publication and posting. Cornell Lode, 6 L. posting of notice and diagram on the claim D. 717. 9. Where a mineral entry is allowed, and it is shown at a hearing that the plat and the notice of application for patent were hidden upon the claim instead of being posted in a conspicuous place thereon, the entry will be canceled without prejudice to claimant's right to begin proceedings de novo to acquire patent. Pratt v. Avery, 7 L. D. 554. 10. Posting on the claim must be in a conspicuous place. Failure to so post necessitates new notice by publication and posting. Ferguson v. Hanson, 21 L. D. 336. 11. An open shaft-house is a "conspicuous place" upon a claim for the posting of notice of application for patent. Louisville Lode, 1 L. D. 548. 12. Posting of plat and notice of application for patent upon a shaft-house is posting in a conspicuous place, as "the shaft-house is certainly the most conspicuous object on a mining claim, especially where, as in the case at bar, there were no other improvements." Gowdy v. Kismet G. M. Co., 22 L. D. 624. 13. The plat and notice of application for patent for a mining claim may be posted upon ground excluded from the application if in a conspicuous place. Hughes v. Gilbert, 2 L. D. 756. 14. A mineral entry may be referred to the Board of Equitable Adjudication, where posting of plat and notice of application for patent was not made on the claim owing to inaccessibility and danger of snow slides, but in a conspicuous place on an adjoining claim. Rowena Lode, 7 L. D. 477. 15. Only one plat is required to be made and posted on a consolidated claim. S. F. Mackie, 5 L. D. 199. 16. Although under the law and regulations notice of application for patent for a lode and mill site should be posted both on the lode and the mill site, in this particular case, in view of the extensive improvements on the mill site, the entry is passed to patent though posting was not made on the mill site. Bailey and Grand View M. & Sm. Co., 3 L. D. 386. (Modified in New York Lode & Mill Site, 5 L. D. 513, and an entry referred to the Board of Equitable Adjudication under like circumstances.) 17. Where the evidence on behalf of applicant is clear and specific as to conspicuous for the period required by law, such evidence will be deemed satisfactory even though allegations to the contrary are made by protestants. Omaha Gold M. Co., 3 C. L. O. 36. 18. Where the evidence is conflicting as to whether notice of application was conspicuously posted upon the claim, the contest will be dismissed if the contestant had actual notice through reading the published notice of application. Byrne v. Slauson, Departmental decision of January 21, 1895. 19. The period of publication within which adverse claims must be filed ceases to run against adverse claimants if the posting of notice in the land office is not continuous. Tilden v. Intervenor M. Co., 1 L. D. 572. 20. Notice of application for a mineral patent must be posted during the period of publication in the local land office of the district wherein the claim is situate, and if, during such period, the boundaries of land districts are changed, the notice must be changed, if necessary, to comply with the rule; otherwise republication and new posting will be required. Frederick A. Williams, 17 L. D. 282. 21. Where it is impossible to show positively that notice of an application for a mineral patent remained posted in the local land office during the period of publication, the affidavits of the persons who were local officers during such period, to the effect that it was their custom to post such notices during the period of publication, may be accepted as satisfactory. Departmental decision of June 13, 1896, In re S. H. Standart. 22. Proof of posting of notice of application for patent in the local land office should be furnished by the register, but, if not furnished by him, the claimant may submit evidence upon the point. Mimbres M. Co., 8 L. D. 457. 23. When the land claimed lies in two districts, notices of application should be posted in the offices in both districts, and the application for patent should be filed in the district where the principal workings are. Com'r to San Francisco Office, Nov. 12, 1875. 24. Where the notices of application for patent were sufficiently definite in the matter of description of the claim to cause an adverse claim to be filed, republication of notice will not be required because of an error in the survey of ten degrees in the course and | land in conflict is non-mineral in character, three chains in the length of the line connecting the survey of the claim with a corner of the public surveys, but the entry may be referred to the Board of Equitable Adjudication. Walter C. Childs, 10 L. D. 173. 25. A notice of application for a mineral patent that fails to connect the claim with the public surveys or a United States mineral monument is insufficient, and an entry allowed on such notice may not be referred to the Board of Equitable Adjudication in the presence of a protest of persons alleging adverse claims, but republication of notice will be required. Nil Desperandum Placer, 10 L. D. 198. 26. The legality of posting of notice of application for patent, upon which entry has been allowed, cannot be questioned in an action at law. Aurora Hill M. Co. v. 85 M. Co., 12 Sawy. 355; 34 Fed. Rep. 515; 15 Mor. Min. Rep. 581. 