NE. of Sec. 35, T. 28 N., R. 3 E., Perry land district, Oklahoma Ter14 ritory, and allowing his entry of the N. of said NE. to stand, subject to his compliance with the requirements of the homestead law, and also awarding the S. of the NE. 4 of said section to May.

The motion is based upon the same grounds which were urged by the attorney for May, in his elaborate brief in the case, when it was before the Department upon the merits.

The record shows that Coleman made homestead entry of the NE. of said Sec. 35, September 28, 1893; that on July 5, 1894, May filed an affidavit of contest, charging that Coleman on May 15, 1877,

filed his homestead entry for the S. SW. of Sec. 22, Tp. 14 S., range 1 E., in Dickinson Co., Kansas, submitted final proof on the same October 6, 1881, and patent was issued in April, 1882; the tract contained eighty acres.

This affidavit was corroborated by one J. T. Howard, who on May 23, 1895, withdrew his corroboration. On the motion of Coleman, May was required to amend his affidavit of contest, and on June 26, 1895, he filed an amended affidavit, in which he charged that Coleman has "totally exhausted his homestead right and has had the benefit of the homestead law, and is thereby disqualified from acquiring title to the tract of land herein involved."

In these affidavits there is no charge of fraud or of wilful and deliberate perjury, but the charge is simply that the homestead entry made by Coleman September 28, 1893, is illegal by reason of his having exhausted his homestead right by his homestead entry of May 15, 1877.

The case was set for hearing on March 27, 1896, and on motion of Coleman the hearing was postponed to April 3, 1896, when May appeared in person and by attorney, but Coleman failed to appear, and the case was heard upon the evidence presented by May.

The local officers held that the contestant had sustained the charges made in his contest affidavit, and had proven to their satisfaction that Coleman's entry was fraudulent and voidable in its inception and should be canceled, and they so recommended. Coleman appealed.

The evidence showed that Coleman, on May 15, 1877, made homestead entry of the S. 3 of the SW. 4 of Sec. 22, T. 14 S., R. 1 E., Salina land district, Kansas, upon which he made final proof, and that final certificate issued October 6, 1881, and patent April 29, 1882; that he did not commute said entry, but made proof of his compliance with the homestead law as to residence and cultivation for a period of five years, less the term of his military service. There was also in evidence a certified copy of the homestead affidavit of Coleman for the land in controversy, which contains the averment that he had not "heretofore made entry under the homestead laws, or filed a soldier's declaratory statement."

The contestant testified that Coleman told him that he had previous to his entry of the land in controversy made a homestead entry in Kansas, and that he had commuted it. He also offered in evidence

the deposition of R. L. Cormack, who testified that Coleman lived on the land he entered in Kansas, about three years. This was all the testimony in the case.

Your office did not decide directly upon the contest, but Coleman having filed in your office a relinquishment of the S. of said NE. 4, accompanied with the affidavit, which is set out, in substance, in the decision complained of, your office held that Coleman was clearly entitled under section 6 of the act of March 2, 1889 (25 Stat., 856), to make an additional homestead entry of eighty acres, accepted his relinquishment, canceled his entry as to the S. of the said NE. 1, held his entry of the N. of said NE. intact, and awarded the S. of the said NE. to the contestant. The decision complained of affirmed your decision.

The record shows that, at the time Coleman entered the land in controversy he was entitled, under the sixth section of the act of March 2, 1889 (25 Stat., 854), to make an additional entry of eighty acres of land. He made entry of one hundred and sixty acres under the belief, as he swears in the affidavit which accompanies his relinquishment, that he was entitled to make entry for that quantity of land.

In the case of Legan . Thomas (4 L. D., 441), the Department held (syllabus) that an entry covering more than one hundred and sixty acres will be canceled to the extent of the illegal excess, but that prior to such cancellation the entire tract is preserved from all other appropriation; and in Henry C. Tingley's case, 8 L. D., 205, it was held that a homestead entry, embracing tracts in two or more sections, must approximate one hundred and sixty acres, as nearly as practicable, without requiring a division of the smallest legal subdivision included therein; and that a homestead entry allowed in violation of this rule is subject to attack for such illegality, and a preference right to enter the lands finally excluded therefrom may be awarded to the adverse claimant; and that the entryman should be allowed to select and relinquish one of the smallest legal subdivisions.

