consolidated claim. Good Return M. Co., 4 L. D. 221. 678. Labor and improvements, within the meaning of the statute, are deemed to have been made on a mining claim, whether it consists of one location or several, when the labor is performed or the improvements are made for its development, although such labor and improvements may not be upon the claim. St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673; Jackson v. Roby, 109 U. S. 440; De Noon v. Morrison, 83 Cal. 163; 23 Pac. Rep. 374. 679. Work done on a ditch outside of a placer claim, and prior to the location of the claim, cannot be considered as having been done for the benefit of the claim in the absence of a clear showing of such fact. Trickey Placer, 7 L. D. 52. 680. Local regulations requiring certain assessment work to be done on each location, held not to mean that it must be done on every two hundred feet of the entire claim, held by several persons, but on the whole claim, irrespective of the number of locations or feet. Leet v. John Dare S. M. Co., 6 Nev. 218; 4 Mor. Min. Rep. 487. 685. Labor may be done or improvements made on one of several locations for the development of the consolidated claim. St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673. 686. Where several locations are embraced in one application for patent and an expenditure of $500 is not shown on each claim, it must be made to appear that $500 has been spent for the joint benefit of the various locations. Andromeda Lode, 13 L. D. 146. 687. A locator's only right to possession of a mining claim is conditional upon the performance annually of the required amount of labor; and if such labor is not performed the ground is subject to relocation under section 2324, United States Revised Statutes, and the occupation of the ground by the original owner will not prevent relocation. Du Prat v. James, 65 Cal. 555; 4 Pac. Rep. 562; 3 West Coast Rep. 108; 15 Mor. Min. Rep. 341. (Refusing to follow Eilers v. Boatman, 3 Utah, 159; 2 Pac. Rep. 66; 1 West Coast Rep. 632; 15 Mor. Min. Rep. 462 (see 111 U. S. 356; 15 Mor. Min. Rep. 471); Weise v. Barker, 7 Colo. 178; 2 Pac. Rep. 919; 2 West Coast Rep. 108.) 688. Under miners' common law, previous to United States legislation, work was required to hold a location. Cons. Republican Mtn. M. Co. v. Lebanon M. Co., 9 Colo. 343; 12 Pac. Rep. 212; 15 Mor. Min. Rep. 490. 689. Work done on the claim by one hold 681. If plaintiffs perform the acts required by law to locate a quartz claim, except the labor, the year not having expired, and the defendants undertook to take possession of the ground, they were trespassers. Atkins v. Hendree, 1 Idaho, 95; 2 Mor. Min. Rep. 328. 682. A claim is an entirety, and it needing an equitable title is as effectual to mainnot be shown that improvements are situate upon any particular portion of the claim where it has been enlarged by amendment of the location. Lincoln Placer, 7 L. D. 81. 683. The fact that a part of $500 expendi ture was made on land before its location as a mining claim, while held under the agricultural law, does not affect the validity of an entry. Clark v. Taylor, 20 L D. 455. tain the location as if done by the legal owner. Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411. 690. Failure to perform annual labor on the calendar year does not operate to vest the senior of two conflicting locations during title to the land in conflict in the owner of the junior location, who can secure the same only by a relocation made before resumption of work by the senior locator. Oscamp v. Crystal River M. Co., 19 U. S. App. 18. 691. Placer claims on surveyed land must be located by legal subdivisions or reason S. P. R. R. Co. v. shown for failure to do so. 684. When work is resumed on an abandoned claim to avoid relocation by third parties, the work for the previous year, viz., $100 worth, should be done within a reasonable time or the claim may be relocated. Honaker v. Martin, 11 Mont. 91; 27 Pac. Rep. 397. (Re-Griffin, 20 L. D. 485. fusing to follow Belcher Cons. M. Co. v. Defferrari, 62 Cal. 160. Citing Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510; S. C., 3 Mont. 65; Little Gunnell M. Co. v. Kimber, 1 Mor. Min. Rep. 536 (Colo.). 692. The location of a claim by legal subdivisions is valid even though erroneously described, providing the abutting legal subdivisions are correctly given. Duryea v. Boucher, 67 Cal, 141; 7 Pac. Rep. 421. 