to cross-examine the witnesses, but also declined to pay the cost. The notary refused to allow said cross-examination without payment of costs, upon the ground that the testimony was being taken under rule 55, and not under rule 54, and that the contestant was not required to pay the cost, except upon his own direct examination.

The ruling of the local officers refusing to allow claimant to cross-ex amine contestant and his witnesses without paying the cost therefor was error under either rule. Rule 55, requiring each party to pay the cost of taking testimony upon his own direct and cross-examination, is construed to mean, that "each party must pay the cost of taking the testimony of his own witnesses, both in the direct and cross examination of such witnesses." (Milum v. Johnson, 10 L. D., 624.)

If the decision of your office was sustained by the testimony of the contestant, it would be immaterial whether he had been cross-examined, or not, but I do not so find. You will therefore remand the case to the local officers, with directions to allow the cross-examination of the witnesses by the opposing parties, and at the hearing ordered for this purpose either party may introduce further testimony material to the issue.

FINAL CERTIFICATE-PATENT-MISDESCRIPTION OF LAND.

MARTHA BELL.

A misdescription of the land in the final certificate and patent will not defeat the right of the purchaser to the land actually covered by the sale and purchase, or render such land subject to the entry of another.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, October 17, 1890.

I have considered the appeal of Martha Bell from your decision of June 18, 1889, rejecting her application to make homestead entry for the S. of SE. of Sec. 6, T. 18 S., R. 2 W., Huntsville Meridian, Montgomery, Alabama.

In your decision you state that the land in question was embraced in the homestead entry No. 5504, of Samuel B. Otts made July 1, 1873, which was commuted to cash entry No. 16,639 on January 15, 1881, under the act of June 15, 1880, and that patent issued October 30, 1882, for the land. Hence the rejection of said application.

The appeal is based upon the ground that the cash entry was for other land than that embraced in the homestead entry of Otts, and this contention is based upon the fact that the register in his cash certificate No. 16,639, described the land as S. of SE. of Sec. 6, T. 18 S., R. 2 W., St. Stephens Meridian, instead of Huntsville Meridian.

Otts original homestead application was for the S. of SE. of Sec. 6, T. 18 S., R. 2. W., Huntsville Meridian, containing 79.97 acres.

The records of your office show that the entry was made for the same land.

On December 3, 1880, Otts made affidavit that he was the same person who made homestead entry No. 5504, at Montgomery, Ala., on July 1, 1873, for the S. of SE. of Sec. 6, T. 18 S., R. 2 W., and he made application to purchase said land under the act of June 15, 1880. This was granted and payment was made to the receiver by Otts for 79.97 acres and the register issued his certificate as above recited and patent issued in which the land is described as S. of SE. of Sec. 6, T. 18 S., R. 2 W., St. Stephens Meridian.

The mistake in the patent was made by erroneously describing the meridian. With this exception the land is properly described and there can be no doubt whatever in relation to what the intention of Otts was, also as to the intention of the government; the former intended to purchase the tract in question and did purchase it, and the government intended to sell him said land and did sell it, and accepted his money in payment for the same, and the receivers' receipt is evidence of that fact.

The subsequent error on the part of the register in inserting in his certificate the wrong meridian in no way invalidated the transaction be. tween the purchaser and the government, that transaction ended when the former made his proper application to the register to purchase the tract in question, and made payment for the same to the receiver. The register's certificate, subsequently issued, contained a recital of this transaction. If this recital contained an error which led the Land Department to issue a patent describing a meridian which improperly lo cated this land, that fact in no way invalidates the claim of Otts. And it would be bad faith upon the part of the Department to now attempt to disturb him therein, and it will throw no obstacle in the way of defeating the intent of the government in conveying the land upon which Mr. Otts settled, to him.

It is asserted that Bell has resided upon the land for fourteen years, and a hearing is requested. Admitting that she settled upon the land at the date alleged, at that time the tract was embraced in the uncanceled homestead entry of Samuel B. Otts, and she could acquire no legal right under said settlement, and I see no reason why a hearing should be ordered.

Your decision is affirmed.

MINING CLAIM-ADVERSE PROCEEDINGS.

JAMIE LEE LODE v. LITTLE FOREPaugh Lode.

An adverse claim will be recognized as filed within time, if such filing is in accordance with the regulations then in force.

No action can be taken in the Land Department on an application for mineral patent during the pendency of adverse judicial proceedings.

The relinquishment by the applicant of the land originally in conflict, does not authorize the Land Department in re-assuming jurisdiction of the case, during the pendency of judicial proceedings by adverse claimant, who has been permitted in such proceedings to amend so as to embrace a larger quantity of land than was included in the original adverse claim.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, October 20, 1890.

I have considered the appeal of James Henshall entryman of Jamie Lee lode claim, lot No. 472, in SW. of Sec. 18, and NW. of Sec. 19, T. 9 S., R. 79 W., 6th P. M., mineral entry No. 2478, Leadville, Colorado, land district, from so much of your office decision of February 13, 1889, as relates to the Alpha adverse claim, and the appeal of William Coleman and Israel Cramer representing the adverse claim of the Little Forepaugh lode claim from your said office decision dismissing the adverse claim of said Little Forepaugh.

The record shows that James Henshall made application for patent for the Jamie Lee lode claim on the 23rd day of August, 1879. Due notice thereof was given by posting and publication in a weekly newspaper. The first publication of said notice was in the issue of said paper dated the 23d day of August, 1879, and the last one on the 25th day of October, following.

