side of the middle of the vein, as the local laws, rules and regulations should provide, and would allow parties to make locations indefinite in length and width, predicated upon what is practically one discovery.

It is as confidently urged by the plaintiff's counsel, that inasmuch as the law of Congress does not limit the number of claims which any person or a number of persons may take on any lode, or in any district, that it is competent to base as many locations upon one discovery, or upon any number of discoveries, within an already subsisting location, as may be desired, the only condition being the compliance otherwise with the law in marking the surface boundaries, doing the requisite amount of work, etc.

Which of these propositions is the correct one?

Is there anything in the law of Congress or the local laws, rules, or regulations, preventing as many valid locations being made as a party may desire, predicated upon one discovery or several discoveries, so called, of the same vein, within the limits of the first and yet subsisting location, and this without abandonment, actual or intended, at the time, or subsequent, of the first location?

It was after much hesitancy that I was able to come to a conclusion satisfactory to myself upon this question, and after careful consideration and thought. Plausible and at first view almost conclusive reasons can be, and upon the argument were, urged upon either side. Counsel were unable to call my attention to a single adjudicated case or opinion, from any source, that could serve as a precedent, or even as an illustration. It would seem that, if there was anything in the proposition, it should have been the subject of judicial examination somewhere, but I was assured that the litigation in the older mining districts of the country arising upon the validity of mining locations was with regard to locations made prior to the acts of Congress of 1872, and of course no such question would be likely to arise under the former laws, or under the local rules and regulations in force before there was any law of Congress upon the subject.

Before addressing myself to this question, I desire to call attention to some further facts which appeared in the evidence, which may serve to illustrate the reason for this anom

aly in the making of mining locations, as this certainly was. It appeared from the evidence that the parties making the location of the Ophir were conversant with the law as it stood prior to 1872, allowing the location of but one vein, and surface ground sufficient for the convenient working of the same, in the same location, and did not understand their Golden Terra location would include and give them title to all other veins, the top or apex of which lay within the side lines of their Golden Terra claim, as would be the case by the law of 1872; hence they made this location of the Ophir, supposing it to be a parallel vein, for the protection, as they termed it, of their Golden Terra vein. This is further shown and enforced by the description contained in the deed to Durbin and Bailey, wherein, after describing the Golden Terra as a lode and not as a location or mining claim, and its situation, they add, "also a certain gold-bearing lode, running parallel to and about one hundred feet from and south-west of the aforesaid Golden Terra Lode." These descriptions and their actions in thus locating the Ophir were perfectly consistent with the laws relating to similar locations in force prior to 1872. But the Ophir claim did not run parallel to and about one hundred feet from the Golden Terra mining claim. Parts of both were included in the same boundaries and the rest adjoined. Probably the locators were old miners or had learned from old miners conversant with the former laws, but not with the present. However, I propose to consider this question from the standpoint of the legal effect of their acts, and not from what may have been the intention or inferred intention of the parties.

In determining the validity or invalidity of a location made under the circumstances of the Ophir, in view of the law as it was at the time of these locations of the Golden Terra and Ophir, I have first to determine, what lands and property does the second location give the party the possessory right to? I use the term lands, for in the law of 1872, incorporated into the U. S. Revised Statutes, it is the land containing valuable mineral deposits that is subject to occupation and purchase, it is the land to which the title is acquired by the proceedings specified in section 2325. What does such a location as the Ophir include? After as much thought as I

have been able to give to this case, I have concluded to hold, and do hold, that it includes only so much of the described claim as is exclusive of the Golden Terra exterior boundaries. Two valid and subsisting, perfect and complete locations can not exist, covering the same ground at the same time. While the first exists, all the rights possible for the party to acquire, under the law, he already possesses by the first location. The second can not give him any other or additional rights. His title to that portion of the first, included in the second location is in no way strengthened by such second location so long as the first exists complete in itself.

Let me illustrate: Supposing, instead of the possessory title inuring to him by virtue of his own acts, under the law, as it now does, the title, both possessory and otherwise, came to the locator by deed from the government, and the taking effect of the grant was the inception of the title, would a second deed give him any additional title or right?

