otherwise. To patent a known lode within a placer requires survey and entry just as with any other lode claim, with the exception that where the land has already been applied for or patented as a placer claim without excluding the lode, a hearing will be held in the local land office to determine if the lode is a known lode as contemplated by the Statute, and therefore impliedly reserved from the placer patent by the Statute for the benefit of whoever may locate it. No special conditions enter into the patenting of a millsite. Those attached to a lode claim may be entered with the lode claim or subsequently; they may even be located after the lode claim is patented. While no $500 expenditure is required upon a millsite claim, those attached to a lode claim require to be used for some mining and milling purpose in connection with the lode claim, and those unattached to the lode claim, to have an actual reduction works upon them. CHAPTER XX Adverse Claim R. S., Sec. 2325. * * * If no adverse claim shall have been filed with the register and the receiver of the proper land office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter. R. S., Sec. 2326. When an adverse claim is filed during the period of publication, it shall be upon the oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse claim; and all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without giving further notice, file a certified ropy of the judgment-roll with the register of the land office, together with the certificate of the surveyor-general that the requisite amount of labor has been expended or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment-roll shall be certified by the register to the Commissioner of the General Land Office, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the An adverse claim is the assertion of rights in all or any part of the ground embraced in an application for patent, under another and hostile location to the one entered for patent. It is by filing an adverse claim against the application for patent, that the miner retains his unpatented ground that has been 'jumped' or overlapped. The adverse as prepared must fully set forth the nature and extent of the interference and conflict. It should contain all the facts by which the adversary claims the right to adverse. Accompanying must be a plat showing the claims and conflict, but such survey may be made by a surveyor other than a deputy mineral surveyor. If it is impossible to survey the conflict through the claims being snowbound, the same should be stated. If both the patent application and adverse are by legal subdivisions, no survey or plat is re quired. The adverse will be made on the oath of the adverse claimant, or his duly authorized agent or attorney in fact cognizant of the facts. The adverse must be filed in the local land office where the patent application is filed, during the sixty days of publication of notice of application for patent, not including the first day of publication. No adverse claim can be received under any conditions after this period. If re-publication is ordered, the adverse must be re-filed. An adverse cannot be enlarged through amendment or a new adverse, after the publication period. If the local land office rejects the adverse as being insufficient, the adversary may appeal to the Commissioner of the General Land Office at Washington, but unless he brings suit in the courts within thirty days, just as if his adverse had been accepted at the local land office, the allowance of his adverse at Washington will not avail him. Even though the land office rejects an adverse claim, if the adverse claim is carried through regularly in every other way, the land office will respect the court decision, for should the court decision be favorable to the adverse claimant, it would tend to show that the land office was in error in not accepting the adverse. The Government wisely avoids trying to determine the possessory rights of rival claimants by requiring that the adverse claimant bring suit within thirty days from date of filing adverse, in a court of competent jurisdiction to determine the question of right of possession. If suit is not commenced within this time and prosecuted with reasonable diligence, the right of adverse is lost. An Act was passed by Congress in 1910 authorizing in Alaska, the filing of adverse claims at any time during the sixty days of publication or within eight months thereafter, and adverse suits to be instituted within sixty days after filing the adverse claims in the local land office. This Act was necessitated by the fact that travel and communication are almost suspended in parts of Alaska during the winter season. The filing of adverse claims against a patent does not stay the patent proceeding until after the completion of the publication and posting of notices and plat and the filing of the necessary proof thereof, when the matter must be rested, until the land office is able to determine from the outcome in court of the adverse cases, to what land entry should be allowed. After filing the result of the court proceedings, whether non-suit, abandonment, dismissal, or judgment, the patent application as modified by the results of the adverse suit, will proceed in the regular way. Whatever ground is awarded the adverse claimant is, of course, removed from the patent application before final entry. The adverse claimant may also file the necessary patent papers and receive patent for any area awarded him, whether part or all, if he has done the requisite $500 worth of work. Should the adverse claimant wish to patent all of the claim of which the awarded area may be a part, he will have to begin new and regular patent proceedings, including survey. If the judgment of the court is that neither party is entitled to the ground, no further proceedings can be made on the patent application. An adverse claim may be filed against any kind of a mineral entry by another mineral location, whether of the same class or not; though where the classes of locations are at variance, the adverse may take on the nature of a protest, as in the case of a lode claim adversing a millsite and questioning its non-mineral character. Claimants under filings or entries other than mineral, instead of adversing mineral applications, protest against them. A co-owner who has been excluded from the application for patent by the co-owners, may adverse in his own behalf, but his adverse is more in the nature of a protest (see 'Protest'). The ground which is the subject of an adverse may be excluded from the patent application, that it may at once proceed to final entry and patent, without any rights to the ground in conflict being waived. An agreement made by a patent applicant to deed certain portions of the claim or rights, after patent has been obtained, to those threatening to adverse in consideration of no adverse being made, is sound and valid. A lode must adverse a lode, a placer must adverse a placer, and a millsite must adverse a millsite, or lose all rights to the ground in conflict. A placer must adverse a lode or lose the conflict area. A lode must adverse a placer or lose all except 25 feet on each side of the known lode, it being protected to that extent by the Statute on known lodes in placers. Known lodes need not adverse placers, but it is best to do so. Tunnel sites need not adverse on blind lodes cut, except where it is desired to patent surface ground on such blind lodes. Lodes or placers should adverse a millsite, but may also, and more properly, protest. A millsite should adverse a lode or placer, though it may also, and more properly, protest. A co-owner may adverse, but more properly protests. |