Entries, by whom made. If the town is incorporated the entry must be made by the corporate authorities or by the mayor or other principal officer authorized so to do by resolution or ordinance of the town board or city council. If the town is not incorporated, the entry must be made by the judge of the county court upon petition addressed to him therefor, signed by such number of actual occupants of lots therein as may be required by the laws of the State or Territory in which the town is situated. Private individuals, organizations, or corporations are not authorized to make such entries.

A double trust.-The entry must be made in trust (1), as to the occupied lots, for the several use and benefit of the occupants thereof according to their respective interests, and (2) as to the unoccupied lots, for the use and benefit of the municipality, the public, or the occupants collectively as a community. Such entries can not be made for the benefit of one individual, or organization, or corporation, but only for the benefit of the actual inhabitants and occupants of an established town. Prospective townsites can not be so entered.

The execution of the trust as to the disposal of the lots and the proceeds of sales is to be conducted under regulations prescribed by the state or territorial laws. Acts of trustees not in accordance with such regulations are void.

The amount of land that may be entered under this act is proportionate to the number of inhabitants. One hundred and less than two hundred inhabitants may enter not to exceed 320 acres; two hundred and less than one thousand inhabitants may enter not to exceed 640 acres; and where the inhabitants number one thousand and over an amount not to exceed 1,280 acres may be entered; and for each additional one thousand inhabitants, not to exceed five thousand in all, a further amount of 320 acres may be allowed. When the number of inhabitants of a town is less than one hundred the townsite shall be restricted to the land actually occupied for town purposes, by legal subdivisions.

Unsurveyed public land upon which a town has been established may be entered hereunder. In such case a special survey should be procured by application to the surveyor-general therefor, the cost of which survey will be paid out of the general appropriations for public surveys. When the plat of such survey is filed in the local office, application may be made to enter the land described therein.

Declaratory statements may be filed as the initiatory step for the entry of the land in all cases where the occupants are not ready to apply for entry, and should be so filed in order to protect their rights. The statement should be signed and filed by the oflicer entitled to make entry under the law, and should show the number of inhabitants, that the land is occupied for trade, business, and other townsite purposes, and the date when first so occupied, and declare the purpose of the occupants to enter it under the townsite laws. It should include only such lands as the town is entitled to enter by government subdivisions where surveyed, and if not surveyed the land should be described so it may be easily identified.

Proof. The notice of intention to make proof must be filed and the notice for publication must be issued, published, and posted at the applicant's expense as in ordinary cases, and in manner and form and for the time provided in the act of March 3, 1879 (20 Stat., 472). The proof may be made before the register and receiver or any

officer duly authorized by law, and must show, by record or documentary evidence, where such evidence is usually required, and where not so required, by the testimony of at least two of the advertised witnesses, (1) due publication of the register's notice; (2) if an incorporated town, proof of incorporation, which should be a certified copy of the order of incorporation, or if by legislative enactment, a citation to such act; (3) certified record evidence of the election, qualification, and the authority of the officer making entry; (4) the number of townsite occupants and claimants on each occupied government subdivision; (5) the number of inhabitants in the townsite; (6) the character, extent, and value of townsite improvements located on each government subdivision; and (7) the date when the land was first used for townsite purposes.

Restrictions. First. Area.-Entry can not be made hereunder of a greater quantity of land than 2,560 acres, unless the excess in area is actually settled upon, inhabited, improved, and used for business and municipal purposes.

Second. Unpatented mineral claims. Under said sections 2386, 2392, and section 16 of the act of March 3, 1891 (26 Stat., 1101), the title to lands acquired hereunder will be subject to all valid prior rights to unpatented mining claims or possessions held under existing law, and paramount patents may be issued thereafter to such mineral claimants, notwithstanding the prior townsite patent.

Third. Patented mineral claims.-All lands covered by patented mineral claims must be omitted from townsite entries hereunder. Government subdivisions of land, made fractional by the omission of such patented claims, will be designated by lot numbers on a segregation diagram prepared by the surveyor-general.

Fourth. Reservations for the use of the United States Government are not subject to entry hereunder.

Fifth. Millsites. The continued use and occupation within a townsite of a duly located millsite claim under section 2337, U. S. Rev. Stats., from a time prior to a settlement and occupation thereof for townsite purposes, will defeat the rights of the claimant under the townsite laws to any part of the land within such millsite.

