make new proof, showing a satisfactory compliance with all the requirements of the law."

From this decision Young appeals to the Department.

Your said decision sums up the evidence with substantial correctness as follows:

The testimony shows that Arnold purchased Brown's relinquishment of and his improvements on the tract involved, viz., thirty-five acres of breaking, paying him therefor five hundred and twenty-five dollars; that he filed as alleged, and made settlement before the intervention of an adverse claim. . He built a good comfortable house on the tract, and established residence therein on the 24th of November, 1885; broke six acres more, put up a stable, dug a well, and has cultivated to crop the whole of the forty-one acres, and at the date of the hearing was going on with more breaking.

Nevertheless, you direct the rejection of his proof, because

It appears that he made his proof at the earliest possible date, and with a view to raising money in some way on the tract; it further ap pears that all of his family did not reside with him on the tract.

The offer of final proof at any time after the expiration of the period prescribed by your regulations made in accordance with law cannot invalidate the proof; the most that can be said is that such fact, taken in connection with other facts, may serve to cast doubt on the claimant's good faith. But in this case no such other facts appear.

The intention to mortgage a claim, after receipt of final certificate, in order to raise the money wherewith to pay for the land, does not invalidate the proof. See, as bearing upon this point Myers v. Croft (13 Wall., 291); Larson v. Weisbecker (1 L. D., 422).

Prior to filing for the tract in question, claimant had rented a quartersection of improved land, upon which he had done a large amount of plowing, and which he could not abandon until an even year from the date of renting, without losing all the work done thereon; therefore a portion of his family remained on the rented land, supervising affairs there. The facts upon this point are correctly summed up thus by the receiver-the register also signing the decision:

Arnold himself, with one or two of his children, spent more or less of the time nearly every day or night on said land, he sleeping there every night except a few since November 5, 1885, and his wife a part of the time. . . . . I am not only of the opinion, but am firmly and thoroughly convinced, that the claimant has taken said land in good faith and for his own use and permanent home.

Sharing in this conviction, after a careful examination of the testimony, I am of the opinion that the proof was sufficient, and have to direct that patent issue to Arnold thereon. Your decision is modified accordingly.

MINING CLAIM-EXCLUSION OF DISCOVERY SHAFT.

CAYUGA LODE.

The exclusion of that portion of the claim which contains the discovery shaft, renders it incumbent upon the applicant to show the existence of mineral within the remainder of the claim, prior to the allowance of entry therefor.

Acting Secretary Muldrow to Commissioner Sparks, June 11, 1887.

I have considered the appeal of Robert C. Chambers from your de cision of January 20, 1886, holding for cancellation his mineral entry No.30, made December 7, 1883, at Hailey, Idaho, said entry being called the Cayuga Lode claim, lot 66.

On August 7, 1882, Chambers first made application for patent for the Cayuga Lode. The claim was then described as having a surface measurement of 1500 feet long by 600 feet wide, containing 20.66 acres. Due notice was given by publication and other prerequisites of the law were seemingly complied with.

Within the period of publication M. F. Richardson, as claimant of the Central Lode, filed an adverse claim; and forthwith instituted proper legal proceeding in the court of the second judicial district of said Territory to determine the question of the right of possession. Said suit was prosecuted to final judgment on November 27, 1883, when plaintiff was declared to be the owner of 18.02 acres of the surface ground within the limits of the Cayuga claim as described by the defendant. Thereupon, Chambers made the entry in question, for the residue of the Cayuga claim, comprising 2.61 acres-about 170 feet-in the south-easterly portion of said claim.

On October 5, 1885, in a letter to the register and receiver, you called attention to the fact that "There is no evidence in the record showing that the alleged Cayuga vein or lode extends in its onward course, or strike, through or into the entered ground, nor is it shown that any vein, lode, or mineral has been discovered therein."

Inasmuch as no adverse claim had been asserted to said tract, you allowed the claimant sixty days in which to supply the required proof; and also to furnish an additional certificate from the surveyor general's office as to improvements, as well as an abstract of title up to the date of the filing of the present application.

On December 26, 1885, certain affidavits were filed, which it was claimed met the requirements of your office; but, on January 20, 1886, you decided otherwise and held said mineral entry for cancellation. From that action an appeal was taken.

Section 2320 of the Revised Statutes says, "no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located." This is a prerequisite to the location, and of course entry, of any mining claim. Without compliance with this

essential requirement of the law no location will be recognized, no entry allowed.

Has this requirement been complied with in this case?

The entry made by Chambers is of 2.64 acres in the southeastern end of the Cayuga claim as originally made by him. That claim was fifteen hundred feet long and six hundred wide. The mineral discovery was said to have been made in the discovery shaft, which was located about the middle of the original claim.

There is no pretense that there has been any other discovery of mineral than the one stated when the original claim was filed, and which point of discovery was decided by the court to be within the location of Central claim of M. F. Richardson.

The departmental circular of December 4, 1884 (3 L. D., 5'0), very clearly states the law on this point. It says:

The rights granted to locators under section 2322 of the Revised Statutes are restricted to such locations on veins, lodes, or lodges, as may be "situated on the public domain." In applications for lode claims where the survey conflicts with a prior valid lode claim, and the ground in conflict is excluded, the applicant not only has no right to the excluded ground, but he has no right to that portion of any vein or lode, the top or apex of which lies within such excluded ground, unless his location was prior to May 10, 1872. His right to the lode claim terminates where the lode, in its onward course or strike, intersects the exterior boundary of such excluded land, and passes within it.

Not having any right to such lode within the excluded ground, he can claim no right by virtue of the discovery of the same therein.

