The judgment of the lower court should be affirmed. The crucial determinative factors are:
(1) The actual ground markings, rather than the recorded description, fix the boundaries of a lode claim.
(2) The markings of Sue 3 were ascertained notwithstanding the marking stakes had been removed without fault of plaintiffs.
(3) Substantial evidence indicated appellant had actual notice the location of Sue 3 was identical with the former location of Campbell 1, the ground markings of which remained.
Preponderant authority, both text and case, agrees that where there is conflict between markings on the ground and description in the recorded location notice, the markings control, if they can be definitely located or their location can he clearly ascertained.
For text authorities see 58 C.J.S. Mines and Minerals § 52, pp. 106, 107; 36 Am. Jur., Mines and Minerals, § 89, pp. 341, 342; 1 Snyder on Mines, 1902, § 392, p. 360; *105Morrison’s Mining Rights, 16th ed., Vari anee, p. 89; Ricketts, American Mining Law, Cal.Dept. Nat.Res., Div. of Mines, Bull. 98, 1931, n. 11, p. 396 and n. 21, p. 397; Martin’s Mining Law and Land-Office Procedure, 1908, § 151, pp. 117, 118; Martz, Cases and Materials on the Law =of Natural Resources, 1951, pp. 559-61.
Attention is also called to 1 Rocky Mountain Mineral Law Institute, First Annual, 1955, pp. 308, 309, where it is said:
“ * * * The inherent weakness of a locator’s title is that there is no written instrument which is in fact evidence of title. True, he has a recorded location certificate, but in the last analysis, all that any recorded certificate conclusively proves is that it was recorded. Unlike the holder of a federal oil and gas lease, the validity of his title depends upon proof of things not of record. * * * ” (Emphasis supplied.)
See also 2 Lindley on Mines, 3d ed., § 381, pp. 899-903, and § 382, pp. 904, 905, wherein it is said:
“Mr. Washburn states the general rule to be, that courses and distances are generally regarded as more or less uncertain, and always give place, in questions of doubt or discrepancy, to monuments and boundaries that are referred to as indicating and identifying the land.
“This doctrine has been uniformly applied by the courts to certificates of location of mining claims, and is the rule prescribed by congressional law for construing mineral patents. * *
Another recognized authority says:
“But, ordinarily, surveys are so loosely made, instruments so liable to be out of order, and admeasurements, especially in rough or uneven land or forests, so liable to be inaccurate, that the courses and distances given in a deed are regarded as more or less uncertain, and always give place, in questions of doubt or discrepancy, to known monuments and boundaries that are referred to in the deed as indicating and identifying the land. * * * ” 3 Washburn on Real Property, 6th ed., § 2324, p. 387.
In addition to these text authorities, the following excerpts are from a few of the numberless cases which hold that where there is conflict between descriptions in recorded location notices and markings made upon the ground the latter control: ⅜-
“ * * * But the fact remains that the work of posting the stakes was actually done. The testimony of defendant’s witnesses upon this point is clear, positive, direct, and undisputed. * * * The only conclusion that is justified by the evidence is that the stakes and monuments were actually placed upon the corners of each of the locations made on January 2, 1888, and the conclusion is equally inevitable that the locations were so marked that the boundaries thereof could be readily traced. All the authorities agree that any marking on the ground, by stakes, monuments, mounds, and written notices, whereby the boundaries of the location can be readily traced, is sufficient. * * * ” Book v. Justice Min. Co., C.C.1893, 58 F. 106, 112, 113.
“ * * * Then, again, locations are often made without any accurate knowledge of the true course and directions which a compass would readily give, and mistakes in the notice as to the direction and course of the ground located often occur. But such mistakes do not invalidate the location. Positive exactness in such matters should never be required. It is the marking of the location by posts and monuments that determines the particular ground located. * * * Such stakes and monuments would control the courses specified in the notice. * * * The mistakes made in the notices as to the courses of the lines are not, in the light of the other facts, sufficient to invalidate the locations. * * * ” (Emphasis supplied.) Book v. Justice Min. Co., C.C.1893, 58 F. 106, 115, 116.
