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patch for the discovery of lodes and for min-tion to said expenditures have also expending purposes. The certificate also contained ed upon surface work, in improvements and a full description of the boundaries of the expenses, the further sum of not less than tunnel site as claimed.

ten thousand dollars ($10,000). In a general way it may be said that the "It alleges that its work and the work of defenses which were stricken out were aits said grantors in and upon said tunnel priority of right and an estoppel. We quote has been done openly and without conceal. these paragraphs from the answer:

ment; that the same bas been at all times “It further avers that the patent of the prosecuted under the claim of the defendant United States issued for said Ocean Wave and its grantors of the right so to do by and Little Mary lodes and lode mining claims virtue of the location of said tunnel and was issued subject to the act of Congress in tunnel site location, under and by virtue of reference to tunnel rights, and subject to the the laws of the United States, and under the laws of the state of Colorado in reference provisions of $ 2323 of the Revised Statto the right to run tunnels through ground utes of the United States; and that the exthat may be patented, for the purpose of penditures thereof and the developments reaching territory that belongs to tunnel made thereon have been made in compliance owners beyond such patented claims, and with the terms and provisions of, and in subject to the rights which the defendant, reliance upon, said statute. The Uinta Tunnel Mining & Transportation "That the plaintiff, by permitting and alCompany and its grantors, had acquired by lowing this defendant to expend more than reason of the location of said Uinta tunnel, the sum of one hundred and thirty-five thouand in and to any and all lodes, veins, and sand dollars ($135,000) as aforesaid in mining claims that it might cut or discover reaching, uncovering, and discovering said in driving said tunnel, as is guaranteed to ore body, has no right to interfere with the the locator of said tunnel under and by vir- defendant in operating its tunnel over, tue of $ 2323 of the Revised Statutes of the through, and along said pretended Ocean United States (U. S. Comp. Stat. 1901, p. Wave and Little Mary lodes and lode min1426); that the pretended discovery alleged iny claims, but that, on the contrary, the and pretended to have been made in and up- plaintiff, by its conduct and actions in the on said pretended Ocean Wave and Little premises as hereinabove recited and set forth, Mary lodes and lode mining claims, and by has permitted and allowed the defendant to virtue of which the plaintiff claims the right expend said sum of one hundred and thirtyto patent the same under the laws of the five thousand dollars ($135,000), and has United States, was not made until long after permitted and allowed the defendant so to the location of said Uinta tunnel, and at proceed with said tunnel through and across the time said pretended locations were made said pretended Ocean Wave and Little Mary said locators thereof were advised and knew lodes and lode mining claims until the same that said tunnel had been located and had has ripened into such a license and permisbeen and was being prosecuted with due sion as entitled the defendant to use its said diligence and in strict compliance with the tunnel as it penetrates said pretended Ocean terms and conditions of the statutes of the Wave and Little Mary lodes and lode mining United States and of the state of Colorado, claims, and that said license and permission which authorize and provide for the location is such that the defendant cannot be disand prosecution of such tunnels, and which turbed therein." define and determine the rights pertaining It was also alleged that the tunnel had thereto; and that said pretended Ocean been driven some 2,200 feet; that it entered Wave and Little Mary lode mining claims, the ground of the plaintiff at about 550 so far as the same may be now claimed and feet from its portal, and in running through possessed by said plaintiff, were taken and that ground the tunnel was driven 625 feet, held subject to the rights of this defendant leaving the plaintiff's ground at about 1,175 as owner of said Uinta tunnel, located in ac- feet from the portal; that after passing it cordance with $ 2323 of the Revised Stat- the defendant discovered in the tunnel three utes of the United States, and also subject or four blind lodes, which it duly located; to the rights of this defendant to cross said and it was not until after the discovery and claims, and to drive drifts therein, and to location of these lodes that the plaintiff comfollow said lode claims as located by this menced this action. defendant, and to reach lode claims so owned Was there error in striking out these deby this defendant, as hereinbefore and here- fenses? By $ 2319, Rev. Stat. (U. S. Comp. inafter stated.

