can be recognized as an end line, and the boundaries of the claim shall be marked This view was not controverted at the hearing, but it was said that end lines may be a matter of legal inference and deductions from established facts, to control even the act of the locator of the claim. As the law requires that a location shall be made along the course or strike of a vein at the surface of the earth, the end lines must of necessity be at right angles to the course. And whenever the course or strike can be ascertained, at the points where it passes from the location, end lines should be fixed at right angles thereto, without reference to the end lines laid in the location. To apply this rule to defendant's claim, lines should be drawn parallel to each other at each end, and where the outcrop of the vein is said to pass out of the location, and in the general direction east and west, the strike of the vein being north and south. The circular form of outcrop is thought to be the result of erosion in California gulch, which comes down through the middle of the claim; and at some remote time the outcrop may have extended directly across the gulch between the ends of the claim, so as to admit of a location in the usual form with end lines as now proposed to be laid, in the general direction east and west. It is contended that in the location of a claim, which must of necessity be made before the strike of the lode can be ascertained, it is too much to expect the locator to lay his end lines in the proper direction; and locations made at various angles of divergence from the strike of the lode are cited to illustrate the fact that by a slight deviation from the proper course the object of making a location may be defeated. This, however, is only to say that it is difficult to make a good location of a mining claim when the situation of the ore is unknown, and that if the locator fails to lay his claim so as to secure the ore, the law should correct his mistake. Plainly enough, the law requires the locator to fix the boundaries of the claim, offering the bounty of the Govment to the extent of the public domain from which to make the best possible selection. If the locator fails to choose wisely and well, the failure is with him, and it cannot be imputed to the law. There is no greater reason for saying that the end lines shall be established by inference and presumption from the course of the lode, than that the side lines shall be so established. The rule of the early miners' law, which obtained in some mining districts before the statute was enacted, was of the character which we are now asked to adopt. By locating on the The Register and Receiver of the Dis on the ground, and end lines and side lines trict will give further notice of the precise are referred to in a way to show that they time when they will be in readiness to remust be laid down with care. Under such ceive applications for the lands embraced a statute, it cannot be necessary to discuss within the limits of the District as now at length the power of the Court to estab-constituted. lish lines by construction, for no such Given under my hand at the City of power can exist. The end lines established Washington, this twenty-sixth day of Deby the locator must control; and if absent cember, A. D., eighteen hundred and eightyor so placed as not to define the right of three. the locator to the exterior parts of the lode, the defect cannot be supplied. By the President: L. HARRISON, Acting Commissioner General Land Office. HOMESTEAD PATENTS ISSUED. COPP'S LANDOWNER for this month reports the following final numbers of Homestead Patents issued and set to the below-named land-offices: ARIZONA. PRESCOTT. In that case the location may be valid for all that can be found within the surface lines, but beyond those lines an essential element of the right to follow the lode is wanting, and therefore the right cannot exist. With some information as to the situation of the ore and the law relating to the subject, the end lines of the Stone claim could have been laid as it is now said they should be placed, and the failure to do so was owing to ignorance of facts necessary to intelligent action. It pre- 2976, 2977, 2979 to 2934 inclusive, 2386 to 2997 inclusive. sents the common case of failure to obtain property through a mistake of fact or law, for which the party seeking the property is alone responsible. Against such error and misfortune the law does not relieve. Nos. 39, 41, 43, 45, 47, 53, 54, 55, 56, 58, 59, 61, 62. Nos. 1769, 1955, 2824, 2964, 2966 to 2973 inclusive, 2973, CALIFORNIA. BODIE. Independence and Bodie Series, Nos. 50, 58, 111. COLORADO. No. 1. Nos. 1, 2, 7, 9. DURANGO, DAKOTA. HURON. MINNESOTA. TRACY. New Ulm and Tracy Series, Nos. 1691, 4134, 4626, 4771, At the hearing on plaintiff's motion for injunction to restrain the Iron Company from working within the limits of the Gilt Edge claim, these reasons were thought to be sufficient to support the application, and the injunction was allowed. Recently 4773 to 4777 inclusive, 4783, 4785, 4788, 4792, 4811, 4812, 4836, the defendant has brought in a cross-bill, 4929, 4930. 