350. A location may be based on a discovery of the "croppings" of a vein. Davidson v. Bordeaux, 15 Mont. 245; 38 Pac. Rep. 1075.

356. Before land may be patented under the mineral land laws, "there must be a discovery of the mineral, and a sufficient exploration of the ground to show this fact beyond question." United States v. Iron Silver M. Co., 128 U. S. 673. See 24 Fed. Rep. 568.

357. 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. 358. Mere discovery of fragments of min

352. Expert testimony is admissible to show that a claim contains such a vein as the miner discovering it would be likely to follow with the reasonable expectation of find ing paying ore. Harrington v. Chambers, 3 Utah, 94; 1 Pac. Rep. 362.

353. 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.

354. "It is the finding of the mineral in rock in place, as distinguished from float rock, that constitutes the discovery, and warrants the prospector in making a location of a mining claim." Book v. Justice M. Co., 58 Fed. Rep. 106.

355. In determining the value of land claimed to be valuable for coal, the fact that adjoining tracts are known to contain valu

not form the basis of a valid location of a lode claim. Waterloo M. Co. v. Doe, 56 Fed. Rep. 685.

359. "Under the requirements of the law, a valid location of a mining claim may be made whenever the prospector has discovered such indications of mineral that he is willing to spend his time and money in following it, with the expectation of finding ore; and a valid location of a mining claim may be made of a ledge deep in the ground, and appearing at the surface not in the shape of ore, but in vein matter only." Burke v. McDonald, 2 Idaho, 1022; 29 Pac. Rep. 98.

360. A discovery having been made, the probable value of the land for mineral may be shown by testimony as to the value of neighboring tracts. Hamilton v. Anderson, 19 L. D. 168.

361. "A valid location of a mining claim may be made whenever the prospector has discovered such indication of mineral that he is willing to spend his time and money in following, with the expectation of finding ore." He need not be "justified." Burke v. McDonald, 2 Idaho, 1022; 29 Pac. Rep. 98.

362. But something must be found in place, as rock, clay or earth, so colored, stained, changed and decomposed by the mineral elements as to mark and distinguish it from the inclosing country. Burke v. McDonald, 2 Idaho, 646; 33 Pac. Rep. 49.

363. The discovery of one mineral and a valid location carries with it all other min

erals. Freezer v. Sweeney, 8 Mont. 508; 21 Pac. Rep. 20.

364. Prior to the discovery of minerals prospectors have equal rights. Hibschle v. Gildersleeve, 8 C. L. O. 65 (Colorado court).

365. The discovery assumed to be upon the center of the vein in the absence of exploration and development showing a different condition. Flagstaff S. M. Co. v. Tarbett, 98 U. S. 463; Helvecia Lode, Sickel's Min. Dec. 40; Hope M. Co., Sickel's Min. Dec. 122; G. B. R. Lode, Sickel's Min. Dec. 119.

366. Under section 2320, United States Revised Statutes, it is the finding of mineral in rock in place that constitutes the discovery, and it is not necessary that the vein or lode should contain mineral of such nature that a practical miner, if he encountered it, would feel justified in following it up, with the reasonable expectation of finding paying mineral. McShane v. Kenkle, 44 Pac. Rep. 979 (Montana).

367. "The law will not distinguish between different kinds and classes of ores, if they have appreciable value in the metal for which the location was made. Nor is it necessary that the ores shall be of economical value for treatment. It is enough that it is something beyond a mere trace which can be positively and certainly verified as existing in the ore." Stevens v. Williams, 1 McCrary, 480; 1 Mor. Min. Rep. 557. Quoted in Shreeve v. Copper Bell M. Co., 11 Mont. 309; 28 Pac. Rep. 315. Cases cited: Erhardt v. Boaro, 113 U. S. 527; 4 Mor. Min. Rep. 432; Iron Silver M. Co. v. Cheesman, 116 U. S. 529; Eureka Case, 4 Sawy. 302; 9 Mor. Min. Rep. 578; North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411; Harrington v. Chambers, 3 Utah, 94; 1 Pac. Rep. 362. (See

111 U. S. 350.) Territory v. Mackey, 8 Mont. 168; 19 Pac. Rep. 395; Merrill v. Dixon, 15 Nev. 401.

388. On adverse suit, either party may show the invalidity of the other's location from any cause, even by showing the discovery workings to be situate on ground covered by a valid prior location of a third party. Armstrong v. Lower, 6 Colo. 393; 15 Mor. Min. Rep. 631. (Affirmed, 6 Colo. 581; 15 Mor. Min. Rep. 458.) Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482.

