CHAPTER XVII.

THE ABANDONMENT, FORFEITURE, AND RELOCATION OF LODE AND PLACER MINING CLAIMS.

91-92.

The Distinction between Abandonment and Forfeiture.

93. The Burden of Proof in Cases of Abandonment and of Forfeiture. The Kinds of Relocation.

94.

So closely connected with the subject of annual labor as practically to be part of it is the subject of the relocation of mining claims. But as relocation may follow an abandonment of a claim, as well as follow a forfeiture of it, and as the locator may himself desire to relocate his own claim, so as to take in ground not forfeited to anybody else, the subject of relocation deserves a chapter to itself.

THE DISTINCTION BETWEEN ABANDONMENT AND FORFEITURE. 91. An "abandonment" of a mining claim is the voluntary giving up of the possessory title with the intention not to reclaim it, while a "forfeiture" of a mining claim is the loss of the possessory title because some third person has located the land for failure of the forfeiting owner to perform the condition of annual labor required for its retention.

92. While abandonment is essentially instantaneous, and may take place despite the performance of the annual labor, abandonment, like forfeiture, requires relocation by a third person to make it final. Abandonment may not be made a means to evade the annual labor requirement.

The first thing to do is to distinguish between abandonment and forfeiture. The words are often used in the mining cases and statutes as synonyms,' but there is a clear distinction between them. The

1 In BLACK v. ELKHORN MIN. CO., 163 U. S. 445, 450, 16 Sup. Ct. 1101, 41 L. Ed. 221, for instance, the court says that a locator's interest in the claim may also be "forfeited by his abandonment." In another case in which the trial judge, in instructing the jury, used the word "abandonment," where he meant "forfeiture," it was held not to be prejudicial error. LITTLE DORRIT GOLD MINING CO. v. ARAPAHOE GOLD MIN. CO., 30 Colo. 431, 71 Pac. 389.

following statement of the California court expresses that distinction: "The term 'forfeiture,' as used in our mining customs and codes, means the loss of a right to mine a particular piece of ground, previously acquired, by neglect or failure to comply with the rules and regulations of the bar or diggings in which the ground is situated, prescribing the acts which must be done in order to continue and keep. alive that right after it has been once acquired. As a defense it is entirely distinct and separate from that of abandonment. It involves no question of intent, but rests entirely upon the mining rules and regulations, and involves only the question whether, in point of fact, those rules and regulations have been observed by the party seeking to maintain or perpetuate the right, regardless of what his intentions may have been; whereas the principal question involved in the defense of abandonment is one of intention. Was the ground left by the locator without any intention of returning, or making any future use of it? If so, an abandonment has taken place upon common-law principles, independent of any mining rule or regulation, and the ground has become once more publici juris and open to the occupation of the next comer." 2

The same distinction is noted in the following language from a Montana case: "Abandonment,' as applied to mining claims held by location merely, takes place only when the locator voluntarily leaves. his claim to be appropriated by the next comer, without any intention to retake or claim it again, and regardless of what may become of it in the future. A 'forfeiture' takes place by operation of law, without regard to the intention of the appropriator, whenever he neglects to preserve his rights by complying with the conditions imposed by law; that is, to make the required annual expenditure upon the claim within the time allowed. The former involves an inquiry of fact as to the intention as well as the act. In regard to the latter the inquiry is: Has the required expenditure been made as the law commands?"

The reason why a mining claim can be abandoned is that the title is possessory. It is only the legal title that technically may not be abandoned. "The doctrine of abandonment only applies where there

2 St. John v. Kidd, 26 Cal. 263, 271, 272.

8 MCKAY v. McDOUGALL, 25 Mont. 258, 262, 64 Pac. 669, 670, 87 Am. St. Rep. 395.

4 The notion that a patented claim may be abandoned in such a way as to make the land unappropriated public domain seems to exist in Sharkey v. Candiani, 48 Or. 112, 85 Pac. 219, 7 L. R. A. (N. S.) 791, but cannot be supported. For a case where coal excepted from a deed was held not abandoned, see Huss v. Jacobs, 210 Pa. 145, 59 Atl. 991. It seems that a relocation by the original locator may be abandoned by him without his necessarily abandoning the original location. See WETZSTEIN v. LARGEY, 27 Mont.

has been a mere naked possession without title. The right of the occupant originating in mere possession may, as a matter of course, be lost by abandonment. Where there is title, to preserve it there need be no continuance of possession, and the abandonment of the latter cannot affect the rights held by virtue of the former."

