At a hearing duly ordered, the local officers, upon the evidence submitted, found that said lot 18 embraced said mineral lot No. 89, which has been known to possess valuable mineral since 1857; that by reason thereof it was excepted from the grant to said company; that the company's selection of said lot should be cancelled to the extent of the mineral lot, and the mining company should be allowed to make application for mineral patent to said lot No. 89, under the mining laws. On ap. peal, your office affirmed the findings of the local officers.

The company alleges in its appeal that the hearing was ordered without authority of law and without notice to it; that the grantee of the company was a necessary party; that the burden of proof was upon the mining company, and the evidence shows "that the land is not known, and never has been known to be valuable for mining purposes," and that your office decision is contrary to the law and evidence submitted in the case.

Neither contention of the appellant can be sustained. The hearing was duly ordered by your office letter of July 3, 1889, and said railroad company was represented at said hearing by attorneys who appeared generally and filed objection to the jurisdiction of your office to order said hearing, and afterwards cross-examined the witnesses.

The tract in question, never having been patented to the company, the Department has authority at any time prior thereto to investigate the mineral character of the land, and the fact that the company sold said lands, with others, as alleged, will not alter the case. Nor does the fact, as alleged by the company, that upon its application in an ex parte proceeding the land had been found to be agricultural in character, prevent the Department from ordering a hearing upon the application of the mining company to determine the character of the land in question, which was returned as mineral. The character of the land has not passed "in rem judicatam," for the parties are different, and until patent issues the Department may investigate the character of the land, whether claimed under a railroad grant or the mining laws. Whitnall v. Hastings & Dakota R'y Co., 4 L. D., 249; Central Pacific R. R. Co. v. Valentine, 11 L. D., 238; Searle Placer, id., 441.

The evidence submitted clearly shows that said lot 89 was known to be valuable for mineral long prior to the date of said grant, and continued so to be at the date of said hearing.

The decision of your office must be and it is hereby affirmed.

17581-VOL 12—39

COMMUTED HOMESTEAD-SECTION 7, ACT OF MARCH 3, 1891.

R. M. CHRISINGER.

An entry canceled by a decision that became final prior to the passage of the act of March 3, 1891, is not within the confirmatory provisions of section 7, of said act. Acting Secretary Chandler to the Commissioner of the General Land Office, June 6, 1891.

I am in receipt of your letter of April 27, 1891, transmitting the application of John J. Ballery, transferee, for the reinstatement and confirmation under section seven of the act of March 3, 1891, of the commuted homestead entry made by Robert M. Chrisinger for the SE. 1, Sec. 6, T. 4 N., R. 32 E., La Grande, Oregon.

Said entry was canceled by the decision of the Department of January 25, 1886 (4 L. D., 347). That action was final in the case. An entry canceled by a decision that became final prior to the passage of the act of March 3, 1891, is not within the confirmatory provisions of section seven of said act. See case of James Ross (12 L. D., 446). Said application is accordingly denied.

PROCEEDINGS BY THE GOVERNMENT-SECTION 7, ACT OF MARCH 3, 1891.

UNITED STATES v. DE LENDRECIE.

An adverse decision of the General Land Office, on proceedings instituted by the government, will not defeat the confirmatory effect of the proviso to section 7, act of March 3, 1891, where said proceedings are not begun within two years after issuance of the receiver's final receipt, and the entry is otherwise within the terms of said proviso.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, June 8, 1891.

I have considered the case of The United States v. Onesine J. De Lendrecie, on the appeal of the latter from your decision of January 22, 1890, holding for cancellation his commuted cash entry for the NE. of Sec. 8, T. 132 N., R. 62 W., Fargo land district, Dakota.

Homestead entry was made for the land in question on the 26th of February, 1883, and commuted to cash entry November 13, of the same year, upon proof satisfactory to the register and receiver that the entryman had complied with the law. Upon filing his proofs, and paying to the receiver the sum of two hundred dollars, he received from the register on that date a certificate entitling him to a patent for the land.

The General Land Office instructed special agent W. W. McIlvain to make examination of the land in question, and he examined the same on the 17th of May, 1883, and also in November of the same year,

making his report on the 15th of December, 1884, finding no evidences of fraud on the part of the entryman. Special agent Allen M. Easterly made examination of the land on the 7th and 9th of April, 1887, and made his report on the 13th of May, 1887, recommending that the entry be held for cancellation.

By your office letter of June 7, 1887, you instructed the register and receiver to give the claimant notice of the nature of the special agent's report, and advise him of his right to apply for a hearing to show cause why his entry should be sustained. Application for hearing was duly made, and directed by your office letter of January 11, 1888. It took place in May of that year, and on the 24th of September following, the register and receiver decided that the claimant had shown good faith by residence and improvement on the land, that he did not make the entry for speculation, but made it in good faith and for his own use and benefit, and that the case should be dismissed.

When the matter came before you for consideration, and on January 22, 1890, you reversed the judgment of the register and receiver, and held the entry for cancellation. The case comes to this Department upon appeal of the entryman from your decision.

Section 7 of the act of Congress entitled "An act to repeal timber culture laws, and for other purposes," approved March 3, 1891 (26 Stat., 1095), has a proviso which reads as follows:

Provided, That after the lapse of two years from the date of the issuance of the receiver's receipt upon the final entry upon any tract of land under the homestead, timber-culture, desert-land, or pre-emption laws, or under this act, and where there shall be no pending contest or protest against the validity of such entry, the entryman shall be entitled to a patent conveying the land by him entered, and the same shall be issued to him; but this proviso shall not be construed to require the delay of two years from the date of said entry, before the issuance of a patent therefor.

