On the twenty-fourth of March, Jacob B. Fisher, John Melton, and F. W. Earl filed an adverse claim, known as the "Earl mine," and on the twenty-first day of April, 1875, Fisher and Melton commenced suit in the eleventh judicial district, and at the August term of said court a judgment of nonsuit was entered in favor of the defendant. This decision was affirmed by the supreme court of California at the following January term, the court holding that "the defendant was the owner of an undivided interest in the mining claim, and as such was entitled to the exclusive possession thereof against the plaintiffs, they not having shown any title in themselves."

On the twenty-eighth of March, 1876, Fisher, Melton, and Earl commenced an action in the court of the eleventh judicial district to recover possession of said "Earl mine," and they request that said application shall be suspended until said suit shall have been determined, unless the application for patent shall be rejected.

In your decision of September 2, 1876, you held that this suit, having been commenced after the expiration of the thirty days prescribed in the seventh section of the act of May 10, 1872, can not operate as a bar to the issuance of a patent.

This decision is in accordance with that of my predecessor in the case of H. B. Morse v. Eli S. Streeter. (Copp's U. S. Mining Dec. 127.)

You also state that the application will remain suspended until it shall have been clearly established that the applicant has the possession, and the right of possession, to the premises, by virtue of compliance with the local laws or customs and the congressional enactments.

On the twenty-eighth of December, 1876, A. St. C. Denver, Esq., attorney, in behalf of the protestants, filed an argument adverse to the claim of Lambard.

December 4, 1876, the local officers transmitted additional evidence in the matter of the application of Lambard. In your decision of the ninth ultimo, you overruled the objections to the issuance of a patent, and announced that the case would be taken up at once for patenting. On the tenth ultimo, Mr. Denver, in behalf of the owners of the "Earl mine," the contestants and protestants, appealed from said decision. On the thirteenth ultimo, you informed

Mr. Denver that an appeal by a protestant did not lie from the decision of your office, and on the same day Mr. Denver appealed from said decision, claiming, first, that under the provisions of the sixth section of the act of May 10, 1872, an appeal may be taken by the protestants; secondly, that Fisher et al. did file an adverse claim and commenced suit within the time required; thirdly, that a suit is now pending before the district court, in which the property is situated, and that while said suit is pending they have the right to appear as contestants, as well as protestants, having the right to appeal from your decision, in order that their legal rights may be reviewed by the appellate authority.

I think your decision, that the suit now pending in relation to the "Earl mine" was not commenced within the time required, must be sustained; hence the parties can appear in the attitude of protestants only.

In my decision of March 24, 1876, in the matter of the application for a patent for the Boston quicksilver mine, on appeal from your decision denying the right of Mr. McGarrahan to appeal to this department, it was stated that "while it was laudable in Mr. McGarrahan to make suggestions to your office of what he believed was an attempted fraud upon the Government in the matter of this application for patent, and proper for you to accept and consider such suggestions in an examination of the case, I can hardly conceive that it will be seriously contended that he, not being a party in interest, but standing in the relation of amicus curice, has a status entitling him to an appeal. I am very clearly of the opinion that he has no such right, and therefore affirm your decision to that effect."

Applying that rule to this case, Foster et al. not being parties in interest, in the eye of the law, by reason of their failure to commence suit in time, and appearing as protestants only, have no right of appeal.

It appears, as before stated, that E. R. Morey, claiming the "Charles mine," presented an adverse claim, and commenced suit, upon complaint duly filed, within the prescribed time.

This suit was pending at the date of your decision, and, in my opinion, should have operated as a stay of all proceed

ings before this department, as indicated in my letters of December 26, 1876, in the case of the King of the West v. City Rock, and of the third ultimo, in the case of the Last Chance No. 2.

Since the date of your decision, however, viz., on the sixteenth of February, there was filed with me a certified copy of the complaint of E. R. Morey in the suit commenced April 21, 1875, in the eleventh judicial district of California, also a duly certified copy of the following confession of judgment:

No. 2785.

In the district court, eleventh judicial district, county of El Dorado, State of California.

