On November 23, 1893, Congress passed an act (28 Stat., 6), excusing assessment work on a mining claim for that year upon the filing for record in the office where the location certificate was on file a notice that the claimant in good faith intended to hold and work the claim. Such notice was sent by the company to Curtis in November, 1893, to be duly filed. He admits the receipt of this notice, but not that he agreed to file it. John Dixon, a director and former president of the company, swears positively that Curtis did agree to file the notice in a letter to him dated December 5, 1893. He did not file it, but on January 1, 1894, re-located the claim, under the name of the Black Rock Consolidated lode claim, and on May 2, 1894, made a conveyance of the same to said Kelly. Kelly made a location covering the Addenda ground and some additional ground, on June 18th following, which he called the Contention Mine, and subsequently made conveyances of one third interests, each, thereunder, to Cain and McCone.

I am convinced from the evidence that Kelly knew of the relations between Curtis and the Addenda Company, and that Curtis had taken advantage of these in an attempt to surreptitiously gain possession of the company's claim; and am also convinced that the company attempted in good faith to comply with the act last above mentioned, and supposed, until long afterward, that it had duly complied. There was no intention on the part of the company to abandon the claim. It must be conceded, however, that the company did not in fact comply with the said act. But the law, generally speaking, does not look with favor upon a forfeiture of property, and the Department is not, therefore, disposed to extend any aid toward these protestants in their insistence upon a forfeiture, under all the circumstances, but, on the contrary, to construe the law in the case strictly against them.

They are not here as adverse claimants in any sense under the mining laws, but merely as amici curia--friends of the court. They have a right to protest under section 2325 of the mining laws (Revised Statutes), but no right to contest. They may not assert any claim as against the applicant for patent, but only challenge the applicant's claims under the law (Wight v. Dubois et al., 21 Fed. Rep., 693). The judgment on the suit to quiet title which protestants set up and which appears to have become final on failure of the company to appeal therefrom within a year from the entry thereof (Sec. 939 Cala. Code of Civil Procedure-Deering), is not a judgment on an adverse claim, and not, therefore, effective against the company in their proceedings for patent.

Although Curtis testifies that the assessment work done on the Addenda under his supervision from 1886 to 1892, inclusive, was done perfunctorily, contributed little if at all to the development of the claim, and that only $95 of the $100 sent him was applied toward actual labor thereon, the other five dollars going to pay for recording the affidavit of labor, the company is shown to have been in unquestioned possession during all that time, and I think it may be safely held that the work was a sufficient compliance with the mining laws

in the absence of any attempted re-location during that time, or any adverse claim. Under a state of facts analogous to the present case the Department held, in Stewart et al. v. Rees et al. (21 L. D., 446), under authority of section 2332 of the Revised Statutes, and the cases cited, that

If the claimant has been in possession and worked the Jaw Bone [mining claim] for the period prescribed by the statute of limitations for mining claims in Montana, prior to the re-location by the protestants, he is entitled to have the same passed to patent, at least as against these protestants (Glacier r. Willis, 127 U. S., 471; 420 Mining Co. v. Bullion Co., 1 Mont. M. R., 114).

The Jaw Bone mining claim was located in Montana, but section 2332 of the Revised Statutes is applicable to mining claims in any "State or Territory." It reads

Where such person or association, they and their grantors, have held and worked their claims for a period equal to the time prescribed by the statute of limitations for mining claims of the State or Territory where the same may be situated, evidence of such possession and working of the claims for such period shall be sufficient to establish a right to a patent thereto under this chapter, in the absence of any adverse claim; but nothing in this chapter shall be deemed to impair any lien which may have attached in any way whatever to any mining claim or property thereto attached prior to the issuance of a patent.

The "time prescribed by the statute of limitations for mining claims" in California is five years. A mining claim in California is real estate (John Melton et al. v. Orville D. Lambard, 51 Cal., 258), and the period of limitation as to actions for the recovery of real estate is five years from seizin or possession of "the plaintiff, his ancestor, predecessor or grantor." (Sec. 318 Cal. Code of Civil Procedure-Deering; and Morris v. De Celis, 51 Cal., 55.) The Addenda company having held and worked its claim continuously for more than five years immediately prior to the alleged re-location, it is, under section 2332 of the Revised Statutes, and Stewart et al. v. Rees et al. (supra), entitled to have the same passed to patent, as against these protestants.

