6

phrase held in common' is where there are more owners of the claim than one, while the use of the word 'claims' held in common, on which work done on one of such claims shall be sufficient, shows that there must be more than one claim so held, in order to make the case where work on one of them shall answer the statute as to all of them." Where several claims are held in common, it is in the line of the policy adopted by the government in regard to annual work to allow the necessary work to keep them all alive to be done on one of them. "But obviously on this one the expenditure of money or labor must equal in value that which would be required on all the claims if they were separate or independent. It is equally clear that in such case the claims must be contiguous, so that each claim thus associated may be in some way benefited by the work done on one of them."

"In the case before us the appellees became successively owners of three claims contiguous to each other, supposed to be located on the same lode. These were, first, the Parley's Park claim; second, the Central; and third, the Lady of the Lake. They continued their work on the Parley's Park claim from 1872 until July 19th, 1878, when they transferred it to the Lady of the Lake claim, and did no more work on the other until September 13th, 1879, when one Cassidy, claiming that the Parley's Park claim was forfeited for want of work on it for more than a year, located a mining claim called the 'Accidental,' which embraces the premises in dispute, and which is part of the Parley's Park claim.

"This claim of Cassidy — the Accidental is the one on which appellants, who became its owners, now rely, and if the work done on the Lady of the Lake is not work done in common on the three claims of appellees, within the meaning of the statute, the claim of the appellant must prevail.

"The finding of facts by the court below on that point is as follows:

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"5th. That during the year beginning on the 19th of July, 1878, the owners of the Parley's Park claim were also the owners of two certain claims, called respectively the "Central" and "Lady of the Lake" the Central adjoining the Parley's Park and the Lady of the Lake adjoining the Central mining claim - and that, with a view to the future working and development of all three of said claims, the owners thereof located what is called the "Main Shaft" in the Lady of the Lake surface ground. That said shaft is in such proximity to said Parley's Park mining claim that work in it has a tendency to develop said claim, and said shaft was located and intended for the purpose of developing all of said claims.

"I find that during said last-named year, work was prosecuted in said shaft, and by improvements made thereat exceeding in value $300, and of not less than $2,000 in value. No work was done in said year after July 19th, 1878, and prior to the 15th day of September, 1879, in Parley's Park surface ground, or within its limits, by the owners thereof.'

"We are of the opinion that this brings the case clearly within the principles we have laid down, and the work was effectual to protect the Parley's Park claim against an intruder."

Lakin v. Sierra Buttes Gold M. Co., 25 Fed. 337 (1885), C. C. D. Cal. One who has forfeited his claim by a failure to work it as required by the statute may re-enter and resume work at any time before other rights attach in favor of subsequent locators.

Aurora Hill Con. M. Co. v. 85 M. Co., 34 Fed. 515 (1888), C. C. D. Nev. An applicant for a patent to a mining claim who has made final entry, has paid the purchase-money for the land embraced in the survey of the claim, and has obtained his certificate of purchase therefor, is not obliged to continue the annual expenditure upon the claim required by Rev. Stat. 2324 pending final decision upon his application.

Benson M. Co. v. Alta M. Co., 145, 428 (1892). After application for patent and payment of purchase-money to the government, and the issuance of certificate of purchase, there is no obligation to do further annual work, and the claim cannot be relocated for failure to do so. Obviously Rev. Stats. 2324 does not provide for the acquisition of title to the land. It refers to the amount of work necessary to hold possession of a mining claim, "by which is meant to continue the mere possessory title."

Billings v. Aspen M. & S. Co., 51 Fed. 338 (1892), C. C. Ap., 8th Circ. It seems that a sale of a co-tenant's interest for default in payment of his share of annual expenditure is of no effect when he was dead, his co-locator had knowledge of his death, and notice was not addressed to his heirs.

Turner v. Sawyer, 150, 578 (1893). The provisions of Rev. Stats. 2324 for the forfeiture of the rights of co-owners for failure to pay their share of annual expenditure must be strictly construed. To entitle him to enforce such a forfeiture, one must be a co-owner at some time during the year for which the work was done. In Colorado, one who acquired an interest in a mining claim by purchase at a sheriff's sale in 1884, but to whom the sheriff did not deliver a deed until 1885, may not enforce a forfeiture for work of 1884.

