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that has been done thereon, whether there has been any opposition to his possession, or litigation with regard to his claim, and, if so, when the same ceased, whether such cessation was caused by compromise or by judicial decree, and any additional facts within the claimant's knowledge having a direct bearing upon his possession and bona fides which he may desire to submit in support of his claim." 56

He must also file certificates from the courts having jurisdiction of mining cases in his judicial district to the effect that no litigation is pending, or during the limitation period has been pending, affecting the title to the claim, or any part thereof, other than such litigation as has finally been decided in favor of the claimant.57 He must further support his narrative of facts relative to his possession, occupancy, and improvements by corroborative testimony of disinterested persons.58 Filing the Application.

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The application papers having been prepared as above, they are forwarded, with the filing fee, to the local land office. They consist of the application for patent; a copy of the final plat; the approved field notes; the proof of posting the notice of application and the copy of the final plat on the claim, the proof being attached to a copy of the notice; a copy of the notice of application for patent, to be posted in the land office; the proof of applicant's citizenship; the publisher's agreement; a copy of the notice of application for patent, to be given the application number and returned by the register to be published in the newspaper designated by him; and a certified copy of the location certificate, to serve for a few days until the abstract of title can be brought down to include the date of the filing of the application in the land office,†† and be sent to the land office."

56 Land Office Regulations, rule 75. 57 Land Office Regulations, rule 76.

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58 Land Office Regulations, rule 77. While the statute and the rule do not dispense with the annual labor requirement, they do dispense with the need of record evidence of location and with the need of explaining the absence of such evidence. Capital No. 5 Placer Mining Claim, 34 Land Dec. Dep. Int. 462.

59 If the wrong local land office is resorted to, steps taken there are absolutely ineffective, as that office has no jurisdiction. FREDERICK A. WILLIAMS, 17 Land Dec. Dep. Int. 282. Where land sought to be patented lies in two land districts, entry will be allowed only for the land in the district where the patent proceedings are taken. ALASKA PLACER CLAIM, 34 Land Dec. Dep. Int. 40. In such case an application for patent should be made in each district.

†† A new system of numbering went into effect July 1, 1908. Methods of keeping Records and Accounts Relating to the Public Lands, 37 Land Dec. Dep. Int. 45-60.

60 While one application for patent is pending, another for the same ground,

Jurisdictional Matters.

By the federal statute it is made the duty of the register, upon the filing of the foregoing first set of papers, to "publish a notice that such application has been made, for the period of sixty days, in a newspaper to be by him designated as published nearest to such claim; and he shall also post such notice in his office for the same period." 1 These two notices and the one posted on the claim constitute together that notice to the world which the land department regards as essential to its jurisdiction, and if any one of these notices is insufficient they are all rendered valueless.2 The application for patent prevents any other application for patent for the ground affected while the application is pending, except that a successful adverse claimant may patent the conflict area awarded to him by the court. The patent proceeding is in the nature of a proceeding in rem and is binding upon all the world.** The publication of the notice of application for patent must be, as we have seen, for 60 days. That means 61 consecutive insertions in a daily newspaper and 9 in a weekly. Within the 60 days' publication,

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or part thereof, will not be received. STEMMONS v. HESS, 32 Land Dec. Dep. Int. 220. But where the applicant negligently delays making entry, and an adverse relocation is made, the department will cancel the application. CLEVELAND v. EUREKA NO. 1 GOLD MINING & MILLING CO., 31 Land Dec. Dep. Int. 69.

61 Rev. St. U. S. § 2325 (U. S. Comp. St. 1901, p. 1429).

62 GROSS v. HUGHES, 29 Land Dec. Dep. Int. 467. Southern Cross Gold Min. Co. v. Sexton, 31 Land Dec. Dep. Int. 415. If the notice posted in the land office is interrupted by the closing of the office for purposes of the removal of the office, the time to file adverse is simply extended the number of days the office is closed. Tilden v. Intervener Mining Co., 1 Land Dec. Dep. Int. 584.

