part of an overlapping claim which has been aban"doned, or in case the original certificate was made prior "to the passage of this law, and he shall be desirous of "securing the benefits of this act, such locator, or his "assigns, may file an additional certificate, subject to "the provisions of this act; provided, that such reloca"tion does not interfere with existing rights of others "at the time of such relocation, and no such relocation, 66 or other record thereof, shall preclude the claimant, 66 or claimants, from proving any such title, or titles, as "he, or they, may have held under previous location."

In Arizona the section on this subject is as follows:"Location notices may be amended at any time and "the monuments changed to correspond to the amended "location; provided, that no change shall be made that "will interfere with the rights of others."

But, in the nature of things, this right exists throughout the mining regions, independently of statutory regulations. The supreme court of California, a state which has no legislation on the subject, has held that if locators have any apprehension as to the sufficiency of their original location, there is no reason why they should not be permitted to modify or amend it.1

Of course, the alteration of boundaries, by taking in new territory and filing amended certificates where the antecedent one is absolutely void, cannot be permitted to the prejudice of intervening rights. But with this qualification, the right to change boundaries and rectify lines exists throughout the mining regions.3

2

In dealing with this subject in the future, we shall

1 Thompson v. Spray, 72 Cal. 528, 529, 14 Pac. 182.

Seymour v. Fisher, 16 Colo. 188, 27 Pac. 240; Fisher v. Seymour, 23 Colo. 542, 49 Pac. 30; Omar v. Soper, 11 Colo. 380, 7 Am. St. Rep. 246, 18 Pac. 443; Hall v. Arnott, 80 Cal. 348, 22 Pac. 200; Tombstone Townsite Cases (Ariz.), 15 Pac. 26; Wight v. Tabor, 2 L. D. 738.

3 Frisholm v. Fitzgerald, 25 Colo. 290, 53 Pac. 1109; Duncan v. Fulton (Colo. App.), 61 Pac. 244; Morrison v. Regan (Idaho), 67 Pac. 956; Sanders v. Noble, 22 Mont. 110, 55 Pac. 1037.

C.C-. 1426h added 193

assume the correctness of this theory, and, therefore, that the decisions of the courts in states where laws of this character exist, so far as underlying principles are discussed therein, may be resorted to as precedents in states where legislation on the subject is wanting. We think the circumstances set forth in the preceding section justify this assumption.

398. Objects and functions of amended certificates. -Where a change of boundaries is sought, the acts necessary to accomplish the desired result are specified by statute in the states enumerated in the preceding section. Where there is no statute, in re-marking the boundaries and preparing and recording the certificate the same formalities should be observed as in the case of an original location.

In speaking of the objects and functions of additional or amended certificates of location, the supreme court of Colorado thus states its views:

"The evident intent of the statute is, that the addi "tional certificate shall operate to cure defects in the "original, and thereby to put the locator, where no "other rights have intervened, in the same position that "he would have occupied if no such defect had oc"curred. Such intent is in accord with the principle "of all curative provisions of law.”1

And in a later case the same court says:

"It is to the end that the prospector may cure any "defects in his location and conserve and protect the "results of his industry that the authority is given." 2

Such a certificate may be used as evidence, although the original may be incomplete or imperfect, upon the theory that the amended certificate relates back to a right of location accruing by virtue of the prerequisite

Strepey v. Stark, 7 Colo. 614, 620, 5 Pac. 111. *Duncan v. Fulton (Colo. App.), 61 Pac. 244.

discovery and an attempted compliance with the law.1 When the original certificate of location may be deemed void, an additional one may be filed to correct its defects, and both may be put in evidence.2

A distinction is drawn between cases where the original certificate is absolutely void, or where the amended certificate seeks to appropriate new and additional ground, and one where the original is simply defective. If in making the amended location it included land not in the original location, and interfered with existing rights as to such land, the amended location would not relate back to the date of the original location, so far as the recently included land is concerned." Where the object is simply to cure imperfections and obvious defects, and there is no attempt to include new ground, the amended certificate will relate back to the original in spite of intervening locations.*

"Every one who is at all familiar with mining loca"tions knows that in practice the first record must "usually, if not always, be imperfect. Recognizing "these difficulties, it has never been the policy of the "law to avoid a location for defects in the record, but " rather to give the locator an opportunity to correct his "record, whenever defects may be found in it. . . . "This is the function and proper office of amendments: "To put the original in as perfect condition as if it had "been complete in the first instance."5

'McGinnis v. Egbert, 8 Colo. 41, 45, 5 Pac. 652; Moyle v. Bullene, 7 Colo. App. 308, 44 Pac. 69; Becker v. Pugh, 9 Colo. 589, 13 Pac. 906; Duncan v. Fulton (Colo. App.), 61 Pac. 244; Strepey v. Stark, 7 Colo. 614, 5 Pac. 111. Dissenting opinion, Frisholm v. Fitzgerald, 25 Colo. 290, 53 Pac. 1109.

