where such claims are held in common, such expenditures may be made upon any one claim; and upon a failure to comply with these conditions the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon their claim after failure and before such location.

It appears from the testimony submitted at a hearing to ascertain the facts, that, on December 1, 1881, a written contract was made between the owners of the Favorite claim and one Williams, by which the latter agreed to develop this mine by tunnels and cross-cuts to the extent of at least fifty feet, (said development to include the assessment thereon for the year ending December 31, 1881, as required by law), and to do and complete said assessment to the full value of one hundred dollars within the time named. The size of the tunnels was agreed upon, and the whole work was to be done "with a view to develop said mine on a systematic plan," and with a view "to its permanency and full security;" and, in compensation for his services, said Williams was to receive three-fourths of the net proceeds of all the pay ore extracted from the tunnels and cross-cuts during the continuance of the agreement, namely, to May 1, 1882. Williams forthwith commenced work upon the mine, assisted by his hired-man, Johnson. The two worked upon sundry days during the month, sometimes together and sometimes separately. Williams testifies that he kept a memorandum (which he recites in detail) of such work, and that the value of their work, at miner's ordinary wages, amounted to more than one hundred dollars. Johnson could not be found, and was not a witness at the hearing, but his affidavit accompanying the protest was filed, to the effect that not more than four or five days' work was done by both himself and Williams, the value of which did not exceed fifteen dollars, and that no work was done by either after December 24. In a later affidavit he says that he and Williams were working together upon sev eral other mining claims during that month, and that he remembers of working, himself, for five days upon the Favorite, and he may have worked more. He does not distinctly remember as to this, but he does remember that he worked all day on this miùe upon Saturday, December 31, 1881, His general want of remembrance, and his contradiction in these affidavits upon material points, weaken his whole testimony, and do not detract from that of Williams. There is much other conflicting testimony as to the value of this work, the witnesses for applicants testifying, in the main, that it amounted to one hundred dollars, or more, and those for protestants that it was a less sum. But they all express opinions merely, without knowledge of the actual time expended by Williams and Johnson. Williams is the only witness who knows the real facts, and I find nothing in the case to discredit his testimony.

But whatever might be the conclusion in this respect, there are other questions pertinent to the subject-matter. The statutes of Colorado (p. 538, ed. of 1883) make certain days, among which is that of January

1, holidays, and provide that in case any of said holidays fall upon a Sunday then the Monday following shall be considered as the holiday. Section 137 (p. 51) of the civil code of Colorado provides that a district court of the State, or any judge thereof, shall have power to issue writs of injunction for affirmative relief, having the force and effect of a writ of restitution, restoring any person or persons to the possession of any mining property or premises from which he or they may have been ousted by fraud, force or violence, or from which he or they are kept out of possession by threats or by words or actions which have a natural tendency to excite fear or apprehension of danger, or whenever such possession was taken from him or them by entry of the adverse party on Sunday, or a legal holiday, or while the party in possession was temporarily absent therefrom; the granting of such writ to extend, however, only to the right of possession under the facts of the case, in respect to the manner in which the possession was obtained, leaving the parties to their legal rights on all other questions.

Section 1, chapter 41, of the Colorado statutes provides that no person shall enter upon or into any land, tenements, or other possessions, except in cases where entry is given by law, and then only in a peaceable manner; and Section 2 provides that if any person or persons shall enter upon any mining claim with force or a strong hand, whether any person be actually upon or in the same at the time of such entry or not, or if any person shall enter peaceably upon a mining claim, whether any person be actually upon the same at the time of such entry or not, and shall by words or actions which have a natural tendency to excite fear or apprehension of danger, frighten the party out of possession and retain and hold the same, or shall by such words or actions intimidate the party entitled to possession from returning upon or possessing the same, or shall hold and detain the same, the person or persons so offending shall be deemed guilty of a forcible entry and detainer.

