who had expended $5,000 or more in working and improving a coal mine upon the lands. Carthage Fuel Co., In re, 41 L. D. 21, p. 25. The declaratory statement, as provided for in this section, is not necessary where no preference right of entry exists. Carthage Fuel Co., In re, 41 L. D. 21, p. 25. Upon a timely presentation of an application by a declarant to purchase coal lands, the effect of the filing of the declaratory statement ceases, except as it may be invoked against a withdrawal of the lands or rights claimed by an adverse claimant, during the preference right period, otherwise it becomes functus officio. Richardson v. Wilson, 41 L. D. 275, p. 277. 2. CONTENTS-FORM AND SUFFICIENCY. The declaratory statement as to a coal entry must show that the entryman has located and opened a valuable mine of coal on the land. Sterling, In re, 15 C. L. O. 256. The declaratory statement is required to be made under oath and to show that the claimant has located and opened a valuable mine of coal on the land, and that he has expended in labor and improvements on such mine a specific sum of money and giving a description of such labor and the improvement. Allen, In re, 8 L. D. 140, p. 141. The regulations under this section require the claimant to show that he is in the actual possession of the mine and makes the entry for his own use and benefit, and not directly or indirectly for the use and benefit of another. Allen, In re, 8 L. D. 140, p. 142. 3. OATH OF CLAIMANT COMPETENCY OF NOTARY PUBLIC. Under sections 2348 and 2349 R. S., a notary public is not authorized and is not competent to administer an oath in support of a claim as a preemptor of coal lands. United States v. Manion, 44 Fed. 800. An indictment for perjury can not be predicated upon an affidavit made before a notary public by a person in support of his claim to a preemption right to purchase coal land under this statute. United States v. Manion, 44 Fed. 800, p. 801. 4. TIME OF FILING. The Land Department is without authority to waive the statutory requirement as to when the declaratory statement must be filed, and if filed after the statutory period it is without effect. Morrison, In re, 36 L. D. 126, p. 130. Unless the declaratoy statement is filed within the statutory period the preference right lapses and such declaratory statement gives no right whatever; but the statute contemplates a total period of substantially 14 months for the existence of this preference right, and this includes an absolute right for the first 60 days and the right for the remaining one year period upon the condition of filing a declaratory statement. Scofield, In re (Cunningham Claims), 41 L. D. 176, p. 233. There is no provision to the effect that an association of four or more persons asserting a claim for 640 acres shall present its declaratory statement within 60 days after the completion of the expenditure of not less than $5,000 in working and improving a mine, but actual possession concurring with the opening and the improving of a mine is the condition precedent to the declarant's rights and priority therein, followed by seasonable filing of the proper notice and continued good faith, and these determine the preference right to purchase. Carthage Fuel Co., In re, 41 L. D. 21, p. 26. 5. FAILURE TO FILE-EFFECT. The failure to file the declaratory statement and to make the required payment renders coal lands subject to relocation. Brennan v. Hume, 10 L. D. 160, p. 162. Where a person files a coal declaratory statement, a sale of the land before final proof defeats his right to a subsequent entry and purchase of the land. Union Coal Co., In re, 17 L. D. 351. 6. CLAIMANT MUST MAKE IN PERSON. The regulations adopted under this section require a declaratory statement and affidavit to be made by the applicant himself, but such clainant may, after making his application or declaratory statement and affidavit empower an agent to do certain acts and certain proofs may be made by an agent. Hallowell, In re, 2 L. D. 735. 7. BURDEN OF PROOF. The burden of proof is on an applicant to establish the fact that at the date of the hearing there was no bona fide claim under any law of the United States or any mining claim. Smith v. Buckley, 15 L. D. 321, p. 322. SECTION 2349, REVISED STATUTES. All claims under the preceding section must be presented to the register of the proper land district within 60 days after the date of actual possession and the commencement of improvements on the land, by the filing of a declaratory statement therefor; but when the township plat is not on file at the date of such improvement, filing must be made within 60 days from the receipt of such plat at the district office; and where the improvements shall have been made prior to the expiration of three months from the 3d day of March, 1873, 60 days from the expiration of such three months shall be allowed for the filing of a declaratory statement, and no sale under the provisions of this section shall be allowed until the expiration of six months from the 3d day of March, 1873. A. CONSTRUCTION AND APPLICATION OF SECTION. B. PREFERENCE RIGHT. C. RIGHT TO POSSESSION, p. 766. D. DECLARATORY STATEMENT, p. 766. E. NOTICE FAILURE TO GIVE EFFECT, p. 770. A. CONSTRUCTION AND APPLICATION OF SECTION. This section provides the method of procedure for the presentation of claims under the preceding section. McConnell, In re, 18 L. D. 414, p. 416. Under the coal-land laws the terms "location," "claim," "purchase," and "entry," have acquired well and defined meanings. McKibben v. Gable, 34 L. D. 178. Alaskan Coal Lands, In re, 27 Op. Atty. Gen. 412, p. 417. This section refers to the claims held under the preceding section, and such claims must be presented within 60 days after the date of actual possession and the commencement of improvements. Carthage Fuel Co., In re, 41 L. D. 21, p. 26. 