Stat. 1901, p. 1424), "all valuable mineral “It alleges that it and its grantors have deposits in lands belonging to the United expended in and upon said tunnel the sum States, both surveyed and unsurveyed, are of more than one hundred and twenty-five hereby declared to be free and open to ex. thousand dollars ($125,000), and in addi-'ploration and purchase.” Until, therefore,

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the title to the land passes from the gov- of such tunnel of veins or lodes not appear-
ernment, the minerals therein are "free and ing on the surface, made by other parties
open to exploration and purchase.” A lode after the commencement of the tunnel, and
locator acquires a vested property right by while the same is being prosecuted with rea-
virtue of his location (Clipper Min. Co. v. sonable diligence, shall be invalid; but fail-
Eli Min. & Land Co. 194 U. S. 220, 48 L. ed. ure to prosecute the work on the tunnel for
944, 24 Sup. Ct. Rep. 632); but what is the six months shall be considered as an aban-
extent of that property right? Section 2322 donment of the right to all undiscovered
(U. S. Comp. Stat. 1901, p. 1425) defines veins on the line of such tunnel.”
it as follows: "The locators

shall It does not appear from the answer or tes-
have the exclusive right of possession and timony that the tunnel had reached the
enjoyment of all the surface included within boundaries of the plaintiff's claims prior to
the lines of their locations, and of all veins, the entry or even prior to the patent. For
lodes, and ledges throughout their entire the purpose of this case, therefore, we must
depth, the top or apex of which lies inside assume that, although its line had been
of such surface lines extended downward ver-marked out,-a line extending through the
tically, although such veins, lodes, or ledges plaintiff's ground, yet in fact no work had
may so far depart from a perpendicular in been done within such ground prior to the
their course downward as to extend outside patent.
the vertical side lines of such surface loca- The propositions upon which the plaintiff
tions." The express grant to the locator relies are that discovery is the initial fact;
made by this section includes only the that the patent when issued relates back to
surface and the veins apexing within the that initial fact and confirms all rights as
boundaries of the location. Until, there of that date; that no inquiry is permissible
fore, by entry and payment to the govern- as to the time of that discovery, it being
ment, the equitable title to

title to the ground concluded by the issue of the patent; that passes to the locator, he is in no position such time antedated anything done in or for to question any rights of exploration which the tunnel; that no adverse proceedings were are granted by other provisions of the stat instituted after it had applied for patent, ute. The fee still remains in the govern- and that, therefore, its right became vested ment. By $ 2320 (U. S. Comp. Stat. 1901, in the ground, the same right which any p. 1424) it is provided that "no location other landowner has, and which could not of a mining claim shall be made until be disturbed by the defendant by means of the discovery of the vein or lode within its tunnel. St. Louis Min. & Mill. Co. v. the limits of the claim located.” And by $ Montana Min. Co. 194 U. S. 235, 48 L. ed. 2324 (U. S. Comp. Stat. 1901, p. 1426): 953, 24 Sup. Ct. Rep. 654. “The miners of each mining district may On the other hand, defendant contends make regulations not in conflict with the that, as the first record in any office of the laws of the United States, or with the laws government was the record of the entry on of the state or territory in which the dis- August 5, 1893, the patent issued in an eco trict is situated, governing the location, parte proceeding is conclusive only that manner of recording, amount of work neces- every preceding step, including discovery, sary to hold possession of a mining claim, had then been taken; that it in fact located subject to the following requirements: The its tunnel site prior to any discovery or location must be distinctly marked on the marking on the ground of plaintiff's claim; ground, so that its boundaries can be readily that it was not called upon to adverse plaintraced. All records of mining claims here- tiff's application for a patent, because no after made shall contain the name or names patent is ever issued for a tunnel, and it of the locators, the date of the location, had not then discovered any veins within its and such a description of the claim or claims tunnel ; that plaintiff, with full knowledge located, by reference to some natural object of defendant's tunnel location, permitted the or permanent monument, as will identify the driving of the tunnel through its ground and claim." Tunnel rights are granted by s beyond, at an expenditure of $135,000, and 2323 (U. S. Comp. Stat. p. 1426) which made no objection until the discovery of the reads:

veins beyond its ground, and then, for the “Where a tunnel is run for the develop- first time, and to prevent defendant from de. ment of a vein or lode, or for the discovery veloping such veins, brought this action, and of mines, the owners of such tunnel shall that by such acquiescence it was now estophave the right of possession of all veins or ped to question defendant's use of the tunlodes within three thousand feet from the nel. face of such tunnel on the line thereof, not Obviously the parties divide as to the efpreviously known to exist, discovered in such fect of plaintiff's patent. The circuit court tunnel, to the same extent as if discovered held with the plaintiff, the court of appeals from the surface; and locations on the line' with the defendant. It may be conceded

