Honaker v. Martin, 11, 91 (1891). The resumption of labor after failure to do assessment work and before relocation, in order to save the claim from relocation under Rev. Stats. 2324, must be followed by a prosecution of the work with reasonable diligence, until the requirement as to labor has been complied with. "The resumption of work by the original locator, whose rights are subject to forfeiture, without the expenditure, with reasonable diligence, during the year, of the sum of $100 for labor or improvements upon the mine, is an evasion of the statute." It was held that upon the facts of this case there was not a resumption of work in good faith.

Coleman v. Curtis, 12, 301 (1892). It is not necessary that labor done upon a claim should be paid for in order to be effectual as assessment work. It is sufficient if labor of the requisite value be done whether paid for or not, the payment being a matter between the laborer and the locator.

Section 1483 of div. 5, Comp. Stats., merely provides a method of preserving prima facie evidence of the annual representation of mining claims. It does not relate to the effect of doing the work or of making the improvements required by law.

Mattingly v. Lewisohn, 13, 508 (1893). In estimating the amount of work or improvements, the test is the reasonable value thereof, not what was paid for it or what the contract price was.

McDonald v. Montana Wood Co., 14, 88 (1894). Where a placer claim of one hundred and sixty acres is located by an association, $100 worth of work is sufficient to hold the entire claim. It is not necessary to do $100 worth of work for each twenty-acre tract.1

A mere trespasser cannot set up a forfeiture for failure to do annual work. Such a forfeiture must be pleaded, and there must be a relocation by some one on account thereof.

Brundy v. Mayfield, 15, 201(1895). The forfeiture provisions of Rev. Stats. 2324 must be strictly construed. Before the interest of a part owner of a mining claim can be forfeited to his co-owners, it must be a fact that he has failed to contribute his proportion of the annual expenditure required by law. If he has not failed to do this, the publication of forfeiture notices will not affect his title.

Hirschler v. McKendricks, 16, 211 (1895). Plaintiff located his claim on Jan. 1, 1889, and failed to do the requisite annual work in 1889 and 1890. He resumed work on the night of Dec. 31, 1890, and continued work until Jan. 15, 1891, doing less than $100 worth. He then ceased. It did not appear that he was obliged to do so by the weather or any other reason, and defendant located the land on Jan. 31, 1891. It was held that plaintiff, although having resumed work, did not prosecute it with reasonable diligence, and the defendant's location was therefore good.

Reasonable diligence was not shown by the posting of a notice soliciting proposals for $500 worth of work with a view to obtaining a

1 While there is no other decision on this question, this case must be treated as doubtful. It has been disregarded by the Land Department upon a collateral ques

tion. If this construction is put upon the law, it will open an easy road to evade the purpose of the act.

patent, and negotiations with persons with a view to making such a contract. It was not shown when this notice was posted or when the negotiations took place. A diligent attempt to procure the performance of work might, under proper circumstances, be due diligence in resuming work, but this is not such a case.

Davidson v. Bordeaux, 15, 246 (1895). A recorded affidavit of the performance of the annual work is not required, and when made it is only prima facie evidence. The fact of the performance of the work may be proved by other evidence.

Deno v. Griffin, 20, 249 (1889). After payment of money Nevada. for obtaining a patent and issuance of the receiver's receipt, the locator is not required to perform assessment work.

Lacey v. Woodward, 25 Pac. 785 (1891). Plaintiff New Mexico. located his claim on Jan. 1, 1883. He did the assessment work for 1884 and 1885. In 1886 he did not perform the required work. In 1887 he in good faith resumed work, and did the work for that year, and continued in possession until February, 1888, doing the work for that year. Defendants entered in the fall of 1888, and the land was held not to be open to relocation. The rule was laid down that if plaintiff failed to do the work for one year, and resumed work in good faith before a location by defendants, the latter's location was invalid.

Thompson v. Jacobs, 3, 246 (1883). The first annual expenUtah. diture upon mining claims required by the act of Congress, May 10, 1872, to be made upon claims located prior to its passage, must be made after its passage and before Jan. 1, 1875. Expenditure made before May 10, 1872, in compliance with a local mining regulation. is not a compliance with the act.

Utah M. & M. Co. v. Dickert & Myers Sulphur Co., 6, 183 (1889). Where adverse possession of a mining claim is taken and held wrongfully, the rightful owner is excused from doing the assessment work during the continuance of such adverse holding.

LAND OFFICE DECISIONS.

The co-owners of a tunnel, who have made the required expenditure, may proceed against delinquent co-owners in the manner provided by Rev. Stats. 2324. Copp, 222 (1878).

Annual work upon lode claims must continue to date of entry and payment. The pendency of proceedings in court upon an adverse claim does not release the applicant from this requirement. Colo. Central v. American Flag, Copp, 255 (1879).

The local laws may prescribe a greater annual expenditure than the United States law requires, but not a less. Wildman Quartz Mine, Copp, 291 (1880).

Where a claim was located Oct. 1, 1879, and one hundred dollars' worth of labor and expenditure was made after location and before Jan. 1, 1880, it cannot be considered as annual expenditure under sec. 2, act of Jan. 22, 1880. That expenditure must be made during the calendar year 1880. Copp, 295 (1880).

"Persons in possession of lodes (within Sutro Tunnel Grant) at the

time of the grant need not conform to the requirements of the mining laws of the United States as to the performance of annual labor. A compliance with the local mining rules and regulations prescribed by the legislature of Nevada, if any there be, is sufficient for the purpose of maintaining the possessory right to such lodes." Sutro Tunnel Co., Copp, 302 (1881).

