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it appears that all the hay so raised was put upon the top or flat roof of the barn 19 by 45 feet with the hay 12 feet high, and that hay had been hauled from elsewhere (p. 466), and stacked there.

C. E. Pratt, a witness for contestee, stated (p. 479) that he has located possibly 25 homesteaders between Grand Valley and Picence Creek and that in doing so he disregarded "oil shale placer claims" entirely.

It is urged against contestant that there was no discovery of oil shale made upon the lands in question, no location notices posted and no staking of claims, but it appears to have been known and by the classification made it was recognized, that oil-shale strata was contained in and through all these lands. To this effect is the testimony of witness Coryell, for contestee (p. 263). Witness Hubbard, for contestant, who assisted in locating the claims testified (p. 14) that a discovery was made of oil shale on each of the claims, which he recognized as such and which would burn; that printed notices giving the name of the claims, names of locators, description of the land claimed and date of location were posted on each claim (pp. 14, 15); and that the claims were staked. As to the staking this witness was corroborated by witness Dow (pp. 29, 30) and by witness Chris Dere (p. 186), and was done in May. 1918. On the other hand, witness Magor and a number of his employees for contestee, testified that while hunting horses and cattle on the land they never saw any stakes; that they may have overlooked them or that the stakes may have been knocked down shortly after having been set (pp. 429, 487, 489).

As to the annual assessment work, affidavits were made and filed for the period beginning January 1, 1920, and ending June 30, 1921, entries 57 and 58 in the abstract of title exhibit 6. Contestant shows (p. 5) that he made an examination of the ground and found that the assessment work had been done for that period. This fact is disputed by a number of witnesses for contestee, who testified that while hunting for livestock thereabouts that they saw no assessment holes on the claims in question for that year. It appears, however, that the work was not done directly on the claims but on adjoining claims likewise held and owned for their benefit, as a group. This method of doing work was also made desirable it seems because of the hostile attitude of the contestee (pp. 41, 42, and 71). The annual work for the two years ending June 30, 1922, and June 30, 1923, is covered by affidavits of record appearing at entries 77, 80, and 84 of the abstract of title, and also by the testimony of contestee (p. 59), showing dimensions and value to be $100 on each claim for each of the 2-year periods.

As to the relative values of the land for its mineral content and its stock-raising use witness Coryell, for contestee, himself shows that the land is underlaid with the rich oil shales that are to be found in that field (p. 263). Witness H. Comer Wolf, for contestant, in his testimony (p. 134 and following) shows that rich beds of oil shale underlying the claims and in some cases outcroppings thereon have been tested by him as a chemist and valuable oil contents obtained.

Witness Hilton, for contestant, testified to the same facts from a geological standpoint (p. 82 of the record) and in this connection introduced a vertical geologic section made by him, as "Exhibit 10," from which the total thickness of these shale deposits below contestee's house aggregate about 500 feet, while smaller shale beds are shown above the house. He further shows that the 61.8 feet of commercial oil shale as shown on Exhibit 10 produces 28 gallons of oil per ton (p. 88 and following). He shows that beds of shale may be profitably worked at a depth of 600 to 1,200 feet (p. 92). The testimony of witness Jensen (p. 167 and following) shows the cost of production of oil from shale (p. 170) and profit to be derived.

The land lies at an altitude of between 7,000 and 8.000 feet, and with the exception of 2 cows, 3 horses, and 5 burros (p. 466) contestee has had no stock of his own upon it, and from the testimony of Forest Supervisor Blair (p. 205), it appears that it would take 10 acres of land of that character to pasture 1 cow, or on 640 acres, 64 head, for the grazing period of about 5 months; that the charge for that number of cattle on the public range in that vicinity is 55 cents a head, or $35.20, the value of that acreage for grazing purposes, or $70.40 for twice that number. On the other hand, according to the testimony of County Assessor McQuirk (p. 231) the taxes on 640 acres in that vicinity would be $90.20 per annum, a loss that would have to be taken care of along with

numerous other expenses from an average increase of the stock of something less than 75 per cent it was testified.

It clearly appears that the lands in question, along with a large area of other lands in that vicinity are mineral in character and valuable as a source of petroleum and nitrogen; that oil shale was discovered thereon and that they were located, surveyed, staked, and filed upon by contestant and his grantors long before the entries in conflict were made. It also appears that a certain amount of assessment work, said to be the required amount for each year, has been done on and for the benefit of each of said claims and that their further development for the mineral contained therein is justified.

Your decision is therefore reversed and said homestead entries 018825 and 018827 in so far as they conflict with said mining claims are hereby held for cancellation, subject to the usual right of appeal.

Notify the parties in interest hereof, and in due time report with evidence of service.

Very respectfully,

WILLIAM SPRY, Commissioner.

Senator WALSH of Montana. It would appear then that the commissioner did not consider the question of discovery at all.

