Your office, by letter of May 7, 1883, reversed said decision, allowed Kurth to purchase under the act of June 15, 1880, and held for cancellation the declaratory statement of Fideler. The cash entry of Kurth was then made of record. On appeal this Department, by letter of July 25, 1884, ordered a new hearing, with a view of ascertaining the exact date of Fideler's settlement, and the truth of the allegation that Kurth had sold his rights to Fideler.

The second hearing was had, and on February 12, 1885, the local officers held that Fideler settled between June 23 and July 1, 1879, and further that, "It is evident that Kurth's present claim is an afterthought. He agreed to sell and did sell his interest in the premises to Fideler, and received his price therefor." They again recommended that judgment be rendered for Fideler, and that Kurth's "filing" be canceled. On appeal your office, by letter of May 7, 1885, affirmed that decision, held for cancellation the cash entry of Kurth, and allowed Fideler to enter the tract upon the proof already made, and further found that Kurth has never made settlement upon the tract, established residence, or attempted to comply with the requirements of the homestead law. In these conclusions of your office I concur, and also in the finding of the local officers that Fideler settled about June 23, 1879. In that view of the case it became necessary for him to file his declaratory statement by September 23d following, or take the risk of forfeiting his claim in favor of the next settler in order of time who had complied with the law. (United States R. S., Sec. 2265.) He failed to so file until February 11, 1882, and in the meantime the homestead entry of Kurth was made of record. After the time allowed by law to Fideler to put his claim of record, Kurth applied to purchase under the act of June 15, 1880, his application was allowed, and he claims that Fideler's right to the tract is now at an end.

In the case of Freise v. Hobson (4 L. D., 580), it was held by this Department that the right of purchase under said act was suspended from the initiation of a contest until the final disposition thereof. The proceedings in the case at bar were in the nature of a contest, inasmuch as they must determine the priority of right to the land, as between the parties thereto. I am therefore of the opinion that the reason for the rule announced in said case applies with equal force to the case at bar. Consequently, the application of Kurth should have been suspended to await the final disposition of the questions involved. It being now determined that Fideler had the prior right, the application of Kurth is rejected. The homestead entry not being followed by resi dence will be canceled. Said decision is affirmed, for the reasons herein stated.

FEES OF SURVEYORS-GENERAL.

CIRCULAR.

Commissioner Sparks to surveyors-general, October 13, 1886.

Surveyors-general will be permitted to furnish certified copies of fieldnotes, plats, and other papers from their records and to charge therefor such fees as are now allowed by law to registers and receivers, or to public officials in the state or territory for like services, not exceeding the fees prescribed for registers and receivers, and provided also, that such services are not performed in office hours by clerks paid by the United States, nor the government stationery or supplies used. Approved:

L. Q. C. LAMAR,

Secretary.

MINING CLAIM-MILL SITE.

CHARLES LENNIG.

Both a water right and mill site claim may be located on the same tract of land. Section 2337, R. S., contemplates the actual use, or occupation by improvements or otherwise, for mining or milling purposes, of the land; and it is not satisfied by the use for said purposes of the water from springs situated thereon.

Secretary Lamar to Commissioner Sparks, October 14, 1886.

I have considered the case of Charles Lennig, applicant for patent for the Eureka Mill Site, mineral entry No. 71, Prescott land district, Arizona, on appeal from your decision of February 18, 1886, holding said entry for cancellation.

The appeal purports to have been taken for the United Verde Copper Company, who show no interest whatever in the claim; but since your said decision appears to have recognized them as probably interested, I will waive this informality and treat the appeal as that of Lennig, the claimant of record.

It appears from the record before me that said mill site claim was filed February 18, 1882, in connection with a claim for the Eureka Lode, new mineral entry No. 70, under Section 2337 of the Revised Statutes. It further appears, and your said decision finds, that said mill site claim is situated about a mile from said lode claim, and is variously and commonly known as "Walnut Springs," "Ruffner's Springs," "Eureka Water Site," and "Eureka Mill Site;" that it contains the only springs within six miles of the Eureka lode, and was purchased by Lennig "for the purpose of obtaining the requisite water for mining purposes on the Eureka mine," and is described in the deed of conveyance as "that certain water right and water privilege;" and that the only evidence of

improvement on the land is a ditch for conveying water, and the only use of it shown has been the use of the water on the Eureka lode claim. From these facts said decision concludes that "it is clear that title to the property is sought chiefly, if not solely, as a water right and to control the springs in question," and that "the claimant has not shown such use or occupation of the land in question as is contemplated by Section 2337, R. S." And said decision holds that because this Department has ruled in the Pagosa Springs Case (1 L. D., 573), and in the case of Walter A. Chessman (2 L. D., 774), that "a water right cannot as such be patented under the mining laws,"--and because Sections 2339 and 2340, R. S., recognize and provide for the acquisition of "rights to the use of water for mining . . . . . or other purposes" by posses sion and use, they cannot be construed as authorizing the issue of patent in such cases as that now under consideration.

