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Office, are, during such employment, prohibited from entering or becoming interested in, directly or indirectly, any public lands of the United States. Circular of Sept. 15, 1890, 11 L. D. 348.

198. The construction of law by the Land Department is of weight in the courts only when there is an ambiguity in the statute. Northern Pacific R. R. Co. v. Sanders, 47 Fed. Rep. 604.

199. A decision of the Land Department is not reviewable in the courts except for errors of law or in case of fraud. Iron Silver M. Co. v. Campbell, 17 Colo. 267; 29 Pac. Rep. 513. See S. C., 135 U. S. 286.

PARTITION.

1. The right to a mining claim held by possessory title is such property as may be made the subject of partition. Gillett v. Gaffney, 3 Colo. 351; Sears v. Taylor, 4 Colo. 38; Filmore v. Reithman, 6 Colo. 124; McKeon v. Bisbee, 9 Cal. 137; 2 Mor. Min. Rep. 309; Watts v. White, 13 Cal. 324; Merritt v. Judd, 14 Cal. 59; Lowe v. Alexander, 15 Cal. 302; Hughes v. Devlin, 23 Cal. 501; 12 Mor. Min. Rep. 241; Spencer v. Winselman, 42 Cal. 479; Dall v. Confidence S. M. Co., 3 Nev. 531; Aspen M. & Sm. Co., 28 Fed. Rep. 220 (Colo.). 2. Possessory title to a mining claim is not such a title as may be made the subject of a bill for partition, unless so provided by a State statute, in which case the bill should be filed in a State court. Strettell v. Ballou, 3 McCrary, 46.

PARTNERSHIP.

1. One who claims under a location may not defeat the right of one of the locators to a share of the proceeds of the mine by alleging alienage of such locator. Billings v. Aspen M. & Sm. Co., 52 Fed. Rep. 250.

2. Tenants in common who unite to work a claim are for this purpose partners and may bind each other as such. Skillman v. Lachman, 23 Cal. 198; Duryea v. Burt, 28 Cal. 569; Dougherty v. Creary, 30 Cal. 300; Settembre v. Putnam, 30 Cal. 493; Charles v. Eshleman, 5 Colo. 107; Manville v. Parks, 7 Colo. 128; 2 Pac. Rep. 212; 15 Mor. Min. Rep. 565; Higgins v. Armstrong, 10 Pac. Rep. 232.

3. A partnership which exists between coowners or co-lessees who work a mining claim in common is a particular and limited one. Meagher v. Reed, 24 Pac. Rep. 681; Crawshaw v. Maule, 1 Swanst. 495; Fereday v. Wightwick, 1 Russ. & M. 45; Williams v. Attenborough, 1 Turn. & R. 70; Dickinson v. Valpy, 10 B. & C. 128; Charles v. Eshleman, 5 Colo. 107; Manville v. Parks, 7 Colo. 128; 2 Pac. Rep. 212; 15 Mor. Min. Rep. 565; Skillman v. Lachman, 23 Cal. 198; Duryea v. Burt, 23 Cal. 569; Kahn v. Central Smelting Co., 102 U. S. 641; Bissell v. Foss, 114 U. S. 252; Lamar v. Hale, 79 Va. 147; Rock on Mines, 574.

4. Where several tenants in common unite and co-operate in working a mine, they form what is termed a mining partnership, and are governed by rules relating to ordinary partnership, and also rules peculiar in themselves, one of which is that one person may convey his interest in the mine and business without dissolving the partnership. Skillman v. Lachman, 23 Cal. 198; Kahn v. Central Sm. Co., 102 U. S. 641.

5. A delectus personce, which is essential to constitute an ordinary partnership, has no place in mining associations. Duryea v. Burt, 28 Cal. 569; Settembre v. Putnam, 30 Cal. 493; Taylor v. Castle, 42 Cal. 367; Kahn v. Central Sm. Co., 102 U. S. 641.

