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location begun, the claim is abandoned and strangers need not await the expiration of the prospector's time before locating.—Kinney v. Fleming, 56 Pac. 723.

Ditches and Water.-Failure to use water and allowing ditch to go to decay are evidence tending to prove abandoment.-Dorr v._Hammond, 7 Colo. 79; Sieber v. Frink, 7 Colo. 149. But non-user alone does not of itself necessarily imply abandonment.— Welch v. Garrett, 51 Pac. 405; Integral Co. v. Altoona Co. 75 Fed. 379. A ditch may be abandoned without abandonment of the owner's water rights.-Nichols v. McIntosh, 19 Colo. 22.

Other Subjects of Abandonment.-A leasehold interest, water, slag and tailings, are things which may be lost by abandonment.-Glasgow v. Chartiers Co. 25 Atl. Rep. 232; Barker v. Dale, 8 M. R. 597; Dougherty v. Creary, 1 M. R. 35; McGoon v. Ankeny, Id. 9; Porter v. Noyes, 10 N. W. 77. A prospecting contract may be abandoned.-Chadbourne v. Davis, 15 M. R. 620; McLaughlin v. Thompson, 2 Colo. App. 135. And failure to supply his outfit to the prospector will justify abandonment.—Murley v. Ennis, 12 ̄ M. R. 360.

Pleading.-It has been ruled that abandonment need not be specially pleaded.-Bell v. Bed Rock Co. 1 M. R. 45; Willson v. Cleaveland, 30 Cal. 192. But it is no issue when not raised by either pleadings or proof. -Coleman v. Davis, 13 Colo. 98. Where the abandonment is by reason of failure to do annual labor, the decisions have generally required a special plea and it is hard to draw a tenable distinction between them. See page 92.

Outstanding Abandoned Title.-The fact that there may have been locations now abandoned and not claimed by either party renders such outstanding titles of no relevancy to the rights of either.-Craig v. Thompson, 10 Colo. 517.

ANNUAL LABOR.

Annual Expenditure.-R. S. ? 2324. * * *-On each claim located after the tenth day of May, eighteen hundred and seventytwo, and until a patent has been issued therefor, not less than one hundred dollars' worth of labor shall be performed or improvements made during each year. On all claims located prior to the tenth day of May, eighteen hundred and seventytwo, ten dollars' worth of labor shall be performed or improvements made by the *first day of January eighteen hundred and seventy-five, and each year thereafter, for each one hundred feet in length along the vein until a patent has been issued therefor; but where such claims are held in common, such expenditure may be made upon any one claim; and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location. * * * -Sec. 5, A. C. May 10, 1872.

Amendment of 1880, Adopting the Calendar Year.- 2.-That section twenty-three hundred and twenty-four of the Revised Statutes of the United States be amended by adding the following words: "Provided, That the period within which the work required to be done annually on all unpatented mineral claims shall commence on the first day of January succeeding the date of location of such claim, and this section shall apply to all claims located since the tenth day of May, Anno Domini eighteen hundred and seventy-two."-Approved Jan. 22, 1880.

Not Required by Statute Before 1872.-Annual labor was not required by either Legislative or Congressional law until after the passage of the A. C., May 10, 1872.

It Was, However, Often Required by District Rules. By some of these rules a man was bound to do some work upon his claim every week, or every month, but these rules in most sections had fallen into disuse at the time of the passage of the Act referred

*In the Revised Statutes the date printed is June 10, 1874, the compilers having overlooked the second Act extending the time, approved June 6, 1874.-18 Stat. L., part 3, page 61.

to. Their provisions both as to amount required and the period in which to perform are largely if not entirely superseded by the terms of the Congressional Act.-See Citations p. 7.

The idea of annual or periodical labor is not new; it was a part of the Spanish system, and generally prevailed on the Pacific slope.

The A. C. May 10, 1872, divided lodes into two classes with respect to labor:

First-Lodes located before its passage.

Second-Lodes located after its passage.

Work on Claims Located Before May 10, 1872.The amount of labor required on all lodes was $10 for each hundred feet, but where claims were held in common, the whole amount of work might be done on one claim. The time for the first work on old lodes was originally fixed to expire May 10, 1873, i. e., one year after the passage of the Act. It was further extended to June 10, 1874, and finally postponed to January 1, 1875.-Thompson v. Jacobs, 2 Pac. 714.

The Act of 1880 made no change either in the amount or time of annual labor on old claims. It has always been and still is, $10 for each 100 feet during each year of our Lord, beginning January 1, 1875; and the time between May 10, 1872 and January 1, 1875, constituted the period for the first required labor.

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.

But few claims remain subject to this law. During the lapse of time, now more than twenty-five years, they have been either abandoned or passed on to patent or have been relocated under the Act of 1872. When so relocated they would be governed by the terms of the next subdivision.

Work on Claims Located Since May 10, 1872.— The various extensions of time for work on old lodes did not apply to the new lodes. The period for the first work was never extended, nor has any change been made except the Act of 1880. Under the original Act the annual period for labor on claims located after its date, May 10, 1872, began on the date of location, and this date was hard to fix with exactness. It might have been the date of discovery, or any date intermediate between discovery and record. The Act of 1880 makes the annual period now coincide with that fixed for old claims, to wit: each calendar year.

Each Claim an Entirety-Work on Subdivided Claim. The 1,500-foot lodes being single claims of that length and a certain amount of work being required upon the claim and the clause as to "each 100 feet in length along the vein" not applying to these new locations, it does not seem that a party, by expending any portion of the full amount, can save any fractional portion of his lode. But if a party own a segregated portion of such claim: Is he required to do the full amount essential to hold a claim, in case the other owners refuse to contribute?

It seems he is under this necessity, and each interested party must see for himself that the amount required to hold the claim is done by some person, and if the whole burden falls upon one party, the rest of the claim becomes forfeit to such party. There is no distinction made between those who own separate feet and those who own undivided interests in the claim.

The word "co-owners," used in the Act, does not appear to be used in its ordinary acceptation, as tenants in common, but to include all the owners, either in common or after they have segregated their interests; the claim seems to be treated as an individual item so far as the relations between the Government and the miner are concerned; if, therefore, all the labor is performed by the owner of the east end, he may claim forfeit of the west end; or if it is all performed by the owner of an undivided half, he is in position to become the sole owner by proper notice under the forfeiture clause upon refusal of the other co-tenant to contribute his proportion. But this is only the apparent reading of the Act as to claims which have been segregated into several parts, and would give a benefit to a party who had no more connection with the other end of the claim than a mere stranger. Consequently this can only be treated as a suggestion of the true construction of an Act which is so worded as to be entirely ambiguous on this point.

The above paragraph is from the Fifth edition of this book in 1881, but we have seen no decision nor found any reason to since change it as the true construction of the Act.

$500 Work Already Done.-The fact that sufficient improvement ($500 worth) has been done to authorize application for patent, does not dispense with the necessity for the annual expenditure.

Pending Application for Patent, until entry, the work must be kept up.-South End Co. v. Tinney, 35 Pac. 89.

Annual Labor After Entry.-It has been decided that_annual labor cannot be required after entry in the Land Office, although the patent has not yet been formally issued; and such decision is clearly correct, because the patent, when it issues, relates back to the date of entry, and so satisfies the wording of the Act, which requires the annual labor each year "until patented. "-Alta Co. v. Benson Co. 16 Pac. 565; 145

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