BASKIN, C. J.,
after stating the facts, delivered the opinion of the court.
The refusal to permit the certified copy of the location notice of the Yes You Do, and the deed offered in connection therewith, to be introduced in evidence, and the rejection of the evidence relating to the Levi P. and Yeta mining claims, is assigned as error.
Section 452, Rev. St. U. S. (U. S. Comp. St. 1901, 1 p. 257), provides: “The officers, clerks, and employees in the General Land Office are prohibited from directly or indirectly purchasing or becoming interested in the purchase of any of the public land; and any person who violates this section shall forthwith be removed from his office. ’ ’ ' Subsequent to the enactment of this section, section 2319, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1424), was passed, and is as follows: “All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining [17]*17districts, so far as the same are not inconsistent -with the laws.of the United States.” The former section has been retained in all of the revisions of said statutes made since its enactment. These sections are therefore in pari materia, and must be construed together, and, if possible, made to harmonize, and not to violate, the general public policy which it is evident the former was enacted to prevent. 1 Kent, Comm. (13 Ed.), p. 464;
Manuel v. Manuel, 13. Ohio St. 458, 464, 465. The 2 presumption is that Congress, when the latter section was passed, was aware of the existence of the former, and acted in view of that fact. As the former section has not in terms been repealed, but has been retained in each of the revised editions of the United States statutes, it must, be presumed that Congress intended it to- remain in full force, notwithstanding the provisions of the latter section; or, in other words, it was the intention of Congress to prohibit, on the ground of public policy, the officers, clerks, and employees in the General Land Office from acquiring, directly or indirectly, an interest in the purchase from the Government of any of the public land of the United States.
It is clear from the testimony of J. Fewson Smith, Jr., in this case, that his right to the unpaid consideration for the conveyance of the Yes You Do was wholly dependent upon the purchase or entry of the same, and to that extent he was interested in the entry — or in the purchase, which is the same as an interest in the entry-sought by Lavagnino. One dollar is the only consideration actually paid by Lavagnino to Smith. Both of the parties at the time anticipated litigation. . Smith, in addition to his testimony before referred to, stated: “Somebody would have to stand the expense of the litigation if there was iany, and, since I could not make a sale to Mr. Lavagnino out and out, I just let him take it at his own terms, with the understanding that if the claim was given to him clear, that is, if there was litigation through any source and he got the claim through [18]*18for patent clear, then I was to receive, in addition to what I got that day, a certain sum of money. This arrangement was in 1898,, between the time of making1 the location and the time of entering the protest. It would be somewhere about the middle of the summer, I should think. I received one dollar in cash. That was to bind the bargain. If he doesn’t get the ground I get nothing further. ’ ’
Before making the adverse claim and bringing this suit, Lavagnino knew that Smith was a deputy United States mineral surveyor, for Smith, as such, made the survey and plat filed in the land office with the adverse claim; so that, if section 452 includes deputy mineral surveyors, Lavagnino, before expending any sum except one dollar, was at that time advised of the fact, if he was not before, that his agreement with Smith was in violation of the provisions of said section, and that the conveyance of the Yes You Do for that reason was invalid. The latest decisions of the Secretary of the Interior hold that under section 452, Rev. St. U. S., “a deputy mineral surveyor, while holding -such office, is disqualified as a mineral entryman.” Floyd v. Montgomery, 26 Land Dec. Dept. Int. 122; Prank A. Maxwell, 29 Land Dec.. Dept. Int. 76. Our attention has not been called to any decision of a court touching 3 the question, and while the decisions of the Land Department, on matters of law, are not binding upon the courts, they should not be overruled except when they are clearly erroneous. Hastings, etc., Co. v. Whitney, 132 U. S. 357, 366, 10 Sup. Ct. 112, 33 L. Ed. 363, and cases there cited. We think that the 4 section in question includes mineral surveyors, and prohibits them, as held by the Land Department, from entering any of the public lands while they are such deputies, and also from directly or indirectly acquiring any interest in the purchase from the 5 Government of the same. It follows that J. Fewson Smith, Jr., while he was a deputy mineral surveyor, was prohibited by said section from [19]*19entering a mining claim or directly or indirectly acquiring' any right or interest in the purchase from the Government of snch a claim. He was also prohibited at that time from doing any of the acts upon the performance of which, under the provisions of the mining law of 1872, the right of making an entry or purchase from the Government depends, and that his location of the Yes You Do was therefore void, and Lavagnino acquired no rights under the deed from him to the same.
