In the application of Wood et al., filed February 24, 1874, the applicants assert that they located the tract on or about December 23, 1873; they also assert that they obtained peaceable possession of the land at that time and have remained in possession since.

It is contended by them that the location of the Nebraska claim has been abandoned. On the contrary, Seymour asserts that the original locators and their grantees have not abandoned said claim, but have remained in possession of the same according to local laws and regulations.

There is on file in the case a transcript of the proceedings in the case of C. H. Seymour vs. L. W. Wood et al., in the supreme court of California, in which it appears that Seymour brought suit in the district court of the fourteenth judicial district of California to recover possession of eight-twentieths of the ground of the Nebraska mining claim, and judgment was rendered in his favor. The legitimate conclusion to be drawn from this judgment is that the jury found that the original Nebraska location had not been abandoned. In your decision of August 18, last, you held, in substance, that in view of this judgment of the court, the fact was established that the prior location had not been abandoned, and rejected the application of Wood et al. for a patent.

It is competent for the department to take the judgment of the district court of California into consideration as evidence on a question of fact, but I am of the opinion that its judgment should not be conclusive. Before a correct decision can be rendered in this case, the facts in relation to the abandonment or non-abandonment of the prior location must be determined.

The evidence now on file is ex parte, each claimant to the land asserting his superior right thereto, and, as said right must depend upon the facts, you are instructed to order a hearing to ascertain, if possible, the truth in relation to the abandonment of the Nebraska claim.

If the applicants establish the fact that they obtained peaceable possession of the ground, have remained in possession of the same, and have the right of said possession, their application must be recognized. The claim may be defeated by establishing the facts that the ground was not subject to location, and any party has the right, as a protestant, to submit evidence on that point. Should it be established that, by compliance with the mining laws and customs, and regulations, prior locators have the right of possession, the tract cannot be considered as subject to relocation, and the application must be rejected. The evidence must be confined to the question of abandonment, and the status of the parties will not be changed by the order for a hearing. I concur with you in the opinion expressed in your letter of March 22, last, that Seymour cannot be regarded as an adverse claimant under the statute, and also in the opinion expressed in your decision of August 18, last, that the publication of the application, although somewhat irregular, was not fatal to the application, as it was a substantial compliance with the law.

A hearing is not expressly provided for in the act of May 10, 1872, but I am clearly of the opinion that it is within your jurisdiction, under the supervisory power conferred upon you by the first section of the act of July 4, 1836, vesting in the Commissioner of the General Land Office control in all matters pertaining to the disposal of the public lands, to order hearings, when it is necessary for the purpose of ascertaining the facts in a given case, without which it is impossible to render an intelligent decision.

Due notice of the hearing should be given to all parties in interest; when the evidence, with the opinion of the local officers thereon, is received, the case should be determined upon its merits.

The papers transmitted with your letter of October 21 last, are herewith returned. Very respectfully,

COMMISSIONER OF THE GENERAL LAND OFFICE.

C. SCHURZ, Secretary.

REGISTER AND RECEIVER,

Carson City, Nev.:

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., August 14, 1878.

GENTLEMEN: I have carefully considered the application filed in this office December 16, 1875, by the Sierra Nevada Silver Mining Company, to have recalled and canceled the patent issued to the Union Consolidated Silver Mining Company, September 28, 1875, for claim upon the Comstock Lode, in Nevada.

The facts, as appear from the records and files of this office, are as follows, viz: That the premises described in said patent were located by the Union Gold and Silver Mining Company (of which the Union Consolidated Silver Mining Company is the legal successor), June 10, 1859, and record of said location was made July 4, 1859, according

to the mining laws then in force. Application for patent by said company was filed in your office August 10, 1868. Notice was published in the Daily Territorial Enterprise, a newspaper published at Virginia City, Nev., on the 12th of August, 1868, for the full period of ninety days thereafter, and notices and diagrams were duly posted upon the claim and in the register's office for the period of time prescribed by the statute. On the 27th of May, 1874, the said Union Gold and Silver Mining Company conveyed by deed to the Union Consolidated Silver Mining Company the premises described in said application, which last-named company completed the proofs required, and, on the 17th of August, 1875, made entry of said claim. On the same day the register transmitted the papers to this office, and a patent was issued, September 28, 1875 (as hereinbefore stated), to the said Union Consolidated Silver Mining Company for the premises, and said patent was duly transmitted to the local office, and delivered to the representative of said company.

There is a difference in description and area of the ground as described in the application and embraced in the patent; but upon examination it is evident that there is no difference that would lead to any misunderstanding, so far as the ground in dispute is concerned. Therefore, this difference is not material.

