under like circumstances and conditions, and upon similar proceedings, as are provided for vein or lode claims; but where the lands have been previously surveyed by the United States, the entry in its exterior limits shall conform to the legal subdivisions of the public lands.

Sec. 2330 [in part]. Legal subdivisions of forty acres may be subdivided into tenacre tracts; and two or more persons, or associations of persons, having contiguous claims of any size, although such claims may be less than ten acres each, may make joint entry thereof; but no location of a placer claim, made after the ninth day of July, eighteen hundred and seventy, shall exceed one hundred and sixty acres for any one person or association of persons, which location shall conform to the United States surveys.

It is argued by counsel for the entryman that, by the employment of the words "as near as practicable," it is to be inferred that the provision of the later statute (now Sec. 2331) was intended as a modification of the requirement, by the earlier (now Secs. 2329 and 2330), of strict conformity to the public survey lines, and that the presence of the further clause of the same section, "where placer claims can not be conformed to legal subdivisions, survey and plat shall be made as on unsurveyed lands," has the effect to strengthen their contention that section 2331 relates solely to placer claims upon surveyed lands. Notwithstanding this, counsel urge that the section, by its terms, invests the land department with a sound discretion to determine the practicability of conformity, by reason of their peculiar situation, of the locations here in question.

If it were correct, as contended, that the section relates exclusively to locations upon surveyed lands, it is certain that none of its provisions could be successfully invoked in favor of these locations, upon unsurveyed lands. But, the Department does not believe it has such limited application. A comparison of the language of sections 2329, 2330, and 2331, which now constitute the body of the mining law upon this subject and by which the land department is governed, leads to another conclusion. Section 2329 provides that where the lands have been surveyed the claim shall conform to the legal subdivisions, and section 2330 prescribes conformity with the United States surveys. But section 2331 is expressed in terms of wider scope and broader import. It requires "all placer mining claims" to be conformed, "as near as practicable," to the system of “public-land surveys, and the rectangular subdivisions of such surveys." Its evident purpose is to supplement the preceding provisions and provide for all cases not otherwise provided for, and among these are to be included claims upon unsurveyed lands.

The first clause of section 2331 dispenses in part, as to placers which "conform to legal subdivsions," with the conditions imposed by section 2329; and the statute continues: all placer mining claims located after May 10, 1872, shall conform "as near as practicable" to the system of "public-land surveys, and the rectangular subdivisions of such surveys." The inference fairly is that this clause is intended to make

provision for all other placer claims than those provided for in sections 2329 and 2330, viz., those upon surveyed lands which for sufficient reasons can not practicably be conformed "to the United States surveys" and "the legal subdivisions of the public lands," and those upon unsurveyed lands. Specific provision having first been made for those locations upon surveyed lands which may be laid according to the lines of the United States surveys, and the legal subdivisions thereof, the necessity for an adequate provision for placer locations not in that situation became apparent; and it is not to be assumed that Congress intended to supply the omission in part only, if the terms employed are broad enough to cover all cases. The Department is satisfied that the language of section 2331 is ample for this purpose. The requirement that non-conformable locations shall be laid, "as near as practicable," according to the system of public-land surveys, and the rectangular subdivisions thereof, is significant and strengthens the view that locations upon unsurveyed lands are within the purview of the statute. Both references in the section to locations upon surveyed lands, mentioned by counsel, are with respect to the requirements as to survey and plat, alone; and the restrictions as to form which Congress early took the precaution to impose in the case of placers upon the surveyed public lands obviously are with equal reason applicable to locations of the same character upon the public lands to which the lines of the surveys have not yet been, but are intended ultimately to be, extended.

It is objected by counsel that the application of the provision to locations upon unsurveyed lands would, in order that they might in "shape and position" approach anything like conformity, require the extension by claimants of the lines of the public-land surveys, from whatever distance. But the Department does not so regard the requirement. It is, that such locations must be laid, as nearly as practicable, in conformity with the system of "public-land surveys, and the rectangular subdivisions of such surveys," i. e., rectangular in form, with east and west and north and south lines, and otherwise within the limits of practicability.

Counsel cite the cases of Esperance Mining Company (10 C. L. O.. 338), William Rablin (2 L. D., 764), and Pearsall and Freeman (6 L. D., 227), to support the entry made in the case at bar. Each of those cases involved a placer location (familiarly known among miners as a "gulch" placer) upon surveyed land, laid upon and along the bed of a stream, whose banks were enclosed or surmounted by precipitous cliffs, barren of mineral, the boundaries of the location embracing and following the opposite shores. It was held that under the conditions. which there obtained, the locations could not practicably be conformed to survey lines, and the entries therefor were sustained.

It was not the intention, in the case of Miller Placer Claim, supra, and the case under review, to overrule the former decisions. In the

later cases apparently different situations were presented. If the claims here in question are "gulch" claims, within the accepted meaning of the term, and can not, by reason of their environments, practicably be conformed to the system of public-land surveys, and the rectangular subdivisions thereof, they may, upon sufficient and satisfactory showing (subject to other objection), be entered if in shape and position approximating such system as nearly as the conditions will reasonably permit.

The Wood company has now endeavored to make such showing as will bring the case within the foregoing principle. In the corroborated affidavit of its president, filed to support the motion for review, it is stated

that Hughes creek, which flows through said Discovery and Annex claims, runs through a narrow canon surmounted on either side by steep, rugged mountains, valueless for any purpose and of such an altitude as to preclude their use for any purpose, even for grazing.

