Commissioner, or other officer than the register and receiver, will be accepted for purposes of making final proof.

You report, "that transcripts from the court records, duly certified. by the proper officer, are accepted as evidence. Frequently mere copies of such transcripts are presented, which copies are not accepted unless certified by the register and receiver of a district land office. This exception is made because in such cases a trusted officer of the Department has an opportunity to examine the transcript and certify the copy." It does not appear in the statement of Mr. Glover whether the proofs taken before him as United States Commissioner were in pre-emption or other cases under the land laws of the United States. Section 2259 of the Revised Statutes provides that certain persons having the quali fications therein set forth, shall have the right, upon the compliance with certain requirements, to make pre-emption entry of the public lands, not to exceed one hundred and sixty acres. Section 2262 (same volume) provides that before any person shall be allowed to make such entry, he "shall make oath before the receiver or register of the land district in which the land is situated that he has never had the benefit of any 1ight of pre-emption under section 2259," etc.

By act of June 9, 1880, (21 Stat., 169,) it is provided that the affidavit. required to be made by sections 2262 and 2301 of the Revised Statutes of the United States may be made before the clerk of the county court, or of any court of record of the county and state or district and territory in which the lands are situated, and the affidavit so made and duly subscribed shall have the same force and effect as if made before the register and receiver of the proper land district."

The act of March 3, 1877, (19 Stat., 403,) provides that the proof of residence, occupation, or cultivation, the affidavit of non-alienation and the oath of allegiance required to be made by section 2291 of the Revised Statutes of the United States may be made before the judge or in his absence before the clerk of any court of record of the county and state, or district and territory, in which the lands are situated; and the proof, affidavit and oath, when so made and duly subscribed, shall have the same force and effect as if made before the register or receiver of the proper land district."

Section 2 of said act provides the penalty for false swearing in the making of such proof. Prior to the enactment of said statutes entrymen were required to make their final affidavits before the register or receiver of the proper land district. In pre-emption cases the testimony of witnesses was allowed to be taken before any officer competent to administer oaths and affirmations. (See Crail Wiley 3 L. D., 430.)

For the convenience of entrymen and their witnesses, said acts were passed and the officers before whom final proof is duly made, if officers of courts of record, must duly authenticate the proceedings with the seal of the court. It is no more essential that the personal qualifications of the entryman shall be fully proven before a trusted officer of this

Department, than that the other proof required by the land laws shall be proven before the same officer. Since judges and clerks of courts of record have been specially designated by law and the regulations of this Department to take the final proof in certain cases, there appears to be no good reason why they should not examine the naturalization papers when offered, make accurate copies of the same, and incorporate them into the record under their official seal. You will therefore instruct the district land officers to receive copies of naturalization papers in place of the original where the final proof has been duly taken before an officer of a court of record and such officer certifies that he has carefully compared the copy transmitted with the original paper, presented by the entryman, and that the same corresponds in all respects. In all other cases, the copy should be certified by the register and receiver.

TOWNSITE-MINING CLAIM.

ESLER ET AL. v. TOWNSITE OF COOKE.

Townsites may be located on mineral land, and the townsite claimants will hold their claim subject to the right of the mineral claimants.

Questions involving priority of occupation, and the necessary use of the surface in conflict by the mineral claimants, will be left for determination to a jury of the neighborhood.

Pending appeal, no action in the case should be taken by the local office.

Assistant Secretary Muldrow to Commissioner Sparks, October 31, 1885.

I have considered the case of Frank Esler, John Keeney, N. J. Malin, George H. Smith, George Ash, G. A. Huston, and C. M. Stephens, with Fellows D. Plase and Pike Moore, protestants and mill-site claimants, v. Cooke Townsite, by Hon. J. P. Martin, probate judge for Gallatin county, Bozeman land district, Montana Territory, as presented by the appeal of the protestants from the decision of your office, dated August 14, 1884, dismissing their several protests, filed in the case. The record shows the following facts.

