remedy to recover possession." From the time of the lawful location of the claim the locator becomes the owner as against any other claimant of the soil. "It is true that the law allows him to hold only one lode by this location, but the fact that two ledges exist within these bounds must first be established before the subsequent claimant has any right to pass into them. If by going outside of these boundaries and tracing it into them he shows that another and distinct lode exists, then he may pass boundaries that would otherwise be sacred to the first locator."

King v. Edwards, 1, 235 (1870). "When mining ground Montana. is forfeited by any one, it again becomes unappropriated mineral lands of the United States. Any one who locates it in accordance with the mining rules and customs of the district in which the same is situated, has the rights of the government, and may proceed to declare a forfeiture, or may set up the defence of forfeiture in an action against him."

Meyendorf v. Frohner, 3, 282 (1879). A party in possession of mining ground under a title, subsequently determined in court as invalid, may, without fraud, relocate such ground and thereafter perfect such title in accordance with the United States laws.

Gonu v. Russell, 3, 358 (1879). A locator of a quartz lode having forfeited the same by reason of failure to perform the necessary labor, another entered upon the ground on July 3, 1877, posted a notice describing the claim by boundaries, marked the boundaries on July 19, and recorded the claim on July 20. On July 19, one hour before the marking of the boundaries, the original locator resumed work. His title was held good. "The law contemplates that the location of a mining claim shall consist of a number of distinct acts, which are independent of each other. The last that may be done does not relate back to the first, and all must be performed before a legal location exists. The owner of a lode which has become subject to relocation can resume work thereon at any time prior to the performance of all these acts. The appellant could not make a valid location of the E. lode until he had marked the boundaries so that they could be traced readily by means of stakes, monuments, natural objects, or any other certain means. The resumption of labor in good faith by the respondent before the appellant perfected his location rendered null the prior acts of the appellant."

McKinstry v. Clark, 4, 370 (1882). Where defendant in ejectment claimed by virtue of two locations from a single discovery shaft, when one only could be valid, it was error to charge that upon plaintiffs who claimed by virtue of a relocation, rested the burden of proving which of the two was valid. "The right to the possession comes only from a valid location; consequently if there is no location there can be no possession under it. Location does not necessarily follow from possession, but possession from location."

Saunders v. Mackey, 5, 523 (1885). A tenant in common who enters into an agreement with his co-tenant, by which the latter is to do the required annual work, forfeits his interest in the claim if the work be not done. The claim becomes thereby open to relocation, and a valid location can be made by the tenant who made default.

Honaker v. Martin, 11, 91 (1891). The resumption of labor after failure to do assessment work and before relocation, in order to save the claim from relocation, under Rev. Stats. 2324, must be followed by a prosecution of the work with reasonable diligence until the requirement as to labor has been complied with. "The resumption of work by the original locator, whose rights are subject to forfeiture, without the expenditure, with reasonable diligence during the year, of the sum of $100 for labor or improvements upon the mine, is an evasion of the statute." It was held that upon the facts of this case there was not a resumption of work in good faith.

Golden Fleece G. & S. M. Co. v. Cable Con. G. & S. M. Co., Nevada. 12, 312 (1877). Where the first claimant who locates a claim is not a citizen, or had forfeited his rights by non-compliance with the mining laws, or has abandoned his claim, the mining ground staked off by him is open to relocation by any citizen as if no stake had ever been planted upon it.

Sever v. Gregovich, 16, 325 (1881). G. joined with S. in locating a mining claim, and afterwards recognized his claim, including a discovery claim of two hundred feet, as valid, and accepted from S. and his grantees their proportion of the expense of work upon the entire claim. G. subsequently located the entire claim in his own name, claiming that the original location was void, because the locators were not the discoverers of the lode, and S. was, at the time of the location, an alien. S. became a citizen before the relocation. Held, G. was estopped by his acts from denying the rights claimed by S. and his grantees as owners of an interest in the claim.

Rose v. Richmond M. Co., 17, 25 (1882), affirmed in 114 U. S. 576. "A party cannot locate a valid claim to a mining claim or lode already located and legally possessed by others." Such a location is absolutely null, and gives no right of possession.

Where parties locate an interest for discovery upon a lode previously discovered, but not known to be upon the same lode at the time the location is made, the location is not entirely void. If voidable at all, it is only so as to the extent of the discovery interest.

South End M. Co. v. Tinney, 35 Pac. 89 (1894). Where a person has abandoned his application for a patent and ceases to work his claim, it becomes open to relocation.

New Mexico.

Wills v. Blain, 4, 378 (1889). Plaintiffs claimed under a location in 1880. Defendants claimed under a location in 1887, the last sentence of the recorded notice of which was, "This is a relocation of the claim known as the Dread Naught." This was an admission that the plaintiff's location was originally valid. "The relocator when he so describes himself in the notice solemnly admits, in an instrument which is made a matter of record, that he is not a discoverer of mineral but an appropriator thereof, on the ground that the original discoverer had perfected his right. The notice becomes in some sense an instrument of title a record. It is the equivalent of an admission of record to the original locator that the relocator claims a forfeiture by reason of a failure on the part of the first locator to make his annual expenditure. This we believe to be the doctrine of Belk v. Meagher."

