On the same day R. P. Russell filed a protest against said application, alleging that there had been no valid discovery of mineral upon the Minnie Belle location; that five hundred dollars' worth of labor had not been expended nor improvements made on the claim prior to the expiration of the period of publication; and that said Minnie Belle claim conflicts with the Marion lode claim owned by protestant. October 28, 1898, Russell filed a supplementary protest, alleging that the published and posted notice of the Minnie Belle application for patent was imperfect and insufficient, in that said notice referred to a location certificate of that claim other and different from the amended location certificate, upon which the official survey was based.

November 2, 1898, A. H. Cronkhite also filed a protest against the Minnie Belle application. This protest contained substantially the same allegations as those in Russell's protests, but in addition thereto it was alleged that the discovery shaft of the Minnie Belle claim had not been sunk to the depth of ten feet prior to location, as required by the laws of the State of Colorado.

A hearing was ordered by the local officers on these protests, and at the appointed time Russell and the Wilson Creek company appeared by their attorneys, but Cronkhite made default. A motion to dismiss Cronkhite's protest was sustained by the local officers, and afterwards testimony was submitted by Russell and the defendant company.

By decision of June 22, 1899, the local officers held that Russell had failed to establish his charges of non-compliance with law, and dismissed the protest.

On appeal, your office, by decision of December 14, 1899, affirmed the action of the local officers; whereupon Russell filed further appeal to the Department.

The testimony is conflicting as to the discovery of mineral upon the Minnie Belle claim, but this question need not now be considered. The certificate of the surveyor-general shows the improvements upon this claim prior to the expiration of the period of publication to be as follows:

This tunnel, the first nineteen feet of which constitute the discovery tunnel of the Little Effie Lode, Sur. No. 12383, The Wilson Creek Consolidated Mining & Milling Company, claimant, is run for the development of this claim and the Buena Vista No. 2 and Denver No. 2 lodes, both unsurveyed and also claimed by the claimant herein.

It appears that the Wilson Creek company owns several adjoining claims, the Little Effie, Minnie Belle, Buena Vista No. 2, and Denver No. 2. These claims lie on a hillside, the Little Effie being the lowest, and the Denver No. 2 being the highest. The tunnel in question was started on the Little Effie claim and extends thence into the Minnie Belle claim. After this tunnel had been started, the Findley lode mining claim, conflicting with the Minnie Belle claim, was located. As shown on the plat, that portion of the tunnel lying within the exterior boundaries of the Minnie Belle claim is entirely within the conflict between the Minnie Belle and the Findley. Subsequently the Findley claimants applied for patent, claiming the entire conflict with the Minnie Belle, and the owner of the latter failed to adverse the Findley application during the period of publication. Having lost its rights to the area in conflict by the failure to adverse, the Wilson Creek company was obliged to exclude the conflict with the Findley when it filed its application at a later date for patent to the Minnie Belle. It thus appears that no portion of the tunnel in question lies within the area applied for by the Minnie Belle claimant. As now constructed the tunnel does not tend to the development of any part of the Minnie Belle claim included in the application for patent, nor would it benefit the Minnie Belle if it were extended along its course according to the original plan, as it would continue in excluded ground until it passed without the exterior limits of the Minnie Belle claim.

In regard to the thirty foot shaft, valued at $350, included in the surveyor-general's certificate, the testimony shows that it was not constructed by or at the expense of the Wilson Creek company, or its grantors, but was dug in the fall of 1892 as the discovery shaft of the conflicting Kentucky Bell lode mining claim, located by J. B. Bennett and Robert Ray. It appears that the Kentucky Bell location has been abandoned, and no work has been done thereon since the fall of 1892. Section 2325 of the Revised Statutes of the United States provides (in part) that:

The claimant at the time of filing this application, or at any time thereafter, within the sixty days of publication, shall file with the register a certificate of the United States surveyor general that five hundred dollars' worth of labor has been expended or improvements made upon the claim by himself or grantors.

It clearly appears that the thirty foot shaft was not constructed by the Wilson Creek company or its grantors, and the fact that the conflicting Kentucky Bell location has been abandoned since 1892 does not authorize the Wilson Creek company to include the discovery shaft of the Kentucky Bell in its list of improvements on the Minnie Belle.

Eliminating from the surveyor-general's certificate of improvements the tunnel and the thirty foot shaft, less than five hundred dollars worth of improvements are shown which can properly be credited to

the Minnie Belle claim as applied for. Entry can not be allowed on the present showing upon the application of the Wilson Creek company for patent to the Minnie Belle claim.

In view of this holding, it is unnecessary to consider the further question presented by the record as to the sufficiency of the published notice upon the application for patent.

Your office decision is hereby reversed.

POWELL. LANDER.

Motion for review of departmental decision of August 10, 1900, 30 L. D., 222, denied by Secretary Hitchcock, November 12, 1900.

REGULATIONS CONCERNING RIGHT OF WAY FOR CANALS, DITCHES, AND RESERVOIRS OVER THE PUBLIC LANDS AND RESERVATIONS.

CIRCULAR.

Sections 18, 19, 20, and 21 of the act of Congress approved March 3. 1891 (26 Stat., 1095), entitled “An act to repeal timber-culture laws, and for other purposes," grant the right of way through the public lands and reservations of the United States for the use of canals, ditches, and reservoirs heretofore or hereafter constructed by corporations, individuals, or associations of individuals upon the filing and approval of the papers and maps therein provided for. When the right of way is upon a reservation not within the jurisdiction of the Interior Department, the application must be filed in accordance with these regulations, and will be submitted to the department having jurisdiction. A map and field notes of the portion within such reservation must be submitted, in addition to the duplicates required herein. This map and field notes must conform to all the provisions of this circular, and the local officers will forward them to this office. The word adjacent, as used in section 18 of the act, in connection with the right to take material for construction from the public lands, is defined by the Department as including the tier of sections through which the right of way extends, and perhaps an additional tier of sections on either side (14 L. D., 117). The right extends only to construction, and no public timber or material may be taken or used for repair or improvements (14 L. D., 566). These decisions were rendered under the railroad right of way act, and are applied to this, as the words are the same in both.