On October 8, 1883, the occupants of the town of Cooke City—which was unincorporated-filed a petition in the office of said probate judge "to have entered, surveyed and platted at this place so much of the public land as may be sufficient for a townsite, to be called Cooke City, in accordance with section 2382 of the Revised Statutes of the United States and section 1205 of the Revised Statutes of the Territory of Montana of 1879."

In November, 1883, the townsite was surveyed and the plat of its exterior boundaries, as certified by the United States surveyor-general for said Territory on January 12, 1884, shows that the same conflicts with mill-site surveys "B," "C," "E," "F," "J," "L," "45 B," "3,” “4,"

and "G." to the extent of 27.11 acres, and the area not in conflict to be 21.05 acres.

On February 8, 1884, the mill-site claimants, by their attorney, filed with the district land officers notice of their several mill-site claims, and asked to be notified of any attempt to make proof and entry of the land claimed for a townsite, as shown by said plat of survey.

On February 9, 1884, townsite proof was made before the register, which tended to show, among other things, that the land was selected and occupied as a townsite in May, 1883, that the land is non-mineral; that there are three stores of general merchandise; one livery stable; six saloons; one drug store; one hotel and two or three boarding houses; that the town is unincorporated, with about two hundred inhabitants, and that the improvements thereon cost seven thousand dollars.

On March 7, 1884, the attorney for Esler filed in the district land office his protest against allowing entry of said townsite, so far as the same embraces mill-site "B," as shown by said plat of survey. Protests were filed by the other mill-site claimants, the particular date not appearing, against allowing entry for the lands covered by the mill-site surveys, except those designated as "C," "3" and "4." The protestants aver that each mill-site was located in connection with a distinct lode claim; that such location was made prior to the date of the petition of the townsite occupants; that a survey of each location was made prior to the survey of the townsite, and that said mill-sites were located in good faith, and are in use and occupation by the claimants, upon which they have expended large sums of money.

On March 12, 1884, the townsite proof was "suspended and referred" to your office, together with the protests of the several mill-site claimants. The protests were dismissed by your office as stated (supra), for the reason that there was no evidence that the lode claims were taken in accordance with law, or that the locators complied with the local or United States laws; that the protestants did not allege that the townsite claimants have failed to comply with the law in any particular, and that if the mill-site claimants have any valid possessions held under existing lows, which appear to be in conflict with said townsite claim, they will be fully protected by the reservation clause, which will be inserted in the patent for said townsite, should one be issued. No mention of any right of appeal was made in said decision, and on August 23, 1884, said probate judge made cash entry No. 227 in trust for the townsite of Cooke, under the act of March 2, 1867, and the act of June 8, 1868, now incorporated into the Revised Statutes, section 2387 and section 2392. Appeals were duly taken from said decision, and several grounds of error are assigned.

It is insisted by the appellants, that when said protests were filed and notice given of the several mill-site claims, which were shown to conflict with the townsite application, a hearing should have been ordered to determine the rights of the respective claimants, and also that the

Rico case, cited as an authority in said decision, is not applicable, for the reason that in that case a hearing was held and the case was decided upon the whole testimony.

It will be proper to inquire what is the character of the claims of the protestants. They claim under the first paragraph of section 2337 of the Revised Statutes, which provides that, "Where non-mineral land not contiguous to the vein or lode is used or occupied by the proprietor of such vein or lode for mining or milling purposes, such non-adjacent surface ground may be embraced and included in an application for a patent for such vein or lode, subject to the same preliminary require. ments as to survey and notice as are applicable to veins or lodes." It is conceded by all parties that the land embraced in said mill-site claims is non-mineral and non-contiguous to the lodes with which they are said to be connected.

