description of the claim with reference to a natural object or permanent monument, the recorded notice to this extent may be prima facie evidence of its own sufficiency, for the reason, that the statute requires such description to be inserted in the certificate.

The real purpose of the record is to operate as constructive notice of the fact of an asserted claim and its extent. When the locator's right is challenged, he should be compelled to establish by proof outside of the certificate all the essential facts, without the existence of which the certificate possesses no potential validity. These facts once proven, the recorded certificate may be considered as prima facie evidence of such other facts as are required to be stated therein.

ARTICLE X. CHANGE OF BOUNDARIES AND AMENDED LOCATION CERTIFICATES.

2396. Circumstances justifying

change of boundaries.

dependent of state legislation.

397. Privilege of changing bound- 2398. Objects and functions of aries exists in the absence amended certificates. of intervening rights, in

2396. Circumstances justifying change of boundaries.—The difficulties surrounding the locator in determining the precise position of his discovered vein in the earth, the probable course of its apex, and in many instances its width, frequently render it impossible for him to so mark his boundaries within the time allowed by law for that purpose, as to entitle him to the full measure of property rights which the law permits him to acquire as the reward for his discovery. It frequently happens, that the limited extent of surface exploration possible within the periods allowed him does not develop the true conditions. His markings, therefore, are frequently based on erroneous suppositions and wrong theories. While the government is not concerned with the particular individual who is the

recipient of its bounty, and it makes but little difference to it who discovers and develops its mineral resources, its policy is to encourage the search for, and the opening of, mines, and this policy is best subserved by permitting the discoverer to rectify and readjust his lines whenever he may do so without impairing the intervening rights of others.

While the locator marks his boundaries in every instance at his peril, there is no reason why he should be compelled to abide by first impressions, if no one is injured by a subsequent rectification of his boundaries.

It also frequently happens, that at the time a discovery is made, the existence of contiguous prior locations prevents him from giving to his surface that symmetrical form which the law contemplates; or if he makes it in the ideal form, a surface conflict arises, rendering the extent of his rights vague and uncertain. These prior locations are frequently abandoned, and the ground embraced therein becomes subject to reappropriation. As heretofore suggested, when such abandonment or forfeiture becomes effectual, the conflict area does not inure to the advantage of the junior locator.' But the courts uphold the right of the junior under such circumstances to re-form his lines and amend his location so as to include the overlapping surface. Where an application for patent is made, and a survey for that purpose is ordered, the deputy mineral surveyor is controlled by the record of the certificate of location, where one is required, and the markings on the ground, the latter controlling where there is a variation between the descriptive calls of the record and the monuments. While, for the purpose of obtaining parallelism, the lines may be drawn in, so that, as finally surveyed, the

'See, ante, 2 363.

2 See, ante, 2 363.

3 Lincoln Placer, 7 L. D. 81; Rose Lode Claims, 22 L. D. 83; Com'rs' Letter-1 Copp's L. O. 12.

See, ante, 2 382.

5 Doe v. Sanger, 83 Cal. 203, 214; Doe v. Waterloo M. Co., 54 Fed. 935, 940; Tyler v. Sweeney, Id. 284; Last Chance M. Co. v. Tyler, 61 Fed. 557; Philadelphia M. Claim v. Pride of the West, 3 Copp's L. O. 82.

boundaries are approximately within the limits of the surface area as originally claimed, yet no authority is given to extend the surveyed boundaries so as to include area which at the time of the survey is not within the ground actually claimed, or found to be, at least, approximately within the lines connecting the monuments as marked, prior to the order for survey.

It is therefore frequently found necessary to change boundaries before applying for an order for survey; and when so changed, an amended location is made, and an amended certificate is prepared and recorded, which, if free from conflicts with prior locators, or those whose rights have supervened since the perfection of the original location, is just as valid as if made in the original instance.

Those locating subsequently to the perfection of the amended location are not injured, and have no right to complain.1

2397. Privilege of changing boundaries exists, in the absence of intervening rights, independent of state legislation. In some of the states and territories, amended locations and certificates are the subject of statutory regulation. This is the case in Colorado, Idaho, Arizona, New Mexico, North Dakota, South Dakota, and Wyoming. The provisions in all these states are on parallel lines with those of Colorado, which are as follows:

6

3

"If, at any time, the locator of any mining claim here"tofore or hereafter located, or his assigns, shall apprehend "that his original certificate was erroneous, defective, or that "the requirements of the law had not been complied with "before filing, or shall be desirous of changing his surface

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

Mills' Annot. Stats., ? 3160.

