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August 3, 1882, was properly received, and on this question the case is now before me on appeal.

Section 2325 of the Revised Statutes requires, among other things, newspaper publication for the period of sixty days as notice of application for mineral patent.

It also provides that

If no adverse claim shall have been filed with the register and receiver of the proper land office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists.

Section 2326 prescribes the method of procedure "where an adverse claim is filed during the period of publication."

For the purpose of deciding the question raised by the appeal, it is only necessary to apply the provisions of law above cited to the facts relative to publication, as disclosed by the record.

These are found to be as follows: The first publication for the Tabor lode was, as already stated, on the 1st of June, 1882. The adverse claim of Miner was filed on the 3d of August, 1882. Excluding, in accordance with a long-established rule of the Department, the first day, we find the 3d of August to be the sixty-third day of publication.

An apparently plain and simple proposition is thus presented for consideration.

The law requires that an adverse, to be effective, must be filed within the sixty days of publication.

Miner's adverse claim was not filed until the sixty-third day. Was it filed within the period prescribed by the law, and has the adverse claimant a legal status as such? This would admit of no discussion were it not for the following facts:

This Department has held for a number of years (certainly since 1874) that where publication is made in a weekly newspaper, ten inser tions are essential in order to show compliance with the law requiring sixty days' publication. In such cases the tenth issue falls on the sixtythird day after the first. In view of this ruling of the Department, your office in October, 1879, promulgated a decision or order containing the following: The last or tenth insertion being essential, it follows that adverse claims may be filed until the expiration of the day upon which the last issue of such weekly publication is made.

This rule has since been followed by your office, and you therefore recognize as legal and valid the adverse claim of Miner, filed on the day of tenth issue of paper containing publication, i. e., on the sixtythird day. In my opinion the practice of your office referred to is not necessary as a logical result of the rule requiring ten insertions in a weekly paper, nor is it consistent with the law which prescribes the time within which an adverse claim may be filed.

Section 2325 of the Revised Statutes specifically fixes sixty days as

the period of publication, and says "if no adverse claim shall have been filed * * * at the expiration of the sixty days of publication it shall be assumed that the applicant is entitled to a patent," &c. The regula tion requiring ten publications (in a weekly paper), thus in fact making the period sixty-three days instead of sixty, does not alter the law as to sixty days for the filing of an adverse claim.

The regulation has its reason in the fact that in no other way can the law requiring sixty days' publication be complied with. Nine issues of a weekly paper would not cover the required period. It is true that the tenth insertion carries the publication three days beyond the legally required sixty days, yet for the purpose of meeting the requirement of law ten insertions are in fact necessary, since the continuity for sixty days can be preserved only by the tenth publication, which falls on the sixty-third day after the first.

It is also true that the applicant cannot proceed to complete his entry until after the tenth publication, but this is because it is essential as proof of sixty days' publication.

These reasons do not apply to an adverse claimant, and his acts are not controlled thereby. He has the plain letter of the law for his guide. His course is clear and his duty plain. He has sixty days, on any one of which he may file his adverse claim. If he fails to file within the sixty days of publication prescribed by the law, he is barred. So far as he is concerned the question is one of very simple computation.

It would be equally plain as to the applicant except for the reasons herein given, and which do not control in considering the rights, either legal or equitable, of an adverse claimant. You will by circular letter notify the local land officers of the rule herein laid down, and when it shall have been so promulgated, require its observance.

So far as the case under consideration is concerned, however, your decision that the adverse claim was properly received, and therefore dismissing the appeal, is affirmed.

The rule of this decision should not operate to interfere with or take away any rights acquired under the law as it has heretofore been construed by your office. Though that construction is, in my opinion, clearly erroneous, such fact does not render illegal any acts which have been performed in accordance with and pursuant to that construction or interpretation. 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. This view will govern you in the consideration of any similar cases which may arise.

Since your decision in the Spencer lode v. Tabor lode case, and the appeal therefrom, to which this decision thus far has had sole reference, another case-that of the Tabor lode v. the Spencer lode-has come before me on appeal. Since it involves the same parties, and in part the same tract, I think the two cases may properly be considered to

gether and disposed of in one decision. The appeal in the case last named is from your decision of September 1, 1883, adverse to the Spencer lode claimants, and comes up on facts substantially as follows:

On the 29th of May, 1883, Charles K. Miner, the adverse claimant in the case discussed in the foregoing pages hereof, filed in the local office his application for patent for the Spencer lode and made the required publication.

The Tabor lode claimants moved to dismiss the Spencer lode application on the ground of conflict with their prior pending application.

They also duly filed protest and adverse claim, and commenced suit, which is now pending. Upon an examination of the case, you dismissed the Spencer lode application, because it embraced land previously applied for, and in regard to which a contest is at present pending both in the courts and before this Department.

On appeal from your decision, it is urged in behalf of the Spencer lode applicants that, (1) pending the suit in the courts, you had no jurisdiction, and therefore erred in dismissing his application; and (2) if it be held that you have jurisdiction pending the suit, your action dismissing the application was certainly erroneous as to that portion of the Spencer lode not in conflict with the Tabor lode.

In view of the fact that suits are pending in both cases, to wit, Spencer lode v. Tabor lode and Tabor lode v. Spencer lode, I am of the opinion that the questions involved may very properly be held in abeyance until a final determination of said suits, or at least of one of them.

I therefore vacate your decision dismissing the Spencer lode application, without prejudice to either party and without decision on the merits, pending the finding by the courts.

I return herewith the papers transmitted with your letter of June 4 and November 27, 1883.

