Meagher was reaffirmed (171 U. S. 78, 79, 43 L. ed. 82, 18 Sup. Ct. Rep. 895, 19 Mor. Min. Rep. 370), as it was again in Clipper Min. Co. v. Eli Min. & Land Co. 194 U. S. 220, 226, 227, 48 L. ed. 944, 949, 950, 24 Sup. Ct. Rep. 632, and in Brown v. Gurney, 201 U. S. 184, 193, 50 L. ed. 717, 722, 26 Sup. Ct. Rep. 509. It is true that there is reasoning to the contrary in Lavagnino v. Uhlig, 198 U. S. 453, 49 L. ed. 1123, 25 Sup. Ct. Rep. 716, but in Farrell v. Lockhart, 210 U. S. 142, 146, 147, 52 L. ed. 994, 996, 997, 16 L. R. A. (N. S.) 162, 28 Sup. Ct. Rep. 681, that language was qualified and the older precedents recognized as in full force. We deem it unnecessary to consider the distinctions attempted by the plaintiff between location and relocation, voidable and void claims, etc., as the very foundation of his right, the offer and permission of the United States under Rev. Stat. § 2322, U. S. Comp. Stat. 1901, p. 1425, was wanting when he did the acts intended to erect it. His entry was a trespass, his claim was void, and the defendant's forfeiture did him no good. There was some attempt before us to recede from the concession made below, that the defendant had a right to relocate under Rev. Stat. § 2324, U. S. Comp. 1901, p. 1426. We do not see how it could help the plaintiff if the proposition were incorrect, or any sufficient reason for listening to the argument in this case. Judgment affirmed. 33a насси BEALS v. CONE ET AL. 1900. SUPREME Court of COLORADO. 27 Colo. 473, 62 Pac. 948. On Petition for Rehearing. * PER CURIAM. 34 On the subject of annual labor, the court, by instruction No. 24, directed the jury as follows: "Upon this point the court further instructs you that the law does not presume a forfeiture by the failure to perform annual labor, and, the plaintiff claiming that the Ophir lode became forfeited for such reason, the burden of proving that the annual labor was not done thereon is on the plaintiff; and unless he has shown you, by a fair preponderance of the evidence, that the work was not done, you are to determine that question in favor of the defendants." The objection urged to this instruction is that it cast a burden upon the appellant [the plaintiff] which he was not required to assume. The evidence tended to establish that a valid location of the premises in dispute had been made by appellees. This location was prior to the only one under which appellant can base any claim. The act of con gress (section 2324, Rev. St.) provides that a failure to perform the necessary annual work shall render a claim open to relocation, provided the original locators have not resumed work upon the claim after failure and before relocation. The fair construction of this provision is that, as between the locator and the general government, the failure to do the annual assessment work does not result in a forfeiture. In other words, it is not necessary to perform the annual labor, except to protect the rights of the locator against parties seeking to initiate title to the same premises. As against such subsequent location, a prima facie case is made on the part of the original locator by showing a valid location. Hammer v. Milling Co., 130 U. S. 291, 9 Sup. Ct. 548, 32 L. Ed. 964. To otherwise express our views, it might be said that after a valid location the title thus acquired remains so, whether the annual assessment work is performed or not, until forfeited or abandoned. Renshaw v. Switzer, 6 Mont. 464, 13 Pac. 127, 15 Morr. Min. R. 345. It is the location by the new claimant, and not the mere lapse of time, which determines the right of the original locator. Little Gunnell Gold-Min. Co. v. Kimber, I Morr. Min. R. 536. So that a party seeking to initiate a claim to mining premises already legally located must prove that the annual labor thereon has not been performed, in order to establish that the ground so located is subject to location. In so far, then, as the rights of appellant depended upon the failure of appellees to perform the assessment work for 1897, it was incumbent upon him to establish this fact by a fair preponderance of the evidence, or, as the court stated, the burden of proof was upon him to show that the work for 1897 was not in fact performed. Hall v. Kearny, 18 Colo. 505, 33 Pac. 373; Johnson v. Young, 18 Colo. 625, 34 Pac. 173; Hammer v. Milling Co., supra. The petition for rehearing [after affirmance of judgment for defendants] is denied. Petition denied. Section 3.-Abandonment. MCCANN ET AL. v. MCMILLAN ET AL. 1900. SUPREME COURT OF CALIFORNIA. 