vein may be disclosed in a pit sunk on it before by a stranger.-Hayes v. Lavagnino, 53 P. 1029.

In Zerres v. Vanina, 134 F. 614, it is said: "A relocator is not a discoverer of the mineral, but an appropriator thereof;" which expression though literally true and correctly used as applied to the facts in that case may be misleading if not qualified. A relocator must disclose the lode in his shaft the same as the original locator, and may do so at a point where the original discoverer never supposed it to exist, or by uncovering a new vein within the located ground. Technically therefore the relocator is a discoverer as much as the first finder of the lode, and in his record he gives his "date of discovery" just the same.

A Location on Float Ore, the discovery opening not showing the lode in place, has been expressly held to be invalid. Several tons of such ore had been extracted, but the vein itself from which it came had not been defined.-Waterloo Co. v. Doe, 56 F. 685.

On the other hand an Idaho decision allowed a location to stand good made upon "indications of mineral," the report, however, leaving it very indefinite as to what these indications were.-Burke v. McDonald, 29 P. 98.

Discovery is a question of fact for the jury. Columbia Co. v. Duchess Co. 79 P. 385.

Discovery After Location.

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.—McGinnis v. Egbert, 15 M. R. 329; 8 Colo. 41; Golden Terra Co. v. Mahler, 4 M. R. 390; Jupiter Co. v. Bodie Co. 4 M. R. 411; 11 F. 666; Zollars v. Evans, 4 M. R. 407; 2 McCr. 39; North Noonday Co. v. Orient Co. 9 M. R. 529; 1 F. 522; Erwin v. Perego, 93 F. 608; Nevada Co. v. Home Co. 98 F. 673; Brewster v. Shoemaker, 63 P. 309; Weed v. Snook, 77 P. 1023;

Sharkey v. Candiani, 85 P. 219, and the Land Department has followed these rulings.-28 L. D. 526.

But where a location and record were made with no discovery, a subsequent discovery will not relate back and cut out an intervening location.-Beals v. Cone, 62 P. 948.

A discovery after the adverse claim was filed is not available to the plaintiff.-Healey v. Rupp, 86 P. 1015.

Discovery and Discovery Shaft Distinguished.

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. If a lode, for instance, be discovered in a cross-cut run to operate some other known vein, or if a prospect hole be dug on the outcrop of a lode, and no steps are taken to stake and record such lode, it becomes no more the property of the owner of the cross-cut, or of the party who dug the hole, than if he had never happened to strike it, and although he could have followed up the discovery. by perfecting title, his neglect so to do is equivalent to abandonment of the inchoate right given by discovery.-Willeford v. Bell, 49 P. 6.

The Discovery Need Not Show Pay Ore.

It is sufficient that it disclose such a crevice as a miner would be willing to further open and follow. McShane v. Kenkle, 44 P. 979; Shreve v. Copper Bell Co. 28 P. 315; Muldrick v. Brown, 61 P. 428; Fox v. Myers, 86 P. 793.

Comparative Size or Value.

If there is once found a lode such as is conceded to be one upon which a prospector may lawfully locate, and he has made such a discovery as justifies a location upon it, it makes no difference what its size or value as compared to the size or value of other veins asserting hostile title against such location.Book v. Justice Co. 58 F. 125.

Proof of Mineral Contents.

The discovery must be of a mineral bearing vein or deposit. The proof of mineral value does not require an assay, although an assay if taken is of material value as evidence.-Healey v. Rupp, 63 P. 319. What is quartz or mineral bearing rock is determinable by the eye in most cases and such ores as galena, zink-blende, copper pyrites and many others necessarily indicate mineral contents. There are, however, varieties of ochre and other discolored earth and rock which may or may not carry any kind of valuable mineral, in which instances an assay or other test in common reason should be required.

Lode Found Outside of Discovery Shaft.

