in Hallett and Hamburg Lodes (25 L. D., 104, 108); paragraph 51 of the Mining Regulations of December 15, 1897 (25 L. D., 563, 578); paragraph 51 of the Mining Regulations of June 24, 1889 (28 L. D., 579, 603); and paragrah 46 of the Mining Regulations of July 26, 1901 (31 L. D., 453, 482).

In determining whether or not the published notice is in accordance with the statute and the mining regulations made in pursuance thereof, the notice must be taken as a whole. If, when so taken, the notice does not appear to contain sufficient correct data to put persons of ordinary intelligence and prudence interested in the land applied for upon inquiry, and "to enable any one interested to ascertain with accuracy the position of the claim," it fails to comply with the requirement of the statute and the mining regulations. (Hallett and Hamburg Lodes, 27 L. D., 104, 108, 110.)

The notice in question particularly describes the lode claim. It does not describe the mill site claim. It simply states that the latter is contiguous to the former, and that "Post No. 2" of the former is the "N. W. corner" of the latter. To persons of ordinary intelligence and prudence, who might have been interested in the land covered by the mill-site claim, but who were not familiar with said land by the name of the Peachy Mill Site claim, this statement in the published notice, would not, in the opinion of the Department, convey sufficient information to put them upon inquiry and to enable them to ascertain with accuracy the position of the claim upon the ground. Therefore, the decision of the Department complained of in respect to said notice

was erroneous.

There having been no published notice of the application for patent, in respect to the mill site claim, such as the statute requires, the entry, to the extent that it embraces the land covered by such claim, was improperly allowed and should be canceled.

In view of the above it is unnecessary to consider the question whether or not the land embraced in the mill site claim was of known mineral character at the date of the entry. It is sufficient to say that the evidence shows that the land in question is now known to be mineral in character, hence such land is not now subject to entry as a mill site claim.

The departmental decision of February 3, 1903, holding "that no good reason appears why the mill site should not be passed to patent," is hereby recalled and vacated, with directions to cancel the entry to the extent that it embraces said mill site claim.

ARID LAND-MINERAL LOCATIONS-TIMBER AND STONE APPLICATIONS WITHDRAWAL UNDER ACT OF JUNE 17, 1902.

INSTRUCTIONS.

A mineral location founded on actual discovery of a valuable deposit of mineral within the limits of the claim, and maintained in accordance with the mining laws and local regulations applicable thereto, excepts the land covered thereby from the operation of a withdrawal for irrigation purposes made under the provisions of the act of June 17, 1902.

No such vested right is acquired by an application to purchase lands under the timber and stone laws, prior to final proof and payment, as will deprive Congress of the power to make other disposition of such lands.

Withdrawals made by the Secretary of the Interior under authority of the act of June 17, 1902, of lands which in his judgment are required for irrigation works contemplated under the provisions of said act, have the force of legislative withdrawals and are therefore effective to withdraw from other disposition all lands within the designated limits to which a right has not vested.

Secretary Hitchcock to the Director of the Geological Survey, January (F. L. C.) 13, 1904. (E. F. B.)

Referring to your letter of October 24, 1903, asking to be advised as to the status of mining claims upon lands withdrawn for reservoir sites or permanent works, under the act of June 17, 1902 (32 Stat., 388), providing for the construction of irrigation works for the reclamation of arid lands, I transmit herewith for your information a copy of a report from the Commissioner of the General Land Office, to whom your letter was referred.

As to mineral locations made under the provisions of sections 2320 et seq. of the Revised Statutes, the Commissioner concludes that in order to defeat the operation of a withdrawal made under said act the location must have been made prior thereto and be a valid one-that is, founded on an actual discovery by the locator of a valuable deposit of mineral within the limits of the claim and maintained in accordance with the mining laws and local regulations applicable thereto. As to what rights are acquired under applications to purchase lands under the timber and stone laws, which is involved in your inquiry, he expresses the opinion, under authority of the decisions of the Department, that no right is vested under such applications until final proof has been submitted and the purchase money paid; that until such time no right is acquired as against the government which would deprive Congress of the power to dispose of the land.

As a general rule, Congress has the absolute power to withhold from disposition any of the public lands to which a claim has been asserted under the general land laws, but as to which no right has vested, or to dispose of such lands in any manner that it deems proper. The withdrawals made by the Secretary of the Interior under authority of the act of June 17, 1902, of lands which in his judgment are required for

any irrigation works contemplated under the provisions of said act, have the force of legislative withdrawals and are therefore effective to withdraw from other disposition all lands within the designated limits to which a right has not vested. The purpose to confer upon the Secretary of the Interior such power is further manifested by the authority given him to withdraw from entry, except under the homestead law (the only class of entries specially excepted), any public lands believed to be susceptible of irrigation from such works, and directing that such lands shall not be disposed of except under the homestead law and in tracts of such area, by legal subdivisions, as in his opinion may reasonably be required for the support of a family.

To effectually accomplish the purpose of the act, it is necessary that the executive officer charged with the duty of enforcing its provisions should be invested with ample power and authority to obtain control and possession of all lands that may be required for any irrigation works contemplated under said act. To this end, he is authorized to acquire by purchase or condemnation any rights or property which in his judgment may be needed for the purpose of carrying out the provisions of the act. In conferring such power it could not have been intended to withhold from him the power and authority to control and acquire possession of lands needed for such works where the legal and equitable title is in the United States. Therefore, unless a claimant to lands covered by such withdrawals had acquired at the date of such withdrawals a vested interest in the land so as to deprive Congress of the power of disposition and control over the same, it is subject to the operation of such withdrawals.

