77 P. 81 | Or. | 1904
after stating the facts in the preceding words, delivered the opinion of the court.
Plaintiffs have by their complaint herein set out in detail the manner of locating the claim in dispute, with a view of determining the entire controversy upon the demurrer. Passing the contention made that the record does not contain a sufficient description with reference to some
1. Section 3975, B. & C. Comp., provides that a quartz claim shall be located by posting on the vein or lode discovered a notice of such discovery and location, indicating, among other requirements, the general course or strike of the vein or lode, as nearly as may be, with reference to some natural object or permanent monument in the vicinity, and by defining the boundaries upon the surface so that the same may be readily traced. It further provides that such boundaries shall, within thirty days after the posting of notice, be marked by six substantial posts, projecting not less than three feet above the surface of the ground, and not less than four inches square or in diameter, or by substantial mounds of stone, or earth and stone, at least two feet in height; that is to say, one of such posts or mounds of rock shall be established at each corner and one at each center end of the claim. Section 3976 provides that such locator shall-, within sixty days from and after posting the location notice, file for record with the recorder of conveyances, if there be one, who shall be the custodian of mining records-and miners’ liens, otherwise with the clerk of the county wherein said claim is situated, a copy of such notice, having attached thereto an affidavit showing that the work required to be done by section 3977 has been performed, and that no location notice shall be entitled to record until the work so required shall have been done, and the affidavit in proof thereof attached. Section 3977 provides that before the expiration of sixty days from the date of the posting of the notice of disco'v
It is plain in the present instance that Wright and Turner did not mark the boundaries of the claim in the manner prescribed, in that they omitted to establish the center end posts or monuments, and, further, that'they did not cause to be attached to the copy of notice of location delivered to the clerk for record an áffidavit in proof of the work required to be done under section 3977, and none such was recorded. These omissions we deem fatal to the valid initiation of their title. All these requirements pertain to the location of the claim, and, unless observed in their substance, there can be no location. No right or title in the public domain can be acquired without such observance. “ The right to the possession,” says Mr. Chief Justice Waite in Belk v. Meagher, 104 U. S.
2. It is insisted, however, that these provisions of the state law are repugnant to the statute of the United States relative to the location of lode claims, and therefore that the locators are not bound to observe them, and may acquire and have acquired a valid location by an observance of the United States regulations Only: All public lands in which-mineral deposits are found are declared by the federal statute to be open for occupation and purchase under regulations prescribed by law, and according to the local customs and rules of- miners in the several mining districts, so far as the same are applicable and are not inconsistent with the laws of the United States. Locators, so long as they comply with the laws of the United
One of the fundamental requisites is that- the. claim shall be distinctly marked on the ground, but how, the statute does not attempt, to define, the manner of the marking being left to the.regulations of the..state or the mining district in which the mine is located; and all reasonable regulations looking -to. that end are certainly within the compass of the federal law.. So with reference to the recording of the claim. The record must at least substantially accord with the. United States statutory requirements, but there is here left scope for state and district regulations, and a reasonable amount of development work may be required, so as to expose the lode, render
It follows that the judgment of the trial court must be affirmed, and it is so ordered. Affirmed.