693. Placer claims may be located by legal | was located therein prior to the placer applisubdivisional description, notwithstanding cation. The known existence of the lode at the suspension of the township survey by the that date must be shown as a fact by proof. Land Department. Gird v. California Oil Co., Valley Lode, 22 L. D. 317. 60 Fed. Rep. 531. 700. Where a mineral entry of a placer claim taken by legal subdivisions has been canceled as to that portion of the claim on which the discovery and improvements are 694. A location of a placer claim by legal subdivisions must be made to conform therewith in the matter of exact description of the land as shown by the township plat. Frac-situate, no further time will be allowed within tional subdivisions designated by the United States Surveyor General as lots must be so described. Reins v. Murray, 22 L. D. 409. 695. Though placer claims on surveyed lands are required to conform "as near as practicable" with legal subdivisions, they may be located along a stream or canyon, as it is not the intent of the law to compel the placer claimant to take land unfit for mining. William Rablin, 2 L. D. 764. 696. Placer locations, under section 2329, United States Revised Statutes, may include all forms of deposit except quartz veins or other rock in place, and the Land Department has properly held that said section embraces quarries of rock valuable for building purposes. Freezer v. Sweeney, 8 Mont. 508; 21 Pac. Rep. 20. which to make a discovery on every twentyacre tract remaining, or to make an expenditure of $500 thereon, as the location of the claim without such discovery was invalid. Departmental decision of May 20, 1896, In re Eliza Sweeney. 701. After the issuance of a placer patent the owner of a lode therein, located with surface ground twenty-five feet on each side, may not so amend his location as to take in a greater amount of surface ground. Becker v. Sears, 1 L. D. 577. 702. A description of a bar placer claim, giving the name of the claim and of adjoining claims, size and location in a certain canyon, held to be sufficient. Grady v. Early, 18 Cal. 108; 12 Mor. Min. Rep. 104. 703. Section 2333, United States Revised Statutes, has no application to lodes or veins within the boundaries of a placer claim which had been previously located under the laws of the United States, and are in possession of Iron Silver M. Co., 143 U. S. 431. (Quoting the locators and their assigns. Sullivan v. Noyes v. Mantle, 127 U. S. 348; 15 Mor. Min. Rep. 611. Citing Reynolds v. Iron Silver M. Co., 116 U. S. 687; 15 Mor. Min. Rep. 591; Iron Silver M. Co. v. Reynolds, 124 U. S. 374; Noyes v. Mantle, 127 U. S. 348; 15 Mor. Min. Rep. 611; Iron Silver M. Co. v. Mike & Starr G. & S. M. 697. To be excepted from a placer patent a lode need not have been located at date of the application for such patent. "It is enough that it be known, and in this respect, to come within the intent of the statute, it must either have been known to the applicant for the placer patent or known to the community generally, or else disclosed by workings and obvious to any one making a reasonable and fair inspection of the premises," etc. Iron Silver M. Co. v. Mike & Starr G. & S. M. Co., 143 U. S. 394; Sullivan v. Iron Silver M. Co., 143 U. S. 431; Reynolds v. Iron Silver M. Co., 116 U. S. 687; 15 Mor. Min. Rep. 591; Co., 143 U. S. 394.) Iron Silver M. Co. v. Reynolds, 124 U. S. 374; Noyes v. Mantle, 127 U. S. 348; 15 Mor. Min. Rep. 611. 704. The formal location of a lode is not necessary to exclude it from a placer patent, the only requisite to such exclusion by oper exist at date of application for the placer patent, and (2) that it was not included in such application. Railroad Lode v. Noyes Placer, 9 L. D. 26.. 698. One who locates a lode within a placeration of law being: (1) That it was known to claim after publication of notice of placer application acquires no right to it, and (semble) he does not acquire any right if the location is made after the placer application. Montana Copper Co. v. Dahl, 6 Mont. 131. 699. After the issuance of a placer patent the Land Department will not assume that a lode was known to exist within the placer claim because of the fact that a lode claim 705. Proof of the location of a lode claim in a placer at the date of placer application for patent is not proof of the known existence of a lode. Butte & Boston M. Co. v. Sloan, 16 Mont. 97; 40 Pac. Rep. 217. 