located upon any lands in Alaska. lands in Alaska. No such locations will, therefore,

be allowed by you.

Full instructions with reference to the general homestead law will be found in the general circular of July 11, 1899, as well as special instructions under the act of May 14, 1898 (30 Stat., 409), concerning homesteads, etc., in Alaska, and will, so far as applicable, govern the making of entries and proofs under this act, except as modified herein. The act of 1898, supra, is amended so as to provide that no entry shall be allowed extending more than 160 rods along the shore of any navigable water, and to provide that no homestead entry shall be allowed for more than 320 acres.

In executing surveys for homestead applications the instructions now prevailing will be followed and the limit of 160 rods as to frontage will be measured along the meandered line of said frontage.

The form of the tract sought to be entered, if upon unsurveyed land, is prescribed in the act as follows:

If any of the land is unsurveyed, then the land. must be located in a rectangular form, not more than a mile in length and located by north and south lines run according to the true meridian.

The above is construed to mean that the boundary lines of each entry must be run in cardinal directions, i. e., true north and south and east and west lines by reference to a true meridian (not magnetic), with the exception of the meander lines on meanderable streams and navigable waters forming a part of the boundary lines of the entry. Thus a frontage meander line, and other meander lines which form part of the boundary of a claim, will be run according to the directions in the Manual, but other boundary lines will be run in true east and west and north and south directions, thus forming rectangles except at intersections with meander lines.

The limit of one mile in length for each entry is held to be 80 chains in aggregate easting or westing, or 80 chains in aggregate northing or southing.

In other respects the rules previously adopted to govern surveys of claims under the act of May 14, 1898, will continue to be followed by you, of course taking into consideration the limitations as to area of claims.

Every person who is qualified under existing laws to make a homestead entry of the public lands of the United States, who has heretofore settled upon any of the unsurveyed public lands of the United States in the district of Alaska, with the intention of taking the same under the homestead law, shall, within ninety days from date hereof, or prior to the intervention of an adverse claim, file the record of his location for record in the recording district in which the land is situated, as provided by sections 13 to 16 of the act of June 6, 1900 (31) Stat., 321, 326 to 328).

Every such person who hereafter settles upon any of the said unsurveyed land, shall, within ninety days from the date of settlement, or prior to the intervention of an adverse claim, file the record of his location for record in the recording district in which the land is situated, in the manner above stated. Said record shall contain the name of the settler, the date of settlement, and such a description of the land settled upon, by reference to some natural object or permanent monument, as will identify the same.

If at the expiration of the time required under sections 2291 and 2292, R. S., and as modified by section 2305, R. S., or at such date as the settler desires to cummute under section 2301, R. S., the public surveys have not been extended over the land located, the locator may secure patent for the land located, by procuring, at his own expense, a survey of the land, which must be made by a deputy surveyor who has been duly appointed by the surveyor-general, in accordance with section 10 of the act of May 14, 1898 (30 Stat., 409).

When the survey is approved by the surveyor-general under authority of this office, the same rules should be followed as in soldiers' additional certified rights, in addition to which the settler must furnish the required proof of residence and cultivation.

You will use the regular homestead and final proof blanks (forms 4-007, 4-063, 4-062 and 4-369), and continue the series of original and final numbers as now used in soldiers' additional cases, except in commutation you will continue the regular cash series of numbers, instead of the final homestead series.

When a settler desires to commute, the survey and homestead application must cover his entire claim, but only 160 acres, or less, thereof may be commuted, in which event the entry will stand intact as to the portion not commuted, subject to future compliance with the requirements of law within the statutory period of seven years.

You will require entrymen who commute to pay, in addition to the price of $1.25 per acre, the same fees and commissions as in final homesteads.

Report the entries hereunder at the close of each month in the usual way, and if you have not on hand the regular blanks for allowing entries and for your reports, you should at once make requisition on this office therefor.

Very respectfully,

Approved:

E. A. HITCHCOCK, Secretary.

J. H. FIMPLE, Acting Commissioner.

MINING CLAIM-CO-OWNER-SECTION 2324, R. S.

SURPRISE FRACTION AND OTHER LODE CLAIMS.

The interest of a co-owner in a mining claim, which may be acquired under the forfeiture provision of section 2324, Revised Statutes, is the share or interest of such co-owner in the purely possessory rights under the mining location, and not in any rights arising under an application for patent.

A co-owner who has been omitted from an application for patent to a mining claim can not, by subsequent recourse to forfeiture proceedings against the applicant co-owner, acquire any right in himself to make entry under the application. Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) April 9, 1903. (F. H. B.)

February 7, 1899, A. F. Corbin, claiming as sole transferee by sundry mesne conveyances, filed application for patent to the Surprise Fraction, Last Shot Fraction, Ida, and Spokane (among other) lode mining claims, survey No. 427, Spokane, Washington. Notice of the application was published and posted for sixty days, commencing February 11, 1899, and no adverse claim was filed.

October 19, 1900, J. S. Herrington, claiming as co-owner of said claims, commenced, pursuant to the provision of the mining laws, publication of notice of forfeiture against said Corbin, in which it was stated that Herrington had made the required annual expenditure of $100 upon each of the claims in question for the year 1899. August 7, 1901, Herrington filed in the local office proof of continuous publication of the notice for ninety days, accompanied by certified abstract of title and by his affidavit, in which affidavit it is alleged that Corbin had wholly failed to contribute his proportionate share of said annual expenditures, as demanded in the forfeiture notice, within ninety days after completion of publication thereof, or at any other time. August 17, 1901, Herrington made entry for the claim, based upon Corbin's application for patent.

