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CHAPTER VI.

PROTEST.

No. 1. Separate and distinct protests to be filed against each application for

No. 2.

No. 3.

No. 4.

No. 5.

No. 6.

No. 7.

No. 8.

No. 9.

patent.

Protest not recognized when only surface conflict is alleged.

a. When suit is not commenced within the statutory period the adverse claim is treated as a protest only.

b. Protestant not entitled to the right of appeal.

Location made by "Miners Relief and Territorial Poor Fund," void ab initio.

a. Adverse claim not properly sworn to, treated as a protest only. b. Must be ten insertions in a weekly newspaper.

A commissioner of deeds for Nevada residing in California not an
officer before whom an adverse claimant for a mine in Nevada may
make oath of his claim.

McGarrahan v. Cerro Bonito Quicksilver Mine.
Protestant not entitled to right of appeal.

Bill in equity to restrain defendants from applying for patent.

A protest is a challenge of the applicant's own showing, and through it no trial of unascertained rights is authorized. See No. 6. Ad

verse.

In absence of protest the substitution of valid for defective affidavits
allowed. See No. 12. Application for patent.

Adjoining claimants have no right to protest against survey. See
No. 5. Survey.

No. 1. Parties who desire to have their protests considered must file separate and distinct charges against each application for patent.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, D. C., June 9, 1873.

Register and Receiver, Salt Lake City, Utah.

GENTLEMEN: This office has examined the papers in case of the application of Norris W. Mundy and Joseph R. Walker, for patent for the Mountain Tiger lode; the application of J. R. Walker, for patent for the Zella lode; the application for patent for the Rockwell lode, made by J. R. Walker.

Two of said applications for patents were filed in your office on the fifth of March, 1873, to wit, for the Mountain Tiger lode, and the Rockwell lode.

The application for patent for the Zella lode was filed in your office on the eleventh of March, 1873. The applicants

for patent have shown a strict compliance with the law and instructions in each case.

On the third of May, 1873, a protest was filed in your office against said applications for patents, which protest is sworn to by Thomas Davis, as attorney for William W. Daly, Charles Gippert, H. S. Haines, and Edward Bell; attached to said protest is a diagram made by Thomas Davis, who, it appears, is not only attorney for said protestants, but also deputy mineral surveyor. This protest is informal, and insufficient to warrant this office in suspending proceedings upon said applications, and for the following rea

sons:

Separate protests against each application for patent.

It is contrary to the spirit and letter of the law and the practice of this office to permit one person, or association of persons, to file one protest against several applications for patents for separate and distinct lodes. In the cases under consideration, there were three separate and distinct applications for patents for three separate and distinct lodes. Each application is an entirety, and rests upon its own merits.

As each application for patent under the mining act is for a separate and distinct portion of mineral land, parties who desire their adverse claims considered must file a separate and distinct adverse claim against each application separately.

Adverse claimants who desire to have their adverse claims considered, must strictly comply with the law and instructions, and file with the local land officers, within the time prescribed by law and in proper form, a separate and distinct adverse claim against each application which it is alleged conflicts with the premises owned by such adverse claimants.

Where applicants for patents strictly comply with the law and instructions, the adverse claimants will also be required to strictly conform to the instructions of this office and the laws of Congress.

In the cases under consideration, it is not clear how the protestants could in any way be injured, or their rights prejudiced, by the issuance of patents as applied for; as the New Era location is of much later date than that of either

the Zella, Rockwell, or Mountain Tiger mines, the mining act of May 10, 1872, sec. 14, providing what the respective rights of the parties shall be where "two or more veins intersect or cross each other." * * * *

Very respectfully,

W. W. CURTIS, Acting Commissioner.

No. 2. The Land Department will not entertain a protest where only surface conflict is alleged.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, January 7, 1870. Register and Receiver, U. S. Land Office, Sacramento, Cal. GENTLEMEN: A number of communications have been received at this office from Williams & Co., objecting to a patent being issued to the Pittsburg Company on the Mt. Joy Lode, on the ground of an alleged conflict between the claims of these companies.

