adverse claim existing at the time of the original publication and posting and not presented in due time), call for additional evidence or more complete information of the applicant's rights and proceedings in presenting his claim. It also has the power to eliminate from a claim so much thereof as may have been included in a prior patent. Also to withdraw a patent which has not been delivered."

The power of supervision possessed by the Commissioner of the General Land Office over the acts of the Register and Receiver of the local Land Offices, in the disposition of the public lands, undoubtedly authorizes him to correct and annul entries of land allowed by them, where the lands are not subject to entry, or the parties do not possess the qualifications required. The existence of this power is necessary to the due administration of the Land Department. If an investigation of the validity of such entries were required in the Courts of law before they could be canceled, the necessary delays attending the examination would greatly impair, if not destroy, the efficiency of the Land Department. But the power of supervision and correction is not an unlimited nor an arbitrary power. It can be exerted only when the entry was made upon false testimony or without authority of law. It cannot be exercised so as to deprive any person of land lawfully entered and paid for.3

An appeal lies from a decision of the Commissioner of the General Land Office to the Secretary of the Interior, and the decision of the Secretary finally rendered concludes the department. In other words, while the issuance of a patent is pending, the General Land Office has plenary power over the subject, but when once the patent is issued its power or control over the subject ceases, and the only way in which the title can be impeached is by a bill in chancery.5


An applicant for a patent for a mining claim, who has made final entry, paid the purchase money for the land embraced in the survey, and obtained his certificate of purchase, is not obliged to continue the annual expenditure on the claim required by Section 2324, U. S. Rev. Stats., pending final decision on the application and issuance of patent.'


An entry and certificate of purchase, say the Courts, so long as they remain uncanceled, are equivalent to a patent, so far as the rights of third parties are concerned; the certificate of purchase duly issued cannot be collaterally assailed; it must still be borne in mind that the entry may be canceled or disaffirmed by the officers of the Land Department. For example, for fraud or material error, the officers of the Land Department may order republication and reposting of the notice of intention to apply for a patent, on the ground that by such fraud or error the rights of adverse claimants may have been prejudiced or

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jeopardized. Such republication and reposting reopens the matter, and any adverse claimant who may not have presented his adverse claim within the former period of publication and posting, may take advantage of such action and assert his adverse claim in the Land Office and in a Court of competent jurisdiction. Assume that the party named in the final receipt or certificate of purchase was a person qualified to locate and obtain patent for a mining claim. That between the time of the issuance of such receipt and the order of republication and reposting, he has transferred this particular mining claim to an alien. The entryman has received a valuable consideration for the transfer, his interests have wholly ceased and determined, and the claimant's right stands of record in the alien. Can the latter defend the action of an adverse claimant? The plaintiff must recover on the strength of his own title and not the weakness of that of his adversary; but the defendant must show his right as against the Government as well as against the plaintiff, and if it appears in such an action that neither had acquired such rights, judgment should be given against both.*

In the suppositious case under discussion the alien has become the transferee of the rights of the holder of the certificate of purchase, which have been suspended and his right thereto become the subject of judicial determination, and it would seem that, upon proof of the alienage of the defendant, the Court must, as between the parties, award to the plaintiff the ground in controversy without further proof as to the rights of the plaintiff. This would not necessarily end the case, however, as the plaintiff must still prove his case against the Government, as the object of the action is not only intended to determine the rights of the two parties as between themselves, but also between such of the parties and the United States, so as to determine finally whether either party has so far performed the conditions prescribed by the statute, and is of a character capable of entitling him to pay for the mine and receive a patent from the United States. In other words, the certificate of purchase raises no guaranty of ownership, and it is doubtful if one who has parted with his entire interest in a claim could successfully defend an action in relation thereto, in behalf of an alien. If the reopening of the application as outlined practically places the applicant for patent again on the defensive, is not the alien transferee put in the same position as if the property had not been entered in the Land Office, and is he not thus made subject to all of the disabilities of an alien locator upon a portion of the public domain, notwithstanding that a final receipt or certificate of purchase is held by the Supreme Court of the United States as the equivalent of a patent? It may be interesting to note under this point that the Supreme Court of California has held that a bona fide resident of that State, though not a citizen of the United States, or having declared his intention to become such, may, by conveyance, acquire and hold the title of the locators of an unpatented mining claim acquired under Sections 2319 and 2322 of the United States Revised Statutes, and has a full and complete right to convey the same."

