the newspaper and proof thereof,' pending the determination of the rights of the respective parties by a court of competent jurisdiction, in a suit filed within thirty days after the filing of the adverse claim in the land office. The filing of suit within thirty days may be dispensed with, however, in a case where a suit is pending between the same parties involving the right of possession of the same ground, and an adverse claim is subsequently filed within the period of publication. But in such case it would be necessary, by appropriate amendment, to connect the pending action with the adverse proceedings.

§ 685. Exception where conflict area excluded by amendment. The land department has permitted the applicant to amend his application so as to exclude the area brought in conflict by the adverse proceedings, whereupon he was allowed to patent the remainder. This should always be allowed, so long as his discovery and the place where his labor and improvements were performed remain within the limits of the amended application; likewise if a new discovery is seasonably established.

1 Gen. L. O. Cir., June 24, 1899, par. 86.

2R. S. U. S., § 2326; Gen. L. O. Cir., supra; Richmond M. Co. v. Rose, 114 U. S. 273; St. Louis Sm. & Ref. Co. v. Kemp, 104 U. S. 636; Gwillim v. Donnellan, 115 U. S. 45; Last Chance M. Co. v. Tyler M. Co., 157 U. S. 683; Rose v. Richmond M. Co., 17 Nev. 25, 27 Pac. Rep. 1105; Deno v. Griffin, 20 Nev. 249, 20 Pac. Rep. 308; Little Forepaugh Lode, 11 L. D. 391; Eldred v. Lacey, 6 C. L. O. 34; Clipper M. Co., 22 L D. 527.

Shoo Fly, Magnolia et al. v. Mono Lode, Copp's Min. Lands, 146, 149; Swaine v. Craven, 12 L. D. 294. See Crown Point M. Co. v. Buck, 26 L. D. 348.

4 Branagan v. Dulaney, 2 L. D. 744; Last Chance v. Tyler, 157 U. S. 683. See post, § 731.

5 Last Chance M. Co. v. Tyler M. Co., supra; Tyler M. Co. v. Sweeney, 54 Fed. Rep. 284, 4 C. C. A. 329; Antediluvian Lode & Mill Site, 8 L. D. 602; Cayuga Lode, 5 L. D. 703; Lone Dane Lode, 10 L. D. 53; Spur Lode, 4 L. D. 160.

ARTICLE C.

Of the Protest, the Protestant's Rights and the Effect Thereof.

691. Protest

Nature of the proceeding - When may be made. 692. Who may protest-Co-tenant's rights and duties as to protest

and adverse.

693. The right to appeal.

694. Protest proceedings not necessarily res judicata.

§ 691. Protest-Nature of the proceeding-When may be made. At any time prior to the issuance of patent a protest against its issuance may be filed upon any ground which tends to show that the applicant for patent has failed to comply with the law,' or that the land sought to be patented is not mineral land, or vice versa in case of agricultural applicant. The protest should be upon the oath of the person filing it, and should state tersely and specifically the facts upon which it is based."

§ 692. Who may protest-Co-tenant's rights and duties as to protest and adverse.- A protest may be filed by any person, whether interested in the land or not, who is able to show any state of facts tending to show the illegality of the patent proceedings. It may be filed by an adverse claimant who has lost his rights to adverse by failure to do so in time; but in such case he stands in the same position as any other protestant and may not litigate any question

2420 M. Co. v. Bullion M. Co., 3 C. L. O. 5; T. M. Empy, 10 C. L. O. 103; Bradstreet v. Rehm, 21 L. D. 30; Com'r to Missoula Office, April 25, 1893.

IR. S. U. S., § 2325; Gen. L. O. tin v. Baker, 6 L. D. 763; Smuggler Cir., June 24, 1899, par. 58. M. Co. v. Trueworthy Lode, 19 L. D. 356; Bradstreet v. Rehm, 21 L.D. 30. 4 Cedar Hill M. Co. v. Jacob Little Cons. M. Co., 1 L. D. 628; Nevada Lode, 16 L. D. 532; Whitman v. Haltenhoff, 19 L. D. 245; Jupiter Mine, 4 C. L. O. 114; Kemp v. Star, 6 C. L. O. 3; Camp Bird Case, Sickles' Min. Dec. 246; Sec'y to Com'r Drummond, Copp's Min. Lands, 133.

3 Beals v. Cone (Colo.), 62 Pac. Rep. 948; Commissioner to Leadville Office, Copp's Min. Lands, 272; Bright v. Elkhorn M. Co., 8 L. D. 122; Dotson v. Arnold, id. 439; Mar

which should have been raised by adverse proceedings.1 And a co-owner whose name has not been included in the application for patent may protest against its issuance, setting forth the nature and extent of his interest.2

The general rule is that, if the adverse claim is legal in its nature and disputes the claimant's right to any part of the surface or to the title, for purely legal reasons, not involving a trust, an adverse claim should be filed. If, on the other hand, the nature of the claim is purely equitable, and the relation is such that the patent would merely confirm the title, as, for instance, a mining partner holding the title in his own name, or any other case involving a trust, the beneficiary of the trust need not adverse."

