§ 498. The doctrine of this chapter restated.- Briefly summarized, then, the law is that the performance of annual labor being the condition upon which mining property may be held, a substantial compliance at least with the require 1892, 55 & 56 Vict., ch. 20; R. S. alive by renewal and the interest Quebec, sec. 1451. of the others becomes thereby forfeited. Regulations, Order in Council, Jan. 18, 1898, sec. 7. Ontario: The grantee or owner of a mining location must, during the seven years following the issue of a patent, expend in actual mining, exclusive of houses or roads, one dollar per acre during the first two years, and one dollar per acre per year during the remaining five years; and labor is computed at two dollars per man per day. Contiguous locations may be worked together. In default of such expenditure, upon report of the Director of the Bureau of Mines, all rights may be, by order of the lieutenant-governor in council, forfeited. R. S. Ontario, ch. 36, commonly called the Mines Act, Cir., p. 22, § 34. British Columbia: A free miner or company of free miners, after expending one thousand dollars on each full interest, without any return of gold or other minerals in reasonable quantities, and upon application by all the holders of the claim, may obtain one year's leave of absence. Placer Mining Act, 1891, ch. 26, sec. 39. Relative to dredging, the regulations require at least one dredge to be in operation upon the five miles of river leased to him, within two seasons from the date of the lease, and that a failure to work to the satisfaction of the minister of the interior renders the lease null and void. But where there is more than one lease, the operation of one dredge for each fifteen miles saves from forfeiture. Regulations, Order in Council, Jan. 18, 1898, sec. 5. Manitoba: The grantee and owner of any mining location sold under the provisions of the act must, during the five years immediately following the issuing of the patent, where the quantity contained in the patent exceeds one hundred and sixty acres, spend not less than four dollars per acre during the first five years, and where the quantity is one hundred and sixty acres or less, five dollars per acre during the first five years. The labor must be by grown men at the rate of two dollars and a half per day, or payment for explosives or other mining material for use on the particular parcel of land. Default of making such expenditure, upon report of the inspector, and order of the lieutenant ments of the statute is absolutely necessary. In other words, a valid location is the means of acquiring a mining claim, and annual labor is the condition upon which it is held. While there may not be any mere hair-splitting as to the actual value of the labor, it should be so near the required one hundred dollars in value as that it would be a denial of justice to deprive the claimant of his property or a forfeiture be adjudged. But when there is proof of a failure to do the necessary work, or when the claimant has pursued a mere perfunctory and dilatory course in attempting to hold his property, the law will not sustain him. In such case, however, the burden is on the person claiming the forfeiture to prove the same by a preponderance of the evidence. The labor required by the statute may be performed on or off a claim or group of claims so that it tends to develop and to facilitate the extraction of ore, and may consist in any act or work necessary for that purpose, whether it be the running of a tunnel, sinking a shaft, constructing a road in certain cases, the constructing a ditch to convey water or carry off debris, or in short any act, work or improvement which will in its natural and obvious effect enhance the value of the claim and tend towards its development and facilitate the extraction of the minerals it contains. That where claims are held in common, which means a community of interests, and it would be more equitable in the operation thereof to work them as a group, work may be done on one claim for the benefit of all, or may be done entirely off all the claims, as running a tunnel or procuring water, or the like. That the majority of cases hold that in order to operate a claim as a group, or a series of locations held in common, governor in council, forfeits the claim. Mines Act, Statutes of 1897, p. 35, § 9. New Brunswick: The governor in council may prescribe the num ber of days' work to be done on each area each year, and provide a forfeiture for failure. General Mining Act, 1891, § 30. it is essential that they be contiguous in the sense that they adjoin each other, or are not entirely separated. But there is no good reason for this rule or for these decisions, and the better reason seems to be, and one nearer in consonance with the entire spirit of the law, that the test in all cases which should be applied to annual labor is whether the work or improvements tend to develop the claim, and facilitate the extraction of the mineral and valuable