development of the mine, the proof shows that the applicants and their grantors did comply with the rules and regulations of said district and the laws of the United States. It is also objected that the notice of location is too indefinite. The application shows that upon making the discovery of the lode the locators planted a stake thereon, to which they attached a notice of their claim, somewhat indefinite, it is true, but when taken in connection with the stake and the monuments mentioned, together with their subsequent improvements, I think was sufficiently definite, and that no one could have been or was misled thereby. It was further objected that the proof of posting the notice and diagram upon the claim during the publication of the order made upon filing the application was not filed in proper time. This question was considered upon the motion for a rehearing in the case, and in my opinion the neglect to file the proof with the application was sufficiently excused by the affidavits then filed. It must be remembered that all of the proof made in an application for a patent of a mining claim is ex parte, and that proof that the applicants have complied with the law is of more importance than the time or order in which it is made. I am of the opinion that the applicants are entitled to a patent of the tract described in their application, unless their right thereto shall be defeated in part by the superior right of their adverse claimant. The adverse claim filed by Mr. Chambers shows that on the 29th day of June, 1870, Swen Johnson et al. discovered the vein or lode known as the City Rock lode or claim; that they marked out the extent and boundaries thereof, erected a location monument, and posted thereon a written notice of their location; that on the 11th day of July, 1870, they filed a notice of their claim with the recorder of said mining district; that said locators immediately commenced to work on said claim, and that the adverse claimant and his grantors have complied with all of the rules and regulations of said mining district. The adverse claimant also files a map or diagram of the respective claims, showing their location and the conflict in their boundaries. Within thirty days after filing said claim, as appears by the certificate of the clerk of the third judicial district of said Territory, Mr. Chambers commenced an action of ejectment against the applicants to recover the possession of that portion of the City Rock claim which is embraced in the application for a patent by the claimants of the King of the West lode. It further appears by the certificates of the clerk of said court, dated October 16, 1876, that a judgment was subsequently rendered therein in favor of said Chambers and against the applicants. On behalf of said adverse claimant it is urged that upon filing the adverse claim and the commencement of said suit under the seventh section of the act of May 10, 1872, the jurisdiction to determine the rights of the parties to the tract in controversy was transferred to said court, and that this Department has no further duty to perform in the matter until a final determination shall be had of that case. Section 7 of the act aforesaid reads as follows: "That where an adverse claim shall be filed during the period of publication, it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse claim; and all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment, and a failure to do so shall be a waiver of his adverse claim. "After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without giving further notice, file a certified copy of the judgment-roll with the register of the land office, together with the certificate of the surveyor-general that the requisite amount of labor has been expended or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claims, together with the proper fees, whereupon the whole proceedings and the judgment-roll shall be certified by the register to the Commissioner of the General Land Office, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear from the decision of the court to rightly posess. If it shall appear from the decision of the court that several parties are entitled to separate and different portions of the claim, each party may pay for his portion of the claim with proper fees, and file the certificate and description by the surveyor general, whereupon the register shall certify the proceedings and judgment roll to the Commissioner of the General Land Office, as in the preceding case, and patents shall issue to the several parties according to their respective rights." * * The plain meaning of this section is that all contests which may arise in the disposal of the mineral lands shall be tried and determined, if tried at all, in a court of competent jurisdiction; that the adjudication and determination of that court shall be final and a patent for the tract in controversy shall issue to the successful party or parties, upon showing further compliance therewith. It is equally clear, I think, that when the court has acquired jurisdiction of the subject-matter in controversy, all other proceedings, except those mentioned, must be stayed until such determination is made, if the suit be prosecuted with reasonable diligence. The only question which can ever arise is whether the adverse claimant has complied with its terms, so as to bring his case