seen hereafter,' a notice of the location, or the record of it, will not be held invalid by reason of failure to comply with the statute, unless adverse rights have intervened. But it is said these statutes will not be extended beyond the exact letter. Thus in an early case in Montana, where no provision was made in the statute for placer claims, it was held that they did not come within the provision of the law relative to lode claims.2 § 418. Time within which record must be made - Effect of failure to record in time - Recording before posting. All of the state legislatures have enacted statutes requiring a record. All of these statutes prescribe a time within which this record must be made. But while they are mandatory on the question of a record in the first instance, they are directory merely, so far as they relate to the time for making the record, provided no adverse rights have intervened in the meantime. Even where adverse rights have intervened, unless they are founded upon a valid location and compliance with the law, they will be of no avail. As said by the supreme court of Colorado: "If this claim subsequently became liable to relocation by reason of the failure of Omar and his co-owners to record their location certificate within (the statutory time), such default did not inure to the benefit of the appellees, since, as we have seen, they neither made nor attempted to make a relocation." 4 In the absence of any mining rule prescribing a forfeiture 55 Pac. Rep. 829; Eberle v. Carmichael, 8 New Mex. 69, 42 Pac. Rep. 95. See also Mallett v. Uncle Sam M. Co., 1 Nev. 188, 204. 1 Post, § 419. Colo. 614, 5 Pac. Rep. 111; Craig v. 2 Moxon v. Wilkinson, 2 Mont. Rep. 468, and cases cited. 421. 3 Preston v. Hunter, 67 Fed. Rep. 996, 15 C. C. A. 148; Faxon v. Barnard, 2 McCrary, 44, 4 Fed. Rep. 702; Van Zandt v. Argentine M. Co., 8 Fed. Rep. 725; Strepy v. Stark, 7 4 Omar v. Soper, 11 Colo. 380, 18 Pac. Rep. 443. See also Kendall v. San Juan S. M. Co., 144 U. S. 658; McGinnis v. Egbert, 8 Colo. 46, 5 Pac. Rep. 652. for failure to record a claim within a specified time, a locator in the actual possession, and working his claim, will be protected in such possession, even though he does not record his location within the time required. In this, as in all other cases, the right to claim a forfeiture for failure to comply with the recording statute may be waived unless asserted. The mere fact that a notice is recorded before it is posted will not invalidate it." $419. Proof of record-Effect of mistakes of recorder. The record books of a mining district as well as those of the county are admissible in evidence as tending to prove compliance with the law; and the record itself is prima facie evidence of compliance with the statute and the correctness of the record. It is also presumptive evidence of a valid location," including discovery and all the other essential and necessary acts constituting a valid location. A location notice when properly recorded, and which shows a substantial compliance with the statute and district rules in all other respects, has the effect of segregating the ground described in it from the public domain. Where a location is made in accordance with law, and duly filed with the recorder of the district, or county, or both, the locator cannot be injured by any acts of the recorder in failing to properly copy such notice into his records." 1 English v. Johnson, 17 Cal. 107; Thompson v. Spray, 72 Cal. 528, 14 Pac. Rep. 182; Erhardt v. Boaro, 113 U. S. 527. See also McEvoy v. Hyman, 25 Fed. Rep. 596; Sanders v. Noble, 22 Mont. 110, 55 Pac. Rep. 1037. 2 Garfield M. & M. Co. v. Hammer, 6 Mont. 53, 8 Pac. Rep. 153; affirmed, 130 U. S. 291, 32 L. ed. 964. 3 Thompson v. Spray, supra. Flaherty v. Gwinn, 1 Dak. 509; Pralus v. Pacific G. & S. M. Co., 35 Cal. 30. 5 Kramer v. Settle, 1 Idaho, 485. 6 Cheesman v. Hart, 42 Fed. Rep. 98; Jantzen v. Arizona C. Co. (Ariz.), 20 Pac. Rep. 93; Atwood v. Fricot, 17 Cal. 38; Kramer v. Settle, supra. 7 Cheesman v. Shreeve, 40 Fed. Rep. 787: Golden Fleece M. Co. v. Cable Cons. M. Co., 12 Nev. 312; Southern Cross M. Co. v. Europa M. Co., 15 Nev. 383; Jupiter Mine, 4 C. L. O. 114. 8 Piru Oil Co., 16 L. D. 117. 9 Myers v. Spooner, 55 Cal. 257; Kelly v. Taylor, 23 Cal. 11; Weise 420. Of the state statutes requiring location notices and declaratory statements to be sworn to Legislative power as to, reviewed.- California, Montana and Idaho have statutory provisions requiring the location notices or declaratory statements to be sworn to before they are recorded. In Montana, where this provision has received the most attention, it has provoked a very extensive discussion pro and con, its constitutionality, and the power of the legis lature to enact it, having been doubted at various times. It may now be considered, however, to be the settled law of Montana. But while this is true, the circumstances which have brought it about, and the decisions of the court in connection with it, may be examined with profit. But before doing so it may not be improper to say that, while a state legislature or the miners of a district may enact reasonable rules governing the location, and make compliance