On the second proposition it has been repeatedly held that the State's title to school lands under the act of March 3, 1853 (10 Stat., 244), vests at the date of the completion of the survey,

and if the land, although in reality mineral, was not then known to be mineral, the subsequent discovery of its mineral character would not divest the title which had already passed. (Abraham L. Miner, 9 L. D., 408; Pereira r. Jacks, 15 L. D., 273.)

There is nothing in the affidavit of contest or the evidence submitted to show anything to defeat the operation of the grant. All that is claimed is that cinnabar exists on the surface of the ground and its presence was sufficient to characterize the land as mineral.

While there was no error in your office judgment as the case was then presented, yet there have been some subsequent developments that render it necessary to further consider the matter.

My attention is called to the fact that the State has, subsequent to the initiation of this proceeding by Rice, made indemnity selections in lieu of the land in controversy, two of which-Stockton lists Nos. 220 and 221-have been approved by your office to the extent of sixty acres, and two others-Stockton list No. 222, and San Francisco list No. 5273, 10 acres each-are now pending. It is stated by counsel that all these selections have been approved, but informal inquiry in your office shows the fact to be as above stated. The reason assigned by the State for making these indemnity selections is that the land in controversy is mineral in character.

By act of Congress of February 28, 1891 (26 Stat., 796), Sec. 2275 R. S., was amended, and among other provisions therein is found this

And other lands of equal acreage are also hereby appropriated and granted, and may be selected by said State or Territory where sections sixteen and thirty-six are mineral land, or are included within any Indian, military, or other reservation, or are otherwise disposed of by the United States: Provided, Where any State is entitled to said sections sixteen and thirty-six, or where said sections are reserved to any Territory, notwithstanding the same may be mineral land or embraced within a military, Indian, or other reservation, the selection of such lands in lieu thereof by said State or Territory shall be a waiver of its right to said sections.

Under the terms of this statute it is clear that the State may make indemnity selections whenever any of its granted. school lands are found to be mineral in character. In reference to the land in controversy the State has, presumably, satisfied itself that it does not fall within the terms of its grant and has selected other lands in lieu thereof. The Department, in commenting on the proviso above quoted, has said:

Conceding that the school grant attached to the specific sections after they were designated by the survey, the State having selected equivalent land in lieu thereof, the government may hold the State to its waiver of the school sections and dispose of it as part of the public domain. (Gregg et al. v. Colorado, 15 L. D., 151.)

It seems to me that this rule may be applied in the case at bar, and that the State by reason of its selection is estopped from making any further claim to the land in controversy.

Notwithstanding the decision of your office was correct on the record

as it then stood, yet by reason of the action of the State since the rendition of your office judgment, it is clear that the land in controversy is now a part of the public domain and may be disposed of as such, and that part of your office judgment that held that the land inured to the State under its grant must be vacated.

It is so ordered.

SECOND HOMESTEAD ENTRY-CORROBORATORY AFFIDAVIT.

BOHUN v. BREST.

The right to make a second homestead entry may be recognized where the first through mistake was not made for the land intended, and was accordingly relinquished.

An official certificate of the register as to the truthfulness of the applicant may be accepted in lieu of the corroboratory affidavit required in the case of an application to make secord homestead entry, where the failure to furnish such affidavit is satisfactorily explained.

uary 8, 1897.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.) (C. J. W.) On May 25, 1891, Nicholas Brest made homestead entry No. 255 for the E.SE. Sec. 24, T. 24 N., R. 21 E., and NW. 4 SW. and SW. NW. Sec. 22, T. 24 N., R. 22 E., Waterville land district, Washington. S. L. Bohun contested the entry, after due notice served by publication, December 8, 1894. On January 15, 1895, the case came on for hearing, and Brest made default. The evidence disclosed the fact that Brest had never lived on or improved the land. The local officers recommended the cancellation of the entry, and there being no appeal, on April 26, 1895, your office canceled said entry.

