34. Upon the receipt of these papers the register will, at the expense of the claimant (who must furnish the agreement of the publisher to hold applicant for patent alone responsible for charges of publication), publish a notice of such application for the period of sixty days in a newspaper published nearest to the claim, and will post a copy of such notice in his office for the same period. When the notice is published in a weekly newspaper ten consecutive insertions are necessary; when in a daily newspaper the notice must appear in each issue for sixty-one consecutive issues, the first day of issue being excluded in estimating the period of sixty days. 35. The notice so published and posted must be as full and complete as possible, and embrace all the data given in the notice posted upon the claim. 36. Too much care cannot be exercised in the preparation of these notices, inasmuch as upon their accuracy and completeness will depend, in a great measure, the regularity and validity of the whole proceeding. Under this authority of law the following rates have been established as the maximum charges for newspaper publications in mining cases: (1) Where a daily newspaper is designated, the charge shall not exceed seven dollars for each ten lines of space occupied, and where a weekly newspaper is designated as the medium of publication five dollars for the same space will be allowed. Such charge shall be accepted as full payment for publication in each issue of the newspaper for the entire period required by law. It is expected that these notices shall not be so abbreviated as to curtail the description essential to a perfect notice, and the said rates established upon the understanding that they are to be in the usual body-type used for advertisements. (2) For the publication of citations in contests or hearings involving the character of lands, the charges shall not exceed eight dollars for five publications in weekly newspapers, or ten dollars for publications in daily newspapers for thirty days. 103. Should it appear that excessive or exorbitant charges have been made by any surveyor or any publisher, prompt action will be taken with the view of correcting the abuse. III. DECISIONS. 1. The Register may exercise an official discretion in the designation of a paper for the publication of notice of a mineral appli cation, and if the one published nearest the claim will not give publicity to the notice, another paper, in which the publication will effect the object of the law, may be designated. Tomay v. Stewart, 1 L. D. 570. 2. Notice of application for a mineral pat 37. In the publication of final-proof notices the register has no discretion under the law to designate any other than the newspaper "nearest the land" for such purpose when such paper is a newspaper of general circulation. But he will in all cases designate the newspaper of general circulation that is pub-ent should be published in the paper which lished nearest the land, geographically measured. When two or more such newspapers are published in the same town, nearest the land, he may select the one which, in his honest and impartial judgment as a public officer, will best subserve the purpose of the law and the general interests of the public. 38. Newspaper charges must not exceed the rates established by this office for the publication of legal notices. 41. After the sixty days' period of newspaper publication has expired the claimant will furnish from the office of publication a sworn statement that the notice was published for the statutory period, giving the first and last day of such publication, and his own affidavit showing that the plat and notice aforesaid remained conspicuously posted upon the claim sought to be patented during said sixty days' publication, giving the dates. 97. Section 2334 provides for the appointment of surveyors of mineral claims, authorizes the Commissioners of the General Land Office to establish the rates to be charged for surveys and for newspaper publications. will give to it greatest publicity in the vicinity, even though such paper may not be the paper nearest the claim. Bretell v. Swift, 17 L. D. 558. (Modifying Bretell v. Swift, 16 L. D. 178.) 3. The selection of a newspaper for publication of a notice of application for a mining claim rests in the sound discretion of the Register. Other things being equal, the convenience of the applicant should be regarded. W. A. Arnold, 2 L. D. 758. 4. The Register may exercise an official discretion in the designation of the newspaper for the publication of notice of an application for a mineral patent. Erie Lode v. Cameron Lode, 10 L. D. 655. 5. In designating a newspaper as being the one of general circulation published nearest the land, the Register has a judicial discre tion, subject, however, to the supervisory authority of the General Land Office and Department of the Interior. Condon v. Mammoth M. Co., 15 L. D. 330. 6. The Register may exercise a legal discretion in designating the newspaper of general circulation published nearest a mining claim. (Lead City is nearer the land than Deadwood, but a mountain is between Lead City and the claim.) Held, the publication in the Deadwood paper was proper. Bretell v. Swift, 16 L. D. 178; 17 L. D. 558 (review). 7. In designating a newspaper for the publication of notice of a mineral application, the Register is not required to recognize the difference in distance from the claim between two papers published in the same city or town. Condon v. Mammoth M. Co., 15 L. D. 330. 