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locator be on the ground actually engaged in making the location, another could not locate over him, yet, in the absence of local rules authorizing it, no time is allowed to perfect the location; that until it is actually marked on the ground the claim is not appropriated so as to prevent its acquisition by a subsequent locator.1

This rule was followed by the supreme court of Oregon.2

The supreme court of New Mexico holds that under the laws of that territory such a perfected notice of location as will, when recorded, fulfill the requirements of the federal statutes must be posted contemporaneously with discovery.3

The circuit court of appeals for the ninth circuit was called upon to determine the question upon the same evidence and the same state of facts arising in one of the California cases, and that tribunal declined to accept the rule announced by the California courts. The court of appeals held that after a discovery and posting a notice thereof the locator had a reasonable time in which to complete the location; what was a reasonable time would depend upon the facts of each particular case; that evidence of customs prevalent in other localities on this subject might be received for the purpose of aiding the court in its determination, and that, under the circumstances of that case, twenty days was a reasonable time."

The doctrine announced by the circuit court of appeals is in consonance with the views expressed by the

'Newbill v. Thurston, 65 Cal. 419, 4 Pac. 409; Pharis v. Muldoon, 75 Cal. 284, 17 Pac. 70.

Patterson v. Tarbell, 26 Or. 29, 37 Pac. 76. See, post, § 372.

Deeney v. Mineral Creek M. Co. (N. Mex), 67 Pac. 724.

Newbill v. Thurston, 65 Cal. 419, 4 Pac. 409.

Doe v. Waterloo M. Co., 70 Fed. 455; affirming decision of Judge Ross, Doe v. Waterloo, 55 Fed. 11.

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supreme courts of Nevada,1 Idaho, Montana, and Washington, and accords with the spirit of the law as interpreted by the supreme courts of Colorado, and South Dakota, and the supreme court of the United States."

To hold that the miner, as soon as he discovers a lode, must immediately stake the territory which he is entitled to claim, in order to protect it from invasion and claims of other persons, would be an unreasonable, if not impossible, requirement.8

What is a reasonable time for the completion of the location depends upon the nature of the ground to be located, the means of properly marking, and the ability to properly ascertain the dimensions and course, or strike, of the vein."

As so much depends upon the locator determining the position of his vein in the earth and the course of its apex, and as a failure to make his location and establish his end-lines as the law contemplates is accompanied with such serious results, it would seem that congress never intended to compel the discoverer to immediately proceed at his peril with the marking of his boundaries. The posting of a preliminary notice, though not specially authorized by statute, should be sufficient to protect the discoverer for a reasonable time, at least,

1 Golden Fleece M. Co. v. Cable Cons. M. Co., 12 Nev. 312, 329; Gleeson v. Martin White M. Co., 13 Nev. 442; testimony of Chief Justice Beatty, Rep. Pub. Land Com. 399.

Burke v. McDonald, 2 Idaho, 646, 33 Pac. 49.

'Sanders v. Noble, 22 Mont. 110, 55 Pac. 1037, 1045.

'Union M. and M. Co. v. Leitch, 24 Wash. 585, 85 Am. St. Rep. 961, 64 Pac. 829.

Murley v. Ennis, 2 Colo. 300; Patterson v. Hitchcock, 3 Colo. 533. 'Marshall v. Harney Peak Tin M. Co., 1 S. Dak. 350, 47 N. W. 290. 'Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. Rep. 560.

Omar v. Soper, 11 Colo. 380, 7 Am. St. Rep. 243, 18 Pac. 443; Sanders v. Noble, 22 Mont. 110, 55 Pac. 1037, 1045.

'Doe v. Waterloo M. Co., 70 Fed. 455, 460.

within which he might determine approximately the all-important facts upon which the value of his property to a great degree depends.1

What is a reasonable time is a question of law,2 and depends upon the circumstances of each case.

In states or localities where the laws or district regulations fix a given time within which certain acts subsequent to the discovery are required to be performed, the posting of a preliminary notice, specifying the name of the lode, date of discovery, and the intention to locate the claim, is equivalent to actual possession.*

Whenever preliminary work is required to define and describe the claim located, the first discoverer must be protected in the possession of the claim until sufficient excavations and development can be made to disclose whether a vein or deposit of such richness exists as to justify the work to extract the metal. Otherwise, the whole purpose of allowing the free exploration of the public lands for the precious metals would in such cases be defeated, and force and violence in the struggle for possession, instead of previous discovery, would determine the rights of the claimants.

