coming in after the first locator's time for record has expired and peaceably making a location over the first locator's ground, will have priority notwithstanding the fact that the first locator was in possession and the newcomer had notice of the first locator's situation. 207 What a Location Certificate Evidences.

In conclusion, it may be noticed that a location certificate has been said to be presumptive evidence of discovery;208 but, in the absence of statutes like those in Idaho, 209 Montana, or Nevada, this statement certainly seems unsound. 210 A location certificate, like the marking of the boundaries, is simply one of the essential acts of location and can prove only itself, 211 except in those cases where the statutes expressly provide otherwise, or where the certificate must contain certain statements of fact and must be under oath.212 Where the distances and courses set out in the description as recorded vary from the monuments or markings made on the ground, the latter prevail and will determine the locus of the claim.213

207 BROWN v. OREGON KING MIN. CO. (C. C.) 110 Fed. 728; COPPER GLOBE MIN. CO. v. ALLMAN, 23 Utah, 410, 64 Pac. 1020. See Russell v. Hoyt, 4 Mont. 412, 2 Pac. 25; Lockhart v. Wills, 9 N. M. 344, 54 Pac. 336; Belk v. Meagher, 104 U. S. 279, 26 L. Ed. 735. But see Omar v. Soper, 11 Colo. 380, 18 Pac. 443, 7 Am. St. Rep. 246; Zerres v. Vanina (C. C.) 134 Fed. 610; Ford v. Campbell (Nev.) 92 Pac. 206; Wailes v. Davies (C. C.) 158 Fed. 667. Under the Montana statute of 1907 this is, of course, not so. Laws Mont. 1907, pp. 22, 23. The Nevada cases are explainable by the burdensome nature of the Nevada act. See Morrison's Mining Rights (13th Ed.) 71. Similar reasons will explain the dictum contained in the premature relocation case of Last Chance Min. Co. v. Bunker Hill & S. Mining & Concentrating Co., 131 Fed. 579, 66 C. C. A. 299, that under the Idaho statute the failure of the locator to record does not justify a location by others.

208 CHEESMAN v. SHREEVE (C. C.) 40 Fed. 787; Jantzon v. Arizona Copper Co., 3 Ariz. 6, 20 Pac. 93; Cheesman v. Hart (C. C.) 42 Fed. 98; Strepey v. Stark, 7 Colo. 614, 5 Pac. 111. Compare Coleman v. Davis, 13 Colo. 98, 21 Pac. 1018; Vogel v. Warsing, 146 Fed. 949, 77 C. C. A. 199. See, contra, Smith v. Newell (C. C.) 86 Fed. 56.

209 Bismark Mountain Gold Min. Co. v. North Sunbeam Gold Co. (Idaho) 95 Pac. 14.

210 SMITH v. NEWELL (C. C.) 86 Fed. 56, 60; FLICK v. GOLD HILL & L. M. MIN. CO., 8 Mont. 298, 20 Pac. 807. That the certificates are not conclusive evidence, see Uinta Tunnel Min. & Transp. Co. v. Creede & Cripple Creek Min. & Mill. Co., 119 Fed. 164, 57 C. C. A. 200. In Montana a location certificate, or a certified copy thereof, is prima facie evidence of all facts properly recited therein. Laws Mont. 1907, p. 21. So in Nevada. Laws Nev. 1907, pp. 418-421, c. 194.

211 Mutchmor v. McCarty, 149 Cal. 603, 87 Pac. 85.

212 Bismark Mountain Gold Min. Co. v. North Sunbeam Gold Co. (Idaho) 95 Pac. 14.

213 Meydenbauer v. Stevens (D. C.) 78 Fed. 787; Steen v. Wild Goose Min. Co., 1 Alaska, 255; Price v. McIntosh, 1 Alaska, 286; Galbraith v. Shasta Iron

AMENDMENTS OF RECORD.

57a. The recorded papers may be supplemented and made good by the record of additional and amendatory papers; but, if the defective record sought to be cured was so defective that third parties were entitled to disregard it and make locations for themselves, the intervening rights of such third parties cannot be cut out by amendment. For a further discussion of amendments of record, see § 96a, infra.

Because a locator may want to change the boundaries of his claim, so as to make it conform to an unexpected course taken by the vein as disclosed by the development of the property, or so as to take in more ground, where less than the statutory ground has been taken up, or so as to cut off the right of a senior locator, who has abandoned or rendered forfeitable the senior location, to regain the conflict area by resuming work, or may want to change the name of the claim, or to supply defects in the original location certificate, or to validate a premature location or relocation, it is provided by statute in some states, and is a right that exists independently of special statutory provision, that an amended location certificate may be filed to show the real situation.214 A claim may be swung at right angles, if no intervening rights of third parties are infringed; 215 and it has even been held that, prior to the expiration of the time to record, it may be so swung, though the rights of third parties, acquired with due regard to what the first locator claimed in his location notice, have intervened. 210 So a claim's end lines may be reformed to get or vary extralateral rights.217

Co., 143 Cal. 94, 76 Pac. 901; Treadwell v. Marrs (Ariz.) 83 Pac. 350. See Act June 30, 1902, c. 1329, 32 Stat. 545. Compare notes 136 and 143, supra.

