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time for such purpose, but must now proceed upon the application for patent. The adverse claimants, having enjoyed the privileges accorded them by the statute, and having had their day in court, have but themselves to blame for whatever of inconvenience may result from their neglect to attend to their own interests.

It is not shown that they labored under any disability to prosecute on account of being in the quiet and peaceable possession of the property claimed; for, in the first place, there is no satisfactory evidence that the Mountain City and Tierney lodes are identical; and, in the second place, if they were identical, there is abundant evidence that Miller and others occupy and have occupied a portion of it; have made a location of it under the mining laws of Colorado, sunk shafts and performed other work upon it; and if these acts of ownership and possession do not lay a foundation for ejectment, it is difficult to tell what would.

Even if an ejectment had been impracticable, which it was not, there could have been no difficulty in proceeding in equity, either by a bill to quiet title, or an injunction to restrain Miller & Co. from applying for and obtaining a patent from the United States, or, in the event of their obtaining one, constituting them trustees of the same for the benefit of the rightful owners of the claim, or possessory title, under the laws of Colorado, inasmuch as the mining act requires the patent to be issued only to parties having previously occupied and improved the claims according to the mining regulations in force in the respective districts, The pretense of want of power to prosecute is, therefore, gratuitous, and to send the case into the courts a second time would be, under the circumstances, trifling with the provisions of the mining act.

***

Very respectfully, etc.,

Jos. S. WILSON, Commissioner.

No. 44. Adverse claims may be filed up to last day of publication of notice in a weekly newspaper.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, D. C., October 29, 1879.

Register and Receiver, Leadville, Colorado.

GENTLEMEN: I am in receipt of Register's letter of the

fifteenth ultimo, asking within what period an adverse claim may be filed against an application for mineral patent which is published in a weekly newspaper.

By decision of the Hon. Secretary of the Interior, ten (10) insertions in a weekly newspaper are essential to comply with the law requiring sixty days publication. In such publication, the tenth, or last, issue falls upon the sixtythird day after the first, which is excluded. The statute contemplates that adverse claims may be presented during the legal period of publication. If the legal period does not extend to and embrace the last day upon which the publication (which is held to be necessary) is made, then the insertion of said notice in the tenth consecutive issue of such weekly is not only rendered unnecessary, but would appear to be an absurd requirement.

Adverse claim filed.

The last, or tenth, insertion being essential, it follows that adverse claims may be filed until the expiration of the day upon which the last issue of such weekly publication is made. Very respectfully,

J. M. ARMSTRONG, Acting Commissioner.

No. 45. DOLLY VARDEN MINE.

1. District land officers are not expected or required to transact business out of office hours or on Sunday.

2. There is no law of the United States, or of the State of Nevada, prohibiting them from so doing.

3. An adverse claim presented to the receiver and received by him on Sunday, the last day of publication, was filed within the legal period, and entitles the adverse claimant to a stay of proceedings.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., July 17, 1879. SIR: I have considered the appeal of George A. Sayer and Samuel Goldstone, from your decision of March 30, 1878, rejecting the adverse claim of the appellants to the application of the Hoosac Consolidated Gold and Silver Mining Company for a patent for one thousand five hundred. linear feet of the Dolly Varden Mine, Secret Canyon mining district, Eureka, Nev., for the reason that said adverse claim was not filed within the time required by law.

You held that "officers are not expected nor required to transact official business after office hours, nor to leave their offices open for the transaction of business on Sun

day;" and as "this adverse claim can only be considered as filed on Monday, the seventeenth of September, 1877, it must be rejected."

From the statement of facts presented in this case, it appears that the sixtieth day of publication of notice of the application fell on Sunday, September 16, 1877; that about 10 P.M. of the previous day, Mr. Sayer presented his adverse claim and tendered fees for the filing of the same to the register of the land office, who refused to receive said adverse claim or the fees for filing the same; that on the following day Mr. Sayer presented the adverse claim to the receiver of said land office, who accepted it, filed it, and received the fees for the same.

While it is true that officers are not expected nor required to transact business out of office hours, or on Sunday, still there is no law of the United States prohibiting them from doing such business, nor am I able to find any law of the State of Nevada which prohibits the transaction of ordinary business on the Sabbath day.

