The Wadsworth dispatch. [volume] (Wadsworth, Nev.) 1892-1899, 1899-01-21

condition requisite to continue the right
acquired thereby, under the laws of Con-
gfess and OF the State. The sufiiciency
Of such evidence in every material par
ticular was constructed ut the trial and
is assailed by counsel Of defendants on
appeal, by elaborate argument, while
counsel for plaintiffs maintain the suti-
cheney OF the evidence to prove every
material fact by like argument.
As we understand it the court found
for the plaintiffs On all the facts, except,
as to the doing OF the discovery work
prescribed by the statutes Of Nevada OF
1897, y. lob, which provides section 2.
Before the expiration OF ninety days
from posting Of such notice upon the
claim the locator must sink u discovery
shaft upon the claim located to the depth
of at least ten feet from the lowest part
Of the rim Of such shaft at the surface,
or deeper II necessary, 10 show 10y such
work a lode deposit OF mineral in place.
A cut, or cross cut, or tunnel which cuts
the lode ut u depth Of ten feet, or an
open cut at least ten feet in length along
the lode from the point where the lode
from the point where the lode may he
lode may he in any manner discovered,
is equivalent to a discovery shaft"
The court found In effect, that the dis-
covery work done by plaintiffs within
the ninety days was not sufficient under
said Ststue, and that no further work
was done by the plaintiffs prior to the
entry OF the defendants upon said min
ing claim Oh the 22nd day OF December,
1897.
As conclusion OF law the court found
that the plaintiffs location OF the Morn
ing Star Mining Claim was not competed
prior to the entry OF the defendants on
account OF tie lack oil the amount Of dis
coyery work required by said statute,
and give judgement for the defendants
accordingly Counsel argue and urge
that the work performed by the plaintiffs
was a substantial compliance with said
statute. BY stipulation OF the parties
the judge Of the .,ial court visited the
mining claim to determine from actual
inspection and observation the sntiici-
ency Of the discovery work done by the
plaintiffs, and to determine all other ,iir-
puted matters OF TACT so Tar us the same
might be determined by such examina-
ton.
We 10 ot,considered that we are war
rantei by the evidence to disturb the
finding Of sHeh facts ly the court.
The validity OF the provisions of said
statute with reference to discovery work
is directly involved in this case and pr :
sented for determination on this appeal.
The determination OF this question will
dispose Of the ease, and We do not deem
it material TO consider or pass upon the
many other questions discussed by II
sci.
In Colorado and several other States
the work as specified in the Nevada stat.
ute is required to he performed as a pre-
requisite TO the completion OF a location.
The same character OF work is required
III other States, but it is not made, in
terms at least, necessary to complete a
location, Int rather as we think a condi-
ton to the continuance OF the right
acquired by locaiion.
We regard 1t as entirely immaterial
whether under State legislation in refer
ence to discovery work, The performance
thereof be regarded as a necessary act of
location or as a condition 10 the continr-
ance OF the right after location. If such
legislation is valid in the one case it IL in
the other. In Erhart VS.. Board, 1l3 U.
s., 527, Tie Supreme Court Court of the
uni'ed States recognized the validity of
the Cnlnrada net rerar1llnu .u.L di.or