Jupiter M. Co. v. Bodie Con. M. Co., 11 Fed. 666; s. c. 7 Sawy. 96 (1881), C. C. D. Cal. Assuming the proposition that the miners have authority to make a regulation or law by which a mining claim may be forfeited by failure to record the location thereof, yet such regulation or law, in order to effect a forfeiture, must provide that such failure to record shall work a forfeiture of the claim.

Lakin v. Sierra Buttes Gold Mining Co., 25 Fed. 337 (1885), C. C. D. Cal. One who has forfeited his claim, by a failure to work his claim as required by the statute, may re-enter and resume work at any time before other rights attach in favor of subsequent locators.

Hammer v. Garfield M. & M. Co., 130, 291 (1889), affirming s. c. 6 Mont. 53. Upon the party setting up a forfeiture for non-compliance with mining regulations rests the burden of proof. He must furnish clear and convincing proof thereof.

Oscamp v. Crystal River M. Co., 58 Fed. 293 (1893), C. C. Ap., 8th Circ. "The failure of the owner to occupy or to work his claim during a given year will not operate to divest him of his title and to confer it upon another. A failure to work a claim to the extent required by the statute simply entitles a third party to relocate it in the mode pointed out by existing laws." The position of an overlapping junior locator is no better than that of any other third party.

Arizona.

Rush v. French, 1, 99 (1874). The failure to comply with a mining rule or regulation cannot work a forfeiture, unless the rule itself so provides.

Johnson v. McLaughlin, 1, 493 (1884). Defendant located his claim in accordance with the provisions, and complied with all the requisites, of the statutes of the United States and the Territory, but did not comply with a district regulation by which a locator was required to record his claim with the district recorder and procure him to go upon the ground to inspect the same for the purpose of finding prior claims. Subsequently plaintiff located the same ground, complying with the district regulation as well as with all other requisites.

Held, as there was no provision in the district regulations for forfeiture for failure to comply with this rule, the defendant's title was not defeated, but was valid.

McGarrity v. Byington, 12, 426 (1859). "The right California. to a mining claim vests by the taking in accordance with local rules. The failure to comply with any one of the mining rules and regulations of a camp is not a forfeiture of title. It would be enough to hold the forfeiture as the result of a non-compliance with such of them as make non-compliance a cause of the forfeiture."

Colman v. Clements, 23, 245 (1863). Where a forfeiture is claimed under a mining regulation, the courts will construe most strictly against the claim of forfeiture. A rule required that one day's work should be done on each claim in every thirty days, etc. "Claim" was held to be used in a general sense, including all kinds of claims, joint as well as individual.

Wiseman v. McNulty, 25, 230 (1864). In order to have a forfeiture take place, there must be some person, natural or artificial, who is entitled to receive the benefit of the forfeiture when it accrues. Tenants in common of mining land, acting under a company name, are

incapable of taking or holding in the name of the company the interest of any of the tenants in common by forfeiture. The term "forfeiture" in its common law significance has no application to the rights, interests, or remedies of the several persons composing a mining association. A provision in an agreement between the members of such an association, that on failure to pay certain assessments a member shall forfeit his claim or share to the company, attempts to create not a forfeiture, but a mode of transferring title, which will not be recognized. The term "forfeiture" is often used by miners, and in many decided cases as synonymous with "abandonment."

St. John v. Kidd, 26, 263 (1864). The term "forfeiture," as used in our mining customs and codes, means the loss of a right to mine a particular piece of ground, previously acquired, by neglect or failure to comply with the rules and regulations of the bar or digging in which the ground is situated, prescribing the acts which must be done in order to continue and keep alive that right after it has been once acquired. As a defence it is entirely distinct and separate from that of abandonment; it involves no question of intent, but rests entirely upon the mining rules and regulations, and involves only the question whether in point of fact those rules and regulations have been observed by the party seeking to maintain or perpetuate the right regardless of what his intentions may have been.

Depuy v. Williams, 26, 310 (1864). The failure to perform the amount of work on a mining claim required by the local mining laws or regulations established and in force in the district where the claim is located, amounts to an abandonment of the claim, and thereupon it may be occupied and appropriated by another.

Pralus v. Pacific G. & S. M. Co., 35, 30 (1868). See this case on p. 297.

Bell v. Bed Rock T. & M. Co., 36, 214 (1868). The failure of a party to comply with a mining rule or regulation cannot work a forfeiture of title to his claim unless the rule so provides.

Strang v. Ryan, 46, 33 (1873). If the local mining laws provide that on a failure to work and post a claim as required, it shall be considered abandoned, a failure to comply with such laws is an abandonment, and the claim is open to relocation as vacant ground. If several, as tenants in common, locate a mining claim on the public land, and by failure to comply with the local rules 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 cease to have any interest.

Morenhaut v. Wilson, 52, 263 (1877). Mere failure to do the work, while it may cause a forfeiture, does not constitute an abandonment. A forfeiture under the provision of mining regulations must be pleaded specially.

A defence based merely upon forfeitures does not involve a denial of the plaintiff's possession or right of possession at the date of defendant's entry. It is analogous to a plea of confession and avoidance admitting possession, and a right of possession in the plaintiff which would have continued in him but for the defendant's entry and location, which by virtue of the mining laws terminated that right.