within it. He must file his claim during the period of publication, showing its " nature, boundaries, and extent," and bring suit for a recovery of the possession of it within thirty days thereafter, or be deemed to have waived it. Has the adverse claimant in this case shown such a compliance? I think he has. He filed his claim under oath during the period of publication showing the origin of his title thereto as well as its nature, boundaries, and extent, and brought suit within the time prescribed to recover possession of that portion of it claimed by the applicants. To this claim, as filed, the applicants object First. That it differs materially from the original location, which was for one thousand feet of the City Rock lode, "excepting six hundred feet northerly and four hundred feet southerly," while the claim as filed is for a tr. ct of land lying nearly east and west. Second. That the adverse claimant has no title to the tract claimed, or, if he has, he holds it as the secret trustee of the City Rock Company, a foreign corporation, and is therefore not entitled to present a claim. Both of these objections go to the merits of the case and not to the form of the claim. It is unquestionably your duty, as well as mine, when an adverse claim is presented for consideration, to examine it, and determine whether the claimant has substantially set forth, under oath, its "nature, boundaries, and extent;" but if a compliance with the law is shown in these particulars, and a suit has been instituted to determine the rights of the parties, I am of the opinion that we can proceed no further with the investigation. It is the duty of the court in which the suit is pending to determine all other questions relating to the controversy. I therefore direct that the application of W. H. Pitts et al. for a patent of the King of the West lode be suspended until the final adjudication and determination of the rights of the parties involved in the suit now pending in the third judicial district of Utah Territory be made, or it is shown that said snit is not prosecuted with reasonable diligence. I herewith return the papers transmitted with your letter N, of September 21, 1876. Very respectfully, The COMMISSIONER OF THE GENERAL LAND OFFICE. Z. CHANDLER, Secretary. An application for patent is not relieved from suspension by the abandonment of the portion claimed adversely, unless the suit brought upon the adverse claim has been determined. DEPARTMENT OF THE INTERIOR, Washington, D. C., February 17, 1877. SIR: I have considered the application of O. D. Lambard for a patent for the Mount Pleasant mine, Sacramento, Cal. Lambard filed application for a patent January 23, 1875. Notice was published from January 28 to April 1, 1875, inclusive. During the period of pulication, viz, March 26, Edward R. Morey filed an adverse claim, known as the "Charles mine," and commenced suit in the eleventh judicial district April 21, 1875. On the 24th of March, Jacob B. Fisher, John Melton, and F. W. Earl filed an adverse claim, known as the "Irish mine," and commenced suit in the eleventh judicial district April 21, 1875. On the 24th of March, Jacob B. Fisher, John Melton, and F. W. Earl filed an adverse claim, known as the "Earl mine," and on the 21st day of April, 1875, Fisher and Melton commenced suit in the eleventh judicial district, and at the August term of said court a judgment of nousuit was entered in favor of the defendant. This decision was affirmed by the supreme court of California at the following January term, the court holding that "the defendant was the owner of an undivided interest in the mining claim, and as such was entitled to the exclusive possession thereof against the plaintiffs, they not having shown any title in themselves." On the 28th of March, 1876, Fisher, Melton, and Earl commenced an action in the court of the eleventh judicial district to recover possession of said "Earl mine," and they requested that said application shall be suspended until said suit shall have been determined, unless the application for patent shall be rejected. In your decision of September 2, 1876, you hold that this suit, having been commenced after the expiration of the thirty days prescribed in the seventh section of the act of May 10, 1872, cannot operate as a bar to the issuance of a patent. This decision is in accordance with that of my predecessor in the case of H. B. Morse vs. Eli S. Streeter. (Copp's U. S. Mining Decisions, p. 127.) You also state that the application will remain suspended until it shall have been clearly established that the applicant has the possession, and the right of possession, to the premises, by virtue of compliance with the local laws or customs, and the congressional enactments. On the 28th of December, 1876, A. St. C. Denver, esq., attorney, in behalf of the protestants, filed an argument adverse to the claim of Lambard. December 4, 1876, the local officers transmitted additional evidence in the matter of the application of Lambard. In your decision of the 9th ultimo, you overruled the objections to the issuance of a parent, and announced that the case would be taken up at once for patenting. On the 10th ultimo, Mr. Denver, in behalf of the owners of the "Earl mine," the contestants and protestants, appealed from said decision. On the 13th ultimo, you informed Mr. Denver that an appeal by a protestant did