REVIEW DENIED.

Motion for review of departmental decision in James v. Hall et al. (4 L. D. 552) overruled by Acting Secretary Hawkins, November 27, 1886.

MINERAL PATENT-TOWNSITE CLAUSE.

The insertion in a mineral patent of a clause reserving townsite rights is not authorized by law.

Acting Secretary Hawkins to Commissioner Sparks, November 27, 1886.

I am in receipt of your communication of October 25, 1886, asking instructions relative to the insertion of the townsite clause in lode patents, and whether the application of the decision in Papina v. Alderson et al. (1 B. L. P., 91) in adjudicating cases in your office is to be continued, or whether the future practice shall be governed by the princi ples established in Deffeback v. Hawke (115 U. S., 392).

The clause referred to is as follows:

"Excepting and excluding however from these presents all town property rights upon the surface, and there are hereby expressly excepted and excluded from the same all houses, buildings, structures, lots, blocks, streets, alleys, or other municipal improvements on the surface of the above described premises, not belonging to the grantee herein, and all rights necessary or proper to the occupation, possession and enjoyment of the same."

It has not been the practice of the Land Department to insert this clause in patents for placer claims, for the reason that the surface is absolutely required for the full enjoyment of the land, by either the placer or townsite owners. Kemp v. Starr (5 C. L. O., 130); Townsite of Deadwood (S C. L. O., 153). But the Department has for many years recognized the principle that there may be a division of the fee simple in the surface and the minerals underneath the surface, and upon this principle the clause referred to was inserted in lode claims. Turner v. Lang (1 C. L. O., 51); Central City, Colorado (2 C. L. O., 150); Rico Townsite (1 L. D. 567). This rule was recognized in the case of Papina v. Alderson (supra), to which you refer, although it was not directly in issue in that case.

While the case of Deffeback v. Hawke involved the question of the rights of claimants under patents for placer claims, it also clearly decided the principle that as under the act of May 10, 1872, all valuable mineral deposits in lands belonging to the United States, whether sur veyed or unsurveyed, are free and open to exploration and purchase, and the lands on which they are found to occupation and purchase, that the fee is indivisible, and that either the mining claimant or the townsite occupants is entitled to it to the exclusion of the other. The

act of May 10, 1872, upon which this decision rests provides (Sec. 2322 R. S.) that

"The locaters of all mining locations heretofore made, or which shall hereafter be made, on any mineral vein, lode, or ledge, where no adverse claim exists on the 10 of May, 1872, so long as they comply with the laws of the United States and with State, Territorial and local regulations, not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their location, and of all veius, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines, extended downward vertically, although such veins, lodes or ledges may so far depart from a perpendicular in their course downward as to extend outside of the vertical side lines of such surface locations."

The reasoning of the court in the case of Deffeback v. Hawke is general in its application to all mineral claims, whether lode or placer. In holding that the officers of the land department have no authority to insert in a patent any other terms than those of conveyance, with recitals showing a compliance with the law and the conditions which it prescribed; and that patent of a placer claim carries with it the title to the surface as well as the land beneath; it is for the reason that "the act of Congress of May 10, 1872, contemplates the purchase of the land on which valuable mineral deposits are found, and its provisions in this respect are retained in Revised Statutes, Section 2319." This section of the Revised Statutes refers to all mineral lands, whether lode or placer. If a mining location is made before townsite appropriation, it excepts the land absolutely, and hence the clause of reservation in the patent to which you refer could not affect the title thereby conveyed.

I therefore recommend that this clause should not be inserted in patents for any mining claim, and that the practice of your office in this respect shall be governed by the construction given to the act of May 10, 1872, by the court in the case of Deffeback v. Hawke.

RE-HEARING DENIED.

GEER v. FARRINGTON.

Application for re-hearing in the above case (4 L. D. 410) denied by Acting Secretary Hawkins, November 27, 1886.

2278 DEC-17

ENTRY PAPERS-FILES OF THE GENERAL LAND OFFICE.

PUGET MILL Co.

Papers pertaining to entries and forming the basis thereof belong to the permanent files of the General Land Office and may not be returned to the parties filing the

same.

Commissioner Sparks to the register and receiver, Olympia, Washington Territory, June 16, 1885.

I am in receipt of your letters (7) of 1st instant, enclosing petitions of the Puget Mill Company, per their agent, in reference to soldiers additional homestead entries, finals 561, 570, 871, 560, 577, 580, and 575, canceled, or held for cancellation for illegality, and for the lands of which said company have made cash entries under the act of June 15, 1880. The petitions represent that said company own the lands in question as assignee of the entrymen, that they have been compelled to secure their title from the government by cash entries under the act of June 15, 1880, and ask that the papers upon which said additional homestead entries are based be returned to you for delivery to said company, and in reply have to state that all papers pertaining to said entries and forming the basis thereof are portions of the permanent files of this office and can not be returned in the manner petitioned for. If said papers are necessary as evidence in any action in the local courts, they will be forwarded to your care and you will respond to such legal subpoena duces tecum as may be served upon you regarding the same.

