discovery from the surface. The miner's "indications" consisted of the development of work of his neighbors and the generally accepted geological theories.

The vertical depth from the surface to the deposits varied in different localities, so the law required the shaft to be sunk to a sufficient depth to show a welldefined crevice. These local conditions, if they were not the moving cause of the enactment, certainly proved its wisdom.

On the other hand, in the absence of this class of state legislation, alleged discoveries may be made, and after marking boundaries, the locator is allowed a year from the first day of January next succeeding the date of his location within which to do one hundred dollars' worth of work. Until that time elapses, he is not called upon to do anything. In many instances he does no work until compelled to, and about the time the period elapses, he "resumes" work which he never commenced, and each succeeding first day of January finds him again in a state of "resumption." During this period, in a large number of cases which have come under our personal observation, the location is a threat, preventing others who might be willing to develop the ground from acquiring rights. The requirement that some genuine development work should be done as a condition precedent to the perfection of a lode location is wise and beneficial, and the courts uniformly enforce the law-not with rigid strictness, but with fairness and liberality. In our judgment, this class of state legislation was contemplated by congress when it enacted the mining laws. Where such laws have been passed upon by the courts, their validity has been upheld.1

1 Sissons v. Sommers, 24 Nev. 379, 77 Am. St. Rep. 815, 55 Pac. 829; Northmore v. Simmons, 97 Fed. 386; Purdum v. Laddin, 23 Mont. 387, 59 Pac. 153. See Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. Rep. 560, and Lockhart v. Johnson, 181 U. S. 516, 526, 21 Sup. Ct. Rep. 665. But see Beals v. Cone, 27 Colo. 473, 83 Am. St. Rep. 92, 62 Pac. 948, 958.

AND

1

345. Relationship of the discovery to the discovery shaft.-As Mr. Morrison in his "Mining Rights" tersely states, "the fact of discovery is a fact of itself, "to be totally disconnected from the idea of discovery "shaft. The discovery shaft is a part of the process of "location subsequent to discovery." 2

When we speak of the discovery shaft, we mean to include in that term the various equivalents provided for by the several state enactments, as hereinbefore outlined.3

As heretofore demonstrated, the discovery must be within the limits of the location as ultimately defined, and upon land that is free and open to exploration. The same rule applies to the discovery shaft. But it is not required that the development work shall be performed at the point where the first discovery is made; neither is it required that the discovery shaft should be equidistant from the end-lines. The locator may make any shaft he may sink his discovery shaft, provided always, that he discloses within it some well-defined crevice or mineral "in place." Such a disclosure in the discovery shaft is necessary, and the mere discovery of some other vein within the limits of the claim cannot supply the absence of the one required to be exposed in the discovery

1 10th ed., p. 30.

2

Quoted in Brewster v. Shoemaker, 28 Colo. 176, 63 Pac. 309, 310, 89 Am. St. Rep.

-.

* Brewster v. Shoemaker, 28 Colo. 176, 63 Pac. 309, 310, 89 Am. St.

* Armstrong v. Lower, 6 Colo. 393; Upton v. Larkin, 5 Mont. 600, 6

Pac. 66; Morr. Min. Rights, 10th ed., p. 36.

Taylor v. Parenteau, 23 Colo. 368, 48 Pac. 505.

'Charge of Judge Hallett in Terrible M. Co. v. Argentine M. Co., as outlined in Argentine M. Co. v. Terrible M. Co., 122 U. S. 478, 481, 7 Sup. Ct. Rep. 1356. This charge is reported in 5 McCrary, 639, 89

l'ed. 583.

shaft. In neither of these cases was the court called upon to determine whether the state statute was objectionable on the ground that it conflicted with the requirements of the federal statute. It is possible that it would be held invalid on this account. The first discovery may not always indicate to the miner the appropriate place where economic considerations require his development work to be done.2 For the purpose of enabling him to determine these facts and select his place, the state laws grant him fixed periods within which to make his selection and complete his location, with the necessary condition attached, that if he fails to disclose his vein at or below the depth required by the local laws, and within the specified period, his ground will become subject to relocation by the next comer.