No contest or adverse proceeding having been initiated by any person to secure the cancellation, or defeat the consummation of the entry in this case, and the proceedings which resulted in the judgment herein appealed from not having been instituted by the government within two years after the issuance of the receiver's receipt upon final entry, the entryman is entitled to a patent, under this proviso, and the instructions approved by this department under date of May 8, 1891, and published in 12 L. D., 450.

Your decision holding the entry for cancellation is therefore set aside, and a patent will issue.

OKLAHOMA TOWN-SITES-CIRCULAR.

DEPARTMENT OF THE INTERIOR,
Washington, May 8th, 1891.

To the Trustees of Town-sites in Oklahoma:

Paragraphs 13 and 23 of the regulations provided by the Secretary of the Interior, for the guidance of trustees in the execution of their trust in allotting town-sites in Oklahoma, promulgated June 18, 1890, 10 L. D., 666, are hereby amended so as to read as follows:

13. Any person feeling aggrieved by your judgment may, within ten days after notice thereof, appeal to the Commissioner of the General Land Office under the rules (except as to time) as provided for in appeals from the opinions of registers and receivers, and if either party is dissatisfied with the conclusions of said Commissioner in the case, he may still further prosecute an appeal within ten days from notice thereof to the Secretary of the Interior upon like terms and conditions and under the sames rules that appeals are now regulated by and taken in adversary proceedings from the Commissioner to the Secretary except as modified by the time within which the appeal is to be taken. Such cases will be made special by the Commissioner and the Secretary and determined as speedily as the public business of the Department will permit, but no contest for particular lots, blocks, or grounds shall delay the allotment of those not in controversy, and a failure to appeal as herein provided shall not be construed as a waiver of, or to prejudice the rights of either party, nor held to preclude suits in the courts in case the party entitled to appeal desires to proceed in that manner for the purpose of settling the title to the lot or lots in controversy.

23. You will be allowed six dollars per day for each day's service when you are actually engaged and employed in the performance of your duties as such trustee; your necessary traveling expenses; and three dollars per day for your subsistence. But these sums may be reduced in either board at the will of the Secretary of the Interior if he deems it for any cause necessary.

This order will take effect from and after its date.

Very respectfully,

JOHN W. NOBLE,

Secretary.

MINERAL LAND-COAL ENTRY-BURDEN OF PROOF.

SAVAGE ET AL. v. BOYNTON.

In an issue as to the character of land that is prima facie agricultural the burden of proof is with the mineral claimant.

The coal, or mineral character of land must be determined by the actual production from mining on the tract, or by satisfactory evidence that coal or mineral exists on said land in sufficient quantity to make the same more valuable for mining than for agriculture.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, June 10, 1891.

I have considered the appeal of Edward G. Savage and Frank E. Lyman from the decision of your office, dated February 17, 1890, in the case of Edward G. Savage and Frank E. Lyman v. Sarah E. Boyn

ton, rejecting the application of said appellants to enter as coal lands, the SW. of SE. †, Sec. 33, T. 32 S., R. 68 W., and N. of NE. 1, Sec. 4, T. 33 S., R. 68 W., Pueblo, Colorado.

It appears that on December 12, 1887, Sarah E. Boynton filed a preemption declaratory statement for the tracts above described as also the NW. of NW. 4, Sec. 3, T. 33 S., R. 68 W.; that on May 11, 1888, five months subsequent thereto, Edward G. Savage filed coal declaratory statement for the N. of NW. and N. 1⁄2 of NE 4, Sec. 4, T. 33 S., R. 68 W., and that on June 20, 1888, Frank E. Lyman filed coal declaratory statement for the S. of SE. 1, NW. 4 of SE. 1, and SW. † of NE. 1, Sec. 33, T. 32 S., R. 68 W., the coal claim of Savage being in conflict with the claim of Boynton as to the N. of NE. 4, Sec. 4, and the claim of Lyman being in conflict as to the SW. 1, of SE. 1, Sec. 33.

Final proof was made by Mrs. Boynton on her pre-emption claim February 28, 1889, before the clerk of the district court at Trinidad, Colorado, and on March 22, following, James E. Hammond, attorney in fact for the contestants, protested against the allowance of said proof on the ground that one hundred and twenty acres of said pre-emption were more valuable for its coal deposits than for agricultural purposes.

In view of these allegations, the local officers designated May 17, 1889, as a day of hearing, with notice to all parties in interest, to take testimony on the point at issue.

After an examination of the evidence submitted the register decided that the alleged coal character of the land in question was not satisfactorily shown and therefore the proof of Mrs. Boynton should be accepted.

The receiver, however, dissented from the view taken by the register and submitted an opinion holding that the coal character of the land was fully established. Your office, under date of February 17, 1890, sustained the decision of the register awarding the land to the defendant, from which decision the contestants appeal.

It appears that the land embraced by the claim of Boynton was surveyed sometime in 1871 and also in 1875, and there is no evidence in the field notes showing that the land was returned as coal land, although in some of the subdivisions near this tract coal has been found, and from a drift or opening in one of them, coal has been used to someextent by the settlers in the neighborhood.

It would seem from the record in this case, that the tracts in question lie in the margin of what is known in that section as the Trinidad coal field or belt; that coal has been discovered in a number of places within a radius of a few miles, and in the case under consideration it is claimed that part of the tract is coal land of more value for mining than for agricultural purposes.

The testimony shows that no coal has ever been mined on the tract in question, nor is there any reliable surface indications that coal, or any other mineral, exists on this land in sufficient quantities to make the land more valuable for mining than for agricultural purposes.