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 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 depends.'

Location is the act or series of acts by which the right of exclusive possession of mineral veins and the surface of mineral lands is vested in the locator. For this the only requirement made by Congress is the marking on the surface of the boundaries of the claim. By section 2324, however, Congress recognized the validity of any regulations made by the miners of any mining district not in conflict with the laws of the United States or the laws of the State or Territory within which the district is situated. This is held to authorize legislation by the State. Thus in Belk v. Meagher, 104 U. S. 279, 284, it was said:

"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."

In Kendall v. San Juan Mining Company, 144 U. S. 658, 664, is this language:

"" 'Section 2324 of the Revised Statutes makes the manner of locating mining claims and recording them subject to the laws of the State or Territory, and the regulations of each mining district, when they are not in conflict with the laws of the United States."

See also Erhardt v. Boaro, 113 U. S. 527, 533, 534, 535; Butte City Water Company v. Baker, 196 U. S. 119.

And many Territories and States (Colorado among the number) have made provisions in respect to the location other

than the mere marking on the ground of the boundaries of the claim. So before a location in those States is perfected all the provisions of the state statute as well as of the Federal must be complied with, for location there does not consist in a single act. In Morrison's Mining Rights, 11th ed., p. 37, the author, having primarily reference to the laws of Colorado, says:

"The location of a lode consists in defining its position and boundaries, and in doing such acts as indicate and publish the intention to occupy and hold it under the license of the United States. The formal parts of location include: 1, the location notice at discovery; 2, the discovery shaft; 3, the boundary stakes."

In Smelting Company v. Kemp, 104 U. S. 636, 649, Justice Field, referring to the fact that the terms "location" and "mining claim" are often indiscriminately used to denote the same thing, says by way of definition:

"A mining claim is a parcel of land containing precious metal in its soil or rock. A location is the act of appropriating such parcel, according to certain established rules."

See also Northern Pacific R. R. Co. v. Sanders, 49 Fed. Rep. 129, 135.

The patent is the instrument by which the fee simple title to the mining claim is granted.

Returning now to the matter of location, the Colorado statutes in substance require:

"1. To place at the point of discovery, on the surface, a notice containing the name of the lode, the name of the locator and the date of the discovery.

"2. Within sixty days from the discovery, to sink a discovery shaft ten feet deep showing a well-defined crevice.

"3. To mark the surface boundaries by six posts, one at each corner and one at the center of each side line, hewed or marked on the side or sides in towards the claim.

"4. The disclosure of the lode in an open cut, cross cut or tunnel suffices instead of a ten-foot shaft.

"5. Within three months from date of discovery he must file a location certificate with the county recorder giving a proper description of the claim, and containing also the name of the lode, the name of the locator, the date of the location, the number of feet in length on each side of the center of the discovery shaft and the general course of the lode.” Morrison's Mining Rights, 11th ed., p. 59.

The issue of a patent for a lode claim in Colorado is therefore not only a conclusive adjudication of the fact of the discovery of the mineral vein, but also of compliance with these several provisions of its statutes. The Supreme Court of that State has decided that the order is not essential, providing no intervening rights have accrued. In Brewster v. Shoemaker, 28 Colorado, 176, 180, it said:

"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."

And that has been the general doctrine. In 1 Lindley on Mines, 2d ed., §330, the author says:

"The order in which the several acts required by law are to be performed is non-essential, in the absence of intervening rights. The marking of the boundaries 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. But if the boundaries are marked before discovery, the location will date from the time discovery is made."

In 1 Snyder on Mines, § 354, it is said:

"While the general rule is, as stated elsewhere in the fore

going sections, that a location must rest upon a valid discovery, yet a location otherwise good, with a discovery made after location and before the intervention of adverse claims or the creation of adverse rights, will validate the location from the date of discovery, and generally from the first act towards claim and appropriation-this by relation."

In Morrison's Mining Rights, 11th ed., p. 32:

"If a location be made before discovery, but is followed by a discovery in the discovery shaft, before any adverse rights intervene, such subsequent discovery cures the original defect and the claim is valid."

In In re James Mitchell, 2 L. D. 752, it was held by Commissioner McFarland that, "although prior to location no discovery of mineral was made within the ground claimed, upon a subsequent discovery prior to application for patent the location became good and sufficient, in the absence of any adverse rights."

In Reins v. Raunheim, 28 L. D. 526, 529, Secretary Hitchcock declared that "it is immaterial whether the discovery occurred before or after the location, if it occurred before the rights of others intervened. Erwin v. Perego et al., 93 Fed. Rep. 608."

Reference is made to the statement of Secretary Smith in Etling v. Potter, 17 L. D. 424, 426, as though that announced a different conclusion, that "a location certificate is but one step, the last one, in the location of a mining claim." But a location certificate is simply a certificate required by the local statute or custom that some things have been done, and of course it must come after those things have been done.

Again, in the same volume, pp. 545 and 546, Northern Pacific Railroad Company v. Marshall, he said:

"In the location of a mineral claim, placer or lode, the first requirement of the law is a discovery. (Secs. 2329 and 2320 Rev. Stat.) All rights inuring to the benefit of the locators are based upon this initial act. (Erhardt v. Boaro, 113 U. S. 537; United States v. Iron Silver Mining Company, 128 U. S. 673; O'Reilly v. Campbell, 116 U. S. 418.) When, therefore, a

legal location has been made on land returned as agricultural, the slight presumption in favor of the return of the surveyor general is, ipso facto, overcome, and the burden of proofs shifts to the party attacking such mineral entry. By such discovery and location it is demonstrated that the return was erroneous, and it would be trifling with physical facts to put the onus on the locator to present further evidence until it is shown that, as a matter of fact, he had no discovery."

But the question he was considering was simply as to the burden of proof between one claiming land returned as agricultural land and one claiming a portion thereof, as an apparently legal location of a mineral claim.

In North Noonday Mining Company v. Orient Mining Company, 1 Fed. Rep. 522, 531, Judge Sawyer, in charging the jury, said:

"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."

To the same effect was the charge of the same judge in Jupiter Mining Company v. Bodie Mining Company, 11 Fed. Rep. 666, 676.

In Cedar Canyon Mining Company v. Yarwood, 27 Washington, 271, the Supreme Court of Washington ruled that:

"In the absence of intervening rights, the fact that mineral is not discovered on a claim until after the notice of location is posted and the boundary marked is immaterial, and, where the discovery is the result of work subsequently done by the locator, his possessory rights under his location are complete from the date of such discovery. Nevada Sierra Oil Co. v.