going sections, that a location must rest upon a valid discovery, yet a location otherwise good, with a discovery made after location and before the intervention of adverse claims or the creation of adverse rights, will validate the location from the date of discovery, and generally from the first act towards claim and appropriation-this by relation."

In Morrison's Mining Rights, 11th ed., p. 32:

"If a location be made before discovery, but is followed by a discovery in the discovery shaft, before any adverse rights intervene, such subsequent discovery cures the original defect and the claim is valid.”

In In re James Mitchell, 2 L. D. 752, it was held by Commissioner McFarland that, "although prior to location no discovery of mineral was made within the ground claimed, upon a subsequent discovery prior to application for patent the location became good and sufficient, in the absence of any adverse rights."

In Reins v. Raunheim, 28 L. D. 526, 529, Secretary Hitchcock declared that "it is immaterial whether the discovery occurred before or after the location, if it occurred before the rights of others intervened. Erwin v. Perego et al., 93 Fed. Rep. 608."

Reference is made to the statement of Secretary Smith in Etling v. Potter, 17 L. D. 424, 426, as though that announced a different conclusion, that "a location certificate is but one step, the last one, in the location of a mining claim." But a location certificate is simply a certificate required by the local statute or custom that some things have been done, and of course it must come after those things have been done.

Again, in the same volume, pp. 545 and 546, Northern Pacific Railroad Company v. Marshall, he said:

"In the location of a mineral claim, placer or lode, the first requirement of the law is a discovery. (Secs. 2329 and 2320 Rev. Stat.) All rights inuring to the benefit of the locators are based upon this initial act. (Erhardt v. Boaro, 113 U. S. 537; United States v. Iron Silver Mining Company, 128 U. S. 673; O'Reilly v. Campbell, 116 U. S. 418.) When, therefore, a

legal location has been made on land returned as agricultural, the slight presumption in favor of the return of the surveyor general is, ipso facto, overcome, and the burden of proofs shifts to the party attacking such mineral entry. By such discovery and location it is demonstrated that the return was erroneous, and it would be trifling with physical facts to put the onus on the locator to present further evidence until it is shown that, as a matter of fact, he had no discovery."

But the question he was considering was simply as to the burden of proof between one claiming land returned as agricultural land and one claiming a portion thereof, as an apparently legal location of a mineral claim.

In North Noonday Mining Company v. Orient Mining Company, 1 Fed. Rep. 522, 531, Judge Sawyer, in charging the jury, said:

"I instruct you further, that if a party should make a location in all other respects regular, and in accordance with the laws, and the rules, regulations and customs in force at the place at the time, upon a supposed vein, before discovering the true vein or lode, and should do sufficient work to hold the claim, and after such location should discover the vein or lode within the limits of the claim located, before any other party had acquired any rights therein, from the date of his discovery his claim would be good to the limits of his claim, and the location valid."

To the same effect was the charge of the same judge in Jupiter Mining Company v. Bodie Mining Company, 11 Fed. Rep. 666, 676.

In Cedar Canyon Mining Company v. Yarwood, 27 Washington, 271, the Supreme Court of Washington ruled that:

"In the absence of intervening rights, the fact that mineral is not discovered on a claim until after the notice of location is posted and the boundary marked is immaterial, and, where the discovery is the result of work subsequently done by the locator, his possessory rights under his location are complete from the date of such discovery. Nevada Sierra Oil Co. v.

Home Oil Co. [C. C.], 98 Fed. Rep. 673; Erwin v. Perego, 35 C. C. A. 482; S. C., 93 Fed. Rep. 608; Jupiter Min. Co. v. Bodie Consol. Min. Co. [C. C.], 11 Fed. Rep. 666; 1 Lindl. Mines, 335, and cases cited."

See especially Erwin v. Perego, cited in this quotation, decided by the Court of Appeals for the Eighth Circuit. Tending in the same direction are Thompson v. Spray, 72 California, 528, 533; Gregory v. Pershbaker, 73 California, 109, 118; Tuolumne Cons. Mining Co. v. Maier, 134 California, 583, 585.

But what is the meaning of the statute? Its language is "no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located." Does that require that a discovery must be made before any marking on the ground, especially when as under the Colorado statutes several other steps in the process of location are prescribed, or does it mean that no location shall be considered as complete until there has been a discovery? Bearing in mind that the principal thought of the chapter is exploration and appropriation of mineral, does it mean anything more than that the fact of discovery shall exist prior to the vesting of that right of exclusive possession which attends a valid location?

This may be looked at in another aspect. Suppose a discovery is not made before the marking on the ground and posting of notice, but is then made, and it and all other statutory provisions are complied with before the entry, which is an application for the purchase of the ground, of what benefit would it be to the Government to require the discoverer to repeat the marking on the ground, the posting of notice, and other acts requisite to perfect a location? 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? Or, to go a step further, suppose, on an application for a patent, an adverse suit is instituted, and on the trial it appeared that the plaintiff in that suit had made a discovery and taken all the

steps necessary for a location in the statutory order, although not until after the applicant for the patent had done everything required by law, would there be any justice in sustaining the adverse suit and awarding the property to the plaintiff therein on the ground that the applicant had not made any discovery until the day after his marking on the ground, and so the discovery did not precede the location?

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. 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 put in pais, and if disputed in an adverse suit or otherwise must be shown, as other like facts, by parol testimony. It must also be remembered that the certificate of location required by the Colorado statutes need not be verified. The one in this case was not. A locator might, if so disposed, place the date of discovery before it was in fact made, and at any time within three months prior to the filing of the certificate.

But it has been said that the question has been decided by this court adversely to these views, and Enterprise Mining Company v. Rico-Aspen Mining Company, 167 U. S. 108, and Calhoun Mining Company v. Ajax Mining Company, 182 U. S. 499, are cited. In the former case the question was as to when a vein discovered in a tunnel must be located, and in the opinion (p. 112) we said:

"In order to make a location there must be a discovery; at least, that is the general rule laid down in the statute. Sec

tion 2320 provides: 'But no location of a mining claim shall be 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 on 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. The language of the statute makes that plain, and parties may not go on the public domain and acquire the right of possession by the mere performance of the acts prescribed for a location. But the question here is whether, if there be both a discovery and the performance of all the acts necessary to constitute a location, the order in which these things take place is essential to the right of exclusive possession which belongs to a valid location?

In the Ajax case the contest was between mining claims on the one hand and a mining claim and tunnel site on the other. All the mining claims had passed to patent. The plaintiff in error, who was defendant below, held the junior patent issued upon a later entry, and the entries of plaintiff's claims were made and the receiver's final receipts issued prior to the location of the tunnel site. In other words, the defendant, admitting that its right to a tunnel had not been established by a location at the time of the entries of plaintiff's claims, sought to invalidate them by proof that there had been no previous discovery of mineral. This was refused by the trial court, and we sustained the ruling, saying (p. 510):

"The patents were proof of the discovery and related back to the date of the locations of the claims. The patents could not be collaterally attacked. This has been decided so often that a citation of cases is unnecessary."

An entry, sustained by a patent, is conclusive evidence that at the time of the entry there had been a valid location and VOL. CXCVI-23