52. By location is meant both (1) the act or acts required to appropriate a mining claim, and (2) the mining claim itself. In this chapter meaning (1) is intended.

Location is sometimes used to include discovery, but here the word is used to cover all acts of location following discovery. These acts of location include: (a) The discovery notice; (b) the discovery shaft, or its equivalent; (c) the marking of the location upon the ground; (d) the posting of notices of location; and (e) record.

"Location is the act or series of acts by which the right of exclusive possession of mineral veins and the surface of mineral land is vested in the locator." 1 In its more restricted sense the word "location" excludes discovery,2 and it is used in that restricted sense here. It may, perhaps, exclude record, which in one sense may only proclaim the fact of location; but it is used here to include record. "The location of a mining claim is the act of appropriating a parcel of public mineral land in accordance with the provisions of the mining laws. The term is also applied to the parcel of land so appropriated."

4

Land to be embraced in one location must be parcel of the land where discovery is made, and must be embraced within one set of

1 Creede & C. C. Min. & Mill. Co. v. Uinta Tunnel, Min. & Transp. Co., 196 U. S. 337, 346, 25 Sup. Ct. 266, 49 L. Ed. 501.

2 Uinta Tunnel, Min. & Transp. Co. v. Ajax Gold Min. Co., 141 Fed. 563, 73 C. C. A. 35.

* See Morrison's Mining Rights (13th Ed.) pp. 25, 26. 4 Tomera Placer Claim, 33 Land Dec. Dep. Int. 560. nature of a location, see chapter XX, § 108.

For the property

boundary lines. The acts of location normally follow discovery and in general consist of (1) the posting of a discovery notice; (2) the sinking of a discovery shaft or its equivalent; (3) the marking of boundaries; (4) the posting of a location notice; (5) the recording of the proper papers. If only the acts of location are completed before the rights of third persons intervene, the order in which the acts are performed is immaterial. The validity of the location is to be tested, of course, by the law in force at the time the location. is made.'

THE DISCOVERY OR PROSPECTOR'S NOTICE.

53. Custom and prudence everywhere, and statutes in some states, call for the posting of a notice of discovery, giving the date of discovery and containing a statement that the statutory time to complete location is claimed. This notice should be posted or written on a stake, called the "discovery stake," or on the discovery monument prescribed by statute, and placed at the point of discovery. In Idaho the distance claimed along the vein each way from the discovery monument must be stated in the notice.

The Discovery Notice.

It has been the universal custom in the mining region for prospectors to put up a temporary notice at the point of discovery, so as to apprise all comers that a discovery has been made on which a location is to be perfected. In Idaho such a temporary notice is required by statute. In that state the discoverer, at the time of discovery, must erect a discovery monument and give notice of discovery, by placing on the monument his name, the name of the claim, the date of discovery, and the distance claimed along the vein each way from the monument. In New Mexico a discovery notice is unknown to the local law; but it is held that the discovery and the posting of the regular notice of location must be practically contemporaneous, and the regular notice of location, therefore, fully answers the purpose of a discovery notice. The same is probably true under the Montana statute of 1907,10 and is certainly true in Utah, where the statute re

• Id.

8

• PERIGO v. ERWIN (C. C.) 85 Fed. 904; Thompson v. Spray, 72 Cal. 528, 14 Pac. 182; Strepey v. Stark, 7 Colo. 614, 5 Pac. 111; Heman v. Griffith, 1 Alaska, 264; Charlton v. Kelly, 2 Alaska, 532.

7 WILSON v. FREEMAN, 29 Mont. 470, 75 Pac. 84, 68 L. R. A. 833.

2 Ann. Codes Idaho (Civ. Code) 1901, § 2557.

Deeney v. Mineral Creek Milling Co., 11 N. M. 279, 67 Pac. 724.

10 Laws Mont. 1907, p. 18.

quires the location notice to be posted at the time of making discov

ery.

Reason for Discovery Notice.

The purpose of the discovery notice is to show that there has been no abandonment of location rights, and it would seem that a discovery notice, or something equivalent, is absolutely essential where one is seeking to locate a vein which outcrops so fully that all who go by may see it with the naked eye. A written notice would seem not to be essential, in the absence of a statute like that in Idaho, provided work is already begun and any prospector could see, from tools on the ground and the state of the work, that the acts of location were in process of completion; but some kind of notice certainly would seem to be vital.11 The whole spirit of American mining law, as evidenced in the practically uniform custom to post a discovery notice, calls for a notice of discovery, and preferably a written. notice. But a notice which is not followed by a marking of the location on the ground, and which does not contain a description identifying the claim by reference to some natural object or permanent monument, does not create a location.12

Contents of Discovery Notice.

The particularity required by the Idaho statute need not, of course, be observed elsewhere, yet fairness requires everything called for by that statute. Taking the names contained in Erhardt v. Boaro,13 a proper discovery notice would be:

"Hawk Lode.

"The undersigned have discovered this lode, and claim 750 feet on it each way from discovery. They also claim the statutory time to complete location.

"Date of discovery, June 17, 1907.

"Joel B. Erhardt. "Thomas Carroll."

