417. Lands in Florida claimed prior to laws because discovered, after the town-site April 1, 1890, under the homestead or pre-entry, to be valuable for mineral. Thomas J. emption laws, and not known to be valuable Laney, 9 L. D. 83. for phosphate deposits at date of such claim, 420. A town-site entry and patent are "inmay be entered under such laws, notwith-operative as to all lands known at the time standing a subsequent discovery of such de- to be valuable for their minerals, or discovposits. (Act of Oct. 1, 1890, 26 Stat. 663.) ered to be such before their occupation or Gary v. Todd, 18 L. D. 58. improvement for residence or business under the town-site title." Deffeback v. Hawke, 115 U. S. 392. 418. "Thus read they must be held, we think, merely to prohibit the passage of title, under the provisions of the town-site laws, to mines of gold, silver, cinnabar or copper, which are known to exist, on the issue of the townsite patent, and to mining claims and mining possessions, in respect to which such proceed ings have been taken under the law or the customs of miners as to render them valid, creating a property right in the holder, and not to prohibit the acquisition for all time of mines which then lay buried unknown in the depths of the earth. The exceptions of mineral lands from pre-emption and settlement and from grants to States for universities and schools, for the construction of public buildings and in aid of railroads and other works of internal improvement, are not held to exclude all lands in which minerals may be found, but only those where the mineral is in sufficient quantity to add to their richness and to justify expenditure for its extraction, and known to be so at the date of the grant. There are vast tracts of country in the mining States which contain precious metals in small quantities, but not to a sufficient extent to justify the expense of their exploitation. It is not to such lands that the term 'mineral' in the sense of this statute is applicable." Davis' Adm'r v. Weibbold, 139 U. S. 507. (Citing and approving Pacific Coast M. & M. Co. v. Spargo, 8 Sawy. 645; 16 Fed. Rep. 348; Cowell v. Lammers, 10 Sawy. 246; 21 Fed. Rep. 200; 3 West Coast Rep. 504; United States v. Reed, 12 Sawy. 99; 28 Fed. Rep. 486; Merrill v. Dixon, 15 Nev. 401; Alford v. Barnum, 45 Cal. 482; 10 Mor. Min. Rep. 422; Dughi v. Harkins, 2 L. D. 721; Cleghorn v. Bird, 4 L. D. 478; Samuel W. Spong, 5 L. D. 193; Commissioners of Kings County v. Alexander, 5 L. D. 126; Magalia G. M. Co. v. Ferguson, 6 L. D. 218; Nicholas Abercrombie, 6 L. D. 393; John Downs, 7 L. D. 71; Cutting v. Reininghaus. 7 L. D. 265; Creswell M. Co. v. Johnson, 8 L. D. 440; Thomas J. Laney, 9 L. D. 83). 419. Land covered by a town-site patent may not be entered under the mineral land 421. Where a mining claim is located upon an Indian reservation and the locator is in possession at the date the reservation is thrown open, "with the requisite discovery, with the surface boundaries sufficiently marked, with the notice of location posted, and with a disclosed vein of ore, he could, by adopting what had been done, causing a proper record to be made, and performing the amount of labor or making the improvement necessary to hold the claim, date his rights from that day; and that such location and labor and improvements would give him the right of possession." Noonan v. Caledonia M. Co., 121 U. S. 393. (Affirming 3 Dak. 189; 14 N. W. Rep. 426.) 422. The discovery of a mine within the limits of a private land grant did not destroy the title under the grant. Fremont v. United States, 17 How. 442. 423. The rights of an agricultural claimant will not be affected by the discovery of mineral after final agricultural entry. Arthur v. Earle, 21 L. D. 92. 424. To be reserved from entry under the agricultural land laws and from a patent issued under said laws, land must have been known at the time of sale (entry) to be val uable for its minerals. A discovery of its mineral character subsequent to that date cannot affect the title. Deffeback v. Hawke, 115 U. S. 392. 