Phillips v R [1910] HCA 60

'sketch showing the pool in the south-west corner of the land applied and also showing the supposed position of the land applied for in refer- Block A. Comtesse's application was approved of, and sometime rds the actual position of Eracootharra Pool was discovered to be in k A., and not in the land applied for by him, Sec. 19 of the Land Act (W.A.) (62 Vict. No. 37) directed (inter alia) that 'every application md which has not been surveyed shall contain or be accom- d by a sketch of the proposed boundaries, which shall be fixed wherever ible with reference to some natural or permanent artificial object, and the position of the land with reference to any lake, river, or main and also to land held by or in the occupation of any other person in ality ; and also show all permanent waterholes and springs within the applied for." Sec. 105 of the same Act directed (inter alia) that the cription furnished by an applicant for pastoral land shall be full and ilar, and shall refer to some fixed point or object which can be

Held, that the provision as to reference to land held by or in the occupa of another person in the locality is directory, and only applies to in the visible occupation of other persons and the boundaries of which + actually defined, or at least known with some reasonable degree of certain and that Comtesse was entitled to have the land applied for by him f relatively to the actual position of Eracootharra Pool which was the "natu object" contemplated by sec. 19 and the "fixed point or object" conter plated by sec. 105, but not so as to interfere with any of the app rights in respect to Block A.

Per Grfith C.J. - Where there is an apparent repugnancy between di parts of a description so that full effect cannot be given to the whole, tl proper rule is to give most effect to those things about which men are 1

Decision of the Full Court of Western Australia : Phillips and others The Crown, 12 W.A. L.R., 182, affirmed. J

prius. The facts are fully set out in the judgments hereun

Pilkington K.C. and F. M. Stone, for the appellants. Land Act 1898 sets out what an applicant must do. ' sketch of the land applied for must show the relation to s natural or permanent artificial object (sec. 19), and also to so fiaed point or object (sec. 105); also by sec. 19 the relation land held by or in the occupation of any other person im locality must be shown. Comtesse's sketch showed that land he applied for was to the north of blocks of land al granted to the petitioners who then applied for the vacant on the east and their application was approved of. It discovered that Eracootharra Pool was in the eastern por' the petitioners' first blocks of land, and not, as Com thought, to the north-west of it, Comtesse applied to haye lease rectified, by which means his block would be shifted to south-east, and take up portion of the petitioners' second bl The rule of law is that the whole of the application must

right to merely regard the fixed point and disregard the des tion of the relation to lands held by another person. What

itesse's application may have meant, it was an appli- H ©. or A. 'or land to the north of the petitioners' first blocks. a0.

Pauurs and Lukin, for the Crown. It is clear that Comtesse

ootharra Pool, though he did not know, nor did anybody its exact geographical position. The Act requires that the nt shall refer to some fixed object which can be recognized 1e Department and the description must be certain. The ries of petitioners' first blocks were not actually defined, description in relation to them would not be certain. vy referred to Minister for Lands v. Boulton (1); Martin er (2); Downing v. Howe (3); Boardman v. Lessces of Ford (4).]

wird C.J. Under the Land Act 1898 (Western Australia) °°er tions for unsurveyed land take priority according to the f their being lodged (see. 17).

19 is as follows : - " Every application for land which has on surveyed shall be for land in one block, and, except in cases to be allowed by the Minister, in the form of a rect- ith boundaries in the direction of the meridian and at mgles to it, and the proportion of depth to breadth, except specified, shall not exceed three to one, unless the x shall otherwise direct. . . . . Every application mtain or be accompanied by a sketch of the proposed vies, which shall be fixed wherever possible with reference ome natural or permanent artificial object, and show the m of the land with reference to any lake, river, or main and also to land held by or in the occupation of any other m in the locality; and also show all permanent waterholes 'ings within the area applied for."

section was in 1906 applicable to all applications for

Q) 17 N.S.W. L.R., 389. (3) 28.C.B., (N.S.W.), 75. (2) Knox (N.S. W.), 418. (4) 6 Pet., 328.

unsurveyed land whether by way of pastoral lease or by w conditional purchase, which latter might be for comparative small areas in settled districts.

Sec. 105 is as follows : - *The position of pastoral leases" the arrangement of boundary lines shall be subject to approval of the Minister; and any description furnished b; applicant for pastoral land shall be full and particular, and shall refer to some fixed point or object which can be recognized by Department." This section applies to applications for past leases only, which may be for immense tracts of country.

