§ 554. Wide margin between abandonment and reasonable diligence. In the last case cited in the preceding section the circuit court of appeals of the eighth circuit considered this case in great detail and embellished their opinion with the logic of the situation, distinguishing the line of demarkation between reasonable diligence on the one hand and abandonment upon the other. These words were used: "There is a wide margin between the line of abandonment and that of reasonable diligence, and we have no doubt the courts will so apply the rule of diligence, under this section, that the prompt and energetic prosecutor of a tunnel will receive the just rewards the act of congress guarantees to his diligence, while the slothful and negligent will not be permitted to deprive the other prospectors of the rights and privileges the act secures to them."1 $555. Abandonment and forfeiture of a tunnel controlled by general rules. In an earnest desire, and we believe a just one, to restrict tunnel rights within the narrowest limits as respects the duty to perform work thereon with diligence, the wish might well be expressed that tunnel rights were controlled by special rules. But we feel that the logic of the situation and the law are otherwise; from which we are bound to say that the general doctrine of abandonment applies, and that this is generally a question of fact. And as in all other cases, to constitute an abandonment as distinguished from a forfeiture, 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. Thus it is that a tunnel right, like any other, may be abandoned; but neglect to work alone does not effect an abandonment, while it may operate 1 Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 66 Fed. Rep. 200. 2 Marshall v. Harney Peak T. M. & M. Co., 1 S. Dak. 350, 47 N. W. Rep. 290; Taylor v. Middleton, 67 Cal. 656, 8 Pac. Rep. 594; Myers v. Spooner, 55 Cal. 257; ante, $$ 510, 511, 512, 543, 544 and notes. 3 Judson v. Mallory, 40 Cal. 299. to deprive the tunnel claimant of his rights to blind lodes on the line of the tunnel.1 § 556. Forfeiture under the special six months' rule.— The law provides for a forfeiture if the work upon the tunnel shall be stopped for a period of six months. But no dog-in-the-manger policy, perfunctory work, or merely doing a day's work in each six months, will satisfy the statute. A failure to prosecute the work on the tunnel for six months shall be considered an abandonment of the right to all undiscovered veins on the line of such tunnel, says the statute.? It is apparent that honest, diligent work alone will satisfy the statute; that is to say, reasonable diligence under all the circumstances. In the language of the circuit court of appeals, speaking of the statute, "the last clause provides that the failure to prosecute the work upon the tunnel will be construed as an abandonment," etc. ARTICLE E. Resumption After Forfeiture. 560. No forfeiture or abandonment is complete until entry and relocation by relocator. 561. Resumption before relocation saves from forfeiture - Bona fide resumption necessary. 562. Race with a relocator not required - The general rule. 563. Same-What is a sufficient resumption. 564. An extreme doctrine as announced by the supreme court of California-Trifling with the law. 1 Morr. Min. Rights (8th ed.), p. 183. See also Fissure M. Co. v. Old Susan M. Co. (Utah), 63 Pac. Rep. 587. 2 R. S. U. S., § 2323. 3 Glacier Mt. S. M. Co. v. Willis, 127 U. S. 471; Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 167 U. S. 110; Copp's Min. Lands, p. 34; Ellet v. Campbell, 18 Colo. 510, 33 4 Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 66 Fed. Rep. 200, 13 C. C. A. 390. § 560. No forfeiture or abandonment is complete until entry and relocation by relocator.- Manifestly neither abandonment nor forfeiture under the federal statute can result, ipso facto, from any act or omission on the part of a claim owner alone; that is to say, no mere statute of limitations runs against the claim owner in this regard. There must be some person seeking to make a location in good faith to claim it. Whence it follows that until entry and location by a relocator asserting his rights, and the completion of the relocation in the manner required by law, the original locator may re-enter and resume his original estate. Thus it is, § 561. Resumption before relocation saves from forfeiture Bona fide resumption necessary. The proviso in the statute "that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such relocation," has been construed by the courts to mean that any failure to do annual labor, for whatever length of time, does not of itself constitute a forfeiture, unless a relocation of the claim bas been made by others after the claim is open to forfeiture and before the owner has resumed operations. The supreme court of the United States defined the rights of the original locator thus: "His rights after resumption are precisely what they would have been had no default occurred." In California the following instruction was upheld: "Unless, before the alleged location by the defendant of the ground in controversy, the plaintiff had done some work with the bona fide intention of doing the balance of the work during the year, it is against the policy of the law, and a fraud against the government and the law, to hold quartz claims by merely doing a few dollars' worth of work 1 R. S. U. S., § 2324. 