Gen. 851. The formula for computing overtime compensation under section 2 of the act of May 7, 1943, is the same as was provided under joint resolution of December 22, 1942, 56 Stat. 1068, and the regulations of the President issued thereunder, Executive Order No. 9289, dated December 28, 1942. In decision of March 30, 1943, 22 Comp. Gen. 926, it was held (quoting from the syllabus):

Under the overtime and additional compensation act of December 22, 1942, and Executive Order No. 9289 issued in connection therewith, the prorated overtime compensation for one day for full time employees who regularly work a 6-day, 48-hour week and who are paid on a per diem basis for every day in the year except Sundays should be computed by multiplying the basic daily rate by 313 (365 less 52 Sundays) to determine the equivalent annual rate, which rate should be divided by 360 to ascertain the daily rate for overtime purposes, and such daily rate should be multiplied by one and one-half (the overtime rate) and that amount multiplied by 52 (weeks in a year) to determine the per annum overtime rate, from which the daily rate of overtime compensation is obtained by dividing the said per annum overtime rate by 313. 22 Comp. Gen. 868, amplified.

Compare 23 Comp. Gen. 13.

When work is performed on Sunday in addition to the regular workweek of the employees, overtime compensation is payable, not on a prorated basis but on an actual time basis. 22 Comp. Gen. 778. Of course, overtime compensation is limited to an "employee's basic rate of compensation not in excess of $2,900 per annum" (quoting from the statute), which in the first case presented, would be divisible by 313 days per annum, or $9.27 per diem. The additional overtime compensation for Sunday would be one and one-half times $8.05 (1/360 of $2,900 per annum). 22 Comp. Gen. 953.

Accordingly, the computation in the first case presented, that of Charles W. Meloney, appears to be correct.

However, the contract in the second case presented, that of Ralph David Moyer, appears to require work on each calendar day of the fiscal year 1944, which contains 366 days (February, 1944, containing 29 days). It being understood that the contract salary rate of $25 per diem is not a division of $9,000 per annum (the maximum salary rate prescribed by the Classification Act, 42 Stat. 1488) on the basis of 360 days per annum as required by the act of June 30, 1906, 34 Stat. 763, but is, rather, a per diem rate authorized by law independently of the Classification Act, there would be applicable in computing the overtime compensation in that case the following rule stated in the decision of February 10, 1943, 22 Comp. Gen. 783 (quoting from the syllabus), except that 366 days during the year should be substituted in lieu of 365 days used in the formula:

Under the overtime act of December 22, 1942, and Executive Order No. 9289, issued in connection therewith, overtime compensation for full time employees who receive per diem compensation for every day of the year should be computed by multiplying the present daily rate by 365 to determine the annual rate, which should be divided by 360 to ascertain the daily rate for overtime purposes, and such daily rate should be multiplied by one and one-half (the overtime rate) and

that amount multiplied by 52 (weeks in a year) to determine the per annum overtime rate, from which amount the daily rate of overtime compensation is obtained by dividing the said per annum overtime rate by 365.

Hence, on the basis of the rule just stated, it can be seen that the computation in the case of Ralph David Moyer is not correct.

The circular letter of December 15, 1943, forwarded with your letter appears correct for application to employees who are required by their contracts to work only 313 days per annum, including Sundays, but the formula would not be applicable to the case of Ralph David Moyer and similar cases.

(B-36287)

PUBLIC LAND-MINING CLAIMS-RIGHTS OF LOCATOR AND
GOVERNMENT

The locator of a mining claim may have any one of three possible estates in the land: (1) the right of exclusive possession and enjoyment of the premises, good against all the world including the United States-although mere location does not operate to divest the United States of either the legal or equitable title to the land; (2) if the locator applies for a patent and pays the purchase price for the land he becomes the equitable owner thereof with legal title being held by the United States in trust for him; and (3) if the locator secures patent to the land, he is vested with the perfect legal title in fee simple absolute.

