CHAPTER XVI.

THE ANNUAL LABOR OR IMPROVEMENTS REQUIREMENTS.

78.

79.

80-81.

Claims Subject to Annual Labor Requirement.

What is Annual Labor.

Place of Performance and Kind of Annual Labor.

Amount of Annual Labor.

Excuses for Annual Labor.

82.

83.

84.

Proof of Annual Labor.

85.

Annual Labor Pending Patent Proceedings.

86-88.

Resumption of Work.

89-90. Forfeiture to Co-Owner.

CLAIMS SUBJECT TO ANNUAL LABOR REQUIREMENT.

78. Annual labor is held to be required on placer claims as well as on lode claims. It is required only on unpatented claims.

1

The federal statute attaches to a lode location an express requirement that each year following the location and prior to the proper stage in patent proceedings a certain amount of labor shall be performed upon the claim or improvements be made upon it. By a process of judicial oversight, or perhaps by traditional error, it has become settled in several states that annual labor must be performed on placers as well as on lodes; and the doctrine has the support of a dictum of the Supreme Court of the United States. The land department has reversed its previous holding to the contrary in favor of the rule "that the annual expenditure to the amount of $100 required by section 2324, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1426), must be made upon placer claims as well as lode claims." The result is that, while probably the act of 1872 did not contemplate annual labor on anything but lode claims, the cases requiring it upon placers will probably always be followed. Mr. Lindley, indeed, argues that they are

1 CARNEY V. ARIZONA G. M. CO., 65 Cal. 40, 2 Pac. 734; Morgan v. Tillottson, 73 Cal. 520, 15 Pac. 88; Sweet v. Webber, 7 Colo. 443, 4 Pac. 752. See, also, Chapman v. Toy Long, 4 Sawy. (U. S.) 28, Fed. Cas. No. 2,610; Gird v. California Oil Co. (C. C.) 60 Fed. 531. Separate work need not be performed on each 20 acres of a 160-acre tract, however. McDonald v. Montana Wood Co., 14 Mont. 88, 35 Pac. 668, 43 Am. St. Rep. 616.

2 Jackson v. Roby, 109 U. S. 440, 3 Sup. Ct. 301, 27 L. Ed. 990. See St. Louis Smelting & Refining Co. v. Kemp, 104 U. S. 636, 26 L. Ed. 875.

3 Land Office Regulations, rule 25. See Circular, 8 Land Dec. Dep. Int. 505. 4 In the short act of February 12, 1903, passed to change a land department ruling which required annual labor on each oil location, even though sev

right, because by section 2329, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1432), "claims usually called 'placers' * * shall be subject to entry and patent, under like circumstances and conditions, and upon similar proceedings, as are provided for vein or lode claims;" but it does not seem that the language of that section means anything more than that $500 worth of labor must be expended or improvements made on placers before they can be patented. Its terms may be fully met without the doing of annual labor. By the settled interpretation of the statutes, however, annual labor on placers is required.

WHAT IS ANNUAL LABOR.

79. Annual labor is otherwise known as "assessment work" and "representation work," and these terms cover the annual expenditure in labor or improvements required to prevent the forfeiture of an unpatented mining claim. Annual labor is required for each year, beginning with the 1st of January succeeding the date of location of the claim. The federal statute requires the expenditure of at least $100 a year in labor or improvements where the claim has been located since the act of 1872.

Annual labor is sometimes known as "assessment work" and sometimes as "representation work." Such labor was required by district rules and regulations prior to the federal legislation, though such rules more often required monthly or quarterly labor. The reason for the miners' rules and regulations as to labor is thus stated: "It was soon discovered that the same person would mark out many claims of discovery and then leave them for an indefinite length of time, without further development and without actual possession, and seek in this manner to exclude others from availing themselves of the abandoned mine. To remedy this evil a mining regulation was adopted that some work should be done on each claim in every year or it would be treated as abandoned." By the lode mining act of 1866 and the placer act of 1870 no attempt was made to legislate about annual labor. It was in the act of 1872, therefore, that the first federal legislation on the subject was enacted, and by that act two different requirements were made, depending on whether the claims were located before or located after the passage of the act.

eral constituted a group, Congress recognizes annual labor as a requisite in oil placer locations. Act Feb. 12, 1903, c. 548, 32 Stat. 825 (U. S. Comp. St. Supp. 1907, p. 478).