It has been held by the Supreme Court of California, under the

5 Anthony v. Jillson, 83 Cal. 296; Gwillim v. Donnellan, 115 U. S. 45.

6 Jackson v. Roby, 109 U. S. 440.

'Burke v. Bunker Hill, 46 F. R. 644.

8 Ferguson v. Nevills, 61 Cal. 386.

authority of Section 1925 of the Code of Civil Procedure, that the certificate of purchase is prima facie evidence of ownership, which may be overcome by proof that at the time of the location of the land upon which the certificate issued the land was in the adverse possession of another party, and that proof of adverse possession is quite sufficient to overcome the evidence offered by plaintiff's certificate of purchase." If this decision be law it nullifies the provisions of the Mining Act of Congress, that "if no adverse claim shall have been filed with the Register and Receiver of the proper Land Office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to patent, and that no adverse claim exists, and thereafter no objection from third parties shall be heard, except it be shown that the applicant has failed to comply with this Act."10

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* * *

No final receipt or certificate of purchase can issue, pending the determination of an adverse claim, which must be presented in the manner, form, and time herein before shown, or it shall be deemed waived. If the defendant in the case under consideration had adverse possession he should have protected his right by a compliance with the Federal law; failing to do this it would seem, under the terms of the law itself and the construction it has received by the Federal Courts, that his legal rights had been lost by his own negligence, and that the certificate of purchase was as unassailable on the ground of his adverse right as the patent itself would be. The patent is evidence of a perfected right in the patentee to the claim conveyed." It is conclusive as to all rights which could have been asserted in the proceedings.


The patent of the United States is the conveyance by which the nation passes its title to portions of the public domain. For the transfer of that title the law has made numerous provisions designating the persons who may acquire it, and the terms of its acquisition. That the provisions may be properly carried out, a Land Department, as part of the administrative and executive branch of the Government, has been created to supervise all the various proceedings taken to obtain title, from their commencement to their close. In the course of their duty the officers of that department are constantly called upon to hear testimony as to matters presented for their consideration, and to pass upon its competency, credibility, and weight. In that respect they exercise a judicial function, and therefore it has been held in various instances by the Supreme Court of the United States, that their judgment as to matters of fact, properly determinable by them, is conclusive when brought to notice in a collateral proceeding. Their judgment in such cases is like that of other special tribunals upon matters within their exclusive jurisdiction, unassailable except by direct proceeding for its correction or amendment. The execution and record of the patent are the final acts of the officers of the Government for the transfer of its title; and as they can be legally performed only after certain steps have been taken, that instrument duly signed and sealed not only operates to pass the title, but is in the nature of an official declaration by that branch of the Government to whieh the alienation of the public land

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under the law is instituted, that all the requirements preliminary to its issue have been complied with. The presumptions thus attending it are not open to rebuttal in an action at law.18 And the certificate of purchase of mineral land, upon an entry of the same by a claimant at the local Land Office, passes the right of the Government to him, and as against the acquisition of title by any other party is equivalent to a patent. The land thereby ceases to be the subject of sale by the Government, which thereafter holds the legal title in trust for the holder of the certificate.14

If the certificate of purchase is equivalent to the patent, it is as conclusive against any claim of adverse possession existing at the time of the location as the patent itself, and the decision of the Supreme Court of California does not seem to be in harmony with the Mining Act and the construction it has received from the Federal tribunals.

However, in a very recent case in Colorado a certificate of purchase had been issued to a citizen who was the grantee of an alien, who deraigned title from an alien locator. This certificate of purchase was issued about one month after a citizen had made a bona fide location of a conflicting claim, and the question presented to the Supreme Court was: Can an alien acquire such an interest in a mining claim by location as can be transferred to one or more parties by various conveyances, and through such claim so transferred can title be obtained from the Government of the United States, against which a subsequent locator cannot assert a legal right? And the Court say that such title, being based on an invalid location, cannot be supported by authority, reason, or statute. And the Court also said that to prove and establish a right to a patent from the Government of the United States, it was clearly the duty of the party seeking the title under the provisions provided by statute, to prove a valid location and a thorough compliance with the mineral laws. In the absence of such proof the Government officials were not authorized to issue a certificate of purchase or a patent for the land, and the certificate holder took no title against a subsequent bona fide locator.15




