Where the location is upon unsurveyed land, or if upon surveyed land is of such a character that it is not required to conform to the public surveys, it has never been doubted that this all-important act of location should be performed, and that such locations should be marked in the same manner as lode locations.

The supreme court of the United States, in considering the sufficiency of the marking of a placer location, held that a notice written upon a stump in the middle of a creek to the effect that the locator claimed fifteen hundred feet running with the creek and three hundred feet on each side from the center of the creek, and that the claim was an extension of another claim, constituted a sufficient marking. The court said: "The creek was "identified and between it and the stump there was a "definite relation, which, combined with the measure❝ments, enabled the boundaries of the claim to be readily traced." 2

Where placer ground is located according to subdivisions of the public surveys, it has been contended that such marking is not necessary, and that a description in the posted or recorded notice by fractional subdivisions of the section, designating the township and range, serves the purpose of the law, and dispenses with this requirement as to marking on the ground.

This view has found support in a decision by Assistant Secretary Reynolds, wherein he holds, referring to the language of section twenty-three hundred and twenty-nine of the Revised Statutes, that the "like cir"cumstances and conditions" apply to discovery, location, and where the location is made on unsurveyed lands, marking the boundaries of the same, as of a lode claim. He says:

1Ante, § 448.

McKinley Creek M. Co. v. Alaska United M. Co., 183 U. S. 563, 576, 22 Sup. Ct. Rep. 84. See comments upon this case, ante, § 373.

"It does not, in my judgment, mean that when the placer is located on surveyed lands it is necessary to "mark the boundaries. There is no purpose that can "be subserved by so doing. The public surveys are as permanent and fixed as anything can be in that line, "and any fractional part of a section can be readily "found, and its boundaries ascertained, by that method, "for all time to come, and is necessarily more stable "and enduring than marking it by perishable or de"structible stakes or monuments." i

The supreme court of Montana inclines to the same view.2

But it seems to us that these decisions overlook several important matters:

3

(1) In the absence of any state legislation or local rule, no notice need be either posted or recorded.* What evidence is there on the ground, or elsewhere, of any appropriation which will warn off subsequent intending locators, if there are no marks to indicate it?

(2) Minor subdivisions are not surveyed in the field, but are protracted in the surveyor-general's office on the township plats, and the lines are wholly imaginary.5

It seems to us that the supreme court of California presents the logical view of the law. Said that court:

"The construction contended for does not seem to us "to be in harmony with the general purpose of the act. "The purpose of the requirement, that the claimant "shall mark the boundaries of his claim, is to inform "other miners as to what portion of the ground is 66 already occupied. The men for whose information "the boundaries are required to be marked, wander "over the mountains with a very small outfit. They "do not take surveyors with them to ascertain where "the section lines run, and ordinarily it would do them

'Reins v. Murray, 22 L. D. 409.

'Freezer v. Sweeney, 8 Mont. 508, 21 Pac. 20. * Ante, § 350.

• Ante, § 273.

'Ante, § 106.

66

no good to be informed that a quarter-section of a par"ticular number had been taken up. They would derive no more information from it than they would from "a description by metes and bounds, such as would be "sufficient in a deed. For the information of these men, it is required that the boundaries shall be 'dis66 'tinctly marked upon the ground.' The section lines may not have been 'distinctly' marked upon the "ground, or the marks may have become obliterated by "time or accident. And to say, that the mere reference "to the legal subdivision is of itself sufficient, would, "in our opinion, defeat the purpose of the require“ment.”1

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The views of the supreme court of Colorado are in harmony with those of the California courts.2

The supreme court of Montana has held that a separate marking of the boundaries as to each twenty-acre tract within a larger area, located by an association of persons, is not necessary. It is sufficient if the exterior boundaries of the larger area be marked.3

We think we are justified in the conclusion, that placer locations must be marked on the ground with the same care, and for the same object and purpose, as in case of lode locations.