It is clear that Coleman's entry was only illegal as to the excess, and that he should be allowed to select the eighty acres on which his improvements are situated and relinquish the other eighty.

In regard to the objections that May, after he instituted his contest, had a vested right to the land in controversy, if he successfully prosecuted his contest, of which he would be unlawfully deprived if Coleman were allowed to relinquish his claim to eighty acres of the land involved and retain the other eighty, it is not necessary to add any thing to what is said in the decision complained of.

The motion for review is therefore denied.

MINING CLAIM-ANNUAL EXPENDITURE-FINAL CERTIFICATE.

TRIPP ET AL. v. DUNPHY.

The expense of keeping a watchman and custodian in charge of a mine that is not being worked, may be properly charged as an item of annual expenditure. The final certificate on a mineral entry should issue in the name of the heirs of the applicant, where it is known at the date of its issuance that the applicant died prior to the submission of final proof and making payment for the land.

Acting Secretary Ryan to the Commissioner of the General Land Office, (W. V. D.) January 11, 1899. (C. J. W.)

The controversy in the above stated case involves mineral entry No. 458, for lot No. 37, sections 25 and 26, township 9 south, range 21 east, M. D. M., Stockton land district, California, and known as the Second Volcano Quartz Mine. It appears that said claim was located by Mack Culler and Sarah J. Beck, on November 21, 1882, and that William Dunphy derived his possessory title from said locators, through a regular chain of conveyances, set forth in the abstract of title filed with the record, and that on March 12, 1892, said William Dunphy filed his application for patent therefor.

Notice of the application was published and posted from March 19, to May 21, 1892, during which period no adverse claim or protest was filed.

About the 17th of September, 1892, William Dunphy died, and on March 6, 1896, Carmen U. Dunphy, executrix of the estate of said William Dunphy, made mineral entry No. 458 for said claim, but subsequently, by direction of your office, the name of William Dunphy was substituted for that of Carmen U. Dunphy, executrix, in the final certificate.

January 1, 1896, George A. Tripp and W. P. Thompson located the Tripp Quartz mining claim, embracing the same land and lode as the Second Volcano Quartz mine, and their location notice was recorded by the recorder of Madera county, on February 17, 1896.

On March 6, 1896, they filed their protest, verified by the affidavit of Tripp alone, and on April 20, thereafter, filed the corroborative affidavits of H. E. Bigelow, O. H. Cole, John Brown, and W. H. Henderson. The protest charged, in substance, the abandonment of the mine by defendant and a failure to perform assessment work for the year ending December 31, 1895, which it was insisted operated as a forfeiture of the possessory title and left said mine legally subject to relocation. On June 15, 1896, your office directed the local officers to allow a hearing for the purpose of ascertaining whether or not the claimants of the Second Volcano Quartz mine performed the annual assessment work therefor for the year ending December 31, 1895. Such hearing occurred, at which both parties submitted testimony, and appears to have closed on September 19, 1896.

On December 28, 1896, the local officers rendered a joint decision, in which they found that the owners of said Second Volcano Quartz mine had expended upon it for the year 1895 more than was required by the statute, and recommended that the protest be dismissed and that patent issue in the name of William Dunphy. The protestants appealed from this decision, and on May 4, 1897, your office affirmed the local officers, and dismissed the protest. The protestants have appealed to the Department, upon the following grounds:

1st. That the preponderance of the evidence does establish that the said mining claim was abandoned and forfeited by the said applicant prior to the location by protestants.

2nd. That the protestants were in the quiet, peaceable, adverse and exclusive possession of said mining claim at the time entry was made by Carmen U. Dunphy. 3d. That the evidence shows that protestants' location was legally and regularly made in compliance with all the laws, rules and customs governing the same. 4th. That the Honorable Commissioner erred in holding that protestants were obliged to show that the contestee abandoned and forfeited the said mine.

