and the certificate was admissible in evidence. If other mountain peaks exist in the same vicinity, visible from the same point, or if for any other reason neither of those mentioned in fact served to identify the claim, that was matter for appellant to show by proper proof.

Jackson v. Dines, 13, 90 (1889). "The description of the claim by reference to its direction from mountain peaks,' without naming, or describing them, or stating the distance therefrom, may be insufficient; but the location of the claim is further described as being situated on the Arkansas River, near T. city, that the shaft or cut one hundred feet from the southside line is on the left bank of a small creek called C. Creek; also the bearings of perpendicular falls in said creek from the shaft or cut are stated. The certificate further shows the State, county, and mining district in which the claim is located, and the metes and boundaries thereof." It is not requisite that the markings on the ground which are required by the act of Congress should be described in the record of the claim.

Conner v. McPhee, 1, 73 (1868). A statute provided "all Montana. claims shall be recorded in the county recorder's office

The record need

within ten days from the time of posting notices." not specify the number of feet claimed. It is error to exclude such a record because it does not contain such specification. "Recording a claim is a phrase used among the locators of mining claims,” and at the time this statute went into effect it was not generally considered necessary to record the number of feet claimed.

Russell v. Chumasero, 4, 309 (1882). The record of a mining claim must, under the act of Congress, contain such a description thereof by reference to some natural object or permanent monument as will identify it. "But it is not for the court to say, by merely looking at a record or declaratory statement, what are or what are not permanent objects or monuments; that is a matter of proof." A description giving other claims for boundaries may be good if those claims are marked upon the ground as the law contemplates. This should be open to proof. It is error to reject the record upon mere inspection by the court.

Garfield M. & M. Co. v. Hammer, 6, 53 (1886), affirmed in 130 U. S. 291. A recorded notice of location which describes the claim by courses and distances, and as being a certain number of feet from a well-known quartz location, sufficiently complies with the requirements of the act of Congress. The location named in the absence of evidence will be presumed to be well known. In the absence of evidence the court will not, upon inspection, declare a description insufficient.

Flavin v. Mattingly, 8, 242 (1888). The recorded notice of location describes the claim as 66 situated in Summit Valley, M. Dist. Silver Bow Co. Mont. Ty., and on the northerly side, about onefourth of a mile from Park Cañon." It then states the boundaries as marked. This was admissible in evidence. Its sufficiency was for the jury. "A natural object is any prominent feature in the landscape, and certainly a cañon is as much a natural object in the landscape as the mountains which lie on either side of it, or a river

or a plain. Whether or not a reference to it will be sufficient must often depend on parol evidence, for its length may render a reference to it indefinite, while it might possibly be shorter than the length of a mining claim. The object of the law in requiring the location to be made with reference to some natural object or permanent monument is not very apparent, unless it was for the main purpose of directing attention in a general way to the vicinity or locality in which the location was to be found; for the boundaries, distances, and the courses are to be particularly marked and permanently fixed in such a way as to give notice that the land has been claimed. How much accuracy is required in this reference to natural objects and permanent monuments is not set forth in the statute, and we are not inclined to hold that there must be a strict compliance with the act, where there is a bona fide effort made to comply with the laws."

O'Donnell v. Glenn, 8, 248 (1888). As to the sufficiency of the description in the notice it is for the court to define what is a per*manent object, and for the jury to determine whether the object described comes within the requirements of the law. The description here called for a stake. "Whether it was of such a size and so firmly planted in the ground as to come within the meaning of the words permanent monument' properly defined, was for the jury to find under instructions from the court.

6

Flick v. Gold Hill & Lee Mt. M. Co., 8, 298 (1889). The territorial statute (Comp. Stats., div. 5, sec. 1477), requiring the recording of lode claims, only requires a description of the claim in the manner provided by the laws of the United States, which manner is provided by Rev. Stats. 2324. Recital in a recorded notice of citizenship, discovery, marking of boundaries, are unnecessary, and the record is not evidence of such facts.

Gamer v. Glenn, 8, 371 (1889). While the law of the United States requires a location to be marked on the ground so that its boundaries can be readily traced, the law does not require that these boundaries should be put in the recorded declaratory statement. description in such a statement is sufficient to take it to the jury, which describes the claim with reference to a boulder, a house, and three other lodes.