6. As to what constitutes a mining partnership, see Duryea v. Burt, 28 Cal. 569; Dougherty v. Creary, 30 Cal. 290.

7. One of several mining partners may withdraw without dissolving the partnership, but he may sue for his share of the product of the mine. Slater v. Haas, 25 Pac. Rep. 1089.

8. After the termination of an agreement to prospect for and locate mining claims, none of the parties are bound to perfect incomplete locations for the benefit of others, but may do so for themselves. Page v. Summers, 70 Cal. 121; 12 Pac. Rep. 120; 15 Mor. Min. Rep. 617.

9. A. and B. are mining and prospecting partners. A discovery is made, but no location. After dissolution of partnership, A. makes a location. Held, that B. has no interest in this location. Page v. Summers, 70 Cal. 121; 12 Pac. Rep. 120; 15 Mor. Min. Rep. 617; McLaughlin v. Thompson, 29 Pac. Rep. 816.

10. The possession of one partner or tenant in common of a mining claim is the possession of all. Waring v. Crow, 11 Cal. 366; 5 Mor. Min. Rep. 204.

11. An agreement between a miner and a mill owner, whereby the miller is to take $25 per ton out of proceeds for milling, and then the miner is to take cost of mining, thereafter any surplus being divided between them. does not constitute the miner and miller partners. Vietti v. Nesbitt, 41 Pac. Rep. 151.

12. A. gives B. an undivided interest in a right to mine a claim. This is not real estate, which is properly subject to a suit for partition. It makes A. and B. qualified partners. Any action must be based on this fact. Smith v. Cooley, 2 Pac. Rep. 880; Wheeler v. West, 11 Pac. Rep. 871.

13. Partnership is not constituted by an agreement of A. to pay B. wages and to give him an interest for a discovery of a paying mine. Berry v. Woodburn, 107 Cal. 504; 40 Pac. Rep. 802.

14. A contract to work a claim on shares does not constitute the owner and the operator partners. Stuart v. Adams, 26 Pac. Rep. 970.

15. Partnership is not formed by a mere agreement to acquire a mining lease for the purpose of working a claim as partners. Meagher v. Reed, 24 Pac. Rep. 681.

16. Death or bankruptcy of one of the members of a mining partnership does not dissolve such partnership. Kahn v. Central Sm. Co., 102 U. S. 641.

17. In the absence of a special contract there is no relation of trust between tenants in common of mining property, who are partners only for the purpose of developing the same, which prevents one from receiving a higher sum for his interest than the others. Harris v. Lloyd, 11 Mont. 390; 28 Pac. Rep. 736.

18. Co-tenants of a mining claim are part ners for the purpose of working the claim, but may sell their interests to any one else, whereupon the grantee would become a partner. First National Bank v. Bissell, 4 Fed. Rep. 694.

19. The agreement of a mortgagor to apply the proceeds of a claim on a mortgage does not constitute a partnership between the mortgagor and the mortgagee. Chung Kee v. Davidson, 36 Pac. Rep. 519.

20. Partnership is not constituted by an oral agreement to locate claims as partners where no joint capital is used. Craw v. Wilson, 40 Pac. Rep. 1076.

PROTEST.

1. The allegation by a protestant that the

location of a mining claim applied for was invalid because of conflict with a prior location of the protestant is simply the allegation of an adverse claimant, which may be tried only in the manner prescribed by section 2326, United States Revised Statutes, in a court of competent jurisdiction, and such an allegation by a protestant will be given no weight before the Land Department. Warren Mill Site v. Copper Prince Lode, 1 L. D. 555; Bodie Tunnel & Mining Co. v. Bechtel Cons. M. Co., 1 L. D. 584; Whitman v. Haltenhoff, 19 L. D. 245; Gowdy v. Kismet G. M. Co., 22 L. D. 624.

2. In the face of a protest, a mineral entry will be canceled where the certificate of the Surveyor General showing statutory expenditure to have been made upon the claim was not filed during the period of publication. Little Pet Lode, 4 L. D. 17, 284; Milton v. Lamb, 22 L. D. 339.

