proof of fraud, that my predecessor, and the officers under him, reached an erroneous conclusion is to invite not only want of respect for the adjudications of this office and the dependent patents, but endless litigation. It is obvious that if such a course were to be adopted titles in the Western country would be of little value, and the growth of communities upon the public lands would be retarded or stopped alto. gether.

You will please furnish to Mr. Green a copy of your letter to me and of this letter, as an answer to the application which he makes in behalf of certain residents of Leadville, Colo.

APPLICATION TO SET ASIDE PATENT-HEARING-EXPENSE.

2. ALEXANDER MOORE ET AL.

Where one attacks an existing patent on allegations of fraud with the purpose of himself entering on vacation of the patent, and a hearing is ordered to ascertain the facts, he should make such full prima facie showing at his own expense as will enable the Land Department to decide whether it will request suit to vacate the patent.

If the party attacked desires to rebut such prima facie showing, he should submit his testimony at his own expense.

Secretary Teller to Commissioner McFarland, February 27, 1884.

SIR: On June 18 last I considered the respective applications of Alexander Moore et al. for proceedings to set aside the patents under the pre-emption laws, and the lists to the State of California for the subdivisional parts of Sec. 12, T. 1 N., R. 1 E., in the San Francisco, Cal, land district. The applicants claiming that the tracts in question are coal lands, and not subject to such patents and listing, applied to purchase them under the act of March 3, 1873 (17 Stat., 607), and filed affidavits tending to show that the lands were of such character. As preliminary to the proceedings asked for, I directed that you order a hearing to ascertain the facts.

Under date of the 20th instant you transmit to me a letter from the local officers to you, from which it appears that they ordered such hearing, that all parties in interest were present upon the day assigned, but that no testimony was submitted in consequence of disagreement between them as to which party should deposit money therefor. The local officers thereupon asked instructions from you "to govern this and similar cases," and also "where (aside from a homestead entry) an entry is attacked for non-compliance with law, which party is to be held responsible, and required to deposit for cost of testimony, or whether each must pay for testimony submitted by them," and you transmit the same with accompanying papers to this Department.

Without intending to establish any new rule of general practice, I think that where one attacks an existing patent on allegations of fraud,

with the purpose of himself entering the land on vacation of the patent, and a hearing is ordered to ascertain the facts, he should make such full prima facie showing at his own expense as will enable this Department to decide whether it will request suit to vacate the patent. If the party attacked desires to rebut such prima facie showing, he also should submit his testimony at the hearing at his own expense, unless he elects to let the matter proceed and take the risk of making his defense in court, and you will direct the local officers to apply this ruling to the present case.

DECEASED OWNER-APPLICATION BY ADMINISTRATOR.

3. HENRY WOOD, ADMINISTRATOR.

A patent upon an application made by the administrator of a deceased owner should issue to the heirs of such deceased owner.

Commissioner McFarland to the register and receiver, Salt Lake City, Utah, May 24, 1884.

GENTLEMEN: In the matter of mineral entry No. 941, made by "Henry Wood as administrator of the estate of Isaac S. Waterman, deceased, and in trust for said estate and the heirs, devisees, and legatees thereof," September 27, 1883, for the Summit lode claim, the register's certificate of posting notice is herewith returned that the register may attach thereto the notice therein referred to as attached. In all cases where such proof of posting notice is submitted, the notice therein referred to should be attached to the register's certificate.

The application for patent is made by said Wood, who, as administrator of said estate, therein alleges himself to "be in the exclusive possession of said mining claim as trustee for the heirs, devisees, and estate of said deceased." Following my decision in the Union lode claim mineral entry 478, communicated to you under date March 23, 1883, the register's final certificate of entry is herewith returned, that if, after due notice to the parties in interest, no objection is made, the register may correct said certificate so as to show entry of said claim by "the heirs of Isaac S. Waterman, deceased."

XI.-PLACER CLAIM.

ADDITIONAL LOCATION-EXPENDITURES.

1. JOSEPH M. KNAPP.

Where an application for patent embraces a placer location properly made and assigned to applicant, and also additional ground claimed by virtue of a relocation by himself of the original location, enlarging its boundaries, such additional ground must not exceed the amount of 20 acres. Assuch application embraces land claimed under two separate locations, $500 must be shown to have been expended upon or for the benefit of each location.

Commissioner McFarland to the register and receiver at Leadville, Colo., October 16, 1883.

GENTLEMEN: In the matter of mineral entry No. 1573, made January 17, 1883, by Joseph M. Knapp, upon the "Corkscrew Placer,” I find on examination that the applicant, in his affidavit that plat and notice remained posted on claim during the sixty days of publication, bas failed to give the date of posting. A new affidavit is required giving date of posting. The application for patent embraces two locations, and the applicants have failed to furnish a certificate of the surveyor general that not less than $500 worth of work has been expended upon or for the benefit of each separate location.

You must require applicant to comply with paragraph 8 of circular of this office of the 9th of December, 1882.

I find, further, that the original location was made by Leonard S. Ballow and William H. Strohm, and embraced thirty-eight acres, which was subsequently sold and conveyed by them to the applicant for patent; that afterwards, to wit, on the 16th day of June, 1882, the said Knapp, applicant for patent as aforesaid, made an additional location, embracing the 38 acres acquired by purchase from Ballow & Strohm, with the addition of enough more to make the area of his claim 66.23 acres, to wit, an addition of 28.23 acres.

