was appointed receiver for said Edgemont and Union Hill Smelting Company, and as such receiver was

authorized, empowered, and instructed to take all steps and proceedings necessary or proper towards the obtaining of patents from the United States for all of the uupatented lode and placer claims owned or claimed by said company in Lawrence county, South Dakota.

August 27, 1898, application for patent to the South Carolina, Lita, B. & M., Calumet, Calumet No. 2, and Calumet No. 3 lode mining claims, survey No. 1178, Rapid City land district (Lawrence county), South Dakota, was filed by Savery Bradley, as receiver for the Edgemont and Union Hill Smelting Company. Said company became the owner of all said claims, except the Lita, in 1897, but it does not appear ever to have owned the Lita claim. In July, 1898, said Bradley, receiver, and said Edgemont and Union Hill Smelting Company sold and conveyed all of said claims, except the Lita, to John A. Graham and George A. Fletcher, trustees, and such sale was ratified and confirmed by an order of said United States circuit court, made in said suit, July 20, 1898. The Lita claim was conveyed to said Graham and Fletcher, trustees, by the Milton Trust Company, by deed dated August 10, 1898.

At the date of the filing of the application for patent, therefore, all the claims were held by said trustees. Notwithstanding this, for some unexplained reason, the application for patent was filed by and in the name of said Bradley as receiver for said Edgemont and Union Hill Smelting Company. December 12, 1898, mineral entry No. 943, embracing all the claims included in the application for patent was made in the names of said John A. Graham and George A. Fletcher, trustees. In the meantime, however, September 22, 1898, Graham, one of said trustees, had died, and November 21, 1898, Fletcher, the surviving trustee, had executed and delivered to the Galena Mining and Smelting Company a deed conveying all of said claims except the Lita. On or about December 15, 1898, after the entry had been allowed, Fletcher, as surviving trustee, also executed and delivered to the Milton Trust Company, a deed conveying the Lita claim. In an affidavit filed in the record, Flet her states that both said deeds were executed and deliv ered by him according to and in full compliance with the terms and conditions of his said trust.

It thus appears that at the date of the filing of the application for patent, the Edgemont and Union Hill Smelting Company and Bradley, its receiver, had, by the sanction of the court by whose order said receiver was appointed, sold and conveyed the five claims originally owned and held by said company, and that at the date of the entry embracing the six claims in question, one of the trustees named as an entryman was dead, and all the claims, except the Lita, were held and owned by the Galena Mining and Smelting Company--the Lita only being held by Fletcher as surviving trustee.

Your office, by decision of May 25, 1899, held that the entry in ques

tion could not be allowed to stand and the local officers were directed to advise the parties in interest that they would be allowed sixty days from notice within which to show cause why the entry should not be canceled as to the Lita claim, and that in default of such showing the entry would be so canceled.

The record is now before the Department on an appeal filed by certain parties styling themselves "Attorneys for the entrymen and their successors in interest."

It is apparent, from the facts stated, that the application for patent and the proceedings thereon have been irregular. Before Bradley, as receiver for the Edgemont and Union Hill Smelting Company, filed the application for patent, he had, with the authority and sanction of the court by whom he was appointed, and in conjunction with said company, sold and conveyed to other parties five of the claims embraced in the application, and to the remaining claim-the Lita-he does not appear at any time to have had any right or title whatever. His duties as receiver, with respect to the South Carolina, B. & M., Calumet, Calumet No. 2, and Calumet No. 3 claims, were apparently discharged when, under the direction and with the approval of the court, he sold and conveyed said claims to Graham and Fletcher, trustees. Surely he could not, after such sale and conveyance, lawfully exercise any further control over said claims. At the date of the application for patent, so far as the present record shows, he stood in the position of a stranger to said claims. The statute does not recognize the right of a person having no interest in or control of a mining claim, to apply for a patent to such claim. This was the position occupied by said receiver at the time he filed the application in question. Nor was he in any better position with respect to the Lita claim, never having had any right to or control of that claim.

In view of the foregoing, it is clear that the patent proceedings have been grossly irregular from the beginning, and that the application filed by said receiver should not have been accepted. All the proceedings had thereon must therefore be vacated, and the entry in question canceled. The parties interested will be allowed to institute new proceedings for patent, however, if they so desire, and the decision appealed from is accordingly modified.

MINING CLAIM-EXPENDITURE-RULE 53.

.B. P. O. E. GOLD MINING CO.

The proviso to rule 53 of the mining regulations with respect to the requisite showing of expenditure under an application for mineral patent that embraces several claims held in common, and does not pass to entry prior to July 1, 1898, is not applicable, if the record fails to show that such application was prevented from being passed to entry, prior to said date, by protest or adverse claim.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V.D.) March 12, 1900.

(A. B. P.)

July 8, 189, The B. P. O. E. Gold Mining Company filed application for patent embracing the Britta, Omaha No. 1, and Omaha No. 2 lode mining claims and the Dude mill site claim, survey No. 11803 A. and B., Pueblo, Colorado. Publication and posting of notice of the application appear to have been regularly made. The first publication was on July 17, 1897.

June 29, 1898, a protest against the allowance of entry on the appli cation for patent as to the mill site claim was filed by one Benjamin F. Read.

November 21, 1898, the applicant company filed a waiver of its claim as to the mill site, accompanied by the statement that, "owing to pendency of protest, entry was not made prior to July 1, 1898," and was allowed to make mineral entry No. 1806, embracing the three lode claims.

February 16, 1899, your office considered the case and held the entry for cancellation on the ground that the expenditure of only $850 in labor or improvements on the three claims had been shown, and no sufficient reason appeared why the application for patent was not carried to entry prior to July 1, 1898.

