ON PETITION FOR REHEARING.
SULLIVAN, C. J.A petition for rehearing has been filed’ in this matter, whereby it is contended that the rule laid down in this case is in conflict with the rule laid down in the case of Nicholls v. Lewis & Clark Min. Co., ante, p. 224, 109 Pac. 846, decided at this term.
After a careful examination of both opinions, we are unable; to find any conflict between the rules laid down therein.. *281Counsel for appellant also contends that the rule laid down in subdivisions 4, 7 and 8 of the syllabus is not the rule that should obtain in this state, and if it is the established rule, it will lead to many conflicts and disturbances among mineral claimants, and that it would be unjust to require a locator of a mining claim, when informed by another mineral claimant that his claim is excessive, to then and there relinquish the excess; that such a rule would be unfair to the excessive claimant. Counsel thus contends, in effect, that it should be left to the discretion of the one who claims "an excessive area of surface ground in his mining claim when he should relinquish the excess.
We cannot agree with that contention. Under the law, a locator should not be permitted to hold an excess of ground with a single location, and when his notice provides that his mining claim extends a certain number of feet in a certain direction from the discovery, subsequent locators may be governed by the statement in the notice and not by stakes that include within their boundary an excess of surface ground. We are not inclined to depart from the rule laid down in the opinion in this case.
Our attention has been called to the fact that the Snowdrift claim was located under the provisions of sees. 3101 and 3102, Rev. Statutes, instead of under the provisions of sec. 3207, Rev. Codes, and under the provisions of said sec. 3101, the notice of location was required to be conspicuously attached to one of the center end stakes instead of being posted at the place of discovery; but that would make no-difference so far as the rule laid down in this opinion • goes. It was, in fact, posted at the discovery and not on the center-end stake, and recited that the claim extended 700 feet in a northwesterly direction from the notice and discovery, and 800 feet in a southeasterly direction therefrom, and under that notice he was only entitled to 800 feet in a southeasterly direction from the discovery point.
Some question is raised in regard to newly discovered evidence and the admission of counter-affidavits. The newly discovered evidence consisted of field-notes, plat and surveys. *282of the Buffalo and Parret Fraetion lodes. Upon an examination of those, we are fully satisfied that the decision of this court would not have been different from what it now is had that evidence been introduced on the trial. We do not think, as contended by counsel, that this newly discovered evidence, had it been introduced on the trial, would have entitled appellant to recover in this action.
No sufficient reason appearing why a rehearing should be granted, the application is denied.
Ailshie, J., concurs.