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128. Where a mining claim has been sold on execution and thereafter application is filed by the judgment debtor, who gives due notice thereof, the claim of the vendee is adverse to that of the applicant and must be protected by adverse proceedings under section 2326 of the United States Revised Statutes, or be considered waived. Hamilton v. Southern Nevada M. Co., 13 Sawy. 113; 33 Fed. Rep. 562; 15 Mor. Min, Rep. 314.

129. Where, prior to application for patent, the owner of a mining claim conveys a part thereof as a town lot, the grantee is not bound to adverse the application, but the patentee takes title subject to a trust in favor of his grantee. Suessenbach v. First Nat. Bank, 5 Dak. 477; 41 N. W. Rep. 662.

130. Town site claimants should protect any rights they may have adverse to that of a mineral applicant by filing an adverse claim and proceeding thereon in court. Thomas Starr, 2 L. D. 759.

131. Application for a mineral patent being made for the land embraced within a prior town site patent, adverse claim should be filed or protest entered on behalf of said town site; and in the absence of such action, suit to set aside the mineral patent thus issued will not be advised. David N. Upton,

4 L. D. 555.

132. As claims located prior to 1872 were for one vein only, an application for a claim in conflict with another need not be adversed by the owner of such other claim to protect his rights, if such claints were located on different lodes. Blake v. Butte S. M. Co., 2 Utah, 54; 9 Mor. Min. Rep. 503.

133. The pendency of a suit commenced by the applicant against the adverse claimant does not excuse compliance with the act of July 26, 1866. 420 M. Co. v. Bullion M. Co., 2

C. L. O. 5.

134. An adverse claimant whose adverse suit has been dismissed will not thereafter be

heard to attack the validity of the applicant's title. Kannaugh v. Quartette M. Co., 16 Colo. 341; 27 Pac. Rep. 245.

135. Where suit is commenced after the filing of an application, by a party who subsequently filed an adverse claim in regular form, the application will remain suspended until the case is decided in court or otherwise settled. Shoo Fly Lode v. Gisborn, 1 C. L. O. 135.

136. If a suit to determine the right of possession to a mining claim is pending at the time of publication of notice of application for patent therefor by one of the parties, it is not necessary that the other party should file an adverse claim, but he need only show the pendency of said suit to procure a stay of proceedings before the land office. Northwestern Lode & Mill Site Co., 8 L. D. 437.

137. Under the act of July 26, 1866, suit should be commenced by the party who sets up the adverse claim, except where the adverse claimant is in the evident and open possession of the premises, when the applicant should commence suit. Becker v. Central City Town Site, 2 C. L. O. 98.

138. An application for a lode patent was made by A. B., the owner of a conflicting lode claim, filed an adverse claim and commenced suit thereon, alleging a prior location of the ground in conflict. A. filed an answer, but thereafter amended the survey of his claim by so shortening it as to eliminate from it all conflict with the claim of B., and was allowed to make entry in the land office of the reduced area. He then withdrew his answer, and B., on testimony submitted, secured judgment for the land in controversy. Held: (1) That the withdrawal of the answer and abandonment of the application for patent, as to the conflict did not remove the cause from the jurisdiction of the court. (2) That, in view of the first holding, the judgment is conclusive as between A. and B. of the priority of the location of B. Last Chance M. Co. v. Tyler M. Co., 157 U. S. 683. (Reversing 7 U. S. App. 463; 54 Fed. Rep. 284; 9 U. S. App. 613; 61 Fed. Rep. 557; 15 U. S. App. 456.)

139. The locator of a lode claim who fails to adverse an application for a placer claim covering the same, by such failure loses his rights to surface ground in excess of twentyfive feet on each side of the middle of his lode. Shonbar Lode, 3 L. D. 388. (Modified in

South Star Lode, 20 L. D. 204.)

140. The owner of a lode claim within a patented placer may file an application for patent, and the placer claimant may protect himself by filing an adverse claim and proceeding under the provision of section 2326, United States Revised Statutes. Robinson v. Roydor, 1 L. D. 564.

