transpose the condition of the parties, and thereby materially change the rights of the contending parties.

2. It is claimed that the patent for the Highland Chief did not follow the final survey in this, to wit: that its final survey did not include any of the surface-ground of the Prince of Wales, while it is conceded that the patent did include all the surface-ground where the Highland Chief crosses the Prince of Wales and the discovery shaft of the Prince of Wales and many of its valuable works.

The field-notes of this survey made October 5, 1871, upon this point are as follows: "From post No. 2, I run N. fiftythree degrees E., nine hundred and nineteen feet to Prince of Wales claim, one thousand two hundred feet, leave Prince of Wales claim." And again: "From post No. 4, I run S. fifty-three degrees W., two hundred and fifty-eight feet to Prince of Wales claim, four hundred and ninety-five feet; leave Prince of Wales claim."

The natural construction of this language is, that the spaces between the nine hundred and nineteen and one thousand two hundred feet on one side and two hundred and fifty-eight and four hundred and ninety-five feet on the other side were omitted. If they were, the description is correct. If there is doubt whether they were omitted or not, it is proper to explain that doubt by the testimony of experts in surveying. Mr. Freeman, the deputy United States mineral surveyor, who made this survey, testifies that he did omit the surface premises of the Prince of Wales, and that he intended so to do. This is highly probable from the nature of the case. He found the Prince of Wales in the actual occupancy of this surface-ground. He saw that it had its discovery shaft and valuable mining works upon it, and he probably knew that the Prince of Wales was the first locator, inasmuch as he was a surveyor and familiar with the mines in that location.

He would, therefore, very naturally pass over the premises, and exclude them from his survey, unless he had directions. from his employers to do otherwise. I do not think that he had any such instructions, and my reason for so thinking will appear when I come to consider another branch of this subject. It is true that Freeman, in making up the area of his survey, did not exclude from such area the surface

ground of the Prince of Wales, amounting to 24-100 of an acre. It probably escaped his recollection when he came to make his plat. In my judgment the weight of the evidence shows that the surface-ground was excluded from the survey. It should therefore have been excluded from the patent, and it was error to include it.

It is claimed that the final survey and patent of the Highland Chief did not follow the original application and notice, and that the claim was floated to the eastward so as to include the discovery and works of the Prince of Wales.

The Highland Chief was located September 12, 1870. In the location notice the lode is described as "commencing at the discovery stake, and running six hundred feet in a southerly direction and six hundred feet in a northerly direction therefrom. * * * Situate about five or six hundred feet westerly from the young Columbia and Wandering Boy lodes, Big Cottonwood district, Utah Territory." A location five hundred or six hundred feet westerly from the Wandering Boy lode would exclude the premises now in controversy.

The diagram of the Highland Chief, attached to its application for patent, represents the Prince of Wales and Wandering Boy Lodes as lying to the east of the premises claimed by the Highland Chief. The application and publication notice both allege that "from discovery shaft the lode extends north-easterly six hundred (600) feet, and south-westerly therefrom six hundred (600) feet. There are no known adjoining claimants at either end; the nearest known claims being the Prince of Wales and Wandering Boy mines, on the easterly side of said lode."

Parties are bound by the notice.

Under such an application and published notice, it is very clear to my mind that the applicants had no right to go to the eastward so as to take in and appropriate the mines which they allege are on the "easterly side" of their lode. The object of requiring notice to be given by publication is to inform all parties who may have an adverse interest of the premises sought to be acquired, so that they may appear and assert their rights. If the notice describes premises in which others have no interest, then such other

persons may safely neglect to appear and set up any claim. They are bound by the notice, and, if they neglect it, they must do it at their peril; but the moment they find that the notice does not ask for anything in which they have an interest, that moment they may safely sleep, if they please. They are not bound, and should not be bound, to look after subsequent proceedings for fear that there may be a subsequent claim set up to their property. There can be no subsequent claim that varies materially from the original one, which is embodied in the application and publication. The law must be followed. The proceeding is a special statutory proceeding, and all the provisions of the law must be carefully and, as some authorities say, strictly pursued. Actual notice without publication will not answer. Written notice would not be sufficient, because the statute says that there must be notice by publication.

Premises not described can not be claimed without new publication.

