Fed. Rep. 787; Dobler v. N. P. R. R. Co., 17 L. | the absence of allegations to that effect prior D. 103. 118. Proof of the sale of the claim two years after the issuance of the town site patent is not proof of the known mineral value of the land at the date of said patent. Richards v. Dower, 81 Cal. 44; 22 Pac. Rep. 304. See S. C., 151 U. S. 658. to the issuance of patent. Wandering Boy Lode, 2 C. L. O. 2. 126. An affidavit of claimant's citizenship made by him is sufficient proof, not only before the Land Department, but before the courts, in all cases arising under chapter 6, title XXXII, United States Revised Statutes. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299, 503; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529. See, also, North Noonday M. Co. v. Orient M. Co., 11 Fed. Rep. 125. 119. As between mineral claimants, when it is alleged by one that the lode claim of the other was not based on a valid discovery prior to location, it is no part of the defense to show the existence of a valuable deposit of mineral. The value of the mineral deposit is a matter into which the government does not inquire after discovery and location, save in contro-ciation of persons unincorporated, of the affiversies between mineral and agricultural claimants. Tam v. Story, 21 L. D. 449. 120. An applicant for a mineral patent must show the land claimed to contain valuable mineral, and that the improvements upon the claim tend to its development. John Downs, 7 L. D. 71. 121. Land to be enterable under the mineral land law must be shown to contain mineral in such quantities as will render profitable the working of the claim. It must, under the placer law, contain a valuable deposit. Royal K. Placer, 13 L. D. 86. 122. The non-mineral character of land claimed as a mill site must be affirmatively shown under oath. Alta Mill Site, 8 L. D. 195; Gold Springs & Denver City Mill Site, 13 L. D. 175; Patterson Quartz Mine, 4 C. L. O. 3. 5. Citizenship. (See CITIZENSHIP, p. 48.) 123. In the absence of evidence to the contrary, locators are presumed to be either citizens or to have declared their intention to become such. Garfield M. & M. Co. v. Hammer, 6 Mont. 53; 8 Pac. Rep. 153. See S. C., 130 U. S. 291. 124. Locators of mining claims must be citizens. A transfer by an alien does not cure the defect, and the claim of the transferees is not good. The presumption, however, is in favor of the locators' qualifications. Want of qualifications must be proved. Golden Fleece G. & S. M. Co. v. Cable Cons. G. & S. M. Co., 12 Nev. 312; 1 Mor. Min. Rep. 120; 15 Nev. 450. 125. Locators and intermediate owners of mining claims will not be presumed aliens in 127. On adverse suit, proof of citizenship may consist, in case of an individual, of his own affidavit thereof, and, in case of an asso davit of their authorized agent made upon his own knowledge, or upon information and belief. O'Reilly v. Campbell, 116 U. S. 418. 128. The testimony of one plaintiff that he was a citizen of the United States at the time of location, and that the other plaintiffs were his children, born in California, is sufficient proof of citizenship of the plaintiffs at the time of location by them. Thompson v. Spray, 72 Cal. 528; 14 Pac. Rep. 182. 129. The oath to a notice of location required by the Montana statutes, in which it is asserted by one of several locators that all of the locators are citizens of the United States, is prima facie proof of such citizenship. Hammer v. Garfield M. & M. Co., 130 U. S. 291. 130. On an adverse suit, if the citizenship of parties is not shown, the omission is fatal to their right of recovery. O'Reilly v. Campbell, 116 U. S. 418. 131. In a suit for trespass upon a mining location the plaintiff must show citizenship, and if the defendant justifies under another location he must show citizenship, as no rights could be acquired by a location without such qualification. Bohannon v. Howe, 2 Idaho, 417; 17 Pac. Rep. 583. 132. A corporation, applicant for a mining patent, must show compliance with local requirements in the matter of filing its arti cles of incorporation with the proper officer; but if such evidence is on file in one entry, reference may be made thereto in subsequent entries in lieu of again furnishing the same. Alta Mill Site, 8 L. D. 195; 9 L. D. 48 (review). 