operating the mine," the water was used to develop the mine and for no other purpose.

Under the last clause of said statute, the existence of a quartz mill or reduction works upon the mill-site is a condition precedent to patent. Le Neve Mill-site, 9 L. D., 460; Hecla Consolidated Mining Company, 12 L. D., 75.

But such mill or reduction works is not required, when the mill-site is included in an application for a lode claim. Claimant shows, however, that his mining claim will be valueless, unless he can obtain the mill site upon which he expects to erect reduction works, and that he "requires the land contained in his mill-site for use in connection with his mine," and that he has about closed negotiations to procure the necessary capital to erect the machinery.

It is said in the Charles Lennig case (5 L. D., 190), that "the manifest purpose of Congress was to grant an additional tract to a person who required, or expected to require, it for use in connection with his lode—that is, to one who needed more land for working his lode or reducing the ores than custom or law gave him with it.

In the case of the Sierra Grand Mining Company v. Crawford (11 L. D., 338), the mill-site was used "solely for the purpose of supplying water through pipes to the companies' claims-the 'Annie P.' and others," and it was there held that such use of the land, in connection with the lode mine (being necessary to its operation), satisfies the conditions of the first clause of section 2337 of the Revised Statutes.

In the case at bar, lasting improvements have been made on the land embraced in the mill-site, indicating good faith. There is more than the mere use of water-the mill-site itself is improved and used, as above seen, in connection with the mine.

Moreover, it is shown that claimant requires the mill-site upon which to erect his mill to reduce the ores from the mine.

Claimant's good faith is manifest, and I think the evidence shows a sufficient compliance with law, as to the use and occupation of the land, to justify the issuance of patent, which is hereby directed. The decision appealed from is accordingly reversed.

PRE-EMPTION ENTRY-SECOND FILING.

GEORGE THORNILEY.

The right to make a second pre-emption filing will be recognized, where the failure to perfect title under the first is not attributable to the fault or negligence of the claimant.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, August 18, 1891.

I have examined the appeal in the record of George Thorniley from your office decision of December 18, 1889, rejecting his final pre2565-VOL 13——12

emption proof for the NW. of Sec. 33, Tp. 51 N., R. 11 W., Ute series, Gunnison district, Colorado.

His proof was rejected because it appeared therefrom that he had formerly made and abandoned a pre-emption filing for other lands, and had thereby exhausted his pre-emption rights.

While it is true that the law makes no provision for the exercise of a second pre-emptive right, and the department has very generally held that when it has been once exercised, the privilege is exhausted, yet it has made exception to the general rule in cases where great equities and peculiar merit have made such a showing that it would be grossly inequitable and unjust to deny the entryman the right of a second filing. It is based upon the principle that he has not and can not enjoy the benefit Congress intended to confer upon him, from the circumstances of the case, and that the mere manual act of filing upon a piece of land where no benefit can accrue and the entryman has acted in good faith, and is not at fault, is not as a matter of fact the exercise of the pre-emptive right.

The Department has frequently allowed a second filing where the entryman has been misled into locating upon land, believing it to be of a certain description, when, as a matter of fact, his filing papers covered worthless land and not that upon which he was located and which he intended to make his home, also where the entryman settled upon land which from its peculiar topography and upon its face would indicate that it would make a good home, and afterwards turned out to be uninhabitable on account of the failure of the water supply, or where it was unfit for the use of man or beast. Edward C. Davis, 8 L. D., 507. Latterly it has been the disposition of the Department where, through no fault of the entryman himself he has been prevented from reaping the full fruition of his filing, and has shown good faith and an honest endeavor and intent to comply with the law, and has not been able to do so on account of circumstances over which he had no control, to award him a second filing upon his making a reasonable showing that to deprive him of the right would sacrifice his privilege and defeat his acquiring title to land under the provisions of the pre emption law. As I take it, Congress did not demand impossibilities or unreasonable exections from the entryman, but did intend that every qualified preemptor might avail himself of the benefit of the law if he made a reasonable effort, and endeavors to comply therewith and exercises such ordinary care and precaution as a reasonably prudent man would under like circumstanees. Applying this rule, and the principles herein indicated to this case, I think your decision erroneous and that this entryman should be permitted to make this second filing, as prayed for. The circumstances under which he made his first filing, according to his proof, are, that he entered into an agreement with eleven other parties to settle upon that and other land and to irrigate it for the purpose of making it their respective homes. Pursuant to the agreement,

Mr. Thorniley settled upon the W. of the NE. † and the N. of the SE. of Sec. 8, Tp. 34 N., R. 8 W., Lake City, Colorado series, and for the purpose of complying with the agreement placed forty dollars worth of improvements upon that tract, whereupon the parties with whom he had associated refused to settle upon the land according to their contract and left the country.

To irrigate the land upon which Mr. Thorniley settled would require the construction of a ditch three miles long, an expenditure, or outlay of about $3,000, and he being a poor man and unable to raise this amount of money, or construct the ditch, and was forced to abandon the tract, and consequently filed for and submitted his proof to secure the tract in question with the result that his proof was rejected as heretofore suggested, on account of his having exhausted his pre-emption right by filing for and abandoning the tract first settled upon.

It seems to me, that to refuse to accept this proof, under the circumstances, is a practical denial of justice. This entryman relied in the first instance, as he had a right to, upon the agreement, believing that each of the parties thereto, for the purpose of securing a home, would observe the compact entered into, and he, in furtherance of his portion of the agreement, actually settled upon and improved the land and attempted to carry out the terms thereof, but was prevented from so doing through no fault of his, but through the default of his associates.