The sections above noted read as follows:

SEC. 18. That the right of way through the public lands and reservations of the United States is hereby granted to any canal or ditch company formed for the purpose of irrigation and duly organized under the laws of any State or Territory,

which shall have filed, or may hereafter file, with the Secretary of the Interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals, and fifty feet on each side of the marginal limits thereof; also the right to take, from the public lands adjacent to the line of the canal or ditch, material, earth, and stone necessary for the construction of such canal or ditch: Provided, That no such right of way shall be so located as to interfere with the proper occupation by the Government of any such reservation, and all maps of location shall be subject to the approval of the Department of the Government having jurisdiction of such reservation, and the privilege herein granted shall not be construed to interefere with the control of water for irrigation and other purposes under authority of the respective States or Territories.

SEC. 19. That any canal or ditch company desiring to secure the benefits of this act shall, within twelve months after the location of ten miles of this canal, if the same be upon surveyed lands, and if upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land is located a map of its canal or ditch and reservoir; and upon the approval thereof by the Secretary of the Interior the same shall be noted upon the plats in said office, and thereafter all such lands over which such rights of way shall pass shall be disposed of subject to such right of way. Whenever any person or corporation, in the construction of any canal, ditch, or reservoir, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.

SEC. 20. That the provisions of this act shall apply to all canals, ditches, or reservoirs, heretofore or hereafter constructed, whether constructed by corporations, individuals, or association of individuals, on the filing of the certificates and maps herein provided for. If such ditch, canal, or reservoir, has been or shall be constructed by an individual or association of individuals, it shall be sufficient for such individual or association of individuals to file with the Secretary of the Interior, and with the register of the land office where said land is located, a map of the line of such canal, ditch, or reservoir, as in a case of a corporation, with the name of the individual owner or owners thereof, together with the articles of association, if any there be. Plats heretofore filed shall have the benefits of this act from the date of their filing, as though filed under it: Provided, That if any section of said canal, or ditch, shall not be completed within five years after the location of said section, the rights herein granted shall be forfeited as to any uncompleted section of said canal, ditch, or reservoir, to the extent that the same is not completed at the date of the forfeiture.

SEC. 21. That nothing in this act shall authorize such canal or ditch company to occupy such right of way except for the purpose of said canal or ditch, and then only so far as may be necessary for the construction, maintenance, and care of said canal or ditch.

The act approved May 11, 1898 (30 Stat., 404), entitled “An Act To amend an Act to permit the use of the right of way through public lands for tramroads, canals, and reservoirs, and for other purposes,” makes an important declaration in section 2 as to the purposes for which the rights of way under the act of 1891 may be used. The language of the act of 1898 is as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Act entitled "An Act to permit the use of the right of way through the public lands for tramroads, canals, and reservoirs, and for other

purposes," approved January twenty-first, eighteen hundred and ninety-five, be, and the same is hereby, amended by adding thereto the following:

"That the Secretary of the Interior be, and hereby is, authorized and empowered, under general regulations to be fixed by him, to permit the use of right of way upon the public lands of the United States, not within limits of any park, forest, military, or Indian reservations, for tramways, canals, or reservoirs, to the extent of the ground occupied by the water of the canals and reservoirs, and fifty feet on each side of the marginal limits thereof, or fifty feet on each side of the center line of the tramroad, by any citizen or association of citizens of the United States, for the purposes of furnishing water for domestic, public, and other beneficial uses.

"SEC. 2. That rights of way for ditches, canals, or reservoirs heretofore or hereafter approved under the provisions of sections eighteen, nineteen, twenty, and twenty-one of the Act entitled 'An Act to repeal timber-culture laws, and for other purposes,' approved March third, eighteen hundred and ninety-one, may be used for purposes of a public nature; and said rights of way may be used for purposes of water transportation, for domestic purposes, or for the development of power, as subsidiary to the main purpose of irrigation."

1. These acts are evidently designed to encourage the much-needed work of constructing ditches, canals, and reservoirs in the arid portion of the country by granting right of way over the public lands necessary to the maintenance and use of the same. The eighteenth section of the act of 1891 provides that

The privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories.

The control of the flow and use of the water is therefore, so far as this act is concerned, a matter exclusively under State or Territorial control, the matter of administration within the jurisdiction of this Department being limited to the approval of maps carrying the right of way over the public lands. In submitting maps for approval under this act, however, which in any wise appropriate natural sources of water supply, such as the damming of rivers or the appropriation of lakes, such maps should be accompanied by proof that the plans and purposes of the projectors have been regularly submitted and approved in accordance with the local laws or customs governing the use of water in the State or Territory in which the same is located. No general rule can be adopted in regard to this matter. Each case must rest upon the showing filed in support thereof.

2. The act is not in the nature of a grant of lands; it does not convey an estate in fee in the right of way. It is a right of use only, the title still remaining in the United States. All persons settling on a tract of public land, to part of which right of way has attached for a canal, ditch, or reservoir, take the same subject to such right of way, and at the full area of the subdivision entered, there being no authority to make deduction in such cases. If a settler has a valid claim to land existing at the date of the filing of the map of definite location, his right is superior, and he is entitled to such reasonable measure of