Although a location perfected under the law is in itself a grant, and is property in the highest sense of that term,1 until a patent is obtained the fee remains in the United States. The patent is the superior and conclusive evidence of legal title, and no one can maintain an equitable right to any portion of the public land as against the patent, which would not be good against the Government. But equities may exist against the patentee which only an examination of the title from its inception would disclose." The patent vests the patentee with the common law right of ownership from the center of the earth upward to the

13 Smelting Co. v. Kemp, supra; Iron Co. v. Sullivan, 16 F. R. 829.

14 Deffeback v. Hawke, supra; Aurora Hill v. 85 Mg. Co., 34 F. R. 570, and cases cited.

15 Lee v. Justice, 29 P. R. 1021.

1 Belk v. Meagher, 104 U. S. 279.

2 Robertson v. Smith, 1 Mont. 410.

3 Baynell v. Broderick, 13 Pet. 450; Aurora Hill v. 85 Mg. Co., 34 F. R. 515; Steel v. St. Louis, 106 U. S. 447.

Boggs v. Merced, 14 Cal. 279.

5 Sussenbach v. Bank, 5 Dak. 477.

sky, and the additional right to follow a vein or lode upon its dip within his side lines under the surface of adjoining territory, provided he has the apex of such vein or lode within his claim, and subject to the same right in behalf of others similarly situated. In other words, the patentee has no greater rights, privileges, or immunities than had a locator on the question of extra lateral rights. In either event he may invade other territory, or have his own invaded when the circumstances warrant, whether both are held by location or patent, or one is patented and the other held by location, and the relative dates of the patents or notices of location are immaterial.' But the vein cannot be followed into the lands of an adjoining proprietor who holds an elder title under a patent for agricultural lands. Nor where the claim is in the form of an isosoles triangle can the lode or vein be followed through the side lines."


In several adjudged cases "top" and "apex" have been treated as synonyms. The word "apex" ordinarily designates a point, and so considered the apex of a vein is the summit, the highest point in the vein in the ascent along the line of its dip or downward course, and beyond which the vein extends no farther; so that is the end, or, reversely, the beginning, of the vein. The word "top," while including "apex," may also include a succession of points; that is, a line, so that by the "top" of a vein would be meant the line connecting a succession of such highest points or apices, thus forming an edge.10 It is not required that it shall be on or near, or within, any given distance of the surface." The apex of a vein is not necessarily a point, but often a line of great length." The owner of the apex under a triangular shaped location cannot follow the lode or vein upon its dip outside of his own territory. The lode outside of such side lines belongs to the United States, and cannot properly be located nor patented under the existing laws. Congress may, by appropriate legislation, provide for the sale of the same,13 but technically, until such action the working of such ground will constitute a trespass upon the public domain, and render the claimant liable to the Government for the value of the ores so taken.

However, the Supreme Court of California has held that when the northerly line of one patented claim and the southerly line of an other patented claim diverged, leaving a small triangular piece of ground between, the owners of the respective claims had the right, as against a subsequent locator, to agree to divide this piece of land, or rather the right to work the ledge under it, between them."

It often happens that the tops or apex of more than one vein lie within the surface side lines, and the veins may have different courses and dips, yet the locator's right to follow them outside of the surface lines of his location must be bounded by planes drawn vertically through the same end lines. The planes of the end lines cannot be

6 U. S. R. S., Sec. 2322; Iron Co. v. Elgin Co., 118 U. S. 218.

Colorado Cent. v. Turck, 50 F. R. 888; Cheesman v. Hart, 42 F. R. 98.

8 Amador v. Spring Hill, 36 F. R. 668.

Montana v. Clark, 42 F. R. 626.

10 Duggan v. Davey, 26 N. W. 887.

11 Iron Co. v. Murphy, 3 F. R. 368.

12 Larkin v. Upton, 144 U. S. 19.

18 Montana v. Clark, supra.

14 Champion v. Wyoming, 75 Cal. 78.

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When a claim is located along a lode, and its owner's right to follow the dip beyond the lateral lines conflicts with the right of an owner of a claim located across the lode to a portion thereof actually within his lines, the claim having priority of location should prevail."


Where a vein upon which a location rests, after being followed for a considerable distance, forks and passes out through the side line of the location, so that the outcrop of one fork is on an adjoining claim, this whole fork belongs to the owner of the latter claim.