Before 1906 the petitioners had applied for a tract of we land situated about 350 miles from the sea coast, which is spol of as lease No. 584, and their application had been approved. The area of the tract was 403,668 acres - about 630 square mi The shape was irregular, and the distance from the ex! northern end to the extreme southern limit was about 40 mil In the extreme northern part there was a northerly extensi about 10 miles in length, and about 7 miles in width, measw from east to west. The land had not been surveyed. 1 were no fences, and there was nothing on the ground to den the boundaries. Any occupation would have been by a stock roaming over the wilderness. Most of the adjoining appears from the plans put in evidence to have also been held the petitioners.

There was nothing at that time in existence anywhere denote the actual boundaries except the sketch plan lodged the Government Department with the application, but the | I marked on that plan were as imaginary as lines of latitude longitude. They were capable of being, but had not been, asce tained. We are'told that the starting point of the description the plan was a hill or mountain called Mount Sir Samuel, dist more than 20 miles to the south of the northern limit. position of the land applied for had not in fact been located the ground.

10,000 acres, being a strip of land lying along their north boundary and now known as No. 2941. There is no doubt as

th, wherever No. 584 might turn out to be. his application was approved on 16th March 1906.

1, of the identity and actual location of which there is no bt, but its actual position with regard to the boundaries of 84 was not ascertained until August 1908. It was not oted on the Government plan, or on the sketch plan of the lication for No. 584.

On 7th February 1906 one Comtesse applied for a tract of 00 acres, now known as No. 2960, and his application was roved on 9th April. The only description given in the appli- on was a diagram, which represented a rectangular block led on the north and south by lines running east and west chains in length, and on the east and west by north and th lines 363.64 chains in length, and enclosing Eracootharra 1, which was delineated as lying near the south-western er at a distance of 40 chains from both the western and the ithern boundaries, the point of intersection of these lines being 'ked as the "start." The diagram also represented No. 2941 ining the land applied for on the south, the distance from south-west corner of the land applied for to the north-west er of No. 2941 being stated as "about 175.00" (scil. chains). 2 When a survey was made in 1908 it was found for the first e that the pool was in reality situated within the boundaries No. 584, and lay about 8 miles to the south-east of the north- corner of No, 2941.

n these facts the question for determination is: What was land applied for by Comtesse, and which the Government by ir approval of his application agreed to grant to him? The ty of the Court is to interpret the instrument of application ascertaining the intention of the parties, and for this purpose must as far as possible put ourselves in their position at time when the application was made and approved. When is done it is plain that Comtesse knew the pool, but did not jor did anyone else - know its exact geographical position ; that he knew of petitioners' applications Nos. 584 and 2941, but not know - nor did auyone else - in what precise place the

they wanted, namely, the land adjoining No. 584 to the H.C. or A.

_In that locality there isa spring or pool known as Eracootharra eee

tracts 'comprised in them lay, although he knew the gen locality ; and that he thought, erroneously, that the north corner of No. 2941 was about 2 miles to the eastward of the pr whereas it was in reality about 8 miles to the north-westward it. The description was therefore in some respect inaccurate. Mr. Pilkington contends that the reference in the sketch pl to No. 2941 should be taken to be the governing reference. See. 19 of the Statute, which I have read, requires that | boundaries shall in all cases be fixed wherever possible with refe ence to some natural or permanent artificial object, and see. 1 that the description shall in the case of pastoral leases refer some fixed point or object. 'The reference to Eracootharra complies with both conditions. Sec. 19 also prescribes that application shall show the position of the land with reference land held by or in the occupation of any other person in | locality. In my opinion this provision is directory only, so tl a failure to comply with it would not vitiate the application, : could not be taken advantage of by a rival but later applicant. - think, further, that it only applies to land in the visible ocew tion of other persons and the boundaries of which are actual: defined, or at least known with some reasonable degree o certainty. Where there is an apparent repugnancy between d ferent parts of a description so that full effect cannot be given 1 the whole, the proper rule is, in my judgment, to give most effe to those things about which men are least liable to make | mistake. (See Davis v. Rainsford (1) ). ¢ In the present case there was no room for mistake with to the fact denoted by the reference to Eracootharra Pool. was an actual visible fact. The starting point is delineat lying due south-west from it, and distant about 56 chain hypotenuse of an isosceles right-angled triangle whose sides w 40 chains long). The sketch was equivalent to a description this form :- - * Commencing at a point 56 chains south-west from Eracootharra Pool and bounded thence" &c. The reference No. 2941, on the other hand, was a reference to a provisiol plan in the Lands Department, and not a reference to any vis or known existing fact. This is the view which was adopted b