Section 30 (p. 726) of these statutes provides that in all cases when two or more persons shall associate themselves together for the purpose of obtaining the possession of any lode then in the actual possession of another by force, violence, or by stealth, and shall proceed to carry out such purpose by threats against the party in possession, or shall make any threats or use of language, signs, or gestures calculated to intimidate any person at work on said property from continuing to work thereon, or to intimidate others from engaging to work thereon, they shall be subject to fine and imprisonment.

It is clear from the testimony that Williams and Johnson (or one of them) worked on this mine December 31, 1881; that when they left it on that evening their working tools were left there with the intention of resuming work; that Williams returned to it early Monday morning for that purpose, but found the mine in possession of these protestants, who were armed, and who informed him of their possession and that he could

not work upon the mine. This possession was obtained after midnight of December 31, 1881, and prior to seven and one-half o'clock, a. m., January 2, 1882-upon Sunday, January 1, or upon Monday, January 2, which was a holiday-by stealth, in the temporary absence of the applicants, in violation of the laws of Colorado; and the applicants were prevented from continuing their work by the language and conduct of the protestants, also in violation of said statutes. It was therefore a possession illegally acquired, and did not give the protestants the right to re-locate the premises. A tortious entry is unavailing for the purpose of a valid location of a mining claim; (Belk r. Meagher, 104 U. S., 279, 285.) The court further say in this case, that a mining claim perfected under the law is property in the highest sense of the term; that such claims are not open to relocation until the rights of a former locator have come to an end; that a relocator can not avail himself of mineral in the public lands until the discoverer has in law abandoned his claim, and left the property open for another to take up; and that a relocation on lands actually covered at the time by another valid and subsisting location is void. In North Noonday M'g Co. v. Orient M'g Co. (6 Sawyer, 299), the court say: "The statute nowhere authorizes a person to trespass upon or relocate a claim before properly located by another, however derelict in performing the required work the first locator may have been, provided he has returned and resumed work and is actually engaged in developing his claim at the time the second locator enters and attempts to secure the claim." See also Jupiter M'g Co. v. Bodie Cons. M'g Co., (7 Sawyer, 96). The present case is within these rulings. The applicants had not by intent or in fact abandoned their claim, but were in its actual possession, engaged in its development, when the protestants by a tortious entry attempted their ouster. Such action was illegal and did not deprive the applicants of their rights, which remained the same as if they had completed their assessment work in 1881, even if this were not in fact done, with the right also to prosecute said work in 1882 and until a valid relocation was made by another.

There is another conclusive objection against the forfeiture of applicants' claim on the ground alleged. The Continental Lode claim is adjoining to and parallel with the Favorite claim. They are both owned by the applicants. The required assessment work for the Continental for the year 1881 was performed. Work on the Continental was with the intent also to develop the Favorite. A drift in the former was run in the direction of the latter, under the advice of mining experts with reference to improvement of both. Work on the Continental was therefore, under the law, work on the Favorite. The court say, in Mt. Diablo M. & M. Co. v. Callison (5 Sawyer, 439): "Work done outside of the claim, or outside of any claim, if done for the purpose and as a means of perfecting the claim, as in the case of tunnels, drifts, etc., is as available for holding the claim as if done within the boundaries of the claim itself. One general system may be formed well adapted and

intended to work several contiguous claims or lodes, and, when such is the case, work in furtherance of the system is work on the claim intended to be developed by it." See also Smelting Company v. Kemp (104 U. S., 636), and Jackson v. Roby (109 U. S. 440).

I am of the opinion that, under the testimony, the required assessment work for 1881 was done on the Favorite mine; and if there is doubt of this under the conflicting proofs, then that the protestants, upon whom was the burden of proof, have failed to preponderate the same in their own favor and thus show the delinquency of the applicants and establish their own claim. In Mt. Diablo v. Callison (supra) the court say: "Forfeitures have always been deemed in law odious, and courts have universally insisted upon the forfeiture being made clearly apparent before enforcing it." For these reasons, as well as for what is above said in respect to work on the Continental mine, I think the protest should be dismissed, and I affirm your decision.

