said, shall appear before the approval of the survey, as provided in the third section of this act, all proceedings shall be stayed until final settlement and adjudication in the courts of competent jurisdiction of the rights of possession to such claim, when a patent may issue as in other cases."

Who shall commence suit.

As a general rule the suit should be commenced by the party who sets up the adverse claim. I think this rule should apply to all cases, except those in which the adverse claimant is in the evident and open possession of the premises, tract, lode, or vein, or a portion of the same. When thus in possession, an adverse claimant who attacks his right to possession should certainly be required to take the initiative. To hold otherwise would be against all the

analogies of the law.

In the case now under consideration, the adverse claim- . ants are in the evident and open possession of the surface of the ground or a portion thereof, and under the rule as above stated should be made defendants to the proceedings which Becker should be required to bring against them.

I advise a reversal of the decision of the Commissioner, and that sixty days be given to Becker after the receipt of notice within which to commence proceedings against the parties in possession.

Very respectfully,

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

Concurred in August 9, 1871, by B. R. Cowen, Acting Secretary.

No. 47. In case of judgment against applicant for a portion of his claim, he may proceed to secure title to remainder on showing the requisite amount of expenditure in labor and improvements thereon, if in other respects according to law.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, D. C., February 27, 1872.

Register and Receiver, Central City, Colorado Territory. GENTLEMEN: * **This office holds, therefore, that

the foregoing verdict and judgment are fatal to the application of Bradley et al., to the extent of five hundred feet of the premises claimed by them as Rhode Island Lode, leaving, however, two hundred and fifty feet of the claim uncontested.

If the claimants have expended an amount equal to one thousand dollars upon this uncontested part in labor and improvements, and can in other respects come within the law, there is perceived no reason why they can not proceed and obtain title to the portion of their original claim not affected by said verdict and judgment, should they desire to do so. * * * Very respectfully, etc.,

WILLIS DRUMMOND, Commissioner.

No. 48. Proceedings necessary after determination of suit upon the adverse claim.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, WASHINGTON, D. C., Oct. 30, 1873.

H. B. MORSE, Esq., Central City, Colorado.

SIR: In reply to your letter of the eighteenth instant, I have to state that the records of the local land office at Central City, Colorado, will show the present status of the application of Jacob Tascher for patent for the Alger lode.

On the fourth March, 1872, the Register and Receiver were directed to suspend proceedings in the case, awaiting the final determination of a suit commenced by Mr. Mallon, upon an adverse claim, asserted by him against said application for patent.

If, as you state, the suit commenced against the applicant for patent has been decided in favor of the applicant, a copy of the decree of the court in the case should be filed with the Register and Receiver, and a certificate of the clerk of the court that no suit is pending against said applicant brought by the adverse claimant, bringing into question the title to said property.

Upon the filing of these papers with the Register and Receiver, they will allow the entry to be made.

Very respectfully, your obedient servant,

WILLIS DRUMMOND, Commissioner.

No. 49. Adverse claim sworn to before an officer out of the land district, but whose jurisdiction extended into the land district, and who acted within his jurisdiction, allowed.

DEPARTMENT OF THE INTERIOR,

OFFICE OF THE SECRETARY,

WASHINGTON, D. C., February 17, 1877.

SIR: I have considered the case of the Corning Tunnel, Mining, and Reduction Company v. Wm. G. Pell, Samuel Cochran, and John W. Nicholson, applicants for patent for fifteen hundred linear feet of the Slide lode, Gold Hill mining district, Boulder county, Central City, Colorado land district, on appeal from your decision of November 3, 1876, adverse to the Corning Company.

The facts of this case are as follows, to wit: On November 24, 1875, W. G. Pell, Samuel Cochran, and John W. Nicholson filed an application in the local land office for a patent for fifteen hundred linear feet of the Slide lode, Gold Hill mining district. Sixty days' notice, by publication in the Weekly Sunshine Courier, from December 4, 1875, to and including February 12, 1876, was also made, and the plat and notice were properly posted on the claim and in the register's office.

