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The Esmeralda had already adversed the claim made by the Great Eastern to the identical ground embraced in such applications, and suits had been commenced and issue joined as to the rights of the respective parties to said ground. Such suits are still pending, so far as this Department is advised. The trial of those suits will determine all the rights of the parties to the property in contention.

The receiving of the applications of the Esmeralda led to the counter adverse claims made by the Great Eastern and to the suits begun in consequence thereof. These proceedings were not necessary to a settlement of the controversy. They engendered a multiplicity of suitsan evil always to be discountenanced, and which modern legislation especially has been anxious to prevent.

Section 2326 of the Revised Statutes provides that when an adverse claim is filed during the period of publication, "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 by a court of competent jurisdiction, or the adverse claim waived."

The subject-matter of the controversy having been transferred, by the provisions of the statute, to a court of competent jurisdiction, all further proceedings in the Land Office between the same parties affecting the property in dispute were stayed, with the single exception of the publication of notice (already commenced), and making and filing proof thereof. This prohibition extended to the receiving and filing of the new applications for the land in conflict until the controversy was settled by the court.

The Esmeralda Company, under the statute, was to assert its claim to the property, not by filing applications therefor, but by filing a claim adverse to the application already made, and commencing a suit thereon within the statutory period.

The claim that the General Land Office has lost jurisdiction because adverse claims were made and suits commenced under the last applications received at the local office, is not well taken. Such proceedings do not prevent the Land Department from deciding the question of the regularity of the action of the local office in receiving the applications and dismissing from the record papers improperly placed in its files.

I affirm your decision, and return the papers submitted with your letter of October 14, 1882.

4531 L 0- -45

APPLICATION UPON JUDGMENT.

3. ALBERT F. HARSH.

An application by an adverse claimant for the ground in conflict, after judgment in his favor, must be accompanied by an official plat and field-notes of the land applied for, with a certificate of $500 worth of improvement thereon.

Commissioner McFarland to the surveyor-general at Denver, Colo., July 27, 1883.

SIR: Mineral entry No. 1327, Leadville series, made October 20, 1882, by Albert F. Harsh et al. for the A. Y. lode, comes under the provisions of section 2326, Rev. Stat., the claimants paying for and entering land awarded to them by judgment of the district court of the fifth judicial district of Colorado, said judgment baving been rendered in a suit brought by these applicants for patent on an adverse claim filed by them against the applicants for patent for the Ocean Wave lode.

Said section 2326 provides that after judgment shall have been rendered, the party entitled to the possession of the claim may 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, &c.

This Office is of the opinion that the words "and the description re quired in other cases" contemplate a plat and field-notes of survey, properly made and approved by the surveyor-general, as required in lode applications for patent. I therefore herewith inclose the certified copy of said judgment roll awarding the land to these claimants, and you will construct therefrom a plat and descriptive field-notes, making said judgment the basis therefor.

As soon as completed you will forward the plat and field-notes to this Office, returning therewith the copy of the judgment.

An additional certificate of $500, in labor and improvements, will also be required.

DEFECTIVE ADVERSE CLAIM-SUIT PENDING.

4. SAMUEL MCMASTER.

Although the adverse claim was dismissed because sworn to by an attorney instead of an adverse claimant, and such action became final by failure to appeal, nevertheless, suit having been commenced thereon in the courts within thirty days from filing, the Department will suspend action until such suit is terminated.

Secretary Teller to Commissioner McFarland, December 7, 1883.

SIR: I have considered the appeal of Samuel McMaster from your decision of March 19, 1883, in the matter of the Lincoln Quartz Mine, No. 132, in the Deadwood, Dak., land district.

It appears that McMaster filed an application for patent for this mine October 30, 1878, and that December 30 following, during the period of McMaster's publication, George Brettell, as attorney for F. S. and A. L. Brettell, filed an adverse claim for the Greenback lode, sworn to by himself, and that suit was commenced thereon January 27, 1879. On February 25, 1880, you dismissed the adverse claim for the reason that it was not sworn to by either of the claimants, but by their attorney. No appeal was taken from this dismissal.

March 30, 1880, McMaster filed in your office a certificate of the clerk of the court that no suit was pending involving title to any part of the Lincoln claim, except the one brought by A. L. and F. S. Brettell, as owners of the Greenback lode, against him as owner of the Lincoln claim.

On these facts you held it would be improper for you to issue patent to McMaster pending suit in a court of competent jurisdiction involving the possessory title to a large portion of the Lincoln claim until he filed in your office a certificate from the clerk of the court that the suit had been dismissed, or had been decided in his favor. Although section 2326 of the Revised Statutes requires that "an adverse claim shall be upon oath of the person or persons making the same," and the present claim was filed upon the oath of their attorney only, and although your decision dismissing the adverse claim became final against such claimants for want of appeal so far as respects proceedings in the Land Department, I am of the opinion that the claim having acquired a status in the courts, the question of its regularity and validity should be left to the judgment of the court, and that pending the proceeding this Department should take no action therein.

Your decision is affirmed, and the papers transmitted with your letter of May 23, 1883, are herewith returned.

