iff and Carroll, as the locators of the claim, to sink a discovery shaft within sixty days after the date of location, and to do the other things required by statute within ninety days from that date. Failing in that, they would have no right whatever to the territory in controversy. And although Carroll may have intended to do the necessary work, and to perfect the location within the time limited by statute at the time he set up his stake, if he afterward abandoned that intention, the plaintiff can not recover. It should appear to you, from the evidence, that the plaintiff and Carroll, at the time the Hawk location was made, and continuously thereafter, held and maintained the purpose and intention to complete the location, and that they were prevented from doing so by the act of Boaro a Hull in taking possession of the place in controversy, and excluding Carroll and the plaintiff therefrom. If, by the use of reasonable diligence, the plaintiff and Carroll could have obtained possession for the purpose of doing the necessary work, it was their duty to use such diligence. If, by demand on Boaro and Hull, they could have obtained such possession, it was their duty to make such demand. But they were not bound to attempt to do the work at any other place than that which had been selected by Carroll, nor were they bound to use force to gain possession, or even to bring an action therefor. If they were excluded by Boaro and Hull from the possession of the very place selected by Carroll for his discovery, cut or shaft, with intent on the part of the latter to hold the ground against them, it is enough on this point.

Fifth-These several questions must be found for plaintiff, by preponderance of testimony, to support a verdict in his favor, for if after one has discovered a lode, and set up a notice of his claim to it, and within the time fixed by law for doing the work necessary to a valid location, another, coming to the same place and taking possession thereof to the exclusion of the first, shall not have advantage of his own wrong; nor shall the subsequent locator in such case be permitted to allege anything against the right of the first locator.

To permit the junior locator to deny the right of the other, under such circumstances, would be to deny him all remedy, which can not be allowed.

And, therefore, if the facts mentioned are established by the evidence, the regularity and validity of plaintiff's location shall be assumed. And if upon the evidence you affirm the foregoing propositions for the plaintiff, your verdict should be for him.

If you deny any or all of them, you should find for de

fendants.

The jury returned a verdict for defendants.

VAN ZANDT, Trustee, v. THE ARGENTINE MINING CO. (2 McCrary, 159. U. S. Circuit Court, District Colorado, 1881.) Admission of paper title-Defective location certificate may be amended. When there is conflicting evidence touching the facts necessary to make valid the original location of a mining claim, the paper title of grantees claiming under the original locator will go to the jury. A location certificate which is fatally defective, in omitting reference to natural object or permanent monument, may go to the jury in connection with an amended certificate correcting such defect. Practice-Amendment at the hearing. Plaintiff having declared for the entire property, it was developed on the trial that in consequence of a defective deed he had title to only two thirds of the claim: Held, that plaintiff could not, on this declaration, recover for two thirds, and that the person holding title to the other third of the claim might not, without his consent, be joined as party plaintiff, yet plaintiff might amend his complaint so as to demand but two thirds. Prerequisites to location-Discovery outside of discovery shaft. Under the statutes, Federal and State, no location of a mining claim shall be made until the discovery of a vein or lode within the limits of the claim; and a discovery shaft must be sunk thereon to the depth of at least ten feet. The mineral or ore so discovered must be in position-in the form of a lode-and not in a broken and fragmentary condition, intermingled with slide and debris on the surface. Discovery of ore after location, in a different part of the claim, will not avail.

The burden is on the plaintiff to establish the fact that ore was so found in his discovery shaft, and that the same lode is continuous to the ground in controversy.

Evidence, what shall be of prior location. Proof of the date of plaintiff's location, the others not being shown, and the fact that plaintiff's location is excepted from defendant's patents, will raise a presumption that plaintiff's location was first made.

The top or apex, on a junior discovery-Senior location on the "dip " will hold. Ordinarily the owner of a mining claim in which is found

the top or apex of a lode, may follow the vein within or without his side lines on its "dip" to any depth; yet if the same vein has been previously discovered and located on the "dip," such discovery will prevail against a junior discovery, though located on the apex of the vein..

CHAS. S. THOMAS, THOS. M. PATTERSON, JAS. B. BELFORD, attorneys for plaintiff.

H. C. THATCHER, G. B. REED, attorneys for defendant.

Action to recover possession of the Adelaide mining claim, in California District, Lake County, Colorado.

