
    BONANZA CONSOLIDATED MINING COMPANY et al., v. GOLDEN HEAD MINING COMPANY.
    No. 1612.
    (80 Pac. 436).
    1. Mines — Locations—Notices—Description.—Two recorded notices of mining locations 'each contained the name of the claim, the signature of the locator, the date of location and of record, ,and the county and mining district where located. One of them described 'the claim as commencing at discovery, and running 750 feet in a northeasterly direction and 750 feet in a southwesterly direction, “ Marking the exterior ends by lawful stakes 1, 2, 3, and 4, a claim 300 feet on each side of the center.” The other was described as commencing at discovery, and claiming 300 feet on each side of the center of the vein, together with all dips, spurs, angles, and variations, running in a southwesterly direction, and 750 feet in a northeasterly direction from discovery, “marked by lawful stakes on both ends and corners 1, 2, 3, and 4.” There was proof . that the descriptions and markings indicated in each case were true; that a stake and notice were posted at each discovery, and that a stake three or four inches in diameter and four to four and one- ■ half feet high was marked and set up in each comer, except that at one corner a stump was marked; and that surveys for patents were made, covering the ground practically as originally located and staked. Held, that such notices substantially complied with Revised Statutes U. S., section 2324 (TJ. S. Comp. St. 1901, p. 1426), requiring the locations to be distinctly marked on the ground so that their boundaries can be readily traced, and were not void for uncertainty of description.
    
      2. Same — Evidence.—The sufficiency of the location of a mining claim, with reference to natural objects or permanent ■monuments, is a mere question of fact.
    
    3. Same — Coneiicting Locations.- — Where, in a suit to quiet title to a mining claim, there was an issue as to a conflict between the B. bio. 2, and the M. claims, the record in a former suit between the owners of the B. No. 2 and the L. O. claim, the parties being in privity, in which it was held that the B. No. 2 was not a valid location because its discovery point was within the location of the L. C., was admissible, though not pleaded, for the purpose of showing that the B. No. 2 location was invalid.
    4. Same — Evidence—Bes Judicata. — The issues in the two suits with reference to the conflict in location not being the same, the former suit could not be relied on as*res judicata.
    Straup, J., dissenting.
    (Decided April 11, 1905).
    Appeal from District Court, Wasatch County; J. E. Booth, Judge.
    Suit by the Bonanza Consolidated Mining Company and others against the Golden Head Mining, Company. From a decree finding that neither plaintiffs nor defendant was entitled to the area embraced within certain mining claims, plaintiffs appeal.
    Appiemed.
    
      E. A. Walton and A. W. Casey for appellants.
    
      P. L. Williams for respondent.
    APPELLANT’S POINTS.
    The notices of location are indefinite and do not describe any ground, and do not tie to any natural monument or permanent object such as will indentify the claim.
    
