
    CROSSMAN et al. v. PENDERY et al.
    
    
      (United States Circuit Court, District of Colorado
    
    
      April Term, 1881.)
    
    Mining Claim—Possession before Discovery of Mineral in Place. The prospector upon the public domain can hold to the extent of his claim in actual possession prior to the discovery of mineral in place ; but if he stand by and permit another to sink a shaft within his boundaries, and the latter first discovers mineral, his will be the better claim.
   Miller, J.

This cause is submitted upon an agreed state of facts, to the effect that the ground in controversy is covered by the surface lines of the Orion claim, located by plaintiff, and also, of the Pendery claim, located by defendant; that both locations are regular as to form; that the Orion was first located, surveyed and staked; that the locators have steadily prosecuted work in the development thereof, and have discovered mineral in place; that the discoverers of the Pendery, located subsequently to the Orion, and while the locators, of the latter were in possession thereof, also prosecuted work and dicovered mineral in place before the discovery by the locators of the Orion. The question submitted to the court is this: Can prospectors on the public mineral domain acquire any right in which the law will protect them, prior to the discovery of mineral in rock in place? And, if so, can plaintiffs, being prior locators, recover against defendants, who first discovered mineral on the ground in controversy?

T. A. Greeti, attorney for plaintiffs.

Wm. Harrison, attorney for defendants.

It is the opinion of the court, that inasmuch as the plaintiffs allowed the defendants to enter upon their claim and within their boundaries, and there sink a shaft, in which they discovered mineral in rock in place before a discovery by plaintiffs, and make location thereof without protest, the defendants now have the better right. But the plaintiffs might have protected their actual possession of their entire claim by proper legal proceeding prior to the discovery of mineral by the defendants, or by either party.

A prospector on the public mineral domain may protect himself in the possession of his pedis possessions while he is seaching for mineral. His possession so held is good as a possessory title against all the world, except the government of the United States. But if he stands by and allows others to enter upon his claim and first discover mineral in rock in place, the law gives such first discoverer a title to the mineral so first discovered, against which the mere possession of the surface cannot prevail, and in this case judgment must be for the defendants.  