so long as it is kept up in accordance with the mining law, segregates the land therein from the public domain and confers an exclusive possessory right upon the locator. St. Louis Min. & Mill. Co. v. Montana Min. Co. (171 U.S. 650, 655); Clipper Min. Co. v. Eli Min. Co. (194 U.S. 220).

In the event that an applicant under other laws seeks to enter or select the land, it is manifestly necessary that the evidence of its condition as to prior occupation and appropriation should be furnished by him. Kern Oil Co. et al. v. Clarke (30 L.D. 550, 566).

The applications and proofs of the homestead entryman are, however, ex parte, not adversary. Washington Securities Co. v. United States (234 U.S. 76, 79). If he misrepresent the facts which it is his duty to disclose, and obtains a patent based thereon, it may be set aside in equity at the suit of the United States; Colorado Coal & Iron Co. v. United States (123 U.S. 307), and, if there was a preexisting valid mining location on the ground patented to the homestead settler, the patentee may doubtless be declared a trustee of the mining ground for the benefit of the owner thereof at the suit of the latter. Costigan on Mining Law, 87. In such a case the courts of Arizona, Kansas City M. & M. Co. v. Clay (3 Ariz. 326, 29 Pac. 9). Old Dominion Copper M. Co. v. Haverly (11 Ariz. 241, 90 Pac. 333), and the courts of California, Van Ness v. Rooney (160 Cal. 131, 116 Pac. 392), Brown v. Luddy et al. (9 Pac. (2d) 327), have gone so far as to hold that the owner of the mining claim can collaterally attack the homestead patent and have it set aside for lack of jurisdiction of the Land Department to issue it.

An affidavit in conformity with Circular No. 738, prima facie establishes that the land applied for is not occupied or appropriated under the mining laws, and if the entry is regularly allowed, the burden will be upon the mineral claimant to show the contrary, and this showing is not deemed to be made unless the mineral claimant established a prior existing location perfected by discovery, or a mining location in the actual possession of the claimant, who is diligently engaged in the search for mineral at the date of the inception of the stock-raising entry. Ainsworth Copper Co. v. Bex (53 I.D. 382); United States v. Hurliman (51 L.D. 258).

If the applicant shows compliance with the applicable law and regulations, allowance of the entry is not erroneous because of the existence of matters which would have rendered it invalid, but which did not appear. James R. Crawford et al. (53 I.D. 435), decided August 6, 1931, and cases there cited.

Tested by these rules, the SENE Sec. 31, being free from record appropriation and contest, designated as stock-raising land, and a sufficient affidavit under Circular No. 738 having been filed, its allowance was regular and the entry was prima facie valid.

A more complicated situation is presented as to lots 9 and 10. The requested exclusion of certain mining claims was an admission by Roos of their present existence, but not necessarily their validity. Section 37 (c) of the mining regulations forbids the allowance of an agricultural claim for any portion of any lot, or legal subdivision of 40 acres, where there is no approved survey of the mining claims intruding therein, and even where there is such an approved survey, it requires evidence of the mineral character of the claims whose segregation is sought as a basis for their segregation and the allotting of the residual area. It directs that in the absence of such a showing the "original lot or legal subdivision" shall be subject to agricultural appropriation only.

As the applications of Roos for lots 9 and 10 disclosed no basis for segregation, they were mere applications for indefinite fractions of a subdivision, incapable under existing conditions of definition in areal extent and location, and while they existed in that form were not the subject of allowance. The action of the Commissioner in returning the applications for allowance as to the whole lot in each instance, including land that Roos did not ask for, and disclaimed intention to hold, and to which the Commissioner attempted to attach some understanding or condition that patent would not issue until a segregation plat was prepared and final certificate conformed thereto, has no warrant in law and was entirely without legal effect.

On allowance, the entries carried no such condition, but the same rights as any other entry under the stock-raising law, and were subject only to the contingency to which all such entries are exposed, that someone would appear and show a better right before patent issued, as by the filing of a contest by the owner of a prior valid mining claim. It will be noticed from the foregoing quotations from his later letters to mineral protestants that the Commissioner fully recognized that such was the effect of the entry.

Furthermore, allowance of application 041372 as to lot 10 was erroneous for the additional reasons that a contest was pending against it, and not only had no affidavit under Circular No. 738 been filed, but Roos had alleged the existence of valid mining locations thereon. As to application 036247 for lot 9, Roos's allegations were equivocal and inconsistent, and clarification should have been required, especially as the Commissioner was aware that the land applied for was in a mineral district where there were numerous existing mining claims.

It was also clearly error not to permit the mineral claimants to proceed with their contest on the ground that it would be necessary for them to apply with diligence for patent and make final proof

thereon before the claims they asserted could be segregated, and also allowing the mineral applicants to make mineral entry in disregard of the previous homestead entries of Roos for the same land, and in further holding that the question of conflict between the entry of SENE1⁄44 Sec. 31 and the Minnie claim would be established by the official survey thereof.

The questions as to the locus of the mining claims, the extent of their conflict with the homestead entry as well as their validity, should be determined from the evidence in the contest proceedings when those questions are put in issue. The evidence should there be adduced by the mining claimant as to where his location lies. (See Southern Pacific Railroad Company, 50 L.D. 577). Manifestly, the best evidence he could produce of this character would be a duly approved official mineral survey of his claim. That survey, however, is an ex parte proceeding; "it prejudices the rights of no one, and settles or decides nothing as regards title to the claim. Such survey is not conclusive evidence, and may be objected to by an adverse claimant, and overthrown by competent testimony." Orient, Occident, and Other Mines (7 C.L.O. 82).

