By your letter of August 15, 1889, the case was remanded "for a hearing for the purpose of ascertaining the qualifications of said Scott at the time she made the said entry." Ou November 9, 1889, a hearing was had in pursuance of this order, before the local officers, and on February 14, 1890, they decided that

It is evident that she (plaintiff) being a married woman was not authorized to make homestead entry and was not a qualified homesteader.

The plaintiff appealed to your office, and by letter of July 22, 1890, you reversed the ruling of the local officers, whereupon the defendant prosecutes this appeal, alleging as error practically that your decision is against the law and the evidence.

In passing on this question you say:

In view of the facts and circumstances of this particular case, I hold that inasmuch as plaintiff's application to enter as a widow, was made in good faith at a time when she honestly believed she was a widow, and since this office had already held (letter "H" June 1, 1889), that the land was subject to entry and that she has the better right to the same, by reason of her prior settlement, residence, and improvements, and since it conclusively appears, from the record, that she was a deserted wife, at the time she offere! her application, her entry, which was allowed to be made of record, by said letter “H” of June 1, 1889, will not be disturbed, notwithstanding the fact that her husband returned subsequent to her application to enter, and is now living with her.

At

The evidence in this case discloses the fact that the contestant was married to Jeptha Scott in 1869; that in 1871 her husband deserted her; that about two months after he left she saw him for about twenty minutes, but never again did she see or hear from him until early in 1888. In 1881 one of her neighbors read to her from a newspaper a notice of the death of J. Scott, caused by being run over by a freight wagon in Arizona. From some circumstances detailed in the testimony she had good reason to believe that this J. Scott was her husband. the time of her marriage she was a widow with five small children. By this last marriage she had two more, so that at the time her husband deserted her she had to care for and support seven helpless children. About the first of February, 1883, she settled upon the land in controversy, and by her own hands and with the assistance of her children she erected a small house, corn-crib and hen house; cleared of brush and cactus from six to ten acres of the ground; had an irrigating ditch and reservoir of sufficient capacity to water the ground, and, at the time the defendant made his homestead entry, had a fruit bearing orchard of eighty trees, consisting of apple, apricot and fig. All her witnesses place the value of her improvements at the time of the hearing at $1,000. She resided upon the land continuously during all these years entirely dependent on her own labor and that of her children for her support.

There is not the slightest intimation in the evidence to show that Mrs. Scott did not honestly believe herself to be a widow during all this time.

She attempted to make a homestead entry of the land March 26, 1883, but says she was informed that the land was not then subject to entry, but as soon as it was decided they would let her know and she could perfect her entry. She seems to have done everything in good faith to save her rights, and felt perfectly secure until the defendant came forward with the relinquishment of the Southern Pacific Railroad Company and attempted to get possession. It therefore follows that there was no fraud on the part of Scott's entry in its inception.

In the case of Maria Good (5 L. D., 196), it is said:

it seems clear that when once legal qualification to make homestead entry is established, and the land applied for is subject to such eatry, then the only remaining questions for the land department to consider are those relative to residence, cultivation and alienation.

There can be no question about the legal qualification of Mrs. Scott at the time she made her application. While as a matter of fact she was not a widow, as she supposed, yet it is true that she was a deserted wife, and the head of a family, and as such was a qualified homesteader. Kamanski v. Riggs (9 L. D., 186). The relinquishment by the railroad company of its claim upon this land made it subject to disposal by the government, if it were not otherwise subject to such disposition.

The only remaining question to be determined is, whether or not the appearance of her husband at this late date disqualified her from perfecting her title initiated when she was a qualified pre-emptor. I can see no reason why the rule announced in the case of Maria Good (supra) should not be applied to this case, especially in the absence of any fraud or collusion between the husband and wife. It has been repeatedly held in our departmental decisions that wives, who have become such subsequent to their homestead entries if they comply with the law in the matter of residence, may make final proof and secure the title. If this contestant, who is over fifty years old, who has struggled for so many years to improve her land and support her family, now decides, in her declining years to receive the father of her children and again take up the marital relation, and live with her re-united family in the home her industry has prepared, I do not believe she should be held to have forfeited her claim to this land.

Your judgment is therefore affirmed.

PRIVATE CLAIM-DEPARTMENTAL JURISDICTION—SURVEY.

BACA FLOAT No. 3 (ON REVIEW.)

A statutory provision directing the surveyor-general to survey and locate a selection made under the act of June 21, 1860 does not warrant the conclusion that the surveyor-general's action in such matter is not subject to the supervisory direction of the Commissioner of the General Land Office, and the Secretary of the Interior.

When the Territory of New Mexico was divided, and that portion included in the limits of Arizona was created a separate surveying district, the duties theretofore devolving upon the surveyor-general of New Mexico, in relation to lands within the new district, fell upon the surveyor-general of that district.

Secretary Noble to the Commissioner of the General Land Office, Novem ber 28, 1891.

I have considered the motion for review of departmental decision of June 24, 1891 (12 L. D., 676), in the matter of the application for a survey of the lands selected in satisfaction of Baca Float, No. 3.

