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The cost of said investigation shall be paid from the contingent fund of the Senate on vouchers of the committee or subcommittee, signed by the chairman and approved by the Committee to Audit and Control the Contingent Expenses of the Senate.

Senator Walsh of Montana. I dare say Mr. Finney is more familiar with these matters than the secretary, and I suggest that we begin with him. It will be borne in mind that the resolution was simply referred to this committee for a recommendation as to whether or not the Senate ought to adopt it, and I think we ought to try to get a general idea of what the charges are, and the foundation for them, as a basis for our further action.

Senator PITTMAN. I was going to suggest, Senator, that you have paid more attention to this than the other members of the committee, and I suggest that we proceed in any manner that you consider advisable.

Senator Walsh of Montana. Let me say to the committee that I have gone over the Kelley letters; the opinion of Mr. Richardson with reference to the charge therein made; the letters of Mr. Finney and of the Secretary in relation to them, and the proceedings before Secretary Work in connection with the reopening of the socalled Freeman-Summers case, made the subject of some considerable comment by Mr. Kelley in his letters.

For the information of the members of the committee, I feel that this preliminary statement ought to be made.

The charges center very largely about this so-called FreemanSummers case.

STATEMENT OF HON. EDWARD C. FINNEY, SOLICITOR, DEPART

MENT OF THE INTERIOR

Senator Walsh of Montana. Which of these, Mr. Finney, was the homestead claimant ?

Mr. FINNEY. Freeman-Summers was the homestead case. That is, Summers was the homestead entryman who brought a contest against Freeman, the mineral locator.

Senator WALSH of Montana. Exactly. Summers had made an application for a patent, Mr. Finney.

Mr. FINNEY. Summers had an entry under the stock raising homestead act for 640 acres of land.

Senator Walsh of Montana. I mean Freeman.

Mr. FINNEY. Freeman had locations made prior to the homestead entry and filed a contest against the homestead entry. I guess I stated it wrong before.

Senator Walsh of Montana. It seems that a hearing was had to determine the rights of these two conflicting claimants, the one claiming under the homestead act and the other claiming under the placer mining act, claiming a location made prior to the leasing act of 1920, and the requisite assessment work done as required by the act of 1920 in order to preserve that right.

The question was presented as to whether Freeman had ever made a discovery, and that precipitated the question as to what would constitute a discovery of oil shale under the old placer mining act.

It was determined, as I understand the matter, by the department, when it eventually came to them, that Freeman had not made a discovery, and accordingly his protest of the homestead filing of Summers was dismissed. Thereafter, a hearing was had before the Secretary, the matter being reopened, as I understand the matter, under the supervisory power of the Secretary, and thereafter the former holding of the Secretary against Freeman was reversed and it was held that he had made sufficient discovery, as I understand the matter, and his entry was approved.

I think we might very properly commence with the opinion, the original opinion, of the department in the Freeman-Summers case. Can you provide us with that, Mr. Finney?

Mr. FINNEY. I have with me copies of the principal documents in that case. Not all, of course, and I have arranged them in chronological order and, if desired by the committee, I could put them in in that way, Senator, beginning with the decision of the register and receiver of the local land office, which was the first decision rendered in the case.

Senator Walsh of Montana. That will be all right, but probably what they say about it would not particularly interest us. What was the ruling of the local office?

Mr. KINNEY. After a hearing on the protest of Freeman against the Summers, homestead entry, the register, considering the record, found that the land in question was oil shale in character but that Freeman had not made discoveries sufficient to sustain the protest.

Senator Walsh of Montana. Let me inquire who were the land officers making that ruling.

Mr. FINNEY, Walter Spencer, register, and Charles S. Merrill, receiver.

Senator WALSH of Montana. Where?
Mr. FINNEY. At Glenwood Springs, Colo.

Senator WALSH of Montana. Now, the area in question as I understand it, Mr. Finney, is in the neighborhood of Glenwood, in the western part of the State of Colorado.

Mr. FINNEY. It is north and west of Glenwood Springs, a very mountainous, rough part of Colorado.

Senator Walsh of Montana. Well, the opinion may go in the record, but I imagine we will not take time to read that. (The decision referred to by Senator Walsh reads as follows:)

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, January 6, 1931. I hereby certify that the annexed copy of decision, dated January 9, 1924, filed under Denver 032576, formerly Glenwood Springs 018825, is a true and literal exemplification of the original 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. (SEAL.]

