laws have any application to these unallotted lands to be opened under the President's proclamation. Without at this time determining the question suggested, it is sufficient to say that no mention thereof is necessary in the preparation of the proclamation to be issued under the act of March 3, 1905, which is to prescribe "the manner in which these lands may be settled upon, occupied, and entered by persons entitled to make entry thereof " under the scheme contemplated, which scheme would not permit of the separation of the mineral from the agricultural lands, if such a division were deemed necessary and advisable, nor could it be required of a claimant to any of these lands under the mining laws that he make entry within the sixty-day period in which this scheme is to have operation under the limitation of the statute.

MINING CLAIM-PATENT PROCEEDINGS-AMENDED LOCATION.

THE GILSON ASPHALTUM Co.

Where a mining claim has been officially surveyed and the survey becomes the basis of patent proceedings which are carried to entry, an amended location embracing additional ground, even though preceding the entry, can not be recognized as the subject of further patent proceedings to include the additional tract as part of the original claim.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.)

June 15, 1905.

(F. H. B.)

This is an appeal by The Gilson Asphaltum Company from your office decision of February 11, 1904, holding for cancellation its entry (No. 120, Ute series) for what is designated as the Black Diamond No. 2 lode mining claim, survey No. 14,666, Glenwood Springs, Colorado, land district. The final certificate of entry issued December 30, 1901, and, first particularly describing the surveyed claim as "extending 1337.35 feet in length along said Black Diamond No. 2" vein or lode, expressly excepts and excludes that portion thereof in conflict with the Black Prince lode claim "and also that portion in conflict with survey No. 14,151, Black Diamond No. 2 Lode," leaving an entered area of 0.277 acres. The lastmentioned exclusion is of special interest under the facts of the case. which are as follows:

On January 1, 1897, one Belle Luxen made location of a lode mining claim which was given the name of Black Diamond No. 2. By intermediate conveyances title subsequently vested in Francis P. McManus. In the meantime (in June, 1898) there was filed in the above-mentioned local land office an application for patent to a cer

tain placer claim, embracing within its boundaries the Black Diamond No. 2 location, on behalf of which (among others) an adverse claim and suit thereon in court were respectively seasonably filed and instituted. By judgment, rendered June 30, 1900, the right of possession of the ground in conflict was awarded to McManus, as the then owner and substituted plaintiff in the action on behalf of the Black Diamond No. 2 lode claim, described in the judgment by metes and bounds. The claim thus sustained in the adverse suit was surveyed for patent July 26, 1900, and the survey approved October 9, 1900, as No. 14,151.

Subsequent to the rendition of the judgment and to the survey of his claim, to wit, August 8, 1900, McManus made an amended location, in order to include a small tract of ground lying between one end of his claim and the adjacent Black Prince lode claim, laying his new end line within and upon the latter so as to preserve parallelism with his opposite end line, and recorded copy of notice of the amended location.

Thereafter, McManus filed copy of his judgment roll, together with official plat of survey (No. 14,151), submitted the required proofs, etc., and made entry, December 8, 1900, for the claim as involved in the adverse suit. Patent issued therefor November 16. 1901.

January 21, 1901 (subsequent to making entry under his judgment roll, as aforesaid, and prior to the issuance of patent under that entry), McManus had made an official survey of his so-called Black Diamond No. 2 claim, covering both the tract embraced in the original location, and in the entry, and the additional tract claimed under and by virtue of the amended location, the survey being approved by the surveyor-general March 22, 1901, and designated as No. 14,666.

By the duly certified abstract of title which accompanies the record it appears that all right, title, and interest in and to the "Black Diamond No. 2" was transferred, subsequent to the date of the entry last above mentioned and by successive conveyances, to The Gilson Asphaltum Company, the evident intention, as disclosed by the abstract, being to convey both the tract embraced in the original location (now patented) and the additional tract included in the amended location.

October 1, 1901 (also subsequent to the entry under the judgment roll), the Gilson company, the then claimant, filed application for patent to the "Black Diamond No. 2 Lode Mining Claim." extending "1337.35 linear feet on the " lode or vein thereof, etc., "but expressly excepting and excluding" there from "all that portion of the Black Diamond No. 2 lode in conflict with survey No. 14,150,

Black Prince lode, and also that portion in conflict with survey No. 14,151, Black Diamond No. 2 lode." The application was accompanied by the plat of, and based upon, official survey No. 14,666. Patent proceedings were prosecuted under the application in the usual manner and without hindrance, and culminated in the entry first above mentioned.

The papers having been forwarded in regular course by the local officers, your office, by letter of November 17, 1903, called attention to the fact that the improvements relied upon by the company are situated upon and were accredited to the excluded ground embraced in survey No. 14,151; and the local officers were directed to notify the company that it would be allowed sixty days from receipt of notice within which to show cause why its entry (No. 120, Ute series) should not be canceled because of insufficiency of improvements, and that in default of such showing and of appeal such action would be taken without further notice.

December 8, 1903, in response to this requirement, resident counsel for the company submitted the following:

1. That the present entry is based upon an amended location made by the grantor of the entry company prior to the survey of the ground which has been awarded said grantor by the judgment of a court of competent jurisdiction on adverse proceedings duly initiated.

