following the requirements of the federal law. The acts to be performed in the absence of state or district regulations are few and simple. The requisites of such location are:(1) The discovery;

(2) The marking of the location on the ground so that its boundaries can be readily traced.

No notice need be posted' nor recorded; no particular kind of marking is required so long as the "boundaries "may be readily traced." The taking and holding of actual possession is wholly unnecessary, and this applies to all classes of locations, wherever made, and whether state legislation, or local rules, exist or not. Actual possession is no more necessary for the protection of title acquired by a valid mining location than it is for any other grant from the United States. Such a discovery having been made as will satisfy the law, the marking of the location on the ground including the place of his discovery completes the location and clothes the locator with the complete possessory title. No development or discovery work is required. In fact, no labor need be performed nor improvements made until within the year commencing on the first day of January succeeding the date of the location."

329. The requisites of a valid lode location under the Revised Statutes where supplemental state legislation exists. Most of the precious-metal-bearing states have availed themselves of the privilege of supplementing federal legislation, and have adopted systems more or less comprehensive. We have heretofore given an outline of the general scope and character of this legislation," from which it will be readily observed that in some of the states certain requirements exist which are not found in others. A location made with all the formalities required by the

1See, post, art. v.

"See, post, art. ix.

3 Belk v. Meagher, 104 U. S. 279, 283.

'See, post, 2 336.

3 Amend. to 2 2324 Rev. Stats. Jan. 22, 1880, 21 Stats. at Large, 61.

See, ante, ?? 248-252.

federal statute only, might be valid in California, but would not be in Colorado. As state laws form an important element of the federal system in their respective jurisdictions, it is necessary to a satisfactory presentation of the subject under consideration to give them their proper ́ place, distributed under the several appropriate heads. We think the object may be intelligently accomplished by selecting as a type of such state legislation the local code. which is the most comprehensive, and note the differences between that code and the existing laws of other states and territories. In this way we shall be enabled to present, under appropriate subdivisions approaching methodical arrangement, the rule in each state or territory touching the subject immediately under consideration, in connection with the treatment of the requirements of the congressional laws. For this purpose we select the state of Colorado, and will divide our subject, for purpose of treatment, on the basis of the Colorado mining laws, noting wherein the requirements of other states are similar, or are different. Under the laws of Colorado the following acts are required to complete a valid lode location:

(1) The discovery;

(2) The sinking of a discovery shaft of certain prescribed dimensions, or its equivalent;

(3) The posting of a notice;

(4) The marking of surface boundaries in a certain specified manner;

(5) The making of a location certificate;

(6) The recording of such certificate.'

A substantial compliance with the requirements of the laws, federal and state, as well as local rules, where they exist and are not repugnant to state or federal legislation, is a condition precedent to the completion of a valid location." 1 Strepey v. Stark, 7 Colo. 614.

2 Upton v. Larkin, 5 Mont. 600: Garfield M. & M. Co. v. Hammer, 6 Mont. 53; Strepey v. Stark, 7 Colo. 614; McKinstry v. Clark, 4 Mont. 370, 395; Noyes v. Black, 4 Mont. 527; Gleeson v. Martin White M. Co., 13 Nev. 443; Sweet v. Webber, 7 Colo. 443; Lalande v. McDonald, 2 Idaho, 283.

Mere possession without complying with the law confers no rights.1

In the nature of things, we cannot deal with local district regulations in detail. We have heretofore outlined our views as to their legitimate scope and the extent to which they may be operative. Where they exist and are in harmony with state and federal legislation they are to be considered and construed in the light of the general principles, which will be enunciated in reference to state legislation in the succeeding articles.

330. Order in which acts are performed immaterial-Time when non-essential.-The order in which the several acts required by law are to be performed is nonessential, in the absence of intervening rights.3

The failure to perform any of the given acts within the time limited by the laws or local rules may subject the ground to relocation; but if the requirements are complied with prior to the acquisition of any intervening rights, no one has a right to complain. Of course, the locator delays at his peril; but if the appropriation becomes complete before any one else initiates a right, the antecedent delay is condoned, and the right becomes perfected.1 But unless completed the attempted location is of no avail as against intervening rights, assuming, of course, that the subsequent entry for the purpose of location is peaceable and in good faith.

1 See, ante, ?? 216-219; Horswell v. Ruiz, 67 Cal. 111; Morenhaut v. Wilson, 52 Cal. 263; Chapman v. Toy Long, 4 Saw. 28; Belk v. Meagher, 104 U. S. 279, 284; Jordan v. Duke, 36 Pac. 896.