By the application of the Sierra Nevada Silver Mining Company, now under consideration (made to this office, as stated, December 16, 1875), the following facts have been disclosed, viz:

That the Sierra Nevada Silver Mining Company located and recorded under the mining laws June 22, 1859, giving a description which embraced the ground in dispute between the two companies, being the northerly 298 feet of the ground embraced in the patent which has been issued to the Union Consolidated Silver Mining Company. August 10, 1868, the Sierra Nevada Silver Mining Company filed in your office an application for a patent for the premises located, the description embraced therein including the ground in dispute.

This was the same day that the application was filed by the Union Gold and Silver Mining Company, and the application of the Sierra Nevada Silver Mining Company bears a minor number to that of the other application, and although filed upon the same day, seems in point of time to be the prior application.

On the 13th of November the Union Gold and Silver Mining Company instituted an action of trespass in the court, and applied for an injunction against the Sierra Nevada Silver Mining Company, but this action was never prosecuted to a final issue.

The Sierra Nevada Silver Mining Company, under date of April 24, 1874, filed in your office an adverse claim and protest, and instituted suit against the Union Gold and Silver Mining Company May 22, 1874. This suit has not reached a final determination, but an injunction pendente lite was issued, restraining each of the defendants from taking any further steps toward the perfection of the application for patent. This injunction has never been dissolved, but remains in force.

The ground in dispute was actually occupied by the Sierra Nevada Silver Mining Company from 1866 to 1868, its hoisting works having been erected thereon and mining explorations of great extent having been carried on.

Some of the foregoing facts are evidenced by ex parte testimony only, but it is thought they will not be disputed, and if they are, the verity of any or all can be ascertained. The counsel for applicant allege that "no protest or adverse claim has ever been filed against said application, nor have the necessary steps been taken to complete the application, for the reason, as alleged by the company, that this could not properly be done before the settlement of the controversy as to the 298 feet in the courts. It is set forth in the adverse claim and protest filed April 24, 1874, above referred to, and also in the application under consideration, that the neglect to file a protest within the period of publication, and up to the date of the protest, was on account of a conspiracy between Robert Apple, then superintendent of the Sierra Nevada Silver Mining Company, and the officers of the applicant. This is denied by Apple and others. The register has been superseded, and I shall not comment upon his action in withholding the papers adverse to the issue of patent, further than to remark that he was aware of the conflict between the claims, and while he states that service was not made upon him in the case of the suit brought by the Sierra Silver Mining Company, he does not say that he was not aware of its pendency, and under the circumstances it was unquestionably his duty to have transmitted all the papers, whether filed by the applicant or adverse claimant, that they might have been considered before the patent issned.

Adverse claims are referred to in the act of July 26, 1866, three times.

In section 2 claimant may file and receive patent "to whose possession there is no controversy or opposing claim"; in section 3, where the survey is to be made, "if no adverse claim shall have been filed"; and in section 6 all proceedings shall be stayed whenever any "adverse claimants" shall appear before the approval of the survey. This law contains no provision as to the form or manner of presenting or filing adverse claims.

The first general circular issued by this office to registers and receivers in regard to

this act was dated January 14, 1867. In it the sixth section of the act is quoted without comment; the supplemental circular thereto of June 25, 1867, contains the following:

"Third. Should a party appear as an adverse claimant as contemplated by the sixth section of the act, you will require such person to show by proof the claim or interest he may have in the mine, and should the same be satisfactory to you, all further proceedings will be stayed, until a final settlement and adjudication shall be had in the courts. But in case the adverse claimant after proceedings have been stayed shall fail to institute action in the courts, either pending or at the next ensuing session, with a view to the final adjustment of the claims, you will proceed with the case as if no objections had been filed."

These were the instructions which had been issued when the applications were made by the respective parties in 1868.

For reasons which are obvious, the same technical observance. in pleading has not been required before the local land offices as is customary in courts, where rules are prescribed in accordance with law or custom, and the attorneys are held to a compliance therewith, and with the requirements of legal authorities upon the subject, by judges learned in the law, and where there is evident good faith manifested the ruling of this office should be liberal, and it should be the aim to give all parties interested an opportunity to assert their rights, and not deprive any one of this privilege by a purely technical ruling. Such action, therefore, as gave notice to the local officers of a conflict in claims, and clearly defined such claims, would seem to me to be a sufficient compliance with the act of 1866 to entitle the party asserting the claim to consideration as an adverse claimant under said act. The description of the premises claimed was distinctly set forth in both applications and accompanying diagrams. I am of opinion therefore that each of the parties had taken such steps in 1868, and prior thereto, as should be regarded as an adverse filing in relation to the application of the other.

