land, Garner and Nesbitt continued to press their contest and remained in possession of the land until February 1886 when they were restrained by order of the court from further operations thereon.

On December 31, 1885, your office decided, upon the evidence before it, that the entries of Carlson and Peterson were fraudulent and they were held for cancellation. Sixty days were allowed for appeal, and in the meantime

the application of Messrs. Garner and Nesbitt to contest will remain in abeyance pending final action under these proceedings.

Carlson, on February 9, and Peterson, on April 21, 1886, filed, through the attorneys of Garner and Nesbitt, waivers of appeal and disclaimers of any interest in the land, but counsel for the Coal and Coking Com. pany asked to be allowed to appeal for them, which was refused because of their waivers, upon which they made known to your office that they also represented the Trinidad Coal and Ceking Company, and they asked to be allowed to appeal for it as transferee of the entryman. This was also refused.

The company had previously applied to the Department for an order, in the nature of a petition for mandamus, and it alleged that it held said land under Trujillo and Rimber homestead entrymen, and that patents for these tracts had been made out and signed but not dated or delivered, and it asked that an order be made upon your office that said patents be delivered to the said company as transferee of said entry. men. This had been refused.

Upon your office refusing to allow the appeal of the Trinidad Coal and Coking Company, it applied for a writ of certiorari, and the papers were thereupon ordered to be sent to the Department, and upon consideration of the case, of Adolph Peterson et al. as upon appeal, your office decision cancelling their entries was affirmed. This decision was rendered December 2, 1887 (6 L. D., 371).

On January 14, 1888, your office wrote the register and receiver at Pueblo, Colorado saying

As the special agent's investigation was instituted upon information furnished by these parties and in view of their application for a hearing to show at their expense the fraudulent character of said entries, you will advise W. A. Garner and J. P. Nesbitt of the action taken and accord them a preference right of entry of said tracts under the coal land laws.

On February 2, following Garner and Nesbitt, as an association, filed coal declaratory statements, as herein before stated, and immediately be. gan work on the land. On the 8th day of same month, one D. R. Benau filed in the district court an affidavit in said injunction case, without disclosing in any way for whom he appeared, or what right he had to

appear therein, charging the defendants with violating the restraining order theretofore issued, by working in a shaft theretofore begun by them on the land. An attachment was issued for them; they were brought into court and each was fined twenty-five dollars ($25.00) and costs and ordered to stand committed to jail until fine and costs should be paid. On February 1, 1888, D. A. Mulvane had placed on file an affidavit alleging that he and George W. Mulvane had purchased the said lands of the Trinidad Coal and Coking Co. and asking to be substituted as party plaintiff in its stead. And on March 20, following, an order of substitution was made accordingly.

`On March 27, 1886, Garner et al. filed an answer to the petition in the injunction case, denying the company's ownership of the land and denying that its possession was lawful; admitting that they (the defendants) were working on the lands and alleging that they were rightfully in possession. On March 3, 1888, they filed a supplemental answer setting forth the action of your office and this Department in cancelling the entries of Peterson and Carlson and awarding these defendants a preference right of entry. Reply was filed to the answer and this supplemental answer, denying the allegations thereof, and especially denying the authority of your office or this Department to cancel said entries, and upon these issues the cause was heard on October 3, 1888, and the injunction was made perpetual.

The history of the case, as brief as the importance of the case will allow, shows the efforts of the Trinidad Coal and Coking Company to retain possession of these lands until it can get the coal out of them, and it is apparent that the officers and agents of that company have not hesitated to do, and procure to be done, anything that tended toward this objective point.

I do not find that there was any error in according to Garner and Nesbitt the preference right of entry for this land. It is apparent from the foregoing that their affidavit of contest was filed in good faith, that it was sufficient in law and true in fact.

Counsel say they did not offer to pay the expenses of a contest," but in an unsworn letter." This was entirely sufficient-" No hearing was ordered and no notice served". These were matters over which Garner et al. had no control. They procured the testimony of Carlson prior to any action by Agent Dill, and they and their attorneys assisted the Special Agent in such investigation as he saw proper to make.

