below the surface at which the vein appeared in place as the result of this class of development was immaterial.1 The same court also determined that an "adit" need not be altogether under cover.2 ARTICLE V. THE PRELIMINARY NOTICE AND ITS POSTING. 350. Local customs as to prelim inary notice, and its post- 351. State legislation requiring § 352. First group. § 353. Second group. Liberal rules of construc- § 356. Place and manner of posting. 350. Local customs as to preliminary notice, and its posting prior to enactment of federal laws-Not required by congressional law.-During the period when mining privileges upon the public domain were governed exclusively by the local regulations and customs of miners, the first step in the inception of the miner's right, after the discovery, was the posting of a notice at some point on, or in reasonable proximity to, the discovered lode, usually upon a tree, stake, or mound of rocks. The posting of this notice served to manifest the intention of the discoverer to claim the vein to the extent described, and to warn all others seeking new discoveries that there was a prior appropriation of the lode to which the posted notice applied. 'Gray v. Truby, 6 Colo. 278; Craig v. Thompson, 10 Colo. 517, 526, 16 Pac. 24; Brewster v. Shoemaker, 28 Colo. 176, 63 Pac. 309, 89 Am. St. Rep. Electro-Magnetic M. and D. Co. v. Van Auken, 9 Colo. 204, 11 Pac. 80; Craig v. Thompson, 10 Colo. 517, 526, 16 Pac. 24. Yale on Mining Claims and Water Rights, p. 78; J. Ross Browne's Mineral Resources, 1867, pp. 236-242; Gleeson v. Martin White M. Co., 13 Nev. 450. These notices were of the simplest character, were required to be in no particular form, and were generally prepared by unlettered men. They served the purpose, however, and enabled any one seeking in good faith to locate claims to ascertain the extent and nature of the right asserted on the particular lode by the prior dis coverer. During this period, it will be remembered, as well as during the period immediately preceding the passage of the act of May 10, 1872, the lode was the principal thing sought, and the surface was a mere incident.1 The locator could hold but one vein,2 and while surface boundaries were eventually in some way defined, neither the form nor extent of such surface, prior to filing the diagram for patent, controlled the rights on the located lode.3 While the act of 1872 changed all this, and required the marking of surface limits inclosing the located lode, it did not dispense with the necessity of posting the preliminary notice, when such was required by state or district rules, nor destroy its usefulness in the absence of any such regulations. While, in the absence of state legislation or district regulations, the posting of a notice on the claim is not required at any stage of the proceedings culminating in the completion of the location, the 1 Ante, § 58; Johnson v. Parks, 10 Cal. 447; Patterson v. Hitchcock, 3 Colo. 533, 544; Wolfley v. Lebanon M. Co., 4 Colo. 112; Walrath v. Champion M. Co., 63 Fed. 552; Del Monte M. Co. v. Last Chance M. Co., 171 U. S. 55, 18 Sup. Ct. Rep. 895. Eureka Case, 4 Saw. 302, 323, Fed. Cas. No. 4548; Eclipse G. and S. M. Co. v. Spring, 59 Cal. 304. 3 Ante, § 58. 4 Ante, §§ 70, 71. 5 Haws v. Victoria C. M. Co., 160 U. S. 303, 16 Sup. Ct. Rep. 282; Gird v. California Oil Co., 60 Fed. 531, 536; Book v. Justice M. Co., 58 Fed. 106, 115; Allen v. Dunlap, 24 Or. 229, 33 Pac. 675; Carter v. Bacigalupi, 83 Cal. 187, 192, 43 Pac. 361; Meydenbauer v. Stevens, 78 Fed. 787; Willeford v. Bell (Cal.), 49 Pac. 6; Perigo v. Erwin, 85 Fed. 904. But see Adams v. Crawford, 116 Cal. 495, 498, 48 Pac. 488. prospector's first impulse upon discovering a lode is to post his notice. While his failure to so do, where the state law or local custom does not require it, is accompanied with no deprivation of right, yet it may be safely said that the practice of posting a notice of this character is almost universal. 2 351. State legislation requiring the posting of notices. States grouped.