such a case a subsequent valid discovery, made before any other person has acquired any rights, will make such a location good. But the court proceeds at the second hearing, with the case then in hand, to say that the evidence sought to be introduced at the trial to show a subsequent valid discovery was properly rejected because it appeared or at least it was not clear that the contrary was true-that the subsequent discovery to which the evidence was directed was made after the application for patent was filed. And the court held that a patent ought not to issue upon a discovery made after application. It also declared that the offer of evidence was not made in good faith, but to enlist the sympathy of the jury. In the review of the case by the supreme court of the United States there is nothing said to give color to the position taken here by appellant's counsel. Whether the owners of the Bootjack lode, in connection with the second discovery of mineral,—the one within its exterior boundaries,— in January, 1898, supposed they were merely amending the former attempted location by correcting the description and filing an amended location certificate, or whether they intended to make, and supposed they were making, a relocation of an abandoned claim, is immaterial; for, before the rights of third persons, including the claimant, attached, it is admitted that they had taken all of the steps which, under the federal and state statutes, constitute an appropriation of a lode mining claim. The order of time in which these several acts are performed is not of the essence of the requirements, and it is immaterial that the discovery was made subsequent to the completion of the acts of location, provided only all the necessary acts are done before intervening rights of third parties accrue. All these other steps having been taken before a valid discovery, and a valid discovery then following, it would be a useless and idle ceremony, which the law does not require, for the locators again to locate their claim, and refile their location certificate, or file a new one. In the case of Beals v. Cone, 62 Pac. 948, we have ruled against appellant's contention. The United States circuit court of appeals for the Eighth circuit, in Erwin v. Perego, 35 C. C. A. 482, 93 Fed. 608, in a case coming up from Utah, has reached the same conclusion. We know of no statutes of this state that require a different ruling. Other authorities sustaining our conclusion are Craig v. Thompson, 10 Colo. 517, 16 Pac. 24; North Noonday Min. Co. v. Orient Min. Co. (C. C.) 9 Morr. Min. R. 529, 1 Fed. 522; Strepey v. Stark, 7 Colo. 614, 5 Pac. III; Mining Co. v. Mahler, 4 Morr. Min. R. 390; Jupiter Min. Co. v. Bodie Consol. Min. Co. (C. C.) 4 Morr. Min. R. 411, II Fed. 666; 1 Lindl. Mines, § 335 et seq; Morr. Min. R. (9th Ed.) 28, and cases cited.

2. In Ellet v. Campbell, 18 Colo. 510, 33 Pac. 521, it was held that when a tunnel claim has been duly located under the provisions of the acts of congress, and the owner thereafter discovers a mineral lode therein, he is not bound to make another discovery and location

of the lode from the surface, in order to be protected against a subsequent surface location of the same lode. This case was affirmed by the supreme court of the United States in Campbell v. Ellet, 167 U. S. 116, 17 Sup. Ct. 765, 42 L. Ed. 101. This, however, is not controlling of the proposition now under consideration. In the case at bar the defendants were not attempting to locate a tunnel site under the acts of congress. The mouth of the tunnel was not upon the Bootjack claim, and the entire work was done upon patented land by the plaintiffs under agreement with the patentee. The point of discovery was over 800 feet from the mouth of the tunnel. As well said by Mr. Morrison in his work on Mining Rights (9th Ed.) 30: "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." Certainly there is no requirement of the federal statute that a vein shall be discovered from the surface. The only requirement in that respect is that the place of discovery shall be within the limits of the claim. Under our statute (Mills' Ann. St. § 3154; Gen. St. 1883, § 2403) where a lode is cut at a depth of 10 feet below the surface by means of an open cut, cross cut, or tunnel, it is the same as if a discovery shaft were sunk on the vein to that depth. Gray v. Truby, 6 Colo. 278; Development Co. v. Van Auken, 9 Colo. 204, 11 Pac. 80. The question here is not whether a subsequent discovery on the apex of the lode would take precedence of the prior discovery on the dip, for there is no claim here that plaintiff's subsequent location is on the apex of the same lode on whose dip defendants' discovery was theretofore made. But the question is whether a valid location can be made by a discovery at a point 250 feet beneath the surface, when it is followed up by a marking of the boundaries on the surface as though the discovery had been made from the surface, and by the doing of the other acts which the statute requires, though no surface work is done, and no actual tracing of the vein to the surface attempted. The precise question has not, to our knowledge, been decided by a court of last resort, but we do not see why a location such as has been made by the defendants is not good. It has been held that where the discovery is made in a discovery shaft along the course of a vein, and the surface boundaries marked with reference to its course or strike as disclosed in the discovery shaft, the presumption is that the vein continues on the same course throughout the limits of the claim. When, as in the case at bar, the discovery is made underground upon the dip of the vein, it is fair to assume, in the absence of a contrary showing, that the vein extends upward at the same angle; and a marking of the boundaries by making the place at which the vein, if continued to the surface, would be disclosed, the initial point, is a sufficient compliance with the law. That the mouth of the tunnel was not upon the claim we do not consider important. That the tunnel was driven through patented property,

not belonging to the owners of the lode discovered, is something of which the plaintiff cannot complain. If the owners of the land through which the tunnel is driven give their consent thereto, a third person may not object. Sufficient notice was conveyed to the public of this location. The defendants not only placed in the tunnel, at the point of discovery, a discovery stake and notice, but also posted the discovery notice on the surface, containing not only the things required by statute, but in addition informing the public of the exact spot where the discovery was made, and furnishing information how to reach the same through the tunnel, where inspection might be had. We do not think it necessary, in a discovery which is made underneath the surface, that the locator shall, at the risk of losing his claim, demonstrate by actual working that the top or apex is within the limits of his location. In the absence of some proof to the contrary, the court will presume, as we have said already, that the vein continues in its upward course on the same angle to the surface; and if the locator selects and traces his boundaries with reference to this place on the surface, so as to include it within the limits of his claim, nothing further in this respect is required. On this last point Armstrong v. Lower, 6 Colo. 393, and Wakeman v. Norton, 24 Colo. 192, 49 Pac. 283, though not deciding the precise question, are, in principle, authority for the holding here. The judgment of the court be-/ low is in harmony with our views, and it is affirmed.

