can not undertake to re-open the case on a mere allegation that the decision was erroneous. The amount of routine work is already great, the claims of those who are here in regular order are pressing, and to open this case and re-examine it on its merits would be to invite applications for re-examination of all cases decided since 1886, in which errors of law might be alleged. Such an undertaking can not be assumed. The Department has repeatedly refused such applications. State of Kansas (5 L. D., 243); A. T. Lamphere (8 L. D., 134). See also State of Oregon (9 L. D., 360).

The attorney urges that the decision of the Department was inadvertent. There is no proof of this allegation, and the presumption is to the contrary. Furthermore, the record shows the issue was clearly presented.

The application is accordingly dismissed. This disposition of the case renders it unnecessary to consider the cases cited by applicant as at variance with the decision of 1886, supra.

MINING CLAIM-EQUITABLE ADJUDICATION.

SILVER KING QUARTZ MINE.

A mineral entry may be referred to the board of equitable adjudication where the published notice of application is not as explicit in the matter of description as the notice posted on the claim.

Acting Secretary Chandler to the Commissioner of the General Land Office, September 3, 1890.

In the matter of mineral entry No. 59, made July 20, 1887, for the "Silver King Quartz Mine," lot 37, T. 10 N., R. 1 E., Los Angeles, California, the Oro Grande Mining Company appeals from your office decision of December 12, 1888, requiring republication (and posting) of the application for patent to said claim.

The order appealed from was made for the reason that in the published notice of the application, upon which the said entry was allowed, the description of the course and distance of the line (shown by the survey), connecting the claim with the public surveys, had been omitted.

It appears that on September 21, 1885, Charles T. Bradley and others filed an application for patent for said Silver King mine and also for the adjoining Calico Queen claim; that the latter was, on November 19, 1885, "adversed;" and said application, so far as it related to the Calico Queen), was withdrawn June 18, 1887; that during the fall of 1885 notice of the Silver King application, showing the exterior boundaries and location of said claim, with reference to those adjoining, was duly published, and was posted in the local office, together with the official plat showing said connecting line, on the claim.

In the similar case of Mimbres Mining Company (8 L. D., 457), where a description of the line connecting the claim with the public surveys had been omitted from the published notice of application, the Department held that, if the same is not as explicit in the matter of description as the notice posted on the claim, such defect is properly chargeable to the register, and may be cured by reference to the board of equitable adjudication. The case at bar is in my opinion clearly within the rule stated. The entry in question will therefore be so referred. The decision appealed from is modified accordingly.

HOMESTEAD ENTRY-COMMUTATION-EQUITABLE ADJUDICATION.

SUSIE COREY.

The right of commutation depends upon prior compliance with the homestead law. Where a homesteader in good faith cultivates and improves his land, but dies without having established residence thereon, the widow may submit proof showing her residence on the land, and connection with the claim, after the death of the entryman, with the view to an equitable confirmation of the entry.

An appeal regularly taken under the rules of practice should not be dismissed.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, September 3, 1890.

I have considered the case of Susie Corey, on appeal from your office decision of February 16, 1889, dismissing her appeal from the decision of the local officers rejecting her final proof of homestead entry for SW. 1, Sec. 12, T. 138 N., R. 78 W., Bismarck, North Dakota, land district.

Her late husband, Emer N. Corey, deceased, made homestead entry for this land on June 8, 1883. He died December 12, 1886, and the claimant as his widow, offered final proof on October 2, 1888, which was rejected by the local officers, from which decision she appealed and your office on February 16, 1889, dismissed her appeal from which decision she again appealed.

It appears from the record that her appeal was regularly taken in accordance with the rules of practice; there was no motion to dismiss it and the decision dismissing it was erroneously made.

The testimony shows, that Corey in his lifetime, made said entry while he was bolding the office of clerk of the United States district court for the sixth judicial district of Dakota Territory; that he went upon the land in 1883 and caused valuable improvements to be made thereon and cultivated the land each year up to his death; that he intended to make his residence on the land, and his improvements and cultivation were to that end, but he retained his residence in Bismarck until his death.

In April, 1887, the claimant Susie Corey moved with her children onto the land and has since made her residence thereon. Emer N. Corey was a private in Co. A, 179th Ohio Volunteer Infantry, but the evidence. does not show the length of time for which he is entitled to credit by reason of military service.

While your decision dismissed her appeal, you passed upon the merits of the case and allowed her to commute the entry under section 2301, U. S. Revised Statutes.

By the uniform decisions of this Department-" The right of commutation depends upon prior compliance with the homestead law." Saml. H. Vandivoort (7 L. D., 86); Greenwood v. Peters (4 L. D., 237). Frank W. Hewitt, 8 L. D., 566.

It is quite clear that the entryman during his lifetime did not make a legal residence upon the land, and his improvements, though valuable are not the equivalent of residence. His widow, however, estab

lished, and has maintained a residence since April, 1887.

