papers in the matter of the Steel Spring lode mining claim application and also the papers in the matter of the adverse claim above mentioned. The application for patent for the Steel Spring lode mining claim, as appears from indorsement thereon, was filed in your office on the 11th of March, 1881. The applicants named therein are J. N. Stephens, R. S. Street, S. H. Rutherford, and A. F. Chandler, and said application alleges that said claim was located on the 21st of December, 1880. As appears also from a certified copy from the record of the location certificate said Stephens, Street, Rutherford, and Chandler located and claimed 1,500 linear feet on the Steel Spring lode on the 21st of December, 1880. This certificate is dated January 3, 1881, and appears to have been recorded on the 4th of January, 1881.

The proof of publication shows that the notice of application for patent was published in the Daily Chronicle at Leadville, from the 11th of March, 1881, to the 10th of May, 1881.

The protest and adverse claim of said Adam Ovens, John McComb, Thomas Ovens and others, against said application for patent, as appears from register's indorsement on said adverse claim, was filed in your office on the 9th of May, 1881, before the expiration of the sixty days of publication. Said adverse claim is sworn to by Adam Ovens only, and sets forth that it is made on behalf of himself and his "coowners, John McComb, Thomas Ovens, Daniel O'Donnell, and Barney McMahon, citizens of the United States."

Attached to said adverse claim and protest is a certified copy from the record of location certificate dated April 22, 1881, showing a loca tion by parties named in said adverse claim on the 21st day of April, 1881, of 1,500 linear feet on the Parnell lode. This certificate appears to have been filed for record on the 27th of April, 1881. Said adverse claimants have also filed a plat, and attached thereto a certificate of Jesse F. McDonald, United States deputy mineral surveyor, showing the "conflict claimed to exist between the Steel Spring lode survey, No. 1461, and the Parnell lode, as actually surveyed" by said McDonald, who also certifies "that the value of the labor and improvements on the Parnell lode made by the adverse claimant or his grantors is not less. than $500."

Adverse claimants inter alia allege that the surface ground and veins and lodes contained therein, as set forth and described in the plat and field notes of said J. N. Stephens and his co-claimants, or a great portion thereof, are not the property of the said Stephens and his co-claimants, "neither are they entitled to hold the same under or by virtue of the local laws, rules, and customs of miners in the California mining district, the laws of the State of Colorado or the laws of the United States;" that a portion of the premises described in said plat and the notice of said Stephens et al., and claimed by them as the Steel Spring lode, "is claimed adversely and is owned by" protestant and his co. owners as the Parnell lode or deposit, "and is in fact a portion of the

mining claim and premises claimed and owned by" said protestants as the Parnell lode; that protestant and his co owners are the owners by location and discovery of, and are in the possession of the Parnell lode

Said adverse claimants then allege specifically, "that on the first day of April, A. D. 1881, John McCombe, Thomas Ovens, Daniel O'Donnell, Barney McMahon, and this protestant, each and all of them being citi zens of the United States, entered upon and explored the premises discovered and located the said lode or deposit as a mining claim," etc., and then allege that locators and their grantees have in all respects complied with every custom, rule, regulation, and requirement of the mining laws, and thereby became, and are, the owners of said lode, except as against the United States and the rightful possessors of said mining claim and premises, etc.

J. N. Stephens et al., in their said motion of August 4, 1881, which is now under consideration, ask a dismissal of said adverse claim of said. Ovens et al., made against said application for patent, upon the following ground, viz, "because said pretended Parnell mining claim was located after said application for said patent was" made; and in support of said motion reference is made to certain decisions of this office which, it is claimed, "show that said location of said McComb and others is void, so far as it conflicts with or includes any part of said Steel Spring lode mining claim."

Upon examination, I do not think that the, decisions referred to are applicable to the state of facts existing in the case under consideration. Section 2326, Rev. Stat., provides that—

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

Said section further declares that

It shall be the duty of the adverse claimant, within thirty days after filing his claim, to 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, and a failure so to do shall be a waiver of his adverse claim.