706. A vein or lode that has never been claimed; that has not been located; that has not been marked out by metes and bounds, and in which there has been no actual development, is not excepted from a placer application and patent. Iron Silver M. Co. v. Sullivan, 5 McCrary, 274; 16 Fed. Rep. 829. 707. A known vein, to be excepted from a placer patent, must possess qualities not required to render a vein subject to location under section 2320, United States Revised Statutes, i e., it must be capable of being profitably worked. Montana Central Ry. Co. v. Migeon, 68 Fed. Rep. 811. 708. The decision of the Department, In re Juniata Lode, 13 L. D. 715 (wherein the Department consented to accept a reconveyance of the part of a patented placer claim covered by a lode location, for the purpose of issuing patent for the lode claim without suit to vacate the placer patent), is not applicable where it is desired to allow a lode patentee to reconvey a tract for the purpose of giving an unpatented lode claim its discovery. Winter Lode, 22 L. D. 362. 709. One who locates a stone placer has title to all other minerals in the claim. Freezer v. Sweeney, 8 Mont. 508; 21 Pac. Rep. 20. 710. An individual owner of a placer claim may not, by making a relocation or amended or additional location, increase the area of his claim more than twenty acres, and if the additional area taken exceeds twenty acres, the additional location is void as to the excess. Joseph M. Knapp, 2 L. D. 763. 711. Where a location of a vein or lode has been made under the law, and its boundaries have been specifically marked on the surface, so as to be readily traced, and notice of the location is recorded in the usual books of record within the district, we think it may safely be said that the vein or lode is known to exist, although personal knowledge of the fact may not be possessed by the applicant for a patent of a placer claim. The information which the law requires the locator to give to the public must be deemed sufficient to acquaint the applicant with the existence of the vein or lode." Noyes v. Mantle, 127 U. S. 348; 15 Mor. Min. Rep. 611. 712. A failure to adverse a mineral application for patent is a waiver of all claim to the ground adverse to those of the applicant, and the fact that such adverse claims are based on the same locations as those of the applicant does not vary the rule. Nichols v. Becker, 11 L. D. 8. 713. After the allowance of entry, one who has failed to file an adverse claim will not be heard to attack the validity of the location of the claim entered because of his own prior location, as he should have asserted his rights in the manner prescribed by section 2326, United States Revised Statutes. Warren Mill Site v. Copper Prince Lode, 1 L. D. 555. 714. In an adverse suit, each party must prove his right to a patent by a compliance with the statutes, State and Federal, and miners' rules and regulations in force relative to location, in order to recover a judgment for the ground in controversy. Becker v. Pugh, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304. (Second trial, 17 Colo. 243; 29 Pac. Rep. 173.) 715. A mining location made a few days prior to the end of publication of notice of application will not sustain an adverse claim. Smead v. Deadwood M. Co., 7 C. L. O. 50. 716. The plaintiff in an adverse suit may show that the location of the claim applied for is invalid for the reason that the ground contained therein was embraced in a third claim in which neither party has or claims any interest. Harrington v. Chambers, 3 Utah, 94; 1 Pac. Rep. 362; Armstrong v. Lower, 6 Colo. 393; 15 Mor. Min. Rep. 631. (Affirmed, 6 Colo. 581; 15 Mor. Min. Rep. 458.) 717. A party claiming an equitable right only in a location cannot be considered an adverse claimant. Shoo Fly Lode v. Mono Mine, 1 C. L. O. 135. 718. The failure of the first locator to adverse the application for patent by the second locator is a waiver of priority. Eureka Cons. M. Co. v. Richmond M. Co., 4 Sawy. 302; 9 Mor. Min. Rep. 578; Gustavus Hagland, 1 L. D. 591. 719. As between the conflicting locations made under the act of 1866, the act of 1872 would not operate to the injury of the owner of either. Blake v. Butte S. M. Co., 2 Utah, 54; 9 Mor. Min. Rep. 503. 720. As claims located prior to 1872 were for one vein only, an application for a claim in conflict with another need not be adversed by the owner of such other claim to protect his rights, if such claims were located on dif ferent lodes. Blake v. Butte S. M. Co., 2 adverse prior location made prior to February Utah, 54; 9 Mor. Min. Rep. 503. 