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36. A prior mining location is not affected | vada Cons. M. Co., 2 Idaho, 386; 17 Pac. Rep. by a town site entry. The mining claimant 83; Tioga Cons. M. Co., 8 C. L. O. 88. need not file an adverse claim. Butte City Smokehouse Cases, 6 Mont. 397; 12 Pac. Rep. 858; Silver Bow M. & M. Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574; Talbott v. King, 6 Mont. 76; 9 Pac. Rep. 434.

37. Where prior to application for patent the owner of a mining claim conveys a part thereof as a town lot, the grantee is not bound to adverse the application, but the patentee takes title subject to a trust in favor of his grantee. Suessenbach v. First National Bank, 5 Dak. 447; 41 N. W. Rep. 662.

42. A surface conflict is a necessary basis of an adverse claim. Smuggler M. Co. v. Trueworthy Lode, 19 L. D. 356; Com'r to Leadville Office, Feb. 28, 1880; New York Hill Co. v. Rocky Bar Co., 6 L. D. 318; Eureka M. Co. v. Pioneer Cons. M. Co., 8 C. L. O. 106.

43. Under section 2326, United States Revised Statutes, an adverse claim must be against the claim of the applicant, not based on an equitable right in the claim. Doherty v. Morris, 11 Colo. 12; 16 Pac. Rep. 911.

44. Possession held by a tenant of the adverse claimant is a proper basis of an adverse claim. Wolverton v. Nichols, 119 U. S. 485; 2 Pac. Rep. 308; 15 Mor. Min. Rep. 309.

38. A tunnel claimant need not adverse a lode applicant whose claim lies within fifteen hundred feet of the line of the tunnel, where there is no apparent conflict of rights, and is 45. Where a mining claim has been sold not estopped by failure so to adverse from on execution and thereafter application is claiming fifteen hundred feet along any lodes filed by the judgment debtor, who gives due subsequently discovered in his tunnel. Enter-notice thereof, the claim of the vendee is adprise M. Co. v. Rico Aspen Cons. M. Co., 66 Fed. Rep. 200. (Refuses to follow Corning Tunnel & M. Co. v. Pell, 4 Colo. 507; 14 Mor. Min. Rep. 612.) Hope Mining Co. v. Brown, 7 Mont. 550; 19 Pac. Rep. 218.

39. A tunnel claimant has no cause for adversing a lode claimant who has made a discovery outside of the line of tunnel, and whose location lies across the line of tunnel, unless the lode has been discovered in said tunnel. Hope M. Co. v. Brown, 7 Mont. 550; 19 Pac. Rep. 218. (Overrules Hope M. Co. v. Brown (supra), 11 Mont. 370; 28 Pac. Rep. 732, wherein it is held that patent proceedings by lode claimant will be suspended until development of lode in tunnel or abandonment of tunnel right (and, semble, the lode claimant will be restrained from taking ore from the line of tunnel). Corning Tunnel, etc. Co. v. Pell, 4 Colo. 507; 14 Mor. Min. Rep. 612, not followed.)

40. A tunnel claim under section 2323, United States Revised Statutes, is a mining

claim, and must be protected by filing of an adverse claim if application for patent to a claim in conflict therewith is filed. A failure to file an adverse claim is a waiver of all rights under the tunnel claim adverse to those of the applicant for patent. Bodie Tunnel & M. Co. v. Bechtel Cons. M. Co., 1 L. D. 584; Broder v. Natoma Water & M. Co., 101 U. S. 274.

41. A tunnel location must be protected by adverse. Bodie Tunnel & M. Co. v. Bechtel <Cons. M. Co., 1 L. D. 584; Back v. Sierra Ne

verse to that of the applicant and must be protected by adverse proceedings under section 2326, United States Revised States, or be considered waived. Hamilton v. Southern Nevada G. & S. M. Co., 13 Sawy. 113; 33 Fed. Rep. 562; 15 Mor. Min. Rep. 314.

46. Assessment work is not done on a

claim, though one owner promises to see that it is done. A third person, in collusion with the owner by whose fault abandonment occurred, relocates and applies for patent. The other owner in the original location adverses. Held, that he has no grounds for adversing, but should file a bill in equity against the applicant to have him declared trustee. Doherty v. Morris, 11 Colo. 12; 16 Pac. Rep. 911.