The right of a mine owner, under Rev. Stats., Section 2322, to follow a vein whose apex lies within the boundaries of his claim beyond the vertical side lines thereof and within the lines of other claims, is not confined to cases in which the claim thus entered is held under a junior patent or certificate, and the relative dates of the patents or certificates is immaterial."

When the apex of a vein passes out of the side line of a claim into an adjoining claim, the latter, though junior in date, gives to its owner the right to follow the vein in its dip underneath the senior claim.18 In the celebrated "horseshoe case,' "19 Mr. Justice Field says: "The exterior lines of the Stone claim form a curved figure somewhat in the shape of a horseshoe, and its end lines are not and cannot be made parallel. What are designated as end lines are not such." And the Court held that the extra lateral right did not attach to such a location. Mr. Chief Justice Waite dissented from the opinion of the Court, and said: "I cannot agree to this judgment. In my opinion, the end lines of a mining location are to be projected parallel to each other and crosswise of the general course of the vein, within the surface limits of the location, and whenever the top or apex of the vein is found within the surface lines extended vertically downwards, the vein may be followed. outside of the vertical side lines. The end lines are not necessarily those which are marked on the map as such, but they may be projected at the extreme points where the apex leaves the location, as marked on the surface." In commenting on this case, in Doe vs. Sanger," Mr. Justice McFarland says that "the objection (of plaintiff) there was not that the end lines of the Stone claim were out of parallel; and as a matter of fact, what were claimed to be the end lines were parallel. The objection rested on the general 'form and shape' of the Stone surface location, and on the fact that the disputed ore in the Gilt Edge was not within vertical planes drawn through the end lines of the Stone claim, * * which is a surface location with nearly a dozen exterior lines, with no distinguishable side lines or end lines, made in extreme violation of the usages and principles of location recognized by the statutes, and which, if it gives any right to follow a vein at all, would give the right to follow veins in nearly a dozen different directions. * * And it may be noticed that the opinion of the Court was delivered by the same learned Justice who said, in the Eureka case,



16 Iron Co. v. Elgin Co., supra.

16 Tyler v. Sweeney, 54 F. R. 284.

17 Colorado Cent. v. Turck, supra.

18 Colorado Cent. v. Turck, 54 F. R. 262.

19 Iron Co. v. Elgin Co., supra.

20 Doe v. Sanger, 83 Cal. 203.

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supra, that the provision about end lines being parallel was only directory."

As the law stands we think that the right to follow the dip of the vein is bounded by the end lines of the claim properly so called, which lines are those which are crosswise of the general course of the vein on the surface. The Spanish mining law confined the owner of a mine to perpendicular lines on every side, but gave him greater or less width according to the dip of the vein. But our laws have attempted to establish a rule by which each claim shall be so many feet of the vein lengthwise of its course to any depth below the surface, although laterally its inclination shall carry it ever so far from a perpendicular."1

The Government is the proprietor of all veins or lodes whose top or apex is not within the limits of any grant it has made," and most, if not all, patents for lode mining claims contain a reservation that the Government reserves all minerals whose apex is not within the side lines of the location.

The dip is spoken of from three different points of view:

(1) As to its inclination from a perpendicular or a horizontal as so many degrees from the perpendicular or from the horizontal. A vein is thus described as having a dip of 20°, 38°, etc.

(2) As to the direction it takes from the strike or apex by the points of the compass. If the strike were due east and west, and the vein in its course downward departed from the perpendicular at an angle so that a perpendicular shaft sunk at the apex would leave the vein at the north of such shaft, the dip, in this point of view, would be said to be due north, or, the conditions reversed, due south. In this respect the dip, that is the direction of the dip, is said to be, and is, at right angles to the strike.

(3) The dip is again spoken of as the portions of the vein successively encountered in going down and away from the apex. The miner follows the dip when he works downward, leaving the apex farther from and above him at each advance. He follows the strike when he works lengthwise on the vein on a level; that is, when he is advancing along the vein, neither rising toward the surface of the ground nor descending, but going on a level with the plane of the earth's surface.

The third definition is the practical idea of the miner when he speaks of following his dip."

It is practically the universal custom to measure the dip by its angular deflection from the horizontal, as for example, a dip of 20° means 20° deflection from the horizontal.

