the judgment rendered. Hence, entry should not be allowed until a copy of the judgment roll is filed in the local land office. Silver King Lode, 14 L. D. 308.

62. A. may apply for patent to a mining claim, exclusive of a portion thereof involved in an adverse suit brought by him against B., a prior applicant, without thereby waiving any right to the excluded portion, and if, on such suit, the land is awarded to A., he may then make entry of his entire claim, based on his application as to one part and on his judgment as to the other. Rebellion M. Co., 1 L. D. 542.

63. If an adverse claim is filed against an application for patent for two contiguous claims, directed against only one of said claims, the applicant may make entry of the claim not covered by the adverse. Com'r to Marysville Office, July 10, 1896.

64. A mineral claimant may temporarily exclude part of his claim from his application to purchase and entry without waiving his right thereto, if such exclusion be caused by assertion of adverse rights. Aspen Cons. M.

Co., 22 L. D. 8. (Citing Branagan v. Dulaney,

2 L. D. 744.)

65. A mineral entry erroneously allowed pending a suit on an adverse claim may be allowed to stand where the entryman has secured judgment in his favor on such suit. Gunnison Crystal M. Co., 2 L. D. 722.

66. A mineral entry allowed during the pendency of an adverse suit against the applicant need not be canceled, but may remain suspended to await the determination of said suit. Meyer v. Hyman (on review), 7 L. D. 336. (Revoking Meyer v. Hyman, 7 L D. 83.) 67. An entry allowed upon an application against which an adverse suit is pending will be canceled. Brown v. Bond, 11 L. D. 150.

land office. Nettie Lode v. Texas Lode, 14 L. D. 180.

70. The allowance of a mineral entry during the pendency of an adverse suit has no effect on a patent issued after termination of such adverse suit in favor of applicant. Deno v. Griffin, 20 Nev. 249; 20 Pac. Rep. 308.

71. An entry allowed after dismissal of an adverse suit is no bar to the reinstatement of such suit. McEvoy v. Hyman, 25 Fed. Rep.

539.

72. Where a mineral entry is allowed upon the dismissal of an adverse suit, it will be canceled upon the reinstatement of the suit. Iola Lode, 1 L. D. 539.

73. The failure of an agent who files an adverse claim, sworn to as agent, and on which suit is duly instituted, to furnish proof of agency at the time of filing the adverse claim, will not warrant the allowance of

entry upon the application against which the adverse claim is filed, and an entry so allowed will be canceled. Brown v. Bond, 11 L. D. 150.

74. Entry should not be allowed where the

claim applied for is involved in a pending suit to determine the right of possession thereto, instituted prior to publication of notice of application for patent. If on said suit it is adjudged that the applicant is not entitled to the possession of a part of the claim, he will not be allowed to enter such part. Northwestern Lode and Mill Site Co., 8 L. D.

437.

75. Where, by a final decision on adverse suit, it was held that neither party thereto was entitled to any credit for work thereto fore done on the claim, before the applicant is allowed to make entry he should show an expenditure of $500 since the trial of said suit. J. D. Rankin, 7 L. D. 411.

76. Where entry has been made for a mining claim and thereafter an application is erroneously allowed for a conflicting claim, and the entryman of the first claim files an adverse claim against said application and begins suit thereon, all action will be sus

69. Entry is not prevented by the pendency of a suit brought upon an invalid adverse claim, or not brought within thirty days from filing of the adverse claim in the

cation during the pendency of said suit. Little Giant Lode, 22 L. D. 629.

77. Where part of the land embraced in a mineral entry is entered by virtue of a transfer thereof to the applicant by an adverse claimant who had secured a judgment there

for, the entryman, as to that tract, stands in the place of his grantor and must show $500 expenditure thereon. Jackson M. Co., 3 L. D.

149.

78. A mineral entry may be made, based in part on the right secured by judgment and in part on the right of applicant. Gunnison Crys- | tal M. Co., 2 L. D. 722.

79. An adverse claimant is not barred from

asserting his claim by the allowance of entry without legal notice of application for patent, and where he sets up such allegation of noncompliance with law in a protest, he has such an interest as entitles him to appeal from the action of the General Land Office dismissing his protest. Bright v. Elkhorn M. Co., 8 L. D. 122.

80. An adverse claim may not be asserted under the Statute of Limitations after mineral entry has been made. Rader v. Allen, 27 Oreg. 344; 41 Pac. Rep. 154.

81. An application for a lode patent was made by A.; B., the owner of a conflicting lode claim, filed an adverse claim and commenced suit thereon, alleging a prior location of the ground in conflict. A. filed an answer, but thereafter amended the survey of his claim by so shortening it as to eliminate from it all conflict with the claim of B., and was allowed to make entry in the land office of the reduced area. He then withdrew his answer, and B., on testimony submitted, secured judgment for the land in controversy. Held, that the withdrawal of the answer and abandonment of the application for patent, as to the conflict did not remove the cause from the jurisdiction of the court; that, in view of the first holding, the judgment is conclusive as between A. and B. of the priority of the location of B. Last Chance M. Co. v. Tyler M. Co., 157 U. S. 683.

82. The question at issue in a suit based upon an adverse claim is the priority of right to purchase the fee of the land involved from the government. One who already has the fee to the land is not obliged to proceed under section 2326, United States Revised Statutes. Bennett v. Harkrader, 158 U. S. 441.

