TIMBER CULTURE ENTRY-AMENDMENT-SECOND ENTRY.

CHARLES A. VINCENT.

A timber culture application for land not intended to be entered originally can not be allowed as an amendment, and the repeal of the timber culture act precludes the allowance of a second entry embracing said land.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, June 11, 1892.

Charles A. Vincent appeals from your decision of June 4, 1891, denying his application to amend his timber-culture entry for N. 1⁄2 of NE. and N. of NW. 4, Sec. 5, T. 21 N., R. 41 W., Alliance land district, Nebraska, to embrace the S. of NE. and W. 1⁄2 of SE. 1, Sec. 4, of said town and range.

The record shows that on July 14, 1890, he made application for a timber-culture entry for the first above described tract, which was accepted by the local officers and the proper papers issued; that on May 18, 1891, he was advised by the local officers that his entry was in conflict with a prior entry for the same tracts in the name of Sarah L. Lotspeich; that he filed petition in your office asking to be allowed to amend his entry to embrace the last above described tract, which you denied and Vincent appeals.

The local officers state that the entry of Lotspeich was received in the local office by Mr. Windsor, a clerk, who on that day was taken sick and failed to record the entry and therefore, when the Vincent application was presented, there being no adverse claim of record, the entry was allowed. Both local officers recommended the amendment asked for.

It does not appear in this case that at the date of making his timberculture application, Vincent intended to enter the tracts he now seeks to have his entry amended to, but that this was an afterthought when he learned that the land he applied for was covered by a prior entry. An application for land not intended to have been embraced within the original application can not be properly allowed as an amendment. Goist v. Bottum (5 L. D., 643); Christoph Nitschka (7 L. D., 155). Furthermore as the timber-culture law was repealed by the act of March 3, 1891 (26 Stat., 1095), the appellant can not now be allowed to make another timber-culture entry.

Your decision is affirmed.

COAL LAND-DISCOVERY-DECLARATORY STATEMENT-TRANS

FERREE.

MCGILLICUDDY ET AL. v. TOMPKINS ET AL.

A coal declaratory statement under section 2349 R. S., is void, if, prior thereto, no discovery of coal has been made on the land covered thereby.

An application to purchase coal land cannot be allowed, where it appears to be made in the interest of another who has already exhausted his rights under the law authorizing the sale of such land.

Secretary Noble to the Commissioner of the General Land Office, June 14, 1892.

This record involves the validity of the application by William H. Tompkins and Lyman Lamb to purchase, as coal land, under the act of March 3, 1873 (17 Stat., 607), certain described tracts aggregating 306.68 acres, located within the municipal limits of Rapid City, South Dakota. The township plat was filed February 18, 1880, and as stated by your office, the land in question was returned as agricultural.

On February 23, 1888, said applicants filed in the land office at Rapid City a coal declaratory statement for the N. of NW., the N. of NE. 1; the SE. of NE. and lots 1, 2, and 3, Sec. 36, T. 2 N., R. 7 E., excepting "that portion of the NW. of said Sec. 36, lying within the exterior north boundary line of the original townsite of Rapid City."

The applicants alleged that they had been in joint possession of said tracts since February 20, 1888; that they had "located and opened a valuable mine of coal thereon;" that they were developing said coal land, and mines; that they had expended fifty dollars in labor and improvements, and that said improvements consisted of a shaft house, and shaft four feet square and twelve feet deep, "sunk in the ground above the body or vein of coal."

On February 28, 1888, the local office rejected said filing "for the reason that by section 1946 Revised Statutes, U. S., sections sixteen and thirty-six are reserved for school purposes in Dakota." The applicants appealed, whereupon your office by letter dated August 21, 1888, reversed said action, returned said filing and accompanying papers, directed the same to be filed, and remitted any objections to entry by applicants to such time as they may undertake to "prove up and enter." Thereupon, August 28, 1889, the applicants filed the pending application ("affidavit at purchase") wherein they claimed the right under the act of 1873, supra, to purchase the N. of NW. the N. of NE. and lots 1, 2, and 3, of said section 36, and alleged that they had expended in developing coal mines on said tract, in labor and improvements the sum of $8650; that such improvements comprised "machinery, drills, steam engines, etc., $6650; expense of operating said machinery, fuel, water supply, laborers' wages in sinking a hole to the depth of

758 feet, $2000;" that they were in actual possession of said mines and that they "make the entry for our (their) joint use and benefit and not directly or indirectly for the use or benefit of any other party."

On the same day, August 28, 1889, protests against said application were filed by the judiciary committee of the Board of Education of Rapid City, and V. P. McGillycuddy and others.

These protests set out in effect that the land was not shown to be of the character contemplated by the act of 1873, supra, and that it was much more valuable for municipal purposes than for coal.

Thereupon a hearing, at which the parties appeared with counsel, was commenced before the local officers, October 3, and proceeded with upon different days until November 14, 1889, when it was concluded.

By their joint decision the register and receiver rejected said application for the reason that the land was not sufficiently developed nor satisfactorily shown to be valuable for coal, and for the further reason that by a written contract the applicants, for specified considerations, had agreed to transfer after entry or patent, a certain interest in the land to one M. H. Day, who had exhausted his right of coal entry.

The applicants appealed, whereupon your office by decision of May 26, 1890, affirming the action below, found the land "more valuable for agricultural and municipal purposes than for mining purposes of any kind," and also that the pending application should by reason of said agreement be dismissed as defective "irrespective of the question of the character of the land."

