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As to the conclusion reached by the supreme court of Utah, there is every reason why the right to relocate should be given to strangers and should be denied to the original locator. Under the mining laws, discovery and appropriation are recognized as the sources of title to mining claims, and development by working as the condition of continued ownership until patent is obtained.1

After his discovery, the locator is allowed certain periods to perfect his location, and the period of one year from the first day of January next succeeding the date of his location in which to perform one hundred dollars' worth of labor.

Let us illustrate: A vein is discovered June 1, 1900. The locator has until January 1, 1902, in which to perform his work. He fails to do so; but on January 2, 1902, relocates the claim, basing his right to do so upon his own previous neglect to comply with the law. If he has the same right as a stranger to relocate under these circumstances, he has the same length of time allowed to a stranger to perform the first year's labor after the date of the relocation; that is, until January 1, 1904. On January 2, 1904, he may repeat this proceeding, and obtain an additional two years, and so on indefinitely. It seems to us that this is a manifest fraud upon the government. It is a perversion of the law, and in direct violation of its spirit and intent, to say that the original locator may take advantage of his own dereliction, and use his own neglect and wrong as a foundation to either perpetuate an estate or create a new one. The law under which he obtained his first privilege provides the only method by which his neglect can be condoned, and that is by resuming work prior to relocation. It is illogical to say that he may accomplish this result in any other

Erhardt v. Boaro, 113 U. S. 527, 535, 5 Sup. Ct. Rep. 560.2

way than by strictly pursuing the methods provided for by the statute.

There is another principle which seems to us to be decisive of the question: The forfeiture is not complete until a relocation has been made. It is the entry of a new claimant with intent to relocate the property, and not mere lapse of time, that determines the right of the original claimant.1

The right to enter and resume work prior to the relocation by another is evidence that the original estate is not wholly lost by the failure to do the work.2

The supreme court of Colorado thus forcibly states the rule:

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"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 a title to the same premises. . . . 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."' 8

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"Forfeiture is not complete until some one else has "appropriated the property."4

This is in accord with the views of the land department.5

If this doctrine be true, that the estate of the original locator, as between himself and the government, remains unimpaired by the failure to perform the work, how is it

'Little Gunnell M. Co. v. Kimber, 1 Morr. Min. Rep. 536, 539, Fed. Cas. No. 8402.

Lakin v. Sierra Buttes G. M. Co., 25 Fed. 337, 343.

Beals v. Cone (on rehearing), 27 Colo. 473, 83 Am. St. Rep. 92, 62 Pac. 948, 958.

McCarthy v. Speed, 11 S. Dak. 362, 77 N. W. 590, 593.

Wilson v. Champagne M. Co., 29 L. D. 491; Coleman v. McKenzie, 29 L. D. 359.

possible for such locator to terminate such estate and create a new one. He ought not to be permitted to re-enter and oust himself, predicating such re-entry and ouster on his own delinquency, and permitting him to re-enter and re-oust himself periodically to save the necessity of developing his claim.

To say that the original locator has the power within himself to make effectual a forfeiture arising from his own delinquency by perfecting a relocation, is to place in his hands the extraordinary privilege of holding mineral lands perpetually, without doing any work whatever, at least in those states where the relocator is not required to do preliminary work. Where he is required to perform such work, such performance might be treated as resumption, and no relocation is necessary. In any event, the rule upon this subject should be uniform, because it is based upon the federal statute.

As was said by the supreme court of California, the work prescribed in the act must be done, or the claim is open to relocation, unless work is resumed before the second location is made. The conditions imposed by the act of congress are wise and salutary, and are by no means onerous. "It is the duty of the courts "to hold the locators of mining claims bound by "them." 2

The right to relocate is given to others as a penalty imposed on the original locator for failure on his part to perform the conditions required of him. It is not conceded to him as a reward for his neglect, or as an inducement held out to him to evade the law.

There are several cases which may be said to support, inferentially at least, the doctrine of the Utah case, under discussion. These cases deserve consideration.

1 McCann v. McMillan, 129 Cal. 350, 62 Pac. 31.

Russell v. Brosseau, 65 Cal. 605, 608, 4 Pac. 643; Du Prat v. James, 65 Cal. 555, 4 Pac. 562; Wright v. Killian, 132 Cal. 56, 64 Pac. 98.

Saunders v. Mackey1 was an action to quiet title to a mining claim, where one co-tenant, after having agreed with his co-owners to represent the claim, failed to do so, and relocated in his own name, to the exclusion of his associates. The court suggested that the excluded cotenant had mistaken his remedy, which was either an action for damages, or to erect a trust, but held that the relocation was valid. The decision of the court seems to have been based upon the theory that the failure to perform the annual work ipso facto restored the lands to the public domain, a theory which is not supported by the weight of authority.

3

Lockhart v. Wills 2 and Lockhart v. Johnson arose out of facts analogous to those of Saunders v. Mackey, with one important distinction. The location in the latter cases was never perfected in the original instance. The preliminary notices were posted by one in the name of all the co-owners, but there was a failure to perform the acts required by the laws of New Mexico as a condition precedent to the creation of a valid location. After the lapse of the statutory period, within which the necessary acts were required to be performed, the co-tenant who initiated the location conspired with other parties to make a location excluding his original co-tenants. This location was made and perfected, and the excluded original associates brought ejectment. The courts held the later location valid. In fact, it was the only location which had ever been perfected. They further held that, under the circumstances, ejectment was not the proper remedy.

4

In the case of Conway v. Hart a claim had been abandoned for several years, when the original owners returned, relocated, and resumed work. The court held the second location to be valid as against one made later

15 Mont. 527, 6 Pac. 361.

2 9 N. Mex. 344, 54 Pac. 336.

181 U. S. 516, 21 Sup. Ct. Rep. 665. 129 Cal. 480, 62 Pac. 44.

by third parties. The case does not discuss any of the basic principles involved in the ultimate analysis of the subject under discussion.

The foregoing cases are all which have come under our observation which lend any aid to the solution of the problem. It may be that the doctrine of Warnock v. DeWitt is the correct one. But we are not able to reconcile it with the principles announced by other courts of equal dignity, which principles are necessarily involved in the determination of the question here discussed. The views of the author coincide with those of Mr. Morrison upon this point.1

406. Relocation by one of several original locators in hostility to the others.-If we are right in the conclusions reached in the preceding section, that the original locator cannot treat his failure to perform or resume work as the basis of a valid relocation, it must necessarily follow, that one of several locators seeking to obtain the entire title by reason of the failure of any of them to fulfill the requirement of the law, is likewise prohibited from making such relocation. If we are wrong in the deductions previously stated, it follows that a delinquent co-locator may relocate the claim, subject to such redress as the courts will afford the excluded co-owner.

The supreme court of Montana has held that mining claims owned by several in common must be "repré"sented"-that is, the work must be performed-as if owned by one person; that "representation" is a unity; that co-owners may cause representative work to be done on the claim according to their respective interests, but when completed it must amount to one whole representation; otherwise, the claim is not protected from relocation, and that under such circumstances one of the

'Morr. Min. Rights, 10th ed., p. 103.

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