An application for a mineral patent cannot be allowed where the description of the claim in the published notice of application is not in accordance with the official field-notes of survey. Hoffman v. Venard, 14 L. D. 45 (1892).

The published notice of application is sufficiently definite in the matter of showing the connection of a mining claim with the public survey where it identifies said claim by connecting the same with a corner of a patented town site, which is also the corner of a patented placer claim, both of which are connected with a United States mineral monument. Eugene McCarthy, 14 L. D. 105 (1892).

Publication in a newspaper 125 miles from the claim, when there was a newspaper published 25 miles therefrom, is not a compliance with the law. The applicant will under such circumstances be required to begin anew. Condon v. Mammoth M. Co., 14 L. D. 138 (1892).

Where the published notice of application is not sufficiently explicit in the matter of description, but the posted notice is in due form, the defect may be cured by equitable action in the absence of protest or adverse claim. Alabama Quartz M., 14 L. D. 563 (1892); Silver King Q. Mine, 11 L. D. 234 (1890); Mimbres M. Co., 8 L. D. 457 (1889).

"Unquestionably, under this statute, when several newspapers are published in the same town or city, the register may designate whichever in his judgment will best subserve the public interests, and which will give the widest notice to the public that the entrymen are seeking title to a mine. From these views it follows that in this matter the register has some discretion in the designation of the newspaper as to its established character as a newspaper, its stability, and general circulation, and the like. But it is a legal discretion, and in its exercise his act is certainly subject to review and control by your office (General Land Office) and the Department; and where it is shown that he has abused such discretion, your office as well as the Department has the power to set aside his action in order to avoid injustice or unfair discrimination, or an ignoring of the provisions of the law and the rules and regulations of the Department." It is abuse of discretion to pass over a newspaper published in the nearest town to one published in a town more remote. Condon v. Mammoth M. Co., 15. L. D. 330 (1892); Erie Lode v. Cameron Lode, 10 L. D. 655 (1890).

The newspaper published nearest the claim in an air line, was published in a town between which and the claim a mountain intervened. The register designated a paper published in a town a little more distant, but communication with which was easier and quicker. This was a proper exercise of discretion. Bretell v. Swift, 16 L. D. 178 (1893).

Notice of application must be posted during the period of publication in the local office having jurisdiction. Land having been transferred from G. district to M. district, after filing of application, but before publication, posting in G. office was ineffectual, and a republication was ordered. Frederick N. Williams, 17 L. D. 282 (1893).

"The consensus of the rules and decisions seems to be that the notices must be published in an established newspaper with a bona fide circulation in the neighborhood of the claim; one that is printed

at the place of its publication, and is, in his best judgment, permanently established and recognized by the community, its advertisers and readers, as being a fixture. I take it that newspapers of this character are to be selected in preference to those predatory journals that are frequently found in new localities, established oftentimes for the sole purpose of getting the Land Office notices, and ready to migrate to the newer settlement when business becomes slack' from the local office. In the exercise of this function the register is clothed with a discretion which has been termed 'judicial discretion,' subject, of course, to review. In the lawful exercise of that discretion, he may select a newspaper that he conceives best for the purpose of giving the greatest publicity to the notice, even though it may not be nearest the land; and especially would this be true if the one nearest the land, in his opinion, did not meet the requirements, as to permanency and general circulation, as defined above." Bretell v. Swift, 17 L. D. 558 (1893).

The published notice will not be held insufficient on account of failure to give the names of adjoining claims where the numbers of these are given. This is practically as satisfactory for the purposes of notice, unless there is some requirement, statutory or otherwise, to the contrary. Whitman v. Haltenhoff, 19 L. D. 245 (1894).

Where due proof of posting is made, and it appears that the protestant had actual notice, an allegation that the posted notice could not be found on the claim does not call for republication. Byrne v. Slauson, 20 L. D. 43 (1895).

Placing plat and notice in an open box surrounded and covered by stones at a distance of two hundred feet from the discovery shaft, was held not to be posting in a conspicuous place. Ferguson v. Hanson, 21 L. D. 336 (1895).

The notice must state the names of the nearest or adjacent claims and the place of record of the location, giving book and page. Gowdy v. Kismet G. M. Co., 22 L. D. 624 (1896); Parsons v. Ellis, 23 L. D. 505 (1896).

D. Entry.

At the expiration of the publication period, the applicant is prepared to make entry. This he does by filing proof of continuous posting and proof of publication, proof of sums paid by him in the prosecution of his application, and his application to purchase. These are the entry or final papers. L. O. Regs., pars. 41, 42. The affidavits must be made by a party owning the mine or a part thereof at the time. If no adverse claim has been filed, the applicant may then pay for the land. The register then issues a final certificate of entry, and the receiver issues his receipt in duplicate, one of which is filed with the papers, and the other is delivered to the applicant. The papers are then forwarded to the General Land Office. L. O. Regs., pars. 42, 93, 94, 95. Upon

the payment of the purchase-money, the applicant's title becomes complete, and when the patent issues, it relates to the date of entry.1

LAND OFFICE DECISIONS.

When a decision is rendered by which a claim erroneously entered is reduced in size, the purchase-money will be returned to the extent necessary to make the payment meet the requirement of the law. Copp, 76 (1870).

The affidavit of continuous posting of plat and notice on the claim must be made by one of the parties owning the mine at the date of entry at the local office. Kempton Mine, Copp, 154 (1875).