October 23, 1902, your office, in passing upon the entry, stated and held that, inasmuch as it is shown by the abstract of title that at the date of the application for patent Corbin and Herrington owned joint interests in each of the entered claims, patent would be issued in the names of both.

Herrington has appealed to the Department. The appeal presents the question whether patent may, in view of the forfeiture proceedings instituted by Herrington against his alleged co-owner, now issue in the name of the former.

The provision of the mining laws with respect to the forfeiture of the interest in a mining claim of one co-owner to another is contained in section 2324 of the Revised Statutes, and is as follows:

Upon the failure of any one of several co-owners to contribute his proportion of the expenditures required hereby, the co-owners who have performed the labor or

made the improvements may, at the expiration of the year, give such delinquent co-owner personal notice in writing or notice by publication in the newspaper published nearest the claim, for at least once a week for ninety days, and if at the expiration of ninety days after such notice in writing or by publication such delinquent should fail or refuse to contribute his proportion of the expenditure required by this section, his interest in the claim shall become the property of his co-owners who have made the required expenditures.

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The required expenditures" to which the above provision refers, and the penalty in case of default, are prescribed by a preceding portion of the same section, as follows:

On each claim located after the tenth day of May, eighteen hundred and seventytwo, and until a patent has been issued therefor, not less than one hundred dollars' worth of labor shall be performed or improvements made during each year;

and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manrer as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location.

The interest of a co-owner to which the forfeiture provision of the section obviously relates, and which may be acquired under and in accordance with that provision, is such co-owner's share or interest in the purely possessory rights which subsist under a mining location, and not in any rights acquired under an application for patent.

In this case the annual expenditures which constitute the basis of the forfeiture proceedings are alleged, in the published notice, to have been made for the year in which Corbin's application for patent to the claims in question was filed. The period of publication of notice of the application ended April 12, 1899. Thereafter, so far as disclosed by the record, no bar to entry during the then calendar year interposed. The patent proceedings were not so carried to completion, and after the expiration of that year Herrington, appearing in the character of a co-owner who had made the required annual expenditures upon the claims in question, invoked the forfeiture provision of section 2324 to defeat the possessory rights of Corbin. He stands, therefore, in such an attitude of hostility to the latter as to occupy the position of a protestant who alleges a material default upon the part of the applicant for patent. In this situation the case falls within the rule applied in The Marburg Lode Mining Claim (30 L. D., 202), Cleveland et al. v. Eureka No. 1 Gold Mining and Milling Co. (31 L. D., 69), and earlier cases, and Corbin must be held to have waived and lost whatever rights he may have acquired under the proceedings upon his application for patent.

Herrington attempts, at one and the same time, to base a right in himself to entry upon Corbin's application for patent and also upon the defeat of the latter's possessory title by the forfeiture proceedings. Herrington was not a party to the patent proceedings, which were

instituted intentionally to his exclusion, and could, therefore, under no circumstances claim anything by virtue of them. By reason of the delay which followed with respect thereto, those patent proceedings, upon whosesoever rights now claimed to have been founded, have, as held above, lapsed. Or, if Corbin and Herrington were in fact co-owners, as claimed by the latter, and the forfeiture proceedings were in all respects regular (matters as to which the Department expresses no opinion), the former's possessory interest, upon which the application for patent was predicated, was defeated and determined and the application fell. In any view, the entry by Herrington was improperly allowed.

For the foregoing reasons, the entry will be canceled, without prejudice to the right of the parties, or either of them, to institute patent proceedings anew, should they so desire. The decision of your office is reversed.

OKLAHOMA LANDS-SCHOOL SECTIONS-MINING LAWS.

INSTRUCTIONS.

Of the lands ceded to the United States by the Wichita and affiliated bands of Indians under agreement ratified by the act of March 2, 1895, sections 16 and 36, 13 and 33, reserved for school purposes, are by the provisions of said act made subject to the operation of the mining laws; but the like numbered sections reserved for school purposes of the lands ceded by the Comanche, Kiowa and Apache Indians under agreement ratified by the act of June 6, 1900, are not subject to the operation of such laws.

Any lands ceded by either of said agreements, which have been heretofore set aside and reserved by the Secretary of the Interior for county-seat town sites, under the act of March 3, 1901, or which have been reserved and appropriated, by authority of law, for any other specific purpose, are not subject to the operation of the mining laws.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) April 9, 1903. (A. B. P.)

The Department is in receipt of your communication wherein you state, in substance, that numerous inquiries have been received by your office as to whether sections 16 and 36, 13 and 33, in each township of the lands opened to settlement by proclamation of the President July 4, 1901 (31 L. D., 1), are subject to the operation of the mining laws of the United States, and request to be instructed as to the status of such sections with respect to said laws.

The proclamation referred to embraces the lands in the Territory of Oklahoma which were ceded to the United States by the Wichita and affiliated bands of Indians, under an agreement ratified by act of Congress, of March 2, 1895 (28 Stat., 876, 894-9), and by the Comanche,