      Such notices have uniformly, under sucb circumstances, been beld void for uncertainty.
    Section 2324, Revised Statutes of tbe United States requires all recorded notices to contain sucb a reference to a natural object or permanet object as will identify tbe claim. (.Drummond v. Long [Col.], 13 Pac. 543; Faxon v. Bernard, 4 Ped. 702; Mining Oo. v. Brahe [Col.], 9 Pac. 787; Barger v. Lesieur, 8 Utab 160; s. c., 9 Utab 192; 1 Lindley on Mines [2 Ed.], 355.)
    . Tbe pleadings of tbe defendant do not sbow in any way that it relied upon a former adjudication, and there are and always may be matters in avoidance of a decree, and it could not be expected that we would be prepared to meet sucb proof with matters in avoidance, not having been advised by proper pleadings.
    In equity tbe defense of former adjudication to bar a bearing on tbe merits must always be set up by proper aver-ments in tbe pleadings. (Galloway v. Hamilton, 1 Dana, 576; Lyon v. Tahnadge, 14 Johns 511; Ferguson v. Miller, 5 Ohio 460; Jourolman v. Massangall, 86 Tenn. 81.) The rule is tbe same under the Codes. (Gave v. Grafts, 53 Cal. 135; Bowe v. Milh Go., 44 Minn. 460.; Glenn v. Priest, 48 Eed. 19; Norris v. Amos, 15 Ind. 365; Hax v. Leis, 1 Col. 187.)
    Tbe admissions and declarations of an administrator or trustee, made in bis individual capacity, are not admissible to bind tbe estate be represents. (Waterman v. Wallace, Fed. Case No. 17261; Thompson v. Brahe, 32 Ala. ;9*9; Ghurch v. Howard, 79 N. Y. 415; Lee v. Bank, 78 N. W. 692.) Admissions of stockholders do not bind a corporation. (2 Cook on Corporations, 726, citing many cases.)
    Tbe acts necessary to constitute adverse possession have always been dependent upon tbe character of tbe ground, whether it was wild or cultivated, in a settled community or elsewhere, and upon tbe particular use which might be made of it. In a country where everybody’s land is inclosed by fences one naturally does not get title by adverse possession without an inclosure, and where land is used for such a purpose that it is used every day in the year, one’s possession must be evidenced by daily acts, but the only use to which one puts a mining, camp is to prospect the same and extract mineral therefrom, and this is often suspended during some parts of the year and the physical acts of possession relate generally to a small part of such claim, viz., the workings thereon, shafts, tunnels, etc. (Rev. Stat. Utah, 2862, 2863; 2 Lindley on Mines, 688; R. S. U. S., 2332; Altoona, etc., Mining Go. v. Mining Go., 114 Cal. 105; Belk 'v. Meagher, 104 U. S. 279, 287; Harris v. Equator Mining Go., 8 Red. 863.)
    RESPONDENT’S POINTS.
    Notwithstanding all that is said, and the cases and authorities cited by plaintiff, we insist that the great weight of authority and reason will support the sufficiency of the notices of location in this case, and in connection with the evidences of the staking of the ground, constituted good and valid locations of each of the claims located as the Medway and the Hillside, and that the finding and conclusion of the court below upon these points should be affirmed. The established rules of construction of the acts of parties in the initiation of rights upon the public mineral lands, as well as in the various steps taken by the miner to perfect his location, are to be regarded with indulgence, and the notices required invariably receive at the hands of the court a liberal construction.. See section 381, 1 Lindley on Mines (2 Ed.), where this doctrine is fully stated, and is supported by many citations of authorities, amongst others quoted from in the text by the author being the case of Wells v. Davis, 22 Utah 322. At section 373 the same author lays down the doctrine as to what is a sufficient marking under the Federal law, to which we invite the attention of the court. (North Noonday'Mining Go. v. Orient Mining Go., 1> Fed. Rep. 5,22; Jupiter Mining Go. v. Bodie Oons. Mining Co., 11 Fed. 666; Garter v. Bacigalupi, 83 Cal. 187; 
      ■Baton v. Noms, 131 Cal. -561; Brhardt v. Boaro) 113 TJ. S. 527; Hammer v. Gold'field Mining & Milling Go130 TJ. S. 291.)
    STATEMENT OE TACTS t
    This suit was brought to quiet title to four mining claims and to the conflict areas in the claims which are included within the exterior boundáries of two mining claims, the Medway and Hillside, for which the defendant had made application for patent. It appears from the evidence that the plaintiffs’ claims involved in the controversy are the Blackhawk No. 1 and Blackhawk No. 2, each of which was located on the 6th day of January, 1891; the Eclipse, located on the 1st day of January, 1889; and the Fraction, located on the 16th day of September, 1891. The defendants claims involved are the Medway and the Hillside mining claims, and each of them was located on the 7th day of January, 1888. The Eclipse mining claim covers substantially the same ground as the Hillside, and its discovery and initial point is within the limits of -the Hillside claim. The Blackhawk No. 2 covers nearly the whole of the Medway claim, and its discovery and initial point is within the boundaries of the Medway. The Blackhawk No. 1 conflicts partially with the Medway, and its discovery point is within the' exterior boundaries of the Last Chance mining claim, a claim that the evidence showed had been previously located and adjudicated to belong to Hugh Kilkenney, the predecessor in interest of the defendant. The Fraction mining claim conflicts with the Hillside. At the trial the court found the issues in favor of the defendant, as to the Medway mining claim, and found and held that both the Medway and Hillside claims had been properly located upon unoccupied mineral land, and their boundaries marked as re-, quired by law, but that the required work had not been done on the Hillside claim, and that, therefore, it had become forfeited to the United States; that the location of the Eclipse mining claim was illegal and void, because it was made within the exterior boundaries of the Hillside, before the forfeiture of that claim; and that neither one of the parties to this controversy is entitled to the area embraced within the boundaries of the Hillside and Eclipse mining claims. A decree was entered accordingly, and thereupon the plaintiffs prosecuted this appeal.
    
      
      
         Gold Mining Co. v. Gold & Copper Co., 20 Utah 363, 58 Pac. 832; Wells v. Davis, 22 Utah 322, 62 Pac. 3; Wilson v. Triumph Mining Co., 19 Utah 66, 56 Pac. 300, 75 Am. St. Rep. 718.
    
   BARTCH, C. J.,

after stating the facts, delivered the opinion of the court.

