Again, in the case of Northern Pacific R. R. Co. v. White (19 L. D., 452), it was held (syllabus):

Possession and occupancy of a tract at date of definite location with intention to subsequently enter the land under the timber culture law, do not serve to except it from the operation of the grant.

So far as the record made at the hearing is concerned, it is not shown whether Romaine possessed the qualifications necessary to complete entry of the land here in question, under the settlement laws. It is shown, however, that he had no house upon the tract here involved.

From the record made in another case between the same parties, involving the N. of the NE. and the N. of the NW. 4, of said section 31, being the land immediately north of that here in question, it appears that upon the same date that Romaine tendered a timber culture application for the land here involved, he also tendered a homestead application for the tract immediately north and herein before described. Upon this last mentioned application hearing was ordered, at which it was shown that Romaine settled upon that tract in 1878 and has since continued to reside thereon. His settlement upon that tract was held by departmental decision of May 14, 1896 (not reported) to be sufficient to reserve the tract covered by his homestead application from selection by the Northern Pacific railroad company.

It would appear, therefore, that his claim to the tract now under consideration, rests upon the fact that he had fenced the same in 1878 and has since improved the breaking done thereon, with an intention to make timber culture entry of the same. By these acts no such right was acquired prior to the tender of his timber culture application as would bar selection of the land by the company. As before stated, the company made selection of the land in 1884, more than four years before Romaine tendered his timber culture application, and as the regularity of the selection is not questioned by the record before me, I must sustain your office decision in rejecting Romaine's application for conflict with the selection by the company.

MINING CLAIM-PLACER LOCATION-DISCOVERY.

LOUISE MINING COMPANY.

Under the mining law a discovery of mineral on each twenty acres is required in the case of a placer entry by an association.

Secretary Smith to the Commissioner of the General Land Office, June (P. J. C.)

9, 1896.

It appears by the record that the Louise Mining Company made mineral entry No. 209, survey No. 2522, of its "placer mine," September 26, 1887, embracing 596.76 acres of land, in Marysville, California, land district.

May 26, 1890, your office directed the attention of the local office to the fact that the placer claim embraced four different locations and the five hundred dollars worth of improvements required by the statute were shown to be off the ground claimed and the applicant was required to show that the improvements were for the common benefit of all the claims.

By letter of December 23, 1891, your office acknowledged receipt of "additional evidence" showing shafts sunk on lots 41, 42, and 44, "but there is no evidence that discovery of valuable mineral has been made on lot 43." This was required.

Under date of February 24, 1893, the local office forwarded a corroborated affidavit showing the character and value of improvements upon the land in controversy, and on adjoining mining claims, for the alleged purposes of developing those entered.

By letter of April 3, 1894, your office notified the register and receiver that the additional evidence called for December 23, 1891, had not reached your office, and requiring it to be furnished; also that "said claimant must furnish evidence showing a discovery of mineral on each twenty acres in each location embraced in said entry."

In response to this the applicant filed the affidavit of the superintendent of the company, by which it is shown that he has

caused four bore holes to be made varying from two hundred and fifty feet to four hundred and ten feet in depth, one on each location of said placer mine; and that the same developed gold bearing gravel under the lava cap; that two shafts were also sunk of one hundred and forty feet and one hundred and sixty feet respectively and also a development tunnel was run about three hundred feet in length, all of which gave positive proof of the existence of an extensive gold bearing gravel deposit underlying the surface of the said placer mine;

that the work on adjoining claims "tends to develop and establish the richness and extent of the gravel deposit" in the land.

By letter of July 5, 1895, your office again considered the matter and held that "while said affidavit tends in a general way to establish the mineral character of the land entered" yet it was insufficient to show a discovery of mineral on each twenty acre tract. The entry was therefore held for cancellation except as to the twenty acre tracts on which discovery had been made. Also requiring segregation survey of such tracts and affidavit of five hundred dollars worth of improvement.

The appeal of the applicant brings the case before the Department, and the errors assigned are (1) in holding that it was necessary to show a discovery on each twenty acre tract; (2) in holding the entry for cancellation; and (3) in requiring any further showing of improvements.

The allowance of this entry was grossly erroneous in the first instance. There were four different locations, all located on the same day, to wit, June 27, 1881, and the application for patent was made April 12, 1887. The return of the deputy mineral surveyor as to improvements is "a

bedrock tunnel near the north boundary run into the claim from the "Kenzie Ravine," a distance of 125 ft.; a cabin 12'x18', and a shaft 146 feet deep" was sunk on the adjoining claim. This shaft is shown to be 55.91 chains from corner No. 1 of lot 41 of the placer entry, and the bedrock tunnel is also off the land sought and is run in the direction of the same lot. This lot is on the extreme southwesterly end of the tract. There is nothing in the record as presented with the application for patent to show any improvement on either of the other tracts, or a discovery of mineral on any of them. There was no showing made of the annual expenditures required by statute on either claim, except for the year 1886, and that recites the identical work reported by the surveyor as quoted above, but in addition this affidavit says that but one-half the expense of both the shaft and tunnel was borne by the applicants.

It was not shown by the report of the deputy surveyor or otherwise, that there had been a discovery of mineral, either by exploration on the ground or by the bedrock tunnel which was then being run in the direction of the land. Neither was it claimed that the shaft, more than 3600 feet from the land, tended in any way to disclose mineral in the so-called placer mine in controversy. There was nothing presented in the local office that showed affirmatively that the land was mineral in character.

It is contended that the applicants complied with all "the then known regulations," in sinking the "four bore holes," one on each location. It will be borne in mind that these "bore holes" were made several years after the application for patent, and, incidentally it may be remarked, that the disclosures made by these holes is the only intimation of mineral on the land to this date. The Department is not advised of any "regulations" on the subject of discovery of mineral. This is a statutory requirement that cannot be enlarged or abridged by regulations.

