2

§ 545. Presumptions of duty done - Law and acts of claim owners construed against forfeiture. Since it is popularly believed that most men obey the law - at least the law and the courts say so,- there is, following the same line of thought as applied to the performance of annual labor on a mining claim, a presumption in favor of duty done and of compliance with the law. That presumption stands in favor of the holder of the location until it is overcome by proof. Agreeably to these presumptions, it has been held that one in actual possession of a mining claim and developing the same, even though the boundaries are not distinctly marked on the ground, has not forfeited it; nor if he is wrongfully driven away from the claim. Nor will the mere fact that a sheriff's sale of the property has been made under the older location, alone constitute proof of forfeiture, in the absence of proof of delivery of the sheriff's deed. As we have seen, conveyance to an alien is not a forfeiture of a claim, the alien being allowed to hold until office found. And the finding of the jury that the work barely reaches the required amount to save from forfeiture will not be disturbed. The cases, in short, demonstrate that while the requirement is positive that work be done, and that the full amount must be done, in a doubtful case the law is with the older location and in favor of holding it.

§ 546. Law must in general be complied with.- But while the presumption is always, as stated in the last section, strictly against forfeiture, yet the presumption only

1 Hammer v. Garfield M. Co., 130 U. S. 291; Renshaw v. Switzer, 6 Mont. 464, 13 Pac. Rep. 127.

2 Neubaumer v. Woodman, 89 Cal. 310, 26 Pac. Rep. 900. See also Erhardt v. Boaro, 113 U. S. 527.

3 Utah M. Co. v. Dickert & M. S. Co., 6 Utah, 183, 21 Pac. Rep. 1002; Erhardt v. Boaro, supra.

4 Manning v. Strehlow, 11 Colo. 451, 18 Pac. Rep. 625.

5 Hirshler v. McKendricks, 16 Mont. 211, 40 Pac. Rep. 290.

6 Id. See also Crown Point G. M. Co. v. Crismon (Oreg., 1901), 65 Pac. Rep. 87, where the court refused to disturb the finding of the lower court to the effect that sufficient work for the year in question had been performed.

stands in the absence of proof. It does not lessen in the slightest degree the absolute duty to comply with the law. In an early case in Nevada, a doctrine was stated which, the necessary changes and substitutions being made, applies with equal force to the law as it exists to-day. It was there held that the district mining laws govern the location and manner of developing mines, and where one directly points out how such mining claims, when once possessed and acquired, can be maintained, that course must be pursued, a failure to do so rendering such owner liable to forfeiture.1 This, we take it, is the true rule, and is supported by the weight of authority. We do not mean by this that hair-splitting as to the amount of work necessary to be done will be tolerated, but substantial compliance with the statute will be required, and, as previously stated, any neglect or failure on the part of one or more co-tenants to do the annual assessment work required by law will not excuse the other coowners from performance, nor exempt them from forfeiture for a failure to perform or have it performed. And it is immaterial whether there was a conspiracy or not, provided the conspiracy is not traced to the relocator; and this forfeiture may be claimed even after an application for patent, where the work is not kept up after the application, pending the issuance of the receiver's receipt.

§ 547. Cancellation of entry does not restore mineral land to the public domain. It was formerly thought, and so held by the land department, that the cancellation of a mineral entry had the effect to restore the land to the public domain of the United States and render it open to relocation. But since the decision in such cases goes only to the extent that upon the showing made, resulting from defects in the title too numerous to mention, the applicant is

1 Mallett v. Uncle Sam M. Co., 1 Nev. 188.

2 Ante, § 494.

4 South End M. Co. v. Tinney, 22 Nev. 19, 35 Pac. Rep. 89; ante, § 493. 5 Re Ophelia Pope Lode, 9 C. L. O.

3 Doherty v. Morris, 18 Colo. 105, 192. 28 Pac. Rep. 85.

not entitled to a patent, such a position is untenable, and the land department, by its later rulings, holds to the contrary.1 In its last expression upon the subject that we have been able to find occurs the following correct statement of the law: "The fact that the entry was canceled would not, of itself, render the ground subject to relocation. The original location of the lode was not affected by the cancellation, even though it had been regular (irregular?), and the owner could still hold it under its possessory right so long as there was a compliance with the requirements of the law."2

ARTICLE D.

Forfeiture and Abandonment of Tunnel Claims.

§ 551. Abandonment and forfeiture of tunnel claims- Why treated here.

552. Hazardous undertaking should reap some reward.

553. Diligence and good faith required.

554. Wide margin between abandonment and reasonable diligence. 555. Abandonment and forfeiture of a tunnel controlled by general

rules.

