held by the same owner, than can a discovery in one mining claim be used as the basis of locating another. Certainly, no patent could ever be obtained to the remainder of the mining claim upon the facts shown in the California case, unless other discoveries were made within such remainder. It is manifest, that the ruling of Judge Hallett and the decision of the supreme court of California are opposed to the weight of authority. Loss of discovery results in loss of location, unless a new discovery is made within the excluded ground prior to the inception of intervening rights. Such new discovery will save the remainder from reverting to the body of the public domain. 339. Extent of a locator's rights after discovery and prior to completion of location.-When a prospector has made such a discovery as will satisfy the law and form the basis of the location, he is allowed, in most of the states and territories, a specified time in which to perform the remaining acts which are requisite to perfect the location. As to whether, in the absence of such legislation and district rules, the discoverer has any appreciable time within which to mark his boundaries and complete his location, is a subject upon which the courts differ. The supreme court of California holds, that while if the locator be on the ground actually engaged in making the location, another could not locate over him, yet in the absence of local rules authorizing it, no time is allowed to perfect the location; that until it is actually marked on the ground, the claim is not appropriated so as to prevent its acquisition by a subsequent locator.' The circuit court of appeals for the eighth circuit was called upon to determine the question upon the same evidence and the same state of facts arising in one of the California cases, and that tribunal declined to accept the rule announced by the California courts. The court of 1 Newbill v. Thurston, 65 Cal. 419; Pharis v. Muldoon, 75 Cal. 284. Newbill v. Thurston, 65 Cal. 419. appeals held, that after a discovery and posting a notice thereof, the locator had a reasonable time in which to complete the location; that what was a reasonable time would depend upon the facts of each particular case; that evidence of customs prevalent in other localities on this subject might be received for the purpose of aiding the court in its determination, and that, under the circumstances of that case, twenty days was a reasonable time.1 The doctrine announced by the circuit court of appeals is in consonance with the views expressed by the supreme. courts of Nevada' and Idaho, and accords with the spirit of the law as interpreted by the supreme court of Colorado,1 and the supreme court of the United States." To hold that the miner, as soon as he discovers a lode, must immediately stake the territory which he is entitled to claim, in order to protect it from invasion and claims of other persons, would be an unreasonable, if not impossible, requirement. As to what is a reasonable time for the completion of the location, depends upon the nature of the ground to be located, the means of properly marking, and the ability to properly ascertain the dimensions and course, or strike, of the vein.? As so much depends upon the locator determining the position of his vein in the earth and the course of its apex, and the consequences of a failure to make his location and establish his end lines, as the law contemplates, being accompanied with such serious results, it would seem that congress never intended to compel the discoverer to 1 Doe v. Waterloo M. Co., 70 Fed. 455; affirming decision of Judge Ross, Doe v. Waterloo, 55 Fed. 11. 2 Golden Fleece M. Co. v. Cable Cons. M. Co., 12 Nev. 312, 329; Gleeson v. Martin White M. Co., 13 Nev. 442; testimony of Chief Justice Beatty, Rep. Pub. Land Com. 399. 3 Burke v. McDonald, 2 Idaho, 646. 'Murley v. Ennis, 2 Colo. 300; Patterson v. Hitchcock, 3 Colo. 533; Marshall v. Harney Peak Tin M. Co., 1 S. Dak. 350. 5 Erhardt v. Boaro, 113 U. S. 527. Omar v. Soper, 11 Colo. 380. Doe v. Waterloo M. Co., 70 Fed. 455, 460. immediately proceed at his peril with the marking of his boundaries. The posting of a preliminary notice, though not specially authorized by statute, should be sufficient to protect the discoverer for a reasonable time, at least, within which he might determine approximately the allimportant facts upon which the value of his property to a great degree depends. As to what is a reasonable time, is a question of law.1 In states or localities where the laws or district regulations fix a given time within which certain acts subsequent to the discovery are required to be performed, the posting of a preliminary notice specifying the name of the lode, date of discovery, and the intention to locate the claim is equivalent to actual possession." 