Section 2341, Rev. Stat., applies to persons who occupied and improved land, theretofore designated as mineral, prior to their claims for it; section 2342, Rev. Stat., applies to persons who make claims to lands already set apart as agricultural. Section 2342, Rev. Stat., contemplates that the land shall be "clearly" agricultural; it is prima facie so by its return as agricultural by the surveyor-general; but said return is subject to contest, wherein the burden of proof is on the party denying its correctness, and wherein its comparative value for mining or agricultture must be shown.

Acting Secretary Joslyn to Commissioner McFarland, August 15, 1883.

SIR: I have considered the case of the Caledonia Mining Company v. John L. Rowen, involving the E. of the NW. of the NE. and the 1 NE. of the NE. of Sec. 34, T. 16 N., R. 5 E., Marysville, Cal., on appeal by the mining company from your decision of June 10, 1882, adjudging the land to be agricultural.

The contest was initiated December 31, 1880, for the purpose of determining the character of said tract, which was included in Rowen's homestead entry No. 2837, of August 10, 1880, and on which was in part located, October 25, 1880, a placer claim by said company. Upon the evidence taken at the hearing the local officers adjudged the land to be mineral, and your letter of February 23, 1882, affirmed their decision; but, upon a review of the case, you decided, June 10, 1882, that it was not shown that the land is valuable for minerals, and revoked your former decision.

From this decision the company appealed, and Rowen filed a motion to dismiss, on the ground that the appeal was not taken within sixty days from date of notice to them, as required by Rule 86 of the Rules of Practice. This motion your office denied for the reason that, as the appeal was filed within seventy days from date of said notice, the case fell within rule 87 of the Rules of Practice, as construed by your letter of February 10, 1882, in the claim of John H. Moore (The Reporter, vol. 1, No. 11). The facts are that the service of notice of your decision was made June 19, 1882, on contestants' attorney in person, and acknowledged by him the same day, and that the appeal was filed August 28, 1882, or on the seventieth day from date of said service.

I do not concur in your construction of Rule 87, a construction which nullifies rule 86 entirely, namely, "that ten days are allowed as additional time to the sixty days for appeal, when notice of a decision of this office (the General Land Office) is sent by mail to the local officers to be served by them." Rule 86 was made with full knowledge of the fact that the ordinary method of notifying the local officers of the decisions of your office is through the mails, and its terms, too plain to be misunderstood, require the appeal to be filed within sixty days after service of such notice on the party in interest or his attorney.

Rule 87 allows ten days additional in a single case, namely, "where notice of the decision is given through the mails by the register and receiver," and it was provided for the reason that the date of reception

of a notice sent by mail cannot be determined with the exactness required by Rule 86. It therefore has no application to the case of a personal service where the date of such service is exactly determined.

I concur, however, in the denial of the motion to dismiss, for the reason that the aforesaid rules were devised for cases of contest between claimants, where the only question involved is, Which party has the better right of entry? and not for cases where the interests of the Government are also involved, and the antecedent question is, Has either party right of entry? It is fitting that contests of the former class should be governed by definite rules, and that a party's rights should depend upon a strict observance of them; but it is not proper that the interests of the Government should be jeopardized by such unyielding rules, to the exclusion of the plain requirements of the statutes. In the case at bar the contest and the appeal present a question which the Secretary of the Interior is bound to decide under the law, namely, What is the character of the land? If mineral, or agricultural, or saline, for example, it may be awarded to either or to neither of the contestants.

Before discussing the case upon its merits, it becomes necessary to advert to two of the points covered by your decision, which are fundamental to a correct adjudication, namely, the particular statute governing the case, and the construction of the rule relating to the burden of proof.

