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fifteenth ultimo, asking within what period an adverse claim may be filed against an application for mineral patent which is published in a weekly newspaper.
By decision of the Hon. Secretary of the Interior, ten (10) insertions in a weekly newspaper are essential to comply with the law requiring sixty days publication. In such publication, the tenth, or last, issue falls upon the sixtythird day after the first, which is excluded. The statute contemplates that adverse claims may be presented during the legal period of publication. If the legal period does not extend to and embrace the last day upon which the publication (which is held to be necessary) is made, then the insertion of said notice in the tenth consecutive issue of such weekly is not only rendered unnecessary, but would appear to be an absurd requirement. Adverse claim filed.
The last, or tenth, insertion being essential, it follows that adverse claims may be filed until the expiration of the day upon which the last issue of such weekly publication is made. Very respectfully,
J. M. ARMSTRONG, Acting Commissioner.
No. 45. DOLLY VARDEN MINE. 1. District land officers are not expected or required to transact business out of office hours or on Sunday.
2. There is no law of the United States, or of the State of Nevada, prohibiting them from so doing.
3. An adverse claim presented to the receiver and received by him on Sunday, the last day of publication, was filed within the legal period, and entities the adverse claimant to a stay of proceedings.
DEPARTMENT OF THE INTERIOR,
WASHINGTON, D. C., July 17, 1879. SIR: I have considered the appeal of George A. Sayer and Samuel Goldstone, from your decision of March 30, 1878, rejecting the adverse claim of the appellants to the application of the Hoosac Consolidated Gold and Silver Mining Company for a patent for one thousand five hundred linear feet of the Dolly Varden Mine, Secret Canyon mining district, Eureka, Nev., for the reason that said adverse claim was not filed within the time required by law.
You held that “officers are not expected nor required to transact official business after office hours, nor to leave their offices open for the transaction of business on Sun
day;" and as “this adverse claim can only be considered as filed on Monday, the seventeenth of September, 1877, it must be rejected."
From the statement of facts presented in this case, it appears that the sixtieth day of publication of notice of the application fell on Sunday, September 16, 1877; that about 10 P.M. of the previous day, Mr. Sayer presented his adverse claim and tendered fees for the filing of the same to the register of the land office, who refused to receive said adverse claim or the fees for filing the same; that on the following day Mr. Sayer presented the adverse claim to the receiver of said land office, who accepted it, filed it, and received the fees for the same.
While it is true that officers are not expected nor required to transact business out of office hours, or on Sunday, still there is no law of the United States prohibiting them from doing such business, nor am I able to find any law of the State of Nevada which prohibits the transaction of ordinary business on the Sabbath day.
Both of said officers might properly have refused to receive such application either out of office hours or on the Sabbath day, but the receiver did receive the adverse claim, and filed the same, and by so doing, if suit was commenced within the time prescribed by law, I am of the opinion that the rights of the appellants were protected.
Your decision is therefore reversed, and the papers transmitted with your letter of May 8, 1879, are herewith returned.
C. SCHURZ. The Commissioner of the General Land Office.
No. 46. 1. A town site is an adverse claim.
2. The party who sets up the adverse claim should commence the suit, except in cases where the adverse claimant is in possession of the premises.
DEPARTMENT OF JUSTICE,
WASHINGTON, D. C., August 7, 1871. SIR: I have considered the case of Theodore H. Becker v. Citizens of Central City, Colorado.
Becker claims under the act of July 26, 1866 (14 Stat. 251), three thousand linear feet of the mineral deposit
near Central City, Colorado, known as the Gunnel Extension or White lode.
He alleges that he has fully complied with all the provisions of the act and the rules of the General Land Office under it. His claim, however, is opposed by certain citizens of Central City, Colorado, who before the expiration of the ninety days provided in the third section, filed with the Commissioner of the General Land Office a remonstrance protesting against the issuing of the patent, representing that said Gunnell Extension or White lode, as claimed by Becker, extended to a considerable distance under town lots and improvements owned and occupied by them in said city.