Supposing these locators had received from the United States a patent to the Golden Terra mining claim, and afterward to the Ophir, would the patent, granting that portion of the Ophir included within the Golden Terra, have given them any further or higher title? Manifestly not. Such Such portion of the second grant would have been simply an idle act, a void grant, for the United States would have had therein nothing to convey. Their having acquired by the first location all the possessory rights which the law could give them to the land, and mineral deposits therein, included within the limits of the Golden Terra mining claim, by the second location, including a portion of the first, these locators acquired no further rights to that portion included within the first. Therefore I think the legal effect of the Ophir location was to include no more of the lands and mineral deposits therein than was included within the exterior limits of that location, outside of the exterior boundaries of the Golden Terra mining claim.

Having arrived at that conclusion, I am further of the opinion and so hold, that the spirit and intent of the act of Congress is to require as a condition precedent to a location. of a mining claim, that a discovery of a vein, bearing valuable minerals, shall first be made within the limits of such

location, independent of any other subsisting and valid location. It is the unappropriated public lands, the lands belonging to the United States, in which valuable mineral deposits are found, that are open to exploration, occupation, and purchase. It is upon such lands mining claims can be located, and in such lands a vein must be first discovered.

Again, the maximum area of a mining claim is fixed by the law of Congress at fifteen hundred feet along the vein or lode, and six hundred feet in width, subject to a lesser limit, to be fixed by the local laws, not less than fifty feet in width. If one discovery can serve to authorize locations of claims indefinitely, a complete circle of claims may be predicated upon it, encircling it like the spokes of a wheel running from the hub, and thus a claim be made to extend in fact nearly three thousand feet in diameter, by simply adding a few names and stakes and notices, and expending more money for labor and improvements; for if one discovery, which is inIcluded within all the locations, will suffice, labor and improvements at one place thus included, will also suffice. If two or more assumed discoveries within the same original location, and upon the same vein, will authorize two or more locations to include additional grounds, it follows logically that one will do equally as well. If such is the construction of the act of Congress to thus allow indefinitely locations based upon one or more discoveries in the same original location, then it opens the door to one of the very evils the law was intended to remedy, to wit, such a monopoly of the public mineral lands by prospectors and speculators as would tend to prevent their speedy and effective development. One person could, by a single shaft at one place, prevent the lands being explored or developed for an area of 3,000 feet in diameter, and the minerals therein contained from being extracted and added to the wealth of the country. I repeat, I think the spirit and intent of the law of Congress is to require a discovery of a vein of valuable mineral-bearing rock in each independent located claim. A contrary view would, in my judgment, be against the policy of the law, which was evidently framed to encourage the rapid development of the nineral resources of the country, not only by giving to the prospector and the miner an opportunity to acquire a title to

the valuable property in the search for, and discovery of which he has expended his strength and his money, but also that such developments should not be retarded by allowing a fortunate few to monopolize large tracts of such lands with the expenditure of slight effort.

The valuable mineral deposits seldom exist in large areas, and the limit given-to wit, 1,500 feet in length, and 600 feet in width-is large enough for one claim, all will admit; indeed, the miner, in the exercise of the quasi-legislative power conferred upon him, usually makes it much less.

It is claimed, further, by defendants' counsel, and I indorse it as having much reason, that the sinking of a shaft disclosing the existence of the same vein at another place in the same mining claim, as in the case at bar, is not a discovery of a vein within the meaning and intent of the act of Congress, but a mere development of a vein already discov ered.

But it is urged by plaintiff's counsel that, conceding that no discovery of a vein was made in the Ophir claim at the time of its attempted location in June, 1876, still that such discovery was made therein prior to any discovery of a vein within the defendants' mining claim, the Golden Terra Extension; and they say in substance, that while the want of a discovery would give plaintiff's grantors no rights until such discovery was made, the very moment it was made the inception of the title would take place, and what they had done before in the way of staking, recording, improving, etc., still existing, would inure to their benefit as though done at and subsequent to the time of the discovery, and the validity of the location would date from the time of such discovery.

I think the proposition thus presented is sound law. The order of the acts to be performed is non-essential, providing no intervening rights of others have accrued. I then have to determine when the discovery of the vein did occur within these respective locations. It is claimed by the defendants that the discovery of the vein in the Golden Terra Extension was made in what is known as the discovery shaft therein, on the 20th day of August, 1876. It is conceded, and admits of no doubt, that no discovery of a vein was made in the Ophir, outside of the Terra limits, until long