age.

and one hundred and sixty acres, respectively, as officially surveyed and platted-are represented as being quite irregular in form and acreage, and to contain, respectively, an excess over the regular acreThe NW. of the NE. is described in the said diagram as lot 2 and represented to contain an area of 44.53 acres, after deducting therefrom several acres embraced in said survey No. 11624; the SW. of the NE. is described, likewise, as lots 7 and 8 and represented to contain 36.15 acres exclusive of nearly the whole of the said Granite Mountain claim; and the SE.4 of the NE. as lots 9 and 20, containing 25.22 acres exclusive of the E. of the E. thereof, and the conflict with the said Bluff claim comprising about half the area of that claim. Considering the situation disclosed by the record, your office, by decision of May 9, 1901, required the claimant, within sixty days from notice, to apply to the surveyor-general for a survey of the Mary Darling claim, on the ground that the land embraced therein "consists of irregular tracts in said section, and the same are not capable of description in a patent with such mathematical accuracy as should be contained in such an instrument," citing the case of Holmes Placer (26 L. D., 650). The claimant thereupon, pointing out the inapplicability of the Holmes Placer case to this case, requested that the description of the land be changed in the final certificate to conform to that given in the segregation diagram and that patent issue thereon accordingly. The request was denied by decision of your office, dated July 3, 1901, and the requirement of the previous decision was adhered to. From these decisions claimant has appealed to the Department.

Your office properly declined to change the description in the said final certificate to conform to the description of the land as given in the said segregation diagram. Such diagram and the lottings of the land shown thereon are not made from an official survey of the lotted land, but are apparently based upon data reported in, or in connection with, the surveys of mining claims by deputy mineral surveyors. As was very pertinently said in the said decision of your office, dated July 3, 1901

The danger of accepting such a segregation diagram as the basis for the issuance of patent on the Mary Darling placer, finds an illustration in the segregation diagram itself when it is compared with another purported segregation survey diagram of the same section, which was certified by the Surveyor-General on January 15, 1901, and which came to this office, with his letter of the same date. Said last mentioned segregation survey, while dividing the NE. of Sec. 35 into the same numbered lots as that of the segregation of March 14, 1901 (and except as to lot 1, for the same reasons), gives the area of lot 2 as 43.96 acres, of lot 7 as 9.67 acres, of lot 8 as 26.90 acres, of lot 9 as 25.27 acres, and of lot 20 as 1.82 acres, each of said lots so shown on the one diagram it will be seen differing in area from that shown on the other, yet each of the said diagrams is certified to be correct by the Surveyor-General.

The confusion and conflicts certain to arise as to the loci of lands if patents should issue thereto from time to time describing the different

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tracts, some according to data taken from one such diagram and some according to data taken from another, need not be dwelt upon.

The land as already stated was surveyed in 1878, and the said NE.‡ was returned by the surveyor-general as containing one hundred and sixty acres and each quarter thereof as containing forty acres, and there has been no other official survey thereof, except as to the portions embraced in surveyed mining claims. The general law governing the survey and subdivisions of the public lands makes the same and the quantity of land as stated therein, when duly returned and approved, conclusive for the purposes of the disposal of the lands. See sections 2395 and 2396, Revised Statutes; and Mason . Cromwell, 26 L. D., 369, 371. The mining laws make special provision for the survey of lode mining claims, and for placer claims-not on surveyed lands or which cannot be conformed to legal subdivisions, and the return of the surveyor-general as to the quantity of land embraced therein is to be taken, likewise, as conclusive (sections 2325, 2327, 2329, 2330, and 2331, Revised Statutes). The said placer claim appearing to have been duly located in March, 1900, according to the proper legal subdivisions of the land as surveyed in 1878 under the general law, such survey and the surveys of the Granite Mountain and Bluff lode claims are therefore to be taken together and to be followed in determining both the proper description and the acreage of the land embraced in Frizzell's entry. No part of survey No. 11624, the Agnes claim, being excluded from Frizzell's proceedings for patent, it is not necessary to consider that survey.

It is true the plats and field notes of the surveys of the Granite Mountain and Bluff lode claims on file in your office were made for private parties other than the Mary Darling claimant, and are filed there as parts of the record in those cases, respectively. They are none the less official in character, however, because so made and filed, and are now part of the permanent official records of your office, and proper to be resorted to upon any question whereon they have bearing arising in any case before the land department.

The description of the land embraced in Frizzell's entry, as herein first above given from the final certificate, being expressed in terms of the general public survey and the surveys of the excluded mining claims, it is believed that such description is sufficiently accurate therein; and that said surveys, taken together, furnish all the data necessary to enable your office to correctly compute the area of the land, and also to prepare therefrom an accurate description of the land to be incorporated in a patent.

The said decisions of your office are modified accordingly; and so much of the decision of the Department in case of Albert B. Knight et al. (30 L. D., 227) as is in conflict with the view herein expressed is hereby overruled.

REGULATIONS OF AUGUST 5, 1901, CONCERNING OPENING OF WICHITA AND KIOWA, COMANCHE AND APACHE CEDED LANDS, AMENDED.

REGULATIONS.

Acting Secretary Ryan to W. A. Richards, Assistant Commissioner of the General Land Office, El Reno, Oklahoma Territory, August 14, 1901.

Referring to telegraphic regulations of the fifth instant, the following additional rule is prescribed, the same to be numbered four and a half:

Applications to contest entries allowed for these lands filed during the sixty days from date of opening will also be immediately forwarded to the General Land Office, where they will be at once carefully examined and forwarded to the Secretary of the Interior with proper recommendation when the matter will be promptly decided.

PRACTICE-CONTINUANCE-DEPOSITIONS-INTERROGATORIES.