His original discovery will protect him in his possession during the statutory period, but if he permits that period to elapse, and fails to perform his development work and accomplish the results contemplated by law, his possession must yield to the next comer who succeeds by peaceable methods in initiating a right. As is said by Mr. Morrison, the neglect of the locator to comply with this requirement is equivalent to an abandonment of the inchoate right given by discovery. The discovery has performed its office. The perfected location rests ultimately on the completed development work. This we understand to be the rule announced by Judge Hallett in the Adelaide-Camp Bird case, and we are not

'Beals v. Cone, 27 Colo. 473, 83 Am. St. Rep. 92, 62 Pac. 948, 958; Fleming v. Daly, 12 Colo. App. 439, 55 Pac. 946.

2 Harrrington v. Chambers, 3 Utah, 94, 1 Pac. 362.

3 Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. Rep. 560; Marshall v. Harney Peak Tin Co., 1 S. Dak. 350, 47 N. W. 290; Omar v. Soper, 11 Colo. 380, 7 Am. St. Rep. 243, 11 Pac. 443.

Lockhart v. Johnson, 181 U. S. 516, 21 Sup. Ct. Rep. 665.

5 Morr. Min. Rights, 10th ed., p. 30.

Van Zandt v. Argentine M. Co., 8 Fed. 725.

aware of any adjudicated case to the contrary. It is true that the supreme court of Utah1 and the United States circuit court, ninth circuit, district of California,2 have announced that it is not necessary that the locator should show the existence of a vein in any particular place, provided it is shown to exist in some portion of the claim; but it must be borne in mind that neither the laws of Utah nor California require the performance of development work as a prerequisite to a perfected location, and in the absence of such local legislation it is not required.

An original discovery may be made in the discovery shaft, even after a location has been perfected, and this will be sufficient in the absence of intervening rights.*

5

2346. Extent of development work. In the state of North Dakota the requirements of the law are satisfied when the discovery shaft or opening shows a welldefined mineral vein, or lode, regardless of the vertical distance from the surface at which it is disclosed. The other precious-metal-bearing states require a certain depth in case of the shaft, and length in case of other openings, and this requirement must be fulfilled, although the vein is disclosed before reaching the required distance, thus giving sanction to the view hereinbefore expressed, that the object of requiring development work was twofold."

6

For example, the discovery shaft must be at least ten feet deep. It must be deeper if, at the required vertical

1Harrington v. Chambers, 3 Utah, 94, 1 Pac. 362.

North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 1 Fed. 522. · Ante, § 343.

Strepy v. Stark, 7 Colo. 619, 5 Pac. 111; Zollars & H. C. C. M. Co. v. Evans, 2 McCrary, 39, 5 Fed. 172. Ante, § 330.

Colorado, Arizona, Idaho, Montana, Nevada, New Mexico, Oregon,

South Dakota, Washington, and Wyoming.

distance from the lowest rim, the vein or crevice be not disclosed. It is hardly profitable to discuss the consequences flowing from a failure to strictly comply with the requirements as to depth if the proper vein exposure is found within the required distance. Prudent miners will not jeopardize valuable rights by failing to comply fully with the law, and courts will readily detect a manifest attempt at evasion.

The requirement as to disclosing the vein, crevice, or deposit in place, which terms are legal equivalents, is unquestionably mandatory. What constitutes such a vein, is to be determined by the rules announced by the courts in the adjudicated cases, which have been fully presented in preceding articles,' and need not here be repeated.

A former statute of Montana required the discovery shaft to disclose at least one wall of the vein,2 but this has since been repealed. It has been decided in Colorado that the requirements of the discovery-shaft laws do not involve the uncovering of the walls. When the shaft is sunk to the necessary depth on the vein, the statutory condition in that respect is fulfilled. When a given formation is determined to be a lode, the walls are a geological necessity. Their existence is as certain as that of the vein.3

In construing the provisions of the Colorado statute providing for development by adit, which in mining parlance is an opening on and along the vein used for drainage, the supreme court of Colorado has held that it was the legislative intention to substitute horizontal development in and along the lode for ten feet, in lieu of a discovery shaft of that depth, and that the distance

1 Ante, §§ 286-301.

Foote v. National M. Co., 2 Mont. 402; O'Donnell v. Glenn, 8 Mont. 248, 19 Pac. 302.

Fleming v. Daly, 12 Colo. App. 439, 55 Pac. 946.