The failure of the plaintiff to show, in chief, any right to the premises in controversy, disclosed the fact that he was “a stranger to the title” of the premises in dispute, and that a nonsuit could, on motion, have been properly granted. So that a failure to establish the defendants’ claim could in no way benefit him or validate his alleged title to the Yes You Do. Therefore the plaintiff had no more interest -in or right to further contest the defendants5 claim, on the ground that the Levi P. and Yeta were valid and subsisting claims, than the said Andrew P. Mayberry himself or any other stranger had.
Section 2325, Rev. St. U. S. (U. S. Comp. St. 1901, 6 p. 1429), provides that: “If no adverse claim shall have been filed with the register and the receiver of the proper landoffice at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter.”
In the case of The Eureka Min. Co. v. The Richmond, 4 Sawy. 302, Fed. Cas. No. 4548, it was held, in the opinion delivered by Mr. Justice Field, that “under the mining act of 1872, where one is seeking a patent for his mining location, and gives the prescribed notice, any other claimant of an unpatented location objecting [20]
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BASKIN, C. J.,
after stating the facts, delivered the opinion of the court.
The refusal to permit the certified copy of the location notice of the Yes You Do, and the deed offered in connection therewith, to be introduced in evidence, and the rejection of the evidence relating to the Levi P. and Yeta mining claims, is assigned as error.
Section 452, Rev. St. U. S. (U. S. Comp. St. 1901, 1 p. 257), provides: “The officers, clerks, and employees in the General Land Office are prohibited from directly or indirectly purchasing or becoming interested in the purchase of any of the public land; and any person who violates this section shall forthwith be removed from his office. ’ ’ ' Subsequent to the enactment of this section, section 2319, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1424), was passed, and is as follows: “All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining [17]*17districts, so far as the same are not inconsistent -with the laws.of the United States.” The former section has been retained in all of the revisions of said statutes made since its enactment. These sections are therefore in pari materia, and must be construed together, and, if possible, made to harmonize, and not to violate, the general public policy which it is evident the former was enacted to prevent. 1 Kent, Comm. (13 Ed.), p. 464;
Manuel v. Manuel, 13. Ohio St. 458, 464, 465. The 2 presumption is that Congress, when the latter section was passed, was aware of the existence of the former, and acted in view of that fact. As the former section has not in terms been repealed, but has been retained in each of the revised editions of the United States statutes, it must, be presumed that Congress intended it to- remain in full force, notwithstanding the provisions of the latter section; or, in other words, it was the intention of Congress to prohibit, on the ground of public policy, the officers, clerks, and employees in the General Land Office from acquiring, directly or indirectly, an interest in the purchase from the Government of any of the public land of the United States.
It is clear from the testimony of J. Fewson Smith, Jr., in this case, that his right to the unpaid consideration for the conveyance of the Yes You Do was wholly dependent upon the purchase or entry of the same, and to that extent he was interested in the entry — or in the purchase, which is the same as an interest in the entry-sought by Lavagnino. One dollar is the only consideration actually paid by Lavagnino to Smith. Both of the parties at the time anticipated litigation. . Smith, in addition to his testimony before referred to, stated: “Somebody would have to stand the expense of the litigation if there was iany, and, since I could not make a sale to Mr. Lavagnino out and out, I just let him take it at his own terms, with the understanding that if the claim was given to him clear, that is, if there was litigation through any source and he got the claim through [18]*18for patent clear, then I was to receive, in addition to what I got that day, a certain sum of money. This arrangement was in 1898,, between the time of making1 the location and the time of entering the protest. It would be somewhere about the middle of the summer, I should think. I received one dollar in cash. That was to bind the bargain. If he doesn’t get the ground I get nothing further. ’ ’
Before making the adverse claim and bringing this suit, Lavagnino knew that Smith was a deputy United States mineral surveyor, for Smith, as such, made the survey and plat filed in the land office with the adverse claim; so that, if section 452 includes deputy mineral surveyors, Lavagnino, before expending any sum except one dollar, was at that time advised of the fact, if he was not before, that his agreement with Smith was in violation of the provisions of said section, and that the conveyance of the Yes You Do for that reason was invalid. The latest decisions of the Secretary of the Interior hold that under section 452, Rev. St. U. S., “a deputy mineral surveyor, while holding -such office, is disqualified as a mineral entryman.” Floyd v. Montgomery, 26 Land Dec. Dept. Int. 122; Prank A. Maxwell, 29 Land Dec.. Dept. Int. 76. Our attention has not been called to any decision of a court touching 3 the question, and while the decisions of the Land Department, on matters of law, are not binding upon the courts, they should not be overruled except when they are clearly erroneous. Hastings, etc., Co. v. Whitney, 132 U. S. 357, 366, 10 Sup. Ct. 112, 33 L. Ed. 363, and cases there cited. We think that the 4 section in question includes mineral surveyors, and prohibits them, as held by the Land Department, from entering any of the public lands while they are such deputies, and also from directly or indirectly acquiring any interest in the purchase from the 5 Government of the same. It follows that J. Fewson Smith, Jr., while he was a deputy mineral surveyor, was prohibited by said section from [19]*19entering a mining claim or directly or indirectly acquiring' any right or interest in the purchase from the Government of snch a claim. He was also prohibited at that time from doing any of the acts upon the performance of which, under the provisions of the mining law of 1872, the right of making an entry or purchase from the Government depends, and that his location of the Yes You Do was therefore void, and Lavagnino acquired no rights under the deed from him to the same.
