Section 2348 provides that:

Any person or association of persons severally qualified, as above provided, who have opened and improved, or shall hereafter open and improve, any coal mine or mines upon the public lands, and shall be in actual possession of the same, shall be entitled to a preference right of entry, under the preceding section, of the mines so opened and improved.

Section 2351 provides that

priority of possession and improvement, followed by proper filing and continued good faith, shall determine the preference right to purchase.

In this case Garner claims a "preference right" of entry under the foregoing provisions of law, while Watkins and Ailland contend that he is not entitled to such preference right for the reason that he has not complied with the law.

The evidence is voluminous and conflicting. The declaratory statements of the parties have been filed in the local office, and are transmitted with the papers, and are therefore matters of record, and admit of no dispute. These statements are sworn to by the parties, and show that Garner filed six months before Watkins, and nearly a year before Ailland, and it is admitted that Watkins and Ailland knew of Garner's prior filing.

Garner's statement was filed February 10, 1888, alleging that he came into possession of said tract on January 20, 1888 and had since remained in possession continuously, and that he had then expended in labor and improvements on said land, the sum of $45.—that he had exposed a vein of coal by digging into the hill, six feet, said opening being eight feet wide and six feet high, and located on the NE of the SE of said section.

In this statement he was corroborated by other witnesses on the hearing, so that the evidence is satisfactory that he had "priority of possession and improvement, followed by proper filing," and to this extent that he had complied with the law. But it is contended that he did not show that "continued good faith," which is necessary to establish his preference right.

He testified that from February 6, 1888, till he offered to prove up, he either worked himself on the tract, or hired others to work for him, that he expended $400, in labor and improvements, that he opened several drifts on each half of the land, exposing valuable veins of coal, and that he had done all his means and ability would justify, that he had a farm about twenty-four miles distant, and had to earn, by work on his farm, the means to carry on the improvements on the land in question. In this testimony he is corroborated by his other witnesses.

The burden of proof was upon the protestants to show that Garner failed to comply with the law. In the opinion of the local officers, the protestants did not show this, and you concurred in that opinion. Garner's "continued good faith" has thus been established by the concurring opinions of the local officers and yourself. It is a question of fact, and it has been held that "when the findings of the local officers

have been concurred in by your office, as in this case, they are accepted by the Department, unless clearly wrong."

Darragh v. Holdman, (11 L. D. 409).

But it is contended by the plaintiffs that these findings are clearly wrong. That though claimant's possession and improvements were perhaps sufficient, if considered by themselves, in the absence of adverse claimants, but they are not sufficient in the presence of adverse claimants who show more valuable improvements and more uninterrupted possession.

It was held in the case of the State of Alabama, (6 L. D., 493–501), that

under sections 2347 to 2352 of the Revised Statutes, coal lands are subject to preemption and entry precisely the same as agricultural lands, except as to price and limit as to the amounts which may be entered.

In the case of Helen E. Dement (8 L. D., 639), it is said—

The Department has held that no fixed rule can be established which shall govern in every case that may arise relative to the good faith of the applicant. It is right and proper to take into consideration "the degree and condition in life of the entryman" in determining whether the improvements show good faith.

This principle is applicable to entries under the coal land law, or else only the man of ample means can enter coal lands. This is not the policy of the government. These lands are sold at a low price that men of moderate means may purchase them.

In United States v. Trinidad Coal Co., (137 U. S., 157-169) it is said, The right to enter such lands is given only to persons above the age of twenty-one years who are citizens of the United States, or have declared their intention to become such, and to associations of persons, severally so qualified; and each person of the former class is permitted to enter not exceeding one hundred and sixty acres, while "associations of persons", severally qualified as above, may enter not exceeding three hundred and twenty acres. Sec 2347. The object of these restrictions as to quantity was, manifestly, to prevent monopolies in these coal lands.

But the contention of the plaintiffs, if carried into practice, would tend to promote monopolies.

The "continued good faith" of Garner is an independent fact in the case, and when established, is sufficient to prove his preference right, and therefore to justify the decisions in his favor.

Your judgment is affirmed.

RULE REGARDING ENTRIES CONFIRMED BY ACT OF MARCH 3, 1891.*

Circular.

All contest cases in which entries are confirmed by the act of March 3, 1891, will be examined on motion when it appears that a copy of the motion has been served on the opposing counsel.

*See 12 L. D., 308.

Parties will be allowed five days from service within which to file ob jections to the motion if served in the city of Washington, D. C., and fifteen days when served elsewhere.

Final proof submitted during the pendency of an appeal by an adverse claimant for the land is irregular, and cannot be considered.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, October 17, 1891.

I have considered the case of J. C. Spencer v. Henry J. Brodt, upon the appeal of the former from your decision of May 1, 1890, approving the final proof of the latter for the NW. 4 of the NE. of Sec. 1, T. 102 N., R. 31 W., Marshall, Minnesota, (formerly Worthington) land district, and denying a hearing to appellant on his protest against said proof.

On the 1st of July, 1878, Spencer received a permit from the Southern Minnesota Railway Company to enter upon and improve the NE. of the section above mentioned, which included the land in controversy. He occupied the entire quarter section, and cultivated a large portion of it, under an agreement with the railway company for its purchase, up to the time that Brodt made homestead entry for the part of the quarter section in question, which was on the 26th of April, 1883. At that time Spencer duly informed Brodt that he claimed the land and of his arrangements with the railway company to obtain title thereto. Brodt did not occupy the land until the fall of 1884, when he built a small house and moved upon it with his family, under protest from Spencer, who had continued to crop the land up to that time, and up to the time final proof was offered.

