springs into existence when the necessary proof submitted in support of the application has been approved by the local office, the purchase price of the land paid, and a receipt given there for. Until this stage of the proceedings has been reached, the application is a mere offer to purchase, or the expression simply of a desire to establish a claim to the land, which, while it has the effect of excepting the land from other disposition pending the consideration of said application, does not segregate the land.

In the case of State of California v. Nickerson (20 L. D., 391) the Department held that an application to purchase under the act of June 3, 1878, supra, is not an appropriation of the land, and in the instructions of August 22, 1889 (9 L. D., 335), it is said that an application to purchase under said act does not operate as a segregation of the land covered thereby, but simply prevents the land from being entered by another, pending the consideration of such application, and that the applicant has no right to, or control over, the land until his application has been finally allowed. It thus appearing that, under said act, an application which has not ripened into an entry does not segregate the land, and that it confers upon the applicant no right to or equity in the land covered thereby, it therefore follows that a contest against such an application, although conducted to a successful termination, does not carry with it a preference right. Jacoby v. Kubal et al. (29 L. D., 168).

The decision of your office is accordingly reversed. Hays's entry will be canceled and Todd will be allowed to proceed with her aforesaid application in the regular way.

SECOND HOMESTEAD ENTRY-ACTS OF JUNE 5, 1900, AND APRIL 28, 1904.

Cox v. WELLS.

Construing the acts of June 5, 1900, and April 28, 1904, relating to second homestead entries, together, the earlier act is held to be modified by the later, and all applications to make second homestead entry filed subsequently to the date of the later act should be disposed of thereunder, so far as the provisions of that act are applicable.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) June 26, 1905. (E. P.)

July 29, 1904, Levi F. Wells, as the successful contestant against the homestead entry of Peter G. Cox, embracing the NE. ‡ of Sec. 1, T. 34 N., R. 11 W., O'Neill land district, Nebraska, made homestead entry of the land described. Against Well's entry, said Cox, on August 24, 1904, presented an affidavit of contest, alleging (as ap

pears from so much of said affidavit as is set forth in your office decision of December 29, 1904, the affidavit itself not being with the record herein) that-

he is well acquainted with the tract of land embraced in the homestead entry of Levi F. Wells, No. 19662, made July 29, 1994, at the U. S. Land Office at O'Neill, Nebraska, for the NE. quarter of Section 1, Twp. 34 N., of Range 11 W., and knows the present condition of the same; that the said Levi F. Wells at the time he made said entry was not a qualified homestead entryman in this, to wit: that prior thereto, on the 20th day of May, A. D. 1892, the said Levi F. Wells, at the said U. S. land office at O'Neill, Nebraska, made homestead entry for the following described tract of land, to wit: SE. 1 SW. 4, Sec. 26, and N. } NE. and NE. NW. 1, Sec. 35, Twp. 33, Range 8; thereafter, on the 15th day of Nov., 1892, the said Levi F. Wells, for a valuable consideration, relinquished said entry to the U. S.; that said relinquishment was wholly voluntary and was made for the purpose of speculation on the public domain; that said Wells [did not] for any cause lose or forfeit said entry but his relinquishment thereof was free and voluntary and for the purpose of fraudulently making money in the entry on said land.

Affiant further charges that said entry No. 19662 for said NE. quarter of Section 34, range 11 W., was speculative and fraudulent and made in the interest of another person and not solely for the benefit of the said Wells; and for fur ther cause of action affiant says that he has a prior and superior right to said land as against said Wells; that at the time said entry was made on said land affiant was a settler on said land, was residing thereon and had valuable improvements thereon, worth about two thousand dollars, with about one hundred acres of the same in cultivation and affiant was at that time in every way a qualified homestead entryman and affiant further charges and alleges that the contest filed by the said Wells against this affiant's former homestead entry on said tract of land was speculative, fraudulent and void and filed for specu lative purposes and in the interest of other persons and not for his own benefit; that said Wells was employed, hired and paid by others than himself to file said contest with the view and purpose that others than he might acquire title to said land and that the said Wells by reason of said contest acquired no preference right to enter said land.

This affidavit was rejected by the local officers on the ground that it did not state a cause of action, it being held by them that Wells. having forfeited his former entry prior to the passage of the act of June 5, 1900, was qualified under the provisions of said act to make the entry in question, and that the same was not therefore subject to contest because of the fact that he had made said former entry.

On appeal by Cox from the action of the local officers, your office, by decision of December 27, 1904, held as follows:

The original entry of Wells was made prior to the act of June 5, 1900 (31 Stat., 267), and his right to make a second entry is provided for in said act, and therefore your action rejecting the contest for insufficiency of charge was correct and is hereby affirmed.

From your office decision Cox now prosecutes an appeal to the Department.

The application to make the entry in question was filed after the

approval of the act of April 28, 1904 (33 Stat., 527), entitled "An act providing for second and additional homestead entries and for other purposes," the first section of which provides as follows:

That any person who has heretofore made entry under the homestead laws, but who shall show to the satisfaction of the Commissioner of the General Land Office that he was unable to perfect the entry on account of some unavoidable complication of his personal or business affairs, or on account of an honest mistake as to the character of the land; that he made a bona fide effort to comply with the homestead law and that he did not relinquish his entry or abandon his claim for a consideration, shall be entitled to the benefit of the homestead law as though such former entry had not been made.