1. NATURE. B. PREFERENCE RIGHT. 2. CONTINUANCE BY FILING DECLARATORY STATEMENT. 1. NATURE. The preference right granted by this section is a mere right of entry secured to the entryman as against others, and it affects no other question and has no relation to the price of the land, but refers to the entry only, and if waived by neglect to prove up and pay for the land it ceases. Coal Lands, In re, 1 L. D. 540, p. 541. The failure of a preference-right claimant to file or purchase within the time limited will not forfeit his right to purchase and enter thereafter except in favor of some other qualified applicant. Morrison, In re, 36 L. D. 319, p. 322. The office of the declaratory statement provided for by this section is to preserve the preference right of entry given by the preceding section, but not to create it, and if the right does not exist the declaratory statement has no office to perform and is without force or effect for any purpose. McKibben v. Gable, 34 L. D. 178, p. 180. 2. CONTINUANCE BY FILING DECLARATORY STATEMENT. Where a preference right of entry, as provided in section 2348, is once acquired the right may be preserved and continued by filing a declaratory statement under this section until the expiration of the time within which proof and payment may be made under section 2350. McKibben v. Gable, 34 L. D. 178, p. 180. The continuation of the preference right given by the preceding section beyond the 60-day period depends upon the filing of the declaratory statement in accord with this section, otherwise such preference right lapses and is at an end, and the sufficiency of the declaratory statement provided in this section is to preserve such preference right and not to create it, and if such right does not exist the declaratory statement is without force or effect. Morrison, In re, 36 L. D. 126, p. 128. Morrison, In re, 36 L. D. 319. See McKibben v. Gable, 34 L. D. 178, p. 181. C. RIGHT TO POSSESSION. Under the coal-land law, a claimant seeking a preference right to purchase and coming lawfully into the possession of public coal land is entitled, upon continued compliance with such laws in good faith, to hold and possess the same, as against any other party claiming under the same law, for a period of 1 year and 60 days after the date of actual possession and commencement of improvements. Skoyen v. Harris, 24 L. D. 46, p. 48. D. DECLARATORY STATEMENT. 1. DUTY TO MAKE-PLACE OF FILING. 2. OFFICE AND PURPOSE. 3. FILING IN PERSON- OATH OF APPLICANT. 4. FORM AND SUBSTANCE. 5. TIME OF FILING. a. DATE FROM POSSESSION. b. SIXTY-DAY PERIOD- COMMENCEMENT. 6. TIME FOR MAKING PROOF AND PAYMENT. 7. WHEN FILING IS UNNECESSARY. 8. PROOF AFTER FILING. 9. GROUNDS FOR REJECTING. 10. SINGLE FILING ONLY PERMITTED EXCEPTIONS. 1. DUTY TO MAKE-PLACE OF FILING. Under this section all claims must be presented at the proper land office within 60 days after the date of actual settlement and improvement by filing a declaratory statement therefor. O'Gorman v. Mayfield, 19 L. D. 522, p. 523. Neither a coal entry nor the filing of a declaratory statement is authorized upon unsurveyed lands. Lyon, In re, 20 L. D. 556. The right to purchase coal lands can not be initiated by the filing of a declaratory statement. Reed v. Nelson, 29 L. D. 615, p. 619. 2. OFFICE AND PURPOSE. The office of the declaratory statement is to protect and preserve the preference right previously acquired for the definite term fixed by the statute, and its absence opens the land to other appropriation or disposition after the 60-day period. McKibben v Gable, 34 L. D. 178. Morrison, In re, 36 L. D. 319, p. 321. The office of a declaratory statement is not to create but to preserve a preference right of entry theretofore acquired by the opening and improvement of a mine or mines of coal, and if the right does not exist the declaratory statement has no office to perform and is without force or effect. 3. FILING IN PERSON OATH OF APPLICANT. A coal-land declaratory statement filed by one person in the interests of another must be rejected. Conner v. Terry, 15 L. D. 310, p. 312. The affidavit to the application and declaratory statement must be made by the applicant in person, as swearing to such statement by proxy finds no support in law. Conner v. Terry, 15 L. D. 310, p. 312. 4. FORM AND SUBSTANCE. The department regulations under these coal sections provide that a claimant must state in his declaratory statement that he has located and opened a valuable mine of coal on the land and has expended in labor and improvements a certain stated sum, with a particular description of such labor and improvements; but neither this nor the following section require that a claimant must have opened a mine on the land at the time of presenting his claim and that a declaratory statement without such showing is sufficient. Ouimette v. O'Connor, 22 L. D. 538, p. 541. A coal entry may be permitted on a defective declaratory statement. 5. TIME OF FILING. a. DATE FROM POSSESSION. Under this section a declaratory statement or notice of preference right must be filed in the proper land office within 60 days after the date of actual possession and commencement of improvements. Ghost v. United States, 168 Fed. 841, p. 844. Brennan v. Hume, 10 L. D. 160, p. 162. Paire v. Markham, 21 L. D. 197, p. 198. Coal-land claimants who were actually in possession of the lands during their suspension from sale must file their declaratory statements within 60 days from its termination as required by this section. Foster, In re, 2 L. D. 730, p. 734. |