Both of said officers might properly have refused to receive such application either out of office hours or on the Sabbath day, but the receiver did receive the adverse claim, and filed the same, and by so doing, if suit was commenced within the time prescribed by law, I am of the opinion that the rights of the appellants were protected.

Your decision is therefore reversed, and the papers transmitted with your letter of May 8, 1879, are herewith returned. Very respectfully,

The Commissioner of the General Land Office.

No. 46. 1. A town site is an adverse claim.

C. SCHURZ.

2. The party who sets up the adverse claim should commence the suit, except in cases where the adverse claimant is in possession of the premises.

DEPARTMENT OF JUSTICE,

OFFICE OF ASSISTANT ATTORNEY-GENERAL,

WASHINGTON, D. C., August 7, 1871.

SIR: I have considered the case of Theodore H. Becker v. Citizens of Central City, Colorado.

Becker claims under the act of July 26, 1866 (14 Stat. 251), three thousand linear feet of the mineral deposit

near Central City, Colorado, known as the Gunnel Extension or White lode.

He alleges that he has fully complied with all the provisions of the act and the rules of the General Land Office under it. His claim, however, is opposed by certain citizens of Central City, Colorado, who before the expiration of the ninety days provided in the third section, filed with the Commissioner of the General Land Office a remonstrance protesting against the issuing of the patent, representing that said Gunnell Extension or White lode, as claimed by Becker, extended to a considerable distance under town lots and improvements owned and occupied by them in said city.

The Commissioner, in a letter to the Register and Receiver, May 6, 1870, said: "Although such protests do not, in the opinion of the Commissioner, constitute such an adverse claim as would properly come within the purview of the sixth section of the mining act, yet in view of the magnitude of the interests represented to be involved, it is deemed but fair to have the rights of all the parties determined by the local tribunals, and you will accordingly notify all parties claiming adversely to said application of Becker that, they will be allowed sixty (60) days from the date of your notification, in which to institute proceedings in court to adjudicate their respective rights in the premises." This apparently plain decision was, it seems, misunderstood by the petitioners, who were in doubt whether the duty of commencing proceedings in the courts devolved. under it upon them or the claimant. December 12, 1870, the Commissioner further instructed the Register and Receiver that it was the duty of the town lot claimants to commence such proceedings. From the decision of the Commissioner the town claimants have appealed.

The case presents two questions for consideration:

1. Is the claim of the petitioners an adverse claim, within the meaning of the sixth section?

2. Who must commence the proceedings in the local courts?

First. The second section provides that any person or association claiming a vein or lode of quartz or other ore rock in place bearing gold, etc., and who has previously oc

cupied and improved the same in accordance with the local customs of miners, and expended thereon not less than one thousand dollars in labor and improvements, "and in regard to whose possession there is no controversy or opposing claim," may "file a diagram of the same, so extended laterally or otherwise as to conform to local laws," and "enter such tract and receive a patent therefor granting such mine," etc.

The privilege is here given of entering certain premises or "tract," as it is called, provided all the conditions stated have been complied with, and it is a "tract," in "regard to whose possession there is no controversy or opposing claim."

Possession is one of the elements of title, and is made by this statute a necessary subject of inquiry. If found to be in any one other than the claimant, it is a bar to the issuing of a patent, at least until adjudged wrongful in the manner pointed out in the sixth section.

There can be no question about this, if the possession relates to the vein or lode, the mine itself; but it is said that it is otherwise if it relates to the surface of the land.

Adverse claim.

In the present case, the application for a patent includes the surface and soil as well as the mineral. I am of opinion that the persons in possession of this surface are adverse claimants, and have an adverse claim within the meaning of this law, and are entitled to be heard in the local courts, before a patent is issued.*

Second. Who should commence the proceedings?

The sixth section reads as follows: "That whenever any adverse claimants to any mine located and claimed as afore

*The acts giving the right to mine upon land appropriated for grazing and agricultural purposes, do not apply to the case of a town lot occupied for hotel purposes. Lands settled in good faith, and built up as mining towns, must be protected as incidental to the business of mining. Fitzgerald v. Urton, 5 Cal. 308.

The occupant of mineral land may rely upon his possession against a mere trespasser, unless he uses the land for grazing or agricultural purposes. Id. In permitting persons to go upon public lands occupied by others for the purpose of mining, the Legislature has legalized what would otherwise have been a trespass, and the act can not be extended by implication, to a class of cases not specially provided for. Id.

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