141. The owner of a lode alleged to have been known at date of application for pat

ent to a placer (since patented), covering the | must be shown what part of such expenditures or improvements is exclusively credited to the claim applied for. Nil Desperandum Placer, 10 L. D. 198.

lode, should apply for patent in the usual manner and allow the placer patentee to adverse should he desire. Olathe Placer, 4 L. D. 494.

142. One who files no adverse claim will not be allowed to question legality of applicant's title thereafter. Lee v. Stahl, 9 Colo. 208; 11 Pac. Rep. 77. (Affirmed, 13 Colo. 174; 22 Pac. Rep. 436.) Hunt v. Eureka Gulch M. Co., 14 Colo. 451; 24 Pac. Rep. 550; Seymour v. Fisher, 16 Colo. 188: 27 Pac. Rep. 240; Wight v. Dubois, 21 Fed. Rep. 693.

143. Failure to adverse a mineral application is a conclusive waiver of all adverse rights. Gwillim v. Donnellan, 115 U. S. 45; | 15 Mor. Min. Rep. 482; Steele v. Gold Lead G. & S. M. Co., 18 Nev. 80; 1 Pac. Rep. 448; 15 Mor. Min. Rep. 292; Seymour v. Fisher, 16

Colo. 188; 27 Pac. Rep. 240.

144. Failure of first locator to adverse application for patent by second locator is a waiver of priority. Eureka Cons. M. Co. v. Richmond M. Co., 4 Sawy. 302; 9 Mor. Min. Rep. 578.

145. An applicant for patent to a mining claim must, within the sixty days of publication of notice of application, file a certificate of the Surveyor General showing an expenditure of $500 upon the claim, and additional time to make the required expenditure cannot be allowed under the law. White Cloud Copper Mining Co., 22 L. D. 252.

146. An application for a mineral patent will be rejected and canceled upon the filing of a protest against the same, where the applicant failed to comply with the law by filing within the sixty days of publication the certificate of the United States Surveyor General as to statutory expenditure upon the claim. Milton v. Lamb, 22 L. D. 339.

147. Where several contiguous locations held in common are embraced in one application for patent, an expenditure of $500 upon every one of such locations need not be shown if that sum has been expended upon some one or more thereof, for the development of the consolidated claim. Good Return M. Co., 4 L. D. 221; Circular March 24, 1887, 8 L. D. 505; Nichols v. Becker, 11 L. D. 8.

148. If expenditure and improvements are made as a part of a general system of development of several neighboring claims not embraced in one application for patent, it

149. At date of filing application for mineral patent the claimant must show either that assessment work has been done for the pending year, or that work has been resumed on the claim. John Kinkaid, 5 L. D. 25.

150. An expenditure of more than $1,500 by the owners of an adjoining mine on the portion of a tunnel running through the premises embraced in an application is an expenditure under the mining law upon the claim applied for. George K. Willard, 4 C. L. O. 67.

151. Failure to perform annual expenditure upon a claim up to date of entry will subject the claim to relocation even after application for patent and publication of notice thereof. McNeil v. Pace, 3 L. D. 267; Sweeney v. Wilson, 10 L. D. 157.

152. After application for patent and publication of notice thereof, and before entry, a claim may be relocated for abandonment, and, if so relocated, the application will be canceled if no adverse claim or suit based on an adverse claim is pending against said application. Continental G. & S. M. Co. v. Gage, 10 L. D. 534.

153. An expenditure of $500 must be made by the applicants or their grantors, in case of a relocated mine, after relocation. Com'r to

W. A. Arnold, 1 C. L. O. 179.

154. A mineral application should not be received for land covered by a homestead entry, but upon its tender a hearing should be ordered to determine the character of the land. (In this case the erroneously filed application was allowed to stand pending such a hearing.) Hooper v. Ferguson, 2 L. D. 712.