A

Metcalf v. Prescott, 10, 283 (1891). Where a location certificate is recorded in J. county, but it is stated in the certificate that the claim is in L. county, it is error to reject evidence that it is actually in J. county. The statement of the county in the notice was not required by law, and was surplusage.1

It is error for the court to decide from an inspection of notices whether or not the objects with reference to which the claims are described therein are permanent monuments. This is a matter of proof.

Dillon v. Bayliss, 11, 171 (1891). "A description by reference to an adjoining mining claim is a sufficient reference to a permanent monument to allow the notice of location to be introduced in evidence, and it then becomes a matter of proof as to whether the adjoining claim is a permanent monument."

1 But see Carter v. Bacigalupi, 83 Cal. 187, ante.

A notice described the claim as so many feet long running east and west along the vein, and so many feet wide, and named the district, county, and territory. It stated that a post and notice were set at the discovery shaft, and that there was a substantial post and monument at each corner, and that the M. H. claim was on the southeast, the N. H. on the southwest, and the St. L. on the north, and that the claim began at the southwest boundary of M. H., ran two hundred feet more or less, bounded on the northwest by the St. L., to the place of beginning. Held, that it could not be said from an inspection that the description was impossible or uncertain; the notice was admissible. Mathematical exactness is not required of the locator, and much liberality is extended to him who does the best that the circumstances allow. The admission in evidence of the certificate is not conclusive of the sufficiency of the description. Evidence is admissible that one could not take the description, and, by referring to the permanent monuments mentioned therein, find the premises claimed.

Southern Cross G. & S. M. Co. v. Europa M. Co., 15, 383 Nevada. (1880). A recorded notice which called for stone monuments at each corner of the claim, and described it as bounded by four other claims, is sufficient.

66

Brady v. Husby, 21, 453 (1893). A recorded notice which describes the claim as on the Cortez Mountain," sufficiently refers to a natural object.

In this case the boundaries were clearly marked, and a large amount of work had been done. Defendant had written the notice for the plaintiff, and had assisted in making the location. "He knew all about the location, and was in no wise deceived or misled by the defective record. His only claim of right to relocate the ground is based upon the technical failure of the notice and record to comply with the law. Under such circumstances, while to the extent that the statute is imperative it must be complied with, justice requires that the record shall be construed as liberally as the law will reasonably permit."

New Mexico.

Seidler v. Lafave, 4, 369 (1889). The description in a recorded location notice was by reference at two points to the corners of another claim. Parol testimony was admissible to show that there were monuments at these corners, and that, con- i sequently, the description was by reference to permanent monuments.

Allen v. Dunlap, 24, 229 (1893). The notice described the Oregon. claim as "Commencing at this notice, and running seven hundred and fifty feet in a southwesterly direction, and seven hundred and fifty feet in a northwesterly direction." It was contended that this meant seven hundred and fifty feet in one direction and back again to the starting point. The court held, however, that the meaning was seven hundred and fifty feet in each direction.

Rev. Stats. 2324 does not require, notice of a mining claim to be either posted or recorded, but intrusts that matter to local regulation, subject to the condition that when a notice is required to be recorded it shall contain, among other things, a description of the property. Darger v. Le Sieur, 30 Pac. 363 (1892). A location notice, Utah. in which the claim is described as "situated up near head of the right-hand fork of what is known as Tie Cañon,' about five miles

from the Denver & Rio Grande Railroad in Utah Co.," is fatally defective. There is no compliance with the requirement of Rev. Stats. 2324, and a location made under such a notice is invalid.

Hanson v. Fletcher, 37 Pac. 480 (1894). Trees blazed and squared, and rock monuments marked as corner and end posts, and the prospect hole, are permanent monuments within the meaning of Rev. Stats. 2324, requiring the claim to be described with reference to some natural object or permanent monument. The fact that the notice called for stakes, when, in fact, the monuments were trees cut off, blazed and squared, is immaterial.

(c.) Verification of the Certificate.