Section 2386 of the Revised Statutes provides that "where mineral veins are possessed, which possession is recognized by local authority, and to the extent so possessed and recognized, the title to town lots to be acquired shall be subject to such recognized possession, and the necessary use thereof," and it is provided in section 2392 of the Revised Statutes that, "No title shall be acquired under the foregoing provisions of this chapter to any mine of gold, silver, cinnabar or copper; or to any valid mining claim or possession held under existing laws."

It has been repeatedly held by this Department and the courts of the country that townsites may be located on mineral land, and the townsite claimants will hold their claims subject to the rights of the mineral claimants. Townsite of Butte (3 C. L. O., 131); Rico case (1 L. D., 567); Vizina Consolidated Mining Co. (9 C. L. O., 92); Papina v. Anderson (10 id. 52); Mining Co. v. Consolidated Mining Co. (102 U. S., 168); Steel v. St. Louis Smelting Co. (106 id. 447).

In the Rico case (supra) this Department expressly ruled that under section 2386, "the title to town lots to be acquired shall be subject to such recognized possession and the necessary use thereof," that if necessary the mineral claimant may take the ground for the purpose of sinking a shaft to his lode for the erection of the buildings required to carry on his mining enterprise for reduction works, or for a millsite, and in such a case, the claim under the townsite must be subject to the claim under the mineral law. It was further decided in said case that all "questions of priority of occupation, as well as the question, what is the necessary use of such surface by the mineral claimants, ought to be submitted to a jury of the neighborhood where such controversies arise."

The ruling as above stated was re-affirmed in the Vizina Consolidated Mining Company (supra), and may be considered now as well settled by this Department.

A careful consideration of the whole record fails to disclose any error in the decision of your office dismissing said protests, and it is accordingly affirmed. It appears, however, that subsequently, without wait

ing for the time to pass within which an appeal may be filed, the register and receiver allowed the townsite entry. This was error. The appeal of the mill-site claimants ought to have suspended all action relative to the tracts involved, until the questions raised by said appeal are finally determined. It also appears that since the decision of your office dis missing the protests of the mill-site claimants, application for patent has been made upon the mill-site in connection with the "Bull of the Woods" claim, publication had and adverse claims filed by those claiming under the townsite entry, and appeal has been filed by the mineral claimants from the refusal of the district land officers to allow entry pending the decision in the courts of said adverse claims. As there has been no decision by your office upon said appeal, it is not deemed advisable for this Department to express any opinion in advance of your decision upon the same.

RESTORATION OF FORFEITED RAILROAD LANDS.

TEXAS PACIFIC R. R. Co. AND SOUTHERN PAC. (BRANCH LINE) R. R. Co.

The act of Congress declaring forfeited, and restoring to entry, lands granted to the Texas Pacific Railroad Company, is held to apply to lands along the branch line of the Southern Pacific Railroad Company, where the same passes through lands withdrawn for the former company, as by the terms of the grant to said Southern Pacific, such lands were excepted therefrom in favor of the Texas Pacific Company.

OPINION.

Assistant Attorney-General Montgomery to Secretary Lamar.

Agreeably to request for an opinion touching the matter of the res toration to market of certain lands in California within what are claimed as the joint limits of the Texas Pacific and Southern Pacific Railroad · Companies, I beg leave to submit the following:

་

On March 3, 1871, Congress passed an act incorporating the Texas Pacific Railroad Company, and authorizing said company to construct a railroad and telegraph line,

"From a point at or near the town of Marshall, county of Harrison, Texas; thence by the most direct and eligible route, to be determined by said company, near the thirty-second parallel of north latitude, to a point at or near El Paso; thence by the most direct and eligible route, to be selected by said company, through New Mexico and Arizona to á point on the Rio Colorado at or near the southeastern boundary of the State of California; thence by the most direct and eligible route to San Diego, California, to Ships Channel, in the Bay of San Diego, in the State of California."

It was also thereby enacted

"That for the purpose of aiding in the construction of the railroad and telegraph line herein provided for, there is hereby granted to said