I am the better satisfied with this conclusion, because I understand that it conforms to the uniform practice and rulings of your office since the passage of what is termed the Mining act.

The papers are herewith returned,

I am, sir, very respectfully, your obedient servant, C. DELANO, Secretary. Hon. WILLIS DRUMMOND, Com'r General Land Office.

No. 29. Where there is no surface conflict there should be no stay of proceedings upon an adverse claim filed by another claimant.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, D. C., February 28, 1880.

Register and Receiver, Leadville, Colorado.

GENTLEMEN: I have examined the papers submitted, constituting the adverse claim of John W. Jacques, as part owner of the "Smuggler Lode," against George B. Robinson et al., claimants and applicants for patent to the "78 Lode," and have arrived at the conclusion that the allegations of fact set forth by said Jacques in his sworn statement are insufficient to constitute a valid adverse claim.

The two claims in dispute are located at right angles to each other, and the surface boundaries do not in any wise conflict or come in contact, but, on the contrary, are separated at their nearest approach by the surface ground of survey No. 368 of the "Undine" Lode, a distance of about 70 feet.

The 78 Lode was located September 20, 1878, and the Smuggler Lode, November 18 of the same year.

The facts alleged by the adverse claimant are in subplaintiffs could not make a valid location unless they had found the top or apex of their lode within the limits of the claim located, although they may have discovered a vein of mineral in rock in place below the surface.

"Judge Hallet, of the United States District Court, overruled the objections, and granted the injunction asked for by the plaintiff, saying, in substance, that the plaintiff's title was complete, and that it was not necessary that a locator should discover the apex of a vein or lode within his extension boundary lines in order to acquire title; that when a vein or mineral deposit was discovered, the locator acquired the right to all mineral bodies underneath the surface of his claim, as against subsequent locations having the top or apex within their side lines; that the strike of defendants' lode, so far as the evidence showed, crossed defendants' claim obliquely, in which case the side lines became the end lines, beyond which defendants could not go."

stance, that said Smuggler Lode came into possession and ownership of said George B. Robinson, who conveyed one. half thereof to John W. Jacques, adverse claimant herein, and that at the date of said conveyance said Robinson was also owner of one half of the 78 Lode. That the pitch of the 78 Lode is toward the Smuggler Lode at an inclination of about eighteen (18) degrees, and that if patent be granted to said 78 Lode, with the right to follow it in its downward course outside of the vertical side lines of the claim, it would convey to said applicants for the 78 Lode the right to extract all the ore in the Smuggler Lode, thus defeating the effect of the conveyance from Robinson to Jacques. It is further alleged that the Smuggler Lode and 78 Lode are one and the same vein.

If the formation of the vein of the 78 claim is such that a patent will give its owners the right to extract all the ore in the Smuggler Lode, then the 78 owners have the right already, for the patent merely conveys the fee, while their possessory title assures them all the rights to extract the ore which are conveyed by patent, and if there has been an illegal entry upon the domain of the Smuggler claim, and ore extracted therefrom which belongs to the owners of the Smuggler, such proceedings are wrongful acts which are the subject of proceedings in a court of competent jurisdiction, whether the 78 claim is patented or not.

Moreover, if the alleged fact be true that a patent would give said right, it follows that the Smuggler location is based upon a discovery of the lode or vein to which the 78 claimants have, by reason of priority of location, the better right, and is a confession by the Smuggler claimants that the top or apex of their vein is within the boundaries of the 78 claim.

As it is shown by the plat filed that the Smuggler location is nearly at right angles with that of the 78 claim, and that their surface boundaries do not conflict or come in contact, the end line of the Smuggler lying opposite the side line of the 78, it is clear that the Smuggler has no right beyond said end line, and the question whether the 78 Lode extends under the Smuggler by its lateral dip is one which in no manner affects the right to a patent for the 78 claim. If the 78 vein does so extend, the right of the owners is clear.

If, however, the true course of the vein on which both the 78 and the Smuggler claims are located is crosswise the 78, then under the decision of the Supreme Court of the United States in the case of the Flagstaff Silver Mining Company v. Helen Tarbet (see Copp's Land Owner, June, 1879,) the side lines of the 78 location are the end lines of their claim, and the courts will restrain them from proceeding further. In short, if all the allegations of the adverse claimants are true, they constitute no objection to the issue of patent to the 78 Lode.

