An examination of the evidence satisfies me that the conclusion reached by you is correct.

It is contended, however, that the land in question was within the primary limits of the grant to the State of Michigan by the act of June. 3, 1856. That at the date when Van Leuven settled thereon the title to said land was vested in said State, and therefore it cannot be properly be regarded as "public land" within the meaning of said inhibitory clause of the statute. That "placing the construction upon the testimony most favorable to the contestant, he abandoned his residence to reside upon the lands of the State of Michigan." This contention is more technical than sound.

As between settlers upon land withdrawn for railroad purposes, priority of settlement may be properly considered. McInnis v. Cotter (15 L. D., 583); Tarr r. Burnham (6 L. D., 709). But priority of settlement could not be awarded to one who was then disqualified to make settlement. Van Leuven sought to gain advantage over other settlers by going upon this land while it was not open for settlement. He cannot be permitted to claim that the land is "public land" for the purpose of settlement thereon, and at the same time say that it can not be regarded as "public land" for any other use. He settled upon the land in order to obtain a title from the United States, not from the State of Michigan.

He first tendered a declaratory statement for this land on January 30, 1889, at the Marquette land office, which shows that he then regarded it as "public land." On the rejection of his statement he appealed to your office, on the ground that" said lands have not been railroad lands since the joint resolution of 1862, and the relinquishment under it, whereby the said State of Michigan received in lieu other lands elsewhere."

In his final proof made March 19, 1890, he swore that he settled upon the land December 11, 1888, and moved with his family thereon on January 10, 1889, and had lived there since. He thus gained a priority of settlement, and became the first settler, as the land officers found in awarding him the land; but such priority should not be awarded to one disqualified to make such settlement. After making such a record he should be held estopped from claiming that the tract was not "public land," when such claim is made for the sole purpose of enabling him to evade the inhibition of the statute. If he was disqualified to make settlement December 11, 1888, by reason of said inhibition, that disquali fication continued.

The fifth section of the act of March 2, 1889, allowed settlers on lands forfeited by that act, who should desire to enter the same under the homestead law, when making final proof, "for the time they have already resided upon and cultivated the same."

This provision gave homestead settlers the same privilege in counting the time of their residence upon forfeited land as if they had settled

upon "public land." Any disqualification on the part of such settler which would prevent his legal settlement on " public land" would attach to him as a settler on lands forfeited by said act, and would subsist as a continuing disqualification when said land was restored to the public domain by said act. Congress did not intend to confer this privilege upon one disqualified to make settlement. The same principle applies in spirit and intent to a pre-emption settler. Your judgment is affirmed.

MINING CLAIM-PROTEST-HEARING.

TAM ET AL. v. STOREY.

On a sufficient showing made by protest the Department has authority to investigate a mineral entry, and order a hearing to determine whether there has been due compliance with the mining law, although it may appear that the adverse location, set up by the protestant was not made until after the entry in question had been allowed.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, March 13, 1893.

On August 13, 1892, the Department granted the application of John L. Tam and John W. Cotter, filed by their attorney, to have certified to this Department the record in the case of their protest against mineral entry No. 2223 of the Single Tax lode claim, Helena, Montana, made by Lucy M. Storey which protest was dismissed by you on April 13, 1892, and their right of appeal denied. By your letter "N" dated August 24, 1892, said record was transmitted, and it is now before me for consideration.

It appears that said Storey, on April 30, 1890, filed her application for patent of said lode claim, based upon a location dated January 1, 1889, and amended location made December 9, same year, which was recorded on January 4, 1890; that the order of survey was made January 18, 1890, and, after due publication, no adverse claim being filed, the local officers allowed said entry on August 7, 1890.

On March 19, 1891, a protest was made against issuing a patent upon said entry by G. W. Nicholson and J. W. Shields, alleging,—(1) that said claim was not duly located; (2) that the applicant had not made the required expenditures for improvements on said claim, and had not expended over fifty dollars in its development; and (3) that there have not been made upon said claim five hundred dollars worth of improvements for its development, or for any other purpose. Accompanying said protest were filed ex parte affidavits, in which it is alleged that at date of said application the improvements made by the applicant would not exceed the sum of sixty dollars.

On August 25, 1891, counsel for applicant filed in your office an

amended abstract of title, showing that the applicant had acquired title to the Addie Laura claim, located on April 8, 1889. With said abstract of title was also filed the affidavit of the applicant, in which she swears that she purchased said Addie Laura mine, and afterwards located the same premises as the Single Tax mine; that she should have stated in her application for patent to the Single Tax mine that her title had been acquired by conveyance and location. At the same time four other affidavits were filed, alleging that improvements were made on said claim during the year 1891 to the amount of $250 and one witness swears "that fully one thousand dollars has been expended on said mine in its development."

On November 3, 1891, you denied said protest.

