78. Where, after publication of notice of application for patent and before entry, a mining claim is relocated by a stranger, for failure on part of the applicant to make the and relocation are shown at a hearing, the entry will be canceled and the parties left to litigate their conflicting claims in court. The Land Department will not pass upon the validity of the relocation in such a case. Little Pauline Lode v. Leadville Lode, 7 L. D. 506. so erroneous as not to cover any portion of the claim. If such patentee refuses to surrender the erroneous patent, and to reconvey the land covered thereby, suit to vacate the patent will be recommended by the Land Depart-required annual expenditure, and such failure ment. United States v. Rumsey, 22 L. D. 101. 69. The issuance of a mineral patent "is prima facie evidence that a discovery of mineral was made; that the land was properly located as mineral land; that the application for patent, the notices given by the defendants (applicants) and all other steps required by the law, had been regularly taken." Northern Pacific R. R. Co. v. Cannon, 7 U. S. App. 507. 70. An applicant for patent claiming under the Statute of Limitations must give notice of his application by publication and posting as in other cases. Com'r to Smith Bros., 7 C. L. O. 4. 71. Land covered by a mineral application for patent, of which notice has been given, may not be embraced in another application. Rebellion M. Co., 1 L. D. 542; A. J. Gibson, 21 L. D. 219. 72. The filing of a mineral application for patent, followed by publication of notice thereof, segregates the land applied for and bars the allowance of another application for the land. Rocky Lode, 15 L. D. 571. 73. Mere application for a patent to a mining claim, not followed by notice thereof, is not a segregation of the land, and confers no right upon which others are bound to wait indefinitely. Snow Flake Lode, 4 L. D. 30. 74. One who has filed an application for a mining patent but has given no notice thereof is bound to adverse the application of another who makes a subsequent application and gives notice thereof, and the failure so to do is a waiver of his rights. Snow Flake Lode, 4 L. D. 30. 75. In the published notice of a mineral application for patent, the claim of the applicant should be explicit. Such claim cannot exclude land in one part of the notice, and thereafter, in another part thereof, lay claim to the said tract. Samoa Lode, 17 C. L. O. 41. 76. It is too late, after a mining patent has issued, to make objection that publication was not in compliance with the act of July 26, 1866. Prince of Wales Lode, 2 C. L. O. 2. 77. No part of a mineral entry can stand if based on a false survey and publication. Gustavus Hagland, 1 L. D. 593. 79. Failure to perform annual expenditure upon a claim up to date of entry will subject the claim to relocation even after application for patent and publication of notice thereof. Sweeney v. Wilson, 10 L. D. 157. 80. Where a claim has been abandoned after publication of notice of application therefor, and then relocated by a stranger, and subsequently entered by and patented to the applicant, the patentee will be declared trustee for the relocator. (Strong dissenting opinion.) South End M. Co. v. Tinney, 35 Pac. Rep. 89. 81. Entry should not be allowed where the claim applied for is involved in a pending suit to determine the right of possession thereto, instituted prior to publication of notice of application for patent. If on said suit it is adjudged that the applicant is not entitled to the possession of a part of the claim, he will not be allowed to enter such part. Northwestern Lode & Mill Site Co., 8 L. D. 437. 82. Where, in the published notice of application for patent, the applicant excludes "without waiver of rights" the ground in conflict with another claim, he cannot thereafter embrace said conflict in his entry without giving due notice of application for said conflict in the usual manner. Departmental decision of June 18, 1896, In re Canuck Lode; Com'r to Pueblo Office, Sept. 30, 1895, In re Lookout and other Lodes. 