Chief Justice Campbell
delivered the opinion of the court.
This is an action brought by plaintiffs below as the owners of the Eulalia lode in support of an adverse claim filed by them in the United States land office against the application for patent by the defendant for the Golden Eod lode claim, situate in Leadville mining district. At the close of the trial the court ruled that under the pleadings and evidence plaintiffs had not made out their case, and after instructing the jury as to the essential requirements of a lode location said that if defendant had complied therewith á verdict should be returned for it. There was a verdict for the defendant, and from the judg[40]*40ment thereon entered plaintiffs have brought the case here by appeal.
A number of rulings of the district court have been attacked as erroneous and argued by counsel which, were appellants in a position to complain, would merit most careful consideration. But since we have reached the conclusion that the trial court was right when it instructed the jury that plaintiffs were not entitled to- recover, because they had not shown a valid discovery of mineral in their location, it follows that many of the rulings attacked, even if wrong, are not prejudicial to plaintiffs, and we, therefore, determine only that assignment relating to such discovery, as it is the only one of which they may complain.
1. The ground covered by the two claims is substantially identical. It was formerly included within the limits of the Winter lode, and a part of it was afterwards embraced within the exterior lines of the Pocket Liner lode. When, in 1893, plaintiffs’ grantor went upon the ground, both of these claims were abandoned, and he proceeded to relocate as an abandoned claim the territory theretofore covered by them, and adopted the boundaries and stakes of the Winter location. He sank a discovery shaft to the depth of about twelve feet, and at the alleged point of discovery posted his location stake, and in due time filed for record his location certificate, in which, as we read it, the discovery is designated as in the discovery shaft.
At the trial, plaintiffs admitted that this discovery shaft did not disclose a well defined crevice. On the contrary, they conceded that it had not passed through the wash and debris usually encountered upon Breece Hill in the Leadville mining district. Notwithstanding that no discovery was in fact made in the discovery shaft, and the further fact that the [41]*41location, as made, was based upon such alleged discovery, plaintiffs contend that since their grantor, the locator, at the time he sought to appropriate the ground as the Eulalia lode, knew of the existence of a vein within the limits of that claim as surveyed— but several hundred feet distant from the discovery shaft of the Eulalia — which he, together with his co-owners of the Pocket Liner lode, had previously discovered in the process of its development, this knowledge was equivalent to an actual discovery by him of a vein within the Eulalia location.
That plaintiffs ’ contention may be correctly stated here, though it involves some repetition, we quote what their counsel said when asked by the trial court his purpose in offering proof of a former discovery and in the Pocket Liner lode:
“Mr. Eldeb: The proposition of the plaintiffs is simply this: That Mr. McMillen, as an owner and a locator of the Eulalia lode, knew at the time he placed his stake upon the Eulalia claim on the 30th of May, 1893, that he in company with the co-owners of the Pocket Liner claim, had discovered ore in the shaft of the Pocket Liner claim; that at the moment that he placed his stake upon that ground claiming the Eulalia claim as abandoned and unoccupied territory, that theretofore there had been a discovery of mineral within the requirements of the statutes of the United States, and of the state of Colorado, and that that knowledge within the mind of Mr. McMillen constituted a complete, final and perfect location of that mining claim, provided he did the other things requisite under the statutes of the state of Colorado, by sinking a discovery shaft ten feet in depth,” etc.
And again in the printed briefs counsel for appellants says:
[42]*42“We claim for appellants that the discovery made by one of them, Samuel McMillen, in the Pocket Liner shaft, while the same was being sunk in the years 1879 and 1880, formed a complete compliance and performance of one of the two prerequisites prescribed by the acts of Congress to vest in him the complete possessory title to the Eulalia lode mining claim, and that his entry upon the 30th of May, 1893, and distinctly marking the said claim on the ground and sinking a discovery shaft over a depth of ten feet, completed the other prerequiste to vest the title in him.”
That the rulings of the trial court may also correctly appear, we take the liberty of reproducing what the judge said in reply to an attempt on the part of plaintiffs to show a discovery made by them in performing assessment work and doing certain other work subsequent to filing their location certificate. “You can,” said the judge, “prove this, if possible, any discovery which you made on that ground. I care not where it is, or in what shaft it is ; if you have made a discovery, prove it. ’ ’ And again: “If in 1895, you made a discovery upon that ground, and you claim under that discovery, you may go to work and'prove your claim under that discovery.”
