of having filed their adverse claim to the Antelope, would be entitled to a patent for their entire claim, then they would acquire a patent for premises for the greater portion of which no notice of application had ever been given. A construction that would result in such consequences is wholly inadmissible.

I overrule the application to commence proceedings to set aside the patent for the Antelope lode. I shall request the Attorney-general to institute proceedings in the name of the United States to set aside and cancel so much of the patent to the Highland Chief as conflicts with the patents heretofore issued to the Prince of Wales and the Wandering Boy.

I have given to the many questions involved in this case all the consideration which my time would permit, and the conclusion which I have reached will result in bringing into court the owners of the Highland Chief, where they will have full opportunity to protect all their rights.

You will advise the parties of the foregoing decision.
Very respectfully,

C. DELANO, Secretary.

Hon. Commissioner General Land Office.

No. 4. ACT OF 1866.

1. The law makes it the duty of the Register to publish the notice of application for patent.

2. The final survey should substantially follow the claim described in the application.

3. Adverse claims must be filed during the ninety days period of publica tion.

4. The Supreme Court of the United States has rendered a decision in this See No. 9, Decisions.

matter.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., December 5, 1871. SIR: I return herewith the papers transmitted with your letter of the fifteenth ultimo, in the matter of the Salt Lake Mining Company's application for certain lands in the Flagstaff lode, Little Cottonwood Mining District, Utah Territory. You rejected the notice on the grounds of incorrect published notice and incorrect survey.

After a careful consideration of the subject, I am of opinion that the defects in the published notice were not of so material a character as to require it to be set aside;

and your decision is modified to this extent. I entirely agree with your opinion that the errors of the survey are such as to forbid its approval.

The inclosed copy of the opinion of Assistant Attorneygeneral Smith on the case, in which I fully concur, sets forth at length the reasons of this decision.

I am, sir, very respectfully,

Your obedient servant,

C. DELANO, Secretary.

Hon. WILLIS DRUMMOND, Commissioner, General Land Office.

[Inclosure.]

DEPARTMENT OF JUSTICE,

OFFICE OF ASSISTANT ATTORNEY-GENERAL,

WASHINGTON, November 24, 1871.

SIR: I have considered the appeal of the Salt Lake Mining Company from the order of the Commissioner of the General Land Office refusing to issue a patent for the Flagstaff lode," so called.

66

The Commissioner based his rejection of the application upon two grounds:

1. The notice published by the Register did not correspond in its description of the premises with the notice and diagram filed with the Register.

2. The survey made by the Surveyor-general did not correspond with and include the premises set forth in the claim and diagram filed with the Register.

First. The notice, application, and diagram, filed with the Register, described the discovery shaft of said lode as distant north 47° 15′ west two thousand two hundred and eighty-one feet from United States monument number 4. The published notice described it as distant north 47° 15′ two thousand two hundred and eighty-one feet from United States mineral monument "A." The application described the lode as extending from the discovery shaft south 36° west one thousand two hundred feet, and north 36° east one thousand four hundred feet. The published notice as extending south 37° one thousand two hundred feet, and north 36° one thousand four hundred feet.

It thus appears that the published notice failed in these instances, of giving the bearing from the meridian, and left it uncertain whether that bearing should be east or west.

It gave one course as 37°, when it should have been 36°, and described the starting point as monument A, when it should have been 4.

It will be observed that the notice in the first three particulars agrees with the application so far as it goes. It is consistent with the application to the extent it states the courses and distances, but fails to state the courses in full. It omits one of the bearings from the meridian. If there were nothing referred to in the notice to help out the patent defects in it, I think it would not be such a notice as the law requires.

An examination of the notice, however, shows that it states. that the company "has this day filed in this office a diagram of the same, together with a notice of an intention to apply for a survey," etc.

The "diagram" and "notice" referred to contain a true. description of the premises, and, as I think, help out and cure the defects referred to and patent in the published notice, upon the well-established maxim id ceratum est quod reddi potest ceratum. The error of one degree, in giving the course as 37° when it should have been 36°, is so slight and would make so little difference in the distance of 2,600 feet, that it is not entitled to consideration. Lex non curat de minimis. The remaining discrepancy is the one which makes the starting point monument A, instead of monument No. 4. This, in my opinion, is the most serious of all. Upon inquiry, I learn that there are, in fact, no mineral monuments that are desiguated by the letters of the alphabet. Practically, there was but little danger of any one's being misled by such a notice. Upon its face it would be seen that it called for a monument that was unknown in the mineral districts, and the inquirer would be led to examine the diagram referred to in the notice, and upon such examination would discover the error and ascertain the true. monument.

Register's duty to publish notice.

Moreover, the law does not impose upon the applicant the duty of preparing and publishing the notice. This is made the duty of the Register. It is claimed by counsel that the applicant is not responsible for any errors made by

the officer of the law in giving such notice. I think the officer is made for this purpose the agent of the applicant, and that it is the business of the applicant to see that he substantially complies with the law. The object of notice is to advise those who may have adverse interests of the pendency of a claim that may affect their interests, and it will not answer to say that the applicant shall not be responsible for the notice, or that he shall receive his patent, although the officer entirely neglected to give any notice. But while I would not release the applicant from all responsibility for the notice, yet, inasmuch as it is made the legal duty of the Register to prepare and give it, I would not hold the party to the same technical precision that I would if the law made it his duty to give the notice.

Upon the whole, I think the notice in question was not so irregular or defective as to justify setting it aside.

Second. By an examination of the application and official survey made in this case, it will be seen that they do not correspond.

The application was for a claim extending from the discovery shaft south 36° west 1,200 feet, and from the same point north 36 east 1,400 feet. The official survey was for a tract extending from the discovery shaft south 49° 39′ east 1,200 feet, and north 45° 39′ west 1,400 feet.

Assuming that the discovery shafts were identical, and there is a variation in the course of 81° 39′, making the two tracts cross each other nearly at right angles, the application started at a given course and distance from monument No. 4, the survey at a given course and distance from monument No. 3. Whether the two monuments were in fact identical is not shown.

Survey should conform to application.

I am of opinion that the final survey should substantially follow the claim described in the application. I think this did not, and I advise that the decision of the Commissioner be reversed as to the published notice, and affirmed as to the final survey.

Very respectfully,

W. H. SMITH, Assistant Attorney-general. Hon. C. DELANO, Secretary of Interior.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., March 14, 1872.

SIR: I have had under consideration the appeal from your decision in the matter of the Flagstaff lode, in Utah Territory.

The only ground on which you declined to issue a patent was that certain adverse claims had been filed with the Register after the expiration of the ninety days from the date of the published notice, and before the approval of the corrected survey.

It appears that the notice was published on the fourth day of June, 1870, and one of the adverse claims was filed on the twenty-eighth of December, 1871, and the other on the tenth of January, 1872.

The original survey was approved by the Surveyorgeneral on the eighteenth of September, 1871. The corrected survey was approved on the sixteenth of January, 1872. The original was not approved by the Commissioner or Department, because it did not conform to the original application and diagram in this, to wit: the application and diagram purported to start at a given course and distance from mineral monument No. 4, and the survey at the same course and distance from mineral monument No. 3.

The application and diagram represented the surface premises to extend from the discovery shaft south 36° west twelve hundred feet, and north 36° east fourteen hundred feet. The survey represented the tract as extending from the discovery shaft south 49° 39′ east twelve hundred feet, and north 45° 39′ west fourteen hundred feet.

There was then no evidence in the case showing that mineral monuments Nos. 3 and 4 were identical. Now that fact is clearly shown, and it is also shown that the corrected survey corresponds with the original application and survey, and that the original survey covered the identical discovery shaft now contained in the corrected survey, and that both the original and corrected surveys cover the identical discovery shaft set forth and included in the application and diagram.

Adverse claim filed after approval of original survey-When new survey is ordered.

I state these facts for the purpose of showing that the ad