Zadock Kalbaugh filed in your office an application for patent for 1,400 linear feet of the Arctic lode, Griffith mining district, Clear Creek County, Colorado. The notice was published in the Colorado Miner on the 13th February, 1873, and thereafter for the full period of sixty days. It is shown by an abstract of title from the office of the county clerk and county recorder of Clear Creek County, Colorado, that the Arctic lode was located by Zadock Kalbaugh and four others, and that record was made of such location on the 1st October, 1869. It is also shown that said applicants have the record title to the whole of said location, viz, 1,400 feet. It appears that an error was made in the survey of this claim in giving the course and distance between the corner to sections 4 and 5 on north boundary of township 4 south, range 74 west, and corner No. 1 of this claim. With the exception of this bearing from corner No. 1, the survey was accurately made; but as several other bearings were given to established and fixed points, the claim and premises were sufficiently marked and determined. On the 11th April, 1873, and before the expiration of the sixty days' notice by publication, George T. Clark, G. W. Kassler, E. A. Merriam, D. C. Wilson, E. A. Barnhart, E. S. Streeter, F. G. Saint, and F. W. Cram filed an adverse claim against said application for patent. The adverse claim was sworn to by E. S. Streeter before Charles R. Fish, a notary public in and for Clear Creek County, and by George T. Clark, Frank W. Cram, and George W. Kas-ler before J. B. Cass, a notary public in and for Arapahoe County, Colorado. In their adverse claim they allege that the premises as applied for conflict with and embrace a portion of the F. W. Cram lode. They also filed a diagram representing the conflict between the two claims. On the 5th of May, 1873, said adverse claimants commenced proceedings against said applicants in the district court of the second judicial district of Colorado. It appears by a certificate of the clerk of said court, dated the 27th June, 1876, that "since the commencement of said suit there has been held in said county the following terms of court, viz: special term, July, 1873; regular term, September, 1873; Jane, 1874; December, 1874; June, 1875; December, 1875; June, 1876; that I do further certify that no trial on the issues in said cause has ever been had in said cause, and that the only orders appearing of record in said cause are orders of continuance, and that said cause is now pending in said court." The seventh section of the mining act of May 10, 1872, declares that "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." It will be observed that the law not only requires an adverse claimant to commence proceedings in a court of competent jurisdiction, but also t› prosecute the same with reasonable diligence to final judgment. A failure on the part of an adverse claimant to comply with either of these requirements is held to be a waiver of his adverse claim. In the case under consideration, more than three years have elapsed since said suit was commenced; that one special term and six regular terms of said court have been held, and that no trial of said cause has yet been had, the only orders entered being those of continuince. In view of these facts, you will call upon said applicants to furnish a certificate of the clerk of said court, showing at whose instance the several conti nuances were made in said cause. Should it appear from such certificate that the several continuances were granted at the instance and request of said adverse claimants, you will allow said applicants to make entry of their claims, should no appeal be taken from this decision within sixty days from the date of your notification to all parties in interest. Be pleased to acknowledge the receipt hereof. Very respectfully, your obedient servant, REGISTER and RECEIVER, Central City, Colo. J. A. WILLIAMSON, Commissioner. Publication of notice must be made in the paper published nearest the mine. DEPARTMENT OF THE INTERIOR, SIR: I have considered the appeal of J. H. Foley et al. from your decision of May 12, 1876, adverse to their claim in the matter of the application for a patent for the Omaha Quartz Mine, Sacramento, Cal. The protestants state that the point upon which they rely in the appeal "is as to the sufficiency of the publication" or the failure to comply with the law in the matter of publication of notice. The notice was published in the Nevada Transcript, a paper published in Nevada City, a town situated about six miles from the mine, and the publication was made by direction of the register. It appears that in Grass Valley, a town situated about two miles from the mine, two papers are published, a daily and a weekly. It is contended that the notice should have appeared in a paper published nearest the claim. You held that the publication was sufficient. The sixth section of the act of May 10, 1872, provides that the register of the land office "shall publish a notice that such application has been made, for a period of sixty days, in a newspaper to be by him designated as published nearest to said claim." It would seem that the intention of Congress was plain that the notice should appear in a paper published at a point indicated, and the register is authorized to designate said paper, following the plain instructions of the statute, which would seem to point out his duty. In this case, however, he has exercised his discretion, disregarded the papers published at Grass Valley and selected another. I see no warrant for the exercise of this discretion. Under the provisions of the statute the public have a right to look to the paper issued nearest the claim as the one in which a notice of application for a patent should appear. If any discretion is allowed a register, where shall