Prom the foregoing it is apparent that learned counsel for appellants (plaintiffs below) contends that mere knowledge by the Eulalia locator of the existence of a vein in the Pocket Liner made his location valid, provided he performed the other statutory acts of location aside from the actual discovery of mineral. ’
It has been held that it is not necessary that the locator of a mining claim should be the first discoverer of a vein or lode in order to make a valid location. If it appear that the locator knew at the time of making his location that there had been a discov[43]*43ery of a vein or lode within the limits of his location, he may base his location npon it, and thus avoid the necessity of making a discovery for himself. The following are some of the cases: Book v. Justice Mining Co., 58 Fed. 106, 108; Jupiter M. Co. v. Bodie Cons. M. Co., 11 Fed. 666; Conway et al. v. Hart, 129 Cal. 480; Hayes v. Lavagnino, 17 Utah 185; Wenner v. McNulty, 7 Mont. 30; O’Donnell v. Glenn, 8 Mont. 248; Nevada Sierra Oil Co. v. Home Oil Co. et al., 98 Fed. 673.
‘ But as stated by Judge Boss in the Oil Company case, supra, not only must the locator “have knowledge of the former discovery, but such actual discov--' ery must be adopted and claimed by him in order to give validity to his location.”' That is to say, the locator must claim and adopt such previous discovery as his own and base his location upon it.
In the O’Donnell case, supra, the supreme court of Montana, it is true, held that the locator was not confined to the nominal discovery shaft, but might select some other place within the limits of the location and show a valid discovery there.
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Chief Justice Campbell
delivered the opinion of the court.
This is an action brought by plaintiffs below as the owners of the Eulalia lode in support of an adverse claim filed by them in the United States land office against the application for patent by the defendant for the Golden Eod lode claim, situate in Leadville mining district. At the close of the trial the court ruled that under the pleadings and evidence plaintiffs had not made out their case, and after instructing the jury as to the essential requirements of a lode location said that if defendant had complied therewith á verdict should be returned for it. There was a verdict for the defendant, and from the judg[40]*40ment thereon entered plaintiffs have brought the case here by appeal.
A number of rulings of the district court have been attacked as erroneous and argued by counsel which, were appellants in a position to complain, would merit most careful consideration. But since we have reached the conclusion that the trial court was right when it instructed the jury that plaintiffs were not entitled to- recover, because they had not shown a valid discovery of mineral in their location, it follows that many of the rulings attacked, even if wrong, are not prejudicial to plaintiffs, and we, therefore, determine only that assignment relating to such discovery, as it is the only one of which they may complain.
1. The ground covered by the two claims is substantially identical. It was formerly included within the limits of the Winter lode, and a part of it was afterwards embraced within the exterior lines of the Pocket Liner lode. When, in 1893, plaintiffs’ grantor went upon the ground, both of these claims were abandoned, and he proceeded to relocate as an abandoned claim the territory theretofore covered by them, and adopted the boundaries and stakes of the Winter location. He sank a discovery shaft to the depth of about twelve feet, and at the alleged point of discovery posted his location stake, and in due time filed for record his location certificate, in which, as we read it, the discovery is designated as in the discovery shaft.
At the trial, plaintiffs admitted that this discovery shaft did not disclose a well defined crevice. On the contrary, they conceded that it had not passed through the wash and debris usually encountered upon Breece Hill in the Leadville mining district. Notwithstanding that no discovery was in fact made in the discovery shaft, and the further fact that the [41]*41location, as made, was based upon such alleged discovery, plaintiffs contend that since their grantor, the locator, at the time he sought to appropriate the ground as the Eulalia lode, knew of the existence of a vein within the limits of that claim as surveyed— but several hundred feet distant from the discovery shaft of the Eulalia — which he, together with his co-owners of the Pocket Liner lode, had previously discovered in the process of its development, this knowledge was equivalent to an actual discovery by him of a vein within the Eulalia location.
