Fed. Rep. 787.

295. Possession, and right and power to purchase, are inseparable. Tibbits v. Ah Tong, 4 Mont. 536.

296. "The Land Department of the government and this court also, have always acted upon the rule that all mineral locations were to be governed by the local rules and customs in force at the time of the location, when such location was made prior to the passage of any mineral law by Congress." Glacier Mtn. S. M. Co. v. Willis, 127 U. S. 471. (Citing Jennison v. Kirk, 98 U. S. 453; Broder v. Natoma Water & M. Co., 101 U. S. 274; Jackson v. Roby, 109 U. S. 440; Chambers v. Harrington, 111 U. S. 350.)

297. Locators are not bound by the terms of a prior location in which they allege.no interest. Good Return M. Co., 4 L. D. 225; Com'r to L. Bradford Prince, Dec. 14, 1893.

298. Parol evidence is admissible to define what tract is embraced in a location. Prince of Wales Lode, 2 C. L. O. 2. (Citing Kelley v. Taylor, 23 Cal. 14.)

299. The possession of a mining claim must be based on a location thereof. Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510; S. C., 3 Mont. 65; Hopkins v. Noyes, 4 Mont. 550; 2 Pac. Rep. 280; 15 Mor. Min. Rep. 287; Sweet v. Webber, 7 Colo. 443; 4 Pac. Rep. 752; 4 West Coast Rep. 116; Patterson v. Tarbell, 26 Oreg. 29; 37 Pac. Rep. 76.

300. A location made on Sunday is not void if not prohibited by local law. Richmond M. Co. v. Rose, 114 U. S. 576; Departmental decision of July 17, 1879, In re Dolly Varden Lode; Com'r to F. Cunningham, March 29, 1880.

301. The locators of a vein or lode may not amend their location because of a change in the course of the vein located so as to interfere with the vested rights of another locator. O'Reilly v. Campbell, 116 U. S. 418.

302. A relocation taking in more land than the original location is not an amended location which will relate back to the date of the

24.

304. A location may not be amended to the injury of intervening adverse rights. Golden Fleece G. & S. M. Co. v. Cable Cons. G. & S. M. Co., 15 Nev. 450; 12 Nev. 312; 1

Mor. Min. Rep. 120; Wight v. Tabor, 2 L. D. 738.

305. An amended location certificate relates back to the original location in the absence of intervening adverse rights, as does also the sinking of a discovery shaft. McGinnis v. Egbert, 8 Colo. 41; 5 Pac. Rep. 653; 15 Mor. Min. Rep. 329.

306. Where an original certificate is subject to amendment, a certificate amendatory thereof will relate back to the date of the

original certificate. Moyle v. Bullene, 44 Pac. Rep. 69 (Colo.).

307. An amended location may not be so made as to change the original location to cut off intervening adverse rights. Hall v. Arnot, 80 Cal. 348; 22 Pac. Rep. 200-203; Pellican & Dives M. Co. v. Snodgrass, 9 Colo. 339; 12 Pac. Rep. 206.

308. An amended location may enlarge the original if no one is injured thereby. Seymour v. Fisher, 16 Colo. 188; 27 Pac. Rep. 240.

of a mining claim is void, a subsequent certificate cannot, as amendatory thereof, relate back to the date of the original certificate. Moyle v. Bullene, 44 Pac. Rep. 69 (Colo.).

309. Where an original location certificate

310. A location which is separated along the line of the lode by a patented location made on a parallel lode is invalid as to one of the non-contiguous portions of the lode, as all parallel lodes embraced in the patented claim passed under the patent therefor. Col. Hall Lode (Keanage M. Griffin), 2 L. D. 735, 736.

311. An averment in pleading that land is vacant public land, and that a location notice was posted thereon, is not sufficient allegation of a legal location. Jones v. Jackson, 9 Cal. 238; Hall v. Arnot, 80 Cal. 348; 22 Pac. Rep. 200.

St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673.

