exclusion of the placer claims rendering the lode claims non contiguous), and that upon such election the entry would be canceled as to the other claims.

August 29, 1898, claimant requested that the entry be referred to the board of equitable adjudication for approval, but your office, September 29, 1898, held that the entry having been allowed in violation of the mining regulations, the request could not be granted. In that decision it was further found upon a re-examination of the record that the amount of labor and improvements upon each location were as follows: Beaver Springs placer No. 1, $100; Beaver Springs placer No. 2, $700; Mayflower lode claim, $460; Highland Chief lode claim, $560; and it was thereupon held that, should claimant

make a selection of any of the locations embraced in said entry, evidence must be furnished that the statutory expenditure of $500 in labor or improvements has been made thereon prior to or during the local period of publication.

Claimant has appealed to the Department, its contention being, in substance, that the entry as made should stand and be passed to patent.

Your office holding that there is no authority under the mining laws for embracing in the same application for patent a lode claim and a placer claim, covering adjoining but different tracts of ground, is made to rest upon section 2333 of the Revised Statutes. That section is as follows:

Where the same person, association, or corporation is in possession of a placerclaim, and also a vein or lode included within the boundaries thereof, application shall be made for a patent for the placer-claim, with the statement that it includes such vein or lode, and in such a case a patent shall issue for the placer-claim, subject to the provisions of this chapter, including such vein or lode.

This section does not support the conclusion reached by your office. It directs in what manner an application shall be made for a placer claim which includes within its boundaries a known vein or lode in the possession of the applicant. There is no rule of construction under which it can be well said that a statute, which directs how an application shall be made for a placer claim which includes a known vein or lode, prohibits the inclusion in an application for patent of a placer claim and a lode claim covering adjoining but different tracts of ground. No good reason has been given by your office, and none is suggested by the record in this case or by a careful investigation of the subject, why a single application may not embrace and a single patent be issued for placer and lode claims situated as these are, if the applicant has complied with the law. Section 2325 expressly authorizes the inclusion in an application for patent of "any land claimed and located for valuable deposits" otherwise spoken of as "a piece of land," and as "the claim or claims in common." The land in question lies in one body or piece, has been claimed and located for valuable deposits, and the sev eral claims have a common ownership.

In the matter of the expenditure upon these claims, the attention of your office is directed to circular of March 14, 1898 (26 L. D., 378), amending paragraph 53 of the mining regulations approved December 15, 1897, to read 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.

This entry was made October 12, 1895, and, under the proviso in the circular above quoted, the application for patent having been made and passed to entry before July 1, 1898, and the application embracing several locations held in common, the proof of the expenditure herein is sufficient. R. S. Hale (28 L. D., 524).

The decision appealed from is reversed, and the papers are herewith returned, with directions to pass the entry to patent unless other objection appears.

JUNKIN V. NILLSSON.

Motion for review of departmental decision of April 28, 1899, 28 L. D., 333, denied by Secretary Hitchcock July 3, 1899.

RAILROAD LANDS-CONFIRMATION-ACT OF MARCH 2, 1896.

J. A. CONAWAY ET AL.

Under the act of March 2, 1896, it is the duty of the Secretary of the Interior to investigate the claims of all persons who assert that they are bona fide purchasers of lands erroneously patented or certified under a railroad grant, and who present their claims under said statute prior to the institution of suit to cancel the erroneous patent or certification.

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

July 3, 1899.

(F. W. C.) With your office letter of November 30, 1898, were transmitted petitions of J. A. Conaway et al., asserting a confirmation of title in them, under the provisions of the act of March 2, 1896 (29 Stat., 42), to certain

described land purchased by them from the Southern Pacific Railroad Company.

Upon the showing made the title of these purchasers was by this Department, on February 6, 1899, held to have been confirmed by said act, and your office was directed to make demand upon the company for the value of said lands.

The Department is now in receipt of your office letter of the 22nd ultimo, in which it is stated that:

In accordance with said departmental instructions this office, by letter dated February 28, 1899, made demand upon Mr. C. P. Huntington, President of said Southern Pacific Railroad Company for the value of the laud. More than ninety days have since elapsed and no response has been received thereto.

In said letter it is further stated that:

It has recently been learned that said tracts are included in the bill of complaint filed April 13, 1899, in cause No. 878, the United States v. Southern Pacific R. R. Co. et al., now pending in the United States circuit court, ninth circuit, southern district of California.

In addition to the cases above mentioned there are a number of cases where the Department has upon the recommendation of this office, held that the title of petitioners was confirmed under the act of March 2, 1896, supra, to tracts which are involved in said cause 878, but this office has not as yet noted the confirmation on the tract-books of this office or made demand upon the company for the value of the land and there is also pending in this office a number of petitions for confirmation of title for tracts so involved, which have not yet been reported to the Department for confirmation.

In closing, your office letter states that:

In view of the pending suit, it would seem that no further demand should be made upon the company for the value of any of the tracts therein involved and I recommend that this office be directed to suspend action on all petitions for lands involved in said cause 878 until the case is finally determined by the courts.

The act of March 2, 1896, supra, is as follows:

That suits by the United States to vacate and annul any patent to lands heretofore erroneously issued under a railroad or wagon road grant shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents, and the limitation of section eight of chapter five hundred and sixty-one of the acts of the second session of the Fifty-first Congress and amendments thereto is extended accordingly as to the patents herein referred to. But no patent to any lands held by a bona fide purchaser shall be vacated or annulled, but the right and title of such purchaser is hereby confirmed: Provided, That no suit shall be brought or maintained, nor shall recovery be had for lands or the value thereof that were certified or patented in lieu of other lands covered by a grant which were lost or relinquished by the grantee in consequence of the failure of the government or its officers to withdraw the same from sale or entry.