The principal and decisive question presented on this appeal is whether the notices of location of the Medway and Hillside mining claims, considering the supplementary proof, were properly admitted in evidence over the objection by the appellants of uncertainty of description. The notice of the Medway reads:

“Notice is hereby given that the undersigned having complied with the requirements of section 2324 of the Revised Statutes of the United States and the local laws, customs and regulations of this district, has located 1,500 feet in length by 600 feet in width on this the Medway lode, vein or deposit, bearing gold, silver and other precious metals, situated in Snake Creek Mining District, Wasatch county, Utah Territory, the location being described and marked on the ground as follow, to-wit:
“Commencing at discovery and running Y50 feet in a northeasterly direction, and 750 feet in a southwesterly direction and marking the exterior ends by lawful stakes 1, 2, 3, and 4, a claim 300 feet on each side of center of same. The nearest known claim is the Hillside. The mining claim above described shall be known as the Medway.
“Located this 7th day of January, 1888.
“Name of locator, Hugh Bhlkenney, 1,500 feet.
“Filed for record January 11, 1888, at 3 o’clock, p. m.
“JeeeMiah Roby, Recorder.”

The notice of the Hillside reads:

“Notice is hereby given that the undersigned, having complied with the requirements of section 2324 of the Revised Statutes of the United States and the local laws, customs arid regulations of this district, has located 1,500 feet in length by 600 feet in width on this Hillside lode, vein or deposit, bearing gold, silver and other precious metals, situated in the Snake Creek Mining District, Wasatch county, Utah Territory, the location being described and marked on the ground as follows, to-wit:
“Commencing at the discovery and claiming 300 feet on each side of the centre of the vein, together with all dips, spurs, angles and variations, running 750 feet in a southwesterly direction and 750 feet in a northeasterly direction from discovery and marked by laurful stakes on both ends and comers 1, 2, 3, and 4. The nearest known claim is the Wild Bill mine on the west. The mining claim above described shall be known as the Hillside mine.
“Located this 7th day of January, 1888.
“Name of locator, Hugh Kilkenney, 1,500 feet.
“Riled for record January 11, 1888, at 3 o’clock, p. m.
“Jeremiah Roby, Recorder.”

.The objections urged, to these notices are that they are indefinite, do not describe any ground, and do not tip the claims to any natural monument or permanent object; and that they do not comply with the requirements of section 2324, Revised Statutes, United States (U. S. Comp. St. 1901, p.- 1426), which provides that such locations “must be distinctly marked on the ground” so that their “boundaries can be readily traced,” and requires that all records of mining claims shall contain, among other things, “such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim.” We do not regard these objections as well founded. It will be observed that, while the notices are not artistically drawn, each one nevertheless shows a discovery made upon a vein or deposit bearing precious metals; the amount of ground claimed; the length of the claim, giving the distance in opposite directions from the discovery; that the claim was staked at both ends and at the corners in a lawful way; and refers to another claim as the one nearest to it. Each notice also contains the name of the claim, the signature of the locator, the date of location and of record, and the county and mining district where located. Then there is proof to show that the descriptions and marking of the boundaries indicated in each notice were true; that a stake and notice was posted up at each discovery, and that a stake three or four inches in diameter and four to four and a half feet high was marked and put up at each corner, except at the northeast corner of the Medway, where a stump was marked as the corner; that the stakes were driven into the ground at the respective corners and numbered as indicated in the notices; that they were reset from time to time and kept up; and that the surveys for patent were made covering the ground practically as originally located and staked. These notices, where the ground was actually marked as shown by the proof herein, although in some particulars indefinite and subject to criticism, were not calculated to mislead the public. Any prospector who appeared and read the notices could readily identify the ground embraced within the description. Such a notice -is a sufficient compliance with the statute, and when it substantially complies with the statute it is sufficient for record.

In the location of a mining claim the notice or “cértificate is not required to show the precise boundaries of the claim as marked on the ground, but it is sufficient if it contains directions, which, taken in connection with such boundaries, will enable a person of reasonable intelligence to find the claim and trace the lines.” (1 Lindley on Mines, sec. 381; Carter v. Bacigalupi, 83 Cal. 187, 23 Pac. 361.) Location notices of mining claims, being usually prepared by unlettered men, must not be held to technical accuracy, but must be construed with much liberality, else the main object of the law, which was not to wrest from the prospector the fruits resulting from honest toil and innumerable hardships, but to aid him in acquiring valuable rights in mining property, and to develop the mineral resources of the country, will be defeated. It is true the descriptions should bo as definite as the surrounding circumstances permit.

