The Anaconda standard., 1895-11-21
BY THE SECRETARY
A Decision Which Is Of Interest to
Mining Men.
FERGUSON VERSUS HANSEN
The Protest Was Entered on the
Ground That the Law Relating
to Posting Notices Had Not
Been Compiled With.
VERSUS HANSEN

The secretary of the interior has rem
dered a decision which is of great in
terest sto mining men generally. 1t Is
the case of Thomas Ferguson ct al. VS..
Magnus Hansen ct al. involving three
mining claims in the vicinity of Butte.
Ferguson entered a protest against the
entry of Hansen. on the ground that
the law relating to posting had not
been compiled with. The decision of
the secretary of the interior, as given
in the Helena Independent, Is as fol-
lows:
The record shows that application
for patent was filed IN the local office
at Helena Nov. 8, 1892. by Magnus
Hansen and John c. Paulson for the
Priscilla, Georgiana and Dorcas lode
mining claims; that publication notice
of said application was made. on order
Of the register, in the semi-weekly In
ter Mountain, the first publication on
Nov. 6, 1892, and the last Jan. 8. 1893.
On Jan. 13, 1898. attorneys for Thom-
as Ferguson, ct al, claimants of the
Happy New Year lode claim. and
Thomas p. Byrne ct al, claimants or
the Lucky Tom lode claim. filed a pro-
test against the entry by Hansen. al
leging prior location of their claims;
thar they had no notice OF the applica-
ton, because II was published In pa
per not of general circulation. On Jan.
20 following they filed another afhdavit
made by the parties, alleging In addi-
tion to what is stated above, that the
notices were not posted in conspicuous
places on the claims and that not to
exceed one and one-half days work
had been done on the claims by the
applicants. Again, on Feb. 8, 1892, they
filed another affidavit, setting out with
more detail the above allegations. sup
porting the same by additional affida-
Wits.
Notice was issued for a hearing up
on two Of the charges; ~ that notice
had not been conspicuously posted,
and (2) that applicants had put no inn
provements on the claims. The testi-
mony was taken before a notary pub
lie at Butte, and on examination there
of the local officers decided. o. that
sufficient work had been done. and (2l
that although the notices were posted
on the claims, yet they were put in IN
conspicuous places. They recommended
that applicants be required to repost
and republish the notices.
On appeal, your Office, by letter of
March is, 1894, concurred with the reg
lister and receiver upon all points, ex-
cept as to posting the notices in con-
spicuous places, and reversed them on
that, on the ground, however, that the
testimony of the protestants was OF a
negative CHdT4CltT puiSly, Wdlic tndt
offered by claimants was OF witnesses
who were present when the notices
were posted and saw them while re-
manning posted. On this point your
office decision says:
"The evidence of one man who swears
that plat and notice were posted in a
conspicuous place on the claim, in his
presence, or that ne saw the plat and
notice while remaining posted, is worth
more than the evidence of many wit
nesses who simply swear that they did
not Sc such plat and notice on the
claim. In the case at bar five witness
es testify affirmatively to the posting;
some of whom were present at the time
said plats and notices were posted,
some saw them while remaining posted,
and others were present when said
plat and notices were taken down. All
of these five witnesses identify the
plats and notices offered in evidence as
the same ones they saw posted on the
locations. and all substantially agree
as to the manner of posting, and the
position of each location where plat
and notice were posted.
From this decision protestants ap-
peal, assigning six grounds Of error;
the first three in reference to posting
notices on the claim. and the remain
ing in regard to compliance with the
law In the location Of applicants
claims.
Section '2325 of the revised statutes
provides how patent may be obtained
for a mining claim. and among other
things the applicant must do, Is to post
a copy of the plat. previously made
under the direction of the surveyor
land embraced in such plat previous to
the filing of the application for a pat
ent, and shall file an affidavit Of at
least two persons that such notice has
been duly posted and shall file a copy
of the notice in such land Office. I'D
shall thereupon be entitled to a pa.snt
for the land. in the following manner:
The register of the land office. upon the
filing of such application. plat, field
notes. notices and affidavits, shall
publish a notice that such application
has been made. for the period of so
days. in a newspaper to be by them
designated as published as nearest to
such claim: and he shall also post such
notice in his office for the same period.
The claimant at the time of filing this
application. or at any time thereafter
within the go days of publication, shall
file with the register certificate Of the
United States surveyor general that
$500 worth of labor has been expended
for improvements made upon the claim
by himself or grantors: that the plat is
correct. with such further description
ny cuCn IcAcIcIlCc " SUCH NEUTRAL OD-
1ects OF permanent monuments as shall
identify the claim. and furnish an ac-
curate description. to be incorporated
in the patent. At the expira ton of the
so days OF publication the claimant
shall file his affidavit. showing that
the plat and notice have been posted
in a conspicuous place on the claim
during such period of publication"
Both decisions below find that these
| notices were posted-and / concur in
j., this-the only difference between them
| being that the register and receiver de-
| cided that they were not Conspicuous
ly posted" as required by the statute.
while your officer seems to hold that
they were. The opinion Of the local
office goes into detail as to the posting
on each claim. while your office simply
rests its opinion on the competency OF
the witnesses, apparently without re-
gard TO the locus OF the notices
The return OF the surveyor general
shows that at the time the. survey was
made, Oct. %. 1892. the work on these
lodAz was as follows. on the Prisclila,