4935, 4936, 4937, 4939, 4910, 4941, 4943, 49H, asking to enjoin the plaintiff from work-4946, 4947, 4948, 4949, 4952, 4793, 4807, 4845, 4817, 4865, 4556, ing in the same ground; and on that motion the whole subject has been reviewed, with the result now to be stated. 4827, 4829, 4830, 4831, 4832, 4841, 4842, 4922, 4923, 1925, 4:28, 4868, 4869, 4871 to 4880 inclusive, 4882 to 4886 inclusive, 888 to 4392 inclusive, 4894, 4895, 4895, 4898, 4900, 4901, 4902. 4904 to 4909 inclusive, 4911, 4912, 4914, 4915, 4918, 4919, 4920, 4921. WASHINGTON TERRITORY. WALLA WALLA. The defendant, in virtue of its ownership of the Stone claim, has no right to inclusive. 851, 852, 853, 855, 856, 857. anything beyond the lines of that claim, in any direction, and therefore the motion must be denied. Nos. 381, 419, 447, 613, 820 to 831 inclusive, 833 to 849 [No. 895.] NOTICE OF THE CHANGE OF BOUNDARY OF THE GARDEN CITY LAND DISTRICT IN THE STATE OF KANSAS. to the below-named land-offices: KANSAS. INDEPENDENCE. No. 3104. Osage Ceded Lands. TOPEKA. CASH PATENTS ISSUED. COPP'S LAND OWNER for this month reports the issuance of patents on the Cash Entries Notice is hereby given that the Presi-numbered below, which patents have been sent dent of the United States has directed that the boundaries of the Garden City Land District, in the State of Kansas, shall be as follows: Commencing at a point on the southern boundary of the State of Kansas intersected by the range line between ranges 20 and 21 west; thence north along said range line to the northeast corner of township 25 south, range 21 west; thence west to the northeast corner of township 25 south, range 25 west; thence north along the 3d guide meridian west to the northeast corner of township 21 south, Nos. 1, 12, Kansas Trust Lands, also Nos, 2584, 4261, 4263, 4267, 4269. MINNESOTA. BENSON. Nos. 4459, 4486, 4898,"4899, 4914, 4915, 4918, 4920, 4925, 4926, 4928, 4931, 4934, 4935, 4938, 4941, 4945, 4949, 4951, 4956, 4957, 4959, 4960, 4962, 4965, 4971, 4975, 4983, 5003, 5005, 5007, 5008, 5011, 5012, 5013, 5015, 5023, 5024, 5032, 5033. 5040, 5041, 5048 5053, 5066, 5068, 5079, 5085, 5091, 5092, 5094, 5095,, 5105, 5108, 5113, 5116, 5123, 5124, 5125, 5126, 5127, 5134, 5143, 5148, 5149, 5150, 5153, 5172, 5174, 5479, 5180, 5181, 5184, 5185. 5199,900. 520, 520, 5209, 5214, 5215, 5218, 5223, 5225, 5226, 5228, 5229, 5231, 5234. NEBRASKA. BLOOMINGTON, Nos. 1217, 1345, 1350, 1402, 1420, 1428, 1430, 1499, 1523, 1558, vein the miner secured the number of feet range 25 west; thence west along the 4th allowed him, wherever it might extend, standard parallel south to the western with surface ground adjacent; and of boundary of the State; thence south along 1565, 1819, 1962, 1985, 1993, 2017, 2018, 2020, 2025, 2027, 2030, course the boundaries of the claim could said western boundary to the southern 2034 2035, 2037, 2041 2047, 2050, 2056, 2059, 2066, 2070, 2071, only be known from the course of the lode. boundary, and thence east along said 2076, 2079, 2050, 2086, 2088, 2030, 2092, 2094. By the Act of Congress that rule was southern boundary of the State of Kansas changed, and it was required that the to the place of beginning. OREGON. OREGON CITY. No. 1840, in favor of S. N. Sprague. VOL. X. COPP'S LAND OWNER. WASHINGTON, D. C., FEBRUARY 1, 1884. Entered at the Post Office at Washington, D. C., as second-class matter. THIS NOTICE MARKED with a blue or red pencil indicates that your subscription expires with this issue, and if you wish the paper continued without interruption, you should remit your renewal subscription at once. Parties renewing their subscriptions will find it advantageous to send $1.00 for their card in the Land Directory one year. CONTENTS. PAGE THIS paper furnishes more valuable law information for less money, and is read by more land attorneys and real estate dealers, by more homestead, pre-emption, and other land claimants, and by more mine owners, engineers, and superintendents, than any other publication in the United States. INDEX TO VOLS. 1 TO 9. 337 338 AN effort is making to pass through Congress a mining law for Alaska territory. WASHINGTON territory is ablaze with mining excitement. Idaho is also attractA. O. Whipple-Calvin L. Wilson-Eben Bugbee. 