DISCOVERY AND LOCATION OF LODES BEFORE THE ACTS NOW IN FORCE.

Shaft and Stake Under Colorado Act of 1866.-3 2.-All lodes or veins of gold, silver, or other valuable minerals, which may hereafter be discovered, shall be marked at the point of discovery by a substantial stake, post or stone monument, having inscribed thereon the name of the discoverer or discoverers, and the name of the lode or vein, with date of discovery; and the discoverer or discoverers shall, before recording, excavate thereon a shaft at least ten feet deep, or deeper, if necessary, to find a well defined crevice, or forfeit all right and title he or they may have acquired by virtue of such discovery.-Feb. 9, 1866.

Mode of Location Not Strict.-Prior to 1866 there was no United States law regulating lode locations. Nor did that law state any definite formula_further than to limit the extreme width and length. Nor were the requirements of the State or Territorial Legislatures usually specific. Either by statute or by district rule a discovery was always required and a notice at the point of discovery, and in many districts such a staking as would indicate the extreme points to which the claim extended. In 1866 by statute in Colorado a location stake and a ten foot discovery shaft were required. In other States and Territories even these initial and essential points were left entirely to district regulations.

In all cases the actual disclosure of the vein, and not merely the float or indication of the vein, was required, at least with regard to the discovery claim; and the stake was required to give the name of the lode and its locator with usually the date of discovery and the number of feet in each direction. Sometimes each separate claim was measured and staked off.

That some act of location was required, has never been disputed. But in the absence of district rules,

what would amount to a sufficient location can only be defined as such acts of appropriation as would amount to a declaration that the locator had appropriated the ground, and be sufficient notice to other prospectors that he had so appropriated it.—Hess v. Winder, 12 M. R. 217; English v. Johnson, Id. 203; Attwood v. Fricot, 2 M. R. 305; Gleeson v. Martin White Co. 9 M. R. 429; Gonu v. Russell, 12 M. R. 630; U. S. v. Castillero, 2 Black, 191.

In the case of Cons. Rep. Co. v. Lebanon Co. 9 Colo. 343, it was ruled that the posting of the notice and the recording of certificate not followed by development or representation, would not hold the claim against a subsequent location. See also Becker v. Pugh, Id. 589.

DISCOVERY AND LOCATION UNDER LAWS NOW IN FORCE.

Discovery Required.-R. S. 2320. * * * No location of a mining-claim shall be made until the discovery of the vein or lode within the limits of the claim located. * * -Sec. 2, A. C. May 10, 1872.

Staking and Record.-R. S. 2 2324.-The miners of each mining-district may make regulations not in conflict with the laws of the United States, or with the laws of the State or Territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining-claim, subject to the following requirements: The location must be distinctly marked on the ground so that its boundaries can be readily traced. * * * -Sec. 5, A. C. May 10, 1872. Discovery Shaft, Notice and Stakes in Colorado.-M. A. S. ? 3152.-Before filing such location certificate the discoverer shall locate his claim by:

First-Sinking a discovery shaft upon the lode to the depth of at least ten feet from the lowest part of the rim of such shaft at the surface, or deeper, if necessary to show a well defined crevice.

Second-By posting at the point of discovery on the surface a plain sign or notice, containing the name of the lode, the name of the locator, and the date of discovery.

Third-By marking the surface boundaries of the claim.Feb. 13, 1874.

Corner Posts, Center Posts.-M. A. S. ? 3153.-Such surface boundaries shall be marked by six substantial posts hewed or marked on the side or sides which are in toward the claim, and sunk in the ground, to-wit; one at each corner and one at the center of each side line. Where it is practically impossible on account of bed rock to sink such posts, they may be placed in a pile of stones, and where in making the surface boundaries of a claim any one or more of such posts shall fall by right upon precipitous ground, where the proper placing of it is impracticable or dangerous to life or limb, it shall be legal and valid to place any such post at the nearest practicable point, suitably marked to designate the proper place.-Feb. 2, 1876.

Open Cuts and Tunnel Discoveries.-M. A. S. 8 3154.-Any open cut, cross-cut or tunnel which shall cut a lode at the depth of ten feet below the surface, shall hold such lode, the same as if a discovery shaft were sunk thereon, or an adit of at least ten feet in along the lode from the point where the lode may be in any manner discovered, shall be equivalent to a discovery shaft. -Feb. 13, 1874.