Considering all the circumstances of the case, the apparent good faith of the entryman and this claimant, the fact that she is entitled to some credit for the military service of her late husband, and the neglect to show the length of time for which such credit should be given, there being no adverse claim, the claimant will be allowed ninety days from notice hereof within which to make further proof, showing all the facts as to her connection with the land since October, 1888, also the length of time for which she is entitled to credit by reason of the military serv ice of her late husband, and if such additional proof, with that on file, shows a substantial compliance with law, the proof, in the absence of protest or adverse claim, will be accepted, certificate issued, and the entry referred to the board of Equitable Adjudication for its consideration under the appropriate rule. See E. M. Dronberger (10 L. D., 88), also Rule 33-Rules of board of Equitable Adjudication (10 L. D., 503). Your decision is modified accordingly.

MINING CLAIM-SURVEY-CIRCULAR OF DECEMBER 4, 1884.

PLEVNA LODE.

The surface right is an adjunct of the lode claim, and cannot extend beyond the point where the lode intersects the exterior line of a senior location.

Acting Secretary Chandler to the Commissioner of the General Land Office, September 3, 1890.

This is an appeal by the Ontario Silver Mining Company from your office decision of December 10, 1887, requiring the survey under which the Ontario Silver Mining Company made mineral entry No. 1,161, November 17, 1885 for the Plevna lode mining claim situated in

the Ointah mining district, Summit county, Salt Lake City land district, Utah to be amended. The "Plevna" claim was located May 19, 1885, surveyed May 21, 1885, and the survey approved June 9th following. Application for patent therefor was filed July 27, 1885, and publication began five days thereafter. Said survey overlaps on its easterly end the "Clara" lode claim, which was located June 28, 1872.

You held that in making said survey, the principle announced in circular "N," approved December 4, 1881, (3 L. D., 540, had been disregarded, and directed that "within that portion of the 'Plevna' survey, to which the claimant's rights are restricted by said circular, it must have a new survey of its claim made, the end lines of which must be parallel."

Section one of said circular provides that the rights granted to locators are restricted to locations on veins, lodes, or ledges, situated on the public domain, and directs that when the survey conflicts with a prior valid lode claim or entry, and the ground in conflict is excluded, the claimant's right to the lode claimed terminates where the lode in its onward course or strike intersects the exterior boundary of such excluded ground and passes within it." Section two of said circular provides further, that "the end lines of survey should not, therefore, be established beyond such intersection, unless it should be necessary so to do for the purpose of including ground held and claimed under a location, which was made upon public land and valid at the time it was made."

In the present case no part of the space in conflict is embraced in the "Plevna" application or entry, but said space is expressly excluded therefrom. From the survey as it now stands, the lode, which is presumably in the center of the claim, strikes the exterior line of the “Clara” lode claim, at a point westerly of the line surveyed as its easterly end line.

As was held in the similar case of the Engineer Mining and Developing Company (8 L. D., 361), the surface right, being simply an adjunct to the lode claim, could not extend beyond the termination of such claim, to wit: the point where the lode intersects the exterior line of the senior location.

It was, therefore, proper to require the end lines of the survey to be re-adjusted, so as to accord with the requirement of the circular referred to.

The decision appealed from is affirmed.

LARGEY ET AL. v. BLACK.

Motion for review of departmental decision rendered February 13, 1890, 10 L. D., 156, denied by Acting Secretary Chandler, September 4, 1890.

PRACTICE-CERTIORARI-RULE 84.

PETERSON v. FORT.

An application for certiorari will be denied if not made under oath.

Acting Secretary Chandler to the Commissioner of the General Land Office, September 4, 1890.

Catherine Peterson by her attorney has filed an application for an order directing your office to certify to this Department the record of proceedings in the case of Catherine Peterson v. George W. Fort, involving homestead entry No. 11,800 made by Minnie F. Conrad (nee Fort) for the E. of NW. 1, NW. of NW. Sec. 20 and NE. † of NE. Sec. 19 T. 32 N., R. 15 W., Niobrara, Nebraska land district. She sets forth in said application that she filed in your office a good and sufficient appeal from a certain decision rendered by you adversely to her in said case, and that you denied said appeal because not filed in time.

Rule 83, rules of practice, provides that parties may apply to the Secretary for an order directing the Commissioner to certify proceeding to him, in certain cases and rule 84, provides that:

Applications to the Secretary under the preceding rule shall be made in writing under oath, and shall fully and specifically set forth the grounds upon which the application is made.

The application before me is not made "under oath" and can not therefore be considered as the basis for the writ of certiorari asked for. The application is therefore denied.

RAILROAD GRANT-MINERAL LAND.

CENTRAL PACIFIC R. R. Co. ET AL. v. VALENTINE.

The discovery of the mineral character of laud at any time prior to the issuance of patent therefor, or certification where patent is not required, effectually excludes such land from a railroad graut which contains a provision excepting all mineral lands therefrom.

Secretary Noble to the Commissioner of the General Land Office, August 30, 1890.

The lands involved in this case are described as lots 1, 2, 3 and 4, and the SE of the SE4, Sec. 33 T. 15 N., R. 9 E., Sacremento, California. The tracts are within the primary limits of the grant to the Central Pacific Railroad Company, under the acts of July 1, 1862, (12 Stats., 489), and July 2, 1864 (13 Stats., 356), being situated less than five miles from the line of said company's road as definitely located and constructed. The public surveys were extended over them in 1865. The official survey of the township was approved by the surveyor-general December 26, 1865, and the township plat was filed in the local office