376. A lien given for work done on "mines" does not cover work in mining on a patented agricultural entry. Morse v. DeAdro, 40 Pac. Rep. 1019.

377. A mineral patent will issue only to a qualified applicant for patent or to one claiming under him by transfer before entry. J. C. Baker Fraction Placer, 23 L. D. 112.

ADVERSE CLAIMS.

I. THE STATUTES.

II. REGULATIONS.

III. DECISIONS.

1. Verification.

2. Subject of.

3. Filing.

4. What Must be Shown. 5. Effect of.

6. Suit.

7. Judgment.

8. General.

I. THE STATUTES.

Where an adverse claim is filed during the period of publication, it shall be upon 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 copy of the judgmentroll with the register of the land-office, together with the certificate of the surveyorgeneral 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 decision of the court, to rightly possess. If it appears from the decision of the court that several parties are entitled to separate and

different portions of the claim, each party may pay for his portion of the claim with the proper fees, and file the certificate and description by the surveyor-general, whereupon the register shall certify the proceedings and judgment-roll to the Commissioner of the and patents shall issue to the several parties General Land Office, as in the preceding case, according to their respective rights. Nothing herein contained shall be construed to prevent the alienation of a title conveyed by a patent for a mining-claim to any person whatever. (17 Stat. 93; 19 Stat. 52; sec. 2326, U. S. Rev. Stat.)

Act of March 3, 1881.

AN ACT to amend section twenty-three hundred and twenty-six of the Revised Statutes relating to suits at law affecting the title to mining-claims.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That if, in any action brought pursuant to section twentythree hundred and twenty-six of the Revised Statutes, title to the ground in controversy shall not be established by either party, the jury shall so find, and judgment shall be entered according to the verdict. In such case costs shall not be allowed to either party, and the claimant shall not proceed in the landoffice or be entitled to a patent for the ground in controversy until he shall have perfected his title.

Approved March 3, 1881. (21 Stat. 505.)

Act of April 26, 1882.

AN ACT to amend section twenty-three hundred and twenty-six of the Revised Statutes, in regard to mineral lands, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled: That the adverse claim required by section twenty-three hundred and twenty-six of the Revised Statutes may be verified by the oath of any duly authorized agent or attorney-in-fact of the adverse claimant cognizant of the facts stated: and the adverse claimant, if residing or at the time being beyond the limits of the district wherein the claim is situated, may make oath to the adverse claim before the clerk of any court of record of the United States or the State or Territory where the adverse claimant may then be, or before any notary public of such State or Territory. Approved April 26, 1882. (22 Stat. 49.)

II. REGULATIONS.

81. Section 2326, and the act of April 26, 1882, provide for adverse claims, fix the time within which they shall be filed to have legal effect, and prescribe the manner of their adjustment, etc.

82. An adverse mining claim must be filed with the register and receiver of the Land Office where the application for patent was filed, or with the register and receiver of the district in which the land is situated at the

time of filing the adverse claim. It must be on the oath of the adverse claimant, or it may be verified by the oath of any duly authorized agent or attorney-in-fact of the adverse claimant, cognizant of the facts stated.

83. Where an agent or attorney-in-fact verifies the adverse claim, he must distinctly swear that he is such agent or attorney, and accompany his affidavit by proof thereof.

84. The agent or attorney-in-fact must make the affidavit in verification of the adverse claim within the land district where the claim is situated.

85. The adverse notice must fully set forth the nature and extent of the interference or conflict; whether the adverse party claims as a purchaser for valuable consideration or as a locator; if the former, a certified copy of the original location, the original conveyance, a duly certified copy thereof, or an abstract of title from the office of the proper recorder should be furnished, or if the transaction was a merely verbal one he will narrate the circumstances attending the purchase, the date thereof, and the amount paid, which facts should be supported by the affidavit of one or more witnesses, if any were present at the time, and if he claims as a locator he must file a duly certified copy of the location from the office of the proper recorder.

66

86. In order that the 'boundaries" and "extent" of the claim may be shown, it will be incumbent upon the adverse claimant to file a plat showing his entire claim, its relative situation or position with the one against which he claims, and the extent of the con flict. This plat must be made from an actual survey by a United States deputy surveyor, who will officially certify thereon to its correctness; and in addition there must be attached to such plat of survey a certificate or sworn statement by the surveyor as to the approximate value of the labor performed or improvements made upon the claim by the adverse party or his predecessors in interest, and the plat must indicate the position of any shafts, tunnels, or other improvements, if any such exist, upon the claim of the party opposing the application, and by which party said improvements were made: Provided, however, That, if the application for patent describes the claim by legal subdivisions, the adverse claimant, if also claiming by legal subdivisions, may describe his adverse claim in the same manner without further survey or plat.

87. Upon the foregoing being filed within the sixty days as aforesaid, the register, or in his absence the receiver, will give notice in writing to both parties to the contest that such adverse claim has been filed, informing them that the party who filed the adverse claim will be required within thirty days from the date of such filing to commence proceedings in a court of competent jurisdiction to determine the question of right of possession, and to prosecute the same with reasonable diligence to final judgment, and that, should such adverse claimant fail to do so, his adverse claim will be considered waived, and

the application for patent be allowed to proceed upon its merits.

88. When an adverse claim is filed as aforesaid, the register or receiver will indorse upon the same the precise date of filing, and preserve a record of the date of notifications issued thereon; and thereafter all proceedings on the application for patent will be suspended, with the exception of the completion of the publication and posting of notices and plat, and the filing of the necessary proof thereof, until the controversy shall have been adjudicated in court, or the adverse claim waived or withdrawn.

