Platte district, Nebraska, before me on appeal from the decision of your office dated December 13, 1886, the record discloses the following facts:

Said entry was made October 11, 1884, and is illegal in that Boal did not make the affidavit required of an applicant by section two of the act of June 14, 1878, (20 Statutes 113), either before the register or receiver, or any other officer authorized to administer oaths in the district where the land is situated. In fact he did not take the required affidavit in said district or elsewhere.

The entry was made through the agency of one Fred C. Powers. On September 7, 1886, special agent George B. Coburn obtained from Boal an affidavit in which he says that he did not go to Nebraska to make entry but signed the papers in Illinois; that the entry was made in good faith and with the intention of raising trees on the tract and that he had no knowledge of the timber-culture law and supposed the entry was perfectly regular.

On September 28, 1886, said special agent reported the facts in the case to your office and recommended "cancellation of entry unless claimant desired to perfect same by filing legal affidavit, in which case he should be allowed a reasonable time for that purpose, upon promptly signifying his desire so to do." He further says-"I think he (Boal) did this in good faith not knowing the requirements of the timber-culture law."

On October 9, 1886, the register at North Platte, Nebraska, transmitted to your office Boal's application-signed September 30,-to be allowed to file the affidivit required by law to make the entry valid. In this application, which is sworn to by the applicant and corroborated by the oath of James F. Boal, applicant states, that about October 5, 1884, he was informed by his father James F. Boal,-who had been looking at land in Keith County, Nebraska that he, (Jas. F.,) had been informed by Fred C. Power, that residents of Illinois without going to Nebraska, or appearing before the land officers, could make legal timber-culture entries; that said Powers was a land agent and locator and if affiant desired would send him papers to sign and return and he (Powers) would make filing in full compliance with the timber-culture law; that he received and signed the papers in Illinois and returned them to Powers with fee inclosed, and received from Powers receiver's receipt No. 5487 dated October 11, 1884; that he took the claim in good faith and has complied with the law as to plowing and cultivation, and that he had no knowledge that the entry had not been made in full compliance with law until informed to the contrary by Coburn.

Claimant's entry was held for cancellation on the report of special agent Coburn, and in the decision appealed from his application is denied on the ground that if he "was misled and deceived as he avers, it was through no fault of the United States, but presumably due to his

ignorance of the law (which he is supposed to know) which does not excuse his error."

All men are presumed to know the law and the general rule unquestionably is that ignorance of law is no excuse. Some exceptions, however, have been made to this rule, where ignorance really existed and no intentional wrong has been done, and no actual fraud perpetrated. In the case of Ferguson v. Hoff (4 L. D., 491) ignorance of the same provision of the timber culture act shown in this case was excused. Appellant will be allowed sixty days from receipt of notice of this decision within which to make the required affidavit. When made, it will relate back to the date of entry.

The decision of your office is therefor reversed.

PLACER MINING CLAIM-EXPENDITURE.

TRICKEY PLACER.

Work done on a ditch outside of a placer claim, and prior to the location thereof, cannot be accepted in proof of the required expenditure, where it is apparent that such ditch was not made for the purpose of developing the claim.

Acting Secretary Muldrow to Commissioner Stockslager, July 21, 1888.

I have considered the appeal of The Alice Mining Company from the decision of your office of January 27, 1887, holding for cancellation the mineral entry of said company No. 2751, for the E. L. Trickey Placer claim, located in the SW. 4 of Sec. 2, S. of Sec. 3, N. of Sec. 10, and NW. of Sec. 11, T.3 S., Range 74 W., 6 P. M., Upper Fall river mining district and Central City land district, Colorado.

Your office hold the entry for cancellation upon the grounds, that "it does not appear that the expenditure required by Sec. 2325, U. S. Revised Statutes, has been made upon this claim, and in addition thereto, it is not satisfactorily shown that any mineral has been discovered therein."

In response to a letter from your office dated October 19, 1886, the surveyor general certifies that the value of labor and improvements upon this claim is not less than $500, and that said improvements consist of "a one-half interest in a mining ditch 8,000 feet in length in earth and rock, starting from Fall River." From the approved plat of survey it appears that said ditch is situated entirely outside of the limits of the "E. L. Trickey Placer claim" and runs through a large part of the "Texas Placer claim", which is contiguous to and north of the "Trickey Placer Claim", and the deputy surveyor in his report states that "no workings have been done on the claim itself (the Trickey Placer), but a ditch has been constructed from a point on Fall River, about a mile above the claim, and runs within a short distance of the north

side of the claim, and that said ditch was built for the purpose of working this and other claims, and that any part of the "Trickey Placer claim" can be reached by the ditch described above.

The "Trickey Placer claim" and the "Texas Placer claim" are both owned by appellant and a one-half interest in the said ditch, which is estimated to have cost $5,000, is allotted to each.

It further appears, however, that said ditch was constructed during the period of time from May to December, 1881, inclusive, and the claim involved in this case (Trickey Placer) was not located until nearly three years thereafter, August 1, 1884. It is difficult to understand how the ditch could have been built in part for working this claim so long a time before the location thereof. It certainly seems improbable, that costly improvement would have been made for the development of a claim not located and which was suffered to remain unlocated for nearly three years, during which it was subject to location and entry by outsiders not interested in said improvements. There is no explanation of this circumstance in the record.

The cases, in which work done outside the claim, has been held to be "as available for holding the claim as if done within the boundaries thereof," are cases where the work has been done in whole or in part, for the purpose of prospecting or developing the particular claim involved in the controversy. Chambers v. Harrington (111 U. S., 350).

