California.

Gore v. McBrayer, 18, 582 (1861). G., M., and nine others verbally agreed to prospect for quartz, and to be equally interested in the claims taken up. M. discovered a lead, and located it by putting up a written notice with his own, G.'s, and others' names on it. This process was the usual mode recognized among miners to indicate the taking up of a claim of this sort. as, in fact, an appropriation or proof of appropriation of the claim. G. thus acquired a right to his share of the claim, which right could not be divested by M.'s taking down the notice on the following day and putting up another which did not contain G.'s name. The Statute of Frauds has no application to this class of cases. It is not a mode of vesting or transferring title from the owners of the fee or the holder of the title, but a mere mode of showing that the locator has availed himself of the government's concession of the privilege of occupying and using the ground. This right may be exercised through an agent or servant; whenever the appropriation is made by an agent having authority from a principal to make it, the act is complete and the title vests in the principal, and the agent by his mere act cannot subsequently divest it.

Morton v. Solambo Copper Mining Co., 26, 527 (1864). If a mining custom allows a person to locate a vein or lode for himself and others, by placing thereon a notice, with his own name and the names of those whom he may choose to associate with him appended thereto, designating the extent of the claim, and one person thus locates a lode for himself and others, some of whom have no knowledge of the location, these latter become tenants in common with the locator and the others, and cannot be divested of their interest by the locator's afterwards tearing down the notice and posting another omitting their names, unless this is done with their knowledge and assent.

Thompson v. Spray, 72, 528 (1887). Mining claims may be located by agent. Where there is a local custom to that effect, it is not necessary that the person in whose name a location is made should be aware that it has been made. In the absence of such custom, there must be authority in the first instance, or ratification. Bringing of suit to quiet title is such ratification.

Moritz v. Lavelle, 77, 10 (1888). An agreement to locate and develop a mining claim for the joint benefit of the parties need not be in writing. If in pursuance of such an agreement one of the parties locates the claim in his own name, he is a trustee for the others to the extent of their interest, and they are entitled to enforce conveyance to them.

Mitchell v. Cline, 84, 409 (1890). A contract between several persons to locate for their joint benefit an amount of placer mining ground exceeding the limit of twenty acres for each individual, and to pretend to satisfy the law by using the names of additional locators who would, without consideration, convey their interests to the contracting parties jointly, is against public policy, and a court of equity will not enforce a trust founded on this contract in favor of one of the contracting parties against another of them who has procured a conveyance to himself individually from one of the sham locators.

Moore v. Hamerstag, 109, 122 (1895). A mining claim is real estate, and under the Statute of Frauds can only be transferred by operation of law or an instrument in writing.

The location of a mining claim may be made in the name of another than the actual locator, and when so made the person in whose name it is made becomes vested with the legal title to the claim; and where at the time there was no fiduciary relation between them, and it was not made under any prior agreement to hold the claim in trust for the actual iocator, a subsequent parol promise to so hold it is void.

Consolidated Republican Mountain M. Co. v. Lebanon Colorado. M. Co., 9, 343 (1886). One who acted as the agent of another in perfecting title to a lode, having himself no interest therein, is not estopped after his agency ceased from conveying any other or different title which he thereafter acquired to the premises in controversy. Kramer v. Settle, 1, 485 (1873). If one of several coIdaho. locators of a mining claim caused notice of location to be recorded in the name of himself and others, in the absence of proof it will be presumed that the written consent of such others, as required by section five of the act in relation to mines, had been seen, and a minute made thereof by the recorder, before recording the notice.

Lockhart v. Rollins, 2, 503; 21 Pac. 413 (1889). One who holds a fiduciary relation as agent for the care, supervision, and sale of a mining claim cannot obtain an interest adverse to his principal by relocating the claim in his own name. The relocation accrues to the

benefit of the principal.

Hirbour v. Reeding, 3, 15 (1877). A., B., and C. entered Montana. into a verbal contract of partnership to prospect for, locate, record, pre-empt, develop, and mine quartz lodes in Montana Territory, each to have the same interest in the property. The S. G. lode was discovered by them, but recorded by B. and C. in their names. All three worked upon and developed the ground. Afterward D. located a part of the same ground under the name of B. lode, but the conflict was settled by a conveyance by D. to B. and C. Held, the contract between A., B., and C. was not within the Statute of Frauds, and A. was entitled to an interest in the ground, which he could enforce, and which was not impaired by the conveyance by D. to B. and C.

