No. 33. 1. The nature, extent, and boundaries of an adverse claim being shown, and suit having been brought thereon in a court of competent jurisdiction, the executive department is precluded from taking action, until the controversy has been settled or is decided by the court.

2. Where adverse relocations are made prior to the application for patent controversies as to right of possession growing out of such relocations must be adjudicated in the courts.

3. Where the alleged abandonment occurred subsequent to publication of notice of application for patent, and prior to payment and entry, the executive department would be compelled to take jurisdiction.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, D. C., October 21, 1880.

Register and Receiver, Sacramento, California.

GENTLEMEN: I have examined the matter connected with the appeal of C. J. Wheeler, applicant for patent to the Wildman Quartz Mine, Sutter Creek mining district, Amador, California, from your refusal to permit his entry of the

same.

It appears that Wheeler filed application for patent in your office, to said claim, October 2, 1879.

That said application was duly published as required by law, publication commencing October 4, 1879.

That during the period of publication, to wit, on November 13, William Sanger and David T. Davies, alleged owners of the Davies lode, filed their adverse claim in your office, and the same being in due and legal form, stay of proceedings was ordered by you.

That on the twenty-first of November, suit was commenced by said adverse claimants versus said applicant for patent, in the district court of the eleventh judicial district, in the State of California, which suit is now pending.

On the eleventh day of December next following, Wheeler made application at your office to make payment and entry of said "Wildman Quartz Mine," which application was refused by you because of said adverse claim, and the suspension of proceedings thereunder.

From your said action Wheeler appealed to this office, assigning in brief as exceptions:

1. That the pretended location of Sanger and Davies was not in accordance with section 2324 of the Revised Statutes, in that it was not marked on the ground so that its boundaries could be readily traced.

2. That the notice of said location omits to locate the pretended claim of Sanger and Davies, with reference to some actual object or permanent monument, so that it can be identified.

3. That the notice of location recites an untruth on its face, in this, "the foregoing description is taken from notice of official survey of said Wildman quartz mine, made June 18, 1875, by W. L. McKim, United States deputy surveyor, under instructions from J. A. Harderbaugh, United States Surveyor-general for California, dated April 16, 1874."

That said survey by McKim was located in township six north, range 11 east, Mount Diablo meridian, and connects it with the section corner common to sections five, six, seven, and eight of said township; while the pretended location of said Sanger and Davies fails to make any reference to the section, township, range, or meridian, and that the adoption of the field-notes of the Wildman quartz mine survey, approved by the United States Surveyor-general, as the basis of a subsequent location, is not authorized by local rules, customs of miners, or the acts of Congress relating to mines.

4. That the notice of location omits to name the mining district, county, or State within which their pretended claim

is located.

5. That there is no evidence to show that the field-notes of the official survey of the Wildman quartz mine, made June 18, 1875, under instructions from Surveyor-general Hardenbaugh, include, cover, or embrace any part of the ground claimed by Sanger and Davies, in this pretended notice of location.

6. That the notice of location fails to show connection with the government survey as required by section two thousand three hundred and twenty-seven of the Revised Statutes, although a section line divides it in two parts.

7. That it fails to show that the notice of the pretended location was posted on the lode claim, or within the boundaries of the surveys admitted to be included within said pretended location.

8. That the notice of location omits to recite the number of feet owned by Mr. Sanger, in the pretended location of

Sanger and Davies on said lode, and that the notice of location omits to designate the number of feet owned by Davies in said location.

That the location of the pretended claim of Sanger and Davies does not include fifteen hundred feet in length on the vein or lode. That the notice of location pretends to locate sixteen hundred and twenty-three chains along the vein or lode.

That the record of location does not claim or locate the ledge or lode through the length of the surface ground claimed in the pretended location of Sanger and Davies.

That locations in lode claims can only be made in feet. That the notice of location omits to name the pretended claim.