Your office decision of January 9, 1896, herein, is accordingly reversed, and said protest dismissed, and you will pass the Addenda claim to patent, subject, however, to any objections appearing in the record and not herein considered.

RAILROAD GRANT-LANDS EXCEPTED-PREEMPTION FILING.

NORTHERN PACIFIC R. R. Co. v. ROGERS.

Land embraced within a pre-emption filing of record at the time when a railroad grant becomes effective is excepted from the operation of the grant, and the company in such case is not entitled to question the legality of the filing or the qualifications of the pre-emptor.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.)

uary 8, 1897.

(P. J. C.)

The land involved in this appeal is the SE. of the NE. and lots 1 and 2, Sec. 5, Tp. 1 N., R. 4 W., Helena, Montana, land district, and

is within the primary limits of the grant to the Northern Pacific Railroad Company, as shown by its map of definite location filed July 6, 1882. It is also within the limits of the withdrawal on general route, which became effective February 21, 1872, and was listed by the company (list No. 12), July 28, 1886.

It appears that one John Paul filed pre-emption declaratory statement for the tracts, April 24, 1871, alleging settlement March 1, previous. He subsequently offered final proof, which was rejected by the local officers, because he was not qualified to file for or enter the land, for the reason that he had prior thereto completed a pre-emption for land in Colorado, upon which patent had issued. After the rejection of his final proof he entered into a contract to purchase the land of the railroad company. It also appears that one Bennett Degenhart, on December 27, 1883, presented his application to make homestead entry of said tract, alleging settlement in July, 1882, and on the protest of the railroad company against the acceptance of the same a hearing was had, and on final appeal to the Department Degenhart's application was rejected. (Degenhart v. Northern Pacific, 15 L. D., 159.) motion for review of this decision was denied, December 21, 1892, and the case against Degenhart was formally closed on the records of your office.

A

The present controversy arises on the application of Thomas B. Rogers, filed in the local office August 21, 1895, to make homestead entry of the tract, on the ground that under the decision of Supreme Court in Whitney v. Taylor (158 U. S., 85,) the pre-emption filing of John Paul, existing of record on February 21, 1872, the date of the withdrawal of lands within the limits of the grant, excepted the land from the operation thereof.

On consideration of this application your office, by letter of September 23, 1895, decided that, under the doctrine of the Whitney-Taylor case, the land was excepted from the grant. The connection of the other parties with the case was stated, substantially, as above, then the following order was made:

Should this decision holding the company's list for cancellation as to the land involved become final, and should it appear upon an investigation that Paul and Degenhart have abandoned their respective interests in said land, Mr. Rogers will be permitted to make homestead entry therefor, in accordance with his original application, but not otherwise. If Mr. Paul is, as he claims, a bona fide purchaser of the land from the railroad company, it would appear that he is entitled to relief under act of March 3, 1887, and in any case should the railroad claim be eliminated and other parties set up a claim to the land, a hearing will be necessary in order to determine the respective rights of all adverse claimants.

From this judgment the railroad company has appealed, assigning ́as error, (1) in holding the expired pre-emption filing of John Paul was sufficient to except this land from the operation of the grant, and (2) for any reason to have rejected the claim of the company.

It is contended by counsel that, inasmuch as the question as to the

right of the company to select this land was decided in its favor in the case of Degenhart v. Northern Pacific that this case is stare decisis; that the decision in that case

should be conclusive, and inasmuch as it was then affirmatively found that Paul was not a qualified pre-emptor, it necessarily follows that his filing was an absolute nullity, and could have no possible effect upon the operation of the railroad grant.

I do not conceive this position of counsel to be sound. It is shown. that Paul's filing was of record and uncanceled at the date of withdrawal on general route, and also of definite location. Under the doctrine of the Whitney-Taylor case, as construed by the Department in Fish v. Northern Pacific (23 L. D., 15), this filing excepted the land from the grant, and the company can not be heard to question the legality of the filing or the qualifications of the pre-emptor. The test should be: was there a filing on record at the time. If there was, it

was then simply a question between the government and entryman, in which the railroad company would not be permitted to be heard. Your office judgment is therefore affirmed.

