locators. We have there shown that the supreme court of Montana at first doubted the validity of the provision, but afterwards upheld it. The supreme court of Idaho. has reached the same conclusion.1 Where the law makes notices of this character prima facie evidence of the facts therein recited, it would seem that the formality of an oath is not an unreasonable requirement. In many states instruments affecting title to real property are required to be verified before they are entitled to record, and all states require some form of acknowledgment to such class of documents. We do not see, upon principle, why the law, as found in Montana and Idaho, should not be upheld.

ARTICLE IX. THE RECORD.

§ 389. Time and place of record.

§ 390. Effect of failure to record within the time limited.

$ 391. Proof of record.

§ 392. The record as evidence.

389. Time and place of record. As heretofore frequently indicated,2 in the absence of a state law or local rule requiring it, there is no necessity for recording any notice or certificate in connection with the acquisition of title to public mineral lands by location.

3

But as observed in a preceding section, the popular notion is, that notices of location should be recorded somewhere, and although in the absence of a law or rule so declaring, a failure to record is not accompanied with any loss of right, yet the universal rule is to file the notice of location with the county officer charged by the state or territorial laws with the duty of registering instruments affecting title to real estate. In the absence

1 Van Buren v. McKinley (Idaho), 66 Pac. 936.
Ante, §§ 273, 328.

3 Ante, § 273.

Bramlett v. Flick, 23 Mont. 95, 57 Pac. 869.

of a statute a county recorder cannot be compelled to record. But if he chooses to do so, he does it not as county recorder elected by the people, but as a person selected by the miners to do an act not provided for by the recordation laws of the state.1

Where the law or regulation requires a record to be made, but does not specify the time within which it is to be effected, we think a reasonable time should be allowed, following the rule heretofore announced as to the time of performance of other acts of location.2 What constitutes a reasonable time depends upon the circumstances surrounding each particular case, such as the distance from the discovered mine to the place of record, and the means of communication between the two points. For the most part, the states and territories wherein laws exist requiring a record to be made provide for the time within which the notice or certificate is to be lodged with the recording officer. Colorado,3 allows three months; North Dakota, South Dakota, and Wyoming, sixty days; Washington, ninety days, computed from date of discovery; Idaho, and Arizona, ninety days from date of location; Montana 10 and Oregon,11 sixty days; Nevada,12 ninety days; New Mex

6

7

8

'San Bernardino Co. v. Davidson, 112 Cal. 503, 44 Pac. 659. See Kern County v. Lee, 129 Cal. 361, 61 Pac. 1124.

2 Ante, § 339.

Mills' Annot. Stats., § 3150.

Rev. Code of 1895, § 1428; Id. 1899, § 1428.

Comp. Laws of Dak. 1887, §§ 1999, 2000. Adopted by S. Dak.—

Laws of 1890, § 1; Grantham's Annot. Stats. S. Dak. (1899), § 2658, as amended-Laws of 1899, p. 146.

8 Laws of 1895, p. 25, § 4; Civil Code (1901), § 2559.

Rev. Stats. (1901), § 3234; Jordan v. Duke (Ariz.), 53 Pac. 197.

10 Rev. Code of 1895, § 3612, as amended-Laws of 1901, p. 141, § 2. 11 Laws of 1898, p. 16, as amended-Laws of 1901, p. 140.

12 Comp. Laws (1900), § 210.

2

ico,' three months, and Utah, thirty days, from posting the preliminary, notice referred to in a preceding article.3

Nevada provides for recording with the district recorder and the county recorder.*

In Utah, if there is a mining district recorder, the original and a duplicate must be filed with him, and it is made his duty to transmit the duplicate to the county recorder for record. If there is no mining district recorder, the record must be made directly with the county recorder."

In California, it was customary, before the passage of the act of March, 1897, to record in the county recorder's office, as well as with the district recorder, if there was one. In the absence of a written district rule, a custom as to place of record might be shown. But such custom, to be binding, ought to be so well known, understood, and recognized in the district, that locators should have no reasonable ground for doubt as to what was required as to place of record.

In 1897 an act was passed, however, regulating the subject of recording and prohibiting district records. The act has now been repealed,' and there is consequently no inhibition of a return to the custom.

Arkansas, authorizes recording with the ex-officio recorder of the county, but does not make recording imperative or fix any limit of time in which the record shall be made.

