the homes of an agricultural resident population. In view of such facts, the law of 1878 (20 Stat., 89), applicable only to certain mountain States, afterward, August 4, 1892 (27 Stat., 348), made applicable to all the public land States, provided that lands

valuable chiefly for timber, but unfit for cultivation, and which have not been offered at public sale, according to law, may be sold. . . . at the minimum price of two dollars and fifty cents per acre, and lands chiefly valuable for stone may be sold on the same terms.

This act merely opened unoffered lands of this general description to private cash purchase in limited quantity, at an enhanced price, prior to its public offering. It was not the making of a new classification of lands that could be sold only under the act and only at the price fixed. Such lands, if not purchased under this act in advance of their public offering, upon being offered were subject to private cash entry or warrant location like any other public lands, not reserved from sale or entry. They became subject to settlement entry under the homestead law, the timbered or stony character and unfitness for cultivation being regarded merely as a circumstance to be considered in passing on the good faith of the settlement entryman. John A. McKay (8 L. D., 526); Porter v. Throop (6 L. D., 691); Wright v. Larson (7 L. D., 555); Keller v. Bullington (11 L. D., 140); Harper v. Eiene (26 L. D., 151).

It is thus clear that the mere fact that the land is more valuable for the timber or the stone therein does not exclude it from appropriation under lieu selection or homestead entry, if not of mineral character.

The affidavit does not directly nor by necessary implication charge that the land is mineral in character, but alleges in the alternative that it is more valuable for the lumber or stone" than for agricultural purposes. It is entirely component with the truth of this averment that the stone adds nothing to its value and that it is desirable for its timber alone. A great variety of substances, valuable clays, gypsum, lime, stone, phosphate, guano, marble and slate, building stone, petroleum, etc., may render land of mineral character if the quality and market conditions make the land chiefly valuable for working such deposits with profit. Dobbs Placer, 1 L. D., 565, 567; Phifer v. Heaton, 27 L. D., 57; Morrill v. Northern Pacific R. R. Co., 30 L. D., 475; Florida Central etc., R. R. Co., 26 L. D., 600; Richter e. Utah, 27 L. D., 95; Schrimpf et al v. Northern Pacific R. R. Co., 29 L. D., 327; Beaudette v. Northern Pacific R. R. Co., 29 L. D., 248; Tulare Oil & Refining Co. v. Southern Pacific R. R. Co., 29 L. D., 269. But to a mineral character the deposits must be workable at a profit above that for other purposes. South Dakota Mining Co. v. McDonald, 30 L. D., 357. It is "valuable " mineral deposits that give the

mineral character excepting land from homestead entry. Land not valuable for its mineral deposit is not excepted from homestead entry. The affidavit therefore was insufficient for the basis of a contest, as to the mineral character of the land, and it was subject to selection under the exchange provisions of the acts of 1897 and 1900, supra.

Your decision is affirmed.

FINAL PROOF-RESIDENCE-SECTION 2307 OF THE REVISED STATUTES.

MARY E. HAHN.

Where the final proof submitted on an entry made under section 2307 of the Revised Statutes shows that the entrywoman never established actual residence upon the land, although notified in accordance with the directions contained in departmental decision in the Anna Bowes case that if she desired to retain her entry she would be required to begin actual residence upon the land within six months from notice, such proof is insufficient and will be rejected; but where it appears that the proof was offered prior to the expiration of six months from the date of such notice, the entry should not be canceled unless it be first ascertained that she did not begin actual residence upon the land within the prescribed period.

Acting Secretary Ryan to the Commissioner of the General Land (S. V. P.) Office, September 7, 1905. (F. W. C.)

Mary E. Hahn has appealed from your office decision of August 5th, last, sustaining the action of the local officers in rejecting her proof proffered under her homestead entry made September 19, 1902, covering the S. } of SW. of Sec. 22, NE. 1 NW. ‡ and NW. Į NE. 1, Sec. 27, T. 25 N., R. 42 W., Alliance land district, Nebraska.

The decision of your office, as well as the action of the local officers, was based upon the fact that claimant had never established an actual residence upon the land included in her homestead entry. In the case of Anna Bowes (32 L. D., 331) it was held that the widow or minor orphan children of a deceased soldier or sailor making homestead entry under section 2307 of the Revised Statutes must comply with the provisions of the homestead law as to residence and cultivation to the same extent as a soldier or sailor making entry under section 2304 of the Revised Statutes. The entry in question was made under the provisions of section 2307 of the Revised Statutes, claimant showing that she is the widow of Joseph Hahn, deceased, who was on the 20th of April, 1861, enlisted as a private in Company H, Sixth Regiment of Ohio Volunteer Infantry, and was mustered into the United States service as such for the period of three months on the 10th of May, 1861; that he was appointed a sergeant on the last named date and mustered out June 16, 1861, to

reenlist for a period of three years; that he was enlisted as a private of Company H of the Sixth Regiment of Ohio Volunteer Infantry on the 18th day of June, 1861, for a period of three years; and that he was transferred to the Veteran Reserve Corps November 15, 1864, by order of the War Department. In her proof claimant admits that she never established actual residence on the land covered by her entry and never built a habitable house thereon, that the only improvements made thereon consisted of about three-quarters of a mile of fencing, valued at $75, and that she did no cultivation on the land, but gave parties the right to use it for grazing cattle, which seems to have been the only use made of the land since her entry. Departmental decision in the Bowes case, supra, directed that persons having uncompleted entries made under section 2307 be notified that if they desired to retain such entries they would be required to begin actual residence upon the land within six months from the issuance of such notice, or, if they so elected, they would be permitted to relinquish their entries without prejudice to their homestead rights, by giving notice of such election within the same time. From the report of the local officers, dated April 5, 1905, it appears that on November 30, 1904, claimant was advised that actual residence on her homestead entry was required, and also of her option to relinquish her land without prejudice to her homestead right, if she desired, and that registry return receipt, signed by her December 5, 1904, of such notice, is among the papers. She does not appear to have elected to relinquish her entry without prejudice to her homestead right, and does not appear to have begun actual residence upon the land, as required. Her proof was offered, however, March 14, 1905, before the expiration of six months from the date of the notice given her as required by the decision in the Bowes case. For the reasons

given in the decision in the Bowes case, your office decision, rejecting the proof proffered by Mrs. Hahn, is affirmed. You will advise her hereof and institute inquiry to learn whether she has begun actual residence upon the land within the period prescribed in the departmental regulation heretofore referred to, and in event she has not, her entry will be cancelled.

