This motion was duly considered by the Secretary, in the light of all that could be presented pro and con.

At the rehearing, counsel introduced in evidence various affidavits to prove the alleged fraud in said agreements, and also ex parte affidavits were taken against Ayers upon the proceeding to disbar him for his conduct in connection with the case, and as appears by the evidence, they were taken without notice to Ayers, and without opportunity to cross-examine. All these matters being before the Department, the Secretary held, April 17, 1884 (45 L. and R., 130) that "the decision of February 21st 1884 in this case is reaffirmed." This decision upholding the agreement which was clearly made to avoid litigation was cited and followed in Daniel v. Danforth (5 L. D., 118).

On March 5, 1885, the said Ayers gave notice of his intention to make final proof on his filing on April 17, 1885. Buell appeared and protested. On October 19, 1885, the local officers, evidently regarding the matter as settled, dismissed the protest. Buell appealed, and your office, on November 13, 1885, reversed the decision of the local office and ordered a hearing, which was duly had, and on January 27, 1888, the register and receiver recommended the rejection of Ayers' proof, the cancellation of his filing and that Buell be allowed to make entry for the E. of the quarter section, retaining his entry on the W.. Ayers died after the testimony was taken, but before the decision, leaving a widow (Orpha L. Aye.s) and two minor children. She was duly appointed administratrix, and in behalf of the heirs, appealed to your office, and on June 4, 1890, you reversed said action of the local officers and held that the administratarix should be allowed to make cash entry for said E. in the name of the heirs at law of James L. Ayers, deceased. From this ruling and decision Buell appealed.

From the record it appears that Buell, in the first instance, filed an affidavit of contest against a timber culture entry of one Connelly for the SW. 4, Sec. 5, without accompanying it with an application to make entry for the land, which was not allowable under the regulations then in force. The entry was, by the local officers, recommended for cancellation upon this contest, and the case went to your office on an appeal. While this was pending, Connelly's relinquishment was placed on record, and the entry canceled, and at the end of thirty days, without notice having been given Buell of the cancellation, notwithstanding this, Ayers was permitted to file a declaratory statement for the entire quarter section. He went upon the land and began erecting a house. Buell learning of this applied to make timber culture entry for the tract, and delivered his entry papers to the local officers. He claimed a preference right of entry by reason of his contest. While he claimed this preference right, Ayers claimed that the thirty days had elapsed, and he says he claimed that Buell's contest was void because of failure to apply to make entry for the land upon the initiation of it. The local officers, it appears, offered to place Buell's entry

on file subject to Ayers' filing, but at this point, the parties came to the agreement, by which Ayers consented to withdraw his papers and restore the tract to the public domain, and then file for the east half, and allow Buell to file for the west half. This contract was actually executed in the interest of peace, and it has been upheld by the Department as heretofore stated, and your office did not err in holding that the matter was res adjudicata. I may say that the record and testimony shows that the parties were acting upon that agreement and making improvements upon their respective tracts when your office, on December 1, 1882, ca nceled the filing of Ayers and the entry of Buell, made under this agreement, and re-instated Connelly's entry which had been canceled upon relinquishment.

On December 29, 1882, your office letter "C" dismissed Buell's contest because he had failed to apply to enter the land, and on January 6, 1883, Ayers filed affidavit of contest against said entry as re-instated.

I mention these matters because it is so earnestly insisted that the agreement was a fraud upon Buell, while this action of your office places Ayers on the vantage ground, but on a motion for review by Buell, all this was reversed, Ayers' contest properly initiated was dismissed, and Buell's that had been properly dismissed was re-instated against an entry that had been canceled on relinquishment and re-instated without an application being made therefor.

On June 6, 1883, your office canceled the Connelly entry and awarded Buell the preference right of entry for the entire quarter section. This was the confused condition of the case when the Secretary relegated the parties to their rights under the contract.

Ayers moved from the east half of the tract on to the west half when your office canceled Buell's entry and dismissed his contest, and he (Ayers) had begun a contest against the Connelly entry, and when your office dismissed his (Ayers) contest and re-instated Buell's, he (Ayers) moved back to the east half. The protest by Buell alleged that Ayers had not complied with the pre-emption law, had abandoned the land, etc., and it set up the alleged fraud and misrepresentation in said agreement, and your office in directing a hearing ordered the local officers to rehear, try and determine the question of the fraud and misrepresentation in the agreement between the parties. This last direction as to the contract was clearly erroneous. It, as I have said, had been tried and determined. The question of compliance with the pre-emption law, charging that Ayers had moved off of the land and abandoned it had not been before the local office, your office or the Department, and was a proper matter for a hearing.

The testimony at the trial was drawn out to an unreasonable length, the military history of Ayers, as well as his "life and adventures" were of no importance except so far as it went to affect his credibility as a wit ness, and counsel in arguing the case in your office and to the Department have gone outside of the record and dragged in matters nowhere

appearing in the evidence, and which tends only to encumber the record without serving any good purpose. The only matter properly before the local office, your office, or this Department is the simple question of compliance with the pre-emption law under his filing. The fact that Ayers moved upon the west half of the tract when Buell's entry was canceled, and he thought he would get both, by his contest, was not an abandonment, for he maintained his settlement on the whole quarter section, the greater including the less.

The local officers find that Ayers had complied with the pre-emption law as regards settlement and residence, you so find, and it is not seriously controverted. His proof will, therefore, be accepted, the protest dismissed, and your decision affirmed.

TOWNSITE PATENT-KNOWN LODE CLAIM.

CAMERON LODE.