133. Proof of citizenship of a corporation under the United States mining law may consist of a certificate by the proper officer that the company is incorporated. A certified copy of the articles of incorporation need not be furnished. Silver King M. Co., 20 L. D. 116; Rose Nos. 1 and 2 Lodes, 22 L. D. 83. 134. Evidence that one whose citizenship is in question has voted is admissible as tending to show citizenship. S. P. R. R. Co. v. Brown, 9 L. D. 173; Jones v. S. P. R. R. Co., 19 L. D. 270. 135. The fact that a party was not a citizen before disposing of the claim must be affirmatively shown by an adverse claimant. Kempton Mine, 1 C. L. O. 178. 6. Dip-Apex. (See VEINS OR Loves, p. 17.) 136. The burden is upon one who asserts the right to follow a lode on its dip into the claim of another to show that he has a valid location on the apex of the lode. Gilpin v. Sierra Nevada Cons. M. Co., 2 Idaho, 662; 23 Pac. Rep. 577; Iron Silver M. Co. v. Campbell, 17 Colo. 267; 29 Pac. Rep. 513. (See S. C., 135 U. S. 286.) Stevens v. Gill, 1 Mor. Min. Rep. 566, 576; 16 Am. Rep. 304; Stevens v. Williams, 1 McCrary, 480; 1 Mor. Min. Rep. 557. 137. One claiming the right to follow a lode outside his claim must show the same to be a continuous streak of quartz, ore or vein matter, not merely an indication such as a miner would follow with the expectation of finding ore. Fitzgerald v. Clark, 157 U. S. 696. See 17 Mont. 100; 42 Pac. Rep. 273. 138. When a vein or lode located on the apex passes on the dip outside the plane of the side lines extended vertically and encroaches on another's vein, it must be shown that the vein passing outside the side lines is a continuation of the vein located in order to give the right to pursue it. Iron Silver M. Co. v. Cheesman, 116 U. S. 529. See 2 McCrary, 191; 9 Mor. Min. Rep. 552. 139. The right to follow a lode on its dip rests on the ability to show a continuous body of ore from the apex on which the location is made to the ground in controversy. Hyman v. Wheeler, 29 Fed. Rep. 347; 15 Mor. Min. Rep. 519. 140. On the issue of continuity of a vein, expert testimony is admissible. Kahn v. Old Telegraph M. Co., 2 Utah, 174; 11 Mor. Min. Rep. 645. 141. The owner of a mining claim is prima facie owner of all minerals inside his surface lines; but if evidence is introduced going to show that the vein in controversy has its apex outside of the claim, he must prove his right to it by proving its apex to be inside. Jones v. Prospect Mtn. Tunnel Co., 21 Nev. 339; 31 Pac. Rep. 642; Cons. Wyoming M. Co. v. Champion M. Co., 63 Fed. Rep. 540. (Refusing to follow Bell v. Skillicorn, 28 Pac. Rep. 768.) 142. One following a vein on its dip into the claim of another need only show the apex to be outside of such claim to defeat a suit by the owner of the same. Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 11 Mor. Min. Rep. 411. 143. In a controversy as to ownership of the vein on the dip, the issuance of patent does not prove the correctness of the Land Department records as to the date of location; but this must be proved as any other matter would be. Last Chance M. Co. v. Tyler M. Co., 9 U. S. App. 613; 61 Fed. Rep. 557; Kahn Min. Rep. 645; Champion M. Co. v. Cons. Wyv. Old Telegraph M. Co., 2 Utah, 174; 11 Mor. oming G. M. Co., 75 Cal. 78; 16 Pac. Rep. 513. 7. Discovery. (See DISCOVERY, p. 32.) 144. A discovery will be presumed from the fact of location, unless there are allegations to the contrary. Cheesman v. Shreeve, 40 Fed. Rep. 787; Cheesman v. Hart, 42 Fed. Rep. 98; Sprucemont M. Co. v. Lewis, Sickel's Min. Dec. 214. 145. The record of a location certificate is presumptive evidence that a discovery was made as alleged therein. Cheesman v. Shreeve, 40 Fed. Rep. 787. 146. In the absence of an adverse claim it will be presumed that a lode exists in land covered by a regularly located lode mining claim. Apple Blossom Placer v. Cora Lee Lode, 21 L. D. 438. 147. Discovery will be presumed where there is no adverse claim filed or fraud shown, and the evidence is conflicting on that point. Wight v. Tabor, 2 L. D. 741. 148. Evidence that the discovery shaft is not upon claimed ground is admissible as going to show the invalidity of the claim. McGinnis v. Egbert, 8 Colo. 41; 5 Pac. Rep. 653; 15 Mor. Min. Rep. 329. 