37 Fed. Rep. 36; Strasburger v. Beecher, 44 Fed. Rep. 213; Jackson v. Roby, 109 U. S. 441; Wolverton v. Nichols, 119 U. S. 485; 2 Pac. Rep. 308; 15 Mor. Min. Rep. 309; Chambers v. Harrington, 111 U. S. 350; Doe v. Waterloo M. Co., 43 Fed. Rep. 219.

203. The mere fact that an ordinary suit in ejectment, to try title, involves title to a mining claim, does not make it subject to removal from a State to a United States court on the ground that it involves a construction of Federal law. Construction of law is not "involved" when the law has been construed by the United States Supreme Court. Inez M. Co. v. Kinney, 39 Fed. Rep. 832.

204. The mere fact that a suit involves proof and construction of local mining laws, rules and regulations will not justify the removal of the case to a Federal court as a case arising under the laws of the United States. Trafton v. Nougues, 4 Sawy. 178.

205. The decision of a State court as to what constitutes the commencement of a suit in that court, not presenting a Federal question, is not reviewable before the United States Supreme Court. Richmond M. Co. v. Rose, 114 U. S. 576.

206. What constitutes the commencement of suit upon an adverse claim is a matter to be determined by the law of the State. In Nevada suit is begun by filing of a complaint. Richmond M. Co. v. Rose, 114 U. S. 576.

207. Under the New Mexican statute providing that "All suits at law in the district courts shall be commenced by filing a decla

no summons issued. Richmond M. Co. v. Rose, 17 Nev. 25; 27 Pac. Rep. 1105; 2 Colo. Law Rep. 7; 114 U. S. 576.

210. An adverse claimant who relies upon the United States mail in commencing suit must abide the consequences should delay ensue through misfortune or accident. Pride of the West Mine, 4 C. L. O. 34.

211. Suit on an adverse must be commenced within thirty days from filing adverse claim, or the adverse claim will be held to have been waived. Bodie T. & M. Co. v. Bechtel Cons. M. Co., 1 L. D. 584; Great Eastern M. Co. v. Esmeralda M. Co., 2 L. D. 704; Downey v. Rogers, 2 L. D. 707; Branagan v. Dulaney, 2 L. D. 744; Southwestern M. Co. v. Gettysburg Lode, 4 L. D. 271.

212. Suit must be commenced upon an adverse claim within thirty days from date of filing of the adverse claim in the land office, and the running of said time is not stayed by a decision of the local office dismissing the adverse claim, and an appeal from said decision by the adverse claimant. Scott v. Maloney, 22 L. D. 274.

213. 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 ap plication 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.

208. In determining whether an adverse judicial proceeding has been instituted within the statutory period, the Department will not undertake to review an order of a court of competent jurisdiction recognizing the initiation of such proceedings within said period while the suit so begun is pending in said court.

Catron v. Lewishon, 23 L. D. 20.

209. The filing of a declaration is the beginning of suit, though no fees be paid and

165.

215. As in South Dakota an action is begun by service of summons, if this is not done within thirty days from filing of adverse in the local land office, the adverse suit will not be considered as commenced within the time allowed by law. Mars v. Oro Fino M. Co., 65 N. W. Rep. 19.

216. When defendants demur, answer and go to trial, it is then too late to raise the objection that the complaint was not filed within the time prescribed by the statute. Richmond M. Co. v. Rose, 17 Nev. 25; 27 Pac. Rep. 1105; 2 Colo. Law Rep. 7; 114 U. S. 576.

217. The failure to commence suit through the ill-advised or corrupt and dishonest action of adverse claimant's attorney cannot be redressed by the Land Department. Pride of the West Mine, 4 C. L. O. 34.

218. An adverse claimant who fails to institute suit thereby waives the right to set up before the Land Department matters properly determinable in court on an adverse suit. Southwestern M. Co. v. Gettysburg Lode, 4 L. D. 271.

