381. On adverse suit the court has to determine only the right of possession, not the right of either party to a patent. Doe v. Waterloo M. Co., 70 Fed. Rep. 455.

382. A judgment on an adverse suit is not conclusive upon the United States as to the character of the land involved, nor as to the parties' compliance with the law. Apple Blossom Placer v. Cora Lee Lode, 14 L. D. 641. 383. A judgment favorable to an applicant for patent on an adverse suit is no bar | to an investigation by the Department as to whether the claimant has complied with the law. Geo. H. Smith, 7 L. D. 415; 10 L. D. 184; Becharts v. Sizer, 12 C. L. O. 166.

384. A hearing to determine the character of land and compliance with law may be ordered after judgment against an adverse claimant. Alice Placer, 4 L. D. 314.

385. From the fact that an adverse claimant obtains judgment in court in his favor, it does not necessarily follow that he is entitled to a patent. Antelope Lode, 2 C. L. O. 2.

386. The judgment of a court on the question of abandonment may be taken into consideration as evidence, but is not conclusive. (Hearing ordered.) Woodville Placer, Sickel's Min. Dec. 89.

387. After judgment on an adverse suit the successful claimant must file a certified copy of the judgment roll with the other evidence required by section 2326, United States Revised Statutes; if suit is dismissed, a certificate of order of dismissal must be filed; a

relinquishment of the ground in controversy by applicant, or other proof, will not be accepted in lieu of the above. Circular of July 6, 1883, 2 L. D. 726; par. 89 et seq., Mining Regulations. Contra, as to relinquishment of ground by applicant. O. D. Lambard, 3 C. L. O. 194; Ayers v. Daly, 3 C. L. O. 196; Antelope Lode, 2 C. L. O. 2.

388. A successful adverse claimant wishing to enter conflict must file a copy of the judgment roll, plat, field-notes and certificate of improvements as in other cases. (Need not wait for appeal to higher court. Questioned in 10 C. L. O. 167.) Albert F. Harsh, 2 L. D. 706; Noonan v. Caledonia G. M. Co., 10

389. "I apprehend, however, that the successful litigant, under said section (2326), occupies the same position as does an applicant who has given due notice of application, during which no adverse claim has been filed. In each case the rights of the claimant may be lost by abandonment any time prior to entry." Kennedy v. Johnston, Com'r to Leadville Office, Feb. 24, 1896.

390. A successful adverse claimant who has secured a judgment may lose his rights by forfeiture or abandonment of his claim. Steel v. Gold Lead G. & Sm. Co., 18 Nev. 80; 1 Pac. Rep. 448; 15 Mor. Min. Rep. 292.

391. Failure of adverse claimants to proceed in accordance with the provisions of sections 2325 and 2326, United States Revised Statutes, gives operation to the rule that such adverse claims have been "adjudicated in favor of the applicant." Pettit v. Buffalo Gold & Silver M. Co., 9 L. D. 563.

392. Judgment by default on adverse suit renders res judicata only those facts which must have been proved to support the judgment rendered. Tyler M. Co. v. Sweeney, 54 Fed. Rep. 284; 4 U. S. App. 329; Tyler M. Co. v. Last Chance M. Co., 9 U. S. App. 613; 61 Fed. Rep. 463; 7 U. S. App. 463; 54 Fed. Rep. 284; 157 U. S. 683.

393. A. may apply for a patent for a mining claim, exclusive of a portion thereof involved in an adverse suit brought by him against B., a prior applicant, without thereby waiving any right to the excluded portion, and if, on such suit, the land is awarded to A., he may then make entry of his entire claim, based on his application as to one part, and on his judgment as to the other.

Rebellion M. Co., 2 L. D. 542.

394. A mineral entry may be made based in part on a right secured by a judgment, and in part on the possessory right of applicant. Gunnison Crystal M. Co., 2 L. D. 722.

395. A decision of a court of competent. jurisdiction, upon a suit based upon an adverse claim against an application for a mineral patent, is reviewable by the higher courts where the amount in controversy is sufficient. Chambers v. Harrington, 111 U. S. 350.

396. A judgment rendered on an adverse suit, awarding the surface of the ground involved to a placer claimant and lodes therein

contained to lode claimants, is without authority of law and will not be followed by the Land Department, which will not issue a patent for a placer claim containing known lodes belonging to one other than the placer claimant. Apple Blossom Placer v. Cora Lee Lode, 14 L. D. 641.

397. A decision of a court of competent jurisdiction that the adverse claimant has no right, title or interest therein is final as to his rights, and he is estopped from alleging that the land is not mineral in character. Evans v. Rendall, 3 C. L. O. 2.

406. Where by a final decision on adverse suit it was held that neither party thereto was entitled to any credit for work theretofore done on the claim, before the applicant is allowed to make entry he should show an expenditure of $500 since the trial of said suit. J. D. Rankin, 7 L. D. 411.

407. In case of judgment against applicant for a portion of his claim, he may proceed to secure title to the remainder on showing the requisite amount of expenditures, etc. Rhode Island Lode, Sickel's Min. Dec. 305.

