compliance with the legal requirements of the desert land law, as amended, a patent shall issue to the entryman or his assigns. In other words, that for each "entry" (which the Department holds refers uniformly to the original entry--Fred W. Kimble, 20 L. D., 67), but one patent shall issue, and while Congress by the act of March 3, 1891, supra, recognized, and in effect approved of the right of assignment, it is plain that it contemplated only the assignment of such an entry in its entirety. If it were conceded, for the purpose of argument though not admitting, that any broader or more liberal interpretation in this respect might be given to the desert land law, as amended by the act of March 3. 1891, supra, yet certain it is that even for the purpose of a good administration of the same, your office was entirely warranted in placing such a construction thereon, which is accordingly fully approved by the Department.

The equitable features of the case at bar, however, are entitled to some consideration. In this respect it appears that while the assignment in question was promptly transmitted by the local officers to your office, yet no action was taken thereon as to the sufficiency of the same until almost sixteen months after date of execution. In the meantime Prior, believing himself to be the lawful assignee of the tract in question, for which he had given a valuable consideration, had fenced the land, thus improving the same as required by law, annual proof of which was submitted at the close of the year, and which was not rejected by your office until more than six months thereafter because of the assignment, then for the first time considered.

In view of the above facts, the Department is of the opinion that final action on the annual proof of Prior and the assignment in question should be delayed for a reasonable time, which your office may indicate, in order to afford him an opportunity to secure from Compton an assignment or relinquishment of the remaining forty acre subdivision of his entry. In this connection, it also appears, so far as disclosed by the record, that the only annual proof for the first year offered in support of this entry was that made by Prior, which applies only to the east half of said tract (the SE. of the NW. 4), no proof having been offered for the west half of the entry (the SW. of the NW. 4). You will therefore direct the local officers to call upon Compton to show cause within thirty days from notice hereof why that part of his entry last above described should not be canceled for failure to submit in support thereof the annual proof required by the provisions of the desert land law.

In the event of the cancellation of this part of Compton's entry for failure to submit such proof, or upon a relinquishment executed by him, the assignment to Prior would be for the whole of the remainder of the entry, and hence could be properly recognized as an assignmert of the original desert land entry. If there be no such cancella

tion of the remaining part of this entry as herein indicated, however, or Prior fail to secure an assignment of the same from Compton within the time suggested, his annual proof will stand rejected in conformity with the decision of your office appealed from. The case is accordingly remanded.

MINERAL LAND-CLASSIFICATION-PROTEST-NOTICE.

NORTHERN PACIFIC RAILWAY COMPANY.

Publication of notice of a hearing ordered on a protest against the mineral classification of land under the act of February 26, 1895, must be made in a newspaper published nearest the land; and the register is clothed with discretionary power to designate the newspaper in which the publication shall be made, but this power is subject to review by the Commission of the General Land Office and the Secretary of the Interior, and when found to have been abused by the designation of a newspaper not published nearest the land a hearing had in pursuance of such notice will be set aside.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.

May 10, 1904.

(A. C. C.)

In the months of October, November and December, 1900, and January, February and March, 1901, the commissioners appointed 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," filed, in accordance with the terms of said act, in the Coeur d'Alene, Idaho, land office, six separate reports, in which they classified as mineral in character the land therein described, situated in Shoshone county, Idaho, and over which the public survey had not been extended.

Notice of the classification seems to have been published for the statutory period in a newspaper published at the capital city of Idaho; also in three newspapers published in Shoshone county, Idaho, viz., The Wardner News, The Wallace Press, and The Mullan Mirror. May 29, July 26, September 13, and September 29, 1902, the Northern Pacific Railway Company filed its verified protests against the acceptance of said classification, in which protests it was alleged, among other things, in substance and effect, that the lands embraced in said reports were non-mineral in character. By stipulation signed by the attorney for the Northern Pacific Railway Company and the United States attorney for the State of Idaho, who at the request of the Secretary of the Interior. had been directed by the AttorneyGeneral to appear for and represent the government, it was agreed "that the hearing in the above protests may be set for the same date, and that all of said protests shall be heard as one." Whereupon a hearing was ordered to be had November 20, 1902, before the local

officers at the Coeur d'Alene, Idaho, land office. Notice of the hearing was published only in the St. Maries Courier, a semi-weekly newspaper printed and published in the town of St. Maries, Kootenai county, Idaho, which newspaper, presumably, was designated for the purpose by the register of the local land office. By another stipulation, signed by the parties to the former one, the hearing was continued until December 4, 1902, at which time said parties appeared, whereupon the protests in respect to a part of the lands involved were withdrawn and the hearing was had as to the remaining lands, but only the railway company submitted evidence as to their character.

January 27, 1903, the local officers, from the evidence submitted. found such remaining land to be non-mineral in character. Subsequently the record in the case was forwarded to your office.

July 2, 1903, A. G. Kerns, of Wallace, Idaho, as attorney for Adam O'Donnell, W. S. Sims, and John H. Hanson, filed in your office a petition, accompanied by affidavits to support the same, in which it was alleged, among other things, in substance and effect, that prior to December, 1902, petitioners and others were and now are the owners of lode mining claims located within the mining district wherein the lands so found to be non-mineral are situated; that the greater part of the lands found to be non-mineral in character are in fact of known mineral character; that petitioners had no notice of the filing of the protests, or of the hearing ordered and had thereon, and did not know the result of the hearing until June, 1903. They therefore asked that a hearing be had upon the petition.