219. An adverse suit not brought within thirty days after filing of the adverse claim in the land office may be dismissed in court. But the motion to dismiss must be made in the trial court, and not on appeal. Marshall S. M. Co. v. Kirtley, 12 Colo. 410; 21 Pac. Rep.

492.

220. Where a second suit is commenced after the expiration of thirty days from date of filing of the adverse claim in the land office, the adverse claim will be treated as a protest. Boston Hydr. G. M. Co. v. Eagle Copper & S. M. Co., Sickel's Min. Dec. 320.

221. A. filed application, and during publication B. applied for the same ground. B. is allowed to begin suit within thirty days as on an adverse, because he was misled by the error of the local land office in receiving and filing his application. Hall v. Street, 3 L. D. 40.

222. In the absence of proof to the contrary, it will be presumed that suit was begun in time on an adverse claim. Temple v. Doolittle, Secretary, Oct. 12, 1882.

223. The question of whether or not an adverse suit has been prosecuted with reasonable diligence is one to be determined, not by the Land Department, but by the court having jurisdiction over the suit. Rose v. Richmond M. Co., 17 Nev. 25; 27 Pac. Rep. 1105; 2 Colo. Law Rep. 7; 114 U. S. 576; Iowa M. Co. v. Bonanza M. Co., Sickel's Min. Dec. 288; Copp's Min. Lands, 243; 6 C. L. O. 75; Moffat v. Compromise Lode, 8 C. L. O. 54; J. S. Wallace, 1 L. D. 582; De Garcia v. Eaton, 22 L. D.

16.

224. If the defendant thinks a suit based upon an adverse claim has not been prosecuted with reasonable diligence, he should move the court to dismiss the case for want of prosecution, and, if the motion is granted, cause the judgment to be certified to the General Land Office. Iowa M. Co. v. Bonanza M. Co., Sickel's Min. Dec. 288; 6 C. L. O. 75.

225. The provisions of the law for the adjudication of adverse claims do not comtemplate that the controversy shall be indefinitely postponed upon the simple filing of a complaint. It must be prosecuted with due diligence. Lonergan v. Eddy, Sickel's Min. Dec. 291; 7 C. L. O. 82.

226. A suit decided by the district and supreme courts of a State, as to the right of possession, is one which has finally been adjudicated by the courts of competent jurisdiction, and an appeal to the Supreme Court of the United States should not longer delay proceedings before the Land Department. Bullion M. Co. v. 420 Mining Co., 2 C. L. O. 5.

227. Failure to prosecute the suit brought on an adverse claim is a waiver of right. Nichols v. Becker, 11 L. D. 8; Nettie Lode v. Texas Lode, 14 L. D. 180; Iowa M. Co. v. Bonanza M. Co., Sickel's Min. Dec. 288; 6 C. L O. 75.

228. The voluntary dismissal of a suit based on an adverse claim is an abandonment of such claim. Monroe Lode, 4 L. D. 273; Caledonia G. M. Co., 12 C. L. O. 264.

229. A patent may issue for a mining claim, where a waiver of adverse claim is filed in the land office, without requiring evidence of the disposition of the suit instituted on the adverse claim. St. Lawrence M. Co. v. Albion Cons. M. Co., 4 L. D. 117.

230. Relinquishment of the conflict by the applicant for patent, made after the suit is commenced, is of no effect. (Regulations, par. 91.) Contra, Com'r to Leadville Office, Feb. 24, 1887, In re Jamie Lee Lode.

231. Relinquishment by the applicant for patent of the land originally in conflict does not authorize the Land Department in reassuming jurisdiction of the case during the pendency of judicial proceedings by an adverse claimant, who has been permitted in such proceedings to amend so as to embrace a larger quantity of land than was included in the original adverse. Jamie Lee Lode v. Little Forepaugh Lode, 11 L. D. 391.

232. A waiver of adverse suit by the adverse claimant, to be effective, must be submitted to the court and the suit dismissed. St. Lawrence M. Co. v. Albion M. Co., 10 C. L. O. 51. (Reversed, S. C., 4 L. D. 117–376.)