The applicant company has appealed to the Department.

The publication and posting of notice of the application for patent were completed in September, 1897, and no adverse claim was filed. Nor was there any protest against the application prior to the one filed by Read June 29, 1898. The appellant company contends that because of the filing of that protest this case is brought within the proviso to Rule 53 of the mining regulations (28 L. D., 579, 603), which rule and proviso are as follows:

The claimant at the time of filing the application for patent, or at any time within the sixty days of publication, is required to file with the register, a certificate of the surveyor-general that not less than five hundred dollars' worth of labor has been expended or improvements made, by the applicant or his grantors, upon each location embraced in the application, or if the application embraces several locations held in common, that an amount equal to five hundred dollars for each location, has been so expended upon, and for the benefit of, the entire group; that the plat filed by the claimant is correct; that the field notes of the survey, as filed, furnish such an accurate description of the claim as will if incorporated in a patent serve to fully

identify the premises and that such reference is made therein to natural objects or permanent monuments as will perpetuate and fix the locus thereof: Provided. That as to all applications for patent made and passed to entry before July 1, 1898, or which are by protests or adverse claims prevented from being passed to entry before that time, where the application embraces several locations held in common, proof of an expenditure of five hundred dollars upon the group will be sufficient and an expenditure of that amount, need not be shown to have been made upon, or for the benefit of, each location embraced in the application.

Two classes of cases, embracing claims held in common, are covered by said proviso: (1) Applications for patent made and passed to entry prior to July 1, 1898; and (2) applications for patent, though made before July 1, 1898, were by protests or adverse claims prevented from being passed to entry before that date.

It is clear that the present case does not come within either of said classes. Not in the first, for the reason that although the application for patent was filed prior to July 1, 1898, it was not carried to entry before that time. Neither does it fall within the second class for the reason that there is nothing in the record to show that the application for patent was prevented from being passed to entry prior to July 1, 1898, by protest or adverse claim. As before stated there was no adverse claim, nor was there a protest until that of June 29, 1898. The application for patent was without adverse claim or protest against it for the entire period from the date of the completion of the publication and posting of notice in September, 1897, until June 29, 1898. Manifestly, therefore, it cannot be said that the application was prevented from being carried to entry, at any time during that period, by protest or adverse claim, and the contention of the appellant in this respect is wholly without merit. The protest of June 29, 1898, was only operative on and after the date of its filing. While its effect, doubtless, was to prevent entry after its filing, it could have no such effect prior to that time.

The decision of your office, holding the entry in question for cancellation is clearly right, and the same is affirmed.

CONTESTANT-PREFERENCE RIGHT-TIMBER LAND.

ROWLEY . HAYES.

A contestant who, during the progress of the trial, waives his preferred right of entry, is no longer a party in interest; and the case is thereafter a matter between the entryman and the government.

The fact that land is more valuable for its timber than for agricultural purposes, is a circumstance to be considered as bearing upon the good faith of an agricul tural claimant, but does not in itself require the cancellation of his entry. Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) March 17, 1900.

(J. R. W.)

Robert C. Rowley has appealed from your office decision of April 8, 1899, dismissing his contest against the homestead entry of Daniel F.

Hayes, made July 23, 1894, for the SW4 of the NW and NW of the SW of Sec. 1 and SE of the NE and NE of the SE of Sec. 2, T. 36 N., R. 3 E., Seattle land district, Washington.

May 18, 18. 8, Rowley filed his contest affidavit alleging abandonment and failure to establish and maintain residence on the land; that said entry was not made for the sole purpose of actual settlement and cultivation; that said entryman has cut and removed timber for speculation and not for purpose of cultivation or improvement.

After notice both parties appeared in person and with counsel at the hearing, August 12, 1898, before the local officers, who found:

The land involved is a heavily timbered tract, unproductive and unfit for cultivation; that the improvements placed thereon are meager, while nominally residing on the land, entryman has spent his time working elsewhere earning money no portion of which, not even money derived from sale of shingle-bolts, has been put into improving his homestead. By no act has he shown good faith.

The local office recommended cancellation of the entry. On Hayes' appeal your office decision reversed their finding, and contestant appealed to the Department.

Contestant testified and produced several witnesses who testify claimant was on the land when they were there, and none of the evidence tends to show an abandonment, and they testify that the land is chiefly valuable for its timber and is unfit for agricultural purposes; that there is little soil, the land is broken, gravelly and rocky, not suitable for agricultural use, and valueless when the timber is taken off; that some of the timber has been sold. There is one acre of clearing and a house fourteen by sixteen. Claimant has made a road on the land out to the lake, worth $125, and the clearing was worth $250 to $500 per acre.

Contestant on closing his testimony waived his preference right of entry and filed a timber land application asking it be suspended and made part of the record. Thereupon the local office ruled defendant should pay costs of his evidence, direct and cross-examination, under Rule 55. Defendant then testified. His cross-examination being deemed prolix by his counsel, by advice of the latter he refused further to answer and the case was closed.

Defendant testified he built his house and established his residence on the land January 1895, has since resided there, and values his improvements at $200. He is unmarried, and without other means than his labor; has been absent, at work earning means for his living, but never to exceed two months at any time; that he cleared one acre and slashed another, and made a road from his house to the lake. He had earned by work for neighbors at various times, he estimates, $500, and sold shingle-bolts, seventy cords, from timber cut to make his clearing, amounting to $140. He testifies one hundred and thirty acres of the land is loamy soil fit for cultivation; that the land had been in litigation and he was notified in April, 1896, by former timber claimants, not to cut or permit cutting timber, or in any manner to commit waste,