signs as "Clerk District Court, Yavapai County, Arizona," but there is no seal attached to the jurat.

Parties, to have their adverse claims considered, must comply with the law and instructions, as fully set forth in circular of June 10, 1872.

You will notify all parties in interest that the said protestants, in the opinion of this office, have failed to make out such an adverse claim as is contemplated by the seventh section of the act of May 10, 1872.

Your action, in allowing the entry of the premises claimed, is accordingly approved.

Should no appeal be taken within sixty days from date of notification, you will so notify this office, when patent will issue to the applicant.

Very respectfully,

WILLIS DRUMMOND, Commissioner.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., December 11, 1873.

SIR: I have examined the appeal of Calvin Jackson et al., from your decision of July 17, 1873, rejecting their adverse claim to the application of the Tiger Silver Mining Company, for patent for one thousand two hundred feet of the Tiger lode, situated in the Tiger district, Yavapai county, Arizona.

I affirm your decision, and here with return the papers transmitted with your letter of the twenty-eighth of October last. Very respectfully,

C. DELANO, Secretary. Hon. W. DRUMMOND, Commissioner General Land Office.

No. 31. There should be an actual survey of the adverse claim; and the adverse claimant should not be allowed to color a portion of the applicant's plat of survey to represent the extent of his claim.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., September 9, 1874. SIR: I have examined the case of R. C. Chambers et al., applicants for patent of the Daniel Webster and Homestead mines, in which you rejected the adverse claim of T. H. Bates et al., by your decision of February 7, 1874.

You rejected it for two reasons: 1. The adverse claimants. failed to make a survey of the same; and, 2. They did not record their claim as required by local law.

The adverse claim as set forth in the protest is described as follows: The said Bates et al. "are the lawful owners, and entitled to the possession of eight hundred feet linear measure of the said mining claim, six hundred feet thereof being on and within the boundary of the said Homestead mining claim, and two hundred feet of the said eight hundred being on and within the boundaries of the said Daniel Webster mining claim, as described in the said applications, as shown by the diagrams posted on the said several claims." In what part of the Homestead and Daniel Webster claims the eight hundred feet are located is not stated, but there is a reference made to an exhibit in these words: "Contestants do present the nature of their adverse claim, and do fully set forth the same in the affidavit hereto attached marked exhibit A, and the further exhibit thereunto attached and made part of the said affidavit."

The affidavit referred to is about as indefinite as the protest. It alleges that Bates is the owner "of an individual interest of three hundred feet of that portion of the said Homestead claim for which the said George Heart and others "have made application for patent from the government of the United States, marked on diagram hereunto attached as exhibit B, indicated in yellow coloring and marked Eureka;" that Davis is the owner "of an undivided interest of three hundred feet of the said Homestead mining claim and the said Daniel Webster mining claim," as indicated above, and that the said Henderson is the owner of an "undivided interest of two hundred feet " of said claims as indicated on said diagram.

What the "undivided interest of the three hundred feet," etc., is, whether one fourth or one fortieth, is not stated. There is no exhibit "B" attached to the protest.

There is a diagram marked "B" found among the papers containing the survey of the Homestead and Daniel Webster lodes, with a portion of said lode colored yellow and marked "Eureka;" but it bears physical evidence that it was never attached to the protest. It is probably the paper intended to be referred to as exhibit B, but strictly is no part of the protest.

Treating it as the exhibit referred to, and it does not show upon its face how much of the eight hundred feet

claimed for the Eureka is taken from the Homestead or Daniel Webster, and yet it is the most definite description of any part of the protestants' claim, and is the very thing relied upon to excuse them from filing a survey and plat as required by the regulations, and is the exhibit which, as they allege, shows the "boundaries" and "extent" of their adverse claim.

Survey of adverse claim.

The rule that a survey must be made of the entire adverse claim is a wise one, for it may appear from such survey that what is asserted to be an adverse claim is not one in fact and law. To allow a protestant to color a portion of the applicant's survey, and treat it as his entire adverse claim, would be a very loose way of doing business, and would operate perniciously in practice, and encourage parties in setting up unfounded claims. I think it should not be encouraged or permitted.

I affirm your decision, and herewith return the papers transmitted with your letter of the thirteenth of June last. Very respectfully,

B. R. COWAN, Acting Secretary.

To the Commissioner of the General Land Office.

