that within the land embraced in the patent a lode exists which, contrary to the proof made by the placer claimants, was known to exist and to be capable of being profitably worked for its product at the date the entry was made.

When this is made to appear the placer claimants may be forced to give up that part of their entry. Generally this is made to appear in the courts, because the government having issued the patent is held not to have any further jurisdiction, but as soon as the courts declare vacated any part of a patent, the government at once acquires jurisdiction and may again dispose of the tract heretofore covered by it.

In the case at bar that which might have been proven in court is admitted by the proprietor of the placer by conveying the property to the lode claimant. The lode claimant has conveyed the same to the United States, and the government now has jurisdiction to dispose of it, the same as if no disposal thereof had ever been made or attempted. The deeds have been passed to rectify a mistake, and by these conveyances the government and the parties in interest are left in precisely the same position that would probably have been occupied by each at the end of tedious litigation.

The placer patentee does not forfeit his whole claim, but only that part wrongfully patented to him, and it is a useless practice that requires him to surrender the whole of his patent in order to have all of it patented back to him except the small strip which the proof shows does not belong to him.

It is not a question of issuing a second patent, because that part of the outstanding patent conflicting with the lode has been vacated and surrendered to the government by the deeds, and I see no reason why you may not, by consulting the maps of survey in this case, cancel on the record of patents that part of the patent outstanding which conflicts with the lode location as described in the deeds.

A patent is but the evidence of title, and a patent in the hands of one who by deed has conveyed his interest thereunder to another, is of absolutely no force because his title has passed from him.

The government in this case, to correct a mistake, has taken to itself the title to the strip known as the lode claim, and no one can have any interest therein except the rightful holder thereof under the mineral laws providing for the disposal of lodes; for such parties the govern ment holds the title in trust, and the fact that the original patent issued on the placer claim has not been surrendered to you, as a whole, can not prevent you from acquiring jurisdiction where the government recovers the title thereof through mesne conveyances.

Title is what gives the government jurisdiction over the public lands, and where a title has erroneously been given, for the purposes of correcting the error, without resorting to the courts, the parties may re-convey to the United States, and the title received by the government in this way is as good as when recovered in the courts.

So long as the government can trace its title to itself, such title cannot be questioned; having title it has jurisdiction to dispose of the land the same as it has of all public lands.

Reconveyance should not be allowed except in cases where the govern. ment would feel compelled to have the courts vacate and set aside patents for fraud, accident or mistake.

In such cases it is not believed any confusion or inconvenience will arise by accepting the conveyance of the property instead of compelling reconveyance in the courts.

By the departmental letter of October 20, 1891, it was not intended as a direction to you to allow the entry of the lode claimants, but the papers in the case were returned to you in order that in connection with the protest of the Dunkin Mining Company, you might consider the application for patent on its merits.

RICKS v. CURTIS.

Motion for the review of departmental decision rendered in the case above entitled September 11, 1890, 11 L. D., 275, denied by Acting Secretary Chandler, December 24, 1891.

MINING CLAIM-ADVERSE CLAIM-PUBLICATION-APPEAL.

WATERHOUSE v. SCOTT ET AL.

In computing the period within which an adverse claim must be filed the first day of publication should be excluded.

If the last day of publication falls on a legal holiday, the adverse claim may be properly filed on the next business day.

It is not a valid reason for refusing to accept an adverse claim that proof of publicacation has not been received.

The statutory fee for filing and acting upon an adverse claim cannot be required of the adverse claimant in the event that his claim is rejected by the local office. An appeal will properly lie from the rejection of an adverse claim.

Secretary Noble to the Commissioner of the General Land Office, December,

24, 1891.

I have considered the appeal by Charles O. Waterhouse from your decision rejecting his adverse claim, presented for filing in the land office at Marysville, California, on December 26, 1888, against mineral application No. 317, filed by John Scott December 1, 1887, in behalf of himself and others as co-owners of the Wahoo and West Point placer mining claim.

The notice of said application first published was defective in the description of the land.

On October 15, 1888, the register issued a second notice, which required all adverse claimants to file their adverse claims with the local officers, during the sixty days period of publication thereof, according to law and the regulations thereunder, or they will be barred by virtue of the provisions of chapter six of title thirty two of the Revised Statutes of the United States. It is hereby ordered that the foregoing notice of application for a patent be published for a period of sixty days (ten consecutive weeks) in the Mountain Messenger, a weekly newspaper published in Downieville, Sierra county, California.

A foot-note was appended to said printed notice as follows,

"The first publication of the foregoing was made on the 27th day of October, 1888, and ending on the 29th of December, 1888” which correctly gives the dates of the first and tenth insertions of the notice in said newspaper, as appears from the affidavit of proof of publication made January 2, 1889.

As this notice was published in a weekly newspaper, the tenth and last insertion just completed the ninth week and sixty-third day of publication, excluding the first day, according to the long established rule. Miner v. Mariott (2 L. D. 709); Bonesell v. McNider (13 L. D. 286).

On December 26, 1888, which was the 60th day of publication, and therefore within the time for filing adverse claims as ordered by said notice above cited, and as required by law, the plaintiff, Charles C. Waterhouse, presented to the local officers an adverse claim to be filed with the records of said office, and tendered the fee of ten dollars for filing the same.