63 Land Office Regulations, rule 44. See note 60, supra.

64 HAMILTON v. SOUTHERN NEV. GOLD & SILVER MIN. CO. (C. C.) 33 Fed. 562. "The proceedings before the land department are judicial, or quasi judicial, at least. The publication is process. It brings all adverse claimants into court, and, failing to assert their claims, they stand, at the expiration of the notice, in default. True, no adverse claimant or supposed claimant may be named in the notice, and no process may be served personally upon him; but that does not avoid the notice, or weaken its sufficiency to bring such party into court. This is not the only case known to the law in which parties not named in a notice are by it brought into court and their rights adjudicated. Unknown heirs are often thus brought in by a published notice. Tax proceedings, condemnations of rights of way, admiralty cases, and many others present familiar illustrations." Brewer, J., in WIGHT v. DUBOIS (C. C.) 21 Fed. 693-695. See Kannaugh v. Quartette Min. Co., 16 Colo. 341, 27 Pac. 245; Healey v. Rupp, 37 Colo. 25, 86 Pac. 1015.

65 Land Office Regulations, rule 45.

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all adverse claims must be filed, or they are barred." That means that they must be filed within the 60 days, computed by excluding the first day of publication of the notice merely. The time for filing adverse cannot be extended, though protest may be made at any time prior to the issuance of patent. Both adverse claims and protests, and their effect on patent proceedings, are considered in the next chapter; but here it will be assumed that none is filed.

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SAME THE FINAL SET OF APPLICATION PAPERS.

990. The second and final set of papers filed by the applicant for patent in an uncontested application includes: (14) Proof by affidavit that the plat and notice of application remained conspicuously posted during the publication period; (15) proof by the publisher's affidavit that the notice was duly published; (16) proof by affidavit of the items of the application expenses; and (17) the application to purchase the land, accompanied by the purchase money.

SAME-ENTRY AND PATENT.

99d. Upon the filing of the final application papers the register and receiver of the local land office at once forward a copy of (17) supra to the chiefs of field division of special agents, and the register makes (18) his certificate that the notice of application and the plat remained posted in the land office during the publication period. Upon a favorable report from the chiefs of field division, the register makes (19) his certificate of entry. The receiver of the local land office thereupon issues (20) his duplicate receiver's receipts.

The complete record is then forwarded to the Commissioner of the General Land Office, and, if everything is regular, (21) a patent issues in due course.

The publication period being complete, and no adverse or protest being filed, the second set of application papers is made up. If too great

66 The adverse claimant, who has not filed an adverse claim, can attack the patent only for reasons which a court of equity might allow to be urged against a judgment at law. Golden Reward Min. Co. v. Buxton Min. Co. (C. C.) 79 Fed. 868.

67 Bonesell v. McNider, 13 Land Dec. Dep. Int. 286; Waterhouse v. Scott, 13 Land Dec. Dep. Int. 718.

68 DAVIDSON v. ELIZA GOLD MINING CO., 28 Land Dec. Dep. Int. 224; Gross v. Hughes, 29 Land Dec. Dep. Int. 467. No adverse claim being filed, it will conclusively be presumed that none exists. Lily Min. Co. v. Kellogg, 27 Utah, 111, 74 Pac. 518; Rev. St. U. S. § 2325 (U. S. Comp. St. 1901, p. 1429).

69 Land Office Regulations, rule 53.

delay takes place in filing them, entry will be refused.70 This set consists of the affidavit of the claimant that the plat and the notice posted on the claim remained conspicuously posted thereon during the 60 days of publication, the affidavit giving the dates; 71 the publisher's sworn statement that the notice was published for the statutory period, the statement giving the first and last days of such publication; 72 the claimant's sworn statement of all charges and fees paid by him for publication and surveys, and of all fees and money paid the register and receiver of the land office; and the application to purchase, describing the claim and excluded areas, and accompanied by the purchase money, which in lode claims is $5 for each acre or fractional part of an

acre.

Entry.