“With just how much accuracy the description of a mining claim, in reference to a natural object or permanent monument, must be stated in the notice of location, is not set forth in the statute; and where, as in this case, the location was evidently made in good faith, we are not disposed to hold the locator to a very strict compliance with the law in respect to his location notice. If, by any reasonable construction, in view of the surrounding circumstances, the language employed in the description will impart notice to subsequent locators, it is sufficient. Prospectors, as a rule, make no pretensions of scholarship or the art of composition, are neither surveyors nor lawyers; and if, in their notice of location, technical accuracy of expression were an absolute requirement, the object of the law, which doubtless is the encouragement and benefit of the miners, would in many cases be frustrated, and injustice would result, by the disturbing of possession after much hard labor performed and money in good faith expended. Therefore mere imperfections in the notice of location will not render it void. Courts have usually construed the statute respecting the location of mining claims with much liberality, and the sufficiency of the location, with reference to natural objects or permanent monuments, is simply a question of fact.” (Gold Mining Co. v. Gold & Copper Co., 20 Utah 363, 58 Pac. 832; 1 Lindley on Mines, sec. 355; Wells v. Davis, 22 Utah 322, 62 Pac. 3; Wilson v. Triumph Min. Co., 19 Utah 66, 56 Pac. 300, 75 Am. St. Rep. 718; North Noonday Min. Co. v. Orient Min. Co. [C. C.], 1 Fed. 522; Erhardt v. Boaro, 113 U. S. 52, 5 Sup. Ct. 560, 28 L. Ed. 1113.)

The circumstances and conditions of the surrounding country may be, and, doubtless, in many instances are, such that stakes driven firmly into the ground will afford the best means to identify the claim and the discovery. In such cases such identification will be considered as a sufficient compliance with the statute. As said by the Supreme Court of the United States in Hammer v. Garfield Min. Co., 130 U. S. 291, 9 Sup. Ct. 548, 32 L. Ed. 964:

. “There provisions, as appears on their face, are designed to secure a definite description — one so plain that the claim can be readily ascertained. A reference to some natural object or permanent monument is named for that purpose. Of course, the section means, when such reference can be made. Mining lode claims are frequently found where there are no permanent monuments or natural objects other than rocks or neighboring hills. Stakes driven into the ground are in such cases the most certain means of identification.” (Jupiter Min. Co. v. Bodie Con. Min. Co. [C. C.], 11 Fed. 666; Baton v. Norris, 131 Cal. 561, 63 Pac. 856.)

We are of the opinion that the notices in question, under the circumstances, were sufficiently definite to comply with the law, and were properly admitted in evidence. Nor do we think the court erred in admitting in evidence, against the objection that it was not pleaded, the decree in favor of Kilkenny and against the plaintiff in a former action, which decree adjudged Kilkenny to be the owner of the Last Chance mining claim, which embraced within its exterior boundaries the discovery point of Blackhawk No. 2 claim. There is no doubt that, where a party to an action in equity relies upon a former adjudication as a bar to an action, such adjudication, to be of avail, must be pleaded; but that doctrine has no application here. In this case the controversy is over the conflict of the Blackhawk No. 2 with, the Medway claim, and this conflict was not involved in the former litigation. There only such portion of the Blackhawk No. 2 was involved as conflicted with the Last Chance claim, and that conflict was adjudicated in that case; and the Last Chance, which included within its boundaries the discovery point of the Blackhawk No. 2, was decreed to belong to Kilkenny. In this action a prior location of a valid claim, Blackhawk No. 2, was alleged by the plaintiffs. This was denied by the defendant, and its claim that the Medway was a valid location was set up and relied upon. Upon this issue thus raised the right to the conflict area was to be determined. The defendant, to maintain its position, had a right to resort to any legal proof which would show that the Blackhawk No. 2 was not a valid location, and hence could show by such proof that the discovery point of that claim was adjudicated to be within the boundaries of another prior, existing valid location or claim. For such purpose the judgment in question was admissible, because it constituted legal proof of the fact that the entire location of the Blackhawk Np. 2 claim, including that portion in conflict with the Medway claim, is invalid. It was a judgment in a suit where the opposing party herein was party plaintiff, and where the party defendant herein was in privity with the party defendant therein, and constituted merely proof that a certain mineral location was void. The decree was not, and could not, without proper plea, be offered for the purpose of showing that the matter in issue herein was res judicata. Nor could it be relied upon as res judicata of this controversy. In Glenn v. Priest (C. C,), 48 Fed. 19, Mr. Justice Thayer, referring to a Missouri case, where it was held that judgment might be offered in a subsequent case as evidence of a fact, though not pleaded, said:

“It will also be observed from a careful examina-; tion of the case in question that, as the issues were made up, the judgment in all probability was properly admissible in evidence, even if it had been objected to, because it tended to contradict material facts stated in the petition. My conclusion is that under the Missouri Code a judgment must be specially pleaded before it can be admitted in evidence, when tbe purpose of offering it is merely to show that the matter in issue is res judicata.. If a judgment in a former suit between the parties tends to disprove material facts stated by the plaintiff in his petition, a different rule obtains.” (Garton v. Botts, 73 Mo. 274; Krekeler v. Ritter, 62 N. Y. 372.)

