471. Evidence that the discovery shaft is not upon claimed ground is admissible as going to show the invalidity of the claim. McGinnis v. Egbert, 8 Colo. 41; 15 Mor. Min. Rep. 329; 5 Pac. Rep. 653. 471a. "It [sec. 2320, U. S. Rev. Stat.] allows a claim to be located to the extent of fifteen hundred feet along the vein or lode, but provides that no location shall be made until the discovery of the vein or lode within the limits of the claim located, which is, in effect, a declaration that locations resting simply upon a conjectural or imaginary existence of a vein or lode within their limits shall not be permitted. A location can only rest upon an actual discovery of the vein or lode." King v. Amy and Silversmith M. Co., 152 U. S. 222. 472. The discovery and location of a claim in pursuance of the law is equivalent to a contract of sale and purchase where the purchaser is let into possession and becomes entitled to a deed upon payment of the purchase-money and making of a certain expenditure. Renshaw v. Switzer, 6 Mont. 464; 13 Pac. Rep. 127; 15 Mor. Min. Rep. 345. 478. A purchaser from a discoverer before the location of a claim is completed must perfect the location within the time allowed from date of discovery to protect his rights. Zeckendorf v. Hutchison, 1 New Mex. 476; 9 Mor. Min. Rep. 483. 479. In the absence of a statute a discoverer is entitled to a reasonable time within which to perfect his location. Murley v. Ennis, 2 Colo. 300; 12 Mor. Min. Rep. 360. Ninety days is an unreasonably long time. Patterson v. Hitchcock, 3 Colo. 533; 5 Mor. Min. Rep. 542. 480. A discovery elsewhere than in the discovery shaft, after location, will not avail to hold the claim, as the location rests on what may be found in the discovery shaft. Van Zandt v. Argentine M. Co., 2 McCrary, 159; 4 Mor. Min. Rep. 441. 481. A discovery although not in the discovery shaft is sufficient as a basis for a location. Evidence showing such discovery is admissible. O'Donnell v. Glenn, 8 Mont. 248; 19 Pac. Rep. 302. 482. A discovery of mineral in the discov 473. The workings which show mineralery shaft need not be made before location made the basis of the location need not be made by the locator. Wenner v. McNulty, 7 Mont. 30; 14 Pac. Rep. 643. 474. An assay of a rock taken from a claim, though long subsequent to the location, goes to show that a lode existed in the claim at date of location, and hence tends to strengthen any evidence of a discovery at the date of location. Southern Cross G. & S. M. Co. v. Europa M. Co., 15 Nev. 383; 9 Mor. Min. Rep. 513. and filing of location certificate, in the absence of the intervention of adverse rights. Strepy v. Stark, 7 Colo. 614; 5 Pac. Rep. 111; 4 West Coast Rep. 663. 483. In ejectment plaintiff must prove a legal location based on a discovery of mineral-bearing rock in place, in a discovery shaft, such as is required by State statute. Van Zandt v. Argentine M. Co., 2 McCrary, 159; 4 Mor. Min. Rep. 441. 484. Discovery and appropriation are rec475. A lode location will be presumed to ognized as the source of title to mining cover the lode discovered in the absence of a claims, and development by working, as the showing to the contrary. Patterson v. Hitch-condition of continued ownership until issu cock, 3 Colo. 533; 5 Mor. Min. Rep. 542. 476. One who, by force and intimidation, has prevented the discoverer of a lode from perfecting his location will not be heard to set up a discoverer's failure so to do, as that would be to allow him to profit by his own wrong. Miller v. Taylor, 6 Colo. 41; 9 Mor. Min. Rep. 547. 477. Failure to sink a discovery shaft within sixty days from date of discovery is of no effect if rendered impossible by duress (Colorado). Erhardt v. Boaro, 2 McCrary, 141; 8 Fed. Rep. 692. See 113 U. S. 527; 4 Mor. Min. Rep. 432. ance of patent therefor (entry of the claim and payment for the land). Erhardt v. Boaro, 2 McCrary, 141; 1 Mor. Min. Rep. 452. See 113 U. S. 527. 485. A location of a lode claim must be based on a discovery of a vein or lode on vacant public land. If the discoverer whose sole discovery is upon a conflicting claim allows such conflicting claim to be patented inclusive of his discovery, he loses all right under his location, and his claim becomes open to exploration and location by others. Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482. 