2 Justice M. Co. v. Barclay, 82 Fed. Rep. 554; Belcher Cons. M. Co. v. Deferarri, 62 Cal. 160; Hirschler v. McKendricks, 16 Mont. 211, 40 Pac. Rep. 290; Lacy v. Woodward, 3 Belk v. Meagher, 104 U. S. 279. thereon at or near the year next following the year in which claimant failed to do the necessary work, when such work is not commenced with a bona fide intention of being continued until the full amount is done." 1 The supreme court of Montana has held that however derelict the original locator may have been in performing his annual labor, if he has resumed operations upon his mining claim with the bona fide intention of continuing operations until the requisite amount of work has been done, before the claim has been actually located by another, he will be entitled to hold his claim.2 § 562. Race with relocator not required - General rule. Here, as in the case of ordinary resumption of work, a race with the relocator is not required. And where the intention to abandon does not exist, but, on the contrary, the original locator intends to resume, and is seasonably and in good faith seeking to assert his rights, with the honest. intention of resuming operations, he will generally be protected in such resumption under his original title.3 As was said by the supreme court of Arizona: "It is also well settled that until a claim has been abandoned or has been forfeited, no other location can be made of the ground. The decisions go so far as to make it settled law that, if the first locator resumes work at any time even after the ex 1 McCormick v. Baldwin, 104 Cal. 232; Little Gunnell M. Co. v. Kim227, 37 Pac. Rep. 903. ber, 15 Fed. Cas. 649. 2 Honaker v. Martin, 11 Mont. 91, 27 Pac. Rep. 397. See also Hirschler v. McKendricks, 16 Mont. 211; Gonn v. Russell, 3 Mont. 358; Belk v. Meagher, 3 Mont. 65; North Noonday M. Co. v. Orient M. Co., 1 Fed. Rep. 522; Jupiter M. Co. v. Bodie Cons. M. Co., 11 Fed. Rep. 666, 7 Sawy. 96; Lakin v. Sierra Buttes M. Co., 25 Fed. Rep. 337, 11 Sawy. 3 Pharis v. Muldoon, 75 Cal. 284, 17 Pac. Rep. 70; Newbill v. Thurston, 65 Cal. 419, 4 Pac. Rep. 409; Belcher Cons. G. M. Co. v. Deferrari, 62 Cal. 163; Justice M. Co. v. Barclay, 82 Fed. Rep. 554; Little Gunnell M. Co. v. Kimber, 15 Fed. Cas. 629, No. 8,402; Jordan v. Duke, 53 Pac. Rep. 197; Gonn v. Russell, supra; Klopenstine v. Hays, 20 Utah, 45, 57 Pac. Rep. 712. piration of the year, but before other rights attach in favor of relocators, he preserves his claim.' § 563. Same-What is a sufficient resumption.- As we have seen, it is not the policy of the law to require a race by the original locator with a relocator. And where a party is seeking to avail himself of the failure on the part of the original locator to do the requisite amount of work, he must, in making his relocation, comply with the law in all respects, or his relocation will be of no avail, as against the original locator, who has undertaken in the meantime, in good faith, to resume operations.2 Thus, in a California case where the work was not done, as required by law, during a certain year, the would-be relocator, on the first of January following, posted his notice of location, but did not mark his boundaries until the fifth day of January. In the meantime, at the usual hour of commencing work, on the first of January, the original owner resumed work and did ten dollars' worth of work before the fifth day of January, and afterward during that year performed two hundred dollars' worth of additional work and improvements. The supreme court, in deciding the case, held that the marking of boundaries being essential to constitute a valid location, a sufficient resumption had occurred before such location was completed. The facts in this case show an apparent honest. intention on the part of the original locator to resume operations upon his claim, and to in all respects comply with the statute, which is all that is required. The decision is undoubtedly correct. § 564. An extreme doctrine as announced by the supreme court of California-Trifling with the law. The supreme court of California, in one case, took occasion to 1 Jordan v. Duke, 53 Pac. Rep. 197. See also Belk v. Meagher, 104 U. S. 279. 2 Lacey v. Woodward, 5 N. Mex. 583, 25 Pac. Rep. 785; Newbill v. Thurston, 65 Cal. 419, 4 Pac. Rep. 409. 3 Pharis v. Muldoon, 75 Cal. 264, 17 Pac. Rep. 70. See also Newbill v. Thurston, supra. 4 See authorities cited in notes to § 491, ante. But see post, § 564. |