respect individual locations under the statute, the plats must distinguish the locations. Or, again, each location must be distinguished, to the end that protestants may be able to identify the land in respect of which a non-compliance with local or general law is charged. And, finally, a survey of each location included in the application and patent is essential to the protection of the claimant; for, under the decision in Mining Co. v. Mining Co. (118 U. S., 196), the plat must show that the end lines of each location are parallel, in order that the patentee may have the right to follow a vein outside of the bounds of such location.

Apart from this general consideration of the purposes of a survey, the language of the statute would seem to be conclusive of the question. By Section 2325, the survey is required to be "of the claim or claims in common," and to show "the boundaries of the claim or claims." The word "claim" in the mining laws has different meanings, and may refer either to a single location or to consolidated locations, as the intention of Congress in using it requires. In this case, in my judgment, it refers to the separate locations, not only because the intention of Congress can be satisfied by this construction alone, but because the word is used in both the singular and plural, and in the latter case manifestly refers to the "claims held in common" mentioned in Section 2324, which mean the separate locations. The statute therefore expressly requires that the survey shall exhibit the boundaries of each location covered by the application. Such has heretofore been the ruling of the Land Department, and it is thus substantially expressed in paragraph 7 of circular of December 4, 1884 (3 L. D., 540), which was not modified by circular of December 14, 1885 (4 L. D., 374). Such, also, is the effect of the decision in Smelting Co. v. Kemp (104 U. S., 636, 653), where the supreme court ruled upon this point as follows, to wit:

"The last position of the court below, that the owner of contiguous locations who seeks a patent must present a separate application for each, and obtain a separate survey, and prove that upon each the required work has been performed, is as untenable as the rulings already considered."

Here the court decide that there may be one application for several contiguous locations, with one plat, and proof for the consolidated claim of the work required by section 2325; and this decision was followed by the Department in the case of the Good Return Mining Co. (supra). When, however, they refer (p. 654) to proof of the annual expenditure required by section 2324, they construe the words "claim or claims" in the former section as identical with those words in the latter in the following passage, to wit:

"There is no force in the suggestion that a separate patent for each location is necessary to insure the required expenditure of labor upon it. The statute of 1872 provides that on each claim subsequently located until a patent is issued for it, there shall be annually expended in labor

or improvements one hundred dollars; and on claims previously located an annual expenditure of ten dollars for each one hundred feet in length along the vein; but where such claims are held in common,' the expenditure may be upon any one claim. As these provisions relate to expenditures before a patent is issued, proof of them will be a matter for consideration when application for the patent is made. It is not perceived in what way this proof can be changed or the requirement affected, whether the application be for a patent for one claim or for several claims held in common."

The case of Chambers v. Harrington (111 U. S., 350) is to the same effect, and clearly implies that the claims in common which may be included in one patent under section 2325 are the separate locations on or for each of which the annual expenditure must be made.

I therefore approve the existing regulations of the Land Department, namely, that the plat of survey when required, must show the boundaries and conflicts of each location of the consolidated claim.

In respect to the second point raised by your letter of inquiry, to wit, the expenses of the survey, I do not deem it expedient now, if indeed it be possible, to formulate a fixed ruling. Such matters are remitted to the control of your office by section 2334, R. S., subject of course to the supervision of the Department. The existing tariff of charges, approved by the Land Department, being presumptively reasonable where application is made for the survey of a single location or claim, I can conceive of cases where perhaps it would properly apply to the survey of consolidated claims; and, again, I can conceive of cases where probably, if applied, the expenses would be unreasonable. But it would seem that the decision of the question in each case must depend on the particular facts, the form and relation of the several claims and conflicts, and therefore could not be intelligently reached without an inspection of the plat. I remit this question to your office for further consideration, and for the formulation and submission to the Department of a modified tariff of surveying charges, if a fixed ruling in the case of consolidated claims be deemed practicable.

RAILROAD GRANT-RESERVATION.

MCANDREW v. CHICAGO, M. & ST. P. Ry. Co.

The inadvertent marking on the records of the local office of a warrant location constitutes no appropriation or reservation of the land covered thereby.

The case of Cole v. Markley cited and distinguished.

Acting Secretary Muldrow to Commissioner Sparks, October 28, 1886.

I have considered the appeal of James K. McAndrew from your office decision of January 19, 1885, adverse to him as pre-emption applicant for the SE. of Sec. 7, T. 96 N., R. 39 W., Des Moines, Iowa. The facts as disclosed by the record before me are as follows:

McAndrew presented his pre emption declaratory statement at the local office December 2, 1884, for the tract above described, and his

application to file was on the same day refused, for the reason that said tract" appears to be covered by land warrant location Wt. No. 45, 167-160 a. —act 1855, and is moreover within railroad limits." From this action he appealed to your office, and claimed that the abstract of land warrant locations for May, 1857, shows that the warrant above mentioned was located on the corresponding tract in range "38" and not in "39," where this tract lies.

In examining the case on appeal your office found that its records "do not show any entry of the tract, but do show that said warrant was located on the corresponding tract in range 38, and that the location was patented December 1, 1859."

The decision, the appeal from which is now before me, therefore declared the objection, on account of the land warrant location, untenable, but found the tract in question to be within the ten miles, or granted, limits of the grant to the State of Iowa for the railroad now known as the Chicago, Milwaukee and St. Paul Railway, and within the twenty miles limits of the grant for the Sioux City and St. Paul Railroad, both of which grants were made by the act of May 12, 1864 (13 Stat., 72).