Nor do we think the court erred in holding that the appellants are not entitled to the Eclipse mining claim. The findings and decree as to that claim as well as to the others appear to be supported by competent proof.

The remaining questions presented, but not herein discussed, we have carefully examined, and found no reversible error.

The judgment of the court is affirmed, with eosts.

McCARTY, J., concurs.

STRAUP, J.

(dissenting).

I am unable to concur in the opinion announced by the Chief Justice in this case. I am clearly of the opinion that by an affirmance of the judgment this court will hold for naught the plain provisions of the statute, the basic reasons for rules and statutes requiring a record of mining claims, and every authority to which our attention has been called. Appellants claim that respondent’s location notices as recorded are void for uncertainty of description, and our attention is called to that particular provision of section 2324,. Revised Statutes, United States (U. S. Comp. St. 1901, p. 1426)., which provides:

“All records of mining claims hereafter made shall contain the name or names of locators, the date of the location, and such a description of the claim or claims located by reference to some nat ural object or permanent monument as will identify the claim.”

It was made to appear by tbe -stipulation of tbe parties that at tbe time of respondent’s locations tbe district rules required a record to be made. Tbe United States statutes did not require, and never bave required, tbe recording of claims. By local rules and state and territorial legislation recording bas often been required, and tbe authorities are uniform that tbe requirements of tbe United States statute as to tbe contents of a recorded notice or certificate only apply wben a record is required by tbe local law.

“Tbe mining laws of Congress do not require any notice or certificate of location to be recorded. If a notice is required by either state law or local rules to be recorded, it must contain all tbe requisites prescribed by section 2324 of tbe Revised Statutes.”
(1 Bindley on Mines, 275.)

Tbe purpose of tbe record of a mining claim is, libe all records of written instruments relating to title, to affect all persons subsequently dealing with tbe same subject with constructive notice of tbe facts disclosed by tbe record. (Bindley on Mines, 392.) Tbe record only imparts constructive notice of those facts which could be ascertained by an examination of tbe record, and those as to which it reasonably suggests an inquiry, and which would be disclosed by such inquiry.

“The constructive notice which flows exclusively from tbe record cannot be more extensive than tbe facts stated therein, and must be understood to be only such notice as could have been obtained from an actual inspection of tbe record.” (24 A. & E. Eney. Baw [2d Ed.], 151.

It bas therefore always been held that a description in a record which does not in and of itself identify tbe subject-matter, or point out and suggest means of identification, is void for uncertainty. And this follows as a matter of course, for it is unreasonable to say that a person should be bound by a record to take notice of some fact not appearing in or indicated by such record. (Wade on Notice, 174-176.)

Another and intimately connected purpose of requiring a record and a certainty of description therein is to prevent parties from attempting to make a description intended for one thing apply to another thing more or less similar in general character, and especially, in regard to mining claims, to prevent floating or swinging of claims so as to cover other and different ground from that originally located. (Darger v. Le Sieur, 8 Utah 160, 30 Pac. 363; oh rehearing, 9 Utah 192, 33 Pac. 701; Gleeson v. Min. Co., 13 Nev. 465.) In the latter case the court says:

“There can be no question that the original Paymaster notice was all that the law required. The only.objection to it is that it did not contain in itself a description of the claim by reference to some natural object or permanent monument. It was not necessary that it should. It is only the record of the claim that is required to contain such a description, and there are* excellent reasons for making a distinction between the notice and record in this particular. The record, if it consisted of the mere copy of the notice, would not identify the claim, and there would be an opportunity, as well as a temptation to the locators, upon the discovery of a more valuable mine in the vicinity, to prove by perjured witnesses that their notices were posted on that mine. The floating of claims was by no means an infrequent occurrence prior to the act of 1872. And if such attempts were seldom successful, they were always vexatious, and often the means of levying a heavy blackmail. It was on this account that the record (not the notice) was required to contain ‘such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim.5 55

This case was cited and followed in Gird v. California Oil Co. (C. C.), 60 Ned. 531. Whatever conflict appears to exist in the authorities as to the contests of location notices is accounted for by the fact that a reference to a natural object or permanent monument is only necessary where the local law Or rule requires a record, and such of the cases that hold location notices without such reference admissible have arisen where the local law did not require a record to be made. Mr. Iindley says, in section 355, vol. 1:

“A notice might serve the purpose of a notice of discovery, manifesting an intention to locate, and be wholly insufficient as a notice of perfected location which is to be recorded.” “In the absence of a state statute or local rule requiring it, the posted notice need not contain any reference to natural objects or permanent monuments, but the record notice must contain such description.”