*106“ * * * If the calls as to distances and courses set out in the description vary from the markings actually made on the ground, the latter are to prevail, as it is the markings on the ground which establish the boundaries of the claim in contemplation of the statute. * * * if you are satisfied from the evidence that the distances and courses set out in the description, as shown by the record, do not correspond with the markings made on the ground, then the latter must prevail, and will determine the locus in quo of the location, regardless of any description appearing from the record. The controlling act in making the location is the marking on the ground so that the boundaries of the location can be readily traced.” (Emphasis supplied.) Meydenbauer v. Stevens, D.C.Alaska, 78 F. 787, 792.
“ * * * The well-settled rule in that respect is that, where the monuments are found upon the ground, or their position or location can be determined with certainty, the monuments govern, rather than the location certificate; * * Treadwell v. Marrs, 9 Ariz. 333, 83 P. 350, 355.
“That the courses and distances of a survey must yield to its monuments, whether natural or artificial, is a familiar doctrine. 3 Wash.R.P. *621, and cases there cited.
“Negligence in making surveys; imperfect instruments; variations of the needle; roughness and unevenness of the ground — are some of the elements .of uncertainty affecting courses and distances, and make obvious the propriety of the rule. Ibid." Pollard v. Shively, 5 Colo. 309, 313.
“It was said in Treadwell v. Marrs, 9 Ariz. 333, 83 P. 350, 355, on an issue as to the location of a mining claim, ‘that, where the monuments are found upon the ground, or their position or location can be determined with certainty, the monuments govern, rather than the location certificate; but where the course and distances are not with certainty defined by monuments or stakes, the calls in the location notice must govern and control.’ This is a salutary and well settled rule calculated to require the best evidence of the true boundaries of a claim, and to prevent the swinging or floating of claims to the detriment of subsequent locators. Of course inaccuracies or mistakes in a mining location will not invalidate the location, and in such cases monuments originally erected on the ground control the courses and distances. * * * ” (Emphasis supplied.) Gray v. Coykendall, 53 Nev. 466, 6 P.2d 442, 444, 445.
“ * * * Take the respondent’s position in its extreme results, and it would appear that, if the description upon the face of a notice is good, then it is still good, even if it be made to appear by the clearest evidence that it describes nothing. Take an apparently good description, go upon the ground with it, find the monuments mentioned, then start to run the lines of the claim hy reference to the monuments, and find that the monuments so exist, and the lines are so located by reference to them, that the description is wholly unintelligible, and, with the description, one cannot find the premises intended to be described. Then we must accept that location description as final, and cannot show by any testimony that it is utterly worthless for the purposes of identifying the claim. We do not understand that to be the law.
“ * * * Then it is certainly a matter of legitimate proof whether, in fact, there is any reference to the permanent monument which is intelligible, or whether the reference is delusive, meaning nothing, describing nothing, and misleading. * * * ” (Emphasis supplied.) Dillon v. Bayliss, 11 Mont. 171, 27 P. 725, 728.
*107“The rule is well settled that stakes and monuments upon the ground will prevail over the calls of a location notice in case of discrepancy. Sturtevant v. Vogel (C.C.A.9th 1909) 167 Fed. 448, 93 C.C.A. 84; McElvoy v. Hyman (Hallett C.C.1885) 25 Fed. 596, 599; Book v. Justice Mining Co. (Hawley C.C.1893) 58 Fed. 106, 115; Meydenbauer v. Stevens (Delaney D.C.1897) 78 Fed. 787; Smith v. Newell (Marshall C.C.1898) 86 Fed. 56, 58; Meyer, C. R. M. Co. v. Steinfield (1905) 9 Ariz. 245, 80 Pac. 400; Upton v. Santa Rita (1907) 14 N.M. 96, 89 Pac. 275; Pollard v. Shively (1880) 5 Colo. 309; Cullacott v. Cash G. M. Co. (1885) 8 Colo. 179, 6 Pac. 211.
* * * * * *
“ * * * This view seems to be in harmony with certain expressions in Sturtevant v. Vogel (C.C.A.9th) 167 Fed. 448, 453, 93 C.C.A. 84, 89, where it was said:
“ ‘There is no evidence in the case to indicate, and it is not claimed by the plaintiff in error, that he was misled by the defects in the recorded notice of location, or that he ever saw or heard of the location notice. Indeed, he testified that he never saw it. In view of that fact, the case as it went to the jury stood precisely as it would have stood, if no notice whatever of the location had been recorded.’ ” Cardoner v. Stanley Consol. Min. & Mill Co., C.C.1911, 193 F. 517, 519, 520.
