But while it is not necessary, in the description of lode claims, that the description conform to a prior public survey, in the location of "placer claims," the statute provides that where the land has been previously surveyed by the United States, the entry, in its exterior limits, must conform to the legal subdivisions of the public lands.1 In other respects, however, claims usually called "placers are subject to entry and location upon the same conditions and proceedings that are provided for the location of vein or lode claims, and where the same cannot be laid out according to the legal subdivisions of the public land, the statute provides that they may be surveyed and platted in the same manner, as though the claim was located on unsurveyed land.

3

§ 40. Notice of location. After the claim has been surveyed, the claimant must post a copy of the plat of the survey at the discovery shaft, or some other conspicuous place upon the claim, together with a notice of his location and intention to apply for a patent for the claim. No precise form or manner of expression is necessary to the validity of the notice, but it should state the date of posting, the full name of the claimant or claimants and the name of

1 U. S. Sta. 233. "Description of bar placer claims, giving name of claim and adjoining claim, size and location in canyon: Held, sufficient.” Grady v. Early, 18 Cal. 109; M. M. D. 73.

2 Ante, idem.

3 Wade Amer. M. Laws, p. 20. The fact that a placer claim is located on legal subdivisions of surveyed ground, does not dispense with the necessity of marking the lines of location on the ground, so that its boundaries "can be readily traced," as required by U. S. R. S., § 2324. White v. Lee, 78 Cal. 593; 21 Pac. 363.

4" Placing a notice of location headed with a certain name upon a lode is naming the lode. It is sufficient if the notice be placed in such reasonable proximity and relation to the ledge, as, in connection with the work doing under it, will give notice to all comers what ledge is intended." (Phillpots v. Blasdell, 8 Nev. 61.) B. & W. L. C. 311.

the claim, mine, or lode,' and although the plat of the claim, when posted with the notice of location, will always show the dimensions and extent of the land claimed, as in the case of a notice for a patent, it is best to state in the notice of location the extent and presumed direction of the claim, the names of adjoining claims, or the nearest located claims, the mining district or county, and, if the location has been recorded, the place where the record may be found.2 These are the essential facts to be stated in a notice of location, but as the identification of the claim is the main object of the description, a detailed and accurate description of the claim is not required, and a notice that identifies the claim by reference to some natural object or permanent monument, or which described it by metes and bounds, and as being a certain distance from another wellknown claim, would be held a sufficient compliance with the requirement of the act of Congress as to the description.*

§ 41. Notice must be recorded. The notice of location is generally required by local rules or regulations to be recorded in the district or county where the claim is located, but in the absence of custom or local rules requir

1 Wade Amer. Min. Law, pp. 117 and 118 and cases cited. Technical accuracy in the filing and recording of notice is not required. Talmadge v. St. John, 129 Cal. 430; Sanders v. Noble, 22 Mont. 110; 20 Am & Eng. Enc. Law (2 Ed.), 709.

4 Girfield M. & M. Cɔ. v. Hamer, 6 Mont. 53; Thompson v. Spray, 72 Cal. 528. But a notice which describes the claim without reference to natural objects or permanent monuments is not good. Baxter &c. Gold Min. Co. v. Patterson, 3 N. M. 179.

5 Sta. U. S., Sec. 2324. "After entry of a mining claim in the land office, a relocation of the premises cannot be made by another so long as that entry stands, and such a relocator acquires no rights of possession or otherwise which will sustain a suit by him in the courts to compel a conveyance to him of the legal title." Neilson v. Champaigne Min. & Mil. C. (U. S. C. C., D. Colo.), 111 Fed. Rep. 655.

ing it, it is not essential to the validity of the location that the notice should be recorded, for there is no provision in the general statute requiring the notice of location to be recorded.1 By Federal statute, however, the right to require the recording of the notice of location is left entirely to local regulations, and although the statute seems to presume that the notice will be recorded, the necessity for recording and the effect of the record, as well as the manner of recording, is left entirely to local regulation.2 Like the recording acts of the different States, the object of recording the notice of location is to furnish notice to subsequent claimants of the same ground, and as actual possession of the land is equivalent in law to notice from the record, the fact that the location notice is not on record will not, ordinarily, defeat the claim of one in actual possession of the land, whatever may be the consequences of a failure to record the notice and notwithstanding the fact that local rules or regulations require that a record shall be made. The rights of the locator are not affected by errors in the record, and errors can generally be corrected without even affecting the validity of the record. The record dates from the time the notice or certificate of record was placed on file and when the locator has filed the notice of location for record, this is ordinarily all that is required for him to do.5

1 Thompson v. Spray, 72 Cal. 528; Fuller v. Harris, 29 Fed. Rep. 814; Wade Amer. Min. Law, pp. 49 and 50.

2A substantial compliance with such customs is sufficient and when they are invoked years after all other acts of location have been made they will be liberally construed by the courts." Donahue v. Meisker, 88 Cal. 121.

