tion of the expenditures hereby, the co-owners 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 90 days, and if at the expiration of 90 days after such notice in writing or by publication such delinquent should fail or refuse to contribute his proportion of the expenditure required of this section, his interest in the claim shall become the property of his co-owners who have made the required expenditure." 46

In mining communities, this is commonly called "advertising out." This provision extends to tunnel claims." This right only exists in favor of a person who was a co-owner for the year in which the work was done and at the time the notice was given.48

49

It has been held that this statutory remedy in favor of coowners is exclusive and that there is no implied contractual or personal liability by each owner for his share. The only recourse of the co-owner or co-owners doing the required work is to forfeit the property by the above statutory method. Many of the States have enacted statutory provisions concerning this form of forfeiture, usually in the exact language of the United States statute. Their validity is doubtful, except possibly as to the provisions for recording proof of notice.50

The second way in which rights in a location may be lost is by abandonment. Abandonment is the voluntary relinquishment and giving up of the possession of a claim, with the intent of no longer occupying or retaining the same. It is a matter solely of the intention of the owner, and is a question of fact for the jury.51

This intention, however, must be evidenced by some act, which act may consist of statements or admission, or physical acts, such as leaving the claims and removing all tools therefrom. But proof of any of these things would not be conclusive evidence of intention. It would only be persuasive evidence tending to prove it; still in the absence of other evidence giving some other reasonable explanation it would probably be sufficient proof of intention to sustain a forfeiture. The courts have held that

4 R. S., sec. 2324.

47 Copp's "Mineral Lands," p. 222. 48 Turner vs. Sawyer, 150 U. S., 578.

49 Turner vs. Sawyer, 150 U. S., 578; Elder vs. Horseshoe, etc., Co., 9 S. Dak., 336, 70 N. W., 1060; Billings vs. Aspen, etc., Co., 51 Fed., 338.

50 Snyder on Mines, secs. 533-534.

51 Aye vs. Philadelphia, etc., Co., 44 Atl., 555; Davis vs. Dennis, 85 Pac., 1079 (Wash.).

53

abandonment consists of an intent coupled with a voluntary act in pursuance thereof.52 It cannot be presumed from mere lapse of time. But lapse of time is persuasive evidence of its existence. The statute of limitations has nothing to do with it.55 Neither does it involve an estoppel. The intention to abandon. operates instanter, and the land reverts to its original status as a part of the public domain.56

Going away from a claim without intention of returning to it, regardless of what becomes of it, amounts to an abandonment.57 If the owner or claimant of a mining claim consents to or encourages the locating of the claim by another person, this amounts to an abandonment of all rights therein by such previous owner or claimant.58 If, after working on a claim and concluding it is worthless, the locator destroys the monuments and goes away with the intention of having nothing more to do with the same, it is an abandonment.59 If the owner of a claim moves his effects from it and absents himself for two years, and knowingly allows a purchaser under an erroneous sale to work on the claim with the intention of only asserting rights thereto if it should turn out to be valuable, the original owner's action would constitute an abandonment in law.60 Evidence of the general belief of the community is not sufficient to prove an abandonment. Being driven away from the claim by Indians is not an abandonment.62 One person cannot prevent another from going on a claim and then allege abandonment against him.63 A conveyance or gift of a claim is not an abandonment. Leaving tools at a mine

52 Larkin vs. Sierra Min. Co., 25 Fed., 337; Mallett vs. Uncle Sam Min. Co., 1 Nev., 188; Waring vs. Crow, 11 Calif., 366; Bell vs. Bed Rock Tunnel Co., 36 Calif., 214; Jones vs. Mallory, 45 Calif., 299; Murley vs. Ennis, 2 Colo., 300; Davis vs. Dennis, 85 Pac., 1079.

53 Partridge vs. McKinney, 10 Calif., 180.

54 Mallett vs. Uncle Sam Min. Co., 1 Nev., 188.

55 Davis vs. Butler, 6 Calif., 510.

56 Come vs. Aberto, 76 Pac., 369 (Colo.); Derry vs. Ross, 5 Colo., 295; Müller vs. Homley, 74 N. W., 980; Brown et al. vs. Gurney et al., 26 Sup. Ct., 500 (U. S. Supreme Ct., 1906).

