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claimed adversely, until such judgment should become final. Section 2326 of the Revised Statutes provides as follows:

"After such judgment shall have been rendered, the party entitled to the possssion of the claim or any portion thereof may, without giving further notice, 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, and shall pay to the receiver $5 per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment-roll shall be certified by the register to the Commissioner of the General Land Office, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear from the decision of the court to rightly possess."

The contest ended in the court, each party may secure a patent for whatever portion of the lode he by such judgment is found to rightly possess. If he rightly possesses it all, he takes all; if a portion only, he takes that portion only, and his opponent takes whatever he, in like manner, is found to rightly possess. Each party must still make the proof required by law. The judgment-roll proves the right of posses. sion only.

The right of an explorer on mineral land under the provision of the statute is complete when he has discovered mineral and made a location in accordance with "regulations prescribed by law and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States." Such discovery and location gives him, as before stated, all the veins, lodes, and ledges, the apex of which can be found within the side lines of such claim. His right of possession is as complete as if he had a Government patent, provided he continues to put each year the required amount of labor or improvements thereon. If he does not care to continue to do the required amount of work on his lode each year, he may apply for a patent, and, having complied with the conditions prescribed by statute, he receives a Government title, and is thus absolved from doing further work on his claim. The Government gives the possessor of a lode his choice, to hold it without patent or to take patent. If he attempts to take a patent and finds that he is met with obstacles not anticipated, he may relinquish his attempt to secure a patent, and continue to hold by right of possession. Thus, when the applicant to enter a lode claim is met with an adverse claim, he may, if he choose so to do, avoid a legal conflict by dismissing his application for a patent, and rely on his title by possession given him by the local laws and customs, and a compliance therewith. If the adverse is for a portion only of the claim of the applicant, he may elect to take patent for the portion of his claim that is not in controversy, and he may withdraw from his application so much of his original claim as is in controversy. By such withdrawal he leaves the part of his claim claimed by others in the condition it was before his application.

He may then abandon his claim thereto, or he may litigate as to his rights with the party claiming adversely. In other words, a party owning mining property, to a part of which the title is disputed and a part is not, may, if he so chooses, make his application for so much of his property as is not in controversy; and if he makes his application and finds that his title is to be disputed as to a part, he may eliminate that portion from his application and proceed on the other.

Numerous affidavits, herein before referred to, show that no work has been performed either by Dulaney or by any one in his behalf upon the claim embraced in survey No. 204; that whatever expenditures have been made by Dulaney were upon workings upon ground lying south of the Saco claim, but not upon the premises for which patent is sought. The entry was properly canceled, because it included that portion of the lode found by the court to be the property of the Saco claimants, and because the lode is not within the original location. If Dulaney is still in possession of the lode found to be his, he can relocate the same under the provisions of the statute and renew his application, when all parties claiming adversely to him will have an opportunity to assert their claim in the proper tribunal.

Barring the herein before-mentioned propositions in which I do not concur, your decision is affirmed.

DISCOVERY.

6. JAMES MITCHELL ET AL.

Although prior to location no discovery of mineral was made within the ground claimed, upon a subsequent discovery prior to application for patent the location became good and sufficient, in the absence of any adverse rights.

Commissioner McFarland to the register and receiver at Central City, Colo., May 3, 1884.

GENTLEMEN: I have considered the application of James Mitchell and Thomas Hampton, filed by their attorneys D. K. Sickels & Co., of this city, for a review and revocation of my decision of October 29, 1883, holding for cancellation their mineral entry No. 1726, made October 4, 1881, for the Cotton lode claim.

The reasons for my said decision are fully set forth in my letter of October 29, 1883, to you in this case. Briefly stated they were: (1) That the location of said claim was, when made, invalid, being based upon an alleged discovery of a vein within ground already appropriated by the entry of another party, and subsequently patented to that party, and excluded from the application of the Cotton lode claimants; (2) that there was no proof of the discovery of a vein or lode within the ground applied for; and (3) that labor and improvements to the value of $500 were not shown to have been placed upon the claim for the devel

opment of a vein or lode within the claimed surface ground. December 6, 1883, claimants, by Hal. Aayr, their attorney, filed their application and evidence in support thereof, for a hearing to enable them to show that patent for the ground upon which their alleged discovery was made was improperly issued, and that this ground ought of right to have been free and open to exploration at the date of the Cotton claim location. The application for a hearing was denied January 9, 1884, and the conclusions reached in said decision of October 29, 1883, expressly adhered to.

January 23, 1884, notice of appeal from said decision and specifications of error were filed. March 15, 1884, claimants withdrew their appeal, without prejudice, filed application for a review as herein before noted, and several affidavits in support thereof. March 31, 1884, additional argument and affidavits and also surveyor-general's certificate showing labor and improvements to the value of $500 were filed.

Claimants undertake to show that a vein or lode was discovered within the ground claimed prior to location. I am unable, from the evidence before me, in view of the fact that claimants were fully advised by my said decision of the absence of proof upon this point, to find that a discovery within the ground claimed was made prior to location.

The evidence on file shows, however, that a vein or lode was discovered within the ground claimed prior to application for patent.

