should be passed to patent, unless it is shown that the same was improperly allowed.

The hearing ordered by your office was based, manifestly, upon the answer of the Northern Pacific Railway Company above referred to; but that answer does not allege that at the time the entry was made the land embraced therein was not of known mineral character; nor does it appear, from any of the papers submitted, that said land was not of known mineral character at that time; or that the entry, for any reason, was improperly allowed. It was therefore error on the part of your office to treat the matters stated in the entry papers as controverted and to order a hearing thereon.

As to that part of your office decision denying the request of the railway company to submit the classification as made by the commissioners to the Secretary of the Interior, the same is affirmed; and as to that part ordering a hearing to determine the character of the land included in the entry, the same is reversed.

FOREST RESERVE-LIEU SELECTION-ACT OF JUNE 4, 1897.

C. W. CLARKE.

It is essential to a lieu selection under the act of June 4, 1897, that the land intended as a base for the selection should be specifically designated.

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

February 27, 1903.

C. W. Clarke appealed from your office decision of September 17, 1902, rejecting his application under the act of June 4, 1897 (30 Stat., 36), to select the NE. NW. 4, Sec. 8, T. 23 N., R. 12 E., M. D. M., Susanville, California, in lieu of "forty (40) acres in the northwest quarter of section sixteen (16),” T. 20 S., R. 33 E., M. D. M., in the Sierra forest reserve, California.

July 23, 1902, Clarke, by mail, presented his application and accompanying papers at the local office, which were rejected, because "there was no evidence whatever accompanying said application showing any title or ownership to the base land." Clarke appealed to your office, and your office decision affirmed the rejection of the application because

there was no proper description in the application of the land surrendered as a basis for his selection. There are four 40 acre tracts in the NW. of Sec. 16, T. 20 S., R. 33 E., M. D. M., and the application should state which 40 acres it is desired to surrender as a basis for this selection.

Your office decision also held that the application should be rejected upon the ground that at the date of the application the base was being used under another application then pending, No. 2779, your office

series. This part of your office decision is strenuously assailed in the brief of appellant by an extended review of former selections based upon all or part of the northwest quarter of section 16, township 20 south, range 33 east, M. D. M.

A lieu selection under the act of June 4, 1897, is essentially an exchange, and it is essential to a selection under the act that the base for the selection should be specifically indicated. A right to make selection arises only by relinquishment to the United States of good title to a tract of land within a forest reservation, and if such right has arisen and exists, it is essential to good administration and to avoid confusion of public business that the government should know as to what land so relinquished the right to make such selection is satisfied. In school indemnity selections it is required that they shallbe so presented that the tract selected may be connected with a specific section or subdivision of a section as the basis of the selection in order that the validity of the selection, with reference to its basis, may be determined with directness and without complication.

Circular, 4 L. D., 79; State of California, 30 L. D., 484, 486; Instructions, October 29, 1902, 31 L. D., 438, 439.

Every reason for such requirement in respect to school indemnity selections applies with equal force to selections under the act of June 4, 1897. Clarke's application was therefore not such as was entitled to be received. This renders it unnecessary to consider any other matter presented by the brief upon appeal, as being immaterial upon the record as presented.

Your office decision was without error.

It is insisted, however, in the brief upon appeal, that it was error in your office decision not to have called upon the selector "to designate the particular 40 acres referred to in his application" as the base therefor, and an extended review of former selections, based upon all or some part of the northwest quarter of section 16, township 20 south, range 33 east, M. D. M., is therein made. This is properly matter for review by your office where the records lie which are referred to and are necessary to be examined.

In the absence of any intervening claim for the land applied for a selector may complete his selection, and in this case it would seem entirely proper to allow Clarke to perfect his selection by a definite assignment of base therefor, his rights being determined as of the date his application is so completed. The appeal herein is dismissed and the case is remanded to your office. You will give Clarke notice that he will be allowed thirty days from receipt thereof to make and present to your office a formal definite assignment of base in support of such selection. If he shall make such assignment you will, upon receipt thereof, readjudicate the case as then presented, but in the event of his failure to make such assignment the decision of your office of September 17, 1902, will stand affirmed.