On the 24th day of October, 1879, Israel A. Cramer and William Coleman filed in the local office the adverse claim and protest of the Little Forepaugh lode claim showing a conflict to the amount of .4385 acres with the Jamie Lee application.

On the 25th day of October, 1879, The Enterprise Mining and Prospecting Company of Colorado, by its secretary, Hermann W. Polliz filed the adverse claim of the Alpha lode claim showing a conflict of 2.0638 acres with the Jamie Lee. Suit was commenced on each of said adverse claims, in the district court of Lake county, Colorado, within the thirty days required by law, judgment was entered in each case in favor of the adverse claimant, and afterwards set aside by the court, and so far as the record shows said suits are still pending and undetermined.

January 28, 1885, the Jamie Lee claimant filed in the local office a relinquishment of all that part of said claim which was filed in the United States land office of Leadville, Col., that conflicts with the Little Fore paugh claim "as described in and shown by said protest and adverse and plat thereto annexed." It appears that the Little Forepaugh was

allowed to amend its complaint in court so as to embrace a larger quantity of land than was included in the adverse claim filed in the local land office.

On the 13th day of February, 1889, your office dismissed the adverse claim of the Little Forepaugh for the reason that the Jamie Lee claimant duly relinquished from his application for patent and before entry all the land covered in the Little Forepaugh adverse claim as filed.

From your office decision the Little Forepaugh claimants appeal. On the same date your office decided that as "the Alpha adverse claim was filed on the sixty third day of the period of publication of the Jamie Lee application for patent, and under the practice of this office prevailing at the time of such filing, to wit, October 25, 1879, it is considered as having been filed in time." This point was correctly ruled by your office upon the authority of Miner v. Marriott et al. (2 L. D., 709).

Your office further properly held that as the adverse claim of the Alpha was pending in court, that the court was the proper forum to determine all questions between the respective parties, and "pending proper evidence of the final determination of said Alpha adverse suit the Jamie Lee will remain suspended in the files of this office." From which decision the Jamie Lee claimant appeals.

As to the appeal of the Little Forepaugh it is insisted in argument by the Jamie Lee that the Little Forepaugh is not entitled to be heard on this appeal for the reason that no notice of appeal was ever served on the Jamie Lee claimant, or his attorney, as required by Rule of Practice 93. It is urged against this claim that "It is true there is on the appeal paper no evidence of such service, but present counsel filed no motion to dismiss the appeal for this reason, nor any evidence (such as the affidavit of the then attorney or of the claimants) that such copy was not served; it is simply assumed that service was not had, but it is too late to raise the point after argument by them on the merits of the case; such argument is the recognition of the appeal, and waiver of failure to serve notice." In view of the conclusion I reach upon the case I do not deem it necessary to pass directly upon the question thus raised. When an adverse claim is filed during the period of publica tion and suit commenced thereon then full and complete jurisdiction over the subject-matter connected with all of the rights of the parties is transferred from the Land Department until final judgment is rendered by the court and a copy of the record filed in the local land office, whereupon full and complete jurisdiction re-vests in the Land Department to require a compliance with the requirements of the law in other respects not adjudicated by the court.

Revised Statutes, section 2326, provides:

Where an adverse claim is filed during the period of publication, it shall be upon oath of the person or persons making the same, and shall show the nature, bounda ries, and extent of such adverse claim, and all proceedings, except the publication of

notice and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. . . . After such judgment shall have been rendered, the party entitled to the possession of the claim or any portion thereof may, without giving further notice, file a certified copy of the judgment roll with the register of the land office, together with the certificate of the Surveyor-General that the requisite amount of labor has been expended or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment-roll shall be certified by the register to the Commissioner of the General Land Office, and a patent shall issue thereon for the claim or such portion thereof as the applicant shall appear from the decision of the court to rightly possess.

In the case of Richmond Mining Co. v. Rose et al. (114 U. S., 576), in passing upon this very question the court said:

It is apparent that the law intended, in every instance where there was a possibility that one of these claims conflicted with another, to give opportunity to have the conflict decided by a judicial tribunal before the rights of the parties were foreclosed or embarrassed by the issue of a patent to either claimant . . . . It is in full accord with this purpose that the law should declare, as it does, that when this contest is inaugurated the land officers should proceed no further until the court has decided, and that they shall be governed by that decision; to which end a copy of the record is to be filed in their office. They have no further act of judgment to exercise. If the court decides for one party or the other the land department is bound by the decision . . . . With all this these officers have no right to interfere. After the decision they are governed by it. Before the decision, once this proceeding is initiated, their function is suspended.

The Little Forepaugh claim was filed and suit commenced upon it in the required time; after the suit was commenced and while it was pending in court the Jamie Lee filed its relinquishment as to the conflict as originally filed in the land office, and upon this your office assumed to resume proceedings by deciding that the Jamie Lee was entitled to its patent. In this your office was clearly in error. A discrepancy between the adverse claim as filed and accepted in the local office, and that upon which suit is instituted will not warrant the Land Department in the resumption of proceedings during the pendency of the suit in court. Bay State Gold Mining Co. v. Trevillion (10 L. D., 194).

For the foregoing reasons your office decision as to the Little Forepaugh claimants is set aside and proceedings will be stayed thereon in your office until the proper evidence of the termination of the suit is furnished, upon receipt of which your office will proceed as provided by law. Your office decision as to the Alpha claim is hereby affirmed. Said decision is accordingly modified.