Where judgments of the district court, rendered for the
plaintiff on verdicts in certain adverse suits, were reversed by
the circuit court of appeal upon a construction and application of
the mining laws without disposing of other question presented, and,
because of the general interest of the federal questions so
decided, writs of certiorari were allowed to review such judgments
of reversal, held
that this Court, although it might
confine itself to the matters considered by the circuit court of
appeals, would proceed to a complete decision, since the parties
united in presenting all the questions and the litigation had been
protracted. P. 252 U. S.
Assertion of defendant's possession in the answer cures omission
to aver it in the complaint in ejectment. Id.
To avoid a waiver, objections to defects of pleading should be
timely, and not deferred for advantage at the trial.
A contract for a specified share in the proceeds of a mining
location with a right to have it worked and made productive need
not be recorded, in Nevada, to be good inter partes.
252 U. S.
One who has such a contractual interest is a proper party to an
adverse suit brought to protect the claim, and, under the law of
Nevada, may be allowed to come in as a plaintiff before the trial.
In Nevada, an interest in a mining claim arising from a
husband's location and deeded by him to his wife for a recited
present money consideration is community property where it does not
appear that the consideration came from her separate property, or
that the mining interest was treated as such, or that a gift to the
wife was intended, and the husband may file an adverse claim
against a hostile application for patent, and sue to protect the
claim in his own name. P. 252 U. S.
The right of a mining locator to file an adverse claim and
maintain an adverse suit is not divested by prior attachment of his
interest, but his acts in that regard inure to the benefit of those
who afterwards, through the attachment case, succeed to his
interest, and they may be substituted as plaintiffs when such
interest has fully passed to them. Id.
Page 252 U. S. 287
An adverse claim is not invalidated by a misnomer of a claimant,
due to an inadvertence, by which no one is misled or harmed. P.
252 U. S.
Absence of revenue stamps does not make a deed invalid or
inadmissible in evidence under the Act of October 22, 1914.
Rules of the mining law restated respecting the rights of
explorer, those of lode locators and of placer locators,
significance and distinction of discovery and assessment work, and
the nature and effect of adverse proceedings. Pp. 252 U. S. 294
A placer discovery will not sustain a lode location, nor a lode
discovery a placer location. P. 252 U. S.
Location -- the act or series of acts whereby the boundaries of
the claim are marked, etc. -- confers no rights in the absence of
discovery. P. 252 U. S.
Assessment work does not take the place of discovery.
A junior placer location with earlier placer discovery prevails
over a senior lode location with later lode discovery. P.
252 U. S.
Evidence reviewed and held
sufficient to go to the jury
on the question of prior discovery as between lode and placer
claims, and as to whether the latter were initiated by trespass or
peaceably and openly or even with acquiescence of the lode
claimant. P. 252 U. S.
Evidence that placer claimants entered openly upon lode claims,
where some prospecting had recently been done and where there were
buildings, in charge of a watchman, which had been used by the lode
claimant in operations on other claims and which the placer
claimants did not appropriate or disturb, and that they made their
discoveries and locations and remained several months, working and
enough, in the absence of any proof that they
met with resistance or resorted to hostile, fraudulent acts, to
warrant a jury in finding no trespass upon the actual possession of
the lode claimant and acquiescence by him. Id.
The presence of buildings owned by a mining claimant, on his
claim but not used in connection with it, held
his actual possession of the place where they stood and, in less
degree, of the remainder of the claim, but ineffectual to prevent
others from entering peaceably and in good faith under the mining
laws. P. 252 U. S.
An adverse placer claimant does not admit the validity of a
preexisting lode location by posting a lode location notice through
a mistake, promptly corrected and not misleading. P. 252 U. S.
Generally, and specifically in Nevada, recitals of discovery in
location notices are self-serving declarations, not evidence
against adverse claimants. Id.
Revised Statutes § 2332 provides that, where a mining claim has
been held and worked for a period equal to the time prescribed by
Page 252 U. S. 288
local state or territorial statute of limitation for mining
claims, evidence of such possession and working for such period
shall be sufficient to establish a right to a patent in the absence
of any adverse claim. Held
that it doe not dispense with,
or cure the absence of, discovery. P. 252 U. S.
To "work" a mining claim is to do something toward making it
productive, such as developing or extracting an ore body after it
bas been discovered. P. 252 U. S.
249 F. 81 reversed.
The case is stated in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
These suits relate to conflicting mining locations in Nevada,
and are what are commonly called adverse suits.
Page 252 U. S. 289
The locations set up on one side are lode, and those on the
other placer, the former being designated as Salt Lake No. 3,
Midas, and Evening Star and the latter as Guy Davis and Homestake.
