CHAPTER V Lode Location-Discovery R. S., SEC. 2320. *** 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 first essential in locating a lode claim is a 'discovery'. What is a discovery can only be defined in a general way. It must be rock in place, fixed, immovable. Float, the segregated portions of a blowout, or a detached part of a vein, will not constitute a discovery. Mineralization and boundaries are the other requirements. The amount of mineral required varies, in some cases may be nil. In a deposit having a general mineralization, without walls, vein formation, or enclosing rock, such as some porphyry copper deposits, appreciable mineralization is necessary to lead to the inference that the deposit may become workable. Where there is a well defined fissure, contact, vein, or belt which has been formed or changed so as to warrant the belief that payable mineral will be met with by following the lead, vein, or lode, but little or no mineralization may be required. It has been generally held by the Land Department, and by many of the courts, that "a valid location of a mining claim may be made whenever the prospector has discovered any indications of mineral, so that he is willing to spend his time and money following it with the expectation of finding ore." This holding of some of the courts, where the question of discovery is involved, that anything is a lode which a miner would be willing or justified in following in the expectation of finding ore, appears to be a proper definition of the term lode as used in connection with mining law. It may be further noted that lode, vein, lead, or ledge have the same meaning in mining law, but that the term lode is more comprehensive, and, being a more suitable term for deposits of vein character which may not strictly be veins as understood by miners and geologists, should be generally used. The evidence required for a discovery varies greatly with the conditions. Between rival locators of a claim, slight evidence is required on the part of the first discoverer, especially if he is the prior claimant. Likewise, but slight evidence is required to satisfy the law in case of application for patent, especially where the application is bona fide in every respect. The discovery of a contact between igneous and other rock, such as between granite and limestone or quartzite, or a contact along a dike, may be sufficient to justify the miner in tunneling or sinking on the contact in the expectation of finding ore. Or a change from an altered country rock to a silicified rock with a slight but definite mineralization, may encourage the miner by indicating that he is near an orebody or in a zone which has been subject to the conditions under which veins and ore deposits are formed. But while there are no hard and fast rules or technical requirements as to what does or does not constitute a vein or lode, every mineral stain, crevice, alteration, or silicification cannot be taken as a discovery. There must be some logical reason, something beyond a mere hope or unwarranted belief, for assuming that payable ore may eventually be found. However, this need not be based upon the opinions of expert miners and geologists. The evidence required to support a lode discovery in a placer claim, or against an agricultural entry, is much greater, and in the latter case becomes to a large extent a question of comparative value, in which the border line between what constitutes a valid mineral discovery and for what is the land most valuable, cannot be distinguished. In these cases a heavy burden of proof rests on the second claimant in trying to dispossess the first entryman. Despite the fact that there is no question but that a location is not valid unless based on a mineral discovery within the lines and on the actual ground of the claim, a large number of locations are made without a mineral discovery, and this in the face of the further fact that such a discovery can be made on most locations by some prospecting and effort. Many lode claims are located for legitimate mining purposes upon ground which it is not intended to develop as contemplated by the lode-claim laws, but which are taken up in addition to the actual mineral area which it is intended to develop, for the timber, for millsite and townsite purposes, or for protection. An attempt should be made to have a mineral discovery upon each of these claims. Often they can be located so as to include such a discovery. In locating a claim, it is expected, should the ground eventually be thought valuable, that patent will be obtained for it. The Government has recently inaugurated the practice of having the ground of all applications for mining patent examined by a mineral examiner of the Field Service of the General Land Office, and if within a Forest Reserve, by a representative of the Forest Service also. While these examiners may not necessarily question the sufficiency of the mineral discovery on the ground of every bona fide mining claim which does not appear to be more valuable for some other purpose, they will usually require strong evidence of a discovery on claims that appear to be more valuable for other purposes than mineral development and mining. If the discovery is made within the lines of the location, but upon ground which overlaps and is claimed by a prior or senior locator, the newer or junior location is invalid, inasmuch as it has no discovery. The finding of a mineral discovery upon the ground actually claimed by the junior location, or the appropriation of the conflicting ground of the senior location after it has been abandoned or become forfeitable by failure to do the annual or assessment work, and the adoption of the mineral discovery thereon, will validate the junior location. The mineral discovery may be anywhere upon the actual ground of the claim and not necessarily in the discovery shaft or on the centre line of the claim, except where State statutes might attempt to require it. The discovery may be made any time after the location is made, so long as it is before the discovery of any rival locator. The position of a locator attempting to hold a location without a mineral discovery cannot be fully defined. The locator is entitled to be protected in his occupation of the ground, especially while trying in good faith to make a mineral discovery. Under the law, other locators are also entitled to go upon the ground, so long as it can be done peaceably and without interfering with the first claimant, and under such conditions to attempt to make a discovery. In the case of these rival claimants, the claim goes to the one making a discovery first. Usually, miners will not interfere, and the courts will be lenient, so far as they are able to be so, where the claimant is working in good faith to develop mineral; but it must always be remembered that the Statute is clear and specific, and fully supported by court decisions, in saying that a location is not valid until a discovery is made. The locator need not be the first to find or uncover the mineral discovery; he may appropriate any sufficiently strong indication of the proximity of valuable mineral deposits or any exposed lode, whether it has been revealed by nature or man. After patent is issued, the patent cannot be attacked on grounds of no mineral discovery. CHAPTER VI Lode Location-Discovery Work The difference between the mineral discovery, the discovery work or discovery shaft, and the discovery or location point, stake, or monument often spoken of as 'the discovery,' should be clearly understood. The mineral discovery is the actual discovery of mineral required to validate a claim according to the Statute, as explained in the previous chapter. The discovery work or shaft is work required by the statutes of certain States in connection with the making of a location, as will be explained in this chapter. The discovery or location point, stake, or monument, 'the discovery,' is what has become a technicality in connection with the locating and patenting of a lode claim. It was originally presumed that when the miner made a mineral discovery or found a vein, he would erect alongside of it a discovery or location stake or monument, on which he would place a location notice claiming so many feet in each direction along the lode 'from this discovery', and so many feet on each side, and would subsequently sink a shaft or perform other work upon the mineral at this point, which work would be known as the discovery shaft, though the term discovery work would be more applicable, since the work may be a cut or tunnel instead of a shaft. In this way 'the discovery' containing the mineral discovery, the location monument, and the discovery shaft or work, became a point on the centre or lode line of the claim from which the claim could be measured in all directions. In taking up claims side by side, or fractions of claims open to location, it was of course impossible to find a vein, lode, or mineral at each of the desired points to place the location monument claiming the maximum amount of ground. This led to the placing of a location or so-called discovery stake or monument at any point required in the course of blocking out the |