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

UNITED STATES LAND OFFICE,

Glenwood Springs, Colo., January 9, 1924. J. D. Freeman, Contestant, v. George L. Summers, Contestee. Contest 1490, Serial Nos. 018825 and 018827, involving the S 12 NE 14 N 42 SE 14, S 12 NW 14, lots 3 and 4, sec. 2; lots 1, 2, 3 SE. 14 NE. 14 sec. 3, T. 5 S., R. 97 W. sixth principal meridian.

The cost of said investigation shall be paid from the contingent fund of the Senate on vouchers of the committee or subcommittee, signed by the chairman and approved by the Committee to Audit and Control the Contingent Expenses of the Senate.

Senator WALSH of Montana. I dare say Mr. Finney is more familiar with these matters than the secretary, and I suggest that we begin with him. It will be borne in mind that the resolution was simply referred to this committee for a recommendation as to whether or not the Senate ought to adopt it, and I think we ought to try to get a general idea of what the charges are, and the foundation for them, as a basis for our further action.

Senator PITTMAN. I was going to suggest, Senator, that you have paid more attention to this than the other members of the committee, and I suggest that we proceed in any manner that you consider advisable.

Senator Walsh of Montana. Let me say to the committee that I have gone over the Kelley letters; the opinion of Mr. Richardson with reference to the charge therein made; the letters of Mr. Finney and of the Secretary in relation to them, and the proceedings before Secretary Work in connection with the reopening of the socalled Freeman-Summers case, made the subject of some considerable comment by Mr. Kelley in his letters.

For the information of the members of the committee, I feel that this preliminary statement ought to be made.

The charges center very largely about this so-called FreemanSummers case.

STATEMENT OF HON. EDWARD C. FINNEY, SOLICITOR, DEPART

MENT OF THE INTERIOR

Senator WALSH of Montana. Which of these, Mr. Finney, was the homestead claimant?

Mr. FINNEY. Freeman-Summers was the homestead case. That is, Summers was the homestead entryman who brought a contest against Freeman, the mineral locator.

Senator Walsh of Montana. Exactly. Summers had made an application for a patent, Mr. Finney.

Mr. FINNEY. Summers had an entry under the stock raising homestead act for 640 acres of land.

Senator WALSII of Montana. I mean Freeman.

Mr. FINNEY. Freeman had locations made prior to the homestead entry and filed a contest against the homestead entry. I guess I stated it wrong before.

Senator Walsh of Montana. It seems that a hearing was had to determine the rights of these two conflicting claimants, the one claiming under the homestead act and the other claiming under the placer mining act, claiming a location made prior to the leasing act of 1920, and the requisite assessment work done as required by the act of 1920 in order to preserve that right.

The question was presented as to whether Freeman had ever made a discovery, and that precipitated the question as to what would constitute a discovery of oil shale under the old placer mining act.

It was determined, as I understand the matter, by the department, when it eventually came to them, that Freeman had not made a discovery, and accordingly his protest of the homestead filing of Summers was dismissed. Thereafter, a hearing was had before the Secretary, the matter being reopened, as I understand the matter, under the supervisory power of the Secretary, and thereafter the former holding of the Secretary against Freeman was reversed and it was held that he had made sufficient discovery, as I understand the matter, and his entry was approved.

I think we might very properly commence with the opinion, the original opinion, of the department in the Freeman-Summers case. Can you provide us with that, Mr. Finney?

Mr. FINNEY. I have with me copies of the principal documents in that case. Not all, of course, and I have arranged them in chronological order and, if desired by the committee, I could put them in in that way, Senator, beginning with the decision of the register and receiver of the local land office, which was the first decision rendered in the case.

Senator Walsh of Montana. That will be all right, but probably what they say about it would not particularly interest us. What was the ruling of the local office ?

Mr. KINNEY. After a hearing on the protest of Freeman against the Summers, homestead entry, the register, considering the record, found that the land in question was oil shale in character but that Freeman had not made discoveries sufficient to sustain the protest.

Senator Walsh of Montana. Let me inquire who were the land officers making that ruling.

Mr. FINNEY. Walter Spencer, register, and Charles S. Merrill, receiver.

Senator Walsh of Montana. Where?
Mr. FINNEY. At Glenwood Springs, Colo.

Senator WALSH of Montana. Now, the area in question as I understand it, Mr. Finney, is in the neighborhood of Glenwood, in the western part of the State of Colorado.

Mr. FINNEY. It is north and west of Glenwood Springs, a very mountainous, rough part of Colorado.

