The record shows that on July 12, 1889, Horatio Day, as mayor, filed a town-site application for said land which was transmitted to your office August 12, following, and on July 23, 1889, Jackman made a homestead entry of the E. of NE. and SW. of NE. in the same section and adjoining the land in controversy.

On June 8, 1891, Jackman made application for the tract in controversy as an additional homestead which was rejected by the local officers on the ground that he had exhausted his right, from which action Jackman appealed and on July 15, 1891, the case was transmitted to your office. November 14, 1891, while the matter was pending before you one George H. Hughes made application to enter said NW. of NE. as a homestead, which was rejected by the local officers for conflict with the town-site application and on account of the pending appeal of Jackman, whereupon Hughes appealed and the same was transmitted to your office February 5, 1892.

Under date of May 3, 1892, you considered both appeals and in the case of Jackman sustained the judgment of the local officers, but in the case of Hughes' appeal, it being alleged that the town-site people had never occupied their claim, you remanded his case to the local office for a hearing with due notice to all parties in interest. The act of March 2, 1889 (25 Stat., 854) provides:

That any homestead settler who has heretofore entered less than one quarter section of land may enter other and additional land lying contiguous to the original entry which shall not, with the land first entered and occupied, exceed in the aggregate one hundred and sixty acres, without proof of residence upon and cultivation of the additional entry.

Thus it will be seen that as Jackman made his original homestead entry subsequent to the passage of said act he is not entitled to the right of making an additional entry thereunder.

In the argument of counsel for Jackman he relies mainly on the provisions of the act of March 3, 1891 (26 Stat., 1095) as authority for allowing the additional entry and quotes from section five of said act, as follows:

And every person owning and residing on land may, under the provisions of this section, enter other land lying contiguous to his land, which shall not, with the land so already owned and occupied, exceed in the aggregate one hundred and sixty

acres.

The portion of the act last quoted, only applies to persons who own land and has no reference whatever to additional homestead entries. In other words, it is the provision of law providing for the entry of adjoining farm homesteads and has no application to any other class of entries.

The right to make additional homestead entry under sections 5 and 6, act of March 2, 1889 (supra) is limited to cases where the original entry was made prior to the passage of said act. John B. Doyle (15 L. D., 221); John W. Cooper et al. (ib., 285). Or where the original entry

is made subsequent to said act, its provisions in relation to additional homesteads are not applicable. Lizzey Peyton (ib., 548).

In the case of Hughes' application, no appeal has been reported from your decision remanding the case to the local office for a hearing and therefore that question is not before the Department.

Your judgment so far as appealed from in the case at bar, is affirmed.

MINING CLAIM-PROTESTANT-APPEAL-HEARING.

NEVADA LODE.

A protestant against a mineral entry who alleges an adverse interest, and non-compliance with law on the part of the entryman, and whose application for a hearing on such charges has been denied, is entitled to be heard on appeal. A charge of non-compliance with law against a mineral entry, made by a protestant, may properly form the basis of a hearing, but the protestant in such case is not entitled to set up his own claim to the land.

First Assistant Secretary Sims to the Commissioner of the General Land Office, June 17, 1893.

I have considered the appeal of J. W. Morehouse et al. taken from your judgment of September 1, 1892, dismissing their protest against mineral entry No. 1832 made May 28, 1892, by Walter S. Crismon and Peter J. Reid for the Nevada lode claim, lot 51, in Fish Springs mining district, Salt Lake City, Utah, also refusing to order a hearing on said protest.

The pertinent facts in the case briefly stated, are as follows:

On October 26, 1891, Crismon and Reid located the Nevada lode, and on March 22, 1892, applied for a patent. On May 28, 1892, they entered the tract, paying for it and receiving a final receipt therefor.

On August 1, 1892, J. W. Morehouse, Alma Hague and George Whitmore filed a protest against said entry, alleging a prior right to a part of the ground, and that the tract located by Crismon and Reid is not the land included in the survey and application for patent.