No adverse rights to said ground appear to have been asserted. When the discovery of the vein or lode within the ground claimed was made there was of record a sufficient notice to all the world of the claim of said Mitchell and Hampton to the ground applied for. In the absence of any showing to the contrary it is assumed that the boundaries of their claim were then plainly marked upon the surface thereof.

Under these circumstances it would, in my opinion, have been wholly unnecessary, after said discovery, to have again marked the boundaries and again filed notice of location of the ground applied for. The question of their right to a patent for the ground claimed is between these parties and the United States alone.

I think this case comes within the decision of the honorable Secretary in Maid of Erin Mine (Brainard's Legal Precedents, vol. 1, 478) and that upon the discovery as aforesaid the said location became good and sufficient. My said decision of October 29, 1883, is therefore revoked, and the case will proceed toward patent in its regular order.

4531 L 0- -48

LOCATION BY REGISTER-BONA-FIDE PURCHASER.

7. RUST AND CRITESER.

Without considering whether a location by a register was in violation of the circular of August 26, 1876, the entry of bona fide purchasers under the location should not be canceled.

Secretary Teller to Commissioner McFarland, May 29, 1884.

SIR: I have considered the case of mineral entry No. 36, made October 13, 1882, by John Rust and Thomas Criteser upon the "Rust and Criteser placer," embracing the E. of the SE. 4 of Sec. 6, T. 34 S., R. 6 W., Roseburg, Oreg., on appeal by Rust and Criteser, from your decision of November 23, 1883, holding their entry as to the W. of the SE. of SE. of said section for cancellation.

It appears that April 19, 1873, J. C. Fullerton was appointed receiver of the land office at Roseburg, Oreg., and still holds that office. On July 5, 1882, he located the W. of the SE. of the SE. of said section as a placer claim, and July 8, following, he sold and conveyed his right and interest therein to Rust and Criteser. You reject their entry as respects this tract, on the ground that its location by Fullerton was in violation of the regulations of your office.

Without considering your circular of August 26, 1876 (Copp., November, 1876), which prohibits registers and receivers from making entries of public land on penalty of removal from office, or whether a mineral location by one of these officers is within the prohibition of the rule, cancellation of the entry in question would be, in my opinion, manifest injustice to the entrymen. They purchased in good faith from Fullerton, for a valuable consideration, in ignorance of the rule, and have since expended more than $500 upon the claim. There is no evidence of improper conduct on their part, and Fullerton-in whose integrity I infer you confide from the fact of his retention in office since 1873states that he made the location and sale in good faith, not supposing either to be in violation of your rule. If, however, he knowingly disobeyed it and is subject to removal therefor, that fact should not affect the rights of his grantees against whom nothing appears.

I reverse your decision and allow the entry to stand subject to the further proofs you require.

VIII.-MILL SITE.

CONSTRUCTION-SEVERAL TRACTS.

J. B. HOGGIN.

Under section 2337, Rev. Stat., a mill site embraced in an application and entry for a lode claim may include such number of pieces or tracts, within the restriction of 5 acres, as may appear to be necessary to the proprietor of the lode claim for mining and milling purposes.

Secretary Teller to Commissioner McFarland, June 2, 1884.

SIR: I have considered the appeal of J. B. Haggin from your decis ion of November 17 last, in the matter of his mineral entry, No. 174, for the Mariposa quartz mine and mill sites Nos. 1 and 2, Coso mining district, Inyo County, California. For such mine and mill sites payment was made and final certificates issued to Mr. Haggin, February 7, 1883. Mill site No. 1 contains 44 acres, and No. 2 one-half of an acre.

In your said decision you hold "that the United States Statutes, and the regulations thereunder of this office, do not contemplate that more than one mill site or tract of land for milling purposes may be embraced in an application for patent for a lode claim," and therefore direct the cancellation of one of said mill-site tracts, permitting the claimant to designate which of the two he will retain. From this decision an appeal has been taken; and thus is presented for my consideration the single question whether, keeping within the restriction of 5 acres of nonmineral land, more than one mill site may be embraced in an application for a vein or lode and patented therewith.

Section 2337 of the Revised Statutes is as follows:

Where non-mineral land not contiguous to the vein or lode is used or occupied by the proprietor of such vein or lode for mining or milling purposes, such non-adjacent surface ground may be embraced and included in an application for a patent for such vein or lode, and the same may be patented therewith, subject to the same preliminary require. ments as to survey and notice as are applicable to veins or lodes; but no location hereafter made of such non-adjacent land shall exceed 5 acres, and payment for the same must be made at the same rate as fixed by this chapter for the superficies of the lode. The owner of a quartz mill or reduction works, not owning a mine in connection therewith, may also receive a patent for his mill site, as provided in this section.

Paragraph 72 of the regulations of your office, approved October 31, 1881, and referred to in your decision, is as follows:

To avail themselves of this provision of law (section 2337), parties holding the possessory right to a vein or lode, and to a piece of non-mineral land not contiguous thereto, for mining or milling purposes, not exceeding the quantity allowed for such purpose by section 2337, United States Revised Statutes, or prior laws, under which the land was appropriated, the proprietors of such vein or lode may file in the proper land office their application for a patent, under oath, in manner already set forth

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