after the passage of the act of 1872, then compliance with them became essential.

Poujade v. Ryan, 21, 449 (1893). The court will not take judicial notice of the existence of a rule requiring claims to be recorded. Such rule, if it exists, must be proved like any other fact in the case.

Marshall v. Harney Peak T. M. M. & M. Co., 1, South Dakota. 350 (1890). In the absence of proof of regulations, it will be presumed that none exist.

Utah.

Roberts v. Wilson, 1, 292 (1876). "In order to introduce the written local mining laws of a district, it is necessary that it should appear aliunde that the copy comes from the proper repository, and that such party was empowered to give a certified copy so as to become evidence, and that such was a copy of the laws prevailing and in force in the district at the required date. These things have not been, and could not be, shown by the certificate attached to the alleged laws. Nor is there any authority for showing them by affidavit. This could only be done by express statute, and no such statute exists. In attempting to prove these facts the opposite party is entitled to his right of cross-examination, from which he is cut off if ex parte affidavits are sufficient."

McCormick v. Varnes, 2, 355 (1878). Congress has given to the local laws and customs of miners the force and effect of laws, so far as they are not in conflict with any superior law.

LAND OFFICE DECISIONS.

A location notice which, after naming the locators and their interests to the extent of 1,000 feet, concludes: "We claim 500 feet easterly and 500 feet westerly, situate about 200 feet easterly from the Sacramento," is sufficient under mining rules which require the notice to state" the number of feet claimed in the location and number claimed each side of monument," and that "in making a record of location of any claim the same shall be definitely described with reference to some natural or artificial monument."

Where the district rules provide that "the recorder in person or through his deputies go on the ground before filing a location for record and see that the proper notice and monument are placed thereon, and note on the notice and in a book for that purpose the locality of said location," the fact that notice was filed and recorded is corroborative evidence that the locator had complied with the law in the matter of location. Red Pine Mine, Copp, 158 (1875).

"The laws adopted by miners of a district must remain in force until amended, or repealed by the same authority that established them, or until abolished or modified by a law of the United States, or of the State or Territory within which the district is situated." An applicant for a patent, who had not complied with the local regulations, alleged that they were obsolete, and proved that a majority of locators in the district had disregarded them, though some had located in accordance with them. This was held not to establish the allegation, and the application was refused. Chavanne Quartz Mine, Copp, 283 (1880).

PROPERTY in a mining claim may be lost by abandonment. This is a voluntary act, and consists of relinquishing possession of the claim with an intention not to return and occupy it. The claim then becomes again a part of the unoccupied and unappropriated public domain, open to location by any one. Abandonment is purely a question of intention, to be determined by a jury.1 If there is no animus revertendi, the desertion of the claim determines the property at once, without regard to the duration of the locator's absence. On the other hand, abandonment will not be presumed from mere lapse of time. The question is one of intention only, and lapse of time is only evidence of intention not to return.

Abandonment must leave the land free to the appropriation of the next comer, whoever he may be. It must be an absolute desertion of the premises regardless of what may become of them in the future. It would logically follow that if the locator left in order that another might continue his possession, or expressed, upon leaving, the wish that a certain person might succeed him, this would not be an abandonment, but a gift, and it has been so decided in California. A different view, however, was taken in Murley v. Ennis, 2 Colo. 300, where the leaving without an intention of returning was treated as an abandonment, though he yielded up the possession to another on leaving. So the admission of another into a share of the claim is held in this view to be an abandonment pro tanto and an appropriation by the other 1 In New Mexico there is a statutory 2 And see Black v. Elkhorn M. Co., 163 provision by which a claim may be aban- U. S. 445. doned by recording a certificate of such a purpose. Act Feb. 5, 1889, sec. 6, p. 42.

person. The former view, which treats this succession as a gift, is the better one, and seems to have subsequently had the indorsement of the Colorado courts in Omar v. Soper. It follows from this view that a relocation by the original locator is not an abandonment of the first location, although in the second location new parties are joined.

An abandonment can be taken advantage of only by one who has subsequently acquired rights in the property.

It need not be specially pleaded, but may be proved under the general issue.

Little Pittsburg Con. M. Co. v. Amie M. Co., 17 United States. Fed. 57 (1883), C. C. D. Colo. After a claim has been properly located, the owner of it may sell any part of it without prejudice to his right to hold the remainder. He may dispose of it, or any part of it, by grant or gift in any way that seems proper to him. The transfer of a part containing the discovery shaft is not an abandonment of the rest of the claim.

Doe v. Waterloo M. Co., 70 Fed. 455 (1895), C. C. Ap., 9th Circ. The discoverer of a vein posted a notice, and then verbally agreed to transfer to others one-half of the claim if they would complete the location. This was not an abandonment.

Black v. Elkhorn M. Co., 163, 445 (1896). See this case under Chap. XII., Div. I.

Davis v. Butler, 6, 510 (1856). An abandonment of a California. mining claim determines the right of the party thereto from the date of the act of abandonment. Having once abandoned his claim, he will not be permitted to come, within the time allowed for commencing civil actions by the Statutes of Limitations, to reassert or resume his claim to the prejudice of those who may have in the mean time appropriated it.

Partridge v. McKinney, 10, 181 (1858). The law will not presume an abandonment of property in a dam and ditch for mining purposes from lapse of time.

"Where an

Waring v. Crow, 11, 366 (1858). The court charged: abandonment is sought to be established by the act of the party, the intention alone governs, and if such party leave a mining claim with the intention not to return, his abandonment is as complete if it last for a minute or a second as though it continued for years; but if he left it with the intention of returning, he might do so at any time within five years, provided there was no rule, usage, or custom of miners of such a notorious character as to raise a presumption of an intention to abandon."1 This was held to fairly leave the question of the abandonment to the jury.

