HOMESTEAD-ADJOINING FARM ENTRY.

THOMAS B. HARTZELL.

The right to make an adjoining farm entry cannot be invoked for the purpose of securing one hundred and sixty acres to one who "owns" a less amount which was entered under the general homestead law.

Contemporaneous and uniform executive construction should be regarded as conclusive where there is doubt as to the exact intendment of a statute.

Acting Secretary Muldrow to Commissioner Sparks, September 3, 1886.

I have considered the appeal of Thomas B. Hartzell from your decision of May 21, 1885, rejecting his application to make an adjoining farm entry of certain tracts of land in the Los Angeles, California, district.

It appears that Hartzell, on November 9, 1883, made homestead entry of the N. of NE. 4 of Sec. 18, T. 14 S., R. 1. W., S. B. M., in said land district, on which entry final certificate was issued December 21, 1883. On April 13, 1885, said Hartzell made application to be allowed to make "an adjoining farm entry" of the SW. 4 of SE. 4 of Sec. 7, and the NW. of NW. of Sec. 17, same town and range. This application was rejected by the local officers and on appeal the rejection was affirmed by you.

Claimant states that at the time he made his homestead entry in 1883 the land he now seeks as an "adjoining farm entry" was within the withdrawal for the benefit of the Texas Pacific Railroad Company, and he was thereby prevented from entering the same; but that, with the consent of that Company, and the expectation of procuring title from it, he improved and cultivated the land; and inasmuch as said railroad grant has been forfeited and he can not procure title from said company for the land, he makes the present application.

I have caused the records of your office to be examined, and they show that the land now sought to be entered was never within the withdrawal for the said railroad company, and hence was subject to entry at the time of the original homestead entry of Hartzell was made in 1883.

You reject his present application on the ground that in making entry in 1883 he exhausted his homestead right. In this it is strenu ously insisted by counsel that you erred.

The first section of the act of May 20, 1862, conferring the general homestead right, also contained the provision under which the right to make an adjoining farm entry is claimed. These provisions are embodied in Section 2289 of the Revised Statutes, and the clause relating to the adjoining entry states that, "Every person owning or residing on land may under the provisions of this section enter other land contig. uous to his land, which shall not, with the land so already owned and occupied, exceed in the aggregate one hundred and sixty acres."

In relation to the general homestead right, granted by the act of May 20, 1862, it was said by Acting Secretary Muldrow, in the case of Hiram E. Thornton, 3 L. D., on page 511:

"That act (of May 20, 1862,) provided that any one qualified should 'be entitled to enter one quarter section or a less quantity' of unap propriated public land. It is to be observed that here is no expressed restriction upon the right of entry, so far as the numbers thereof are concerned, but there is the emphatic declaration that the party should be entitled' to make entry to the extent of one quarter section and no more. Yet the Department, viewing the context of the whole act, construed the above general provision, as to the right of entry, to mean that but one entry could be made, whether for a whole quarter section or less. This rule, established shortly after the passage of that act, has been adhered to consistently and persistently ever since."

In harmony with this rule, the Department has uniformly held that the land "owned" by a party seeking to make an adjoining farm entry must be "owned" otherwise than under the homestead law, for the simple reason that to hold otherwise would be to give to such party more than one homestead right under said act. See cases of Savage v. Weymouth, and ex parte W. C. Thomas, (12 C. L. O., 120-1). This contemporaneous and uniform executive construction is not to be disregarded, but should have the same force and effect as the statute itself. Brown v. United States (113 U. S., 568).