it be limited? If he may ignore a paper published two miles from a claim, and designate one published six miles distant, he may designate one published at a much greater distance. This question would not have arisen, had the register performed what I think was clearly his duty, and the instructions of your office should be made so explicit as to allow no opportunity for the question to arise in the future. If two or more papers of repute are published equidistant, or very nearly so, from the claim, the register must designate the one in which the notice shall appear; but in other cases the paper published nearest the claim must be designated, provided the same is a reputable newspaper of general circulation. In the case under consideration it does not appear that the applicants are in any manner at fault, and to reject their application, when they have, in good faith, complied with the law and the instructions given them by the local officers, would be a hardship. I cannot, however, recognize the action taken as a strict compliance with the law, and the case is returned to be submitted to the board of confirmation for its action, as your action rejecting the adverse claim of Foley et al. is approved for the reasons given. Your decision is modified accordingly, and the papers transmitted with your letter of August 31, 1876, are herewith returned. Very respectfully, To the COMMISSIONER OF THE GENERAL LAND OFFICE. Z. CHANDLER, Secretary. Adverse claims may be sworn to before any person authorized to administer oaths within the land district where the claim is situated. DEPARTMENT OF THE INTERIOR, Washington, D. C., February 17, 1877. SIR: I have considered the case of the Corning Tunnel, Mining, and Reduction Company vs. Wm. G. Pell, Samuel Cochran, and John W. Nicholson, applicants for patent for 1,500 linear feet of the Slide Lode, Gold Hill mining district, Boulder County, Central City, Colorado land district, on appeal from your decision of November 3, 1876, adverse to the Corning Company. The facts of this case are as follows, to wit: On November 24, 1875, W. G. Pell, Samuel Cochran, and John W. Nicholson filed an application in the local land office for a patent for 1,500 linear feet of the Slide Lode, Gold Hill mining district. Sixty days' notice, by publication in the Weekly Sunshine Courier, from December 4, 1875, to and including February 12, 1876, was also made, and the plat and notice were properly posted on the claim and in the register's office. A duly certified abstract of title from the records of Boulder County shows that said lode was discovered July 26, located July 30, and recorded July 31, 1875. Applicants also show a compliance with the law, and have record title of said location. The Corning Tunuel, Mining, and Reduction Company, by F. A. Squires, president, filed an adverse claim against said application January 20, 1876, and commenced suit by ejectment to determine the right of possession of the tract in question in the district court of Boulder County on February 7, 1876. Mr. Squires alleges that the Slide Lode is within the location of the tunnel site of the company which he represents; that said Slide Lode was discovered after the tunnel site, and is a blind lode; that said tunnel site was located in conformity with the mining act of May 10, 1872; that said company have expended a large amount of money; and that their rights are prior and superior to those of the applicants. A copy of the location notice shows that George C. Corning, A. J. Mackey, James A. Carr, and Daniel A. Robinson located and recorded said tunnel site September 18, 1872. They made a second location of the same July 9, 1873, wherein the tunnel is described as seven feet high, six feet wide, and one hundred and thirty feet in length. Said company have record title to said tunnel site and location. One of your reasons for rejecting the adverse claim is that said claim was not sworn to within the land district where the mining claims are located. The facts relative to this matter are that the adverse claim was sworn to before A. J. Mackey, deputy clerk of the district court in and for Boulder County, and although there is no testimony showing the exact part of the county where the oath was administered, it is shown that the office and residence of said clerk were in the town of Boulder, in said county, and it is probable that the affidavit was made at that place. Now, the line between the Central City land district and the Denver land district runs through Boulder County, leaving the locus of the town of Boulder in the Denver district, and the mining claims in the Central City district. Section 2335 of the Revised Statutes of the United States provides that "all affidavits required to be made under this chapter may be verified before any officer authorized to administer oaths within the land district where the claims may be situated." I am of the opinion that under this statute an officer authorized to administer oaths within the land district may administer the same without the district, but within the jurisdiction. I do not think the cases referred to in your decision are in point, for the reason that there is a manifest difference between the acts of the Commissioner, who has authority only to administer oaths in California for Nevada, (as in The Dardanelles Mining Company vs. The California Mining Company case, Copp's Mining Decisions, p. 161,) and the acts of an officer in the State, exercised within his jurisdiction, where that jurisdiction extends within the land district where the claims are located. Where suit is brought by the adverse claimant, under the seventh section of the act of May 10, 1872, within the time required by law, it is only necessary to pass upon the regularity of the adverse claim, leaving the rights of the parties to be determined by the court. Your decision is reversed, and the case remanded to your office, to await the judg ment and decree of the court before which suit is pending. The papers transmitted with your letter of February 12, 1877, are herewith returned. Very respectfully, To the COMMISSIONER OF THE GENERAL LAND OFFICE. Protestants have no right of appeal. Z. CHANDLER, Secretary. DEPARTMENT OF THE INTERIOR, Washington, D. C., March 24, 1876. SIR: I have had under consideration the case of the Boston Quicksilver Mine, mineral entry No. 23, San Francisco, Cal., wherein Mr. William McGarrahan has filed an appeal from your decision of August 21, 1875, denying his right of appeal from your decision of August 14, 1875, holding that the owners of said mine had shown such compliance with law as entitled them to a patent. 