The failure of the plaintiff to show, in chief, any right to the premises in controversy, disclosed the fact that he was “a stranger to the title” of the premises in dispute, and that a nonsuit could, on motion, have been properly granted. So that a failure to establish the defendants’ claim could in no way benefit him or validate his alleged title to the Yes You Do. Therefore the plaintiff had no more interest -in or right to further contest the defendants5 claim, on the ground that the Levi P. and Yeta were valid and subsisting claims, than the said Andrew P. Mayberry himself or any other stranger had.
Section 2325, Rev. St. U. S. (U. S. Comp. St. 1901, 6 p. 1429), provides that: “If no adverse claim shall have been filed with the register and the receiver of the proper landoffice at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter.”
In the case of The Eureka Min. Co. v. The Richmond, 4 Sawy. 302, Fed. Cas. No. 4548, it was held, in the opinion delivered by Mr. Justice Field, that “under the mining act of 1872, where one is seeking a patent for his mining location, and gives the prescribed notice, any other claimant of an unpatented location objecting [20]*20to tb.e patent on account of extent or form, or because of asserted prior location, must come forward with Ms objections ,and present them, or he will be afterwards precluded from objecting to the issue of the patent.” The rule thus laid down has been adhered to ever since its announcement, both by the courts and the Land Department.
In the case of Wight v. Dubois (C. C.), 21 Fed. 693-696, Mr. Justice Brewer, in the opinion, summed up the propositions decided therein as follows: ‘ ‘ First, the Government, as a landowner, offers its lands for sale upon certain prescribed conditions, compliance with which is a matter of settlement between the owner and purchaser alone, and with which no stranger to the title can interfere. Second, publication of notice is process bringing all adverse claimants into court, and if no adverse claims are presented it is conclusively presumed that none exist, and that no third parties have any rights or equities in the land. Third, thereafter the only right or privilege remaining to any third parties is that of protest or objection filed with the Land Department, and cognizable there only.”
In Golden Reward Mining Co. v. Buxton Min. Co. (C. C.) 79 Fed. 868-874, the same distinguished judge, after quoting section 2325 of the Bevised Statutes, said: “The expression tit shall be assumed’ must be construed to mean ‘conclusively assumed,’ as any other construction would defeat the object of the statute.”
In Burnside et al. v. O’Connor et al., 30 Land Dec. Dept. Int. 67-70, Secretary Hitchcock, after quoting the same section, said: “The Hibernia having failed to file an adverse claim against the Mary Navin during the latter’s period of publication, it must be assumed that no such adverse claim exists, and the department cannot now hear any objection from the Hibernia claimants to the issuance of patent for the Mary Navin, based merely on an assertion of prior right to a portion of the land included in the Mary Navin entry. The provisions of the statute are clear, and as the Hibernia claimants [21]*21have, by their own negligence, placed themselves in snch a position relative to the Mary Navin application that it must be assumed they have no adverse claim against said application, it is useless to suspend the Mary Navin entry to await the result of the suit by the Mary Navin against the Hibernia.”
In Branagaa v. Dulaney, 2 Land Dec. Dept. Int. 744, Secretary Teller said: “It has been the practice of the land office not to inquire as to the status of the original or prior location when the discovery is made within the boundaries thereof, unless an application for patent has been made for such original or prior location. If the owner of the original or prior location neglects to adverse the application for a patent to the junior location, it must be assumed, under the provisions of section 2325 of the Revised Statutes, that the claimant of such junior location is entitled to a patent as against the claims of the prior locator.”
