No. 7. Parties are bound by the record. GENERAL LAND OFFICE, Messrs. BRITTON & GRAY, Washington, D. C. GENTLEMEN: I have carefully considered the application made by you, as attorneys for C. H. Morris, for a rehearing in the matter of the application for patent for the Dunkirk lode, Colorado. The location of the Dunkirk lode is for 3,000 feet, which shows clearly that the location was intended to be made. under the act of July 26, 1866, as no regulation or law, prior to that time, authorized the location of 3,000 feet for a mining claim in Colorado. The date of the location is September 3, 1867, in the record. This can not be taken or considered as the date of filing, for two reasons, viz.: First. This date is given by the locators themselves as the date of their location. Second. The filing of this notice with the proper Recorder was on the twelfth of September, 1867, as appears by the indorsement of the Recorder thereon. Parties are bound by the record which they make, and it has been the uniform rule of this office, at least since 1871, to confine them to the dates fixed by them, in their notice and record of location. It is true, that on the twenty-fifth August, 1871, a letter was written in the Silver Ore case, authorizing proof not in the record to be submitted; but, upon a full consideration of the matter, the claimant of the Silver Ore lode was limited and restricted to the number of feet authorized at the date of his notice of location. But if I entertained any doubt as to the correctness of the rule prescribed in my letter of September 17, 1873, in the Dunkirk case, which I do not, the applicant is not entitled to a modification of that decision, as it was originally made June 10, 1872, long before the application for patent was made. Your application for a rehearing is therefore overruled. Very respectfully, WILLIS DRUMMOND, Commissioner. No. 8. Letter to George M. Parsons. GENERAL LAND OFFICE, WASHINGTON, D. C., March 26, 1880. GEORGE M. PARSONS, Esq., Rocky Bar, Idaho. SIR: In reply to your letter of 27th January last, you are informed: Party not allowed to enter claim or possession of another person to discover vein or lode. 1. That a party is not authorized to go within the claim and possession of another party and discover a ledge on which he may base a location.* Hence his location would be void, and, so far as this office is concerned, the location of a third party upon a ledge outside the first location, but within the second, would probably be recognized as legal. The matter is one, however, which would doubtless be adjudicated in the courts, whose decisions this office would only be called upon to execute in the event of application for patent. Record should conform to location on the ground. 2. A locator's record should conform to the actual location on the ground, and the only proper method to correct a mistake of the kind you name would be to make a new location and new record. 3. It can not properly be stated just how far a locator may deviate from the plain requirements of section 2324, U. S. Revised Statutes, in making his location, and yet save his claim. Very respectfully, No. 9. J. A. WILLIAMSON, Commissioner, QUESTION OF ABANDONMENT. 1. The location of mineral land has the effect of an appropriation thereof, so far as preventing valid relocations until the same has been abandoned. 2. Abandonment is a question of fact, to be determined after due and regular hearing. * Location within lines of prior location.-Ground duly located and staked can not be entered for prospecting purposes as if it were vacant ground, and if veins are supposed to exist therein other than the one upon which the original locator claims, such veins must be found outside and traced into the limits of the claim staked, or otherwise proved to exist, before the holder of such second vein can enter the limits of the claim on the first discovery. Atkins v. Hendree, 1 Ida. 108. See, also, to the same effect, the decision of Judge Moody (First Jud. Dist. Dakota) in case of Golden Terra Mining Co. v. Maher et al. DEPARTMENT OF THE INTERIOR, OFFICE OF THE SECRETARY, WASHINGTON, D. C., June 29, 1878. SIR: I have considered the case of France, Pontez et. al. v. F. A. Harrington, applicant for patent on the Omaha Soda Mine Claim, Carbon County, Wyoming Territory, on appeal from your decision of November 9, 1877, rejecting the application of Harrington, and permitting France, Pontez et. al. to complete the proceedings in the matter of their application for patent for the same premises under the name of the Centennial Soda Mine. In my opinion, this case should be determined upon its merits. I can not concur in the view of counsel for appellant that the action of your office, December 8, 1876, recognizing the claim of Harrington, was correct, or that you erred in reopening the case. The facts in relation to the respective claims are stated at length in your letters of December 8, 1876, and November 9, 1877, and are substantially as follows: Harrington bases his claim to the property, and his application for a patent, both upon a location of the premises made September 12, 1873, by himself, Bowy, Earnest, and Thomas Gun, and upon a