The facts are as follows: James Crawford file pre-emption declaratory statement for the NE. 1 of NW. 4, N. of NE. 4 of Sec. 14, and SE. of SE. of Sec. 11 in T. 18 S., R. 7 W., N. M. M. Las Cruces N. M. land district, on April 8, 1885 (not on March 8 as stated by you), alleging settlement March 1st of same year.

On March 24, 1885, the Sierra Grande Mining Company located the said mill site No. 2, containing 4.9 acres survey "No. 532 A." situated in the SE. of SE.Sec. 11 same town and range in connection with the "Annie P" lode claim, located by said company in sections 20 and 29 same township and range. On July 3, 1885, said company filed ap plication for patent for the "Annie P" lode claim and said mill site No. 2.

On September 1, 1885, James Crawford filed protest against said application for patent alleging his prior settlement as to said mill site, and asking that the issuance of patent be stayed until his right to the SE. of SE. of said section 11 shall have been determined. On the 15th of same month he gave notice that he would offer final proof on his declaratory statement on November 2d following, and on October 29th the said mining company filed protest against said declaratory statement, accompanying the same by affidavits and exhibits, relating to its mill site claim.

On November 2, 1885, final proof was offered by Crawford (on usual blank forms) and the hearing of the said protest of said company and the taking of further proof, and proof as to said mill site claim was continued until March 5, 1886, and on January 18th following said continnance, said company filed a contest against said declaratory statement of Crawford, as to the several tracts covered thereby, and on January 25th Crawford was served personally with notice thereof and that the charge alleged in said contest was "fraud and non-compliance with law."

On March 5, 1886, the parties appeared with witnesses and counsel and testimony relating to the several matters in issue (and covering 650 pages) was taken, and the local officers upon consideration of the record and testimony, found that the entryman, Crawford, had wholly failed by acts of settlement, residence or improvement to comply with the law, or manifest good faith and they recommend his entry for cancellation, and further that the mill site No. 2 be passed to patent, from which said decision Crawford appealed to your office, and on May 2, 1889, you passed upon said case and found from the testimony substantially the laches referred to by the local officers, and that the facts proven "are not such as entitle Crawford to make payment and entry," but you do not think that fraud or bad faith is proven, and as Crawford had been in this country only six months and had testified that he thought he was making a sufficient compliance with law, you held his filing subject to his future compliance with law in the matter of residence and improvement, and coming to the consideration of the claim

of Sierra Grande Mining Company on its application for patent No. 272, embracing the "Annie P." lode and the Sierra Grande Mill site No. 2, you found that-" There appears no use or occupation of the mill site tract as contemplated by the statutes, section 2337 R. S. The mill site is used solely for the purpose of supplying water, through pipes to the company's claims, the Annie P. and others. This does not satisfy the statutes. Case of Charles Lenning (5 L. D., 190); Cyprus Mill Site (6 L. D., 706)" and rejected the application for patent and held it for cancellation to the extent of said mill site portion. From this decision the said company appealed to this Department.

The tract in controversy was included in the grant to the Texas Pacific Railroad Company by act of March 3, 1871, but by act of February 28, 1885, the grant was forfeited and the land restored to the public domain, subject to disposal under the general laws of the United States. Notice of this restoration was given by publication on March 25, 1885. I shall consider first the claim of Crawford:

The testimony in relation to his pre-emption filing shows the following state of facts: He had been in this country about six months prior to March 4, 1885, and had lived with his half brother, Thomas Inglis, adjoining Sec. 14, and on said day he purchased of one Foster Cain his interests in the E. of NW. and W. of NE. of Sec. 14 in said township and range with the improvements thereon-paying $50 consideration, and taking a quit claim deed therefor. The improvements consisted of a box-house, a well, two acres of breaking and an uncertain interest in some line fence. The house was twelve by fourteen feet. It had a shingle roof, dirt floor, one door, but no window and no fireplace or chimney; the well was sixteen feet deep; the breaking had not been cultivated for several years, and the fence was in poor condition and claimed by Inglis. On March 5, (not March 1st as stated), Cain gave possession of the premises; he left in the house an old wire bed spring and some empty boxes, but carried away from the well the windlass, rope and bucket. Crawford, on taking possession, by way of repairs, leveled the dirt floor of the house a little, covered up the well to keep his cattle and those of Inglis from falling into it, set a few posts in the fence where they were down, straightened up the wires and drove a few staples. These are substantially all the improvements that he claims to have made on the land and constitute his acts of settlement. In the matter of cultivation, he says that he re-plowed and sowed corn on the broken ground, but never cultivated it, and gathered no grain from it; it was uninclosed, and the cattle, that ran at large upon it destroyed the crop as it came up. In the matter of residence, the testimony as to his sleeping in the house is conflicting, but the preponderance shows that he only went to the house to sleep occasionally, generally taking some one with him, who would be convenient as a witness to testify that he had slept in the house. The carpenter who worked at Inglis' house, making repairs during a large part of May and

