"This was the view which has been uniformly taken and enforced by the officers of the Land Department in the administration of these acts. These officers have not recognized or given any effect to these mining claims."

Do you make any comment on that language of the Supreme Court? Colonel ROOTE. If my argument on yesterday with respect to the application of the mining law to all land that has not been specifically withdrawn was sound-that language by the Supreme Court is obiter dicta anyway. There is no doubt about that.

The CHAIRMAN. The Supreme Court cites some cases, and among others the Lenertz v. Malloy case in a footnote in support of the last statement which I read from the decision of the court. Your criticism would go to this language, too?

Colonel ROOTE. Yes, sir; a respectful criticism. That question was not before the court. Courts often throw out expressions of that kind, and it is uniformly held that when that is done, or when the question is not directly before the court for decision, what it says is not binding upon any other court in the future.

There is another reason why this land could not be taken up under any other laws, because the only other laws are the agricultural laws or homestead laws, and this is not agricultural land. I want to refer you to a decision that is directly in point. It is in my brief, where I raise this very question with respect to the land in the Red River—that is, as to whether the homestead laws apply to them; and this is what I said on that subject:

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It is contended by counsel for the United States that Congress intended by the concluding sentence in section 16 of the act of March 3, 1891 (26 Stats. 1026), to provide for the disposal of all public land in Oklahoma for agricultural purposes only, under the homestead law (except such lands as might be disposed of under the townsite law). In the passage of the homestead law Congress intended to provide homes for citizens of the United States upon which they might reside, cultivate the land, and provide themselves thereby with means of living. None of these purposes can be accomplished on the lands in the bed of Red River, and such lands are wholly unsuitable for agricultural purposes.

"Agriculture is defined to be the art or science of cultivating the ground. (Dillard v. Webb, 55 Ala. 468, 474.) Webster's definition of agriculture is practically the same.

Agricultural products means things grown upon the land which may be utilized for the use of man, and agricultural purposes means the using of the soil for planting seeds and raising and harvesting crops; the rearing, feeding, and management of live stock. (Vinzel v. Grogan, 67 Wis. 147.)

"In the case of Pollock v. Blackledge, decided by the First Assistant Secretary of the Interior on October 20, 1919, and not yet published, in which Blackledge's homestead entry was involved, it appeared from the evidence that 40 acres of said homestead entry was covered by the water of a lake. It was held that the 40 acres covered by the water of the lake was not susceptible of cultivation, grazing, or other agricultural use; that it contained no improvements, and therefore was not subject to entry under homestead laws."

The case I referred to, that of Pollock v. Blackledge, is a case in which the First Assistant Secretary of the Interior went at great length into the purpose of Congress in enacting the homestead laws, setting out that it was to enable citizens to make homes, and that it would be preposterous-I am paraphrasing now-to suppose that Congress intended to make such laws apply to land that could not possibly be used for farming.

Mr. BURTNESS. If you should put a settler in there on this Red River land, with 10,000 acres of those river-bed lands, he could not make a living from agriculture, could he?

Colonel ROOTE. He would not only not make a living, but he would lose whatever he has. It is utterly worthless land, or the whole 30 miles of it, and I presume that the entire 339 miles of it is utterly worthless for agricultural purposes. It is impossible to raise anything upon it. It is just a bed of sand, and that sand changes almost every year. When it is dry the wind blows it.

Mr. LARSEN. What is the depth of the water right over it?

Colonel ROOTE. That is a very strange river. Sometimes there are freshets in it.

Mr. LARSEN. But most of the time it has no water at all?

Colonel RoOTE. Most of the time it has none at all. There is always, of course, a little thread of water between the banks, but for most of the time there is practically no water in it.

Mr. LARSEN. Sometimes it gets to a considerable depth?

Colonel ROOTE. Yes, sir; for a few hours or for a few days when there is a great rain out in the West. There is quite a watershed there, and sometimes the water rushes down with a depth of 10 feet. Sometimes the water is from bluff to bluff, as Major Dyar said the other day, or 2 miles wide and 5 or 6 feet deep. However, that lasts only three or four days, or something like that.

