tions relating to the prior application of Harrington had been properly disposed of upon their merits. Your decision on both points is, therefore, overruled, and you are instructed to order a hearing on the question of the abandonment of the prior location, made by Shaffer, Baxter, and France, May 23, 1872. The respective parties should be permitted to introduce evidence on this point. Evidence relating to the original location, the value and nature of the improvements and labor placed upon the claim, and when the labor was performed thereon; the nature of the possession of the premises, or acts or circumstances indicating an abandonment of the same, may be introduced. The hearing, however, should be confined to these points, viz. The abandonment of the location of Shaffer, Baxter, and France, prior to September 12, 1873, or prior to September 10, 1875; or, in other words, the validity of the location of Harrington et al., or of Harrington alone, at either or both of the dates above mentioned. In order that there may be no misunderstanding on this point, I will repeat the proposition in a different form: Should it be established that Shaffer, Baxter, and France had not abandoned their claim prior to September 12, 1873, the location of Harrington, Earnest, and Gun at that date was invalid, and no rights can be asserted thereunder; but it does not follow, that should it be shown that Shaffer, Baxter, and France abandoned their claim prior to September 10, 1875, Harrington has no right under his location of the last mentioned date. If the premises were subject to location at that date, the action of Harrington, Earnest, and Gun in 1873 would not affect the right of Harrington under his location of 1875; the question would be one simply between the locator and the Government, in the absence of an adverse claimant. Should it be found that Shaffer, Baxter, and France had abandoned the premises prior to September 12, 1873, and that the same were subject to relocation by Harrington, Earnest, and Gun, and were properly relocated at that date by them, Shaffer et. al. can base no rights upon a re-occupation of the premises in the absence of a proper relocation, for the reason that all rights based upon their location in May, 1872, were forfeited by abandonment and by the legal relocation of Harrington et al. in September, 1873, and have not been reasserted in the manner prescribed by law since that date. Should it be shown, however, that the relocation of Harrington et al. in 1873 was not according to law, and was invalid, even though the premises had been abandoned, and it is established that Shaffer, Baxter, and France had occupied the premises, as provided in section 2324 of the Revised Statutes, prior to the location of Harrington in September, 1875, and were in possession at that date, said location of Harrington was invalid, and must be treated accordingly. These points should be determined first, and should it be found that the relocation of the last named parties was valid, the application of Harrington for a patent should be determined upon its merits. Should it be found that both the relocation in 1873 and of 1875 were invalid, the application of Harrington must be rejected, and the application of France, Pontez et al. should be disposed of upon its merits. This hearing should be held before the local officers, after due notice given to all parties. If, in order to save expenses and to expedite the proceedings, the respective parties should agree among themselves to that effect, depositions may be taken before some other officer or officers authorized to administer oaths. This, however, should only be done with the consent of both parties, and with full opportunity for cross-examination. When the evidence is received, the question should be determined upon its merits. The papers in the case are herewith returned. C. SCHURZ, Secretary. Commissioner of the General Land Office. No. 10. Regulations in regard to relocations. GENERAL LAND OFFICE, Register and Receiver, Central City, Colorado. GENTLEMEN: * * * * The fifth section of said mining act (May 10, 1872) requires certain annual expenditures to be made upon mining claims, and provides that in case the required expenditures are not made, such claims shall be subject to relocation. It also declares the manner in which the title of the co-owners shall become forfeited upon their failure to contribute their proportion of the required amount specified in the act. If for purpose of changing surface boundaries, file evidence of title. The act of Colorado, approved February 13, 1874, declares the manner in which relocations may be made in that Territory. Where relocations are made under the Colorado act, by parties who have the possession and the right of possession to a mining claim, for the purpose of changing the surface boundaries, increasing the width of surface ground, or other reason, the parties who apply for patents for such mines should file a copy of the original notice of location, an abstract of title, tracing the record title from the original locators to the relocators, a copy of the relocation notice, and an abstract of any transfers made of the relocation.