Steel v. St. Louis Sm. Co., 106 U. S. 447; Ferry | notice is thereupon published for the proper v. Street, 11 Pac. Rep. 571; Darcy v. McCarthy, 12 Pac. Rep. 104; Pierce v. Frace, 26 Pac. Rep. 192. (See 157 U. S. 372.) Jones v. Meyers, 2 Idaho, 794; 26 Pac. Rep. 215; Hestres v. Brennan, 50 Cal. 211; Judd v. Randall, 29 N. W. Rep. 589; Forbes v. Driscoll, 31 N. W. Rep. 663; Vantongeran v. Hefferman, 38 N. W. Rep. 52; Randall v. Edert, 7 Minn. 450; Gray v. Stockton, 8 Minn. 529. 122. The Commissioner of the General Land Office may cancel an entry based on fraudulent proof before patent, even if it has been assigned to a third person. Jones v. Meyers, 2 Idaho, 794; 26 Pac. Rep. 215; Parsons v. Venzke, 4 N. Dak. 452; 61 N. W. Rep. 1036. 123. In requiring an amended survey of an entered mining claim, the General Land Office should direct that claimant be allowed a certain time within which to take proper steps, under penalty of cancellation of the entry. Vanderbilt Lode, 16 L. D. 105. 124. If the General Land Office holds an entry for cancellation on insufficient grounds, and cancels it on failure of claimant to appeal, the rights of entryman are lost if another right attaches after cancellation. Roberts v. Gebhart, 104 Cal. 67. 125. An order of the Commissioner of the General Land Office canceling an entry on a contest to which entryman has not been cited as required by Department practice is a nullity. Risdon v. Davenport, 4 S. Dak. 555. 126. A mineral entry should not be canceled on the report of a special agent that claimant has not complied with the law, and that the mining claim is valueless as such, but a hearing should be ordered by the General Land Office. Franklin L. Bush, 2 L. D. 788. 127. The mutilation (without the consent and against the protest of the grantee) of a patent for public land, by the Commissioner of the General Land Office, after its due execution and recordation, and a mutilation of the record, cannot affect the validity or force of the patent. Bicknell v. Comstock, 113 U. S. 149. 128. Where notice of application for patent was not published for the required period and the General Land Office ordered republication on that account, without questioning the sufficiency of the notice, and the same period, republication should not again be required for a defect in said notice. Mimbres M. Co., 8 L. D. 457. 129. 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. 130. 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 curice, 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. 131. 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. 132. If a suit to determine the right of possession to a mining claim is pending at the time of publication of notice of application for patent therefor by one of the parties, it is not necessary that the other party should file an adverse claim, but he need only show the pendency of said suit to procure a stay of western Lode and Mill Site Co., 8 L. D. 437. proceedings before the land office. North(For exemplifications of papers, see MISCEL LANEOUS, p. 461.) 8. Register and Receiver. 133. A register may not act as an attorney in a case before the land office. United States v. Waitz, 3 Sawy. 473; 4 Mor. Min. Rep. 205. 134. The register of a land office, who acts as attorney for a mineral applicant for patent and charges more than his legal fees for services in the matter, is guilty of extortion under section 5481, United States Revised Statutes. United States v. Waitz, 3 Sawy. 473; 4 Mor. Min. Rep. 205. 135. A clerk in a local land office is an | to take charge of the office and received a employee of the General Land Office within mineral application and directed publication the meaning of section 452, United States Re- of notice thereof, his acts were those of an vised Statutes, prohibiting officers, clerks or officer de facto, acting colore officii, and will employees from acting as attorneys. Sharritt be held valid. Dean Richmond Lode, 1 L. D. v. Wood, 11 L. D. 25. 136. Courts will not interfere with the exercise by executive officers of the government of political or discretionary power. The register and receiver of the land office are required to exercise a judicial judgment and discretion, and their action relating to the disposal of public lands will not be interfered with by mandamus or injunction. Litchfield v. Register & Receiver, 1. Woolworth, C. C. Rep. 299. (Affirmed, 9 Wall. 575.) See, also, Mississippi v. Johnson, 4 Wall. 498; Koehler v. Barin, 25 Fed. Rep. 161. 137. A mineral application tendered at the local land office, but not filed because of the temporary absence of the register, operates to segregate the land covered thereby, and bars the subsequent filing of an application for the same land by another pending action by the register. Rice v. Redding, 11 L. D. 213. 545. 142. In designating a newspaper for the publication of notice of a mineral application, the register is not required to recognize the difference in distance from the claim between two papers published in the same city or town. Condon v. Mammoth M. Co., 15 L. D. 330. 