That the register had sufficient knowledge of the claim of the Sierra Nevada Silver Mining Company to put him upon full inquiry when he permitted the entry by the Union Consolidated Silver Mining Company, August 17, 1875, is evident from the fact that upon the diagrams accompanying that entry the northerly 298 feet of the premises patented has marked upon it, Sierra Nevada and Union disputed ground," and in letter of 4th of February, 1876, in forwarding the protest and adverse claim of the Sierra Nevada Silver Mining Company, filed April 24, 1874 (in compliance with directions from this office), he acknowledges that he was aware of its existence, but did not regard it as having been filed in time.

In regard to this protest, if it had been filed within ninety days after the applica tion of the Union Gold and Silver Mining Company it would constitute as full a compliance with the law and all instructions as to adverse filings as could practically be made. Prior to the decision of the Secretary of the Interior of March 14, 1872, in the case of the "Flag-staff Lode," in Utah, it had been uniformly held that adverse filing could be made at any time prior to the approval of the survey. The Secretary gives the following reasons in support of his decision in the "Flag-staff" case, that "an adverse claim might be filed, which of itself would suspend the approval of the survey until it was adjudicated. Another claim might be filed before that was disposed of, or the survey approved, and thus adverse claims might lap over each other, until it would be almost an impossibility for a claimant to be in a condition where he could demand an approval of his survey and the issuing of his patent."

This reasoning does not apply to the action of the Sierra Nevada Silver Mining Company. This company, as alleged by counsel, did not complete its application because it was awaiting the result of the suit instituted by the Union Gold and Silver Mining Company to decide the title to the ground in dispute, and had, during this time, the ruling of the department down to March 14, 1872, giving assurance that if all proper steps had not been taken an "adverse filing" could be made at any time before the approval of the survey. The filing by the Sierra Nevada Silver Mining Company of April 24, 1874, may come within the letter, but certainly not within the spirit, of the decision in the "Flag-staff" case.

This filing was made and the suit instituted apparently as an earnest effort on the part of the company to assert their claim, it appearing that the suit on the part of the Union Gold and Silver Mining Company was not being prosecuted to a final determination.

In view, therefore, of all these facts, which are now before this office, I am satisfied that all proceedings should have been stayed until final settlemeut and adjudication in the court of the rights of possession to the disputed ground, and not until then should the patent have been issued.

If the patent were in the possession of this office I should direct its cancellation, but having been delivered, it cannot now be canceled or annulled by the department. (13 Opinions Attorneys-General, 456; 13 Peters, 436; 2 Wallace, 525.)

The honorable Secretary of the Interior, in his decision of the 12th of July, 1876, in the case of John W. Harbinson et al., speaking of the issue of a second patent, says: "I am of the opinion that no such patent should be issued except when expressly provided for by law, or in exceptional cases, when the party entitled thereto would be practically remediless without it. If it satisfactorily appears that a patent has been issued through inadvertence, or by the misconstruction of the law, by any of the officers of the government, its return should be promptly demanded, and if the demand is refused proceedings should be immediately instituted to procure its cancellation.

The courts afford ample facilities for such proceedings, and are the proper and only tribunals for the final determination of such questions. I therefore direct that in this case, and in all cases where you become satisfied that patents have been erroneously issued, you request the patentee to return the same, and if he refuses or neglects so to do after reasonable notice, you will report such refusal or neglect to me, that the Department of Justice may be requested to institute proceedings to have said patents canceled."

You will request the proper representative of the patentee to surrender the patent to you that it may be returned to this office for cancellation. If this request is refused, I shall recommend that the Sierra Nevada Company be authorized to institute proceedings in the proper United States court, in the name of the United States, to test the validity of the patent issued to the Union Consolidated Mining Company.

Make the request for surrender of patent without delay, and as soon as a reply is received, or at the end of thirty days from receipt hereof, report your action to this office.

Very respectfully,

J. A. WILLIAMSON,

Commissioner.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., September 28, 1878.

REGISTER AND RECEIVER, Helena, Mont.: GENTLEMEN: I am in receipt of receiver's letter of 1st ultimo, transmitting mineral application No. 613, made in your office May 21, 1878, by the Hope Mining Company, for the "Potosi Lode," being Lot 57, in township 7 north, 13 west, together with protest by James K. Pardee against entry, and asking that the application and survey be canceled.

Mr. Pardee claims and represents no adverse interest, but bases his protest on the following grounds, to wit:

1st. That he finds on examination of the certified copy of the location, and of the official plat and field notes of survey, that said claim was located with surface ground largely in excess of the amount allowed by law, and that the plat shows that the claim was surveyed with a width of surface on the north side of about 30 feet in excess of 300 feet.

24. That, from an examination of said notice of location, it is evident that said Potosi Lode has been floated a distance of about 61 feet eastwardly from the position in which it was staked at the time of its original location, no evidence appearing to have been taken that the stake found by the deputy surveyor at the southeast corner was the identical stake originally patented and given in said notice.

