in any case for want of power. A power not conferred is withheld. And legislation upon subjects by congress which are peculiarly within its exclusive authority must be held, as a general rule, to exhaust the power and leave nothing for further enactment by state legislatures. Congress authorized state legislatures and the miners of the district to enact certain laws relative to the manner of locating and recording claims; it therefore and thereby withheld all other power.2 Besides, this is a power delegated to congress, and could only be redelegated within very narrow limits. The authority of congress over the territory and property of the United States is specially reserved by the federal constitution, and does not exist elsewhere.

§ 534. State statutes as to proof of forfeiture -- And herein of proof in general. Several of the states within the mining region have enacted statutes providing for recording of proof of notice to the delinquent co-owner either the proof of publication or the proof of personal service,— and providing that the recording of such proof shall have the effect to vest the delinquent co-owners' interest in the mine in the person or persons who performed the labor and gave the notice. Some such statutory provision would be entirely proper, but it is sufficient to observe with reference to any such statutes as we have indicated - that of California, for example that it is incomplete in that it does not provide for proof that the amount claimed has not been paid after the giving of the notice and before recording the proof of service or of publication, as the case may be.

The correct practice in all such cases would be to file the

1 Black v. Elkhorn M. Co., 163 U.S. 145; Camfield v. United States, 167 U. S. 520; United States v. Jones, 109 U. S. 513; Bonaparte v. Baltimore, 104 U. S. 592; Ex parte Brennan, Crabbe, 456, Fed. Cas. No. 1,830.

2 R. S. U. S., § 2324; Sutherland, Stat. Const., § 378; State ex rel. Pub. Co. v. Hogan (Mont.), 56 Pac. Rep. 818; Story, Const., § 451.

3 Const. U. S., art. I, § 8; Wilcox v. Jackson, 13 Pet. 516. See ante, $ 520.

proof of service, attached to the copy of the notice, ninety days after the service thereof, or a proof of publication of the printed notice, as the case may be, six months after the first publication thereof, with the affidavit of the forfeiture claimant that the amount has not been paid in the meantime by the person against whom the notice is directed, or by any other person for him, with the recorder of deeds in the county in which the property is situated. When this is properly done it should be held to have the effect of vesting the delinquent co-owner's interest in the person giving the notice.

§ 535. Summary The doctrine of this article restated. To briefly summarize the principles enunciated in the foregoing sections, we are justified in deducing the following conclusions therefrom:

Congress has provided a complete and summary remedy whereby a co-owner who fails to perform the annual labor required upon the claim, which is the condition upon which the claim is held, forfeits his interest in the claim to the coowner who did the work, upon such co-owner claiming the forfeiture and giving the notice required by statute.

That the law is not only constitutional, but is absolutely just, when considered in all its environments.

That the right is a personal one and must be given by the co-owner who did the work, to the delinquent co-owner, his legal representatives, heirs or assigns; and that this means a co-owner not only when the work was done, but when the notice was given.

Neither is it

That the form of the notice is not material. material to whom it is directed, provided the latter be at one time the owner of the interest, and provided also that it can be legitimately and fairly gathered from the notice: (a) the fact of work, (b) the amount thereof, (c) the year for which it is claimed, (d) the person who did the work, and that he was and still is a co-owner, (e) that the person to whom it was directed was at one time an owner, and the

further comprehensive statement including his heirs, legal representatives or assigns.

That state statutes requiring additional work of a particular kind are without authority and void; but that reasonable state statutory requirements as to recording the proof of forfeiture are entirely competent and proper.

ARTICLE C.

Of Forfeiture to the United States.

$540. Abandonment to the United States - Special definition. 541. Definition here.

542. Of the general doctrine of abandonment and forfeiture thereby. 543. Act and intent - Question for the jury.

544. Same-Forfeiture is not favored.

545. Presumptions of duty donc - Law and acts of claim owner construed against forfeiture.

546. Law must in general be complied with.

547. Cancellation of entry does not restore mineral lands to the public domain.

§ 540. Abandonment to the United States - Special definition. We have attempted to demonstrate in the preceding sections that abandonment and forfeiture are sometimes synonymous. They are so when they describe the result whereby a mining claim, once owned, claimed and operated by a person, is lost to him by failure to perform the condition under which it is held, that is, to do the annual labor as required by law. If a person fails to do the assessment work, his claim is forfeited upon another coming in and making a relocation. If he abandons it and goes away, it also becomes public property, and, in either event, is open. to the next comer. As was said by the supreme court of Arizona: "Abandonment has always rested in intention as

1 Kramer v. Settle, 1 Idaho, 485, 9 M. R. 561; Kinney v. Fleming (Ariz.), 56 Pac. Rep. 723; Carney v. Arizona G. M. Co., 65 Cal. 40; Du Prat v. James, 65 Cal. 555, 4 Pac. Rep. 562; Russell v. Brosseau, 65

Cal. 605, 4 Pac. Rep. 643; McCormick v. Baldwin, 104 Cal. 227, 37 Pac. Rep. 903. See also § 524, ante; post, § 542. For New Mexico statute on abandonment, see Appendix "B," § 63, New Mexico note.

