Concurring. — I concur in the conclusion reached and fully indorse what is said by Mr. Lindley in volume 1 (second edition), section 336. This court in Burke v. McDonald, 3 Idaho, 296, 29 Pac. 98, did not say, nor intend to convey the idea, that a valid mining claim could be made upon alluvial soil not containing a vein or lode, or upon loose slide rock or debris on the mountainside, simply because the locator was “willing” to spend his time and money in prospecting it with the expectation of finding a lode or vein of mineral-bearing rock. In that case the court said: “And a valid location of a mining claim may be made of a ledge deep in the ground) and appearing at the surface, not in the shape of ore, but in vein matter only.” The terms “vein” and “lode” have been so often defined by the courts of the United States, that it is unnecessary for me to cite many *122authorities as to the well-known, established and accepted meaning of those terms. Many of the decisions defining those terms are collected in volume 5 of Words and Phrases Judicially Defined, under the word “lode,” page 4423. Justice Field in the case of Eureka Consolidated Min. Co. v. Richmond Min. Co., 4 Saw. 302, Fed. Cas. No. 4548, defines a “lode” to be “a zone or belt of mineralized rock, and lying within boundaries clearly separating it from the neighboring rock.” In Book v. Justice Min. Co., 58 Fed. 106, it is said, the word “lode” as used in the United States statutes, and as understood by miners, is applicable to any body or belt of mineralized rock lying within clearly defined boundaries separating it from the country or nonmineral rock. If in a certain district the country rock is limestone, and veins or lodes of mineral are found in such country rock, the Revised Statutes of the United States and of the state of Idaho, in regard to the location of quartz claims, do not contemplate that a valid location can be made upon such limestone without first having discovered some vein or lode within such country rock. It is shown in the record in this ease that many of the most important mines of Shoshone county are found in quartzite, that being the country rock of that region, -that contains traces of mineral. It is clear to me that simply because veins or lodes of mineral-bearing matter are found within such quartzite or country rock, a valid location cannot be made on the quartzite without first having discovered some vein or lode therein. Section 2320 of the Revised Statutes of the United States clearly contemplates that quartz mim ing claims can only be located upon veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar or other metals of value. Said section is as follows: “Mining claims upon veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, heretofore located, shall be governed as to length along the vein or lode by the customs, regulations, and' laws in force at .the date of their location. A mining claim located after the tenth day of May, 1872, whether located by one or *123more persons, may equal, but shall not exceed, fifteen hundred feet in length along the vein or lode; but no location of a mining claim shall be made until the discovery of the vein or lode within the limits .of the claim located. No claim shall extend more than three hundred feet on each side of the middle of the vein at the surface, nor shall any claim be limited by any mining regulation to less than twenty-five feet on each side of the middle of the vein at the surface, except where adverse rights existing on the tenth day of May, 1872, render such limitation necessary. The end lines of each claim shall be parallel to each other.”
That section contemplates that the vein or lode must be first discovered before a valid location can be made. It provides, inter alia, that no claim shall extend more than three hundred feet on each side of the middle of the vein or lode, and as the law contemplates that boundaries of the claim must be marked upon the gróund, how could they be marked upon the ground without having first discovered the vein or lode, in order to ascertain the distance of three hundred feet on each side of the center thereof? Section 3100 of the Revised Statutes of Idaho, as amended by the Laws of 1899, page 367, is as follows: “Mining claims hereafter located upon veins or lodes of quartz, or other rock in place bearing any of the metals, or other valuable deposits mentioned in section 2320 of the Revised Statutes of the United States, may extend to three hundred feet on each side of the middle of the vein or lode; provided, that when the locators have set the stakes, posts or monuments described in the next section, to indicate the line of the vein, ledge or lode, such stakes, posts or monuments must be taken for the purposes of said location, to mark correctly the line thereof, and such line must not be afterward changed so as to affect rights acquired or interfere with any location made subsequent thereto.” That section provides that the location may extend three hundred feet on each side of the middle of the vein or lode, and it contemplates that the locator shall mark the same with posts or monuments to indicate *124the line of thé vein, ledge or lode. Section 3101 of the Revised Statutes, as amended, provides that the locator at the time of making the discovery of such vein or lode must erect a monument at such place of discovery, and within three days after making the discovery must mark the boundaries of his claim. The law clearly contemplates that the discovery of a vein or lode must be made before a valid location can be made thereon; simply because the country rock of a certain district is porphyry or granite or limestone or quartzite, and that veins carrying any of the precious metals have been discovered therein, the law does not contemplate that a valid quartz claim location can be made upon such porphyry or other country rock. Had Congress intended that a valid quartz claim location could have been made on any ground where the locator was “willing” to expend his time and money in prospecting for a vein or lode, it certainly would have used different language from that used in section 2320 of the Revised Statutes of the United States. To hold that valid location of a quartz claim may be made upon porphyry or limestone, that being the country rock in which valuable mines have been discovered, would be in direct violation of the provisions of said section. If the prospector discovers “float” on the mountainside, which is covered with loose slide rock and debris or soil, he could not make a valid location thereon until he had discovered a vein or lode “of quartz or other rock in place bearing some valuable deposit,” even though he were “willing” to spend his time and money trying to discover a vein or lode. The “discovery” must be made before location can be made.
In Migeon v. Montana Cent. Ry. Co., 77 Fed. 249, 23 C. C. A. 156, Judge Hawley, who has written many of the most important mining decisions on the Pacific slope, referring to the case of Book v. Justice Min. Co., 58 Fed. 106, said: “The liberal rules therein announced are substantially to the effect that when a locator of a mining claim finds rock in place [observe the words “finds rock in *125place”; not “hopes” to find rock in place or is willing to try to find rock in place] containing mineral in certain quantity to justify him in expending his time and money in prospecting and developing a claim, he has made a discovery within the meaning of the statute, whether the rock or earth is rich or poor.” There the term “rock in place” is used, the identical expression used in section 2320 of the Revised Statutes of the United States, thus clearly holding that something more permanent must be discovered than mere shale, slide rock or debris. Judge Hawley there states, “It was never intended that in such a case the court should weigh scales to determine the value of the mineral found as between a prior and a subsequent locator of a mining claim on the same lode.” That, no doubt, is true, but nearly all of the decisions emphasize the fact that a vein or lode of rock in place must first be discovered before a valid location can be made, and clearly indicate that a valid location cannot be made upon a “hope and desire” to discover by future developments.
"While in the opinion in this ease it is not intended to hold that a valid location could be made upon loose debris or slide rock without first discovering a lode or vein therein, I desire to emphasize my views upon that question as above set forth.