“Plaintiff concedes that the location notice does not describe the Good Luck Mine in accordance with the monuments which at the time of the location were erected on the ground. She contends, however, that such monuments control over the description and courses as contained in the location notice. * * *
* * * * * ⅜
“Notices of location are to be liberally construed. * * * At 40 Corpus Juris, p. 805, it is said in referring to the sufficiency of the location notice: 'If it is made in good faith, it should receive a liberal and reasonable construction in favor of the locator; and if by such construction the language employed in describing the claim, when taken in connection with the markings on the ground and other surrounding circumstances, will enable a reasonably intelligent person to find the claim, and trace its boundaries, and therefore imparts notice thereof to subsequent locators, it is sufficient.’ ” McLean v. Ladewig, 2 Cal.App.2d 21, 37 P.2d 502, 504.
“However, in each of several respects appellants contend that the evidence failed to show that the several locations assertedly made by the defendants Smith were made in accordance with the provisions of the statutes in that regard. Sec. 1426 et seq., Civ. Code. The principal objections made in that connection by appellants, in effect are: that some of the location notices filed by defendants Smith were defective for the asserted reason that they failed to properly describe the respective claims in that some of the said notices specified a description different from that indicated by the boundaries as erected on the claims by the defendants Smith; * * *. * * * nevertheless, it may be said, generally, that it has been ruled, in effect, that notices of location should be liberally construed, and that ‘monuments erected in the field should control courses and distances as indicated upon paper’, which statement it was held ‘embodies a correct rule many times declared by this court’. Schroder v. Aden Gold Mining Co., 144 Cal. 628, 629, 78 P. 20. As was said in the case of McInerny v. Allebrand, 107 Cal.App. 457, 461, 290 P. 530, 531, ‘ * * * the recitals in the location notice cannot be accepted as proof of the various steps essential to perfect a mining claim. * * * “And, besides, if it [the location notice] had contained every essential *108requisite of a location notice, the copy of the record would have proved nothing except the bare fact that such a notice had been recorded. It would not have proved that * * * the location was so marked on the ground that its boundaries could be readily traced, ‡ ‡ * * *
“Furthermore, the question whether the location of a mining claim as designated by boundaries marked on the ground is clearly ascertainable, is properly a -question of fact for the trial court. * * * And where, as in the instant case, the evidence relating thereto is conflicting, so, also for the determination of the trial court is the question with respect to the accuracy and sufficiency of the 'natural object’ * * Denman v. Smith, 14 Cal.2d 752, 97 P.2d 451, 453, 454.
The evidence admittedly establishes that appellees sufficiently marked the boundaries of Sue 3 upon the ground and placed their discovery and marking stakes within six inches to two feet from each of the stakes marking the boundaries of the abandoned Campbell 1 location. Thus the exact location of the boundaries of Sue 3, as located by appellees, was definitely ascertained even though their own marking stakes of Sue 3 were removed. While there was no direct evidence that appellant was responsible for the removal of the Sue 3 stakes, the apparent interest and purpose the appellant had to defeat the claim of appellees was a circumstance the court was entitled to take into consideration if it chose to do so. Consequently, if a finding that the appellant was responsible for the removal of the Sue 3 stakes is necessary to support the court’s judgment, we must consider the court so concluded. In any event, when it was once established that Sue 3 had been located by placing marking stakes at points practically identical with the Campbell 1 stakes which still remained in place, the rights of the appellees were fixed and vested, and these rights could not be defeated by the subsequent removal of these stakes without appellees’ fault, even though appellant was not responsible for their removal. The law in this respect is also very clear. 58 C.J.S. Mines and Minerals § 47, p. 101; 36 Am. Jur., Mines and Minerals, § 94, p. 346; 2 Lindley on Mines, 3d ed., § 375, pp. 889, 890.
“ * * * But there must be some such marking, and when a mining-claim is once sufficiently marked out upon the ground, and all other necessary acts of location are performed, it vests the right of possession in the locator, which right cannot be divested by the obliteration of the marks or removal of the stakes without the fault of the locator, * * (Emphasis supplied.) Copp’s United States Mineral Lands, 2d ed., p. 390.
“ * * * the locators of the Silver Top could not be legally deprived of their rights by any ‘juggling’ of the post and monument, * * Tonopah & Salt Lake Min. Co. v. Tonopah Min. Co., C.C.1903, 125 F. 408, 418.
