Wilson

This is an appeal by the plaintiff from a decree dismissing a complaint in equity. It appears from the amended complaint that prior to June 27, 1916, the appellant opened and improved a coal mine on the southwest quarter of section 34, township 22 north, range 7 east W. M., and was in actual possession thereof. On the latter date he filed in the local land office a coal declaratory statement, claiming a preference right of entry under section 2348 of the Revised Statutes (Comp. St. § 4660). On July 23,1917, he filed his application to purchase, based on his preference right of entry and his continued possession and improvement of the land, and tendered to the local land office the sum of $3,200 in payment of the purchase price. In view of the conclusion we have reached on certain questions involved in the case, we deem it unnecessary to follow the history of the claim through the General Land Office, further than to say that the claim was finally rejected by the Secretary of the Interior on June 23, 1922.

Prior to February 13, 1922, the appellee; *113 Elk Coal Company, applied for a coal lease for the west half and other portions of section 34, under the Leasing Act of February…