letter from them and they had asked him to look into it for them, and he asked for five days time in which to file something, after the argument, and I believe he did file a brief for them. But they did not appear until the very last day.

Mr. MACEY. I would like to make one comment here. The other day, at this hearing, somebody referred to the Denson group of claimants as claim jumpers.

Mr. LARSEN. As what?

Mr. MACEY. As claim jumpers. I do not think they can be classed as claim jumpers. I am sure Mr. Roote represented them before the Supreme Court. I have read you Mr. Denson's statement and I will attempt to show, very soon, that I think under the law they are not claim jumpers; that they came in like everybody else, in good faith, applying for these lands.

The CHAIRMAN. Did they develop any oil?

Mr. MACEY. The Denson group never got a well down. They erected, I should say, in the various stages-there were six derricks destroyed or washed away and they finally, in the end, turned over four derricks in good condition to the receiver.

The CHAIRMAN. Did they start to drill?

Mr. MACEY. I do not think they got a drill on the ground.

The CHAIRMAN. They got the derricks up?

Mr. MACEY. The erected derricks and houses and were making surveys. And I would say, in that connection, that these claims extend, the larger portion of them, to the township west; not this township that has been discussed here so much, but in the township west where, at the present time, it is an unproven, wildcat field. There is a report that some oil has been found in Texas, a few hundred yards from the Colony Bluff properties in the middle of that township. What it is, I do not know at this time.

Mr. VAILE. Was oil developed by the receiver on land occupied by the derricks of the Denson group?

Mr. MACEY. I think it was. I could not state positively; I do not know just where the receiver's wells have been located.

The CHAIRMAN. What is the entire acreage of the Denson holdings?

Mr. MACEY. Of these 45 claims, I suppose about 2,000 acres, as a rough guess. Mr. DYAR. Perhaps you could tell from that, whether there are any of the receiver's wells located on the Denson claims [handing map to Mr. Macey]. Where that bridge runs out, those wells up in there were mostly put down by the receiver.

Mr. MACEY. I find one producing well here, north of the medial line in section 8, and there are some others here that are south. Whether these wells on the south side are on this red tract, claimed by the Pacific Wyoming, or the light-colored smaller tract claimed by the Denson group, or the Burk Divide, I can not tell from the map, the scale is so large. But I should say there was at least one well, possibly two, on land claimed by the Denson group of claimants, put down by the receiver after they left.

Now, Mr. Chairman, I have merely mentioned these equities of these people and just what they did. The principal object of my being sent here was to attempt to make a distinction between the different bills pending before this committee. Before I leave the subject of the equities, however, I will state that it has been my judgment at the time this matter was first called to my attention, that the Texas people had no equities in this matter whatever.

I overlooked, I suppose, the fact that the assignees of the original Texas claimants were innocent purchasers, possibly, for value, because I heard a gentleman, Mr. Fitch (?) from Pittsburgh, make a statement they bought a lease from Sam Sparks and had gone ahead on the faith that they had a good title and spent their money and lost it. But when I was first asked the question, I said that the boundary between the two States must be the south bank of the river, because of the Greer County case which I had known of for years, and I did express that opinion to my clients; that is,

it was the Greer County case which was the basis for my stating I thought the Texas people had no equities; in other words, that the treaty was rather plain and was subsequently construed by the Supreme Court of the United States in the Greer County case, and that that settled the matter; there was nothing else to do. Now, if you gentlemen in Congress pass an act, you may be in doubt about some portion of it; but after the Supreme Court has construed it, you could not be in doubt.

The CHAIRMAN. Just assuming there were no placer mineral claims at all, but it was a matter between the Government and the Texas claimants, nobody else went on that land but the Texas claimants: In view of the decision of the Supreme Court of Texas in 1897, saying that the decision in the Greer County case was obiter dicta, and in view of the opinion of their attorney general that this land was Texas land, would you consider that the Texas people acted in good faith when they went on the landin the ansence of any other facts?

Mr. MACEY. Morally, yes; legally, no.

Mr. DYAR. Mr. Chairman, may I make a suggestion? It is not my impression that the Texas Supreme Court, in the case of Persons v. Hunt, subsequent to the Greer County case, said it was obiter dicta. If I was so understood to say that, I did not intend to unless you have read that decision yourself.

The CHAIRMAN. That is what they claim.

Mr. DYAR. The Texas people generally claim that:

The CHAIRMAN. You set it forth in your letter.

Mr. DYAR. The Texas people generally claim that. I do not think I said the Texas Supreme Court in its later decision said it was obiter dicta, but some of the Texas lawyers who gave opinions did.

Mr. MACEY. I will state this, Mr. Chairman: On the condition of the facts I have heard recited before this committee, if there were no other claimants but the Texas people it would appear to me that if the Government is going to dispose of this land to somebody to drill it on a royalty basis for the Government that the people who had gone in there and spent the money should have the preference right there over some absolute stranger to the situation.

Mr. BURTNESS. To that extent, if I understood you correctly. if there were no other claims except the Texas claimants, you would feel their claim should then appeal to the conscience of Congress as to whether they were in good faith?

