part of an adverse claimant to prosecute his suit to judgment with reasonable diligence, shall be a waiver of his claim, but it does not provide, either in terms or by necessary implication, that you shall decide what constitutes reasonable diligence while suit is pending in court.

There can be no question but that the State court of Nevada has acquired jurisdiction over this cause, and it is equally clear that the object of the law was to require parties claiming an adverse interest in land included in an application for patent to try the right of possession, and have the controversy determined by the State courts before a patent was issued.

"Where a court has jurisdiction, it has a right to decide every question which occurs in the cause." (Elliott v. Piersal, 1 Pet. 340.)

The question of diligence in the prosecution of a pending suit is as much a question for the determination of the court as any other question of law or fact which may arise in the progress of the case, and one which, after the court has acquired jurisdiction, should be left for its determination.

Land office can not decide.

I do not think it was the intention of Congress that you should decide what constitutes reasonable diligence in the prosecution of a suit pending in a court of competent jurisdiction, for such a proceeding would necessarily interfere with matters which the court alone should determine.

Under such a practice it might occur in which you would hold that reasonable diligence had not been exercised, and issue a patent; while the court might hold otherwise, and give judgment for the adverse claimant, and the result would be a conflict of authority, and a confusion of titles, which would compel the successful parties to resort to further expensive litigation by bill in equity to procure title to the land which had been adjudged to belong to them by the

courts.

I am of opinion that the proper practice in cases of this character is for the defendant, if in his opinion the suit is not prosecuted with reasonable diligence, to move the court to dismiss the case for want of prosecution, and if the mo

tion is granted, cause the judgment to be certified to your office, when a patent can be issued without conflict with the jurisdiction of the courts, or the rights of the parties in interest.

Your decision is reversed for the reasons stated, without prejudice to the rights of either party, and further proceedings will be stayed to await the result of said suit.

The papers transmitted with your letter of April 14, 1879, are herewith returned. Very respectfully,

C. SCHURZ, Secretary.

The Commissioner of the General Land Office.

No. 40. The provisions of the mining law for the adjudication of adverse claims in the courts does not contemplate that the sale of the public mineral lands shall be indefinitely postponed, upon the simple filing of a complaint. DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, WASHINGTON, D. C., July 15, 1880.

Register and Receiver, Central City, Colorado.

GENTLEMEN: Referring to my decision of June 26, 1880, in the matter of the adverse claim of Philip J. Lonergan et al. upon the Coney lode against the application of Henderson H. Eddy for patent to the Mammoth lode, in which I held said adverse claim to be sufficient both in form and substance, Messrs. Britton & Gray, counsel for applicant, have filed certificate of the clerk of court for the First Judicial District of Colorado, to the effect that on the sixteenth day of February, 1880, said adverse claimants filed a bill of complaint in said court against Eddy, involving the matter of Coney and Mammoth lodes, but that up to the second day of June last, the date of said certificate, no summons had been issued in pursuance of said complaint.

Law of Colorado.

The code of Colorado provides that "the clerk shall indorse in the complaint the day, month, and year the same is filed; and at any time within one month after the filing of the same, the plaintiff may have summons issued."

Section 2326 U. S. Revised Statutes provides, "it shall be the duty of the adverse claimant within thirty days after filing his claim to commence proceedings in a court of competent jurisdiction, to determine the question of the right

of possession, and prosecute the same with reasonable diligence, and a failure to do so shall be a waiver of his adverse claim." Upon the commencement of such proceedings, all action in the local office must be stayed until the controversy has been settled or decided by a court of competent jurisdiction, or the adverse claim waived."

Suit must be commenced according to law within thirty days.

Counsel now move to dismiss said adverse claim on the ground that the adverse claimants have failed to prosecute their suit with "reasonable diligence," as required by the statute. I am of opinion that the negligence in this instance is positive; but it is also clear that the adverse claimants. have not commenced their suit in the manner contemplated by the statute. Until a summons is issued, the court acquires no jurisdiction over the subject-matter in controversy. The law contemplates that the sale of the public lands shall not be delayed by controversies of this character for a longer period than is necessary for the proper legal adjudication of the dispute. In some States the summons may issue at any time after the filing of the complaint. In California it may issue at any time within one year.