SEC. 2. That if any person claiming to be a bona fide purchaser of any lands erroneously patented or certified shall present his claim to the Secretary of the Interior prior to the institution of a suit to cancel a patent or certification, and if it shall appear that he is a bona fide purchaser, the Secretary of the Interior shall request that snit be brought in such case against the patentee, or the corporation, company, person or association of persons, for whose benefit the certification was made, for the value of said land, which in no case shall be more than the minimum government price thereof, and the title of such claimant shall stand confirmed. An

adverse decision by the Secretary of the Interior on the bona fides of such claimant shall not be conclusive of his rights, and if such claimant, or one claiming to be a bona fide purchaser, but who has not submitted his claim to the Secretary of the Interior, is made a party to such suit, and if found by the court to be a bona fide purchaser, the court shall decree a confirmation of the title, and shall render a decree in behalf of the United States against the patentee, corporation, company, person or association of persons for whose benefit the certification was made for the value of the land as herein before provided. Any bona fide purchaser of lands patented or certified to a railroad company, and who is not made a party to such suit, and who has not submitted his claim to the Secretary of the Interior, may establish his right as such bona fide purchaser in any United States court having jurisdiction of the subject-matter, or at his option, as prescribed in sections three and four of chapter three hundred and seventy-six of the acts of the second session of the Fortyninth Congress.

SEC. 3. That if at any time prior to the institution of suit by the Attorney-General to cancel any patent or certification of lands erroneously patented or certified a claim or statement is presented to the Secretary of the Interior by or on behalf of any person or persons, corporation or corporations, claiming that such person or persons, corporation or corporations, is a bona fide purchaser or are bona fide purchasers of any patented or certified land by deed or contract, or otherwise, from or through the original patentee or corporation to which patent or certification was issued, no suit or action shall be brought to cancel or annul the patent or certification for said land until such claim is investigated in said Department of the Interior; and if it shall appear that said person or corporation is a bona fide purchaser as aforesaid, or that such persons or corporations are such bona fide purchasers, then no suit shall be instituted and the title of such claimant or claimants shall stand confirmed; but the Secretary of the Interior shall request that suit be brought in such case against the patentee, or the corporation, company, person, or association of persons for whose benefit the patent was issued or certification was made for the value of the land as hereinbefore specified.

Under this act it is made the duty of the Secretary of the Interior to investigate the claims of all persons who assert that they are bona fide purchasers of lauds erroneously patented or certified and who present their claims prior to the institution of suit to cancel the erroneous patent or certification. The petitions of Conaway et al. were presented before the institution of said suit on April 13, 1899, and therefore it was the duty of the land department to proceed with the investigations of these claims, and if the claim of confirmation was sustained to demand of the railroad company the value of the lands, to the end that a full statement of the matter could be transmitted to the Department of Justice with a request for appropriate action thereon, so that a decree for the value of the land might be sought in the pending suit or in some future suit.

Other claims of confirmation of title under said act heretofore or hereafter presented to this Department prior to the institution of suit to cancel the patent or certificate will be disposed of in like manner. Claims presented after the institution of suit will not be acted upon pending its determination, but the claimants should be advised that under the statute they can probably present their claims in the suit wherein cancellation is sought and can there obtain a judicial determination of their right and title.

MINING CLAIM-PLACER ENTRY-DISCOVERY.

FERRELL ET AL. v. HOGE ET AL. (ON REVIEW).

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 does not relieve the Land Department from the duty of ascertaining whether the land sought to be patented is mineral in character, and therefore subject to disposition under the mining laws.

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 accepted as establishing the mineral character of the entire claim sufficiently to justify the patenting thereof, but 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.

The entire area that may be taken as a placer claim can not be acquired as appurtenant to placer deposits which are shown to exist only in a portion thereof. Where a part of the area embraced within a placer entry, in this instance twenty acres, is shown to contain no valuable mineral deposit subject to placer location, such part of the claim will be excluded from the entry. Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) July 7, 1899. (E. F. B.) (G. B. G.)

This controversy, involving the Horse Shoe Quarry placer mining claim, survey No. 2602, Helena, Montana, land district, of which Hoge et al. made mineral entry January 6, 1890, has been pending before the land department since February 12, 1891, and its history is given in departmental decisions of February 12, 1894 (18 L. D., 81), December 22, 1894 (19 L. D., 568), and July 1, 1898 (27 L. D., 129).

The claim, which is upon unsurveyed land, embraces 159.97 acres and was located by an association of eight persons, upon a single discovery within its limits of a deposit of lime and iron rock valuable for fluxing purposes. No adverse claim was filed during the period of publication, but a protest was subsequently filed against the mineral entry by persons claiming that the land was not subject to the operation of the mining laws, which resulted in the decision of July 1, 1898, wherein it was held that the portion of the claim which the parties have for convenience denominated the Heel Calk subdivision, being the extreme northeasterly twenty acres, is not mineral in character and should therefore be excepted from the entry.

The case is now here upon the mineral claimants' motion for review of that decision, the grounds of which motion may be summarized as follows:

1. That as no adverse claim was filed during the period of publication, the right to the tract in controversy vested in the entrymen, and thereafter third parties could not object to the issuance of patent except it be shown that the applicants had failed to comply with the mining laws.

2. That one discovery of mineral within its limits was sufficient to establish the mineral character of the entire claim to such an extent that no one could be heard to allege that any part thereof is non-mineral.