3

it stops the pursuit of the vein on its strike. It is therefore to this extent in law an end-line,1 whether so intended by the locator or not.2 We call it a side-end line for descriptive purposes. Whether the side-end line performs the function of an end-line for the purpose of determining the extralateral right, will depend upon circumstances. If the vein crosses two side-lines, substantially as in the Flagstaff-Tarbet and ArgentineTerrible cases, where the crossed side-lines are parallel, there is no reason why the vein may not be followed on its downward course throughout its entire depth, between vertical planes drawn downward through the side-end lines, produced indefinitely in their own direction, and the courts have so held. If the side-end lines are not parallel, as those lines are indicated in figure 41, and the dip of the vein is toward their convergence, these lines may be extended in their own direction until they meet, and the locator may pursue the vein in depth to the vertical line of junction between the two planes. If the dip is in the direction of the divergence, there certainly is no extralateral right. The consideration, however, of this character of cases, together with those where a vein crosses one end-line and one side-line, will be deferred until we reach the subject of extralateral rights.

1 Flagstaff M. Co. v. Tarbet, 98 U. S. 463; Argentine M. Co. v. Terrible M. Co., 122 U. S. 478, 17 Sup. Ct. Rep. 1356; King v. Amy & Silversmith M. Co., 152 U. S. 222, 14 Sup. Ct. Rep. 510; Del Monte M. and M. Co. v. Last Chance M. Co., 171 U. S. 55, 18 Sup. Ct. Rep. 895; Eilers v. Boatman, 3 Utah, 159, 2 Pac. 66; Stevens v. Williams, 1 Morr. Min. Rep. 557, Fed. Cas. No. 13,414; Tombstone M. and M. Co. v. Wayup M. Co., 1 Ariz. 426, 25 Pac. 794; Watervale M. Co. v. Leach (Ariz.), 33 Pac. 418; Colorado Cent. R. R. v. Turck, 50 Fed. 888; Id. on rehearing, 54 Fed. 262; Tyler M. Co. v. Sweeney, 54 Fed. 284; New Dunderberg M. Co. v. Old, 79 Fed. 588, 606; Cosmopolitan M. Co. v. Foote, 101 Fed. 518.

2 Bunker Hill and Sullivan M. and C. Co. v. Empire State-Idaho M. and D. Co., 109 Fed. 538, 540.

98 U. S. 463.

122 U. S. 478, 7 Sup. Ct. Rep. 1356.

ARTICLE VII. THE MARKING OF THE LOCATION ON THE

SURFACE.

§ 371. Necessity for, and object | § 374. State statutes defining the character of marking.

of, marking.

§ 372. Time allowed for marking. § 373. What is sufficient marking

under the federal law.

§ 375. Perpetuation of monuments.

371. Necessity for, and object of, marking. — The Revised Statutes of the United States1 contain the mandatory provision, that the "location must be distinctly "marked on the ground so that its boundaries can "be readily traced." There is no escape from this requirement. While it is possible that state statutes or local district regulations may particularize as to the character of the marking, they cannot dispense with the necessity for compliance with the law of congress. While, as we shall hereafter point out, time is allowed within which to establish the boundaries, until this is done the location is not complete. The requirement is an imperative and indispensable condition precedent to a valid location,3 and is not to be "frittered away by "construction." After the discovery, it is the main act of original location. This was the rule under the Spanish and Mexican law. The object of the law in requiring the location to be marked on the ground is,

1 § 2324.

Belk v. Meagher, 104 U. S. 279; Strepey v. Stark, 7 Colo. 614, 5 Pac. 111; Garfield M. and M. Co. v. Hammer, 6 Mont. 53, 8 Pac. 153; Gilpin County M. Co. v. Drake, 8 Colo. 586, 589, 9 Pac. 787; Sweet v. Webber, 7 Colo. 443, 4 Pac. 752.

Ledoux v. Forester, 94 Fed. 600.

Gleeson v. Martin White M. Co., 13 Nev. 442, 456.

Donahue v. Meister, 88 Cal. 121, 131, 22 Am. St. Rep. 283, 25 Pac.

United States v. Castillero, 2 Black, 17; Gonu v.

