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.

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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." Seidler v. Lafave, 4, 369 (1889). The description New Mexico. 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, consequently, 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, 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

Utah.

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 2 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 amended by Act March 5, 1895, sec. 13, p. 26.

1 Pol. Code 1895, sec. 3612.

2 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.

19, art. 1, sec. 2008. Arizona, Act March 20, 1895, sec. 7, p. 53; Idaho, Act March

2 See further on this subject Chap. 5, 1895, sec. 5, p. 26; New Mexico, Act Feb. 5, 1889, sec. 4, p. 42; North Dakota,

XII.

3 See also Dakota, Comp. L. 1887, ch. Rev. Codes 1895, sec. 1437.

locator an opportunity to correct his record when defects are found therein, and when it is corrected the amendment takes effect with the original as of the date thereof.

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occurrence.

Errors and mistakes in certificates of location are of frequent Under the law as it is at present a fully complete and unimpeachable certificate cannot be made without the aid of a surveyor and the best instruments. It is often, and perhaps generally, impracticable to obtain the services of a surveyor in making a location, and the miner must depend upon his own skill and judgment. In such effort he usually fails. Indeed, it may be said, as to the course of his lines, he is always in error, and the natural object and permanent monument required by section 2324 are entirely beyond his grasp. He does not know what they are, nor how to refer to them. Every one who is at all familiar with mining locations knows that in practice the first record must usually, if not always, be imperfect. Recognizing these difficulties, it has never been the policy of the law to avoid a location for defects in the record, but rather to give the locator an opportunity to correct his record whenever defects may be found in it, and the section (Gen. Stat. Colo. 2400) which declares that defective certificates shall be void, when read in connection with section 25 (2409), and qualified by it, will be understood as saying that defective certificates are lacking in force and sufficiency until amended as provided in section 25 (2409), but not wholly void."

Fuller v. Harris, 29 Fed. 814 (1887), C. C. D. Alaska. At the time of the location of a quartz mining claim by the employees of the claimant, there were no local rules of the mining district requir ing a record of the location. Subsequently the claim was located by the owner so as to conform to the requirements of the act of Congress. Held, that as there was a real location of the claim by the employees of the claimant, they being his agents, his title dated back to the first location.

Tombstone Town Site Cases, 15 Pac. 26 (1887). A Arizona. notice of location of the ground was filed Feb. 25, 1879. It was so uncertain that the land could not be identified, and was aided by no evidence. The record was amended on Nov. 20, 1880, and a mineral patent for the land described in the amendment was issued Aug. 15, 1882. A town site covering the land was entered April 9, 1880. This latter prevailed.

Strepey v. Stark, 7, 614 (1884). An "additional Colorado. location certificate differs from documentary muniments of title. It is not proof of title, nor does it establish a possessory right. It is, when recorded, notice of the facts required to be set forth therein, and is one of the steps requisite under the statute to constitute a mining location. Four things are necessary in order to perfect a location: (1) Sinking of a discovery shaft; (2) Posting a discovery notice; (3) Marking the surface boundaries; (4) Making and recording a location certificate. To establish a right of possession under an alleged location, the first three of these must be proved by evidence outside of the certificate. The certificate, when recorded, is evidence of the date of location, the description of the premises,

and the compliance with the statutory requirements of making out and recording the same.

An additional certificate operates to cure defects in the original, and thereby to put the locator, where no other rights have intervened, in the same position he would have occupied if no such defects had occurred. Its admissibility in evidence is not affected by the circumstance that it was filed after acquired right of interest, but merely relates to the right of possession which must have been acquired prior to the filing of the certificate, and to the acquisition of any intervening right of the adverse party.

Craig v. Thompson, 10, 517 (1887). Where one has made a location valid in other respects, but had filed an invalid certificate, an amended certificate, filed before the defendant had acquired intervening rights, would as to him relate back to and preserve the claim as originally located. The defendant did not acquire intervening rights by acts done upon the land within the sixty days after plaintiff's discovery in which he was entitled to do his discovery work. The defendant was then a trespasser.

Seymour v. Fisher, 16, 188 (1891). The law allows a change of boundaries when amended certificates are filed, and an injury to superior rights thereby is effectually waived by failure to adverse.

Becker v. Pugh, 17, 243 (1892). An amended location certificate is not void because it covers additional ground. It is not necessary, in order to hold that ground, to sink a new discovery shaft and fix new boundaries in the same manner as if it had been an entirely new location. Nor is it necessary to sink the original discovery shaft ten feet deeper.

(e.) Mistakes in the Record.

Where the locator has honestly complied with all the local rules and requirements as well as those set forth by the act of Congress, mistakes of the recorder in copying the certificate will not divest his title.

Myers v. Spooner, 55, 257 (1880). Where locators of California. mining claims have complied with the local rules and regulations in making their location, their title cannot be affected by a mistake of the recorder in copying the notice in the record book. Weese v. Barker, 7, 178 (1883). Where a location cerColorado. tificate appears to be in compliance with the statute, a mistake by the recorder, who recorded the name "Farmer Boys instead of “Tanner Boys," which did not mislead the subsequent Jocator, cannot avail the latter.