5 Chambers v. Harrington, 111 U. S. 350, 353, 4 Sup. Ct. 428, 28 L. Ed. 452. Annual labor is required of the locator to test his good faith. McCULLOCH v. MURPHY (C. C.) 125 Fed. 147.

Annual Labor Requirement on Claims Located Prior to the Act of 1872.

With regard to previously located claims the act provided that "$10 worth of labor shall be performed or improvements made each year for each 100 feet in length along the vein until a patent shall have been issued therefor; but where such claims are held in common, such expenditure may be made upon any one claim." It is apparent that "each year" means here each year after the passage of the act, and that no expenditure prior to the passage of the act could count." That act as it stood would have required the first annual labor to be done by May 10, 1873; but by several amendments it was finally provided that the first annual labor on such claims was to be performed or improvements made by January 1, 1875.8

As Mr. Lindley and Messrs. Morrison and De Soto1o agree that very few claims located prior to May 10, 1872, remain in existence unpatented, such claims either having gone to patent, or been relocated, or else having been entirely abandoned, the subject of annual labor on such claims may be dismissed with the following practical advice by Messrs. Morrison and De Soto: "Where the lode consists of undivided claims of 100 or 200 feet each, as in the case of most locations made before May 10, 1872, any one or more claims may be saved by the expenditure of $10 worth of labor to each 100 feet which the owner desires to segregate and hold, leaving the remainder to forfeiture, or, when the series of claims are held in common, the full amount may be expended on any one claim, whether they were originally recorded as joint or as several locations; but, in all cases where less than the amount required to hold the entire lode is expended, the owner, in his proof of labor, should state the work as done for the purpose of holding only so many feet, designating where they lie upon the lode." 11

Annual Labor Requirement on Claims Located after the Act of 1872. With regard to claims located after the act of May 10, 1872, the act provided that "until a patent shall have been issued therefor, not less than $100 worth of labor shall be performed or improvements made

•Act May 10, 1872, c. 152, § 5, 17 Stat. 92; Rev. St. U. S. § 2324 (U. S. Comp. St. 1901, p. 1426).

7 Thompson v. Jacobs, 3. Utah, 246, 2 Pac. 714.

8 Id. The compilers of the Revised Statutes of the United States overlooked Act June 6, 1874, c. 220, 18 Stat. 61. So, instead of January 1, 1875, the date printed in section 2324, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1426), appears as June 10, 1874.

2 Lindley on Mines (2d. Ed.) § 623.

10 Morrison's Mining Rights (13th Ed.) 96.

11 Id.

during each year." 12 "12 Because this work was to be done "on each claim located after the passage of this act," the favorite construction of the act seems to have been that the first annual work must be done in the year dating from the location of the claim; but the doubt was set at rest by the act of January 22, 1880, which amended Rev. St. U. S. § 2324 (U. S. Comp. St. 1901, p. 1426), by providing, as to all claims located since May 10, 1872, that the annual labor should "commence on the 1st day of January succeeding the date of location of such claim." 18 While this statute did not act retrospectively, so as to save a claim from a forfeiture incurred before its passage,1 nor so as to make a locator perform labor before the act went into effect.15 nor so as to allow credit for such prior labor,1o it did make the calendar year the period for the performance of labor on all claims located. after May 10, 1872.17 "The object of the amendment of the law was to render the annual periods uniform as to all mining claims, and the exemption of claims from the performance of labor for a portion of a year in certain cases was a necessary result of the amendment." 18 Since the passage of the amendment no annual labor has been required during the year in which the location is made,19 so far as the federal statutes are concerned,20 though a district rule or state statute, it seems, may require annual labor during the location year. Indeed, it has been contended that a state statute may not only do that, but may also require more annual labor than the federal stat

21

12 Act May 10, 1872, c. 152, § 5, 17 Stat. 92; Rev. St. U. S. § 2324 (U. S. Comp. St. 1901, p. 1426).

13 Act Jan. 22, 1880, c. 9, § 2, 21 Stat. 61 (U. S. Comp. St. 1901, p. 1427). 14 Slavonian Min. Co. v. Perasich (C. C.) 7 Fed. 331.

