lands, by prescribing the class of lands that may be selected excludes unsurveyed land from the list. In section 19 of said act of February 22, 1889, supra, is found the following language:

That all lands granted in quantity or as indemnity by this act shall be selected, under the direction of the Secretary of the Interior, from the surveyed, unreserved, and unappropriated public lands of the United States within the limits of the respective States entitled thereto.

It will be admitted that the right of the State whether under the grants of quantity or under the indemnity provisions of said act, does not attach to any particular tract of land until selection thereof. But under the provisions of the section of law above quoted, no selection can be made except of surveyed lands, hence no right in the State, under this grant, can attach to any particular tract of land until after its survey. This Department would not be justified in disregarding this plain provision of the law that selections under this grant must be made of surveyed lands even though the effect of the enforcement of that provision would operate to the injury of the State to the extent claimed.

The Commissioner of the General Land Office to whom your communication was referred after making this presentation of the matter says:

Without discussing the legal aspects of the case, it seems clear that some means should be adopted to protect the right of the State to lands that have been surveyed upon an application by the State authorities, and to prevent indiscriminate settlement thereon by parties who, perhaps, may make such settlement with the sole view of being bought off by the State; and I think that any action that would secure that result without interference with the rights of actual bona fide settlers, would have the sanction of the law,

and recommends that the following course be adopted:

That an order be made by the Department that the Commissioner, on his approving any contract for the survey of the public lands for which application is made by the State authorities, instruct the district land officers for the district in which the land lies, in any case in which he shall deem it proper, within his discretion, to cause a notice to be published for thirty days in some newspaper published and circulating in the vicinity of the land, and to be posted in the district land office for the same period, advising all persons interested, of the facts, and that no claims initiated by settlement or otherwise, after the expiration of such thirty days' notice and before the expiration of ninety days from the date of filing the plats of survey in the district land office, adverse to the State's right of selection of the lands, will be recognized as valid; such order to be thereafter enforced as a proper measure within the jurisdiction of the Department for the execution of the statutes making the grants, and giving a preference to the State's claim thereunder in the execution of surveys.

This amounts to a recommendation that all lands which your board may apply to have surveyed be withdrawn from settlement or appropri ation until you have been given an opportunity after survey, to select the I do not find any authority in the granting act for such action. On the contrary, such a course would operate to virtually annul the

same.

provisions of said act herein before quoted. It would, in effect, be to allow selections of unsurveyed lands in satisfaction of said grant.

I do not see my way clear to grant the relief asked or to adopt the recommendation made by the Commissioner of the General Land Office.

ADJOINING FARM HOMESTEAD-RESIDENCE-COMMUTATION.

JOHN W. FARRILL.

Residence on the original farm, prior to adjoining farm entry, cannot be computed as forming a part of the period of residence required under the latter entry. The act of May 14, 1880, does not waive any requirement as to the period of residence under an adjoining farm entry, but allows credit for residence on the land embraced therein prior to the entry thereof.

An adjoining farm entry may be commuted, on showing due compliance with law. The case of Patrick Lynch, 7 L. D., 33, overruled.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, December 21, 1891.

On February 15, 1889, John W. Farrill made adjoining farm homestead entry of the N. of the SE. of Sec. 17, T. 9 S., R. 11 E., Huntsville, Alabama, under section 2289 of the Revised Statutes, and on June 23, 1890, he made final proof upon said entry, which was rejected by the local officers, for the reason that said proof was made prematurely.

Upon appeal, you affirmed the decision of the local officers, under the ruling in the case of Thatcher v. Bernhard, 10 L. D., 485, holding that residence on the original farm prior to entry can not be computed as part of the five years required by law, but that a residence must be maintained after entry for the length of time prescribed for ordinary homestead entries before final proof can be made.

From this decision the claimant appeals, and insists upon his right to offer final proof, upon the ground that his residence upon the original farm has been continuous for more than five years, resting his claim upon the authority of the decision of the Department in the case of Patrick Lynch, 7 L. D., 33, holding that in cases of adjoining farm entries, credit for residence on the original tract may be allowed under the act of May 14, 1880.

Prior to the decision of the Department in the case of Patrick Lynch, supra, it was the rule of the land office that the rights of an adjoining farm entry attach only after entry, when the land entered with the original farm is treated as entirety, and that residence and settlement upon an original farm constitute no residence upon an adjoining tract prior to entry, as settlement can not be made at the same time upon two distinct tracts of land. William C. Field, 1 L. D., 68.

This principle was adhered to in the decision of the Department in the case of Hall v. Dearth, 5 L. D., 172, in which it was held that the act of May 14, 1880, was not intended to waive any of the requirements of the homestead law as to residence, but only to give credit for resi

dence prior to entry. But in cases of adjoining farm entries, such residence must have been actually upon the land entered, because it was distinctly held that a claimant residing upon an original farm could not claim a preferred right to make adjoining farm entry of an adjoining tract by virtue of cultivation and improvement of such tract prior to his application to enter the same, for the reason that residence upon the original farm is not residence upon the adjoining tract, until the entry has been made.