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that a patent is conclusive that the patentee marking on the surface of the boundaries
has done all required by law as a condition of the claim. By § 2324 (U. S. Comp. Stat.
of the issue; that it relates to the initiation 1901, p. 1426), however, Congress recog-
of the patentee's right, and cuts off all in- nized the validity of any regulations made
tervening claims. It may also be conceded by the miners of any mining district not in
that discovery of mineral is the initial fact. conflict with the laws of the United States
But when did the initial fact take place? or the laws of the state or territory within
Are all other parties concluded by the loca- | which the district is situated. This is held
tor's unverified assertion of the date or the to authorize legislation by the state. Thus,
acceptance by the government of his asser- in Bell v. 1/ cagher, 104 U. S. 279, 284, 26
tion as suficient, with other matters, to L. ed. 735, 737, it was said:
justify the issue of a patent? Undoubtedly, A location is not made by taking pos-
so far as the question of time is essential session alone, but by working on the ground,
to the right, the patent is conclusive, but recording, and doing whatever else is re-
is it beyond that?

quired for that purpose by the acts of Con-
In order to reach a clear understanding of gress and the local laws and regulations."
the question it seems necessary to consider In Kendall v. San Juan Silver Min. Co.
the legislation. Three things are provided 144 U. S. 658, 664, 36 L. ed. 583, 585, 12
for: discovery, location, and patent. The Sup. Ct. Rep. 779, 781, is this language:
first is the primary, the initial fact. The “Section 2324 of the Revised Statutes (U.
others are dependent upon it, and are the S. Comp. Stat. 1901, p. 1426) makes the
machinery devised by Congress for securing manner of locating mining claims, and re-
to the discoverer of mineral the full benefit cording them subject to the laws of the
of his discovery. Chap. 6 of Title 32, Rev. state or territory, and the regulations of
Stat., is devoted to the subject of “Mineral each mining district, when they are not in
Lands and Mining Resources.” The first conflict with the laws of the United States."
section, 2318 (U. S. Comp. Stat. 1901, p. See also Erhardt v. Boaro, 113 U. S. 527,
1423), reserves mineral lands for sale, ex- 533, 534, 535, 28 L, ed. 1113, 1115, 1116, 5
cept as expressly directed. The next pro- Sup. Ct. Rep. 560; Butte City Water Co.
vides that all valuable mineral deposits in v. Baker, 196 U. S. 119, 25 Sup. Ct. Rep.
government lands shall be free and open to 221, 49 L. ed. 409.
exploration and purchase, and the lands in And many territories and states (Colora-
which they are found to occupation and pur- do among the number) have made provisions
chase. In the next it is declared that no lo- in respect to the location other than the
cation of a mining claim shall be made un- mere marking on the ground of the bound-
til the discovery of the vein or lode within aries of the claim. So, before a location in
the limits of the claim. The whole scope of those states is perfected, all the provisions
the chapter is the acquisition of title from of the state statute as well as of the Federal
the United States to mines and mineral must be complied with, for location there
lands, the discovery of the mineral being, as does not consist in a single act. In Mor-
stated, the initial fact. Without that no rison, Mining Rights, ilth ed. p. 37, the
rights can be acquired. As said by Lindley, author, having primarily reference to the
in his work on Mines, 2d ed., vol. 1, § 335: laws of Colorado, says:

“Discovery, in all ages and all countries, "The location of a lode consists in dehas been regarded as conferring rights or fining its position and boundaries, and in claims to reward. Gamboa, who represent doing such acts as indicate and publish the ed the general thought of his age on this intention to occupy and hold it under the subject, was of the opinion that the discov- license of the United States. The formal erer of mines was even more worthy of re

1, the location ward than the inventor of a useful art. parts of location include:

notice at discovery; 2, the discovery shaft; Hence, in the mining laws of all civilized countries the great consideration for grant- 3, the boundary stakes.”

In St. Louis Smelting & Ref. Co. v. Kemp, ing mines to individuals is discovery. 'Rewards so bestowed,' says Gamboa, 'besides 104 U. S. 636, 649, 26 L. ed. 875, 879, Justice being a proper return for the labor and Field, referring to the fact that the terms anxiety of the discoverers, have the further "location” and “mining claim” are often effect of stimulating others to search for indiscriminately used to denote the same veins and mines, on which the general pros- thing, says by way of definition: perity of the state depends.

