Senator WALSH of Montana. Then, as I understand, only section 27 has been patented. Mr. FINNEY. Yes, sir, and there was no charge of nondiscovery there. Senator WALSH of Montana. Yes. Mr. FINNEY. As to all these other claims, no patents have been issued or entries have been made, but charges are pending against them, and against a number of other claims, making 124 in all brought by the field division, alleging that assessment work has not been done for certain years on any of them and it has not been resumed. Senator WALSH of Montana. So this one section is all of the claims patented. Mr. FINNEY. Yes, sir. Senator WALSH of Montana. The locations are all made then by congressional subdivisions. Mr. FINNEY. Yes, sir; this is a surveyed township and the locations were made by subdivisions, some in squares, and some as you see. That one, for instance, Triumph No. 24, was apparently a mile long. Senator WALSH of Montana. Well, all the Triumphs are a mile long, are they not? Mr. FINNEY. Yes, sir, apparently; the series on the east side of the township Triumph claims are made a mile long. Senator WALSH of Montana. These are the names of the locators of the claims, are they? Mr. FINNEY. Yes. Senator WALSH of Montana. Triumphs 1 to 44, inclusive, located April 5, 1918, by E. A. Dow, Charles E. Hubbard, C. L. Hubbard, H. T. Hubbard, E. E. Hubbard, Ruby Hubbard, Edna Hubbard, Mary Hubbard, Josephine Hubbard, and Sadie Dow, Sadie Dow probably being the wife of E. A. Dow. Mr. FINNEY. I imagine that these women are wives, daughters, or relatives of Hubbard or Dow, as the case may be. Here are the others. Senator WALSH of Montana. I do not recall what the testimony shows concerning the Dow-Hubbard group as contrasted with the J. D., T. D., F. D., C. D., C. C. D., and A. D. groups. Mr. FINNEY. Now, you will recall, Senator, that in the FreemanSummers case, there was involved not only some of these Triumph. claims, but here are the J. D.'s, J. D. 1, 2, 3, part of 5 and part of 7. Now, you will find them in this group that was located by M. L. West and others. Senator WALSH of Montana. That is what I wanted to know. What relation is there between the Dow-Hubbard group and the groups marked "D"? Mr. FINNEY. Well, apparently some of the claims, at least including the ones that I have just mentioned, were acquired by Freeman and by the Standard Shale Products Co., who were the protestants against the Summers entry, acquired by purchase, I presume. Senator WALSH of Montana. Yes, but that is not what I mean. The Triumph claims were all located by Dow and Hubbard. Mr. FINNEY. Yes. Senator WALSH of Montana. And by whom were the claims marked "D". Mr. FINNEY (interposing). The J. D., Nos. 1 to 8, are said to have been located April 1, 1918, and were located by R. B. Bouldin, M. L. West, L. Morgan West, F. M. West, W. J. Wigton, M. Boyle, L. W. Leininger, and J. W. Woodstock. Senator WALSH of Montana. What relation, if any, was there between these two groups? Mr. FINNEY. Well, I don't know, except that evidently the titles had been acquired in some way by these men who protested the homestead. Senator WALSH of Montana. The Triumph claims 1 to 44 were located, or purport to have been located, on April 5, 1918. Mr. FINNEY. Yes. Senator WALSH of Montana. The J. D. claims and the other "D" claims purport to have been located on the first day of April, 1918. Mr. FINNEY. Now, Mr. Ely has just handed me one of the transcriptions of the testimony of one of the hearings, showing the crossexamination by Mr. Delaney of Hubbard. Q. How many claims did you locate while out there on that trip? A. Eighty-eight, as I remember. Q. How long did it take you to locate and survey these claims? A. I was there myself 11 days. Dow was there 21 days. The balance of them I can't say. Q. When did you start? A. I went up there I believe the 30th of March, Dow had been there before. In another part of the transcription of the testimony occurs the following: Q. What particular group of claims? A. The Triumph group, the J. D., the P. D., and C. D. Senator, I think that probably answers your question. Evidently this same outfit located the J. D., P. D., and C. D. Senator WALSH of Montana. Well, there appear to be two groups of locators here, Mr. Finney. Mr. FINNEY. Yes, sir. Senator WALSH of Montana. One group locating the Triumph claims. Mr. FINNEY. Yes, sir. Senator WALSH of Montana. And the other locating a group of claims designated J. D., P. D., E. D., C. D., C. C. D., and A. D. Mr. FINNEY. Yes, sir. Senator WALSH of Montana. Does the record show whether two groups of locators were