A duly certified abstract of title from the records of Boulder county shows that said lode was discovered July 26, located July 30, and recorded July 31, 1875. Applicants also show a compliance with the law, and have record title of said location. The Corning Tunnel, Mining, and Reduction Company, by F. A. Squires, president, filed an adverse claim against said application January 20, 1876, and commenced suit by ejectment to determine the right of possession of the tract in question in the district court of Boulder county on February 7, 1876.

Mr. Squires alleges that the Slide lode is within the location of the tunnel site of the company which he represents; that said Slide lode was discovered after the tunnel site, and is a blind lode; that said tunnel site was located in conformity with the mining act of May 10, 1872; that said company have expended a large amount of money; and that their rights are prior and superior to those of the applicants. A copy of the location notice shows that George C. Corning, A. J. Mackey, James A. Carr, and Daniel A. Robinson lo

cated and recorded said tunnel site September 18, 1872. They made a second location of the same July 9, 1873, wherein the tunnel is described as seven feet high, six feet wide, and one hundred and thirty feet in length.

Said company have record title to said tunnel site and location. One of your reasons for rejecting the adverse claim is that said claim was not sworn to within the land district where the mining claims are located. The facts relative to this matter are that the adverse claim was sworn to before A. J. Mackey, deputy-clerk of the district court in and for Boulder county, and although there is no testimony showing the exact part of the county where the oath was administered, it is shown that the office and residence of said clerk were in the town of Boulder, iu said county, and it is probable the affidavit was made at that place. Now the line between the Central City land district and the Denver land district runs through Boulder county, leaving the locus of the town of Boulder in the Denver district, and the mining claims in the Central City district. Section two thousand three hundred and thirty-five of the Revised Statutes of the United States provides that "all affidavits required to be made under this chapter may be verified before any officer authorized to administer oaths within the land district where the claims may be situated." I am of the opinion that under this statute an officer authorized to administer oaths within the land district may administer the same without the district, but within the jurisdiction. I do not think the cases referred to in your decision are in point, for the reason that there is a manifest difference between the acts of the Commissioner, who has authority only to administer oaths in Califorma for Nevada (as in The Dardanelles Mining Company v. The California Mining Company case, Copp's Mining Decisions, p. 161), and the acts of an officer in the State, exercised within his jurisdiction, where that jurisdiction extends within the land district where the claims are located.

Decision.

Where suit is brought by the adverse claimant, under the seventh section of the act of May 10, 1872, within the time required by law, it is only necessary to pass upon the

regularity of the adverse claim, leaving the rights of the parties to be determined by the court.

Your decision is reversed, and the case remanded to your office, to await the judgment and decree of the court before which suit is pending.

The papers transmitted, with your letter of February 12, 1877, are herewith returned.

Very respectfully,

Z. CHANDLER, Secretary.

To the Commissioner of the General Land Office.

No. 50. Exception inserted in patents under acts of 1866 and 1870, in regard to liens.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, WASHINGTON, D. C., June 19, 1871.

Register and Receiver, Central City, Colorado.

GENTLEMEN: On the ninth day of February, 1870, the Franklin Silver Mining Company of Colorado, by their agent, A. Blackman, filed in your office an application for a patent for eight hundred feet in length, by fifty feet in width, on the Franklin lode, a silver and gold-bearing vein of rock in place, and situated in Idaho mining district, Clear Creek county, Colorado.

*

* * The adverse claimants do not claim identity of Franklin with the Miner's Friend, or with the Williams lode, but the nature of their objections seems to be:

First. An alleged interference with surface ground pertaining to the latter lodes according to local usages, claiming that the Franklin lode, or Crevice, is not in the center of the ground finally surveyed for them under their said application; and,

Second. That the patent should not issue to said company by reason of a lien they have upon a portion of the lode.

With reference to the first of these objections, it is proper to state that, upon a critical inspection of the plat of said final survey of the Franklin lode, the surface ground, fifty feet in width for the convenient working of the mine, as fixed by the law of Colorado Territory, is shown to embrace the shafts and buildings pertaining to said Franklin lode, the