allegation of compliance with this statute requiring a verified declaratory statement to be filed for record in the county recorder's office.1 All these technical rulings lead to the conclusion either that the law is itself wrong, or that the interpretation of it by the court is wrong, for it certainly cannot be right to impose such hardships upon the locator. Moreover, it is next to impossible to reconcile the conclusions of the court with the general and controlling principles of the law as above indicated. § 423. Doctrine of this chapter restated. It thus appears that while the statute of the United States, strictly construed, does not require any record of a mining claim to be made, still, by plain inference at least, it was expected, if not intended, by the framers of the federal statute, that a record should be kept in all cases; that it is competent, under the power conferred by section 2324, for state legislatures, and, in case of their silence, the miners of the district, to make reasonable laws and regulations upon this subject; and that many, if not all the states and territories, have enacted supplemental statutes upon the subject. It further appears that the federal statute and nearly all state and district laws require that the record refer to such natural objects or permanent monuments as will identify the claim; that what are such objects and monuments is generally a question of fact; and that in absence of proof to the contrary, adjoining or non-adjoining patented or known claims will be presumed to be such permanent monuments; that trees blazed or marked, confluence of streams, the junction of roads, mountain peaks and canyons, are all to be considered as such. It further appears that by some statutes the final location certificate, notice or declaratory statement is required to be verified, and that a very strict con 1 Power v. Sla (Mont., 1900), 61 Pac. Rep. 468. See also McKay v. Mc Dougall (Mont., 1901), 64 Pac. Rep. 669. 2 Metcalf v. Prescott, 10 Mont. 284. struction of this statute has been adopted by the supreme court of Montana. It further appears that most of the statutes provide for a record to be made within a given time, but that this statute, while mandatory as to the record itself, is only directory as to time, and, in the absence of intervening rights, a record made at a subsequent time will be held sufficient; that, otherwise than this, these statutes are valid and binding rules, and are enacted to be obeyed and followed. CHAPTER V. AMENDMENTS AND ADDENDA. § 425. Additional certificates and amendments - Preliminary observations-State statutory authority-Doctrine of relation-Change of boundaries. 426. Same subject-State statutes original date. -When amendment will relate to 427. Same subject - Colorado authorities discussed-General purpose and effect of amendments-Relation-Certificate-Overlapping dead claim. 428. Amendment or addendum to notice - Record and marking independent of statute - How far permissible. 429. Cannot affect intervening rights - Estoppel by first record. 430. Uninjured subsequent locator cannot complain as to description. Amendment 431. Amendment made before expiration of location period cannot be questioned. 432. The doctrine of this chapter restated. § 425. Additional certificates and amendments - Preliminary observations - State statutory authority-Doctrine of relation - Change of boundaries.- Amendments in the form of addenda have always been approved and given effect by the land department; and, acting upon this practice, locators have gone to considerable length in making amendments or addenda. Where the actual boundaries of a claim are not established, or where the purpose of the amendment or addendum is to more accurately describe the claim and tie it to permanent monuments, no valid objection can be made to it. The statute, as we have had occasion to remark, requires that the location shall be marked on the ground, and, when this is done, any error or omission in describing it in the notice or record should, in the interest of justice, be corrected at any time. Besides this, several of the states, no tably Colorada, Montana and South Dakota, have enacted statutory provisions authorizing the making and filing for record of additional, or amended, notices of location, declaratory statements, or location certificates, as they are variously called. But, whether authorized by state statute or not, it is the right of the locator, according to the trend of judicial opinion, and correctly so, as we think, to file and record such amendments at any time. When so filed, in the absence of intervening rights, or for mere corrections, they should operate by relation to the date of the original location, for the purpose of cutting off any subsequent locations, interfering or overlapping surface boundaries, where the surface boundaries of the original location sought to be amended were themselves so marked upon the ground that they could be readily traced; it being a controlling principle of the doctrine of relation that it will operate upon equitable lines, but never to do a wrong; and it could not be considered as wrong, where, by reasonable intendment, it could be ascertained with reasonable certainty what was sought to be claimed by the original location. There is no rule better founded in reason, law or convenience than this doctrine of relation, by which all the several parts and ceremonies necessary to complete a conveyance or establish an estate shall be taken together as one act, and operate from the substantial part by relation. But the doctrine is never applied when it would wrongfully defeat the rights of third persons; for, it is said, "relations are fictions in law which will never do wrong;" and they can never be applied to a void act. So, in the matter of acquiring right to mining claims, the notice of location, being the inception of the grant from the government, all matters by way of mere amendment will relate to the first step of the transac 120 Am. & Eng. Encyc. Law (1st ed.), pp. 726-27, citing, which see, Landes v. Brant, 10 How. (U. S.) 348; Rogers v. Brent, 10 Ill. 573; Barr v. Gratz, 4 Wheat. 213; Cav ender v. Smith, 5 Iowa, 157; Menville's Case. 13 Coke, 261; Jackson v. Douglas, 5 Cow. (N. Y.) 458; Case v. De Goes, 3 Cai. (N. Y.) 261; Sampson v. Thornton, 3 Met. (Mass.) 275. tion, where the boundaries are not sought to be changed. Of course, any attempt to change the boundaries would be of no effect if they interfere with intervening rights. But even boundaries may be changed, if that can be done so as not to interfere with or prejudice the rights of third persons.1 § 426. Same subject - State statutes When amendment will relate to original date. Many of the states and both the mining territories have enacted statutes authorizing amendments to the location certificates in certain instances. These statutes are progressive in their nature and are possessed of the spirit of the time. It is unnecessary to reproduce their substance at this time, inasmuch as we have given them in full in the Appendix. Their purpose is apparent, and is to correct any mistake or omission which, by reason of inadvertence or a misconception of the strike of the vein, or for any other reason, crept into the original notice or location certificate. In an early case the law was thus stated by Judge Hallett: "The first record of a mining claim is usually if not always imperfect, and it is the policy of the law to give the locator an opportunity to correct his record when defects are found therein, and when so corrected the amendment takes effect with the original as of the date thereof." 2 § 427. Same subject-Colorado authorities discussedGeneral purpose and effect of amendments - Relation Certificate Overlapping dead claims. In an important case in Colorado it was held that where an amendment to a 1 Golden Fleece M. Co. v. Cable Cons. M. Co., 12 Nev. 312. See also McKay v. McDougall (Mont., 1901), 64 Pac. Rep. 669; Omar v. Soper, 11 Colo. 389, 18 Pac. Rep. 443; McEvoy v. Hyman, 25 Fed. Rep. 526. See also, where it will be applied in certain cases against third persons having notice, Van Cott v. Moore, 26 Mo. 92. 2 McEvoy v. Hyman, 25 Fed. Rep. 596; Strepy v. Stark, 7 Colo. 614, 5 Pac. Rep. 111. See also Faxon v. Barnard, 4 Fed. Rep. 702; McKay v. McDougall (Mont., 1901), 64 Pac. Rep. 669. |