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 curia, 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. With a view of preventing the delay arising from appeals improperly taken, I recommend that in future, whenever an appeal shall be taken which, in your opinion, is unauthorized by law and the practice of this Department, you at once report the same to this office for decision. The papers of the case transmitted with your letter of September 1, 1875, are herewith returned. Very respectfully, To the COMMISSIONER OF THE GENERAL LAND OFFICE. Z. CHANDLER, Secretary. DEPARTMENT OF THE INTERIOR, SIR: I have considered the appeal of Messrs. A G. Riddle and J. E. Padgett, attorneys for the Sprucemont Mining Company of California, from your decision of May 21, 1877, denying to said company the right of appeal from your decision of March 10, 1877, on the ground that said company was a protestant simply against the application of John F. Lewis for a patent of the Juniper mining claim, situate in the county of Elko, in the State of Nevada, and, as a protestant, neither the company nor its attor neys had the right to an appeal from your decision, according to the former decision of this Department. The ground upon which you held that said company was a protestant simply was its failure to file an adverse claim within the time prescribed by section 2325, Revised Statutes, viz, within sixty days after the first publication of the notice by the register and receiver of Mr. Lewis's application for a patent of the tract claimed by him. The testimony filed in the case shows that the notice was published in accordance with law for the full period of sixty days; and that the adverse claim and protest was not filed so as to be considered of record in the case until after the expiration of that time. Your decision is, therefore, in accordance with the well-settled rulings of this Department, as was also your refusal to entertain an appeal therefrom. The appeal of Messrs. Riddle and Padgett is, therefore, dismissed, and the papers transmitted with your letter N, of May 29, are herewith returned. Very respectfully, To the COMMISSIONER OF THE GENERAL LAND OFFICE. C. SCHURZ, Secretary. Patents may issue for town sites upon mineral land and for mining claims within town sites. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Washington, D. C., November 23, 1876. GENTLEMEN: On the 27th ultimo you were informed that a resurvey would be required of the town site of Butte, Montana, excluding from such resurvey all placer claims and mining ground. The rule was laid down by my predecessor that placer-mining ground could not be included in a town-site patent, and this rule was followed in my instructions of the 27th ultimo. From a careful re-examination and consideration of the law regulating the disposal of town sites upon the public domain, I have become convinced that the rule as laid down by my predecessor was erroneous. The law clearly contemplates that towns will exist in mining 1 calities, and that entries may be made of such town sites. Section 2386 Revised Statutes, however, provides that "where mineral veins are possessed, which possession is recognized by local authority, and to the extent so possessed and recognized, the title to town lots to be acquired shall be subject to such recognized possession and the necessary use thereof." Section 2392 of the Revised Statutes provides that "no title shall be acquired under the foregoing provisions of this chapter to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession held under existing laws." As the Government in issuing patents for town sites conveys the premises within the exterior boundaries of the town-site entry only in accordance with the provisions of law, the title to all mines of gold, silver, cinnabar, or copper, and to all valid mining claims or possessions, held under existing laws, which are situated within such exterior boundaries, still remains in the United States after patent has issued for such town site. Title to these mining claims or possessions can only be acquired under the provisions of law regulating the disposal of mineral lands by parties who show compliance with the terms of the mining acts. Patents issued for town sites in mining regions contain a clause in accordance with the terms of the law providing "that no title shall be acquired under this patent to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession held under existing laws; and provided further, that the grant hereby made is held and declared to be subject to all the conditions, limitations, and restrictions contained in section two thousand three hundred and eighty-six of the Revised Statutes of the United States, so far as the same are applicable thereto." Under the provisions of law referred to, the patents for town sites containing such clause are held subject to any valid mining claim or possession, and a purchase of a lot from the town-site authorities holds the same subject to the same conditions. In view of the law in the case, I recall my instructions