there, sleeping, eating and conCrawford testifies that on some

June 1885, says that Crawford lived ducting himself as one of the family. Sundays he took milk from Inglis and cold provisions, and went to the land and ate in the house, that he kept some canned meats, etc., there. He says he built one fire in the house, soon after he took possession, for the purpose of drying the floor and burning up the rubbish and shavings that Cain had left, but this is the only time that he ever built a fire in or about the house. He had no facilities for cooking, no stove or cooking utensils, no table or dishes, in fact no appliances for housekeeping. He claims to have kept his trunk and clothing at this house, but on April 2, when he wished to show his deed to the surveyor they went to Inglis' house and he there took it out of his trunk. The neighbors who visited Inglis' from time to time during the summer, testify that Crawford worked, ate and slept there, and in fact the testimony is overwhelming that he had no residence elsewhere.

Crawford and Inglis were partners in the cattle business. Inglis was to give him half the increase and furnish and keep him (“board and washing") and he was to have "a few dollars" as he wanted money, this to be taken into account at annual settlement. Crawford says:

In November we started to brand the cattle and we sort o' disagreed in regard to the money he had given me, so he told me he would give me so much a month for the time I had worked and put in my board and washing into it, and I said all right.

They settled for the time from January 1885 on this basis, and Crawford continued to live at Inglis' working by the month. He gives his occupation as that of "cow-boy." Cain was a "prospector"; he was going away and wanted to sell his improvements on his tract. Inglis and Crawford had been herding on it, and needed it as an annex to Inglis' ranch, not as a home for Crawford. They bought the improvements, evidently to keep the land open for grazing; they allowed Cain to take away the fixtures to the well and they put timber and earth over the top of it, because it was useless to them, and they made no improvements on the house because it was not intended that Crawford should live there. This is one of the badges of fraud attaching to this claim.

The testimony shows that this settlement, such as it was, was on the E. NW. and W. § NE. † of Sec. 14, and not on the land in controversy. When he had the survey made on April 2, 1885, he included the SE. of SE. of Sec. 11 and NE. † of NE. of Sec. 14, abandoning the south half of the land he bought of Cain. The NE. of NE. 4 of Sec. 14, is very rough, stony, poor land, with the exception of a small parcel of it; and Crawford hesitated about including it in the survey until informed by the surveyor that the SE. of the SE. of Sec. 11 would not be considered contiguous to the NW. } of NE. † of Sec. 14, and that to cover the tract on which the pumps were situated, and which he wanted, he would have to take in the rough "40 acres "; and then it was that he concluded to include it in his declaratory statement

so that he could cover the tract on which were the pumps and buildings of the mining company.

After the land was restored and after the company had filed on the mill site, Crawford filed on his tract alleging settlement March 1st aud it is very apparent that this was done to throw a cloud upon the mill-site claim. Crawford told a witness that he intended to hold it and get $20,000 from the company. Inglis did not testify in the case, he had evidently been using Crawford, as a mere tool to hold the Cain land for grazing purposes, and the changing of the tracts after the land was restored was a mere experiment, a matter of speculation purely, and this is another badge of fraud which attaches to the Crawford claim.

The well settled rule that "Ignorance of law will not excnse” can not be set aside in this case, besides "A pre-emptor who in the presence of an adverse claim elects to make final proof must abide the result thereof, and submit to an order of cancellation in the event that his proof fails to show compliance with the law." Hults v. Leppin (7 L. D, 483.)