Except in Idaho, the number of feet each way from discovery need not be stated, and almost any kind of informal notice will do. The Idaho discovery notice is required to be as full as the posted loca

11 See 1 Snyder on Mines, § 375. On the value of discovery notice, see Omar v. Soper, 11 Colo. 380, 18 Pac. 443, 7 Am. St. Rep. 246. In Washington It gives a reasonable time in which to mark boundaries. Union Min. & Mill. Co. v. Leitch, 24 Wash. 585, 64 Pac. 829, 85 Am. St. Rep. 961.

12 Malececk v. Tinsley, 73 Ark. 610, 85 S. W. 81.

18 113 U. S. 527, 5 Sup. Ct. 560, 28 L. Ed. 1113.

COST.MIN.L.-12

tion notice is in Colorado.14 For Colorado the following would answer for discovery:

"Hawk Lode.

"The undersigned claim the statutory time to complete location of this lode, discovered June 17, 1907.

"Joel B. Erhardt. "Thomas Carroll."

DISCOVERY SHAFT OR ITS EQUIVALENT.

54. A discovery shaft, sunk on unappropriated public land embraced within the claim sought to be located, or the statutory equivalent of a discovery shaft, is by local statutes in most jurisdictions made essential to a lode location. The discovery shaft must comply with the local statutory requirements as to width, depth, disclosure of vein, etc. The equivalents of a discovery shaft are an adit, a cross cut, an open cut, and a tunnel, disclosing the length of vein, or cutting the vein at the depth, and excavating the number of cubic feet, prescribed by the local statute.

Alaska, California, and Utah leave the question of requiring a discovery shaft to district rules. In the other mining law states and territories the shaft, in addition to disclosing a well-defined vein, must be at least 10 feet deep; the depth being measured from the lowest part of the surface rim.15 No width is usually prescribed; but, of course, such size of opening must be made as ordinary miners could reasonably regard as a shaft. A drill hole would not suffice.16 In Nevada the shaft must be 4 feet by 6 feet and sunk to at least 10

14 See Mills' Ann. St. Colo. § 3152.

15 "In the instance of a shaft sunk, not vertical, but following a vein with a heavy pitch, it is obvious that a slight difference would exist between a vertical measurement and a measurement following the pitch of the shaft; the latter measurement being the shorter distance and favoring the prospector. And although usually the measurement is taken vertically, yet in such case we do not see but that the measure following the dip would strictly conform to the law, unless, as in Montana, the statute mentions vertical depth specifically. * After a shaft has been sunk ten feet, the ground at the collar may cave, or the shaft may become filled with débris, or the making of a platform or raised collar may make it difficult to ascertain the exact line of the original rim of the shaft, or to ascertain its original bottom. In view of these facts, and of the essential importance of the shaft being full ten feet deep, it is always advisable to sink it two or three feet deeper, and remove all ground for cavil or contention." Morrison, Mining Rights (13th Ed.) p. 40.

16 Morrison, Mining Rights, p. 33.

feet in depth;17 while in Montana the shaft must be sunk vertically 10 feet, or as much more as is necessary to disclose the vein or deposit located, and the cubical contents of such shaft must be not less than 75 cubic feet, if the vein is found short of 10 feet, and at least 150 cubic feet otherwise, and any deficiency of the 150 cubic feet above 75 may be made up by other excavations.18 The Montana requirement is likely to be adopted in other states.

Reason for Discovery Shaft Requirement.

The chief purpose of requiring a discovery shaft is to demonstrate the presence of a vein; but it also serves another purpose, namely, "to compel the discoverer to manifest his intention to claim the ground in good faith under the mining laws." 19 It is this latter purpose that causes perplexity when we ask whether, by laying out two locations with a common end line, which bisects one discovery shaft in such a way as to disclose the vein as existing in each location, the locator has a discovery shaft for both.

Two Locations Claimed through One Discovery Shaft.

FIGURE No. 4.

CLAIM A

CLAIM B

DISCOVERY VEIN

DISCOVERY SHAFT

The chief purpose of a discovery shaft has been fulfilled for both locations in the case illustrated by Figure No. 4; but the locator is endeavoring to get by one exertion twice what the law intended him. to have thereby. The fact that a discovery shaft sunk by a junior locator is good, even though it be cut in two by the line of the senior location,20 may be disregarded, because in that case only one location is predicated upon one discovery and one discovery shaft. To claim. two locations through one discovery shaft of only the depth required for one claim is clearly to act in bad faith, and in such bad faith that

17 Laws Nev. 1907, p. 419, c. 194, § 2.

18 Laws Mont. 1907, p. 20.

In Colorado, prior to the act of

191 Lindley on Mines (2d Ed.) § 344. 1866, development work was required by miners' rules and customs. solidated Rep. M. M. Co. v. Lebanon M. Co., 9 Colo. 343, 12 Pac. 212.

Con

20 See UPTON v. LARKIN, 7 Mont. 449, 17 Pac. 728; Id., 144 U. S. 19, 12 Sup. Ct. 614, 36 L. Ed. 330; Phillips v. Brill (Wyo.) 95 Pac. 856 (placer); Healey v. Rupp, 28 Colo. 102, 63 Pac. 319.