fact must be conclusively inferred, the finding is sufficient as the finding of the ultimate fact." Hence if the marks of location as found by the court are of such a character that it is evident that the boundaries can be readily traced the finding will be sufficient; and in such a case, if there be, in addition to the special findings, a general finding to the contrary, the findings will be set aside as conflicting—as was in fact done in a case involving the validity of mining locations, where it was found that "said locations were not distinctly marked on the ground so that their boundaries could be readily traced." (Howeth v. Sullenger, 113 Cal. 547.) The question to be considered, therefore, is whether in this case the marking of the location as found was sufficient. And in considering this question, it will be observed, we are not confined to the monuments placed at the corners of the claim at the inception of the location for the purpose of marking it, but may consider also all other objects placed on the ground, either then or subsequently, prior to the defendant's location, either for the purpose of serving as monuments or otherwise. For all that the statute requires is that the claims be marked distinctly on the ground, without regard to the mode.

The two claims of the plaintiff, it appears from the findings, adjoin each other-the Extension being north of the Luella claim. They were each marked at the corners by four oak stakes, about a foot and a half in length, flattened on two sides, and driven into the ground four or five inches -two of the stakes being at the ends of the dividing line and common to both claims. Some of the stakes were in the brush, others in the open ground. In the middle of the dividing line was an oak tree, blazed by the plaintiff on two sides, on which the notices of location were posted. In these the two claims were described respectively by courses and distances, running from the tree to a stake and from stake to stake to the point of beginning. The quartz ledge had been previously discovered and work had been done in developing it on both claims. The plaintiff also opened up and uncovered the ledge a considerable distance from the tree each way. Subsequently the ledge was further developed by three different cuts sunk deep in the rock, aggregating together over eighty feet in length. A house was

built on the Luella claim, near the common boundary of the two claims, in which the plaintiff's men were living.

This, I think, was sufficient under the most stringent construction of the law (Southern Cross etc. Co. v. Europa etc. Co., 15 Nev. 383); and indeed the case seems to come directly within the authority of Howeth v. Sullenger, supra.

Stakes driven in the ground are, in the absence of convenient natural objects, the most common means of marking a tract of land, and "the most certain means of identification." (Hammer v. Garfield Min. etc. Co., 130 U. S. 299; 1. Lindley on Mines, sec. 373, p. 483.) It may be that the marking of the claim by substantial stakes at four corners will not be of itself sufficient (Taylor v. Middleton, supra); but here it is found that some of the stakes were in the open ground, and as the ledge had been sufficiently developed to show its existence and direction, the boundaries of the claim could be readily traced from these. Both claims were also marked by the blazed oak, and from that alone the boundaries as given in the notice could be readily traced. The posted notices, it is said, cannot be substituted for the marking, but they "may be an aid in determining the situs of the monuments." (1 Lindley on Mines, sec. 373, p. 483.) They therefore constitute a part of the marking, as does every other object placed on the ground for the purpose of marking it or otherwise, if it in fact does help to mark it. It may, indeed, on account of its temporary nature, be, in general, of minor significance, but this is not so where the location is followed by the actual and continued working of the claim. (Jupiter Min. Co. v. Bodie etc. Min. Co., 7 Saw. 110.) I think, therefore, that the plaintiff's locations were good, and the findings sufficient.

This conclusion is also, in some degree, supported by other findings of the court, which are "that defendants were knowing to the above facts, and recognized the existence of said claims, but claimed that a sufficient amount of assessment work had not been performed by the plaintiff"; and that one of them "had been watching the plaintiff during the summer of 1897 to see if he did the required amount of assessment work on his claims." It appears, therefore, that the location. was at least sufficient to satisfy the defendants, who alone

are adversely interested; and that it thus effected the full purpose contemplated by the act.

I advise that the judgment and order appealed from be affirmed.

Haynes, C., and Gray, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

Garoutte, J., Van Dyke, J., Harrison, J.

[S. F. No. 1755. Department Two.-February 12, 1901.] H. N. GRAY, Appellant, v. LA SOCIETE FRANCAISE DE BIENFAISANCE MUTUELLE, Respondent.

