notice so posted, together with an affidavit of sinking of the discovery shaft, must be recorded.1

Utah requires posting, at the place of discovery, of a notice of location, which shall contain: (1) the name of the lode or claim; (2) the name of the locator; (3) the date of location; (4) the number of linear feet claimed in length along the course of the vein, each way from the point of discovery, with the width on each side of the center of the vein, and the general course of the vein, or lode, and such a description of the claim located by reference to some natural object or permanent monument, as will identify the claim. A substantial copy of such notice of location must be recorded.2

Idaho is the only state in this group. Its laws provide for the posting of two notices:

(1) At the time of the discovery, when a monument must be erected at the place of discovery, upon which the locator must place his name, the date of discovery, and the distance claimed along the vein each way from such monument;

(2) At the time of marking his boundaries he must post another notice, the requirements of which are much more elaborate, and a substantial copy of which must be recorded.3

2355. Liberal rules of construction applied to notices. The statutory requirements found in the first group of states, and the first requirement in the third group, are nothing more than the perpetuation of the

'Laws of 1898, p. 16, §§ 1, 2, as amended-Laws of 1901, p. 140. *Laws of 1899, p. 26, §§ 2, 4.

Laws of 1895, p. 26, amending § 3101, Rev. Stats.; Laws of 1899, 336, § 2, as amended-Laws of 1899, p. 633; Civ. Code (1901), § 2557.

P.

system in vogue during the early history of the mining industry of the west. They preserve the simplicity of the primitive system and recognize the fact that miners are unacquainted with legal forms, and usually are out of reach of legal assistance.1 A sample of these preliminary notices may be found in the reports of any of the mining states. A case involving the following notice, arising under the statute of Colorado, heretofore referred to, reached the supreme court of the United States: "Hawk Lode.-We, the undersigned, claim fif"teen hundred feet on this mineral-bearing lode, vein, "or deposit,"-dated and signed by the locators. It was contended, and the court below held, that the notice was insufficient because it failed to designate the number of feet on each side of the discovery point. The supreme court of the United States ruled, however, that as the law did not require the linear distances from the discovery monument to be stated, the notice and its posting was a valid appropriation of the lode to the extent of seven hundred and fifty feet on each side of the posted notice.2 In construing these notices, both the courts and land department have been uniformly liberal. As was said by the supreme court of Utah,—3

"When the location was evidently made in good "faith we are not disposed to hold the locator to a very strict compliance with respect to his location "notice."

66

As such notices are generally made by unlettered men, it would be productive of a great hardship if prospectors should be held to technical accuracy in their preparation. If they are sufficiently certain to put an honest

1 Carter v. Bacigalupi, 83 Cal. 187, 193, 23 Pac. 361.

Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. Rep. 560; Bramlett v. Flick, 23 Mont. 95, 57 Pac. 869.

'Farmington G. M. Co. v. Rhymney, 20 Utah, 363, 77 Am. St. Rep. 913, 58 Pac. 832.

inquirer in the way of ascertaining where the lode is, that is sufficient.1

When we deal with cases, however, arising under laws similar to those found in Arizona, New Mexico, Oregon, and Utah, and provisions like those of Idaho in reference to the second notice required by that state to be posted, we encounter a different element. Where the posted notice is the basis of the one to be ultimately recorded, the provisions of the federal law are operative, and the posted notice must contain the requirements of that law as to the contents of the record.2

"The distinction between the notice of discovery or "notice of location required to be posted on the claim "and the certificate or declaratory statement required "to be filed for record is a substantial one, easily "understood when the purpose of each is kept in "" mind." 113

A notice might serve the purpose of a notice of discovery manifesting an intention to locate, and be wholly insufficient as a notice of perfected location which is to be recorded.*

In the absence of a state statute or local rule requiring it, the posted notice need not contain any reference to natural objects or permanent monuments, but the recorded notice must contain such description.5

'Prince of Wales Lode, 2 Copp's L. O. 2; Carter v. Bacigalupi, 83 Cal. 187, 193, 23 Pac. 361; Gird v. California Oil Co., 60 Fed. 531, 544; Book v. Justice M. Co., 58 Fed. 106; Doe v. Waterloo M. Co., 70 Fed. 455; Sanders v. Noble, 22 Mont. 110, 55 Pac. 1037; Wilson v. Triumph Cons. M. Co., 19 Utah, 66, 75 Am. St. Rep. 718, 56 Pac. 300; McCann v. McMillan, 129 Cal. 350, 62 Pac. 31; Wells v. Davis, 22 Utah, 322, 62 Pac. 3; Walsh v. Erwin, 115 Fed. 531.

