If the decision in Black v. Elkhorn Mining Company had been promulgated by any court of less dignity than the supreme court of the United States, we might deferentially suggest that while the view announced upon the subject of abandonment, as distinguished from forfeiture, was undoubtedly applicable to the early mining tenures as they existed prior to the enactment of the federal mining laws, by legislative construction and judicial interpretation the character of the estate in later years had been raised to such a dignity that it required something more than a mere parol abandonment to terminate it.

While it is true that no written instrument creating the grant is signed by the grantor, yet in at least twelve out of the fourteen states and territories subject to the federal mining laws, with the consent and under the sanction of the federal government, a record title is established. "A statutory writing affecting realty, being in part the basis of a miner's title," is required.

1

While as between the government and the locator the title of the latter is equitable, the courts of the mining. states have uniformly held that as against every one else the estate was that of a freehold.

3

The supreme court of the United States has said that a written conveyance is not necessary to the transfer of a mining claim, citing, as authority for this doctrine, an early California case; but ever since 1860 the supreme court of that state has, by a uniform line of decisions, held that a written instrument was necessary to pass the title to a located mine.1

The same rule obtains in Montana, and we think we are justified in making the statement, that at the present time, in every state and territory subject to the federal 'Pollard v. Shively, 5 Colo. 309, 312.

2 Union Cons. S. M. Co. v. Taylor, 100 U. S. 39, 42.

3 Table Mt. T. Co. v. Stranahan, 20 Cal. 198.

'Goller v. Fett, 30 Cal. 481; Folger v. Coward, 35 Cal. 650; Hardenburgh v. Bacon, 33 Cal. 381; Melton v. Lambard, 51 Cal. 258; Garthe v. Hart, 73 Cal. 541; Moore v. Hamerstag, 109 Cal. 122.

mining laws, a perfected mining location is treated as real estate, and that the same formalities are required to transmit the title as in case of other real property. The estate is treated as a legal one. It will support the action of ejectment. It may be mortgaged and generally dealt with as if the absolute fee were vested in the locator.1

A conveyance is not an abandonment. Abandonment terminates a right. A conveyance transmits it.2

Judge Field, while on the supreme bench of California, announced the doctrine, that,

"The right of the occupant originating in mere posses"sion may, as a matter of course, be lost by abandonment. "Where there is title, to preserve it there need be no con"tinuance of possession, and the abandonment of the latter "cannot affect the rights held by virtue of the former.""

And the supreme court of the United States has said, that,

"There is nothing in the act of congress which makes "actual possession any more necessary for the protection "of the title acquired to such a claim by a valid location, "than it is for any other grant from the United States."4

The abandonment of possession is one thing. The abandonment of a right of exclusive possession and enjoyment granted by a statute which is a muniment of title, is another. If the estate of the locator is a legal estate, it can only be divested by abandonment when the circumstances are sufficient to raise an estoppel; but when such abandonment is not accompanied by circumstances sufficient to raise an estoppel, no matter how formal the abandonment may be, if it fall short of a legal deed of conveyance, it has no effect whatsoever upon the title."

There is another consideration which may add some weight to the contention that such an estate cannot be lost 1 See, ante, 2 539.

2 Richardson v. McNulty, 24 Cal. 339.

3 Ferris v. Coover, 10 Cal. 589, 632.

'Belk v. Meagher, 104 U. S. 279, 283.

5 Tiedeman on Real Property, 2 439; 3 Washburn on Real Property,

p. 65.

or terminated by mere parol abandonment: The statute which creates and authorizes the grant specifies the conditions under which the estate granted shall be forfeited. The question may be plausibly asked, Can the estate be lost or terminated lawfully in any other manner or for any other cause than that specified in the statute?

But as the supreme court of the United States seems to assume that the locator's estate may be lost either (1) by forfeiture for non-performance of annual labor, or (2) by voluntary parol abandonment, it will be necessary for us to consider the essential differences between the two.

643. Distinction between abandonment and forfeiture.-Abandonment is always a question of intention.' In forfeiture the element of intent is not involved. It rests entirely upon the statute, and involves only the question, whether the terms of the law have been complied with."

Abandonment operates instanter. Where a miner gives up his claim and goes away from it without any intention of returning, and regardless of what may become of it, or who may appropriate it, an abandonment takes place, and the property reverts to its original status as part of the unoccupied public domain. It is then publici juris, and open to location by the first comer. Forfeiture is not complete until some one else enters with intent to relocate the property.1

1Omar v. Soper, 11 Colo. 380; Mallett v. Uncle Sam M. Co., 1 Nev. 188, 204; Weill v. Lucerne M. Co., 11 Nev. 200; Bell v. Bedrock T. & M. Co., 36 Cal. 214; Stone v. Geyser Q. M. Co., 52 Cal. 315; Derry v. Ross, 5 Colo. 295; St. John v. Kidd, 26 Cal. 263; Waring v. Crow, 11 Cal. 367; Davis v. Butler, 6 Cal. 510; Richardson v. McNulty, 24 Cal. 339; Morenhaut v. Wilson, 52 Cal. 263; Marshall v. Harney Peak T. M. Co., 1 S. Dak. 350; Myers v. Spooner, 55 Cal. 257; Dodge v. Nearden, 7 Ore. 456; Trevaskis v. Peard, 111 Cal. 599; Doe v. Waterloo M. Co., 70 Fed. 455.