149. When the validity of a claim depends upon whether a lode has been discovered and located, evidence that such claim contains a vein within its boundaries at places other than at the discovery point is admissible. Harrington v. Chambers, 3 Utah, 94; 1 Pac. Rep. 362. See 111 U. S. 350. 150. A discovery, although not made in the discovery shaft, may form the basis of a valid location. Hence, evidence of such a discovery is properly admissible. O'Donnell v. Glenn, 8 Mont. 248; 19 Pac. Rep. 302. 151. A mineral discovery, sufficient to warrant the location of a mining claim, may be regarded as proven where mineral is found, and the evidence shows that a person of ordinary prudence would be justified in the further expenditure of his labor and means with a reasonable prospect of success in develop ing a valuable mine. Harrington v. Chambers, 3 Utah, 94; 1 Pac. Rep. 362; Shreeve v. Copper Bell M. Co., 11 Mont. 309; 28 Pac. Rep. 315; Davis' Adm'r v. Weibbold, 7 Mont. 107. (See S. C., 139 U. S. 507.) Castle v. Womble, 19 L. D. 455. 152. When the complaint in an action to annul a patent alleged in substance that no discovery had been made, and the evidence is conflicting, proof that the claim was considered valuable for mining purposes was held to be sufficient proof of its mineral character, and the patentees were not obliged to show that there was a reasonable probability of the claim becoming a source of profit to constitute it a mine within the meaning of the statute. United States v. King, 9 Mont. 75; 22 Pac. Rep. 498. 153. In an adverse suit to determine the right of possession of mining property, a finding by the jury that the plaintiff did not discover a vein or lode on the disputed premises will be set aside as contrary to the evidence where there was uncontradicted testimony by plaintiffs that they had sunk a shaft and had on a certain day discovered a vein or lode, and the indications were sufficient to warrant further work in exploiting it. Walsh v. Mueller, 16 Mont. 180. 154. Expert testimony is admissible to show that a claim contains such a vein as the miner discovering it would be likely to follow with the reasonable expectation of finding paying ore. Harrington v. Chambers, 3 Utah, 94; 1 Pac. Rep. 362 155. Evidence as to the extent and richness of the vein as developed subsequent to location is inadmissible for the purpose of showing the location to have been based upon a discovery thereof. Upton v. Larkin, 7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. Rep. 404. See S. C., 5 Mont. 600; 6 Pac. Rep. 66. 156. An assay of rock taken from a claim subsequent to the location may tend to show that at date of location a lode existed within the claim, and so may tend to strengthen evidence of a discovery at date of location. Southern Cross Cons. G. & S. M. Co. v. Europa M. Co., 15 Nev. 389; 9 Mor. Min. Rep. 513. 157. Evidence of discovery must be clear and positive. Robert S. Hale, 3 L. D. 536; Silver Jennie Lode, 7 L. D. 6. 158. A discovery having been made, the probable value of the land for mineral may be shown by testimony as to the value of neighboring tracts. Hamilton v. Anderson, 19 L. D. 168. 159. A discovery need not be shown on each legal subdivision of a coal claim if the evidence goes to show the presence of coal thereon. Hamilton v. Anderson, 19 L. D. 168. 8. Entry. (See ENTRY, p. 239.) 160. In the Federal courts a certificate of entry of land may not be considered as evidence of the holder's legal title, as the making of entry vests only equitable title in the entryman. Langdon v. Sherwood, 124 U. S. 74. 161. It is a general rule of law that a certificate of entry, like a patent, is conclusive of legal title, but this rule will not be followed where entry was made by defendant in an adverse suit after the dismissal of such suit where the suit was thereafter reinstated, and the cause will be tried as though it had never been dismissed. McEvoy v. Hyman, 25 Fed. Rep. 539; 15 Mor. Min. Rep. 300. 162. Proof of the signature of the Register must be submitted to render a certificate of entry admissible in evidence. Jackson v. McMurray, 4 Colo. 76; 12 Mor. Min. Rep. 164. 163. In an action upon an adverse claim, where plaintiffs, as evidence of their title, had introduced the Receiver's receipt for the entry thereof, it is admissible for the defendants to prove, by decisions of the Land De partment, that the receipt had been canceled and set aside on the protest against the issuance of patent. Murray v. Polglase, 17 Mont. 455; 43 Pac. Rep. 505. 