that it was, this fact has no application to the instance where the adverse claim does not arise until after the expiration of the 60-days' limitation, and the applicant for the patent has let his application lie dormant for a number of years without either paying the purchase money or doing the required work of $100 each year pending the application for patent. Enterprise Min. Co. v. Rico-Aspen Consol. Min. Co., 32 U.S. App., 75, 13 C. C. A., 390, and 66 Fed., 200, affirmed in 167 U. S., 108, 17 Sup. Ct., 762. The filing of the application for patent does not suspend the obligation to keep up the required work where, without paying the purchase money, the claimant permits his application to sleep for years, as in this case. And "upon such failure to comply with these conditions the claim or mine upon which the failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made." Black . Mining Co., 163 U. S., 450, 16 Sup. Ct., 1101.

From the authorities stated the following propositions, bearing more or less directly upon the question here presented, may be regarded as settled law:

1. When the right to a patent to a mining claim has been fully acquired the equitable title in the purchaser is complete and there is no obligation on his part to make further expenditure in labor or improvements on the claim under section 2324 of the Revised Statutes, and no interests can thereafter be acquired by relocation or otherwise as against him;

2. The annual expenditure of one hundred dollars in labor or improvements on a mining claim, required by section 2324 of the Revised Statutes, is solely a matter between rival or adverse claimants to the same mineral land, and goes only to the right of possession, the determination of which is committed exclusively to the courts. It is a matter with which the land department has nothing to do, and hence, can make no determination with respect to it; and

3. That the failure of an applicant for patent to a mining claim to prosecute his application to completion, by filing the necessary proofs and making payment for the land, within a reasonable time after the expiration of the period of publication of notice of the application, or after the termination of adverse proceedings in the courts, constitutes a waiver by the applicant of all rights obtained by the earlier proceedings upon the application.

In this case the application for patent was filed in April, 1896. During the period of the publication the Baby Dora adverse claim was filed, and, within due time, suit was instituted thereon, the proceedings in which were not terminated until March 24, 1897. Prior to that date the Opie protest had been filed. That protest was not finally dismissed until October 14, 1899, and before that date the present protest, of June 4, 1899, was filed.

Section 2326 of the Revised Statutes, among other things, provides that

Where an adverse claim is filed during the period of publication, it shall be upon oath of the person 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 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.

There is nothing to indicate that the Baby Dora adverse claim did not in all respects conform to the requirements of the statute. As a result of the filing of that adverse and the timely institution of suit thereon, all further proceedings upon the application for patent, with the exception stated as to the publication of the notice and the filing of proof thereof, were, according to the terms of the statute, stayed until March 24, 1897, when the adverse suit was dismissed and the adverse claim thereby waived. This stay of proceedings was absolute, made so by the statute. During its continuance the applicant company could do nothing further towards the completion of the patent proceedings except to cause the publication to be completed and the affidavit thereof to be made and filed. The effect of the stay was to absolutely prevent the making of entry until the controversy should be settled or decided by a court of competent jurisdiction or the adverse claim should be waived. If the company had offered to make entry the offer would have been rejected. If it had made tender of the purchase price of the land the tender would have been refused.

Practically the same condition has existed, in so far at least as the applicant's right to complete its patent proceedings is concerned, ever since the adverse suit in the court was dismissed. The Opie protest which had been filed and was then pending, presented some matters properly cognizable by the land department, and until those matters were inquired into and determined, it would, according to departmental practice in such instances, have been improper to have allowed entry on the application. Before that protest was determined the present one was filed, the effect of which was, and still is, to prevent entry being made. It thus appears that at no time since the expiration of the period of publication of notice of the application for patent, have the conditions been such that the applicant company could have paid for the land and made entry of its claim.

In full view of all this, the present protestants contend, in effect, that because of their assertion of a relocation of the claim for their own benefit, on account of the alleged failure of the applicant company to make an expenditure of one hundred dollars in labor or improvements during the year 1898, entry and patent for the claim can not be allowed upon the pending application, and that said company should be required to commence patent proceedings anew so as to afford the protestants an opportunity to file an adverse claim, based upon said alleged relocation. In other words, the contention is that the applicant company, notwithstanding no opportunity has as yet been afforded it to make payment and entry for the claim applied for, must nevertheless be held to have waived or forfeited all rights under its applica24368 Vol. 30—14

tion for patent, and the proceedings had thereon, because of the alleged omission in the matter of annual expenditure for the year 1898, and the relocation of the claim on account thereof.

The position assumed by the protestants is not believed to be a tenable one. Certain it is that the applicant here can not be charged with failure to prosecute its application to completion within a reasonable time after the expiration of the period of publication of notice thereof, as was done in the cases of Cain et al. . Addenda Mining Company, P. Wolenberg et al., Barklage et al. v. Russell, and Gillis . Downey, hereinbefore referred to. In each of those cases the application for patent, without occasion therefor, was suffered to lie dor mant for a number of years, with no effort on the part of the applicant to carry the same to completion. In this case, upon the filing of the Baby Dora adverse claim, further proceedings with the view to carrying the application for patent to completion, were stayed by statutory mandate. Nor can it be said here, as was done in the case of Reins ?. Montana Copper Company, supra, that the applicant for patent failed to complete, within a reasonable time, the proceedings necessary to obtain patent after the judgment of the court in the adverse suit was rendered. The proceedings had on the protests since the termination of that suit, have, according to departmental practice, been equally effective to prevent the completion of the application for patent, as was the adverse suit prior to its dismissal. In each of the cited cases, failure by the applicant to seasonably press his application to completion was apparent, and during the existence of that failure other rights were claimed to have intervened. No such failure exists in this case, and there is no room for the application of the doctrine of laches. The law does not impute laches to a party because he has not done, nor offered to do, something which, even though he had made the offer, he would not have been allowed to do.

