§ 526. No contractual liability-It is the condition upon which the claim is held.- Since the performance of annual labor alone constitutes the condition upon which mining claims may be held, and since this rule applies equally in the concrete where it is referable to the entire claim, as it does in the abstract where it is referable to the duty which each co-owner owes to all others performing the labor, and since the rule is well settled that where the right and the remedy are both creatures of the statute the remedy pointed out by statute is exclusive,' it would seem to follow as a necessary corollary that the remedy pointed out by statute in this particular case is exclusive, and that there can be no express or implied liability to respond in any other way for annual labor than by forfeiture of the claim; and in all cases the conduct of the parties must receive a strict construction, and the facts to support the claimed forfeiture must be plain and not left to inference. While a mine owner may hire a stranger to perform assessment work upon the claim for himself or for his co-owners, and he will be liable as upon an express or implied contract, as the case may be, for the amount and value of labor performed, yet the rule is different with reference to his co-owners in the absence of an express contract. As to them it is well settled that the liability can only be enforced against their specific interests by advertisement in the manner pointed out by statute. In other words, there is no contractual or personal liability, but merely a statutory one, for which the property may be taken in satisfaction.3 Sawyer, 150 U. S. 578; Billings v. Aspen M. & S. Co., 2 C. C. A. 252, 51 Fed. Rep. 338; affirmed, s. c. on rehearing, 3 C. C. A. 69, 52 Fed. Rep. 250; Elder v. Horseshoe M. Co., 9 S. Dak. 636, 70 N. W. Rep. 1060; Royston v. Miller, 76 Fed. Rep. 50; Sanders v. Mackey, 5 Mont. 523, 6 Pac. Rep. 631. § 527. Relation of co-owners as to assessment work Similar to estoppel and waiver - Conditions. By paying his quota of the amount stipulated by the laws of congress, and by performing the condition upon which he holds his property, the miner is fully protected in its enjoyment. His failure to do this amounts logically to a waiver of his rights, and he is thereafter estopped to further assert his claim to an interest in the property. This is but the exercise of a natural right, and, if borne in mind, will tend to explain many difficulties.2 The supreme court of South Dakota state the doctrine of conditional estates, and the relationship of co-owners to each other, in language clear and explicit, and while some of the matters were proper for a preceding section, it is not out of place to reproduce them here: "It follows, therefore,” says the court, "that the locator, his heirs or assigns, must see that the condition is performed, in order that their right to the possession may continue. When the location is made by two or more, they become co-owners, and one or more of the co-owners may do the required work upon the claim and thus perform the condition, and thereby continue the right of themselves and co-owners to the exclusive possession of the claim. But no duty is imposed upon any one co-owner to do this. If the work is done, however, by one or more, the law requires the other co-owner or co-owners to contribute his or their share of the required expense, and upon failure so to do his or their interest becomes the property of those performing the work, upon compliance with the requirement of the statute, which is the giving 'such delinquent co-owner personal notice in writing or notice by publication in the newspaper published nearest the claim.' 1 Gleeson v. Martin White M. Co., 13 Nev. 442, 469; Elder v. Horseshoe M. Co., 9 S. Dak. 636, 70 N. W. Rep. 1036; Snell v. Levitt, 110 N. Y. 595, 18 N. E. Rep. 370. U. S. 443, 451; Benson M. & S. Co. v. Alta M. & S. Co., 145 U. S. 428; Collins v. Bartlett, 44 Cal. 371; Commonwealth v. Alger, 7 Cush. 84; Steel v. Smelting Co., 106 U. S. 2 Black v. Elkhorn M. Co., 163 447. The statute makes no specific provision for any address or heading to the notice." § 528. Who entitled to invoke the remedy - Must be co-owner when work done and when notice given.-The plain reading of the statute leaves little or nothing to be said, and little room for discussion or construction as to who may claim the benefits, and who may be rendered liable for the performance of annual assessment work upon a mining claim. The statute says, "the co-owner who has performed the labor may give such delinquent co-owner notice," etc. It will thus be seen that the remedy is peculiar and statutory, and the right to exercise it is conferred solely upon the co-owner who did the work; he alone may exercise it. This means not only a co-owner when the work was done, but likewise when the remedy is invoked.2 It is also apparent that the remedy, being personal to the co-owner who did the work, is not assignable and may be exercised only by such person.3 The statute seems to require, in positive terms, that the notice must be given by the person who performed the labor to the person liable therefor at the time it was done; and while, as we have observed, the person performing the labor may not assign the claim even by the transfer of interest so as to authorize the assignee to give the notice of forfeiture and exercise the rights thereunder, the same rule does not apply to the person against whom the notice runs. In other words, this is a liability attaching to the interest itself, and is not defeated by transferring the interest. But he who takes it, takes it with that burden impressed upon it. And it would seem to follow that it could make no difference how the transfers were made, or how many were made; the successor in in 1 Elder v. Horseshoe M. Co., infra. 