Plaintiff offered evidence to prove that the claim was located by Walls and Powell, in the year 1875. As to marking the boundaries of the claim on the surface of the ground, and the finding of valuable ore in the discovery shaft, the evidence was slight; and defendant objected to plaintiff's record title, on the ground that these facts were not shown. As there was some evidence on both points, the court held that the paper title should be received. In the original certificate of location, the description of the claim contained no reference to a natural object or permanent monument; but this was corrected in an amended certificate, and both were received, although it was held that the first was fatally defect

ive.

Having declared for the entire interest in the claim, plaintiff failed to show title from the original locators to an undivided one third interest. One of the deeds upon which he relied was not sufficiently proved, and upon defendant's objection it was excluded. Thereupon he moved for leave to make the grantor in that deed, in whom the title to the said. one third interest would rest (assuming that instrument to be void) a party plaintiff in the suit.

And this was denied by the court:

First-Because the deed, for aught that appears, was effectual between the parties to it to transfer the property; and, Second--A stranger should not be made a party to the suit, without his knowledge and consent, which is not shown.

Plaintiff then suggested to the court, that upon his declaration for the whole interest, he could take a verdict for two thirds, pursuant to sixth paragraph of section 251 of the Code

of Procedure of the State. But the court was of the opinion that section 249 of the Code, which requires the plaintiff to state the interest claimed by him, should control, and that plaintiff, having declared for the whole, could not recover an undivided interest. Nevertheless, the plaintiff was allowed to amend his complaint at the trial so as to demand but two thirds interest, and the court said that this was often done. For the plaintiff having at first asked judgment for the whole, the defendant can not now be surprised that he asks only a part.

In the further trial of the cause it appeared that the defendant claimed under two locations, called the Camp Bird and Pine, which is held by patent from the Government. Plaintiff's claim is in the general course north and south, or, to be exact, north 33° 10' east. Defendant's two claims overlapping the other somewhat transversely, are in the general course east and west. The contesting claims have the relation of the jaws of shears, and the ground in controversy is that includ ed in the space of intersection and a small part of the Adelaide claim immediately north of the intersection. The discovery shaft of the Adelaide claim is or was at the north end. of the claim and some 300 or 400 feet from the ground in controversy. By later operations and the erection of a mill and ore house in the vicinity, it had been filled, and the position of it in the claim was not very well shown. Between this shaft and the ground in controversy, there were no openings to prove that the lode extended in that direction, and whether it did so extend was strongly controverted. Defendant gave evidence to prove that no mineral was found in the discovery shaft, and that the condition of the ground was such, that if any was found there, it was broken and fragnentary, or, in other words, of the character of float mixed with the slide on the surface of the mountain. It appeared, however, that plaintiff and his grantors had maintained possession of the premises from the first; had made valuable improvements on the claim, and had carried on extensive mining ɔperations at and near the ground in controversy.

The Camp Bird and Pine discoveries were west of the ground in controversy two or three hundred feet, and, as defendant contended, on the top and apex of the lode,

which at that point extended almost directly across those locations. The defense, by answer, to the support of which many witnesses were brought into court, was that the ore in controversy was a part of the vein which defendant held by its top and apex. If what has been said to explain the position of the claims is intelligible, it will be apparent that in this view the Adelaide location extended across the vein and on its dip, below the top and apex, which was to the west of that location. And as the Adelaide location was first in time, it became a question whether a location so made, and otherwise sufficient, would be valid against a junior location. on the top and apex of the vein. This having been ruled as expressed in the charge to the jury, much testimony as to the top and apex of the vein, and the continuance of the vein to the ground in controversy, was withheld, and the case stood on the validity of plaintiff's location

Whether a vein in place was found in the discovery shaft of that location; and,

Whether the vein, if found there, extended to the ground in dispute.

The court charged the jury as follows:

HALLETT, D. J.

The questions to be determined on the evidence relate to the plaintiff's location, which he calls the Adelaide.

As to the work on the ground necessary to a valid location, the statute of the State provides, among other things, that a discovery shaft shall be sunk to the depth of at least ten feet, or deeper if necessary to find a well defined crevice. And the Federal statute declares that no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located.

The position of the plaintiff is, that Walls and Powell, the locators of the Adelaide claim, found a lode or vein in the discovery shaft sunk by them, and that position is controverted by defendant. I do not recall anything said by witnesses as to a crevice in that shaft; but there is some testimony to the effect that ore-bearing silver was found there. If you find from the evidence that such ore was taken from the Ade