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3 Iron Silver M. Co. vs. Cheeseman, 1 Col. Law Rep. 461; Vanzandt vs. Argentine M. Co., id. 524.

4 Ibid.

5 Foote vs. National M. Co., 2 Mont. 402.

§ 23. Manner of discovery.—It is of no consequence by what methods, whether with much or little labor that the vein or lode is discovered. All the labor and improvements required by the law, follow the discovery. The vein or lode may be discovered at the surface in outcroppings, immediately below the "wash," or at any conceivable depth below the surface of the underlying rock, and it will be a good discovery upon which to base a valid location.

§ 24. Rights secured by discovery.-From the date of discovery, the claimant has certain rights respecting the lode, which are indefeasible except by the United States. He has a right, within such period, and subject to such regulations as may be fixed by the local law, to locate a claim on the lode; and this right is superior to any location made on a subsequent discovery of the same lode. The maximum length of the location is fixed at 1,500 feet, and the maximum width at 300 feet on each side of the middle of the vein; and the minimum width to which claims may be limited by local regulations is fixed at 25 feet on each side of the middle of the lode. There seems to be no provision for limiting the length of claims by local regulation to less than 1,500 feet.2 Within the limits prescribed, state and territorial legislatures and district associations may regulate so as to affect the value of the rights secured by discovery; but these local regulations by what authority soever established, cannot deprive the discoverer of the substantial benefits of his discovery, nor can he be deprived of such rights, by the entry of a trespasser, or one who, by force, threats or other unlawful means, prevents him from per

fecting his right by locating the claim according the local regulations prescribed.

1 And a discovery stake with notice of the claim is good constructive possession for the time allowed by local law to complete the location work. Erhardt vs. Boaro, 1 Col. Law Rep. 497.

2 Rev. Stat. U. S., § 2320, ante, p. 14.

3 Erhardt vs. Boaro (U.S. Cir. Ct.) 1 Col. Law Rep. 497.

§ 25. Location.—Following the discovery, the next step is the location of the claim. Prior to the acts of Congress governing this act of formal appropriation, the requisite things to be done were prescribed entirely by local rules or customs. Most of the details in this respect are still left to the state or territorial legislatures, or to be regulated by district rules.1 But the section of the Revised Statutes cited contains a certain provision which was substantially embodied in an earlier act,2 requiring that the location must be distinctly marked upon the ground so that its boundaries could be readily traced. Saving the provisions as to length, width, and form of claims, this is all there is of the general law now in force requiring formal acts of location. The act of 1866 cited required the locator to mark his claim at the point of discovery by a substantial stake, post, or stone monument, having described thereon the name of the discoverer or discoverers, and the name of the lode or vein, with the date of discovery. Also, that before recording, he should sink a shaft on the claim at least ten feet deep, or deeper if necessary, to find a well-defined crevice, or forfeit all right and title acquired by discovery.3 By “distinctly marked on the ground," it is not to be understood that it is necessary to trace the boundary lines throughout their entire length, on the ground, or to erect fences or other substantial inclosures for that purpose. The accompanying words sufficiently designate the object of such marking, and if the boundaries "can be readily traced,” the

end will be attained and the means will not be closely inquired into. But marking a five-sided claim by posting a notice thereon, and marking three of its corners, was held insufficient to render the location valid.4 And posting a notice on a tree at each end of the claim was also held insufficient.5 It has been decided, however, that a line of stakes running lengthwise through the middle of the claim, distinctly marked and calling for so many feet on each side, was a sufficient compliance with this provision of the statute to determine the position of the side lines.6 Where a party relies upon a location by himself or grantors, and fails to show possession, he must show a valid location, according to the laws in force or the rules and customs of miners. But possession and use for a long time, with general recognition of the claim as located, have been held to cure defects in the location.8 The right to the claim is primarily in those in whose names it was located, whether by their active co-operation or not, and even where their express consent is not shown.9 It is also held that anyone authorized to locate a claim on the public domain may perform all the acts of appropriation through the agency of others.10 So it was held that a claim might be located by a corporation. Prior to the statute the amount of surface ground was regulated in general by its reasonableness, and if a larger amount in width was taken than was found to be reasonable, possession under the location was limited to the ground actually occupied.12 And where a claim was found to be excessive it was held void for the excess; but setting the stakes a few feet farther apart than allowed by law, did not invalidate the entire claim.13 Where a party was attempting to locate a claim, and was driven off by force, it was held that he had acquired a good possessory title against all persons.14