The right to follow the dip exists whether the express grant of such right is contained in the patent or not," but it would not seem to attach to one whose claim to mineral land depends only on a railroad title, any more than that the patentee of agricultural land would possess the extra lateral right to a vein discovered within his lands. The Federal statute provides how a claim shall be located in order to secure that right, and it certainly would not issue patent for mineral land unless it was claimed as such; and a patent presupposes a valid location or adverse possession as a mining claim for a period equal to the time prescribed by the

21 Flagstaff Case, 98 U. S. 463.

22 Montana v. Clark, supra.

23 King v. Amy, 9 Mont. 543. 34 Doe v. Waterloo, 54 F. R. 935.

statute of limitations for mining claims in the State or Territory where the same may be situated.

The officers of the Land Department always assume, in proceedings to obtain a patent, that the top or apex of the vein sought to be patented is embraced therein, and after patent issues it is not subject to collateral attack, as upon questions of fact their decisions are conclusive upon all parties. But it may be held, if the question is tested, that in issuing patent for a lode claim not possessing the apex the Land Department did not have jurisdiction to act, and the patent be inoperative to pass the title.2 It has been intimated that if the location is made on the dip of the vein the locator may pursue it in a downward course, though not in an upward course, and hold the whole which lies within his location and below it, as against any one locating subsequently at a higher point on the same lode.2 This does not seem to be in harmony with the mining law and the later decisions on the subject.


The dip can only be followed when it is substantially at right angles with the strike." Where the location crosses the vein the side lines are to be considered as the end lines. No rights, however, are lost by a deviation from a paralleling of the end lines in the original location.29 The patent is conclusive on this point. If it is otherwise, the Government alone can take advantage of the defect.31


It was argued at the recent trial of a case in Arizona that, as a matter of fact, lodes, veins, and ledges do not intersect, except upon their strike; that an instance of a crossing upon the dip of two veins was unknown, and that therefore Section 2336, Revised Statutes, must refer to the crossing of lodes on their strike; that Congress would not legislate to define rights dependent upon a condition that can never happen, and the Court said: "If it be true that an instance of two lodes intersecting upon their dip is unknown, that fact is only evidence, and we think very slight evidence, that they may not do so. It is a complete answer to that that lodes can cross on their dip. But we think it unimportant whether they can or not. Congress had in mind, at the time of the enactment of the law of 1872, that, as mining rights then stood, A's lode might legally cross B's lode on the strike, and whether on the dip or not makes no difference; and Section 2336 was designed to define the rights of A and B in the space of intersection. Under the construction of Sections 2322 and 2336 we are, within the plain, unambiguous terms of the statute, giving to every part of it its full meaning and effect. It results in a beautifully simple means of defining mining rights. The construction urged by appellees, and supported by the Equator and subsequent Colorado decisions, violates the language of the statute, injects into it things not there, results in conflict in the statute among its parts, and makes infinitely more complex the old system of lode claims." " The deputy mineral surveyor who makes the official survey of the claim preparatory to patent, is instructed by the Surveyor-General to 25 Richmond v. Rose, 114 U. S. 576; Silver Bow v. Clark, 5 Mont. 378; Larkin v. Upton, 26 Iron Co. v. Murphy, supra


27 Tombstone v. Way Up, 1 Ariz. 426.

28 Argentine v. Terrible, 112 U. S. 478; Tombstone v. Way Up, supra; Flagstaff Case,

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parallel divergent end lines. If, on the coming in of his preliminary plat and field notes, it is discovered that he has omitted to do so, he is compelled to make a resurvey showing his compliance with the instructions sent him by the Surveyor-General. By such rectification the applicant has less ground within his surface lines, and the vertical end lines extended in their own direction (possibly) include less of the ledge than they did before, and cannot prejudice the right of an adjoining claimant on the dip.3 After patent has issued no annual or other work is required upon the claim; surface boundaries are fixed and determined, and the patentee is free from conflicting claims of title to the surface, but he may be divested of his title by the adverse possession of another, the exercise of eminent domain, and the sale of his property for delinquent taxes; he is still subject to suits for trespass and suits to determine the ownership of or right of way to cross lodes, which latter are excepted from the grant, and the right thereto, except as to the space of intersection, being not lost by failure to adverse.


