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work or make improvements, which is a condition subsequent to the enjoyment of the right.9 In setting up forfeiture of another's rights, as the foundation of adverse rights, it is incumbent upon the pleader to plead the forfeiture specially and state the facts constituting the forfeiture,10 and the burden of proof will be upon him to show affirmatively that the necessary work was not done.11

1 McKnight vs. Kreutz, 51 Pa. St. 232; s. c., 53 Pa. St. 319; Von Schmidt vs. Huntington, 1 Cal. 70; Wiseman vs. McNulty, 25 Cal. 230.

2 Rev. Stat. U. S., § 2324; ante, p. 15.

3 Bell vs. Bed Rock Co., 36 Cal. 214; McGarrity vs. Byington, 12 Cal. 427. But see King vs. Edwards, 1 Mont. 235.

4 Coleman vs. Clements, 23 Cal. 248.

5 Wiseman vs. McNulty, 25 Cal. 230; Brady vs. Lee, 38 Cal. 362. 6 STONE, J., in Graydon vs. Hood, Morrison's Mining Rights (4th ed.), 65.

7 HALLETT, J., in Little Gunnell Co. vs. Kimber; id.

8 Bell vs. Bed Rock Co., 36 Cal. 214: infra § 33, where the two are distinguished.

9 St. John vs. Kidd, 26 Call. 263; King vs. Edwards, 1 Mont 235. 10 Morenhaut vs. Wilson, 52 Cal. 263 (overruling Bell vs. Brown, 22 Cal. 671); Dutch Flat W. Co. vs. Mooney, 12 Cal. 534.

11 Oreamuno vs. Uncle Sam G. & S. M. Co., 1 Nev. 215.

§ 31. Relocation of entire claim forfeited.-In relocating claims forfeited for failure to perform annual labor, the same acts are required as in an original location. The language of the statute1 is: "The claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made," etc. It is a question whether the provision that "no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located,”2 would apply so as to require a new discovery of mineral. Certainly all the acts of location must be original with the relocator, as they

were with the original locator.3 As has already been noticed, the resumption of work at any time prior to the completion of the relocation may rehabilitate the owner of the claim with all the rights lost by his previous failure. And this resumption may take place at any time after the lapse of successive years in which such failure has occurred, with like effect as though the claimant had failed for but a single year, provided the claim was not abandoned.5

1 Rev. Stat. U. S., § 2324; ante, p. 15. 2 Rev. Stat. U. S., § 2320; ante, p. 14.

3 Strong vs. Ryan, 46 Cal. 33.

4 Ante, § 30.

5 It has been held in substance that one cannot enter to relocate while the original locator, who has failed to perform the necessary labor is in possession. Bradley vs. Lee, 38 Cal. 362.

§ 32. Relocation of claims forfeited to co-owners.— It has been decided that one of several co-owners of a mine, upon which there has been a failure to perform the amount of labor required by district rules, might treat it as abandoned property and relocate it in the name of himself and others, and thus appropriate the interest of a coowner who failed to contribute. The authority of this case is questionable even under district rules that did not render the failure to perform labor ipso facto an abandonment of the claim. There is no doubt that it would be inapplicable under the law of Congress governing the question of forfeiture and prescribing the method by which it might be taken advantage of by co-owners.2 That provides that for failure to contribute his proportion of the expenditures, he will be subject to the process which is popularly known as "advertising out.” That is by notice served personally or by publication, and the expiration of ninety days after such service is complete, and a continued failure to respond, his interest is divested

and passes to his co-owners who have made the required expenditure.

1 Strong vs. Ryan, 46 Cal. 36.

2 Rev. Stat. U. S., § 2324; ante, p, 15.

§ 33. Abandonment.-This is quite a different matter from forfeiture. It is true that the rights of the owner of an unpatented claim may be forfeited by abandonment, or failure to work, may be evidence of abandonment;1 but forfeiture for failure to work may be either voluntary or involuntary, and may be cured by resuming work at any time before adverse rights are acquired;2 while abandonment must always be voluntary and utterly extinguishes all right as soon as it occurs, leaving the original owner on the same footing, with respect to that claim, as any stranger.3 Abandonment may take place within the year for which the labor is due, and even after the year's labor is performed. The intention is a mixed question of law and fact. Failure to pay assessments is not conclusive, unless made so by statute or some district rule in force at the time; but if the failure to pay assessments or perform work was in pursuance of an intention to abandon the claim it will suffice to prove abandonment.5 The statement of the party himself may be introduced in his own behalf as part of the res gestæ, to disprove that he had abandoned the claim.6 Leaving tools upon the ground is also evidence of an intention to return;7 absence and nonuser for any time short of the statute of limitations, does not show abandonment;8 but connected with other circumstances may have that tendency ;9 so, a gift of the claim to another, by leaving it with the intention that the donee take possession, which he does, instead of tending to prove abandonment, proves the contrary.10 Evidence of an offer to purchase and a refusal on the part of plain