E. R. Morey, plaintiff, v. O. L. Lambard, defendant.

Now comes the defendant by his attorneys, G. J. Carpenter and George Cadwalader, and waiving all his other pleas in the above cause, hereby disclaims any right, title, or interest in and to the premises described in the complaint of plaintiff herein, and consents that plaintiff have judgment according to the prayer of his complaint herein. G. J. CARPENTER,

GEO. CADWALADER,

Attorneys for Defendant.

I hereby acknowledge service of the above answer, and consent to the filing thereof.

A. P. CATLIN,

GEO. G. BLANCHARD,

Attorneys for Plaintiffs. Indorsed-Filed February 6, 1877. George Burnham,

Clerk.

Papers filed on the sixteenth instant also show that the same action was taken in the case of J. B. Fisher et al., claiming the "Irish" mine, who commenced suit April 21, 1875, as appears from the following:

No. 2786.

In the district court of the eleventh judicial district, county of El Dorado, State of California.

J. B. Fisher and John Nelton, plaintiffs, v. Orvill D. Lambard, defendant.

Now comes the defendant by his attorneys, G. J. Carpenter and George Cadwalader, and waiving all his other

pleas in the above cause, consents that plaintiffs have and recover judgment against him according to the prayer of their complaint herein.

G. J. CARPENTER,

GEO. CADWALADER,

Attorneys for Defendant.

I hereby acknowledge service of the above answer, and consent to the filing thereof.

A. P. CATLIN,

GEO. G. BLANCHARD,
Attorneys for Plaintiffs.

Indorsed-Filed February 6, 1877. George Burnham,

Clerk.

It thus appears that Lambard has waived his claim to the premises in dispute, and debarred himself from asserting his right to the same in the future.

The seventh section of the act of May 10, 1872, requires that when suit has been commenced all proceedings shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived.

By the action of Lambard, the defendant, taken before the proper tribunal, viz., the court having jurisdiction in the case, the plaintiffs, Morey, Fisher et al., have obtained all they sought to obtain by the commencement of the suits, and the same are virtually ended, and the controversy settled. No reason therefore exists why a patent should not issue for the tract not in controversy.

The abandonment of the surface ground, or of the entire premises in controversy, before this department, and the continued prosecution of the suit, involving the same premises, before a court of competent jurisdiction, is not in my opinion a proceeding justified by a correct interpretation of the mining law, but when the applicant for a patent before this department who becomes the defendant, in a suit commenced by an adverse claimant, in a court of competent jurisdiction, waives his claim, confesses judgment, and thus acknowledges the superior right of the plaintiff to the tract in dispute, he has done all that can be required of him in thus ending the controversy, and should be no longer deprived of a patent for the premises to which he has shown himself legally entitled.

Your decision, holding that Lambard is entitled to a patent, is affirmed for that portion of the premises not covered by the claim known as the "Charles" and the "Irish" mines.

The papers transmitted with your letter of the eighteenth ultimo are herewith returned.

Very respectfully,

CHAS. T. GORHAM, Acting Secretary.

The Commissioner of the General Land Office.

No. 37. The mining law contemplates that the courts shall decide all questions as to relative rights of contesting claimants.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, D. C., April 25, 1879.

Register and Receiver, Sacramento, California.

GENTLEMEN: I have examined the papers in the matter of the application of Albert Lasey, for patent to the Valentine Gold Quartz Mine, in Glencoe Mining District, Calaveras County, California, against which M. Eldred and Wm. H. Knight filed separate adverse claims for certain portions of the mine, during the legal period of publication of notice. You rejected the adverse claim of Knight, who appealed from your decision.

You allowed the adverse claim of Eldred, from which action Lasey appealed.

I am of the opinion that Eldred's adverse claim was properly presented, and that he shows its nature, boundaries, and extent.

He made a relocation March 23, 1876; and alleges the legal insufficiency of Lasey's location of January 1, 1876. Courts must decide relative rights of contesting parties.

I can not undertake to enter into the relative merits of said claims, and indicate my opinion concerning the legal rights of either party. It is contemplated by section 2326, United States Revised Statutes, that the merits shall be adjudicated by the courts.* Your action upon Eldred's adverse claim is approved.

* The object of the acts of Congress of July 26, 1866, July 9, 1870, and May 10, 1872, in relation to the patenting of mining claims, was not to confer any additional jurisdiction upon the State courts, but to require parties pro