In Montana1 and Idaho the declaratory statement (certificate of location) referred to in the previous section must be sworn to before it will be admitted to record. This oath must relate to the facts contained in the notice, which, as we have seen, must be in accordance with the requirements of the United States statute; i. e. every requirement of a recorded notice under the Revised Statutes (the names of locators, the date of location, and the description of the claim) must be sworn to. The omission of any of these will vitiate the record. The act of Congress does not contemplate such an affidavit, nor does it seem to be required by any of the other States or Territories.

McBurney v. Berry, 5, 300 (1885). The oath to a Montana. declaratory statement required by sec. 873, div. 5, 590

Rev. Stats., must be in the nature of an affidavit to the facts stated in the notice, which must be in accordance with the requirements of Rev. Stats. 2324. A notice, the affidavit to which was only as to discovery and citizenship, was inadmissible in evidence.

Wenner v. McNulty, 7, 30 (1887). W. and H. were the joint locators of J. lode. W., acting for himself and H., made the discovery, and informed H., who made out the declaratory statement in accordance with the legal requirements, signed his own and W.'s names, and himself made affidavit to it. The affidavit was valid under Rev. Stats. Mont., sec. 873, div. 5 (Comp. Stats., sec. 1477, div. 5).

O'Donnell v. Glenn, 8, 248 (1888). The law of the Territory Comp. Stats., sec. 1477, p. 1054), requiring an oath to a declaratory statement, is not in conflict with the law organizing the Territory. Under that act every requirement of a recorded notice, under Rev. Stats. 2324, must be sworn to. The omission to swear to the date of the location, though it is contained in the notice, renders the notice insufficient.

O'Donnell v. Glenn, 9, 452 (1890). The form of verification above 1 Pol. Code 1895, sec. 3612. amended by Act March 5, 1895, sec. 13, p. 26.

Rev. Stats. 1887, sec. 3104, as

(without date of location) was sought to be sustained on the ground that, being in general use, the maxim communis error facit jus prevailed. This contention was not allowed, because (1) The alleged error had never received the approval or toleration of judicial or legal opinion; (2) The statute laws are peremptory; (3) The error was not universal; (4) Large property rights were not shown to depend on it; (5) No considerable number of people relied upon or sought to fix their rights upon it; (6) It existed but a short time; (7) Was not clearly proved; (8) Was in direct disobedience of the laws and not an effort to observe them.

Metcalf v. Prescott, 10, 283 (1891). A location certificate is void when there is no jurat of the notary to the affidavit, but simply his signature and seal.

McCowan v. McClay, 16, 234 (1895). It is within the power of the State legislature to require that the recorded notice of location shall be on oath, as in sec. 1477, 5th div., Comp. Stats.

Under this section the declaratory statement must be of the discovery or location as well as of the description, and when an affidavit states merely that "the description of said lode," as given in the notice, is true and correct, this is a verification as to one item only, and the statement is fatally defective.

The statement in such an affidavit, that the locators "have in every respect fully complied with the requirements of chapter 6 of title 32 of the Revised Statutes of the United States and the local customs and laws regulating mining locations," is a conclusion of law and not a verification of any fact.

Berg v. Koegel, 16, 256 (1895). An affidavit to a declaratory statement which shows that it was made before the location is fatal to the validity of the location, in the absence of proof that it was wrongly dated by mistake.1

(d.) Amendment of the Record. Additional Certificates.

A locator may correct his recorded certificate by filing an amendment or additional certificate, and this will take effect as of the date of the original, provided no rights of third parties have intervened. As against such parties the new certificate cannot relate back to the date of the original record, but is treated as filed as of the actual date of filing.2

The law is well stated in the Colorado Statute M. A. S., sec. 3160.3

McEvoy v. Hyman, 25 Fed. 596 (1885), C. C. D. United States. Colo. The first record of a mining claim is usually, if not always, imperfect, and it is the policy of the law to give the

1 See also Preston v. Hunter, 67 Fed. 996, ante, p. 240.

2 See further on this subject Chap. XII.

3 See also Dakota, Comp. L. 1887, ch.

19, art. 1, sec. 2008. Arizona, Act March 20, 1895, sec. 7, p. 53; Idaho, Act March 5, 1895, sec. 5, p. 26; New Mexico, Act Feb. 5, 1889, sec. 4, p. 42; North Dakota,' Rev. Codes 1895, sec. 1437.