FINAL PROOF-PUBLICATION OF NOTICE.

NORTHERN PACIFIC R. R. Co. v. KEHOE.

Notice of intention to submit final proof will be held good as against a railroad company, where, in the publication thereof, the "general land agent" of the company is specially cited, and a protest against the proof is subsequently filed by said agent, and no exception is taken therein as to the service of said notice, nor objection made thereto on appeal.

Secretary Smith to the Commissioner of the General Land Office, January 4, 1896. (F. W. C.)

I have considered the appeal of the Northern Pacific Railroad Company from your office decision of August 6, 1894, holding for cancellation its indemnity selection covering the S. of the NW. and lots 2, 3, 4 and 5, Sec. 15, T. 12 N., R. 7 E., Vancouver land district, Washington, on account of the settlement claim of Patrick Kehoe.

This tract is within the indemnity limits of the grant for said company and was included within its list of selections filed October 27, 1891.

On November 11, 1891, Patrick Kehoe was permitted to make homestead entry of this land, and on February 9, 1892, notice was published of his intention to make final proof on April 6, 1892.

In this notice Paul Schulze, general land agent for said company, was specially cited. On March 8, 1892, said Paul Schulze filed on behalf of the company a protest against the proof proposed to be submitted by Kehoe in which a superior claim on account of the grant was set up. At the date of the offer of proof no appearance seems to have been made by the company.

This proof shows that Kehoe made settlement upon the land in July, 1886; that on the 10th of that month he built a house and has since made valuable improvements, valued at the time of the offer of proof at $800, and that from the date of settlement to the time of his offer of proof he had continued to occupy, claim and improve the land.

The company's protest was dismissed April 11, 1892, and the same day certificate was issued on Kehoe's proof. The company's appeal to your office resulted in the decision of August 6, 1894, which sustained the action of the local officers holding that as the land was within the indemnity limits the company could acquire no right thereto until duly selected, and as Kehoe had settled upon the land prior to the company's selection his settlement claim was sufficient to bar the right of selection in the company, which selection was, as before stated, held for cancellation.

The company has appealed from your office decision and in a brief filed by resident counsel it is stated:

Without entering into a discussion as to the right of Kehoe to settle upon this land while it was withdrawn, nor his failure to make entry until after the company's selection, it is sufficient to note that in his published notice he fails to specially cite

the company to appear at the time of his final proof. Under such circumstances the Commissioner was in error in considering such proof and the same must be returned for new publication.

In view of the recitation in this opinion in the matter of notice given by Kehoe and the action of the company based thereon in entering its protest, it would seem that some mistake has been made by counsel, or that careful examination was not made of the record.

As before stated, in the published notice Paul Schulze, the general land agent of the company, was cited to appear and under such notice he duly filed a protest on behalf of the company against the acceptance of the proof proposed to be offered by Kehoe setting up an adverse claim in the company under its grant. There was no objection made to the manner of service in this protest, and the same was dismissed because the proof as offered showed a superior claim in Kehoe.

Neither in the appeal from the action of the local officers, nor in the specification of errors in the appeal filed from your office decision, is any exceptance taken to the sufficiency of the notice given by Kehoe at the time of his offer of proof.

From a review of the matter I am of the opinion that the notice was sufficient and as the proof shows a superior claim in Kehoe, your office decision is affirmed and the company's selection will be canceled.

PRACTICE-APPEAL-RULE 48 OF PRACTICE.

WRIGHT". BRYAN.

To justify the finality as to the facts, provided for under rule 48 of practice, the findings of the local officers must be positive and unequivocal, not argumentative or presumptive.

Secretary Smith to the Commissioner of the General Land Office, January

Thomas L. Bryan has filed a motion for review of departmental decision of October 1, 1895 (unreported), which affirmed the judgment of your office, dated May 7, 1894, holding for cancellation his mineral entry No. 256, made September 7, 1892, for the S. of the NE. of the SE. of Sec. 13, T. 15 S., R. 70 W., Pueblo, Colorado.