This motion presents no new question but goes over the same ground that was necessarily gone over in the consideration of the appeal upon which the former decision was rendered. It is urged that under the provisions of the act of June 21, 1860 (12 Stat., 72), confirming, this claim no officer except the surveyor-general of New Mexico, has any function in this matter and that his duties are merely ministerial and perfunctory. The Secretary of the Interior is charged with the supervision of public business relating to the public lands (Revised Statutes, section 441), and the Commissioner of the General Land Office is charged with the performance, under the direction of the Secretary of the Interior, of "all executive duties appertaining to the surveying and sale of the public lands of the United States or in anywise respecting such public lands, and, also such as relate to private claims of land." It is true that Congress has the power to impose upon some other officer the duties thus prescribed by these sections as pertaining to the office of Secretary of the Interior, and Commissioner of the General Land Office, but in the absence of express provisions to that effect no intention to relieve said officers of any duties within the purview of said sections, will be presumed. It must, in the case now under consideration, devolve upon some officer to determine whether the lauds selected are of the character prescribed by the said act of June 21, 1860, and I find nothing to indicate any intention to substitute, for the officer charged generally with the performance of such duties, some one else. The mere fact that it is declared the duty of the surveyor-general of New Mexico to survey and locate the lands selected does not justify the conclusion that the Secretary of the Interior and Commissioner of the General Land Office were "carefully eliminated from the transaction" or even that the said surveyor-general's acts in the premises were not subject to the supervisory direction of the Commissioner of the General Land

Office and the Secretary of the Interior. The objection to the jurisdiction can not be sustained.

In support of the objection to that part of the decision which directs a hearing to be had before the surveyor-general of Arizona, it is urged (1) That the surveyor-general of Arizona has no authority in the premises, the surveyor-general of "New Mexico" being commanded by the act of Congress to make the survey, (2) That a survey is necessary to any intelligent inquiry as to the character of the lands in said selection and (3) That none of the persons named by the Commissioner as desiring an early settlement of the question, is a proper party to the case.

The first grounds of objection can not, I think, be seriously urged. When the Territory of New Mexico was divided and that portion included in the limits of Arizona was created a separate surveying dis. trict, the duties theretofore devolving upon the surveyor-general of New Mexico, in relation to lands within such new district fell upon the surveyor-general of that district. This proposition is so plain that it seems unnecessary to discuss it further. The objection that an intelligent inquiry as to the character of the lands selected can not be prosecuted without a survey and marking of the out-boundaries is met and obviated by the direction to the surveyor-general contained in the Commissioner's order for a hearing in the following words:

If for the purpose of such hearing and in order to clearly ascertain the exact location of alleged mines with reference to the boundaries of said location it shall seem to you advisable or necessary to survey the out-boundaries of said claim, or any part thereof, you will suspend the hearing above provided for and notify the said Robinson and other grant claimants that they may make a deposit of the funds necessary to pay for such survey and for the office work necessary thereon, after you shall have made an estimate of the same. You will then cause the same to be made in the same manner as surveys of private claims are made, etc.

The third specific objection made to this part of said departmental decision can not be sustained. This hearing is to determine whether the land selected by the grant claimants is of the character contemplated by the act under which it was selected and to the end that such investigation shall be full and complete, all parties asserting a claim to the land should be given an opportunity to be heard. This is all that has been done and I find no good reason for modifying the instructions in that particular.

Objection is made to assumptions of fact made in said decision, the following being quoted as one, "There seems to be no question that the land embraced in this location is mineral land." This sentence taken alone might be open to the objection that it prejudges the very question for the determination of which a hearing is ordered. Taking the whole decision, however, it is plain that it was intended to say that such a prima facie case had been made as justified further investigation, and it will be thus construed.

Objection is made to the statement that the burden of proof to show that said lands are non-mineral in character, is upon the claimants 2565-VOL 13-40

under said grant, but this objection can not in my opinion be sustained. The act of Congress authorized the selection of lands of a certain character and when the claimants presented a selection thereunder it cer tainly devolved upon them to affirmatively show the lands were of the character prescribed. By presenting a selection under said law the claimants affirmed its non-mineral character and they must stand ready to support such allegation. I do not find that the instructions given are inconsistent with the laws of evidence and do not therefore find any necessity for modifying the decision complained of in that respect. It is said that the inference is inevitable from the language of both the Commissioner and the Secretary, and therefore tantamount to an instruction that if any mineral land shall be found within the boundaries of the selection made then the whole selection must be rejected. This assertion is directly denied by the following quoted from said departmental decision:

If upon the hearing the proof should show that the land embraced in the location is mineral, the mineral land should be segregated from the non-mineral land by survey, and the grant claimants will be entitled to such part of said location as may be shown to be non-mineral.

It is further argued in support of this motion that only those lands known at the date of the selection to be mineral lands should be segre gated from the tract thus selected, and, that the discovery of minerals, in any part of said lands, made after the date of selection can not affect the right and title of these claimants to said lands. The decision rendered in your office limited the inquiry to the two dates, that of selec tion in 1863, and of the amendment of such selection in 1866. While it is not said in so many words in the departmental decision that such instructions were in error, yet it was in effect so said. The following language was used:

The act of June 21, 1860, authorized the heirs of Baca "to select instead of the land claimed by them an equal quantity of vacant land not mineral,” and the burden of proof is upon the claimants under said grant to show that the lands so selected or located are non-mineral lands, as no title to mineral lands can vest in them under said act and the Department may at any time before the title passes from the gov ernment require the claimant to show that the land is not mineral, although the character of the land may not have been known to claimants at the date of selection or location.

This can be construed only to mean that the inquiry should extend to the present known character of the land as well as to its character as known at the date of selection. This holding is in entire accord with the principle announced in the case of Central Pacific R. R. Co. v. Valentine (11 L. D., 238). It was there said:

No date is fixed in the grant at which the mineral character of the lands must be known, in order to bring them within the exception. If in fact mineral, they are within the exception, according to the plain terms thereof, whether their mineral character is known at the time of definite location or approval of survey, or not.