obliteration of the marks or removal of the stakes without the fault of the locator.1 Where the evidence shows that the boundaries were originally marked, the fact that the stakes then set could not in later years be found raises no presumption against the validity of the original marking.2 The supreme court of Colorado suggests a sensible exception to this rule: Where there is a variation between the calls of the recorded location certificate and the monuments established on the ground, the locator, in order to avail himself of the rule of law which gives controlling effect to the monuments as they were placed on the ground, must keep up his markings. The reason given in support of this is, that as the erroneous record fails to give constructive notice, if the monuments are swept away, no search, no exercise of prudence, diligence, or intelligence, would advise the subsequent locator of the extent and limits of the prior appropriation, and this is one of the principal objects of marking. The rule that monuments shall control courses and distances is recognized only in cases where the monuments are clearly ascertained. If there be doubt as to monuments, as well as to the course and distance, there can be no reason for saying that monuments shall prevail, rather than the course.* 1 Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 110, 11 Fed. 666; Book v. Justice M. Co., 58 Fed. 106, 114; McEvoy v. Hyman, 25 Fed. 596, 598; Smith v. Newell, 86 Fed. 56; Yreka M. Co. v. Knight, 133 Cal. 544, 65 Pac. 1091; Walsh v. Erwin, 115 Fed. 531, 537. Temescal Oil and D. Co. v. Salcido, 137 Cal. 211, 69 Pac. 1010. • Thallmann v. Thomas, 102 Fed. 925. ARTICLE VIII. THE LOCATION CERTIFICATE AND ITS CONTENTS. 379. The location certificate Its purpose. and monuments on the ground. § 380. State legislation as to con- §383. "Natural objects" and "per tents of location certifi- 381. Rules of construction ap plied. 382. Variation between descrip tive calls in certificate "manent monuments.'' 8384. Effect of failure to comply with the law as to contents of certificate. § 385. Verification of certificates. 8 379. The location certificate-Its purpose.-In speaking of the "location certificate," we have no reference to the preliminary posted notice of discovery and intention to locate, discussed in a preceding article,1 except in so far as such posted notice forms the basis of the recorded notice, as it does in Oregon and Utah and the territories of Arizona and New Mexico.2 In this latter class of cases, the posted notice performs the function of a certificate of location, as it is termed in most states. This certificate is also equivalent in its legal effect to the "declaratory statement" provided for by the laws of Montana.3 By the term "certificate of location," we mean the instrument prepared by the locator after the completion of the development work and the marking of his location, which certificate is required by the state laws or local rules to be recorded. This instrument when recorded is a statutory writing affecting realty, being, in the states or localities where it is required, the basis of the miner's "right of exclusive possession" of his mining location granted by the laws of congress. It is the first muniment of his paper title, upon the record of 1 Ante, §§ 350-356. . Ante, § 353. Post, § 380. Pollard v. Shively, 5 Colo. 309, 312. which proceedings for patent are based, and as recorded is intended to impart constructive notice to all subsequent locators of the existence of the claim, its precise locality and extent,' as the marking of the location on the ground is intended to impart actual notice of these facts. The preliminary posted notice performs a temporary function; the recorded certificate a more permanent one.2 This recorded certificate, notice, or declaratory statement, by whatever name it may be called, is the genesis of the locator's paper title. The congressional laws do not in terms require any such certificate, but they provide that where a record of the location is made such record "shall contain the name " or names of the locators, the date of the location, and "such a description of the claim or claims located, by "reference to some natural object or permanent monu"" ment, as will identify the claim." In the absence of a state law or local rule requiring a record to be made, congress has not undertaken to prescribe the nature of the notices which a miner may be compelled by such laws or rules to post, or which he may see fit to post on his own motion. It is only when such notice, or its equivalent, is required to be recorded that the provisions of the federal law become mandatory.