209. An alien, though he may not locate or enter public lands, may, until office found, hold a mining claim under possessory title as grantee of a qualified locator. Ferguson v. Neville, 61 Cal. 356. 210. After entry the Land Department does not inquire about sales of the land entered, and in this case patent is ordered issued in the name of the dead applicant. F. P. Harrison, 2 L. D. 767. 211. Where the possessory title to a mining claim becomes vested (either by location or transfer) in one who dies before applying for 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 Office, March 25, 1896, In re Broadwater Placer. 212. The heirs of a decedent who make entry must show citizenship. Gulch & Lake View Lodes, Com'r to Durango Office, Feb. 14, 1896. 213. An entry of public lands, though voidable, is nevertheless a segregation of the land covered thereby. Graham v. Hastings, etc. Ry. Co., 1 L. D. 380; F. P. Harrison, 2 L. D. 767; St. Paul, etc. R. R. Co. v. Forseth, 3 L. D. 446; St. Paul, etc. R. R. Co. v. Leech, 3 L. D. 506; Hallants v. Sullivan, 5 L. D. 115; Leary v. Manuel, 12 L. D. 345. 214. A party who is not an applicant for patent under section 2325, United States Re vised 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, United States Revised Statutes. Circular, June 8, 1883, 2 L. D. 725; Montana Co., 6 L. D. 261; Com'r to Durango Office, Dec. 8, 1891, In re Honey Comb Lode. 215. Where a locator of a mining claim conveys the same, with an agreement that he shall secure patent therefor 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. 216. An entry may be passed to patent which was made by one claiming under a deed which was in fact a mortgage, where perfect legal title has since become vested in the entryman. White Extension West Lode, 22 L. D. 677. 217. An entry of a lode and mill site, not owned in common, may be referred to the Board of Equitable Adjudication. Com'r to Secretary, Nov. 23, 1893, In re Southern Pride Lode and Mill Site. 218. Where a claim is sold on execution after application for patent has been made therefor and notice given thereof, the vendee merely takes a right to make entry of the claim if he chooses so to do, and if he allows the applicant to make entry of the claim he has no legal remedy against the entryman, who, by entry, acquired a new and further title, which had not been sold to the judgment vendee. Hamilton v. Southern Nevada M. Co., 13 Sawy. 113; 33 Fed. Rep. 562; 15 Mor. Min. Rep. 314. 219. A deed of mineral entries Nos. 1 and 2, lots 3 and 4, patented as the A. and B. claims, may, if such appears to have been the intent of the parties, be held to convey all of grantor's title to the A. and B. claims, even though the patent covered only parts thereof. Crescent M. Co. v. Wasatch M. Co., 19 Pac. Rep. 198; Jackson v. Dines, 13 Colo. 90; 21 Pac. Rep. 918. 220. A protestant against a mineral entry, who failed to file an adverse claim and who does not allege non-compliance with the law on the part of the entryman, is not entitled to appeal from the decision of the General Land Office dismissing his protest. Cedar Hill M. Co. v. Jacob Little Con. M. Co., 1 L. D. 628. 221. No part of a mineral entry can stand if based upon a false survey and publication. Gustavus Hagland, 1 L. D. 593. 222. Land to be subject to entry under the placer law must be shown to be placer mining land as a present fact. Searle Placer, 11 L. D. 441. 223. Land to be enterable under the mineral land law must be shown to contain mineral in such quantities as will render profitable the working of the claim. It must, under the placer law, contain a valuable deposit. Royal K. Placer, 13 L. D. 86. 224. The entry as a placer claim of land known to be valuable only for lodes contained is illegal, and will be canceled. Grosfield v. Nigger Hill Cons. M. Co., 14 L. D. 685. 225. Entry of a conflict embraced in a prior entry is irregular, but may stand on cancellation of the prior entry. Moss Rose Lode, 11 L. D. 120. acre tract remaining, or to make an expenditure of $500 thereon, as the location of the claim without such discovery was invalid. Departmental decision of May 20, 1896, In re Eliza Sweeney. 234. Where the discovery and improvements are excluded from the entry of a min 226. Entry should not be allowed when it is shown that the lode is not embraced within claimed ground, as the right to surface ground depends on possession of a lode therein. Branagan v. Dulaney, 2 L. D. 744. 227. Relinquishment of a part of a claiming claim, the entry will be canceled unless embraced in a mineral entry must be acccmpanied by an abstract of title showing title at date of relinquishment to be in the one executing it. Ground Hog Lode, 20 L. D. 211; Com'r to Pueblo Office, Sept. 30, 1895, In re Lookout and other Lodes. 228. The application for patent for a mining claim and the exclusion from the entry thereof of a part of the claim renders the excluded portion vacant public land, viz., such exclusion operates, pro tanto, as an abandonment. Adams Lode, 16 L. D. 233. 