As the possession of one tenant in common is the possession of all, the mere fact that one such tenant or partner goes away and remains absent, leaving his associates in possession, creates no presumption of abandonment.

1 Subject now to law as to annual work.

McGarrity v. Byington, 12, 426 (1859). "Especially in the absence of any custom or local regulation, a right of property, once attached in a mining claim, does not depend upon mere diligence in working it. Not to work it may be a circumstance of some weight tending to show abandonment, and this abandonment of a claim resting for validity only on possession, may be sufficient to defeat the title." Richardson v. McNulty, 24, 339 (1864). In an action to recover possession of a mining claim where the defence is abandonment by the plaintiff, the judgment roll in an action by the plaintiff against third parties to recover possession of the same ground, and in which plaintiff had judgment, is admissible to rebut evidence of an intention to abandon. An abandonment can only take place where the occupant leaves the land free to the appropriation of the next comer, whoever he may be, without any intention to repossess it for himself, and regardless of what may become of it in the future. If the possession of

the occupant be continued in another by the expression of a wish of the occupant to that other that he succeed to the possession, and he thereupon takes possession, a gift is the result; there is no abandonment.

Pralus v. Pacific G. & S. M. Co., 35, 30 (1868). Where the defendant in an action to quiet title to a mining claim on the public lands set up in a supplemental answer both abandonment and forfeiture by the plaintiffs of their asserted title to and possession of said claim after suit commenced, but failed to set up any subsequently acquired rights therein by the defendant, these matters were unavailing as a defence.

Bell v. Bed Rock T. & M. Co., 36, 214 (1868). In an action to recover a mining claim, defendant may prove abandonment by plaintiff without having specially pleaded it.

When defendant in support of a plea of abandonment proves that plaintiff left the land and ceased to work or occupy it, plaintiff may in rebuttal show acts explanatory of the leaving which tend to show that it was not attended by an intention not to return. Evidence that, subsequent to the leaving, a party on behalf of the defendants offered to buy plaintiff's claim, and plaintiff refused to sell, is admissible for this purpose.

Marquart v. Bradford, 43, 526 (1872). An estoppel in pais does not constitute an element of abandonment, nor is it one of the circumstances from which an abandonment may be found.

Morenhaut v. Wilson, 52, 263 (1877). To be driven from a mining claim by Indian hostilities does not constitute an abandonment. An abandonment may be proved under the general issue.

Stone v. Geyser Quicksilver M. Co., 52, 315 (1877). The question of abandonment can never arise except where there has been possession, and then the animus revertendi is the simple test. Whether the intention is entertained in good or bad faith does not affect the question. Whether a defendant in ejectment who pleads abandonment reasonably believed that the ground had been abandoned, does not affect the decision of the question of abandonment.

Seymour v. Wood, 53, 303 (1878). Where the plaintiff in ejectment for a mining claim on cross-examination admitted that he had not worked the claim for several years, having during that time fol

lowed mining in Mexico, and his machinery had been removed from the claim, the testimony established an abandonment, and a verdict for the plaintiff was against the evidence.

Richards v. Dower, 81, 44 (1889). In the act of Congress of 1867, granting lands for town sites, there is a reservation of gold mines. Under this act "a mine is not reserved unless it is not only known, but known to be valuable at the date of the patent, or discovered to be so before the occupation or improvement of the lots containing them, for residences or business under the town site title." "One essential requisite of a gold mine is a natural deposit of rock or earth containing a sufficient quantity of gold to admit of profitable working." The burden of proof is on the one setting up a title to a mine under the reservation. If the latter had been worked prior to the town site patent, but had been abandoned, it cannot be presumed to have contained a valuable deposit at the date of the patent. When the evidence is sufficient to show an intention to abandon the mine, as having become valueless, the possessio pedis by the miners of shafts, tunnels, inclines, dumps, and slopes on the vein, if continuing until the date of the town site patent, would amount to a mining claim, or would have the effect of preventing the land on which they were situated from passing by the patent.

Trevaskis v. Peard, 44 Pac. 246 (1896). Where the owner of a claim which was erroneously included in a judicial sale removed his effects therefrom and absented himself for two years, intending to claim it only in case the development by the purchasers rendered it profitable, his acts will constitute abandonment.

Proof of abandonment may be given by the plaintiff without a special plea when the defendant pleads and relies on a location prior to the plaintiff's.

Murley v. Ennis, 2, 300 (1874). Title by location "may Colorado. be lost by abandonment, as all must agree; for the right, while absolute in the present, exists as to the future only upon condition that the occupant shall perfect the improvement which the law requires, proceeding with reasonable diligence therein; so that if he desert the premises though but for a moment, with the intent not to resume his labors, his right is gone. So if without writing he yield up the possession to another, the right which before was in him passes to his successor in possession, or rather the right of the first occupant is gone by abandonment; and by virtue of his occupancy a new right has arisen in him who succeeds. And so if the first occupant, while his right is still incipient, admit another in possession with him, upon the agreement that the labor of development shall be performed by the two for their common benefit, this amounts to an abandonment pro tanto, and if the development be afterwards perfected by their joint. labors, the better right which is thereby acquired inures to the two jointly. The case is not different where the first occupant, pending the labor of development, agrees for a consideration to proceed therewith for himself and another jointly; for such undertaking amounts to an abandonment as to such interest in the premises as he agrees shall inure to that other, and creates an agency also, whereby every blow thereafter stricken is the act both of him and his associate."