Page:Federal Reporter, 1st Series, Volume 8.djvu/707

CBOSSMAN V. PENDEBY. 693 �set their stake, and the thirtieth of June, when defendants entered ; and further, that the notice npon the discovery stake of plaintifEs was net sufficient, in that it failed to give the course of the Iode. �The law of the state gives 60 days after making discovery of minerai in which to sink a shaft 10 feet in depth. The main objeot of the 60 days' possession, it seems to the court, must be to allow time to discover the course of the Iode in order that the location may be made thereon. Counsel for defendants made an ingehious argument to show that the locator during thoss 60 days, to hold bis right, must remain in continuons actual possession of 'the ground. The court does not se hold. If the disooverer put up a stake at the discovery, giving the name of the Iode, date of discovery, and notice of bis intention to locate the claim, this is equivalent to actual possession. Otherwise the statute serves no tlaeful pui^ose.' The intention of the statute must be that the setting up of'the discovery stake with the notice thereon, as recfuired-, is equivaleut to actual possession for the 60 days, within which he may proceed to the riext step, to-wit: sink the discovery shaft to the deptfa 'df 10' feet, have survey inade, mark thelines, and make formai loefttioii; That the plaintiffs did not sink the shaft to the requireddej^th ai'lO feet within the 60 days, cannot prejudice their ifight in this 'ease, for the ieason that the defendants prevented them from sd^'dbiiig by taking possession of their excavation. Plaintiffs could not prosecute their work while the defendants were in the oceupanby, ■ and this is sufficient reason for not sinking the shaft within the time pre- scribed; ' •- �The injunetioii will be awarded. ���Cbossman and others v. Pbndbet and others. �{Circuit Court, D. Colorado. April, 1881.) �1. MmEKAL IN Place — Discovbreeb — Locatoks — Titlbi. �Priority in discovery gives better title to minerai in place than priority in location and continuons possession. �T. A. Green, for plaintiffs. �Wm. Harrison, for defendants. �MiLLEB, Justice. 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 reg- ��� �