That the surface ground claimed in the pretended notice of location was on the thirtieth day of July, 1879, not subject to location as a mining claim, it having been applied for as a part of the town site of Sutter Creek, entered by the county judge as trustee, for the inhabitants of said town, on the first day of July, 1874, and patented January 20, 1875.

That said adverse claim is defective, in that they designated and named the pretended location the "Davies Quartz Mine," and it does not so appear in the certified copy of the record of location.

That the survey of J. W. Brown, filed with said protest, is defective in the following:

It was not authorized to be made by the United States Surveyor-general for California;

It is not sworn to by the said J. W. Brown;

It was a private survey made by J. W. Brown under the direction and by the request of said Sanger and Davies.

By the affidavits of said J.W. Brown it appears that said Sanger and Davies expended in labor and improvements on their pretended location about one hundred and twenty-five dollars.

That to entitle said Sanger and Davies to a survey of their pretended claim, or to the right to file a protest, they should have expended on their pretended location, in labor and improvements, a sum not less than five hundred dollars. Section 2326 of the Revised Statutes requires, where an

adverse claim is filed during the period of publication, it shall be upon 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 by a court of competent jurisdiction, or the adverse claim waived.

The adverse claim in question was presented under oath by William Sanger and David T. Davies.

Said affiants allege a failure by Wheeler and his grantors of labor or improvements required by law, and that said Wildman quartz mine was, therefore, subject to location by any other party.

Wherefore, on the thirtieth day of July, 1879, the said Sanger and Davies, citizens of the United States, entered upon, located, and claimed the said premises for the purpose of mining thereon, and designated and named the same the "Davies Quartz Mine," and occupied the same as a mining claim.

They submit with said adverse claim copy of their location notice, duly certified by the deputy clerk and recorder of Amador county.

Said location notice is dated Sutter Creek, California, July 30, 1879.

I regard this as correctly showing the nature of said adverse claim. The boundaries and extent thereof are indicated by field notes of survey, made by John W. Brown, deputy mineral surveyor, November 1, 1879.

The affidavit of the adverse claimants sets forth that said locators, at the time of said location, set stakes on the said lode and at the corners of the said claim, except on the corner in Main street and Eureka street, in the town of Sutter Creek, where it was impracticable to place stakes or monuments by reason of the constant public use of said street; and placed on the stake on the lode a written notice of location, describing the claim as located.

Said affidavit further alleges that said Davies lode and claim, and the said Wildman lode and claim, are one and the same piece of land, and are bounded by the same lines,

and the one includes and contains the whole of the other, and that said Sanger and Davis are the owners thereof.

I therefore conclude that the nature, boundaries, and extent of said adverse claim were duly alleged as required by law. It appears from affidavits submitted by Wheeler, that in March, 1879, Wheeler directed his agent, G. W. Bibbins, to employ men and resume work on the Wildman Mine; that said work was resumed in March, 1879, and more than thirty-six dollars and twenty-five cents expended in such labor; that work was then stopped, for the reason that to successfully work the mine it required machinery, and that active operations were postponed pending negotiations for such machinery, and that since the second day of October, 1879, work has been resumed on the mine by men in the employment of Mr. Wheeler, and that they are now in quiet and peaceable possession of said property.

While it would appear in the absence of any denial of facts so alleged, that the pretended location of Sanger and Davies was illegal, and while their action in adopting as their description of such location the field-notes of the survey made by the applicants for patent in 1875 was anomalous and without precedent, yet under existing laws I feel compelled to recognize said adverse claim.

Its nature, boundaries, and extent having been shown, I regard it as one which precludes executive action, until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived.

It has been forcibly urged by counsel for applicant before this office, that the question of abandonment by a prior owner is one which is within the jurisdiction of the Executive Department of the Government.

By section 2324, U. S. R. S., it is provided that the miners of each mining district may make regulations not in conflict with the laws of the United States, or with the laws of the State or Territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim, subject to the following requirements:

In the same section, it is provided as one of the requirements that not less than certain amounts named shall be annually expended upon lode claims. It follows that while