coal had been opened on any of the subdivisions thereof by the said pre-emptors or any one else; that he (petitioner) was prevented by his extensive business interests at St. Louis, from visiting or making a personal examination of said lands, and, in making said purchases, relied upon the representations of his agent McCoy, who did not himself examine said lands, but relied upon the sworn declarations of said preemptors (filed in the local land office), that they had opened valuable mines thereon, and that said declarations of said pre emptors were false and fraudulent, and that said preference entries were made with a view to selling the rights sought to be acquired thereunder and not for the purpose of purchasing said lands or working mines thereon.

After the filing of said petition, your office, September 13, 1886, directed the surveyor-general to designate a competent deputy to examine and report on behalf of the government as to the character of said lands and "the workings and development found thereon;" and an expert surveyor, mining engineer, metallurgist and geologist having been appointed under said direction, examined said lands and reported, "that coal did not exist within the limits of said entries and that the tracts have no value for coal mining."

Your office, by letter of October 22, 1886, after examination of said report, concurred therein and canceled said entries, but held up for further consideration the question of repayment of the money paid the government for said lands. Five days thereafter, October 27, 1886, your office sent a telegram to the local officers, recalling said letter of October 22, canceling said entries, but assigning no reason therefor. By letter of July 15, 1887, your office denied the petition of the appellant "to cancel said entries and refund the purchase money paid thereon." From this decision the present appeal is taken.

There are several reasons which the United States might invoke to cancel these entries.

First, upon the supposition that the statements made in regard to their character are true, these are not coal lands, because they do not contain coal, and hence are not within the provisions of the Revised Statutes relating to coal lands.

Secondly, the several entries were all made pursuant to section 2348 of the Revised Statutes under claim by each of the several entrymen of a preference right of entry, which, however, is given by that section only to qualified persons or associations of persons who shall have "opened and improved . . the public lands, and shall be in actual possession of the same." . . any coal mine or mines upon declaratory statement under this statute is required to be made under The oath and to affirm that the claimant has “located and opened a valuable mine of coal" on the land, and, besides, that he has expended in labor and improvements on such mine a specific sum of money, with a description of such labor and improvements. The entrymen ust clearly have committed perjury in these declarations if the statements of the petition are true.

Thirdly, the regulations required each claimant at the time of actual consummation of the purchase to make a sworn statement embracing, among other things, the following:

That I am now in the actual possession of said mines, and make the entry for my own use and benefit, and not directly or indirectly for the use and benefit of any other party.

On the facts stated, these declarations were all false and fraudulent in this particular.

Fourthly, the statute provides (R. S., Sec. 2350) that, "only one entry" by the same person or association of persons is authorized. Upon the facts which this petitioner states, the case furnishes a clear violation of the spirit if not the letter of this provision, because he furnished himself the money for the payment of all the entries for his own use.

Notwithstanding, however, that these entries might be canceled, it appears to me doubtful whether the claimant should be allowed to invoke these illegalities or irregularities to secure such cancellation for his relief. The petitioner must be held to know the law and probably, also, the regulations, the provisions of which are very plain, and it clearly appears that he participated in a part at least of the infractions of law and regulations above mentioned, since he made or knew of the arrangement for the action the entrymen took before it was taken; and there is indication that he knew, or is chargeable with notice, that they did not rightfully have a preference right of entry by having opened and improved coal mines on the land, because the petition states that soon after his purchase he employed one Louis R. Fry, a miner and geologist, "to develop said lands and open mines thereon and to erect ovens for coking the coal," and that said Fry at once engaged a large force of prac tical miners "in examining the lands and prospecting the same by means of shafts and tunnels;" by means of which he discovered that there was no coal on the land, and the necessity for which, of course, proved to him in the beginning that no mines of coal had been opened.