8. The law is specific to the effect that notices of mining applications must be published in the newspaper nearest the mining claim. Omaha G. M. Co., 3 C. L. O. 36–163. 9. Publication in a paper of general circulation published near the land, though not the nearest, held good. Foley v. Omaha G. M. Co., 3 C. L. O. 36. 10. The application for patent must be rejected if notice thereof was not published in the newspaper nearest the land. Brown v. Lewis, 1 C. L. O. 50. 11. Only reputable newspapers nearest the claims should publish mining notices. Osmer C. Stewart, 8 C. L. O. 155. 12. A newspaper which changes figures to words so as to lengthen a notice of application for mineral patent, and so increase the cost of publication, is not a reputable paper; and a newspaper which does so will not be designated for the publication of such notices. Charles W. Steele, 3 L. D. 115. 13. Notice must be published by direction of the Register. If published by the Receiver without the knowledge or consent of the RegCom'r to Central City Office, May 7, 1874, 1 C. L. O. 50. ister, it is invalid. 14. Publication of notice of application for a mineral patent under the direction of the Receiver of the land office during a vacancy in the office of Register is the act of a de facto officer and is not invalid, and failure to adverse such application during such publication is a waiver of adverse rights. Jeffords v. Hine, 11 Pac. Rep. 351; 15 Mor. Min. Rep. 575. 15. Where the Register of the land office was suspended and the Receiver was directed to take charge of the office and received a mineral application and directed publication of notice thereof, his acts were those of an officer de facto, acting colore officii, and will be held valid. Dean Richmond Lode, 1 L. D. 545. 16. Notice of application for a mineral patent must give the course and length of the line connecting the claim with a corner of the public surveys or with a mineral monument. It is not sufficient to connect the claim with a corner of the survey of an unpatented mining claim. Emperor Wilhelm Lode, 5 L. D. 685. 17. Republication of notice of application for patent will be required where the published notice failed to fix the locus of the claim by a line connecting the same with a corner of the public survey or a United States mineral monument. Tennessee Lode, 7 L. D. 392. 18. A notice of application for a mineral patent that fails to connect the claim with the public surveys or a United States mineral monument is insufficient, and an entry allowed on such notice may not be referred to the Board of Equitable Adjudication in the presence of a protest of persons alleging adverse claims, but republication of notice will be required. Nil Desperandum Placer, 10 L. D. 198. 19. The published notice of application for a mineral patent is sufficiently definite as to showing the locus of the claim if it connects the same with the corner of a patented town site, which is also the corner of a patented placer, both of which are connected, in their respective surveys, to a United States mineral monument. (By instructions dated March 15, 1892, 14 L. D. 294, the Secretary holds that this decision will not be regarded as a precedent.) Eugene McCarthy, 14 L. D. 105. 20. The published notice of application for a mineral patent must follow the survey in giving a connection between the claim and a United States mineral monument or corner of the public surveys, and republication will be required if the locus of the claim is not so fixed in the published notice. Broad Ax Lode, 22 L. D. 244. 21. Where, by error in the survey of a mining claim, the line connecting the claim was so erroneous as to place the claim about half a mile from its true position, it was held that the mineral entry should be referred to the Board of Equitable Adjudication without requiring republication of notice of application. Buena Vista Lode, 6 L. D. 646; Veta Grande Lode, 6 L. D. 718. 28. A mineral entry may be passed to patent, notwithstanding the fact that the line connecting the claim with a corner of the public survey is incorrectly given in the published notice of application for patent as 822.42 feet, instead of 622.42 feet, where a line connecting the claim with a corner of the official survey of another claim was cor decision of May 20, 1896, Alsa R. Lode. See, also, French Lode, 22 L. D. 675. 22. A mineral entry may be referred for confirmation to the Board of Equitable Ad-rectly stated in said notice. Departmental judication where the locus of the claim was not shown in the published notice by a line connecting the claim with the public surveys. Silver King Quartz Mine, 11 L. D. 234. 23. Where the published notice of application for patent contains a slight error in the connection showing the locus of the claim, the entry may be referred to the Board of Equitable Adjudication. Alabama Quartz Mine, 14 L. D. 563. 24. Any defect in the published notice of application for a mineral patent is chargeable to the Register, whose duty it is to prepare and publish the same, and an entry may be referred to the Board of Equitable Adjudication, where such notice is defective in failing to connect the claim with a corner of the public surveys or a United States mineral monument. Mimbres M. Co., 8 L. D. 457. 25. Where the notices of application for patent were sufficiently definite in the matter of description of the claim to cause an adverse claim to be filed, republication of notice will not be required because of an error in the survey of ten degrees in the course and three chains in the length of the line connecting the survey of the claim with a corner of the public surveys, but the entry may be referred to the Board of Equitable Adjudication. Walter C. Childs, 10 L. D. 173. 