It has been decided in some of the States that although no lode was found in the discovery shaft, its disclosure elsewhere within the claim before any adverse rights had accrued would validate the claim. -Harrington v. Chambers, 1 P. 362; affirmed 111 U. S. 350; North Noonday Co. v. Orient Co. 9 M. R. 529; 1 F. 522; Tonopah Co. v. Tonopah Co. 125 F. 408. But to the contrary, in Colorado under its statute is the case of Van Zandt v. Argentine Co. 4 M. R. 441; 2 McCr. 159; Terrible Co. v. Argentine Co. 89 F. 583; affirmed 122 U. S. 478. And if it be true that the sinking of the discovery within patented lines or the patenting of the discovery shaft by a hostile claim invalidates the entire claim; and if the discovery shaft be, as it is, the point from which both length and width of the claim are determined, the point at which the notice is to be posted, and where it is required in terms by the language of the statute to show a well defined crevice, and the lode in place -it seems inconsistent to hold that discovery elsewhere would be of any avail when there was none in the discovery shaft.

This question has been decided in terms by the Supreme Court of Colorado; that a lode must be disclosed in the discovery shaft.-McMillen v. Ferrum

Co. 74 P. 461; Beals v. Cone, 20 M. R. 591; 62 P. 948.

In a Montana holding, based strictly on the construction of the statute in that State, it was ruled that the discovery shaft need not necessarily show the vein, provided it was disclosed elsewhere on the claim. O'Donnell v. Glenn, 19 P. 302.

By Relocation Upon the Shaft showing the mineral afterwards discovered, this danger can be avoided where no hostile discovery has intervened. But a new record based on a new discovery is an abandonment of the original location.-Beals v. Cone,

supra.

The Point at Which a Lode is Discovered is not material. It may be discovered at the surface where it outcrops above all surrounding country rock (Score v. Griffin, 80 P. 331); or under the slide near the surface at its true apex, by shaft, open cut or boom ditch; or at a greater depth by a tunnel cutting the vein horizontally across its dip, or by a shaft striking it perpendicularly upon the incline. The Discovery Shaft need not be sunk at the point where the lode was first actually discovered. The prospector has the right to choose a more convenient spot from which to base and outline his claim. -Harrington v. Chambers, 1 P. 375.

All Methods of Discovery, whether by shaft, cut, tunnel, boom-ditch or otherwise, are recognized by the statutes or district regulations everywhere, the only distinction being, where a discovery of a certain depth and showing certain things is required, that when discovered at the surface or in the slide there must be a shaft at least ten feet deep, or deeper, if necessary to show a well defined crevice; while if disclosed in a cross-cut or tunnel, the vein must be cut and a well defined crevice exposed, at least ten feet below the surface.

Discovery by Prospecting Drill.

The discovery of a lode or deposit by either horizontal or vertical drilling would doubtless fulfill all the conditions of a legal discovery, and would operate to give the party the legal time allowed to complete a discovery shaft; but the idea that a drill-hole would be considered as the equivalent of a discovery shaft can not be entertained. It would be a physical impossibility for such drill-hole to show a well defined crevice, and a drill-hole is neither a shaft, cut or other opening such as are enumerated among those things which may constitute a discovery shaft or cut. The discovery of a lode is a matter of interest to the prospector only; but if he intends to appropriate the same it must be by such physical workings as shall amount to notice to third parties. A drill-hole is not a notorious, physical land mark, and could not be construed as such notice.

Discovery Holds How Long?

A discovery in Colorado, Wyoming, North and South Dakota, Montana and Oregon holds the claim for sixty days allotted to sink the discovery shaft. -Marshall v. Harney Peak Co. 47 N. W. Rep. 290. Arizona, New Mexico and Washington allow ninety days. Idaho allows sixty days, but claim must be staked within ten days after discovery. In Alaska the discoverer has ninety days to record, but district rules may prescribe shorter periods for shaft or other location work. Nevada allows ninety days from date of posting location notice, but requires the monuments to be placed within twenty days from date of posting.

In those States which prescribe no specific time, what is denominated a reasonable time is allowed in which to complete the location. What is a reasonable time depends upon circumstances, but it is not to be stretched indefinitely. In Patterson v. Hitchcock, 5 M. R. 542; 3 Colo. 533, it was ruled that ninety days to sink a shaft was more than a reasonable time. In