486. Where the original discovery shaft of a mining location is included within a subsequent location as patented, on the failure of the first locator to commence adverse proceedings within the time required, or to set up a new discovery stake at a new discovery shaft on unappropriated ground, he loses all rights under the prior location not only as against the patentee but also as against subsequent locators. Girard v. Carson, 44 Pac. Rep. 508 (Colo.). 487. As between mineral claimants, when it is alleged by one that the lode claim of the other was not based on a valid discovery prior to location, it is no part of the defense to show the existence of a valuable deposit of mineral. The value of the mineral deposit is a matter into which the government does not inquire after discovery and location save in controversies between mineral and agricultural claimants. Tam v. Story, 21 L. D. 440. 488. The location of a mining claim is warranted where mineral is discovered such as would justify a person of ordinary prudence in expenditure of labor and means to develop the claim. Castle v. Womble, 19 L. D. 455. 489. The law does not impose any conditions as to the value or extent of the ore. It simply provides that no location of a mining claim shall be made until the discovery of a vein or lode within the limits of the claim located. Book v. Justice M. Co., 58 Fed. Rep. 106. 490. Mere discovery of fragments of mineral-bearing ore not in lode formation will not form the basis of a valid location of a lode claim. Waterloo M. Co. v. Doe, 56 Fed. Rep. 685. 491. A claimant who locates a claim in good faith, as discoverer of a vein afterward found to be part of one great lode underlying a large tract, is entitled to the additional two hundred feet of the vein allowed by law to discoverers. Richmond M. Co. v. Rose, 114 U. S. 576. 492. The fact that a location is based upon a discovery within a prior location does not, proprio vigore, invalidate the second location, as, if application is made therefor and no adverse claim is filed, it is conclusively presumed that the first locator had no right to the ground common to the two locations. Branagan v. Dulaney, 2 L. D. 744. 493. As the evidence shows that the oil placer mining claim was located in good faith, it is no defense to a trespass act to say that mineral does not exist upon the mining claim. Van Horn v. State of Wyoming, 40 Pac. Rep. 964. 494. When the validity of a claim depends upon whether a lode has been discovered and located, evidence that such claim contains a vein within its boundaries at places other than at the discovery point is admissible. Harrington v. Chambers, 3 Utah, 94; 1 Pac. Rep. 362. 495. Evidence as to the extent and richness of the vein as developed subsequent to location is inadmissible for the purpose of showing the location to have been based upon a discovery thereof. Upton v. Larkin, 7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. Rep. 404; S. C., 5 Mont. 600; 6 Pac. Rep. 66. 496. A party to an adverse suit may show the location of his adversary to be invalid because based upon a discovery made within the limits of a prior subsisting location of a third party. Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482; Harrington v. Chambers, 3 Utah, 94; 1 Pac. Rep. 362; Armstrong v. Lower, 6 Colo. 393; 15 Mor. Min. Rep. 631. (Affirmed, 6 Colo. 581; 15 Mor. Min. Rep. 458.) 497. Where more than twenty acres is embraced in one placer location, a discovery of mineral must be shown in every twenty acres. Ferrell v. Hoge, 18 L. D. 81; Louise M. Co., 22 L. D. 662; Wingate Placer, 22 L. D. 704. 498. A vein need not necessarily crop out on the surface in order that a location may be properly laid upon it; but where the vein does crop out along the surface, or is slightly covered by foreign matter, so that the course of the apex can be readily ascertained, this course should be substantially followed in laying claims and locations upon it. Flagstaff S. M. Co. v. Tarbett, 98 U. S. 463; 9 Mor. Min. Rep. 607. 499. In the absence of an adverse claim it will be presumed that a lode exists in land covered by a regularly located lode mining claim. Apple Blossom Placer v. Cora Lee Lode, 21 L. D. 438. 500. The presumption arising upon the location of a mining claim that the land covered thereby is mineral in character, though returned as agricultural, exists only where such location is legally made and based upon a proper discovery. Rhodes v. Treas, 21 L. D. 502. 