Although prior to location no discovery of mineral was made within the ground claimed, upon a subsequent discovery prior to application for patent the location became good and sufficient, in the absence of any adverse rights. Mitchell, 2 L. D. 752 (1884). Where it appears that discovery and improvements are upon adjoining or conflicting land already patented to others, application for patent will be denied. Spur Lode, 4 L. D. 160 (1885). Patent will not issue on an application wherein the land upon which the discovery shaft and improvements are situated is expressly excepted therefrom, and the proof fails to show the discovery or existence of mineral on the claim as entered, or the requisite expenditure for the benefit thereof. Antediluvian L. & M. Site, 8 L. D. 602 (1889); Lone Dane Lode, 10 L. D. 53 (1890). A discovery, though made by two persons, is but a single discovery, and but one location can be based upon it. It is not susceptible of subdivision for the purpose of two locations, having a common end line that bisects the discovery shaft. Poplar Creek Con. Q. Mine, 16 L. D. 1 (1893). Discovery within the limits of a lode claim is a prerequisite to the location thereof. A properly corroborated protest alleging that there was no discovery is ground for a hearing, although the deputy surveyor's report shows the existence of ores in various parts of the claim. Waterloo M. Co. v. Doe, 17 L. D. 111 (1893). Where minerals have been found, and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success in developing a valuable mine, the requirements of the statute have been met. Castle v. Womble, 19 L. D. 455 (1894). There must be a discovery on each twenty acres in a placer claim of one hundred and sixty acres made by an association. Ferrell v. Hoge, 19 L. D. 568 (1894); Louise Min. Co., 22 L. D. 663 (1896); Union Oil Co., 23 L. D. 222 (1896).1 An entry will not be allowed when the discovery is within the limits of a prior patented lode claim. Edw. W. Williams, 20 L. D. 458 (1895); Winter Lode, 22 L. D. 362 (1896). In a contest between mineral claimants, where one alleges that the claim of the other was not based on a valid discovery, the latter is not bound to show the existence of a valuable deposit of mineral. The government does not inquire into the value of mineral deposits except in contests between mineral and non-mineral claimants. Tam v. Story, 21 L. D. 440 (1895). Discovery is a necessary prerequisite to the location of a placer claim. The fact that the land has been returned as mineral does not avoid this necessity. Reins v. Murray, 22 L. D. 489 (1896). II. LENGTH OF TIME ALLOWED AFTER DISCOVERY TO PERFORM ACTS OF LOCATION. A discovery being made, the discoverer is entitled to retain undisturbed possession for a reasonable length of time to com1 To the contrary, McDonald v. Montana Co., 14 Mont. 88. plete the acts of location required by law. What length of time is allowed for this purpose is not fixed by the law of the United States, but is left to the law of the State or the regulations of the district. In the absence of such determination a reasonable time is allowed to the locator, and what this is depends upon the circumstances connected with the claim and affecting the locator's ability to define it. It may be stated broadly that he must not sleep upon his right, but must proceed with due diligence to develop his property. A fixed time is prescribed in many States.1 The locator's possession during this time must be undisturbed. One who by force or threats prevents the performance of the acts of location during the statutory period will not be allowed to take advantage of the locator's failure. Erhardt v. Boaro, 113, 527 (1884). Field, J.: United States. "Whenever preliminary work is required to define and describe the claim located, the first discoverer must be protected in the possession of the claim until sufficient excavations and development can be made so as to disclose whether a vein or deposit of such richness exists as to justify work to extract the metal. Otherwise the whole purpose of allowing the free exploration of the public lands for the precious metals would in such cases be defeated, and force and violence in the struggle for possession, instead of previous discovery, would determine the rights of the claimants. . . . And the laws of the United States do not prescribe any time in which the excavations necessary to enable the locator to prepare and record a certificate shall be made. That is left to the legislation of the State (Colorado), which prescribed sixty days for the excavations upon the vein from the date of recovery, and thirty days afterward for the preparation of the certificate and filing it for record. In the judgment of the legislature of that State this was reasonable time. This allowance of time for the development of the character of the lode or vein does not, as intimated by counsel, give encouragement to mere speculative locations, that is, to locations made without any discovery or knowledge of the existence of metal in the ground claimed, with a view to obtain the benefit of a possible discovery of metal by others within that time. "A mere posting of a notice on a ridge of rocks cropping out of the earth or on other ground, that the poster has located thereon a mining claim, without any discovery or knowledge on his part of the 1 Sixty days in Colorado, M. A. S., sec. 3155; N. Dakota, Rev. Codes 1895, sec. 1433; S. Dakota, Comp. L. 1887, ch. 19, art. 1, sec. 2,004; Wyoming, Act Feb. 21, 1895, p. 247: Ninety days in Arizona, Act March 20, 1895, sec. 6, p. 53; Montana Pol. Code, 1895, secs. 3611-2; New Mex ico, Act Feb. 5, 1889, p. 42: Three months in Minnesota, Gen. Stats. 