(See cases of John S. Maginnis, 33 L. D., 306; John N. Dickerson, 33 L. D., 498; Cora M. Bassett et al., 37 L. D., 167; and William Gribble, 37 L. D., 329.)

Counsel relies upon the decision in the case of Montana Implement Company (35 L. D., 576), in which case an investigation had been ordered by the Government within the two-year period, and a report favorable to the entry had been made, whereupon your office called upon claimant to furnish additional proof. The Department held that if the proceedings begun prior to the two-year period were abandoned, a new and different proceeding could not be thereafter commenced.

It is not necessary that the report upon which a hearing is ordered be made by the Special Agent originally directed to make the investigation. (Cora M. Bassett et al., supra.) Neither is a proceeding necessarily abandoned by the Government upon receipt of a Special Agent's report which is insufficient upon which to order a hearing, or even a report favorable to the entry. Proceedings begun within proper time prevent the running of the statute until the suspension on account thereof is formally removed. It was not intended in the Montana Implement case, supra, to hold that further investigation might not have been had under the proceedings begun if the same had been advisable. And so in this case, still further investigation could be directed if it appeared advisable to do so. It does not seem, however, that further investigation would probably develop any new material facts, in view of the time that has elapsed and of the investigations already made.

In your said decision, November 27, 1908, explaining the action. taken in your letter of August 18, 1908, you stated that the office preferred to act on the proof rather than proceed to a hearing and, therefore, required a supplemental showing of claimant; but "the question at issue, however, is the same as that incorporated in the protest, viz., whether or not the residence of claimant was sufficient."

The Department considers such action a new proceeding. If the proof upon its face was insufficient, no investigation was necessary to establish that fact. The investigation was ordered upon suspicion and charge of fraud, and unless the Government stands ready to prove the charge, the entry must be patented. It is not understood that you have abandoned the proceedings begun through the investigation originally ordered, but that you considered either of two courses open to you, and you preferred the one taken rather than put the Government to the trouble and expense of a hearing. The result, however, would be a different character of proceeding resulting in a shifting of the burden. After the lapse of two years from the issuance of final receipt, the entryman cannot properly be re

quired to furnish additional evidence of his compliance with law, unless the present requirement be in furtherance of like action theretofore taken. After such period, when an entry is under attack, the burden is upon the Government or the individual who has prevented the running of the statute by proper proceedings begun prior to the two-year period. The party thus attacking an entry must furnish proof to sustain his charge if the entry is to be defeated. In this connection, see case of Montana Implement Company, supra. Therefore, your action requiring additional evidence as to residence was unauthorized.

Counsel representing the transferee contends that in view of the great length of time since making of proof, the land department should now be considered estopped from proceeding further against the entryman because of laches. This view cannot be accepted. Congress, by specific legislation in the said act of 1891, enumerated the conditions under which the Department is estopped from proceeding against entries of this class. As above stated, the conditions therein specified do not obtain in this case. In the absence of a statute of specific limitation, the doctrine of laches does not apply as against the Government. (See United States v. Beebe, 127 U. S., 338; and United States v. Nashville, &c., Railway, 118 U. S., 120.) Furthermore, it cannot be assumed from the mere lapse of time that the land department has lacked diligence in pursuing its investigations. Expedition in such cases depends upon circumstances. The land department should, in justice to claimants, bend every effort to prevent undue delay and bring about as soon as possible a termination of the proceedings commenced against an entry. But it must be remembered that those persons who are guilty of violations of the law do nothing to assist the Government, but, on the contrary, usually make it as difficult as possible for the Government to procure proof of their wrong doing. The extensive and complex ramifications of frauds in connection with entries of public lands in certain sections have imposed an onerous burden upon the Department, and in some cases great delay has been the result. Under the circumstances, however, it should not be said that there has not been proper diligence.

There need be no further delay in this case, however. If you have sufficient information to warrant a hearing thereon, you will order same, and if not, you will pass the entry to patent.

In this connection it may be said that this is one of a number of entries made about the same time for land forming a contiguous body and said to have been made in the interest of the parties shown to be the same as the present transferees. Nine of these cases have been considered in connection with this motion, and, as your orders

for hearing in said cases have been upheld, it would seem that like action should be taken in this case.

Your said decisions of August 18, and November 27, 1908, and departmental decision of January 2, 1909, are modified accordingly.

UNTIMBERED UMATILLA INDIAN LANDS-GRAZING-ACT OF JUNE 29,

1906.

DANIEL C. BOWMAN.

To meet the requirements of the act of June 29, 1906, which provides that purchasers of untimbered Umatilla Indian lands who prior thereto had made full and final payments therefor should be entitled to patent upon submitting satisfactory proof that the lands are not susceptible of cultivation or residence but are exclusively grazing lands, a showing that the lands have actually been used for grazing purposes is not essential, where the fact that they are exclusively grazing in character is otherwise satisfactorily shown. First Assistant Secretary Pierce to the Commissioner of the General (F. W. C.) Land Office, June 11, 1909. (J. H. T.) Motion for review of departmental decision of January 19, 1909, has been filed by Daniel C. Bowman, who made application No. 735 May 8, 1903, to make Umatilla cash entry for the SW. NW. 1, Sec. 35, T. 1 S., R. 33 E., untimbered lands, and the NW. 4 NE. 1, Sec. 30, T. 1 N., R. 30 E., timbered lands, La Grande, Oregon, land district, which was amended April 29, 1908, so as to embrace the SW. 1 NW. 1, Sec. 35, T. 1 S., R. 33 E., and NW. NE. 1, Sec. 30, T. 1 N., R. 35 E., W. M. Proof was made December 20, 1906, and certificate withheld to await the investigation of a special agent.

