most claim of the group) forming the southerly end line of the Black Lead Lode Extension. The tunnel in question appears to be located partly within the Susquehanna and partly within the Venice North Extension claim, and was constructed prior to the survey of the claim here in question. The entrymen allege that it was constructed with a view to develop the Susquehanna group and also the claim in controversy. They further allege that Giuliani, one of the entrymen, was, at the time the tunnel was constructed, the owner of an interest in the Susquehanna group, and contend, in substance and effect, that under the provisions of section 2324, Revised Statutes, and the amendment thereto of February 11, 1875 (18 Stat., 315), said 146 feet of said tunnel should be accredited to the claim in question. Said provisions and amendment read, respectively, as follows:

On each claim located after the tenth day of May, eighteen hundred and seventytwo, and until a patent has been issued therefor, not less than one hundred dollars' worth of labor shall be performed or improvements-made during each year. On all claims located prior to the tenth day of May, eighteen hundred and seventy-two, ten dollars' worth of labor shall be performed or improvements made by the tenth day of June, eighteen hundred and seventy-four, and each year thereafter, for each one hundred feet in length along the vein until a patent has been issued therefor; but where such claims are held in common, such expenditure may be made upon any one claim. (Sec. 2324, R. S.)

That section two thousand three hundred and twenty-four of the Revised Statutes be, and the same is hereby, amended so that where a person or company has or may run a tunnel for the purpose of developing a lode or lodes, owned by said person or company, the money so expended in said tunnel shall be taken and considered as expended on said lode or lodes, whether located prior to or since the passage of said act; and such person or company shall not be required to perform work on the surface of said lode or lodes in order to hold the same as required by said act. (Act February 11, 1875.)

In construing the above provisions, the courts and the Department have held that where several contiguous mining claims are held in common by the same person, association or company, and one general system has been adopted for the purpose of developing them all, the value of the work done and improvements made, whether done on only one of the claims or outside of all of them, is available toward meeting the requirements of the statute relative to expenditure as a condition precedent to obtaining patent. (See Zephyr and Other Lode Mining Claims, 30 L. D., 510, 513, and cases there cited; also Copper Glance Lode, 29 L. D., 542; Clark's Pocket Quartz Mine, 27 L. D., 351, 352.)

The entrymen have not shown, nor do they claim, that the co-owners of Giuliani in the Black Lead Lode Extension ever, at any time, had an interest in the Susquehanna group of claims. There is not, and was not at the date of the application for patent, therefore, a common ownership in the claim here in question and the claims composing the Susquehanna group, such as would constitute them a group of claims

"held in common " within the meaning of the law. (See Golden Crown Lode, 32 L. D., 217, 220.)

The decision of your office holding the entry for cancellation is affirmed.

RIGHT OF WAY-ACTS OF MARCH 3, 1875, AND FEBRUARY 15, 1901.*

OPINION.

No rights are acquired by an application for right of way under the act of February 15, 1901, prior to approval thereof by the Secretary of the Interior.

No such right is acquired by virtue of an application for right of way for a railroad under the act of March 3, 1875, before the approval thereof, and prior to the construction of the road, as will prevent the Secretary of the Interior withdrawing the lands covered thereby, for use as a reservoir site, under the provisions of the act of June 17, 1902.

Assistant Attorney-General Campbell to the Secretary of the Interior, May 6, 1904. (G. B. G.)

By departmental decision of February 11, 1904, in the case of the Denver, Northwestern and Pacific Railway Company . The HydroElectric Power Company (32 L. D., 452), the application of said power company, under the act of February 15, 1901 (31 Stat., 790), for right of way in the Grand River Canyon, Colorado, for a pipe. line and power house site to be used in the generation and distribution of electricity, was conditionally allowed, but an application by the New Century Light and Power Company, successor in interest to the Hydro-Electric Power Company, for a reservoir site in said canyon, under the acts of March 3, 1891 (26 Stat., 1995, 1101, 1102), and February 15, 1901 (supra), was denied. By the same decision it was held that the application of the Denver, Northwestern and Pacific Railway Company to amend its map for a right of way, 5.72 miles, through said canyon, under the act of March 3, 1875 (18 Stat., 482), was superior to the application of the New Century Light and Power Company, above referred to, and the Commissioner of the General Land Office was directed to forward for approval the said Hydro-Electric Power Company's map for pipe line and power house site, and the said railway company's amended map, unless objections other than those considered in the decision should appear.

Under date of April 21, 1904, the Director of the Geological Survey recommended to this Department the withdrawal of certain lands within the Grand River Canyon for irrigation works, in accordance with the provisions of section 3 of the act of June 17, 1902 (32 Stat., 388). And inasmuch as the withdrawal of these lands would interfere with the use of the canyon by both the Hydro-Electric Power Company and the Northwestern and Pacific Railway Company in accordance with their plans as evidenced by the maps above referred to, the

matter has been referred to me for opinion as to whether or not the denial and rejection of said applications for rights of way and the withdrawal of said lands for reservoir purposes under the act of June 17, 1902, supra, "can be lawfully done."

It is submitted by the Geological Survey that the Grand River Canyon offers the only practical reservoir site for the storing of waters necessary to the reclamation of about two million acres of land on the lower Colorado river; that this land can be reclaimed only through a system of irrigation which includes this reservoir site, and that its reclamation will furnish support for a population of one million inhabitants; that if the said railway company's amended map should be approved in accordance with the decision referred to it must result. either that the present reclamation scheme will be abandoned, or that the government will be forced to pay the railway company a large sum in damages for the removal of its road bed; that the right asked for by the said railway company will be, if granted, under the act of 1875, supra, a mere gratuity, and that inasmuch as the land is needed by the government, the land department should, in view of the circumstances, refuse to incumber it in such way as must ultimately put the government to vast expense or cause its abandonment of an important enterprise.

