ings thereunder must be of the same character, even if there had been a strict compliance with the law as to residence and cultivation, which there has not."

Thereupon, your office, on July 9, 1884, suspended said entry, and ordered a hearing to determine the validity of the same. Notice was issued on August 8, 1884, fixing September 26, 1884, for the hearing before the local land officers. The notice was posted in said land office, as appears by the certificate of the register, and a copy of the same was sent by registered letter addressed to said Richardson, at Covelo, in said State, and was delivered to him September 13, only thirteen days prior to the date fixed for said hearing. The entryman made default, and the special agent testified in behalf of the government to the statements made in his said report. On October 13, 1884, the local land officers found that the service of notice was insufficient, because the registered letter was not delivered to the entryman thirty days prior to the day fixed for the hearing, and they declined to consider the testimony, and decided that the case should remain as it was before a day was set for the hearing. On September 29, 1884, said agent again reported to your office-referring to a letter which appears in the record from J. P. Thomson-stating that said letter was delivered to Richardson on September 13, 1884; that Richardson sold to Montague, and Montague to Thomson; that he (Thomson) would have to defend the case himself, as Richardson had left the State and that H. W. Mathews would appear for him; that he (the agent) had no doubt that the entryman was informed of the character of the registered letter giving notice of the hearing, and that nothing more could be done in the matter, as the agent was required to close up all the matters which he had in hand prior to October 1st. Your office on February 10, 1885, considered the case, and held that the manner of service was sufficient; that since the purchaser had notice of the hearing and had signified his intention of defending the case, as the claimant had expressed his unwillingness to do, and the purchaser had failed to attend at said hearing, the notice was found sufficient, and the entry was held for cancellation.

The material question for consideration is, was the service of notice of said hearing sufficient? It is clear that personal service must be made in all cases when possible; (Rule of Practice No. 9, 5 L. D. 38), and that a party is entitled to at least thirty days' notice of the hearing, "unless by written consent an earlier day shall be agreed upon." (Rule 7, ibid., 37).

In the case of Crowston v. Seal (5 L. D., 213), this Department held that where a party acknowledges by registered letter the receipt of notice of contest, thirty days prior to the day fixed for hearing, it is personal service under Rule of Practice No. 15 (ibidem, 38), which provides: "Proof of personal service shall be the written acknowledgment of the person served or the affidavit of the persons who served the notice attached thereto, stating the time, place, and manner of service."

In the same decision it was stated "that actual in the absence of legal notice does not put the opposite party on his defense;" citing Parker v. Castle (4 L. D., 84); Milne v. Dowling (ibid., 378); Miller v. Knutsen (ibidem, 536).

In the case of the United States v. Copeland, et al., (5 L. D., 170), the Department held that where the special agent's report, on which the cancellation was based, discloses a transfer of the land after the issuance of final certificate, such transferee should receive notice of the cancellation. In the case at bar, the notice was not received by the entryman thirty days prior to the day fixed for the hearing, and the special agent's report discloses the name of the transferee. Under the rules of practice and the decisions cited (supra), the decision of the local officers was correct and should be affirmed. For the foregoing reasons, said decision of your office must be modified, and the case will be returned to the local land officers with directions to them to issue an alias notice to the entryman and to give notice to the transferee in accordance with the rules of practice.

MINING CLAIM-PROTEST-CERTIORARI.

A. M. HOLTER LODE.

A petition for certiorari should be under oath, setting forth specifically the decision complained of, and wherein the same is irregular, or in what manner the applicant is injured thereby.

Secretary Lamar to Commissioner Sparks, November 24, 1886.

Referring to mineral entry No. 1099, Helena, Montana, made by the Elkhorn Mining Company upon the A. M. Holter Lode, I have before me an informal application for certiorari on behalf of "H. Fred. Bright et al." It appears therefrom that your office having before it the said mineral entry and the protest of this applicant, decided that said protest was not sufficient to warrant favorable action thereon. That on the attempt of said protestants to appeal, your office held that the right of appeal did not extend to protestants, whereupon this application was made; it being further alleged therein that said protest charges fraud in the matter of said entry, that an adverse suit is now pending in which such matter is at issue, and that your office refused to entertain the protest, because an adverse claim was not filed within the proper time.

The application is fatally defective in three particulars. (1) It is not under oath; (2) it does not set forth specifically the decision complained of; and (3) it is not shown wherein the said decision was irregular or in what manner the applicant is injured thereby.

By inspection of the record of this case in your office, it appears that said protest was given full consideration, and as a review of such action. is not warranted by this application, it is accordingly denied, and transmitted herewith.

REVIEW DENIED.

Motion for review of departmental decision in James v. Hall et al. (4 L. D. 552) overruled by Acting Secretary Hawkins, November 27, 1886.

MINERAL PATENT-TOWNSITE CLAUSE.

The insertion in a mineral patent of a clause reserving townsite rights is not authorized by law.

Acting Secretary Hawkins to Commissioner Sparks, November 27, 1886.

I am in receipt of your communication of October 25, 1886, asking instructions relative to the insertion of the townsite clause in lode patents, and whether the application of the decision in Papina v. Alderson et al. (1 B. L. P., 91) in adjudicating cases in your office is to be continued, or whether the future practice shall be governed by the princi ples established in Deffeback v. Hawke (115 U. S., 392).

