Under this provision of said act, the surveyor general of Louisiana in 1870, issued certificates of location on the claim of Phares, and the same were transmitted to your office for authentication.

Your office

denied the application for authentication of these certificates, upon the ground, that "the basis for indemnity in this case under the act of 1858 has not been established."

The act of 1858, as appears from the above quotation therefrom, authorizes the issue of certificates of location only in cases of "confirmed" private land claims, and requires "satisfactory proof of such confirmation." The claim of Phares depends for confirmation upon the third section of the act of March 3, 1819, which expressly excepts from its operation lands "claimed or recognized under sections one and two of said act." If the land claimed by Phares was "claimed or recognized" under either of said preceding sections of the act, then the claim of Phares thereto was not confirmed by the act and the issuance of the certificates of location was unauthorized by the act of 1858. The burden of proving confirmation of the claim is upon the confirmee or his legal representatives. In order to do this, it is absolutely essential at the outset to sufficiently identify the land or establish its locus. Until this is done, it can neither be determined whether the land is covered by a claim under sections one or two of the act of 1819, nor whether the the claim thereto has been satisfied in whole or in part. Moreover, the definite location of the claim would seem to be necessary, to prevent the government from being defrauded by the duplication of claims by the original confirmees or their legal representatives. (Instructions of Commissioner Drummond of August 26, 1872, Land Office Report for 1873, p. 40.)

There is no evidence whatever in this case showing either the exact or approximate boundaries of the land claimed by Phares, or in any way identifying it; hence, no basis for indemnity under the act of 1858 is established. (John Shafer 5 L. D., 283.) The proof is, also, silent as to how Hardee, the alleged legal representative of Phares and in whose behalf as such representative the application is made, acquired title to the claim.

The decision of your office is accordingly affirmed.

PRE-EMPTION-RESIDENCE-JOINT ENTRY.

EDWARD J. DOYLE.

The purpose of the departmental rule requiring of the pre-emptor six months actual residence preceding entry is to secure an assurance of good faith on his part, and where good faith is otherwise sufficiently established, the object of the rule is attained, and a literal compliance therewith is not necessary.

In the event of settlement before survey, and award of joint entry, the parties are not authorized to divide equally the forty acre tract in conflict and thereafter enter the same in accordance with such partition; nor is there any authority under the law for such an entry.

In such a case the whole tract in couliet may be entered by either party on condition that he teuders to the other an agreement to convey to him that portion of the land covered by his occupation.

If both parties fail or refuse to make entry on the terms thus prescribed then they will be allowed to make joint entry under section 2274, R. S.

Secretary Vilas to Commissioner Stockslager, July 7, 1888.

I have considered the appeal of Edward J. Doyle from the decision of your office of September 15, 1886, rejecting his final pre-emption proof, for the N. of SE. † and SE. † of SE. 1, Sec. 8, and "W. of NW. † of SW. 1" of Sec. 9, Devil's Lake district, Dakota.

Doyle filed declaratory statement, No. 126, November 2, 1883, alleg ing settlement March 21, of that year. His proof shows, that he made settlement as alleged in his declaratory statement, March 21, 1883, and resided on the land from that time until May 1, 1883; that from the latter date to August 15, 1883, he slept on the land two or three nights each week and made such improvements thereon "as his very limited * means would allow; " that from August 15 to November 1, 1883, he was confined to his bed by fever, and, being unmarried and without family, "had to be removed about six miles to the house of a friend to be cared for;" that from November 1, 1883, to January 1, 1886, he was on the land about half the time, and from the latter date to the time of his making final proof, July 23, 1886, a period of six months and twentythree days, he was on the land all the time, except two weeks in the first part of January, and one week in July, during which week he was absent hunting his team which had run away; and that bis absences, except during his said illness and the last named week when he was hunting his team, were necessary to enable him to earn a support, and, from the time of his said settlement on the land, he neither had nor claimed any other home. His improvements consisted of a frame house, ten by twelve feet, well built, a frame stable, a well, thirty acres of land broken, and six acres cultivated in crops-all valued at $300.

