strument affecting real property,' it follows that general rules regarding descriptive calls in this class of instru ments apply generally to the construction of such certificates. But it has been held that where the position of the monuments as built upon a mining claim are described in such a way as to direction as to be confusing, the notice would nevertheless be sufficiently correct to be admitted in evidence.2

Mr. Washburn states the general rule to be, that courses and distances are generally regarded as more or less uncertain, and always give place, in questions of doubt or discrepancy, to monuments and boundaries that are referred to as indicating and identifying the land.3

This doctrine has been uniformly applied by the courts to certificates of location of mining claims.*

The general rule applicable to patents, deeds, and other instruments of conveyance, that where a monument is referred to in a descriptive call, and it has been obliterated or destroyed, parol evidence may be introduced to show where it was actually located in the field, does not, it seems, apply to certificates of location. As heretofore indicated, in order to invoke the rule that courses and distance yield to monuments, these monuments must be actually existing, and parol evidence is inadmissible to point out where they were originally

Ante, § 379.

Kinney v. Fleming (Ariz.), 58 Pac. 723; Providence G. M. Co. v. Burke (Ariz.), 57 Pac. 641; Bramlett v. Flick, 23 Mont. 95, 57 Pac. 869.

3 Washburn on Real Property, 3d ed., p. 348; 2 Devlin on Deeds, § 1029; Garrard v. Silver Peak Mines, 82 Fed. 578, 585; Belden v. Hebbard, 103 Fed. 532.

Pollard v. Shively, 5 Colo. 309, 313; Book v. Justice M. Co., 58 Fed. 106, 115; Hoffman v. Beecher, 12 Mont. 489, 31 Pac. 92; Cullacott v. Cash G. S. M. Co., 8 Colo. 179, 6 Pac. 211; McEvoy v. Hyman, 25 Fed. 596, 599; Smith v. Newell, 86 Fed. 56; Meydenbauer v. Stevens, 78 Fed. 787.

placed.1 The reason for this rule has been fully explained in a preceding section."

66

383. "Natural objects" and "permanent monu"ments." The words "natural objects" and "permanent monuments" are general terms, susceptible of different shades of meaning, depending largely upon their application. What might be regarded as a permanent monument for one purpose, might not be so considered with reference to a different purpose. The same rule applies to natural objects. There is no particular necessity for drawing a distinction between "natural objects," such as streams, rivers, ponds, highways, trees, and other things, ejusdem generis, and "perma"nent monuments," which may imply an element of artificial construction, it being the manifest intent of the law that any object of a fairly permanent character, whether natural or artificial, may, if sufficiently prominent, serve for the purpose of reference and identifi

66

cation.

As to whether a given notice or certificate of location contains such a description of the claim as located by reference to some natural object or permanent monument as will identify it, is a question of fact to be determined by the jury, and parol evidence is admissible for the purpose of proving that the thing named

'Pollard v. Shively, 5 Colo. 309, 318; Thallmann v. Thomas, 102 Fed. 925.

2 Ante, § 375.

Quinby v. Boyd, 8 Colo. 194, 6 Pac. 462.

Eilers v. Boatman, 111 U. S. 356, 4 Sup. Ct. Rep. 432; Bramlett v. Flick, 23 Mont. 95, 57 Pac. 869; Farmington G. M. Co. v. Rhymney G. M. Co., 20 Utah, 363, 77 Am. St. Rep. 913, 58 Pac. 832; Fissure M. Co. v. Old Susan M. Co., 22 Utah, 438, 63 Pac. 587; Gamer v. Glenn, 8 Mont. 371, 20 Pac. 654; Brady v. Husby, 21 Nev. 453, 33 Pac. 801; Flavin v. Mattingly, 8 Mont. 242, 19 Pac. 384; Metcalf v. Prescott, 10 Mont. 283, 25 Pac. 1037; Russell v. Chumasero, 4 Mont. 309, 1 Pac. 713.

