preclude a subsequent investigation on allegation that the mining claims thereon have been abandoned, and that the land as a present fact is mineral. Dargin v. Koch, 20 L. D. 384 (1895).

Where it is sought to show the agricultural character of land which has once been adjudged to be mineral, the agricultural claimant must allege and prove the abandonment or forfeiture of the mining claim. McCharles v. Roberts, 20 L. D. 564 (1895).

The burden of proof rests on a protestant who attacks an agricultural entry on the ground of the known mineral character of the land at date of entry, irrespective of the fact that the land may have been subsequently returned as mineral. Aspen C. M. Co. v. Williams, 23 L. D. 34 (1896).

II. ADVERSE CLAIM AND ACTION THEREON.

At the expiration of the sixty days of publication, the statute (Rev. Stats. 2325) creates the presumption that the applicant is entitled to a patent upon payment for the land, and that no adverse claim exists, unless such a claim has been filed with the register and receiver of the proper land office within the period of publication. If the applicant has complied with the law, no third party who has failed to file an adverse claim will then be heard to make objection to the issuance of the patent, except to show that the applicant has failed to comply with the requirements of the statutes. Therefore all rights and claims adverse to and conflicting with those of the applicant can be preserved only by the timely filing of adverse claims, unless they are rights which from their nature cannot be concluded or affected by the patent, if issued. A previous patentee need not file an adverse claim, nor need a previous applicant for a patent for the same claim against subsequent applications while his own is pending; nor a previous locator of a lode claim as against an application for a placer patent for ground including his lode. But such a locator, whose location was made subsequent to the date of the application for a placer patent, must file his adverse claim. So also must the patentee of a placer claim when a lode applicant claims a lode within his boundaries, and alleges that it was known at the date of the placer application.

The locator of a cross vein need not file an adverse claim, except as to the space of lode intersection, nor the locator of a vein which unites with the applicant's vein, but whose junction is unknown. The owner of an easement acquired under and protected by Rev. Stats. 2338-40, or 2477, need not protest; nor lienholders,

for they are protected by Rev. Stats. 2332. And the locator of a vein under the provisions of the act of 1866 need not do so in order to preserve his right thereto as against a patentee of a claim under the provisions of the act of 1872. One setting up a trust upon the ground that he is a co-tenant with the applicant, or that the applicant located as his agent, need not file an adverse claim against the application of the alleged trustee; and if he does so, he may not establish his equitable title in the action thereon. Generally those who hold valid government grants need not file adverse claims.

On the other hand, the holder of a title derived by judicial sale prior to the expiration of the sixty days of publication, the claimant of land as a town lot, a co-tenant who has not been joined in the application because of alleged default and consequent forfeiture of interest, and all other claimants whose title does not itself already rise to the dignity of a grant, must, in order to preserve their rights, file adverse claims in the proper land office. The policy of the law is to require all rights and equities to the premises sought to be purchased, and which are adverse to the title upon which the applicant relies, to be adjusted prior to the issuance of the patent. The right to file an adverse claim belongs to every one having a claim to an interest in the land, of whatever kind, and is not affected by the character of the land.

The adverse claim must be filed with the register and receiver of the proper district before the expiration of the period of publication. In calculating these sixty days the first day is excluded, and if the last day falls on Sunday or a legal holiday, the claim may be filed on the following day. The fact that the actual publication by reason of being made in a weekly paper runs for more than sixty days, does not extend the time within which the adverse claim must be filed. The claim is not filed until the fees therefor are paid.

The form of the adverse claim is prescribed by Rev. Stats. 2326. It must be upon oath of the claimant or claimants, and must show the nature, boundaries, and extent of the adverse claim to each application. A second application will be treated as an adverse claim. What is necessary to be done in order to satisfy the act and the Department is set out in L. O. Regs., pars. 82-88. Objections to the form of the claim must be made in the Land Office. The court, in an action on an adverse claim, has

no jurisdiction to determine whether the claim conforms to the Land Office rules. It has nothing to do with the Land Office proceedings.