NOTE. This decision was affirmed by Acting Secretary Hawkins, November 29, 1886.

HYPOTHETICAL CASES BEFORE THE DEPARTMENT.

F. GREENE.

As the Secretary of the Interior must determine all cases coming before the Department on appeal, it would not be proper for him to express an opinion as to whether the proposed action of the settlers would be in violation of the law.

Acting Secretary Hawkins to Mr. F. Greene, Mandan, Dakota, November 29, 1886.

Your letter of the 23rd instant, desiring to obtain my "opinion in regard to the matter of settlers on government land abandoning their claims temporarily for the winter, in order to earn a livelihood," came duly to hand. You add, doubtless as a reason for making this request, that owing to the almost complete failure of crops in this section the past season, a large proportion of the people will be unable to main

tain themselves and families through the winter," and close by requesting permission to publish my reply to your letter.

It would be improper for this Department to express any "opinion," or make any suggestions in regard to the question concerning which you write, other than as required in cases coming before it from the General Land Office, as it could have but a limited knowledge at best of the circumstances surrounding the cases to be affected. The same law which governs the Department in its supervision of all matters pertaining to the public lands controls the settlers upon such lands, determines their rights, liabilities and privileges, and must be the rule to guide them in all their actions in connection therewith.

The fact that the Secretary of the Interior in cases coming before him on appeal is the final judge in the Department of the acts and good faith of settlers seeking to acquire title to the public lands under the laws of Congress, affords another reason why he should not give any opinion such as you desire. In the regular course of the business of the Department the case of the man who would be influenced or controlled by such an opinion, might come before him for decision and final determination.

All I can do in answer to your letter is to refer you to the decisions of the Department rendered and published from time to time, in which the principle involved in the request you make may be directly or indirectly passed upon.

HOMESTEAD CONTEST-QUALIFICATION OF CONTESTANT.

LERNE v. MARTIN.

An alien may contest a homestead entry and secure a preferred right of entry thereby if, after the resulting cancellation, he is qualified to enter.

Secretary Lamar to Commissioner Sparks, November 2, 1886.

I have considered the case of Elery Lerne v. George W. Martin, as presented by the appeal of the latter from the decision of your office, dated May 28, 1885, holding for cancellation his homestead entry No. 7944 of the SW. of Sec. 10, T. 25 N., R. 3 W., made March 22, 1882, at the Neligh land office, in the State of Nebraska, also the appeal from the decision of your office, dated July 7, 1885, denying his application for a rehearing.

The record shows that Lerne initiated contest against said entry on May 27, 1884, and hearing was duly had on July 16, same year. Both parties appeared at the hearing. Upon the evidence submitted the local land officers decided in favor of the contestant. On appeal, your office found that the entryman did not establish and maintain a residence on said tract in good faith as required by law, and affirmed the decision of the local land officers, from which decision the claimant duly

appealed. Subsequently, the entryman made application to the local land officers for a rehearing, upon the ground that the contestant at the time of the initiation of the contest was an alien, and therefore disqualified to make said contest. The local land officers rejected said application, and your office, on appeal, affirmed their decision.

It has been repeatedly ruled by this Department that any person can contest a homestead entry, and if after the entry is canceled as the result of the contest, the contestant is duly qualified, he may be allowed to enter the land. Shinnes v. Bates (4 L. D., 203); Lyman v. Fayant et al. (ibid., 424). There was, therefore, no error in refusing the application for a rehearing.

A careful examination of the whole record shows no reason for disturbing said decisions and the same are hereby affirmed.

PRACTICE-FINAL PROOF-PROTEST.

RUE v. FARIBAULT ET AL.

A protestant, who sets up his filing and settlement claim thereunder to defeat the final proof of another, must submit to a judgment of cancellation, if his protest fails, though he has not yet offered his own final proof.

Acting Secretary Hawkins to Commissioner Sparks, November 30, 1886.

I have considered the case of John Rue v. George H. Faribault and Daniel Cavence, involving the SW. of Sec. 17, T. 153 N., R. 64 W., Devil's Lake, Dakota, on appeal by the first named from your decision of June 18, 1885, adverse to him.

It appears from the record that Rue filed pre-emption declaratory statement for the tract described September 29, 1883, with allegation of settlement April 5, 1883. On the same day (September 29, 1883, which seems to be the day when the township plat was filed), Faribault made homestead entry for the W. of NW. and the W. of SW. of said section 17. On the same day Cavence filed pre-emption declaratory statement for the E. of NW. and the E. of SW. of said section 17, alleging settlement May 7, 1883.

After the usual notice, both Faribault and Cavence appeared on January 4, 1884, to make final proof, with a view to the purchase of the lands embraced in their respective claims. They were met by Rue, who appeared as a protestant against their claims, on the ground of conflict with his claim as embraced by his pre-emption declaratory statement.

It will be observed that each of the applications to purchase includes one-half of the tract claimed by Rue, the W. thereof being embraced in Faribault's claim and the E. in the claim of Cavence.

As a result of Rue's protest, hearing was set for January 24, 1884, in the case of Faribault and January 25, 1884, in the case of Cavence.