10,399, Pueblo, Colorado. Notice of the application was duly published, commencing April 18, 1896. During the period of publication an adverse claim was filed on behalf of a conflicting claim known as the Baby Dora lode. Suit thereon was duly instituted in the district court for the county of Fremont, State of Colorado, wherein said claims. were then situated, and remained pending in said court until March 24, 1897, when it was dismissed upon stipulation by the parties.

June 20, 1896, a protest against the allowance of entry upon said application was filed by John Opie et al. August 18, 1898, the local officers dismissed the protest. That action was affirmed by your office, October 22, 1898, and, on appeal, was sustained by the Department in its decision of October 14, 1899, in the case of Opie et al. v. Auburn Gold Mining and Milling Company (29 L. D., 230).

In the meantime, June 4, 1899, one Joseph Crumby filed another protest against said application for patent, alleging, in substance and effect:

1. That the applicant company failed during the year 1898 to make the expenditure of $100, in labor or improvements on the Marburg claim, required by section 2324 of the Revised Statutes;

2. That on account of such failure the protestant and one John Mott relocated said claim January 1, 1899; and

3. That in view of such claimed relocation, entry and patent should not be allowed upon the present proceedings.

This protest was forwarded to the Department pending the appeal in the Opie case, but was remanded to your office for appropriate action. By decision of January 30, 1900, you held the protest to be insufficient and dismissed it. Crumby and Mott have appealed.

The Marburg claim was located in 1892. Section 2324 of the Revised Statutes, among other things, provides that—

On each claim located after the tenth day of May, eighteen hundred and seventytwo, and until patent has issued therefor, not less than one hundred dollars' worth of labor shall be performed or improvements made during each year.

Also, that

upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location.

The case of Benson Mining and Smelting Company . Alta Mining. and Smelting Company (145 U. S., 428) was one where the applicants for patent had gone through the regular proceedings required to obtain patent to a mining claim in 1879, had paid the government price for the land, and had received the usual certificate of purchase. Thereafter they sold and conveyed the claim to other parties, who continued to do a large amount of work thereon until 1882, but did no work dur

upon

ing that year. A relocation of the claim was made in 1883, based the fact that no work was done in 1882. Patent was not issued to the applicants until 1884. The controversy involved the question of the ownership of the claim under the mining laws. The Benson company claimed under the patent of 1884, and the Alta company claimed under the relocation of 1883. On behalf of the latter company, the appellant in the case, it was contended that the provision of the statute requiring the expenditure of $100 in labor or improvements on the claim "until patent has issued therefor," must be literally construed, and that inasmuch as such expenditure was not made on the claim in that case for the year 1882, all rights under the origi nal location and the application for patent and proceedings thereon in 1879, thereupon ceased, and the relocation of 1883 operated to vest the property in the relocators.

In reference to this contention, the supreme court, after quoting the language of the statute herein above referred to, said:

This language, standing by itself, apparently sustains the contention of the appellant; but a consideration of the provisions of all the statutes respecting mining claims makes it obvious that such is not the true construction. The precise question has never been presented to this court; but the import of several decisions is against appellant's contention. The uniform ruling of the land department has been against it, the question having been presented at an early day and fully examined. In the case of the American Hill Quartz Mine, reported in Sickels' Mining Laws and Decisions, pages 377 and 385, and also in Copp's U. S. Mineral Lands, page 254, are wellconsidered opinions by the Commissioner of the General Land Office and the Secretary of the Interior, each holding that, when the price of a mining claim has been paid the equitable rights of the purchaser are complete, and there is no obligation on his part to do further annual work, the delay in issuing the patent being a mere matter occurring in the administration of the land department, and the patent when issued by relation taking effect as of the date of the purchase.

In another part of its opinion the court further said:

Obviously section 2324 does not provide for the acquisition of title to the land. Its scope and purport are expressed in the opening words, as follows: "The miners of each mining district may make regulations not in conflict with the laws of the United States, or with the laws of the State or Territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim, subject to the following requirements:" and then follow several provisions in the nature of limitations on the general authority thus given to miners. Among them is that quoted. That evidently does not refer to the "location," or "manner of recording," but to the "amount of work necessary to hold possession of a mining claim," that is, to continue the mere possessory title. And so we find that section 2325 provides that "a patent for any land claimed and located for valuable deposits may be obtained in the following manner:" and gives thereafter the various steps necessary to be taken to purchase the land. Near its close is this, as to the patent: "If no adverse claim shall have been filed with the register and the receiver of the proper land office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists." In other words, when the price is paid the right to a patent immediately arises. If not issued at once, it is because the magnitude of the business in the land

!

department causes delay. But such delay, in the mere administration of affairs, does not diminish the rights flowing from the purchase, or cast any additional burdens on the purchaser, or expose him to the assaults of third parties.

