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Sixth, the presumptive mineral character of the land arising from its classification as such, or evidence establishing its mineral character have nothing to do with determining the burden of proof to establish a superior right to the surface of the land by virtue of these locations. The burden lies with the contestant attaching the entry to establish his priority of right by a preponderance of evidence. Willis 1. Parker (8 L. D., 623), Scott v. King (9 L. D. 299). Discovery being a vital question in this case, other contentions made by counsel will be passed to consider the evidence bearing thereon.

In support of the locations, certified copies of the location certificates were submitted reciting that the claims were located on April 1, 1918, and they bear certificates that they were recorded on April 18, 1918. The lands covered by these claims according to the certificates are as follows:

NE14 section 2, J. D. Group No. 1.
VW'94 section 2, J. D. Group No. 2.
NE14 section 3, J. D. Group No. 3,
NW14 section 3, J. D. Group No, 5.
SE14 section 2, F. D. Group No. 7.

The testimony is not disputed that the land lies at an altitude of from 7,450 to 8,400 feet; that the surface formation is the upper Green River, containing comparatively lean strata of oil shale; that the prospectively valuable oil shales lie in the middle member of this formation which lies stratigraphically below and by geological inference is believed to underlie the land in question but not exposed thereon.

For the contestant, H. J. Hilton testified in effect that he is a mining engineer and geologist, and had, at times not specified, made considerable study of the geological structure and conditions on the lands in question and on neighboring lands, and had traced the outcrops of oil shale which continued uniform and regular and without earth disturbance to escarpments about 314 miles distant where they were studied, sampled, and subsequently analyzed for their vil content. A diagram was introduced, through this witness, purporting to represent an ideal vertical geological section of the shale deposits and formation from the highest point on the land to a depth of 0.50 feet below the Summers cabin. which was made from the study of the outcroppings in the vicinity. According to this diagram and the testimony adducend in connection therewith, Hilton arrives at the conclusion, by geological inference and calculations, that a bed of shale oil lies 50 feet (vertically) below the Summers cabin ani a commercial bed of oil shale 61.8 feet in thickness, sampling 28 gallons of oil a ton, lies at a depth of 530 feet below the cabin mentioned. These measure. ments of the oil shale bed were taken at an escarpinent near Parachute Falls and witness states that he knows that they underlie the land because he traced the exposures; that he found exposures of oil shale on each of the claims and took samples of them, but did not consider it necessary to get the width of the beds in view of the large beds of shale that lie below and will be first worked; that the cost will not permit the stripping and quarrying on the land in question, but in his opinion it could be worked by shafts. Diagrams and photographs taken by this witness were introduced to show the position of the outcrops of oil shale on this and other lands in the vicinity. One shale bed, of undermined thickness and estimated to yield 7 or 8 gallons a ton, is specified as outcropping at a point marked "Arrow F” on Exhibit 9, which appears to be, from the diagram, on the J. D. No. 2 claim.

Hilton testified on cross-examination that there were no assessment holes on the ledge exposed on the Summers land; that the beds he found on the land were not valuable for their oil content but are proof of the existence of the Green River formation and an indicator of the rich bells in the middle series lying below; that on the surface they look worthless and run low in oil content but may have possibilities and there may be a change in their oil content at depth ; " but at the present time they are of no value as oil shale for their oil content" (p. 120). The witness further stated that no commercial plant of commercial size for retorting oil had ever been built. This statement evidently has reference from its context to the United States or to a more limited field. The material testimony of H. Comer Wolfe bearing on the question of discovery is in substance as follows: That as a mining engineer and geologist he has made over 5,000 tests of oil shales in the district including this land. He made the statement that 25 samples were taken from the claims in question, but it developes in his testimony on cross-examination that nearly all these samples were taken from surrounding lands and at the escarpment mentioned on Parachute Creek. The witness, however, states that they were

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taken from beds that were traced to the lands in question ; that he knows that the ledges from which the samples were taken underlie the land because he had taken them entirely around the field and the beds are uniform in content and thickness; that one of the beds that can be traced to the land yields 19 gallons of oil a ton; another bed, 2 inches thick, is specified and was sampled 6,000 feet east of the land, which when analyzed ran 30 gallons to a ton. Another bed of shale 4 to 6 feet thick is stated to lie 400 feet above a 61-foot shale bed and outcropping within a mile of the Summers place ran, according to the sample taken, 9 gallons of oil to a ton.