47. The failure of an applicant to comply with local regulations will not justify suit by the United States to vacate the patent issued to him. Such failure should be made the sub

ject of an adverse claim or protest during the pendency of the application. Robert Hawke,

5 L. D. 131.

48. Irregularity of location must be shown in an adverse proceeding. Little Pauline Lode v. Leadville Lode, 7 L. D. 506.

49. All questions concerning the proper location and maintenance of a prior location, and performance of labor, must be left to the courts. Branagan v. Dulaney, 2 L. D. 749.

50. Any state of facts which shows that the person alleging the same has a better right to the premises than the applicant is

the proper subject of an adverse claim. | existing prior to that date. Eclipse G. & S. Mono M. Co. v. Magnolia E. & W. Co., Sickel's M. Co. v. Spring, 59 Cal. 304. Min. Dec. 198, 2 C. L. O. 68.

51. The allegation by a protestant that the location of a mining claim applied for was invalid because in conflict with the prior location of the protestant is simply the alle- | gation of an adverse claim, which may be tried only in the manner prescribed by section | 2336, United States Revised Statutes, in a court of competent jurisdiction. Bodie T. & M. Co. v. Bechtel Cons. M. Co., 1 L. D. 584.

52. Any rights adverse to a mineral application must be protected by an adverse claim under section 2326, United States Revised Statutes. Omaha & Grant Sm. & Red. Co. v. Tabor, 13 Colo. 41; 21 Pac. Rep. 925; Seymour v. Fisher, 16 Colo. 188; 27 Pac. Rep. 240; Lee v. Stahl, 9 Colo. 208; 11 Pac. Rep. 77. (Affirmed, 13 Colo. 174; 22 Pac. Rep. 436.)

53. Conflicting claims must be protected under section 2326, United States Revised Statutes, not by second application. Com'r

to Montgomery Blair, Sept. 27, 1880, Sickel's

Min. Dec. 243.

54. A court must determine all questions incidental to possession. Southwestern M. Co. v. Gettysburg Lode, 4 L. D. 273.

55. Application having been filed, applicant need not adverse a subsequent applicant. Steel v. Gold Lead G. & S. M. Co., 18 Nev. 80; 1 Pac. Rep. 448; 15 Mor. Min. Rep. 292; Rose v. Richmond M. Co., 17 Nev. 25; 27 Pac. Rep. 1105; 114 U. S. 576; 2 Colo. Law Rep. 7; Crown Point Lode, Sickel's Min. Dec. 116; id. 243; id. 275.

56. Where adverse proceedings are pending against an application for patent, the adverse claimant is not required to adverse a second application for the same land, filed by the same applicant. Rose v. Richmond M. Co., 17 Nev. 25; 2 Colo. Law Rep. 7; 27 Pac. Rep. 1105; 114 U. S. 576.

59. As claims located prior to 1872 were for one vein only, an application for a claim in conflict with another need not be adversed by the owner of such other claim to protect his rights, if such claims were located on different lodes. Blake v. Butte S. M. Co., 2 Utah, 54; 9 Mor. Min. Rep. 503.

60. A prior patentee need not adverse a subsequent application. Mantle v. Noyes, 5 Mont. 274; 5 Pac. Rep. 856; S. C., 127 U. S. 348.

61. It is unnecessary to file an adverse claim based upon a pretended lode, as all the area in conflict with a prior patent is excluded before issuance of a second patent. Com'r, June 11, 1881, McCauley Placer.

62. Where an application for patent under the lode mining laws is made for land already patented to another under the placer mining laws, the provisions of section 2326, United States Revised Statutes, do not require the placer patentee to adverse the application of the lode claim, as only those

holding mining claims by possessory title are required to proceed under that law. Iron Silver M. Co. v. Campbell, 135 U. S. 286.

63. A protest setting up only matters which might and should have been tried on an adverse suit, filed after the allowance of entry, will be dismissed. Warren Mill Site v. Copper Prince Lode, 1 L. D. 555.

64. The owner of a lode alleged to have been known at date of application for patent to a placer (patented) covering the lode should apply for patent in the usual manner and allow the placer patentee to adverse should he desire. Olathe Placer, 4 L. D. 494.

3. Filing.

65. An adverse claim must be asserted within the legal period of publication. Snow Flake Lode, 4 L. D. 30.

57. Where a patent erroneously described 66. An adverse claim should not be reground claimed, the patentees or their assigns are entitled to file an adverse against a subse-ceived if not filed until after the expiration quent application for same ground. Haseltine of the sixty days of publication. Nettie Lode v. Texas Lode, 14 L. D. 180. v. Reynolds, Sickel's Min. Dec. 311.