The action and decision of the local officers thereon is thus detailed by them in their letter to you of February 28, 1889:

The sixty days period of publication having expired on the 25th December, 1888, on the next day, the 26th of said month, Charles E. Swezy, Esq., attorney for said adverse claimant, appeared and presented said adverse claim and tendered the fee of $10 to have the same entered as an adverse claim. The paper was filed on that same day; but owing to the absence of proof of publication of notice, action on the same and acceptance of the tender was delayed awaiting said proof. And now on the 22nd day of January, 1889, the proof of publication having been received, demand was made upon said attorney for payment of said fee of $10, who offered and was willing to pay the same upon condition that said adverse claim was favorably acted upon and the mineral entry suspended. He was thereupon advised by us that payment must precede any official action. And upon his declining to pay the said fee, and upon the further ground that it was considered by us that said adverse claim was not presented and filed within the period required by law of sixty days of publication of notice, the, same was rejected as an adverse claim.

On January 22, 1889, the day when said decision was rendered, the local officers allowed the mineral entry of John Scott and co-owners (No. 242), and issued final certificate and receipt therefor. An appeal was taken by said Waterhouse from the decision of the local officers rejecting his adverse claim, which was affirmed by you in your letter of August 2, 1890. An appeal now brings the case before me.

It is evident that the local officers made an incorrect count of the

sixty days of publication, when they held that the sixtieth day was December 25, 1888. The case of Miner v. Mariott, supra, was decided January 4, 1884, and has the force of law, and was doubtless before the local officers, and affords a sufficient rule for their guidance in such cases. This rule was disregarded by them.

Again, as the 25th day of December, 1888, was Christmas, it was a legal holiday by the laws of California (Civil Code, Ed. of 1886, Sec. 7), which also provides that any act of a secular nature, appointed by law to be performed upon a holiday, may be performed upon the next business day with the same effect (Ibid. Sec. 11). This case therefore, if December 25, 1888, had been the last day of publication, would have come within the rule established by this Department in the case of Ground Hog Lode v. Parole and Morning Star (8 L. D., 430), decided April 25, 1889.

The excuse given for not receiving the adverse claim and the fee tendered, "owing to the absence of proof of publication of notice,” cannot be accepted as valid. The law allows the adverse claim to be filed on any one of the sixty days of publication, and the local officers are assumed to know what the period of publication is, as the register is required to publish the notice, and to "post a copy of such notice in his office for the same period." Mineral circular of October 29, 1881, p. 21, Sec. 34, Ed. of 1889. The register is also required, upon the proper filing of an adverse claim,

to give notice in writing to both parties to the contest that such adverse claim has been filed, informing them that the party who filed the adverse claim will be required within thirty days from the date of such filing to commence proceedings in a court of competent jurisdiction to determine the question of right of possession, etc. (Ibid. p. 23, Sec. 50).

It is also the duty of the local officers, upon the filing of an adverse claim during the period of publication to stay all proceedings "except the publication of notice and making and filing of the affidavit thereof," until the controversy is settled or decided, or the adverse claim waived. (Sec. 2326 of Rev. Stats.) If no adverse claim is filed within the period of publication it shall be assumed "that no adverse claim exists." (Sec. 2325)

All these requirements are based upon a presumed knowledge on the part of the local officers of the period of publication, and of the date when it expires. And it is a familiar principle that the law should be so construed as to save the right intended to be secured and prevent a forfeiture, if such a construction be admissible. In this case the proof of publication does not appear to have been received till January 22, 1889, or on the 27th day after the last day of publication, so that only three days of the thirty days thereafter, remained to give the notice and bring the suit required by law, if the adverse claim had been received as it should have been. The local officers have no authority to so abridge the period allowed by law.

On January 22, 1889, the local officers demanded a fee of $10 for re

jecting the adverse claim. They state that the adverse claimant "offered and was willing to pay the same upon condition that said adverse claim was favorably acted upon and the mineral entry suspended." The statute prescribes the fees to be paid to each of the local officers upon filing an adverse claim, as follows, (Sec. 2238, Rev. Stats.): Ninth. A fee of five dollars for filing and acting upon each application for patent or adverse claim, filed for mineral lands, to be paid by the respective parties.

As already stated, the law provides that if an adverse claim is not filed within the period of publication it must be assumed "that no adverse claim exists;" if it does not exist it cannot be "filed and acted upon." The above statute contemplates a legal filing, "within the sixty days," and the "action" to be taken consequent thereon, as already mentioned. The demand of the local officers was erroneous. The adverse claimant was only required to pay the fee "for filing and acting upon his adverse claim, and that he offered to do, and his tender was therefore good in law.

Under these circumstances the principle announced in the case of Lytle v. Arkansas (9 How., 314, 333), is applicable that,

It is a well established principle, that where an individual in the prosecution of a right does everything which the law requires him to do, and he fails to attain his right by the misconduct or neglect of a public officer, the law will protect him.

The adverse claimant in this case must be protected in his right to file his adverse claim. It will therefore be received upon his payment of the fee, and be duly filed, and such further action taken thereon as the law requires.

The applicants have filed, since the appeal removed the case to this Department, a motion to dismiss the same on the ground that "the Executive Department has no jurisdiction of adverse mineral claims which, under the law, are adjudicated exclusively by the courts of law; and for the further reason that applicant is a protestant merely and has no standing as a litigant in the case, and no right of appeal."

The first proposition is correctly stated, so far as the subject matter of the adverse claims is concerned. But this Department has the right, and it is its duty, to decide whether or not an adverse claim has been filed within the period of publication, as required by law. And if it has been so filed, or presented for filing, and the adverse claim has been illegally rejected, the adverse claimant has been denied a right secured to him by the law, and from the denial of that right he can appeal. It is a "question relating to the disposal of the public lands and to pri vate land claims" within Rule 81 of Rules of Practice.

The second proposition is without merit. The adverse claimant is a litigant for the right to file his adverse claim. He is knocking at the door of this Department that it may be opened to enable him to assert his right to the land by the institution of a suit in a court of competent jurisdiction, as provided by law. This, I think, he has a right to do. The motion is denied.

Your judgment is reversed.

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