If the published notice described certain premises, none other can be afterwards claimed and appropriated without a new application and new published notice, and if there should be a subsequent effort to include premises other than those included in the original application and notice, and an adverse claimant should appear and assert his claim to the new premises thus sought to be appropriated, and should fail in maintaining his claim, either by reason of not filing the same in time or for defect in form, he would not, in my opinion, be thereby in any worse position than he would have been if he had not appeared at all. In this class of cases consent can not give jurisdiction. It is a substantial compliance with the statute which alone can give jurisdiction.

As we have seen, the location, application, and published notice of the Highland Chief severally excluded the premises of the Prince of Wales, now in controversy. It further appears, from the testimony on file, that the owners of the Highland Chief, in the early stages of their proceedings for patent, did not intend to include the Prince of Wales mine.

Mr. Stevenson, who was the surveyor that made their original diagram, testifies that he was instructed to avoid the Prince of Wales, and that he did so. There is nothing

in the case that indicates any intention on their part to appropriate it until after they discovered that the final survey might be construed to include it, and they had succeeded in excluding its adverse claim. I think it was error to include it in their patent.

THE WANDERING BOY.

This mine was located and recorded August 6, 1870, and before the Highland Chief. Its owners have made an application like that of the Prince of Wales. The Highland Chief crosses their surface-ground, and they ask that proceedings may be commenced in the name of the United. States to set aside its patent. From what has already been shown, it appears that the Wandering Boy was excluded from the location, and application, and notice by publication of the Highland Chief, and for these reasons it also should have been, but was not, excluded from the patent to the Highland Chief.

I am therefore of opinion that the applications of the Prince of Wales and Wandering Boy should be granted, unless the applications made by Schenck and Mundy to set aside their patents should be granted, and I will proceed to consider them.

1. The Prince of Wales.

To this claim it is objected that its location is void for uncertainty. The notice of location is as follows:

"The Prince of Wales lode.

"Discovered by Thomas E. Owens, August 1, 1870. We, the undersigned, in company and undivided, claim one thousand two hundred feet on the above lode or mass of ore, or whatever it may contain, two hundred feet for discovery, and one thousand feet for location along this vein, wherever it may run, together with all dips, spurs, angles, and variations, with all the privileges granted by the laws of the district, and the Congressional laws of the United States. This lode is situated on the right-hand fork of the creek known as Silver Fork, within about two hundred feet in a south-easterly direction of the lode called the 'Antelope,' in Big Cottonwood canyon, and now supposed to run in a south-westerly and north-easterly direction.

"Discovery-Thomas E. Owen, 400; H. W. Bishop, 200; T. Robinson, 200; S. J. Despain, 200; H. Burnette, 200."

Location notices not held to technical accuracy.

In considering the question now presented, it should be borne in mind that the discovery of lodes, and the preparation of location notices for the same, are generally made by unlettered men, and it would be productive of great hardship, and perhaps generally result in an entire loss of their valuable discoveries, if they were held to technical accuracy in their notices of location. Accordingly, it has been uniformly held by the courts and this department that extreme liberality should be shown to these notices, and if they were sufficiently certain to put an honest inquirer in the way of ascertaining where the lode was, that was sufficient. I think the present notice is reasonably certain, and that its locus could be found from the description given.

It is much more certain than many locations that have been carried into patent even when contested.

2. It is objected that the application for patent and the final survey and patent do not conform to the original location.

That parol evidence is admissible to aid in the location of a mining claim and define what tract is embraced in a location is well settled. (Com'r G. L. O. Instructions of Nov. 20, 1873; Kelly v. Taylor, 23 Cal. 14.)

The testimony of four deputy mineral surveyors and four others, their attendants, has been filed in this case, and shows that they have made a careful survey of the premises, and find that the location, application, and patent are for substantially the same premises. These persons have the means of knowing, and have no motive that I can see for misstating the facts. This objection, I think, is not supported by the weight of the evidence, and is therefore overruled.

3. It is objected that the proof of publication of the notice of intention to apply for patent was published from January 6, 1871, to April 6, 1871, a period of only eightynine days, including both the first and last days of publication.

Objection as to duration of publication of notice must be raised before patent issues.

One of the vices of this objection is, that assuming the