HOMESTEAD ENTRY-PRACTICE.

LEWIS PETERSON.

The local offi ce should not allow a homestead entry to be made for land involved in a prior contest, pending on appeal before the Department.

Secretary Vilas to Commissioner Stockslager, January 23, 1889.

August 29, 1887, Lewis Peterson made application at the land office at Olympia (now Seattle), Washington Territory, to enter under the provisions of the homestead law, Lots 3 and 5, the SE. of the SE. and the NW. of the SE. of Section 32, T. 24 N., R. 1 W., and tendered the fees required by law.

The local officers rejected the application on the same day "for the reason that the same conflicts with the cash application of William Wright, under his timber land sworn statement No. 2372, made December 30, 1885, and for the further reason that said tracts are in contest between said William Wright claiming said land or part thereof under his above timber land application, and final proof thereunder, and Hans Larson, claiming said land by virtue of his pre-emption declaratory statement No. 10,184, which contest is now pending before the Hon. Secretary of the Interior on appeal.”

August 5, 1886, Wright tendered proof and payment for the land embraced in his sworn statement and Larson filed a protest against the acceptance of the same, and at the date of your decision, the case was still pending. You held that the tracts cannot be entered until the contest shall have been finally disposed of.

After the local officers have rendered a joint report and opinion in a contested case and have forwarded to the Commissioner of the General Land Office, all the papers in the case as required by rules 51 and 52 of practice, Rule 53 provides that "the local officers will thereafter take no further action affecting the disposal of the land in contest until instructed by the Commissioner." The decision appealed from was in conformity with this rule, and it is affirmed. Wade v. Sweeny (6 L. D., 234); Hotaling v. Currier, (5 L. D., 368); Stroud v. De Wolf, (4 L. D., 394).

Herewith are returned the papers in the case.

MINING CLAIM-PRACTICE-PROTESTANT-APPEAL.

BRIGHT ET AL. v. ELKHORN MINING CO.

A protestant against the issuance of mineral patent who stands solely in the relation of amicus curiæ, and who alleges no interest in the result of the application for patent, is not entitled to the right of appeal.

A mineral claimant cannot ask the Department to say that a protestant, who alleges an adverse interest, is barred by failure to properly adverse within the limited time, unless he establishes the facts which cause such time to begin to run; such a protestant therefore has a right to show that proper action was not taken to bring him within the statutory period of limitation, and to that extent only he is entitled to the right of appeal.

Secretary Vilas to Commissioner Stockslager, January 25, 1889.

This is an application for certiorari filed by A. F. Bright and T. T. Nicholson, praying that the record in the above case be certified to the Department for consideration upon their appeal from your decision of July 25, 1888, dismissing their protest.

This case arises upon a protest filed by Bright and Nicholson against the issuance of patent to The Elkhorn Mining Company for mineral entry No. 1099 of the A. M. Holter Lode, Helena, Montana, said protest alleging that:

The location of said claim was illegal, in that the boundaries were not defined by stakes at the corners thereof, and that the claim as surveyed and entered embraced ground lawfully claimed and possessed by them as owners of the Sophia Lode.

You dismissed said protest, but, subsequently, granted a rehearing, upon the ground of newly discovered evidence, and upon the further ground that the application for rehearing alleged that notice of said company's application for patent and the official plat of its claim were not posted upon the premises during the statutory period of publica tion.

Upon said hearing the local officers found that the posting on the claim was duly made, and recommended that the protest be dismissed.

On July 13, 1888, your office affirmed the finding of the local officers, dismissing the protest, and closed the case. Whereupon, the protestants filed an appeal from said decision, which you declined to transmit, upon the ground that:

A protestant who is not a party litigant and appearing merely as amicus curia has no right of appeal. I decide therefore that said protestants, Bright and Nicholson, have no right of appeal, and decline to forward the papers.

The question presented by this application is, whether in any case a protestant may be entitled to the right of appeal from the decision of the Commissioner of the General Land Office.

A person protesting against the issuance of patent upon a mineral claim, who stands solely in the relation of amicus curiæ, and who alleges no interest in the result of the application, can not question the judgment of the land office in passing upon said application and protest, and is not entitled to the right of appeal from such decision. And

this is so whether the mineral claimant has or has not complied with the terms of the statute, because if the protestant claims no interest in the suit, the right of the mineral claimant will be considered solely as between the claimant and the government. But where a protestant shows possession of an interest, either present or prospective, depending upon the final determination of a protest against the issuance of patent to a mineral claimant, and shows that the claimant has failed to comply with the terms of the statute, as to the posting and publication of notice of his claim and application for patent, or any other failure to comply with the terms of the statute, whereby the limitation of the statute ought not to operate against the protestant, he is entitled to the right of appeal upon said protest, although no adverse claim was filed within the period prescribed by the statute.

Section 2325 of the Revised Statutes provides that:

Any person, association, or corporation authorized to locate a claim under this chapter, having claimed and located a piece of land for such purposes, who has, or have, complied with the terms of this chapter, may file in the proper land office an application for a patent, under oath, showing such compliance, together with a plat and field-notes of the claim or claims in common, made by or under the direction of the United States surveyor general, showing accurately the boundaries of the claim or claims, which shall be distinctly marked by monuments on the ground, and shall post a copy of such plat, together with a notice of such application for a patent, in a conspicuous place on the land embraced in such plat previous to the filing of the application for a patent, and shall file an affidavit of at least two persons that such notice has been duly posted, and shall file a copy of the notice in such land office, shall thereupon be entitled to a patent for the land, in the manner following

... At the expiration of the sixty days of publication, the claimant shall file his affidavit, showing that the plat and notice have been posted in a conspicuous place on the claim during such period of publication. If no adverse claim shall have been filed with the register and receiver of the proper land office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter.