These considerations involve questions of executive discretion and under the reference do not fall within the scope of the opinion desired. The question submitted is, whether the applications for rights of way tentatively adjudged by the decision referred to in favor of said power company and said railway company may be denied, and whether the Secretary may refuse to approve the maps therein directed to be submitted.

It is well settled that an application for right of way under the act of February 15, 1901, supra, is without effect unless, acting thereon, the Secretary of the Interior by his approval grants the permission for use as applied for. The applicant takes no right whatever by virtue of an application filed under that act.

A more serious question arises, however, in regard to the application of said railway company for right of way under the act of March 3, 1875, supra, especially in view of the action heretofore taken by the Department thereon. In the case of Jamestown and Northern Railroad Company v. Jones (177 U. S., 125), it was held that the right of way granted to a railroad company by the act of March 3, 1875, took effect upon the construction of the company's road without regard to the time of filing the map prescribed by said act. It was further said, at page 131 of said decision, that the company might secure the grant in advance of construction, "by filing a map as provided in section 4.” The question of the effect of the filing of such map was not, however, directly involved in that case, and what was said upon this question

was not at all necessary to the decision therein. In view of other decisions of the supreme court, especially that of Noble v. Union River Logging Railroad Company (147 U. S., 165), it would seem that the language used on p. 131 of the decision in 177 U. S.,,above mentioned, was not only in the nature of dicta, but also that its effect, if literally followed, would be to cause conflict with other decisions in which the question was directly involved.

From an examination of the said decision in 147 U. S., supra, it is apparent that no vested rights are secured under the act of 1875 by the mere filing of the map therein provided for. In that case, at page 176, it was said: "The lands over which the right of way was granted were public lands subject to the operation of the statute, and the question whether the plaintiff was entitled to the benefit of the grant was one which it was competent for the Secretary of the Interior to decide, and when decided, and his approval was noted upon the plats, the first section of the act vested the right of way in the railroad company," and it was held that the approval by the Secretary of the Interior of the railroad company's map created a vested right, which it was not within his power or within the power of his successor in office to annul. This holding is put clearly upon the ground that the final act of the executive was the approval of the map by the Secretary of the Interior, and that thereafter the land department was without jurisdiction. It necessarily results, if the final act of the executive in the administration of said act is the approval of maps filed thereunder, that until such approval, the company's road not having been constructed, the Secretary of the Interior, in the exercise of a sound discretion, may take such action with regard to the land involved as is permitted by all of the laws of the United States applicable thereto.

This case would seem to be conclusive of the questions here presented. The decision of this Department, above referred to, did not in law amount to an approval of the amended map for right of way of the Denver, Northwestern and Pacific Railway through the Grand River Canyon. It was merely an adjudication that this company had a superior right under such amended application to the use of said canyon for railway purposes over that of the New Century Light and Power Company for reservoir purposes. No other question was considered. The case was remanded to the General Land Office with express directions to submit said map for the approval of the Department only in the absence of objections other than those considered in the decision itself. That map has not as yet been submitted in accordance with said directions, there has been no approval thereof by the Secretary of the Interior, and there is no evidence before the Department that the company's road has been constructed.

I advise you that, if in your judgment good administration demands the rejection of said applications of the Hydro-Electric Power Com

pany and the Denver, Northwestern and Pacific Railway Company for rights of way in the interest of the irrigation scheme proposed by the Director of the Geological Survey, you are authorized to do so. In this connection, I call your attention especially to the aforesaid ruling that a right of way may be acquired under the act of 1875 by construction, and suggest that, if the government desires the use of this canyon for irrigation purposes, the lands should be speedily withdrawn. But in view of the very considerable expense to which the interested companies have been put, and in view of the aforesaid decision of the Department in their favor, it would seem that the withdrawal should, for the time being, be temporary and provisional, and that these companies should have special notice thereof and be accorded an opportunity to be heard.

Approved:

E. A. HITCHCOCK, Secretary.

RULES AND REGULATIONS UNDER THE ACT OF FEBRUARY 20, 1904, FOR THE SALE OF A PART OF THE RED LAKE INDIAN RESERVATION IN THE STATE OF MINNESOTA.

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., May 10, 1904.

The act of Congress of February 20, 1904 (33 Stat., 46), provides: SEC. 3. That the Secretary of the Interior is hereby authorized and directed to sell, subject to the homestead laws of the United States, under such rules and regulations as he may prescribe, in tracts not to exceed one hundred and sixty acres to each individual, all that part of the Red Lake Reservation, in the State of Minnesota, lying westerly of the range line between ranges thirty-eight and thirty-nine west of the fifth principal meridian, approximating two hundred and fifty-six thousand acres. And the said land shall be sold for not less than four dollars per acre, and shall be sold upon the following terms: One-fifth of the price bid therefor to be paid at the time the bid is made, and the balance of the purchase price of said land to be paid in five equal annual installments, due in one, two, three, four, and five years from date of sale, respectively, payment to be made to the receiver of the United States land office for the district in which said land may be situated. And in case any purchaser fails to make such annual payments promptly when due, or within sixty days thereafter, all rights in and to the land covered by his or her purchase shall at once cease, and any payments made shall thereupon be forfeited and the Secretary of the Interior shall thereupon declare such forfeiture by reoffering said land for sale. And no patent shall issue to the purchaser until the purchaser shall have paid the purchase price and in all respects complied with the terms and provisions of the homestead laws of the United States: Provided, That such purchaser shall have the right of commutation as provided by section twenty-three hundred and one of the Revised Statutes of the United States, by paying for the land at the price for which it sold, receiving credit for payments previously made: Provided further, That such purchaser shall make his final. proof conformable to