In Original Co. v. Winthrop Min. Co., (1882) 60 Cal. 631, it was held that a local regulation which required "that work shall be done every sixty days on the claim," was in conflict with the Act of Congress as to the amount of work to be done each year.

The terms "work" and "labor" are not synonymous with the term "improvements." The former has reference to prospecting and excavating for the purpose of development, while the latter, though comprehensive enough to include everything signified by the former, has reference also to structures put in place or erected for the purpose of developing the property and extracting minerals contained in it; therefore, the pleading of a relocator that one hundred dollars worth of labor had not been done during the year and establishing this by proof is not sufficient to warrant a finding of forfeiture. Power v. Sla, (1900) 24 Mont. 243.

So long as

Need never apply for patent. the locator complies with the statutory requirements and performs the hundred dollars' worth of work in each year, he is entitled against all the world, subject to the paramount sovereignty of the United States, to hold and enjoy his possession. He may never apply for nor take out a patent, yet, so long as he does the acts required by this section he may hold and enjoy perpetually his claim. Gillis v. Downey, (C. C. A. 1898) 85 Fed. Rep. 487. See also Chapman v. Toy Long, (1876) 4 Sawy. (U. S.) 28.

As between the locator and the general government the failure to do the annual assessment work does not result in a forfeiture. It is not necessary to perform the annual labor except to protect the rights of the locator against parties seeking to initiate title to the same premises. It is the location by a new claimant and not a mere lapse of time which determines the right of the original locator. Beals v. Cone, (1900) 27 Colo. 501.

Holder of certificate of purchase. - One who has made application to the proper land office for a patent to a mine, paid the price required by law, and obtained the ordinary certificate of purchase, has a complete equitable right, and there is no obligation to do any further annual work. Benson Min., etc., Co. v. Alta Min., etc., Co., (1892) 145 U. S. 428. See also Aurora Hill Consol. Min. Co. v 85 Min. Co., (1888) 34 Fed. Rep. 515.

When a receipt has been obtained from the land office by fraud, the party is not relieved from the necessity of doing the representation work. Murray v. Polglase, (1899) 23 Mont. 401.

The filing of an application for a patent does not suspend the obligation to keep up the required work if the claimant, without paying the purchase money, permits his application to sleep. Gillis v. Downey, (C. C. A. 1898) 85 Fed. Rep. 483.

Valuation of work. The amount of money paid is not the only method of establishing the fact that the annual assessment work, as required by law, has been fully performed, but it is an important factor in that direction, and is admissible in evidence, and

tends directly to show the good faith of the party. Whalen Consol. Copper Min. Co. v. Whalen, (1904) 127 Fed. Rep. 611.

The labor must really and actually be of the value of one hundred dollars. Twenty days' work under a local regulation providing that "in doing all assessment work in this district there shall be allowed five dollars per day," was held to be insufficient when the labor performed was shown to have been really worth an amount greatly less than one hundred dollars. Woody v. Bernard, (1901) 69 Ark. 579. See also Penn v. Oldhauber, (1900) 24 Mont. 287.

That $400 had been paid for excavating shafts on four claims, was held a compliance with the statute, when it appeared that the shafts exceeded in dimensions the requirements of the local rules as to what work should constitute the regular assessment work of the district, and that the remoteness of the mines and lack of facilities for doing the work would increase the expense and trouble, when there was nothing in the evidence justifying the inference that there was any intention to evade the law or come short of its requirements by the mine owner or by the men whom he employed to do the work. Wright v. Killian, (1901) 132 Cal. 56.

Mere proof of the expenditure of $100 is not of itself sufficient, but it furnishes an element tending strongly to establish the good faith of the owner. One of the main tests of determining this question is not what was paid for work, or the contract price, but whether or not the labor, work, and improvements were reasonably worth the said sum one hundred dollars." McCulloch Murphy, (1903) 152 Fed. Rep. 147.

of

V.

