through inadvertence or otherwise, overlap another claim. We must not overlook the fact that, as stated in Deeney v. Mineral Creek Co., supra, no appreciable time intervenes between discovery and the position of the location notice under our statue. In many instances, the boundaries of adjoining claims are doubtful by reason of destruction or obliterations of monuments, and in such instance, without accurate survey, such boundaries cannot be definitely ascertained. To hold that, because through honest mistake the small portion of the location upon which the notice is posted overlaps an adjoining claim, therefore the whole claim is void, is to declare that a miner must carry with him at the very start a skilled surveyor in order to be certain that his location is valid. We do not believe this to be within the spirit of the mining. laws, which have ever held that, in the matter of location notices, the court will take a liberal, and not a narrow, view. Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560, 28 L. Ed. 1113; 1 Lindley on Mines, 355; Gird v. Calif. Oil Co. (C. C.) 60 Fed. 531; Donahue v. Meister, 88 Cal. 121, 25 Pac. 1096, 22 Am. St. Rep. 283.

Nor do the views here announced overlook the settled principle that a location held by patent or by prior location is property in the highest sense, and that no rights upon it can be initiated by trespass. We hold, however, not that a conflict with an adjoining claim by a subsequent locator confers any rights as against such prior claim, but that, as to the portion of the mining claim lying without such claim, the location is not rendered void by the mere fact that the notice may be upon such patented or previously located ground. As above pointed out, it is none the less within the lines of the location as made, and that is all the statute requires. The precise point here considered seems never to have been considered by the courts; but, in the case of Perigo v. Erwin (C. C.) 85 Fed. 904, the facts were not dissimilar. In our judgment, therefore, the court did not err in withdrawing from the jury the immaterial issue as to the west boundary of Santa Rita No. 33. The judgment is accordingly affirmed.

* * *

* * *

BUTTE NORTHERN COPPER CO. ET AL. V. RADMILOVICH. 1909. SUPREME COURT OF MONTANA. 39 Mont. 157, 101 Pac. 1078.

CONSOLIDATED actions [in support of adverse claims] by the Butte Northern Copper Company against John Radmilovich, and John Stepan against the same defendant. Defendant appeals in each case from a judgment for plaintiff from an order denying a new trial,

and from an order amending the judgment. Order denying a new trial affirmed in each case.

Order in each case amending the judgment reversed, and causes. remanded with instructions to strike out the amendment, and, as so amended, judgment affirmed.

J.19—*

*

*

HOLLOWAY, J.19 *** At the conclusion of the evidence the court found that defendant had posted his notice of location of the Balkan lode claim three days prior to the time plaintiffs posted their notices of location. The finding proceeds: "In this case both parties proceeded to do and did all things necessary to make their locations valid, save that defendant's notice of location which was posted three days prior to plaintiffs' was not posted 'at the point of discovery' as required by statute, but was posted 60 feet west of a vein exposure in the Sea Lion cut. Further, his notice was of a north and south vein, while the above vein exposure was of an east and west vein." The conclusion of the court was that plaintiffs are entitled to the ground in controversy and to a patent therefor. A judgment was accordingly rendered and entered in each case in favor of the plaintiffs and against the defendant. * *The defendant appealed. * * The trial court found that defendant was prior in time in posting his notice of location, but held the plaintiffs' locations prior and superior, because (a) defendant's location notice was not posted at the point of discovery, and (b) his notice described a north and south vein, while the vein exposure was of an east and west vein. The evidence is sufficient to sustain the finding of the court that the defendant did not post his location notice at the place of discovery, as required by section 3610 above. The evidence tends very strongly to show that he made discovery on March 15th or earlier; that he discovered mineral-bearing rock in place near the extreme westerly boundary of his claim and several hundred feet from the place where he posted his notice of location; that he also found mineral-bearing rock in place exposed in an excavation on the Sea Lion claim, some 50 or 60 feet from the place where he posted his location notice. We agree with counsel for appellant that the locator is not required to sink his discovery shaft at the point of discovery (O'Donnell v. Glenn, 8 Mont. 248, 19 Pac. 302); but that question is not the one involved here. The question here presented is, must he post his notice of location at the point of discovery? The statute provides that he shall do so. The successive steps provided for are (1) discovery, (2) posting notice of location, (3) marking boundaries, (4) sinking discovery shaft, etc. In his article on Mines and Minerals, 27 Cyc., at page 564, in speaking of the place where the notice of location must be posted, Judge Clayberg says: "The place of posting the notice is generally designated by statute or local rule, the requirements of which must be complied with." As observed above,