1894, sec. 4067: Three days to mark boundaries, sixty days to sink shaft, and ninety days to record certificate in Idaho, Act March 20, 1895, secs. 2-4, p. 26. existence of metal there, or in its immediate vicinity, would be justly treated as a mere speculative proceeding, and would not itself initiate any right. There must be something beyond a mere guess on the part of the miner to authorize him to make a location which will exclude others from the ground, such as the discovery of the presence of the precious metals in it, or in such proximity to it as to justify a reasonable belief in their existence. Then protection will be afforded to the locator to make the necessary excavations, and prepare the proper certificate for record. "It would be difficult to lay down any rules by which to distinguish a speculative location from one made in good faith with a purpose to make excavations and ascertain the character of the lode or vein, so as to determine whether it will justify the expenditures required to extract the metal; but a jury from the vicinity of the claim will seldom err in their conclusions on the subject." Doe v. Waterloo M. Co., 70 Fed. 455 (1895), C. C. Ap., 9th Circ., affirming s. c. 55 Fed. 11. N. discovered a metal-bearing lode, and on the same day erected a monument and posted thereon a written notice: "I have this day located and claimed fifteen hundred feet on this lead or lode running one thousand feet northwesterly and five hundred feet southeasterly, with three hundred feet on each side for mining purposes. I also claim the legal time of twenty days to complete my boundary monuments." Eleven days thereafter W. and Y. located and set up the boundary monuments of a conflicting claim, and while doing so saw N.'s notice, but did not take the trouble to go and read it. Subsequently, but before the expiration of the twenty days, the transferees of part of N.'s interest (he being prevented by illness) marked the location on the ground and set up boundary monuThe location of W. and Y. was invalid. ments. The discoverer of a vein is entitled to a reasonable time within which to complete his location. What is a reasonable time depends upon the circumstances affecting the ability of the locator to properly define his claim. His illness is not one of these circumstances. They are such as pertain to the ground to be located, its character, the means of properly working the ground, and the ability to properly ascertain the dimensions and course or strike of the vein. In this case, where the ground was upon a rough mountain side, the vein was exposed for four hundred feet in one place and forty in another and for the rest of its length covered, and the dip was not exposed; twenty days was not unreasonable. Patterson v. Hitchcock, 3, 533 (1877). The discoverer of Colorado. a lode, by virtue of that discovery becomes entitled to a reasonable length of time in which to perfect the work required by law, and for that time he is permitted to retain possession of the property without interference; and the law protects him in his possession while the work of development goes on as well as after the development is completed, but in the meantime his work must progress with reasonable diligence. What is to be regarded as a reasonable time to occupy in sinking a discovery shaft in the manner and to the depth required by law is, when the facts are undisputed, a question of law. But when the question is submitted to the jury with the instruction that ninety days is not a reasonable time, he against whom the verdict is found cannot complain if the jury determine that less than ninety days (eighty-five days) was a reasonable time. The discovery was made in this case before the act of Feb. 13, 1874, went into effect. Miller v. Taylor, 6, 41 (1881). In an action for restitution of mining property, the plaintiffs alleged that they have been ousted of their possession before the expiration of the time within which they had to comply with the statutory requirements of marking, locating, and recording their claims, and that they were prevented by the threats of the defendants from complying with these requirements. A demurrer on the ground that the plaintiffs in their complaint did not show a compliance with the statutory requirements was overruled. One who prevents a thing's being done may not avail himself of the non-performance. Omar v. Soper, 11, 380 (1888). The object of the statute in giving sixty days for sinking the discovery shaft was evidently to afford the miner time to sink his shaft, and to ascertain the