When several claims are held in common, necessary work to keep them all alive may be done on one of them. The expenditure of labor or money must equal in value that which would be required on all the claims if they were separate or independent, and the claims must be contiguous, so that each claim thus associated may in some way be benefited by the work done on one of them. Chambers v. Harrington, (1884) 111 U. S. 353. See also Jackson v. Roby, (1883) 109 U. S. 444; St. Louis Smelting, etc., Co. v. Kemp, (1881) 104 U. S. 636; Justice Min. Co. v. Barclay, (1897) 82 Fed. Rep. 554; Royston v. Miller, (1896) 76 Fed. Rep. 52; Gird v. California Oil Co., (1894) 60 Fed. Rep. 531; Mt. Diablo Mill, etc., Co. v. Callison. (1879) 5 Sawy. (U. S.) 439; Power v. Sla, (1900) 24 Mont. 243. See Altoona Quicksilver Min. Co. v. Integral Quicksilver Min. Co., (1896) 114 Cal. 100, that claims need not be contiguous.

Work can be performed on one claim for the benefit of several when there is a community of interest in all the claims for the benefit of which such work is done. Little Dorrit Gold Min. Co. v. Arapahoe Gold Min. Co., (1902) 30 Colo. 431.

When the testimony tends to show that several claims were selected and worked for development purposes, and that work on a tunnel and shaft was done to apply on the respective claims, and that the development work was a benefit to all the claims, it sus

tains a finding that the work done on the tunnel and shafts was beneficial to all the claims and a compliance with the statute. Fissure Min. Co. v. Old Susan Min. Co., (1900) 22 Utah 444.

Work done by any of the grantors of a claimant, whether holding the legal or equitable title during the performance of the work done in the interest of the claim, is available to preserve the claim. Jupiter Min. Co. v. Bodie Consol. Min. Co., (1881) 11 Fed. Rep. 677.

Work done by receiver by order of court. - It appearing from the testimony that, during the year in which it was alleged that there had been a failure to do the necessary amount of work, the property involved was in litigation; that a receiver was appointed by the court to take possession; that an order was made pending the proceedings, authorizing and directing the receiver to borrow $1,500 for the purpose of preserving the property by performing the annual assessment work thereon for that year; that this money was obtained by the receiver, and expended for that purpose; that his report was preIsented to the court and an order was made approving the report of the receiver, it was held that the action of the court made out a prima facie case of a compliance with the statute. Whalen Consol. Copper Min. Co. v. Whalen, (1904) 127 Fed. Rep. 611.

Work done by a mere trespasser or a stranger to the title will not inure to the benefit of the locator, but when parties at the instance of a co-owner have, in good faith, performed one hundred dollars worth of labor or improvements, the mine cannot be subject to a relocation although it might turn out on judicial investigation that such parties had no legal nor equitable title to any interest therein. Nesbitt v. Delamar's Nevada Gold Min. Co., (1898) 24 Nev. 283.

The agreement of a cotenant to bear his proportionate share of the expenses is not a representation and does not relieve him from the consequences of a failure to represent in order to protect the claim from relocation after the time for representation has expired. Saunders v. Mackey, (1885) 5 Mont. 525.

Work done outside of the claim or outside of any claim if done for the purpose and as a means of prospecting or developing the claim as in the case of tunnels, drifts, etc., is as available for holding the claim as if done within the boundaries of the claim itself. Mt. Diablo Mill, etc., Co. v. Callison, (1879) 5 Sawy. (U. S.) 439. See also Power v. Sla, (1900) 24 Mont. 243.

Resumption of work. If an original locator should fail to perform work in any year and should thereafter resume work in good faith before any location is made he thereby preserves his right to the claim. Buffalo Zinc, etc., Co. v. Crump, (1902) 70 Ark. 539.

A locator of a mining claim, who has allowed his location to lapse by his failure to perform the necessary work, may make a relocation or new location covering the same ground. Warnock v. DeWitt, (1895) 11 Utah 328.

A failure to do the annual assessment work does not ipso facto work a forfeiture of a lode mining claim, but the same simply becomes liable to forfeiture which may be complete and final when the rights of third persons are proved. If, however, before such rights have attached, the original locator resumes work, the forfeiture is avoided. Field v. Tanner, (Colo. 1904) 75 Pac. Rep. 919.

Where it appears that an employee went to the mine on December 30th under instructions to resume work and continue it, and worked there on the 31st, and rested the next day, Sunday, worked on Monday, January 2d, and thenceforward with another until the requisite one hundred dollars' worth of work was completed, it was held that the evidence showed entire good faith in working the mine and resuming labor. Emerson v. McWhirter, (1901) 133 Cal. 510.