425. If a lode is not known at date of agricultural entry, but is subsequently discovered and located, the claimant may not follow it on its dip under the agricultural claim. Amador-Medean G. M. Co. v. South Spring Hill G. M. Co., 13 Sawy. 523; 36 Fed. Rep. 668. 426. "To constitute the exemption contemplated by the pre-emption act under the head of known mines,' there should be upon the land ascertained coal deposits of such an extent and value as to make the land more valuable to be worked as a coal mine, under the conditions existing at the time, than for merely agricultural purposes. A change in the conditions occurring subsequently to the sale, whereby new discoveries are made, or by means whereof it may become profitable to work the veins as mines, cannot affect | the title as it passed at the time of the sale. The question must be determined according to the facts in existence at the time of the sale." Colorado Coal & Iron Co. v. United States, 123 U. S. 307. 427. To be excepted from a pre-emption entry as mineral, land must be known to be such at date of the agricultural entry. A discovery of mineral after pre-emption entry of the land would not defeat the pre-emption entry. Harnish v. Wallace, 13 L. D. 108. 433. Local rules and customs of miners recognized discovery, followed by appropriation, as the foundation of the possessor's title, and development by working as the condition of its retention. Jennison v. Kirk, 98 U. S. 453. (Affirming Titcomb v. Kirk, 51 Cal. 288; 5 Mor. Min. Rep. 10.) 434. The discovery and location of a claim in pursuance of the law is equivalent to a contract of sale and purchase where the purchaser is let into possession and becomes entitled to a deed upon payment of the purchase-money and making a certain expenditure. Renshaw v. Switzer, 6 Mont. 464; 13 Pac. Rep. 127; 15 Mor. Min. Rep. 345. 435. A partnership is not constituted by the agreement of A. to pay B. wages and give him an interest for the discovery of a paying mine. Berry v. Woodburn, 107 Cal. 428. Open and notorious possession for mining is sufficient to charge an applicant for agriculture patent with notice of the min-504; 40 Pac. Rep. 802. eral character of the land, and to bring such land within the description of known mineral deposits. Gold Hill Quartz M. Co. v. Ish, 5 Oreg. 104; 11 Mor. Min. Rep. 635. 429. The value of mineral discovered in a mining claim will not be inquired into by the Land Department, except in a controversy between mineral and agricultural claimants as to the character of the land. Tam v. Story, 21 L. D. 440. 430. The presumption arising upon the location of a mining claim, that the land covered thereby is mineral in character, though returned as agricultural, exists only where such location is legally made and based upon a proper discovery. Rhodes v. Treas, 21 L. D. 502. (4) Title. (See TITLE, p. 201.) 436. If the title to the land on which the discovery is situated fails, the whole location is lost. Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482. 437. New discoveries after the sale, by which the land becomes profitable to work as a mine, cannot affect the title as it passed at the time of the sale. Colorado Coal & Iron Co. v. United States, 123 U. S. 307. (5) Placer. (See PLACER, p. 321.) 438. The discovery, subsequent to application for a placer patent, of veins or lodes within the limits of the placer claim, does not affect the rights of the placer applicant. United States v. Iron Silver M. Co., 128 U. S.. 673. 439. A placer patent conveys to the pat the territorial limits not then known to exist; nothing disclosed after the issue of patent can limit the effect of a patent, or except from its scope any vein or lode within its territorial limits. Sullivan v. Iron S. M. Co., 143 U. S. 431. 431. Discovery and appropriation are recentee full title to all lodes or veins within ognized as the source of title to mining claims, and development by working, as the condition of continued ownership, until issuance of patent therefor. (Entry of the claim and payment for the land.) Erhardt v. Boaro, 2 McCrary, 141; 1 Mor. Min. Rep. 452; 113 U. S. 527; O'Reilly v. Campbell, 116 U. S. 418. (Citing Jennison v. Kirk, 98 U. S. 453; Jackson v. Roby, 109 U. S. 440.) 