tion, he cannot then be deprived of his interest in the claim.1

§ 51. When annual labor should commence. Prior to May 10, 1872, the amount of work and expenditure of money necessary to perfect a location was governed entirely by local rules and legislation, but at that date these rules were, in substance, formulated into an Act of Congress.2 By this act the amount of assessment work commenced at the date of the location and the work performed by the discoverer prior to the performance of all the acts necessary to complete his location, were considered and allowed as a portion of the first year's work.3 By the amendment of 1880, however, the first day of the year after the location was fixed as the date at which the annual assessment work should commence, the work of the discoverer looking to the completion of the location being necessarily excluded as part of the first year's work.5 But where no specific time is fixed as the date for the commencement of annual labor, if the same is to be performed within the year, the time will begin to run from the date of the location and the locator's rights to his claim could not be declared forfeited until he had failed to work his claim for one year from the date of location.6

1 Mor. Min. Rts., supra; Wade Amer. Min. Law, supra.

2 R. S. U. S. 2324; Wade Amer. Min. Laws, p. 52.

$ Ante, idem; Mor. Min. Rts. (10 Ed.), Chap. 10.

4 Act of Congress, Jan. 22, 1880, § 2.

5 Wade's Amer. Min. Laws, p. 53, § 29, where this act is considered and construed according to author's ideas.

6 Chapman v. Toy Long, 4 Saw. 35; Atkins v. Hendree, 1 Idaho, 108. "By the district rules the amount of labor was, I believe, generally fixed according to value, and in some districts the value of a certain amount of labor was arbitrarily fixed by rule; a rule requiring two days' labor in one year, was found to be the only labor requirement in one case." Wade's Amer. Min. Laws, p. 53, § 29; Leet v. John Dore S. M .Co., 6 Nev. 218. "What amount of labor would amount to $100.00 on a claim, is

§ 52. How long work should continue. The annual assessment work provided for by the statute 1 is annexed as a condition, in the nature of a condition precedent to the vesting of the title, of public land, to those operating the same for mining purposes. Until the location is perfected and the application for a patent is complete the locator subjects his claim to a forfeiture for a failure to perform the annual work and labor required by the law.2 But after the performance of all the acts necessary to a complete location and pending the decision upon the application for a patent, if the locator has paid the purchase money and obtained a certificate of entry, he is not required to continue the annual expenditure required by the statute, but is then excused from its terms.3 The patent, when issued, would relate back to the date of the completion of the location, and payment of the purchase money would give to the locator a vested right to a patent for his claim. Hence, the certificate of entry, as evidence of the payment of the purchase money, clothes him with sufficient muniments of title and makes him so far the proprietor of the land as to enable him to work the same or not, at his pleasure.4

of course a question of fact to be determined by evidence, and will be found to vary in different localities." Wade p,. 55, § 29, and cases cited. "The statute now in force was the first Act of Congress requiring annual labor, or assessment work,' as it is commonly called, as a condition of holding mining claims on the public domain. It provides for two classes of claims: (1) those located prior to May 10, 1872, and (2) those located subsequent to May 10, 1872. The first requires $10 worth of work to each 100 feet, and the latter $100 worth of work to each claim regardless of size." Ante, idem.

1 R. S. U. S., § 2324.

2 Act Cong., Jan. 22, 1880, § 5.

3 Aurora Hill Con. Min. Co. v. Eighty-five Min. Co. (C. C. D. Nev.), 34 Fed. Rep. 515.

4 Stork v. Storrs, 6 Wall. 402; Lessieur v. Price, 12 How. 74; Gibson v. Chouteau, 13 Wall. 72; Wade's Amer. Min. Law, p. 55; Aurora Hill Con. Min. Co. v. Eighty-five Min. Co. (C. C. D. Nev.), 34 Fed. Rep.

§ 53. Forfeiture for failure to work. - If the owner of a mining claim fails to perform the necessary work and labor required by law in order to perfect his location, such failure may amount to a forfeiture of his rights; but before a failure to perform work and labor, or to make the improvements required by law, can work a forfeiture of the locator's rights, it must be established by clear and convincing proof that the original locator failed to perform the work and labor, or make expenditures to the amount required by the statute.2 As to the sufficiency of the work and labor performed upon the claim, the certificate of the United States surveyor-general must be taken as conclusive, unless corrected by the land department before a patent has issued to the claim; 3 but if the claimant has made fraudulent representations in regard to the amount of work and labor performed, for the purpose of obtaining a patent to the same, the certificate of the surveyor-general would not be conclusive as to the amount of labor and improvements on the claim, and if the delinquent owner failed to make the necessary expenditures within the time allowed by law, his failure to perform the work and labor required would operate as a forfeiture of his claim.4