369. "A location since the 10th day of May, 1872, based on a discovery made within the limits of a claim properly located, and not abandoned or lost by failure to perform the labor thereon required by law, is an invalid 2322, the locator of such claim has the exlocation; for by the provisions of section clusive right of possession and enjoyment of all the surface included within the lines of the location, and of all veins, lodes or ledges

throughout their entire depth, the top or

apex of which lies inside of such surface lines.' If the locator then has the exclusive right of the possession and enjoyment, how can a prospector go on such claim and make a valid discovery?" Branagan v. Dulaney, 2 L. D. 744.

370. A valid location cannot be based upon a discovery made within the limits of a prior subsisting location. It must be made upon the unoccupied and unappropriated public domain, and the mere fact that the prior locator does not object is immaterial unless he abandons the ground in conflict. Armstrong v. Lower, 6 Colo. 393; 15 Mor. Min. Rep. 631. (Affirmed, 6 Colo. 581; 15 Mor. Min. Rep. 458.)

371. 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 (Colorado).

line of a claim and partly within the limits 372. A discovery made in a shaft on the 7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. of a prior location is valid. Upton v. Larkin, Rep. 404; S. C., 5 Mont. 600; 6 Pac. Rep. 66.

373. 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.

374. The sinking of a discovery shaft on a vein already located, within such location, confers no rights, as only one discovery of mineral may be made upon a lode claim for

the purpose of basing a location. Golden Terra M. Co. v. Smith (Mahler), 2 Dak. 377; 11 N. W. Rep. 97; 4 Pac. Coast Law Jour. 405; 4 Mor. Min. Rep. 390.

375. The validity of a location based upon a discovery made within a prior location, with the consent of the prior locator, may not be questioned on that account by a grantee of such prior locator, as the assent of his grantor to the making of the second discovery and location operated as an abandonment of his conflicting rights. Golden Terra M. Co. v. Smith (Mahler), 2 Dak. 377; 11 N. W. Rep. 97; 4 Pac. Coast Law Jour. 405; 4 Mor. Min. Rep. 390.

376. A relocator of an abandoned claim may base the relocation on a discovery of mineral already made by the original locator, and may adopt the original markings of the claim. (But in Colorado he must perform ten feet of development work.) Armstrong v. Lower, 6 Colo. 393; 15 Mor. Min. Rep. 631. (Affirmed, 6 Colo. 581; 15 Mor. Min. Rep. 458.)

377. A location based upon a discovery made upon a prior location may be validated by a relinquishment of the ground including such discovery, by the senior locator, before the intervention of an adverse right. McEvoy v. Hyman, 25 Fed. Rep. 596; 15 Mor. Min. Rep. 397.

378. A mineral entry of two locations based on one discovery of mineral in a discovery shaft on the line between two locations will be canceled. Poplar Creek Cons. Quartz Mine, 16 L. D. 1.

379. A location based on a discovery made within the limits of a prior subsisting location is invalid. Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482; Branagan v. Dulaney, 2 L. D. 744.

380. Where it appears that the ground on which are situate the discovery and improvements of an entered claim has been patented as part of another claim, the entryman may furnish proof of discovery of a lode outside of the patented conflict and that the requisite expenditure has been made on claimed ground. Gustavus Hagland (on review), 1 L. D. 593; Spur Lode, 4 L. D. 160.

381. The exclusion from application for patent of that portion of the claim containing the discovery renders it incumbent on the applicant to show a discovery of mineral

upon the claimed ground. Cayuga Lode, 5 L. D. 703; Silver Jennie Lode, 7 L. D. 6.

382. 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.

383. Where the discovery is on excluded ground, and none other is shown, the entry will be canceled, though entryman may own such excluded ground. Lone Dane Lode, 10 L. D. 53.

384. 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; 5 Pac. Rep. 653; 15 Mor. Min. Rep. 329.

385. A discovery on excluded ground is not sufficient to support a location. There must be shown a discovery on claimed ground. Spur Lode, 4 L. D. 160; Cayuga Lode, 5 L. D. 703; Silver Jennie Lode, 7 L. D. 6; Antediluvian Lode & Mill Site, 8 L. D. 602; Independence Lode, 9 L. D. 571; Lone Dane Lode, 10 L. D. 53.

