stated therein,1 provided they are sufficiently stated.2 A record of a certificate of a location which recites the citizenship of locators, the fact of discovery, and the fact that the location had been marked upon the ground so that the boundaries could be readily traced, is not evidence of any of these facts in any of the states or territories, for the simple reason that no such facts are required to be stated in any of the statutory notices.* Where the right of possession is founded upon an alleged compliance with the law relating to a valid location, all the necessary steps, aside from the making and recording of the location certificate, must, when contested, be established by proof outside of such certificate. The record of the certificate is proof itself of its own performance as one of such steps, and in regular order, generally speaking, the last step in perfecting the location." 6 While many of the states require the date of the discovery to be stated in the recorded certificate, this would not be evidence of the fact of discovery. A discovery once proved, such a record would, prima facie, fix the date. Discovery is the most important of all the acts required in the proceedings culminating in a perfected location. It is the foundation of the right without which all other acts are idle and superfluous. With the exception of two states (Idaho and Montana), the certificate is executed with no solemnity. It is 12 Jones on Evidence, § 521. 2 Strepey v. Stark, 7 Colo. 614, 5 Pac. 111; Jantzen v. Arizona C. Co. (Ariz.), 20 Pac. 93. 3 Flick v. Gold Hill & L. M. Co., 8 Mont. 298, 20 Pac. 807. Magruder v. Oregon and California R. R. Co., 28 L. D. 174. Strepey v. Stark, 7 Colo. 614, 619, 5 Pac. 111; Magruder v. Oregon and California R. R. Co., 28 L. D. 174; Farmington G. M. Co. v. Rhymney G. and C. Co., 20 Utah, 363, 77 Am. St. Rep. 913, 58 Pac. 832, 833. Smith v. Newell, 86 Fed. 56; Magruder v. Oregon and California R. R. Co., 28 L. D. 174; McQuiddy v. State of California, 29 L. D. 181; Elda M. Co., 29 L. D. 279; Harkrader v. Goldstein, 31 L. D. 87. neither acknowledged nor sworn to. It is a mere ex parte declaration on his own behalf of the party most interested.1 The same may be said of marking the boundaries. It is quite true that when a certificate contains a description of the claim with reference to a natural object or permanent monument, the recorded notice to this extent may be prima facie evidence of its own sufficiency, for the reason that the statute requires such description to be inserted in the certificate.2 The real purpose of the record is to operate as constructive notice of the fact of an asserted claim and its extent. When the locator's right is challenged, he should be compelled to establish by proof outside of the certificate all the essential facts, without the existence of which the certificate possesses no potential validity. These facts once proved, the recorded certificate may be considered as prima facie evidence of such other facts as are required to be stated therein. ARTICLE X. CHANGE OF BOUNDARIES AND AMENDED OR ADDITIONAL LOCATION CERTIFICATES. § 396. Circumstances justifying change of boundaries. rights, independent of state legislation. § 397. Privilege of changing boun- § 398. Objects and functions of daries exists in the ab- amended certificates. 1 Judge Phillips, in his charge to the jury in Cheesman v. Shreeve, 40 Fed. 787, said that certificates of location are presumptive evidence of discovery. But in this case, many years elapsed between the original location and the litigation, and the fact of discovery was supported by the testimony of the parties. Under these circumstances the judge held that every reasonable presumption should be indulged in favor of the integrity of the location. The reasoning, while persuasive so far as this case is concerned, does not militate against the views announced in the text. See Kinney v. Fleming (Ariz.), 56 Pac. 723; Providence G. M. Co. v. Burke (Ariz.), 57 Pac. 641. Meydenbauer v. Stevens, 78 Fed. 787. 2396. Circumstances justifying change of boundaries. The difficulties surrounding the locator in determining the precise position of his discovered vein in the earth, the probable course of its apex, and in many instances its width, frequently render it impossible for him to so mark his boundaries within the time allowed by law for that purpose as to entitle him to the full measure of property rights which the law permits him to acquire as the reward for his discovery. It frequently happens that the limited extent of surface exploration possible within the periods allowed him does not develop the true conditions. His markings, therefore, are frequently based on erroneous suppositions and wrong theories. While the government is not