129 Cal. 350, 62 Pac. 31. ACTION by J. C. McCann and others against J. C. McMillan and C. H. Barkley. From a judgment for plaintiffs, and from an order denying a new trial, defendant Barkley appeals. Affirmed. PER CURIAM.34 a * * * Prior to January 1, 1896, H. B. Stevens and Eugenia D. Porter located certain mining claims, covering sta Parts of the opinion are omitted. the same ground now claimed by plaintiffs, under locations made by themselves on January 1, 1897, the validity of which is the ultimate question here involved. No assessment work was performed by the prior locators during the year 1896 on any of the claims. On December 28, 1896, said Stevens and Porter sold and conveyed their said claims to the defendant McMillan. In December 30, 1896, McMillan and one C. E. Calm went upon said claims, and, as claimed by defendants, abandoned them, and afterwards, upon the same day and the next, relocated them for and in the name of defendant Barkley. Plaintiffs made their alleged locations on the morning of January 1, 1897, assuming that the ground was then open to location. Plaintiffs' title is controverted by appellant on each of two principal grounds, which will be noticed in their order: 1. That the ground in controversy was not open to location by the plaintiffs, because of the locations made for defendant Barkley on December 30, 1896: That the locations made prior to 1896, and which were conveyed by Stevens and Porter to McMillan on December 28, 1896, were at that time valid locations, is not questioned, and, but for the alleged abandonment of them by McMillan on December 30th, would have continued to be valid until midnight of December 31st, when the ground would become forfeited and vacant because no assessment work was done for the year 1896. The court found that the ground was not vacant at the time the Barkley locations were made, but was vacant on January 1, 1897, when plaintiffs made their locations, and therefore found, in effect, that there was no abandonment of the claims by McMillan on December 30th, but that he forfeited them by failing to do the assessment work on them, which failure left them vacant on January 1, 1897. Appellant contends that this finding is not justified by the evidence. Mr. McMillan had never seen these claims until December 30th. He bought them in Los Angeles on the 28th, and paid $100 for them. But McMillan testified that Mr. Calm was interested with him; that: "We were going to take them up to sell them to some other party. I refer to the claims in the deed from Porter and Stevens. Mr. Calm was interested with me in the purchase, and furnished some of the money. I was to stand my half of the expenses. I paid Stevens and Porter one hundred dollars. Mr. Calm paid me fifty dollars." The next day McMillan and Calm went to Daggett, and on the 30th went to the mines. McMillan testified that he was disappointed in the looks of the Dauntless, and thought, as a poor man, he could not afford to do his pro rata of assessment work, and expressed his opinion of the claim to Mr. Calm; that on the 30th of December he abandoned all interest in those three claims which he had under the deed. He further testified as follows: "On the 30th of December, when I abandoned those claims, I just said right there that I didn't want anything to do with them. I relocated them on the suggestion of Mr. Calm, but not for myself. There was, perhaps, ten minutes time in * * tervening between the time that I abandoned the claims and when we relocated them. * I abandoned all three claims the same day, the 30th. Those claims were located in the name of C. H. Barkley. When I gave up the claims, Mr. Calm said, 'Let us take them up for Mr. Barkley.' That is how we came to relocate them for Mr. Barkley. * * * I had not gone off the ground from the time I abandoned the claims until I relocated them. * * * I knew I could not hold the claims after the 31st unless I did some assessment work. Mr. Calm and myself did not go to the claims with the intention of locating them for some one else. I went there with the intention of locating them for myself." Mr. Calm also testified that he was disappointed and "didn't want any of it"; that he suggested that they locate the claims for Barkley, a friend of his who lived in New York, who had requested him to make some locations for him; that McMillan said "he didn't care who took it up.” We think the finding that there was no abandonment is justified by the evidence. "Abandonment," as was said in Myers v. Spooner, 55 Cal. 260, "is a question of intention, and of this intention the jury were to judge in view of all the facts and circumstances of the