The purpose of requiring the notice to be posted on the claim and in the local office and published in a newspaper is to give notice to persons having adverse claims of the pending application and these three methods must be pursued simultaneously so that if an adverse claimant did not get notice in one way he might in either of the others and the only object of the notice is to inform the world that the claimant is seeking to enter the land. Byrne v. Slauson, 20 L. D. 43, p. 45. Gowdy v. Kismet Gold Min. Co., 24 L. D. 191, p. 194. The purpose of this provision of the statute requiring a publication of notice of an application for a patent is to diffuse information respecting the application for the patent in the vicinity of the claim and among those whose residence in that locality presupposes their interest in the claim or their knowledge of the same. Tough Nut and Other Lode Claims, In re, 32 L. D. 359, p. 360. Reed v. Bowron, 32 L. D. 383, p. 385. Northern Pac. R. Co., In re, 32 L. D. 611, p. 614. See Albemarle and Other Lode Min. Claims, In re, 30 L. D. 74, p. 77. The publication of notice of an application for a patent required by the statute is notice to all the world to present to the Land Office any adverse claim to such application and a failure to do so constitutes in law an admission of the truth of every fact covered by such application and the issuance of a patent pursuant to such application, and a failure to adverse the same is as conclusive of the patentee's rights as if a contest in respect to such application had been initiated in the Land Office and subsequently adjudicated by a competent court in favor of the applicant, and in either case it is absolutely conclusive against all adverse claimants. Bunker Hill, etc., Min., etc., Co. v. Empire State, etc., Min., etc., Co., 109 Fed. 538, p. 545. Overruling Bunker Hill, etc., Min., etc., Co. v. Empire State, etc., Min., etc., Co., 108 Fed. 189. See Richmond Min. Co. v. Rose, 114 U. S. 576. Gwillim v. Donnellan, 115 U. S. 45. Last Chance Min., etc., Co. v. Tyler Min. Co., 157 U. S. 683, p. 695. The notice required by this section is a general notice to all persons who might from any cause claim any interest in the land, and a person claiming an interest is not entitled to personal notice. Northern Pac. R. Co. v. Cannon, 54 Fed. 252, p. 257. Notice must be given by an applicant in order that conflicting locators may have an opportunity to file adverse claims and raise and try any issue as to priority or maintenance of possession. Mackie, In re, 5 L. D. 199, p. 200. The publication of notice of an application for a patent for mineral land is imperatively required, and the object is to notify persons having interest which might be adversely affected by the issuance of a patent and afford them opportunity and right to file adverse claims. Preston, In re, 10 C. L. O. 34. The notice of an application for a patent for mineral lands for which the statute provides is the notice that is required, and when such a notice is given all persons are charged with such notice and no one is permitted to say that he did not in fact have notice. Golden Reward Min. Co. v. Buxton Min. Co., 79 Fed. 868, p. 875. Publication of notice is the process bringing all adverse claimants into court, and if no adverse claim is presented it is conclusively presumed that none exists, and thereafter no third person has any rights or equities in the land. Hunt v. Eureka Gulch Min. Co., 14 Colo. 451, p. 455. People v. District Court, 19 Colo. 343, p. 347. The law and the regulations as to the giving of notice of application for patent of a mining claim is more elaborate than any other class of the public lands, and the reason is that mining claims are often located in regions remote from settlement where few people are to be found and none seldom reside permanently, and the law intended that full and adequate notice should be given to the world of the application and that those seeing the notices whether posted or published might from the contents thereof locate the claim. Gowdy v. Kismet Gold Min. Co., 22 L. D. 624, p. 627. Gowdy v. Kismet Gold Min. Co., 24 L. D. 191, p. 193. The fact that an applicant bases his right to patent for a mining claim because he has held it for a period of time which satisfies the statute of limitations of his state will not excuse the publishing and posting of notice of his application. Smith, In re, 7 C. L. O. 4. 2. THREE METHODS OF GIVING NOTICE PLACES OF POSTING. This section prescribes three concurrent methods of giving notice: (a) Posting by the mineral claimant of a copy of the plat on the claim, together with a notice of his application for patent, and filing an affidavit and copy of such notice in the Land Office; (b) publication by the register of the local office of notice of such application for a period of 60 days, in a newspaper published nearest the claim; and (c) posting by the register of such notice of application in his office for the same period. Tilden v. Intervenor Min. Co., 1 L. D. 572. The notice required by this section shall be concurrently given by three different methods, the object of which is to afford wide publicity of the applicant's patent proceedings in order that possible adverse claimants may seasonably come in and litigate the validity of their claims; and the statute directs that a copy of the plat and of the notice of the application for a patent shall be posted in a conspicuous place on the land. Tom Moore Consol. Min. Co. v. Nesmith, 36 L. D. 199, p. 201. This section does not require that a location notice shall be recorded, nor does it require that a notice shall be posted on the claim, but leaves these matters to the regulation of local laws. Carter v. Bacigalupi, 83 Cal. 187, p. 188. 