233. A waiver of an adverse claim is effective when filed in the local land office, without reference to pending judicial pro

234. An application for patent will be rejected where it appears that a previous application for the same premises has been filed and withdrawn because of pendency of a suit in court commenced by an adverse claimant. Brown v. Lewis, 1 C. L. O. 50.

235. No action can be taken in the Land Department on a mineral application during pendency of adverse proceedings. Jamie Lee Lode v. Little Forepaugh Lode, 11 L. D. 391; C. T. Wheeler, 7 C. L. O. 130.

236. A motion to dismiss an application for patent will not be entertained prior to disposition of adverse proceedings duly initiated and pending in the courts. Iron Silver M. Co. v. Mike & Starr M. Co., 6 L. D. 533; Solitaire M. & M. Co. v. Sigafus, 10 L. D. 270. 237. Where suit was duly instituted on an

706.

241. No abstract was filed during the period of publication, and no plat was filed | during that time. An abstract was afterward filed and an unofficial plat. Suit was commenced. Proceedings were thereupon suspended in the Land Department. Com'r to Sacramento Land Office, Jan. 23, 1893, In re Evening Star Placer.

242. The grantee of an applicant for patent, against whom an adverse suit is pending, takes pendente lite even though no notice of lis pendens is filed, as publication of notice of application is process to bring all adverse claimants into court. People ex rel. Darby v. District Court, 19 Colo. 343.

243. An entry should not be allowed pending suit based on an adverse claim against the application for patent. Brown v. Bond, 11 L. D. 150; Jamie Lee Lode v. Little Fore

by the adverse claimant for the same ground has been received and duly adversed by the original applicant, and suit commenced, the Land Department has jurisdiction to dismiss the second application. Great Eastern M. Co. v. Esmeralda M. Co., 2 L. D. 704. The Department will not dismiss the second application while one or both suits are pending. Miner v. Marriott, 2 L. D. 712.

238. While a suit brought under the provisions of section 2326, United Stated Revised Statutes, is pending undetermined in court, it is not for the Land Department to decide whether or not suit has been prosecuted with reasonable diligence; and a patent issued by the Land Department during the pendency of such a suit involving the land is issued without authority of law, is void, and may be attacked collaterally in a court of law. Richmond M. Co. v. Rose, 114 U. S. 576. See S. C., 17 Nev. 25; 2 Colo. Law Rep. 7; 25 Pac. Rep.

1105.

239. Though the adverse claim was irregular and defective, if suit has been commenced thereon, proceedings will be stayed before the Land Department. Secretary, Feb. 19, 1890; Reed v. Hoyt, 1 L. D. 603.

240. Although an adverse claim was defective in that it was sworn to (before the Act of April 26, 1882, 22 Stats. 49) by the agent of the adverse claimants, action will be suspended by the Land Department if suit has been in

M. Co. v. Rose, 114 U. S. 576.)

244. Where two co-owners of a mining claim file an adverse against an application for patent, and institute separate suits thereon, in different courts, the Land Department will not allow entry upon the application inclusive of the conflict, during the pendency of either of said suits. Black Queen Lode v.

Excelsior No. 1 Lode, 22 L. D. 343.

245. Entry should not be allowed where the claim applied for is involved in a pending suit to determine the right of possession thereto, instituted prior to publication of notice of application for patent. If on said suit it is adjudged that the applicant is not entitled to the possession of a part of the claim, he will not be allowed to enter such part. Northwestern Lode & Mill Site Co., 8 L. D. 437.

246. An entry will be canceled if the adverse suit is still pending. Iola Lode, 1 L. D. 539; Myers v. Hyman, 7 L. D. 83. (Revoked, 7 L. D. 336.)

247. An entry allowed during pendency of an adverse suit may be permitted to stand upon the withdrawal of the adverse claim. Gunnison Crystal M. Co., 2 L. D. 722; Meyers v. Hyman (on review), 7 L. D. 336.

248. An entry prematurely allowed while suit based on an adverse claim is pending will remain suspended pending final disposition of the suit. Com'r to Lake City Office, Dec. 6, 1887.

