11. Work may not be resumed by original locators after relocation for abandonment. Slavonian M. Co. v. Vacavich, 7 Sawy. 217; 7 Fed. Rep. 331.

12. "When, therefore, he avails himself of the statutory privilege of resuming work to preserve his estate from forfeiture, we hold that he should have prosecuted the same with reasonable diligence until the requirement for the annual labor and improvements had been obeyed." Honaker v. Martin, 11 Mont. 91; 27 Pac. Rep. 397. (Refusing to follow Belcher Cons. M. Co. v. Defferrari, 62 Cal. 160, and citing Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510; Little Gunnell M. Co. v. Kimber, 1 Mor. Min. Rep. 536 (Colo.).

13. The resumption of work upon a mining claim before the relocation for the purpose of preventing a forfeiture as prescribed by section 2324, United States Revised Statutes, cannot be held to have been prosecuted with due diligence where it appeared that fifteen days prior to relocation all work thereon had ceased. Hirschler v. McKendricks, 16 Mont. 211; 40 Pac. Rep. 290.

14. Resumption of work on a mining claim to avoid forfeiture must be bona fide and not merely formal. Belcher Cons. G. M. Co. v. Defferrari, 62 Cal. 160.

15. Work done for the benefit of a claim, whether by one holding the legal or equitable title thereto, will operate to preserve the claim from forfeiture. Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411.

16. If A. has failed to do his annual labor, and B. thereupon enters to relocate and proceeds so far as to put a notice on a stake at the discovery, but before he has marked the boundaries and otherwise completed the relocation A. re-enters and resumes labor in good faith, A. saves his location and renders null and void the prior acts of the relocator. Gonu v. Russell, 3 Mont. 358; 12 Mor. Min. Rep. 630. 17. By an amended location, a junior locator acquires a right to the conflict with a

18. When A. and B. claim by location, and A. relocates to avoid relocation by strangers, and afterwards acquires B.'s title, the work done on the relocation may be taken as a resumption of work on the original location if A. elects to claim thereunder. Johnson v. Young, 18 Colo. 625; 34 Pac. Rep. 173.

19. Failure to comply with a mining dis trict rule or regulation will not work a forfeiture of the claim unless the rule or regulation expressly so provides. Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411; McGarrity v. Byington, 12 Cal. 426; 2 Mor. Min. Rep. 311; Bell v. Bed Rock T. & M. Co., 36 Cal. 214; 1 Mor. Min. Rep. 45; Johnson v. McLaughlin, 1 Ariz. 493; 4 Pac. Rep. 130; Rush v. French, 1 Ariz. 99; 25 Pac. Rep. 816.

20. Forfeiture of a mining location or of an interest therein, for the non-performance of, or non-payment for, the annual assessment work thereon, is provided for under section 2324, United States Revised Statutes, and is effective only under the conditions therein stated. Com'r to M. C. Duggan, July 1, 1891.

21. The law presumes that locators forfeit their rights by failing to comply with the local rules and customs relative to annual work, although no penalty is specified therein. King v. Edwards, 1 Mont. 235; 4 Mor. Min. Rep. 480.

22. A forfeiture may take place by failing to comply with local rules and regulations of miners. St. John v. Kidd, 26 Cal. 263; 4 Mor. Min. Rep. 454.

23. The failure of a locator of a placer mining claim to perform the annual amount of work required by section 2324, United States Revised Statutes, renders the claim subject to relocation. Morgan v. Tillottson, 73 Cal. 520; 15 Pac. Rep. 88.

24. A failure to perform the amount of work required by local rules of miners is an abandonment. St. John v. Kidd, 26 Cal. 263; 4 Mor. Min. Rep. 454.

25. The failure to perform the work on a mining claim required by law amounts to an abandonment of the claim, and thereupon it may be occupied by another. Kramer v. Settle, 1 Idaho, 485; 9 Mor. Min. Rep. 561.