214 See Wilson v. Freeman, 29 Mont. 470, 75 Pac. 84, 68 L. R. A. 833. But in Montana it seems that a locator may not amend so as to change the point of discovery as shown by the discovery shaft, but can make such change only by a complete relocation. Laws Mont. 1907, p. 21.

215 DUNCAN v. FULTON, 15 Colo. App. 140, 61 Pac. 244. 216 SANDERS v. NOBLE, 22 Mont. 110, 55 Pac. 1037. While this case would have been all right as a decision under the act of 1866 (Johnson v. Parks, 10 Cal. 446), it cannot be supported as a decision under the act of 1872 (WILTSEE v. KING OF ARIZONA MIN. & MILL. CO., 7 Ariz. 95, 60 Pac. 896). See Morrison's Mining Rights (12th Ed.) 34. The Montana cases approving of Sanders v. Noble overlook the fact that there the original locator defined the situs of his claim. If he had not done so, the case could, of course, have been supported on the doctrine that the location notice "precludes the acquisition of rights within the area which would interfere or conflict with the right of the prior discoverer to swing his claim, so as to lay it along the lead after his explorations demonstrated its strike." Helena Gold & Iron Co. v. Baggaley, 34 Mont. 464, 476, 87 Pac. 455.

217 TYLER MIN. CO. v. LAST CHANCE MIN. CO. (C. C.) 71 Fed. 848; Doe

So the name of the claim may be changed.218 In all such cases the record should be amended to conform to the fact; 219 but no new discovery in land added is necessary.220

Where the original location is based on a discovery within the limits of a valid existing location, it is held in one state to be such a nullity that an amended location certificate, filed after the senior location becomes subject to relocation, will not cure it.221 In view of the decision of the United States Supreme Court in Lavagnino v. Uhlig that senior ground in conflict with a valid junior location accrues to the junior on the abandonment or forfeiture of the senior,222 and in view of the legitimate consequences which seem to flow from that decision, this doctrine is open to serious question. It, of course, is true that by amendment a void location cannot be made to cut out an intervening location; 223 but there was no intervening location in the case of Sullivan v. Sharp.224 The Colorado decision that a valid junior location. could acquire conflicting senior ground by amendment after the senior ground became subject to relocation 225 would seem to call for a different determination of Sullivan v. Sharp.226 The case of Lavagnino v. Uhlig, above mentioned, has not made it any less desirable, however, for the junior locator to record an amended location certificate, if he wishes to acquire beyond question conflict area subject to forfeiture, for only by such amendment will he be sure to cut off the senior locator's right to recover the conflict area by resuming work. 227

v. Sanger, 83 Cal. 203, 23 Pac. 365; Empire State-Idaho Mining & Developing Co. v. Bunker Hill & Sullivan Mining & Concentrating Co., 131 Fed. 591, 66 C. C. A. 99.

218 Butte Consol. Min. Co. v. Barker, 35 Mont. 327, 89 Pac. 302, 90 Pac. 177; Seymour v. Fisher, 16 Colo. 189, 27 Pac. 240. But care must be taken not to mislead adverse claimants thereby.

219 SEYMOUR v. FISHER, 16 Colo. 189, 27 Pac. 240. But see Wiltsee v. King of Arizona Min. & Mill. Co., 7 Ariz. 95, 60 Pac. 896.

220 TONOPAH & S. L. MIN. CO. v. TONOPAH MIN. CO. OF NEVADA (C. C.) 125 Fed. 389. But see Weed v. Snook, 144 Cal. 439, 77 Pac. 1023. And that it may be necessary, if land claimed by others by possession without discovery is sought to be acquired, see Biglow v. Conradt (O. C. A.) 159 Fed. 868. 221 SULLIVAN v. SHARP, 33 Colo. 346, 80 Pac. 1054. See Moyle v. Bullene, 7 Colo. App. 308, 44 Pac. 69. But see Frisholm v. Fitzgerald, 25 Colo. 290, 53 Pac. 1109.

222 LAVAGNINO v. UHLIG, 198 U. S. 443, 25 Sup. Ct. 716, 49 L. Ed. 1119. But see FARRELL v. LOCKHART, 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Ed. -, and Moorhead v. Erie Min. & Mill. Co. (Colo.) 96 Pac. 253.

223 Brown v. Gurney, 201 U. S. 184, 26 Sup. Ct. 509, 50 L. Ed. 717.

224 Sullivan v. Sharp, 33 Colo. 346, 80 Pac. 1054.

225 JOHNSON v. YOUNG, 18 Colo. 625, 34 Pac. 173.

226 33 Colo. 346, 80 Pac. 1054. "Void" might well be defined "voidable." See Kinney v. Lundy (Ariz.) 89 Pac. 496.

