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ery, they would come under the rules and customs of miners. The only qualification required for a discoverer is that he shall be a citizen of the United States or shall have declared his intentions to become such.

1 Rev. Stat. U. S. § 2320, ante p. 14.

2 North Noonday M. Co. vs. Orient M. Co. (U. S. Cir. Ct. Dist. Cal.) 9 Reporter, 601; Zollers v. Evans, 1 Col. Law Rep. 217. But to perfect the location as originally made the subsequent discovery of mineral must be in the discovery shaft. Vanzandt vs. Argentine M. Co., 1 Col. Law Rep. 524.

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4 Rev. Stat. U. s. § 2319, ante, p. 13; supra, § 20.

22. What must be discovered.-It is not sufficient to constitute such a discovery as will warrant the location of a lode claim, that mineral is found. The mineral must be discovered in a vein or lode. What is meant by the term "lode" we have already seen.2 By in place,” which is always a necessary condition of the mineral in a lode claim, is meant, with reference to the rock in which the mineral is found, or the mineral itself, or both, that they are, when discovered, in the same place or position in which they were originally formed or deposited, as distinguished from loose, broken rock, or "float;" and from the mineral which by decomposition of the rocks, has been released, and is found in the wash, or loose earth and sand.3 So far as the discovery is concerned, it is immaterial whether the rock contains a large or small percentage of mineral, or whether it contain gold, silver, cinnabar, lead, tin, and copper, or only one of the enumerated metals "or other valuable deposits" in appreciable quantities. It has been said that one wall must be discovered. That "before such discovery can be called a discovery, at least one well-defined wall or side of the lode must be found."5

1 Rev. Stat. U. S. § 2320, ante, p. 14; Overman S. M. Co. vs. Corcoran, 15 Nev. 147.

2 Ante, § 15.

3 Iron Silver M. Co. vs. Cheeseman, 1 Col. Law Rep. 461; Vanzandt vs. Argentine M. Co., id. 524.

4 Ibid.

5 Foote vs. National M. Co., 2 Mont. 402.

§ 23. Manner of discovery.—It is of no consequence by what methods, whether with much or little labor that the vein or lode is discovered. All the labor and improvements required by the law, follow the discovery. The vein or lode may be discovered at the surface in outcroppings, immediately below the "wash," or at any conceivable depth below the surface of the underlying rock, and it will be a good discovery upon which to base a valid location.

§ 24. Rights secured by discovery.-From the date of discovery, the claimant has certain rights respecting the lode, which are indefeasible except by the United States. He has a right, within such period, and subject to such regulations as may be fixed by the local law, to locate a claim on the lode; and this right is superior to any location made on a subsequent discovery of the same lode. The maximum length of the location is fixed at 1,500 feet, and the maximum width at 300 feet on each side of the middle of the vein; and the minimum width to which claims may be limited by local regulations is fixed at 25 feet on each side of the middle of the lode. There seems to be no provision for limiting the length of claims by local regulation to less than 1,500 feet. Within the limits prescribed, state and territorial legislatures and district associations may regulate so as to affect the value of the rights secured by discovery; but these local regulations by what authority soever established, cannot deprive the discoverer of the substantial benefits of his discovery, nor can he be deprived of such rights, by the entry of a trespasser, or one who, by force, threats or other unlawful means, prevents him from per

fecting his right by locating the claim according to the local regulations prescribed.3

1 And a discovery stake with notice of the claim is good constructive possession for the time allowed by local law to complete the location work. Erhardt vs. Boaro, 1 Col. Law Rep. 497.

2 Rev. Stat. U. S., § 2320, ante, p. 14.

3 Erhardt vs. Boaro (U.S. Cir. Ct.) 1 Col. Law Rep. 497.

§ 25. Location. Following the discovery, the next step is the location of the claim. Prior to the acts of Congress governing this act of formal appropriation, the requisite things to be done were prescribed entirely by local rules or customs. Most of the details in this respect are still left to the state or territorial legislatures, or to be regulated by district rules.1 But the section of the Revised Statutes cited contains a certain provision which was substantially embodied in an earlier act,2 requiring that the location must be distinctly marked upon the ground so that its boundaries could be readily traced. Saving the provisions as to length, width, and form of claims, this is all there is of the general law now in force requiring formal acts of location. The act of 1866 cited required the locator to mark his claim at the point of discovery by a substantial stake, post, or stone monument, having described thereon the name of the discoverer or discoverers, and the name of the lode or vein, with the date of discovery. Also, that before recording, he should sink a shaft on the claim at least ten feet deep, or deeper if necessary, to find a well-defined crevice, or forfeit all right and title acquired by discovery.3 By" distinctly marked on the ground," it is not to be understood that it is necessary to trace the boundary lines throughout their entire length, on the ground, or to erect fences or other substantial inclosures for that purpose. The accompanying words sufficiently designate the object of such marking, and if the boundaries “can be readily traced,” the

