acquainted with the customs of the country, seeing the discovery monument, the preliminary posted notice, and the stakes marking this center line, would be informed by the rules of the district and the laws of the land that the boundaries of the claim were formed by lines parallel to the center line, at the distance prescribed by local rules, and by end-lines at right angles thereto. With this knowledge, he could easily trace the boundaries and ascertain exactly where he could locate with safety.1

Judge Sawyer held that the sinking of a discovery shaft, posting a notice thereon, and placing a monument and post at one extremity of the linear measurement, was a compliance with the law.2

We think these cases stretch the law to the utmost limit of liberality. It is almost a return to the primitive rules, prevalent when the lode was the principal thing located and the surface a mere incident, when the locator could hold but one vein, and his rights as to that vein were not defined by surface boundaries.3

Under the existing law, a grant of the surface is sought, and the rights on the discovered lode, as well as all others whose apices may be found therein, are defined exclusively by the form of the location and the direction of the boundary lines. What the existing law evidently contemplates is physical evidence on the ground of marks which will enable one to trace the lines on the surface.

Posted or recorded notices may be an aid in determining the situs of monuments, but they cannot be substituted for all markings. They therefore constitute a

1 Gleeson v. Martin White M. Co., 13 Nev. 442, 463. See, also, Mt. Diablo M. and M. Co. v. Callison, 5 Saw. 439, 449, Fed. Cas. No. 9886. North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 311, 1 Fed. 522. Ante, § 58.

4 Willeford v. Bell (Cal.), 49 Pac. 6.

McKinley Creek M. Co. v. Alaska United M. Co., 183 U. S. 563, 570, 22 Sup. Ct. Rep. 84.

part of the marking, as does every other object placed on the ground for that purpose, if in fact it does aid such result.1

In many cases, stakes driven into the ground are the most certain means of identification.2

3

Fencing is not necessary; in fact, where in California the early occupants inclosed their ground with substantial inclosures, it was an open invitation for prospectors to enter, as it indicated a holding for agricultural purposes.

Stakes firmly planted in the ground, marked as corner stakes, with stone mounds placed around them, which stakes and mounds were found by the court to be "prom"inent and permanent monuments," were held to justify the legal conclusion that the location was distinctly marked on the ground so that the boundaries could be readily traced.*

Stakes and stone monuments at each corner of the claim, and at the center of each of the end-lines, are, according to the supreme court of Nevada, as much as has ever been required under the most stringent construction of the law; and yet there are states which require eight posts and monuments, the additional two being placed at the center of the side-lines.

5

Eaton v. Norris, 131 Cal. 561, 63 Pac. 856; Meydenbauer v. Stevens, 78 Fed. 787, 792; Temescal Oil and D. Co. v. Salcido, 137 Cal. 211, 69 Pac. 1010; Walsh v. Erwin, 115 Fed. 531, 536.

Hammer v. Garfield M. and M. Co., 130 U. S. 291, 299, 9 Sup. Ct. Rep. 548; Eaton v. Norris, 131 Cal. 561, 63 Pac. 856.

Rogers v. Cooney, 7 Nev. 215, 219.

Du Prat v. James, 65 Cal. 555, 4 Pac. 562; Gird v. California Oil Co., 60 Fed. 531, 537; Book v. Justice M. Co., 58 Fed. 106; Credo M. and S. Co. v. Highland M. and M. Co., 95 Fed. 864.

5 Southern Cross G. and S. M. Co. v. Europa M. Co., 15 Nev. 383. See, also, Souter v. Maguire, 78 Cal. 543, 21 Pac. 183; Book v. Justice M. Co., 58 Fed. 106; Howeth v. Sullenger, 113 Cal. 547, 45 Pac. 841; Meydenbauer v. Stevens, 78 Fed. 787; Smith v. Newell, 86 Fed. 56; Credo M. and S. Co. v. Highland M. and M. Co., 95 Fed. 911; Sherlock v. Leighton, 9 Wyo. 297, 63 Pac. 580.

A location marked by a discovery monument, on which was placed the notice of location, and by a stake at each of three of the corners of the claim, and a monument at the center of each end-line, leaving one corner unmarked, was held to be sufficient to comply with the law.1

The omission to mark one end of a claim where the ground was so inaccessible that the surveyor when surveying for patent was compelled to determine the position of the end-line by triangulation, the remainder of the claim being marked by stakes and mounds at the accessible corners, the center of one end-line, a discovery monument and blazed trees on the center line, was held not to be an evasion of the law. stances, the marking was sufficient. trees, one at each end of the claim, in the center of the claim without any attempt at marking, has been held to be wholly insufficient. These notices would serve the purpose for which they were originally intended, as notices of intention to locate, but would only preserve the right for a reasonable time to enable the locator to mark his boundaries.