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 the 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.3 The effect of this rule is practically to reserve, after the discovery and during the statutory period allowed for perfecting the claim, a surface area circular in form, the radius of which may be the length claimed on the discovered lode, within which area the location may be ultimately made. Such is the manifest intent of the rule. This was the custom under the act of 1866. The miner posted his notice, claiming so many linear feet on the vein; and under the law as then interpreted, prior to fixing the situs of his lode, 1 Patterson v. Hitchcock, 3 Colo. 533, 540. 2 Erhardt v. Boaro, 8 Fed. 692. 3 Erhardt v. Boaro, 113 U. S. 527, 535; Marshall v. Harney Peak Tin M. Co., 1 S. Dak. 350; Omar v. Soper, 11 Colo. 380. by filing a diagram for patent purposes, he might follow the vein wheresoever it ran to the length claimed.1 When he filed his diagram and inclosed his lode within. surface boundaries, his right to pursue the vein on its course ceased when it passed out of his surface lines. Under the existing state of the law, the location must be marked within a certain period of time, whereupon the locator's rights become definitely fixed and confined, except as to the extralateral right, to his marked boundaries. Until this is done, however, and within the prescribed. periods, his right to be protected to the extent heretofore stated is well settled. 3 If he fails to comply with the law within the statutory period, his rights would thereafter be no greater than the rights of one in possession without discovery. He might. protect his pedis possessio against forcible intrusion and hold it as against one having no higher right; but he would be a mere occupant without color of title, and his possession must yield to any one possessing the necessary qualifications, who enters peaceably and in good faith for the pose of perfecting a valid location.' pur ARTICLE IV. THE DISCOVERY SHAFT AND ITS EQUIVALENT. 343. State legislation requiring development work as prerequisite to completion of location. 2344. Object of requirement as to- ? 345. Relationship of the discovery 2343. State legislation requiring development work as prerequisite to completion of location.-Of the precious-metal-bearing states, neither California, Oregon, Utah, Nevada, nor Washington have thus far enacted any laws. requiring work of any character to be performed as a 1Johnson v. Parks, 10 Cal. 447. See, ante, § 58. 2 See, ante, 2 60. 3 Crossman v. Pendery, 8 Fed. 693; Field v. Grey (Ariz.), 25 Pac. 793. *See, ante, "Occupancy without color of title," 216-219. prerequisite to the completion of a location;1 therefore, as to such states this article is inapplicable. The states and territories hereinafter enumerated, however, have supplemented federal legislation by requiring that certain preliminary development work in the nature of a discovery shaft, or its equivalent, shall be performed as a condition precedent to the completion of a lode location. As these state statutes are frequently important factors necessary to be considered in construing and applying decisions of the state courts, we will present an outline of the provisions found in the several states and territories upon this subject, taking the state of Colorado as a basis. of comparison. Colorado. The laws of Colorado require the filing for record of a location certificate within three months from the date of discovery. Prior to the expiration of this time, and within sixty days from the time of uncovering or disclosing the lode, the discoverer must sink a discovery shaft upon the lode to the depth of at least ten feet from the lowest part of the rim of the shaft at the surface, or deeper, if necessary, to show a well-defined crevice. Any open cut, crosscut, or tunnel which shall cut a lode at the depth of ten feet below the surface, or an adit of at least ten feet in, along the lode from the point where the lode may be in any manner discovered, is equivalent to the discovery shaft.5 Arizona.-Within ninety days from the date of discovering the lode and posting notice thereon, a discovery shaft must be sunk within the premises claimed to a depth of at least ten feet from the lowest rim of such shaft at the surface, and deeper, if necessary, until there is shown by such The legislatures of most of the mining states are in session as this treatise goes to the press. Any modification in the existing state laws which may take effect before the completion of the work, will be found in its appropriate place in the appendix. 2 Mills' Annot. Stats., 3150. 3 Id., 3155. * Id., 3152. 5 Mills' Annot. Stats., 6 Laws of 1895, p. 54, 3154. 6. |