2 See, ante, ?? 268-275.

3 Golden Terra v. Mahler, 4 Morr. Min. Rep. 390; Thompson v. Spray, 72 Cal. 528; Gregory v. Pershbaker, 73 Cal. 109.

*McGinnis v. Egbert, 8 Colo. 41; North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 314; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 115; Omar v. Soper, 11 Colo. 380; McErvy v. Hyman, 25 Fed. 596; Preston v. Hunter, 67 Fed. 996, 999; Faxon v. Barnard, 4 Fed. 702; Strepey v. Stark, 7 Colo. 614; Craig v. Thompson, 10 Colo. 517.

Pelican & Dives v. Snodgrass, 9 Colo. 339; Hauswirth v. Butcher, 4 Mont. 299; Upton v. Larkin, 5 Mont. 600.

See, ante, 219.

2331. Locations made by agents. There is nothing in the Revised Statutes that prohibits one from initiating a location of a mining claim by an agent.' As the title comes from appropriation made in accordance with the law, and as it is not necessary that a party should personally act in taking up a claim, or in doing the acts required. to give evidence of the appropriation, or to perfect the appropriation, it would seem, at least in the absence of a local rule or state statute to the contrary, that such acts are valid if done by one for another, or with his assent. A location may be made without the knowledge of the principal, if there is a local rule authorizing it; otherwise, there may be antecedent authority or subsequent ratification."

A party in whose name a mining claim is located is presumed to have assented to the location,' upon the principle that a party is presumed to assent to a deed or other act manifestly for his benefit."

One of several co-locators of a mining claim may cause a notice of a mining claim to be recorded in the name of himself and others not present, and the location will be valid.®

When a location is made by one in the name of others, the persons in whose names it is made become vested with the legal title to the claim. The estate so acquired cannot be divested by making a second location leaving out the names of the original locators, so long as the first location remains valid and subsisting. If, however, they have

1 Schultz v. Keeler, 2 Idaho, 305.

2 Gore v. McBrayer, 18 Cal. 582, 587.

3 Thompson v. Spray, 72 Cal. 528; Murley v. Ennis, 2 Colo. 300; Morton v. Solambo C. M. Co., 26 Cal. 527, 534; Hirbour v. Roeding, 3 Mont, 13; Welland v. Huber, 8 Nev. 203; Moritz v. Lavelle, 77 Cal. 10; Book v. Justice M. Co., 58 Fed. 106.

Kramer v. Settle, 1 Idaho, 485; Van Valkenburg v. Huff, 1 Nev. 142, 149; Rush v. French (Ariz.), 25 Pac. 816.

504.

5 Gore v. McBrayer, 18 Cal. 582, 588.

Kramer v. Settle, 1 Idaho, 485; Dunlap v. Pattison (Idaho), 42 Pac.

Van Valkenburgh v. Huff, 1 Nev. 142, 149; Moore v. Hamerstag, 109 Cal. 122.

8 Van Valkenburgh v. Huff, 1 Nev. 115, 149; Thompson v. Spray, 72 Cal. 528; Gore v. McBrayer, 18 Cal. 582; Morton v. Solambo C. M. Co., 26 Cal. 533.

abandoned or forfeited their rights by failure to perform the annual labor required by law,' or by failure to comply with the conditions of the agreement under which the location was originally made," a relocation may be made by the original co-locator or agent in his own name.

ARTICLE III. THE DISCOVERY.

335. Discovery the source of the miner's title.

2336. What constitutes a valid discovery.

337. Where such discovery must

be made.

2338. The effect of the loss of discovery upon the remainder of the location.

339. Extent of locator's rights after discovery and prior to completion of location.

2 335. Discovery the source of the miner's title.Discovery in all ages and all countries has been regarded as conferring rights or claims to reward. Gamboa, who represented the general thought of his age on this subject, was of the opinion that the discoverer of mines was even more worthy of reward than the inventor of a useful art. Hence, in the mining laws of all civilized countries the great consideration for granting mines to individuals is discovery. "Rewards so bestowed," says Gamboa, "besides "being a proper return for the labor and anxiety of the "discoverers, have the further effect of stimulating others "to search for veins and mines, on which the general pros"perity of the state depends.""

While in some of the older countries of Europe, as in France and Belgium, the nature of the reward to the discoverer was something less than an absolute preference in the right of enjoyment, yet in Spain and Spanish-America there was guaranteed to him "an absolute right of property "in the mine which he discovers if he will take the proper "measures to denounce it and have it duly registered. No "one can have any preference over him, and he loses the

1 Saunders v. Mackey, 5 Mont. 523; Stang v. Ryan, 46 Cal. 33.

2 Murley v. Ennis, 2 Colo. 300.

3 Halleck's De Fooz on the Law of Mines, p. xxvi.

CC