408. Claimant in application who becomes defendant in a suit by an adverse claimant, and who waives his claim, confesses judg

399. A judgment is sufficient in matter of description if it names the mining claims involved, and refers to a specific description of the claims contained in the complaint. Haws v. Victoria Copper M. Co., 160 U. S. 303.

400. A mineral entry erroneously allowed pending a suit on an adverse claim may be allowed to stand where the entryman has secured judgment in his favor on such suit. Gunnison Crystal M. Co., 2 L. D. 722.

401. No judgment of a court rendered after the filing of application will be considered binding upon the Land Department save one rendered under the provisions of section 2326, United States Revised Statutes. Nichols v. Becker, 11 L. D. 8.

402. A judgment on a suit brought thir teen months after publication of notice of application for patent is not binding on the' Land Department. Seymour v. Wood (Woodville Placer), Sickel's Min. Dec. 211.

403. A judgment on an adverse suit should describe the land as it is described by the verdict upon which it is based. Bushnell v. Crook M. & Sm. Co., 11 Colo. 247; 21 Pac. Rep.

931.

404. Evidence of the dismissal of suit. What must be furnished by the applicant. Circular of July 6, 1883, 2 L. D. 725.

405. An adverse claimant who secures judgment may apply for a patent without waiting for an appeal to a higher court. Noonan v. Caledonia G. M. Co., 10 C. L. O. 167.

of the plaintiff, should not be longer deprived of his patent to that portion to which he is entitled. Morey v. Lombard, Sickel's Min. Dec. 279.

409. The applicant for patent is entitled to enter all ground not affected by the judg ment, where the judgment is for but a part of the ground adversely claimed, though entry may not be made until the judgment becomes final. Judgment for all ground adversely claimed may be treated as a final judgment Branagan v. Dulaney, 2 L. D. 750.

410. On determination of an adverse suit. patent may issue to applicant for such portion of the claim as he shall appear from the decision of the court to rightfully possess, if a vein or lode has been discovered therein. Northwestern Lode, 8 L. D. 437.

411. Separate patents may issue for such portions of the claim as adverse parties may possess. Gustavus Hagland (review), 1 L D. 593.

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

413. When suit on an adverse claim has been dismissed, the plaintiff is no longer entitled to maintain the position of an adverse claimant. Parker v. Thompson, Secretary, July 10, 1881.

414. The dismissal of an adverse suit is a waiver of all adverse rights. Whitman v. Haltenhoff, 19 L. D. 245.

415. An adverse claimant whose suit has been dismissed occupies the same place as

416. In Utah a suit cannot be dismissed by stipulation only; decree of court must follow. Shoo Fly Lode v. Mono Lode, 1 C. L. O. 135. a lode 417. Judgment for possession of does not necessarily carry rights to surface ground. (Rendered prior to the act of 1866.) Bullion M. Co. v. Croesus G. & S. M. Co., 2 Nev. 168; 5 Mor. Min. Rep. 254.

418. Where a court has the jurisdiction it has the right to decide every question which occurs in the case. Elliott v. Piersall, 1 Pet. 340; Iowa M. Co. v. Bonanza M. Co., Sickel's Min. Dec. 288; 6 C. L. O. 75.

419. The Land Department cannot disregard the decisions of the courts. Inimitable Co., Sickel's Min. Dec. 129.

420. If a successful adverse claimant assigns to the applicant, $500 must be shown to have been expended on the conflict so as signed, as the applicant stands only in the

shoes of the adverse claimant as to that tract. Jackson M. Co., 3 L. D. 149.

421. If there is a judicial decision that claimant is not entitled to any credit for work done, he must furnish supplemental proof showing the requisite expenditures since date of judgment. J. D. Rankin, 7 L. D. 411.

422. When an adverse claim is regularly presented, and suit begun thereon, the Land Department should take no action that will affect the rights of the parties under the judgment that may be rendered. Moffat v. Compromise Lode, 8 C. L. O. 54.

423. Defendant in an adverse suit may set up title in his answer, and secure judgment declaring him to be the owner if he proves title. Perego v. Dodge, 9 Utah, 3; 33 Pac. Rep. 22.

424. In an adverse suit to determine the right of possession of mining property, a finding by the jury that the plaintiffs did not discover a vein or lode on the disputed premises will be set aside as contrary to the evidence, where there was uncontradicted testimony by plaintiffs that they had sunk a shaft, and had on a certain day discovered a vein or lode, and the indications were sufficient to warrant further work in exploiting it. Walsh v. Mueller, 16 Mont. 180.

425. The provisions of paragraphs 50 and 51, Mining Circular (Circular of December 4,

8. General.

427. An adverse claimant may not file application for ground adversely claimed before suit. Gunnison Crystal M. Co., 2 L. D. 722.

428. An adverse claimant, after suit brought, may not file application for ground adversely claimed (i. e., until after judgment). Great Eastern M. Co. v. Esmeralda M. Co., 2 L. D. 704.