Joseph Ralph is the lode claimant, and the other parties are the
Ralph made application at the local land office for the issue to
him of a patent for the three lode claims, along with thirteen
others not here in question, and in due time two adverse claims
were filed in that proceeding, one based upon the Guy Davis and
covering most of the ground within the Salt Lake No. 3, and the
other based upon the Homestake and covering a considerable portion
of the ground within the Midas and Evening Star. These suits were
brought in a state court in support of the adverse claims, and
Ralph, the sole defendant, caused them to be removed into the
federal court, the parties being citizens of different states.
Afterwards, some of the original plaintiffs were eliminated and
others brought in, but the citizenship remained diverse as
The cases were tried together to the court and a jury, the
latter returning general verdicts for the plaintiffs and special
verdicts finding that, when the placer locations were made, no lode
had been discovered within the limits of any of the lode locations.
Judgments for the plaintiffs were entered upon the verdicts, and
motions by the defendant for a new trial were overruled. Upon writs
of error, the circuit court of appeals reversed the judgments and
ordered a new trial, one judge dissenting. Ralph v. Cole,
249 F. 81. The cases are here upon writs of certiorari which were
granted because the ground upon which the circuit court of appeals
put its decision -- the construction and application of some of the
mineral land laws -- was deemed of general interest in the regions
where those laws are operative.
The defendant does not rely entirely upon the ground of decision
advanced by the circuit court of appeals,
Page 252 U. S. 290
but urges at length that, if it be not well taken, the record
discloses other grounds, not considered by that court, for
reversing the judgments and ordering a new trial. And he further
urges that, if the decision of the circuit court of appeals be
right, it is not sufficiently comprehensive to serve as a guide to
the court and the parties upon another trial. The plaintiffs insist
that the judgments in the district court were right, and should be
In the circumstances, it is open to us to deal only with the
matter considered by the circuit court of appeals and to remand the
cases to it for any needed action upon other questions, or to
proceed ourselves to a complete decision. The latter course seems
the better, inasmuch as counsel have united in presenting to us all
questions thought to arise upon the record, and the litigation
already has covered a considerable period.
Criticism is made of the complaints. As presented in the state
court, they fully met the requirements of the local Code, Rev.Laws
1912, § 5526, and there was no request after the removal into the
federal court that they be recast to meet any further requirements
prevailing there. Apart from the local code, each sufficiently
stated a cause of action in the nature of ejectment, save as some
allegations were wanting in precision, and it was left uncertain
whether the defendant was in possession. The latter defect was
cured by an affirmative statement in the answer that the defendant
was in possession. Texas & New Orleans R. Co. v.
Miller, 221 U. S. 408
221 U. S. 416
If the other defects embarrassed the defendant, he should have
interposed a timely objection, which doubtless would have resulted
in appropriate amendments. Instead, he permitted the matter to pass
until the trial was in progress, and then sought to obtain some
advantage from it. This he could not do; by his failure to make
timely objection, the defects had been waived. We here dispose of a
related question by saying that, in our opinion, the
Page 252 U. S. 291
complaints, with the answers, put in issue the validity of the
lode locations, including the requisite mineral discovery.
The defendant insists that necessary parties did not join in
filing the adverse claims in the land office, that, in the suits,
there was a misjoinder of plaintiffs and a failure to join
essential plaintiffs, and that deeds showing title in some of the
plaintiffs were erroneously admitted in evidence in that they were
without the requisite revenue stamps. We think this insistence is
untenable in all its phases.
As respects the Guy Davis placer,
Davis and Faubert
were the original locators and Faubert soon conveyed a fraction of
his interest to Thatcher. These three filed the adverse claim and
brought the suit, the title being in them at the time. Thereafter,
Faubert transferred his remaining interest to Cole, Malley, and
Ross, and Thatcher conveyed a fraction of his interest to Healey.
Because of these transfers, and with the court's approval, Faubert
was eliminated as a party and Cole, Malley, Ross and Healey came in
as plaintiffs. Thus, the changes in title pending the suit were
followed by corresponding changes in the parties plaintiff.