In the same volume, in section 379, he says:

“In the absence of a state law or local rule requiring a record to be made, Congress has not. undertaken to prescribe the nature of the notices which a miner may be compelled by such law or rules to post, or which he may see fit to post on his own motion. It is only when such notice, or its equivalent, is required to be recorded, that the provision of the federal law becomes mandatory.”

I think the Chief Justice, in his opinion, has overlooked the object and purpose of a record and the principles of law applying thereto, and has likewise rejected the plain distinction herein pointed out between the two classes of adjudged •cases (which distinction at once removes all apparent conflict in the cases), and has thereby fallen into the following errors: (1) In his assumption that the discovery of mineral in place (which is one requisite of a valid location) or the marking of the boundaries (which is another requisite of a valid location) has anything to do with or can cure a defect in a recorded description of tbe claim (which is still another requisite to a valid location where a record is required to he! made). (2) In his assumption that if certain things, such as name of locator, date of location, etc., which the law requires to appear, be contained in the recorded notice, another thing (the description) may therefore be omitted, or its defects cured by their presence. (3) In his assumption that the want of description could be cured by. proof showing that the claims were located at the place where they are now claimed to be. (4) In his assumption that the words “lawful stakes” are descriptive, and that the term “lawful” is description of a stake, and that it identifies or’ tends to differentiate one stake from another.

Taking the propositions up in their order, it appears that the law requires several independent things to be done. Among them, a record made; which record must contain an identifying description of the claim, so that from a reading of the record one would be led therefrom to know the particular part of the district where the claim was laid. Whether the locator has found mineral in place, or whether he has. staked the claim, or whether he used lawful or unlawful stakes, or whether he kept them up from to time, or whether the date of the location appears, or the name of the locator is in the notice, are all immaterial as to what the record should contain by way of description with reference to a natural object or permanent monument. So at some subsequent time the fact that some one swears that one of the stakes was a stump, or that the claims are in the place a party might want them to he, is alike unaiding to the uncertain description in the record. What information would a prospector or other person get from the record of the notices in this case as to where in the district the claims are situated? From the record of the Hillside notice one discovers that the claim is laid in Snake Creelr mining district, Wasatch county, and that the “nearest known claim is the Wild Bill mine on the west.” That is all the reference to any natural object or permanent monument: Does this identify the claim? Does it show in what part of the district the, claim may be found ? Clearly not. But it is claimed that the 'claim is laid in a certain direction, and has lawful stakes at each end. Still one is as much in the dark as ever as to what part of the district the claim is in. Clearly, the record does not show the locus with reasonable or any certainty. Neither does the record suggest any inquiry, which, if made, will lead to identification. If it gave the distance from the Wild Bill mine, the claim might be found and identified; but it does not give the distance, and so one distance will fit as well as any other; hence the uncertainty. Neither do the words “marked by lawful stakes” either identify the ground or suggest any means of identification. Inasmuch as no particular kind of stakes, or any stakes at all, are required by any law, the word “lawful” has no meaning in this connection, and is hot descriptive of anything. “Lawful” means according to or provided by law.

