was placed the notice of location, and by a stake at each of three of the corners of the claim, and a monument at the center of each end line, leaving one corner unmarked, was held to be sufficient to comply with the law.'

The omission to mark one end of a claim where the ground was so inaccessible that the surveyor when surveying for patent was compelled to determine the position of the end line by triangulation, the remainder of the claim being marked by stakes and mounds at the accessible corners, the center of one end line, a discovery monument and blazed trees on the center line, was held not to be an evasion of the law. Under the circumstances, the marking was sufficient. Posting notices on trees, one at each end of the claim, or posting a notice in the center of the claim without any attempt at marking, is, of course, wholly insufficient. These notices would serve the purpose for which they were originally intended, as notices of intention to locate, but would only preserve the right for a reasonable time to enable the locator to mark his boundaries.

6

As intimated in a previous section, the marks, stakes, or monuments should be within the statutory limit as to area; yet this rule is to be understood in the light of the doctrine, that excessive locations are not wholly void, but are invalid only as to the excess. They should also be placed upon the public domain, and not upon the property of others; but if within the statutory limit, the placing of such marks on ground previously appropriated will not absolutely vitiate the marking.

In so far as the ground taken is vacant, each location, if properly made in other respects, will be valid.?

1 Warnock v. De Witt, 11 Utah, 324.

2 Eilers v. Boatman, 3 Utah, 159; affirmed, 111 U. S. 356.

3 Holland v. Mt. Auburn G. Q. M. Co., 53 Cal. 149, 151.

4 Gelcich v. Moriarity, 53 Cal. 217; Morenhaut v. Wilson, 52 Cal. 263, 269; Doe v. Waterloo M. Co., 70 Fed. 455.

Leggatt v. Stewart, 5 Mont. 107, 109; Hauswirth v. Butcher, 4 Mont. 299. See, ante,

362.

Doe v. Tyler, 73 Cal. 21; West Granite Mt. M. Co. v. Granite Mt. M. Co., 7 Mont. 356.

1

The boundary lines of the senior locator, or prior appropriator, will, however, control the rights of the junior, who will ultimately be compelled to rectify his markings so as to respect such boundaries. A failure to comply with the law as to the marking within a reasonable time after discovery, where there is no local rule or state statute fixing the time, or within the time fixed by statute or local rule, renders the ground subject to relocation; or, in case of a relocation, the right of the relocator is lost if he fails to mark his boundaries prior to the resumption of work by the former owner, always assuming that the failure to perfect the location is not caused by the fraud or tortious acts of the relocator. Failure to mark the boundaries within. the time allowed by law, or prescribed by state or local regulation, cannot be taken advantage of by a subsequent locator, if the prior locator perfects his location in advance of any intervening rights. A location when perfected relates back to the discovery. Boundaries once established. cannot be changed to the detriment of intervening locators."

374. State statutes defining character of marking. -There is no legislation upon the subject of marking the location in either Nevada, Oregon, Washington, or Utah. The following statutory requirements are found in the remaining precious-metal-bearing states and territories:

Colorado. Before filing the certificate of location for record (within three months after discovery), the surface boundaries must be marked by six posts, hewed or marked on the side, or sides, in toward the claim, and sunk into the

1 See, ante, ? 365. p. 476.

* White v. Lee, 78 Cal. 593; Funk v. Sterrett, 59 Cal. 613.

3 Gonu v. Russell, 3 Mont. 358, 363; Pharis v. Muldoon, 75 Cal. 284; Holland v. Mt. Auburn G. Q. M. Co., 53 Cal. 149. But see, post, ? 408. 4 Erhardt v. Boaro, 113 U. S. 527; Miller v. Taylor, 6 Colo. 41.

5 North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 314; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 115. See, ante, ? 330.

• Doe v. Waterloo M. Co., 70 Fed. 455; Gregory v. Pershbaker, 73 Cal. 109. 7 O'Reilly v. Campbell, 116 U. S. 418; Golden Fleece M. Co. v. Cable Cons. M. Co., 12 Nev. 312; Croesus M. & S. Co. v. Colorado L. & M. Co., 19 Fed. 78.

8 Mills' Annot. Stats., 3150..

ground, one at each corner and one at the center of each side line. If bedrock prevents the sinking of posts, the boundary may be marked by a pile of stones. Where it is impracticable (because of danger in placing or other reason) to place the post at the proper place, it may be placed at the nearest practicable point, suitably marked to designate the proper place.1

California. Sixty days after date of discovery is allowed for the purpose of marking, but no method of marking, other than that required by the federal law, is prescribed."

Idaho. Within three days from the date of discovery, the discoverer must mark his boundaries by establishing at each corner thereof, and at any angle in the side lines, a monument of any material or form which will readily give notice, which shall be marked with the name of the claim. and the corner, or angle, it represents. If the monument cannot be safely planted at the true angle, or corner, it may be placed as near thereto as practicable, and so marked as to indicate the place of such corner, or angle. If of posts or trees, the monuments must be hewn, and marked upon the side facing discovery, and must be four inches square, or in diameter. All monuments must be four feet high.3

Arizona. Before filing location certificate (sixty days after location), the surface boundaries must be marked by eight substantial posts, projecting at least three 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 and side line thereof."

Montana. No time is specified in the Montana laws within which the marking of the location is to be effected. Ninety days are allowed to sink discovery shaft and record the declaratory statement. The inference is plausible, that the locator should be allowed to complete his development

1 Mills' Annot. Stats., 3153.

2 Act of March, 1897.

3 Rev. Stats., ? 3101, as amended. Laws 1895, p. 27, ? 2.

Rev. Stats. 1887, 2349.

Laws 1895, p. 53. ¿? 3, 4.

1

work before marking his boundaries. In any event, he is allowed a reasonable time. The character of the marking is as follows: 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 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."

New Mexico.- No time is provided within which marking is to be effected. In this respect the laws of New Mexico are the same as Montana. Surface boundaries are to be marked by four substantial posts, or four substantial monuments of stone, set at each corner of the claim. Such posts, or monuments, shall each be plainly marked, so as to indicate the direction of the claim from each monument.3

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." South Dakota.- Same as North Dakota.5

Wyoming. Substantially the same as Colorado."

1 See, ante, 2 372.

2 Rev. Code 1895, 23611..

3 Laws 1889, p. 42, 22.

Rev. Code 1895, 22 1428, 1430, 1431.

5 Comp. Laws of Dak. 1887, 2002. Adopted by South Dakota-Laws

of 1890, ch. cv.

Laws 1888, p. 88, 2 17.

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.

2375. 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.1

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.

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; 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.3

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."4

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,