CHAPTER IX. HOW MINING CLAIMS ARE HELD. - ASSESSMENT WORK. AFTER the location of a mining claim is completed and the title thereto is vested in the locator, he retains this until a patent is issued to him, but only upon the condition that he works upon and improves the claim. This obligation is prescribed and regulated by Rev. Stats. 2324, which requires that " on each claim located after the tenth day of May, eighteen hundred and seventy-two, and until a patent has been issued therefor, not less than one hundred dollars' worth of labor shall be performed or improvements made during each year. On all claims located prior to the tenth day of May, eighteen hundred and seventy-two, ten dollars' worth of labor shall be performed or improvements made by the tenth day of June, eighteen hundred and seventy-four, and each year thereafter, for each one hundred feet in length along the vein until a patent has been issued therefor;" and the act of Jan. 22, 1880, which in addition provides: "That the period within which the work required to be done annually on all unpatented mineral claims shall commence on the first day of January succeeding the date of location of such claim, and this section shall apply to all claims located since the tenth day of May, Anno Domini eighteen hundred and seventy-two." The policy of these provisions is stated by Miller, J., in Chambers v. Harrington, 111 U. S. 350, as follows: "It is not difficult, in looking at the policy of the government in regard to its mineral lands, to understand the purpose of this provision. For many years after the discovery of the rich deposits of gold and silver in the public lands of the United States, millions of dollars' worth of these metals were taken out by industrious miners without any notice or attention on the part of the government. The earliest legislation by Congress simply recognized the obligatory force of the local rules of each. mining locality in regard to obtaining, transferring and identifying the possession of these parties. Later, provision was made for acquiring title to the land where these deposits were found, and prescribing rules for the location and identification of claims, and securing their possession against trespass by others than their discoverers. But in all this legislation to the present time, though by appropriate proceedings and the payment of a very small sum, a legal title in the form of a patent may be obtained for such mines, the possession under a claim established according to law is fully recognized by the acts of Congress, and the patent adds little to the security of the party in continuous possession of a mine he has discovered or bought. "These mineral lands being thus open to the occupation of all discoverers, one of the first necessities of a mining neighborhood was to make rules by which this right of occupation should be governed as among themselves; and it was soon discovered that the same person would mark out many claims of discovery and then leave them for an indefinite length of time without further development, and without actual possession, and seek in this manner to exclude others from availing themselves of the abandoned mine. To remedy this evil a mining regulation was adopted that some work should be done on each claim in every year, or it would be treated as abandoned." Representation is thus the muniment of the locator's title. Having performed the labor required for the year, his title is complete to the end of the next year. The failure to perform the requisite labor by the end of the year works a forfeiture of his claim, and it is open to relocation. Rev. Stats. 2324. But this forfeiture does not take place until the year has expired, and it may even then be cured by the performance of the work, provided no new right intervenes by the relocation of another between the expiration of the year and the performance of the work, or in the words of the act," provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location." It follows that continued possession without the necessary work will not hold the claim, nor can the original locator who has failed to do his work prevent a peaceable entry for the purpose of relocating the claim. Resumption may however defeat relocation if made at any time before the performance of all the acts necessary to complete the location. But the resumption must be in good faith, i. e. the work must be resumed with the intention of completing it and be pursued with reasonable diligence. The obligation to do annual work ceases upon the payment of purchase-money to the government and the issuance of the receiver's certificate. After that the claim cannot be relocated for failure to perform work. It is likewise provided by this section of the Revised Statutes: "Upon the failure of any one of several co-owners to contribute his proportion of the expenditures required hereby, the coowners who have performed the labor or made the improvements may, at the expiration of the year, give such delinquent co-owner personal notice in writing, or notice by publication in the newspaper published nearest the claim, for at least once a week for ninety days, and if at the expiration of ninety days after such notice in writing or by publication such delinquent should fail or refuse to contribute his proportion of the expenditure required by this section, his interest in the claim shall become the property of his co-owners who have made the required expenditures."1 See L. O. Regs., par. 6. This provision for forfeiture is strictly construed, and any irregularity in the proceedings will be taken advantage of to defeat it. It can be enforced only by one who was a coowner at some time during the year when the work should have been done, and the notice must be to the owner at the time of the proceeding. And, of course, if there has been no failure, the publication of a forfeiture notice will be without effect. Work done for the purpose