Van Valkenburg v. Huff, 1, 142 (1865). A. in making Nevada. his location used C.'s name without the latter's knowledge. By so doing he put himself in the place of servant or agent of C., and acquired no right which he could assert in himself. He could only acquire such right by abandoning the first location and relocating in his own name, in which case his right would date from this latter location.

Chase v. Savage Silver Mining Co., 2, 9 (1866). A. and B. located a mining claim in the name of themselves and four others, then they drew up a contract with prospectors, intended to be executed by all the parties, but which was signed by A. and B. only. Held, one of the other associates could ratify the location without becoming bound by the contract. A. and B. did not profess to act as his agent in making the contract, and there was no agency to be ratified.

Welland v. Huber, 8, 203 (1873). Where one located mining ground in his own name, either acting as agent for another or in pursuance of a partnership with another, by which he agreed to prospect and locate mining claims for their joint benefit, he did so under an implied

promise to convey to that other his interest upon request. The latter at once acquired a right to specific performance, which he might enforce without previous request. H., W., G., and K. entered into a partnership, by which it was agreed that the last three should furnish the means, and H. should prospect for and make location of a lode, in which all should be equally interested. H. located one thousand feet of mining ground, four hundred in his own name and two hundred in the name of each of the others. W., G., and K. each conveyed two hundred feet to H., and subsequently declared that they had sold out their interests in the mine to H. This did not constitute a conveyance of their interest in the four hundred feet which was located in H.'s name, and was no defence to an action for a conveyance thereof.

"DISCOVERY and appropriation are the sources of title to mining claims, and development by working is the condition of their continued possession." Discovery is the first step in the location of the claim, or, more exactly, it is the precedent requisite to the location of a lode claim. The provision of the Rev. Stats. 2320 is: "No location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located." No right can be acquired by location before discovery. It has been held that this rule does not apply in the case of placer claims which may be located without previous discovery of mineral.1

This decision, however, is not recognized in the Land Office, where it is held that discovery is as much a prerequisite of a placer location as of a lode location.2

Discovery in the case of lode claims may be defined as being the finding of ore or metalliferous rock in place in a defined vein or in continuous vein matter upon unappropriated land of the public domain. The finding of float or detached pieces of ore will not be considered sufficient discovery upon which to base a

1 Gregory v. Pershbaker, 73 Cal. 109. 2 Royal K. Placer, 13 L. D. 86; Ferrell v. Hoge, 18 L. D. 81; 19 L. D. 568; Reins

v. Murray, 22 L. D. 409. And see Idaho, Act March 5, 1895, sec. 11, p. 26.

location. It must be of ore in place; but on the other hand it has been very properly held that the lode or vein discovered need not contain "pay" ore. It is sufficient if it contain even a trace of ore, if the rock in place is sufficiently encouraging to warrant an ordinarily prudent person spending his time or money upon it.1 Expert evidence is admissible to show that the vein is such as a miner would be likely to follow with the expectation of finding paying ore.

Having made such a discovery, the discoverer is entitled to make a location upon it in order to preserve to himself the fruits of his discovery. But a discovery, though made by several persons, cannot be made the basis of the location of more than one claim. Discovery made subsequent to acts of location does not validate such acts, unless no adverse rights have intervened.

The discovery must be within the limits of the claim located. There is a dictum of Justice Field in Erhart v. Boaro that a discovery outside the limits of the claim, provided its proximity and character are such as to justify a reasonable belief that the lode extends within the limits of the claim, entitles the discoverer to hold the land while completing his excavations to determine this fact and perform the necessary acts of location. Indeed, it has also been decided that the prospector can hold to the extent of his claim, if he remains in actual possession while he is prosecuting a search for mineral before the discovery of the same in place; but if he stand by and permit another to sink a shaft, or otherwise search for mineral within his boundary, and the latter first discovers the mineral, a location by the latter will take precedence over his claim.

It follows that when there is a dispute between locators as to territory which both claim; priority of proper location, based upon discovery of mineral in place, will take precedence; or even in the case when both have located it, but neither has found mineral in the territory in dispute, it will be awarded to him who first finds it in place in the vein. It is true with regard to either of these propositions that it matters not where the mineral is found, whether outcropping or in a shaft, provided it extends

1 While the statements in the text are true as against subsequent locators, it is questionable whether they are as against agricultural claimants. In such a contest

the test of the mineral character of the land is whether it can be mined profitably or not. See further, Chap. XIV., Div. I., G., and Chap. XV., Div. I.