343 ing many prospectors for minerals. HOMESTEADS. Walter H. Smith, Washington, D. C.... IV IV Riddle, Davis & Padgett, Washington, D. C.. II It is barbarous and stupid, if suspicion of something worse be absent, to destroy the property rights of settlers and miners who have proceeded according to the law as laid down by the Land Department. THE West Coast Reporter, edited by Judge Pomeroy, and published by A. L. Bancroft & Co., San Francisco, is a new legal journal that will give weekly the important decisions of the U. S. circuit and district courts and of the supreme courts in the States and Territories on or adjacent to the Pacific coast. Price $10.00 per annum. HAMILTON'S "Resources of Arizona,' No. 21. HAVE you bought the new 26 Metalstrip Binder for the LAND OWNER? Get two new subscribers, and it will be sent to you free. An attorney in Northern Dakota has obtained two binders in this way. ARE you not making a serious mistake in failing to purchase Copp's Public Land Laws? See advertisement on 4th page of Cover. LAND WARRANTS. Have you military bounty land warrants NOT properly signed? I buy such. Will buy and sell locatable warrants at the standard market prices. Address, Editor of LAND OWNER. FOR SALE TO HIGHEST BIDDER. Three soldier's additional homestead certificates one of 40 acres, one of 80 acres, and one of 120 acres. Send your bid by mail or telegraph to Adolph Munter, Montgomery, Ala. t LAND PERSONALS. ATTENTION is called to the card, in the Land Directory, of Edwin Baxter, Los Angeles, California. If this gentleman is as able a land lawyer as his distinguished brother in Assistant Attorney General McCammon's office, the City of Angels is to be congratulated on his acquisition. DUMENIL & CALVERT are the vigorous real estate and land lawyers of Iuka, Kan sas. See their card in the Land Directory. W. W. WISHART, of Devil's Lake, Dakota, has been detained in Washington by the business of his numerous clients. F. M. HEATON, of Huron, is again in Washington on behalf of Southern Dakota land investors and settlers. PRACTICE. DEMOTT VS. DAY. Prepared Testimony Cross-Examination. — A hearing may be had on testimony prepared by plaintiff's attorney in his office, if accepted by defendant's attorney with privilege of crossexamination. ACTING COMMISSIONER HARRISON to Reg. and Rec., Bloomington, Neb., December 20, 1883. (R. F. F.) I have considered the case of Edwin IV with its 275 pages of interesting and De Mott vs. Almira M. Day, involving III III IV Iv authority of the legislature. It appears that when the case was called SCHLOSMAN VS. JOHNSON. SECRETARY TELLER to Commissioner McFarland, January 7, 1884. for trial the plaintiff's attorney submitted the receipt thereof at the local office. Your decision is accordingly reversed, the written testimony prepared by him at Rule 14 of Practice does not specify the and the case remanded for hearing upon his office, of plaintiff and his witnesses, with time when a registered letter shall be its merits. a proposition to permit defendant to cross-mailed. It appears to have been inferenexamine the said witnesses; that the tially held that the two weeks before hearproposition was agreed to by defendant, ing during which notice under Rule 14 is but notwithstanding you rejected such to be posted on the land is the time retestimony; whereupon, the plaintiff fail- quired for a registered letter to be mailed *** Schlosman gave notice of appeal ing to introduce any other evidence, you in advance of hearings. This construction therefrom, but failed to file any points of dismissed the contest on motion of de- was reasonable, and the mailing of letters exception as required by Practice Rule 45, fendant; and it is from said action that in accordance there with was a sufficient and this mere notice was without effect. the plaintiff appeals to this office. compliance with the rule prior to the pro- In the absence, therefore, of a valid appeal mulgation of different instructions. the decision of the local officers should You are moreover advised that when have been held final, without further acnotice is given by publication, it is the tion by you. publication that constitutes legal notice, not the registered letter. The latter is the transmittal of a copy of the legal notice, and is a requirement adopted to secure actual as well as constructive notice in cases of publication. This requirement must be observed for the reason upon which it is founded, and the rule that such copies shall be mailed at least thirty days in advance of hearings will be strictly ad Your decision was based on the ground that when both parties appear for trial, as was the case in the present instance, the examination must be made orally in the presence of the Register or Receiver, and that the testimony must be written down by one or the other of said officers. Such is the regular course of procedure, but there is no objection to parties stipulating to waive oral examination before the local officers, and submitting an agreed statement of facts or testimony taken in the manner and with the reservation herein before mentioned. Hence, I think the evidence offered by plaintiff's attorney should have been received by you, on agreement of defendant to accept the proposition of the former to cross-examine. The case is therefore remanded for further trial, and you are instructed to allow the introduction of the evidence proffered by the plaintiff's attorney, with privilege of cross-examination by defendant of plaintiff and his witnesses, as agreed upon by the parties. BUTTERFIELD AND PHELPS. Hearing Notice - Registered Letter Thirty Days.