Parts of the opinion are omitted.

our statute requires that the notice shall be posted "at the point of discovery." The posting of this notice is done long before the discovery shaft is required to be sunk, and the only direction as to where the discovery shaft shall be sunk is that it shall be within the claim and upon the lode or vein. It cannot be said that the defendant complied literally or substantially with the statute in posting his notice of location at the point where it was posted. But our attention is directed to the fact that upon April 15th he sunk his discovery shaft at the point where he posted his notice of location, and that the vein was disclosed in this shaft. The record bears out this statement, and, but for the intervention of plaintiffs' rights, such discovery would have supported his location (27 Cyc. 558); but because of the intervention of the rights of plaintiffs, defendant's location must be held to be postponed until April 15th, the date when he posted his notice of location at the point of discovery. We do not agree with the conclusion of the trial court that a notice of location describing the course of the vein as north and south will not support a location of a claim along a vein the general course of which is east and west (Sanders v. Noble, 22 Mont. 110, 55 Pac. 1037); but this is of little consequence in this case, in view of what is said above. * * *

The causes are remanded to the district court with directions to strike out the amendment in each judgment awarding costs, and, as so amended, the judgments will be affirmed. Each party will pay his own costs of these appeals.20

Section 3.-Marking the Location.

FEDERAL STATUTES.

Sec. 2324. * * * The location must be distinctly marked on the ground so that its boundaries can be readily traced * *.-Rev. St. U. S., § 2324.

20 In Doe v. Waterloo Min. Co., 17 C. C. A. 190, 70 Fed. 455, 461, Knowles, District Judge, said: "It is urged that the notice posted by Newbill was not placed upon the vein located. The evidence is that it was placed upon a part of the said vein,-a spur thereof. It was not necessary that the notice should be placed upon the croppings of the vein. If near by the same, it would be sufficient if it indicated the vein sought to be located. Phillpotts v. Blasdel, 4 Morr. Min. R. 341. Parks and his associates had no trouble in determining what was the vein Newbill sought to locate."

An error in the description contained in the notice by which the subsequent locator was not misled in tracing the boundaries is immaterial. Sturtevant v. Vogel, 167 Fed. 448. If by any reasonable construction the notice of location imparts to subsequent locators knowledge of the location, it is sufficient. Nicholls v. Lewis & Clark Co., 18 Ida. 224, 109 Pac. 846; Flynn Group Min. Co. v. Murphy, 18 Ida. 266, 109 Pac. 851.

COLORADO STATUTE.21

Before filing such location certificate the discoverer shall locate his claim by:

Third-By marking the surface boundaries of the claim.-Rev. St. Colo. 1908, § 4197.

Such surface boundaries shall be marked by six substantial posts hewed or marked on the side or sides which are in toward the claim and sunk in the ground, to-wit: one at each corner and one at the center of each side line. Where it is practically impossible on account of bed rock to sink such posts, they may be placed in a pile of stones, and where in marking the surface boundaries of a claim any one or more of such posts shall fall by right upon precipitous ground, where the proper placing of it is impracticable or dangerous to life or limb, it shall be legal and valid to place any such post at the nearest practicable point, suitably marked, to designate the proper place."-Rev. St. Colo. 1908, § 4198.

DOE v. WATERLOO MIN. CO.