To hold that by the simple filing of a complaint, without having summons issued, an adverse claimant may indefinitely postpone the sale of the public mineral lands was never contemplated.

It is clear that the court in the present case can not acquire jurisdiction of the matter at issue, except by the consent of the parties, without the filing of a new complaint, long after the expiration of the statutory period for the commencement of actions to decide the merits of adverse claims. I therefore allow the motion of the counsel, and dismiss the adverse claim of Lonergan et al. on the several grounds that they have not proceeded with due diligence, and have not commenced their action in the manner contemplated by law.

Sixty days are allowed for appeal, and the parties in interest should be notified hereof. Should no appeal be taken, you will allow Mr. Eddy to pay for and enter the

Mammoth lode upon his filing proof of compliance with law.

Very respectfully,

J. A. WILLIAMSON, Commissioner.

No. 41. 1. Proof in support of an application for patent is ex parte in character.

2. When, after application has been made for patent, suit has been commenced to determine the right of possession, the only question that can arise in the General Land Office is whether the adverse claimant has complied with the terms of the law so as to bring his case within it.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., December 26, 1876.

SIR: On the fifteenth day of August, 1873, W. H. Pitts et al. filed an application with the local officers at Salt Lake City for a patent of a certain mining claim known as the King of the West Lode, situated in Little Cottonwood mining district, Utah Territory.

During the publication of the order made thereon, R. C. Chambers, claiming to be the purchaser for a valuable consideration of the mining claim known as the City Rock Lode, situated in the same mining district, filed an adverse claim for a portion of the tract embraced in said application, alleging prior discovery and improvement.

On the twenty-third of April, 1875, my predecessor reversed your decision of December 14, 1874, and rejected the application of Pitts et al., on the ground that the proof of the posting of the notice and diagram on the claim during the period of publication as required by law was defective.

He also rejected the adverse claim of Chambers, on the ground that he was the secret trustee of the City Rock Mining Company, of London, England, a foreign corporation.

On the twenty-ninth of the same month a motion was made for a rehearing, and on the twenty-fourth of August, 1876, I decided that my predecessor's decision should be so modified as to allow the applicants to make an entry of the tract described in their application, upon their showing compliance with law.

On the twenty-eighth ultimo the matter again came before me for a hearing by stipulation of the parties in interest upon the proofs heretofore filed in the case, subject to any legal objection thereto.

From the application of Pitts et al., and the accompanying papers, it appears that on the twelfth day of September, 1870, O. Pitts et al. discovered the lode or vein known as the King of the West Lode, planted a stake thereon, to

which they attached a notice, giving the names of claimants, number of feet claimed, and the general course and direction thereof.

Subsequently they filed in the office of the recorder of said mining district a notice of their location; the proof showing that the notice and diagram required by law to be posted on the claim during the publication of the order made upon filing the application has been supplied since my decision of the twenty-fourth of August last, from which it appears that said notice and diagram were posted on the claim and remained so posted during the time of such publication.

Objection was made on the hearing that the application does not show in terms the particular manner in which the applicants had complied with all the rules and regulations of said mining district.

In those particulars in which it is considered material that an application should show such compliance, viz., the amount of work done each year, and the possession and development of the mine, the proof shows that the applicants and their grantors did comply with the rules and regulations of said district and the laws of the United States. It is also objected that the notice of location is too indefinite.

The application shows that upon making the discovery of the lode the locators planted a stake thereon, to which they attached a notice of their claim, somewhat indefinite, it is true, but when taken in connection with the stake and the monuments mentioned, together with their subsequent improvements, I think was sufficiently definite, and that no one could have been or was misled thereby.

Proof, ex parte.

It was further objected that the proof of posting the notice and diagram upon the claim during the publication of the order made upon filing the application was not filed in proper time.

This question was considered upon the motion for a rehearing in the case, and in my opinion the neglect to file the proof with the application was sufficiently excused by the affidavits then filed.