3. A protestant against a mineral entry who failed to filed 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.

4. A protest against a mineral application filed after the period of publication will not be considered by the Department on appeal unless it is shown that the protestant has an interest in the ground involved, and that the law has not been complied with by the applicant. Parsons v. Ellis, 23 L. D. 69.

5. Where a mineral entry has been allowed after due notice of application for patent, a protestant who admits the sufficiency of such notice appears solely as amicus curiæ, without right of appeal from a decision of the General Land Office dismissing his protest. Bright v. Elkhorn M. Co., 8 L. D. 122; Departmental decision of August 15, 1896, In re Johnson v. Beaufort.

6. A protestant who alleges no surface conflict of claims is not entitled to appeal from a decision of the General Land Office dismissing his protest. Smuggler M. Co. v. Trueworthy Lode, 19 L. D. 356.

7. One who simply protests against the allowance of an entry as a friend of the government is not entitled to appeal from a decision

dismissing his protest. Martin v. Baker, 6 | L. D. 763; Dotson v. Arnold, 8 L. D. 439.

8. A protestant against the issuance of a mineral patent who alleges no adverse interest appears simply as amicus curiæ, and as such has no right of appeal from a decision dismissing his protest; but if he asserts an interest adverse to the claim of the entryman, he may appeal from such decision. Bright v. Elkhorn M. Co., 8 L. D. 122.

9. 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 subject of an adverse claim or protest during the pendency of the application. Robert Hawke, 5 L. D. 131.

10. Where publication of notice of application for mineral patent was made for nine weeks only, under the Departmental practice then in force, and no rights are shown to have been injured thereby, it will not be declared insufficient on the motion of a mere protestant. Becker v. Sears, 1 L. D. 575.

11. Where a mineral entry has been allowed on satisfactory evidence of compliance with the law, the burden is upon a contestant

to show non-compliance. Hargrove v. Rob

ertson, 15 L. D. 499.

12. 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 an entry allowed on such notice may not be referred to the Board of Equitable Adjudication in the presence of a protest of persons alleging adverse claims, but republication of notice will be required. Nil Desperandum Placer, 10 L. D. 198.

13. 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.

14. When an application to enter agricultural land is made, if the locators of mining claims on the land have any objections, they must be vigilant in presenting them. The rules and regulations provide ample means for this purpose, and if the remedies are not pursued the mineral claimants will not be heard to complain. Departmental decision of March 11, 1896, In re Caribou Lode.

15. Where a mineral entry has been allowed upon a satisfactory showing of the mineral character of the land, a hearing will not be ordered on the protest of an agricultural claimant unless it be alleged that the land was agricultural in character at date of filing of mineral application for patent. Houghton v. McDermott, 15 L. D. 509.

16. Where, on testimony submitted at a hearing, it is finally decided that land is nonmineral in character, a hearing will not be ordered on the protest of another claimant who sets up nothing not considered in the first contest. Departmental decision of June 18, 1896, In re Spitzler v. Koch.

17. A protestant will not be allowed to set up possible rights of third parties as against an entryman. Bradstreet v. Rehm, 21 L. D. 30.

18. 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.

19. A protest alleging non-compliance with law on the part of an applicant for a mineral patent, must be sufficient to overcome record evidence of compliance with the law in order to warrant the ordering of a hearing. Whitman v. Haltenhoff, 19 L. D. 245.

20. 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 noncompliance with law. Nevada Lode, 16 L. D. 532.

21. In the face of a mere protest the law will be construed more liberally in favor of a claimant than in the face of a contestant asserting an adverse right. 420 Mining Co. v. Bullion M. Co., 2 C. L. O. 5.

22. A protest which sets up invalidity of the location of the claim entered will not be sufficient to warrant a hearing where the validity of said location has been established in court. An allegation of fraud must be specific. T. M. Empy, 10 C. L. O. 103.