26. Where by a typographical error the line connecting the claim with a public survey corner was published as 2,552.2 feet in length, instead of 2,252.2 feet, the mineral entry may be referred to the Board of Equitable Adjudication. Newport Lode, 6 L. D. 546. 27. Republication will be required if the locus of the claim applied for is not shown in the published notice by the connection given in the official survey (the published notice gave the bearing from corner No. 2 of the claim to United States mineral monument as N. 62° E., 532 feet, while the true course was N. 6° E.). Hoffman v, Venard, 14 L. D. 45. 29. Where notice of application for patent was not published for the required period and the General Land Office ordered republication on that account, without questiɔning the sufficiency of the notice, and the same notice is thereupon published for the proper period, republication should not again be required for a defect in said notice. Mimbres M. Co., 8 L. D. 457. 30. Republication of notice of application for patent must be accompanied by posting of notice in the local land office and of notice and plat upon the claim, as in the first instance, with the same rights to adverse claimants. American Flag Lode, 6 L D. 320. 31. Where an entry is defective in that proper posting of notice of application and plat upon the claim is not shown, the claimant should be allowed to give new notice by publication and posting. Cornell Lode, 6 L. D. 717. 32. A published notice which gives the survey number of adjoining claims will not be held defective in that it did not give the names of such claims. Whitman v. Haltenhoff, 19 L. D. 245. 33. The statute does not require the names of adjoining claims to be given in the notices of application for patent, and a failure so to do will be waived, even in the face of a protest, if it appears that such failure was not fraudulent and that no injury is shown to have resulted therefrom. Louisville Lode, 1 L. D. 548. 34. Contra: A published notice of application for a mineral patent is insufficient if it fails to give the names of adjoining or neighboring claims. Gowdy v. Kismet G. M. Co., 22 L. D. 624. 35. An adverse claim filed in time according to then existing departmental rules, on the sixty-first day of publication, will be held valid. Jamie Lee Lode v. Little Forepaugh Lode, 11 L. D. 391. 36. If the sixtieth day of publication of notice of application for a mineral patent falls on a legal holiday, an adverse claim may be filed on the next business day. Waterhouse v. Scott, 13 L. D. 718. 37. An adverse claim should not be received if not filed until after the expiration of the sixty days of publication. Nettie Lode v. Texas Lode, 14 L. D. 180. 38. In computing the sixty days of publication within which an adverse claim must be filed against a mineral application, the first day of publication is to be excluded. Miner v. Mariott, 2 L. D. 709; Bonesell v. McNider, 13 L. D. 286; Waterhouse v. Scott, 13 L D. 718; Jefferson M. Co. v. Pennsylvania M. Co., 1 C. L. O. 66. 39. To be recognized by the Land Department under the provisions of section 2326, United States Revised Statutes, a suit must be based upon an adverse claim filed during the sixty days of publication of notice of application for patent, and must be commenced within thirty days after the filing of such adverse. Nettie Lode v. Texas Lode, 14 L. D. 180. 40. Though publication of notice of a mineral application in a weekly newspaper must cover sixty-three days, an adverse claim must be filed during the first sixty days thereof. Miner v. Mariott, 2 L. D. 709; Nettie Lode v. Texas Lode, 14 L. D. 180; Ledger Lode, 16 Ꮮ.. D. 101. 41. Though publication of notice of application for a mineral patent in a weekly paper must continue sixty-three days, it does not follow that notice by posting must cover that time. The requirement is that there must be sixty days of contemporaneous publication and posting. Tilden v. Intervenor M. Co., 1 L. D. 572; Great Western Lode, 5 L. D. 510. 42. If the sixtieth day of publication of notice of application for a mineral patent falls on Sunday, an adverse claim may be filed on the following Monday. Ground Hog Lode v. Parole & Morning Star Lodes, 8 L. D. 430. 43. An adverse complaint should show adverse claim to have been filed in the land office within sixty days of publication, and that suit was begun within thirty days from filing of adverse claim. Mattingly v. Lewisohn, 8 Mont. 259; 19 Pac. Rep. 310. 44. "If no adverse claim is filed during the required period of publication, it is assumed that the applicant is entitled to patent, and no agreement of parties can control this statutory provision. If either party claims a nonfulfillment of such agreement by the other, the remedy must be found in the courts, and not before your .office or this Department." Gustavus Hagland, 1 L. D. 591. 45. A stipulation between the applicant for patent and a party claiming adversely, that such opposing party may file an adverse claim within twenty days of the period of publication, is void. Morrison v. Lincoln M. Co., 6 C. L. O. 105. 46. An adverse mining claim, to be considered, must be filed within the period of publication. Tiernan v. Salt Lake M. Co., 1 C. L. O. 25. 47. If notice is posted in the local office on the first day of publication, an adverse claim should be filed within sixty days from that date; but, if such notice is not posted until three days thereafter, an adverse claim may be filed on the last day of publication. Great Western Lode, 5 L. D. 510. 