for the Woodville placer mine, Lot No. 43, T. 16 N., R. 9 E., Mt. Do. Mer., rejecting the adverse claim asserted by C. H. Seymour, as the same was not filed in due time, and as the law directs.

On the second May, 1877, there was received from Mr. Seymour a communication, in which he states that he appeals from said decision, and also makes application for a review of said case.

This communication was accompanied by a certified copy of the notice of location of the Woodville claim; an abstract of title to the Nebraska mine, and the sworn statement of said Seymour, in the nature of a protest against said application for patent. Although in the letter of transmittal Mr. Seymour uses the word "appeal," the papers filed by him are rather in the nature of a protest, and are so referred to by him in his subsequent communications and in those of the attorney for said applicants, and there can be no doubt that he intended them as such. On the twelfth of May last, the attorney for said applicants filed his motion to dismiss said protest. On the twenty-eighth May Seymour filed an argument in support of his application for a reconsideration of said decision, and in support of his protest. Other letters, arguments, and additional evidence have been filed by the attorneys for the respective parties.

It is urged by the attorney for the applicants for patent that a rehearing should not be granted in this case, as Seymour has already been accorded his day in court.

The only question determined by decision of this office of March 22 last was that a judgment of the court against the applicants for patent and in favor of a third party can not operate as a bar to the issuance of a patent to applicants who have shown compliance with law, unless such judgment is based upon a suit brought upon an adverse claim filed in the manner and within the time prescribed by the statutes.

This office is only authorized to issue patents for mineral claims where there has been a substantial compliance with the prerequisite conditions imposed by the statutes, and the proofs submitted are carefully examined, not only in contested but in ex parte cases.

As in the case under consideration the law has been

strictly enforced against a party who, notwithstanding he failed to assert his adverse claim within the statutory period, has been adjudged by a court of competent jurisdiction the rightful owner of a portion of the premises in question, so should the law be strictly enforced against the applicant.

Among other objections, it is urged by the protestant that the notice of said application for patent was not published in accordance with the requirements of law. It appears by the sworn statement of N. P. Brown, which has been filed in this case, that for more than ten years last past he has been one of the owners of the Nevada Daily Transcript, a newspaper printed and published every day in the week except Monday, in Nevada City, California. That said notice was published in said newspaper on Saturday, February 28; Sunday, March 1; Tuesday, March 3; and that the notice next appeared on the tenth March. That the notice appeared in each issue of the paper thereafter until the second of May, 1874, with the exception of the eighteenth and twenty-second of March and the sixteenth and seventeenth of April.

Section 2325 of the Revised Statutes of the United States requires the Register, in case of application for patents for mining claims, to publish the notice in a newspaper to be by him designated as published nearest the claim "for the period of sixty days."

In the case of McMurdy et al. v. Streeter et al., the Hon. Secretary of the Interior held that the law "does not direct a publication once a week for eight weeks or two months, but for a certain period, viz., sixty days. The publication may undoubtedly be made in a paper published weekly, but it must cover the full period named. The time elapsing between the first and last insertions must include the full period of sixty days."

Irregular publication.

From the tenth of March to the second of May, the notice appeared in every issue of the paper excepting four, but prior to March 10 the notice appeared but three times, and a week intervened between the third and fourth insertions of the notice.

The publication of the notice appears, therefore, to have been irregularly made.

It is also urged that the Woodville placer claim is a relocation of the Nebraska placer mine, the title to eight twentieths of which is in said protestant.

The applicants for patent do not deny that the Woodville location is a relocation of the Nebraska mine, but on the contrary assert that the Nebraska location had been abandoned before the date of the relocation as the Woodville mine.

Said claim was not subject to relocation as abandoned, unless the same had in reality been abandoned, and become subject to relocation under the local laws and congressional enactments.

