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in the first instance, of the ground claimed, regardless of overlapping surfaces or interference with prior surveys or locations. Relative rights arising out of these conflicts are frequently not determined until after long litigation. Therefore, there would be but little use in compelling the erection of indestructible monuments for the purpose of marking the extent of the ground claimed. Ordinary prudence will suggest to the locator the advisability of preserving his marks. But the law does not require it. Therefore, it has been held, that where a mining claim is once sufficiently marked on the ground, and all other necessary acts of location are performed, a right vests in the locator, which cannot be divested by the subsequent obliteration of the marks or removal of the stakes without the fault of the locator.1

The supreme court of Colorado suggests a sensible exception to this rule: Where there is a variation between the calls of the recorded location certificate and the monuments established on the ground, the locator, in order to avail himself of the rule of law which gives controlling effect to the monuments as they were placed on the ground, must keep up his markings. The reason given in support of this is, that as the erroneous record fails to give constructive notice, if the monuments are swept away, no search, no exercise of prudence, diligence, or intelligence, would advise the subsequent locator of the extent and limits of the prior appropriation, and this is one of the principal objects of marking.

1Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 110; Book v. Justice M. Co., 58 Fed. 106, 114; McEvoy v. Hyman, 25 Fed. 596, 598.

"Pollard v. Shively, 5 Colo. 309, 318.

ARTICLE VIII. THE LOCATION CERTIFICATE AND ITS

CONTENTS.

379. The location certificate - Its purpose.

380. State legislation as to contents of location certificate.

381. Rules of construction applied.

monuments on the ground.
383. "Natural objects " and "per-
manent monuments."

2384. Effect of failure to comply
with the law as to contents
of certificate.

382. Variation between descrip- 385. Verification of certificates. tive calls in certificate and

2379. The location certificate -Its purpose.-In speaking of the "location certificate," we have no reference to the preliminary posted notice of discovery and intention to locate, discussed in a preceding article,' except in so far as such posted notice forms the basis of the recorded notice, as it does in the territories of Arizona and New Mexico." In this latter class of cases, the posted notice performs the function of a certificate of location, as it is termed in most. states. This certificate is also equivalent in its legal effect to the "declaratory statement" provided for by the laws of Montana."

By the term "certificate of location," we mean the instrument prepared by the locator after the completion of the development work and the marking of his location, which certificate is required by the state laws or local rules to be recorded. This instrument when recorded is a statutory writing affecting realty, being, in the states or localities where it is required, the basis of the miner's "right of exclusive possession" of his mining location granted by the laws of congress. It is the first muniment of his paper title, upon the record of which proceedings for patent are based, and as recorded is intended to impart constructive notice to all subsequent locators of the exist ence of the claim, its precise locality and extent, as the marking of the location on the ground is intended to

1 See, ante, 22 350-356.

2 See, ante, 353.

3 See, post,

380.

Pollard v. Shively, 5 Colo. 309, 312.

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impart actual notice of these facts. The preliminary posted notice performs a temporary function; the recorded certificate a more permanent one. This recorded certificate, notice, or declaratory statement, by whatever namę it may be called, is the genesis of the locator's paper title.

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The congressional laws do not in terms require any such certificate, but they provide, that where a record of the location is made, such record "shall contain the name or names of the locators, the date of the location, and such "a description of the claim or claims located, by reference "to some natural object or permanent monument, as will "identify the claim." In the absence of a state law or local rule requiring a record to be made, congress has not undertaken to prescribe the nature of the notices which a miner may be compelled by such laws or rules to post, or which he may see fit to post on his own motion. It is only when such notice, or its equivalent, is required to be recorded that the provisions of the federal law become mandatory."

Where state laws or local rules require a record to be made, the recorded instrument must contain at least the elements provided for by the Revised Statutes.3

A few of the states provide for a record, but do not prescribe the contents of the notice or certificate to be recorded. In such cases, compliance with the federal law is all that is necessary. Most of the states and territories, however, within the purview of this treatise, have provided by law for the contents of such instruments. Before

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2 Gleeson v. Martin White M. Co., 13 Nev. 443, 464; Golden Fleece M. Co. v. Cable Cons. M. Co., 12 Nev. 312; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 112; Poujade v. Ryan, 21 Nev. 449; Doe v. Waterloo C. M. Co., 55 Fed. 11; Erhardt v. Boaro, 113 U. S. 527.