not lie from the decision of your office, and on the same day Mr. Denver appealed from said decision claiming, first, that under th provisions of the sixth section of the act of May 10, 1872, an appeal may be taken by tne protestants; secondly, that Fisher et al. did file an adverse claim and commenced suit within the time required; thirdly, that a suit is now pending before the district court, in which the property is situated, and that while said suit is pending they have the right to appear as contestants, as well as protestants, having the right to appeal from your decision, in order that their legal rights may be reviewed by the appellate authority. I think your decision, that the suit now pending in relation to the "Earl mine" was not commenced within the time required, must be sustained; hence the parties can appear in the attitude of protestants only. In my decision of March 24, 1876, in the matter of the application for a patent for the Boston quicksilver mine, on appeal from your decision denying the right of Mr. McGarrahan to appeal to this Department, it was stated that "while it was laudable in Mr. McGarrahan to make suggestions to your office of what he believed was an attempted fraud upon the Government in the matter of this application for patent, and proper for you to accept and consider such suggestions in an examination of the case, I can hardly conceive that it will be seriously contended that he, not being a party in interest, but standing in the relation of amicus curiæ, has a status entitling him to an appeal. I am very clearly of the opinion that he has no such right, and therefore affirm your decision to that effect." Applying that rule to this case, Foster et al. not being parties in interest, in the eye of the law, by reason of their failure to commence suit in time, and appearing as protestants only, bave no right of appeal. It appears, as before stated, that E. R. Morey, claiming the "Charles mine," presented an adverse claim, and commenced suit, upon complaint duly filed, within the prescribed time. This suit was pending at the date of your decision, and, in my opinion, should have operated as a stay of all proceedings before this Department, as indicated in my letters of December 26, 1876, in the case of the King of the West vs. City Rock, and of the 3d ultimo, in the case of the Last Chance No. 2. Since the date of your decision, however, viz, on the 16th of February, there was filed with me a certified copy of the complaint of E. R. Morey in the suit commenced April 21, 1875, in the eleventh judicial district of California, also a duly certified copy of the following confession of judgment: [No. 2785.] In the district court, eleventh judicial district, county of El Dorado, State of California. E. R. MOREY, PLAINTIFF, V8. O. L. LAMBARD, DEFENDANT. Now comes the defendant by his attorneys, G. J. Carpenter and George Cadwalader, and waiving all his other pleas in the above cause, hereby disclaims any right, title, or interest in and to the premises described in the complaint of plaintiff herein, and consents that plaintiff have judgment according to the prayer of his complaint herein. G. J. CARPENTER, I hereby acknowledge service of the above answer and consent to the filing thereof. A. P. CATLIN, (Indorsed:) Filed February 6, 1877. Geo. Burnham, clerk. Papers filed on the 16th instant also show that the same action was taken in the case of J. B. Fisher et. al., claiming the " Irish" mine, who commenced suit April 21, 1875, as appears from the following: [No. 2786.] In the district court of the eleventh judicial district, county of El Dorado, State of California. J. B. FISHER AND JOHN NELTON, PLAINTIFFS, vs. ORVILL D. LAMBARD, DEFENDANT. Now comes the defendant by his attorneys, G. J. Carpenter and George Cadwalader, and waving all his other pleas in the above cause, consents that plaintiffs have and recover judgment against him according to the prayer of their complaint herein. G. J. CARPENTER, I hereby acknowledge service of the above answer, and consent to the filing thereof. A. P. CATLIN and (Indorsed :) Filed February 6, 1877. George Burnham, clerk. It thus appears that Lambard has waived his claim to the premises in dispute and debarred himself from asserting his right to the same in the future. The seventh section of the act of May 10, 1872, requires that when suit has been commenced all proceedings shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. By the action of Lambard, the defendant, taken before the proper tribunal, viz, the court having jurisdiction in the case, the plaintiffs, Morey, Fisher et al., have obtained all they sought to obtain by the commencement of the suits, and the same are virtually ended, and the controversy settled. No reason therefore exists why a patent should not issue for the tract not in controversy. The abandonment of the surface ground, or of the entire premises in controversy, before this Department, and the continued prosecution of the suit, involving the same premises, before a court of competent jurisdiction, is not in my opinion a proceeding justified by a correct interpretation of the mining law, but when the applicant for a patent before this Department who becomes the defendant, in a suit commenced by an adverse claimant, in a court of competent jurisdiction, waives his claim, confesses judgment, and thus acknowledges the superior