3. That the evidence shows that the twenty acres denominated as the Heel Calk sub-division, contain a valuable deposit of sandstone which is sufficient to sustain that portion of the entry, even though it be a different kind of mineral from that for which the claim was originally located.

As to the first proposition, it may be said that section 2325 of the Revised Statutes, is a statute of repose only so far as to bar the assertion of adverse mining claims not filed within the period of publication, and that it does not relieve the land department from ascertaining whether the land sought to be patented is mineral in character and therefore subject to disposition under the mining laws. The land department is charged with the duty of disposing of the public lands in the manner provided by law, and its officers must determine the character of the land and dispose of it only under the law applicable thereto. That non-mineral land can not be disposed of under the mining laws is a cardinal rule in the administration of the public land laws. The second proposition was practically rejected by the decision under review, but it is insisted by the mineral claimants that that decision and the rule announced in the Union Oil Company case (25 L. D., 351), can not both stand, and that if the former prevails it is a repudiation of the latter.

There is no such conflict. In both decisions it is held that one discovery upon a claim, whether it be of twenty acres or of one hundred and sixty acres, is sufficient to authorize a placer location thereof, but in neither case is it held, either directly or by intendment, that such discovery is conclusive as to the mineral character of the entire claim, or that all the land therein can be acquired as appurtenant to the mineral deposits in the portion containing the discovery.

Under section 2320 of the Revised Statutes a lode claim may extend fifteen hundred feet along a discovered vein or lode and, to secure the convenient working of the claim and give location and precision to its boundaries, may incidentally include surface ground to the extent of three hundred feet on each side of the middle of the vein at the surface, irrespective of the character of such surface ground.

It is contended that a like principle applies to placer claims and that as an incident to the mineral deposits developed by the discovery and for which the location is made the claim may include the full area of twenty acres for each person participating in the location, not exceed ing in all one hundred and sixty acres, irrespective of its character; in other words, that a discovery of placer mineral deposits will support a location of twenty acres by a single individual or one hundred and sixty acres by an association of eight persons whether the mineral deposits extend throughout the entire claim or are confined to the immediate locality of the discovery. This contention is based upon section 2329 of the Revised Statutes, which makes placer claims "subject to entry and patent under like circumstances and conditions and upou similar proceedings as are provided for vein or lode claims.”

Section 12 of the act of July 9, 1870 (16 Stat., 217), from which this section was taken, reads as follows:

And be it further enacted, That claims, usually called "placere," including all forms of deposit, excepting veins of quartz or other rock in place, shall be subject to entry and patent under this act, under like circumstances and conditions, and upon similar proceedings, as are provided for vein or lode claims: Provided, That where the lands have been previously surveyed by the United States, the entry in its exterior limits shall conform to the legal subdivisions of the public lands, no further survey or plat in such case being required, and the lands may be paid for at the rate of two dollars and fifty cents per acre: Provided further, That legal subdivisions of forty acres may be subdivided into ten-acre tracts; and that two or more persons, or associations of persons, having contiguous claims of any size, although such claims may be less than ten acres each, may make joint entry thereof: And provided further, That no location of a placer claim, hereafter made, shall exceed one hundred and sixty acres for any one person or association of persons, which location shall conform to the United States surveys; and nothing in this section contained shall defeat or impair any bona fide pre-emption or homestead claim upon agricultural lands, or authorize the sale of the improvements of any bona fide settler to any purchaser.

While this statute remained in full force placer claims upon surveyed lands had to be so located that their exterior limits would conform to the legal subdivisions of the public lands. These subdivisions were established by the rectangular system of public surveys which of course were not coincident with the lines which separate mineral lands from non-mineral lands, and therefore placer claims located upon surveyed lands during the continuance of this act frequently had to include within their exterior limits some non mineral lands in order to embrace the desired mineral lands and at the same time conform to the legal subdivisions of the public lands. But the extent to which nonmineral lands would have been otherwise included in placer locations made under this act was greatly lessened by the provision for the subdivision into ten acre tracts of forty acre legal subdivisions, the smallest theretofore recognized by law.