It appears that your decision of February 23, 1882, held that "it should be shown under section 2341, that the land is properly agricultural," and it also appears that counsel for the contestee founds part of his argument on the same section. It is unnecessary to discuss the force and effect of this section, and of section 2342, further than for the purposes of this case, and as they appear in the naked text of the Revised Statutes, section 2341 provides for a particular class of persons and of rights, namely, where homesteads have been made on certain lands (described as "heretofore designated as mineral lands, which have been excluded from survey and sale"); and where they "have been made, improved, and used for agricultural purposes," "the owners of such homesteads * may avail themselves of the provisions" of the homestead law. It is clear, therefore, that this section gave a right of homestead entry to persons who had already occupied and improved a tract of land, and who had no such right outside of its provisions. Thus it was applied in 1877 by Mr. Secretary Schurz in the case of Carron v. Curtis, (Sickels' Mining Laws, 445), where the contestant had resided upon and improved the land in question from the year 1859; and he observes that "the provisions of the above section" protected "the rights of actual settlers upon lands reserved as mineral, which have been occupied and used for agricultural purposes." And again, in 1872, in the case of Smith v. Stewart (Ibid, 443), it is said that

The object of the tenth section (act of July 26, 1866, substantially

dentical with section 2341, Rev. Stat.) was to give to persons who had in good faith made agricultural settlements on public lands theretofore designated as mineral, but subsequently determined to be agricultural, a preference, in pre-empting or entering the land as homesteads, over those admitted to similar rights by the eleventh section (section 2342, Rev. Stat.).

Consequently section 2341 does not apply to Rowen, who applied to enter upon public land to which he had a right of entry, and prior to an actual settlement by him and improvement of it. The record shows that "the land in question was returned by the surveyor-general as agricultural;" that it "was suspended as mineral by plat and Commissioner's letter (N) of January 22, 1872," and that "the mineral suspension was released by circular of April 27, 1880." Rowen made his entry August 10, 1880, and his case therefore falls within section 2342, because though the land applied for lay within what is known as the mineral belt of California, it had been duly designated and set apart as agricultural, as set forth in my decision in the case of Hooper v. Ferguson of August 3, 1883.

In regard to the burden of proof, it appears from the terms of section 2342 that the Secretary of the Interior was authorized to designate and set apart such lands as were "clearly agricultural," which lands were thereupon to be open to entry as other public lands; wherefrom it is plain that Congress designed giving the right of homestead entry only in the event that the lands were clearly agricultural. After said designation they were prima facie of that character, and by existing rules the burden of proof falls upon the person traversing their prima facie character. In the case at bar the contestants' affidavit alleged that "said land is essentially mineral land, and more valuable for mining than for agricultural purposes." Your decision of June 10, 1882, very properly holds that "it was not incumbent on the homesteader to show the agricultural capacity of the land," for the reason that the presumptions were already in his favor; but it also declined a consideration of much testimony offered by the mineral claimants to show the non-agricultural character of the land, and therein it overlooked the fact that it was their plain duty to prove, first, that the land is not "clearly agricultural;" second, that it is "valuable for minerals;" and, third, that it is more valuable for mining than for agricultural purposes." The case upon which your said action is based (North Leadville v. Searl, Sickels' Mining Laws, 349), is one in which the comparative value of the land was not involved; for, as remarked in a similar case (Town Site v. Placer, Copp's Mineral Lands, 251), "if the land is mineral it was subject to location only under the provisions of the mining law, without reference to the relative value of a portion of the tract for town-site purposes." But when the statutes provide for mineral entries upon land valuable for minerals, and for agricultural entries upon lands clearly agricultural, there arises of necessity a comparison of their respective values when