39. Forfeiture must be pleaded to render evidence thereof admissible. Hammer v. Garfield M. & M. Co., 130 U. S. 291; Morenhaut v. Wilson, 52 Cal. 263; 1 Mor. Min. Rep. 53; Quigley v. Gillett, 101 Cal. 462; 35 Pac. Rep. 1040; Renshaw v. Switzer, 6 Mont. 464; 13 Pac. Rep. 127; 15 Mor. Min. Rep. 345; Wulff v. Manuel, 9 Mont. 279; 23 Pac. Rep. 723; Mattingly v. Lewisohn, 35 Pac. Rep. 111; Bishop v. Baisley, 41 Pac. Rep. 936.

40. The defendant in an ejectment suit involving a mining claim may prove plaintiff's title to have been lost by abandonment of the claim under a general denial of plaintiff's title. Bell v. Brown, 22 Cal. 671; 5 Mor. Min. Rep. 240.

41. Abandonment need not be specially pleaded in order to allow proof thereof. Bell v. Bed Rock T. & M. Co., 36 Cal. 214; 1 Mor. Min. Rep. 45.

42. Where defendant in an adverse suit

relies upon a relocation of plaintiff's location after forfeiture thereof, he is not obliged to plead such forfeiture specially. Steel v. Gold Lead G. & S. M. Co., 18 Nev. 80; 1 Pac. Rep. 448; 15 Mor. Min. Rep. 292.

43. Proof of the abandonment of a mining claim by a defendant may be given by plaintiff in ejectment therefor, without a special plea, where the defendant pleads, and relies on as a defense to the action, a location prior to that of plaintiff. Trevaskis v. Peard, 44 Pac. Rep. 246 (Cal.).

44. Under the act of May 10, 1872, representation by annual performance of labor is constituted one of the muniments of title. No forfeiture can take place until after full completion of the year during which by law work may be done. Belk v. Meagher, 3 Mont. 65; 104 U. S. 279; 1 Mor. Min. Rep. 510.

45. An abandoned claim is open to relocation January 1st of the year succeeding the abandonment. Pharis v. Muldoon, 75 Cal. 284; 17 Pac. Rep. 70.

46. A mining claim is not subject to relocation for abandonment until after the expiration of the calendar year. Mills v. Fletcher, 100 Cal. 143; 34 Pac. Rep. 637.

47. A relocation of a mining claim for abandonment before the expiration of the

8 Pac. Rep. 580.

48. A relocation made at 1 A. M., January 1st, questioned but not passed upon. Pharis v. Muldoon, 75 Cal. 284; 17 Pac. Rep. 70.

49. To give a person the right to procure by forfeiture proceedings under section 2324, United States Revised Statutes, the interest of another in a mining claim held by possessory title, the two persons must not only be co-owners at date of the forfeiture notice but during the year in which the work was done upon the claim. Turner v. Sawyer, 150 U. S. 578.

50. Notice of forfeiture, under section 2324, United States Revised Statutes, addressed to a co-owner then deceased, is of no effect. Billings v. Aspen Cons. M. Co., 51 Fed. Rep. 338.

51. The defendant in an adverse suit cannot defeat plaintiff's title by showing that a forfeiture notice given by plaintiff to coowners was insufficient. That point may be raised only by the co-owners. Becker v. Pugh, 17 Colo. 243; 29 Pac. Rep. 173. (First trial, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304.)

52. A co-owner who has been "advertised in the matter of expenditures, and that there out" may show his compliance with the law was in fact no forfeiture. Brundy v. Mayfield, 15 Mont. 201; 38 Pac. Rep. 1067.

53. Failure to perform annual labor on the senior of two conflicting locations during the calendar year does not operate to vest title to the land in conflict in the owner of the

junior location, who can secure same only by

a relocation made before resumption of work by the senior locator. Oscamp v. Crystal River M. Co., 19 U. S. App. 18; 58 Fed. Rep. 293.

