POSTING OF LOCATION NOTICE.

Upon making a discovery the prospector should post a notice at the discovery point briefly describing his claim, and claiming the time allowed by State statute or mining district regulation for perfecting his location, giving his name and the date. No particular form of notice or manner of posting is required in any of the States. The purpose of this notice is to protect the miner while he proceeds to take the other steps prescribed by State law to complete his location.

The United States law does not require the posting or recording of a location notice, but recognizes the power of miners to require such notice to be recorded; but the mere recording of a notice, before a location is made on the ground, is a nullity.67

A location notice must be posted at the discovery point under the Colorado law.68

The Montana statutes require the notice of location to be posted at the discovery point. But the fact that no mineral was found at the point where the notice was posted does not invalidate the location if mineral has been discovered elsewhere on the claim.69

A locator who posts a notice on his claim has a reasonable time within which to mark the boundaries, and if he does this, he cuts out any adverse rights which were initiated between the dates of posting his notice and marking his claim.70

The erection of a discovery stake and posting of a notice is sufficient to protect the discoverer's rights during the time allowed by the Colorado statutes for completing a location.71

The next step is to sink the discovery shaft or other working noted above.

As to the effect of posting, it has been said: "A mere posting of notice on a ridge of rocks cropping out of the earth, or on other ground, that the poster

67 Gregory v. Pershbaker, 73 Cal., 109; Book v. Justice M. Co., 58 Fed. Rep., 106; Allen v. Dunlap, 24 Oreg., 229. 68 McCaig v. Bryan, 10 Colo., 309.

69 O'Donnell v. Glenn, 8 Mont., 248.

70 Doe v. Waterloo M. Co., 70 Fed. Rep., 455; Burke v. McDonald, 2 Idaho, 1022.

71 Erhardt v. Boaro, 2 McCrary, 141 See 113 U. S., 527, to same effect.

has located thereon a mining claim, without any discovery or knowledge on his part of the existence of metal there, or in its immediate vicinity, would be justly treated as a mere speculative proceeding, and would not itself initiate any right. There must be something beyond a mere guess on the part of the miner to authorize him to make a location which will exclude others from the ground, such as the discovery of the presence of precious metals in it, or in such proximity to it as to justify a reasonable belief in their existence. Then protection will be afforded to the locator to make the necessary excavations and prepare the proper certificate for record. It would be difficult to lay down any rules by which to distinguish a speculation from one made in good faith 'with a purpose to make excavations and ascertain the character of the lode or vein; so as to determine whether it will justify the expenditures required to extract the metal; but a jury from the vicinity of the claim will seldom err in their conclusions on the subject."72

MARKING.

After the prospector has made a discovery upon the apex of the lode, posted his notice, and has determined the course or strike thereof, he is ready for the next step, which is the marking of the boundaries thereof. Inasmuch as the various State laws differ in this particular, it will be sufficient in this connection to call attention to the Colorado statute, which requires six substantial stakes, one at each of the four corners and one in the center of each side line, if the form of the location is a parallelogram.

The stakes or monuments set should be carefully maintained, because, if destroyed, an error in the description recorded may become of serious consequence. A location must be marked to be valid.73 In the absence of a statute a locator has a reasonable time within which to stake his claim after discovery and posting

72 Erhardt v. Boaro, 113 U. S., 527.

73 Newbill v. Thurston, 65 Cal., 419; Pharis v. Muldoon, 75 Cal., 284; Neuebaumer v. Woodman, 89 Cal., 310; Becker v. Pugh, 9 Colo., 589. (Second trial, 17 Colo., 243). Gleeson v. Martin White M. Co., 13 Nev., 442; George S Dodge, 6 C. L. O., 122.

of notice. (Twenty days held to be a reasonable time.)" In the absence of local statutes or regulations, if the center of the claim is marked by stakes or monuments at each end, with a written notice on one or both describing the claim as extending from stake to stake, with a certain number of feet surface on each side of said line, the law as to marking of the claim is complied with.75 A mining claim marked by a discovery monument on which is placed the notice of location, and by a stake at each of the three corners of the claim, and a monument at the center of each end line, leaving one corner of the claim unmarked, is sufficiently marked under section 2324, United States Revised Statutes, providing that the claim shall be "distinctly marked so that its boundaries can be readily traced."76 The United States law does not define or prescribe the particular kind of marks which shall be made upon a mining location nor upon what part of the claim they shall be placed. Any marking upon the ground claimed, by stakes and mounds and written notices, whereby the boundaries of the claim may be readily traced, is sufficient."7

Where the boundaries of a claim are not kept marked the owner will not be allowed to say that his boundaries were not correctly described in his record of location as against one whose location did not conflict with the prior location as described on the record.78

A locator must use reasonable diligence in maintaining his location stakes, but is not required, absolutely, to keep them standing constantly.79

RECORD.

After the discovery has been made, and the claim properly marked upon the ground, the State statutes or local mining regulations usually require that within

74 Doe v. Waterloo M. Co., 55 Fed. Rep., 11.

75 North Noonday M. Co. v. Orient M. Co., 1 Fed. Rep., 522. 76 Warnock v. DeWitt, 11 Utah, 324.

77 North Noonday M. Co. v. Orient M. Co.. 1 Fed. Rep., 522; Jupiter M. Co. v. Bodie Cons. M. Co., 11 Fed. Rep., 666. 78 Pollard v. Shively, 5 Colo., 309.

