pendicular, and at a depth of one thousand feet the claimants. would still measure from such perpendicular one thousand feet in one direction and two thousand in the other, as the extent of their respective claims, at the bottom of the cavity made by extracting the ore. If, then, we suppose such cavity to have been already made, and that, by a convulsion of nature, the vein should be swung from a vertical position to that of an angle at which it now dips, the cavity would then, in its last position, represent such a one as these contestants are now authorized to make, by extracting the ore from their respective portions to that depth, and the lines of such cavity would represent the lines they are now entitled to follow, either under the mining customs or the act of Congress.

If either party is guilty of trespass on the rights of the other, the courts are open to them for redress, either before or after the issuing of a patent, and such rights are neither abridged nor enlarged by the patent.

The Pittsburg Company's application having been so long suspended, on account of the filing of an opposing claim having in fact none of the incidents of an adverse claim, under the sixth section of the mining act, will be carried into patent without further delay.

You will notify both parties of this decision.

Very respectfully,

Jos. S. WILSON, Commissioner.

No. 3. 1. When first suit is dismissed, a second suit, commenced after the expiration of thirty days, will not operate as a bar to entry.

2. The adverse claim, under such circumstances, treated as a simple protest.

3. Protestant not entitled to the right of appeal.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., October 2, 1879. SIR: Referring to your letter of August twentieth last, transmitting the papers in the case of the Boston Hydraulic Gold Mining Company v. The Eagle Copper and Silver Mining Company, from the Stockton, California, Land District, I have to state that an examination of the judgment roll in the suit commenced July 12, 1877, in the District Court for the Eleventh Judicial District of California, and removed to the United States Circuit Court August 22, 1877,

shows that said suit was, on motion of the plaintiff's attorney, dismissed January 7, 1879. Thus the suit provided for in section 2326 of the Revised Statutes, during the pending of which proceedings in your office were stayed, was terminated, and it then became your duty to proceed in the case in the manner determined by you in your decision of July 7, 1879.

Suit commenced after thirty days.

The suit commenced by plaintiff March 3, 1879, after an expiration of thirty days from the period of publication, can not be recognized by this department as a bar to the proceeding to obtain a patent by the defendant, The Eagle Copper and Silver Mining Company. (Morse v. Streeter et al., Copp's Min. Dec., p. 127; O. D. Lombard, Copp's Land Owner, vol. 3, p. 194; Schoellkopf et al., Id., vol. 4, p. 34.)

Treated as protest—Not entitled to appeal.

I am in receipt of an appeal from your decision of July 7, 1879, dated at Boston, Mass., on the fifteenth ultimo, and signed by the Boston Hydraulic Gold Mining Company, by A. K. P. Joy, attorney. In view of the fact that this company has not complied with the requirements of the mining statute, in commencing a suit which can be recognized as a bar to an application for patent, it can not be considered by this department as in the position of an adverse claimant, but as a protestant only; hence, it is not entitled to an appeal, and said appeal can not be recognized. (See the cases above cited, and also that of the Boston Quicksilver Mine, Copp's Land Owner, vol. 4, p. 34.)*

Mr. Joy was in error in assuming that he was entitled to sixty days, from the receipt of notice of your decision, in which to appeal to this department. Your action in transmitting the case was in accordance with existing instructions. The papers in the case are herewith returned, and you will proceed in the usual manner with the application. Very respectfully,

A. BELL, Acting Secretary. To the Commissioner of the General Land Office.

* See Secretary's decision of September 27, 1877, in Sprucemont case.

No. 4. 1. A location made by the "Miners' Relief and Territorial Poor Fund," being neither a person nor an association of persons, is unauthorized and void ab initio.

2. No valid right by purchase can be acquired under such a location. DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, D. C., June 7, 1871.

Register and Receiver, Central City, Colorado.

GENTLEMEN: With your letter of date the twenty-fourth of March last, were received the papers and your report in the matter of an application of William A. Hamill, for a patent for certain mining premises, called the Gunboat lode, situate in Clear Creek county, Colorado Territory.