48. The period of publication within which adverse claims must be filed ceases to run against adverse claimants if the posting of notice in the land office is not continuous. Tilden v. Intervenor M. Co., 1 L. D. 572. 49. Publication of notice of application for a mineral patent is process which brings all adverse claimants into court, and the grantee of an applicant for patent against whose application an adverse suit is pending takes pendente lite, even though no notice of lis pendens is filed. People ex rel. Darby v. District Court, 19 Colo., 343. 50. "The proceedings before the Land Department (under mineral law) are judicial in character, and the publication of notice as required brings all parties into court; and, if they stand by and allow the statutory time for filing adverse claims, or for bringing suit in support thereof, to elapse, their rights, so far as they might have been determined in such proceeding, in absence of fraud or mistake, are lost." Kannaugh v. Quartette M. Co., 16 Colo. 341; 27 Pac. Rep. 245. See to same effect, Wight v. Dubois, 21 Fed. Rep. 693; Lee v. Stahl, 9 Colo. 208; 11 Pac. Rep. 77; 13 Colo. 174; 22 Pac. Rep. 436; Hunt v. Eureka Gulch M. Co., 14 Colo. 451; 24 Pac. Rep. 550; Seymour v. Fisher, 16 Colo. 188; 27 Pac. | cation will be required. Henry v. Castner, Rep. 240. 17 L. D. 565. 51. Where publication of notice of application for a mineral patent was made for nine weeks only, under the Departmental practice then in force, and no rights are shown to have been injured thereby, it will not be declared insufficient on the motion of a mere protestant. Becker v. Sears, 1 L. D. 575. 52. Publication of notice of application for a mineral patent in a weekly paper requires ten insertions; but where only nine were made in accordance with the former practice of the Land Department, the entry may be referred to the Board of Equitable Adjudication for confirmation in the absence of any adverse rights. Oro Placer, 11 L. D. 457. 53. A publication in a weekly paper for nine successive weeks is not for the period of sixty days. McMurdy v. Streeter, 1 C. L. O. 34. 54. In the face of a protest, a mineral entry will be canceled where the certificate of the Surveyor General showing statutory expenditure to have been made upon the claim was not filed during the period of publication. Little Pet Lode, 4 L. D. 17, 284. 59. If the published notice was erroneous through the fault of the Register, he must make republication without expense to claimant. James M. Payne, 15 C. L. O. 97; Com'r to Spokane Office, Oct. 30, 1895, In re Northern Light Lode. 60. Republication may be for a portion of the claim not before published for. Com'r to Cheyenne Office, March 1, 1892, In re Greeley & Hayes Placer. 61. Republication must be accompanied by reposting on the claim and in the local office. Com'r to Durango Office, Sept. 14, 1895, In re Silver Monarch Lode. 62. The published notice of application for patent must appear in all copies of every issue of the paper, and if it does not, republication will be required. American Flag Lode, 6 L. D. 320. 63. In mining cases publication must be made in only one newspaper. Northern Light Lode, 1 C. L. O. 50. 64. Publication in two different papers, in each part of the time, is not legal publication. Com'r to E. H. Hazelton, Dec. 9, 1892. 55. An applicant for patent for a mining 65. Where the Register designates the daily claim must, within the sixty days of publica- issue of a newspaper for publication of notice tion of notice of application, file a certificate of a mining application for patent, it should of the United States Surveyor General show-not be changed to the weekly edition. Charles ing an expenditure of $500 upon the claim, and additional time to make the required expenditure cannot be allowed under the law. White Cloud Copper M. Co., 22 L. D. 252. 56. An application for a mineral patent will be rejected and canceled upon the filing of a protest against the same, where the applicant failed to comply with the law by filing within the sixty days of publication the certificate of the United States Surveyor General as to the statutory expenditure upon the claim. Milton v. Lamb, 22 L. D. 339. 57. Posting on the claim must be in a conspicuous place. Failure to so post necessitates new notice by publication and posting. Ferguson v. Hanson, 21 L. D. 336. 58. Where the survey of a mining claim and the published notice based thereon are erroneous in describing the claim as being in a county other than the one in which it is actually situate, to the injury of adverse claimants, an amended survey and republi W. Cannon, 3 C. L. O. 18. 66. A misstatement in the published notice as to the expiration thereof will not relieve adverse claimants of the duty of filing their adverse claims within the legal period. Bonesell v. McNider, 13 L. D. 286. 67. Patent was issued, based on an erroneous survey, but the notice of application for patent was so nearly correct as to be sufficient to put adverse claimants on their guard. In view of these facts, on the filing of a quitclaim deed of the patented land from the present owner to the United States, together with an abstract of title, a new and correct patent may be issued in the name of the original patentee without requiring republication. W. C. Childs, 13 C. L. O. 53. 68. Where a mineral patent issues based on an erroneous survey, a new patent in lieu thereof may not be issued without new notice by publication and posting, based on a correct survey, where the original survey is |