721. The allegation by a protestant that the location of a mining claim applied for was invalid because of conflict with a prior location of the protestant is simply the allegation of an adverse claim, which may be tried only in the manner prescribed by section 2326, United States Revised Statutes, in a court of competent jurisdiction. Bodie T. & M. Co. v. Bechtel Cons. M. Co., 1 L. D. 584; Gowdy v. Kismet G. M. Co., 22 L. D. 624. 722. When plaintiff's ownership and right of possession are put in issue by answer, he must show affirmatively a compliance with the act of Congress and local rules and regulations, and that he had thereby made a valid | location. Garfield M. & M. Co. v. Hammer, 130 U. S. 291. See S. C., 6 Mont. 53; 8 Pac. Rep. 153. 723. A locator who has sold his claim will not be heard, over the objection of his grantee, to impeach the validity of the location made by him and subsequently sold. McGinnis v. Egbert, 8 Colo. 41; 5 Pac. Rep. 653; 15 Mor. Min. Rep. 329. 724. Under his authority as Chief Executive, the President may establish reservations embracing unappropriated mineral lands, and lands so reserved are not thereafter subject to location and purchase. Fort McGinnis Case, 1 L. D. 552 (Op. Atty. Gen.). 725. Mining claims valid and subsisting cannot be included in an Indian reservation set apart after the location of such claims. Chief Moses Indian Reservation, 9 C. L. O. 189. 726. A location of a mining claim upon land contained in an Indian reservation confers no rights upon the locator. If, after such location, the reservation is thrown open, such locator, to retain the benefit of work done previously, must relocate his claim. A regular location of the ground between the dates of the opening of the reservation and of relocation by the first occupant will defeat his right. Kendall v. San Juan S. M. Co., 144 U. S. 658. (Affirming 9 Colo. 349; 12 Pac. Rep. 198.) Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510 (S. C., 3 Mont. 65); United States v. Carpenter, 111 U. S. 347. Contra, Quigley v. Gillett, 101 Cal. 462; 35 Pac. Rep. 1040. 727. Plaintiff cannot recover any portion of ground in dispute by virtue of an attempted 28, 1877 (date of opening of Sioux reservation), if defendants were on that day in exclusive possession with the requisite discovery of a vein of valuable minerals and had performed thereafter every act necessary to constitute and maintain a valid location. Golden Terra M. Co. v. Smith (Mahler), 2 Dak. 377; 11 N. W. Rep. 97; 4 Pac. Coast Law Jour. 405; 4 Mor. Min. Rep. 390. 728. No valid location of a mining claim may be made of land while it is embraced in an Indian reservation; but if, at the date the reservation is thrown open, the locator has what would have been a valid location but for the reservation, he may cause proper record to be made, and date his location from that day. Uhlig v. Garrison, 2 Dak. 71; 2 N. W. Rep. 253; French v. Lancaster, 9 N. W. Rep. 716; 47 N. W. Rep. 395; Caledonia G. M. Co. v. Noonan, 3 Dak. 189; 14 N. W. Rep. 426; 121 U. S. 393; Golden Terra M. Co. v. Smith (Mahler), 2 Dak. 377; 11 N. W. Rep. 97; 4 Pac. Coast Law Jour. 405; 4 Mor. Min. Rep. 390. 729. The act of May 17, 1884 (23 Stat. 24), protects possessory claims to mines in Alaska theretofore initiated, though not based upon a compliance with all the provisions of the United States laws relative to the location of mining claims. Bennett v. Harkrader, 158 U. S. 441. 730. The bed of an unnavigable stream may be located under the placer laws. William Rablin, 2 L. D. 764. 731. A location of land covered by a valid subsisting location is void not only as to the prior locator, but as to all the world. Aurora Hill Cons. M. Co. v. 85 M. Co., 12 Sawy. 355; 34 Fed. Rep. 515; 15 Mor. Min. Rep. 581; Book v. Justice M. Co., 59 Fed. Rep. 106; Belk v. Meagher, 3 Mont. 65; 104 U. S. 279; 1 Mor. Min. Rep. 510. 732. An entry upon the premises in the actual possession of another, for the purpose of performing the acts necessary to constitute location and possession, amounts only to trespass, and cannot form the basis for the acquisition of title. Lebanon M. Co. v. Cons. Republican Mtn. M. Co., 6 Colo. 380; Omar v. Soper, 11 Colo. 380; 18 Pac. Rep. 443; 15 Mor. Min. Rep. 496. 733. A location of a mining claim on land within the limits of a Mexican grant sub judice confers no right, if the grant be after ward confirmed. Manning v. San Jacinto | cision was probably failure to prove the exTin Co., 7 Sawy. 418. 