tion to the completion of her entry. time waives her pre emption right. cited.

That her marriage in the mean-
Porgeot (7 I. D., 280), and cases

I am not prepared to question the correctness of those decisions and this opinion is not to be construed as a license to single women who desire to avail themselves of the benefit of the pre-emption law to marry between the time of the inception of the entry and the time when it should be perfected. But these rules and decisions are not applicable to this case for the reason that here Mrs. Cunningham did not marry until after she had perfected her right to enter nor until after she should have been permitted in law to have done so. Before her marriage she gave notice of her intention to make final proof and after due publication thereof appeared at the local office with her witnesses for that purpose; desired to perfect her entry, pay for the land, and receive certificate therefor.

The affidavit of Geo. L. Fisher, offered in support of the claim of Mrs. Cunningham shows that he was clerk in the local office at the time.

As he very well remembers, her final proof was rejected solely on account of some defect in the original declaratory statement, and that she was advised by both the register and receiver, that she could remedy the defect by making out a new declaratory statement, and re-advertising once and making another final proof and that the fact of her marriage would not invalidate her final proof, for the reason that she had offered to make proof and virtually did make proof before she married.

Equity should treat all this as having been done when she was prevented from so doing by the advice of the local office, where no adverse claim intervenes and the government alone is making the inquiry for the purpose of determining the bona fides of the claimant.

Here are strong equities and I am inclined to think that her land should be passed to patent upon the proof she virtually made at that time. I am quite sure the case ought to go to the Board for its consideration.

In the case of Lydia Steele (1 L. D., 460), the Department held, that the pre-emption entry of a married woman, when all necessary acts, including publication of intention to make proof, had been performed prior to marriage, should be submitted to the Board of Equitable Adjudication. Without discussing the correctness of the rule in that case, it is sufficient to say that the case now under consideration presents stronger grounds for refusing the cancellation of this entry, and consid ering that the entry in this case should have been allowed when the claimant first offered to make proof, I direct that it be submitted to the Board of Equitable Adjudication.

MINING CLAIM-ADVERSE PROCEEDINGS.

NORTHWESTERN LODE AND MILL SITE COMPANY.

When it appears from protest, filed during the period of publication, that an adverse proceeding is pending in the courts, the local office should suspend action pending the final disposition of such proceeding, although it may have been instituted prior to the application for patent.

The pendency of an adverse proceeding, instituted to determine the right of possession, at the time when application for patent is made, renders it unnecessary for the adverse claimant to commence another action after filing protest.

On final determination of judicial proceedings patent may issue to the applicant for such portion of the claim as he shall appear from the decision of the court to rightly possess, if a vein or lode has been discovered therein.

First Assistant Secretary Chandler to Commissioner Stockslager, April 25, 1889.

I have considered the case of Northwestern Lode and Mill Site Company on appeal of Wm. M. Beardsly, owner of said claim from your office decision of July 3, 1888, holding for cancellation part of the entry of said Beardsly for the lode claim above named in Central City land district, Colorado.

It appears from the record that Beardsly filed application for patent September 30, 1885, and after said application was made and during the sixty days publication of notice Geo. M. Reardon as attorney in fact for Frank S. Reardon and Alexander Campbell filed a protest against the issuance of patent and asking that all proceedings be suspended on account of the pendency in the supreme court of Colorado of a suit involving the possessory right of a portion of the said Northwestern Lode, of which the said Frank S. Reardon and Alexander Campbell claimed to be the owners, the said portion being known as the Stanislaus Lode.

With the protest is the affidavit of the said George W. Reardon, alleg. ing substantially that the Stanislaus Lode was located by Alexander and John Campbell August 25, 1881, and they held undisputed possession for nearly two years. That on March 21, 1883, John Campbell sold his half interest in said lode to Geo. W. and C. W. Reardon, and that a few days thereafter Wm. Beardsly and others took possession of said Stanislaus Lode and called it the Northwestern, and their alleged lo cation covers all of said Stanislaus Lode as located by said Campbells, except one hundred and fifty feet of the northeast end thereof, the lines being identical for 1350 feet in length thereof. That the right of possession of said claim was then in litigation before a State court of competent jurisdiction.

It further appears that some months prior to the application of Beardsly for patent, an action to determine the right of possession for so much of said Northwestern Lode claim as was in conflict with the Stanislaus, had been commenced in the county court of the proper county, and judgment being in favor of the owners of the Stanislaus Lode, appeal

was taken to the district court, upon the trial of which judgment was again rendered for the owners of the Stanislaus Lode. On April 9, 1885, the owners of the Northwestern Lode appealed the case to the supreme court of Colorado and that appeal was still pending when application was made for patent, notice published, and the protest of the Stanislaus claimants filed with the local officers.

It further appears that on May 14, 186, said appeal was dismissed by the supreme court of Colorado because of the failure of the appellants to prosecute the same, and the cause was remanded to the district court of "Boulder county" for such further proceedings according to law as shall be necessary to the final execution of the judgment of the said district court.

On this record you held that the entryman is not entitled to patent for so much of said entry as the court had decided entryman not to be entitled to the possession of.

In this decision I concur.

While the proceedings in court were not initiated under section 2326 of the Revised Statutes, there was pending at the time application was made to enter the Northwestern Lode, an action before the same tribunal and for the same purpose as the action contemplated in said section, therefore it was not necessary for the adverse claimant to commence another action within thirty days after filing his affidavit and the local officers should have suspended the proceedings in accordance with the spirit of said section pending the decision of the court.

