531. All adverse claims are barred by the issuance of patent. Raunheim v. Dahl, 6 Mont. 167; 9 Pac. Rep. 892. (See S. C., 132 U. S. 260.) Wolfley v. Lebanon M. Co., 4 Colo. 112; 13 Mor. Min. Rep. 282.

532. Patent relates back to location so as to cut off intervening adverse rights. Butte City Smoke House Lode Cases, 6 Mont. 397; 12 Pac. Rep. 858.

533. Suit to vacate a mineral patent will not be recommended by the Land Department when petition therefor is based upon allegations of an adverse claim which might have been properly asserted. Thomas Starr,

2 L. D. 759.

534. The patentee of a mining claim may be declared trustee for one who failed to adverse, if such failure was caused by fraud on the part of the patentee. Seymour v. Fisher, 16 Colo. 188; 27 Pac. Rep. 240.

535. Failure to adverse (by agreement) does not make the patentee trustee for the one so filing. Ducie v. Ford, 138 U. S. 587; 8 Mont. 233.

536. Until patent issues the legal title is in the United States. Therefore, a town lot owner claiming adversely to a mining claimant cannot set up the Statute of Limitations as having begun to run before patent issued on the mining claim. King v. Thomas, 12 Pac. Rep. 865; Mayer v. Carothers, 36 Pac. Rep. 182.

537. The Statute of Limitations of Nevada constitutes a part of the local laws by which the rights between an applicant for patent and an adverse claimant are to be determined. 420 M. Co. v. Bullion M. Co., 9 Nev. 240; 3 Sawy. 634; 1 Mor. Min. Rep. 114; 11 Mor. Min. Rep. 608.

538. An adverse claim may not be asserted under the Statute of Limitations after mineral entry has been made. Rader v. Allen, 27 Oreg. 344; 41 Pac. Rep. 154.

539. Proof of title under the Statute of Limitations as provided by section 2332, United States Revised Statutes, may be submitted where patent is sought either for lode or placer claims. Circular, June 8, 1883, 2 L.

D. 725.

540. The title of a mineral claimant may be questioned only by one claiming adversely. Lorenz v. Waldron, 96 Cal. 243; 31 Pac. Rep. 54. 541. One having no title to a mining claim will not be heard to attack the title of an

other thereto.

Omar v. Soper, 11 Colo. 380; 18 Pac. Rep. 443; 15 Mor. Min. Rep. 496. 542. Neither party in an adverse suit can gain rights by acts performed subsequent to the filing of the adverse claim. Moxon v. Wilkinson, 2 Mont. 421; 12 Mor. Min. Rep. 602.

543. A protestant who alleges an adverse interest is entitled to the right of appeal. Northwestern Lode, 8 L. D. 437.

544. Protestants have no right of appeal in the absence of an adverse claim. Secretary, July 21, 1879; Kemp v. Starr, 6 C. L. O. 3.

ing claims and adverse claimants can be par545. Only applicants for patents for min

ties to an action in court under sections 2325 and 2326, United States Revised Statutes. Mont Blanc Cons. Gravel M. Co. v. De Bour, 61 Cal. 364; 15 Mor. Min. Rep. 286; 9 C. L. O. 205.

546. An adverse claimant is not barred from asserting his claim by the allowance of entry without legal notice of application for patent, and where he sets up such an allegation of non-compliance with law in a protest, he has such an interest as entitles him to appeal from the action of the General Land Office dismissing his protest. Bright v. Elkhorn M. Co., 8 L. D. 122.

547. A notice of application for a mineral patent that fails to connect the claim with the public surveys or a United States mineral monument is insufficient, and the entry allowed on such notice may not be referred to the Board of Equitable Adjudication, in the presence of the protest of persons alleging adverse claims, but republication of notice will be required. Nil Desperandum Placer, 10 L. D. 198.

548. Where the survey of a mining claim and the published notice based thereon are erroneous in describing the claim as being in a county other than the one in which it is situate, to the injury of adverse claimants, an amended survey and republication will be required. Henry v. Castner, 17 L. D. 565.

