son authorized by the statute to file an adverse claim, but the construction given this provision of the statute does not prevent such claim being filed by an agent of the claimant, for in case the adverse claimant were a corporation, the necessity of such a construction is quite obvious.1

§ 441. Same-All conflicts not adverse claims. It has been held that in order to constitute an adverse claim the clash of interests must be real and substantial. A conflict must exist as a reality before a controversy will be considered an adverse claim, and a mere hypothetical conflict, although it is just and proper that it should be adjusted, by the court, will not operate to stay proceedings for the disposal of public land. For instance, it is not necessary that the patentee of a claim should file an adverse claim to an application for patent for a cross lode, or other conflicting claim, as the ground patented would be excepted from the subsequent patent.3 An adjoining property owner could not maintain an adverse claim against the

1 Van Dusen v. Star Iron Min. Co., 36 Cal. 571. The recent decisions of the U. S. Supreme Court are all to the effect that unless some Federal question is involved, the mere fact of a contest of a mining claim, does not give the Federal courts jurisdiction. Blackburn v. Portland Co., 175 U. S. 571; Shoshone Co. v. Rutter, 177 U. S. 505; Colo. Co. v. Turck, 150 U. S. 138; Bushnell v. Crooke Min. Co., 148 U. S. 682; Wise v. Nixon, 76 Fed. Rep. 3; 20 Am. & Eug. Enc. Law (2 Ed.), 759. "Where, on mandamus to compel the commissioners of the land office to issue relator a patent to mineral land, the question is whether the land is mineral, under the statutes, so as to be open to the application, a subsequent adverse claimant is not a necessary party (Rev. St., Art. 3498k), providing for the contest of adverse claims in another manner." Colquitt-Tignor Min. Co. v. Regan (Texas, 1902), 68 S. W. 154.

2 Wade's Amer. Min. Law, pp. 186 and 187.

3 Iron Silver Mining Co. v. Campbell, 135 U. S. 286; 16 M. M. R. 218; Iron Silver Min. Co. v. Mike Co., 143 U. S. 394; Same v. Sullivan, 143 U. S. 431. Mill claimant rights are subordinate to mineral claimant. Cleary v. Skiffich (Colo.), 65 Pac. Rep. 59.

owner of a lode claim who had followed the dip of his vein under the land of such adjoining property owner,1 nor would the right or title to an easement support an adverse claim, so as to bring about a stay of proceedings for the procurement. In short, before a controversy can take the form of an adverse claim, there must be a real and substantial conflict of interests.3

§ 442. Same When and where claim must be filed.· Adverse claims, or actions to determine the right of possession to mines, or mining land, must be instituted at the proper United States land office, within the sixty days period of newspaper publication, and the notice of adverse claim must be duly sworn to by the person making the same, before some competent officer of the district, or the register or receiver of the office where the claim is filed.4 It

1 Wade's Amer. Min. Laws, p. 187; Maxey v. Wilkinson, 12 M. M. R. 602.

2 Rockwell v. Graham, 15 M. M. R. 299, a right of way for a flume for

water.

3 Wade Am. M. Laws, p. 187; Copp's M. L. Min. Decisions, 96; 4 Landowner, 3. No one can file an adverse claim, under the statute, who has not an interest in the surface of the land claimed. Noyes v. Mantle, 127 U. S. 348; Del Monte Co. v. Last Chance, 171 U. S. 55; Walrath v. Champion Co., 171 U. S. 293; Providence Co. v. Burke (Ariz.), 57 Pac. Rep. 641; Quigley v. Gillett, 101 Cal. 462; Kannaugh v. Quartette Co., 16 Colo. 341; Cronin v. Bear Cr. Co. (Idaho), 32 Pac. Rep. 204; Basin Co. v. White, 22 Mont. 147; South End Co. v. Tinney, 22 Nev. 19; Mars v. Oro Co., 7 S. Dak. 605; Argentine v. Benedict, 18 Utah, 183; Dohahue v. Johnson, 9 Wash. 187; Iba v. Central Assn., 5 Wyom. 355; 20 Am. & Eng. Enc. Law, 760. The holder of an easement need not adverse a mining claim. Rockwell v. Graham, 9 Colo. 36. Holder of a previous grant can depend on grant and need not adverse. Mantle v. Noyes, 5 Mont. 274; s. c. 127 U. S. 348. Co-owner need not adverse. Turner v. Sawyer, 150 U. S. 578; Brundy v. Mayfield, 15 Mont. 201.

4 U. S. Rev. Sta., § 2325; Hunt v. Eureka Gulch M. C. (Colo.), 24 Pac. Rep. 550; Seymour v. Fischer (Colo.), 27 Pac. 240; Kannaugh v. Quartette M. Co. (Colo.), 27 Id. 245.

should be filed with the register or receiver of the same land office where the application for patent was filed, should set forth the nature and extent of the conflict, and if he claims as a purchaser, should produce an abstract of title, or proof of the fact of his purchase,1 and if he claims as a locator, should file a certified copy of the location from the office of the proper recorder. Where there is a defect in the notice of publication, which would necessitate proceedings to be commenced de novo, by the locator of the claim, if an adverse claim was filed during the notice of the first publication, it should be refiled upon the publication of the corrected notice,3 and if suit had been commenced upon the adverse claim prior to the publication of the corrected notice, it would operate to stay the proceedings subsequent to publication.4

§ 443. Same As between lode and placer claimants. A claimant to a placer mining location is entitled to the possession of a quartz lode within the boundaries of his claim, if the same was not known to exist therein at the time application for a patent to the placer claim was made,' and where an application for a patent to a placer claim is made, a subsequent locator of a quartz lode, within the boundaries thereof, must file his adverse claim during the

1 Ante, idem. Barringer & Adams, pp. 383 to 414.

2 R. S. U. S., supra. Barringer & Adams on Mines aud Mining, pp. 384 to 390.

3 Ante, idem.

Sickels' Min. Laws, 313; Wade, p. 167.