acting in conjunction or under any understanding between them? Mr. FINNEY. What I have read, indicates that these men, Dow and Hubbard, and the people that were with them, located them all. Senator WALSH of Montana. That is, Dow and Hubbard located them all? Mr. FINNEY. Yes, they, with their assistants, did the actual locating. That is what this testimony says. Another question was asked by this lawyer on cross examination: Q. What other persons assisted in the location of these claims? A. Well, there was Joe Jewhan, he ran a transit, Dow ran a transit. They had two transits going. I am telling you who were there Senator WALSH of Montana. I understand. I am not speaking about the actual men who carried the transit and who carried the chain and that kind of thing. It is perfectly obvious, Mr. Finney, here, that there was a complete understanding between the two groups of locators. Mr. FINNEY. The same parties, or the same party, if you call it that, Dow and Hubbard, located them all. Senator WALSH of Montana. Located them all? Mr. FINNEY. Yes, and in one group they used the names of the Hubbards and Dows, and in another they used certain other names. I don't know who those people were. Senator WALSH of Montana. That is what I wanted to know. What does the testimony show concerning the relationship between these two groups? Mr. FINNEY. I don't know. There was no charge that these were dummy locators. That was not gone into. Senator WALSH of Montana. If Dow and Hubbard actually did the locating on the ground, superintending it, then these other locators, Bouldin, West, and the remainder, were not there on the ground. Mr. FINNEY. There is no evidence to show they were on the ground. Senator WALSH of Montana. If they were located by Dow and Hubbard, there must have been some agreement between Dow and Hubbard on the one hand and these locators on the other. Mr. FINNEY. They must have been acting in some way as their agents or representatives. Senator WALSH of Montana. Yes. And, the testimony does not show anything at all about that? Mr. FINNEY. I do not recall that it does, and it made no impression upon me because, as I say, there was no charge of dummy location in this case by the agents. Senator WALSH of Montana. Well, would not the very map for that matter suggest something of the kind? Mr. FINNEY. I don't think so. You and I know how often people locate claims as agents for others, and the abstracts of title will show transfers, deeds from the locators to someone else, and unless there is some suggestion by an agent or by someone else that there is collusion or a dummy location, why ordinarily it is not presumed. I think we were absolutely justified in assuming that the other parties to the contest, or the field division, would have uncovered it if there had been any evidence, on the face at least, of dummy or collusive locations. It is true that Mr. Kelley's division was not primarily in the case because the contest started by Freeman protesting the homestead entry, but Mr. Kelley, of course, was authorized to intervene, and then of course he, like other field division chiefs, had general authority to investigate all land claims within his division. Senator WALSH of Montana. Well, it appears that this Dow and Hubbard, so far as they actually did locate anything at all, located, I should say, three-fifths of the township. Mr. FINNEY. Yes; I think one of the reports shows that there were some other locations that some of their names were used in. You asked me to map out the 88 that were involved here. Senator WALSH of Montana. Yes. Mr. FINNEY. Now, here is the special agent's report, dated January 28, 1931, and approved by the present Chief of Field Service, J. Arthur Moore, covering these claims here, with the exception of the ones that are patented, and covers more, making a total of 124, alleging, as I stated to you at the beginning, nonperformance of assessment work and failure to resume. Now, at the end he gives lists of the whole 124, and includes-if you will look here, the Triumph 1 to 24, as shown on the map. Senator WALSH of Montana. One to forty-four. Mr. FINNEY. Yes. Then, here is a Big Bill, 1 to 8, located March, 1918, by Chriss Deere, and a number of Hubbards. That is not shown on there. Here is the Chicago, 1 to 4, and the Smuggler, 1 to 4, located in March, 1918. No Hubbard or Dow names appear among the locators. Then, there is the Central Creek, 1 to 8, located March 18, Deere at the head, but the names of four Hubbards are included in that. Then follows the F. D.'s, which I pointed out to you a moment ago, located