The effect of this rule is practically to reserve, after the discovery and during the statutory period allowed for perfecting the claim, a surface area circular in form, the radius of which may be the length claimed on the discovered lode, within which area the location may be

'Union M. and M. Co. v. Leitch, 24 Wash. 585, 85 Am. St. Rep. 961, 64 Pac. 828.

Patterson v. Hitchcock, 3 Colo. 533, 540.

3 Union M. and M. Co. v. Leitch, 24 Wash. 585, 85 Am. St. Rep. 961; 64 Pac. 828.

Erhardt v. Boaro, 8 Fed. 692.

Sanders v. Noble, 22 Mont. 110, 55 Pac. 1037, 1045.

'Erhardt v. Boaro, 113 U. S. 527, 535, 5 Sup. Ct. Rep. 560; Marshall v. Harney Peak Tin M. Co., 1 S. Dak. 350, 47 N. W. 290; Omar v. Soper, 11 Colo. 380, 7 Am. St. Rep. 243, 18 Pac. 443.

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ultimately made. "The locator may use his discovery as a pivot, and move his lines, at least in the gen"eral course of his vein given in his notice, so as to "secure the full benefit of his discovery."1 Such is

the manifest intent of the rule. This was the custom under the act of 1866. The miner posted his notice, claiming so many linear feet on the vein; and under the law as then interpreted, prior to fixing the situs of his lode, by filing a diagram for patent purposes, he might follow the vein wheresoever it ran to the length claimed."

When he filed his diagram and inclosed his lode within surface boundaries, his right to pursue the vein on its course ceased where it passed out of his surface lines.3

Under the existing state of the law, the location must be marked within a certain period of time, whereupon the locator's rights became definitely fixed and confined, except as to the extralateral right, to his marked boundaries. Until this is done, however, and within the prescribed periods, his right to be protected to the extent heretofore stated is well settled.*

If, however, he marks his boundaries indicating the extent of the location without waiting for the time allowed him, and other locations are made, guided by the boundaries as marked, he will not be permitted subsequently to swing his location so as to include the surface of the intervening locations."

If he fails to comply with the law within the statutory period, his rights would thereafter be no greater than the rights of one in possession without discovery. He might protect his pedis possessio against forcible intrusion

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1 Sanders v. Noble, 22 Mont. 110, 55 Pac. 1037, 1046.

'Johnson v. Parks, 10 Cal. 447. See, ante, § 58.

• Ante, § 60.

Sanders v. Noble, 22 Mont. 110, 55 Pac. 1037, 1045; Bramlett v. Flick, 23 Mont. 95, 57 Pac. 869.

Wiltsee v. King of Arizona M. and M. Co. (Ariz.), 60 Pac. 896.

and hold it as against one having no higher right;1 but he would be a mere occupant without color of title, and his possession must yield to any one possessing the necessary qualifications, who enters peaceably and in good faith for the purpose of perfecting a valid location.2

ARTICLE IV. THE DISCOVERY SHAFT AND ITS EQUIVALENT.

343. State legislation requiring
development work as pre-

requisite to completion of
location.

§ 344. Object of requirement as
to development work.

§ 345. Relationship of the discovery to the discovery shaft.

§ 346. Extent of development work.

343. State legislation requiring development work as prerequisite to completion of location.-Of the precious-metal-bearing states, California and Utah have thus far enacted no laws requiring work of any character to be performed as a prerequisite to the completion of a location; therefore, as to these states this article is inapplicable.

The states and territories hereinafter enumerated, however, have supplemented federal legislation by requiring that certain preliminary development work in the nature of a discovery shaft, or its equivalent, shall be performed as a condition precedent to the completion of a lode location. This legislation has been held to be valid. As these state statutes are frequently important

'Crossman v. Pendery, 8 Fed. 693; Field v. Grey (Ariz.), 25 Pac. 793. See Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 4, 14.

See, ante, "Occupancy without color of title," §§ 216-219; Willeford v. Bell (Cal.), 49 Pac. 6.

3 Ante, § 250 (15); Northmore v. Simmons, 97 Fed. 386; Sissons v. Sommers, 24 Nev. 379, 77 Am. St. Rep. 815, 55 Pac. 829; Sanders v. Noble, 22 Mont. 110, 55 Pac. 1037, 1039; Purdum v. Laddin, 23 Mont. 387, 59 Pac. 153. And see Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. Rep. 560; Lockhart v. Johnson, 181 U. S. 516, 526, 21 Sup. Ct. Rep. 665. But see Beals v. Cone, 27 Colo. 473, 83 Am. St. Rep. 92, 62 Pac. 948, 958.

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