Mr. MACEY. As against strangers. You get up against this question: This land is going to somebody; will you give it to the man who has sunk a well-say he did not have a legal right, but he was there in good faith, will you give him a preference right, or will you give it to Mr. A, who never heard of it before? I think you should at least give it to the man who has a moral right.

The CHAIRMAN. In case, then, of a conflict between two claimants, what would you do?

Mr. MACEY. Two men with conflicting claims?

The CHAIRMAN. Two men honestly claiming.

Mr. MACEY, You would have to determine the question, first, if there are conflicts. The CHAIRMAN. We are assuming two men are honestly claiming the same piece of land, which frequently happens in life. What would you do there?

Mr. MACEY. I would do what the chairman of this committee has suggested-refer the matter to some judicial tribunal to settle it and determine the rights and equities in the conflicts and act accordingly.

The CHAIRMAN, Would you lay down any guide for the tribunal?

Mr. MACKY, I would not.

The CHAIRMAN. Do you mean by that that you favor this clause from the oil leasing act?

Mr. MACKY. That clause in the oil leasing act, it seems to me, is very fair. That is the only subject I wanted to discuss here; that is what I came down here to do.

I had a different clause from that clause. We brought that matter up and I have studied that situation very carefully in connection with the situation existing in this

case.

Now, I want to go back briefly, gentlemen, to the mining laws and read one short opinion, which is the law. Under section 2320--by the way, just before I do that, in connection with the question of whether or not these people were in good faith in thinking that the mining laws applied to that country down there, I want to state that the Interior Department has published, for years, the United States Mining Laws. They have got the list in there [indicating]; they have every law that repealed the mining laws in there. They have the repealing acts in here as far as Kansas, Missouri, and Alabama were concerned; but the Government has never mentioned in this circular, to date, the fact of the Oklahoma act of 1891, which the Supreme Court says was a repealing act so far as Oklahoma was concerned. The Government has carefully concealed that act from the public, which was in section 16 of the Indian appropriation bill.

Mr. LARSEN. Do you mean to say the Government did that intentionally?
Mr. MACEY. No: certainly not.

Mr. LARSEN. You said they had carefully concealed it.

Mr. MACEY. Not intentionally; but I assume the man who prepared the circular did not find that section 16 of the Indian appropriation bill; neither has any other lawyer in the country. That is another reason why the people did not know about the law.

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Now, referring to the mining laws, section 2320 uses this language: "* No location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located."

Mr. SMITH. Just read that again, will you please?

Mr. MACEY (reading). That no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located.

Until you have made the discovery of the mineral, you have not got a mining claim. They carried that into the regulations, on page 40, and said:

"No lode claim shall be located until after the discovery of a vein or lode within the limits of the claim, the object of which provision is evidently to prevent the appropriation of presumed mineral ground for speculative purposes, to the exclusion of bona fide prospectors, before sufficient work has been done to determine whether a vein or lode really exists."

That has always been the law.

Mr. VAILE. As to lode claims?

Mr. MACEY. As to mining claims, all mining claims. It applies to them to-day. Following that, we find that people did go and stake our mining claims and located them—that is, recorded them in the county recorder's office, without discovery; and if they maintained their possession, their possessory rights, up to the time of discovery and you did not take any action to avoid their claim, the courts and the department have held that the discovery would relate back to the date of location.

Here we have a placer claim where, in every instance, or in many instances, not all of them some of these claims only involve two-eight people located a placer claim of approximately 160 acres. One person can locate 20 acres; two can locate 40 acres, and so on up to an association of eight can locate 160 acres. But they can not transfer to one person or to a corporation prior to discovery and take more than the law would allow to one person, which is 20 acres. If they had transferred prior to discovery, as was held in the Yard case and in this case I am going to read, they would lose out. Further, they could not do that to defeat any intervening adverse claims. I do not know what has been done in these particular cases before this committee. I suppose that in some cases they have transferred to the corporation prior to discovery. I wish to refer to the Burk Divide case. Counsel here stated that they had a contract,

some kind of a contract, with the locators; some contract which he claimed was on a quit-claim deed blank form.

The CHAIRMAN. You were going to read a decision there. Would you mind doing that now?

Mr. MACEY. All right. This is a decision in 39 L. D., 460.

The CHAIRMAN. You are going to cite a decision that the claim, before discovery, can not be assigned?

Mr. MACEY. Yes. This decision in 39 L. D., 460, is the Bakersfield Fuel & Oil Co. case.

The CHAIRMAN. What is the date of it?

Mr. MACEY. It is dated January 19, 1911. It is two pages only.

The CHAIRMAN. I suppose that is to the effect it can not be done?

Mr. MACEY. This decision holds could I just read this to the committee? It is only two pages.

"The Bakersfield Fuel & Oil Co., a corporation

The CHAIRMAN. If that is a decision holding it can not be assigned, I think the mere statement of it would be sufficient.