with them a condition precedent to a valid location, yet they are valid and binding only to the extent that they are reasonable and in harmony with the federal statute. When they impose conditions which in their effect work an extreme hardship, almost impossible of performance, they may be considered as encroaching upon the peculiar and sole prerogative of congress, and to the extent that they do so encroach, by imposing conditions impossible or extremely difficult of performance, they are null and void. Of course this raises a relative question itself difficult of solution, but one which it is believed can safely be left to a court and jury of the vicinage. No better evidence of the vice of such a statute can be found, it is thought, than has confronted the supreme court of Montana in a recent case,' where the court found it necessary to become technical regarding the verification of the declaratory statement. This verification stated that the description of the lode as given in the notice was true and v. Barker, 7 Colo. 178, 2 Pac. Rep. 919: Preston v. Hunter. 67 Fed. Rep. 996. 1 McCowan v. McLay, 16 Mont. 334, 40 Pac. Rep. 602. correct, and that the locators had in every respect complied with the requirements of the law (stating it) and the local rules and customs respecting mining locations. The court decided this to be a verification of the description but not of the notice. It seems to us, with becoming deference to this court and the learned judge who wrote the opinion, that the court adopted a very narrow and restricted view of the law in that case. And while it contented itself by saying that it would not disturb the law, it should, in justice to itself at least, have adopted a broader view of the law, and enlarged rather than restricted its letter to meet its spirit, which must be, as indicated in the previous sections of this chapter, to protect the miner, and not to hamper him with useless and unnecessary technical requirements in order to secure the block of mining ground which is his birthright, and to which he is entitled upon substantial compliance with the law of the government which confers the right, unhampered by any narrow and sometimes impossible conditions sought to be imposed by local authority. We are not unmindful of the principle of law which authorizes the law-making power of every jurisdiction to prescribe, within reasonable limits, the quantum and character of the evidence which shall or may be received by its courts in the determination of a controversy. But wherever, as in this case, that power is restricted by a greater one, it becomes necessary to mark well the environment and see to it that the legislation does not go beyond the power thus conferred, and little by little its provisions be thus wasted, until all that is of benefit in the original is gone. Moreover, it must be remembered that the power to so legislate is not conferred by state constitution nor territorial enabling acts, but by the law of congress authorizing district rules.2 1 See especially authorities cited in notes to §§ 405, 409, ante. 2 R. S. U. S., § 2324. See also In re Monk, 16 Utah, 100, 50 Pac. Rep. 810. § 421. Same subject-Verification of notice Acknowledgment Montana decisions examined - Legislation close to the border line between the valid and the voidUnsigned verification - Undated notice-Time. When the question discussed in the last section first came before the Montana court,' it was held by McConnell, C. J., speaking for the court, that the provisions of the Montana statute were sufficiently complied with by making and filing for record the declaratory statement upon information and belief, supplied by an agent and joint locator who had first seen and discovered the lode. The excuse for permitting such an easy compliance with the statute is found in the circumstance that the court doubted the validity of the legislation. In a later case,2 which was twice before the court, upon the first appeal it appeared that the location notice contained the date but the verification did not. The question to be determined was whether the section of the federal statute requiring "that all records of mining claims hereafter made shall contain the name or names of the locators, the date of location,” etc., and the provisions of the statute of the territory of Montana, which required the declaratory statement to be under oath, describing the claim as required by the laws of the United States, were sufficiently complied with. Speaking on the question the court said: "Without the oath the statement is good, and with it it is fatally defective. This brings us face to face, for the first time, with the constitutional question whether the territorial legislature is not prohibited by the organic act from passing the act under consideration. Section 1851, Revised Statutes of the United States, provides that 'the legislative power of every territory shall extend to all rightful subjects of legislation, not inconsistent with the constitution and laws of the United States, that no law shall be passed interfering 1 Wenner v. McNulty, 7 Mont. 30, 14 Pac. Rep. 643. 2 O'Donnell v. Glenn, 8 Mont. 248, 19 Pac. Rep. 302. 3 R. S. U. S., § 2324. |