The location of a mining claim may be made in the name of another than the actual locator, and when so made the person in whose name it is made becomes vested with the legal title to the claim; and where at the time there was no fiduciary relation between them, and it was not made under any prior agreement to hold the claim in trust for the actual iocator, a subsequent parol promise to so hold it is void.

Consolidated Republican Mountain M. Co. v. Lebanon Colorado. M. Co., 9, 343 (1886). One who acted as the agent of another in perfecting title to a lode, having himself no interest therein, is not estopped after his agency ceased from conveying any other or different title which he thereafter acquired to the premises in controversy. Kramer v. Settle, 1, 485 (1873). If one of several coIdaho. locators of a mining claim caused notice of location to be recorded in the name of himself and others, in the absence of proof it will be presumed that the written consent of such others, as required by section five of the act in relation to mines, had been seen, and a minute made thereof by the recorder, before recording the notice.

Lockhart v. Rollins, 2, 503; 21 Pac. 413 (1889). One who holds a fiduciary relation as agent for the care, supervision, and sale of a mining claim cannot obtain an interest adverse to his principal by relocating the claim in his own name. The relocation accrues to the benefit of the principal.

Hirbour v. Reeding, 3, 15 (1877). A., B., and C. entered Montana. into a verbal contract of partnership to prospect for, locate, record, pre-empt, develop, and mine quartz lodes in Montana Territory, each to have the same interest in the property. The S. G. lode was discovered by them, but recorded by B. and C. in their names. All three worked upon and developed the ground. Afterward D. located a part of the same ground under the name of B. lode, but the conflict was settled by a conveyance by D. to B. and C. Held, the contract between A., B., and C. was not within the Statute of Frauds, and A. was entitled to an interest in the ground, which he could enforce, and which was not impaired by the conveyance by D. to B. and C. Van Valkenburg v. Huff, 1, 142 (1865). A. in making Nevada. his location used C.'s name without the latter's knowledge. By so doing he put himself in the place of servant or agent of C., and acquired no right which he could assert in himself. He could only acquire such right by abandoning the first location and relocating in his own name, in which case his right would date from this latter location.

Chase v. Savage Silver Mining Co., 2, 9 (1866). A. and B. located a mining claim in the name of themselves and four others, then they drew up a contract with prospectors, intended to be executed by all the parties, but which was signed by A. and B. only. Held, one of the other associates could ratify the location without becoming bound by the contract. A. and B. did not profess to act as his agent in making the contract, and there was no agency to be ratified.

Welland v. Huber, 8, 203 (1873). Where one located mining ground in his own name, either acting as agent for another or in pursuance of a partnership with another, by which he agreed to prospect and locate mining claims for their joint benefit, he did so under an implied

promise to convey to that other his interest upon request. The latter at once acquired a right to specific performance, which he might enforce without previous request. H., W., G., and K. entered into a partnership, by which it was agreed that the last three should furnish the means, and H. should prospect for and make location of a lode, in which all should be equally interested. H. located one thousand feet of mining ground, four hundred in his own name and two hundred in the name of each of the others. W., G., and K. each conveyed two hundred feet to H., and subsequently declared that they had sold out their interests in the mine to H. This did not constitute a conveyance of their interest in the four hundred feet which was located in H.'s name, and was no defence to an action for a conveyance thereof.

"DISCOVERY and appropriation are the sources of title to mining claims, and development by working is the condition of their continued possession." Discovery is the first step in the location of the claim, or, more exactly, it is the precedent requisite to the location of a lode claim. The provision of the Rev. Stats. 2320 is: "No location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located." No right can be acquired by location before discovery. It has been held that this rule does not apply in the case of placer claims which may be located without previous discovery of mineral.1

This decision, however, is not recognized in the Land Office, where it is held that discovery is as much a prerequisite of a placer location as of a lode location.2

Discovery in the case of lode claims may be defined as being the finding of ore or metalliferous rock in place in a defined vein or in continuous vein matter upon unappropriated land of the public domain. The finding of float or detached pieces of ore will not be considered sufficient discovery upon which to base a

1 Gregory v. Pershbaker, 73 Cal. 109. 2 Royal K. Placer, 13 L. D. 86; Ferrell Y. Hoge, 18 L. D. 81; 19 L. D. 568; Reins

v. Murray, 22 L. D. 409. And see Idaho, Act March 5, 1895, sec. 11, p. 26.

location. It must be of ore in place; but on the other hand it has been very properly held that the lode or vein discovered need not contain "pay" ore. It is sufficient if it contain even a trace of ore, if the rock in place is sufficiently encouraging to warrant an ordinarily prudent person spending his time or money upon it.1 Expert evidence is admissible to show that the vein is such as a miner would be likely to follow with the expectation of finding paying ore.

