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(f.) Requirements as to the Time and Place of recording

Certificate.1

These are matters of State, Territorial, or local regulation. The act of Congress makes no requirement as to the time or place in which the certificate must be filed.2

Where the State or district does not prescribe the time within which the certificate must be recorded, it should be done within a reasonable time. The Land Office suggests twenty days after the location has been marked on the ground. Regulations, par. 16.

A failure to record the certificate within the time fixed by law may be cured at any time by recording it, provided no other certificate for the same claim, based on the requisite precedent acts of location, has been recorded. After the expiration of the limited time without the recording of the certificate, a record filed which is based on a junior discovery becomes the senior location.

Faxon v. Barnard, 4 Fed. 702; s. c. 2 McCrary, United States. 44 (1880), C. C. D. Colo. The Colorado statute re

quires that the certificate of the location of a mining claim must be filed of record in the office of the recorder of the county in which the claim may be, within three months next after the discovery of the lode. Held, that failure to record the certificate within the prescribed time would not render the same invalid, provided all things had been done as the act required, before any other and better right to the same ground had been perfected.

Therefore when the Ontario lode was discovered on the public land, Feb. 11, 1878, the location completed in July of the same year, and the Green Mountain lode was discovered in August, 1877, and the location completed by filing for record a certificate of location in March, 1878, and these two locations partly overlapped each other, it was held that the claim of the Green Mountain lode would prevail over the Ontario lode upon the question of priority of discovery and location.

California.

Idaho.

Recording notice

Thompson v. Spray, 72, 528 (1887). before posting does not invalidate it. Kramer v. Settle, 1, 485 (1873). notice of location within the required time may be cured by

recording it before a subsequent location.

1 See also Div. II., this chapter. 2 Arizona, Rev. Stats. 1887, sec. 2349; Colorado, M. A. S., secs. 3136, 3150; Act March 5, 1895, sec. 4, p. 26; Minn., Gen. Stats. 1894, secs. 4073-5; Montana,

A failure to record a

Pol. Code 1895, sec. 3612; New Mexico,
Comp. Laws 1884, sec. 1566; Oregon,
Hill's Ann. Laws 1892, sec. 3828; Wash.,
Gen. Stats. 1891, sec. 2216; Wyoming,
Act Feb. 21, 1895, p. 247.

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PRIOR to 1866 in the case of lode claims, and 1870 in the case of placer claims, the amount of ground and the length of lode which might be located in a single claim was determined by the regulations of the district in which the location was made. In the absence of regulations, the claim was invalid if unreasonable in extent as creating a monopoly, and the reasonableness of the extent was determined by the general usage of the country. Congress in 1872 (Rev. Stats. 2320) fixed 1,500 feet as the length along the vein or lode which a single claim might equal, and 300 feet on each side of the middle of the vein (or the point of discovery) as the width beyond which the claim should not extend. In other words, the maximum dimensions of a location for a lode claim allowed under the United States statutes now in force are 1,500 by 600 feet; but within this extreme local regulations may limit the extent to any distance not less than 25 feet on each side of the middle of the vein. This distance may be measured from the walls or sides of the vein if so provided by the provisions of local regulations, but such measures are not contemplated by the United States law. If a claim is located so that it calls for a greater extent than prescribed by the act and the local regulations, and this is done inadvertently or without the purpose of exceeding the legal limit, it is not entirely void, but only as to the excess over the legal amount. But if such a location is made without excuse, and is grossly excessive, it is entirely void. A patent issued for an excessive location is subject to the same rules as the location, and is void as to the excess.

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The size of placer claims is prescribed by the acts of 1870 and 1872, Rev. Stats. 2330 and 2331. According to the provisions of these, the extent of a placer location is limited to twenty acres

for each individual, and no association can locate more than one hundred and sixty acres. The restrictions imposed by these sections do not prevent the locators from purchasing any number of other contiguous claims which have been properly located by others, and obtaining a patent for the whole as one claim.' A patent for such a claim is valid. But, on the other hand, the mere use of the names of a number of locators who have agreed to convey their interests to the actual locator for whom they have acted as agents without consideration, the purpose being to evade the restrictions as to the extent of locations, is against public policy, and equity will not enforce a trust based on such an agreement.

I. LODE CLAIMS.

A location as a lode claim, as above stated, is now governed by the provisions of Rev. Stats. 2320, which limit such location, whether made by an individual or an association composed of a number of persons, to 1,500 feet in length in the direction of the lode or vein. This may not be limited by State or Territorial laws or local regulations. As to the width of the claim, it must not exceed 300 feet on each side of the middle of the vein at the surface. This distance, however, may be limited by statutory or district regulation. Such regulation may not limit the surface ground to less than 25 feet on each side. The lateral measurement cannot exceed 300 feet on either side; the deficiency of one side cannot be made upon the other. The greatest extent of a lode claim, therefore, is a parallelogram 1,500 feet by 600. The length of this cannot be decreased. The width may be limited to 50 feet.

Although a claim was located before 1872, and in accordance with a custom prescribing a greater width than 600 feet, it is not in the power of the Land Department to issue a patent for a greater extent than is provided in Rev. Stats. 2320.

The shorter sides of the rectangular piece of ground are called end lines, and they must always be parallel. The longer sides are called side lines.3 Where the middle of the vein has not

1 In the case of placers, it seems, these need not be contiguous.

2 Colorado, M. A. S. 3148, 3149; Dakota, Comp. L. 1887, ch. 19, art. 1, sec. 1998; Idaho, Rev. Stats. 1887, sec. 3100; North Dakota, Rev. Codes 1895, sec. 1427;

Oregon, Hill's Ann. Laws 1892, sec. 3827 ;
Utah, 2 Comp. Laws 1888, sec. 2790;
Wash., Gen. Stats. 1891, secs. 2210-2211;
Wyoming, Laws 1888, ch. 40, secs. 13, 14.