The provision in the act of July 9, 1870, in respect to the necessity of conforming placer claims upon surveyed lands to the legal subdivisions of the public surveys was modified by section 10 of the act of May 10, 1872 (17 Stat., 91; Rev. Stat., Sec. 2331), which declared:

and all placer mining claims heretofore located shall conform as near as practicable with the United States system of public land surveys and the rectangular subdivisions of such surveys, .. but where placer claims cannot be conformed to legal subdivisions, survey and plat shall be made as on unsurveyed lands: . . . . and provided, also, that where by the segregation of mineral land in any legal subdivision a quantity of agricultural land less than forty acres remains, said fractional portion of agricultural land may be entered by any party qualified by law, for homestead or pre-emption purposes.

The purpose of this modification is well stated in the case of William Rablin (2 L. D., 764).

The provisions in the later act to the effect that placer claims thereafter located should conform "as near as practicable" to the public

surveys and the rectangular subdivisions thereof, and that where they could not be so conformed they should be surveyed and platted as on unsurveyed lands, and the recognition therein given to the segregation of mineral lands from non-mineral lands in legal subdivisions of forty acres or more, make it evident that the discovery of placer mineral deposits within a legal subdivision of forty acres or more was not intended to necessarily establish the mineral character of the entire subdivision.

Considering all the statutes relating to mining claims it seems clear that it was not their purpose to permit the entire area allowed as a placer claim to be acquired as appurtenant to placer deposits irrespective of their extent. Under the law discovery of mineral deposits is an essential act in the acquisition of mineral land, and while a single discovery is sufficient to authorize the location of a placer claim and may, in the absence of any claim or evidence to the contrary, be treated as sufficiently establishing the mineral character of the entire claim to justify the patenting thereof, such single discovery does not conclusively establish the mineral character of all the land included in the claim so as to preclude further inquiry in respect thereto.

It would not comport with the spirit of the mining laws to hold that where a placer mineral deposit is discovered in any forty acre subdivision of the public lands, an association of eight persons is authorized to embrace in a mining location founded upon such discovery three other contiguous forty acre subdivisions of non-mineral land and to receive a patent for the same as a part of their mining claim, and yet this would logically follow if the contention of these mineral claimants were sustained.

The claim is upon unsurveyed lands and therefore is only indirectly affected by the statutes relating to the form of placer claims located upon surveyed lands.

As to the third proposition, if it is shown that what is denominated the Heel Calk subdivision contains any valuable mineral deposit subject to placer location, even though it be different from the one for which the location was originally made, that so-called subdivision should not be excluded from the entry. The decision under review finds that this twenty acres does not contain any mineral deposit of practical value and subject to placer location, and a careful examination of the evidence made in the light of the motion for review shows that this finding is fully sustained. While there was testimony tending to show that it contains a deposit of sandstone, the great weight of the evidence clearly demonstrates that the only stone found therein is a rotten sandstone which can be readily broken with the hand. A sample of this was offered in evidence, and by the testimony of disinterested stone masons and quarrymen it is shown to be without value.

The motion is denied.

SECOND CONTEST-RESIDENCE-FINAL PROOF.

HANSING V. ROYSTON.

The institution of a second contest, by one who has theretofore filed affidavit of contest against the same entry, is a waiver of any right on the part of such contestant to proceed under the first charge.

The law does not require residence of a homesteader after the submission of final proof, if such proof upon examination is found satisfactory.

No one but a claimant of record is entitled to special notice of the intention of a homestead entryman to submit final proof.

A slight mistake in the spelling of the applicant's name in the published notice of his intention to submit final proof is immaterial, where no one is misled thereby, and the identity of the applicant is undisputed.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.)

July 10, 1899.

(G. B. G.)

