Daily inter mountain., 1900-12-21
PRICE FIVE CENTS

such requirements would be held uncon-
stitutional
The requirements of the Montana law
in regard to the location and record of
mining claims if carefully compiled with.
result IN very complete marking of the
location on The ground and record of the
location 50 marked. The authors of this
law PROBABLY thought that they We're re-
qulrlng nothing unnecessary or unde-
sirable. This may be true Vet taking the
law in connection with the Interpretation
Whlch our supreme court has put upon
1T, and you have a combination which it
is very difficult for the ordinary prospec-
tor to meet For instance the law re-
cures that the deciaratory statement
shall contain % the location and (2)
description of each corner (3) the mark
! ings thereon. The supreme court has
nerd IN the case of Purdum VS.. Laddin %
Mont, 3s1 that this requirement of the
law is mandatory, and must be complied
with to constitute a valid location. A To-
Gator may make a valuable discovery
marx 1t upon the ground so that it's
boundaries are apparent to everyone, ex-
pend time and money In it's develop-
ment, yet if his recorded declara tory
statement fails to describe some corner
or give the markings, all else tnat he has
done avails him nothing. His claim may
be relocated by another person and if he
contests the matter in the courts, he will
be unable to get his defective record in
evidence.
1t seems to me that tho legislature
might easily remedy this injustice of the
present law. Ordinarily the purpose of
recording an instrument is that the pub
lic may have constructive notice of it's
contents. For instance if a mortgage is
given upon piece If real estate, and is
properly recorded no subsequent pur-
chaser or 1ncumbrancer con be heard to
say that he didn't know the property
was mortgaged. But even where tha
property is not recorded, if The subse-
quent purchaser or ncumbrancar has ac-
tual knowledge of it's existence, he can.
not take advantage of the failure of the
| mortgage to record. The courts say that
actual notice is equivalent to .he con.
structive notice which the record fur.
nishes.
1t seems reasonable that the purpose OF
requiring mining claim to be recorded
ia to give the public constructive notice
! of it's existence and of its whereabouts
But if the man who jumps the claim had
actual knowledge of the olaim,, what
| justice is there in allowing him to take
| advantage of a defective record? Before
| he should be allowed to set up the de-
| ficiencies of his opponents declaratory
! statement, he should be made to show
| that he has been misled thereby to his
own injury.
The marking of boundaries and the
| declaratory statement required by the
| Montana law are not fuller marking or
more complete record than the careful
locator should desire. but it sGeems to me
| that the law would be fairer if pro-
viso We're added to the effect that no de-
| feet in the marking of boundaries or in
| the declaratory statement of a claim
| shall invalidate the claim where the
markings and record are sufficient to re-
veal to a person of ordinary intelligence
! the location and boundaries of the claim,
and that no person having ~ tual knowl-
| edge of a location shall be allowed to
! take advantage of a defecti.-a record.