Book v. Justice M. Co., 58 Fed. 107 (1893), C. C. D. Nev. The running of a tunnel for the purpose of prospecting, developing, and working two separate claims owned by the same person, though partly outside of both claims, is to be credited to both; and if the necessary amount of work is done, there is a sufficient compliance with the law.

The object of Nev. Stats. 1887, p. 136, sec. 2, is to prescribe a definite way in which proof of performance of work may be obtained, but it does not prevent the making of proof in any other way. The record is prima facie evidence of the facts stated therein, but failure to comply with the act does not work a forfeiture.

Oscamp v. Crystal River M. Co., 58 Fed. 293 (1893), C. C. Ap., 8th Circ. Mere failure during one year to perform the annual work required by Rev. Stats. 2324 does not divest title to a mining claim in favor of a junior overlapping location which is not thereafter relocated, and the resumption of work on the senior claim in the succeeding year restores to its owner all his original rights.

"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."

Actual possession is not necessary to protect the title to a welllocated mining claim. It is not of that precarious character for the reason that it is not exclusively dependent upon possession, but rests upon a statutory grant. The position of an overlapping junior locator is no better than that of any third party.

Gird v. California Oil Co., 60 Fed. 531 (1894), C. C. S. D. Cal. Eighty claims, embracing between eight thousand and nine thousand acres widely scattered over many miles of territory, through which were many mountain ranges and cañons, by sundry conveyances and leases vested in one person. These were located and worked for oil. It was contended that they constituted a consolidated claim, the working of which could be best done by one agency and pursuant to one general system, and that the expenditure upon such general system might be apportioned among all the claims, although work was not actually done on some of them. It was held, however, that this rule only applied to blocks of contiguous claims, and that work done on one claim in pursuance of a general system of development would not hold another claim not contiguous thereto. No exception to the rule is allowed in the case of oil claims, although the nature of that substance is such that a well sunk upon one claim might drain land at a great distance therefrom.

Failure to do annual work is not excused by threats where they have no application to the claim, but arises from a difference between the parties on an entirely distinct matter.

California.

McGarrity v. Byington, 12, 426 (1859). Work done outside of a mining claim with intent to work the claim, to be considered by intendment as work done on the claim, must have direct relation and be in reasonable proximity to it.

Bradley v. Lee, 38, 362 (1869). Where a mining rule requires a certain amount of labor to be done on each set of claims annually, and does not limit the extent of the claims, labor performed on one set of claims is sufficient to hold for one year all the contiguous sets of claims owned by the same party.1

Original Co. v. Winthrop M. Co., 60, 631 (1882). In ejectment for a mining claim which was located prior to May 10, 1872, the court charged that the locator of the claim must observe not only the act of May 10, 1872, requiring $10 worth of labor or improvements per annum for every one hundred feet, etc., but also the regulation of the district requiring "that work shall be done every sixty days on the claim." Held, error. There was a clear conflict between the law and the regulations, and the law must prevail.

Belcher Consolidated Gold M. Co. v. Deferrari, 62, 160 (1882). Plaintiff having expended in labor on two claims $100 in 1880, and in January, 1881, resumed work and expended $24 before defendant's entry and location in August, 1881, he is within the protection of Rev. Stats. 2324, and has not forfeited his rights.

The rule laid down in this case is the amount of work is equal to $100 for applicable at the present time, provided each claim.

Carney v. Arizona Gold M. Co., 65, 40 (1884). The provisions of Rev. Stats. 2324, as to annual work and relocation for failure to perform the same, apply to placer claims as well as to lode or vein claims. Du Prat v. James, 65, 555 (1884). The failure of a locator of a mining claim to perform the amount of labor required by the laws of the United States subjects the claim to relocation, and peaceable entry in good faith may be made for that purpose, although the claim be occupied by the original locator. The right of the original locator to perform the required amount of labor after such failure and retain the benefit of his location is dependent upon the performance of the labor before the relocation.

Personal expenses incurred and the value of the locator's time in endeavoring to procure water to operate a mill to crush ore from the mine, cannot be considered as work done on the claim.

Pharis v. Muldoon, 75, 284 (1888). Where a mining claim has become subject to relocation, the resumption of work thereon by the original locator, after a notice of relocation has been posted thereon, but before the relocator has marked the boundaries of his location, is sufficient to prevent the original location from lapsing. "The marking of boundaries is a necessary part of the location . . the defendant had resumed work after failure and before location.'"

