locator an opportunity to correct his record when defects are found therein, and when it is corrected the amendment takes effect with the original as of the date thereof. "Errors and mistakes in certificates of location are of frequent Occurrence. Under the law as it is at present a fully complete and unimpeachable certificate cannot be made without the aid of a surveyor and the best instruments. It is often, and perhaps generally, impracticable to obtain the services of a surveyor in making a location, and the miner must depend upon his own skill and judgment. In such effort he usually fails. Indeed, it may be said, as to the course of his lines, he is always in error, and the natural object and permanent monument required by section 2324 are entirely beyond his grasp. He does not know what they are, nor how to refer to them. Every one who is at all familiar with mining locations knows that in practice the first record must usually, if not always, be imperfect. Recognizing these difficulties, it has never been the policy of the law to avoid a location for defects in the record, but rather to give the locator an opportunity to correct his record whenever defects may be found in it, and the section (Gen. Stat. Colo. 2400) which declares that defective certificates shall be void, when read in connection with section 25 (2409), and qualified by it, will be understood as saying that defective certificates are lacking in force and sufficiency until amended as provided in section 25 (2409), but not wholly void." Fuller v. Harris, 29 Fed. 814 (1887), C. C. D. Alaska. At the time of the location of a quartz mining claim by the employees of the claimant, there were no local rules of the mining district requiring a record of the location. Subsequently the claim was located by the owner so as to conform to the requirements of the act of Congress. Held, that as there was a real location of the claim by the employees of the claimant, they being his agents, his title dated back to the first location. Tombstone Town Site Cases, 15 Pac. 26 (1887). A Arizona. notice of location of the ground was filed Feb. 25, 1879. It was so uncertain that the land could not be identified, and was aided by no evidence. The record was amended on Nov. 20, 1880, and a mineral patent for the land described in the amendment was issued Aug. 15, 1882. A town site covering the land was entered April 9, 1880. This latter prevailed. Strepey v. Stark, 7, 614 (1884). An "additional" Colorado. location certificate differs from documentary muniments of title. It is not proof of title, nor does it establish a possessory right. It is, when recorded, notice of the facts required to be set forth therein, and is one of the steps requisite under the statute to constitute a mining location. Four things are necessary in order to perfect a location: (1) Sinking of a discovery shaft; (2) Posting a discovery notice; (3) Marking the surface boundaries; (4) Making and recording a location certificate. To establish a right of possession under an alleged location, the first three of these must be proved by evidence outside of the certificate. The certificate, when recorded, is evidence of the date of location, the description of the premises, and the compliance with the statutory requirements of making out and recording the same. An additional certificate operates to cure defects in the original, and thereby to put the locator, where no other rights have intervened, in the same position he would have occupied if no such defects had occurred. Its admissibility in evidence is not affected by the circumstance that it was filed after acquired right of interest, but merely relates to the right of possession which must have been acquired prior to the filing of the certificate, and to the acquisition of any intervening right of the adverse party. Craig v. Thompson, 10, 517 (1887). Where one has made a location valid in other respects, but had filed an invalid certificate, an amended certificate, filed before the defendant had acquired intervening rights, would as to him relate back to and preserve the claim as originally located. The defendant did not acquire intervening rights by acts done upon the land within the sixty days after plaintiff's discovery in which he was entitled to do his discovery work. The defendant was then a trespasser. Seymour v. Fisher, 16, 188 (1891). The law allows a change of boundaries when amended certificates are filed, and an injury to superior rights thereby is effectually waived by failure to adverse. Becker v. Pugh, 17, 243 (1892). An amended location certificate is not void because it covers additional ground. It is not necessary, in order to hold that ground, to sink a new discovery shaft and fix new boundaries in the same manner as if it had been an entirely new location. Nor is it necessary to sink the original discovery shaft ten feet deeper. (e.) Mistakes in the Record. Where the locator has honestly complied with all the local rules and requirements as well as those set forth by the act of Congress, mistakes of the recorder in copying the certificate will not divest his title. California. Myers v. Spooner, 55, 257 (1880). Where locators of mining claims have complied with the local rules and regulations in making their location, their title cannot be affected by a mistake of the recorder in copying the notice in the record book. Weese v. Barker, 7, 178 (1883). Where a location cerColorado. tificate appears to be in compliance with the statute, a mistake by the recorder, who recorded the name "Farmer Boys instead of "Tanner Boys," which did not mislead the subsequent locator, cannot avail the latter. (f.) Requirements as to the Time and Place of recording Certificate.1 These are matters of State, Territorial, or local regulation. The act of Congress makes no requirement as to the time or place in which the certificate must be filed.2 Where the State or district does not prescribe the time within which the certificate must be recorded, it should be done within a reasonable time. The Land Office suggests twenty days after the location has been marked on the ground. Regulations, par. 16. A failure to record the certificate within the time fixed by law may be cured at any time by recording it, provided no other certificate for the same claim, based on the requisite precedent acts of location, has been recorded. After the expiration of the limited time without the recording of the certificate, a record filed which is based on a junior discovery becomes the senior location. Faxon v. Barnard, 4 Fed. 702; s. c. 2 McCrary, United States. 