ing ordinary brick clay are not mineral lands within the meaning of the mining laws.

In the first of the above cases it was held that a deposit of brick clay, which rendered the land upon which it existed more valuable on that account than for agricultural purposes, was not subject to entry as mineral land; in the second it was decided that land chiefly valuable on account of deposits of ordinary brick clay could not be entered under the mining laws.

Notwithstanding the above rulings, it is contended by protestants that the clay found upon the land here in question is a mineral, and as the land is of more value for the manufacture of ordinary brick than for agricultural purposes it is mineral in character.

It is further insisted that the above cited cases were not well considered; that the conclusions arrived at therein are wrong in principle, not supported by authority, and that said cases have been practically overruled by later decisions of the Department.

In support of the above propositions counsel for protestants have filed an elaborate brief, which has been carefully examined and considered, but in the opinion of the Department no valid reason has been presented for disturbing the rulings heretofore made and referred to above.

While it is true, as stated by counsel, that in Dunluce Placer Mine, supra, no reason was given for the conclusion reached, yet it can not be assumed that the question involved and decided was not carefully considered. In Blake Placer Claim (unreported) the decision was upon a motion for review, and an examination of the papers in the case shows that the question involved and determined was thoroughly investigated before the decision was rendered.

The contention that the rulings above referred to are antagonistic to later decisions and that the Department has practically overruled the cases wherein they were made, is not supported by the citations in the brief of counsel, as an examination will disclose. The cases referred to are Pacific Coast Marble Co. v. Northern Pacific Railroad Co. (25 L. D., 233); Phifer . Heaton (27 L. D., 57); and Richter et al. v. State of Utah (27 L. D., 95). In the first case it was held that lands chiefly valuable for deposits of marble are mineral in character; in the second, that lands containing a deposit of gyysum cement, and more valuable on that account than for agricultural purposes, are not subject to agricultural entry; and in the third, that lands wherein exist valuable deposits of guano are subject to entry as mineral land.

The distinction between the cases containing the rulings complained of and those cited by counsel as sustaining protestants' contention, is plainly apparent. Deposits, such as marble, gypsum cement, and guano, are classed by standard authorities on mining matters as mineral. On the other hand, no standard authority has been cited, nor has any been found, which in direct terms says that ordinary brick

clay is mineral, while it is a well known fact that such clay exists generally throughout the entire country, in quantities more or less varying, and that the lands where found, as a rule, are valuable for agricultural purposes.

Counsel for protestants state that no court in this country has held brick clay to be mineral. It is claimed, however, that in England judicial construction is to the effect that such substance is mineral. To sustain this latter statement but one case is cited, viz., Midland Railway Company . Haunchwood Brick and Tile Company (L. R., 20 ch., 552). This case does not support the statement, nor is it an authority upon the proposition advanced. The question whether or not brick clay is mineral, as the term is generally understood and accepted, was not involved, nor was it raised. The deposit which was the subject of the litigation, as appears from the statement of the case (p. 552), was a bed of brick and fire clay, while in the opinion of the court it is stated that the deposit is a bed of clay used in making a peculiar kind of brick, and of some value, from the circumstance that it contains a certain amount of iron" (p. 560). The question involved and determined was whether or not the word "mines,” as used in the 77th section of the Railways' Clauses Consolidation Act, 1845 (8 Viet. C., 20), included a bed of brick and fire clay which was being developed by open workings. The court held that such deposit worked in such manner was a "mine" within the meaning of the section. While in the opinion the court says that the word minerals means “primarily all substances (other than the agricultural surface of the ground) which may be got for manufacturing or mercantile purposes," such statement can not be accepted as authority in support of the proposition here advanced, viz., that Congress intended lands which are of more value for their deposits of ordinary brick clay than for agricultural purposes should be dealt with and disposed of as mineral lands.

The long established rule of the Department is, that land of the character here involved is subject to agricultural entry. This rule has been generally accepted and acquiesced in. Unless clearly shown to be wrong in principle and in violation of both the letter and spirit of the mining laws, it should not be disturbed. In the opinion of the Department no reason exists which justifies its abrogation.