330. A failure to complete a location within the time allowed by State statute may be excused by the wrongful adverse possession of the claim by third persons. Erhardt v. Boaro, 2 McCrary, 141; 1 Mor. Min. Rep. 452. See 113 U. S. 537, to same effect.

331. After the termination of an agree

ment to prospect for and locate mining claims, none of the parties are bound to perfect incomplete locations for the benefit of others, but may do so for themselves. Page v. Summers, 70 Cal. 121; 12 Pac. Rep. 120; 15 Mor. Min. Rep. 617.

332. A valid location must be so made that upon compliance with the law a patent might be issued embracing the surface evidences of

location, except, perhaps, one or more bound ary stakes. Armstrong v. Lower, 6 Colo. 393; 15 Mor. Min. Rep. 631. (Affirmed, 6 Colo. 581; 15 Mor. Min. Rep. 458.)

333. A location notice is fatally defective if it fails to state under oath the date of location. O'Donnell v. Glenn, 9 Mont. 452; 23 Pac. Rep. 1018.

334. The fact that a location laps over a prior location does not invalidate the subsequent one as to the ground subject to such location. Doe v. Tyler, 14 Pac. Rep. 375.

335. Lode claims may be located across each other. Cheesman v. Hart, 42 Fed. Rep. 98. 336. A mining claim may be conveyed by name, reference being made to the location record. Carter v. Bacigalupi, 23 Pac. Rep. 361.

337. A separate patent on each mining location is not contemplated. St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673.

338. When a valid location has been shown, performance of annual assessment work need not be shown unless non-performance thereof and relocation be alleged, and evidence thereof be given by the other party. Renshaw v. Switzer, 6 Mont. 464; 13 Pac. Rep. 127; 15 Mor. Min. Rep. 345; Mattingly v. Lewisohn, 35 Pac. Rep. 111; Quigley v. Gillett, 101 Cal. 462; 35 Pac. Rep. 1040.

339. The failure of a prior locator to adverse the application of a subsequent locator of a conflicting claim is a waiver of his priority. Gustavus Hagland, 1 L. D. 591.

340. A conveyance of a lode carries all title thereto, whether held under one or more locations thereof, and the name used is immaterial if the intent is clear. Phillpotts v. Blasdell, 8 Nev. 61; 4 Mor. Min. Rep. 341; Weill v. Lucerne M. Co., 11 Nev. 200; 3 Mor. Min. Rep. 372.

341. On an adverse suit, if the defendant shows a prima facie good location, the plaintiff must either show a better one or that defendant's lode does not extend into the ground in conflict. Patterson v. Hitchcock, 3 Colo. 533; 5 Mor. Min. Rep. 542.

342. For discussion of the question as to when the locator of a mining claim is a trespasser, see Flagstaff S. M. Co. v. Tarbett, 98 U. S. 463; 9 Mor. Min. Rep. 607.

343. Land left in a forty-acre tract after the exclusion therefrom of mineral surveys may be located and described in an application for patent by the lot number given it by the Surveyor General. Geo. B. Foote, 9 C. L. O. 113.

344. The cancellation of a mineral entry for non-compliance with antecedent statutory requirements does not affect the possessory rights of the applicant. John R. Magruder, 12 C. L. O. 51; McGowan v. Alps Cons. M. Co., 23 L. D. 113.

345. A location under which the land containing the improvements has been excluded in favor of a subsequent locator will not support a mineral entry under section 2325, United States Revised Statutes. Independence Lode, 9 L. D. 571.

346. As to what are prerequisites to a valid location, see Van Zandt v. Argentine M. Co., 2 McCrary, 159; 4 Mor. Min. Rep. 441.

347. The location of a vein or lode as running in a certain direction, not marked or developed for years, but simply indicated by a notice, is invalid as against a claim subsequently located on ground different from that indicated, after the development of the latter claim without objection, although subsequent explorations by the first locators disclose the fact that their vein in its true course is covered by the subsequent claim. O'Reilly v. Campbell, 116 U. S. 418.