2 Deeney v. Mineral Creek M. Co. (N. Mex.), 67 Pac. 724.

3 Sanders v. Noble, 22 Mont. 110, 55 Pac. 1037, 1046.

Doe v. Waterloo M. Co., 70 Fed. 455, 458; Gleeson v. Martin White M. Co., 13 Nev. 465; Gird v. California Oil Co., 60 Fed. 531, 536.

Brady v. Husby, 21 Nev. 453, 33 Pac. 801; Poujade v. Ryan, 21 Nev. 449, 33 Pac. 659; Southern Cross M. Co. v. Europa M. Co., 15 Nev. 383.

Where a statute or local rule prescribes the form of a notice to be posted, and provides that a copy of such notice shall be recorded, if such notice does not contain the requirement of the federal and state1 statutes it is an insufficient record. The supreme court of California has said that where district rules provide for the recording of a copy of a posted notice, such record is suffi cient; 2 but this must not be understood as sanctioning a rule that the record of a posted notice is sufficient where such posted notice does not contain the facts required by section twenty-three hundred and twenty-four of the Revised Statutes providing for the contents of the record. Neither a local rule nor a state statute can dispense with the plain requirements of the federal law.3

356. Place and manner of posting.-Most of the state laws requiring notices to be posted fix the point of discovery as the place of posting. Naturally, this will be on the lode, or in such reasonable proximity as will identify it. In California, a local district custom required that a notice of location of a quartz claim should be in writing, "and posted conspicuously in a conspicu"ous place upon the claim located, at or near the lode "line of said claim."

The supreme court of that state held that such a notice, written on one side of a sheet of paper which was folded with the writing inside and placed upon a mound of rocks three feet high, underneath two flat rocks, with a margin of the paper exposed to view, the rest being obscured by the two stones which covered it, was a conspicuous posting in a conspicuous place, and satisfied the rule.1

'Purdum v. Laddin, 23 Mont. 387, 59 Pac. 153.

2 Carter v. Bacigalupi, 83 Cal. 187, 23 Pac. 361.

3 Post, §§ 389-392.

Donahue v. Meister, 88 Cal. 121, 22 Am. St. Rep. 283, 25 Pac. 1096.

Lindley on M.-41

An artificial mound of rocks on the line of a lode is a conspicuous object which would naturally attract the attention of one seeking information as to a former location of a lode, and the slightest examination of the mound would result in the discovery of a written notice.

In another case in the same state, it was held, that a written notice placed in a tin can, and the can placed in a mound of rocks, was sufficient posting.1

It is manifest that some precaution should be taken to protect the notice from destruction by exposure to wind and weather.

In the absence of any specific direction in the state statute or district regulation prescribing the manner of posting, any device adopted which would enable one seeking information in good faith to discover the existence of the notice, should be sufficient. The posting of such a notice after a bona fide discovery is an appropriation of the territory specified for the period allowed by local rules or state legislation for the performance of the remaining acts required to complete the location, and the appropriator is entitled during that period to be protected in his possession against all comers.3

'Gird v. California Oil Co., 60 Fed. 531, 544.

2 Id.

Ante, § 339; Erhardt v. Boaro, 113 U. S. 527, 537, 5 Sup Ct. Rep. 560; Marshall v. Harney Peak Tin M. and M. Co., 1 S. Dak. 350, 47 N. W. 290; Omar v. Soper, 11 Colo. 380, 387, 7 Am. St. Rep. 246, 18 Pac. 443; Sanders v. Noble, 22 Mont. 110, 55 Pac. 1037; Iron Silver M. Co. v. Elgin, 118 U. S. 196, 8 Sup. Ct. Rep. 1177.