* If of abandoned mine, file proof of abandonment. Where parties make applications for patents for mines which have been relocated as abandoned, they should file with their application a copy of the relocation notice, and an abstract of all the transfers thereunder. They should also file proof, full, positive, and complete, in regard to the abandonment of the prior location, setting forth the facts necessary to show such abandonment.† Forfeiture of co-claimant. Where a party applies for a patent for a mine to which he claims the right of possession, by reason of the fact that Several Owners-Forfeited Claim.—If several, as tenants in common, locate a mining claim on the public lands, and by failure to comply with the local mining laws, forfeit the same, it may be relocated by a part of the first locators, along with others who were strangers to the first location; and the tenants in common whose names are left out in the notice of relocation, cease to have any interest in the mine. Strange v. Ryan, 46 Cal. 33. A party who insists upon a forfeiture or abandonment, and relies thereon to build up a right in himself to the thing, franchise, or easement forfeited or abandoned, is, upon first principles, bound to establish the fact or facts upon which his asserted claim or right depends. Doak v. Brubaker, 1 Nev. 217. his co-claimants have failed to contribute their pro rala share of the amount required by law to be expended annually, the applicant must file with his application for patent and other proofs, a copy of the original notice of location, an abstract of all transfers thereunder, and proofs that provisions of the fifth section of said mining act of May 10, 1872, were fully and strictly complied with by the party or parties who had made the required expenditures and improvements, and given notice thereof in due form to their co-claimants who had failed to contribute.* The proof in cases of abandonment and notice to coclaimants must be clear, positive, and in strict compliance with the statutes. * * * Very respectfully, U. J. BAXTER, Acting Commissioner. In regard to relocations. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, WASHINGTON, D. C., August 27, 1879. Register and Receiver, Sacramento, Cal. GENTLEMEN: Mineral entry No. 630, lot No. 49, made in your office, August 7, 1878, by John Smith upon the Smith. quartz mine, Greenwood mining district, is suspended for a duly certified copy of the mining laws of said district in force at date of location of claim, to wit, June 2, 1877. From an examination of the papers in this claim it appears that Smith's location is in fact a relocation of the premises. If applicant relocated as the owner he must furnish a duly certified copy of the original location, with certified abstract of title showing such ownership at date of his relocation. If his relocation was based upon the abandonment of a prior locator, applicant should furnish proof of such abandonment by affidavits of himself and other credible parties who are personally acquainted with the facts. Such affidavits should state the fact with all possible particularity, * Where a forfeiture of an interest in a mining claim for non-payment of assessments is claimed, under an agreement entered into by all the tenants in common forming the same, the parties claiming the benefit of the forfeiture must show an exact compliance on their part with all the conditions in the agreement, or they will not be entitled to the forfeiture. Wiseman v. McNulty, 25 Cal. 230. giving dates of occupation and abandonment with circumstances attending the same.* Respectfully, J. M. ARMSTRONG, Acting Commissioner. No. 11. Hearing ordered to establish identity of claim with location. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, WASHINGTON, D. C., January 15, 1880. Register and Receiver, Salt Lake City, Utah. GENTLEMEN: A re-examination of mineral entry No. 334, made November 23, 1878, by Frank H. Dyer and Ainos K. Smith, upon the Tilden Lode, together with the protest of John J. Jackson, John Olson, John Busick, and Henry Dalstrom, develops an uncertainty relative to the survey of the claim upon which patent is sought by applicants. Making no reference to the charges of bad faith and fraudulent procedure made against Amos K. Smith, I find it alleged by complainants, in substance, that the survey of said claim, No. 171, was not for the land originally located. It is asserted that the original claim was plainly marked upon the surface by stakes set at the time of location, and that said stakes were shifted some four hundred feet from their original location, and thereby threw the claim in conflict with the Harriet claim, which is upon a totally different lode than the Tilden proper, which was located, as alleged, parallel with the Harriet; and that the Tilden was so changed by survey from its original position as to leave no trace of identity. It is also alleged that five hundred dollars expenditures have not been placed upon the claim by applicants, as required by law, to entitle them to make application for patent. The Carriboo Lode was located May 23, 1874, and the same ground was relocated June 13, 1876, as abandoned property, under the name of the Tilden Lode. The locus of the claim is described in the location notice as follows, to wit: "The said Tilden Lode being situated about one fourth of a mile south-west from the mouth of Cottonwood Gulch, and about one thousand two hundred feet north-west of the spring above Stacy Williams' house, in Carr Fork, in Mining customs to be construed strictly against forfeiture. Coleman v. Clements 23 Cal. 248. |