In Belcher Consol. Gold Min. Co. v. Deferrari, (1882) 62 Cal. 163, it was held that a resumption of work and an expenditure in labor of twenty-four dollars after failure and before location prevented a forfeiture.

The right of the original locator to perform the labor after a failure, and have the benefit of his location, is dependent upon his having performed the labor before the relocation. DuPrat v. James, (1884) 65 Cal. 555.

To "resume work" within the meaning of this section is to actually begin work anew with the bona fide intention of prosecuting it as required. McCormick v. Baldwin, (1894) 104 Cal. 227.

There must be a substantial effort to diligently complete the assessment work, after resuming work before relocation, to defeat a forfeiture in favor of the relocator. Hirschler v. McKendricks, (1895) 16 Mont. 211. See also Honaker v. Martin, (1891) 11 Mont. 91.

The burden of proof to establish a forfeiture by failure to do the work is upon the party who asserts it. Whalen Consol. Copper Min. Co. v. Whalen, (1904) 127 Fed. Rep. 611. See also Hammer v. Garfield Min., etc., Co., (1889) 130 U. S. 292; McCulloch v. Murphy, (1903) 125 Fed. Rep. 147; Quigley v. Gillett, (1894) 101 Cal. 462; Haynes v. Briscoe, (1901) 29 Colo. 140; Beals v. Cone, (1900) 27 Colo. 501; Johnson v. Young, (1893) 18 Colo. 629; Axiom Min. Co. v. White, (1897) 10 S. Dak. 198; Dibble v. Castle Chief Gold Min. Co., (1897) 9 S. Dak. 618.

Quantum of proof to establish forfeiture. -A forfeiture cannot be established except upon clear and convincing proof of the failure of the former owner to have work performed or improvements made to the amount required by law. Hammer v. Garfield Min., etc., Co., (1889) 130 U. S. 291. See also Justice Min. Co. v. Barclay, (1897) 82 Fed. Rep. 559; Buffalo Zinc, etc., Co. v. Crump, (1902) 70 Ark. 525; Walton v. Wild Goose Min., etc., Co.. (C. C. A. 1903) 123 Fed. Rep. 209.

Illustrations. The personal expenses of the locator and the value of his time making unsuccessful efforts to obtain water to operate the mill, are not expenditures and value in the labor performed on the mine. Du Prat v. James, (1884) 65 Cal. 555.

On the 26th day of December, 1899, the original locators of the claim commenced to do the assessment work for that year. Laborers, provided with suitable tools for the purpose, worked continuously during the usual working hours of each day from the 26th of December up to Saturday evening, December 30th, when they left off work, leaving their tools on the ground intending to resume work Monday morning, which they did, and thereafter prosecuted it diligently until largely more than the assessment work required by law had been done. Acting on the assumption that the original location of the claim was forteited, and that it was open to relocation, because the full amount of the assessment work for the year 1899 had not been done before the expiration of the year, the plaintiffs in error, a few minutes past midnight on the last day of December, 1899, entered upon and relocated the claim. held that there was no suspension of the work during this time and that there was no period of time during which the plaintiff could enter and make a valid location. Fee v. Durham, (C. C. A. 1903) 121 Fed. Rep. 468.

It was

Picking rock from the walls of a shaft or from the side or outcroppings of a ledge, in small quantities, from day to day, making tests for the purpose of sampling it, breaking and examining it under a glass, crushing it in a mortar and baking it, and carrying it away and making assays of it, are not such work as the law will permit the claimant to be credited with upon his account for annual labor performed. Bishop v. Baisley, (1895) 28 Oregon 119.

The labor of a custodian in caring for and protecting a mine, and the value of the improvements thereof, from deterioration, loss, or injury while the mine is idle, may be included in the expenses for annual labor. Lockhart v. Rollins, (1889) 2 Idaho 540.

The building of a house off the claim, for the use of the miners while working the claim, cannot be considered as part of the annual labor or improvements. Remmington v. Baudit, (1886) 6 Mont. 138.

