Page:Federal Reporter, 1st Series, Volume 1.djvu/544

 636 FEDKRAL REPORTER. �Btakes from time to time, as they were removed, until the ■work was commenced at the combination shaft, which bas ever since been continuoua to the present time ; and it is claimed that if there was at the time of the location any defect in the marking on the ground, this additional marking, before any rights were acquired by the defendant, was cleaiiy suffieient to validate these claims. In regard to this point, I instruct you, gentlemen, that a subsequent locator cannot object that a prior location of a mining claim was not sufficiently marked on the ground at the time of its location, provided sueh prior location was sufficiently marked on the ground before such subsequent locator made any location or acquired any rights in such claim. �The testimony tends to show, and there is none to the con- trary, that Smith did no work on the North Noonday within the year after he located it, in 1875, and supposing he had forfeited his claim he procured Lockberg to relocate it for him, and convey it, on December 16, 1876; that Lockberg did so relocate it on that day and immediately conveyed it to Smith, who then, either alone, or in connection with others interested with him, entered upon the claim and did sufScient work during the year to hold it for that year; and that Smith paid the recording fees, $16. �If these be the facts, and no other rights had in the meantime attached — and there is no evidence that any had attached — then, if the location made by Lockberg was other- wise suffieient and legal, and Lockberg and Smith were Amer- ican citizens, Smith, by the several proceedings, had acquired a valid right to the claim. �The statute requires $100 in value of work to be done on each claim located after May 10, 1872, in each year, in order to hold it; and, in default of such work being done, author- izes the claim to be relocated by other parties, provided the first locator bas not resumed work upon it. But if the first locator resumes work at any time after the expiration of the year, before other rights attach in favor of relocators, ha preserves his claim. �The statute nowhere authorizies a person to trespass upon ��� �