On filing his contest Bohun made application to enter the land embraced in Brest's entry, and which he alleged Brest had abandoned, and he also filed an application for the restoration of his homestead rights. It appears from the record that on April 26, 1889, Bohun made homestead entry No. 219 for the NW. 4, Sec. 26, T. 15 N., R. 3 W., Guthrie land district, Oklahoma. The same was canceled by relinquishment on November 21, 1889, when Peter Anderson entered the said tract. On January 14, 1895, the local officers forwarded to your office the application of Bohun to make entry of the land covered by his contest and application for restoration of his homestead rights, with the recommendation that the same be granted. On April 26, 1895, your office rejected said application for the reason, and upon the ground, that Bohun's affidavit, in which he set forth the facts upon which he based his right to second entry, was uncorroborated. From this decision Bohun appealed. The principal ground of his appeal is that he is a qualified homesteader, and under the law is entitled to a homestead of one hundred and sixty acres, and that he has never perfected an entry or exhausted his rights. Bohun, in his affidavit, states

that after making homestead entry No. 219 (at Guthrie) he returned to his home in Nebraska, with the intention of going upon the land entered within six months, but was informed by parties at Guthrie that the surveyor, who was employed to run out the lines, had made a mistake, and that the entry had been made on the wrong tract of land in another township, and that before he could return, other parties had filed and made improvements on the land that he intended to file on, and that at the time he was unable to stand the cost of a contest, and that the land embraced in the entry was not desirable and not fit for farming. That he does not remember the names of the parties who would corroborate this affidavit, and could not get their affidavits without going to Guthrie for that purpose. He further states that after finding the error that had been committed, he relinquished the land back to the government on the 21st day of November, 1889, and that he has never had the benefit of the homestead laws, and that he did not sell his right to the land and did not receive the amount of his filing fees.

It is evident that it is the purpose of the law that every citizen possessing the requisite qualifications should be entitled to a homestead of one hundred and sixty acres of public land subject to entry, and that a second entry may be made in instances where, for some cause unforeseen, the first entry has failed without fault or fraud upon the part of the entryman. If the facts set out in the affidavit of Bohun are true, he has not exhausted his homestead rights, and should be permitted to make a second entry. It was evidently not because of the insufficiency of the facts, that your office rejected his application, but because it was held that they were not sufficiently proven-the objection being that the usual corroborating affidavit was wanting. The party is competent to testify in his own behalf, but lest a door for fraud should be opened by depending entirely upon the testimony of the applicant in this class of cases, it has been the rule of the Department to require some sort of corroboration of the truth of the applicant's statements. Your office doubtless sought to follow this rule in rendering the decision complained of. It is not believed that under the peculiar facts of this case, the rule as properly construed would be violated by granting the applicant's petition. The chief office of corroborative evidence of whatever nature it may be is to give assurance of the good faith and truthfulness of the affiant to be corroborated. The reason for the failure in this case to furnish additional affidavits setting up the same facts stated in the applicant's affidavit is given, and that reason is at least forcible. It is followed by evidence of the general truthfulness of the affiant. The register of the land office at Waterville, in forwarding the application of Bohun for restoration of his homestead right, mentions the fact that his showing is not corroborated, and then adds the following—

The tract of land that he makes application for is now held by Nicholas Brest homestead entry No. 255, and Bohun has filed a contest against said tract which I 10671-VOL 24

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presume from what I can learn from other parties will be an ex parte contest. The register has known Mr. Bohun for sometime, and believes him to be a truthful man, and we would recommend that his right be restored and that he be allowed to make this entry.

The facts stated in Bohun's affidavit are presumptively true, and this presumption is strengthened by the official report of the register to the effect that he knows and believes him to be a truthful man. This report made by an officer of the government, acting under oath, is equivalent to an affidavit, and may be regarded as a substantial compliance with the rule requiring initiatory affidavits to be corroborated. The land he seeks to enter was restored to the public domain through the instrumentality of a contest initiated by him and proof produced by him. It is believed that the showing made is sufficient under the circumstances to authorize the restoration of his homestead right.

Your office decision is accordingly reversed, and Bohun will be allowed to make second entry for the land applied for.

