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composing the same, have continuously held and occupied and been in the actual possession of the mining premises and lodes since the date of location of the same, with the knowledge of the Eureka company and its agents, and without any opposition whatever from it," (Eureka company.) "That the locators of said lodes and the Jenny Lind mining company respectively, have in all respects complied with every custom, rule, regulation and requirement of the mining laws of said mining district and thereby became, and are, owners (except as against the paramount title of the United States,) and the rightful possessors of said mining claim and locations;" and that "the vice-president of the Eureka company, at the time of his filing the application therefor, well knew that the Jenny Lind mining company was the owner in possession and entitled to the possession of so much of said mining ground embraced within the survey and plat of said applicant as is herein before stated, and the said Jenny Lind mining company is entitled to all the silver and other metals in said Southern Extension of the Bullion lode, the Queen Victoria and the Pride of the West 2nd lodes."

It further appears from the statements of said adverse claim that the Eureka company on the tenth day of October, 1872, entered into a written contract which was proffered to the Jenny Lind company, but never executed by it, in which the Eureka offered to convey to the Jenny Lind, when patent should be issued to it, the said Bullion, Queen Victoria and Pride of the West lodes, in consideration that the Jenny Lind company would refrain from filing an adverse claim to the application of the Eureka company for patent.

The said writing contains the following (among other things): "and whereas, said party of the first part" (the Eureka Company) "has no claim to any part of said Queen Victoria, Pride of the West, and Bullion locations, their dips, angles and spurs.

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The above are the allegations of the adverse claim. I think they fairly inform the applicant for patent of its nature.

They state that the Jenny Lind company is the owner of said Bullion and other lodes, by location. It is true that some of the exhibits show that the persons who organized the Jenny Lind company were not identical with some of the locators of said lodes. But what of that? Suppose the adverse claim had alleged ownership by location and the exhibits had shown ownership by purchase? The claim would, undoubtedly, have been good. The material thing is ownership, in accordance with the rules and regulations of miners. All that is alleged, and it is also alleged that

that the Eureka had full knowledge of the ownership and possession, and never asserted any claim to the contrary. The statement in the written agreement goes further, and admits that said company had no claim to any part of the said lodes of the Jenny Lind company. It is claimed that this admission should not be regarded in the case, because it was made pending a treaty of compromise. Grant it, yet it is the admission of a fact made without any stipulation that it should be without prejudice, and according to the American cases is receivable as an admission against the Eureka company. Mount v. Bogart, Anthon, 190; Maney v. Carter, 4 Conn. 635; Fuller v. Hampton, 5 Conn. 416; Sanborn v. Neilson, 4 N. H. 501; Delogey v. Rentoul, 1 Martin, 175; Marvin v. Richmond, 3 Den. 58; Cole v. Cole, 34 Maine, 542.

Now, taking all these allegations as true (which must be done in determining the sufficiency of this adverse claim), and I do not see how it can be claimed that the Eureka company is not sufficiently informed of the nature of the claim. I think it was so informed, and I advise that so much of the Commissioner's decision as rejected the Jenny Lind mining company's adverse claim be reversed, and so much as rejected the other adverse claims be affirmed.

Very respectfully,

W. H. SMITH, Assistant Attorney-general. Hon. C. DELANO, Secretary of the Interior.

Application Rejected because within the Sutro Tunnel Grant, Nevada.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., March 29, 1873. Register and Receiver, Carson City, Nevada:

GENTLEMEN: This office has examined the papers filed in case of the application of Thomas Lyons, for patent for the McKibben lode, situate in Virginia mining district, Storey County, Nevada.

It appears that a large portion of the claim in question (Survey No. 67, T. 17, N. R. 21 E., Mt. Do. Mer.) is within 2,000 feet of the proposed line of the Sutro Tunnel, and hence affected by the provisions of the act approved July 25, 1866, entitled "An act granting to A. Sutro the right of way, and granting other privileges, to aid in the construction of a draining and exploring tunnel, to the Comstock lode, in the State of Nevada."

The second section of said act provides that "the said A. Sutro, his heirs and assigns, are hereby granted the right to purchase, at five dollars per acre, such mineral

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veins and lodes, within 2,000 feet on each side of said tunnel, as shall be cut, discovered, or developed, by running and constructing the same through its entire extent. Provided, that the Comstock lode, with its dips, spurs, and angles, is excepted from this grant, and all other lodes, with their dips, spurs, and angles, located within the said 2,000 feet, and which are or may be at the passage of this act in ' the actual bona fide possession of other persons, are hereby excepted from such grant; and the lodes herein excepted, other than the Comstock lode, shall be withheld from sale by the United States; and if such lodes shall be abandoned or not worked, possessed and held in conformity to existing mining rules, or such regulations as have been or may be prescribed by the Legislature of Nevada, they shall become subject to such right of purchase by the grantee herein, his heirs or assigns."

