§ 673. Effect of application for patent-Segregates land applied for from public domain. An application for patent duly and regularly filed in the local land office is prima facie evidence of the appropriation of the land described in the application, so far, at least, as to prevent any other person from applying for the ground pending such application. For the time being, at least, it operates to remove the premises in question from the jurisdiction of local laws. But in order to have this effect the application must be followed by the publication and posting of notice.3 Where an application has been properly filed in the land office, but has never been prosecuted to final entry, such application must be disposed of before a subsequent application will be received for the same land.1 $ 674. Similarities of statute to Mexican law.-There are some, indeed many, of the proceedings in the matter of application for patent for mining claims which had almost their exact counterpart in some of the proceedings under the Mexican law; as, for instance, the requirement that the surveyor who went upon the ground in seeking to reg ister the mine should be a government officer. This is analogous to the requirement in our law that the survey shall be made by a deputy mineral surveyor. Under the Mexican law the surveyor marked the boundaries of the claim, and reported and recorded the peculiarities of the mount 1 Rose v. Richmond Mining Co., 17 Nev. 25, 27 Pac. Rep. 1105; Steel v. Gold Lead G. & S. M. Co., 18 Nev. 80, 1 Pac. Rep. 448; Gunnison Crystal M. Co., 1 C. L. O. 70; Great Eastern M. Co. v. Esmerelda M. Co., 2 L. D. 704; Hall v. Street, 3 L. D. 40; Rice v. Redding, 11 L. D. 213; Rocky Lode, 15 L. D. 571; Andrew J. Gibson, 21 L. D. 219. 2 Daney G. & S. M. Co. v. Sapphire S. M. Co., 2 C. L. O. 66. See also J. G. Sanders v. N. P. R. R. Co., Com'r to Helena Office, April 19, 1892, and Sept., 1893. 3 Snow Flake Lode, 4 L. D. 30. 4 Steel v. Gold Lead G. & S. M. Co., 18 Nev. 80, 1 Pac. Rep. 448; Rose v. Richmond M. Co., supra; Crown Point Lode, Sickels' Min. Dec. 116; Hurricane Lode, id. 243; Rebellion M. Co., 1 L. D. 543; Great Eastern M. Co. v. Esmerelda M. Co.. supra; Snow Flake Lode, supru; Moylan C. Fox, 2 L. D. 704. ain, which requirements have their counterpart in our law. Under the Mexican law the boundaries were also required to be marked with reference to permanent monuments; and the posting of the notice of registry, and proclaiming it from churches and public places, is also analogous to our requirement of publication in a newspaper and posting on the claim and in the land office.1 ARTICLE B. Of the Adverse Claim, Including Contents, Sufficiency and Time and Manner of Filing. § 675. Distinction between adverse claim and protest. 676. Nature and purpose of adverse claim. 677. Character of the land adverse proceedings. - When and to what extent involved in 678. Requirements and contents of adverse claim- Question for land department alone. 679. Time within which must be filed - Statute mandatory - Period cannot be extended, even by stipulation (note). 680. Who may adverse- Confined to conflicting surface. 681. Who must adverse - Any adverse claimant as to surface. 682. Who need not adverse-Town-site owners- - Known lode owner. 683. Same- The rule as to tunnel claimants- No need to adverse. 684. Effect of adverse claim. 685. Exception where conflict area excluded by amendment. § 675. Distinction between adverse claim and protest.There is a vast distinction between adverse claims and protests, though they are sometimes spoken of as synonymous, and at other times the terms "protest and adverse claim" are used as a phrase, as though both were necessary to express the nature of the proceeding. While the adverse claimant is a protestant, to the extent that he appears and protests, or objects to the issuance of a patent, the protestant need not be an adverse claimant. A mere protestant need not be an interested party, while an adverse claim may be maintained only by the owner of conflicting surface 2 Post, this chapter, art. C. 1 Rockw. Gamboa, pp. 242–253. ground. In this chapter we will discuss the question of adverse claim, and that of protest will be taken up later.2 § 676. Nature and purpose of adverse claim.— An adverse claim is in the nature of a proceeding in rem to determine the rights of the parties to the possession of certain portions of conflicting surface ground described, and to stay the further prosecution in the land office of the application for patent until its determination. The rights of the parties to conflicting surface ground are the only proper subject of adverse claim, possible future conflicts of subsurface rights being questions to be settled in a proper action when they arise. A correct disposition of the question, however, involves the further one, namely, which, if either of the parties, is entitled to a patent from the United States. As said in a late case in the federal court: "Frequently the party has the right to the possession and not to a patent. He is entitled to the possession as soon as he properly locates the claim, but not to patent until he shall have done the necessary work." $ 677. Character of the land - When and to what extent involved in adverse proceedings. Whether or not the land is mineral or non-mineral in character is not a proper question to be raised collaterally in adverse proceed 1 See post, § 680. 