twenty acres by a single location. During the period when rights were governed exclusively by local rules, in certain districts the number of claims which one might locate and hold at one time within that particular district were defined. But there is no trace of this found in the legislation of congress.

ARTICLE VI. THE MARKING OF THE LOCATION ON THE

GROUND.

2454. Rule as to marking bounda- 2455. State legislation as to markries of placer claims in absence of state legislation.

ing boundaries of placer claims.

ex

454. Rule as to marking boundaries of placer claims in absence of state legislation.-We have plained in a previous section the necessity for, and object of, marking lode locations upon the ground.' While the surface boundaries of a placer claim do not perform all the functions of end and side lines of lode locations, nevertheless the marking of a placer location on the ground is just as essential as in the case of lodes. Where the location is upon unsurveyed land, or if upon surveyed land is of such a character that it is not required to conform to the public surveys, it has never been doubted but that this allimportant act of location should be performed, and that such locations should be marked with the same care as in lode locations. Where, however, placer ground is located according to subdivisions of the public surveys, it has been contended that such marking is not necessary, that a description in the posted or recorded notice by fractional subdivisions of the section, designating the township and range, serves the purpose of the law, and dispenses with this requirement as to marking on the

and

ground. This view has found support in a decision by Assistant Secretary Reynolds, wherein he holds, referring to the

language of section twenty-three hundred and twenty-nine of the Revised Statutes, that the "like circumstances and "conditions" apply to discovery, location, and where the location is made on unsurveyed lands, marking the boundaries of the same, as of a lode claim.

He says: "It does not, in my judgment, mean that "when the placer is located on surveyed lands it is necessary to mark the boundaries. There is no purpose that

can be subserved by so doing.

The public surveys are

as permanent and fixed as anything can be in that line, "and any fractional part of a section can be readily found, "and its boundaries ascertained, by that method, for all "time to come, and is necessarily more stable and enduring than marking it by perishable or destructible stakes

The supreme court of Montana inclines to the same view.2

But it seems to us that these decisions overlook several important matters:

(1) In the absence of any state legislation or local rule, no notice need be either posted or recorded. What evidence is there on the ground, or elsewhere, of any appropriation which will warn off subsequent intending locators, if there are no marks to indicate it?

(2) Minor subdivisions are not surveyed in the field, but are protracted in the surveyor-general's office on the township plats, and the lines are wholly imaginary.5

It seems to us that the supreme court of California presents the logical view of the law. Said that court:

"The construction contended for does not seem to us to "be in harmony with the general purpose of the act. The "purpose of the requirement, that the claimant shall mark "the boundaries of his claim, is to inform other miners as "to what portion of the ground is already occupied. The men for whose information the boundaries are required

'Reins v. Murray, 22 L. D. 409.

2 Freezer v. Sweeney, 8 Mont. 508.
See, ante, 2 350.

See, ante, 273.

5 See, ante, 106, p. 120.

"to be marked, wander over the mountains with a very "small outfit. They do not take surveyors with them to "ascertain where the section lines run, and ordinarily it "would do them no good to be informed that a quarter"section of a particular number had been taken up. They "would derive no more information from it than they "would from a description by metes and bounds, such as would be sufficient in a deed. For the information "of these men, it is required that the boundaries shall be distinctly marked upon the ground.' The section lines "may not have been 'distinctly' marked upon the ground, "or the marks may have become obliterated by time or "accident. And to say, that the mere reference to the legal subdivision is of itself sufficient, would, in our opinion, defeat the purpose of the requirement."

66 6

The views of the supreme court of Colorado are in harmony with those of the California courts."

The supreme court of Montana has held, that a separate marking of the boundaries as to each twenty-a cre tract within a larger area, located by an association of persons, is not necessary. It is sufficient if the exterior boundaries of the larger area be marked.3

We think we are justified in the conclusion, that placer locations must be marked on the ground with the sa me care, and for the same object and purpose, as in case of lo de locations.