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ever these two classes of claims come in conflict. And accordingly, July 10, 1872, in the case of the Central Pacific Railroad Company v. Mineral Affiants (Copp's Mining Decisions, 128), Mr. Secretary Delano observed that "the land is more valuable for agricultural than for mining purposes;" and to determine this relative value of mineral and agricultural lands has been a principal object of hearings since that date, (Searl Placer Mine, 9 Copp's Land Owner, 189, and Maxwell v. Brierly, 10 ditto, 50); such, indeed, is the express direction of general circular of July 15, 1873, and substantially that of general circular of April 1, 1879. (Circular September 22, 1882, applies the rule to all cases, including town sites). The burden of proof then being on the mineral claimant in this class of contests, it is competent for him to show his rights, not only absolutely, but relatively, by proof of the inferior rights of the agricultural claimant. And since it is a question in which the Government is interested as well as the contestants, due weight should be given to all the facts in evidence. Consequently when you declined to consider the testimony offered by the Caledonia Mining Company to show the non-agricultural character and the relatively superior mineral character of the land in contest, and rested your decision solely on the testimony respecting its absolute mineral character, you ignored a portion of the evidence which is material to a just adjudication of the case. Considering now the case upon its merits, under the principles above enunciated, it appears that the mining company have shown by eight witnesses, practical men, that the land in question is composed of red gravel and cement, part deep and part surface diggings, which they have been mining since 1875 to the full extent of the water capacity, and that said capacity has recently been much enlarged, with prospects of a correspondingly increased success; that for the purpose of working this and the adjacent tracts, covered by their location and that of the Yuba Placer Mining Company, a tunnel has been built by the two companies at an outlay of $1,300, and that the contestants have on the land in contest improvements of the value of $500, consisting of a flume, iron pipes, pressure boxes, sluice ditches, etc.; that they have mined about 7 acres of the tract to the average depth of 23 feet, the profits from the gold obtained thus far paying all expenses; that the entire tract is hilly and covered with coarse gravel and boulders, so that it will not retain moisture sufficient to mature a crop of cereals oftener than once in three years, or to sustain more than one sheep to the acre during the spring season, and this only when the conditions are exceptionally favorable; that it is patent to the observer that the land is only fit for mining, and no crops have been known to reach maturity, though part of it was cultivated on two occasions prior to the contestee's experiment, and abandoned because they would not pay expenses; and that the crop of barley then growing, which was planted by the contestee, was drying up at the roots, and probably would not pay for the harvesting. On the other hand, Rowen introduced five witnesses, practical men, by

whom it was shown that the land had been prospected for years prior to 1875, and had never paid expenses, but it was admitted that said prospecting was done by the primitive methods, and was not a fair test of its mineral character; that the land was agricultural and better adapted to agriculture than to mining, but it was admitted that a crop had never been raised upon it; that it ought to produce from eight to fifteen bushels of grain to the acre, but it was admitted that this would only happen in a very favorable season, perhaps every third year; and that contestee's improvements were 15 acres broken and sowed, 172 rods of wire fence, and a quantity of board fence, but it was admitted that part of the fencing was constructed after the initiation of the contest.

I am of the opinion that, on the foregoing facts, the contestants have shown all which they offered or were required to show, and that the contestee has not made a successful rebuttal. It is manifest that the land is not clearly agricultural and that the testimony to its agricult ural character is merely speculative. It is evident that it is less valuable for agricultural purposes than for mining, for it appears that it never paid the expenses of cultivation. And, in view of the fact that there was a considerable outlay at the outset for the tunnel, etc., that the water supply has until recently been insufficient to work the claim to advantage, and that notwithstanding these drawbacks the ore obtained has liquidated all expenses, it is my judgment that the land is valuable for minerals.

The definition which your decision invokes to support the conclusion that the land is not valuable for minerals, namely, that it must be "land which it will pay to mine by the usual modes of mining" (Town Site of Deadwood, 8 Copp's L. O., 155), is satisfied by the facts of this case, even without consideration of the land's relative value for mining and for agricultural purposes.

For these reasons your decision is reversed.

Herewith are returned the papers accompanying your letter of January 11, 1883.

3. SAME-ON REVIEW.

Secretary Teller to Commissioner McFarland, December 10, 1883.

SIR: I have considered the motion of counsel for John L. Rowen for a review of my decision of August 15, 1883, in the case of the Caledonia Mining Company v. John L. Rowen, Marysville district, California, holding the tract in controversy to be mineral.

The first three grounds of review assigned are to the effect that, by reason of said company's failure to file their appeal from your decision in said case within the sixty days required by Rule 86 of the Rules of Practice, said decision became final, and this Department had no juris