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That portion of Mr. Lyon's claim, which lies within said 2,000 feet limits, cannot be patented, the same being on a lode other than the Comstock.

It is observed that the published notice and the notices and diagrams posted in the Register's office and upon the claim, fail to properly describe the premises for which patent is sought, the description therein being as follows, viz: "Commencing at Post No. 1, * * * thence running N. seventy-three degrees E. 1235 feet to Post No. 2, and S. seventy-three degrees W. 165 feet to Post No. 3,” etc.

This description is not sufficient, as you were informed on the twenty-fourth instant, in case of the application of the Gold Hill Tunnel Company, for patent for the Gould and Condé lode, and no patent could issue upon the application of said Lyons, even though it had been outside the limits of withdrawal for the Sutro tunnel herein before referred to.

You will inform the applicant therefore, that no patent can issue for that portion of the premises described in his application for patent which lies within the limits of withdrawal for the Sutro tunnel, and that his application for patent for the portion which lies outside of such withdrawal, is rejected for the reasons set forth in full in my letter of the twenty-fourth instant in case of the Gold Hill tunnel company's claim.

You will allow sixty days from the date of your notification in which an appeal may be taken to the Head of the Department and acknowledge the receipt hereof.

Very respectfully,

WILLIS DRUMMOND, Commissioner.

Papers Filed in the Local Land Office must not be taken

therefrom.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D.C., April 4, 1873, Register and Receiver, Salt Lake City, Utah:

GENTLEMEN: In reply to the Receiver's letter of the seventh ultimo, I have to state that applicants for patent have the right to examine any and all papers that are filed with the Register and Receiver, in the nature of protests or adverse claims to their applications for patents, but in no case should the local land officers permit papers which have been filed with them to be taken out of their office.

Very respectfully,

WILLIS DRUMMOND, Commissioner.

Case of the Overman Silver Mining Company vs. Dardanelles Mining Company, Nevada.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D.C., April 11, 1873. Register and Receiver, Carson City, Nevada:

GENTLEMEN: Referring to your letter of the twenty-sixth of March, 1873, in the matter of the application of the Dardanelles mining company for patent for certain mineral lands in Nevada, against which the Overman Silver mining company filed an adverse claim, I have to state that your action in entertaining "a motion to dismiss the adverse claim," was wholly unauthorized by the law, the instructions issued thereunder, and the practice of the office.

The mining act of May 10, 1872, declares, "that where an adverse claim shall be filed during the period of publication, it shall be upon the oath of the person, or persons, making the same, and shall show the nature, boundaries and extent of such adverse claim, and 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 in a court of competent jurisdiction.

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The Register and Receiver have no authority to "dismiss an adverse claim," nor to receive additional proof either from the applicant for patent, or the adverse claimant, after the time prescribed by law for publication has expired, and before the "controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived," unless such adverse claimant shall fail to commence proceedings in court within the time required by

law, to-wit: "within thirty days after filing his claim." In which last event the application will be allowed to proceed as if no adverse claim had been asserted.

Should the Register and Receiver decide that an adverse claim has been made out in proper form and stay proceedings upon the application for patent, the applicants for patent may appeal from such decision to the Commissioner of the General Land Office; and, on the contrary, should the local land officers decide that no adverse claim made in the proper form had been filed, the adverse claimants have the right to appeal from said decision to this office.

But in no event can additional proof of any kind be received upon such appeal.

Should an appeal be taken from your decision either that an adverse claim has been made out, or that it has not been made out, you will inform all parties in interest of such appeal, and forward all the papers in the case with such arguments as may have been filed by the respective parties, to this office for review and decision.

The appeal of the Dardanelles company from your decision granting the Overman company twenty days to file counter affidavits in case of the motion of the Dardanelles company to dismiss adverse claim, has been dismissed as you were informed on this day.

You will inform all parties in interest of the import of this decision, and be governed hereafter by the instructions herein contained.

Be pleased to acknowledge the receipt hereof.

Very respectfully, etc.

WILLIS DRUMMOND, Commissioner.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., June 3, 1873.

N. L. JEFFRIES, Esq., Washington, D. C.:

SIR: This office has considered your motion, as attorney for the Overman Silver Mining Company, to dismiss the appeal of the Dardanelles Mining Company from the decision of the Register at Carson City, Nevada, in the matter of the application of the Dardanelles mining company for patent.

The following is a statement of facts in the case: On the twenty-second October, 1872, the Dardanelles mining company filed in the local land office at Carson City, Nevada, an application for patent for 1,200 linear feet of the Bosphorus lode, Nevada.

On the nineteenth December, 1872, the Overman silver mining company filed a protest against said application for patent. On the thirteenth January, 1873, the Register no

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