LIEU SELECTION UNDER ACT OF JUNE 4, 1897-PENDING SCHOOL INDEMNITY SELECTION.

SANTA FE PACIFIC RAILROAD COMPANY.

Pending disposition of a school-land indemnity selection, even though erroneously received, selection of the same land in lieu of a tract in a forest reserve relinquished under the exchange provisions of the act of June 4, 1897, should not be allowed.

Acting Secretary Ryan to the Commissioner of the General Land (S. V. P.) Office, September 8, 1905. (F. W. C.) The Santa Fe Pacific Railroad Company has appealed from your office decision of December 13, 1904, rejecting its application, proffered under the act of June 4, 1897 (30 Stat., 36), to select lots 1 and 2 and the S. of NE. 4, Sec. 3, T. 28 N., R. 6 E., M. D. M., Susanville land district, California, in lieu of an equal quantity of land relinquished to the United States in the San Francisco Mountains forest reserve, because of certain prior school indemnity selections made of said lands; also, its application to contest the State's selection.

The selection in question was presented and rejected February 17, 1904. In the report of the local officers, dated June 8, 1904, it is stated that on March 16, 1904, H. D. Burroughs, as attorney in fact, filed a motion asking that the application be placed on file and held subject to any rights the State of California might have under its school land indemnity selection, and that on the same day the local officers notified him that the rejection of his application was "“suspended and revoked pending consideration of the motion," and that on March 23, 1904, the local officers denied the motion and held "said application as rejected," from which action an appeal was taken upon the grounds: (1) in holding that the lands applied for were segregated by the State indemnity selection, and (2) that said indemnity selection was invalid and void for the reason that the lands used as a basis therefor are not within a forest reserve, but are within temporary withdrawals and therefore do not constitute a lawful basis for State and indemnity selections."

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At the time of the filing of this appeal there was also filed an affidavit, made by H. D. Burroughs, to contest the State's selection, alleging that the lands made the basis therefor "are not within a forest reserve, and are not such lands as entitle the said State to selection of other lands in lieu thereof, and do not constitute a lawful basis for the selection of public lands for said school lands.”

Long prior to the filing of the application in question, to wit, on August 20, 1903, an application to select the lands here applied for, as school indemnity, had been filed in the local land office and accepted by the local officers on a base of the W. of NW. 4 of Sec. 36, T. 23 N., R. 16 E., and lot 4 and part of lot 3, Sec. 36, T. 22 N., R. 17 E., M. D. M., alleged to have been lost to the school grant by reason of inclusion in a forest reserve.

With regard to said base lands, the facts appear to be as follows: They were placed within a temporary withdrawal December 24, 1902, for examination and investigation with a view to their inclusion within a forest reserve, but on January 20, 1904, Sec. 36, T. 23 N., R.

16 E., was released from reservation and Sec. 36, T. 22 N., R. 17 E., was also released September 20, 1904.

By departmental decision of December 10, 1903, ex parte State of California (32 L. D., 346), it was held that the mere inclusion of sections 16 and 36, granted for school purposes, within a withdrawal made for the purpose of permitting investigation and examination of the lands with a view to their possible inclusion within a forest reservation does not place them within a "reservation" within the meaning of that term as employed in the act of February 28, 1891 (26 Stat., 796), and therefore does not afford a base for selection of indemnity lands. Thereafter the State filed a motion for review, asking that, should the motion be denied, the selections theretofore made on account of such bases might be permitted to stand until the question as to whether reserves should be created of the lands theretofore withdrawn, and, if so, to what extent, is determined, and February 13, 1904, the Department, in denying the motion for review, granted the State's request. This action was just four days prior to the presentation of the application here in question by the Santa Fe Pacific Railroad Company, and although, as before stated, it had been determined as early as January 20, 1904, that section 36, township 23 north, range 16 east, would not be included within a forest reserve, and on September 20, 1904, that the remaining tract made the basis of the selection in question would not be included within a forest reserve, final order was not made for the cancellation of the selection until March 18, 1905.

In the case of Santa Fe Pacific Railroad Company . State of California, decided July 3, 1905 (34 L. D., 12), considering a similar application to select, filed by the Santa Fe Pacific Railroad Company, it was held that

Good administration requires that pending the disposition of a selection, even though erroneously received, no other application including any portion of the land embraced in said selection should be accepted nor should any rights be considered as initiated by the tender of any such application.

This rule of administration has been followed for many years and the applicant was undoubtedly fully apprised thereof when tendering the application here in question. His motion, following the first rejection of his application, asking for suspension of action upon his application, or that the same be permitted to remain subject to rights under the State's selection, tends to establish such a knowledge on his part, and while it is true that your office should have canceled the State's selection as soon as it was determined that the base lands would not be needed, yet it must be held that the local officers correctly rejected the application here under consideration, when presented, because of the pending indemnity selection by the State. The appeal