Mr. Justice Helm
delivered the opinion of the court:
It is necessary to consider but two questions in determining the present appeal, viz.: First, Was the [413]*413judgment of June 13, 1902, rendered in the action between the Gridley and Overlook lode claims res judicata of this controversy?' Second, If not, was the judgment of nonsuit entered in the court below warranted by the evidence introduced and condition of the record otherwise, when appellants rested their case?
The Gridley-Overlook judgment was set forth with sufficient fullness in the answer, and its existence as pleaded was admitted by the replication. The trial court was, therefore-, justified in taking cognizance thereof, although it was not formally offered in evidence.
That judgment was rendered in an adverse suit ' brought on behalf of the Gridley claim; a small portion of the south end of this claim being included within the Overlook junior location and subsequent survey for patent. Neither the Last Chance nor the ' St. Louis location was in any manner involved in that litigation. The latter claim could not have been so involved, for, as a matter of fact, it was not then discovered or located. Moreover, the territory in controversy in the present action, being- a portion of the north end of the Gridley, was several hundred feet distant from the nearest part of the conflict ground in the Overlook-Gridley litigation. So that the two controversies involve mainly different mining locations, and relate to wholly different and distinct territory. The only identity existing between the two causes is that of the parties; and even in this particular, two of the present appellants participate in such‘identity solely as privies, having taken title to their respective interests in the St. Louis lode after the Overlook-Gridley action was finally determined.
There was, therefore, no identity between the . two suits as to the subject-matter in controversy or [414]*414the causes of action or the issues involved. But the law is, that unless the issues in two suits be identical, the judgment in the earlier suit cannot be relied on as res judicata in the later suit. — 24 Am. & Eng. Enc. Law 780, and cases.
The second question above suggested rests primarily upon a proposition of law, viz.: Was the St. Louis a valid location? It was stipulated at the trial that all of the. physical acts necessary were performed in making this location. The proofs show the performance of the requisite annual assessment work subsequent to such location. And the above question, therefore, resolves itself into the inquiry: Was that portion of the ground within the St. Louis boundaries which is involved in the present, contro-' versy and which is also within the Gridley surface lines, a part of the public domain at the time the St. Louis location was made? If it was not, not only did the St. Louis acquire no interest in the conflict ground, but its entire location was invalid, as the discovery cut is on this conflict ground. The answer to this inquiry requires a discussion of the status of the Last Chance location in relation to the Gridley location, as the two conflicted, and it is such conflict territory to which the St. Louis now lays claim.
The relative positions of the four mining locations above referred to, and of the conflict territory to which the two controversies relate, will be seen by inspection of the following plat introduced in evidence, such conflict territory being represented by the shaded portions thereof:
[415]
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Mr. Justice Helm
delivered the opinion of the court:
It is necessary to consider but two questions in determining the present appeal, viz.: First, Was the [413]*413judgment of June 13, 1902, rendered in the action between the Gridley and Overlook lode claims res judicata of this controversy?' Second, If not, was the judgment of nonsuit entered in the court below warranted by the evidence introduced and condition of the record otherwise, when appellants rested their case?
The Gridley-Overlook judgment was set forth with sufficient fullness in the answer, and its existence as pleaded was admitted by the replication. The trial court was, therefore-, justified in taking cognizance thereof, although it was not formally offered in evidence.
That judgment was rendered in an adverse suit ' brought on behalf of the Gridley claim; a small portion of the south end of this claim being included within the Overlook junior location and subsequent survey for patent. Neither the Last Chance nor the ' St. Louis location was in any manner involved in that litigation. The latter claim could not have been so involved, for, as a matter of fact, it was not then discovered or located. Moreover, the territory in controversy in the present action, being- a portion of the north end of the Gridley, was several hundred feet distant from the nearest part of the conflict ground in the Overlook-Gridley litigation. So that the two controversies involve mainly different mining locations, and relate to wholly different and distinct territory. The only identity existing between the two causes is that of the parties; and even in this particular, two of the present appellants participate in such‘identity solely as privies, having taken title to their respective interests in the St. Louis lode after the Overlook-Gridley action was finally determined.