143. In designating a newspaper as being the one of general circulation published nearest the land, the register has a judicial discretion, subject, however, to the supervisory authority of the General Land Office and Department of the Interior. Condon v. Mammoth M. Co., 15 L. D. 330. 144. The register may exercise an official discretion in the designation of a paper for the publication of notice of a mineral application, and if the one published nearest the claim will not give publicity to the notice, another paper, in which the publication will effect the object of the law, may be designated. Tomay v. Stewart, 1 L. D. 570. See, also, Erie Lode v. Cameron Lode, 10 L. D. 655. 145. The register may exercise a legal discretion in designating the newspaper of general circulation published nearest a mining claim. (Lead City is nearer the land than Deadwood, but a mountain rises between Lead City and the claim.) Held, that the publication in the Deadwood paper was proper. Bretell v. Swift, 16 L D. 178. 138. Where a second application is allowed for land embraced in a prior application, by reason of the fact that the survey showed no conflict, and the second applicant, being misled by the action of the land office, failed to adverse the first application, such second application may be treated as an adverse claim (and the second applicant in this case was allowed thirty days from the decision within which to begin suit). Hall v. Street, 3 L. D. 40. 139. Suit must be commenced upon an adverse claim within thirty days from date of 146. The selection of a newspaper for pubfiling of the adverse claim in the land office, lication of a notice of application for a mining and the running of said time is not stayed by claim rests in the sound discretion of the a decision of the local office dismissing the register. Other things being equal, the conadverse claim and an appeal from said decis-venience of the applicant should be regarded. ion by the adverse claimant. Scott v. Malo- | W. A. Arnold, 2 L. D. 758. ney, 22 L D. 274. 140. Publication of notice of application for mineral patent under the direction of the receiver of the land office, during a vacancy in the office of register, is the act of a de facto officer, and is not invalid, and failure to adverse such application during such publication is a waiver of adverse rights. Jeffords v. Hine, 11 Pac. Rep. 351; 15 Mor. Min. Rep. 575. 141. Where the register of the land office was suspended and the receiver was directed 147. Any defect in the published notice of application for a mineral patent is chargeable to the register, whose duty it is to prepare and publish the same, and an entry may be referred to the Board of Equitable Adjudication, where such notice is defective in failing to connect the claim with a corner of the public surveys or a United States mineral monument. Mimbres M. Co., 8 L. D. 457. 148. Proof of posting of notice of application for patent in the local land office should be furnished by the register, but if not fur- | States Surveyor General will be recognized. nished by him the claimant may submit evi- William E. Jacobs, 21 L. D. 379. dence upon the point. Mimbres M. Co., 8 L. D. 457. 149. A mineral entry should not be canceled because the entrymen claim by transfer from a local land officer, by whom the claim was located, where the entryman and the officer acted in good faith. No opinion expressed as to the legality of such a location. Rust and Criteser, 2 L. D. 754. 150. Application for patent may be filed and mineral entry made by the receiver, before his own office, where, prior to his appointment as such officer, he had acquired possessory title to a mining claim, for himself and as trustee for others, as to apply section 452, United States Revised Statutes, would deprive the cestui que trustent of the patent to which they are entitled. Com'r to Jeremiah Collins, Receiver, Helena Office, Aug. 21, 1896. 151. Public land cannot be considered as having been surveyed until the plat thereof has been filed in the local land office. Buxton v. Traver, 130 U. S. 232. 152. 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. 156. The action of the Surveyor General in suspending or revoking the appointments of United States Deputy Mineral Surveyors should be submitted by the Surveyor General to the General Land Office. Robert Gorlinski, 20 L. D. 283. 157. A Deputy Mineral Surveyor may hold a commission in more than one State. Charles W. Helmick, 20 L. D. 163. (Overruling S. C., 18 L. D. 601.) 158. A Deputy Mineral Surveyor need not be a resident of the land district for which he is appointed, and may hold more than one appointment. Charles W. Helmick, 20 L. D. 163. 159. Surveyors who are under contract to survey public land should not be commissioned, "but should receive an appointment for the execution of each contract." This does not apply to Deputy Mineral Surveyors. Com'r to Surveyor General of California, March 24, 1886. (Report of General Land Office of 1886, p. 280.) Com'r to Surveyor General of New Mexico, Oct. 14, 1892. 