The 78 Lode is the prior location and is not alleged to conflict as to surface rights; hence the adverse claim would not be good on general demurrer, and should not work a stay of proceedings. If the 78 claimants should mine beyond where it is their right to mine under the law, it would be simply a trespass, to be restrained by injunction and punished by damages obtained by proper proceedings in

court.

No surface conflict No stay of proceedings upon adverse claim.

The rule governing in cases where there is no surface conflict is stated in the decision of the Hon. Secretary of the Interior of twenty-fourth February, 1873, in the matter of the application of the Julia Gold and Silver Mining Company for certain claims in Nevada (Copp's Mining Decisions, pp. 101, 105). I construe this decision to mean that where there is no surface conflict no stay of proceedings should be had upon an adverse claim filed by the owners of another location, but that the surface shall be patented leaving subsequent developments to determine the rights of the respective claimants.

The proposition advanced that Robinson by his conveyance to Jacques of a half interest in the Smuggler Lode, being at the same time part owner in the 78 Lode, passed the right to extract the ore beneath the Smuggler location, a right which had theretofore pertained to the 78 Lode, is one of doubtful force, and in any event is wholly immaterial to the present controversy, for even if well founded the right will obtain as well after issue of patent as before.

For the reason stated I must dismiss the adverse claim of

John W. Jacques, and hold that George B. Robinson et al. are entitled to patent to the 78 Lode.

The Receiver's receipt and Register's certificate are herewith returned for correction, as they designate the claim as lot No. 368 instead of lot No. 369.

You will notify all parties in interest hereof, allow sixty days for appeal, and thereupon report to this office.

Very respectfully,

J. M. ARMSTRONG, Acting Commissioner.

No. 30. Adverse claim must be actually surveyed by United States Deputy Mineral Surveyor.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, July 17, 1873.

Register and Receiver, Prescott, Arizona.

GENTLEMEN: This office has examined the papers in the matter of the application of the Tiger Silver Mining Company, for patent for twelve hundred linear feet of the Tiger lode, situated in Tiger Mining District, Yavapai County, Arizona.

The application for patent was filed with the local land officers on the first April, 1873. The agent for the applicant filed proof of compliance with the mining law, and an abstract of title from the office of the County Recorder, showing the record title to the premises claimed to be in the applicant for patent.

On the thirty-first May, 1873, and before the expiration of the sixty days publication required by law, Calvin Jackson for himself, W. J. Tompkins, H. H. Partridge, and G. D. Kendall, by J. H. Park as agent, filed a protest against the issuance of a patent for said Tiger lode, alleging that two hundred feet of the said lode and premises, as described in the application, belongs to them.

This protest or adverse claim is not made out in accordance with the law and instructions from this office, and can not operate as a bar to the issuance of a patent as applied for.

The seventh section of the mining act of May 10, 1872, declares "that where an adverse claim shall be filed during the period of publication, it shall be upon oath of the per

son or persons making the same, and shall show the nature, boundaries, and extent of such adverse claim," etc.

The instructions of this office, contained in circular of June 10, 1872, paragraph forty-nine, require that in "order that the boundaries' and 'extent' of the claim may be shown, it will be incumbent upon the adverse claimant to file a plat, showing his claim and its relative situation or position, with one against which he claims, so that the extent of the conflict may be the better understood. This plat must be made from an actual survey by a United States deputy surveyor, who will officially certify thereon to its correctness, and, in addition, there must be attached to such plat of survey a certificate or sworn statement by the surveyor as to the approximate value of the labor performed or improvements made upon the claim of the adverse party," etc.

There must be an actual survey of the adverse claim.

There is nothing with the papers in this case to show that "an actual survey' was made of the premises claimed by the adverse claimants. A plat was filed, but no surveyor has officially certified thereon as to its correctness. There is no certificate or sworn statement by a surveyor, "as to the approximate value of the labor performed or improvements made upon the claim of the adverse party," either attached to the plat or on file with the case.

The protestants allege that they were prevented from having a survey made, "as the agent of said Tiger Silver Mining Company refused to allow the deputy surveyor, C. B. Foster, whom these claimants had engaged to survey and plat the same, to go on to the plat and survey of said company for that purpose.'

With the papers in the case is found an affidavit of C. Burton Foster, who swears that he is the deputy mineral surveyor, and that these adverse claimants never made application to him for an official survey of any part of the claim described.

No evidence is on file, showing that Calvin Jackson is the authorized agent for Partridge and Tompkins, nor does it appear that J. H. Parks, as agent for G. D. Kendall, made oath to the adverse claim, as required by the law.

Edward W. Wells, before whom Jackson makes oath,