(3) The word "mine" may also mean the veins or deposits of mineral, rather than the workings to get at them, or than the land in which they are found.1

123

(4) The word "mine" is used to designate a deposit of mineral which has been opened or worked, as distinguished from one which has been untouched.124

(5) The word "mine" is also used as synonymous with that sense of the word "mining claims" which embraces either one or more locations.125

(6) The word "mine" has also been used to designate patented mineral land, as distinguished from an unpatented location.126

thing is dug.'

*

Barber's Law Dictionary says: 'It is held to have the sense of quarry.' * We have dwelt more particularly on this branch of the case, because the counsel seemed to consider that much depended on establishing that taking the ore from the mine holes described in the bill and answers was not mining, within the decisions which require an account. It certainly is not mining under the English tax laws; but to us it appears that it clearly is such, under the decisions requiring an account between tenants in common." Coleman v. Coleman, 1 Pears. (Pa.) 470, 474, 475.

128 Bullion Beck & Champion Min. Co. v. Eureka Hill Min. Co., 5 Utah, 3, 51, 11 Pac. 515, 523 (defining "mine," as used in the act of 1866, as "synonymous in its meaning with the terms 'vein' or 'lode'"); Shaw v. Wallace, 25 N. J. Law, 453, 469.

124 Westemoreland Coal Co.'s Appeal, 85 Pa. 344, where the question was as to waste by purchaser from a tenant for life.

125 Phillips v. Salmon River Min. & Development Co., 9 Idaho, 149, 72 Pac. 886; Tredinnick v. Red Cloud Consol. Co., 72 Cal. 78, 81, 13 Pac. 152, 153; Hamilton v. Delhi Min. Co., 118 Cal. 148, 50 Pac. 378; Idaho Min. & Mill. Co. v. Davis, 123 Fed. 396, 59 C. C. A. 200. See Smith v. Sherman Min. Co., 12 Mont. 524, 31 Pac. 72.

126 FORBES v. GRACEY, 94 U. S. 762, 766, 24 L. Ed. 313, where, in speaking of a Nevada taxation statute, the court said: "The use of the words 'mines or mining claims' is evidently intended to distinguish between the cases in which the miner is the owner of the soil, and therefore has perfect title to the mine, and those in which the miner does not have title to the soil, but works the mine under what is * recognized by

the act of Congress as a mining claim. In the first case the statute makes the tax a lien on the mine, because the title to the mine is in the person who owes and should pay the tax. In the other, the tax is a lien only on the claim of the miner; that is, on his possessory rights to explore and work the mine under the existing laws and regulations on the subject." But see Bewick v. Muir, 83 Cal. 368, 372, 23 Pac. 389, where it is said: "The words 'mining claim,' as used in the law [a mechanic's lien statute] have no reference to the different stages in the acquisition of the government title. In our opinion, it includes all mines, whether the title is inchoate, as in the case of a mining claim in its strict sense, or perfect, as in the case of a fee-simple title."

COST.MIN.L.-10

(7) The word "mine" is also used among miners to mean a paying mining location, as contrasted with a location not yet demonstrated to be paying, and hence known as a "prospect."

Upon the whole, it will be safer and better always to use the term "mining claim," rather than "mine," and, when it is necessary to discriminate an unpatented claim from a patented one, to use the words "unpatented" and "patented."

CHAPTER X.

THE DISCOVERY OF LODE AND PLACER CLAIMS.

40-43. The Discovery of Lode Claims.

44. Pedis Possessio.

45. The Relation Between Discovery and Location.

46. The Discovery of Placer Claims.

"No location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located." Rev. St. U. S. § 2320 (U. S. Comp. St. 1901, p. 1424).

THE DISCOVERY OF LODE CLAIMS.

40. Discovery in mining is essentially the same thing as discovery elsewhere. In lode mining a discovery is the finding of a vein or lode in land of the United States which is unappropriated and which may be located under the mining law. It exists as effectually where a prospector notes and claims a vein or lode uncovered by a previous locator and abandoned or forfeited by the latter as it does where the prospector is the original discoverer.

41. Whether a genuine vein has actually been discovered is a question of fact for the jury. The law for the guidance of the jury varies slightly, however, according as the dispute over the lode arises (a) between a lode claimant and a subsequent lode claimant; (b) between a lode claimant and a subsequent placer claimant; (c) between a placer claimant and a subsequent lode claimant; (d) between a placer claimant and a subsequent placer claimant; (e) between mineral claimants and townsite claimants; or (f) between mineral claimants and agricultural claimants.

