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the payment of the purchase-money, the applicant's title becomes complete, and when the patent issues, it relates to the date of entry.1

LAND OFFICE DECISIONS.

When a decision is rendered by which a claim erroneously entered is reduced in size, the purchase-money will be returned to the extent necessary to make the payment meet the requirement of the law. Copp, 76 (1870).

The affidavit of continuous posting of plat and notice on the claim must be made by one of the parties owning the mine at the date of entry at the local office. Kempton Mine, Copp, 154 (1875).

Objections that the publication of notice was not made for ninety days (act of 1866), and that the proof of posting notice and diagram did not show when, where, or for what periods the same were posted, are too late when they come after patent issued. They will not, therefore, be considered upon an application for proceedings to set aside the patent. Prince of Wales, Copp, 167 (1875).

On application for proceedings to annul a patent, proof of publication which states that notice was published for a period of ninety days, commencing April 15, 1871, is prima facie sufficient; that notice and diagram were posted five days after publication was commenced is an irregularity only, and not fatal. Wandering Boy, Copp, 169 (1875).

An affidavit that deponent had often been upon the land and did not see notice, can have no weight against a positive affidavit that the notice was posted during the entire period of publication. Olathe Placer, Copp, 287 (1880).

Where a party applies for a patent, and duly posts and publishes a notice, but fails for a long period to pay the purchase-money and make entry at the Land Office, and in the meantime the land is relocated under the provisions of Rev. Stats. 2324, there is nothing to prevent the relocator from making entry thereof except the filing of an adverse claim. If the first locator fails to do this, the second application will be allowed to proceed as though no prior application had been made. Seaton M. Co. v. Davis, Copp, 296 (1880).

Due compliance with the law and regulations appearing, except in the matter of furnishing proper proof of posting, and there being no reason to question the good faith of the applicant, the entry may be referred to the Board of Equitable Adjudication after new advertisement, posting, and proof thereof. Connell Lode, 6 L. D. 717

(1888).

It is the duty of the register to furnish proof of posting in the local office, and in the absence of such proof the applicant may be permitted to furnish satisfactory evidence as to the fact of posting. Mimbres M. Co., 8 L. D. 457 (1889).

It is too late to raise a technical objection to the affidavit of posting, after action on said affidavit and the allowance of the entry.

1 On this subject see Div. III., this chapter.

The affidavit of posting may be properly made by a claimant whose knowledge of the fact is derived from personal observation at various times of the plat and notice as posted, and from such information with respect thereto as would be accepted by a reasonably cautious man. Bright v. Elkhorn M. Co., 9 L. D. 503 (1889).

The value of testimony as to compliance with the law in the matter of posting is not diminished by the fact that the witness was occasionally absent from the mine. The Department never has required, and it would be most unreasonable for it to require, proof that the notice and plat remained posted each hour of each day of twenty-four hours during the prescribed period of sixty days. Tangerman v. Aurora Hill M. Co., 9 L. D. 538 (1889).

The publication of an application for a patent in a weekly paper requires ten insertions, but where the proof shows that such publication was made under a former practice that recognized nine insertions as sufficient, the entry may be, in the absence of an adverse claim, referred to the Board of Equitable Adjudication for its action. Oro Placer Claim, 11 L. D. 457 (1890).

E. Affidavits and Proofs.

All the affidavits required in proceedings for obtaining a patent must be made before the register and receiver, or an officer authorized to administer oaths within the land district where the claims are situated, except that non-resident applicants may make proof of citizenship by oath or affidavit before the clerk of any court of record or any notary public. Where the applicant is a non-resident, proofs may be made by an authorized agent.3

LAND OFFICE DECISIONS.

Under Rev. Stats. 2335, an officer authorized to administer oaths within the land district may administer the same outside of the district, if within his jurisdiction. Corning Tunnel v. Slide Lode, Copp, 208 (1877).

Where there is no adverse claim or protest to an application for a patent, no parties being interested except the applicant and the government, the applicant will be allowed to substitute proper affidavits for defective ones. Copp, 266 (1880).

The affidavits required of an applicant for mineral patent cannot be executed by an agent or attorney if the applicant is a resident of, and, at the date of the application, within, the land district where the claim is situated. This rule has no exceptions. Rico Lode, 8 L. D. 223 (1889).

1 Rev. Stats. 2335.

2 Act April 26, 1882, sec. 2.

8 Act Jan. 22, 1880, sec. 1.

F. Action by the Land Office and Issue of Patent.

The papers being all in, they are transmitted by the register to the General Land Office, together with a certificate that the notice was duly posted in the office. L. O. Regs., par. 43.

The entire series of papers is reviewed in the General Land Office. In this examination the Commissioner is not confined to the papers in the case, but may go outside of them, and, if necessary, order a hearing. In the absence of defects, the patent is issued in due course. If fatal defects are discovered, the entry is cancelled; if curable defects are discovered, the applicant is given an opportunity to remedy them. A cancellation places the applicant in the position he occupied before application, in no way affecting his possessory title.

Where the entry embraces land already patented, or covered by a prior pending application, it will be held for cancellation as to the extent of the conflict, and a patent issued for the balance. In practice, at present, all conflicts are marked on the survey, but the exclusion is not made until the papers are passed on at Washington. The previous practice required the exclusion before application, the Land Department refusing consideration to applications conflicting with prior applications; but this is no longer followed.