At all the times mentioned, the title was in a sense affected by
an outstanding contract, executed by the original locators, which
invested Thatcher and Forman with a right to a specified share in
the output or proceeds of the claim, and possibly with a right to
have it worked, and thereby made productive. The contract was not
recorded, but this is not material, for the contract was good
between the parties, and no subsequent purchaser is calling it in
Rev.Laws 1912, §§ 1038-1040. Unlike
Thatcher, Forman had no interest in the claim other than under this
contract. He did not join in filing the adverse claim or in
bringing the suit, but, with the court's approval, came in as a
plaintiff before the trial. We think his interest
Page 252 U. S. 292
was not such as to make him an essential party to the adverse
claim or to the suit, and yet was such as to make him an admissible
party to either. Of course, the acts of those having the title in
filing the adverse claim and bringing the suit inured to his
benefit. And, had they proceeded in his absence to a judgment in
their favor, the same would have been true of it. But this does not
prove that he could not be admitted as a plaintiff. He had an
interest -- a real interest -- in the maintenance and protection of
the claim which was the subject of the suit, and in view of the
liberal provisions of the local statute, Rev.Laws 1912, §§ 4998,
5000, we think the court did not err in allowing him to come in as
a plaintiff. It is not asserted that his presence was prejudicial
to the defendant, and we perceive no ground for thinking it could
As respects the Homestake placer,
Murray Scott and John
J. Healey were the original locators, and the title was still in
them when the adverse claim was filed and when the suit was begun,
unless there be merit in the defendant's contention that Scott's
interest had then passed to others under attachment proceedings and
that Healey's interest had then passed to his wife. Neither branch
of the contention is, in our opinion, well grounded. The attachment
proceedings, although commenced before the adverse claim was filed,
did not result in a transfer of Scott's title until after the
present suit was begun. The purported conveyance of Healey's
interest to his wife, to which the defendant directs attention,
recites that it was made upon a consideration paid in money at the
time, and this is in no wise explained. There is no evidence that
the consideration was paid out of any separate property of the
wife, or that the conveyance was intended as a gift to her, or that
she ever listed the subject of the conveyance as her separate
property. In these circumstances, according to the laws of the
state, the Healey interest was community property, of which the
husband had the "entire
Page 252 U. S. 293
management and control" and the "absolute power of disposition."
He could lease or convey it without the wife's concurrence, and
could sue in respect of it in his name alone. Rev.Laws 1912, §§
2155-2160; Crow v. Van Sickle,
6 Nev. 146; Lake v.
18 Nev. 361, 384, 385; Adams v. Baker,
Nev. 375; Malstrom v. People's Ditch Co.,
32 Nev. 246,
There was here a contract with Thatcher and Forman like that
relating to the Guy Davis, and this gave them a real interest in
the claim, as already explained.
The adverse claim was filed and the suit was brought by Scott,
Healey, Thatcher and Forman. Afterwards, and following the
consummation of the attachment proceedings, the entire interest of
Scott was transferred to Cole, Malley, Ross, and Davis, and, by
reason of this, and with the court's approval, Scott was eliminated
as a party and Cole, Malley, Ross, and Davis came in as plaintiffs.
Thus, there was no misjoinder of plaintiffs, nor any failure to
join an essential party. Of course, those who succeeded to Scott's
interest pending the suit were entitled to the benefit of what he
had done while he held the title.
In one of the adverse claims, Healey's name was given as Frank
J. instead of John J., but this was a mere inadvertence, did not
mislead or prejudice any one, and rightly was disregarded by the
As to the absence of revenue stamps, it is true that the deeds
showing title in some of the plaintiffs -- they were produced in
evidence over the defendant's objection -- were without the stamps
required by the Act of October 22, 1914, c. 331, § 22, Schedule A,
38 Stat. 762. But this neither invalidated the deeds nor made them
inadmissible as evidence. The relevant provisions of that act,
while otherwise following the language of earlier acts, do not
contain the words of those acts which made such an instrument
invalid and inadmissible as evidence while not
Page 252 U. S. 294
properly stamped. Those words were carefully omitted, as will be
seen by contrasting §§ 6, 11, 12 and 13 of the Act of 1914 with §§
7, 13, 14 and 15 of the Act of 1898, c. 448, 30 Stat. 454. From
this and a comparison of the acts in other particulars, it is
apparent that Congress, in the later act, departed from its prior
practice of making such instruments invalid or inadmissible as
evidence while remaining unstamped, and elected to rely upon other
means of enforcing this stamp provision, such as the imposition of
money penalties, fines, and imprisonment. The decisions upon which
the defendant relies arose under the earlier acts, and were based
upon the presence in them of what studiously was omitted from the
As a preliminary to considering other contentions, it will be
helpful to refer to some features of the mineral land laws,
Rev.Stats. § 2318 et seq.,
about which there can be no
controversy, and also to what actually was in dispute at the trial
and what not in dispute.
By those laws, public lands containing valuable mineral deposits
are opened to exploration, occupation, and acquisition for mining
purposes, and as an inducement to effective exploration, the
discoverer is given the right to locate a substantial area
embracing his discovery, to hold the same and extract the mineral
without payment of rent or royalty, so long as he puts one hundred
dollars' worth of labor or improvements -- called assessment work
-- upon the claim each year, and to demand and receive a patent at
a small sum per acre after he had put five hundred dollars' worth
of labor or improvements upon the claim.
