66 rights of third persons. If the necessary steps outside "of discovery are not taken within the time required by law, but are complied with before the rights of third parties intervene, they relate back to the date of loca"tion. But not so with discovery, for it is upon that act "that the very life of a mineral location depends; and "from the time of such discovery only would the loca"tion be valid, provided, of course, that others had not "acquired rights therein."1 The case of Erwin v. Perigo 2 involved a mining claim on which a discovery was not made until after the marking of the boundaries. The court said: 66 "The marking of the boundaries of the claim may precede the discovery, or the discovery may precede "the marking; and if both are completed before the " rights of others intervene, the earlier act will inure to "the benefit of the locator as of the date of the later, "and a complete possessory title to the premises will "vest in him as of the later date." This language is undoubtedly correct as applied to the facts under discussion by the court. But it may be questioned whether the statement is correct as applied to a case where the marking occurs subsequent to the discovery. In such a case we think, in the absence of a state statute fixing a definite time, a discoverer of mineral has a reasonable time within which to mark his boundaries, and if he complete the marking within a reasonable time, his title will date from the time of discovery. It has frequently been held that discovery is the source of a miner's title.1 3 The failure to perform any of the given acts within the time limited by the laws or local rules may subject the ground to relocation; but if the requirements are Cone, 27 Colo. 473, 83 Am. St. Rep. 92, 62 Pac. 498, 952. 1 Beals v. $93 Fed. 608. * Post, § 339. • Post, § 335. complied with prior to the acquisition of any intervening rights, no one has a right to complain. Of course, the locator delays at his peril; but if the appropriation becomes complete before any one else initiates a right, the antecedent delay is condoned, and the right becomes perfected.1 But unless completed within the time prescribed the attempted location is of no avail as against intervening rights,2 assuming, of course, that the subsequent entry for the purpose of location is peaceable and in good faith.3 8 331. Locations made by agents.-There is nothing in the Revised Statutes that prohibits one from initiating a location of a mining claim by an agent. As the title comes from appropriation made in accordance with the law, and as it is not necessary that a party should personally act in taking up a claim, or in doing the acts required to give evidence of the appropriation, or to perfect the appropriation, it would seem, at least in the absence of a local rule or state statute to the contrary, that such acts are valid if done by one for another, or with his assent. A location may be made without the knowledge of the principal, if there is a local rule authorizing it; otherwise, there may be antecedent 'McGinnis v. Egbert, 8 Colo. 41, 5 Pac. 652; North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 314, 1 Fed. 522; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 115, 11 Fed. 666; Omar v. Soper, 11 Colo. 380, 7 Am. St. Rep. 246, 18 Pac. 443; McErvy v. Hyman, 25 Fed. 596; Preston v. Hunter, 67 Fed. 996, 999; Faxon v. Barnard, 4 Fed. 702; Strepey v. Stark, 7 Colo. 614, 5 Pac. 111; Craig v. Thompson, 10 Colo. 517, 16 Pac. 24; Lockhart v. Willis, 9 N. Mex. 344, 54 Pac. 336; Crown Point G. M. Co. v. Crismon, 39 Or. 364, 65 Pac. 87. Pelican & Dives M. Co. v. Snodgrass, 9 Colo. 339, 12 Pac. 206; Hauswirth v. Butcher, 4 Mont. 299, 1 Pac. 714; Upton v. Larkin, 5 Mont. 600, 6 Pac. 66; Copper Globe M. Co. v. Allman (Utah), 64 Pac. 1019. authority or subsequent ratification. Such authority need not be in writing.2 A party in whose name a mining claim is located is presumed to have assented to the location, upon the principle that a party is presumed to assent to a deed or other act manifestly for his benefit.1 One of several co-locators of a mining claim may cause a notice of a mining claim to be recorded in the name of himself and others not present, and the location will be valid." When a location is made by one in the name of others, the persons in whose names it is made become vested with the legal title to the claim. The estate so acquired cannot be divested by making a second location leaving out the names of the original locators, so long as the first location remains valid and subsisting." If, however, they have abandoned or forfeited their rights by