23. A protestant who alleges that the plat and the notice of the application for patent were not posted upon the claim during the

against a mineral application or entry. Com'r to R. N. Dunn, March 17, 1893.

period of publication should show his means of knowing such fact. Com'r to Missoula Office, April 25, 1893, In re Herykaha Placer. 34. Controversies arising from private busi24. A protestant against an entry who al-ness transactions are not to be settled by the leges fraud on the part of the entryman Land Department when made the subject of should be specific as to the facts alleged to protest against an entry. Departmental deconstitute the fraud. Com'r to Glenwood cision of August 15, 1896, In re Johnson v. Springs Office, June 10, 1893, In re Lux Placer. Beaufort.

25. Questions as to entryman's title may be raised by a protestant as amicus curiæ.

Bradstreet v. Rehm, 21 L. D. 544 (on review).

26. A claimant, under a Mexican grant, must protect his rights by filing an adverse claim and instituting suit thereon. If he fails so to do he can appear only as a protestant, and as such has no right of appeal from a decision of the General Land Office dismissing his protest. McGarrahan v. New Idria M. Co., 3 L. D. 422.

27. 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.

28. The statute does not require the names of adjoining claims to be given in the notices of application for patent, and a failure so to do will be waived, even in the face of a protest, if it appears that such failure was not fraudulent and that no injury is shown to have resulted therefrom. Louisville Lode, 1 L. D. 548. Contra, Gowdy v. Kismet G. M. Co., 22 L. D. 624.

29. A protestant alleging failure of the applicant to give proper notice by publication, because the published notice failed to give the names of adjoining claims, will be dismissed where such notice stated the survey numbers of such claims. Whitman v. Haltenhoff, 19 L. D. 245.

30. A protest against an application for patent should be filed in the local land office. Com'r to A. F. Johnson, August 3, 1891.

31. A hearing to determine the character of the land covered by a mineral application, and the question of compliance with the law by the applicant, may be ordered by the local land office on protest filed. Devereux v. Hunter, 11 L. D. 214.

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35. In an action upon an adverse claim, where plaintiffs as evidence of their title had

introduced the receiver's receipt for the entry

thereof, it is admissible for the defendants to prove by decisions of the Land Department that the receipt had been canceled and set aside on the protest against the issuance of patent. Murray v. Polglase, 17 Mont. 455; 43 Pac. Rep. 505.

REPAYMENT.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled: That in all cases where it shall, upon due proof being made, appear to the satisfaction of the Secretary of the Interior that innocent parties have paid the fees and commissions and excess payunder the act entitled "An Act to amend an ments required upon the location of claims act entitled An Act to enable honorably discharged soldiers and sailors, their widows and orphan children, to acquire homesteads on the public lands of the United States,' and amendments thereto," approved March third, eighteen hundred and seventy-three, and now incorporated in section twenty-three hundred and six of the Revised Statutes of the United States, which said claims were, after such location, found to be fraudulent and void, and the entries or locations made thereon canceled, the Secretary of the Interior is authorized to repay to such innocent parties the fees and commissions and excess payments paid by them, upon the surrender of the receipts issued therefor by the receivers of public moneys, out of any money in the Treasury not otherwise appropriated, and shall be payable out of the appropriation to refund purchase money on lands erroneously sold by the United States.

SEC. 2. In all cases where homestead or timber-culture or desert-land entries or other entries of public lands have heretofore or shall hereafter be canceled for conflict, or where, from any cause, the entry has been erroneously allowed and can not be confirmed. the Secretary of the Interior shall cause to be repaid to the person who made such entry, or to his heirs or assigns, the fees and commissions, amount of purchase money, and excesses paid upon the same upon the surrender of the duplicate receipt and the

32. Action upon a mineral entry will not be suspended to allow a protest to be filed. Com'r to Geo. W. Allen, Feb. 7, 1896. 33. The local land officers are not author-execution of a proper relinquishment of all ized to demand any fees for filing a protest

claims to said land, whenever such entry shall

have been duly canceled by the Commissioner | fice on a mineral survey may not be repaid, of the General Land Office, and in all cases though unexpended, but may be applied on a where parties have paid double-minimum new survey if desired. Elijah M. Dunphy, 8 price for land which has afterwards been found not to be within the limits of a rail- L. D. 102. road land grant, the excess of one dollar and twenty-five cents per acre shall in like manner be repaid to the purchaser thereof, or to his heirs or assigns.

