of the descriptive terms "vein or lode" in the statute is settled (Stevens v. Williams, 1 McCrary, 480), and I have said above that there are no practical considerations opposing it. Therefore I see no reason for objecting to the location in the case before me, and reverse your decision.

TOWN SITE-ENTRY BY JUDGE.

TOWNSITE OF ASPEN.

Application for the townsite, which lay in Gunnison county, was made by the judge of said county in 1880; pending its consideration on the question of the alleged mineral character of the land, the town was incorporated in April, 1881; afterwards the county was divided into Gunnison and Pitkin counties, throwing the town into the latter county, whereupon, in June, 1881, the judge of Pitkin county made the entry: held that the entry should have been made in the name of the corporate authorities as trustees, and that, since the parties have so agreed, patent may so issue without cancellation and new entry.

Secretary Teller to Commissioner McFarland, July 18, 1884.

On the 13th of May last I verbally requested you to transmit for my consideration the case of the Aspen townsite claim, entry No. 647, Leadville, Colorado, made June 2, 1881, by J. W. Deane, county judge, for 255.50 acres, delineated by special survey.

This entry was, on the 9th of June, 1881, disavowed and protested by the mayor, recorder, trustees, and more than one hundred citizens of said town.

May 5, 1884, after showing satisfactorily to you that said town was in April, 1881, incorporated, a date prior to the date of said entry, you held it for cancellation, on the ground that by Section 2387, Revised Statutes, the entry must be made by the corporate authorities and not by the county judge. You further held that although Judge Deane was commissioned and took the oath of office on the first day of June, yet as his official bond was not approved until the 6th of June, 1881, and as the laws of Colorado provide that such au officer shall not enter upon his duties until the giving of a good and sufficient bond, he was not competent to make the entry.

Upon the first proposition, you are undoubtedly correct in holding that entry in case of incorporated towns should be made by the corporate authorities. Upon the second I cannot agree with you. It is not alleged that the bond of Deane was executed after the date of entry, but that it was not at that time approved. If it was found good and sufficient when examined, it was a good bond from its execution, the approval being evidence of its original sufficiency. And even were it not made until after the entry, he was in commission and had taken the oath of office, an the United States would not be bound to look beyond his commission in recognizing him as an officer and receiving his application to purchase under the United States statute.

I find, however, in this case, certain facts not noticed by you, to wit: that on the 23d of March, 1880, application to enter said townsite was filed in the district office by the county judge (Smith) of Gunnison County, in which the land then lay; that said application was accompanied by a duly-executed plat of survey, and was signed by more than sixty applicants; that afterward, on the 27th of August, 1880, the register and receiver ordered a hearing upon certain allegations touching the mineral character of the land; that on the 22d of October they rendered their decision thereon, holding that the townsite application to enter should be allowed; that on the 11th of April, 1881, you affirmed their decision; that appeal was waived on the 2d of June, 1881, and on the same day the entry of the land was allowed to be made by Deane, who had been commissioned judge of Pitkin county, which had been set off by legislative act from Gunnison county during the pendency of these proceedings. It appears also that the money paid was already in the hands of the district officers, having been tendered by Judge Smith to support the pending application. Upon these facts it is claimed by claimants on the part of the county judge that the entry by Judge Deane was proper, even if the town was previously incorporated; although, it may be here recited, they do not admit the fact of such incorporation at date of entry, but contest the validity of the proceedings by which the incorporation was effected.

On the other hand, the claimants on behalf of the corporate authorities contend that the incorporation was effective, that the mayor alone had the right of entry June 2, 1881, and that consequently the act of Deane was coram non judice, and void, which conclusion you have adopted as a basis for your decision.

I think the pending application filed by the judge, having complete jurisdiction when it was presented, is sufficient as a basis for the entry whenever the preliminary contest was decided; that the legislature of Colorado, in dividing the county, compelled the town to accept a new trustee; that the incorporation of Aspen, prior to the application or appointment of the judge for the new county, had devolved the trust under the laws of the United States upon the corporate authorities, and thus barred the trusteeship of the judge; that in consequence the corporate authorities should have been described in the certificate of entry as trustees and the entry so reported.

It follows, that while the act of the judge was ineffectual to invest him with the trust, it did not avoid the right of the town or the efficiency of the pending application and tender of payment; and as claimants under the entry now agree (appeal from your decision having been waived by the present county judge) that patent may issue in the name of the corporate authorities upon the entry already made, I direct that this be done, and your decision holding the entry for cancellation is modified accordingly.

HOMESTEAD-ABANDONMENT.

WILMARTH AND KEMP.

The ruling in Baxter v. Cross governs in all cases arising after it was rendered. Acting Secretary Joslyn to Commissioner McFarland, July 19, 1884. Please find herewith inclosed a letter from Messrs. Wilmarth and Kemp, of Huron, Dakota, inquiring whether the ruling in the case of Amley v. Sando (11 C. L. O., 50), or the ruling in Baxter v. Cross (11 C. L. O., 103; 2 L. D., 69), is to be followed. For their information, and for that of others concerned, I may state that the latter decision governs in all cases arising after the date on which it was rendered.

I may observe, further, that the former case was a review of a decision of March 17, 1884, when the rule obtained which was laid down in Bennett v. Baxley (10 C. L. O., 359; 2 L. D., 151). It simply enforced said rule, as its language plainly indicates, though at the same time making a correction in the calculation of time appearing in it. Bennett v. Baxley was a formulation of the ruling which had for years obtained in the Land Department, and which excluded only the day of entry in calculating abandonment for six months next after homestead entry, for which contest would lie. When the case of Baxter v. Cross came under consideration, it was deemed proper to modify said rule, and it was accordingly done. In doing so, the case of Bennett v. Baxley and the rule laid down in it were cited; and, that case being overruled, it naturally followed that all others founded on it fell with it.