by West and crowd, and no Hubbards or Dows appearing in there. This report covers a total of 124. Senator WALSH of Montana. That is to say, Dow and Hubbard participated in the location not only of 88 claims, but in an aggregate of 124 claims. Mr. FINNEY. That is not quite correct as shown by this report. They took part in the location of the 88 here. Senator WALSH of Montana. Yes. Mr. FINNEY. Apparently, and on the face of this record in the location of 16 more. That is, their names appear in 16 more. Then, after this other crowd, Shaw and so forth, I don't know what connection they had. Senator WALSH of Montana. At least, Dow and Hubbard appear in 104 claims? Mr. FINNEY. Yes. Senator WALSH of Montana. If they did representation work, that would mean $10,000 a year? Mr. FINNEY. Yes, sir; $100 a claim. Evidently they have not been doing it because this report that I just exhibited charges them with failure to do the work and failure to resume, and we have instituted proceedings on that ground against them. Senator WALSH of Montana. I think that is all on that matter, Mr. Finney. Complaint is also made, Mr. Finney, in the Kelley articles, about the continuance of the cases on account of the pendency of the Krushnic case. Mr. FINNEY. Yes, sir. Senator WALSH of Montana. Now, just tell us what the question involved in the Krushnic case was. Mr. FINNEY. Yes, sir. Let me say at the start, that the departmental decision, the first departmental decision in the Krushnic case was rendered by myself on October 3, 1927, and perhaps I can tell it more concisely by just reading a part of the syllabus. Senator WALSH of Montana. Very well. It is a very simple matter, is it not? Mr. FINNEY (reading): A valid mining location unperfected at the date of the leasing act of February 25, 1920, by a certificate of entry, is forfeited upon failure to fulfill the statutory requirement as to annual labor and improvements, and the land therein becomes subject to disposition only under that act. Meaning the leasing act. That is in short what it is about. Mr. FINNEY. After this decision there was quite a furore out in Colorado and quite a lot of criticism of the decision as being wrong in law and arbitrary and so forth, and a reconsideration was sought of Secretary Work, and a request, or requests, made for a hearing before him on this subject, and he did hold such a hearing. As I recall, he advised the applicants that it was not necessary to have such a large group appear as had appeared in the old hearing on December 1, 1926, but he would hear some representatives if they would select several representatives, and my recollection is that a comparatively limited number came on. I think ex-Senator Thomas was one. Mr. Larwill, of the firm of Lindsey and Larwill, of Denver, who were attorneys for this particular claim, and one or two others were present, and there was quite an extended argument. Now, on February 8, 1928, Work signed the decision adhering to the one I had previously rendered and holding the claims for rejection. Now, I can take the general matter of continuances up in order, because I have prepared some Senator WALSH of Montana (interposing). You have not made clear yet what the question involved was. Mr. FINNEY. In this particular claim, it was charged that the owners of a location known as the Spad Mining Claim, had failed to perform annual assessment work on or for the development of this claim during one or more years, and that that failure had automatically forfeited their title under the general mining laws. Senator WALSH of Montana. Was that before the act of 1920, or after? Mr. FINNEY. The hearing? Senator WALSH of Montana. No; the default. Mr. FINNEY. The default was, as I recall it, in the year 1920, and the leasing act was passed February 25, 1920. Senator WALSH of Montana. And, it was claimed that during 1920 the work had not been done. Mr. FINNEY. Yes; and it was our view that that had forfeited the claim and that the lands thereafter were subject to lease. Senator WALSH of Montana. Then, they secured a review of that in the court. Mr. FINNEY. Yes, sir; that was carried into the courts. Senator WALSH of Montana. Just what proceeding was taken? Mr. FINNEY. The original proceeding was a proceeding in the court here in the District of Columbia to mandamus, as I recall it, to compel the Secretary to issue patent on the ground that he erred in law. They were sustained in these courts here below, in the district courts, and we secured a writ of certiorari to the Supreme Court, and on the merits the Supreme Court of the United States |