501. The forcible ouster of one who has discovered a mineral-bearing lode and has posted a notice of his claim thereon, by a trespasser, during the time allowed the discoverer, by law, to perfect his location, and the prevention of the discoverer from compliance with the law in that regard, excuse him, at least as against such intruder, from a performance of the various acts necessary to a legal location. Erhardt v. Boaro, 2 McCrary, 141; 1 Mor. Min. Rep. 452. See 113 U. S. 527. 502. A location of more ground than is allowed by law is void only as to the excess. Flagstaff S. M. Co. v. Tarbett, 98 U. S. 463; 9 Mor. Min. Rep. 607; Richmond M. Co. v. Rose, 114 U. S. 576; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411; Terrible M. Co. v. Argentine M. Co., 5 McCrary, 639; Thompson v. Spray, 72 Cal. | 528; 14 Pac. Rep. 182; Atkins v. Hendree, 1 Idaho, 95; 2 Mor. Min. Rep. 328; Stemwinder M. Co. v. Emma & Last Chance Cons. M. Co.. 2 Idaho, 421; 21 Pac. Rep. 1040; Burke v. McDonald, 2 Idaho, 646; 33 Pac. Rep. 491; Rose v. Richmond M. Co., 17 Nev. 25; 27 Pac. Rep. 1105; 2 Colo. Law Rep. 7; Hansen v. Fletcher, 10 Utah, 266; 37 Pac. Rep. 480; Doe v. Sanger, 23 Pac. Rep. 363; T. M. Empy, 10 C. L. O. 102. (Questioned in Hauswirth v. Butcher, 4 Mont. 299; 1 Pac. Rep. 714.) a location, otherwise valid, totally void. This may occur, and often must occur, by accident of the surveyor, or other innocent mistake. Richmond M. Co. v. Rose, 114 U. S. 576. 507. The location of a narrow strip of land twelve thousand feet long, as a placer claim, extending through three sections, does not conform "as near as practicable" to the rectangular subdivisions of the public surveys. William Rablin, 10 C. L. O. 3. (Overruled S. C., 2 L. D. 764.) 508. Where part of a legal subdivision is non-mineral land, and the gold deposit is in a ravine, a location that follows the mineral deposit conforms to the public surveys as near as practicable. Esperance M. Co., 10 C. L. O. 338; William Rablin, 2 L. D. 764. 509. Absolute accuracy of location is not required of miners. Eilers v. Boatman, 3 Utah, 159; 2 Pac. Rep. 66; 1 West Coast Rep. 632; 15 Mor. Min. Rep. 462; 111 U. S. 356; 15 Mor. Min. Rep. 471; Brady v. Husby, 21 Nev. 453; 33 Pac. Rep. 801; Burke v. McDonald, 2 Idaho, 646; 33 Pac. Rep. 49; Doe v. Sanger, 23 Pac. Rep. 363. 510. A location of a lode claim in the form of a triangle, i. e., having only one end line, gives the locator no right to follow his lode outside of the surface lines of his location. Montana Co. v. Clark, 42 Fed. Rep. 626. that it can do, where the lines are drawn inaccurately and irregularly, is to give the claimant such rights as his imperfect location warrants, under the law. King v. Amy & Silversmith M. Co., 152 U. S. 22. (Reversing 9 Mont. 543; 24 Pac. Rep. 200.) 511. Where the end lines of a lode claim are not drawn so as to secure all rights possible under the law, the locator must bear the 503. Where an extra amount of the lode consequences. The court cannot relocate the is claimed by right of discovery, and it is sub-claim, making new lines therefor. The most sequently shown by development that the locators were not the discoverers, the location is void, if at all, only as to the excess. Rose v. Richmond M. Co., 17 Nev. 25; 27 Pac. Rep. 1105; 2 Colo. Law Rep. 7; 114 U. S. 576. 504. A patent issued subsequent to 1872 for a claim exceeding a width of three hundred feet on each side of the middle of the vein is void as to such excess. Lakin v. Roberts (Dolly), 53 Fed. Rep. 333; 54 Fed. Rep. 461; 7 U. S. App. 539. 512. Where a lode leaves a claim through a side line, for the purpose of ascertaining and defining the right of the owner to follow the lode on its dip under section 2322, United States Revised Statutes, an end line should be drawn through the side line at the point of departure parallel to the original end lines. Flagstaff S. M. Co. v. Tarbett, 98 U. S. 463; 9 Mor. Min. Rep. 607; Iron Silver M. Co. v. Elgin M. Co., 118 U. S. 196; 15 Mor. Min. Rep. 641; Argentine M. Co. v. Terrible M. Co., 122 U. S. 506. The inclusion of a larger number of 478; Tyler M. Co. v. Last Chance M. Co., 7 lineal feet than two hundred does not render | U. S. App. 463; 61 Fed. Rep. 463; 157 U. S. 683; 505. A party taking an excess of ground by location may hold the same against an intruder, but not against a subsequent locator. English v. Johnson, 17 Cal 107; 12 Mor. Min. Rep. 202. Fitzgerald v. Clark, 42 Pac. Rep. 273; 157 U. S. 696; Colorado Central Cons. M. Co. v. Turck, 50 Fed. Rep. 888; 4 U. S. App. 290; 12 U. S. App. 85; Tyler M. Co. v. Sweeney, 54 Fed. Rep. 284; 4 U. S. App. 329; Last Chance M. Co. v. Tyler M. Co., 61 Fed. Rep. 557; 9 U. S. App. 613; Stevens v. Williams, 1 McCrary, 480: 1 Mor. Min. Rep. 557; Stevens v. Gill, 1 Mor. Min. Rep. 566, 576; 16 Am. Rep. 304; Cons. Wyoming M. Co. v. Champion M. Co., 63 Fed. Rep. 540; Del Monte M. & M. Co. v. New York & Last Chance M. Co., 66 Fed. Rep. 212; Tyler M. Co. v. Last Chance M. Co., 71 Fed. Rep. 848; Wilhelm v. Sylvester, 101 Cal. 358; 35 Pac. Rep. 997; King v. Amy & Silversmith Cons. M. Co., 9 Mont. 543; 24 Pac. Rep. 200; Tombstone M. & M. Co. v. Way Up M. Co., 25 Pac. Rep. 794; Watervale M. Co. v. Leach, 33 Pac. Rep. 418. 