The local officers rejected the proof, "on the ground of insufficient residence," and your office affirmed this action of the local officers, holding that, "In default of a continuous residence of six months next prior to date of proof, the proof must be rejected.”

In this finding, I can not concur. The two weeks' absence in January, 1886, were in the first part of that month, and this left more than six months before the date of final proof, July 23, 1886. The week's absence in July, 1886, for the purpose of hunting his lost team, was entirely consistent with an intent to maintain his residence on the land, and, in legal contemplation, did not break the continuity thereof. Moreover, the purpose of the departmental rule, requiring of the preemptor six months actual residence preceding entry, is to secure an asurance of good faith on his part, and where good faith is otherwise

1

sufficiently established, the object of the rule is attained and a literal compliance therewith is not necessary. (Joseph Hoskyn, 4 L. D., 287; Israel Martel, 6 L. D., 566.)

Your office does not find that Doyle acted in bad faith, and, in my opinion, the proof leaves no room to doubt his good faith.

Doyle's declaratory statement embraced the "NW. 4" of the SW. 1 of said Sec. 9, but one, A. A. Dion had filed a declaratory statement for the whole of said SW. 4, and, it appearing that both claimants had settled upon and improved said tract prior to survey, this Department, on contest by Doyle of Dion's claim, held, "that the proper way to adjust the rights of the parties is to allow a joint entry of the tract in dispute, under Sec. 2274, Rev. Stat." (Doyle v. Dion, 4 L. D., 27.) But Doyle and Dion, disregarding the said departmental decision, agreed between themselves upon a division of the land as to which their claims conflicted, Doyle taking the W. and Dion the E. of the NW. of said SW. 4, and under this agreement, Doyle embraced said W. in his proof and Dion made cach entry of said E.. Your office properly held, that this was "unauthorized by law and by the said decision in Doyle vi Dion," and held Dion's entry as to said E. for cancellation.

Section 2274 of the Revised Statutes provides that in such cases “it shall be lawful for such settlers to make joint entry of the land or for either to enter into contract with his co-settler to convey to him his portion of said land after a patent is issued to him, and, after making said contract, to file a declaratory statement in his own name, and prove up and pay for said land, and proof of joint occupation by himself and his co-settler, and of such contract with him made, shall be proof of sole occupation and pre-emption by the applicant.

*

Under this statute, I direct that Doyle be permitted to make entry of the entire tract, upon condition that he tenders to Dion an agreement in writing to convey to Dion that part of the tract claimed and occupied by Dion, and if Doyle decline to enter into such agreement, then Dion may make entry of the entire tract, upon the condition, that he tender to Doyle an agreement to convey that portion of the tract in dispute claimed and occupied by Doyle. If both parties fail or refuse to make entry upon these terms and conditions, then they will be allowed to make joint entry, in accordance with the provisions of said statute. See Coleman r. Winfield, decided June 26, 1888 (6 L. D., 826).

The decision of your office rejecting Doyle's proof, as to the other land embraced therein, to wit, the N. of SE. and SE. of SE. of Sec. 8, is reversed.

MINING CLAIM—EVIDENCE OF DISCOVERY.

SILVER JENNIE LODE.

Evidence as to the discovery of the alleged vein or lode should be furnished showing the place where, and when such discovery was made, the general direction of the lode or vein, and all the material facts in relation thereto; and such evidence should be clear and positive, and based on actual knowledge and the witnesses' means of information be clearly set forth.

Secretary Vilas to Commissioner Stockslager, July 7, 1888.