83. Where, on a contest between a mill site claimant and a lode claimant, the judgment of the General Land Office was that the land in conflict is non-mineral in character and that the lode claimant must give new notice of application for patent, the lode claimant may not allow said decision to become final, and then, by moving the reference of his entry to the Board of Equitable Adjudication, attempt indirectly to evade that portion of the decision adverse to him while claiming its finality as against the contestant. | ica in Congress assembled, That the provisOscar Waller, 22 L. D. 318. 84. Claimant who has published notice of application for patent may not, by relinquishment, give to claimant of a conflicting claim the right to enter the conflict without publication. Com'r to Pueblo Office, Sept. 30, 1895, In re Lookout and other Lodes; Com'r to Pueblo Office, Jan. 17, 1896, In re Providence Lode. 85. The death of an applicant during publication does not affect its validity; the heirs may complete the proof. Com'r to Crump & Watkins, March 9, 1892. ions of the fifth section of the act entitled Act of February 11, 1875. and twenty-four of the Revised Statutes, relating to 88. Land returned as mineral in character is not subject to selection by a state as school indemnity land until the return has been overcome by testimony submitted after publica-ica in Congress assembled, That section two tion of notice, under paragraph 110 of Mining Circular, as amended July 2, 1894 (19 L. D. 21). State of California v. United States, 22 L. D. Be it enacted by the Senate and House of Representatives of the United States of Amerthousand three hundred and twenty-four of the Revised Statutes be, and the same is hereby amended so that where a person or company has or may run a tunnel for the purpose of developing a lode or lodes, owned by said person or company, the money so expended in said tunnel shall be taken and considered as expended on said lode or lodes, whether located prior to or since the passage not be required to perform work on the surof said act, and such person or company shall face of said lode or lodes in order to hold the same as required by said act. (18 Stat. 315.) Sec. 2 of the act of Jan. 22, 1880. 5. In order to hold the possessory title to a mining claim located prior to May 10, 1872, and for which a patent has not been issued, the law requires that ten dollars shall be expended annually in labor or improvements on each claim of one hundred feet on the course of the vein or lode until a patent shall have (See secs. 2324 and 2325, U. S. Rev. Stats., been issued therefor; but where a number of pp. 70 and 137.) Act of June 6, 1874. AN ACT to amend the act entitled "An act to promote the development of the mining resources of the United States," passed May tenth, eighteen hundred and seventy-two. Be it enacted by the Senate and House of Representatives of the United States of Amer such claims are held in common upon the same vein or lode, the aggregate expenditure that would be necessary to hold all the claims, at the rate of ten dollars per hundred feet, may be made upon any one claim; a failure to comply with this requirement in any one year subjecting the claim upon which such failure occurred to relocation by other parties, the same as if no previous location thereof had ever been made, unless the claimants under the original location shall have resumed work thereon after such failure and before such relocation. The first annual expenditure upon claims of this class should have been performed subsequent to May 10, 1872, and prior to January 1, 1875. From and after January 1, 1875, the required amount must be expended annually until patent issues. By decision of the honorable Secretary of the Interior, dated March 4, 1879, such annual expenditures are not required subsequent to entry, the date of issuing the patent certificate being the date contemplated by statute. 17. In order to hold the possessory right to a location made since May 10, 1872, not less than one hundred dollars' worth of labor must be performed, or improvements made thereon annually until entry shall have been made. Under the provisions of the act of Congress approved January 22, 1880, the first annual expenditure becomes due and must be performed during the calendar year succeeding that in which the location was made. Expenditure made or labor performed prior to the first day of January succeeding the date of location will not be considered as a part of, or applied upon the first annual expenditure required by law. Failure to make the expenditure or perform the labor required will subject the claim to relocation by any other party having the necessary qualifications, unless the original locator, his heirs, assigns, or legal representatives have resumed work thereon after such failure and before such relocation. 