controversy is, as in this case, between persons claiming the land as mineral, "the rule respecting the sufficiency of a discovery of mineral is more liberal than when it is between a mineral claimant and one seeking to make an agricultural entry, for the reason that where land is sought to be taken out of the category of agricultural lands the evidence of its mineral character should be reasonably clear, while in respect to mineral lands, in a controversy between claimants, the question is simply which is entitled to priority." Chrisman v. Miller, 197 U. S. 313-323, 25 Sup. Ct. 468, 49 L. Ed. 770.

Our conclusion is that, under the rule stated in the cases to which we have referred, the plaintiff and his grantors made a sufficient discovery of gold upon the lands in controversy to entitle them to make a valid location of the same as placer claims, under the laws of the United States. There was an actual discovery of gold upon each of the claims located. They are situated near other lands presenting the same surface indications, which at the date of the location of these claims were known to be valuable for the placer gold which they contained; and these facts, according to the uncontradicted testimony of the plaintiff and that of the witness Field, above quoted, were sufficient to justify the expenditure of money for the purpose of their exploration, with the reasonable expectation that, when developed, they would be found valuable as placer mining claims. This was in our opinion all that was necessary.

2. The action was brought under section 475 of the act of June 6, 1900, entitled, "An act making further provision for a civil government for Alaska, and for other purposes." Chapter 786, 31 Stat. 321. This section provides:

"Any person in possession, by himself or his tenant, of real property, may maintain an action of an equitable nature against another who claims an estate or interest therein adverse to him for the purpose of determining such claim, estate, or interest." Chapter 786, 31 Stat. 410.

It was incumbent upon the plaintiff, in order to maintain the action under this statute, to show an actual possession of the land in controversy, or some part thereof, at the date of the commencement of the action. Sepulveda v. Sepulveda, 39 Cal. 13; Durell v. Abbott et al. (Wyo.) 44 Pac. 647. The evidence shows that plaintiff was living upon claim No. 11, in a tent, at the time the action was commenced, and had also begun to sink a shaft thereon as a preliminary step in prospecting or developing the same as a mining claim. This constituted a sufficient possession of that particular mining claim under the statute; and we are also of the opinion that there was sufficient evidence to show plaintiff's possession of the other claims described in the complaint. These claims, as we hold, were properly located as mining claims, and in such case slight acts of dominion will constitute a sufficient possession to enable the locator to maintain an action under the section above quoted.

Judgment reversed, and cause remanded for a new trial.

VERONDA & RICOLETTO v. DOWDY.

1910. SUPREME COURT OF ARIZONA. 13 Ariz. 265, 108 Pac. 482.

ACTION by J. T. Dowdy against Veronda & Ricoletto. Judgment for plaintiff, and defendants appeal. Affirmed.

CAMPBELL, J.1o-Appellee located a placer mining claim upon the unoccupied public lands of the United States. Thereafter appellants moved into and occupied some buildings situated within the limits of the claim. This action of ejectment was brought to recover possession of the premises and for rent.

* * *

Error is assigned that the trial court found against appellants' contention that the ground covered by the claim does not contain valuable mineral deposits, and counsel cite various decisions of the Land Department and of the courts bearing upon the rights of a mineral claimant as against persons claiming the land for other purposes. The authorities cited have no application to the facts of this case, but are confined to the rights of claimants of different classes claiming under the public land laws. Appellee made a valid location, after a discovery of mineral. The appellants, being mere trespassers, making no claim to the ground under the public land laws, cannot, by showing that the land is more valuable for some purpose other than mining, oust him from possession.

The judgment of the district court is affirmed.

Section 3.-The Relation Between Discovery and Location.

CREEDE & CRIPPLE CREEK MINING & MILLING COMPANY, PETITIONER, V. UINTA TUNNEL MINING & TRANSPORTATION CO.

(See post, p. 295 for a report of the case.)

BEALS v. CONE ET AL.