Protestants allege also that a notice was not posted in a conspicuous place on the claim, and that they did not receive notice; that claimants did not perform the work on the claim required by law to be done prior to entry; that they are the owners of and in possession and entitled to the possession of the mining claim known as the Galena No. 2, located prior to the location of the Nevada lode, to wit, on January 16, 1891, and duly recorded on February 16, following; that the survey and application for patent on the Nevada claim includes a part of the ground embraced in their prior claim; that while they were at work on their claim, the Galena No. 2, Crismon and Reid came to them and stated that they were going to locate a fractional or wedge claim which lay between the said Galena No. 2 claim on the north, and the Utah claim on the south, that relying upon these representations by Crismon and Reid and upon the

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recorded location notice of the said Nevada claim showing said Galena No. 2 claim to be the north boundary of said Nevada claim aforesaid, these protestants paid no further attention to said Nevada location, or to any alleged application for patent therefor.

On September 1, 1892, after considering the protest, you dismissed it, and refused to order a hearing, and protestants have appealed to the Department.

Applicants for a patent have filed a motion to dismiss the appeal, because of the fact that it was taken by mere protestants who are not entitled to the right of appeal.

This motion must be rejected on authority of the ruling made in the case of Weinstein et al. v. Granite Mountain Mining Co. (14 L. D., 68) and other cases therein cited.

The record in this case shows that publication was made in a proper paper from March 25, to May 27, 1892. No protest was filed, and it is shown by the surveyor's return that more than $500 was expended for development work on said claim prior to the application for patent.

It is shown by the papers on file that the same tract located by Crismon and Reid is embraced in their application for patent, and I am of the opinion that the excuse given by protestants for not filing their adverse claim during publication and bringing suit as required by law, is insufficient. It was said in the case of Weinstein et al. v. Granite Mountain Mining Co. (supra) that—

Where there is no charge that the claimant has failed to comply with the terms of the mining laws, but an adverse claimant simply asserts a prior or superior right to the land as against the claimant, he must file his adverse claim "during the period of publication," and having done this "It shall be the duty of the adverse claimant within thirty days after filing to commence proceedings in a court of competent jurisdiction to determine the question of right of possession." (Sec. 2326, Revised Statutes). Congress thus removed from the jurisdiction of the Land Department, the determination of this question of mere right between individuals, but it did not take away the jurisdiction to try and determine whether the mining laws have been complied with. The last clause of section 2325 Revised Statutes especially excepta this. It says:

"Thereafter no objection from third parties to the issuance of patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter."

The protest before me, however, charges more than a conflict between these rival claimants. It is asserted under oath by Morehouse, Hague and Whitmore that claimants "did not comply with the requirements of the statutes in such cases made and provided in that they did not themselves, nor did any one on their behalf, perform the work required by law to be done upon said Nevada claim prior to entry thereof.' They also allege that a "notice of said application for said Nevada claim was not posted in a conspicuous place upon said alleged Nevada claim during the period required by statute."

These allegations, if true, are sufficient to compel the cancellation of the mineral entry and defeat the application for a patent. Now, while

protestants are barred from setting up any claim to the tract because they failed to file their adverse claim, still they have a right to show, if they can, that applicants for patent have not complied with the law, and by so doing secure the cancellation of the mineral entry and thus make it necessary for claimants to begin over again, which would allow protestants to file the adverse claim during the publication of notice.

You will order a hearing between the parties, after due notice, at which protestants will be allowed to show, if they can, that claimants have not complied with the law; but they will not be allowed to show that they have any claim to the land.

Your judgment is accordingly reversed.

TIMBER CULTURE ENTRY-EXCESSIVE ACREAGE.

PLATT v. SLATTERY.

A second timber culture entry in a section cannot be allowed to embrace a fractional sub-division, if the acreage in both entries, taken together, amounts to more than one fourth of the whole section.