18. The expenditures required upon miningclaims may be made from the surface or in running a tunnel for the development of such claims, the act of February 11, 1875, providing that where a person or company has, or may, run a tunnel for the purpose of developing a lode or lodes owned by said person or company, the money so expended in said tunnel shall be taken and considered as expended on said lode or lodes, and such person or company shall not be required to perform work on the surface of said lode or lodes in order to hold the same. 19. The importance of attending to these details in the matter of location, labor, and expenditure will be the more readily perceived when it is understood that a failure to give the subject proper attention may invalidate the claim. 39. The claimant, either at the time of filing these papers with the register or at any time during the sixty days' publication, is required to file a certificate of the surveyorgeneral that not less than five hundred dollars' worth of labor has been expended or improvements made upon the claim by the applicant or his grantors; that the plat filed by the claimant is correct; that the fieldnotes of the survey, as filed, furnish such an accurate description of the claim as will, if incorporated into a patent, serve to fully identify the premises, and that such refer ence is made therein to natural objects or permanent monuments as will perpetuate and fix the locus thereof. 40. It will be the more convenient way to have this certificate indorsed by the surveyorgeneral, both upon the plat and the fieldnotes of survey filed by the claimant as aforesaid. 74. As a condition for the making of application for patent according to section 2325, there must be a preliminary showing of work or expenditure upon each location, either by showing the full amount sufficient to the maintenance of possession under section 2324 for the pending year; or, if there has been failure, it should be shown that work has been resumed so as to prevent relocation by adverse parties after abandonment. The "pending year" means the calendar year in which application is made, and has no reference to a showing of work at date of the final entry. 75. This preliminary showing may, where the matter is unquestioned, consist of the affidavit of two or more witnesses familiar with the facts. III. DECISIONS. 1. A locator's only right to possession of a mining claim is conditional upon the performance, annually, of the required amount of labor; and if such labor is not performed, the ground is subject to relocation under section 2324, United States Revised Statutes, and the occupation of the ground by the original owner will not prevent relocation. Du Prat v. James, 65 Cal. 555; 4 Pac. Rep. 562; 3 West Coast Rep. 108; 15 Mor. Min. Rep. 341. (Refusing to follow Eilers v. Boatman, 3 Utah, 159; 2 Pac. Rep. 66; 1 West Coast Rep. 632; 15 Mor. Min. Rep. 462. See 111 U. S. 356; 15 Mor. Min. Rep. 471. Weise v. Barker, 7 Colo. 178; 2 Pac. Rep. 919; 2 West Coast Rep. 108; 15 Mor. Min. Rep. 462.) 2. The valid location of a mining claim is a grant from the government to the person making the location. The location is the inception of the grant and the patent is its consummation. The grant is kept alive by representation (work). A failure to represent forfeits the grant and makes void the title acquired by location, and the ground thereupon becomes again subject to location and purchase. Renshaw v. Switzer, 6 Mont. 464; 13 Pac. Rep. 127; 15 Mor. Min. Rep. 345. 3. When a valid location has been shown, performance of annual assessment work need not be proven unless non-performance thereof and relocation of the claim are alleged, and evidence thereof given by the other party. 1 Renshaw v. Switzer, 6 Mont. 464; 13 Pac. Rep. | lies inside of such surface lines." Branagan 127; 15 Mor. Min. Rep. 345; Quigley v. Gillett, v. Dulaney, 2 L. D. 744. 101 Cal. 462; 35 Pac. Rep. 1040; Mattingly v. Lewisohn, 35 Pac. Rep. 111. 