Having made such a discovery, the discoverer is entitled to make a location upon it in order to preserve to himself the fruits of his discovery. But a discovery, though made by several persons, cannot be made the basis of the location of more than one claim. Discovery made subsequent to acts of location does not validate such acts, unless no adverse rights have intervened.

The discovery must be within the limits of the claim located. There is a dictum of Justice Field in Erhart v. Boaro that a discovery outside the limits of the claim, provided its proximity and character are such as to justify a reasonable belief that the lode extends within the limits of the claim, entitles the discoverer to hold the land while completing his excavations to determine this fact and perform the necessary acts of location. Indeed, it has also been decided that the prospector can hold to the extent of his claim, if he remains in actual possession while he is prosecuting a search for mineral before the discovery of the same in place; but if he stand by and permit another to sink a shaft, or otherwise search for mineral within his boundary, and the latter first discovers the mineral, a location by the latter will take precedence over his claim.

It follows that when there is a dispute between locators as to territory which both claim; priority of proper location, based upon discovery of mineral in place, will take precedence; or even in the case when both have located it, but neither has found mineral in the territory in dispute, it will be awarded to him who first finds it in place in the vein. It is true with regard to either of these propositions that it matters not where the mineral is found, whether outcropping or in a shaft, provided it extends

1 While the statements in the text are the test of the mineral character of the true as against subsequent locators, it is land is whether it can be mined profitably questionable whether they are as against or not. See further, Chap. XIV., Div. I., agricultural claimants. In such a contest G., and Chap. XV., Div. I.

to the ground in dispute. A prior discovery in the shaft on the dip of the vein or the downward continuance beneath the surface will confer a better title to the disputed territory than the subsequent discovery of the outcrop or apex of the vein within the boundaries of the same claim; but this is not true if the discovery shaft in question is upon another location, for the top or apex of a vein must be within the boundaries of the claim in order to enable the locator to perfect his location. The lode is the principal thing; the surface ground is incident thereto.

A discovery upon land already located will avail nothing. Such land is, of course, not unappropriated, and consequently not open to location. It is otherwise if the prior location is not a valid one. All that the law of the United States requires is the discovery of a vein or lode within the limits of the claim. This alone is sufficient. But the laws of the States and Territories may require something else to perfect a discovery (Rev. Stats. 2324). In many States, accordingly, before the discoverer of ore may locate his claim, he must sink a discovery shaft of a certain depth, or such tunnel, adit, or open cut as is defined to be the equivalent of such a shaft.1

The course recommended by the Land Office is that the claimant should," prior to locating his claim, unless the vein can be traced upon the surface, sink a shaft or run a tunnel or drift to a sufficient depth therein to discover and develop a mineral-bearing vein, lode, or crevice; should determine, if possible, the general course of such vein in either direction from the point of discovery, by which direction he will be governed in marking the boundaries of his claim on the surface." L. O. Regulations, par. 14.

North Noonday Mining Co. v. United States. 1 Fed. 522 (1880), C. C. D. Cal. acquired under the statute by location before the or lode within the limits of the claim located.

Orient Mining Co., No rights can be discovery of a vein

Zollars v. Evans, 5 Fed. 172 (1880), C. C. D. Colo. The sinking of a shaft outside of the ground in dispute, and running drifts thence

1 Arizona, Act March 20, 1895, secs. 3, 5, p. 53; Colorado, M. A. S., secs 3152, 3154; Dakota, Comp. L. 1887, ch. 19, art. 1, secs. 2001, 2003; Idaho, Act March 5, 1895, sec. 3; Minnesota Gen. Stats. 1894, sec. 4067; Montana, Pol. Code 1895, sec.

3611; New Mexico, Comp. Laws 1884, sec. 1571; Act Feb. 5, 1889, p. 42; North Dakota, Rev. Codes 1895, sec. 1480-2; Wyoming, Laws 1888, ch. 40, secs 17 and 18, amended by act of Jan. 9, 1891, sec. 2, ch. 46, sec. 2.