the area in conflict does not thereby become the property of the junior locator, but if he desires to claim it he should do so by an amended location notice, including it within his boundaries. And in the absence of adverse rights intervening in the meantime, this is always permissible.2 § 492. Value of labor and improvements - Not essential that work be paid for.- It is quite obvious that no set rule as to the price of labor can govern in determining the value of the labor or improvements. The amount paid is not controlling, nor is the question as to whether the claim is benefited to the extent of the work claimed conclusive. In this, as in determining the sufficiency of the labor and improvements, the important question to be decided is whether or not the work done tends to develop the claim and is reasonably worth the amount claimed for it. And whether it is or not is a question of fact. Neither is it important or material that the labor or improvements, or any portion of them, have not been paid for, this being a matter entirely between the person performing the labor and the owner of the claim, and one which in no way affects the sufficiency of the labor or improvements. But proof of seventy-five dollars' worth of work during any given year is not proof of compliance with the statute." § 493. Work must be performed up to issuance of receiver's receipt.- The mere application for patent will not excuse the owner of mining property from the performance 1 Oscamp v. Crystal River M. Co., 7 C. C. A. 233, 58 Fed. Rep. 293; Belk v. Meagher, 104 U. S. 279; Johnson v. Young, 18 Colo. 625, 34 Pac. Rep. 173; Omar v. Soper, 11 Colo. 380, 18 Pac. Rep. 443. 2 Upon the question of amendments generally, see ante, §§ 425-26 et seq. 508, 35 Pac. Rep. 111. See also Clark v. American Flag G. M. Co., 7 C. L. O. 5; Geo. K. Willard, 4 C. L. O. 67. 5 Quimby v. Boyd, 8 Colo. 194, 6 Pac. Rep. 462. See also ante, § 482; Crown Point G. M. Co. v. Crismon (Oreg., 1901), 65 Pac. Rep. 87.. 6 Coleman v. Curtis, supra; Lock 3 See Coleman v. Curtis, 12 Mont. hart v. Rollins, 2 Idaho, 503, 21 Pac. 301, 30 Pac. Rep. 266. Rep. 413. 4 Mattingly v. Lewisohn, 13 Mont. 7 Mattingly v. Lewisohn, supra. of annual labor. But when application for patent has been made, and these proceedings have reached the stage where the applicant has paid the government price, and the receiver's receipt has been issued to him, he is then the owner of the claim, entitled to have the patent at once issued to him, and the further performance of annual labor is excused.' As said by Secretary Schurz: "An entry made is in all respects equivalent to a patent issued, in so far as third parties are concerned."3 § 494. By whom work should be performed. Of course, the work required by law must be done by the owners of the claim or some one of them, where there are more than one, or by some one in their behalf and at their instance and request. Work done in any other manner than this, except where it is done by a trespasser who has forcibly deprived the owner of his claim, as we have previously discussed, will not be considered as work done upon the claim.5 And each locator and each co-owner owes it to himself and is bound to see that the work is properly done during the statutory period, without waiting to see whether his coowners actually perform their share. The failure of one or more of the co-owners who have promised the other coowners to do the annual work will not relieve such other co-owners from the duty of having it performed within the statutory period." But where the owner of a claim, in order 1 South End M. Co. v. Tinney, 22 Nev. 19, 35 Pac. 89; Ferguson v. Belvoir M. Co., 14 L. D. 43. 2 Aurora Hill Cons. M. Co. v. Eighty-five M. Co., 34 Fed. Rep. 515, 517; Benson M. & S. Co. v. Alta M. & S. Co., 145 U. S. 428, 36 L. ed. 762; Alta M. & S. Co. v. Benson M. & S. Co. (Ariz.), 16 Pac. Rep. 555; Deno v. Griffin, 20 Nev. 249, 20 Pac. Rep. 308; American Hill Quartz Mine, September 26, 1878, Sickels' Min. Dec. 384; Gold Blossom Quartz Mine, 2 L. D. 767; American Hill 3 American Hill Quartz Mine, supra. See also Smith v. Van Clief, 6 C. L. O. 2, cited in Sweeney v. Wilson, 10 L. D. 157, 158. 4 Ante, § 489, notes 3, 4, 5. 5 Jupiter M. Co. v. Bodie Cons. M. Co., 11 Fed. Rep. 666. 6 Doherty v. Morris, 18 Colo. 105, 28 Pac. Rep. 85. to save it from forfeiture, relocates it under a different name, work done upon it and for its benefit, under both names, will be considered as work on the claim, and will be permitted to inure to the benefit of the owner thereof;1 the controlling question being: Was the work done with the intention of holding the claim and protecting it from forfeiture, and was it sufficient for that purpose? rather than the question: under what name was it done? § 495. Same-Work done by equitable owner- When receiver will be appointed to perform work.