The weekly miner. [volume] (Butte, Mont.) 1878-1881, 1880-07-13
DISCOVERY AND LOCATION.
The Golden Terra Case In the Black
Hills.

". ~. MOODY, OF the uTSI Juulclal ulSIFlCI,
Dakota territory, in the case of the Golden
Terra mining company vs. Alfred j. q. NAH
Ter and others. Although other occupations
have delayed our considerations of this case, it
10 not too. late, and we deem it important, to
call attention to some points in Judge Moody's
Il construction of the law, which have not
hitherto been passed upon, and which will
probably affect the claims of parties in other
eases hereafter. We shall contine ourselves,
in enc brief statement of the matter, to those
features which possess a genera interest.
i The Golden Terra company derived its title
to its own acknowledged property, and its
claim to the ground occupied by the defend
ants, through the original locations and sub
sequent transfers of other parties. We will
not complicate the narrative with such Incl
dents, but will regard the plaintiffs as being
in fact, as they were by subrogatlon, the
original ~locators.
The following circumstances present the
first and fundamental question of the case:
In February, 1876, the plaintiffs discovered
q lode, on which they duly located a claim
1900 by 800 feet in size, running northwest
and southeast, and having the point of discov-
cry in the center. This was the Golden
Terra.
2. In June, 1876, they discovered, as they
supposed, another lode, parallel with the
first, aud made a location upon it of similar
size, ssto protect the Golden Terra" The
discovery point was within the existing Col
den Terra location, aud the new claim (called
the Ophir) partly overlapped, sidewise, the
earlier one, besides extending beyond it like
a longitudinal continuation, a little to one
side. A the court puts it, "rhe Ophir is
nearly all included within the exterior bound
aries of the Golden Terra clam, leaving out
side of such boundaries a strip along the
westerly side of the Terra about 60 by l150
feet. and upon the south and southwest d par
eel of about 300 by $50 feet" Subsequent
developments proved that this was not anoth-
er lode, but a part of the Golden Terra lode.
S. The defendants (tllat is to say, their
grantors) discovered on the 10th of August,
1876. Gas the court decides, upon somewhat
conflicting testimony and argument,) a lode
on which they loca ed the Golden Terra En-
tension claim. This location embraces a part
of the last named parcel of the Ophir.
The court holds, first, that the Ophir loca-
ton could not affect i'll any way the rights of
the plaintiffs as ~locators and owners of the
Golden Terra. So much of it rs is included
within the lines of the Golden Terra is simp-
ly void. This is Il plain proposition under
the present statute, which clearly grants to
the locator the land III fee, and not merely
the use of it for mining purposes. 1t appears
that the Golden Terra lOcators did not under
stand this, but acted as though the earlier
federal statutes and the former mining Gus
toms were in force. Miners should by this
time have learned that one valid location can
not he strengthened by putting another Oh
the top of it.
The court holds, secondly, that a location
can not be based upon a discovery within the
limits of another subsistlng and valid luca-
ton. The dis, Overy must be made upon
unappropriated public lands. A prospecting
shaft within an existing location is simply a
development of that location, not a basis for
another. This seems to us a necessary coll
struction of the law. 1t prevent the location
of ssextensio IS" without the re-discovery of
the ode, aud powerfully checks the monopo-
lizing and pirating practices which were so
easy under old mining customs aud under the
United States law of 1866. Judge Moody's
argument on this point is admirable and COLI
elusive.
The, court holds, thirdly, Uhough the find
ing as to facts and dates prevents this cOnces-
sion from beuefiting the plaintiHs,) that
though no discovery may have been made
within a claim at the time of its a tempted
location. still, if such a discovery should be
made subsequently,, then (provided no inter-
vening rights of others l,au acclued) "tht
very moment it was made the inception of
the title would take place, and what they had
done before in the way of stalking, recordinr,
improving. ETC., still existing, would inure to
their benefit as though done at and subsequent
to the time of the discovery, aud the validity
of the, location would date from the time of
the discovery" This application of the doc
trine of relation is open, perhaps, to some
doubt. AT least, we may fairly inquire INTO
the meaning and scope Of the saving clause
'iprovidei no intervening rights of others
have accrued" Probably this means only
the actual prior discovery by others of a vein,
and the locating thereupon Of a conflicting
claim. But if this is all, it is not enough.
One of '!the rights of others" Is to find out,
by inspection of the public records, the date
at which the title to a certain claim began.
If Il person locates and records a clam with
out discovery, he makes. to begin with, a
false statement, calculated to deceive all who
subsequently consult the record for the pur-
pose of ascerlaining his rights, so as to deter
mine the limits of his own. 1t is true. that if
no discovery be ever made subsequently,, the
record is void and perhaps it NAV be Sutfi-
cient for the later conner to satisfy himself, by
Inspection of the ground or by common re-
port, that such is the case. But if a discovery
be subsequently made, and the validity of the
location is to date therefrom, then this date
should be matter of public record, and not to
be left to be determined by the uncertainties,
and too often the corruption, ut oral testi-
mony given for a special purpose, from a con-
veniently vague or conveniently precise recol-
lection. The decision above quoted gives to
the man Who violates the law by locating
without a discovery distinct advantages over
those who, o5eyIng the law, make their dis
covery first and then record their title. 1t
gives him a primd facie claim before he has
any real one, and then relieves him from fix
ing once for all, and publishing to the world,
The date of his real claim, while he continues
to parade on the public records the earlier
and invalid date of his apparent claim. We
think there would be no injustice in requIr-
ilg of such a claimant that he should formal