and regulations. But, on the other hand, where there has been possession and use for a considerable length of time, together with a general recognition of the claimant's rights, this has been held the equivalent to a valid location, and to cure any defects in the location of the claim.2

3

§ 36. Who may locate mining claims. Citizens of the United States are given the right, by statute, to occupy or purchase public mineral land, under certain regulations, prescribed by law, and according to the rules and customs in force within the mining districts of the different States, so far as the same are not inconsistent with the laws of the general government. But one who is not a citizen, if he has not declared his intention to become such, cannot make a valid location of a mining claim on public land, and if an alien has not been naturalized before the location of his claim, his naturalization during the trial of an action to determine his right to such claim, will not retroact, so as to render his prior location valid. But there is no distinction

1 Sullivan v. Heuse, 2 Colo. 424: Chapman v. Fay Lang, 4 Sawyer, 28. 2 Kinney v. Con. Va. M. Co., 4 Sawyer, 382; Harris v. Equator Co., 2 Colo. 63.

In the absence of evidence to contrary, locator is presumed a citizen. Garfield M. & M. Co. v. Hammer, 6 Mont. 53.

4 U. S. R. S., p. 427, § 2319.

Anthony v. Jillson, 83 Cal. 296; 23 Pac. 419.

6 Woolf v. Manuel, 9 Mont. 276, 279, 286; 23 Pac. 723; Copp's U. S. Min. Lands, p. 238. "§ 2321. Proof of citizenship under this chapter may consist, in the case of an individual, of his own affidavit thereof; in the case of an association of persons unincorporated, of the affidavit of their authorized agent, made on his own knowledge or upon information and belief; and in the case of a corporation organized under the laws of the United States, or of any State or Territory thereof, by the filing of a certified copy of their charter or certificate of incorporation." (Act of Congress, May, 1872.) By statute, alien may now acquire U. S. mining lands. (Act Cong. March 2, 1897; 27 Stat. L. 618; Supp. R. S. U. S., p. 574.) The later cases hold that an alien may hold claim until office found; that claim is not void, and that until alien can become citizen, if he declares his intention, the location is valid. Manuel v. Wulff, 152 U.

made between citizens of the United States in regard to their right to locate claims, and if all the other conditions necessary to a valid location have been complied with,' the fact that the locator is a minor, if he is a citizen, will not invalidate his location.2 A corporation may also locate, or join in the location of a claim upon the public mining land, in like manner as an individual citizen, provided its members are all citizens of the United States and the corporation was organized under the laws of one of the States of the Union. And it is presumed the courts would extend the statute to include unmarried women, as the benefit of a similar statute, donating public land, has been extended, by construing the words "single man," in its generic sense, to include unmarried women.4

3

§ 37. Same Agent may locate claim. —Any person who is a citizen of the United States and is otherwise entitled to locate a claim on the public domain in his own name, may perform all necessary acts of appropriation through

S. 505; Lone Jack Co. v. Megginson, 82 Fed. Rep. 89; Ferguson v. Neville, 51 Cal. 356; Justice Min. Co. v. Lee, 21 Colo. 260; Wilson v. Triumph Co., 19 Utah, 66; Strickley v. Hill, 62 Pac. Rep. 893; McKinley Cr. Min. Co. v. Alaska United Min. Co. (1902), 183 U. S. 563; 22 Sup. Ct. Rep. 84; 20 Am. & Eng. Enc. Law (2 Ed.), pp. 701, 702 et sub.

1 U. S. v. Iron Sil. Min. Co., 128 U. S. 673; 9 Sup. Ct. Rep. 195.

2 R. S. U. S., § 2319. Infant can locate claim. Thompson v. Spray, 72 Cal. 528.

8 McKinley v. Wheeler, 130 U. S. 630; 9 Sp. Ct. Rep. 638. But proof of citizenship is necessary in all cases to establish claimant's rights. To entitle a corporation to locate a mining claim, it must have been organized under the laws of one of the United States. McKinley v. Wheeler, 130 U. S. 630; Dahl v. Mont. Cp. Co., 132 U. S. 264; Doe v. Waterloo Mining Co, 44 U. S. App. 204; Thomas v. Chisholm, 13 Colo. 105; Stem-winder Min. Co. v. Emma &c. Con. Min. Co., 2 Idaho, 421. See also R. S. U. S., Sec. 2321; 20 Am. & Eng. Enc. Law (2 Ed.), p. 702.

