§ 28. Prior discovery necessary. - A prior discovery is necessary to the acquisition of any of the privileges or benefits that can be claimed under the provisions of the United States law.1 Before mineral is discovered the locator of a mining claim on public land possesses no title to such land, and although his right of possession is generally recognized by local rules and customs, 2 as there is no legislative provision for the determination of such rights prior to discovery, all questions as to the right of one's possession prior to discovery would have to be determined by the rules and customs of the mining district.3 But when the locator of a mining claim has once discovered mineral on the land which he claims, his right to perfect his claim and title to such land is recognized by the law, and when he has performed all the acts necessary to a valid location he can hold the claim as against a subsequent discoverer, even though the latter succeeds in first completing all the requisite

487) and Oklahoma (R. S. 1 Sup. 929; 26 St. 1026) are excepted from the Government Mineral Law, and mining lands in these States are acquired under patents as agricultural land. "§ 2345. The provis ions of the preceding sections of this chapter shall not apply to the mineral lands situated in the States of Michigan, Wisconsin and Minnesota, which are declared free and open to exploration and purchase, according to legal subdivisions, in like manner as before the tenth day of May, eighteen hundred and seventy-two. And any bona fide entries of such lands within the States named since the tenth of May, eighteen hundred and seventy-two, may be patented without reference to any of the foregoing provisions of this chapter. Such lands shall be offered for public sale in the same manner at the same minimum price, and under the same rights of pre-emption as other public lands." (Act of Congress Feb. 18, 1873, Ch. 159, v. 17, p. 465.) As to coal lands see §§ 2347, 2348.

1 Upton v. Larkin, 7 Mont. 449; 17 Pac. 728; R. S. U. S., Sec. 2320. 2 B. & W. Ld. Cas. p. 131. "This is the first act that goes to the acquisition of any right or title to a lode claim under the provisions of the United States law." Wade's Am. Min. Law, 41; Mor. Min. Rts., Chap. I. (10 Ed.).

3 Ante, idem. "Until mineral is discovered, the prospector may hold possession of a piece of ground under the miners' common law, but not under the laws of Congress." Wade, supra.

acts of discovery. The acts of the locator which led to the discovery cannot be questioned by a subsequent locator or an adverse claimant, and it is immaterial whether he made the discovery with or without labor on his part, for the fact of discovery is the only point to be determined.2 In order to constitute a valid discovery of a lode or vein, however, the mineral must be in place, in its natural position, and at least one wall of the vein should be found to exist; but it is immaterial whether the rock contains a large or small percentage of mineral, and it is not necessary that the labor by which the lode was discovered be performed by the locator. It is sufficient if the same was exposed to his view, and its existence known to the locator, for these facts would be tantamount to a discovery.

§ 29. Rights of discoverer. As a general rule, the first discoverer of mineral on the public land, provided he posts his discovery notice, and follows this act with the remaining acts necessary to a valid location, within the time prescribed by law, can hold the claim against all the world except the general government, or any subsequent discoverer, even though the latter should first succeed in completing all the acts necessary to a valid

1 Pellican & Dives M. Co. v. Snodgrass, 9 Colo. 339.

2 Werner v. MacNulty, 7 Mont. 30; 14 Pac. 643.

3 Foote v. Nat. M. Co., 2 Mont. 402.

The discovery of "rock in place" bearing mineral, located ten feet below the lowest river rock, will constitute a valid discovery of such mineral. Cheesman v. Shreve, C. C. D. Colo., 40 Fed. Rep. 787. Discovery must be within limits of claim located. Michael v. Mills, 22 Colo. 439, 440; King v. Amy Co., 152 U. S. 222; Walsh v. Mueller, 16 Mont. 180; Muldoon v. Brown, 21 Utah, 121; Conway v. Hart, 129 Cal. 480; 20 Am. & Eng. Enc. Law (2 Ed.), p. 706 et sub. Before a location can be made of oil, as a placer, it must be actually discovered. Olive Land Co. v. Olmstead, 103 Fed. Rep. 568. Loss of discovery forfeits claim. Gwillim v. Donnellan, 115 U. S. 45; Lindley on Mines, 338.

location of the claim. A valid location of a mining claim is made, under the United States statute, when a miner finds a lode or vein, within the approved definition, containing valuable mineral, although he does not, at the time, discover deposits of sufficient value to justify work to extract them, if he is willing to expend his time and money on the claim in the hope of finding ore sufficiently valuable to work. But as the right to the possession of a mining claim is derived only from a valid location, where there has not been a valid location, or a substantial compliance with the requirements of the local or general statute, there can of course be no possession under it.3

§ 30. Land must contain valuable deposits. The government statutes opening mineral land to prospectors contemplate that the land shall really be valuable for mineral purposes, and hence of greater utility than it would be for agricultural or other uses. The terms

1 Pellican & Dives Mine Co. v. Snodgrass, 9 Colo. 339.

2 Shreve v. Copper Bell Min. Co., 11 Mont. 309; 28 Pac. 315. But see Sullivan v. Iron, Sil. Min Co., 143 U. S. 431; 36 L. Ed, 214; 12 Sup. Ct. Rep. 555.