3. POSTING NOTICE ON CLAIM. a. GENERAL REQUIREMENTS-SUFFICIENCY. The department requires a claimant to post a copy of the plat of survey in a conspicuous place upon the claim, together with notice of his intention to apply for a patent, and this notice must give the date of posting, the name of the claimant, the name of the claim, mine, or lode, the mining district or county where the location is of record, or where the record may be found, the number of feet claimed along the vein with its supposed direction, and the number of feet claimed on the lode in each direction from the point of discovery, together with the names of adjoining claimants on the same or other lodes, or the names of the nearest claims. Mimbres Min. Co., In re, 8 L. D. 457, p. 459. This section is silent as to the contents of notice of application for a patent for a mining claim, but requires the applicant, before filing his application, to post a copy of the official plat of survey, together with a notice of such application for patent in a conspicuous place on the land, and upon the filing of the application with the plat, field notes, notices, and affidavits the register shall publish a notice for 60 days that such application has been made. Hallett & Hamburg Lodes, In re, 27 L. D. 104, p. 108. The notice of application required to be posted on a mining claim is an integral and essential part of the notice of application and is required to be contemporaneously posted for 60 days on the claim and in the local land office and to be published in a newspaper, and if any one of the three notices is insufficient, it renders them all valueless. Gross v. Hughes, 29 L. D. 467, p. 469. The posting in a conspicuous place on the land embraced in a plat of the claim, or claims in common, of a copy of such plat together with a notice of application for patent is, so far as posting upon the ground is concerned, all the law requires to entitle a mineral applicant to a patent to a group of contiguous lode mining claims held in common and embraced in his application. Phoenix Gold Min. Co., In re, 40 L. D. 313, p. 314. The posting of one copy of the notice and plat within the limits of a group embracing two or more contiguous mill sites is sufficient without posting a separate copy upon each claim. Phoenix Gold Min. Co., In re, 40 L. D. 313, p. 315. b. CONSPICUOUS PLACE-MEANING. The posting of a plat and notice of application for a patent in a conspicuous place on a mining claim is one of the three statutory methods to be pursued simultaneously by which all persons are to have notice of the intention of the applicant to procure title to the land. Ferguson v. Hanson, 21 L. D. 336, p. 339. See Byrne v. Slauson, 20 L. D. 43. The term conspicuous as used in this section means open to the view, or obvious to the eye, and easy to be seen, or plainly visible, or otherwise advertised in poster or placard form and so attached to something upon the land in the position that they can be read conveniently by the public without being removed. Tom Moore v. Nesmith, 36 L. D. 199, p. 201. C. CONSPICUOUS PLACE-INSTANCES. A shaft house is a most conspicuous object upon a mining claim and especially where there are no other improvements, and is a conspicuous place on a mining claim for the posting of a notice, and especially where there are no other improvements on the claim, and it is immaterial upon which particular side or part of the shaft house the notice is posted. Gowdy v. Kismet Gold Min. Co., 22 L. D. 624, p. 626. Ferguson v. Hanson, 21 L. D. 336, p. 338. Gowdy v. Kismet Gold Min. Co., 23 L. D. 319. The posting of a notice on the inside of a shaft house is posting the notice in a conspicuous place as required by law, where in a locality it is the custom for notices to be so posted and miners are accustomed to look in such places for the desired information. Johnson, In re, 9 C. L. O. 113. The posting of plats and notices in open boxes about 2 feet square and 1 foot deep placed upon the ground with rocks around and on top of them for their support and to keep them in place, and located from 150 to 200 feet from the discovery shaft does not satisfy the statute, but indicates a studied effort on the part of the applicant to avoid a compliance with the law requiring the posting of the notices in a conspicuous place. Ferguson v. Hanson, 21 L. D. 336, p. 337. d. TIME OF POSTING NOTICE AND PLAT. The posting of the notice of the copy of the plat, together with a notice of the application for a patent, shall be done before application is filed, and must be in a conspicuous place upon the lands embraced in the plat of survey, and it is sufficient where the plat of survey embraces the entire claim and the posting was made in a conspicuous place upon the land embraced in the plat, and the fact that the application subsequently filed relinquished and excluded the