PRE-EMPTION-NATURALIZATION-SECOND FILING.

Ross v. POOLE.

A pre-emptor must possess the pre-requisite personal qualifications at date of settle ment.

A declaration of intention to become a citizen, made by the father, during the minority of the son, will not confer rights of citizenship upon the son under section 2172 of the Revised Statutes.

A second filing permitted where the first was illegal.

Secretary Lamar to Commissioner Sparks, August 27, 1885.

I have considered the case of William Ross v. John Poole, involv ing the N. of the SE. of Sec. 13, T. 157, R. 56, Grand Forks district, Dakota, on appeal by Ross from your office decision of May 31, 1884.

Ross filed pre-emption declaratory statement No. 2880 for the tract February 11th, alleging settlement February 4, 1882. Poole made homestead entry No. 6622 of the tract January 12, 1883.

It appears that Ross was born in Erin Township, Province of Ontario, Canada, on or about July 26, 1861, and that he emigrated to the United States in December, 1881. His father also came to this country some time in 1881, and declared his intention to become a citizen of the United States December 31, 1881. Ross avers that having been advised by counsel he believed that his father having so declared during his minority it was competent for him to file by virtue thereof.

Your office decision, however, awarded the land to Poole, for the reasons that Ross was not a qualified pre-emptor either at the date of his settlement or filing, that he did not become such until after Poole's entry, and that he filed for the tract prior to settlement.

Upon Ross' appeal in the first instance, this Department under date of January 27th last concluded its consideration thereof in this wise: "It appears that the local officers transmitted to you Poole's final proof, which you have returned to them with instructions to allow final certificate thereon, if the same is satisfactory to them; but as it does not appear from the case, as now presented, that Poole commuted his entry to cash, or how otherwise he was allowed to make final proof upon his entry in a little more than a year from its date, and as this Department can not without inspection of the papers consider and adjudge the same and the pertinent questions raised by the appeal, you will order the return of all the papers in the case from the local office, and when received transmit them to this Department."

Pursuant to the foregoing direction, your office, per letter of Feb. ruary 20th last, transmitted Poole's final commutation proof. It ap pears to be regular in all respects, and shows him to be a qualified homesteader and that he has complied in good faith with legal requirements. Hence, he is entitled to a patent for the tract in question, unless Ross has the paramount right thereto.

Now, as touching Ross' personal qualifications, it will be observed that he did not declare bis intention to become a citizen until June 29, 1883. Such declaration availed him nothing, because Poole's adverse right had intervened January 12th preceding, the date of his entry: nor can he invoke the provisions of section 2172 of the Revised Statutes; for although both he and his father are dwelling in the United States, it does not appear that his father was duly naturalized during his son's minority, but that he merely filed the statutory preliminary affidavit, declaring his intention to become a citizen.

It has been repeatedly held by this Department, notably in the case of McMurdie v. Central Pacific R. R. Co., (3 C. L. O., 36,) that a preemption claimant must possess the pre-requisite personal qualifications at date of his settlement upon the land claimed; and that the doctrine of relation can only be invoked to preserve a right, but not to create one. "A pre-emptor has always been required to show his qualifications. A patent for land relates back to the inception of the claim therefor; hence it must be a valid claim at its inception; because the doctrine of relation, whether applied to prevent a forfeiture, or in patents to preserve the patentee's title, is only invoked to preserve a right, and not to create one." See also Kelly v. Quast, (2 L. D., 627,) and Mann v. Huk (3 Id., 452).

Inasmuch therefore as Ross failed to cure such material defect prior to the initiation of Poole's right in the premises, and as it has been shown also that he filed prior to settlement, I am of opinion that his filing is a nullity. Moore v. Robbins (96 U. S., 530.) Your office decision holds in conclusion with respect to Ross' pre-emptive right: "It may be stated that should this filing be canceled Ross may again exercise the pre-emption privilege, in view of the fact that he was not personally qualified to make the first." I affirm said decision.

MINING CLAIM-PROTEST-WAIVER.

ST. LAWRENCE M'G CO. ET AL. v. ALBION CONSOL. M'G Co. An allegation that the claim is not properly bounded by the survey stakes but includes part of protestant's patented mine, raises an issue on a matter of administration which may be examined through the office of the surveyor general and any errors corrected if found.

Patent may issue upon the filing of a waiver of the adverse claim in the local office without ascertaining whether the pending judicial proceedings on such claim have also been abandoned and the suit dismissed by the court.

Secretary Lamar to Commissioner Sparks, August 27, 1885.

I have considered the case of the St. Lawrence and Richmond Mining Companies v. The Albion Consolidated Mining Company, involving the right of the latter to proceed with its application for patent for the claim known as the Albion No. 1 Lode, Eureka District, Nevada, filed

in the local office July 9, 1878, and stayed by filing of the adverse claim of the St. Lawrence Mining Company August 30, 1878.

Suit was duly commenced, and is still pending, no final judgment having been certified to the district office thereon.

No adverse claim was filed by the Richmond Company, and its objec tion is based upon a protest filed May 13, 1881, alleging that the stakes set to mark the claim as surveyed do not correctly bound the tract on the ground, but include a small portion of the patented Tip Top mine, the property of said protestant.

Your office decided April 7, 1883, that this protest was sufficient to authorize a hearing before the local office as to the fact of discrepancy; but on the 21st of the same month that ruling was modified and the protest dismissed, on the ground that a further examination did not disclose a prima facie showing of conflict, and the allegation was not sufficiently clear to justify such order for hearing. The company appeals.

It is only necessary to suggest in disposing of this question, without deciding as to the status of the company as a proper contestant on such an issue, that it is a matter of ordinary administration relating to the question of possible error in the survey, and may be corrected by proper examination through the office of the surveyor general, if any inaccuracy shall be discovered.