It may be well to repeat here that the reason why a mining claim may be forfeited for failure to do annual labor rests on a different basis. Forfeiture takes place because the United States has a right to impose what conditions it sees fit upon the disposition of its own property to purchasers. It has even been held that the United States, unlike private persons, may pass the legal fee in land to its grantee, and yet provide that, while he may devise it, he may not sell or convey it, except for the term of two years from time to time. In the case so holding the court said: "The counsel of defendants further insist that the condition of nonalienation imposed upon the fee simple contained in the donative act is repugnant to the nature of the estate and is therefore void. That old and well-settled rule of the common law does not apply to this legislative grant. The sovereign power of the Legislature is superior to the immemorial rules and usages of the common law. The legislative power of the state is restricted only by the state and federal Constitutions, and it may change the rules of the common law whenever such alterations are deemed best for the general welfare and do not conflict with the constitutional rights of citizens." "

While abandonment is not as common as forfeiture, it is important to find out what it is. Mr. Lindley is inclined to believe that the Supreme Court of the United States never ought to have recognized such a thing as abandonment, because a mining location has become vested with so many attributes as to be too like the legal title to real property for the doctrine to be desirable. The fact remains, however, that the Supreme Court of the United States has recognized the doctrine, and has declared that "it cannot be doubted that an actual abandonment of possession by a locator of a mining claim, such as would

212, 70 Pac. 717. A locator may abandon part of his location without forfeiting his right to the balance of the claim. TYLER MINING CO. v. SWEENEY, 54 Fed. 284, 4 C. C. A. 329. See Murley v. Ennis, 2 Colo. 300. To patent the part of one's claim containing the discovery shaft is not to abandon the unpatented part. MILLER v. HAMLEY, 31 Colo. 495, 74 Pac. 980. But see BROWN v. GURNEY, 201 U. S. 184, 26 Sup. Ct. 509, 50 L. Ed. 717.

5 Ferris v. Coover, 10 Cal. 589, 631.

6 Smythe v. Henry (C. C.) 41 Fed. 705.

7 Smythe v. Henry (C. C.) 41 Fed. 707. See Farrington v. Wilson, 29 Wis.

82 Lindley on Mines, p. 1196, § 642.

work an abandonment of any other easement, would terminate all the right of possession which the locator then had."

Abandonment a Question of Ascertained Intention.

11

The first thing to notice about abandonment is that whether or not it has taken place is a question of fact for the jury.10 Where abandonment occurs, it is because of an ascertained intention to abandon, and the abandonment is instantaneous.1 "Abandonment is a matter of intention, and takes place whenever the claimant of a mining claim goes away with no intention of returning to it, and with the intention of leaving it open for the next applicant." 12 It may take place even though the annual labor has been done, or the period for doing it has not expired,13 and does not depend upon entry by anybody else, though such entry and a relocation are necessary to prevent revival of the claim by resumption of work. "The question of abandonment can never arise, except where there has been possession, and then the animus revertendi is the simple test." 14

15

Forfeiture, on the other hand, is not dependent upon the intent of the locator, who loses his interest. It is not complete until there has been an entry by some one else with intent to relocate the property,' and under some state decisions is not complete even then, if the locator resumes work before the relocation is finished.1 16

9 BLACK V. ELKHORN MIN. CO., 163 U. S. 445, 450, 16 Sup. Ct. 1101, 1103, 41 L. Ed. 221.

10 TAYLOR v. MIDDLETON, 67 Cal. 656, 8 Pac. 594; Weill v. Lucerne Min. Co., 11 Nev. 200; MARSHALL v. HARNEY PEAK TIN MINING, MILLING & MFG. CO., 1 S. D. 350, 47 N. W. 290; Davis v. Dennis, 43 Wash. 54, 85 Pac. 1079.

11 Davis v. Butler, 6 Cal. 510; Waring v. Crow, 11 Cal. 366; Derry v. Ross, 5 Colo. 295. See St. John v. Kidd, 26 Cal. 263; Oreamuno v. Uncle Sam Gold & Silver Min. Co., 1 Nev. 215.