164. Where a mineral entry has been allowed on satisfactory evidence of compliance with the law, the burden is upon a contestant to show non-compliance. Hargrove v. Robertson, 15 L. D. 499. 165. The allowance of a mineral entry on land returned by the United States Surveyor General as agricultural, overcomes the presumption raised by such return, and the burden of proof is thereafter upon one alleging the non-mineral character of the land. Walton v. Batten, 14 L. D. 54. 166. The allowance of mineral entry is an adjudication of the mineral character of the land entered, and the burden of proof is thereafter upon one who alleges its non-mineral character. Johns v. Marsh, 15 L. D. 196. 167. A contestant against a pre-emption entry who alleges the land to have been known to be mineral at date of pre-emption entry has the burden of proving that it was more valuable for mining than for agricultural purposes. Tinkham v. McCaffrey, 13 L. D. 517. | | | error to strike out of the answer that the Surveyor General for Montana took the evidence required by law, and decided that the work and improvements equaled $500. United States v. King, 9 Mont. 75; 22 Pac. Rep. 498. 171. "Work done outside of a mining claim, and with direct relation to the claim, may be considered as work done on the claim. The evidence of such work having been done should be received with great caution, and it should appear clearly that such work was intended for the improvement of such claim and no other." Kramer v. Settle, 1 Idaho, 485; 9 Mor. Min. Rep. 561. 172. Where an expense of sharpening picks as a part of the authorized work on a mining claim is sought to be proved, the exclusion of the evidence is proper where the counsel refused to inform the court, although requested to do so, as to whether he wished to show that the picks had been sharpened on the premises or before they were taken there. Hirschler v. McKendricks, 16 Mont. 211; 40 Pac. Rep. 290. 173. An ore-house, alleged to have been built for the development of a claim, must be proven to be used in connection with that particular claim on which it is built. McCaig v. Bryan, 10 Colo. 309; 15 Pac. Rep. 413. 168. Where a mineral entry was allowed on insufficient evidence of compliance with 174. The final decision, under judicial prothe law in the matter of expenditure upon ceedings, that the claimant is not entitled to the claim, supplemental evidence of com- any credit for work done on the claim, renpliance with the law may be submitted inders it necessary that the supplementary evithe absence of a protest or adverse claim. James D. Rankin, 7 L. D. 411. 169. A decision of the local office "that the entry is held for cancellation subject to the right of further appeal" is not, when offered in evidence upon trial of adverse suit, open to objection that it does not cancel, but merely recommends cancellation. The effect of a decision of this kind is not destroyed by the use of such language. Murray v. Polglase, 17 Mont. 455; 43 Pac. Rep. 505. 9. Expenditure. (See EXTENDITURE, p. 224.) dence should clearly show that the value of the improvements or labor done upon or for the development of the claim since the date of said proceedings is not less than $500. James D. Rankin, 7 L. D. 411. 175. "In estimating the amount of work or improvements, the test is the reasonable value thereof." Mattingly v. Lewisohn, 8 Mont. 259; 35 Pac. Rep. 111. 176. The amount paid for performance of annual labor is not conclusive of its value, but is properly admissible in evidence. Quimby v. Boyd, 8 Colo. 194; 6 Pac. Rep. 462. 177. An affidavit of annual labor, where 170. Under section 2325, United States Re-authorized by law to be filed as prima facie vised Statutes, the certificate of the United States Surveyor General is evidence of the sufficiency of the work performed and improvements made upon a mining claim in his State, and in an action to annul a patent it is evidence of performance of the labor, may be filed as soon as the labor is done, even if before the expiration of the time limited therefor. McGinnis v. Egbert, 8 Colo. 41; 5 Pac. Rep. 653; 15 Mor. Min. Rep. 329. 