Yet

well as in acts accompanying the intention. if, after putting up the initial monument and examining the claim, he wishes to abandon it, and does tear down the monument and go away with the intention of not going back, and in fact pays no further attention to the claim, the land covered by the claim is open to location the moment such act takes place and such intention is formed."1

§ 541. Definition here.- Proceeding further in the same direction, it is sufficient to observe that specially, and for the purposes of this article, abandonment is the loss of property by the voluntary act of a person, while forfeiture is the loss by abandonment, or by the involuntary act of the owner, regardless of his intention."

542. Of the general doctrine of abandonment and forfeiture thereby.- The question of forfeiture by operation of law, namely, the omission to perform the annual labor, or to contribute to the co-owner who did perform it, has been fully considered, and the loss of the property in either case cannot be questioned or afterwards disputed either by the person himself or by any one in privity with him. We have likewise noticed that other species of forfeiture by abandonment, where the owner voluntarily surrenders his title and claim, and departs therefrom without any intention of ever reclaiming it, but, on the contrary, with the fixed intention not to do so. His intention being demonstrated by his act, and in many cases by actual words of mouth, is considered in the cases as conclusive upon him, and he is estopped from asserting a contrary intention where adverse rights have grown up pursuant thereto and in consonance therewith. In the case just mentioned the voluntary abandonment, upon the property being claimed by another, is

1 Kinney v. Fleming, infra.

2 Wiseman v. McNulty, 25 Cal. 230; Waring v. Crow, 11 Cal. 366; Mallett v. Uncle Sam M. Co., 1 Nev. 188; Oreamuno v. Same, 1 id. 215;

St. John v. Kidd, 26 Cal. 263; Carter v. Bacigalupi. 83 Cal. 187, 23 Pac. Rep. 361.

3 Kinney v. Fleming (Ariz), 56 Pac. Rep. 723; Richardson v. Mc

just as effective and the loss is just as complete to the original claimant as in the case of an involuntary forfeiture. Thus,

§ 543. Act and intent - Question for the jury.— As we have seen,' forfeiture, or loss by abandonment, requires a union, or joint operation, of act and intent, and is generally a question of fact. But the mere act of the owners in going upon a mining claim and announcing to each other that it is their intention to abandon it, and that they do thereby abandon, whereupon they immediately, without leaving the ground, attempt a relocation in the name of a third person, not present or taking any part, does not constitute an abandonment of the claim; and a relocation so made is invalid for the reason that the ground was not at that time open to relocation.2

§ 544. Same-Forfeiture is not favored.- Since it is axiomatic that forfeitures are odious to the law, and for that reason are not countenanced or favored by the courts, all doubtful cases will be construed against the forfeiture. But while this is true, the law exacts a faithful compliance with the conditions required. Yet the burden of proving a forfeiture falls upon the person alleging it, and it is always a question of fact for the jury whether a mining claim had been abandoned or forfeited prior to relocation."

Nulty, 24 Cal. 239; St. John v. Kidd, 35 Cal. 263; Keane v. Canovan, 21 Cal. 291; Davis v. Purley, 30 Cal. 630; Willson v. Cleaveland, id. 192; Dougherty v. Creary, id. 290; Davis v. Butler, 6 Cal. 510; Davis v. Gale, 32 Cal. 26; Smith v. Cushing, 41 Cal. 97; Stone v. Geyser Q. M. Co., 52 Cal. 315; Richards v. Dower, 81 Cal. 44, 22 Pac. Rep. 304; Seymour v. Wood, 53 Cal. 303; Mallett v. Uncle Sam M. Co., 1 Nev. 188; Derry v. Ross, 5 Colo. 295.

1 See ante, §§ 510, 511, 512.

2 McCann v. McMillan, 129 Cal. 350, 62 Pac. Rep. 31.

3 Hammer v. Garfield M. Co., 130 U. S. 291.

4 United States v. Iron Silver M. Co., 129 U. S. 673.

5 Johnson v. Young, 18 Colo. 625, 34 Pac. Rep. 183; Dibble v. Castle Chief M. Co., 9 S. Dak. 618, 70 N. W. Rep. 1055.

6 Taylor v. Middleton, 67 Cal. 656, 8 Pac. Rep. 594.