549. Republication of notice of application for patent must be accompanied by posting of notice in the local land office, and of notice and plat upon the claim, as in the first instance, with the same rights to adverse claimants. American Flag Lode, 6 L. D. 320.

550. To bar the rights of adverse claimants notice of application must be given for sixty days, concurrently, by publication, post

551. An error in the description, making the published notice inconsistent with itself, should put an adverse claimant on his guard, and will not be deemed fatal unless it is capable of misleading. Equator M. & Sm. Co., 2 C. L. O. 114.

552. A defaulting adverse claimant may

protest that the law has not been complied with. McMurdy v. Streeter, 1 C. L. O. 34.

553. A locator has all lodes, the apexes of which are inside his location, to which no adverse right had attached at the date of his location. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529.

554. A peculiar relocation of a mining claim considered and held to be an adverse claim. Ophelia Pope Lowe (review), 9 C. L. O. 192.

555. An adverse location made on a legal holiday questioned. McNeill v. Pace, 3 L D.

267.

556. An adverse locator must show aban

patent for the land not in conflict, without waiving his possessory right to the excluded portion. Black Queen Lode v. Excelsior No. 1 Lode, 22 L. D. 343.

560. A mineral claimant may temporarily exclude part of his claim from his application to purchase and entry without waiving his right thereto, if such exclusion be caused by Co., 22 L. D. 8. (Citing Branagan v. Dulaney, assertion of adverse rights. Aspen Cons. M.

2 L. D. 744.)

561. The exclusion from an application for patent of a portion of the claim which is included in a prior application, and against which the second applicant has filed an adverse, does not amount to an abandonment. Rebellion M. Co., 8 C. L. O. 105.

562. If an adverse claim is filed against an application for patent for two contiguous claims, directed against only one of said claims, the applicant may take entry of the claim not covered by the adverse. Com'r to Marysville, Cal., Office, July 10, 1896.

563. A waiver of an adverse by the party

Coleman v. Curtis, 12 Mont. 301; 30 Pac. Rep. 266.

557. The applicant for patent cannot waive an adverse claim by excluding from his application the area covered by the adverse claim, and so vest the Land Department with jurisdiction to patent the remaining portion

of his claim. The adverse claim can be waived only by the one setting it up. But if the Land Department does so proceed there is no cause of complaint by the adverse claimant, and it is only a question between the Land Department and the applicant for patent. Last Chance M. Co. v. Tyler M. Co., 157 U. S. 683. (Reversing Ct. Ct. of Appeals, 7 U. S. App. 463; 54 Fed. Rep. 284; 9 U. S. App. 613; 61 Fed. Rep. 557.) Antelope Lode, Sickel's Min. Dec. 169. Contra, O. D. Lambard, 3 C. L. O. 194; Sacramento M. Co. v. Last Chance No. 2 Lode, 3 C. L. O. 66.

558. A waiver of an adverse claim is effective when filed in the local office, without reference to pending suits. St. Lawrence M. Co. v. Albion Cons. M. Co., 4 L. D. 117; Albion Cons. M. Co., 4 L. D. 376.

559. An applicant for a mineral patent may make entry of his claim exclusive of

right under the application. Iron Queen Lode v. Codfish Balls Lode, Com'r, July 14, 1882.

564. Parties with conflicting claims may effect a compromise, but such agreements cannot be recognized by the Land Department unless held equivalent to a judgment of a court. D. D. Belden, 9 C. L. O. 51.

565. Withdrawal of adverse, compromise forms for. Parley's Park S. M. Co. v. Kerr, 130 U. S. 256.

566. An adverse claimant may show abandonment of any one of several locations embraced in an application. Good Return M. Co., 4 L. D. 221.

567. An application for a patent for a mining claim withdraws the same from further application, and the conflicting claimant can only protect his right by adverse. Com'r to Montgomery Blair, Sept. 27, 1880.

568. In case of an amicable adjustment of adverse interests, a survey will be required to show the compromise line and the exterior boundaries. Com'r, Aug. 18, 1874.