plication so far as it comprised land already included in , but was bound to give priority to it so far as it com- d land not so included. The petitioners' claim is in respect 1 application made by them on 9th July 1906, and approved September, for land which was comprised in Comtesse's ion and was not comprised in No. 584, and which the nent therefore could not grant to them. They were, in rare when they made it of Comtesse's application, but this material in the present suit, though it would be very rial if the Government had granted them a lease to the dice of Comtesse.»

not suggested that a suit can be maintained against the ment in respect of a promise to grant a lease of land which had already contracted to grant to another, that fact being m of the condition of the subject matter not known the promise was made.

Comtesse is not a party to this suit, and I do not think that performance could in any event be granted in his absence. convenience of passing upon the validity of his title with- ring him is obvious, but, as it happens, justice can be done the parties to the suit as now constituted.

oN J. It is highly necessary to keep in mind that the ion of Comtesse for a lease of the block now numbered as accepted by the Crown on 9th April 1906, three months he appellants applied for the block now numbered 3155. ay land which the Crown duly contracted to let to Comtesse ided in the appellants' application, it fails for at least ncluded part, the subject of their claim. But their claim |, as Mr. Pilkington admitted, entirely on the contention at this part was in law duly contracted to be let to them as of Block 3155. Such a contract could not lawfully be made land the subject of it had already been allotted to some- else; but they claim that Comtesse's application did not

roment and by the Full Court, and, in my opinion, is H. C. or A.

really include the overlapping part, and did not prevail over the contract with them. If, then, there was a valid contract wil Comtesse which included this part, then ex concessis the app lants' petition fails.

Turning to Comtesse's application made on 7th February 1906, which, as appears to be usual, describes the position and boun daries of the land applied for by means of a diagram, we find that it shows near the south-western corner of the land a spot marked "Eracootharra Pool," and indicates the southern boundary as 40° chains due south, and the western as 40 chains due west of that spot. The south-western corner of the diagram, approximately 56 é chains south-west from the pool, is marked "start," i.e, star point. So far therefore we may take it that Comtesse inten that his lease should include the pool; that the southern an western limits of his land should each be, by direct lines, chains from the pool, which would thus be 56 chains from their intersection at the south-western corner ; and that the boundari of his land, to include 20,000 acres, should be ascertained by measurement from the south-western corner as the commencing point. Further, he indicated that his starting point should be "about" 175 chains from the north-western corner of Block 2941. Now, all the land in the tract of country in question w: unmarked and unsurveyed. Block 2941 had been applied for by the petitioners on the third of the previous month, and the application had not yet been accepted, nor was it accepted until 16th March. The north-western corner of 2941 was therefore n yet an ascertained point. It may be taken that Comtesse

blocks in the vicinity. Assuming that he saw the applicatio for Block 2941, he would see its date and that it proposed take in an area of 10,000 aeres north of Block 584, which petitioners had obtained under lease some time previously, th western boundary of the proposed Block 2941 being a contim

hey were identifiable by any mark. Yet on the boundaries H- ©. oF A. 584, at any rate those to the west and north, the position of eos

| must depend, for the petitioners had not made the bound- pyrrzars ies of the latter referable to any fixed point or any object, nu. Grown. her natural or artificial, by which the Department could e identified it. It must be remembered that the district is miles from the sea, and about 850 from Perth by the usual route, and that all the blocks for many miles round are in purely toral occupation and unfenced. Hence a person going out to e up land would, unless he chanced upon one of the home- ds, which, of course, are many miles apart, sce no indicia of pation except perchance, here and there, some sheep. In t circumstances such a person could not do more than hazard guess at the possible corner-point of any block already let, for ance, that of No. 584. As to any block the subject of an ication not yet accepted, his means of ascertainment would 'tainly be no better. Here we have strong reason why he should the word "about" in indicating the distance of his starting i from the boundary or corner of another block. Now the inclusion of the pool is a plain physical means of ascertainment, the starting point at 56 chains south-west of it is something ich may be ascertained with finality. The distance of about 75 chains from the unascertained north-west corner of a block, plied for but unleased and depending for its position upon the eation of another and a huge block, also still unsurveyed, is erely hypothetical. Both are available as evidences of intention, nich of them is to prevail? Mr. Pilkington says we are to take hole application together; so we must. But reading the ment as a whole, is it not clear that the applicant was guided e actual physical object, which was there to be seen, and referred to the supposed distance from No. 2941 as an ional possible means of arriving at the starting point, which

