Pac. Rep. 77. (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.

118. An allegation by a protestant that

the location of the claim entered was void because of its conflict with his prior location will not be considered, as he should have protected his right by filing an adverse claim. Gowdy v. Kismet G. M. Co., 22 L. D. 624.

119. Adverse claimants who fail to file or

to commence suit within the proper time will be treated as protestants, but cannot appeal. Juniper Mine, 4 C. L. O. 114.

120. Where parties fail to file adverse claims within the legal period they cannot be recognized as parties in interest, and are not entitled to the right of appeal. Camp Bird Case, Sickel's Min. Dec. 246; Kemp v. Starr, 6 C. L. O. 3.

121. A discovery of a vein or lode of mineral-bearing rock in place is a prerequisite to a valid location, and failure to make such

discovery may be set up before the Land Department by one who has failed to file an adverse claim. Waterloo M. Co. v. Doe, 17 L. D. 111.

122. Where, in the location certificate of a mining claim of which entry has been made, it is stated that the location is upon an abandoned claim, the entryman is not required to furnish evidence of such abandonment, as the owner of the claim alleged to be abandoned loses his rights by failure to file an adverse claim. Manhattan & San Juan S. M. Co., 2 L. D. 698.

123. A tunnel claimant who does not file an adverse claim is a protestant. Bodie T. & M. Co. v. Bechtel Cons. M. Co., 1 L. D. 584.

124. An agricultural claimant who does not contest an application for a mineral patent is not entitled, as of right, to a hearing to determine the character of the land. Anderson v. Amador, etc. Canal Co., 10 L. D. 572.

4. What Must be Shown.

126. Unless the nature, boundaries and extent of the adverse claim are shown, an adverse claim must be dismissed. Robinson v.

Mayger, 9 C. L. O. 5; Secretary, Nov. 12, 1881,

In re Stroever v. Chamberlain.

127. The conflict forming the basis of the adverse claim must be actually surveyed by a United States Deputy Mineral Surveyor (Com'r to Prescott Office, July 17, 1873); and a diagram or plat made from a survey by another will not be accepted. Com'r to Salt Lake City Office, May 1, 1873; Jackson v. Tiger S. M. Co., Sickel's Min. Dec. 263; Bates

v. Chambers, 1 C. L. O. 98; Sickel's Min. Dec. 265.

128. A plat of an adverse claim made by one not a United States Deputy Mineral Surveyor is not good; but if such a plat be filed, and after the period of publication an official plat is tendered, it may be filed nunc pro tunc. Reno v. Old Kentucky G. M. Co., Com'r to Durango Office, Jan. 20, 1896.

129. The nature and extent of an adverse

claim may be shown by an unofficial survey, if it is impracticable to obtain an official survey by a United States Deputy Mineral Surveyor. Hoffman v. Beecher, 31 Pac. Rep. 92.

130. Conflict shown by a platting thereof from the location notice, on applicant's plat, by a United States Deputy Mineral Surveyor, permitted where a survey is impossible. Philadelphia M. Co. v. Finley, 10 C. L. O. 340.

131. An adverse claimant is not permitted to color a portion of the applicant's survey and treat it as his entire claim. Bates v. Chambers, 1 C. L. O. 98; Sickel's Min. Dec. 265.

132. If it is impossible to make a survey to show the boundaries of an adverse claim, its absence may be waived if the conflict is shown as nearly as practicable from information available. J. S. Wallace, 1 L. D. 582.

133. Failure to file a plat showing adverse conflict may be excused when adverse claimant has been obstructed by applicant. Jennie Lind M. Co. v. Eureka M. Co., Sickel's Min. Dec. 223, 231.

ants may be waived. Hawkeye Placer v. Gray Eagle Placer, 15 L. D. 45.

154. Parties, to have their adverse claims considered, must comply with the law and the regulations. Jackson v. Tiger S. M. Co., Sickel's Min. Dec. 263; Bates v. Chambers, Sickel's Min. Dec. 265.

155. In applications for patent, proof of citizenship is not required of the original locators or intermediate owners, but of the applicants for patent or adverse claimants only. Cash Lode, 1 C. L▲ O. 98.

156. Proof that a locator was not a citizen before he disposed of his claim must be shown affirmatively by the adverse claimant who sets up alienage. Kempton Lode, 1 C. L. O. 178.

5. Effect.

ful party to the suit. Rose v. Richmond M. Co., 17 Nev. 25; 27 Pac. Rep. 1105; 114 U. S. 576; 2 Colo. Law Rep. 7.

165. An entry will be canceled if adverse suit is still pending against the application. Iola Lode, 1 L. D. 539; Meyer v. Hyman, 7 L. D. 83.