Your office decision holding said tract to be non-mineral in character is affirmed, and the protest accordingly dismissed.

KING ET AL. v. BRADFORD.

Motion for review of departmental decision of October 10, 1901, 31 L. D., 108, denied by Secretary Hitchcock December 30, 1901.

HOMESTEAD-SOLDIERS' ADDITIONAL-ASSIGNMENT.

ALTENBERG . FOGARTY.

The regulation of the land department requiring assignment of soldiers' additional rights to be acknowledged, is a mere rule of evidence, and not a rule of law fixing what acts are essential to a valid assignment of such rights.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) October 14, 1901. (J. R. W.)

Cos Altenberg appealed from your office decision of May 29, 1901, dismissing his contest against Edmond Fogarty's right, as assignee of Erasmus P. Cowart's additional homestead right, under Sec. 2306 of the Revised Statutes, to enter lots 1 and 2, Sec. 3, T. 28 N., R. 21 E., Helena, Montana.

September 17, 1898, Fogarty, as assignee of Sutton L. Fuller, intermediary assignee under an assignment purporting to be acknowledged August 31, 1898, before Asa B. Fuller, notary public, Cullman county, Alabama, made application to locate the right upon the lands above described. After notice by your office to Cowart and, at his instance, to Cos Altenberg, of Little Rock, Arkansas, March 23, 1899, Altenberg transmitted to your office an assignment by Cowart to him of the same right, dated January 12, 1899, claiming ownership of the right. June 6, 1899, Altenberg transmitted to your office his affidavit, on information and belief:

That the pretended assignment of Erasmus P. Cowart to Sutton L. Fuller, dated August 31, 1898, is fraudulent and void, there being no consideration for the same, and there having been no contract or agreement consummated by and between the parties for sale of soldier's claim, and that Fogarty's claim is predicated on the assignment of Cowart to Fuller, . . . that the said pretended assignment was not executed as the law directs, in this: It purports to have been executed before Asa B. Fuller, Notary Public, in and for Cullman Co., Alabama, August 31, 1898, when in truth and fact said Erasmus P. Cowart did not appear before Asa B. Fuller, Notary Public, August 31, 1898, in Cullman Co., Alabama, and did not acknowledge or execute assignment of soldier's additional homestead right before Asa B. Fuller, Notary Public, in Cullman Co., Alabama, at any time or before any officer authorized to take acknowledgment of written instruments.

May

that-

12, 1899, there was filed the affidavit of Erasmus P. Cowart

I never was in Cullman County in my life, nor did I ever see Sutton L. Fuller in my life, neither did I ever receive any money from him for my claim. But I did sell, assign, and convey title to my claim and receive pay for same from a Mr. Cos Altenberg, for I assigned the papers before Notary J. B. Barclay. Asa B. Fuller came to see me about buying my claim, but never came back to complete it, and I supposed the proposed trade had fallen through, therefore sold to Cos Altenberg, and never would have known that Fuller had sold it as being his, if I had not been notified. I know Mr. Fuller has no right to it, but Mr. Altenberg has a right to it, for he paid me for it, and I made him a right to it.

Under direction of your office a hearing was had at the local office, the testimony being taken by depositions, both parties participating, and, July 9, 1899, the local office recommended that Fogarty's appli

cation be rejected and that Cowart's assignment to Fuller be held void. Your office decision held the assignment to Fuller to be valid, dismissed Altenberg's claim of ownership of Cowart's right and approved Fogarty's location thereof.

The objections made to the validity of the assignment to Fuller are that the consideration (eighty dollars) was not paid, and that Asa B. Fuller, the notary who took the acknowledgment at Larkinsville, in Jackson county, Alabama, was appointed as a notary public in and for Cullman county, and not empowered to act as such officer in Jackson county.

