entryman to make such relinquishment, it ought in equity and good conscience be allowed him.

No mala fides existed in the inception, or yet in the prosecution of the entry after it was made. The performance was such as entitled the entryman to hold half the land; he might originally have made his entry for that quantity, and before trial or incurrence of costs by the contestant he offered to relinquish so much as was in excess of what he could rightly hold. He, therefore, may be, and should be, allowed to relinquish the excess of his entry and save thereby the improvements and expenditures he has in good faith made.

The departmental decision of May 6, 1901, is therefore recalled and vacated, your office decision and the finding and recommendation of the local office are reversed, the relinquishment for the south half of said entry will be noted, and the remainder of said entry held intact.

MINING CLAIM-APPLICATION FOR PATENT-CONFLICT.

THE WANDA GOLD MINING CO. 2. THE E. F. C. MINING AND MILLING Co.

An application for mineral patent which includes ground embraced in a prior or pending application for patent should not be received as to the ground in conflict; but where such an application has been received, and proceedings had thereon, and an adverse claim has been filed and suit brought upon it in a court of competent jurisdiction, the application will not be rejected and the parties required to begin proceedings anew, but the adverse suit will be recognized as a stay of proceedings on the application for patent until the suit shall have been finally determined, after which the application will be adjudicated in accordance with that determination.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) November 26, 1901. (A. B. P.)

September 25, 1900, the application, No. 2237, for patent to the Black Crow lode mining claim, survey No. 11,530, Pueblo, Colorado, land district, was declared finally rejected and canceled of record in your office, pursuant to departmental decision of August 7, 1901 (not reported), in the case of J. J. Miller et al. . Thomas Gardner et al. The reason for such rejection was, that the applicants, Gardner et al., had not expended, within the time provided by the statute (Sec. 2325, R. S.), $500 in labor or improvements for the development of the claim.

Notice by your office of the final action in that case did not reach the local office until September 28, 1900. In the meantime, September 21, 1900, The E. F. C. Mining and Milling Company (hereinafter called The E. F. C. company) presented at the local office an application for patent to the Rittenhouse, E. F. C., Alva, and W. E. S. lode mining

claims, survey No. 10,456, each of which claims as applied for, except the W. E. S., embraced ground included in said application, No. 2237, for the Black Crow claim; and September 26, 1900, the Wanda Gold Mining Company (hereinafter called the Wanda company), theretofore one of the co-applicants with said Gardner but now claiming to be sole owner of the Black Crow location, presented a new application for patent to that claim, embracing substantially the same ground included in application No. 2237. Notwithstanding the local office was yet without advice of final action in the matter of said application, No. 2237, for the Black Crow claim, and that such application was therefore still a matter of record in that office, the said applications of September 21 and 26, 1900, were received by the local office on those dates, respectively.

The local office subsequently decided that as the application of The E. F. C. company was first received it was entitled to precedence, and the same was accordingly formally placed of record October 17, 1900. Notice thereof by publication and posting was begun October 20, 1900. On the former of these dates the notice previously submitted by the Wanda company with its application was returned by the local office, and the company was required to exclude from its application for patent the ground in conflict between the Black Crow and the Rittenhouse, E. F. C., and Alva claims. From the action of the local office adverse to the new application for patent to the Black Crow claim the Wanda company appealed, and also in accordance with the suggestion of the local office, filed an adverse claim against The E. F. C. company's application as to the Rittenhouse, E. F. C., and Alva claims. Suit was commenced on the adverse to determine the right of possession to the ground in controversy. The suit is apparently still

pending.

February 11, 1901, your office, upon consideration of the appeal of the Wanda company, held that neither company's application for patent could be recognized as valid for any part of the ground formerly included in the application, No. 2237, of Gardner et al. The E. F. C. company's application was accordingly held for rejection as to all the ground in controversy and the application of the Wanda company was held for rejection in toto. From that decision the Wanda company appealed. The E. F. C. company subsequently filed a motion for review, but the same was not considered by your office, because of the appeal previously taken by the Wanda company. Under the circumstances, the motion for review will be here considered as an appeal by The E. F. C. company.

The receipt of the applications of The E. F. C. and Wanda companies, September 21 and 26, 1900, respectively, and the subsequent action of the local officers, whereby all the rights of precedence were accorded to the former and the burdens of subordination to the latter,

amounted to entertaining and giving full recognition to new or junior applications for patent when the land was, at the time of their presentation, embraced in an existing application which was still intact upon the records of the local office.

That action was clearly contrary to the spirit and intent, if not the letter, of the Mining Regulations in force at the time (Par. 49, 25 L. D., 577, and 28 L. D., 602; Aspen Mountain Tunnel Lode No. 1, 26 L. D., 81) and still in force (Par. 44 of Regulations approved July 26, 1901, 31 L. D., ), wherein it is declared:

Before receiving and filing a mineral application for patent, local officers will be particular to see that it includes no land which is embraced in a prior or pending application for patent or entry, or for any lands embraced in a railroad selection, or for which publication is pending or has been made by any other claimants, and if, in their opinion, after investigation, it should appear that a mineral application should not, for these or other reasons, be accepted and filed, they should formally. reject the same, giving the reasons therefor, and allow the applicant thirty days for appeal to this office under the Rules of Practice.

The applications in question, when offered for filing, should not have been received by the local officers for any ground embraced in the prior application No. 2237, then still intact upon their records, but should have been promptly rejected as to such ground. The chief purpose and object of the regulations on the subject are to secure the orderly disposal of applications for patent to mining claims and thereby to prevent unnecessary complications. A careful observance of the regulations by the local officers should be insisted upon.