Thus, as purchaser under the location made by Ballow and Strohm, applicant claims 38 acres, and by virtue of the relocation made by him on the 16th day of June, 1882, he claims 28.23 acres additional. Applicant's claim as purchaser to said 38 acres is perfect, as shown by the abstract of title, and would be to that extent, in the absence of the relocation, approved for patent on receipt of satisfactory proof on the points indicated.

Under the regulations of this office, said relocation of June, 1882, must be restricted to 20 acres additional to the area covered by the purchase from Ballow and Strohm, and said amended location being in excess of 20 acres additional to the 38 acres acquired by purchase from the origi nal locators, the same is null and void as to such excess, and to that extent must be canceled.

Outside of his original purchase the applicant will, however, be allowed

to designate the 8.23 acres or portion of the claim to be canceled, and after such designation has been made, the survey will have to be amended to conform thereto.

CONSTRUCTION-LEGAL SUBDIVISIONS—UNNAVIGABLE STREAMS—USU

FRUCT.

2. WILLIAM RABLIN.

Sections 2329 to 2331, Rev. Stat., should be construed as requiring placer claims situated upon surveyed lands to conform to the legal subdivisions thereof, only where reasonably practicable.

A placer location may include the bed of an unnavigable stream, and the locator has an usufruct in the water therein.

Secretary Teller to Commissioner MoFarland, January 5, 1884.

SIR: I have considered the appeal of William Rabliu from your de cision of January 16, 1883, holding for cancellation his mineral entry No. 819, for the Bear River Extension Placer, in Secs. 12, 13, and 14, T. 15 N., R. 9 E., Sacramento land district, California.

It appears that the location was made since 1872, and after official survey of the adjacent territory, that it covers the bed of Bear River for some 12,000 feet and a small quantity of surface-ground along its banks, and that it does not conform to the system of surveys. From the evidence on file it appears that the "Bear River" is a very small, unnavigable stream, winding through a cañon, with precipitous, non-mineral, and uncultivable banks, wherein have accumulated extensive placer deposits, which are embraced in said location.

Your decision is grounded on the alleged fact that the location does not conform "as near as practicable" to the system of public surveys, for the reason that the law requires "that placer locations upon the surveyed lands shall conform to the public surveys in all cases, except where this is rendered impossible by the previous appropriation or reservation of a portion of the legal subdivision of ten acres upon which the claim is situated." I think that sections 2329 to 2331, Rev. Stat., should not receive so narrow a construction. While they provide for ten-acre subdivisional surveys, they also contemplate cases where it is not practicable to conform the location to such subdivisional lines. They do not limit such cases to those where there has been a prior appropriation of a part of the subdivision, but extend it to every case where it may be impracticable to so locate the claim. The expression "as near as practicable" is therefore to be read "as near as reasonably practicable," and in each case presenting itself a sound discretion must be exercised in determining the question of practicability. It would be manifestly improper to limit it to a single case, namely, a prior appropriation of part of the subdivision, as your office seems to have done; for such a case is provided for by the general laws concerning the disposal of public lands, and in

the placer-mining statutes, Congress has evidently intended to provide for cases where the situation of the deposits is such that conformity of the location with subdivisional lines is unreasonable. It was the intention of the mining laws, generally, to permit persons to take a certain quantity of land fit for mining, and not to compel them to take such a quantity irrespective of its fitness for mining. The act of July 9, 1870, which expressly required placer locations to conform to the lines of the public surveys, was unreasonable, a hardship, and in contravention of the established custom of the mining regions; therefore it was modified by the act of May 10, 1872, so as to provide for exceptional cases where reason and common-sense required a different regulation. Such an exceptional case, in my judgment, is that now before me, where the entire placer deposit in a cañon within certain limits is claimed, and where the adjoining land on either side is totally unfit for mining or agriculture. As to the additional reason for cancellation suggested in your decis ion, namely, that it is against public policy to allow placer-mining in the beds of unnavigable streams, and that the patentee would obtain a right to and control over the water, it is not necessary to discuss these points at length, I think. It is well settled that if the beds of unnavigable streams contain mineral deposits they may be appropriated for mining purposes, and that, as to the water, the locator obtains only an usufruct in it.

For these reasons your decision is reversed.

Herewith are returned the papers accompanying your letter of March 20, 1883.

XII-PRACTICE.

HYPOTHETICAL CASES.

1. WILLIAM LLOYD PEACOCKE.

The Department will not decide questions irregularly presented.

Commissioner McFarland to William Lloyd Peacocke, Salida, Colo., December 14, 1883.

SIR: Your letter of the 1st instant to the honorable Secretary of the Interior, asking a decision as to the validity of your coal declaratory statement No. 5, at the time it was made at the land office at Del Norte, has been referred to me for reply.

You are advised that the Department declines to express an opinion on hypothetical cases. When the case comes up in proper form it will be decided.

I have stated substantially the same thing in three former letters to you on this subject. You will no doubt see the impropriety of a decision in a case irregularly presented, without a full knowledge of the facts, and without opportunity for other parties to be heard.