155. Where land returned as agricultural in character has been embraced in a prima facie valid mineral application, the slight presumption raised by the return of the Surveyor General is overcome, and the burden of proof is on one alleging its agricultural character. N. P. R. R. Co. v. Marshall, 17 L. D. 545.

156. A hearing to determine the character of the land covered by a mineral application, and the question of compliance with the law by the applicant, may be ordered by the local

land office on protest filed. Devereux v. Hunter, 11 L. D. 214.

157. Where a mineral entry has been allowed upon a satisfactory showing of the mineral character of the land, a hearing will not be ordered on the protest of an agricultural claimant unless it be alleged that the land was agricultural in character at date of filing of mineral application for patent. Houghton v. McDermott, 15 L. D. 509.

158. The Land Department will not order a hearing to determine the character of land unless an application to enter the same is made. Central Pacific R. R. Co., 8 L. D. 30. 159. 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; Last Chance M. Co. v. Tyler M. Co., 15 U. S. App.

456.

160. An applicant for a patent to a lode claim in a patented town site may, upon making a proper showing, be allowed a hearing to prove the known existence of the lode at date of the town site entry, with a view to the recommendation by the Land Department of suit to vacate the town site patent as to the conflict. Thomas J. Laney, 9 L. D. 83.

161. "The miner having located his claim, is to be treated as an express licensee of the United States, and independent of a purchase from the government of his mining claim, he has, upon compliance with the terms of the act, a right to appropriate the minerals therein contained. A title in fee by patent is offered him, which he may at his pleasure accept or reject." There is no time prescribed within which he shall apply for a patent. Wolfley v. Lebanon M. Co., 4 Colo. 112; 13 Mor. Min. Rep.

282.

162. The owner of a mining claim need not apply for a patent therefor until he so chooses. Lebanon M. Co. v. Cons. Republican Mtn. M. Co., 6 Colo. 381.

163. An applicant for a mining claim should show compliance with the local and United States laws. Chambers v. Pitts, 3 C. L. O. 162.

164. An investigation may be had as to whether applicant has complied with the law.

Bodie T. & M. Co. v. Bechte! Cons. M. Co., 1 L. D. 584.

165. Non-contiguous tracts may not be embraced in an application for patent. Com'r to Surveyor General of California, Oct. 28, 1891.

166. To be excepted from a placer patent a lode need not have been located at date of the application for such patent. "It is enough that it be known, and in this respect, to come within the intent of the statute, it must either have been known to the applicant for the placer patent or known to the community generally, or else disclosed by workings and obvious to any one making a reasonable and fair inspection of the premises," etc. Iron Silver M. Co. v. Mike & Starr G. & S. M. Co., 143 U. S. 394; Sullivan v. Iron Silver M. Co., 143 U. S. 431; Reynolds v. Iron Silver M. Co., 116 U. S. 687; 15 Mor. Min. Rep. 591; Iron Silver M. Co. v. Reynolds, 124 U. S. 374; Noyes v. Mantle, 127 U. S. 348; 15 Mor. Min. Rep. 611.

167. A lode within the limits of a patented placer claim, to be excepted from the placer patent, must have been known to exist at date of the application for the placer patent. Mere belief in the existence of the lode is not knowledge thereof. Iron Silver M. Co. v. Reynolds, 124 U. S. 374; S. C., 116 U. S. 687 (first trial); U. S. v. Iron Silver M. Co., 128 U. S. 673.

168. A lode, to be excepted from a placer patent, must have been known to be valuable enough to justify exploitation at date of application for the placer patent. Brownfield v. Bier, 15 Mont. 403; 29 Pac. Rep. 461.

169. The title to all veins or lodes within a placer claim, known to exist at date of the placer application for patent and not included in such application, remains in the United States; and the placer patentee or his grantee have no right to dispossess any one in the peaceable possession of such vein or lode, whether the latter have any title or not. Reynolds v. Iron Silver M. Co., 116 U. S. 687; 15 Mor. Min. Rep. 591.

170. A lode within a placer claim known at date of application for placer patent is carved out of the placer patent. Dahl v. Raunheim, 132 U. S. 260.