Souter v. Maguire, 78, 543 (1889). Findings showing a continuous possession of a mining claim by the locator, and performance of the annual amount of work required by law, are sufficient to dispose of an issue as to abandonment.

Kramer v. Settle, 1, 485 (1873). The failure to perform Idaho. the work on a mining claim required by State law to be done within a certain time after discovery amounts to an abandonment, and it may thereafter be appropriated by another. The performance of the work before such subsequent location will not cure the failure. But a failure to record a notice of location within the required time may be cured by recording it before a subsequent location.

Montana.

King v. Edwards, 1, 235 (1870). The regulations of miners which require the performance of a certain amount of work upon each claim are conditions subsequent. So long as the locator complies with them, the right to possess the mine remains with him. Upon failure to comply, he forfeits his right. It is not necessary that the law should provide that a failure to comply should work a forfeiture. "When mining ground is forfeited by any one, it again becomes unappropriated mineral land of the United States. Any one who relocates 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."

Herbert v. King, 1, 475 (1872). No regulations or customs of the district having been proven, the plaintiff introduced evidence which tended to show that the ground was unrepresented for five or six weeks, and that it thereby became subject to relocation, and was relocated by third parties, who worked it, unmolested by him, with his knowledge and without assertion of title by him. These facts raise a presumption of the right of location and establish an abandonment.

Belk v. Meagher, 3, 65 (1878), affirmed in s. c. 104 U. S. 279. "The original location being valid, and the ground having been represented as the law required so that no forfeiture has occurred, a defective conveyance would not create a forfeiture and subject the ground to relocation."

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. The remedy of the other tenant is by action for breach of covenant, or to establish and enforce a trust in the claim as relocated.

Brundy v. Mayfield, 15, 201 (1895). The forfeiture provisions of Rev. Stat. 2324 must be strictly construed. Before the interest of a part owner of a mining claim can be forfeited to his co-owners, it must be a fact that he has failed to contribute his proportion of the annual expenditure required by law. If he has not failed to do this, the publication of forfeiture notices will not affect his title.

Nevada.

Mallett v. Uncle Sam G. & S. M. Co., 1, 188 (1865). "Usually the mining claims in this State have been located with direct reference to the mining laws established in the district

where the location is made. Such mining laws when once established are recognized by the courts, and indeed the legislature of the State has given them the force and binding obligation of legislative enactment. (Stats. of Nev., p. 21, sec. 77). When those mining laws. directly point out how mining claims must be located, and how the possession once acquired is to be maintained and continued, that course must be strictly pursued." A failure to do so works a forfeiture, not a strict forfeiture, "but a kind of forfeiture recognized by the courts of this coast from the earliest day, and which is certainly founded upon rational and just principles." When a court presumes title in a first appropriator, it can only be a title subject to the conditions imposed by the mining laws and customs under and by virtue of which it was acquired. In the absence of mining laws, the miner locating a claim holds only by actual occupancy, and by such working for the development of the mine as would under all the circumstances be deemed reasonable, and his right of possession will be continued by occupancy and use.

Oreamuno v. Uncle Sam G. & S. Mining Co., 1, 215 (1865). Mallett v. Uncle Sam G. & S. M. Co. followed. It was not error to instruct the jury as follows: "To enable a party to maintain a right to a mining claim, after the right is acquired, it is necessary that the party continue substantially to comply with mining rules and customs established and in force in the district where the claim is situated upon which such right is made to depend."

Steel v. Gold Lead G. & S. M. Co., 18, 80 (1883). In an action on an adverse claim, under the Nevada statute, the defendant may give evidence of forfeiture without having pleaded it specially.

CHAPTER XII.

RELOCATION.

WHEN a mining claim has been abandoned or forfeited, it becomes again a part of the unappropriated and unoccupied public domain, and may be relocated by any one qualified originally to make a location. The acts requisite to the making of a relocation. are identical with those requisite to make an original location, except that the relocator may adopt the discovery and the monuments of the abandoned or forfeited location.1 He has the same time to perform these acts as had the original locator. The act of relocation is an admission of the validity of the original location, and amounts to an assertion of its abandonment or forfeiture. It therefore does not properly include the location of the ground which another has previously attempted to locate, but to which he has failed to obtain a valid title by reason of failure to perform some of the necessary acts or by reason of his incompetency to make a location. Such a subsequent location is really an original location, the attempted location being invalid, and therefore no location. As only the unappropriated and unoccupied mineral land of the public domain is open to location, so there can be no relocation of mineral land until it has reverted to that condition. A location upon land already validly located creates no rights, and is not made valid by a subsequent abandonment or forfeiture of the original location. The abandonment must actually have taken place or the forfeiture be complete before the ground can be relocated. "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

1 The method of relocation is prescribed by statute in Arizona, Act March 20, 1895, sec. 11, p. 55; Colorado, M. A. S. 3162; Idaho, Act March 5, 1895. sec. 7, p. 26; Montana, Pol. Code 1895, sec.

3615; New Mexico, Act Feb. 5, 1889, sec. 3, p. 42; North Dakota, Rev. Codes 1895, sec. 1439; and Wyoming, Laws 1888, ch. 40, secs. 21 and 23; Dakota, Comp. Laws 1887, ch. 19, art. 1, sec. 2010.