57 Derry vs. Ross, 5 Colo., 295; Stone vs. Geyser Co., 52 Calif., 315; Bell vs. Bed Rock, etc., Co., 36 Calif., 214.

58 Come vs. Aberto, 76 Pac., 369.

59 Kinney vs. Fleming, 56 Pac., 723.

60 Trevaskis vs. Peard, 111 Calif., 599.

61 Phenix Mill Co. vs. Lawrence, 55 Calif., 143.

62 Morenhaut vs. Wilson. 52 Calif., 263; Taylor vs. Middleton, 67 Calif., 656

63 Craig vs. Compton, 10 Calif., 517; Miller vs. Fletcher, 101 Calif., 142; Garvey vs. Elder, 109

N. W. 508.

64 Little Pittsburg M. Co. vs. Annie M. Co., 17 Fed., 57; Manuel vs. Wulff, 152 U. S., 505; Richardson vs. McNulty, 24 Calif., 339.

65

tends to disprove abandonment. Neither forfeiture nor abandonment becomes operative until some person in good faith has made an entry and relocated the property in the manner required by law on previously unclaimed land. Until this has occurred, the original locator may reënter and resume his rights in the claim by virtue of the provision of the statute that claims on which there has been a failure to do the annual representation work shall only be open to location "provided that the original locators, their heirs or assigns or legal representatives, have not resumed work upon the claim after failure and before such, location." 68

What constitutes such a "resumption" as will prevent a forfeiture is an unsettled question. About the only general rule that can be laid down about it is, that the first owner must have begun work in good faith with the bona fide intention of continuing it until the $100 worth had been completed. Where the locators of a claim were at work on the thirty-first day of December, and that night left their tools in the cut intending to resume work next morning at the usual time, which they did, their possession and work were in law continuous; and one who made a relocation in the night during their absence was a trespasser and acquired no rights by such relocation.68

It has been held that it is sufficient to resume work after the initial acts of the relocation had been done, but before the location was completed according to law; but this seems to be an erroneous and unreasonable construction of the statute. If the ground is forfeited, it is the same as any other unappropriated part of the public domain, and the prospector has the same rights therein. Consequently, if the acts of a second location were begun before resumption of work by the original locator and afterward completed according to law, such resumption pending the second location should not deprive the second locator of his rights.70 It has been held that the original locator may relocate

65 Crown Point M. Co. vs. Crismon, 65 Pac., 87; Beals vs. Cone, 62 Pac., 948; Lakin vs. Sierra Buttes Co., 25 Fed., 337; Lacy vs. Woodward, 25 Pac., 785.

66 R. S., sec. 2324.

67 McCormick vs. Baldwin, 104 Calif., 227, 37 Pac., 903; Hanaker vs. Morton, 11 Mont., 91, 27 Pac., 397.

68 Willett vs. Baker, 133 Fed., 937.

69 Jordan vs. Duke, 53 Pac., 197.

70 Pharis vs. Muldoon, 17 Pac., 70; Slavonian Co. vs. Perasich, 7 Fed., 331; Du Pratt vs. James, 65 Calif., 555.

a claim which he has lost by abandonment or forfeiture, if such relocation is made in good faith and not merely for the purpose of avoiding the representation work." In spite of the holding of the cases just cited, Lindley 72 and Morrison 73 in their treatises on mining law hold that there is a distinction between the rights of the original locator and third parties in the above circumstances; that for the original locator to relocate a claim is an evasion of the requirements of the statute as to representation work, and is a plain fraud and therefore void. On principle this would seem to be the correct view. Snyder 4 takes the contrary view, holding that, upon forfeiture, the land is again public domain open to relocation by any one, not excluding the former locator.