in the certificate is, in fact, a natural object or permanent monument. In the absence of evidence for, or against, the sufficiency of the reference in the notice, it will be presumed to be sufficient to identify the claim.2

The following cases indicate the views of the courts as to what are natural objects or permanent monuments:

Prominent posts, or stakes, firmly planted in the ground; stones, if of proper size and properly marked ;1 monuments, prospect holes, and shafts," a depot and cliff of rocks, may be sufficient as permanent monuments within the meaning of the law. The boundary lines of well known claims have uniformly been held to be such.10 It has been held that if a notice refers to a

'Carter v. Bacigalupi, 83 Cal. 187, 23 Pac. 361; O'Donnell v. Glenn, 8 Mont. 248, 19 Pac. 302; Flavin v. Mattingly, 8 Mont. 242, 19 Pac. 384; Metcalf v. Prescott, 10 Mont. 283, 25 Pac. 1037; Dillon v. Bayliss, 11 Mont. 171, 27 Pac. 725; Kelly v. Taylor, 23 Cal. 14; Prince of Wales Lode, 2 Copp's L. O. 2, 3.

Brady v. Husby, 21 Nev. 453, 33 Pac. 801; Gleeson v. Martin White M. Co., 13 Nev. 442; Hammer v. Garfield M. and M. Co., 130 U. S. 291, 299, 9 Sup. Ct. Rep. 548; Bramlett v. Flick, 23 Mont. 95, 57 Pac. 869; Buffalo Zinc and Copper Co. v. Crump (Ark.), 69 S. W. 572, 576.

3 Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 112, 11 Fed. 666; Russell v. Chumasero, 4 Mont. 309, 1 Pac. 713; O'Donnell v. Glenn, 8 Mont. 248, 19 Pac. 302; Hanson v. Fletcher, 10 Utah, 266, 37 Pac. 480; Bramlett v. Flick, 23 Mont. 95, 57 Pac. 869; Credo M. and S. Co. v. Highland M. and M. Co., 95 Fed. 911; Duncan v. Fulton (Colo App.), 61 Pac. 244.

Russell v. Chumasero, 4 Mont. 309, 1 Pac. 713; Gamer v. Glenn, 8 Mont. 371, 20 Pac. 654.

5 Hansen v. Fletcher, 10 Utah, 266, 37 Pac. 480; Talmadge v. St. John, 129 Cal. 430, 62 Pac. 79; Credo M. Co. v. Highland Co., 95 Fed. 911.

Hansen v. Fletcher, 10 Utah, 266, 37 Pac. 480.

'Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96, 111, 11 Fed. 666; North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 312, 1 Fed. 522.

Farmington Co. v. Rhymney Co., 20 Utah, 363, 77 Am. St. Rep. 913, 58 Pac. 832.

Meydenbauer v. Stevens, 78 Fed. 787.

10 Upton v. Larkin, 7 Mont. 449, 17 Pac. 728; Russell v. Chumasero, 4 Mont. 309, 1 Pac. 713; Hammer v. Garfield M. and M. Co., 130 U. S. 291, 9 Sup. Ct. Rep. 548; Metcalf v. Prescott, 10 Mont. 283, 25 Pac. 1037; Book v. Justice M. Co., 58 Fed. 106; Southern Cross M. Co. v.

mining claim there is a presumption that such claim exists, and that it is well known.2 A tree is a fixed natural object, and when marked artificially or naturally there is less room to question its sufficiency than in the case of a shaft. A cañon, or any other prominent feature of the landscape, is a natural object. The natural objects or permanent monuments referred to are not required to be on the ground located, although they may be."