In Ferrell . Hoge (18 L. D., 81), it was decided that a discovery must be made on each twenty acre tract included in a placer location of one hundred and sixty acres. This decision was affirmed on review (19 L. D., 568), and has been approved subsequently in Southern Pacific v. Griffin et al. (20 L. D., 485), and in Rhodes et al. v. Treas (21 L. D., 502).

I am not aware that any different rule ever prevailed. Counsel does not cite any authority in support of his proposition and research fails to disclose any such. This seems to me to be the plain and unmistakable intent of the statute. Congress intended by the mining laws to allow only the discoverers of mineral the right of possession of the mineral lands and the privilege of securing title thereto, and it makes no difference, in my judgment, whether twenty acres be located by one person, forty acres by two persons, and so on up to one hundred and sixty acres by eight persons, there must be a discovery of mineral in

every instance on each twenty acres, the acreage which each locator would be entitled to. The object in allowing an association to take more than the individual was not to avoid discovery, but solely for the purpose of permitting them to thus make a consolidated entry and by one system of development work all the land upon which mineral had been previously discovered.

Your office judgment is therefore affirmed.

SCHOOL LAND-INDEMNITY-SELECTION.

STATE OF CALIFORNIA.

The sale, by a State, of lands in fact excepted from its grant of school lands does not defeat its right to subsequently select indemnity therefor.

The decision in the case of McNamara et al. v. State of California, 17 L. D., 296, overruled.

Secretary Smith to the Commissioner of the General Land Office, June (W. A. L.) 9, 1896. (J. A.)

I have considered the appeal of the State of California from the decision of your office of May 21, 1895, rejecting its indemnity school land application No. 1698, filed December 6, 1889, for all of Sec. 35, T. 14 N., R. 1 E., H. M., Humboldt, California, land district.

The first survey of township 13 N., range 1 E., H. M., was approved February 5, 1883. The State of California sold the land embraced in section 16 of the township under said survey, it appearing from the township plat of the survey that no part of the section was excepted from the grant of school land to the State.

July 30, 1889, a resurvey of the township was approved. The location of section 16 was not changed by the resurvey, but according to the plat of said resurvey the E. 2, the N. of the NW. 4, the SE. 1 of the NW. 4, and the NE. of the SW. 4, are within the limits of the Klamath River Indian reservation. These tracts, together with the NW. of Sec. 16, T. 13 N., R. 2 E., form the bases for said indemnity application No. 1698, for Sec. 35, T. 14 N., R. 1 E., H. M.

May 21, 1895, your office rejected the application, holding that, as the State had sold and patented the whole of Sec. 16, T. 13 N., R. 1 E., it has no right to make indemnity selection for that part of the section which is shown by the resurvey to be within the Klamath River Indian reservation.

That decision is based on the holding in the case of McNamara et al. v. State of California (17 L. D., 296). The facts in that case are as follows: The applications of McNamara et al. to make timber entries for certain tracts had been rejected by your office for the reason that the tracts had been previously selected by the State of California as indemnity in lieu of certain school sections shown by the plats of sur

vey to be within the Klamath River Indian reservation. McNamara et al. appealed, alleging that parts of the school sections named as bases for the indemnity selections are outside of the reservation, and that therefore the bases are defective as a whole, and that the entire selection must fail. As it could not be determined from the record or from the township plats of survey whether any of the tracts designated as bases for the selection were outside of the reservation, it was directed by departmental letter of August 8, 1892, that a map of the Klamath River Indian reservation be prepared, showing accurately the limits of the reservation. The map prepared in accordance with said direction shows that certain tracts which were included in the bases for selections Nos. 1695 and 1696, then under consideration, and is the basis for selection No. 1698, now under consideration, are outside of the reservation. The plats of the townships within which said tracts are located, and by which the State of California was guided in making said selections, erroneously indicated the tracts to be within the reservation. September 21, 1893, the Department rendered decision as follows:

While it is shown that the bases for the selections 1695, 1696, and 1698 were defective, yet at the date of the selections the tracts now omitted were within the approximate limits of said reservation, as designated by the land office. All of the lands falling within said limits were treated by the Department as in reservation, and the State was evidently misled in designating said defective bases, because of the failure of the government to properly mark said limits.

At the date of the applications of appellants, the lands in controversy were embraced in the selections made by the State upon a basis prima facie valid, and, while a basis defective in part is defective as to the whole, yet, in view of the fact that the bases were at the time of the selection considered as in reservation, and as, under the act of February 28, 1891 (26 Stat., 796), the State may be held to have waived its right to the school sections by making selections in lieu thereof, I see no reason why, in view of the facts above stated, and of the provisions of the act of February 28, 1891, these selections should not be approved in lieu of the bases designated therefor, it not being in violation of any right acquired by appellants under their rejected applications, provided the State has not sold said bases.

It being alleged by appellants that some of the bases have been sold by the State, you will therefore notify it that upon furnishing satisfactory evidence that it has not conveyed or attempted to convey the bases designated for said selections, and filing a relinquishment of its right and title to such parts as are without the limits of the reservation, the selections will be approved; otherwise, the list of selections should be rejected and canceled.

Under the authority of that decision your office was justified in holding, in the matter under consideration in the case at bar, that the State of California, having sold all of section sixteen, no part of which was, according to the first plat of survey, reserved, has no right to make indemnity selection for that part of the section which is shown by the new plat of survey to be within the limits of the Klamath River Indian reservation.

After a fuller consideration of the question I have come to the conclusion that the rule announced in said decision, that the right of State