case. It is true, as stated in the brief of counsel for appellants, that Leathe testified at the trial that there was no intention by him or his co-locators to abandon the claims. But his testimony to that effect was not conclusive." They knew when they purchased the claims that the assessment work for 1896 had not been done, and that their title would expire with the expiration of the year. They intended, as was explicitly stated, to relocate for themselves; but to wait until January Ist would expose the claims to location by others who had an even chance with them. They could not relocate before in any one's name without an abandonment, and to say to each other that they abandoned, and within 10 minutes, and without leaving the ground, locate them in the name of a person in New York, and thus burden an absent friend with mining claims which they assert were not, to them, worth doing the assessment work upon, is at least improbable. But we find at the conclusion of Mr. Calm's testimony the statement: "When I went on the ground on the 22d of January I did not look for tools. We had men on the ground at that time, and, if I had seen tools, they might have been theirs. I did not notice whether there were any tools there that did not belong to us or our men." Who the witness meant by "we" or "us" is not stated. It nowhere appears that Barkley was at any time informed of the location having been made, or that he gave any directions or authority to have any work done. McMillan, by his answer, disclaimed all right, title, or interest in said claims or either of them; but he testified that he was there in January and April, 1897, and did work on the Mars in April of that year; that the Dauntless and Minerva also had work done upon them in 1897, and added, "I was there in possession of those claims;" that work was done in January and February; and that he was there ABANDONMENT. 393 in possession, doing the work, when the injunction was served. McMillan further testified that he was on those claims on December 31st, the day after the alleged abandonment; that "There was no way of getting in there, except on horseback, and I went to see if I could find a good place for a wagon road;" and that he was there on January 16th, also. Barkley's deposition was not taken, nor was there any evidence that he was ever informed that these mining claims were located in his name, or that work was being done for him, or that Calm or McMillan were his agents. Barkley's answer was verified by McMillan, but even that he did not do as agent, but as one of the defendants in an action in which he disclaimed all interest. We have gone into this matter thus fully because of the direct testimony of McMillan and Calm to the alleged abandonment. It was for the trial court to determine the fact, and we think the circumstances justify the conclusion that there was no abandonment. * ** Our conclusion is that the findings are justified by the evidence, and that there are no errors which would justify a reversal of the judgment. The judgment and order are affirmed. 35 CONN ET AL. V. OBERTO. 1904. SUPREME COURT OF COLORADO. 32 Colo. 313, 76 Pac. 369. ACTION by Peter Oberto against John E. Conn and C. A. Smith. From a judgment for plaintiff, defendants appeal. Affirmed. STEELE, J.-On May 16, 1900, Alfred Smith filed in the county clerk and recorder's office of the county of San Miguel his location certificate stating that on May 15, 1900, he duly discovered and located the Jupiter lode. Smith sold a tract of 150 by 100 feet within the boundaries of the claim, reserving mineral rights, and the defendants' through intermediate conveyances, became the owners of the portion sold by Smith, and at the time of the bringing of suit were in possession thereof. Smith also sold his interest in the Jupiter claim, and prior to September 11, 1901, H. M. Hogg, Joe Oberto, and James Shain were the owners of the location, their interests being one-half, one-fourth, and one-fourth, respectively. While the property stood in the names of Hogg, Joe Oberto, and Shain, Peter Oberto was given permission by Hogg and Joe Oberto to relocate the claim. On September 11, 1901, Peter Oberto located the Hattie lode, using the discovery shaft of the Jupiter and adopting the Jupiter 35 So "Such a thing as a conditional abandonment cannot be recognized. Where the owner allows strangers to hold a claim under color of title, standing by and intending to resume work only in case its development shows pay, his action amounts to abandonment. Trevaskis v. Peard, 111 Cal. 599.”— Morrison's Mining Rights, 14 Ed., 108. |