“A mining claim is a parcel of land conLocation is the act or series of acts by taining precious metal in its soil or rock. which the right of exclusive possession of A location is the act of appropriating such mineral veins and the surface of mineral parcel, according to certain established lands is vested in the locator. For this the rules." only requirement made by Congress is the See also Northern P. R. Oo. 1. Sanders,

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was

1 C. C. A. 192, 7 U. S. App. 47, 49 Fed. | precede the marking; and if both are com129, 135.

pleted before the rights of others intervene, The patent is the instrument by which the earlier act will inure to the benefit of the fee-simple title to the mining claim is the locator. But if the boundaries are granted.

marked before discovery, the location will Returning now to the matter of location, date from the time discovery is made." the Colorado statutes in substance require In 1 Snyder, Mines, $ 354, it is said:

“1. To place at the point of discovery, on "While the general rule is, as stated the surface, a notice containing the name elsewhere in the foregoing sections, that a of the lode, the name of the locator, and the location must rest upon a valid discovery, date of the discovery.

yet a location otherwise good, with a discov“2. Within sixty days from the discovery, ery made after location, and before the into sink a discovery shaft 10 feet deep, show- tervention of adverse claims or the creation ing a well-defined crevice.

of adverse rights, will validate the location “3. To mark the surface boundaries by six from the date of discovery, and generally posts, one at each corner and one at the from the first act towards claim and apcenter of each side line, hewed or marked on propriation,—this by relation.” the side or sides in towards the claim. In Morrison' Mining Rights, 11th ed. p.

“4. The disclosure of the lode in an open 32: cut, cross cut, or tunnel suffices instead of “If a location be made before discovery, a 10-foot shaft.

but is followed by a discovery in the discov“5. Within three months from date of dis- ery shaft, before any adverse rights intercovery he must file a location certificate with vene, such subsequent discovery cures the the county recorder giving a proper descrip- original defect and the claim is valid.” tion of the claim, and containing also the In Re Mitchell, 2 Land Dec. 752, it was name of the lode, the name of the locator, held by Commissioner McFarland that, "al. the date of the location, the number of feet though prior to location no discovery of in length on each side of the center of the mineral made within the

the ground discovery shaft, and the general course of claimed, upon a subsequent discovery prior the lode.” Morrison, Mining Rights, 11th to application for patent the location became ed. p. 59.

good and sufficient, in the absence of any The issue of a patent for a lode claim in adverse rights.” Colorado is therefore not only a conclusive In Reins v. Raunheim, 28 Land Dec. 526, adjudication of the fact of the discovery of 529, Secretary Hitchcock declared that "it the mineral vein, but also of compliance is immaterial whether the discovery OCwith these several provisions of its statutes. curred before or after the location, if it ocThe supreme court of that state has decided curred before the rights of others intervened. that the order is not essential, providing Erwin v. Perego, 35 C. C. A. 482, 93 Fed. no intervening rights have accrued. In 608.” Brewster v. Shoemaker, 28 Colo. 176, 180, 53 Reference is made to the statement of SecL. R. A. 793, 798, 89 Am. St. Rep. 188, 190, retary Smith in Etling v. Potter, 17 Land -63 Pac. 309, 310, it said:

Dec. 424; 426, as though that announced a "The order of time in which these several different conclusion, that "a location ceracts are performed is not of the essence of tificate is but one step—the last onein the requirements, and it is immaterial that the location of a mining claim.” But a locathe discovery was made subsequent to the tion certificate is simply a certificate re-completion of the acts of location, provided, quired by the local statute or custom that only, all the necessary acts are done before some things have been done, and, of course, intervening rights of third parties accrue. it must come after those things have been All these other steps having been taken be done. fore a valid discovery, and a valid discovery Again, in the same volume, pp. 545 and then following, it would be a useless and 546 (Northern P. R. Co. v. Marshall), he idle ceremony, which the law does not re- said: quire, for the locators again to locate their “In the location of a mineral claim, placclaim and refile their location certificate, or er or lode, the first requirement of the law file a new one."

is a discovery. $$ 2319, 2320 Rev. Stat. And that has been the general doctrine. U. S. Comp. Stat. 1901, p. 1424. All rights In 1 Lindley, Mines, 2d ed. $ 330, the au- inuring to the benefit of the locators are

based upon this initial act. Erhardt V. “The order in which the several acts re- Boaro, 113 U. S. 537, 28 L. ed. 1116, 5 Sup. quired by law are to be performed is non-ct. Rep. 565; United States v. Iron Silver essential, in the absence of intervening Min. Co. 128 U. S. 673, 32 L. ed. 571, 9 Sup. rights. The marking of the boundaries may ct. Rep. 195; O'Reilly v. Campbell, 116 U. precede the discovery, or the discovery may's. 418, 29 L. ed. 669, 6 Sup. Ct. Rep. 421.