ADDITIONAL HOMESTEAD ENTRY-SECTION 6, ACT OF MARCH 2, 1889. WALLACE H. HERRICK.

The right to make additional homestead entry under section 6, act of March 2, 1889, is limited to cases where the original entry was made prior to the passage of said act.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.)

uary 8, 1897.

(S. V. P.)

I have examined the record brought up by the appeal of Wallace H. Herrick from the decision of your office rendered October 10, 1895, rejecting his application to make homestead entry of lot 3, NW. † of the NW. Sec. 26, T. 27 N., R. 21 W., Missoula land district, Montana. It appears that Herrick made said application August 7, 1895, stating in his preliminary affidavit

I have heretofore made homestead entry of the SE. of NW. Sec. 26, T. 30 N., R. 21, for which I hold receiver's duplicate receipt No. 745, issued May 2d, 1895, at U. S. local land office, Missoula, Montana.

The local office rejected said application for the reason that "Wallace H. Herrick has exhausted his homestead right as shown by affi davit accompanying the application, and by records of this office. See 15 L. D., 285." This action you affirmed on appeal. The record of the entry referred to in Herrick's preliminary affidavit accompanies the papers sent up with his appeal, and it appears therefrom that said entry was made January 19, 1893, and commuted May 2, 1895.

It is urged on behalf of appellant that he is entitled to make the entry in question under section six, act of March 2, 1889 (25 Stat., 854), which provides—

That every person entitled under the provisions of the homestead laws to enter a

homestead, who has heretofore complied with or who shall hereafter comply with the conditions of said laws, and who shall have made his final proof thereunder for a quantity of land less than one hundred and sixty acres and received the receiver's final receipt therefor, shall be entitled under said laws to enter as a personal right, and not assignable, by legal subdivisions of the public lands of the United States subject to homestead entry, so much additional land, as added to the quantity previously so entered by him shall not exceed one hundred and sixty acres.

In the departmental circular issued March 8, 1889 (8 L. D., 314), this provision was held applicable only in cases where the original entry was made prior to the passage of said act, and this construction has since been followed; John W. Cooper et al. (15 L. D., 285). The decision of your office is therefore affirmed.

HOMESTEAD-SETTLEMENT-TRADE AND BUSINESS.

NORTHERN PACIFIC R. R. Co. ET AL. v. WALDON.

The homestead law does not contemplate that the right of entry shall be exercised by one who makes settlement primarily and chiefly for trade and business, and not for agricultural purposes.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.)

uary 18, 1897.

(C. J. W.)

On April 6, 1886, John S. Waldon made application to make homestead entry for W. SW. 4, Sec. 5, T. 130 N., R. 79 W., Bismarck, North Dakota, land district. The local officers rejected his application, and on appeal by him to your office, their decision was reversed, and on June 30, 1886, Waldon made homestead entry, No. 4317, for S. ₫ SW. 1, Sec. 5, T. 130 N., R. 79 W. Waldon gave notice of his intention to make final proof August 19, 1889. The taking of such proof was adjourned to August 26, 1889, at which time John A. Rea, as attorney for James G. Pitts and James McLaughlin, and F. M. Dudley and William H. Francis, attorneys for the Northern Pacific Railroad Company filed protests against the allowance of Waldon's proof. The land is within the indemnity limits of said railroad company, and was embraced in list 26 of its selection, filed January 8, 1885.

By letter "F" of March 20, 1895, the case was closed adversely to the right of the company to the land. The protestants do not undertake to set up any prior right in themselves but allege that Waldon never settled upon the land in good faith, intending to claim the same under the settlement laws; that at the date of the alleged settlement the land was not legally subject to either homestead or pre-emption settlement; that the entry and alleged settlement were illegal, made in fraud and bad faith and for the purpose of speculation and trade, and that Waldon has failed to meet the requirements of the homestead law, as to residence upon and cultivation of the land claimed by him. A hearing was had August 27, 1889, with all parties present.