With the papers in the case you also sent up the certificate dated the 31st of May, 1881, of the clerk of the district court of the fifth judicial district of the State of Colorado, in and for the county of Lake. As appears by said certificate, Barney McMahon, John McComb, Thomas Ovens, Daniel O'Donnell, and Adam Ovens did on the 31st day of May, 1881, institute in said court their action in support of their adverse claim as owners of the Parnell lode or mining claim against R. S. Street, S. H. Rutherford, A. F. Chandler, and J. N. Stephens, "defendants, as

claimants and applicants for a patent for the Steel Spring lode " mining claim.

The adverse claim of Adam Ovens et al. was filed upon oath and shows the "nature" of the claim to be by location, and alleges that the locators and their grantees have in all respects complied with the law. The "extent" and "boundaries" of the claim are also shown. In these respects adverse claimants appear to have complied with the requirements of the law. Although they allege a location on the 1st of April, 1881, they also allege that the surface ground and veins and lodes therein contained, as set forth and described in the plat and field-notes of said J. N. Stephens and co-claimants, or a great portion thereof, are not the property of said Stephens and his co-claimants, and that they are not entitled to hold the same under or by virtue of the local laws or the laws of the United States, and that a portion of the premises described in said plat and notice of said Stephens et al. is claimed and owned by protestants as the Parnell lode, etc. It thus appears that adverse claimants filed their claim under oath during the period of publication, showing the origin of their title as well as the nature, boundaries, and extent of their claim, and that they also, "within thirty days after filing" their said claim, instituted an action in the district court of the fifth judicial district of the State of Colorado, in support of their said adverse claim. It is not shown that said suit has been settled or decided by the court, nor is it shown that said adverse claim has been waived.

The only question that can arise upon this state of facts is whether the adverse claimants have complied with the terms of the statute above mentioned, so as to bring their case within it. In my opinion, the adverse claimants in this case have shown such a compliance.

I am asked, however, in the motion under consideration, to dismiss said adverse claim "because said pretended Parnell mining claim was located after" the application for patent was made. This objection goes directly to the merits of the case, and not to the form in which the claim is presented. Whether said adverse claimants will be able, in court, to show a better right to land in dispute, this office can not undertake to decide; nor, referring to adverse claimants' location of April, 1881, can I undertake to say that adverse claimants have selected or will select this location as the only ground upon which to rest their claim to the land in dispute, these being matters over which I have no jurisdiction. It is my duty, however, under the law, to determine whether the adverse claim is made out in due form, or properly alleged, and this I have done. Beyond the ascertainment of this fact it is not necessary for me to go, nor is it necessary in the discharge of my duty under the statute to enter upon a discussion as to what may or may not be the final action of the court upon the adverse claim presented.

As far as relates to the land in dispute, the ex parte showing made by applicants, in support of their application, has been brought in ques

tion by the allegations, likewise under oath, made by adverse claimants. Thus, and in the manner pointed out by the statute, has been raised an issue or "controversy" between the contesting parties-applicants and adverse claimants-as to the land in dispute. Jurisdiction over the controversy is now either in this office or in the court in which the action in support of said adverse claim has already been instituted. In my opinion, and under the rulings of the Interior Department, this office has no jurisdiction over the matter further than above stated.

In the matter of the protest of the Bodie Tunnel and Mining Company vs. Tioga Consolidated Mining Company, and the Bechtel Consolidated Mining Company, the honorable Secretary of the Interior, in his decisions of the 12th of December last, held as follows:

From the view, therefore, which I take of the mining law, the only place in which controversies between conflicting mining claimants or adverse claimants can be heard is in a court of competent jurisdiction. This office, in considering the adverse claims filed against the application for patent to the Valentine gold quartz mine, in decision of 25th of April, 1879, held:

I am disinclined to usurp questionable jurisdiction. I have not the proof before me to enable me to render a well-advised decision as to the respective rights of the parties, were my jurisdiction unquestionable, and it is not incumbent on said adverse claimants to present such proof. It is their duty to properly allege their adverse claims. This has been done, and it is not my province to decide that Knight has not rights which can be successfully asserted in the courts.