That plaintiffs ’ contention may be correctly stated here, though it involves some repetition, we quote what their counsel said when asked by the trial court his purpose in offering proof of a former discovery and in the Pocket Liner lode:
“Mr. Eldeb: The proposition of the plaintiffs is simply this: That Mr. McMillen, as an owner and a locator of the Eulalia lode, knew at the time he placed his stake upon the Eulalia claim on the 30th of May, 1893, that he in company with the co-owners of the Pocket Liner claim, had discovered ore in the shaft of the Pocket Liner claim; that at the moment that he placed his stake upon that ground claiming the Eulalia claim as abandoned and unoccupied territory, that theretofore there had been a discovery of mineral within the requirements of the statutes of the United States, and of the state of Colorado, and that that knowledge within the mind of Mr. McMillen constituted a complete, final and perfect location of that mining claim, provided he did the other things requisite under the statutes of the state of Colorado, by sinking a discovery shaft ten feet in depth,” etc.
And again in the printed briefs counsel for appellants says:
[42]*42“We claim for appellants that the discovery made by one of them, Samuel McMillen, in the Pocket Liner shaft, while the same was being sunk in the years 1879 and 1880, formed a complete compliance and performance of one of the two prerequisites prescribed by the acts of Congress to vest in him the complete possessory title to the Eulalia lode mining claim, and that his entry upon the 30th of May, 1893, and distinctly marking the said claim on the ground and sinking a discovery shaft over a depth of ten feet, completed the other prerequiste to vest the title in him.”
That the rulings of the trial court may also correctly appear, we take the liberty of reproducing what the judge said in reply to an attempt on the part of plaintiffs to show a discovery made by them in performing assessment work and doing certain other work subsequent to filing their location certificate. “You can,” said the judge, “prove this, if possible, any discovery which you made on that ground. I care not where it is, or in what shaft it is ; if you have made a discovery, prove it. ’ ’ And again: “If in 1895, you made a discovery upon that ground, and you claim under that discovery, you may go to work and'prove your claim under that discovery.”
Prom the foregoing it is apparent that learned counsel for appellants (plaintiffs below) contends that mere knowledge by the Eulalia locator of the existence of a vein in the Pocket Liner made his location valid, provided he performed the other statutory acts of location aside from the actual discovery of mineral. ’
It has been held that it is not necessary that the locator of a mining claim should be the first discoverer of a vein or lode in order to make a valid location. If it appear that the locator knew at the time of making his location that there had been a discov[43]*43ery of a vein or lode within the limits of his location, he may base his location npon it, and thus avoid the necessity of making a discovery for himself. The following are some of the cases: Book v. Justice Mining Co., 58 Fed. 106, 108; Jupiter M. Co. v. Bodie Cons. M. Co., 11 Fed. 666; Conway et al. v. Hart, 129 Cal. 480; Hayes v. Lavagnino, 17 Utah 185; Wenner v. McNulty, 7 Mont. 30; O’Donnell v. Glenn, 8 Mont. 248; Nevada Sierra Oil Co. v. Home Oil Co. et al., 98 Fed. 673.
‘ But as stated by Judge Boss in the Oil Company case, supra, not only must the locator “have knowledge of the former discovery, but such actual discov--' ery must be adopted and claimed by him in order to give validity to his location.”' That is to say, the locator must claim and adopt such previous discovery as his own and base his location upon it.
In the O’Donnell case, supra, the supreme court of Montana, it is true, held that the locator was not confined to the nominal discovery shaft, but might select some other place within the limits of the location and show a valid discovery there. But that decision, as the opinion clearly shows, was based upon section 2320 of the Revised Statutes of the United States, which merely provides that “no location of a mining claim shall be made until.the discovery of the vein or lode within the limits of the claim located, ” and the supreme court of Montana aptly observed that there is no provision for a discovery shaft in the federal statute or any statute of Montana. The court further said that the fundamental mistake in the argument of counsel that a locator was not permitted to select at will any shaft besides the nominal discovery shaft, was ‘ ‘ that it assumes that a notice on the ground, at the point of discovery, is necessary when it is not required by law. ”
Obviously, had there been in Montana, as there [44]*44is in Colorado, a statute ’which.' specifically declares that the locator shall sink a discovery shaft to the depth of at least ten feet, showing a well defined crevice, and shall also post at the point of discovery a location stake, the decision there would have been otherwise. And, whatever our views might be when the question is presented, it is a fair inference from the opinion in that case that where, in states that have provisions'for discovery shafts and posting of notices on the ground, like our statute, the locator himself selects the discovery shaft as the one in which the discovéry of mineral has been made, and there posts his location stake, and bases his location upon such discovery, he may not, after intervening rights have' attached, abandon and disregard the same, neglect to comply with such provisions, and select another discovery upon which his location was not predicated.