Time to Sink Discovery.-M. A. S. ? 3155.-The discoverer shall have sixty days from the time of uncovering or disclosing a lode to sink a discovery shaft thereon.-Id.

The Doctrine of Appropriation would have no application to mining and water claims on the Pacific Slope if the lands, before the discovery of minerals, had passed into the hands of private owners; nor to the government itself, if the government had chosen either to treat the miners as trespassers or to arbitrarily dispose of the lands at public sale. Instead of

adopting any such policy, the United States for many years tacitly, and since 1866 by positive enactment, opened the lands to the explorer and occupant; in other words, the mineral lands were offered to the first appropriator.

The Acts of Appropriation, as to mineral land, are equivalent to such acts as would amount to occupation in other cases; there must be an intent to possess the claim, such acts of appropriation as are sufficient to carry out this intention, and finally such acts must have such publicity by record as to operate as notice to all that the lands have been actually appropriated.

The appropriation of a mine, the appropriation of water for mining or irrigating purposes, and the occupation of homestead land are therefore in substance the same, and differ only so far as the various subject matters differ, the criterion in each case being the intent of the occupant to segregate a certain portion of the public domain to his several use, followed by acts manifesting such intention with such publicity as is due to the rights of third parties.-Sparrow v. Strong, 2 M. R. 320; Gore v. McBrayer, 1 M. R. 645.

The Right of Appropriation is now Regulated by Statute to a greater or less extent in the various States and Territories, so that the appropriator must not only occupy the ground, but must segregate his claim and otherwise comply with the law, which attempts to reduce to detail the above general principles.

These statutes fix a time for the process of location and record and require certain acts to be done to constitute a valid location. In all the Western mining States and Territories, except California, Utah and Alaska, the regulations are quite specific. They have copied the earlier Colorado Statute more or less closely. In the excepted States much more is left to district custom. It is intended that a location made as in this chapter advised.would be valid in any State or Territory, except where some specific statute calls for additional requirements: The details of location in each State and Territory are tabulated on page 56.

The formal acts of appropriation are: (1) Discovery. (2) Location. (3) Record.

Discovery the Inception of Title.-The discovery of a lode of itself gives title to the vein for such length of time as is allowed by law for the completion of the location and record (Murley v. Ennis, 12 M. R. 360; Erhardt v. Boaro, 4 M. R. 432; 113 U. S. 527); and when the location and record are made, the inception of title still relates back to the date of discovery. (Burke v. McDonald, 29 Pac. 98.) From this fact a later record may show an older and better title than

a record made several months earlier; Patterson v. Hitchcock, 5 M. R. 542. For this reason it is advisable for the location certificate to recite the date of discovery as well as the date of location.

If the statute or district rule does not fix a specific time for the discoverer to follow up his discovery the common law allows him a reasonable time to do each act required.

The Vein Must be Reached.-The discovery is not complete until the vein itself is disclosed. The finding of float or loose quartz is not sufficient. There is a custom generally respected among miners, when any person has discovered indications of a lode and is diligently following up these indications, to allow thirty days in which to uncover the deposit; but, if another, by a shorter cut, should first actually reach the vein, it would seem that the first prospector, except as qualified by the Boaro case cited in the next paragraph, could assert no priority; and such has been the tenor of the decisions. Upton v. Larkin, 6 Pac. 66 ; North N. Co. v. Orient Co. 9 M. R. 529; Overman Co. v. Corcoran, 1 M. R. 691.

In Walsh v. Mueller, 40 Pac. 292, the facts which constituted the discovery are stated and held such clear proof as warranted the reversal of a finding that there was no discovery.

Prospector's Rights Before Discovery.-If, however, a prospector has discovered float or other indications of the immediate presence of the vein and keeps diligently at work, such inchoate discovery has practically been held by the National Supreme Court in Erhardt v. Boaro, 113 U. S. 536, equivalent to the discovery of the vein in place. If it does not go so far as to decide that the prospector could at once locate upon such indications, it does decide that he has not only the right to be protected in his possession while following up such indications, but that he will be protected to the extent of a full claim when his location is complete.