(See post, p. 143 for a report of the case.)

PELICAN & DIVES MIN. CO. v. SNODGRASS.

1886. SUPREME COURT OF COLORADO. 9 Colo. 339, 12 Pac. 206.

DURING the years 1875-76, what is known in the record as the "Ontario Tunnel" was run by one Lewis. The tunnel was about 100 feet in length, and disclosed a vein of mineral at its breast. The last 50 feet, and the vein found, were in territory which at the time was Part of the opinion is omitted.

10

unappropriated. About 100 feet of drifting was also done by Lewis at or near the inner end of the tunnel. He then took no further steps towards perfecting a mining location. Appellee, Snodgrass, located a claim near the Ontario tunnel, called the "Nadenbusch," and it appears that both Snodgrass and Lewis were under the impression that the Nadenbusch claim covered the apex of the lode disclosed in the tunnel. Snodgrass made his application, and secured a patent for the Nadenbusch claim; Lewis failing to oppose the proceeding by adverse possession or protest. In February, 1881, Snodgrass went into the drift leading from the Ontario tunnel, and did a little work. He also leased the vein existing therein to other parties, but the lease was soon after thrown up. At this time he still believed the apex of the vein to be covered by the Nadenbusch patent; but, upon making surveys with a view to sinking a shaft from the surface down to the drift, he discovered that the apex was outside the Nadenbusch side line, and upon vacant ground. In March following he ran an open cut from the surface, and on the 24th, at the breast thereof, intersected the vein which was shown in the Ontario tunnel. On the same day he posted his discovery notice, and staked a claim at the Cross lode. He then sunk a discovery shaft, and June 3d filed his location certificate. He also took peaceable possession of the tunnel, and thereafter placed a door across the same where the vacant territory began, and 50 feet from the entrance. Several days. after Snodgrass commenced his open cut, Lewis began sinking a shaft from the surface, and on the day succeeding Snodgrass' discovery of mineral he also reached the vein. He then posted a discovery notice and proceeded to complete his location of the Contention lode. His location certificate was filed prior to that of Snodgrass, but it was dated March 25th, and fixed the date of discovery as December 14, 1876, when he disclosed mineral in the Ontario tunnel, instead of March 25th, 1881, when he reached the vein in his shaft. The next day, March 26th, Lewis conveyed by deed to the appellant company. Thereafter the company applied for a patent to the Contention lode. Snodgrass filed an adverse claim, and brought this suit in pursuance thereof. Upon trial, verdict and judgment were given for Snodgrass, and the company prosecuted this appeal. The remaining essential facts are sufficiently stated in the opinion.

HELM, J. The Ontario tunnel was not located in pursuance of the law relating to tunnel-sites. Lewis failed to follow up his discovery of mineral therein with any effort whatever towards completing the statutory location of a mining claim. With the possible exception of one day's work, he performed no labor in the tunnel for a period of nearly four years, although he sometimes used it as a store-house for mining tools. Under these facts we are of opinion that, as against intervening rights, he acquired no interest whatever in the disputed ground by virtue of the tunnel in question He could not, four years after discovering the vein in this tunnel, post his dis

covery notice, erect boundary stakes, file his location certificate, and have the inception of his claim, there being intervening rights, relate back to December 14, 1876, the date of such discovery.

The negotiations of Snodgrass with either Lewis or Seddon for the privilege of using the Ontario tunnel in working the Nadenbusch, a patented mine belonging to Snodgrass, are matters of no consequence in this litigation.

Neither does the mistake, which seems to have been mutual on the part of Snodgrass and Lewis, in supposing that the apex of the vein disclosed in the Ontario tunnel was covered by the Nadenbusch patent, affect the case.