569. A discrepancy between an adverse claim as filed and accepted in the local office, and that upon which suit is instituted, will not warrant resumption of proceedings by the

Land Department during the pendency of the suit in court. Bay State G. M. Co. v. Trevillion, 10 L. D. 194; Jamie Lee Lode v. Little Forepaugh Lode, 11 L. D. 391.

570. A difference in the name (apparently through clerical error) of the adverse claimant as presented in the adverse claim filed in the local office, and as shown by proceedings in court, will not warrant the dismissal of the adverse by the Land Department. Bay State G. M. Co. v. Trevillion, 10 L. D. 194.

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

572. An adverse which is bad on general demurrer should be rejected. City Rock Lode v. King of the West Lode, 1 C. L. O. 146.

573. An adverse claim was rejected because the adverse location was made a few

days prior to the expiration of published notice, and because the allegations did not properly constitute an adverse claim. Smead v. Deadwood M. Co., 7 C. L. O. 50. Contra, Ovens v. Stephens, 9 C. L. O. 190.

574. Instructions as to adverse claims. Circular, Dec. 10, 1880, 9 C. L. O. 148; Circular, June 8, 1883, 10 C. L. O. 191.

575. An appeal will properly lie from the rejection of an adverse claim. Waterhouse v. Scott, 13 L. D. 718.

578. Fees for filing an adverse are not required if the adverse is rejected. Waterhouse v. Scott, 13 L. D. 718.

577. If a successful adverse claimant assigns the ground in conflict to applicant, $500 must be shown to have been expended on the conflict. Jackson M. Co., 3 L. D. 149.

578. The survey of an adverse claim is not required by the law or official regulations to be authorized by or to receive the approval of the Surveyor General. Com'r to Theodore Wagner, May 10, 1881.

579. Certificate of the clerk of the district court that no suit is pending involving the claim filed in lieu of the judgment roll is satisfactory. Gold Blossom Quartz Lode, 11 C.

L. O. 100.

580. Mining of a claim may be temporarily restrained pending settlement of controversy as to title in a court of law. Bishop v. Baisley, 41 Pac. Rep. 936.

581. Papers in a case may be returned to the local officers to be produced in court. Moffat v. Compromise Lode, 8 C. L. O. 54.

582. Applicants have the right to examine all protests and adverse claims filed in the local office. Papers cannot be removed from the office. Com'r to Salt Lake Office, April 4, 1873.

583. "The strict rule of pleading which formerly required exact accuracy in the description of premises sought to be recovered (on adverse suit) has, in modern practice, been relaxed, and a general description of the property held to be good. The provisions of state statutes as to the description of the premises by metes and bounds have been held to be only directory, and a description by name where the property is well known is often sufficient." Glacier Mountain S. M. Co. v. Willis, 127 U. S. 471.

584. A. and B. claim the same vein under

conflicting locations. A verbal agreement was made that A. should obtain patent and convey a one-half interest to B., the expense to be borne equally. On suit to compel specific performance, such agreement held to be within the Statute of Frauds; that relinquishing disputed possession and simply refraining from filing an adverse claim constituted no part-performance, and that even a part payment of the share of expenses of patent could not avail plaintiff, for the reason that there was no such mutuality of obligation in the agreement as would have enabled the defendant to compel such payment had the plaintiff seen fit to refuse it. Ducie v. Ford, 8 Mont. 233; 138 U. S. 587.

585. After application for patent and pub lication of notice thereof and before entry, a claim may be relocated for abandonment, and upon a showing of such abandonment and relocation the application 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.

