It is alleged that said consolidated claim consists of several iode locations upon different parallel lodes, some cropping out and some "blind," all marked by one system, consisting at present of about 2,900 feet of tunnel and cross cuts run in from the surface at the south end of the claim, and an inclined shaft, 300 feet deep, which is sunk at the northerly end of said mine and designed to connect with said tunnel, and is intended to open and work all ledges through said shaft and tunnel, which exist in said consolidated claim.

It is further alleged that said company is the owner by purchase, and that all of said locations have been duly consolidated; that all work upon said consolidated claim for seven years past has been done for the consolidated claim; that over five hundred dollars worth of work has been done on each lode location, and over sixty thousand dollars worth of work has been done upon the consolidated claim within the past seven years; and that said corporation has been in the sole and continuous possession of, and has worked continuously, said consolidated claim for over seven years, which exceeds the time required to complete the bar of the statute of limitations in said State. Said consolidated claim consists of thirteen separate locations named in said application.

The application was denied, for the reason that by the first paragraph of circular instructions, approved July 6, 1883, (10 C. L. O., 191,) it is provided that "no application will be received, or entry allowed which embraces more than one lode location." Said paragraph was fully considered in departmental decision in case of Good Return Mining Company (4 L. D., 221,) was held to be erroneous, and therefore overruled. It would seem that under the authority of said decision and the decision of the United States Supreme Court, in the case of Smelting Company v. Kemp (104 U. S., 636), said application for survey should be allowed. The decision of your office is therefore reversed.

RELINQUISHMENT-CONTEST.

LEE v. GOODMANSON.

The filing of a relinquishment accompanied by a pre-emption declaratory statement defeats a simultaneous application to contest the entry thus vacated.

Secretary Lamar to Commissioner Sparks, January 30, 1886.

I have considered the case of John J. Lee v. Peter Goodmanson, on appeal by the former from your office decision of May 23, 1884, reject. ing his application to contest the timber culture entry of Goodmanson for the E. of NE. 4, Sec. 18, T. 96, R. 56, Yankton, Dakota.

On May 31, 1883, a relinquishment of said entry was presented to the local office by one Mathias Helgerson, together with his pre-emption declaratory statement for said tract, alleging settlement the same day.

Simultaneously therewith Lee filed affidavit of contest, together with an unsigned application to enter the tract under the timber culture law. The register indorsed on said affidavit, "This contest is refused as being superfluous, a duly executed relinquishment. . . ing been presented by Mathias Helgerson. . . . Both parties appearing at the same time this 31 day of May, 1883." Your office sustained the action of the local officers, but, for the reason that as the application to enter, "filed by Lee, bore no signature, it was in reality uo application at all, and such defect alone I consider sufficient ground for dismissal." I do not find it necessary to pass on the validity of the reason relied on by your office. There is no evidence in this case showing collusion between the entryman and Helgerson. The filing of said relinquishment served to terminate the timber culture entry instantly, and at the same moment the pre-emption filing of Helgerson attached. The affidavit of contest, filed simultaneously with the relinquishment, found no entry to contest. The entry expired simultaneously with the filing of the affidavit.

The decision appealed from is affirmed, for the reasons stated herein.

CASH ENTRY-RESERVATION.

ALEXANDER POLSON.

The prior pending claim having been rejected, the entry herein, allowed before the record was thus cleared, is permitted to remain intact.

Secretary Lamar to Commissioner Sparks, January 30, 1886.

I have considered the case of Alexander Polson, on appeal from your office decision of December 20, 1884, holding for cancellation his private cash entry, made April 10, 1883, for Sec. 6, T. 18 N., R. 9 W., Olympia, Washington Territory.

The reason assigned for the action of your office is that, at the time Polson made said entry, the land embraced therein was "withdrawn from entry by the pending application of George A. Barnes, presented October 19, 1882, and rejected finally by the Secretary of the Interior March 19, 1884.

The application of Barnes had been finally rejected by this Department prior to the action of your office holding the entry of Polson for cancellation. Polson had paid for the tract, and there was no other claim of record.

I do not deem the reason assigned sufficient under the circumstances to warrant the cancellation of said entry. Said decision is therefore reversed. The cash entry of Polson will be allowed to remain intact.

ENTRY-APPLICATION TO AMEND.

MATHIAS FLOREY.

On review.

SAMUEL MOAT.

A pending application to amend an entry constitutes a reservation of the land so applied for.

Secretary Lamar to Commissioner Sparks, February 3, 1886.

I have examined the application made by Samuel Moat for a review of my decision of August 27, 1885, (4 L. D., 112,) permitting Mathias Florey to amend his timber culture entry, which originally covered the S. of NW. and N. of SW. 1, Sec. 28, T. 110 N., R. 66 W., Mitchell, (now Huron,) Dakota, so as to embrace in lieu thereof the S. of NE. and the N. of SE. 4, same section.

My decision allowed Florey's application to amend on the showing that the local office had erred in marking on the tract book the land covered by his entry, it being marked as the tract covered by his appli cation to amend, instead of the tract for which he in fact originally ap plied. It also appeared that the land embraced in his original entry had subsequently thereto, and prior to his application to amend, been covered in part by a pre-emption filing by one Ebenezer Noyes, and the residue by a homestead entry made by one Benjamin F. Warren. He stated that they as well as he had been misled by reason of the erroneous marking on the tract book, and from the action of the register and receiver in allowing the filing and homestead entry, respectively, it would seem that they also were misled by the same error. He also set

out that, by reason of said error, parties employed by him to break five acres were misled and did the breaking on the tract to which he wishes to amend. It further appeared that the tract which he sought to take by his application to amend was vacant unappropriated land.