FAILURE TO BRING SUIT-PUBLICATION-OIL-BEARING LANDS.

5. DOWNEY v. ROGERS.

Where suit is not commenced within thirty days after filing an adverse claim, as required by statute, it must be held that no adverse claim exists.*

A slight misdescription in the published notice held insufficient to defeat the regularity of the proceedings.

Secretary Teller to Commissioner McFarland, December 8, 1883.

SIR: I have considered the case of Stephen W. Downey v. Samuel E. Rogers, applicant for patent for the Washington, Adams, Jefferson, and Madison oil claims, in the Cheyenne, Wyo., land district.

This application was filed February 22, 1882, and during the period of its publication, to wit, April 22, Downey filed an adverse claim, al

*It does not appear that a suit in court was ever commenced in this case.

leging prior ownership and possession of the land involved. He was notified of his duty to commence the action required by law within thirty days after such filing, which he did not do; but alleges in excuse, that May 18, his attorney transmitted by mail, by registered letter, to the clerk of the proper court, all the papers necessary for bringing such action (with the proper fees therefor), with directions to the clerk to commence the same without delay; that this letter was received by the clerk on the following day, but that the return registry receipt was not received until the 28th; that the attorney telegraphed to the clerk on the 22d to ascertain if he had commenced the action, to which he received no reply, and that the reason suit was not commenced within the required time was because both the clerk and his deputy were absent from their office on May 18, 19, 20, 21, and 22.

The time within which such action must be commenced is limited by section 2326 of the Revised Statutes, and neither your office nor this Department have authority to waive the requirement. Nor is it the duty of the clerk of the court to commence an action under this section further than to file in his office such papers as he may receive for that purpose.

When this is done, all further proceedings must be performed by the adverse claimant. If he trusts the clerk to perform the duties incumbent upon himself, avoiding his personal attention, and no action is brought, or if failure results from nonreception of letters sent by mail when he might personally have directed and overseen the matter, or if he chooses to delay action until the last few days of the time required for bringing suit so that the failure thence results, the laches are his own, and he must suffer the consequences.

The statute affords no relief to Downey for the failure to commence this action within the required time, and hence it must be held, under section 2325," that no adverse claim exists."

But Downey protests that Rogers' publication was defective and therefore so far fatal as to require a new publication, in that the last course and distance of the survey to inclose the tracts is made to run east instead of west. An inspection of the survey shows undoubted error in this description, but Downey was not misled thereby, nor did he lose any right, and I concur with you in the opinion that the objec tion is not of sufficient merit to defeat the regularity of the proceeding. You however reject the application of Rogers because it embraces four separate locations of one hundred and sixty acres each, aggregating six hundred and forty acres, whereas your Circular Instructions of September 22 and December 7, 1882, forbid an application for patent to a placer claim by an association of persons for more than 160 acres, and provide that no application shall embrace more than one location, and that applications then on file, whether published or not, must conform to these regulations.

My letter of January 30, 1883, (Copp. Feb., 1883), considered the in

structions of September 22, and December 7, 1882, in reference to lands containing deposits of borax, soda, alum, &c., and held that their ap plication to such lands would result in the exclusion of the lands from sale. I therefore allowed their entry under the preceding regula tions of October 31, 1881, in certain named States and Territories, requiring, however, an applicant for patent to show affirmatively that the lands were not valuable for any purpose other than that for which application was made. Whether or not the same ruling should apply to oil lands, is an undetermined question.

That the facts may be first ascertained before deciding the same, 1 direct that you order an investigation as to the character and value of the lands in controversy and the improvements thereon, and that upon report thereof you transmit the same to this Department.

PUBLICATION-CONSTRUCTION-PRACTICE-CROSS ADVERSE CLAIMS

AND SUITS.

6. MINER v. MARIOTT ET AL.

The construction of section 2325, Revised Statutes, which allows sixty-three days within which to file an adverse claim is erroneous, and will not be followed in the future.

Until a rule is changed it has all the force of law, and acts done under it while it is in force must be regarded as legal.

Under the circumstances in this case, cross adverse claims having been filed and suits thereon commenced in court, further proceedings in the Department will be suspended.

Secretary Teller to Commissioner McFarland, January 4, 1884.

SIR: I have considered the case of Charles K. Miner, claimant of the Spencer lode v. J. G. Marriott et al., claimants of the Tabor lode, on appeal by the last named party from your decision of January 13, 1883.

These lodes are situated in the Monarch mining district, Chaffee County, Colorado.

Application for the Tabor lode was made May 26, 1882, at the Leadville land office.

Publication was commenced in the Colorado Mining Ledger, a weekly paper, June 1, 1882, and continued till August 10, 1882.

Miner, the Spencer lode claimant, offered for filing his protest and adverse claim on the 3d of August, 1882. Said adverse was received and filed in the local office. Suit was duly commenced, and, it appears, is now pending.

The Tabor lode claimants averred that the adverse claim was not offered for filing within the time prescribed by law, i. e., within the legal period of publication, and, therefore, that its acceptance by the local office was wrong and illegal.

Your office, upon an examination of the case, sustained the action of the local officers, and decided that the adverse claim filed with them

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