515; Heydenfeld v. Doney M. Co., 93 U. S. 641 (affirming s. Nev. 290). See also Courchaine v. Bullion Min. Co., 4 Nev. 376.

c. 10

1 Morgan v. Tillottson, 73 Cal. 520 (15 Pac. 88). "And a failure to comply with the Colorado statutes requiring the annual assessment work upon a mining claim is not excused by the fact that one of several joint owners of a claim promised the others that he would perform the work, and failed to do so; and such agreement between the parties cannot prejudice the rights of a third person making a valid relocation." Doherty v. Morris, 11 Colo. 12; 16 Pac. Rep. 911.

2 Hammer v. Garfield Min. & M. Co., 130 U. S. 291 (32 L. Ed. 964); 9 Sup. Ct. Rep. 548.

3 United States v. King, 9 Mont. 75; United States v. Iron-Silver Min. Co., 128 U. S. 673; (32 L. Ed. 571); 9 Sup. Ct. Rep. 195.

4 United States v. King, supra.

§ 54. Saved by work after failure.- The United States statute provides that a locator can prevent a forfeiture of his claim, resulting from a failure to perform the work and labor required by the statute, provided the original locator or his representatives, resume work upon the claim after such failure and before a subsequent relocation of the same.1 Hence, the fact that the locator has failed for the period of one year to perform the work and labor required by Act of Congress, will not, of itself, work a forfeiture of his claim, if he resumes the work, in good faith, before the claim has been relocated by others.2 But a resumption of work, after a failure to perform the same in accordance with the provisions of the statute,3 in order to save a forfeiture of the claim, and prevent a relocation by others, must be performed in honesty and good faith and not simply labor showing an intention to assert a claim to the property. Nor would a failure to comply with the statute and perform the work required thereunder, be excused by the fact, that one of several joint owners of the claim had promised the others that he would perform the work and make the expenditures required by law and subsequently failed to do so, the others depending on him to perform his contract and for this reason failing to work the claim; for although the agreement could be enforced, as against the original parties thereto, it could not operate to prejudice

1 Act of Congress, May 10, 1872, Ch. 152, § 5; Wade Amer. Min. Laws, p. 16, § 12. "And this resumption may take place at any time after the lapse of successive years in which such failure has occurred, with like effect as though the claimant had failed for but a single year, provided the claim was not abandoned." Wade Amer. Min. Laws, p. 58.

2 Lacey v. Woodward (N. M.), 25 Pac. Rep. 785. And the original locator's resumption of work upon a claim which has become subject to relocation, after notice of relocation posted, but before the relocator has marked his boundaries, is sufficient to prevent the lapse of the original location." Pharis v. Muldoon, 75 Cal. 284; 17 Pac. Rep. 70.

3 U. S. Rev. Sta., § 2324.

4 Honaker v. Martin, 11 Mont. 91; 27 Pac. Rep. 397.

the rights of a third party, making a valid relocation of the same claim.1

§ 55. Same Other circumstances excusing forfeiture. The legislature, in prescribing the act providing for forfeiture for a failure to perform the annual amount of assessment work contemplated by the statute, liberally permitted the locator to redeem his claim by performing the work before intervening rights had attached to the claim and if this had not been done the courts would perhaps have been equally liberal with the delinquent owner, on account of the odium attaching to all kinds of forfeitures.2

The courts have held that the locator would be excused from performing his annual amount of work and labor when circumstances existed which rendered it impossible for him to do so, and this is certainly in accordance with principles of equity. A locator could not be said to have abandoned his claim if the same were seized by another, who continued to hold exclusive and adverse possession of the same and as the locator could not recover possession of his claim, he would not be held to forfeit the same for a failure to do the required assessment work, during the time of such adverse possession.3 Nor would a locator be held to forfeit his entire claim, where he had only failed to work a portion of the same; but in case of a dispute as to a portion of his claim, he would have a perfect right to abandon such portion of his claim as may be in dispute, without forfeiting any rights he may have to the residue of his claim."

1 Doherty v. Morris, 11 Colo. 12; 16 Pac. Rep. 911.

2 Wade Amer. Min. Law, pp. 56-202; Mor. Min. Rts. (10 Ed.) 186, et sub.

3 Utah Min. & Mfg. Co. v. Dickert and M. Sulphur Co. (Utah), 21 Pac. Rep. 1002.

Lyler Min Co. v. Last Chance Min. Co. (C. C. App. 9 Ct.), 7 U. S. App. 463; 54 Fed. Rep. 284.