co-owners might relocate.1 If this be a correct statement of the rule, it is manifestly subject to the limitations pointed out by the decision of the supreme court of the United States announced in Turner v. Sawyer,2 wherein it is said that the general rule, that the purchase of an outstanding title, or encumbrance, upon the joint estate for the benefit of one tenant in common inures to the benefit of all, because there is an obligation between them arising from their joint claim and community of interest, and that one of them shall not affect the claim to the prejudice of others, should apply to a case where one co-tenant of a mining claim secures the entire title in his individual name.* The courts generally concede the rule to be, that where one of several co-owners in a mining claim applies for a patent in his own name, the excluded co-tenants are not adverse claimants within the meaning of the law requiring them to intervene in patent proceedings, as they claim equities which are based upon the legal title thus conveyed." The land department rulings are now in harmony with this doctrine.® Be that as it may, although the views announced by the supreme court of Montana seem to give support to the doctrine of the supreme court of Utah, cited in the 1Saunders v. Mackey, 5 Mont. 523, 6 Pac. 361. *150 U. S. 578, 586, 14 Sup. Ct. Rep. 192. 8 For a general discussion of rights and remedies between co-tenants or co-owners, see, post, §§ 788-793. • Followed in McCarthy v. Speed, 11 S. Dak. 362, 77 N. W. 590, 593, S. C. (2d appeal), 12 S. Dak. 7, 80 N. W. 135; Van Wagenen v. Carpenter, 27 Colo. 444, 61 Pac. 698. See, also, Freeman on Co-tenancy, § 151. Sussenbach v. First National Bank, 5 Dak. 477, 41 N. W. 662; Brundy v. Mayfield, 15 Mont. 201, 38 Pac. 1067; Doherty v. Morris, 11 Colo. 12, 16 Pac. 911. Thomas v. Elling, 25 L. D. 495, S. C., on review, 26 L. D. 220; Coleman v. Homestake M. Co., 30 L. D. 364; post, § 728. preceding section, we cannot see why the reasoning applied by us in that section to the case of an individual locator should not apply with equal force to one of several locators. In the latter case the obligation rests upon all alike to perform the required work. One of the co-tenants might save the entire estate by himself performing the labor. In such event, he would have a right of contribution against his co-tenants for their proportion of expenditures made to save the common estate,' which he might assert, either in an action for partition, or, perhaps, by "advertising out" under the provisions of the Revised Statutes. But to say that one co-owner can make his own delinquency, as well as that of his co-tenants, the basis for acquiring a new title, seems to us repugnant to the intent and spirit of the law.* 407. Relocation by agent or others occupying contractual or fiduciary relations with original locator.- An agent, trustee, or other person holding confidential relations with the original locator, will not be permitted to relocate mining claims, and secure to themselves advantages flowing from a breach of trust obligations." Neither will one in possession of an unpatented mining claim entering under a lease from the owner be permitted to relocate for non-performance of assessment 1See Beck v. O'Connor (Mont.), 53 Pac. 94; Oliver v. Lassing, 57 Neb. 352, 77 N. W. 802. Holbrooke v. Harrington (Cal.), 36 Pac. 365. 3 § 2324. Consult Royston v. Miller, 76 Fed. 50. Lockhart v. Rollins, 2 Idaho, 503, 514, 21 Pac. 413; Utah M. and M. Co. v. Dickert and M. S. Co., 6 Utah, 183, 21 Pac. 1002; Largey v. Bartlett, 18 Mont. 265, 44 Pac. 962; Fisher v. Seymour, 23 Colo. 542, 49 Pac. 30; Argentine M. Co. v. Benedict, 18 Utah, 183, 55 Pac. 559; Haws v. Victoria Copper Co., 160 U. S. 303, 16 Sup. Ct. Rep. 282; Van Wagenen v. Carpenter, 27 Colo. 444, 61 Pac. 698. See, also, Bunker Hill Co. v. Pascoe (Utah), 66 Pac. 574. work on the part of the owner.1 Where, however, a contractual or fiduciary relationship is terminated, the rule no longer applies, and a subsequent relocation by the former agent or trustee has been upheld.2 An original locator cannot suffer forfeiture and relocate, or cause the ground to be relocated by others in collusion with him, so as to cut off the rights of a mortgagee under a mortgage executed by such original locator.* It has been suggested by the supreme court of Arizona, that an original locator, after sale by quitclaim deed to a third person who fails to perform the annual labor, may relocate and hold the claim. But in such case the obligation to perform the labor rested upon his grantee, and not upon the original locator, and by relocating, he does not profit by his own failure to perform the work. His grantee occupies the position of the original locator, and the latter, in relocating, that of a mere stranger to the title. 