556. Forfeiture under the special six months' rules.

§ 551. Abandonment and forfeiture of tunnel claimsWhy treated here. While in some respects the manner of holding tunnel claims is the same as lode claims, except that the grant is more extensive, and a correspondingly higher duty in the manner of working the same is imposed upon the locator and owner, the mode of forfeiture by abandonment more nearly resembles the general question, and is therefore properly treated here. This grant, as we have observed, is a sweeping one, and it is unfortunate that the legislative power has not been more specific in respect to the nature and extent of the grant, and more positive and exacting in respect to the nature, quantity and character of work necessary to protect the same from forfeiture. The

1 Branagan v. Dulaney, 2 L. D. 744; McGowan v. Alps Cons. M. Co., 21 L. D. 113.

2 McGowan v. Alps Cons. M. Co., supra, p. 115.

language of the supreme court of the United States, while fully comprehending and describing the extensiveness of the grant, is less positive as to the diligence required to hold the grant than we could wish, but perhaps as positive as the law itself will warrant; nevertheless, the words used are accurate in describing the nature of the grant, and we therefore reproduce them. "It may be true, as counsel claim, that this construction of the statute (construing the tunnel location as a reservation) gives the tunnel excavator some advantages. Surely it is not strange that congress deemed it wise to offer some inducements for running a tunnel into the side of a mountain. At the same time it placed specific limitations on the rights which the tunnel owner could acquire. He could acquire no vein which had theretofore been discovered from the surface. His right reached only to blind veins, as they may be called, veins not known to exist, and not discovered from the surface before the commencement of his tunnel. It required reasonable diligence in the prosecution of his work. It placed a limit in length-three thousand feet,- beyond which he might not go in his search for veins, and acquire any rights under his tunnel location, and the veins to which he might acquire any rights were those which the tunnel itself crossed."1

§ 552. Hazardous undertaking should reap some reward. It has always been recognized by the courts, as it has been found true in actual experience, that the driving of a tunnel into a mountain side for the discovery and development of blind lodes is a hazardous undertaking, and doubtless this furnishes the excuse, to a very great extent, for the extensiveness of the grant. Said the circuit court of appeals in a recent case: "The labor, expense and risk of loss in the discovery and development of such veins from the surface are light indeed in comparison to those required

1 Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 167 U. S. 110. To the same effect, see Campbell v. Ellet,

167 U. S. 116; s. c. below, sub nom. Ellet v Campbell, 18 Colo. 510, 33 Pac. Rep. 521.

The

upon a tunnel that is run to discover unknown veins. work of driving such a tunnel thousands of feet into the side of the mountain, for the purpose of discovering a vein or lode that is not known to exist at all is an extremely hazardous and expensive undertaking. This is common knowledge, and congress must be taken to have had this knowledge when they enacted this law. They must have known that such a hazardous enterprise was not likely to be undertaken unless rewards commensurate with the risk and expense were offered."1

§ 553. Diligence and good faith required.— The law specifies no particular amount of labor upon a tunnel claim each year, but the spirit as well as the letter of the law requires the utmost diligence and good faith. The reservation only applies and inures to the benefit of the tunnel claimant in consequence of this diligence and good faith. As was said by the supreme court of Montana: "The fact that said non-action on the part of the tunnel claimant should constitute an abandonment shows that it was the intention of congress to reserve such lodes from the commencement of the tunnel, while it (work) was prosecuted according to law." 3

Thus, the very conditions upon which the tunnel right is held are the commencement of work upon the tunnel and prosecuting the same with reasonable diligence. Whence it follows, from the very nature of the thing, that anything short of a strict compliance with the statute must be construed as an abandonment.

1 Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 66 Fed. Rep. 200, 13 C. C. A. 390. See also Hope M. Co. v. Brown, 11 Mont. 370, 28 Pac. Rep. 732; Glacier Mt. M. Co. v. Willis, 127 U. S. 471; Back v. Sierra Nevada M. Co., 2 Idaho, 386, 17 Pac. Rep. 83.

2 R. S. U. S., § 2323.

3 Hope M. Co. v. Brown, 11 Mont. 370, 28 Pac. Rep. 732.

4 Corning Tunnel, etc. Co. v. Pell, 4 Colo. 507; Glacier Mt. M. Co. v. Willis, 127 U. S. 471; Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 167 U. S. 110; Campbell v. Ellet, id. 116; Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 66 Fed. Rep. 200, 13 C. C. A. 390.