United States, the common source of title to all. The issue of the patent to Fallon was equivalent to a determination by the United States, in an adversary proceeding to which Thomas was in law a party, that Fallon had title to the discovery superior to that of Thomas, and that consequently Thomas' location was invalid. This barred the right of Thomas to apply to the United States for a patent, and of course defeated his location. From that time all lands embraced in his location not patented to Fallon were open to exploration and subject to claim for new discoveries. The loss of the discovery was a loss of the location. It follows that the court did not err in its instructions to the jury, and the judgment is consequently affirmed.16

Section 4.-Discovery Within an Older Existing Location.

UPTON AND OTHERS V. LARKIN AND OTHERS.

1885. SUPREME COURT OF MONTANA. 5 Mont. 600, 6 Pac. 66.

WADE, C. J.-This is an action by respondents to quiet their title to a certain piece or parcel of land known as the "Camanche Quartz Mining Claim," a part of which is claimed by appellants under and by virtue of their location of the Smelter Mining Claim. The facts, as they appear by the special findings and the testimony, are in substance as follows: The Camanche claim was located January 19, 1879. The discovery shaft of the Camanche was within the limits and boundaries of the Shannon claim, as surveyed and patented at that time. At the time of the location of the Camanche claim there had not been any discovery of a vein or lode within its limits; but in running a tunnel on the claim, between the months of December, 1881, and the last of February, 1882, a vein or lode of quartz or rock in place, with one well-defined wall bearing silver or other precious metals, was discovered within the boundaries of said Camanche claim and outside the boundaries of the Shannon claim. The location of the Smelter claim, which covers and includes a portion of the Camanche claim,-the ground so included being the property in dispute in this action,-was, subsequent to the discovery of said vein or lode, in the tunnel of the Camanche claim.

1 But see the earlier case of Little Pittsburgh Consolidated Min. Co. v. Amie Min. Co., 17 Fed. 57, which held that a locator may sell the ground containing the claim's discovery shaft without invalidating the rest of the location. Of that case Messrs. Morrison & De Soto say: "A distinction can readily be drawn between this and the Donnellan case, supra [115 U. S. 45, 29 L. ed. 348, 15 Min. Rep. 482]; and yet they are so close that it may be considered dangerous to convey that portion of the lode containing the discovery without proper covenants against patenting it as parcel of another claim."-Morrison's Mining Rights, 14 ed., 49.

Upon this state of facts the appellants asked the court, among others, to give the following instruction to the jury, viz.:

"If the plaintiffs did not discover, at the time they made their location, a mineral-bearing vein with one well-defined wall, upon ground subject to location, you should find for defendants. In other words, if the plaintiffs discovered, at the time they made their location, their vein upon land belonging to Charles K. Larrabie, or any one else, then the jury, if they so find from the evidence, should find for the defendants."

The court refused to give the instruction, and upon this refusal is based one of the errors complained of.

The Camanche mining claim was a location without a discovery. At the time the location was made there had been no discovery of a vein or lode within its limits or elsewhere. The location seems to have been made by virtue of a shaft sunk within the boundaries of the Shannon, which was a patented claim, but no vein or lode had been discovered in the shaft at the time of the location, and if there had been, it would have been a discovery upon grounds belonging to other persons, and therefore could not have authorized a location, but about two years subsequent to the location, and before the location of the Smelter claim, a discovery was made in a tunnel on the Camanche claim, and outside of the Shannon boundaries, which discovery, respondents contend, validates the Camanche location. This theory of respondents is based upon an instruction given to the jury in the case of Jupiter Min. Co. v. Bodie Consolidated Min. Co., by Judge SAWYER, in the circuit court of the United States, 11 Fed. Rep. 676, as follows:

"I instruct you further, that if a party should make a location in all other respects regular, and in accordance with the laws, and the rules, regulations, and customs in force at the place at the time, upon a supposed vein, before discovering the true vein or lode, and should do sufficient work to hold the claim, and after such location should discover the vein or lode within the limits of the claim located, before any other party had acquired any rights therein from the date of his discovery, his claim would be good to the limits of his claim, and the location valid."

This instruction, if it is the law, would be applicable to a case where a person enters upon the public mineral lands and discovers what he supposes to be a vein or lode, and makes a location by virtue of such discovery before he has discovered the true vein or lode, and subsequently, and before any other person has acquired any rights, makes such discovery. Such a case would differ, in many respects, from the one under consideration. In this case, the appellants, without any right or authority, and as mere trespassers, entered upon the Shannon mining claim, which had been patented and was held and owned as private property, in which the government had no interest, and which was in no sense public land, and sunk a shaft within

the boundaries of such claim; and without any pretense of having made a discovery therein upon a supposed vein or lode, and simply by virtue of a hole in the ground upon the private property of another, made the location of the Camanche claim. The question is whether such a location becomes valid by the subsequent discovery of a vein or lode within the limits of the claim located? A discovery within the boundaries of the Shannon claim would not authorize or support the location of the Camanche claim outside of such boundaries. The discovery must be within the limits of the claim located, and must have been made on the public mineral lands. A location without a discovery does not carry with it a grant from the government to the exclusive possession and enjoyment of the ground located, nor does such a grant attach or belong to a discovery alone. The right to so possess portions of the public mineral lands, as that the right to purchase attaches thereto, comes alone from a discovery and location in pursuance of law. If a discovery is made, the right of location follows.

"A location is not made by taking possession alone, but by working on the ground, recording and doing whatever else is required for that purpose by the acts of congress, and the local laws and regulations." Belk v. Meagher, 104 U. S. 284.

If, by the law, something remains to be done before the declaratory statement or notice of location can be recorded, then there is no valid location. "A location, to be effectual, must be good at the time it is made." Id. 285. The grant of the government does not attach unless the location has been made in pursuance of law.