MINING CLAIM-JUDICIAL PROCEEDINGS-SECTION 2332, R. S.

CAIN ET AL. v. ADDENDA MINING CO.

Judicial proceedings are not effective as against an application for mineral patent if not based upon an adverse claim as provided by statute.

Continuous possession of a mining claim, with due compliance of law, for a period equal to the time prescribed by the statute of limitations for mining claims, in the State wherein such claim is situated, entitles the claimant under the provisions of section 2332, R. S., to a patent, in the absence of any adverse claim. Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.) (E. B., Jr.)

uary 8, 1897.

The record in this case shows that The Addenda Gold and Silver Mining Company, a corporation organized under the laws of California, made application November 11, 1879, for patent to the Addenda lode claim, situated in Bodie, California, land district; that the claim was located May 19, 1877; that the period of publication ended January 17, 1880; that during the period of publication the said application was adversed by the owner of the Concordia lode claim, suit duly commenced thereon, and judgment given April 13, 1882, awarding the ground in conflict to the adverse claimant; that on December 10, 1894, the said company made mineral entry No. 240 for what remained after excluding the conflict with the Concordia lode and the Insurance lode; that on April 27, 1895, James S. Cain, Alexander J. McCone, and John W. Kelly filed a protest against said entry, alleging, in effect,—

1. That the Addenda claim had been abandoned by said company subsequent to application for patent and before entry;

2. That in 1894, and subsequent to the alleged abandonment, the Addenda claim had been re-located, and that protestants were owners of the ground under the re-location; and

3. That in November, 1894, they commenced suit against said company to quiet title, which suit was then pending.

In the course of proceedings fully set out in your office decisions of September 3, 1895, and (on review) January 9, 1896, and not necessary to be recited here in detail, your office by its former decision held that protestants' said suit, not having been instituted under any provision of the mining laws, did not authorize any stay of proceedings under the company's application for patent; that it was shown that the company had in good faith endeavored to comply with the mining laws; that the alleged re-location by one P. Curtis, under which protestants claimed, having been made by him while agent of said company, was in fraud of the company's rights, gave protestant no right against the company, was insufficient to defeat its entry; and therefore dismissed the protest. Upon motion for review by protestants, your office, in its latter decision, basing its action largely upon a judgment in favor of protestants in their said suit, made and entered in the superior court of Mono county, California, August 30, 1895, overruled its former decision and held the company's entry for cancellation. The company thereupon appealed, assigning error as follows:

The Commissioner erred in holding that the said Addenda Gold and Silver Mining Company had not complied in good faith with the laws governing and holding mining claims.

The Commissioner erred in holding that the only remedy in the above entitled matter was by an action in equity to hold the re-locators and their grantees trustees for the Addenda Gold and Silver Mining Company.

The Commissioner erred in holding that the Addenda Gold and Silver Mining Company abandoned its claim by failing to file a notice of its intention to hold the said location in good faith under the act of November 3rd, 1893.

The Commissioner erred in holding that there is a final decree in favor of the plaintiffs in the case of Cain et al. v. Addenda Gold and Silver Mining Company. The Commissioner erred in holding that the application for a patent should be canceled instead of suspended during the pendency of the action of Cain et al. v. Addenda Gold and Silver Mining Company.

The Commissioner erred in holding that the patent should be held for cancellation on the ground that the Department of the Interior did not have sufficient equity powers to waive a technical violation of the law, where the applicant was not to blame for such violation.

The Commissioner erred in holding the application for a patent for cancellation under the facts recited in his decision of January 9th, 1896.

It is in evidence and not denied that prior to 1886 said company had expended $100,000 on said claim; that said Curtis was the superintend ent of the company during 1885, in their mining operations thereon; that from 1886 to 1892, inclusive, he was the company's agent to see that the annual assessment work was done thereon, the company having no other agent in the neighborhood; that the company sent him $100 each year during that period to pay for such work, and that he regularly filed each year during that period his affidavit with the district mining recorder, that he had expended that amount in assessment work upon the claim in behalf of said company.