1895. CIRCUIT Court of AppeaLS. 17 C. C. A. 190, 70 Fed. 455Before GILBERT, Circuit Judge, and KNOWLES and HAWLEY, District Judges.

KNOWLES, District Judge. 22-The Waterloo Mining Company, on the 12th day of September, 1889, made an application at the United States land office at Los Angeles, Cal., for a patent for the Red Jacket quartz lode mining claim. John S. Doe, the appellant in this case, within 60 days thereafter, the time allowed by law,-filed in said land office his adverse claim to the claim made in the application of said company, in which he, the said Doe, claimed to be the owner of a portion of the premises described in said application as the "Red Jacket Lode Claim," and which portion he claimed to be the Mammoth lode claim. Within 30 days after filing his adverse claim said Doe commenced this action against said company in order to determine the right to the possession of that portion of the Red Jacket claim which is described as the "Mammoth Claim." The cause was commenced in the superior court of San Bernardino county, Cal., and on petition was removed from the same to the United States Circuit Court for the southern district of California. The cause was tried in the last-named court, and judgment rendered for the said company. The plaintiff then appealed the cause to this court.

From the evidence it appears that on the 26th day of March, 1881, one P. H. Newbill made the discovery of a mineral-bearing vein or lode in what was called "Grapevine Mining District," San Bernardino county, Cal. On that day he posted a notice upon said premises known as the "Red Jacket" lode or claim, claiming the

"See note 1, ante. See also relocation statute, p. 143, ante.

22

Parts of the opinion are omitted. See ante, p. 75, for some of such parts. 12-MINING Law

right to locate 1,500 feet on said lead and 300 feet on each side of the same, and also claiming the right to have 20 days from said date in which to complete his boundary monuments. Subsequent to the said 26th day of March he went to the said premises with the view of marking the boundaries of his claim, but owing to sickness was prevented from so doing. It also appears he had some doubts as to how he should locate his claim. On the IIth or 12th of April, following, he made an agreement with G. B. Wallace, H. C. Parks, and J. B. Farrell to the effect if they would complete his location on said ground he would give them one-half of said claim. In accordance with said agreement, on one of said dates these parties did mark the boundaries of said Red Jacket claim by placing along the same, at the sides and ends thereof, some seven monuments of stone, about 22 feet high. They posted a notice on the center monument on the east end line, describing the same, and which was a location notice. On some of the other monuments notices were placed indicating the corners of the location. said location notice names the claim as the "Red Jacket Gold, Silver, and Nickel Quartz Mining Claim." The name in the Newbill notice was the "Red Jacket Claim." On the 6th day of April, 1881, six days before Parks, Wallace, and Farrell marked the boundaries. of their location, and some II or 12 days after Newbill had posted his notice on the same, T. C. Warden and Dr. G. W. Yager located what they called the "Mammoth Lode." This included a part of the Red Jacket lode claim. There is no contention but that the boundaries of both claims were properly marked.

The

The first contention is that the location of the Red Jacket gold, silver, and nickel mining claim is not a completion of the claim made by Newbill. The supreme court of California, upon the same evidence, in the case of Newbill v. Thurston, 65 Cal. 419, 4 Pac. 409, held that it was not. With the highest respect for that distinguished court, I cannot come to the same conclusion. Newbill undoubtedly made some kind of a mineral discovery on the ground. located. He posted a notice on this ground claiming the right to locate some 1,500 feet on the same,-500 feet in one direction and 1,000 feet in another from the point where he posted his notice. He went upon the ground after this with the view of marking the boundaries of his location, and was prevented by sickness. He made an agreement, for a valuable consideration, with Parks, Wallace and Farrell, by which they were to complete his location. In pursuance of that agreement they did complete it. That was the contract and intention of all parties. The fact that a new location notice was posted by them on the ground, in which an addition of some descriptive terms was applied to the name given in the location notice of Newbill, cannot make it a new location. The ground was what was sought, not a name. There is no objection to changing the name of a location until after a record is made of the same.