farther, from performing acts otherwise necessary under the law. And in such case, any work done or improvements made upon the premises by a wrong-doer would inure to the benefit of the original claimant. This is but another way of stating the rule that an intruder can acquire no rights as against one lawfully entitled to the possession; and it is well settled that the locator of mining property is no more required to remain in actual possessio pedis thereof, than he would be in order to establish his title to any other species of real property. Where a purchaser goes into possession before all the acts of location are completed, he may complete them and thus perfect his title."

But, while any act of location carries with it the right of exclusive possession, before such right is perfected, in other words, in order to complete a valid location, the claim must be distinctly marked on the ground and identified in the record, if there is a record. The mere posting of a notice, or the affixing of a location stake, does not constitute a perfect. location; the marking of boundaries is essential."

Miller v. Taylor, 6 Colo. 41. 2 Erhardt v. Boaro, 3 McCrary, 19, 8 Fed. Rep. 860, 113 U. S. 527; North Noonday M. Co. v. Orient M. Co., 6 Sawy. 503, 11 Fed. Rep. 125. Belk v. Meagher, 104 U. S. 279, 26 L. ed. 739.

5 Hauswirth v. Butcher, 4 Mont. 299, 1 Pac. Rep. 714.

6 Newbill v. Thurston, 65 Cal. 419. 7 Gonn v. Russell, 3 Mont. 358; Holland v. Mt. Auburn M. Co., 53 Cal. 149; Gleeson v. Martin White M. Co., 13 Nev. 442; Newbill v.

4 Zeckendorf v. Hutchinson, 1 N. Thurston, supra. For marking boundaries generally, see post, § 385 et seq.

Mex. 476, 9 M. R. 483.

CHAPTER III.

MARKING THE LOCATION ON THE GROUND.

381. The requirements of the federal statute - Importance, origin. 382. The early rule in California.

383. Canadian statutory provisions require the marking of bound

aries.

384. Requirements of statute mandatory-Reason of the rule.

385. Marking must furnish an index - Not necessary to be placed on the ground itself.

386. Sufficiency of marking is a question of fact.

387. Same-Exception - Question of law.

388. Boundaries of placer claims, as well as lodes, must be marked. 389. Guiding rules-Some marking necessary- What held suffi cient-What not.

390. Same- How marked-Fencing not necessary

sufficient.

Visible marks

391. Same subject — Cases where marking was held sufficient — Absolute certainty not required.

392. Same- What should be included — Actual markings on the ground control over description in location notice.

393. Time within which boundaries must be marked-State statutory provisions - Who may take advantage of failure to mark.

394. When boundaries may be changed.

395. Correcting insufficient marking - Markings by trespasser - Effect of.

396. Proof of boundary stakes.

397. Excessive boundaries — Effect of.

398. Same subject - Prevailing doctrine that claim is void only as to

excess.

399. Maintaining boundaries.

400. Summary -Doctrine of this chapter restated.

§ 381. The requirements of the federal statute - ImportanceOrigin.- The provision of the United States statute on this subject is, that "the location must be distinctly marked on the ground so that its boundaries can be

readily traced." The importance of defining surface boundaries has always been recognized and cannot be overestimated. It is the essential prerequisite to acquiring any right under the federal statute. Similar requirements existed in marking the boundaries under the Spanish and Mexican law, concerning which Señor Gamboa says: "After the first discoverer has measured out his boundaries, the rule to be observed in regard to all other persons as to such new discovery is that they shall have their boundary stakes set out in the order in which they make application for that purpose, so that it is the diligence of the party in applying first which entitles him to a preference over the others."2

In the tin-bounding in Cornwall and Devonshire,3 in the "setting out of gales" in the forest of Dean, and the measuring of "meers" in Derbyshire,5 similar provisions existed; and the early law of France, which is still the law, has substantially the same provision. There the discoverer procures a concession in the nature of a license upon the particular vein discovered, which, when obtained, is measured as length or duration of a stake in the particular mine or within the bounding plane specified in the concession. The power to make this grant embraces the right to fix the bounding planes of the concession."

§ 382. The early rule in California.- The same doctrine was recognized in California and elsewhere on the

117 Stat. at L, p. 92; R. S. U. S., ney, Mines, p. 489; Bishop of Win2324. chester v. Knight, 1 P. Wms. 406.

2 Gamboa's Com., ch. 8, § 17. See also Id., ch. 8, § 11; Rockw. Mex. Law, pp, 212, 218.

3 Collier, Mines, pp. 17 to 33; McSwinney, Mines, p. 439; Curtis v. Daniel, 10 East, 273. See also ante, SS 32 to 34 inclusive.