In advance of discovery, an explorer in actual occupation and
diligently searching for mineral [Footnote 1
] is treated as a licensee or tenant at will,
and no right can be initiated or
Page 252 U. S. 295
acquired through a forcible, fraudulent, or clandestine
intrusion upon his possession. But if his occupancy be relaxed, or
be merely incidental to something other than a diligent search for
mineral, and another enters peaceably, and not fraudulently or
clandestinely, and makes a mineral discovery and location, the
location so made is valid, and must be respected accordingly.
Belk v. Meagher, 104 U. S. 279
104 U. S. 287
Union Oil Co. v. Smith, 249 U. S. 337
249 U. S.
-348, and cases cited.
A location based upon discovery gives an exclusive right of
possession and enjoyment, is property in the fullest sense, is
subject to sale and other forms of disposal, and, so long as it is
kept alive by performance of the required annual assessment work,
prevents any adverse location of the land. Gwillim v.
Donnellman, 115 U. S. 45
115 U. S. 49
Swanson v. Sears, 224 U. S. 180
While the two kinds of location -- lode and placer -- differ in
some respects, [Footnote 2
discovery within the limits of the claim is equally essential to
both. But, to sustain a lode location, the discovery must be of a
vein or lode of rock in place bearing valuable mineral (§ 2320),
and to sustain a placer location, it must be of some other form of
valuable mineral deposit (§ 2329), one such being scattered
particles of gold found in the softer covering of the earth. A
placer discovery will not sustain a lode location, nor a lode
discovery a placer location. As is said by Mr. Lindley, [Footnote 3
] § 323:
"Gold occurs in veins of rock in place, and, when so found, the
land containing it must be appropriated under the laws applicable
to lodes. It is also found in placers, and when so found, the lands
containing it must be appropriated according to the laws applicable
Page 252 U. S. 296
"and again (§ 419):"
"In is the mode of occurrence, whether in place or not in place
[meaning in rock in place], which determines the manner in which it
should be located."
Location is the act or series of acts whereby the boundaries of
the claim are marked, etc., but it confers no right in the absence
of discovery, both being essential to a valid claim. Waskey v.
Hammer, 223 U. S. 85
223 U. S. 90
Beals v. Cone,
27 Colo. 473, 484, 495; Round Mountain
Mining Co. v. Round Mountain Sphinx Mining Co.,
36 Nev. 543,
560; New England Oil Co. v. Congdon,
152 Cal. 211, 213.
Nor does assessment work take the place of discovery, for the
requirement relating to such work is in the nature of a condition
subsequent to a perfected and valid claim, and has "nothing to do
with locating or holding a claim before discovery." Union Oil
Co. v. Smith, supra,
p. 249 U. S. 350
In practice, discovery usually precedes location, and the statute
treats it as the initial act. But, in the absence of an intervening
right, it is no objection that the usual and statutory order is
reversed. In such a case, the location becomes effective from the
date of discovery; but, in the presence of an intervening right, it
must remain of no effect. Creede & Cripple Creek Mining Co.
v. Uinta Tunnel Mining Co., 196 U. S. 337
196 U. S.
-351, and cases cited; Union Oil Co. v. Smith,
p. 249 U. S.
When an application for a patent to mineral land is presented at
the local land office and an adverse claim is filed in response to
the notice required by the statute (§ 2325), further proceedings
upon the application must be suspended to await the determination
by a court of competent jurisdiction of the question whether either
party, and if so which, has the exclusive right to the possession
arising from a valid and subsisting location. A suit appropriate to
the occasion must be brought by the adverse claimant, and in that
suit each party is deemed an
Page 252 U. S. 297
actor and must show his own title, for the suit is "in aid of
the land department." If neither establishes the requisite title,
the judgment must so declare. Rev.Stats. § 2326; Act March 3, 1881,
c. 140, 21 Stat. 505; Jackson v. Roby, 109 U.
; Perego v. Dodge, 163 U.
, 163 U. S. 167
Brown v. Gurney, 201 U. S. 184
201 U. S. 190
Healey v. Rupp,
37 Colo. 25, 28; Tonopah Fraction
Mining Co. v. Douglas,
123 F. 936, 941. If final judgment be
given in favor of either party -- whether the applicant for patent
or the adverse claimant -- he may file in the land office a
certified copy of the judgment, and then will be entitled, as
respects the area awarded to him, to go forward with the patent
proceedings and to have the judgment recognized and respected as a
binding adjudication of his exclusive right to the possession.
