character noted is found, it may be said, that forfeitures are not favored by the courts, and where a location is made in good faith, and all the essential requirements are complied with, instances are not frequent where the miner is deprived of substantial rights for failure to strictly comply with the letter of the law.

385. Verification of certificates.- Three of the states, California,' Idaho, and Montana, require the certificate of location, or declaratory statement, to be verified by the oath of a locator. In a preceding section we have suggested that these provisions may be repugnant to the federal law, as imposing unnecessary and onerous burdens upon locators. We have there shown, that the supreme court of Montana, after doubting the validity of the provision, has upheld its validity. We are not aware of any ruling on the subject in Idaho. Where the law makes notices of this character prima facie evidence of the facts therein recited, it would seem that the formality of an oath is not an unreasonable requirement. In many states, instruments affecting title to real property are required to be verified before they are entitled to record, and all states require some form of acknowledgment to such class of documents. We do not see upon principle, why the law, as found in California, Montana, and Idaho, should not be upheld.

ARTICLE IX. THE RECORD.

389. Time and place of record. 2390. Effect of failure to record

within the time limited.

2391. Proof of record.

392. The record as evidence.

As heretofore fre

2389. Time and place of record. quently indicated," in the absence of a state law or local rule requiring it, there is no necessity for recording any notice or certificate in connection with the acquisition of title to public mineral lands by location.

1 Act of March, 1897.

3 See, ante, ?? 273, 328.

2 See, ante, 2 251.

But as observed in a preceding section,' the popular notion is, that notices of location should be recorded somewhere, and although in the absence of a law or rule so declaring, a failure to record is not accompanied with any loss of right, yet the universal rule is, to file the notice of location with the county officer charged by the state or territorial laws with the duty of registering instruments affecting title to real estate.

Where the law or regulation requires a record to be made, but does not specify the time within which it is to be effected, we think a reasonable time should be allowed, following the rule heretofore announced as to the time of performance of other acts of location. What constitutes a reasonable time depends upon the circumstances surrounding each particular case, such as the distance from the discovered mine to the place of record, and the means of communication between the two points. For the most part, the states and territories wherein laws exist requiring a record to be made, provide for the time within which the notice or certificate is to be lodged with the recording officer. Colorado, allows ninety days; California,1 North Dakota, and South Dakota, sixty days, computed from date of discovery; Idaho,' ninety, and Arizona, sixty days from date of location, Montana and New Mexico,10 ninety, and Oregon," thirty days from posting the preliminary notice referred to in a preceding article." In Wyoming, if the discovered claim is within an organized district, two

1See, ante, 273.

2 See, ante, 2 339.

3 Mills' Annot. Stats., 2 3150.

4 Act of March, 1897.

5 Rev. Code 1895, 1428.

6 Comp. Laws Dak. 1887, ?? 1999, 2000. Adopted by South Dak.-Laws 1890, 1.

Laws 1895, p. 25, ? 4.

records are required-one with the district recorder, within ninety, the other with the county clerk, within one hundred and twenty days from the date of discovery.

Washington authorizes the election of recorders by mining districts, but its laws are silent, both as to contents of the notice and the time within which it is to be recorded.

Nevada provides for the recording of the original with the district recorder, and a duplicate with the county recorder.'

Until the passage of a recent act by the legislature of California, it was customary in that state to record in the county recorder's office, as well as with the district recorder, if there were one. In the absence of a written district rule, a custom as to place of record might be shown. But such custom, to be binding, ought to be so well known, understood, and recognized in the district, that locators should have no reasonable ground for doubt as to what was required as to place of record. But the subject of recording is now regulated by statute. Recording in districts is now prohibited.3

2390. Effect of failure to record within the time limited. The mere failure to record a notice, certificate, or declaratory statement, within the statutory time does not render the location of the claim invalid, where there are no intervening rights before the record is properly made, if there has been full compliance with the law in all other respects.1

This is but the reiteration of a principle announced in a previous section, that the failure to comply with any of the requirements of the law within the time limited may subject the ground to relocation; that the locator delays the performance of these acts at his peril; but if he complies Stats. 1885, p. 27, ? 1.

