32 Colo. 27 | Colo. | 1903
delivered the opinion of the court.
This controversy concerns a strip of land included within two conflicting lode mining locations, the Maggie A. and the Liverpool. The original location of the Liverpool was first in order of time, and was made on the 23d day of May, 1887. On the 12th day of July, 1897, an attempt, at least, was made to locate the Maggie A., and it is conceded that in all respects it would he a valid location had not the discovery work been done within the exterior boundary lines of another mining claim previously patented. To cure this vital defect, the owners of the Maggie A. thereafter and on the 15th of October, 1897, made a valid discovery of mineral upon the same vein and within one hundred feet of the former discovery, and did the necessary discovery work, within its exterior boundaries. Up to this time there was no conflict of territory between the two locations as thus made, hut on the 4th day of October, 1900, the owners of the Liverpool location relocated the same— knowing at the time of the attempt of the Maggie A. owner to perfect his location by making a good dis
The case was tried to the court without a jury and findings of fact were made and judgment rendered in favor of the owner of the Liverpool lode. The court held as a matter of law that the Maggie A. was not a valid location at the time of the relocation of the Liverpool solely because its locator had failed to comply with what, in the judgment of the court, was a prerequisite to a valid location of a lode mining claim upon the public domain of the United States, viz, that although a valid discovery of mineral was made, and the required discovery work done, within the limits of the Maggie A. location before the relocation of the Liverpool, yet the locator of the former did not post at the point of such second, and only, valid discovery on the surface of the ground a sign or notice, which, it is said, section 3152 Mills’ Ann. Stats, requires shall be done. In every other respect the court considered the Maggie A. a valid location.
“The acts of congress prescribe two, and only two, prerequisites to the vesting in a competent locator of the complete possessory title to a lode mining claim. They are the discovery upon unappropriated public land of the United States within the limits of his claim of a mineral-bearing lode, and the distinct marking of the boundaries of his claim, so that they can readily be traced.” — Erwin v. Perego, 93 Fed. 608.
The acts of congress provide, however, that the acquisition of mineral lands may be subject to local laws and the rules or customs of miners, so far as the same are applicable and not inconsistent with the laws of the United States. Our general assembly
It will be observed from the statement of facts that the sole legal question for decision is whether in this state, as against another and subsequent valid location, a prior lode claim is good in locating which all the federal and state statutory requirements have been complied with except the mere failure to place a discovery notice upon the ground at the point of the only valid discovery made on the claim, when such notice was posted at the point of a former, but invalid, discovery, as recited in the recorded location certificate, and when the boundaries remain the same after, as before, the true discovery.
One object of the requirement that the discoverer shall, before filing his location certificate, post at the point of discovery a notice, is that those wishing to make subsequent locations may thereby be advised of the ground already appropriated, and this serves to hold his ground until his location is perfected within the statutory time. • After the location
In Brewster v. Shoemaker, 28 Colo. 176, it was held that the order of time in which the several acts of location were performed is not of the essence of the statutory requirement, and that it is immaterial that the discovery was made subsequent to the completion of the acts of location; provided, only, all the necessary acts are taken before intervening rights of third parties accrue; and it was there said that if all these necessary steps have been taken before intervening rights accrue, it would be useless and idle ceremony, where the discovery follows all the other acts of location, for the locator again to locate his •claim, or to refile the old location certificate, or to
The judgment of the district court being in conflict with this conclusion, it is reversed, and the cause remanded with instructions to enter judgment in favor of. the appellant with respect to the Maggie A. lode.
Reversed.