It is true the deputy surveyor reports that the ditch "was built for the purpose of working this and other claims," but this is a matter as to which he doubtless had no personal knowledge and his statement was evidently based upon those of interested parties.

Without passing upon the question whether the work relied on in this case could be held as available for holding the claim if it had been done after the location thereof and in part for its development, I am of the opinion, that under the circumstances of this case and in the absence of all explanation, it should not be so held. The purpose of the law in requiring improvements, was to compel "every person who asserted an exclusive right to his discovery or claim to expend something of labor or value on it as evidence of his good faith and to show that he was not acting on the principle of the dog in the manger." Chambers v. Harring ton, supra.

To allow claims upon which as in this case, no work whatever has been done and which are and for an indefinite time may continue to be wholly unused for mining purposes, to be tacked on from time to time to improvements made long before their location, would open the door and let in the evil which the law was designed to remedy.

This claim embraces all the land between said "Texas Placer" and the Fall River and extends 250 feet beyond said river, no work had been done upon it, and it does not appear that mineral has been discovered on it.

These facts clearly indicate that the claim was not located for placer mining thereon, but with a view to the ownership and control of the banks of the river, which runs through the entire length of the claim, parallel with and about two hundred and fifty feet from its southern boundary.

The decision of your office is affirmed.

MINING CLAIM-SCHOOL LAND-RES JUDICATA,

BOULDER AND BUFFALO MINING CO.

Though the language of a decision may in terms purport to definitely settle the question as to whether a certain section of land was excepted from the school grant because of its known mineral character, yet such question is in fact only res judicata as to the land actually involved in the case wherein such decision was rendered.

Secretary Vilas to Commissioner Stockslager, July 24, 1888.

In the matter of the application of the Boulder and Buffalo Hunter Consolidated Mining Company, for patents on entry No. 141, Buffalo Hunter mineral claim, and entry No. 142, Boulder lode mineral claim, appealed from the decision of your office, dated Jan. 14, 1887, the record discloses the following facts.

Said claims are in the E. & N. W. 1, and the N. W. of the N. E. † of Sec. 16, T. 22 S., E. 72 W. 6. P. M. Pueblo Colorado land district. After giving the notice and making the proof usually required in such cases, said entries were allowed on December 31, 1883, and the register's final receipts therefor obtained.

The survey of said township was approved February 10, 1872, and said section sixteen, was returned as agricultural land. The State of Colorado, notwithstanding her presumptive right to the land covered by said entries under the grant to the State of the 16th and 36th sections for school purposes, had no special notice of the proceedings taken by said mining company, and was not made a party defendant therein. It seems to have been taken for granted by said company that the mineral character of the land in said section had been authoritatively settled in the case of Town-site of Silver Cliff v. the State of Colorado decided December 15, 1879, by Acting Commissioner Armstrong (Copp's M. L. 279), and the company, at the time of making proof, tendered no evidence of the mineral character of the land entered; nor was there any demand or suggestion on the part of the local officers that such proof was necessary.

On February 16 and 17, 1886, your office held said entries for cancellation, on the ground that the evidence on file did not show that the land entered "was known to be valuable for mineral prior to the date

of the admission of Colorado as a State, to wit, August 1, 1876," and that said land "passed to the State under the provisions of the act of Congress approved March 3, 1875,"

Subsequently appellant made a motion for review in your office, and asked that said entries be passed to patent on the evidence in the case, and in support of its motion insisted that the case of Town site of Silver Cliff e. The State of Colorado, determined the character of the land in sail section sixteen, and that it did not pass to the State for school purposes. Appellant further asked-if its position as to the effect of said decision was not deemed correct,-that further time be given it to enable it to show that the mineral character of the land entered, was known long before the admission of Colorado, and consequently that it did not pass to the State under the provisions of said act of March 3, 1875.

The decision of your office from which this appeal is taken, denied the motion for review and failed to grant appellant leave to make supplemental proof in support of its claim.

The language used by the Assistant Commissioner, in deciding the case of Townsite of Silver Cliff v. The State of Colorado, is very broad and might quite naturally warrant the conclusion that the character of all the land in said section sixteen, had been authoritatively adjudicated and determined. The language used is as follows:

*

The declaration of the claim of the town was filed, and after due notice to the State, a hearing was bad, commencing May 8, 1879, to determine the character of the land in said section sixteen, and whether it was known as mineral land prior to survey. At said hearing all parties were present. The testimony submitted shows beyond a reasonable doubt that the land was known as mineral as early as 1864, and that at different times between that date and 1878 various parties prospected the land, took out specimens of mineral, some of which were assayed and found to yield a good return in silver with traces of gold. The State cross-examined the witnesses but introduced none. * The land in question is clearly not within the grant to Colorado for school purposes, but is government land, and subject to sale only under her laws. In said townsite decision there is no description given of "the land in question" in that case, but an inspection of the record in said case shows that only the south half of said section was in controversy, and the language of the Assistant Commissioner must be construed as applying only to the land in said south half.

Your decision, so far as it holds appellant's proof insufficient, is there. fore concurred in. No good reason however can be discovered for refusing to allow appellant to make supplemental proof on giving due notice to the State of Colorado, of its intention so to do, and of its ap plication for patents for said land. Appellant will therefore be allowed sixty days from receipt of notice of this decision within which to institute the proper proceedings in the premises against said State.

The decision of your office is modified accordingly.