is indispensable to the validity of a mining location and necessarily must precede or be coincident with the perfection thereof. The ultimate right to a patent must always rest upon the basis of a lawful location; and if the element of discovery be drawn in question so as to involve the right of possession as between rival claimants, the land department can not ignore an alleged absence of discovery by the applicant for patent in time to have enabled a court of competent jurisdiction, pursuant to an adverse claim and suit, to determine the respective rights of the parties.

The Canestota location was not perfected by discovery, if at all, until after the period of publication had expired and hence the claimant thereof could not successfully maintain his then pending adverse suit against the applicants, as the Supreme Court of Colorado has plainly pointed out in the decision last rendered. But the protestant has averred lack of discovery in the Last Batch location. Under the circumstances disclosed, the Department is of opinion that he should be heard on the allegations of the protest, for if it be true that there was no discovery prior to the date alleged, April 10, 1896, the applicants should be dismissed from the land department and remitted to the prosecution of patent proceedings anew, in order that due opportunity may be given for the litigation of any controverted questions properly cognizable before the local courts in adverse proceedings.

While the question of discovery is not one ordinarily presented before the land department, yet, under certain circumstances, such a question may be, and has been, fully investigated and determined therein.

In Waterloo Mining Company v. Doe (17 L. D., 111, 114), the protestant company charged that there had been no discovery within the limits of the claim, and that no vein or lode existed therein except that a vein, on the apex of which it had a location, dipped beneath the surface of the ground. The Department in passing upon his allegation stated:

When, as in the case at bar, patent is sought for a lode claim such valuable deposits are defined as "veins or lodes of quartz or other rock in place bearing gold, silver," . . . etc., and the "discovery" thereof within the limits of the claim is made a prerequisite to its location. Section 2320, R. S.

When, therefore, the protestant made its said charge of nondiscovery it of course charged a failure to comply with the terms of this chapter." This charge having been specifically made and properly substantiated the protestant was entitled to an opportunity to prove it. Such opportunity has, however, been denied. You found said charge unimportant because the ground was shown by the deputy mineral surveyor's report to be properly subject to mineral entry. This was manifest error, for without discussing the merits of such conclusion, such report was at best simply a contradiction of protestant's charge. The issue so made up was one of fact that could not be properly determined upon the record before you, and it was also one which called for an order of hearing.

In the case of Hughes v. Ochsner, on review (27 L. D., 396), a group of mining claims were involved, situated in the immediate. vicinity of the Last Batch claim; in fact, two of the locations there mentioned, the Salina and St. Jacobs, are largely in conflict with the location here involved. In that case the protestants charged that there had been no discovery by the applicants, or anyone for them, of any lode or vein in place bearing gold, silver, or any mineral whatever, and that a great portion of the premises described in the claimant's application was claimed adversely, and owned by the protestants. The Department there said:

The allegation that there has been no discoveries of any lodes or veins in place bearing gold, silver, or other mineral upon any of said locations, and the further allegation that five hundred dollars worth of labor has not been performed or improvements made for the development thereof are legitimate subjects of inquiry by the Government, in the present status of this case, because the existence of a valuable mineral bearing lode or vein and the expenditure of five hundred dollars in labor or improvements are both conditions to the patenting of land as a lode claim under the mining laws.

The prima facie showing made by the claimants in this behalf was sufficient to authorize the allowance of an entry, but the showing made by the protestants is such as to cause grave doubts whether the law has been complied with, either in the matter of discovery or the expenditure of five hundred dollars in labor and improvements. There has been no hearing in this case, no opportunity to cross-examine witnesses, and the Department is unable to intelligently decide these questions on the record before it.

It is therefore directed that a hearing be ordered herein, at which the inquiry will be confined to these two questions.