79 McEvoy v. Hyman, 25 Fed. Rep., 596,

a specified time a record be made thereof either in the office of the county recorder or of the mining district recorder. The time allowed may be determined by consulting the local laws. While the Federal statute does not in express terms make this matter of record obligatory, yet it may be said that section 2324, United States Revised Statutes, impliedly provides therefor by giving authority to make this requirement. Inasmuch as every applicant for patent is required by the regulations of the Land Department to furnish a certified copy of the location certificate on which the application is based, and also to furnish an abstract tracing his title from such location, it would seem to be contemplated by the Department that such record be made. It may be remarked, however, that the courts hold that there is no requirement of United States law as to recording notice of a location.80

The process of recording may be in the following

manner:

Having marked the boundaries of the claim by the monuments noted, the locator should draw up a description giving the name of the lode (any name he chooses to adopt), the date of location, the courses and distances from corner to corner, beginning with corner No. 1, until the exterior boundaries close, with a statement of the width claimed on each side of the vein. The written description should contain a reference to some natural object or permanent monument by reference to which the locus of the claim may be fixed.

The courses and distances should be determined with extreme care, and the certificate should agree, as nearly as is practicable, with the monuments on the ground. The natural object or permanent monument should be,

80 Haws v. Victoria Copper M. Co., 160 U. S., 303; Thompson v. Spray, 72 Cal., 528; Golden Fleece G. & S. M. Co. v. Cable Cons. G. & S. M. Co., 12 Nev., 312; 15 Nev., 450; Southern Cross G. & S. M. Co. v. Europa M. Co., 15 Nev., 383; Poujade v. Ryan, 21 Nev., 449; Jupiter M. Co. v. Bodie Cons. M. Co., 11 Fed. Rep., 666; Carter v. Bacigalupi, 23 Pac. Rep., 361; Allen v. Dunlap, 24 Oreg., 229; King v. Edwards, 1 Mont., 235; Sullivan v. Hense, 2 Colo., 424; Harvey v. Ryan, 42 Cal., 626; Souter v. Maguire, 78 Cal., 543; Anthony v. Jillson, 83 Cal., 296; Moxon v. Wilkinson, 2 Mont., 421; Upton v. Larkin, 5 Mont., 600. (See S. C., 7 Mont., 449). Gamer v. Glenn, 8 Mont., 371; Freezer v. Sweeney, 8 Mont., 508; Quimby v. Boyd, 8 Colo., 194; North Noonday M. Co. v. Orient M. Co., 1 Fed. Rep., 522; Fuller v. Harris, 29 Fed. Rep., 814. Contra: Sweet v. Webber, 7 Colo., 443,

as indicated, of a conspicuous and permanent character, and, if possible, should be some regularly established mineral monument or a corner of the public survey within a distance of two miles. Lastly, the certificate should contain the date of discovery, the locus by section, township and range and county when possible, and be signed by the locator or locators.

If the location certificate contains some description of the claim by reference to natural objects or permanent monuments, the sufficiency of the description should be left to the jury.81 An error in a location notice in a particular not essential under the law, regulations or customs of miners is harmless and does not vitiate a description otherwise good.82 Natural objects or permanent monuments, under section 2324, United States Revised Statutes, may consist of stone monuments, blazed trees, confluence of streams, intersection of prominent buttes, of hills, or of mining shafts.83

In the case of Mt. Diablo M. Co. v. Callison, it was said by the court. "The object of any notice at all being to guide a subsequent locator and afford him information as to the extent of the claim of the prior locator, whatever does this fairly and reasonably should be held a good notice. Great injustice would follow if, years after a miner had located a claim and taken possession and worked upon it in good faith, his notice of location were to be subjected to any very nice criticism."'84

This paper should be executed in duplicate, one copy to be posted in a conspicuous place, preferably at the discovery, the other to be made a matter of record. Even though a State or Territorial statute does not

81 Taylor v. Middleton, 67 Cal., 656; McGregor v. Donelly, 67 Cal., 149; Russell v. Chumasero, 4 Mont., 309; Garfield M. & M. Co. v. Hammer, 6 Mont., 53, 130 U. S.. 291; Upton v. Larkin, 7 Mont., 449; S. C., 5 Mont., 600; Flavin v. Mattingly, 8 Mont., 242; Gamer v. Glenn, 8 Mont., 371; Seidler v. Lafave, 4 New Mex., 369; Seidler v. Maxfield, 4 New Mex., 374. The last two cases discuss this point, and overrule Baxter Mtn. G. M. Co. v. Patterson, 3 New Mex., 179.

82 Garfield M. & M. Co. v. Hammer, 6 Mont., 53. U. S., 291). Upton v. Larkin, 7 Mont.. 449; S. C., 600; Flavin v. Mattingly, 8 Mont., 242; Gamer v. Mont., 371; Metcalf v. Prescott, 10 Mont., 283. 83 Drummond v. Long, 9 Colo., 538.

84 5 Sawy., 439,

(See 130 5 Mont., Glenn, 8