The applicants have taken an appeal from this decision and in support thereof counsel have been heard orally and upon brief. Counsel for protestants have in like manner been heard in opposition to said appeal.

By the act of February 22, 1889, (25 Stat., 676), sections sixteen and thirty-six were, upon her admission into the Union, granted to the State of South Dakota, and by its terms mineral land was excepted from said grant. The said State was so admitted by the President's proclamation of November 2, 1889.

The applicants' case, therefore, proceeds upon the theory that the land was prior to the State's admission, shown to be valuable for coal, and that being thus reserved from the grant it was subject to coal entry.

The land contained no outcropping or other surface indications of coal and none was discovered in the shaft described in the applicants' filing. Said filing was therefore properly found void by the local and your office, Section 2349 R. S.

The applicants' contention that the land was proved to be valuable for coal is based upon testimony showing the results of two borings made thereon with a diamond drill.

The first of said borings was begun in May, 1889, at about the center of the NW. of said section 36, and continued until July following,

when at a depth of about 750 feet the "drill core" disclosed a vein of bituminous coal some thirty-four inches in width. The second boring was then made at the center of the NE. of said section 36, where at a depth of 780 feet, a like "core" showing a vein of about thirty-six inches, was obtained in September, 1889. Cores of coal said to have come from said borings, cores showing other strata therein and different samples of coal and lignite are filed as exhibits in the case. Expert and other testimony tending to show that the coal cores filed as stated did not in fact come from said land, was introduced by the protestants.

The finding by the local and your office, touching the character of the land, and the sufficiency of the improvement thereof, was to the effect that the said borings, which constituted the sole development claimed by the applicants, were insufficient to prove the land valuable for coal or to warrant the entry applied for. Act of March 3, 1873, 17 Stat., 607, Sections 2347-8 Revised Statutes.

The specific allegations contained in the pending appeal set out in substance that your office erred in the finding thus outlined.

It will be unnecessary, however, for me to determine whether or not the land is "coal land" and liable as such to purchase under section 2347, supra, or whether or not the applicants by said boring have "opened and improved" thereon such "coal mine or mines" as would entitle them to entry under the act of 1873, supra, Secs. 2348 and 2349 R. S.

In the appeal here it is further alleged, that "the evidence given" did not warrant your office in rejecting the pending applications, and also that your said decision was "against" both the evidence and the law. But aside from these general statements, your finding, that the applicants had in fact made the said agreement with Day, is not assailed.

The said agreement is not in the record as the applicants at the trial, refused to produce it in evidence.

The testimony, however, shows that such agreement was made in the winter of 1888 and 1889; that it was in force up to and at the time of trial; that it was in writing and that by its terms the applicants agreed to transfer, after entry or patent, a certain interest in the land to Day, in consideration of his exploration thereof.

The improvements (drill, engine, boring etc), described and claimed by the applicants were in pursuance of said agreement, placed on the land by Day. Day, in like manner, supplied the labor and paid the expenses attending said borings, which were done under the personal supervision of a foreman employed by him. And the drill, engine, etc., used in said boring thereafter continued to be his property.

The applicants urge, however, that as said agreement was not made until long after and without Day's knowledge of their filing, it was sim ply an assignment of their right to purchase under Sec. 37 of the cir

cular regulating the sale of coal land, approved July 31, 1882 (1 L. D., 687). Sec. 37, supra, provides that

Assignments of the right to purchase will be recognized when properly executed. Proof and payment must be made, however, within the prescribed period, which dates from the first day of the possession of the assignor who initiated the claim. But said section does not authorize such assignment to be made to one who has exhausted the right of purchase under the act of 1873, supra, and to thus defeat the manifest purpose of that act by giving such person the benefit of more than one coal entry. Such assignment could not, therefore be recognized as "properly executed" within the meaning of section 37, supra.

When the applicants filed the pending application they were, to the extent of said agreement acting as agents for Day. Consequently, the entry now sought could not be, as alleged, for their sole use and benefit. Day testifies that in 1881, he made a coal entry for land in Charles Mix county, Dakota. If, therefore, the entry now asked for be allowed, Day for all practical purposes will have exercised a second time the right to purchase government coal land. This would be clearly at variance with the act of 1873, supra, which authorizes "only one entry by the same person or association of persons." Sec. 2350 Revised Statutes; Northern Pacific Coal Company. (7 L. D., 422).

To allow the pending application would, therefore, be in substance to authorize an entry in contravention of said statutory provision. It follows, I think, that for this reason the said application should be rejected as invalid.

The judgment appealed from is accordingly hereby affirmed.

DESERT LAND APPLICATION-ACT OF AUGUST 30, 1890.

LARRY LARSSON.

An application to enter desert land that is included within the existing desert entry of another is not a claim protected by the statute of August 30, 1890, and on the subsequent cancellation of said entry the limitation in acreage, imposed by said act, will restrict the applicant to three hundred and twenty acres.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, June 14, 1892.

On March 24, 1890, Larry Larsson made application to enter the S. and lots 1 and 2, and the unsurveyed part of section 23, T. 5 N. R. 36 E., at Blackfoot, Idaho, which was rejected because in conflict with prior desert land entry No. 660 for the same tract made by William B. Norway January 18, 1887, which was canceled March 3, 1891. On March 20, 1891, Larsson was permitted to file his application No. 1478,