The method pointed out in the said section is not necessary to give the State court jurisdiction, and if the original locaters preferred to commence action at once without waiting until the other party made application for a patent they had a right to do so. When a court had acquired jurisdiction of the subject matter in controversy, all proceedings before the local office should be stayed until the court has determined the matter. Owens, et al, v. Stephens, et al (2 L. D., 699); Miner v. Mariott, et al (2 L. D., 709).

Said section 2326, recognizes that patent shall issue only to the party entitled to possession of the claim and for only such portion of the claim as "the applicant shall appear from the decision of the court, to rightly possess."

In the absence of a clear showing of a possessory right an application for pat ent must be denied. Montana Mining Company (6 L. D., 261).

A patent may issue for such portion of the claim as the party applying for patent may rightfully possess. Gustavus Hagland (1 L. D., 593).

Under the evidence the Northwestern Company should have patent for one hundred and fifty feet of the north-east end of the lode claim ; upon a showing as required in said letter, that "a vein or lode has been discovered within that portion of the claim."

Your said decision is accordingly affirmed.

MINING CLAIM-PROTESTANT-APPEAL.

DOTSON ET AL. v. ARNOLD.

A protestant who sets up no claim, either present or prospective, that is recognized under the law, is not entitled to the right of appeal.

Secretary Noble to Commissioner Stockslager, April 28, 1889.

Oliver Dotson et al., filed a protest against the issuance of patent to James Arnold on mining entry No. 115, made July 27, 1882, for Placer Mining Claim No. 17, above discovery on Whitewood creek, in Whitewood mining district, Lawrence county, Dakota, alleging that the land covered by this claim was non-mineral in character; that the entry was made for the purpose of obtaining possession of the improvements thereon and that the claimant had not expended or caused to be expended the required amount in labor or improvements.

Your office held that the points raised by the first and second allegations had been decided by the decision of this department, of December 19, 1881, in the matter of the Townsite of Deadwood, (8 C. L. O., 153) and ordered a hearing to determine the truth of the third allega. tion.

The hearing was duly had before the local officers, who decided in favor of the mineral claimant. This decision was affirmed by your office October 19, 1887, and the protestants filed an appeal from the decision.

The attorney for the claimant filed a motion to dismiss said appeal upon the ground that these parties being protestants had no such interest as entitled them to the right of appeal. Your office transmitted all the papers in the case by letter of December 22, 1887.

The protestants here do not make any claim to the land under the mineral laws but state that all the land embraced by said mineral claim "is embraced in streets, blocks, lots and alleys of the said city of Deadwood as surveyed and platted and occupied and used continuously since the mouth of August or September, 1876" each of the protestants baving claimed, occupied and improved some part of said land as thus laid out into city lots at the time of the location of said mineral claim, and that the persons owning the improvements upon these various lots have paid large prices for the said premises in addition to the amounts expended for the improvements upon the same and "that this property has been continuously treated, used and occupied and sold and transferred by various occupants as town lots and town property from the year 1876, until the present time."

The question presented by the motion to dismiss the appeal is-Have these protestants in view of the fact that the decision above cited held that the land involved was mineral land and that title thereto could not be acquired under the townsite laws such an interest as would entitle them to appeal from the decision of your office? I think this ques

tion must be answered in the negative. They have no claim to this land recognized by the laws nor is it shown that they have any prospective claim thereto, such as would under the rule laid down in the case of Bright et al., v. The Elkhorn Mining Company (8 L. D., 122) decided January 23, 1889, where the rights of protestants in this class of cases are quite fully discussed, give them the right of appeal. Said motion is allowed and the appeal is dismissed.

PRACTICE-CONFLICTING MINERAL AND AGRICULTURAL CLAIMS.

CRESWELL MINING Co. v. JOHNSON.

Concurring decisions of the local officers and General Land Office on questions of fact will not be disturbed by the Department unless clearly against the weight of evidence.

In a contest between a mineral and agricultural claimant for land returned as agricultural it rests with the former to show as a present fact that the character of the land is such as to warrant the conclusion that mineral can be obtained therefrom, in such quantity and value as to make the land more valuable for mining than agriculture.

In such a case where a portion of the land is shown to be mineral in character, and a segregation survey is ordered, it will be at the expense of the mineral claim

ant.

Secretary Vilas to Commissioner Stockslager, January 3, 1889.

This is a motion for review of departmental decision of October 3, 1887, filed by John Johnson, the homestead claimant, upon alleged grounds of error in said decision both of law and fact, which are set forth specifically in said motion.

The questions in issue, are (1), the character of the land in the N. SE., and N. SW., Sec. 28, T. 4 S., R. 71 W., Central City, Colorado (that is whether mineral or non-mineral), for which final certificate on homestead entry has issued; and (2), whether said land was known to be mineral by the homestead claimant when final certificate was issued.

Johnson made settlement upon said tract November 3, 1880, and filed declaratory statement on the same day, and on August 2, 1883, transmuted said filing to a homestead entry upon which final proof was made November 7, 1885, and final certificate issued.

On March 18, 1886, a protest was filed by the Creswell Mining Company against the allowance of said entry, alleging the existence of valuable mineral bearing veins or lodes on said land, and that said company had located several claims thereon.

Upon the filing of said protest a hearing was ordered to determine the character of the land, and upon the evidence submitted at said hearing the register and receiver held, that said lands were mineral in character.