In the case cited and followed by your office, to wit Perkins v. Rob. son (6 L. D., 828) Robson had not filed any affidavit of contest or offered to defray the expense of a contest, but simply, when called upon by the Special Agent, made an ex parte affidavit. Upon this, it was held that he had not acquired any preference right. In Johnson v. Walton (11) L. D., 278) Johnson filed an affidavit of contest and deposited the fees required of him. He attempted to serve contestee with notice, but he not being found in the county, service was not made. No publication

was made and Johnson took no further steps in the matter. The case was referred to a special agent. Johnson's attorney told him (Johnson) he need do nothing further. His attorney, however, it appears assisted the special agent in securing some evidence and the entry was canceled upon the agent's report. It was held that Johnson had acted in good faith, and that as his action was really the basis of the investigation, he should be awarded the preference right of entry, notwithstanding an investigation had been instituted on behalf of the government. It is true he deposited money with the local officers to pay contest fees, and in the case at bar the local officers having no authority to receive such deposit, sent your office the written proposition of these contestants to make such deposit as your office might direct. This was all they could do in the case, and must be held, in the absence of any direction by your office, as the equivalent of a deposit.

Counsel for Mulvanes say:

The entries were canceled on admitted facts and Garner et al. were never recognized as contestants and as such never expended a dime or acquired any rights.

As there is no testimony as to what they paid their attorneys. nor the expense they incurred in securing affidavits to prove the fraudulent character of these entries, counsel are not warranted in their statement.

In the case of Johnson v. Walton supra Johnson's attorney had the advice and assistance of the special agent, while in the case at bar Garner et al. had to cope with a rich and influential corporation, and they do not seem to have had the support of the government special agent, as they should have had.

It does therefore seem that having acted in good faith and having done all that they were permitted by your office to do, they should be allowed in justice and fairness the preference right of entry accorded a successful contestant.

It is said that as the case at bar involves a coal entry the provisions of the act of May 14, 1880 (21 Stat., 140) do not apply. In the case of Ringsdorf v. The State of Iowa (4 L. D., 497) it was held that in a swamp land claim the successful contestant was entitled to a preference right of entry. In Bunger v. Dawes (9 L. D., 329) it was held that an entry of Kansas Iudian trust land was subject to contest, and that the successful contestant was entitled to preference right, aud in the case of Frazer v. Ringold (3 L. D., 69) it was held that the preference right of entry was applicable to contests of desert land entries. The same principles of construction of the statute and the same reasoning applies, with equal force to contests of coal entries as to either of the above mentioned class, and it seems that it is well that this is so. The per

son who honestly aids the government in preventing persons and corporations from securing coal lands by fraudulent, illegal and even criminal methods, is as much entitled to reward as are those who aid in preventing fraudulent homestead or other entries. The truth of this proposi tion is proven and emphasized by the case at bar.

IN

Counsel for Mulvane earnestly claim that the equities of the case are all with their clients. They forget that "Equity follows the law." Their clients are not " innocent purchasers" as claimed. They evidently knew that their grantor had no title to this land, hence they divided up the contract of sale and after taking a deed for the land, they had the shafts, slopes, entries, tracks and stationary machinery, all of which was real estate, and in a straight forward business transaction would have passed with the sale of the land, inventoried as chattels and transferred by a bill of sale as "improvements." Moreover, there was a suit pending in a court of record in the county within which the land was situate, in which the specific land was mentioned and described, the title and right of possession was asserted by the Trinidad Coal and Coking Company, and in Garner's answer the allegations of the petition were denied and he asserted title in himself. The doctrine lis pendens is clearly applicable to the case. Counsel say their clients, Mulvanes, were on the land when the prior entries were canceled, that Garner et al. were not; that the Mulvanes antedate Garner et al. in possession and are therefore superior in right. The force of this proposition is lost in the doubtful legality of the proceeding by which Garner et al. were forced off the land and kept out of their prior possession.

They say:

The work dore by Garner et al. at a time when the land was covered by an entry, was not done on public lands, and hence is not within the coal land law.

This applies with equal force to the work done by the Trinidad Coal and Coking Company and to the Mulvanes; so no rights can be asserted by them on account of those extensive improvements, made while the land was not public.

I do not find that there are any equities in the case in favor of Mulvanes which even tend to overcome the legal rights of Garner et al. to their preference right of entry. The conduct of the Mulvanes outweighs their words. They virtually abandoned this property after securing a perpetual injunction against Garner et al. and a filing upon the land, and loaned, leased or rented, the tools and machinery, allowed them to be removed from the mine, allowing it to fill with water, the timbers to rot, the entire improvement to stand idle and neglected, to fall into ruin, while they remain nou-residents of and absent from the State. This fact taken in connection with the entire evidence in the case and the circumstances surrounding it satisfy my mind that this pretended sale by the Trinidad Coal and Coking Company was a mere device, in keeping with its previous record, to retain control of these lands.

So finding that the Mulvanes have no equitable or legal right to the premises, their entry will be canceled and W. A. Garner and J. P. Nes. bitt will be accorded their preference right of entry. Your decision is accordingly reversed.