Sixth. Railroad rights of way and station grounds, when approved by the Department, are subject to all valid rights existing at the date of filing the application for such rights of way or station grounds.

Change of method of entry.-Where proceedings have been had for the entry of lots under sections 2382 to 2386, inclusive, U. S. Rev. Stats., but no patent has issued thereunder, the occupants may avail themselves, if the town authorities choose to do so, of the provisions of said sections 2387 to 2389 and make proof and entry thereunder: Provided, however, that in addition to the minimum. price for the land applied for there shall be paid, before patent issues therefor, by the parties applying for such change of entry, all costs of surveying and platting such townsite and expenses incident thereto incurred by the Government under the provisions of said sections 2382 to 2386. On application to this office the applicants will be informed of the amount of said expense to be paid in excess of the purchase price of the land in order to effectuate such change of entry.

Additional entries.-Where townsite entry has been or may hereafter be made, under the provisions of said sections 2387 to 2393,

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additional entries may be made, under the provisions of section 4 of the act approved March 3, 1877 (19 Stat., 392), of such contiguous tracts as may be occupied for townsite purposes, but such additional entry shall not, together with all prior entries made for such townsite, be in excess of the area to which the town may be entitled at date of the additional entry by virtue of its population as prescribed in said section 2389: Provided, however, that such area shall not exceed 2,560 acres. Such additional entries will be made in the same manner and under the same regulations as are herein provided for entries under said sections 2387 to 2393, inclusive.

Entry and payment.-When townsite proof has been submitted hereunder the register and receiver will, if they approve the same, forward it to this office with their recommendation thereon, without collecting the purchase money and without issuing the final papers. If the proof submitted to this office is found satisfactory the local officers will be notified thereof, and if no objections exist in their office they will notify the applicant thereof, and on payment of the minimum price fixed by the law for the purchase of the land they will issue the final papers. (See Circular of January 6, 1904, 32 L. D., 481.)

TOWNSITES ON MINERAL LANDS.

In view of the numerous inquiries touching the rights of claimants for mineral lands situated within townsites, as opposed to rights which may be acquired to such lands under the townsite laws, it is deemed appropriate to herein recite the principal rules applicable to the subject, so far as they seem clear from the law itself or are indicated by the trend of adjudicated cases.

The general townsite laws, comprised in secs. 2380 to 2394, U. S. Rev. Stats., authorize the entry of townsites, or the sale of lots therein, upon public lands which may include unpatented mineral claims, but the rights of mineral claimants upon any land entered or sold under said townsite laws are expressly protected by secs. 2386 and 2392. These two sections recognize the superior rights, as against any townsite claimant-whether corporate, community, or individual of all claimants for mineral veins possessed agreeably to local custom, or for any valid mining claim or possession held under existing law. The precedence and superiority so accorded to mineral claims, however, depend in final analysis upon the question of fact whether, at date of townsite entry or lot sale, the lands claimed. under the mining laws were "known to contain minerals of such extent and value as to justify expenditures for the purpose of extracting them" (31 L. D., 87). Where an affirmative showing in such behalf is made in due course by the mineral claimant, his right to a patent for the land (subject to the distinction hereinafter noted as to incorporated towns) will not be prejudiced by any previous townsite entry, deed, or patent covering the same land (26 L. D., 144; 29 L. D., 426; 32 L. D., 211; 34 L. D., 276 and 596).

Under said general townsite laws, as construed by the Department and the courts, an entry including unpatented mineral lands may be made for an incorporated town as well as for an unincorporated town, the law requiring that in the former case the entry shall be

made by the corporate authorities, and in the latter by the county judge (34 L. D., 24). While such general right of entry by or for incorporated towns and cities is therefore independent of anything contained in sec. 16 of the act of March 3, 1891 (26 Stats., 1095), it will be seen that that section in terms, announces the right to enter mineral lands. The protection afforded to mineral claims by the body of sec. 16 is similar to that given generally in said secs. 2386 and 2392, Rev. Stats., but the proviso to sec. 16 is as follows:

Provided, That no entry shall be made by such mineral-vein claimant for surface ground where the owner or occupier of the surface ground shall have had possession of the same before the inception of the title of the mineral-vein applicant.

