ject of the grant with such certainty as may be necessary to prevent mistakes on the part of the government, and on the part of other citizens who may be asking the like bounty."1

§ 385. Marking must furnish an index- Not necessary to be placed on the ground itself. It is quite obvious, as already indicated, that the purpose of the statute is to require such a designation of the ground sought to be claimed as to afford reasonable information on the subject. As was said by the supreme court of California: "The law requires this marking of the claim upon the ground to be done in such a manner that any person of reasonable intelligence may go upon the ground, and readily trace the claim out, and readily find the boundaries and limits of the claim, without instructions, advice or information from any one or thing other than the marking upon the ground, and it is not necessary or required that such a person shall have a copy of the notice of location or necessarily use it in tracing the boundaries of the claim."2 Nor is it necessary that the markings be upon the ground itself, if they are in sufficient proximity thereto to serve the purpose for which they are intended, that is, designate the exterior boundaries of the claim. Upon this subject we find this language by the supreme court of Montana: "All that the statute requires, in our opinion, is that the land shall be so marked upon the ground that the boundaries can be readily traced. This does not mean that the marks shall be upon the actual ground included within the mining claim, but they may be upon any ground adjoining, near enough to readily designate the boundaries. It was certainly never intended that a slight mistake in setting up stakes should invalidate the location. All that was intended is that a person seeking to make a subsequent

1 Faxon v. Barnard, 4 Fed. Rep. 702, 2 McCrary, 44. See also O'Reilly v. Campbell, 116 U. S. 418; Jennison v. Kirk, 98 U. S. 453; Jackson v. Roby, 109 U. S. 441; Drummond

v. Long, 9 Colo. 448, 13 Pac. Rep. 543.

2 Willeford v. Bell (Cal.), 49 Pac. Rep. 6, 8. See post, § 390.

location could go upon the ground referred to, and from the marks find the boundaries of the claim."1

The law itself is specific and need not be misunderstood. The marking is for information of those of equal right, or the would-be locators of the district. Anything which accomplishes this will satisfy the law. will. And where local statutes prescribe a particular kind of marking, such statutes must be complied with.

Nothing short of it

§ 386. Sufficiency of marking is a question of fact.What is or is not a sufficient compliance with the statute upon this subject is a question which is not always easy to determine. The purpose of marking boundaries being, as previously stated,2 to furnish an index to the claim so as to enable subsequent prospectors to ascertain, from physical marks on the ground, the extent of the claim sought to be held by the previous locator, it would seem to follow that the question as to whether the ground is sufficiently marked is purely one of fact, to be determined the same as any other fact in the case. Thus, in a case where the trial court found as a fact "that said Nabob claim is so marked on the ground that its boundaries could be readily traced," this finding, taken in connection with other specific ones as to the courses and distances, was held decisive of the case upon this question.*

§ 387. Same-Exception - Question of law. There are times, however, when this rule does not apply, as, for

1 West Granite Mt. M. Co. v. Granite Mt. M. Co., 7 Mont. 356, 17 Pac. Rep. 547. See also Gleeson v. Martin White M. Co., 13 Nev. 462; Anderson v. Black, 70 Cal. 230, 11 Pac. Rep. 700; Taylor v. Middleton, 67 Cal. 656, 8 Pac. Rep. 594; North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299, 1 Fed. Rep. 522. 2 Ante, § 385.

Taylor v. Middleton, 67 Cal. 656, 8 Pac. Rep. 594; Souter v. Maguire,

78 Cal. 543, 21 Pac. Rep. 183; Meydenbauer v. Stevens, 78 Fed. Rep. 787. See also Seidler v. Lafave, 4 N. Mex. 369, 20 Pac. Rep. 791; Farmington G. M. Co. v. Rhymney G. & C. Co., 20 Utah, 363, 58 Pac. Rep. 832; Wells v. Davis, 22 Utah, 322, 62 Pac. Rep. 3; Hammer v. Garfield M. Co., 130 U. S. 291; McKay v. McDougal (Mont., 1901), 64 Pac. Rep. 669.

4 Eilers v. Boatman, 111 U. S. 356.

instance, where the statute contains certain provisions governing the marking of boundaries, with which the facts show such a total failure of compliance that reasonable men cannot differ. It then becomes the duty of the court to say, as matter of law, that the acts of the locator will not satisfy the demands of the statute. Thus, in an early case in California, where the district rules required that the boundaries be marked by a ditch, with a stake at each of the corners, and the facts showed that none of these acts had been done, the court correctly held that no valid location had been made. The converse of this proposition is equally true, and when the physical marks and notices are such that reasonable men cannot differ as to their sufficiency, the law is satisfied and the court should so declare.3

§ 388. Boundaries of placer claims as well as lodes must be marked. The doctrine is well settled by the courts and by the better line of reasoning in the land office, that the requirements of the statute relative to marking boundaries apply with equal force to placer claims as to lodes. The land office has held that a placer claim, taken by legal subdivisions, need not have its surface boundaries marked, but the supreme court of California announces what would seem to be a better rule. Speaking through Commissioner Hayne they say: "The purpose of the requirement that the claim

1 Mangum v. Bullion-Beck & Champion M. Co., 15 Utah, 334, 346, 50 Pac. Rep. 834; Grand Trunk Ry. Co. v. Ives, 144 U. S. 208.

