and that the applicants for patent have the record title to one thousand linear feet thereof.

On the sixth September, 1871, Michael Meagher, for himself and his co-tenants, filed an adverse claim to said. application. In his sworn statement he alleges that said application for patent includes the Edgar mining claim; that said lodes or deposits are separate and distinct from each other; that he and his co-tenants, and their predecessors in interest, have been in the quiet, peaceable, and exclusive possession of said Edgar lode for more than two years last past, and that he and his co-tenants have performed the work necessary to hold a mining claim under the laws of White Pine mining district.

From an abstract of title on file in the case, from the office of the county recorder of White Pine county, it appears that the Edgar lode was located on the fourth of June, 1868, and record thereof made on the twentieth of June, 1868, and that Chas. E. De Long, M. Meagher, J. P. Garvey, and Annie Meagher have now the record title to one thousand two hundred linear feet thereof.

From the foregoing it will be perceived that the mining ground sought to be patented was located prior to said Edgar lode, and inasmuch as said deponent avers that the Edgar is a separate and distinct lode from the one for which said application for patent is made, it is held that said protestant has failed to present an adverse claim within the law, and for the following reasons, viz.:

Reasons for rule.

1. Every patent issued for mining property contains an express clause by which all other veins or lodes, except the one named in the grant, are excepted and excluded from the conveyance according to the terms of the mining stat

ute.

2. Under the mining regulations of White Pine district, a locator is entitled to hold one hundred feet of surface. ground on each side of his lead, lode, or ledge; but this surface right gives him no title or claim to any other distinct or parallel ledges which may be found to exist within such surface.

This opposing party having made no claim to the ledge

sought to be patented, but to another lode separate and distinct therefrom, and as priority of location determines the right to surface ground, it is ruled that this adverse filing does not constitute such an adverse claim, either to the lode or surface ground, as is contemplated by the sixth section of the mining statute, and the same is accordingly rejected.

Your obedient servant,

W. W. CURTIS, Acting Commissioner.

No. 11. An adverse claimant is not required to establish to the satisfaction of the Land Department his compliance with law, further than properly asserting his adverse claim.

DEPARTMENT OF THE INTERIOR,

OFFICE OF THE SECRETARY,

WASHINGTON, July 14, 1877.

SIR: I am in receipt of your letter of the twenty-second ultimo, transmitting the papers in the matter of the application of Andrew Aitken and Israel Luce, for a patent for mining premises embraced in lot No. 40, township 8, range 13 east, M. D. M., Sacramento, California.

During the period of publication of the application, and under date of December 29, 1875, Lyman S. Bell and Richard Murray filed an adverse claim, and on the twentyfourth day of January following commenced suit in the District Court of the Eleventh Judicial District for El Dorado county.

Under date of October 4, 1876, you decided the case, rejected the adverse claim of Bell and Murray, and stated that the applicants would be allowed to perfect their claims for patent for that portion not in conflict with the patented. claim of C. E. McLane.

On the nineteenth of December following, Bell and Murray filed an appeal from your decision. You rejected the same, for the reason that it failed to set forth or state points of exception, and stated that your decision had become final.

In the Boston mining case, decided by my predecessor March 24, 1876, your office was instructed "that in future whenever an appeal shall be taken, which in your opinion

is unauthorized by law and the practice of this Department, to at once report the same to this office for decision." Such action should have been taken in the present case, and I do not think that by the delay the status of the case has been changed, but that it is properly before me for supervising control and decision.

Bell and Murray filed an adverse claim, and commenced suit within the time prescribed by statute.

You reject said claim for the reason that "they do not allege that they have the possession and the right of possession to the premises claimed by them in virtue of compliance with the local laws and congressional enactments, nor yet do they allege any compliance upon their part with said laws." Also that they fail to show the nature of their claim, "whether the same is a placer mine, a quartz claim, or a marble quarry."

Section 2326 of the Revised Statutes requires "that where an adverse claim shall be filed during the period of publication, it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries, extent of such adverse claim," etc.