Rev.Stats. § 2336; Richmond Mining Co. v. Rose,
114 U. S. 576
114 U. S. 585
Wolverton v. Nichols, 119 U. S. 485
119 U. S. 489
Iron Silver Mining Co. v. Campbell, 135 U.
, 135 U. S. 299
Last Chance Mining Co. v. Tyler Mining Co., 157 U.
, 157 U. S. 694
Perego v. Dodge, supra; Clipper Mining Co. v. Eli Mining
Co., 194 U. S. 220
194 U. S.
The situation developed by the evidence presented and admissions
made in the course of the trial was as follows: at the outset, the
land was public and unappropriated, and it remained such save as
the locations in question or some of them may have changed its
status. The lode locations were made, one in 1897 and the other two
in 1907, and the placer locations in September, 1913. The title
under the latter already has been sufficiently traced. That under
the lode locations passed to the Glasgow & Western Exploration
Company soon after they were made, and the defendant, Ralph, claims
under a deed executed by that company's liquidator in 1914. The
principal controversy was over the presence or absence of essential
discoveries within the lode locations, it being denied on one hand
and affirmed on the other that a vein or lode of rock in place
bearing valuable mineral was discovered
Page 252 U. S. 298
in each location before the placer locations were made. It was
not controverted, but, on the contrary, conceded, that that point
of time was the important one in the inquiry. Thus, when the
presiding judge indicated his view by saying, "My idea is that you
can't take advantage of any discoveries made since the placer
locations, and I don't believe there can be any dispute about
that," counsel for the defendant responded, "No your honor, there
is none," and on another occasion counsel said,
"We are undoubtedly limited to proving that there was a
discovery of mineral in place on each of our lode claims prior to
the location of the placer claims."
In all particulars other than discovery, the regularity and
perfection of the lode locations were conceded. Closely connected
with the controversy over lode discoveries was another over the
applicability and effect of § 2332 of the Revised Statutes, but it
will be passed for the moment and separately considered later. As
to the placer claims, it was shown that they were based upon
adequate discoveries of placer gold within their limits, and
counsel for the defendant announced, "We don't deny this ground is
of placer character." Their boundaries were properly marked, and
the requisite notices were posted and certificates recorded. The
only questions respecting their validity that were presented and
need present mention were, first, whether, at the time the placer
locations were made, the lode locations had become valid and
effective claims, thereby precluding any adverse location of the
same ground, and next, if the lode locations had not then become
valid and effective, whether the placer locations were initiated
and made through wrongful intrusions or trespasses upon any actual
possession of the lode claimant. The defendant, as is admitted in
his brief in this Court, did not claim that any lode or vein was or
should be excepted from the placer claims, but only that they were
of no effect for the reasons just indicated.
Page 252 U. S. 299
The evidence bearing upon the presence or absence of lode
discoveries [Footnote 4
conflicting. That for the plaintiffs tended persuasively to show
the absence of any such discovery before the placer claims were
located, while that for the defendant tended the other way.
Separately considered, some portions of the latter were persuasive,
but it was not without noticeable infirmities, among them the
following: the defendant testified that no ore was ever mined upon
any of the lode claims, and that
"there was no mineral exposed, to the best of my [his]
knowledge, which would stand the cost of mining, transportation and
reduction at a commercial profit."
In the circumstances, this tended to discredit the asserted
discoveries, and of like tendency was his unexplained statement,
referring to the claims grouped in this patent application, that
"some of them have not a smell of ore, but they can be located and
held on the principle of being contiguous to adjacent claims" -- an
obviously mistaken view of the law -- and his further statement,
referring to vein material particularly relied upon as a discovery,
that he "would hate to try to mine it and ship it."
As respects the initiation and working of the placer
Page 252 U. S. 300
claims, the plaintiffs' evidence indicated that the locators
entered openly, made placer discoveries, performed the requisite
acts of location, excavated several shafts in the "wash" from 35 to
57 feet in depth, ran drifts from the bottom along the bedrock, and
mined a considerable amount of placer gold, and that these acts
covered a period of between two and three months. None of this was
contradicted, and there was no evidence that the locators met with
any resistance or resorted to any hostile, fraudulent, or deceptive
acts. But there was evidence of such ownership of buildings,
comparatively recent prospecting, and maintenance of a watchman on
the part of the lode claimant [Footnote 5
] as made it a fair question whether he was in
actual possession when the placer locators entered. That he was in
possession of the buildings and the ground where they stood was
made certain, but that he had any actual possession beyond that was
reasonably debatable under the evidence.