* Where state laws or local rules require a record to be made, the recorded instrument must contain at least the elements provided for by the Revised Statutes, and if 'Magruder v. Oregon and Cal. R. R. Co., 28 L. D. 174. Sanders v. Noble, 22 Mont. 110, 55 Pac. 1037, 1046. Rev. Stats., § 2324. Gleeson v. Martin White M. Co., 13 Nev. 443, 464; Golden Fleece M. Co. v. Cable Cons. M. Co., 12 Nev. 312; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 112, 11 Fed. 666; Poujade v. Ryan, 21 Nev. 449, 33 Pac. 659; Doe v. Waterloo C. M. Co., 55 Fed. 11; Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. Rep. 560. 'Brown v. Levan (Idaho), 46 Pac. 661, (but see Morrison v. Regan (Idaho), 67 Pac. 955); Drummond v. Long, 9 Colo, 538, 13 Pac. 543; Faxon v. Barnard, 4 Fed. 702; Gilpin County M. Co. v. Drake, 8 Colo. 586, such state laws or local rules prescribe the contents of such recorded notice, it must comply with this additional requirement.1 A few of the states provide for a record, but do not prescribe the contents of the notice or certificate to be recorded. In such cases compliance with the federal law is all that is necessary. Most of the states and territories, however, within the purview of this treatise have provided by law for the contents of such instruments. Before proceeding with a discussion of the nature of these certificates it is advisable to present an outline of the state legislation upon the subject. 380. State legislation as to contents of location certificate. Colorado. The location certificate must contain: (1) name of the lode; (2) name of locator; (3) date of location; (4) number of feet in length claimed on each side of the center of discovery shaft; (5) the general course of the lode; 2 (6) a description of the claim sufficient to identify it.3 Idaho. The laws of Idaho provide for two notices: one preliminary, to be posted only; the other a final one, to be both posted and recorded. The final notice must contain: (1) name of locator; (2) name of the claim; 9 Pac. 787; Darger v. Le Sieur, 8 Utah, 160, 30 Pac. 363, S. C. on rehearing, 9 Utah, 192, 33 Pac. 701; Dillon v. Bayliss, 11 Mont, 171, 27 Pac. 725; Russell v. Chumasero, 4 Mont. 309, 1 Pac. 713, (this case commented on in Purdum v. Laddin, 23 Mont. 387, 59 Pac. 153); Garfield M. and M. Co. v. Hammer, 6 Mont. 53, 8 Pac. 153; Hammer v.. Garfield M. and M. Co., 130 U. S. 291, 9 Sup. Ct. Rep. 548; Poujade v. Ryan, 21 Nev. 449, 33 Pac. 659; Gleeson v. Martin White M. Co., 13 Nev. 443; Smith v. Newell, 86 Fed. 56; Meydenbauer v. Stevens, 78 Fed. 787; Deeney v. Mineral Creek M. Co. (N. Mex.), 67 Pac. 724. 'Purdum v. Laddin, 23 Mont. 387, 55 Pac. 153. Mills' Annot. Stats., § 3150. 3 Id., § 3151. See Duncan v. Fulton (Colo. App.), 61 Pac. 244. Ante, § 354. (3) date of discovery; (4) direction and distance claimed along the ledge from the discovery; (5) distance claimed on each side of the middle of the ledge; (6) distance and direction from discovery monument to some natural object by which the claim may be identified; (7) name of mining district, county, and state.1 Arizona.-The notice or certificate of location must contain: (1) name of the claim; (2) name of locator; (3) date of location; (4) length and width of the claim in feet, and number of feet claimed on each side of point of discovery to each end of the claim; (5) general course of the claim; (6) the locality of the claim with reference to some natural object or permanent monument as will identify the claim.2 Montana.-The instrument which is to be recorded is called the "declaratory statement." It must contain: (1) name of lode or claim; (2) name of locator; (3) date of location, and such a description with reference to natural objects or permanent monuments as will identify the claim; (4) the number of linear feet claimed along the course of the vein each way from point of discovery, with the width on each side of the center of the vein, and the general course of the vein as near as may be; (5) dimensions and location of discovery shaft, cut, or tunnel, or its equivalent, sunk upon the lode. The declaratory statement must be verified by the oath of a locator, or one of the locators, and, in case of a corporation, by a duly authorized officer. 1 Laws of 1895, p. 25, § 2, as amended-Laws of 1899, p. 633; Civil Code (1901), § 2557. See Morrison v. Regan (Idaho), 67 Pac. 955, explaining Clearwater Shortline Ry. v. San Garde (Idaho), 61 Pac. 137; Brown v. Levan (Idaho), 46 Pac. 661. Rev. Stats. (1901), § 3232. See Wiltsee v. King of Arizona M. and M. Co. (Ariz.), 60 Pac. 896. *Rev. Code of 1895, § 3612, as amended-Laws of 1901, p. 141, § 2. |