*

Clearly then, if a mineral claimant brings a contest against a regularly allowed entry and uses an official mineral survey of his claim as evidence of existence of conflict, the homestead entryman has the right to impeach it in the Department, if not made in accordance with law and regulations or if it is fraudulent or erroneous. It is, of course, not necessary that the mineral claimant apply for and perfect an application for patent to his claim in order to obtain and use a mineral survey thereof as evidence. Such survey, by law, is made a prerequisite to an application for patent, not the patent application a prerequisite to a survey, and instances are many where surveys have not been followed up with an application for patent. It is familiar learning that the owner of a valid mining claim need not ever apply for patent.

The possessory right and title to a mining claim, which the courts hold is a vested estate, would be held by a very insecure tenure if every person who attempted to appropriate the ground therein under nonmineral public land law could obtain patent upon ex parte proceedings and over the protest of the owners of the claim, who would not be heard because they would not apply for patent.

The rule is well settled that the local officers can neither allow an entry, receive an application, nor do any other act affecting the disposition of land after an entry of it has been allowed and while a contest for it is pending and undecided. Holt v. Murphy (207 U.S. 407); James v. Germania Iron Co. (107 Fed. 597; app. dismissed, 195 U.S. 638); Grove v. Crooks (7 L.D. 140); McCormack v.

Night Hawk and Nightingale Gold Mining Co. (29 L.D. 373). This rule has been specifically applied to the allowance of a mineral entry on lands embraced within an existing homestead entry. Elda Mining and Milling Co. (29 L.D. 279); Walter G. Bryant (53 I.D. 379). Although the entry is voidable it segregates the land so long as it remains of record. Leary v. Manuel (12 L.D. 345); Faulkner v. Miller (16 L.D. 130); Stewart v. Peterson (28 L.D. 515). It was not necessary in order to bring the controversy between the opposing claimants in this case to an issue to disregard these fundamental rules.

While the contestants had filed a sufficient contest, upon which they should have been allowed to proceed, the contestee, Roos, in his answer thereto disclaimed any interest in the ground within the Minnie and Key lodes in so far as they overlapped his application and entry, and pointed to the fact that he asked for the exclusion of the same therefrom, denying only that the Minnie claim invaded the SENE4 Sec. 31. The emphatic and definite disclaimer of interest by Roos in the area in conflict warranted cancellation of his entries to the extent of the same, and relieved the contestants in that proceeding of the burden of establishing the validity of their claims, leaving only the question of fact whether there was a conflict with the SENE1⁄4 Sec. 31, to be litigated.

The effect of the disclaimer is not affected by the fact that Roos in the same answer challenged the validity of the claims. Allegations to that effect by him became those of a protestant without interest in the controversy. As contestee asserting a private right in the lands within the Minnie and Key lodes, he stated himself out of court.

However, as has been mentioned, Roos has a protest pending in the capacity of friend of the Government, from which the charges as to validity of the mining claims was eliminated for the reason they would be determined in the Government proceeding then pending. As that proceeding was dimissed without hearing, the charges will be reinstated in full, with the burden on the protestant to establish the same. The plat and field notes of mineral survey No. 2020, of which the Department takes official notice, prima facie establish the conflict of the Minnie claim with entry 035041 as to the SE NE4 Sec. 31, and if not successfully impeached will be regarded as conclusive.

In the meantime, entries 035041, 036247 and 041372 of Roos and entry 043463 of Altman and Sullivan will be suspended to await the determination of the fundamental question, whether the Minnie and Key lodes were claimed, occupied or being worked at the time Roos filed his applications affecting the same.

As to mineral entry 043464, the so-called protest of Roos against it is found to be no more than a petition that the Government institute proceedings against it. In view of the favorable report of the field service thereon, and that no cancellation of any entry of Roos is involved by permitting the entry to stand, the petition is denied.

The decision of June 28, 1932, is modified to the extent herein indicated, and the motion to dismiss the pending proceedings is Denied.

LEASE OF PUBLIC LANDS TO THE CITY OF ANCHORAGE, ALASKA, FOR AIRPORT PURPOSES

AIRPORTS

Opinion, September 19, 1932

RAILROAD LANDS

TOWN SITES-WITHDRAWAL-ALASKA. Neither the provision in the Alaska Railroad Act of March 12, 1914, author. izing the withdrawal of lands along the line of the road for town site purposes nor the Executive order under which the withdrawal for the Anchorage town site was made contained any specific reference to airports or aviation fields, and where lands withdrawn pursuant to the Executive order were patented to the city of Anchorage for airport purposes such conveyance was based upon the implied authority derived from the term "for other public purposes " contained in the order of withdrawal. AIRPORTS-LEASE.

With respect to any express or implied authority to grant rights in or to dispose of public lands for airport purposes under general provisions of the public land laws, it is plain that it was superseded by the act of May 24, 1928, under which rights for airports thereafter sought were to be acquired. AIRPORTS-LEASE-PATENT-LAND DEPARTMENT JURISDICTION.

The act of May 24, 1928, authorizes the leasing only of public lands for air port purposes, and the Land Department is without authority to cancel a lease issued thereunder and to issue a patent in lieu of the lease. FINNEY, Solicitor:

Pursuant to the reference of the Assistant Secretary of September 6, 1932, I have considered the question submitted in the letter of the Acting Commissioner of the General Land Office, dated September 2, 1932, regarding the authority of this Department to revoke the lease of certain lands granted to the city of Anchorage, Alaska, for use as a public airport and grant absolute title to the premises involved.

The facts and questions are stated in the Acting Commissioner's letter as follows:

The city of Anchorage, in correspondence herewith addressed to the Assistant Secretary of the Interior, requests that it be given absolute title to Tract 32, 140.24 acres, in the Fourth Addition to Anchorage. Said tract was leased to