thor says:

When, therefore, a legal location has been But what is the meaning of the statute? made on land returned as agricultural, the Its language is “no location of a mining slight presumption in favor of the return of claim shall be made until the discovery of the surveyor general is, ipso facto, overcome, the vein or lode within the limits of the and the burden of proof shifts to the party claim located.”

claim located.” Does that require that a attacking such mineral entry. By such dis- discovery must be made before any marking covery and location it is demonstrated that on the ground, especially when, as under the return was erroneous, and it would be the Colorado statutes, several other steps trifling with physical facts to put the onus in the process of location are prescribed, or on the locator to present further evidence does it mean that no location shall be con- . until it is shown that, as a matter of fact, sidered as complete until there has been a he had no discovery."

discovery? Bearing in mind that the prin. But the question he was considering was cipal thought of the chapter is exploration simply as to the burden of proof between one and appropriation of mineral, does it mean claiming land returned as agricultural land anything more than that the fact of disand one claiming a portion thereof, as an ap- covery shall exist prior to the vesting of parently legal location of a mineral claim. that right of exclusive possession which at

In North Noonday Min. Co. v. Orient Min. tends a valid location ? Co. 6 Sawy. 299. I Fed. 522, 531, Judge This may be looked at in another aspect. Sawyer, in charging the jury, said:

Suppose a discovery is not made before the “I instruct you further, that if a party marking on the ground and posting of noshould make a location in all other respects tice, but is then made, and it and all other regular, and in accordance with the laws, statutory provisions are complied with beand the rules, regulations, and customs in fore the entry, which is an application for force at the place at the time, upon a sup- the purchase of the ground,-of what beneposed vein, before discovering the true vein fit would it be to the government to require or lode, and should do sufficient work to hold the discoverer to repeat the marking on the the claim, and after such location should dis- ground, the posting of notice, and other acts cover the vein or lode within the limits of requisite to perfect a location ?

If everythe claim located, before any other party thing has been done which, under the law, had acquired any rights therein, from the ought to be done to entitle the party to purdate of his discovery his claim would be chase the ground, wherein is the government good to the limits of his claim, and the lo- prejudiced if the precise order of those acts cation valid."

is not followed? Or, to go a step farther, To the same effect was the charge of the suppose, on an application for a patent, same judge in Jupiter Min. Co. v. Bodie an adverse suit is instituted, and on the Consol. Min. Co. 7 Sawy. 96, 11 Fed. 666, trial it appeared that the plaintiff in that 676.

suit had made a discovery and taken all the In Cedar Canyon Consol. Min. Co. v. Yar- steps necessary for a location in the statuwood, 27 Wash. 271, 91 Am. St. Rep. 841, tory order, although not until after the ap67 Pac. 749, the supreme court of Wash- plicant for the patent had done everything ington ruled that

required by law, would there be any justice "In the absence of intervening rights, the in sustaining the adverse suit, and awarding fact that mineral is not discovered on a the property to the plaintiff therein, on the claim until after the notice of location is ground that the applicant had not made any posted and the boundary marked is imma- discovery until the day after his marking on terial; and, where the discovery is the re- the ground, and so the discovery did not sult of work subsequently done by the lo- precede the location ? cator, his possessory rights under his loca

These suggestions add strength to the contion are complete from the date of such dis-curring opinion of three leading commentacovery. Nevada Sierra Oil Co. v. Home Oil tors on mining law, the general trend of the Co. 98 Fed. 673; Erwin v. Perego, 35 C. C. rulings of the department and decisions of A. 482, 93 Fed. 608; Jupiter Min. Co. v. Bodie Consol. Min. Co. 7 Sawy, 96, 11 Fed. the courts, to the effect that the order in

which the several acts are done is not es666; 1 Lindley, Mines, $ 335, and cases cited.”

sential, except so far as one is dependent on See especially Erwin v. Perego, cited in another. Doubtless a locator does not acthis quotation, decided by the court of ap- quire the right of exclusive possession unpeals for the eighth circuit. Tending in less he has made a valid location, and disthe same direction are Thompson v. Spray, covery is essential to its validity; but if 72 Cal. 528, 533, 14 Pac. 182; Gregory v. all the acts prescribed by law are done, inPershbaker, 73 Cal. 109, 118, 14 Pac. 401;cluding a discovery, is it not sacrificing subTuolumne Consol. Min. Co. v. Maier, 134 stance to form to hold that the order of Cal. 583, 585, 66 Pac. 863.

those acts is essential to the creation of the

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