513. But where the claim is located across instead of along the lode, the side lines will be treated as end lines. King v. Amy & Silversmith Cons. M. Co., 152 U. S. 222. 514. If a location be laid crosswise of a lode or vein, so that its greatest length crosses the same instead of following the course thereof, it will secure only so much of the vein as it actually crosses at the surface, and the side lines of the location will become the end lines thereof for the purpose of defining the rights of the owners. Flagstaff S. M. Co. v. Tarbett, 98 U. S. 463; 9 Mor. Min. Rep. 607. 515. The law contemplates a location to be made nearly parallel with the line of the vein, and if a locator knowing the line of the vein, and wilfully and with fraudulent purpose, locate his claim in disregard of such line and course of the vein, and establish its length not along the vein but across it to an excess of several hundred feet or more beyond the three hundred feet allowed by Congress, for the fraudulent purpose of gaining and appropriating such excess of surface ground as his mining claim, this would be in deliberate violation of law, and the locator could gain no rights whatever thereby, but his location would be absolutely null and void, and he would be in the same position as if a location had never been attempted to be made. Walsh v. Mueller, 16 Mont. 180. 516. In the location end lines must be established as required by the statute, and where the locator fails to do this, the courts will not fix them by implication. If the end lines be absent or so placed as not to define the right of the locator to the exterior parts of the lode, the defect cannot be supplied. Elgin M.& Sm. Co. v. Iron S. M. Co., 14 Fed. Rep. 380. by the fact that as located the end lines are 517. The validity of a claim is not affected not parallel, if they are made parallel prior to the intervention of adverse rights. Eureka Cons. M. Co. v. Richmond M. Co. (Eureka Case), 4 Sawy. 302; 9 Mor. Min. Rep. 578; Doe v. Waterloo M. Co., 54 Fed. Rep. 935; Horswell Min. Rep. 488; Doe v. Sanger, 83 Cal. 203; 23 v. Ruiz, 67 Cal. 111; 7 Pac. Rep. 197; 15 Mor. Pac. Rep. 365. 518. "Under the act of 1866 (14 Stat. 251), parallelism in the end lines of a surface location was not required; but where a location has been made since the act of 1872, such parallelism is essential to the existence of any right in the locator or patentee to follow his through the side lines. His lateral right by vein outside of the vertical planes drawn the statute is confined to such portion of the vein as lies between such planes drawn through the end lines and extended in their own direction, that is, between parallel vertical planes. It can embrace no other portion." Iron Silver M. Co. v. Elgin M. & Sm. Co. (Horseshoe Case), 118 U. S. 196; 15 Mor. Min. Rep. 641. 519. The end line of a lode claim must be established at the point where the lode applied for passes within a prior excluded loca tion. Consolidated M. Co., 11 L. D. 250. 520. Extra-lateral rights to work a lode other than the one specifically located are governed by the end lines as located in the same manner as the extra-lateral rights to work the lode located. Walrath v. Champion M. Co., 63 Fed. Rep. 552. 521. If the lode leaves the location at a point on a side line, the right to follow it on its strike ceases at the point of intersection of the lode with the side line. Wolfley v. Lebanon M. Co., 4 Colo. 112; 13 Mor. Min. Rep. 282; Johnson v. Buell, 4 Colo. 557; 9 Mor. Min. Rep. 502. 522. Where separate applications and entries are made for the several locations surveyed as one claim, the claimant may file a new application for the consolidated claim and make a new entry therefor, nunc pro tunc. F. A. Williams, 15 L. D. 532. 