4. Discovery and appropriation are the source of title to mining claims, and development by work the condition of their continued possession. O'Reilly v, Campbell, 116 U. S. 418. (Citing Jennison v. Kirk, 98 U. S. 453; Jackson v. Roby, 109 U. S. 440.) 5. Discovery and appropriation are recognized as the source of title to mining claims, and development by working as the condition of continued ownership, until the issuance of patent therefor (entry of the claim and payment for the land). Erhardt v. Boaro, 113 U.S. 527; 2 McCrary, 141; 1 Mor. Min. Rep. 452. 6. Proof of a legal location of a mining claim and of possession thereof is proof of such a title as may be overthrown only by proof of forfeiture of the claim by failure to make the required annual expenditure thereon. Hammer v. Garfield M. & M. Co., 130 U. S. 291. 7. Miners' rules required possession of a mining claim to be predicated on a discovery and maintained by development work. Cons. Rep. Mtn. M. Co. v. Lebanon M. Co., 9 Colo. 343; 12 Pac. Rep. 212; 15 Mor. Min. Rep. 490. (Following Jennison v. Kirk, 98 U. S. 453.) 8. Annual expenditure on a mining claim is necessary to support the possessory title thereto. American Hill Qtz. Mine, 5 C. L. O. 114. 9. The first discoverer of a mine can derive no benest from his discovery unless he follows it up by work for the development of his claim. Jackson v. Roby, 109 U. S. 440. 12. On failure of claimants to do the required annual labor on a mining claim within the time allowed therefor, the claim is subject to relocation. De Puy v. Williams, 26 Cal. 310; 5 Mor. Min. Rep. 251. 13. A location on which annual expenditure in labor or improvements is not made as required by law may be relocated if work has not been resumed. Russell v. Brosseau, 65 Cal. 605; 4 Pac. Rep. 643; Du Prat v. James, 65 Cal. 555; 4 Pac. Rep. 562; 3 West Coast Rep. 108; 15 Mor. Min. Rep. 341. 14. The failure of a locator of a placer mining claim to perform the annual amount of work required by section 2324, United States Revised Statutes, renders the claim subject to relocation. Morgan v. Tillottson, 73 Cal. 520; 15 Pac. Rep. 88. allowed his location to lapse for failure to do 15. A locator of a mining claim who has the annual assessment work, and to become subject to relocation under section 2324, United States Revised Statutes, providing for the relocation of claims on which the required annual amount of work has not been done, has the right to make a new location covering the same ground. Warnock v. DeWitt, 11 Utah, 324; 40 Pac. Rep. 205. 16. Failure to perform assessment work as required by State law subjects the claim to relocation. Kramer v. Settle, 1 Idaho, 485; 9 Mor. Min. Rep. 561. 17. The laws and customs which point out the manner of locating mining claims are conditions precedent to the right to possess and mine a claim, and no such right can be 10. Under the miners' common law, pre-acquired until such conditions precedent are vious to United States legislation, work was complied with. The requirements as to perrequired to hold a location. Cons. Repub-formance of annual labor, however, are conlican Mtn. M. Co. v. Lebanon M. Co., 9 Colo. 343; 12 Pac. Rep. 212; 15 Mor. Min. Rep. 490. 11. "A location since the 10th day of May, 1872, based on a discovery made within the limits of a claim properly located, and not abandoned or lost by failure to perform the labor thereon required by law, is an invalid location; for by the provisions of section 2322, the locator of such claim has the exclusive right of possession and enjoyment of all the surface included within the lines of the location, and of all veins, lodes or ledges throughout their entire depth, the top or apex of which | Rep. 536 (Colo.). ditions subsequent, the mere breach of which is not, per se, sufficient to cause a forfeiture, which must result from entry by the grantor (the United States) or one claiming under it, i. e., a relocation of the claim under the mineral laws. King v. Edwards, 1 Mont. 235; 4 Mor. Min. Rep. 480. 