What is a Discovery.

In lode mining, discovery is the finding of a vein or lode which may be located. Extracting tons of float from the claim will not make a discovery. A genuine vein or lode must be found. If only

1 Waterloo Min. Co. v. Doe (C. C.) 56 Fed. 685. See Overman Silver Min. Co. v. Corcoran, 15 Nev. 147; Copper Globe Min. Co. v. Allman, 23 Utah, 410, 64 Pac. 1019. But see Score v. Griffin (Ariz.) 80 Pac. 331; Reiner v. Schroeder, 146 Cal. 411, 80 Pac. 517. The discovery must be within the limits of the claim. Michael v. Mills, 22 Colo. 439, 45 Pac. 429. A mere guess will not serve as a discovery. Copper Globe Min. Co. v. Allman, supra. “Discovery is the all-important fact upon which the title to mines depends.” LAWSON v. UNITED STATES MINING CO., 207 U. S. 1, 28 Sup. Ct. 15, 19, 52 L. Ed.

DISCOVERY OF LODE AND PLACER CLAIMS.

(Ch. 10

the ore exists in appreciable quantities, the value of the ore is relatively immaterial. "When the locator finds rock in place containing mineral, he has made a discovery, within the meaning of the statute, whether the rock or earth is rich or poor, whether it assays high or low. It is the finding of the mineral in the rock in place, as distinguished from float rock, that constitutes the discovery, and warrants the proprietor in making a location of a mining claim.” 2

It is not necessary that the locator should be the original discoverer, but simply that he should find the vein or lode when it is in unappropriated land of the United States.* dip of a vein, the apex of which has already been located, will not A discovery on the support a location of the dip belonging to such located apex. Noting and claiming a vein or lode discovered and disclosed to view by a

5

2 BOOK v. JUSTICE MIN. CO. (C. C.) 58 Fed. 106, 120. Min. Co. v. Bodie Consol. Min. Co., 11 Fed. 666, 675, 676; Moore v. SteelSee Jupiter smith, 1 Alaska, 121; Meydenbauer v. Stevens (D. C.) 78 Fed. 787; McShane v. Kenkle, 18 Mont. 208, 44 Pac. 979, 33 L. R. A. 851, 56 Am. St. Rep. 579; Fox v. Myers (Nev.) 86 Pac. 793; Score v. Griffin (Ariz.) 80 Pac. 331. The vein need not contain ore in paying quantities, as long as enough ore is found to warrant a. prudent man in spending time and money on it. MULDRICK v. BROWN, 37 Or. 185, 61 Pac. 428; Charlton v. Kelly, 2 Alaska, 532. Where there is evidence that gold has been found within a claim, and the question is whether such finding amounts to a discovery, the locator is entitled to show the situation, character, value, and mineralogical conditions of adjacent claims, and to follow that evidence up with expert testimony to show that he is justified in expending time and money in prospecting, developing the ground, and so has made a discovery. Cascaden v. Bortolis (C. C. A.) 162 Fed. 267.

3 JUPITER MIN. CO. v. BODIE CONSOL. MIN. CO. (C. C.) 11 Fed. 666, 7 Sawy. 96; BOOK v. JUSTICE MIN. CO. (C. C.) 58 Fed. 106; Wenner v. McNulty, 7 Mont. 30, 14 Pac. 643; Hayes v. Lavagnino, 17 Utah, 185, 53 Pac. 1029; Willeford v. Bell (Cal.) 49 Pac. 6.

4 Lands below ordinary high tide on the ocean, arms of the sea, and navigable rivers in Alaska are not subject to location under the mining laws. Alaska Gold Min. Co. v. Barbridge, 1 Alaska, 311; Heine v. Roth, 2 Alaska, 416. James W. Logan, 29 Land Dec. Dep. Int. 395. For a similar holding as to land below the high-water mark of the Missouri river, see Argillite Ornamental Stone Co., 29 Land Dec. Dep. Int. 585.

