entry woman would submit final proof on the day named. No one but a claimant of record is entitled to special notice of the intention of a homestead entryman to submit final proof, and Hansing was not a claimant of record. It was finally determined that as against Royston he had no valid claim to the land, and the final proof was not accepted until his claim had been denied.

There was no such irregularity in the notice as warrants the rejection of the final proof. The small mistake in writing the name Florence "B. Rayston," instead of Florence Royston, did not mislead Hansing, nor is it alleged that he was misled thereby, or that the person who published the notice is not the same person who made the entry. The final proof upon this case has been examined and is found sufficient.

The decision appealed from is affirmed.

GOURLEY v. COUNTRYMAN.

Petition for re-review filed by contestant denied July 10, 1899, by Secretary Hitchcock. See 27 L. D., 702, and 28 L. D., 198.

RIGHT OF WAY-RAILROAD-CANALS AND DITCHES.

ST. PAUL, MINNEAPOLIS AND MANITOBA RY. Co.

The approval of a map of location, or a plat of station grounds, under the provisions of the act of March 3, 1875, affects only public lands, and if there are no public lands to be affected by the claimed right of way the maps should not be approved by the Department.

Regulations of November 4, 1898, 27 L. D., 663, with respect to railroad right of way applications amended as to paragraphs 11 and 22, and directions given as to the amendment of the regulations of July 8, 1898, 27 L. D., 200, governing applications for right of way for canals, ditches and reservoirs.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V.D.) July 10, 1899. (F. W. C.)

With your office letter of June 19, last, was forwarded a map of location and two plats of station grounds filed by the St. Paul, Minneapolis and Manitoba Railway Company, for approval by the Secretary of the Interior under the provisions of the act of March 3, 1875 (18 Stat., 482). The date of the filing of the map of location and station plats is not given, but from your letter it appears that the same were filed within twelve months after the filing of the approved plat of survey of the townships included within the location and the ground claimed for station purposes. It further appears that they were filed prior to the approval of the circular of November 4, 1898 (27 L. D.,

663), and that they were prepared in conformity with the regulations in force at the date of their filing.

An examination of these maps by your office disclosed certain minor defects, and they were returned to the company for correction March 1, 1899, and in the letter returning the maps the company was directed to comply with the requirements of said circular of November 4, 1898. From your letter it appears that the company has complied fully with all the requirements of your office except the marking of the vacant tracts crossed by the right of way as required by paragraph eleven of the circular of November 4, 1898.

It is stated by the attorney for the company, in his letter of April 14, 1899, returning said maps, that:

The company has not, however, indicated upon said maps the vacant lands through which the road passes or upon which said station grounds may be situated as required by paragraph 11 of the circular of November 4, 1898, concerning railroad right of way, for the following reasons: The act of March 3, 1875, provides that any company desiring to secure the benefits of the said act shall, within twelve months after the location of any section of twenty miles of its road, if the same be upon surveyed land, and if upon unsurveyed land, within twelve months after the survey thereof by the United States, file a map of its road with the register of the land office for the district where such land is located. The act clearly contemplates, or at least permits, the location and construction of the road over unsurveyed land and allows the company twelve months after the survey within which to file a map of its road.

The line represented upon the map filed under the act of 1875 was, as shown by the affidavit of the chief engineer, located during the month of September, 1886, and was actually constructed between the 15th of October, 1886, and the 28th day of May, 1887, and has since been constantly operated and the grounds selected for stations occupied by the company. Any question of priority of right which may be raised between the railway company and persons who have settled upon, occupied or entered the land since the actual location of the road or occupation of the station must be determined by the courts and not by the Department. Should the company designate upon the map filed by it the lands that are now vacant its action in so doing might be construed by the courts as limiting and restricting its application for right of way to such lands only.

In your office letter submitting these maps you state that:

Since the date when this company was required to comply with the regulations of November 4, 1898, I have decided that such compliance would not be insisted upon where the application was filed before the promulgation of said circular, and was prepared in other respects in conformity with the regulations in force at the date of filing; and I, therefore, recommend that, as the application is prepared in accordance with the regulations in force at the date of filing, the map and plats be approved, subject to all valid existing rights.

As the company has raised the question concerning the marking of the vacant tracts in connection with this application, I have deemed it proper to submit it; and would respectfully request that the question involved be considered, and that instructions be given this office for its future guidance in considering these applications. I would say, also, that the same questions arise under paragraph 11, circular of July 8, 1898, concerning right of way for canals and reservoirs under Secs. 18 to 21, act of March 3, 1891 (26 Stat., 1095).

The company having complied fully with the regulations in force at the time of the filing of these maps, they are, in accordance with the recommendation of your office, herewith returned, approved, subject to any valid existing rights.

