Page:Federal Reporter, 1st Series, Volume 4.djvu/717

 riXON V, BABKABD. 703 �m Jnly of the same yeaf. Defendants daim the Green Mountain Iode as having been discovered by Benjamin Bar- nard in Augnst, 1877, and the location completed by filing for record a certificate of location in March, 1878. These are rival locations, overlapping eaeh other at the north end of the first and the south end of the second to the estent of 2 17-100 acres, •which is the ground in controversy in this suit. A question common to both claims is whether a certificate of location muet be filed of record in the office of the recorder of the county in which the claim may be, within three montha next after the diseovery of the Iode, as required by the act of assembly of 1874. Eev. St. 629. In terms, the act requires the certificate to be filed within that tîme ; and, to secure the claim from the date of diseovery against intervening claimants seeking to looate the same ground, it would seem to be necessary to comply with its provisions. But no reason is perceived for saying that the certificate shall be invalid if not filed within the time fixed by law. The design of the law clearly is to give the discoverer time for doing the acts nec- essary to a proper location. He may sink his diseovery shaft ■within 60 days ; he may put up his diseovery notice, and his boundary stakes, and record his certificate of location within three months ; failing in this he shall have no right as against one -who has been more diligent in fulfilling the statute, although later in point of time. But when ail things have been done as the act requires, before any other and better right to the same ground has been perfected, it seems to be just and entirely consistent with the statute to recognize the location as having been properly made. �Applying this rule in the present case, and accepting the averments of the parties respecting their locations as true, we find that, although each overstepped the statute, they may have precedence according to the dates of diseovery. Begin- ing in February, 1878, plaintiff's grantors completed their location in July of that year. It is indeed stated in some affidavits in support of the bill that the Ontario Iode was «^acovered in the autumn of 1877. But we cannot allow the plaintiff to go aside from or beyond the allegations of his ����