Afterwards, to wit, on April 7, 1892, John L. Tam and John W. Cotter filed a protest, alleging,-(1) that said claimant has failed to locate said claim and fix the boundaries thereof, as required by law; (2) that she had not, at the time and place of posting location notice, discovered a mineral-bearing vein; (3) that she never made or caused to be made or done five hundred dollars worth of work of improvement upon said Single Tax lode claim, or the ground embraced therein; (4) that said protestants are the owners of an undivided interest in the "Single Out" and "Double Out" lode claims, which include the ground enbraced in the said Single Tax lode claim, and that said Single Out and Double Out lode claims were duly located by said protestants, "and that the said locations are still subsisting and valid." Accompanying said protest are numerous affidavits tending to sustain said allegations. You dismissed said protest because the first three allegations contained therein were included in said protest of Nicholson and Shields, and the fourth allegation did not show when said Single Out and Double Out locations were made, or that the protestants or their "predecessors in interest" had any title to the ground covered by said locations prior to the appropriation of the same by the Single Tax application when they might have protected their interest by filing adverse claims. In said departmental decision it was stated

It is quite evident that if the allegations in said protest be true, patent ought not to issue on said entry, and under the authority of the rulings of this Department in the cases of Bodie Tunnel and Mining Company v. Bechtel Consolidated Mining Company et al. (1 L. D., 584-590), Bright et al. v. Elkhorn Mining Company (8 L. D., 122-126), Weinstein et al. v. Granite Mountain Mining Company (14 L. D., 68), the protestants should have a hearing before this Department upon their appeal from the rejection by you of their protest, asking that the allegations therein be investigated.

The record has been carefully examined, and there is a great dis crepancy between the statements in the affidavits submitted by said protestants and those submitted by the claimant with her amended abstract of title. If the former be true, as stated in said departmental decision granting the writ of certiorari, patent ought not to issue on said

entry. This conflict of statements in said affidavits cannot well be determined without a hearing before the local officers, where the witnesses may be brought face to face and be subject to cross-examination.

If it be conceded that the protestants did not make their locations until after said entry was allowed, still the Department has au thority to order a hearing to determine whether there has been due compliance with the mining law. Alice Placer Mine (4 L. D., 314); Sweeney v. Wilson et al. (10 L. D. 157); Devereux et al. v. Hunter et al. (11 L. D., 214); Apple Blossom Placer v. Cora Lee Lode (14 L. D., 641). In the case of Lee v. Johnson (116 U. S., 48, 52), the supreme court said

So, in the present case, the Secretary of the Interior came to the conclusion, from the evidence returned by the register, that Johnson must be considered not as a bona fide homestead claimant, acting in good faith, but as one seeking, by a seeming compliance with the forms of law, to obtain a tract of land for his son-in-law, who had previously exhausted his homestead privileges, observing that the element of good faith is the essential foundation of all valid claims under the homestead law. Under these circumstances, so far from having exceeded his jurisdiction in directing a cancellation of the entry, he was exercising only that just supervision which the law vests in him over all proceedings instituted to acquire portions of the public lands.

In the case of Knight v. United States Land Association (142 U. S., 161-181), the late Justice Lamar, speaking for the court, said

The Secretary is the guardian of the people of the United States over the public lands. The obligations of his oath of office oblige him to see that the law is carried out and that none of the public domain is wasted or is disposed of to a party not entitled to it. He represents the government, which is a party in interest in every case involving the surveying and disposal of the public lands.

In the exercise of this well recognized supervisory authority, in my judgment, the case at bar is one that requires a further investigation to ascertain whether the requirements of the mining law have been duly complied with by the claimant.

You will accordingly direct the local officers to duly order a hearing, at which the protestants will have an opportunity to show that the claimant has not complied with the requirements of the mining law, and she will be allowed to furnish testimony showing the validity of her said entry.

Your decision denying the application for a hearing is reversed.

PRACTICE-APPEAL-NOTICE.

EADS v. HARTSHORN.

One who appeals to the Department, from a decision of the General Land Office affirming an order of the register and receiver rejecting an application to enter, is not required to give notice of such appeal to a subsequent applicant for the same tract, whose application has been suspended during the pendency of the proceedings on appeal.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, March 14, 1893.

On October 3, 1892, you transmitted the papers in the matter of the appeal of Richard Hartshorn from your decision of July 12, 1892, sustaining the action of the local officers in rejecting his application to make homestead entry of the SW. of Sec. 13, T. 13 N., R. 4 E., Oklahoma land district.

In your decision, after rendering judgment as above, you added the following:

On November 28, 1891, one Joseph L. Eads presented an application to enter the SW. of Sec. 13, T. 13 N., R. 4 E., which was suspended pending action on Hartshorn's application. On January 11, 1892, J. A. Wilson presented an application for the same tract, which was suspended pending action on the prior applications of Eads and Hartshorn. You will hold said applications of Eads and Wilson (which are herewith returned) in abeyance until final action is taken on the Hartshorn application.

The Department is now in receipt of a motion filed by counsel for Eads, asking that Hartshorn's appeal be dismissed

For the reason that said Hartshorn did not give said Eads any notice of said appeal. (See 11 L. D., page 621, case of Horace H. Barnes.)

The case above cited suggests no reason why Hartshorn's appeal should be dismissed. Said case held that one Burrows was, "by reason of his subsisting entry," entitled to notice of Barnes' appeal. In the case at bar, Eads has no subsisting entry, and therefore Hartshorn was not required to serve him with notice of appeal. (Hiram Brown et al., 13 L. D., 392.)

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The motion to dismiss is therefore overruled.

HOMESTEAD-COMMUTATION-RESIDENCE.
FRANCIS A. LOCKWOOD.

The fourteen months of residence required of a commuting homesteader by section 2301, R. S., as amended by section 6, act of March 3, 1891, must be computed from the date of the original entry.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, March 15, 1893.

On March 18, 1891, Francis A. Lockwood filed in the land office at Waterville, Washington, his application (No. 150) for the homestead