(Concurring.)
I concur in the conclusion reached in the opinion this day filed. The Merry Christmas location, upon the facts, falls clearly within the rule that a junior locator can not enter and initiate a valid location upon mining ground in the occupancy of and during the time allowed a prior discoverer to complete his location. The conclusion is predicated in the opinion upon a discussion of the notices posted at the shaft house of the old Little Joe, and, in my opinion, those notices should be construed in their true light in order that it may be made plain and thus avoid any error that parties might fall into by reason of any inference that might be drawn from the opinion based upon the facts as therein stated. The posting of the notices at the shaft house of the old Little Joe, in my judgment, was not, upon the facts, a compliance with the statute, even if they were intended as the statutory notice required to be posted at the point of discovery as preliminary to the filing of the certificate of location. (Sec. 2548, R. S. 1899; pages 34 and 36, Morrison’s Min. Rights, (13th Ed.).) Neither of the locators based their location on or adopted that discovery, *277(McMillan v. Ferrum Min. Co., 32 Colo. 38, 105 Am. St. Rep. 64, 74 Pac. 462; Strepy v. Stark, 7 Colo. 618; Cheeseman v. Shrieve, 40 Fed. 718, 17 M. Rep. 260) or designated it as such in their recorded certificate. The discovery shafts were sunk, one 30 and the other 60 feet away from the place where and after the notices were both posted.
The notices designated the discovered vein, but I do not agree that they designated the location of that vein. , The evidence shows that discovery was made in each shaft, ihe one in the shaft of the new Little Joe being prior in point of time. As I read the recorded certificate of that location it was based upon discovery in the shaft sunk by Woodruff. It is too well settled to need discussion, that without such discovery the location would be invalid. The nature of the notices must be determined in the light of the conditions existing at the time of posting, i agree that the contents of such notices should be liberally construed, and I think, upon the facts, the notices here so construed In connection with the place where they were posted, fails to bring them within the provision of the statute. A strict construction as to their contents would render them void for any purpose. Mr. Morrison says, at page 34 (13th Hd.) of his work on Mining Rights, that “As soon as a vein is found by a prospector it is the custom to place at the point of discovery a notice,” and gives a form of such a notice, and further on says, “This is not the notice when the location is made,” and cites Frhardt v. Boaro in support of this proposition. In that case the notice was posted on an outcrop, which point was selected for making the excavation required by the statute, and the contents of the notice was held sufficient to protect the discoverers in' making their location. The parties here were not locators at the time of posting their notices. The ground had not been located by them. Their attitude toward the ground was that of discoverers. They could proceed to locate the ground or not. Taking discovery as the starting point, it must be followed by appropriation. The two together constitute the source of title to a mining claim. The *278statute does not require a notice to be posted at the time of finding the vein. At the time the notices were posted they had no moré force and effect than to warn others, that those whose signatures were affixed thereto had acquired a prior right to locate on the vein. Under the statute, Hunter and Woodruff then acted as discoverers. The statutory notice is required to contain the name of “the discoverer and locator.” (Sec. 2548, R. S. 1899.) The discoverer must have changed his attitude toward the ground at the time of posting the statutory notice, for he must then- be a locator as well as a discoverer. . It is said in Treasury Tun. Min. Co. v. Boss, 32 Colo. 27, 74 Pac. 888, 105 Am. St. Rep. 60, that “One object of the requirement that the discoverer shall, before filing his location certificate, post at the point of discovery a notice, is that those wishing to make subsequent locations may he advised of the ground already appropriated and this serves to hold the ground until his location is perfected within the statutory period,” and also “that when filed in the proper office, the certificate takes the place of the notice on the ground,” for the reason that the certificate contains, in addition to other data, precisely the same things which the posted notice is required to contain. The dissimilarity between the notices here posted at the old shaft house and the certificate required by the statute is apparent, for the latter is required to state “the length of the claim along the vein, measured each way from the center of the discovery shaft.” The discovery shaft of the new Tittle Joe is separate and distinct from the old shaft. For 'the reason that the certificate of location of the original Tittle Joe failed to state the length of the claim each way from the discovery shaft, this court ■ held' it to be void, in Slothower v. Hunter. The statutory notice is required to be placed on the surface at the point of discovery to designate the location, and I think that the word designate, as thus used, means more than the claim of right to locate upon the discovered vein. There can be no point of discoveiy until discovery has been made. *279One may discover or find a mineral vein, but that does not •of itself constitute discovery within the meaning of the law, for discovery includes the elements of geological formation, value and character of the vein matter. Under all the decisions upon a statute similar to ours, that point where the discovery is made by means of a shaft or its equivalent ■must necessarily be designated in the location certificate, •and is the point upon the surface above the exposure of the •crevice or lead matter in the discovery shaft or excavation, •and which exposure must be at least ten feet below the lowest part of the rim rock. It is this exposure of the vein upon which the location is based. (Beals v. Cone, 27 Colo. 473, 83 Am. St. 92, 62 Pac. 948.) It is the initial point of the completed location, and I am of the opinion that the posting of the statutory notice at that point is what the statute intended in order to designate such location.' This hás long been the rule, supported by an unbroken line of decisions in Colorado, upon a statute ■almost identical with our own. It seems to have resulted in no hardship, nor has it caused any great amount of misunderstanding among the miners as to the method of protecting their rights. It is a simple method. It consists merely of a posting of the statutory notice at the place selected by the- locator for sinking on the discovery vein. The failure to post such statutory notice at the discovery shaft of the new Little Joe did not, however, ■invalidate that location, for the certificate was filed fpr record in the absence of any intervening right, and the record thus became notice to the world of what ground had heen appropriated and segregated from the public domain. (Treasury Tun. Min. Co. v. Boss, supra.)
The dismissal of the consideration of this question upon the ground that both parties posted their notices at practically the same point seems to me not only misleading, but in effect carries the idea that it is within the power •of the discoverer to disregard this mandatory provision •of the statute in making his location. I am of the opinion That the question is here for consideration. It was in *280issue upon the pleadings, and the parties respectively here urge, upon the evidence, that in so far as it affects their title the notices were sufficient in form and sufficiently posted. Because they have limited their arguments to the question as to whether the posting upon the ridge pole of the paper notice of the Little Joe was a sufficient posting, does not exclude this court from, but rather impels, a consideration as to whether it was a sufficient posting under the statute. As both parties claim a compliance with the statute in posting their notices, and all of the notices were posted at the old shaft house, the consideration of the sufficiency of the posting of one notice necessarily calls for the consideration of the sufficiency of the posting of all. The parties have elected to treat their notices as the notices required by the statute, and the statute provides for posting-no notice other than the one to be posted at the point of discovery prior to the filing of the certificate of location for record. It is true that„the statute gives the discoverer of a vein 60 days within which to sink his discovery shaft and the same time within which to properly designate his claim and record his certificate. Conditions might arise whereby this grant of possession or right of possession would terminate before as well as after the expiration Of such period.
I express no opinion as to the effect of recording the amended certificate on January 9, 1907. We are agreed that Woodruff’s location of the new Little Joe was a valid location. For the reasons stated in the opinion, the pos-sessory title was thereby vested in him for the benefit of the locators of the original Little Joe. By their deed, in which Woodruff joined as grantor, and their grantee's deed, the defendant in error became vested with the right of possession to the ground in dispute subject to the paramount title of the United States.