ground was undeveloped, and it was not known that both notices were upon the same lode, and also that the second notice was posted for the express purpose of protecting the original location; the second location of itself did not constitute an abandonment of the first. ment is a question of intention and is for the jury. Abandon Gleeson v. Martin White M. Co., 13, 442 (1878). The act of a locator in changing in the location certificate "westerly" and "east" and "southerly," describing the course of the vein to "northerly erly," is not evidence of an intention to abandon the claim; it proves exactly the reverse, and only that he had abandoned the opinion that the course of the vein was east and west. Utah M. & M. Co. v. Dickert & Myers S. Co., 6, 183 (1889). Utah. The plaintiff's agent located a claim for the plaintiff, and after holding it and doing the work thereon for five years, he resigned his agency in 1882 and took adverse possession of the premises, which he subsequently conveyed to the defendant. It was error to find that the plaintiff abandoned the claim in 1882. II. BY FORFEITURE. Forfeiture of a mining claim is the loss of a locator's possessory title thereto by a failure to perform those acts by which mining claims are held, or to comply with the requirements of mining regulations. This method of determination of title has also been confused with abandonment, and in many cases the latter term has been applied to what is clearly a forfeiture. The confusion has arisen from regarding the failure of the locator to do those things necessary for the perpetuation of his title as equivalent to an abandonment of the ground. The distinction, however, is quite clear, as in the case of a forfeiture there is no question of intent, which is the controlling element in abandonment. The question involved is one of failure to perform certain acts, which is a question of fact. Forfeiture by reason of failure to perform those acts which are requisite to the holding of a claim is provided for and governed by the provisions of Rev. Stats. 2324.1 Failure to comply with the rules and regulations of the district also works a forfeiture. In California and Arizona, however, it is held that this takes place only where there is a provision in the rules themselves for forfeiture for non-compliance. In Montana and Nevada this is held to be unnecessary, the forfeiture 1 See also California, Act March 27, 1897, p. 216; Colorado, M. A. S. sec. 3137; Minn., Gen. Stat. 1894, sec. 4069; Ore gon, Hill's Ann. Laws 1892, sec. 3828; Wash., Gen. Stats 1891, sec. 2213; Wyoming, Laws 1888, ch. 40, sec. 23. resulting necessarily from the non-compliance. Upon forfeiture the ground becomes open to relocation. There is no necessity of a judicial declaration of forfeiture. The loss of title becomes absolute, and may be asserted by any one acquiring rights subsequently, provided the loss has not been repaired by the original locator himself. It can only be set up by one who has acquired such subsequent rights, or, as it has been said, in order that it may take place there must be some one who is entitled to receive the benefit of it. The title to the claim is not divested by the failure to perform the acts requisite to hold it. That failure only throws the ground open to relocation. The divestiture of the original title takes place upon the acquirement of rights by a relocator. This relocator may be any one qualified to make a location, even the original locator or one of several original locators. Forfeiture must be pleaded specially by one relying on it in a contest for possessory rights, and the burden of proof is on the one who sets it up. As a defence it does not involve the question of possession, being analogous to a plea of confession and avoidance, which admits the plaintiff's possession but sets up the determination of his rights by defendant's entry and location. Where one tenant in common relies upon his co-tenants to perform the acts necessary for the preservation of the claim, he can obtain no relief if the claim is forfeited by the failure of the co-tenant to do so. In the last clause of Rev. Stats. 2324 there is a provision for the forfeiture of the interest of tenants in common who fail to contribute their share of annual expenditure or labor. The forfeiture in such case is to the co-tenants who have made the expenditure and complied with the procedure provided by the act.1 Mt. Diablo M. & M. Co. v. Callison, 5 Sawy. 439 United States. (1879), C. C. D. Nev. Hillyer, J.: "Whenever we consider that the plaintiff had been in unquestioned occupation of all these claims for over ten years prior to the entry of defendants, and the amount of labor altogether done on the ground, we have no inclination, and do not deem it our duty, to strain for a construction of the law or of the facts upon which to declare a forfeiture. Forfeitures have always been deemed in law odious, and courts have universally insisted upon the