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may be found defective and the applicant is required to republish his notice.16

1 Rev. Stat. U. S., § 2326, ante, p. 19; 2 Landowner, 6.

2 4 Landowner, 34.

3 4 Landowner, 2.
4 4 Landowner, 34.
5 1 Landowner, 135.
62 Landowner, 5.
76 Landowner, 105.

8 Sickel's Min. Laws, 298.
9 3 Landowner, 2.

10 Copp's Min. Dec. 19.

11 1 Landowner, 162.

12 2 Landowner, 5.

13 2 Landowner, 2.
14 Copp's Min. Dec. 149.
15 Copp's Min. Dec. 232.

16 Sickel's Min. Laws, 313.

§ 128. Same-Effect of waiver by applicant.-When the applicant for a patent before the department becomes a defendant in a suit brought by an adverse claimant, waives his claim, confesses judgment, and thus acknowledges plaintiff's superior right to the disputed ground, the controversy is ended, and plaintiff should no longer be deprived of a patent for the premises to which he has shown himself legally entitled. But the mere filing of an abandonment of the disputed ground does not terminate the contest. The judgment of the court must go to all the questions involved in the controversy before patent can issue for the portion of the claim not in dispute.2

1 3 Landowner, 194.

2 3 Landowner, 196.

§ 129. Same-Waiver by adverse claimant.-The contest may be determined either before or after suit brought, by the express waiver of the adverse claim, by filing a written withdrawal in the local land office,1 or by

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stipulations filed in court, consenting to a dismissal of the action. In addition to this express waiver, the same result will be conclusively presumed against the rights of the adverse claimant by his failure to file his claim within the period of publication, whether from voluntary laches or from ignorance of the pending application; 3 by his failure to institute suit within thirty days of filing his adverse claim; 4 by his failure to prosecute the suit with reasonable diligence.5 But the question as to whether reasonable diligence has been used in prosecuting the case is for the court. It has been decided, that by the adverse claimant failing to notify the local land officers of the commencement of the suit, he waived the adverse claim. But it has since been held by the commissioner, that although compliance with this regulation is desirable as a matter of convenience to the department, a failure to give such notice cannot deprive a party of his right under the law to be heard, and the burden of proof rests with the applicant to show that suit has not been commenced. But where complaint was filed in the State of Colorado, where the code required the issue of summons within thirty days, in order to give the case any standing in court, it was held that the mere filing of the complaint, without the issue of summons, as required by the state statute, was not the commencement of an action. The dismissal of the suit operates so conclusively upon the adverse claimant that the proceedings for a patent cannot be again stayed by commencing the action de novo after the lapse of the statutory period.10 So, where the suit has been dismissed for want of prosecution, the patent proceedings cannot be again suspended by reinstating the case in court. But where one of -everal co-owners made out a prima facie adverse show

to an application for patent, and his co-tenants sub

sequently withdrew this adverse claim, their withdrawal could not prejudice the rights of the adverse claimant.12

1 1 Landowner, 66.

2 2 Landowner, 68.

3 4 Landowner, 2.

4 Copp's Min. Dec. 145; 2 Landowner, 6.

5 3 Landowner, 98; 6 id. 75.

6 Sickels' Min. Laws, 288.

7 2 Landowner, 82.

8 Sickels' Min. Laws, 238.

9 Sickels' Min. Laws, 291.

10 1 Landowner, 66.

11 Copp's Min. Dec. 23; Sickels' Min. Laws, 299. 12 Copp's Min. Dec. 158.

§ 130. Conflicts not considered as adverse claims.— The right which the law gives to the owner of a lode claim to follow the dip of his vein under adjoining lands is not the subject of an adverse claim by an adjoining proprietor. The patentee of a claim need not file an adverse claim to an application for patent for a cross lode, 'or other conflicting claim. The ground already patented will be excepted from the subsequent patent.2 Opposition by lienholders is equally unnecessary, as their rights are fully protected.3 So also are easements protected in such a manner as not to be affected by the issue of a patent, and consequently the owner of an easement cannot maintain an adverse claim so as to bring about a suspension of patent proceedings.4 Mere hypothetical controversies, which may and ought to be adjusted in the courts, will furnish no grounds for suspending the disposal of the public lands, pending their adjustment. The conflict of interest must be real and substantial.5 Where application is for a lode located prior to May 10, 1872, patent excepts all lodes but the one applied for, and an adverse claim by subsequent locator for surface

ground will not lie. A public highway is not an adverse claim.7

1 Copp's Min. Dec. 101; 6 Landowner, 73; Sickels' Min. Laws, 252-4-60.

2 2 Landowner, 114, 115.

3 Act Cong. July 9, 1870, ante, p. 21; Copp's Min. Dec. 45.

4 Act Cong. July 26, 1866, § 5, ante, pp. 23–24; Copp's Min. Dec. 42; Sickels' Min. Law, 245.

5 Copp's Min. Dec. 96; 4 Landowner, 3.

6 Sickels' Min. Laws, 194.

7 Copp's Min. Dec. 43; Sickels' Min. Laws, 245.

§ 131. Protests-Which do not assert title in protestant, or otherwise comply with laws in relation to adverse claims, should always be received by the local land officers and forwarded as part of the record, without exacting fees. Protestant is merely amicus curiæ, and has no right of appeal.1

1 Sickels' Min. Law, 313-14.

§ 132. Appeals.-A written statement of the points of exception to the commissioner's decision is required on appeal to the Secretary of the Interior. No new or additional evidence can be submitted to the secretary on appeal.2 An appeal brings up all proceedings had prior to the order appealed from, and all exceptions must be presented at the hearing of such appeal, or in default, they will be considered waived.3 A protestant standing in the relation of amicus curia has no right of appeal.4 An appeal of an adverse case, to the Supreme Court of the United States should not further stay patent proceedings.5 The rule that the ordering of hearings is within the discretion of the commissioner, from whose decision no appeal lies, only applies to rehearings.6

days are allowed for filing notice of appeal after of notice of decision. Service of notice on atys resident in Washington is sufficient. If notice

is not served within the time, the case will be closed, and the decision of the commissioner become final. After service of notice the appellant has thirty days additional for filing points of exception and argument. The local land officers have no authority to extend the time for appeal. This can only be done by the commissioner. A paper addressed to the local land officers, notifying them that an appeal was taken from their decision in a particular case, to the commissioner, would not operate as an appeal from the commissioner to the Secretary of the Interior; but, being defective, the appellant should be notified, and upon failure to amend, the appeal should be dismissed, and the case closed.8

1 Copp's Min. Dec. 217. 2 Copp's Min. Dec. 136.

3 Copp's Min. Dec. 181.

4 3 Landowner, 194; 4 id. 3, 34; 6 id. 3.

5 2 Landowner, 5.

6 6 Landowner, 4.

7 6 Landowner, 124.

8 Sickels' Min. Laws, 509.

§ 133. Easements.-In case a mine is surrounded by other property, and it is necessary to have ingress and egress secured, no specific condition will be inserted in the patent, but the provisions of Section 2338, Revised Statutes of the United States, relative to easements, drainage, etc., will be inserted.1

1 5 Landowner, 146.

§ 134. Town sites.-No title can be acquired to any known mineral lands or valid mining claim under a town site patent. An application for patent for a town site is no objection to the issuing of a patent for a lode claim embraced within the limits of the town site application.2 But the surface rights of owners of town property will be protected by proper exceptions in the patent for the

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