Referring to the portion of your office letter submitting these maps in which you request instructions for your future guidance in the matter of the requirements contained in paragraph eleven of the instructions of November 4, 1898, making it the duty of the applicant to mark each subdivision affected by the right of way "V" or "Vacant" if it belongs to the public domain at the time of the filing of the map in the local land office, and further requiring a verification thereof by the register of the local land office, you are informed that, after careful consideration of the matter, as the act making the grant does not contain such requirement, and as no good reason appears therefor, you will not in future exact compliance therewith. It is clear, however, that the approval of a map of location or of a plat of station grounds under the provisions of the act of March 3, 1875, supra, affects only public lands, and if there are no public lands to be affected by the claimed right of way the maps should not be approved by the Department. When maps of location or station plats are filed in the local land office they should therefore be examined by the register, in connection with the plats and records of his office, to ascertain whether there are any public lands falling within the claimed right of way. It is not necessary that all the lands to be affected by the right of way should be indicated upon the map of location. If, upon an examination of the records, it does not appear that some portion of the public land would be affected by the approval of the map, the local officers should return it, advising the applicant of that fact. Paragraph 22 of the regulations approved November 4, 1898, will therefore be amended by adding the following:

"If it does not appear that some portion of the public land would be affected by the approval of such maps, they will be returned, advising the applicant of that fact."

In this connection it is directed that the regulations approved July 8, 1898 (27 L. D., 200), relating to right of way for canals, ditches and resevoirs over the public lands and reservations, be likewise amended or modified.

TOWNSITE ENTRY-MINERAL LANDS-SECTION 16, ACT OF MARCH 3,

1891.

HULINGS. WARD TOWNSITE.

A townsite entry made on mineral lands under the provisions of section 16, act of March 3, 1891, should not be allowed to include lands theretofore patented under the mining law.

A townsite patent issued under the provisions of said section will not disturb or impair rights under any valid mining claim or possession existing at the time of the townsite entry, or deprive the Department of jurisdiction to subsequently issue patent for any such mining claim or possession on due showing of compliance with the mining law.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) July 10, 1899. (L. L. B.)

The record in this case shows that September 28, 1897, James A. Rundell, mayor of the incorporated town of Ward, in the State of Colorado, made townsite entry, as trustee for the inhabitants of said town, for the S. of SE., Sec. 1, and the N. of the NE. of Sec. 12, T. 1 N., R. 73 W., Denver, Colorado, under the provisions of section. 2387 of the Revised Statutes, and of section 16 of the act of March 3, 1891 (26 Stat., 1095, 1101).

November 29, 1897, W. W. Hulings filed in the local office a protest against the issue of patent upon said townsite entry, alleging, in substance, that the land embraced in said entry is mineral in character; that at the time said entry was made, and for many years prior thereto, there were a great many locations of veins or lodes of mineral within the limits thereof; that such locations were possessed and owned by protestant and others, and such possession and ownership were recog nized by local authority and by the laws of the United States; that at the date of the townsite application, the protestant was and still is the owner and in possession of the following lode mining claims: The Columbia Extension lode; the South Columbia lode; the North Columbia lode; The Lucy Avendale lode; The St. Lawrence lode; The Bancroft lode; and the Montrose lode, all located on lands covered by said application, and also a mill-site known as the Columbia mill-site, situated adjacent to the said St. Lawrence lode; that within each of said mining claims mineral bearing rock has been discovered and developed, the existence of which was well known to the inhabitants of said town of Ward long prior to the townsite application; that the possession and ownership of said mining claims by protestant were also well known to the inhabitants of said town and to said Rundell, when the townsite application was filed; that since the location of four of said mining claims, squatters have gone upon the land embraced within them and are now claiming surface rights therein as against the rights of this protestant; that said Rundell has published notice calling upon

mining claimants within the limits of the townsite entry to file their claims within ninety days, setting forth their rights, etc., and has announced that he would not recognize any claim by protestant to any of the surface ground within his said mining claims, for the alleged reason that under the townsite entry, he as trustee, has received the full title to all the land covered thereby and that protestant can have no surface rights therein based on the location, possession and ownership of his said mining claims; that protestant has expended $50,000 in working and developing his said several mining claims and has taken therefrom more than $200,000 worth of mineral; that he has placed upon said claims which are adjacent to one another, and constitute a group, improvements of the value of $12,000; that the surface ground embraced by said mining claims is absolutely necessary to the proper working and development of said claims; and that under the laws of the United States he is entitled to a patent to three of said lode claims and has already had surveys made for such purpose. He asks that a hearing be had, to the end that his said mining claims may be segregated and excepted from the townsite entry and from any patent that may be issued thereon.

The protest was forwarded to your office and there acted upon March 25, 1898. By decision of that date it is set forth, in substance, that in addition to the allegations of the protest relative to the existence of the mining claims upon land embraced by the townsite entry, the records of your office show that a very large number of mining claims have been applied for and entered covering a considerable portion of said land; that there are not less than twenty-five approved surveys of mining claims situated, in whole or in part, upon said lands some of which have been patented and some have not; that four classes of mining claims are involved in this case, namely: (1) claims for which patents had issued at the date of the townsite entry, (2) claims applied for but not patented at that date (some entered and some not), (3) claims which had been surveyed but not applied for, and (4) claims which are held under possessory title based upon alleged mining locations, etc.

Upon consideration of the matters thus set forth, your office held, in substance and effect:

1. That the townsite entry, in so far as it embraces patented lands, was improperly allowed, and that all such patented lands should be excluded therefrom;

2. That all unpatented mining claims on lands covered by the townsite entry, and for which applications were on file at the date of said entry, should also be excluded therefrom, unless it be shown that such claims had been abandoned or forfeited; and

3. That all other mining claims, surveyed or unsurveyed, existing within said townsite entry at the date thereof, were sufficiently protected by the provisions of section 16 of said act of March 3, 1891,