right of the plaintiff to the tract in dispute, he has done all that can be required of him in thus ending the controversy, and should be no longer deprived of a patent for the premises to which he has shown himself legally entitled. Your decision, holding that Lambard is entitled to a patent, is affirmed for that portion of the premises not covered by the claim known as the "Charles" and the "Irish" mines. The papers transmitted with your letter of the 18th ultimo are herewith returned. Very respectfully, The COMMISSIONER OF THE GENERAL LAND OFFICE. CHAS. T. GORHAM, Acting Secretary. Suit must be commenced within thirty days from filing the adverse claim. DEPARTMENT OF THE INTERIOR, SIR: I have considered the question presented by your letter of February 12th last, in the matter of the application of C. E. Schoellkopf et al., for a patent for the Pride of the West mine, Animas mining district, Colorado, Oscar Roedel et al., adverse claimants. The question for determination is, can the adverse claimants be considered by this Department as parties in interest, and therefore entitled to an appeal? If so, it results from the fact that they have filed notice of an adverse claim and commenced suit within the period of time required by the statute. The adverse claim was filed December 8, 1875. From the certificate of George A. Bute, clerk of the district court for the third judicial district of Colorado, it appears that C. Husted and Wilson and Taylor, attorneys for O. Roedel et al., plaintiffs, commenced suit January 31, 1876, against C. E. Schoellkopf et al., defendants, involving the possession of the premises, or a portion of the premises, in controversy. It will thus be seen from the record that the suit was not commenced within the period required by law, viz, within thirty days after the filing of the adverse claim. There is on file an affidavit of Charles Husted, dated January 8, 1876, stating that on the 29th day of December, 1875, as attorney for Oscar Roedel et al., he mailed, postage paid, and addressed to the clerk of the district court, a declaration and præcipe in ejectment, that Schoellkopf et al. were defendants, and that the premises involved were those now in dispute. On the 10th of August, 1876, Oscar Roedel, one of the adverse claimants, and one of the plaintiffs, filed an affidavit asserting that Charles Husted, his attorney, employed for the purpose of filing the adverse claim and commencing suit, corruptly conspired with Schoellkopf, the applicant, to delay the commencement of the suit beyond the period of thirty days after filing the adverse claim. The allegations of Roedei are denied by the affidavit of Schoellkopf. I shall not attempt to reconcile these conflicting statements. It is apparent that the suit was not actually commenced within the period required, for, by the laws of Colorado, it is provided that "the action of ejectment shall hereafter be commenced by the filing of a declaration in the office of the district court of the proper county, whereupon a summons shall issue directed to the sheriff for services as in other cases." The mailing of a declaration addressed to the clerk of the court, cannot be considered the filing of the same in the office of the district court, and the commencement of a suit. The provisions of the statute requiring the suit to be commenced within a certain time are mandatory. The time in which such action is to be taken is limited, and it is not within the province of this Department to extend the time fixed; no discretion or power to thus act is vested by this statute in the Department. Congress, no doubt, for wise purposes, thus restricted the authority of the executive officers of the Government, and opened wide the door of the courts to the adverse claimant. It is his duty to commence his action in the proper form, and if he elects, in so important a matter as the filing of his declaration, to trust to the uncertain medium of the United States mail, he must abide the consequences of delay, should delay ensue through misfortune or accident; or should the failure to commence suit in time be the result of the unadvised or the corrupt or dishonest action of his attorney, it is a matter that the Department is powerless to redress; he must seek for relief in the proper tribunal-the courts are open, and in them he may assert his rights. (See case of Morse vs. Streeter, Copp's U. S. Mining Decisions, p. 127, and the case of O. D. Lambard, Copp's Land-Owner for March, 1877.) Should a charge against an attorney, so grave as the one presented in this case, be clearly established, the Department, to protect its own honor and the interests of citizens, would debar the offender from practice before the executive offices of the Government, but it cannot restore the right of a client thus corruptly sacrificed. In this case, Roedel et al. can be considered only in the light of protestants, hence an appeal from your decision on the merits of the application cannot be entertained. (See cases above cited.) The papers transmitted with your letter are herewith returned. Very respectfully, The COMMISSIONER OF THE GENERAL LAND OFFICE. C. SCHURZ, Secretary. Suit commenced by an adverse claimant must be prosecuted with reasonable diligence. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, GENTLEMEN: On the 10th February, 1873, Leonard G. Calkins, Elisha A. Kirk, and |