Senator Walsh of Montana. Well, the opinion may go in the record, but I imagine we will not take time to read that. (The decision referred to by Senator Walsh reads as follows:)

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, January 6, 1931. I hereby certify that the annexed copy of decision, dated January 9, 1924, filed under Denver 032576, formerly Glenwood Springs 018825, is a true and literal exemplification of the original 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. (SEAL.]

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

UNITED STATES LAND OFFICE,

Glenwood Springs, Colo., January 9, 1924. J. D. Freeman, Contestant, v. George L. Summers, Contestee. Contest 1490, Serial Nos. 018825 and 018827, involving the S 12 NE 14 N 12 SE 14, S 12 NW 14, lots 3 and 4, sec. 2; lots 1, 2, 3 SE. 14 NE. 44 sec. 3, T. 5 S., R. 97 W. sixth principal meridian.

DECISION

History of the case: On May 10, 1920, George L. Summers, contestee in this case, filed his homestead application 018825 under the enlarged homestead act for S. 12 NW. 14 sec. 1; S. 12 NE. 14, sec. 2, T. 5 S., R. 97 W., sixth principal meridian, designated May 1, 1909, under the act of February 19, 1909. This application was allowed May 17, 1920, subject to the provisions and reservations of the act of July 1,, 1914, the land having been classified as valuable for petroleum and nitrogen on May 23, 1916.

On May 10, 1920, the contestee filed his additional application 018827 under the stock-raising homestead act for lots 3 and 4, S. 142 NW. 14, sec. 2; lots 1, 2, 3, SE. 44 NE. 14, sec. 3, same township and range. This application was allowed January 18, 1921.

Proof on both entries was filed in this office on May 22, 1923, but prior to this, on May 21, 1923, a contest was filed against both entries by J. D. Freeman claiming a prior right under the mineral laws of the United States to the $. 12 NE. 14, N. 12 SE. 14, NW. 14 (lots 3, 4, S. 14 NW. 14) sec. 2; N. 12 NE. 14 (lots 1 and 2) SE. 14 NE. 14, NE. 14 NW. 14 (lot e) sec. 3, T. 5 S., R. 97 W., said land conflicting with the Summers's homestead entries and comprising in whole or in part the following oil shale mineral claims : J. D. Nos. 1, 2, 3, 5 and F. D. No. 7.

After due notice the case was brought to hearing before the register and receiver of this office or the 11th day of September, 1923.

Review : It is our intention to pass over all merely technical matters and conditions and confine this decision to such vital facts as are shown in the evidence.

It is evident to us that much of the testimony in the case is valueless. There is no question but that the land in controversy is oil shale in character; in so far as it is underlaid at some depth with great beds of that material. This land was classified by the Government as valuable for petroleum and nitrogen May 23, 1916, and the contestee, when applying for his homestead accepted such classification.

The evidence shows that the Summers homestead is, from its surface characteristics and its general location, an average homestead in comparison with the homesteads of to-day, on which one man might succeed but another might fail, as is true of any business. The evidence relating to how this success or failure might come about is not pertinent; whether it be eventually through the raising of cattle or other stock, or any other agricultural or combination of agricultural industries. If the homesteader finds that his cherished idea of how to make an income from his homestead fails, he is privileged change his mind and try some other plan. The land being in the rough requires that considerable work must be done on it before it reaches a point where a profit or possibly even a living may be expected. Farmers deal largely in futures, and especially is this true of a homesteader.

The same construction may be placed on the oil-shale industry which is not in fact an industry in this locality, but holds great possibilities of valuable production in the future. Hence the oil-shale owner is in the same condition as the homestead farmer, since neither can make a profit from the land until it is developed, but both have high hopes for the future.

Any decision as to an excess of value of one over the other at this time would be entirely problematical and might quickly be reversed by future conditions or future developments. At this time we do not consider that it is in our province to say that one industry shall succeed and the other fail. Nor is there sufficient evidence to show as between the mineral and the agricultural claimants that one is acting more in good faith than the other.

It remains, then, that the validity of the mineral claims as against the homestead claimant appears to be the chief consideraion in this issue. If the evidence shows that through failure to comply with the mineral laws of the United States and the State of Colorado these claims, or any one of them in conflict with the homestead entries, is invalid, then the homestead entry is relieved of such conflict. If through complete compliance with the law the mineral claims appear to be valid, then the homestead entryman must forfeit his claim to such land as may conflict with the prior valid mineral rights.

We shall consider the validity of the mineral claims under the three heads: Location, discovery, and assessments, since a failure in any one of these would make the claims invalid.

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