18. After legal abandonment of a claim by failure to perform annual labor, it is the entry by a relocator, not mere lapse of time, that destroys the right of the original owner. Little Gunnell M. Co. v. Kimber, 1 Mor. Min. 19. The failure to perform the work on a mining claim required by law amounts to an abandonment of the claim, and thereupon it may be occupied by another. Kramer v. Settle, 1 Idaho, 485; 9 Mor. Min. Rep. 561. prior location, then abandoned. Subsequent resumption of work by the first locator will not defeat this right. Johnson v. Young, 18 Colo. 625; 34 Pac. Rep. 173. 29. If work is resumed on a claim after it has once been opened to relocation, but before a relocation has actually been made, the rights of the original owners stand as they would if there had been no failure to com 20. The law presumes that locators forfeit their rights by failing to comply with local rules and customs relative to annual work, although no penalty is specified by such rules or customs for non-compliance. King v. Ed-ply with the law. Belk v. Meagher, 104 U. S. wards, 1 Mont. 235; 4 Mor. Min. Rep. 480. 279; 1 Mor. Min. Rep. 510; S. C., 3 Mont. 65. 30. Resumption of work upon a claim subject to relocation must be in good faith. Hirschler v. McKendricks, 16 Mont. 211; 40 Pac. Rep. 290; Bishop v. Baisley, 41 Pac. Rep. 21. A mining locator forfeits his claim if he does not each year perform work or make improvements of the value of $10 for each hundred feet of the vein (under act of 1866). Original M. Co. v. Winthrop M. Co., 60 Cal. 631.936. 22. A failure to perform the amount of work required by local rules of miners is an abandonment of the claim. St. John v. Kidd, 26 Cal. 263; 4 Mor. Min. Rep. 454. 23. The failure of an applicant to perform annual labor on his claim between the dates of application for patent and of entry will subject the claim to relocation. McNeil v. Pace, 3 L D. 267. 24. After failure to do work for any full year, he who first locates the ground after the expiration of the year has the better title thereto. Belk v. Meagher, 3 Mont. 65; 104 U. S. 279; 1 Mor. Min. Rep. 510. 25. The title of a successful plaintiff in an adverse suit is a possessory one, and may be lost by failure to make the required expenditure, followed by relocation of the claim by a third person. Com'r to Leadville Office, Feb. 24, 1896, In re Kennedy v. Johnston. 26. Failure to perform annual assessment work according to law may be waived by the Land Department, even in the face of an adverse relocator, if such failure occurred through mistake of a bona fide claimant. Stewart v. Reeves, 21 L. D. 446, Jaw Bone Lode. 27. Failure to perform annual labor on the senior of two conflicting locations during the calendar year does not operate to vest title to the land in conflict in the owner of the junior location, who can secure the same only by a relocation made before the resumption of work by the senior locator. Oscamp v. Crystal River M. Co., 19 U. S. App. 18; 58 Fed. Rep. 293. 28. By an amended location, a junior locator acquires a right to the conflict with a 31. Mere occupancy of a mining claim on which required annual expenditure has not been made will not prevent relocation thereof. Du Prat v. James, 65 Cal. 555; 4 Pac. Rep. 562; 3 West Coast Rep. 108; 15 Mor. Min. Rep. 341. 32. Where a mining claim has become subject to relocation, the resumption of work thereon by the original locator after a notice of relocation has been posted thereon, but before the relocator has marked the boundaries of his relocation, is sufficient, under section 2324, United States Revised Statutes, to prevent the original location from becoming forfeited. Pharis v. Muldoon, 75 Cal. 284; 17 Pac. Rep. 70. 33. Resumption of work on a claim open to relocation, prior to relocation, will prevent forfeiture thereof. Anderson v. Byam, 8 L. D. 388. 34. The resumption of work on an abandoned claim by the original owner, before a relocation thereof, will prevent forfeiture of his rights. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411; Belcher Cons. G. M. Co. v. Defferrari, 62 Cal. 160; Du Prat v. James, 65 Cal. 555; 4 Pac. Rep. 562; 3 West Coast Rep. 108; 15 Mor. Min. Rep. 341; Pharis v. Muldoon, 75 Cal. 284; 17 Pac. Rep. 70; Lacey v. Woodward, 25 Pac. Rep. 785; McGinnis v. Egbert, 8 Colo. 41; 5 Pac. Rep. 653: 15 Mor. Min. Rep. 329; Gonu v. Russell, 3 Mont. 358; 12 Mor. Min. Rep. 630; Belk v. Meagher, 3 Mont. 65; 104 U. S. 279; 1 Mor. Min. Rep. 510. 35. "When, therefore, he avails himself of the statutory privilege of resuming work to |