229. Exclusion from entry and patent of a mining claim, of conflict with another claim, does not preclude the patentee from holding the excluded ground under his possessory title and raises no presumption against such title. Van Zandt v. Argentine M. Co., 2 McCrary, 159; 4 Mor. Min. Rep. 441. 230. A mineral applicant for patent may exclude from his entry conflicts with other claims without waiving any rights thereto. Aspen Cons. M. Co., 22 L. D. 8. 231. An applicant for a mineral patent may make entry of his claim exclusive of land covered by an adverse claim and take patent for the land not in conflict, without waiving his possessory right to the excluded portion. Black Queen Lode v. Excelsior No. 1 Lode, 22 L. D. 343. 232. Relinquishments by claimants of small isolated tracts for the sole purpose of enabling other claims otherwise invalid to be made is wrong, and will not be encouraged. If no adverse claim shall have been filed, or, if filed, judgment is rendered in defendant's favor, he will be assumed to own the whole tract applied for, and final papers will be issued accordingly. Late Acquisition Cons. M. Co., 18 C. L. O. 208. it is shown that mineral has been discovered and the requisite expenditure made upon claimed ground. A reconveyance by another lode claimant of the patented excluded ground will not be accepted, in such a case, as reinvesting title to the same in the government for the purpose of patenting it with the claim last entered. Winter Lode, 22 L. D. 362. 235. Patent will not issue for a lode mining claim where the land on which are situate the discovery and improvements is excluded from the entry, unless a discovery and the required expenditure are shown to have been made on entered ground. Antediluvian Lode and Mill Site, 8 L. D. 602; Thomas J. Laney, 9 L. D. 83; Edward W. Williams, 20 L. D. 458. 236. To be enterable under the first clause of section 2337, United States Revised Statutes, a mill site must be: (1) non-mineral; (2) non-contiguous to the lode, and (3) used or occupied by the owner of the lode for mining or milling purposes. Gold Springs & Denver City Mill Site, 13 L. D. 175. 237. The use, in the mine, of timber growing upon land is not such a use of the land as will warrant entry thereof as a mill site appurtenant to the mine under the first clause of section 2337, United States Revised Statutes. Two Sisters Lode and Mill Site, 7 L. D. 557. 238. The fact that land has upon it "a dam on Middle Percha creek with a cribbing on each side to keep embankment in place; a water box with screen; a pipe line extended thence to smelter reservoir," etc., will not entitle the claimant to enter the same as a mill site, the use of water taken from the land not being a use of the land. Iron King Mine and Mill Site, 9 L. D., 201. 239. The mere use of water from springs on the land in connection with the working of a lode claim is not such a use and occupancy of the land as will render it subject to entry as a mill site. Charles Lennig, 5 L. D. 190; Cyprus Mill Site, 6 L. D. 706. 233. Where a mineral entry of a placer claim taken by legal subdivisions has been canceled as to that portion of the claim on which the discovery and improvements are situate, no further time will be allowed within 240. The use of land as a site for pumping which to make a discovery on every twenty- I works for supplying water to a mining claim is such a use as will allow entry of the land | Hartman v. Smith, 7 Mont. 19; 14 Pac. Rep. as an adjunct to a lode claim under the first 648. clause of section 2337, United States Revised Statutes. Sierra Grande M. Co. v. Crawford, 11 L. D. 338. 241. An entry of a mill site as appurtenant to a lode claim will be canceled on its being shown that the mill site is not so used, but is entered for the benefit of another to be used for other than mining purposes. Syndicate Mill Site, 11 L. D. 561. 242. The erection and use on a mill site of dwelling-houses for the use of miners working on the lode claim applied for in connection therewith is such a use and occupancy as will justify entry of the land under, the first clause of section 2337, United States Revised Statutes. Satisfaction Extension Mill Site, 14 L. D. 173. 248. Stone valuable only for building purposes is not subject to entry under the provisions of Chapter 6, Title XXXII, United States Revised Statutes (but see act Aug. 4, 1892, 27 Stat. 348). Conlin v. Kelly, 12 L. D. 1. 249. A mineral entry of land principally valuable for ordinary building stone, allowed under the then existing practice (prior to Departmental decision, In re Conlin v. Kelly, 12 L. D. 1), excepts the lands so entered from the operation of a subsequent grant to a State for school purposes and may be passed to patent. Paris Gibson, 21 L. D. 327. 250. The act of August 4, 1892 (27 Stat. 348), authorizes a placer entry of land chiefly valuable for building stone. Minnekahta Stone Mine, 15 L. D. 256. 