This is an action brougnt by the defendant in error to recover damages for trespass, and to quiet title to certain lode mining claims, known as the Duchess claims Nos. 1, 2, *2523 and 4, and for an injunction to restrain plaintiff in error from further trespassing- thereon. The case was tried to the court, without a jury, and judgment rendered in favor of defendant in error for $100 damages and costs, and enjoining- plaintiff in error from entering upon the surface of the claims Nos. 1, 3 and 4, or from in any manner trespassing thereon. (Claim No. 2 is not in issue here, as it is not mentioned in the judgment and seems not to have been relied upon in the reply filed, and in any event there is 'no appeal by defendant in error.)
The defendant in error claims to be the owner and entitled to the possession of said Duchess lode mining claims Nos. 1, 3 and 4, as grantee of A. L. McKircher and DeRoy Grant, who, it is alleged, discovered said claims July 17th, 1901, and subsequently completed their locations by marking the boundaries, sinking shafts and recording- location certificates as required by law. The plaintiff in error claims to own and to be entitled to the possession of a large part of the ground embraced within the limits of said Duchess claims, as grantee, through mesne conveyances, from J. J. Mackaj- and Thomas F. Gibbons, who, it is alleged, discovered and located the Anaconda, Victor and Victor No. 2 lode mining-claims. It is alleged that the Anaconda was discovered and located about July 31st, 1901, the Victor about July 24th, 1901, and the Victor No. 2 about September 13th, 1901. The said Duchess claims and these claims conflict. The plaintiff in error claims that the locations of the Duchess claims were ■ void: first, because no discovery of mineral in rock in place was made by McKircher and Grant, within the limits of said claims, on or before July 17th, 1901; second, because the notices posted on said claims did not comply with the requirements of law; third, because no vein or lode of mineral in rock in place was shown in the discovery shaft on either of said claims; and, fourth, because the certificates of location were not filed for record within sixty days after the alleged discovery and the posting of notices of discovery on the claims.
*253The question to be determined then is, were the locations of the Duchess claims as made by McKircher and Grant valid? If they were, then plaintiff in error was a trespasser, otherwise it was not. It may be well to state that in this action the parties cannot have a judicial determination of the question of which, if either, shall ultimately prevail in a contest for title. The right to the possession being the issue here, and neither party claiming to be entitled to a conveyance from the government. (Bevis v. Markland et al., 130 Fed., 226.) The statutes of the United States provide (Sec. 2320, R. S.) 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.” It is conceded that a discovery of mineral is a necessary prerequisite to the location of a mineral claim; but just what constitutes such a discovery is often a question. Many definitions of a discovery have been given by the courts, a few of which will suffice for the purposes of this case. Whether or not a discovery has been made is always a question of fact.
Mr. Lindley, in his work on the law of mines and mining rights, says: “Judge Hawley’s definition seems to answer all practical purposes: ‘When the locator finds rock in place containing mineral, he has made a discovery within the meaning of the statute, whether it assays high or low. It is the finding of the mineral in rock in place, as distinguished from float rock, that constitutes the discovery and warrants the prospector in making a location of a mining claim.’ (1st Bindley on Mines (2d Ed.), p. 610.) “A lode, within the meaning of the statute, is whatever the miner could follow, and find ore. Under the requirements of the law, a valid location of a mining claim may be made whenever the prospector has discovered such indications of mineral that he is willing to spend his time and money in following with the expectation of finding ore; 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.” (Burke et al. v. McDonald et al., 29 Pac., *25498; Book v. Justice Min. Co., 58 Fed., 106, and definitions quoted therein. See also Hyman v. Wheeler, 29 Fed., 347.)
