ON PETITION FOR REHEARING.
Per Curiam.The conclusion announced, that the plea of res judicata interposed by appellant was insufficient, and that the judgment pronounced by the Land Department in the protest proceedings therein referred to was not competent evidence, in no manner conflicts with the decision in German Insurance Company v. Hayden, 21 Colo. 127. In that case the right of the appellees to recover depended upon the fact that the insured was vested with the title in fee to the land upon which improvements destroyed by fire were situate. At the time the contract of insurance was entered into the assured had obtained a receiver’s receipt for these premises. Subsequently, and prior to the loss, this receipt was cancelled, and it was held that this action of the department was conclusive, that the character of title which the insured exacted should be vested in the insured, did not exist. In the case at bar the appellees, when their entry was cancelled, fell back upon the possessory rights initiated by the steps which they alleged had been taken in locating the premises in dispute. This they had a clear right to do, and therefore, in establishing the facts regarding these steps, they were not impeaching the judgment cancelling the receiver’s receipt.
Another important element necessary to constitute an estoppel in pais is, that the party to whom the statement was made which it is sought to make the basis of an estoppel, was ignorant of the truth of the facts to which such statement relates. Patterson v. Hitchcock, supra.
It does not appear from the plea interposed as an estoppel in pais, that appellant was ignorant on the subject of the existence or nonexistence of a vein in the Ophir shaft. The *495plea in question contains no direct averment upon this point, or any from which the inference could be fairly and reasonably deduced, that appellant had no knowledge as to what was or was not disclosed in the Ophir shaft, in the way of a vein. For this reason, it does not appear that he has been misled by the statements attributed to appellee Cone. For the same reason, it does not appear that the silence of Cone misled him to his injury.
For a better understanding of the reasons why the ruling of the trial court, in excluding appellant’s original certificate of location on the Tecumseh, was correct, the following facts should be borne in mind: The location of the Tecumseh under the discovery alleged to have been made on April 20,1894, was upon a discovery at an entirely different point from the discovery shaft upon which the original location was based. Under the new location a new discovery shaft was adopted. It became, in effect, an original location. The statute which permits amendatory or additional certificates to be ¿led provides that the filing of such a certificate shall not preclude the claimant under it from proving such title as he may have held under the original location certificate. Sec. 8160, Mills’ Ann. Stats. For this reason the original certificate may, under certain conditions, be admissible. Such conditions, however, do not exist in the case at bar. Prior to the discovery alleged to have been made upon which the second location is based, no right to the premises in dispute was vested in appellant, which entitled him to hold the ground as against third parties, because no discovery of mineral had been made before that time. A location without a discovery carries with it no rights. Upton v. Larkin, 6 Pac. Rep. 66. The acts to establish a location which appellant had performed prior to the discovery in April, 1894, would have taken effect, in so far as they could have been utilized, as of the date of such discovery. Erwin v. Perego, 93 Fed. Rep. 608. Appellant, however, did not rely upon any of these acts, but filed a new location certificate, including ground the boundaries of which were different from that described in the original certificate. *496This was a new location under a new and distinct discovery, and the act of filing a new certificate under this state of facts was a complete abandonment of all rights which may have attached to the steps taken under the original location. The appellees at all times relied upon a discovery claimed to have been made in the discovery shaft of the Ophir. Even if there was no mineral disclosed in this shaft at the time they filed their location certificate, the subsequent discovery which they claimed to have made in this shaft made this location valid, except as against intervening rights, from that date. Erwin v. Perego, supra. They never filed any other certificate, and the original certificate of the Ophir was, therefore, properly admitted.
On the trial below appellees offered in evidence samples of rock purporting to come from the discovery shaft of the Tecumseh, which they claimed did not contain mineral. In rebuttal, appellant produced a sample claimed to have been taken from a crevice in this shaft. This evidence was excluded on the ground that it was not rebuttal. “ Rebutting evidence is defined to be that which is given to explain, repel, counteract, or disprove facts given in evidence by the adverse party. It is a general rule that anything may be given as rebutting evidence which is a direct reply to that produced on the other side.” 19 Am. & Eng. Ency. Law, 1093. Appellant had offered evidence in chief tending to prove the existence of mineral in the discovery shaft of the Tecumseh. To meet this evidence appellees had introduced samples from this shaft. As against this evidence, the offer of appellant was not rebuttal. It was nothing more or less than evidence which would have tended to prove the existence of a vein in the Tecumseh shaft, and would properly have been admissible in chief, but was in no sense rebuttal, for it did not tend to prove that the samples received in evidence on behalf of appellees were, in fact, mineral bearing, or did not come from the Tecumseh.