-The instructions of August 13, 1883, are not retroactive. Copies of published no tices must be mailed to last known address at least thirty days in advance of a hearing. COMMISSIONER MCFARLAND to Reg. and Rec., Farge, Dakota, Jan. 15, 1884. (J. W. L.) I am in receipt, by reference from the Department of Justice, of a letter addressed to the Hon. Attorney General on Dec. 20, 1883, by Messrs Butterfield and Phelps, of Montrose, D. T., relative to the matter of mailing by registered letter a copy of the published notice in contested cases to the last known address of each person to be notified. The writers refer to Rule 14 of Practice requiring such mailing, and to the letter of this office of August 13, 1883, addressed to you (Copp's L. O., vol. 10 p. 189,) in which you are instructed that the rule requiring at least thirty days notice of hearings would be deemed applicable to such registered letters, and they inquire whether the latter ruling should be deemed to have a retroactive effect, stating that under the construction of rule 14 which had previously prevailed in the practice at district land offices, registered letters had been mailed two weeks in advance of hearings instead of thirty days. You are advised that the instructions of August 13, 1883, take effect only from hered to. CROSS VS. BOWMAN. Hour of Day-Adjournment. Where the local officers fail to fix the hour of day to which a This motion you granted. On the other hand, it is urged by de- As you did not fix the hour to which the hearing was adjourned in this case, and as the plaintiff actually appeared, as before stated, it is my opinion that you erred in dismissing the contest under the circumstances. MINES AND MINERALS. ESPERANCE MINING COMPANY. Conforming to Legal Subdivision.- Reasonably Practicable.-As in this case, where part of a legal subdivision is non-mineral land, and the gold deposit is a ravine, a location that follows the mineral deposit conforms to the public surveys as nearly as practicable. SECRETARY TELLER to Commissioner McFar land, January 3, 1884. I have considered the appeal of the Esperance Mining Company from your opinion of September 6, 1883, holding for cancellation its mineral entry No. 134, made May 6, 1882, upon the Empire Placer Mine Consolidated, in sections 25 and 36, Tp. 17 N., R. 7 E., Marysville, California. It appears that an area of 41.72 acres is embraced in said claim, and that it has a length of about two miles, and a width varying from eight to seventy feet, embracing the bed and following the meanderings of a part of the South Yuba river and Allison's ravine. The appellant has filed evidence showing that the greater part of the adjacent lands is non-mineral, that it was at the date of location occupied and used for agricultural purposes (though it appears that the records of your office fail to show any legal appropriation of it), and that the placer lies between precipitous banks. For these reasons it is urged that the claim conforms, "as near as practicable," to the legal subdivisions; but your decision repealing that of May 19, 1873, (Copp's Mineral Lands, p. 138), holds to the contrary. I think that the word "practicable" in Sec. 2331, R. S., means reasonably practicable, and that in this case it would be unreasonable to require the appellant to conform his location to the legal subdivision; therefore I am of opinion that the claim conforms as near as praeticable to the lines of the public surveys. Your decision is therefore reversed. WILLIAM RABLIN. Same question as above. SECRETARY TELLER to Commissioner McFarland, January 5, 1884. I have considered the appeal of William Rablin from your decision of January 16, 1883, holding for cancellation his mineral entry number 819, for the Bear River Extension Placer, in Sections 12, 13, and 14, 46 1884.1 COPP'S LAND-OWNER. Township 15 N., Range 9 E., Sacramento land district, California. Section 2326 prescribes the method of procedure "where an adverse claim is filed during the period of publication." As to the additional reason for cancel- ment to the proper officer of five dollars lation suggested in your decision, namely, per acre, and that no adverse claim exthat it is against public policy to allow ists." placer mining in the beds of unnavigable streams, and that the patentee would obtain a right to and control over the water, it is not necessary to discuss these points at length, I think. It is well settled that if the beds of unnavigable streams contain mineral deposits, they may be appropriated for mining purposes, and that, as to the water, the locator obtains only an usufruct in it. For these reasons your decision is reversed. MINER VS. MARRIOTT ET AL. Publication For the purpose of deciding the question raised by the appeal, it is only necessary to apply the provisions of law above cited to the facts relative to publication, as disclosed by the record. These are found to be as follows: The first publication for the Tabor lode was, as already stated, on the 1st of June, 1882. The adverse claim of Miner was filed on the 3d of August, 1882. Excluding, in accordance with a long established rule of How to the Department, the first day, we find the Count Sixty Days.