CROSSMAN

V.

PENDERY.

693

set their stake, and the thirtieth 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 60 days after making discovery of mineral in which to sink a shaft 10 feet in depth. The main object of the 60 days' possession, it seems to the court, must bato 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 60 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 'actnal p08session. Otherwise the statute serves no t1sefnl' purpQse" The of the statute must be that the setting up of'the discovery ,to actual staite with the notice thereon, as required; is' possi3$sion for the '60 days, within which he may to the next step, to-wit: sink the discoveryshaftto'the d6pth 'Of 10' feet, Th'at have survey m.ade,D;1ark the'1ines, and make the plaintiffs did not sink theehaft to the required'depth 101'10 feet within the 60 d!l.ys, cannot prejudice their tight in thisi-(\aee, for the reason tha.t the defendants prevented them 'frtnn'S6'dbitig by taking possession of their excavation. Plaintiffs could 'not prosecute their work while the defendants were in the occupaney,' andthle is reason for not sinking the shaft 'within the time prescribed:' ., . The injunCtion will be awarded.

CROSSMAN and others v. PENDERY and others.
(Circuit Court, D. Colorado.

1.

April, 1881.)

MINERAL IN PLACE-DISCOVEllERS-LoCATORS-TITLE.

Priority in discovery gives better title to mineral in place than priority in location and continuous possession. .

T. A. Green, for plaintiffs. Wm. Harrison, for defendants. MILLER, Justice. This causo is submitted upon an agreed state of facts, to the eJlect 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 reg-

ti94

ular as to form; that the Orion was first loeated, surveyed, and staked; th11,t th(:jlocato,rs have steadily prosecutecl work in the develplace; that the disopment thereof, and coverers of Pendery, located subsequently to.the Orion, and while the locators of the latter were in possession thereof, also prosecuted work aBel di!3oovered mineral in place before the discovery by the locators olthe Orion., The question submitted to the conrt is this: on the ,public mineral domain acquire any right in whiQh law willproteQt them prior to the discovery· of mineral in rock in And, if so, c.an plaintiffs, ,being prior locators, recover against defendants, who first discovered mineral· .on the ground in controversy? . It is opinion of the court that inasmuch as the plaintiffs allowed,tqedefendants to enter upon their claim and within .their boundaries .and there sink a. sha.ft, in which they discovered mineral in rock a. discovery by plaintiffs, a.nd make location thereof, without protest, the defendants now the better right. But the plaiJ.ltiffs might have proiectedtheir actual possession ot their ,by proper legal proceeding prior to the discovery of minellal.})y the defendants, or by either party. A prospector on the public minerll.l domain may protect himself in of his pedis p088e88ioni8 while he is searching for His 'possessipn so held is good as a possessory title against all the world, except the government of the United States., But he stands by and allows others to enter upon 4is claim and first. discover mineral in rock in place, the law gives such first discoverer a title to the mineral so first disoovered, a,gainst which the mere possession of the surface cannot and in this case judgmeuc must be for the defendants.
j'I';,

COBB V. KIDD.
: t,

"

COBB

L

NEW

mIDD.

(Olrcuit Court, S. D. NetIJJ York.

Septemtlii 7, 1881.')

AGREEMENT TO P ' , A new trial not be on the ground of misdirection of tbe jUry,' where, in anaetion brought by tenants in commop. jointly, but continued by the survivor after suggesting on the record the death oitha other, to recover; worth, the what theut\e and occupation of certain premise!! were jury' were instructed that tpe plaintifi was entitled to recover, if they found that the defendant remained in occupation under an implied agreement to pat . rent; and that m agreement to pay rent lVould be implied, if the' defendant occtWied. the premises by the..lessors' permission., without any under,tanding .that such occupation should be without compensation. . .',',

will

-

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:Benedict, Taft for pla.intifi. O. Bainbridge Smith, for defendant. . 'WA.14LACE, .D. J. The plaintiff h.aving o.bt,ai;Q.ed lit verdict upon the kial,. the defendant now mQves for a new trial.: , The MtiOn. is for use and occupation of ,certain'premises in the Ne.w York·. The defendant originllolly.entered into possession, un<ler leases executed, severally by the two tenl),n,ts,. common, whO. were of the 'premises. After the leases; expired, ·by. agreement with the tenants in common .llowed to August 1, 1875"at&speeified rent. The evidence authorized the jury to find that, by the joint the lessors, the defendant was allowed· t,o cOll;tjuP-ejnthe. further occupation of the premises, without paying allY rent,'unti(Angul3t 1(), 1875; and after that time, until the middle of October, though the lessors desired possession of the premises an,d wil;,hed themvaeated as soon as practicable, they acquiesced in the defendant's occupatiop of them for the accommodation of the defendant. After the suit was one of the lessors died, and this fact was suggested in the record upon the trial, and the action continued in the name of the survivor. . n;structed that the plaintiff was entitled to recover The jury for use and occupation after August 15, 187i>,if they found that the defendant remained in occupation of the premises under an implied to pay rent. ,They were also instructed a.n agreement to pay rent would be .implied if the defendant occupied by the ,permission of the lessors and there was no understanding that such occupation should· be withoutcorQpensation. It is insisted .that thefl6. instruptions were hhQ plaitltiff, as more. than his of. th6