The buildings were all on the same claim, and covered only a
part of it. One was a mill formerly in use but then dismantled and
stripped of its machinery. All had been used in connection with
mining operations upon other claims, but the operations had then
been suspended. The buildings were not disturbed by the placer
locators, nor was there any attempt to appropriate them. A watchman
was in charge, but, so far as appears, he made no objection to what
was done. Although a witness for the defendant and in his employ,
he was not interrogated upon this point. Of course, ownership of
the buildings did not, in itself, give the lode claimant any right
in the land, or prevent others from entering peaceably and in good
faith to avail themselves of privileges accorded by the mineral
land laws, but the presence of the buildings
Page 252 U. S. 301
and his relation to them did have a bearing upon the question of
actual possession -- a pronounced bearing as respects the place
where the building stood and a lesser bearing as respects the other
Even if the lode claimant was in actual possession of all, it
still was a disputable question under the evidence whether there
had not been such acquiescence in the acts of the placer locators
in going upon the ground, making placer discoveries, and marking
their locations as gave them the status of lawful discoverers and
locators, rather than wrongful intruders or trespassers -- that is
to say, the status of explorers entering by permission and then
making discoveries. See Crossman v. Pendery,
8 F. 693.
The questions of fact to which we have adverted were all
submitted to the jury under a charge which was comprehensive,
couched in plain terms, and in substantial accord with the legal
principles hereinbefore stated. And, while the defendant criticizes
some portions of the charge, we think they neither included nor
omitted anything of which he rightfully can complain. As has been
said, the jury returned general verdicts for the plaintiffs, and
also special verdicts finding that no lode had been discovered
within any of the lode locations before the placer ones were
But it is objected that the court, instead of requiring the
plaintiffs to take the burden of proving the absence of essential
lode discoveries, subjected the defendant to the burden of proving
that there were such discoveries. This is not in accord with the
record. It there appears that the plaintiffs undertook at the
outset to establish the absence of any lode discovery, and
persisted in that course, a large, if not the larger, part of their
case in chief being directed to that point. When they rested, the
defendant moved that the evidence produced by them "as to the
absence of lodes, or the failure or inability of the witnesses to
find or discover lodes or mineral-bearing
Page 252 U. S. 302
rock in place" within the lode locations be stricken out because
not within the issues tendered by the plaintiffs' complaints. The
motion was denied, and in that connection the court observed that
the burden "undoubtedly" was on the plaintiffs not only to show
their own placer discoveries, acts of location, etc., but also
"that the ground in dispute was open to location," and the court
added, "[p]laintiffs have, so far as the record discloses, always
insisted that there was no lode discovery, and that the only
discovery was of placer." There was also an admission in the
defendant's requested instructions that the plaintiffs "in their
case in chief" introduced evidence tending to show that
"the ground comprised in the lode mining claims . . . contained
no lodes, veins or mineral-bearing rock in place and . . . that
said lode locations were therefore invalid."
And the court in charging the jury said:
"The burden is on the plaintiffs in the first instance to show
that, when they went on these claims to locate the placers, the
ground was open to location, and that there was at the time no
valid, subsisting location where their discoveries were made."
It therefore is plain that the burden of proof was dealt with
and carried in a manner which does not admit of criticism by the
It is objected also that the court refused to direct verdicts
for the defendant. But what has been said sufficiently shows that,
in our opinion, the evidence presented several disputable questions
of fact which it was the province of the jury to determine. This
was the view not only of the judge who presided at the trial, but
of another judge who, in overruling the motion for a new trial,
said: "I think that not only is there substantial evidence to
support the verdict, but the preponderance is upon that side." Were
we less satisfied than we are upon the point, we should hesitate to
disturb the concurring conclusions of those judges.
Page 252 U. S. 303
It is urged that the court erred in not holding that the placer
claimants had admitted the validity of one of the lode locations by
relocating the ground as a lode claim. A short statement of what
was done will show, as we think, that it did not involve any such
admission. After the placer claimants made their placer discovery,
a representative of theirs posted on the ground a notice stating
that they had relocated it as a lode claim. The next day, he
substituted another notice stating that they had located it as a
placer claim. The first notice did not accord with their discovery,
and the other did. Nothing was done or claimed under the first, and
all the subsequent steps were in accord with the other. Evidently
the first was posted by mistake, and the other as the true notice.
No one was misled by the mistake, and it was promptly corrected. In
these circumstances, the first notice was of no effect, and no
admission could be predicated of it. Zeiger v. Dowdy,
The further objection is made that no probative force was given
to recitals of discovery in the recorded notices of location of the
lode claims. The notices were admitted in evidence, and no
instruction was asked or given respecting the recitals. In one,
nothing is said about discovery, and what is said in the other two
is meager. But, passing this, the objection is not tenable. The
general rule is that such recitals are mere ex parte
self-serving declarations on the part of the locators, and not
evidence of discovery. Creede & Cripple Creek Mining Co. v.