III.-AGRICULTURAL CONTEST.

HOMESTEAD ENTRY-HEARING-CONSTRUCTION.

HOOPER v. FERGUSON.

A mineral application for land designated as agricultural and covered by a homestead entry must not be received until after a hearing determining its mineral character.

Although the application in questien was received contrary to the above rule, it will not be held for cancellation, but both claims will be suspended until after a hearing, at which the burden of proof shall be upon the mineral claimant. The report of the surveyor-general, acting under instructions from the Commissioner, was a sufficient designation of the land as agricultural under the act of July 26, 1866 (section 2342, Rev. Stat.).

Acting Secretary Joslyn to Commissioner McFarland, August 3, 1883. SIR: I have considered the case of William Hooper v. J. B. Fergu. son, involving a portion of the SW. of Sec. 8, T. 22 N., R. 3 E., Marysville, Cal., on appeal by Hooper from your decision of August 4, 1882.

Said quarter section was covered by Ferguson's homestead entry, No. 2950, of March 2, 1880, and on April 16, 1881, Hooper filed mineral application No. 198 covering ninety acres of it. On appeal by Ferguson you decided that since the tract had been so returned by the surveyorgeneral, it was prima facie agricultural land, and that the application should not have been received by the local officers without a hearing determining its mineral character; and therefore, and because it imperiled the homestead entry, you held the mineral application for cancellation.

From this decision Hooper appeals on several grounds, the discussion of which is reserved, except in the following instances.

He alleges, in the first place, that Ferguson's appeal was premature and against a mere filing of certain papers, without any decision by the local officers affecting his rights, and that therefore you were without jurisdiction over it. But it is plain that this view overlooks the sig nificance of the action taken by the local officers. On the public records the tract in contest appeared as covered by a homestead entry at date of filing the mineral application, and, under well-settled rules, such entry was a reservation of it from further entry until after the hearing above referred to. The acceptance and filing of the mineral application was the basis of the entry provided for in section 2329 Rev. Stat.; and it accordingly follows that the action appealed from, which permitted the filing without the required hearing, was equivalent to a decision that the land was open to placer entry and that without competent evidence. Ferguson's homestead claim, carefully guarded by section 2330 Rev. Stat., was thereby impaired, and it was eminently proper that he should appeal; alleging, as he did, that such facts and matters as were necessary to justify the action of the local officers were not in evidence, you had full appellate jurisdiction over it. In my judgment the excep tion is not well taken.

Appellant further alleges that it was error to hold the tract in contest as prima facie agricultural upon the report of the surveyor-general, for the reason that lands in the mineral belt of California are prima facie mineral, and that said tract, being in said belt, has not been designated and set apart as agricultural by the Secretary of the Interior, as required by section 11 of the act of July 26, 1866 (section 2342 Rev. Stat.). The exception is not well taken. By circular of January 14, 1867 (Copp's Mining Decisions, 245), the Commissioner of the General Land Office, for the purpose of enabling the Department to give effect to said section, directed surveyors to describe on their field notes, and to designate on the township plats, such lands as were clearly agricul tural; and by circular of May 16, 1868 (Ibid., 249), for the express purpose of giving effect to said section, he directed that, after the filing of said plats, "the tracts designated 'agricultural lands' may be filed upon under the homestead laws." This order, if not directly authorized or approved by the head of the Department, was subsequently ratified in

numerous cases, and in fact it was, in contemplation of law, the order of the Secretary of the Interior, upon the principle underlying the rule laid down in Wolsey v. Chapman (91 U. S,, 769), that "the acts of the heads of Departments, within the scope of their powers, are in law the acts of the President." Under said order the United States surveyor designated as agricultural T. 22 N., R. 3 E., and thereafter it was open to pre-emption and homestead entry. Subsequently, and with a view to a more accurate determination of the character of the land, said township, among others, was withdrawn from disposal as agricultural land by letter of January 22, 1872, to the local officers at Marysville, Cal. (Copp's Mining Decisions, 304), which withdrawal was revoked by circular of April 22, 1880 (Sickels' Mining Laws, 558). Said circular also directed the local officers, when such tracts were alleged to be mineral, to hold a hearing for the purpose of determining the facts, at which the burden of proof should rest on him so alleging, and such has been the rule of the Department since. Wherefore I concur in your opinion that the tract in contest was prima facie agricultural, and that its mineral character could not be duly ascertained without such hearing.

But with that part of your decision holding Hooper's application for cancellation I do not concur, for the reason that, at this stage of the case, said cancellation is not necessary to the determination of the respective rights of the parties. A hearing should have been had for the ascertainment of those rights as aforesaid, and I am of opinion that no violence will be done to the interests of either party by holding it now, pending which the entries will remain suspended.

You are therefore directed to order a hearing for the purpose of determining the character of the land covered by Hooper's claim, and of the alleged improvements on it, whereat the burden of proof shall rest upon the mineral claimant.

Your decision is modified accordingly.

Herewith are returned the papers accompanying your letter of October 28, 1882.

PRACTICE-CONSTRUCTION-BURDEN OF PROOF-RELATIVe value.

2. CALEDONIA MINING COMPANY V. ROWEN.

Rule of Practice No. 87 applies only where notice is sent through the mails from the local office.

Where the interests of the Government are involved, as in a contest concerning the character of the land, and where justice is facilitated and promoted, the Department will consider an appeal from the Commissioner's decision, although not filed within the time required by the Rules of Practice.

A rehearing will not be ordered when it appears that the evidence to be offered will be merely cumulative.

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