full possess on of all the facts in the case. In regard to the alleged want of compactness in the form of the entry, it will be impossible to make the entry in more compact form, except by the relinquishment of certain portions, to do which would be a total loss, for the reason that there are no vacant, unoccupied public lands adjoining the lands in this entry, as I am informed and believe. I know there are none which can be irrigated and reclaimed.

In regard to the allegation that the proof was made after the expiration of the statutory period, I have this to say. Either late in the year 1883 or early in the year 1884, I was called upon by the Cheyenne land office to show cause why my said entry should not be canceled for my failure to make proof and final payment within the statutory period. Thereupon I filed in said land office my affidavit setting forth the reasons which had prevented me from fully reclaiming said land within said period. This affidavit, by letter dated February 25, 1884, was duly transmitted to the Hon. Commissioner of the General Land Office at Washington, D. C., and proved to be a satisfactory explanation of my said failure. Thereupon on or about August 20, A. D., 1884, I filed in said Cheyenne Land Office the final proof depositions of myself and my two witnesses. These depositions were not at said time received or acted upon by the register and receiver of said Land Office, but under date of August 20, 1834, and with letter of that date, were transmitted by the register of said Land Office to the Hon. Commissioner of the General Land Office at Washington, D. C., for his instructions. Said final proof depositions were received by the Commissioner of the General Land Office, and having been examined by him, were under date of August 30, 1884, by letter 'C' Vol. i, Page 372, of L. Harrison, Assistant Commissioner, returned to register and receiver at Cheyenne, Wyoming, with instructions to permit me to complete my said entry, which I accordingly did, on the 8th day of September, 1884.

Four questions naturally arise in the determination of this case. 1st, Ought the entry be canceled because, as admitted in the affidavit, Hunton told his brother about the time he made his final proof that he would let him have a half interest in the land when he had perfected his title, in payment of the four thousand dollars loaned or advanced to him by his brother and expended in the reclamation of the land? I think this question should be answered in the negative. The first section of the act of March 3, 1877 (19 Stats., 377), provides:

That it shall be lawful for any citizen of the United States, or any person of requisite age, who may be entitled to become a citizen, and who has filed his declaration to become such' and upon payment of twenty-five cents per acre-to file a declaration under oath with the register and the receiver of the land district in which any desert land is situated, that he intends to reclaim a tract of desert land not exceeding one section, by conducting water upon the same, within the period of three years thereafter. Provided however that the right to the use of the water by the person so conducting the same, on or to any tract of desert land of six hundred and forty acres shall depend upon bona fide prior appropriation: and such right shall not exceed the amount of water actually appropriated, and necessarially used for the purpose of irrigation and reclamation: and all surplus water over and above such actual appropriation and use, together with the water of all, lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights. Said declaration shall describe particularly said section of land if surveyed, and, if unsurveyed, shall describe the same as nearly as possible without a survey. At any time within the period of three years after filing said declaration, upon making satisfactory proof to the register and receiver of the reclamation of said tract of land in the manner aforesaid, and upon the payment to the receiver of the additional sum of one dollar per acre for a tract of

land not exceeding six hundred and forty acres to any one person, a patent for the same shall be issued to him. Provided, that no person shall be permitted to enter more than one tract of land and not to, exceed six hundred and forty acres which shall be in compact form.

There is nothing in this act to preclude a sale of the land after the consummation of an entry.

The regulations of the Secretary for the guidance of the Commissioner in the observance of the statute (5 L. D., 708), among other things provide:

Desert land entries are not assignable, and the transfer of such entries, whether by deed, contract, or agreement, vitiates the entry. An entry made in the interest or for the benefit of any other person, firm, or corporation, or with intent that the title shall be conveyed to any other person, firm, or corporation, is illegai.

It will be observed that the first clause of the regulation has reference only to the transfer of the entry.

Accepting as a fact that a transfer of the entry is violative of the statute, as well as the instructions, and will not be tolerated, yet the affidavit which contains the admitted facts shows that there was no actual transfer, and I am impressed with the belief that the entrymen intended no wrong, but desired only to repay his brother for advances made him to aid him in the reclamation of this tract, so that I am loath to impute bad faith to him, and presuming honest intentions, I think that this clause needs no further consideration to show that there has been no violation thereof.