67. To be considered, an adverse claim must be filed within the period of publication of notice (sixty days). Tiernan v. Salt Lake M. Co., 1 C. L. O. 25; Equator M. & Sm. Co.,

58. A claimant under act of 1866 need not adverse an application for another lode, though the apex of his lode is covered by the claim applied for, by reason of the fact that the act of May 10, 1872, protects adverse rights | 2 C. L. O. 114.

valid. Jamie Lee Lode v. Little Forepaugh Lode, 11 L. D. 391.

68. An adverse claim filed one day, and on the following day withdrawn and refiled, will be considered, within the meaning of the law, 78. The local land officers are not comto have been filed upon the latter day. Spruce-pelled to receive adverse claims or file them mont Co. v. Lewis, Sickel's Min. Dec. 214; 4 outside of the regular office hours; but if C. L. O. 114. they are received and filed, and the suit is 69. If an adverse claim is not filed during commenced within the time allowed by law, the sixty days of publication, it is presumed | all action must be stayed. Sayer v. Hoosac there is no adverse, the agreement of parties | Cons. G. & S. M. Co., 6 C. L. O. 73. to the contrary notwithstanding. Gustavus Hagland, 1 L. D. 591; Lincoln Lode, Sickel's

Min. Dec. 208.

70. Though publication of notice of a mineral application in a weekly newspaper must cover sixty-three days, an adverse claim must be filed during the first sixty days thereof. Miner v. Mariott, 2 L. D. 709; Nettie Lode v. Texas Lode, 14 L. D. 180; Ledger Lode, 16 L. D. 101.

79. An adverse claim may be filed on Sunday or out of office hours if the local officers are willing to receive it. Sayer v. Hoosac Cons. G. & S. M. Co., 6 C. L. O. 73.

80. An adverse filed by the receiver on Sunday, the last day of publication, was filed within the legal period, and entitled the adverse claimant to stay of proceedings. Dolly Varden Lode, Sickel's Min. Dec. 301.

81. Filing of an adverse claim with the 71. In computing the sixty days of publi- Register at his home is a filing with the Reg

cation within which an adverse claim must be filed against a mineral application, the first day of publication is to be excluded. Bonesell v. McNider, 13 L. D. 286; Waterhouse v. Scott, 13 L. D. 718; Ledger Lode, 16 L. D. 101.

72. The period of publication within which adverse claims must be filed ceases to run against adverse claimants if the posting of the notice in the land office is not continuous. Tilden v. Intervenor M. Co., 1 L. D. 572.

73. The time within which an adverse claim must be filed ceases to run while the

ister and Receiver. Jennie Lind M. Co. v. Eureka M. Co., Sickels, Min. Dec. 223, 231.

82. An adverse claim filed out of time

operates as a protest only. Bodie T. & M. Co. v. Bechtel Cons. M. Co., 1 L. D. 584; McGarrahan v. New Idria M. Co., 3 L. D. 422; Nettie Lode v. Texas Lode, 14 L. D. 180.

83. The papers in an adverse claim once filed cannot be withdrawn, but become part of the record. Jefferson M. Co. v. Pennsylvania M. Co., 1 C. L. O. 66.

84. A misstatement in the published no

local land office is closed. Tilden v. Inter- tice of the date of the expiration of publicavenor M. Co., 1 L. D. 572.

74. If the sixtieth day of publication falls on a holiday, an adverse claim may be filed on the next business day. Satter v. Burt, 20 Wend. 205; Ground Hog Lode v. Parole & Morning Star Lodes, 8 L. D. 430; Waterhouse v. Scott, 13 L. D. 718.

75. The time within which an adverse claim must be filed does not begin to run

until posting is made on the claim and in the local land office. Great Western Lode, 5 L. D.

510.

76. The fact that proof of publication of notice of application for patent is not on file in the local land office will not warrant the local land officers in rejecting an adverse claim. Waterhouse v. Scott, 13 L. D. 718.

77. An adverse claim filed in time according to then existing Departmental rules, on the sixty-first day of publication, will be held

tion is no excuse for failure to file an adverse claim in time. Bonesell v. McNider, 13 L. D. 286; Nettie Lode v. Texas Lode, 14 L. D. 180.

85. Publication of notice of application for a mineral patent in a weekly paper requires ten insertions; but where only nine were made in accordance with the former practice of the Land Department, the entry may be referred to the Board of Equitable Adjudication for confirmation, in the absence of any adverse rights. Oro Placer, 11 L. D. 457.