3 Laws 1895, p. 27, 2 5.

Id., p. 54. 7.

5 Laws 1889, p. 42, ? 4.

Rev. Code 1895, 2 1437.

7 Comp. Laws Dak. 1887, 2008. Adopted by South Dak.- Laws 1890,

ch. cv.

Laws 1888, p. 85, 2 17.

"boundaries, or taking in any part of an overlapping claim "which has been abandoned, or in case the original certifi"cate was made prior to the passage of this law, and he "shall be desirious of securing the benefits of this act, such locator, or his assigns, may file an additional certificate, subject to the provisions of this act; provided, that such "relocation does not interfere with existing rights of others "at the time of such relocation, and no such relocation, or "other record thereof, shall preclude the claimant, or claimants, from proving any such title, or titles, as he, or they, "may have held under previous location."

But in the nature of things, this right exists throughout the mining regions, independent of statutory regulations. The supreme court of California, a state which has no legislation on the subject, has held, that if locators have any apprehension as to the sufficiency of their original location, there is no reason why they should not be permitted to modify or amend it.1

Of course, the alteration of boundaries, by taking in new territory and filing amended certificates where the antecedent one is absolutely void, cannot be permitted to the prejudice of intervening rights. But with this qualification, the right to change boundaries and rectify lines. exists throughout the mining regions.

In dealing with this subject in the future, we shall assume the correctness of this theory, and, therefore, that the decisions of the courts in states where laws of this character exist, so far as underlying principles are discussed therein, may be resorted to as precedents in states where legislation on the subject is wanting. We think the circumstances set forth in the preceding section justify this assumption.

2398. Objects and functions of amended certificates. -Where a change of boundaries is sought, the acts necessary to accomplish the desired result are specified by statute 1 Thompson v. Spray, 72 Cal. 528, 529.

2 Seymour v. Fisher, 16 Colo. 188; Omar v. Soper, 11 Colo. 380; Hall v. Arnott, 80 Cal. 348; Tombstone Townsite Cases, 15 Pac. 26; Wight v. Tabor, 2 L. D. 738.

in the states enumerated in the preceding section. Where there is no 'statute, in re-marking of the boundaries and preparing and recording the certificate the same formalities should be observed as in the case of an original location.

In speaking of the objects and functions of additional or amended certificates of location, the supreme court of Colorado thus states its views:

"The evident intent of the statute is, that the additional "certificate shall operate to cure defects in the original, and thereby to put the locator, where no other rights have "intervened, in the same position that he would have occupied if no such defect had occurred. Such intent is "in accord with the principle of all curative provisions of "law."

1

Such a certificate may be used as evidence, although the original may be incomplete or imperfect, upon the theory, that the amended certificate relates back to a right of location accruing by virtue of the prerequisite discovery and an attempted compliance with the law.2

A distinction is drawn between cases where the original certificate is absolutely void, or where the amended certificate seeks to appropriate new and additional ground, and one where the original is simply defective. In the former class of cases, a proper relocation or intervening appropriation cuts off the right of amendment. In the latter, where the object is to simply cure imperfections and obvious defects, the amended certificate will relate back to the original in spite of intervening locations. This is equivalent to the doctrine, that mere imperfections in location certificates do not render them void so as to make the ground subject to relocation. Where new territory is added by amendment, it cannot be said, that as to such addition the rights relate back to the original location. That is not the intent of the law. As to such new territory, the amended certificate 1Strepey v. Stark, 7 Colo. 614, 620.

2 McGinnis v. Egbert, 8 Colo. 41, 45; Moyle v. Bullene, 7 Colo. App. 308; Becker v. Pugh, 9 Colo. 589.

3 McEvoy v. Hyman, 25 Fed. 596; Tombstone Townsite Cases (Ariz.), 15 Pac. 26; Hall v. Arnott, 80 Cal. 348.