89. Where an adverse claim has been filed and suit thereon commenced within the statutory period, and final judgment determining the right of possession rendered in favor of the applicant, it will not be sufficient for him to file with the register a certificate of the clerk of the court, setting forth the facts as to such judgment, but he must, before he is allowed to make entry, file a certified copy of the judgment, together with the other evidence required by section 2326, Revised Statutes.

90. Where such suit has been dismissed, a certificate of the clerk of the court to that effect, or a certified copy of the order of dismissal, will be sufficient.

91. In no case will a relinquishment of the ground in controversy, or other proof, filed with the register or receiver, be accepted in lieu of the evidence required.

92. Where an adverse claim has been filed, but no suit commenced against the applicant for patent within the statutory period, a certificate to that effect by the clerk of the State court having jurisdiction in the case, and also by the clerk of the circuit court of the United States for the district in which the claim is situated, will be required.

104. The fees payable to the register and receiver for filing and acting upon applications for mineral-land patents are five dollars to each officer, to be paid by the applicant for patent at the time of filing, and the like sum of five dollars is payable to each officer by an adverse claimant at the time of filing his adverse claim. (Sec. 2238, R. S., paragraph 9.)

105. All fees or charges under this law may be paid in United States currency.

III. DECISIONS.

1. Verification.

1. An adverse must be upon oath of the adverse claimant. Samuel McMaster, 2 L. D. 706. 2. An adverse by several parties need be verified by one only. Jenny Lind M. Co. v. Eureka M. Co., Sickel's Min. Dec. 223–231.

3. An adverse sworn to before an officer out

side of the land district, but whose jurisdiction extends into the land district, and who acted within his jurisdiction, held good. Corning

4. A commissioner of deeds for Nevada, residing in California, is not an officer before whom an adverse claimant to a mine in Nevada may make oath. (Rendered prior to act of 1882.) Dardanelles M. Co. v. California M. Co., Sickel's Min. Dec. 326; Corning M. & Red. Co. v. Pell, 3 C. L. O. 195.

5. An agent who files an adverse claim must show his authority and swear to the adverse claim within the land district wherein the claim is situated. Circular of May 9, 1882,

1 L. D. 685.

6. An adverse by corporation may be veri

fied under oath of its president, other proper officer or duly authorized agent. Hawley Cons. M. Co. v. Memnon M. Co., Sickel's Min. Dec. 235; Equator M. & Sm. Co. v. Marshall S. M. Co., 1 C. L. O. 132.

7. Where the attorney of an incorporated company signs the adverse claim in the usual form as "general manager and attorney in fact," and verifies the same before a notary public, and swears that the company is duly incorporated, further evidence of incorporation and power to hold real estate is not required. Philadelphia M. Co. v. Finley, 10 C. L O. 340.

8. Failure of an agent who files an adverse claim, sworn to as agent, and on which suit is duly instituted, to furnish proof of agency at time of filing the adverse claim, will not warrant the allowance of entry upon the application against which the adverse claim is filed, and an entry so allowed will be canceled. Brown v. Bond, 11 L. D. 150.

2. Subject of.

9. An agricultural claim may be the subject of an adverse claim. Anderson v. Amador & Sacramento Canal Co., 10 L. D. 572. Contra, Com'r to Rapid City Office, April 13, 1889; Com'r to Lake City Office, Dec. 1, 1880.

10. Delinquent co-tenants must protect their rights by adverse. Grampian Lode, 1 L. D. 544; Lucy B. Hussey Lode, 5 L. D. 93; Monitor Lode, 18 L. D. 358; Gold Dirt Lode, 10 C. L. O. 119; J. Q. S. Lode, 10 C. L. O. 206; Mattingly v. Lewisohn, 8 Mont. 259; 19 Pac. Rep. 310.

11. Contra: A co-owner need not protect his rights by adverse if application for patent

owners; but if patent issues to them, they will be declared constructive trustees for the owner whose name is omitted from the application. Brundy v. Mayfield, 15 Mont. 201; Sawyer, 150 U. S. 38 Pac. Rep. 1067; Turner v.

13. An adverse claim under section 2326, United States Revised Statutes, need not be filed by co-owner if application for patert is made by another co-owner. Hunt v. Patchin, 13 Sawy. 304; 35 Fed. Rep. 816.

14. A co-owner of a mining claim who is not joined with the other owners must, to be recognized by the Land Department, protect his rights by filing an adverse claim under section 2326, United States Revised Statutes. Grampian Lode, 1 L. D. 544.

15. Where an applicant bases his right to a patent on a relocation, in the making of which he acted as a constructive trustee for the benefit of co-owners according to their respective interests in the original location, such co-owners are not obliged to adverse the application, but may have the applicant declared trustee. Hunt v. Patchin, 13 Sawy. 304; 35 Fed. Rep. 816.

16. The regularity and legality of forfeiture proceedings against alleged delinquent co owners, under section 2324, United States Revised Statutes, will not be questioned by the Land Department if such co-owners fail to protect their rights under section 2326, United States Revised Statutes. Grampian Lode, 1 L. D. 544.

17. Dower interest in a mining location must be protected by an adverse claim under section 2326, United States Revised Statutes, as the possessory title, which is subject to dower, merges in the absolute fee-simple title on issuance of patent. Black v. Elkhorn M. Co., 49 Fed. Rep. 549.

18. A claimant under a Mexican grant must protect his rights by filing an adverse claim and instituting suit thereon. If he