De Noon v. Morrison, 83, 163 (1890). The owner of two mining claims held in common has the right to do annual work, necessary for the protection of both claims, on one; the question whether the work was intended for the benefit of both and tended to develop both is one of fact for the jury. A party making such expenditures is not required to prove title to the claim upon which the work was done if the title is not in dispute. It is sufficient to prove actual possession and improvement of such claim from which the law presumes ownership.

Richard v. Wolfling, 32 Pac. 971 (1893). A. having located a mining claim, shortly afterwards a patent was issued to S. for the south half thereof as agricultural land. All the work done by A. upon the mine was done on this southern part, and he obtained from S. a conveyance of the latter's title thereto. As against a third person seeking to relocate a part of the ground, A.'s location was valid.

Mills v. Fletcher, 100, 142 (1893). Where plaintiff had made a lawful location of a claim, and done the annual work thereon for 1889, and defendant entered thereon in 1890, attempted to make a new location and held exclusive possession thereof during that year, the latter may not set up as a defence to an action of ejectment the failure of the plaintiff to perform the work for 1890. The plaintiff had the entire year within which to do this work, and the defendant's entry was wrongful and his adverse possession excused the plaintiff as against him.1

Quigley v. Gillett, 101, 462 (1894). Where an adverse claimant sets up a title based on a location subsequent to that of the applicant for patent, the burden is upon such claimant to prove that the applicant has forfeited his right by failure to perform the annual work.

McCormick v. Baldwin, 104, 227 (1894). A party cannot hold a mining claim for several years without doing, in any year, the amount

1 See also Trevaskis v. Peard, 44 Pac. 246 (1896).

of work required, by simply going on it at the beginning of each year and doing a few hours' work with no bona fide intention to comply with the requirement as to the amount of work to be done. To resume work" within the meaning of Rev. Stats. 2324 is to actually begin work anew with a bona fide intention of prosecuting it as required by said section.

Colorado.

Sweet v. Webber, 7, 443 (1884). The provisions of Rev. Stats. 2324 as to annual expenditure apply alike to lode and placer claims. Neither a rule of miners nor a statute of a State can authorize a less annual expenditure than $100, without being in conflict with law of the United States and therefore void.

McGinnis v. Egbert, 8, 41 (1884). The law as to affidavits of labor performed on a location (M. A. S. 3161) fixes a limit beyond which the privilege of preserving the evidence by an ex parte affidavit is cut off, but requires no time to elapse after the work is done before the affidavit may be recorded. It is not an objection to an affidavit that it includes more than one claim.

If work is resumed on a claim after it has been open to relocation, but before relocation is actually made, the rights of the original locators stand as they would if there had been no failure.

Quimby v. Boyd, 8, 194 (1884). The amount paid for the labor is not conclusive that work of that value has been done, but the actual value of the work is the true test whether the law has been complied with. Where the testimony as to value is conflicting, it is proper to consider whether there has been a bona fide attempt to comply with the law.

Hall v. Hale, 8, 351 (1885). The act of Congress, Jan. 22, 1880, is not retroactive so as to divest a right already acquired under existing laws. It operated as an extension of the time within which such annual labor must be performed. One who previous to the passage of the act was entitled to the time until June 8, 1880, thereby became entitled to the rest of the year 1880 within which to perform his annual labor.

Pelican & Dives M. Co. v. Snodgrass, 9, 339 (1886). One who makes a discovery of mineral, and runs a tunnel thereon, and does no other act towards completing the statutory location, and for four years does no labor thereon, acquires no interest as against intervening rights. Nor can he after the four years perform the remaining acts necessary to a complete location, and have them relate back to the date of the original discovery, there being intervening rights.

Consolidated Republican Mountain Mining Co. v. Lebanon M. Co., 9, 343 (1886). The testimony as to the custom of a mining district in reference to requirements of work on claims twenty years before the trial being conflicting, it was held that such work was necessary on the ground that all miners' regulations and customs made development work or actual occupancy a condition of retention of a claim.

Bryan v. McCaig, 10, 309 (1887). In an action between claimants of a mining claim there was evidence to show that an ore-house built on the claim by the defendant was placed there for the use and benefit of another claim, and the court submitted to the jury the question of good faith and intention of defendant to make an improvement on the claim in question. Held, not error. To make it an improvement