“ * * * When the location is one sufficiently marked upon the surface, so that its boundaries can be readily traced, and all the other acts of location are performed as required by law, the right of possession becomes fully vested in the locator, and cannot be divested by the removal or obliteration of the stakes, monuments, marks, or notices, without the act or fault of the locator, * * (Emphasis supplied.) Book v. Justice Min. Co., C.C.1893, 58 F. 106, 114.
Although Pollard v. Shively, 5 Colo. 309, 318, 319, says it is necessary that a locator keep up his boundary posts in order to benefit by the rule giving control to markings on the ground, that holding is in direct conflict with innumerable decisions deciding that once the boundaries of a claim are properly marked, the rights of the locator are fixed, determined and vested and cannot be defeated by the obliteration or destruction of those markings. The Pollard pronouncement necessarily adopts a doubtful premise, for it seemingly assumes *109the sole purpose of ground markings is to give notice to other potential locators. That ignores the laws of the United States where the title to the land resides. The federal laws require only that the ground he marked in order to vest a locator’s right to the claim. That a notice of location be also recorded is desirable, and our statutes so provide. But this provision of our law is inadequate to work a forfeiture of a locator’s vested right. Much less may it be said that the recording of a faulty notice of location will forfeit the locator’s rights.
The Pollard decision, supra, literally begs the question of conflicts between recorded notices of location and ground markings. The huge weight of authority resolves such conflicts in favor of ground markings. The adoption of the Colorado court’s holding would throw wide open the door to fraud, because in every case of faulty recorded notice a person could surreptitiously remove, destroy and obliterate another’s ground markings and smugly say, “How was I to know? There were no markings to notice me the land was located.” So, if the majority holding hinges on the Pollard case, every locator of Wyoming mining claims should be warned that henceforth a twenty-four-hour-a-day watch, the year round, must be kept over each- located claim markings. Otherwise they will risk discovering too late that because their recorded notice of location is somewhat defective their rights will be forfeited.
It seems uncontrovertible that if the recorded notice is not examined by an adverse claimant, he has not been misled by it. There was not one word of testimony or other evidence that the appellant was misled by the recorded defective notice of location or that he even saw or examined the recorded notice. 2 Lindley on Mines, 3d ed., § 383, p. 910.
The vital error in reversing the trial court in this case is that to do so forfeits a valuable vested right of the appellees solely because no constructive notice gave the true description of Sue 3. No account is taken of the fact there is substantial evidence in the record to justify the lower court in concluding the appellant had actual notice the area was claimed by the appel-lees.
This court has heretofore spoken on this point when in Hagerman v. Thompson, 68 Wyo. 515, 530-532, 235 P.2d 750, 755, 756, it said:
“ * * * Judging from the cases generally, however, if a location is merely defective, then the courts are inclined to hold that defects are cured when a subsequent locator has knowledge of the prior location * *
The same opinion notes with apparent approval :
“ * * * One of the rules is stated in 2 Lindley on Mines, Section 381 where the author says: ‘In the initiation of rights upon public mineral lands, as well as in the various steps taken by the miner to perfect his location, his proceedings are to be regarded with indulgence, and the notices required invariably receive at the hands of the courts a liberal construction.’ * * * ”
Our court also quoted Steele v. Preble, 158 Or. 641, 77 P.2d 418, 428, where it was said:
“ * * * ‘The purpose of posting a notice and marking the boundary lines is to inform and guide others who may wish to make locations in that vicinity. But one who has knowledge of the boundaries of a mining claim cannot complain of the absence of stakes, monuments, etc., which are intended to identify the boundary lines. * * * Likewise, he cannot complain because of a defect in the posted notice. * * * Accordingly, a mere defect in the lines or notices could avail the defendants nothing.’ * * * ”
Even without other evidence in the record which tended to show the appellant had such actual knowledge that Sue 3 had been located by the appellees on the identical ground previously staked as the abandoned *110Campbell 1, the appellant’s own testimony was sufficient to disclose he did have that actual knowledge of the true location of Sue 3. Appellant admitted he saw a pit and filled it up, although he stated he did not recognize it as a discovery hole; that the hole was a “pit” dug and fenced 40 to 50 feet east of his own previous discovery pit; that he put a notice where the “pit” was, saying in part, “You are trespassing. I am calling the law”, and that the appel-lees’ discovery pit was outside the Sue 3 as described in the recorded notice of location. All these facts, circumstances and admissions taken together gave ample reason to believe the appellant had actual knowledge of the location made upon the ground by the appellees.
