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Location: We conclude from the evidence of various witnesses that an effort was made to stake the mineral claims mentioned in this contest prior to or at about the time of the filing of the location certificates. Probably be. cause of the season of the year and the ground conditions such staking was not done in a careful and permanent manner. However, there is not sufficient counterevidence to warrant other decision by this office than that the claims were staked.

Discovery: The land in this controversy was classified as valuable for petroleum and nitrogen on May 23, 1916, and the contestee, when applying for his homestead, accepted such classification. The classification of land, however, does not excuse a mineral claimant from an actual discovery in order to properly initiate his claim. In the case of Remis v. Murray (22 L. D. 411) it is stated : “ The fact that land is returned (classified) as mineral does not in any event avoid the necessity of a discovery of mineral and any location made without a discovery as required by statute is void.”

The evidence in this case discloses a grave question, whether any shale of sufficient value to ever be marketable is or ever has been exposed on that part of the Summers place in controversy.

It is the contention of the contestant in this case that oil shale values do not materially change throughout a certain stratum. It is evident from the estimony that the strata of oil shale or rock exposed on the Summers homestead by nature, or the efforts of the contestee or those in his service, or his precedecessors in title, are not and probably never will be valuable as oil shale deposits because of the thinness of the strata or the leanness as to oil content.

If there were a probability of these strata incrasing materially in thickness or oil content with distance from the surface, as in the case of certain precious metals, then a valid discovery might be claimed under the rule laid down that an actual disclosure of commercial ore is not essential to effect an adequate discovery (48 L. D. 598; U. S. v. Bunker Hill and Sullivan Mining & Concentrating Co.).

The contestant's own contention and one that is well supported in fact shows that all beds of oil shale are in place, each of a thickness which does not vary materially and of a certain oil content which varies but slightly. While there appears to be no question but that immense shale beds underlie this land at a considerable depth, it is just as clear that the higher strata exposed on the Summers place, and on which discovery is claimed, do not now constitute valuable deposits and by development in the future could not be expected to show such value as to make them merchantable. Hence it is our opinion that on such deposits a discovery can not be predicated on which to base a valid mineral claim to the land.

Assessment work: From this and other contests of a similar nature that have come before this office it appears that a “slacker” habit has developed throughout large sections of the oil shale region in reference to assessment work. There is a pretense of doing $100 worth of work per claim as annual assessment when in reality but a few hours' labor accomplished the work done at but a small fraction of the value of labor and improvements required.

To use an extreme illustration, the excavation of what miners usually term a “10-foot hole," may be accomplished in a shale cliff by a single blast that would cost but a few dollars at most.

It may be, and we believe usually is the case, that the owner of the claim pays the required amount of $100 per claim to a second person who expends but a modicum of that amount in the work. In such cases the owner may be considered an innocent victim in so far as he has allowed his interests to lapse through failure to give the matter supervision in person or by a trusty employee. He takes the chance and must abide by the result. Citing the case of Samuel B. Beatty et al (40 L. D. P. 486) in reference to the expenditure of $500 for labor or improvements on a mineral claim for which patent is asked it is stated : “ The proper test is whether the reasonable value of the work performed or improvements relied upon amounts to that sum. Proof of the actual amount paid or of the actual number of days spent in prosecution of such work is not conclusive."

And, more applicable to this case, in the same decision reference is made to a decision of the Circuit Court of Nevada in which it was held that the evidence of the amount of money paid for assessment work upon a mining claim, though not conclusive, is admissable as bearing upon the claimant's good faith, but the court adopted the rule that the work or improvements must reasonably be worth the amount required by statute.

It is clear from the evidence that the assessment work on these claims purported to have been done for the year 1919 on the Wilda trail by Chris Dore and others was not done in sufficient amount to hold these claims valid to the owners. Also, the lieu affidavit required in case work was not done was not filed.

According to circular 430, paragraph 13, and the law of this State, if assessment work is not accomplished for a period of time sufficient to invalidate the claim, but the owner resumes such work prior to the intervention of other claimants, the mineral claim would again be validated to the former owner. The assessment work for 1919 not being done on these conflicting claims, and no affidavit of intention in accordance with the act of November 13, 1919, being filed, these claims became invalid although still retaining to the owners the rights mentioned.

However, on February 25, 1920, before work was resumed on these claims, an act was passed by Congress, commonly called “The leasing act,” through and because of which all oil shale mineral claims invalid on that date reverted to the United States and became subject to the leasing act only. This removed any responsibility on the part of delinquent mineral owners to resume work and validate their former claims.

Further, the evidence shows conclusively that the assessment work done on these claims following the year 1919 and up to the present time has not been such that we can reasonably declare it to be worth, in labor and improvements, the sum of $100 per year for each claim.