2455. State legislation as to marking boundaries of placer claims. There is no legislation on the subject of marking placer locations in either Oregon, Nevada, South Dakota, North Dakota, Washington, or Utah. As to Arizona and New Mexico, it is difficult to determine whether their laws were intended to apply to placers, or not. Of course, the necessity for marking arises from the terms of federal law. State or territorial legislation may determine the character of marking within reasonable limits, but cannot dispense with the requirement of the federal laws.

1 White v. Lee, 78 Cal. 593, 596; followed in Anthony v. Jillson, 83 Cal. 296.

2Sweet v. Webber, 7 Colo. 443.

3 McDonald v. Montana Wood Co., 14 Mont. 88.

Colorado requires the boundaries to be marked prior to recording the certificate of location (thirty days from discovery) by placing a substantial post at each angle of the claim.'

California allows thirty days from date of discovery to complete the marking, "so that its boundaries can be read"ily traced."2

3

Idaho and Montana' require the same marking as in case of lode claims.

Wyoming requires surface boundaries to be designated before recording the location certificate (ninety days from discovery), by substantial posts or stone monuments at each corner of the claim."

ARTICLE VII. THE LOCATION CERTIFICATE AND ITS RECORD.

459. State legislation concerning location certificates and their record.

459. State legislation concerning location certificates and their record. As in the case of lodes, certificates of location and their record' are the subject of state or local regulation. Where such certificates are required, and their record is provided for, the same general rules apply as in the case of lodes. Where a record is made necessary, the requirements of the federal law as to contents of such record are mandatory. There are no specific provisions on the subject in either Washington, Utah, South Dakota, North Dakota, Oregon, Nevada, Arizona, or New Mexico. It is possible that in the two territories and in Nevada the laws governing lode claims may be construed to cover placers, but it is extremely doubtful if such is the case. Other states make special provision for this class of cases.

1 Mills' Annot. Stats., 3136.
2 Act of March, 1897, ? 4.

3 Laws of 1895, p. 25, ? xii.

Rev. Code 1895, 23611.

5 Laws of 1888, pp. 88-90, ? 22.
See, ante, 2 379.

7See, ante, ?? 273, 328.

8 See, ante,

273.

Colorado. Within thirty days from the discovery a certificate of location must be recorded in the county recorder's office, which must contain: (1) the name of the claim designating it as a placer;. (2) name of locator; (3) date of location; (4) number of acres or feet claimed; (5) description of claim by reference to natural objects or permanent monuments.1

California. Within thirty days from the date of discov ery, the discoverer shall record the notice, or certificate of location (which must be similar to the posted notice)," in the office of the county recorder of the county in which the discovery is made.3

Idaho.-Every placer claim must be recorded within thirty days from the time of location, in the district in which the same is situated, or in the office of the county recorder. The location notice must contain: (1) date of location; (2) name of locator; (3) name and dimensions of the claim; (4) such description of locality, by reference to natural landmarks or fixed objects and contiguous claims, if any, as to render the situation of the same reasonably certain from the letter of the notice itself. An affidavit of one of the locators must be attached.*

Wyoming. Within thirty days after date of discovery, the location certificate must be recorded with the district recorder, if there be one, and within ninety days from such discovery a record must be made with the county recorder. The certificate must contain: (1) the name of the claim, designating it as a placer; (2) the name of the locator; (3) date of location; (4) number of feet or acres claimed; (5) a description of the claim by designation of such natural or fixed objects as shall identify the claim beyond question."

Montana. The requirements in Montana are substantially the same as in case of lode locations, substituting

'Mills' Annot. Stats., ? 3136.

2 See, ante, 2 380.

3 Act of March, 1897, 24.

*Laws of 1895, p. 25, ¿? xii., xñi.

5 Laws of 1888, pp. 89-90, 22.

6

See, ante, & 380, p. 493.