-Filing Adverse Claim.-In 3d of August to be the 63d day of publiweekly newspapers, mining application no- cation. tices must be published 10 times successively. An adverse claim must be filed within sixty flays, not sixty-three days as heretofore. Cross Applications-Suits Pending in Court.The adverse claimant in this case filed an application, and the prior applicant filed an adverse, and commenced suit. Instead of the second application being dismissed, both applications are suspended until judgment is rendered in one or both suits. I have considered the case of Charles It appears that the location was made since 1872, and after official survey of the adjacent territory, that it covers the bed of Bear River for some twelve thousand feet, and a small quantity of surface ground along its banks, and that it does not conform to the system of surveys. From the evidence on file it appears that the "Bear River" is a very small, unnavigable stream, winding through a canyon, with precipitous, nonmineral and uncultivable banks, wherein have accumulated extensive placer deposits, which are embraced in said location. Your decision is grounded on the alleged fact that the location does not conform as near as practicable" to the system of public surveys, for the reason that the law requires "that placer locations upon the surveyed lands shall conform to the public surveys in all cases, except where this is rendered impossible by the previous appropriation or reservation of a portion of the legal subdivision of ten acres upon which the claim is situated." I think should that Sections 2329 to 2331, R. S., not receive so narrow a construction. Whilst they provide for ten-acre subdivisional surveys, they also contemplate cases where it is not practicable to conform the location to such subdivisional lines. They do not limit such cases to those where there has been a prior appropriation of a part of the subdivision, but extend it to every case where it may be impracticable to so locate the claim. The expression as near as practicable," is therefore to be read as near as reasonably practicable," and in each case presenting itself, a sound discretion must be exercised in determining the question of practicability. It would be manifestly improper to limit it to a single case, namely, a prior appropriation of part of the subdivision, as your office seems to have done; for such a case is provided for by the general laws concerning the disposal of public lands, and in the placer-mining statutes Congress has evidently intended to provide for cases where the situation of the deposits is such The Tabor lode claimants averred that that conformity of the location with subdivisional lines is unreasonable. It was the adverse was not offered for filing the intention of the mining laws generally, within the time prescribed by law, i. e., to permit persons to take a certain quan- within the legal period of publication, and tity of land fit for mining, and not to com-therefore that its acceptance by the local pel them to take such a quantity irrespec- office was wrong and illegal. Your office upon an examination of the tive of its fitness for mining. The act of July 9, 1870, which expressly required case sustained the action of the local offiplacer locations to conform to the lines of cers, and decided that the adverse claim the public surveys, was unreasonable, a filed with them August 3, 1882, was prohardship, and in contravention of the es- perly received, and on this question the tablished custom of the mining regions; case is now before me on appeal. Section 2325 of the Revised Statutes therefore it was modified by the act of May 10, 1872, so as to provide for excep- requires, among other things, newspaper tional cases where reason and common publication for the period of sixty days, sense required a different regulation. Such as notice of application for mineral patent. an exceptional case, in my judgment, is that now before me, where the entire placer deposit in a canyon within certain limits is claimed, and where the adjoining land on either side is totally unfit for mining or agriculture. Application for the Tabor Lode was made May 26, 1882, at the Leadville land office. Publication was commenced in the Colo- Miner, the Spencer Lode claimant, It also provides that "if no adverse claim shall have been filed with the Register and Receiver of the proper land office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the pay An apparently plain and simple proposition is thus presented for consideration. The law requires that an adverse to be effective must be filed within the sixty days of publication. not filed Miner's adverse claim was until the sixty-third day. Was it filed within the period prescribed by the law, as such? This would admit of no discusand has the adverse claimant a legal status sion except for the following facts. This Department has held for a number of years (certainly