50 F. 366 | U.S. Circuit Court for the District of Idaho | 1892
It is alleged by the bill that this action is instituted in pursuance of the provisions of section 2326, Rev. St-., and that “complainants made their protest and adverse claim under oath and in due form of law, and filed the same in the United States land office, ” etc. The defendants plead, in abatement of the action, that no adverse claim was filed or allowed in such land office. It sufficiently appears that'an adverse claim iii due form wás presented to the land office for filing, but .was rejected because it did not appear therefrom that a survey of the disputed premises, and "a map thereof, had been made by a deputy United States surveyor. Said section 2326 requires, that the adverse claim filed “shall show the nature, boundaries,.and extent” thereof, This statute, is in all particulars complied with by the adverse claim presented to the land office, and no question is or can be raised that the statute itself is not fully observed. But by the forty-ninth rule, issued by the commissioner Of the general land office, approved ‘by the secretary of the interior, the'plat showing the boundaries'of the conflictlng premises “must 'be'made, from an actual survey by a deputy United States surveyor.” Must this rule be regarded as a part o'f the law,' and bé closely followed? is'the only .question for determination. • The plat and certificate1 attached comply.; with thé rule, except-'that'It does nót. appeal1 that thé áürveyót Who'made them" and'the siifvéj/'wWs'a Únit'éd; ipldtes surveyor. In support of the effect of this rule, the department decisions found in Sickles, Min. Dec. 263, 265, 277, are cited. In those cases it appears the adverse claims were very irregular, and wholly failed to comply with said rule in not showing that any survey had been made, and in omitting the certificates required. Their conclusion is not based alone upon the fact that the surveyor was not a United States deputy, but, on the contrary, it is stated in one that “no surveyor,” and in another that “no United States deputy or other surveyor,” had performed the required acts. It may fairly be inferred from these cases that the performance of such acts by any surveyor would be sufficient. Weeks on Mineral' Lands, 190, says they may be performed by a United States deputy or other surveyor. But admitting that such rule can be complied with