1 Rev. Stat. U. S., § 2324; ante, p. 15.

2 Act of Congress Feb. 9, 1866, § 2.

3 Ibid. This section of the act was repealed by the act of 1872, which is embodied and set forth in the Revised Statutes. The re quirements in the repealed section, not included in the subsequent act, are in most of the mining districts the subject of local legislation. The reader is therefore referred to subsequent pages containing the local regulations upon the subject of location. See post, Ch. xv, Local Statutes.

4 Hess vs. Winder, 30 Cal. 349.

5 Holland vs. Mt. Auburn, &c. Co., 53 Cal. 149.

6 North Noonday M. Co. vs. Orient M. Co., 9 Reporter, 601; Glee. son vs. Martin White, 13 Nev. 443. Posts or monuments at the corners and the center of end lines held sufficient. Southern Cross, &c. Co. vs. Europa M. Co., 15 Nev. 383.

7 Sullivan vs. Heuse, 2 Col. 424; Chapman vs. Toy Long, 4 Sawyer, 28.

8 Kinney vs. Con. Va. M. Co., 4 Sawyer, 382; Harris vs. Equator, &c. Co., 2 Col. Law Rep. 63.

9 Morton vs. Solambo C. & M. Co., 26 Cal. 527; Gore vs. McBrayer, 18 Cal. 583; Van Valkenburg vs. Huff, 1 Nev. 142.

10 Murley vs. Ennis, 2 Col. 300.

11 Whitman M. Co. vs. Baker, 3 Nev. 386.

12 Table M. T. Co. vs. Stranahan, 20 Cal. 198; s. c., 21 Cal. 548. 18 Atkins vs. Hendree, 1 Idaho, 108.

14 Robinson vs. Imperial M. Co., 5 Nev. 14.

§ 26. Survey, length, width, form.-The "survey" here referred to is not that which is required in order to obtain a patent; but merely the measuring off of the claim by metes and bounds and courses and distances. It is not even necessary that it should be done by a surveyor, provided it conforms to the requirement that the boundaries shall be distinctly marked. Prior to May 2, 1872, when the provisions now in force governing the length of claims were enacted, they were limited as to length, to 200 feet to the individual, or 3,000 feet to an association, with no definite limits as to width, beyond the provision that the locator should have a "reasonable quantity of surface for the convenient working of the same as fixed by local rules."2 But by the present law the length is fixed at 1,500 feet. The lan

guage of the statute does not seem to permit any variation from this by local legislation-certainly not to exceed this. But it has never been doubted that the locator may, within the prescribed limits fix the length at will. The width of claims is less definitely fixed by the the general law.3 The maximum width being 300 feet on each side of the middle of the vein or lode, and the minimum, 25 feet, on each side. The only provision as to form is that the end lines shall be parallel.4 and the claim shall be so many feet in length "along the vein."5 There have been some land office decisions upon this subject which would serve no good purpose as guides to the judicial interpretation of the statute, for the reason that they are so vague and uncertain.6 But as these decisions only affect the rights of applicants for patents they will be noticed elsewhere. The provision that the claim shall follow the vein, seems to give great latitude as to the shape of the claim as surveyed. Imight add further as to width that the construction which these provisions has received, is that these limits are not to be exceeded on either side, and that claims may be restricted to 25 feet on either side. So that if the locator in making his survey, found it impossible to take the full extent allowed by law or local regulation on one side, he could not make up the deficiency on the other. But the strict letter of the law as to width it has been found almost impracticable to observe, owing in a great measure to the uncertainty of the exact center of veins, even where the lode claim is taken upon what may be appropriately styled a vein. But the chief difficulty arises from the fact that lode claims are not in every instance located upon veins even approximately vertical in position. Many such are upon what are known as "flat," "blanket” or "horizontal" veins, which lie in such a position that it would be impossible by ordinary means to discover the

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