432. Discovery and appropriation is the source of title of a mining claim under the act of 1866, as well as that of 1872. Jackson v. Roby, 109 U. S. 440. 440. Where a lode claim conflicts with a placer, the lode discovery being outside of the conflict, there is no presumption of a continuation of the lode into the placer ground. (Raunheim, placer claimant, filed application, and gave notice. Dahl, lode claimant, did not adverse. Hence, Dahl is estopped from questioning the validity of the placer | 7 U. S. App. 507; Last Chance M. Co. v. Tyler claim.) Raunheim v. Dahl, 6 Mont. 167; 9 M. Co., 15 U. S. App. 456. Pac. Rep. 892; S. C., 132 U. S. 260. 449. 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 con 441. A lode claim intersected by an excluded placer must be restricted upon entry to that one of its non-contiguous parts on which is situate the discovery. Silver Queensidered valuable for mining purposes was Lode, 16 L. D. 186. 442. There must be a discovery on every twenty acres, or fraction thereof, of a placer claim. Com'r to Los Angeles Office, March 1 and July 29, 1890; Ferrell v. Hoge, 18 L. D. 81. (Affirmed on review, 19 L. D. 568.) Contra: Not required, the claim being an entirety. McDonald v. Montana Wood Co., 35 Pac. Rep. 668. 443. Under Ferrell v. Hoge, 18 L. D. 81, a claimant will be allowed an opportunity to make a showing of discovery on every twenty acres of a placer claim. Ferrell v. Hoge (on review), 19 L. D. 568. 444. A location of a placer claim must be based on a discovery of a valuable mineral deposit. Reins v. Murray, 22 L. D. 409. Contra, Gregory v. Pershbaker, 73 Cal. 109; 14 Pac. Rep. 401; 15 Mor. Min. Rep. 602. (6) Patent. (See PATENT, p. 261.) 445. A patent cannot be issued based upon a discovery made after application thereof. Upton v. Larkin, 7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. Rep. 404; S. C., 5 Mont. 600; 6 Pac. Rep. 66. 446. Patent will not issue for a lode mining claim where the land on which is situate the discovery and improvements is excluded from the entry, unless a discovery and the required expenditure are shown to have been made on entered ground. Antediluvian Lode & Mill Site, 8 L. D. 602; Thomas J. Laney, 9 L. D. 83; E. W. Williams, 20 L. D. 458. 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. 450. The patenting of the discovery shaft of the first locator, to a subsequent locator of a conflicting claim, leaves the first claim subject to relocation. Miller v. Girard, 33 Pac. Rep. 69. 451. The decision of the Department, In re Juniata Lode, 13 L. D. 715 (wherein the Department consented to accept a reconveyance of the part of a patented placer claim covered by a lode location, for the purpose of issuing patent for the lode claim without suit to vacate the placer patent), is not applicable where it is desired to allow a lode patentee to reconvey a tract for the purpose of giving an unpatented lode claim its discovery. Winter Lode, 22 L. D. 362. (7) Expenditure. (See EXPENDITURE, p. 224.) 452. Miners' rules required possession of a mining claim to be predicated on a discovery and maintained by development work. Con. Republican Mtn. M. Co. v. Lebanon M. Co., 9 Colo. 343; 12 Pac. Rep. 212; 15 Mor. Min. Rep. 490. (Following Jennison v. Kirk, 98 U. S. 453.) 453. Where the discovery and improvements are excluded from the entry of a min 447. A mining patent is conclusive proofing claim, the entry will be canceled, unless of discovery and location according to law. Such patent takes effect by relation as of date of location. Talbott v. King, 6 Mont. 131. 448. The issuance of patent evidences discovery, proper location, marking, posting of notice, recording thereof, requisite expenditure, notice of application, and that all other steps to acquire patent, required by law, were regularly taken. N. P. R. R. Co. v. Cannon, it is shown that mineral has been discovered and the requisite expenditure made upon claimed ground. A reconveyance by another lode claimant of the patented excluded ground will not be accepted, in such a case, as re-investing title to the same in the government for the purpose of patenting it with the claim last entered. Winter Lode, 22 L. D. 362. 