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But where the subsequent surveys applied for represent mere conflicts with prior surveys, there is no identity of claim, and no confusion in your office or elsewhere.

If application for patent upon the prior survey has not been made to the register and receiver, there is no obstacle to the application for patent by the owner of the subsequent survey, and in that event the party who represents the first survey must protect himself by filing an adverse claim and suit in court. He loses his affirmative position as applicant by his own neglect. In any event, questions of possessory right must be settled in court, and not by the Surveyorgeneral.

If no adverse claim is filed and no suit commenced, then this office will pass upon the validity of the case.

The mines in question are not the same locations as the protestant's, but are separate and distinct locations of certain mines discovered and located in conformity with the law (see section 2323 U. S. Revised Statutes).

The surveys of said mines submitted by you have been correctly made, the boundaries carefully defined, the conflicts with prior surveys shown in accordance with instructions, and every requirement seems to have been complied with; to this there has been no denial.

The law which governs in cases of conflicting claims where only a portion of the surface ground is in conflict, must necessarily apply in cases of this kind, where the entire surface claimed is in conflict.

You are therefore instructed to approve said surveys, and interested parties must protect their rights by filing adverse claims. Very respectfully,

C. W. HOLCOMB, Acting Commissioner.

No. 4. Union Tunnel-Secretary's decision.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., August 9, 1880.

SIR: I am in receipt of your letter of the twenty-fourth of June, accompanied with the papers in the matter of the protest of M. Shaughnessy against approval by the Surveyorgeneral of Utah Territory, of the surveys of the following mining claims, to wit: The Orient, the Occident, Union Tunnel No. 1, and Union Tunnel No. 2, situate in Uintah

Mining District, in said territory. The claims purport to have been located in pursuance of section 2323 of the Revised Statutes, notices of the location of which were regularly recorded. The surveys above mentioned are of those locations. There is no charge of misconduct against the deputy who executed the surveys, nor is the correctness of his work in any way questioned. The protest is based upon the alleged fact that the surveys embrace the surface ground of other claims of prior location, founded upon discoveries made from the surface, which claims have already been surveyed, and for which, it is alleged, applications for patents are pending.

Upon the filing of the protest in his office, the Surveyorgeneral forwarded the same to your office, together with the field notes and plats of the surveys, and copies of the said notices of location, and asked to be instructed in the premises. Finding the facts to be as above stated, and that the locations were correctly surveyed, your office, under date of June 11, 1880, instructed the surveyor-general to approve the said surveys; whereupon the protestant, under date of the twenty-first of June, applied by telegram to have the Surveyor-general instructed to withhold his approval, and to be allowed thirty days within which to appeal from your instructions. You report the whole matter to this Department, and recommend, in effect, that the application be denied. I fully agree with your recommendation.

Claimant entitled to have his location surveyed and plotted under the direction of the Surveyor-general.

In the first place, a claimant having a mining claim which has been located and recorded according to law, has the right to have it accurately surveyed and plotted, in accordance with the location, by or under the direction of the Surveyor-general; and, in order that he may use such survey and plat in the proper prosecution of any right which he may have or allege to patent for such claim from the United States, he is entitled to the Surveyor-general's approval of the survey, and his usual certificate showing that the same was made in accordance with the law and instructions, and that the plat is correct; provided always, that the claimant pays the expenses of the survey (Revised Statutes, secs.

2325, 2326, and 2334); and no one, in my opinion, has the right to be heard before the Surveyor-general, your office, or this Department, by protest or otherwise, in opposition to the making or the approving of such survey, or the granting of such certificate, except the party entitled to the survey. The procuring of an official survey of a mining claim is, from its very nature, an ex parte proceeding, in which the claimant alone is interested. It prejudices the rights of no one, and settles or decides nothing as regards the title of the claim. When such a survey is procured, it may be used as evidence by the claimant in proceedings for patent. If there be a previous application for a patent of the same lands, such survey can not be of any value until such prior application be rejected, because such application would withdraw the lands described from subsequent application. If such prior application be rejected, it would, however, be of value to the party making the claim. It is the kind of evidence expressly provided by law for the purpose of identifying a claim, and showing its exact location and boundaries; and it is a fundamental legal principle that a party may produce competent evidence in support of an asserted right. But such a survey is not conclusive evidence, and may be objected to by an adverse claimant, and overthrown by competent testimony. By this right of objection all adverse parties in interest are fully protected, and may be heard at the proper time before tribunals having jurisdiction and ample authority in the premises.