249. An adverse claimant whose adverse suit has been dismissed cannot complain of the fact that entry was made and patent issued for the claim applied for during pendency of such suit, and the validity of the patent is not affected by such irregularity in the allowance of entry and issuance of patent. Deno v. Griffin, 20 Nev. 249; 20 Pac. Rep. 308.

250. An adverse claimant cannot apply for conflicting ground pending suit, but if such application is filed, and suit is decided in his favor, the irregularity may be waived. Great Eastern M. Co. v. Esmeralda M. Co., 2 L. D. 704; Gunnison Crystal M. Co., 2 L. D. 722.

251. An entry regularly allowed, on dismissal of suit based on an adverse claim was properly canceled on reinstatement of the suit by order of the court. Marshall S. M. Co., Secretary, April 30, 1881.

252. An entry allowed after dismissal of an adverse suit is no bar to the reinstatement of such suit. McEvoy v. Hyman, 25 Fed. Rep. 539.

253. Mineral entry should be allowed only on proof that suit had not been commenced within thirty days after filing of the adverse claim. Halsey v. Hewitt, Sickel's Min. Dec. 238; 5 C. L. O. 162.

254. A. filed application; B. subsequently filed application for part of same ground, and adversed A. and commenced suit; before judgment (which was in B.'s favor) he (B.) made mineral entry. In view of judgment, and A.'s acquiescence therein, the question is between B. and the government, and the irregularity in that case may be waived. Gunnison Crystal M. Co., 2 L. D. 722.

255. If a suit to determine the right of possession of 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 and Mill Site Co., 8 L. D. 437; Shoo Fly Lode v. Mono Lode, 1 C. L. O. 135.

256. The pendency of a suit brought by the applicant against the adverse claimant does not excuse compliance with the law on the part of such adverse claimant. Bullion M. Co. v. 420 Mining Co., 2 C. L. O. 5.

257. Adverse suit should be brought by the heirs, not by the administrator of deceased. Keeler v. Trueman, 15 Colo. 143; 25 Pac. Rep. 311.

should commence the suit, except in cases 258. The party who sets up the adverse where the adverse claimant is in possession of the premises. Becker v. Central City Town Site, Sickel's Min. Dec. 302; 2 C. L. O. 98.

259. An adverse claim will not be dismissed for technical defects where suit has been begun thereon. Robinson v. Mayger, 1 L. D. 538; Reed v. Hoyt, 1 L. D. 603.

260. The merits of an adverse claim properly presented is not a proper subject of consideration by the Land Department, even though, on the face of the adverse filed in the local office, the adverse claimant appears to have no case. Bay State G. M. Co. v. Trevillion, 10 L. D. 194.

261. When the case is properly in court, record evidence in the land office, going to the merits thereof, cannot be considered to destroy the prima facie sufficiency of the adverse claim. Moffat v. Compromise Lode, 8 C. L. O. 54.

262. Where suit has been commenced to determine the right of possession, the only question that can arise in the land office is whether the adverse claimant has so complied with the law as to bring his case within it. Chambers v. Pitts, Sickel's Min. Dec. 293.

263. During pendency of an adverse suit, action on the merits of the case will not be taken by the land office. Ovens v. Stephens, 2 L. D. 699: Moffat v. Compromise Lode, 8 C. L. O. 54; Iola Lode, 1 L. D. 539. Contra, Higgins v. John G. M. Co., 14 C. L. O. 238.

264. The courts are to decide all questions as to the relative rights of contesting claimants. Eldred v. Lasey, Sickel's Min. Dec. 284; Bodie T. & M. Co. v. Bechtel Cons. M. Co., 1

L. D. 584.

265. The question of the jurisdiction of the court must be pleaded in court, and should not be decided in the land office. Nevada Reservoir Ditch Co. v. Rogers, Sickel's Min. Dec. 298.

266. The jurisdiction originally assumed by the courts is now recognized by the statute. Bodie T. & M. Co. v. Bechtel Cons. M. Co., 1 L. D. 584.

