Mr. Morrison, the neglect of the locator to comply with this requirement is equivalent to an abandonment of the inchoate right given by discovery. The discovery has performed its office. The perfected location rests ultimately on the completed development work. This we understand to be the rule announced by Judge Hallett in the Adelaide-Camp Bird case, and we are not aware of any adjudicated case to the contrary. It is true, that the supreme court of Utah' and the United States circuit court, ninth circuit, district of California,' have announced that it is not necessary that the locator should show the existence of a vein in any particular place, provided it is shown to exist in some portion of the claim; but it must be borne in mind, that neither the laws of Utah nor California require the performance of development work as a prerequisite to a perfected location, and in the absence of such local legislation it is not required. 5 An original discovery may be made in the discovery shaft, even after a location has been perfected, and this will be sufficient in the absence of intervening rights." 346. Extent of development work. While in some of the states under consideration' the requirements of the law are satisfied when the discovery shaft or opening shows a well-defined mineral vein, or lode, regardless of the vertical distance from the surface at which it is disclosed, the others require a certain depth in case of the shaft, and length in case of other openings, and this requirement must be fulfilled, ålthough the vein is disclosed before reaching the required distance," thus giving sanction to 1 Morr. Min. Rights, 8th ed., p. 27. 2 Van Zandt v. Argentine M. Co., 8 Fed. 725. 3 Harrington v. Chambers, 3 Utah, 94. 'North Noonday M. Co. v. Orient M. Co., 6 Saw. 299. 5 See, ante, 2 343. Strepy v. Stark, 7 Colo. 619; Zollars & H. C. C. M. Co. v. Evans, 2 McCrary, 39. See, ante, 330. 7 North and South Dakota. & Colorado, Arizona, Idaho, Montana, New Mexico, and Wyoming. Morr. Min. Rights, 8th ed., p. 33. the view hereinbefore expressed, that the object of requiring development work was two fold.' For example, the discovery shaft must be at least ten feet deep. It must be deeper if, at the required vertical distance from the lowest rim, the vein or crevice be not disclosed. It is hardly. profitable to discuss the consequences flowing from a failure to strictly comply with the requirements as to depth, if the proper vein exposure is found within the required distance. Prudent miners will not jeopardize valuable rights by failing to comply fully with the law, and courts will readily detect a manifest attempt at evasion. The requirement as to disclosing the vein, crevice, or deposit in place, which terms are legal equivalents, is unquestionably mandatory. As to what constitutes such. a vein, is to be determined by the rules announced by the courts in the adjudicated cases, which have been fully presented in preceding articles, and need not here be repeated. A former statute of Montana required the discovery shaft to disclose at least one wall of the vein, but this has since been repealed. In construing the provisions of the Colorado statute providing for development by adit, which in mining parlance is an opening on and along the vein used for drainage, the supreme court of Colorado has held, that it was the legislative intention to substitute horizontal development in and along the lode for ten feet, in lieu of a discovery shaft of that depth, and that the distance 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." 1 See, ante, ? 344. 2 See, ante, ?? 286-301. Foote v. National M. Co., 2 Mont. 402; O'Donnell v. Glenn, 8 Mont. 248. 5 Electro-Magnetic M. & D. Co. v. Van Auken, 9 Colo. 204; Craig v. Thompson, 10 Colo. 517, 526. ARTICLE V. THE PRELIMINARY NOTICE AND ITS POSTING. 350. Local customs as to prelimi- | nary notice, and its post- 2351. State legislation requiring 352. First group. 353. Second group. 2354. Third group. 355. Liberal rules of construction applied to notices, 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. 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 discoverer. 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 Yale on Mining Glaims and Water Rights, p. 78; J. Ross Browne's Mineral Resources, 1867, pp. 236-242; Gleeson v. Martin White M. Co., 13 Nev. 450. 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. The locator could hold but one vein,' 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.2 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 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 do 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. 2351. State legislation requiring the posting of notices States grouped.-There are no state statutes requiring the posting of any notice whatever in either. California, Utah, Washington, or Nevada. In these states the subject is left entirely to district regulation, in the absence of which no posting is required, although, as heretofore indicated, it is the universal custom to initiate the right by placing on the ground a preliminary or discovery notice. For the purpose of disclosing the nature of the legisla tion on this subject in the other precious-metal-bearing 1 Eureka Case, 4 Saw. 302, 323; Eclipse G. & S. M. Co. v. Spring, 59 Cal. 304. 2See, ante, 2 58. See, ante, 22 70, 71. 'Haws v. Victoria C. M. Co., 160 U. S. 303; Gird v. California Oil Co., 60 Fed. 531, 536; Book ". Justice M. Co., 58 Fed. 106, 115; Allen v. Dunlap, 24 Ore. 229; Carter v. Bacigalupi, 83 Cal. 187, 192. 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 postedone a preliminary, or discovery notice, the other conforming to the certificate which must ultimately be recorded. 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; (46) 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.? North Dakota3 and South Dakota1 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. Oregon requires a notice to be posted on the lead or vein, "with names attached." Nothing is specified as to the contents of the notice." 4 Comp. Laws of Dakota, 1887, 2001. Adopted by South DakotaLaws of 1890-91, ch. cv., 21. 5 Hill's Annot. Laws, 1887, 3828. |