8408. Manner of perfecting relocations-Statutory regulations.—With the exception of the necessity for making a new discovery, the relocation of an abandoned mining claim is made in substantially the same manner as the original.5 The ground is "open to relocation in the same manner 66 as if no location of the same had ever been made."'6 By this is meant, that all the requirements of the law as to marking of boundaries, posting notices, recording certificates, performance of development work, and such other acts as are required by the federal or state laws, 1 Justice M. Co. v. Barclay, 82 Fed. 554, 559; Yarwood v. Johnson (Wash.), 70 Pac. 123. Page v. Summers, 70 Cal. 121, 12 Pac. 120. 3 Alexander v. Sherman (Ariz.), 16 Pac. 45. 4 Blake v. Thorne (Ariz.), 16 Pac. 270. 5 Armstrong v. Lower, 6 Colo. 393. Rev. Stats., § 2324. except the discovery, must be complied with in cases of relocation to the same extent as in original locations. The original locator and the relocator, in this respect, are on the same footing.1 But a relocator may adopt stakes and monuments of a former location if they are still on the ground.2 Most of the precious-metal-bearing states have legislated upon the subject of relocating abandoned claims. Colorado has enacted a law which provides that the relocation of abandoned lode claims shall be by sinking a new discovery shaft and fixing new boundaries, in the same manner as if it were the location of a new claim; or the relocator may sink the original shaft ten feet deeper than it was at the time of the abandonment, and erect new, or adopt old, boundaries, renewing the posts, if removed or destroyed. In either case, a new location. stake shall be erected. In any case, whether the whole or part of an abandoned claim is taken, the location certificate may state that the whole, or any part, of the new location is located as abandoned property. Arizona, Idaho, Montana, Nevada,' New Mexico, North Dakota, South Dakota,10 Washington, and Wyoming,12 have statutes of the same general character. The statute of Oregon provides that "abandoned claims "shall be deemed unappropriated mineral lands, and 11 'Pelican and Dives M. Co. v. Snodgrass, 9 Colo. 339, 342, 12 Pac. 206. 2 Conway v. Hart, 129 Cal. 480, 62 Pac. 44. 3 Mills' Annot. Stats., § 3162. *Rev. Stats. (1901), § 3241. Laws of 1895, p. 25, § vii; Civil Code (1901), § 2560. Comp. Laws (1900), § 214. 8 Laws of 1889, p. 42, § iii; Comp. Laws (1897), § 2300. Rev. Code of 1895, § 1439; Id. (1899), § 1439. 10 Comp. Laws of Dakota, 1887, § 2010. Adopted by South DakotaLaws of 1890, ch. cv; Grantham's Annot. Stats. S. Dak. (1899), 2669. Laws of 1899, p. 69, § 8. 12 Laws of 1888, p. 89, § 21; Rev. Stats. (1899), § 2552. "titles thereto shall be obtained as in this act specified, "without reference to any work previously done thereon." There is no legislation upon the subject in either California or Utah. 66 The supreme court of Montana has held that if an original locator resumes work before the relocator remarks the boundaries, and performs all the acts required to perfect a valid relocation, the forfeiture is not worked, and the right to relocate is lost. A like doctrine is supported in California,3 in which state, however, no appreciable time is allowed a locator in which to mark his boundaries. Where, however, under statutes which either contemplate or provide for a series of acts, the performance of which necessarily requires time, such as the sinking of a new discovery shaft ten feet deep, or an old one ten feet deeper, the performance of any one of these acts in the series ought to give the relocator the necessary time to complete the others. Otherwise, it is difficult to see how a valid relocation could ever be made, without the consent of the original locator. He could resume work" at any time before the relocator had completed his development. Unless the relocator can be protected in his possession, for the purpose of completing his relocation, there is but little use in his attempting it. Each attempt at relocation would, at some stage, find the original locator in a state of "resumption. While forfeitures are odious, we think the courts are sometimes altogether too lenient in dealing with a class of people frequently found in mining camps, who will neither work themselves nor permit others to do so. 'Laws of 1898, p. 17, § 4. Gonu v. Russell, 3 Mont. 358; doctrine reaffirmed, McKay v. MeDougall, 25 Mont. 258, 87 Am. St. Rep. 395, 64 Pac. 669. 3 Holland v. Mt. Auburn G. Q. M. Co., 53 Cal. 149; Belcher Cons. G. M. Co. v. Deferrari, 62 Cal. 160; Pharis v. Muldoon, 75 Cal. 284, 17 Pac. 70. And see Klopenstine v. Hays, 20 Utah, 45, 57 Pac. 712. Ante, § 339. |