RAILROAD GRANT-SELECTIONS UNDER ACT OF MARCH 2, 1899.

DAVENPORT v. NORTHERN PACIFIC Rr. Co.

When the field notes and surveyor's return make no notation whatever of minerals in the land being surveyed, such lands are considered and treated as given a non-mineral classification by the surveyor.

Lands "classified as non-mineral" at the time of the government survey, are of the class of lands subject to selection under the act of March 2, 1899, and the character of lands so classified and selected will not be investigated on a protest presented after the survey and selection and alleging the present mineral character of the lands.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) February 28, 1903. (F. W. C.)

By act of March 2, 1899 (30 Stat., 993), certain described lands in the State of Washington, theretofore included in the Pacific forest reserve, were set aside as a public park, to be known as the Mount Ranier National Park. The provisions of sections 3 and 4 of the act are as follows:

SEC. 3. That upon execution and filing with the Secretary of the Interior, by the Northern Pacific Railroad Company, of proper deed releasing and conveying to the United States the lands in the reservation hereby created, also the lands in the Pacific Forest Reserve which have been heretofore granted by the United States to said company, whether surveyed or unsurveyed, and which lie opposite said company's constructed road, said company is hereby authorized to select an equal quantity of nonmineral public lands, so classified as nonmineral at the time of actual government survey, which has been or shall be made, of the United States not reserved and to which no adverse right or claim shall have attached or have been initiated at the time of the making of such selection, lying within any State into or through which the railroad of said Northern Pacific Railroad Company runs, to the extent of the lands so relinquished and released to the United States: Provided, That any settlers on lands in said national park may relinquish their rights thereto and take other public lands in lieu thereof, to the same extent and under the same limitations and conditions as are provided by law for forest reserves and national parks.

SEC. 4. That upon the filing by the said railroad company at the local land office of the land district in which any tract of land selected and the payment of the fees prescribed by law in analogous cases, and the approval of the Secretary of the Interior, he shall cause to be executed, in due form of law, and deliver to said company, a patent of the United States conveying to it the lands so selected. In case the tract so selected shall at the time of selection be unsurveyed, the list filed by the company at the local land office shall describe such tract in such manner as to designate the same with a reasonable degree of certainty; and within the period of three months after the lands including such tract shall have been surveyed and the plats thereof filed by said local land office, a new selection list shall be filed by said company, describing such tract according to such survey; and in case such tract, as originally selected and described in the list filed in the local land office, shall not precisely conform with the lines of the official survey, the said company shall be permitted to describe such tract anew, so as to secure such conformity.

This act, as will be observed, is a special one and is in some respects essentially different from the general legislation upon the subject

embraced in the acts of June 4, 1897 (30 Stat., 11, 36), and June 6, 1900 (31 Stat., 588, 614).

June 6, 1900, the Northern Pacific Railway Company, successor in interest to the Northern Pacific Railroad Company (hereinafter called the company), filed, under said section 3, its selection list, No. 91, for the SE. of Sec. 19, T. 8 S., R. 21 E., Bozeman, Montana, land district, in lieu of what will be, when surveyed, the SE. of Sec. 3, T. 13 N., R. 10 E., W. M. Presumably the fees prescribed by section 4 of the act were paid by the company at the time of the filing of said list, as there is nothing in the record to the contrary, but this should be inquired into by your office.