The act of congress authorizing the exploration and purchase of the public mineral lands provides (section 2320, Rev. St.) that no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located. The discovery thus becomes a condition precedent to the location. Recording the notice or declaratory statement in the proper county is one of the acts of location, but the statute of the territory provides that before such a record can be made there must have been a discovery of a vein or lode of quartz or ore, with at least one well-defined wall. Rev. St. p. 590, § 874.

In the case of Hauswirth v. Butcher, 4 Mont. 307, S. C. 1 Pac. Rep. 714, we held that before there can be a valid location there must be a discovery.

Van Zandt v. Argentine Min. Co., 2 McCrary 159; S. C. 8 Fed. Rep. 725. If, as held by the supreme court of the United States in the Belk Case, supra, a location, to be effectual, must be good at the time it is made, it follows that a location void at the time it is made, because of no discovery, or because the discovery was made on a claim already located and patented, continues and remains void, and is not cured or made effectual by a subsequent discovery on the claim located. The statute does not permit a location, and then a discov

ery; but in all cases the discovery must precede the location. We cannot do away with the express language of the statute, and hold that there may be a valid location of a mining claim before there has been a discovery on the claim located. And especially we cannot maintain a location made by virtue of a shaft sunk on the patented claim of another person. If, subsequent to the location of the Camanche claim, a discovery was made thereon, then was the time to have made a valid location of the claim. It is immaterial to this inquiry whether the Smelter location was valid or not. This is an action to quiet the title of the respondents, and they must show a good title. This view of the case renders it unnecessary to discuss the other questions presented in appellant's brief.

The judgment is reversed, and the cause remanded for a new trial.

BREWSTER v. SHOEMAKER et al.

1900. SUPREME COURT OF COLORADO. 28 Colo. 176, 63 Pac. 309.

ACTION by Arthur Brewster against George W. Shoemaker and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

The action concerns a strip of ground in conflict between the Bootjack and Contention lode-mining claims, situate in San Miguel county. The Bootjack is the earlier location in point of time. When its owners (defendants) applied in the land office for a patent, plaintiff, the owner of the Contention lode, filed his adverse therein, and brought this action in its support. The facts material to the present controversy may thus be stated: The location of the Contention lode was made on May 1, 1898. No question is raised as to its validity, provided it was unappropriated public domain at the time of plaintiff's entry. The location of the Bootjack lode is claimed as of the 9th day of November, 1897, and also January 28, 1898. The first discovery of mineral was upon patented ground, and not within the boundaries of the Bootjack claim, as staked. It was therefore void. On the 28th of January, 1898, a valid discovery of mineral was made within these boundaries, and an amended location certificate filed. Both these discoveries of mineral were at a point about 250 feet below the surface, and upon the same vein, and were made in driving a tunnel; the latter discovery being at a point on the vein uncovered by running the tunnel further into the mountain. It was not a statutory tunnel, that is, not located under the tunnel site act of congress, but was driven by the owners of the Bootjack lode through patented property, not belonging to defendants, and into the territory in dispute, under an arrangement made between the patentee and the tunnel owners. The vein in the tunnel dipped about three

degrees from the vertical. A calculation was made, based upon the dip of the vein as thus disclosed, and at a point on the surface where, according to such calculation, the vein should come to the surface, a discovery notice was posted, containing the statement required by statute, and also a recital that a like notice, which is admitted, was at the place of discovery (describing it), and information was given how to reach it through the tunnel. Starting with this discovery stake on the surface as the initial point, the boundaries of the claim. were designated, and the stakes set, as the statute prescribes. No tracing of the vein upwards was done, and no surface work performed, by the locators of the Bootjack claim. The vein found in the tunnel was not by actual exploitation shown to apex within the limits of the claim, but only as might inferentially appear from the calculation to which reference has been made. When the plaintiff appeared upon the ground and made his attempted location of the Contention lode, the posted notice and boundary stakes of the Bootjack were in place, and the location certificate was on file. Upon this state of facts, and with evidence as to other acts necessary to constitute a valid location of a mining claim, the case was submitted to the jury, under the instructions of the court, and a verdict returned for the defendants, upon which judgment was entered.

CAMPBELL, C. J. (after stating the facts).-Upon this appeal two questions only are important, and, as stated by appellant's counsel, they are: (1) Can a location admittedly void, because of an absence of a valid discovery of mineral, but regular in all other respects, be made good by a subsequent valid discovery of mineral within the limits of the location, made before the rights of third parties attach, but after the filing of the location certificate and all acts of location have been performed? (2) May a location of a valid mining claim be based upon an underground discovery of mineral made upon the dip of the vein at a distance of 250 feet below the surface, or any other distance, through a tunnel not statutory,—that is, not claimed under the tunnel site act of congress,-where the vein has never been opened upon the surface, or shown by actual working to have its apex within the limits of the claim as staked?

1. Plaintiffs rely upon Upton v. Larkin, 5 Mont. 600, 6 Pac. 66; Id., 7 Mont. 449, 17 Pac. 728,-which was afterwards affirmed in Larkin v. Upton, 144 U. S. 19, 12 Sup. Ct. 614, 36 L. Ed. 330. In the opinion, as reported in 5 Mont. and 6 Pac., supra, it was said that a location void at the time it is made, because of no discovery, or because the discovery was made on a claim already located and patented, continues and remains void, and is not cured or made effectual by a subsequent discovery on the claim located. Upon a second appeal of the same case, reported in 7 Mont. and 17 Pac., supra, the learned court seems to recognize the doctrine laid down by Mr. Justice Sawyer in the case of Jupiter Min. Co. v. Bodie Consolidated Min. Co. (C. C.) 11 Fed. 666, wherein it was said that in