2 Myers v. Spooner, 55 Cal. 257. See also Upton v. Larkin, Mont. 449, 17 Pac. Rep. 728; West Granite Mt. M. Co. v. Granite Mt. M. Co., 7 Mont. 356, 17 Pac. Rep. 547; Gelcich v. Moriarty, 53 Cal. 217. See Sissons v. Sommers, 24 Nev. 379, 55 Pac. Rep. 829.

3 Eaton v. Norris, 131 Cal. 561, 63 Pac. Rep. 856; Hammer v. Garfield

M. Co., 130 U. S. 299; Jupiter M. Co. v. Bodie Cons. M. Co., 11 Fed. Rep. 666.

4 White v. Lee, 78 Cal. 593, 21 Pac. Rep. 363; Gregory v. Pershbaker, 73 Cal. 109, 14 Pac. Rep. 401; Garrard v. Silver Peak Mines, 82 Fed. 90; Schwab v. Bean, 86 Fed. Rep. 41; McCann v. McMillan, 129 Cal. 350, 62 Pac. Rep. 31; Hauswirth v. Butcher, 4 Mont. 299, 1 Pac. Rep. 714; Sweet v. Webber, 7 Colo. 443, 4 Pac. Rep. 752.

5 Reins v. Murray, 22 L. D. 409.

ant shall mark the boundaries of his claim is to inform other miners as to what portion of the ground is already occupied. The men for whose information the boundaries are required to be marked wander over the mountain with a very small outfit. They do not take surveyors with them to ascertain where the section lines run, and ordinarily it would do them no good to be informed that a quarter-section of a particular number had been taken up. For this reason it is required that the boundaries shall be 'distinctly marked upon the ground.' The construction contended for by the respondent would, in our opinion, defeat the purpose of the requirement."1

§ 389. Guiding rules - Some marking necessaryWhat held sufficient-What not.- There must in fact be some physical marks placed either upon the ground itself or in close proximity to it, sufficient of themselves, or when taken in connection with writings, signs or other marks on the ground, to inform one seeking to identify the claim as to the quantity and identity of the ground claimed. In an early case in California, where the facts showed merely that a notice had been posted at each end of the claim, and that no other marks of any kind had been placed upon it, the court held that inasmuch as this at best merely amounted to marking the two ends of a line, while the statute required the marking of side lines and end lines of the claim, there was not a sufficient marking. This latter case, however, is widely at variance with an early decision by the supreme court of Nevada, where it was held that, in the absence of a local statute or regulation, a stake at each end of the lode line, properly marked, is a sufficient marking of the boundaries of a claim, as the boundaries may be traced from a definitely fixed center line, the vein being the principal

I White v. Lee, 78 Cal. 593.

2 Hess v. Winder, 30 Cal. 349; Golden Fleece M. Co. v. Cable Cons. M. Co., 12 Nev. 312; North Noon

day M. Co. v. Orient M. Co., 6 Sawy. 299, 1 Fed. Rep. 522.

3 Holland v. Mt. Auburn G. Q. M. Co., 53 Cal. 149, 151.

object of the location.' The latter case seems the more sound. The position of the California court, if followed, would result in confusion-it cannot be defended; and in such cases the better rule is to submit the question to the jury.

§ 390. Same- How marked-Fencing not necessaryVisible marks sufficient.- No particular kind of marking is required in the absence of local laws or regulations, and how the claim should be marked would, of course, depend in great measure upon the particular circumstances of each case. Where a claim is upon a barren hillside, so that almost any kind of mark or stake would be visible, the locator should not be confined within as strict limits as would be the case where the claim is situated in brush or trees, where more prominent marks would be necessary in order to comply with the spirit of the statute. But any visible marks upon the ground should not be ignored. So trees blazed or squared and marked as stakes, rock monuments, posts, or the prospect hole, are permanent monuments within the meaning of the statute. All that the statute requires is that the location be so marked that its boundaries can be readily traced, and this does not amount to the requirement that the claim be fenced." This last proposition would seem so obvious to any person possessed of common sense and in

1 Gleeson v. Martin White M. Co., 13 Nev. 442, 456. See also Golden Fleece M. Co. v. Cable Cons. M. Co., 12 Nev. 312.

2 Quimby v. Boyd, 8 Colo. 194, 6 Pac. Rep. 462; Myers v. Spooner, 55 Cal. 257; Southern Cross M. Co. v. Europa M. Co., 15 Nev. 383; Hess v. Winder, 30 Cal. 349.

3 North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299, 1 Fed. Rep. 522; Hess v. Winder, supra.

4 Hansen v. Fletcher, 10 Utah, 266, 37 Pac. Rep. 480. And a de

scription giving other claims for boundaries, if such claims themselves be properly marked, is sufficient. Russell v. Chumasero, 4 Mont. 309, 1 Pac. Rep. 713. See also Eilers v. Boatman, 3 Utah, 159; affirmed, 111 U. S. 356; Warnock v. De Witt, 11 Utah, 324, 40 Pac. Rep.

205.

English v. Johnson, 17 Cal. 107; Rogers v. Cooney, 7 Nev. 213. See also Garrard v. Silver Peak Mines, 82 Fed. Rep. 578; Hess v. Winder, supra.