348. The validity of a location based upon a discovery made within a prior location, with the consent of the prior locator, may not be questioned on that account by a grantee of such prior locator, as the assent of

his grantor to the making of the second discovery and location operated as an abandonment of conflicting rights. Golden Terra M. Co. v. Smith (Mahler), 2 Dak. 377; 11 N. W. Rep. 97; 4 Pac. Coast Law Jour. 405; 4 Mor. Min. Rep. 390.

349. "The last position of the court below, that the owner of contiguous locations who seeks a patent must present a separate application for each, and obtain a separate survey, and prove that upon each the required work has been performed, is as untenable as the rulings already considered." St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep.

673.

350. The lines of location must be shown on the survey and plat. Philip Dephanger, 8 C. L. O. 189.

351. A location must not cover a prior valid location, and if it does it is void. Faxon v. Barnard, 4 Fed. Rep. 705.

352. The possessory right of miners is recognized by the acts of 1866 and 1872. Forbes v. Gracey, 94 U. S. 762.

353. When plaintiff's ownership and right of possession are put in issue by answer, he must show affirmatively compliance with the act of Congress and local rules and regulations, and that he had thereby made a valid location. Garfield M. & M. Co. v. Hammer, 6 Mont. 53; 8 Pac. Rep. 153. (See 130 U. S. 291.) Terrible M. Co. v. Argentine M. Co., 5 McCrary, 639.

354. The Land Department can take no judicial cognizance of the location of mining claims, as no record thereof is kept by it. Bodie T. & M. Co. v. Bechtel Cons. M. Co., 1 L. D. 584.

355. The validity of a mining location may not be questioned in an ejectment suit where both parties claim under such location. Union Cons. M. Co. v. Taylor, 100 U. S. 37; 5 Mor. Min. Rep. 323.

356. A location invalid when made is void. Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510.

357. Miners should not be held to technical accuracy in the matter of description of their claims. Prince of Wales Lode, 2 C. L 0. 2.

358. A mining claim may include any number of adjacent locations. Poire v. Wells, 6 Colo. 406.

359. The failure of government surveyors: to segregate mineral from agricultural lands cannot operate to the injury of occupant miners. Gold Hill Quartz M. Co. v. Ish, 5 Oreg.. 104; 11 Mor. Min. Rep. 635.

360. When an application to enter agricultural land is made, if the locators of mining claims on the land have any objections they must be vigilant in presenting them. The rules and regulations provide ample means for this purpose, and, if the remedies are not pursued, the mineral claimants will not be heard to complain. Departmental decision of March 11, 1896, In re Caribou Lode.

361. The fact that a part of a mining location on which were situate the improvements was, after location patented to an agricultural claimant, does not render the location invalid, at least as to a subsequent locator not claiming under the agricultural patentee. Richards v. Wolfing, 98 Cal. 195; 32 Pac. Rep. 971.

362. A mining location in Alabama, made prior to March 3, 1883, and properly maintained, entitles the locator to make entry thereof on due compliance with law, notwithstanding the provision of the act of that date (22 Stat. 487) providing that lands in Alabama should be disposed of only as agricultural lands. Cordell Placer, 4 L. D. 476.

363. A mining claim was worked until 1869, and was then abandoned. A town site patent issued in 1869, covering the claim. The claim was located subsequently, in 1884. Held, that the claim was not such a mine as would be excepted from the town site patent. Richards v. Dower, 81 Cal. 44; 22 Pac. Rep. 304. See 151 U. S. 658.

364. Prior to the act of August 4, 1892 (27 Stat. 348), there was no authority for the location of land chiefly valuable for building stone, under the placer laws, and the passage of said act cannot validate prior locations in the face of an intervening adverse right. Clark v. Ervin, 16 L. D. 122; Departmental Instructions of August 29, 1896.

365. The fact that land has been located as a mining claim is not, in itself, proof of the mineral character of the land, especially where the burden of proof is upon the mineral claimant. Etling v. Potter, 17 L. D. 424.

366. The fact that land was once embraced in a mining location, since abandoned, is not proof of its mineral character, which must