586. Where, after publication of notice of application for patent and before entry, a mining claim is relocated by a stranger, for failure on part of the applicant to make the required annual expenditure, and such failure and relocation are shown at a hearing, the entry will be canceled and the parties left to litigate their conflicting claims in

for a patent for the placer-claim, with the statement that it includes such vein or lode, and in such case a patent shall issue for the placer-claim, subject to the provisions of this chapter, including such vein or lode, upon the payment of five dollars per acre for such vein or lode claim, and twenty-five feet of surface on each side thereof. The remainder of the placer-claim, or any placer-claim not embracing any vein or lode-claim, shall be paid for at the rate of two dollars and fifty cents per acre, together with all costs of proceedings; and where a vein or lode, such as is described in section twenty-three hundred and twenty, is known to exist within the boundaries of a placer-claim, an application for a patent for such placer-claim which does not include an application for the vein or lode claim shall be construed as a conclusive declaration that the claimant of the placerclaim has no right of possession of the vein or lode claim; but where the existence of a vein or lode in a placer-claim is not known, a patent for the placer-claim shall convey all valuable mineral and other deposits within the boundaries thereof. 17 Stat. 94; 19 Stat. 52; sec. 2333, U. S. Rev. Stat.

II. REGULATIONS.

Under sec. 2329.

52. The proceedings to obtain patents for claims usually called placers, including all forms of deposit, excepting veins of quartz or other rock in place, are similar to the proceedings prescribed for obtaining patents for vefn or lode claims; but where said placer claim shall be upon surveyed lands, and conforms to legal subdivisions, no further survey or plat will be required, and all placer mining claims located after May 10, 1872, shall conform as nearly as practicable with the United States system of public-land surveys and the rectangular subdivisions of such surveys, and no such location shall include more than twenty acres for each individual claimant; but where placer claims cannot be conformed to legal subdivisions, survey and plat shall be made as on unsurveyed lands. But where such claims are located previous to the public surveys, and do not conform to legal subdivisions, survey, plat, and entry thereof may be made according to the boundaries thereof, provided the location is in all respects legal.

53. The proceedings for obtaining patents for veins or lodes having already been fully given, it will not be necessary to repeat them here, it being thought that careful attention thereto by applicants and the local officers will enable them to act understandingly in the matter and make such slight modifications in the notice, or otherwise, as may be necessary in view of the different nature of the two classes of claims, placer claims being fixed, however, at two dollars and fifty cents per acre, or fractional part of an acre.

62. The regulations herein before given as to the manner of marking locations on the ground, and placing the same on record, must be observed in the case of placer locations so far as the same are applicable, the law requiring, however, that where placer claims are upon surveyed public lands the locations must hereafter be made to conform to legal subdivisions thereof as near as practicable.

63. The first care in recognizing an application for patent upon a placer claim must be exercised in determining the exact classification of the lands. To this end the clearest evidence of which the case is capable should be presented.

(1) If the claim be all placer ground, that fact must be stated in the application and corroborated by accompanying proofs; if of mixed placers and lodes, it should be so set out, with a description of all known lodes situated within the boundaries of the claim. A specific declaration, such as is required by section 2333, Revised Statutes, must be furnished as to each lode intended to be claimed. All other known lodes are, by the silence of the applicant, excluded by law from all claim by him, of whatsoever nature, possessory or otherwise.

(2) Section 2395, Revised Statutes (subdivision 7), requires the surveyor to "note in his field books the true situation of all mines, salt licks, salt springs, and mill seats which come to his knowledge; " also "all water-courses over which the lines he runs may pass." It further requires him to "note the quality of the lands." These descriptive notes are required by subdivision 8 to be incorporated in the plat by the surveyor-general.

(3) If these duties have been performed, the public surveys will furnish a reasonable guide to the district officers and to claimants in prosecuting their applications. But experience has shown that great neglect has resulted from inattention to the law in this respect, and the regular plats are of very little value in the matter. It will, therefore, be required in the future that deputy surveyors shall, at the expense of the parties, make full examination of all placer claims surveyed by them, and duly note the facts as specified in the law, stating the quality and composition of the soil, the kind and amount of timber and other vegetation, the locus and size of streams, and such other matters as may appear upon the surface of the claim. This examination should include the character and extent of all surface and underground workings, whether placer or lode, for mining purpose.

(4) In addition to these data, which the law requires to be shown in all cases, the deputy should report with reference to the proximity of centers of trade or residence; also of wellknown systems of lode deposit or of individual lodes. He should also report as to the use or adaptability of the claim for placer mining: whether water has been brought upon it in sufficient quantity to mine the same, or whether it can be procured for that purpose; and, finally, what works or expendi