44 (1880), C. C. D. Colo. The Colorado statute requires that the certificate of the location of a mining claim must be filed of record in the office of the recorder of the county in which the claim may be, within three months next after the discovery of the lode. Held, that failure to record the certificate within the prescribed time would not render the same invalid, provided all things had been done as the act required, before any other and better right to the same ground had been perfected. Therefore when the Ontario lode was discovered on the public land, Feb. 11, 1878, the location completed in July of the same year, and the Green Mountain lode was discovered in August, 1877, and the location completed by filing for record a certificate of location in March, 1878, and these two locations partly overlapped each other, it was held that the claim of the Green Mountain lode would prevail over the Ontario lode upon the question of priority of discovery and location. California. Thompson v. Spray, 72, 528 (1887). Recording notice before posting does not invalidate it. Kramer v. Settle, 1, 485 (1873). A failure to record a notice of location within the required time may be cured by recording it before a subsequent location. Idaho. 1 See also Div. II., this chapter. Arizona, Rev. Stats. 1887, sec. 2349; Colorado, M. A. S., secs. 3136, 3150; Act March 5, 1895, sec. 4, p. 26; Minn., Gen. Stats. 1894, secs. 4073-5; Montana, Pol. Code 1895, sec. 3612; New Mexico, CHAPTER VIII. THE EXTENT OF THE CLAIM. I. Lode Claims. III. Cases arising prior to the Act of 1872. PRIOR to 1866 in the case of lode claims, and 1870 in the case of placer claims, the amount of ground and the length of lode which might be located in a single claim was determined by the regulations of the district in which the location was made. In the absence of regulations, the claim was invalid if unreasonable in extent as creating a monopoly, and the reasonableness of the extent was determined by the general usage of the country. Congress in 1872 (Rev. Stats. 2320) fixed 1,500 feet as the length along the vein or lode which a single claim might equal, and 300 feet on each side of the middle of the vein (or the point of discovery) as the width beyond which the claim should not extend. In other words, the maximum dimensions of a location for a lode claim allowed under the United States statutes now in force are 1,500 by 600 feet; but within this extreme local regulations may limit the extent to any distance not less than 25 feet on each side of the middle of the vein. This distance may be measured from the walls or sides of the vein if so provided by the provisions of local regulations, but such measures are not contemplated by the United States law. If a claim is located so that it calls for a greater extent than prescribed by the act and the local regulations, and this is done inadvertently or without the purpose of exceeding the legal limit, it is not entirely void, but only as to the excess over the legal amount. But if such a location is made without excuse, and is grossly excessive, it is entirely void. A patent issued for an excessive location is subject to the same rules as the location, and is void as to the excess. The size of placer claims is prescribed by the acts of 1870 and 1872, Rev. Stats. 2330 and 2331. According to the provisions of these, the extent of a placer location is limited to twenty acres for each individual, and no association can locate more than one hundred and sixty acres. The restrictions imposed by these sections do not prevent the locators from purchasing any number of other contiguous claims which have been properly located by others, and obtaining a patent for the whole as one claim.1 A patent for such a claim is valid. But, on the other hand, the mere use of the names of a number of locators who have agreed to convey their interests to the actual locator for whom they have acted as agents without consideration, the purpose being to evade the restrictions as to the extent of locations, is against public policy, and equity will not enforce a trust based on such an agreement. I. LODE CLAIMS. A location as a lode claim, as above stated, is now governed by the provisions of Rev. Stats. 2320, which limit such location, whether made by an individual or an association composed of a number of persons, to 1,500 feet in length in the direction of the lode or vein. This may not be limited by State or Territorial laws or local regulations. As to the width of the claim, it must not exceed 300 feet on each side of the middle of the vein at the surface. This distance, however, may be limited by statutory or district regulation. Such regulation may not limit the surface ground to less than 25 feet on each side. The lateral measurement cannot exceed 300 feet on either side; the deficiency of one side cannot be made upon the other. The greatest extent of a lode claim, therefore, is a parallelogram 1,500 feet by 600. The length of this cannot be decreased. The width may be limited to 50 feet. Although a claim was located before 1872, and in accordance with a custom prescribing a greater width than 600 feet, it is not in the power of the Land Department to issue a patent for a greater extent than is provided in Rev. Stats. 2320. The shorter sides of the rectangular piece of ground are called end lines, and they must always be parallel. The longer sides are called side lines. Where the middle of the vein has not 1 In the case of placers, it seems, these need not be contiguous. 2 Colorado, M. A. S. 3148, 3149; Dakota, Comp. L. 1887, ch. 19, art. 1, sec. 1998; Idaho, Rev. Stats. 1887, sec. 3100; North Dakota, Rev. Codes 1895, sec. 1427; Oregon, Hill's Ann. Laws 1892, sec. 3827; 3 As to rules governing the direction of these lines see Chap. XV., Div. I. |