The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-12-15

ficiently valuable to pay for the work OF ex-
t~ractinR the ore. Tho case was appealed TO
the supreme court, and this ruling, among
others, assigned as error. The opinion OF
thu majority of the court. by Mr.. Chief
Justice Blake, sfirms the decision
OF the court below, but not upon
this ground; the affirmation is upon the
question of %estoppel, which was also raised
in the case, md upon which Mr.. Justice
Dewitt disssnted. But in the opinion de-
livered by him, treating of the question OF
the nature Of a discovery, the whole court
was agreed. The opinion goes on in effect
to remark that the supreme court Of the
United States, which is the court of last re-
sort upon propositions of mining law, has
never directly held what must DO found in
value in o vein in order to entitle il to be
located. There have been many cases be-
fore that court in which it has been held
that in a contest between presumption
claimants, agricultural claimants, or town
site claimants, on the one side and mineral
~locators on the other. and whore patents
have been issued to ons of the former class
of claimants, that in order to successfully
attack such patents or claims it must app
pear that at the time of the grant from the
government the mine was sufficiently salu-
able to pay for the work of extracting the
mineral.
The court reviews at length the old case
OF Desseback vs.. Hawke n also the recent
case of Davis, administrator. against VIE
bold, which went to the supreme court from
Silver Bow county. The opinion in this
case also reviews some decisionG of Judges
Sawyer and HRllett and one from the su-
prsme court of the United States, wherein
it would seem that those decisions have
held coward the conclusions Of the supreme
Nnnpt that khA in ~ a an ri thn T1nSkol
States has never directly held, nor do its
decisions necessarily, or at all, imply any
doctrine that q miner before he makes q To-
cation must discover q vein or lode contain
ing mineral sufficiently valuable to pay for
its extraction. 1T is perfectly apparent
of the decisions of the United States SUI
prsme court, that We may state one propo-
sition positively, that i, that the court has
never yet held, as did the court below in the
case at bar, that in order to entitle one to
locate a mining claim upon the public do
first discover a lode or vein con-
tanning rock bearing known mineral de-
pOsits of such richness as. to justify work to
extract them. But, do the decisions of that
court necessarily, or ut all, imply hat doc
trine? The advocates of the view of the
law as declared by the district court, can
detach from the opinions of Mr.. Justice
Field certain expressions, and upon them
frame an argument. We refer to his ex-
pressions in reference to minerals of such
richness to pay for the labor of exploitation,
or the raising to the surface. But these
expressions were used in every instance, in
discussing what the mineral character of
the ground should appear to be at the time
of the grant OF the government, of the land,
for purposes other than those of u mine. in
order to except the alleged mineral land
from such grant for such other purposes.
81 ha.A ~ n w IA n vyAuk ,vr ~ n - 5IrA rr,--
mineral ground which is valuable for ex-
ploitation II that which appears to be
valuable for e1plot alton. There are i'm
mense tracts which appear to the miner to
be valuable for the latter purpose, and a
large portion of which develops to be val
ueless for the former. This is evidenced
by the honey-combed and deserted noun
tains throughout the mirfing regions, whore
toll and wealth have been expended on
leads which once attracted the miners ex-
ploration, but where the sound Of the pick
and drill is long since stilled. And 1t is
just this fact that has made and will
make the mines, tho ever present n al
luling appearance of value, and the occa-
Monal reward of developments. Without
prospecting there will be no discovered
mines. Without the privilege to claim and
locate and hold a discovery. there will be
no prospecting. A prospect not once in q
hundred times is a min in sight. If the
locator must show a paying mine at Local
ton, the riches in these mountains are a
locked treasury.
''Th law does not contemplate this.
The mineral lands are open for two purposes,
for exploration and for purchase. Explora-
tion precedes purchase. 1t opens the way
for purchase. Without exploration pur-
chase would be rare. A miner would de-
sire to purchase the mineral lands at once,
it they at once appeared to be of sufficient
value to pay for work. He would desire to
explore them if they seemed sufficiently
valuable to attract exploration. It is a rare
claim that ia a mine At tia grass roots, or
where tho paying vein isi first found at or
near the surface. The history Of the min
ing countries has shown that In the vast
majority of cases. yeatigliof toll and thou
sands Of dollars have been3required to dem
onstrate that n mineral vein will pay to
work. And in many OF them, even after
years of immense production, when dead
work, prospecting and. development is off
set against the output, whether thev nave
paid to work is u doubtful proposition.
Must the miner await large development
and tremendous expenditure before he can
ing, to secure himself the right Of posses
sion, and of a grant from the governments,
when the great mine is developed We
think not.
''The whole spirit of the statutes, and
the construction given by the. learned
" aHo tahp law COitbiAcEca tuCLuS 10 uOu
that the prospector must find a paying
mine bofose he can locate his claim. II it
were, mining prospecting in these regions
would suffer an instant and well-nlgh total
paralysis. "A valid location of "A mining
claim may be made whenever the prospec-
tor has discovered such indications OF
minerals that he il willing to spend his
and money in ~followingin expectation
OF finding Ore;' Harrington va. Chambers.
court of Utah. This language !
not feel that | can adopt. 1t COOS further
than there ia necessity fol, or is required to
the views I hold. II il wefo modi-
fled to say in expectation of inding ore
valuable to work the views Of
the learned Justice would be nearer to the
] hold.
so that, II the miner finds that which il
q lode or vein, within the approved daefhni-
lions, containing valuable mineral deposits;
II il 10 a vein of that character, aud that
he can follow, as indicated, n min
eral lode, his guide, his star. no may claim
u, and locate IL. and hold it. without being
required to show that at the time OF loca-
tion II contained mineral deposits Of suf-