27. One making application for patent to mineral land is required by law to post on the premises a diagram and notice of such application. The courts will presume such notice given, which is of itself a warning to all that the parties are about applying for patent-seeking to obtain title. St. Louis Sm. & Refining Co. v. Green (Colorado), 10 C. L. O. 110. 28. Issuance of a mineral patent "is prima facie evidence that a discovery of mineral was made; that the land was properly located as mineral land; that the application for patent, the notices given by the defendants (applicants) and all other steps required by the law had been regularly taken." N. P. R. R. Co. v. Cannon, 7 U. S. App. 507. and that the lode claimant must give new notice of application for patent, the lode claimant may not allow said decision to become final, and then, by moving the reference of his entry to the Board of Equitable Adjudication, attempt indirectly to evade that portion of the decision adverse to him, while claiming its finality as against the contestant. Oscar Waller, 22 L. D. 318. APPLICATION. I. THE STATUTES. I. THE STATUTES. (See sec. 2325, U. S. Rev. Stat., p. 137.) Act of Jan. 22, 1880, sec. 1. AN ACT to amend sections twenty-three hundred and twenty-four and twenty-three hundred and twentyfive of the Revised Statutes of the United States concerning mineral lands. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section twentythree hundred and twenty-five of the Revised Statutes of the United States be amended by adding thereto the following words: "Provided, That where the claimant for a patent is not a resident of or within the land-district wherein the vein, lode, ledge, or deposit sought to be patented is located, the applica tion for patent and the affidavits required to be made in this section by the claimant for such patent may be made by his, her, or its authorized agent, where said agent is conversant with the facts sought to be established by said affidavits: And provided, That this section shall apply to all applications now pending for patents to mineral lands." (21 Stat. 61.) II. REGULATIONS. 29. Where a mineral patent issues based on an erroneous survey, a new patent in lieu thereof may not be issued without new notice 31. Accompanying the field notes so filed by publication and posting, based on a cormust be the sworn statement of the claimant rect survey, where the original survey is so that he has the possessory right to the premises therein described, in virtue of a complierroneous as not to cover any portion of the ance by himself (and by his grantors, if he claim. If such patentee refuses to surrender claims by purchase) with the mining rules, the erroneous patent, and to reconvey the regulations, and customs of the mining-disland covered thereby, suit to vacate the pat-trict, State, or Territory in which the claim ent will be recommended by the Land Department. United States v. Rumsey, 22 L. D. 101. 30. Where, on a contest between a mill site claimant and a lode claimant, the judgment of the General Land Office was that the lies, and with the mining laws of Congress; such sworn statement to narrate briefly, but as clearly as possible, the facts constituting such compliance, the origin of his possession, and the basis of his claim to a patent. 74. As a condition for the making of application for patent according to section 2325, there must be a preliminary showing of work or expenditure upon each location, either by showing the full amount sufficient to the maintenance of possession under section 2324 for the pending year; or, if there has been failure, it should be shown that work has been resumed so as to prevent relocation by adverse parties after abandonment. The "pending year" means the calendar year in which application is made, and has no reference to a showing of work at date of the final entry. 75. This preliminary showing may, where the matter is unquestioned, consist of the affidavit of two or more witnesses familiar with the facts. 93. A party who is not an applicant for patent under section 2325, Revised Statutes, or the assignee of such applicant, is not entitled to make entry under said section, and in no case will the name of such party be inserted in the certificate of entry. This regulation has no reference to proceedings under section 2326. 104. The fees payable to the register and receiver for filing and acting upon applications for mineral-land patents are five dollars to each officer, to be paid by the applicant for patent at the time of filing, and the like sum of five dollars is payable to each officer by an adverse claimant at the time of filing his adverse claim. (Sec. 2238, Rev. Stat., paragraph 9.) 105. All fees or charges under this law may be paid in United States currency. III. DECISIONS. 1. An application must be sworn to by the party making it. Jefferson M. Co. v. Pennsylvania M. Co., 1 C. L. O. 66. 2. An application for a mining claim signed by one joint owner for himself and co-claimants should be recognized as the application of all the owners; the acts of the agent are the acts of the claimants themselves. Ayers v. Daly, 3 C. L. O. 196. 3. Claimants must verify their coal declaratory statements and applications by their oaths, and they cannot delegate that duty. They can act by an agent only in the matter of filing said papers and making the necessary payments. White Oaks Improvement Co., 13 C. L. O. 159. 6. An applicant who resides in the land district, if within the district, must make affidavits. Secretary, March 2, 1880. 