patch for the discovery of lodes and for mining purposes. The certificate also contained a full description of the boundaries of the tunnel site as claimed.

In a general way it may be said that the defenses which were stricken out were a priority of right and an estoppel. We quote these paragraphs from the answer:

“It further avers that the patent of the United States issued for said Ocean Wave and Little Mary lodes and lode mining claims was issued subject to the act of Congress in reference to tunnel rights, and subject to the laws of the state of Colorado in reference to the right to run tunnels through ground that may be patented, for the purpose of reaching territory that belongs to tunnel owners beyond such patented claims, and subject to the rights which the defendant, The Uinta Tunnel Mining & Transportation Company and its grantors, had acquired by reason of the location of said Uinta tunnel, and in and to any and all lodes, veins, and mining claims that it might cut or discover in driving said tunnel, as is guaranteed to the locator of said tunnel under and by virtue of § 2323 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 1426); that the pretended discovery alleged and pretended to have been made in and upon said pretended Ocean Wave and Little Mary lodes and lode mining claims, and by virtue of which the plaintiff claims the right to patent the same under the laws of the United States, was not made until long after the location of said Uinta tunnel, and at the time said pretended locations were made said locators thereof were advised and knew that said tunnel had been located and had been and was being prosecuted with due diligence and in strict compliance with the terms and conditions of the statutes of the United States and of the state of Colorado, which authorize and provide for the location and prosecution of such tunnels, and which define and determine the rights pertaining thereto; and that said pretended Ocean Wave and Little Mary lode mining claims, so far as the same may be now claimed and possessed by said plaintiff, were taken and held subject to the rights of this defendant as owner of said Uinta tunnel, located in accordance with § 2323 of the Revised Statutes of the United States, and also subject to the rights of this defendant to cross said claims, and to drive drifts therein, and to follow said lode claims as located by this defendant, and to reach lode claims so owned by this defendant, as hereinbefore and hereinafter stated.

| tion to said expenditures have also expended upon surface work, in improvements and expenses, the further sum of not less than ten thousand dollars ($10,000).

"It alleges that its work and the work of its said grantors in and upon said tunnel has been done openly and without concealment; that the same has been at all times prosecuted under the claim of the defendant and its grantors of the right so to do by virtue of the location of said tunnel and tunnel site location, under and by virtue of the laws of the United States, and under the provisions of § 2323 of the Revised Statutes of the United States; and that the expenditures thereof and the developments made thereon have been made in compliance with the terms and provisions of, and in reliance upon, said statute.

"That the plaintiff, by permitting and allowing this defendant to expend more than the sum of one hundred and thirty-five thousand dollars ($135,000) as aforesaid in reaching, uncovering, and discovering said ore body, has no right to interfere with the defendant in operating its tunnel over, through, and along said pretended Ocean Wave and Little Mary lodes and lode mining claims, but that, on the contrary, the plaintiff, by its conduct and actions in the premises as hereinabove recited and set forth, has permitted and allowed the defendant to expend said sum of one hundred and thirtyfive thousand dollars ($135,000), and has permitted and allowed the defendant so to proceed with said tunnel through and across said pretended Ocean Wave and Little Mary lodes and lode mining claims until the same has ripened into such a license and permission as entitled the defendant to use its said tunnel as it penetrates said pretended Ocean Wave and Little Mary lodes and lode mining claims, and that said license and permission is such that the defendant cannot be disturbed therein."

It was also alleged that the tunnel had been driven some 2,200 feet; that it entered the ground of the plaintiff at about 550 feet from its portal, and in running through that ground the tunnel was driven 625 feet, leaving the plaintiff's ground at about 1,175 feet from the portal; that after passing it the defendant discovered in the tunnel three or four blind lodes, which it duly located; and it was not until after the discovery and location of these lodes that the plaintiff commenced this action.

the title to the land passes from the government, the minerals therein are "free and open to exploration and purchase." A lode locator acquires a vested property right by virtue of his location (Clipper Min. Co. v. Eli Min. & Land Co. 194 U. S. 220, 48 L. ed. 944, 24 Sup. Ct. Rep. 632); but what is the extent of that property right? Section 2322 (U. S. Comp. Stat. 1901, p. 1425) defines it as follows: "The locators shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations." The express grant to the locator made by this section includes only the surface and the veins apexing within the boundaries of the location. Until, therefore, by entry and payment to the government, the equitable title to the ground passes to the locator, he is in no position to question any rights of exploration which are granted by other provisions of the statute. The fee still remains in the government. By § 2320 (U. S. Comp. Stat. 1901, p. 1424) it is provided that "no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located." And by § 2324 (U. S. Comp. Stat. 1901, p. 1426): "The miners of each mining district may make regulations not in conflict with the laws of the United States, or with the laws of the state or territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim, subject to the following requirements: The location must be distinctly marked on the ground, so that its boundaries can be readily traced. All records of mining claims hereafter made shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located, by reference to some natural object or permanent monument, as will identify the claim." Tunnel rights are granted by § 2323 (U. S. Comp. Stat. p. 1426) which reads:

"Where a tunnel is run for the development of a vein or lode, or for the discovery of mines, the owners of such tunnel shall have the right of possession of all veins or lodes within three thousand feet from the face of such tunnel on the line thereof, not previously known to exist, discovered in such tunnel, to the same extent as if discovered from the surface; and locations on the line

of such tunnel of veins or lodes not appearing on the surface, made by other parties after the commencement of the tunnel, and while the same is being prosecuted with reasonable diligence, shall be invalid; but failure to prosecute the work on the tunnel for six months shall be considered as an abandonment of the right to all undiscovered veins on the line of such tunnel."

It does not appear from the answer or testimony that the tunnel had reached the boundaries of the plaintiff's claims prior to the entry or even prior to the patent. For the purpose of this case, therefore, we must assume that, although its line had been marked out,-a line extending through the plaintiff's ground, yet in fact no work had been done within such ground prior to the patent.

The propositions upon which the plaintiff relies are that discovery is the initial fact; that the patent when issued relates back to that initial fact and confirms all rights as of that date; that no inquiry is permissible as to the time of that discovery, it being concluded by the issue of the patent; that such time antedated anything done in or for the tunnel; that no adverse proceedings were instituted after it had applied for patent, and that, therefore, its right became vested in the ground, the same right which any other landowner has, and which could not be disturbed by the defendant by means of its tunnel. St. Louis Min. & Mill. Co. v. Montana Min. Co. 194 U. S. 235, 48 L. ed. 953, 24 Sup. Ct. Rep. 654.

On the other hand, defendant contends that, as the first record in any office of the government was the record of the entry on August 5, 1893, the patent issued in an ex parte proceeding is conclusive only that every preceding step, including discovery, had then been taken; that it in fact located its tunnel site prior to any discovery or marking on the ground of plaintiff's claim; that it was not called upon to adverse plaintiff's application for a patent, because no patent is ever issued for a tunnel, and it had not then discovered any veins within its tunnel; that plaintiff, with full knowledge of defendant's tunnel location, permitted the driving of the tunnel through its ground and beyond, at an expenditure of $135,000, and made no objection until the discovery of the veins beyond its ground, and then, for the first time, and to prevent defendant from developing such veins, brought this action, and that by such acquiescence it was now estopped to question defendant's use of the tunnel.

Obviously the parties divide as to the effect of plaintiff's patent. The circuit court held with the plaintiff, the court of appeals with the defendant. It may be conceded

In order to reach a clear understanding of the question it seems necessary to consider the legislation. Three things are provided for: discovery, location, and patent. The first is the primary, the initial fact. The others are dependent upon it, and are the machinery devised by Congress for securing to the discoverer of mineral the full benefit of his discovery. Chap. 6 of Title 32, Rev. Stat., is devoted to the subject of "Mineral Lands and Mining Resources." The first section, 2318 (U. S. Comp. Stat. 1901, p. 1423), reserves mineral lands for sale, except as expressly directed. The next provides that all valuable mineral deposits in government lands shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase. In the next it is declared that no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim. The whole scope of the chapter is the acquisition of title from the United States to mines and mineral lands, the discovery of the mineral being, as stated, the initial fact. Without that no rights can be acquired. As said by Lindley, in his work on Mines, 2d ed., vol. 1, § 335: "Discovery, in all ages and all countries, has been regarded 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

nized 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. li cagher, 104 U. S. 279, 284, 26 L. ed. 735, 737, 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 Silver Min. Co. 144 U. S. 658, 664, 36 L. ed. 583, 585, 12 Sup. Ct. Rep. 779, 781, is this language:

"Section 2324 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 1426) 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, 28 L. ed. 1113, 1115, 1116, 5 Sup. Ct. Rep. 560; Butte City Water Vo. v. Baker, 196 U. S. 119, 25 Sup. Ct. Rep. 221, 49 L. ed. 409.