Mr. FINNEY. Oh, yes.

Senator WALSH of Montana. But he does not discuss the subject. Mr. FINNEY. There is no extended discussion of what they were. Senator WALSH of Montana. There is no statement about it, is there; just merely that discovery was made?

Mr. FINNEY. That is substantially correct, except one man testified that he had tested some of the shale on the claim and it would burn. Senator WALSH of Montana. There is abundant evidence apparently that there is on the claim valuable shale. That is quite aside from the question, however, as to whether discovery was made, because the contention, the real bone of contention, is that most of this is valuable at depths.

Mr. FINNEY. Yes, I understand.

Senator WALSH of Montana. But, that is not the question. The question is, Did he actually discover

Mr. FINNEY (interposing). The commissioner says oil shale was discovered thereon. That is his finding.

Senator WALSH of Montana. Yes, but he does not tell us what constituted that discovery or what they did discover.

Mr. FINNEY, No.

Senator WALSH of Montana. At the time of the hearing there were people who testified, and testified undoubtedly truly, that it was valuable oil shale, and

Senator KENDRICK (interposing). May I ask a question here?
Senator WALSH of Montana. Certainly.

Senator KENDRICK. Have you ever, in your long practice-and no doubt you have had more of it, perhaps, than any man in the West, before the courts, in connection with what constitutes discovery under the old placer mining law, discovery of oil under that lawhave you ever known the definition of a discovery to be satisfactory to anybody?

Senator WALSH of Montana. Well, the question as to what constitutes a discovery, Senator, as it will appear later, was the subject of very earnest discussion and much reference will be made to it. I am calling attention to the fact that Commissioner Spry did not discuss that subject at all.

Senator KENDRICK. Well, you are calling attention to the fact, as I understand it, that there is no reference on his part to what de

velopment was done, what work was done in the way of shafts or drifts.

Senator WALSH of Montana: No; the prospector goes out in the hills

Senator KENDRICK. Yes, I know about that.

Senator WALSH of Montana. I speak now about quartz. He goes out in the hills and he finds what he believes to be a ledge and he proceeds to take out the rock and to show that it is a vein. Then he takes some of that rock down to an assayer and gets the matter assayed to determine that it is rock containing mineral. There is nothing here, no evidence here as to what was done by the mineral claimant with respect to that.

Senator KENDRICK. The reference is made to the amount expended. Now, I do not recall any particular reference to the actual physical showing made in the way of such development as you have discussed. Senator WALSH of Montana. That is what I am speaking about. Mr. FINNEY. The commissioner did not state in here that at a certain point a hole was dug 8 feet deep and shale of 20 gallons to the ton discovered.

Senator WALSH of Montana. And the shale was taken out and taken to a chemist or other assayer, and that kind of thing, and that shale contained so much oil per ton.

Mr. FINNEY. Well, witness Hubbard said this: This is just a summary, not a restatement of his testimony: That a discovery was made of oil shale on each of the claims, which he recognized as such and which would burn. Those fellows had a habit of taking a match or fire and burning this stuff. It will burn, you know, if it has the oil in it.

Senator WALSH of Montana. I am speaking now about Commissioner Spry's review of the thing. A witness testified apparently that they found shale that would burn.

Mr. FINNEY. Yes.

Senator WALSH of Montana. So that that amount of testimony concerning a discovery was in the record, but I am calling attention to the fact that Commissioner Spry does not discuss the subject as to whether that was sufficient to constitute a discovery or not.

Let us inquire now, if you will go back to the decision of the register and receiver, and omitting the formal portions, as to what they say, if anything, in their opinion, concerning the discovery. Mr. FINNEY. In the summary it appears that no actual discovery of oil shale has been made on the land in controversy.

Under the paragraph entitled "Discovery," appears the following [reading]:

Discovery. The land in this controversy was classified as valuable for petroleum and nitrogen on May 23. 1916, and the contestee, when applying for his homestead, accepted such classification. The classification of land, however, does not excuse a mineral claimant from an actual discovery in order to properly initiate his claim. In the case of Remis v. Murray (22 L. D. 411) it is stated: "The fact that land is returned (classified) as mineral does not in any event avoid the necessity of a discovery of mineral and any location made without a discovery as required by statute is void."

The evidence in this case discloses a grave question, whether any shale of sufficient value to ever be marketable is or ever has been exposed on that part of the Summers place in controversy.

It is the contention of the contestant in this case that oil shale values do not materially change throughout a certain stratum. It is evident from the

testimony that the strata of oil shale or rock exposed on the Summers homestead by nature, or the efforts of the contestee or those in his service, or his predecessors in title, are not and probably never will be valuable as oil shale deposits because of the thinness of the strata or the leanness as to oil content. If there were a probability of these strata increasing materially in thickness or oil content with distance from the surface, as in the case of certain precious metals, then a valid discovery might be claimed under the rule laid down that an actual disclosure of commercial ore is not essential to effect an adequate discovery (48 L. D. 598, U. S. v. Bunker Hill and Sullivan Mining & Concentrating Company).