It appears that on November 18, 1892, Fred. L. Wright, in behalf of himself and others, alleged occupants of the land, and intending to claim the same as a townsite, filed a protest against said mineral entry, charging, among other things, that five hundred dollars in labor and improvements had not been expended upon the claim prior to obtaining receiver's receipt therefor.

Upon the hearing the register and receiver found that contestee had complied with the law, and accordingly recommended that the contest be dismissed. It does not appear that any appeal was taken from that

finding, but your office, on receipt of the record, found that the mineral claimant had not complied with the law in the matter of expenditures, saying, further, that "according to claimant's own showing, the ground involved has not been sufficiently tested to either prove or disprove its containing a valuable mineral deposit," but upon this point, and in view of the action taken, your office declined to make any decision, presumably upon the ground that the failure of claimant to make the necessary expenditure was decisive of the whole question.

In the appeal from your office decision to this Department, claimant urged that under Rule 48 of Practice the findings of the local office upon a question of fact become final in the absence of an appeal, and that your office thereafter had no power to change those findings, except for causes specified in the rule itself.

While the Department in the decision, review of which is sought, did not discuss the point thus raised, it is presumed that the same was considered; and the disposition of the case necessarily involved the determination of the question raised adversely to appellant.

To entitle the claimant to patent, he must show that "five hundred dollars' worth of labor has been expended or improvements made upon the claim by himself or grantors," Section 2325 of the Revised Statutes. Upon this point the register and receiver find as follows:

The testimony on the question of $500.00 worth of labor and improvements is voluminous and in some things conflicting.

The improvements are meager, but the labor performed by Bryan and Womack, according to their testimony, goes to show the intention on their part to comply with the statutory requirements in good faith.

We are of the opinion that a fair preponderance of the evidence under the circumstances shows $500.00 worth of labor and improvements to have been expended upon said Womack Placer prior to and during the period of publication, and recommend that mineral entry No. 256 be allowed to proceed to patent.

This alleged finding, from the words employed, can not be regarded as an affirmative finding of a fact. The employment of the words, namely, "a fair preponderance of the evidence under the circumstances shows," etc., indicates that the register and receiver came to a conclusion without positive testimony. Indeed, the local officers admit the meager character of the improvements, but think such improvement "goes to show the intention on their part to comply with the law," etc.

In all such cases, the findings of the local officers to justify the finality referred to in Rule 48 must be positive and unequivocal, not argumentative or presumptive, as appears in this case.

Under the circumstances, your office was justified in looking into the evidence which induced the so-called finding of the local officers. That evidence shows that the required expenditures had not been made. The motion is denied.

MINING CLAIM-ADVERSE AGRICULTURAL CLAIM.

ASPEN CONSOLIDATED MINING COMPANY.

A mineral claimant who, in his application to purchase, temporarily excludes part of his claim that is in conflict with an adverse agricultural claim, does not thereby absolutely waive and renounce all interest in the tract so excluded, but may thereafter assert his right thereto by way of protest against the final proof of the agricultural claimant.

A mineral claimant who asserts an interest as against the final proof of an adverse agricultural claimant, and asks a hearing thereon, is entitled to be heard on appeal from the denial of his petition.