The next matter that I invite the attention of the committee to is the bill itself. However, before coming to that I have another matter to which I would like to refer. In Major Dyar's presentation of this case he took occasion to say that the locators of what we call the Burk Divide claims applied for a patent and that the patent was denied. What Major Dyar said about that is literally true, but he did not give all the facts, and when you get all the facts the matter has a very different aspect from what it has from what Major Dyar said here in giving his version of it. The patent was denied by the Commissioner of the General Land Office in a decision in which he based his ruling solely upon an earlier decision-the decision in the case of the Success Mining Co. The decision in the Success Mining Co.'s case may be found in the record of the Senate proceedings or hearings at page 97. In that case the application for a patent was denied for the sole and only reason, as assigned there by the officer of the Government, that the land did not belong to the United States. Mr. DYAR. I beg your pardon. Do you find any such language in there? Colonel ROOTE. That is the meaning of it, and I have given the page where it can be found. The decision in substance is that where rivers or streams are meandered the bed of the stream belongs to the riparian owners if it is a nonnavigable stream and belongs to the State if the stream is navigable, and that, therefore, the Government of the United States has no proprietary interest in the bed of a stream. That is what he says, and since the major seems to doubt it let us read it.

Mr. DYAR. No; that is the substance of it.

Colonel ROOTE. That is what I meant when I said it was upon the ground that the United States did not own the land and not for the reason that the mining laws did not apply in Oklahoma. Not a word was said about that; but it was upon the ground or for the reason there stated that the land belonged to some one else-either to the State of Oklahoma or to the riparian proprietors—and was not Government land. That being true, of course the Government could not give a patent for it.

The CHAIRMAN. What is the date of that decision? Is it October, 1919?

Colonel RoOTE. That was the second decision. There was an appeal, which is found on page 2580 of volume 5, from which I read as follows:

N. Guthrie 012257.

Mary Isle Developing Association. firmed.

Appeal from General Land Office.

APRIL 12, 1920.

Rejection of Mineral Application.

Af

The Mary Isle Developing Association has appealed from decision of August 26 1919, by the Commissioner of the General Land Office, rejecting its application for an alleged mining claim for oil, crude petroleum, and natural gas in the bed of the Red River south of the thread of the stream in the vicinity of T. 5 S., R. 14 W.. I. M., Oklahoma.

The application was rejected for the reason that no discovery of mineral had been shown, and for the further reason that the mining laws of the United States are not applicable to the area in question.

This case in essential respects is similar to that of Goat Island Association No. 1, Guthrie 012365, decided by the department March 30, 1920, affirming the action below rejecting the application.

For the reasons therein stated, the decision appealed from 5296 is affirmed.
ALEXANDER T. VOGELSANG,
First Assistant Secretary.

It was because they held that the land either belonged to the State of Oklahoma or the riparian proprietors.

Mr. DYAR. I made an assertion there that was a little broader, perhaps, than I was warranted in making, and I think you might well read the Success Mining decision, or the latter part of it, at any rate.

Colonel ROOTE. Each member of the committee has this Senate hearing, and this matter appears on page 97.

Mr. BURTNESS. The conclusion is very short, and, perhaps, the conclusion could be read into the record. There is a little doubt about it, I think. Colonel RoOTE. I read from that decision as follows:

"Under the above authorities it is clear that the Federal Government, acting through the Land Department, does not dispose of tracts lying in the bed of a meandered or meanderable stream separate and apart from the riparian lands, and that such tracts are not subject to location and sale under the mining laws."

It is perfectly clear, if you will read the whole decision, that it was held that this land was subject to the mining laws because the land either belonged to the State in which it is situated, or to the riparian proprietors. That is the ground of the decision. From that decision an appeal was taken.

The applications for patents in those three cases were very crude. I had nothing to do with the drawing of the applications, but it is apparent by a mere glance that there was an utter failure to comply with the requirements of the Federal statutes in making those applications. There are certain requirements of the Federal statutes in cases of that kind, and there seemed to have been no effort to comlpy with them. They were filed in the Guthrie land office, and the register and receiver of the Guthrie land office, being uncertain about the matter, having previously held, just as was held in this Success Mining case, that the Government did not own the land, they sent all the papers up to the General Land Office for decision. Without anyone appearing to argue the matter, the Commissioner of the General Land Office made that decision, and from it an appeal was taken by simply forwarding a letter to the Commissioner of the General Land Office stating that the parties ap

pealed from his decision to the Secretary of the Interior. The papers then went up to the Secretary of the Interior. No one came before the Secretary to argue it, and the Assistant Secretary of the Interior affirmed the decision of the Commissioner of the General Land Office.

Mr. DYAR. Was any brief filed there?

Colonel RoOTE. I think not.

Mr. DYAR. I was wondering whether the brief which Judge Dale spoke of having been filed was forwarded to the department?

Colonel RoOTE. I believe it was. I believe that Judge Dale's brief did accourpany the papers.

Mr. DYAR. It could not have been that case, because that case came later. Colonel ROOTE. When I say the brief, I mean he had a copy of it, or the same argument.

Mr. DYAR. Have you received that brief yet?

Colonel RoOTE. I have not. As soon as I do I shall furnish it to the committee.