Said decision also recites that the line of road first named was definitely located opposite the tract in question September 2, 1869, and further that said tract fell within the limits of the withdrawal of September 12, 1864. It held that consequently the land is not subject to disposal under the laws of the United States, and for this reason affirmed the action of the local office rejecting appellant's application to make pre-emption filing for the tract.

An examination of the records of your office shows that the applica tion to locate the land warrant herein mentioned described the tract which was subsequently patented under said location. It is therefore manifest that the marking of the location on the records of the local office as in range 39 was an inadvertence, or error, and that it in no sense constituted a disposal of the tract covered by such erroneous marking.

The grant for the benefit of the railroad companies, in section one. thereof, granted

“Every alternate section of land designated by odd numbers for ten sections in width on each side of said roads; but, in case it shall appear that the United States have, when the lines or routes are definitely located, sold any section or any part thereof, granted as aforesaid, or that the right of pre-emption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the Secretary of the Interior to cause to be selected, for the purposes aforesaid, from the public lands of the United States nearest to the tiers of sections above specified, so much land in alternate sections or parts of sections, designated by odd numbers, as shall be equal to such lands as the United States have sold, reserved, or otherwise appropriated, or to which the right of homestead settlement or pre emption has attached as aforeBaid," etc.

The tract in question had not at the date of the definite location of the line of road been sold, nor had any right of pre-emption or homestead settlement attached to it; and, so far as the records show, it does not appear that application had ever been made for it by any settler or claimant whatsoever. Neither had it been reserved by the United States for any purpose whatever. The mere inadvertent marking on the books of the local office could in no sense be regarded as a disposal of the land. No one was seeking its ownership, consequently there was no one to whom disposal could be made. It could not be construed as a reservation within the meaning of the law (Cole v. Markley, 2 L. D., S47), for this would imply a purpose, while inadvertence denotes the absence of purpose, or that a thing is done contrary to purpose and intention.

This tract could have been claimed under the settlement laws by any one qualified at any time prior to said definite location, and had it been so claimed attention would have been called to the erroneous marking and the correction would have been made, as has now been done. This being true, the conclusion must be that the tract was public land, subject to disposal under the general laws, and therefore that it was subject to the railroad grant.

Your office decision denying McAndrew's pre emption application is affirmed.

NOTICE OF HEARINGS AND DECISIONS.

CIRCULAR.

Commissioner Sparks, to registers and receivers, and surveyors-general, October 28, 1886.

In addition to the registration of notices of hearings and decisions, as provided in circular of October 15, 1884 (3 L. D., 140) it is hereby directed that all notices required to be given by you of your decisions, or of decisions of this office, involving the right of appeal, or the exercise of other rights within a certain time or compliance with some official requirement, will hereafter be served by you personally or by registered letter.

When personal service is had you will transmit to this office the acknowledgment of such service or evidence thereof. When service is made by registered letter the return letter receipt, or returned letter as the case may be, must, in every instance, be sent up with the papers in the case.

The costs of registration will be paid out of the advances from the proper appropriations, and estimates therefor will be embraced in the usual requisitions.

Approved:

L. Q. C. LAMAR,

Secretary.

REVIEW DENIED.

EBBOTT v. SCHAETZEL ET AL.

Motion for review of decision herein (4 L. D., 587), denied by Secre tary Lamar, October 30, 1886.

PRACTICE-APPEAL: ACT OF APRIL 21, 1876.

ST. PAUL M. & M. RY. Co., ET AL. v. VANNEST.

Though the General Land Office may refuse to receive an appeal from its decision

not filed in time, it has no authority to dismiss such appeal if it is received without objection.

There is no authority under the first section of the act April 21, 1876, for the confirmation of an entry and issue of patent where title has already passed from the government.

Secretary Lamar to Commissioner Sparks, October 30,

1886.

On September 16, 1886, counsel for Orlando Vannest filed an application for an order directing you to certify to this Department the proceedings in the case of the Saint Paul, Minneapolis and Manitoba Railway Company and the Crookston Improvement Company v. said Vannest, involving lots 6 and 7 of Sec. 25, T. 150 N., R. 47 W., and lot 4 of Sec. 30, T. 150 N., R. 46 W., Crookston land district, Minnesota.

It is averred that your office on May 28, 1886, erroneously decided that the application of Vannest for the issuance of a patent for said lands under the act of April 21, 1876, (19 Stat., 35), must be denied, because patents for the same land had been issued by the Department on September 4, 1879, and February 19, 1881, which were still outstanding, and also that your office, on September 1, 1886, erroneously and unlawfully beld and decided that an appeal from its decision, dated May 28, same year, filed by Vannest on July 29, 1886, was not filed within the time prescribed by the Rules of Practice (4 L. D., 35), and therefore could not be recognized or entertained.

It is insisted by the applicant that (1) the appeal was filed in time, and (2) that by said act of April 21, 1876, this Department is compelled to issue patents for lands when the entries fall within the class mentioned therein, notwithstanding the fact that patents have already is sued, and are outstanding for the same land.

It appears that the appeal was filed on the 29th day of July, 1886, and the decision states that "notice was mailed to Messrs. Drummond and Bradford, of this city, the recognized attorneys for said Vannest, on May 28." If that statement is correct, then it is clear that the appeal was not filed within the prescribed time, and could be dismissed by the proper tribunal. It is strenuously urged that the finding in said decision that the notice was mailed on May 28th is not warranted by