feet above the surface of the ground, or by substantial stone monuments, at least three feet high,-to wit, one at each corner of said claim, and one at the center of each end-line thereof.1 Montana.-The locator must within thirty days after posting notice of location define the boundaries of his claim, by marking a tree or rock in place, or by setting a post or stone, at each corner, or angle, of the claim. If a post is used, it must be at least four inches square by four feet six inches in length, set one foot in the ground, with a monument of earth or stone at least four feet in diameter by two feet in height around the post. If a stone is used, not a rock in place, it must be at least six inches square and eighteen inches in length, set two thirds of its length in the ground, which trees, stakes, or monuments must be so marked as to designate the corners.2 Nevada. The locator must define the boundaries of his claim by marking a tree or rock in place, or by setting a post or stone one at each corner, and one at the center of each side-line. In other respects the requirements are the same as those in Montana.3 New Mexico.-No time is provided within which marking is to be effected. Ninety days are allowed to sink discovery shaft and three months to record copy of notice of location. The inference is plausible that the locator should be allowed to complete his development work before marking his boundaries. In any event, he is allowed a reasonable time. Surface boundaries are to be marked by four substantial posts or monuments, 1 Rev. Stats. (1901), § 3236. This statute is discussed in Wiltsee v. King of Arizona M. and M. Co. (Ariz.), 60 Pac. 896. 2 Rev. Code of 1895, § 3611, as amended-Laws of 1901, p. 140, § 1. Right to swing claim within time: Sanders v. Noble, 22 Mont. 110, 55 Pac. 1037. 3 Comp. Laws (1900), § 209, as amended-Stats. 1901, p. 97. 'Ante, § 372. one at each corner of the claim, thus distinctly marking the claim on the ground, so that its boundaries can be readily traced.1 North Dakota.-Before filing the certificate of location for record (sixty days from date of discovery), the boundaries shall be marked by eight substantial posts, hewed, or blazed, on the side facing the claim, and marked with the name of the lode and the corner, end, or side of the claim that they respectively represent, and sunk into the ground as follows: One at the corner, and one at the center of each side-line, and one at each end of the lode; but when it is impracticable, on account of rock or precipitous ground, to sink such posts, they may be placed in a monument of stone.2 Oregon.-Within thirty days after posting of the notice of location the boundaries shall be marked by six substantial posts, projecting not less than three feet above the surface of the ground, and not less than four inches square or in diameter, or by substantial mounds of stone or earth and stone, at least two feet in height,to wit, one such post or mound of rock at each corner and at the center ends of such claims.3 South Dakota.-Same as North Dakota.4 Utah.-Mining claims must be distinctly marked on the ground, so that the boundaries thereof can be readily traced. No time is fixed within which this should be done. The sinking of a discovery shaft is not required. The locator would therefore be allowed a reasonable time to mark his boundaries." 'Laws of 1899, p. 111. 2 Rev. Code of 1895, §§ 1428, 1430, 1431; Id., 1899, §§ 1428, 1430, 1431. 3 Laws of 1898, p. 16, as amended-Laws of 1901, p. 140. * Comp. Laws of Dak. 1887, § 2002. Adopted by South Dakota-Laws of 1890, ch. cv.; Grantham's Annot. Stats. S. D., § 2661. 5 Laws of 1899, p. 26, § 3. Lindley on M.-44 Washington. The locator is required to record a notice of location within ninety days from the date of discovery, and before filing the same for record must mark the surface boundaries of the claim by placing substantial posts or stone monuments, bearing the name of the lode and date of location; one post or monument must appear at each corner of said claim; such posts or monuments must be not less than three feet high. If posts are used, they shall be not less than four inches in diameter and shall be set in the ground in a substantial manner. If the claim is on ground, wholly or partly covered with brush or trees, such brush shall be cut and trees marked, or blazed, to indicate the lines of such claim.1 Wyoming.-Substantially the same as Colorado.2 While the requirements of these several laws should be fulfilled to a reasonable degree, a substantial compliance, where the good faith of the locator is manifest, would undoubtedly be held sufficient. Such statutes are, as a rule, liberally construed. Slight variations should not be permitted to invalidate a location otherwise valid.3 375. Perpetuation of monuments.-Under the rules and customs governing the rights of tin bounders in Cornwall, bounds were required to be renewed annually, in default of which the estate was subject to re-entry by others.* These bounds, however, were marked, and possession delivered after proceedings had in the stannary courts, the writ of possession being executed by the court bailiff. Laws of 1899, p. 69. *Laws of 1888, p. 88, § 17; Rev. Stats. (1899), § 2548. 3 But see Cræsus M. and M. Co. v. Colorado L. and M. Co., 19 Fed. 78; Taylor v. Parenteau, 23 Colo. 368, 48 Pac. 505. Ante, § 5. The "gales" of the free miner, in the coal and iron mines of the Forest of Dean, were set out and marked by the gaveler of the forest;1 and among the lead miners of Derbyshire, the "meers" were measured by the barmaster, an agent of the crown, in conjunction with two of the grand jury.2 In Mexico, the boundaries were marked, after measurement, by an agent of the mining deputation, who was usually a skilled engineer, and the miner was called upon to enter into an obligation to "keep and observe "them forever.' 113 These methods of establishing boundaries, succeeding, as they did, a formal adjudication as to the right to possession, suggest the propriety of permanency. In the United States, however, we are required to mark our boundaries first, and determine our right to possession afterwards. Even when a survey for patent is made, the deputy mineral surveyor is an agent of the claimant, and his acts in no sense bind the government, and, as we shall observe when dealing with patent proceedings, surveys are made, in the first instance, of the ground claimed, regardless of overlapping surfaces or interference with prior surveys or locations. Relative rights arising out of these conflicts are frequently not determined until after long litigation. Therefore, there would be but little use in compelling the erection of indestructible monuments for the purpose of marking the extent of the ground claimed. Ordinary prudence will suggest to the locator the advisability of preserving his marks. But the law does not require it. Therefore, it has been held that where a mining claim is once sufficiently marked on the ground, and all other necessary acts of location are performed, a right vests in the locator, which cannot be divested by the subsequent Ante, § 13, p 21. 1 1 Ante, § 7. Ante, § 8. obliteration of the marks or removal of the stakes without the fault of the locator.1 Where the evidence shows that the boundaries were originally marked, the fact that the stakes then set could not in later years be found raises no presumption against the validity of the original marking.2 The supreme court of Colorado suggests a sensible exception to this rule: Where there is a variation between the calls of the recorded location certificate and the monuments established on the ground, the locator, in order to avail himself of the rule of law which gives controlling effect to the monuments as they were placed on the ground, must keep up his markings. The reason given in support of this is, that as the erroneous record fails to give constructive notice, if the monuments are swept away, no search, no exercise of prudence, diligence, or intelligence, would advise the subsequent locator of the extent and limits of the prior appropriation, and this is one of the principal objects of marking. The rule that monuments shall control courses and distances is recognized only in cases where the monuments are clearly ascertained. If there be doubt as to monuments, as well as to the course and distance, there can be no reason for saying that monuments shall prevail, rather than the course.* 3 Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 110, 11 Fed. 666; Book v. Justice M. Co., 58 Fed. 106, 114; McEvoy v. Hyman, 25 Fed. 596, 598; Smith v. Newell, 86 Fed. 56; Yreka M. Co. v. Knight, 133 Cal. 544, 65 Pac. 1091; Walsh v. Erwin, 115 Fed. 531, 537. Temescal Oil and D. Co. v. Salcido, 137 Cal. 211, 69 Pac. 1010. Thallmann v. Thomas, 102 Fed. 925. |