Uinta Tunnel Mining Co., 196 U. S. 337
196 U. S. 352
Lindley on Mines, 3d ed., § 392; Mutchmor v. McCarty,
Cal. 603; Strepey v. Stark,
7 Colo. 614, 619; Magruder v.
Oregon & California R. Co., 28 L.D. 174. This rule is
recognized and applied in Nevada. Fox v. Myers,
169, 186; Round Mountain Mining Co. v. Round Mountain Sphinx
36 Nev. 543, 560.
Complaint is made because the defendant was not permitted
Page 252 U. S. 304
on the cross-examination of a witness for the plaintiffs to show
the contents of certain assay reports. In his examination in chief,
the witness told of taking twelve samples from openings made by the
lode claimant in the lode locations and of having the samples
assayed. Seven of the assay reports were produced at the
plaintiffs' request and put in evidence. They attributed to one
sample a mineral value of sixty-three cents per ton and to the
other six only a trace of mineral. In cross-examining the witness,
the defendant called for the remaining reports or their contents,
but the plaintiffs objected, and the objection was sustained. In
other respects, the cross-examination proceeded without
restriction, and included a full interrogation of the witness about
the points from which each of the twelve samples was taken. This
interrogation disclosed that one of the reports put in evidence
covered a sample taken from an opening made after the location of
the placer claims, and, because of this, that report was stricken
out at the defendant's request and with the plaintiffs' consent.
Near the close of the trial, the court recalled its prior ruling
and announced another more favorable to the defendant. The witness
was then recalled, and, after some further examination, three of
the remaining reports were put in evidence. They attributed to one
sample a mineral value of one dollar and thirty-four cents per ton
and to the other two only a trace of mineral. Thus, of the twelve
reports, all but two were produced. These two, like the one
stricken out, covered samples taken from openings made after the
placer claims were located. The defendant did not call for them
when the witness was recalled or reserve any exception to the new
ruling, and it is more than inferable from the record that he
acquiesced in it. Of course, there is no merit in the present
What we have said sufficiently disposes of all questions other
than that before mentioned respecting the applicability
Page 252 U. S. 305
and effect of § 2332 of the Revised Statutes, which
"Where such person or association, they and their grantors, have
held and worked their claims for a period equal to the time
prescribed by the statute of limitations for mining claims of the
state or territory where the same may be situated, evidence of such
possession and working of the claims for such period shall be
sufficient to establish a right to a patent thereto under this
chapter in the absence of any adverse claim."
The defendant, conceiving that the section could be invoked in
the absence of a mineral discovery, requested the court to instruct
the jury that, if the lode claimant held and worked the lode claims
for a period of two years -- the local prescriptive period for
adverse possession, Rev.Laws 1912, § 4951 -- before the placer
claims were initiated, such holding and working were the full
equivalent of all that was essential to the validity of the lode
claims, including discovery. That request was refused, and others
were then presented which differed from it only in that they
treated discovery as essential by coupling it with holding and
working. These were also refused, but no complaint is made of this
-- obviously because the jury were told that, under the evidence,
the lode claims should be regarded as valid if only the requisite
discoveries were made at any time before the placer claims were
initiated. The jury, as we have seen, found as matter of fact that
there was no such discovery.
The effect which must be given to § 2332 in circumstances such
as are here disclosed -- whether it substitutes something else in
the place of discovery or cures its absence -- is the matter we
have to consider. That the section is a remedial provision and
designed to make proof of holding and working for the prescribed
period the legal equivalent of proof of acts of location,
recording, and transfer, and thereby to relieve against possible
Page 252 U. S. 306
destruction of the usual means of establishing such acts, is
attested by repeated rulings in the land department and the courts.
But those rulings give no warrant for thinking that it disturbs or
qualifies important provisions of the mineral land laws, such as
deal with the character of the land that may be taken, the
discovery upon which a claim must be founded, the area that may be
included in a single claim, the citizenship of claimants, the
amount that must be expended in labor or improvements to entitle
the claimant to a patent, and the purchase price to be paid before
the patent can be issued. Indeed, the rulings have been to the
The view entertained and applied in the land department is shown
in the following excerpt from a decision by the Secretary of the
"One purpose of section 2332, . . . clearly shown in the history
of the proceedings in Congress attending its consideration and
passage there, was to lessen the burden of proving the location and
transfers of old claims concerning which the possessory right was
not controverted but the record title to which had in many
instances been destroyed by fire or otherwise lost because of the
insecurity and difficulty necessarily attending its preservation
during the early days of mining operations. . . ."
