This is an action brought under section 2326 of the Revised Statutes of the United States, for the purpose of determining the right to the mining claim described in the appellant’s complaint. There is no statement on appeal, nor statement on motion for a new trial, nor are the instructions
1. The bill of exceptions shows that the defendants below were permitted, over the objections of the plaintiff, to introduce the testimony of a number of witnesses, tending to prove a discovery within their claim, of a vein of mineral-bearing quartz, other than the one which they had selected as the point at which they established their discovery shaft. The appellant contends that a location must be based upon what is found in the discovery shaft, adopted and claimed as such, and nowhere else. The Revised Statutes of the United States (§ 2320) provide that “no location of a mining claim shall be made, until the discovery of the vein or lode, within the limits of the claim located.” There is no provision for a discovery shaft in the statute. Any discovery will meet its requirements, provided it is made before the location, and within its boundaries; nor is there anything in the statutes of the Territory which requires the election of any particular point in the claim as a discovery shaft, to the exclusion of all others. Section 1479 of the General Laws of the Territory provides “that, in order to entitle any person or persons to record in the county recorder’s office of the proper county, any lead, lode, or ledge, there shall first be discovered on said lode, lead, or ledge, a vein or crevice of quartz or ore, with at least one well-defined wall.” This is the same as the act of Congress supra, except that it requires one well-defined wall to be discovered. It is argued by counsel of appellant that “to allow the selection at will of any other shaft besides the nominal discovery shaft, when a location is contested, is to leave the whole matter open to uncertainty and doubt, and cause litigation. To allow it would be to allow a fraud upon the law, for, if a man may locate his discovery, when there is no vein, he may place it at a point between two veins over three hundred feet apart, and thus obtain a claim to two veins, when he would legitimately be entitled to but one.”
2. A more difficult question is presented in regard to the sufficiency of the notice of location. It was objected to by the appellant upon the ground that it is not properly sworn to. The declaratory statement itself contains all that the law requires, but the objection is that the oath or affidavit is insufficient. It is as follows, to wit:—
“ Notice of location. Notice is hereby given that the undersigned, having complied with the requirements of chapter 6 of title 32 of the Revised Statutes of the United States, and the local laws, rules, regulations, and customs of miners, have*253 located 1500 linear feet on the Argonaut Lode, situated in Summit Valley Mining District, Deer Lodge County, Montana Territory, and being more particularly described as follows, to wit: Beginning at a stake at southeast corner, and running west 1500 feet; thence north 600 feet; thence east 1500 feet; thence south 600 feet, to the place of beginning. Said lode is bounded on the south by the Silversmith, and southwest by the Goldsmith, and on the east by what is known as the ‘ Rooney Lode.’ Above lode runs 900 feet easterly and 600 feet westerly from the discovery shaft, and 300 feet on each side. Located December 22, 1880.
“John H. Glenn,
“John Hale,
“John B. Cameron,
“Locators.
“Territory of Montana, \ County of Deer Lodge. Jss‘
“J. B. Cameron, first being duly sworn aócording to law, deposes and says: That we are citizens of the United States, aud are the locators of the foregoing described mining premises; that the description therein contained, as beginning at a stake at the southeast corner, running west 1500 feet; thence north 600 feet; thence east 1500 feet; thence south 600 feet, to place of beginning, — is true, and that the locators, whose names are subscribed thereto, are bona fide residents of Montana Territory.
(Signed) “John B. Cameron.
“Subscribed and sworn to before me this twenty-fourth day of December, 1880.
(Signed) “ A. W. Barrett, Notary Public.
“Filed Nov. 2, 1887.
(Signed) “W. F. Shanley, Clerk.”
The Revised Statutes of the United States (§ 2324) provide that “all records of mining claims hereafter made shall contain the name or names of the locators, the date of the location, and such description of the claim or claims located, by reference to some natural object or permanent monument, as will identify the claim.” The oath given supra shows that it does not contain the date of the location. It is also contended that it does not contain any reference to a natural object or permanent mon
In the consideration of this question it is to be borne in mind that it is not a provision of a constitution, framed by a convention of delegates elected by the people, and afterwards ratified by a popular vote, with which we are dealing, but a legislative act of Congress. It is further to be borne in mind that all the legislative acts of Congress, bearing upon the subject, are to be taken into consideration in our endeavor to reach a correct solution of this question. We further observe that the Supreme Court of the United States says, in the case of Hornbuckle v. Toombs, 18 Wall. 654, in reference to the power of the territorial legislature, “ that, as a general thing, subject to the general scheme of local government chalked out by the Organic Act, and such special provisions as are contained therein, the local legislature has been intrusted with the enactment of the entire system of municipal law, subject, also, however, to the right of Congress to revise, alter, or revoke at its discretion.” And further, said court, in the case of Hoyt v. Russell, 117 U. S. 405, says, in speaking of this very statute, that “it is not necessary to express any opinion, whether after the passage of the Act of 1872, the legislature of the Territory could add any further requirement touching the record of notices of location.” The qualifi
The foregoing is sufficient to show that, within a few months after this Territory was organized, its legislature passed a complete system of laws regulating the manner of locating and recording mining claims. Section 1851, supra, prohibiting the legislature from “interfering with the primary disposal of the soil,” was in the original Organic Act, and was as much the law of this Territory when the Act of 1864, above referred to, was passed as it is now. The location of claims on the mineral lands of the United States seems to have been mainly regulated by local law, and the rules and regulations of miners in the several mining districts, until the passage of the Act of May 8, 1872. These laws were duly reported to Congress, and at least met with its tacit approval, as was the law under consideration. Judge Cooley, in his work on Constitutional Limitations, page 34, says: “ Congress creates territorial governments of different grades, but generally with plenary legislative power, either in
3. We are not in possession of sufficient information to apply the doctrine of communis error facit jus. Let the case be reversed, and remanded for a new trial.
Judgment reversed.