'Comp. Laws of 1884, § 1566; Id. 1897, § 2286.

Laws of 1899, p. 26, § 4.

3 Ante, §§ 350-353.

4 Comp. Laws (1900), § 210.

5 Laws of 1899, p. 26, §§ 4, 9.

Ante, § 273.

Stats. 1899, p. 148; County of Kern v. Lee, 129 Cal. 361, 61 Pac. 1124; Stats. 1900, p. 9.

8 Act of 1899, p. 113, §§ 1, 2, 3.

390. Effect of failure to record within the time limited. The mere failure to record a notice, certificate, or declaratory statement within the statutory time does not render the location of the claim invalid, where there are no intervening rights before the record is properly made, if there has been full compliance with the law in all other respects.1

3

This is but the reiteration of a principle announced in a previous section,2 that the failure to comply with any of the requirements of the law within the time limited may subject the ground to relocation; that the locator delays the performance of these acts at his peril; but if he complies with the law prior to the acquisition of any right by a subsequent locator, no one has a right to complain. The claim may not be relocated until after the time to record has expired; and if the first locator does all the other acts with intent to locate, but fails to record within the time limited, he gets a good title, notwithstanding a subsequent locator performs all the acts of location, including recording, prior to the time in which the first locator should have recorded. The acts when completed will relate back to the inception of the right. If the certificate is deposited with the recorder to be recorded, that is sufficient. His failure to record will not injure the locator."

Where the requirement as to recording is fixed by

1Preston v. Hunter, 67 Fed. 996, 999; Faxon v. Barnard, 4 Fed. 702, 703; Strepey v. Stark, 7 Colo. 614, 5 Pac. 111; Craig v. Thompson, 10 Colo. 517, 16 Pac. 24. See, also, Lockhart v. Leeds (N. Mex.), 63 Pac. 51.

Ante, § 330.

Lockhart v. Wills, 9 N. Mex. 344, 54 Pac. 336.

Lockhart v. Leeds (N. Mex.), 63 Pac. 51, S. C. sub nom. Lockhart v. Johnson, 181 U. S. 518, 21 Sup. Ct. Rep. 665. See, also, Belk v. Meagher, 104 U. S. 279.

Bramlett v. Flick, 23 Mont. 95, 57 Pac. 869. Murphy, 26 Colo. 350, 58 Pac. 588.

Shepard v. Murphy, 26 Colo. 350, 58 Pac. 588.

See, also, Shepard v.

local rule, the failure to record, in our opinion, will not work forfeiture unless the rule itself so provides.

This is the view adopted by the supreme courts of California and Arizona. The contrary rule is applied by the courts in Montana and Nevada.1

391. Proof of record.-Where a state law or local rule requires the certificate to be recorded with a county officer whose duties are defined by statute, such as recorder, clerk, or register of deeds, the record will prove itself, and, as a rule, certified copies thereof are admissible in evidence with like effect as the original. But in case of records in the mining district, the rule is different. Such records do not prove themselves. They must be produced by the proper officer, whose official character must be shown, and the authenticity of such records must be established.2 Certified copies of such records cannot be admitted in evidence, unless it be first shown that their custodian was empowered under the local rules to give and authenticate such copies.3

392. The record as evidence.-Constructive notice by recording is wholly a creature of the statute. A record not provided for by statute or recognized by law gives no notice. Therefore, before a record of a mining location can be introduced in evidence for any purpose, it must appear that it is authorized by law; otherwise, it is irrelevant and inadmissible.*

Where such record is authorized, it is prima facie evidence only of such facts as are required by law to be 'Ante, § 274.

Roberts v. Wilson, 1 Utah, 292.

Harvey v. Ryan, 42 Cal. 626; Roberts v. Wilson, 1 Utah, 292; ante, § 272. See, also, Attwood v. Fricot, 17 Cal. 37,,76 Am. Dec. 567.

Moxon v. Wilkinson, 2 Mont. 421; Golden Fleece M. Co. v. Cable Cons. M. Co., 12 Nev. 312; Chamberlain v. Bell, 7 Cal. 292, 68 Am. Dec. 260; Mesick v. Sunderland, 6 Cal. 298, 315; 1 Wharton on Evidence, 3d ed., § 643.