Eureka Exploration Co. v. Tom Moore Mining & Milling Co.

Mr. Justice GabberT delivered the opinion of the court. The motion for non-suit was based and sustained upon the theory that the location of the Valentine lode claim was void for the reason that it was made upon the ground which the original locator had, from time to time, located under different names, under which a discovery cut was partially excavated, which, as extended, after locating the ground as the Valentine, was made the discovery cut of the latter. At the time this motion was interposed, it did not appear that any rights of defendant or any one else, had attached to the ground in controversy. In Ingemarson v. Coffey, 41 Colo. 407, we held that a locator, by re-locating, cannot extend the time within which necessary steps must be taken to complete a location. The law has fixed the time within which these steps must be taken, and the locator can not extend or enlarge that period by re-location'for his own convenience; but this rule only applies where the rights of third parties have intervened. The fact that the locator of the Valentine had previously located the same ground under different names, and under stich locations, had done some work [626] upon a discovery cut, but had never perfected any of these locations, cuts no figure in the circumstances of this. case. Plaintiff finally completed the location of the ground, and it is immaterial that he did not do so within the time the law prescribes, in the absence of any showing whatever -that the rights of the defendant to the ground in controversy had attached in the interim by virtue of the location of the J. A. P., or that any one else had superior rights in such ground which would invalidate the Valentine location. The time within which the steps requisite to constitute a valid location of a mining claim' is completed, is immaterial, provided they are all completed and performed before the rights of third parties intervene.—Healey v. Rupp, 37 Colo. 25; Treasury T., M. & R. Co. v. Boss, 32 Colo. 27; Brewster v. Shoemaker, 28 Colo. 176; McGinnis v. Egbert, 8 Colo. 41; Morrison’s Mining Rights (14th Ed.) 101. The judgment of the district court is reversed and the cause remanded for a new trial. Reversed and Remanded. Mr. Justice MussER and Mr. Justice Hill concur.