go, as we view it, very much to the extreme in announcing what constitutes a sufficient resumption. The facts showed that no work at all had been done during an entire year. The following January the original locator re-entered his claim and did about twenty-four dollars' worth of work, and again departed from it. The following August, no further work having been done, a relocator entered upon the ground and effected a valid location of the property. The court held this relocation premature, using the following language: "It is not necessary to decide that an attempt to assert a continuous right may be based upon a pretense of work so plainly a sham as that it will be disregarded. But here the work done was actual and valuable. The letter of the statute upholds the view, as to resumption of work, taken by the court below (that work had been resumed), and forfeitures and denouncements are not to be favored by basing them upon language which does not plainly and unmistakably provide for them." With entire deference to the court, we think such a construction as this is not warranted by the language of the statute and is not in con. formity with its letter or spirit. To say that because the improvements are "actual and valuable" a lesser amount than is required by statute will be sanctioned is in effect to say that the value of the labor or improvement is not important. Congress undoubtedly intended by this statute to require a certain amount in value of labor and improvements upon each claim during each year, and the court seems either to have overlooked this feature or to have entirely ignored it, and decided the case with a greater show of strength than of reason. As said by the supreme court of Montana: "Such a decision is only trifling with the law and the rights of the parties based on the law."2 1 Belcher Cons. G. M. Co. v. Deferari, 62 Cal. 160. 2 Honaker v. Martin, 11 Mont. 91, 27 Pac. Rep. 397, quoting from Morr. Min. Rights (6th ed.), p. 61. CHAPTER IV. RELOCATION - WHEN, BY WHOM AND UNDER WHAT CIR. CUMSTANCES MAY BE MADE-AND HEREIN OF EXTENDING BOUNDARIES AND AMENDING BY RELOCATION. § 570. Preliminary - Whence the law-Spanish and Mexican law prior to acquisition of California. 571. The statute and its provisions. 572. Relocation When and under what circumstances made forfeiture or abandonment of previous claim. 573. Same subject - When a relocation may or may not be madeWhere would-be relocator has conveyed claim - Estoppel to deny validity. 574. Overlapping claims - Necessity of relocating. 575. May be made by amendment No relocation permissible merely because proof of labor not filed. 576. Priority, when waived Burden of proof of forfeiture. 577. Further of relocation in the form of amendments. 578. No exploration or new discovery necessary. 579. Same subject — Observations as to new discovery shaft. 580. Relocation - Admissions by - Takes effect from its own date. 581. Marking essential - All other acts same as original location. - 582. Relocator entitled to improvements - But not to apply them on patent work. 583. By whom relocation may be made - Including former owners. 584. Same subject - Relocations made by former owners - Land public property. 585. May be done in hostility to other co-tenants. 586. Contrary rule where trust or fiduciary relations or contracts between the parties intervene. 587. Other circumstances of trust — Agency — Mining partnership— Prospecting contract. 588. Summary -The doctrine of this chapter restated. § 570. Preliminary-Whence the law-Spanish and Mexican law prior to acquisition of California.- By the law in force in Mexico, or New Spain, as it was also called prior to the acquisition of California from Mexico, and conse quently the law which was in force over the territory so acquired, there was ample provision for the case where there was a failure to do the required work. They had there a judicial or quasi-judicial proceeding to determine the rights of the previous claimant and whether the relocator, or denouncer, was entitled to possess the claim. Indeed much litigation would doubtless be saved if our own law required some such proceeding. The principal objection to be urged against it would likely be the cost that would probably have to be borne by the poor prospector; but we believe the best interests of all would be subserved if the government furnished such a tribunal, for a mere nominal fee, in the shape of a tax. By the Mexican law it was provided, "whoever shall denounce, in the terms hereinafter expressed, any mine that has been deserted and abandoned shall have his denouncement received if he therein sets forth the circumstances already declared in section IV (the provisions relative to registry in the first instance), the actual existence of the mine in question, the name of its last possessor, if he is acquainted with the same, and those of the neighboring mines, all of whom shall be lawfully summoned. And if within ten days they do not appear, the denouncement shall be publicly declared on the