To have entitled him to claim the advantage resulting from showing that he was imposed upon and cheated by the entrymen from reliance. upon their affidavits that they had opened and improved a mine as is claimed, he should have been prompt to act, when he discovered that those affidavits were false. This was, of course, discovered when the necessity for examining and prospecting in order to find a mine was shown. Instead of appearing then to have been surprised by the naked aspect of the land and the utter want of a mine, he proceeded to expend a large sum of money in prospecting to discover a mine. So that the facts can not but raise some suspicion that he bought in the belief that, as these lands lay within the coal region, a mine would be found there; a belief doubtless encouraged by the entrymen, in order to secure the sale, and not shown to be false until the examination of the experts discovered that by glacial action the coal veins once existing upon the lands had been eroded, so that small and valueless pockets only remained.

These circumstances tend to impeach in some degree the equitable claim of Mr. Allen, although it would appear also to be quite certain that his agent was grossly imposed upon, unless he himself colluded with the entrymen.

But there is another reason which renders it impossible for the Department to entertain the application, as a matter of law. The entries were made in the names of the four entrymen, each taking the particular tract to which he claimed a preference right of purchase; and after their entries were made, each conveyed, by deed with covenants, to Mr. Allen, in consideration of a purchase price paid to them beforehand, which embraced the amount necessary to be paid the government. Thus, in fact, Allen did not pay any money to the government, but to the entrymen; and in law he must derive his right to claim repayment from the United States through the deeds of the several entrymen to him. He can, therefore, have no better right than they. But it is very obvious that, according to familiar principles, oftentimes decided, no right to claim repayment exists in favor of an entryman who has procured the allowance of the entry by a false affidavit on his own part, and the procurement of false affidavits in corroboration. Walsh, 5 L. D., 319).

(Joseph

The statute which confers a jurisdiction on the Department to order repayment from the Treasury where entries have been erroneously allowed and can not be confirmed, does not authorize repayment in any such case, and it necessarily follows that your decision in that respect was correct. Being so, I think it also follows that you were correct in refusing to cancel the entries. Undoubtedly, the government had the option to cancel these entries, which were voidable for illegality. But, inasmuch as the price which was paid is the highest required by any law and can not be returned to the purchaser, as above decided, it is a fair obligation upon the government to leave the entries to remain and pass them to patent.

There are circumstances about this case which seem to indicate that Mr. Allen, the transferee, was much imposed upon, and was himself, perhaps, quite innocent of any wrong intent. But he must be held answerable for the knowledge and the neglect of his agent, and he does not himself think that his agent is disloyal to him. There is an appeal to the grace of the government in his favor, lying in the fact that he has paid a grossly excessive price for the land, a price based upon the supposition that it contained valuable mines of coal which has proven to be a delusive expectation. But whatever claim may rest upon this foundation is addressed entirely to Congress, the maker of the laws which limit the jurisdiction of the Deparment, and the only source from which the petitioner can rightfully obtain relief. The decision is affirmed.

RIGHT OF PURCHASE UNDER SECTION 7, ACT OF JULY 23, 1866.

NAPTHALY v. BREGARD ET AL.

The right of purchase conferred by the seventh section of the act of July 23, 1866, is subject to the following conditions: (1) the claimant must have purchased the land from Mexican grantees or assigns; (2) the purchase must have been made in good faith and for a valuable consideration; (3) the claimant must have used, improved, and continued in the actual possession of the land according to the lines of original purchase; and (4) no valid adverse right or title, except that of the United States, should exist.

A purchaser in good faith is one who purchases in the sincere belief that he is acquiring a good title to the land purchased, and who is not chargeable with notice of defects in the title, which may operate to defeat it, or with knowledge that he purchases only a speculative title.

The right of purchase conferred by said section does not relate back to former claimants, but extends only to persons then holding lands which they had purchased in good faith, and for a valuable consideration before the rejection of the grant, and who had used the land so purchased, improved it and continued in the actual possession thereof within defined limits, from the time of their purchase to the date of the act.

