Chrisman

I dissent from the order denying a rehearing of this cause. There can be no location of a mining claim before discovery, and there can be no transfer or assignment of a location before the location is complete. There can, in other words, be no assignment of the right to locate. If, in the expectation of discovery, an association of persons marks the boundary of a placer claim containing twenty acres for each associate, I have no doubt that they will be protected in their possession while they proceed with reasonable diligence to prospect the claim, and that by a discovery they will perfect it; but if some of the associates withdraw before discovery or attempt to assign their claims to those who continue the work of development, those who remain will have no right to a claim greater in the aggregate than they could have taken by an original location.

This action is to quiet title to the northeast quarter of section 20, township 19 south, range 15 east,. Mount Diablo base and meridian, in the county of Fresno,, state of California. All parties claim by virtue of locations-made under the mineral laws of the United States.

It is admitted that in the year 1895 the land in controversy was a part of the public domain of the United States, and open to exploration under its mineral laws. Upon the fourteenth day of June, 1895, one A. Barieau, on behalf of himself and seven others, as associates, went upon the land and posted a location notice. Nothing further was done until the month of January following, when Barieau entered upon the land with a surveyor and marked the boundaries of the location upon the ground. Upon the twenty-fourth day of December, 1896, the interests of Barieau’s seven associates passed to E. 0. Miller, plaintiff herein, by mesne conveyance. Thereafter, on the 31st of December, 1896, Miller executed a purported abandonment and relinquishment of his right, title, and interest to the land in controversy to the United States, and on the same day made a location on behalf of himself and seven associates. Upon January…