The discretion of the Commissioner of the General Land Office in allowing timber culture entries to stand that include a small excess in acreage, does not extend to an entry in which over one half of the sub-division entered is "excess." First Assistant Secretary Sims to the Commissioner of the General Land Office, June 20, 1893.

I have considered the case of Frank C. Platt v. William Slattery, on appeal by the latter from your decision of April 2, 1892, holding his timber culture entry for lot No. 1, Sec. 10, T. 24 S., R. 34 W., Garden City land district, Kansas, for cancellation, and allowing the former to file his pre-emption declaratory statement therefor.

It appears by the plat of the government survey of this township, that the Arkansas river, which is over eighteen chains wide, runs diagonally across the north-east part of this section, making fractional each of the quarter quarters of the NE. 4, and taking part of the NE. 4 of the NW. of the section. The river, which is meandered, covers 85.40 acres, leaving 554.10 acres of land in the section. One, Gardner H. Morgan had made timber culture entry for lots 2, 3 and 4, and the NW. of the NW. of the section, containing 127.60 acres, but on February 17, 1890, Slattery made timber culture entry for lot No. 1, containing twenty-seven acres, and on February 24, Platt offered his declaratory statement, alleging settlement on said lot No. 1 January 29, 1890, and he asked to be allowed to make a pre-emption filing for the same. This was rejected by reason of the timber culture entry of Slattery. Thereupon he filed an affidavit of contest against the entry, alleging prior settlement on the lot, and that the timber culture entry was illegal because it, with the entry of Morgan, was in excess of one-fourth of the section.

A hearing was ordered by the local officers, to determine the respective rights of the parties, and upon notice duly served, the same was had, and upon the hearing of the case, the local officers recommended the cancellation of Slattery's entry, from which action he appealed; you affirmed the decision below, and held the entry for cancellation, from which he again appealed.

In the appeal and argument it is insisted that you erred in holding that one quarter of a section, meant one quarter of the particular section, rather than one hundred and sixty acres.

There is a mistake in the evidence as to the area of the section of these several lots, and counsel claim that the excess of the four lots, and the quarter quarter section over the quarter of the section, is so small that it should not work the cancellation of the last entry, and he cites the case of Charles W. Miller (6 L. D., 339), where 181.81 acres in a section were allowed to be entered.

It appears that in that case the section contained 690.81 acres, and an entry for 101.81 acres had been made, when Miller sought to enter the W. of the SW., containing eighty acres, and your office held that the law allowed only one hundred and sixty acres, regardless of the size of the section. The Department held that this was error, and that one-fourth of the section was the correct interpretation of the law, and the case of McCabe (4 L. D., 69) was cited in support of this view. In the latter case, two hundred and eighty acres were allowed for timber culture, but the section contained 1,421.68 acres, subdivided into lots, and as two hundred and eighty acres were less in area than onefourth of the section, the entries were allowed to stand.

In the case of James C. Garman (11 L. D., 378) the question was fully discussed, and it was held that the proviso in the act "That not more than one quarter of any section shall be thus granted for a timber culture entry," implied a technical quarter section as surveyed, and the case of Andrew Johnson (10 L. D., 681), was cited, and distinguished from the Garman case. In the Johnson case it was held that as a lot sought to be entered, added to that portion of a section already covered by a timber culture entry, would be in excess of one quarter of the section, and the lands were not a "quarter section," that the entry for the lot could not be allowed. The case at bar is similar to the case of Johnson, and on the same principle applied therein, your decision will be sustained.

In the Miller case it is true that the eighty acres which was a legal subdivision added to the former entry, was a little over one-fourth of the section, but in the case at bar, the "excess" is 15.95 acres and is more than half the "legal subdivision" sought to be entered. This excess does not come within the maxim that "the law does not notice or care for trifling matters."

While in the discretion of the Commissioner of the General Land Office, an entry may be allowed to stand where the excess is trifling,