The township in which the selected tract is situated was surveyed in the field in August, 1888, and the survey was approved December 28, 1888. The tract forming the basis of the selection is within the primary limits of the Northern Pacific Railroad Company's grant and also within the boundaries of said Pacific forest reserve, opposite said company's constructed road. Said tract and all other lands, the release and conveyance of which are provided for in section 3 of the act, were released and conveyed by the company to the United States by deed dated July 25, 1899, and accepted by this Department July 26, 1899. April 4, 1901, a coal declaratory statement was offered by W. W. Davenport under section 2348 of the Revised Statutes, for the tract selected, and was rejected by the local officers because of such selection. April 30, 1901, Davenport appealed, and, May 1, 1901, filed a protest against the selection, alleging that the land embraced therein is chiefly valuable for its coal deposits.

October 29, 1901, your office, upon Davenport's appeal, affirmed the action of the local officers in rejecting his declaratory statement and held the selection for rejection, upon the ground that the selected land had been classified as mineral in character by the government survey. The case is before the Department on the appeal of the company. The company contends (1) that the government survey classifies the selected land as non-mineral in character, and (2) that such classification absolutely fixed the character of the land as non-mineral, in so far as concerns the right of the company to select the same and have the selection approved. This contention is based upon the theory that the act was intended to provide for an exchange of lands, and that the classification mentioned in the act was intended to operate as a rule of evidence and, as to the lands selected thereunder, to supersede the usual and ordinary methods of ascertaining the character of public lands by the land department.

The first question presented by the record for determination is: Was the selected land "classified as non-mineral" by the return of the surveyor-general at the time of the government survey?

The survey of said township 8 does not in terms designate any part

thereof either as mineral or as non-mineral, except as indicated in the following extract from the field notes of survey found in the return: This township is largely broken and rough lands. The northern part contains some fine coal land lying in the basin at or near the head of Bear creek. On Bear creek are several settlers, as also in the agricultural basin on Grove creek, where some lands are irrigated and good crops of wheat and oats were grown this season. No mineral except coal has been discovered in this township. In the SE. of Sec. 8 is a coal mine with a 51⁄2 foot vein of good coal, which dips to the SW. 49° 30′, on which a drift has been run 150 ft.; also in the NE. of Sec. 7 is a 6 ft. vein of the same quality which dips 8° to the SW. on which is a drift of 100 ft.

Your office decision holding the selected land to have been classified as mineral, is based entirely upon the language employed in this extract from the surveyor's return, but in the opinion of the Department this ruling is not justified by the facts stated or the language employed in the surveyor's return. The land in question at its nearest point is one mile and a half distant from the portion of section 8 in which coal was reported, and two miles distant from the portion of section 7 reported as containing coal. It is south and not north of the line separating the south half of the section from the north half, and is about three miles distant from the basin at or near the head of Bear Creek, as the same is shown upon the official plat of the township and as it is described in the field notes. The land in question is also by the field notes shown to be separated by ridges of considerable height from the lands where coal was reported. Upon the whole it seems very clear that the SE. of section 19 was not given a mineral classification at the time of the actual government survey. Nor does the phrase "so classified as non-mineral at the time of the actual government survey," as the same is employed in section 3, refer only to lands which the survey affirmatively states or shows are non-mineral. It is the uniform custom in surveying public lands to make in the field notes and surveyor's return, notation of mines, out-croppings and evidences of valuable mineral deposits where found, and to say nothing upon the subject of minerals where no mines, out-croppings or evidences of valuable mineral deposits are found. When, therefore, the field notes and surveyor's return make no notation whatever of minerals in the land being surveyed, such lands are considered and treated as given a non-mineral classification by the surveyor. Bedal el al. v. St. Paul, Minneapolis and Manitoba Railway Co. (29 L. D., 254, 255). The land in question was, therefore, classified as nonmineral by the government survey.

So far as shown, therefore, this land was properly subject to selection on June 6, 1900, under the act of March 2, 1899.

In said protest it is alleged that coal declaratory statement was offered for this land on April 4, 1901, and that the land contains large and valuable deposits of coal, which, when mined, will be of a merchantable quality, but the filing of a coal declaratory statement nearly