December 2, 1878, after the location of the placer claim but before the application for the placer patent, the South Star lode claim, fifteen hundred feet in length and three hundred feet in width-one hundred and fifty feet on each side of the vein or lode, was located chiefly within the boundaries of the Noyes placer. November 2, 1886, Samuel Ayotte, Maxime Lalande and another person, made application for patent for said lode claim, describing it as fifteen hundred feet in length and fifty feet in width-twenty-five feet on each side of the vein or lode, and entry thereof was allowed September 1, 1887.

November 28, 1890, your oflice, in due course of proceeding, held the South Star entry for cancellation on the ground of conflict with the patented placer claim. The South Star applicants appealed to the Department and also instituted suit in the local court to obtain a judicial determination of the rights of the claimants, respectively, to the ground there in controversy. The complaint filed in that suit asserted ownership and right of possession, as against the placer claimants, to the premises described in the application for the lode patent, being fifteen hundred feet in length and fifty feet in width as aforesaid and a part of the South Star lode claim as originally located. The Department suspended the appeal from your office decision to await the result of the suit in court.

April 14, 1893, judgment was rendered by the court in favor of the South Star claimants for the lode claim described in their complaint, and patent therefor (fifteen hundred feet in length and fifty feet in width-twenty-five feet on each side of the vein or lode) was awarded them by departmental decision of March 12, 1895 (South Star Lode, 20 L. D., 204).

January 1, 1888, more than two years after the application for patent to the South Star lode claim, that portion thereof as originally located, lying within the limits of the placer claim and north of the South Star claim as applied for and patented, was located by Frank Clemens as the North Star lode claim. Clemens thereafter conveyed the North Star claim to Samuel Ayotte and Maxime Lalande, two of the South Star claimants, who December 19, 1889, made an amended location of the North Star and January 3, 1890, made application for patent therefor at the local office. During the period of publication the owners of the patented placer alleging title under their patent to the ground covered by the North Star location and application, filed in the local office April 11, 1890, what they termed an adverse, and instituted suit thereon in the local court. In this suit judgment was rendered May 5, 1893, in favor of the North Star claimants, and December 16, 1895, mineral entry of that claim was allowed by the local officers.

It was not claimed in the court proceedings that the vein or lode in the North Star claim was "known to exist" at the date of the application for the placer patent, but the contention of the North Star claimants was, that all the surface ground embraced within the South Star

claim as originally located was by virtue of that location and by operation of law, excepted from and carved out of the placer patent; and that by reason of this exception from the placer patent and the subsequent entry by the South Star claimants of a portion of the excepted ground containing the South Star lode or vein, the residue of the excepted ground (of which that now in controversy is part) was at the time of the discovery and location of the North Star lode subject to location and purchase by anyone discovering a vein or lode therein. This contention seems to have been sustained by the local court in the suit against the North Star claimants and to have been followed by the local office in allowing mineral entry of the North Star December 16, 1895.

June 8, 1896, your office, having before it for consideration all the papers in the present case, including a copy of the record of proceed ings in the local court, held the North Star entry for cancellation on the ground that the existence of the vein or lode upon which the same is based was not known at the date of the application for the placer patent; that a lode within a patented placer can not be located or patented upon a discovery made subsequent to the application for the placer patent, and that no surface ground was excepted from the placer patent except as an incident to the known South Star lode.

From this decision the North Star claimants have appealed to the Department and in their assignments of error and argument they present practically the same contention that was urged by them in the local court, viz., that the entire South Star claim as originally located (three hundred feet in width) was excepted from the patented placer, absolutely and forever, and that the portion thereof not included in the South Star application, entry and patent, was open to location and purchase at the date of the North Star location.

The so called adverse claim and suit of the placer patentees were intended to be in conformity with sections 2325 and 2326 of the Revised Statutes, which, as a part of the proceedings to obtain patent to a mining claim, provide for judicial determination of the possessory right to ground embraced in conflicting mining claims. These proceedings were commenced prior to the decision (April 28, 1890) by the supreme court in the case of Iron Silver Mining Co. v. Campbell (135 U. S., 286), and, presumably, upon the theory that it was incumbent upon the placer patentees to take such action in order to protect their rights against the application of the North Star lode claimants. In the case cited, however, the supreme court held that the statutory provisions relating to adverse claims apply only where there are adverse claims to the same unpatented mining ground, and that they do not apply to one who had himself gone through all the regular proceedings required to obtain a patent for mineral land from the United States; had established his right to the land claimed by him, and received his patent." The suit instituted in the local court by the placer patentees against

the North Star lode claimants was, therefore, not an adverse proceeding within the purview of the statute, and the judgment rendered therein, while entitled to great respect, can not be accorded the conclusive effect which attaches to a judgment rendered in an adverse proceeding such as is contemplated by the statute.

The principal question arising upon these facts is: Is the ground embraced in the North Star claim public land of the United States and as such subject to present disposition by the land department, or did the title thereto effectually vest in the placer claimants upon the issuance of the placer patent? That question could probably be determined only by inquiring whether the entire surface area of the South Star claim as originally located, was absolutely and forever excepted from the placer patent by the provisions of section 2333 of the Revised Statutes. See Elda Mining and Milling Co. v. Mayflower Gold Mining Co. (26 L. D., 573) and Cape May Mining and Leasing Co. v. Wallace (27 L. D., 676, 679).