5th. The Honorable Commissioner erred in not requiring the contestee to show that she had complied with the law, relative to holding and possessing a mining claim on public land.

6th. That the Honorable Commissioner erred in holding it necessary to sustain the protest that protestants were required to show the validity of their own location and also to negative the claim of contestee.

7th. That the evidence fails to show that the contestee did or caused to have done the one hundred dollars worth of work on said mine for the year 1895, as required by law.

The vital issue in the case made by the respective contentions of the parties, is whether or not the amount of assessment work required by law had been done upon the mine by or for the defendant for the year 1895.

There is a great deal of irrelevant testimony in the record, notice of which is not deemed necessary. The proof shows clearly that E. E. Calhoun, who made the affidavit showing the assessment work for the year 1895, and who was dead at the time of the hearing, was the agent of defendant, and the watchman and keeper of the mine for its owner, and understood the duties and responsibilities of such position. The protestants, who subsequently made a relocation of this claim, knew of its occupancy by Calhoun for the defendant, and Tripp made application for Calhoun's place a short time before making relocation. That he had full notice of defendant's claim is abundantly shown, and not denied. There was no abandonment of it by the owner, and if his right to it was lost, it could in this case only be because of a failure to have the assessment work performed for the year 1895.

In reference to this matter, the proof shows that defendant paid in cash for labor on the mine in 1895 eighty-eight dollars, for which receipts are exhibited, and that other payments were made, not in actual cash, but its equivalent, which, when added to the cash payments, raise the expenditures on assessment work for 1895 to much more than one hundred dollars. It is objected to these items of expenditure that they

can not properly be charged to the account of assessment work. It appears from the evidence that the agent, Calhoun, was to have, as compensation for looking after the mine, the use of a dwelling house, consisting of several rooms, near by, but not on the property, which belonged to the estate of the mine owner; that Calhoun was postmaster, and not only resided in the building, but used one room as a post-office, and the building was shown to be worth four or five dollars per month for rent. It further appears that nothing on this account was embraced in Calhoun's receipt, which was for cash paid for specified work. It is denied by protestants that the expense of keeping a watchman over the mine can be properly charged as an item of assessment expenditure. If this sort of service may be properly classed as labor on the mine, it would then be within the express terms of section 2324 of the Revised Statutes.

That one who guards and cares for the works, machinery, and buildings of a developed mine, which has been worked, but in which mining operations are temporarily suspended, performs an important and necessary service can not be doubted.

In the case of Lockhart et al. v. Rollins, 21 Pacific Reporter, 413, it was held by the supreme court of Idaho (syllabus) that:

Where mining works are idle, time and labor of a watchman and custodian expended on the property in taking care of it is labor done on the claim.

This seems to be a reasonable interpretation of the law, and under it the value of the use of the building furnished Calhoun could be properly allowed as a credit on his assessment account. This item alone added to the eighty-eight dollars paid in cash, would make the expenditures on the mine for the year 1895 over one hundred dollars.

There is another item, connected with the agreement made with one Lee, a Chinaman, who removed the old mill building and stacked the lumber, which the defendant is fairly entitled to have added to the amount paid on assessment work. It seems that Lee was to have ten dollars, which was paid him in cash, and certain quartz and tailings from the mill, which appears to have yielded several dollars.

It is manifest that the estate of defendant paid out much more than a hundred dollars for the year 1895, in the effort to preserve the hoisting works and other valuable appendages of the mine, and the steps taken indicate not an intention to abandon the claim, but rather the

reverse.

While there is some conflict in the testimony, the decided weight of it is in favor of defendant, who appears to have paid five thousand dollars for his possessory title, and to have maintained his claim by a substantial compliance with the law as to annual work.

The material facts elicited at the hearing are sufficiently set forth in your office decision.

If the testimony of George C. Crane, the bookkeeper for the Dunphy estate, who acted under instructions from those interested in it,