As the locator of a mining claim within a forest reserve is entitled to the exclusive right of possession and enjoyment of the area within the boundaries of the claim under section 2322, Revised Statutes-although mere location does not divest the United States of either legal or equitable title-the proceeds derived by the Government from the sale of peat, removed from the land with the locator's consent and prior to the issuance of a patent may be paid to the locator upon the issuance to him of a patent-which relates back to the location and vests in the locator title to the land in fee simple absolute. Acting Comptroller General Yates to L. Beaman, Department of Agriculture, February 21, 1944:

Reference is made to your letter of August 6, 1943, as follows:

The enclosed claim of the Pandora Metals Company for $1,249.90 has been presented to the undersigned for certification as Authorized Certifying Officer. The claim is based on supplement to agreement A2fs-4353, between the company and a representative of the Forest Service, which is on file in the General ACcounting Office. The circumstances in connection with the transaction were: (1) In the development of a placer mining claim within the National Forest it was necessary to remove the overlying peat; (2) claimant desired to sell the peat, but in the absence of perfection of title and because of the possibility that title might not be perfected, was not permitted by the forest officer to sell the peat; (3) with consent of the claimant, contract A2fs-4353 was entered into with the Mountain Peat Company, and under agreement (memorandum of understanding) dated July 6, 1938, the Forest Service agreed to hold collections in Special Deposit Account, to be paid to the claimant upon issuance of patent to the mining claim or to be transferred to Miscellaneous Receipts should claim not be patented; (4) the collections from the sale have been held in Special Deposit Account of G. F. Allen, Denver, Colorado, Symbol 891-818 as provided in the agreement; (5) patent issued March 5, 1943 to the Pandora Metals Company for the mining claims from which the peat was sold; (6) peat to the approximate value of $1,249.90 was removed prior to March 5, 1943 and none thereafter. It might be mentioned incidentally that the peat would not have been sold by the Forest Service without

the claimant's consent and in that event claimant would have possessed the peat at time of patenting the claim and thereafter could have disposed of it by sale or otherwise.

Your decision is requested as to whether the account may be certified for payment to the Pandora Metals Company.

Under contract No. A2fs-4353, dated July 6, 1938, referred to in your letter, the Mountain Peat Company agreed to purchase and the United States agreed to sell the peat from an area of about 35 acres within the Roosevelt National Forest. Payment for such peat was to be made at certain specified rates to the Regional Fiscal Agent, Forest Service, Denver, Colorado, "to be placed to the credit of the United States." Also, it is provided that the area from which the peat was to be removed by the purchaser would be definitely designated on the ground by a Forest officer and that title to all the peat sold in accordance with the agreement would remain in the United States until it had been paid for and designated for removal. Sundry conditions governing the manner of operations under said contract are set out. Moreover, there was furnished in accordance with a provision of the contract a surety bond running to the United States as obligee, conditioned upon faithful performance by the Mountain Peat Company of the terms of the agreement.

*

The memorandum of understanding, also dated July 6, 1938, and also referred to in your letter, recites that on February 18, 1938, the Mountain Peat Company and Pandora Metals, Inc., entered into an agreement for the purchase by the Mountain Peat Company of peat "on the unpatented Pandora Nos. 1 and 4, lode mining locations owned by the Pandora Metals, Inc., under certain conditions and for a specified consideration, all as therein set forth" and that said Mountain Peat Company desired to remove peat from said mining locations prior to the issuance of patent thereto. As indicated in your letter, said memorandum provides that the Forest Service would retain amounts collected from the Mountain Peat Company in a special deposit account, subsequently to be paid to Pandora Metals, Inc., upon the issuance of a patent to the mining claim, or in the event patent thereto should not be issued, to be deposited in the Treasury of the United States as "Miscellaneous Receipts."

It would appear necessary in determining whether Pandora Metals, Inc., now is entitled to be paid the proceeds of the sale of peat covered by the instant voucher, to consider, first, the respective rights of the claimant and the United States in and to such peat at the time it was sold to the Mountain Peat Company, and then, the effect, if any, upon such rights of the subsequent issuance of the patent to the land. from which the peat was removed to Pandora Metals, Inc. In other words, the matter in issue is not concluded by the mere fact that the condition specified in the memorandum of understanding-namely, the issuance of a patent to the mining company-has been satisfied;

for, unless the mining company would have been entitled to recover the proceeds of the sale from the United States once patent to the land was secured, there would be no authority in the Forest Service officer to agree to withhold such proceeds from the miscellaneous receipts of the Treasury for subsequent payment to the company in the event of the issuance of a patent. See, generally, Section 3617, Revised Statutes.