86. Applicants for patent cannot extend or abridge the period of publication by stipulation or otherwise, so as to extend or limit the time within which an adverse may be filed. Com'r to Leadville Office, Sept. 19, 1879, 6 C. L. O. 105.

87. "The proceedings before the Land Department [under mineral law] are judicial in character, and the publication of notice as

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required brings all parties into court; and if
they stand by and allow the statutory time
for filing adverse claims, or for bringing suit
in support thereof, to elapse, their rights, so
far as they might have been determined in
such proceedings, in absence of fraud or mis-
take,
are lost." Kannaugh v. Quar-
tette M. Co., 16 Colo. 341; 27 Pac. Rep. 245;
Lee v. Stahl, 9 Colo. 208; 11 Pac. Rep. 77. (Re-
affirmed, 13 Colo. 174; 22 Pac. Rep. 436.) Hunt
v. Eureka Gulch M. Co., 14 Colo. 451; 24 Pac.
Rep. 550; Seymour v. Fisher, 16 Colo. 188; 27
Pac. Rep. 240; Wight v. Dubois, 21 Fed. Rep.
693.

93. Where the agent of an incorporated company signs the adverse in the usual form as "general manager, agent, 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.

94. An allegation of the official character of the president of the corporation in the adverse claim is sufficient. Jennie Lind M. Co. v. Eureka M. Co., Sickel's Min. Dec. 223,

231.

ent, as an executive officer thereof, without specific authority to do so. Com'r, July 12, 1882, Della S. Lode v. American Lode.

96. By circular of May 9, 1862, Act April 6, 1882 (22 Stat. 49), an adverse claim must be made by claimant or duly authorized agent. Proof of agency is necessary if adverse is filed by an agent. Instructions, 1 L. D. 685.

97. An adverse claim may be filed by claimant's duly authorized agent or attorney in fact. Circular of May 9, 1882, 9 C. L. O. 52.

88. Publication of notice of application for 95. An adverse claim may be filed on bemineral patent under the direction of the Re-half of a company by the general superintendceiver of the Land Office, during a vacancy in the office of Register, is the act of a de facto officer and is not invalid, and failure to adverse such application during such publication is a waiver of adverse rights. Jeffords v. Hine, 11 Pac. Rep. 351; 15 Mor. Min. Rep. 575. 89. A. and B. claim the same vein under conflicting locations. A verbal agreement is made that A. should obtain patent and convey a one-half interest to B., expenses to be borne equally. On suit to compel specific performance, it was held that the agreement was within the Statute of Frauds; that relinquishing a disputed possession and simply refraining from filing an adverse claim did not constitute a part-performance such as would take the agreement out of the statute, and that even a part-payment of expenses of securing patent could not avail plaintiff, for the 99. Failure of a prior locator to adverse reason that there was no such mutuality of the application for patent by a subsequent obligation in the agreement as would have locator operates under the law as a waiver of enabled the defendant to compel such pay-priority of right. Gwillim v. Donnellan, 115 ment had the plaintiff seen fit to refuse it. Ducie v. Ford, 8 Mont. 233; 138 U. S. 587.

90. The statutory fee demandable by the

local land officers for filing of an adverse claim may not be demanded unless the adverse claim is received and filed. Waterhouse v. Scott, 13 L. D. 718.

91. An adverse claim may not be received until the fees therefor are paid. If offered for filing in time, but the fees are not paid until after publication, the adverse claim will be considered as a protest only. Foley v. Omaha G. M. Co., 3 C. L. O. 36.

92. An incorporated company may file an adverse claim through its agent. Com'r to Central City Office, Oct. 26, 1874.

98. Failure of an agent who files an adverse claim to furnish there with proof corroborating his sworn statement of authority will not invalidate the adverse where suit has been commenced thereon. Brown v. Bond, 11 L. D. 150.

U. S. 45; 15 Mor. Min. Rep. 482; Warren Mill
Site v. Copper Prince Lode, 1 L. D. 555; Gus-
Long, 4 Sawy. 28; 1 Mor. Min. Rep. 497;
tavus Hagland, 1 L. D. 591; Chapman v. Toy

Eureka Cons. M. Co. v. Richmond M. Co., 4
Richmond M. Co., 17 Nev. 25; 27 Pac. Rep.
Sawy. 302; 9 Mor. Min. Rep. 578; Rose v.
1105; 2 Colo. Law Rep. 7; 114 U. S. 576; Steel v.
Gold Lead G. & S. M. Co., 18 Nev. 80; 1 Pac.
Rep. 448; 15 Mor. Min. Rep. 292.