The applicants in this case allege that notice of the application for patent was not made as required by the statute; that no notice was given by posting on the claim, and that said notice was illegal, in that the boundaries of said claim were not defined by stakes, and that the claim as surveyed and entered embraced ground lawfully claimed by applicants as owners of the Sophia Lode; that they had no notice of said application, and therefore no opportunity to file an adverse claim and to proceed in the courts to assert their rights as adverse claimants under the provisions of the statute.

These protestants show by their application that they are not mere protestants without interest in the result of the suit, but are claimants who assert a present interest, and that the application for patent embraces ground lawfully claimed by them as owners of the Sophia Lode. They allege that notice of the application for patent and the official

plat of the claim were not posted upon the premises during the period of publication, and that protestants had no notice of such application. If these allegations are true, they show that protestants had no opportunity to file an adverse claim within the period of publication prescribed by the statute, and they are therefore by the very terms of the statute not barred from urging their objection to the issuance of patent, and to assert their rights as adverse claimants, no legal notice having been given. The statute in express terms provides that:

If no adverse claim shall have been filed with the register and receiver of the proper land office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter.

If the claimant has complied with all the terms of the statute and no adverse claim is filed within the prescribed period of publication of notice of the claim and application for patent, it will bar all persous from afterwards asserting an adverse claim, and no objection from third parties to the issuance of patent can thereafter be heard, because in the absence of an adverse claim filed within the period of publication, it will be presumed that the applicant is entitled to a patent and that no adverse claim exists. This presumption is conclusive, and will bar all persons from asserting an adverse claim after the period of publication prescribed by the statute. But if the mineral claimant fails to comply with the terms of the statute as to posting, publication of the application for patent, and plat showing the boundaries of the claim, or with any other requirement of the statute affecting the rights of adverse claimants, no such presumption arises and any one having a present or prospective interest in the subject matter of the suit, which may be affected thereby, may by protest allege such failure, and also show that he has an interest in the result of said suit, and upon such protest he will be entitled to the right of appeal and to have the issues raised by such protest passed upon by the Department.

It is not pretended that the Department has jurisdiction to determine or pass upon controversies between adverse claimants as to the right of possession of a mining claim, or upon any question as to the priority of such right, but it is the only tribunal having jurisdiction to pass upon the question whether the terms of the statute have been complied with, and, therefore, if it is shown that an applicant for patent has failed to comply with the terms of the act governing the disposal of mining claims, the Department may require the claimant to make full compliance with the terms of the statute, and to make new publication of notice of claim and application for patent, so that during the period of publication made in terms of the statute an adverse claimant may file notice of his claim and commence proceedings in the courts to determine the right of pos session, as provided for by section 2326 of the Revised Statutes. The mineral claimant cannot ask the Department to say that the protestant

is barred by failure to properly adverse within the limited time, unless he establishes the facts which cause the time to begin to run; and since that serious consequence results to the protestant upon proof of such facts, he has an interest and a right to show that the steps were not taken to set the statutory period of limitation in motion against him. To that extent, he is involved, and only to that extent has he the right of appeal.

This is not in conflict with the rulings of the Department but on the contrary this principle has been recognized by its rulings. It is true that in the case of McGarrahan v. New Idria Mining Co. (3 L. D., 422), the Department held that "the plaintiff having filed no adverse claim during the period of publication must be regarded as a protestant, and therefore not entitled to the right of appeal." But in this case, the protestant merely alleged that the claim in controversy conflicted with a prior claim of protestant, but did not allege any failure on the part of claimant to comply with the terms of the statute.

In the case of Bodie Tunnel and Mining Co. v. Bechtel Consolidated Mining Co. et al. (1 L. D., 584), Secretary Kirkwood said:

I desire to say that while I am of opinion that controversies between adverse mining claimants cannot be heard and determined before this Department, I am nevertheless of the opinion that where, under the last clause of section 2325, third parties present evidence by affidavits, etc., to show that au applicant has failed to comply with the mining statutes, if the evidence is of such character as to entitle it to credit, and if the allegations are such as, if proven in regular proceedings, would show that the law has not been complied with, that patent under the law ought not to be issued, or that you have no jurisdiction to issue the patent, then it is your duty to order an investigation as between the government and the applicant, as in similar cases of agricultural entries.

The case of Branagan et al. v. Dulaney (2 L. D., 744) came before the Department upon the appeal of Dulaney from the action of your office holding for cancellation the entry of Dulaney to the Hidden Treasure lode claim upon the protest of Branagan and others against the issuance of patent to said claim. Dulaney, after due publication of notice and application, applied for a patent for said claim, to which Branagan and others filed protest, alleging that they were the owners of several claims with which the Hidden Treasure claim conflicted, and that Dulaney had failed to make the requisite annual expenditure thereon, and other charges of failure to comply with the law. A hearing was ordered by the Commissioner to determine these charges. The Commissioner found adversely to the mineral claimants and held said entry for cancellation From this decision Dulaney appealed, and the Department considered upon said appeal all the issues raised by said protest, except as to the question of the possessory right of the parties to the controversy. In passing upon said case, Secretary Teller said:

These protestants should have adversed the Hidden Treasure, but they merely protested. Having failed to file an adverse claim and institute suit as provided by the statute (section 2325-26, Revised Statutes) they must be regarded as protestants, having no rights to be considered by the Department.