2 See, ante, ? 273.

3 Act of March, 1897.

Preston v. Hunter, 67 Fed. 996, 999; Faxon v. Barnard, 4 Fed. 702, 703; Strepey v. Stark, 7 Colo. 614; Craig v. Thompson, 10 Colo. 517.

5 See, ante, 330.

with the law prior to the acquisition of any right by a subsequent locator, no one has a right to complain. The acts when completed will relate back to the inception of the right. Where, however, the requirement as to recording is fixed by local rule, the failure to record will not work forfeiture unless the rule itself so provides.1

2391. Proof of record. Where a state law or local rule requires the certificate to be recorded with a county officer whose duties are defined by statute, such as recorder, clerk, or register of deeds, the record will prove itself, and as a rule, certified copies thereof are admissible in evidence with like effect as the original. But in case of records in the mining districts, the rule is different. Such records do not prove themselves. They must be produced by the proper officer, whose official character must be shown, and the authenticity of such records must be established. Certified copies of such records cannot be admitted in evidence, unless it be first shown that their custodian was empowered under the local rules to give and authenticate such copies.

$ 392. The record as evidence.- Constructive notice by recording is wholly a creature of the statute. A record not provided for by statute or recognized by law gives no notice. Therefore, before a record of a mining location can be introduced in evidence for any purpose, it must appear that it is authorized by law; otherwise, it is irrelevant and inadmissible."

Where such record is authorized, it is prima facie evidence only of such facts as are required by law to be stated therein, provided they are sufficiently stated. A record

1See, ante, 2 274.

2 Roberts v. Wilson, 1 Utah, 292.

Harvey v. Ryan, 42 Cal. 626; Roberts v. Wilson, 1 Utah, 292. See, ante, 272. See, also, Atwood v. Fricot, 17 Cal. 37.

4 Moxon v. Wilkinson, 2 Mont. 421; Golden Fleece M. Co. v. Cable Cons. M. Co., 12 Nev. 312; Chamberlain v. Bell, 7 Cal. 292; Mesick v. Sunderland, 6 Cal. 298, 315; 1 Wharton on Evidence, 3d ed., 2 643.

Strepey v. Stark, 7 Colo. 614; Jantzen v. Arizona C. Co. (Ariz.), 20 Pac. 93.

of a certificate of a location which recites the citizenship of locators, the fact of discovery, and the fact that the location had been marked upon the ground so that the boundaries could be readily traced, is not evidence of any of these facts1 in any of the states or territories, for the simple reason, that no such facts are required to be stated in any of the statutory notices.

Where the right of possession is founded upon an alleged compliance with the law relating to a valid location, all the necessary steps, aside from the making and recording of the location certificate, must, when contested, be established by proof outside of such certificate. The record of the certificate is proof itself of its own performance as one of such steps, and in regular order, generally speaking, the last step in perfecting the location."

While many of the states require the date of the discovery to be stated in the recorded certificate, we do not think that this would be evidence of the fact of discovery. A discovery once proven, such a record would, prima facie, fix the date. The question of discovery is the most important of all the acts required in the proceedings culminating in a perfected location. It is the foundation of the right without which all other acts are idle and superfluous. With the exception of three states (California, Idaho, and Montana), the certificate is executed with no solemnity. It is not either acknowledged or sworn to. It is a mere ex parte declaration in his own behalf of the party most interested. The same may be said of marking the boundaries.

It is quite true, that when a certificate contains a

1 Flick v. Gold Hill & L. M. Co., 8 Mont. 298. Strepey v. Stark, 7 Colo. 614, 619.

3Judge Phillips, in his charge to the jury in Cheesman v. Shreeve, 40 Fed. 787, said, that certificates of location are presumptive evidence of discovery. But in this case, many years elapsed between the original location and the litigation, and the fact of discovery was supported by the testimony of the parties. Under these circumstances the judge held, that every reasonable presumption should be indulged in favor of the integrity of the location. The reasoning, while persuasive so far as this case is concerned, does not militate against the views announced in the text.