In the case of Bunker Hill Company v. Shoshone Mining Company (33 L. D., 142), protestants charged that neither the applicant company nor its grantors had ever made a legal discovery of any vein or lode of mineral having its top or apex inside the surface of its claims and that the discovery claimed was based upon the dip of a vein, the apex of which was owned by the protestants. The Department said:

It is the duty of the land department, except as to controversies committed to the courts by the statute, to determine before issuance of patent whether the applicant is entitled thereto. To entitle a person to a patent for mineral land, he must show, among other things, a valid location of the land under the mining laws. There is no authority for the issuance of a patent to a mineral claimant who has not a valid location. An invalid location can not be recognized as a basis for patent. If, prior to patent, the applicant's location is challenged as invalid, as is the case here, the matter must be investigated and the validity of the location determined or patent can not issue.

The Supreme Court in Creede Mining Company . Uinta Company (196 U. S., 337, 345), concerning the Federal mining statute stated:

The whole scope of the chapter is the acquisition of title from the United States to mines and mineral lands, the discovery of mineral being, as stated, the initial fact. Without that no rights can be acquired.

The court then proceeds to quote with evident approval from Lindley on Mines, second edition, section 335, as follows:

Discovery in all ages and all countries has been regarded as conferring rights or claims to reward. Gamboa, who represented the general thought of his age on this subject, was of the opinion that the discoverer of mines was even more worthy of reward than the inventor of a useful art. Hence, in the mining laws of all civilized countries the greatest consideration for granting mines to individuals is discovery. "Rewards so bestowed," says Gamboa, "besides being a proper return for the labor and anxiety of the discoverers, have the further effect of stimulating others to search for veins and mines, on which the general prosperity of the state depends.

It is the opinion of the Department that the allegations of the protest are sufficiently definite to raise the question of nondiscovery and that entry and patent should not be allowed for the Last Batch location unless a seasonable and valid discovery be shown therein. This holding must not be construed as authorizing or inviting an adverse claimant to bring any question before the land department which he should litigate in an adverse suit. The hearing ordered below is for the purpose of enabling the Department to ascertain the state of facts. existent at the time the pending application was filed, in order that the same may be properly acted upon and disposed of in accordance with law.

For the reasons above given the decision of your office is reversed and the case is remanded, with directions that a hearing be ordered for the purpose of ascertaining whether or not there was any lawful lode discovery made within the limits of the claimed ground of the Last Batch location at or prior to the date of the filing of the application for patent, namely, December 18, 1895; and if such discovery be not shown the application must be rejected.

NOTICE OF PREFERENCE RIGHT-LAND SUBJECT TO HOMESTEAD ENTRY-RELINQUISHMENT FOR CONSIDERATION-SECOND HOME

STEAD.

FINLEY . Ness.

Where a successful contestant is notified of his preference right of entry by registered mail, and the notice is received by him, the preference-right period begins to run from that date, excluding the day notice was received. The fact that land is covered with valuable timber does not exclude it from entry under the homestead law, where of such character that it would be suitable for agricultural use if the timber were removed; but land of a character not adaptable to any agricultural use is not subject to homestead entry.

A homestead entryman who executes a relinquishment and places it in the hands of another, who disposes of it for a valuable consideration, is disqualified to make second entry under either the act of April 28, 1904, or the act of February 8, 1908, regardless of whether he actually received any part of the consideration for which it was sold.

First Assistant Secretary Pierce to the Commissioner of the General (F. W. C.) Land Office, January 18, 1910.

(J. H. T.) Ina Finley has appealed from your office decision of July 12, 1909, reversing the action of the local office of January 19, 1909, and allowing the application of Sjur P. Ness to make homestead entry for the E. NW. 4. SW. 4 NW. 4, NW. SW. 4, Sec. 24, T. 15 S., R. 7 W., W. M., Roseburg, Oregon, land district.

March 17, 1902, Dorr Stephens made homestead entry for said land, which was canceled by your office letter of December 18, 1907, upon the contest of Ness, the present applicant, and on January 6, 1908, Ness was notified by registered letter of his preference right of entry.

January 2, 1908, Ina Finley filed her timber and stone application for said land, which was suspended pending the exercise of the preference right credited to Ness.

January 6, 1908, Ingeborg Ness, mother of the present homestead applicant, filed her timber and stone application for the land, which was also suspended because of the preference right of Ness, and also the application of Finley. August 8, 1908, Ingeborg Ness withdrew her said application.