forfeiture being made clearly apparent before enforcing it. Equity often interferes to relieve against forfeitures, but never to divest estates by enforcing them." 1 See p. 265. Jupiter M. Co. v. Bodie Con. M. Co., 11 Fed. 666; s. c. 7 Sawy. 96 (1881), C. C. D. Cal. Assuming the proposition that the miners have authority to make a regulation or law by which a mining claim may be forfeited by failure to record the location thereof, yet such regulation or law, in order to effect a forfeiture, must provide that such failure to record shall work a forfeiture of the claim. Lakin v. Sierra Buttes Gold Mining Co., 25 Fed. 337 (1885), C. C. D. Cal. One who has forfeited his claim, by a failure to work his claim as required by the statute, may re-enter and resume work at any time before other rights attach in favor of subsequent locators. Hammer v. Garfield M. & M. Co., 130, 291 (1889), affirming s. c. 6 Mont. 53. Upon the party setting up a forfeiture for non-compliance with mining regulations rests the burden of proof. He must furnish clear and convincing proof thereof. Oscamp v. Crystal River M. Co., 58 Fed. 293 (1893), C. C. Ap., 8th Circ. "The failure of the owner to occupy or to work his claim during a given year will not operate to divest him of his title and to confer it upon another. A failure to work a claim to the extent required by the statute simply entitles a third party to relocate it in the mode pointed out by existing laws." The position of an overlapping junior locator is no better than that of any other third party. Rush v. French, 1, 99 (1874). The failure to comply Arizona. with a mining rule or regulation cannot work a forfeiture, unless the rule itself so provides. Johnson v. McLaughlin, 1, 493 (1884). Defendant located his claim in accordance with the provisions, and complied with all the requisites, of the statutes of the United States and the Territory, but did not comply with a district regulation by which a locator was required to record his claim with the district recorder and procure him to go upon the ground to inspect the same for the purpose of finding prior claims. Subsequently plaintiff located the same ground, complying with the district regulation as well as with all other requisites. Held, as there was no provision in the district regulations for forfeiture for failure to comply with this rule, the defendant's title was not defeated, but was valid. California. McGarrity v. Byington, 12, 426 (1859). "The right to a mining claim vests by the taking in accordance with local rules. The failure to comply with any one of the mining rules and regulations of a camp is not a forfeiture of title. It would be enough to hold the forfeiture as the result of a non-compliance with such of them as make non-compliance a cause of the forfeiture." Colman v. Clements, 23, 245 (1863). Where a forfeiture is claimed under a mining regulation, the courts will construe most strictly against the claim of forfeiture. A rule required that one day's work should be done on each claim in every thirty days, etc. "Claim" was held to be used in a general sense, including all kinds of claims, joint as well as individual. Wiseman v. McNulty, 25, 230 (1864). In order to have a forfeiture take place, there must be some person, natural or artificial, who is entitled to receive the benefit of the forfeiture when it accrues. Tenants in common of mining land, acting under a company name, are incapable of taking or holding in the name of the company the interest of any of the tenants in common by forfeiture. The term "forfeiture" in its common law significance has no application to the rights, interests, or remedies of the several persons composing a mining association. A provision in an agreement between the members of such an association, that on failure to pay certain assessments a member shall forfeit his claim or share to the company, attempts to create not a forfeiture, but a mode of transferring title, which will not be recognized. The term "forfeiture" is often used by miners, and in many decided cases as synonymous with "abandonment." St. John v. Kidd, 26, 263 (1864). The term "forfeiture," as used in our mining customs and codes, means the loss of a right to mine a particular piece of ground, previously acquired, by neglect or failure to comply with the rules and regulations of the bar or digging in which the ground is situated, prescribing the acts which must be done in order to continue and keep alive that right after it has been once acquired. As a defence it is entirely distinct and separate from that of abandonment; it involves no question of intent, but rests entirely upon the mining rules and regulations, and involves only the question whether in point of fact those rules and regulations have been observed by the party seeking to maintain or perpetuate the right regardless of what his intentions may have been. Depuy v. Williams, 26, 310 (1864). The failure to perform the amount of work on a