Now, if you will allow me to proceed: After that decision was rendered on the appeal, I learned for the first time that an application for patent had been made. When I was called into this case I was not informed by anyone that an application for patent was pending, and I knew nothing about it. I happened to be in Washington when I learned just by chance of the decision of the Assistant Secretary of the Interior. I learned that a decision had been rendered against my clients, and I was, of course, very much surprised, because I did not know that my clients had made application for patent. I thought that there was some mistake, and I went over to the Land Office and found that it was true.

Mr. DYAR. Of course, that does not affect the matter at all, because those in charge of it were acting for your clients.

Colonel RoOTE. I am not making any point of that.

Mr. DYAR. Your application for patent had been decided against you by the Commissioner of the General Land Office.

Colonel ROOTE. I have said everything that you have said was true, but there are some other facts, and I was coming to them. When I learned of this adverse decision by the Secretary of the Interior, I was surprised. My name did not appear as counsel, and I had no standing before the department. Therefore, I telegraphed to Judge Dale to file a motion for a rehearing, and he filed a motion for a rehearing before the Secretary of the Interior. After the motion for a rehearing was filed, Judge Dale and I went to the General Land Office and said to them, It seems to us that your decision against us is based solely upon the theory that the land in the bed of the Red River does not belong to the United States."

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The CHAIRMAN, What was the date of the adverse decision you have referred to?

Colonel RoOTE. That was in 1920.

The CHAIRMAN. I was wondering if it might be identical in any way with the one of May 9, 1919, referred to in the letter of the Department of Justice. Colonel ROOTE. That is the case. That is the Jusonia case. That was the first one, and the other two came later.

Mr. BURTNESS. Is the decision identical in language with the Success Mining case decision?

Colonel ROOTE. It was based upon it.

Mr. BURTNESS. The Success Mining decision is later.

Colonel ROOTE. No, sir. Whoever introduced that into the record had procured a copy

Mr. BURTNESS (interposing). The Success Mining decision is dated May 6,

1919.

Colonel ROOTE. Yes, sir. Now, upon that final decision, as I said, I telegraphed to Judge Dale and suggested to him, or requested him to file a motion for rehearing.

The CHAIRMAN. You are referring to the final decision by the Secretary?
Colonel ROOTE. Yes, sir. That was in the spring of 1920.

The CHAIRMAN. It is the one identified as the decision of May 9, 1919, and the decision was affirmed October 13, 1919.

Colonel ROOTE. Yes, sir. He had filed after that an amended application for patent, and it was the final decision on that that I am referring to. I' have that right here.

The CHAIRMAN. That is in volume 5, page 2576 of the record before the Supreme Court.

Colonel ROOTE. I have that here, but I do not see any date to it. There is no date at the beginning nor at the end. However, at any rate an amended application for patent was filed. The amended application was denied, and it was that that I learned for the first time. A motion for a rehearing was filed, and it was then that Judge Dale and I went to the Land Departmet and had this interview. I have forgotten who the officer was. It was not Mr. Finney, but it was his predecessor. I think it was Mr. Vogelsang. This was what was done: Judge Dale or myself, one of us or both of us, said, "Now, you have denied these applications really upon the ground that you claim the Government does not own the land." The officer of the Land Office replied, "Yes; that is true." We then said, "There is a case now pending in the Supreme Court in which that very question is involved, and we suggest that you let this petition for a rehearing remain in abeyance, or do nothing with it, until the Supreme Court makes its decision." They said that that would be a good plan, and that application for a rehearing is pending to this day.

The CHAIRMAN. Approximately, what was the date on which you had this talk?

Colonel RooTE. It was in 1920, about May, 1920. I was in Washington. I arrived here on the 9th of April, and left on the 9th of June, and it was between those dates. It was my first trip here on this business.

Those are the facts, if the committee please, with respect to the applications for patents.

The CHAIRMAN. That was after you were driven off?

Colonel RoOTE. Yes, sir.

The CHAIRMAN. You were driven off in January?

Colonel ROOTE. We were driven off in January, 1920, and the final action of the Land department was not until after that. Then that motion for a rehearing was filed in accordance with the practice, and that matter is pending and will until the motion for a rehearing is disposed of.

The CHAIRMAN. Before you pass from that subject, this is so closely related to it that I would like to have your comment upon this observation in the letter from the Department of Justice:

"On May 9, 1919, before any actual development was commenced on the claims, the Commissioner of the General Land Office rejected the application of the Judsonia Developing Association for a patent upon its claim 012255. The company appealed to the Secretary of the Interior, who affirmed the decision of the General Land Office on October 13, 1919. This was two days less than one month after the Burk Divide people, by the evidence of their own witnesses, actually began to drill their first well. The Interior Department then held that these lands were not open to mineral location; nevertheless the Burk