Although a townsite patent conveys no title to a known lode or mining claim, it can only be invalidated by judicial proceedings, and with the view to such action a hearing may be properly ordered, on due showing of the existence of such lode or claim within a patented townsite.

Acting Secretary Chandler to the Commissioner of the General Land Office, October 7, 1891.

I have considered the appeal of Catharine Cameron from the decision of your office of July 8, 1890, dismissing her application for a hearing, and holding her mineral entry for cancellation, Central City land district, Colorado.

The record shows that the White Sand lode claim, now called the Cameron lode claim, was located December 19, 1867, and on the same day was duly recorded in the records of Gilpin county, Colorado, that patent was applied for August 19, 1887, and entry made December 5, 1887, by Catharine Cameron.

It appears that this claim lies within the limits of the townsite of said Central City.

The townsite entries were made May 16, 1873, and May 27, 1874, and patent issued therefor July 10, 1876.

On July 3, 1889, Catharine Cameron made affidavit, duly corroborated, alleging the conflict with said townsite, and that there was within the limits of said claim "a well-defined vein or lode of quartz or other rock in place, bearing gold and silver," and that said claim was "known long prior to the cash entry of the townsite of Central City made May 16, 1873," and asking "that a hearing be ordered to determine the character of the land, priority of claim, and existence of a vein or lode therein;" said affidavit was accompanied with a certified copy of the record of the original location of said White Sand lode claim.

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The affidavits were transmitted to your office by the local officers by letter dated November 27, 1889.

By your office letter of July 8, 1890, you decided that

The title to the land having passed from the government when the patent for the townsite was issued, it is no longer within the jurisdiction of this office, and the claimant must seek for a remedy, if there is one, in the courts. The application for a hearing is therefore dismissed, and mineral entry 3297, held for cancellation.

An appeal now brings the case before me.

On September 17, 1890, Catherine Cameron submitted an affidavit, duly corroborated, "that said claim and tract has been worked, more or less, from its discovery and location until now, and mined for ore and mineral, valuable for the gold it contained," and she asks that the proper proceedings be instituted to render in-operative so much of the townsite patent of said Central City, as is in conflict with and embraced in said Cameron lode claim, and that her said mineral entry may not be canceled, but may be allowed to stand suspended pending the suit or proceeding to be instituted in pursuance of her application, if granted, alleging error in your dismissal of said application for a hearing, and in holding said entry for cancellation.

By section 2392 of the Revised Statutes, in the chapter regulating the reservation and sale of townsites, it is provided that

No title shall be acquired, under the forgeoing provisions of this chapter, to any mine of gold, silver, cinnabar, or copper; or to any valid mining-claim or possession held under existing laws.

It follows that the patent issued to Central City, conveyed no title to any such "mine," "mining-claim," or "possession," as the Cameron lode is indicated, by the evidence submitted, to have been at the date of said patent.

As the Cameron lode claim was located prior to the passage of the act of May 10, 1872, (17 Stat., 91), and as no adverse claim existed at that date, the owners were entitled by the third section of that act thereafter, to "have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth," so long as they complied with the laws. As the affidavits submitted show that there was no abandonment or forfeiture of the Cameron lode, but that it was worked from the time of its discovery, and that its existence was wellknown long prior to the entry of the townsite, it appears that the owner of this lode is entitled to the benefit of the above-cited provision of law. Inasmuch as a patent has issued to the townsite of Central City, it can only be invalidated by proper proceedings in court. Moore v. Robbins (96 U. S., 530); Pacific Slope Lode (12 L. D., 686).

In the latter case it was held that where it appears that a townsite patent has issued for land embracing a known lode claim, based on a record location made prior to the townsite entry, judicial proceedings should be instituted looking toward the vacation of said patent, so far

as in conflict with said mining claim, and the subsequent issuance of proper title to the mineral claimant. In that case, however, your office had ordered a hearing to ascertain whether the grounds embraced in the mineral claim were known to be valuable for minerals at the date of the townsite entry, or prior thereto.

In the Plymouth Lode case, (12 L. D., 513), where the evidence was submitted upon affidavits, as in the present case, this department directed a similar hearing.

I am of the opinion that there was error in your decision in dismissing said application for a hearing, and in ordering said entry for cancellation.

You are therefore directed to order a hearing, after notice thereof has been served on all parties concerned, at which the proprietor of the Cameron lode will have an opportunity to prove the allegations made in her appeal and affidavits, in order that it may be determined whether or not the evidence submitted will warrant the institution of a suit to vacate any part of said patent.

After this hearing has been held, the local officers will transmit the papers to your office, together with their opinion on the evidence submitted, after which you will consider the same for the purpose of determining whether or not you will recommend the institution of a suit to vacate so much of said patent as includes the Cameron lode.

After such examination you will transmit the record with your opinion thereon, to this Department. Said mineral entry will be suspended pending further proceedings.

Your judgment is modified accordingly.

PRACTICE-NOTICE-HOMESTEAD CONTEST.

YORK v. WILKINS.

In contest proceedings against the entry of a deceased homesteader, the heirs of the entryman are entitled to notice.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, October 3, 1891.

I have considered the case of Sumner York v. John Wilkins, deceased, on appeal of the former from your decision dismissing his contest against the homestead entry of the latter for S., SE. and S. 1, SW. 1, Sec. 9, T. 27 N., R. 6 E., Seattle land district, Washington.

The record shows that John Wilkins made homestead entry for this land July 27, 1886, and died intestate on July 1, 1888.

On January 2, 1889, one Otto Erickson filed affidavit of contest against said entry, which was, on the following day, dismissed because it was insufficient in law, and on January 4, York filed contest affidavit against the entry, charging abandonment for more than six months;