reason of such ownership to the present shore line of the lake would be to give her over six hundred acres in addition to the 69.55 acres above mentioned.

On the facts as they appear in the record, this, in my judgment, would be to award her a large body of land to which she is not entitled under any rule of law.

On the evidence submitted, you find that the original meander lines of Goose Lake, in Township 39, "were improperly located, at a time of extreme high water, but that the surveyor had no knowledge that such was the fact," and you recommend that the application of the settlers for survey of the lands herein referred to be granted.

It may be that the determination of the rights of property in this land can only be finally made satisfactorily by a judicial tribunal. But to initiate a case upon which such a determination can be invoked, it is better that the lands should be surveyed and properly defined and described as a part of the public domain. I think it must be regarded as public land; and, so believing, the only proper course to give effect to the public right is to survey it and proceed in accordance with the law and regulations.

Upon a full consideration of the record, I concur in your finding of fact and in your recommendation, which is accordingly approved.

FINAL PROOF-EQUITABLE ADJUDICATION.

JAMES H. WARNER.

An entry may be submitted to the Board of Equitable Adjudication, in the absence of protest, where through mistake Sunday was designated as the day on which final proof would be submitted, and said proof was made the day previous. First Assistant Secretary Muldrow to Commissioner Stockslager, Decem ber 18, 1888.

I have considered the appeal of James H. Warner from the decision of your office, dated September 21, 1887, refusing a reconsideration of your office decision dated June 20, 1887, suspending his pre-emption cash entry of the SW. of Sec. 14, T. 108 N., R. GS W., dated December 13, 1884, Mitchell, Dakota Territory, and requiring new publication and new proof, because the proof was taken on Saturday, the 8th day of November, 1884, instead of November 9th, the day advertised.

The final proof shows that claimant was duly qualified to make said entry, and that he had complied, in good faith, with the requirements of the pre-emption law as to inhabitancy, improvement, and cultivation. The local officers accepted said proof, received payment for the land, and issued cash certificate therefor.

The claimant has filed with his appeal, his own affidavit, the affidavit of one Hallenbeck, and the affidavit of Judge Rice, before whom the

final proof was taken. These affidavits allege that the day designated in the published notice for taking said proof, was Sunday; that the error was the mistake of the register or printer; that it was not discov ered until just before the time for taking said proof; that claimant cousulted with several attorneys, and with the officer before whom the final proof was advertised to be taken, and was advised to make the proof on Saturday immediately preceding the day advertised; that be acted upon said advice and made said proof which was accepted by the local officers; that there has never been any protest filed or any objection made by third parties to said entry, and the claimant alleges that he is a poor man, and it would be a great hardship to require him to make new proof, as his witnesses have gone away from the vicinity of said land.

After a careful consideration of the whole record, I am of the opinion that there has been a substantial compliance with the requirements of the law, and the defect may very properly be cured by the action of the Board of Equitable Adjudication. You will please refer said entry to said Board for its consideration under the appropriate rule.

The decision of your office is modified accordingly.

LAND RETURNED AS MINERAL-BURDEN OF PROOF; RESIDENCE.

KANE ET AL. v. DEVINE.

The burden of proof is upon an agricultural claimant for land returned as mineral; but after a hearing before the local office as to the character of the land, decided in favor of the agricultural claimant and not appealed from, the burden rests with a mineral claimant who alleges a subsequent discovery of mineral.

A charge that the settler has changed his residence is not sustained by evidence which shows that the alleged absence was the result of judicial compulsion.

First Assistant Secretary Muldrow to Commissioner Stockslager, December 18, 1888. 1

The land involved herein is the NE. of SE. 1, Sec. 28, T. 20 N., R. 12 E., M. D. M., Sacramento, California.

The whole of said township was returned as mineral, and the plat thereof filed in the local office on February 23, 1878.

On May 23, 1878, Thomas Devine made homestead entry for said tract, together with the N. 4 of SW. and SE. of NW. of Sec. 27, in the same town and range.

On March 4, 1879, a hearing was held in the contested case of Thomas Devine v. Alfred Smith, whose pre emption claim conflicted with Devine's said homestead entry and the grant to the Central Pacific Railroad Company.

Upon the testimony submitted the local officers awarded the land in section 27 to the railroad company, and allowed Devine to perfect his entry upon the tract involved. From this action Smith appealed. No

action with reference to this appeal was taken by your office. You state that:

Instead of disposing of said appeal, this office, by letter "N" of October 11, 1882, finding that the character of the land above described was called in question by numerous affidavits, ordered a thorough investigation to determine the relative value and character of the land.

The affidavits referred to were made in September, 1882, by S. B. Davidson (claiming as owner of two certain mineral claims located upon the said tracts) and several others.

A hearing was had in pursuance of your said office letter of October 11, 1882. This hearing was had before a notary public on January 22, and continued upon different days until February 10, 1883.

The local officers found from the testimony transmitted the land in section 27 to be mineral, and that in section 28, i. e., the forty acres in dispute, to be agricultural in character.

No appeal was taken from this decision.

On May 12, 1884, the local office transmitted an application, purporting to be an application of the trustees and inhabitants of Sierra City townsite, to contest the homestead entry of Devine. This application is based upon the allegation that Devine had changed his residence and been absent from the land from October 1, 1980, to May 15, 1881, and from June 6, 1881, to June 7, 1882, and that he had agreed to sell and convey after final entry certain portions of the tract. This appli cation was sworn to by one J. W. Kane (who was an affiant in support of the said affidavit of Davidson), on May 5, 1884, and signed by him (Kane), as attorney. On May 19, 1881, the local officers transmitted the affidavit of said Kane, also made May 5, 1884. In this affidavit Kane avers that he has located both a lode and placer claim upon the land; that he has recently discovered valuable quartz lodes and placer mines thereon, and that since the date of said homestead entry, Devine has by "acts of violence, deadly threats and murderous attempts" completely prevented and excluded all persons from prospecting on the land. Three affidavits, in support of the foregoing, were transmitted therewith.