As I view it, this is as much a fortuitous circumstance as an act of God, a failure of water, the striking of alkali water in the sinking of a well, etc., and that the entryman should not be charged with the failure of those whose combined undertaking would have allowed him, as well as themselves, to reap the benefit of the statute and thereby avoid the necessity of abandoning the tract and attempting avail himself of the provisions of the act by this second filing. Certainly the equities are quite as strong in favor of the entryman in this case as in those cited, where the Department has recognized the right to make a second filing.

In the case of Paris Meadows et al., 9 L. D., 41, it is laid down as a rule of law that

The right to make a second filing will be recognized where, through no fault or negligence of the pre-emptor, consummation of title was not practicable under the first. In discussing the scope of the pre-emption law in the case of Hannah M. Brown, 4 L. D., 9, it is said:

When the law restricted persons, otherwise properly qualified, to “ one pre-emptive right," it meant a right to be enjoyed in its full fruition; not that a fruitless effort to obtain it should be equivalent to its entire consummation.

So when the law declares that a party having filed a declaration of intention to claim such right as to one tract of land should not file a second declaration as to another, it meant the filing on a tract open to such filing and whereon the preemptive right thereby claimed could ripen into an entry.

In this case, the question is one between the government and the entryman. No adverse rights have intervened, nobody is prejudiced by the grace of the government in allowing him to acquire title to this land. The register, speaking of the conduct of the entryman says:

This office would recommend that his entry be allowed from the fact that his action in the matter has been in the utmost (good) faith; he still owns the land and is expending money right along in improving his place and the cancellation of this entry would work great hardship to the claimant financially and otherwise.

In view of all the circumstances surrounding this filing I think the register is right and that the entry should be allowed. I am not unmind-ful of the fact that the Department, from motives of sympathy, can not swerve to an unlimited extent from the rigid rules of the law; that it is not to legislate upon these subjects to meet every conceivable emergency which may arise and that there must be some stability in order to have safety in the execution of the law, yet it has seen fit to make exceptions in the cases cited and in my judgment this one comes within the line of those decisions.

I do not think that the case of Homer C. Stebbins, 11 L. D., 45, should govern or control this. They are quite dissimilar; and as to the equities, there is no sort of comparison. Stebbins sought to make a second filing on the ground of defective eye-sight and his excitement in looking over the land at the time he made his selection, which was due to the bursting of a gun, and the Department held that it did not appear at what time time in the proceedings he received the injury which im. paired his eye-sight, whether it was at the time he made his selection or before, and that his statement was so indefinite and general in its character and his laches so great, that it did not feel warranted in requiring the law to yield to his application. In that case, whatever failure there was, was personal to the entryman himself; was his own error, or lach es. Here such is not the case. Mr. Thorniley was prevented from the consummation of his right in the first instance by a power over which he had no control, by the act and conduct of others, by circumstances beyond his reach, by the failure of those with whom he had entered into an agreement in good faith to reclaim this tract of land, and he ought not, in my judgment, to be held to answer for their conduct by paying the penalty of a forfeiture of his right in addition to the sum of money which he honestly expended in attempting to reclaim the first tract.

This case, is nearly allied to that of Edward C. Clement, 10, L. D., 338. Therein the claimant settled upon the land, being led to believe that a company then organized would bring water to a point near the land embraced in his entry, but the scheme was abandoned about two months after his filing; and the water for family use was so deep that it could not be obtained without such great expense as to make the undertaking wholly impracticable.

Upon this state of facts the government allowed Mr. Clement to

make a second filing. Certainly the equities and facts in this case are quite as strong as in that. And in the case of Frank N. Page, 10 L. D., 17, the government accorded the right to make a second filing where a failure to perfect title under the first was due to ill-health of the preemptor, in consequence of which he relinquished his first, and afterwards made a second.

Believing, as I do, that it is but just to accept Mr. Thorniley's proof and allow him to make this entry and that there is justification therefor in the precedents heretofore cited, I reverse your decision and direct that the proof be accepted.

SECTION 7, ACT OF MARCH 3, 1891-PRE-EMPTION.

KENOYER v. GARDNER ET AL.

Section 7, act of March 3, 1891, confirms an entry where the tract covered thereby is encumbered after final proof and prior to March 1, 1888, and no fraud is found as against the transferee, or adverse claim originating prior to final entry. Acting Secretary Chandler to the Commissioner of the General Land Office, August 18, 1891.

On December 23, 1883, Edith A. Gardner made a pre-emption cash entry for the NW. 1, Sec. 9, T. 130 N., R. 57 W. Fargo, North Dakota. On December 29, 1884, she mortgaged said tract to F. J. Day for a valuable consideration.

On July 13, 1887, said mortgage was foreclosed, and Day received a sheriff's deed for said tract.

On July 27, 1889, the entry woman was required by your office to publish a new notice of intention to make proof, owing to the fact that one of the witnesses who testified for her at the trial was substituted for an advertised witness. In answer to this requirement, Day filed an affida vit stating that he was the owner of said tract, and that Edith A. Gardner was not a resident of Dakota.

On September 11, 1889, your office modified the order of July 27, 1889, and permitted Day to make the new publication which was made, and on the day specified in said publication where proof would be made.

Eli Kenoyer filed a protest alleging that Edith A. Gardner had not established a residence on said tract, and maintained the same for a period of six months, as required by the pre-emption law.

On March 3, 1890, your office refused to order a hearing on said protest, and held that the protest should be dismissed.

Protestant appealed from said decision to this Department.

In considering this appeal, it will not be necessary to decide the case upon the merits of the alleged errors assigned, because the entry in question is confirmed by section 7 of the act of March 3, 1891 (26 Stat.,