171. To be excepted from an application for placer patent, a lode must have been known to be valuable for mineral at date of

such application. Largey v. Black, 10 L. D. 156.

172. The legal location of a placer mining claim will not prevent the location of lode claims therein by other persons at any time previous to application for patent for the placer. Aurora Lode v. Bulger Hill & Nugget Gulch Placer, 23 L. D. 95.

173. The formal location of a lode is not necessary to exclude it from a placer patent, the only requisite to such exclusion by operation of law being (1) that it was known to exist at date of application for the placer patent, and (2) that it was not included in such application. Railroad Lode v. Noyes Placer, 9 L. D. 26.

174. A lode known to exist at date of application for a placer patent, "however insignificant in value," is excepted from the placer application. Becker v. Sears, 1 L. D. 577.

175. In assuming to issue patent for a lode claim alleged to have been known at the date of application for a placer patent (since issued) covering the land, the Department will proceed with caution, and will require the known existence of such lode at that date to be clearly shown. Departmental decision of May 13, 1896, In re Lucy L. Lode.

176. In the case of a known lode in a placer claim at date of the placer application for patent, and not included in the placer application, the rule which applies to all actions to recover possession of real estate applies, namely, that the plaintiff can only recover on the strength of his own title, and not on the weakness of defendant's title. Reynolds v. Iron Silver M. Co., 116 U. S. 687; 15 Mor. Min. Rep. 591.

177. Where no vein or lode is known to exist within a placer claim at date of application for patent therefor, the patent for such placer claim shall carry all such veins or lodes within its boundaries which may be afterwards found to exist under its surface.

180. A placer applicant will not be allowed to amend his application for patent so as to embrace therein a lode discovered before the filing of such application, as the failure to embrace the same in the placer application in the first instance was, under the law, a conclusive waiver of all claims to the lode. Aurora Lode v. Bulger Hill & Nugget Gulch Placer, 23 L. D. 95.

181. The discovery, subsequent to application for a placer patent, of veins or lodes within the limits of the placer claim does not affect the rights of the placer applicant. United States v. Iron Silver M. Co., 128 U. S. 673. (Affirming S. C., 24 Fed. Rep. 568.)

182. A patent for a placer claim carries title to all veins or lodes in said claim not known at date of application for placer patent. Maggie Lode, 14 L. D. 655.

183. Proof of the location of a lode claim in a placer at the date of placer application for patent is not proof of the known existence of the lode. Butte & Boston M. Co. v. Sloan, 16 Mont. 97; 40 Pac. Rep. 217.

184. The question of whether or not a lode was known to exist within a placer claim at date of the application for placer patent is always one for an ultimate decision by the courts. After the Land Department has issued a patent for a placer claim, its jurisdiction over the land patented has ceased, and the only way the title of the patentee can be impeached is by proper proceedings in court. Iron Silver M. Co. v. Campbell, 135 U. S. 286. See South Star Lode, 20 L. D. 204.

185. The validity of a placer patent and its extent, as to conflict with a lode alleged to have been known at date of application for the placer patent, are questions that may be determined only by the courts. Pikes Peak Lode, 10 L. D. 200. (Overruled in South Star Lode, 20 L. D. 204.)

186. A judicial award of the right of possession to an adverse placer claimant as Reynolds v. Iron Silver M. Co., 116 U. S. 687; against the applicant for patent for a lode

15 Mor. Min. Rep. 591.

178. A lode, to be excepted from a placer entry, must have been known at date of the application for placer patent. War Dance Lode v. Church Placer, 1 L. D. 549.

179. A lode within a placer location belongs to the placer claimant if not known at date of placer application. Montana Copper Co. v. Dahl, 6 Mont. 131; 9 Pac. Rep. 894.

claim does not preclude inquiry by the Land Department on an allegation of the lode claimant that the placer claim as subsequently applied for embraces a known lode, where it appears that the question was not tried on the adverse suit; and if such allegation is sustained, the lode claimant may make entry of his lode together with surface ground necessary to the convenient working thereof.

