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registers and receivers; but when parties are brought before the register and receiver, such costs shall be collected and provision required for such further notification as may become necessary in the usual progress of the case to final decision. When the hearing is ordered on the application of a party, a deposit of a sufficient sum should be required before notice of hearing is issued.12

1 2 Landowner, 98.

2 2 Landowner, 146.
3 Copp's Min. Dec. 143.
4 Copp's Min. Dec. 94.
5 Copp's Min. Dec. 150.

6 2 Landowner, 180.
75 Landowner, 179.
85 Landowner, 18.
9 Copp's Min. Dec. 17.
10 Sickels' Min. Laws, 355.
11 Sickels' Min. Laws, 501.
12 Sickels' Min. Laws, 505.

§ 120. Same-Burden of proof.-Where land excluded from survey and sale was subsequently returned by the surveyor-general as mineral land, the burden of proof is upon the agricultural claimant. It is always upon the party who denies the correctness of the surveyor-general's return. And where land returned as agricultural has subsequently been withdrawn as mineral, the burden of proof is shifted to the agricultural claimant.2 Where the land has been returned as agricultural, and as such entered and payment made, and is subsequently alleged to be mineral, the burden of proof is on the mineral claimant.3 The situation of the land in a well-known mineral region throws the burden of proof on the agricultural claimant.4

1 3 Landowner, 130; Sickels' Min. Law, 349.

2 4 Landowner, 19; 6 id. 91.

Copp's Min. Dec. 77; 6 Landowner, 91.
Sickel's Min. Laws, 355.

§ 121. Cross lodes.-Where two veins intersect or cross each other, priority of title governs and entitles the prior locator to all the ore at the point of intersection, without regard to which claim was first patented. The second location has the right of way through the space of intersection.1

1 2 Landowner, 178; 3 id. 66.

§ 122. Adverse claims.-The questions decided by the Department of the Interior, in contests between rival claimants of the possessory title to mining claims on the public domain when patent is applied for, are matters of form. The merits of each case must be decided by the courts.1 There must be filed a separate and distinct claim against each application alleged to conflict with the rights of the adverse claimant, as it is contrary to the letter and spirit of the law to allow one protest against several applications for distinct parcels.2 Any member of a mining company having authority may file an adverse claim on behalf of his company.3 When an adverse claim has been filed, it cannot be amended so as to embrace a larger part of the tract in dispute than that embraced in the original claim, nor can the papers be withdrawn.5 An adverse claimant desiring to withdraw his opposition to an application, should file a written statement to that effect with the local land officers;6 or the same result may be accomplished by the dismissal of the suit instituted in support of the adverse claim.7

1 3 Landowner, 162; 6 id. 34; Sickel's Min. Laws, 270.

2 Copp's Min. Dec. 202.

3 Copp's Min. Dec. 19.

4 Copp's Min. Dec. 156; Sickel's Min. Laws, 208.

5 1 Landowner, 51.

6 1 Landowner, 66.

7 2 Landowner, 68; 1 id. 66.

§ 123. Same-Facts necessary to be shown.-The facts upon which the adverse claim is based should be set

will not suffice that a portion of the applicant's survey is colored and claimed as the entire claim of the adverse party.3 The survey should be made and certified by a United States deputy mineral surveyor, together with his certificate or sworn statement as to the approximate value of the labor performed or improvements made upon the adverse party's claim.4 But where the adverse claimant is prevented by the applicant from making survey and plat, he will be excused from filing the same with his adverse claim.5 Where the adverse survey

shows a conflict, the local land officer cannot infer that the survey of the adverse claim is erroneous, and so decide without a hearing.6

1 Copp's Min. Dec. 232.

2 Copp's Min. Dec. 173.

3 1 Landowner, 98; Sickels' Min. Laws, 263-5-75.

4 Copp's Min. Dec. 337.

5 Sickels' Min. Law, 227.

6 Sickels' Min. Law, 267.

§ 126. Same-Affidavit-Fees.-Ordinarily the adverse claim must be verified by the oath of the party himself; but where several parties in interest unite, the affidavit of one is sufficient. Also, where the adverse claim is filed on behalf of a corporation, the protest may be verified by the oath of its president or other executive officer, or by an agent or attorney, whose authority must be shown.2 The adverse claim must be verified before some officer authorized to administer oaths within the land district where the claim may be situated.3 The fees should accompany the adverse claim, otherwise the officers of the local land office have no authority to receive and file it.4 No fees, however, should be exacted for refiling an adverse claim when it is rendered necessary on account of the republication of notice to correct errors or missions. Nor is there any authority for demanding

fees on the filing of a protest by one who stands to the court in the relation of amicus curiæ, though this relation may be the result of filing the adverse claim after the expiration of the period of publication.5

1 Copp's Min. Dec. 169; Sickel's Min. Laws, 231.

2 1 Landowner, 132; 2 id. 178.

3 1 Landowner, 34; Copp's Min. Dec. 158, 160. 4 3 Landowner, 36, 163.

5 Sickel's Min. Laws, 313.

§ 127. Same-Proceedings in court in support of.In order to continue the stay of proceedings on the application, an action should be commenced by the adverse claimant in a court of competent jurisdiction to try the possessory title. The law requires this to be done within thirty days after filing the adverse claim.1 And if delay occurs by the adverse claimant or his attorney trusting to the uncertain medium of the United States mail, he must abide the consequences.2 If a party fails to assert an adverse claim in the manner and within the time prescribed by law, the general land office will not take cognizance of a judgment rendered in his favor in a suit commenced after the expiration of the period of publication.3 And if the failure to bring suit is caused by the negligence or corrupt conduct of the attorney, it is a wrong which the general land office has no power to redress. But it was held that where suit had been commenced after the application by one who subsequently filed an adverse claim in regular form, the application would remain suspended until the case was decided in court or otherwise settled.5 However, the pendency of a suit by the applicant against the adverse claimant in relation to the same property will not excuse the bringing of the suit by the adverse claimant in support of his claim. It will be too late to bring such suit when the one pending is dismissed after the period of publication

has expired. In one case it was decided that in order to comply with the law as to the court in which suit should be brought, it must be in a district court of the state held in the same district in which the claim lay;7 but upon a rehearing, the commissioner overruled the former decision upon the ground that jurisdiction was a question for the court and not for the department to decide. A judgment in the suit brought in support of the adverse claim is final between the parties, and if it be against the adverse claimant, he will not be heard to contest the appliIcation for the reason that the claim is not on mineral ground. The general land office will neither review nor disregard the decisions of courts upon the merits of cases submitted to them regarding conflicting possessory rights to mining property.10 But an action in equity to restrain applicants for patent for a mining claim from further prosecution of their application is not such an action as can be taken notice of by the general land office.11 The only question in such contests is the right of possession.12 The mere fact of an adverse claimant obtaining judgment in his favor does not necessarily entitle him to a patent upon filing a certified copy of the judgment roll and the certificate of the surveyor-general, and påying fees and price of land.13 Where a further stay of proceedings is sought after judgment against the adverse claimant upon the ground that a motion for a new trial had been granted, it devolves upon him to show that the motion had been granted without conditions.14 Where suit is decided in favor of applicant, a copy of the judgment and a certificate of the clerk that no suit is pending should be filed with the register and receiver.15 Where a suit has been brought during the period of publication and notice thereof given to the register of the land office, it will operate as a stay of proceedings, though the publication

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