Objections that the publication of notice was not made for ninety days (act of 1866), and that the proof of posting notice and diagram did not show when, where, or for what periods the same were posted, are too late when they come after patent issued. They will not, therefore, be considered upon an application for proceedings to set aside the patent. Prince of Wales, Copp, 167 (1875).

On application for proceedings to annul a patent, proof of publication which states that notice was published for a period of ninety days, commencing April 15, 1871, is prima facie sufficient; that notice and diagram were posted five days after publication was commenced is an irregularity only, and not fatal. Wandering Boy, Copp, 169: (1875).

An affidavit that deponent had often been upon the land and did not see notice, can have no weight against a positive affidavit that the notice was posted during the entire period of publication. Olathe Placer, Copp, 287 (1880).

Where a party applies for a patent, and duly posts and publishes a notice, but fails for a long period to pay the purchase-money and make entry at the Land Office, and in the meantime the land is relocated under the provisions of Rev. Stats. 2324, there is nothing to prevent the relocator from making entry thereof except the filing of an adverse elaim. If the first locator fails to do this, the second application will be allowed to proceed as though no prior application had been made. Seaton M. Co. v. Davis, Copp, 296 (1880).

Due compliance with the law and regulations appearing, except in the matter of furnishing proper proof of posting, and there being no reason to question the good faith of the applicant, the entry may be referred to the Board of Equitable Adjudication after new advertisement, posting, and proof thereof. Connell Lode, 6 L. D. 717

(1888).

It is the duty of the register to furnish proof of posting in the local office, and in the absence of such proof the applicant may be permitted to furnish satisfactory evidence as to the fact of posting. Mimbres M. Co., 8 L. D. 457 (1889).

It is too late to raise a technical objection to the affidavit of posting, after action on said affidavit and the allowance of the entry.

1 On this subject see Div. III., this chapter.

The affidavit of posting may be properly made by a claimant whose knowledge of the fact is derived from personal observation at various times of the plat and notice as posted, and from such information with respect thereto as would be accepted by a reasonably cautious man. Bright v. Elkhorn M. Co., 9 L. D. 503 (1889).

The value of testimony as to compliance with the law in the matter of posting is not diminished by the fact that the witness was occasionally absent from the mine. The Department never has required, and it would be most unreasonable for it to require, proof that the notice and plat remained posted each hour of each day of twenty-four hours during the prescribed period of sixty days. Tangerman v. Aurora Hill M. Co., 9 L. D. 538 (1889).

The publication of an application for a patent in a weekly paper requires ten insertions, but where the proof shows that such publication was made under a former practice that recognized nine insertions as sufficient, the entry may be, in the absence of an adverse claim, referred to the Board of Equitable Adjudication for its action. Oro Placer Claim, 11 L. D. 457 (1890).

E. Affidavits and Proofs.

All the affidavits required in proceedings for obtaining a patent must be made before the register and receiver, or an officer authorized to administer oaths within the land district where the claims are situated, except that non-resident applicants may make proof of citizenship by oath or affidavit before the clerk of any court of record or any notary public. Where the applicant is a non-resident, proofs may be made by an authorized agent.3

LAND OFFICE DECISIONS.

Under Rev. Stats. 2335, an officer authorized to administer oaths within the land district may administer the same outside of the district, if within his jurisdiction. Corning Tunnel v. Slide Lode, Copp, 208 (1877).

Where there is no adverse claim or protest to an application for a patent, no parties being interested except the applicant and the government, the applicant will be allowed to substitute proper affidavits for defective ones. Copp, 266 (1880).

The affidavits required of an applicant for mineral patent cannot be executed by an agent or attorney if the applicant is a resident of, and, at the date of the application, within, the land district where the claim is situated. This rule has no exceptions. Rico Lode, 8 L. D. 223 (1889).

1 Rev. Stats. 2335.

2 Act April 26, 1882, sec. 2.

8 Act Jan. 22, 1880, sec. 1.

F. Action by the Land Office and Issue of Patent.

The papers being all in, they are transmitted by the register to the General Land Office, together with a certificate that the notice was duly posted in the office. L. O. Regs., par. 43.

The entire series of papers is reviewed in the General Land Office. In this examination the Commissioner is not confined to the papers in the case, but may go outside of them, and, if necessary, order a hearing. In the absence of defects, the patent is issued in due course. If fatal defects are discovered, the entry is cancelled; if curable defects are discovered, the applicant is given an opportunity to remedy them. A cancellation places the applicant in the position he occupied before application, in no way affecting his possessory title.

Where the entry embraces land already patented, or covered by a prior pending application, it will be held for cancellation as to the extent of the conflict, and a patent issued for the balance. In practice, at present, all conflicts are marked on the survey, but the exclusion is not made until the papers are passed on at Washington. The previous practice required the exclusion before application, the Land Department refusing consideration to applications conflicting with prior applications; but this is no longer followed.

The patent should contain only terms of conveyance, with recitals showing a compliance with the law and the conditions which it prescribes. There is no authority in the Land Department to insert exceptions or reservations, by which the grantee's estate is abridged or restricted in any other way than it would be without such expression in the patent. It is, however, customary to except ground which conflicts with previous patents.

The patent will issue to the applicant, unless the evidence shows that his title has vested in some one else pending the proceedings, or that he is acting in a fiduciary capacity, in which event it will issue to the grantee, heir, devisee, or cestui que trust, as the case may be.

Where patent has issued, it is out of the control of the Department, and cannot be recalled; but if it contain an error, it may be surrendered and cancelled, and a new patent issued.