I am unable to understand what the Chief Justice means when he says “that the claim was staked at both ends at the corners in a lawful way.” As one stake is as lawful as any other, the stakes referred to in the record afford and suggest no information of, or means of ascertaining, the whereabouts or locality of the claim. In the prevailing opinion it is said, “Any prospector who appeared and read the notice could readily identify the ground.” Herein the majority court are assuming that the prospector first came upm the ground, and then saw and read the posted notices. ' But that is not the' question before us. If subsequent locators are to be bound by whatever may have been posted on the ground at some prior time, then there is no occasion or necessity to require a record to be made, or that such record should contain any description whatever. The question is, and the authorities all hold one way upon it: Can the claim be found from the description as recorded? Not, of course, the exact or precise boundaries, but the place where one would find markings of the claim by which he could trace its boundaries. This is what Mr. Bindley says at section 381 of his work on Mines, cited and quoted from in the majority opinion. Suppose that on every square mile in the Snake Creek mining district Mr. Kilkenny- had discovered mineral, and staked and marked a pair of claims exactly as it is claimed be staked and marked tbe two in question bere. Tbe notice could be applied to one group of tbe claims as well as any other. There is therefore no certainty in these descriptions; and to bold them sufficient is to permit a description to be wholly made and created by parol evidence, and when so made to be binding on third parties — a result not sanctioned by any authority, and manifestly at variance with every principle of law. To affect third parties, a description in the record “must direct the mind to evidence whereby the precise thing may be ascertained, and, if thereby absolute certainty may be attained, the instrument is valid; otherwise it is void for uncertainty.” (Ormsby v. Nolan, 69 Iowa 130, 28 N. W. 569; Tatum v. Croom, 60 Ark. 487, 30 S. W. 885; Tindall v. Wasson, 74 Ind. 495.) Third persons are not affected with constructive notice by a record of an instrument affecting real estate where the property is not identified by the description. (Davis v. Ward, 109 Cal. 186, 41 Pac. 1010, 50 Am. St. Rep. 29.) The case of Carter v. Bacigalupi, 83 Cal. 187, 23 Pac. 361, cited by the Chief Justice, does not support the conclusion that if a notice is sufficient for a posted notice it is sufficient for record. In the first place, no law of the United States, territory of Utah, or the Snake Creek mining district required any kind of notice to be posted, and so to say that the notices in the case at bar comply with the statute, and that when they sufficiently comply with the statute they are sufficient for record, is to imply something quite contrary to the facts. In the Garter case the district rules required a posted notice and a record thereof, and “the language of the statute was repeated in section 3 of the local rules,” and, of course, if a notice as posted was sufficient under such rules it would be sufficient for record. “Hence,” the court says, “it must be held that under these rules, if the notice as posted is sufficient, it' is sufficient as recorded. This is not necessarily the case in all districts. In some no notice is required to be posted, and it may be that in others less is required for the posting than for the recording.” Commenting on this case, Mr. Lindley says:

“This must not be understood as sanctioning a rule that the record of a posted notice is sufficient where such posted notice does not contain the facts required by section 2324, Kevised Statutes, United States, providing for the contents of the record. Neither a local rule nor a state statute can dispense with the plain requirement of the federal law.” (1 Lindley on Mines, 355.)

It may be well to note, too, that the notice in the Garter Case refers to tying by direction and distance to Turnback creek, which the court correctly held to be a natural monument. It is-true that the claimant is entitled to a liberal construction of his description, but here there is no description to construe. It cannot be said that where a purported description will apply equally as well to any area 600 feet wide by 1,500 feet long there is a substantial compliance with the statute. No case has been cited to such a proposition. .

It may be well to further call attention briefly to the cases upon which the opinion of the majority court is supposed to rest. In Mining Co. v. Mining Co., 20 Utah 363, 58 Pac. 832, 77 Am. St. Rep. 913, the reference to a natural object and permanent monument was as follows: “Situated about one mile and a half eastward from the depot under a large cliff of rock.” Of -course, this is a good reference, and one reading the record would be put upon inquiry respecting the depot and the cliff, and could at once know the approximate location of the claim, and such a description could be applied to a particular locality, and would not apply anywhere else. The proof, too, in that case, as to there being only one depot in the district, was proper to complete the description, and was not received to make a description. In Wells v. Davis, 22 Utah 322, 62 Pac. 3, the description held sufficiently definite contained a reference to natural objects and permanent monuments as follows: The one claim, “situated on the southwest side of Car Fork about 150 feet above the Levant lode between Log and Car Forks about 300 feet from the