-There is no state statute requiring the posting of any notice whatever in California. The supreme court of that state, notwithstanding the absence of any state legislation on that subject, has specified the posting of a notice as one of the preliminary requirements to the perfection of a valid location.1 This expression in the opinion of the court is merely by way of recital. It states what is undoubtedly the customary practice. But if it was intended to go beyond this the decision is opposed to the authorities cited in the preceding section, including one of its own decisions.2 For the purpose of disclosing the nature of the legislation on this subject in the other precious-metal-bearing states and territories, we may group them into three classes: (1) Those requiring a preliminary notice which has no reference to the recorded certificate of location; (2) Those wherein the posted notice bears a direct relation to the recorded certificate; (3) Those requiring two different notices to be posted -one a preliminary, or discovery notice, the other conforming to the certificate which must ultimately be recorded. Adams v. Crawford, 116 Cal. 495, 498, 48 Pac. 488. 'Carter v. Bacigalupi, 83 Cal. 187, 192, 43 Pac. 361. 352. First group. Colorado requires to be posted at the point of discovery on the surface a plain sign, or notice, containing: (1) the name of the lode; (2) the name of the locator; (3) the date of discovery. This posting must precede the recording of the certificate of location, but otherwise the posted notice is wholly disconnected from the recorded instrument.1 Montana.-The Montana law adds to the requirements of the Colorado law: (4) the number of linear feet each way from the point of discovery; (4a) the width on each side of the center of the vein; (4b) the general course of the vein. Nothing is said as to when the notice shall be posted, but the inference is that it should be done at the time of the discovery.2 Nevada. The requirements in this state are the same as those of Montana.3 North Dakota1 and South Dakota add to the Colorado requirements: (4) the number of feet claimed in length on either side of the discovery; (5) number of feet in width on either side of the lode. Washington.-The contents of the notice required in Washington are the same as those in Colorado." Wyoming. The requirements in this state are the same as in Colorado, except that the name of the discov 2 1 Mills' Annot. Stats., § 3152. Validity upheld: Purdum v. Laddin, 23 Mont. 387, 39 Pac. 153; Rev. Code, 1895, § 3610. 5 Rev. Codes, § 1430, subd. 2; Id. (1899), § 1430. Comp. Laws of Dakota, 1887, § 2001, adopted by South Dakota Laws of 1890-1891, ch. cv, § 1; Grantham's Annot. Stats. S. Dak. (1899), § 2660, as amended--Laws of 1899, p. 148. Laws of 1899, p. 69. erer must also appear, suggesting that the locator and discoverer may be different persons.1 353. Second group.— Arizona requires the posting, at or contiguous to the point of discovery on the surface, of a location notice, which must contain: (1) name of claim; (2) name of locator; (3) date of location; (4) the length and width of the claim in feet, and the distance from the point of discovery to each end of the claim; (5) the general course of the claim; (6) locality of the claim with reference to natural monuments. A copy of the location notice must be recorded.2 New Mexico provides for the posting, in some conspicuous place on the location, of a notice in writing, stating: (1) the names of the locators; (2) the intent to locate the claim; (3) a description by reference to some natural object or permanent monument. A copy of this notice as posted must be recorded.3 Oregon requires the locator to post on the claim a notice of discovery and location, which shall contain: (1) name of the claim; (2) name of locator; (3) date of the location; (4) number of linear feet claimed along the vein or lode each way from the point of discovery, with the width on each side of the lode or vein; (5) the general course, or strike, of the vein, or lode, as nearly as may be, with reference to some natural object or permanent monument in the vicinity thereof. A copy of the 'Laws of 1888, p. 88, § 17; Rev. Stats. (1899), § 2548. Rev. Stats. (1901), § 3232. Statute commented on in Wiltsee v. King of Arizona M. and M. Co. (Ariz.), 60 Pac. 896. 3 Comp. Laws of 1884, p. 754, § 1566; Id. (1897), § 2286. The posting of this notice must be practically contemporaneous with the discovery. No appreciable time is allowed. Deeney v. Mineral Creek M. Co. (N. Mex.), 67 Pac. 624. |