But it is asserted in behalf of appellant that the so-called Cayuga, but more properly the Central, lode does extend from the point of discovery, within the lines of the latter claim into the 2.64 acre tract entered by Chambers.

The testimony on which this assertion is based is contained in the affidavit, filed December 26, 1885, of W. H. Watt, agent and attorney in fact of the appellant. In that affidavit Watt says:

A vein or lode bearing lead and silver bearing rock in place was discovered at the time of making the original location of the Cayuga lode claim at the point of discovery, as shown in the survey for patent; that said vein has only been developed and opened by shafts and cuts near the point of discovery; that the strike of said lode is believed to be, from the developments made, parallel to the other lodes in the vicinity, that is, in a general northwesterly and southeasterly direction; that said lode is not open at any other point within the limits of the Central lode claim or the Cayuga lode claim; that the ground entered in mineral entry 30, embracing an area of 2.64 acres is believed to embrace said vein or lode on its onward course southeasterly from the point of discovery; that this is confirmed by a vein developed in the Caledonia Fraction mining claim, which forms the southeasterly extension of said Cayuga lode claim.

This is all the testimony in the case on this point; and it utterly fails to show the discovery of mineral in the entered premises, or that the

lode or vein discovered near the shaft, within the lines of the Central claim, extends on its strike through or into the entered land.

Counsel for appellant cites several decisions, which he claims sustain his contention that this evidence is sufficient to show that the Central vein does extend into the entered premises. It needs but an examination of the cases cited to satisfy the judicial mind that so far as they are applicable to the present case they are authorities adverse to the con tention for appellant.

Indeed, were it otherwise there would be no restraint upon the entry of presumed mineral land for speculative purposes, to the exclusion of that class of citizens for whose benefit the mining laws were so carefully and beneficently framed.

Entertaining these views, it is not necessary to discuss other matters in the case. I affirm your judgment, and direct the cancellation of said entry.

PRIVATE CLAIM-SELECTION AND LOCATION.

BACA FLOAT, NO. THREE.

There is no power or authority in the Department, oa failure of the claimants to make selection and location within the period designated by the statute, to remove the limitation, and authorize a selection and location thereafter.

The Department has no authority to cancel a selection and location, made within the period prescribed, of non-mineral land, or land not known to be mineral.

The selection and location of lands known to be mineral might be properly vacated; but the right to select other land in lieu thereof would be barred, unless made within the statutory period.

Secretary Lamar to Commissioner Sparks, June 15, 1887.

On August 12, last I heard Mr. John C. Robinson, through his counsel, protesting against your views relative to the right to re-locate Baca Float No. 3, and asking that your views and opinions be annulled, and that the order of Acting Commissioner Harrison of March 12, 1885, be declared legal and final.

The action complained of appeared to be a mere expression of opinion, and as no official action had been taken by you relative to the right to re-locate the claim under the decision of March 12, 1885, there was nothing before me to act upon and hence the application was denied. This matter is again brought to my attention by the communication of Mr. W. G. Rifenburg, submitting the question whether said land can be re-located.

By the 6th section of the act of Congress of June 21, 1860, (12 Stat., 72) it is provided:

That it shall be lawful for the heirs of Louis Maria Baca, who make claim to the said tract of land as is claimed by the to wn of Las Begas, (Vegas,) to select instead of the land claimed by them an equal quantity of vacant land, not mineral, in the Territory of New Mexico, to be

2278 DEC-45

located by them in square bodies not exceeding five in number. And it shall be the duty of the surveyor general of New Mexico to make survey and location of the Lands so selected by said heirs of Baca when thereunto required by them; Provided, however, That the right hereby granted to said heirs of Baca shall continue in force during three years from the passage of this act, and no longer.

By reference to the act it will be seen that selections were to be made in the Territory of New Mexico in square bodies, not exceeding five in number. In accordance therewith, five selections were made-known as Baca Claims, numbers 1, 2, 3, 4 and 5, respectively. It was ascertained that the quantity of land claimed by the town of Las Vegas was 496, 446.96 acres, and therefore each location embraced 99,289.39 acres. The tract designated as claim No. 3 was selected and located by John S. Watts, attorney for the Baca heirs, June 17, 1863, and was approved by the surveyor general of New Mexico on same day, but was not surveyed because claimants failed to make the necessary deposit to pay for expense of survey. On April 30, 1866, claimants filed an amended application for selection and location of claim No. 3, and on May 21, 1866, your office issued instructions for survey thereof as amended. By decision of your office of September 27, 1877, upon the application of J. S. Watts, attorney for claimants, to re-locate this claim, the application was rejected, upon the ground that your office could not authorize a re-location and selection of said claim after the expiration of the time limited by Congress.

February 13, 1885, John C. Robinson filed in your office his application as owner to re-locate Baca claim No. 3, alleging that the present selection of this claim is upon lands mineral in character. Upon this application Acting Commissioner Harrison, by decision of March 12, 1885, held: "The present location of the claim is therefore rejected, for the reason that the lands embraced are mineral in character, and not subject to selection and location under the act, and a re-selection and location is hereby allowed."

It will be observed that the present location of this claim was not rejected upon any application or claim of the government, but in accordance with the application and request of the grant claimants and upon their allegation of the fact that the land is mineral.

A similar question came before your office on the application of William Gilpin for patent to Baca claim No. 4. In that case it was claimed by the government that the land was mineral, and that the surveyor general approved the plat of survey, subject to the conditions and pro visions of the act of June 21, 1860. Commissioner Williamson, however, held that, "The surveyor general did not undertake and had no power to impose conditions not in the act," and that "The question as to the mineral or non-mineral character of this land has been passed upon by competent authority, the title has passed from the government and vested in private individuals, this office has no authority to re-open