160. A Deputy Mineral Surveyor is required to give a bond in the sum of $10,000 for the faithful performance of his official duties. This bond must be approved by the Commissioner of the General Land Office. Circular of Nov. 13, 1877, Copp's Min. Lands (2d ed.), 61; 5 C. L. O. 35. 153. Where parties have acquiesced for eight years in a decision of the local land of161. A bondsman of a Deputy Mineral fice dismissing their application for a mineral Surveyor should not be allowed to arbitrapatent, and the land has meantime been pat-rily disclaim further responsibility for the ented to another, they have no standing in a court of equity for the purpose of attacking the patent. United States v. Marshall M. Co., 129 U. S. 579. 9. Surveyor General - Deputy Mineral Surveyor. (See SURVEY, p. 137.) 154. An employee in the office of the Surveyor General is an employee of the General Land Office, within the meaning of section 452, United States Revised Statutes, prohibiting officers, clerks or employees from acting as attorneys. Herbert McMicken, 11 L. D. 96. 155. The matter of the appointment of United States Deputy Mineral Surveyors is a matter in which the discretion of the United acts of the deputy, but the deputy should be allowed to furnish a new bond. Com'r to Surveyor General of Montana, Sept. 10, 1894. See, also, 7 Op. Att'y Gen. 62. 162. A Deputy Mineral Surveyor may make mineral land entries, but in that event he cannot act in any other capacity than a claimant. A Deputy Mineral Surveyor cannot survey a claim and act as notary public in the same case. Dennison & Willits, 11 C. L. O. 261. 163. A mineral entry may be made by a United States Deputy Mineral Surveyor within the land district for which he is appointed. Lock Lode, 6 L. D. 105. 164. A Deputy United States Surveyor, under contract to survey public land for the government, is prohibited by section 452, United States Revised Statutes, from making an entry of public land. Müller v. Coleman, 18 L. D. 394. 165. A Deputy Mineral Surveyor should not take contracts to survey and secure patents for mining claims, as he should not act in the double capacity of surveyor and attorney in the same case. Com'r to Surveyor General of Montana, March 29, 1992. 166. The United States Deputy Mineral Surveyor by whom a mineral survey is made should not appear in the case in any other capacity, not even as notary public. Dennison & Willits, 11 C. L. O. 261; Clinton Gurnee, 13 L. D. 608. 167. There is no objection to the holding by a Deputy Mineral Surveyor of the office of notary public under the local authority, but by the rulings of this office, based on considerations of public policy, the Deputy who surveys a mining claim in the employ of the claimant is not permitted to act also as notary public in matters pertaining to the same claim. Com'r to Surveyor General of Montana, Jan. 20, 1890, 16 C. L. O. 269. 168. The report of the United States Deputy Mineral Surveyor should show the value of improvements placed upon the claim by claimants or their grantors. Improvements made by other parties should not be credited to the claim. Circular of Nov. 20, 1873, 1 C L. O. 13. 169. Instructions to Deputy Mineral Surveyors in States where the Commissioner of the General Land Office is ex officio surveyor general. Smith Scogin, 2 C. L. O. 34. 170. A United States Deputy Mineral Surveyor who is found to be incompetent or careless in the performance of his duties should be dropped from the rolls. Com'r to Surveyor General of Montana, May 7, 1892. 171. If an amended survey or a resurvey is required through the fault of a United States Deputy Mineral Surveyor, he should bear the expense thereof. Com'r to Surveyor General of Colorado, July 30, 1895. 172. The applicant for a mineral survey should be required to deposit only the sum necessary to defray expenses of work in the office of the United States Surveyor General, not for the work of the United States Deputy Mineral Surveyor by whom the survey is to be made. George B. Foote, 2 L. D. 773. 10. General. 173. A discovery of a vein or lode of mineral-bearing rock in place is a prerequisite to a valid location, and failure to make such discovery may be set up before the Land Department by one who has failed to file an adverse claim. Waterloo M. Co. v. Doe, 17 L. D. 111. 174. The Land Department can take no judicial cognizance of the location of mining claims, as no record thereof is kept by it. Bodie T. & M. Co. v. Bechtel Cons. M. Co., 1 L. D. 584. ment work according to law may be waived 175. The failure to perform annual assessby the Department, even in the face of an adverse relocation, if such failure occurred through the mistake of a bona fide claimant. Stewart v. Reeves, 21 L. D. 446 (Jaw Bone Lode). 176. The rejection by the Land Department of an application for patent to a mining claim cannot affect the possessory right of the applicant. Clipper Mining Co., 22 L. D. 527. 177. Publication of notice of application for a mineral patent in a weekly paper requires ten insertions, but where only nine were made in accordance with the former practice of the Land Department, the entry may be referred to the Board of Equitable Adjudication for confirmation, in the absence of any adverse rights. Oro Placer, 11 L. D. 457. 