Although we have said that a patent may be taken as conclusive evidence of the settlement of surface boundaries, the statement must be made with this qualification: The Land Department regulations and the instructions of the Surveyor-General require that the private or mine survey shall be "tied" to the nearest corner of the public or land surveys of the United States. This line is often run by calculation or triangulation, and almost as often discloses the fact of gross error in the distance of the line so calculated from the corner section to the corner of the mine surveyed. In a rough country such error has been known to exceed 1,200 feet. This error, always annoying to the mine owner on discovery, is perhaps more or less immaterial up to a certain point of time. Of course it is usual to "tie" the claim surveyed to mounds and bluffs and other natural objects, and occasionally, also, to more or less distant mining claims. A claim so surveyed and tied is presumably so marked upon the ground by monuments at its corners, such and such distances from the various objects named. So in theory, at least, a retracing of the lines, starting from any one of such objects, will establish the locus of the claim as it is monumented. But it is natural to suppose, and it is often the fact, that after lapse of time the surface of the ground in an active mining camp is subject to change; the bluffs and mounds and other objects to which the mine is tied may afterwards be razed by blasting or otherwise, and thus become destroyed; the monuments of the claim to which the one in question is tied may become obliterated; the monuments of the claim itself may be destroyed or obliterated, and to retrace the lines thereof, if the initial point is the corner section of the public surveys, which is, say, 1,200 feet out of the way, where by reference to the patented description will the mine be placed on the resurvey? Where public opinion may place it, or as it is described in the patent.

How would it affect the parties in an action of ejectment or on a question of extra lateral rights if it should be made to appear that the patent described a mining claim which by its connecting line (proved by the oath of a competent surveyor) placed the, let us say, south side line of the claim 50 feet beyond the ledge sought to be patented and left said

33 Eureka Case, supra.

34 Lee v. Stahl, 9 Colo. 208.

ledge lying between said south side line (as retraced) and the north side line of the claim lying south of the claim patented?

What is to govern, the claim as it is marked upon the ground, or as it described in the patent? If the patent does not describe the claim, what is its value? If the location is as it is marked upon the ground, what is the value of the description in the patent if it is erroneous as showing title to ground which, technically at least, it does not cover? What does the Government convey by its patent, the ground erroneously described in the patent, or the claim as it is (properly) marked upon the ground? The Supreme Court of Colorado has held that in proving identity of a patented mining claim the rule is that monuments will control courses and distances; it is not necessary that the former be unquestionable in order to control the latter, and that it is only after the entire description in a patent has been considered and found so inaccurate as to render the identity of the grant wholly uncertain, that the grant is held void.35 On the contrary, the Supreme Court of California has held that if a deed described the land conveyed by adopting the corner of a subdivision, according to the United States survey, as a starting point, said corner is a monument, and will control.6

Assume that a mine owner, relying upon his patent, does no work on his claim and the claim is relocated by another party, will patented description prevail in action of ejectment when connecting line throws claim off 1,200 feet from the ground sought to be patented? As a fact, must not the patent, like a deed, be construed from the mere words and nothing else? 87

These questions may not arise, but they are extremely probable, and while they may not occasion trouble in our lifetime, are certainly a heritage of lawsuits for posterity. The connecting line insisted upon by the Government must be for a purpose, and is not that purpose to determine the locus of the private survey by making the corner section of the public surveys the initial point in resurveying or retracing the line of such private survey?

The questions propounded are such as have arisen in the mind of the writer, and which he does not assume to answer, as they have not yet been judicially determined. Sufficient has been said to show the caution that should be exercised in avoiding such errors as have been mentioned.


Any one running a tunnel for the development of a vein, or for the discovery of mines, shall have the same right of possession of all veins or lodes on the line of such tunnel, within 3,000 feet of the face thereof, which shall be discovered in such tunnel, and which were not previously known to exist, as if the discovery was made from the surface, and he may claim 750 feet of the lode each way from the point of discovery.1 By regulation of the General Land Office, one desiring to secure a tunnel right is required: "At the time they enter cover, to give proper notice of their tunnel, by erecting a substantial post, board, or monument at the face or point of commencement thereof, upon which should be posted a

85 Cullacott v. Cash, 8 Colo. 179.

36 Powers v. Jackson, 50 Cal. 429.

37 Pollard v. Shively, 5 Colo. 309.

1 Glacier v. Willis, 127 U. S. 471; U. S. R. S., Sec. 2323; Ellett v. Campbell, 33 P. R. 521.

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