David Josiah Brewer

“ A tunnel is not a mining claim, although it has sometimes been inaccurately called one. As we have seen, it is only a means of exploration. The owner has a right to run it in the hope of finding a mineral vein. When one is found he is called upon to make a location of the ground containing that vein, and thus creates a mining claim, the protection of which may require adverse proceedings. As the claimant of the tunnel he takes no ground for which he is called upon to pay, and is entitled to no patent. ”

“ If, therefore, the entry and patent do not of themselves necessarily determine the order of the prior proceedings, why may not anyone who claims rights anterior to the entry, and dependent upon that order, show, as a matter of fact, what is was? One not a party to proceedings between the government and the patentee is concluded by the action of the government only so far as that action involves a determination. There is a determination by the fact of entry and patent that there was, prior to the entry, a discovery and a location. ”

“ Undoubtedly, if, in an adverse suit, the time of any particular matter is litigated, the judgment is conclusive; and if the date of discovery stated in the plaintiff's location certificate had been challenged in an appropriate action brought by the defendant, and determined in favor of the plaintiff, there could be now no inquiry. So, when the owner of a lode claim makes application for a patent, and the owner of another seeks to challenge the former's priority of right on account of the date of discovery, it is his duty to bring an adverse suit ”

“ Until one is made there is made until the discovery of the vein or lode within the limits of the claim located.' The discovery in the tunnel is like a discovery jon the surface. Until one is made there is no right to locate a claim in respect to the vein, and the time to determine where and how it shall be located arises only upon the discovery,-whether such discovery be made on the surface or in the tunnel.'
But that comes far short of meeting the question before us. It is undoubtedly true that discovery is the initial fact. ”

“ Doubtless a locator does not acquire the right of exclusive possession unless he has made a valid location, and discovery is essential to its validity; but if all the acts prescribed by law are done, including a discovery, is it not sacrificing substance to form to hold that the order of those acts is essential to the creation of the right? It must be remembered that the discovery and the marking on the ground are not matters of record but in pais, and, if disputed in an adverse suit or otherwise, must be shown, as other like facts, by parol testimony. ”

“ Hence, in the mining laws of all civilized countries the great consideration for granting mines to individuals is discovery. 'Rewards so bestowed,' says Gamboa, 'besides being a proper return for the labor and anxiety of the discoverers, have the further effect of stimulating others to search for veins and mines, on which the general prosperity of the state depends."
Location is the act or series of acts by which the right of exclusive possession of mineral veins and the surface of mineral lands is vested in the locator. ”

“ But it may be said that when the time of a particular fact is concluded by an adjudication, or when an opportunity is presented for such an adjudication, and not availed of, the time as stated must be considered as settled; that when the plaintiff applied for its patent, if there was any question to be made by the defendant of any statement of fact made in the location certificate or other record, it should have been challenged by an adverse suit. ”

“ Where a lode claimant applies for a patent to a location embracing a lode which has previously been discovered in the tunnel, the tunnel claimant will be compelled to adverse to protect his rights. A right in the particular lode inures to the tunnel proprietor immediately upon its diseovery in the tunnel, which right is essentially adverse to the lode applicant ”

“ If everything has been done which, under the law, ought to be done to entitle the party to purchase the ground, wherein is the government prejudiced if the precise order of those acts is not followed? ”

“ These suggestions add strength to the concurring opinion of three leading commentators on mining law, the general trend of the rulings of the department and decisions of the courts, to the effect that the order in which the several acts are done is not essential, except so far as one is dependent on another. ”

“ The certificate also contained a full description of the boundaries of the tunnel site as claimed.
In a general way it may be said that the defenses which were stricken out were a priority of right and an estoppel. ”

“ The plaintiff filed an amended complaint, alleging in substance that it was the owner in fee and in possession, and entitled to the possession, of the Ocean Wave and Little Mary lode mining claims, being survey lot No. 8192, evidenced by mineral certificate No. 338, the patent of the United States to said plaintiff for said claims bearing date December 21, 1893 ”

“ Ct. Rep. 560; Butte City Water Co. v. Baker, 196 U.S. 119, 25 Sup. Ct. Rep. 221, 49 L. ed. 409.
And many territories and states (Colorado among the number) have made provisions in respect to the location other than the mere marking on the ground of the boundaries of the claim. ”