"The section was not intended as enacted, nor as now found in
the Revised Statutes, to be a wholly separate and independent
provision for the patenting of a mining claim. As carried forward
into the Revised Statutes, it relates to both lode and placer
claims, and, being in pari materia
with the other sections
of the Revision concerning such claims, is to be construed together
with them and so as, if possible, that they may all stand together,
forming a harmonious body of mining law."
Barklage v. Russell, 29 L.D. 401, 405-406.
The views entertained by the courts in the mining regions are
shown in Harris v. Equator Mining Co.,
Page 252 U. S. 307
F. 863, 866, where the court ruled that holding and working a
claim for a long period were the equivalent of necessary acts of
location, but added that "this, of course, was subject to proof of
a lode in the Ocean Wave ground, of which there was evidence;" in
Humphreys v. Idaho Gold Mines Co.,
21 Idaho, 126, 140,
where the section was held to obviate the necessity for proving the
posting, etc., of a location notice, but not to dispense with proof
of discovery; in Upton v. Santa Rita Mining Co.,
96, where the court held that the section should be construed in
connection with other provisions of the mineral land laws, and that
it did not relieve a claimant coming within its terms from
continuing to do the assessment work required by another section,
and in Anthony v. Jillson,
83 Cal. 296, where the section
was held not to change the class who may acquire mineral lands or
to dispense with proof of citizenship.
As respects discovery, the section itself indicates that no
change was intended. Its words "have held and worked their claims"
presuppose a discovery, for to "work" a mining claim is to do
something toward making it productive, such as developing or
extracting an ore body after it has been discovered. Certainly it
was not intended that a right to a patent could be founded upon
nothing more than holding and prospecting, for that would subject
nonmineral land to acquisition as a mining claim. Here, as the
verdicts show, there was no discovery, so the working relied upon
could not have been of the character contemplated by Congress.
The defendant places some reliance upon the decisions of this
Court in Belk v. Meagher, 104 U.
, and Reavis v. Fianza, 215 U. S.
, but neither contains any statement or suggestion
that the section dispenses with a mineral discovery or cures its
absence. The opinion in the first shows affirmatively that there
was a discovery, and that in the other shows that the controversy,
Page 252 U. S. 308
recent origin, related to "gold mines" which had been worked for
The only real divergence of opinion respecting the section has
been as to whether it is available in an adverse suit, such as
these are, or is addressed merely to the land department. Some of
the courts have held it available only in proceedings in the
department, McCowan v. Maclay,
16 Mont. 234, and others in
greater number have held it available in adverse suits, Upton
v. Santa Rita Mining Co., supra,
and cases cited. The later
view has received the approval of this Court. Reavis v. Fianza,
supra; Belk v. Meagher, supra.
We conclude that the defendant was not entitled to any
instruction whereby he could receive the benefit of § 2332 in the
absence of a discovery, and therefore that the district court
rightly refused to give the one in question. The circuit court of
appeals held that the instruction should have been given, and in
this we think it erred.
Judgments of circuit court of appeals reversed.
Judgments of district court affirmed.
As to the status of an explorer or locator on oil-bearing land
in advance of discovery, see
the special provisions in Act
June 25, 1910, c. 421, § 2, 30 Stat. 847, and Act March 2, 1911, c.
201, 36 Stat. 1015.
Clipper Mining Co. v. Eli Mining Co., 194 U.
, 194 U. S. 229
Webb v. American Asphaltum Co.,
157 F. 203; San
Francisco Chemical Co. v. Duffield,
201 F. 830; Harry Lodge
Mining Claim, 41 L.D. 403.
Lindley on Mines, 3d ed.
The following extracts from Chrisman v. Miller,
197 U. S. 313
197 U. S. 322
show what constitutes an adequate discovery:
"The mere indication or presence of gold or silver is not
sufficient to establish the existence of a lode. The mineral must
exist in such quantities as to justify expenditure of money for the
development of the mine and the extraction of the mineral."
"Where minerals have been found and the evidence is of such a
character that a person of ordinary prudence would be justified in
the further expenditure of his labor and means, with a reasonable
prospect of success in developing a valuable mine, the requirements
of the statute have been met."
"The facts which are within the observation of the discoverer
and which induce him to locate should be such as would
a man of ordinary prudence, not necessarily a
skilled miner, in the expenditure of his time and money in the
development of the property."
The lode claimant at that time was either the liquidator of the
Glasgow & Western Exploration Company or the company