These papers being received, the register at once forwards a copy of the application to purchase to the chiefs of field division of special agents. He then satisfies himself that the law has been complied with, and makes his certificate that the plat and the notice of application were posted and remained posted conspicuously in the land office during the period of publication. If the chiefs of field division of special agents report favorably, the register then makes his final certificate of entry in favor of the applicant. The receiver thereupon issues his duplicate receipts for the purchase money, filing the original with the papers and sending the duplicate to the claimant, and the claim is thereupon regularly entered. The duplicate receiver's receipt must be given back before the patent is delivered, and it is customary to record it at once. The proceedings after entry being merely ministerial, the receiver's receipt in most cases is the equivalent of patent.73

After entry, or before entry if the chiefs of field division of special

70 Copper Bullion and Morning Star Lode Mining Claims, 35 Land Dec. Dep. Int. 27, where entry was denied even after the withdrawal of protest. because more than two years elapsed between end of publication period and attempt by applicant to complete proceedings.

71 Land Office Regulations, rule 51. Personal observations at various times and such information as a reasonably cautious man would accept are sufficient knowledge to justify the affidavit. Bright v. Elkhorn Mining Co., 9 Land Dec. Dep. Int. 503.

72 Land Office Regulations, rule 51.

73 Aurora Hill Con. Min. Co. v. Eighty-Five Mining Co. (C. C.) 34 Fed. 515. Its possession is evidence of the claimant's good faith, where that is material. Valcalda v. Silver Peak Mines, 86 Fed. 90, 29 C. C. A. 591. It gives a vested right to a patent, which right can be divested only on proper notice. REBECCA GOLD MIN. CO. v. BRYANT, 31 Colo. 119, 71 Pac. 1110, 102 Am. St. Rep. 17. The receiver's receipt is so far the equivalent of patent that it has been held that a vendee of a mining claim for which a receiver's receipt has been issued to the vendor cannot refuse the

agents report unfavorably, the complete record is forwarded by the local land officers to the Commissioner of the General Land Office, who may have a special agent go upon the land and report, and if everything is regular a patent issues in due course. If irregularities are discovered, the applicant is given notice to correct them. Occasionally the receiver's receipt is recalled and the entry canceled. This may be done any time before patent issues, after notice to the applicant and opportunity to him to be heard.75 Matters adjudicated by the final entry are as conclusive from collateral attack as though patent had issued.70 Names Inserted in Patent.

Where an applicant conveys away his interest after application, the land department refuses to consider the transfer and issues patent in the name of the applicant, on the theory that the title inures to the transferee." If, however, the land department has knowledge of a transferee's or mortgagee's conveyance from an entryman, however that knowledge is acquired, the transferee or mortgagee is entitled to notice of any action by the government looking to a cancellation of the entry and if the notice is not given the entry will be reinstated.78

Where an applicant dies before entry, the land office, on proof of that fact, will issue the receiver's receipt to "the heirs of" the applicant, or correct it if issued in the name of the applicant." Where he dies after entry, he is regarded as having title, and the patent issues in his name. After the entry the government holds the legal title in trust for the entryman,80 and that equitable interest of the entryman passes to his heir.

vendor's deed merely because the vendor has not received his patent. Bash v. Cascade Min. Co., 29 Wash. 50, 69 Pac. 402, 70 Pac. 487.

74 Orchard v. Alexander, 157 U. S. 372, 15 Sup. Ct. 635, 39 L. Ed. 737. 75 REBECCA GOLD MIN. CO. v. BRYANT, 31 Colo. 119, 71 Pac. 1110, 102 Am. St. Rep. 17; Mineral Farm Min. Co. v. Barrick, 33 Colo. 410, 80 Pac. 1055.

76 BROWN V. GURNEY, 201 U. S. 184, 26 Sup. Ct. 509, 50 L. Ed. 717. 77 Land Office Regulations, rule 71; Liddia Lode Mining Claim, 33 Land Dec. Dep. Int. 127. See Slothower v. Hunter, 15 Wyo. 189, 88 Pac. 36. 78 ROMANCE LODE MINING CLAIM, 31 Land Dec. Dep. Int. 51. 79 TRIPP v. DUMPHY, 28 Land Dec. Dep. Int. 14.

80 Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. 95, 29 L. Ed. 423; Hamilton v. Southern Nev. Gold & Silver Min. Co. (C. C.) 33 Fed. 562. An entry and certificate of purchase, while outstanding, are equivalent to patent. Aurora Hill Con. Min. Co. v. Eighty-Five Mining Co. (O. C.) 34 Fed. 515.

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