In the Matter of the Nevada Lode, 16 Land Dec. Dept. Int. 532, it was held that “A charge of non-compliance with law against a mineral entry made by a protestant may properly form the basis of a hearing, but the protestant in such a case is not entitled to set up his own claim to the land. ’ ’
In American Consol. M. & M. Co. v. DeWitt, 26 Land Dec. Dept. Int. 580, it appears that De Witt made application for a patent for the Maryland mining claim, and that the American company afterwards protested, and one of the grounds of the protest was that the “Maryland was not a valid location, in that the discovery therein was on the Orbit claim, a prior and subsisting location, and not upon unappropriated public land; that the Orbit vein was the only one discovered within the limits of the Maryland.” Secretary Bliss, in ruling-adversely to the protestant, said: “Whether the ground which includes the Maryland discovery is a part of the Maryland, or a part of the Orbit, and whether the Maryland is the superior claim to the ground in conflict, are questions which were open to determination [22]*22.by adverse proceedings in the local courts, \and which are now determined adversely to protestante contention, by reason of its failure to' adverse the Maryland’s application (section 2325).”
The evident intention of the adverse proceedings 7 authorized by section 2326 of the Revised Statutes (U. S. Comp. St. 1901, p. 1430) is not to determine any of the rights of the United States, or the rights of the contestants to a patent, but, in aid of and for the information of the Land Department, to determine, as between the litigants, the right to the possession of the mining claim in dispute.
In Doe v. Waterloo Min. Co., 17 C. C. A. 190, 70 Fed. 455-462, after quoting section 2326 of the Revised Statutes, the court said: ‘ ‘ Thére is no authority in the statute to find against the United States, and that the party so establishing title is entitled to a patent from the United States. The United States is not named as a party. The suit does not purport to be one against the United States. No authority is given by the statute to sue the United States in such a matter. The application for a patent for mineral land is made to the Land Department of the United States. Ultimately that department must determine the right to the patent. The trial of the right to the possession of a given tract of mineral land is a proceeding in aid of that department. It was not intended that when this issue.was presented to a. court it should operate as a transfer of the whole case made by the application, and that thereafter the Land Department would have nothing to do but to carry into effect the judgment of the court. A state court of general jurisdiction has the power to determine this issue, and such courts are often called upon to try causes arising under the said section 2326. Can it be supposed that it was intended that under the said statute such a court would have the power to determine whether or not the United States should issue a patent to any applicants?' The power to sue the United States in a State court should rest upon some positive statute. > It cannot be [23]*23inferred from sncbi a statute as the. one in question.” To the same effect see Wight v. Dubois (C. 0.), 21 Fed. 694.
We think it is clear, both from the language of the 8 sections of the Revised Statutes referred to and the authorities cited, that it must, as stated by Mr. Justice Brewer, he conclusively presumed that Andrew P. Mayberry, as he failed to make any adverse claim, had none, and, as the plaintiff failed to show any right to the disputed premises, he became a stranger to the title, and thereafter had no more right than any other shram ger to further contest the defendants’ claim. While Mayberry has the right, like any stranger, to protest, he cannot do so on the basis of any rights he may have had in either the Levi P. or Yeta mining claims. It follows that he conclusively waived his right to do so by failing to file an adverse claim, and that the plaintiff in this case, and all other strangers to the title, are likewise precluded from protesting on like grounds.
The trial court found that “on or about the 1st 9 day of January, 1889, one Edmund H. Uhlig, then and there a citizen of the United States, entered upon the unoccupied and unappropriated mineral lands of the United States in West Mountain mining district, Salt Lake county, State of Utah, and, having discovered thereon a lode of mineral-bearing rock in place, bearing lead, iron, silver, and other minerals, did then and there locate the same as the ‘Uhlig No. 1’ and 'Uhlig No. 2’ lode mining claims, by marking the boundaries thereof upon the ground by suitable monuments, so that the boundaries thereof could be readily traced, and by posting at the points of discovery upon said mining claims, respectively, notices of location, describing the same by reference to natural objects and permanent monuments; that thereafter he caused copies of said notices of location, respectively, to be filed and recorded in the office of the district recorder of said West Mountain mining district. That thereafter the said Edmund H. Uhlig and the defendant, the St. Joe Mining Company re[24]*24mained in possession of said mining claims, working and developing the same, and causing to be done thereon and for the benefit of said claims, in each and every year np to and including the year 1900, the annual assessment work required by the laws of the United States. ’ ’
The application for a patent for the Uhlig Nos. 1 and 2 was made on August 24, 1898. The Yes You Do was located on the 1st day of January, 1898, eight years after the location of the Uhlig Nos. 1 and 2.