mee subsequent applicants as well as himself would have own for a guess, even if he had left out the word "about" h showed it ? The pool was the dominant idea in his mind far as we can gauge his intention from what he says. He where the pool was in fact, not relatively to unsurveyed , but he did not know, for nobody knew, quite where Block

H.C. or A. 2941 was, and as to its position he made an erroneous gu : 1910. (£ he had left out all reference to it his application would have Pues been good as to all land not included in previous allocations. Zz Quicquid demonstrate rei additur satis demonstrate frustra est

'Tue Crown. : . ' His application is not to be turned from its dominant meanin; by the addition, which may be rejected as surplusage: Do v. Galloway (1), and per Parke B. in Doe v. Cranstoun (2, "Hitherto I have dealt with the matter without reference to the Land Act 1898, several sections of which were cited. I take, first, sec. 105, referring to the position of pastoral leases. Comtesse's_ application clearly satisfies this section, if it is imperative, for the Eracootharra Pool was a "fixed point or object" which the Depart- ment could not easily mistake. 'The correspondence shows that it was well known by name, and a surveyor afterwards sent o seems to have had no difficulty in locating it. Sec. 19 was much

relied on by the petitioners. It relates only to applications for : land which has not been surveyed, but of course applies to cases - where none of the surrounding land has been surveyed either The argument was upon the passage beginning with the words "Every application,' where they occur the second time, an ending at the proviso. This application did " contain a sketch of the proposed boundaries," together with the proposed starting point. Boundaries and the starting point were both "fixed . . . with reference to some natural . . . object," namely, Eracootharra Pool. The application shows the only "spring" we know of within the area applied for. But it is be argued that it is deficient in a vital particular, because the - boundaries must be " fixed wherever possible with reference... to land held by or in the occupation of any other person in the locality." The boundaries, it is said, were not truly so fixed, fo Eracootharra Pool is, as a surveyor has found, on Block 584, some miles south-east of Block 2941. On this I observe, fir' that the boundaries are to be fixed with reference to land held o1 oceupied by any other persons "in the locality," and Block 29 was not on 7th February 1906 held or occupied by anybot while it can scarcely be said that 584 was in the locality. Ne apart from the question of locality, I point out that this part of

sage is imbedded in a number of directions referring to H.C. or A. isible on the spot, viz., objects, natural or, if artificial, ee ent ; lakes, rivers, and main streams; permanent water- pyrrups and springs; and I think this part must refer only to... Grown. visibly "held by or in the occupation of" other persons in

locality, and in the absence of fences, surveyed boundaries, or hbouring homesteads, it cannot be said that there was any holding or occupation as an applicant could have dis- rned in February 1906. Thirdly, I do not think sec. 19 is erative as contended by the petitioners. I think the Minister entitled to accept an application for available land, ie., land already the subject of contract, and otherwise open to lease, if the directions of this section have not been fulfilled by applicant with exactitude. It is not to be supposed, for ice, that an application accepted by the Minister would be , if, after fixing the starting point and boundaries with refer- ce to anoutstanding tree with a distinctive mark on it, and owing the position of the land with reference to a lake or river,

nd also to the boundaries of an adjoining holding, or to the limits

the occupation of a neighbouring run-holder, it failed to show e out of several permanent waterholes or springs. To make icularity of an extreme kind the indispensable condition of a valid application would be an obstacle to the development of the ~ country, which I am sure the legislature never contemplated. But what it aimed at was an identification of the land which would able the Minister to see what was applied for, and would save _ other applicants from harassing conflict. am clearly of opinion, therefore, that neither section 105 nor C. 19 stands in the way of the acceptance of Comtesse's applica- on to the extent that it included land not already lawfully otted to others, "It is of course open to the Minister under sec. 21 (2) to refuse an application as that of Comtesse. But if he accepts it he so according to its true meaning. This application was pted without any condition or reservation, but the accept- must be restricted to that which the Minister could right- ful ly grant, and the acceptance, in my opinion, rendered complete contract the meaning of which is clearly ascertainable by refer-

ence to the ordinary and sensible rules for the interpretation documents.

