Sec. 654. Mining claims-Location and relocation. A locator's title is not affected by the fact that a portion of the land is within the limits of a town, it appearing that the existence of a mineral bearing vein at the place the discoveries were made was known long previous to the application for, or receipt of, the title by the town. Moyle v. Bullene, Colo. App. (44 Pac. Rep. 69). Applying U. S. Rev. Stat., § 2332, which gives a right of patent to one who holds and works a mining claim for the prescriptive period of the state where located, "in the absence of any adverse claim," it is held that such a holding and working is equiva lent to a location under the acts of congress. Altoona Quicksilver M. Co. v. Integral Quicksilver Min. Co., 114 Cal. 100 (45 Pac. Rep. 1047). The amended location certificate provided for by Colo. Gen. Stat. 1883, § 2409, presupposes and is based upon the original; hence, where several interested in a mining claim convey their interests in trust to one of their number for the purpose of having him procure the patent, his acquisition of additional territory by an amended certificate inures to the benefit of all who were interested in the original location. Hallack v. Traber, 23 Colo. 14 (46 Pac. Rep. 110). Where a mine is not in active operation the labor necessary to hold it is not performed by placing a watchman on it merely to warn prospectors and thus prevent a location, but the rule is otherwise where the services of a watchman are necessary to preserve tunnels, buildings, or any structures erected to work the mine, and which would be necessary in case work were resumed. Altoona Quicksilver M. Co. v. Integral Quicksilver Min. Co., 114 Cal. 100 (45 Pac. Rep. 1047). Where the owner of a placer mining claim commences an action for its recovery within the statutory time, he will not be held to have forfeited his claim so as to subject it to relocation, by failure to perform the required annual assessment work during the time the claim was held adversely by another. Trevaskis v. Peard, 111 Cal. 599 (44 Pac. Rep. 246).

Sec. 655. Mining claims-By whom and where location may be made. Construing and applying U. S. Rev. Stat., § 2320, which provides that "no location of a mining

claim shall be made until the discovery of a vein or lode within the limits of the vein located," it is held that a discovery and location may be made by any person qualified by reason of citizenship in the United States, irrespective of his vocation; that the discovery is valid if the rock discovered is in place, and carries enough precious metal in it to justify the locator in spending his time and money in prospecting and developing the ground located; and the discovery of a crevice or seam filled with mineral deposit, by means of which the prospector anticipates being led to an ore body or deposit of commercial value, is a sufficient discovery of a vein to support the location of a mining claim. McShane v. Kenkle, 18 Mont. 208 (44 Pac. Rep. 979; 56 Am. St. Rep. 579; 33 L. R. A. 851). See opinion for valuable discussion of these points. The discovery of a vein or lode of mineral-bearing rock in place must be within the limits of the claim located and upon unappro priated territory. Michael v. Mills, 22 Colo. 439 (45 Pac. Rep. 429).

Sec. 656. Mining claims-Marking location-Survey. Construing and applying U. S. Rev. Stat., § 2324, which requires that "the location must be distinctly marked on the ground, so that its boundaries can be readily traced," the placing of a stake at each corner and at the center of each end of a mining claim, with one or more notices of a location, was held sufficient identification. Howeth v. Sullenger, 113 Cal. 547 (45 Pac. Rep. 841). In another case construing this statute it is held that its provisions must be complied with; that the record must contain such a description of the claim by reference to some natural object or permanent monument as will identify the claim; that such reference to a natural object or permanent monument must be such as to furnish a reasonable certainty that the locus of the claim has not been, and could not well be, changed; and that permanent monuments may be erected for the purpose of tying the claim to them, but then courses and distances from them to discovery stake or corner stakes, or some other object on the ground, must be stated with reasonable accuracy. Brown v. Levan, Idaho, (46 Pac. Rep. 661). It is not neceseary that the lines and monuments of the official survey of a mining

claim corresponds to, or be identical with, those of the original location, the location being void only so far as it exceeds the statutory requirements. Howeth v. Sullenger, 113 Cal. 547 (45 Pac. Rep. 841).

Sec. 657. Mining claims-Conflicting locationsAdversary proceedings. In the case of Girard v. Carson, 22 Colo. 345 (44 Pac. Rep. 508), the supreme court of Colorado say: "In order that the locator of a mining claim may obtain any right to mining property by virtue of his location, the same must be made upon the unappropriated lands of the United States; and where application is made for a patent to another, which includes within its exterior limits the original discovery shaft of a prior location, it is necessary for the owners of such prior location to institute adverse proceedings within the time provided by law, if they desire to hold any portion of the property by reason of their original location. Where such adversary proceedings are commenced and determined adversely to the claimant, he thereby loses all right, not only to the territory actually in conflict, but all right based upon such loca tion, and a party failing to institute adverse proceedings within the time prescribed by statute stands in the same, and no better, position than one who has instituted such proceedings and suffered defeat. It matters not that the party in fact has the senior location. Upon failing to institute adverse proceedings, it will be conclusively presumed that his rights are inferior and subject to the party obtaining a patent. As the statute only permits mineral locations to be made upon the unappropriated public domain of the United States, it is necessary for the claimant, in order to show a valid location, to establish that such location was in fact made upon vacant and unappropriated territory; so likewise the defendants, for the purpose of showing that plaintiffs' claim was not located upon lands subject to location, may prove a better right in a third party for the purpose of defeating plaintiffs' location. This is not in conflict with the rule which requires each party in an adverse proceeding to rely upon the strength of his own title, rather than upon the weakness of his adversary's, for the reason that, in order to establish any title under the mining laws, each party must show a location upon unappropriated