The Commissioner, in a letter to the Register and Receiver, May 6, 1870, said: “Although such protests do not, in the opinion of the Commissioner, constitute such an adverse claim as would properly come within the purview of the sixth section of the mining act, yet in view of the magnitude of the interests represented to be involved, it is deemed but fair to have the rights of all the parties determined by the local tribunals, and you will accordingly notify all parties claiming adversely to said application of Becker that, they will be allowed sixty (60) days from the date of your notification, in which to institute proceedings in court to adjudicate their respective rights in the premises.”
This apparently plain decision was, it seems, misunderstood by the petitioners, who were in doubt whether the duty of commencing proceedings in the courts devolved under it upon them or the claimant. December 12, 1870,
, the Commissioner further instructed the Register and Receiver that it was the duty of the town lot claimants to commence such proceedings. From the decision of the Commissioner the town claimants have appealed.
The case presents two questions for consideration:
1. Is the claim of the petitioners an adverse claim, within the meaning of the sixth section ?
2. Who must commence the proceedings in the local courts?
First. The second section provides that any person or association claiming a vein or lode of quartz or other ore rock in place bearing gold, etc., and who has previously occupied and improved the same in accordance with the local customs of miners, and expended thereon not less than one thousand dollars in labor and improvements, "and in regard to whose possession there is no controversy or opposing claim,” may “file a diagram of the same, so extended laterally or otherwise as to conform to local laws,” and "enter such tract and receive a patent therefor granting such mine," etc.
The privilege is here given of entering certain premises or “tract," as it is called, provided all the conditions stated have been complied with, and it is a "tract,” in “regard to whose possession there is no controversy or opposing claim."
Possession is one of the elements of title, and is made by this statute a necessary subject of inquiry. If found to be in any one other than the claimant, it is a bar to the issuing of a patent, at least until adjudged wrongful in the manner pointed out in the sixth section.
There can be no question about this, if the possession relates to the vein or lode, the mine itself; but it is said that it is otherwise if it relates to the surface of the land.
In the present case, the application for a patent includes the surface and soil as well as the mineral. I am of opinion that the persons in possession of this surface are adverse claimants, and have an adverse claim within the meaning of this law, and are entitled to be heard in the local courts, before a patent is issued.*
Second. Who should commence the proceedings ?
The sixth section reads as follows: “That whenever any adverse claimants to any mine located and claimed as afore
* The acts giving the right to mine upon land appropriated for grazing and agricultural purposes, do not apply to the case of a town lot occupied for hotel purposes. Lands settled in good faith, and built up as mining towns, must be protected as incidental to the business of mining. Fitzgerald v. Urton, 5 Cal. 308.
The occupant of mineral land may rely upon his possession against a mere trespasser, unless he uses the land for grazing or agricultural purposes. Id.
In permitting persons to go upon public lands occupied by others for the purpose of mining, the Legislature has legalized what would otherwise have been a trespass, and the act can not be extended by implication, to a class of cases not specially provided for. Id.
said, 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 courts of competent jurisdiction of the rights of possession to such claim, when a patent may issue as in other
Who shall commence suit.
As a general rule the suit should be commenced by the party who sets up the adverse claim. I think this rule should apply to all cases, except those in which the adverse claimant is in the evident and open possession of the premises, tract, lode, or vein, or a portion of the same. When thus in possession, an adverse claimant who attacks his right to possession should certainly be required to take the initiative. To hold otherwise would be against all the analogies of the law.
In the case now under consideration, the adverse claimants are in the evident and open possession of the surface of the ground or a portion thereof, and under the rule as above stated should be made defendants to the proceedings which Becker should be required to bring against them.
I advise a reversal of the decision of the Commissioner, and that sixty days be given to Becker after the receipt of notice within which to commence proceedings against the parties in possession.
W. H. SMITH, Assistant Attorney-General. Hon. C. DELANO, Secretary of the Interior.
Concurred in August 9, 1871, by B. R. Cowen, Acting Secretary.
No. 47. In case of judgment against applicant for a portion of his claim, he may proceed to secure title to remainder on showing the requisite amount of expenditure in labor and improvements thereon, if in other respects according to law.
DEPARTMENT OF THE INTERIOR,
GENERAL. LAND OFFICE,
WASHINGTON, D. C., February 27, 1872. Register and Receiver, Central City, Colorado Territory. GENTLEMEN:
* This office holds, therefore, that