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. 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.s 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 application for the reason that the claim is not on mineral ground.9 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 may be found defective and the applicant is required to republish his notice.16 1 Rev. Stat. U. S., § 2326, ante, p. 19; 2 Landowner, 6. 2 4 Landowner, 34. 3 4 Landowner, 2. 7 6 Landowner, 105. 8 Sickel's Min. Laws, 298. 9 3 Landowner, 2. 10 Copp's Min. Dec. 19. 11 1 Landowner, 162. 12 2 Landowner, 5. 13 2 Landowner, 2. 16 Sickel's Min. Laws, 313. § 128. Same-Effect of waiver by applicant.-When the applicant for a patent before the department becomes a defendant in a suit brought by an adverse claimant, waives his claim, confesses judgment, and thus acknowledges plaintiff's superior right to the disputed ground, the controversy is ended, and plaintiff should no longer be deprived of a patent for the premises to which he has shown himself legally entitled.1 But the mere filing of an abandonment of the disputed ground does not terminate the contest. The judgment of the court must go to all the questions involved in the controversy before patent can issue for the portion of the claim not in dispute.2 13 Landowner, 194. 2 3 Landowner, 196. § 129. Same-Waiver by adverse claimant.-The contest may be determined either before or after suit brought, by the express waiver of the adverse claim, by filing a written withdrawal in the local land office,1 or by stipulations filed in court, consenting to a dismissal of the action.2 In addition to this express waiver, the same result will be conclusively presumed against the rights of the adverse claimant by his failure to file his claim within the period of publication, whether from voluntary laches or from ignorance of the pending application; 3 by his failure to institute suit within thirty days of filing his adverse claim; 4 by his failure to prosecute the suit with reasonable diligence.5 But the question as to whether reasonable diligence has been used in prosecuting the case is for the court.6 It has been decided, that by the adverse claimant failing to notify the local land officers of the commencement of the suit, he waived the adverse claim. But it has since been held by the commissioner, that although compliance with this regulation is desirable as a matter of convenience to the department, a failure to give such notice cannot deprive a party of his right under the law to be heard, and the burden of proof rests with the applicant to show that suit has not been commenced. But where complaint was filed in the State of Colorado, where the code required the issue of summons within thirty days, in order to give the case any standing in court, it was held that the mere filing of the complaint, without the issue of summons, as required by the state statute, was not the commencement of an action. The dismissal of the suit operates so conclusively upon the adverse claimant that the proceedings for a patent cannot be again stayed by commencing the action de novo after the lapse of the statutory period.10 So, where the suit has been dismissed for want of prosecution, the patent proceedings cannot be again suspended by reinstating the case in court.11 But where one of several co-owners made out a prima facie adverse showing to an application for patent, and his co-tenants sub sequently withdrew this adverse claim, their withdrawal could not prejudice the rights of the adverse claimant.12 11 Landowner, 66. 2 2 Landowner, 68. 3 4 Landowner, 2. 4 Copp's Min. Dec. 145; 2 Landowner, 6. 5 3 Landowner, 98; 6 id. 75. 6 Sickels' Min. Laws, 288. 7 2 Landowner, 82. 8 Sickels' Min. Laws, 238. 9 Sickels' Min. Laws, 291. 10 1 Landowner, 66. 11 Copp's Min. Dec. 23; Sickels' Min. Laws, 299. 12 Copp's Min. Dec. 158. § 130. Conflicts not considered as adverse claims.— The right which the law gives to the owner of a lode claim to follow the dip of his vein under adjoining lands is not the subject of an adverse claim by an adjoining proprietor. The patentee of a claim need not file an adverse claim to an application for patent for a cross lode, 'or other conflicting claim. The ground already patented will be excepted from the subsequent patent.2 Opposition by lienholders is equally unnecessary, as their rights are fully protected.3 So also are easements protected in such a manner as not to be affected by the issue of a patent, and consequently the owner of an easement cannot maintain an adverse claim so as to bring about a suspension of patent proceedings.4 Mere hypothetical controversies, which may and ought to be adjusted in the courts, will furnish no grounds for suspending the disposal of the public lands, pending their adjustment. The conflict of interest must be real and substantial.5 Where application is for a lode located prior to May 10, 1872, patent excepts all lodes but the one applied for, and an adverse claim by subsequent locator for surface |