100. Failure to adverse a mineral application for patent is a waiver of all claims to the ground adverse to those of the applicant, and the fact that such adverse claims are based on the same locations as those of the applicant does not vary the rule. Nichols v. Becker, 11 L. D. 8.

101. Failure to adverse an application for | rights under the prior location, not only as a conflicting claim is a waiver of all rights adverse to the applicant. Steel v. Gold Lead G. & S. M. Co., 18 Nev. 80; 1 Pac. Rep. 448; 15 Mor. Min. Rep. 292.

102. Where an adverse claim is not filed during the period of publication, all matters that might have been adjudicated thereby are considered as settled in favor of the plicant. Snow Flake Lode, 4 L. D. 30; Petit v. Buffalo G. & S. M. Co., 9 L. D. 563.

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against the patentee but also as against subsequent locators. Girard v. Carson, 44 Pac. Rep. 508 (Colo.).

110. By failing to adverse the application of a junior locator of a cross-lode, the senior locator loses his lode at point of intersection of the two veins, but not his right to the reap-mainder of his lode within the conflict between the two claims. Branagan v. Dulaney, 8 Colo. 408; 8 Pac. Rep. 669; Lee v. Stahl, 9 Colo. 208; 11 Pac. Rep. 77. (Affirmed, 13 Colo. 174; 22 Pac. Rep. 436.)

103. If no adverse claim is filed during the period of publication, it is assumed that the applicant is entitled to a patent, and no agreement of parties can control this statutory provision. (Following Gustavus Hagland, 1 L. D. 591.) Independence Lode, 9 L. D. 571.

104. Failure of a prior locator to adverse the application of a subsequent locator of a conflicting claim is a waiver of his priority. Gustavus Hagland, 1 L. D. 591.

105. Failure to adverse an application for patent is a waiver of any rights adverse or superior to those of the applicant. Seymour v. Fisher, 16 Colo. 188; 27 Pac. Rep. 240.

106. Failure to file an adverse within the time allowed by law is an admission that the adverse claimant has no right of property. He cannot be heard subsequently to claim either legal or equitable title. Wight v. Tabor, 2 L. D. 738.

107. One who has filed an application for a mining patent, but who has given no notice thereof, is bound to adverse the application of another who makes a subsequent application and gives notice thereof, and the failure so to do is a waiver of his rights. Snow Flake Lode, 4 L. D. 30.

108. One who has made an application for patent (and given notice thereof) is not required to adverse a subsequent application for a conflicting claim. Rose v. Richmond M. Co., 17 Nev. 25; 27 Pac. Rep. 1105; 2 Colo. Law Rep. 7; 114 U. S. 576; Steel v. Gold Lead G. & S. M. Co., 18 Nev. 80; 1 Pac. Rep. 448; 15 Mor. Min. Rep. 292.

109. Where the original discovery shaft of a mining location is included within a subsequent location as patented, on the failure of the first locator to commence adverse proceedings within the time required, or to set up a new discovery stake at a new discovery shaft on unappropriated ground, he loses all

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111. 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 Cons. M. Co., 1 L. D. 628.

112. The failure of one alleging an adverse interest to file an adverse claim does not

estop him from appearing as a protestant to secure cancellation of the entry for non-compliance with law. Nevada Lode, 16 L. D. 532.

113. Failure of a prior locator to adverse the application for patent to a junior conflicting location is not a waiver of priority and of right to object to issuance of such patent. Whitman v. Haltenhoff, 19 L. D. 245.

114. After the allowance of entry one who has failed to file an adverse claim will not be heard to attack the validity of the location of the claim entered, because of his own prior location, as he should have asserted his rights in the manner prescribed by section 2326, United States Revised Statutes. Warren Mill Site v. Copper Prince Lode, 1 L D. 555.

115. As the adverse claim was not filed in time, and the proof of the claimant is satisfactory, the protest is dismissed. John McNeill, 17 C. L. O. 41.

116. Where the evidence submitted by an applicant for a placer patent shows the land applied for to be placer mining land, the character of the land cannot be questioned by one asserting an adverse claim who has not proceeded as directed by section 2326, United States Revised Statutes. Dahl v.

Raunheim, 132 U. S. 260.

117. One who files no adverse claim will not be allowed to question the legality of applicant's title. Lee v. Stahl, 9 Colo. 208; 11

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