3 Wade Amer. Min. Laws, p. 49; Mor. Min. Rts. (10 Ed.), Ch. II. Ante, idem. Patterson v. Min. Co., 23 Cal. 575; Gold Hill Co. v. Ish, 5 Oregon, 104.

5 Wade, p. 50. When recorded the record is prima facie evidence of the facts set forth in the notice. Jantzen v. Ariz. Cop. Co. (Ariz.), 20 Pac. 93; Mor. Min. Rts., supra.

§ 42. Tunnel locations. The Federal statute provides that where a tunnel is run for the development of a vein or lode, the owners have the right to all veins or lodes discovered in such tunnel, within three thousand feet from the face of the tunnel, to the same extent as if such veins or lodes were discovered from the surface. The object and effect of this provision is to give the owners of the tunnel, who are prospecting in good faith for mineral, the right of fifteen hundred feet of any blind lode, which may be discovered by such tunnel, within three thousand feet from the point of commencement of the tunnel. The same rules apply in the location of a tunnel claim, in regard to posting notice and recording a description of the claim that are necessary in the case of surface locations, and to prevent speculators from taking an improper advantage of this provision of the statute, tunnel claimants are held to a strict compliance with its terms, and in order to show their good faith in the premises, they are required to file a sworn statement with the recorder, together with the notice of location. Where the terms of the statute are complied with, however, the owners of the tunnel can hold all veins discovered within three thousand feet from the face of the tunnel, and after the commencement of the

1 Wade Amer. Min. Law, pp. 67-70.

2 Ante, idem. "From the language of the statute (Rev. Stat. U. S., § 2323) it is quite plain that the exclusive right to locate claims on the line of the tunnel, extends 3,000 feet from the 'face' of the tunnel. This term, face, is defined as synonymous with breast.' The term 'breast' is frequently used among miners to signify that portion of the tunnel in which the work is prosecuted the end opposite to the opening. But 'face' is used in the statute to mean that point where the tunnel is commenced or goes under cover. And the length of the tunnel site is 3,000 feet from this point." Wade Am. Min. Law, supra.

3 Wade Amer. Min. Laws, p. 114. subordination to a prior lode claim.

A tunnel location must be made in
Calhoun Gold Min. Co. v. Ajax G.

M. Co., 182 U. S. 499; Mor. Min. Rts. (10 Ed.), Chap. I. 26, 40.

4 “Statute only gives right to locate lodes that are discovered." Wade Amer. Min. Law, pp. 68-69; Mor. Min. Rts. (10 Ed.), p. 206.

tunnel no other party can make a valid location of any vein or lode on the line of the tunnel, which does not appear upon the surface and was not previously exist." 1

66

known to

§ 43. What location includes. The location of vein or lode claims by the general and local statutes are held to include the right to possess all surface ground within the boundaries of the claim, and the right to mine and enjoy all veins and lodes of mineral throughout their entire depth that would fall within the boundaries of the claim, if they were extended vertically downward. The locator also has the right to any valuable rock or loose mineral found upon the surface of the soil. But the locator's right to use the surface does not extend beyond the boundaries of his own claim, and when he has once marked the boundaries and

1 R. S. U. S., § 2323; Rico-Aspen Con. M. Co. v. Enterprise M. Co. (C. C. D. Colo.), 53 Fed. Rep. 321. The discoverer of a lode in a tunnel claim is entitled to 750 feet each way from the point of discovery, under R. S. U. S., § 2320, providing that a claim may “equal, but shall not exceed 1,500 feet in length, along the vein or lode." Ellet v. Campbell (Colo.), 33 Pac. 521. A mining claim located upon a previous tunnel location, is void. Hope Min. Co. v. Brown, 11 Mont. 370; Enterprise M. Co. v. Rico-Aspen Co., 167 U. S. 108; Campbell v. Ellet, 167 U. S. 116; s. c. 18 Colo. 510; 20 Am. & Eng. Enc. Law (2d Ed.), 696.

2 Wade Amer. Min. Law, pp. 285, 286. "One of the rights guaranteed by the Act of Congress, which could not be claimed before by virtue of location, is a right to all veins, lodes, and ledges, throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically,' etc. However this provision as it affects cross veins may be modified by a subsequent section of the same statute, it still holds good as to side veins, whether discovered above or below the surface. These additional or subsequently discovered veins, if found outside of the claim, might have been followed through it in any direction, under the old law, or rather old set of local rules. And, for the purpose of asserting this right, the author of the new discovery might enter upon the old location to mark out the boundaries of his claim." Wade, p. 62. Rev. Stat., § 2322; Rev. Stat. U. S., § 2336. 3 Ante, idem; Mor. Min. Rts. (10 Ed.), pp. 208-9.