true course of his lode, when he would be qualified to mark its boundaries on the surface. During this period, if notice is posted, which in addition to the statutory requirements specifies the extent of territory claimed along the vein on both sides of the point of discovery, a claim is protected throughout its whole extent from invasion and adverse claims. one can lawfully enter upon it during the period for the purpose of initiating a claim, nor can any one in any manner initiate a claim thereto capable of being rendered valid in the future by the happening of fortuitous circumstances; as by sinking a discovery shaft, and locating another claim which overlaps the first. Idaho. No Burke v. McDonald, 33 Pac. 49 (1890). Beatty, C. J.: "The law does in its liberality allow the prospector after the discovery of his vein a reasonable time in which to develop its course, and then mark accordingly the boundaries of his claim; but it does not permit him, after having posted his notice, to leave his claim incomplete, and going in quest of other claims post his notice here and there over the country, to the exclusion of other prospectors, and at his leisure prospect and mark out his claims. While no hardship or unusual exertion is required of him, good faith and reasonable diligence are." If after posting notice a discoverer leaves for four days, during which time he posts fifteen other claims, his rights will not be protected against intervening locators. "A Gleeson v. Martin White M. Co., 13, 442 (1878). Nevada. location on a vein must be made by taking up a piece of land to include it. No other means are provided, and it is only upon condition of complying with the law that the locator becomes entitled to do anything. The discoverer of a vein may be allowed a reasonable time to trace its course before being compelled to define his surface claim, and in the meantime may be protected in his claim to fifteen hundred feet of the vein, but his location will never be complete until his surface claim is defined." In the absence of State or local regulation of the time to be allowed for tracing the boundaries, a reasonable time, to be determined from the circumstances of each case, will be allowed. Patterson v. Tarbell, 26, 29 (1894). Bean, J.: "The disOregon. coverer of a lode or vein of rock in place bearing precious metals, in the absence of some local rule of miners or legislative regulation allowing some time for exploration, must immediately locate his claim by distinctly marking the same on the ground, so that its boundaries can be readily ascertained, in order to hold it against a subsequent valid location peaceably made." Defendant made discovery, and instead of marking his location, merely posted a notice and continued his explorations for the purpose of determining the course of the lode. After a few days he left the ground for a short time to obtain a surveyor, and in his absence plaintiffs entered and marked a location which took in part of the ground claimed by defendant. The plaintiffs' location was held to be good. "A discoverer of a vein or lode who proceeds diligently, in good faith, to complete his location by marking its boundaries on the ground and otherwise complying with the law, will no doubt be protected in his rights as against a subsequent locator of the same ground; but no claim is made in this case that defendants did not have ample time and opportunity after their discovery and before plaintiffs' location in which to complete their location by marking the boundaries of the claim on the ground and posting the notice required by the statute. Their contention is that they were entitled to a reasonable time after the discovery in which to continue their explorations and trace the course or strike of the vein or lode. As there are no local rules or regulations governing this matter, and the act of Congress is silent on the subject, the question, it seems to us, depends upon whether mere possession and exploration are sufficient to give to the discoverer a right to hold a mining claim against one who peaceably enters and makes a valid location." Discovery and appropriation are both conditions precedent to the right to occupy, and all the acts of location, one of which is the marking on the ground, must be complete before there is a right of possession as against the United States or its grantee. South Dakota. Marshall v. Harney Peak T. M. M. & M. Co., 1, 350 (1890). Plaintiffs made discovery on July 31, 1884, and on the same day posted a notice giving the dimensions and directions of the claim. They did nothing more until Sept. 21, 1884, when they marked the location, and on September 28 recorded their location certificate. Defendant made an alleged location of part of this claim on Sept. 19, 1884. By Compiled Laws, secs. 1999, 2001, 2003, 2004, plaintiff had sixty days from the date of discovery in which to perform the acts of location prior to the record. The acts of the plaintiff on July 31 constituted a valid appropriation which withdrew the claim from location by others for sixty days and during that time vested the possession in the plaintiff. |