In their sworn statement, filed with the local officers December 29, 1875, Bell and Murray assert that they are the owners, by purchase and location, and in possession of the adverse Marble Quarry mine, with surface ground; and they further state that the locators remained continuously in possession of said mine, working upon the same continuously until purchased by said L. S. Bell and Richard Murray, July 12, 1853, since which time it has remained in their possession, and that they have expended the sum of fifteen thousand dollars in working and developing the same, and that the record title to the same is in said claimants. In support of this last assertion certain deeds are filed, conveying an interest in certain mining lands. A copy of notice of location of certain ground for mining purposes, dated March 29, 1871, was also filed. Also a plat prepared by a United States deputy surveyor, showing the extent and boundaries of the tract claimed by Bell and Murray, and the portion in conflict with the claim. of Aitken and Luce, was duly filed.

The adverse claim was filed upon oath, and shows the

nature of the claim to be by purchase and possession, also by location. The extent and boundaries of the claim are shown. In these respects the claimants appear to have complied with the requirements of the statute. Whether they have complied with the requirements of the law and have the better legal right to the land in controversy, is a question for the determination of the court, and should not be anticipated by this department.

Adverse claimant not required to establish compliance with law.

I see nothing in the statute that requires an adverse claimant, who seeks to protect his rights in the courts, which have been opened to him, to establish to the satisfaction of this department that he has complied with the requirements of the mining law, to a further extent than of properly asserting his adverse claim. The court is to judge whether he has thus protected himself. The statute makes it his duty "to commence proceedings in a court of competent jurisdiction to determine the question of the right of possession." All questions connected with the claim must necessarily be considered by that tribunal.

In my opinion Bell and Murray have properly filed an adverse claim and commenced suit.

The papers transmitted by you are herewith returned, with instructions that all proceedings in the case be stayed until the determination of said suit.

Very respectfully,

C. SCHURZ, Secretary.

The Commissioner of the General Land Office.

No. 12. Any state of facts which shows that the person alleging the same has a better right to the premises applied for than the applicant, is the proper subject-matter of an adverse claim.

DEPARTMENT OF THE INTERIOR, WASHINGTON, D. C., July 28, 1875. SIR: I have examined the case of the Mono Mining Company v. the Magnolia East and West Company, the Shoo Fly Company, and William A. Rooks, on appeal from your decision of November 27, 1874.

I affirm your decision on the grounds stated therein so far as it sustains the adverse claim of the Magnolia Company, adding, with reference to the objection urged against

it in the matter of proof of citizenship, that the law is complied with if citizenship be properly alleged, and the fact be not controverted. (Eureka Co. v. Jenny Lind Co., Sec. Dec'n, Copp. 169, 173, 177, 178; Kempton Case, Sec. Dec'n, Jan. 2, 1875.)

With reference to the adverse claim filed by the Shoo Fly Company, I am of the opinion that the stipulation filed in court in the suit commenced by the adverse claimants, signed by properly authorized counsel, and, so far as shown, without fraud, was a waiver of the adverse claim within the meaning of the seventh section of the act of 1872. I, therefore, reverse your decision, so far as it holds the Shoo Fly protest to be a valid subsisting adverse claim.

I do not agree with your ruling upon the protest in the nature of an adverse claim filed by William A. Rooks. This adverse claim was filed January 7, 1873. It alleged that the said Rooks was a citizen of the United States; that on or about the first day of September, 1871, he entered into a contract with H. D. Converse, T. R. Miller, Calvin Kirk, and E. McKendry, by the terms of which the said Rooks was to furnish said Converse et al. with such provisions, tools, and supplies as would enable them to subsist while prospecting for mines and making discoveries of lodes, veins, or deposits bearing precious metals, and that the said Converse et al. were, by the terms of said agreement, to prospect for mines, and make locations of such as might be discovered by them in their names, and in his name, as joint discoverers, and that each of said parties was to own, in his individual right, one undivided fifth interest of all such mines or lodes so discovered; that the said Rooks furnished the provisions, tools, and supplies when required so to do, and fully complied with his said agreement; that on or about the first of November, 1871, the said Converse et al. located and occupied, in accordance with the local laws, a certain lode, one thousand feet in length, to wit, five hundred feet each way from the place of discovery and location monument along the line of the lode, and named and designated the same the Giraffe; that they erected a monument on said lode, and placed thereon a written notice of location, describing the premises located and giving the names