Section 2322, Revised Statutes, 30 U. S. C. 26, provides, in part, as follows:

The locators of all mining locations made on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where no adverse claim existed on the 10th day of May 1872 so long as they comply with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations

The act of June 4, 1897, 30 Stat. 36, provides that mineral lands in any forest reservation shall be subject to location and entry under the general mining laws of the United States; and it has been held that the rights of a locator of a mining claim within the forest reserves are substantially the same as those of one who locates such a claim upon the public domain. United States v. Rizzinelli, 182 F. 675; United States v. Deasy, 24 F. 2d 108.

It is well settled that the locator of a mining claim may have any one of three possible estates in the land: (1) the valid location of a claim confers upon the locator the right of exclusive possession and enjoyment of the premises, good against all the world including the United States (Belk v. Meagher, 104 U. S. 279; Noyes v. Mantle, 127 U. S. 348; Manuel v. Wulff, 152 U. S. 505; Fuller v. Harris, 29 F. 814)-although mere location does not operate to divest the United States of either the legal or equitable title to the land (Miller v. Consolidated Royalty Oil Co., 23 F. 2d 317); (2) if the locator complies with the further requirements essential in connection with an application for a patent and pays the purchase price for the land he becomes the equitable owner thereof with legal title being held by the United States in trust for him (Teller v. United States, 113 F. 273; Pacific Coast Mining and Milling Company v. Spargo, et al., 16 F. 348); and (3) if the locator secures patent to the land, he is vested with the perfect legal title in fee simple absolute. Clipper Mining Company v. Eli Mining and Land Company, 194 U. S. 220; United States v. Mullan, 10 F. 785.

It has been ascertained from the records of the General Land Office, Washington, D. C., that the involved mining claims-Pandora Nos. 1 and 4-were located by the claimant, Pandora Metals, Inc., in 1927 and 1938; that application for patent thereto was filed on March 11, 1939; that the claims were purchased and final certificate obtained on

June 5, 1939; and that—as stated in your letter-patent thereto issued on March 5, 1943. Thus, at the time the peat was sold in July 1938, the claimant had neither equitable nor legal title to the land but only the right of exclusive possession and enjoyment. And the courts have held that while locators may use timber and other products of the land in connection with the bona fide development of a mining claim, they have no right otherwise to despoil the land of its products. Teller v. United States, supra; United States v. Deasy, supra; United States v. Rizzinelli, supra; United States v. Nelson, 27 F. Cas. No. 15864; 43 L. D. 176. Hence, it would appear that at the time the peat was sold and advance payment therefor deposited (it being noted from Schedule of Collection No. 508 in the accounts of G. F. Allen, Denver, Colorado, Symbol 891-848, that $1,500 was collected from the Mountain Peat Company on April 13, 1938), Pandora Metals, Inc. had no enforceable right against the United States for the proceeds of the sale. At the same time, it must be recognized that as locator of a valid mining claim, Pandora Metals, Inc. had the right of exclusive possession and enjoyment of the area within the boundaries of the claim (section 2322, Revised Statutes, quoted in pertinent part above); that such right was good against all the world, including the United States (see authorities cited above); and that such right carried the right of possession of "every appurtenant belonging to the realty, including timber, soil, country rock, percolating waters, and natural springs." McKenzie v. Moore, 176 P. 568. Hence, aside from the fact that "the peat would not have been sold by the Forest Service without the claimant's consent," it is doubtful, at least, whether the Forest Service would have had the legal right to do so under the circumstances. And, of course, the claimant's consent to the sale of the peat by the United States was conditioned upon the understanding that should it subsequently secure a patent to the land it would be paid the proceeds of the sale.

But, any doubt as to the present rights of the claimant to the proceeds of the sale of peat seems dispelled by the effect which the law accords the issuance of a patent under circumstances such as exist in this case. It has been held that a patent relates back to the location— or to the initiatory step in the acquisition of the land. United States v. Anderson, 194 U. S. 394; Silver Bow Mining and Milling Co. v. Clarke, 5 P. 570; Talbott v. King, 9 P. 434. This doctrine of relationback is founded upon principles of equity (see Peyton v. Desmond, 129 F. 1) and seems peculiarly for application here; where the parties involved—that is, the United States, Pandora Metals, Inc. and Mountain Peat Company-entered into an arrangement designed to facilitate enforcement of their respective rights and obligations, with respect to the sale of peat, at some future date. Of. Review 4807, dated