- A person holding an equitable interest in a mining claim, as, for instance, one who has purchased or otherwise acquired an interest, but has not received the legal title, will be permitted to do the assessment work, which, when done, if sufficient in other respects, will inure to the benefit of the claim and save it from forfeiture. In a recent case in the federal ..court for the southern district of California, it was held that where mining property which has not been patented is involved in litigation, the title to the whole claim being in dispute, and both claimants being thereby deprived of possession, the court is justified in appointing a receiver to take charge of the property, attend to the performance of the requisite annual labor and hold the same for the benefit of the successful party to the action. This is the only equitable view to take of a situation of this kind. Unless some such course as this were adopted, there would be nothing left for the successful party as the fruits of the litigation. § 496. How annual labor may be proved.- Several of the states and territories, notably Arizona, Colorado, Ne 1 Johnson v. Young, 18 Colo. 625, and New Mexico. Comp. Laws Nev. 34 Pac. Rep. 173. 1900, § 2716; Comp. Laws New Mex. 1897, § 2304, copied in full in Appendix "B," § 35, note. 2 Book v. Justice M. Co., 58 Fed. Rep. 106. See also Dolles v. Hamberg Cons. Mines Co., 23 L. D. 267; Tam v. Storey, 21 L. D. 440. This is regulated by statute in Nevada 3 Nevada Sierra Oil Co. v. Home Oil Co., 98 Fed. Rep. 673. vada, Utah and Wyoming, have enacted statutes providing for the manner of making proof of annual labor by the affidavit of some one of the owners, or by some other qualified person, setting forth where, when and at whose instance the labor was performed, and the kind, value and nature of it, as well as the amount actually paid therefor. All these statutes will be found copied at length in the Appendix. Most of them make proof, when made in accordance with their provisions, prima facie evidence of the matters contained in such affidavit. This is a direct and simple manner of making proof, and wherever it is possible to do so, proof should be made in substantial accordance with the requirements of the statute. But while many of these statutes, if not all of them, make failure to file and record such proof a forfeiture of the claim, the authorities are united to the effect that such legislation as this is at most only directory, any attempt at providing for a forfeiture being beyond the powers of state legislation, and that proof of such labor or improvements may be made the same as of any other fact in the case.1 And this must be the rule. It is the labor, and not the proof of it, that is required by the act of congress. It was undoubtedly the intention of the framers of the federal statute to permit proof of annual expenditure to be made in any competent manner; and there is nothing in the section delegating the power to state legislatures and miners of the district which authorizes the enactment of rules or regulations making the filing of proof of annual labor obligatory. The most that can be said of a statute of this kind, as we view it, is, as said by the supreme court of Montana, that it "relates not to the effect of doing the work or making the improvements as required by law, but to the method of pre 1 Book v. Justice M. Co., 58 Fed. Rep. 106; Davidson v. Bordeaux, 15 Mont. 246, 38 Pac. Rep. 1075; McGinnis v. Egbert, 8 Colo. 41, 5 Pac. Rep. 652; Quigley v. Gillett, 101 Cal. 462, 35 Pac. Rep. 1040; Murray 2R. S. U. S., § 2324. serving prima facie evidence of the fact that such requirement has been fulfilled."1 Still, as previously stated, such a requirement provides a simple manner of making prima facie proof of the performance of annual labor, and it is always advisable, and the safer course to pursue, to make proof as required by the local statute. In a recent case in Utah, since the enactment of its statute, which, however, seems not to have been considered in the case, a surveyor was permitted to testify as an expert, from his knowledge of the claim, whether the work done tended in fact to develop it.2 § 497. Development work is required by Canadian law. The laws of the different provinces in the Dominion of Canada are just as stringent in the requirement that labor must be performed upon mining claims, within stated periods, and, to a certain extent at least, in value, as is the law of the United States or as was the Mexican law, or as it is to-day. The intention is thus manifest, wherever mining is carried on, that one of the conditions of holding the claim, and indeed the only important one, is that it must be worked, or it will be forfeited. These Canadian laws may be of use to the reader, and as they are too much at variance with each other to permit a general statement covering them, we have thought it advisable to give a synopsis of them in the foot-note.3 1 Coleman v. Curtis, 12 Mont. 301, 30 Pac. Rep. 266. See also McGinnis v. Egbert, 8 Colo. 41; Dibble v. Castle Chief G. M. Co., 9 S. Dak. 618, 70 N. W. Rep. 1055; Book v. Justice M. Co., 58 Fed. Rep. 106. in Council, March 21, 1891, sec. 31. This includes the Provisional District of the Yukon. Quebec: Mining lands are sold on the express condition that within two years the purchaser must ex 2 Wells v. Davis, 22 Utah, 322, 62 pend in working the same not Pac. Rep. 3. 3 Dominion lands in Manitoba and the northwest territories: Section 31 of Regulations requires one hundred dollars' worth of work each year. Reg. Approved Order less than five hundred dollars, if for superior metals, and not less than two hundred dollars if for inferior metals; and the commissioner may cancel the sale in default of such performance. Act |