2 Turner v. Sawyer, 150 U. S. 578; Brundy v. Mayfield, 15 Mont. 201, 38 Pac. Rep. 167; Elder v. Horseshoe M. Co., 9 S. Dak. 636, 70 N. W. Rep. 1036, 62 Am. St. Rep. 895; R. S. U. S., § 2324. See also Royston v. 3 Turner v. Sawyer, supra; Brundy v. Mayfield, supra. 4 Elder v. Horseshoe M. Co., supra. terest would take it impressed with this burden and liability, and be bound to discharge it. A nice question might naturally arise as to whether this right would descend to the heirs of the co-owner who did the work. From the plain letter and reading of the statute it would seem that it would not, and yet the point has never been decided; and it must be admitted that exactly the same reasons which exist for denying the right of assignment do not exist with reference to the rights acquired by an heir. If it is not assignable, it is because it is a personal privilege which may be exercised or waived by the person in whose favor it runs - the co-owner who did the work, and because the statute expressly restricts it to such co-owner. But there is this distinction between the attempt to assign and the assertion of the right by the assignee on the one hand, and the assertion of the right by an heir on the other: the assignment of the assessment work, together with the grant of the claim, or without it, would be a voluntary act; while paying the debt of nature is not such in that sense. Much could be said upon both sides of this question, but probably the safer rule is to follow the strict letter of the statute and hold the right to be a personal privilege, to be exercised alone by the co-owner who did the work. As was said by the supreme court of the United States: "It will be observed that the right to give this notice of a claim for contribution is limited to the co-owner who has performed the labor."1 $529. The doctrine of Turner v. Sawyer- The rights and duties of co-owners defined. One of the most instructive cases upon this subject arose in Colorado, whence it was carried to the supreme court of the United States by appeal. It arose out of this state of facts: The claim was owned as follows: Amos Sawyer one-half, Sanderson three-eighths, Finch one-eighth. Later Amos Sawyer con 1 Turner v. Sawyer, 150 U. S. 578. Sawyer veyed one-quarter to A. G. Sawyer, who also became possessed of the Finch interest; this was in November, 1886. In the meantime one Teal filed a lien for annual labor done at the request of Sanderson and Amos Sawyer for $148.10, and one Christianson also filed a similar notice of lien. In 1884 Teal instituted a suit to enforce his lien, and made Sanderson, Marks, Finch, P. F. Smith and parties as the owners thereof. There was no service upon Sawyer and he was not in court; on June 2, 1884, Teal proceeded to sell the interest of Sanderson, Marks, Finch and P. F. Smith, to pay the amount of his decree, at which sale White became the purchaser, and afterwards assigned his certificate of purchase to Turner, who obtained a sheriff's deed for the property on the 3d of March, 1885. This deed purported to convey the entire lode in controversy. Christianson instituted suit against the same defendants as in the Teal suit, which was pending at the time, to enforce his lien against the same property; on April 24, 1885, Turner, who had done the annual labor on the claim for 1884, before he obtained the sheriff's deed, published a forfeiture notice against appellee, plaintiff Alfred A. G. Sawyer, under the provisions of the act of congress, but no notice was published against Finch, who still owned an undivided one-eighth of the lode, nor against Amos Sawyer, who owned one-half of the lode. During the year 1884 and until January, 1885, appellant Turner declined an offer to pay five-eighths of the annual labor for the year 1884 on behalf of L. E. Finch and Amos Sawyer, on the ground that the record showed one Sanderson and Sawyer as having no remaining interest; on October 27, 1885, Turner filed in the office of the clerk and recorder of the county where the property was situated, an affidavit that A. G. Sawyer, the appellee, had wholly failed to comply with the demands contained in the forfeiture notice. Subsequently, about November 1st, Turner instituted proceedings in the United States land office at Central City, Colorado, for the purpose of perfecting a patent for the lode in his own name, and on April 13, 1886, a re |