33 Colo. 346 | Colo. | 1905
delivered the opinion of the court.
According to the verdict the annual labor for 1899 on the Quaking Asp had been performed. It was, therefore, a valid, subsisting location, when title to the premises in controversy was sought to be initiated by the claimants of the Dog Nest. A location based upon a discovery within the limits of an existing and valid location is void. — Lebanon M. Co. v. Con. Rep. M. Co., 6 Colo. 371; Kirk v. Meldrum, 28 Colo. 453; Michael v. Mills, 22 Colo. 439; Belk v. Meacher, 104 U. S. 279; Moyle v. Bullene, 7 Colo. App. 308; Reynolds v. Pascoe, 66 Pac. (Utah) 1064; Lindley on Mines (2d ed.), § 337; Toulumne Cons. M. Co. v. Maier, 134 Cal. 583; Little Pittsburgh Cons. M. Co. v. Amie M. Co., 17 Fed. 57.
The statute in question provides, in substance, that if the locator of a mining claim shall apprehend that his original certificate of location was defective or erroneous,' or that the requirements of the law in making a location had not been complied with, or in case he desires to change the surface boundaries of his claim, or take in any part of an overlapping claim, which has been abandoned, that he may file an additional certificate. Its evident purpose was to permit the locator to cure errors and defects, or supply omissions, so that a location which was merely defective might be rendered perfect, and also take in territory embraced in abandoned overlapping claims, if so desired. It cannot avail, however, except it appears that there has been an original location which is valid, though imperfect. — Strepey v. Stark, 7 Colo. 614. In other words, there must be some rights in the locator filing such certificate to
The original location of the Dog Nest was a nullity. Not an act had been performed by the claimants of that location which gave them the slightest right to the ground in controversy. There were no errors or defects to cure, or omissions to supply, in order to perfect it; no.rights in the premises to which the amended location certificate could attach or to which it could relate. The case is entirely different from Johnson v. Young, 18 Colo. 625. In that case the original location was valid, because the discovery upon which it was based was upon ground subject to appropriation, and it was held that the filing of an amended certificate perfected the title to the parts of the claim overlapping a prior location abandoned before the amended certificate was filed.
The judgment of the district court is affirmed.
Affirmed.
Justices Goddard and Bailey concur.