SIERRA BLANCA MINING & REDUCTION CO. v.
WINCHELL.

1905. SUPREME COURT OF COLORADO. 35 Colo. 13, 83 Pac. 628.

Action by the Sierra Blanca Mining & Reduction Company, a corporation, against Howard H. Winchell, in support of an adverse against defendant's application for a patent to the Cripple Creek lode mining claim. From a judgment for defendant, plaintiff appeals. Reversed.

GABBERT, C. J.-During the progress of the trial the parties stipulated that the conflict between the Keystone and Cripple Creek lodes should follow the result of the contention between the Jessie Mac and the Cripple Creek, and that no testimony need be given as to the Keystone conflict with the Cripple Creek lode. The controversy is thus narrowed to a determination of the rights of the parties in the conflict between the Jessie Mac and Cripple Creek. The judgment must be reversed, because of the refusal to give an instruction requested by plaintiff. This instruction was to the effect that if it appeared from the testimony that the locators of the Jessie Mac discovered mineral and posted notice of discovery, and that the loca

tion of the Cripple Creek was based upon a discovery and location. within the ground claimed by the Jessie Mac according to its notice of discovery, made within 60 days from the date such notice was posted, then the location of the Cripple Creek lode was invalid.

This was an important question, and no instruction was given which fully and clearly called the attention of the jury to this point. There was testimony on the part of the plaintiff (which does not appear to have been contradicted) to the effect that the discovery. notice of the Jessie Mac was posted on the 30th day of June, 1899. The testimony on behalf of the defendant was to the effect that the discovery notice of the Cripple Creek was posted on August 28th following. The ground claimed by the latter was within the boundaries of the Jessie Mac, as indicated by the notice of discovery thereon. According to the stipulation of the parties, mineral in place was discovered in what was claimed to be the respective discovery cuts of the two claims. The other acts necessary to perfect a mineral location were contested, especially the sufficiency of the discovery work on the Jessie Mac lode. Whether or not, however, this work was performed was not controlling. If the discovery and location of the Cripple Creek was within the boundaries of the Jessie Mac, as evidenced by its discovery notice, and such discovery and location was made within 60 days of the date the Jessie Mac notice of discovery was posted, then the Cripple Creek location was invalid, and this invalidity would not be cured by the failure of the claimant of the Jessie Mac to perform the necessary discovery work.

A location based upon a discovery within the limits of an existing and valid location is void. Sullivan v. Sharp (Colo. Sup.) 80 Pac. 1054. A location notice properly made and posted upon a valid discovery of mineral is an appropriation of the territory therein specified for the period of 60 days. During this period, no one can initiate title thereto which would be rendered valid by the mere failure of the first appropriator to perform the necessary discovery work within the time prescribed by law. Omar v. Soper, 11 Colo. 380, 18 Pac. 443, 7 Am. St. Rep. 246.

Judgment reversed.

۱۲۰

CHAPTER IV.

THE LOCATION OF LODE AND OF PLACER CLAIMS.

"The acts of location normally follow discovery and in general consist of (1) the posting of a discovery notice; (2) the sinking of a discovery shaft or its equivalent; (3) the marking of boundaries; (4) the posting of a location notice; (5) the recording of the proper papers."-Costigan, Mining Law, 176. "The acts of location for placers * * * are in the main the same as those for lodes, though only a few states require discovery work on placers." Costigan, Mining Law, 247.

Section 1.-Discovery Work.

COLORADO STATUTES.1

Before filing such location certificate the discoverer shall locate his claim by: First-Sinking a discovery shaft upon the lode to the depth of at least ten feet from the lowest part of the rim of such shaft at the surface, or deeper, if necessary to show a well-defined crevice.-Rev. St. Colo., 1908, § 4197.

The discoverer shall have sixty days from the time of uncovering or disclosing a lode to sink a discovery shaft thereon-Rev. St. Colo., 1908, § 4199. Any open cut, cross cut or tunnel which shall cut a lode at the depth of ten feet below the surface, shall hold such lode, the same as if a discovery shaft were sunk thereon, or an adit of at least ten feet in along the lode from the point where the lode may be in any manner discovered, shall be equivalent to a discovery shaft.-Rev. St. Colo., 1908, § 4198.

The relocation of abandoned lode claims shall be by sinking a new discovery shaft and fixing new boundaries in the same manner as if it were the location of a new claim; or the relocator may sink the original discovery shaft ten feet deeper than it was at the time of abandonment, and erect new or adopt the old boundaries, renewing the posts if removed or destroyed. In either case a new location stake shall be erected. Rev. St. Colo. 1908 § 4211 as amended Sess. Laws Colo. 1911 p. 515.

1900.

NORTHMORE v. SIMMONS ET AL.

(See post, p. 305, for a report of the case.)

BEALS v. CONE ET AL.

SUPREME COURT OF COLORADO. 27 Colo. 473, 62 Pac. 948. ACTION by appellant, as plaintiff in the court below, as the owner of the Tecumseh lode, in support of his adverse against the applica

For tables of statutory requirements of the various states, see the last accessible edition of Morrison's Mining Rights. In the 14th edition the tables appear at pp. 73, 253.