3

coal is found in the precious-metal-bearing states, and territories,' with the exceptions hereinafter noted, and in Arkansas, Louisiana, and Florida. As heretofore noted, Alabama, Michigan, Minnesota, Wisconsin, Kansas, and Missouri are excepted from the operation of the federal mining laws. Nor is the system operative in Oklahoma.* The District of Alaska, however, is not subject to the coal land laws, as the act providing a civil government for this district only extends the operation of the laws of the United States relating to mining claims, and appropriated coal lands are not "mining claims" within the meaning of the law.

ARTICLE II. MANNER OF ACQUIRING TITLE TO COAL LANDS.

2501. Who may enter coal lands. 502. Different classes of entries. 503. Private entry under Revised Statutes, section twentythree hundred and forty

seven.

2504. Preferential right of pur

chase under Revised Stat

utes, section twenty-three hundred and forty-eight. 2505. The declaratory statement. 506. Assignability of rights.

507. The purchase price. 508. The final entry. 2509. Conclusions.

inchoate

501. Who may enter coal lands.- Entries of coal lands may be made by individuals or associations of perIn the case of an individual, he must be above the age of twenty-one years and a citizen of the United States, or he must have declared his intention to become such."

sons.

At one time, the department held that married women could not make entry of this class of lands,' but this con

1 See, ante, ¿ 81.

2 For method of acquiring coal lands in Alabama, see, Circ. Instructions, 10 Copp's L. O. 54. In re Robert Lalley, Id. 55.

3 See, ante, ¿ 20.

Act of March 3, 1891, 16, 26 Stats. at Large, 1026.

In 2 81 we have erroneously included this territory in the list of precious-metal-bearing states which are subject to the general mining laws. 5 May 17, 1884, 23 Stats. at Large, 24.

6 Rev. Stats., ? 2347.

In re Nichol, 15 Copp's L. O. 255.

struction of the law, which was manifestly erroneous,' is no longer followed.

An association of persons, as the term is used in the coal land laws, is uniformly construed by the department to include corporations; but each individual of such association, whether incorporated or not, must possess the requisite qualifications. The law expressly so provides. The ownership, by one member of an association seeking to enter coal lands, of interests in other lands claimed under the coal land laws disqualifies the entire association. The right to pur

chase coal lands can be exercised but once.3

If an association of persons makes a coal entry embrac ing a less area than it might have applied for, such entry is a bar to a second one.1 Where a valid reason therefor exists, such as may be instanced by a case where the applicant was unable to complete an asserted right by reason of successful adverse claims to the land sought to be entered, the cancellation of his declaratory statement would be without prejudice to a second application for other lands.5 The rule applies, generally speaking, to those who have perfected their entries, or when the failure to complete the entry is the result of their own neglect. The rule has no application to a case where one buys, and, prior to entry, sells a preferential right."

A coal entry may be made by one qualified person for the benefit of another, provided the latter is himself qualified and has not exhausted his privilege. An entry sought to be made by one for the benefit of a disqualified person,"

2 In re Hawes, 5 L. D. 224; Kerr v. Utah-Wyoming Imp. Co., 2 L. D. 727. 3 In re Kimball, 3 Copp's L. O. 50; In re Eiseman, 10 L. D. 539; In re Dearden, 11 L.D. 351; In re Smith, 16 Copp's L.O. 112; In re Negus, 11 L.D. 32. In re Kimball, 3 Copp's L. O. 50.

5 In re Eiseman, 10 L. D. 539; In re Dearden, 11 L. D. 351; In re Conner v. Terry, 15 L. D. 310.

In re Hutchings, 4 Copp's L. O. 142; In re John McMillan, 7 L. D. 181; In re Smith, 16 Copp's L. O. 112.

7 In re McConnell, 18 L. D. 414.

8 Lipscomb v. Nichols, 6 Colo. 290. See, also, Union Coal Co., 17 L. D. 351; In re Durango L. & C. Co., 18 L. D. 382; In re Allen, 8 L. D. 140.

9 In re Adolph Peterson, 6 L. D. 371; Conner v. Terry, 15 L. D. 310.

or for one who, being originally qualified, has previously exhausted his rights,' or when made in the interest of a corporation or association of persons, some of whom are either disqualified or have once availed themselves of the -privilege, is a fraud upon the government, and may be annulled upon proper proceedings in that behalf. Contracts whereby such a result is sought to be accomplished are contrary to public policy, and therefore void.3

However, an entry by an association of persons, all of whom are qualified at the date of entry, is not vitiated by the fact that at some point of time previous thereto one or more of them was disqualified.1

2502. Different classes of entries.-Coal lands are disposed of:

(1) By ordinary private entry, under the provisions of section twenty-three hundred and forty-seven of the Revised Statutes;

(2) By pre-emption or preference right of purchase, under section twenty-three hundred and forty-eight.

