purchase, in the absence of any lawful claim by McKibben, Gable is not bound to rely upon his declaratory statement, and is therefore not required to show the existence of a preference-right of entry under it. He may rest his claim upon his application to purchase irrespective of any question of right under his declaratory statement, and it is therefore unnecessary here to consider whether his declaratory statement was a valid one or not. His application and proofs are on their face regular, and, amongst other essential matters, show the lands to be chiefly valuable for coal. The evidence taken at the hearing not only fails to overcome the showing thus made, but tends strongly to sustain it. Upon the entire record the Department is clearly of the opinion that the lands are shown to be of the character subject to sale under the coal land laws. The decision of your office dismissing McKibben's protest and holding his declaratory statement for cancellation is accordingly affirmed. Gable will be allowed a reasonable time within which to complete his purchase in accordance with the directions given in your said decision.

MINING CLAIM-STATUTE OF LIMITATIONS-SECTION 2332, R. S.

THE LITTLE EMILY MINING AND MILLING Co.

The main purpose of section 2332 of the Revised Statutes is to declare that evidence of the holding and working of a mining claim for a period equal to the time prescribed by the local statute of limitations for mining claims shall be considered as sufficiently establishing the location of the claim and the applicant's right thereunder “in the absence of any adverse claim,” and there is no authority for restricting the application of the provisions of said section to such cases only in which the applicant for patent is unable by reason of the lapse of time or the loss of mining records by fire or otherwise to furnish the proof of possessory title required by the mining laws,

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) October 18, 1905.

(G. J. H.)

August 9, 1904, The Little Emily Mining and Milling Company (hereinafter called the company) made mineral entry No. 311 for the Laura and Eureka lode mining claims, Independence land district, California.

It appears from the record that on May 13, 1904, application for patent for the above-mentioned lode claims was filed on behalf of the company, in support of which evidence was furnished showing that on January 28, 1884, it acquired, through mesne conveyances, the title of some of the original locators and had been in open, notorious, continuous and exclusive possession of said claims and worked the same

from that time up to the date of the filing of the application, with the exception of a short period in 1893, when certain persons (not claiming under any of the original locators) entered upon and took possession of a portion of the claims here in question, whereupon the company instituted an action in ejectment against said persons, in the Circuit Court of the United States, Ninth Circuit, Northern District of California, and that court, on January 23, 1896, rendered judgment in said action awarding the exclusive right of possession and enjoyment of the land embraced in the claims here in question to the company. Since the termination of said suit and until the filing of the application for patent, a period of about eight years, and more than equal to the time prescribed by the statute of limitations for mining claims (real property or possession thereof) of the State of California (five years secs. 318 and 319, Civil Code of Procedure), the company is shown to have held and worked the claims and appears to have in all respects complied with the requirements of the mining laws.

Upon consideration of the application and the showing made to support the same, entry was allowed by the local officers. When the matter came in due course before your office, it was found and held, in decision of March 2, 1905, among other things, as follows:

It would appear that the applicant desires to base its possessory title to said claims under the provisions of section 2332 of the United States Revised Statutes. . .

The statute of limitation provides for cases in which applicants are unable to furnish, by reason of the lapse of time or the loss of mining records by fire or otherwise, the proof required to support their possessory title to mining claims under section 2325 of the Revised Statutes, and can not be invoked to cure the defects in title as in this case. Applicant will therefore be allowed sixty days from receipt of notice in which to show cause why said entry should not be canceled by reason of failure to show complete title in applicant at date of application for patent. See decision of the Department of December 30, 1904, Hubbard R. Sherer v. C. C. Koenneker et al., unreported. See also Barklage et al. v. Russell, 29 L. D., 401.

From the decision of your office the company has appealed.

From an examination of the record the applicant appears to have furnished all the proof required by section 2325 of the Revised Statutes, showing compliance with the mining laws, notice of the application was posted and published, and no adverse claim or protest has ever been filed. The only question presented by the appeal is whether the facts shown by the record present such a case as comes within the remedial provisions of section 2332 of the Revised Statutes.

Said section reads as follows:

Where such person or association, they and their grantors, have held and worked their claims for a period equal to the time prescribed by the statute of limitations for mining claims of the State or Territory where the same may be

situated, evidence of such possession and working of the claims for such period shall be sufficient to establish a right to a patent thereto under this chapter, in the absence of any adverse claim; but nothing in this chapter shall be deemed to impair any lien which may have attached in any way whatever to any mining claim or property thereto attached prior to the issuance of a patent. The existing official regulations under said section (31 L. D., 487) are as follows:

74. The provisions of section 2332, Revised Statutes, will greatly lessen the burden of proof, more especially in the case of old claims located many years since, the records of which, in many cases, have been destroyed by fire, or lost in other ways during the lapse of time, but concerning the possessory right to which all controversy or litigation has long been settled.

75. When an applicant desires to make his proof of possessory right in accordance with this provision of law, he will not be required to produce evidence of location, copies of conveyances, or abstracts of title, as in other cases, but will be required to furnish a duly certified copy of the statute of limitation of mining claims for the State or Territory, together with his sworn statement giving a clear and succinct narration of the facts as to the origin of his title, and likewise as to the continuation of his possession of the mining ground covered by his application; the area thereof; the nature and extent of the mining that has been done thereon; whether there has been any opposition to his possession, or litigation with regard to his claim, and, if so, when the same ceased; whether such cessation was caused by compromise or by judicial decree, and any additional facts within the claimant's knowledge having a direct bearing upon his possession and bona fides which he may desire to submit in support of his claim.