3d. Affiant believes said notice of location is void for uncertainty, for the reason that no description of the kind or size of the stakes used or the marks placed thereon is given in said notice of location, "for which reason the said claimants, in the absence of proof to the contrary, could call anything that happened to be stuck in the ground their boundary stake."

On said first objection, I find that the width on the northerly side of the discovery shaft is about 330 feet, and the width on the southerly side about 125 feet.

The surveyor general, under date of 9th ultimo, informed this office that said survey should not have been approved, for this reason, and that he did not discover the error until the 29th of July last.

The law (sec. 2320 U. S. Revised Statutes) provides that "no claim shall extend more than three hundred feet on each side of the middle of the vein at the surface." When the vein outcrops at the surface there can be no question as to the point from which this lateral measurement must begin.

When the discovery shaft develops the vein at some distance below the surface and the locator does not determine by any further prospecting that the nearest actual surface point is elsewhere, and the fact does not otherwise appear, I am of the opinion that the point of the vein so discovered must be assumed to be the middle of the vein, and the lateral measurements be calculated therefrom.

The law is mandatory, and contemplates that but 300 feet of surface ground shall be taken on either side of the vein; and a compliance with the law necessitates the fixing of the point from which these measurements shall begin. I think the rule above indicated is the only one practicable.

In this case the width of the claim on the northerly side is more than 300 feet from the discovery opening; and the plat and field notes has this day been returned to the surveyor general for correction in said particular.

Referring to the second objection by protestant, I find that the location notice describes the claim as follows: "Beginning at M. C. stone No. 3 on the Hope Lode, and running W. 73° E. along the north line of said Hope Lode 795 feet to a stake; thence W. 680 W. 953 feet to a stake; thence S. 73 W. 89.4 feet to a stake; thence south 66° 30′ W. 1,343 feet to a stake; thence south 68° E. 841 feet to a stake; thence W. 66° 20′ E. 720 feet to the point of beginning. Discovery stake is 140 feet N. E. from corner-stone No. 3 of the Hope Lode, and 125 feet north from north line of Hope Lode.” This location was made February 12, 1876.

The field notes of the survey presented for patent show that the surveyor began at the same point as did the location; that he ran S. 66° 30′ W. (instead of east, as in the location), along the north boundary of the Hope Lode claim "to a post marked for southwest corner of Potosi Lode"; thence N. 680 W. (the same courses given for these two lines in the location) to a point from which northwest corner of this claim bears N. 68° west 238 feet distant. Bearing in mind that the width of this claim as surveyed for patent is much less than as located, and that the northwest corner here referred to is the northwest corner of the location; that the westerly line bears N. 68° W. in both location and survey for patent, and that said line continued, as above shown in said survey, in the same direction intersects at the northwest corner of the location, it is evident that the westerly line of location and the westerly line of survey for patent coincide and are one and the same line, for, when extended 238 feet in the same direction beyond the northwest corner of said survey, they are both found at the same point. Hence I conclude that the stake found by the surveyor at the southwest corner, and described by him as "a post marked for southwest corner of Potosi Lode," was the location corner post. The measurement eastwardly does not give a greater linear distance than that given in the location, and I therefore conclude that the survey cannot extend eastwardly beyond the location.

On the third point of objection, it is only necessary to say that it does not apply to this case. As shown above the southerly and westerly boundary lines of survey are proven to have been the location boundary lines-the first being a line common to two surveys, and the second being proven, as aforesaid, to coincide with the westerly location line. The northerly boundary line is within the location, and the easterly boundary is by measurement less than that given in the location. There is no adverse interest involved, and no averment is made that the boundary stakes are not those marking the location. I therefore decide that the applicant can proceed for patent after the surveyor general shall have corrected the survey and plat, as aforesaid, to comply with the law in respect to the lateral measurement on the northerly side of the discovery opening.

You will be hereafter governed in your official action by the rule herein stated with regard to the width of lode claims. Give notice to all parties, and acknowledge receipt hereof. The papers are herewith returned.

Very respectfully,

J. A. WILLIAMSON,

Commissioner.

The work of the special division of this office having charge of business arising under the laws for the disposal of mineral lands during the fiscal year ending June 30, 1878, and its condition at the beginning of the current year, are thus stated;

Mineral entries made from July 1, 1877, to June 30, 1878

Whole number mineral entries on file and undisposed of..

Agricultural entries awaiting decision on the character of the land....

Applications to enter lands withdrawn as mineral on which hearings have

been held and now awaiting action..

Contests between adverse mineral claimants...

Total number of cases awaiting action

Letters received..

Letters written...

Covering pages in letter record

Covering pages in patent record

642

547 21, 637.37 249

71

1, 114 1,450

435

65

3,064

2,911

2,051

1,738

4,064