178. An affidavit of performance of annual labor, when recorded, is prima facie proof of compliance with law in this respect under the Montana statutes. Coleman v. Curtis, 12 Mont. 301; 30 Pac. Rep. 266; Davidson v. Bordeaux, 15 Mont. 245; 38 Pac. Rep. 1075. 179. The law requiring affidavits of performance of annual labor to be filed with the recorder does not estop the claimant from proving performance of such labor by any other competent testimony. Book v. Justice M. Co., 58 Fed. Rep. 106. 180. When a valid location has been shown, performance of annual assessment work need not be shown unless non-performance thereof and relocation be alleged, and the evidence thereof given by the other party. Quigley v. Gillett, 101 Cal. 462; 35 Pac. Rep. 1040; Renshaw v. Switzer, 6 Mont. 464; 13 Pac. Rep. 127; 15 Mor. Min. Rep. 345; Mattingly v. Lewisohn, 8 Mont. 259; 35 Pac. Rep. 111. 10. Location. (See LOCATION, p. 77.) 181. If the record of a location certificate contains some description of the claim by reference to natural objects or permanent monuments, the sufficiency of the descrip tion should be left to the jury. North Noonday M. Co. v. Orient M. Co., Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529; Taylor v. Middleton, 67 Cal. 656; 8 Pac. Rep. 594; 15 Mor. Min. Rep. 284; McGregor v. Donnelly, 67 Cal. 149; 7 Pac. Rep. 422; Russell v. Chumasero, 4 Mont. 309; 1 Pac. Rep. 713; 15 Mor. Min. Rep. 508; Garfield M. & M. Co. v. Hammer, 6 Mont. 53; 8 Pac. Rep. 153; 130 U. S. 964; Upton v. Larkin, 7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. Rep. 404; S. C., 5 Mont. 600; 6 Pac. Rep. 66; Flavin v. Mattingly, 8 Mont. 242; 19 Pac. Rep. 384; O'Donnell v. Glenn, 8 Mont. 248; 19 Pac. Rep. 302; Gamer v. Glenn, 8 Mont. 371; 20 Pac. Rep. 654; Metcalf v. Prescott, 10 Mont. 283; 25 Pac. Rep. 1037; Dillon v. Bayliss, 11 Mont. 171; 27 Pac. Rep. 725; Brady v. Husby, 21 Nev. 453; 33 Pac. Rep. 801; Seider v. La Fave, 4 New Mex. 369; 20 Pac. Rep. 789; Seider v. Maxfield, 4 New Mex. 374; 20 Pac. Rep. 794. (The last two cases discuss this point and overrule Baxter Mtn. G. M. Co. v. Patterson, 3 New Mex. 179; 3 Pac. Rep. 741; 3 West Coast Rep. 77.) | | 182. It is not for the court to say, by mere inspection of the record of the location notice, what are, or what are not, natural objects or permanent monuments within the meaning of the law. That is a matter of proof. A reference to adjoining claims may be shown to sufficiently fix the locus of the claim located. Russell v. Chumasero, 4 Mont. 309; 1 Pac. Rep. 713; 15 Mor. Min. Rep. 508. 183. The statement that a mining claim is "situated about fifteen hundred feet N. W. by N. of the Mountain Pride lode," in a location record, is, in the absence of a showing to the contrary, a sufficient description of the locus of the claim. Gleeson v. Martin White M. Co., 13 Nev. 442; 9 Mor. Min. Rep. 429. 184. Reference in the record of location certificate to an adjoining mining claim as "the Gambetta lode claim on the east" is such a reference to a permanent monument as to render the record admissible in evidence; the sufficiency of the description, given also by metes and bounds, being a question for the jury. Upton v. Larkin, 7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. Rep. 404; S. C., 5 Mont. 600; 6 Pac. Rep. 66. 185. A location record which describes the claim as bounded by four other claims and marked by monuments at the corners is prima facie sufficient in the matter of description. Southern Cross G. & S. M. Co. v. Europa M. Co., 15 Nev. 383; 9 Mor. Min. Rep. 513. 186. A location notice describing the claim as being 1500 feet by 600 feet from the discovery stake, and "about 1500 feet south of Vaughn's Little Jennie mine," was held sufficient in the matter of description of the claim. Garfield M. & M. Co. v. Hammer, 6 Mont. 53; 8 Pac. Rep. 153. See, also, 130 U. S. 291. 187. A record of a location notice which on its face is so indefinite in the matter of description as to render it impossible to identify the claim therefrom, is inadmissible in evidence. Faxon v. Barnard, 2 McCrary, 44; 4 Fed. Rep. 702; 1 Colo. Law Rep. 147; 9 Mor. Min. Rep. 515; Gilpin County M. Co. v. Drake, 8 Colo. 586; 9 Pac. Rep. 787; Drummond v. Long, 9 Colo. 538; 13 Pac. Rep. 543; 15 Mor. Min. Rep. 510. 188. A statement in the record of location that the claim "is situated on the north side |