Though the Department is slow to act favorably upon applications to amend entries deliberately made in accordance with the intention of the applicant, this case seemed one which, in view of all the facts, would justify such a course, and therefore the decision, a review of which is now asked.

It is here to be remarked, that Moat, the homestead entryman of the tract covered by Florey's amended and approved timber culture application, was not a party to the record when Florey's case was acted upon. The tract was, so far as I am aware, vacant land at the date when the local office acted upon Florey's application, and also at the date (June 2, 1884) of your office decision in the same case. On the 17th of July, 1884, however, Moat was allowed to make homestead entry for the tract, and hence his objection to my decision permitting Florey to amend his entry.

Said entry was made while Florey's application to amend was pend

ing. Under the general rule that pending an application to enter, application by another to enter the same land should not be allowed, this Department, in the case of Sarah Renner, (2 L. D., 43,) held that an application to enter should not be entertained pending an application for re-instatement, and in the case of Johnson v. Gjevre (3 L. D., 157), it was held that a pending application to amend a homestead entry reserves the land from any other appropriation until the application is disposed of.

Applying the doctrine thus enunciated to this case, it becomes apparent that the local office erred in allowing Moat to make homestead entry for the tract in question, since at the time it was made said tract was for the time being at least practically withdrawn by the application of Florey to amend. For this reason, and because the record of Florey's application was notice to Moat, I should, were the facts herein recited all that relate to the land described and to the parties interested therein, direct the cancellation of Moat's entry. I find, however, from an abstract from the records of the local office, certified by the register, and filed by the attorney for Moat, that certain proceedings in contest are pending, to which several of the persons mentioned herein, including Florey and Moat, are parties. As one or the other of these contests may result in clearing the record on the ground of failure to comply with the law in the matter of residence or cultivation, and thus remove the complication, without injury to any one who has acted in entire good faith, I decide that the homestead entry of Moat be allowed to remain of record pending the contests mentioned, in order that should it be developed by said contests that no one else has a superior right to the land, he may then hold it under his said entry, subject to his compliance with the requirements of the law.

The motion for review and revocation of my decision of August 27, 1885, is accordingly denied.

SUIT TO SET ASIDE PATENT.

MARY YANCEY.

As the applicant herein may assert her right in the courts, and the government has no interest in the land involved, the application for the institution of suit to set aside certain patents is denied.

Secretary Lamar to Commissioner Sparks, February 3, 1886.

I am in receipt of your office letter of the 21st ultimo, submitting for my consideration the letter of the attorney of Mrs. Mary Yancey, asking "that proceedings be instituted to set aside patents, which appear to have been inadvertently issued February 1, 1860, on Centre, Alabama, cash entries No. 21,912, Richard Taylor, E. of NW. and SW. † of NE. of Sec. 7, T. 19, R. 13, and No. 21,949, James H. Parmer, for N. of SE.

and SE. of SW. 1, same section, which entries are in conflict.

with pre-emption cash entry No. 22,633, Mary Yancey, NW. of SE. 4 and SW. of NE. † of said section 7.

It appears that the entries of Taylor and Parmer were allowed as pri vate entries under the act of Congress, approved August 4, 1854, known as the "Graduation act," in face of the apparent prior right of Mrs. Yancey, who had filed her pre-emption declaratory statement upon the tracts claimed by her December 17, 1858, and made entry of the same on December 17, 1859.

It may be, as stated in your letter, that the issue of patents to Taylor and Parmer was erroneous, but it is not evident what interest the United States now has in the premises. There does not seem to be any reason why Mrs. Yancey may not assert any legal or equitable right she may have in the land in the courts of the country in her own name. (See Bagnell v. Broderick, 13 Pet. U. S., 436; Brush v. Ware, 15 Pet. U. S., 93; Garland v. Wynn, 20 How., 6; Samson v. Smiley, 13 Wall., 91; Bohall v. Dilla, 114 U. S., 47.)

The Supreme Court in the case of the United States v. Minor, (114 U. S., 233,) say: "If, by the case as made by the bill, Spence's claim had covered all the land patented to Minor, it would present the question, whether the United States could bring this suit for Spence's benefit. The government, in that case, would certainly have no interest in the land when recovered, as it must go to Spence without any further compensation. And it may become a grave question, in some future case of this character, how far the officers of the government can be permitted, when it has no interest in the property, or in the subject of the litigation, to use its name to set aside its own patent for which it has received full compensation, for the benefit of a rival claimant."

The court did not decide that question as it did not properly arise in the case before them.

In the present case, it is clear that the government has no interest in the land, and I see no reason why Mrs. Yancey should not assert her rights in the courts in her own name. The request of her attorney therefore should be denied, and you will so direct.

ALABAMA-ACT OF MARCH 3, 1883.

MARY E. JEFFRAY.

On the cancellation of an entry existing at the date of the passage of the act of March 3, 1883, for land theretofore classed as "coal," such land cannot be disposed of as agricultural until after public offering.

Secretary Lamar to Commissioner Sparks, February 5, 1886.

I have considered the case of Mary E. Jeffray, on appeal from your office decision of January 21, 1885, rejecting her application to file soldier's declaratory statement for the W. of SE. and W. of NE. 4, Sec. 18, T. 16 S., R. 3 W., Montgomery, Alabama.