That said placer claims are located upon unsurveyed public lands and were when located upwards of forty-five miles, over a mountain road, from the nearest surveyed public land. That since said application for patent was made some public-land surveys have been made at a distance of about twenty miles from these claims, and as yet have not been accepted.

That only that portion of the ground included between the foot of either mountain enclosing Hughes creek is of any value for placer mining purposes or containing deposits of auriferous gravel, and if claimant were compelled to conform its locations to the system of public-land surveys or to anything approaching near that system the result would be that in order to obtain two acres of placer ground eighteen acres of absolutely valueless and worthless mountain side would necessarily be included in each claim or mining location of twenty acres. And if an association sought to locate ninety or one hundred acres of mining ground, as in this case along a winding stream like Hughes creek, it would be utterly impossible to conform or even pretend to conform with the system of public-land surveys, especially so where there existed no survey to which the prospector might conform his location.

The showing is hardly sufficient to establish the existence of the conditions necessary to bring the locations within the purview of the qualifying provision of the section. Whilst it is affirmatively alleged that Hughes creek, which flows through the claims, runs through a narrow canon between steep, rugged mountains, devoid of placer mineral deposits and valueless for any purpose, much of the showing with respect to the situation and scope of the claims themselves, the depth and abruptness of the canon or gorge, etc., is more by way of implication than direct averment. Every feature of the conditions relied upon to entitle the locations to pass to entry in their present form and position should be explicitly and directly set forth. If reasonably obtainable, a report, under oath, with respect to the physical conditions should be procured from the deputy mineral surveyor who surveyed the claims. Your office will therefore call upon the entryman, in the usual manner, to submit, within a reasonable time, a further showing in the premises. If the additional showing shall be

submitted within the time allowed, the case will be promptly retransmitted to the Department for its further action; otherwise, the entry will be canceled, as ordered.

The question with respect to the improvements upon the claims, raised by the appeal from your office decision of November 29, 1902, will be considered if the case is resubmitted to the Department upon the showing called for.

MINING LAWS AND REGULATIONS THEREUNDER.

CIRCULAR.

The circular of United States mining laws and regulations thereunder, approved July 26, 1901 (31 L. D., 453), reapproved for reprinting in pamphlet form December 18, 1903, without change except the insertion of the word "public" in the seventh line from the bottom of page 23 thereof, between the words "unoccupied" and "lands" in said line, and the insertion, following page 23 of said circular, of copies of the acts of May 27, 1902 (32 Stat., 263), February 12, 1903 (32 Stat., 825), and March 3, 1903 (32 Stat., 998), this legislation having been enacted since the former approval of said circular.

RAILROAD GRANT-ADJUSTMENT-ACT OF JULY 1, 1898.

NORTHERN PACIFIC RY. Co. v. SPARLING.

The completion of a pre-emption filing subsequently to the passage of the act of July 1, 1898, under a declaratory statement filed prior to said act, for land listed by the Northern Pacific Railroad Company within the indemnity limits of its grant, is equivalent to an election by the claimant to retain the land, and the fact that the land department failed to list the land for relinquishment by the company until after the intervention of another claim for the land, will not prevent an adjustment being made under said act on account of the claim pending at the date of the passage of the act.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) December 21, 1903. (F. W. C.)

The Northern Pacific Railway Company has appealed from your office decision of June 20, last, denying its application for adjustment of conflicting claims to the SW. ‡ of NE. 4, S. of NW. and NW. ‡ of SW. 4, Sec. 3, T. 30 N., R. 37 E., Spokane land district, Washington, under the provisions of the act of July 1, 1898 (30 Stat., 597, 620). The tract in question is within the indemnity limits of the grant made in aid of the construction of the Northern Pacific railroad and was included in the list of selections filed on account of said grant May 25, 1885.

June 3, 1895, Mrs. Hephzibah Norman tendered a preemption declaratory statement for this land, alleging settlement thereon September 29, 1884, prior to the railroad indemnity selection. A contest arose upon said application, which was pending undisposed of on July 1, 1898, before this Department on appeal from your office decision in favor of the preemption claimant.

July 12, 1898, the Department affirmed your office decision directing that Mrs. Norman be permitted to complete filing for the land, in which event the company's selection would be canceled. This action was evidently taken without knowledge of the passage of the act of July 1, 1898. Acting thereunder, Byron T. Norman, for himself and the heirs of Hephzibah Norman, deceased, completed preemption declaratory statement for this land August 13, 1898, whereupon the company's indemnity selection was canceled. No further action appears to have been taken toward completing title to the land under said preemption declaratory statement, and on October 11, 1900, the local officers permitted one Richard Sparling to make homestead entry for the land.

Your office decision of June 20, last, considered only the conflicting claims of Sparling and the railway company to this land and denied the application for adjustment under the act of 1898, because of the fact that the claim of Sparling was initiated long after the passage of said act; from which action the company has appealed to the Department. From the above recitation it is apparent that the departmental decision of July 12, 1898, and all action taken thereunder was in plain violation of the provisions of the act of 1898, which directed the adjustment of conflicting claims similar to those then being asserted to this land thereunder. The railway company accepted the act of 1898, and the action of the heirs of Mrs. Norman, deceased, in completing preemption filing for the land on August 13, 1898, more than a month after the passage of the act, is equivalent to an election on their part to retain the land, and the mere fact that your office has failed to list the land.for relinquishment by the railroad company does not prevent an adjustment now being made under said act of 1898. Your office decision of June 20, last, is therefore set aside and vacated and the case is herewith remanded with direction that this tract be listed for relinquishment by the railway company under said act, on account of the individual claim of the heirs of Hephzibah Norman, which was the individual claim that was being asserted to this land at the time of the passage of said act.