The two classes of entries have the following features in

common:

(A) The persons or associations must possess the same qualifications;

(B) The purchase price to be paid upon final entry is

the same;

(c) Final entries may only be made upon surveyed lands. There can be no segregation of fractional parts;" (D) The tracts applied for must be contiguous.

1 McGillicuddy v. Tompkins, 14 L. D. 633.

2 United States v. Trinidad Coal & C. Co., 137 U. S. 160. Johnson v. Leonhard, 1 Wash. St. 564.

6

Kerr v. Utah-Wyoming Imp. Co., 2 L. D. 727; Kerr v. Carlton, 10 Copp's L. 0.255.

5 Mitchell v. Brown, 3 L. D. 65; In re Cameron, 10 L. D. 195; In re Lyon, 20 L. D. 556.

6 In re Masterson, 7 L. D. 172; S. C. on review, Id. 577; Kendall v. 12 L. D. 419.

Hall,

2 503. Private entry under Revised Statutes, section twenty-three hundred and forty-seven. The right to enter coal lands under section twenty-three hundred and forty-seven of the Revised Statutes may be exercised upon surveyed lands without previous occupation or improvement. Necessarily, the lands sought to be entered must be vacant, and otherwise unreserved and unappropriated. In other words, they must be public lands.' They may only be applied for by government subdivisions and in limited quantities; that is, an individual may not acquire to exceed one hundred and sixty acres, and an association of persons not to exceed three hundred and twenty acres.

To obtain title to lands under this section, the applicant is required to file with the register of the proper land office a verified application, describing the lands sought to be purchased, his qualification under the law to make the entry, and such other facts as to the character and status of the land as will establish in the applicant a prima facie right of purchase.

If the land is clear on the tract books, the register certifies the fact to the receiver, and the price is determined according to the rule announced in a subsequent section.3 Payment must then be made, whereupon the final certificate is issued, and in due time the patent follows.

Private entry will not be allowed so as to embrace one tract in the capacity of an assignee, and another under the individual right of the purchaser."

Until application is made to enter and purchase under this section, the claimant has no right which is worthy of recognition. His possession, if he has any, must yield to one who complies with the law and files upon the land."

2504. Preferential right of purchase under Revised Statutes, section twenty-three hundred and forty-eight. In order to exercise the preferential right of purchase 1 See, ante, 2 112.

2 See form in Circ. Instructions, 1 L. D. 688. See appendix. See, post, 507.

In re Ludlam, 17 L. D. 22.

5 Leheart v. Dunker, 4 L. D. 522.

granted by section twenty-three hundred and forty-eight, there are two essential prerequisites:

(1) The applicant must be in the actual possession of the lands applied for;1

(2) He must, prior to final entry, have opened and improved the mines situated thereon."

The improvements made must be such as to clearly indicate good faith."

In determining what constitutes good faith, the applicant's degree and condition in life may be considered.1

Priority of possession and improvement, followed by proper filing and development of the mine in good faith, are the foundation of the preferential right."

This right may be exercised by an individual or an association of persons. When exercised by an individual, it is limited to one hundred and sixty acres, and by an association of persons, ordinarily to three hundred and twenty acres. Entries by associations consisting of not less than four persons may, however, be extended to six hundred and forty acres, after they shall have expended not less than five thousand dollars in working and improving such mines.

The preferential right may be initiated by entering i nto possession and improving unsurveyed lands. The right, however, may only be perfected after the lands shall have been surveyed and the township plat filed in the local

land office.

2 505. The declaratory statement. If the preferential right is initiated upon surveyed lands, the claimant must present to the register of the proper land office, within sixty days after the date of actual possession, and the

1 In re Negus, 11 L. D. 32; Walker v. Taylor, 23 L. D. 110; McDaniel v. Bell, 9 L. D. 15.

2 Walker v. Taylor, 23 L. D. 10; Ouimette v. O'Conner, 22 L. D. 538. 3 In re Negus, 11 L. D. 32.

Watkins v. Garner, 13 L. D. 414.

5 Bullard v. Flanagan, 11 L. D. 515.