Nation as herein provided, by proclamation, to open to settlement any or all of the lands not allotted or reserved, in the manner provided in section thirteen of the act of Congress approved March second eighteen hundred and eighty-nine.

In the case of Walton et al. v. Monahan (on review, 29 L. D., 108, 112), it is held that

A fair construction of the language quoted is, that it was intended thereby to make applicable the provisions of said section 13, in the disposal of lands in the Cherokee Outlet, not only as to the manner of opening said land to settlement and entry, but also as to the qualifications of claimants.

Said section 13 of the act of March 2, 1889 (25 Stat., 1005), providesThat any person who having attempted to, but for any cause, failed to secure a title in fee to a homestead under existing law, or who made entry under what is known as the commuted provision of the homestead law, shall be qualified to make a homestead entry upon said lands.

In the case of James W. Lowry (26 L. D., 448), it is held that the words used in said statute to prescribe the qualifications of entrymen have reference to the status of the applicant at the time of making his application and not at the time of the passage of the act; hence the question in this case is: What was the status of the applicant on March 28, 1898, the date of his application? Was he a person who had attempted to, but for any cause failed to acquire title in fee to a homestead under a law existing at the time of the passage of the act of March 2, 1889?

The said entry, No. 21180, was made under a law existing before, and at the time of, the passage of the act of March 2, 1889. The applicant swears in his application, in substance, that he did all he could to make a homestead on the land. He exhausted his means and saw starvation awaiting him if he remained there, and was forced to abandon the land to get a living. If this be true, he had certainly attempted and failed to acquire a homestead under a law existing at the time of the passage of the act of March 2, 1899, and is therefore, so far as concerns said previous entry, qualified to make entry for the land applied for. Your said decision of July 30, 1898, is therefore reversed and the application will be allowed.

RAILROAD GRANT-CLASSIFICATION OF LANDS.

BEAUDETTE v. NORTHERN PACIFIC R. R. Co.

Land more valuable for the deposit of sandstone therein than for agricultural purposes is mineral in character, and should be so classified under the act of February 26, 1895.

Acting Secretary Ryan to the Commissioner of the General Land Office, (W. V.D.) October 18, 1899. (G. B. G.)

It appears from the duplicate report of the commissioners appointed for the Helena, Montana, land district, under the act of February 26, 1895 (28 Stat., 683), entitled, "An act to provide for the examination

and classification of certain mineral lands in the States of Montana and Idaho," dated January 3, 1898, and now on file in the mineral division of your office, that section 23, township 5 north, range 11 west, in said land district, was examined and classified by said commissioners as non-mineral.

February 1, 1898, Ernest Beaudette filed with the register and receiver of said land office a verified protest against the acceptance of said classification, alleging that he is one of the owners of Beaudette Sandstone Placer mining claim, which claim was located on the 25th day of February, 1897, and covers the N. of the NE. of the NW. of Sec. 23, Tp. 5 N., R. 11 W., in Deerlodge county, State of Montana, and that the certificates of said placer location was duly filed in the office of the county clerk and recorder of said county, as provided by law, that the land covered by said mineral location contains a valuable deposit of sandstone suitable for building purposes, that it is rocky, hilly, and unfit for agricultural purposes, and that it is more valuable for mining than for agricultural purposes.

A hearing was ordered on this protest, which was held April 22, 1898, the Northern Pacific Railroad Company appearing by its attorney thereat and defending the classification made by said commissioners. May 9, 1898, the local officers held that the land in controversy is mineral, and recommended that the non-mineral classification be set aside. August 1, 1898, your office, upon the appeal of said company, concurred in said recommendation and dismissed the appeal, and the company has appealed to the department.

This protest, hearing and appeal are authorized by section 5 of the act of February 26, 1895, supra, and the instructions of the department of April 13, 1895 (20 L. D., 350), issued to facilitate the administration of that act.