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Warnock v. De Witt, 11, 324 (1895). A locator who has for

Utah. feited his claim by failure to do the required amount of annual

work, may himself relocate the same ground.

LAND OFFICE DECISIONS.

When application is made for a patent for a relocated claim, it must be shown that not less than $500 has been expended thereon by the applicant or his grantors. Copp, 161 (1875).

When a mining claim has been entered and paid for, it is not subject to relocation by strangers between the date of entry and the date on which patent issues, on the ground of failure to perform annual work. Rev. Stats. 2324 refers solely to possessory titles. American Hill Quartz Mine, Copp, 237 (1879).

Where adverse relocations are made prior to the, application for patent, controversies as to right of possession growing out of such relocations must be adjudicated in the courts. Where the alleged abandonment occurs subsequent to publication of notice of application for patent, and prior to payment and entry, the Executive Department will be compelled to take jurisdiction. Wildman Quartz Mine, Copp, 291 (1880).

Where a lode-mining claim has been located by several persons jointly, and thereafter the required expenditures have not been made, the claim may be relocated by one of the former claimants to the exclusion of his co-claimants.

Labor performed or improvements made by an original locator cannot be claimed by him as part of the expenditures necessary to entitle him to patent for the relocation. Copp, 300 (1881).

A claim is not subject to relocation in the interim between entry and issuance of patent for failure to perform annual work. F. P. Harrison, 2 L. D. 767 (1884).

A tortious entry is unavailable for the purpose of a valid location of a mining claim, and in Colorado, where adverse possession was obtained on a legal holiday by stealth when the locators were temporarily absent, and was retained by threats, it was in violation of the local statutes, although the locators were derelict in performing the requisite work, and gave no right of relocation. McNeil v. Pace, 3 L. D. 267 (1884).

In a claim located after May 10, 1872, failure to make the annual expenditure required by the statute renders the claim subject to relocation in the same manner as if no location of the same had ever been made, provided that work has not been resumed thereon after such failure, and before relocation. The forfeiture declared by the statute in such case is absolute, and the original locator will not be heard to question the validity of a relocation in a proceeding instituted to determine whether said relocator had complied with the law in the matter of the annual statutory expenditure. If the relocation is not legal, the illegality must be shown in the regular manner, in a proceeding instituted for that purpose. Little Pauline v. Leadville Lode, 7 L. D. 506 (1888).

An original locator will not be heard to question the validity of a relocation in a proceeding instituted to determine whether said relocator has complied with the law in the matter of the annual statutory expenditure. Sweeney v. Wilson, 10 L. D. 157 (1890).

The B. Co. made application for patent, and furnished all the evidence necessary to entitle it to make entry, but through an oversight failed to pay the $65 which under Rev. Stats. 2325 should have accompanied the application. Under belief that its entry was complete, it suspended work and failed for two years to do the annual labor required by the law. The claim was then relocated by one who applied for patent. The company discovering its default tendered the $65, which was refused on account of the intervening claim. Held, that the claim had been abandoned and was open to relocation. Ferguson v. Belvoir M. & M. Co., 14 L. D. 43 (1892).

The fact that an entry was cancelled, will not of itself render the ground subject to relocation. The original location is not affected thereby. McGowan v. Alps C. M. Co., 23 L. D. 113 (1896).

CHAPTER XIII.

THE POSSESSORY TITLE OR TITLE BEFORE PATENT.

I. The Right of Possession.

II. Action for the Possession of Mining
Claims.

III. Conveyance of Mining Claims before
Patent. Statute of Frauds.

I. THE RIGHT OF POSSESSION.

ONE who has completed a valid location of a mining claim has a title to the land. It is not the complete legal title; that is still in the government, and is not acquired by the locator until he has received a patent for his claim. He has thus far only occupied a portion of those lands, which are declared open to "occupation and purchase" by Rev. Stats. 2319. The legal title is acquired only when that occupation is followed by purchase. But in the mean time he has a title good as against every one except the United States. This title is most often referred to in congressional legislation as the "right of possession," or the right of possession and enjoyment." The locator of mineral land who has complied with the requirements of law and of the mining rules and regulations in force in the district, thereby becomes the assignee of the United States; a grant takes place, and a title vests in him. The fee remains in the government, but to him is granted the right of exclusive possession and enjoyment, to occupy, explore, and take therefrom the precious metals, and also the right, which it is his option to exercise or not as he pleases, to purchase the legal title from the United States.

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This right of possession does not come from mere possession, or from the simple act of occupation. It comes only from a valid location. Consequently if there is no location, there can be no possession under it. Location does not necessarily follow from possession, but possession from location." Nor is residence or actual possession necessary for its protection. All that is necessary after a valid possessory title has been acquired is a compliance with such laws and regulations as are requisite to