734. A valid location or relocation may be made only when land is open thereto. Taylor v. Middleton, 67 Cal. 656; 8 Pac. Rep. 594; 15 Mor. Min. Rep. 284; Hall v. Arnot, 80 Cal. 348; 22 Pac. Rep. 200-203; Sweet v. Webber, 7 Colo. 443; 4 Pac. Rep. 752; 4 West Coast Rep. 116. 735. The fact that ground not located is used for depositing tailings by one party will not reserve it from location by another. O'Keiffe v. Cunningham, 9 Cal. 589; 9 Mor. Min. Rep. 451. 736. A location of a mining claim in compliance with law confers a vested right which cannot be defeated by a subsequent reservation of the land by the Executive for public uses. Fort Maginnis Case, 1 L. D. 552 (Op. Atty. Gen.). 737. A location of land covered by a mineral entry is void, notwithstanding the alienage of the entryman; the entry, while it remains of record, being a segregation of the land, and such a location would not give the locator even the right of appeal from a decision dismissing his protest. Leary v. Manuel, 12 L. D. 345. 738. A location of a mining claim (where the entry therefor is canceled because of the non-mineral character of the land) may not be made the basis of a settlement claim to the same land. McIntyre v. Yokum, 16 L. D. 62. 739. Prior to August 4, 1892 (27 Stat. 348), a valid mining location could not be made of land chiefly valuable for deposits of building stone. Thorne v. Kinsey, 18 L. D. 416. 740. Prior to the act of August 4, 1892 (27 Stat. 348), a placer location could not be legally made for land containing only deposits of glass-sand and building stone, and the act of that date could not validate such a location previously made, in the face of an intervening homestead claim. Florence D. Delaney, 17 L. D. 120. istence of valuable deposits of fire-clay.] Clark v. Ervin, 17 L. D. 550. 742. An application for a lode patent was made by A. B., the owner of a conflicting lode claim, filed an adverse claim and commenced suit thereon, alleging a prior location of the ground in conflict. A. filed an answer, but thereafter amended the survey of his claim by so shortening it as to eliminate from it all conflict with the claim of B., and was allowed to make entry in the land office of the reduced area. He then withdrew his answer, and B., on testimony submitted, secured judgment for the land in controversy. Held: (1) That the withdrawal of the answer and abandonment of the application for patent as to the conflict did not remove the cause from the jurisdiction of the court. (2) That, in view of the first holding, the judgment is conclusive as between A. and B. of the priority of the location of B. Last Chance M. Co. v. Tyler M. Co., 157 U. S. 683; 71 Fed. Rep. 848. 743. A complaint in a mere action of trespass need only allege in general terms ownership in mining property, allegations of location, etc., not being required. McFetters v. Pierson, 15 Colo. 201; 24 Pac. Rep. 1076. 744. As between two conflicting locations, both defective, the prior locator has the superior right of possession and may enforce it in an action of trespass. Neuebaumer v. Woodman, 89 Cal. 310; 26 Pac. Rep. 900. 745. A. and B. claim the same vein under conflicting locations A verbal agreement was made that A. should obtain patent and convey a one-half interest to B., the expense to be borne equally. On suit to compel specific performance, such agreement was held to be within the Statute of Frauds; that relinquishing a disputed possession and simply refraining from filing an adverse claim constituted no part performance, and that even a part payment of the share of expenses of obtaining patent could not avail plaintiff, for the reason that there was no such mutuality of obligation in the agreement as would have enabled the defendant to compel such payment had the plaintiff seen fit to refuse it. Ducie v. Ford, 8 Mont. 233; 138 U. S. 587. 741. A placer location of land containing building stone was made in 1889. A preemption declaratory statement was filed by a settler the same year. In 1891 deposits of fire-clay were alleged to have been discovered. Held, that as the placer location was based upon a discovery of building stone without 746. The boundaries of a claim as patlegal warrant, the subsequent discovery of ented are conclusive as to the position of the fire-clay would not defeat the agricultural lines of location as against the patentee.. claim. [NOTE-The real reason for the de- | Waterloo M. Co. v. Doe, 56 Fed. Rep. 685. |