227 See Oscamp v. Crystal River Min. Co., 58 Fed. 293, 7 C. C. A. 233, and dictum in Moorhead v. Erie Min. & Mill. Co. (Colo.) 96 Pac. 253.

An amended location certificate takes effect by relation back to the date of the original location.228 If the location or location certificate was so defective as to enable third parties to disregard it and to locate for themselves, then the intervening vested rights acquired by such third parties cannot be cut out by amendment and relation back,229 though, if the original location or location certificate is merely irregular, such intervening rights may be cut out by amendment.280 The amended location certificate should contain a statement that it is an amendment, and that it is made and filed without prejudice. It has been held, however, that it need not specify for what purpose it is filed. 231 It has been held, also, that both the original certificate and the additional certificate are admissible to identify the claim with certainty, where neither could do it alone.2 232

ADDING AND DROPPING NAMES OF LOCATORS.

57b. In some cases locators are allowed to drop the names of old locators and to add the names of new ones by amendment.

Whether the names of old locators may be dropped and new ones added by amendment depends upon the way they happen to be dropped or added. A grantee of an original locator may well take the place

228 Strepey v. Stark, 7 Colo. 614, 5 Pac. 111; McGinnis v. Egbert, 8 Colo. 41, 5 Pac. 652; Craig v. Thompson, 10 Colo. 517, 16 Pac. 24; McEvoy v. Hymman (C. C.) 25 Fed. 596. See Milwaukee Gold Extraction Co. v. Gordon (Mont.) 95 Pac. 995.

229 BEALS v. CONE, 27 Colo. 493, 62 Pac. 948, 63 Am. St. Rep. 92; Hall v. Arnott, 80 Cal. 348, 22 Pac. 200; Jordan v. Schuerman, 6 Ariz. 79, 53 Pac. 579; Brown v. Oregon King Min. Co. (C. C.) 110 Fed. 728; Bunker Hill & Sullivan Mining & Concentrating Co. v. Empire State-Idaho Mining & Developing Co. (C. C.) 134 Fed. 268; Jordan v. Duke, 6 Ariz. 55, 53 Pac. 197; Morrison v. Regan, 8 Idaho, 291, 67 Pac. 956; Bismark Mountain Gold Min. Co. v. North Sunbeam Gold Co. (Idaho) 95 Pac. 14; Butte Consol. Min. Co. v. Barker, 35 Mont. 327, 89 Pac. 302, 90 Pac. 177; Deeney v. Mineral Creek Milling Co., 11 N. M. 279, 67 Pac. 724. See Gilbson v. Choteau, 13 Wall. (U. S.) 101, 20 L. Ed. 534. A defective relocation certificate cannot be cured by amendment, so as to destroy the effect of a resumption by the original locator. FIELD v. TANNER, 32 Colo. 278, 75 Pac. 916.

230 McEvoy v. Hymman (C. C.) 25 Fed. 596; Craig v. Thompson, 10 Colo. 517, 16 Pac. 24; Cheesman v. Shreeve (C. C.) 40 Fed. 787. See Frisholm v. Fitzgerald, 25 Colo. 290, 53 Pac. 1109. The amended location certificate may be filed and become effective after suit brought concerning the claim. Strepey v. Stark, 7 Colo. 614, 5 Pac. 111; Butte Consol. Min. Co. v. Barker, 35 Mont. 327, 89 Pac. 302, 304, 90 Pac. 177.

231 Johnson v. Young, 18 Colo. 625, 34 Pac. 173; TONOPAH & S. L. MIN. CO. v. TONOPAH MIN. CO. OF NEVADA (C. C.) 125 Fed. 389.

282 DUNCAN v. FULTON, 15 Colo. App. 140, 61 Pac. 244.

of the original locator in the amended certificate. So, if one locator may abandon his interest to his co-owners, it would seem to be proper to omit him in the amended certificate; 283 but the mere fact that he is not named in the second certificate is not proof of abandonment. 23* To save any question, a deed should be obtained from him, or his interest forfeited under the forfeiture to co-owner statute.285 The taking in of a new locator without the omission of any of the old may well be regarded as estopping the old from denying an interest to exist in the new. In any event, the fact that a second or amended notice or certificate of location of a mining claim contains names other than those set forth in the original cannot be taken advantage of by the other parties; but as to the persons whose names appear therein for the first time it may be treated as an original notice or certificate, and as a supplemental or amended notice or certificate as to those whose names appear on both.230

283 See Strang v. Ryan, 46 Cal. 53.

234 Thompson v. Spray, 72 Cal. 528, 14 Pac. 182; Doe v. Waterloo Min. Co., 70 Fed. 435. See Weill v. Lucerne Min. Co., 11 Nev. 200.

235 Query whether a relocation would answer. See Van Valkenburg v. Huff, 1 Nev. 142; and see § 96, infra.

236 TONOPAH & S. L. MIN. CO. v. TONOPAH MIN. CO. OF NEVADA (C. C.) 125 Fed. 389; Thompson v. Spray, 72 Cal. 528, 14 Pac. 182. See Gleeson v. Martin White Min. Co., 13 Nev. 442.