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, 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 St. Louis Smelting & Ref. Co. v. Kemp, 104 U. S. 636, 649, 26 L. ed. 875, 879, 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 P. R. Co. v. Sanders,

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 10 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 10-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, 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 Colo. 176, 180, 53 L. R. A. 793, 798, 89 Am. St. Rep. 188, 190, 63 Pac. 309, 310, 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, Mines, 2d ed. § 330, the author says:

"The order in which the several acts required by law are to be performed is nonessential, in the absence of intervening rights. The marking of the boundaries may precede the discovery, or the discovery may

In 1 Snyder, Mines, § 354, it is said: "While the general rule is, as stated elsewhere in the foregoing 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' 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 Re Mitchell, 2 Land Dec. 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 Land Dec. 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, 35 C. C. A. 482, 93 Fed. 608."

Reference is made to the statement of Secretary Smith in Etling v. Potter, 17 Land Dec. 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 P. R. Co. v. Marshall), he said:

"In the location of a mineral claim, placer or lode, the first requirement of the law is a discovery. §§ 2319, 2320 Rev. Stat. U. S. Comp. Stat. 1901, p. 1424. All rights inuring to the benefit of the locators are based upon this initial act. Erhardt v. Boaro, 113 U. S. 537, 28 L. ed. 1116, 5 Sup. Ct. Rep. 565; United States v. Iron Silver Min. Co. 128 U. S. 673, 32 L. ed. 571, 9 Sup. Ct. Rep. 195; O'Reilly v. Campbell, 116 U. S. 418, 29 L. ed. 669, 6 Sup. Ct. Rep. 421.

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 Min. Co. v. Orient Min. Co. 6 Sawy. 299. 1 Fed. 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 Min. Co. v. Bodie Consol. Min. Co. 7 Sawy. 96, 11 Fed. 666, 676.

In Cedar Canyon Consol. Min. Co. v. Yarwood, 27 Wash. 271, 91 Am. St. Rep. 841, 67 Pac. 749, 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. Home Oil

Co. 98 Fed. 673; Erwin v. Perego, 35 C. C. A. 482, 93 Fed. 608; Jupiter Min. Co. v. Bodie Consol. Min. Co. 7 Sawy, 96, 11 Fed. 666; 1 Lindley, Mines, § 335, and cases cited."

See especially Erwin v. Perego, cited in this quotation, decided by the court of appeals for the eighth circuit. Tending in the same direction are Thompson v. Spray, 72 Cal. 528, 533, 14 Pac. 182; Gregory v. Pershbaker, 73 Cal. 109, 118, 14 Pac. 401; Tuolumne Consol. Min. Co. v. Maier, 134 Cal. 583, 585, 66 Pac. 863.

Its language is "no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located." claim located." Does that require that a discovery must be made before any marking on the ground, especially when, as under the Colorado statutes, several other steps in the process of location are prescribed, or does it mean that no location shall be considered as complete until there has been a discovery? Bearing in mind that the principal thought of the chapter is exploration and appropriation of mineral, does it mean anything more than that the fact of discovery shall exist prior to the vesting of that right of exclusive possession which attends a valid location?

This may be looked at in another aspect. Suppose a discovery is not made before the marking on the ground and posting of notice, but is then made, and it and all other statutory provisions are complied with before the entry, which is an application for the purchase of the ground,-of what benefit would it be to the government to require the discoverer to repeat the marking on the ground, the posting of notice, and other acts requisite to perfect a location? If everything has been done which, under the law, ought to be done to entitle the party to purchase the ground, wherein is the government prejudiced if the precise order of those acts is not followed? Or, to go a step farther, suppose, on an application for a patent, an adverse suit is instituted, and on the trial it appeared that the plaintiff in that suit had made a discovery and taken all the steps necessary for a location in the statutory order, although not until after the applicant for the patent had done everything required by law, would there be any justice in sustaining the adverse suit, and awarding the property to the plaintiff therein, on the ground that the applicant had not made any discovery until the day after his marking on the ground, and so the discovery did not precede the location?

These suggestions add strength to the concurring opinion of three leading commentators on mining law, the general trend of the rulings of the department and decisions of the courts, to the effect that the order in

which the several acts are done is not essential, except so far as one is dependent on another. Doubtless a locator does not acquire the right of exclusive possession unless he has made a valid location, and discovery is essential to its validity; but if all the acts prescribed by law are done, including a discovery, is it not sacrificing substance to form to hold that the order of those acts is essential to the creation of the