end will be attained and the means will not be closely inquired into. But marking a five-sided claim by posting a notice thereon, and marking three of its corners, was held insufficient to render the location valid. And post

ing a notice on a tree at each end of the claim was also held insufficient.5 It has been decided, however, that a line of stakes running lengthwise through the middle of the claim, distinctly marked and calling for so many feet on each side, was a sufficient compliance with this provision of the statute to determine the position of the side lines. Where a party relies upon a location by himself or grantors, and fails to show possession, he must show a valid location, according to the laws in force or the rules and customs of miners. But possession and use for a long time, with general recognition of the claim as located, have been held to cure defects in the location.8 The right to the claim is primarily in those in whose names it was located, whether by their active co-operation or not, and even where their express consent is not shown.9 It is also held that anyone authorized to locate a claim on the public domain may perform all the acts of appropriation through the agency of others.10 So it was held that a claim might be located by a corporation. Prior to the statute the amount of surface ground was regulated in general by its reasonableness, and if a larger amount in width was taken than was found to be reasonable, possession under the location was limited to the ground actually occupied.12 And where a claim was found to be excessive it was held void for the excess; but setting the stakes a few feet farther apart than allowed by law, did not invalidate the entire claim.13 Where a party was attempting to locate a claim, and was driven off by force, it was held that he had acquired a good possessory title against all persons.14

1 Rev. Stat. U. S., § 2324; ante, p. 15.

2 Act of Congress Feb. 9, 1866, § 2.

8 Ibid. This section of the act was repealed by the act of 1872, which is embodied and set forth in the Revised Statutes. The requirements in the repealed section, not included in the subsequent act, are in most of the mining districts the subject of local legislation. The reader is therefore referred to subsequent pages containing the local regulations upon the subject of location. See post, Ch. xv, Local Statutes.

4 Hess vs. Winder, 30 Cal. 349.

5 Holland vs. Mt. Auburn, &c. Co., 53 Cal. 149.

6 North Noonday M. Co. vs. Orient M. Co., 9 Reporter, 601; Gleeson vs. Martin White, 13 Nev. 443. Posts or monuments at the corners and the center of end lines held sufficient. Southern Cross, &c. Co. vs. Europa M. Co., 15 Nev. 383.

7 Sullivan vs. Heuse, 2 Col. 424; Chapman vs. Toy Long, 4 Sawyer, 28.

8 Kinney vs. Con. Va. M. Co., 4 Sawyer, 382; Harris vs. Equator, &c. Co., 2 Col. Law Rep. 63.

9 Morton vs. Solambo C. & M. Co., 26 Cal. 527; Gore vs. McBrayer, 18 Cal. 583; Van Valkenburg vs. Huff, 1 Nev. 142.

10 Murley vs. Ennis, 2 Col. 300.

11 Whitman M. Co. vs. Baker, 3 Nev. 386.

12 Table M. T. Co. vs. Stranahan, 20 Cal. 198; s. c., 21 Cal. 548. 13 Atkins vs. Hendree, 1 Idaho, 108.

14 Robinson vs. Imperial M. Co., 5 Nev. 14.

§ 26. Survey, length, width, form.—The “survey" here referred to is not that which is required in order to obtain a patent; but merely the measuring off of the claim by metes and bounds and courses and distances. It is not even necessary that it should be done by a surveyor, provided it conforms to the requirement that the boundaries shall be distinctly marked. Prior to May 2, 1872, when the provisions now in force governing the length of claims were enacted,1 they were limited as to length, to 200 feet to the individual, or 3,000 feet to an association, with no definite limits as to width, beyond the provision that the locator should have a "reasonable quantity of surface for the convenient working of the same as fixed by local rules."2 But by the law the length is fixed at 1,500 feet. The lan

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