2. That said grantor of the entry company, being the owner of the ground embraced in the original location, and included in said judgment, and said original location being less than the length along the vein allowed by law, Sec. 2320, R. S., said grantor and owner of said original location had a legal right to amend his original location and to take by such amendment additional unappropriated ground to the extent of fifteen hundred feet along the course of the vein, and by such amendment, valid when made, he appropriated such additional surface ground, and incorporated and merged it in his original location, as he had a right to do under the law and the decision of the Supreme Court of the United States (Del Monte etc. Co. v. Last Chance etc. Co., 171 U. S., 55); nor did such grantor waive or lose any right to thus amend his location because he had secured a judgment establishing and securing his possessory rights in and to the originally located premises.

3. That by the amended location the ground awarded by the judgment of the court became part and parcel of the claim, and the mere fact that such grantor had secured patent for a portion of the located ground upon his judgment roll, does not militate against the right of his grantee to secure patent for the balance of the legally located premises, by the making of the supplemental or additional entry therefor.

4. That the fact that the present entry is based upon an amended location made and perfected prior to any proceedings looking to the acquisition of patent title for the ground awarded by judgment, entitled the entry company, as grantee of the locator and judgment claimant, to make an additional or supplemental entry for so much of the valid amended location ground as was not included in the patent issued upon the judgment roll.

5. The fact that the amended location is an entirety (as was also the original location) entitled the entry company to include in the estimate of improvements

for the whole claim the work done and expenditure made upon that portion of the claim which was awarded by judgment, and patented upon the judgment

roll.

By decision of February 11, 1904, before mentioned, your office, after considering the foregoing, held that "the entry is not supplemental to the prior entry made upon the judgment, but is a separate, independent entry of ground not included in the location on which the former entry was made," and therefore not entitled to credit for the improvements accredited upon the earlier entry. The ́entry was accordingly held for cancellation.

The situation thus disclosed by the record is unusual, and the question presented by the appeal, primarily important as one of law, is little less so from considerations of administration.

Of a locator's

right, as a general rule, to enlarge his location by amendment, within the limits prescribed by the mining law and without prejudice to the rights of others, and to secure entry and patent for his amended location under proper proceedings to that end, there can be no question. The decision here must rest, therefore, upon the effect of the steps taken in the case.

As above stated, the original location, as relied upon and under which the claimant prevailed in the adverse suit, was made the subject of an official mineral survey, conformably to the judgment. Thereafter the limits of the claim were extended by amendment. No prejudice to the right of amendment resulted from the antecedent adverse proceedings and survey of themselves, and the amendment might have become effective for patent purposes but for the further circumstance, that the official survey of the claim as originally located, and in accordance with the judgment whereby the claim was sustained and described, was made the basis of entry and patent under the judgment roll. The fact that the amendment preceded both the approval of the survey and the ensuing entry is immaterial: the controlling consideration is that it was that official survey, of the original and litigated claim, to which the entry conformed and upon which it rested. Had that survey been renounced, the amended location made the subject of a new and substituted official survey (as it was in fact surveyed), and the later survey made the basis of entry under the judgment roll for that portion of the newly delineated claim embraced in the judicial award, and for the residue or additional tract under proper patent proceedings, a quite different situation. would have been presented (see Little Annie No. Five Lode Mining Claim, 30 L. D., 488). The claimant, however, chose the former

course.

The official survey is the initial step in the proceedings for the acquisition of mineral patent. The application for patent, notice thereof, entry, and patent must refer to and comport with it. It

constitutes the delimitation of the claim as a unit upon the survey records of the land department, and is the official and controlling advice of the locus and extent of the claim for which patent proceedings are prosecuted. Unless substituted by a later official survey in a proper case, and once made the basis of proceedings which culminate in a valid entry, no change in the boundaries or extent of the claim can be recognized. Obviously, it would be subversive of effective administration if these consummated proceedings could be reopened from time to time as applicants should see fit to enlarge their claims and apply for patent to the added tracts as portions of the former as to which patent proceedings had thus been prosecuted to completion; and the Department is without doubt that no authority of law therefor exists.

The entry based upon the first survey must be held to have constituted a waiver of any additional rights claimed by way of amendment of the original location; and the additional tract could be regarded. at most, only as having been embraced in an independent location, which would be subject to all the requirements of the law. The decision of your office must be, and it is, affirmed.

SWAMP LAND-FIELD NOTES OF SURVEY.

INSTRUCTIONS.

The rule announced in departmental decision of March 20, 1905, in the case of Wallace v. State of Minnesota (33 L. D., 475), relative to the adjustment of swamp land grants where swamp is disclosed only on one of the surveyed lines of a section, vacated, without prejudice to the right of the State to make further showing with respect to the matter, if it so desires, and instructions given that, for the present, the rule laid down in First Lester, page 543, alone be followed.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) June 17, 1905.

(F. W. C.)

Your office decisions of October 1, and December 12, 1904, in the matter of the contest of William J. Wallace v. State of Minnesota, involving the SE. 1 of NE. of Sec. 35, T. 55 N., R. 10 W., 4th P. M., Duluth, Minnesota, held that said tract was not shown by the field notes of survey to be of the character of lands which passed to the State under its swamp land grant.

Upon appeal this Department March 20, 1905 (33 L. D., 475), affirmed your office decision rejecting the State's claim to this tract under its swamp land grant. In its appeal the State urged the adoption of a rule, in reading the field notes of survey, where swamp is given only upon one side of a section, that the margins of such