Further, the valuable shale beds lie at some considerable depth beneath the lowest part of that portion of the Summers homestead in this controversy and no assessment work has been done that would tend toward the development of these beds with the possible exception of such inadequate work as was done on the Wilda trail.

Summary : Briefly, it appears that no actual discovery of oil shale has been made on the land in controversy, a requirement of the law (Remig v. Murray, 22 L. D. 409), although it must be admitted that it is apparently an unnecessary requirement where oil-shale claims are in consideration : That these claims had been allowed to lapse and were so lapsed at the time of the passage of the leasing act, February 25, 1920; that sufficient assessment work has at no time been done to hold these claims valid.

Decision: We therefore find that the contest of J. D. Freeman v. George L. Summers has failed and we render our decision in favor of the contestee, upholding his rights as a homesteader and the validity of his homestead entries 018825 and 018827 in so far as they apply to this contest, allowing to the contestant the usual right of appeal from this decision within 30 days from and after the receipt by him or his attorney of a copy of this decision.

WALTER SPENCER, Register.

CHARLES S. MERRILL, Receiver. Mr. FINNEY. Freeman appealed from the decision of the register and receiver, and on April 26, 1924, Commissioner Spry, of the General Land Office, rendered a decision reversing the register and receiver and finding that the mineral locations of Freeman were based upon sufficient discoveries, and he therefore held for cancellation the homestead entry of Summers.

Senator Walsh of Montana. Will you read the opinion of Commissioner Spry on the matter?

Mr. FINNEY. Read the opinion?
Senator WALSH of Montana. Yes.
Mr. FINNEY. (Reading):

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, January 16, 1931. I hereby certify that the annexed copy of letter dated April 26, 1924, filed under Denver 032576, formerly Glenwood Springs 018825, is a true and literal exemplification of the record on file in this office.

In testimony whereof I have hereunto subscribed my name and caused the seal of this office to be affixed, at the city of Washington, on the day and year above written.

Thos. C. HAVELL, Assistant Commissioner of the General Land Office.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, April 26, 1924. J. D. Freeman v. George L. Summers. Land held to be of known mineral character, and its development as such justified; conflicting homestead entries held for cancellation, REGISTER AND RECEIVER,

Glenicood Springs, Colo. GENTLEMEN : On May 10, 1920, George L. Summers filed homestead application 018825 to enter, under the act of February 19, 1909 (35 Stat. 639), the S. 12 NW. 14, N. 142 SW. 14. sec. 1; S. 142 NE. 14, N. 14, SE. 14 sec. 2; T. 5 S., R. 97 W., sixth principal meridian, and on the same date be filed additional homestead application 018827 to enter, under the act of December 29, 1916 (39 Stat. 862), lots 3, 4, S. 12 NW. 14 sec. 2; lots 1, 2, 3, and SE. 14 NE. 14 sec. 3, said T. 5 S., R. 97 W. The lands were accordingly designated and the applications were allowed, respectively, May 17, 1920, and January 18, 1921, application 018825 in accorda nce with and subject to the provisions and reservations of the act of June 17, 1914 (38 Stat. 509).

That was a reservation of the mineral. [Reading :)

Final proof in support of both entries were filed May 22, 1923. On May 21, 1923, however, J. D. Freeman filed a duly corroborated affidavit and application to contest the entries stating, in effect, that he claimed a prior right under the mining laws of the United States to certain lands embraced in said entries, pamely, the S. 142 NE. 14, N. 12 SE. 14, NW. 14 (lots 3, 4, S. 12 NW. 14), sec. 2, N. 12 NE. 14 (lots 1 and 2), SE. 14 NE. 14, NE. 14 NW. 14 (lot 3), sec. 3, T. 5 S., R. 97 W., sixth principal meridian; that these tracts are embraced in oil shale placer mining claims F. D. No. 7 and J. D. Nos. 1, 2, 3, and 5, upon each of which valuable mineral oil shale had been discovered and located April 1, 1918, by Risin P. Bouldin, M. L. West, L. Morgan West, F. M. West, W. J. Wigton, M. Boyle, L. W. Leringer and J. W. Woodcock.

Senator WALSH of Montana. The usual eight.
Mr. FINNEY. Eight locators, yes, sir. [Reading :)

That, thereafter on April 18, 1918, the said locators filed for record their location certificates; that they, the said locators transferred, mediately or immediately, to him (applicant) all their right, title and interest in and to said five placer mining claims for valuable consideration; that at all times since said locations the locators and himself (applicant have held, used, occupied and possessed all of said claims and performed the annual assessment work thereon each year as required by law; that the only known use or value of said lands is for their deposits of oil shale and that they are chiefly valuable therefor. Wherefore, he, applicant, asked that a hearing as to the mineral or agricultural character of said lands be had.