He further states that he did not search for these outcrops on the Summers place; that the only samples taken from the outcropping on the land in question were from leaner beds which was proof of richer beds to search for. He specifies the location of one exposure of oil shale with some precision by stating that his sample was taken in an assessment hole 400 feet east and 100 feet north from the south quarter corner of section 2, which would be on the SW. 14 SE. 14 of said section and within the bounds of the F. D. No. 7 claim. The shale tested from this last-mentioned exposure was 4 feet thick and yielded 7.9 gallons of oil a ton and indicated a 30-gallon bed below. He also mentioned a bed 32 feet in thickness on adjoining property which yielded 32-gallons a ton, and when asked if he had taken samples of like character from each and every placer claim involved in these proceedings, answered no, that he had taken samples of variable richness from each of the claims in question yielding from a maximum of 30 gallons to a minimum of 2 gallons a ton. It developed, however, upon cross-examination (pp. 150, 153) that he took but one sample from the homestead claims in question running 2 gallons a ton of oil “ which was the top indicator of a lean grade bed." He was of the opinion that the exposed ledges of oil shale in question produced 5 gallons to the ton, but was unable to designate their location.

Carlton Hubbard testified that while engaged in the survey of the claims in the latter part of March and fore part of April, 1918, we made discoveries of oil shale on all of the claims” (p. 74); that he knew it was oil shale and brought several samples in camp to test it; that in some places it was taken from a ledge, that it was taken from the place nature put it; that he was not familiar enough with the land to state where he made the discoveries: that he knew certain of the samples from the F. D. claim would produce shale but does not know how rich it is; “it might be one gallon, it might be a hundred (p. 2.5).

The evidence as above set ont substantially embodies the material testimony that was adduced by the contestant in support of his allegations of discovery. It compels the conclusion that the oil sha les actually exposed on the claims in conflict with the homestead entries are of no value for their contents. The deeper beds of shale which are presumed to underlie this land and which are considered of commercial value have not been exposed on the land; and it is not shown by evidence of any probative force that they will become valuable for mining purposes, when the tremendous overburden and the accessibility of other large bodies of richer shale exposed in bold escarpments elsewhere are taken into consideration.

However certain or justifiable the inference, geologically, that the lean beds of oil shale outcropping on the land indicate richer and valuable beds at depth, it is apparent that they have no physical connection with such deeper beds of rich deposits nor are they continuations of them, but are separate and distinct therefrom.

The testimony is silent or indefinite also as to the location of the outcropping deposits with reference to the particular claims in controversy, except for the specific instances heretofore mentioned, so that it can not be determined on just what claims any of the outcrops mentioned in the testimony occur.

In present case there appears to be an attempt to substitute observation and geologic inference for discovery. In the case of East Tintic Consolidated mining claim (40 L. D. 271), affirmed on rehearing (41 L. D., 255), the department held:

" The exposure, however, of substantially worthless deposits on the surface of a claim; the finding of mere surface indications of mineral within its limits; the discovery of valuable mineral deposits outside the claim ; or deductions from established geological facts relating to it; one or all of which matters may reasonably give rise to a hope or belief, however strong it may be, that a valuable mineral deposit exists within the claim, will neither suffice as a discovery thereon, nor be entitled to be accepted as the equivalent thereof."

It is true that on a further showing of facts and a reargument in connection with a motion for exercise of supervisory authority, the department reversed its decision in that case on other grounds; but the principle above cited has never been repudiated or qualified. On the contrary, it has been reannounced in the recent decision of Oregon Basin Oil & Gas Co. (50 L. D. 244). In that case it was found that the formations froni which the oil values are expected to be developed within the limits of the claim exist many hundred feet below and are wholly unconnected with the formations penetrated in the holes drilled. In that connection the department held :

"Nor can the facts that the land may be geologically known to contain at depths formations and sands which have been proved in other fields to be heavily productive of oil; that the land has been in effect classified by the Geological Survey as valuable on account of petroleum deposits; or that above the supposed oil-bearing formations there exists within the limits of the claim gas deposits for which at the present time there is no available market, and which, on account of the excessive pressure thereof, can not be successfully drilled through in order to reach the supposed oil-bearing formations sought, be accepted by the department as the equivalent of a discovery.