54. Where a junior location overlaps a senior location it is not validated as to the conflicting ground by the abandonment of the senior location. In order to secure a right to such ground the junior locator must relocate it. Omar v. Soper, 11 Colo. 380; 18 Pac. Rep. 443; 15 Mor. Min. Rep. 496.

55. If the senior of two conflicting locations be abandoned, and during such abandonment the junior locator files an amended location notice embracing such conflict, the right to the conflict vests in the junior

56. Where, after publication of notice of application for patent and before entry, a mining claim is relocated by a stranger for failure on part of the applicant to make the required annual expenditure, and such failure and relocation are shown at a hearing, the entry will be canceled and the parties left to litigate their conflicting claims in court. The Land Department will not pass upon the validity of the relocation in such a case. Little Pauline Lode v. Leadville Lode, 7 L. D. 506.

57. After application for patent and publication of notice thereof, and before entry, a claim may be relocated for abandonment, and in case of such relocation the application will be canceled if no adverse claim, or suit based on an adverse claim, is pending against said application. Continental G. & S. M. Co. v. Gage, 10 L. D. 534.

58. Mineral application, followed by no tice, segregates the land applied for, and abandonment thereof must be shown and the application canceled before a second application is received for the land. Andrew J. Gibson (on review), 21 L. D. 219.

59. Where a claim has been applied for and subsequently forfeited, a relocator who desires to apply for a patent should secure the cancellation of the existing application by the Land Department. Steel v. Gold Lead M. Co., 18 Nev. 80; 1 Pac. Rep. 448; 15 Mor. Min. Rep. 292.

location; for by the provisions of section 2322, the locator of such claim has the exclusive right of possession and enjoyment of all the surface included within the lines of the location, and of all the veins, lodes or ledges throughout their entire depth, the top or apex of which lies inside of such surface lines.' If the locator then has the exclusive right of the possession and enjoyment, how can a prospector go on such claim and make a valid discovery?" Branagan v. Dulaney, 2 L. D. 744.

63. A portion of a mining claim may be abandoned (on principle of estoppel) by assenting to and encouraging another to locate the same and to spend money in work thereon. Golden Terra M. Co. v. Mahler (Smith), 2 Dak. 377; 11 N. W. Rep. 97; 4 Pac. Coast Law Jour. 405; 4 Mor. Min. Rep. 390.

64. A valid location cannot be based upon a discovery made within the limits of a prior subsisting location. It must be made upon the unoccupied and unappropriated domain, and the mere fact that the prior locator does not object is immaterial, unless he abandons the ground in conflict. Armstrong v. Lower, 6 Colo. 393; 15 Mor. Min. Rep. 631. (Affirmed, 6 Colo. 581; 15 Mor. Min. Rep. 458.)

65. The validity of a location, based upon a discovery made within a prior location with the consent of the prior locator, may not be questioned on that account by a grantee of such prior locator, as the assent of his grantor to the making of the second discovery and location operated as an abandonment of con

61. Where a claim has been abandoned after publication of notice of application for patent therefor and then relocated by a stranger, and subsequently the applicant makes entry and secures a patent, he will be declared to hold title under such patent as trustee for the relocator. (Strong dissenting opinion.) South End M. Co. v. Tinney, 35 Pac. Rep. 89.

62. "A location since the 10th day of May, 1872, based on a discovery made within the limits of a claim properly located, and not abandoned or lost by failure to perform the

(Mahler), 2 Dak. 377; 11 N. W. Rep. 97; 4 Pac. Coast Law Jour. 405; 4 Mor. Min. Rep. 390.

66. The valid location of a mining claim is a grant from the government to the person making the location. The location is the inception of the grant, and the patent is its consummation. The grant is kept alive by representation (work). A failure to represent forfeits the grant and makes void the title acquired by location, and the ground thereupon becomes again subject to location and purchase. Renshaw v. Switzer, 6 Mont. 464; 13 Pac. Rep. 127; 15 Mor. Min. Rep. 345.

67. A valid location is the inception of a grant from the United States, the patent being the consummation, and the property located may not be sold by the United States