MINING CLAIM-COLORADO SCHOOL LANDS.

FLEETWOOD LODE.

An entry canceled on the erroneous report of the local office that no response had been made to the previous adverse decision should be re-instated when the fact of such error is made known.

A mineral applicant for lands in section sixteen, in the State of Colorado, may submit proof, after due notice to the State, that the land applied for, was of known mineral character prior to, and at the date of the admission of the State to the Union.

Acting Secretary Chandler to the Commissioner of the General Land Office, June 3, 1891.

I have considered the appeal of Wallace Ward from the decision of your office dated February 11, 1890, refusing to reinstate mineral entry No. 186, made October 14, 1885, by said Ward upon the Fleetwood lode -claim, at the Pueblo land office, in the State of Colorado.

The record shows that the papers in said entry were considered by your office on June 4, 1887, and it was found that said claim was situate within the NW of Sec. 16, T. 22 S., R. 72 W., 6th P. M.; that its location was made on July 22, 1878, and the application for patent filed in the local office on June 16, 1885; that the survey of said township was approved on February 10, 1872, and said section sixteen was returned as agricultural in character; that the application contained no averment that said lode was discovered prior to the admission of Colorado as a State, on August 1, 1876, nor that said NW was known to be valuable for minerals prior to said admission; and therefore said entry must be held for cancellation.

On July 30, 1887, said Ward, by his attorney in fact, filed in the local land office a petition asking to be allowed to amend his application for patent and to furnish proof that prior to August 1, 1876, the land embraced in said entry and also in the whole NW. of said section was known to be valuable for minerals and therefore did not pass to the State of Colorado under its school grant. The appellant also asked that the order holding said entry for cancellation be suspended and that further time be granted for an appeal from said decision during the period required for furnishing said proof, and that he might be promptly notified of the action of the Department upon his petition. "in order that he may not lose or prejudice his right of appeal in case the same be denied."

On October 6, 1887, your office acknowledged the receipt from the local office of their letter dated September 21, 1887, with the proof of service of notice of said decision of your office upon the claimant, and stating that more than sixty days have since elapsed and no appeal or response had been received from the applicant, and your office held that said entry must, therefore, be canceled.

On June 21, 1889, you advised the local officers of the receipt of their letter dated November 5, 1887, in which they stated that a mistake was made in their former letter of September 21, 1887, reporting that no appeal or response from the parties in interest had been received. With said letter the local officers transmitted said communication from claimant's attorney, filed July 30, 1887, asking further time to furnish additional proof. Your office, however, called the attention of the local officers to the fact that the "official records" did not show that said attorney had ever been admitted to practice before this Department, and directed that if the parties have filed, or shall file within thirty days from due notice hereof, any evidence showing why the case should be re-opened and the entry re-instated, appropriate action would be taken thereon.

On July 2, (not 21st, as stated in your office letter of February 11, 1890,) the local office advised you that said attorney for applicant ap peared as attorney in fact; that he was "duly qualified to practice before this (the local) office as per the list now on file in your office,” and the local office also transmitted a communication in the nature of a motion for a re-instatement of said entry, which was duly verified and the applicant alleged therein that to sustain the cancellation of said entry would work great hardships upon many innocent persons; that long before the application for patent in this case the character of said section 16 had been determined by the Department to be mineral and that many mineral patents had been issued upon lode claims in said section where the proofs were otherwise sufficient; that the parties relying upon the supposed determination of the mineral character of said section have expended upwards of two hundred thousand dollars in the development of claims adjoining the Fleetwood lode claim; that the applicant never at any time received any notice of the cancellation of said entry on October 6, 1887, nor in reply to his said communication of July 30, 1887, until July 1, 1889, and he therefore asks that the case be re-opened, said entry reinstated and passed to patent. On February 11, 1890, your office considered said communication and refused to re-instate said entry, and held that no reason appeared from the record "why the cancellation heretofore made of the Fleetwood entry No. 186, was not in every way proper and demanded by the circumstances shown in the record."

In his appeal, the appellant insists (1) that you overlooked his request. to be allowed to furnish proof that the land in question was known to be mineral long prior to August 1, 1876; (2) that the construction placed by you upon the decision in the case of Townsite of Silver Cliff v. State of Colorado (Copp's Min. Laws, 2 ed., p. 261) is erroneous because it clearly appears by said decision that evidence was taken at the hearing in said case showing the mineral character of the whole of said section 16; (3) that, there being no adverse claimant, applicant ought to be permitted to amend his application and furnish proof as to the mineral character of said land upon giving due notice to said State.

It is quite evident that the cancellation of said entry was erroneously made. True, it was made upon the report of the local office that no appeal or response had been made by the claimant to the notice of the decision of your office holding said entry for cancellation. But this report was incorrect, and, upon being notified by the local office of said error, you should have revoked the order of cancellation, thereby placing the claimant in the same position he would have been had his entry not been canceled upon the erroneous report of the local office. Moreover, his application to be allowed to furnish proof that the land in question was known to be valuable mineral land long prior to August 1, 1876, should have been granted by you.

