agents and officers, or employés detailed as such, are entitled to use the penalty and return penalty envelopes subject to the foregoing provisions and limitations.

H. M. TELLER,

Secretary.

DESERT LAND-FINAL PROOF.

RICHARD A. BALLANTYNE.

There is no authority for extension of time in making final proof in desert land entries. Persons who delay beyond the legal period are liable to contests for non

compliance. Commissioner McFarland to Hon. John T. Caine, H. R., July 9, 1884.

SIR: I am in receipt of your letter of the 5th ultimo, transmitting a communication from Richard Ballantyne, dated Ogden, Utah, May 30, 1884, in relation to desert land entry No. 95, made at Salt Lake City, Utah Territory.

Said entry was made by Richard A. Ballantyne, June 5, 1877, upon the NW. of SW. 4, W. of NE. and W. of SE. of Sec. 12, T. 5 N., R. 2 W.

In said communication Mr. Ballantyne, who is the father of the entryman, states that the water for the irrigation of said lands must be taken from Weber River, and that a canal 9 miles in length and 20 feet wide at the bottom, has been constructed at great expense for the purpose of irrigating said and other tracts of land in the vicinity thereof; that the water had been turned into the canal, but before it reached the land in question several breaks were made therein by the water, to repair which would require probably three months' more time, which he asks may be granted to enable them to comply with the requirements of the law as to the reclamation of the land.

Mr. Ballantyne testifies to the good faith of the entryman and his bona fide efforts to reclaim the land within the statutory period, and, as the cause of his failure so to do, refers to the great difficulties which had to be overcome in building the canal, and the time lost in repairing the breaks therein above mentioned.

You state that you are cognizant of the difficulties attending the building of the canal, and that by allowing such extension of time as may be within my power, individual enterprise would be rewarded and combined endeavors to reclaim a considerable tract of land from sterility to fruitfulness stimulated.

In reply you are advised that I do not think that I am authorized by law to extend the time for making final proof and payment, and therefore decline to grant Mr. Ballantyne's request. But in view of the good faith of the entryman, his bona fide efforts to reclaim the land within the time allowed by law for that purpose, and the large amount of

money and labor expended in constructing the canal, the final proof showing a proper reclamation of the land, if submitted promptly, will, in the absence of an application to contest the entry, be accepted.

DESERT LAND-GROWING GRASS.

MILLER v. NOBLE.

Where the claimant was negligent in his reclamation, but the default was cured before contest, and a naturally worthless (alkaline) tract was converted into grassbearing land, the entry will not be disturbed.

Secretary Teller to Commissioner McFarland, July 14, 1884.

I have considered the case of John W. Miller v. Daniel B. Noble, on the appeal of Noble from your decision of November 28, 1883 (10 C. L. O., 331) holding for cancellation his desert-land entry, No. 76, for the SW. of SE. 4, N. of SE. 4, S. of NE. 1, S. of NW. 4, and the SW. 4, Sec. 28, T. 8 S., R. 8 W., Helena, Montana.

February 23, 1878, Noble filed his desert-land declaratory statement for said land, and June 15, 1880, made final proof and payment, and received final certificate thereon.

October 8, 1882, Miller filed an affidavit, alleging among other grounds of contest:

1. That the land covered by said entry was not desert land.

2. That if said land was subject to entry as desert in character, it was not reclaimed at the time final proof was made.

3. That Noble's entry was in fact made in the interest and for the benefit of one Selway.

January 15, 1883, your office directed a hearing on the said allegations of Miller, which was accordingly had in March, 1883.

After a careful examination of the evidence, I am led to concur in your conclusion that the land was properly subject to entry as desert land, and that there is no evidence to warrant a conclusion adverse to the claimant under the third allegation.

A large number of witnesses were examined on behalf of the contestant, and a still greater number for the claimant, and upon the material points the evidence is conflicting and very unsatisfactory in its charac

ter.

It appears that Noble took no action in the matter of reclaiming the land until the spring of 1880, when he procured a survey for the neces sary ditches; thereafter he constructed certain ditches in accordance with said survey, and offered his final proof June 15 of the same year. At the time of final proof no attempt had been made to cultivate or to crop any part of said claim, nor has any such use of the land been made since entry, the claimant only using the same as meadow and pasture

land; hence it becomes difficult to ascertain the result of the alleged reclamation.

Placing the most favorable construction upon the evidence furnished by the contestant, I find that the land prior to entry did produce on certain small portions thereof a little "salt" or "slough" grass, but of a very poor quality, and not worth the labor of saving, and that it is doubtful whether the side ditches, constructed before final proof, were sufficient to properly distribute water over the claim.

It is shown by the claimant that he did, in fact, have sufficient water upon the land to effect its reclamation when he made his final proof. This fact is testified to by several witnesses. In carrying out his system of irrigation, Noble alleges (and in this he is well corroborated) that he could and did make use of certain natural depressions or “water-ways" extending over the land, and hence was enabled to lead water upon each legal subdivision of the land without actually constructing ditches thereto in some instances; and that, as the result of his irrigation, the land has each year since entry been extensively used for pasture, and for such purposes is fully reclaimed.

Taking all the evidence together, it is a matter of doubt whether any system of irrigation could, except after a considerable term of years, so change the naturally unproductive quality of the soil (owing to its alkaline character) as to make it valuable for the production of any crop except grass; but I am clearly of the opinion that the land was absolutely worthless in a state of nature, and that, as the result of irrigation, it is now valuable pasture land.

