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. King v. Edwards, 1, 235 (1870). The regulations of Montana. 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. remedy of the other tenant is by action for breach of covenant, or to establish and enforce a trust in the claim as relocated. The 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 where the location is made. Such mining laws when once established are recognized by the courts, and indeed the legislature of the State has given them the force and binding obligation of legislative enactment. (Stats. of Nev., p. 21, sec. 77). When those mining laws directly point out how mining claims must be located, and how the possession once acquired is to be maintained and continued, that course must be strictly pursued." A failure to do so works a forfeiture, not a strict forfeiture, "but a kind of forfeiture recognized by the courts of this coast from the earliest day, and which is certainly founded upon rational and just principles." When a court presumes title in a first appropriator, it can only be a title subject to the conditions imposed by the mining laws and customs under and by virtue of which it was acquired. In the absence of mining laws, the miner locating a claim holds only by actual occupancy, and by such working for the development of the mine as would under all the circumstances be deemed reasonable, and his right of possession will be continued by occupancy and use. Oreamuno v. Uncle Sam G. & S. Mining Co., 1, 215 (1865). Mal lett v. Uncle Sam G. & S. M. Co. followed. It was not error to instruct the jury as follows: "To enable a party to maintain a right to a mining claim, after the right is acquired, it is necessary that the party continue substantially to comply with mining rules and customs established and in force in the district where the claim is situated upon which such right is made to depend." Steel v. Gold Lead G. & S. M. Co., 18, 80 (1883). In an action on an adverse claim, under the Nevada statute, the defendant may give evidence of forfeiture without having pleaded it specially. 20 CHAPTER XII. RELOCATION. WHEN a mining claim has been abandoned or forfeited, it becomes again a part of the unappropriated and unoccupied public domain, and may be relocated by any one qualified originally to make a location. The acts requisite to the making of a relocation. are identical with those requisite to make an original location, except that the relocator may adopt the discovery and the monuments of the abandoned or forfeited location.1 He has the same time to perform these acts as had the original locator. The act of relocation is an admission of the validity of the original location, and amounts to an assertion of its abandonment or forfeiture. It therefore does not properly include the location of the ground which another has previously attempted to locate, but to which he has failed to obtain a valid title by reason of failure to perform some of the necessary acts or by reason of his incompetency to make a location. Such a subsequent location is really an original location, the attempted location being invalid, and therefore no location. As only the unappropriated and unoccupied mineral land of the public domain is open to location, so there can be no relocation of mineral land until it has reverted to that condition. A location upon land already validly located creates no rights, and is not made valid by a subsequent abandonment or forfeiture of the original location. The abandonment must actually have taken place or the forfeiture be complete before the ground can be relocated. "The right to the possession comes only from a valid location. Consequently if there is no location, there can be no possession under it. Location does not 1 The method of relocation is prescribed by statute in Arizona, Act March 20, 1895, sec. 11, p. 55; Colorado, M. A. S. 3162; Idaho, Act March 5, 1895, sec. 7, p. 26; Montana, Pol. Code 1895, sec. 3615; New Mexico, Act Feb. 5, 1889, sec. 3, p. 42; North Dakota, Rev. Codes 1895, sec. 1439; and Wyoming, Laws 1888, ch. 40, secs. 21 and 23; Dakota, Comp. Laws 1887, ch. 19, art. 1, sec. 2010. necessarily follow from possession, but possession from location." Nor can a relocation be made of mining ground in the possession of others who have initiated a location and are diligently proceeding therewith. They are entitled to a reasonable time to perform the necessary acts, and an attempted relocation during that time is merely a trespass. Where a locator has failed to perform the annual work required by the statute, a relocation may be prevented by a resumption of work by the original locator, his heirs, assigns, or legal representatives," after failure and before such location." Rev. Stat. 2324. This resumption of work will defeat the relocation, if made at any time before the completion of the relocation. The mere possession, however, by the original locator, without an