7. The affidavits required of an applicant for a mineral patent may not, under the act of January 22, 1880, be made by an agent if the applicant is a resident of or at date of making proof within the land district, even if the agent is the only one personally cognizant of the facts constituting compliance with the law. Rico Lode, 8 L. D. 223. 8. An application for a mineral patent may embrace any number of contiguous locations owned in common. St. Louis Smelting Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673; Good Return M. Co., 4 L. D. 221; Samuel E. Rogers, 4 L. D. 284; Champion M. Co., 4 L. D. 362; S. F. Mackie, 5 L. D. 199; William De Witt, 9 C. L. O. 34. (The above decisions overrule the Circular of June 8, 1883, and Lake Quicksilver M. Co., 2 C. L. O. 130.) Circular of March 24, 1887, under Good Return decision, 8 L. D. 505. 9. An applicant for a mincral patent must show the land claimed to contain valuable mineral and that the improvements upon the claim tend to its development. John Downs, 7 L. D. 71. 10. "The last position of the court below, that the owner of contiguous locations who seeks a patent must present a separate application for each, and obtain a separate survey, and prove that upon each the required work has been performed, is as untenable as the rulings already considered." St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673. 11. An entry based upon an application for patent to two contiguous claims not owned in common will be canceled as to one of said claims if the claimants agree as to which claim shall be eliminated; otherwise the entry will be canceled in its entirety. Com'r to Helena Office, Dec. 23, 1891, Forest and Louis G. Lodes. 4. An application for a mining claim, signed 12. The area which may be applied for as by one joint owner for himself and co-claim- a placer is unlimited if the separate locations ants, should be recognized as the application | are legal and contiguous, and the entire title of all the owners; the acts of the attorneys is in the applicant. Com'r to Smith Bros., are the acts of the claimants themselves. Ayers v. Daly, 3 C. L. O. 196. 5. Applications may be made by residents temporarily absent from the land district through an agent. Topsey Mine, 7 C. L. O. 20. Sept. 20, 1879, 7 C. L. O. 4. 13. Where several locations are embraced in one application for patent, and an expenditure of $500 is not shown on each claim, it must be made to appear that $500 has been spent for the joint benefit of the various lo- | transfer) in one who dies before applying for cations. Andromeda Lode, 13 L. D. 146. 14. A person or association may purchase as many placer locations as the local law permits and embrace them all in one claim. Com'r to H. F. Page, Nov. 21, 1874, 1 C. L. O. 134. 15. Where separate application and entries are made for the several locations surveyed as one claim, the claimant may file a new application for the consolidated claim and make a new entry therefor, nunc pro tunc. F. A. Williams, 15 L. D. 532. 16. Possessory title of an applicant for a mineral patent must be clearly shown. One claiming under a certificate of sheriff's sale of a mining claim until the execution of a sheriff's deed therefor does not hold legal title. Departmental decisions of April 24, 1896, in case of I. X. L. and Opir Quartz Mine and Mill Site. 17. Where an application for patent is filed, and mineral entry made by a mortgagee, the entry may be allowed to stand if he subsequently acquires legal title to the claim. White Extension West Lode, 22 L. D. 677. 18. Contracts for conveyance to the applicant, made before application, are sufficient basis for the application if full title was acquired before patent issued. Prince of Wales Lode, 2 C. L. O. 2. 19. An applicant for a mineral patent must clearly show possessory title to the claim applied for. Montana Co., 6 L. D. 261. 20. A mineral patent will issue only to a qualified applicant for patent or to one claiming under him by transfer before entry. J. C. Baker Fraction Placer, 23 L. D. 112. 21. Where a locator of a mining claim conveys the same with an agreement that he shall secure patent there for in his own name, he may be allowed to make application and entry for the claim, notwithstanding his lack of title. A. P. Smith, 3 L. D. 340. a patent, if application and entry are made by the heirs, devisees. executor or administrator, patent will be issued in the name of the decedent, the Land Department refusing to pass upon the title of those claiming under the decedent. Com'r to Helena Land Office, March 25, 1896, In re Broadwater Placer. 24. With an application for patent a complete abstract of title is required. Kempton Mine, 1 C. L. O. 178. 25. An application by one not the owner allowed because privity of interest was shown. A. P. Smith, 3 L. D. 340. Contra, Montana Co., 6 L. D. 261. 26. The objection that applicants did not have title at the date of application is insufficient unless clearly shown. Prince of Wales Lode, 2 C. L. O. 2. 27. An applicant who, as co-owner, relocated a mine in his own name as single proprietor, is not obliged to show title back of such relocation. Gold Dirt Lode, 10 C. L. O. 119. 28. Where an applicant for a mine claims the title through a deed signed by a party as executor of a deceased party, certified copy of letters testamentary with copy of will should be filed. N. E. Extension Yosemite Lode, 3 C. L. O. 18. 29. "A party making application for patent need not necessarily show that he owns the entire claim but in case he shows that he has a substantial interest, and his application is not adversed, he will be allowed to make entry and receive patent." Com'r to Keat and Fogg, July 11, 1892. 