In discussing the meaning of the contract I have said that th figures referring to the boundary of the then proposed Block 2941 may be rejected as surplusage. Leaving them out of con-

but so as not to include any part of the land applied for whi had already been let to others. ie

Pool. It is common ground between the petitioners and tl Crown that this spring is within the limits of the petitione lease of Block 584, and if Comtesse were a party here it is plain that he could'not have that which before his application had bee: given to others. For the same reason he cannot have a starting point south-west of the pool. But Comtesse's contract entitl , him to 20,000 acres as near to the pool as the tenure of others created before his application will allow. Though his land so' taken includes part of Block 3155, applied for by the petitione three months after the acceptance of Comtesse's application, and granted to the petitioners on 28th September following, the validity of the contract with Comtesse has the effect of exclud- ing the petitioners from the right to that part. As they place their claim entirely on the assertion of that right, their appeal

performance of, or damages for the breach of, a contract to let to them land already the subject of a similar contract made wii another person. In any case we could scarcely have enter-

died Sava thas not oper: ated to his injury. I am of opinion that the appeal should be dismissed.

O'Connor J. The appellants, in July 1906, applied under the Land Act 1898 for a pastoral lease of 40,000 acres in the Ash- burton District of Western Australia. The application describes" the land only by a sketch plan. There is no reference to any

2941 and 584, which were, at that time, approved appli- in the appellants' occupation. The starting point is indi- the north-east corner of lease No. 2941. The shape is a logram, of which the length marked on the boundary lines the acreage applied for. In September 1906 the applica- as approved, and numbered 3155. 'The land was subse- tly occupied by the appellants, who expended a substantial sum ovement upon it. The present suit was brought. to obtain ration of their right to a lease of the land comprised in application, and an order for specific performance of the ied contract to grant a lease, or, in lieu thereof, for damages. for the rights which it is contended another applicant, e, had acquired over a substantial portion of the same efore the appellants' application, the latter would, without bt, be entitled to the relief which they are seeking. The It of the present suit will therefore depend upon what are ntesse's rights. His application was made and approved months before the appellants'. Rooth J., in the Court of instance, construed his application as describing a block of adjoining the appellants' 2941 on its northern boundary If that is really the position of the land applied for, the its application No. 3155 does not conflict with it. The , however, dispute the correctness of that construction of description, and contend that Comtesse's application covers md adjoining the whole of 2941 and part of 584 on their eastern

aries, and therefore covers a substantial portion of the mts' subsequent application 3155. If that contention is as the Supreme Court have held, the appellants must fail. ourt is now called upon to determine which of these con- ing constructions is correct. There is only one way in which estion can be settled, and that is by determining what is right interpretation of the description in Comtesse's applica- All the material parts of the description are contained in sketch plan, which appears on the application. It shows the ants' 2941 adjoining their 584 on its northern end, and it vs the land applied for in the form of a square, as adjoining northern boundary of 2941, overlapping that boundary, in a

H.C. or A. due westerly direction, from the north-west corner of 2941 1910. about 175 chains to a point which is marked as the starti hae point of the description. But the starting point is also fixed ie owst another way. A natural feature, Eracootharra Pool, is marked in the south-

west corner of the square, its distance from the southern bounda and from the western boundary of the square being so marke links as to enable the starting point at the south-west corne be definitely fixed on the ground, in relation to the pool. other words, a surveyor on the ground with the application, ing located the pool, would have no difficulty in fixing starting point of the application. Before dealing with the description, it becomes necessary advert to some surrounding circumstances, the significance which when once appreciated appear to me to afford an unerri guide in the interpretation of the document under considerati At the date of Comtesse's application the appellants' 2941 1 not been approved. It was at that time still open to Government to reject it altogether, or to approve it with co tions and reservations (sec. 21 Land Act). The appellants' though approved and occupied by the appellants' stock, was marked or fenced, and had not, up to that time, been surveyed.