It is not believed that the best results would be accomplished in this case, however, by now rejecting The E. F. C. company's application for patent and requiring the parties to retrace their steps and begin proceedings anew. Though the application was, to the extent stated, irregularly received at the time it was offered, proceedings have been had upon it by the publication and posting of notice, an adverse claim has been filed by the Wanda company wherein possessory title to the ground with respect to which the irregularity arose is asserted, and suit on the adverse has been brought and is now pending in the courts. No reason is apparent why the rights of the conflicting or adverse claimants to the ground in controversy may not be fully determined in that suit, and, it is believed, with as nearly an equal opportunity to each of the contending parties as would he secured if new patent proceedings were required and a new suit thus made necessary.

The decision appealed from is accordingly reversed, with direction that the Wanda company's adverse suit be recognized as a stay of proceedings in the case until said suit shall have been finally determined. The E. F. C. application will then be adjudicated in accordance with that determination.

The Wanda company's application will stand rejected unless the

company should exclude therefrom all conflict with the Rittenhouse, E. F. C., and Alva claims, in which event, if no other objection shall appear, the application may be accepted and proceedings had thereon as in other cases.

APPLICATION TO PURCHASE-NON-MINERAL AND NON-PROSECUTION AFFIDAVIT-SECTION 2, ACT OF JUNE 15, 1880.

SIERRA LUMBER CO.

An application to purchase under section 2 of the act of June 15, 1880, will not be allowed in the absence of an affidavit showing the non-mineral character of the land applied for and that no prosecution or proceeding has been had against the applicant on account of any trespass committed or material taken from any of the public lands subsequent to March 1, 1879.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) November 26, 1901. (J. R. W.)

The Sierra Lumber Company appealed from your office decision of April 20, 1901, requiring additional proof upon its application, as transferee of Harriett J. Shipley, to purchase, under section 2 of the act of June 15, 1880 (21 Stat., 237), the S. SW. 1, Sec. 25, T. 28 N., R. 4 E., M. D. M., Redding, California.

October 18, 1875, Harriett J. Shipley, as widow of John H. Shipley, made entry for the tract as additional to her original entry for the SE. SW. and SW. SE. 4, Sec. 32, T. 22, R. 29, made at Springfield, Missouri, October 29, 1874, which additional entry was canceled, June 20, 1877, for the reason that the alleged military service of John H. Shipley, in Co. C, 15th Mo. Cav. Vol., could not be verified. In the meantime, November 24, 1875, Mrs. Shipley, by deed in due form, conveyed said land to Alvinza Hayward, who by deed, September 20, 1877, conveyed for value to the applicant. June 2, 1900, the Sierra Lumber Company applied to enter the land. Your office decision required of the applicant

an affidavit showing the non-mineral character of the land applied for, and that no prosecution or proceeding has been had against said transferee, its employees, or agents, on account of any trespass committed or materials taken from any of the public lands subsequent to March 1, 1879.

It is assigned for error that a non-mineral affidavit was in fact filed. with the application; that no non-mineral affidavit is necessary; and that no non-prosecution affidavit is requisite because the fourth section of the act applies only to the first section and not to entries under the second section.

The claim that a non-mineral affidavit was in fact filed seems to be without foundation in fact. No such affidavit appears in the files, except that made October, 1875.

That the fourth section of the act applies to the entire act is the express declaration of the act itself. Mineral lands are expressly excepted from its operation, and being excepted a non-mineral affidavit is required as in cases of other entries limited to non-mineral lands. The fourth section contains two distinct clauses. The first relates to the character of the land applied for, and excepts mineral land from its operation; the second clause relates to persons, and provides that:

No person who shall be prosecuted for or proceeded against on account of any trespass committed or material taken from any of the public lands, after March first, eighteen hundred and seventy-nine, shall be entitled to the benefit thereof.

So far as any provisions of the act relate to persons this provision must be held to be as applicable as is the first clause to the character of the land. The second clause can not be limited in operation to the first section without also so limiting the first clause. Such limited operation might have been given by making the fourth section a proviso upon the first, and changing the word act to section. But as Congress expressly says that "this act" shall not apply to mineral lands, nor shall certain persons have the benefit "thereof."—"thereof” referring to the act-no other construction of this provision is possible than that given by your office

that Congress, while granting immunity for this class of violations of the land laws committed prior to March 1, 1879, intended to deprive such persons as should in the future persist in violating the law from deriving the benefit of the act.

Your office decision is affirmed.

OKLAHOMA LAND-TOWNSITE-APPLICATION TO COMMUTE.

ARTHUR Y. BOSWELL.

The general provisions of the town-site laws control in the allowance of town-site entries upon the lands ceded by the Kiowa, Comanche and Apache Indians; and the special provision, authorizing the commutation of homestead entries for town-site purposes, contained in the second proviso of section 22 of the act of May 2, 1890, is not applicable to entries made upon said lands.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) November 26, 1901. (J. H. F.)

The Department is in receipt of your office letter of November 12, 1901, transmitting for its consideration a petition, and accompanying plat, filed by Arthur Y. Boswell, wherein he prays that he may be allowed to commute, for townsite purposes, part of his homestead entry, No. 1880, made August 24, 1901, for the NE. 4. Sec. 31, T. 1 N., R. 17 W., I. M., in the Lawton land district, Oklahoma.

Boswell's petition and the accompanying plat were originally filed