3 Brown ". Levan (Idaho), 46 Pac. 661; Drummond v. Long, 9 Colo. 538; Faxon v. Barnard, 4 Fed. 702; Gilpin County M. Co. v. Drake, 8 Colo. 586; Darger v. Le Sieur, 8 Utah, 160; S. C. on rehearing, 9 Utah, 192; Dillon v. Bayliss, 11 Mont. 171; Russell v. Chumasero, 4 Mont. 309; Garfield M. & M. Co. v. Hammer, 6 Mont. 53; Hammer v. Garfield M. & M. Co., 130 U.S. 291; Poujade v. Ryan, 21 Nev. 449; Gleeson v. Martin White M. Co., 13 Nev. 443.

proceeding with a discussion of the nature of these certifi cates, it is advisable to present an outline of the state legislation upon the subject.

2380. State legislation as to contents of location certificate:

Colorado. The location certificate must contain: (1) name of the lode; (2) name of locator; (3) date of location; (4) number of feet in length claimed on each side of the center of discovery shaft; (5) the general course of the lode;1 a description of the claim sufficient to identify it."

(6)

California. By an act passed March 1897, a prelimin ary notice is required to be posted and recorded within twenty days from the date of discovery, and within sixty days from such discovery a final certificate of location must be recorded in the county recorder's office. Such certificate shall state: (1) the name of the lode or claim; (2) the name of the locator, or locators; (3) the date of discovery and posting of the preliminary notice, which is deemed the date of location; (4) a description of the claim, defining the exterior boundaries as they are marked upon the ground, and such additional description by reference to some natural objects or permanent monument as will identify the claim; (5) a statement that it is the final or completed notice of location, and that the development work required by the act has been done. The certificate must be dated, signed, and verified by oath of the locator, or some one in

his behalf.3

one

Idaho. The laws of Idaho provide for two notices : preliminary, to be posted only; the other a final one, to be both posted and recorded. The final notice must contain: (1) name of lode; (2) name of locator; (3) date of discov ery; (4) direction and distance claimed along the ledge from the discovery; (5) distance claimed on each side of the middle of the ledge; (6) distance and direction from

3 'Mills' Annot. Stats., 3150.

2

" Id., 3151.

For full text of the act, see
See, ante, 2 354.

appendix.

discovery monument to some natural object by which the claim may be identified; (7) name of mining district, county, and state.1

Arizona.-The notice or certificate of location must contain: (1) name of the claim; (2) name of locator; (3) date of location; (4) number of feet in length, and number of feet claimed on each side of discovery shaft lengthwise of the claim; (5) general course of the lode; (6) the locality of the claim with reference to some natural object or permanent monument as will identify the claim."

Montana.-The instrument which is to be recorded is called the "declaratory statement." It must contain: (1) name of lode or claim; (2) name of locator; (3) date of location, and such a description with reference to natural objects or permanent monuments as will readily identify the claim; (4) the number of linear feet claimed along the course of the vein each way from point of discovery, with the width on each side of the center of the vein, and the general course of the vein as near as may be; (5) dimensions and location of discovery shaft, or its equivalent, sunk upon the lode; (6) location and description of each corner, with the markings thereon. The declaratory statement must be verified by the oath of a locator, or one of the locators, and, in case of a corporation, by a duly authorized officer.3

Nevada. There is no legislation on the subject in Nevada.

New Mexico.-A copy of the posted notice is required to be recorded. This must contain: (1) the names of the locators; (2) the intent to locate the claim; (3) a description by reference to some natural object or permanent monument.1

1 Laws 1895, p. 25, 22, 4.

2 Laws 1895, p. 53, ? 1.

3 Rev. Code 1895, 2 3612.

Comp. Laws 1884, 1566. See, ante, 353.

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