location made by himself September 10, 1875, according to the rules and regulations of the Natrona Mining District, in which the mine is located, which district was organized September 8, 1875. I do not deem it necessary to enumerate all the proceedings in connection with the claim, as the right to a patent. primarily depended upon the validity of either the last location, or of both locations. Section 2324 of the Revised Statutes is as follows: "SEC. 2324. The miners of each mining district may make regulations not in conflict with the laws of the United States, or with the laws of the State or Territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim, subject to the following requirements: The location must be distinctly marked on the ground so that its boundaries can be easily traced. All records of mining claims hereafter made shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim. On each claim located after the tenth day of May, eighteen hundred and seventy-two, and until a patent has been issued therefor, not less than one hundred dollars' worth of labor shall be performed, or improvements made, during each year. On all claims located prior to the tenth day of May, eighteen hundred and seventy-two, ten dollars' worth of labor shall be performed, or improvements made, by the tenth day of June, eighteen hundred and seventy-four, and each year thereafter, for each one hundred feet in length, along the vein, until a patent has been granted therefor, but where such claims are held in common, such expenditure may be made upon any one claim; and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made; provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location." * * * Mineral lands appropriated by location. Under the provisions of this section it follows that, if a tract has once been legally appropriated, and the terms of the law have been complied with, or, in other words, if the premises have not been abandoned, or, if once abandoned, have again been occupied and possessed by the original locators, their heirs, assigns, or legal representatives, prior to relocation by other parties, said premises are not subject to relocation. It appears that James Harbury located the premises in dispute, June 15, 1871, and under date of October 12, 1871, transferred his right to L. Shaffer, R. W. Baxter, and James France, for the sum of two hundred and fifty dollars. On the 23d of May, 1872, Shaffer, Baxter, and France located the premises under the provisions of the act of May 10, 1872. If this location had been abandoned by them prior to September 12, 1873, or prior to September 10, 1875, the tract was subject to relocation by Harrington et al., or by Harrington alone; but if not abandoned, said relocation was invalid. It is asserted by those claiming under the original locators that the tract was not, neither has it been, abandoned, but that the terms of the law have been complied with, and that they possess the superior right to the premises. Affidavits have been filed in support of this allegation. On the other hand, it is asserted by Harrington that the claim was abandoned prior to September 12, 1873, and that it has been abandoned by them since that date. The statements and affidavits in support of these respective claims are all ex parte, and are simply irreconcilable. In my opinion, no correct or intelligent decision can be rendered in this case upon the ex parte evidence now before the Department. Abandonment a question of fact. The question of abandonment is one of fact, which should be determined upon evidence submitted in due form before some officer authorized to receive the same, with opportunity for cross-examination. I think your office erred in deciding the case without attempting to ascertain the facts by means of a hearing. The question being one of fact, the proper method of obtaining evidence should have been employed.* It follows as a logical sequence, that the action of your office, approving the subsequent application of France, Pontez et al., filed November 14, 1876, for a patent for the same premises, was erroneous, as no action on this application should have been taken until all ques *In the courts: 1. Law and Fact.-Abandonment is a mixed question of law and fact. If. in this case, the plaintiff intended to give up his claim, and, in pursuance of that intention, quit paying assessments, it was an abandonment in fact. Doak v. Brubaker, 1 Nev. 217. 2. Intention-Law and Fact.-Abandonment is a mixed question of law and fact. If, in fact, a person intend to give up his claim and quit paying assessments in pursuance of that intention, it is au abandonment in fact. Oreamvono v. Uncle Sam G. & S. M. Co., 1 Nev. 215. 3. Intention.-Abandonment is a question of intention. Weill v. Lucerne M. Co.. 11 Nev. 200. 4. Intention-District Rules.-Abandonment, in its common law sense, is purely a question of intention. An abandonment takes place when the ground is left by the locator, without any intention of returning or making any future use of it, independent of any mining rule or regulation. St. John v. Kidd, 26 Cal. 263. 5. Abandonment is a question of fact for the jury. Weill v. Lucerne M. Co., 11 Nev. 200. |