On May 10, 1886, your office considered the record of the said hearing had in January, 1883, and also the application and affidavits last mentioned. From office letter of said date, it appears that you were "unable to reach a satisfactory conclusion as to the real character of this tract." Thereupon, by the same letter, your office ordered a hear ing to determine the matters contained in the application and affidavits transmitted as stated, upon May 12 and 19, 1884.

In pursuance of this instruction, testimony was only submitted before the deputy county clerk for Sierra county, at Downieville. This hearing was commenced on September 6, 1886, and proceeded with at different times until October 27th following, when it was concluded.

The local office found that the land is not mineral in character, and sustained the homestead entry. This action was reversed by your office

decision of September 6, 1887, from which the homestead claimant Devine appeals.

The local officers, in passing upon the testimony submitted at the said hearing, in January, 1883, concerning the character of the one hundred and sixty acres included in Devine's homestead entry, say:

That gold in small quantities is to be found on every part of it, but the same evidence showed clearly that gold in paying quantities had never been found on any portion of this land;

that the presence of valuable mineral on the land is "only conjecture.” They find, however, that the land in section 27 is of no value for agrienltural purposes, and that Devine has cultivated a portion and made valuable improvements upon the forty acres in section 28, i. e., the tract in question. Their said decision (not appealed from) was rendered "under this state of facts."

In the record of the hearing, upon which the decision appealed from is based, I can not find any evidence that shows the land to have been occupied or used as a townsite. Your office affirms the local office in finding, "that the townsite claimants have not established their claim to any part of said land." No appeal was taken from this finding. Your finding is accordingly, in this regard, affirmed.

The mineral claimant avers, in the townsite application, that the claimant Devine had failed to maintain a continuous residence upon the tract, in that he was absent from October 1, 1880, until May 15, 1881, "on account of the murder of Alfred Smith, a claimant and inhabitant of said tract, who was found murdered thereon and his body burned,” and that "Devine again changed his residence from said tract to the State prison. . . . . on June 6, 1881, until the 17th day of July, 1883, on account of his attempted murder of Mrs. B. Zellner and Mrs. W. Busch, both inhabitants of said tract."

To what extent the claimant was absent from the tract does not clearly appear from the evidence. It, however, appears that he had been twice tried for the murder referred to, and that he had been in the State's prison. The claimant's absence from the land appears from the record to have been (as found by the local offices) "because of circumstances over which he had no control," and not for the purpose of changing his residence.

Moreover, it clearly appears that his (claimant's) wife and children continued to reside upon and occupy the tract and to which he seems to have returned after his release from jail. The mineral claimant's allegation in this regard is without force.

The allegation that the claimant agreed to convey a portion of the land upon the completion of his entry is based upon the testimony of the mineral claimant (Kane) and John F. Leary, who lived upon the tract and whose relations with the claimant appear to have been unfriendly.

He (Kane) states that in 1880 the claimant and his attorney made an

arrangement at Sacramento with one Busch, who had appeared there to contest his (claimant's) entry, whereby about one-third of the tract was to be conveyed to Busch, if the latter would allow claimant to "get a homestead patent." and that said Busch went into possession by his brother and two others, who built three houses on the land. The mineral claimant, also, swears that the claimant agreed to convey after final entry a lot upon this tract to the said Leary.

Leary swears that, while the claimant was in the State's prison, which appears to have been in 1881, his (claimant's) wife agreed to sell to him. (Leary) a lot for $100 and to convey the same after final entry; that the claimant ratified this agreement, and that he (Leary) in accordance therewith went into possession of said lot and built a house thereon. The record does not, in my opinion, sustain this charge.

The testimony shows that considerable trouble had existed between the claimant and some of the said residents upon the tract, and tends in my opinion to show that said parties went on the tract regardless of the claimant's claim. The claimant's wife testifies that one of the parties, who, as the contestant states, took possession under Busch, was notified not to build upon the land. The witness Leary admits on cross examination that the claimant did not fulfill his promises, and ordered him to move his building from the tract, while the claimant swears positively that he never "offered" the said lot to Leary or anybody else.

The greater part of the very voluminous testimony was submitted for the purpose of determining the character of the land. The mineral claim- ant (Kane) and another, on April 29, 1884, located the entire forty acres as the Kentucky placer claim, and on May 3, following, he (Kane), located the Golden Monarch lode claim upon the tract. In support of the allegation that the land was mineral in character, a number of witnesses were examined. The testimony of these witnesses was to the effect that the land was mineral in character; that it lies in a great gold belt; and that it is surrounded by valuable mines. A number of said witnesses stated that they had recently examined the land and found three well defined ledges of gold bearing quartz; that the principal lode, the said Golden Monarch, extending across the tract from southeast to northwest, is about two feet wide; that the other two ledges are each about one hundred feet from the Golden Monarch and parallel thereto. Considerable testimony was produced showing the value of this quartz, and a number of pieces of the same were made exhibits for the mineral claimant in the case. One witness states that this quartz would pay $100 per ton. It was also shown on behalf of the mineral claimant that the gravel taken from what was called a shaft upon the tract showed the presence of gold in paying quantities. It was esti mated that this gravel would pay "about six dollars a car."

The witnesses for the claimant all assert that the land is not mineral. Several of them swear that they examined the land with reference to both its quartz and placer value, and state, in effect, that but a faint