and there was therefore no necessity for their segregation, and exclusion in terms from the townsite entry and patent.

The protest was thereupon dismissed and Hulings has appealed to the Department.

Strictly speaking, the protest of Hulings involves only alleged existing mining claims, surveyed or unsurveyed, unpatented and not yet applied for at the date of the townsite entry, the ownership and pos session whereof, it is averred, were recognized by local authority and by the laws of the United States at and prior to the date of such entry. The only questions presented by the protest, therefore, relate to the rights of owners, at the date of the townsite entry, of claims of the third and fourth classes, considered in your said office decision, and to the manner of protecting or enforcing those rights under said section 16 of the act of March 3, 1891. That section provides:

That town-site entries may be made by incorporated towns and cities on the min. eral lands of the United States, but no title shall be acquired by such towns or cities to any vein of gold, silver, cinnabar, copper, or lead, or to any valid mining claim or possession held under existing law. When mineral veins are possessed within the limits of an incorporated town or city, and, such possession is recognized by local authority or by the laws of the United States, the title to town lots shall be subject to such recognized possession and the necessary use thereof and when entry has been made or patent issued for such town sites to such incorporated town or city, the possessor of such mineral vein may enter and receive patent for such mineral vein, and the surface ground appertaining thereto: Provided, That no entry shall be made by such mineral-vein claimant for surface ground where the owner or occupier of the surface ground shall have had possession of the same before the inception of the title of the mineral-vein applicant.

Under this statute it is plain that whatever action is taken upon the present protest, the rights of Hulings and others under their mining locations, if such locations in fact existed and possession thereof was recognized as alleged, can not be disturbed for the reason that the act expressly provides for the protection of possessory rights under existing valid mining claims, and also, that entry for the mineral veins so possessed may be made and patent issued therefor, after patent has issued for the townsite.

The issuance of patent on the townsite entry, under the statute referred to, will not determine the rights of the protestant, in the premises, nor will such patent convey title "to any vein of gold, silver, cinnabar, copper, or lead, or to any valid mining claim or possession held under existing law" within the townsite limits, by the protestant or any other person, at the date of the townsite entry. The statute excludes from the operation of the townsite patent any such existing mineral vein, mining claim, or possession.

The townsite patent when issued will not, therefore, deprive the protestant or any other person, of any rights existing at the date of the townsite entry under any valid mining claim, or possession so recog nized as aforesaid, within the patented area. All such rights are pro

tected by the statute in terms. Nor will the townsite patent deprive the Department of jurisdiction to issue patent for any such mining claim upon application therefor supported by proper proofs, for the reason that the statute also provides that patent may be issued to the possessor of any such mining claim after the townsite patent has been issued. All rights of mineral claimants existing at the date of the townsite entry being thus reserved and fully protected by the statute, there would seem to be no necessity for the segregation, prior to the issuance of the townsite patent, for the purpose of excluding the same from the patent, of any mining claims, surveyed or unsurveyed, for which applications had not been filed at the date of the townsite entry. All such claims, if subsisting and valid at the date aforesaid, may be carried to entry and patent, upon proper proofs showing that the mining laws have been complied with and that the claims are within the protection of the statute, notwithstanding the townsite entry and patent, provided only that such mineral entry and patent shall not embrace surface ground "where the owner or occupier of the surface ground shall have had possession of the same before the inception of title of the mineral-vein claimant."

This disposes of all the matters, technically speaking, presented by Hulings' protest and appeal.

It is deemed proper to state, however, in view of your office decision relative to the stated second class of mining claims shown to have existed within the limits of the townsite at the date of the entry thereof, that what has been said on the subject of valid mining claims existing within said limits, but not applied for, at the date of the townsite entry, applies with equal force to all unpatented mining claims within such limits, though applications therefor may have been filed and entries made prior to said townsite entry. Under the provisions of the statute aforesaid the townsite entry and patent can not interfere with the rights of such mineral applicants, or entrymen as the case may be, any more than such entry and patent could interfere with the rights of mineral claimants prior to application or entry, and there would seem to be no good reason why such applications or entries may not be car ried to patent, upon proper proofs in support thereof, the same as claims of the third and fourth classes mentioned in your office decision notwithstanding the townsite entry or patent.

The townsite entry, however, in so far as it embraces lands previously patented should be amended so as to exclude therefrom all such patented lands, as held in your said office decision. In this respect and also in so far as said decision dismisses the protest filed by Hulings, the same is hereby affirmed. In other respects said decision is modified to conform to the views herein expressed.

SIMULTANEOUS CONTESTS-RIGHT TO HIGHEST BIDDER.

WEIMER v. Scoffin.

An applicant for the right of contesting an entry, who does not give his proper postoffice address, will not be heard to complain that he was not notified that the right of contest would be awarded to the highest bidder.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) July 12, 1899. (G. C. R.) This case involves a controversy between Henry Weimer and Charles R. Scoffin as to which has the better right to proceed under his contest filed against the unknown heirs of John Harkness, deceased, who, May 16, 1892, made homestead entry for the SW. of the SE. and the S. of the SW. 4, sec. 4, and the NW. 4 of the NW. 4, sec. 9, T. 28 N., R. 5 W., Helena, Montana.

It appears that Weimer and Scoffin sent, through the mail, their respective contest affidavits, each alleging, substantially, the same cause of action-namely, the death of the entryman, and that the unknown heirs had, for a period of more than six months next preceding the date of their affidavits, abandoned the land, &c.