2d. Was the "entry made in the interest or for the benefit of any other person, etc., or with the intent that the title should be conveyed to any other person, firm, or corporation." On this point the affidavit is positive, and its truth being admitted, it is only necessary to refer to it. He says: "I made the entry in good faith for my own exclusive use and and benefit." Finding that its reclamation would cost a great deal more than he had anticipated, after expending $600 of his own money, he was compelled to borrow $4,000 from his brother.

The statement of the entryman impresses me as frank, honest, and manly, and I think no one who reads that portion of the affidavit will come to any other conclusion than that the entryman made this entry for his own benefit, but from a desire to pay his brother the money which he had borrowed of him, he was willing to deed him one-half of the land. It may be that the undertaking was beyond his means and that the law will not uphold the entry by a poor man of such large tracts upon borrowed capital to work a reclamation, and when irrigation of the tract is complete and the certificate issued, deed a portion thereof in satisfaction of the debt, or to accomplish indirectly what is directly prohibited, but in this case no such transfer has been consummated and I can not believe if the entryman had intended to violate the law in this respect that he would have been so frank and open about it. Usually frauds are not perpetrated in that way.

3d. Has the entryman complied with the law in the matter of compactness of entry?

In your holding this entry for cancellation on the ground that the entry was not sufficiently compact, you seem to have been guided by a regulation formerly in force in your office, which provided that "in no case where the full quantity of six hundred and forty acres is entered will the side line on either side be permitted to exceed one mile and a quarter."

In the case of Francis M. Bishop (5 L. D., 429), Secretary Lamar eliminated this provision of the regulation as being in conflict with the spirit of the law providing for desert land entries; that it operated as an obstruction, rather than an aid to its execution.

It is impracticable to establish inflexible rules which shall govern the shape or form of an entry. Each case must depend upon the circumstances surrounding it and whether an entry should be regarded as sufficiently compact to answer the requirements of the law must depend largely upon the nature and location of the land, its means and facilities for irrigation and the rights of adjacent and surrounding entry

men.

In the case of William Thompson (8 L. D., 104), the question of compactness is discussed at some length, and many cases cited where entries have been allowed, although the land entered was quite as objectionable so far as compactness is concerned as in the case now under consideration.

James S. Love (5 L. D., 642) entered 173.44 acres, and his entry was a mile in length. It was held for cancellation by your office because not compact Acting Secretary Muldrow reversed the decision on appeal, and held that it appeared of record that the lands immediately adjoining the entry

have all been entered under the desert land law by other parties so that there (is) no way of rendering said entry more compact than it is and still retain the same quantity of land. The case is precisely like that of Ann E. Miller, decided by this department May 22, 1886. In that case the entry was a mile long and quarter of a mile wide, and the adjoining lands were all appropriated by other persons, and her entry was allowed to stand.

While the decisions of this Department have not been uniform upon the question of what should be considered a compact entry, within the meaning of the statute, yet they have invariably been liberal in the construction of the law, where the entryman has acted in good faith in making his entry and in reclaiming the land, and especially where, as in this case, the surrounding land has all been entered and the rights of other entrymen have not been invaded or molested. This entry is a mile and three-quarters in length; its greatest width being one mile, diminishing north and south from the center to one half mile at the northern extremity and one-fourth at the southern. No suspicion of the lack of good faith can be attached to the entryman; he has fully

reclaimed the land, at an expense of four thousand dollars, and has made valuable improvements thereon, and as the entry can not be reformed without loss to the entryman, it will be held to meet the requirements of the statute in relation to compactness.

4th, Should the entry be canceled because the claimant did not submit his proof within the three years provided for in the statute?

I think not. The admitted facts fully explain the cause of the delay and while it is the repeated holdings of the Department that it has no power to extend the statutory time within which the proof shall be sub. mitted to this class of cases, yet where good faith is shown in the matter of reclamation and no adverse interests have attached, entries made out of time have been authorized and upheld in numerous cases. Martha W. Fisher, 9 L. D., 430; Edward C. Simpson, 9 L. D., 617; George W. Mapes, 9 L. D., 631; George F. Stearn, 8 L. D., 573.