since 1874) that where ten insertions are essential in order to publication is made in a weekly newspaper, show compliance with the law requiring tenth issue falls on the sixty-third day sixty days publication. In such cases the after the first. In view of this ruling of 1879, promulgated a decision or order the Department your office in October, containing the following: "The last, or tenth, insertion being essential, it follows expiration of the day upon which the last that adverse claims may be filed until the issue of such weekly publication is made." This rule has since been followed by your office, and you therefore recognize as legal and valid the adverse claim of Miner, filed on the day of tenth issue of paper containing publication, i. e., on the sixty-third day. In my opinion the practice of your office referred to is not necessary as a logical result of the rule requiring ten insertions in a weekly paper, nor is it contime within which an adverse claim may sistent with the law which prescribes the be filed. Section 2325 of the Revised Statutes * * * at specifically fixes sixty days as the period of publication, and says "if no adverse the expiration of the sixty days of publiclaim shall have been filed cation, it shall be assumed that the applicant is entitled to a patent," etc. The regulation requiring ten publications, (in a weekly paper,) thus in fact making the period sixty-three days instead of sixty, does not alter the law as to sixty days for the filing of an adverse. The regulation has its reason in the fact that in no other way can the law requir ing sixty days publication be complied with. Nine issues of a weekly paper would not cover the required period. It is true that the tenth insertion carries the publication three days beyond the legally required sixty days, yet for the purpose of meeting the requirement of law ten insertions are in fact necessary, since the continuity for sixty days can be preserved only by the tenth publication which falls on the sixty-third day after the first. It is also true that the applicant cannot proceed to complete his entry until after the tenth publication, but this is because it is essential as proof of sixty days publication. These reasons do not apply to an adverse claimant, and his acts are not controlled thereby. He has the plain letter of the law for his guide. His course is clear and his duty plain. He has sixty days on any one of which he may file his adverse claim. If he fails to file within the sixty days of publication prescribed by the law, he is barred. So far as he is concerned the question is one of very simple computation. It would be equally plain as to the applicant, except for the reasons herein given, and which do not control in considering the rights either legal or equitable of an adverse claimant. You will by circular letter notify the local land officers of the rule herein laid down, and when it shall have been so promulgated, require its observance. So far as the case under consideration is concerned, however, your decision that the adverse claim was properly received, and therefore dismissing the appeal, is affirmed. The rule of this decision should not operate to interfere with or take away any rights acquired under the law as it has heretofore been construed by your office. Though that construction is, in my opinion, clearly erroneous, such fact does not render illegal any acts which have been performed in accordance with and pursuant to that construction or interpretation. Until a rule is changed it has all the force of law, and acts done under it while it is in force must be regarded as legal. This view will govern you in the consideration of any similar cases which may arise. Since your decision in the Spencer lode us. Tabor lode case, and the appeal there from, to which this decision thus far has had sole reference, another case-that of the Tabor lode vs. the Spencer lode-has come before me on appeal. Since it involves the same parties and in part the same ground, I think the two cases may properly be considered together, and disposed of in one decision. The appeal in the case last named is from your decision of September 1, 1883, adverse to the Spencer lode claimants, and comes up on facts substantially as follows: On the 29th of May, 1883, Charles K. Miner, the adverse claimant in the case discussed in the foregoing pages hereof filed in the local office his application for patent for the Spencer lode and made the required publication. The Tabor lode claimant moved to dismiss the Spencer lode application, on the ground of conflict with their prior pending application. They also duly filed protest and adverse, and commenced suit, which is now pending. Upon an examination of the case you dismissed the Spencer lode application, because it embraced land previously applied for and in regard to which a contest is at present pending, both in the courts and before this Department. On appeal from your decision it is urged in behalf of the Spencer lode applicant that pending