Argentine-Terrible' cases, where the crossed side lines. were parallel, we do not see why the vein could not be followed on its downward course throughout its entire depth, between vertical planes drawn downward through the side-end lines, produced indefinitely in their own direction. If the side-end lines are not parallel, as indicated in figure 22, and the dip of the vein is towards their convergence, these lines may be extended in their own direction until they meet, and the locator may pursue the vein in depth to the vertical line of junction between the two planes. If the dip is in the direction of the divergence, there would certainly be no extralateral right. The consideration, however, of this character of cases, together with those where a vein crosses one end and one side line, will be deferred until we reach the subject of extralateral rights.

ARTICLE VII. THE MARKING OF THE LOCATION ON THE

SURFACE.

2371. Necessity for, and object of, 374. State statutes defining the character of marking.

marking.

372. Time allowed for marking.

373. What is sufficient marking

under the federal law.

2375. Perpetuation of monuments.

2371. Necessity for, and object of, marking.—The Revised Statutes of the United States' contain the mandatory provision, that the "location must be distinctly marked

upon the ground so that its boundaries may be readily "traced." There is no escape from this requirement. While it is possible that state statutes or local district regulations may particularize as to the character of the marking, they cannot dispense with the necessity for compliance with the law of congress. While, as we shall hereafter point out, time is allowed within which to establish the 222324.

1122 U. S. 478.

3

boundaries, until this is done the location is not complete.' The requirement is an imperative and indispensable condition precedent of a valid location, and is not to be "frittered away by construction."" After the discovery, it is the main act of original location. This was the rule under the Spanish and Mexican law. The object of the law in requiring the location to be marked on the ground is, to fix the claim, to prevent floating or swinging, so that those who, in good faith, are looking for unoccupied ground in the vicinity of previous locations may be enabled to ascertain exactly what has been appropriated, in order to make their locations upon the residue. It also operates to determine the right of the claimant as between himself and the general government.

372. Time allowed for marking.-In the absence of state legislation or district regulation, it has been held, in California, that while a party in actual possession, proceeding with diligence to mark his boundaries, would be protected as against a stranger attempting to relocate, yet, strictly speaking, no time is allowed to the locator to complete his location by marking it on the surface. This view is also adopted by the supreme court of Oregon.s

But, as heretofore indicated, the circuit court of appeals for the ninth circuit, upon the same state of facts presented in one of the California cases,10 declines to accept the

'Belk v. Meagher, 104 U. S. 279; Strepey v. Stark, 7 Colo. 614; Garfield M. & M. Co. v. Hammer, 6 Mont. 53; Gilpin County M. Co. v. Drake, 8 Colo. 586, 589; Sweet v. Webber, 7 Colo. 443.

2 Gleeson v. Martin White M. Co., 13 Nev. 442, 456.

Donahue v. Meister, 88 Cal. 121, 131.

4 United States v. Castillero, 2 Black, 17; Gonu v. Russell, 3 Mont. 358. Gleeson v. Martin White M. Co., 13 Nev. 442, 462; Patterson v. Tarbell (Ore.), 37 Pac. 76, 78; Gird v. California Oil Co., 60 Fed. 531, 536.

Pollard v. Shively, 5 Colo. 309, 317. See, also, Drumond v. Long, 9 Colo. 538.

Newbill v. Thurston, 65 Cal. 419; Gregory v. Pershbaker, 73 Cal. 109; Pharis v. Muldoon, 75 Cal. 284. By act passed in this state in 1897, sixty days from date of discovery are allowed for this purpose.

& Patterson v. Tarbell (Ore.), 37 Pac. 76.

9 See, ante, 2 339.

10 Newbill v. Thurston, 65 Cal. 419.

doctrine of the California courts,' but follows the rule announced by the supreme courts of Nevada" and Idaho,3 and the manifest intent of the law as suggested by the supreme court of the United States and by the courts of last resort in Colorado and South Dakota. It is unnecessary to here repeat what we have said on this subject in a preceding section. For the reasons therein suggested, we are of the opinion that the rule announced in California is opposed to both the spirit of the law and the weight of authority.

373. What is sufficient marking under the federal law. As noted in the succeeding section, some of the states have enacted laws defining the character of monuments, or marks, to be placed on the ground. In the absence of such state legislation, or local regulation, what constitutes a sufficient marking is a question to be determined by the jury, according to the circumstances in each particular case.