On the motion for rehearing of this case the following language was used:

" The department is aware of no decision wherein, citing the rule announced in Castle v. Womble, it has ever taken into consideration the proven presence within the limits of a mining claim of deposits not actually and physically exposed therein as a ground for sustaining the sufficiency of an asserted discovery based upon the exposure within the limits of the claim of a deposit that did not warrant or justify the expenditure of time and money with a reasonable prospect of success in the development of a valuable mine on the particular deposit so exposed."

The contestant's attorney in his brief before the department contends in effect that the decisions applicable to pool oil should not be applied to oil-shale deposits because " these shales can not be pinched or squeezed out like the oil in oil sands to a synclinal fold or otherwise, any more than oil sandstone can be pinched or squeezed out independent of the oil contents,” and there being no question that immense bodies of shale underlie this land as found by the register and receiver, the hazard of chance of finding them is removed.

As to this contention, it is sufficient to observe that although, from the nature of the deposit, the geologic inference from the presence of near-by outcrops of rich beds of shale may be far stronger that they persist and underlie the land in question than would be an inference that certain lands contained valuable deposits of oil in oil sands deduced from geologic indications and discoveries on adjacent lands, yet it will be perceived from the reasoning and conclusions in the Oregon Basin case and the East Tintic case above cited, that the essential fact to be established is the disclosure of the valuable deposit on the land in order to constitute a discovery and the degree of assurance that the deposit exists from discoveries and geologic conditions on near-by lands was not an important or controlling element for consideration. Such adjacent or surrounding demonstrations of the presence of a valuable deposit on surrounding claims do not dispense with the essential requirement of the law that the valuable deposit must be discovered on the claim.

There not having been made any valid discovery of mineral within the bounds of any of these claims at any time, the mineral claimant can not successfully contend that there was, upon the evidence in this case, diligent prosecution of work leading to discovery prior to February 25, 1920, or indeed at any time.

The only evidence offered by the contestant as to work of any kind being done on or for the benefit of these claims relates to the performance of annual assessment work in 1919, 1920, and later. The work in 1919, according to the testimony of one Chris C. Dare, consisted in repairing, widening, and extending an old pack trail which terminates 21,2 miles from the claims. Dare stated that he spent $4,400 on this trail for the benefit of 44 claims including these here in question ; that a wagon could not get over it when it was finished ; that the claims can be reached by a more circuitous and longer route. The contestant states that men and supplies could be transported by pack trail over trails of this character; that he had used five other trails to get to these claims; that there had been a shorter trail later constructed ; that machinery and things of that kind could not be taken over it. The character and value of the work done on this trail, as testified to by Dare, was strenuously controverted by the contestee and a number of witnesses who passed over the trail before, after, and about the time this work was alleged to have been done, testified to the

effect that the improvement thereof was very insignificant and would not cost more han $50 or $100. The assessment work in 1920 and later consisted in digging shallow open pits either on the claims in question or nearby claims for the benefit of the claims as a group. In the case of United States 1. Northern American Oil Consolidated (242 Fed. 727), the court defined diligent prosecution of work on a mining claim as follows:

* It is enough if reasonable effort was made at that time indicating a bona fide intention to complete the work of discovery in the particular claim with all practical expedition; such intention being manifested by the doing of physical act or acts which had a direct tendency to facilitate the exploration for and discovery of oil or gas thereon, although drilling has not commenced and the work may not have been done on each claim." Smelting Co. v. Kemp, 104 U. S. 636, 26 L. Ed. 875; U. S. 1. Thirty-Two Oil Co. (D. C.) 242 Fel. 730, just decided ; l'. S. 1. Ohio Oil Co. (D. C.) 240 Fed. 996.

It is not perceived how a slight repair of a pack trail that has never extended to the land, and the digging of shallow pits as assessment work tended in any way to facilitate the exploration for or discovery of valuable deposits of shale that are presumed to underlie the land in question at depth and the department is of the opinion that at no time were the mineral claimants engaged in diligent prosecution of work to discovery on these claims.

The strenuous contentions and conflicting testimony as to the performance of assessment work is of no moment in the case assessment work had nothing to do with locating or holding a claim before discovery. On the contrary it was the condition subsequently prescribed by ('ongress to be performed in order to preserve the exclusive right to the possession of a valid mineral land location upon which discovery had been made. (McLemore v. Express Oil Co., 158 Cal., 559, 563." Union Oil Co. 1. Smith, supra.)

A great mass of testimony was offered on both sides relative to the value of the land for agricultural or stock raising purposes. This is not an essential question for decision in this case but the testimony offered in that connection very clearly established that a valley which traverses this homestead has a substantial and certain value for dry farming and stock raising that forage crops have been raised thereon by the entryman, and that he has resided upon and improved the land in good faith.