concerned with the particular individual who is the recipient of its bounty, and it makes but little difference to it who discovers and develops its mineral resources, its policy is to encourage the search for, and the opening of, mines, and this policy is best subserved by permitting the discoverer to rectify and readjust his lines whenever he may do so without impairing the intervening rights of others. While the locator marks his boundaries in every instance at his peril, there is no reason why he should be compelled to abide by first impressions, if no one is injured by a subsequent rectification of such boundaries. It also frequently happens, that at the time a discovery is made, the existence of contiguous prior locations prevents him from giving to his surface that symmetrical form which the law contemplates; or if he makes it in the ideal form, a surface conflict arises, rendering the extent of his rights vague and uncertain. These prior locations are frequently abandoned, and the ground embraced therein becomes subject to reappropriation. As heretofore suggested, when such abandonment or forfeiture becomes effectual, the conflict area does not inure to the advantage of the junior locator.1 But the courts uphold the right of the junior under such circumstances to re-form his lines and amend his location so as to include the overlapping surface." There is no statute, law, rule, or regulation which prevents a locator of a mining claim from relocating his own claim, and including additional vacant ground unclaimed by other parties, or even giving to the new location a different name.3 Where an application for patent is made, and a survey for that purpose is ordered, the deputy mineral surveyor is controlled by the record of the certificate of location, where one is required, and the markings on the ground, the latter controlling where there is a variation between the descriptive calls of the record and the monuments." While, for the purpose of obtaining parallelism, or casting off excess," the lines may be drawn in, so that, as finally surveyed, the boundaries are approximately within the limits of the surface area as originally claimed, yet no authority is given to extend the surveyed boundaries so as to include area which at the time of the survey is not within the ground actually claimed, or found to be, at least, approximately within the lines connecting the monuments as marked, prior to the order for survey. It is therefore frequently found necessary to change boundaries before applying for an order for survey; 1 Ante, § 363. • Id. Shoshone M. Co. v. Rutter, 87 Fed. 801, 806. Lincoln Placer, 7 L. D. 81; Rose Lode Claims, 22 L. D. 83; Commissioner's Letter, 1 Copp's L. O. 12. Ante, § 382. Doe v. Sanger, 83 Cal. 203, 214, 23 Pac. 365; Doe v. Waterloo M. Co., 54 Fed. 935, 940; Tyler v. Sweeney, Id. 284; Last Chance M. Co. v. Tyler, 61 Fed. 557; Philadelphia M. Claim v. Pride of the West, 3 Copp's L. O. 82. 7 Credo M. and M. Co. v. Highland M. and M. Co., 95 Fed. 911. and when so changed, an amended location is made, and an amended certificate is prepared and recorded, which, if free from conflicts with those whose rights have supervened since the perfection of the original location, is just as valid as if made in the original instance.1 Those locating subsequently to the perfection of the amended location are not injured, and have no right to complain.2 2397. Privilege of changing boundaries exists, in the absence of intervening rights, independent of state legislation. In some of the states and territories, amended locations and certificates are the subject of statutory regulation. This is the case in Colorado,3 Idaho, Arizona, Montana, Nevada, New Mexico,s North Dakota, South Dakota,10 Washington,11 and Wyoming.12 Cal. Civ. Cock $1426 h. The provisions in all these states, with the exception of those in Arizona, are on parallel lines with those of Colorado, which are as follows: "If, at any time, the locator of any mining claim "heretofore or hereafter located, or his assigns, shall "apprehend that his original certificate was erroneous, "defective, or that the requirements of the law had not "been complied with before filing, or shall be desirous "of changing his surface boundaries, or taking in any Tipton G. M. Co., 29 L. D. 718. Gleeson v. Martin White M. Co., 13 Nev. 442. Mills' Annot. Stats., § 3160. Laws of 1895, p. 27, § 5; Civil Code (1901), § 2566. Rev. Stats. (1901), § 3238. Laws of 1901, p. 56, §§ 1, 2. Comp. Laws (1900), § 213. Comp. Laws (1897), § 2301. Rev. Code of 1895, § 1437; Id. 1899, § 1437. 10 Comp. Laws of Dak. 1887, § 2008. Adopted by South Dak.-Laws of 1890, ch. cv; Grantham's Annot. Stats. S. D. (1899), § 2667. 11 Laws of 1899, p. 70, § 5. 12 Rev. Stats. (1899), § 2538. |