Notice was accordingly issued and answer filed. Hearing was set for September 5, and continued to September 11, 1923, before you at Glenwood Springs, at which time and place the parties, pursuant to notice, appeared, each in person with counsel and submitted testimony.

A transcript of the testimony was later filed, and on January 9, 1924, you rendered a joint decision, in which you find, notwithstanding your statement that “there is no question but the land in controversy is oil shale in character," and that “valuable shale beds lie at some considerable depth below the Summers homestead; that no actual discovery of oil shale had been made on the land ; that these claims had been allowed to lapse and were so lapsed at the date of the passage of the leasing act of February 25, 1920; and that sufficient assessment work has at no time been done to hold these claims valid, holding that the contest against the entryman has failed."

From this action the contestant has appealed to this office, the record together with the appeal having been transmitted under date of January 17, 1914.

The evidence in this case is voluminous consisting of the testimony of 38 witnesses, 18 for the contestant and 20 for the contestee, besides some 50 or more exhibits in the form of certified copies of location certificates, abstract of title, plats, photographs, etc.

The contestant in his own behalf testified that he knew the land in question was located as and for placer mining claims, and in substantiation of that

fact offered in evidence five copies of certificates of location certified to by the county recorder of the county in which the lands are situated. These certified copies, marked “ Contestant's Exhibits 1, 2, 3, 4, and 5," show that mineral placer claims Nos. J. D. 1, 2, 3, 5, and F. D. 7, were located by Risin P. Bouldin and seven others, named in the contest affidavit, April 1, 1918, and that the certificates of location were duly recorded April 18, 1918; that of the J. D. Claims No. 1 embraces the NE. 14 sec. 2; No. 2 the NW. 14 sec. 2; No. 3 the NE. 14 sec. 3; No. 5 the NW. 14 sec. 3; and F. D. 7 the SE. 14 sec. 2; all in T. 5 S., R. 97 W., sixth principal meridian. The contestant further testified that he is the owner of these claims, and in support of this claim of ownership offered in evidence an abstract of title by the Garfield County Abstract Co, brought down year by year from the inception of said claims to September 8, 1923. This abstract, marked “Contestant's Exhibit 6,” shows, not only ownership in contestant, but that affidavits have been filed of the performance of at least $100 worth of labor and improvements on or for the benefit of each of said claims since their location. It also appears that on September 20, 1920, the contestee, Summers, was served with formal notice by the owners of said mineral claims, that his homestead entries were in conflict therewith and that he should desist from improving the land since the mining claimants intended to hold their claims and to go patent thereon. (See contestant's Exhibits 33a and 33b.)

That was three years before final proof of the homestead man was offered. [Reading :)

The land in question was, the records here show, classified as mineral and valuable as a source of petroleum and nitrogen June 29, 1916, and the waiving of all mineral rights under the act of July 17, 1914, by the contestee would seem to be an admission by him also that the land is mineral in character. However, he denied that the locators or any one of them, either made a mineral discovery on any one or more of the claims, or placed any location notices on any of them, or staked the claims, or made or filed for record any lawful location certificates thereon or did the proper or requisite annual assessment work after claim of location.

In his original homestead entry No. 018825, contestee swore that there was not to his knowledge any “valuable mineral deposits” and that no portion of the land was " Claimed for mining purposes," and in his stock-raising additional entry, No. 018827, he swore that the land embraced therein " was chiefly valuable for grazing and raising forage crops." But while he says in his testimony (p. 273) that he saw no stakes in position on the land, yet he admits (p. 330) that he never examined the records in the recorder's office of Garfield County, where he would have found location certificates specifically claiming the land as and for placer grounds. He seeks to show in his testimony (pp. 326, 488 of the record) that 80 to 100 acres of the land will raise crops of grain and potatoes and that the land is more valuable for grazing and forage crops than for the sources of petroleum and notrogen contained therein.

Of the lands entered one of the final proof witnesses shows that one-fourth acre was cultivated by contestee in 1920, 1 acre in 1921, and 20 acres in 1922, while contestee himself said (p. 275 of the record) that in 1921 he had in as an experiment about 3 or 4 acres of alfalfa, in 1922, about 15 acres in oats, barley, and timothy, besides an acre of two in garden and no acreage in 1923 except a small garden because, as he said, the existence of this contest. He received notice of the contest May 25, 1923, yet after he had received due notice (Exhibits 33a and 33b) he was willing to spend in improvements on the place in the neighborhood of $1,500 (pp. 276 to 303). Contestee further testified (pp. 328, 330), that he had his son file on 320 acres of land adjoining the land in question to the east, and his son-in-law to file on 560 acres of other land in that vicinity, all of them well knowing at the time they filed that the land had been located by others as oil-shale land and was being held as such.