And the adverse claim filed being in "due form" this office directed a stay of proceedings. (See Sickels' Mining Decisions, page 287.)

In the case of the "King of the West lode" in Utah, the honorable Secretary of the Interior, in his decision of December 26, 1876, held that the plain meaning of the law is that

All contests which may arise in the disposal of the mineral lands shall be tried and determined, if tried at all, in a court of competent jurisdiction; that the adjudication and determination of that court shall be final, and a patent for the tract in controversy shall issue to the successful party or parties, upon showing further compliance therewith. It is equally clear, I think, that when the court has acquired jurisdiction of the subject-matter in controversy all other proceedings, except those mentioned, must be stayed until such determination is made, if the suit be prosecuted with reasonable diligence.

Referring to the objections urged against the adverse claim filed in that case, the Department in said decision further held:

Both of these objections go to the merits of the case, and not to the form of the claim. It is unquestionably your duty, as well as mine, when an adverse claim is presented for consideration, to examine it, and determine whether the claimant has substantially set forth, under oath, its nature, boundaries, and extent; but if a compliance with the law is shown in these particulars, and a suit has been instituted to determine the rights of the parties, I am of the opinion that we can proceed no further with the investigation. It is the duty of the court in which the

suit is pending to determine all other questions relating to the controversy. (Sickels' Mining Decisions, p. 297.)

For reasons above stated I must decline to dismiss the adverse claim of Adam Ovens et al., and the said motion of J. N. Stephens et al., is hereby overruled.

Give due notice of this decision to all parties in interest.

PRIOR APPLICATION-CROSS-ADVERSE CLAIMS AND SUITS.

2. GREAT EASTERN MINING COMPANY v. ESMERALDA MINING COMPANY.

An application for patent is an appropriation of the ground embraced therein, and parties who have filed an adverse claim against an application cannot file an application for the same ground, or any part of it, while the controversy is pending.

Acting Secretary Joslyn to Commissioner McFarland, July 27, 1883.

SIR: I have examined the case of the Great Eastern Mining Company upon the Flora Bell Lode v. The Esmeralda Mining Company upon the Elkhorn and Fenian lodes, Deadwood, Dak., on appeal from your decision of July 11, 1882, holding that the application of the Esmeralda Company must be dismissed as to the area in conflict.

August 25, 1880, the Great Eastern Company filed application for patent to the Flora Bell lode. During the period of publication of notice the Esmeralda Company filed against said application two adverse claims for a portion of the ground so applied for by the Great Eastern Company, one of said adverse claims being for ground claimed under the name of the Elkhorn lode, and the other for ground claimed under the name of the Segregated Fenian lode. On each of said adverse claims suit was duly commenced within thirty days allowed for that purpose. February 25, 1881, the Esmeralda Company filed at the local office an application for the said Segregated Fenian lode, embracing, with other ground, a portion of the same ground previously applied for by the Great Eastern. And March 23 of the same year said Esmeralda Company filed an application for the Elkhorn lode, which also embraced, with other ground, a part of the ground applied for by said Great Eastern. At the time these applications of the Esmeralda were received at the local office the application of the Great Eastern and the two adverse claims made by the Esmeralda were all pending. During the period of publication of the Segregated Fenian and Elkhorn, the Great Eastern filed cross-adverse claims and duly commenced suits thereon. This statement of facts presents the question whether it was error for the register and receiver to entertain the applications of the Esmeralda Company of February 25 and March 23 for portions of the same ground applied for by the Great Eastern.