WESTERVELT. JOHNSON.

It is not essential that the interrogatories required by Rule 24 of Practice be filed with an application for continuance and order to take depositions, made under Rule 21; it is sufficient that the interrogatories be prepared with reasonable diligence.

Acting Secretary Ryan to the Commissioner of the General Land (S. V. P.) Office, August 14, 1901.

(J. R. W.) Caroline E. Johnson appealed from your office decision of January 17, 1901, holding for cancellation her homestead entry made April 12, 1898, for the SW. of Sec. 28, T. 133 N., R. 52 W., Fargo, North

Dakota.

October 21, 1899, Elbert Westervelt initiated contest against the entry, alleging failure to establish residence or to build on said tract, and abandonment for more than six months prior thereto, not due to military or naval service for the United States.

November 3, notice was personally served on the entrywoman, in Richland county, North Dakota, for hearing December 11, 1899. On that day plaintiff appeared with his witnesses and defendant by attorney, who filed affidavits of defendant and others for a continuance for thirty days because of sickness of material witnesses whose attendance could not then be obtained, and the hearing was continued to January 15, 1900.

January 15, 1900, plaintiff with witnesses and counsel attended, defendant appeared by counsel and asked a continuance for sixty days, upon the affidavit of counsel and her two sons that she had long been

in ill health, and, December, 1899, was obliged to go to Belleville, Ohio, to a specialist for treatment, intending to return for the hearing. January 4, 1900, counsel wrote her to send the affidavit of her physician, if unable to return, but his letter was returned unclaimed, and he learned too late to communicate before the hearing that she had become more afflicted and had gone to her son's home in Kansas City, Missouri. Since coming to Fargo he had learned that her sickness becoming more aggravated she had gone to her son's home at Mansfield, Texas; that he could not safely go to trial in her absence, and if the hearing were continued sixty days he believed it possible to procure her attendance. If present she would testify that:

She in good faith established her residence upon the tract herein involved, and that she never abandoned the said tract since the date of establishing her residence, and that she has made valuable improvements upon the tract; that her absence was not due to her act, procurement, or consent, but entirely to her physical condition.

The motion was overruled, and contestee moved for a sixty days' continuance and order to take deposition of the contestee under Rule 21 of Practice, which was denied; counsel excepted, and the trial proceeded. This ruling was assigned for error on appeal to your office and is so assigned on appeal to the Department. Your office decision appears to hold that such motion was properly overruled, on the ground that "no interrogatories were served or filed with the application." This is assigned for error by counsel, who insist that Rule 24 for filing interrogatories does not apply "as a condition sine qua non" to motions for continuance under Rule 21, and that mere failure to file interrogatories with the motion does not justify denial of a motion for continuance under that rule. In this respect, in opinion of the Department, counsel's contention is correct.

Rule 21 is intended as a restriction upon repeated applications for continuance on the ground of absence of material witnesses, as an evidence of good faith, and to compel the taking of testimony by deposition, if, after one adjournment, a witness is absent. Such absence is often a surprise to the party and counsel. It is too severe a rule to require counsel after one continuance to be prepared with interrogatories for taking depositions of every intended witness, so as to comply with Rule 24, for the emergency liable to arise by absence of a material witness. If the application is meritorious under Rule 21, the filing of interrogatories cannot be held an essential condition. It is sufficient that interrogatories, in such case, be prepared with reasonable diligence and the taking out of commission to take depositions under Rules 23 and 24 be thereafter proceeded with.

The local officers appear to have denied the application upon its merits, and not on the ground that interrogatories were not filed. The application was without merit. It did not negative lack of other known witnesses by whom the same facts could be proved, nor that

the application was not for delay merely; nor did it state facts to which contestee would testify, but mere conclusions. It was therefore properly denied on its merits.

Contestee's two married daughters lived near to the land and her two sons on a farm owned by her at a few miles distance. The facts on which she bases her claim of residence were fully proven by witnesses produced in her behalf. She had been on the tract about a week in June, also September 5th and 6th, and one night November 2, 1898, two nights June [2 and] 3, and briefly September, 1899. Except these visits, there is no evidence of her being there. She resided with her children, and most of the time upon her own farm carried on by her sons. There was a barn on her claim, and against the side of it was a lean-to or shanty, not habitable except in moderate weather. The finding of the local office and decision of your office that defendant had never established residence on her claim is the only conclusion that could be sustained upon the evidence. The evidence upon her claim of physical inability to live on the land is insufficient to excuse her failure to establish residence.

Your office decision as to the merits is affirmed.

MINING CLAIM-EXPENDITURE.

CLEVELAND ET AL. . EUREKA No. 1 GOLD MINING AND MILLING

Co.

Questions as to the making of annual expenditure upon mining claims and as to relocations alleged to have been made by reason of failure to make such expenditure or to duly resume work, are not for determination by the land department but by the courts.

Where an applicant, after the close of the period of publication of notice, delays making entry until beyond the end of the calendar year, his laches, in the presence of the alleged relocation of the claim, are fatal to the entry.

Acting Secretary Ryan to the Commissioner of the General Land Office, (S. V. P.) (E. B. Jr.)

August 14, 1901.

February 17, 1900, the Eureka No. 1 Gold Mining and Milling Company filed its application for patent (No. 110, Colville Series) to the Eureka lode mining claim, survey No. 503, Spokane Falls, Washington, land district. No adverse claim was filed during the period of publication of notice of the application, which period expired April 24, 1900. January 3, 1901, the company made mineral entry No. 109 for the claim.

January 4, 1901, E. R. Cleveland filed in the local office a "protest and adverse claim" against the issue of patent to said company for said claim, alleging that the company had failed to perform the annual assessment work thereon for the year 1900, and that on the first day of