166. A mineral entry allowed during the pendency of adverse suit against the applicant need not be canceled, but remains suspended to await the determination of said suit. Meyer v. Hyman (on review), 7 L. D. 336. (Revoking Meyer v. Hyman, 7 L. D. 83.) 167. Where an adverse claim is filed

against an application for patent, the applicant may (1) suspend proceedings before the Land Department and litigate with the adverse claimant, (2) relinquish the ground in conflict from his application (litigating therefor) and take patent for the remainder of his

D. 527.

158. Entry should not be allowed pending suit on an adverse claim. Brown v. Bond, 11 L. D. 150.

159. An entry allowed pending adverse suit may stand on settlement and withdrawal of the adverse claim. Gunnison Crystal M. Co., 2 L. D. 722; Meyer v. Hyman, 7 L. D. 336.

160. Where a mineral entry is allowed

upon dismissal of adverse suit, it will be canceled upon the reinstatement of the suit. Iola Lode, 1 L. D. 539.

161. The allowance of a mineral entry during the pendency of adverse suit has no effect upon a patent issued after the termination of the adverse suit in favor of applicant, the allowance of the entry at that time being merely an irregularity. Deno v. Griffin, 20 Nev. 249; 20 Pac. Rep. 308.

162. Issuance of patent for a mining claim during pendency of adverse suit is no ground for dismissal of the suit. Frien v. Oggshaw, 3 Wyo. 59.

163. An adverse claim must be settled or waived before a patent can issue. St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673.

164. A patent issued during pendency of an adverse suit is void as against the success

in its entirety and continue to claim under his possessory title. Branagan v. Dulaney, 2 L. D. 744.

168. In an adverse, the subject-matter of controversy having been transferred to a court of competent jurisdiction, all proceedings affecting the property must be stayed with the exception of publication and making proof thereof. Great Eastern M. Co. v. Esmeralda M. Co., 2 L. D. 705.

169. An adverse claimant cannot apply for the conflict 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.

170. Even though the adverse claim has been dismissed by the Land Department, if suit is commenced thereon, proceedings will be suspended pending the suit. Samuel McMaster, 2 L. D. 706.

171. Where entry has been made for a mining claim and thereafter an application is erroneously allowed for a conflicting claim, and the entryman of the first claim files an adverse claim against said application and begins suit thereon, all action will be suspended both upon said entry and said application during the pendency of said suit. Little Giant Lode, 22 L. D. 629.

172. The merits of an adverse claim may not be inquired into by the Land Department, the assertion thereof in proper manner and

institution of suit constituting a bar to any proceedings by the Land Department (sec. 2326, U. S. Rev. Stats.). Robinson v. Mayger, 1 L. D. 538.

181. If an adverse suit is pending against an application, the application may not be rejected. Iron Silver M. Co. v. Mike & Starr M. Co., 6 L. D. 533; Solitaire M. & M. Co. v. Sigafus, 10 L. D. 270.

174. Where an adverse suit is instituted prior to the filing of application for patent, all proceedings must be stayed before the Land Department until final disposition thereof. Northwestern Lode, 8 L. D. 437.

175. A. filed an application for patent and B. adversed; then B. filed an application and A. adversed. Held, that B.'s application was improperly allowed and must be rejected. Great Eastern M. Co. v. Esmeralda M. Co., 2

L. D. 704.

176. If suits are begun on an adverse claim, action on the merits will not be taken by the Land Department. Ovens v. Stephens, 2 L. D. 699; Great Eastern M. Co. v. Esmeralda M. Co., 2 L. D. 704.

177. The Land Department must await final disposition in court of an adverse claim. It cannot charge negligence in prosecution of the suit and declare the adverse waived. Secretary, June 25, 1879.

178. If an adverse claim is in proper form and is filed in time, the merits thereof is not a question for the Land Department, which under the law is bound to suspend action that the controversy may be settled in court. Valentine Gold Qtz. Mine, Sickel's Min. Dec. 287; King of the West Lode, Sickel's Min. Dec. 297; Ovens v. Stephens, 2 L. D. 699; Jamie Lee Lode v. Little Forepaugh Lode, 11

L. D. 391.

179. The question of how far the General Land Office may extend its examination into the sufficiency of an adverse claim, considered. Shoo Fly Lode v. Mono Lode, 1 C. L. O. 138.

180. Proceedings may not be taken against a mineral application on a protest during the pendency of adverse suits against the application. Swaim v. Craven, 12 L D. 294. (NOTE- In this case adverse suits were in- | stituted by lode claimants against a placer application.)

183. Entry should be allowed only on proof that suit had not been commenced within thirty days after filing of adverse claim. Com'r to Marysville Office, Dec. 19, 1878.

184. On the termination of a suit on an adverse claim, any entry made must conform to the judgment rendered. Hence, entry should not be allowed until a copy of the judgment roll is filed in the local land office. Silver King Lode, 14 L. D. 308.

185. Though an adverse claim was ir regular and defective, if suit is commenced thereon proceedings will be stayed before the Land Department. Secretary, Feb. 19, 1890.

186. A motion made by the adverse claimant to dismiss an application for patent will not be allowed during pendency of a suit on

an adverse claim filed in accordance with the provisions of section 2326, United States Revised Statutes. Solitaire M. & M. Co. v. Sigafus, 10 L. D. 270.