243. A tract on which are situate a house 251. Where a mineral entry has been alused as an office, and residence of the superin-lowed after due notice of application for pattendent of the mine, a stable, a railroad side-ent, a protestant who admits the sufficiency track, and a store-house, all used in connec-of such notice appears solely as amicus curiæ, tion with a patented lode claim, is so used and occupied as to be enterable as a mill site under the first clause of section 2337, United States Revised Statutes. Eclipse Mill Site, 22 L. D. 496. 244. A tract of land claimed and used for mining and milling purposes in connection with a patented lode claim may be entered under the first clause of section 2337, United States Revised Statutes, viz., the mill site need not be applied for and entered with the lode claim. Eclipse Mill Site, 22 L. D. 496; Departmental decision of May 23, 1896, In re Idaho Mill Site. 245. The right to make entry of a mill site under the second clause of section 2337, United States Revised Statutes, depends upon the existence thereon of a quartz mill or reduction works. Charles Lennig, 5 L. D. 190; Cyprus Mill Site, 6 L. D. 706; Two Sisters Lode and Mill Site, 7 L. D. 557; Le Neve Mill Site, 9 L. D. 460; Hecla Cons. M. Co., 12 L. D. 75. 246. The fact that land is covered by a water right, held under local laws, will not bar entry thereof as a mill site. Charles Lennig, 5 L. D. 190. without right of appeal from a decision of the General Land Office dismissing his protest. Bright v. Elkhorn M. Co., 8 L. D. 122. 252. A protestant appearing merely as amicus curiæ has no right of appeal; but where a protestant appears after entry and an investigation is ordered, at which he undertakes to sustain the allegations made in the protest, and where, if the entry should be canceled, he would have an equal right with other parties to enter the land, he should be granted the full rights of a party litigant. Martin v. Granite Mtn. M. Co., 15 C. L. O. 50. 253. A certificate of purchase of mineral land at the local land office, if no adverse claim is filed, and the entry is not disaffirmed by the Land Department, passes the right of the government, and as against any other party is equivalent to a patent. The land thereby ceases to be the subject of sale by the government, which thereafter holds the legal title in trust for the holder of the certificate. Deffeback v. Hawke, 115 U. S. 392. 254. The Land Department has authority to order a hearing to determine whether there has been due compliance with the mining law, though the charge is not made until 247. A mill site is a mining claim or pos- after entry. An original locator will not be session under section 2392, United States Re-heard to question the validity of a relocation vised Statutes, and is excepted from a town in a proceeding instituted to determine site patent if located prior to town site entry. whether said locator had complied with the law in the matter of the annual statutory | money, and making of a certain expenditure. expenditure. Sweeney v. Wilson, 10 L. D. 157. Renshaw v. Switzer, 6 Mont. 464; 13 Pac. Rep. 255. Where a special agent reports non- 127; 15 Mor. Min. Rep. 345. compliance with the mining law in the matter of expenditures, notice should be given the mining claimants that a hearing will be had, and the special agent should be directed to produce witnesses to sustain his report. Franklin L. Bush, 11 C. L. O. 34. 256. Instead of canceling a mineral entry for insufficient proof the claimant should be allowed opportunity to submit supplementary proof. William G. Pell, 4 L. D. 160. 257. The invalidity of an entry as to one tract is of no effect on the entry as to the remainder of the land entered. Cornelius v. Kessel, 128 U. S. 456. 258. Where the entry was allowed on insufficient evidence as to the character of the land and the requisite expenditure thereon, supplementary proof may be submitted in the absence of protest or adverse claim. James D. Rankin, 7 L. D. 411. 259. After making a mineral entry, the legal presumption is in favor of all requisite proceedings antecedent thereto. Louisville Lode, 1 L. D. 548. 260. The burden of proof is upon one attacking the validity of a regularly allowed mineral entry. Tangerman v. Aurora Hill M. Co., 9 L. D. 538. 261. The allowance of a mineral entry on land returned by the Surveyor General as agricultural overcomes the presumption raised by such return, and the burden of proof is thereafter upon one alleging the non-mineral character of the land. Walton v. Batten, 14 L. D. 54. 262. The allowance of mineral entry is an adjudication of the mineral character of the land entered, and the burden of proof is thereafter upon one who alleges its non-mineral character. Johns v. Marsh, 15 L. D. 196. 263. Where a mineral entry has been allowed on satisfactory evidence of compliance with the law, the burden is upon a contestant to show non-compliance. Hargrove v. Robertson, 15 L. D. 499. 