Secretary Smith to the Commissioner of the General Land Office, January

I have before me the petition of the Aspen Consolidated Mining Company, filed June 15, 1895, for writ of certiorari in the above styled contest. In this petition it is alleged that the petitioner is the owner of the Fowler placer mining claim at Aspen, Colorado, and has been ever since 1889; that said claim was discovered on the 15th of May, 1883, and located on the 19th of the same month; that the said claim has never been abandoned, and that annual assessment work has been regularly done thereon; that the land embraced in the said claim is placer and not agricultural, and contains no mineral in vein or rock in place; that on the 10th of April, 1885, the contestee, John Atkinson, made pre-emption entry of the N. NW. 1, and NW. NE. 4, of Sec. 7, T. 10 S., R. 84 W., and the NE. NE. of Sec. 12, T. 10 S., R. 85 W., and offered final proof September 27, 1886; that the said pre-emption entry conflicts with and embraces a portion of the said mining claim; that on the 4th of March, 1891, the said Aspen Consolidated Mining Company filed a duly corroborated affidavit, protesting against the said pre-emption entry, and alleging, in addition to the above, that the land embraced therein is not agricultural, but placer; that the entry was not made in good faith for agricultural purposes, but with fraudulent and speculative intent; and praying for a hearing and for opportunity to prove the allegations, and show that the entry should be cancelled. The petition also alleges that on the 23d of November, 1891, and while the said contest was pending before the Commissioner of the General Land Office, the petitioner applied for patent for the said Fowler claim; and also applied, on the 5th of March, 1892, to purchase the said claim, and as evidence of good faith, temporarily excluded from the last application, pending the contest aforesaid, the portion of the said claim in conflict with the said entry. It is also alleged in the petition that on the 19th of April, 1895, the Commissioner of the General Land Office dismissed the petitioner's protest aforesaid, and denied its right to appeal; that on the 9th of May, 1895, the petitioner filed a motion for review of the said decision of the 19th of April; and that on the 10th of June, 1895, the Commissioner overruled said motion for review.

Wherefore, the petitioner prays an order to the Commissioner of the General Land Office to certify the proceedings in the case to the Department, as provided in rules 83, 84, and 85 of the Rules of Practice, and that the decision of the Commissioner be reversed.

A copy of the application to purchase is attached to the petition, and shows that the exception was as follows:

but especially excepting and excluding from this application all that portion of ground embraced in preemption D. S. No. 84 of John Atkinson. Said exclusion, nevertheless, being only temporarily made, pending the determination of the tract of the said agricultural claim in conflict with said Fowler placer, now at issne under hearing already ordered by the Hon. Commissioner of the General Land Office, and applied for by claimant herein, to determine the possessory right and title to said tract.

A copy of the Commissioner's said decision of the 19th of April, 1895, is also attached to the petition, and it shows that the material part of the said decision was as follows:

By the exclusion from said (application to purchase) of conflict with the D. S. of Atkinson, said Aspen Consolidated Mining Company waived its right to said conflict absolutely, and the qualifying clause following the exclusion, above quoted, can be of no effect, for it is not for the land department to examine or take cognizance of the intention with which action is taken by claimants.

I consider it to be a proposition most clearly enunciated by the Department in the case of the Adams Lode, 16 L. D., 233, that an exclusion from a mineral entry, of a portion of the ground applied for, is not only a waiver of any rights to the parcel so excluded under the application and entry, but it is an absolute renunciation of all right, title and interest in and to such excluded tract, and that by such exclusion the land excluded becomes so far as the applicant is concerned “vacant” public land. As a protest, the paper filed by said Aspen Consolidated Mining Company is not regarded as sufficient to rebut the record evidence or to call for action by this office. Said protest is accordingly hereby dismissed. As above stated in effect, the Aspen Consolidated Mining Company is a protestant without interest, in view of which fact, it has no right of appeal herefrom. Further action upon this case will, however, be suspended under rule 85 of Practice.

A copy of the Commissioner's said decision of June 10, 1895, overruling petitioner's motion for review, is also attached to the petition.

The petition alleges facts sufficient to constitute ground for the order prayed for, and the usual course in such cases is to make the order. But in this case it is obvious on the face of the petition and exhibits that upon examination of the record here the decision of the Commissioner dismissing the protest and denying appeal would have to be reversed, and a hearing ordered as prayed for in the protest. Therefore long and unnecessary delay would be avoided, and the ends of good administration best subserved, by overruling the said decision and ordering the hearing now.

It was error to hold that by so omitting the land in conflict from its application to purchase the petitioner waived and renounced absolutely all right thereto, that it was a protestant without interest, that the protest was not sufficient to call for action by the Commissioner, and