general 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 1,200 feet, and north 36° east 1,390 feet. The survey represented the tract as extending from the discovery shaft south 49° 39′ east 1,200 feet, and north 45° 39′ west 1,400 feet.

There was then no evidence in the case showing that mineral monuments No. 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. I state these facts for the purpose of showing that the adverse claimants are not prejudiced by the filing of the corrected survey, for it covers the identical discovery shaft included in the original published notice, which notice they disregard. They did not file any adverse claim under it, within ninety days from its publication, or at any time. If they could safely omit to file, under that notice, it seems to me that they can safely do so under the present corrected survey. The original survey was approved before any adverse claim was filed. That survey was not set aside. It was ordered to be corrected. It has been corrected. It may well be doubted whether it, as corrected, is such a new survey as would permit the filing of an adverse claim between the dates of the approval of the original and the approval of the corrected survey, even admitting that the law allowed adverse filings at any time before the approval and did not limit them to ninety days from the publication of the notice. But does the law permit such adverse filings after the expiration of ninety days from the publication of the notice? The second section of the mining act of July 26, 1866, provides that the claimant who has previously occupied and improved a vein or lode, and expended in labor or improvements, not less than one thousand dollars, shall file, in the local land office, a diagram of the same, so extended laterally, or otherwise, as to conform to the local laws and that it shall be lawful for him to enter such tract and receive a patent therefor.

The third section provides that upon the filing of the dia

gram, as provided in said second section, and posting the same in a conspicuous place on the claim, together with a notice of intention to apply for a patent, the Register of the land office shall publish a notice of the same in a newspaper published nearest to the location of said claim, and shall also post such notice in his office, for the period of ninety days: "and after the expiration of said period, if no adverse claim shall have been filed," (these words seem clearly to require the adverse claim "to have been filed" prior to the expiration of the ninety days notice,) "it shall be the duty of the Surveyor-general, upon application of the party, to survey the premises and make a plat thereof, indorsed with his approval, designating the number and description of the location, the value of the labor and improvements, and the character of the vein exposed; and upon the payment to the proper office of five dollars per acre, together with the cost of such survey, plat and notice, and giving satisfactory evidence that said diagrams have been posted on the claim during said period of ninety days, the Register of the land office shall transmit to the General Land Office said plat, survey and description, and a patent shall issue therefor." The plain meaning of this is, that the Register shall give the notice required for the period of ninety days, and that parties having adverse claims shall have the entire ninety days in which to file their claims, and that upon the expiration of the ninety days, immediately upon its expiration, the very next day thereafter, if there have been no adverse claims filed, the claimant shall have the right to apply to the Surveyor-general for a survey, and upon its being approved and the land paid for and the proper papers forwarded to the Commissioner, he shall be entitled to his patent. Ninety days is given in which to file adverse claims.

They must be filed within that period. This is certainly a reasonable notice. It is much longer than publication is generally required by State laws, to bring in absent parties and acquire jurisdiction over important interests.

Is this rule, thus clearly stated, changed by the sixth section of the same act?

That section provides, "That whenever any adverse claimants to any mine located and claimed as aforesaid 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 court of competent jurisdiction, of the rights of possession to such claim, when a patent may issue as in other cases." The object of this section is, to declare what shall be done when an adverse claim has been filed. It is not to declare when an adverse claim shall be filed.

That had already been done in the third section. It

recites, that when "any adverse claimants" "shall appear before the approval of the survey, as provided in the third section of this act," then all proceedings shall be stayed, etc. Of course it must be "before the approval of the survey," if done in accordance with the third section, for that section requires the adverse claim to be filed within the ninety days. Any other construction would allow an adverse claim to be filed at any time before approval of the survey. A survey might be in the main correct, but yet erroneous in description or otherwise, in some slight particulars, and yet, in such a case, an adverse claim might be filed which of itself would suspend the approval of the survey until it was adjudicated. Another claim might be filed before that was disposed of or the survey approved, and thus adverse claims might lap over each other, until it would be almost an impossibility for a claimant to be in a condition where he could demand an approval of his survey and the issuing of his patent.

A construction which leads to such consequences ought not to prevail. I have concluded to adopt the one which requires the filing to be made within the ninety days.