83. "I apprehend, however, that the successful litigant, under said section (2326), occupies the same position as does an applicant who has given due notice of application, during which no adverse claim has been filed. In each case the rights of the claimant may

be lost by abandonment any time prior to entry." Com'r to Leadville Office, Feb. 24, 1896, Kennedy v. Johnston.

84. Where, in the location certificate of a mining claim of which entry has been made, it is stated that the location is upon an abandoned claim, the entryman is not required to furnish evidence of such abandonment, as the owner of the claim alleged to be abandoned loses his rights by failure to file an adverse claim. Manhattan & San Juan S. M. Co., 2 L. D. 698.

85. A preference right to purchase coal land depends upon priority of possession and improvement, followed by proper filing and development. Bullard v. Flanagan, 11 L. D.

515.

86. "Section 2348, U. S. Rev. Stat., makes the opening and improving of a coal mine upon the public lands a condition precedent to the preference right of entry therein authorized." Departmental decision of July 1, 1896, In re Cummings v. Lessinger.

87. For good reasons the Land Department will expressly authorize the filing of a second coal declaratory statement, and where entry has been made, based on a second declaratory statement, the filing thereof may be authorized nunc pro tunc. John McMillan, 7 L. D. 181.

88. A coal declarant who has failed to purchase during the time allowed will not be given further protection under a second declaratory statement for the same land. Alfred Grunsfeld, 10 L. D. 508.

89. A second coal declaratory statement cannot be filed in the absence of a valid reason for failing to purchase under the first. Albert Eisemann, 10 L. D. 539; Walter Dearden, 11 L. D. 351; Conner v. Terry, 15 L. D. 310; McKean v. Buell, Sickel's Min. Dec. 398.

90. A second coal declaratory statement may not be filed by the same person in the absence of a valid reason for not perfecting title under the first. Conner v. Terry, 15 L. D. 310.

91. The declaratory statement of a coal claimant should be canceled at the expiration of the time allowed for purchase thereunder. Alfred Grunsfeld, 10 L. D. 508.

92. A person who has bought and sold a preference right under the coal land law is not thereby barred from making a coal entry. William H. McConnell, 18 L. D. 414.

110. The distance of coal land from a completed railroad at date of payment and entry must govern the price, i. e., whether $10 or $20 per acre (sec. 2347, U. S. Rev. Stat.). Departmental decision of Sept. 17, 1881, Copp's Min. Lands, 345; Departmental instructions, 1 L. D. 540; Frank Foster, 2 L. D. 780; Joseph L. Colton, 10 L. D. 422; Edward B. Largent, 13 L. D. 397; Oswald C. Mortson, 16 C. L. O. 52; Departmental decision of May 10, 1892.

111. The qualification of every member is essential to the right of an association to make a coal entry. W. F. Hawes, 5 L. D. 224.

116. The requirements of the General Mineral Circular issued by the Land Department do not apply to entries under the coal land laws. W. H. Mosley, 6 L. D. 620.

117. The law of August 30, 1890 (26 Stat. 371), limiting the area enterable under the land laws to three hundred and twenty acres, applies to entries under the mining and coal land laws. The general rule of approximation in area should apply under this law. Com'r to Helena Office, Oct. 17, 1890, 17 C. L. O. 231. Section 17 of the Act of March 3, 1891 (26 Stat. 1095), provides that this limitation shall not apply to the entry of mineral

lands.

118. When money was left on deposit with a former receiver on account of a mining claim, but was not accounted for or covered

not chargeable, nor may it be credited on the entry on account of which it was deposited. Lady Bryan S. M. Co., 2 L. D. 637.

113. The transferee of a coal entryman, prior to issuance of patent, takes no greater right than his grantor had, i. e., an equitable title, and the entry is subject to cancellation by the Land Department, just as though no transfer had been made. Scott v. Sheldon, 15

L. D. 588.

114. A coal contestant who offers to pay costs of a hearing in his contest against a coal entry, and upon whose showing the entry is canceled, has a preference right of filing upon the land even though the hearing prayed was never ordered. Garner v. Mulvane, 12 L. D. 336.

115. "It seems clear that this proviso [to sec. 2348, U. S. Rev. Stat.] means that where an association has expended $5,000 or more in working and improving a coal mine or mines, then, in consideration of such expenditure, the association may enter by legal subdivisions not to exceed six hundred and forty acres of land, including the legal subdivisions of the land on which the mining improvements are actually situated, irrespective of whether the land covered by the improvements is coal land or agricultural land." Mc

119. Where a mineral entry is allowed upon insufficient notice of application for patent, and is therefore canceled, the price paid for the land and the ten dollar fee paid will be repaid. John R. Magruder, 1 L D. at date of filing the application for patent

526.

120. Repayment of purchase money paid in making a coal entry will not be made where the entry has been canceled for fraud. tham, 20 L. D. 379 (mineral entry). D. A. Mulvane, 15 L. D. 146; Mary McM. La

121. The allowance of mineral entry for a mill site under the first clause of section 2337, United States Revised Statutes, without proof of the use or occupancy of the land for mining or milling purposes, is erroneous; and, upon cancellation of the entry as to the mill site, the purchase money should be repaid. Hudson M. Co., 14 L. D. 544.

122. Where a mineral entry has been canceled, the purchase price may not be applied upon a second entry of the land by the same parties; but the purchase money must be paid upon the second entry as in the first instance. Claimants must seek relief by asking repayment of the money paid on the first entry. Com'r to Leadville Office, Sept. 12, 1896.