74

In making a relocation the discovery and monuments (with new notices placed thereon) of the former locator may be adopted; but where the local statute requires a 10-ft. shaft or other preliminary work, the old shaft must be sunk 10 ft. deeper or a new shaft dug, and the recorded notice should state that it is a relocation unless the original location was invalid.75 A relocation does not relate back to the original as does an amended location. Under the relocation none of the work done under the original location can be counted, but the full $500 worth of work must be done to entitle the claimant to a patent.76 So long as a prior location of a mining claim subsists no rights in any of the ground covered by such claim can be acquired by a junior locator, because 'mining claims are not open to relocation until the rights of a former locator have come to an end."77

After the issuance of a certificate of purchase in a proceeding to obtain a patent, claims are subject neither to forfeiture nor relocation. 78

ESTATE OF OWNER OF MINING CLAIM

Although a location is held by a possessory right, and this right is maintained by the performance of a certain amount of

71 Warnock vs. De Witt, 40 Pac., 205; Cheesman vs. Shreeve, 40 Fed., 787.

72 Lindley on Mines, sec. 405.

73 Morrison's "Mining Rights," 12th ed., p. 112.

74 Snyder on Mines, sec. 583.

75 Little Gunnel Co. vs. Kimber, Fed. Cas., 8402; Armstrong vs. Lower, 6 Colo., 393.

76 Golden Fleece, etc., Co. vs. Cable, etc., Co. 12 Nev., 312; Belk vs. Meagher, 104 U. S., 279; Erhardt vs. Boaro, 113 U. S., 527; Ferguson vs. Belvoir, etc., Co., 14 L. D., 43.

77 Porter vs. Tonopah, etc., Co., 133 Fed., 750; Last Chance M. Co. vs. Bunker Hill, etc., Co., 49 Fed., 430; Lockhart vs. Farrell, 86 Pac., 1077 (Utah). But see p. 125 where doubt is explained. 78 Southern, etc., M. Co. vs. Sexton, 82 Pac., 423 (Calif.).

79

labor on the location annually, the estate of the holder or owner of such claim is an estate of inheritance in land or "real estate." This estate may be sold on execution, but no dower right attaches thereto. It is governed by the general rules of real property as to conveyance, descent, form of action concerning, etc., subject to the paramount title of the United States.80 The rights of mineral locators are of as high an order as those of agricultural settlers or homesteaders.80 However, in Oregon and Washington mining claims have been held to be personal instead of real property. 81 Where the locator of a mining claim on public land has complied with all the conditions necessary to entitle him to a patent, his estate in the land is not perceptibly different from that acquired by an entryman of agricultural land.82

PATENTING

When a location is made, and representation work performed according to law, the locator or his heirs and assigns can hold. the property indefinitely and need never obtain a patent therefor. However, if the development proves the property to be of value it is usually advisable to obtain a patent from the Government, which gives an absolute title in fee to the owner the same as agricultural land, but subject to the statutory extralateral rights of other claims. This conveys to the grantee all the estate of the United States in the surface, and all beneath save what is excepted by the United States mining statutes. The patent is

79 In law an estate in land is the interest or right that any person has in such land considered with reference to the extent, nature, quality, and degrees of such interest.

Considering interests in land, with reference to the quantity of interests that persons may leave therein, they are divided into:

(1) Estates of Freehold. - These are estates of indefinite duration such as during the life or lives of some person or persons, or during a man's lifetime, then devolving to his heirs, so long as any heirs exist.

(2) Estates of less than freehold, which are chiefly such as grow out of contract and endure only for a fixed period or during the will of some person.

An estate of inheritance is a variety of freehold estate, and is such a one that not only does the tenant hold it during his life, but after his death it vests by operation of law in his heirs. It is subject to execution because it is property; and property in general is subject to be sold on execution to satisfy debts. But a mining claim, although an estate of inheritance, is only an estate of possession, being dependent upon the performance of annual labor to the amount of $100 to hold the same; therefore no dower rights attach. Belk vs. Meagher, 104 U. S., 279; Forbes vs. Gracey, 94 U. S., 763; Gwillim vs. Donellan, 115 U. S., 45.

80 Roseville, etc, Co. vs. Iowa Gulch Co., 15 Colo., 29; Bakersfield, etc., Co. vs. Kern County, 77 Pac., 892; Butte Co. vs. Frank, 65 Pac., 1.

804 Southern Calif. Ry. Co. vs. O'Donnel, 85 Pac., 932.

81 Herron vs. Eagle, etc., Co., 61 Pac., 417; Phonix, etc., Co. vs. Scott, 54 Pac., 777.

82 Tyee Consol. M. Co vs. Langsteat, 136 Fed., 124, 69 C. C. A., 548.