In instructing the jury on the subject of marking the surface boundaries of a lode claim, the court, in instruction No. 17, *497inter alia, stated: “ Where in marking the surface boundaries of a claim, any one or more of such posts shall fall by right upon precipitous ground, where the proper placing of it is impracticable or dangerous to life or limb, it shall be legal and valid to place any such post at the nearest practicable point, suitably marked, to designate the proper place.”
Immediately following this instruction, and upon this subject, the court further stated:
“ 18. Upon that point the court instructs you that unless you find from the evidence, that the southwest corner of the Tecumseh claim fell upon precipitous.ground, and within the lines of the rails of the Florence & Cripple Creek Railroad, or so near to one or the other of them,-that the erection thereof would be interfered with by the passage of trains, and was, for that reason, impracticable, then you are instructed that it was the duty of the plaintiff to set his post at such corner. If, upon the other hand, you should believe that the proper place of such stake was within the lines of the rails of said road, then you are instructed that under the statute such witness corner shall be set at the nearest practicable point. Whether this was done, you are to determine, from the evidence in the case, and unless you should believe, in that event, that the said witness corner was set substantially at the nearest practicable point, the marking of said claim would be invalid.”
“ 19. In this connection the court instructs you that if you believe from the evidence that the southwest corner of the Tecumseh lode fell by right on the roadbed of the Florence & Cripple Creek Railroad, and that such point was precipitous ground, where the proper placing of such corner was impracticable, and that plaintiff placed such cornerstone at the nearest practicable point, suitably marked to designate the proper place, then such corner was sufficient and valid.”
It will be observed that these instructions follow each other; that 18 refers to the part of 17 above quoted, and that in 19 what is there stated on the subject is preceded by the statement “ in this connection,” so that while the instructions *498are numbered, they are so intimately connected and refer one to the other, that the jury must have understood that they were to be read as a whole. When so read, the thought expressed by the trial court is to the effect that appellant was not excused from placing the southwest corner post of the Tecumseh lode at its true point, unless it appeared from the evidence that such point fell where it was impracticable to maintain it.
Counsel for appellant contend that under instructions given and refused, the jury was precluded from considering the admitted fact, that veins were exposed in two different shafts upon the Tecumseh, designated 2 and 3. What we said in the original main opinion on this subject is withdrawn. In considering this question, these facts must be borne in mind: Whether or not a mineral bearing vein was disclosed in the discovery shaft upon which the present location of the Tecumseh is based, was controverted. No location was made upon either of the discoveries in shafts 2 and 3. The proposition of counsel for appellant is, that if a well defined crevice, although not bearing mineral in appreciable quantities, is exposed in the discovery shaft, the claimant may rely upon discoveries in other shafts within the boundaries of his claim, which disclose the mineral necessary to constitute technical veins.
No question is raised regarding the validity of our statute relative to the location of mining claims. In order that there may be no mistake as to the position of counsel on this subject, we quote from their original brief, as follows :
“ * * * If the discovery shaft contains a well defined crevice, thus giving all the appearance of a discovery, the claimant may rely upon other shafts within the boundaries of the claim for his discovery of the mineral necessary to constitute technical veins. The state statute does not provide what the well defined crevice shall contain, while the act of congress makes no provision as to what shaft the vein required shall be in. Reading and applying the two statutes together, we submit that the well defined crevice must be in *499the discovery shaft, and the mineral bearing vein may be found in some other shaft upon the claim.”
And also from their reply brief, in support of their petition for a rehearing, the following:
“We come now to the question as to whether the entire right to a claim, in so far as the same depends upon a discovery of a well defined crevice (as required by the State statute) and the discovery of a vein (as required by the act of congress) is wholly dependent upon the discovery shaft. * * * »
“We have not questioned the validity of our state statute. It is not necessarily, when properly construed, in conflict with the act of congress. Both the state statute and the act of congress can be given effect, and they should be so construed as to accomplish this. * * * ”
“We have not maintained that a discovery shaft can be altogether dispensed with. Neither have we maintained that when the state statute in regard to such crevice has not been literally complied with, we can go outside of the discovery shaft for the technical lode or vein, the discovery of which, within the limits of the claim, is required by the act of congress.”
