85 F. 904 | U.S. Circuit Court for the District of Utah | 1898
This suit is brought under section 2326 of the Revised Statutes of the United States, in pursuance of an adverse claim filed in the land office by complainants, claiming to be the .owners of the Star mining claim, against the defendant’s application for a patent to the Kate P. mining claim. The Kate E. claim is entirely included in the Star, and, if the latter was ever validly located, it was prior in time to the location of the Kate E. But the original discovery of the Star was afterwards patented by the United States as a part of the Gopher mining claim, and the defendant contends that the issuance of such patent conclusively determines the invalidity of the Star location. The evidence shows that on Sep
The right to a lode claim is initiated by the discovery of a vein, by a competent locator, upon the land of the United States open 1.o exploration and purchase, and by the marking of the claim on the ground, so that its boundaries can be readily traced. Work on the ground located is a condition of the maintenance of the right. Before the discovery of a vein on the unappropriated public land of the United States, there can be no location. But the order in which the acts requisite to a location are done is immaterial, provided they are completed before the rights of other parties intervene. Jupiter Min. Co. v. Bodie Consol. Min. Co., 11 Fed. 666; Mining Co. v. Mahler, 4 Morr. Min. R. 390. By the issuance of a patent to the owners of the Gopher for that claim, it was conclusively determined that complainants, by the attempted location of the Star, on September 5,,
It is true there was no new notice of location, but the mining laws of the United States do not require any notice of location to be either posted on the claim or recorded, and there is no evidence of any local rules or regulations of the miners of the district affecting the question. Book v. Mining Co., 58 Fed. 106-115. The fact that the northeast stake of the Star was placed on the Gopher claim, and that a portion of the latter claim is included within the Star claim as marked on the ground, does not invalidate the location. Doe v. Tyler, 73 Cal. 21, 14 Pac. 375; West Granite Mountain Min. Co. v. Granite Mountain Min. Co., 7 Mont. 356, 17 Pac. 547. At the time of the second discovery, the evidence clearly shows that the locator only intended to claim that portion of the premises not in conflict with the Gopher.
There is nothing in the case of Belk v. Meagher, 104 U. S. 279, supporting the respondent’s contention. In that case, Belk attempted to locate land already held by others under a valid subsisting location, and sought to maintain his right because, after his invalid location, the land became open to relocation, by reason of the failure of the original owners to do the required annual work thereon. But Belk made no relocation, and unsuccessfully urged a title initiating in a trespass to the land trespassed on. In this case no claim is made to the land included in the Gopher.' Ko claim was so made when the location of the Star became an accomplished fact on its second discovery. Considering the location as then made, no act necessary to it can be construed into a trespass, unless it be the adopttion of a staking of the claim which included a portion of the Gopher, and a placing on .that claim of one of the stakes. To hold that such a trespass invalidates a location with respect to land not trespassed on would render titles to unpatented mining claims most insecure. While, the mining laws of the United States require that a location