264. The discovery and location of a claim in pursuance of the law is equivalent to a contract of sale and purchase, where the purchaser is let into possession and becomes entitled to a deed upon payment of purchase 265. The fact that a location of a mining claim may have been defective, in that it was not made in accordance with the mining district rules as to width of the claim and the record of location notice, is rendered immaterial by the repeal and annulment of such rules prior to allowance of mineral entry. Walter C. Childs, 10 L. D. 173. 266. Railroad companies claiming under grants of non-mineral lands are not entitled to be notified of the allowance or approval of mineral entries within the limits of the grant prior to selection of the land by the companies. 691. Northern Pacific R. R. Co., 13 L. D. I. THE STATUTE. (See sec. 2325, U. S. Rev. Stat., p. 137.) AN ACT making appropriations for sundry civil expenses of the Government for the fiscal year ending June thirtieth, eighteen hundred and ninety-one, and for other purposes. * * * * Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, No person who shall, after the passage of this act, enter upon any of the public lands with a view to occupation, entry, or settlement under any of the land laws shall be permitted to acquire title to more than three hundred and twenty acres in the aggregate, under all of said laws, but this limitation shall not operate to curtail the right of any person who has heretofore made entry or settlement on the public lands, or whose occupation, entry, or settlement is validated by this act: Provided, That in all patents for lands hereafter taken up under any of the land laws of the United States or on entries or claims validated by this act, west of the one | hundredth meridian it shall be expressed that there is reserved from the lands in said patent described a right of way thereon for ditches or canals constructed by the authority of the United States. * * * * Approved August 30, 1890. (26 Stat. 371.) The above restriction as to entry of more than three hundred and twenty acres does not apply to mineral land entries. Sec. 17, Act approved March 3, 1891. (26 Stat. 1095.) 2. An adverse suit is to determine who is 3. The object and purpose of an action under section 2326, United States Revised Statutes, is not only to settle the controversy as between the claimants, but for the information of the officers of the Land Department; and to recover, either party must show by proof the right to a patent. An admission of material facts by the opposing party will not avail, but the facts must be found. Rosenthal v. Ives, 2 Idaho, 244; 12 Pac. Rep. 904; 15 Mor. Min. Rep. 324. 4. In an adverse suit each party must prove his right to a patent by a compliance with the statutes, State and Federal, and miners' rules and regulations in force relative to location, in order to recover a judgment for the ground in controversy. Becker v. Pugh, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304. (Second trial, 17 Colo. 243; 29 Pac. Rep. 173.) tled to judgment unless he shows himself to be entitled to a patent by virtue of a compliance with the mining laws. If neither party establishes such a right, the jury must so find, and proceedings in the land office will be stayed. McGinnis v. Egbert, 8 Colo. 41; 5 Pac. Rep. 653; 15 Mor. Min. Rep. 329. 5. Neither party to an adverse suit is enti 6. The successful party to an adverse suit is entitled to a patent, the object of the suit being the information of the Land Department. McGinnis v. Egbert, 8 Colo. 41; 5 Pac. Rep. 653; 15 Mor. Min. Rep. 329. 7. The fact of an adverse claimant obtaining judgment in court in his favor does not necessarily entitle him to a patent. Antelope Lode, 2 C. L. O. 2. 8. On adverse suit the court has to deter entitled to a patent to the disputed ground. mine only the right of possession, not the right of either party to a patent. Doe v. Waterloo M. Co., 70 Fed. Rep. 455. 9. The patentee of a mining claim is not obliged to file an adverse claim against a second application for a conflicting claim. Mantle v. Noyes, 5 Mont. 274; 5 Pac. Rep. 856; 15 Mor. Min. Rep. 611. See S. C., 127 U. S. 348. Jackson v. Roby, 109 U. S. 440; Wolverton v. Nichols, 119 U. S. 485. (See 2 Pac. Rep. 308; 15 Mor. Min. Rep. 309.) Waterloo M. Co. v. Doe, 56 Fed. Rep. 685; Le Doon v. Tesh, 68 Cal. 43; 8 Pac. Rep. 621; McGinnis v. Egbert, 8 Colo. 41; 5 Pac. Rep. 653; 15 Mor. Min. Rep. 329; Becker v. Pugh, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304. (Second trial, 17 Colo. 243; 29 Pac. Rep. 173.) Manning v. 10. When application for patent is made Strehlow, 11 Colo. 451; 18 Pac. Rep. 625; for a lode claim embraced within a patented Thomas v. Chisholm, 13 Colo. 105; 21 Pac. town site, the town site claimants should Rep. 1019; Seymour v. Fisher, 16 Colo. 188; 27 protect any rights they may have by filing Pac. Rep. 240; Rosenthal v. Ives, 2 Idaho, 244; an adverse claim and securing a judicial de12 Pac. Rep. 904; 15 Mor. Min. Rep. 324; Burke termination thereof. If they fail so to do the ▼. McDonald, 2 Idaho, 310; 13 Pac. Rep. 351. | United States will not bring suit to vacate |