This Department has never viewed said proviso as warranting, under any circumstances, the allowance of entry for a mineral vein independently of "the surface ground appertaining thereto," nor is such an entry provided for in the general mining laws. But said proviso creates one distinction between unincorporated and incorporated towns as regards the relative rights of townsite occupants and mineral claimants, which is, that whereas the townsite patent will, in either case, carry absolute title to any mineral not known to exist at the date of townsite entry, the adverse rights of mineral and town-lot claimants within incorporated towns are hinged upon priority of initiation. That is to say, that after entry is made for such town, no entry by a mineral-vein applicant will be allowed for any land owned and occupied under the townsite law by a party whose possession antedated the inception of the mineral applicant's claim, even though such land was known, at date of the townsite entry, to contain valuable minerals.

Subject to the distinction above noted, the foregoing principles apply to all mineral claims within townsites entered or disposed of under any of the laws above mentioned, and also to mineral claims. within townsites disposable under special acts containing no reference to the rights of mining claimants.

The law does not require that townsite entries shall exclude any mineral claim or possession except such as may have been patented (29 L. D., 21). Mineral claims which have not been patented may be excluded from a townsite entry at the option of the townsite applicant, who must, in that event, furnish satisfactory proof that the exclusion covers a "valid mining claim or possession held under existing law" (33 L. D., 542). The exclusion of a millsite claim from a townsite entry is necessary only in cases where the millsite claimant shall have been in occupation of the ground, under regular location, from a time antedating its occupation for townsite purposes. The issue of priority in such cases may be raised by the townsite applicant, the millsite claimant, or the Government.

TOWNSITES ON CEDED INDIAN RESERVATIONS.

IN OKLAHOMA.

How entered.-Under section 22 of the act approved May 2, 1890 (26 Stat., 91), townsite entries may be made in the same manner, under the same regulations, and for the same purchase price herein. provided for entries under sections 2380 and 2381, 2382 to 2386, or

2387 to 2394, U. S. Rev. Stats., except that the following additional proof is required:

Public reserves.-Triplicate plats of the survey of the townsite into lots and blocks must be made and filed with the local officers at the time of submitting proof, showing the reservation of not less than ten nor more than twenty acres for park, school, and other public purposes. Such plats shall be made on tracing linen and on a scale of 100 feet to 1 inch, and be provided with a margin sufficient to contain the verifications of the surveyor and the applicant acting for the town and the approval thereof by the proper officer of the Land Department. The name of the townsite must be stated on the plats, and they must contain a description of the land and the exterior boundaries thereof, according to the lines of the public surveys, and must exhibit the streets, squares, blocks, lots, and alleys, the courses and distances of the exterior lines of the squares, the width and courses of the streets and alleys, the size of the regular lots and blocks, and if a lot or block is irregular in shape the dimensions and courses of the lines of each should be indicated, so the area thereof may be readily computed, and the area of each reserve and the particular public purpose for which the reserve is made must be designated thereon. The exterior lines of all existing railroad rights of way and station grounds should also be delineated on the plat. Whenever an entry is made adjacent to a town already in existence, the streets must conform to the streets already established, and this must be stated in the affidavit of the surveyor upon the margin of each plat, which affidavit must also contain a statement showing the correctness of the survey and plats of the land, describing it, and giving the aggregate area of the tracts reserved for public purposes. The aflidavit of the applicant upon the margin of each plat shall contain the statement that the application for the described tract of land as the townsite of is made under the provisions of section 22 of the act of May 2, 1890 (26 Stat., 91); that all streets, alleys, parks, and reservations are dedicated to public use and benefit; and that the plat is correct according to the survey made by the proper surveyor. Upon the receipt of such proof and plat by this office, if found to be satisfactory, the plats will be approved by the commissioner, and two of them will be returned to the local officers, one to be retained in their files and one to be given to the applicant for filing with the recorder of the proper county, and the local officers will be directed. to take such further action as may be prescribed by the law and regulations under which the application is made.

Homestead commutations for townsites.-Applications to commute homestead entries, or portions thereof, for townsite purposes under the provisions of the second proviso of section 22 of the act approved May 2, 1890 (26 Stat., 91), will be addressed to the Secretary of the Interior and be filed in the district land office. The application may be on Form 4-001, and may be made for the commutation of the whole or a part of the homestead entry, but must be by full legal subdivisions, and any application for less than a full legal subdivision or for land involved in any contest will not be recognized.

Proof-Notice of intention to make proof and the notice for publication shall be the same in all respects as that required of a claimant in making final homestead proof, with the addition that it shall state that said proof will be made under section 22 of the act