by the occupant of the later location, sufficient to work an extinguishment of the right of the senior locator, there must be, coupled with the non-user on the part of the first locator of that portion of his claim overlapped by the second location, some act, on the part of the locator of the second claim, adverse and hostile to the rights of the first locator and which would prevent his exercise thereof.1 And where controversies arise as to any portion of the ground included within the junior location, the owner of the first claim could abandon his rights to such portion of his claim as may be in dispute without forfeiting any rights he may have to the remainder of his claim.2

§ 444a. Same Appeals Land officers' duties. It is the duty of the register or receiver of the land office where an adverse claim is filed to "notify the parties interested in the contest that such adverse claim has been filed." The date of filing the adverse claim should be indorsed upon the same, and a correct record should be preserved of all notifications issued on the claim.3 After the filing of the claim, all proceedings on the application for a patent should be suspended, except the preliminary matters accompanying the publication and posting of notices, until the adjudication of the controversy in a

1 Marvin v. Brewster Iron Co., 55 N. Y. 538.

2 Tyler Min. Co. v. Last Chance Min. Co. (C. C. App. 9 Ct.), 7 U. S. App. 463; 54 Fed. Rep. 284. But the prior of two mining locations must prevail where they overlap each other lengthwise on the course of the lode, as where side locations interfere with following down the lode. Ante, idem. "Where apex of vein passes through one end line and parallel side line, the extra lateral rights of locator are bounded by the vertical plane of such end line and a parallel plane, downward through the point where the apex crosses the side line." Parrot S. & C. Co. v. Heinz (Mont.), 64 Pac. Rep. 326; 53 L. R. A. 491.

3 Wade's Am. Min. Laws, pp. 188 and 189; Copp's U. S. Mineral Lands, pp. 204-277.

court of competent jurisdiction, or until the adverse claim has been waived or withdrawn.1 As the proceedings in cases of adverse claims are clearly defined by the act itself, we deem it unnecessary to enlarge upon the different stages of proceedings prior to the rendition of judgment. After the judgment is rendered a period of sixty days is allowed for filing the notice of appeal after notice of the decision has been served, and if the notice of appeal is not served within that time, the case will be closed and the decision of the commissioner will be final.2 Thirty days is allowed the appellant for filing points of exception and argument, after service of the notice of appeal, and local land officers have no power to grant further time for perfecting the appeal, as this authority can be exercised by the commissioner alone.3

1 The notice required is, in effect, a summons. Wolfley v. Lebanon Co., 13 M. M. R. 272.

2 Wade's Amer. Min. Law, pp. 188, 189.

3 6 Landowner, 124; Wade, pp. 188 and 189. In an adverse suit, the court may restore the rightful party to possession. Silver City G. & S. Co. v. Lowery, 19 Utah, 334; 57 Pac. Rep. 11. A jury trial is not essential in an adverse claim under R. S. U. S., Sec. 2326; Perigo v. Dodge, 163 U. S. 160.

PART II.

ACTIONS FOR INJURIES TO MINING RIGHTS AND PERSONS.

CHAPTER I.

ACTIONS FOR PERSONAL INJURIES.

SECTION 445. What personal injuries are actionable. - Natural and artificial agencies.

446. Same

453. Same-Negligence of fellow-servant, no liability.
454. Who are fellow-servants.

455. Same-Negligence of hoisterman.

456. Same-Department doctrine.

457. Injuries from unsafe machinery and appliances.

458. Failure to inspect.

459. Clothing catching on machinery.

460. Giant powder — Injuries from explosions.

461. Injury from steam explosion.

462. Bad air or gas.

463. Failure to furnish props.

464. Defective scaffolds and platforms.

465. Injury on ladder.

§ 445. What personal injuries are actionable. Actions can generally be maintained for those personal injuries which are due to the negligence of another. Actionable negligence is not an absolute or intrinsic term, but is always relative to the circumstances of time, place or person, and is defined as an omission to do that which a reasonable man would do, or doing something which a reasonable man would not do.1 It will be seen, therefore,

1 Negligence was recently defined as "the failure to observe, for the protection of another's interest, and safety, such care, prudence and vigilance, as the circumstances justly demand and the want of which causes the injury." Downey v. Gemini Mining Co. (Utah, 1902), 68 Pac. Rep. 414; Richardson v. Kier, 4 M. M. R. 613.