454. The first discoverer of a mine can derive no benefit from his discovery unless he follows it up by work for the development of his claim. Jackson v. Roby, 109 U. S. 440. 455. The discovery and development work must be on claimed ground. Armstrong v. Lower, 6 Colo. 393; 15 Mor. Min. Rep. 631. (Affirmed in 6 Colo. 581; 15 Mor. Min. Rep. 458.) 456. A hearing should be ordered upon the protest of one alleging non-compliance by an entryman with the law relating to discovery, expenditure and notice of application for patent. Weinstein v. Granite Mtn. M. Co., 14 L. D. 68. 457. Discovery and expenditures must be shown within the limits of a new (amended) survey. Thomas J. Laney, 9 L. D. 83. 458. Where that portion of the claim entered on which are situate the discovery and improvements is excluded from the entry, it is incumbent on the claimant to show a discovery and the required expenditure on claimed ground. (Following Antediluvian Lode and Mill Site, 8 L. D. 602.) Independence Lode, 9 L. D. 571; Lone Dane Lode, 10 L. D. 53. (8) Dip and Apex. (See VEINS, p. 11.) 459. A vein need not necessarily crop out on the surface in order that a location may be properly laid upon it; but where the vein does crop out along the surface or is slightly covered by foreign matter, so that the course of the apex can be readily ascertained, this course should be substantially followed in laying claims and locations upon it. Flagstaff S. M. Co. v. Tarbett, 98 U. S. 463; 9 Mor. Min. Rep. 607. 460. A location based on a discovery on the dip of a lode is void. Upton v. Larkin, 7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. Rep. 404; S. C., 5 Mont. 600; 6 Pac. Rep. 66. 461. If the apex of a vein has been duly located, one who sinks a discovery shaft on the dip can acquire no rights as against the locator of the apex. Golden Terra M. Co. v. Smith (Mahler), 2 Dak. 377; 11 N. W. Rep. 97; 4 Pac. Coast Law Jour. 405; 4 Mor. Min. Rep. 390. 462. The top or apex of a vein must be found within the limits of a claim located to form the basis of a valid location; but such apex is not necessarily a point, but may be a line of great length; and if a portion of it is discovered within the claim, that is sufficient upon which to place a valid location. Larkin v. Upton, 144 U. S. 19. (Affirming 5 Mont. 449; 6 Pac. Rep. 66; 7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. Rep. 404.) 463. The burden of proving his right is upon a miner who follows a lode on its dip within a claim of another. Cheesman v. Shreeve, 40 Fed. Rep. 787. 464. The unauthorized underground working of a lode will not prevent its location by the discoverer of the apex, as "the possession of a vein recognized by the mining laws and to which protection is given is by one who holds the surface where the vein makes its apex." Eilers v. Boatman, 3 Utah, 159; 1 West Coast Rep. 632; 2 Pac. Rep. 66; 15 Mor. Min. Rep. 462. On appeal, 111 U. S. 356; 15 Mor. Min. Rep. 462. (9) Shaft. 465. A discovery, although not in the discovery shaft, is sufficient as a basis for a location. Evidence showing such discovery is properly admitted. O'Donnell v. Glenn, 8 Mont. 248; 19 Pac. Rep. 302. 466. A location notice need not show the position of the discovery shaft. Quimby v. Boyd, 8 Colo. 194; 6 Pac. Rep. 462. 467. A discovery elsewhere than in the discovery shaft after location will not avail to hold the claim, as the location rests on what may be found in the discovery shaft. Van Zandt v. Argentine M. Co., 2 McCrary, 159; 4 Mor. Min. Rep. 441. 468. The first shaft sunk upon a claim is not necessarily the discovery shaft. Terrible M. Co. v. Argentine M. Co., 5 McCrary, 639. 469. In ejectment for a mining claim, where it appears that the discovery shafts of both parties are identical, evidence that the discoveries were made on lands patented prior to the dates of discovery of either party should be admitted, and if the fact is found neither party can recover. Moyle v. Bullene, 44 Pac. Rep. 69 (Colorado). 