territory. This is now so well settled that it is unnecessary to do more than state the conclusion. Armstrong v. Lower, 6 Colo. 393; Gwillim v. Donnellan, 115 U. S. 45 (5 Sup. Ct. Rep. 1110)." An ordinary action in a state court to quiet title to mining lands is not an action under U. S. Rev. Stat., § 2326, requiring one filing an adverse claim to mining lands during the publication of notice of application for patent to them, to commence judicial proceedings to determine the right to the lands. Altoona Quicksilver M. Co. v. Integral Quicksilver Min. Co., 114 Cal. 100 (45 Pac. Rep. 1047).

Sec. 658. Mining lands-Miscellaneous notes. Where the original certificate of a mining claim is subject to amendment, a certificate amendatory thereof will relate back to the date of original certificate, but if the original certificate is void a subsequent certificate amendatory thereof does not relate back. Moyle v. Bullene, Colo. App. (44 Pac. Rep.

69). Where, in an action to determine the right to proceed in the United States land office for patent on certain mineral land, the plaintiff has offered in evidence the receiver's receipt for entry thereon, which Colo. Code, Civ. Proc., § 542 makes prima facie evidence of title to land, it is error to exclude from evidence decisions of the land department cancelling the receipt for fraud, made on a protest against issuance of patent to plaintiff. Murray v. Polglase, 17 Mont. 455 (43 Pac. Rep. 505). Where it is shown that the discovery shafts of both parties to an action of ejectment for a mining claim are identical, it is proper to admit evidence of a patent of the land prior to the discovery of either party. Moyle v. Bullene, Colo. App. (44 Pac. Rep. 69). Where, in an action of ejectment for a mining claim the defendant relies on a prior location, the plaintiff may give proof of the defendant's abandonment without a special plea. Trevaskis v. Peard, 111 Cal. 599 (44 Pac. Rep. 246). The removal of his effects from a mining claim by the owner permitting it to be worked for two years by a purchaser under an erroneous judicial sale, intending to reclaim the claim only in case it became profitable, was held to amount to an abandonment. Trevaskis v. Peard, 111 Cal. 599 (44 Pac. Rep. 246). Construing and applying U. S. Rev. Stat., §§ 2339, 2340, which provide among

other things, that, "Whenever

*

of water for mining * purposes have vested and accrued and the same are recognized and acknowledged by the local customs, laws and decisions of the courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches * * * for the purposes herein specified is acknowledged and confirmed," it is held that the right to use a ditch over the land of another for the purpose of hydraulic mining may be established by proof of a custom, and the use of such an easement will not be enjoined where no appreciable damage is shown. Jacob v. Day, 111 Cal. 571 (44 Pac. Rep. 243). One who is employed as a trusted agent to assist in securing patents to mining claims, cannot acquire any title therein in violation of the duties imposed upon him by the terms of the contract. 265 (44 Pac. Rep. 962).

Largey v. Bartlett, 18 Mont.

Sec. 659. Tide lands-Miscellaneous notes. The disclaimer by the state of Washington in its constitution (art. 17, § 2) of all title to tide lands patented by the United States prevents it from asserting title to lands within the calls of such a patent and which are situated below the line of ordinary high tide, but within the meander line. Cogswell v. Forrest, 14 Wash. St. 1 (43 Pac. Rep. 1098). The preference right to purchase tide lands given by Wash. Gen. Stat., § 2172, to the owners of uplands, abutting thereon, is appurtenant to the uplands, and is not extinguished by execution sale thereof till the expiration of the period for redemption. Hays v. Merchants' Bank, 14 Wash. St. 192 (44 Pac. Rep. 137). Wash. Laws, 1895, p. 527, construed and applied-platting ide lands by local boards of appraisers-review by state board of land commissioners. City of Scattle v. Forrest, 14 Wash. St. 423 (44 Pac. Rep. 883). Wash. Laws, 1895, ch. 178; Act Mar. 26, 1890; Act Mar. 26, 1895, construed and applied-sale of tide lands-sufficiency and construction of application. State ex rel. Megler v. Forrest, 13 Wash. St. 268 (43 Pac. Rep. 51).

Sec. 660.

Town site lands-Conclusiveness of decisions of town site trustees. To give a court jurisdiction to