SETTLEMENT; PRE-EMPTION-CONFlicting grant.

EMMERSON v. CENT. PAC. R. R. Co.

The pre-emption act of 1841 not only created a pre-emption right, or preferred right of purchase, but it legalized settlement on the public domain with a view to cash entry, and made such settlement by a qualified person the basis of a claim (within limits) against the United States. By such settlement a pre-emption claim attaches to a tract, to be consummated by final proof and entry, and to be forfeited only in favor of other purchasers. It is this equitable though inchoate claim which is contemplated as excepting a tract from the operation of various railroad grants, and it exists after the mere pre-emption right has been forfeited by failure to file or to purchase as required.

Secretary Teller to Commissioner McFarland, December 29, 1884.

I have considered the motion of the Central Pacific Railroad Company for a review of my decision in the case of Henry Emerson v. said Company (3 L. D., 117), made September 18, 1884.

The motion proceeds, first, upon the ground that the contemporaneous construction of the pre-emption act of 1841, and the subsequent legislation of Congress (Section 2272, Revised Statutes), show that a right of pre-emption to "offered" land expires on failure to file notice within thirty days or to make payment within twelve months after settlement, and that said construction has ever since obtained; that the pre-emption right of Hutchinson had expired and been forfeited, by his .failure to so file and make payment, at the time the right of the road attached; and that therefore it was error to hold that it excepted the tract from the grant.

Whilst the conclusion is denied, the premises are admitted, as they

were substantially in said decision. Hutchinson's "right of pre-emption" had been forfeited at date that the grant took effect; but what followed Merely the right of some other purchaser to enter the land; (Section 2264, Revised Statutes). A right of pre-emption on offered land is simply a preferred right of purchase over third persons for twelve months after settlement, dependent on the filing of a declaratory statement; (J. B. Raymond, 2 L. D., 854). From the early days of the national land system the right of private purchase, or private entry, of offered lands had existed, and priority of right had depended on priority of the offer to purchase. The pre-emption act added to this right of private purchase a right to hold the land for a year after settlement, on filing a declaratory statement for it. By the pre-emption law Congress said to the settler, if you will give due notice of your intention to claim the tract, you shall have a preferred right to purchase it for the twelve months; but if you fail to make the purchase, or to file the required notice, the first purchaser who applies for it shall have it. This still left to the settler the right of private entry, in common with all other citizens; but, your office having construed the act as denying said right to one who had filed the notice (1 Lester, 369), it became necessary for Congress in the Act of 1843 to declare that "said act shall not be so construed."

The Act of 1841, however, did more than create a "right of pre-emption," or of purchase before others; it legalized settlement on the public lands with a view to cash entry, which before had been trespass, and made it the basis of a claim against the United States; "it protected settlements already made, and allowed future settlements to be made. with a right to pre-emption"; (Johnson v. Towsley, 13 Wall., 72). Under the act, "every person (qualified) who makes a settlement in person on the public lands . . and who inhabits and improves the is authorized to enter

same

a quarter section, to include the residence of such person" (Sec. 2259, R. S.). The right herein described is not the right to hold the land for a year against third persons, but a right against the United States which the government will recognize (within limits) after the preferred right has been lost. It is the equitable though inchoate right which was conceded in Frisbie v. Whitney (9 Wall., 187),—which was protected by the decis ion in Johnson v. Towsley (supra),—which was recognized in the case of Trepp v. Nor. Pac. Railroad (1 L. D., 396),—and which is contemplated in the various acts granting lands to railroad companies.

In the grant of 1862 to the Central Pacific Company, the exception was of laud "to which a pre-emption or homestead claim may not have attached." It has been uniformly ruled that the pre-emption law bases the pre emption right on settlement, as the homestead law bases the homestead right on entry; and by settlement, which is the initial act in pre-emption, a pre-emption claim against the United States attaches, to be consummated by final proof and entry, and to be forfeited only in