And after referring to and considering a number of authorities bearing on the subject, the court concluded its opinion on that branch of the case as follows:

There is no conflict in the rulings of this court upon the question. With one voice they affirm that when the right to a patent exists, the full equitable title has passed to the purchaser, with all the benefits, immunities and burdens of ownership, and that no third party can acquire from the government interests as against him.

The principle thus announced was followed and applied by the Department in the recent case of McCormack e. Night-Hawk and Nightingale Gold Mining Company (29 L. D., 373), wherein it was held, in substance and effect, that an applicant for patent to a mining. claim who has gone through the regular proceeding srequired in such cases, has paid the purchase money for the land and obtained the usual certificate of purchase and entry, is not obliged to continue the annual expenditure upon the claim required by section 2324 of the Revised Statutes; and that such certificate of purchase and entry, as long as it remains uncanceled, is equivalent to a patent, in so far as the rights of third parties are concerned. See also Morgan et al. . Antlers-ParkRegent Consolidated Mining Company (29 L. D., 114).

In the case of Cain et al. v. Addenda Mining Company (29 L. D., 62), which involved the construction of certain provisions of sections 2324 and 2325 of the Revised Statutes, the Department (pages 66 and 67) said: The difficulty here arises from the fact that the Addenda company filed its application for patent in the local land office in 1879, made due posting and publication thereof and upon the termination of certain adverse proceedings in 1882 became entitled, upon paying the purchase price, to make entry of all the ground embraced in its application and notices which had not been awarded to others in such adverse proceedings. Instead of exercising this right the company took no further proceedings under its said application until in 1894, after the lapse of twelve years and after the institution of the suit by the protestants to quiet title in themselves to the portion of the ground here in controversy. The mining laws contemplate that proceedings under an application for patent should be prosecuted to completion within a reasonable time after the required publication, or after the termination of proceedings on adverse claims, if any are filed; otherwise by making application for patent and giving notice thereof, but without making payment of the purchase price, one would become entitled to project indefinitely into the future the assumption of section 2325 “that no adverse claim exists" notwithstanding the requirement of section 2324 that an expenditure of one hundred dollars in labor or improvements shall be made upon a mining claim during each year until entry is allowed.

The Addenda company permitted its application to lie dormant so many years without making payment of the purchase price that it must be held to have waived the rights obtained by the earlier proceedings upon the application. Its entry in 1894, therefore, ought not to have been allowed, and for that reason must be canceled. The case of P. Wolenberg et al. (29 L. D., 302) was one where application for patent to a mining claim had been filed in December, 1896, and publication of notice thereon completed February 3, 1897, without

adverse claim or protest to prevent payment for the land and the allowance of entry. Payment was not made, however, until December 21, 1898, when entry was allowed. Upon a protest alleging, among other things, that the applicants for patent had failed to make an expenditure of $100 in labor or improvements on the claim for the year 1896, and that by reason of such failure the protestant had relocated the claim in March, 1897, your office, May 9, 1899, ordered a hearing for the purpose of determining, along with certain other matters, whether such expenditure had been made. On appeal by the entryman from that order the Department, in the course of its opinion, said:

In the present case the order for a hearing, in so far as it directs an inquiry into the charge of failure to make an expenditure of one hundred dollars, in labor or improvements, on the Mascot claim during the year 1896, and the alleged relocation of the claim by reason thereof, clearly relates to matters over which the land department is without authority. The annual expenditure of one hundred dollars, in labor or improvements, required by section 2324 of the Revised Statutes, is solely a matter between rival or adverse claimants to the same mineral land, and goes only to the right of possession, the determination of which is committed to the courts and not to the land department. In this respect the requirement made by section 2324 is essentially different from that made by section 2325, which makes the expenditure of five hundred dollars, in labor or improvements, a condition to the issuance of patent, and therefore a matter between the applicant for patent and the government, the determination of which is committed to the land department. Where the required expenditure of five hundred dollars has been made upon a mining claim, failure to perform annual assessment work will not, in itself, prevent the issuance of patent or furnish any ground of protest against the allowance of a mineral entry.