In this case the evidence shows that McKircher and Grant were upon the ground in controversy on July 15th, 16th and 17th, 1901. There was also evidence tending to show that rock in place or “solid foundation,” as it was called by one witness; outcropped on the Duchess claims in places; that it was mineralized; that they found what they supposed to be a vein; that they did some work to determine where they should locate their discovery shafts; and Grant testifies that at the time the notices were posted on the claims, July 17th, that they discovered a vein or lode of mineral in place, and that the veins were apparent on the surface in places and could be traced on the surface in places by outcroppings. On the other hand, a number of witnesses testified as positively that there were no outcroppings; that a discovery would have been impossible, because the surface of the country was covered by a wash of loose rock and earth, and that rock in place could only be found by digging. Mr. Gibbons, one of the locators of the claims of plaintiff in error, testifies, tliat he located the Anaconda on July 31st, 1901, but had worked on it several days before; that the ground in that locality is covered with wash; that he saw a little quartz formation sticking around on the surface ; then he saw what was the country rock; and that he ran a trench about eighteen steps between these two until he came to the quartzite foot wall. He saw no evidence of work having been done on the Duchess claims, but did see a notice while he was at work, but did not read it.
This much of the substance of the testimony is stated for the purpose of showing the conflict in the evidence in relation to. a discovery by McKircher and Grant. The evidence is equally conflicting with reference to the existence of a' lode or vein in the discovery shafts on the Duchess claims.
It is claimed Ity plaintiff in error that the notices posted on the Duchess claims were insufficient and did' not comply with the requirements of Section 2546, Revised Statutes of *255Wyoming, 1899. Neither the notices nor copies of the same appear in the record. The contents of the notice on Duchess No. 1 as given by McKircher is as follows: “We, the undersigned, claim by right of discovery this ledge, lode, or deposit described as follows: Fifteen hundred feet in a northwesterly direction from this notice, and three hundred feet on each side of this vein. Dated this 17th day of July, A. D. 1901.” The witness then testifies that the others were in the same language, except the difference in direction from the notice, and that they were signed by “Mr. Grant and me.” Grant testifies on cross-examination that the notices contained the name of each lode. The evidence shows that they were posted July 17th, 1901. This evidence was not contradicted and no objection appears to have been made that it was incompetent, not being the best evidence. These notices substantially complied with the law. (Preston v. Hunter et al., 67 Fed., 996; Erhardt v. Boaro, 113 U. S., 527.)
Plaintiff in error also claims that the certificates of location of the Duchess claims were not filed within sixty days from the date of discovery and hence the locations were invalid. The date of discovery being stated as July 17th and the certificates being filed September 16th, sixty-one days after discovery. Counsel for defendant in error contends that as September 15th, 1901, was Sunday, it would be excluded under Section 3423' Revised Statutes of Wyoming, 1899. It was so held in David v. Whitehead, 79 Pac., 19.
In addition to this, there is nothing in the record showing that plaintiff in error acquired any rights between the expiration of the sixty days and September 16th. The trespass, if committed at all, was committed before September 15th, and plaintiff in error is here claiming under locations made within sixty days from July 17th. (Preston v. Hunter, 67 Fed., 996, and cases cited.)
As to the matter of damages, the court having found generally for defendant in error, the amount awarded had sufficient support in the evidence.
*256There is very little controversy between counsel as to the law of the case; but the argument has been on the one side that the judgment is not sustained by the evidence; and on the other that it is, and in any event, the evidence being conflicting this court should not set the judgment aside.
The case appears to have been carefully considered by the trial judge, whose opportunities for weighing the testimony were better than ours, and his judgment upon the conflicting evidence more likely to be right. In Overman Mining Co. v. Corcoran, 1 M. M. R., 691, Judge Hawley says : “Every lawyer at all familiar with the trial of mining cases where the question of existence, or non-existence, of a lode or vein is raised, understands the difficulty that is often, we might say always, encountered in the attempt to ascertain the facts. Practical miners, experts, and men of science are often examined as witnesses, and they frequently differ as much in their statements of facts as in their conclusions of judgment. It is especially the province of a jury to determine the disputed question of fact thus raised.”
In this case a careful consideration of all of the evidence discloses such a substantial conflict in the evidence upon the main issues that, under the well settled rule that unless the judgment is without support in, or is clearly against the weight of the evidence, it will not be set aside, the judgment of the District Court will have to be affirmed.
Affirmed.
Potter, J., concurs.