With reference to the character of rights acquired by claimants to lands under the mineral laws (Secs. 2320 et seq., Revised Statutes) only the general rule can be stated. A safe and comprehensive statement of that rule is found in the decision of the Department in American Hill Quartz Mine (Sickels' Mining Laws, 377, 385), quoted approvingly by the supreme court in Benson Mining Co. v. Alta Mining Co. (145 U. S., 428, 430):

At the outset it is proper to remark that by the mining laws of the United States three distinct classes of titles are created, viz.: 1. Title in fee simple. 2. Title by possession. 3. The complete equitable title. The first vests in the grantee of the government an indefeasible title, while the second vests a title in the nature of an easement only. The first, being an absolute grant by purchase and patent without condition, is not defeasible, while the second, being a mere right of possession and enjoyment of profits without purchase and upon condition, may be defeated at any time by the failure of the party in possession to comply with the condition, viz.: to perform the labor or make the annual improvements required by the statute. The equitable title accrues immediately upon purchase, for the entry entitles the purchaser to a patent, and the right to a patent once vested is equivalent to a patent issued.

After a complete equitable title has vest d, the no longer exercise ownership over the property.

United States can
But it will be seen

that a poss ssory right may also be acquired under the mining laws, which is a vested right, although the acquisition of title is not contemplated. Such a right, however, is subject to be divested by failure to comply with the law, and the land department has jurisdiction to determine that question and to declare by its judgment whether such right has been divested, so as to restore the land to the control of the government. As to such possessory claims no definite rule can be given for your guidance, in the absence of some particular case.

HOMESTEAD SETTLER-SECTION 2291, R. S.-HEIRS.

TERRY ET AL. v. HEIRS OF WILLIAM H. DAVIS.

In the event the widow and immediate heirs of a deceased homestead settler, who has earned title to the land by compliance with law, die without having availed themselves of the right to perfect the settler's claim under the provisions of section 2291 of the Revised Statutes, such right does not lapse or become forfeited, but passes to the next of kin of the decedent, who are his "heirs" within the meaning of said section.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) January 13, 1904.

(E. J. H.)

This case is before the Department upon the appeal of Delbert S. Terry from your office decision of March 24, 1903, rejecting his homestead application, filed March 8, 1902, for lots 7, 8, 9 and the SW. of SE. and SE. of NE. of Sec. 27, T. 5 S., R. 8 E., Bozeman, Montana, land district, and allowing the heirs of William H. Davis, deceased, to make entry of said tracts.

The above-described tracts are within the primary limits of the grant to the Northern Pacific Railroad Company under the act of July 2, 1864, and the map of definite location of the company's line of road opposite thereto was filed July 6, 1882.

On March 13, 1893, William H. Davis tendered homestead application for said tracts which was rejected by the local officers for conflict with the grant to the Northern Pacific Railroad Company. Subsequently Davis filed an affidavit alleging that at the date of the definite location of the road said tracts were settled upon and in the bona fide occupation of a person qualified to make entry thereof and had ever since been so occupied, and claiming that on account thereof they were excepted from the grant. Thereupon a hearing was had which resulted in a decision by the local officers in favor of Davis, which action was on appeal affirmed by your office September 28, 1895, and the railroad company appealed therefrom to the Department.

In the meantime, however, Davis had died, in June, 1894, leaving surviving him a widow, Nannie Davis, who in October following gave birth to a child, which died in 1896. Subsequently to the birth of said

child, and while it was living, Mrs. Davis was married to one E. L. Fridley, with whom she lived until her death on August 14, 1897. Fridley likewise died March 7, 1902.

Subsequently to the passage of the act of July 1, 1898, for the adjustment of conflicting claims between settlers and the Northern Pacific Railroad Company, on February 18, 1899, the Department returned the papers to your office with instructions to adjust the case under said act, and under date of May 17, 1899, your office directed that said Nannie Davis be allowed ninety days within which to proceed under said act, not being aware of the fact that she had been married to Fridley and had since died.

In response to said notice Fridley, on August 22, 1899, filed his election, as the representative of the heirs of William H. Davis, to retain the land. This was approved by the Department and the railway company relinquished its claim to the land under said act, the same was accepted and the case closed as to the company by letter of February 13, 1900, in which the local officers were instructed to allow Fridley to make homestead entry as the representative of the heirs of William H. Davis, deceased. Fridley, however, took no action toward perfecting his application for the land.

March 8, 1902, the day after Fridley's death, Delbert S. Terry tendered his homestead application for said tracts, which was rejected by the local officers on the ground that the same were not subject to entry because they were held for the benefit of the heirs of William H. Davis; from which Terry appealed.

Subsequently, the following homestead applications were tendered for said tracts:

March 13, 1902, by George W. McClanahan, as the brother and heir of Nannie Davis, on behalf of her heirs;

March 17, 1902, by Harry W. Dyer, claiming abandonment of the land by Nannie Davis upon her marriage to Fridley;

April 19, 1902, by John Fennigham, alleging continuous residence thereon ever since November, 1898.

These several applications were rejected by the local officers because of the right of Fridley to make entry thereof in the interest of the heirs of William H. Davis; from which appeals were taken by each of said parties.

April 27, 1902, your office, in view of the foregoing claims and allegations, directed that a hearing be had, in order to determine the lawful heirs of William H. Davis, and to permit them to rebut the allegations of abandonment of the land. The hearing was had, commencing September 16, 1902, and resulted in the holding by the local officers, on October 8, 1902, that the charge of abandonment had not been sustained, and that the "heirs" of William H. Davis should be allowed to enter the land, under the homestead application of George O. Davis,