shall be sustained in any court of law or something toward answering these ques-
chancery unless award of loss by arbitra- tions. The form of the declaration does not
tion, as herein provided for, shall have been appear, but we may suppose a count upon
first returned, is waived by a denial of all the casualty company's refusal to defend
liability, and an action is then at once the suit against the plaintiff. If the de-
maintainable.
fendant's contention is right, that breach

Bailey v. Etna Ins. Co. 77 Wis. 336, 46 made it impossible for the plaintiff to en-
N. W. 440.

The general rule is that arbitration, ap praisal, and all other acts which are made conditions precedent to an action upon a contract of insurance, are waived by a denial of all liability.

Beach, Ins. § 1244.

Messrs. George Weems Williams and Frank Gosnell argued the cause and filed a brief for the Maryland Casualty Company:

title itself to the payment promised in the
policy according to its terms. But the de-
fendant could not set itself free by so[181]
simple a device. In general, when one party,
by his fault, prevents the other party to a
contract from entitling himself to a benefit
under it according to its terms, the former is
liable for the value of that benefit, less the
value or cost of what the plaintiff would
have nad to do to get it. In this case the
plaintiff had nothing more to do or to pay
after it had been compelled to satisfy the
claim against it. And therefore on general

In contracts of indemnity, where the ob-
ligation is to perform some specific thing
or to save the obligee from a charge or lia-principles, it would be entitled to demand
bility, it seems the contract is broken when
there is a failure to do the specific act, or
when such charge or liability is incurred.

the whole amount which the jury might find
that it would have received had the con-
tract been performed. Hinckley v. Pitts-
burgh Bessemer Steel Co. 121 U. S. 264, 30
L. ed. 967, 7 Sup. Ct. Rep. 875.

It is suggested, to be sure, that the plain-
tiff should have defended the suit against

But where the obligation is that the party indemnified shall not sustain damage or molestation by reason of the acts or omissions of another, or by reason of any liability incurred through such acts or omis-it. sions, there is no breach until actual damage is sustained.

And, in such cases, a judgment recovered against the party indemnified on account of the acts or neglect of another for which he is answerable, without payment of the judgment, or some part thereof, does not entitle him to sustain an action against the indemnitors.

But not only was that not one of the plaintiff's undertakings, but it was expressly forbidden to the plaintiff by the contract, as no doubt the defendant would have pointed out had that course been taken. Moreover, the defendant, by its refusal, cut at the very root of the mutual obligation, and put an end to its right to demand further compliance with the supposed term of the contract on the other side. The only concern of the plaintiff was to establish reasonable ground for believing that if the defendant had not broken its contract it would have been called on to make a payment to the plaintiff, and how much that payment would have been.

Frye v. Bath Gas & Electric Co. 97 Me. 241, 59 L.R.A. 444, 94 Am. St. Rep. 500, 54 Atl. 395; Travelers Ins. Co. v. Moses, 63 N. J. Eq. 260, 92 Am. St. Rep. 663, 49 Atl. 720; Finley v. United States Casualty Co. 113 Tenn. 592, 83 S. W. 2; Cushman v. Carbondale Fuel Co. 122 Iowa, 656, 98 N. Looking at the substance of the matter, W. 509; O'Connell v. New York, N. H. & it makes no practical difference, no differH. R. Co. 187 Mass. 272, 72 N. E. 979; ence in the amount of the defendant's liaMunro v. Maryland Casualty Co. 96 N. Y. bility, whether we say that the defendant, Supp. 705; Henderson v. Maryland Casualty | by its conduct, made performance of the Co. 29 Pa. Super. Ct. 398; Connolly v. Bolster, 187 Mass. 266, 72 N. E. 981. The policy should be construed as though entered into between individuals.

Imperial F. Ins. Co. v. Coos County, 151 U. S. 452, 462, 38 L. ed. 231, 235, 14 Sup. Ct. Rep. 379; Baltimore & O. S. W. R. Co. v. Voigt, 176 U. S. 499, 44 L. ed. 561, 20 Sup. Ct. Rep. 385; Riddlesbarger v. Hartford F. Ins. Co. 7 Wall. 390, 19 L. ed. 259.

conditions by the plaintiff impossible, and
therefore was chargeable for the sum which
it would have had to pay if those conditions
had been performed, or answer, in the lan-
guage of the questions, that performance of
the conditions was waived. The sole differ-
ence would be in the form of the declara-
tion. In either case the plaintiff would de-
clare upon the policy, only the breaches as-
signed would not be the same. In the for-
mer, the breach would be the refusal to de-
fend; in the latter, the refusal to pay. If

Mr. Justice Holmes delivered the opin- it is necessary to consider the question in [182] ion of the court:

a technical aspect, we think that the plain

An elementary remark or two will do tiff was entitled to treat the contract as on

defendant's act, | tiff should be bound to try the case against Under the cir- itself, although it should be plain that by comply literally a compromise it could reduce its claim on the defendant as well as its own loss.

to question the facts whose existence was as- which, reversing the judgments of the Dis-
sumed in the trial court, and on which as-trict Court of Teller County, in that state,
sumption the trial proceeded without objec- held that the south end of a lode mining
tion, and the case was decided, especially
where the alleged omissions might have been claim reverted to the public domain and be-
supplied if called to the attention of the came subject to relocation when the claim-
trial court.
ant elected to retain the north end of the
claim, after patent for the entire claim
had been refused and the Land Department
had decided a contest with a placer claimant
against the contention of a known vein in
the placer conflict. Affirmed.