From the decision of the register and receiver on these questions there is an appeal to the Commissioner of the General Land Office. But a failure to comply with the regulations may be, upon sufficient excuse, treated as a mere irregularity, and not as an incurable defect. The Department, however, may not waive any of the statutory requirements, nor may the parties dispense with them by agreement. If the decision of the Land Department is adverse to the sufficiency of the claim filed, the Department proceeds as though it had not been presented. When, however, an adverse claim is regular and is duly and properly filed, it becomes "the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with diligence to final judgment." (Rev. Stats. 2326.) The suit may be brought before the filing of the adverse claim, if the latter is done within the proper time. A United States Circuit Court is a court of competent jurisdiction, as the questions involved arise under the laws of the United States, and the United States, being substantially a party, are entitled to have their rights determined in their own courts. The State courts are also courts of competent jurisdiction if they have jurisdiction over the land in question. The actions for the determination of the question of the right of possession under this provision must be instituted according to the forms and practice within the jurisdiction where the suit is begun. The remedial law of that jurisdiction is applicable, and consequently the State Statute of Limitations. In such actions only those who have filed claims in the Land Office and show a legal interest can be made parties, or can intervene as parties. One who has failed to file an adverse claim cannot attack the applicant's certificate on the ground that an action is pending upon an adverse claim of another under whom he claims no right.

The filing of a complaint is the commencement of proceedings; but this question may be decided by each court for itself, for its decision by a State court is not a federal question. When the defendant has answered and gone to trial, it is too late to raise

the objection that the complaint was not filed within the time required by the statute. Where the action is for any reason dismissed, it is at an end, and cannot be reinstated. Nor will another action relate to the date of the first. If it is not begun within the statutory thirty days, it is without effect on the action of the department.

Since an action upon an adverse claim is subject to the rules of procedure of the particular jurisdiction in which it is brought, upon those rules will depend the form of action and the nature and contents of the pleadings; but there are certain essentials of the action arising from the nature of the question to be determined which are equally necessary in every jurisdiction. In order that either party to the action should prevail, it is necessary that he should establish a good possessory title, a compliance with the statutes, State and Federal, and local mining rules and regulations in force relating to the location and holding of mining claims. This compliance must consequently be alleged in the complaint, as well as the possession or ouster of the plaintiff. There must also be allegations that the adverse claim was filed in time and the suit begun in time. Otherwise the court is unable to construct a judgment and give the necessary information to the Land Office. These allegations may be traversed. But whether or not the adverse claim is regular or sufficient is for the Land Department, whose determination is not subject to the control of the court, and if the allegation that the adverse claim has been filed is not traversed, the plaintiff will not be required to prove it.

The action may be either at law or in equity, as may be appropriate under the peculiar circumstances of each case. As the action is a possessory one, it must take upon itself one of two forms, according as the plaintiff is in or out of possession.2 In the latter case, proof of possession must be made; in the former, proof of the right of possession is sufficient. But mere title by occupancy is not enough to satisfy the terms of the act; a valid location which entitles the claimant to possession against the United States, as well as the other claimant, must be alleged and proved.

1 The view of Judge Ross in Doe v. Waterloo M. Co., 43 Fed. 219, that a bill in equity is the only proper form of action, is overruled by Perego v. Dodge, 163 U. S. 160.

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2 Montana, Code Civ. Proc. 1895, sec 1322; New Mexico, Act Feb. 1, 1887, p. 204; Act Feb. 28, 1889, p. 276.

Citizenship must be alleged and proved. So, if the location was made by a corporation, must its organization and the qualification of its members. The compliance with local regulations must be established. The claimant must in every particular establish his right to a patent. If his own admissions preclude a discovery by him, he may not recover. Whether the requirements of the statutes and regulations have been complied with is a question of fact. The plaintiff is not confined to such title to the ground in controversy as he had at the beginning of the action. He may by supplemental complaint bring in other adverse claims, though his rights thereunder were acquired after the action was begun.

An action on an adverse claim differs from other possessory actions in that a failure on the part of the plaintiff to establish his case does not necessarily result in a verdict and judgment for the defendant. It is provided by the act of Congress of March 3, 1881, "that, if in any action brought pursuant to section 2326 of the Revised Statutes, title to the ground in controversy shall not be established by either party, the jury shall so find, and judgment shall be entered according to the verdict. In such case costs shall not be allowed to either party, and the claimant shall not proceed in the Land Office nor be entitled to a patent for the ground in controversy until he shall have perfected his title." The effect of this act is that each party is an actor, and must establish his claim not only against his adversary, but also against the government. There are no presumptions and no burden of proof. If no evidence of title is given on either side the case will be dismissed. A verdict generally for plaintiff or defendant is not good. The jury must find which party, if either, is entitled to possession by virtue of a compliance with the statutes and regulations governing the location of mining claims. Where the jury find that neither party has proven title, both parties are left without right to a patent for the premises in controversy. It is, however, a sufficient defence to set up that the defendant's right to a patent was not adversed by a claim under which the plaintiff claims.

The proceedings upon the adverse claim in a court of competent jurisdiction act as a stay upon the proceedings in the Land Office. "All proceedings except the publication of notice, and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent