"From the judgment in favor of the defendants plaintiffs took this writ, assigning for error, inter alia, the rulings contained in the 2d, 3d, 4th, 5th, and 6th paragraphs of conclusions of law. The names of the counsel have not reached us.

"PER CURIAM. Filed October 6, 1879. We entirely concur in the conclusions of law of the learned judge below upon the facts as found by him and the judgment entered in favor of the defendants. Judgment affirmed."

STREPEY ET AL. V. STARK ET AL.

(7 Colorado 614; 5 Pac. 111. Supreme Court. October 31, 1884.)

An amended location certificate filed after suit brought is admissible in evidence.

'A location certificate is not titie nor proof of title, but contains a description of what ground is appropriated, becomes constructive notice of the locator's possession and is one of the steps necessary to make a perfect mining location.

There are four essentials to complete location: 1, the ten foot shaft; 2, the posted notice; 3, the surface staking and 4, the record of the location certificate.

'Such location certificate is prima facie proof of whatever the statute requires it to state but is not evidence of what is not required to set forth, e. g. the depth of the discovery shaft.

"The relocation certificate relates back and cures a void original certificate but will not in such case cut out an intervening valid location. In ejectment between possessory claims each party must rely on the strength of his own title: defects in the paper title of the party in possession are not material until the other party proves a valid location.

To constitute a valid possession of a mining claim neither residence nor continuous occupation are essential.

Remarks of Court to jury exhorting to an agreement on a third trial of the case considered and upheld.

Appeal from District Court of Chaffee County.

'Uinta Co. v. Creede Co. 119 Fed. 164.

'Cheesman v. Shreeve, 17 M. R. 260.

Relocation of abandoned ground does not relate back to or obtain any rights from the old location. Cheesman v. Shreeve, 17 M. R. 260.

An amended location relates back when the original record or location was only irregular and not void. Moyle v. Bullene, 7 Colo. App. 309; 44 Pac. 69. Instance of amendment upheld by relation to cure record otherwise void and cut out intervening claim. Frisholm v. Fitzgerald, 25 Colo. 290; 53 Pac. 1109. (This case has no binding authority, a majority of the Court not joining in it.)

The relocation cannot be permitted to cut out intervening overlaps. Jordan v. Schuerman (Ariz.), 53 Pac. 579.

The filing of an amended record is no proof that the original record was not valid. Id.

Amended location certificate relates back to original. Where one

HARTENSTEIN & SINDLINGER, for appellants.

RHETT & HOBSON, for appellees.

The facts are stated in the opinion.

STONE, J. This is a contest between two sets of claimants for the possession of a certain mining claim, which appellees claim as the "Little Bell" lode, and appellants as the "Negro" lode. Appellees-the plaintiffs below-alleged right of possession by virtue of discovery, prior possession, location, and compliance with the mining laws relating thereto. Appellants as defendants merely denied in their answer the several allegations of the plaintiffs' complaint. The ground of defense upon the trial was chiefly that appellees had failed to comply with the laws, in not doing sufficient work on the claim, previous to appellants' possession, to entitle them to hold it. Appellees established their discovery of mineral on the ground, as original locators, in June, 1879, and their witnesses testified that a discovery shaft was sunk that year to a depth of over 10 feet; that a location was made, in accordance with law, in July, and a certificate thereof filed in September of that year; that when they went to resume work on the mine the next year, appellants were in possession. The testimony of appellants was that they first came upon the ground in June, 1880, and found a small cut or excavation, not more than four or five feet deep, exposing a little mineral, and that the only stake they found was an old one at this excavation, containing the name of one of the appellees and the

holds in trust for co-tenants his amended record is for benefit of all. Hallack v. Traber, 23 Colo. 14.

When the ground has been held for the full period of the Statute of Limitations the location Certificate is evidence of regular location. Harris v. Equator Co., 12 M. R. 178.

The same ruling where possession had been held for years and the property passed into parties strangers to the location. Cheesman v. Hart, 16 M. R. 263.

date, 1875; that they went to work in the same excavation, and sunk to the depth of about 15 feet, took out mineral, and located the claim by the name of the Negro lode, and filed location certificate in August following. The ground claimed by each side is shown to be, practically, if not identically, the same, and the appellants seem to have claimed and located, or rather, relocated, the mine, and asserted right thereto, on the ground that the discoverers and former occupants had failed to comply with the law in respect to the necessary work and staking, and had, therefore, either abandoned the claim or forfeited their right thereto, if they ever had acquired any right at all. The verdict and judgment below were in favor of the plaintiffs, upon the third trial of the case, and appellants seek to have the judgment reversed because the verdict, as they allege, is contrary to the weight of the evidence; that improper evidence was admitted on the trial; that proper instructions prayed were erroneously refused by the court; and that the jury were improperly influenced by remarks made by the judge, pending their deliberations, for the purpose of inducing them to agree upon a verdict.

Upon the matter of the admission of evidence which is assigned for error, the principal objection, as argued by counsel for appellants, appears to be made to the admission of appellees' amended certificate of location. Both parties had made and recorded amended location certificates. The original location certificate of appellees was filed for record September 20, 1879, and their amended certificate on June 16, 1881. The original certificate of appellants was filed August 30, 1880, and their amended certificate, September 26, 1881. The original and amended certificates of appellees were offered in evidence together, and over the objection of appellants were admitted, with the following remarks in the nature of instructions by the court to the jury, to wit:

"Upon a proper identification of the certificates they will be admitted in evidence, and the jury will be instructed that the first certificate is in

itself void, and it confers upon the plaintiffs no title; that if they find from the evidence that before the amended certificate was filed for record defendants aquired rights in the premises, or an interest in the premises, then they shall disregard the second certificate; but if they find that defendants acquired no such interest, then the second certificate will relate back under the law to the plaintiffs' (location,) and will confer upon plaintiffs the rights which would have been acquired had the first been a proper location certificate."

Before the close of the evidence on the behalf of appellees, the court ordered their original location certificates withdrawn, giving the reason therefor in the following words, to wit:

"On a little reflection,—I state this before plaintiffs close their case,-I have concluded that the amended location certificate performs all the offices that the original could, and therefore I am going to withdraw it from the jury, and leave the amended certificate before the jury with a proper instruction."

The original location certificate of appellants was also held void and excluded, while their amended certificate was admitted in evidence. The objection made by appellants to the admission in evidence of appellees' amended location certificate is put upon the ground that this certificate was not filed for record until after the commencement of the suit; and, in support of this objection, counsel invoke the rule that a plaintiff in ejectment must stand or fall on the right he had when he commenced his action, and cannot make or strengthen his case by any after-acquired right or title. The question here raised is one of importance in this class of eases, and one that, so far as we can ascertain, has not before been passed upon by any court of last resort; so that we are left to determine it without the aid of adjudged precedent, but we think the rule contended for by appellants' counsel, as above stated, is inapplicable to a case like this. The question rests chiefly, if not wholly, upon what we are to consider as the nature, purpose, and functions of such location certificate. Its objects and functions are peculiar; it differs from ordinary documentary muniments of title in that it is not a title nor proof