Aurora Lode v. Bulger Hill & Nugget Gulch | ing claims by possessory title are required to Placer, 23 L. D. 95.

187. Where application for a placer patent was made and no adverse claim filed by a lode claimant, and subsequently the lode | claimant applied for patent and was adversed by the placer applicant, who began suit and then dismissed it, it was held that the placer applicant had abandoned the conflict and that patent for the lode claim need not be confined to twenty-five feet on each side of the middle of the lode. Monroe Lode, 4 L. D. 273.

188. An application for a lode claim in conflict with a patented placer may not be received by the Land Department as long as the placer patent remains outstanding. If the placer patent was issued upon false proof, suit to vacate the same should be brought by the United States. Pikes Peak Lode, 10 L. D. 200. (Overruled by South Star Lode, 20 L. D. 204.)

189. A vein or lode that has never been claimed; that has not been located; that has not been marked out by metes and bounds, and in which there has been no actual development, is not excepted from a placer application and patent. Iron Silver M. Co. v. Sullivan, 5 McCrary, 274.

190. Where it appears to the satisfaction of the Land Department that a lode was known at date of application for placer patent, the lode, with surface ground twenty-five feet on each side, may be patented, notwithstanding the issuance of the placer patent. Shonbar Lode, 1 L. D. 551; 3 L. D. 388. See Pikes Peak Lode, 10 L. D. 200; and South Star Lode, 20 L. D. 204.

191. The entry of a lode claim conflicting with a patented placer may be suspended to allow the lode claimant opportunity to show at a hearing that the lode was known at date of placer application, with the view to the recommendation of suit to vacate the patent for the placer claim. Rebel Lode, 12 L. D. 683. (Modified in South Star Lode, 20 L. D. 204.)

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proceed under that law. Iron Silver M. Co. v. Campbell, 135 U. S. 286.

193. On a sufficient showing by the applicant for a lode claim situate in a patented placer, a hearing may be ordered to determine whether the lode was known at the date of the placer application, with the view of recommending suit by the United States Attorney General to vacate the placer patent as to the conflict. Pikes Peak Lode, 14 L. D. 47. (Modified by South Star Lode, 20 L. D. 204.)

194. Where an applicant for a lode patent shows the lode to have been known at date of application for a patented placer, with which it conflicts, instead of incurring expense of suit, by the United States, to vacate the placer patent as to the conflict, the Land Department may accept a reconveyance of the land to the United States, which would reinvest the Department with jurisdiction over it. Juniata Lode, 13 L. D. 715.

195. One who locates a lode within a placer claim after publication of notice of placer application acquires no right to it, and (semble) he does not acquire any right if the location is made after placer application. Montana Copper Co. v. Dahl, 6 Mont. 131; 9 Pac. Rep. 894.

196. An applicant for a lode claim within a patented placer must show affirmatively the existence of such mine and its true location, and prove his possessory right and the value of work performed. Moyer v. Mike & Starr G. & S. M. Co., 10 C. L. O. 150.

197. A lode claimant who fails to adverse the application for patent to a placer claim covering his location is barred from thereafter claiming more than twenty-five feet on each side of his lode. Shonbar Lode, 1 L. D. 551; 3 L. D. 388. See South Star Lode, 20 L D. 204.

198. Section 2322 of the United States Revised Statutes applies only to lodes or veins not taken up and located so as to become the property of others. If any are not thus owned, and are known to exist, the applicant for patent for a placer claim must include them in his application or he will be deemed to have declared that he had no right to them. Sullivan v. Iron Silver M. Co., 143 U. S. 431; S. C., 109 U. S. 550.

192. Where an application for patent under the lode mining laws is made for land already patented to another under the placer mining laws, the provisions of section 2326, United States Revised Statutes, do not require the placer patentee to adverse the application of 199. The limitation of the width of a lode the lode claimant, as only those holding min- | claim within a placer, prescribed by section

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