the equitable title will operate to preserve the claim from forfeiture and inure to the benefit of the claim.1

Compliance with the law by a mineral claimant, who is at such time holding under color of title, will accrue to his benefit on the acquirement of the legal title."

The purchaser of a claim from a prior locator is entitled to the benefit of all expenditures made by his grantor in the development thereof."

634. Circumstances under which performance of annual labor is excused. During certain periods of industrial depression, congress has passed special laws suspending the provisions of the section of the Revised Statutes requiring the performance of annual labor,' upon the condition, that the claimant file with the recorder of mining locations in the locality in which his claim was situated a declaration of intention to hold and work the claim in good faith; but these are mere transitory acts, which have fully accomplished the object for which they were passed, and no longer require consideration. The existence of Indian hostilities in the border regions,-a not infrequent occurrence in the past-where an attempt to comply with the law as to annual labor would jeopardize the life of the locator, would certainly excuse the strict fulfillment of the requirements of the law, provided, of course, that the locator returns within a reasonable time. after the cessation of such hostilities, and resumes his efforts to represent his claim. This is but the application in a larger sense of the rule which excuses the performance of work when the claim is in the hostile possession of another, rendering it impossible to comply with law without incurring risk of injury to life or limb, or committing or inviting a breach of the peace.

Book v. Justice M. Co., 58 Fed. Rep. 106; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Saw. 96.

Dolles v. Hamberg Cons. M. Co., 23 L. D. 267.

Tam v. Story, 21 L. D. 440.

*Act of Nov. 3, 1893, 28 Stats. at Large, 6; Act of July 18, 1894, Id. 114.

A person in the peaceful and lawful occupancy of public land, for the purpose of initiating a title, having established his right so far as he could or was permitted, acquires a title which entitles him to the possession of the land as against all persons except the government. When he is forcibly prevented from fulfilling the letter of the law, it will be presumed that he would have fulfilled it if permitted so to do.' So it has been held that where adverse possession of a mining claim is taken and held wrongfully, the rightful owner or locator is excused from doing the assessment work during the continuance of such adverse holding."

A locator cannot be deprived of his inchoate rights by the tortious acts of others, but there must be a bona fide effort to perform the work. The acts and hostile declarations of one asserting an adverse right must be of so serious and menacing a character as to satisfy a man of ordinary prudence that it would be unsafe to begin work. Threats made at long range, when a relocator is not in the physical possession of the claim, or if made upon the claim, are of such a negative character as to preclude the idea that an attempted resumption of work would be met with force, will not excuse a reasonable attempt to comply with the law.1

It may be suggested that third parties disconnected with either the original locator or the hostile relocator might effect a relocation, which would defeat the title of both contending parties. The answer to this is found in the fact, that no one could initiate a right by force and violence; and if the status of the claim as to physical occupancy is such as to admit of its peaceable relocation by outsiders, it is open to a peaceful re-entry by the original locator for the purpose of performing his labor.

1 Robinson v. Imperial S. M. Co., 5 Nev. 44; Alford v. Dewin, 1 Nev. 207. 2 Utah M. & Mfg. Co. v. Dickert M. S. Co., 6 Utah, 183; Mills v. Fletcher, 100 Cal. 142; Trevaskis v. Peard, 111 Cal. 599; Erhardt v. Boaro, 8 Fed. 692. Erhardt v. Boaro, 113 U. S. 527, 534.

Slavonian M. Co. v. Vacavich, 7 Saw. 217.

5 See, ante, 2 217.

2 635. Value of labor and improvements - How estimated. In some of the mining districts, attempts have been made to fix the value of a day's labor, and in the territory of New Mexico we encounter a state statute prescribing the number of hours which shall constitute a day's work upon a mining claim, and providing that such day's work shall be of the value of four dollars.1

It seems to us that it is not within the power of any state or territorial legislature or local district assemblage to arbitrarily fix the value of any marketable commodity. The following instruction upon the method of determining values, has been approved by the supreme court of Montana:

"In determining the amount of work done upon a claim, "or improvements placed thereon for the purpose of repre"sentation, the test is as to the reasonable value of the said "work or improvements- not what was paid for it or "what the contract price was, but it depends entirely upon "whether or not the said work or improvements were rea"sonably worth the said sum of one, hundred dollars."