St. John v. Kidd, 26 Cal. 263, 272; Bell v. Bedrock T. & M. Co., 36 Cal. 214, 218.

Derry v. Ross, 5 Colo. 295; Davis v. Butler, 6 Cal. 510; Richardson v. McNulty, 24 Cal. 339; Mallett v. Uncle Sam M. Co., 1 Nev. 188; Morenhaut v. Wilson, 52 Cal, 263; St. John v. Kidd, 26 Cal. 263; Harkrader v. Carroll, 76 Fed. 474.

'Little Gunnell M. Co. v. Kimber, 1 Morr. Min. Rep. 536, 539; Lakin v. Sierra Buttes G. M. Co., 25 Fed. 337, 343.

Abandonment may occur at any time, even after full compliance with the law as to performance of annual labor. Forfeiture will only ensue upon the lapse of the statutory period, and upon failure to represent the claim.

Abandonment may be proved under the general issue.1 Forfeiture must be specially pleaded," although this rule does not obtain, necessarily, in proceedings to determine adverse claims under section twenty-three hundred and twenty-six of the Revised Statutes, where the title of each party is put in issue. Where, however, either abandonment or forfeiture are relied upon, the burden of proof rests with the party asserting.1

3

644. Acts constituting abandonment Evidence establishing or negativing it.-Abandonment is a question of fact to be determined by the jury. No arbitrary rule can be laid down which will satisfy all cases. The question being one purely of intent, the fact is to be determined by the acts and conduct of the party.

Upon a question of abandonment, as upon a question of fraud, a wide range is allowed, for it is generally only from facts and circumstances that the truth is to be discovered, and both parties should be allowed to prove any fact or

1 Willson v. Cleaveland, 30 Cal. 192; Bell v. Bedrock T. & M. Co., 36 Cal. 214; Bell v. Brown, 22 Cal. 671; Morenhaut v. Wilson, 52 Cal. 263; Trevaskis v. Peard, 111 Cal. 599.

The supreme court of Montana, while not undertaking to decide the question, intimated that it would be safer to plead it. McShane v. Kenkle, 44 Pac. 979.

2 Renshaw v. Switzer, 6 Mont. 464; Garfield M. & M. Co. v. Hammer, 6 Mont. 53; Morenhaut v. Wilson, 52 Cal. 263; Mattingly v. Lewisohn, 13 Mont. 508; Bishop v. Baisley (Ore.), 41 Pac. 936; Wulff v. Manuel, 9 Mont. 286, S. C. reversed on appeal but not on this point, 152 U. S. 505; Altoona Q. M. Co. v. Integral Q. M. Co., 114 Cal. 100.

3 Steel v. Gold Lead M. Co., 18 Nev. 80.

As to what is necessary to be alleged and proved in this class of actions and the relationship between the state courts and the land department, see subject of "adverse claims" in a succeeding chapter.

Oreamuno v. Uncle Sam M. Co., 1 Nev. 215; Quigley v. Gillett, 101 Cal. 462; Coleman v. Clements, 23 Cal. 249; Bishop v. Baisley (Ore.), 41 Pac. 939; Johnson v. Young, 18 Colo. 625.

5 Taylor v. Middleton, 67 Cal. 656; Myers v. Spooner, 55 Cal. 257,

260.

circumstance from which any aid for the solution of the question can be derived. The animus revertendi is the simple test. There must be a leaving of the claim without any intention of returning or making any further use of it, to sustain the charge of abandonment. The leaving having been shown, it is competent for the opposite party to show any acts explaining it."

If tools or mining implements are left on the ground, this fact would be a circumstance negativing the idea of abandonment.1

Mere failure by one colocator to contribute his proportion of the expense of performing assessment work would not be conclusive evidence of an intention to abandon, although it is a circumstance which may be considered in connection with others."

Lapse of time, absence from the ground, or failure to work it for any definite period, unaccompanied by other circumstances, are not evidence of abandonment."

The declarations of a party against his own interest, accompanying his removal from the claim, would certainly be admissible to show intent, and this, independent of the fact that others acted upon such declarations, which would involve the element of estoppel. Estoppel in pais does not constitute an element in abandonment, nor is it one of the circumstances from which an abandonment may be found.'

It has been held that, when the question of abandonment is in issue, the declarations in his own favor, made by

'Willson v. Cleaveland, 30 Cal. 192; Bell v. Bedrock T. & M. Co., 36 Cal. 214, 218.

'Stone v. Geyser Q. M. Co., 52 Cal. 315, 318.

Bell v. Bedrock T. & M. Co., 36 Cal. 214.

'Harkness v. Burton, 39 Iowa, 101, S. C. on appeal, 9 Morr. Min. Rep. 318; Morenhaut v. Wilson, 52 Cal. 263.

Oreamuno v. Uncle Sam M. Co., 1 Nev. 215; Waring v. Crow, 11 Cal. 367, 372.

Mallett v. Uncle Sam M. Co., 1 Nev. 157; Wade's Am. Min. Law, 33; Seamen v. Vawdrey, 16 Vesey Jr. 390, S. C. 13 Morr. Min. Rep. 62; Partridge v. McKinney, 10 Cal. 181; Dodge v. Marden, 7 Ore. 456, S. C. 1 Morr. Min. Rep. 63.

7 Marquart v. Bradford, 43 Cal. 526.