386. A discovery made on ground covered by a location excluded from application for patent therefor is a good basis for a subsequent location. Adams Lode, 16 L. D. 233.

387. A second discovery within the limits of a legal location does not affect the rights of the first locator. Hibschle v. Gildersleeve (U. S. Dist. Court, Colo. 1880), 8 C. E. O. 65.

(1) Tunnel.

(See TUNNEL, p. 66.)

388. A tunnel claimant has no cause for

adversing the application of a lode claimant who has made a discovery outside of the line of the tunnel, and whose location lies across the line of the tunnel, unless the lode has been discovered in the tunnel. Hope M. Co. v. Brown, 7 Mont. 550; 19 Pac. Rep. 218. (Overruled, S. C., 11 Mont. 370; 28 Pac. Rep. 732, wherein it is held that patent proceedings by the lode claimant will be suspended until development of the lode in the tunnel or the abandonment of the tunnel right, and (semble)

the lode claimant may be restrained from taking ore from the line of the tunnel in the meantime. Refusing to follow Corning T. & M. Co. v. Pell, 4 Colo. 507; 14 Mor. Min. Rep. 612.)

389. Before a tunnel claimant, under section 2323, United States Revised Statutes, ac quires any right to a lode it must be discovered in the tunnel. Corning T. & M. Co. v. Pell, 4 Colo. 507; 14 Mor. Min. Rep. 612.

390. On discovery of lode in the tunnel, within three thousand feet of the face thereof, the tunnel claimant may locate one thousand five hundred feet of such lode, subject only to the requirement that his discovery must be covered by his claim. Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 66 Fed. Rep. 200. 391. A location on the surface, based on a tunnel discovery, will relate back to the loca tion of the tunnel claim, and cut out an intervening surface location of the same lode. Rico-Aspen M. Co. v. Enterprise M. Co., 53 Fed. Rep. 321.

392. A discovery of a lode in a tunnel gives the right to make a surface location thereof, just as a discovery on the surface would do. Rico-Aspen M. Co. v. Enterprise M. Co., 53 Fed. Rep. 321.

393. A discovery made in a tunnel held in accordance with the provisions of section 2323, United States Revised Statutes, gives the same right to the discoverer as a discovery on the surface, viz., the right to locate a surface claim of one thousand five hundred by six hundred feet. Hope M. Co. v. Brown, 7 Mont. 550; 19 Pac. Rep. 218; Ellet v. Campbell, 18 Colo. 510; 33 Pac. Rep. 521.

394. A location based on a discovery in a tunnel not on the claim is invalid. Armstrong v. Lower, 6 Colo. 393; 15 Mor. Min. Rep. 631. (Affirming 6 Colo. 581; 15 Mor. Min. Rep. 458.)

395. A lode discovered in a tunnel in accordance with the provisions of section 2323, United States Revised Statutes, and of which a location notice was posted at the mouth of the tunnel, and duly recorded, need not be located by the discoverer on the surface to protect his right, and a subsequent locator on the surface acquires no rights. Ellet v. Campbell, 18 Colo. 510; 33 Pac. Rep. 521.

396. When in running a tunnel a lode is struck, the same proceedings are required as in cases of a discovery on the surface, in the

matter of location. David Hunter, 5 C. L. O. 130.

397. Discoverers of veins from the surface

on the line of a prior tunnel will be restrained until it appears that the veins will not be discovered in the tunnel, or until such tunnel rights have been abandoned. Hope M. Co. v. Brown, 11 Mont. 370; 28 Pac. Rep. 732. (Hope M. Co. v. Brown, 7 Mont. 550; 19 Pac. Rep. 218, reviewed and overruled.)

(2) Record.

398. Failure on the part of a senior discoverer to record his location notice within

the time prescribed by law will not validate an overlapping location based on a junior discovery, in the absence of a relocation of the conflict by the junior discoverer. Omar v. Soper, 11 Colo. 380; 18 Pac. Rep. 443; 15 Mor. Min. Rep. 496.

399. The record of a location certificate is presumptive evidence that a discovery was made as alleged therein. Cheesman v. Shreeve, 40 Fed. Rep. 787.

(3) Agricultural Lands.

(See AGRICULTURAL CLAIM, p. 376.)

400. An agricultural claimant may take tracts rendered non-contiguous by the exclusion of land discovered to be mineral subsequent to his original entry. Lannon v. Pinkston, 9 L. D. 143.