*

* * On the eleventh of August, 1870, Robert O. Old, agent and superintendent of the Colorado Terrible Lode Mining Company, filed in your office his sworn statement, protesting against the survey and entry of said premises claimed by Hamill," for the reason that said premises are not the property of said William A. Hamill, and the said applicant is not entitled to hold the same under and by the local laws of said Griffith mining district, nor the laws of Colorado Territory; and because the said premises, or some portion thereof, are claimed adversely by the Colorado Terrible Lode Mining Company; and said premises, as described in said diagram, can not be entered without interfering with certain property owned by it, and described as follows: The west seven hundred feet of the Terrible lode, to wit: the west half of property for which United States patent issued to Fred. A. Clark and Henry Crow, on the eleventh day of December, 1869, and therefore make this adverse claim."

On the nineteenth day of November, 1870, the said claimant, William A. Hamill, relinquished "from said application for patent all claim for patent to said east seven hundred (700) feet of said Gunboat lode, under the above application, hereby expressly declaring my intention not to relinquish any rights I may have to the east seven hundred feet of said lode, under the provisions of the local laws." With reference to that portion of the affidavit of the agent of the Colorado Terrible Lode Mining Company, which alleges that the application of Hamill for pat

* * *

ent for the westerly seven hundred feet of the Gunboat lode, "commences on, covers, and is identical with a part of the seven hundred feet of the Terrible lode, which was patented to Frederick A. Clark and Henry Crow, and by them deeded to said company," it is proper to state that an examination of the plat of the final survey, showing the relative positions of these claims, fails to substantiate this alleged interference further than to show that post No. 6, at the north-east corner of the Gunboat survey, is a few feet inside the westerly limits of the surface ground patented with said Terrible lode; but inasmuch as no patent will issue on this survey of the Gunboat lode without a special clause excepting from the conveyance any portion of the fourteen hundred feet of the Terrible lode and surface ground patented therewith, it is not perceived that this portion of said company's objections is entitled to further consideration.

The company's further objection appears to be, in effect, that Hamill's said application and survey covers one hundred feet of mining ground adjoining and immediately beyond the westerly end line of the said patented Terrible lode.

Their alleged possessory title to this disputed one hundred feet of ground appears to have originated in a location thereof, made and recorded on the thirteenth day of December, 1866, as Claim No. 1, West, on the Terrible lode, in the name of the "Miners' Relief and Territorial Poor Fund," which was sold on the twelfth of July, 1869, by the County Treasurer to Fred A. Clark and Henry Crow, who, on the eleventh of April, 1870, conveyed the same to said company.

Void location.

But on the thirteenth day of December, 1866, the date of this location, the Congressional Mining Law had been in force some months, and under it there was no authority for such location as this, inasmuch as the "Miners' Relief and Territorial Poor Fund" was neither a person nor an association of persons; was without legal existence, and powerless and incapacitated to "occupy and improve" a claim, or perform those acts of ownership or possession required of miners, as conditions essential to the holding of claims,

or of proceeding to make payment to the government and obtain patent.

This office, therefore, declines to give further consideration to the right of said company to oppose said application, ruling that the said location was void ab initio, and that they acquired nothing by their purchase thereof from Clark and Crow as aforesaid, those parties having no interest therein whatever to convey.

It likewise appears from the papers that the said "Colorado Terrible Lode Mining Company" is a corporation created and existing under the laws of England, and is therefore not a citizen of the United States, and not capable of asserting a claim to any portion of the public land of the United States, or of receiving from the government a title therefor in any event.

No. 5. 1. Adverse claim not recognized because not sworn to before an officer authorized to administer oaths in the land district in which the claim is located. Treated as a protest.

2. A publication in a weekly newspaper for nine weeks is not a publication for sixty days. There must be ten insertions.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., April 30, 1874. SIR: I have considered the appeal of John H. McMurdy et al., adverse claimants, from your decision of October 29, 1873, in the matter of the application of Eli S. Streeter and Thomas McCunniff for patent to six hundred linear feet of the Bell Wether lode, Central City land district, Colorado. Adverse claim dismissed.

You dismissed the adverse claim of McMurdy et al., on the ground that the protest filed was not sworn to before an officer authorized to administer oaths in the land district where the claim is situated, following herein the rule laid down in the recent case of the Dardanelles Mining Company v. The California Silver Mining Company, decided by the department October 28, 1873. Your decision is to this extent correct, and is hereby affirmed.

It is asserted, however, upon appeal, that the claimants have not complied with the requirements of the act of June