The contestant's own contention and one that is well supported in fact shows that all beds of oil shale are in place, each of a thickness which does not vary materially and of a certain oil content which varies but slightly. While there appears to be no question but that immense shale beds underlie this land at a considerable depth, it is just as clear that the higher strata exposed on the Summers place, and on which discovery is claimed, do not now constitute valuable deposits and by development in the future could not be expected to show such value as to make them merchantable. Hence it is our opinion that on such deposits a discovery can not be predicated on which to base a valid m neral claim to the land.

Senator WALSH of Montana. It will be observed that the register and receiver are discussing the question as to what is necessary in order to constitute a discovery. The commissioner does not discuss that subject.

Mr. FINNEY. No.

Senator WALSH of Montana. Now, then, let us pass

Senator GLENN (interposing). Isn't that a matter of law, Senator Walsh?

Senator WALSH of Montana. It is a matter of law and the facts. Senator GLENN. As to what constitutes a valuable discovery, is a matter of law.

Senator WALSH of Montana. You must apply it to the facts.
Senator GLENN. Certainly, it must be applied to the facts.

Mr. FINNEY. I am not undertaking to state now all of the facts that were in the record. The commissioner does not set them out in detail in his paper.

Senator WALSH of Montana. I am not taking any position with respect to any of these matters. I am simply endeavoring to develop. what the controversy was about.

Mr. FINNEY. Yes.

Senator WALSH of Montana. An apeal was then apparently taken from the commissioner to the Secretary.

Mr. FINNEY. Yes, sir; the homestead claimant then appealed to the Secretary of the Interior.

Senator WALSH of Montana. Now, let us see what the Secretary has to say about it.

Mr. FINNEY. The record was reviewed in the office of the Secretary.

Senator PITTMAN. Who was the Secretary of the Interior at that time?

Mr. FINNEY. Secretary Work was Secretary, and I was First Assistant Secretary of the Interior.

Senator WALSH of Montana. Now, in reading this, you may omit the formal portion.

Mr. FINNEY. On December 20, 1924, on appeal, I rendered the decision which I will put in the record.

Senator WALSH of Montana. Before we go to that Mr. Finney, can you tell us who actually wrote the opinion bearing the signature of Commissioner Spry?

Mr. FINNEY. I do not know whether it shows the initials or not. No, sir; this copy I have does not show the initials.

Senator WALSH of Montana. In the ordinary procedure of the office, who would be likely to have written the opinion?

Mr. FINNEY. It would be prepared by one of the examiners in the mineral division, Mr. Jones-I am told by Mr. Goerner-who is in that division and as you know, the practice is to have the decision reviewed by the chief of the division and then it passes to a board of law review, and from the board of law review to the commissioner. That is the ordinary procedure.

Senator WALSH of Montana. Who constituted the board of law review at that time?

Mr. FINNEY. John McPhaul; Millrick, now dead; Mr. Lewis, now dead; Mr. Altizer, who is still in the land office. Now, some of that board unquestionably reviewed the decision because that was the practice.

May I proceed, Senator?

Senator WALSH of Montana. Yes.

Senator KENDRICK. May I ask a question here?

Mr. FINNEY. Yes, sir.

Senator KENDRICK. When these claims were filed, one for mineral and one for homesteads, was it consistent with your regulations, or the law, to file both claims on the same land subject to the mineral restrictions in one and the surface rights on the other?

Mr. FINNEY. Let me answer that in this way, Senator. There is a law of 1914 which permits the entry of the surface or mineral lands with a reservation of the minerals to the Government. Then, the stock-raising homestead law has a separate provision of its own whereby all minerals under a stock-raising entry are reserved to the Government. The law says those reserved minerals underneath are to be disposed of as may be directed by Congress. Therefore, if a homesteader got his patent with that sort of a reservation, and no other law had been passed by Congress, those minerals would just lie there for future disposition. But, in this case, the mineral claimant claimed and the record shows that his location was made prior to either of the homestead entries, that he had maintained it meanwhile and was in possession of it. Consequently, if his claim was a valid one, and could be carried through under the law, he would become entitled to a patent not only for the surface but for all the minerals in the land.

Senator WALSH of Montana. Senator Kendrick, there is a further consideration entirely aside from these statutes. You see, the mineral claimant does not make any filing in the land office at all. A placer mining claimant makes his location and files his notice of location in the office of the county recorder or register of deeds, and then a homestead claimant comes along and goes to the land office to make his filing, and, so far as the land office records disclose, there is no filing on the land at all, so they accept his homestead filing and the mineral claimant's filing is in the office of the county recorder and the homestead claimant's filing is in the land office.

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