portion of the land embraced in the plat upon which the copy of the plat and the notice were posted does not vitiate the notice. Hughes v. Gilbert, 2 L. D. 756, p. 757. Pratt v. Avery, 7 L. D. 554, p. 555. Gilbert, In re, 10 C. L. O. 256. The posting as required by this section must be done before the filing of the application for patent, and the affidavit for proof of such posting must be filed before any proceedings may be had in the Land Office upon the application; and when these conditions have been met, the register must then publish a notice of application for a period of 60 days in a newspaper to be designated by him as published nearest to the claim and post such notice in his office for the same period, and if no adverse claim is filed within this period of publication, it may be assumed that none exists. Mojave Min., etc., Co., v. Karma Min, Co., 34 L. D. 583. 4. POSTING IN REGISTER'S OFFICE. The register is required to publish a notice of the application for a period of 60 days and to post such notice in his office for the 60-day period of publication. Williams, In re, 17 L. D. 282, p. 284 (on review). See Great Western Lode Claim, In re, 5 L. D. 510. Tilden v. Intervenor Min. Co., 1 L. D. 572, p. 574. The publication and posting of notice by a register is an indispensable prerequisite to the acquisition of patent to a mining claim. Pocatello Gold, etc., Min. Co., In re, 42 L. D. 550, p. 552. It is just as incumbent upon a register to post the notice of the application in his office during the entire period of publication as it is for him to publish notice of the application in a newspaper, or for the claimant to post a copy of the plat and notice upon his claim. Tilden v. Intervenor Min. Co., 1 L. D. 572. On the failure of the register to post a notice of publication in his office a republication must be made in accordance with the statute. Williams, In re, 17 L. D. 282, p. 284. 5. PUBLICATION IN NEWSPAPER. a. DUTY OF REGISTER. When the proper application is made, the register of the Land Office is required to publish a notice of such application for a period of 60 days in a newspaper designated by him and to post such notice in his office for the same period. Smelting Co. v. Kemp, 104 U. S. 636, p. 656. The duty as to publication of notice is placed upon the register, and a claimant should not suffer from an insufficient compliance where the rights of others are not prejudiced. Oro Placer Claim, 11 L. D. 457, p. 459. See Becker v. Sears, 1 L. D. 575. The burden should not be put upon a mineral claimant of proving affirmatively that the register properly discharged his duty with reference to publication of notice when the presumption is in favor of such conclusion. Oro Placer Claim, In re, 11 L. D. 457, p. 459. Under this section the publication of the notice of application for a patent and the designation of the newspaper in which the publication is to be made are acts required of the local officers, and as such acts are not ministerial in character a receiver is not authorized to designate the paper in which the notice should be published. Waller, In re, 22 L. D. 318, p. 319. See Dean Richmond Lode, În re, 1 L. D. 545. An order for publication of notice for a patent for a mining claim is insufficient if it is signed by the receiver and not by the register. Waller, In re, 20 L. D. 144. See Waller, In re, 22 L. D. 318. An order of the General Land Office dismissing a protest and requiring the mineral applicant to make a republication is equally binding upon both parties and must be so treated in all subsequent proceedings. Waller, In re, 22 L. D. 318, p. 321. b. DESIGNATION-DISCRETION OF REGISTER. A register may exercise his official judgment as to whether or not a certain publication is a newspaper within the meaning of the statute, and he may designate any newspaper which will effect the object of the publication unless his decision is arbitrary or manifestly in violation of the statute. Bretell v. Swift, 16 L. D. 178, p. 179. Tomay v. Stewart, 1 L. D. 570. Arnold, In re, 2 L. D. 758. Erie Lode v. Cameron Lode, 10 L. D. 655, p. 657. See Condon v. Mammoth Min. Co., 14 L. D. Î38. In the matter of giving a notice as required by this section the register has some discretion as to the designation of the newspaper, as to its established character as such and its stability and general circulation. Bretell v. Swift, 17 L. D. 558, p. 560. The register of the local office is invested with discretion in the matter of the selection of a newspaper in which to publish notice of an application for patent for a mining claim, but his discretion is subject to control, and the object of this discretion is to carry into effect the purpose of the statute itself. Pikes Peak and Other Lodes, In re, 34 L. D. 281, p. 284. An applicant for a mining claim is not at fault if the register makes an erroneous designation of a newspaper for publication of his notice. Stewart, In re, 8 C. L. O. 155, p. 156. The purpose of the section demands its practical application, and the distance in contemplation is that which must actually be traveled to bring the newspaper in the neighborhood of the claim, in order that the intended office of the notice may in that vicinity be performed. Pikes Peak and Other Lodes, In re, 34 L. D. 281, p. 286, 56974°-Bull. 94-15-26 |