The patent should contain only terms of conveyance, with recitals showing a compliance with the law and the conditions which it prescribes. There is no authority in the Land Department to insert exceptions or reservations, by which the grantee's estate is abridged or restricted in any other way than it would be without such expression in the patent. It is, however, customary to except ground which conflicts with previous patents.

The patent will issue to the applicant, unless the evidence shows that his title has vested in some one else pending the proceedings, or that he is acting in a fiduciary capacity, in which event it will issue to the grantee, heir, devisee, or cestui que trust, as the case may be.

Where patent has issued, it is out of the control of the Department, and cannot be recalled; but if it contain an error, it may be surrendered and cancelled, and a new patent issued.

United States.

Deffeback v. Hawke, 115, 392 (1885). "The land officers, who are merely agents of the law, had no authority to insert in the patent any other terms than those of conveyance, with recitals showing a compliance with the law and the conditions which it prescribed."

Consequently a demand by one claiming title under a town site. grant, that a patent for the same ground as mineral land should contain a reservation excluding from its operation all buildings and improvements not belonging to the patentee, and all rights necessary or proper to the possession and enjoyment of the same, was properly disregarded by the Land Department.

Talbot v. King, 6, 76 (1886). "There was no law Montana. authorizing the Land Department to except the surface ground from the conveyance, or in any other manner to abridge the title of the purchaser; and in so doing it exceeded its authority, and its act to that extent is void and of no effect upon the property conveyed." "A valid location is equivalent to a contract of purchase. The right to occupy and purchase means the right to acquire a ful. title. The mineral lands are declared open to occupation and purchase, and the patent is the evidence of the title so acquired. The location has therefore the effect of a grant from the government to the locator, and this grant cannot be defeated or abridged by an unauthorized exception contained in the patent, for the patent must always be in accordance with, and the consummation of the grant evidenced by, a valid location."

LAND OFFICE DECISIONS.

Where, pending application for a patent, the claim is sold at sheriff's sale, the patent will be issued and delivered to the purchaser or his grantee, if proper evidence of title is given. Washington Lode, Copp, 85 (1872).

It is contrary to the fixed policy of the Department to recall a patent once issued, unless it is shown that an error has been committed in the description of the tract or in the name of the patentee. Copp, 87 (1872).

Where an applicant for patent sells his claim pending application, the patent will be issued to the grantee. If sold before entry, the register's certificate and receipt should be in the grantee's name, and patent will issue accordingly. If after entry, an assignment by endorsement upon the duplicate receipts should be made by the applicant to his grantee, to whom the patent will then issue. Copp, 97 (1873).

The examination of an application for patent under the mining laws should proceed beyond the papers filed in the case, and into those general records of the General Land Office which evidence the final disposition made of the public domain; and if it is found that any part of the premises applied for has been previously disposed of, an express exception thereof should be inserted in the subsequent patent. Seven Thirty Lode, Copp, 137 (1874).

It is error to include in a patent, ground which was neither included in the final survey nor in the original application and published

notice. In such case proceedings will be commenced in the name of the United States to set aside the patent. Prince of Wales, Wandering Boy, Copp, 163 (1875).

Where the claim has been erroneously described in a patent, a new patent will be issued upon the return to the General Land Office of the patent, and a relinquishment to the United States by the patentee and his grantees of the premises therein described, with a certificate of the recorder of the record of such relinquishment. Copp, 175 (1875). A foreign corporation purchasing a patent issued to citizens of the United States, takes all the rights and is entitled to all the privileges that would have accrued to the original patentees had they retained their interest in the mine. Copp, 177 (1875).

A conflicting survey already patented cannot, as an adverse claim, delay an application for a patent. The ground in conflict will be excepted from the subsequent patent. Equator Lode, Copp, 178 (1875).

Where an application for patent is signed by the executor of a deceased locator, there should be filed a certified copy of the letters testamentary with a copy of the will attached, and where the executor is one of several, evidence that one could legally pass title by deed. Copp, 190 (1876).

A patent will not issue including a placer and lode claim when said claims are not contiguous, and the lode is entirely without the placer location. Copp, 236 (1879).

A second application for land already applied for should not be received by the local officers. Such an application having been filed after the first was rejected by the Commissioner, but before the expiration of the period for appeal, it was dismissed, although the secretary, on appeal, affirmed the Commissioner's ruling. Chavanne Q. Mine, Copp, 286 (1880).

The cancellation of a mineral entry for non-compliance with antecedent statutory requirements does not affect the possessory rights of the applicant. These rights remain the same as if no entry had been made. In such a case the applicant is entitled to the return of fees provided for by the act of June 16, 1880, chap. 244. 1 L. D. 527 (1881).

Where entry is made upon a false survey and publication, the proceedings will be cancelled, and the applicant allowed to commence anew, and proceed by a proper publication upon a correct survey. Gustavus Hagland, 1 L. D. 593 (1882).

It is not necessary that mineral be discovered in the discovery shaft, if it is discovered within the limit of the claim before adverse rights attach. After entry, where there is no fraud, and in a question between the government and applicants only, if it becomes necessary, in order to support the entry, to find that the applicants had mineral in their discovery shaft, it will be so found in all cases where the evidence is conflicting. Wright v. Tabor, 2 L. D. 738 (1884).

A patent upon an application made by the administrator of a deceased owner should issue to the heirs of such deceased owner. Henry Wood, 2 L. D. 762 (1884).

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