In conclusion, it may be stated that there is no merit in the conclusions of the contestant that the prior filing of the location certificates and staking and posting the land constituted suh an appropriation of the land as would preclude a right of entry under the homestead laws. “ Parties may not go on the public domain and acquire a right of possession by the mere performance of the acts prescribed for location, that is, where there is no discovery." (Lindley on Mines, sec. 218.) Mere "paper locations do not prevent appropriation of land under agricultural laws." (Hirchfeld 1. Chrisman, 10 L. D.. 112.). "And the recitals therein constitute no evidence of discovery." (Independent Load & Copper Co. 4. Levelle, on R hearing 50 L. 1. 5.) It is immaterial, therefore, what evidence of such locations was brcu'sht to the notice of the homestead entryman.

As no discovery within the meaning of the mining laws was made within the boundaries of any of the locations heretofore mention and as the chiuimants have not at any time been engaged in the prosecution of work to that end, the claims are of no validity.

In the case of conflict between a mining location and a homestead claim the department has authority to inquire into and determine the validity of both, and if the mining location be found invalid and the homestead claim valid, to declare the former null and void and give full effect to the latter, (Cameron v, U'nited States 252 U. S. 463.)

The mining claims in conflict with the entry of Summers and involved in this contest are therefore held to be null and void. The homestead entries of Summers will remain intact and the commissioner's decision is accordingly hereby reversed.

(Signed) E. C. FIXNEY,

First Assistant Secretary. Senator Walsh of Montana. Let me see if I can accurately state what the conclusion was as expressed in that opinion; namely, that although the mineral claimant had found on the surface of his claim, or by shallow diggings, oil bearing shale, there was not enough oil in it to justify the conclusion that that particular strata could ever be profitably worked and the fact that it was disclosed that there were underneath, as a geological probability, beds that would contain shale, or consist of shale, that could be profitably worked, that that did not amount to a discovery.

Mr. FINNEY. That, I think, is substantially correct with this modification. I did find in this opinion that they had not definitely placed the location of the alleged discoveries, or of the alleged outcrops, except in the case of the one claim, the J. D. No. 2, where they said it produced seven and nine-tenths barrels to the ton.

Senator WALSH of Montana. I thought that was gallons.

Mr. FINNEY. Yes, sir; gallons. In other words, they had not gotten right down to brass tacks and specified that on each of the five locations there had been either a hole dug exposing this open bed, or that there was an outcropping, but your statement is substantially correct; yes, sir.

Senator Walsh of Montana. I just wanted to get the principle, as far as there was any principle announced in there.

Mr. FINNEY. Yes.
Senator Walsh of Montana. You wrote that opinion, Mr. Finney?

Mr. FINNEY. I think that was written by an attorney in the office named Edson Phillips.

Senator Walsh of Montana. And, who participated in the inquiry on the review from the commissioner?

Mr. FINNEY. I presume it was reviewed by three members of our board of review, and the secretary's office, Mr. Gardner, Mr. Newman and Mr. A. W. Patterson.

Senator Walsh of Montana. Are they still there?
Mr. Finney. Yes; they are still performing the same duties.

Senator Walsh of Montana. Well, it would be one of them who wrote the opinion.

Mr. Finney. No; the paper was written by an attorney named Edson Phillips.

Senator WALSH of Montana. Upon consultation with the members of the board of review?

Mr. FINNEY. No; the practice is this, Senator, that an appealed case in our department is assigned out to one of the attorneys. You know we have a number of them, 19 at present. He reads the record, the testimony, the briefs and arguments, if there are any filed. Then he prepares himself a proposed decision for the approval of the Secretary, and that decision is forwarded through this board of review, on its way to the Secretary. The board of review, all of them, each of them, reads the proposed decision. If they agree, they put their names on the paper, or on the covering of the paper. If they disagree, they may call him in and discuss it with him or may suggest a modification. Possibly, if no agreement can be reached, they may have another attorney make a separate examination of the claim and prepare such decision as he thinks should be prepared, but if they agree with it they put their names on it and pass it along to the Secretary.

Senator WALSH of Montana. And, what did you say was the name of the lawyer who drew the opinion?

Mr. FINNEY. Edson Phillips.
Senator WALSH of Montana. And, is he still with you?
Mr. FINNEY. No, sir, he has been dead for three or four years.

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