That portion of the act of April 28, 1904, above set forth, like the third section of the act of June 5, 1900, relates to persons who had, prior to its passage, lost or forfeited their homestead entries, and were for either of said reasons unable to perfect the same. The act of 1904, however, imposes conditions or restrictions that were not imposed by the act of 1900, the earlier act providing merely that any person who had from any cause theretofore lost or forfeited his homestead entry, should be entitled to the benefits of the homestead law, as though such former entry had not been made, while the latter act requires such a person, in order to entitle himself to the benefits of the homestead law, regardless of his former entry, to show to the satisfaction of your office that he was unable to perfect such former entry on account of some unavoidable complication of his personal or business affairs or a mistake as to the character of the land; that he inade a bona fide effort to comply with the homestead law, and that he did not relinquish such entry or abandon the claim for a consideration. The Department is of the opinion that the effect of the act of April 28, 1904, is to modify the act of June 5, 1900, or place a limitation upon the operation thereof; and that all applications to make second homestead entry, filed subsequently to approval of the act of April 28, 1904, should be disposed of thereunder so far as the provisions of the same are applicable.

It appears from the record herein that Wells's application to make a second homestead entry was filed July 29, 1904, and that his former entry was made in April, 1892, and canceled by relinquishment November 15, of the same year. It is alleged by Cox in his affidavit of contest that Wells relinquished his former entry for a valuable consideration, and that, therefore, he was not, on July 29, 1904, qualified to make a second homestead entry. In view of the provisions of the said act of April 28, 1904, the Department is of opinion that this charge constitutes a sufficient cause of action, and that a hearing should be ordered thereon.

The affidavit of contest, as before stated, is not with the record. now before the Department, and informal inquiry at your office has failed to disclose its whereabouts. You will therefore cause further

search to be made therefor, and, if found, it will be returned to the local officers, with instructions to issue notice thereon. If, however, it be not found, your office will give Cox a reasonable time to file a copy thereof, and, if so filed, the same action will be taken with reference thereto as if it were the original,

The decision appealed from is accordingly reversed.

MINING CLAIM-ADVERSE PROCEEDINGS-LODE WITHIN PLACER.

THE CLIPPER MINING Co. v. THE ELI MINING AND LAND CO. ET AL. The rejection by the land department of an application for patent to a mining claim, because of failure to establish the presence in the land involved of mineral deposits of such extent and value as to justify the issuance of patent, does not amount to a determination that the location upon which the application is based is invalid.

The judgment of a court of competent jurisdiction, pursuant to section 2326 of the Revised Statutes, goes only to "the question of the right of possession" of the land in controversy, as between the parties litigant, and it remains in every case for the land department to determine all other questions touching the right to patent.

A placer claimant who, on the strength of his placer location, prevails in an adverse suit under section 2326, Revised Statutes, against an applicant for patent to lode claims within the placer limits, may take title to the lodes under the judgment roll, if at all, only as lodes within a placer; and if the land embraced in the placer claim is not of patentable placer character, the lodes are not in that situation and as such available to the placer claimant. If the land embraced in the placer claim be found to be non-placer in the patentable sense, so that the placer claimant can not take the legal title thereto, the basis of his claim to the lodes disappears and no prejudice to the claim of the lode applicant can have resulted from the judgment of the court awarding the placer claimant the right of possession of "the ground in controversy," as part of the placer, in which the lodes are. An application for placer patent relative to the date of the filing of which the question of the known existence of lodes within the placer limits is to be determined is one which may result in the acquisition of title.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) June 27, 1905. (F.H.B.)

There is in dispute here a portion of the tract embraced in what is known as the Searl placer mining claim, situate in or near the city of Leadville, Colorado. The placer claim, and various portions of it, have frequently been in controversy before the land department and the courts, during a long period of years; and the case now before the Department arises on a "petition for orders of execution under former departmental decisions" affecting the portion here involved. The facts essential to an understanding of the pending controversy may be summarized as follows:

The Searl placer was located December 14, 1877; and The Eli Mining and Land Company, A. D. Searl, F. C. Schroeder, A. T. Britton, and H. J. Gray now claim succession in interest under the location, by sundry mesne conveyances.

April 5, 1879, the county judge of Lake county, Colorado, on behalf of the inhabitants of "North Leadville," filed townsite application covering the land embraced in the Searl placer location. This application was resisted by the then placer claimants, with the result that, after hearing had, the Department, by decision of April 17, 1880 (7 Copp's L. O., 36), affirming, on appeal, your office decision of December 24, 1879, held that the evidence submitted was not sufficient to overcome the presumption of the mineral character of the land raised by the surveyor-general's return (theretofore made) and by the proximity of known valuable mines, and rejected the townsite application accordingly.

In the interval between the presentation of that application and the departmental decision rejecting it, the placer claimants applied for patent to their claim, then embracing 152.02 acres. Thereafter (November 10, 1882), and by reason, it would appear, of the filing of a number of adverse claims, by lode claimants, during the period of publication of notice of the application for placer patent, and the timely commencement of suits thereunder, and of the presentation of several applications for patent to lodes alleged to exist within the placer claim, with respect to one of which a hearing was ordered and had, A. D. Searl, who had in the meantime succeeded to the interests of the other claimants, filed amended application for patent (survey No. 435), whereby all save two of the asserted lode claims were excluded and the placer claim was reduced to an area of 101.918 acres, the adverse suits being thereupon dismissed.

November 14, 1882, a special agent of your office reported, inter alia, that the land was supposed to contain lodes or ledges of carbonate mineral and that the placer claim was clearly fraudulent. Two days later a protest was filed on behalf of some two hundred of the residents of Leadville, in which it was alleged, among other things, in substance, that the ground embraced in the location was not placer in character; that the claimant never intended to work the premises as a placer claim; and that the ground was almost entirely covered by lode locations, and was immediately adjacent to a well defined system of lodes. Thereupon, by departmental direction, a hearing was ordered, to determine whether the land was subject to patent under the placer application and the status of all existing claims and interests; and all prior orders and proceedings were suspended.

Hearing was accordingly had, November 15, 1883, at which appearance was made and the testimony submitted by and on behalf of