12 MOFFAT v. BLUE RIVER GOLD EXCAVATING CO., 33 Colo. 142, 148, 80 Pac. 139, 141. See Conn v. Oberto, 32 Colo. 313, 76 Pac. 369; Buffalo Zinc & Copper Co. v. Crump, 70 Ark. 525, 69 S. W. 572, 91 Am. St. Rep. 87. Abandonment can be found only on clear and convincing proof of intent to abandon. Loeser v. Gardiner, 1 Alaska, 641. It is negatived by continuing work after an ineffectual attempt to patent the claim. PEORIA & COLORADO MILL. & MIN. CO. v. TURNER, 20 Colo. App. 474, 79 Pac. 915. An abandoned claim becomes part of the public domain, subject to sale and disposition by the government. Migeon v. Montana Cent. R. Co., 77 Fed. 249, 23 C. C. A. 156.

13 Farrell v. Lockhart, 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Ed.

14 Stone v. Geyser Quicksilver Min. Co., 52 Cal. 315, 318; Davis v. Dennis, 43 Wash. 54, 85 Pac. 1079.

15 LITTLE GUNNELL MINING CO. v. KIMBER, 1 Morr. Min. Rep. (U. S.) 536, 539, Fed. Cas. No. 8,402.

16 See PHARIS v. MULDOON, 75 Cal. 284, 17 Pac. 70; Lacey v. Woodward, 5 N. M. 583, 25 Pac. 785. The doctrine of MCKAY v. MCDOUGALL,

The close connection between abandonment and intention is shown. in a Colorado case. There the defendant purchased a mining claim December 26, 1890, and shortly afterwards abandoned it, because he could not perform within the year the necessary assessment work. The defendant's son thereupon, on January 31, 1891, relocated the claim as an abandoned lode; but the relocation was invalid, because he gave the date of discovery as December 20, 1890. Thereafter defendant's son conveyed to defendant, and still later plaintiff located the ground. It was held that the defendant could not recall his abandonment by claiming that the relocation was to protect his rights under the original claim, and thus defeat plaintiff's location.17

The question of abandonment is thus one of intent, to be determined as a fact from the conduct of the mining claim owner. It may be proved by the testimony of the locator that he abandoned the claim at the time of the subsequent location,18 and one of several locators may ratify an abandonment made to a third person by the others. 19 The fact is that, "in order to sustain an allegation of abandonment, it must appear that there was a leaving of the claim without any intention of making any further use of it." 20 That is why an abandonment cannot be predicated upon the mere fact of a relocation being attempted.21 Accordingly, where the plaintiffs were driven away from their claims by hostile Indians, but left their tools at another mine in the vicinity, and did not return prior to the location by the defendants, partly because of the supposed continuance of Indian hostilities, and partly because of the required expenditure of money, and because they thought they had performed sufficient work upon the claims to entitle them to hold them, it was held that these facts negatived that intent on the part of the plaintiffs necessary to constitute an abandonment.22

25 Mont. 258, 64 Pac. 669, 87 Am. St. Rep. 395, has been negatived by the Montana act of 1907. Laws Mont. 1907, p. 21.

17 NILES v. KENNAN, 27 Colo. 502, 62 Pac. 360. See Davis v. Butler, 6 Cal. 510. Where a locator went away to be gone some years, and gave up all hope of returning to the claim, and did not arrange for the performance of the annual labor, there was held to be a proper showing of abandonment. Harkrader v. Carroll (D. C.) 76 Fed. 474.

18 Carter v. Bacigalupi, 83 Cal. 187, 23 Pac. 361.

19 Conn v. Oberto, 32 Colo. 313, 76 Pac. 369; Oberto v. Smith, 37 Colo. 21, 86 Pac. 86.

20 Bell v. Bed Rock Tunnel & Mining Co., 36 Cal. 214. See note 12, supra. 21 Weill v. Lucerne Min. Co., 11 Nev. 200.

22 MORENHAUT v. WILSON, 52 Cal. 263. So abandonment cannot be charged where a locator in possession is disseised. Lockhart v. Wills, 9 N. M. 263, 50 Pac. 318. See Buffalo Zine & Copper Co. v. Crump, 70 Ark. 525, 69 S. W. 572, 91 Am. St. Rep. 87. On the other hand, a co-owner who attempts to