Now, when tender of proof was made by plaintiffs’ counsel of the former discovery, there was no offer to show that it was claimed by their locator or adopted by him as the one on which the Eulalia location was made. For this reason alone the court was justified in refusing to hear the proof offered, for it did not meet the requirements of the decisions in which the doctrine is laid down that a former discovery may be the basis of a valid location.
It is true that in tendering instructions, plaintiffs submitted one which contained the element of an adoption by the relocator of a former discovery as the one upon which his own location was based. There was no error by the trial court, however, in refusing to give this instruction, because there was no evidence, or offer of evidence, by plaintiffs that called for it. The fact that plaintiffs ’ grantor knew and claimed that there had been a former discovery is not equivalent to, nor does it supply the place of, [45]*45its selection by him as the one on which his location is based, particularly in the light of the declaration in the location certificate that the discovery of the Eulalia location was made in a discovery shaft in no way connected with, and some hundred feet- distant from, the place where the former discovery .is said to have been made. It follows from what we have said that plaintiffs have not brought themselves within the doctrine they contend for, and are not in a position to invoke its application to their case as made.
2. There is another reason for - holding that plaintiffs may not avail themselves of that rulé. It appears that they not only do not question the .validity of our state statutes which prescribe certain acts as necessary to a valid location, but in their complaint they aver that, in the location of the Eulalia lode, the provisions of the state, as well as of the federal, statutes were complied with; and among the instructions which they themselves asked the court to- give was one — applicable both to their own and the Golden Rod location — in which was the declaration that, as provided by section 3152 Mills’ Ann. Stats., a valid location of a lode mining claim cannot be made unless the locator sinks a discovery shaft upon the lode discovered to a depth of at least.ten feet from the lowest part of the rim of such shaft at the surface, or deeper if necessary to show a well-defined crevice, and unless he posts at the point of discovery on the surface a location stake containing certain designated things.
Such being true, plaintiffs certainly cannot now be heard to say- that they may at their will disregard these mandatory provisions of state legislation which they themselves have invoked, for, if we assume their validity (which plaintiffs themselves do not quéstion, and which they declare they have complied with), the [46]*46discovery shaft must expose the vein upon which the location of the Eulalia lode was based, or at least one- vein, and a discovery elsewhere within the limits of the claim will not supply its place. — Beals v. Cone, 27 Colo. 473, 499.
Lindley on Mines at section 250 (15) says that state courts have uniformly enforced provisions like those of ours concerning discovery shafts and posting of notices, notwithstanding doubts by the Interior Department as to their validity. See, also, Van Zandt v. Argentine M. Co., 8 Fed. Rep. 725; Ibid, 122 U. S. 478; and Morrison’s Mining Rights (9th ed.) 29. But, as already shown, plaintiffs are not questioning their binding force and are not in a position to do so.
3. From what has already been stated, it is clear that the trial court did not preclude plaintiffs from showing, a valid discovery of mineral within the limits of the Eulalia location before the rights of defendant attached, though from a superficial examination of the record the contrary might appear. The assertion that defendant has failed to establish a valid location is not borne out by the evidence. Defendant’s proof in that behalf is amply sufficient to show a valid location, assuming, as the record justifies, that plaintiffs’ location was invalid.
We feel it to be our duty not to. close this opinion without expressing our disapproval of the severe strictures made by counsel for appellants upon the rulings of the trial court. Doubtless he sincerely believed that injustice had been done his clients, but sarcastic references to the trial judge and invective employed against him do not aid appellate courts in determining legal controversies.
A careful examination of this record satisfies us that no error was committed by the trial court of [47]*47which appellants may complain. The judgment should, therefore, be affirmed, and it is so ordered.
Affirmed.