The question as to the St. Lawrence Company comes up on appeal from your predecessor's decision of April 7, 1883, declining to recognize a waiver of the said company's claim filed in the district office January 15, 1880, and refusing to permit entry of the claim of the Albion Company offered to be made on the 3d of November, 1882, and rejected by the register and receiver.

The decision was to the effect, (1), that no waiver was filed by the legal board of trustees of the St. Lawrence Mining Company; that if officers de facto, the same persons were also officers of the Albion Company, and their fraudulent act purporting to waive the claim for the benefit of the latter company, could not make valid and binding the act as to the latter as "third persons without knowledge;" and, (2), that, without reference to the authority of the board no waiver in the land office alone of a claim pending in court under section 2326 of the Revised Statutes could release the bar of jurisdiction and stay of proceedings; but that such waiver must be made in the court itself, and be thence formally communicated to the land department.

At date of decision proceedings in quo warranto were pending ou appeal in the supreme court of California to determine the right and authority of the persons claiming to constitute the board of trustees of the St. Lawrence Company in this transaction, and your office anticipated the decision of the court in finding upon that point, which was finally decided December 10, 1883, (64 California, 373,) in favor of the said persons, and contrary to the finding of your predecessor.

The waiver was therefore filed by the proper representatives of the company, and the question of their status de facto is not before me. The second question consequently becomes sole, to wit:

Has the land department a right to proceed and issue patent, upon the filing of a waiver of adverse claim in the office of the register and receiver, without first ascertaining that the judicial proceeding has also been abandoned, and the suit properly dismissed by the courts?

Whatever has been said heretofore and whatever might be said on this subject, the precise point seems to have been considered by the U. S. Supreme Court in Richmond Mining Company v. Rose (114 U. S., 576), decided 4th May last, involving portions of the same Ruby Hill mining ground of which these claims form a part.

After deciding the general proposition that all questions should be decided by and belong to the court, and holding that the stay operates till final judgment, the court seem to have comprehended the possibility of certain exceptions, under the peculiar wording of the statute, and say: "What, then, is meant by the phrase 'all proceedings shall be stayed until the controversy is settled or decided by a court of competent jurisdiction, or the adverse claim waived?'

"We can imagine several ways in which it can be shown that the adverse claim is waived without invading the jurisdiction of the court while the case is still pending. One of these would be the production of an instrument signed by the contestant and duly authenticated, that he had sold his interest to the other party, or had abandoned his claim and contest."

Here is an affirmative declaration by the highest judicial tribunal, setting out one of the several ways (others also being given) in which waiver may be shown without invading the jurisdiction, and leaving the case still pending in court. This, I think, settles the legal construction as to the intendment of the statute.

It only remains to be seen whether or not the instrument, filed by the St. Lawrence Mining Company in this case, auswers to the instrument described by the court. If so, it would seem that the stay is removed, and its filing, in the language of the court, "might authorize the land officers to proceed."

Without fully reciting the verbiage of this document, which is on file, it is sufficient to state that it was sigued by the president under corporate seal of the company; that it was addressed to the register and receiver of the Eureka office and to all persons and companies interested or claiming any interest in said Albion No. 1 lode, or mining location; that it fully described the application, the protest and adverse claim with reference to location and dates of filing, and specifically withdrew and directed the local officers to cancel all protests, objections and other opposition to the issue of patent to the Albion Company on such lode. It was accompanied by authenticated copy of a proper resolution of the

board of trustees of the St. Lawrence Company, authorizing the waiver and abandonment.

To this may be added the fact that by authority of a resolution of the board of trustees, adopted the same date, January 7th, 1880, the said Company also made on the 9th of that month a deed of conveyance to the Albion Company of all interest in the Albion claims and locations. There can, I think, be no doubt that the documents filed constitute a sufficient and valid waiver to justify the resumption of proceedings by this department; and as the stay is removed by express sanction of law, I do not regard the disputes and disagreements of factional parties, claiming to represent possible interests in the St. Lawrence Company and preventing a dismissal of the suit in court, as proper ground for refusing to consider the Albion application on its merits, when the authority of the parties to make the waiver has been thus conclusively settled by the judicial tribunals. If the stay is removed, the duty of administration revives.

I therefore reverse your predecessor's decision, in view of the present aspect of the case, and remand the same for further action by your office.

MINING CLAIM-RES JUDICATA,

SOUTHWESTERN M'G Co. v. GETTYSBURG LODE CLAIM.

It being apparent upon the face of the record that mistake has occurred in the decision of a former head of the Department, and that it is impossible to execute said decision, the rule of res judica'a will not prevent an examination and disposal of the case on its merits.

Secretary Lamar to Commissioner Sparks, August 27, 1885.

Referring to the Assistant Commissioner's report of 14th March last, you are advised that I have considered the application of the Southwestern Mining Company for a review of departmental action of December 18, 1883, and March 3, 1885, declining to disturb your predecessor's ruling of July 23, 1883, to the effect that as all controversy respecting the title to the Gettysburg mine appeared to have been settled by the acquisition of both claims by the Southwestern Company, he was disposed to waive whatever of informalities might appear in the record and approve the entry for patent. As preliminary to this proposed action, the register and receiver were instructed to call upon the manager of said company for certified copies of the alleged conveyances, showing such transfer of interest, and to notify all other parties in interest that upon receipt of such proof the entry would be so ap proved.

The attorney for the Southwestern Company having protested against such disposal of the case and filed an abstract of title exhibiting the present interest of the said company, the departmental rulings of December 18, 1883, and March 3, 1885, were made.