In Globe Mining Company v. Anderson, 78 Wyo. 17, 45-47, 318 P.2d 373, 384, 385, the'writer of the majority opinion in this case also discussed at some length the significance of statutes providing for the recording of a certificate of location. By quotation of authority, the premise was seemingly accepted that such statutory requirements for recording location notices were merely directory. This indicates the writer of that opinion then deemed that the certificate of location as recorded was not of controlling importance and if the complaining party had knowledge of the existence of the contested claim such party “will not be heard to raise an imperfect recordation of certificates of location as a defect of which they can take advantage.” Emphasis is given to that conclusion by the opinion’s further statement:
“For us to hold otherwise would be a repudiation of our often expressed view that where a locator attempts in good faith to comply with the law the courts are inclined to be liberal in construing his acts so as not to defeat his claim by technical criticism. * * * >>
It also seems appropriate to mention the majority takes little account of the court’s viewing the disputed area where the judge could see for himself if the country was level or rugged; whether it was overgrown with vegetation or barren; whether a stake or other ground marking was clearly visible at the maximum distance of 432 feet, the greatest distance there was between the ground marking and the recorded description. The majority decision in this case necessarily finds that it was improbable, if not impossible, for an alert person to discover such a marking stake at a distance of less than an ordinary city block, or to see evidence of a filled-in discovery pit, and so be put upon actual notice that a mining claim had been located.
Not the least of my disagreement with the majority opinion is its repudiation of the age-old holding of this court, and an almost inviolate maxim of appellate function, that the reviewing tribunal will not assume to substitute its judgment for that of the trial court if there is any substantial evidence which justifies its finding of fact below. That finding of fact was that the Sue 3 covered the identical ground marked on the ground by the stakes of Campbell 1. While the majority, in one breath, seem to accept the fact that Sue 3 was marked on the ground as the identical area indicated by the markings of Campbell 1, 'the majority then proceed to adopt the testimony of a surveyor showing the Sue 3 claim was in a different place than Campbell 1. This is justified on the tenuous theory that the plaintiffs’ testimony was inferior in quality to that of the surveyor’s notwithstanding the court’s different reaction. It amounts to holding this court is privileged to substitute its judgment for that of the trier of fact.
Recognition is also given to the appel-lees’ contention that the judgment in the quiet title action between the same parties concerning the claim Sue 3 was res judi-cata. It is true that judgment did not describe Sue 3 by metes and bounds or by courses and distances, but only quieted title in a claim known as Sue 3. In consequence, there was left to be determined in the instant action only the exact area on the ground of Sue 3. When, in the instant action, it was definitely ascertained *111that Sue 3 as it had been marked upon the ground was identical with the area marked by the boundary and location stakes of Campbell 1, the force of the quiet title action immediately established itself with relation and with respect to that particular area of ground and the title to it as a valid mining claim was not subject to further determination.
Finally, considerable comfort and satisfaction is taken from that portion of the Revised Statutes of the United States, reported in 30 U.S.C.A. § 34, reading as follows:
“ * * * Where patents have issued for mineral lands, those lands only shall be segregated and shall be deemed to be patented which are bounded by the lines actually marked, defined, and established upon the ground by the monuments of the official survey upon which the patent grant is based, and the United States supervisor of surveys in executing subsequent patent surveys, whether upon surveyed or unsurveyed lands, shall be governed accordingly. The said monuments shall at all times constitute the highest authority as to what land is patented, and in case of any conflict between the said monuments of such patented claims and the descriptions of said claims in the patents issued therefor the monuments on the ground shall govern, and erroneous or inconsistent descriptions or calls in the patent descriptions shall give way thereto. R.S. § 2327; Apr. 28, 1904, c. 1796, 33 Stat. 545; Mar. 3, 1925, c. 462, 43 Stat. 1144.” (Emphasis supplied.)
Thus by statute the Congress of the United States has made plain that with respect to even so solemn an instrument as a patent, the description of record by courses and distances is to give way to the actual markings made upon the ground. We would do well to follow this precept.