The contest affidavits appear to have been received at the local office at the same time, and were each filled at 10:30 a. m., April 29, 1897. Under the rule announced in Nichols et al. v. Darroch, 14 L. D., 506, the register and receiver, April 30, 1897, notified both applicants, by registered letter, addressed to Dupuyer, Montana, the post-office nearest the land in question, that they would, on Friday, May 21, 1897, at ten o'clock a. m., offer to the highest bidder the right to contest said entry, and that bids would be entertained from the applicants only. On the day so fixed, Scoffin did not appear, and the right of contest was awarded to Weimer on his bid of $1.00. Notice was had by publication, and the hearing set for July 12, 1897, the testimony to be submitted before C. E. Trescott, U. S. Commissioner, on July 8, 1897.

Testimony was taken, showing the death of the entryman, October 26, 1896; that the tract had never been cultivated, and that the only improvement thereon was a small log cabin. It appears that Scoffin did not receive the notice of his right to bid until May 28, 1897. July 2, 1897, he filed an affidavit, stating that the reason he did not receive said notice was because it was not sent to his post-office address; he asked that the local officers reconsider their action and again offer for sale the right to contest the entry.

The register and receiver, July 7, 1897, notified both parties by registered letters that the motion to reconsider would be entertained, and that the right to contest the entry would again be offered to the highest bidder on August 20, 1897. From that action Weimer, August 18, 1897, appealed. Scoffin alone appeared on the day fixed, and bid $10.00.

Your office, November 3, 1897, held that Scoffin's failure to receive notice of the first sale was due to his own negligence, and that the register and receiver erred in setting a second day for bidding. Weimer's contest was remanded for new hearing for insufficient notice, and Scoffin's contest was held subordinate thereto.

You office, February 15, 1898, denied Scoffin's motion for review, and his appeal brings the case to this Department.

It was clearly Scoffin's fault that he did not get the notice sent to him of his right to bid. He does not claim that his contest affidavit was accompanied by a letter of transmittal giving his proper post-office address, and the affidavit itself simply bears upon its face his own name as "of Teton county, State of Montana;" the notice was addressed in his name to Dupuyer, Montana, that being within the county named by him and the nearest post-office to the land. His failure to have the notice sent to his proper address, which appears to have been Pondera, Montana, was due entirely to his own carelessness or neglect. Weimer, on the other hand, gave his proper address, and received and acted on the notice; he bid for and obtained the right to contest the entry, and thereafter, at no inconsiderable expense, prosecuted his contest. The decision appealed from is affirmed.

RAILROAD GRANT-PATENTEE-SUCCESSOR IN INTEREST.

UNION PACIFIC R. R. Co.

Directions given that hereafter patents shall issue to the "Union Pacific Railroad Company," as the successor in interest of the Union Pacific Railway Company, for any lands which the latter company was entitled to under the grants of July 1, 1862, and July 2, 1864, on account of the construction of the main line of the Union Pacific railroad.

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

On June 7, 1899, the attorney for "Union Pacific Railroad Company" filed a petition and exhibits in this Department praying that an order be entered requiring and directing that, on the payment of the proper fees and charges, patents be issued to said company for all the lands heretofore granted to and earned by "The Union Pacific Railroad Company" under the provisions of the acts of Congress of July 1, 1862 (12 Stat., 489), and of July 2, 1864 (13 Stat., 356), of which lands petitioner claims to have become owner by virtue of sales and conveyances made in pursuance of decrees rendered in causes pending, respectively, in the circuit courts of the United States for the districts of Nebraska, Colorado, Wyoming and Utah.

The exhibits filed with the petition consist of certified copies of the records in the respective cases referred to, and also a certified copy of

the articles of incorporation, under the laws of Utah, of said "Union Pacific Railroad Company." From these records it appears that under certain foreclosure proceedings at the instance of a mortgagee of "The Union Pacific Railroad Company," The Kansas Pacific Railway Company and the Denver Pacific Railway and Telegraph Company, the right, title, and interest of the said "The Union Pacific Railway Company" in and to the lands granted by the said acts of Congress to aid in the construction of the Union Pacific Railroad, main line, were duly sold and conveyed to the petitioner company, which under its articles of incorporation is competent to purchase said property.

In view of said sale and transfer and of the further fact that the subsidy debt due the government on account of the main line of the Union Pacific Railroad, has been paid, as shown by departmental letter of February 12, 1898 (Book M. 367, p. 247), no reason appears for denying the application of the petitioner, and it is accordingly granted.

You will hereafter issue patents to said "Union Pacific Railroad Company," the successor in interest of the Union Pacific Railway Company, for any lands which the latter company was entitled to under the congressional grants aforesaid on account of the construction of the main line of the Union Pacific Railroad.

Herewith are sent to you said petition and the papers accompanying the same, to be placed in the files of your office, and you will notify the resident counsel of the petitioner of the conclusion herein reached.

RAILROAD GRANT-MINERAL CLAIMANT—NOTICE OF HEARING.

MCCLOUD CENTRAL PACIFIC R. R. Co.

The publication and posting of a notice of a hearing ordered on the application of a mineral claimant, to determine the character of a tract of land returned as agricultural, and listed as part of an odd numbered section within the primary limits of a railroad grant, is not sufficient notice to the company of said hearing.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) July 13, 1899. (G. B. G.)

The land involved in this case is lot 2 of the SW. of Sec. 15, T. 12 N., R. 8 E., Sacramento, California, and is within the primary limits of the grant made to the Central Pacific Railroad Company by the acts of July 1, 1862 (12 Stat., 489), and July 2, 1864 (13 Stat., 356).

Your office erroneously reports that this tract was returned as mineral land, and an examination of the field notes of survey and the plats thereof on file in the surveying and mineral divisions of your office discloses that it was returned as agricultural land by the surveyor-general of California, July 22, 1871. May 10, 1884, the company filed a list, No. 16, embracing this tract, and also applied to the local officers for a hearing, at which to show that said supposed mineral