Under the circumPosting notices on or posting a notice

The supreme court of the United States, in the case of McKinley Creek Mining Co. v. Alaska United Mining Co.,5 has sustained the validity of a placer location where no attempt was made to actually mark the boundaries. All that was done was to post notices on a snag, or stump, in a creek, claiming a certain number of feet running with the creek and three hundred feet on each side of the center of the creek, and referring to

Warnock v. De Witt, 11 Utah, 324, 40 Pac. 205; Walsh v. Erwin, 115 Fed. 531.

Eilers v. Boatman, 3 Utah, 159, 2 Pac. 66; affirmed, 111 U. S. 356, 4 Sup. Ct. Rep. 432.

Holland v. Mt. Auburn G. Q. M. Co., 53 Cal. 149, 151.

Gelcich v. Moriarity, 53 Cal. 217; Morenhaut v. Wilson, 52 Cal. 263, 269; Doe v. Waterloo M. Co., 70 Fed. 455.

183 U. S. 563, 22 Sup. Ct. Rep. 84.

the claim as the east extension of a certain named claim and the west extension of another. Unless some facts or circumstances were represented to the court which cannot be gleaned from the official report of the case, such a location would seem to fall short of the requirement that the claim shall be "distinctly marked on the ground, so that its boundaries may be readily "traced."'1

As intimated in a previous section, the marks, stakes, or monuments should be within the statutory limit as to area; 2 yet this rule is to be understood in the light of the doctrine that excessive locations are not wholly void, but are invalid only as to the excess.3

In so far as the ground taken is vacant, each location, if properly made in other respects, will be valid.*

The right to place marks upon claims previously appropriated has been heretofore discussed."

A failure to comply with the law as to the marking within a reasonable time after discovery, where there is no local rule or state statute fixing the time, or within the time fixed by statute or local rule, renders the ground subject to relocation; but if the ground is marked before conflicting rights accrue, the claim will be valid." In case of a relocation, the right of the relocator is lost if he fails to mark his boundaries prior to the resumption

1 Rev. Stats., §§ 2324, 2329; post, § 454.

'Leggatt v. Stewart, 5 Mont. 107, 109, 2 Pac. 320; Hauswirth v. Butcher, 4 Mont. 299, 1 Pac. 714.

Ante, § 332; Ledoux v. Forester, 94 Fed. 600.

Doe v. Tyler, 73 Cal. 21, 14 Pac. 375; West Granite Mt. M. Co. v. Granite Mt. M. Co., 7 Mont. 356, 17 Pac. 547; Perigo v. Erwin, 85 Fed. 904; Crown Point M. Co. v. Buck, 97 Fed. 462.

Ante, §§ 363, 363a.

White v. Lee, 78 Cal. 593, 12 Am. St. Rep. 115, 21 Pac. 363; Funk v. Sterrett, 59 Cal. 613.

"Ante, §§ 330, 372; Crown Point G. M. Co. v. Crismon, 39 Or. 364, 65 Pac. 87.

of work by the former owner,1 always assuming that the failure to perfect the location is not caused by the fraud or tortious acts of the relocator.2 Failure to mark the boundaries within the time allowed by law or prescribed by state or local regulation cannot be taken advantage of by a subsequent locator, if the prior locator perfects his location in advance of any intervening rights. A location when perfected relates back to the discovery.1 Boundaries once established cannot be changed to the detriment of intervening locators. In considering the question as to the sufficiency of marking, the court is not confined to the monuments placed at the corners of the claim at the inception of the location for the purpose of marking it, but may consider also all other objects placed on the ground, either then or subsequently, prior to the subsequent location, either for the purpose of serving as monuments or otherwise."

8374. State statutes defining character of marking. —There is no legislation upon the subject of marking the location in California. The following statutory requirements are found in the other precious-metal-bearing states and territories:

Colorado.-Before filing the certificate of location for record (within three months after discovery), the sur

1Gonu v. Russell, 3 Mont. 358, 363; Pharis v. Muldoon, 75 Cal. 284, 17 Pac. 70; Holland v. Mt. Auburn G. Q. M. Co., 53 Cal. 149. But see, post, § 408.

2 Erhardt v. Boaro, 113 U. S. 527; Miller v. Taylor, 6 Colo. 41.

3 North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 314, 1 Fed. 522; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 115, 11 Fed. 666. See, ante, § 330.

Doe v. Waterloo M. Co., 70 Fed. 455; Gregory v. Pershbaker, 73 Cal. 109, 14 Pac. 401.

O'Reilly v. Campbell, 116 U. S. 418, 6 Sup. Ct. Rep. 421; Golden Fleece M. Co. v. Cable Cons. M. Co., 12 Nev. 312; Cræsus M. and S. Co. v. Colorado L. and M. Co., 19 Fed. 78.

Eaton v. Norris, 131 Cal. 561, 63 Pac. 856.