This brings me to the consideration of the application for patent for the mill site and the protest of Crawford against the same. Crawford's declaratory statement having been disposed of the question of priority is settled, and it only remains to be seen whether under the statute and departmental regulations and rulings the Sierra Grande Mining Company is entitled to patent for the 4.9 acres of land located, surveyed and appropriated by it, as a mill site, in connection with the "Annie P." lode claim. There is no question as to the said company enjoying the use and occupation, for mining purposes, of a vein or lode, located, surveyed and called the "Annie P." lode, and that it has taken steps to obtain title thereto, and that the 4.9 acres fulfills the conditions of a mill site tract, if used as such in connection with said lode; but you decide that it is not being used as a mill site but "solely for the purpose of supplying water through pipes," etc. The company procured a deed from Dan Duncan for three acres of this land in 1881, and in that and following years, at a cost of $50,000 it placed thereon an engine and pump house, and placed a valuable engine and pumps therein, and erected houses for its engineers and pumpmen to live in, and surrounded the tract by a post and wire fence and from thence laid pipes to said "Aunie P." mine, to carry water to it. It is shown that the water thus carried is absolutely necessary to the operation of said mine, being used to operate its mill since 1882. When the land was declared forfeited and restored to the public domain, its deed from Duncan was rendered invalid, and it immediately proceeded under statutory provisions and the departmental regulations to procure a title from the government to the three acres and an additional 1.9 acre, and it substantially complied with the requirements necessary to procure a patent, but the substance of the matter is the use to which it applied the land.

The Charles Lennig case, supra, was fully discussed and followed by

Acting Secretary Muldrow in the Cyprus Mill site case supra. I quote from the latter case

In the case of Charles Lennig (supra) this Department held that said section 2337 contemplated the actual use or occupation by improvement or otherwise, for mining or milling purposes of the land; that under the second clause of said act the right to a patent of a mill-site depends upon the existence on the land of a quartz mill or reduction works; that under the first clause of said section it is not necessary that the land be actually a mill-site; that the use or occupation of the land for mining or milling purposes is the only pre-requisite to a patent; that the use of the land for depositing tailings or storing ores, or for shops or houses for his workmen, or for collecting water to run his quartz mill, .. would be using it for mining or milling purposes;' that the occupation for mining or milling purposes as distinguished from use, must be more than mere naked possession, and that such occupation must be shown by outward and visible signs of the applicant's good faith ;' also that where the applicant is not actually using the land he must show such an occupation by improvements or otherwise as evidences an intended use of the tract in good faith for mining or milling purposes.'

In the Lennig case it will be observed that Lennig purchased "that certain water right and water privilege" by which grant the water of a certain spring could be conducted by a ditch to land other than that of the proprietor and there used. Lennig had no right to use or occupy the land except to cut and maintain the ditch, he could not erect any structure thereon, his right was a mere easement in the water and the right to flow it off the land, and it was held that this was not patentable as a mill-site. In the Cyprus mill-site case the Frisco Mining and Smelting Company took possession of a spring that had formerly sup plied the inhabitants of the town of Bradshaw with water and dug it out, encased it with masonry, furnished it with a "two hand" pump and horse pump, and carried the water away to be used by its employes for domestic purposes in houses, stables etc. It was held that this use of the water for mining purposes" was too remote, to entitle the company to a patent for the land as a mill-site. It is certainly very appar ent that in the case at bar the claimant presents an entirely different state of facts than those presented in either of those cases. Here we find actual occupation of the land, with lasting and valuable improvements. It is true the company consumes only the water, but it occupies and uses the land in connection with its lode mine, and such use is necessary to the operating of the mine.

Having considered the record and testimony in the case, I conclude that the terms and conditions of the first clause of section 2337 R. S. are fully satisfied so far as the use to which this land is applied is in issue, and in so holding I am supported by the cases above mentioned as well as by the ruling in the case of Le Neve Mill Site (9 L. D., 460). Your decision is accordingly reversed. The pre-emption filing of Crawford is canceled and his protest against said mill-site dismissed.