You will require the selector to elect within sixty days from notice hereof whether he will abide by his selection as made, subject to the said withdrawal of the land, to file a new selection in lieu thereof, or to appeal from this requirement; in default of which the selection will be rejected.

The appeal insists that the original non-mineral affidavit was sufficient to prove the non-saline character of the land, inasmuch as it is stated that there were not within the limits of the land any placer, cement, gravel, "or other valuable mineral deposits," and that the land was "essentially non-mineral land.”

This contention can not be sustained. While in the generic sense salt is properly classed as a mineral, it is not one of those minerals included or intended by the term mineral in the general laws relating to mineral lands, and salines were not, prior to the act of January 31, 1901 (31 Stat., 745), subject to entry under the statutes authorizing disposal of mineral lands. Southwestern Mining Company (14 L. D., 597); Salt Bluff Placer (7 L. D.,.549).

The general policy of all land legislation, until the act of 1901, supra, has been to reserve all salt deposits from disposal. Salt has always been regarded specifically, by itself, and apart from other minerals.

In the act of 1901, permitting entry of salt deposits under the mining laws, it is still treated as a specific class by itself, as the act provides, "that the same person shall not locate or enter more than one claim hereunder," a condition not imposed upon entry of other minerals.

The general non-mineral affidavit was framed under the general mineral laws and long prior to the act of 1901, and has reference to those minerals referred to and intended by the general mining laws. There having been no affidavit referring to or negativing existence of salt specifically, the circular of November 14, 1901 (31 L. D., 130), was not complied with. The case is therefore within the principle of the decision in Zachary T. Hedges (32 L. D., 520), and is thereby controlled.

Your office decision is affirmed.

HOMESTEAD CONTEST-ACT OF JUNE 16, 1898-PRACTICE.
MCDONALD . OVELMAN.

In all contests against homestead entries initiated subsequent to the act of June 16, 1898, on the ground of abandonment, it must be alleged in the affidavit of contest that the settler's absence from the land is not due to his employment in the army, navy, or marine corps of the United States.

A contestee who appears specially at the hearing for the purpose of filing a motion to dismiss the contest on the ground that the affidavit of contest does not state facts sufficient to warrant cancellation of the entry, and excepts to the action of the local officers in allowing the contestant to amend the affidavit, does not, by subsequently participating in the hearing, waive or forfeit the benefit of said motion and exception.

Acting Secretary Ryan to the Commissioner of the General Land Office, (F. L. C.) July 18, 1904.

(A. S. T.)

On November 7, 1899, Charles A. Ovelman made homestead entry for the NE. of Sec. 24, T. 25 N., R. 22 W., Kalispell land district, Montana.

On December 31, 1900, Alexander McDonald filed an affidavit of contest against said entry, charging that "Charles A. Ovelman has wholly abandoned said entry for more than six months last past."

Notice was issued and personally served on the defendant, fixing the hearing on February 9, 1901, at which time the contestant appeared, and the defendant appeared specially, for the purpose of filing a motion to dismiss the contest on the ground that the affidavit of contest did not state facts sufficient to warrant the cancellation of the entry, and especially on the ground that said affidavit did not allege that the defendant's absence from the land was not due to his employment in the army or navy of the United States.

Thereupon the contestant asked leave to amend his affidavit of contest, and he was allowed to amend the same so as to charge that the defendant had not resided on the land for more than six months next prior to the initiation of the contest, but the local officers declined to allow him to amend said affidavit so as to embrace the charge of nonmilitary service. The defendant excepted to this action of the local officers. The contestant filed an amended affidavit of contest, whereupon, without passing upon the defendant's motion to dismiss, the local officers proceeded with the hearing, and both parties offered testimony. The local officers found in favor of the contestant and recommended the cancellation of the entry. The defendant appealed to your office, insisting that the local officers erred in not sustaining his motion to dismiss the contest.

On September 12, 1903, your office rendered a decision affirming the action of the local officers and holding the entry for cancellation, and from that decision the defendant has appealed to this Department, claiming that your office erred in not sustaining his said motion to dismiss the contest.

The act of June 16, 1898 (30 Stat., 473), requires that in all contests of homestead entries thereafter initiated, on the ground of abandonment, it shall be alleged in the affidavit of contest that the settler's absence from the land is not due to his employment in the army or navy of the United States.

In the case of Burns v. Lander (29 L. D., 484), it was held that:

The statute is mandatory, and compliance therewith can not be dispensed with by the land department, nor can non-compliance therewith be cured by amendment after the service of process in a contest to which the statute applies and in which no appearance is made by the defendant.

The statute in question clearly applies to this case, and compliance with its requirements can not be dispensed with, nor can non-compliance therewith be cured by amendment after the service of process, the defendant having only appeared specially to object to the sufficiency of the affidavit, because of the omission therefrom of the required. allegation.

The local officers should have sustained the motion of the defendant and dismissed the contest. When they failed to act upon the motion and allowed the contestant to file an amended affidavit, the defendant reserved an exception, and he relied upon the same before your office, and still does so in his appeal to this Department.

Your office held that the affidavit was defective because of the omission therefrom of the required allegation, but that inasmuch as the defendant by his own testimony showed that the entry in question was made after his discharge from the army, and that his absence from the land was not due to service in the army or navy, he thereby waived the objection previously made to the sufficiency of the affidavit.

This Department does not concur in that ruling. The defendant having appeared specially and objected to the sufficiency of the affidavit, and having excepted to the action of the local officers in permitting the contestant to file an amended affidavit, did not waive or forfeit the benefit of said motion and exception by subsequently participating in the hearing.