4 Collier, Mines, p. 18; McSwinney, Mines, p. 482.

5 Collier, Mines, p. 18; McSwin

6 De Fooz, Mines, pp. 30, 87, 101, 120, 130. "It is in virtue of these powers that it is prescribed in the acts of concession to fix administratively these limits by plain and immovable marks, and that, to this end, it is stipulated that the landmarks shall be placed on all the points serving as bounds where this measure shall be deemed necessary." Id., p. 120.

Pacific coast prior to the enactment of the federal statutes, and was exemplified in the practice of "staking the claim," where the rule was that "one seeking to hold a mining claim by virtue of prior possession alone, without any reference to local mining customs, must mark out his boundaries by such distinct physical marks or monuments as will indicate to any person what his exterior boundaries are." The purpose of thus marking boundaries, then as now, was and is, to apprise all comers entering upon it of the nature and extent of the claim held by the locator. The duty thus cast upon the locator is imperative. He may acquire rights in this way; he can do so in no other.

§ 383. Canadian statutory provisions require the marking of boundaries. Many of the provinces of the Dominion of Canada have enacted statutory provisions upon the subject of marking boundaries of mining claims. These provisions may be grouped in two general classes: First, those which provide for a survey of the claim by a government surveyor, whose duty is to mark the boundaries of the claim by substantial stakes and visible marks, connecting this survey with some known point in previous surveys, or with some other known point or boundary, after which a map is prepared by him in accordance with such survey, at the cost of the applicant, and filed in the department of crown lands. Second, those which provide that the claims shall be marked by two or more substantial posts, one of which is called the initial post, upon which is marked the name of the claimant and the name of the claim, together with the approximate bearing thence to the other posts of the claim.

The provinces of Ontario,

1 Hess v. Winder, 30 Cal. 349; English v. Johnson, 17 Cal. 107. See also Live Yankee M. Co. V. Oregon M. Co., 7 Cal. 40.

2 Kelly v. Taylor, 23 Cal. 11.

Quebec' and Manitoba are

62 Vict., ch. X, § 27; Mines Act of Ontario, ch. 36, § 27.

4 Mining Law of Quebec, § 5, art. 1429; Act of 1892, 55 and 56 Vict., ch. XX.

3 R. S. Ont. 1897, 61, Vict., ch. XI;, 5 Mines Act of Manitoba, 1897, § 8.

embraced within the first class, while the second class contains the provinces of Yukon, Nova Scotia,2 British Columbia, the Dominion lands of Manitoba and Northwest Territory; and the statutory provision of the province of New Brunswick is not essentially different."

§ 384. Requirements of statute mandatory Reason of the rule. It is obvious that the statute is mandatory and that its requirements must be strictly complied with. Upon the correct observance of this provision of the statute, more than upon any other, depend the miner's rights. It is therefore indispensable that the claim shall be so marked upon the ground, whatever means are employed for that purpose, that with the physical marking, taken in connection with incidental evidence depending thereon, the boundaries of the claim can be readily traced. The reason of the rule is obvious, and it is that those seeking to locate in the vicinity may know what is already claimed. As was said by Judge Hallett in an early case: "The government gives its lands to those citizens who may discover precious metal ores therein, upon the condition that they define the sub

1 Regulations governing placer mining in the provisional district of Yukon, approved Jan. 18, 1898, §§ 13 and 15.

2 Act to amend and consolidate the acts relating to mines and minerals, ch. I, § 13.

3 Placer Mining Act of British Columbia, 1891, ch. 26, as amended 1898 and 1899, p. 8, § 20.

4 Regulation governing quartz mining claims on Dominion lands of Manitoba and Northwest Territory, approved March 21, 1898, § 12. 5 Mining Act of New Brunswick, April 16, 1891, p. 13, § 36.

6 Croesus M. Co. v. Colorado Land & M. Co., 19 Fed. Rep. 78; Funk v. Sterrett, 59 Cal. 613; Taylor v. Mid

dleton, 67 Cal. 656, 8 Pac. Rep. 594; Holland v. Mt. Auburn G. Q. M. Co., 53 Cal. 139; Gelcich v. Moriarty, id. 217; Mt. Diablo M. Co. v. Callison, 5 Sawy. 439, 9 Morr. 616, Fed. Cas. 9,886; Becker v. Pugh, 18 Colo. 243, 29 Pac. Rep. 173; North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299, 1 Fed. Rep. 522; Taylor v. Parenteau, 23 Colo. 368, 48 Pac. Rep. 505; Pollard v. Shively, 5 Colo. 309: Hansen v. Fletcher, 10 Utah, 266, 37 Pac. Rep. 480; Patterson v. Tarbell, 26 Oreg. 29, 37 Pac. Rep. 76, 79; Warnock v. De Witt, 11 Utah, 324, 40 Pac. Rep. 205; Pharis v. Muldoon, 75 Cal. 264, 7 Pac. Rep. 70; Marshall v. Harney Peak M. & M. Co., 1 S. Dak. 350, 47 N. W. Rep. 290.