76. There should likewise be filed a certificate, under seal of the court having jurisdiction of mining cases within the judicial district embracing the claim, that no suit or action of any character whatever involving the right of possession to any portion of the claim applied for is pending, and that there has been no litigation before said court affecting the title to said claim or any part thereof for a period equal to the time fixed by the statute of limitations for mining claims in the State or Territory as aforesaid, other than that which has been finally decided in favor of the claimant.

77. The claimant should support his narrative of facts relative to his possession, occupancy, and improvements by corroborative testimony of any disinterested person or persons of credibility who may be cognizant of the facts in the case and are capable of testifying understandingly in the premises.

All the evidence required under these regulations has been furnished by the applicant.

There is nothing in the language of the statute to indicate that Congress intended to restrict the application of its provisions to cases where the applicant for patent is unable by reason of the lapse of time or the loss of mining records by fire or otherwise to furnish the required proof of possessory title, nor do the regulations above quoted so construe said section. They state merely that the provisions of that section "will greatly lessen the burden of proof, more expecially in the case of old claims located many years since," etc.

In the case of Barklage et al . Russell (29 L. D., 401), cited to

v.

4

support your decision, it was said, in reference to said section (pp. 405-406):

One purpose of section 2332, as indicated in paragraph 76 [now 74] of the foregoing regulations, and clearly shown in the history of the proceedings in Congress attending its consideration and passage there, was to lessen the burden of proving the location and transfers of old claims concerning which the possessory right was not controverted but the record title to which had in many instances been destroyed by fire or otherwise lost because of the insecurity and difficulty necessarily attending its preservation during the early days of mining operations upon the Pacific Coast and vicinity. As originally enacted, the section was intended, primarily, if not solely to apply to placer claims, for the patenting of which there had previously been no provision, and to which class all, or nearly all, of the earlier claims belonged, the establishment of record title to which under the original locations and through successive transfers was especially difficult and oftentimes impossible for the reasons just stated.

The section was not intended as enacted, nor as now found in the Revised Statutes, to be a wholly separate and independent provision for the patenting of a mining claim. As carried forward into the Revised Statutes it relates to both lode and placer claims, and being in pari materia with the other sections of the revision concerning such claims is to be construed together with them, and so as, if possible, that they may all stand together, forming a harmonious body of mining law. . . . . Properly construed with section 2325 and other sections of the Revised Statutes upon the same subject, it is believed that the main purpose of section 2332 was to declare that evidence of the bolding and working of a mining claim for a period equal to the time prescribed by the local statute of limitations for mining claims shall be considered as sufficiently establishing the location of the claim and the applicant's right thereunder in the absence of any adverse claim."

....

In the present case the applicant, as before stated, appears to have complied in every particular with the requirements of the mining laws and the regulations issued thereunder, and has held and worked the claims for a period equal to and exceeding the time prescribed by the local statute of limitations for mining claims. The decision in that case furnishes no authority for the conclusion reached by your office in the decision appealed from.

The judgment of the court in the ejectment proceeding hereinbefore mentioned awards "the exclusive right of possession and enjoyment of all the land and surface included within the exterior lines of said locations" to the company, and further holds that

on the 8th day of February, 1893, and ever since said date, said plaintiff was the owner of and entitled to the possession of and is now the owner of and entitled to the possession of said above-described lands, mining claims and locations and premises and of each and every portion thereof and is entitled to recover possession thereof from said defendants.

Since the judgment of the court awarding to the company the exclusive right of possession and enjoyment of each and every portion of the mining claims in question, it has held and worked said claims in accordance with the mining laws; no one else appears to

have asserted any right or attempted to exercise any claim whatever thereto; no adverse claim was filed during the period of publication of notice of the application for patent; and no objection, by protest or otherwise, is being made before the land department to the issuance of patent to the company as applied for.

After careful consideration of the matter, the Department is of opinion that the company is entitled to invoke the remedial provisions of section 2332 of the Revised Statutes, and, unless other objection appear, the entry will be carried to patent.

Your office decision is reversed.

RAY. SHIRLEY.

Motion for review of departmental decision of July 17, 1905, 34 L. D., 30, denied by Secretary Hitchcock, October 17, 1905.

ARID LAND-IMPERFECT TITLES-ACT OF JUNE 17, 1902.

OPINION.

The act of June 17, 1902, contemplates that the United States shall be the full owner of irrigation works constructed thereunder, and clearly inhibits the acquisition of property, for use in connection with an irrigation project, subject to servitudes or perpetual obligation to pay rents to a landlord holding the legal title thereto.

Assistant Attorney-General Campbell to the Secretary of the Interior, October 19, 1905. (J. R. W.)

There are informally referred to me the two letters of the Director of the Geological Survey of September 8, 1905, concerning the acquisition of leasehold or possessory rights of George E. Shute, in the SW. of the NW. 4, and the W. of the SW. of Sec. 36, T. 4 N., R. 13 E., G. & S. R. M., Arizona, proposed to be acquired under the act of June 17, 1902 (32 Stat., 388), in connection with the Salt River project; also of the rights of Henry E. Kester and Lawrence E. Karr and wife to lands in section 36, township 16 south, range 21 east, S. B. M., Arizona, proposed to be acquired under the same act in connection with the Yuma project.

The title and rights of George E. Shute were subject of departmental instructions of May 10, 1904 (32 L. D., 604). The land is reserved by section 2 of the act of February 24, 1863 (12 Stat., 664, 665), to be granted for school purposes to the future State to be erected, including such land within its boundaries. All power of the Territory over it is restricted by the act of April 7, 1896 (29