Bunker Hill & Sullivan Mining & Concentrating Co. v. Shoshone Min. Co., 33 Land Dec. Dep. Int. 142. the dip of the vein, but made prior to discovery and location of the apex, That a discovery and location only on will be upheld, is stated in VAN ZANDT v. ARGENTINE MIN. CO. (C. C., 8 Fed. 725. Compare Hope Min. Co. v. Brown, 7 Mont. 550, 19 Pac. 218. But "it is unquestioned law that the top or apex of a vein must be within the boundaries of the claim in order to enable the locator to perfect his location and obtain title." LARKIN v. UPTON, 144 U. S. 19, at page 21, 12 Sup. Ct. 614, 36 L. Ed. 330. Unless a location is on the apex of a vein, it is, of course, without extralateral right. IRON SILVER MIN. CO. v. MURPHY (D. C.) 3 Fed. 368.

previous prospector, who has abandoned or forfeited it, and adopting the discovery as one's own, is making a discovery. That the discovery is underground and secret is immaterial, if it is followed in proper time by the requisite acts of location on the surface; and, as we shall see later, a discovery of a blind vein in a statutory tunnel probably need not be followed by acts of location on the surface unless a patent is desired, or unless questions of extralateral rights are sought to be simplified by a surface location. Whether a vein. or lode has actually been discovered is a question of fact for the jury.10 Only one location can be based on one discovery.11

Discovery as Affected by Parties Between Whom Question Arises. What is a vein or lode for discovery purposes often depends somewhat upon the situation of the parties between whom the question

• Hayes v. Lavagnino, 17 Utah, 185, 53 Pac. 1029. But there can be no location on a discovery within the limits of an existing valid location, GWILLIM v. DONNELLAN, 115 U. S. 45, 5 Sup. Ct. 1110, 29 L. Ed. 348; except where the new location is made after forfeiture of the old, Russell v. Dufresne, 1 Alaska, 486. See Nevada Sierra Oil Co. v. Home Oil Co. (C. C) 98 Fed. 673; Fleming v. Daly, 12 Colo. App. 439, 55 Pac. 946; McMillen v. Ferrum Min. Co., 32 Colo. 38, 74 Pac. 461, 105 Am. St. Rep. 74. 7 "In Little Gunnell Co. v. Kimber, 1 Morr. Min. Rep. 536, Fed. Cas. No. 8,402, a secret underground working from an old claim was not allowed to hold as a valid basis for relocation of an adjoining claim; but that decision was upon the letter of the Colorado statute concerning relocations, which in terms requires a shaft to be sunk or other new opening to be made, nor had such secret discovery been followed by proper surface notice." Morrison's Mining Rights (13th Ed.) p. 44. See Reiner v. Schroeder, 146 Cal. 411, 80 Pac. 517. An offer to prove a secret underground discovery was properly rejected, where a previous discovery and location thereon by the adverse party were shown. McMillen v. Ferrum Min. Co., 32 Colo. 38, 74 Pac. 461, 105 Am. St. Rep. 74. A tunnel discovery was held to support surface location in BREWSTER v. SHOEMAKER, 28 Colo. 176, 63 Pac. 309, 53 L. R. A. 793, 89 Am. St. Rep. 188, though the tunnel was not located under the tunnel site act of Congress.

8 Chapter XIV, §§ 65, 66, infra.

9 Id.

10 Columbia Copper Min. Co. v. Duchess Mining, Milling & Smelting Co., 13 Wyo. 244, 79 Pac. 385; Charlton v. Kelly, 2 Alaska, 532. Locators, who recorded a location certificate reciting discovery and sold an interest on the faith of the record, were held estopped to deny that there had been a discovery in McCarthy v. Speed, 11 S. D. 362, 77 N. W. 590. See Eberle v. Carmichael, 8 N. M. 169, 42 Pac. 95. On evidence of a discovery, see Conway v. Hart, 129 Cal. 480, 62 Pac. 44; Ormund v. Granite Mt. Min. Co., 11 Mont. 303, 28 Pac. 289; Davidson v. Bordeaux, 15 Mont. 245, 38 Pac. 1075; Walsh v. Mueller, 16 Mont. 180, 40 Pac. 292.

11 See McKinstry v. Clark, 4 Mont. 370, 1 Pac. 759; Reynolds v. Pascoe, 24 Utah, 219, 66 Pac. 1064; Reiner v. Schroeder, 146 Cal. 411, 80 Pac. 517; Poplar Creek Consol. Quartz Mine, 16 Land Dec. Dep. Int. 1.