The evidence shows that the assignment of August 31, 1898, by Cowart to Fuller, was in apt words to transfer his right, was made in the presence of two attesting witnesses-one of whom at least understood its purport to be an assignment of the right-Cowart's signature was genuine, and his delivery of the instrument was voluntary. It is, however, shown that Cowart was not in Cullman county, that no acknowledgment was or could have been made, or taken, there, and that the entire business was transacted in Jackson county, where the notary had no authority to act. Edinburg Co. v. Peoples, 102 Ala., 241. The certificate of acknowledgment, though good on its face, is therefore by the evidence discredited and shown to be void.

The regulations for assignment of soldiers' additional rights (Circular, July 11, 1899, p. 31), require that:

An assignee of an uncertified right desiring to make an additional entry under this section must present his application, as the assignee of the soldier, for a specific tract of land, to the register and receiver at the local office in whose jurisdiction the land lies, accompanying the same by a complete assignment, duly executed and acknowledged, as prescribed respecting the assignment of bounty land warrants.

The assignment of bounty land warrants is required to be acknowledged. (Circular, February 18, 1896, 27 L. D., 219.) There is no statute requiring such acknowledgment. The statute simply gives the right, and, that right being given without restriction, is held by the court to be, like any other unrestricted right of property, assignable. Webster. Luther (163 U. S., 331). As the statute fixes no procedure, or form, by which the assignment shall be evidenced, it is within the powers of the land department to fix reasonable regulations for guidance of local officers as to what shall be recognized by them as sufficient evidence of such assignment. Such regulations are intended to avoid confusion and to facilitate their transaction of business. Your office properly held that:

The purpose of these requirements is not to prescribe an only mode of executing valid assignments. Nothing more was intended by them than to provide for satisfactory evidence of an assignment prior to the allowance of an additional entry by the assignee.

The regulation is no more than a rule of evidence for guidance of local and subordinate officers, and is not a rule of law fixing what acts are

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essential to a valid assignment of the right, preventing your office from recognition of the validity of an assignment otherwise satisfactorily proved.

The additional right under section 2306 of the Revised Statutes, until fixed by location upon a particular tract of land, is a right merely, and not an interest in land. As to matters of form, or what constitutes an assignment of the interest, the law makes no provision. A writing of some kind, satisfactorily proven, would seem to be necessary, as the right is one that the assignor could not himself exercise except in writing. The Department, following Webster . Luther, e. supra, has held that a power of attorney, coupled with an interest, is effective as an assignment.

The fact that Cowart voluntarily delivered to Fuller an assignment actually signed by him is satisfactorily proved. That no payment was made at the time did not invalidate it, nor does it appear that he ever demanded pay from Fuller. The agreed consideration was eighty dollars, and the evidence tends to show Fuller was not to make payment until the right had been recognized by the land department. The delivery of the assignment without payment in hand was of itself an extension of credit, and, if no fixed time for payment was agreed upon, such credit would continue and default of the purchaser could not be charged, or rescission of the assignment be made, until demand for payment. Without any such demand, he made a later assignment to Altenberg. Under such facts, the assignment prior in time must be held valid.

Fuller had acted promptly in endeavoring to obtain recognition of the right by the land department, as the assignment made August 31, was applied to be located September 17th the same year. There could, therefore, be no ground for rescission by Cowart because of delay. But irrespective of that fact, having given an assignment of his right, he could not make another without any act of rescission, warning, or notice to Fuller that it was, or was attempted to be, vacated and recalled.

Your office decision is affirmed.

ABANDONED MILITARY RESERVATION-HOMESTEAD APPLICATION.

ALLEN H. Cox (ON RE-REVIEW).

The departmental order of June 13, 1899, did not contemplate the restoration of the lands in the Fort Hays abandone military reservation to entry, but only to settlement; hence no legal claim attached by the tender of an application to enter said lands while such order remained in force or by an appeal from its rejection.

Departmental decisions of June 26, 1900, 30 L. D., 90, and January 30, 1901, 30 L. D., 468, recalled and vacated.