§ 408. Manner of perfecting re- § 409. Right of second locator to locations-Statutory regimprovements made by the first. ulations. 8402. Circumstances under which relocation may be made. In dealing with the subject of relocation, it is not our purpose at this time to enter into a critical discussion of the subject of abandonment, forfeiture, or the preservation of the estate from relocation by a resumption of work. The scope of this article is limited to the manner in which claims may be relocated after the rights based upon the original location are, by reason of the default of the owner in fulfilling the requirements of the law, subject to extinguishment by a new entry and a new location. The circumstances under which the estate created by the perfection of a valid location may be extinguished by hostile relocation, and the manner in which such estate may be preserved from such relocation by the delinquent original locator, will be fully explained in a succeeding title.1 For a failure to perform labor or make improvements to the value of one hundred dollars annually, computing the periods from the first day of January next succeeding the date of location, the federal law provides that "The claim or mine upon which such failure occurs "shall be open to relocation in the same manner as if "no location of the same had ever been made, provided "that the original locators or their heirs, assigns, or "legal representatives, have not resumed work upon "the claim after failure before such location." 2 It is one of the essentials upon which the right to relocate exists that the contingency sanctioned by the statute must have actually happened, -that is, there must have been a failure on the part of the original 1 Post, tit. VI, ch. v, §§ 623-638; ch. vi, §§ 642-654. locator to perform the annual work. No relocation may be made to take effect in the future.1 The right of an original locator to amend his location for the purpose of correcting defects or embracing additional ground has been fully considered elsewhere.2 It is our present purpose to discuss the manner in which such relocations as are sanctioned by the federal law may be made and to whom the privilege of such relocation is extended. 2403. New discovery not essential as basis of relocation. It is a well-established rule that there can be no valid location of a mining claim without a discovery; but it has been held that it is not necessary that the locator should be the first discoverer of a vein, but it must not only be known to him, but must be adopted and claimed by him, in order to give validity to the location.* So, if the original location was based upon a valid discovery, and the relocator finds the vein exposed within the limits of the claim, this is sufficient upon which to base a relocation.5 The theory of the law upon which the relocation is permitted is, undoubtedly, that if the original locator who made the discovery manifests his unwillingness to proceed with the development of the ground, and his location becomes subject to forfeiture for failure to perform the necessary work, any one may succeed to the right based upon the original discovery by relocating the ground, so that successive relocations based upon 1 Belk v. Meagher, 104 U. S. 279. 2 Ante, §§ 396-398. 3 Ante, § 335. Nevada Sierra Oil Co. v. Home Oil Co., 98 Fed. 673; Hayes v. Lavig nino, 17 Utah, 185, 53 Pac. 1029; Jupiter M. Co. v. Bodie Cons. M. Co.. 7 Saw. 96, 108, 14 Fed. 354. Armstrong v. Lower, 6 Colo. 393, 395. successive forfeitures may all be founded upon the one discovery. A new discovery is not requisite for each relocation. 404. Relocation admits the validity of the original. -A relocation impliedly admits the validity of the prior location. There can be no relocation unless there has been a prior valid location, or something equivalent, of the same property.1 The courts draw a distinction between a locator and relocator, classing the former as an original discoverer of mineral before unknown, and the latter as the mere appropriator of mineral discovered by another who had failed to exercise the privilege conferred upon him by law. The relocation is equivalent to an admission that the relocator claims a forfeiture by reason of a failure on the part of the first locator to comply with the law. Such being the case, the only inquiry is, as to whether or not the original locator performed the requisite labor.2 405. Relocation by original locators.-In speaking of relocation by an original locator, we have no reference to locations made for the purpose of curing defects, or readjusting boundaries. We have called these amended locations, and, as such, have dealt with them in the preceding article. What we now refer to are cases wherein the original locator seeks to evade the requirements of the law as to development and annual expenditure, and endeavors to perpetuate his estate by periodical relocations. The question was presented to the supreme court of Utah in the following form: "Can the locator of a " quartz mining claim who has allowed his location to 1 Belk v. Meagher, 104 U. S. 279, 289. Wills v. Blain, 4 N. Mex. 378, 20 Pac. 798; Providence G. M. Co. v. Burke (Ariz.), 57 Pac. 641. 35 Ante, §§ 396-398. 66 lapse by a failure to perform the necessary work "make a relocation or new location covering the same 66 ground?''1 The court failed to see any reason why such right should be denied. It based its ruling upon the following grounds: (1) That right is recognized by the circuit court of the ninth circuit 2 and by the land department; a (2) The fact that a prior locator, after his right has lapsed, may renew it by resuming work, would appear to be a favor or right granted to such prior locator, but to deny him the right to relocate is to deny him a privilege which is given to strangers. The conclusion of the court is, that the prior locator, in addition to the right to resume work, and thus relieve himself from the danger of incurring forfeiture, should also have the same rights as strangers to relocate. We are fully aware of the weight to be given to the decisions of the supreme court of a state or territory, and for that reason it is with a great deal of hesitancy that we intrude our individual views in opposition to such a decision, in the absence of some authoritative ruling emanating from a court of equal dignity to support our theories. But the rule announced by the supreme court of Utah is so opposed to what we consider the true intent and spirit of the mining laws, that we feel justified in criticising it, and in doing so to deferentially present our reasons for upholding a contrary doctrine. Warnock v. DeWitt, 11 Utah, 324, 40 Pac. 205. This case was appealed to the supreme court of the United States. The appeal was dismissed for failure to comply with rule 10. Mem. Dec., 18 Sup. Ct. Rep. 949. Hunt v. Patchin, 35 Fed. 816. Acting Commissioner Holcomb, Copp's Min. Lands, p. 300. In the first place, we think the fallacy of the rule is exposed upon the face of the decision, ex visceribus suis, considering the cases cited in it as a part of the decision: The doctrine asserted by the supreme court of Utah, we respectfully urge, is not recognized by the circuit court of the ninth circuit in the case of Hunt v. Patchin.1 That case involved a question between original colocators, one of whom, by common consent of all, had relocated the claim in his own name, and afterwards undertook to claim the entire title as against his original co-tenants. This the court would not permit him to do. Under these circumstances, the relocating co-tenant could not, with any advantage to himself, deny the validity of the relocation, nor could he exclude his cotenants from participating in such title as he acquired. In this case, a certificate of purchase was issued to the relocating claimant alone. The validity of the relocation was never questioned by the land department, which tribunal was probably never advised that the basis of the relocation was the dereliction of the relocator and his co-tenants. All that Hunt v. Patchin attempts to determine is, that whatever right accrues to one of several original locators under a relocation which is made in his name, by common consent, inures to the benefit of all. But that any such right accrues, the circuit court did not attempt to decide. The ruling of the land department referred to 2 appears in the form of a letter addressed by Acting Commissioner Holcomb to a man in Leadville. It was not a litigated case. The acting commissioner was of the opinion, that one of several co-locators, all of whom are in default, may relocate in his own name and hold it adversely to his former co-tenants. 135 Fed. 816. • Copp's Min. Lands, p. 300. |