3 As to rules governing the direction of these lines see Chap. XV., Div. I.

been developed by exploration, the point of discovery is presumed to be the middle of the vein for purposes of measurement. See L. O. Regs., pars. 9, 10, 11.

As some existing titles may be governed by the law as it stood previous to 1872, it is important to know that law. Until July 26, 1866, the length of lode claims was governed by district rules or State legislation. The act of Congress of July 26, 1866, sec. 4, which remained in force until May 10, 1872, provided that locations should not exceed two hundred feet along the lode for each locator, except that the discoverer might have an additional claim, and no association could appropriate more than 3,000 feet. The important cases upon the law previous to May 10, 1872, are collected below on page 261.

United States.

Jupiter M. Co. v. Bodie M. Co., 7 Sawy. 96 (1881), C. C. D. Cal. Under the act of Congress a claim may be located one thousand five hundred feet along the length of the vein, and three hundred on each side of the middle of the vein. This may be limited to not less than twenty-five feet by a rule, regulation, or custom in force at the time of location. A claim having been located under the provision of the act of Congress as to extent, and a regulation having been set up, limiting the width to fifty feet on each side of the vein, if the jury find that such a regulation existed at the time of the location, the location is void as to the excess only.

Richmond Co. v. Rose, 114, 576 (1885). When the statutes of the United States and local laws of a mining district authorized a location on a vein of only two hundred feet by each locator, a location by mistake for more than two hundred feet was not thereby made entirely void, but was good for two hundred feet and void only as to the

excess.

Parley's Park Co. v. Kerr, 130, 256 (1889). Mining regulations of Blue Ledge District, adopted May 17, 1870, provided that the surface width of any location should not exceed one hundred feet on each side of the wall rock of the lode. At a meeting on May 4, 1872, held to amend the rules, it was enacted that the surface width should be governed by the laws of the United States. The width of claims in this district were consequently governed by the act of Congress of May 10, 1872, Rev. Stats. 2320.

Lakin v. Dolly, 53 Fed. 333 (1891), C. C. N. D. Cal. The Land Department has no jurisdiction, power, or authority to issue a patent for a lode to any surface ground exceeding three hundred feet in width on each side of the middle of the vein, and any patent which is issued for more than that amount of surface is null and void as to the excess over three hundred feet, and can be collaterally attacked in a court of law.

Lakin v. Roberts, 54 Fed. 461 (1893), C. C. App., 9th Circ., affirming last case. Under Rev. Stats. 2320 a patent cannot be issued for a

claim exceeding three hundred feet in width on each side of the vein, although the original location was wider, and was made under the law of 1866, by which the width of claims was regulated by the custom of miners. Where a patent is issued for the full width of such claim, it is void as to the excess, and Rev. Stats. 2328 cannot be construed to preserve a right to the full width located and covered by the patent. Thompson v. Spray, 72, 528 (1887). Upon the disCalifornia. missal of the action as to some of the plaintiffs, the defendant moved for a nonsuit as to the others, upon the ground that the dismissal left these claiming more than they were entitled to hold by law. But the location was held to be good for as much as the party was entitled to hold, and void as to the excess only. Richmond Co. v. Rose, 114 U. S. 576.

Doe v. Tyler, 73, 21 (1887). The inclusion of greater length than the law allows does not render a claim totally void. This may occur, and often must occur, by accident of the surveyor or other innocent mistake, where no intention exists to claim more than the amount allowed by law. There is no reason why the excess may not be rejected, and the claim be held good for the remainder.

Atkins v. Hendree, 1, 95 (1867). When a location is Idaho. made greater in extent than allowed by law, it is not entirely void, but only as to the excess.

Foote v. National M. Co., 2, 402 (1876). Act of LegisMontana. lative Assembly of Dec. 26, 1864, sec. 3, provides, "Claims on any lead, lode, or ledge, either of gold or silver, hereafter discovered shall consist of not more than two hundred feet along the lead, lode, or ledge, together with all dips, spurs, and angles emanating or diverging from said lead, lode, or ledge, and also fifty feet on each side of said lead, lode, or ledge for working purposes."

Sides or walls being necessary to a lead, it follows that a statute giving to a locator fifty feet on each side of a lead for working purposes must be construed to mean fifty feet from each wall or side of the lead. The fifty feet on each side cannot include any of the lead.

Hauswirth v. Butcher, 4, 299 (1882). A claim of a mining location two thousand feet long will not protect the claimant against intervening claims of third persons for the five hundred feet more than the law allows. Whether the claim will be good for fifteen hundred feet or entirely void, undecided.

Leggatt v. Stewart, 5, 107 (1883). A location exceeding in extent the length allowed by law is void for uncertainty: "the defendants cannot claim to have sufficiently marked their boundaries if their stakes include seventeen hundred and sixty-three feet in length.”

Overman S. M. Co. v. American M. Co., 7, 312 (1872). Nevada. Case of dispute as to boundary of two adjoining mining

claims. The court charged: "When boundaries have been established, defining and denoting the size and limits of the claim upon the surface, and for a long period have been recognized as such, the extent of the claim will be confined to the extent as manifested by such surface boundaries." The testimony was such that the instruction was apt to be understood to refer to a recognition of boundaries occurring after the consummation of the original location, and consisting merely

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