tiff to sell, was held as tending to disprove his abandonment of the claim.11 The judgment roll in a former case, in which plaintiff successfully sued another party for possession, is competent to rebut evidence of prior abandonment.12 A second location on the same ground is not necessarily an abandonment of the first location.13 The burden of proof rests with the party relying on an abandonment as a basis of title or right.14 But it may be shown by defendant, under a denial by defendant of plaintiff's title, without being specially pleaded.15 In this respect it differs from a} forfeiture. By the latter the rights of the locator are not absolutely lost, but only subject to appropriation by another, and must be specially pleaded, while by the former there is nothing further required to divest the rights of a party who has abandoned.16 Of course the doctrine of abandonment only applies to claims held by possessory right, and not to those where the legal title is vested in the claimant.17 The relocation of abandoned claims is governed by substantially the same rules that govern any original location.18

1 Depuy vs. Williams, 26 Cal. 309; Oreamuno vs. Uncle Sam, &c. Co., 1 Nev. 215.

2 Supra, § 30.

8 Welll vs. Lucerne M. Co., 11 Nev. 215; St. John vs. Kidd, 26 Cal. 263; Mallett vs. Uncle Sam M. Co., 1 Nev. 194; Waring vs. Crow, 11 Cal. 366; Davis vs. Butler, 6 Cal. 510; Davis vs. Gale, 32 Cal. 26; Morenhaut vs. Wilson, 52 Cal. 263; Lechler vs. Chapman, 12 Nev. 66; Derry vs. Ross, 1 Col. Law Rep. 243. (Sup. Ct. Col., Dec. term 1880.)

4 Merley vs. Ennis, 2 Col. 300.

5 Oreamuno vs. Uncle Sam, &c. Co., 1 Nev. 215; Strong vs. Ryan, 46 Cal. 33; McGarrity vs. Byington, 12 Cal. 431.

6 Noble vs. Sylvester, 42 Vt. 146; but his testimony as to his intention is not conclusive. Meyers vs. Spooner, 55 Cal. 257.

7 Harkness vs. Barton, 39 Iowa, 101; Morenhaut vs. Wilson,

supra.

8 Davis vs Butler, 6 Cal. 510; Mallett vs. Uncle Sam, &c. M. Co.,

1 Nev. 188.

9 Davis vs. Gale, 32 Cal. 26.

10 Richardson vs. McNulty, 24 Cal. 339. (But see Merley vs. Ennis, 2 Col. 300.)

11 Bell vs. Bed Rock Co., 33 Cal. 214.

12 Richardson vs. McNulty, 24 Cal. 339.

13 Weill vs. Lucerne M. Co., 11 Nev., 201.

14 Oreamuno vs. Uncle Sam, &c. Co., supra.

15 Bell vs. Bed Rock Co., 36 Cal. 214; Morenhaut vs. Wilson, 52 Cal. 263.

16 Morenhaut vs. Wilson, supra. 108.

17 Ferris vs. Coover, 10 Cal. 589.

Atkins vs. Hendree, 1 Idaho,

18 Murley vs. Ennis, 2 Col. 300; Golden Fleece Co. vs. Cable Con. Co. 12 Nev. 312.

§ 34. Surface rights acquired by location.-It is not understood that any title to the mining property is acquired by location, as against the Government of the United States. The locators have merely a present right of exclusive possession and a preference-right of entry, and purchase. Still these rights, such as they are, are characterized as vested rights, and the right to an unpatented claim is not divested by a patent for agricultural land including the mineral claim.3 His right to the surface within his boundaries is exclusive in its possessory character, and even before the enactment of the statute, by which he was allowed all side veins on the ground located, no one could enter upon his claim for the purpose of prospecting for such supposed veins. They were required to be discovered outside, before they could be followed within the boundaries of the claim regularly located. Since the act of May 10, 1872,5 the exclusive right to the surface includes the right to possess and enjoy all veins, lodes and ledges throughout their entire depth, etc., which lie inside of such surface lines; and this provision applies as well to all prior locations where no ad

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