5 Montana Copper Co. v. Dahl, 6 Mont. 131. "Since the locator of a valid placer mining claim is entitled to the exclusive possession of unknown lodes within its limits at the time of making an application for a patent therefor, a subsequent locator of such unknown lodes is a trespasser, as against the placer claimant, and obtains no right or title to such lodes." Clipper v. Eli L. & M. Co. (Colo.), 55 Cent. Law. Jour. 210 (April, 1902).

period of publication of the notice of such application, or he will afterward be barred from questioning the validity of such placer location.1 But where a vein or lode is known to exist within the boundaries of a placer claim, if such claimant applies for a patent and does not include an application for the vein or lode, this would be construed as a conclusive declaration of intention on the part of the claimant that he exercised no right of possession to such vein or lode, and a claim could afterward be located upon such vein or lode, the same as though no prior location of the land had been made. A valid location of a lode claim on the public

1 Rounheim v. Dahl, 6 Mont. 167; 55 Cent. Law. Jour. 212 (Sept. 1902). "Revised Statute (U. S.), Sec. 2333, provides that where a vein or lode is included within a placer claim, the applicant for a placer patent must state the fact, and make specified payments therefor, but that, if the existence of a vein or lode therein is unknown at the time of the application, the placer claim shall carry all the mineral within its boundaries, but if known to exist at the time of the application and not mentioned in the claim or patent, the application shall be construed as a conclusive declaration that the placer claimant has no right to the possession thereof. This statute has been frequently construed; thus, it has been held that, under the statute, the holder of a placer patent which includes a vein known, but not mentioned in the application or patent, has no title thereto, and cannot disturb the peaceable possession of another, whether under title or as a mere trespasser. Reynolds v. Silver Mining Co., 116 U. S. 687; 6 Sup. Ct. Rep. 601. But in order that lodes may be excepted under this statute from the grant in a placer patent, they must be clearly ascertained and of such value as to justify their exploitation and known to exist at the time of application for patent. Hence in a controversy as to whether a certain lode was included in a placer patent, testimony that at the time of the application for the placer patent the land was thought more valuable for placer mining than for quartz lode mining was held admissible to show that the quartz lode was not such as would be exempt from the grant of the placer patent. Brownfield v. Bier, 15 Mont. 403; 39 Pac. Rep. 461; United States v. Iron Silver Mining Co., 128 U. S. 673; Montana R. R. v. Migeon, 68 Fed. Rep. 811; Sullivan v. Iron Silver Mining Co., 143 U. S. 431; 12 Sup. Ct. Rep. 555.

2 United States v. Iron Sil. Min. Co., 128 U. S 673. In a suit to determine adverse claims to mining grounds, defendants held to have the

land is a grant from the government to the locator thereof, and carries with it, by a compliance with the law, the right of obtaining a full and complete title to the land, included within the boundaries of the claim,1 and after a patent has been issued to the land covered by the claim, in an action at law, the issuance of the patent would be conclusive as to the title of the land within its limits.2

§ 444. Same Where In case of overlapping claims. two persons take up adjoining claims and the one last taken up overlaps the other, and neither claimant is working that portion of the claim which overlaps the other, but both are working different portions of their respective claims, the fact that the locator of the last claim has been in possession of his claim for the full statutory period would not divest the owner of the first claim of the right to his claim, to the extent of the original boundaries, for the possession of that portion of his claim that overlapped the second location, by the locator of the second claim, would not constitute an adverse possession to that of the locator of the first claim.3 To constitute an adverse possession

burden of establishing an "actual discovery" prior to the initiation of the plaintiff's location. Sands v. Cruikshank (S. Dak.), 87 N. W. Rep. 589. A location of a mining claim, based on a discovery of mineral within the limits of another existing and valid location, is void. Tuolumne Consol. Min. Co. v. Maier (Cal.), 66 Pac. Rep. 863.

1 Butte City Smoke House Lode Cases, 6 Mont. 409.

2 Talbot v. King, 6 Mont. 76; Seymour v. Fisher (Colo.), 27 Pac. Rep. 240; Kannaugh v. Quartette M. Co. (Colo.), 27 Pac. Rep. 245; Richard v. Wolfing (Colo.), 32 Pac. Rep. 971.

For priority of title

8 Maine Boys T. Co. v. Boston T. Co., 37 Cal. 41. where veins intersect see R. S. U. S., Sec. 2336. A prior location will prevail over one three days later, although the boundaries were not marked off, as this was not an unreasonable time between the posting of notice and marking the boundaries. Union Mining &c. Co. v. Leicht, 24 Wash. 585.