No. 32. Where the plat of survey of an adverse claim shows a conflict with the claim of the applicant, it is not within the jurisdiction of the land office to decide that the survey showing the adverse claim is not a correct

one.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, WASHINGTON, D. C., April 15, 1880.

Register and Receiver, Salt Lake, Utah.

GENTLEMEN: On October 2, S. H. Wooster made application for himself and his co-owner, C. H. Stevens, to enter the Phoenix Mining Claim, lot No. 211, located by himself in 1876. The claim was surveyed on August 5, 1879, and approved September 30, 1879. During the period of publication, viz., December 1, 1879, an adverse claim was filed by the Stuart Mining Company on the Constitution lode. On the fifth of December the attorneys for Wooster filed with the Register and Receiver a motion to dismiss said adverse claim. On or before December 9, 1879, suit was commenced by the Constitution claimants. On December

16 the Register overruled the motion to dismiss, and from this decision the applicant for the Phoenix has appealed. The error assigned is in effect that the adverse claim does not correctly show the nature, boundaries, and extent of the ground alleged to be in conflict therein, as is required by sec. 2326, Rev. Stats.

The adverse claim alleges that the Stuart Mining Company is the lawful owner and entitled to the possession of about seven hundred feet in length and two hundred feet in width of the alleged Phoenix lode, as shown by the diagram posted on said claim. Exhibit A. is the affidavit of Clayton Harris, the secretary of the Stuart Company, and recites that said company is a duly organized corporation; that it is the owner by purchase, and is in the possession of the Constitution lode and mining claim; that on the twentyfirst of September, 1869, the premises embraced in the Constitution claim were unoccupied and unclaimed mineral lands, and on the day aforesaid, and while the land was so vacant and unclaimed, Henry B. Bustford, Thomas Sappington, and others entered upon and explored said premises, and located the Constitution lode; that said location was duly recorded, and that by a chain of conveyances the contestant has succeeded to all the rights of the said locators, and that they have held and worked their claim in accordance with the laws of Congress and the district mining laws. Exhibits B. and C. are the location notice and abstract of title, respectively showing title in the Stuart Mining Company; Exhibit D. is the mining laws of West Mountain District; Exhibit E., evidence of the incorporation of the Stuart Mining Company; and Exhibit F., a duly certified plat sworn to by M. F. Burgess, U. S. Deputy Mineral Surveyor, showing the relative positions of the two claims and the conflict between them, also certifying that five hundred dollars has been expended upon the claim. From these exhibits I am unable to see in what respect the adverse claim, or, more properly, the form thereof, can be considered as uncertain or defective.

The protestant has stated the facts by reason of which he claims title, and has shown the conflict claimed to exist by a duly authenticated plat made on the ground. The claimant of the Phoenix bases his motion to dismiss the adverse

claim on the ground that the plat filed by the adverse claimant for the purpose of showing the conflict is platted by other and different metes, directions, and boundaries than are given it in the official and approved survey, as well as in the field-notes and descriptions of said Phoenix claim; that the area claimed by the protestants to be in conflict embraces ground not claimed by the owner of the Phoenix in his application, while other ground that he does claim and apply for is thrown out entirely, and in this protest treated as the absolute and undisputed property of the protestant; and it is by reason of such discrepancy and the consequent failure on the part of the protestants to show the nature, boundaries, and extent of the conflict claimed to exist, that the applicant moves to dismiss the protest. He also avers that the plat put in by protestants was not made on the ground, and that it does not agree with the approved plat of survey of the Phoenix.

Plat shows conflict.

It is admitted that a conflict of surface ground exists, and it is admitted that the adverse claimant has filed a plat showing the existence of a certain conflict. Nothing more is necessary. Such plat is designed to and does show what the adverse claimant claims. He might claim an entirely different tract of ground, which if indicated on his plat would be the adverse claim contemplated by the statute. The plat, in short, is decisive as showing the boundaries and extent of the adverse claim. The question is not what the protestant might, but what he actually does claim, as shown by his plat. The question, then, that the claimant asks this office to pass upon is, "Is the survey showing the conflict a correct one?"

Argument is unnecessary to show that this office has no jurisdiction to determine such a question. The claimant claims under one survey, the adverse claimant under another; to decide, then, which of the two surveys is correct is to decide (to a certain extent) which one of the two parties in interest is entitled to the land; a question the consideration of which is vested in the courts alone. I can see no valid reason for dismissing said adverse claim. Said appeal is therefore dismissed, and your decision affirmed. * *

*

J. A. WILLIAMSON, Commissioner.