The clause referred to is as follows:

"Excepting and excluding however from these presents all town property rights upon the surface, and there are hereby expressly excepted and excluded from the same all houses, buildings, structures, lots, blocks, streets, alleys, or other municipal improvements on the surface of the above described premises, not belonging to the grantee herein, and all rights necessary or proper to the occupation, possession and enjoyment of the same."

It has not been the practice of the Land Department to insert this clause in patents for placer claims, for the reason that the surface is absolutely required for the full enjoyment of the land, by either the placer or townsite owners. Kemp v. Starr (5 C. L. O., 130); Townsite of Deadwood (S C. L. O., 153). But the Department has for many years recognized the principle that there may be a division of the fee simple in the surface and the minerals underneath the surface, and upon this principle the clause referred to was inserted in lode claims. Turner v. Lang (1 C. L. O., 51); Central City, Colorado (2 C. L. O., 150); Rico Townsite (1 L. D. 567). This rule was recognized in the case of Papina v. Alderson (supra), to which you refer, although it was not directly in issue in that case.

While the case of Deffeback v. Hawke involved the question of the rights of claimants under patents for placer claims, it also clearly decided the principle that as under the act of May 10, 1872, all valuable mineral deposits in lands belonging to the United States, whether sur veyed or unsurveyed, are free and open to exploration and purchase, and the lands on which they are found to occupation and purchase, that the fee is indivisible, and that either the mining claimant or the townsite occupants is entitled to it to the exclusion of the other. The

act of May 10, 1872, upon which this decision rests provides (Sec. 2322 R. S.) that

"The locaters of all mining locations heretofore made, or which shall hereafter be made, on any mineral vein, lode, or ledge, where no adverse claim exists on the 10 of May, 1872, so long as they comply with the laws of the United States and with State, Territorial and local regulations, not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their location, and of all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines, extended downward vertically, although such veins, lodes or ledges may so far depart from a perpendicular in their course downward as to extend outside of the vertical side lines of such surface locations."

The reasoning of the court in the case of Deffeback v. Hawke is general in its application to all mineral claims, whether lode or placer. In holding that the officers of the land department have no authority to insert in a patent any other terms than those of conveyance, with recitals showing a compliance with the law and the conditions which it prescribed; and that patent of a placer claim carries with it the title. to the surface as well as the land beneath; it is for the reason that "the act of Congress of May 10, 1872, contemplates the purchase of the land on which valuable mineral deposits are found, and its provisions in this respect are retained in Revised Statutes, Section 2319." This section of the Revised Statutes refers to all mineral lands, whether lode or placer. If a mining location is made before townsite appropriation, it excepts the land absolutely, and hence the clause of reservation in the patent to which you refer could not affect the title thereby conveyed.

I therefore recommend that this clause should not be inserted in patents for any mining claim, and that the practice of your office in this respect shall be governed by the construction given to the act of May 10, 1872, by the court in the case of Deffeback v. Hawke.

RE-HEARING DENIED.

GEER v. FARRINGTON.

Application for re-hearing in the above case (4 L. D. 410) denied by Acting Secretary Hawkins, November 27, 1886.

2278 DEC-17

ENTRY PAPERS-FILES OF THE GENERAL LAND OFFICE.

PUGET MILL CO.

Papers pertaining to entries and forming the basis thereof belong to the permanent files of the General Land Office and may not be returned to the parties filing the

same.

Commissioner Sparks to the register and receiver, Olympia, Washington Territory, June 16, 1885.

I am in receipt of your letters (7) of 1st instant, enclosing petitions of the Puget Mill Company, per their agent, in reference to soldiers additional homestead entries, finals 561, 570, 871, 560, 577, 580, and 575, canceled, or held for cancellation for illegality, and for the lands of which said company have made cash entries under the act of June 15, 1880. The petitions represent that said company own the lands in question as assignee of the entrymen, that they have been compelled to secure their title from the government by cash entries under the act of June 15, 1880, aud ask that the papers upon which said additional homestead entries are based be returned to you for delivery to said company, and in reply have to state that all papers pertaining to said entries and forming the basis thereof are portions of the permanent files of this office and can not be returned in the manner petitioned for. If said papers are necessary as evidence in any action in the local courts, they will be forwarded to your care and you will respond to such legal subpoena duces tecum as may be served upon you regarding the same.

NOTE. This decision was affirmed by Acting Secretary Hawkins, November 29, 1886.

HYPOTHETICAL CASES BEFORE THE DEPARTMENT.

F. GREENE.

As the Secretary of the Interior must determine all cases coming before the Department on appeal, it would not be proper for him to express an opinion as to whether the proposed action of the settlers would be in violation of the law.

Acting Secretary Hawkins to Mr. F. Greene, Mandan, Dakota, November 29, 1886.

Your letter of the 23rd instant, desiring to obtain my "opinion in regard to the matter of settlers on government land abandoning their claims temporarily for the winter, in order to earn a livelihood," came duly to hand. You add, doubtless as a reason for making this request, that "owing to the almost complete failure of crops in this section the past season, a large proportion of the people will be unable to main