It naturally depends upon the conformation of the ground. What might be sufficient in the case of a comparatively level or bare surface might not answer the requirements of the law in a mountainous region where the hills are precipitous or the surface covered with timber or undergrowth."

In this view of the law, adjudicated cases are not often of controlling weight. They depend for their value as precedents upon the reasoning of the courts and the similarity as to facts existing in the case to which they are sought to be applied.

While the commissioner of the general land office has

Doe v. Waterloo M. Co., 70 Fed. 455, affirming 55 Fed. 11.

2 Golden Fleece M. Co. v. Cable Cons. M. Co., 12 Nev. 312, 329; Gleeson

v. Martin White M. Co., 13 Nev. 442.

* Burke v. McDonald, 2 Idaho, 646.

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

5 Murley v. Ennis, 2 Colo. 300; Patterson v. Hitchcock, 3 Colo. 533.

6 Marshall v. Harney Peak Tin M. Co., 1 S. Dak. 350.

7 See, ante, 339.

Taylor v. Middleton, 67 Cal. 656; Russell v. Chumasero, 4 Mont. 309; Anderson v. Black, 70 Cal. 226; Du Prat v. James, 65 Cal. 555.

9 Book v. Justice M. Co., 58 Fed. 106, 113.

FF

advised the erection of posts at the corners, and the erection of a signboard at the location point, the law may be satisfied by something less.1

We have collated the following examples, wherein the marking in the manner designated was held to satisfy the law:

In a district where the extent of a claim on each side. of the center line is established by local rule, it has been said, that the object of the law is attained by marking this center line; that a man of common intelligence acquainted with the customs of the country, seeing the discovery monument, the preliminary posted notice, and the stakes marking this center line, would be informed by the rules of the district and the laws of the land that the boundaries of the claim were formed by lines parallel to the center line, at the distance prescribed by local rules, and by end lines at right angles thereto. With this knowl edge, he could easily trace the boundaries and ascertain exactly where he could locate with safety.2

Judge Sawyer held, that the sinking of a discovery shaft, posting a notice thereon, and placing a monument and post at one extremity of the linear measurement, was a compliance with the law.3

We think these cases stretch the law to the utmost limit of liberality. It is almost a return to the primitive rules, prevalent when the lode was the principal thing located and the surface a mere incident, when the locator could hold but one vein, and his rights as to that vein were not defined by surface boundaries.'

Under the existing law, a grant of the surface is sought, and the rights on the discovered lode, as well as all others whose apices may be found therein, are defined exclusively by the form of the location and the direction of the boundary

1 Gleeson v. Martin White M. Co., 13 Nev. 442, 462.

2 Id. 442, 463. See, also, Mt. Diablo M. & M. Co. v. Callison, 5 Saw. 439, 449. 3 North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 311.

*See, ante, 58.

lines. Such being the case, it would seem that the posted notice, serving a temporary purpose,' constitutes no part of the marking, which succeeds its posting. What the existing law evidently contemplates is, physical evidence on the ground of marks which will enable one to trace the lines on the surface-not a notice indicating where the locator may place them.

Posted notices may be an aid in determining the situs of monuments, but they cannot be substituted for the markings.

In many cases, stakes driven into the ground are the most certain means of identification."

Fencing is not necessary; in fact, where in California. the early occupants inclosed their ground with substantial inclosures, it was an open invitation for prospectors to enter, as it indicated a holding for agricultural purposes.

Stakes firmly planted in the ground, marked as corner stakes, with stone mounds placed around them, which stakes and mounds were found by the court to be " promi"nent and permanent monuments," were held to justify the legal conclusion, that the location was distinctly marked on the ground so that the boundaries could be readily traced.'

Stakes and stone monuments at each corner of the claim, and at the center of each of the end lines, is, according to the supreme court of Nevada, as much as has ever been required under the most stringent construction of the law; 5 and yet there are states which require eight posts and monuments, the additional two being placed at the center of the side lines.

A location marked by a discovery monument, on which

2 Hammer v. Garfield M. & M. Co., 130 U. S. 291, 299.

3 Rogers v. Cooney, 7 Nev. 215, 219.

4 Du Prat v. James, 65 Cal. 555; Gird v. California Oil Co., 60 Fed. 531, 537; Book v. Justice M. Co., 58 Fed. 106.

5 Southern Cross G. & S. M. Co. v. Europa M. Co., 15 Nev. 383. See, also, Souter v. Maguire, 78 Cal. 543; Book v. Justice M. Co., 58 Fed. 106; Howeth v. Sullenger, 113 Cal. 547.