Sharpening picks. There may be circumstances that would justify the expense of sharpening picks as part of the costs of representation, but when counsel refused to inform the court whether he wished to show that the picks had been sharpened on the mining premises which were being worked, or whether they had been sharpened before they were taken to the premises, evidence of any such expense was properly rejected. Hirschler v. McKendricks, (1895) 16 Mont. 211.

The Act of Feb. 11, 1875, does not affect the character of the work to be done or improvements to be made according to the law as it stood before, except as it gives a special value to making a tunnel. Chambers v. Harrington, (1884) 111 U. S. 355.

NOTICE TO CO-OWNER.

When co-owner has not failed to contribute. Publishing a forfeiture notice against a co-owner does not divest such co-owner of his title when it is not true that the alleged

forfeiting owner has failed to contribute his proportion of the expenditures. Brundy v. Mayfield, (1895) 15 Mont. 201.

The expenditure for several years may be included in one notice to a co-owner. Elder v. Horseshoe Min., etc., Co., (1897) 9 S. Dak. 636, affirmed (1904) 194 U. S. 248.

Notice as to money spent on two claims.

A notice of a co-owner is defective which does not specify the amount of money spent upon each of two claims nor the fact which might excuse expenditure upon each claim. Haynes v. Briscoe, (1901) 29 Colo. 137.

The phrase "for at least once a week for ninety days" should be rendered "at least once a week during ninety days; " that is to say, there shall be at least one publication in each week during that period. The ninetyday period begins with the first publication and is sufficient for the week beginning on that day; a publication on the following and each succeeding corresponding day of the week would constitute at least one publication each week while so continued. Elder v. Horseshoe Min., etc., Co., (1901) 15 S. Dak. 124, affirmed (1904) 194 U. S. 248.

After the death of a co-owner a notice of forfeiture addressed to the Leceased, "his heirs, administrator, and to all whom it may concern," was held to be a sufficient notice to all parties interested. Elder v. Horseshoe Min., etc., Co., (1897) 9 S. Dak. 636, affirmed (1904) 194 U. S. 248.

Notice to minors, heirs, or lienholders.— The effect of a co-owner's notice to all parties who might have any interest under the coowner who is in default, cuts off all such interests whether the parties claiming are minors, heirs, or lienholders. Elder v. Horseshoe Min., etc., Co., (1897) 9 S. Dak. 636, affirmed (1904) 194 U. S. 248.

Notice by holder of inchoate title. The right to give notice of a claim for contribution is limited to a co-owner who has performed the labor. One who holds an inchoate title by virtue of a purchase at an execution sale and the receipt of the sheriff's certificate is not a co-owner within the meaning of the statute, nor does the fact that he obtained the assignment of the other judgments which had been recovered against other owners of the mine make him a co-owner. This provision, providing as it does for the forfeiture of the rights of a co-owner, should be strictly construed. Turner v. Sawyer (1893)150 U. S. 585.

An objection to the insufficiency of a notice to a co-owner can only be complained of by the delinquent and not by a party setting up a conflicting claim. Becker v. Pugh, (1892)

17 Colo. 243.

The Act of Nov. 3, 1893, suspending the operation of this section as to the forfeiture for nonperformance of the annual assessment for that year, deprived a co-owner of the right to have the interest of his co-owner, who failed to contribute, forfeited. Royston v. Miller, (1896) 76 Fed. Rep. 50.

ALL RECORDS OF MINING CLAIMS, The statute does not require a record, but prescribes what a record shall contain when required by local rule. Jupiter Min. Co. v.

Bodie Consol. Min. Co., (1881) 11 Fed. Rep. 677.

In the absence of a state or district requirement the failure to record a notice of location does not affect the validity of the location. Kern County v. Lee, (1900) 129 Cal. 361.

This section does not require notice of a mining claim to be either posted or recorded, but intrusts that matter to local regulation subject to the condition that when a notice is required to be recorded it shall contain among other things a description of the property. Allen . Dunlap, (1893) 24 Oregon 236. See also Kendall v. San Juan Silver Min. Co., (1892) 144 U. S. 658, as to filing record within three months from the date of discovery.

When no local rules or customs are shown to exist, it is not necessary to introduce or prove the posted notice. It is proper, however, to prove the recorded notice and for that purpose a copy may be introduced. Willeford . Bell, (Cal. 1897) 49 Pac. Rep. 6.