Again, section 2326 of the Revised Statutes, after providing that a party who has filed an adverse claim during the period of publication tion, shall within thirty days thereafter

commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment

further declares as follows:

After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without giving further notice, file a certified copy of the judgment roll with the register of the land office, together with the certificate of the surveyor-general that the requisite amount of labor has been expended or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment roll shall be certified by the register to the Commissioner of the General Land-Office, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the court, to rightly possess.

It is to be observed that under the statute, the party who succeeds in the court may, without giving further notice, file with the proper officer a copy of the judgment roll, accompanied by the necessary evidence of description, and of the amount of labor expended or improvements made as required in other cases, and obtain patent for the land which he has been adjudged to rightly possess, upon making payment therefor, together with the proper fees.

It matters not that the adverse suit may have been pending in the courts for years. The successful party is nevertheless entitled to his patent under the statute, upon filing a copy of the judgment roll and complying with the conditions stated, without giving further notice. From this it would seem necessarily to follow that an applicant for patent who has been adversed in the courts, is not obliged, after the commencement of the adverse proceedings, to keep up the annual expenditure under section 2324, in order to prevent the relocation and probable loss of his claim during the pendency of such proceedings. If this were not the intention of the law how could patent be obtained in such a case after the termination of the adverse proceedings, upon filing the required proofs and making the necessary payments, without giving further notice? If it had been intended that the question of annual expenditure during the pendency of adverse proceedings in the courts should be inquired into subsequently to the terminations of such proceedings, however prompt the applicant for patent may have been in endeavoring to carry his application to completion after the court's judgment in his favor, specific provision would doubtless have been made as to the manner of conducting the inquiry. The statute contains no such provision, and the positive declaration that the party entitled to the possession under the court's judgment may obtain his patent, upon compliance with the conditions stated, without giving further notice, strongly negatives the idea that any such inquiry was within the contemplation of the law makers.

If an applicant for patent, who has been adversed under the statute, is required to keep up the annual expenditure under section 2324 during the continuance of the adverse proceedings in the courts, it must be for the reason that without such annual expenditure the claim is liable to relocation and consequent forfeiture. There could be no other reason. In every case, therefore, where the litigation over the adverse claim continues for a period of time within which failure to make the annual expenditure might occur, and a relocation of the claim on account thereof might be made, although the adverse proceedings should ultimately be determined in the applicant's favor, there would have to be another notice and opportunity for an adverse suit in a court of competent jurisdiction to settle or determine the possessory right to the claim between the applicant for patent and any such relocator thereof, for the reason that it is not within the

province of the land department to determine possessory rights or questions involving the annual expenditure required for the maintenance thereof. It is plainly to be seen that if such were the law, the same proceedings might be repeated again and again under the same application for patent, and thus be the means of indefinitely delaying, if not entirely defeating, all applications against which adverse claims are filed. Such a construction would reduce the statute to an absurdity and should be rejected for that reason, if for no other.

Assuming that the applicant company, up to the date of the filing of the Baby Dora adverse claim, and subsequently to the time of the expiration of the period of publication, had done everything that under the law could be done, toward establishing its right to make payment for and receive patent to the land embraced in the claim. applied for and nothing to the contrary is shown-it must be conceded that all the equities are in favor of the company as against the contention of the protestants. It was through no fault or neglect of the applicant, but on account of the false clamor of an adverse claimant and of the protestants, Opie et al. and Crumby, that the required payment was not and could not have been made after the expiration of the period of publication and prior hereto. Every consideration of equity, therefore, seems to demand that the compulsory delay occasioned by the proceedings on the adverse claim, and on the protest of Opie et al., should not operate to the applicant's prejudice. The view which accords with sound reason, as well as with the principles of equity and justice, clearly is that the proceedings necessary to the completion of the right to a patent, if taken at the first opportunity afforded therefor under the law and departmental practice, with respect to matters like that here under consideration, should be held to be as effective as if taken at the date when, but for the filing of the adverse claim and protest, the proceedings on the application could have been completed.

Nor is there any reason why the foregoing considerations, except the discussion of the provisions of the statute relating to the issuance of patent upon the judgment roll after the termination of adverse proceedings in the courts, should not apply with equal force to the delay caused by the filing of the Opie protest and the proceedings had thereon, during which time the claimed relocation by the present protestants was made. It was no more the fault of the applicant company that it was prevented from completing its patent proceedings in the one case, than it was in the other. There is no room for the imputation of laches in the one case, any more than in the other. It is equally clear that the absurd results suggested as a probable consequence of the construction contended for, if applied to delays caused by the pendency of adverse proceedings in the courts, would be just as likely to follow such a construction, if applied to delays caused by