of discovering minerals, no matter what the particular form or character of the deposit which is the object of the search, is within the spirit of the statute. The law makes no distinction whatever between lode and placer claims as regards the annual work necessary to the preservation of the claim to the locator thereof.2 The work may be of any character, if it be in good faith intended for the development of the claim. It need not be actually upon the surface ground or within the boundaries of the claim. It may be beyond them, but must be for the purpose of prospecting or developing the claim sought to be held. If done within the boundaries of the claim, the work will be available though it be 1 The preservation by record of proof p. 219; Nevada, Act March 5, 1887, of delinquency and of contribution is pro- p. 136. vided for in Arizona, Act March 19, 1891, p. 140; California, Act March 31, 1891, 505. 2 See Circular, March 24, 1887, 8 L. D. upon a vein having its apex in another claim. It need not be upon the surface, but may be beneath it. What such work may consist of may be, and has been, defined by statutes.1 The question of good faith is one for the jury. The value of the work is a question of fact to be determined from the evidence. In New Mexico it is fixed by statute.2 Actual expenditure for the labor is not the test, though it is evidence of value. The work may be shown to be worth more or less, and when there is conflicting testimony, consideration is to be given to the endeavors of the locator to comply with the law. It is also sufficient if the work be done; it is of no consequence that it is not paid for. Performance may be excused if it is prevented by subsequent adverse claimants. This prevention may take the form of threats; but if so, in order to be an effectual excuse, they must be made on or near the ground, and be of such a character as to satisfy a man of ordinary prudence that it would be unsafe to begin work. Otherwise they must be accompanied by some overt act showing a present intention of carrying them into effect. Performance of work may also be excused in exceptional cases for some unusual natural condition rendering work useless. "Where such claims are held in common, such expenditure may be made upon any one claim." Rev. Stats. 2324. But work upon one claim to hold claims held in common must have relation to a series of contiguous claims.3 It must be in pursuance of a system intended and adapted to develop all the claims, and not for the advantage of one only, and must equal in value the aggregate amount required by the law to hold all the claims separately. Whether the work was done for the benefit of the series of claims is a question of fact for a jury. It has been held in Montana that a placer claim of one hundred and sixty acres located by an association is a single claim within the meaning of the statute, upon which $100 worth of labor per annum is sufficient.* The act of Jan. 22, 1880, does not have a retroactive effect so as to prevent a forfeiture which has already occurred. Its effect was to extend the time for the performance of work of the 1 Amendment of Feb. 11, 1875, to Rev. Stats. 2324; California, Act March 31, 1891, p. 219; Colorado, M. A. S. 3137; Nevada, Gen. Stats. 1885, sec. 826; Wyoming, Laws 1888, ch. 40, sec. 23. 2 Comp. Laws 1884, sec. 1568. 3 The requirement that the claims must be contiguous seems to be without exception. Gird v. California Oil Co., 60 Fed. 531, post. 4 See note 1 on p. 277. then current years to December 31 of the succeeding year, so that the following years should all correspond with the calendar year and not date from the location. Whenever there is a direct conflict between the law and the local regulations, the law must prevail; therefore neither the statute of a State nor a rule among miners of a district can authorize a less annual expenditure than $100 or its equivalent in work in order to preserve the claim to the locator. But a rule requiring a greater annual expenditure would be valid and binding on the locator. Rev. Stats. 2324 distinctly provides that the miners may make regulations governing the amount of work necessary to hold possession of a claim, subject to the requirement that not less than $100 worth of labor shall be performed or improvements made during each year.1 The annual expenditure must continue after application for patent and until final entry; that is, until payment of the purchase-money and the issuance of a certificate, even though entry is prevented by the pendency of proceedings on an adverse claim. The expenditure after application is of importance only to prevent relocation, and if no relocation is made in the interval between application and entry, the government will not take advantage of the failure to perform annual work during that time. In some States there are provisions for the preservation of evidence of the performance of assessment work by recording sworn statements which become prima facie evidence of the facts required to be stated, but do not preclude other methods of proof.2 Rev. Stats. 2324 was suspended so that no claim should be forfeited for non-performance of the annual assessment for 1893 and 1894, except in South Dakota, provided the claimant filed in the office where the location certificate was filed, a notice that he intended in good faith to hold and work his claim.3 United States. Mt. Diablo M. & M. Co. v. Callison, 5 Sawy. 439 (1879) C. C. D. Nev. "Work on a claim is work done anywhere within the lines upon the surface, and anywhere within 1 Colorado, M. A. S. 3137; Washington, Gen. Stats. 1891, sec. 2213; Wyoming, Laws 1888, ch. 40, sec. 23. 2 Arizona, Act March 20, 1895, secs. 9 and 10, p. 55; California, Act March 31, ; Colorado, M. A. S. 3161; uaho, Act March 5, 1895, sec. 6, p. 26; 1901 Montana, Pol. Code 1895, sec. 3614; Ne- 3 Act Nov. 3, 1893, ch. 12, 28 Stat. 6; Act July 18, 1894, ch. 143, 28 Stat. 114. |
