the paper he files, it is a question of fact whether what has been accomplished is an amendment, or is a relocation in a strict sense. The difficulty arises in part because an additional certificate need not. state the purpose for which it is filed.178 "If ground once included within the location of a lode mining claim be abandoned, and a new location made thereon as abandoned ground, said location dates only from the relocation thereof as abandoned ground, and does not relate back to or obtain any rights on account of the location which has been abandoned, and that the law makes a distinction between a relocation and an amended location certificate, although both may be designated as amendments in such location certificates." 179

181

Accordingly a relocation "right over the top" of the old location, made in order to take in more ground, and in order to change the name of the claim, is practically nothing but an amendment of the old. 180 Not every amendment to change the name of a claim is certain to be valid, however; for if the new name is adopted to deceive the co-owner whose interest is being forfeited for his failure to contribute to annual labor, or to deceive one who would otherwise adverse in patent proceedings, that is fraud for which appropriate relief will doubtless be given.1 So where one locator gets conveyances from his fellow locators for the purpose of obtaining a patent for the benefit of all, then files an additional location certificate taking in further ground in his own name, and afterwards obtains a patent to the claim as described in the amended certificate, it is held that the additional ground is acquired by him in trust for all.182 The court said that "the amended location certificate presupposes and is based upon an original. Halleck was only able to file an amended location certificate by reason of the fact that the original had been filed by his grantors," 183 and accordingly he was seeking to reap a profit out of trust property. So an amended location of the major portions of the original location, made by one who

178 JOHNSON v. YOUNG, 18 Colo. 625, 628, 629, 34 Pac. 173.

179 Cheesman v. Shreeve (C. C.) 40 Fed. 787. In BEALS v. CONE, 27 Colo. 473, 62 Pac. 948, 83 Am. St. Rep. 92, a so-called amendment was called a relocation, and the location dated only from the new certificate. Prior to that time the ground had been located by others, so the relocation was ineffective.

180 SHOSHONE MIN. CO. v. RUTTER, 87 Fed. See Richards v. Wolfling, 98 Cal. 195, 32 P. 971; Colo. 625, 34 Pac. 173.

181 Morrison's Mining Rights (13th Ed.) 135, 136. 16 Colo. 188, 27 Pac. 240.

801, 31 C. C. A. 223. Johnson v. Young, 18

See Seymour v. Fisher,

182 HALLACK v. TRABER, 23 Colo. 14, 46 Pac. 110. 183 23 Colo. 15, 16, 46 Pac. 110.

has parted with title to the claim, cannot be recognized as securing any right to him, but may secure a benefit for his grantee, if he acted as the grantee's agent for the purpose.154

Acts Accompanying Relocation by Amendment.

With reference to relocation by amendment, just as with reference to relocation on forfeiture of the previous location, whatever is necessary to the success of the relocation must be done. If the boundaries are changed, then the location notice and markings should be changed to conform thereto, and all posts and monuments, as well as discovery workings, etc., made to comply with the local statutory requirements. As the amendment takes effect by relation, the discovery shaft, if already the required depth, need not be deepened, and in general, so far as the original location conformed to the law and is not necessarily altered by the amendment, no change need. be made. Then the new location certificate must, of course, be executed with the same particularity in every detail that was required in the original.

THE FORFEITURE OF IMPROVEMENTS.

97. The relocator of a forfeited claim is held to be entitled to all improvements made by the original locator which have actually become a part of the land.

With reference to mining claims relocated in such a way as to forfeit the right of previous locators, it will often be of considerable importance to ascertain whether improvements are forfeited with the land. While the cases on the point are not numerous, the question is treated by the courts as one of whether the improvements have actually become a part of the land. Ever since the early California case, in which it was held that "an engine and pump became a part of the realty, although located upon public land," 185 the identity of the improvement with the realty has seemed to be the test. The one who makes an agricultural land entry and the locator of a mining claim both know, when they annex personalty to the realty, that the outstanding legal title is in the United States, and consequently they are to be judged by the same rule of fixtures as is applied against the mortgagor in a state where the mortgagee has the legal title to the land. In such a state the secret intent of the mortgagor in putting

184 Gray Copper Lode, 18 Land Dec. Dep. Int. 536.

Compare the water right case of De Wolfskill v. Smith, 5 Cal. App. 175, 89 Pac. 1001.

185 MERRITT v. JUDD, 14 Cal. 59.

personalty on the land cuts no figure, and the sole question is whether, if there had been no mortgage, the courts would presume that they were improvements on the land.186 For instance, an engine house with a 15 horse power engine, with boiler and attachments. fastened to the realty and used for the development of the mining claim, were held to be real property, belonging to a relocator, and not personalty, subject to execution for the previous locator's debts.187 On the other hand, a cabin set on blocks, unattached to the soil, and a portable fence, resting wholly on the surface of the land, were held not to be part of the realty."

188

The land department has ruled that old improvements obtained by relocation do not count as part of the $500 expenditure required before patent can be obtained.189 Whether those old improvements will count for such purpose if the relocator actually pays the old locator for them, query? One who buys a mining claim may have the benefit of all expenditures made by his grantor; 190 but a relocator is not a grantee of the forfeiting locator, and it is difficult to see why paying the old locator for the improvements should enable them to count towards the $500, when paying a third person for work which he did on the claim for his own benefit does not count as part of the required annual expenditure.191

186 Southbridge Savings Bank v. Mason, 147 Mass. 500. 18 N. E. 406, 1 L. R. A. 350; McConnell v. Blood, 123 Mass. 47, 25 Am. Rep. 12.