4 Silver v. Ladd, 7 Wall. 219; Copp's U. S. Min. Lands, p. 238. This is chivalrous in the courts, to say the least.

the agency of others. The same rules apply in regard to ratification of the unauthorized acts of the agent, as pertain under the general law of principal and agent, and a person in whose name another makes an unauthorized location of a mining claim, assuming to act as his agent, is held to ratify the unauthorized act of such agent, by bringing an action to quiet the title which he acquired under such location. The right to a mining claim is primarily in the person in whose name it was located, even though such person's express consent to the location does not appear, and the location can be made by the agent of a corporation the same as by the agent of an individual citizen. If the - claimant is not a resident of the district where the claim is located, the application for patent and the affidavits required by statute may be made by such claimant's authorized agent, where the agent is conversant with the facts sought to be established by such affidavit, but where a contract is made and a patent sought to be obtained in the name of some third party, with a view to obtain more land than the law permits, such contract would be construed as an agreement to defraud the government, and anyone entering into such a contract would lose any equities that he might possess in or to such tract of land.5

§ 38. Claim must be "distinctly marked." — Under the general United States statutes one of the first acts to

1 Murley v. Ennis, 2 Colo. 300.

2 Thompson v. Spray, 72 Cal. 528; 14 Pac. 182.

3 Murley v. Ennis, supra; Whitman Min. Co. v. Baker, 3 Nev. 386. For location by agents, see: Ledoux v. Forrester, 94 Fed. Rep. 600; Rush v. Franch, 1 Ariz. 99; Moore v. Hammerstag, 109 Cal. 122; Dunlap v. Pattison (Idaho), 42 Pac. Rep. 504; Weeland v. Huber, 8 Nev. 203; Morrison v. Regan (Idaho, 1902), 67 Pac. Kep. 955; 20 Am. & Eng. Enc. Law (2 Ed.) 703.

4 U. S. Sta. at Large, § 2331.

5 Mitchell v. Cline, 84 Cal. 409; 24 Pac. 164.

be performed by the locator of a claim upon the public mineral land is to mark such claim distinctly upon the ground, so that its boundaries can be traced.1 Aside from this one general statutory provision, most of the acts necessary to a valid location are prescribed and regulated by the state legislatures, or the local rules and customs of the different mining districts.2 Just what acts are necessary in order to constitute a sufficient marking of the ground has been a subject of consideration for the courts, and while the language of the statute is sufficiently clear to convey the meaning and object of the provision, like many other terms that are clear and unambiguous to an ordinary mind, when brought into dispute, such terms must undergo a technical construction, in order to determine the exact meaning of the words used, and the acts necessary to accomplish the object had in view. It is not deemed necessary, however, to trace the boundary lines throughout their entire length, or to erect fences or other inclosures for the purpose of marking the claim upon the ground, but whatever means is used in

West Gran"Where it is

1 Marshall v. Harney Peak Tin Min. &c. Co. (S. D.), 47 N. W. 290 (stating essentials of a complete location). A failure to mark the boundaries is fatal to validity of claim. Anthony v. Jilson, 83 Cal. 296. Stakes used for corners are sufficient compliance with R. S. U. S., § 2324. ite Moun. M. Co. v. Granite Moun. M. Co., 7 Mont. 356: shown that a mining claim has been located in good faith, if language used in referring to natural objects and permanent monuments will impart notice to a subsequent locator, it is sufficient." Morrison v. Regan (Idaho), 67 Pac. Rep. 955. A location of more than the statutory amount of land is void as to excess only. Parley's Park M. Co. v. Kerr, 130 U. S. 256; Richmond Co. v. Rose, 114 U. S. 576; Howeth v. Sullenger, 113 Cal. 547; Taylor v. Parenteau, 23 Colo. 368; Hanvon v. Fletcher, 10 Utah, 266. But in Montana and Idaho, an excessive location is held to avoid the claim. Legatt v. Stewart, 5 Mont. 107; Burke v. McDonald, 2 Idaho, 646; 20 Am. & Eng. Enc. Law (2 Ed.), 716 et sub.

2 Ante, idem. Wade, p. 46.

3 Claim should be marked so that it can be readily traced. As to manner of marking claim, see: Cheesman v. Shreve (C. C. D. Colo.), 40 Fed. Rep. 787.

order to accomplish the object of the statute, if the boundaries" can be readily traced" upon the ground, this would be held a sufficient compliance with this provision of the statute.1

§ 39. Description and survey. Where there has been a public survey of the land upon which a mining claim is located, the claim should be described with reference to the lines and corners of the public survey, and although this provision of the statute was intended to apply only to the descriptions in patent surveys, as natural objects and permanent monuments are always to be desired in such descriptions, the above provision, when applicable, applies with equal propriety to the description of a mining claim. in the locator's notice of location. The claim may be described by metes and bounds and courses and distances, and while it is better for the measurements to be made by a surveyor, it is not absolutely necessary that the work should be so performed, and if the claim is limited to the proper size and shape it will be a sufficient compliance with this provision, if the boundaries are distinctly marked upon the ground," and the identification is made by reference to some natural objects or permanent monument.5

66

1 Wade Amer. Min. Law, p. 46. Blanchard & Weeks Lead Cas., p. 204 and cases cited.

2 Wade Amer. Min. Law, p. 51. "The survey of a mining claim for the purpose of applying for a patent from the United States, is the act of the claimant and not of the government, and if he has applied for patent before sufficient development has been made to show the strike of his vein, and if thereupon after the patent issues the vein is found to depart from the survey lines, it is lost to the patentee. The surveyor acts for the claimant, and he is not required either to discover or show the course of the vein." Wolfly v. Lebanon M. Co., 4 Colorado, 187; M. M. D., 364.

3 Wade, p. 19.

Tiede. R. P., § 3; Kelly v. Taylor, 23 Cal. 11.

5 Drummond v. Long, 9 Colo. 538.