15 Hall v. Hale, 8 Colo. 351, 8 Pac. 580.

16 Thompson v. Jacobs, 3 Utah, 246, 2 Pac. 714.

17 Id., where it extended the period from June 8, to December 31, 1880. See McGinnis v. Egbert, 8 Colo. 41, 51, 5 Pac. 652.

18 McGinnis v. Egbert, 8 Colo. 41, 51, 52, 5 Pac. 652.

19 There may be a question in what year a location really is made. "If a discovery be made in the latter part of the year, but the staking and record are not completed until some time in the early part of the following year, the latter year would be, in our opinion, the location year, and there could be no forfeiture for neglect to do the annual labor during that year; but we find no case where the point has been in terms decided. A location is not complete until all its several parts have been perfected. McKay v. McDougall, 25 Mont. 258, 64 Pac. 669, 87 Am. St. Rep. 395; Hickey v. Anaconda Copper Min. Co., 33 Mont. 46, 81 Pac. 811." Morrison's Mining Rights (13th Ed.) 99.

20 MALONE v. JACKSON, 137 Fed. 878, 70 C. C. A. 216.

21 NORTHMORE v. SIMMONS, 97 Fed. 386, 38 C. C. A. 211. But see ORIGINAL CO. OF THE WILLIAMS & KELLINGER v. WINTHROP MIN. CO., 60 Cal. 631, and 1 Lindley on Mines (2d Ed.) § 250.

COST.MIN.L.-18

ute does, and may fix the time for its completion earlier than the end. of the year. In Sisson v. Sommers the Nevada Supreme Court said: "The contention that, although the Legislature may properly require a greater amount of work than Congress has prescribed, it cannot limit the time in which to do it, does not strike us with any great force of reason. Congress has made the $100 worth of labor the minimum amount to be done, and the time named [the year] is the maximum time for the performance of the work without the risk of forfeiture. We think the Legislature may require a reasonable additional amount of work to be done annually, and a reasonable amount of work to complete the location (Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560, 28 L. Ed. 1113), or, after location, a reasonable additional amount of work within a reasonable time, less than the time named by Congress for the annual expenditure, as a condition to the continuance of the right acquired by location of the mine." 22

Annual labor is required in order to keep prospectors from monopolizing the public mineral domain, and its performance is essential to prevent the location from being open to relocation. 23 While, in the absence of local legislation to the contrary, the claimant has the whole of each year to do his $100 worth of work or put on that amount of improvements, the fact that he does more work in any one year than is required for that year will not enable him to count it toward the next year's work. Each year can receive credit for that year's work only. Despite the fact that a year's work came at the first of the year, the work for the succeeding year may come at the end of that year,24 and hence more than 20 months may intervene between times of working on the property. All that the government cares is that the $100 worth comes each year, or, if it is omitted for any year, that annual work shall be resumed before a relocation is made by third parties.

22 SISSON v. SOMMERS, 24 Nev. 379, 388, 55 Pac. 829, 77 Am. St. Rep. 815. See NORTHMORE v. SIMMONS. 97 Fed. 387, 38 C. C. A. 211. But, contra, as to time of doing work, see Sweet v. Webber, 7 Colo. 443, 4 Pac. 752, and as to district rules, ORIGINAL CO. OF THE WILLIAMS & KELLINGER v. WINTHROP MIN. CO., 60 Cal. 631, and Johnson v. McLaughlin, 1 Ariz. 493, 500, 4 Pac. 130.

23 See BEALS v. CONE, 27 Colo. 473, 62 Pac. 948, 83 Am. St. Rep. 92. 24 See MILLS v. FLETCHER, 100 Cal. 142, 34 Pac. 637; Belk v. Meagher, 3 Mont. 65.