429. An applicant who fails to make entry, although he has made application and publication, must protect himself against a second applicant by filing an adverse. Seaton M. Co. v. Davis, 7 C. L. O. 147.

430. Second applicants who failed to adverse first application, because misled by error of local officers, allowed thirty days to institute suit. Hall v. Street, 3 L. D. 40.

431. A. filed application; B. adversed. Then B. filed application, and A. adversed. B.'s application was improperly allowed and was rejected. Great Eastern M. Co. v. Esmeralda M. Co., 2 L. D. 704.

432. Where the notices of application for patent were sufficiently definite in the matter of description to cause an adverse claim to be filed, republication of notice will not be required because of an error in the survey of ten degrees in the course and three chains in the length of the line connecting the survey of the claim with a corner of the public surveys, but the entry may be referred to the Board of Equitable Adjudication. Walter C. Childs, 10 L. D. 173.

433. In the presence of adverse claimants who have not had legal notice, the omission of connection in the published notice cannot be cured by reference to the Board of Equi

table Adjudication. Nil Desperandum Placer, 10 L. D. 198.

434. Where entry is made, based as to one portion of the claim on the application, and as to the balance on an assignment from a successful adverse claimant, $500 expenditures must be shown on the latter portion. son M. Co., 3 L. D. 149.

435. A successful adverse claimant, seeking to make entry on a judgment, must file plat, field-notes and certificate of $500 expenditures. Albert F. Harsh, 2 L. D. 706.

436. Entry made by an adverse claimant during pendency of suit subsequently decided in his favor, and acquiesced in by the applicant, allowed to stand. Gunnison Crystal M. Co., 2 L. D. 722.

437. Entry may be allowed for the claim if the adverse claimant files a waiver. (No suit begun.) St. Lawrence M. Co. v. Albion M. Co., 4 L. D. 117; Albion Con. M. Co., 4 L. D. 376; Richmond M. Co. v. Rose, 17 Nev. 25; 27 Pac. Rep. 1105; 2 Colo. Law Rep. 7; 114 U. S. 576.

438. Where a mineral entry has been properly canceled, after service upon the claimant of record, the reinstatement thereof rests in the discretion of the General Land Office, and will be denied in the presence of an intervening adverse right. No appeal will lie from such denial. Com'r to Leadville Office, May 14, 1896, In re La Plata Blanco Lode.

439. A canceled entry will not be reinstated for the benefit of a transferee guilty of laches in presence of an intervening adverse right. United States v. Hanley, 19 L. D. 186.

440. If a mineral entry has been canceled because of defects in the proofs, it may be reinstated if the record is perfected, in the absence of any intervening adverse rights. Com'r to Denver Land Office, Oct. 10, 1895, In re Juno Lode and Mill Site.

441. If an entry is canceled after due service of notice, it will not be reinstated in the face of an intervening relocation of the claim, even if the original requirements were erroneous. Com'r to Leadville Office, June 19, 1896, In re Quartzite Lode.

442. A mineral entry canceled without proper notice to the entryman will be reinstated notwithstanding the intervention of an adverse claim by relocation of the ground after the cancellation. McGowan v. Alps Cons. M. Co., 23 L. D. 113.

444. A decision of the local office "that the entry is held for cancellation, subject to the right of further appeal," is not, when offered in evidence upon trial of adverse suit, open to objection that it does not cancel, but merely recommends cancellation. The effect of a decision of this kind is not destroyed by the use of such language. Murray v. Polglase, 17 Mont. 455; 43 Pac. Rep. 505.

445. The right to purchase land under a coal declaratory statement is not forfeited, in the absence of a valid adverse claim, by failure to make entry within the statutory period. Alfred Grunsfeld, 10 L. D. 508.

446. Failure to perfect a coal land entry during the statutory period defeats the right so to do in the presence of an intervening adverse claim. O'Gorman v. Mayfield, 19 L. D. 522.

447. Priority of right to purchase coal lands under section 2347, United States Revised Statutes, is lost, in face of an intervening adverse claim, by failure to file upon the lands within the time prescribed by law. Lezeart v. Dunker, 4 L. D. 96.

448. Where an adverse claim is compromised by allowing applicant to secure a patent, and title to both claims becomes vested in one person, he must, as to his right to follow on their dip the lodes found in the conflict, depend upon title to the patented claim. Del Monte M. & M. Co. v. New York & Last Chance M. Co., 66 Fed. Rep. 212. (Follows Flagstaff S. M. Co. v. Tarbet, 98 U. S. 463; 9 Mor. Min. Rep. 607, in the principle that the locator must establish his end line where the

lode departs from the assumed course and intersects the side line.)

449. In the absence of surface conflict, there is no adverse claim. Jacques v. Robinson, 7 C. L. O. 50.

450. Persons in possession of the surface embraced in a mining claim, though not claiming the vein or lode, are adverse claimants. Becker v. Central City Town Site, 2 C. I. O. 98.