2. Mines-lode location-amendment.An amended relocation of a mining claim, made after the land has reverted to the public domain, cannot cure the defect in the original relocation arising out of the fact that the land was not then subject to entry, where intervening rights in favor of a third person have been created.

3. Mines-lode location-reversion

to

public domain-relocation.-The south end of a lode mining claim, separated from the rest of the claim by a patented placer claim, did not revert to and become part of the public domain, and, as such, subject to relocation, until the claimant elected to retain and patent the north end of the claim, although such election was not made within the sixty days given for that purpose by the Land Department in refusing a patent for the entire claim because divided by the placer claim, but was deferred until after the unsuccessful termination in the Land Department of a contest with the placer claimant, begun after the decision refusing the patent. 4. Mines-lode location-reversion

to

public domain-relocation.-An election to retain the north end of a lode mining claim, separated from the rest of the claim by a patented placer claim, made after the unsuccessful termination in the Land Department of a contest with the placer claimant, begun after a patent for the entire claim was refused because divided by the placer claim, took effect eo instanti as an abandonment of the south end of such claim, which became at once subject to relocation, although the entry as to such tract had not then been formally canceled.

5. Public lands-decision of Land Department-collateral attack-Rulings of the Land Department as to the tract cov ered by a lode mining claim are as free from collateral attack where final entry has been made as though patent had issued.

[Nos. 97, 98, 99.]

Argued and submitted December 5, 1905.
Decided April 2, 1906.

See same case below, 32 Colo. 472, 77
Pac. 357.

Statement by Mr. Chief Justice Fuller:
Brown applied for patent on a mining
claim, known as the Scorpion, and Gurney
adversed this application as the owner and
claimant of the Hobson's Choice, as did
Small, *also, as the owner and claimant of[185]
the P. G. claim. Thereafter each brought
suit in support of his adverse claim in the
district court of Teller county, Colorado.
The cases were tried together on an agreed
This showed that the
statement of facts.
Scorpion, Hobson's Choice, and P. G. loca-
tions covered substantially the same tract
of ground, and were all made in compliance
with law, with the exception repeated in
connection with each of said locations:
"Provided, however, that it is not admitted
that at the time of said location the ground
embraced in said location was a part of
the vacant and unappropriated public do-
main."

It appeared that prior to May 28, 1895, a
mining lode location called the Kohnyo was
owned by the Cripple Creek Mining Com-
pany, which claim was divided into two non-
contiguous tracts by the Mt. Rosa placer
claim. The north end of the Kohnyo, com-
prising 500 feet of the claim, was where
the discovery of mineral was made, and it
also contained a discovery shaft and the
other workings and improvements of the
claim. The south end, being 700 feet in
length, did not show mineral, and was
without development work of any kind.
The following diagram illustrates the sit-

IN ERROR to the Supreme Court of the
State of Colorado to review a judgment uation:

The local land office permitted the claim- as

one claim, but the Department ultiant of the Kohnyo to enter the two tracts mately refused to issue a patent for such 201 U. S.

1905.

BROWN V. GURNEY.

The identity of the ground in question with the southerly part of the Kohnyo location, and the existence of the Kohnyo location and entry, cannot be established by concessum of counsel on appeal, or by any permissible legal inference from the record.

tracts, hasing the refusal upon the ground, ter and Horace F. Clark, filed a brief for that two portions of a lode mining claim, for Brown: separated by a patented placer, could not be included within one patent. The land office gave the applicant, however, the privilege to apply for a patent upon either of [186]*the segregated tracts, and directed that, in default of an election or appeal by the claimant within sixty days from the date of the order, the entry of that portion of the claim lying south of the Mt. Rosa claim should be canceled without further notice. This decision was rendered May 28, 1895, and no appeal was taken from it; but the claimant of the Kohnyo instituted proceedings against the claimant of the Mt. Rosa placer, the purpose of which was to secure title to the vein of the Kohnyo, which, it was claimed, passed through the portion of the placer claim which conflicted These proceedwith the kohnyo location. ings were prosecuted before the Land Department, with the result that on May 7, 1898, a decision was rendered against the Kohnyo claimant's contention of a known vein in the placer conflict.