470. "It is the discovery of mineral that entitles the discoverer to a claim; it is equally meritorious whether discovered in the discovery shaft or in any other part of the surface ground of his claim, as the National statute is silent as to where it shall be found." Wight v. Tabor, 2 L. D. 738; 2 L. D. 749; Har rington v. Chambers, 3 Utah, 94; 1 Pac. Rep, | Meagher, 104 U. S. 297; 1 Mor. Min. Rep. 510; 362. See 111 U. S. 350. S. C., 3 Mont. 65. 479. The sale of that portion of the claim 471. In ejectment the plaintiff must prove a legal location based on a discovery of min-containing the discovery is not per se an eral-bearing rock in place in a discovery shaft abandonment of the remainder of the claim. such as is required by State statute. Van Little Pittsburgh Cons. M. Co. v. Annie M. Zandt v. Argentine M. Co., 2 McCrary, 159; 4 Co., 5 McCrary, 298. Mor. Min. Rep. 441. 472. The Colorado statutes require a tenfoot discovery shaft, or an adit of that length. Held, that the whole length of an adit, both covered and uncovered, may be considered. Electro Magnetic M. & Dev't Co. v. Van Auken, 11 Pac. Rep. 80. 473. A relocator of an abandoned claim, under the Colorado statutes, must either sink the discovery shaft ten feet deeper or make a new opening of the required depth or length. Little Gunnell M. Co. v. Kimber, 1 Mor. Min. Rep. 536. 474. The Colorado statute requiring a tenfoot discovery shaft, impliedly upheld by the supreme court. Erhardt v. Boaro, 113 U. S. 527; 4 Mor. Min. Rep. 432. 475. A relinquishment, after entry, of a discovery shaft of a conflicting claim, for the purpose of validating an otherwise invalid location, will not be allowed. Independence Lode, 9 L. D. 571. 476. The patenting of the discovery shaft of first locator to a subsequent locator of a conflicting claim leaves the first claim subject to relocation. Miller v. Girard, 33 Pac. Rep. 69. 477. 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. (10) Abandonment. (See ABANDONMENT, p. 128.) 478. A relocator cannot avail himself of mineral in the public lands which another has discovered, until the discoverer has, in law, abandoned his claim, and left the property open for another to take up. Belk v. (11) Posting. (See POSTING, p. 172.) 480. "A mere posting of notice on a ridge of rocks cropping out of the earth, or on other ground, that the poster has located thereon a mining claim, without any discovery or knowledge on his part of the existence of metal there, or in its immediate vicinity, would be justly treated as a mere speculative proceeding, and would not itself initiate any right. There must be something beyond a mere guess on the part of the miner to authorize him to make a location which will exclude others from the ground, such as the discovery of the presence of the precious metals in it, or in such proximity to it as to justify a reasonable belief in their existence. Erhardt v. Boaro, 113 U. S. 527. 481. A location notice need not be posted at the precise point of discovery, but should be near it. Doe v. Waterloo M. Co., 70 Fed. Rep. 455. 482. The Montana statute requiring the location notice to be posted at the discovery point is satisfied if the notice is posted at a shaft in which there is no mineral, provided mineral has been disclosed elsewhere on the claim. O'Donnell v. Glenn, 8 Mont. 248; 19 Pac. Rep. 302. 483. Mere posting of a location notice, without a discovery, confers no right. Eilers v. Boatman, 111 U. S. 356; 15 Mor. Min. Rep. 471; S. C., 3 Utah, 159; 2 Pac. Rep. 66; 15 Mor. Min. Rep. 462; 1 West Coast Rep. 632. 484. A. makes a discovery and posts notice. B. then does the same. Within the time allowed each makes a location, defective in that sufficient description of the claim is not given in the certificate. B. makes and files a correct amended notice, and A. subsequently does the same. Held, that A. has the better right. Craig v. Thompson, 10 Colo. 517; 16 Pac. Rep. 24. 485. The location notice must be posted at the discovery point under the Colorado |