failure to comply with the conditions of the agreement under which the location was originally made, a relo 1 Thompson v. Spray, 72 Cal. 528, 14 Pac. 182; Murley v. Ennis, 2 Colo. 300; Morton v. Solambo C. M. Co., 26 Cal. 527, 534; Hirbour v. Reeding, 3 Mont. 13; Welland v. Huber, 8 Nev. 203; Moritz v. Lavelle, 77 Cal. 10, 11 Am. St. Rep. 229, 18 Pac. 803; Book v. Justice M. Co., 58 Fed. 106; Reagan v. McKibben, 11 S. Dak. 270, 76 N. W. 943, 945; Morrison v. Regan (Idaho), 67 Pac. 956. Morrison v. Regan (Idaho), 67 Pac. 956; Reagan v. McKibben, 11 S. Dak. 270, 76 N. W. 943, 946; Moritz v. Lavelle, 77 Cal. 10, 11 Am. St. Rep. 229, 18 Pac. 103; Book v. Justice M. Co., 58 Fed. 106, 119; Moore v. Hamerstag, 109 Cal. 122, 41 Pac. 805. 3 Kramer v. Settle, 1 Idaho, 485; Van Valkenburg v. Huff, 1 Nev. 142, 149; Rush v. French (Ariz.), 25 Pac. 816. Gore v. McBrayer, 18 Cal. 582, 588. 5 Kramer v. Settle, 1 Idaho, 485; Dunlap v. Pattison (Idaho), 42 Pac. 504. 'Van Valkenburgh v. Huff, 1 Nev. 142, 149; Moore v. Hamerstag, 109 Cal. 122, 41 Pac. 805. 'Van Valkenburgh v. Huff, 1 Nev. 115, 149; Thompson v. Spray, 72 Cal. 528, 14 Pac. 182; Gore v. McBrayer, 18 Cal. 582; Morton v. Solambo C. M. Co., 26 Cal. 533; In re Auerbach, 29 L. D. 208; In re Teller, 26 L. D. 484. cation may be made by the original co-locator or agent in his own name.1 Where the location becomes subject to relocation by reason of the failure of the co-locators to perform the annual labor required by law a different question arises —a subject fully discussed in subsequent sections.2 If an agent makes a location on behalf of his principal, but, pursuant to a conspiracy with others, permits the location to lapse, in order that a relocation may be made in his own and others' behalf, the remedy of the principal after such relocation would be an action for breach of contract or to establish and enforce a trust in the claim as relocated against the parties relocating.3 ARTICLE III. THE DISCOVERY. § 335. Discovery the source of the miner's title. § 336. What constitutes a valid discovery. 337. Where such discovery must be made. § 338. The effect of the loss of discovery upon the remainder of the location. § 339. Extent of locator's rights after discovery and prior to completion of location. 8 335. Discovery the source of the miner's title.Discovery in all ages and all countries has been regarded as conferring rights or claims to reward. Gamboa, who represented the general thought of his age on this subject, was of the opinion that the discoverer of mines was even more worthy of reward than the inventor of a useful art. Hence, in the mining laws of all civilized countries the great consideration for granting mines to individuals is discovery. "Rewards so bestowed," says Gamboa, "besides being a proper return for the labor 1 Murley v. Ennis, 2 Colo. 300. Post, §§ 405, 406. Lockhart v. Johnson, 181 U. S. 516, 529, 21 Sup. Ct. Rep. 665. "and anxiety of the discoverers, have the further effect "of stimulating others to search for veins and mines, "on which the general prosperity of the state de66 pends.'' 1 While in some of the older countries of Europe, as in France and Belgium, the nature of the reward to the discoverer was something less than an absolute preference in the right of enjoyment, yet in Spain and Spanish-America there was guaranteed to him “an "absolute right of property in the mine which he dis"covers if he will take the proper measures to denounce "it and have it duly registered. No one can have any preference over him, and he loses the rights which "result from his discovery only through his own neglect "to make it publicly known in the manner in which the "law directs." 2 66 This wise and liberal policy which pervaded the Mexican system at the time of the conquest and the acquisition of California by the United States became the recognized basis of mining rights and privileges as they were held and enjoyed under the local rules and regulations established by the miners occupying the public mineral lands within the newly acquired territory, and in all subsequent legislation, whether congressional, state, or territorial, discovery is recognized as the primary source of title to mining claims.3 As was said by Halleck in his introduction to De Fooz on the "Law of Mines," "Discovery is made the source "of title, and development, or working, the condition "of the continuance of that act." Whatever may be the rule governing the acquisition of title to "claims usually called placers, including all 'Halleck's De Fooz on the Law of Mines, p. xxvi. Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. Rep. 560. |