three following Sundays. This meeting with no opposition, it shall be signified to the denouncer that within sixty days he must have cleared and reinstated some work of considerable depth, or at least of ten yards perpendicular, and in the bed of the vein, in order that the mining inspector may inspect its course and inclination, and all its peculiar circumstances, as declared in the above named section IV." Provision is also made in the same chapter for the case where the former owner should appear and oppose the denouncement; and if he makes good his claim the denouncer pays the expenses, otherwise the former owner pays them. And if the denouncer does not do the required work within sixty days, he loses his right, and it is again open to denouncement. It thus provides a simple method for adjusting matters, while the circumstances are fresh in the minds of the witnesses, and to establish the rights of the relocator before he expends any considerable amount of money. $571. The statute and its provisions.- Having thus seen what led up to the enactment of the statute, we may next inquire into the provisions of the statute and the rulings of the courts on the same. The statute is a portion of section 2324, and after providing for the case of a failure to perform labor, it reads as follows: "The claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made." If we will bear in mind the strict reading of this statute, it will save us much trouble in reconciling some seeming inconsistencies in the opinions of the courts and of writers. It is that for all purposes the claim or mine is restored to the public domain, is again a part of it, and being so, is open to exploration and location as though no location had ever been made. § 572. Relocation- When and under what circumstances made- Not forfeiture or abandonment of previous claim. It necessarily follows, from the reasoning of the authorities cited in the chapter relative to forfeitures, that a claim is not the subject of relocation until the rights of the former locator have terminated in some manner known to and recognized by the law. Following this principle the federal court has held that a relocation of a mining claim. made before the period for performing annual labor has expired, and consequently before the owner is in default for failure to do the annual labor, is a mere nullity. And a claim not being subject to relocation until such default, his continued failure to do the work will not validate a relocation made before forfeiture.1 The supreme court of the United States has held that, since the right to locate mining property in the first in 1 Slavonian M. Co. v. Perasich, 7 Fed. Rep. 831. stance is a privilege conferred by congress, it can only be exercised within the limits prescribed, and therefore a location made upon lands actually held at the time under a prior valid and subsisting location will be void. And this is only another way of saying that where the first location of a mining claim is valid and the locators have kept it alive by a compliance with labor laws, any subsequent location, however regular in form, will be of no effect.2 It has been held that the fact of relocation is a solemn admission of the validity of the previous location, and that the relocator claims by virtue of a forfeiture thereof. But if testimony on behalf of the owner of a claim that it is located over an older location is not an admission that the claim was valid, perhaps this is going farther than is necessary in all cases, and that it could not be held an admission for all purposes. $573. Same subject - When a relocation may or may not be made-Where would-be relocator has conveyed claim-Estoppel to deny validity. It has become axiomatic in mining law that a location to be good at all must be good when made. The fiction of relation of acts, except for the purpose of amendments and a few other cases not 1 Belk v. Meagher, 104 U. S. 279. 2 Rose v. Richmond M. Co., 17 Nev. 25; Garthe v. Hart, 73 Cal. 541, 15 Pac. Rep. 91; Hall v. Arnott, 80 Cal. 348, 22 Pac. Rep. 200; Taylor v. Middleton, 67 Cal. 656, 8 Pac. Rep. 594; Belk v. Meagher, supra; Erhardt v. Boaro, 113 U. S. 527; Book v. Justice M. Co., 58 Fed. Rep. 106; Aurora Hill M. Co. v. Eighty-five M. Co., 34 Fed. Rep. 515; Strang v. Ryan, 46 Cal. 33; Souter v. Maguire, 78 Cal. 543; Du Pratt v. James, 65 Cal. 5; Smuggler M. Co. v. Trueworthy Lode, 19 L. D. 356; Branagan v. Dulaney, 2 L. D. 744; Stewart v. Rees, 25 L. D. 447; Kinney v. Fleming, 56 Pac. Rep. 753; Blake v. Thorne (Ariz.), 16 Pac. Rep. 270; Armstrong v. Lower, 5 Colo. 393; Weise v. Barker, 7 Colo. 178, 2 Pac. Rep. 921; Lockhart v. Rollins, 2 Idaho, 503, 21 Pac. Rep. 413; Gonn v. Russell, 3 Mont. 358; Sanders v. Noble, 22 Mont. 110, 55 Pac. Rep. 1037; South End M. Co. v. Tinney, 22 Nev. 122, 35 Pac. Rep. 89; Wills v. Blain, 5 N. Mex. 238, 20 Pac. Rep. 798; and see post, next section. 3 Wills v. Blain, supra; Belk v. Meagher, supra. 4 Patchen v. Keeley, 19 Nev. 404, 14 Pac. Rep. 347, 350. See post, § 580. |