thing of any nature from said company. The only evidence in support of such claim is the statement of Taylor's agent Lessenger. Upon the facts found by your office and shown by the testimony, the holding of Taylor's filing for cancellation was abundantly justified.

Relative to Taylor's contention in appeal and argument that he should have been allowed to make private entry of the land under section 2347 R. S., notwithstanding his said filing, it may be proper-as it certainly is sufficient-to say in passing, (1) that he elected to proceed otherwise, as already indicated, (2) that he filed no application to make private entry thereof, and (3) that no such entry could have been legally allowed until the adverse filings of Walker and Beckwith were disposed of.

The rejection of the application to purchase and the proposed cancellation of Taylor's filing are accordingly affirmed.

MINING CLAIM-FINAL CERTIFICATE-TITLE.

J. C. BAKER FRACTION PLACER.

The final certificate of a mineral entry will not be allowed to embrace the name of one who fails to show that he owned an interest in the claim at the date of application, or that subsequently, and prior to entry, he acquired such interest from a legal applicant.

Secretary Smith to the Commissioner of the General Land Office, July

Eli C. Wood, Adam Aulbach and Lawrence O'Neil, who made Cœur d'Alene, Idaho, mineral entry No. 168, March 28, 1895, for the J. C. Baker Fraction placer claim, appeal from your office decision of October 5, 1895, requiring proof that Aulbach and O'Neil owned, each, an interest in the claim at date of application, or subsequently and prior to entry acquired such from a legal applicant, and proof of O'Neil's citizenship, and holding that in default of the proof required the names of Aulbach and O'Neil must be stricken from the final certificate of entry. The contention of the appeal, briefly stated, is that the abstract of title and a certain judgment on file furnish the required proof.

The abstract of title does not show that at date of filing application, December 29, 1894, or of entry, either of the parties in question had any interest in said claim. Aulbach's claim of title through one Mary C. Nason, as widow of C. C. Nason, can not be recognized, for the reason that it is not shown that Mary C. Nason, as alleged widow, or otherwise, had any interest in the claim. It is not shown that Mary C. Nason, who made certain conveyances of record to Aulbach, was the widow of C. C. Nason. Your office properly held that an agreement to convey, under certain conditions, by J. C. Baker, the locator of the claim, which agreement is set up as a connecting link to show

an interest in C. C. Nason, did not convey any interest. Two deeds, one dated October 14, 1893, and recorded the same day, from "Mary C. Nason, widow of C. C. Nason, deceased," and one dated and recorded December 26, 1894, from Mary C. Nason, both to said Aulbach, constitute the only evidence afforded by the said abstract of any conveyance of an interest in said claim to Aulbach prior to date of entry. It is unnecessary, in view of the prohibition in paragraph 93 of current Regulations under the mining laws, to consider the record of certain conveyances from parties not applicants for patent, made subsequent to the application.

The "certain judgment" hereinbefore referred to is apparently a judgment such as is indicated in section 2326 of the Revised Statutes, rendered June 26, 1890, in a suit by certain claimants of said claim. against the claimants of the Idaho Bar placer claim, by the district court in and for Shoshone county, Idaho. This judgment was in favor of the then J. C. Baker Fraction claimants, among whom were said O'Neil and "Mary C. Nason administratrix of Christopher Nason deceased." This judgment is of no avail so far as either Aulbach or O'Neil is concerned, before the land department, in view of the showing made by the abstract of title. Said abstract does not show, as already indicated in part, that any one authorized in the premises conveyed any interest of C. C. Nason or Christopher Nason in said lode claim to said Aulbach. Without setting forth the minutia of computation it is found that said abstract shows that by deed dated June 23, and recorded June 25, 1894, said O'Neil conveyed an undivided one eighth interest in the claim in question to Eli C. and James R. Wood, which was one seventy-second greater interest than he is shown to have at any time acquired. Said judgment does not show the amount of his interest. It is unnecessary in view of the foregoing to consider the question of O'Neil's qualification as to citizenship. Your office dicision in accordance herewith is affirmed.

MINING CLAIM-REINSTATEMENT-RELOCATION.

MCGOWAN ET AL. v. ALPS CONSOLIDATED MINING CO.

A mineral entry canceled without notice to the entryman must be reinstated irrespective of any intervening adverse claim.

The cancellation of a mineral entry does not in itself render the ground covered thereby subject to relocation.

Secretary Smith to the Commissioner of the General Land Office, July

The record in this case shows that The Alps Consolidated Mining Company, by G. L. Havens, Superintendent, on October 2, 1881, made application for patent for the Alps No. 2 lode mining claim, survey No. 1814-VOL 23—8

1953, Leadville, Colorado, land district. On December 19, 1882, the Alps Company abandoned that portion of its claim that conflicted with the Great Eastern lode, and on the same day made entry, No. 1497, of the Alps No. 2, less this conflict.

In so far as material to the question involved here the next step was by your office letter of April 8, 1885, addressed to the surveyor general of Colorado, which required a new survey of the Alps No. 2, showing the exclusion of the Great Eastern. He was required to notify the parties in interest. Thus the matter rested October 9, 1894, when your office called for a report from the surveyor general as to what action had been taken under your former letter. On November 9th, following, he reported that on October 13, 1894, he "wrote J. W. Smith, Leadville, registered, $25 deposit required, and sent a copy of former General Land Office letter;" that the registry receipt was returned, but no further action had been taken.

On March 19, 1895, your office addressed the register and receiver, calling attention to the correspondence with the surveyor general, and held the entry for cancellation.

On June 15, 1895, the register reported that notice had been mailed to the Alps Consolidated Mining Company at Leadville by registered letter and the same was returned uncalled for. Thereupon, by letter of June 24, 1895, your office canceled the entry.