We do not agree with counsel for appellant in their position that it was the duty of Snodgrass, upon discovering this mistake, to inform Lewis, and give him an opportunity to first locate the ground in controversy. As suggested by counsel for appellee, under the evidence, there is no more reason for holding that Snodgrass was estopped from locating the Cross lode without notice to Lewis, than there would be for saying that, had Lewis first ascertained the mutual mistake, it would have been his duty to inform Snodgrass, and give the latter precedence in securing the coveted vein. We therefore discard the Ontario tunnel, and the other matters connected therewith, above mentioned, from further consideration in the case. Snodgrass first disclosed a vein of mineral upon the ground in controversy by excavating from the surface. He immediately posted his discovery notice, marked the boundaries, and, in the course of seven or eight days, completed his discovery shaft. Within three months from the date of discovery he filed his location certificate for record in the proper office. It is true that Lewis completed his discovery shaft, and recorded his location certificate, at earlier dates. than did Snodgrass. But these acts did not overcome the advantage obtained by Snodgrass through his prior discovery.

It is earnestly argued by counsel for appellant that the claim. of Snodgrass was a relocation, and that the statute fixing 60 days and three months for sinking the discovery shaft and filing the location certificate, respectively, did not apply to the same. The learned counsel insist that these acts, in connection with relocation, must be performed within a reasonable time; and that, under the circumstances disclosed in this case, 70 days, the period existing between Snodgrass' discovery and the filing of his certificate for record, was not a reasonable time. In response to the foregoing argument, we have this to say: that, in the first place, there never having been a location of the ground in controversy, it cannot be treated as an abandoned claim; hence the location of Snodgrass should be regarded as original and not a relocation. But, secondly, counsel are mistaken in their view of the law regarding relocations. Construing the relocation provision in connection with the other location statutes, we are satisfied that the legislature intended to place the original

discoverer and the relocator, so far as possible, upon precisely the same footing. That body doubtless desired to give the latter 60 days, after finding the vein (technically, perhaps, there could not be a second discovery thereof) and erecting his "new location stake," to sink a discovery shaft, and three months within which to record his certificate. Such is the construction of the law already announced by this court. Armstrong v. Lower, 6 Colo. 393.

It follows from the foregoing conclusions concerning the facts and the law that the rights of Snodgrass, by virtue of his location of the ground in controversy, must be held superior to those of appellant acquired through the attempted location of Lewis. It is not necessary for us to separately discuss the specific assignments of error, as the questions presented thereon by appellant have been fully answered. The judgment will be affirmed.ii

VAN ZANDT, TRUSTEE, V. THE ARGENTINE MINING CO.

1881. CIRCUIT COURT, D. COLORADO. 8 Fed. 725.

ACTION to recover possession of the Adelaide mining claim, in California district, Lake county, Colorado.

Plaintiff offered evidence to prove that the claim was located by Walls and Powell in the year 1875. As to marking the boundaries of the claim on the surface of the ground, and the finding of valuable ore in the discovery shaft, the evidence was slight; and defendant objected to plaintiff's record title on the ground that these facts were not shown. As there was some evidence on both points, the court held that the paper title should be received. *

* *

In the further trial of the cause it appeared that the defendant claimed under two locations, called the Camp Bird and Pine, which it held by patent from the government. Plaintiff's claim is in the general course north and south, or, to be exact, north 33 deg. 10 min. east. Defendant's two claims, overlapping the other somewhat transversely, are in the general course east and west. The contesting claims have the relation of the jaws of shears, and the ground in controversy is that included in the space of intersection and a small part of the Adelaide claim immediately north of the intersection. The discovery shaft of the Adelaide claim is or was at the north end of the claim, and some 300 or 400 feet from the ground in controversy. By later operations, and the erection of a mill and ore-house in the vicinity, it had been filled, and the position of it in the claim.

"So where several competing locators are in possession of prospecting ground by common consent, the first one to make a discovery and to follow it up in due time with the acts of location has the superior right to the ground located. Crossman v. Pendery, 8 Fed. 693; Johanson v. White, 88 C. C. A. 83, 160 Fed. 901.