February 26, 1908, Special Agent Alexander submitted a report recommending that proof be considered under the act of June 29, 1906, and entry be passed to patent, and stating that there are no improvements of any kind; that there is no evidence that entryman made any use of the land; that the tract is a steep hillside, rough, stony and unfit for residence or cultivation, essentially grazing land; and that claimant made application for his own use and benefit.

In the proof offered by claimant it is shown that the land is grazing land, not suitable for residence or cultivation.

By your decision of June 3, 1908, you rejected the proof offered because it was not shown that the land had actually been used by claimant for grazing purposes. You cite the instructions under the act of June 29, 1906, and then state that-

under these instructions it is implied that if the lands are chiefly valuable for grazing and claimant takes them by reason of that purpose, showing no residence or cultivation, he must show that he has grazed same. The best evidence that lands are valuable for grazing purposes is proof that they have been used for that purpose.

Your said decision was affirmed by departmental decision of January 19, 1909, whereupon the motion for review was filed as stated.

The act of March 3, 1885 (23 Stat., 340), providing for the disposition of the Umatilla lands at public sale to the highest bidder at not less than the appraised value, provided:

And before a patent shall issue for the untimbered lands, the purchaser shall make satisfactory proof that he has resided upon the lands purchased at least one year and has reduced at least twenty-five acres to cultivation.

The act of July 1, 1902 (32 Stat., 730; 31 L. D., 392), provided for the disposition of the remaining lands at private sale under the conditions stated in the first act at the appraised price.

The act of March 3, 1905 (33 Stat., 1048, 1072-3; 33 L. D., 515), provided:

That all persons who have heretofore purchased any of the lands of the Umatilla Indian Reservation and have made full and final payment thereof in conformity with the acts of Congress of March 3, 1885, and July 1, 1902, respecting the sale of such lands, shall be entitled to receive patent therefor, upon submitting satisfactory proof to the Secretary of the Interior that the untimbered lands so purchased are not susceptible of cultivation or residence and are exclusively grazing lands incapable of any profitable use other than for grazing purposes.

The law last quoted was reenacted June 29, 1906 (34 Stat., 611). The instructions issued under the act of March 3, 1905 (33 L. D., 515), stated that

such purchasers will be required to show specifically in what respect the untimbered lands so purchased are not susceptible of cultivation, what efforts, if any, have been made to cultivate the same, and for what reasons residence could not be maintained thereon, and that the lands embraced in said entries are exclusively grazing lands incapable of any profitable use other than for grazing purposes, and to what extent they have been so used for grazing purposes since they were purchased.

The original act required residence and cultivation. It did not require grazing. The remedial act of 1906, made it unnecessary to show either residence or cultivation in perfecting entries where full payments had been made prior to said act, where it is satisfactorily shown that the lands are unfit for residence or cultivation. To require that the lands in such cases be grazed, would be to impose a condition not found in the law. The language of the act does not require it and such a requirement would be unreasonable and impracticable. The instructions merely indicated the line of proof in order to inform the Department and aid in an adjudication of the material question as to whether the lands purchased are incapable of any profitable use other than for grazing purposes.

Actual use for grazing would not prove this fact and other evidence might be more convincing than proof of such use.

This land is shown to be rough, steep and devoid of water, and while it may be grazed a portion of the year in common with the surrounding lands, it would not be practicable to fence same with a view to confining stock to this particular tract, on account of lack of water, and especially would such requirement be impracticable for one not living upon the land. The Government agent reporting on this entry supports the showing as to character, location and condition. of the land.

These lands were first opened to entry through public sale, and by the act of 1902, they were made subject to entry at private sale with certain conditions imposed as stated above. The acts of 1905 and 1906 remove these conditions as to entries where full payments were made prior to said acts, respectively, upon the showing therein required to be made. Full payments had been made upon this purchase prior to the act of 1906, and being satisfied from the showing filed that the land cannot be profitably used for other than grazing purposes, I have to direct that in the absence of other objection final cash certificate be issued and the entry as thus completed passed to patent.

The previous departmental decision in this case is, upon the showing now made, recalled and vacated and your decision of June 3, 1908, is reversed. Former departmental decisions not in harmony herewith will no longer be followed.

PARAGRAPH 41 OF MINING REGULATIONS-EXTENT OF VEIN.

INSTRUCTIONS.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., June 11, 1909.

REGISTERS AND RECEIVERS,

United States Land Offices.

SIRS: The attention of the Department has been called to the last clause of paragraph 41 of the mining regulations, approved March 29, 1909 (37 L. D., 728, 766), which provides as follows:

The vein or lode must be fully described, the description to include a statement as to the kind and character of mineral, the extent thereof, whether ore has been extracted and of what amount and value and such other facts as will support the applicants' allegation that the claim contains a valuable mineral deposit.

It seems that the expression, "the extent thereof" is being construed as meaning that the applicant must affirmatively show by proof of exploration that the vein exists in fact throughout the whole length of the claim.