September 20, 1893, Florence Royston made homestead entry for the S. of the NW. 4 of Sec. 27, T. 21 N., R. 1 W., Perry, Oklahoma. December 12, 1893, Richard Hansing filed his affidavit of contest against said entry, alleging prior settlement.

A hearing was ordered and had, and August 29, 1895, the local officers rendered a decision in the case recommending that the entry be sustained.

October 10, 1896, upon the appeal of Hansing, your office sustained the decision of the local officers and held that the plaintiff had "failed to establish by a preponderance of proof that he was the prior settler." January 2, 1897, Hansing filed a motion for a rehearing, alleging that since the trial of the case before the local office he had discovered witnesses who would swear that Royston entered the territory of Oklahoma during the prohibited period. This motion was supported by a number of affidavits.

January 4, 1897, Hansing appealed from your office decision of October 10, 1896, and July 22, 1898, the Department affirmed the decision appealed from and overruled the motion for a rehearing, on the ground that the showing made did not authorize a reopening of the case, because the statements made in the motion and affidavits filed in support thereof were inadequate to overcome the testimony already in the record upon the question of soonerism.

Hansing filed a motion for a review of this decision, which was denied. by the Department, October 8, 1898.

In the meantime, and on December 14, 1895, "Florence B. Hinchey, nee Royston," submitted final proof, which was suspended to await a final disposition of the contest then pending, and, June 17, 1896, Hansing filed a second affidavit of contest, alleging that the defendant had wholly abandoned said land for more than six months since making said entry and removed therefrom her household goods, and that she had not resided thereon any portion of the time since about December 16,

1895, and that the default existed at the date of the execution of his affidavit.

No action appears to have been taken by the local officers upon this affidavit, but, October 15, 1898, Hansing filed an "affidavit of protest and contest," alleging prior settlement, residence and permanent improvements, that the entryman was disqualified by reason of her premature and unlawful entrance into the Territory, and protesting against the approval of the final proof, for the reason that affiant was not given special notice that the entry woman would submit final proof on December 14, 1895, and that the receiver's duplicate receipt shows that said entry was made under the name of Florence Royston, that the published notice calls for a person by the name of Florence B. Hinchey, nee Florence "B. Rayston," and that said notice is therefore irregular and void, and insufficient to support the final proof.

October 29, 1898, upon the motion of the defendant, the local officers dismissed this protest, and, October 31, 1898, approved the entrywoman's final proof.

Hansing again appealed to your office, and in that appeal reference is made to his contest affidavit, filed June 17, 1896, and it is alleged that notice of that contest affidavit was served upon the defendant.

January 19, 1899, your office dismissed Hansing's contest affidavit, filed June 17, 1896, and sustained the action of the local officers dismissing the "protest and contest" filed October 15, 1898.

The further appeal of Hansing brings the case to the Department. In consideration of the foregoing history of the case, it will be disposed of as current work.

The action of your office dismissing Hausing's affidavit of contest, filed June 17, 1896, was correct. The institution of a second contest is a waiver of any rights the contestant may have had under the first. When Hansing filed his affidavit of contest, October 15, 1898, he waived his right to prosecute a contest under his affidavit of June 17, 1896. Waters et al. v. Sheldon (7 L. D., 346). Besides, the abandonment charged in that affidavit is alleged to have occurred after the submission of final proof, and the law does not require residence of a homesteader after the submission of final proof, if such proof upon examination shows compliance with law.

Every allegation contained in the affidavit of October 15, 1898, has been already decided adversely to the contestant, except the allegation of irregularity in the submission of final proof.

There has been a final adjudication here that Hansing was not, and that Royston was, the prior settler upon the land involved; that the evidence offered by Hansing in support of his motion for a new trial, on the ground of the alleged soonerism of the defendant, was not sufficient to reopen this case, and no additional proof of such charge has since been offered.

It is not material that Hansing was not given special notice that the 2967-VOL 29-2