SEC. 3. The Secretary of the Interior is authorized to make the payments herein provided for out of any money in the Treasury not otherwise appropriated.

SEC. 4. The Commissioner of the General Land Office shall make all necessary rules, and issue all necessary instructions, to carry the provisions of this act into effect; and for the repayment of the purchase money and fees herein provided for the Secretary of the Interior shall draw his warrant on the Treasury and the same shall be paid without regard to the date of cancellation of the entries. Act approved June 16, 1880. (21 Stat. 287.)

1. Repayment will be allowed on an entry canceled for defective publication, even though republication was ordered and claimant refused to make it. Bozeman Mineral Entry No. 21, Hayward Lode.

2. Where a mineral entry is allowed upon insufficient notice of application for patent and is therefore canceled, the price paid for the land and the $10 fee paid at date of filing the application for patent will be repaid. John R. Magruder, 1 L. D. 526.

3. The allowance of a mineral entry for a mill site under the first clause of section 2337, United States Revised Statutes, without proof of the use and occupancy of the land for mining or milling purposes, is erroneous, and upon cancellation of the entry as to the mill site the purchase money should be repaid.

Hudson M. Co., 14 L. D. 544.

4. Repayment will not be made where a mineral entry has been canceled for fraud on the part of the entryman. Mary McM. Latham,

20 L. D. 379.

5. Repayment of purchase money paid in making a coal entry will not be made where the entry has been canceled for fraud. D. A. Mulvane, 15 L. D. 146.

8. Application for repayment after an entry has been held for cancellation is a waiver of the right of appeal. Departmental decision of Dec. 23, 1890, In re Unicorn Placer.

9. Where a mineral entry has been canceled, the purchase price may not be applied upon a second entry of the land by the same parties; but the purchase money must be paid upon the second entry as in the first instance. Claimants must seek relief by asking repayment of the money paid on the first entry. Com'r to Leadville Office, Sept. 12, 1896.

RESERVATION.

1. Under his authority as chief executive, the President may establish reservations embracing unappropriated mineral lands, and lands so reserved are not thereafter subject to location and purchase. Fort Maginnis Case, 1 L. D. 552. (Op. Att'y-Gen.)

2. Where a mining claim is located upon an Indian reservation, and the locator is in possession at the date the reservation is thrown open, "with the requisite discovery, with the surface boundaries sufficiently marked, with closed vein of ore, he could, by adopting what the notice of location posted, and with a dishad been done, causing a proper record to be made, and performing the amount of labor or making the improvement necessary to hold that such location and labor and improvethe claim, date his rights from that day; and ments would give him the right of possession." Noonan v. Caledonia M. Co., 121 U. S. 393. (Affirming 3 Dak. 189; 14 N. W. Rep.

426.)

3. A location of a mining claim upon land contained in an Indian reservation confers no rights upon the locator. If after such location the reservation is thrown open, such locator to retain the benefit of work done previously must relocate his claim. A regular location of the ground between the dates of the opening of the reservation and of relocation by the first occupant will defeat his right. Kendall v. San Juan S. M. Co., 144 U. S. 658. (Affirming 9 Colo. 349; 12 Pac. Rep. 198.) 7. Money deposited to cover cost of work 4. A mining claim was located while the in the United States Surveyor General's of- | land was embraced within an Indian reserva

6. Where the United States brings suit in equity to vacate a land patent for fraud in its procurement, it is not obliged to tender repayment of the purchase price paid for the land by the patentee. United States v. Trinidad Coal & Coking Co., 137 U. S. 160.

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