693. The right to appeal.- A mere protestant who has no interest in the subject-matter may not appeal. But one who shows an ultimate interest in the subject-matter may appeal. Such interest, of course, must be protected by the protestant himself in some suitable way, if the protest is sustained. The protest itself, even though successful, gives him no pre-emption right, but if he is in possession ready to pursue such other remedies as the law affords him he will be protected in such possession.

§ 694. Protest proceedings not necessarily res judicata. Where a party files a protest in the land office against the issuance of a patent for a mining claim, and the same is sustained, the applicant is not thereby precluded from mak

2 Gen. L. O. Cir., supra, par. 58. See Thomas v. Elling, 25 L. D. 495. 3 See Turner v. Sawyer, 150 U. S. 578; Thomas v. Elling, supra.

1 Gen. L. O. Cir., June 24, 1899, 356; Parsons v. Ellis, 23 L. D. 69; par. 58. Elda M. & M. Co. v. Mayflower G. M. Co., 24 L. D. 573; Camp Bird Case, Sickles' Min. Dec. 246; McGarrihan v. Boston Mine, id. 330; Boston Hydraulic M. Co. v. Eagle Copper Mine, id. 320; Kemp v. Starr, 6 C. L. O. 3: Com'r to Leadville Office, Copp's Min. Lands, 272.

4 Cedar Hill M. Co. v. Jacob Little Cons. M. Co., 1 L. D. 628; Dotson v. Arnold, 8 L. D. 439; Martin v. Baker, 6 L. D. 763; Smuggler M. Co. v. Trueworthy Lode, 19 L. D.

5 Wright v. Elkhorn M. Co., 8 L. D. 122; Nevada Lode, 16 L. D. 532.

ing a second application for the same ground;1 the rule being that land office proceedings are res judicata only as to the matters appearing in the records and do not preclude the applicant from amending his proceedings, producing other and better evidence, and sustaining his claim by that means if he can, at any time before patent is issued to the land involved.

701. Same-Character of the land - How determined - Development of coal.

702. Preference right-Improvements.

703. Final entry - Cash entry - Purchase price.

704. Who may enter - Quantity.

705. Same-Real party in interest - Right may be exercised but

once.

706. Cancellation of entry.

707. The doctrine of this chapter restated.

§ 700. Mode of procedure.— The statute provides that coal entry must be made on the vacant, surveyed public lands of the United States by legal subdivisions. To this extent its requirements are similar to those relative to agricultural rather than to other mineral lands. The first step necessary is the filing of a declaratory statement, which should be upon the oath of the applicant, or if there be more than one, upon the oath of all, and should set forth generally

1. The citizenship of the applicant or applicants, and the fact that he or each of them is over the age of twenty-one years.

2. A description of the land, with reference to legal sub

1 Beals v. Cone (Colo.), 62 Pac. Rep. 948; Clipper M. Co.. 22 L. D.

527.

2 R. S. U. S., § 2347-2351; Land Office Regulations, July 31, 1882, revised to December 28, 1897, pars.

2, 6 and 7; Mitchell v. Brown, 3 L D. 65.

3 See generally, R. S. U. S., chs. 7,

8, 9.

4 Gen. L. O. Regulations, supra, pars. 32-36.

divisions, its non-mineral character, and the statement that the applicant desires to enter it as coal land and that it is valuable as such.

3. That the applicant has never, either as an individual or as a member of any association, previously entered coal lands under the United States laws.1 This application should be accompanied by the affidavit of two disinterested witnesses, familiar with the character of the land in question, to the effect that it does not contain, to their knowledge, any val uable vein or deposit of gold, silver or copper.2

These papers must all be signed and sworn to by the applicant or applicants, if there be more than one, in person. After they are properly signed and sworn to, however, they may be filed in the land office, and all other proceedings taken by a duly constituted agent or attorney. And where the applicant is not familiar with the character of the land, his declaratory statement should so state, in which case the affidavit as to its character may be made by an agent familiar with all the facts; but whether made by principal or agent, it must be accompanied by the affidavit of two disinterested parties.*

8701. Same-Character of the land- How determined Development of coal.- Before lands may be entered as coal lands, it must appear as a present fact that coal has been developed thereon in sufficient quantities to justify working it as coal land. It must be shown as a present fact to be more valuable for coal than for any other purpose and this is the guiding rule in the selection of all lands, and not to contain any valuable vein or deposit of

1 Land Office Reg., Dec. 28, 1897; R. S. U. S., §§ 2348-49.

5 Walker v. Taylor, 23 L D. 110. See authorities cited in notes to

2 Land Office Reg., supra, pars. last section ante. 10, 35.

3 Ayers v. Daly, 3 C. L. O. 196; Land Office Reg., supra, par. 34.

4 Land Office Reg., supra, par. 35. Forms in such cases are to be found in Appendix "D.”

6 Hamilton v. Anderson, 19 L. D. 168; Comm'rs of Kings County v. Alexander, 5 L. D. 126; Smith v. Buckley, 15 L. D. 321; Jones v. Driver, 15 L. D. 514.