384. Effect of failure to comply with the law as to contents of certificate.-It follows from what we have heretofore said that any notice or certificate of location which is used as the basis of the record which fails to reasonably comply with the requirements of the federal law as to the contents of such record is ineffectual and void. As to the omission of any of the other elements

Europa M. Co., 15 Nev. 383; Gamer v. Glenn, 8 Mont. 451, 20 Pac. 658; Live Yankee Co. v. Oregon Co., 7 Cal. 41; Duncan v. Fulton (Colo. App.), 61 Pac. 244; Riste v. Morton, 20 Mont. 139, 49 Pac. 656; Smith v. Newell, 86 Fed. 56; Wilson v. Triumph Cons. M. Co., 19 Utah, 66, 75 Am. St. Rep. 718, 56 Pac. 300; Kinney v. Fleming (Ariz.), 56 Pac. 723; Morrison v. Regan (Idaho), 67 Pac. 955; McCann v. McMillan, 129 Cal. 350, 62 Pac. 33. Contra: Baxter Mt. G. M. Co. v. Patterson, 3 N. Mex. 179, 3 Pac. 741. See Gilpin etc. Co. v. Drake, 8 Colo. 586, 9 Pac. 787, (overruled by Duncan v. Fulton (Colo. App.), 61 Pac. 244). And see Brown v. Levan (Idaho), 46 Pac. 661, (explained in Morrison v. Regan (Idaho), 67 Pac. 955).

1 Kinney v. Fleming (Ariz.), 56 Pac. 723.

Bramlett v. Flick, 23 Mont. 95, 57 Pac. 869; Credo M. Co. v. Highland M. and M. Co., 95 Fed. 911.

'Quinby v. Boyd, 8 Colo. 194, 6 Pac. 462.

Flavin v. Mattingly, 8 Mont. 242, 19 Pac. 284; Duncan v. Fulton (Colo. App.), 61 Pac. 244; McKinley Creek M. Co. v. Alaska United M. Co., 183 U. S. 563, 22 Sup. Ct. Rep. 84.

North Noonday M. Co. v. Orient M. Co., 6 Saw. 299, 1 Fed. 522; Talmadge v. St. John, 129 Cal. 430, 62 Pac. 79; Credo M. Co. v. Highland M. and M. Co., 95 Fed. 911.

Deeney v. Mineral Creek M. Co. (N. Mex.), 67 Pac. 724; Purdum v. Laddin, 23 Mont. 387, 59 Pac. 153. See Brown v. Levan (Idaho), 46 Pac. 61, and Clearwater Ry. Co. v. San Garde (Idaho), 61 Pac. 137, as explained in Morrison v. Regan (Idaho), 67 Pac. 955.

Lindley on M.-45

required by state legislation, in some of the states the law itself prescribes the penalty by providing that the failure to insert any of the requirements renders the location void. This is the rule in Colorado, Nevada, North and South Dakota. The laws of the other states and territories are silent upon the subject.

1

If the California-Arizona rule applicable to local regulations and customs may be properly invoked in the case of statutory enactments,—that is, that a forfeiture is not worked unless the custom or local rule in terms so declares,2-the provisions of the statutes in the latter class of states, exacting requirements in excess of those made essential by the federal law, are merely directory, and their omission is accompanied with no serious consequences. We do not see why such rule should not be applicable alike to local and statutory regulations. As to the other states, where legislation of the character noted is found, it may be said that forfeitures are not favored by the courts, and where a location is made in good faith and all the essential requirements are complied with, instances are not frequent where the miner is deprived of substantial rights for failure to strictly comply with the letter of the law.

385. Verification of certificates.-Two of the states, Idaho and Montana, require the certificate of location, or declaratory statement, to be verified by the oath of a locator. In a preceding section we have suggested that these provisions may be repugnant to the federal law, as imposing unnecessary and onerous burdens upon 1Ante, § 274.

This rule does not obtain in Montana and Nevada. Ante, § 274; Purdum v. Laddin, 23 Mont. 387, 59 Pac. 153; Sissons v. Sommers, 24 Nev. 379, 77 Am. St. Rep. 815, 55 Pac. 829.

The term "locator" has been construed to include the agent who locates the claim. Dunlap v. Pattison (Idaho), 42 Pac. 504.