2 Post, art. C. 3 Hamilton v. Southern Nevada G. M. Co., 33 Fed. Rep. 362; Providence G. M. Co. v. Burke (Ariz.), 57 Pac. Rep. 641: Marshall S. M. Co. v. Kirtley, 12 Colo. 410, 21 Pac. Rep. 492; Wolfley v. Lebanon M. Co., 4 Colo. 112; Wight v. Dubois, 21 Fed. Rep. 693. 4 Champion M. Co. v. Cous. Wyoming G. M. Co., 75 Cal. 78, 16 Pac. Rep. 513; Providence G. M. Co. v. Burke, supra; Choller, Potosi and Bullion Lodes v. Julia Lode, Copp's Min. Lands, 93; Smuggler M. Co. v. 5 Champion M. Co. v. Cons. Wyoming G. M. Co., supra; Lee v. Stahl, 13 Colo. 174, 22 Pac. Rep. 436: notes 3 and 4, ante. 6 Rutter v. Shoshone M. Co., 75 Fed. Rep. 37; affirmed, 31 C. C. A. 223, 87 Fed. Rep. 801; Providence G. M. Co. v. Burke, supra. ings nor in any case solely between mineral claimants. It can only be raised in a direct proceeding brought for that specific purpose, and by a non-mineral claimant against a mineral claimant, or vice versa. In such case the land department may order a hearing, and the proceedings will then be suspended until the question is determined. This is exclusively within the jurisdiction of the land department, and in the determination of it the latter is unhampered by the decisions of the courts. It has, however, been raised collaterally in the land department. If, however, the adverse is by a non-mineral claimant against the mineral applicant, of course the character of the land becomes a material question and is properly raised in adverse proceedings. § 678. Requirements and contents of adverse claim Question for land department alone. Generally the adverse claim must state facts sufficient, if true, to entitle the adverse claimant to the ground in conflict. The statute requires that it shall be made upon the oath of the person filing it, and shall show the nature, boundaries and extent of such adverse claim. This must be set forth fully in the notice, which should also show whether the adverse party claims as purchaser or as locator. In the latter case, a certified copy of the original location notice or certificate should accompany the notice; in the former, he should, in addition to this, furnish an abstract of title duly certified. The ad 1 Alice Placer Lode, 4 L. D. 314; Devereaux v. Hunter, 11 L. D. 214; Powell v. Ferguson, 23 L. D. 173; Snyder v. Waller, 24 L. D. 11; Wallace v. State of California, 5 C. L. O. 22; Wood v. Seymour, 4 C. L. O. 178; A. D. Searle Placer, 9 C. L. O. 180. 2 Steele v. St. Louis Sm. & Ref. Co., 106 U. S. 447; Barden v. N. P. R. R. Co., 19 L. D. 188; Apple Blossom Placer v. Cora Lee Lode, 14 L. D. 641; Snyder v. Waller, supra; Overman S. M. Co. v. Maxwell, 10 C. L. O. 191. 3 Anderson v. Amador & Sacramento Canal, 10 L. D. 572. 4 Mono M. Co. v. Magnolia E. & W. Co., Sickels' Min. Dec., 198, 2 C. L. O. 68; Copp's Min. Lands, 146, 153. R. S. U. S., § 2326; Gen. L. O. Cir., June 24, 1899, pars. 80, 83. 6 Id. See also McFadden v. Mount verse claimant should also furnish a plat showing his entire claim, its relative situation or position with the one against which he claims, and the boundaries and extent of the conflict.1 This latter requirement may be dispensed with where both parties are claiming by legal subdivisions.2 3 The adverse claim must be sworn to by the applicant, where there is only one; by one for all where there are several, or by his or their agent or attorney who is familiar with the facts. The sufficiency of the adverse claim is solely one for the land department, and will not be interfered with by the courts. The department will be satisfied with it, whatever its form, if it shows clearly the existence of a substantial right; the controlling principle being that the department is only concerned in seeing that the law is complied with and that the patent finally passes to one entitled to it. § 679. Time within which must be filed Statute mandatory -Period cannot be extended even by stipulation (note). The adverse claim must be filed in the land office. where the application for patent is pending within sixty ain View M. & M. Co., 27 L. D. 358; Hallett & Hamburg Lodes, 27 L. D. 104; Anchor v. Howe, 50 Fed. Rep. 366; War Eagle Mine, Copp's Min. Lands, 113; Mountain Tiger, Zella and Rockwell Lodes, Copp's Min. Lands, 116: Robinson v. Mayger, 9 C. L. O. 5; Little Pauline Lode v. Leadville Lode, 7 L. D. 506; Hoffman v. Beecher, 12 Mont. 489, 31 Pac. Rep. 92; L. O. Cir., June 24, 1899, par. 83; Gwillim v. Donnellan, 115 U. S. 45. 1 L. O. Cir., supra, par. 84; Reno v. Old Kentucky G. M. Co., Com'r to Durango Office, Jan. 20, 1896; Bates v. Chambers, 1 C. L. O. 98; Jackson v. Tiger M. Co., Sickels' Min. Dec. 263; War Eagle Mine, supra. Where an official survey is imprac ticable, the conflict area may be shown by an unofficial survey. Hoffman v. Beecher, supra; Philadelphia M. Co. v. Finley, 10 C. L. O. 340; Sec'y to Com'r McFarland, Copp's Min. Lands, 331; Jennie Lind M. Co. v. Eureka M. Co., Copp's Min. Lands, 124. Where no plat is furnished, a good excuse for its omission should be shown by affidavit. Sec'y to Com'r McFarland, supra. 2 Reg. Gen. L. O., supra, par. 84. 3R. S. U. S., § 2326; Gen. L. 0. Cir., supra, pars. 81, 82; Samuel McMaster, 2 L. D. 706; Hawley Cons. M. Co. v. Memnon M. Co., Sickels' Min. Dec. 235; Equator Lode, Copp's Min. Lands, 178; Jennie |