This section does not require an affidavit. It merely prescribes that the record, subsequently made, where one is required by the regulations of the mining district, shall contain the names of the locators, the date of the location, and such a description, by reference to some natural objects or permanent monument, as will identify the claim. Hoyt v. Russell, (1886) 117 U. S. 401.

Manner of recording. Provisions of a state statute requiring county recorders to perform duties performed before by the district mining recorders, and requiring the latter to deposit the books and records of their offices with the county recorders of their respective counties, do not conflict with this section. In re Monk, (1897) 16 Utah 103.

The effect to be given to the record of mining claims under this section is not greater than that which is given to the registration laws of the states. They do not exclude parol proof of actual possession and the extent of that possession as prima facie evidence of title. Campbell v. Rankin, (1878) 99 U. S. 261.

A record which does not set out either a natural object or permanent monument or any designation or mark by which the placer claim can be identified is not such a record as complies with the law. Fuller v. Harris, (1887) 29 Fed. Rep. 814.

SHALL BE OPEN TO RELOCATION.

In general. The work must be done or the claim is open to location in the same manner as if never located at all, unless work is resumed before the second location is made. Russell v. Brosseau, (1884) 65 Cal. 605. See also South End Min. Co. v. Tinney, (1894) 22 Nev. 19.

This section provides that, upon a failure to comply with certain named conditions, the claim or mine shall be open to relocation. Although a locator finds distinctly marked on the surface a location, it does not necessarily follow therefrom that the location is still valid and subsisting. "The statute does not

provide, and it cannot be contemplated, that he is to wait until by judicial proceedings it has become established that the prior loca tion is invalid or has failed before he may make a location. He ought to be at liberty to make his location at once, and thereafter, in the manner provided in the statute, litigate, if necessary, the validity of the other as well as that of his own location." Del Monte Min., etc., Co. v. Last Chance Min., etc., Co., (1898) 171 U. S. 77.

An entry upon a mining claim before the owner of it is in default cannot be made for the purpose of making a provisional location, to be valid or worthless according as the owner fails or not to do the annual work subsequently. Slavonian Min. Co. v. Perasich, (1881) 7 Fed. Rep. 331. See McCann v. McMillan, (1900) 129 Cal. 350.

An entry by relocators cannot be made before the former location has expired. A location to be effectual must be good at the time it is made. Belk v. Meagher, (1881) 104 U. S. 284.

Upon failure to do the requisite amount of annual development work, a junior locator of a cross vein cannot acquire a right to the forfeited claim except by taking the same action under existing laws that other persons would be required to take if they desired to appropriate it as abandoned property. Oscamp v. Crystal River Min. Co., (C. C. A. 1893) 58 Fed. Rep. 295.

During performance of labor by locator.— A claim is not subject to relocation as long as a locator or his successor in interest continues to perform the labor or make the improvements upon the same required by this statute. A failure to file with the county recorder an affidavit of annual labor and improvements as required by the state statute does not work a forfeiture. Murray Hill Min., etc., Co. v. Havenor, (1901) 24 Utah 73.

Resumption of work before relocation perfected. A failure to do the requisite amount of annual development work simply renders the claim subject to a relocation by third parties after the lapse of the year and not before, and such right of relocation is itself lost and the original owner is restored to all of his rights if he enters without force and resumes work before the relocation is perfected by any third party. Oscamp v. Crystal River Min. Co., (C. C. A. 1893) 58 Fed. Rep. 295. See also Belk v. Meagher, (1881) 104 U. S. 279; Preston v. Hunter, (C. C. A. 1895) 67 Fed. Rep. 996; Gonu v. Russell, (1879) 3 Mont. 358.

When a locator has failed to perform the assessment work for any given year, but has subsequently performed the work before any intervening rights by other parties have been acquired, his rights in the claim have been revived. Justice Min. Co. v. Barclay, (1897) 82 Fed. Rep. 554.

While locator in actual possession. A relocation upon the failure to perform the annual work may be made upon entry of the relocator peaceably and in good faith though the original locator may be in actual possession of the premises. Du Prat v. James, (1884) 65 Cal. 555.