The statute of this state, which designates what shall be disclosed in the discovery shaft, provides that it shall disclose a well defined crevice at the depth of at least ten feet from the lowest part of the rim of such shaft, at the surface. Sec. 3152, Mills’ Ann. Stats. It being conceded that the laws of this state relative to the requirements of a discovery shaft are valid, it appears to us that the proposition upon which counsel rely is not tenable. If, as stated, the state statute is legal, it necessarily follows that the discovery shaft must expose the vein upon which the location is based, or at least disclose one, and therefore the mere discovery of some other vein within the limits of the claim cannot supply the absence of the one required to be exposed in the discovery shaft. In other words, the proposition of counsel for appellant cannot be upheld, unless the state statute is de*500clared invalid, and the admission upon their part that it is not, relieves us from the necessity of determining the effect of discoveries in shafts 2 and 3 of the Tecumseh.
“ Crevice,” as employed in the statute relative to a discovery shaft, clearly means a mineral bearing vein. It was so held by this court in Bryan v. McCaig, 10 Colo. 309. The circuit court of the United States for the district of Colorado has adopted the same view. Van Zandt v. Argentine Co., 8 Fed. Rep. 725; Terrible Co. v. Argentine Co., 89 Fed. Rep. 583; Cheesman v. Shreeve, 40 Fed. Rep. 787.
Under these decisions, coupled with the admitted legality of the state statute, the fact that discoveries were made in shafts 2 and 3 upon which no locations were made, does not in any manner affect the validity of the Tecumseh.
It is asserted that the evidence is insufficient to establish the fact that the assessment for the year 1897 was performed on the Ophir. A witness on the part of appellees testified that he had extended a drift on the Ophir, on account of the assessment work for 1897, a distance of seven or eight feet; that this drift was worth $12 per foot. For this labor appellee appears to have paid the sum of $90. For additional work he paid for two days’ work at the rate of $4 per day, and later, for further work, $18. This, hi addition to paying for the powder, fuse, steel and candles that were used in working the assessment. There may have been some evidence to the effect that the work was not worth the amount paid, but this was a question for the jury to determine, and as it has been determined in favor of appellees, upon evidence sufficient to sustain it, the finding on this subject will not be disturbed.
On the subject of annual labor, the court, by instruction No. 24, directed the jury as follows: “ Upon this point the court further instructs you that the law does not presume a forfeiture by the failure to perform annual labor, and the plaintiff claiming that the Ophir lode became forfeited for such reason, the burden of proving that the annual labor was not done thereon, is on the plaintiff, and unless he has shown *501you, by a fair preponderance of the evidence, that the work was not done, you are to determine that question in favor of the defendants.”
The objection urged to this instruction is, that it cast a burden upon the appellant which he was not required to assume. The evidence tended to establish that a valid location of the premises in dispute had been made by appellees. This location was prior to the only one under which appellant can base any claim. The act of congress (sec. 2324, Rev. Stat. U. S.) provides that a failure to perform the necessary annual work shall render a claim open to relocation, provided the original locators have not resumed work upon the claim after failure and before relocation. The fair construction of this provision is, that as between the locator and the general government, the failure to do the annual assessment work does not result in a forfeiture. In other words —it is not necessary to perform the annual labor except to protect the rights of the locator against parties seeking to initiate title to the same premises. As against such subsequent location, a prima facie case is made on the part of the original locator by showing a valid location. Hammer v. Garfield M. Co., 130 U. S. 291.
To otherwise express our views, it might be said, that after a valid location, the title thus acquired remains so, whether the annual assessment work is performed or not, until forfeited or abandoned. Renshaw v. Switzer, 15 Mining Reporter, 345; 6 Mon. 464; 13 Pac. Rep. 127.
It is the location by the new claimant, and not the mere lapse of time which determines the right of the original locator. Little Gunnell G. M. Co. v. Kimber, 1 Morrison’s Mining Reports, 536.
So that a party seeking to initiate a claim to mining premises already legally located must prove that the annual labor thereon has not been performed, in order to establish that the ground so located is subject to location. In so far, then, as the rights of appellant depended upon the failure of appellees to perform the assessment work for 1897, it was en*502cumbent upon him to establish this fact by a fair preponderance of the evidence, or, as the court stated, the burden of proof was upon him to show that the work for 1897 was not, in fact, performed. Hall v. Kearny, 18 Colo. 505; Johnson v. Young, 18 Colo. 625; Hammer v Garfield M. Co., supra.
The petition for rehearing is denied.
Petition denied.