ground segment of the vein unappropriated, a discovery of such unappropriated segment would be sufficient, except as against one subsequently locating a portion of the apex in such a manner as to include the underground segment of the vein within the extralateral rights of his claim.1

We are not to be understood as stating that the locator of such an unappropriated segment of a vein would be entitled to extralateral rights. That question will be discussed in a subsequent chapter.

It is no proof of discovery within the limits of a location that a vein discovered in another location may penetrate the ground sought to be located, where there is no outcrop in the latter, and no physical evidence of the existence of the vein.2

Any portion of the apex on the course, or strike, of the vein found within the limits of a claim is sufficient discovery to entitle the locator to obtain title.3

It has been held that where a vein has been discovered far below the surface, a valid location can be made by marking the boundary on the surface so as to include the place at which the vein, if continued to the surface, would be disclosed, in the absence of some proof that the actual position of the apex is outside of the claim as located, and the location itself would be subject to the extralateral right of a subsequent locator covering the apex if it was subsequently discovered outside of the limits of the prior location.

a

Ante, § 314; post, § 364; and see Doe v. Waterloo M. Co., 54 Fed. 935; Parrot Silver and Copper Co. v. Heinze, 25 Mont. 139, 87 Am. St. Rep. 386, 64 Pac. 326.

Michael v. Mills, 22 Colo. 439, 45 Pac. 429; Silver Jennie Lode, 7 L. D. 6.

3 Larkin v. Upton, 144 U. S. 19, 23, 12 Sup. Ct. Rep. 614; Upton v. Larkin, 5 Mont. 600, 6 Pac. 66; Id., 7 Mont. 449, 17 Pac. 728; Golden Terra M. Co. v. Mahler, 4 Morr. Min. Rep. 390.

Brewster v. Shoemaker, 28 Colo. 176, 63 Pac. 309.

A discovery of mineral must be treated as an entirety and as the proper basis of but one location.1 Therefore, it is not susceptible of subdivision for the purpose of two locations having a common end-line that bisects the discovery shaft.2

Yet where a discovery shaft sunk by a junior locator bisects a common boundary between him and a prior appropriator, and a portion of apex is found disclosed within the limits of the junior location, such a discovery is sufficient upon which to base the subsequent location.3

338. The effect of the loss of discovery upon the remainder of the location.-As the discovered lode must lie within the limits of the location which is made by reason of it, if the title to the discovery fails, so must the location which rests upon it.

If there is but one point of discovery, and all workings are done at that point, a patent issued to another claimant, covering the place of working, restores the remainder of the ground to the public domain.*

Where, however, a new discovery is made and work prosecuted thereon in good faith, loss of the original discovery point by patent to another will not work a loss of

'Reynolds v. Pascoe (Utah), 66 Pac. 1064.

Poplar Creek Cons. Quartz Mine, 16 L. D. 1, 2. See, also, McKinstry v. Clark, 4 Mont. 370; Morr. Min. Rights, 10th ed. 40.

In a case arising under the laws of New Mexico as they existed in 1871, a locator divided his claim into three parts, and conveyed two of them to other parties. There was but one discovery shaft. The supreme court held that the severance of title as to the two parts conveyed rendered a separate shaft on each part necessary. The case as reported does not state whether or not the discovery shaft had been sunk prior to the conveyance. Zeckendorf v. Hutchison, 1 N. Mex. 476; 9 Morr. Min. Rep. 483.

Larkin v. Upton, 144 U. S. 19, 23, 12 Sup. Ct. Rep. 614.

* Gwillim v. Donnellan, 115 U. S. 45, 50, 5 Sup. Ct. Rep. 1110; Miller v. Girard, 3 Colo. App. 278, 33 Pac. 68; Girard v. Carson, 22 Colo. 345, 44 Pac. 508.

the balance of the domain.1 Nor will a prior location be lost where a junior locator is allowed to obtain, without contest, a patent which includes a portion of the prior claim containing the discovery, under an agreement to reconvey such portion to the prior claimant after patent, provided the acts of the parties are in good faith.2

The land department refuses to issue a patent upon an application from which is excepted the land containing the discovery shaft and improvements, where the proof fails to show the discovery or existence of mineral on the claim as applied for.3

A lode claim which is intersected by a patented millsite must be confined to that part which contains a discovery shaft and improvements, unless a valid discovery of the same vein can be shown upon the other part.5

Such showing will authorize the entry of such remainder, as in such case it is not restored to the public domain. And the applicant may be permitted, after entry at the local land office, and prior to patent, to establish these facts by supplemental proof."