Nor is it material whether or no the labor performed is paid for or not, provided it is done at the instigation of the owner. The fulfillment of the provision of the law lies in the performance of the labor or the making of the improvements required,1 and not in the payment for it.

Experience teaches us that this question of value of annual labor forms the basis of innumerable controversies. Every relocator is interested in depreciating the value of work performed by the original locator, and the latter in saving his claim from forfeiture is interested in extolling its worth. It is largely a question of opinion, upon which both practical miners and experts will disagree. As was observed by the supreme court of Colorado,

"It is probable that testimony could be obtained to "show that nearly all the annual assessment work done

1 Comp. Laws New Mex. 1884, ? 1568.

2 Mattingly v. Lewisohn, 13 Mont. 508, 520.

3 Lockhardt v. Rollins, 2 Idaho, 503.

Coleman v. Curtis, 12 Mont. 301.

upon mining claims was of less value than the law "required, excepting those instances where it greatly "exceeds the sum of one hundred dollars; and while the "amount paid is not conclusive that work of that value "has been done, but the actual value is the true test "whether or not the law has been complied with, yet, "where the testimony is conflicting as to the value, it is proper to consider whether there has been a bona fide "attempt to comply with the law."1

2636. Proof of annual labor under state laws.Most of the states and territories subject to the congressional mining laws have enacted statutes providing for proof, in the form of affidavits establishing the fact that the annual labor for a given year has been performed. Such affidavits are required to contain a statement as to the nature and value of the work performed and improvements made, and are to be filed before the end of a given period with the recording officer in whose office record of mining locations is made pursuant to local or state legislation. This class of legislation is found in California,2 Colorado, Idaho, Montana, New Mexico, Utah, Wyoming, Arizona," and Nevada.10

The full text of state legislation on this subject will be found under appropriate heads in the appendix. It is unnecessary to consider here anything beyond the general object of this class of state laws.

The failure to file affidavits of annual labor is accompanied by no serious penalty. There is no provision in any of the statutes to the effect that a failure to comply with its terms will work a forfeiture." If any such conditions

Quimby v. Boyd, 8 Colo. 194, 208.

2 Stats. 1891, p. 219.

3 Mills' Annot. Stats., ? 3161, as Am. Ses. Laws 1889, p. 261.

4 Laws of 1895, p. 25.

5 Rev. Code of 1895, 23614.

6 Act of March 18, 1897.

7 Act of 1897, 26.

* Laws of 1888, pp. 90-91, ? 23.

Stats. 1895, p. 54, 22 ix and x.

10 Stats. 1887, p. 136.

11 Book v. Justice M. Co., 58 Fed. 106, 118.

were inserted, or if any of the laws in question were susceptible of any such construction, they would undoubtedly be considered as unreasonable, and repugnant to the federal law. A forfeiture of a mining claim cannot be established, except upon clear and convincing proof of the failure of the locators or owners of the claim to have the work done or improvements made to the amount required by law. All these statutes provide that the affidavits when filed, or certified copies of them, shall be prima facie evidence of the facts therein stated, which, of course, means such facts as are required by the law to be stated therein.

In Idaho it is provided that the failure to file such an affidavit shall be considered prima facie evidence that the requisite labor has not been performed, and likewise in New Mexico such failure places the burden of proof upon the owner or owners of such claim to show that such work has been done according to law. Ordinarily the burden of proof rests with the party charging a forfeiture, to show that the work has not been performed by the previous locator."

In Idaho and New Mexico, where there is a failure to file the proof of annual labor, it would seem that this rule is modified and the burden is shifted. We cannot see any objection to this class of state legislation. The several states have a right to define the nature, degree, and effect of evidence, within rational limits, and we do not think these provisions unreasonable.

The general purpose and object of state laws authorizing the making and filing of proofs of annual labor is fully stated by Judge Hawley in Book v. Justice Mining Co., in construing the Nevada statute:

"The object of this act was evidently to fix some defi"nite way in which the proof as to the performance of the "work or expenses incurred in the making of improvements might be in many cases more accessible. În all "mining communities there is liable to be some difficulty

1 Book v. Justice M. Co., 58 Fed. 106, 118; Hammer v. Garfield M. & M. Co., 130 U. S. 291.

'Hammer v. Garfield M. & M. Co., 130 U. S. 291; Johnson v. Young, 18 Colo. 625; Quigley v. Gillett, 101 Cal. 462; Coleman v. Curtis, 12 Mont. 301.

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