the suit in the courts you had no jurisdiction, and therefore erred in dismissing his application; and 2d, if it be held that you have jurisdiction pending the suit, your action dismissing the application was certainly erroneous as to that portion of the Spencer lode not in conflict with the Tabor lode. On the last named date the Philadelphia Mining Co., by Samuel Alsap, Jr., as its agent, filed protests and adverse claims, setting forth its ownership of the Monument, Quaker and Wright locations, each conflicting in part with the Monarch No.1 claim. Appellants moved to dismiss the contest, assigning for reasons the following, generally: that the adverse claims and the papers and exhibits filed therewith do not show the nature, boundaries and extent of said claims, as required by the statute; that it does not appear from the claims that Samuel Alsap, Jr., is the authorized agent of the Philadelphia Mining Company, or that he had authority to make and file their adverse claims; that it is not shown by the papers filed that said Philadelphia Mining Company is a corporation, or that it is duly authorized to hold property in the State of Colorado, or do business in Pitkin county in said State. You over-rule the objections and deny the motion to dismiss. The facts which are made the ground of In view of the fact that suits are pend- the first objection are the absence of acing in both cases, to wit: Spencer lode vs. tual surveys of the adverse claims. In Tabor lode, and Tabor lode vs. Spencer lieu of these, plats made from the fieldlode, I am of the opinion that the ques- notes of the Monarch No. 1 lode and the tions involved may very properly be held location certificates of the adverse claims, in abeyance until a final determination of and certified by U. S. Deputy Mineral said suits, or at least of one of them. I Surveyor, were filed, with the explanation therefore vacate your decision dismissing on behalf of the company that, by reason the Spencer lode application, without pre- of the altitude of the locations and the judice to either party, and without deci- constant snows, an actual survey was not sion on the merits, pending the finding by practicable. This would seem to be suffithe courts. cient reason for recognizing the adverse, notwithstanding the counter affidavits on PHILADELPHIA MINING CO. vs. FINLEY. file, since it presents a prima facie case, Adverse Claim - Survey.-Where an adverse and apparently the best showing possible claimant instead of presenting actual surveys under the circumstances as to the bounda of his claims files a plat made from the field- ries, etc., of the adverse claims. The notes of applicant's survey and the location certificates of the adverse claims, certified by question as to the correctness of the plat U. S. Deputy Surveyor, with an explanation will be a proper one for the consideration that an actual survey is not practicable, such of the court, and can there be determined. plat is held sufficient. The second point of objection, to wit, Agent-Evidence of Incorporation.-Where the that it does not appear that Alsap, Jr., agent of an incorporated company signs the who made and verified the adverse claims, adverse claim in the usual form, as 66 'gen The adverse claims are made in the eral manager, agent and attorney in fact," is the authorized agent of the Philadelphia and verifies the same before a notary public, Mining Company, is not in my opinion and swears that the company is duly incorpo- sustained. rated according to laws of the State, further evidence of incorporation and power to hold usual form, and are over the following sig real estate is not required to bring the case into court. nature"The Philadelphia Mining CcmSECRETARY TELLER to Commissioner McFar-pany, by Samuel Alsap, Jr., General Manland, January 5, 1884. I have considered the case of the Monarch No. 1 Lode vs. The Philadelphia Mining Company, on appeal by the first named from your decision of November 22, 1882. The lodes in conflict are situated in Columbia Mining district, Pitkin county,| Colorado. Application for patent for the Monarch No. 1 lode was filed in the Leadville office on the 24th of February, 1882, by J. M. Downing, as agent for R. F. Finley et al. Publication was first made March 4, 1882, and continued in the Aspen Times, a weekly newspaper, until and including May 6, 1882. ager, Agent and Attorney in fact," and are verified by the affirmation of said Alsap, Jr., before a notary public, that he is general manager, etc., of said company, and that it is a corporation duly organized under and by virtue of the laws of the State of Colorado. This averment is for the purposes of the contest sufficient evidence of his relation to the company as its agent, and also of its existence as a corporation as alleged. This disposes of all the objections to the adverse raised by the appeal. Since the case came before me, however, one of the counsel for the appellants has in argument made the additional objection that the adverse claims, not having been |