great majority of like instruments, and are, I think, good and sufficient, and meet all the requirements of the law. The objection to the recording of the notice of location is not well taken. The recording was sufficient under the mining act of Nevada, then in force. The last and principal point made by the Daney Co. is that from the date of application for patent in October, 1866, and certain proceedings in that connection in January, 1867, until application to purchase and entry in June, 1874, the Sapphire Co. had abandoned their claim, and that it was forfeited under the local rules and regulations, and subject to relocation and to the Daney Co.'s location. The long delay in making entry is a circumstance entitled to some weight, and if it had been persisted in after the company had been required by your office to proceed in the completion of title, and in the presence of an adverse claim, it might be considered as a waiver of all claim, and the application set aside and the premises again thrown open to relocation and occupation. An appropriation of the premises. But I think until some such proceeding is had, a bona fide application for patent under the act of 1866, is such an appropriation of the premises embraced therein as takes. them out of the operation of the local laws. No forfeiture in this case can be claimed under the fifth section of the act of 1872, for the time for the annual expenditure of labor and improvements has been extended to January 1, 1875. But the Sapphire Co. denies that it has abandoned its claim, and asserts that it and its grantors have been in the open and notorious possession of the claim from its location to the present time. But parties file affidavits in support of their respective claims. I do not think that the charge of abandoment is sustained. The facts, which are recited at length by you in your decision of November 23, 1874, show such compliance by the Sapphire Co. with the requirements of law as entitle it to a patent as claimed. Your decision to this effect is affirmed, and the papers in the case transmitted with your letter of February 9 last are herewith returned. Very respectfully, C. DELANO, Secretary. The Commissioner of the General Land Office. No. 2. Publication of notice of application for patent. WASHINGTON, D. C., December 1, 1876. SIR: I have considered the appeal of S. H. Foley et al., from your decision of May 12, 1876, adverse to their claim in the matter of the application for a patent for the Omaha Quartz Mine, Sacramento, California. The protestants state that the point upon which they rely in the appeal "is as to the sufficiency of the publication," or the failure to comply with the law in the matter of publication of notice. The notice was published in the Nevada Transcript, a paper published in Nevada City, a town situated about six miles from the mine, and the publication was made by direction of the register. It appears that in Grass Valley, a town situated about two miles from the mine, two papers are published, a daily and a weekly. It is contended that the notice should have appeared in a paper published nearest the claim. You held that the publication was sufficient. The sixth section of the act of May 10, 1872, provides that the register of the land office "shall publish a notice that such application has been made, for a period of sixty days, in a newspaper to be by him designated as published nearest to said claim." It would seem that the intention of Congress was plain that the notice should appear in a paper published at a point indicated, and the register is authorized to designate said paper, following the plain instructions of the statute, which would seem to point out his duty. In this case, however, he has exercised his discretion, disregarded the papers published at Grass Valley, and selected another. Must be in newspaper published nearest the claim. I see no warrant for the exercise of this discretion. Under the provisions of the statute the public have a right to look to the paper issued nearest the claim as the one in which a notice of application for a patent should appear. If any discretion is allowed a register, where shall it be limited? If he may ignore a paper published two miles from a claim, and designate one published six miles distant, he may designate one published at a much greater distance. This question would not have arisen, had the register performed what I think was clearly his duty, and the instructions of your office should be made so explicit as to allow no opportunity for the question to arise in the future. If two or more papers of repute are published equidistant, or very nearly so, from the claim, the register must designate the one in which the notice shall appear; but in other cases the paper published nearest the claim must be designated, provided the same is a reputable newspaper of general circulation. In the case under consideration, it does not appear that the applicants are in any manner at fault, and to reject their application, when they have in good faith complied with the law and the instructions given them by the local officers, would be a hardship. I can not, however, recognize the action taken as a strict compliance with the law, and the case is returned to be submitted to the board of confirmation for its action, as your action rejecting the adverse claim of Foley et al. is approved for the reasons given. Your decision is modified accordingly, and the papers transmitted with your letter of August 31, 1876, are herewith returned. Very respectfully, Z. CHANDLER, Secretary. To the Commissioner of the General Land Office. No. 3. Publication of notice of application for patent in one newspaper, a portion of the legal period, and a portion in an entirely different newspaper, not a compliance with law; and the parties required to commence de novo. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, WASHINGTON, November 12, 1873. Register and Receiver, Sacramento, California. GENTLEMEN: This office has examined the papers in case of the application of Michael McBride for patent for the Secret Canyon quartz mine, California. It appears that this application for patent was filed in your office, on the third October, 1872, and that thereupon the Register ordered the notice of such application to be published for the period of sixty days, in the Stars and Stripes, a newspaper published at Auburn, California. By the affidavit of John R. Winders, it appears that said notice was published in the Stars and Stripes, for the period of forty-nine days, to wit: from the tenth October to the twenty-eighth November, 1872. It appears that the same notice was published in the Placer Herald, a newspaper published at Auburn, California, from the seventh to the fourteenth day of December, 1872. The mining act of May 10, 1872, makes it the duty of the Register of the land office, upon the filing of an application for patent for a mining claim, to "publish a notice that such application has been made, for the period of sixty days, in a newspaper to be by him designated as published nearest to said claim." In the case under consideration, the notice was published in one paper for a portion of the sixty days, and in another paper the notice was published fourteen days. This office is only authorized to issue patents for mining claims, in cases where the mining acts have been strictly complied with. The mining act provides that the notice shall be published in a newspaper to be designated by the Register as published nearest to the claim, in order to give all parties proper and sufficient notice that such application has been made, to the end that persons holding interests which would be adversely affected by the issuance of the patent as applied for, may file adverse claims, if they desire to do so. The notice of intention to apply for a patent in this case, was not published in accordance with the law, and no patent can issue upon the application as it now stands, and said application is accordingly rejected. You will inform the applicant that it will be necessary for him to commence de novo, and proceed with his application, in accordance with the law and instructions. Of course, no new survey will be required. Very respectfully, * * * WILLIS DRUMMOND, Commissioner. No. 4. Publication of notice of application for patent. WASHINGTON, D. C., June 3, 1874. SIR: I have considered the abstract No. 1, of mineral cases, submitted with the letter from your office of February 18, last, for the action of the Board of Confirmation, under the acts of August 3, 1846, and June 26, 1856; being the claim of Michael McBride to a certain tract of mineral land in the Sacramento district, California. Must be made continuously in one newspaper. It appears, from the statement on the abstract, that notice of this claim was published in one newspaper for the period of forty-nine days, and in another for the remainder of the sixty days required by the sixth section of the act of May 10, 1872. This is not, in my judgment, such a substantial compliance with the provision of the act as to properly bring it within the equitable jurisdiction of the board. I am, therefore, constrained to return the abstract without my approval. I am, sir, very respectfully, your obedient servant, No. 5. Publication of notice of intention to apply for a patent on a mining claim must not be made without the knowledge of the Register of the land office. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, WASHINGTON, D. C., May 7, 1874. Register and Receiver, Central City, Colorado: GENTLEMEN: I have carefully examined the papers in the case of the application of J. B. Lewis, for patent for fourteen hundred linear feet of the Cascade lode, Cascade mining district, Clear Creek County, Colorado. This application was filed in the local office on March 20, 1873, and the notice published in the Daily Colorado Herald on the same day, and thereafter for the period of sixty days. The mining act of May 10, 1872, provides for the patent |