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il rights on all other questions, as though no such writ I issued.1

The foregoing sections are from Rev. Codes Dakota (1877), Ch. p. 159.

V. IDAHO.

CTION 288 Location and notice of claim.

289 -Recording of claims.

289a-Destruction of notice-Misdemeanor.
2896-Rights of way and easements.

289c-Water rights.

289d-Miners' liens-Sub-contractors, journeymen, la-
borers, material-men.

289e-Same-Contractors, preparation of ores, superin-
tendents, etc.

289f-Same- Superstructures and improvements in

cluded.

289g-Exemptions from execution.
289h-Limitation of actions.

289i-Rules and customs control.

§ 288. Location and notice of claim.-Locators of mining claims shall, at the time of location, place a stake or post, not less than four inches square or in diameter, at each end of the ground claimed, and a similar stake at each corner, which stakes must be four feet high. To one of the center end ones must be attached the notice of location. The notice shall contain the date of location, name of locator and of claim, the quantity in feet along the ledge or lode, and the width claimed from the middle of the vein; also a description of the locality of the claim as near as possible, by reference to surrounding landmarks. When stakes or posts cannot be conveniently had, monuments of stone will suffice, but the notice in either case must be conspicuous. Three hundred feet may be claimed on each side of the middle of the vein or lode, but the original number of feet staked out shall not afterwards be increased so as to affect the rights of others.

§ 289. Recording of claims.-Claims are to be recorded within fifteen days from the time of posting notice in the district in which they are located, or at the nearest office to the claim. Recorders of counties may appoint deputy recorders at the request of ten or more locators, or upon failure so to do the locators may elect one temporarily. Within five days after presenting notice for record, one of the locators shall appear before the deputy and make affidavit in writing on, or attached to, the notice. The notice filed for record must be substantially a copy of the notice posted on the claim, and it shall be the duty of the deputy recorder to record the same in a book kept for that purpose. He shall transmit to the county recorder at least once a month all the notices so filed.

1 FORM OF AFFIDAVIT.

TERRITORY OF IDAHO,
COUNTY OF

I,

SS.

do solemnly swear that I am acquainted with the mining ground described in the notice of location herewith, called the ledge, lode or claim, and that the ground and claim therein described, or any part thereof, has not, to the best of my knowledge and belief, been heretofore located according to the laws of the United States and of this territory, or if so located, that the same has been abandoned or forfeited by reason of the failure of such former locators to comply, in respect thereto, with the requirements of said laws.

Subscribed and sworn to before me this

18-.

day of

A. D.

§ 289a. Destruction of notice-Misdemeanor.-Any person taking down or destroying any stakes, posts, or monuments, or taking down, destroying, or obliterating any notices, shall be deemed guilty of a misdemeanor, punishable by fine not exceeding $100, or imprisonment in county jail not exceeding six months, or both.1

1 Laws of 1881, pp. 262, 263, 264, 265.

§ 2896. Rights of way and easements.--Whenever any mine or mining claim is so situated that a right of way over adjoining premises is necessary, for the more convenient enjoyment of the same, the owner or owners thereof shall be entitled to such right. Sec. 3. If it cannot be had by agreement with the owner or owners of the land over or across which the right of way is sought, the party entitled to it may present his petition praying for an award of the right, to the judge of the district court within and for the county in which such right of way, or some part thereof sought to be enforced, is situated. Upon filing the petition the clerk shall issue a citation to the owners of the land named in the petition to appear before the judge, at a day named (not less than ten after service), and show cause why such right of way should not be granted. Upon a hearing of the case, if the judge is satisfied that the right of way should be granted he shall make an order to that effect, and appoint three commissioners to assess the damages resulting to the lands affected by such order. The judge may set aside the report of the commissioners for good cause shown. Appeals from the report of the commissioners may be made and prosecuted by any party interested, in the proper district court, but appellant must serve written notice on appellee, and file a bond, with sureties, to be approved by the clerk, in the amount of the assessment appealed from, and conditioned that appellant shall pay all costs awarded the appellee, and abide by the judgment which may be rendered in the cause. Appeals bring before the appellate court, only the property and the amount of damages, and are tried by the court or before a jury as other cases. The prosecution of an appeal shall not prevent or delay the appellee in the use and enjoyment of his right of way, provided he tenders the owners of the land the sum as

sessed as damages by the commissioners and files a bond with good and sufficient sureties, approved by the clerk, in double the amount appealed from, and conditioned for the payment of the amount which may be recovered by appellant in the action. If the appellant recover $50 more damages than the commissioners have awarded, or the appellee shall offer to allow judgment to be taken against him, the appellee shall pay costs, otherwise the appellant. If the applicant for the right of way shall have tendered to the parties owning or occupying the lands a sum equal to or more than the amount of damages recovered by the defendant or defendants, then they shall pay all the costs and expenses of the proceedings. These provisions do not apply to the counties of Boise, Idaho, Nez Perce, and Shoshone.1

1 Laws of 1877, pp. 70, 71, 72, 73; Laws of 1881, p. 266.

§ 289c. Water rights.-The right to the use of flowing water may be acquired by appropriation, and priority of time secures priority of right. The appropriation must be in good faith, and when once perfected may be used for any beneficial purpose. The place of diversion may be changed or the course of the stream extended, provided the vested rights of others are not infringed. Written notice of appropriation and diversion must be posted at a conspicuous point, and a copy of the notice furnished to the proper officer of the county for record. The appropriator must commence the intended diversion within sixty days after notice is posted, and continue the work to completion without unnecessary delay. "Complete diversion" is the conducting of the waters claimed to the place of intended use, followed by the actual beneficial use thereof. When the appropriation is perfected the right relates back to the time of posting notice, but no one is liable to the appropriator for the use of the

water before a "complete diversion" thereof is effected. Appropriators of streams desiring to make a diversion are entitled to a right of way over adjacent lands to the place of intended use. Upon a refusal to grant this privilege by the owners of such lands it may be obtained by a petition to the county commissioners.1

1 Laws of Idaho, 1881, pp. 267-271.

§ 289d.

Miners' Lien- Sub-contractors, journeymen, laborers, material men.-SEC. 12. Every sub-contractor, journeyman, laborer, or other person, performing labor or furnishing materials for any contractor in or upon any quartz claim, ledge or mine, in working in the same, or in the improvement or development thereof, in the completion or performance of any contract entered into by any person in this territory, every such person or persons so performing such labor or furnishing such material shall have a lien upon all the interest in such quartz claim, ledge, or mine, of the person or persons employing him or them, or purchasing such materials, with the improvements thereon and the appurtenances thereto belonging; and also, upon all the interest of the person or persons for whom such person or persons acts as agent, or the owner or owners for the value of such work or labor or materials furnished; and all the provisions of this act1 shall apply in respect to recording, recovering, and enforcing such liens provided for in this section: Provided, the person or persons claiming such lien shall, within thirty days after the performance of such labor, or furnishing such materials, give notice in writing to any person or persons, agent or agents, owner or owners, and shall, within forty days, file their lien in other respects as provided by this act.

1 General Lien Law.

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