Mr. MACEY. This decision holds this, that the discovery of mineral is the one absolutely necessary prerequisite to initiate the title to mineral lands on the public domain. Until discovery is made, the so-called locators hold their possession by sufferance and not by right. Until discovery is made, they hold no interest in the land and have nothing to convey.

The CHAIRMAN. What do you say to the act of March 2, 1911 (36 Stat. 1015)?

Mr. MACEY. The act of March 2, 1911, was an act passed following the decision of the yard case in 38 L. D., 59, apparently to relieve certain persons who had not complied with the law. That act says people who heretofore have made these locations and assignments before discovery. It validates them. It is a remedial act, pure and simple. That act says:

"That in no case shall patent be denied to or for any lands heretofore located or claimed under the mining laws of the United States containing petroleum, mineral oil, or gas solely because of any transfer or assignment thereof or of any interests therein by the original locator or locators, or any of them, to any qualified person or persons, or corporation, prior to discovery of oil or gas therein, but if such claim is in all other respects valid and regular, patent therefor," etc.

That was a remedial act, and in this decision I was going to read here the department recommended this remedial legislation. The people came down to Congress who had got into that difficulty-I suppose they had gone ahead and spent a lot of money on their claims and then found their titles were defective-and Congress came in and validated their titles.

"But it is pressed upon our attention that locations are frequently made without discovery of mineral and that upon discovery the claims relate back to the date of location. It is true that the department often recognizes the validity of such locations by relation, but the doctrine of relation has never been invoked to the disadvantage of intervening adverse claimants, nor to permit any one to secure more land in an indirect method than he could directly."

And they refer to the case that went to the Supreme Court. In the case of Miller v. Crisman, which went to the Supreme Court, the department says that—

*

a careful and critical examination of the opinion of the Supreme Court of the United States convinces the department that that court did not intend to and did not adopt the doctrine laid down by the Supreme Court of California. There was no suggestion in the opinion that would warrant any such conclusion. It turned upon another point, that the intervener had not made such a discovery as would entitle him to protection."'

So that he was thrown out and the other question was passed upon. Then the decision says:

(6* * * in view of the situation existing, the department has already called the attention of Congress to the facts and recommended remedial legislation in favor of those bona fide locators who have diligently prosecuted their work to fruition.” And that was the cause of the act of 1911 to which you refer as being passed. Now, the legal point I make here is that if a person on the Red River, or any other place, locates a placer claim of 160 acres, and, the way the law is construed by the department, prior to discovery transfers to one person, he has two conditions confronting him: First, he can not take but 20 acres; second, if somebody else, knowing he has transferred to some other person, which is without the pale of the law, comes in and does what he has a right to do under the law-filed an adverse or conflicting claim— he has a right to protection; and, under this decision, they can not defeat an intervening adverse claim. I have made inquiry since I have been down here of the legal division of the Interior Department, to know whether there was any decision in any way modifying the decision in the Bakersfield Fuel & Oil Co. case, in 39 L. D., 460, and I was advised there had been no decision modifying it; that it was the law to-day and it was their construction of the law.

Now that decision is the one that section 2 of this bill, H. R. 13475-
The CHAIRMAN. Which bill?

Mr. MACEY. Bill H. R. 13475—would not recognize any legal intervening adverse claim, anywhere on this river which came in following the mining laws, and the construction thereof as laid down in 39 L. D. 460. This section would legislate them out of existence.

The CHAIRMAN. To what language do you refer?

Mr. MACEY. I refer to this:

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*

* * *

* Leases and permits under this act shall be granted to the assignees or successors in interest of the original locators or orignial claimants in all cases where the original locators or original claimants have assigned or transferred their rights. In every case where there shall be any conflict or contest on account of overlapping claims the said conflict or contest shall be determined upon competent evidence, and in every such case the land in conflict shall be granted to the person or corporation that in good faith first possessed and claimed the land and maintained such possession until dispossessed by judicial process or otherwise.”

Mr. BURTNESS. To be specific, is it your claim that some of these people (take, for instance, Varner and his associates, and Crane and his associates) did in fact assign their interest prior to discovery? What are the facts, as you claim them to be?

Mr. MACEY. I do not know what all of these people have done and as to what the Burk Divide did. I only know about the Mellish claims from what Mr. Green said here. But I take the facts from the hearing before the Senate committee on September 5, 7, and 12, where Mr. Roote was addressing the committee, and he stated:

"These locators, after having located the property and started to get ready to drill wells, encountered some financial difficulty. They did not seem to realize that the drilling of wells was such an expensive thing as it proved to be. They conveyed the property to three small companies known as Company No. 1, Company No. 2, Burk Divide Nos. 1, 2, and 3-one claim to each company, reserving a royalty of 25 per cent of the oil.

"Subsequently some Indiana gentlemen became interested in these three companies, and after I was called into the case I advised them to form a corporation."

As he says here, these locators conveyed the property, and note the word "conveyed.” He says they conveyed the property to three small companies. This committee can draw its own conclusion as to the meaning of the word "conveyed;" I do not know. He continues: