Manilla Lode Mining Claims (31 L. D., 37), held that "the stamp mill can not be properly credited as an improvement upon or for the benefit of the claim," and found that the other certified improvements are not sufficient to satisfy the requirement of the statute. The local officers were directed to notify the claimant company that it would be allowed sixty days from notice within which to file a supplemental report by a mineral surveyor, certified by the surveyor-general, showing that an expenditure of $500 had been made upon or for the benefit of the claim, prior to the expiration of the period of publication of notice; and it was stated that on failure to make such showing and in the absence of appeal the entry would be canceled without further notice.

The claimant company has appealed to the Department.

It is well settled that labor and improvements to be credited in satisfaction of the statutory requirement must actually promote or directly tend to promote the extraction of mineral from the land or forward or facilitate the development of the claim as a mine or mining claim, or be necessary for its care or the protection of the mining works thereon, or pertaining thereto. (Smelting Co. . Kemp, 104 U. S., 636, 655; Copper Glance Lode, 29 L. D., 542; Zephyr and Other Lode Mining Claims, 30 L. D., 510, 513; Highland Marie and Manilla Lode Mining Claims, 31 L. D., 37, 38.)

In the Highland Marie case, supra, the Department said:

There is a sense, of course, in which the ownership of a mill in the vicinity of a mine, for crushing or reducing ores, by one who is also the owner of the mine, may promote the development of the mine, but so also doubtless, to some extent, might the development of the mine be hastened or promoted by the ownership or interest of such mine owner in a stock of mining implements or machinery kept in a general supply store in the neighborhood, or by his ownership of or interest in a tramway or railway built to bring in supplies and carry out mining products to and from the nearest mining camp. But in all these instances the connection between the ownership or interest in the thing mentioned and the development of the claim or the extraction of ore therefrom is too remote to justify holding such thing to be an improvenient upon or for the benefit of the claim, or the crediting of the value of any part thereof toward the required expenditure.

It is contended by the appellant company, in effect, that the prin ciple announced in the above case with respect to a stamp mill, the value of which was therein sought to be accredited in satisfaction of the statutory requirement as to improvements for the benefit of a number of claims, embraced in separate groups of claims, has no application to this case wherein the mill is situated upon the single claim involved, and was built for the benefit of that claim only.

This contention is not tenable. The Department is of opinion that the controlling objection made in the Highland Marie case is clearly applicable here.

A stamp mill erected upon a mining claim may be of benefit to the owner of the claim, but it in no way directly facilitates the extraction of mineral therefrom, or contributes to its development as a mine. Whilst it may be of advantage to have a stamp mill upon the claim and thus save a long haul of the ore extracted therefrom, yet such a mill is not an active agency in the actual development of the mine; and the relation in that respect is precisely the same whether the mill be situated upon the claim or at some distance there from. The only purpose which the mill can serve is in treating the mineralbearing rock after it has been mined from the claim. A stamp mill has no connection with the operation of extracting mineral from the ground, but its function begins only when the process of mining has ceased.

The stamp mill here assigned and certified as an improvement upon the claim can not, therefore, be accepted as coming within the meaning and intent of the statute.

The decision of your office is affirmed.

B. B. WELDY.

Motion for review of departmental decision of February 1, 1907, 35 L. D., 405, denied by Secretary Garfield, April 9, 1907.

MINING CLAIM-ADVERSE PROCEEDING-SECTIONS 2325 AND 2326, R. S.

GRAND CANYON RAILWAY Co. ». CAMERON.

The provisions of sections 2325 and 2326 of the Revised Statutes contemplate, as the subject of judicial determination, the disputed possessory right to ground embraced in conflicts between different mining claims only.

Secretary Garfield to the Commissioner of the General Land Office, (G. W. W.) (G. N. B.)

April 9, 1907.

May 17, 1905, Ralph H. Cameron filed application for patent for the Golden Eagle and the Cape Horn lode mining claims, surveys numbers 2,022 and 2,023, respectively, Phoenix, Arizona, land district. The claims are situate in Sec. 23, T. 31 N., R. 2 E.

During the period of publication of notice of the application The Grand Canyon Railway Company filed what it called an "adverse claim and protest," and, it appears, suit was instituted thereon in the district court of the fourth judicial district of the Territory of Arizona, within thirty days from the date it was filed.

In the "adverse claim and protest," amongst other things, it is alleged, in substance, that The Grand Canyon Railway Company, as successor of the Santa Fe and Grand Canyon Railway Company, is the owner of the right of way from Williams, Arizona, through the Grand Canyon forest reserve to Bright Angel, Arizona, and of station grounds, granted by the act of May 18, 1898 (30 Stat., 418); that the protestant and its predecessor constructed a railroad upon such right of way; that the protestant operates such road, and in September, 1901, laid out and occupied station grounds, not exceeding twenty acres in extent, on the section in which the mining claims applied for are situate; that the mining claims conflict in part with the station grounds as laid out and occupied; that the lands covered by the mining claims contain no valuable deposits of mineral in rock in place or otherwise; that the claims are not located upon mineral land; that the applicant has not expended for labor and improvements upon or for the benefit of either of the claims the sum of $500 as required by the statute; and that the notice required by the statute was not posted on either of the claims: wherefore, it was prayed that all proceedings upon the application for patent might be stayed by the local officers until the rights of the parties to the lands in conflict could be determined in court.

August 19, 1905, the mineral applicant filed a motion to dismiss the "so-called adverse claim," on the ground that it presents no reason for a stay of proceedings upon the application, as it is not an "adverse claim" within the meaning of sections 2325 and 2326 of the Revised Statutes.

The local officers concurred in holding that the instrument so filed is not an adverse claim within the meaning of those sections, but disagreed as to their authority to dismiss it.

Upon appeal your office, by decision of May 5, 1906, approved the concurring conclusions below, and held the so-called adverse claim for dismissal.

The protestant has appealed to the Department.

It is well settled that the provisions of sections 2325 and 2326 of the Revised Statutes contemplate, as the subject of judicial determination, the disputed possessory right to ground embraced in conflicts between different mining claims only. Richmond Mining Company . Rose (114 U. S., 576, 584); Iron Silver Mining Company r. Campbell (135 U. S., 286, 300); Creede and Cripple Creek Mining and Milling Company . Uinta Tunnel Mining and Transportation Company (196 U. S., 337, 357); Wright v. Hartville (13 Wyo., 497; 81 Pac. Rep., 649); Powell v. Ferguson (23 L. D., 173); Snyder v. Waller (25 L. D., 7); North Star Lode (28 L. D., 41, 43); Ryan e. Granite Hill Mining and Development Company (29 L. D., 522). The decisions to the other effect, in Bonner v. Meikle (82 Fed., 697)

and Young. Goldsteen (97 Fed., 303), cited by the appellant, are not only not of binding authority here but are not persuasive, being wholly at variance with the views expressed in the cases next above cited and the manifest purpose of the statute.

The records of your office sustain the allegations of the protest as to the grant to the protestant, and compliance with its terms and the rules and regulations of the land department respecting grants to railroad companies of rights of way, etc. It is not denied by the mineral claimant that a railroad was built on the right of way; that depot grounds were established and surveyed on section 23; that the railroad is owned and operated by the protestant company; and by a blueprint tracing accompanying the record the Cape Horn location is shown to present a considerable conflict with the station grounds and the Golden Eagle location a small conflict with the railroad right of way outside those grounds. The claim of the appellant company to the lands involved rests wholly upon its grant, and it is not a rival claimant under the mining laws.

Whilst the record contains what purports to be a transcript of an oral opinion or decision by the judge of the aforesaid district court of the Territory, in favor of the railroad company, in an apparently concurrent action or suit between the same parties, but in which their positions as plaintiff and defendant were reversed, and involving one of the mining locations here in question, it does not appear that the suit commenced by the railroad company to support its so-called adverse claim has yet passed to judgment; but in any event the issues thus far disclosed are not such as could form the basis of a judgment which would be binding upon the land department or which it should accept in lieu of its own determination.

The mining location involved and upon which the applicant for patent relies, as indicated by the certificates thereof with the record, were made April 10, 1902 (amended February 23, 1904), and subsequent to the railroad company's establishment and occupation of the station grounds. The company's grant by the act of May 18, 1898, supra, is expressly "subject to the rules and restrictions and carrying all the rights and privileges of" the act of March 3, 1875 (18 Stat., 482). Thereunder the railroad company has acquired merely an easement, subject to which the desired mineral patent may issue in the absence of other objection (see case of John W. Wehn, 32 L. D., 33), but by virtue of which easement the company may rightfully resist the patent application upon any sufficient ground.

The instrument filed by the company may be treated as a protest, which raises a question of the character of the land, of the expendi

580 VOL 35-06 M-32

tures in improvements on the claims, and of the sufficiency of the posted notice, all of which are committed to the land department alone to determine, and upon which the issue of mineral patent might be defeated. The appellant will therefore be afforded opportunity to apply for a hearing, in the usual manner, upon these questions.

The decision of your office is modified accordingly, and the papers are returned for such further proceedings as may appropriately be had in the premises.

Cox. WELLS.

Petition for re-review of departmental decision of February 7, 1906, 34 L. D., 435 (adhered to on motion for review, October 5, 1906, 35 L. D., 208), denied by Secretary Garfield, April 9, 1907.

TIMBER AND STONE ENTRY-CHARACTER OF LAND.

DUNCAN . ARCHAMBAULT.

Where the character of land sought to be acquired under the timber and stone act is put in issue, entry under that act may be allowed only where it appears that the growth of timber thereon is so extensive and so dense as to render the tract as a whole, in its present state, substantially unfit for cultivation, and that the chief value hereof is for the timber thereon.

Secretary Garfield to the Commissioner of the General Land Office. (G. W. W.) April 11, 1907. (E. O. P.)

John Archambault has appealed to the Department from your office decision of March 22, 1906, reversing the action of the local officers dismissing the protest of William A. Duncan against the allowance of timber and stone application filed by John Archambault for the NW 4, Sec. 35, T. 164 N., R. 72 W., Devils Lake land district, North Dakota, and holding that the allegations contained in said protest were sustained by a preponderance of the evidence, thus in effect rejecting said application.

But one error is specified as ground for reversal, and this relates solely to the correctness of your finding that the land in question is not chiefly valuable for its timber and unfit for cultivation.

The material facts disclosed by the testimony are correctly set out in your said decision. It is contended by counsel for the timber and stone applicant that the conclusion reached can not be supported if the rule of classification laid down in the case of United States e. Budd (144 U. S., 154, 167) be observed. The correctness of this