June 14, 1898, the claimant of the Kohnyo
filed in the land office a written instru-
ment, dated June 10, by which it elected to
retain and patent the north end of the
Kohnyo claim, and in which it also waived
any right to further question or review the
decision of the Secretary of the Interior
of May 7, 1898, affirming the decision
of May 28, 1895.

July 15, 1898, the Commissioner of the
General Land Office canceled the entry of the
Kohnyo claim as to that portion south of
the Mt. Rosa placer.

May 13, 1898, Brown located this 700 feet
as the Scorpion lode claim. June 23, 1898,
Gurney located the same premises as the
Hobson's Choice lode claim, and July 16,
1898, Small located the same ground as the
P. G. lode claim. July 15 and 16, 1898, the
claimant of the Scorpion filed amended
and second amended certificates.

On these facts, judgment was rendered for defendant in each case, from which plaintiffs appealed to the supreme court of the state. That court reversed the judgment in Gurney v. Brown, and entered judgment that Gurney recover the premises inIcluded in the Hobson's Choice location, and for costs; and reversed the judgment in Small v. Brown, and entered judgment "that neither party has established any right to [187] the *premises in controversy," and for costs. The opinion is reported in 32 Colo. 472, 77 Pac. 357.

Mr. William C. Prentiss argued the cause, and, with Messrs. Charles F. Pot

Pueblo v. Robinson, 12 Colo. 593, 21 Pac. 899; Parker v. People, 7 Colo. App. 56, 42 Pac. 172; Reddicker v. Lavinsky, 3 Colo. App. 159, 32 Pac. 349; Martin v. Force, 3 Colo. 199; Evans v. Young, 10 Colo. 316, 3 Am. St. Rep. 583, 15 Pac. 424; Leach v. Lothian, 10 Colo. 439, 15 Pac. 816; Schwed v. Robson, 12 Colo. 400, 21 Pac. 189; Parker v. People, 13 Colo. 155, 4 L.R.A. 803, 21 Pac. 1120; Empire Land & Canal Co. v. Engley, 14 Colo. 289, 23 Pac. 452; Townsend v. Fulton Irrigating Ditch Co. 17 Colo. 145, 29 Pac. 453; Zadig v. Baldwin, 166 U. S. 485, 41 L. ed. 1087, 17 Sup. Ct. Rep. 639; Parkison v. Boddiker, 10 Colo. 503, 15

Pac. 806.

The pendency of a mineral entry does not prevent location by another of the ground covered thereby, and such location becomes effective if the entry be canceled or linquished and the possessory title forfeited

or abandoned.

re

Lavagnino v. Uhlig, 198 U. S. 443, 49 L. ed. 1119, 25 Sup. Ct. Rep. 716.

Possessory rights to mining claims may be acquired and maintained irrespective of patent proceedings, unless such proceedings culminate in the issuance of patent.

Clipper Min. Co. v. Eli Min. & Land Co. 194 U. S. 220, 226, 48 L. ed. 944, 949, 24 Sup. Ct. Rep. 632; Little Pauline v. Leadville Lode, 7 Land Dec. 506; Cain v. Addenda Min. Co. 29 Land Dec. 62; Re Wolenberg, 29 Land Dec. 302, 488; Re Lucky Find Placer, 32 Land Dec. 200; Adams v. Polglase, 32 Land Dec. 477; Jaw Bone Lode V. Damon Placer, 34 Land Dec. 72; Benson Min. & Smelting Co. v. Alta Min. & Smelting Co. 145 U. S. 428, 36 L. ed. 762, 12 Sup. Ct. Rep. 877.

A location duly made before cancelation of the entry becomes valid upon such cancelation, if the possessory title upon which entry was made falls for any reason.

Murray v. Polglase, 23 Mont. 401, 59 Pac. 439; Adams v. Polglase, supra; 33 Land Dec. 30.

The location can be valid only to the extent of the lode, and if the lode terminates at a point within the location, the location beyond such point is invalid.

Armstrong v. Lower, 6 Colo. 393; Patterson v. Hitchcock, 3 Colo. 533; Zollars v. Evans, 5 Fed. 172.

719

The petition of August 14, 1895, was, in effect, an application for reinstatement and amendment.

Re Kohnyo & F. Lodes, 28 Land Dec. 451; Guillory v. Buller, 24 Land Dec. 209; Northern P. R. Co. v. De Lacey, 174 U. S. 622, 43 L. ed. 1111, 19 Sup. Ct. Rep. 791.

The application for reinstatement takes effect as of the date formal application is made to the register of the local office for republication of notice.

Jaw Bone Lode v. Damon Placer, supra. Under the rules of the Land Department, a decision takes effect at once, and is not in suspense pending the time for appeal or review, and during such time entries are received subject to the right of appeal or