Congress, by implication, recognizing and acquiescing in the above construction of the homestead law, has by statutory enactments established some exceptions to the general rule. The first of these, found in Section 2306 of the Revised Statutes, is the result of legislation in 1872 and 1873, and makes an exception in favor of those who were in the military or naval service of the United States. It does not appear that Hartzell was in such service and he cannot avail himself of said section. The next exceptions are made by the acts of March 3, and July 1, 1879 (20 & 21 Stats., pp. 472 and 48, respectively). These two acts provide in substance that where a person has taken a homestead within the limits of any railroad grant, and was by existing law restricted to eighty acres, he might enter, under the homestead laws, an additional eighty acres, adjoining the original entry. But the provisions of these acts cannot be invoked to aid Hartzell's case, because (1) the land embraced in his original homestead entry, as shown by the records of your office, was not within railroad limits: nor (2) was he at the time of said entry restricted by existing law to the entry of only eighty acres and (3) said acts only apply to such persons as had "taken a homestead," and not to those who might thereafter take such homestead, as did Hartzell in 1883, four years after the passage of the

acts.

On May 6, 1886, Congress passed another act in relation to this sub. ject, making therein no new exception to the general rule, but only dispensing with cost of patent and with proof of settlement and cultiva

tion on the additional entries allowed under the two acts of 1879, provided the entryman had made final proof of settlement and cultivation under the original entry.

I therefore find no error in your said decision and affirm the same.

COAL LAND-PROOF AS TO THE MINERAL CHARACTER OF LAND.

COMMISSIONERS OF KINGS COUNTY v. ALEXANDER ET AL.

The proof of the mineral character of land must be specific and based upon the actual production of mineral.

It is not enough to show that adjoining lands are of mineral character, but it must be shown as a present fact that the fands are mineral.

Secretary Lamar to Commissioner Sparks, September 4, 1886.

I have considered the case of the Commissioners of Kings County, Washington Territory, v. William J. Alexander, Joseph Thiel, Charles A. Berger, John Geehan and Alexander Laird, as presented by the appeal of the former from the decision of your office, dated October 3, 1884, sustaining several coal entries made by said entrymen.

The record shows that Alexander made coal entry No. 61 of Lot 5, N. of the SW. and SE. 4 of the SW. of Sec. 16, T. 24 N., R. 4 E., on April 6, 1883; that Joseph Thiel made coal entry No. 62 of Lots 1, 2 and W. § of the NW. of Sec. 16, T. 25 N., R. 4 E., on April 7th, same year; Charles A. Berger made coal entry No. 63 of Lots 4, 5, 6 and NW. † of the SW. of Sec. 16, same township and range, on April 7, 1883; that John Geehan made coal entry No. 64 of Lot 3, Sec. 16, same township and range, on April 9, 1883, and that Alexander C. Laird made coal entry No. 65 of Lots 3, 4 and S. of SW. of Sec. 16, T. 24 N., R. 4 E., Olympia land district, W. T.

The above entries were made under Section 2347 of the Revised Statutes. The lands covered by said entries are in Section 16 of townships 24 and 25, range 4 east. Allegations having been filed by said Commissioners that said lands are reserved for school purposes; that they are of great value on account of their proximity to the City of Seattle, and that they are not mineral land, your office on December 21, 1883, directed the local land officers to order a hearing to determine the character of the land, whether mineral or not.

February 20, 1884, was set for the hearing, at which all parties in interest appeared by counsel and offered testimony. On April 3, 1884, the district officers transmitted the testimony without rendering any opinion thereon. Your office, however, on October 3, 1884, considered the evidence and found that the weight of the testimony, as to the dip, strike and angle of inclination of the surrounding veins, mines and croppings, together with the invariable similarity of the incasing strata to that discovered by the shaft, established that the coal deposit extended

under the lands in question, and that they should be classed as coal lands; and held that said entries should remain intact.

The record is exceedingly bulky, much of the testimony offered is irrelevant, and the opinions of some of the witnesses claiming to be experts are in direct conflict. The testimony shows that, although one shaft has been sunk ninety feet deep, no coal has been found upon said lands. Indeed, counsel for the entrymen concede this fact, but contend that the preponderance of the testimony shows that the coal measures extend under these lands, and therefore their coal character is estab lished so as to render them subject to entry under said Section 2347.