mining claim required by the local mining laws or regulations established and in force in the district where the claim is located, amounts to an abandonment of the claim, and thereupon it may be occupied and appropriated by another. Pralus v. Pacific G. & S. M. Co., 35, 30 (1868). See this case on p. 297. Bell v. Bed Rock T. & M. Co., 36, 214 (1868). The failure of a party to comply with a mining rule or regulation cannot work a forfeiture of title to his claim unless the rule so provides. Strang v. Ryan, 46, 33 (1873). If the local mining laws provide that on a failure to work and post a claim as required, it shall be considered abandoned, a failure to comply with such laws is an abandonment, and the claim is open to relocation as vacant ground. If several, as tenants in common, locate a mining claim on the public land, and by failure to comply with the local rules forfeit the same, it may be relocated by a part of the first locators along with others who were strangers to the first location, and the tenants in common whose names are left out cease to have any interest. Morenhaut v. Wilson, 52, 263 (1877). Mere failure to do the work, while it may cause a forfeiture, does not constitute an abandonment. A forfeiture under the provision of mining regulations must be pleaded specially. A defence based merely upon forfeitures does not involve a denial of the plaintiff's possession or right of possession at the date of defendant's entry. It is analogous to a plea of confession and avoidance admitting possession, and a right of possession in the plaintiff which would have continued in him but for the defendant's entry and location, which by virtue of the mining laws terminated that right. Souter v. Maguire, 78, 543 (1889). Findings showing a continuous possession of a mining claim by the locator, and performance of the annual amount of work required by law, are sufficient to dispose of an issue as to abandonment. Kramer v. Settle, 1, 485 (1873). The failure to perform Idaho. the work on a mining claim required by State law to be done within a certain time after discovery amounts to an abandonment, and it may thereafter be appropriated by another. The performance of the work before such subsequent location will not cure the failure. But a failure to record a notice of location within the required time may be cured by recording it before a subsequent location. Montana. King v. Edwards, 1, 235 (1870). The regulations of miners which require the performance of a certain amount of work upon each claim are conditions subsequent. So long as the locator complies with them, the right to possess the mine remains with him. Upon failure to comply, he forfeits his right. It is not necessary that the law should provide that a failure to comply should work a forfeiture. "When mining ground is forfeited by any one, it again becomes unappropriated mineral land of the United States. Any one who relocates it, in accordance with the mining rules and customs of the district in which the same is situated, has the rights of the government, and may proceed to declare a forfeiture, or may set up the defence of forfeiture in an action against him." Herbert v. King, 1, 475 (1872). No regulations or customs of the district having been proven, the plaintiff introduced evidence which tended to show that the ground was unrepresented for five or six weeks, and that it thereby became subject to relocation, and was relocated by third parties, who worked it, unmolested by him, with his knowledge and without assertion of title by him. These facts raise a presumption of the right of location and establish an abandonment. Belk v. Meagher, 3, 65 (1878), affirmed in s. c. 104 U. S. 279. "The original location being valid, and the ground having been represented as the law required so that no forfeiture has occurred, a defective conveyance would not create a forfeiture and subject the ground to relocation." Saunders v. Mackey, 5, 523 (1885). A tenant in common who enters into an agreement with his co-tenant, by which the latter is to do the required annual work, forfeits his interest in the claim if the work be not done. The claim becomes thereby open to relocation, and a valid location can be made by the tenant who made default. The remedy of the other tenant is by action for breach of covenant, or to establish and enforce a trust in the claim as relocated. Brundy v. Mayfield, 15, 201 (1895). The forfeiture provisions of Rev. Stat. 2324 must be strictly construed. Before the interest of a part owner of a mining claim can be forfeited to his co-owners, it must be a fact that he has failed to contribute his proportion of the annual expenditure required by law. If he has not failed to do this, the publication of forfeiture notices will not affect his title. Nevada. Mallett v. Uncle Sam G. & S. M. Co., 1, 188 (1865). "Usually the mining claims in this State have been located with direct reference to the mining laws established in the district |