Not only had 584 not been surveyed, but the position of Era- cootharra Pool on the ground had not then been fixed. It hi since been located by survey on 584, being on Eracootharr: Creek, near where that Creek crosses the eastern boundary o: that portion. But at the time of Comtesse's application, i appears to have been the opinion of responsible officers of the Lands Department that the pool was about nine miles to the north-west of that position, about where it' is marked in Com: tesse's application. I turn now to two sections of the Land Ac 1898, which have some materiality in the construction of Com. tesse's application. Secs. 19 and 105 were referred to by Mr. Pilkington as imposing, upon applicants for pastoral leases, the -

ation. [assume that both sections apply to applications for pastoral

Lands Department may, if it thinks fit, insist on compliance, when it has approved an application, failure to comply with particular requirement of the sections would not, of itself, lidate the application.

_ In the present controversy the provisions are relevant only as laining the form of Comtesse's application. He no doubt ded to describe the land applied for by some natural feature, provided by see. 105, and, with reference to the occupation of id adjoining by the other persons in the locality, as provided sec. 19.

_ The latter section, in requiring the proposed boundaries to be lown on the sketch with reference to "land held by or in the cupation of any other person," undoubtedly has regard to the itself actually designated on the ground by occupation or by 'sible marking. It is referring to an artificial feature, if it may so termed, in contradistinction to the natural feature men-

is, of course, often impossible to do more than refer to neigh- bouring lands, according to the occupation which a map purports to show. Nothing more than that was possible in this case _ when Comtesse made his application. At that time 2941 had not even been approved. Even if 584 had then been surveyed, the position on the ground of the northern boundary of 2941 would _ have been a mere matter of conjecture. But when one remembers that 584 itself was not then surveyed, and that its boundaries had never been fixed by Government on the ground - when one remembers its extent and shape - it is impossible to suppose that the line shown on the map, as the northern boundary of 2941, could be anything more than the vaguest approximation to the position which that line would occupy, when the positions of 584 and 2941 on the ground were fixed by actual survey.

Turning now to Comtesse's description, in the light of these

surrounding considerations, its general intent becomes perfectly Vou. xi. 21

mn. of observing certain requirements in the form of the H- ©. or A.

But, in my opinion, their provisions are directory only. no. Crown.

plain. . Its main object was to indicate to the Lands Depart where the land was, so that its starting point could be foun its boundaries marked out on the ground. Anything else i description was in aid of that object. The main feature of description was therefore the fixing of the starting point at | south-west corner, by reference to the natural feature which selected to use for that purpose - Eracootharra Pool. That was sufficient. .

For the purposes of enabling the land applied for to be lor on the ground, there was no need to show how the starting po stood, with regard to the land of neighbouring occupiers. does, however, add that feature to his sketch plan, no doubt attempted compliance with sec. 19; but can there be any do that he intended thereby to describe, by an additional feat the same land, the land which was to be found by the meas ments from the described starting point near Eracootharra Pi as inserted on his sketch plan? When the description is apy to the land, it turns out that Comtesse was mistaken when fixed the boundary of 2941 as lying near to and eastward of tl pool.

Under these circumstantes, the only way in which the pl: intent and object of the description can be given effect to is bi treating that part of the description which refers to neighbouring occupiers as surplusage, and rejecting that portion of the sketch which wrongly describes the northern boundary of 2941 wii reference to the pool. The well known principle falsa demon- strutio non nocet is clearly applicable to such a description. In Martin v. Baker (1), and other decisions cited by Mr. Russell, the Court rejected as falsa demonstratio much larger and more vital portions of descriptions than it is called upon to reject in - the present case. For these reasons I am of opinion that Comtesse's application must be read as describing the land applied for only by reference to Eracootharra Pool. a

As the position of the pool has been fixed by survey within - 584, and near its eastern boundary, the land applied for must _ adjoin that block to the east, and must therefore include a sub-_ stantial portion of the land described in the appellants' subseque

Although that reading fixes Comtesse's starting H.C. oF 4. hin the boundaries of appellants' 584, the identification ae

md applied for is none the less definite. Comtesse's pamzes

tio can give him no right over any portion of 584. 9.5 Grown, jovernment, by virtue of its powers under the Land

'may, as it has done, grant so much of the application t encroach on lands previously leased or granted, and ter the boundaries of the application accordingly. It taken that the Government approved of Comtesse's m as legally construed, and that therefore when the nts applied for 3155 a substantial portion of the land ior had been already covered by Comtesse's approved

efore agree with the interpretation which the Supreme placed on Comtesse's application, and hold with them , appellants were not entitled to succeed in the action. that, in my opinion, the appeal must be dismissed.