THE GOLDEN TERRA MINING Co. v. MAHLER ET AL.

(4 Pacific Coast Law Journal, 405. District Court, Dakota, 1879.)

1 Veins can only be discovered on public lands. If two locations of mining claims are made by the same party which interfere with each other, the second location includes only so much ground as is exclusive of the first, and if the discovery of the second is within the boundaries of the first location, then such second location is invalid, for it is a condition precedent to the location of a mining claim, that a discovery of a vein, bearing valuable minerals, shall first be made within the limits of such location, independent of any other subsisting and valid location. It is upon the public mining lands that the vein must first be discovered. 2 Discovery after location made. But if such party afterward discovers a vein upon that portion of the second location which is exclusive of the first, the staking, recording and improving will inure to his benefit, and the validity of the location will date from the time of such discovery. The order of the acts to be performed is non-essential, provided no intervening rights of others have accrued.

Pay ore not essential to discovery. A vein is discovered when there is disclosed a well-defined body of rock in place, carrying gold, which body afterward proves to be continuous, and it is not essential that it should carry pay ore.

3 Estoppel-Abandonment.

A applied to B to know if there was any mining ground in the vicinity which was vacant, and upon which he would be likely to find ore. B pointed out certain ground, stating that it was vacant and that A could locate and appropriate it to his own use. A thereupon located and worked the ground until it became valuable, when C, to whom B had afterward granted, claimed the premises under a location which B had previously made but concealed from A. Held, that every element essential to constitute an equitable estoppel sufficient to operate as a transfer of the title from C, if he possessed it, is here present; but that the case is more in the nature of an abandonment of the property by B.

A. M. HILLHOUSE, CORSON & THOMAS, CLAGETT & DIXON, ATWOOD & ROMANS, for plaintiff.

MCLAUGHLIN & STEELE and HARRY I. THORNTON, for de

fendants.

By the Court, MOODY, J.

In addition to the formal findings of fact and conclusions

1 Armstrong v. Mower, 6 Colo. 393, 581.

2 Jupiter Co. v. Bodie Co. 4 M. R. 411. North Noonday Co. v. Orient Co. 6 Saw. 299; Post LOCATION; Zollars v. Evans, 4 M. R. 407.

3 Patterson v. Hitchcock, 3 Colo. 533; Post Estoppel.

of law filed in this case, I have deemed it not unadvisable to present my views of some of the more important questions, both of fact and law, involved, somewhat more at length than is necessary or appropriate in such formal findings. The absorbing character of my official duties since the trial has pre. cluded an earlier determination of this case. Counsel are aware that until the fire in Deadwood, which occurred on the 26th of September, I was daily, constantly, engaged in the trial of causes in this and in the United States Court at Rapid, many of them of importance, requiring my whole attention, and that since the fire the time that I could devote to any one case has been very limited. I desired that my decision should at least be the result of mature consideration, both because of the importance of the particular case, and of the novelty of some of the questions involved.

The action was tried in July at the February additional term of this court, and consumed nearly four weeks, the testimony taken covering more than five thousand pages. I had the benefit of the learning and ability, not only of the experienced local counsel engaged, but also of able and distinguished. gentlemen from the States of California and Nevada, whose large and varied experience in mining litigation rendered them capable of affording me great assistance.

This action is brought by the Golden Terra Mining Company, a corporation organized under the laws of California, transacting business and holding property in this Territory, against the defendants, Alfred J. C. Mahler and others, to recover about two hundred by one hundred and fifty feet of what is known as the Golden Terra Extension mining claim, the plaintiff claiming by virtue of its ownership of what is known as the Ophir mining claim, which overlaps and includes a part of the Golden Terra Extension. The suit is in the nature of an action to quiet the title, and for an injunction. The defendants are engaged in working the ore at the upper level, and the plaintiff is engaged in working the ore from the same vein or ledge at a lower level. The answer of the defendants, besides being a specific denial of the allegations. in the complaint, also contains affirmative allegations and a prayer for affirmative relief.

It is unnecessary to state the issues in this decision, as the

facts recited will be sufficient to illustrate the questions I am required to pass upon.

The first question I propose to consider arises upon the following facts, which are substantially undisputed: On the 21st day of February, 1876, Fred Manuel, C. X. Harris and Alex. Engh, citizens of the United States, and otherwise qualified thereunto, on Bobtail Gulch, in what afterward became the Whitewood Quartz Mining District, in Lawrence county, discovered a lode or vein of gold-bearing quartz rock in place, and proceeded to locate the same under the mineral land laws of the United States.