Until introduced as evidence, survey of mining claim not subject to objection by any person other than the applicant therefor.

Until introduced in evidence for the purposes contemplated by the mining statutes, a survey of a mining claim is not subject to objection by any one but the applicant therefor, nor until then is there any occasion for objection or protest, save by the party for whom the survey is being made. A mining location, or record of location, might with equal propriety be objected to or protested against by parties not claiming under it. In every proceeding for patent under the mining statutes, not only does the tribunal before which the matter is pending examine into and pass

upon the correctness and legality of the survey, but it considers and decides the question of the legality of the location itself. Your office and this department have undoubted authority to make and enforce all proper and needful regulations concerning the manner of making surveys of mining claims, and exercise general supervisory powers in the premises, and may investigate cases of misconduct or inşubordination on the part of deputy surveyors and surveyorsgeneral, and enforce the production of honest and accurate surveys.

Circular of November 20, 1873, approved.

And I think the enforcement of the circular instructions of your office of November 20, 1873, which I fully approve, will secure proper surveys of mines, and leave no cause for complaint by any one.

From what has been said, it necessarily follows that no one except a claimant requesting a survey of a mining claim, has the right of appeal from a proposed or an actual approval or disapproval of a survey of such. claim, or to appeal from any instructions of your office to the Surveyorgeneral regarding such a survey.

The papers submitted by your letter are herewith returned. Very respectfully,

A. BELL, Acting Secretary.

The Commissioner of the General Land Office.

No. 5. Adjoining claimants have no right to protest, object, file evidence, or appeal on a question of survey, until the same is presented as evidence in an application for patent.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, October 26, 1880. SIR: I am in receipt of your letter of the twenty-fifth instant, accompanying the papers in the matter of the surveys of the Beatrice and Monitor mines, claimed by the Ivanpah Consolidated Mill and Mining Company, together with the appeal of Julius A. Bidwell from your instructions therein of August 16, 1880, to the Surveyor-general of California, and a letter lately prepared by you, addressed to the Surveyor-general, directing him to approve and deliver plats of said surveys to the proper parties without further delay.

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You request me to dismiss said appeal, to approve your letter to the Surveyor-general, to give you explicit authority to dismiss all other like appeals, and to direct the Surveyorgeneral to refuse to receive any protest or appeal relative to the survey of a mining claim, except from the party entitled to such survey.

The appeal in this case was filed with the Surveyor-general September 3, and by him forwarded to your office September 6, 1880, nearly a month after my decision in the matter of the surveys of the Occident, Orient, and other mines, under which decision it should not have been accepted and forwarded by the Surveyor-general, provided that officer had received instructions in accordance therewith; but having been received and forwarded, it should have been promptly dismissed by your office.

No right to protest against proposed survey by adjoining

claimants.

The practice of permitting adjoining claimants, or persons not applicants for the survey, in a case like this, to protest, object, file evidence, and appeal, where no case to which they are parties, or in which any question of their right of possession or to a patent is involved, is before this department for decision or final action, is, in my opinion, altogether wrong, and the sooner it is entirely discontinued, the better it will be for all parties concerned. Every proper objection can be made to the survey whenever it is put or offered to be put in evidence in support of an opposing or conflicting right or claim. The anticipation of such objection before the plat is offered in proof in support of a claim seems to me a little worse than useless.

I do not think it necessary for me to approve your letter to the Surveyor-general, for it is not at all likely that he will refuse to obey your instructions. I will say, with reference to letters of that character, directing the approval of such surveys, that they are not to be considered in any way as decisions affecting the merits of cases. They will not preclude objections to surveys presented in support of applications for patent, or adverse claims, and the approvals of surveys by direction from your office are not to be considered as having any more or greater force or weight than

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