187. After application for patent and publication of notice thereof, a claim may be relocated for abandonment, and upon a showing of such abandonment and relocation the ap plication will be canceled if no adverse claim, or suit based on an adverse claim, is pending against said application. Continental G. & S. M. Co. v. Gage, 10 L. D. 534.

188. Publication of notice of application for a mineral patent is process which brings all adverse claimants into court, and the grantee of an applicant for patent against whose application an adverse suit is pending takes pendente lite even though no notice of lis pendens is filed. People ex rel. Darby v. District Court, 19 Colo. 343.

189. "We can imagine several ways in which it can be shown that the adverse claim is waived without invading the jurisdiction of the court while the case is still pending,

One of these would be the production of an instrument signed by the contestant, and duly authenticated that he had sold his interest to the other party, or had abandoned his claim and his contest. Or, since the Act says that all proceedings shall be stayed in the land office from the filing of the adverse claim, and not from the commencement of the action in the court, within thirty days, such delay of thirty days is made, by the statute, conclusive of a waiver. A filing in the records of the court, by the plaintiff, of a plea that he abandons his cause or waives his claim, might authorize the land office to proceed." Richmond M. Co. v. Rose, 114 U. S. 576.

190. Abandonment of surface conflict by the applicant for patent does not remove suspension of action by the Land Department resulting from the filing of an adverse claim. Sacramento Lode v. Last Chance No. 2 Lode, Sickel's Min. Dec. 73.

191. An applicant against whose application an adverse is filed and suit begun may relinquish the ground in controversy and make entry of the remainder of his claim. Last Chance M. Co. v. Tyler M. Co., 7 U. S. App. 463; 54 Fed. Rep. 284; 9 U. S. App. 613; 61 Fed. Rep. 557. (Reversed in Last Chance M. Co. v. Tyler M. Co., 157 U. S. 683.)

192. The stay of proceedings in the Land Department is removed by waiver of the adverse claim by the adverse claimant. St. Lawrence M. Co. v. Albion Cons. M. Co., 4 L. D. 117; Albion Cons. M. Co., 4 L. D. 376.

193. A. applied for patent. B. applied for a conflicting claim and A. adversed. Held, that on relinquishment by B. of conflict with the claim of A., as shown by adverse and as applied for, B. may make entry without regard to the adverse of A. Com'r to Glenwood Springs, Colo., Office, April 23, 1896, In re Homestake Lode.

194. Where a placer patentee has filed an adverse claim against the application for patent for a lode claim within the placer and has begun suit thereon, the Land Department will take no action, but will leave the parties to secure a determination of their rights in court. Iron Silver M. Co. v. Mike & Starr M. Co., 6 L. D. 533.

195. An adverse claimant whose suit has been dismissed occupies the same place as one who failed to adverse. Kannaugh v.

Quartette M. Co., 16 Colo. 341; 27 Pac. Rep. 245.

196. An adverse claim having been filed and full opportunity accorded for the settlement of questions raised by a protestant (assignee of the adverse claimant), but which were not settled, the questions raised by protestants will not be entertained. Southwestern M. Co. v. Gettysburg Lode, 4 L. D. 271.

197. An adverse claimant whose adverse suit has been dismissed will not thereafter be heard to attack the validity of the applicant's title. Kannaugh v. Quartette M. Co., 16 Colo. 341; 27 Pac. Rep. 245.

198. The failure of adverse claimant to give notice to Register and Receiver of the commencement of suit in court cannot work a forfeiture of his right. Halsey v. Hewitt, Sickel's Min. Dec. 238; 5 C. L. O. 162. Contra, Beatty & Clements, 2 C. L. O. 82.

199. An adverse claimant should file a certificate of commencement of suit. Circu

lar of Dec. 10, 1880, C. L. O. 148.

6. Suit.

200. "No possessory action between persons, in any court of the United States for the recovery of any mining title, or for damages to any such title, shall be affected by the fact that the paramount title to the land in which such mines lie is in the United States, but each case shall be adjudged by the law of possession." (Sec. 910, U. S. Rev. Stat.) Hughes v. Devlin, 23 Cal. 501; 12 Mor. Min. Rep. 241.

201. It is a general rule of law that a certificate of entry, like a patent, is conclusive of legal title; but this rule will not be followed where entry was made by the defendant in an adverse suit after the dismissal of suit, where the suit was thereafter reinstated, and the cause will be tried as though it never had been dismissed. McEvoy v. Hyman, 25 Fed. Rep. 539; 15 Mor. Min. Rep. 300.

202. Suit on an "adverse claim" is one arising under the laws of the United States, under the acts concerning removal of cases from State to Federal courts, because of Federal questions involved. Frank G. & S. M. Co. v. Larimer M. & Sm. Co., 8 Fed. Rep. 724: 1 Colo. Law Rep. 495; 1 Mor. Min. Rep. 150; Burke v. Bunker Hill & Sullivan M. & Conc. Co., 39 Fed. Rep. 644; Cheesman v. Shreeve,