January 23, 1908, Sjur P. Ness filed his application under section 1 of the act of April 28, 1904 (33 Stat., 527), for a second homestead entry for said land, supported by his affidavit setting forth the reasons why he had been unable to comply with the law in the matter of his first homestead entry, and why he abandoned the same. His first homestead entry was made June 17, 1898, at Minot, North Dakota, and canceled on relinquishment April 28, 1900. March 3, 1908, Ina Finley filed her sworn corroborated protest against said application of Sjur P. Ness for second homestead entry, alleging, among other things:

First. That the said land is not agricultural land; that it is unfit for cultivation and is valuable chiefly for the timber thereon, having about eight million feet of merchantable timber thereon.

Second. That the said S. P. Ness has already exercised his right of entry under the homestead laws and derived a benefit therefrom.

Third. That said homestead application was not filed in good faith for the purpose of securing a home for the said S. P. Ness, but was filed for the purpose of defeating the said rights of this protestant.

Upon this protest a hearing was ordered by your office, and upon the testimony submitted the local officers recommended that the application of Ness be rejected.

Section 1 of the said act of April 28, 1904, reads as follows:

That any person who has heretofore made entry under the homestead laws, but who shall show to the satisfaction of the Commissioner of the General Land Office that he was unable to perfect the entry on account of some unavoidable complication of his personal or business affairs, or on account of an honest mistake as to the character of the land: that he made a bona fide effort to

comply with the homestead law and that he did not relinquish his entry or abandon his claim for a consideration, shall be entitled to the benefit of the homestead laws as though such former entry had not been made.

The act of February 8, 1908 (35 Stat., 6), provides as follows:

That any person who, prior to the passage of this act, has made entry under the homestead laws, but from any cause has lost, forfeited, or abandoned the same, shall be entitled to the benefits of the homestead law as though such former entry had not been made, and any person applying for a second homestead under this act shall furnish the description and date of his former entry: Provided, That the provisions of this act shall not apply to any person whose former entry was canceled for fraud, or who relinquished the former entry for a valuable consideration.

Considerable evidence was submitted upon the question of compliance with law by Ness in connection with his former entry, and also upon the question whether he received a valuable consideration for relinquishing the same. T. C. Barker, who resides near Bowbells, North Dakota, testified that he lived in the vicinity of the land embraced in the first entry of Ness; that he heard that the entry of Ness was contested, and that as he knew where he was, he wrote to Ness about it and that Ness stated that he could not come at that time and finally sent his relinquishment to Barker with instructions to fight the contest as long as possible and take what he could get, as it was impossible for Ness to come back to fight the contest; that the relinquishment was placed in his hands for sale, and that he sold the same. for $10.00 to A. W. Movius, $5.00 in trade at the store and $5.00 in cash; also that he had sold the relinquishment of a sister of Ness for $5.00; that he sent $5.00 to Ness.

It further appears by the record that Movius sold the relinquishment of Ness to one Stahl for $250 and the entry was canceled, whereupon Stahl made homestead entry. It appears that said Movius was the attorney representing the contestant, and that the contest was dismissed at the time relinquishment was filed. Ness denies that he ever gave any instructions to fight the contest case or had any intention of fighting the same, or that he authorized Barker to sell the relinquishment. He says that he thought to favor Barker by sending the relinquishment to him in order to enable him to get a suitable person to enter the land as a neighbor. He denies receiving any money from Barker for his relinquishment, but says the $5.00 received was for his sister's relinquishment of her entry for land in the same vicinity. Upon this question the local officers in part say:

It is true that he says he instructed Barker to file the relinquishment at the land office, but his testimony shows that he did not expect him to file it there immediately, but what he did in effect was to place the relinquishment in Barker's hands for such use as he might see fit to make of it. It appears that Barker saw fit to dispose of it to Movius for $10.00, and thus enabled Movius to exact the sum of $250.00 from Stahl, who was seeking a home upon the public