The evidence shows that the land in controversy was located as a placer mine as alleged in the protest; that it contains a very large deposit of sandstone suitable for building purposes; that a quarry has been opened thereon and is being operated; that large quantities of dimension stone are being shipped therefrom to the adjacent city of Anaconda, and that it has been used in the erection of ten or twelve buildings in that place; that this stone will sustain a pressure of 3,125 pounds to the square inch, and that it is worth between twenty-five and thirty-five cents per cubic foot as it comes from the quarry; that the land is quite valuable on account of this deposit of sandstone, and that it is of little or no value for agricultural purposes.

In the case of Hayden r. Jamison (on review), 26 L. D., 373, it was held that sandstone is a mineral substance, and that land more valuable on account of the sandstone it contains than for agricultural purposes is mineral in character and subject to disposition under the mineral laws.

It apearing that the land in controversy is of vastly more value on account of the sandstone it contains, than for agricultural purposes,

it results that the classification thereof made by said commissioners is wrong, that the land although part of an odd numbered section within the primary limits of the grant to the Northern Pacific Railroad Company did not pass under said grant, and that said classification cannot be upheld, nor the contention of said company that it is not mineral land within the meaning of the excepting clause of said grant be sustained. Pacific Coast Marble Company v. Northern Pacific R. R. Co. et al. (25 L. D., 233); Alldritt v. Northern Pacific R. R. Co. (Id., 349.) The decision appealed from is affirmed.

MINING CLAIM-APPLICATION-NOTICE-ADJOINING CLAIM.
LIZZIE ELLISON ET AL.

It is not necessary to give the names of all adjoining and conflicting claims in the notice of an application for patent under section 2325 R. S., but only such as are shown in the plat of survey.

Acting Secretary Ryan to the Commissioner of the General Land Office, (W. V. D.) October 18, 1899.

(G. B. G.)

Lizzie Ellison et al., claimants for the Rustler lode mining claim, have filed a motion for review of departmental decision of March 25, 1899 (unreported), which affirmed the decision of your office of October 19, 1898, rejecting their adverse claim for part of the premises covered by the application of M. W. Davis et al. for patent for the Mountain Mayd and Gold Reef lode claims, situated in the Salt Lake City land district, Utah.

The motion asks, among other things that have already received the careful consideration of the department, that the case be reviewed on the ground, as alleged, that the pretended notice of the application for patent made by the said M. W. Davis et al. is fatally defective, because the same failed to conform to the requirements and rules of the United States land office, in that

said pretended notice of application for patent does not contain any mention of the Rustler lode mining claim, which is in conflict with it, being overlapped by the pretended official survey of the Mountain Mayd lode mining claim for a patent.

The notice of the intention of M. W. Davis et al. to apply for a patent for the Mountain Mayd and Gold Reef lode claims is in substantial compliance with the provisions of section 2325 of the Revised Statutes and in substantial conformity to regulation 44 thereunder, approved December 15, 1897, and in force at the date the notice was given, except that if, as alleged, the Rustler claim is in conflict with the official survey of the Mountain Mayd claim, then said regulation was not fully complied with, in that the notice does not give the names of all adjoining or conflicting claims, the Rustler claim not being mentioned in said notice. This regulation is not, however, now in force, it having been superseded by regulation 44 of the regulations approved

June 24, 1899 (28 L. D., 594, 601), which regulation does not provide that the notice of an application for patent shall give the names of all adjoining and conflicting claims, but that such notice shall give "the names of adjoining and conflicting claims as shown by the plat of survey." It is, therefore, not now necessary to give the names of all adjoining and conflicting claims in the notice of an application for patent under section 2325 of the Revised Statutes, but only such as are shown in the plat of survey.

The plat of survey of the Mountain Mayd and Gold Reef claims was not forwarded by the local officers in this case; but from informal inquiry in your office it is ascertained that at the date of said survey the Rustler was not a surveyed claim. The Manual of Instructions for the survey of the mineral lands of the United States, issued by your office October 25, 1895, directs that the United States surveyors-general and United States deputy mineral surveyors in making surveys of mining, claims will not show conflicts with unsurveyed claims, unless the same are to be excluded. It may be safely assumed that the manual was followed in the survey of the Mountain Mayd and Gold Reef claims, and that the plat of said survey does not show the Rustler as an adjoining or conflicting claim. But even if it does show such conflict, the Rustler being an unsurveyed claim such showing is not required by the letter of section 2325 of the Revised Statutes, nor is it necessary to a proper administration of said section, and being not required and unnecessary, the failure of the applicants for patent to give in the notice of their application the name of the Rustler as an adjoining claim was not such error as authorizes an order of republication. The motion is denied.

