
    ERHARDT et al. v. BOARO et al.
    
    
      (In the U. S. Circuit Court, District of Colorado,
    
    
      Application for Injunction,
    
    
      June 20, 1881.)
    
    Mining Claim—Discovery Stake—Possession. The statute of Colorado, which gives sixty days after the discovery of a mining claim in which to sink a discovery shaft, and make location, does not require the discoverer to remain, during that interval, in actual personal possession by being present upon the ground. The erection of the discovery stake, with the required notice thereon, is notice to all others of the claim of the discoverer, and amounts to constructive possession, which is sufficient during the period provided by the statute.
    Assessment Work—Intimidation. That the discoverer is preyented from doing assessment work within prescribed time by intimidation on the part of an adverse claimant, is sufficient excuse, and will not deprive him of his right to locate the claim.
   Miller, J.

Plaintiffs, while prospecting on the public domain, discovered mineral within about two feet of the surface of the ground, and on the 17th day of June, set up their discovery stake, containing the name of the lode—-Hawk—the date of the discovery, the name of the discoverers, and the other matters substantially as required by law. On the 30th day of June, thirteen days thereafter, the defendants pulled up the stake so set by the plaintiffs, threw it away, entered into possession, and went to work in the same hole, and having sunk the shaft to the required depth, made a location of the claim.

Plaintiffs brought their action at law for the possession, alleging that they were the discoverers thereof, had planted their discovery stake, and within the sixty days allowed by law in which to complete the sinking of their prospect shaft and make their formal location, the defendants wrongfully entered and hold the claim; and plaintiffs seek an injunction in aid of their action at law, to restrain the defendants from working the claim and removing ore therefrom. The affidavits filed in support of the motion for injunction show that in consequence of threats made by defendants, plaintiffs were detered from entering on the claim and prosecuting the development work within the time required, and that, though they procured a survey to be made upon which to make out a location certificate, this was done secretly, by the officer who made the survey for defendants. It is claimed for defendants that the plaintiffs were not in actual possession of the claim between the 17th day of June, the time they set their stake, and the 30th of June, when defendants entered ; and further, that the notice upon the discovery stake of plaintiffs was not sufficient, in that it failed to give the course of the lode.

The law of the state gives sixty days after making discovery of mineral, in which to sink a shaft ten feet in depth. The main object of the sixty days possession, it seems to the court, must be to allow time to discover the course of the lode in order that the location may be made thereon. Counsel for defendants made an ingenious argument to show that the locator during those sixty days, to hold his right, must remain in continuous actual possession of the ground. The court does not so hold. If the discoverer put up a stake at the discovery, giving the name of the lode, date 'of discovery and notice of his intention to locate the claim, this is equivalent to actual possession. Otherwise the statute serves no useful purpose. The intention of the statute must be that the setting up of the discovery stake with the notice thereon as required, is equivalent to actual possession for the sixty days, within which he may proceed to the next step, to wit: Sink the discovery shaft to the depth of ten feet, have survey made, mark the lines and make formal location.

M. B. Carpenter, Welts, Smith & Macon, attorneys for plaintiffs.

Markham, Patterson, Thomas & Campbell, attorneys for defendants.

That the plaintiffs did not sink the shaft to the required depth of ten feet within the sixty days, cannot prejudice their right in this case, for the reason that the defendants prevented them from so doing by taking possession of their excavation. Plaintiffs could not prosecute their work while the defendants were in the occupancy, and this is sufficient reason for not sinking the shaft within the time prescribed. The injunction will be awarded.  