$ Garfield M. & M. Co. v. Hammer, 6 Mont. 53. The actual discovery of a vein or lode is essential to the valid location of a mine. McLaughlin v. Thompson (Colo. App.), 29 Pac. 816. Nor could a prior discoverer of ore on an Indian rescrvation avail himself of the discovery as against those making a valid location after the laud was opened by the government. Kendall v. San Juan Sil. Min. Co., 144 U. S. 658; 12 Sup. Ct. Rep. 779. If the mineral "known to exist" is in such small quantities as not to justify an attempt to extract it, the land upon which it is found is not "mineral land." Richards v. Dower, 81 Cal. 44; 22 Pac. 304. If land is occupied by another or has been appropriated, it cannot be located. Davis v. Weibold, 139 U. S. 507; Steele v. St. L. Sm. Co., 106 U. S. 447; I. S. M. Co. v. Mike &c. G. M. Co., 143 U. S. 394; Hall v. Arnott, 80 Cal. 348; DuPrat v. James, 65 Cal. 555; Omar v. Soper, 11 Colo. 380; Merrill v. Dixon, 15 Nev. 401; Eilers v. Boatmen, 3 Utah, 159; Wheeler v. Smith, 5 Wasb. 704; 20 Am. and Eng. Enc. Law (2 Ed.), p. 705, et sub.

"valuable deposits " and "all forms of deposit," 1 although sufficiently broad to include all mineral substances, are construed in connection with other statutes and are not held to include such deposits " as are otherwise specifically disposed of. Hence, although land may contain "valuable deposits," if a special statute applies to the mineral found, governing its acquisition by private parties, that particular statute must be complied with before the title to the ore or deposits could be acquired,3 and if the same has been reserved by the general government, or vested in the State, a private individual could not acquire such mineral, even though he should comply with the statute.4 But if the deposit of ore is such as the locator can rightfully lay claim to, the courts will give a liberal construction to the term "valuable deposit," and if the party interested is willing to expend his time and money in the extraction of the ore the courts will ordinarily presume that the same is of sufficient value to cover the term "valuable deposit." "5

§ 31. Same- Rock must be “in place.” -To constitute a valid location of a mining claim the same must be initiated by the discovery of a vein or ledge consisting of something in place, and whether this substance consists of

1 U. S. Rev. Sta., §§ 2320, 2329.

2 Wheeler v. Smith, 5 Wash. 704; 32 Pac. 784, where limestone was not held to be such deposits as could be acquired by private parties. 3 U. S. Rev. St., Sec. 2320.

4 Wheeler v. Smith (supra); State Peruvian Phosphate Co. v. Phosphate Com'rs, 31 Fla. 558; 12 So. Rep. 903.

5 Wheeler v. Smith, supra. A valid mining location can be made upon land to be granted to a State, at any time before patent is executed. Ivanhoe Co. v. Keystone Co., 102 U. S. 167; Heydenfeld v. Daney Co., 93 U. S. 634; St. Joseph &c. Co. v. Baldwin, 103 U. S. 426; Hermocilla v. Hubble, 89 Cal. 8; Wedekind v. Craig, 56 Cal. 642; 20 Am. & Eng. Enc. Law (2 Ed.), 692. But lands containing stone pass to State, unless specially reserved. South Dakota v. Vermont Stone Co., 16 Land Dec. 263.

6 R. S. U. S., §§ 2320-2322.

"

rock, clay or earth, it must generally be so colored and decomposed by the mineral elements which enter into its composition, as to render it easily discernible from the contiguous formations."1 The term "rock in place," as used in the mining statutes, has been held to mean such rock as is inclosed and embraced in the mass of the solid formation of the surrounding country, as distinguished from the float soil and debris of the surface.2 But if the rock has a fixed situs and is such that it can be easily discernible from the contiguous formations, it is immaterial how far away the mineral may have been originally formed or deposited, or that the vein or mineral formation is loose and broken or disintegrated.3

§ 32. Distinction between lode and placer claims. A vein, or lode, has been defined by eminent authority to be any zone or belt of mineralized rock, lying within boundaries clearly separating it from the neighboring rock.4 Very slight indications of ore in well-defined boundaries, would be sufficient to establish the existence of a lode,5 but in the sense that it could be traced through the neighboring rock, the vein or lode must be continuous; 6 and

1 Burke v. McDonald, 33 Pac. Rep. 49.

2 Jones v. Prospect Mount. Tunnel Co. (Nev.), 31 Pac. 642. Petroleum and gas are "in place" so long as confined to the strata, where found. Williamson v. Jones, 39 W. Va. 231; Wood Co. v. W. Va. Tr. Co., 28 W. Va. 210; 20 Am. & Eng. Enc. Law (2 Ed.), p. 698.

3 Jones v. Pros. Moun. T. Co. (supra). For validity of proceedings to locate lode claim, see: Conway v. Hart, 129 Cal. 480; 62 Pac. Rep. 44; Wiltsee v. King of Ariz. Min. & Mill. Co., 60 Pac. Rep. 896; McCann v. McMillan, 129 Cal. 350; 62 Pac. Rep. 31; Duncan v. Fulton (Colo. App.), 61 Pac. Rep. 244; Wells v. Davis (Utah), 62 Pac. Rep. 3; 20 Amer. & Eng. Enc. Law (2 Ed.), p. 703 et sub.

4 The term lode is no doubt taken from the verb lead, and in mining parlance signifies any formation of ore-bearing rock, by which the miner can be led or guided. Wade Amer. Min. Law, p. 32 et sub.

5 United States v. King, 9 Mont. 75; 22 Pac. 498. Cheesman v. Shreve (C. C. D. Colo.), 40 Fed. Rep. 787.