Russell, 3 Mont. 358.

to fix the claim, to prevent floating or swinging, so that those who in good faith are looking for unoccupied ground in the vicinity of previous locations may be enabled to ascertain exactly what has been appropriated, in order to make their locations upon the residue.1 It also operates to determine the right of the claimant as between himself and the general government.2

372. Time allowed for marking.-Under the United States laws a claim may be marked at any time prior to the acquisition of an intervening right, regardless of the question as to whether the time within which such marking was made was reasonable or not. In the absence of state legislation or district regulation, it has been held, in California, that while a party in actual possession, proceeding with diligence to mark his boundaries, would be protected as against a stranger attempting to relocate, yet, strictly speaking, no time is allowed to the locator to complete his location by marking it on the surface. This view is also adopted by the supreme court of Oregon.5

But, as heretofore indicated, the circuit court of appeals for the ninth circuit, upon the same state of facts, presented in one of the Califorina cases,' declined

1 Gleeson v. Martin White M. Co., 13 Nev. 442, 462; Patterson v. Tarbell, 26 Or. 29, 37 Pac. 76, 78; Gird v. California Oil Co., 60 Fed. 531, 536; Willeford v. Bell (Cal.), 49 Pac. 6; Upton v. Larkin, 7 Mont. 449, 17 Pac. 728; Sanders v. Noble, 22 Mont. 110, 55 Pac. 1037; Walsh v. Erwin, 115 Fed. 531, 536; Book v. Justice M. Co., 58 Fed. 106, 114.

Pollard v. Shively, 5 Colo. 309, 317. See, also, Drummond v. Long, 9 Colo. 538, 13 Pac. 543.

Ante, § 330; Crown Point G. M. Co. v. Crismon, 39 Or. 364, 65 Pac. 87.

Newbill v. Thurston, 65 Cal. 419, 4 Pac. 409; Gregory v. Pershbaker, 73 Cal. 109, 14 Pac. 401; Pharis v. Muldoon, 75 Cal. 284, 17 Pac. 70. Patterson v. Tarbell, 26 Or. 29, 37 Pac. 76.

6 Ante, § 339.

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

в

7

8

to accept the doctrine of the California courts,1 but follows the rule announced by the supreme courts of Nevada and Idaho, and the manifest intent of the law as suggested by the supreme court of the United States * and by the courts of last resort in Colorado, South Dakota, Washington, and Montana. It is unnecessary to here repeat what we have said on this subject in a preceding section. For the reasons therein suggested, we are of the opinion that the rule, as announced in California and Oregon, is opposed to both the spirit of the law and the weight of authority.

? 373. What is sufficient marking under the federal law. As noted in the succeeding section, some of the states have enacted laws defining the character of monuments, or marks, to be placed on the ground. In the absence of such state legislation or local regulation, what constitutes a sufficient marking is a question to be determined by the jury, according to the circumstances in each particular case.10 It naturally depends upon the conformation of the ground. What might be sufficient in the case of a comparatively level or bare surface might not answer the requirements of the law in a moun

'Doe v. Waterloo M. Co., 70 Fed. 455, affirming 55 Fed. 11. Golden Fleece M. Co. v. Cable Cons. M. Co., 12 Nev. 312, 329; Gleeson v. Martin White M. Co., 13 Nev. 442.

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

Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. Rep. 560.

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

9

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

Ante, § 339.

10 Taylor v. Middleton, 67 Cal. 656, 8 Pac. 594; Anderson v. Black, 70 Cal. 226, 11 Pac. 700; Du Prat v. James, 65 Cal. 555, 4 Pac. 562; Farmington G. M. Co. v. Rhymney G. and C. Co., 20 Utah, 363, 77 Am. St. Rep. 913, 58 Pac. 832; Eaton v. Norris, 131 Cal. 561, 63 Pac. 856; Russel v. Chumasero, 4 Mont. 309, 1 Pac. 713, (decided before act of 1895), Purdum v. Laddin, 23 Mont. 387, 59 Pac. 153.

tainous region where the hills are precipitous or the surface covered with timber or undergrowth.1

66

"This requirement is not fulfilled by simply setting

a post at or near the place of discovery, and setting "stakes at each of the corners of the claim and at the "center of the end-lines, unless the topography of the "ground is such that a person accustomed to tracing "the lines of mining claims can, after reading the de"scription of the claim in the posted notice of location, "by a reasonable and bona fide effort to do so, find all "of the stakes, and thereby trace all of the lines. Where "the country is broken, and the view from one corner to "another is obstructed by intervening gulches and tim"ber and brush, it is necessary to blaze the trees along "the lines, or cut away the brush, or set more stakes, at "such distances that they may be seen from one to "another, or dig up the ground in a way to indicate the "lines, so that the boundaries may be readily traced." 2

In this view of the law, adjudicated cases are not often of controlling weight. They depend for their value as precedents upon the reasoning of the courts and the similarity as to facts existing in the case to which they are sought to be applied.

While the commissioner of the general land office has advised the erection of posts at the corners, and the erection of a signboard at the location point, the law may be satisfied by something less.3

We have collated the following examples, wherein the marking in the manner designated was held to satisfy the law :

In a district where the extent of a claim on each side of the center line is established by local rule, it has been said, that the object of the law is attained by marking this center line; that a man of common intelligence,

Book v. Justice M. Co., 58 Fed. 106, 113.

Ledoux v. Forester, 94 Fed. 600.

Gleeson v. Martin White M. Co., 13 Nev. 442, 462.