Where local law requires annual expenditure on placer claims, failure to make such expenditure subjects the claim to relocation. But where no relocation has been made, it is of no consequence whether work has been done since application for patent or not. J. P. Sears, Copp, 312 (1881).

Co-tenants who are alleged to be delinquent, and who have forfeited their rights under Rev. Stats. 2324, even when in fact they are not so, must protect their rights by filing adverse claims. Grampian Lode, 1 L. D. 544 (1882).

A claim is not subject to relocation in the interim between entry and issuance of patent for failure to perform annual work. Harrison, 2 L. D. 767 (1884).

When the parties owned two adjoining claims, and a drift in one of them was run in the direction of the other, under the advice of mining experts, with a view to the improvement of both, it is available to hold both. McNeil v. Pace, 3 L. D. 267 (1884).

When application is made for a patent upon a placer mining claim embracing several locations, an adverse claimant may prove abandonment of any one of such locations by failure to make annual expenditure upon it or upon a common claim for its benefit, and the possessory right will fail even though the adverse claimant may not show in himself a good adverse title by reason of a like failure. Good Return M. Co., 4 L. D. 221 (1885).

In a claim located after May 10, 1872, failure to make the annual expenditure required by the statute renders the claim subject to relocation in the same manner as if no location of the same had ever been made, provided that work has not been resumed thereon after such failure, and before relocation. Little Pauline v. Leadville Lode, 7 L. D. 506 (1888).

Where several claims are embraced in one application, the annual work required by statute may be done on one of such claims for the common benefit of all. Nichols v. Becker, 11 L. D. 8 (1890).

The burden of proof is upon the owner to show that such work is a part of a general scheme of improvement, and develops the claim as a whole. Dolles v. Hamberg C. M. Co., 23 L. D. 267 (1896).

The B. Co. made application for patent, and furnished all the evidence necessary to entitle it to make entry, but through an oversight failed to pay the sixty-five dollars which under Rev. Stats. 2325 should have accompanied the application. Under belief that its entry was complete, it suspended, and failed for two years to do the annual labor required by the law. The claim was then relocated by one who applied for patent. The company discovering its default, tendered the sixty-five dollars, which was refused, on account of the intervening claim. Held, that the claim had been abandoned, and was open to relocation. Ferguson v. Belvoir M. & M. Co., 14 L. D. 43 (1892).

CHAPTER X.

LOCAL MINING RULES AND REGULATIONS.

PRIOR to 1866 no law was enacted by Congress providing for the sale of the public mineral lands or regulating mining thereon. This gave rise to a phenomenon unique in the history of American law. During the interval between 1849 and 1866 there grew up and was established a common law of mining, a law created and enacted by the miners themselves, which was almost at once recognized as a part of the law of the land and has since received the endorsement of legislative action. This law is the code of mining rules, regulations, or customs in force in each of the different districts. The system had its origin in the early mining camps of California, and the example there set was followed by all the miners on the public domain. The lands in which large deposits of the precious metals were found upon the Pacific slope were the property of the United States, were unsurveyed, and not open by the law to settlement. These the miners penetrated, explored, and developed. Their right to do so, and the title they acquired by engaging in mining upon the public domain, have been considered. But they found there no law to govern them in any of their relations. They accordingly assembled in miners' meetings, and there enacted codes of law for their government. For this purpose the country was divided into districts, each having its own set of district regulations or customs. These rules were generally in writing, and they bore a marked similarity in their provisions. They usually first defined the name and boundaries of the district; secondly, the number and kind of officers to be elected from time to time; and then fixed the extent and number of the claims that might be located, the qualifications of the locator, the manner of designating the claim-generally by posting and recording a notice - the amount of work required to hold the claim; and sometimes established a judicial system for the trial of causes and the enforce

ment of the regulations. Their differences were those that arose from the extent and character of the mines and the kind of mining carried on in the different districts. But they all recognized discovery followed by appropriation as the foundation of the possessory title, and development as the condition of its retention. The California Practice Act of 1851, sec. 621, provided that proof of the customs, usages, or regulations established or in force at the bar or diggings embracing such claims" might be given in causes regarding them in justices' courts, and "when not in conflict with the constitution and laws of the State should govern the decision of the action." "

But this effect, indeed, was given to them in all the courts, not only in California, but of the other mining States. They were the law by which, prior to 1866, the rights of conflicting claimants were determined; and the kind of property created by them found judicial recognition in the Supreme Court of the United States in Sparrow v. Strong, 3 Wall. 97.

The act of Congress of July 26, 1866, gave the sanction of law to these miners' rules so far as they were not in conflict with the laws of the United States. Section 1 of that act was as follows: "The mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the law of the United States."

Subsequent legislation specified with greater particularity the manner of location and appropriation and the extent of each mining claim, recognizing, however, the essential features of the rules framed by miners, and among others those which made discovery and appropriation the basis of title, and required work on the claim for its development as a condition of its ownership. The sections of the Revised Statutes now in force recognizing these regulations are sections 2319, 2320, and 2324.

Until 1872 there was no limit to the power of miners' meetings to legislate, except the general principles of the law and the acts. of the State and Territorial legislatures. But the act of 1872 has

1 See Code Civ. Proc. 1885, sec. 748.