It appears that the Nebraska claim was located more than twenty years ago, and that on the second of May, 1867, the then owners, C. H. Seymour and others, made record of a plat of their claim and a notice "that they intend to work the said ground as soon as they can do it with safety and security to justify them in making the great outlay and expenditure necessary for opening and working their ground.” It also appears by the abstract of title filed by said applicants that subsequent to the date of the record of said plat and notice in the County Recorder's office, transfers were made. of several interests in said Nevada claim in the years 1868, 1870, and 1875.

When a mining claim is subject to relocation.

When mining land has once been legally appropriated by a location made in conformity with law, it can not be legally relocated until the first location thereof has become forfeited for non-compliance with law.

By the judgment roll of the fourteenth judicial district court, California, in case of Seymour v. Woods et al., which has been filed in this case, it is shown that the court, after a full hearing of the case, rendered judgment for the plaintiff.

This suit virtually determined the very question now under consideration, viz., whether the Nebraska location had been abandoned or not; and it was decided in the negative.

As, therefore, the Nebraska location had not been abandoned, but was a subsisting, valid claim, the premises embraced thereby could not legally be included in the Woodville location.

Had the Woodville locators acquired the interests of the respective owners of the Nebraska mine, or associated themselves with the Nebraska owners, with the consent of such owners, a relocation could have been legally made, and in no other manner.

Patent can not, therefore, issue for said premises to said. applicants, as the case now stands.

Should the said applicants file in this office the duplicate Receiver's receipt, with an assignment indorsed thereon to the respective owners of the Nebraska mine of their respective interests in the same, patent will issue in the name of said applicants and said assignees. Should, however, said applicants fail or refuse to file said Receiver's receipt indorsed as above indicated, said application for patent will be rejected.

You will inform all parties in interest, and acknowledge the receipt hereof, allowing sixty days for appeal.

Very respectfully,

Your obedient servant,

J. A. WILLIAMSON, Commissioner.

No. 23. Application for patent for a mining claim withdraws the same from further application, and the conflicting claimant can only protect his right by filing an adverse claim and bringing suit.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, D. C., Sept. 27, 1880.

MONTGOMERY BLAIR, Esq., City.

SIR: I have considered your request filed in this office on the twenty-third ultimo, for a review of decision of the Acting Commissioner, dated tenth ultimo, dismissing the application of J. B. Haggin for patent to the Hurricane lode, situate in Washington mining district, Calaveras county, California.

Said application was dismissed upon the ground that a great portion of the land applied for was included in the pending application of André Chavanné, and hence at the date of Haggin's application the same was not in market

Chavanne's application for patent was received by the local officers and an order for publication given. Entry was refused, however, and an appeal taken to this office; but before such refusal, the register received Haggin's application and directed notice thereof to be published. The decision of this office rejected Chavanne's application, and allowed sixty days for appeal, which have not yet elapsed. Said decision will not be operative until the time. allowed for appeal has expired.

Chavanné filed an adverse claim against Haggin's application and brought suit to determine the right to the land. It is urged that said adverse claim is insufficient, is not good upon general demurrer, and should be dismissed. It will not be necessary to consider this objection unless the former ruling dismissing Haggin's application shall be reversed.

Reason of rule.

The rule which forbids the reception of an application for patent to a mining claim which conflicts with a claim embraced in a prior pending application is derived from that provision of the statute which prescribes the filing of adverse claims. Where the statute prescribes one way in which a thing shall be done it precludes every other. Chavanné having made application for patent to the Elk mining claim, Haggin, as owner of a conflicting claim, had but one method open to him to protect his interest and have his right determined.

But you now urge that, this office having decided that Chavanne's application was invalid and illegal, it was in reality no application at all, and hence the subsequent application of Haggin should be allowed to stand, the whole object of the prohibition of a second application being to compel another claimant to institute proceedings in the local court, to test the right of possession of the first applicant, and the whole reason of the prohibition fails where the first application is invalid, for no adverse claim need be filed against the application which is illegal and invalid upon its face.

But the statute goes further, and after limiting the time within which an adverse claim may be filed provides that