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1. That the said J. H. Russell lode has been abandoned and relocated as the Empire lode, and that an action is now pending in the local courts in regard to the title to said lode.

2. That said J. H. Russell lode has not been surveyed in accordance with its general course or its original location.

3. That the survey of the said J. H. Russell lode conflicts with the survey made for the claim of Mary A. Hoyt on the Mammoth lode.

4. That the labor and improvements upon the said J. H. Russell lode do not exceed five hundred dollars.

5. That the discovery shaft was sunk upon this lode by the claimants of the west half of the lode and J. H. Russell jointly, and not by Russell alone; and,

6. That the application for survey was not accompanied by certified copy of location notice.

Accompanying this protest is found a certified copy of the location notice of the Empire lode, which was discovered July 3, 1877, and a copy of a certificate of the clerk of the third judicial district court, Montana, to the effect that on the eighteenth of September, 1877, John W. Gonu commenced an action in said court for the recovery of the possession of the Empire lode.

As the first objection has reference to the title to said claim, it is a question over which the Surveyor-general has no jurisdiction, and in regard to which he has no duties to perform.

Applicant entitled to a survey of claim as located.

Each applicant for a survey under the mining act is entitled to a survey of the entire mining claim as located, if held by him in accordance with the local laws and congressional enactments.

In the case under consideration the applicant alleges under oath that said J. H. Russell lode was located and recorded prior to May 10, 1872, in conformity with local laws and congressional enactments, and that it has never been abandoned since its original location.

Whether said claim was legally located and has been held in conformity with the law, since the day of location, are questions which would properly come before the courts

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for determination, should an adverse claimant appear in the manner prescribed by the statute against the issuance of a patent for said mine.

In regard to the objection, that the survey does not conform to the general course of the lode or its original location, it is only necessary to state that no evidence has been filed to contradict the correctness of such survey in this respect, but on the contrary the deputy-surveyor, who made said survey, reports that, “I began at discovery shaft and found by prospect holes in the line of the lode that the course of the vein or lode is N. 7, 9° E.

I have run the side boundaries parallel to the direction of the vein, which was ascertained by the line of shafts on the lode to be N. 7, 9° E.”

The location of this mine was made in 1867, and the notice of location, like many of the earlier notices, fails to give an accurate description of the premises located, but as the deputy reports that the survey embraces and covers the line of the lode, the survey, if correct in other respects, should receive your approval.

It is also objected that the survey so made conflicts with the survey of the Mammoth Lode.

The field notes and plat of the J. H. Russell Lode show the distances from the established corner of No. 1 of said survey, No. 77, to the intersection with the easterly boundary of survey No. 76, and from corner No. 3 of survey No. 77 to southerly boundary of survey No. 76. They should also show the distance from corner No. 3 of survey No. 77 to easterly boundary of survey No. 76, and from corner No. 4 of survey No. 77 to the southerly boundary of survey No. 76. The plat and field notes should also show the extent or area in conflict.

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Conflict of surveys should appeur on plat.

In all cases where in running the exterior boundaries of a claim it is found that two surveys conflict, the plat and field notes should show the extent of the conflict and the area embraced by both surveys, also the distances from the established corners at which the exterior boundaries of the respective surveys intersect each other,

When the survey in question has been corrected as above indicated, it will in this respect conform to the instructions of this office in like cases.

It is urged that a copy of the notice of location did not accompany the application for survey.

A certified copy of the location notice is shown to be on file in your office, but the date of the filing of the same in your office is not shown.

Copy of location notice should accompany field notes.

In all cases a certified copy of the location notice from the office of the proper recorder should accompany the field notes made by the deputy.

There may have been an irregularity in regard to the time of filing the copy of the notice of location in your office, but, as it is on file in your office, the Surveyor-general would not be authorized to withhold his approval of said survey on this account.

It is also urged that the labor and improvements upon said claim do not exceed the sum of five hundred dollars.

Section 2325 of the Revised Statutes of the United States requires the claimant at the time of filing his application for patent, or at any time thereafter within the sixty days of publication, to "file with the register a certificate of the United States Surveyor-general that five hundred dollars' worth of labor has been expended or improvements made upon the claim by himself or grantors.”

In the case under consideration, if you are not satisfied from the evidence on file that the required amount has been expended upon the said J. H. Russell Lode by said applicant or his grantors, you will require further evidence upon this point before furnishing your certificate.

This survey should receive your approval when the corrections indicated above have been made, and your certificate should be furnished when satisfied that the required amount has been expended upon the claim by applicant for patent and his grantors.

You will acknowledge the receipt hereof, and inform all parties in interest of the import of these instructions. I return said plat and field notes.

Very respectfully,

J. A. WILLIAMSON, Commissioner.

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No. 7. Effect of survey.
DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, D. C., November 5, 1874. T. B. SEARIGHT; Esq., Surveyor-general, Col.

SIR: With your letter of the thirteenth instant you transmitted copies of certain letters received by you, and of your replies thereto, in the matter of the survey of the Crown Point lode, Colorado.

The questions submitted are these:

1. Was the resurvey of the Crown Point lode made after the filing of said adverse claim, and prior to the final disposition of the said application by this office, legal?

2. Does an appeal lie from the decision of the Surveyorgeneral to approve a survey of a mining claim ? Application for survey virtually withdraws the claim from

market. In reference to the first question I would state that, after an application has been made for patent for a given mining claim, such claim is virtually withdrawn from market, pending the final disposition of the case, and no survey, as the basis of a patent, should receive the approval of the Surveyor-general for the same tract until the first application has been disposed of. Modification.

Parties may, however, have the field work of a survey of their claim made at any time, and if executed by a duly appointed deputy mineral surveyor, such survey may receive the approval of the Surveyor-general, at any time when no application for patent is pending for the same mine, if it is found upon examination that the survey is correct and made in accordance with law.

In the case under consideration the field work was executed while the said application was pending. The survey was not approved until the eighth of October, 1874, after said application for patent had been rejected. Approval of survey by Surveyor-general on indorsement that

same is correct. In reference to the second question I would state that the approving of a survey of a mining claim by the Surveyorgeneral is merely an indorsement thereon, over his own signature, that the survey is correct, and that it has been made in accordance with law and instructions, and until he has actually affixed his signature approving such survey no appeal lies to this office, as an appeal can not lie from a proposed action or decision.

If, liowever, a protest is filed against a given survey, you should in all cases transmit the plat and field notes of survey, together with all papers which may have been filed with you in the case, to this office, that such action may be taken as the law and the facts may warrant.

In this connection I would state that the Surveyor-general has no jurisdiction in the matter of deciding the respective rights of parties in cases of conflicting claims.

Each applicant for a survey under the mining act is entitled to a survey of the entire mining claim, as located, if held by him in accordance with the local laws and congressional enactments.

Conflict of surveys to be shown.

If, in running the exterior boundaries of a claim, it is found that two surveys conflict, the plats and field notes should show the extent of the conflict, giving the area which is embraced in both surveys, and also the distances from the established corners at which the exterior boundaries of the respective surveys intersect each other.

If parties desire to protect their interests which would be adversely affected by the issuance of a patent for the claim as surveyed, they must file an adverse claim against such application in the manner and form prescribed by the statute, for in no other way can their alleged adverse rights be adjusted.

In the case under consideration, both surveys having been approved, the respective parties may, upon full compliance with the law and instructions, make application for patents for their claims to the local land officers, in which event it will be necessary for them to proceed in the manner indicated by the law and circular instructions.

You will inform all parties in interest, and acknowledge the receipt hereof. Very respectfully,

S. S. BURDETT, Commissioner.

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