Your said decision is therefore reversed and said contest is dismissed.

BLACK LEAD LODE EXTENSION.

Motion for review of departmental decision of May 5, 1904, 32 L. D., 595, denied by Acting Secretary Ryan, July 18, 1904.

INDIAN LANDS-ROSEBUD RESERVATION-NON-MINERAL AFFIDAVIT.

Register and Receiver,

INSTRUCTIONS.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, WASHINGTON, D. C., July 19, 1904.

Chamberlain, South Dakota.

SIRS: All persons who apply to enter lands within the former Rosebud reservation, under numbers assigned to them pursuant to the proclamation of May 13, 1904, will be excused from filing the usual non-mineral affidavit with their applications to enter, but will be required to file that affidavit afterwards, before final certificate issues.

You are therefore instructed to not require that affidavit from such applicants at the time they apply to enter.

Very respectfully,

Approved:

THOS. RYAN, Acting Secretary.

W. A. RICHARDS,

Commissioner.

OKLAHOMA LANDS-KIOWA, COMANCHE AND APACHE LANDS-ACT OF JUNE 6, 1900.

WINBORN v. BELL.

The provision in the circular of July 5, 1901, that any person who "after June 6, 1900, abandoned or relinquished" his homestead entry, should not be qualified to make entry of lands ceded by the Kiowa, Comanche and Apache Indians and opened to disposition by the act of June 6, 1900, and the proclamation of July 4, 1901, issued thereunder, was intended to apply only to the disposition of conflicting rights arising during the sixty-day period, and where a contest against one who relinquished his entry subsequently to June 6, 1900, was not initiated until after the expiration of that period, the contest must be disposed of without reference to said circular.

In determining the qualifications of an applicant to make homestead entry under the provisions of the act of June 6, 1900, the status of the applicant at the date of his application must control, and if he has at such time attempted to but for any cause failed to secure title in fee to a homestead under existing law, he is qualified to make entry under the provisions of said act.

Acting Secretary Ryan to the Commissioner of the General Land Office, (F. L. C.) July 20, 1904. (G. B. G.)

This is the appeal of Charlie Bell from your office decision of October 13, 1903, sustaining the contest of Charles A. Winborn against the homestead entry of Bell, allowed September 14, 1901, for the N. of the NE. 4 of Sec. 1, T. 1 N., R. 15 W., Lawton land district, Oklahoma. The land in controversy is part of the ceded Kiowa, Comanche and Apache lands, and was subject to disposition under the provisions of the act of June 6, 1900 (31 Stat., 672, 680), and the proclamation of the President issued thereunder on the 4th day of July, 1901 (31 L. D.,

1).

The contest rests mainly upon the ground, which is confessed, that Bell had on February 4, 1899, made an entry under the homestead law for one hundred and sixty acres of land and relinquished the same May 21, 1901, and it is contended that by reason of this fact he was disqualified to make the entry in question because of a provision of a circular of the land department, issued July 5, 1901 (31 L. D., 9), which declared, among other things, that "any person who has an existing homestead entry, or who, after June 6, 1900, abandoned or relinquished such an entry," shall not be qualified to make homestead entry of these ceded lands.

The circular in question was issued merely for the information of

those intending to register and participate in the drawing provided for under the proclamation governing the disposal of these lands, and while it specified who were not qualified to register and enter, it is clear that, aside from whatever effect might be given to it in disposing of conflicting rights arising during the sixty day period, it was not intended to, nor can it be held to have in any wise modified the provisions of law governing the disposal of these lands after the expiration of such period. After the expiration of that period the remaining lands were subject to disposition under the general provisions of the homestead law without reference to the circular, and inasmuch as this contest was not initiated until after the expiration of such period, and was initiated at a time when said land might have been entered by Bell, if he was then qualified, under such general provisions, it is believed that it must be determined without reference to the circular. In this view, it will not be necessary to consider whether the circular contravened a provision of the act, supra providing for the disposition of these lands:

That any person who having attempted to but for any cause failed to secure title in fee to a homestead under existing laws, or who made entry under what is known as the commuted provision of the homestead law, shall be qualified to make a homestead entry upon said lands.

Bell is entitled to the benefits of this provision. In the case of James W. Lowry (26 L. D., 448), the Department in construing a substantially similar provision in section 13 of the act of March 2, 1889 (25 Stat., 980, 1005), said:

In determining the qualifications of an applicant, the status of the applicant at the date of his application must control, and if he has at such time attempted to but for any cause failed to secure title in fee to a homestead under existing law . . . . he is qualified to make entry under the provisions of said section.

This case is conclusive of the question here presented. Bell had at the date of his application to make the entry in question attempted to and failed to secure title in fee to a homestead under existing law. He was therefore a qualified homesteader, and a contestant will not be heard to say that he comes within the inhibition of a circular applicable only to a time and condition which did not exist at date of contest. The decision appealed from is reversed, and Bell's entry will be held intact to await proof of his compliance with law.

SOLDIERS' HOMESTEAD-SECTION 2307, REVISED STATUTES-RESIDENCE. INSTRUCTIONS.

Where an entry made under section 2307 of the Revised Statutes was perfected prior to the decision of the Department in the Anna Bowes case, under departmental rulings holding that actual residence upon the land included in such entry is unnecessary, such entry, if otherwise regular and valid, will be passed to patent without regard to said decision and the instructions issued thereunder.