BUILDING CONTRACT-EXTRA WORK-WRITTEN ORDER REQUIRED.— Where by the terms of a building contract it was provided that "no extra work shall be allowed except where a written order from the architects is procured, approved by the building committee," and all increases of expenditure were required to be in writing, the owner of the building cannot be charged with extra work which the contractor was orally requested by the architects to perform, of which request the owner and the building committee were ignorant.

ID.—PROVISION FOR ARBITRATIon-Value of EXTRA WORK.—Where the contract provided that, in case a dispute should arise between the parties respecting the valuation of any extra work, two arbitrators should be appointed, with power to choose an umpire, the decision of any two of whom shall be final, and such dispute arose, and no request or attempt for arbitration was made by the plaintiff, and no excuse was shown by him for not having made such request or attempt, the plaintiff is precluded by the terms of the contract from maintaining an action for the alleged value of extra work.

APPEAL from an order of the Superior Court of the City and County of San Francisco denying a new trial. J. M. Seawell, Judge.

The facts are stated in the opinion.

Fisher Ames, for Appellant.

A. Comte, and Boyd & Fifield, for Respondent.

COOPER, C.-This action was brought to foreclose a contractor's lien for work and labor done and materials furnished in supplying all of the concrete and artificial stone work for the building of the defendant known as the "French Hospital" in the city and county of San Francisco. The case was tried before the court, and findings filed upon which judgment was entered for defendants. Plaintiff made a motion for a new trial which was denied and this appeal is from the order denying the motion.

It is claimed that the evidence is insufficient to sustain the findings in two important particulars which we will discuss in the order as set forth in the briefs. On the seventh day of October, 1893, the plaintiff's assignor, a corporation, entered into a contract in writing with defendant corporation, by the terms of which the said assignor of plaintiff agreed to furnish labor, tools, materials, and appliances and perform and complete all the excavating, concrete, artificial stone work, cementing, and other work as shown and described in the plans and specifications made by the architects and signed by the parties at the time of making the said contract, all for the sum of twenty-five thousand eight hundred and eighty-five dollars. The work was performed and the contract price paid as agreed upon. The contention here is not as to the amount to be paid under the contract, and which was paid thereunder, but is as to an item of sixteen hundred and eighty-four dollars and fifty cents, which is particularly stated in finding 4 as follows, to wit:

"That immediately after the execution of said written contract the said Gray Brothers' Artificial Stone Paving Company entered upon the performance thereof, under said articles of agreement and specifications, and while they were so engaged in the early part of December, 1893, William Mooser, one of the said architects, requested said corporation orally to carry up the concrete walls eighteen inches higher than called for by the original plans and specifications, and that said corporation subsequently complied with said request, and did carry up said concrete walls eighteen inches higher than called for by said plans and specifications, and

in so doing put in six thousand seven hundred and thirtyeight cubic feet of concrete wall, of the value of sixteen hundred and eighty-four dollars and fifty cents."

The court found in effect that this item was for extra work and was not agreed to in writing, nor requested by defendant nor its building committee, and that for this reason plaintiff could not recover therefor. The main contention of appellant is that the item was for services performed under the original contract and was not for extras, and that the work was done at the request of the architect of defendant, and that for this reason the defendant is responsible. The contention is mainly based upon the following clause in the specifications which were a part of the contract, to wit: "If, in the opinion of architects, any particular place should require more cement or more thickness of floor or concrete than is called for, the contractor will have to do the same, and the cost of said work to be determined by the architects."

We think, without regard to the question as to whether or not the contested item is for extras or was incurred under the authority of the contract and said quoted clause in the specifications, the defendant is not liable. Immediately following the clause quoted from the specifications and as a part of the same sentence is the following: "But no extra work shall be allowed except where a written order from architects is procured, approved by the building committee." The court found "that the request of the architect therefor was never approved by the building committee, nor was the cost or value thereof ever fixed or agreed upon or prearranged." This finding is supported by the evidence. It follows that even if the original contract and the specification quoted authorized the carrying up of the concrete walls eighteen inches higher, it could only be a charge against defendant when done under a written order from the architect, approved by the building committee. The defendant cannot be bound outside the terms of its contract. The plaintiff agreed that no extra work should be allowed except upon a written order from the architect, approved by the building committee. It did not procure such order, and therefore must be held to the terms of its contract. The above is the