It appearing to my satisfaction that the entryman has acted in good faith, that he was allowed to make final proof after the time prescribed by the statute (the proof in other respects being satisfactory), and there being no adverse claim, the entry will be submitted to the Board of Equitable Adjudication for confirmation.

The decision of your office is accordingly modified.

COAL DECLARATORY STATEMENT-SUIT TO VACATE PATENT.

JAMES D. NEGUS ET AL.

One who has had the benefit of a coal declaratory statement is disqualified thereby to enter under a second filing.

A coal declaratory statement, offered during the pendency of a previous application to file made for the benefit of the same applicant, though in the name of another, confers no right as against an intervening adverse claim.

An applicant for the preference right to purchase coal land under section 2348 R. S., must be in actual possession of the land when he applies for such right, and the labor expended and improvements made must be such as to clearly indicate his good faith.

Suit to set aside patent will not be advised by the Department in the absence of a specific showing of facts sufficient to justify such action.

Secretary Noble to the Commissioner of the General Land Office, July 12, 1890.

By letter dated September 21, 1886, your office transmitted (with other papers) for consideration by this Department the petition of James D. Negus and Thomas C. Clark, by James D. Negus his attorney in fact, filed March 2, 1883, asking that the patent issued to Jesse Bell for the SE. of Sec. 7, and to John Bell for the SW. of Sec. 8, T. 21 N., R. 116 W., Evanston, Wyoming, "be recalled or proceedings tuted to cancel them" and also the separate petitions of Thomas W. B.

insti

Hughes and Orlando W. Joslyn each, by James D. Negus attorney in fact, filed November 24, 1884, for the institution of suit "in the name of the United States to cancel" the patents issued respectively to William F. Bechel for the SE. of said section 8, and to Edgar M. Morseman

for the NE. of Sec. 17 in the same town and range.

The said petitions although addressed to the Department were filed and have been altogether with the accompanying and additional papers considered in your office where counsel for the petitioners and for the patentees have been heard orally and upon brief.

By the said letter of September 21, 1886, whereby the said patents are sustained, your office sets out that "all papers bearing upon the matter including the contest cases of Abner G. McDaniel v. William Bell, James D. Negus v. Alfred G. Lee, and Thomas C. Clarke v. James H. Johnson, which are referred to by counsel "for petitioners" have been forwarded "informally and without scheduling" to the end that the facts may be fully before the Department.

The record in the said case of McDaniel v. Bell was (in response to a letter from counsel for the former) by letter dated November 17, 1887, returned by the Department to your office for appropriate action.

Thereupon your office on January 21, 1888, sustained the cash coal entry of McDaniel for the NE. 4 of section 18 in said township 21. This action was affirmed by the Department on July 1, 1889 (9 L. D., 15), when the accompanying record was returned for the files of your office. Sundry papers relating to the said case of Clark v. Johnson involv. ing the SE. of NW. of said section 8, and to the said case of Negus r. Lee involving the SE. of NE. of said section 7, are with the pend

ing petitions.

The plat showing the public survey of said township 21, was filed in the local office on April 7, 1882.

On April 25, 1882, the said Morseman, Bechel, John and Jesse Bell made respectively coal cash entries (upon which said patents are based) at $20 per acre, (Sec. 2347 R. S., Act of March 3, 1873, 17 Stat., 607), for the several quarter sections heretofore described.

Subsequently to the date of said entries the said petitioners respectively applied to file certain coal declaratory statements in conflict therewith.

These filings were offered (apparently by Negus) at the local office in manner following:

Joslyn, June 3, 1882, W.

Hughes, June 3, 1882, N. Į SE.

June 3, 1882, S.

1882, S. NE.

NE.

and W. SE. of said Sec. 17, and S. NE. of said Sec. 8, Clark, SW. of said Sec. 8, Negus, June 5, and N. SE. 1 of said Sec. 7.

NW. and N.

All of said filings were rejected at the local office by reason of conflict with said cash entries.

Appeals from this action were respectively filed by the petitioners in the local office on July 3, 1883, from whence they were transmitted to

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