Now, it is to be observed that Noble did nothing towards reclaiming the land until a very short time before making final proof; that at said time there could be seen no direct results of the irrigation other than the presence of water upon the land where it before had not been found; and that a considerable amount of ditching was done upon the land just before the hearing.

The desert-land act of March 3, 1877 (19 Stat., 377), under which this entry was made, does not specify how or to what extent land is to be reclaimed, except "by conducting water upon the same," nor does said act contain any penalty or forfeiture clause covering a failure to properly reclaim the land; but in the place of such forfeiture the purchaser is required, as an assurance of good faith, to advance twenty-five cents per acre of the price fixed for the land at the time he files his declaratory statement.

In Wallace v. Boyce (1 L. D., 54), this Department held substantially that the final proof must show that the land from a desert condition has been reduced to an agricultural state. But in the case of Babcock v. Watson (2 L. D., 19), it was said, in referring to the phrase "some agricultural crop," that it meant not only the amount of the crop, but also the kind, and that it might include grass, wheat, or barley, or such other crop as the country and climate were adapted to. Hence it would

seem that "results" might be shown after a sufficient lapse of time, even though no attempt was made to cultivate the land by plowing and sowing seed.

In this case, however, the time between bringing water upon the land and making final proof was so brief, that the effect of the water upon the land could not then be seen. Still I am of the opinion that, as the evidence shows the land to have been actually reclaimed, judging from the "results" existing before the contest was begun, the entry should not be disturbed.

It is to be noticed that the entry was made in June, 1880, and that it remained unassailed for more than two years. Under such circumstances I should hesitate to cancel an entry except upon the most convincing evidence of an attempt to obtain title in fraud of the law and requirements of the Department thereunder.

Your decision is therefore reversed, and the contest is dismissed.

MINING CLAIM-FORM OF LODE LOCATION.

BREECE MINING COMPANY.

The form of a lode location need not necessarily be that of a parallelogram; the formation of the mineral deposit must govern.

Secretary Teller to Commissioner McFarland, July 16, 1884.

I have considered the claim of the Breece Mining Company upon the Philadelphia Lode, mineral entry 1336, lot 486, district No. 3, Leadville, Colorado, on appeal by the claimants from your decision of August 23, 1883, requiring an amended survey of the location.

The plat of survey on file shows a location running northeasterly 875 feet, measured along the line marked "center of vein;" thence southeasterly, at a right angle with its former course, 450 feet; thence northeasterly, parallel with its original course, 175 feet. It is thus 1,500 feet in length, measured along said "center of vein," and it is 300 feet or less between the side lines. The location, which was made September 19, 1877, appears to be surrounded by other locations on all sides, its western end line being part of the east line of lot 487, and its eastern end line lying within the limits of lot 474 and parallel with the former.. A few feet south of the center line of the location, and at its western extremity, is the discovery shaft, and a second shaft appears some 600 feet to the eastward, being a few feet north of said center line. There appears to have been no discovery of mineral elsewhere in the location. Affidavits set forth that the underlying mineral is found as a comparatively level deposit, irregular in form, in no wise resembling a fissure vein, and not capable of being traced by its outcroppings.

Your decision holds that, "as the peculiar conditions do not exist that would make such a location satisfy the intent of the mining act,

it will be necessary to amend the survey so as to conform to all the requirements of the statute, Section 2320, Revised Statutes, as construed by this (your) office, to wit: A lode claim must be to all intents and purposes essentially a parallelogram." Such a construction should be founded on the reason of the thing, or on the clear intent of the statute. As to the former, I fail to perceive any reasonableness in the requirement of a parallelogrammic form. If a fissure vein deviates literally at an angle, it is reasonable, as the primary purpose of the statute is to grant the mineral, that the location should deviate with it. If the mineral is not deposited in a fissure, but in irregularly-shaped masses, as in this instance, then, as it can in no wise affect the interests of either the United States or adjoining locators whether any given L-shaped lot be covered by one or by two locatons, it is unreasonable to hold that it shall not be embraced by one location.

Turning to the statute referred to, it reads, that "a mining claim. located after the 10th day of May, 1872, may equal, but shall not exceed, 1,500 feet in length along the vein or lode," and that "no claim shall extend more than 300 feet on each side of the middle of the vein at the surface." It is apparent that the purpose of these provisions is to limit the dimensions of the location, and not to prescribe its shape. It is to be not more than 1,500 feet long, and not more than 660 feet wide. The point of measurement selected is the "vein," and if the measurements be made along and from the middle of a vein which departs literally from its course at a right angle, it is obvious that the statute is satisfied. Precisely the same quantity of land and of lode is appropriated by an L-shaped as by an 1-shaped location, where the length and width are determined from the middle of the vein.

66

"There is no language in the act," say the court in Wolfley v. Leb anon Mining Company (4 Col., 112), "that requires the diagram to be in the form of a parallelogram, or in any other particular form." I will go further and say, that the language of the statute precludes the conclusion that it contemplated a parallelogrammic location. The requirement of such a shape might be inferred if the language had been no claim shall exceed 1,500 feet in length by 600 in width;" but the introduction of the provisions requiring a measurement of length "along the vein," and of width from "the middle of the vein," plainly points to a reason for the selection of the central line of the location instead of the side line, and that reason must have been the possible tortuous course of the vein. There could be no practical purpose in selecting the middle of the vein as the place of measurement, except to provide for an appropriation of the same quantity of surface by a deflecting as by a straight location.

Since the statute authorizes an L-shaped or other irregularly-shaped location in the case of a fissure vein, it must authorize it in the case of a horizontal deposit, such as is found in this case, if the reason of the thing does not forbid. That such a deposit is within the meaning