August 8, 1903, your office held, among other things, that due notice of the hearing had been given, and that the evidence submitted thereat warranted the finding of the local officers thereon. Whereupon said finding was affirmed in respect to "all odd numbered sections within the area involved;" and the classification made by the commissioners as to all lands against which the protests of the company were formally withdrawn," was allowed to stand. The petitioners filed an appeal, due notice of which was given the railway company, and alleged therein, among other things, in substance and effect. that the notice of the hearing was only published in the St. Maries Courier, which had a circulation of less than one hundred copies per week . . . and no circulation whatever throughout the district“ where the lands involved are situated.

October 8, 1903, in a communication addressed to your office, the United States attorney for Idaho, recommended "that action be taken looking to the reopening of the case and the submitting of additional proof," for the reason that a large number of citizens of Idaho appear to be interested in mineral claims located upon the lands which were involved in the hearing; that they had no previous notice of the hearing; and that they desired to submit evidence to show that the lands found

to be non-mineral in character are in fact mineral lands. October 24, 1903, in reply to said communication, your office advised said United States attorney that

if any of the parties in interest will submit affidavits relative to the character of the lands in question, specifying dates of their discoveries and locations, kind of minera!, estimated value thereof, whether same are situate upon what will be odd numbered sections of the townships when surveyed, and any other facts pertinent to the issue involved, such allegations will be given careful consideration by this office, and if deemed sufficient to warrant such action they will be afforded an opportunity to present testimony in support of their allegations, as the classification of lands under the act of February 26, 1895, does not become final until such classification is approved by the Secretary of the Interior.

October 13, 1903, the Bald Mountain Mining and Milling Company, a corporation, submitted an affidavit of its president, to the effect that said company was the owner of five valid lode mining claims, a millsite, and a tunnel site, situated in the St. Regis mining district, Shoshone county, Idaho, and has expended in developing the same the sum of fourteen thousand dollars.

By letter of October 31, 1903, your office advised the president of said company that his affidavit did not state whether the mining claims of his company were "upon odd or even numbered sections;" that the decision of your office of August 8, 1903, related only to odd numbered sections; that the classification referred to does not become final until approved by the Secretary of the Interior; and that if he will submit affidavits showing whether or not the mining locations of his company were situated upon what will be odd numbered sections when the land shall have been surveyed, same will receive due consideration."

November 2, 1903, your office forwarded all the papers in the case to the Department.

March 26, 1904, Talfourd P. Linn and Dan Wendel, by resident counsel, filed a petition in the case, which was sworn to by Linn, and which was accompanied by the affidavit of Wendel. It was alleged therein, among other things, in substance and effect, that December 30, 1902, they made entry for the Copper Kopje and sixteen other lode mining claims (survey No. 1757, made in June, 1902), located upon unsurveyed lands within the Mt. Regis mining district, Shoshone county, Idaho, and which were involved in the said protests filed by the railway company, and the hearing subsequently had thereon; that they had had no notice of the hearing prior thereto; that the notice thereof was not published in a newspaper in the county of Shoshone, Idaho, where the lands embraced in the classification referred to are situated; and that the St. Maries Courier

in which the notice of said hearing was published was not at the time of such publication a newspaper of general circulation . . . . in the county of Shoshone.

Those who have appeared in opposition to the railway company, attack the validity of the hearing in question, and the proceedings had thereunder, upon several alleged grounds, only one of which it is necessary to consider, viz.: Was notice of the hearing published as required?

Section five of the act in question provides, among other things, in substance and effect, that hearings ordered upon protests filed against the acceptance of a classification "shall be conducted" as "contests involving the mineral or nonmineral character of land in other cases."

By letter of instructions of August 10, 1895 (21 L. D., 108), in respect to said act of February 26, 1895, it is provided, in part, that—

In all cases where the land has been classified as mineral and protests alleging it to be non-mineral are filed, service of notice by publication, at the expense of the protestant, as in ordinary hearings, must be had.

Section 2335 of the Revised Statutes provides, among other things, in substance and effect, that where, in cases of contests as to the mineral or agricultural character of land," publication of notice is necessary, it shall be by publication in a newspaper, to be designated by the register of the land-office as published nearest to the location of such land.”

The purpose of requiring notice by publication is mainly to diffuse information and notice respecting the hearing in the vicinity of the lands involved and among those whose residence or presence in that locality bespeak their interest" therein "or their knowledge thereof," in order that all parties concerned in the lands may have an opportunity to assert and protect such interests at the hearing. See Tough Nut, etc. (32 L. D., 359, 360). In view of the provisions of said seetion 2335, this purpose is only accomplished by publishing the notice in a newspaper published nearest to the land.

While the statute vests in the register discretionary power to determine under the supervision of the Commissioner of the General Land Office, and the Secretary of the Interior, the newspaper that is published nearest to the land, this discretion is subject to review, and if abused, to correction by the officers last named.

Was the notice of the hearing published in a newspaper nearest to the lands? And if not, did the register abuse the discretion vested in him by the statute? As has been seen, this notice was published in the St. Maries Courier, a newspaper published at the town of St. Maries, while the notice of the classification was published in the Wardner News, a newspaper published at the town of Wardner; the Wallace Press, a newspaper published at the town of Wallace; and the Mullan Mirror, published at the town of Mullan. As shown upon the map of the State of Idaho, issued by your office in 1899, the town of St. Maries, is about twenty-five miles, in a direct line, from the west boundary line of the lands involved; the town of Wardner about