267. Questions of possessory rights must be settled in court. Orient Lode, Sickel's Min. Dec. 104.

268. Adverse claims to the possessory title to mining claims may be adjudicated only in a court of competent jurisdiction. Frederick A. Williams, 17 L. D. 282.

269. "The only place in which controversies between conflicting mineral claimants or adverse claimants can be heard is a court of competent jurisdiction." Bodie T. & M. Co. v. Bechtel Cons. M. Co., 1 L. D. 584.

270. All questions of location and maintenance thereof involved in decision of adverse claims are to be decided by the courts. Ovens v. Stephens, 2 L. D. 699; Branagan v. Dulaney, 2 L. D. 744; Southwestern M. Co. v. Gettysburg Lode, 4 L. D. 271; Bay State G. M. Co. v. Trevillion, 10 L. D. 194.

271. The Land Department has no jurisdiction to determine or pass upon controversies between adverse claimants as to the right of possession of a mining claim, or upon any question as to the priority of such right. Bright v. Elkhorn M. Co., 8 L. D. 122.

272. The date of location by the adverse claimant, and the competency of a corporation under the State laws to make such location, are questions of title and properly matters for judicial determination. State G. M. Co. v. Trevillion, 10 L. D. 194.

Bay

273. "The Executive Department has no jurisdiction of adverse mineral claims, which under the law, are adjudicated exclusively by the courts." Waterhouse v. Scott, 13 L. D. 718.

274. Where a court has jurisdiction, it has a right to decide every question which occurs in the case. Elliott v. Piersall, 1 Pet. 340; Iowa M. Co. v. Bonanza M. Co., Sickel's Min. Dec. 288; 6 C. L. O. 75.

275. As the courts have exclusive jurisdiction over suits, error can only be corrected by the proper appellate tribunal. Iola Lode, 1 L. D. 539.

276. The validity of a placer patent with which a lode conflicts is a matter for the courts to determine, not for the Land Department. Pikes Peak Lode, 10 L. D. 200. Contra, South Star Lode, 20 L. D. 204.

must be based upon an adverse claim filed during the sixty days of publication of notice of application for patent, and must be commenced within thirty days after the filing of such adverse. Nettie Lode v. Texas Lode, 14 L. D. 180.

278. Action of the Department on an application for patent cannot be controlled by judicial proceedings instituted outside of the authority of section 2326, United States ReBecker, 11 L. D. 8. vised Statutes. Nichols v.

279. An adverse claimant who dismisses his suit cannot delay an application for patent by commencing a second suit. Wood v. Hyde, 1 C. L. O. 66.

280. Where the first adverse suit was dismissed, a second suit commenced after the expiration of thirty days from date of filing of the adverse claim constitutes no bar to entry of the claim applied for. Boston Hydr. G. M. Co. v. Eagle Copper & S. M. Co., Sickel's Min. Dec. 320; Morse v. Streeter, Copp's Min. Dec. 127; Pride of the West Mine, 4 C. L. 0.34.

281. A second suit begun long after the thirty days cannot be considered by the General Land Office, nor allowed to retard the progress to patent of applicant's claim. Pelican Lode, Sickel's Min. Dec. 191.

282. Where suit is dismissed, the case will not be suspended in order that a second suit may be brought. Tierney v. Miller, Sickel's Min. Dec. 299; Boston Hydr. G. M. Co. v. Eagle Copper & S. M. Co., Sickel's Min. Dec. 320.

283. A suit in equity to enjoin defendants from applying for patent is not an action which can be taken notice of by the land office. Waterman v. Daley, Sickel's Min. Dec.

330.

284. A suit commenced before a court of one judicial district against a claim situate within a different district is not commenced in a court of competent jurisdiction. Nevada Reservoir Ditch Co. v. Rogers, 6 C. L. O. 105.

285. Suits on several adverses between the same parties may be combined. Marshall S. M. Co. v. Kirtley, 12 Colo. 410; 21 Pac. Rep. 492.

286. Proof of "no suit." Various court certificates required. Circular of July 6, 1883, 2 L. D. 725.