actual resumption of work, will not prevent a relocation. A party may relocate his own claim. This is done where for any reason the original location is invalid.1 It would seem that as in such case the original location was no location, the second would not be a relocation within the definition given above. But it is so treated, doubtless upon the theory that the original location is abandoned, its invalidity being assented to by the locator. Thereupon a new location is made which in its method is essentially a relocation, for by it all of the acts properly performed in the first location are adopted. Such a relocation will not relate to the date of the original location so as to cut out intervening rights. It is therefore to be distinguished from the filing of an amended certificate, which is intended to cure a defect in an existing location, and does so relate.2 Where a claim is forfeited by tenants in common, it may be relocated by one of them either by himself or with others, provided there is nothing in the circumstances of the forfeiture to estop him.3 When a claim has been relocated, the expenditure of $500 required before patent will issue must be made upon the relocated claim. Work done previously to the relocation cannot therefore be included, though the original locator made or shared in the relocation. 1 Colorado, M. A. S. 3160; Wyoming, Laws 1888, ch. 40, sec. 7; Dakota, Comp. Laws 1887, ch. 19, art. 1, sec. 2008; New Mexico, Act Feb. 5, 1889, sec. 4, p. 42. 2 See Chap. VII., Div. III., C. (d). North Noonday M. Co. v. Orient M. Co., 1 Fed. United States. 522 (1880), C. C. D. Cal. The statute requires one hundred dollars' worth of work on each claim located after May 10, 1872, in each year, and in default thereof authorizes the claim to be relocated by other parties, provided the first locator has not resumed work upon it. But if the first locator resumes work at any time after the expiration of the year, and before any relocation is made, he may thereby preserve his right to the claim; and no other person has any right to relocate it after such resumption of work in good faith by the first locator, even though the latter had failed to perform any work for the period of one year or more immediately before he resumed work. Belk v. Meagher, 104, 279 (1881), affirming s. c. 3 Mont. 65. H. & W. had located the claim in 1864. This location was valid, and subsisting on May 10, 1872; but no work was done between that date and June, 1875. Then, no relocation having been made, the original locators or their grantees resumed work and did sufficient work to re-establish their rights. This work secured the claim until January, 1877. On Dec. 19, 1876, no further work having been done, and it not appearing that there was actual possession by the original locators, B. made a relocation, his entry being peaceable. Between that time and Feb. 21, 1877, he did a small amount of work, occupying not more than two days' time, his possession being only such as arose from his relocation and occasional labor. On Feb. 21, 1877, the The decision defendants entered peaceably and made a relocation. was in favor of the validity of the latter title. Waite, C. J.: "Mining claims are not open to relocation until the rights of a former locator have come to an end. A relocator seeks to avail himself of mineral in the public lands which another has discovered. This he cannot do until the discoverer has in law abandoned his claim, and left the property open for another to take up. The right of location upon the mineral lands of the United States is a privilege granted by Congress, but it can only be exercised within the limits prescribed by the grant. A location can only be made where the law allows it to be done. Any attempt to go beyond that will be of no avail. Hence a relocation on lands actually covered at the time by another valid and subsisting location is void; and this not only against the prior locator, but all the world, because the law allows no such thing to be done." B.'s relocation was consequently invalid until Jan. 1, 1877. It was likewise invalid after that date. "The right to the possession comes only from a valid location. Consequently, if there is no location there can be no possession under it. Location does not necessarily follow from possession, but possession from location. A location is not made by taking possession alone, but by working on the ground, recording and doing whatever else is required for that purpose by the acts of Congress and the local laws and regulations. As in this case all these things were done when the law did not allow it; they are as if they had never been done." "A location to be effectual must be good at the time it is made. When perfected it has the effect of a grant by the United States of the right of present and exclusive possession. As the proceeding to locate is one in which the United States is not directly an actor, but is carried on |