No. 8. Protestant is not entitled to the right of appeal.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., March 24, 1876. SIR: I have had under consideration the case of the Boston Quicksilver Mine, mineral entry No. 23, San Francisco, California, wherein Mr. Wm. McGarrahan has filed an appeal from your decision of August 21, 1875, denying his right of appeal from your decision of August 14, 1875, holding that the owners of said mine had shown such compliance with law as entitled them to a patent.

Amicus curia no right of appeal.

While it was laudable in Mr. McGarrahan to make suggestions to your office of what he believed was an attempted fraud upon the government in the matter of this application for patent, and proper for you to accept and consider such suggestions in an examination of the case, I can hardly conceive that it will be seriously contended that he, not being a party in interest, but standing in the relation of amicus curiæ, has a status entitling him to an appeal. I am very clearly of the opinion that he has no such right, and therefore affirm your decision to that effect.

With a view of preventing the delay arising from appeals improperly taken, I recommend that in future, whenever an appeal shall be taken which, in your opinion, is unauthorized by law and the practice of this department, you at once report the same to this office for decision.

The papers of the case transmitted with your letter of September 1, 1875, are herewith returned.

Very respectfully,

Z. CHANDLER, Secretary.

To the Commissioner of the General Land Office.

No. 9. A bill in equity to enjoin defendants from applying for patent on a mining claim, not an action which can be taken notice of by the land office.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, D. C., January 18, 1875.

Register and Receiver, Salt Lake City, Utah.

GENTLEMEN: On the twenty-second August last you transmitted the papers in the case of the application of Marcus Daly for patent for the Red Pine Mine, Utah.

By the papers in the case it appears that the said application for patent was filed in your office on the twenty-fifth day of April, 1874; that the notices and diagrams were posted upon the claim from the twenty-first April, 1874, to the twenty-second August, 1874, and in the Register's office from the sixth June, 1874, to the twenty-second August, 1874; that the notice was published in the Salt Lake Weekly Tribune on the sixth June, 1874, and for eleven consecutive weeks thereafter.

The Red Pine Mine was located July 18, 1871, and record of such location was made on the same day in the Recorder's office of Ophir mining district, Tooele County, Utah.

By the abstract of title it is shown that the applicant has record title to the premises claimed.

Bill in equity to enjoin defendants from applying for patent.

On the twenty-second August, 1874, the applicant having filed proof of compliance with the local laws and Congressional enactments, was allowed to make entry of the premises as applied for, no adverse claim having been filed. On the seventeenth September, 1874, Enoch Totten, Esq., filed in this office a paper purporting to be a copy of a bill in equity, filed in the district court for the third judical district, Utah, the general nature and object of which seems to be to restrain said Daly and one Walker and others, who are joined as defendants, from further prosecuting said application for patent. The plaintiffs named in said bill are Isaac S. Waterman and George R. Ayers. Whether or not any proceedings have in fact been had under said bill does not appear, nor is it necesary to inquire, since it is not such action as can be taken notice of by this office. At the same time were filed the affidavits of George R. Ayers and Levi Smiley.

In the sworn statement of Mr. Smiley, he alleges that he had never seen the survey stakes of the "Red Pine survey, and never had any knowledge that such a survey had been made." That he had never seen the plat and notice. of application for a patent for said mine, although he had frequently passed over the ground included in such survey since June 1, 1874; that he had no knowledge that said application for patent had been made until September 7,

1874; that he is mining captain on the St. Louis and Hidden Treasure mine.

In his sworn statement Mr. Ayers alleges, that he is the same person who made oath to said bill which was filed in the office of the clerk of the court of the third judicial district, Utah, on the eleventh September, 1874, in which Isaac S. Waterman and George R. Ayers are plaintiffs.

In the case under consideration no adverse claim was filed within the time prescribed by the statute.

The sixth section of the mining act provides that an adverse claim to be considered must be filed within the sixty days notice by publication, "and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with this act."

The protestants urge that the location of the Red Pine was void for uncertainty.

The fourth section of the district laws in force at the date of said location provides "that the notice shall state the number of feet claimed in the location, number claimed each side of monument, the names of the parties locating the same, and the number of feet claimed by each locator, name by which the ledge or lode shall be known." Section seven provides that "in making a record of location of any claim, the same shall be definitely described with reference to some natural or artificial monument."

Section twenty-one of said laws provides that “the recorder in person, or through his deputies, go on the ground before filing a location for record, and see that the proper notice and monument are placed thereon, and note on the notice and in a book for that purpose the locality of said location."

The location notice in the case under consideration reads as follows:

"Red Pine-Located July 18, 1871.
"Notice:

"We, the undersigned, have this day located and claimed one thousand feet on this lead, lode, ledge, or deposit, together with all dips, spurs, and angles. We claim it according to the laws of Ophir Mining District and the laws.

of the United States. This mine to be known as the Red

Pine.

"Jesse Foster, 400 feet.

"Cancey Porter, 200 feet.

"E. V. Ankram, 200 feet.

"W. Ankram, 200 feet.

"We claim five hundred feet easterly and five hundred feet westerly.

"Situate about two hundred feet easterly from the Sacramento."

This notice seems to meet all the requirements of the local law, and to have been made in accordance therewith.

It will be observed that it is made the duty of the recorder or his deputy to "go on the ground before filing a location. for record, and see that the proper notice and monument are placed thereon."

This notice was filed for record on the eighteenth of July, 1871, and recorded.

This act of the recorder may be fairly appealed to as being corroborative of the sworn statement of the applicant that the local law had been complied with in the matter of said location. Accompanying the other papers filed with said application is the sworn statement of two persons, who allege that they are well acquainted with the Red Pine mining claim, and that the survey of said claim, made by J. Gorlinski, deputy mineral surveyor, in their presence, "embraces the identical ground as originally claimed by the locators and grantors of said mining claim."

The applicants allege compliance with the local laws, and have filed satisfactory evidence of such compliance. The survey seems to have been regularly made, and the notice and diagram conspicuously posted upon the claim, to wit, upon the discovery shaft of said Red Pine lode.

Messrs. Waterman and Ayers also urge that the notice of intention to apply for a patent was not properly given, for the reason that the published notice required adverse claims to be filed within sixty days from the sixth of June, 1874, the date of the first publication, while the notice. posted upon the claim, dated April 21, 1874, concludes with these words: "Any and all persons claiming adversely * * * are hereby notified that, unless their adverse claims

are duly filed as according to law and the regulations thereunder, within sixty days from the date hereof, with the register of the United States Land Office at Salt Lake City, * * * * they will be barred, in virtue of the provisions of said statute."

This gratuitous information on the part of the applicant is not shown to have injured any party or person, nor yet could their rights have been adversely affected had any parties filed an adverse claim against said application, "according to law and the instructions thereunder."

Having carefully considered all the papers filed by the applicant and protestants, I am of the opinion that the applicant has shown compliance with the law, and that patent should issue for said mine, as applied for.

You will inform all parties in interest, and acknowledge the receipt hereof.

Very respectfully, your obedient servant,

S. S. BURDETT, Commissioner.