It is clear that if said lands are not mineral, they are not subject to entry under said section. It is true that the entrymen have made affidavit, among other things, that they are well acquainted with the character of the land applied for and with each and every legal subdivision thereof, having frequently passed over the same; that their knowledge is such as to enable them to testify understandingly with regard thereto; that said lands contain large deposits of coal, and are chiefly valuable therefor, but it nowhere appears from the testimony of the witnesses that any coal has been actually found upon the lands covered by said entries.

The lands are in close proximity to the city of Seattle and the evidence shows that they are valuable by reason thereof. It is a significant fact that not one of the entrymen appeared at the hearing and gave testimony concerning the character of the land, or their means of knowl edge by which they were enabled to make the affidavits above referred to. Aside from the testimony offered by the protestants, the evidence submitted by the counsel for the entrymen shows that their opinion is based upon a mere theory that coal will be found, if the shaft is sunk deep enough. But it has been repeatedly held by this Department that the proof of the mineral character of land must be specific and base upon the actual production of mineral; that it is not enough to show that neighboring or adjoining lands are mineral in character, and that the lands in controversy may hereafter develop minerals to such an extent as to show its mineral character, but it must be shown as a present fact that the lands are mineral, and this must appear from actual production of mineral and not from a theory that the lands may hereaf ter produce it. Hooper v. Ferguson (2 L. D., 712); Dughi v. Harkins (ibid., 721); Roberts v. Jepson (4 L. D., 60); Cleghorn v. Bird (ibid., 478); Lientz et al. v. Victor et al. (17 Cal., 272); Alford v. Barnum et al. (45 Cal., 482).

Since the evidence shows that said land is not mineral in character, it will be unnecessary to consider the question whether the reservation for school purposes for the benefit of said Territory withdraws from mineral entry those lands in school sections not known to be mineral at the date of the filing of the township plat thereof in the local land office. While it is true that if the lands applied for are clearly mineral

in character, the mere fact of their close proximity to a city would be no reason for refusing an entry under the mining laws, yet the fact of the increased value of such lands, by reason of their location, may ac count for an attempt to acquire title to the same under the mining laws, when their mineral character is not shown.

After a careful examination of the record, it is evident that said entries were not made in accordance with law.

Said decision of your office is accordingly reversed, and you will please cause said entries to be canceled.

HOMESTEAD—ADDITIONAL ENTRY-ACT OF MAY 6, 1886.

CIRCULAR.

Commissioner Sparks to registers and receivers, July 26, 1886. Your attention is called to the following act of Congress and instruc tions thereunder:

AN ACT to protect homestead settlers within railway limits and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all homestead settlers on public lands within the railway limits restricted to less than one hundred and sixty acres of land, who have heretofore made or may hereafter make the additional entry allowed either by the act approved March third eighteen hundred and seventy-nine, or the act approved July first eighteen hundred and seventy-nine, after having made final proof of settlement and cultivation under the original entry, shall be entitled to have the lands covered by the additional entry patented without any further cost or proof of settlement and cultivation.

Approved May 6, 1886.

1. The acts of March 3 and July 1, 1879, provide that homestead settlers who make additional or new homestead entries under authority thereof, are required to reside upon and cultivate the land embraced in such additional or new entries for at least one year.

2. The present act dispenses with the requirements of residence and cultivation upon and of the tracts embraced in additional entries made under the former acts. Such additional entries can be made only upon tracts "adjoining the land embraced in the original entry."

3. The requirement of residence and cultivation is not dispensed with in respect to new entries made under the acts of March 3 and July 1, 1879.

4. In order to entitle a homestead entryman to an additional entry under the act of March 3 or July 1, 1879, and to a patent for such addi tional entry under this act, his original entry must be a valid, bona fide entry, and the proofs presented in support thereof must be accepted by this Office.

5. You will, therefore, in no case issue a final certificate on the additional entry until you have been advised by this Office that final proof