of the 27th ultimo, and now decide that patent may issue for said town site, upon compliance with law, for the entire premises embraced by the survey already reported, which patent will contain the proviso herein before referred to. Should mine owners within such town-site entry desire to make applications for patents for their claims, they will be permitted to do so upon full compliance with law. Be pleased to inform all parties in interest, and acknowledge the receipt hereof. Very respectfully, your obedient servant, REGISTER and RECEIVER, J. A. WILLIAMSON, Commissioner. Helena, Mont. School sections pass to the State of California upon survey thereof, if their mineral character is unknown at that date. DEPARTMENT OF THE INTERIOR, SIR: I have considered the case of the State of California vs. L. J. Poley and Henry Thomas, involving the right to the northeast quarter of southeast quarter of section 36, township 3 south, range 13 east, M. D. M., Stockton, Cal., on appeal from your decision of June 26, 1875. The State claims under the school grant. Poley and Thomas apply for a patent under the mining act. The township was surveyed in December, 1-54, and the patent was filed in the local land office March 14, 1855. The placer-mining claims appear to have been located in the year 1858. It will thus be seen that the question presented is, whether the State of California has a legal title to the land in sections 16 and 36, where it is ascertained, after the survey and identification of said sections, that the land therein is mineral. By the sixth section of the act of March 3, 1853, the sections above designated were granted to the State of California for school purposes, and when the lands were surveyed the title of the State attached to the same, and, if there was no legal impediment, became a legal title. (18 Howard, 173.) After a very elaborate discussion, my predecessor, Mr. Secretary Delano, held that Congress, by the act of 1853, did not intend to grant and did not grant to the State any mineral lands which by survey are shown to be in sections 16 and 36. (Copp's Mining Decisions, p. 109.) Accepting this conclusion as the correct one, the question still remains, did the title to lands in said sections vest in the State, upon survey, if their mineral character was unknown at that time, and the same were regarded by the officers of the Government as ordinary public lands, not reserved or otherwise appropriated, but subject to disposal und r the general laws of the United States? It must be held that it did so vest, unless there was an express prohibition existing by virtue of some law. It would seem that it was the intention of the framers of the act not to grant any of the mineral lands to the State. Mr. Hall said in the House of Representatives, on the day of its passage, "There are some donations made to the State of California, but they are precisely the same as those made to the other States of the Union; but in the clauses making the donations it is provided that the mineral lands and the lands reserved for other public uses shall be excepted. Mineral lands are reserved in all cases." (Congressional Globe, vol. 26, p. 1038.) In support of this theory, the twelfth section of the act may be cited. By its provisions 72 sections of land were granted to the State for the use of a seminary of learning, and mineral lands were excepted; but it will be observed that the lands were to be selected by legal subdivisions; and, by an express provision in section 3 of the act, none but township lines were to be surveyed when the lands were mineral; hence the prohibition was well defined and easily followed. The same remarks will apply to the grant made by section 13 of the act, for the purpose of erecting the public buildings of the State. By the sixth section of the act under consideration, all the public lands in the State of California were declared subject to the pre-emption laws, except "sections 16 and 36, which shall be, and hereby are, granted to the State for the purpose of public schools in each township." There appear to be no words of limitation or restriction in the clause making the grant. The words are absolute and unqualified; the sections are excepted from the operation of the pre-emption law, together with lands otherwise appropriated or reserved by competent authority, or claimed under a foreign grant, and mineral lands; but I know of no rule of construction of language that would justify an interpretation of the words used in the granting clause that would in effect be a limitation of said grant. This view does not, I think, conflict with that expressed by Secretary Delano; for by section 3 above cited, lands known to be mineral could not legally be surveyed or designated as school lands. In compliance with the doctrine established by the courts, it must, I think, be held that the title vested in the State at the date of survey, when the land was not known to be mineral, or was not treated as such by the Government. If, following the doctrine of the courts, the grant of school lands takes effect at the date of survey, can the character of the laud, subsequently determined, change or affect said title? If it can, for how long a period can such change be effected? If for three years, why not for ten or fifty, or after the title derived from the State has been transmitted through numerous grantees? For lands confessedly no-mineral at the date of survey, may, many years thereafter, be ascertained, through the improvements in mining operations, to be valuable as mineral lands. To maintain such a doctrine, might result in placing in jeopardy the title held by grantees to all the school lands in California, and could only be authorized by the most positive and clearly expressed provisions of law. In my opinion there is nothing in the act which can thus be in |