On July 6, 1895, there was filed in the local office the affidavit of one B. F. Stickley, by which it is shown that he is the agent of the Alps Company, and has been such agent for ten years; that the company has no office in Leadville; "that affiant this day for the first time learned of the requirements of Hon. Commissioner's letter of April 8, 1885;" that the company never had notice of such requirement; that the company "stands ready, willing and able to comply with all the requirements of the General Land Office;" that the premises are valuable and large sums of money have been spent in the development of the same. The company ask that the order of cancellation be revoked and that it be allowed to meet all the requirements of your office.

Omitting further details, it is sufficient to say that McGowan et al. on June 26, 1895, located the ground under the name of the Clark lode, and they appeared by counsel and objected to the reinstatement of the Alps entry. Your office, however, by letter of October 16, 1895, held that the cancellation was erroneous, and the same was recalled and revoked, whereupon McGowan et al. prosecute this appeal, assigning numerous grounds of error.

The most material contention of counsel is that it was error to reinstate this entry in the presence of an alleged adverse right in the land, acquired as it was by a relocation of the identical ground, after the cancellation of the entry by your office.

There is nothing in the record that would justify the surveyor general in sending notice of your office order of 1885 to J. W. Smith. This is

the only mention of this name in the record. Neither was there anything to warrant the local officers in mailing the notice to the Alps Company addressed at Leadville. On the contrary, the certificate of incorporation filed in their office shows that the office of the company is in New York City. It follows that the cancellation was without notice to the claimant, and therefore erroneous. The attention of your office being called to this, it could do nothing less than reinstate the entry.

The fact that the entry was canceled would not of itself render the ground subject to relocation. The original location of the lode was not affected by the cancellation, even though it had been regular, and the owner could still hold it under its possessory right so long as there was a compliance with the requirements of the law. (Branagan et al. v. Dulaney, 2 L. D., 744).

An affidavit by McGowan has been filed in which he states that the annual assessment work for the years 1894 and 1895 was not performed on the Alps No. 2. This affidavit can not be considered, for the reason that the Alps Company has had no notice of it.

There is in the files an amended survey of the Alps No. 2, forwarded December 7, 1895.

Your office judgment is affirmed, and the papers transmitted by your office letter "N" of November 1, 1895, are herewith returned for appropriate action.

RAILROAD GRANT-SECTION 1, ACT OF APRIL 21, 1876.

NORTHERN PACIFIC R. R. Co. v. TREADWELL.

The confirmation of entries under section 1, act of April 21, 1876, is solely for the benefit of the individual claimant, conditioned upon his compliance with law, and was not intended to confirm the entry absolutely, as against the right of the company, so as to except the land from the grant, in favor of any other settler.

Secretary Smith to the Commissioner of the General Land Office, July (F. W. C.)

13, 1896.

With your office letter of November 4, 1895, are submitted the papers in the case of Northern Pacific R. R. Co. v. Treadwell, involving the SW. of Sec. 5, T. 23 N., R. 19 E., Waterville land district, Washington. This land is within the limits of the withdrawal upon the map of general route of the branch line of said road, filed August 15, 1873. It fell without the limits of the withdrawal adjusted to the map of amended general route of the branch line filed June 11, 1879, and was restored to entry during that year. It again fell within the primary limits of the grant as adjusted to the map of definite location filed December 8, 1884.

The order of withdrawal on account of the map of definite location was not received at the local office until January 7, 1888.

Subsequently to the filing of the map of definite location and prior to the receipt of the notice thereof at the local office, to wit, on March 25, 1885, John Tymon was permitted to make homestead entry of this land, which entry was contested by Treadwell for abandonment and ordered canceled June 22, 1889. Thereafter Treadwell applied to file pre-emption declaratory statement for the land upon which the present controversy arose.

The testimony shows that Treadwell began working upon the tract in question September, 1887. He moved his family on the place the following spring and they have since resided thereon and made improvements valued at about $200.

Your office decision rejected the application holding that as there was no authority for the filing of the map of amended general route, the withdrawal of 1873 continued and was a bar to the allowance of Treadwell's application.

The appeal urges that as Tymon's entry was made before the receipt of notice of the withdrawal at the local office upon the map of definite location, that the same served to defeat the grant.

For the disposition of this case it is unnecessary to consider the effect of the withdrawal of 1873 upon the map of general route. The record discloses no claim to the land at the date of the filing of the map of definite location December 8, 1881, and the land therefore passed under the grant. While it is true Tymon made entry before the receipt of the notice of withdrawal at the local office and might have been confirmed under the act of April 21, 1876 (19 Stat., 35), that is disregarding the withdrawal of 1873, yet as held in the decision of this Department in the case of Northern Pacific R. R. Co. (20 L. D., 191), the confirmation of entries under section one, act of April 21, 1876, is solely for the benefit of the individual claimant, conditioned upon his compliance with law, and was not intended to confirm the entry absolutely as against the right of the company so as to except the land from the grant, in favor of any other settler.

Whatever Tymon's rights under the act of 1876 might have been had he complied with the law, yet with the abandonment of his entry said act can have no application, and as Treadwell settled upon the land subsequently to the filing of the map of definite location, your office decision rejecting his application for conflict with the grant is hereby affirmed.

COAL LAND-SCHOOL GRANT-DISCOVERY.

STATE OF MONTANA v. BULEY.

Land known to contain coal prior to the admisssion of the State to the Union is excepted from the operation of the school grant.

It is not necessary to show that coal has been developed on all parts of a forty acre tract; if coal has been discovered thereon the applicant is entitled to the whole of such legal sub-division.