They located, claimed and staked a parcel of land embracing the discovery, seven hundred and fifty feet north-westerly, seven hundred and fifty feet south-easterly, and one hundred and fifty feet each side from the point of discovery—and named their claim the Golden Terra Lode. The locators in all respects conformed to, and complied with, the laws of the United States, of the Territory and the local rules and regulations governing the possessory rights to such mining claims, and they and their grantees have at all times since been in the actual, peaceable possession of said Golden Terra mining claim, claiming it under and by virtue of such original location, and at no time has there been any abandonment of such location, actual or intended, or of any portion thereof (save a few feet on the southerly end when, upon a survey, it was found they had more than fifteen hundred feet in length included within the boundary stakes); but all the time from the first location to the commencement of this action, the said Golden Terra mining claim has been a valid and subsisting location, so far as it could be made such, under the laws of Congress.

Subsequent to the 21st day of February, 1876, and prior to the 7th day of June, 1876, the said C. X. Harris sold and transferred to Moses Manuel and H. C. Harney all his right and interest in the said Golden Terra mining claim, and they, Fred. Manuel, Moses Manuel, II. C. Harney and Alex. Engh, became and were the owners of said claim, and in the actual possession thereof, claiming the same for their own.

On the 7th day of June, 1876, while they were in the possession, and claiming the Golden Terra mining claim, Harney,

Engh and the Manuels made what, at that time, they supposed was a discovery of another vein or lode of gold-bearing quartz rock in place, about three hundred and fifty feet southerly from the first discovery, and within the limits of what was then, and has ever since been claimed by them and their successors in interest as the Golden Terra mining claim. Subsequent developments have determined beyond doubt, that such supposed new discovery was upon the same vein and body of ore as the first, and upon which the Terra location had been predicated. Upon the making of such supposed new discovery, without abandoning or intending to abandon any portion of the Golden Terra location, the parties put up a discovery notice, claiming seven hundred and fifty feet north-westerly, seven hundred and fifty feet south-easterly and one hundred and fifty feet on each side from the point of discovery, and otherwise conformed to and complied with the laws of Congress and the local laws, rules and regulations. governing possessory titles to such mineral lands.

This second location they named the Ophir. It will be seen by an examination of the plats on file in this case, that the Ophir is nearly all included within the exterior boundaries of the Golden Terra claim, leaving outside of such boundaries a strip along the westerly side of the Terra, about sixty feet by eleven hundred and fifty feet, and upon the south and southwest a parcel of about three hundred by three hundred and fifty feet.

It is with regard to a part of this last named parcel extending beyond the southerly end line of the Golden Terra, that this controversy has arisen. No other discovery and no discovery of a vein in the Ophir, outside of the limits of the Golden Terra, was made, and no work was done or improvements made, until after the defendants' rights had accrued.

On the 27th day of January, 1877, the locators and owners of the Golden Terra and Ophir sold and transferred their rights and interests therein to Thomas F. Durbin and John W. Bailey, by deed, describing them in this manner: "A certain gold-bearing lode lying and being between the north fork of Gold-run and Deadwood Creek, and crossing Bobtail Gulch on placer claim number fourteen (14), and known as the Golden Terra Lode, as the same appears on the records in the

office of the Recorder of the Whitewood Quartz Mining District. Also a certain gold-bearing lode running parallel to and about one hundred feet from and south-west of the aforesaid Golden Terra Lode, as appears of record in the Recorder's office aforesaid.

I have given this description at length, because, while it is very indefinite as to the Ophir, I have admitted against defendant's objection and considered evidence tending to show it was the Ophir that was intended to be conveyed in this instrument, and treat it as a conveyance of the Ophir, and because I propose to consider further along the effect of such escription. For the purpose of further enforcing the view I have taken, that at no time was there an abandonment, or intended abandonment, of the Golden Terra location, or any portion of it, or that any portion of it was intended to be included within the Ophir, I add, the above named grantees, Bailey and Durbin, in June and July, 1877, after they had purchased, caused a survey of the Ophir to be made, and in hat survey caused the exterior lines of the Ophir to be run only to the lines of the Golden Terra, thus actually excluding in that survey any part of the Golden Terra.

I have, I think, stated sufficient facts to present the ques tion which meets us at the threshold of this case: Can a legal and valid location be made, predicated upon a discovery of the existence of the same vein already discovered at another place within the limits of a valid and subsisting location, without an abandonment of any portion of such subsisting location? It is urged by the defendant's counsel, that inasmuch as the Ophir discovery was within the limits of the Golden Terra mining claim and upon the same vein, and the attempted location was made by the then owners of the Golden Terra, without abandonment of any portion of the first location at that time, or since, that such alleged discovery was not a discovery of a vein at all, but a mere development of one already discovered, and that a location predicated thereon gave them no additional rights; a further argument urged being, that to hold such a location valid would, in effect, be nullifying the act of Congress limiting mining claims to fifteen hundred feet along the vein or lode, and to such width not less than twenty-five feet, nor more than three hundred feet on either