creek/’ etc.; tbe other claim, “situated between Muddy and Log Fork gulches under a certain prominent reef of rocks and about 250 or 300 feet southwesterly from the southwesterly end of Bonham Lode survey.” In Wilson v. Triumph Min. Co., 19 Utah 66, 56 Pac. 300, 75 Am. St. Rep. 718, the certificate of location objected to and held sufficient contained this reference: “Located on the east side of the Mormon Chief mine and southeast of the Elmer Bay mine.” The court very properly held that “when a notice of location is recorded it must contain such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim,” and that such references were sufficient to show the locality of the claim. That case, as held by the unanimous court, does not conflict with Garger v. Le Sieur, 8 Utah 160, 30 Pac. 363, and supports here appellant’s contention. North Noonday Co. v. Orient Min. Co. (C. C.), 1 Fed. 522, declares unequivocally that no description is necessary except the local law requires a record, and does not attempt to say that a. description of a claim by reference to its own markings is good. The recorded notice there tied the claim to Silver Hill and the Noonday shaft, two permanent objects, and the court, after so stating to the jury, said: “It is for the jury to determine whether a miner seeking information from the record could go to the permanent object, the Noonday shaft on Silver Hill, and thence east, and find the stake and notice pointing out the location on the ground with reasonable certainty.” Judge Sawyer, as all courts heretofore have, recognized the necessity in the recorded notice that there be an initial point given, some permanent object, from which the general locality of the claim is fixed and determined. Erhardt v. Boara, 113 U. S. 527, 5 Sup. Ct. 560, 28 L. Ed. 1113, was a case involving the sufficiency of the posted notice as a preliminary notice only. The court, per Field, J., said: “To that extent, as a notice of discovery and original location, it is sufficient.” He then goes on to say that a proper certificate containing a description of the claim by reference to a natural object or permanent monument, etc., did not need to be recorded for ninety days after tbe discovery. In Hammer v. Garfield Min. Co., 130 U. S. 291, 9 Sup. Ct. 548, 32 L. Ed. 964, tbe claim was described by metes and bounds referring to stakes A, B, C, and D at eacb corner of tbe claim, and tbe locus of tbe claim itself described as being “about 1,500 feet south of Bangham’s Little Jennie mine,” etc.; as tbe court says, “probably tbe best known and most easily, defined object in tbe vicinity.” In Jupiter Min. Co. v. Bodie Min Co. (C. C.), 11 Fed. 666, tbe contents of tbe location certificate do not appear. Tbe court, charging tbe jury, said that tbe permanent monument might consist of a prominent post or stake firmly planted in tbe ground, and that tbe natural object or permanent monument might be on tbe ground located or elsewhere, and that, if the local rules required a record, it must contain such a reference to some natural or permanent monument as would identify tbe claim. In its language that case goes farther towards supporting respondent than any other authority. But respondent’s notices do not pretend to refer to even a prominent post or stake firmly planted in tbe ground. In Eaton v. Norris, 131 Cal. 561, 63 Pac. 856, tbe question of a reference to a natural object or permanent monument was not involved, for tbe reason, as tbe court says, there were no local rules or law requiring a record to be made. Tbe court there held that tbe stakes driven in tbe ground at tbe four corners of tbe claim were a sufficient marlcing of the claim upon the ground — a requirement entirely distinct from tbe requirement as to the contents of the record.

Tbe prevailing opinion is squarely in conflict with Darger v. Le Sieur, 8 Utah 160, 30 Pac. 363 (rehearing denied 9 Utah 192, 33 Pac. 701, by tbe full bench, tbe present chief justice concurring), and' tbe three cases next following, approved and cited therein. In Faxon v. Barnard (C. C.), 4 Fed. 702, tbe claim was described as “situated in tbe north side of Iowa Gulch about timber line on tbe west side of Bald Mountain. Such claini is stalled and marked as tbe law directs.” Judge Hallett said: “It is utterly impossible to find in this language any reference to a natural object or permanent monument defining tbe location.” In Drummond v. Long (Colo. Sup.), 13 Pac. 543, the court says, referring to section 2324, Revised Statutes, United States, (U. S. Comp. St. 1901, p. 1426):

“The intention of the provision is to give one seeking the locus of a recorded claim something in the nature of an initial point, and, following the course and distance given, find with reasonable certainty the claim located.”

In Gilpin Min. Co. v. Drake (Colo. Sup.), 9 Pac. 787, the court says, “One of the important requisites of the same section is that such a description of the claim be given in the location certificate by reference to some natural object or permanent monument as will identify the claim,” and then proceeds to hold a notice insufficient for want of a definite reference.

I also think the court erred in permitting the witness Gor-linski to detail a conversation between himself and A. Y. Taylor. It was hearsay and incompetent. Taylor was not personally a party to the action, and his admissions di'd not bind the estate he represents. (Lee v. Bank (Iowa), 78 N. W. 692; Church v. Howard, 79 N. Y. 415.) Neither would the fact that he was a stockholder of plaintiff corporation render the evidence competent. (2 Cook, Cor., 726.)

The court also erred in excluding evidence that the Hillside ground was not open to location when located as the Hillside because having been located as the Little Lee in January, 1887. The point was directly so decided in Harrington v. Chambers, 3 Utah 94, 1 Pac. 362. The court should have, at all events, decreed to plaintiff the Eclipse ground. Plaintiff had been in possession of the claim continuously working the claim for more than the statutory period. (Rev. St. U. S. 2332 [U. S. Comp. St. 1901, p. 1433] ; Belk v. Meagher, 104 U. S. 279-287, 26 L. Ed. 735; Lavagnimo v. Uhlig, 26 Utah 1, 71 Pac. 1046, 99 Am. St. Hep. 808.)

Eor these reasons I do not agree with the majority of the court, but am of the opinion that the judgment of the court below should be reversed.  