DONATION-REISSUE OF PATENT.

JOSIAH PETRAIN AND WIFE.

Application to reissue patent, changing the boundary line, whereby the quantity of land would be increased, is denied, because said line was in accordance with claimant's notice, because the official survey has stood unchallenged for twenty years and upwards, and because the change would derange the dividing line between the half of donee and that of his wife, and probably lead to litigation and the unsettling of existing titles.

Assistant Commissioner Harrison to register and receiver, Vancouver, Wash., July 19, 1884.

I am in receipt of the register's letter of 3d of May last, inclosing affidavits of Mathias Spurgeon, Roson M. Seward, and P. W. Crawford, accompanied by a patent, dated November 22, 1865, issued in favor of Joseph Petrain and wife, for lands claimed by Petrain as a donation. These lands are surveyed as claim No. 55, being parts of Secs. 8, 9, 16, 17, and 21, in T. 2 N., R. 1 E., Washington Territory, and cover an area of 525.67 acres.

These papers are filed here for the purpose of having the east boundary line of the survey of said donation changed so as to run N. 30 E., instead of running N. as it does by the official survey, and to have a corrected patent issued in accordance with the survey as thus amended. The affidavit of Crawford states that he found the original southeast and northeast corners of said claim as established by the official survey, and that a straight line connecting these points must be run from said southeast corner on a course N. 3o E.

Spurgeon and Seward are the present owners of the land in question, as appears by their joint affidavit.

This claim comes under the 4th section of the act of September 27, 1850 (9 Stat., 496).

By the 6th section of the act of February 14, 1853 (10 Stat., 158), those elaiming under the 4th section of said act of 1850 were required to give notice of their claims in writing prior to December 1, 1853, or be forever thereafter debarred from receiving any benefit thereunder.

Pursuant to this requirement of the act of 1853, Petrain gave notice of his claim to 640 acres on the 16th of August, 1853. This notice gives the boundaries of the land claimed, as follows: Commencing at the northwest corner of the donation of A. M. Short, and running thence N. 80 chs., thence W. 80 chs., thence S. 80 chs., and thence E. 80 chs., to the place of beginning. Reference is made in this notice to a paper in the case, from which it appears that Mr. Petrain procured a record of his claim to be made in the office of the probate court for Clark county, Washington Territory, in accordance with the above description.

The public surveys were extended over the township in which this claim is located, and the plat thereof approved May 20, 1860. On the 27th of June following, Petrain filed another notice, in which his claim is described as follows: Beginning at a stake 21 chs. S. and 2.40 chs. E. qr. post between Secs. 16 and 21, T. 2 N., R. 1 E., and running thence N. 30 E. 80 cls., thence N. 560 W. 65 chs., thence S. 5610 W. 18 chs., thence S. 30 W. 48.50 chs., thence S. 39° E. 39 chs., and thence S. 56° E. 51 chs. to the place of beginning. This notice is very much changed by striking out courses and distances and inserting others; and as it is above given it agrees with his third notice filed a year later.

The claim plat upon which Petrain's claim is shown was approved September 15, 1863.

On July 26, 1862, the donation certificate in this case was issued, and as the claim plat had not then been constructed, a special plat of the survey of the claim was procured from the surveyor-general and forwarded here with the papers in the case. The records of this office show that said patent was sent for delivery to the register on the 23d of November, 1865. The register on the 30th ultimo reported that the records of his office fail to show when the delivery of the patent was made. By calculations made in this office the official survey is found to close within less than one chain; and by taking the northeast corner of the

claim as the initial point, it is found that the east line, if run on a course north about one-half degree east, would close exactly.

To change this east line as requested, making it run N. 30 E. would change the length of this line and the northeast line with which it connects (that is, if the lines of the survey closed), and give the donee about sixteen acres more land, most of it carved out of Section 16.

As the law required this donee to give notice in writing of the land which he claimed, and as he gave notice, stating his claim to be in the form of a square, all its lines 80 chains in length; and as the law also provided that if the donee did not give this notice he should be debarred from receiving any benefit under the law; and as a patent for land, a large part of which lies outside of this notice, has been issued, it would seem that the present parties ought to be satisfied with this line, which is the only one bounding the claim that has any appearance of being located by the original notice; and more especially should they be satisfied with the existing survey after the same has stood unchallenged for upwards of twenty years, either by the donee or those claiming under him.

To now change this east line so as to increase the area of the claim would remove the dividing line separating the donee's half from that which was assigned the wife, and might, and probably would, lead to litigation and the unsettling of existing titles.

In view of all the facts in this case, of the great liberality which has been shown the donee in patenting to him land outside of his original notice, of the great length of time which has elapsed since the official survey of the claim was executed, and of the fact that the survey has stood without protest for so long a period, I am of the opinion that it is my duty to refuse to allow a change of the boundaries of said claim as asked. I therefore decline to order a resurvey of said east boundary line, or in any manner to disturb the status of said douation as patented, and herewith return the patent received with the register's said letter, that it may be handed to the party entitled thereto.

SOLDIERS' HOMESTEAD-SETTLEMENT AND ENTRY.

CHARLES HOTALING.

Settlement, improvement, and entry must be made within six months after date of filing.

Contest will lie for failure in either particular, and the successful contestant has a preferred right of entry.

Secretary Teller to Commissioner McFarland, July 21. 1884.

I have considered the appeal of Charles Hotaling from your decision of August 13, 1883, declining to entertain his appeal from the action of the local officers at Huron, Dakota, dismissing his contest against John M. Leech's homestead claim upon the NW. 4 of Sec. 26, T. 110, R. 62 Mitchell series.

7747 LAND——2