The ruling in the case of Patrick Lynch, supra, seems to be in conflict with this view, but upon an examination of that case it will be seen that claimant in his final proof showed that he occupied, cultivated and improved the land for more than nine years, and there is nothing in the decision showing that such occupancy was not in fact upon the land sought to be entered. Besides, it appears that the reason why Lynch did not make an application to enter the land at an earlier date was because it was within the limits of the withdrawal for the benefit of the Texas Pacific Railway Company, and such lands were formerly held not to be subject to entry, but it was afterwards decided that tracts occupied by settlers at date of withdrawal were not affected thereby. This may have controlled the decision of the Secretary in allowing the final proof of Lynch before the expiration of the five years required by the homestead law, but, if it was intended to hold that he was entitled to credit for residence on the original tract prior to entry, as constituting actual residence on the adjoining land, it was contrary to the rul ings of the Department, which were not in terms overruled.

In the case of Thatcher v. Bernhard, 10 L. D., 485, the Department re affirmed the doctrine announced in the cases of W. C. Field and Hall v. Dearth, supra, holding that settlement upon the original farm can not be considered settlement upon the adjoining land, until after entry, and that when an adjoining farm entry is made, "the land entered constitutes, with the original farm, one tract, or an entirety, and settlement and residence on the original farm is after such entry imputed to and becomes in contemplation of law settlement and residence on the land entered, just as settlement and residence on one forty of a homestead tract is settlement and residence on the whole," and that residence upon the land after entry must be for the full period required by the homestead law, except where the residence has actually been on the land embraced in the entry, or where the entryman is entitled to credit for military or naval service during the war of the rebellion.

This is, in my judgment, in accordance with the letter and spirit of the act, which is not enlarged or modified by the act of May 14, 1880, except as herein stated, and the case of Patrick Lynch, so far as it conflicts with this decision, is hereby overruled.

In his appeal to your office, the claimant requests that if he is not allowed to make final proof under section 2291 of the Revised Statutes, he may be allowed to commute the same under section 2301.

I see no reason why he may not be allowed to commute said entry

under section 2301, if he can show the requisite proof of continuous residence and cultivation of the tracts, and that he has in all other respects complied with the law.

Your decision is affirmed.

PLACER PATENT-CONFLICTING LODE CLAIM.

JUNIATA Lode.

Where a patented placer is found to be in conflict with a lode claim, and the facts are such as to warrant judicial proceedings for the vacation of the patent as to the land in conflict, the patentee may, by mesne conveyance, surrender the title of such land to the government, and so vest the Department with jurisdiction to again dispose of the land.

Secretary Noble to the Commissioner of the General Land Office, December 24, 1891.

I am in receipt of your letter of November 11, 1891, referring to de mental letter of October 20, 1891, in the matter of the Juniata Lode claim, and asking for additional instructions.

It appears that on May 12, 1880, a patent was duly issued to Thomas H. Fuller for a placer claim on a certain tract of land in the Leadville land district, Colorado.

On October 17, 1889, Lewis T. Brownell, as the owner of the Juniata Lode claim, applied for a patent on said lode, and his application was rejected by the register and receiver because of conflict with the patented placer claim of Fuller.

The following diagram will show the conflict between said claims:

Placer

Lode claim.

Claim.

On an appeal being taken from the finding of the local land officers by the lade claimant, you affirmed their decision and held that you had

no jurisdiction to issue a patent on the lode claim because of the outstanding patent to the placer claim.

From your judgment the lode claimant appealed to this Department, and before the appeal was considered here the owner of the placer claim conveyed to the lode claimant by deed that part of the land in conflict, and in turn the lode claimant deeded the same to the United States. A protest was also filed against the issuance of a patent to the lode claimant by the Dunkin Mining Company, who claimed to be the owner of a part of the tract embraced in the lode claim.

On October 20, 1891, the Department returned the case to you stating, substantially, that since that part of the lode claim in conflict had been deeded back to the United States it would seem that you would have jurisdiction to examine the application and to allow the entry of the lode claim, provided no other reasons exist calling for its rejection. The protest of the Dunkin Mining Company was also transmitted to you, in order that it might be passed upon by you in connection with said application.

Your letter of November 11, 1891, suggests that departmental letter of October 20, 1891, "establishes a new rule of practice for this office, in that it permits the issuance of a second patent for a portion of the ground embraced in a former patent outstanding and intact."

You further state that,

If the decision shall be adhered to as being the law, it will open wide the gates to applications for patent for lode claims situated within patented placers, townsites, homesteads, pre-emptions and other patented claims.

In answer to your communication I have to state that the townsite, homestead, pre-emption and placer mining laws all provide that entries made under them shall not include any known lodes or veius, and it is the practice of the Department, when a showing is made that the mines were known at the time entries were made and patents issued, to recommend suits in the proper courts to set aside said patents, or such parts thereof as conflict with said mines.-Cameron Lode, 13 L. D., 369; Pacific Slope Lode, 12 L. D., 686; Plymouth Lode, 12 L. D., 513; Pike's Peak, 10 L. D., 200. And in such cases the courts will, on proper proof that lodes existed, known to be valuable for their product at and before entries were made and patents issued, declare vacated and set aside the parts of said entries and patents in conflict with said known lodes. If, as seen, the courts will vacate that part of the placer claim in conflict with the Juniata lode, and dispossess the placer proprietor thereof, why may he not, to save litigation, expense, and vexation, deed the property over to the party, who might, if he saw fit, in the name and by consent of the United States, finally recover the same. No objec tion ought to be imposed by the government against a party doing that which it is to the interest of the government to have him do.

The patent issued to the placer proprietors carried with it the title to all the surface of the ground described therein, unless it may be found