The preferred right of purchase from the government is conferred only upon one who has purchased from Mexican grantees or assigns a definite tract of land, or such a tract as may be defined by the terms of the grant. The conveyance of an undivided interest, in the absence of evidence showing partition or actual occupation within definite limits, will not carry with it the right of purchase.

Secretary Vilas to Commissioner Stockslager, February 4, 1889.

I have before me on appeal from the decision of your office, dated March 2, 1887, the case of Joseph Naphtaly v. L. L. Bregard and others, involving the question of Naphtaly's right to purchase under section seven, act of July 23, 1866, some twenty-one described tracts of land in T. 1 N., and T. 1 S., R. 2 W., M. D. M., California.

The township plats of survey for said townships were filed in the local office on July 30, 1878, for township one south, and on October 5, 1878, for township one north. These plats were withdrawn October 24, 1878, restored February 24, 1882, suspended March 9, 1882, and the suspension removed April 16, 1883.

Naphtaly filed his application to purchase August 10, 1883. Mary A. Jones-one of the defendants herein-on July 16, 1883, applied to purchase under the same act, a portion of the land included in Naphtaly's application. The right to purchase is based on an alleged Mexican grant to three brothers, Innocencio, Jose, and Mariano Romero.

Naphtaly claims title under Innocencio Romero and Mrs. Jones under Jose Romero.

These applications to purchase are resisted by divers parties who assert rights under the timber-culture and settlement laws and by the Western Pacific Railroad Company.

Mary A. Jones, in addition to claiming a right to purchase under said act, claims a certain part of the land in controversy under the home

stead laws. She alleges settlement in 1866 and continuous residence since that time on the land claimed as a homestead. Some of the other defendants allege settlement in 1875, and final certificates have been obtained in several cases of soldiers additional homestead entries. Some of the defendants are simply applicants to file or enter, while others have tendered final proof and claim compliance with the settlement laws and the right to final certificates.

The land involved is within the twenty-mile limit of the reservation of January 30, 1865, for the Western Pacific Railroad, and the greater part of sections nine and fifteen is within the Highley survey of the Moraga grant.

The local office decided that the odd sections and parts of odd sections involved herein, and not included within said survey, belonged to the railroad; and that Naphtaly was entitled to purchase under the provisions of said act, the balance of the land described in his application. The decision of your office reverses the decision of the local officers, rejects the applications to purchase, and leaves the questions as to the rights of the Western Pacific Railroad and other claimants to future adjudication.

Naphtaly, Mary A. Jones, and the heirs of John M. Jones deceased, have appealed.

The application of Mary A. Jones, widow and devisee of John M. Jones deceased, may properly be considered in this case, as she has submitted evidence herein in support of her supposed right to purchase under said act a certain portion of said tract claimed by Naphtaly. The homestead claim of said Mary A. Jones, and the various claims of the other numerous defendants herein, are considered only so far as they affect the claimed right of said applicants to purchase under the act of July 23, 1866. So far as said various claims for different portions of the land involved, conflict with each other, they have not been and will not be considered herein.

The claim of each of the applicants is based on the same alleged Mexican grant and are so alike in some of their essential features that the conclusion reached in the Naphtaly case disposes of the case of Mrs. Jones.

The seventh section of the act of July 23, 1866 (14 Stat., 218) is as follows:

That where persons in good faith and for a valuable consideration, have purchased lands from Mexican grantees or assigns, which grants have subsequently been rejected, or where the lands so purchased have been excluded from the final survey of any Mexican grant, and have used, improved, and continued in the actual possession of the same as according to the lines of their original purchase, and where no valid adverse right or title (except of the United States) exists, such purchaser may purchase the same, etc.

Said applications were rejected by your predecessor in oflice, on the ground, (1) That there was no grant or semblance of a grant by Governor Micheltorena to the Romeros as claimed, and consequently, that 16181--VOL 8-10