contents therefrom. Any labor or improvements meeting this requirement will satisfy the statute; nothing else will. That each year is an entirety and stands independent of all others, and that no amount of work done or improvements made in one year will answer for another year. That the time in which annual labor is to be performed begins with each calendar year, and the first year begins with the commencement of the calendar year next succeeding the date of location. That proof of the performance of annual labor is required to be made by affidavit in many of the states and territories, and, while some of the local statutes assume to declare a forfeiture for failure to make this proof in the manner and within the time provided by statute, such statutes are merely directory, and the fact of labor is the test of compliance with the statute rather than the mode of making proof thereof, and that any attempt on the part of a state legislature to forfeit a claim for failure to make the proof in a particular manner is beyond the power of the legislature and void. Inasmuch, however, as most of the legislatures have made these proofs, when so made, prima facie evidence of the fact of annual labor, a sort of perpetuation of the proof thereof, and inasmuch as they are made competent evidence, which would be valuable in case of the death of the party performing the labor, it is best to comply with these statutes as to recording proof of annual labor, and thus perpetuate this evidence. CHAPTER III. OF FORFEITURE, ABANDONMENT AND RESUMPTION AFTER FORFEITURE. ARTICLE A. Introduction, Definition and General Principles. § 507. Forfeiture and abandonment - General observations. 510. Abandonment as viewed and defined by the courts prior to the statute. 511. Same subject — Sometimes mixed question of law and fact. 512. Same-Confined to possessory titles-Question of act and intention - Conveyance to alien. 513. Loss of discovery by abandonment - New discovery - Abandonment by amendment to application for patent- How made available. 514. Abandonment claimed by one co-tenant against another. 515. Forfeiture defined. 516. Forfeiture pursuant to agreement or a statute-Strict construction required. 517. Forfeiture must be claimed and taken advantage of, but does not result from change of location or sale. § 507. Forfeiture and abandonment-General observations. While the words "forfeiture" and "abandonment" are words of a totally different meaning, as a general rule, and in general literature, in mining law it is sometimes quite different. It will be necessary in considering this subject to define at considerable length the meaning of the word "abandonment." We shall also have to deal at length with the circumstances under which a forfeiture occurs. Stated broadly, our purpose in this connection is to enumerate and define those circumstances where a miner may lose his claim by operation of law, generally ascertained and denominated by the phrase "abandonment and forfeiture." § 508. Definition of abandonment and forfeiture as used in mining. The meaning of the terms "abandonment" and "forfeiture," as employed in the mining law, is generally, but not always, synonymous, differing in this respect from the general law. In mining law each accomplishes the same end, and generally mean the circumstances under which the loss. of a miner's interest in a mining claim is accomplished, by operation of law coupled with the act of the co-owner or other person. An abandonment can be said to take place only, as a general rule, where the occupant leaves the land free to the appropriation of the next comer, whoever he may be, without any intention to repossess or claim it for himself, and regardless of, and indifferent to, what becomes of it in the future.2 The definition of 509. Definitions of abandonment. "abandonment," standing alone, as applied to mining law, as distinguished from its other applications, as we shall see later, is not different from that used generally in the books in its ordinary acceptation. Property is said to be abandoned when it is thrown away, or its possession is voluntarily forsaken by the owner, in which case it will become the property of the first occupant; or, when it is involuntarily lost without the hope and expectation of again acquiring it, and then it becomes the property of the finder, subject to the superior claim of the owner.3 Abandonment includes both the intention to abandon and the act by which the abandonment is carried into effect. To constistitute an abandonment there must be a concurrence of the intention to abandon and the actual relinquishment of the property so that it may be appropriated by the next comer." It is stated by Bouvier to be "the relinquishment or sur 1 Wiseman v. McNulty, 25 Cal. ed.), p. 2; Stone v. Geyser Q. M. Co., 230. 52 Cal. 315. 2 Richardson v. McNulty, 24 Cal. 429. 31 Am. & Eng. Encyc. Law (1st 4 Id.; Bell v. Bedrock Tunnel Co., 36 Cal. 214. 5 Judson v. Mallory, 30 Cal. 299; Derry v. Ross, 5 Colo. 295. |