Page:Federal Reporter, 1st Series, Volume 8.djvu/875

ERHAEDT V. BOA.EO. 861 �of the defendants is that there was not on the surface of the ground any indications of a Iode, and that it was necessary to make a con- siderable excavation to reach the Iode. They also olaim that there was no excavation whatever, such as mentioned hy Carroll, at the place in controversy, at and before the time of the location by Boaro. I am requested by plaintiff's counsel to add that it is not essential to the validity of a discovery that the mineral-bearing rock should be f ound in place. If the outcrop of the vein or body of mineral-bearing rock is found on the surface, the law allows the discoverer the period of 60 days from the date of his discovery for showing the vein or body of mineral-bearing rock to be in place at a depth of 10 feet or more from the surface. That proposition is correct. �The foregoing question, on which the testimony is conflicting, you are to determine, and if, upon that, you find for the plaintiff, you should proceed to the matters hereinafter stated. If, ou that point, you find for defendants, your verdict will be for them on that alone, ■without reference to any other matter. �2. If you find the first point for plaintiff, a further question for your consideration is as to the posting of notice at the point of dis- covery. It is incumbent on the plaintiff to show, by preponderance of testimony, as before stated, that a notice of the discovery and of the claim of the locator was put up at the point of discovery. Notice in any other form would be as effectuai, probably;' but as the plaintiff claims that the notice was posted on the claim, it is only necessary to consider whether that method was adopted. Carroll testifies that he posted a notice in his excavation at the point of discovery, and there is some evidence of admissions or declarations by Boaro to the effect that he found a stake there when he went on the ground. The defendants claim that no such notice was posted, and none found there by Boaro when he made his location. This is a controverted question, similar to the first stated, which you are to determine on the evidence. If you find that notice was posted, as testified by Carroll, you should also find that it was sufficient for the purpose for which it was designed, with this modification. It is in evidence, and it seems to be conceded by plaintiff, that the notice on the stake con- tained no specification or description of the territory claimed by the locators, as that they claimed a number of feet on each side of the discovery, or in any direction therefrom. �In this respect the notice was deficient, and under it the locators could not claim more than the very place in which it was planted. Elsewhere, on the same Iode or vein, if it extends beyond the place ��� �