401. A discovery of mineral subsequent to the date of a hearing as to the character of the land may be set up as a basis for a second hearing. Werle v. Murphy, 15 C. L. O. 183.

402. Where an agricultural entry is contested for alleged mineral character of the land entered, an actual discovery of valuable mineral must be shown. Carron v. Curtis, 5 C. L. O. 3.

403. A discovery on an adjoining tract is of no effect to establish the mineral character of the land involved. Departmental decis ion of March 17, 1891, In re Udall v. Jepson; Departmental decision of July 13, 1891, In re Bryan v. Central Pacific R. R. Co.; Commissioners of King County v. Alexander, 5 L. D. 126.

404. A discovery of mineral after title has passed will not divest the same. State of Col

orado, 7 L. D. 459; Abraham L. Miner, 9 L. D. 408.

suance of the patent therefor, under a grant excepting mineral lands, will exempt the land from the operation of the grant. Barden v. N. P. R. R. Co., 154 U. S. 288 (strong dis

406. Under a grant of school lands, "the State's title vests, if at all, at the date of the completion of the survey (Cooper v. Roberts, 18 How. 173; Virginia Lode, 7 L. D. 459), and if the land, although in reality mineral, was not then known to be mineral, the subsequent discovery of its mineral character would not divest the title which had already passed." Abraham L. Miner v. State of California, 9 L. D. 409; State of California v. Poley, 4 C. L. O.

18; J. Dartt, 5 C. L. O. 178; Town of Silver Cliff v. State of Colorado, 6 C. L. O. 152; State of Colorado, 6 L. D. 412; 7 L. D. 490; Virginia Lode, 7 L. D. 459; Warren v. State of Colorado, 14 L. D. 681; Pereira v. Jacks, 15 L. D. 273; Frees v. State of Colorado, 22 L. D. 510; Com'r to J. A. Coffer, Oct. 3, 1891.

407. A State admitted before the survey of lands is entitled to sections 16 and 36 under its school grant if they are not known to be mineral at date of the approval of the survey, and a discovery of mineral thereon, subsequently, will not defeat the right of the State. The State acquires no rights, however, by an irregular survey which is approved and thereafter suspended. Virginia Lode, 7 L. D. 459.

408. If lands claimed by a State under the grant excepting mineral lands are discovered to be mineral before certification to the State, they do not pass under the grant. State of Colorado, 7 L. D. 490 (contrary to other Departmental decisions, and expressly overruled in case of Abraham L. Miner v. State of California, 9 L. D. 408).

11 L. D. 238; North Star M. Co. v. C. P. R. R. Co., 12 L. D. 608; S. P. R. R. Co. v. Allen G. M. Co., 13 L. D. 165; N. P. R. R. Co. v. Champion Cons. M. Co., 14 L. D. 699; O'Conner v. N. P. R. R. Co., 15 L. D. 247; Winscott v. N. P. R. R. Co., 17 L. D. 274; N. P. R. R. Co. v. Marshall, 17 L. D. 545. See, also, Samuel W. Spong, 5 L. D. 193.

410. The right of a railroad company, under its grant, is not defeated by the discovery of mineral subsequent thereto. FrenBarden v. N. P. R. R. Co., 154 U. S. 288 coeur v. Newhouse, 40 Fed. Rep. 618. Contra, (strong dissenting opinion); C. P. R. R. Co. v. Valentine, 11 L. D. 238.

411. Where mineral has been discovered on land after the tract has been embraced in a homestead entry, a mineral claimant will be limited to twenty-five feet of surface ground on each side of the middle of the vein. Ryan v. Buivert, 14 C. L. O. 283.

412. The character of land (whether mineral or non-mineral) embraced in a homestead claim may be questioned up to the date of final entry. A discovery of its mineral character between the submission of defective proof and date of final entry will defeat the homestead claim. Spratt v. Edwards, 15 L. D. 290.

413. A discovery of the mineral character of land embraced in an original homestead entry will defeat the entry. Dickinson v. Capen, 14 L. D. 426.

414. The known character of the land at the date of final homestead entry determines whether or not it should be excluded from the homestead claim because of its mineral character, the discovery of mineral subsequent to such final entry being immaterial. Rea v. Stephenson, 15 L. D. 37.

415. The discovery that land is valuable for coal, after final homestead entry, will not reserve it from patenting under the homestead entry. Nicholas Abercrombie, 6 L. D. 393.