Your decision is, therefore, reversed, and the papers, together with your letter of the 28th ult., herewith returned. Very respectfully,

C. DELANO, Secretary.

WILLIS DRUMMOND, Com'r General Land Office.

Legal Notice.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., Dec. 8, 1871. Register and Receiver, Central City, Colorado:

GENTLEMEN: It again becomes necessary to call your attention to the fact, that in many cases the mining diagrams and notices are too indefinitely drawn to answer the requirements of the law or instructions.

The purpose of the diagram and notice is analogous to a legal summons, by which any and all parties are notified that unless, within a given time, they come forward and defend any right or interest they may have in certain premises, their right to do so shall become barred, and judgment rendered for claimant.

This being the case, you will at once perceive the importance of having the diagram and notice very carefully prepared. An honest claimant will certainly have no hesitation in giving such a description of what he claims, as will enable any neighboring claimants to fully inform themselves of his intentions.

* * * Should it be shown in any of the cases now pending, that parties have been injuriously affected by proceedings under a diagram or notice drawn in a manner calculated to deceive, or throw them off their guard, it will of course be the duty of this office to open the case for investigation, or to reject the claim, and require proceedings thereon de novo.

A Public Highway is not an Adverse Claim.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., Dec. 29, 1871. Messrs. WILLIAMS & CARPENTER, Sacramento, California: GENTLEMEN. * * * It would appear from Mr. Mulli's affidavit that his whole objection to the granting of a patent on said application, is based upon the fact that 224 feet of a certain public highway is embraced thereby.

*

* * Inasmuch as Mr. Mulli has not claimed the mine in question, or any portion thereof, adversely to said applicant, and as the right of way is fully protected by said eighth section (Act of July 26, 1866), it is held, that Mr. Mulli's protest is not such an adverse claim as is contemplated by said sixth section (Act of July 26, 1866), and the Register's action in refusing to recognize it as such, is hereby affirmed.

Should a patent be issued upon said application of Mr. Blakely, the right of all parties to the use of said highway will be as secure under the law, as if the title had remained in the Government.

*

*

Very respectfully,

WILLIS DRUMMOND, Commissioner.

Exemplifications furnished to Interested Parties Only. DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., Jan. 2, 1872. JOHN N. WHITING, Esq., No. 70 Wall Street, New York City: SIR: I have to acknowledge the receipt, by reference from C. B. Boynton, Recorder of this office, of your letter of thirtieth ultimo, requesting a certified copy of the patent issued for the Daniel Peters lode, etc., with reference to which you are informed, that before the desired exemplification can be furnished, it will be incumbent upon you to

show what interest you, or those for whom you are acting, have in the premises in question, in order that this office may be able to determine whether, under the law, the exemplification can properly be furnished.

Very respectfully,

WILLIS DRUMMOND, Commissioner.

Proof as to Mineral or Non-Mineral Character of every Subdivision Required in Contests between Miners and Agriculturists.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, WASHINGTON,. D. C., Jan. 24, 1872. Register and Receiver, Sacramento, California:

GENTLEMEN: * * * Inasmuch as no proof as to the mineral or non-mineral character of the other tracts upon which mineral affidavits have been filed was offered at said hearing, they will be considered as mineral until the same shall be disproved, in accordance with circular of May 6, 1871. * * *

Very respectfully,

Your obedient servant,

WILLIS DRUMMOND, Commissioner.

After Entry is Made, the Burden of Proof Rests upon the Party alleging the Mineral Character of the Land.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., Feb. 12, 1872. SIR: * ** The burden of proof should be upon the mineral claimants where, in a case like the one under consideration, the land has been returned as agricultural, has been entered under the pre-emption law, and proof and payment have been made. It must appear to the satisfaction of the Department and the officers under it, that land sought to be acquired under the pre-emption law is agricultural in its character before an entry can be allowed; but a case having been made out, an entry allowed, and payment made, the claimants have a right to insist that the onus probandi shall be upon him who then alleges that the land is mineral. * * *

Very respectfully,

B. R. COWEN, Acting Secretary. Hon. WILLIS DRUMMOND, Com'r General Land Office.