The difficulties in reaching a correct solution of this question are such that the Department believes it better to withhold a decision thereof until a case is reached wherein the opposing views and arguments are fully presented, so that the decision may be based upon full consideration thereof.

If the title to the ground for which patent is here sought effectually vested in the placer claimants upon the issuance of the placer patent, they are the only persons who will be injured or who can complain if a lode patent is now issued to the North Star claimants for the same ground.

The placer claimants, however, seem to have acquiesced in the judg ment of the State court rendered against them in their suit against the North Star claimants; and although having full notice of this proceeding in the land department, they are making no objection to the issuance of patent to the North Star claimants, and are not contesting the jurisdiction or authority of the land department in the premises. Under these circumstances, the decision of your office is reversed, and the North Star mineral entry will be passed to patent, if the claimants are otherwise entitled thereto.

A paper is found among the files which purports to be an adverse claim against the North Star application, filed by Robert M. Cobban and William F. Cobban, claimants of the Midnight lode. Whether this adverse claim was filed in time, and what, if any, proceedings have been had thereon, are matters which have not been considered, but will be left to the disposition of your office.

PROCEEDINGS ON SPECIAL AGENT'S REPORT-NOTICE.

JOHN C. MILLER.

By the circular of July 31, 1885, directing the manner in which notice of proceedings on a special agent's report shall be served, personal service, if the claimant can be reached, together with notice by registered mail is requisite to confer jurisdiction.

The case of United States r. Dana, 18 L. D., 161, modified.

Acting Secretary Ryan to the Commissioner of the General Land Office, (W. V. D.). January 24, 1899. (W. A. E.)

September 24, 1883, George H. Miller made timber land entry for the SW. of Sec. 22, T. 24 N., R. 5 E., Olympia, Washington, laud district. After due notice, final proof and payment were made and final certifi cate was issued.

June 25, 1886, a special agent of the General Land Office reported that

this tract is in my opinion underlaid with coal. Coal veins of the New Castle mine on Sec. 27, just south, run north. There are indications of coal all along coal creek, which runs through this tract. Very hilly, rough, and precipitous land. Covered with a fair growth of fir timber.

August 20, 1886, your office held said entry for cancellation upon this report, and directed the local officers to notify the claimant that he would be allowed sixty days in which to apply for a hearing to show cause why his entry should be sustained.

In accordance with these instructions, notice was sent by registered etter to the claimant at the address given by him at the time of making his entry and this letter was received and receipted for by John C. Miller, a minor son of the claimant. The report of the special agent showed that the claimant himself was in jail at that time under indictment for murder.

No action having been taken by the claimant within the time allowed, the entry was canceled by your office letter of November 23, 1886.

November 25, 1890, Thomas J. Mullarkey filed coal declaratory statement for the land in question, and on January 26, 1891, Alfred F. Germain made homestead entry thereof.

August 11, 1891, after due notice, Germain submitted final commutation proof, and Mullarkey protested, alleging that the land is more valuable for the coal it contains than for agricultural purposes. A hearing was had, and resulted in a finding that the land did not contain any valuable coal, whereupon the protest of Mullarkey was dismissed by the local officers. On successive appeals, the action of the local office was affirmed by your office on November 12, 1892, and by the Department on February 19, 1894, thus, in effect, establishing that the charge made by the special agent against Miller's entry, and upon which it was canceled was untrue.

May 29, 1896, the local officers served notice on Germain, requiring

him to complete his entry by payment for the land, on the proof submitted by him, but it does not appear that he has yet complied with this order.

February 6, 1897, John C. Miller, as administrator of George H. Miller, deceased, filed an application to have the timber land entry of said George H. Miller reinstated, and the homestead entry of Germain canceled.

It is alleged in this application that at the time the hearing was ordered on the report of the special agent, the said George H. Miller was confined in jail, in King county, Washington, charged with murder; that on account of this legal detention he never received notice of the hearing; that he remained in jail until late in the year 1888, when he was released, his health shattered and his mind seriously impaired; and that he lingered in this condition until July, 1894, when he died.

This application was denied by your office for the reason that notice of the order holding said entry for cancellation and of the right of the entryman to apply for a hearing was sent to his last known address, by registered mail, on August 30, 1886, and was received and receipted for on the following day by John C. Miller, then a minor, who, it appears, is the son of said entryman and the same person who now, as administrator is applying for the reinstatement of the entry.

From this action of your office the applicant has appealed.

This case involves several questions in regard to the proceedings upon a special agent's report, and a brief preliminary examination of those proceedings would not be out of place.

For many years the Department has employed special agents to investigate and report upon entries in order to prevent frauds upon the government. At first, these reports were accepted by your office as final, and an entry was canceled upon an adverse report without giving the entryman an opportunity to be heard.

In "The Le Cocq Cases" (2 L. D., 784), however, the Department put an end to this practice, and directed that thereafter no entry should be canceled on a special agent's report until the entryman had been given an opportunity to appear and defend himself. Your office then adopted the practice of holding the entry for cancellation upon the report and directing the local officers to appoint a day for hearing and notify the entryman thereof, the burden of proof being thrown upon him. In the case of George T. Burns (4 L. D., 62), it was directed that thereafter in hearings ordered upon a special agent's report the burden of proof should be upon the government. No change, though, was made in the practice of immediately holding the entry for cancellation upon the report.

By circular of July 31, 1885 (4 L. D., 503), the practice of ordering hearings as a matter of course and without application, in cases of entries held for cancellation on special agents' reports, was discontinued, and it was directed that thereafter when an entry was so held