The Pagosa Springs and Chessman cases, above cited, appear to have no application to the question raised by this case; the former rules that land is not patentable as mineral land because it contains a mineral spring, and the latter that land used for storing water may not be patented as placer land. In this case the record tends to show that a water right in the springs on the Eureka mill site, and a right of way over the public domain for the ditches leading therefrom to the Eureka lode, has vested in Mr. Lennig. These rights are acquired by priority of appropriation and are governed by local customs and laws (Broder v. Natoma Water Co., 101 U. S., 274), they are amply protected by the provisions of Sections 2339 and 2340, R. S., and I concur in your view that they are not patentable as water rights or rights of way. But it does not follow, from the fact that water rights are not patentable as such, that land containing water, in which a water right may be acquired, may not be patented as a mill site. The presence of water on the land often must be, and doubtless was in the case now before me, the chief reason for its selection as a mill site. I infer from the statement of the court in O'Keiffe v. Cunningham (9 Cal., 589), that the customs and laws in mining regions sanction the location of a tract of land both for water rights, or rights of way for ditches, and for mining purposes. It is entirely consistent with the United States laws, as I read them, that a tract of land may be covered by the water right of one person and by the settlement, mining, or mill site claim of another person. Hence it must follow, as there is no express probibition of it in the statutes, that a tract of land may be subject to both the water right and the mill site claim of the same person. And therefore the ownership of the Eureka water right does not bar Mr. Lennig's claim to the Eureka Mill Site, if he is otherwise within the terms of Section 2337, R. S., which reads as follows:

"Where non-mineral land not contiguous to the vein or lode is used or occupied by the proprietor of such vein or lode for mining or milling purposes, such non-adjacent surface ground may be embraced and in

cluded in an application for a patent for such vein or lode, and the same may be patented therewith, subject to the same preliminary requirements as to survey and notice as are applicable to veins or lodes; but no location hereafter made of such non-adjacent land shall exceed five acres, and payment for the same must be made at the same rate as fixed by this chapter for the superficies of the lode. The owner of a quartzmill or reduction-works not owning a mine in connection therewith, may also receive a patent for his mill-site, as provided in this section."

The second clause of this section manifestly makes the right to patent a mill site dependent upon the existence on the land of a quartz-mill or reduction-works. But the terms of the first clause are more comprehensive. Under them it is not necessary that the land be actually a "mill-site." They make the use or occupation of it for mining or milling purposes the only pre-requisite to a patent. The proprietor of a lode undoubtedly "uses" non-contiguous land "for mining or milling purposes" when he has a quartz-mill or reduction-works upon it, or when in any other manner he employs it in connection with mining or milling operations. For example, if he uses it for depositing "tailings " or storing ores, or for shops or houses for his workmen, or for collecting water to run his quartz-mill, I think it clear that he would be using it for mining or milling purposes. I am also of opinion that "occupation" for mining or milling purposes, so far as it may be distinguished from "use," is something more than mere naked possession, and that it must be evidenced by outward and visible signs of the applicant's good faith. The manifest purpose of Congress was to grant an additional tract to a person who required or expected to require it for use in connection with his lode; that is, to one who needed more land for working his lode or reducing the ores than custom or law gave him with it. Therefore, when an 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 case at bar the record shows that the land is suitable for milling purposes, because it lies on the banks of a creek and also contains springs which supply an abundance of water. It was originally located "as a mill site or place upon which to erect a mill, furnace, or other works necessary for the reduction of ores from the Eureka mines or other mines in this district;" and the application now on file sets forth that it is "claimed by the said applicant as and for a mill site for the working of the ores from said mining claim." But in fact it has never been used or occupied for any such purpose. it appears that the said water is used in running a "smelter located on the Eureka mine," and that it is conveyed in pipes some two miles for that purpose. These facts show plainly that the land is not used or occupied for the purpose for which it was located, or for any purpose in connection with mining or milling. The use of the water is, in my judgment, not a use of the land.

I therefore affirm your decision.

On the contrary,

RAILROAD LANDS RESTORED TO ENTRY.

NORTHERN PAC. R. R. Co.

Lands in Walla Walla land district, Washington Territory, withdrawn on the line of amended general route filed by the Northern Pacific Railroad Company, February 21, 1872, lying south of the territory affected by the definite location of said road, and east of the line showing the forty mile limit of that point of the route not yet definitely located, are restored to settlement and entry.

Acting Secretary Muldrow to Commissioner Sparks, October 18, 1886.

By letter of September 13, 1886, your office recommended that certain lands in the Walla Walla land district, Washington Territory, now withdrawn for the benefit of the Northern Pacific Railroad Company (13 Stat., 365), be restored to settlement and entry.

The lands referred to were within the limits of withdrawal ordered November 21, 1870, on map filed August 13, 1870, as map of general route. This route was afterwards changed, and a new map, filed as map of amended general route, was accepted February 21, 1872, and the withdrawal made thereon also embraced said lands.

On October 4, 1880, the map of definite location was filed on a still different line, and by this location the lands in question fell entirely outside the forty mile limits. But inasmuch as those lands lay within the withdrawal on the amended general route, their status, as affected by definite location, could not be ascertained until the southern terminal limit on definite location was fixed. Said terminal limit was fixed on August 16, 1881, and the lands in question fell outside and south of that line. The lands lie south of the territory affected by the definite location and east of the line showing the forty mile limit of that part of the road not yet definitely located. There seems to be no reason therefore why they should longer remain withdrawn, and indeed might have been restored in 1881 when other lands similarly situated were restored. I accordingly concur in said recommendation, and said lands will be restored to entry and settlement.

RAILROAD GRANT-MINERAL LANDS.

SAMUEL W. SPONG.

The statutory exception of mineral lands from the grant to this company, is construed to include only lands known to contain valuable minerals prior to the issuance of the patent.

Secretary Lamar to Commissioner Sparks, October 21, 1886.

I have examined the appeal of Samuel W. Spong from the decision of your office, dated December 23, 1882, refusing to allow him to file mineral application for the Marble Valley Quartz mine, lot No. 39, in Sec. 17, T. 9 N., R. 9 E., M. D. M., Sacramento land district, California. 2278 DEC-13