In the case of the Boulder and Buffalo Mining Company (7 L. D., 54), decided by the Department on July 24, 1888, the claims were in the N of said section 16, and your office held the entries for cancellation because the evidence on file did not show that the land entered "was known to be valuable for mineral prior to the date of the admission of Colorado as a State, to wit, August 1, 1876." Afterwards, the claimant made a motion in your office for review of said decision, and asked that the entries be passed to patent, on the ground that the evidence in said Silver Cliff Townsite case determined the character of the land in said section 16; that, if this was not the case, then that he be allowed to furnish evidence that the land in question was known to be mineral long prior to the admission of said State. Your office refused the mo tion, and also the application to file further proof as to the mineral character of the land. But the Department modified your judgment and held that the decision in said Silver Cliff case determined the character of only the S of said section, and the language in said case must be held as applicable only to the land in the south half of said section 16; that there was no good reason for refusing to allow the appellant to make supplemental proof showing the mineral character of said land on August 1, 1876, upon giving due notice to the State of Colorado. Such action should be taken in the case at bar.

The order of your office dated October 6, 1867, cancelling said entry must be, and it is hereby, set aside, and the appellant will be allowed, within sixty days from notice hereof, to submit supplemental proof upon due notice to the State showing the mineral character of said land prior to and at the date of the admission of said State. The decision of your office is accordingly modified.

MORTON v. LANE.

Motion for review of departmental decision rendered in the case above entitled, January 20, 1891, 12 L. D. 74, denied by Acting Secretary Chandler, June 4, 1891.

REPAYMENT-FRAUDULENT ENTRY.

YALE T. HATCH.

Repayment is not authorized where an entry, secured through false testimony, is subsequently canceled.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, June 4, 1891.

On April 27, 1883, Charles Monroe made pre-emption cash entry No. 2722 for the NE. † of Sec. 22, T. 112, R. 72 W., Huron, Dakota.

On October 7, 1884, hearing was ordered upon the allegations of Lucinda A. E. Robinson that the entry was made upon false and fraudulent "final proof," and that the entryman had not complied with the law.

Among other things that Monroe alleged in his final proof were: 1. That he settled and established actual residence on the land July 20, 1882.

2. That his first act of settlement was to build a house, twelve by sixteen feet, and that he had broken eight acres of land and planted some to corn, and completed a house costing $125.

3. That there were no improvements on the land when he settled. All parties were present at the hearing. The government was represented by Special Agent T. M. James.

Claimant executed to Yale T. Hatch (appellant) a mortgage on the premises, on the day he made final proof, and on October 29, 1883, he deeded the land to said Hatch, who was also present at the hearing.

The register and receiver found in favor of the entryman, and the case was duly appealed, and on June 11, 1887, you reversed that judg. ment and held the entry for cancellation, saying:

I am of the opinion that the testimony in its entirety establishes the fact that Monroe's final proof aforesaid was false in every particular, save the points as to the qualifications to make said entry.

Claimant again appealed, and on February 27, 1889, the Department affirmed the action of your office, saying:

The facts are substantially as stated in said decision, to which reference is made. . . The evidence taken at the hearing shows that it (the final proof) is false

in important particulars.

A further statement in the departmental decision is as follows:

It will not avail the transferee in this case to say that he made inquiry as to the validity of the entry. His residence within a short distance and other facts in the case go to show that he might readily have ascertained, if he did not already know, the real facts in regard to the settlement, residence, and improvements made by the entryman. He either had knowledge of the facts, or is chargeable with laches in not obtaining that knowledge.

On February 19, 1890, the said Hatch filed in the local office his application for repayment of the purchase money of said land, and on April 3, 1890, you declined to recommend the repayment, on the grounds that "the proofs at date of entry showed a compliance with law, but it was afterwards determined that the proofs were false," and this appeal is brought to reverse that judgment.

The final proof, on which claimant procured the allowance of his entry, was fraudulent-a fraud in fact, and in such case it can not be held that the entry was "erroneously allowed," as the terms are used in Sec. 2 of the act of June 16, 1880 (21 Stat., 287), where repayment is authorized:

If a tract of land were subject to entry, and the proofs showed a compliance with law, and the entry should be canceled because the proofs were shown to be false, it could not be held that the entry was "erroneously allowed," and in such case repayment would not be authorized. (General Circular, January 1, 1889, pp. 66-67.)

Your said

This is the precise condition of Monroe's entry, and therefore his transferee is not entitled to the repayment applied for. decision is accordingly affirmed.

RAILROAD GRANT-MINERAL LANDS.

NORTH STAR MINING Co. v. CENTRAL PACIFIC R. R. Co.

"All mineral lands" are excluded from the grant to this company, and until patent

issues therefor, the Department has authority to determine the character of land claimed under the grant, and this is true, even though the company may have sold such land.

The authority of the Department to order a hearing on the petition of a mineral applicant for such land, is not abridged by a prior ex parte proceeding, on behalf of said company, in which the land was found to be agricultural in character. Acting Secretary Chandler to the Commissioner of the General Land Office, June 6, 1891.

I have considered the case of the North Star Mining Company v. The Central Pacific Railroad Company, as presented by the appeal of the latter from the decision of your office, dated March 12, 1890, affirming the action of the local officers at Sacramento, California, recommending the cancellation of its selection of lot 18, in Sec. 3, T. 15 N., R. 8 E., M. D. M., approved by the local officers on January 7, 1885, in so far as it conflicts with mineral lot No. 89, claimed by said North Star Mining Company.

The cancellation of said tract was recommended for the reason that at the date of said selection, and long prior to the grant to said company, by acts of Congress approved July 1, 1862, and July 2, 1864 (12) Stat., 489, 13 Stat., 356), from which were excluded in express terms "all mineral lands," the tract in question was well known to be valua ble mineral land.