523. The quantity of ground a miner can claim by location, or prior appropriation for mining purposes, may be limited by the min ing rules of the district; but such rules can- 530. A lode claim may not exceed in not limit the quantity of ground or the num-length the lode on which it is located. Patber of claims a party may acquire by purchase. terson v. Hitchcock, 3 Colo. 533; 5 Mor. Min. Prosser v. Parks, 18 Cal. 47 (1861); 4 Mor. Min. Rep. 542. Rep. 452. 524. A vein can only be located by means of a surface claim, and held only to the extent that it is included within the surface lines (except rights to follow it on its dip). Gleeson v. Martin White M. Co., 13 Nev. 442; 9 Mor. Min. Rep. 429. 525. In the absence of local regulations the quantity of mining ground which may be located is restricted to a reasonable area. This question will be determined by the general usages and customs prevailing upon the subject. Table Mountain Tunnel Co. v. Stranahan, 20 Cal. 198 (1862); 9 Mor. Min. Rep. 457. 526. The length of a location made under the act of 1866 may be that allowed by said act; but the width of surface ground patented may not exceed three hundred feet on each side of the middle of the vein, under section 2320, United States Revised Statutes, act of 1872. Lakin v. Roberts (Dolly), 53 Fed. Rep. 333; 54 Fed. Rep. 461; also, 7 U. S. App. 539. 527. The Montana statute of 1864, allowing surface ground fifty feet on each side of the lode, is construed as meaning fifty feet on each side the inclosing walls of the lode, allowing the width of the claim to be one hundred feet plus the width of the lode. Foote v. National M. Co., 2 Mont. 402; 9 Mor. Min. Rep. 605. 528. When no mining regulations or customs are in force in a district where a mining claim is located, general customs then in force may be given in evidence upon the question of the reasonableness of its extent. A general uniform custom should be proved if one exists. Table Mtn. Tunnel Co. v. Stranahan, 31 Cal. 387 (1865); 20 Cal. 198; 9 Mor. Min. Rep. 457. 529. A location of a lode need not be a parallelogram, but may follow the course of the lode, whether that be straight or tortuous. (This principle, applied to the facts in this case, gives a decision contrary to the case of Iron & M. Co. v. Elgin M. & Sm. Co., 118 U. S. 196; 15 Mor. Min. Rep. 641.) Breece M. Co., 3 L. D. 11 See, to the same general effect, Wolfley v. Lebanon M. Co., 4 Colo. 112; 13 Mor. Min. Bep. 282. Contra, Albert Johnson, 7 C. L. O. 35. 531. The lode located constitutes the measure of the locator's right to surface ground, and if it terminates at any point within the location or departs from the claim, the location beyond that point is defeasible if not void. Patterson v. Hitchcock, 3 Colo. 533; 5 Mor. Min. Rep. 542; Armstrong v. Lower, 6 6 Colo. 581; 15 Mor. Min. Rep. 458.) Zollars Colo. 393; 15 Mor. Min. Rep. 631. (Affirmed, & Highland Chief Cons. M. Co. v. Evans, 2 McCrary, 39; 5 Fed. Rep. 172; 4 Mor. Min. Rep. 407. 532. Mining district regulations may restrict placer locations to eighty rods in length. Rosenthal v. Ives, 2 Idaho, 244; 12 Pac. Rep. 904; 15 Mor. Min. Rep. 324. 533. A mineral patent issued after May 10, 1872, could not convey more than three hundred feet of surface on each side of the lode applied for, even though the location was made under a law which allowed more than that width of surface ground. Lakin v. Roberts (Dolly), 7 U. S. App. 539 (on appeal from 53 Fed. Rep. 333, and 54 Fed. Rep. 461, on review). 534. The measurement of the width of a mining claim should begin from the outer walls of the lead, and not from the center of the lead itself (act of Montana, 1864). But see section 2320, United States Revised Statutes. Foote v. National M. Co., 2 Mont. 402; 9 Mor. Min. Rep. 605. 535. The "line of the tunnel," as used in section 2323, United States Revised Statutes, means the space between the lines of the sides of tunnel, protracted, not the entire width of the tunnel location. Corning Tunnel & M. Co. v. Pell, 4 Colo. 507; 14 Mor. Min. Rep. 612. 536. Section 2323, United States Revised Statutes, does not authorize the location as a tunnel claim of a tract of land fifteen hundred feet by three thousand feet. Corning Tunnel & M. Co. v. Pell, 4 Colo. 507; 14 Mor. Min. Rep. 612. 537. From the time of location of a tunnel claim under section 2323, United States Revised Statutes, and during work therein, the locator has an inchoate right to all blind lodes on the line of the tunnel, within three thousand feet of its face, that were not dis |