At page 329 of the record contestee gives his version of why these lands are located for their oil-shale content, in substance as follows: That it is all “bunk" about the lands being oil shale and that the locators are trying to grab off something in a bunco manner for the "sheepmen.” This as page 525 of the record contestant denies.

As to the crops raised, contestée stated (p. 276), that he raised a good 30-ton of hay on the land in 1922," while from his wife's testimony (p. 465),

it appears that all the hay so raised was put upon the top er flat roof of the barn 19 by 45 feet with the hay 12 feet high, and that hay had been hauled from elsewhere (p. 466), and stacked there.

C. E. Pratt, a witness for contestee, stated (p. 479) that he has located possibly 25 homesteaders between Grand Valley and Picence Creek and that in doing so he disregarded "oil shale placer claims" entirely.

It is urged against contestant that there was no discovery of oil shale made upon the lands in question, no location notices posted and no staking of claims, but it appears to have been known and by the classification made it was recognized, that oil-shale strata was contained in and through all these lands. To this effect is the testimony of witness Coryell, for contestee (p. 263). Witness Hubbard, for contestant, who assisted in locating the claims testified (p. 14) that a discovery was made of oil shale on each of the claims, which he recognized as such and which would burn; that printed notices giving the name of the claims, names of locators, description of the land claimed and date of location were posted on each claim (pp. 14, 15); and that the claims were staked.. As to the staking this witness was corroborated by witness Dow (pp. 29, 30) and by witness Chris Dere (p. 186), and was done in May, 1918. On the other hand, witness Magor and a number of his employees for contestee, testified that while hunting horses and cattle on the land they never saw any stakes; that they may have overlooked them or that the stakes may have been knocked down shortly after having been set (pp. 429, 487, 489).

As to the annual assessment work, affidavits were made and filed for the period beginning January 1, 1920, and ending June 30, 1921, entries 57 and 58 in the abstract of title exhibit 6. Contestant shows (p. 59) that he made an examination of the ground and found that the assessment work had been done for that period. This fact is disputed by a number of witnesses for contestee, who testified that while hunting for livestock thereabouts that they say no assessment holes on the claims in question for that year. It appears, however, that the work was not done directly on the claims but on adjoining claims likewise held and owned for their benefit, as a group. This method of doing work was also made desirable it seems because of the hostile attitude of the contestee (pp. 41, 42, and 71). The annual work for the two years ending June 30, 1922, and June 30, 1923, is covered by affidavits of record appearing at entries 77, 8O, and 84 of the abstract of title, and also by the testimony of contestee (p. 59), showing dimensions and value to be $100 on each claim for each of the 2-year periods.

As to the relative values of the land for its mineral content and its stock-raising use witness Coryell, for contestee, himself shows that the land is underlaid with the rich oil shales that are to be found in that field (p. 263). Witness H. Comer Wolf, for contestant, in his testimony (p. 134 and following) shows that rich beds of oil shale underlying the claims and in some cases outcroppings thereon have been tested by him as a chemist and valuable oil contents obtained.

Witness Hilton, for contestant, testified to the same facts from a geological standpoint (p. 82 of the record) and in this connection introduced a vertical geologic section made by him, as “ Exhibit 10," from which the total thickness of these shale deposits below contestee's house aggregate about 500 feet, while smaller shale beds are shown above the house. He further shows that the 61.8 feet of commercial oil shale as shown on Exhibit 10 produces 28 gallons of oil per ton (p. 88 and following). He shows that beds of shale may be profitably worked at a depth of 600 to 1,200 feet (p. 92). The testimony of witness Jensen (p. 167 and following) shows the cost of production of oil from shale (p. 170) and profit to be derived.

The land lies at an altitude of between 7,000 and 8,000 feet, and with the exception of 2 cows, 3 horses, and 5 burros (p. 466) contestee has had no stock of his own upon it, and from the testimony of Forest Supervisor Blair (p. 205), it appears that it would take 10 acres of land of that character to pasture 1 cow, or on 640 acres, 64 head, for the grazing period of about 5 months; that the charge for that number of cattle on the public range in that vicinity is 55 cents a head, or $35.20, the value of that acreage for grazing purposes, or $70.40 for twice that number. On the other hand, according to the testimony of County Assessor McQuirk (p. 231) the taxes on 640 acres in that vicinity would be $90.20 per annum, a loss that would have to be taken care of along with

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