I have considered the appeal of William N. Nason et al. from the decision of your office of January 8, 1887, holding for cancellation mineral entry, No. 66, for the "Silver Jennie Lode," Gunnison district, Colorado. In view of the facts disclosed by the record in this case and which are recited in the decision of your office bereto attached, your office properly required, in the letter of March 2, 1886, that "If a vein or lode has actually been discovered within the claimed ground" evidence must be furnished showing "the place where, and when, such discovery was made, the general direction of the lode or vein and all the materia! facts in relation thereto, and must be clear and positive and based on actual knowledge of the facts," and, "the witnesses' means of information must be clearly set forth."

The claimant first petitioned for a modification of these requirements and filed in support of said petition the affidavit of Frank P. Tanner, one of the claimants, and attorney in fact for the others, dated April 19, 1886, which sets forth that "affiant believes that said vein" (the Silver Jennie Lode) "extends throughont said location, but that said vein does not crop out from the surface so that such fact could be determined without a great deal of additional development, and that such additional development would cost many hundreds, if not thousands, of dollars and would not aid at all in the working of said mine or assist materially in extracting ore therefrom."

This petition being denied, claimants, as a compliance with said requirements of your office, filed the affidavit of James J. Lockhart, one of their number, dated september 7, 1886, "that during the month of September, 1886, he made a careful examination of said mining claim; that a mineral bearing lode or vein was discovered on said location, as stated in the application for patent; that said vein or lode, as deponent has ascertained from personal observation thereof, extends in its onward course or strike into the ground claimed in said application, and the general direction of said vein or lode is along the center line. of said location as shown by the official plat thereof now on file in the General Land Office."

Your office held this affidavit insufficient, and allowed claimant sixty days after notice of said ruling within which to make full compliance with the requirements in said letter of March 2, 1886, and thereupon

claimants filed affidavits of Frank M. Cobb, George J. Resson, and said James J. Lockhart, bearing the same date, October 5, 1886, and each in these words: "that he (affiant) is familiar with the ground claimed, having been upon and examined the same; that there has been discovered within the ground claimed in said entry a mineral bearing vein or lode, and that the vein or lode for which patent is claimed extends in its onward course or strike into said ground claimed."

These affidavits were, also, held insufficient by your office, and this presents the only question in this case. I am of the opinion that this ruling was correct. In the first place all these affidavits are evasive. The letter of March 2, 1886, called for evidence of a discovery of a vein or lode within the ground now claimed. The first affidavit of Lockhart states, that there has been such discovery "on location as stated in the application for patent," and the last three affidavits, that there has been such discovery "within the ground claimed in said entry." The "application for patent" referred to in the first affidavit only mentioned the discovery of the "Silver Jennie Lode," which is on another entry and not on the land now claimed in the present application, and part of the ground originally claimed in the entry in the case has been relinquished, so that the statement in the last three affidavits might be true and yet there might have been no such discovery on the ground now claimed.

Moreover, the requirement was for evidence of a discovery of a vein or lode on the claimed ground or that the "Silver Jennie Lode" extends into or through said ground. The response, if it be held to apply to the ground claimed, is a bare assertion that there has been such discovery and that said vein does so extend, and no fact is stated tending to establish the truth of these assertions. The affiants, also, state as their means of information, that they have been upon and examined the ground. This would not be sufficient if we are to credit the affidavit of Tanner, made in behalf of the claimants and quoted above, "that said vein does not crop out from the surface and the fact that it extends through said location can not be determined without a great deal of additional development, which would cost many hundreds, if not thousands, of dollars."

There was first, then, an abortive attempt on the part of the claimants to be relieved of the requirement of proof by a petition alleging facts tending to show that it was impracticable, if not impossible, to obtain such proof; in the next place, an evasive and otherwise wholly insufficient affidavit was filed as a compliance with the requirement, and lastly when this is rejected, and further time given for a proper response, three such evasive and insufficient affidavits are filed.

It appears also from the proof and official plat of survey, that these claimants are applicants for three entries (including the present application), each of which is based upon one and the same discovered vein or lode, and it is not shown that said vein or lode extends beyond the