178. A legal entry of public land vests the equitable title thereto in the entryman, the United States thereafter holding the legal title in trust for the entryman until a patent issues, and this right cannot be defeated by an order of the Land Department, issued without warrant of law, canceling the entry. Cornelius v. Kessel, 128 U. S. 456. 179. A survey made by the proper officer of the United States, and approved by the Land Department, is not subject to collateral attack. Russell v. Maxwell Land Grant Co., 158 U. S. 253. 180. The power to make or correct surveys of the public lands is vested only in the Land Department, and its action is unassailable in the courts except in direct proceedings. Knight v. United States Land Ass'n, 142 U. S. 161. 181. The Land Department has exclusive | L. D. 544; Monitor Lode, 18 L. D. 358. Contra, jurisdiction in the matter of the survey of Turner v. Sawyer, 150 U. S. 578; Brunby v. public lands, and its decisions are unassail- | Mayfield, 38 Pac. Rep. 1067. able in the courts except in a direct proceeding. Haydel v. Dufresne, 17 How. 23; Cragin v. Powell, 128 U. S. 691. 182. The Land Department will not order a hearing to determine the character of land unless an application to enter the same is made. Central Pacific R. R. Co., 8 L. D. 30; 9 L. D. 613. 183. A decision as to the character of the land does not bar a subsequent investigation thereof by the Land Department. Searle Placer, 11 L. D. 441. 184. The value of mineral discovered in a mining claim will not be inquired into by the Land Department except in a controversy between mineral and agricultural claimants as to the character of the land. Tam v. Story, 21 L. D. 440. 185. For good reasons the Land Department will expressly authorize the filing of a second coal declaratory statement, and where entry has been made, based on a second declaratory statement, the filing thereof may be authorized nunc pro tunc. John McMillan, 7 L. D. 181. 186. The holder of a mining claim upon which trespasses are committed should protect himself by an action before the local courts, as the Land Department is powerless to give relief. Com'r to H. Clendenen, June 24, 1891. 187. The Land Department cannot interfere in disputes between miners as to the affairs of a mining district. Its sole duty is to recognize the local laws when not in conflict with statutes, State and National. Com'r to J. N. Barker, Jan. 9, 1892. 188. The regularity and legality of forfeiture proceedings against alleged delinquent co-owners under section 2324, United States Revised Statutes, will not be questioned by the Land Department if such co-owners fail to protect their rights under section 2326, United States Revised Statutes. Grampian Lode, 1 L. D. 544. 189. A co-owner of a mining claim who is not joined with the other owners in an application therefor must, to be recognized by the Land Department, protect his rights by filing an adverse claim under section 2326, United States Revised Statutes. Grampian Lode, 1 190. It is presumed by the Land Department, in the absence of a contrary showing, that the lode extends in a straight line through the center of a surveyed claim. Bimetallic M. Co., 15 L. D. 309. 191. Until a rule of the Land Department is changed it has all the force of law, and a change does not render illegal any acts performed in accordance with the then existing rule. Miner v. Mariott, 2 L. D. 709. 192. An injunction will not issue to restrain the exercise of official discretionary action. Mississippi v. Johnson (President). 4 Wall. 498; Litchfield v. Register & Receiver, 9 Wall. 575; Koehler v. Barin, 25 Fed. Rep. 161. 193. Mandamus will not issue against a land officer to compel discretionary action. Marquez v. Frisbie, 101 U. S. 413. See, also, Decatur v. Paulding, 14 Pet. 497; United States v. Guthrie, 17 How. 284; United States v. Conner, 5 Wall. 563; Litchfield v. Register & Receiver, 9 Wall. 575; Carrick v. Lamar, 116 U. S. 423. 194. The act of February 25, 1895 (28 Stat. 683), providing for the classification of lands within the grant to the Northern Pacific Railroad Company with respect to their mineral or non-mineral character, does not suspend the authority of the Land Department to pass upon pending cases involving that question, nor does it withdraw such lands from appropriation and entry. Sweeney v. N. P. R. R. Co., 21 L. D. 65. 195. An affidavit of citizenship made by a mineral claimant is not only good evidence under the law before the Land Department, but in any proceeding based on chapter 6, title XXXII, United States Revised Statutes. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 503. (Motion for new trial.) 196. The naturalization of an alien by a court not having a clerk will not be recognized by the Land Department. J. F. Hechtman, 1 L. D. 61. (Overruled in Joseph Barber, 1 L. D. 83.) 197. All officers, clerks and employees in the office of the Surveyors General, the local land offices and the General Land Office, or any persons, wherever located, employed under the supervision of the General Land |