Section 2332, Eev. St. (U. S. Comp. St; 1901, p. 1433), provides that “where such person or association, they and their grantors, have held and worked their claims for a period equal to the time prescribed by the statute of limitations for mining claims of the State and Territory where the same may be situated, evidence of such possession and working of the claims for such period shall be sufficient to establish a right to a patent thereto under this chapter, in the absence of any adverse claim; but nothing in this chapter shall be deemed to impair any lien which may have attached in any way whatever to any mining claim or property attached prior to the issuance of a patent. ’ ’
Section 2997, subd. 2, Comp. Laws Utah 1888, provides that the words ‘ ‘ real property as used in the Code of Civil Procedure, unless otherwise apparent from the context, are co-extensive with lands, tenements and hereditaments, water rights, and possessory rights and claims.”
The Territorial Supreme Court, in Houtz v. 10 Gisborn, 1 Utah 173-176, held that, under said section, mining claims are real property and pass by deed. There are numerous authorities which hold (without regard to statutory provision) that mining claims are real estate. 1 Lindley on Mines, sec. 535; Barringer & Adams Law of Mining, p. 568 et seq.; Aspen Min. & S. Co. v. Rucker (C. C.) 28 Fed. 222, and cases cited; Harris v. Equator Min. Co. (C. C.) 8 Fed. 863; Hughes v. Devlin, 23 Cal. 506; Roseville Min. Co. v. Iowa Min. [25]*25Co., 15 Colo. 29, 24 Pac. 920, 22 Am. St. Rep. 373; McFeters v. Pierson, 15 Colo. 201, 24 Pac. 1076, 22 Am. St. Rep. 388.
Section 2332 is applicable to lode mining claims. 2 Lindley on Mines, sec. 688; Harris v. Equator Min. Co. (C. C.) 8 Fed, 863; Altoona Min. Co. v. Integral Min. Co. 114 Cal. 100, 45 Pac. 1047; Belk v. Meagher, 104 U. S. 279-287, 26 L. Ed. 735. In the last-mentioned case (page 287) after quoting section 2332, the court, speaking through Mr. Chief Justice Waite, said: “Under the provisions of the Revised Statutes relied on, Belk could not get a patent for the claim he attempted to locate, unless he secured what is hei*efaáde the equivalent of a valid location, by actually holding and working for the requisite time. If he actually held possession and worked the claim long enough, and kept all others out, his right to a patent would be complete.” In the case of Altoona Quicksilver Min. Co. v. Mining Co., 114 Cal. 105, 45 Pac. 1048, Mr. Justice Temple, in connection with said section, said: “It must therefore follow that where such possession has continued for five years before the adverse right exists, it is equivalent to a location under the laws of Congress, ” and in support thereof cites Harris v. Equator Min. Co., supra, Belk v. Meagher, supra, and Anthony v. Jillson, 83 Cal. 296, 23 Pac. 419.
Subdivision 2, see. 2997, Comp. Laws 1888, is still in Rev. St. 1898, subd. 10, sec. 2498.
A mining claim being a possessory right, it is real estate under the provisions of the statutes of Utah before referred to, and any claim which Mayberry might have had, as he failed to institute a suit to recover the same within seven years after the possession of the Uhlig Nos. 1 and 2, as found by the trial court, began, ■was barred by section 2859, of the Revised Statutes of Utah, which is as follows: “No action for the recovery of real property, or for the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, grantor, or predecessor was seized or possessed [26]*26of the property in question within seven years before the commencement of the action.” It was also waived by his failure to adverse the application for a patent of the Uhlig Nos. 1 and 2. In view of these facts, the plaintiff, even if J. Pewson Smith, Jr., had not been a deputy United States mineral surveyor, as the location of the Yes You Do was not made until eight years after the said possession of the Uhlig Nos. 1 and 2 was begun, could not avail himself of any rights which the said Mayberry may have had.
The objection to' the admission in evidence of the certified copy of the notice of location of the Yes You Do and the deed to Lavagnino, offered in connection therewith, and the objection to the evidence relating to the Levi P. and Veta mining claims were properly sustained.
The decree of the court below is affirmed, with costs.
BARTCH, J., and HART, District Judge, concur.