187 ROSEVILLE ALTA MIN. CO. v. IOWA GULCH MIN. CO., 15 Colo. 29, 24 Pac. 920, 22 Am. St. Rep. 373. See accord as to fixtures on nonmineral public lands. Treadway v. Sharon, 7 Nev. 37; McKiernan v. Hesse, 51 Cal. 594; Collins v. Bartlett, 44 Cal. 371.

188 Pennybecker v. McDougal, 48 Cal. 160.

189 Yankee Lode Claim, 30 Land Dec. Dep. Int. 289; Russell v. Wilson Creek Milling Co., 30 Land Dec. Dep. Int. 322. See cases infra, p. 343, note 2. 190 Tam v. Story. 21 Land Dec. Dep. Int. 440.

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

102. Conflicts of Lodes and Placers with Older Locations.

THE FIVE HUNDRED DOLLARS EXPENDITURE.

98. Any qualified owner of a mining claim upon which he and his grantors have expended $500 worth of labor or have made $500 worth of improvements, of a kind that meets the requirements of annual labor or annual improvements, may apply for a patent for such claim.

By the express terms of the federal statute any qualified owner of a mining claim upon which $500 worth of labor has been expended or $500 worth of improvements has been made by himself or his grantors may apply for a patent therefor. The first thing for an intending applicant for patent for a mining claim to do is to make sure that the required expenditure on the claim has taken place, or can be completed during the period of the publication of notice of the application for patent. He must bear in mind that improvements made by a former locator who has abandoned or forfeited the claim cannot be included in the amount,2 though it seems that the applicant may count toward the $500 any work performed by himself in good faith on a placer prior to its location. By the express terms of the statute a grantee applicant may count expenditures made by his grantor; and

1 Rev. St. U. S. § 2325 (U. S. Comp. St. 1901, p. 1429).

2 Land Office Regulations, rule 158; Yankee Lode Claim, 30 Land Dec. Dep. Int. 289; Russell v. Wilson Creek Consolidated Mining & Milling Co., 30 Land Dec. Dep. Int. 322; Tough Nut No. 2 and Other Lode Mining Claims, 36 Land Dec. Dep. Int. 9; Aldeberan Mining Co., 36 Land Dec Dep. Int. 551. 3 Clark v. Taylor, 20 Land Dec. Dep. Int. 455.

4 Rev. St. U. S. § 2325 (U. S. Comp. St 1901, p. 1429).

he may do this even though he amends the location certificate so as to change the name of the claim."

Although the federal statute seems by its terms to contemplate a separate application for patent for each claim, the land department has exercised its discretion by permitting one application to embrace several contiguous locations held in common; * and in the case of the application for patent for such a group or consolidation of claims the land department, reversing earlier rulings that $500 in improvements as a total for the so-called consolidated claim was enough, now requires proof that an amount equal to $500 for each location has been expended upon and for the benefit of the entire group. Whatever work may be counted as part of the annual labor and improvements will count as part of the $500 expenditure required of an applicant for patent, and discovery work will also count. "The expenditures required may be made from the surface, or in running a tunnel, drifts, or cross-cuts for the development of the claim. Improvements of any other character, such as buildings, machinery, or road ways, must be excluded from the estimate unless it is shown clearly that they are associated with actual excavations, such as cuts, tunnels, shafts, etc., are essential to the practical development of, and actually facilitate the extraction of mineral from, the claim." A stamp mill, used exclusively in connection with the claim, does not, however, meet this test in the eyes of the land department."

The $500 expenditure should be complete before the application for patent; but a completion before the expiration of the period of publication of the application for patent will do.1o

5 Tam v. Story, 21 Land Dec. Dep. Int. 440.

10

* A group of contiguous claims may be included in one application, even though some are lodes and some are placers. Mayflower Gold Mining Co., 29 Land Dec. Dep. Int. 7. Claims which merely corner on one another are not contiguous. HIDDEN TREASURE CONSOL. QUARTZ MINE, 35 Land Dec. Dep. Int. 485.

• Land Office Regulations, rule 48. See opinion, 27 Land Dec. Dep. Int. 91. The expenditure of $500 claimed for each location must come after such location is made. Aldeberan Mining Co., 36 Land Dec. Dep. Int. 551.

7 Copper Glance Lode, 29 Land Dec. Dep. Int. 542.

8 Land Office Regulations, rule 157.

9 Monster Lode Mining Claim, 35 Land Dec. Dep. Int. 493. In case of a lode claim and of a mill site claim in the same survey, the expenditure of $500 upon the lode claim must be shown. Land Office Regulations, rule 159. 10 NIELSON v. CHAMPAGNE MINING & MILLING CO., 29 Land Dec. Dep. Int. 491. Whether $500 has been expended in work or improvements is for the land department to decide, and cannot be considered in an adverse suit. Wilson v. Freeman, 29 Mont. 470, 75 Pac. 84, 68 L. R. A. 833; Stolp v. Treasury Gold Min. Co., 38 Wash. 619, 80 Pac. 817.