COLEMAN ET AL. . MCKENZIE ET AL.

Motion for review of departmental decision of May 4, 1899, 28 L. D., 348, denied by Acting Secretary Ryan, October 18, 1899.

INDIAN LANDS-MISTAKE IN ALLOTMENT-INDIAN OCCUPANCY.

LEE v. THOMAS.

The right of an Indian to the lands actually surveyed for, and allotted to him, but omitted from the trust patent by mistake, is not defeated by the erroneous inclusion of such lands in the schedule of lands opened to settlement by procla mation; and subsequent adverse claimants for said lands are bound to take notice of the occupancy and possession of the allottee.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V.D.) October 29, 1899. (C. W. P.)

The land involved in this case is lots 5, 6, 11, 12, and 13 of Sec. 9, T. 34 N., R. 3 W., Lewiston land district, Idaho, and was formerly embraced in the Nez Perce Indian reservation in Idaho.

The general allotment act of February 8, 1887 (24 Stat., 388–389), provides that at any time after lands have been allotted to all the Indians of any tribe as therein provided, or sooner, if, in the opinion of the President, it shall be for the best interests of said tribe, it shall be lawful for the Secretary of the Interior to negotiate with such Indian tribe for the purchase and release by said tribe of such portions of its reservation not allotted as such tribe shall, from time to time, consent to sell, and it is provided that the lands so bought shall be disposed of to actual settlers, etc.

Under the provisions of this act an agreement, dated May 1, 1893, was made with the Nez Perce Indians in Idaho for the sale of their unallotted lands within the reservation, with certain exceptions. This agreement was ratified by the act of Congress approved Angust 15, 1894 (28 Stat., 286, 326), and the lands were declared to be open to settlement on November 18, 1895, by the proclamation of the President, dated November 8, 1895.

On December 6, 1895, Daniel Lee made homestead entry of lots 27 and 28 of Sec. 4 and lots 5, 6, 11, 12, 13 and 14 of Sec. 9, T. 34 N., R. 3 W. The Commissioner of Indian Affairs, having informed the Secretary of the Interior that complaints were being made to Indian Agent Fisher, of the Nez Perce Agency, Idaho, by Nez Perce Indians, that their lands were being encroached upon by other allottees, or by adjoining settlers, and that the lands conveyed in their trust patents did not correspond with the original tracts which they had selected at the time allotments were being made, the Secretary of the Interior directed that in each instance where the lands which said Indians intended to enter have been entered by white settlers a hearing should be ordered between the Indians claiming the land and the white entrymen. In pursuance of this direction, on May 10, 1897, a hearing was ordered by your office between said Daniel Lee and Ignace Eneas Thomas, who some years before Lee's entry received a trust patent for lots 1, 2 and 3 of Sec. 10, and lot 3 of Sec. 11, T. 34 N., R. 1 W., Lewiston land district, Idaho, and claimed that lots 5, 6, 11, 12 and 13 of Sec. 9, T. 34 N., R. 3 W., embraced in Lee's homestead entry, had been surveyed and located as his allotment, but by some mistake lots 1, 2, 3, of Sec. 10, and lot 3 of Sec. 11, T. 34 N., R. 1 W., had been substituted.

A hearing was had before the local officers, who decided in favor of Lee. Thomas appealed. Your office reversed the decision of the local officers. Lee appeals to the Department.

The schedule of lands declared to be open to settlement under the homestead law by the proclamation of the President, dated November 8, 1895, showed that the land in controversy was part of the public domain and open to settlement and homestead entry.

At the hearing, Edson D. Briggs testified that as United States deputy surveyer he surveyed the land here in dispute as an allotment for Ignace Eneas Thomas, who is a minor and the son of Mission Thomas, a Nez Perce Indian, as directed by Special Allotting Agent