In another part of the opinion, after citing and quoting from the Cain-Addenda case, supra, it was further said:

In this case nearly two years elapsed after the required publication before any effort was made to carry the application to completion, and in the meantime there may have been, as claimed, a legal relocation of the claim, based upon a failure by the claimants to make the annual expenditure in labor or improvements which is necessary to the continued maintenance of their possessory right as against subsequent locators. The assumption, declared in section 2325 of the Revised Statutes, that no adverse claim exists in those instances where no adverse claim is filed in the local office during the period of publication, relates to the time of the expiration of the period of publication and to adverse claims which might have been made known at the local office before that time. It has nothing to do with adverse claims which are initiated subsequent to that time and which could not therefore have been made known at the local office during the period of publication. The statutory declaration does not compel any assumption in this instance to the effect that no adverse claim intervened between the earlier proceedings upon the application for patent, which ended February 3, 1897, and the making of the entry on December 21, 1898. In the presence of the claimed relocation of the Mascot after the expiration of the period of publication, the applicants for patent are not in a position to ask or urge that their laches or delay be disregarded. It follows that the entry must be canceled. See also the same case, on review, 29 L. D., 488.

In Barklage et al. v. Russell (29 L. D., 401) the principle of the Cain-Addenda and Wolenberg cases was followed and applied. In that case the Department said:

The allegations of the protest amount to nothing more nor less than the assertion of a claim adverse to that of the entryman Russell, and arising subsequent to the period of publication of the notice of the application for patent. The land department has nothing to do with questions as to the performance of annual expenditure upon mining claims, nor of alleged relocations thereof by reason of failure to perform such expenditure, arising under section 2324 of the Revised Statutes. These questions are solely matters between rival or adverse claimants to mineral lands and go only to the right of possession of the land involved. The determination of that right, between such claimants, however, or whenever the adverse claim may be alleged to have had its origin, is committed by the mining laws to the courts alone. In the more recent case of Reins . Montana Copper Company et al. (29 L. D., 461), in applying the same principle to a somewhat different state of facts, it was said:

The facts in the case relative to the placer application for patent bring it clearly within the rule announced in the case of Cain et al. v. Addenda Mining Co., on review (29 L. D., 62), and approved and followed in the more recent cases of P. Wolenberg et al. (id., 302), and William Barklage et al. v. Jay E. Russell (id., 401), that failure to prosecute an application for patent to completion within a reasonable time after the expiration of the period of publication or the termination of adverse proceedings in the courts constitutes a waiver of all rights obtained by the earlier proceedings upon the application. This rule is equally applicable to the failure of the placer claimant to take and complete, within a reasonable time, the proceedings necessary to obtain a patent in pursuance of the judgment rendered in the adverse proceedings against the application for patent to the Betsy Dahl lode claim. That judgment could give the placer claimant no greater or higher right to a patent than was obtained by the earlier but unperfected proceedings upon its own application for patent . That judgment is of no avail against subsequent laches. It is not such a judgment, but the making of a mineral entry, that relieves an applicant for patent from the obligation to perform annual expenditure. Hence the judgment in its favor afforded the placer claimant no immunity from a subsequent relocation of the claim and consequent loss of the right of possession if it failed to make thereon the requisite annual expenditure and did not resume work before such relocation. This being so, delay in perfecting a right to patent under a judgment obtained in opposition to the application of another, as well as delay in perfecting such right under one's own application, may amount to laches such as will entail a loss of the right acquired by the prior proceedings.

The case of Gillis v. Downey, decided February 28, 1898, by the United States circuit court of appeals for the eighth circuit (85 Fed. Rep., 483), was a suit instituted for the purpose of quieting title in the plaintiff to certain lands containing placer mines. In the course of its

opinion the court said:

The bill sets out all the facts which show compliance by the complainant with the prerequisites of the federal statute investing him with the right of possession to the land in controversy, and entitling him to enjoy that right undisturbed, and to have his title to the possession quieted against the pretended adverse claim of the defendant. But it is insisted by defendant that, as he had made application to the land-office department for a patent, pursuant to the provisions of section 2325, Rev. St., and the 60 days prescribed therein for publication of notice of such application had expired before the complainant adversed the application, the complainant is precluded from contesting his right to a patent. It does not appear from the averments of the bill that the 60-days' notice was ever published, as required by the statute. But, assume