The rule that a patent may not be issued for both parts of a lode claim which is intersected by a millsite does not apply to a lode claim which is intersected by a placer claim. It was formerly held that if a lode

1 Silver City G. and S. M. Co. v. Lowry, 19 Utah, 334, 57 Pac. 11. Duxie Lode, 27 L. D. 88.

In re J. G. Kennedy, 10 Copp's L. O. 150; Antediluvian Lode, 8 L. D. 602; Independence Lode, 9 L. D. 571; Lone Dane Lode, 10 L. D. 53; In re Thomas J. Laney, 9 L. D. 93; Hidden Treasure Lode, 29 L. D. 156, S. C. on review, Id. 315.

Andromeda Lode, 13 L. D. 146; Mabel Lode, 26 L. D. 675.

5 Paul Jones Lode, 31 L. D. 359.

In re Hagland, on review, 1 L. D. 593; Paul Jones Lode, 31 L. D. 359; Perigo v. Erwin, 85 Fed. 904; Erwin v. Perigo, 93 Fed. 608.

Spur Lode, 4 L. D. 160.

The Vulcano Lode M. Claim, 30 L. D. 482.

Silver Queen Lode, 16 L. D. 186.

claim is intersected by a prior lode location, both parts of such intersected claim could not be retained. But under the recent decisions of the department we think the opposite conclusion would be reached.1

Judge Hallett has ruled, that a locator may sell or otherwise dispose of that portion of his location which covers his discovery and workings without affecting his right to the remainder.2

In the case in which this rule was announced the sale was evidently brought about by the pendency of adverse proceedings. The decision was made before that of the supreme court of the United States in Gwillim v. Donnellan, heretofore cited.

The supreme court of Utah has held that where the original discovery of a lode claim has been included within the patent lines of a junior claim, but before the issuance of such patent a discovery is made on that portion of the senior location not included within the junior claim, such senior location is valid.

The supreme court of California has attempted to qualify the rule announced by the supreme court of the United States in Gwillim v. Donnellan, and which has been followed uniformly by the land department, in a case where the discovery and workings were embraced within an agricultural patent, the mining locator subsequently acquiring the agricultural title.*

The court evidently strained the law to avoid sanctioning what it deemed an injustice. Work done on the patented agricultural land, if it had a manifest tendency

'Paul Jones Lode, 31 L. D. 359; Hidee Gold M. Co., 30 L. D. 420; Alice Lode M. Claim, Id. 481. See Crown Point G. M. Co. v. Buck, 97 Fed. 462, 465.

Little Pittsburg Cons. M. Co. v. Amie M. Co. 17 Fed. 57.

Silver City G. and S. M. Co. v. Lowry, 19 Utah, 334, 57 Pac. 11. See Paul Jones Lode, 28 L. D. 120, 31 L. D. 359.

Richards v. Wolfling, 98 Cal. 195, 32 Pac. 971.

to develop that part of the location excluded from the agricultural entry, would be considered in law as the equivalent of work done within the limits of the claim. But a discovery, without which no location possesses any potential force or vitality, once passing by patent to another, can no more be used as the basis of acquiring title to unpatented lands, although held by the same owner, than can a discovery in one mining claim be used as the basis of locating another. Certainly, no patent could ever be obtained to the remainder of the mining claim upon the facts shown in the California case, unless other discoveries were made within such remainder. It is manifest that the ruling of Judge Hallett and the decision of the supreme court of California are opposed to the weight of authority. Loss of discovery results in loss of location, unless a new discovery is made within the excluded ground prior to the inception of intervening rights. Such new discovery will save the remainder from reverting to the body of the public domain.

339. Extent of a locator's right after discovery and prior to completion of location.-Discovery is but one step in acquiring title to a mining claim. It must be followed by location. When a prospector has made such a discovery as will satisfy the law and form the basis of the location, he is allowed, in most of the states and territories, a specified time in which to perform the remaining acts which are requisite to perfect the location. As to whether, in the absence of such legislation and district rules, the discoverer has any appreciable time within which to mark his boundaries and complete his location is a subject upon which the courts differ. The supreme court of California holds that while if the

'Adams v. Crawford, 116 Cal. 495, 48 Pac. 488.