30. Where an application for patent is made by a trustee the citizenship of the beneficiary must be shown. Circular, July 6, 1883, 2 L. D. 725; Capricorn Placer, 10 L. D. 641. 31. An application based on title acquired through aliens will be rejected. Com'r to Roseburg Office, April 24, 1876. 32. Locators and intermediate owners other than applicants will not be presumed aliens in the absence of allegation or objection prior to issuance of patent. Wandering Boy Lode, 2 C. L. O. 2. 22. Where the office of the custodian of the records from which abstracts of title must be made is far removed from the Land Office, the abstract of title to the mining claim should not be required to be brought 33. In application for patent, proof of citdown to date of filing of application for pat-izenship is not required of the original loent. Daniel Cameron, 4 L. D. 515. 23. Where the possessory title to a mining claim becomes vested (either by location or cators or intermediate owners, but of the applicant or adverse claimant only. Cash Lode, 1 C. L. O. 98. 34. An applicant for patent as trustee for creditors is not relieved from the requirement of showing the citizenship of the beneficiaries by reason of the large number of credit- | ors. Com'r to Chas. W. O'Neil, Dec. 7, 1891. 35. Where a second application is allowed for land embraced in a prior application, by reason of the fact that the survey showed no conflict, and the second applicant, being misled by the action of the land office, failed to adverse the first application, such second application may be treated as an adverse claim (and the second applicant in this case was allowed thirty days from the decision within which to begin suit). Hall v. Street, 3 L. D. 40. 36. The filing of an application for a mineral patent segregates the land applied for and bars another application for the land. Great Eastern M. Co. v. Esmeralda M. Co., 2 L. D. 704; Gunnison Crystal M. Co., 2 L. D. 722; Hall v. Street, 3 L. D. 40; Rocky Lode, 15 L. D. 571. 37. Mere application for patent to a mining claim, not followed by notice thereof, is not a segregation of the land, and confers no right upon which others are bound to wait indefinitely. Snow Flake Lode, 4 L. D. 30. ground, the question regarding the regularity of the entry is one between the government and the entryman only. Gunnison Crystal M. Co., 2 L. D. 722. 42. An application under the mining acts takes the premises out of the operation of the local laws. Daney G. & S. M. Co. v. Sapphire S. M. Co., 2 C. L. O. 66. 43. An application for patent is such a segregation as will except land from a railroad grant. J. G. Sanders v. N. P. R. R. Co., Com'r to Helena Office, April 19, 1892; and in J. W. Sanders v. N. P. R. R. Co., even if afterward canceled because of non-mineral character of ground. Com'r to Helena Office, Sept., 1893. 44. One who has filed an application for a mining patent, but who has given no notice thereof, is bound to adverse the application of another who makes a subsequent application and gives notice thereof, and the failure so to do is a waiver of his rights. Snow Flake Lode, 4 L. D. 30. 45. Land covered by a mineral application for patent, of which notice has been given, may not be embraced in another application. Rebellion M. Co., 1 L. D. 542; Great Eastern M. Co. v. Esmeralda M. Co., 2 L. D. 704. 46. An applicant who fails to pay the gov 38. Mineral application, followed by notice, segregates the land applied for, and abandonment thereof must be shown, and the applica-ernment price or make an entry can only tion canceled, before a second application is received for the land. Andrew J. Gibson (on review), 21 L. D. 219. 39. One desiring to apply for a mineral patent for land covered by an existing mineral application may secure its cancellation by proving abandonment of the claim applied for, at a hearing to which the applicant is a party. Moylan C. Fox, 2 L. D. 766. 40. A mineral application tendered at the local land office, but not filed because of the temporary absence of the register, operates to segregate the land covered thereby and bars the subsequent filing of an application for the same land by another, pending action by the register. Rice v. Redding, 11 L. D. 213. 41. An application for mining patent duly filed in the local office should be treated as prima facie evidence of an appropriation of the premises described; but where an entry was prematurely allowed for disputed ground, while suit was pending, and the entryman subsequently recovered a judgment for the protect his interest against a second applicant by filing an adverse claim. Seaton M. Co. v. Davis, 7 C. L. O. 147. 47. Where two applications conflict, the senior may relinquish the conflict and the junior proceed with the ground in conflict. Marcus Daly, 10 C. L. O. 167. 48. Where a claim has been applied for and subsequently forfeited, a relocator who desires to apply for patent should secure the cancellation of the existing application by the Land Department. Steel v. Gold Lead G. & S. M. Co., 18 Nev. 80; 1 Pac. Rep. 448; 15 Mor. Min. Rep. 292. 49. Until an application is set aside by the Land Department, it cannot be considered as having been waived or forfeited. Daney G. & S. M. Co. v. Sapphire S. M. Co., 2 C. L. O. 66. 50. A survey under the mining act does not withdraw the land from sale unless followed by an application. William L. Campbell, 4 C. L. O. 35. |