There was, therefore, no identity between the . two suits as to the subject-matter in controversy or [414]*414the causes of action or the issues involved. But the law is, that unless the issues in two suits be identical, the judgment in the earlier suit cannot be relied on as res judicata in the later suit. — 24 Am. & Eng. Enc. Law 780, and cases.
The second question above suggested rests primarily upon a proposition of law, viz.: Was the St. Louis a valid location? It was stipulated at the trial that all of the. physical acts necessary were performed in making this location. The proofs show the performance of the requisite annual assessment work subsequent to such location. And the above question, therefore, resolves itself into the inquiry: Was that portion of the ground within the St. Louis boundaries which is involved in the present, contro-' versy and which is also within the Gridley surface lines, a part of the public domain at the time the St. Louis location was made? If it was not, not only did the St. Louis acquire no interest in the conflict ground, but its entire location was invalid, as the discovery cut is on this conflict ground. The answer to this inquiry requires a discussion of the status of the Last Chance location in relation to the Gridley location, as the two conflicted, and it is such conflict territory to which the St. Louis now lays claim.
The relative positions of the four mining locations above referred to, and of the conflict territory to which the two controversies relate, will be seen by inspection of the following plat introduced in evidence, such conflict territory being represented by the shaded portions thereof:
[415]*415
It is stipulated that all of the requisite physical acts were also performed in connection with the location of the Last Chance and Gridley claims. But under the evidence it appears without controversy that the Last Chance location preceded the Gridley location; the discovery of mineral and erection of the discovery stake and notice upon the former being made in the forenoon and upon the latter in the afternoon of the same day; the various other acts requisite to a valid location being performed first upon the Last Chance, and afterwards upon the Gridley. The Last Chance was the senior and the Grid-: ley - the junior location. It follows, therefore, that the conflict territory between these two locations belonged to the Last Chance and not to the Gridley. This' territory was segregated as effectively from the public domain, by> the Last Chance location, as if the Gridley location had been made a month or a [416]*416year afterward. Nor is this conclusion in any manner changed or modified by the fact that the same parties made both locations.
The foregoing legal proposition is so familiar and so well established that the citation of authorities thereto is unnecessary.
So long as the Last Chance claim was not forfeited by abandonment or otherwise, the conflict territory between it and the Gridley claim was not subject to relocation by any one. But upon such abandonment, this ground would revert to the public domain; for, although within the surface boundaries of the Gridley, it would not become an integral part of that claim. It would be subject to relocation by appellee or by another. Appellee might avoid the effect of such abandonment by itself re-entering without force upon the Last Chance and resuming work thereon before a third party acquired rights therein; or appellee might make the conflict territory a part of the Gridley claim by filing an additional or amended location certificate, as prescribed by statute; or, finally, appellee might secure ownership of this conflict territory, as well as of other parts of the abandoned Last Chance, by initiating an entirely new location before intervening rights were acquired through-similar steps by a third party. But, failing to act promptly and avail itself of one of these privileges, appellee would lose all right to the ground upon the perfecting of a location thereof by another party.— 1 Lindley on Mines (2d ed.), § 363; Johnson v. Young, 18 Colo. 625; Belk v. Meagher, 104 U. S. 285; Oschamp v. Crystal R. M. Co,, 58 Fed. 295.
The evidence before the court when the motion for a nonsuit was granted in the case at bar tended to show that the Last Chance location was forfeited or abandoned by failure to perform the annual assessment work upon the same for the year 1901. [417]*417Nothing was then in the record showing or tending to show a relocation of this conflict ground by appellee, or any attempt through the filing of an additional location certificate to incorporate the same into the overlapping Gridley location; nor did there appear to have been a re-entry and resumption of work thereon by. appellee after the abandonment took place. Therefore, according to the record, as made when the nonsuit was granted and the judgment entered, the conflict territory in question had become a part of the public domain, and the relocation thereof by appellant Moorhead as the St. Louis claim was valid.
Of course we cannot conjecture what would have happened had the motion for a nonsuit been overruled and had appellee offered evidence in its own behalf. But it .clearly follows, from the foregoing-discussion and conclusions, that there was sufficient in the record to put appellee upon its proofs and to require submission of the cause to the jury. The judgment must be reversed. Reversed.
Chief Justice Steele and Mr. Justice Maxwell concur.