In their protest filed with the Surveyor-general on the twentieth March last, Williams & Co. object: 1. Because the Pittsburg Company's survey does not correctly designate the course of the lode, the former alleging its bearing to be N. 71° E. or thereabouts. 2. That the final survey of the Pittsburg Company differs from the preliminary one, and from their notice of application for patent, in this: that in the final survey the last course is N. 251° W., instead of N. 19° W., as in the preliminary and notice.

They contend that the lode should be cut at right angles with its general course, and that a line bearing N. 19° W. will thus cut it. They were informed that the line is in fact the same in both surveys, the only discrepancy consisting in an erroneous bearing having been given to it in the preliminary proceedings, and they now appear to have abandoned the objection as originally made, and insist that the real conflict is not on the surface, but "under ground." In their last communication to their attorney in this city they even appear to adopt the bearing of N. 251 W. as designating the true boundary between themselves and that company, but complain that the Pittsburg Company, in working down in their vein, do not observe this line; that they treat it as having relation merely to their surfaceground, and that they have, as a matter of fact, followed the ledge "under ground" far beyond this line.

The ledge or vein, it seems, dips at an angle of 40° or 45°, and as the boundary line between the companies on the surface does not cut the ledge at right angles with its course, but makes a smaller angle on the side of the Pittsburg Company's claim, that company, in descending into the lode, will necessarily get beyond the line, unless they continually vary from what would be a perpendicular if the vein occupied a vertical position, and this it appears is what Williams & Co. contend the Pittsburg Company is obliged to do.

It should be remembered, however, that no patent has yet been issued to this company, and if they are now following the ledge in its downward progress far beyond the line bounding their surface ground, it is not by virtue of any grant emanating from this office, but under the authority conferred by the local mining regulations; and if their rights in that respect are such that Williams & Co. can not restrain them now, when they are without patent, it is not easy to perceive what injury they will receive from the issuing of the patent, as that document will not confer any greater rights as to the manner of working the mine than are already possessed under the local rules and customs of miners.

No controversy exists in respect to the number of feet claimed on the lode, one company claiming 2,000 feet and the other 1,000, and both agree as to the partition post dividing one claim from the other. Nor is there any real conflict as to the surface ground, both claimants adopting the same identical line as a boundary between them in the diagrams filed with their respective applications for patents, one designating its bearing as N. 19° W.; the other as N. 251 W., but both marking its termini by the same identical posts.

It is in fact, as Williams & Co. represent it, an "underground" conflict, and one that can not be corrected by a modification of the lines on the surface. Evidently such a conflict can not be adjudicated in court under the sixth section of the mining act, for the controversy there contemplated is one in which the judicial decision would control the General Land Office in its subsequent action on the application for patent, and would lead to a modification

of the grant one way or the other, so as to conform it to the decision of the court. But no such result could follow from the action of the court upon the question raised by Williams & Co., because whatever might be determined there, the patent issued from this office would still grant "the right to follow the vein or lode with its dips, angles, and variations, to any depth, although it may enter the land adjoining," the mining act authorizing the grant to be made in this form, and no decision of a legal tribunal can nullify this statutory requirement. Most assuredly a decision producing no change in the description of the premises or the parties, can in no way control the grant contained in a patent, for all its other formal parts are statutory and beyond the power of the courts.

An applicant for a patent under the mining act may include surface groud lying on either or both sides of the vein, as part of his claim, or he may apply for a patent for the vein alone. His rights upon the vein and in working into it are precisely the same, whatever may be the form of his surface ground, or whether he has any or none. His end lines and the distance between them will be the same at all depths as upon the surface, no matter whether the position of the vein is vertical, or whether it dips at a less or greater angle. This results directly from the right granted to the miner by all the local mining customs, as well as by the national mining act, of following the vein with all its dips, angles, and variations; and the Pittsburg Company and Williams & Co. alike possess this privilege by the mining regulations of Nevada county, California.

The Congressional enactment adopts in this respect the provisions of the mining customs, subordinating the rights of a patentee in respect to the surface ground, to the more important rights in respect to the vein, granting the right to follow the latter with all its dips, angles, and variations, to any depth, although it may enter the land adjoining, and requiring the adjoining land to be sold subject to this condition.

If the vein occupied by these companies descended vertically into the earth, no controversy would arise between them, it is presumed, in respect to the descending boundary between their claims. The line would be a per

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