Duncan v. Fulton (Colo. App.), 61 Pac. 244.

3 Morrison v. Regan (Idaho), 67 Pac. 955, 961.

4

McEvoy v. Hyman, 25 Fed. 596; Tombstone Townsite Cases (Ariz.), 15 Pac. 26; Hall v. Arnott, 80 Cal. 348, 22 Pac. 200; Frisholm v. Fitzgerald, 25 Colo. 290, 53 Pac. 1109, (dissenting opinion); Duncan v. Fulton (Colo. App.), 61 Pac. 244; Morrison v. Regan (Idaho), 67 Pac. 955.

McEvoy v. Hyman, 25 Fed. 596, 600. See, also, Craig v. Thompson, 10 Colo. 517, 16 Pac. 24.

In other words, a reasonable latitude of amendment is allowed, of which the locator cannot be deprived because some one has attempted to relocate his ground.

There is a distinction between amending an original location by re-forming lines and rectifying errors based upon a prior discovery and location, and the relocation of abandoned ground. The former, if properly made, and no other rights have intervened, takes effect, subject to the qualification heretofore stated, by relation, as of the date of the original; whereas, relocation of abandoned ground becomes operative only from the date of its perfection;1 and whether a given certificate is a mere amendment or a relocation of abandoned ground, will depend upon the facts as they exist, and not upon the recitals of the certificate. The second or amended notice is not an abandonment of the original.3 An amended notice cannot, by the mere omission to insert names of the original locators, divest the title acquired by the original location, unless done with their knowledge and consent."

Additional territory embraced within an amended location made by one co-tenant will inure to the benefit of all, on the principle that the right to change the boundaries arises out of, and relates back to, the original location.R

1 Cheesman v. Shreeve, 40 Fed. 787, 789.

Id.

Thompson v. Spray, 72 Cal. 528; Weill v. Lucerne M. Co., 11 Nev. 200, 213; Temescal Oil M. and D. Co. v. Salcido, 137 Cal. 211, 69 Pac. 1010.

Thompson v. Spray, 72 Cal. 528, 14 Pac. 182; Hallack v. Traber, 23 Colo. 14, 46 Pac. 110; Mono M. Co. v. Magnolia E. and W. Co., 2 Copp's L. O. 68; In re Teller, 26 L. D. 484, 486; In re Auerbach, 29 L. D. 208.

5 Morton v. Solambo C. M. Co., 26 Cal. 527; Gore v. McBrayer, 18 Cal 583; Moore v. Hamerstag, 109 Cal. 122, 125, 41 Pac. 805.

Hallack v. Traber, 23 Colo. 14, 46 Pac. 110. See Reagan v. McKibben, 11 S. Dak. 270, 76 N. W. 943, 945; Van Wagenen v. Carpenter, 27 Colo. 444, 61 Pac. 698.

Where the second, or amended, notice contains names other than those set forth in the original, in an action against strangers this fact cannot be taken advantage of. It may be treated as an original notice as to the persons whose names do not appear on the first, and as a supplemental or amended notice as to those whose names appear on both.1

Any radical change of the name of a claim might be construed as an attempt to hide its identity, and mislead adverse claimants in patent proceedings; 2 but the mere dropping of a descriptive prefix-as, for instance, naming a claim the "Tiger" instead of the "Little Tiger, "Shields" in place of "General Shields," or "Flag" instead of "American Flag, "-where the other descriptive portions of the notice are regular, is of no importance.3

It is not necessary that the purposes for which a certificate is amended should be specified. The filing of such certificate, if made under proper conditions, is effectual for all the purposes enumerated in the statute, whether such purposes are mentioned in the certificate or not.1

ARTICLE XI. RELOCATION OF FORFEITED OR ABANDONED CLAIMS.

§ 402. Circumstances under which relocation may be made.

403. New discovery not essential as basis of relocation.

§ 404. Relocation admits the validity of the original.

405. Relocation by original lo

cator.

§ 406. Relocation by one of several original locators in hostility to the others.

§ 407. Relocation by agent or others occupying contractual or fiduciary relations with original locator.

1 Thompson v. Spray, 72 Cal. 528, 529, 14 Pac. 182.

Morr. Min. Rights, 10th ed., pp. 112-113.

3 Seymour v. Fisher, 16 Colo. 188, 199, 27 Pac. 240. See Fisher v.

Seymour, 23 Colo. 542, 49 Pac. 30.

Johnson v. Young, 18 Colo. 625, 629, 34 Pac. 173.

Lindley on M.-46