455. State legislation as to marking boundaries of placer claims.-There is no legislation on the subject of marking placer locations in California or Oregon. As to New Mexico, South Dakota, and North Dakota, it is difficult to determine whether their laws were intended to apply to placers or not. Of course, the necessity for marking arises from the terms of the federal law. State

White v. Lee, 78 Cal. 593, 596, 12 Am. St. Rep. 115, 21 Pac. 363, (followed in Anthony v. Jillson, 83 Cal. 296, 23 Pac. 419; Temescal O. and M. Co. v. Salcido, 137 Cal. 211, 69 Pac. 1010).

Sweet v. Webber, 7 Colo. 443, 4 Pac. 752.

3 McDonald v. Montana Wood Co., 14 Mont. 88, 43 Am. St. Rep. 616, 35 Pac. 668.

or territorial legislation may determine the character of marking within reasonable limits, but cannot dispense with the requirement of the federal laws.

Colorado requires the boundaries to be marked prior to recording the certificate of location (thirty days from discovery) by placing a substantial post at each angle of the claim.1

Arizona requires the marking of boundaries by a post or monument of stones at each angle of the claim located. When a post is used, it must be at least four inches square by four feet six inches in length, set one foot in the ground, and surrounded by a mound of stone or earth. If, on account of a bed of rock or precipitous ground, it is impracticable to sink such posts, they may be placed in piles of stones. When a mound of stones is used, it must be at least three feet in height and four feet in diameter at the base. If for any reason it is impossible to erect and maintain either a post or monument of stone at any angle of the claim, a witness post or monument may be used, and must be placed as near the true corner as the nature of the ground will permit.2

Idaho, Montana,* and Utah' require the same marking as in case of lode claims.

Nevada requires the same marking as in lode claims, except that where the location is on public surveyed lands it may be taken by legal subdivisions, and no markings are required other than those of the survey." Washington requires that the locator shall within 'Mills' Annot. Stats., § 3136.

'Rev. Stats. (1901), §§ 3242-3243.

Laws of 1895, p. 25, § xii, as amended-Laws of 1897, p. 12; Civ. Code (1901), § 2563; Lode claims, ante, § 374.

• Rev. Code of 1895, § 3611; Lode claims, ante, § 374.

*Laws of 1899, p. 26, § 3; Lode claims, ante, § 374.

Comp. Laws (1900), § 220; Lode claims, ante, § 374.

"If the federal statute, properly interpreted, requires a marking on the ground, the Nevada law is repugnant to it and void.

Laws of 1899, p. 71, as amended-Laws of 1901, p. 292.

thirty days from the date of the discovery so distinctly mark his location on the ground that its boundaries may be readily traced, and this whether the claim is located by legal subdivisions of the public surveys or not.

Wyoming requires surface boundaries to be designated before recording the location certificate (ninety days from discovery), by substantial posts or stone monuments at each corner of the claim.1

ARTICLE VII. THE LOCATION CERTIFICATE AND ITS RECORD.

§ 459. State legislation concerning location certificates and their record.

8 459. State legislation concerning location certificates and their record. As in the case of lodes, certificates of location 2 and their record are the subject of state or local regulation. Where such certificates are required, and their record is provided for, the same general rules apply as in the case of lodes. Where a record is made necessary, the requirements of the federal law as to contents of such record are mandatory. There are no specific provisions on the subject in either Washington, Utah, South Dakota, North Dakota, Oregon, or New Mexico. It is possible that in New Mexico, North Dakota, and South Dakota the laws governing lode claims may be construed to cover placers, but it is extremely doubtful if such is the case. Other states make special provision for this class of cases.

Arizona.-Within sixty days after the date of location, the locator must record a copy of the location notice as posted."

'Laws of 1888, pp. 88-90, § 22; Rev. Stats. (1899), § 2553, as amended -Laws of 1901, p. 104.

Ante, § 379.

Ante, §§ 273, 328.

* Ante, § 273.

Rev. Stats. 1901, § 3244; contents of location notice, ante, § 442.