Spencer was advised by the local officers, that so long as he remained in possession of the land, and cultivated and improved the same, he was secure in his rights as against any other entryman, and relying upon this information, and his arrangement with the railway company, le made no application to make entry for the land until after Brodt had done so. In July, 1885, thinking that the railway company would perhaps lose the land, Spencer applied to the local office to contest Brodt's right to make entry for it, and for a hearing to determine his own rights in the matter.

This application was denied, and upon appeal to your office that decision was affirmed by you on the 24th of November, 1883. An appeal was taken from your decision to this Department, and during the pen2565-VOL 13——27

dency thereof, Brodt gave notice of his intention to make final proof, which he proceeded to do on the 25th of November, 1889, Spencer protesting against the acceptance of the same, alleging that Brodt's settlement upon the land was not made within six months after his entry, as required by the regulations of the General Land Office, and that his entry was illegal for the reason that his affidavit was made before the clerk of the county court where he resided, and not before the register or receiv er, the case being one in which he had not established a resi dence and made improvements, and no member of his family was actually residing on the land which he desired to enter. His affidavit having falsely alleged settlement, when no settlement existed, Spencer claimed the same was void, and that consequently no application for the land had ever been made by Brodt. The local officers overruled his protest, and on the 2d of December, 1889, issued final certificate and receipt to Brodt. From that decision an appeal was taken to your office, where the same was affirmed by you on the 1st of May, 1890.

When the case was before this Department upon appeal from your decision of November 24, 1888, the question was simply whether you had or had not erred in refusing Spencer's application for a hearing to determine his rights in the land. In the decision of this Department upon that appeal, made on the 11th of April, 1890, it was stated that "if the allegations set up in Spencer's application for a hearing were taken as true, they would avail him nothing," and for the reasons therein stated, your decision denying the hearing applied for was affirmed. While that appeal was pending here, you transmitted the appeal of Spencer to your office, from the decision of the register and receiver, overruling his protest against the final proof of Brodt's homestead entry on said land, "to be considered with the other papers relating to the case." That appeal (and the papers in the case) was returned to your office, for your decision thereon, and it is an appeal from your decision rendered on the 1st of May, 1890, which again brings the case before me.

That local officers are without authority to accept final proof for land involved in a case pending on appeal, is a rule too well settled to need the citation of authorities to support it. Such action is prohibited by Rule 53 of Practice, and expressly held to be unauthorized and irregu lar by the decisions in Lehman v. Snow (11 L. D., 539); Hasket v. Cannon et al., 449; Etnier v. Zook, 452; and Wills v. Bachman, 256, of the same volume, as well as in numerous cases in other and earlier volumes of departmental decisions.

Final proof in this case having been made during the pendency of an appeal, cannot be considered and the case must be returned to the local office for new proof, after proper publication. When it is offered any person may protest against the acceptance thereof, and the ques tions presented will be properly disposed of at that time.

The decision appealed from is therefore set aside, and you will return the case to the local office for new final proof.

CONFIRMATION OF ENTRY-SECTION 7, ACT OF MARCH 3, 1891. UNITED STATES v. MCTEE ET AL.

A transferee, claiming the confirmation of an entry under section 7, act of March 3, 1891, does not occupy the status of a "bona fide purchaser" under said section if he was aware, prior to purchase, of the entryman's non-compliance with the requirements of the law.

A judgment of the General Land Office, holding an entry for cancellation on the report of a special agent, rendered prior to the expiration of two years from the date of final entry, defeats confirmation under the proviso to said section. First Assistant Secretary Chandler to the Commissioner of the General Land Office, October 17, 1891.

May 12, 1884, Frank J. McTee filed his pre-emption declaratory statement for the W. of the SW. and the W. of the NW. 4, Sec. 13, T. 31 N., R. 52 W., Chadron, Nebraska, alleging settlement May 1, of the same year. July 15, 1885, he made cash entry for the same. February 4, 1887 (less than two years thereafter), the entry was held for cancellation by your office, on report of Special Agent Carr.

Notice of this action was mailed to him by registered letter, addressed to his last known place of residence (Robinson, Nebraska), which was returned to the local office as uncalled for.

July 14, 1887, the entry was canceled, he not having applied for a hearing to re-instate the entry.

Some time subsequent to date of cancellation of entry (exact time not appearing) Sanford A. West filed his declaratory statement for the NW. of said section, which embraced the north half of McTee's entry, and a short time after this filing of West (exact date not appearing) James Wilson filed for the tract embraced in McTee's entry. He, bowever, is not insisting upon his rights (if he had any), he being a witness in support of McTee's entry.

February 15, 1888, subsequent to all the foregoing proceedings, James English, claiming to be a bona fide purchaser of the land after entry, applied for a hearing to show cause why the entry of McTee should be re-instated. His application was granted by letter of your office of March 3, 1888, and the hearing, with notice to West, was had May 8, 1888.

West, in the meantime, had published notice to submit proof on his filing, March 13, 1888, and by your said letter ordering a hearing the local officers were instructed to decline to receive the same (should it be offered), until the rights of English had been investigated.

On such hearing the local officers found that McTee had complied with all the requirements of law, and that his settlement, improvements, etc., were prior in point of time to those of West.

From this action the United States and West appealed to your office, and, by letter of April 7, 1890, you reversed the action of the register